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vice for a year,
service must be for one whole year.
Fifthly, Of Sect. 7 enacts, “ that if any unmarried person, not having child or chilsettlement by dren, shall be lawfully hired into any parish or town for one year, such service hiring and
shall be adjudged and deemed a good settlement therein, though no such notice in writing be delivered and published, as is herein before required.”
The 8 and 9 W.III. c. 30, s. 4. Hiring and ser
“ And whereas some doubts have arisen touching the settlement of unmarried persons, not having child or children, of unmarried per •
lawfully hired into any parish or lown for one year, be it therefore enacted son, &c., a settle
and dec ed by the authority aforesaid, that no such person so hired as The hiring and aforesaid, shall be adjudged or deemed to have a good settlement in any
such parish or township, unless such person shall continue and abide in the
same service during the space of one whole year.” No person bound
And the 12 Anne, c. 18, s. 2, reciting the provision in the 8 & 9 W. III. apprentice, or c. 30, as to poor persons residing in other than their own parishes, under being a hired ser- certificates, and that many persons bringing such certificates frequently take came into a pa
apprentices and hire and keep servants, who thereby obtain settlements and rish by certifi- become a great burthen to such certificated parishes : enacts that, If any cate, shall gain a
person whatsoever, who, upon or after the 24h of June, 1713, shall be an by reason of such apprentice, bound by indenture to, or shall, upon or after the said 24th of hiring and ser. June, 1713, be a hired servant to or with any person whatsoever, who did vice, &c.
come into or shall reside in any parish, township, or place, in that part of Great Britain called England, by means or licence of such certificate, and not afterwards having gained a legal settlement in such parish, tounship, or place, such apprentice, by virtue of such apprenticeship, indenture, or binding, and such servant by being hired by, or serving as a servant, as aforesaid, to such person, shall not gain or be adjudged to have any settlement in such parish, township, or place, by reason of such apprenticeship or binding, or by reason of such hiring or serving therein; but every such apprentice and servant shall have his and their settlements in such parish, township, or place, as if he or they had not been bound apprentice or apprentices, or had not been an hired servant or servants to such person, as aforesaid ; any act or acts of parliament
to the contrary notwithstanding. The repealed By 33 Geo. III. c. 54. s. 24, “ No person who shall be an apprentice, bound friendly society
by indenture to, or shall be a hired servant to or with any person who did Provisions to come into or shall reside in any parish, township, or place, under the authoprevent settle. rity of this act, and not afterwards having gained a legal settlement in such ments being gained under par
parish, township, or place, shall gain or be adjudged to have any settlement
in such parish, township, or place, by reason of such apprenticeship or bindstances. ing, or by reason of such hiring or serving therein; but all such apprentices
and servants shall have their settlements in such parish, township, or place, as if they had not been bound, or had not been hired to such person as aforesaid ; any act or acts of parliament to the contrary notwithstanding. But the recent act relating to Friendly Societies, does not contain the like provision. See Vol. II. title, friendly Societies.
By 52 Geo. III. c. 72, s. 8, it is enacted, “ That from and after the passing of this act, no person or persons shall, by residence in any house, lodge, or other building erected or to be erected within the said forest, (of Alice Holt, in the county of Southampton), or by hiring and service either for the preservation of the said woods or plantations, or the game in the said forest, gain thereby any settlement in the parish of Binsted in the said county in which the said forest is situate."
By general tumpike act, 3 Geo. IV. c. 126, s. 51, and 4 Geo. IV. c. 95, s. 31, no apprentice or servant of a collector or renter of tolls, or weighing machine, or residing in toll-house, shall thereby gain a settlement; and see Chitty's Col. Stat. Vol. I. 492, note (m.)
There are also other statutory provisions precluding persons coming into parishes under particular circumstances, from acquiring settlements in those parishes, whilst they continue within the operation of those provisions, as will
be seen hereafter. Requisites in Having thus collected the enactments which affect a settlement by hiring general of a valid and service, it will be found by the judicial decisions which are given in the settlement. following pages, that the requisites of this description of settlement may be
stated as follows:
Ist. With respect to the hiring .—That the master, or mistress, and ser
vant, whether male or female, must be capable of entering into such a con- Fifthly, of tract with each other; and all persons, (except husband and wife), however settlement by nearly related to each other, may make such a contract, even though one or
service, both parties be under age.
2nd. The parties must not merely be competent to make a binding contract as between themselves, but they must be in that unfettered condition which the poor laws require in order to create a right of settlement by such contract duly performed. For instance, the master must not be a certificate man, nor must the servant be already under a subsisting contract as an apprentice, or soldier, or married, or a widower with children, &c.
3rd. The contract must be for a year prospectively from its date; but it is not essential that it should be actually so expressed, for if it can be collected from the other terms of the contract, as the wages, notice to leave, &c., that the
parties intended that the hiring should be for a year, that will suffice. 4th. The master must have the control over the servant's whole time and services :—for if it is stipulated by the contract that the servant shall have the right to certain days or even hours to himself, independently of his master, although he in fact employ those hours in his master's service, being remunerated for them, the contract will not confer a settlement.
5th. With respect to the service.—This likewise must be for a year; though intervals of absence by the master's authority will not prejudice: for Requisites of the the master may dispense with a portion of the service.
service to give a 6th. It is not necessary that the whole year's service should be under the yearly hiring, though it must be in the same service; for if a person serve a few months without any yearly hiring, and then, without quitting or suspending the service, contract to serve the same master for a year, and continue to serve under this contract a length of time sufficient, (even though it be forty days only), when added to the time served before the hiring for a year, to make up a whole year's service, the settlement will be complete.
7th. It is not essential that the service should be under the same master ; for if the same service is continued under the lessee, assignee, executor, &c., of the master with whom the contract was made, and the service in part performed, it will be sufficient for the purposes of the settlement.
8th. It is not necessary that any part of the service should be in the parish or place where the contract of hiring is made; or that the whole year's service should be in one and the same parish or place; or that it should be in the parish or place where the master resides : for wherever the servant resides the last forty days for the purposes of the service, there he will acquire his settlement.
9th. The forty days' residence for the purposes of the service, are not required to be consecutive; though they must be within the compass of a year. Thus if a servant during a hiring and service for a year, serve in several parishes, his settlement will be in that parish in which he has last served, if in the whole he has resided and served there forty days.
Such are the rules of law—by which settlements by hiring and service are govered.
The decisions will be arranged under the three following heads and sub-
I. Of the Contract of Hiring ;-and herein,
Fifthly, Of settlement by hiring and
II. The Service under the Contract ;-and herein,
III. The Place in which the Settlement is Acquired.
upon the service will not defeat
I. Of the Contract of Hiring.
First, Of the Parties to the Contract.(a) First, Parties to The 3 W. & M. c. 11, s. 7, enacts “ that if any unmarried person not the contract. having child, or children, shall be lawfully hired into any parish or town for
one year, such service shall,” gc., see ante, 318. Therefore the servant must be unmarried, without children, and sui juris.
The master may be a relation: he must not be a certificate man. A widower may
“ Any Unmarried Person.”] Anthony v. Cardigan, 2 Bott, 177; 1 Nol. P. L. gain this settle.
339, it was held that a widower is within the meaning of the act, and may
gain a settlement by hiring and service. If a married man Rex v. Banknewion, 2 Burr. S. C. 455; 2 Bott, 179; 1 Nol. P. L. 339. agree to a hiring In this case the pauper, a married man, agreed on the 16th of February, subject to approbation, and his
with the son of H. W., to serve H. W. for a year from the 24th of that wife die before month, at five guineas' wages, provided H. W. should approve the terms. the agreement is complete, and
On the 18th the pauper's wife died, and on the 24th he went into the service then the hiring of H. W., who on that day agreed to the terms made by his son. By the be completed, it Court: It is clear that the hiring was on the 24th, for the father might have
dissented from the conditional agreement made by the son on the 16th; a
settlement was therefore gained by the hiring and service. If the man be In Rex v. Allendale, 3 T. R. 382; 2 Bott, 180; 1 Nol. P. L. 338. The contract is made, pauper being unmarried, was hired for a year to serve T. B. at Allendale, marrying be- as a hind. It is the custom of the country to hire married men as tween the hiring hinds, because their wives are bound to perform certain services for the and entering
master in time of harvest; and when the wife of a hind dies, he must hire
a female servant to perform such services. It was in the contemplation of the settlement in both the master and servant, and perfectly understood by them at the time the absence of
of hiring, that the pauper would marry before he entered upon his service. After such hiring, and before the commencement of his service, he married, and entered
his service a married man, and served out the whole year a married man. It was contended, that the time when the service commences, and not the time of the hiring, is the criterion, in determining whether the case comes within the statute.-By Lord Kenyon, C. J. The principle on which this question must be decided has been long since settled. In Farringdon v. Witty, and Rex v. Banknewton, the Court seemed t think, that the time to be attended to was the time when the contract was made, which has ever since been considered as the rule; he was unmarried when he entered into his contract; and whether he married the day before the service commenced or afterwards, it makes no difference.—Buller, J., said, that neither the custom of the country, nor the agreement between the parties, went to compel this pauper to marry before he entered upon this service; he was at liberty to do so or not, as he pleased. The custom of the country only amounts to this, that part of the service is to be performed by a female ; it is therefore indifferent to the master whether the servant be married or not, because if he be single he must hire some female to perform those services. As to the case of a contract at an unreasonable distance of time before the service is to commence, that would be strong evidence of fraud. So if the pauper had been under an agreement to marry, and his master had told him that he should not marry for a month to evade the statute, that also might be considered fraudulent.
(a) See the division of the subject, ante, 319.
The same point was given up without argument, in Rex v. Stannington, First, Parties to 3 T. R. 385; 1 Nol. P. L. 338.
the contract. Farringdon v. Witty, 2 Salk. 5:27. A servant came into a parish and hired for a year, served half a year, and then married ; it was determined ing the service
A marriage dur. that the marriage did not defeat the settlement, for it did not hinder the does not defeat service, and that the contract was not dissolved by the marriage. So also in Rex v. Clent, 2 Bott, 417; Rex v. Sutton, 2 Bott, 418; Rex v. Hanbury, 2 Burr, S. C. 322 ; 1 Nol. P. L. 338. The same point in Rex v. St. Giles's, Reading, post.
“ Not having child or children,” 3 W. III. c. 11, s. 7.] In Anthony v. A child emanci. Cardigan, (anté, 320) the pauper had a daughter who was married and lived pated is not withsettled elsewhere ; and it was decided that he was a single person within the of the statute. meaning of the act, though not expressly within the letter of it. The meaning of the statute is, that he might not bring any consequential damage to the parish ; which he could not possibly do here.
So in Rex;v. Cowhoneyborne, 10 East, 88; 1 Nol. P. L. 339, 345; where the pauper, after his wife's death, hired himself and served five years under a hiring for a year at T.; on the death of the pauper's wife, N., his brotherin-law, took the pauper's child, an infant, out of kindness to him. The pauper's daughter also (eleven years of age) went with his consent to N., the brother-in-law, to nurse her sister, who died in a year. She lived with N. for some time, under circumstances which amounted to emancipation; and they therefore held, that the pauper was not disqualified from gaining a settlement by hiring and service.
Rex v. New Forest, 5 T. R. 478; 1 Nol. P. L. 340. On Martinmas- But a child whose day, 1777, E. Coates hired himself and served a year in the township of emancipation is New Forest; on 220 December, 1777, he married. The pauper, son of within the 'act. E. C., on the same Martinmas-day, (being under sixteen, and without having gained a settlement) hired himself for a year to R. N., of Ellerton, and served the year.”—Per Lord Kenyon, C. J. The construction which the Court has put upon the 3 W. & M. c. 11, s. 7, is, that though the person so hired have children, yet if they have gained settlements for themselves, distinct from the father's, the statute will not prevent his acquiring a settlement by serving a year under that hiring. But here the son was not separated from the father when the latter was hired; he had gained no settlement for himself; he had entered into a contract, “ which might or might not have been completed,” but which, when completed, would give him a settlement; but at the time when the father entered into the relation of a servant at New Forest, the son formed a part of his family. (See this case, ante, 309.)
Rex v. Davolish, 1 B. & A. 281., The pauper was duly bound apprentice A hiring during to one Pearcy, till she should attain the age of twenty-one. Whilst under a subsisting ap
prenticeship, inthis indenture she served John Blackmore, with Pearcy's consent, for two sufficient. years, in the parish of Dawlish; and after that she hired herself, in May, as a yearly servant, to Mrs. Bryant, without the knowledge of her master. The indentures expired on the September following. It was held that this hiring was not a valid one, so as to give a settlement, the pauper not being sui juris to contract at the time of the hiring. See also Rex v. Bow, 4 M. & S. 383.
Rex v. Norton, 9 East, 206; 2 Bott, 264. Case: The pauper was duly A deserter can enlisted as a private in his Majesty's marine forces, from which he deserted, sain no settleand then hired himself for a year, and served a year under the hiring and service. Afterwards he was taken up for desertion, tried, and convicted. It was urged that the pauper was as much sui juris as the militia man.—Lord Ellenborough. That was the case of a lawful contract with a just exception. If this case had been res integra there might have been great doubt whether the word “ lawfully,” were not to be narrowed to a contract and the terms of it lawful; and if lawful in its form, whether the party serving under it could be disabled from gaining a settlement by reason of his having before contracted an engagement with another person, inconsistent with it. But a variety of cases have decided the question in the case
First, Parties to of an apprentice: and this not on the ground of its being an excepted case, the contract.
or as standing upon any occult efficacy in the indenture; but upon the broad principle that one, who has contracted a relation which disables him from serving any other without the consent of his first master, is not sui juris, and cannot lawfully bind himself to serve such master, so as to gain a settlement by such hiring. In reason and principle it can make no difference whether he be originally bound by a contract of apprenticeship, or by any other contract equally obligatory on him, which disables him from binding himself to serve a second master. The objection is that he cannot give the master a control over his service for the whole period which the master stipulates for, and has a right to require by the contract. The king's officers might at any time have reclaimed him and taken him out of the service in which he was engaged: he cannot, therefore, be said to have been lawfully hired into it. A soldier is at least as much bound to the service of the king, as an apprentice is to that of his master; and nothing is to be inferred from the measured language of the Court in the case of an apprentice, in not laying down the principle broader than the matter in judgment required. Nothing was said intimating an opinion that the rule was confined to the case of an apprentice, and therefore we must look to the reason and principle of those decisions when we are called upon to apply the rule to similar
The other judges agreed that the principle was, that if the party cannot make such a contract for his service, of which the master may avail himself
for the whole year, no settlement can be gained. A private soldier, Rex v. Beaulieu, 3 M. f. S. 229; 1 Nol. P. L. 340. Removal from with the permis- Milton to Beaulieu, the pauper's maiden settlement. Order confirmed. sion of his officer, entered into a Case : The pauper is the wife of Hans Peters, a Swede. Some years ago contract of hiring he entered as a soldier into the sixtieth regiment of foot, and in 1806 was and service, conditionally for a
invalided, and sent to the depôt at Lymington. It was suggested to governyear, if so long ment by the commanding officer there, that it would be an economical plan allowed to be
to give the invalids leave of absence, upon their agreeing to relinquish their absent, and serv
pay during such absence. The suggestion was approved, and ordered to be Held not to gain carried into execution. In 1808, H. P. hired himself as a monthly servant a settlement, as not being sui
to Mrs. B., and afterwards, on the 20th of July in that year, hired himself juris.
to Mrs. B. for a year, and served such year in Lymington. Previous to this second hiring, Mrs. B. applied to the commanding officer at the depôt, to know if P. might hire himself for that period, and was told that he might. During his service with Mrs. B. he received no pay, nor was he called upon to, nor did he, perform any military duty; but he used to go to the depot from time to time to get his furlough renewed, which took him half an hour. The commanding officer could send for him at any time, if the exigencies of the state required it. The case having been argued, by Selwyn in support of the order, and Scarlett and Gazelee against it,-Lord Ellenborough, C. J., said, To confer a right to a settlement by hiring and service for a year, as there are no words in the statute which qualify the general sense of the word hiring, I must take it to mean an absolute, unqualified, indefeasible hiring, that is, a hiring by which the party who hires himself, has the power of communicating to the master an absolute right to his service for the whole time. In order, therefore, to do this, the party must be sui juris, and have the faculty of disposing of his own service. I think this case falls strictly within the analogy of the case of the apprentice, who, in respect of his obligation to serve one master, is disabled from entering into a contract to serve another. However, the cases of the militia-men have been pressed upon our attention. I would wish to speak of those cases, as of the decisions of persons who have gone before us so highly venerable, with all the respect that is due to them, and I would therefore avoid trenching upon them as little as possible. But when I find them speaking of leaning in favour of settlements, and when I recollect that a pauper must be provided for somewhere, either as a settled inhabitant or as casual poor, and when I find too that one of those decisions goes the length of holding, that eleven months may mcan a year, I really am unable, with all the respect I bear to those persons who decided them, to go along with them so far
ed the year :