The same point was given up without argument, in Rex v. Stannington, First, Parties to 3 T. R. 385; 1 Nol. P. L. 338.

Farringdon v. Witty, 2 Salk. 527. A servant came into a parish and hired for a year, served half a year, and then married; it was determined that the marriage did not defeat the settlement, for it did not hinder the 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. Cardigan, (ante, 320) the pauper had a daughter who was married and lived settled elsewhere; and it was decided that he was a single person within the 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 Martinmasday, 1777, E. Coates hired himself and served a year in the township of New Forest; on 22d December, 1777, he married. The pauper, son of 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. Dawlish, 1 B. & A. 281., The pauper was duly bound apprentice to one Pearcy, till she should attain the age of twenty-one. Whilst under this indenture she served John Blackmore, with Pearcy's consent, for two 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 enlisted as a private in his Majesty's marine forces, from which he deserted, and then hired himself for a year, and served a year under the hiring. 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

the contract.

ing the service does not defeat

A marriage dur

the settlement.

A child emanci pated is not within the meaning of the statute.

But a child whose emancipation is incomplete, is within the act.

A hiring during a subsisting apprenticeship, in.. sufficient.

A deserter can gain no settlement by hiring and service.

the contract.

First, Parties to of an apprentice: and this not on the ground of its being an excepted case, 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

A private soldier, with the permission of his officer, entered into a

contract of hiring

and service, conditionally for a year, if so long allowed to be

absent, and served the year:

a settlement, as not being sui

juris.

cases.

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.

Rex v. Beaulieu, 3 M. & S. 229; 1 Nol. P. L. 340. Removal from Milton to Beaulieu, the pauper's maiden settlement. Order confirmed. is the wife of Hans Peters, a Swede. Some years ago Case: The pauper he entered as a soldier into the sixtieth regiment of foot, and in 1806 was invalided, and sent to the depôt at Lymington. It was suggested to government by the commanding officer there, that it would be an economical plan to give the invalids leave of absence, upon their agreeing to relinquish their 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 to Mrs. B., and afterwards, on the 20th of July in that year, hired himself 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 depôt 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 mean 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

the contract.

Perhaps, therefore, it may be the best thing to say of the militia-men's cases, First, Parties to that they are to be considered as exceptions. Here, it appears, that there has been a hiring for a year, but not a lawful hiring in the sense of an effectual hiring. An effectual hiring is, where the servant is enabled to give the master a quid pro quo. Had this person the power of so doing? He had not. There was a halt, and a pause to be made four times during the year, until he should renew his furlough. If the question were raised upon special verdict, whether this was an effectual hiring, understanding by that that the party must have a capacity of conferring what he stipulates for, could it be argued upon a statement of these circumstances, that the pauper's husband really passed to the master an interest in the whole of his service? His service in reality belonged to the crown, and he could only contract for so much of it as was remitted out of the right of the crown. It appears to me, therefore, that here has been no lawful hiring for a year, inasmuch as the servant had not the faculty of communicating the service he contracted for. It is said, here was no fraud, and that is true; but there is the vice of the argument, for this is not a question between the master who hires, and the man who is hired, but whether a condition, which the legislature has imposed on this branch of settlements, has been complied with. The question is, whether this be such a hiring as the legislature intended. It seems to me that it is not, and that the reasoning in the case of the apprentice applies with full force to the present case.-Le Blanc, J., among other things, said, if the pauper was a soldier, and subject to a control or command inconsistent with his entering into any other absolute engagement to serve another master, his leave of absence must have been renewed, and if not renewed, he would be obliged to return to his duty under the penalty of being treated as a deserter. This is not like a conditional contract, for here, at no time, could the party make a valid contract for a year. Bayley, J., thought that this hiring was sufficient to confer a settlement at Lymington. It seems to me that here the party was sui juris to enter into the contract; that this was a contract which was only defeasible, and would confer a right of action to the master, if the servant absented himself on any other grounds except that of his being called upon by the act of government. For these reasons, and as I do not find any thing in the statute but the word lawful, to limit the nature of the hiring, and inasmuch as there has been a defeasible hiring for a year, which has not been defeated, and the party who was hired committed no fraud, but communicated the circumstances to the person who hired him, it strikes me, that this was a sufficient hiring to confer a settlement. (Dampier, J., was absent.) Orders confirmed.

Rex v. Holsworthy, 6 B & C. 283. Order of removal of F. H. Trim, &c., from Thornbury to Holsworthy, confirmed. Case: In May, 1819, the pauper was enrolled as a substitute in the S. D. militia, as a private, to serve for five years. In June, 1822, whilst he was still a member of the corps, being at Plymouth, he was sworn in a recruit of the 5th regiment. When the serjeant paid him the enlistment money, the pauper told him he was in the militia, and the serjeant bid him say nothing about it. He did not, and was afterwards convicted and imprisoned for it. In 1823, he hired himself, and served for a year in Holsworthy.—Bayley, J. I think this case does not admit of any doubt. It is not necessary to say whether a militia man may or may not gain a settlement by serving under a yearly hiring for a whole year, if at the time of making the contract he communicates to the party with whom he is contracting that he is in the militia, and therefore liable to be called out during the year. If the master choose to engage the servant, subject to the risk of his being called out to perform the duties of a militia man during the year, I do not see that there is any thing illegal in such a bargain. It may be considered a conditional hiring during the year, and if the militia are not called out, a settlement may perhaps be gained by serving under it. But what is the contract of hiring in this case? The contract is one by which the master stipulates to have, and the pauper stipulates to give his services for one whole year; there is no qualification or condition whatever in the contract, and if there were any

A pauper, being in the militia, cannot lawfully

hire himself for a year, without disclosing that fact to his mas

ter.

the contract.

First, Parties to it ought to have been stated, and cannot be inferred. I do not presume fraud, for the non-communication of the fact of the pauper's being in the militia may have arisen from his considering it wholly immaterial, from omission, or from any other circumstances. Without, therefore, breaking in upon any case in which it has been decided that a militia man, who, in his contract of hiring, stipulates for the time that he may be called upon to perform his duty in the militia, may gain a settlement by serving for a whole year under such a hiring, I think that the pauper, not having communicated to the party whom he contracted to serve for a whole year, that he was in the militia, cannot be said to have " lawfully hired himself," and therefore he gained no settlement in Holsworthy.-Holroyd, J. It is not to be presumed that, at the time of the hiring, the pauper communicated to his master that he was in the militia; and there is nothing in this case to shew that a communication was made. The case seems to fall within the principle laid down by Lord Ellenborough, in Rex v. Norton. It is said, that this case differs from that, because the militia, not having been called out during the year, there was a year's service under a conditional hiring; but the objection is, that the pauper was not capable of making a contract, so as to give the master a control over his services during the whole year. Now no communication having been made to the master that the pauper was in the militia, I am of opinion that this is an absolute, and not a conditional hiring. It is quite clear that the pauper was not capable of making an unconditional contract to serve for a year.-Littledale, J., concurred. Order of sessions quashed.

A pauper, who had volunteered into the militia, cannot lawfully hire himself, unless he discloses this fact to his master.

Rex v. Taunton, St. James, 9 B. § C. 831. Order of removal from Taunton, St. James, to Milverton, quashed. Case: The pauper, at Lady-day, 1811, hired himself as a servant in husbandry for a year, to Mr. Handford, of Milverton; after serving him for three months, having, at the Christmas preceding, volunteered into the local militia of Somerset, he went out into actual service for three weeks, and then returned to Handford's service, remained till Lady-day, 1812, and received his wages, deducting for the three weeks of his absence. The pauper did not tell Handford when he first bargained with him, that he was in the militia, but told him a week or two afterwards, and Handford said it did not signify, for the pauper could, at the end of the year, deduct for the time he was absent.-Bayley, J. This case depends on the construction of the 15th s. of 48 Geo. III. c. 111. The 3 Wm. III. c. 11, requires that in order to gain a settlement by hiring and service, the party shall be lawfully hired for a year. It has been established by several decisions, that a party, at the time of hiring, must be sui juris, so as to be competent to give that species of service which he contracts to give. Upon this principle, it has been held, that neither a deserter from the King's service, nor an invalid soldier, having leave of absence, nor a militia man, can lawfully hire themselves for a year, so as to gain a settlement. In Rex v. Holsworthy, it was held that if a person who had been enrolled as a substitute in the militia, and hired himself for a year, did not, at the time of hiring, inform his master that he was a militia man, no settlement was gained. Now that decision applies to the present case, unless it be distinguishable by reason of 48 Geo. III. c. 111, s. 15. That provides "that no ballot, enrolment, and service under that act shall extend to make void or in any manner to affect any indenture of apprenticeship, or contract of service between any master or servant, notwithstanding any covenant or agreement in any such indenture or contract; and no service under that act of any apprentice or servant shall be deemed or construed, or taken to be an absence from service, or breach of any covenant or agreement as to any service, or absence from service, in any indenture of apprenticeship, or contract of service." These words will undoubtedly apply to all contracts of service existing at the time of the ballot or enrolment, as well as to those made afterwards. The question is, whether they include all contracts whatever, or those only which were in existence at the time of the ballot or enrolment. Now, in order to ascertain the sense in which they are used in this act, we may fairly look to other acts relating to the same subject matter; and if we find the words used in a restrained

the contract.

sense in those acts, we ought to construe them in the same sense in First, Parties to this, for it is a fair rule of construction that the same words in a statute in pari materiâ respecting the same subject, should receive that same meaning. No such words are to be found in 42 Geo. III. c. 90, but they are to be found in 52 Geo. III. c. 68, s. 63. If, as used in that statute, they apply to contracts existing at the time of the ballot or enrolment, that is a legislative exposition of them, and they ought to receive the same construction in the 48 Geo. III. c. 111, s. 15. Now the words in 52 Geo. III. manifestly apply to contracts existing at the time of ballot or enrolment, and not to contracts subsequently made. The 60 sec. enacts "that the enrolment of servants shall not vacate or rescind contracts between master and servant, unless the local militia shall be called out, or unless the person enrolled shall leave the militia for the purpose of being trained. That section applies to contracts existing at the time of the enrolment, for such contracts could only be vacated or rescinded by the enrolment. Section 63 is a transcript of s. 15 of 48 Geo. III. c. 111. It begins, “Provided always,” and then proceeds in the same words. Now a proviso is something engrafted on a preceding enactment, and the proviso in the 63 sec. manifestly applies to the enactment in the 60 sec., that enrolments shall not rescind contracts made between masters and servants: the words of the proviso apply to the same species of contract. Then that being the fair meaning of the words used in 52 Geo. III. c. 68, they ought to receive the same construction in 48 Geo. III. c. 111, and giving them that construction, there is nothing in that statute enabling such person to make an absolute contract for a year, so as to gain a settlement. The clause ends with a proviso as to service: that may make the service good, but my opinion is not founded on the description of service, but upon the want of capacity to contract. I think that the pauper was under a disability at the time of hiring, to contract to perform the service which he undertook to perform, and therefore that no settlement was gained in Milverton.-Littledale, J. It is a general principle of law, that if a man enters into a contract, he ought either to be in a situation to perform it, or to inform the person with whom he contracts of his disability. This is a duty founded on moral principle, and is due from one member of society to another. If the words of an act are capable of two meanings, and one construction will have the effect of enforcing this moral obligation, and the other will not, that construction should be adopted which will have the effect of enforcing it. Now it is contended that the words of the 48 Geo. III. c. 111, s. 15, "no ballot, enrolment, and service under this act shall extend to make void, or in any manner to affect any indenture of apprenticeship, or contract of service between any master and servant," extend not only to contracts existing at the time of their enrolment, but to contracts subsequently made. I think the words "made void" ex vi termini apply to contracts in esse. But supposing that to be doubtful, then calling in aid the principle that a man is bound to disclose any thing which may disable him from performing his contract, I will, in order to give effect to that principle, give the words a limited construction, and hold that they extend only to contracts existing at the time of the ballot or enrolment. Putting that construction on the words, a party, in order to gain a settlement by a contract of hiring made after ballot or enrolment, must disclose his disability to the person with whom he contracts. This would be the construction I should have put upon the words, if the 48 Geo. III. c. 111, had stood by itself. But the local militia act, 52 Geo. III. c. 38, s. 63, contains an enactment in the same words; and by s. 60, these words are confined to contracts existing at the time of enrolment or ballot. We violate no rule of construction, by giving to the same words in two acts, relating to the same subject, the same meaning. I think, therefore, if there be any ambiguity in the 48 Geo. III., it is removed by the legislative exposition put upon the words in 52 Geo. III.; and, therefore, there was no lawful hiring for a year.-Parke, J. The question is, whether at Lady-day, 1811, there was a lawful hiring for a year; assuming that the subsequent conversation between the master and servant, amounted to a second hiring, it was not