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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 the contract. 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 he 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, A pauper, being
in the militia, &c., from Thornbury to Holsuorthy, confirmed. Case: In May, 1819, the cannot lawfully pauper was enrolled as a substitute in the S. D. militia, as a private, to hire himself for a serve for five years. In June, 1822, whilst he was still a member of the year, without corps, being at Plymouth, he was sworn in a recruit of the 5th regiment. fact to his masWhen the serjeant paid him the enlistment money, the pauper told him he ter. 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 bired 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
this fact to his master.
First, Parties to it ought to have been stated, and cannot be inferred. I do not presume the contract. 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.-Little
dale, J., concurred. Order of sessions quashed. A pauper, who Rex v. Taunton, St. James, 9 B. &. C.831. Order of removal from Taunhad volunteered into the militia,
ton, St. James, to Milverton, quashed. Case: The pauper, at Lady-day, cannot lawfully
1811, hired himself as a servant in husbandry for a year, to Mr. Handford, hire himself, un- of Milverton ; after serving him for three months, having, at the Christmas less he discloses
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 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
the contract. 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 precerling 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
vant or master.
First, Parties to for a-year. To constitute a lawful hiring, the party must have a power to
contract to serve for the period during which he agrees to serve.-Rex v. Holsworthy shews, that if a party is under a disability, he may, by disclosing it, make a conditional contract. But if he does not disclose it, it is an absolute contract; into which he is not capable of entering, and therefore not a lawful hiring. Here there was no disclosure. Then the only question is, is there any enactment in the 48 Geo. III. c. 111, giving a local militia man a power to make an absolute contract of hiring? It cannot be intended that the legislature meant to give such a power, for they might thereby enable a party by law to commit a fraud; the master would contract on the supposition that the party, with whom he contracts, had power to bind himself for a year, the latter knowing all the time that he had not. But, on the other hand, it might properly be provided, that a contract made bonâ fide, while the party was a free man, capable of contracting, should not be avoided by reason of his subsequently becoming a militia man. The statute does not in terms enact, that an enrolled person shall be sui juris. The 15 sec. applies to contracts actually entered into at the time of the ballot or enrolment. No such power, therefore, is given by express words or by necessary implication. Coupling the 15th with the 24th sec.it appears to me doubtful whether a volunteer and a ballotted man are placed in the same situation. But assuming that they are, all the legislature says, is, that if a master contracts with a free man, the master must take his chance in case of a ballot, and shall not contract against the chance of a ballot, for such contract is made void. But there is no provision that a man shall have the same capacity to contract, as if he was not a local militia man.
No power is, therefore, given to enter into an absolute contract to hire for a year. Here the pauper entered into an absolute contract, which he had no power to do. There was no lawful hiring for a year, and no settlement was gained.
Order of sessions confirmed. Age of the ser. The contract of an infant made for his own benefit is not void, but void
able only, and therefore an infant may enter into a contract of hiring and service, with the permission of his parent, and even if such contract be with his parent, and he serve accordingly, he thereby gains a settlement. Rex v. Chillesford, 4 B 4. C. 94. (See this case, post.)
It has been held, that if a boy be bound apprentice to a person under age, the binding is sufficient for the purposes of a settlement, as the indenture is not, in such case, void, but voidable only. Rex v. St. Petrox, Dartmouth, 4 T. R. 196. By the same rule, therefore, it may be considered that a contract of hiring and service with a master who is a minor, is a valid contract,
and, if duly performed, will entitle the servant to a settlement. Master must not But the master must not be a person residing under a certificate (see 12 Anne, be a certificate
c. 18, s. 2, ante, 318), and this disability applies to a woman who marries a certificate man, and is afterwards left a widow. It has been decided that a parish certificate extends to a wife married after it is granted, and that no apprentice to such wife, after the husband's death, can gain a settlement in the certificated parish, (Rex v. Hampton, 5 T. R. 266,) the principle of which
decision is equally applicable to cases of hiring and service. Where the master
No nearness of relationship will prevent the gaining a settlement by hiring is also parent of and service. An infant, whether emancipated or not, may hire himself to
Rex v. Chertsey, 2 T. R. 37. The pauper, at the conclusion of a service by which she gained a settlement in Chertsey, went to her father's (a day labas kr) who, in consequence of his wife's death, had previously applied to her to come and live with him, to do the offices of a servant for a year in the parish of Thorpe, for which she was to have her board and lodging, and such profits as she could make by keeping fowls, and what she could earn by her own labour; and if that did not produce as much as she got in her former place, her father was to make up the difference. She lived with him more than a year in pursuance of this agreement, and made more than her former wages by her extra labour and profits, and at the end of the year her father gave her ten shillings as an additional recompence for having gone out reaping with him in the harvest month. The Court held this a good hiring and service, and that a settlement was gained in the parish of Thorpe.
So in Missenden v. Chesham, 2 Bott, 173; Fol. 142. The pauper had First, Parties gained a settlement in Chesham, and afterwards came to live with her father to the contruct. in Missenden, who promised to give her 10s. a year, and also what she might be able to gain by her extra service and labour. She served under these circumstances for more than a year. The Court held that a settlement was gained.
In the same case it was stated that the father had no settlement; and the It is not neces. sessions conceived, therefore, that as he had no settlement in the parish, he master stehen could confer none on his daughter by hiring and service. But the whole have a settleCourt agreed that a settlement may be gained by serving a man who has ment. no settlement himself, because the servant does not derive the settlement from the master, but from the service.
Rex v. Eldersley, 2 Bott, 274. A. hired himself to be a warrener in the Master's resi. parish of Eldersley, in a warren there, to joint occupiers of it, who lived in
dence not mate
rial. two parishes distant from the parish of Eldersley. He dieted and lodged for eight weeks with one of the occupiers; and for the rest and last part of the time on the warren. Per Curiam, his settlement is in Eldersley.
In Rex, v. Sandhurst, 7 B. 8. C. 557 ; 1 M. & R. Mag. Ca. 65, it was urged The hiring may that the hiring having been by an officer of a public establishment which body, and by per. was exempted from poor rates, and that as the pauper was to serve the sons not rated to officers of the establishment and the young gentlemen there, and was not hired by, or to serve a private individual, this distinguished it from the common hiring; but Bayley, J., in giving the judgment, said: It has been urged that the party is to be considered as holding an office and not as a servant. But a man who does all the menial offices of a servant and is at the command of the persons in the establishment is a servant and not an officer. We think the legislature did not mean to make any distinction between one description of hiring and another by a particular description of persons.
If the hiring is by deed, it is not essential that the master should execute it. Rex v. Chillesford, 4 B. g. C. 94; 6 D. . R. 161; 3 D. F R. Mag. Ca. 155. The pauper's father let himself as a shepherd to Mr. Taylor of Blythburgh. The father hired every year one or two pages, over whom Taylor had no control, and about nine years ago, when one of the pages was to leave the father about a week before old Midsummer, he agreed with his son, the pauper, at that time nineteen years of age, and unemancipated, to serve him for a year, from old Michaelmas to old Michaelmas, in Jarvis's place, at the same wages, 8l. a year, which time the pauper served. On the same day, and before judgment was given in Rex v. Chillesford, the following case was heard.
Rex v. Winslow, 4 B. & C. 94; 6 D. &. R. 168; 3 D. & R. Mag. Ca. 163. Elizabeth, the wife of Thomas Lane, was removed from Winslow, to Beaulieu. Order quashed. Case :
T. Lane, the husband of the pauper, when about fourteen years old, being an unemanci. then unemancipated, was hired by his father, who was a sawyer, residing acquire a settle. at Beaulieu, to assist him in his work as a sawyer. A contract was, in point ment by a bona of fact, made between them, whereby the son agreed to serve the father for fide contract of a year at the wages of 21. 10s., his board and lodging being also provided vice for a year by the father. He served this year with his father in Beaulieu, and received with his father, his wages, and, at the expiration of this contract, served his father for two the latter hash ne successive years, under new contracts, at increased wages.
settlement, not. Abbott, C. J. I am of opinion, that in each of these cases the pauper 3&4 W.& M. c. gained a settlement by hiring and service. It is conceded that if the pauper i. had been emancipated, he might have gained a settlement by hiring and service for a year with his own father afterwards. But emancipation does pot confer any capacity to contract, and the objection here is, that the son has not any capacity to contract with his father. It must be admitted that he might have contracted with a stranger without, or, at all events, with his father's permission, to serve as a yearly servant. The contract of an infant, if it is made for his benefit, is not, according to the general principles of law, absolutely void. It may be voidable at the election of the infant himself, but of no other person. In this respect, this case is very distinguishVOL. IV.