the contract.

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 servant or master.

Master must not be a certificate man.

Where the master

is also parent of the servant.

The contract of an infant made for his own benefit is not void, but voidable 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&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.

But the master must not be a person residing under a certificate (see 12 Anne, 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.

No nearness of relationship will prevent the gaining a settlement by hiring and service. An infant, whether emancipated or not, may hire himself to

his father.

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 laboer) 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 gained a settlement in Chesham, and afterwards came to live with her father 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.

First, Parties

to the contract.

It is not necessay that the have a settle

master should

ment.

dence not mate

rial.

In the same case it was stated that the father had no settlement; and the sessions conceived, therefore, that as he had no settlement in the parish, he could confer none on his daughter by hiring and service. But the whole Court agreed that a settlement may be gained by serving a man who has 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 resiparish of Eldersley, in a warren there, to joint occupiers of it, who lived in 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. & C. 557; 1 M. & R. Mag. Ca. 65, it was urged that the hiring having been by an officer of a public establishment which was exempted from poor rates, and that as the pauper was to serve the 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. & C. 94; 6 D. & R. 161; 3 D. & 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, 81. 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 then unemancipated, was hired by his father, who was a sawyer, residing at Beaulieu, to assist him in his work as a sawyer. A contract was, in point of fact, made between them, whereby the son agreed to serve the father for a year at the wages of 21. 10s., his board and lodging being also provided by the father. He served this year with his father in Beaulieu, and received his wages, and, at the expiration of this contract, served his father for two successive years, under new contracts, at increased wages.

Abbott, C. J. I am of opinion, that in each of these cases the pauper gained a settlement by hiring and service. It is conceded that if the pauper had been emancipated, he might have gained a settlement by hiring and service for a year with his own father afterwards. But emancipation does not 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.

Y

The hiring may be by a public body, and by per. sons not rated to the poor.

An unemanciacquire a settle. ment by a bonâ fide contract of hiring and service for a year with his father, the latter has no

pated son may

in a parish where

settlement, notwithstanding the

3

1.

& 4 W. & M. C.

First, Parties to the contract.

able from a contract of hiring and service by a person who was a soldier at the time of hiring. There the consent of the officer was completely nugatory, because the officer could not consent to the contract. The soldier was not then sui juris, but was under the dominion of the crown, and the crown had a right to avoid the contract at any time; and, therefore, in that case the Court very properly held that the contract was not valid in law. But in this case, the contract is not void, but voidable only. If, therefore, an infant may, with the permission of his father, enter into a contract with a stranger, why may he not do so with his own father? I know of no such incapacity, if the son is capable of serving as a servant, and his father thinks his services worth remuneration. There being nothing, therefore, which declares such a contract with the father to be void, can we say that there is any thing which shall prevent the son from gaining a settlement by such a hiring and service? It is said that if a settlement can be so gained, it may enable a father to confer a settlement on his son in a parish in which the son could not gain a derivative settlement from his father. But this is not the only case in which a person may derive a settlement from another who has himself no settlement in the parish. Then it is put strongly, and with so much force as to induce me to pause in the conclusion to which my mind was originally prepared to come, that if we decide this to be a settlement, it may lead to much confusion, and to the raising of many questions of a similar nature for the determination of the quarter sessions. I cannot say that such may not be the case; but, however, when such questions shall be raised, it will be the duty of the quarter sessions to look narrowly into the facts of the case, and see whether there really was any contract of hiring and service. One mode of ascertaining that, will be to inquire whether the father had any occupation for a hired servant, and whether he had any thing for him to do in that capacity; and if the father had no employment for a hired servant, the sessions may reasonably conclude that there was no contract for hiring and service. In the first of the cases at bar, it appears that the son came into the place which had been filled by another person, who had been hired at yearly wages. That is abundant evidence that the father had really occasion for a servant of that description. In the other case the father was a sawyer, and he had almost always occasion for two persons to assist him in his business. Indeed the nature of the trade itself, which requires the concurrence of two persons at least, to carry it on with skill, shews that the father had occasion for a servant, and it is stated as a fact, that for several successive years the pauper had served him at increased wages. For these reasons it appears to me that a settlement was gained by the paupers in both cases.

Bayley, J. It appears to me that an unemancipated son is competent to enter into a contract of this description with the father, and that all the legal consequences resulting from such a contract follow from the existence of that contract. It is clear that an infant may bind himself to a stranger. It may be in general supposed that such a contract is entered into with the consent and concurrence of the father, but there may be instances in which the father is not in any respect consenting, and even where a son, against the father's consent, enters into such an engagement, yet still he will gain a settlement, and he may insist upon having his wages paid him, and he may be liable to all the statuteable stipulations and regulations respecting the relation of master and servant. If then an infant may bind himself to a third person by a contract of hiring and service, the question is, whether the relation of parent and child destroys the capacity to contract. It is clear that it does not do so in the case of emancipated, natural, or step-children, (Rex v. St. Peter's, Dorset, Burr. S. C. 513;) and yet if a step-child is capable of contracting with his step-father, the same mischiefs result as if his own father consented. The same observation applies to emancipated children. If the father has no occasion for a servant, and the employment of the son in that capacity is merely a pretence, the sessions will decide accordingly; but if there is a bonâ fide contract, why may not that contract produce a new relationship and create new rights and obligations between the parties? I see no reason why the father and the son should not be at liberty to enter

into a contract of that description. It gives to the father a new right of First, Parties control, and the child a right to wages which is beneficial to him.

Littledale, J. My brother Holroyd, who has left the Court, desires me to say that he concurs in the opinion delivered by my Lord Chief Justice. By law a parent has a right to exact service from his son or daughter, and this is the foundation of the action for seduction, and no proof of actual service is necessary. If then there be a species of service due from the child to the parent, why may not the obligation to serve be made stronger, by allowing the parent to hire the child for a certain time at stipulated wages. It is admitted that an emancipated child may hire himself to his father; but it is said this may not be done where the child is unemancipated, because the child being already under the control of the parent, and owing him service by the law of nature, he cannot enter into such a contract. But there seems to me to be no reason why a child may not contract with his parent for the performance of other services than those which are due in consequence of the relation of parent and child. Such a contract is highly beneficial to the child, because it superadds the salutary restraint of the master to that of parent, and renders him amenable to the statute of regulations applicable to master and servant. If then, in point of law, such a contract be valid and binding, there seems to be no reason why a settlement should not be gained by a service under it. Some inconveniences may arise from the decision in this case, but that is no reason why a contrary decision should be pronounced so as to deprive these paupers of a settlement, where there is nothing either at the common law or by the statute of William, which makes such a contract void.

The hiring must be the contract of the pauper himself. Rex v. Rickinghall Inferior, 7 East, 373; 1 Nol. P. L. 341, 350. The pauper was a Greenwich pensioner, and came disabled to Redgrave. The parish officers agreed with R. Crowe, of Rickinghall Inferior, that the pauper should live with him and do whatever he should set him about, and that they should pay 2s. 6d. a-week with the pauper. The Court (Lord Ellenborough, C. J., absent) were clearly of opinion that no settlement was gained. The relation of master and servant never existed between the pauper and Crowe; and the parish officers had no authority to hire out the pauper into the other parish. Rex v. Stowmarket, 9 East, 211; 1 Nol. P. L. 304, 312. The pauper, of the age of fourteen, was in the house of industry of Stowmarket, the guardians whereof were empowed by their incorporating act to apprentice poor children for seven years. It did not appear that they had ever exercised this power, the practice being to send the children to their respective parishes; the pauper was sent to Mr. Reynolds, of Stowmarket, to whom he had been allotted by the officers of that parish: this person told the pauper he had procured him a service with one Fox, of Coddenham. The pauper did not object, conceiving he had no discretion on the subject, and he went to F., who received him, and told him he would give him clothes, and that he was to stay with him a year. The pauper did stay the year, receiving clothes, maintenance, and a little pocket-money.-Lord Ellenborough, C. J. All the parties seem to have acted under the idea that the boy was a parish slave, who might be handed over from one to another, and disposed of as they pleased. If we were to hold this sufficient to give a settlement we should establish a new head of settlement by allotment. The adoption of a contract must be the act of a free agent; and it appears from the circumstances of the pauper's making no objection or agreement, that he conceived he had no discretion on the subject. The pauper made no agreement with any one respecting wages, or the nature or duration of his service: nor was he consulted on the subject by either of the persons to whom he had been allotted; but considered himself obliged to accept those services, as being under the control of others. Then can a person who is considered as a slave, and conceives himself to be such, be considered as having adopted the acts of his master? It is against common sense so to construe his involuntary acquiescence. In those cases where the pauper's misapprehension of the contract has been held not to vary the legal effect, the pauper meant to exercise a contracting power.

to the contract.

A pauper, hired out by parish officers, cannot by

such hiring gain a settlement.

Compulsory hiring, and service settlement.

under it, gains no

First, Parties to the contract.

A poor boy hired himself; the overseers of his parish afterwards assist him with clothes: Held that he acted suo jure, and gained a settlement.

Rex v. Dunton, 15 East, 352; 1 Nol. P. L. 351. The pauper, previously to Mich. 1809, went to one Eastwood, in East Horndon, and worked for him for some time for 6d. a-day, and was afterwards taken into Eastwood's house, where he lived two years in his employment. On leaving Eastwood's service, (by which no settlement was gained, as the pauper was sent into it by the overseer of Dunton without any act of his own), and in his way to Dunton, he was met by a labourer, who said to him, "Do you want a service? you would suit Smith" Smith being in the field at the time, the pauper applied to him, when Smith said to him, "Are you willing to go with me, and bind hay or thatch, or do whatever else you are bidden?" The pauper said he was willing, and Smith took him home to his house in Ingrave. This happened a little before Mich. 1809, and the pauper was then about 16 years of age: nothing was said about wages, nor was any other agreement made between them. A day or two afterwards Smith said, "I see you are in a bad state about clothes: if you cannot get clothes I cannot keep you." The pauper replied, "Mr. Maunder, the overseer of Dunton, will find me in clothes." On the next day the pauper and Smith went to Maunder, when Maunder undertook to provide clothes, and asked Smith, "What he would give him a-week?" Smith engaged to pay one shilling a-week to Maunder for the parish on account of clothes found. The overseer then gave an order for the clothes that the pauper wanted; Maunder, in the presence of Smith, asked the pauper if he went willingly into Smith's service; the pauper replied that he did. Smith, during the service, occasionally gave the pauper small sums. About four months after the pauper had been in the service of Smith, the latter, unaccompanied by the pauper, and without his knowledge, went to the overseer, and told him that he could not keep the pauper any longer, if he was to pay the one shilling a-week. The overseer released Smith from the payment, and the pauper staid the year out in Smith's service. At Michaelmas, 1810, Smith said to Maunder that he would have the pauper no longer without fresh clothes, to which Maunder said, that he must wait till the town meeting, which would take place in a fortnight. The overseer then asked the pauper if he was willing to live with Smith another year he said that he was willing, as he used him very well. The overseer asked Smith to make him some allowance, Smith promised to give him a pair of shoes, and do the best he could for him. The pauper served the second year with Smith, who gave him a pair of shoes, and laid out 17.8s. 6d. in the purchase of clothes for him. In the support of the orders it was contended that the pauper was employed out of charity, and that the contract, if any, was between Smith and Maunder. (a)—Grose, J. The question is, whether the contract was made by the master with the boy, or with the overseer? Now, the boy offered and declared himself willing to serve the master, and the master agreed to take the boy before any intervention of the parish officer: and though facts are afterwards stated, to shew that reference was made to the officer, yet that was only to enable the boy to make the contract, by getting clothes from the overseer, without which the master refused to keep him.-Le Blanc, J. Here there was an original agreement for hiring and service between the boy and his master, before the overseer knew any thing of the matter: how, then, can it be said to be a contract made between the master and the overseer for the letting out of the boy, without the real assent of the latter? The law, indeed, says, that an overseer cannot contract with another for the services of a pauper without his consent: but there is no law which says, that an overseer may not furnish a pauper with clothes, to enable him to make a contract of hiring with another.-Bayley, J. The boy acted throughout suo jure: he chose his own master, and fixed his own terms, and therefore I see no objection to his gaining a settlement under the contract of hiring made by him. Order quashed.

We have seen that a hiring and service under a toll collector, or renter of tolls, or occupier of a toll-house or weighing machine, will not create a settlement, ante, 318.

(a) What will amount to an adoption by the son, of a contract made by the father. See Rex v. Burbach, post, 374.