Secondly, What amounts to a Contract. (a) "Shall be lawfully hired into any parish or town for one year." (See Secondly, What 3 and 4 W. & M. c. 11, s. 7, ante, 318.) Although the words of the statute are, "hired into any parish or town," it is sufficient if the contract of hiring be made in an extra-parochial place. Rex v. St. Peter in Oxford, Fol. 193; 1 Nol. P. L. 343. The contract must be lawful; and obligatory on the master to employ, and on the servant to serve; if either is not bound, the contract is imperfect. Rex v. Whitnash, 7 B. & C. 596; 1.M. & R. Mag. Ca. 177. The pauper was offered, by his father, to M. C., a farmer, on a Sunday, as waggoner's a boy, and was hired by him on that day for a year, and served him for a year. After argument, Bayley, J., having observed on the policy of 29 Car. II. c. 7, s. 1, said, I am of opinion that the act of hiring a servant by a master, or of contracting for a service by a servant labourer, on a Sunday, is not an offence within the letter or spirit of this act of parliament, and consequently that the pauper, having served his due time, under a legal hiring, has acquired a settlement. Surely it would be absurd say that such an act, which can be performed only once in the course of a year, is a part of the ordinary calling of either the master or the servant. -Holroyd, J., said, if a farmer sowed his corn, or the servant ploughed his land on the Sunday, these would be parts of their ordinary calling. But I think the making of a contract with a person who is to assist another in his ordinary calling, does not come within the statute, so as to subject the parties to a penalty, or to avoid the contract.-Littledale, J., gave judgment to the same effect. to amounts to a contract. A contract of hiring, made on Sunday by a farmer, is lawful. contract. Gregory Stoke v. Pitminster, 2 Bott, 183; 1 Nol. P. L. 343, 348. The There must be a pauper, who was a young girl, was sent to by a relation, who told her that if she would live with her she should have her meat, drink, washing, and lodging. The pauper accepted the terms, and went and lived with her four years as a servant. It was insisted that this amounted to a general retainer for a year, and that the actual entry into the service, after being sent to, and terms offered, was such an assent as amounted to a contract. But the Court held that there must be an actual contract, where the servant is under no obligation to stay, and the contract must be mutual to bind the parties, and that this was no agreement, but an encouragement to the pauper that if she would live with the relation she would maintain her. See, in Rex v. Lyth, Lord Kenyon's remarks on this case. Rex v. St. Mary Guildford, 2 Bott, 187; Cald. 521; 1 Nol. P. L. 349. T. Full, at the age of eleven or twelve, went to live with his uncle, who was a tailor, in South Mims, and worked for him, and learned his business. At the expiration of two years, his uncle proposed that he should become his apprentice, but they had some difference about it, and the pauper refused to be bound. However, he continued to live with him, working in, and learning his business, till about the age of seventeen, and was provided with board, lodging, and necessaries. This case came on immediately after Rex v. Thames Ditton, 2 Bott, 186; and the counsel said, as the Court had declared in that case that a hiring was necessary, it was impossible for him to support this settlement. The Court said a hiring was certainly necessary, and that this was clearly no settlement. Rex v. Weyhill, Burr. S. C. 491; 2 Bott, 185; 1 Nol. P. L. 345, 346. It appeared, on the evidence of the pauper, that R. Pyke, Esq., took the pauper (being then about eight years of age) into his family, from charity, and gave him meat, drink, lodging, and clothes, while he continued with him, which was about six years, of which the last four years were in Weyhill. That neither at nor before the time of Pyke's taking the pauper into his family, nor at any time after, was there any contract between the parties, in relation to the pauper's service of Pyke, or his continuance with him, or to any wages or other gratuity to be paid to him; that, during his (a) See division of the subject, ante, 319. A boy living several years board, clothes, not thereby gain a settlement. there was no If it appear that contract, no hiring can be presumed; but appears, it will have been regular, till the contrary is proved. where a contract be presumed to amounts to a contract. Secondly, What continuance with P., he was employed in running of errands, and doing whatsoever P. or his servants thought fit to bid him: no wages were ever paid or given to him: in the pauper's apprehension, he was, during all the time, at liberty to quit P., or P. to turn him off, as either party should think fit. The sessions were of opinion that, at such a distance of time, a hiring for a year ought to be presumed. The Court, however, said, it is clear here was no hiring at all; no contract; but he was taken, out of charity, a child eight years of age, to run on errands and do whatever he was bid, and left Mr. Pyke when he came of fourteen years of age, and was capable of doing more service. And it is expressly stated that there was no contract. Indeed where there is a hiring stated, the Court will presume it to have been a regular one, unless the contrary appears; and that was the case of Rex v. Wincaunton, (post 338); a general hiring was there stated; but here was no hiring at all. An assistant to a without agree. ment with the innkeeper, does ment by such service. Rex v. Rickinghall Inferior, 7 East, 373; 1 Nol. P. L. 350. See this case, ante, 329, on another point. The facts as to the contract appeared to be that the pauper, after the parish officers of Redgrave had refused to continue the allowance, promised by them to the person with whom he was placed, was by that person sent home to Redgrave. He then returned, and lived with the same person without any new agreement; he frequently absented himself, sometimes with, sometimes without leave; he sometimes received 6d. for jobs done on Sundays, but on applying for relief, to Redgrave, they gave it to him. And the Court said here was no settlement gained, for after the parish withdrew their allowance, the pauper was permitted to live at Rickinghall out of charity, without any contract as between master and servant. Rex v. St. Matthew's, Ipswich, 3 T. R. 449; 1Nol P. L. 347. E. Stollery waiter at an inn, and wife were removed from St. Nicholas to St. Matthew. Order confirmed. Case: About five years ago, the waiter belonging to S. Ribbands, who kept an inn in St. Matthew's, being ill, sent for the pauper to assist him at the not gain a settle- inn, where he staid as helper to the waiter about six months, and then went away. The waiter being again taken ill, sent to the pauper to help him, which he did; and he continued in the inn as boot-catcher for nineteen months, during which time he lodged and boarded there, and was to be satisfied by the gentlemen who came to the house. Ribbands knew of his being there the night after he came, but nothing passed between him and the pauper at the time. The waiter who sent for the pauper continued in the service of Ribbands till about July in the next year, when he went away, and the pauper continued there till Christmas following, when Ribbands and the pauper having some dispute, Ribbands told him to go away, upon which he asked for something for the time he had been there: Ribbands replied, he should not give him any thing, as he had made no agreement with him; but on being pressed again, Ribbands gave him two guineas, and the pauper left the house. The pauper considered himself not as a servant to Ribbands, but as assistant to the waiter, and thought himself at liberty to go away when he pleased; he saw Ribbands sometimes, who, if a guest wanted his boots, told the pauper to get them, and at other times sent him on errands.-Lord Kenyon, C. J. There never was a case like the present, in which a hiring was presumed by retrospect. To some of the positions which have been laid down at the bar I perfectly accede; as that there is no necessity for an hiring by the master himself: that if there be an hiring, it shall be presumed an hiring for a year, unless something appear to shew that the contrary was intended; and that wages are not necessary to confer a settlement on the servant. But the foundation of the argument here is, that the pauper was the servant of Ribbands: now that is expressly negatived by the facts of the case. And here the question arises, upon the determination of which this case must turn-in what situation the pauper was at that time? The case states, that he came there as helper to the waiter; and there is nothing in the case from whence we can infer that he was the servant of Ribbands. Therefore, down to the time when the waiter went away, it is impossible to say that there was any agreement between Ribbands and the pauper. It is true that we cannot refer the last amounts to a contract. six months of the pauper's service to any thing but a contract with Rib- Secondly, What bands; but that is not sufficient to give a settlement. If, indeed, the pauper had been before in Ribbands' service, and had then lived under a yearly hiring, making in the whole a year's service, that would have gained him a settlement. But here was no contract with Ribbands, either express or implied, until the last six months. Rex v. Weyhill, ante, p. 331, is not unlike this: there, indeed, the pauper was taken out of charity; but in that, as in the present case, the pauper was taken in such a situation as excludes an hiring by the master. In cases where the nature of the service implies an hiring, the Court will raise such implication; but the nature of the service here implies the reverse. Orders quashed. Rex v. Stokesley, 6 T. R. 757; 1 Ñol. P. L, 347. An order removing John Pickering and family from Ovingham to Stokesley, was confirmed by the sessions, subject to a case, which stated that the pauper was born in Corbridge, a bastard, and was taken by his mother to Stamfordham, and was kept by her there till she died, at which time he was about six years old; he then went to live with her brother, a small farmer, at Sedgefield, as a relation, and not under any hiring, being then about seven years of age, who set him to driving his plough soon after he went, and he continued working at the farm about eight years, but received no wages or other reward except meat and clothes, and he and his said uncle wrought all the work of the farm during the last three or four years of that period; the pauper having some difference with his uncle a little before May-day, went to Darlington hiring, and there hired himself to Mr. Lax, to be a servant in husbandry for one year, and served the same; shortly before the end of this service, he received a letter from his uncle, requesting his return to him, and saying that if he would come and live with him, as before, he could surely make it as good or better for him than a common service. During the year he was with Mr. Lax, his uncle had no regular hired servant, but employed a day-labourer to do such work for him as he did not like to do himself, and which the pauper used regularly, year after year, as he grew in strength, to do for him. Agreeable to his uncle's request, he returned, and lived with him about three years, and then went with his uncle to Stokesley, and lived with him there about four years and a half, during all which time he performed the greatest part of the work of the farm, as his uncle at that time kept no other servant, and was an elderly infirm man. When the pauper returned to his uncle he made no agreement with him, either for what time or for what consideration he should serve him, but his uncle often promised him, if he would stay with him for his life, he would leave him his stock, crop, and farm, as his own; his uncle's son having got a good place, and being well provided for; his uncle of course found him meat and clothes, and used to give him a few shillings when he went from home, but nothing more. He left his uncle about Martinmas, and believed himself at liberty to leave him at any time: when they parted they had no reckoning, and did not part friends.— Lord Kenyon, C. J. The argument addressed to us, viz, that, as in Rex v. Lyth, (post, 334,) if there be a service in fact, of such a nature as that usually performed by hired servants, it is presumptive evidence whereon to found a constructive hiring; that this was such a service; that the pauper was solicited to go; that he was independent when he went the second time) might have had a good effect if addressed to the quarter sessions, but it cannot have any weight here, because the facts stated in the special case negative any hiring: indeed that argument applies as well to the first as to the second service, and the justices have expressly said that there was no hiring during the first service: they also state that before the pauper returned to his uncle, the latter proposed to him, to come and live with him as before, that is, in the same relation. This excludes the idea of any hiring for a year. I do not wish to break in upon those cases where it has been determined that a general hiring is a hiring for a year, or that a hiring under certain circumstances may be presumed; and if the justices in this case had found that there was a yearly hiring, it would have concluded the case; but here they have expressly found that the first service was not If a person go to live with a relation, "as such, and not under any hiring," and live with him as before; this is no hiring. afterwards go to Secondly, What under any hiring, and that the second was as before, and we cannot contradict these facts, and introduce our own conjectures on the subject, in opposition to this finding. Order of sessions quashed. amounts to a contract. Thirdly, Where a contract may be implied. The ostler's case. had lived with for two years, and had been seen in menial Thirdly, Where a Contract may be implied. (a) It is not necessary that it should appear affirmatively that a contract was entered into. There are cases in which, although it cannot be proved that a contract was made between the parties, the Court will infer there was such a contract, if its existence is not negatived by the evidence. Rex v. Holy Trinity, in Wareham, Cald. 141; 2 Bott, 481; 1 Nol. P. L. 345. Order of removal from Poole to Wareham, confirmed. Case: The another as ostler pauper's husband was abroad, and had been beyond sea for two years past, if alive. The case stated, that to her knowledge he lived in the capacity of an ostler with Mrs. Lee, in W., some years since deceased, for about two years, where she had seen him brew: but whether there was any thing yearly hiring was relating to such service was not proved, but that she had heard her husband say he was settled at Wareham.-By Lord Mansfield, C. J. The sessions have drawn their conclusion, that he was hired; and I think they have done right.-Buller, J. Though the evidence is slight, there is nothing to contradict it.—Willes and Ashhurst, Js., concurred. service there, a presumed. Husbandman's case. If it be proved seen and known to be in the service of another, as servant in husbandry for a year, a yearly hiring will be presumed. Rex v. Lyth, 5 T. R. 327; 2 Bott, 355; 1 Nol. P. L. 345, 348, 362. T. Carling was removed from Whitby to Lyth, and the order was confirmed that a person was by the sessions. Case: The case stated that the respondents proved that the pauper was the illegitimate son of W. and M. Carling, and born in Lyth. The appellants, in order to shew a derivative settlement in the pauper from his father in a third parish, proved that W. Carling, before his marriage, was, a few days after Martinmas, 1731, seen and known to be in the service of one Campion, in Barnby, as a servant in husbandry; and was, from time to time, seen and known to act in that capacity, with Campion, for some time, upwards of a year. The appellants offered to prove that Campion, who was then long since dead, had declared in his lifetime, that W. Carling had been hired with him for a year: but the sessions were of opinion that such evidence was not admissible. Evidence of declarations to the same effect by W. Carling, who is also dead, touching such hiring, was also refused. Whereupon the sessions, being of opinion that there was no evidence of a hiring, confirmed the order, subject to the opinion of the Court, upon the propriety of rejecting the evidence offered, of the declarations of Campion and W. Carling; and also whether, after rejecting such declarations, they had done right in refusing to infer the hiring from the fact of service proved. The case being called on, Lord Kenyon, C. J., said, the case was drawn up in too loose a manner for the Court to give any solemn judgment upon it: for, in some parts of it, evidence was stated instead of facts; and the Court were left to draw inferences which the magistrates below ought to have done. But that if the sessions wished to know whether, from the evidence stated relative to the hiring of W. Carling, they were at liberty to draw the conclusion of his having been hired for a year; in fact, the Court had no hesitation in thinking that they might legally draw such an inference. He, therefore, thought this advice of the Court might be given to the magistrates without the necessity of entering any regular judgment upon this case as it now stood, or putting the parties to the expence of stating the case again. The case of Rex v. Pitminster, was cited: but Lord Kenyon, C. J., said, in Rex v. Pitminster, it appeared that the pauper was taken out of charity; and, therefore, the presumption of an hiring was taken away. But this is the case of a servant in husbandry, whose service for a year affords very strong presumptive evidence of an hiring for a year. But, however strong that presumption be, as only the evidence of the hiring is stated, and not the fact itself, we cannot decide upon the case: though the sessions must be directed to draw from this evidence the conclusion, that W. Carling was hired for a year. Case sent back. (a) See division of the subject, ante, 319. Rex v. Hales, 5 T. R. 168; 2 Bott, 357; 1 Nol. P. L. 345, 364. Martha Mitchell was removed from Hales to Wrentham. Order quashed. Case: The pauper, a fortnight after old Michaelmas, 1792, heard from Miss L. Garnham that her father wanted a servant; and the pauper agreed with her to go to him a month on liking; she went accordingly; and in the spring following Miss Garnham told the pauper, that if she behaved well, and did her work properly, she should have 47. for a year. The pauper continued in his service without any other agreement until the Christmas following, when she went away; but a fortnight after Michaelmas, 1793, she received 41. for a year's wages then due; and for the remainder of the service from that time she received 18d. a-week, being the proportion of wages then due at the rate of 41. per ann.-Lord Kenyon, C. J. At present the case is so imperfectly stated, that we cannot give any judgment upon it. A retrospective hiring certainly is not sufficient to confer a settlement; but as the pauper continued in the same service after the expiration of the first year, there was abundant ground for the justices to have presumed a hiring for a year from that time. However, as the fact is not stated one way or the other, the case must be sent back, when most probably the justices, after hearing the intimation of this Court, will find the fact of a hiring for a year, which will put an end to the case. Case sent back. to Rex v. Houghton-le-Spring, 2 B. & A. 375. William Cowell being a single man at the time, duly executed, together with sixty-one other persons, a deed, which purported to be an indenture, whereby it was witnessed, that they, whose names or marks were thereunder written and seals affixed, in consideration of a shilling a piece then received, and of certain wages be paid to them, had hired and bound themselves to T. Croudace and S. Watkin, and their heirs, to be their servants, &c., from 18th October, 1805, to 18th October, 1806. This deed was executed by W. Cowell, but was not signed by either of the masters, or any one on their behalf. Cowell duly served under the deed. The sessions thought, as this instrument was not signed by, or on behalf of Croudace and Watkin, or either of them, no settlement was gained. The case having been argued, Bayley, J., said, the only question is, whether the execution of the indenture by the servant only, is sufficient to constitute a valid contract of hiring. Now in order to do that, there must be an obligation both on the part of the servant and of the master: here it is admitted, that the execution by the servant bound him to serve for a year; and the objection is, that the master was not equally bound to keep him. But if the master, knowing the terms by which the servant is bound, accept the service, then I apprehend that the agreement must be considered binding on him, although he has not executed the deed. For it is laid down in Co. Litt. (230 b. note (1)), that a party who takes the benefit of a deed, is bound by it, although he has not executed it. But the sessions have not found the fact that the master had this knowledge; and although it is probable that they would have found it, still, having stopped the case in limine, it must now go back to have the case determined. Their proper course would have been to have received the deed in evidence, and then to have permitted the party to have proved such facts, from which the knowledge of its contents by the master, and his acceptance of the service on those terms, might be inferred.-Holroyd, J., concurred.-(Abbott, C. J., was sitting at Nisi Prius). Rex v. Pendleton, 15 East, 449; 1 Nol. P. L. 346. In this case the pauper was, in 1782, engaged as a servant to Messrs. Douglas & Co., of Pendleton, by" Articles of agreement made this 24th of June, 1782, between T. and W. Douglas, of Pendleton, on the one part, and J. Jebson, cottonworker, on the other part, and J. Longden (the pauper), of the other part, witnesseth that J. Jebson hereby covenants and agrees duly and faithfully, and J. Longden hereby agrees duly and faithfully, to serve T. and W. Douglas in the capacity of cotton-workers, during the term of three years, night or day; and T. and W. Douglas agree to pay unto J. Jebson 5s. 6d. per week for the first year, and to J. Longden 6s. per week for the first year, 78. per week for the second year, 9s. per week for the third year, in consideration of his faithful services; and whatever time J. Longden or J. Jebson |