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First, Parties able from a contract of hiring and service by a person who was a soldier at to the contract. 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 bona 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.
to the contract. 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. Ricking- A pauper, hired hall Inferior, 7 East, 373 ; 1 Nol. P. L. 341, 350. The pauper was a
out by parish of
ficers, cannot by Greenwich pensioner, and came disabled to Redgrave. The parish officers such hiring gain agreed with R. Crowe, of Rickinghall Inferior, that the pauper should live a settlement. 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, Compulsory hirof the age of fourteen, was in the house of industry of Stoumarket, the ing, and service guardians whereof were empowed by their incorporating act to apprentice settlement. 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 nnder 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.
overseers of his
assist him with clothes : Held that he acted suo
First, Parties Rex v. Dunton, 15 East, 352; 1 Nol. P. L. 351. The pauper, previously to the contract, to Mich. 1809, went to one Eastwood, in East Horndon, and worked for him A poor boy hired
for some time for 6d. a-day, and was afterwards taken into Eastwood's house, himself; the 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 parish afterwards
seer 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 jure, and gained a settlement. 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 Il. 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 Rer v, Burbach, post, 374.
amounts to a
Secondly, What amounts to a Contract. (a) “ Shall be lawfully hired into any parish or town for one year.” (See Secondly, tl'hat 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 panper hiring, made on was offered, by his father, to M. C., a farmer, on a Sunday, as waggoner's a Sunday by a boy, and was hired by him on that day for a year, and served him for farmer, is lawful. a year.-After argument, Bayley, J., having observed on the policy of 29 Car. IJ. 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 to 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.
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 contract. 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. A boy living
several years T. Full, at the age of eleven or twelve, went to live with his uncle, who
with his uncle, was a tailor, in South Mims, and worked for him, and learned his business. and working at At the expiration of two years, his uncle proposed that he should become his trade for his his apprentice, but they had some difference about it, and the pauper re- &c., but without fused to be bound. However, he continued to live with him, working in, any contract, does
not thereby gain and learning his business, till about the age of seventeen, and was provided
a settlement. with board, lodging, and necessaries. This case came on immediately after Rer 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. If it appear that It appeared, on the evidence of the pauper, that R. Pyke, Esq., took the contract, no pauper (being then about eight years of age) into his family, from charity, hiring can be and gave him meat, drink, lodging, and clothes, while he continued with presumed; but him, which was about six years, of which the last four years were in appears, it will Weyhill. That neither at nor before the time of Pyke's taking the pauper have been regainto his family, nor at any time after, was there any contract hetween the lar, till the conparties, in relation to the pauper's service of Pyke, or his continuance with trary is proved. him, or to any wages or other gratuity to be paid to him; that, during his
where a contract
(a) See division of the subject, ante, 319.
amounts to a
ment with the
Secondly, What continuance with P., he was employed in running of errands, and doing
whatsoever P. or his servants thought fit to bid him: 10 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
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 sived 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. An assistant to a Rex v. St. Matthew's, Ipswich, 3 T. R. 449; 1 Nol. P. L. 347. E. Stollery waiter at an inn, and wife were removed from St. Nicholas to St. Matthew. Order confirmed. without agree
Case: About five years ago, the waiter belonging to S. Ribbands, who kept innkeeper, does an inn in St. Maithew'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 ment by such service. 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
pauper continued there till Christmas following, when Rib. bands 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
away, and the