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if it has continued more than 365
as to the hiring: The Court, however, said: there is no case that proves the Fifthly, What absolute necessity that the hiring should be for exactly 365 days. It is is á hiring for a stated to be the usual way of hiring servants in that country, and such service year. is always deemed to be a year's service. And it was adjudged that this hiring and service were sufficient to gain a settlement. (a)
Rex v. Ulverstone, 7 T. R. 564 ; 2 Bott, 243; 1 Nol. P. L. 359, 385. The So although the pauper was hired by M. Hodgson of Hawkshead, to serve him from Whit- service be ended suntide, 1796, to Whitsuntide, 1797. She entered into his service on Satur- ing Whitsunday, day, May 21, 1796, and continued to serve him in Hawkshead till the Thursday before the following Whitsunday, being June 1, 1797, when her master dis- days. charged her, she being pregnant of a bastard child, of which she was delivered on July 1, following. It was contended, that as in the above case of Pex v. Neustead, a hiring from Whitsuntide till Whitsuntide, although less than 365 days, was holden a sufficient hiring for a year; so that where it appears to have been the intent of the parties that the hiring should be according to such ecclesiastical division of the year, the parties ought to be holden to the same term of service in order to gain a settlement, although it happened in this case be more than 365 days; but as the pauper was discharged for a legal cause before Whitsuntide happened again, she could not gain a settlement.—Lord Kenyon, C. J. The case is too plain for argument. The only question is, whether a service for more than 365 days, is not a service for a year? The term ecclesiastical year, is altogether new, and was never before applied to this subject. And it was held that a settlement was gained. Coombe v. Westwoodhay, 1 Str. 147; 2 Bott, 243; I Nol. P. L. 357. Hiring two days
after Michael. Michaelmas day was on Thursday, and a person was hired upon the Saturday following, to serve from the said Thursday, till Michaelmas : and it was lowing Michael held to be insufficient to gain a settlement, being not a hiring for a year.
mas, gains no
settlement. It was further observed, that there must first be a hiring, and then a service: and not vice versa, a service and then a hiring. (But service before, may connect with service after, hiring.)
Rez v. Narestock, Burr. S. C. 719; 2 Bott, 345; 1 Nol. P. L. 359. Hiring the day The pauper, at the statute fair at Ongar, on the day next after Old Michael- after Michaelmas mas day, the 11th of October, 1733, hired himself to S. Pasford of Nave- Michaelmas day stock, to serve till the Old Michaelmas day following. He entered upon the following, gains a service, and continued in it till the Old Michaelmas day following; on which day he received his wages, and quitted the service. It appeared that this hiring was according to the custom of the country.—Mansfield, C. J. There must be a hiring for a year. If the hiring be for less than a year, it will not do, be the deficiency ever so little. Two days, or one day, short of a year, are equally an objection to its being a hiring for a whole year. Hiring from a moveable feast to a moveable feast, according to the custom of the country, has been determined to be a hiring for a year. And here they have stated the custom and usage of the country, to hire servants in the manner this pauper was hired, namely, at the statute the day after Old Michaelmas. If this should be taken not to be a hiring for a year, there can be no settlement gained in this country by a servant; for all servants in this country are hired as the present pauper was hired. Therefore it seems no stretch to consider this as a hiring from Michaelmas to Michaelmas. - Aston, J. It appears that the pauper entered on the day after Michaelmas day; “ till ” is the word relied on, to prove it a hiring for less than a year. How has that word been understood ?* The pauper was in the service on the sixe, see Rexv.
, Michaelmas day, and took his wages; the service explains the hiring; here 344.
mas, till the fol
« Till" is inclu
(a) But the custom of the country Massey, post, 346; Rer v. Navestock, cannot aid an imperfect contract. See supra, 343; but in the case of Rer v. Rer v. Lowther, and Rer v. Hanwood, Massey, post, 346, Lord Ellenborough, post, 346. The authority of the above C. J., said, that a hiring by a schoolcase has been sustained on the principle, master from one Christmas breaking-up that as the hiring was from one moveable to another Christmas breaking-up, is not feast to another moveable feast, its a hiring for a year, if less than a year duration was uncertain. Rer v. Standon is comprised in the period. VOL. IV.
October uith till
Fifthly, What is in effect a hiring for a year, and a service agreeable to it.-Willes, J. is ő hiring for a The custom of the country, in such a doubtful case as this, must be called year. in aid.
Rex v. Syderstone cum Bermer, Cald. 19; 2 Bott, 346; 1 Nol. P. L. 358. A hiring on
The pauper, being settled at Syderstone, applied on Old Michaelmas day to
J. E., of Milham, to be hired by him, but they could not then agree about lowing, being October 10tli, is a wages; the pauper asking eight guineas a year, and the other offering only hiring for a year. six pounds. The next day, viz., October 11th, between two and three
o'clock in the afternoon, they were together at a public house in Milham, when J. E. asked the pauper if he would take the wages offered him the day before, which he refused ; but after some conversation the pauper hired himself to J. E. until Michaelmas following, at seven pounds'
wages; and entered his service on the evening of that same day, and staid till 10th October following, being Michaelmas, 1772. On that day his master, not having finished his harvest, asked the pauper to stay and help him with his harvest; and though the pauper thought himself at liberty to go away, yet he staid with his master until the 11th October, at noon; when, after dinner, he asked his master for his wages, who paid him seven pounds; and the pauper quitted his service, but did not ask or receive any recompence for his additional service. The Court were clearly of opinion that this gained a settlement.—Lord Mansfield, C. J., said, to be sure there must be a hiring for a year; and this is one. Though he was hired on the afternoon of the 11th, yet we shall say that he was hired at twelve o'clock at night on the 10th; for it is settled, that the law will not allow the fraction of a day. He served till the 10th, that is a year. If a man be born on the 10th, he
is of age on the 9th.— Aston and Willes, Js., concurred. A hiring from Rex v. Skiplam, 1 T. R. 490; 2 Bott, 242; 1 Nol. P. L. 358. ElizaMartinmas day
beth, the wife of W. Ware, was removed from Beadlam to Skiplam. Order tillthe Martinmas day following, is confirmed. Case : The husband of the pauper, at Old Martinmas day, 1777, a hiring for a hired himself for a year, and served that year in Skiplam : on the next day year, till, being
after Old Martinmas day, (viz. on the 23d of November, 1778), he hired himinclusive. self to one Barker, of Nawton, to serve him from thenceforth until Old Mar
tinmas day following. He entered into the service of Barker a few days after such hiring, and continued to serve him until the Old Martinmas day following, on which day, about twelve o'clock at noon, he received his fuil wages, and left his master's house in the evening.–Ashhurst, J. It is much to be lamented that there is such confusion in settlement cases; therefore, whatever the late determinations may be, they ought to be adhered to; now the last case (Rex v. Syderstone) seems to correspond with this in every point : before that, a distinction had been made, as where the hiring and service had been expressly found to be for a year, according to the custom of the country; but in the last case no such distinction was taken; so here there is no custom stated; and “ until” must be taken to be inclusive. Therefore there was a hiring and service for a year, for he entered into the service the first day of one year, and served till the first instant of the next. -Buller, J. The only question is, whether Martinmas day is to be taken inclusive or exclusive. The pauper's husband was hired the day after Martinmas day, to serve till the Martinmas day following. From the moment of the hiring he became the servant of the master, and continued in the service till Martinmas day: then does the word “ till” include the day? the former cases have decided that it does; and if it only included a part of the day, as there is no fraction of a day, the service would be complete. Both orders quashed.
What is not a Hiring for a Year. A pauper had
Rex v. Lydd, 4 D. &. R. 295; 2 D. 4. R. Mag. Ca. 20; 2 B. &. C. 754. three years at
Removal of G. Goldsmith, &c., from Lydd to Thurnham, quashed. Case: In 201. per annum as August, 1819, the pauper was hired to Mr. Fisher, in Midley, for three years, a looker. The
at 201. per annum, as looker and to spud thistles, (The duty of a looker is duty of a looker is to superintend to superintend the flocks and fences upon the lands of his employer, and he the flocks and frequently has several masters, and works for any persons who may employ fonces of his
him, according as his time allows.) The pauper went into the service of
for this purpose
been hired for
Fisher on the 26th of October, and was married on that day. He served Fifthly, What Fisher for three years. He worked for no other person but Fisher for the is a hiring for a first year and three quarters, but at the end of that time he hired himself year. as looker to a Mr. Russell. During his service with Fisher, he did other work for him not belonging to his duty as looker, such as turning mould, lambing he was hired, his
employer. When and shearing, for which he was always paid upon new and separate bargains master told him on each occasion; and upon other occasions he did day work as a labourer that he should, for Fisher, for which he was also paid by the day. At the time of the ployment for pauper's contract with Fisher, nothing was said about his being at liberty to him, but that he hire himself to, or work for other masters during the three years, but Fisher him as much as said he did not think he should have full employment for the pauper; he he could. He would employ him as far as he could. Whilst he was working for other was not to do people, his wife hoisted a signal by putting a flag out of the window, upon master, other which he considered himself bound to quit his work and attend to his duty than that belongas looker to Fisher, for which he was originally hired; and he invariably of looker, with returned to Fisher when so summoned, and never worked on any lands from out extra wages : whence the flag could not be seen during the whole of the three years. He No hiring for a was not, however, to do any work for Fisher, other than that for which he was originally hired as a looker, without receiving extra wages. His agreement with Russell was by the acre, and he bargained with him for a year at 141. During the whole of the three years, he lived on Fisher's land at Midley. Bolland and Claridge were heard in support of the order of sessions, and Berens, contra.—After which, Abbott, C. J. I am of opinion that there was not, in this case, any contract of hiring and service for one whole year. Here the master had not the control over the servant for the entire year, but only for so much of the year as the duties of looker required his attention. At other times he was at liberty to employ himself in any manner he pleased, either in working for other persons, or for his master, and when he worked for the latter he always received extra pay.—Bayley, J. In order to gain a settlement by hiring and service, there must be a contract for one whole year, and a service for the whole year. This is distinguishable from the cases cited, because here, from the very nature of the employment, it was not likely to fill up the whole time of the pauper. Scarcely ever more than a few hours each day would be required. This is very like the case of a person employed as an occasional servant for the purpose of brushing clothes. The master has no control over the servant as soon as he has performed the required service, aud that takes up but a small portion of his time.—Littledale, J (a). Rex v. Horwick is the only case cited which bears any resemblance to, or forms any authority for, the present; and even that is distinguishable from it in one important particular; for there the pauper was provided with full and fair employment by one and the same master; whereas here, the work done cannot possibly be rated as the entire service of any husbandman, and the pauper actually resorts to other employers to fill up the measure of his labour, and to augment the sum of his wages. Upon the grounds already detailed by the Court, I am also of opinion that the order of sessions must be quashed. Rule absolute for quashing the order of sessions.
In Rex v. South Killingholme, E. 11 Geo. IV. MSS. was hired by his aunt, and the contract was, that when she had no work, he might work for others for his own benefit.—Lord Tenterden said, the cases ran upon very nice distinctions. Here the parties must have contemplated that there would be some period of the year during which the aunt would have no work for the pauper, and the liberty to work for others was therefore introduced for the pauper's benefit. The aunt could not capriciously say, though I have no work, you shall not work for another. This was therefore an exceptive hiring.-- Bayley, J. said, the wages were measured by the probability of the aunt having work for the pauper. - Parke, J., said, that in Rex v. Chertsey, the pauper was to do such other work only as was consistent with her relation of servant; and that was Buller, J.'s opinion.
(a) Holroyd, J., was abscnt,
2 2 Z 2
less than a year,
Fifthly, What Dunsford v. Ridgwick, 2 Salk.535; 2 Bott, 250; 1 Nol. P. L. 356. A peris a hiring for a son was hired for half a year, and after that was hired again for another half
year. year, with the same master, and served a year in one continued and entire serA hiring for two vice, but by several hirings.-By the Court: It ought to be one entire contract half years in suc. and one entire service; the one is required by the statute as well as the cession, will not other. If a service under several contracts shall gain a settlement, one make a yearly biring,
that serves by the month, by the week, or by the day, if he continue a year, shall gain a settlement. One may bire by the day for charity ; but there is danger of being chargeable in hiring such a person by the year. For such a term as a year it is not supposed a master would hire one, unless able of body, and so a person not likely to become chargeable.
So, Horsham v. Shipley, Fol. 134 ; 2 Bott, 340; 4 Nol. P. L. 356. А person was hired from May-day to Lady-day, then from Lady-day to Mayday: and the Court were of opinion it did not gain a settlement, for they
said the hiring must be for a year. though such Rex v. Lowther, Burr. S. C. 674; 2 Bott, 238; 1 Nol. P. L. 356. birings be ac
Case: The pauper was hired to W. Thompson, from Whitsuntide to Marcording to local
tinmas ; and again was hired to him, for the succeeding half year, from Martinmas to Whitsuntide ; and in pursuance of those hirings she served for the complete year, without leaving her service ; and received two halfyears' wages. It further stated, that the usual custom of hiring servants in Cumberland, is from half-year to half-year. And it was agreed, without argument, that no settlement could be gained under such a hiring and
service. Hiring at a sta- Rex v. Hanwood, Doug. 439; Cald. 100; 1 Nol. P. L. 357. At Otley, there tute fair, if for
is a custom for servants to hire by the year at two different statute-days; one gains no settle- on the Friday before Old Martinmas, and the other on the Friday next after ment, though Old Martinmas; at which latter statute-day they always hire till Old Mar. such a hiring be customary.
tinmas day following, which by the custom is considered as hiring for a year. Old Martinmas day, in 1775, was on a Tuesday. On the Friday following, being the second statute day, the pauper hired till Old Martinmas day following, and served that time.— Willes, J. In Rex v. Neustead, the duration was uncertain, and the hiring was supported by the custom of the country: the custom here (if it could be of any weight to control the statute) is stated to be the custom of Otley, and the contract was performed in another place. Mr. J. Buller said, there is no case where a hiring upon the face of it appears to be for less than a year, in which the Court has beld that a settlement was gained; and it would be dangerous to make a new precedent of that sort.
Rex v. Standon Massey, 10 East, 576; 1 Nol. P. L. 359. Ongar statutefair is held on the day after Old Michaelmas, except when Old Michaelmas day falls upon a Saturday, and then, on the following Monday. At Ongar fair, 1806, held on a Monday, which was two days after Old Michaelmes in that year, the pauper was hired to serve W. from the fair-day till the Old Michaelmas day following, at yearly wages.---Lord Ellenborough said, no settlement could be gained under such a hiring, and that it was in po manner similar to a hiring from a moveable feast in one year, to the same moveable feast in another. He added, if we allow these constructive hirings to go on, it will soon be contended that a servant acquires a settlement who is hired by a schoolmaster from the breaking up at Christmas to the breaking up at Christmas, though less than a year should in fact be comprised in the period; and he added, that the cases had gone far enough
upon this subject. Hiring for less Rex v. Little Coggeshall, 6 M. & S. 264. The pauper, at Michaelmas, 1806, than a year, to
went as a servant in husbandry, for a month, upon liking, and if he suited ment, although a his place he was to continue during the year, and have three guineas wages. year's wages be When he had served the month, his master said that he suited bim, and if paid, is not a yearly hiring.
he liked he might continue with him : but added, that he must leave his place a fortnight before the end of the year, in order that he might not be an incumbrance to the parish. The pauper made no answer. Fourteen days before the end of the year his master told him that his time was up, and as he had behaved himself well he would pay him all his wages, which
avoid a settle.
he did; and then desired bim to go to his father, where he might hear of Fifthly, What another place. The pauper made no objection; took his wages, went away, is a hiring for a and never returned. The sessions thought it a dispensation from service for year. the fourteen days.—Lord Ellenborough. The point on which the settlement fails, is, that there was not any hiring for a year. I should be glad to know if the master could have maintained any action against the servant for not serving him the year. At the end of the month of probation, the master said he would continue him, but he must go away a fortnight before the end of the year, that he might not be an incumbrance to the parish. This, therefore, was a stipulation by way of condition, that they should part within the year.—Bayley, J. With respect to what has been said of the original contract, I would ask whether, at the end of the month, the pauper had a right to insist upon his master's continuing him the year. Order quashed.
Rer v. Astley, M. 1815. 4 Burn, 279, 23d edit.; 1 Nol. P. L. 257. Re- Hiring for fiftymoval from Corley to Astley. Order confirmed. Case: At Michaelmas,
two weeks, is not
a hiring for a 1812, the pauper was hired by Mr. Lillyman, of Astley, for fifty-one weeks, year. at two guineas and a half wages, and went into his service, and lived with him accordingly. About a fortnight before the expiration of the fifty-one weeks, the pauper was hired again by Mrs. L. for fifty-one weeks, to commence from the Michaelmas following; and on the day on which the first fifty-one weeks expired, and before the expiration of the first fifty-one weeks, she agreed with her master to serve him for the ensuing week ending at Michaelmas; for which, a few days after Michaelmas, she received 1s. wages. Three weeks before the end of the first fifty-one weeks, it had been proposed by the mistress, to the girl and her mother, that the girl should stay in her service the odd week, after the end of the first fifty-one weeks, and before the commencement of the second fifty-one weeks. The girl was unwilling, and would not say whether she would or not, but the mother was willing she should stop; but a full agreement for the week was not made until it was made by the husband on the day on which the first fifty one weeks expired. At the time the pauper agreed with her master to stay the odd week, the other servant was gone, and her mistress was ill and near her confinement. The pauper staid in the service the odd week, and the second fifty-one weeks. It was contended that the continuance of the pauper a week in the service after the expiration of the fifty-one weeks, completed her year's service, and she thereby gained a settlement.—Lord Ellenborough, Č. J. The question is, not whether one week and fifty-one weeks make a year, but whether fifty-two weeks make a year. Fifty-two weeks do not make a year, and consequently such a service does not give a settlement.-Bayley, J. There are but 364 days in fifty-two weeks, and 365 days, 6 hours, and 49 minutes in a year. Unless, therefore, the whole of the latter time is included in the contract, no settlement can be obtained.—Lord Ellenborough, C. J. The question is purely arithmetical, and the sessions at Warwick will in future know the difference between a contract for fifty-two weeks, and a contract for a year. Order of sessions quashed.
Rex v. Ackley, 3 T. R. 250; 2 Bott, 242; 1 Nol. P. L. 357. On Hiring three days Saturday, 13th October, 1787, being three days after Old Michaelmas day, till the Michael. which was on a Wednesday, the pauper hired himself to J. Clarke, to serve mas following, him until the next Michaelmas. He accordingly went into such service, will not gain a and continued therein till Saturday the 11th October, 1788, being the day although there be after Old Michaelmas day, which was on a Friday, (it being leap-year,) and a service for 365 was paid his wages and went away. As this was a service for 365 days, days (being leap.
) the sessions thought it gained a settlement in Ackley, and confirmed the order, by which he and his wife were removed from Bicester Market End to Ackley. But the Court were clearly of opinion that here was no hiring for a year; this was a hiring for two days short of a year; and though the Court has been extremely indulgent with respect to services, they have been always strict with regard to hirings. Order of sessions reversed. Rex v. Worminghall
, 6 M. 8. $. 350. Case: The pauper was hired in in leap-year the 1807, at Thame fair, held on the Tuesday next aster Old Michaelmas day, for three hundred which in this year happened on the 13th October, for eight guineas, five and sixty-six shillings and three-pence. He served till the 11th October, 1808; on which days.