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Fifthly, What day he received his full wages, and quitted the service. 1808 was leap-year. is a hiring for a Lord Ellenborough. In those years which consist of 366 days, a hiring year. and service for a year must be for that same number of days.- Bayley, J.
One day was wanting to complete the year: for in leap-year the statute (24 Geo. II. c. 23) enacts that the year shall consist of 366 days.—Holroyd, J. The statute (21 Hen. III.) for regulating the bissextile year, ordains that in leap-year the intercalary day with the day preceding it shall be accounted as one day.
Rex v. Roxby. (See case, post.) The pauper served only 365 days in leap-year; and the Court said he had contracted to serve a year of 366 days, (it being leap-year,) which he has not done.
Sixthly, Weekly or Monthly Wages and Notice. (a) Eixthly, Weekly Where the duration of the hiring is not expressed in the contract, the
question whether it is a yearly hiring or not, will frequently be determined notice.
by the stipulation as to wages. Thus where the parties agree for yearly wages, the presumption of a yearly hiring arises. “ If the payment of weekly wages be the only circumstances from which the duration of the contract is to be collected, it must be taken to be only a weekly hiring; but if there be any thing to shew that the hiring was intended for a year, the reservation of weekly wages will not control that hiring.”—Per Buller, J.
Rex v. Newton Toney, 3 T. R. 453. A contract for Rex v. Dedham, Burr. S. C. 653; 2 Bott, 292; 1 Nol. P. L. 367, 369, wages at six shillings a week,
374. The pauper was hired in April, 1767, to J. Mason, to serve him in summer and the business of a glazier, at the wages of 6s. a week, board, lodging, and winter, is a washing, summer and winter. He served for eleven months, when his master, weekly, and not a yearly, hiring.
having taken an apprentice, informed him that he must lodge out of his house. Upon which the pauper demanded 6d. a week more, alleging that he would otherwise quit the service, on account of his master's having withdrawn from the original agreement. He received the additional 6d. a week till the September following. And the pauper apprehended he was bound to stay with his master a year. The sessions thought a settlement was gained.—Lord Mansfield, C. J. All the cases require a hiring for a year, and there must be a reciprocal obligation on both parties. I see nothing here to make it a hiring for a year. It was a hiring at so much per week: when the master could not lodge the servant any longer, they came to a new agreement for an additional 6d. a week. The servant alleged that he would quit the service unless the master would comply with his demand. And to prevent his doing so, the master complied, and paid him 6d. a week more.— Yates, J. There must be a hiring for a year, either in law or express words. These words do not express it. The demand made by the servant destroys the presumption ; so that neither of them seems, at that time, to have thought the contract originally made between them was binding for a year.— Aston, J. Though a general hiring is a hiring for a year, yet there must be an obligation upon the servant for a year. But nothing here infers such an obligation. “Six shillings a week, summer and winter," only imports that the wages should continue always the same, and not be varied according to the seasons. The master's complying with the demand,
shews how the contract was understood by them both. A hiring at so Rex v. Newton Toney, 2 T. R. 453; 1 Nol
. P. L. 367. W. Slater removed much a week is not a general
from Harbridge to Newton Toney. Case: Slater went to one Postans, a publihiring.
can, at Newton Toney, who had before employed him three times, to go into Shropshire with some hounds; and on his return from the last journey, he agreed to live with Postans as ostler, at 4s.6d. per week, and continued with him as ostler for one year and a half. On demanding his wages, Postans alleged that, as he had received vails, 4s. 6d. a week would be too much; whereupon he agreed to accept after the rate of 101. a year, in lieu of 4s. 6d. per week. He then left his service, and lived elsewhere for five or sis months, when he returned to Newton Toney, and agreed with Postans to
(a) See division of the subject, ante, 319.
serve him again as his ostler, as he had done before, at 4s. per week, which was Sixthly, Weekly about 101. a year, and which he received when he asked for it. Under the latter agreement he lived one year and a half, but thought himself as a weekly servant, and at liberty to leave his service at any time.-Ashurst, J. The case of Rex v. Lledham is much stronger than this. It is impossible to distinguish the two cases upon principle; here the pauper “ hired himself as an ostler at 4s. 6d. per week,” but “ that cannot be considered as a general hiring ;” and if either party had chosen to dissolve the contract before the end of the year, no action could have been maintained by the other. Buller, J. This case is not so strong as Rex v. Dedham, for there the expression, summer and winter, shewed that the party had it in contemplation to continue a year in the service. Here the hiring is merely at so much per week: now, “ if there be any thing in the contract to shew that the hiring was intended to be for a year, there a reservation of weekly wages will not control that hiring; but if the payment of weekly wages be the only circumstance from which the duration of the contract is to be collected, it must be taken to be only a weekly hiring,” and this hiring is of that kind.Grose, J. It appears that the pauper actually left his service in the middle of the year, which satisfies me that it was not intended by the parties to be a hiring for a year. Order of sessions quashed.
Rex v. Odiham, 2 T. R. 622; 1 Nol. P. L. 368 ; was also a case of weekly wages, similar to the preceding, and was given up by the counsel as having been determined in the above case.
Rex v. Mitcham, 12 East, 351; 1 Nol. P. L. 368. Removal from A hiring for so Mitcham to Burghfield. Order quashed. Case: J. Pendry was hired by long as the masGraves, the keeper of a toll-gate (a) in Egham, at 3s. a-week for as long time ter and servant as his master and himself could agree, to assist in collecting the tolls: he could agree, is served for more than a year, assisting Graves collecting the tolls, and occa- hiring, and gives sionally took care of a horse and some hounds. The hounds were kept in nu settlement. premises belonging to the toll-house; and Pendry during all that time resided in the toll-house. Graves did not hire him as he had before hired a brother of Pendry, with whom he expressly contracted as for a yearly servant. Graves paid Pendry as he wanted money, pounds at a time. Řex v. St. Ebbs, Burr. S. C. 287, was quoted, and Lord Ellenborough said, that was an indefinite hiring at so much a year, determinable at the end of the first quarter. This case is nothing more than a hiring at so much a-week, which, where nothing else appears to the contrary, is a weekly hiring within the rule laid down in Rex v. Newton Toney; and it cannot alter the case by adding that which must necessarily have been understood, that the hiring was to continue as long as the master and servant agreed: that is, from week to week.
Rex v. Dodderhill, 3 M. f. S. 243; 1 Nol. P. L. 370. J. Hill, the A servant in hus. pauper, hired himself as a servant in husbandry to Broad, who occupied a bandry, hired at farm in St.Peter, to serve him for the weekly wages of four shillings, board, of four shillings, washing, and lodging, except in the harvest month, when his wages were to board, washing,
and lodging, be increased to ten shillings and sixpence per week, and then again to be reduced to four shillings. Nothing was said as to the time the pauper was harvest month, to continue. He served Broad eighteen months in St. Peter's, residing when this wages there, and receiving the four shillings per week, except during the harvest creased to ten month, when his wages were raised to ten shillings and sixpence, and after- shillings and sixwards were again reduced to four shillings. Lord Ellenborough, C. J. said, persen I take the rule of law to be, that if no particular time is expressed for the settlement; that continuance of the service, or is reasonably to be implied, a hiring for a year
being only a is to be intended. But it has also been laid down, that a reservation of weekly hiring. weekly wages imports a hiring by the week, unless the inference which arises from the reservation of weekly wages be repelled by other circumstances. Where there is a liberty to part at a month's notice, that imports
except in the
(a) Since the 3 Geo. IV. c. 126, under a keeper of a weighing machine, s. 51, and 4 Geo. IV. c. 95, s. 31, cannot create a settlement, ante, 318; hiring by a toll-gate keeper, or service and see Chilly's Col. Stat. Vol. I. 492,
Sicthly, Weekly that as there must be a month to determine the contract, the reservation of
weekly wages is not to limit the duration of the contract, and therefore it notice. becomes a hiring unlimited in duration, which the law terms a general
hiring, or a hiring for a year. What is the case here? The hiring is at weekly wages, except in the harvest month, when the servant is to be paid according to a higher rate of weekly wages during that month ; he is to be paid ten shillings and sixpence per week, the parties contemplating the possibility of the service continuing during the harvest month. If the exception had been “ for the harvest month," instead of “ in the harvest month,” it might have afforded a more plausible argument that the contract was meant to endure at least for the period of a month ; or if instead of ten shillings and sixpence a-week, it had been stipulated that the servant should receive two guineas for the month, that would have imported a consolidated month, (a) and might have repelled, on the same principle as the months notice, the inference arising from the reservation of weekly wages; but that is not the language of this contract. All that is stated here is the payment of weekly wages, which, according to the cases, controls the duration of the contract.-Le Blanc, J. concurred.-Bayley, J. There is nothing in this case to shew that the master bound himself to keep the man, or the man to serve the master for a year. The parties were only providing, that in case the weekly contract should continue up to the harvest month, the weekly wages should be increased. There was no obligation
either upon the master or the servant to continue it beyond the week. Weekly wages Rex v. Lambeth, 4 M. & S. 315. The pauper's husband had been hired and two guineas by one W. at eight shillings per week and two guineas for the harvest, to do for the harvest.
any thing the gardener should set him about; and under this hiring he
sessions quashed. Where nothing Rex v. Pucklechurch, 5 East, 382. The pauper hired himself for eight said as to term of weeks, at 5s. per week. At Midsummer, he agreed for 4s. a-week till Michael,
mas : at Michaelmas, he agreed to live with his master for board and lodging, have weekly pay, and 2s. 6d. per week. No time was mentioned then. In the summer, the it is only a week. ly hiring.
more wages and they were increased, and again reduced in winter. When the wages were increased, nothing was said as to leaving the service, or dissolving the contract. The alterations of wages took place in the beginning of a week. He entered and left the service the same day of the week. He served, in the whole, five years and a quarter. There was no complete settlement of wages till they parted.—Lord Ellenborough, C. J. If nothing be said as to the term of the service, but that the servant shall have weekly pay, it must primâ facie be understood, that the parties intended a weekly hiring and service. But circumstances may show a different intent. Here, in the first instance, the hiring was for a specific term of eight weeks ; the second hiring was also for a definite time short of a year. No time was mentioned at the third hiring, but it was a hiring at weekly wages. Then it falls within the cases of Dedham, Bradninch, and Newton Toney, where a hiring at weekly wages has been holden to be a weekly hiring, and if it wanted any additional circumstance, the conduct of the parties themselves shews that they so considered it, for the servant left his master at the end of a week in
the servant shall
(a) See, however, Kex v. Lambeth, 4 M. & S. 315; next case.
wages, and the
the middle of the year. If an indefinite hiring be stated on a record, and Sixthly, Weekly nothing shown to control it, it will be deemed a hiring for a year: but that is in the absence of any circumstance from whence a different intent is to be
nolice. collected. Afterwards Lord Ellenborough said, “ I hope it will be understood, that where nothing is said in the contract about time, but a reservation of weekly wages, it is only a weekly hiring." -Grose, J. It appears that the wages varied at the different seasons of the year: that cannot furnish the inference of an implied hiring for a year, for then the wages must have continued as they were first settled.—Le Blanc, J. There is another circumstance confirmatory of the construction that it is a hiring for a year, for the servant in the middle of the year required an advance of wages, to which the master acceded, a circumstance scarcely probable if they had contracted for a year.
Rex v. Warminster, 6 B. &. C. 77; 9 D. f. R. 70; 4 D. f. R., M. C. 197. Where the ser. The pauper, being of age, was hired to Mr. Thring, a solicitor at Warminster,
vant asked yearly as gardener. At the time of the hiring, Mr. T. asked the pauper what he master offered should give him a-week. The pauper asked 201. a-year wages, which Mr. T. weekly wages, refused to give, but said he would give 6s. a-week for the winter, and 98. a- cepted, this was week for the summer, which the pauper agreed to take. He was to be in Mr. not a yearly
T.'s house. Under this hiring the pauper served more than a year, living in hiring.
Rex v. Rolvenden. In June, 1820, the pauper agreed with W. Masters, A pauper agreed an innkeeper, at Rolvenden, to serve him as an ostler. The pauper and his with an inn. master bargained by the week, at 28. per week in the summer, and 1s. 6d. him as ostler, at per week in the winter. The pauper entered into the service in June. He two shillings a. received 2s. per week till the following Michaelmas : and from Michaelmas week in the sumto Lady-day, 1821, 1s. 6d. per week; and from Lady-day to Michaelmas, 28. shilling and sixper week. On the evening of the 23rd of February, 1823, the pauper left pence a week in his master's service, in consequence of a disagreement that took place be- that this was a
, tween his master and him on the morning of that day.-Bayley, J. This case weekly hiring cannot be distinguished from Rex v. Warminster. The hiring here is for an
only. indefinite period, at weekly wages, which is a weekly hiring. The mere arrangement that the wages shall be at one rate in the summer, and at another in the winter, does not show that the parties contemplated a service to endure through the summer and the winter, and, therefore, that they intended a hiring for a year; but shews, only, that they intended that if the servant, being hired at weekly wages, should remain till the summer, he should then have so much per week, and if he should remain till the winter, he should then have so much per week. The true meaning of such an arrangement is merely this : that the servant's wages, as a weekly servant, are to be regulated by the seasons. Looking at the terms of this contract altogether, they seem to me, clearly, to constitute only a weekly hiring, no service under which could confer a settlement. The other judges concurring, the order of sessions was quashed.
Rex v. Clare, Burr. S. C. 819; 2 Bott, 295; 1 Nol. P. L. 367, 372. The A hiring by the pauper, a journeyman miller, at Michaelmas, 1768, let himself to E. S. by month, at a the month, at the wages of 8s. a-month, and was at liberty to depart at à or a month's month's wages, or a month's warning. At the time of hiring, it was agreed warning, will not that if he continued in her service till harvest-time, he should be at liberty, hiring. during the harvest month, to let himself to any other person for the harvest
week, and condition for a
does not gain a settlement.
Sixthly, Weekly month. He continued five years in the service of E. S., and, during that time,
constantly let himself to some other person for the harvest, and received the notice.
common wages of 8s. from his mistress for the harvest month, and paid her one moiety of the wages earned at such harvest ; but generally, at the end of every month, and sometimes weekly, received his wages of 88. a-month, or in that proportion. He considered himself as a monthly servant, and at liberty to leave his mistress at the end of any month, on payment of a month's wages, or giving a month's warning. This point was given up by the counsel as indefensible :
the hiring being only a hiring by the month. A hiring to work Rex v. Hanbury, 2 East, 423 ; 1 Nol. P. L. 332. The pauper agreed to at three shillings work for one Saunders, as a blacksmith, at 3s. 6d. per week, with meat, drink, and sixpence per
washing, and lodging at Si's house : to part on a week's notice by either
party. The pauper continued to serve for six years, without any alteration week's notice,
of terms, when S. died. The pauper received his wages every Saturday night or Sunday morning: went where he pleased on Sundays, as well as on other days; but was entitled to his board if he stayed at home. On other days, if he wanted a holiday, he asked for it and had it, his master deducting his wages. The sessions thought this a general hiring. It was argued that the mere continuance of the service for six years, warranted the inference of a general hiring.–Lord Ellenborough said, Here the particular terms of the agreement are stated, and therefore we cannot presume that the pauper served under a different contract. His lordship added, that this case was decided by those of Dedham, Bradninch, and Newton Toney. That in the first, Lord Mansfield said, that all the cases required a hiring for a year, but that that was only at so much a-week. In the second, he observed that the pauper was under no obligation to serve a year, and unless that be so, there can be no settlement gained ; and that Rex v. Hampreston turned upon the circumstance of a month's notice to quit being required. But here the contract was determinable at a week's notice. Though the sessions have drawn a conclusion that this was a general hiring, yet it is clear that they meant only to state it as a conclusion of law from the antecedent facts, the propriety of which they meant to refer to us. But there is no ground for presuming a general hiring; it appearing expressly what the agreement was, in fact, which negatives a hiring for a year.
a week “the year
The following are instances in which the terms of agreement were, in most implied yearly hiring.
respects, like those in the former cases, but something was added by which
it appears that a yearly hiring was intended. But a hiring at Rex v. Birdbroke, 4 T. R. 245; 1 Nol P. L. 371. M. Meers was three shillings removed from Stoke to Birdbroke. Order confirmed. Case : The pauper round," each to was hired by J. Olley, farmer, at Stoke, at 3s. per week the year round; be at liberty on a each was to be at liberty on a fortnight's notice, but the pauper was not fortnight's notice, gains a
to go away at seed time, hay, or harvest. He stayed in that service a year, and received his wages at different times whenever he pleased.—Lord Kenyon, C. J., said, no doubt can be entertained on this case. It does not even rest on a general hiring, for this was an express contract to serve the year round. But it is said that this cannot be considered to be a hiring for a year, because there was a reservation of weekly wages, and because each party was to be at liberty to put an end to the agreement on giving a fortnight's notice; but whether the wages be to be paid by the week or the year, cannot make any alteration in the duration of the service, if the contract were for a year. This, therefore, was a contract for a year, at so much a week, with liberty to quit at any time, except seed, hay, or harvest time, on giving a fortnight's notice : “ but the power of giving notice makes no difference ;" for it has been held, that an agreement to leave the service on giving a month's warning, did not defeat the settlement. Rex v. New Windsor, ante, 360.—Buller, J., said, a hiring for a week, requiring a fort
night's notice, was never heard of. Hiring at so much per week, Rex v. Hampreston, 5 T. R. 205; 1 Nol. P. L. 367, 371. Order of and liberty to removal from Gillingham to Hampreston, confirmed. Case: The pauper, part on a month's W. Gray, went to Š. Hannam, a miller, of Gillingham, and agreed to potice, is a gene. ral hiring. serve him for 3s. 9d. per week; he considered himself obliged to serve his