Fifthly, What is a hiring for a year. A hiring for two half years in succession, will not make a yearly hiring, though such hirings be according to local custom. Hiring at a statute fair, if for less than a year, gains no settlement, though such a hiring be customary. Hiring for less than a year, to avoid a settle ment, although a year's wages be paid, is not a yearly hiring. Dunsford v. Ridgwick, 2 Salk. 535; 2 Bott, 250; 1 Nol. P. L. 356. A person was hired for half a year, and after that was hired again for another half year, with the same master, and served a year in one continued and entire service, but by several hirings.-By the Court: It ought to be one entire contract and one entire service; the one is required by the statute as well as the other. If a service under several contracts shall gain a settlement, one that serves by the month, by the week, or by the day, if he continue a year, shall gain a settlement. One may hire 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. A 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. Rex v. Lowther, Burr. S. C. 674; 2 Bott, 238; 1 Nol. P. L. 356. Case: The pauper was hired to W. Thompson, from Whitsuntide to Martinmas; 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. Rex v. Hanwood, Doug. 439; Cald. 100; 1 Nol. P. L. 357. At Otley, there is a custom for servants to hire by the year at two different statute-days; one on the Friday before Old Martinmas, and the other on the Friday next after Old Martinmas; at which latter statute-day they always hire till Old Martinmas 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. Newstead, 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 held 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 Michaelmas in that year, the pauper was hired to serve W. C. 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 no 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. Rex v. Little Coggeshall, 6 M. & S. 264. The pauper, at Michaelmas, 1806, went as a servant in husbandry, for a month, upon liking, and if he suited his place he was to continue during the year, and have three guineas wages. When he had served the month, his master said that he suited him, and if 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 he did; and then desired him to go to his father, where he might hear of another place. The pauper made no objection; took his wages, went away, and never returned. The sessions thought it a dispensation from service for 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. Rex v. Astley, M. 1815. 4 Burn, 279, 23d edit.; 1 Nol. P. L. 257. Removal from Corley to Astley. Order confirmed. Case: At Michaelmas, 1812, the pauper was hired by Mr. Lillyman, of Astley, for fifty-one weeks, 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 Saturday, 13th October, 1787, being three days after Old Michaelmas day, which was on a Wednesday, the pauper hired himself to J. Clarke, to serve him until the next Michaelmas. He accordingly went into such service, and continued therein till Saturday the 11th October, 1788, being the day after Old Michaelmas day, which was on a Friday, (it being leap-year,) and was paid his wages and went away. As this was a service for 365 days, 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. & S. 350. Case: The pauper was hired in 1807, at Thame fair, held on the Tuesday next after Old Michaelmas day, which in this year happened on the 13th October, for eight guineas, five shillings and three-pence. He served till the 11th October, 1808; on which Fifthly, What is a hiring for a year. Eixthly, Weekly wages and notice. A contract for wages at six shillings a week, summer and winter, is a weekly, and not a yearly, hiring. A hiring at so much a week is not a general hiring. day he received his full wages, and quitted the service. 1808 was leap-year. Lord Ellenborough. In those years which consist of 366 days, a hiring 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) 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 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. Rex v. Dedham, Burr. S. C. 653; 2 Bott, 292; 1 Nol. P. L. 367, 369, 374. The pauper was hired in April, 1767, to J. Mason, to serve him in the business of a glazier, at the wages of 6s. a week, board, lodging, and washing, summer and winter. He served for eleven months, when his master, 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. Rex v. Newton Toney, 2 T. R. 453; 1 Nol. P. L. 367. W. Slater removed from Harbridge to Newton Toney. Case: Slater went to one Postans, a publican, 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 107. a year, in lieu of 4s. 6d. per week. He then left his service, and lived elsewhere for five or six months, when he returned to Newton Toney, and agreed with Postans to (a) See division of the subject, ante, 319. wages and notice. 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. Dedham 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. Removal from Rex v. Mitcham, 12 East, 351; 1 Nol. P. L. 368. Mitcham to Burgh field. Order quashed. Case: J. Pendry was hired by Graves, the keeper of a toll-gate (a) in Egham, at 3s. a-week for as long time as his master and himself could agree, to assist in collecting the tolls: he served for more than a year, assisting Graves collecting the tolls, and occasionally took care of a horse and some hounds. The hounds were kept in 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. Rex v. St. Ebbs, Burr. S. C. 289, 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. & S. 243; 1 Nol. P. L. 370. J. Hill, the pauper, hired himself as a servant in husbandry to Broad, who occupied a farm in St.Peter, to serve him for the weekly wages of four shillings, board, washing, and lodging, except in the harvest month, when his wages were to 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 to continue. He served Broad eighteen months in St. Peter's, residing there, and receiving the four shillings per week, except during the harvest month, when his wages were raised to ten shillings and sixpence, and afterwards were again reduced to four shillings. Lord Ellenborough, C. J. said, I take the rule of law to be, that if no particular time is expressed for the continuance of the service, or is reasonably to be implied, a hiring for a year is to be intended. But it has also been laid down, that a reservation of 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 (a) Since the 3 Geo. IV. c. 126, s. 51, and 4 Geo. IV. c. 95, s. 31, hiring by a toll-gate keeper, or service under a keeper of a weighing machine, Sizthly, Weekly wages and notice. Weekly wages for the harvest. 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 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 month's 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. 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 any thing the gardener should set him about; and under this hiring he served four years in Chadlesworth. The sessions thought he thereby gained a settlement in Chadlesworth, and now it was contended, in support of their order, that here was an agreement for a gross sum to be paid for the harvest, and not merely, as in Rex v. Dodderhill, for an increase in the weekly wages in the harvest month. And for the harvest, imports for a consolidated period, at least as long as a month, for which period these wages are reserved, which is inconsistent with the notion of a weekly hiring; and therefore this case falls within the principle of Rex v. Hampreston, 5 T. R. 205, post, 352.— But per Lord Ellenborough, C. J. It does not distinctly appear whether the two guineas were to be paid de incremento, or were to cover the whole harvest. All that appears is, that the hiring being by the week, the parties contemplated that possibly it might last through the harvest. Order of sessions quashed. Where nothing said as to term of service, but that the servant shall have weekly pay, it is only a weekly hiring. Rex v. Pucklechurch, 5 East, 382. The pauper hired himself for eight weeks, at 5s. per week. At Midsummer, he agreed for 4s. a-week till Michaelmas: at Michaelmas, he agreed to live with his master for board and lodging, and 2s. 6d. per week. No time was mentioned then. In the summer, the asked for more wages and they were increased, and again reduced in pauper 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 (a) See, however, Kea v. Lambeth, 4 M. & S. 315; next case. |