Eighthly, Of retrospective hiring.

The contract for

a year must not

embrace any time

past.

Retrospective hiring not suffi.. cient.

Ninthly, Of hirings made to avoid a settle

ment.

Hiring three days

till the Michaelmas following, gains no settle. ment, although

such contract be made with a view

to prevent a settlement.

Eighthly, Retrospective Hiring. (a)

Rex v. Ilam, Burr. S. C. 304; 2 Bott, 356. R. Port, of Ham, hearing that the pauper was a likely boy to serve him as a postillion, sent to the pauper's father to have him upon liking. After the pauper had served Port eight weeks, Port hired him for a year, to commence from the beginning of the said eight weeks. He served Port a year, (including the eight weeks) and ten days, and no longer.-By Lee, C. J. This case differs from all the former cases. In Rex v. Lydney, the first hiring was conditional for a quarter of a year upon liking; and if they did like each other, then to continue for a year: yet it was holden a good settlement, as they did like each other; and the year's service was performed. In Rex v. New Windsor, it was uncertain till the end of the year, whether the hiring would be for a year; yet happening so in the event, it was held good. In the present case, the commencing of the hiring was eight weeks after the boy had been upon liking, with a retrospect to his first coming into the service. Now a man cannot serve from a day past.- Mr. J. Foster thought the cases of Rer v. Lyndney, and of Rex v. New Windsor, had carried the matter as far as possible; and if they were new questions, he should doubt of those resolutions: but both those were hirings for a year, previous to the service; and the conditions were performed. He observed also, that the safest way is to adhere strictly to the words of the act of parliament; for refinements upon these questions have produced infinity of questions and difficulties. And the Court were of opinion, that the pauper gained no settlement.

Rex v. Marton, 4 T. R. 257; 1 Nol. P. L. 361. The pauper, being at the time under age, went into the service of W. Fisher, in Marton, and stayed about a fortnight or three weeks without any hiring. The pauper's father then made an agreement with Fisher, for the pauper to serve him for a year, at 2s. 6d. per week. The time he had then served, was to make a part of, and be reckoned in, the year. He stayed in Fisher's service upwards of fifteen months from his first coming, and he received his wages according to the above agreement. It was admitted by the counsel who was to have supported the order of sessions by which the settlement was adjudged to be in Marton, that the order could not be supported, because according to Rex V. Ilam, and Rex v. Hoddesdon, Cald. 23, a retrospective hiring was not sufficient. See also Coombe v. Westwoodhay, ante, 343.

Ninthly, Hirings made purposely to avoid a Settlement. (b)

A master may hire a servant for a less period than a year, for the express purpose of preventing the servant from gaining a settlement by such hiring and service. But this must be done bona fide, for if it is made to appear that the contract was really for a year, though ostensibly or colourably for a shorter time, the settlement is not to be thus defeated.

Rex v. Mursley, 1 T. R. 694; 2 Bott, 246; 1 Nol. P. L. 357, 358. after Michaelmas, W. Coleman, the pauper, three days after Michaelmas, 1782, was hired by J. Pollard, of Mursley, to serve him in husbandry, until the Michaelmas following he served that time, and received his wages. At the time of hiring, Pollard told him he should not belong to Mursley. The sessions stated it as their opinion, that all such transactions on the part of masters are fraudulent, to prevent servants gaining settlements; and adjudged that the pauper gained a settlement. But by the Court: It is very clear that this is not a hiring for a year so as to gain a settlement. And as to the question of fraud, Buller, J., said, that only arises where in truth there is a hiring for a year, and a service for a year, and the parties endeavour to colour it, in order to prevent the settlement: in such a case the Court may say it is fraudulent; but a master may, if he please, hire a servant for less than a year, for the express purpose of preventing his gaining a settlement. Both orders quashed.

Rex v. Haughton, Fol. 137; 1 Stra. 83; 10 Mod. 392; 1 Nol. P. L. 356. J. Erans was hired with Trubshaw, of Haughton, from Ash Wednesday to Christmas, and served him that time. Then he went away from him, and stayed with his father in Ranton about a week. Then he returned to T. and was again hired with him for eleven months, and served him for eleven months. Then he departed from T., and took his clothes with him, and was absent one week. Then he returned to T., and was hired with him for eleven months, and accordingly served him; and then left that service, and went to his father in Ranton, and stayed about one week. Then Evans served one Sutton, of Haughton, for about three weeks, then returned to Ranton, and stayed for about a week: and then returned to Sutton, and hired with him for eleven months, and served with him within a fortnight or three weeks of the last eleven months, when, by agreement with Sutton, to avoid a settlement in Haughton, he left him, took his clothes, and went into Gnosall, and there continued about a week; then returned to Sutton, and continued with him so long as to make up his service for the last eleven months; and three weeks before Christmas, Evans hired himself again to Sutton for another eleven months, and served him from that time till within three weeks of Michaelmas following, and then came away, and married. The question was, whether these several hirings were sufficient to gain a settlement in Haughton ?—Parker, C. J., said, this was an apparent fraud, and different from all the other cases.-Pratt, J., said, I doubt we must take the law to be, that there must be a hiring for a year, and a service for a year. Here the sessions have found specially, that there is neither hiring nor service for a year. And suppose a man that lives in a parish encumbered with poor, hires a servant for eleven months only, purposely, by way of caution, to prevent a charge upon the parish, the intent is lawful, and how can such hiring and service gain a settlement? And as to the matter of fraud, if there be any, the justices of the peace are judges of that.-Eyre, J., was of the same opinion as Pratt, J., (Powis, J., being absent). Afterwards, in Easter term, after long consideration, the opinion of all the Court was, that these hirings and service in Haughton were not sufficient to gain a settlement and though such hirings, as in this case, do defeat settlements, yet if that be a mischief, it is to be remedied by the legislature, and not by the Court, which is to judge on the law as it stands.

Rex v. Milwich, 2 Burr. S. C. 433; 2 Bott, 306; 1 Nol. P. L. 344, 428, 429. T. Thacker was hired at Milwich for eleven months for four pounds ten shillings, and it was agreed between him and the master, that he should give in a month's service beyond the eleven months. He served the eleven months, and also the given-in month, except the last three days, and he could not say whether he served them or not; but he received the whole four pounds ten shillings wages. It was moved to quash these orders, because this was not a hiring for a year, being only for eleven months; nor a service for a year, because three days were wanting at the end of it. But the Court were very clear, that this agreement was a manifest contract to serve for a year, notwithstanding the form of expression (which by the way they considered as an attempt to prevent the man's gaining a settlement, by a very paltry evasion). The real question was no more than whether eleven and one make twelve? There are no particular technical words necessary to make a hiring for a year. The substance of this agreement is, to serve twelve months, for four pounds ten shillings. And what signifies the variation of expression? Every contract to serve is a contract to serve for a year, unless there be something to explain it otherwise; and certainly there is nothing here to explain it otherwise. And no action could have lain for the wages, till the end of the whole twelve months. And as to the servant's going away three days before the end of the year, the state of the fact doth not support the objection. He could not say whether he did or not. But he received the whole four pounds ten shillings wages; which at least seems to imply the master's consent or permission. (See Rex v. Sulgrave, post, 382.)

Tenthly, Of conditional hiring.

A pauper was by indenture hired for a year as a driver in a colliery, at the wages of one

shilling and tenpence for a good

day's work, not exceeding fourteen hours, and two pence a day more when that time was exceeded; and he was to forfeit ten

pence for every act of disobedience, and two

Tenthly, of Conditional Hirings. (a)

The hiring may be conditional, but it must not be exceptive. The distinction between them is clearly explained, by Mr Justice Bayley, thus—“ A conditional hiring is where the contract is for the entire year, but a provision is introduced that, on a given event, it shall be competent to either party to suspend or put an end to the service. If neither party avails himself of the condition, the contract becomes absolute. But in an exceptive hiring, the relation of master and servant cannot subsist through the year, unless they enter into some further arrangement. It is no objection to the contract, that there is an implied exception by the custom of the country, in a particular trade, or by the general law of the land. But any limitation as to the number of working hours is an exceptive hiring, and will not gain a settlement, ante, 368. Rex v. Byker affords the best illustration of these rules. Rex v. Byker, 2 B. & C. 114; 3 D. & R. 330; 2 D. & R. Mag. Ca. 15; 1 Nol. P. L. 379. Order of removal of W. Gray from Haughton-le-Spring to Byker, was confirmed, subject to a case. By an indenture of the 23d of October, 1809, made between J. Potts of Byker of the one part, and the several persons whose names or marks were thereunto subscribed of the other part; J. Potts did hire the several other parties thereto, and they did bind themselves, as workmen or servants, to be employed in a certain colliery for a whole year, from the 21st day of January, 1810, and to serve J. P. in the colliery for certain wages mentioned; and J. P. did covenant to pay to every driver, for every good day's work, not exceeding fourteen hours in single-shaft pits, (and 2d. per day when that time was exceeded,) 1s. 10d. And the several shillings and six-persons hired did covenant with J. P. diligently to perform and obey his orders as to working the colliery, and to work the colliery fairly and regularly, or in default thereof should forfeit (to be retained out of their wages) 10s. 6d. for every act of disobedience, and 2s. 6d. for lying idle upon each hewer, driver, &c.; and for every working day which any of them should absent themselves from their employment, or should neglect to fulfil the whole of an usual day's work, unless prevented by sickness or some other There was a pro- unavoidable cause, the defaulters should forfeit 2s. 6d. for every such default viso, that nothing in the indenture or neglect, all which forfeitures should be deducted out of the wages of each should be con- offender at the first pay-day next after the offence. There was a proviso, that strued to oust the the indenture should not be construed to extend to exclude any justices from any cognizance which the law of this kingdom hath given to justices over masters and servants; but that the several parties should be at full liberty, from applying to upon any breach of any of the covenants, to require the aid of any justice to compel the performance, or punish any breach of such covenants, as far as by law they could if the indenture had not been made. And it was further agreed, that if J. P. should think it necessary, about Christmas, 1822, to do any thing needful to be done in the colliery, or the working of the that then it should be lawful for him to stop the workings for any same, time not exceeding seven days, without paying any wages to those prevented from doing their daily work, except such of them as should be employed in any other work about the colliery, who should be paid reasonable wages for such work. This indenture was executed by J. Potts and by the pauper, together with other workmen. Gray was a driver. When the indenture was executed, Gray was in the service of J. Potts at the colliery, and he continued in his service as a driver for a whole year, from the 21st of January, 1810, till the 21st of January, 1811, and resided during all that year in Byker. There was no evidence, either that the pauper had or had not incurred any penalty or forfeiture during his year's service under the indenture, or that any deduction had or had not been made from his wages.

shillings and six. pence per day for lying idle (to be deducted out of his wages).

jurisdiction of the justices, or to prevent either

master or servant

them in cases of disputes; and a covenant, that in case the master about Christmas should wish to repair any engine, &c., belonging to the colliery, he might stop the work

ings for any period not exceeding seven days, without paying any wages to the

pauper, unless employed in other work : Held, that this was a conditional, and not

an exceptive contract.

Bayley, J., on a subsequent day delivered the judgment of the Court. The question in this case was, whether the hiring was conditional or exceptive. Many cases of this description are to be found in the books,

(a) See division of this subject, ante, 319.

Tenthly, Of conditional

hirings.

between which the distinction is rather subtle, and at first sight not easily discovered. Adverting to them all, the proper distinction appears to be this; if the bargain be originally made for an entire year, and terms are introduced applicable to a continuance of the relation of master and servant during the whole year, but there is also a provision, that in a given event it shall be competent to the parties to put an end to, or suspend the service for a part of the year, still a settlement is gained if the service is actually performed for a whole year, and neither party avails himself of the condition. A conditional hiring is, for this purpose, the same as an absolute hiring, unless the condition is acted upon. An exceptive hiring is one by which the relation Distinction beof master and servant will not subsist for the whole year, unless some further tween conditional and exceptive arrangement is entered into; and if by the bargain days or hours are excluded hirings. from the service, that is an exceptive hiring. It has been contended that here both days and hours are excluded; but we are of a different opinion. The pauper was hired by indenture, and it was agreed that the master should pay for every good day's work not exceeding fourteen hours, (and 2d. per day when that time was exceeded,) 1s. 10d. It was said that the pauper was entitled to absent himself at the expiration of fourteen hours, and that the master could not compel him to work any longer. We are of opinion, that the time was only mentioned as the measure of the wages; that the contract does not impose any limit upon what might reasonably be required by the master; and that the relation of master and servant continued during the whole twenty-four hours. Upon the forfeitures also, we think that the pauper might not, upon payment of them, be absent if he thought fit, but that they were inserted to enforce regular attendance; and this view of it is confirmed by the clause stipulating that nothing in the contract shall be construed to abridge the power of the magistrates. Another clause has been insisted upon for the appellants; that relating to the repair of the engine. If that was an exception, this was a contract for a year, minus seven days. But we think it a contract for a year, with power to the master to stop the work if he thought fit. Had he done so, the question would have been different; but that is not found. This, therefore, was a bargain for a year, with liberty to suspend the service, which constitutes a conditional and not an exceptive hiring. This distinction between conditions and exceptions is consistent with all the decisions. In the cases where a servant having liberty to be absent, has been held not entitled to a settlement, it will be found, either that the servant availed himself of the liberty, or that the time was necessarily excepted out of the original contract. This being a conditional hiring, and the condition not having been acted upon, the pauper gained a settlement in Byker. And the order of sessions was therefore right. Order confirmed.

The following correct summary is from a note by the learned reporters of the above case of Rex v. Byker.

In Rex v. Bishops Hatfield, 2 Bott, 211, the pauper was hired for a year, with liberty to let himself for the harvest month to any other person. In Rex v. Empingham, 2 Bott, 217, the hiring was for a year, with liberty to be absent eleven days during the sheep-shearing season. In Rex v. Arlington, 1 M. & S. 622; the hiring was for a year, with liberty to be absent during the sheep-shearing season. In Rex v. Turvey, 2 B. & A. 520; the hiring was for a year from Michaelmas, to go away a month at harvest, and make up the time after Michaelmas. In each of these cases the pauper did absent himself according to the liberty reserved in the original contract; and it was held that no settlement was gained by such hiring and service. There are two cases, Rex v. Westerleigh, Burr. S. C. 753; and Rex v. Winchcomb, 1 Doug. 391; which appear to be at variance with those decisions. In each of these two cases the pauper was hired for a year, with liberty to be absent on duty as a militia man for a month, and he accordingly was absent; yet it was held that the hiring and service conferred a settlement. In Rex v. Over, 1 East, 599; Lord Kenyon says, that the ground of those decisions was, that the leave of absence stipulated for, was no other than what the law would have compelled without stipulation. In several other cases, it has been held that implied exceptions will not VOL. IV. A A

conditional hirings.

Tenthly, of prevent the gaining of a settlement, but that if they are expressed in the contract they will have that effect. Rex v. Macclesfield, Burr. S. C. 458. Rex v. All Saints, Worcester, 1 B. & A. 322. And there appears to be this distinction between them, that notwithstanding the implied exceptions, the relation of master and servant continues during the whole year; whereas that relation has been considered at an end during the excepted periods stipulated for in the contract. Rex v. Wrington, Burr. S. C. 280. But in the cases of the militia men, it seems that the relation of master and servant, must at all events have been suspended for the time during which they were out on duty. It seems difficult, therefore, to understand on what principle those cases are sustainable; and see the observations made by the Court, in Rex v. Beaulieu, 3 M. & S. 229.

A hiring at

wages, payable quarterly, with liberty to part on a month's notice at the end of any

quarter, is a yearly hiring.

A hiring at five pounds per year wages, with liberty to part at a month's wages or warning, is a yearly hiring.

Rex v. Atherton, Burr. S. C. 203; Bott, 360. R. Harrison was hired for a year by T. Barlow of Barton, at 41. wages, payable quarterly. And it was agreed, that either should be at liberty to determine the contract, at the end of any quarter, on a month's notice. No notice was ever given, and the servant continued in the service the whole year. The servant declared at the time of the hiring, that the reason of the hiring being made determinable at the end of every quarter upon notice, was, that he would not be hired so as to lose his former settlement. But by the Court unanimously and clearly: this is a good settlement.

Rex v. New Windsor, Burr. S. C. 19; 2 Bott, 248; 1 Nol. P. L. 362, 365, 366. D. Brookes was hired to Colonel Merrick at Thorpe; and was to go into her service a month upon liking; and was to have 5l. a-year wages; but was to go away from her service, on a month's wages or a month's warning on either side. She continued near two years in this service, without any other hiring, and received her wages quarterly. This, by the unanimous opinion of the Court, is a hiring for a year. (a)

In Wandsworth v. Putney, 2 Bott, 288, the master told a boy coming into his service, that if he staid a year and behaved well, he would give him a livery and wages the next year; this was held to be a clear yearly hiring. Hiring condi- Rex v. Lidney, Burr. S. C. 1; 2 Bott, 358; 1 Nol. P. L. 361. M. tional as to likBrewer was hired to W. Wake for a quarter of a year; and if her master ing, a good hiring for a year, where and she liked one another, she was to continue for a year, and to have 31. for her year's wages. She entered into the service, and continued one whole year, and received the 31. It was argued, that as it was in the election of either party, during the first quarter, whether she should continue or not, she could not be originally hired for a year. But the Court held this conditional hiring to be a good hiring for a year: since the master and she did like one another, and a year's service was actually performed under it.

the service continues so long.

Rex v. St. Ebbs, Burr. S. C. 289; 2 Bott, 361; 1 Nol. P. L. 361. C. Guy was removed from Holywell to St. Ebbs. Order confirmed. Case: The pauper was hired to T. White of Holywell, to come for a quarter of a year, and to have after the rate of 20s. a year; and if he and his master liked each other, he was to continue. He did continue a year and a half above the said quarter, without any other hiring, and received his wages as he had occasion for them. It was moved to quash these orders, for that the settlement was in Holywell by this hiring and service: for a conditional hiring is a hiring for a year, provided the condition be performed. And a rule was made to shew cause. But no cause was shewn. And the rule was made absolute. See supra, the cases where the pauper might quit, or be turned away, at pleasure.

Rex v. Sandhurst. 7 B. & C. 557. A hiring for a year, by an officer of a military college, reserving the right of dismissing the pauper without notice, is a good hiring for a year. (See this case, post.)

(a) Beeston v. Colyer, 4 Bing. 309.Gaselee, J." In domestic service there is a common understanding that such a contract may be dissolved on reasonable notice, as a month's wages or a month's

warning. There does not appear to be any such practice with respect to servants in husbandry." 2 Starkie R. 256,7 and see Car. & Pay, 370, 510, 608.