Thirdly, Of dispensation. A pauper sum from Kingsbury to Polesworth. Order confirmed. Case: The pauper was hired by Mr. Hay of Polesworth, at Polesworth statutes, a fortnight before Michaelmas, 1799, as waggoner's lad, at 37. 10s. wages for a year, commoned his master mencing from the day after Fazely fair, the Tuesday after Michaelmasday. The pauper remained in the service till a fortnight before Michaelmas in the following year, when he went to Middleton statutes, having previously asked his master's leave, and been refused. The following day the pauper asked his master what work he was to do; the master told him he might go where he had been the day before, and that he would not employ him any more. The pauper asked the master to pay his wages, and for wages. He offered to continue in the service, but the master refused; full wages were paid, and pauper said he was satis fied he made no contract for the time remaining: Held, a dispensation. If a servant does not come into the service till three days after his contract, and is absent at dif. ferent times without consent, but his master receives him again, it is a dis pensation. If a servant run away from his master and con- master apprehend said if he did he would go. The master refused, and said he would ob- Rex v. East Shefford, 4 T. R. 804; 2 Bott. 335; 1 Nol. P. L. 394. The pauper was hired by Birch, for a year, at four guineas' wages; he went accordingly to his service, and continued there eight weeks, when he ran away, and was absent thirteen weeks, during which time he worked with, and received wages from, another person. Birch then apprehended him by a warrant; but in his way to a justice, asked him whether he would come back to his place or go to prison? and if he would come back, and go on in his place as he ought to do, he might. The pauper said, he would come back; and his master asked him then, what he should be willing to abate for the time he had been absent? The pauper said, he thought 1s. a-week would not hurt him, which was agreed to; and the pauper returned into his service, and continued till the end of his year, when he received all his wages, except the 13s. which had been agreed to be deducted.-Lord Kenyon, C. J. If the old contract were dissolved when the servant absented himself, and a new one entered into on his return, I agree that the pauper could not gain a settlement by serving under it. And therefore the question is, Whether the service after the pauper's return were performed under the old or a new contract? This is one of the many cases in which we have to regret that the words of the statute have been departed from: but as there is a series of adjudged cases, the principle of which applies to the present, it is too much for us to overturn them; though, if the question were now to arise for the first time, perhaps we should make a different determination. It has been decided that absence at the beginning, the middle, or the end of the year, may be dispensed with, either with the consent of the master, or for an excusable cause. In Rex v. Hanbury, an absence for a fortnight did not defeat the settlement, though the wages were deducted for that time. Now it is impossible to distinguish this case from that in principle. It has been said, however, that the absence in that case was for a shorter period than in the present: but I wish that those who used such an argument would have drawn the line, and given us the ne plus ultra. Probably, if the first case after the statute had arisen upon an absence of thirteen weeks, the Court would have started at the question; but the Court have gone on step by step, and having held that service for a fortnight may be dispensed with, I think we are bound by the principle of those cases to say, that this pauper gained a settlement; for on his return he was received again into his master's service, where he continued under the old contract. There is no pretence to say that he entered into a new contract; and the master's object in apprehending him by a warrant was to compel him to complete the service under the old contract.-Buller and Grose, Js., were of the same opinion. Rex v. Christchurch, Burr. S. C. 494; 2 Bott, 436; 1 Nol. P. L. 406. E. Maxey was, on the 24th day of August, 1757, hired into Christchurch for a year, and served till the 7th of August, when she was frightened into fits, and incapable of doing any service. Her master being disturbed by her fits, desired Mr. Limonier, who lived in Bethnal Green, to take her into his house, that she might be under the care of her sister who lived there; but if Mr. L. refused to receive her, she was then to return to her master's house. Mr. L. took her in; and she resided there about five days, and then was taken into the hospital. The day after she had been received into Mr. L.'s house, she returned to her master's to fetch away her clothes, and her mistress paid her two shillings, which made up the full year's wages. No words of discharge passed between her and her mistress; but she looked upon herself as then discharged from her service; but believed that had she recovered her health, her master would have received her again into his service. She continued under the indisposition till after the year from the time of hiring was expired, and never returned again into her master's service, who, on the 17th of August, 1758, hired another servant in her place. -Lord Mansfield, C. J. This is certainly a fair bonâ fide service for a year, without any fraud on either side. If a master gives his servant leave to go upon any other service, or to be absent for a short time, and pay him his whole wages, this is a good service. If the servant be taken ill, by the visitation of God, it is a condition incident to humanity, and is implied in all contracts. Therefore the master is bound to provide for and take care of the servant so taken ill in his service (a); and cannot deduct wages in proportion to the continuance of the servant's sickness. And there is no difference, whether the accident of sickness happen in the middle or at the end of the year. It is equally the act of God, and without any fault of the servant. And in the present case, the servant's being at Mr. Limonier's, or in the hospital, is just the same thing as her being kept in the master's house, under his own roof. Rex v. Sharrington, 2 Bott, 322; 1 Nol. P. L. 406, 407. The pauper hired himself before Michaelmas, 1782, for a year to Mr. Hardy, brewer, at Letheringsett, to drive a team, and do whatever he was bid. After having (a) But see title Casual Poor, (ante, 239.) Thirdly, Of dispensation. If a servant, at her master's inhis family on account of illness, to the hospital, and her mistress give her the remainder of her wages, it is a dispensation, although she never return. stance, go from A pauper in liquor met with which disabled an accident, Thirdly, of dispensation. him for twentynine weeks. master always refused to receive him back or em lived with his master seven weeks, as he was driving the beer waggon, being in liquor, he fell off the shafts, and broke his thigh. He was carried to the Norwich Hospital, where he continued twenty-nine weeks. On quitHis ting the hospital he returned to Hardy, who refused to receive him, offering to pay him for the seven weeks, and to make him a present; which the He then went to Sharrington, and contined fourteen pauper refused. ploy him: Held, weeks, and then by an order of justices on the 30th September, 1783, he was sent to Hardy, who then also refused to receive him. The pauper continued in Letheringsett at a public house. He did no work for Hardy after he came out of the hospital, being incapable of work. The Court were of opinion that a settlement was gained by this service at Letheringsett. See remarks on this case in Rex v. Salton, (post). a dispensation. Absence at the end of the service on account of illness, is no dissolution, although the master deduct a sum from the wages on that account. The master removed to another town, before the servant's year ended, and paid her the whole Rex v. Maddington, Burr. S. C. 675; 2 Bott, 312; 1 Nol. P. L. 391, 406, n. The pauper, being hired for a year from Michaelmas, continued in his service till about three weeks before the next Michaelmas, when having been kicked by one of his master's horses, he went home to his friends, about five miles off, without his master's knowledge or asking his leave, to cure his leg; and continued there during the remainder of the year, and never returned to his master, except for his wages, some short time after Michaelmas; when he was paid the whole except 6s., which the master deducted on account of the said absence, which the pauper consented to.The Court held, that the servant gained a settlement, and they thought it to be within the reason of the determination of the Islip case. There was a reasonable cause of absence, and the master ought not to have deducted any part of his wages. Rex v. St. Bartholomew, Cornhill, Cald. 48; 2 Bott, 445; 1 Nol. P. L. 403. The pauper, U. Owen, was hired for a year, on the 11th of June, 1771: in April her master told all his servants that he was going to live at Manchester, but did not know the time; and that they might look out for year's wages, and services, or stay with him until he went, as they chose; the pauper conti something over, and the servant two days after entered another service Held, a dispensation. The master became bankrupt, and the mistress discharged the nued with her master in St. B. till the 4th of June, when he paid her the whole year's wages, and half a guinea over, and that same day he left London. His going that day was quite a casual matter, and if he had remained in London, he would have continued the pauper in his service. The pauper went into a new service two days after her master left London. -Lord Mansfield, C. J. The only question is, whether the servant continued bonâ fide in her service during the whole year? To be sure there is a distinction between exceptions, from the contract originally, or subsequent dissolution and dispensation of the service; but if the case be of the latter description and bonâ fide, it can make no difference when the servant is engaged or where; or whether the service be in the same, or another occupation; she quitted her service at the desire of her master, and received half a guinea beyond her wages, as an equivalent no doubt for her board. It was accidental, and a favour to her master. Rex v. Richmond is full as strong as this, for there a new servant came into the very place. Fraud vitiates every thing; but the justice as well as reason of the thing are here with the settlement. Suppose she had come from a distant country, and had no other settlement, shall she lose her only one which she deserves so well?-Willes, Ashurst, and Buller, Js., concurred. Rex v. St. Andrew's, Holborn, 2 T. R. 627 ; 2 Bott, 330; 1 Nol. P. L. 464. M. Robinson was hired for a year, and continued in her service until within four or five days of the end of the year; when her master becoming servant, paying bankrupt, and the messengers taking possession of the house, her mistress discharged her, paying her the whole year's wages. This case was not argued, the Court being clearly of opinion that the bankruptcy of the master did not dissolve the contract of hiring without the servant's consent; and that the pauper gained a settlement. the whole year's wages: Held, a dispensation. If a mistress on account of some difference dis charge a servant, and pay her her full wages, which the servant accepts, it is a dispensation. Rex v. St. Philip, in Birmingham, 2 T. R. 624; 2 Bott, 329; 1 Nol P. L. 411. The pauper was hired for a year to E. Poole, in Powick, where she served until within eight days of the end of the term, when on account of some difference between them, she gave her mistress warning that she would leave her service at the end of the year. The mistress, on having hired another servant, by reason of some impatient behaviour of the pauper, Thirdly, Of dispensation. discharged her and paid her the full wages, which she accepted and quitted the service, and left the parish eight days before the year ended; but she said she would have served the year if her mistress would have let her.Ashurst, J. Though it be true that an agreement to put an end to the service will defeat the settlement, yet if it be not voluntary between the parties, as if a master, with a view to prevent a settlement, fraudulently turn her away, or wrongfully discharge her, this will not defeat the settlement. Now this was, I think, a wrongful act of the mistress, which was submitted to, but not agreed to, by the servant. Something should have been stated to shew that it was voluntary on her part; but it may be inferred she did not go by her own consent, for she was desirous of serving the whole year.Buller, J., thought that the warning given by the servant, and the payment of the whole year's wages by the mistress, shewed a consciousness in each that they could not dissolve the contract before the end of the year. Rex v. Hardhorn with Newton, 12 East, 51; Bott, Cont. 144; 1 Nol. P. L. 409. M. Lingard was removed from Newton with Seales to Hardhorn with Newton. Order confirmed. Case: The pauper was hired by R. Gratrise, in Hardhorn, for a year. Three weeks after the beginning of the year the pauper's master died, and the farm was continued by his widow, and two sons, George and William. About three weeks before the end of the year, the pauper fell out with George about her work, because she threw more sand upon the floor than he deemed necessary, and was by him turned out of doors, though she was willing to stay. The next day she came again for her clothes, when George paid her 47. 10s. as for her full wages. There was a dispute about the amount of her wages, George insisting that the pauper was hired for 41. 10s., and she demanding 57. 158. The pauper, however, accepted 47. 10s. and never got any thing more, though she employed an attorney for that purpose. The pauper, when she came the next day for her clothes, offered to stay to the end of the year, but George would not let her.-After argument, Lord Ellenborough, C. J., said, there must be an abiding in the service for a whole year, in order to confer a settlement; as far as lay in the pauper there was such; but she was wrongfully and forcibly turned out of doors by her master against her will, and when she returned the next day for her clothes, he gave her 47. 10s., which he said was the whole of her wages; but she did not assent to that, but demanded more, though she took what he was willing to give her in part, and offered to stay to the end of the year, maintaining her right to her full wages. She, therefore, did all she could to abide in the service, according to her contract, and did so, except so far as she was prevented by an act of force. And he distinguished between this and Rex v. Grantham. The servant having there been improperly turned out of doors by his master, in the first instance, took him at his word, and refused to return to his service, though invited by his master so to do; and when the master at last agreed to pay him his full wages, he left the service contrary to the express request of the master to stay.-Grose, J. There is no consent by the servant, and as the servant tendered herself to perform the service, that was equivalent to the performance of it in law.-Le Blanc, J., agreed, and mentioned that the pauper did not here, as in Rex v. Leigh, hire herself into another service before the end of the year, which was there held to be a dissolution of the contract. He added, her taking her clothes and what money he was willing to pay, does not shew her consent to abandon the contract, which she offered to fulfil to the end of the year.—Bayley, J., agreed. doors three weeks before the end of offering to stay to the end of the year, but carry"ing away her clothes the next day, and taking sisted was her full wages for the year, according to the agreement, though she demanded a larger the year, she Rex v. St. Mary, Lambeth, 8 T. R. 236. The pauper, on the 15th of January, 1797, hired herself to J. Serle, for a year, from the 18th of that month, at seven guineas' wages. She went into his service on the 18th, and remained until the 11th of January in the next year, when an information having been laid against her master for keeping a gaming-house, he quitted his house, and told his servants (and the pauper amongst them) that he had no longer any occasion for their services, and then paid the pauper her whole year's wages. He would have kept the pauper, but on account of his being obliged to quit his house, and the pauper was unwilling to leave his service. She then went to her sister, and did not engage herself in any other service until after the year expired, though from the time that what the son in sum. An information was laid against the keeper of a gaming house He quitted it, and he had no longer occasion for their the full year's wages: this is a dispensation. told his servants services, and paid Thirdly, Of her wages were paid, she considered herself at liberty to go where she dispensation. pleased.-Lord Kenyon, C. J. If this point were not encumbered with decisions, and we were to resort to the very words of the act of parliament, on which the question arises, I should perhaps yield to the argument of the Counsel, in support of the rule. Or if the cases cited by them proved the point for which they were cited, I should be strongly inclined to adopt them on this occasion. But it has been frequently said here, that it is of great importance that decided cases should be adhered to; and on this subject in particular I applaud the rule stare decisis. The cases cited by the counsel on both sides are nine in number; and though they approach each other very nearly, there is a line of distinction between the four (Rex v. Richmond, Bartholomew, St. Philip Birmingham, and Holborn,) that were relied upon by the one side, and the five (Rex v. Castlechurch, Gresham, Grantham, Clayhydon, and Whittlebury,) on the other. I cannot distinguish the present case from the four that were cited in support of the order; and it was decided in each of those, that it was a dispensation with the service, and not a dissolution of the contract. Perhaps I should have had some difficulty in saying, in some of those cases, that it was only a dispensation with the service; but it is sufficient to say, that those cases were so decided, and having been so determined they ought not now to be shaken. But the cases cited on the other side are distinguishable from those, "because in them the contract was dissolved by the mutual consent of both parties." The distinction between the different sets of cases is certainly a very nice one, but I think that this case must be governed by the four to which I alluded; and if this be a question of evidence, it appears that the sessions by their determination have "impliedly found that the parties did not consent to dissolve" the contract.-Grose, J. I consider the servant was wrongfully turned away. The master could continue in his house no longer, and the servant insisted on the whole year's wages, and was unwilling to leave the service. Where a master turns away his servant to prevent his gaining a settlement; it is a fraud, and will not defeat the settlement. A quitting the fraudulent, and a A person hired Eastland v. Westhorsley, 1 Stra. 526; S. C. Fortes. 216; 2 Bott, 426; A servant was hired for a year: the day before the year expired, the master told him, that to prevent his gaining a settlement in that parish, he should go away immediately, which the servant refused to do, insisting to serve out the year; whereupon the master turned him out of doors.-The Court held this to be such a fraud in the master, as should not prevent the settlement of the servant. Rex v. Frome Selwood, Burr. S. C. 565; 2 Bott, 437 1 Nol. P. L. 412. R. Stent, the husband of the pauper, was hired for a year at King's Weston, and served till within ten days of the end of it, when Stent declaring to his master that he wished not to be settled in King's Weston, asked his leave to go and visit his relations; to which the master consented. After the year was expired, Stent returned to his master, and then hired himself as a daylabourer, and as such continued with him three months. On making up their accounts, Stent allowed out of his daily wages for the days he had been absent in the preceding year. The Court held the settlement to be in King's Weston, regarding the consent of the master as fraudulent, and a mere evasion of the settlement. Rex v. Sulgrave, 2 T. R. 376; 2 Bott, 326; 1 Nol. P. L. 399, 411, 421. The pauper, D. Plester, was hired in February, to Mr. Howes, of Stuchbury, till Old Michaelmas, and served him accordingly. On the Friday before Old Michaelmas, his master asked him if he would stay again; the pauper said he would if they could agree about wages, and asked five guineas, which the master thought too much. The pauper settlement," and immediately went away, and having gone about ten yards, returned for something he had forgotten: he then met his master again, who said he would give him the five guineas, and gave him one shilling earnest. The master, while he was putting his hand into his pocket for the shilling, said, you shall go away a fortnight at Michaelmas, because of your settlement, and I will give you that fortnight to get what you can; to which the pauper agreed, and he accordingly went to his father's, and stayed a fortnight, during which time he worked for Mr. Chester, in digging sand on Howes's land, and received from Chester one shilling a-day, and once or at the year's end is paid a year's wages, it is a dispensation, and not an exception. |