whole year's wages Held a dissolution. that the wages should be ten guineas for the year, and a guinea for tea, Fifthly, Of with liberty of parting at a month's wages or a month's warning. She then dissolution. went to work, and continued in Mr. P.'s service until Old Michaelmas-day pleted her year following. About five weeks before that time she gave her mistress notice by one week, but that she should quit her service at the next Old Michaelmas-day. On Old she received the Michaelmas-day, 1803, the pauper came to her mistress to receive her wages, who paid her her whole year's wages and the guinea for tea, but told her she wanted a week of serving out her year. The pauper said she was willing to stay out another week; but the mistress replied that it did not signify, as she had got another servant in her place, who was then in the house (which in fact she was). She then left the house, and never returned into the service afterwards.-Lord Ellenborough, C. J. The case expressly states that the mother made no absolute agreement for her daughter. The daughter arrived at Rushall, about a week after Old Michaelmas-day, when upon Mr. P.'s application to her to know if she liked to come into his service, she went there, and then it was, as the case states, for the first time agreed between Mr. P. and her, &c., with liberty (which was not before mentioned) of parting at a month's wages or a month's warning; this was on the 18th of October. Then about five weeks before Old Michaelmas-day the pauper gave her mistress notice to quit at Old Michaelmas-day. The mistress could not object to receive the notice, and, therefore, looked out for another servant; but when the pauper went to receive her wages, the mistress paid her the whole year's wages, but told her that she wanted a week of serving out the year. The pauper then said, indeed, that she was willing to stay another week; but as the mistress, in consequence of the warning which the pauper had given her, and which she had accepted, had provided herself with another servant, and did not want two of them, she told the pauper it did not signify, as she had got another servant in her place, on which the pauper left the house. There can be no doubt upon this statement, that both parties agreed to put an end to the service before the end of the year. The servant gave above a month's warning to quit at Old Michaelmas, which she had a right to do, and the mistress accepted the warning, and both parties acted upon it. And this, it appears, was in fact before the end of the year, whatever the servant might have supposed when she gave the warning. Now" the rule," which the Court has laid down as the test, whether the circumstances attending the departure of a servant before the end of a year amount to a dissolution of the contract, or only to a dispensation of the service, is "whether the master has the power afterwards of compelling the continuance of the service; if he have not, there is an end of the contract; if he have, but choose to dispense with it, it is a dispensation." If, after this, any person had harboured the servant when the mistress desired her services, could she have maintained an action for it? Certainly not; and that is a fair test that the relation of master and servant had ceased to exist.-Le Blanc, J., added, "the mistress accepted the notice not as being to quit at the end of the year, but as a month's warning. Both orders quashed. Rex v. Bottesford, 4 B. & C. 84; 6 D. & R.99; 3 D. & R. Mag. Ca. 24. J. Whitehead was removed from Bottesford to East Bridgeford. Order quashed. Case: The pauper was hired at the Bingham statutes, which happened about three weeks before Martinmas, 1818, to serve Huskisson of East Bridgeford as a servant in husbandry, for 4l., and received 1s. earnest; but no time was mentioned. He was to go into the service about a week after Martinmas, at the regular time for husbandry servants to enter their places. He entered into the service a week after Martinmas, 1818; on the same day his master said to him, "It is not the custom to hire servants in this parish for more than fifty-one weeks, which I forgot to mention to you at the time I hired you at Bingham statutes, and therefore, if you have no objection, I must hire you afresh for fifty-one weeks, and give you another shilling for an earnest," when the pauper accepted of such earnest. The pauper was never out of Huskisson's service from the first moment he came upon the premises, and remained therein until the day after Martinmas, 1819, when he quitted his place, along with the other servants, having first Rule for deciding the fact of disso lution. pounds' wages, was not mention. wards, as agreed, The pauper was hired at four but the duration of the service ed; when he went into the service afterthe master told him he had forgot to mention, that it was not the custom to hire for more than fifty-one weeks, and that he must therefore hire him again for that time, to which the pauper Fifthly, Of dissolution. assented, and received fresh earnest. He remained in the received the four of the original If the master, at the servant's request, give him leave to go to another service, before the end of the year, though he pay him the full wages, it is nevertheless a dissolution. received his wages of 41.-Abbott, C. J. I think the sessions came to the right conclusion. I agree that there was originally a contract operating as a hiring for a year, but the service under it was a service commencing a week after Martinmas. It is stated that the pauper was hired three weeks before, but he was to go into the service a week after Martinmas. There is nothing to show that the service was to commence sooner. Certainly it was not to commence on the day the contract was made, for that was entered into three weeks before. If then it was a hiring for a year, the service to commence the week after Martinmas, it is clear that there has not been a service for a year. Did then the master dispense with the service for the last week, or was the original contract rescinded? The case states, that on the same day when the servant arrived at his master's house, the latter said to him, "It is not the custom to hire servants in this parish for more than fifty-one weeks, which I forgot to mention to you, and therefore, if you have no objection, I must hire you afresh for fifty-one weeks, and give you another shilling for earnest;" when the pauper accepted the earnest. I consider that as a dissolution of the original contract, and the substitution of another. If this was a fraud, although I have great difficulty in saying what is a fraudulent contract in this respect,) the sessions ought to have found fraud. They have not done so. I, perhaps, should not have interfered to set aside the decision of the sessions, if they had drawn a contrary conclusion, but I should not have been so well satisfied with it.—Bayley, J. I agree that there may be a dispensation at any period of the year; but whether there is a dispensation or not, is a question of fact for the sessions to decide. If there had been a hiring here for a year, to commence at Martinmas, and the contract had not been dissolved by the express consent of both parties, then the sessions might have drawn a conclusion different from what they have drawn. Suppose this to have been a hiring for a year, that might be dissolved. But still that was for the sessions to decide. If there was fraud in the case, that was for their decision. My own judgment is, that the sessions have drawn the right conclusion from the facts stated.-Holroyd, J. I think it cannot be taken, from the manner in which the case is stated, that this was originally a hiring from Martinmas. The latter part of the case removes all the doubt I had entertained as to whether this was to be considered as a hiring for a year, and a dispensation of the first week's service; for what afterwards takes place must be considered as a dissolution of the original contract with the consent of both parties.-Littledale, J., concurred. Rex v. Thistleton, 6 T. R. 185; 2 Bott, 339; 1 Nol. P. L. 420, 428, 463. The pauper was hired to Mr. Raworth, of Knawston, from Martinmas to Martinmas, and entered upon the service. Before the end of the year he went to Billesden statutes, and hired himself to Mr. Humphreys, of Billesden, to enter into his service on the 19th of October, if Mr. R. would let him come then, and if he was refused, he was then to come at the end of his year. The next day the pauper asked his master to let him go, who said he could not spare him; he must get a new servant first: some time after he hired a new servant, and then said, "I have got a new servant, you may go now; I have not work for you both." The master then paid him his whole wages, and he went away. This was about a fortnight before Martinmas, and he entered into his new service in three days.-Lord Kenyon, C. J. The distinction between the different cases upon this subject seems to be this; if the pauper be absent from the service with the concurrence, remaining however subject to the control, of the master, he may acquire a settlement, because this only amounts to a dispensation with his service; but if the master has once parted with his control over the servant, there no settlement is gained; and the receiving of the whole year's wages does not make any difference. In this case the master had given up all control over the servant; he himself was instrumental in enabling the servant to make another contract with another master; and from what passed between those parties, it was evidently the intention of both that the pauper should become sui juris, and should be enabled to contract with another master. The cases, in which it has been determined that a settlement was gained, notwithstanding the servant was not in actual service during the whole year, proceeded on artificial reasoning, on a supposition that the relation of master and servant continued throughout the year. But that idea is inconsistent with what was done in this case; for if that relation had subsisted here, the master might have insisted on the pauper's returning into his service after the wages were paid: but he agreed not to insist on that when he parted with the servant. It is miscalling this a dispensation with the service; for upon the agreement to part, the pauper's liability to serve the first master ceased.-Grose J. If we were to say that the service for the latter part of the year was service performed under the first master, we should determine that he was serving two masters at the same time, which would be contrary to the statute. mas Rex v. Great Chilton, 5 T. R. 672; 2 Bott, 268; 1 Nol. P. L. 415, 447. The pauper was hired at Martinmas, by W. Grenwell, of Great Chilton, as a servant in husbandry for a year, commencing from Martinmas, (11th Nov.) his wages were to be about 87. with meat and lodging, in his master's house. He entered upon his service at Martinmas, and resided in his ter's house. In January following he married, but continued as a menial servant with Grenwell until May-day following. Some days before Mayday, Grenwell and he agreed that he with his wife should go as a hind to reside on and manage another farm which Grenwell had in the same township; this second agreement was for a year from that May-day, and he was to have 5s. a week, the house to live in rent-free, and some other trifling perquisites, as persons in that capacity usually have: He served as a hind two years from that May-day, being all that time a married man.-Lord Kenyon, C. J. This case appears to me not free from difficulty and doubt; but upon the whole, I think that the pauper gained a settlement in Great Chilton. To Rex v. St. Giles's, Reading, I perfectly accede, but that cannot decide the present case. There the pauper was hired generally, which the law construes to be a hiring for a year, at a time when it was competent to him to acquire a settlement by hiring and service; he was then unmarried: when the year expired, there was an end of the contract; by continuing in service after that time, the Court would infer a second hiring for another year: but at the end of the first year he was a married man, and was disabled from gaining a settlement by a service under a contract entered into at that time. But in the present case the pauper was unmarried when he made the first agreement; and though he married in the course of that year, it has been very properly admitted that that alone did not defeat his settlement, if he served out the remainder of the year under the original agreement made before his marriage But it has been contended that that contract was dissolved. I admit, that if there were an end of the relation of master and servant when the second agreement was made, the pauper could not gain a settlement in Great Chilton, but I do not think that that was the case. An alteration, indeed, in the man's situation took place: perhaps it was more convenient for him to live with his wife in a separate house than to continue to live in his master's family, and therefore it was agreed that he should go to another farm of his master's in the same township. But that alone did not put an end to the former contract. If a master, who had kept house, and an establishment of servants, chose to break up housekeeping in the middle of the year, and to put his servants on board wages, that would not put an end to the relation between the master and his servants, nor defeat the settlements of the latter. Then it was objected that the servant's employment after his marriage was different from that under the original contract; but I cannot discover much difference, for under both agreements he was to serve in husbandry. And even if the nature of the service were varied, that would not defeat his settlement. A footman who was converted into a butler, would gain a settlement by completing a year's service, notwithstanding such a change in his station. In this case also there was a prolongation of the time of service, and he was to continue half a year beyond the period originally agreed upon; there was also an alteration of wages adapted to his change of situation: but I do not think that either of these circumstances affects the case. The whole question turns on this, whether or not there was a dissolution of the former contract? for if there were, the second agreement was made at a time when by law he was Fifthly, Of dissolution. disabled from gaining a settlement by hiring and service. I speak with great diffidence on this case, understanding that the majority of the Court are against my opinion. But it strikes me that there was no end of the relation of master and servant, even for a moment, during the whole time the latter continued in the service; and that as the first contract was not dissolved by the subsequent alteration of situation, the pauper gained a settlement in Great Chilton by serving more than a year under a yearly hiring entered into when he was an unmarried man. Rex v. Alton warrants this opinion, though that indeed appears to be a more doubtful case than the present; because there, under the second agreement, the pauper was to work by the piece, which seems to imply a liberty either to work or not, as he pleased.-Ashhurst, J. At first I was inclined to think that the first contract was not absolutely dissolved, and that the second was merely a continuation and modification of it: but on further consideration, I am of opinion that the first contract was entirely put an end to by the second. This is very distinguishable from Rex v. Alton, for there the principal alteration was in the terms of the contract respecting wages; the servant was to be paid by the piece instead of by the year. Whereas in this case there was a variation also in other circumstances. Under the first contract the pauper was to live in his master's house as part of his family, and was to receive the yearly wages of 81. Under the new contract the terms were materially altered the servant was to go into another farm of his master's, he was to receive weekly wages, and was to continue in service for a year from that time. After the second contract, if the master had wished to compel the servant to return to his own house, and to live in his family at the former wages, the latter might have resisted on the ground of the second contract, which shews that the former one was abandoned, and that the pauper was not serving under it. Then if the second were a new contract, distinct from the former one, the services under the two cannot be coupled for the purpose of giving the pauper a settlement, because at the time of entering into the second he was married. -Grose, J. I agree to the Alton case; and here, if the original agreement had continued in force, the pauper would have gained a settlement by serving a year under it. But the question is, Whether or not there was a dissolution of the service, and of the first contract? I cannot say that the service under the second contract was a service under the first, because, on comparing the two contracts together, it appears that there is a difference in the duration of the term, in the kind of service, and in the wages, the former of which is most material; and where two agreements are totally inconsistent, the second must operate as a dissolution of the first. By the first contract the pauper was hired for a year, to commence 'at Martinmas ; he served under that till May following, when he made another agreement with his master for another year, to commence at that day. Suppose at the end of the first year the servant had said that he would no longer continue in his master's service, for that he had been serving under the first agreement only, and was not bound to serve under the second; there is no doubt but that the master might have compelled him to serve until the May following, by virtue of the second agreement. This shows that the second agreement put an end to the first. It is not necessary to lay so much stress on the two other instances of difference between the two contracts, the kind of service, and the quantum of wages; I rely most on the alteration of the term of service, which I think is decisive.— Lawrence, J. It seems to me that in those cases no question arises respecting the benefit of any particular settlement gained by the pauper, but that the question must be considered on the facts as between the two contending parishes, because if the pauper be not settled in one, the burthen of maintaining him and his family falls on the other; and therefore there can be no bias in favour of one or the other settlement. In order to gain a settlement by hiring and service, there must be a hiring for a year, and a service for a year; and the service for the last forty days must be performed under a contract of hiring entered into when the pauper was unmarried. Then the question in the present case is, whether or not there was a dissolution of the first contract? and not whether there was a discontinuance of the service; for in Rex v. St. Giles's, Reading, the pauper continued all the time in the master's service; and there is a difference in this respect, whether the contract be put an end to by flux of time, or by agreement. The only way in which it can be considered that the pauper gained a settlement in Great Chilton, is by treating the second as a prolongation of the original contract; and it has been argued that by the second agreement the pauper was to serve until the end of the then current year, and for six months longer. But it strikes me that this is not the fair construction of the second agreement; at the end of the first six months' service, the pauper did not agree to serve for six months after the end of that year, but for a year to commence at the time of the second agreement. On the whole, it appears to me that the second contract was distinct from the former one, and put an end to it, because the second was inconsistent with it; so that the pauper gained no settlement in Great Chilton, because the service for the last forty days was not performed under a yearly hiring entered into when he was unmarried. Both orders quashed. Fifthly, Of dissolution. not a dissolution. Rex v. Overnorton, E. 52 Geo. III.; 15 East, 347; 1 Nol. P. L. 367, Change of wages 457. Order of removal from Overnorton to Great Rollright, discharged. Case: On Monday after Michaelmas-day, the 17th of October, 1803, W. Bickerstaffe, the pauper, was hired to serve Jolly of Overnorton, for the year, at 9s. 6d. per week. He served under that hiring, and received the 9s. 6d. every week, either on the Saturday or the Monday following, till the 13th of October, on which day, for the last time, he received 9s. 6d. Three or four days previous to the 13th of October, he had a conversation with his master, and agreed to serve him for another year, at 10s. a-week. On the 20th of October, he received 10s., concerning which no explanation took place at the time, but the pauper said, in evidence, that he received it under the new hiring. He continued in the service all that year, and seven weeks after. He was married eight weeks after the first hiring. Mackaness contended that the hiring at so much a-week for the year, must mean the current year, i. e. 1803. [But the Court, said, that the justices were to determine what year was meant, and they had considered that it was for the space of a year from the hiring.] He then contended that the first hiring was put an end to on the 13th of October before that year was expired, and then the pauper, being married, could not gain a settlement under the second hiring. -Grose, J. Whatever the decisions might originally have been upon the construction of the statute, the rule of law is now inveterate, that if the justices find a hiring for a year, and a continued service for a year, though not under the same hiring, that is decisive to give a settlement.Le Blanc, J. The sessions would have done better not to have found any special case, for strictly speaking it is a question of fact, whether the first contract was intended to be for the space of a year, or only to the end of the current year. But if they thought it was only to enure to the end of the current year, they would have come to a different decision. But however equivocal the expression might have been at first, when the master and servant, on the 13th of October in the following year, spoke of a contract for another year, that shewed that they had originally intended a yearly hiring. Then there was clearly a continued service of the same description for a year. Bayley, J. The sessions were the proper judges to draw the conclusion as to whether the original contract was dissolved before the end of the year; and I cannot say they have done wrong. There was no reason for dissolving it. Order of sessions confirmed. (a) Rex v. Bray. 3 M. & S. 20; 1 Nol. P. L. 422. Removal from Bray to The master of a Great Marlow, order quashed. Case: John Butler, the pauper, at Old (a) This case has been confirmed, but the true principle is that there was no dissolution of the first contract, and that the pauper served a year, i. e. till the 17th of October, under the first hiring.-Grose, J.'s, observation cannot be supported in reference to this case, for yearly servant, twenty-eight |