Fifthly, Of dissolution.

days before the end of the year,

gave up his busi

ness and discharged the ser

vant, paying him

his full wages, and the servant took his wages, left the house, and worked with another person,

with the master's

knowledge, dur ing the twenty

eight days: Held,

a dissolution of the contract.

Where a servant, eleven weeks

before the end of his year, in order

to procure a discharge from his master, engages a man to supply his place, and hires himself to another for the remainder of

year It was held to be a dissolution.

Michaelmas, 1806, hired himself at yearly wages for a year to Hussey, of
Cookham, as a servant in husbandry, and entered upon his service at that time.
He lived with Hussey until twenty-eight days before the expiration of the
year, at which time Hussey gave up his farming business, sold his stock, and
discharged the pauper, and all the other servants in husbandry, paying them
their full wages; and he told the pauper and the other servants that they
might go where they liked. The pauper accepted his wages, took his clothes
and left Hussey's house, and worked with another person, with Hussey's
knowledge, during the twenty-eight days. Rex v. St. Bartholomew, Rex v. St.
Andrew, Holborn, and Rex v. St. Mary, Lambeth, were cited. Lord Ellen-
borough, C. J. We take it that the sessions held this to be a dispensation;
but then a question occurs, why they did so? What is to be the limit to
this doctrine of dispensation if it is to be carried thus far?
It should seem
as if the master might, at the end of a day, or a fraction of a day, if he has
no longer occasion for his servant, send him away, and thereby dispense
with the whole year's service. But is not that absurd? Where, indeed,
the relation of master and servant continues, but the master foregoes the
benefit of actual service for part of the time, that has been held a dispensa-
tion; but here is every thing which can be predicated of a dissolution of
the contract, for the master paid off and discharged the pauper with the rest
of his servants, and the pauper left the house, and engaged himself with an-
other master during the remainder of the year. I cannot but say that I am
sorry for some of the cases on this subject, which have created such an arti-
ficial system: I think that not only the decision of the sessions in this case
is unreasonable, but that several of the cases on which it professes to stand
are unreasonable also.-Le Blanc, J. Rex v. Bartholomew was under spe-
cial circumstances. Here the pauper, after quitting the service of Hussey,
worked under a distinct engagement; and though not such an engagement
as would gain him a settlement, still it was inconsistent with the conti-
nuance of his former contract.-Bayley, J. The moment the pauper quitted
the service he was to be at full liberty to contract a new relation, and he did
so.-Dampier, J. The master pays him his wages, and tells him to go whi-
ther he liked, and the pauper accepts his wages, and contracts a new rela-
tion during the time. Order of sessions quashed.

Rex v. Mildenhall, 12 East, 482; Bott, 146; 1 Nol. P. L. 399, 465. Removal from Wilcot to Mildenhall. Order confirmed. Case: The pauper, W. Dowling, at Michaelmas, 1803, agreed with J. Stratton, of Wilcot, to serve him for a twelvemonth, at 6s. per week in the winter, and 6s. 6d. in the summer, and a certain allowance besides. He went into the service at Old Michaelmas, and served his master till July, within eleven weeks of the expiration of the year. The pauper not behaving as he ought, his master and he had a dispute, in consequence of which the pauper asked his master to discharge him: but he answered he would not unless the pauper would get another man to stand in his stead. The pauper got W. Racey, to whom he agreed to give a guinea and a half out of his own pocket, to take his place, besides his wages, which were to be paid to him by Stratton. By the evidence of the pauper it appeared that when he brought Racey to his master, the master said," If this man does any otherwise than well, I can send for you, and make you serve your time out;" to which the pauper replied, "Very well." (a). On the contrary, the master stated, in evidence, that "he did not recollect having said to the pauper that he should expect him to return; that it was not his intention to have him back; and that they parted on bad terms." The guinea and a half was paid by the pauper to R. at the time he entered the service; and R. also served out the remainder of the year with Stratton, and received the wages from him for that time. The pauper during the remainder of the year hired himself as a day-labourer, and R. continued to serve S. under a new agreement till the

(a) It would seem that this fact was not credited, and not that it was immaterial; for, by Rex v. Maidstone, the

power to recal the servant seems a criterion of dispensation.

Fifthly, Of

dissolution.

end of the year.-Bayley, J., asked if there was any case where the pauper had been held to gain a settlement by hiring and service, where, after leaving his master during part of the year, he actually hired himself to another? Upon which Rex v. Goodnestone, (ante, 393), was quoted; and Lord Ellenborough then said, That was an express case of dispensation of service, and the servant might have returned within the year; and he added, that there were reasonable grounds here to warrant the conclusion which the sessions had drawn, that this was a dissolution. His Lordship also said, (in reply to the argument that the sessions had admitted illegal evidence in receiving the account of the master's intentions,)" what follows is not giving evidence of the master's intentions, but is merely stated by the master in confirmation of his accuracy in not recollecting what the pauper had stated him to have said, as if the master had said, what confirms me in supposing that no such conversation passed, is, that he had no intention to take the pauper back again. The sessions evidently understood the master as contradicting the pauper, and can we say they did wrong? Though it is said that the pauper might have returned at a day's notice, I do not think that varies the case."-Grose, J. The pauper, upon a quarrel with his master, applied for his discharge: the master refused, unless upon condition that the pauper procured another person to serve in his stead: and the pauper complied with the condition. And then the sessions, contrasting the master's evidence with the pauper's, have concluded that he was discharged, and the contract dissolved, and we cannot quarrel with that conclusion which it was competent for them to draw.-Le Blanc, J. Unless the Court saw clearly that the sessions had concluded wrongly, they would not reverse that conclusion.-Bayley, J., concurred. Order confirmed.

Rex v. Gresham, 1 T. R. 101; 2 Bott, 326; 1 Nol. P. L. 417. William Thompson hired himself for a year, at the wages of 3l., to Mr. Creemer, of Beeston Regis; he entered upon his service, and continued therein for about a quarter of a year; and upon some dispute between him and his master, his master insisted upon turning him away, and threw down 15s., which the pauper took up, and went away to his father's house, where he continued for six days, during which time he looked upon himself as a free man: the pauper then returned at the request of his master, and continued in the service to the end of the year, when he received 45s., being the remainder of his wages agreed for at the hiring.-By Lord Mansfield, C. J. The absence of a servant from his master's service is an equivocal act, and therefore may be explained by other circumstances; but if it appears that the contract has been once dissolved, it cannot be set up by a new agreement. In this case the contract was absolutely dissolved: the master insists upon turning him away, and pays him down all his wages that were due; the consent on the other side is by taking the money up: then how does he come back again? It is upon the request of the master: there is nothing by which the absence can be explained. The meaning of purging an absence is where the act itself is doubtful. See Rex v. St. Philip in Birmingham, and Rex v. Hard

horn with Newton.

Rex v. Clayhydon, 4 T. R. 100; 2 Bott. 459. The pauper agreed with W. Hodges, in Dunkeswale, for a year, at 21. 15s., and served till nine days before the end of the year, when on a Sunday morning he went away in order to get another place when his year should be up, without mentioning it to his master; he returned on the Tuesday following about six o'clock in the morning, when he asked his master what work he should go about; the master told him he might go and serve the master he had worked for the day before. He saw his master about an hour afterwards, who then paid him his wages up to that time only. No conversation passed. He then went away, and did not afterwards return: he wished to have staid out the year, but his master would not let him. The sessions quashed the order of removal from Clayhydon, being, it would seem, of opinion, that this was a service in Dunkeswale.-Lord Kenyon, C. J. It is now too late to say a constructive service will not confer a settlement, though I very much doubt whether a greater certainty on this subject would not have been attained by

that

Fifthly, of dissolution.

If a servant consent to quit, and take the wages for the time he

had served, it is a dissolution.

Settling wages

the day before

the year ended,

is a dissolution:

attending strictly to the words of the act; however, in order to preserve an uniformity of decisions, we must adopt the construction which has so frequently been put upon it. But I do not know that it ever has been decided that a settlement was obtained, unless by construction the relation between master and servant continued during the whole year. Rex v. Islip, and Rex v. Maddington, (ante, pp. 385 & 388,) which have been relied on, do not govern the present. In the former, the servant did not return until after the expiration of the year, and the facts of that case left the question open, whether or not the relation between the parties subsisted during the whole year? The Court there thought that the master improperly refused his consent, and that though the servant was not in the actual discharge of his duty in his master's house, yet, as he was liable to be called into his master's service during the remainder of the year, that he was constructively in that service down to the end of the year. But the present case differs from that; because, during the continuance of a year, a further act was done; when the servant returned after his absence, the master not only found fault with him, but refused to take him again into his service; it is true that the servant wished to continue, but both parties did that which put an end to the contract; the one paid, and the other received the wages. After that period the servant was no longer under the control of the master. In Rex v. Islip, the servant was under the master's control during the whole year: he was liable to be called into the master's service whenever the master thought proper; but here the relation between the master and servant was rescinded before the end of the year, by the act of both parties; then it is impossible to say that the pauper was constructively in the service after that time. So in the case of Rex v. Maddington, though the servant left the service three weeks before the end of the year, and went to his friend, because he was not able to perform his service, yet there was no act done during the year to put an end to the contract: afterwards, indeed, when the master paid the wages, he deducted a part of them; but he could not by an act ex post facto deprive the servant of the benefit to which he was before entitled. But Rex v. Gresham is extremely like the present; there the Court held, that by the act of accepting the wages, the servant agreed to put an end to the contract. I am therefore of opinion that there could be no constructive service in this case, when the parties themselves, by mutual consent, put an end to the relation of master and servant within the year.-Grose, J. It is clear that at the time the wages were paid, both parties consented to put an end to the contract, for it is stated no conversation passed at the time; and though the servant may have wished to stay till the end of his year, he did not communicate that wish to his master. The other fact stated, that he accepted a sum short of the whole year's wages, which shews that it was understood by both that he intended to dissolve the contract. Order of sessions quashed.

Rex v. Seagrave, Cald. 247; 2 Bott, 321; 1 Nol. P. L. 414, 426. The pauper was hired from Old Martinmas to Old Martinmas. On September 25th he told his master he was going to be married; his master made no answer; he went on Saturday and was married: upon his return, he had no intention of quitting his service; the master said he would not employ him any longer; he said he would go if he would pay him his year's wages; the master refused, and said he would only pay him for the time he had served, and asked him if he would take his wages, or go before a justice? his master set out about his business to his farm, when the pauper called him back, and said he would take the money for the time he had served, and that he parted with his own consent.—The Court thought that the last words of the case were so clear and unequivocal a dissolution of the contract, that they would not permit it to be argued.

Rex v. Roxby, 10 B. & C. 51. Order of removal of R. Farmery, &c. from Roxby to Winterton, quashed. Case: The pauper was hired before Old May day, 1819, (13th of May,) to serve J. B. in Winterton, from the the pauper by his said Old May day to Old May day, 1820, as a servant in husbandry, at He served till the 11th of May, 1820, when, wishing 16 pounds' wages. to visit his friends fifteen miles distant, and to attend some statutes on the 12th of May on the way there, and avoid returning back to his master, he

master's permis

sion slept that

night at his

house,

The

requested his master's permission to go altogether: and they settled the
pauper's wages, and part was deducted for the time he had to serve.
pauper slept at his master's house, with his permission, on the evening of
the 11th of May, and finally left his master's on the 11th. 1820 was leap-
year. The sessions considered this a dissolution of the contract.-Lord
Tenterden. The question whether this was a dissolution or dispensation,
was for the sessions, and they have decided it. I should not be disposed to
interfere with their judgment, even if I thought it was wrong, which I do not.
Order of sessions confirmed. As to the other point in this case, see ante, 359.
Rex v. Grantham, 3 T. R. 754; 2 Bott, 331; 1 Nol. P. L. 394, 437, 444.
Read, the pauper, was hired a fortnight after Martinmas, 1784, by N.
Leadenham, of Allington, for a year, and entered upon his service, and con-
tinued about six weeks, when, with his master's leave, he went to assist his
father, who was ill, where he stayed thirteen weeks; when he returned, in
consequence of a warrant obtained against him by his master, into his service
under the original contract, and continued therein until Sunday evening,
three days before the end of the year, when his master came home in liquor
and abused him, threw him down, and afterwards turned him out of doors.
The pauper slept at his father's that night, and the next morning his master
would have had him return to his service, and stay out the year, but he
refused to go again, and threatened, that unless he paid him the whole of his
wages, he would complain of the ill usage he had received to a magistrate.
The master then agreed to pay him his full year's wages, deducting for the
thirteen weeks he was with his father; which he took and then left his ser-
vice, contrary to the express request of his master.-Lord Kenyon, C. J. The
circumstance stated in the case, that this transaction happened only three
days before the end of the year, might have led us at first to suppose there
was some fraud intended on the part of the master; but none is stated. It
has been rightly said, that an actual service is not necessary, for that a con-
structive service is sufficient. But the question here is, Whether we can say
that there was a constructive service for the whole year? and whether the
relation of master and servant subsisted during that time? If the absence
be for a reasonable cause, it is immaterial whether that absence be at the
beginning, the middle, or at the end of the year. And it has been argued
that this was an absence for a reasonable cause, on account of the ill trea:-
ment of the master; but here there was no animus revertendi, which distin-
guishes the present from the class of cases alluded to. When the servant
was ill used, though he could not have left the service without his master's
consent, or without applying to a magistrate to be discharged on that account,
yet the master did consent to the servant's leaving him, and both parties
agreed to put an end to the contract. If the master had afterwards com-
plained of the pauper's not serving him for those three days, the latter might
have answered him by saying that the contract was dissolved. And if its being
absolutely put an end to only three days before the expiration of the year will
not defeat the settlement, what line can be drawn with respect to the time of the
service which is necessary to give a settlement. If one day or three days may
be dispensed with, any other time may be equally so. In some cases, indeed,
where it has been equivocal what the transaction really was, and the servant
has paused and considered whether he would absolutely quit the service or
not, other circumstances have been admitted to explain the absence; but
here was no suspense, no locus pænitentiæ; for both master and servant
agreed to put an end to the service.—Ashurst, J. Though the master at
length consented to give the servant his full wages, that was not intended to
operate as a dispensation with the remainder of the service, but as a redemp.
tion of his credit.

Rex v. Upwell, 7 T. R. 438; 2 Bott, 464. Sarah Brown, the pauper, was hired at Michaelmas for a year, and continued in the service until within fifteen days before the next Michaelmas, when her master kicked and beat her: she complained to her father of this ill treatment, and required her master to dismiss her from his service, under a threat of applying to a magistrate for redress; her master then paid her the whole of her wages, and told her she might serve the remainder of the year, but she refused so to do,

Fifthly, Of

dissolution.

If a servant be
turned out of
ter, and refuse to
return, and re-

doors by his mas

ceive his full wages and de

part contrary to

the express request of his mas

ter, it is a dissolution.

Where upon the master ill-treatshe requires to be dismissed, and he

ing the servant

pays her the year's wages, and tells her she may serve the

dissolution.

Fifthly, Of and immediately left the service. When this case was called on, the Court said there was no question in it, for it must be considered as an agreement by both parties to put an end to the contract several days before the end of the year, and consequently that the pauper had gained no settlement, and that Rex v. Grantham was decisive of the present.

rest of her time,

but she refuses, it is a dissolution.

A master refused

to take his servant back, and

her wages, and

offering herself to
others as a ser
vant, it was
held a dissolu-
tion.

Rex v. Corsham, 2 East, 303; 2 Bott, 346; 1 Nol. P. L. 444. Removal from Kington St. Michael to Corsham. Order confirmed. Case: The pauper's husband was hired by Mr. Dalmer of Corsham, at four guineas per annum, with whom he continued to serve till within a fortnight or three weeks of the expiration of the year, when upon a dispute between him and his master, he, in consequence of his master's kicking him, would not stay, but went to his father's house. In the following week, and before the end of the year, he returned with his father to Dalmer's house, and received the whole of his wages, and 2s. 6d. over for himself: his master asked him to stay, but he refused, and went back to his father's house.-Lord Ellenborough, C. J. The cases of Rex v. Grantham, and Rex v. Upwell, have decided this. In both, there was a payment by the master of the whole year's wages, and a departure from the service before the end of the year against the will of the master; and in both the Court held, no settlement was gained. There is nothing material to distinguish this case from those, and it is better to abide by them. It is indeed a question of fact, but of fact mixed with law, and the circumstances are stated that we may draw the proper legal conclusion. Grose, J. The payment of the whole year's wages was to prevent an action, and argues no consent to dispense with the service.

Rex v. King's Pyon, 4 East. 351; 2 Bott, 347. The pauper, Alice Wheale, was hired to Mr. Davies of King's Pyon, to serve him from Old the servant took May-day, 1800, to Old May-day following. At the end of eight months she had a dispute with her master, about some burnt stockings, and he dismissed her from his service. She applied to a magistrate; and instances of neglect were stated, but denied; she was desirous of continuing in her service, but her master refused; and the magistrate ordered her master to take her back into his service, or pay her the whole of her wages; he refused to take her again, but paid her the whole of her money, but not some wool which he had stipulated to give her as part of her wages, if she behaved well. After receiving her wages, she offered herself as a servant to several persons. The sessions thought this was a dispensation.-Per Lord Ellenborough, C. J. We are not called upon to say, whether the magistrate had or had not a right to discharge the servant from her service; it is enough that he proposed an option to the master to take the servant back, or pay her the whole of her wages. The master refused to take her back, but agreed to pay the whole wages, and did pay them; and the servant shewed her assent to the dissolution of the contract by taking the wages and offering her services to other persons. Both parties gave the magistrate a power of dissolving the contract, by shewing their assent to what he directed in that respect. Then, after all this, could the master or servant have maintained an action against each other, the one for not performing the remainder of the service, the other for not employing her during that time? This is the true question to be considered. "I should not wish to carry the idea of dispensation further than it has already been carried, which seems to me to be stretched as far as ingenuity could go upon the false idea that a servant has a right to acquire in gaining a settlement." I do not mean to disturb any of the cases which have been already decided; but I am not inclined to carry the decisions further still from the plain words of the act of 8 & 9 W. III. c. 30.-Lawrence, J. Here is nothing like an abiding in the service for a year. He then referred to Lord Kenyon's judgment in Rex v. Thistleton, and Rex v. St. Peter's Mancroft, and added; "If the pauper be absent with the concurrence of the master, it is a dispensation; but if the master cannot resume the right to the pauper's service, it is a dissolution." -Le Blanc, J., agreed.

Master consents to servant's leav. ing his service

Rev v.
Maidstone, T. 50 Geo. III.; 12 East, 550; 1 Nol. P. L. 332, 414.
Removal of the wife of G. Langridge, who had deserted her, from Maidstone