Fifthly, Of dissolution.

one day before

the end of his year, pays him and the servant takes another dissolution. place: Held, a

his full wages,

to Thurnham. Order quashed. Case: The pauper's husband, at Michaelmas, 1797, hired himself at twelve guineas for a year to S. T. of Thurnham, to serve him as a waggoner: and entered upon his service, and continued in it till October 8, 1798, on which day he was married to the pauper, and his master consented to his leaving the service, and paid him his wages. Nothing was subtracted on account of his leaving his master on the 8th of October. On the 9th of October, he hired himself to and went into the service of one Stone. Michaelmas-day fell on the 10th of October in the years 1797 and 1798.-Lord Ellenborough, during the argument, said, "The case states that the master consented to the servant leaving his service; then upon that statement can we say there is a dispensation?" He afterwards added, this is clearly a case of dissolution; and that he would not extend the doctrine of dispensation any further than it had already gone. That here “ the master consented to his servant's leaving his service," and that there could not be a stronger plea than this by the servant in an action against him by his master for deserting his service. Then he said, though the opinion of parties is not to be pressed, yet their acts are material, upon the question of dispensation or dissolution. And here it is stated, that after L. had left his first master's service on the 8th, he went on the following day, and which was the day before Michaelmas-day, and hired himself into the service of a new master. Here, then, is an express renunciation on the part of the master of his rights over the servant, two days before the end of the year; and the servant's assent to this is signified by his departure from the service, and contracting the next day an obligation to another master, into whose service he entered immediately, subject to all the rights of the new master over his service. How then, can I say in the words of the statute of W., that there was a continuing and abiding by the servant in the same service during the space of one whole year, when it appears that that period of service was abridged by the last two days of the year?-Grose, J., agreed.-Le Blanc, J. I think the sessions would have been well founded in finding as a fact, that this was a dispensation of the service on the part of the master, and not a dissolution of the contract; for, according to the cases, it is always a question for the sessions to decide, whether the consent of the master to the servant's leaving his service a few days before the end of the year, for a particular purpose, but paying him his whole year's wages, be a dispensation of the service for the remainder of the year, or a dissolution of the contract? Here the servant wanted to marry, and one entire day before the end of the year the master gave him leave to marry and go away from his service. It was a fair and reasonable conclusion to draw, that if the servant wished to go away one day before the end of his service for the purpose of marrying, the master would have no objection to dispense with his service, and give him a holiday for one day for the service would have ended on the 9th. But the sessions not choosing to draw this conclusion themselves, which I think they might have done, send the case to us upon the dry facts stated, and have not found that the master did consent to give his servant a holiday, and to dispense with his service for the remaining day of the year, but merely state as a fact, that the master consented to his leaving his service. Under these circumstances I cannot say that the sessions have done wrong, though I think they might have drawn a different conclusion.-Bayley, J., said, The sessions had done right. In order to constitute a case of dispensation, I think the master should have power to recal the servant to his service all through the year; but where the master agrees generally to let the servant go away from his service, without reserving to himself the right of recalling him, throughout the whole year, I think that puts an end to the contract of service altogether.

Rex v. Leigh, 7 East, 539; 1 Nol. P. L. 420, 433. John Brazier hired himself on the 31st March, 1795, as a servant in husbandry for a year to S. Jones, of Lulsley, for 6l. 10s. He resided at L. in J's service till March 25th, 1796, upon which day, by his master's leave, he went to the mop, a meeting for hiring servants, to seek a new service for the ensuing year. He returned to his master's at three o'clock in the morning of the 26th of

March, with some ribbons in his hat. In the course of that morning his

The master insisting upon it,

the servant left

his master's house, and after

wards asks a magistrate's order to be received again, or

paid his whole

Fifthly, Of dissolution.

wages, and afterwards enters another service,

master came to him, and observed, "He supposed masters were scarce at the mop, and that he had enlisted for a soldier, and told the pauper, he should stop no longer in his service." The pauper told his master he had not But enlisted, (which was the fact,) and that he wished to stop his year out. the master said he would not keep the pauper any longer in his service, and it is a dissolution. at the same time offered the pauper something less than 67. 10s. as wages, which he refused to accept. The pauper said he would have accepted the full year's wages, if then tendered to him by his master; but that he had rather have staid out his year. The pauper left his master's house immediately in consequence, and never returned to it. On the 27th of March a summons having been taken out by the pauper, he and his master appeared before a justice, and the pauper applied to him to direct his master either to receive him into his service for the remainder of the year, or to pay him his whole year's wages; the magistrate verbally directed 2s. 6d. to be deducted from the year's wages and retained by the master. On the same day the pauper hired himself to and went into the service of a Mr. Smith. About a week after, he went to Jones, for his wages, who paid the full sum of 67. 10s. Jones some days after applied for a return of the half-crown directed by the magistrate to be deducted; but it was never returned to him.—Lord Ellenborough, C. J. How can there be said to have been a constant refusal of the servant to put an end to the contract, when he actually entered into another service before the time when his first contract would have expired. That is an insuperable difficulty. His not receiving his wages before the year was out did not vary the case, for he would have received them at any time, if offered. Rex v. Pyon is almost in terms the same.-Le Blanc, J., added, If there was any fraud the magistrate must have been party to it.

Discharge by a justice.

A female servant

may be discharg

ed by her master for being preg

nant, and thereby

loses her settlement.

Rex v. North Basham, 2 Bott, 323; Cald. 566; 1 Nol. P. L. 412, 413, 431. The pauper, in order to avoid a settlement in East Basham, having three days and a half before the end of the year married a female servant big with child by him, went with his master before a justice, to be by him discharged from his service. The master was willing that the pauper should be settled in his parish, and said so before the justice; and the justice, after hearing both parties, discharged the pauper from his service. The master paid him his wages, all but for the three days and a half. And Lord Mansfield, C. J., said, This was a discharge before a justice, and it certainly was not fraudulent on the part of the master, for he had no objection to the settlement. It was a solemn discharge by the consent of both parties, and as such, a dissolution.

Rex v. Brampton, Cald. 11; 2 Bott, 444; 1 Nol. P. L. 385, 435. Hannah Wright was removed from Ashover to Brampton. Order confirmed. Case: The pauper hired herself to Mr. Langsdon for a year, and served till within three weeks of the end of the year, when her master discovering her to be with child, turned her away, and paid her her year's wages, and half-acrown over; whereupon she went to her father's at Ashover, from whence she was removed; she was willing to have stayed her year out if she might; but that it was not material to her, as she had received her whole year's wages, and not being half gone with child, she hoped she could have done her work to the end of the year. The case having been argued.-Lord Mansfield, C. J., said, the 8 & 9 W. III. c. 30, is an explanatory law, and must not be carried beyond the words by construction. It declares that there must be a hiring for a year, and a continuance for a year in that service to gain a settlement. With respect to the hiring in conformity to the nature and object of the act, the Court has been critical and exact; but service, from the nature of the thing, admits often of questions upon the circumstances; as, whether the absence was with leave, from sickness, &c. But these questions have always been brought to this point, whether the contract was put an end to within the year? This cannot be done by dismission of the servant without good and sufficient cause. In Rex v. Castlechurch, there was a discontinuance by agreement, and the contract therefore determined; in such case the payment of the full wages, which might be mere benevolence, could made no difference. The question then is, is this contruct dissolved within the year? The answer depends upon

this, Has the master done right or wrong in discharging his servant for this cause? I think he did not do wrong. The marginal note cited from 18 Vin. Abr. 459, whatever degree of authority it may be entitled to, is well warranted in principle. If the master agrees to the contract's going on, the overseers, it is true, shall not take her away because she is with child; but shall the master therefore be bound to keep her in his house? To do so would be contra bonos mores; and, in a family where there are young persons, both scandalous and dangerous. Where a servant's absence is said to be purged (which is an improper expresssion) by receiving him again, the receiving only explains and shews the nature of the absence; the consequence of it indeed is, that such reception must generally be considered as amounting to a dispensation, and thereby subjects the master to the payment of the whole wages. But the effect of a positive act of the master, i. e. the dismission of his servant under a criminal charge, shall never be done away by an implication arising from the payment of the whole wages.-Willes, J. This case differs from Rex v. Richmond, nor is it like Rex v. Islip, where the cause of the discharge was not reasonable. Here, if the master had daughters, it would not be fit that he should keep such a servant; though I think he could not avail himself of the authority of a magistrate; the jurisdiction of the justices being confined to cases in husbandry-Ashhurst, J. Same opinion. Orders affirmed. Rex v. Marlborough, 2 Bott, 423, is to the same effect.

In Rex v. Welford, 2 Bott, 446; 1 Nol. P. L. 439; where the like decision was made, it is added that the pauper, a man-servant, could not be discharged from his service, on account of a supposed criminal intimacy with a female servant in the same family. See tit. Servants, Vol. 5.

Rex v. Westmeon, Cald. 129; 2 Bott, 447; 1 Nol. P. L. 440. Robert White was hired on 11th October, 1779, to John Gibbs, for a year; he entered on the same day, and continued in his service till the 6th October following, when he was apprehended by a warrant, being charged with being the father of a bastard child, then six months old: he was carried to an inn, and kept in custody by the parish officers till the 10th October: his master, on 6th October, settled with him at the inn, saying, that he might not see him again, and deducted 1s. out of his wages, on account of his not serving the whole year; "though he said he had no objection to the pauper's gaining a settlement, yet perhaps the other farmers might:" he did not in any other manner assent to or dissent from the pauper's absence: nor did the pauper, after his being so taken, return to his said service.-Lord Mansfield, C. J. It is not necessary to enter into the question how far this is a crime, because the master has not discharged the pauper upon that ground: that it is wrong and an offence no man will deny; but whether to be animadverted upon both by the ecclesiastical and common law, is not material here to be sure, it was not punishable as a crime at common law; and the statutes seem only to go to the punishment of the parents for the purpose of securing an indemnity to the parish. But here this offence is not assigned as the reason for discharging the servant; and if it were, I have no difficulty to say, that I think a master hiring a servant after an offence committed, and that not in his own house, shall not at the close of the year discharge him under this pretence: it is not a debauching of his servant, or turning his house as it were into a brothel. I do not go on that ground, nor upon the consent or implied agreement to go before the end of the year, for there was none: it was against the intention of both parties that it should affect the settlement; and if the case were to go upon that, it ought to be returned to the sessions to have that fact stated; there was no fraud intended, because there was no agreement; nor did the master mean either to prevent or promote the settlement; but he deducts a something to leave that question open, which it was the object of other persons who were interested to have discussed. The true point then is, supposing no wages paid and no agreement, here are four days wanting in the service, and it is by means of his own act that he becomes incapable of completing it. His conduct is an offence against morality and the laws, in what jurisdiction soever those laws are administered; and the consequences of it are equivalent to a

Frifhly, Of dissolution.

Where a servant was apprehended bastardy, and detained some service: It was days from his held that he did not gain a settlement.

on a charge of

Fifthly, Of dissolution.

The servant, to avoid an order of bastardy, ab

sconds with his

In nine days he returns and agrees to work with his master

again, and at the end of the year receives the balance of the whole wages, minus 2s. 6d. for the absence. No settlement was gained thereby.

wilful absence: I therefore think he did not gain a settlement: it is well put, that had an action been brought for his wages, he could not have recovered for these four days.

Rex v. North Cray, 2 Bott, 450; Cald. 562; 1 Nol. P. L. 441. The pauper, who was absent nine days before the expiration of his service under a yearly hiring, was charged on oath with being the father of a bastard child not then actually born: he was apprehended by warrant, and committed for want of security, October 11th; the last day of his year he gave a bond of indemnity to North Cray: his master during all this time was one of the overseers: the pauper was discharged from prison by an order of magistracy, and the master paid him all his wages, except for the time of his imprisonment. The Court held that here was no actual service, and that the pauper was absent through his own fraud.

Rex v. East Kennett, 2 Bott, 451; Cald. 562; 1 Nol. P. L. 443. The pauper was serving under a yearly hiring from Michaelmas, at 7l., and hearing in May following there was a warrant out against him for getting a master's privity. bastard child, told his master he must be off, and asked him for money to go off with; his master gave him three guineas and a half; he ran away, leaving some clothes and his threshing tackle; two or three days after he was taken up, and obliged to marry the woman. After nine days' absence, he returned to his master's house for his clothes, &c.: the master said to him, "Where are you going?" The pauper answered, “I do not know;" upon which the master said, “ You may as well work for me again as any other." The pauper agreed, and continued to work there without any fresh agreement, and at the expiration received, including the 31. 13s. 6d. his 71. wages, all but half-a-crown, which the master deducted for his absence. The pauper, when he ran away, never thought of going back to him, but considered himself discharged.-Lord Mansfield, C. J., adverting to the concluding part of the case, said, it shewed the fact, though it did not alter the law. "The servant desires to be off." How off? His service. He received his wages, and if not the whole, it was on account. He goes back, not on the whole contract, but for his clothes, and a new agreement takes place. No settlement was gained.

If fraud be not found by the

sessions, the

In Rex v. Kenilworth, 2 T. R. 598; 1 Nol. P. L. 434, 441; Buller, J., said, The circumstances of the pauper's having been apprehended on a charge of bastardy, I lay out of the question; for it was competent to the master to receive him again after he was discharged out of custody, if he pleased.

Rex v. Preston, Burr. S. C. 69; 1 Nol. P. L. 413. A person served, under a hiring, his whole year within five days, and then left his master by consent, the parish officers having first given him two guineas to leave the act upon such an parish, he being about to be married. The justices held this to be no settle

Court will not

imputation.

Thirdly, Place

of Settlement.

ment, and stated the case specially. It was objected that this departure was fraudulent.-But by the Court. The justices might, upon evidence, have examined into that point; and if they had thought that his departure was fraudulent, they would, without question, have stated it to have been so; that not being done, we cannot intend any fraud, nor that the party hath gained any settlement, it being agreed on all sides that he hath not served his year. But they decided the case upon a defect in the order.

III. The Place in which the Settlement is Acquired. (a) Although the law requires a hiring for a year, and a service for a year, yet a residence for forty days, in any particular parish or place, during such hiring and service, will complete the settlement. But as a servant may, during a hiring and service for a year, reside forty days in several different parishes, it is held that the settlement will be in that parish where he last completes a forty days' residence.

However, less than forty days' residence in a parish will not gain a settle

(a) See division of this subject, ante, 320.

ment, as was held in Goring v. Moltsworth, Sess. Ca. 327; Sett. & Rem. Thirdly, Place 219; 1 Barnard. 436; 1 Nol. P. L. 423; where a person hired for a year, of Settlement. and who served the year with a master living at Goring, and who kept a boat, which navigated from Goring to London, but the servant was not forty days in the whole year at Goring, but served out the year on board the boat. By the Court. This was no settlement at Goring.

dence necessary to a settlement.

Forty days' resi

It is not necessary that the forty days should be continuous; Greenwich They need not v. Longdon, Burr. S. C. 243; 2 Bott, 398; 1 Nol. P. L. 490. George be all together. Wall was hired, and served for a year, as a livery servant, to Saunderson, commander of a yacht, who had a house and family at Greenwich, and resided there when not on the king's service. His master made frequent voyages to Holland, and he always attended him, and he was never forty days together at Greenwich, but during his service he was there forty days at different times.-By the Court. It need not be forty days all together it is sufficient if within the year he reside forty days in the whole.

year.

Rex v. Denham, 1 M. & S. 221. Order confirmed by the sessions But must be for the removal of Charles Tranter.-Lord Ellenborough, C. J., delivered within the comthe judgment. The question was, whether it was necessary there should pass of a single be forty days' residence within the compass of a year, or whether, if the service were for several years uninterruptedly, a residence of forty days within those several years would be sufficient? The facts were these; the pauper was hired for a year to Smith, and served that year; at the expiration of which he was hired to him for another year, and served half of it; and during that year and a half he was resident in B. for forty days, but he did not reside in B. for forty days, either within the first year, or within the half year, nor (as was admitted) within any one period of a year whilst he continued with Smith. The sessions were of opinion, that this residence was not sufficient, and we think their opinion right. By 13 & 14 Car. II. c. 12, s. 1, poor persons coming to settle in any parish, if likely to be chargeable to the parish, may be removed within forty days after they so come to settle as aforesaid; and it is under this act that forty days' residence is required. By 1 Jas. II. c. 17, s. 3, the forty days' continuance shall be accounted from the delivery of notice in writing to one of the officers of the parish to which such poor person removes: which notice, by 3 & 4 W. & M. c. 11, s. 3, is to be read in church the next Lord's day, and registered in the book kept for the poor's accounts. By the same stat., if any unmarried person, not having child or children, shall be lawfully "hired into any parish or town for one year, such service shall be adjudged a good settlement therein, though no such notice in writing be delivered and published as aforesaid." And by 8 & 9 W. III. c. 30, s. 4, "No person, so hired as aforesaid, shall be adjudged to have a good settlement in any such parish or township, unless such person shall continue and abide in the same service during the space of one whole year." Upon these clauses, settlements by hiring and service now stand. It has been decided that so as there is a hiring for a year, and service for a year, it is not necessary the whole of the service should be under the yearly hiring, but service not under a yearly hiring may be connected with service under a yearly hiring, and both services, if uninterrupted, may be taken into the account: but it has never been decided that residences beyond the compass of a year can be connected; and as the legislature, by requiring a hiring for a year, and a continuance and abiding in the same service during the space of one whole year, seem to have contemplated something which was not to be complete in less than a year, but was to be complete within that period, we think we abide most closely by the words, and give effect to the most probable intention of the legislature, by holding that the whole residence must be within the compass of a single year. Suppose the same service to continue uninterruptedly for twenty years, and the servant to sleep twice in every of such twenty years at the same inn in travelling, and to be at that inn the last night of his service, would it be expedient and reasonable that an inquiry extending over so long a period of time at detached intervals should be gone into for the purpose of ascertaining the settlement of a pauper? What notice could the officers of that parish have had that he was come to settle there? And yet there his