Thirdly, Place settlement would be, if we were to hold that residence for forty days beyond of Settlement. the compass of a single year would do. The forty days' residence need not be under the same year's hiring. If the last forty days' service be in different parishes, the set the servant lodges ing of this word, Rex v. Findon, 4 B. & C. 91; 6 D. & R. 116; 3 D. & R. Mag. Ca. 144; William Steff was removed from Bedgrave to Findon. Order confirmed. Case: The pauper continued in Mr. Ventris's service, under successive yearly hirings, from the 2nd November, 1807, until the 2nd November, 1811, when the pauper was again hired by Ventris for another year. The pauper served his master at St. Peter's in the East, Oxford, from the 2nd November, 1811, until the 14th April, 1812. He then accompanied him to several places until the 2nd November, 1812, when he was again hired by Ventris for another year, and he travelled about with his master until the 20th December, 1812, on which day they arrived at Findon, (the appellant parish), where they continued more than forty days, and afterwards he accompanied his master to St. Peter's in the East, where they continued up to the 2nd April, 1813, a space of thirty-eight days, and on the 2nd April, 1813, left Oxford for Beeding, where they continued until the 2nd May following, thirty days, when they parted by mutual consent.-Abbott, C. J. The settlement of the pauper is clearly at Oxford: he was undoubtedly settled there on the 2nd April, 1813, having resided there more than forty days within the last year of his service, and gained no subsequent settlement. It is not necessary that the whole of the residence should be under the last year's hiring. Bayley, J. I think this point was in effect decided in Rex v. Denham, and Rex v. Hamboro', which was before the Court in 1819. It has never been decided that the forty days' residence must be under the last year's hiring. In Rex v. Apethorpe, (ante, 379), it was held that part of the residence must be under a contract of yearly hiring. He Lowess v. Lanstephan; Burr. S. C. 825; 2 Bott, 404; 1 Nol. P. L. 468. The pauper was hired for a year to John Williams, of Lanstephan, where his master occupied his own estate. He continued with his master in Lanstephan till some time before St. Peter's Tide, when his master and family removed to Lowess, in which parish his master rented another farm continued with his master in Lowess till the 16th of January following, when his master and family removed to Lanstephan, and his master afterwards constantly resided there. But the pauper was sent back by his master to Lowess, to thrash the corn, and look after his master's cattle. The pauper staid in Lowess two or three nights and days, and ate and lodged there; and then returned again to Lanstephan in like manner as aforesaid; and so continued between the parishes to the end of his year, which was the 17th of May following. The pauper never continued forty days together in either of the two parishes after the said 16th of January, but lived and resided as aforesaid more than forty days in the whole, in each. He believed he resided most at the latter part of his service in Lanstephan, and lodged there the last night; and went from thence in the morning to Lowess, and took some cattle of his master's from thence to the Hay-fair, where he finished his service. The Court held him to be legally settled in Lanstephan. So in Rex v. Hulland; Doug. 657; Cald. 118; 2 Bott, 288; 1 Nol. P. L. 468. It was held that a person who has resided part of the year in one parish, and part in another, at different times and intervals, making, when added together, more than forty days in each, is settled in the parish where he lodged the last night. Rex v. Iveston, Cald. 288; 2 Bott, 407; 1 Nol. P. L. 468. The pauper was hired for a year to serve as a collier: he resided at Kyo from Martinmas, when he was so hired, till the May-day following, when he married; about fourteen days after his marriage, he took a cottage in Iveston, and, without the privity of his master, removed thither from Kyo with his wife, where they continued above forty days, and until about fourteen days preceding the expiration of his service, and then they returned to Kyo.-The Court thought this case similar in principle to Rex v. Hulland, and precisely to that of Lowess, and that they ought to be adhered to; and the settlement was, therefore, in Kyo. In Rex v. Great Bookham, Cald. 290; 2 Bott, 407, n., the same point was considered as fully settled. Rex v. Undermilbeck, 5 T. R. 387; 2 Bott, 291; 1 Nol. P. L. 392, 396, 397, 428. Removal from Undermilbeck to Dalton. John Dixon, late husband of the pauper, was hired for a year, and entered upon his service in the beginning of April, 1783, and continued with his master till December following; when his master, having little to do in the winter season, gave him leave of absence for six weeks to work for himself wherever he pleased, allowing 15s. out of his yearly wages. Dixon then went to his father's house in Sawrey and continued there seven weeks, being one week longer than he had leave for. About that time his master contracted with one Braithwaite, that he and his servant Dixon would assist Braithwaite in making some fence-walls in Pennington, where Dixon continued working with his master above forty days, the same being till within about three or four days of the end of the term; when he went away again to his father's house in Sawrey, with his master's consent; and whilst he so continued in Sawrey, the year's service with Bowness expired. During the time that Dixon worked in Pennington he slept at Dalton, but never worked a day's work in Dalton. When Dixon went the last time to his father's house in Sawrey, it was on the Saturday, and his year's service would not have expired till the Tuesday following. On the Monday morning he went to make up some fence-wall on his father's account in Sawrey, but was taken ill that afternoon, and continued out of health for some weeks afterwards. Dixon afterwards went to his master, who paid him his wages, deducting 158. for the six weeks' absence, and 2s. 6d. for the other week he was absent more than agreed for. It was argued that the residence in Sawrey, for the last three days, could not be connected with the former service in that place, because Dixon did not serve there at all during those three days; therefore, the last forty days' service was in Dalton.-Lord Kenyon, C. J. It has been properly admitted that the contract was not dissolved by the servant's absence for seven weeks, because the master consented to it, and received part of the servant's earnings; and as the service continued, in contemplation of law, during the whole year, I think the servant was settled in Sawrey, where he slept the last night, he having, before that time, served there forty days in the course of the year. For it has been decided, after much argument, that the last day's service may be connected with any preceding service in the same parish, notwithstanding any intervening service elsewhere for forty days. St. Peter's in Oxford v. Chipping Wycomb, 1 Stra. 528; Fol. 200; 2 Bott, 275; 1 Nol. P. L. 469. The master of the Oxford stage-coach hired a servant for a year, to stay in an inn in Wycomb where the coach baited, and to take care of the horses: he lived there for the whole year, and the master all the while lived in Oxford. The question was, where that servant gains a settlement, or whether any by that service? And by the whole Court, he gained a settlement in Chipping Wycomb, though his master never lived there. Bishop's Hatfield v. St. Peter's, St. Albans, Fol. 197; 2 Stra. 794; 1 Nol. P. L. 469. Langley was huntsman to Mr. Arnold, who lived sometimes in Westminster, and sometimes in Northamptonshire, but Arnold had no settlement in St. Peter's; Langley served the last forty days of his year in St. Peter's with Arnold. The Court of K. B. held Langley's settlement to be in St. Peter's, by serving Arnold the last forty days of his year there, though Arnold had no settlement there. Rex v. East Ilsley, Burr. S. C. 722; 2 Bott, 402; 1 Nol. P. L. 470. The pauper was hired for a year, and so for two years afterwards, successively, to the Earl of Portmore, to look after his running horses; and during the three years removed from place to place with the horses, the last ten months of which time he resided with the horses at East Ilsley, which was a public place for exercising and training running horses; the earl had no house in East Ilsley, nor any estate there. The question was, whether a groom, residing at a public place, where his master had no house or estate, merely for the purpose of training running horses, should gain a settlement at that public place? And the Court were unanimous that this was a good settlement. Rex v. Bath Easton, Burr. S. C. 774; 2 Bott, 403. Thomas King, Thirdly, Place of Settlement. Residence of a yearly servant with his master at a sea bathing place for forty days, confers a settlement. the pauper, was hired as a covenant-servant for a year, to Mr. Robinson, who then resided at his house at Bath Easton, as his only place of general residence. He entered upon the service, and served the year and some months. He served the first part of the year at Bath Easton, but, about the latter end of April, 1764, he attended Robinson with the rest of his family to Exmouth, where Robinson went for sea-bathing. Robinson hired by the week, at fourteen or fifteen shillings by the week, the whole of a small lodging-house at Exmouth, which belonged to an innkeeper, who kept it ready furnished solely for the purpose of letting it to strangers; in which he stayed for the space of ten weeks; during the whole of which time the pauper served him there. Robinson then hired, by the week, lodgings in another house in Exmouth, being obliged to quit the former on account of its being engaged to a lady and her niece from London, who came to Exmouth for the same purpose of sea-bathing. He stayed at the lastmentioned lodgings, and the pauper with him, for the space of two months, except an absence of about three weeks on an excursion into Kent, where the pauper attended him; after which he returned to Exmouth, and the pauper with him, who continued in his service at Exmouth till his master discharged him, just before his leaving that place, and returning to his residence at Bath Easton; which was when he gave up the lodgings lastmentioned, at the expiration of the said space of two months. Exmouth is a place generally resorted to by persons from Exeter and London for sea-bathing but merchants also resort to it from Exeter as to a village. -Lord Mansfield, C. J. This was a common hiring for a year: there is nothing particular in it. And in the case of a common hiring for a year, a service with the master gains a settlement to the servant in the place where the last forty days of such service were performed. Here the service with the master for the last forty days ended at Exmouth. There was no continuance of service with the master after the master's return to Bath Easton. In Alton v. Elvetham, there were many particular circumstances; the servant was born at Elvetham, under a certificate from Alton, and could not gain a settlement there by his original hiring and service in that place; nor without a discontinuance of it, and a new subsequent hiring. But no discontinuance ever happened in that case: the service did not end at Scarborough: it continued. The servant at Scarborough proposed a new agreement for another year: his master said, it would be time enough when they returned home to Elvetham; whereupon the servant continued on, for about six weeks, until they returned to Elvetham, when he was again hired by his master for a third year, and served it out at Elvetham, and continued in his master's service for seven years more in Elvetham. So that it was a continuation of the original hiring: the contract did not end at Scarborough. The question, therefore, in that case was, whether serving his master, who resided at Scarborough as a sojourner, for about forty days, should gain the servant a settlement there, when his former hiring at Elvetham was not discontinued, nor ended at Scarborough, but, on the contrary, continued and went on until and after their return to the master's general residence at Elvetham; but that case does not lay it down generally, that no servant can gain settlements at places where people go to drink waters, though they serve their masters or mistresses there for forty days: if it does, it is wrong; for no such general rule ought to be laid down. We are all of opinion, that this servant who went with his master to this place, and served him there for the last forty days of his service, which ended at this place, and was not at all continued at any further time or place, is legally settled there by serving the last forty days at it.-Willes, J., strongly declared his assent to this opinion; and added, that he hoped it would be understood, that serving a master forty days at a public place gains a servant a settlement at that public place (a). Rex v. St. Peter's in Oxford, (a) The judgment in the case of Alton v. Elvetham, Bott, 400, which may be considered as over-ruled by the above case, so far as it supported the doctrine of Settlement. Sett. & Rem. 139; Fol. 193; 1 Stra. 524; is to the same effect, and will Thirdly, Place be found in its most correct form in the judgment of Lord Mansfield in Alton v. Elvetham, infra note. Rex v. St. Andrews, Holborn, 2 Bott, 408; 1 Nol. P. L. 405, 464, 467, as to a distinction between residence at a watering place and any other place, is as follows.-Lord Mansfield, C. J. This was an order made for the removal of the wife of the pauper from Elvetham to Alton. The sessions state these facts: Alton, in 1722, gave a certificate to the father of the pauper to Elvetham; under which the father went to Elvetham, and has dwelt there ever since; the pauper and other children were born there. The pauper, on the 29th of August, 1734, was hired for a year as a covenantservant by Sir Henry Calthorpe, at Elvetham, and served that year out in that parish; that at the expiration of this year, he was hired again as a covenantservant by him for another year, and served that year; but it happened that the last forty days of the second year were at Scarborough in Yorkshire; that he did not, at the end of the year, quit the service, but on the 29th of August, 1736, he applied to his master to make a new agreement for another year, when the master said it would be time enough when they returned home to Elvetham; whereupon he continued for about six weeks with his master at Scarborough, when they returned home to Elvetham: then he was hired for a third year, and served that year out at Elvetham, and continued in his service for seven years more, and his wages were advanced every year; and afterwards he quitted that service, and married, and had four children, mentioned in the order. The justices considered him serving altogether in Elvetham, and that he could not gain a settlement there. It has been contended that they were in the wrong, for he ought to be considered as having gained a settlement in Elvetham, not withstanding the certificate. That is not contended for directly, because service for a year of a certificate person will not gain a settlement; therefore it is indirectly contended for, that he had gained a settlement. His master goes (probably for his health) to Scarborough, and happens to stay there forty days; and it is contended that the servant then gained a settlement at Scarborough, which discharged the certificate, and then he afterwards gained a settlement at Elvetham. The general question is, whether this accidental service of forty days at Scarborough acquired a settlement to the servant? It is immaterial whether the master has or has not a settlement in the place where the service is, because that will not prevent the servant gaining a settlement: but the objection here is, whether the forty days at Scarborough are to be considered barely as a continuation of the service at Elvetham, or a new bond fide service at Scarborough? There are several cases where a servant, though locally absent, may yet be considered as continuing his service in the place to which he was hired. So if a servant was ill, and went to Bath, by the consent of the master, that would be a continuation of the service. Therefore the consideration here is, of convenience and inconvenience, of justice and injustice, which will have great weight, unless there are authorities which stand in the way. I will consider this, first, under the circumstances of the case; then, secondly, I will consider the authorities. The general ground upon which this must be determined, if there are no authorities, is this: substantially, the master lived at Elvetham; he hired his servant to be a servant there; the parish was jealous of the servant coming in there, and got a certificate from Alton. Sir Henry happens to go to Scarborough, as a sojourner for a particular purpose, not as an inhabitant. When they are to make an agreement for a third year, they both consider themselves as absent from home. It would be perilous for these public places of resort, if such a service were to gain a settlement. Besides, what fraud would be brought upon parishes, if settlements might be gained in this manner, when a parish trusts to certificates? Suppose a person in service has an accident upon the road by breaking a leg, and he stays forty days at a place, shall that be a settlement? Suppose he stays forty days with his master in a sea-port, being wind bound, would that gain a settlement? The master's abode here is at Elvetham, which I lay great stress on. The domicile (as the civilians call it) of Sir Henry was not at Scarborough. I shall next consider the authorities cited; the principal of which was, Rex v. St. Peter's in Oxford, 1 Stra. 524. The Court will pay regard to former determinations for the sake of certainty. But if an authority were single, and plainly productive of inconvenience, the Court will, in such case, over-rule it. But the present authority does not at all contradict the doctrine I have been laying down. This case was cited to show, that a passage or transitory resi Thirdly, Place of Settlement. A hiring may be in an extra-parochial place, and a settlement may be gained by a 474. The pauper, William More, was removed from St. Andrew's, Holborn, to Aston-juxta-Bridworth. Order quashed. Case: The pauper, about 1760, became a yearly hired servant to Mr. Squire, an attorney in Furnival's Inn, London, with whom he lived about eight years. The usual place of Mr. Squire's residence was Furnival's Inn, but he used frequently to go to Bath for his health, when the pauper always accompanied him. His stay, on those occasions, was sometimes four or five months together. He was always in lodgings there, and generally on the South Parade, in the township; and if parish of St. James's in Bath. During the three last years, Squire resided rather more at Bath than at Furnival's Inn; and the last time the pauper service under it in a parish or the master and dence might gain a settlement. I shall state the case as it is in Strange, where it is said, that in the case of Rufford it was not doubted, but that hiring into an extra-parochial place would gain a settlement. And so Powell, J., somewhere said, that if a servant were hired for a year in Ireland, and the service were performed here, it would gain a settlement. But here I cannot but observe, that it is a great pity that cases should get abroad under the sanction of great names, which being taken from notes that gentlemen took only for their own use, and not by any public officer appointed for that purpose, are incorrect often in the state of them. The present case, as reported in Strange, is most certainly misreported. It is stated that the pauper was hired for a year into Christchurch, without saying how or under what circumstances her mistress lived there; and that her mistress went upon a visit to Fauley-court. Now her mistress being a single woman, could not possibly have any abode in Christchurch but as a visitor or friend. And it is further said, that the only doubt was, whether the settlement gained at Christchurch was superseded or not? That could not possibly be so. For she could by no means gain a settlement in Christchurch, which was not only an extra-parochial place, but a single house only, having been once a monastery, being in the nature of one of the king's palaces, which may be extra-parochial. 1 mention this, to show the incorrectness of cases, which cannot be relied on. This case is also in Foley, 215, and Cases of Settl. 139, reported differently. But all of them together may serve to help us to the truth, and which, upon inquiry, I find to be this: Mrs. Cook, the mistress of the servant, had two daughters; one married to Dr. Clavering, dean of Christchurch; the other to Mr. Freeman, who lived at Fawley court; and she lived alternately with these two gentlemen, her sons-in-law; and was as much at Fawley-court as at Christchurch, and (as I observed before) it was not possible the servant should be settled at Christchurch, because it was an extra-parochial single house. This was, I think, the only material case cited at bar; but there is another which I have had mentioned to me, Bishop's Hatfield, v. St. Peter's in St. Alban's, (Foley, 197,) where a huntsman was hired by one Mr. Arnold, who lived sometimes in Westminster, and sometimes at Northampton, and the servants resided, where the hounds were kept, at St. Alban's; and the only question was, whether the servant could acquire a settlement there by such service, as his master had none? and there was no doubt but he could, for he came exactly within the case of a stage-coachman, who was hired to serve at Wycomb, though the master lived at Oxford; where it was held, that the servant's settlement does not at all depend upon the master's. But that case was very different from the present; for the question was not, whether there was a continuance of service with the master in Westminster or Northampton, but he was settled by living in that place with the hounds; and the master, I suppose, might be probably a member of parliament, and might have a house to go to for hunting merely, which is a very common case in the neighbourhood of London. However, there is no precision in the case, on which the Court can rely; and upon the whole, I think it not at all inconsistent with our present resolution, which is, that in the present case the whole of the service was only a continuation of the service at Elvetham. However, I would have it observed in the present case, that I lay great stress on both the master and servant considering Elvetham as their home, as also upon the precedent and subsequent service, and upon the circumstances of the certificate. There was another objection at bar, but not relied on that it does not appear but that the husband may be living, and he is not removed, and may have gained a settlement since. But this the Court will not presume. If he be living, they must remove him after to his family. And both the orders were confirmed. |