Page images
PDF
EPUB

days, confers a settlement.

Thirdly, Place the pauper, was hired as a covenant-servant for a year, to Mr. Robinson, of Settlement. 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 Residence of a

months. He served the first part of the year at Bath Easton, but, about the yearly servant with his master latter end of April, 1764, he attended Robinson with the rest of his family at a sea bathing to Exmouth, where Robinson went for sea-bathing: Robinson hired by the place for forty

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 Elve. tham 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 considered as over-ruled by the above v. Elvetham, Bolt, 400, which may be case, so far as it supported the doctrine 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 of Settlement. 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 is, because that will not prevent the sera watering place and any other place, is vant gaining a settlement: but the obas follows.-Lord Mansfield, C. J. This jection here is, whether the forty days was an order made for the removal of at Scarborough are to be considered the wife of the pauper from Elvetham to barely as a continuation of the service Alton. The sessions state these facts: at Elvetham, or a new bona fide service Alton, in 1722, gave a certificate to the at Scarborough? There are several cases father of the pauper to Elvetham ; under where a servant, though locally absent, which the father went to Elvetham, and may yet be considered as continuing his has dwelt there ever since; the pauper service in the place to which he was and other children were born there. The hired. So if a servant was ill, and went pauper, on the 29th of August, 1734, to Bath, by the consent of the master, was hired for a year as a covenant- that would be a continuation of the serservant by Sir Henry Calthorpe, at Elve- vice. Therefore the consideration bere tham, and served that year out in that is, of convenience and inconvenience, of parish; that at the expiration of this justice and injustice, which will have year, he was hired again as a covenant- great weight, unless there are authorities servant by bim for another year, and which stand in the way. I will conserved that year; but it happened that sider this, first, under the circumstances the last forty days of the second year of the case; then, secondly, I will conwere at Scarborough in Yorkshire ; that sider the authorities. The general ground he did not, at the end of the year, quit upon which this must be determined, if the service, but on the 29th of August, there are no authorities, is this: snbstan1736, he applied to his master to make tially, the master lived at Elvetham; he a new agreement for another year, when hired his servant to be a servant there ; the master said it would be time enough the parish was jealous of the servant when they returned home to Elvetham; coming in there, and got a certificate whereupon he continued for about six from Alton. Sir Henry happens to go weeks with his master at Scarborough, to Scarborough, as a sojourner for a parwhen they returned home to Eivetham: ticular purpose, not as an inhabitant. then he was hired for a third year, and when they are to make an agreement served that year out at Elvetham, and for third year, they both consider continued in his service for seven years themselves as absent from home. It more, and his wages were advanced would be perilous for these public places every year; and afterwards he quitted of resort, if such a service were to gain that service, and married, and had four a settlement. Besides, what fraud would children, mentioned in the order. The be brought upon parishes, if settlements justices considered him serving altogether might be gained in this manner, when a in Elvetham, and that he could not gain parish trusts to certificates ? Suppose a a settlement there. It has been con- person in service has an accident upon tended that they were in the wrong, for the road by breaking a leg, and he stays he ought to be considered as having forty days at a place, shall that be a gained a settlement in Elvetham, not. settlement? Suppose he stays forty withstanding the certificate. That is days with his master in a sea-port, not contended for directly, because ser- being wind bound, would that gain a vice for a year of a certificate person will settlement? The master's abode here not gain a settlement; therefore it is is at Elvetham, which I lay great stress indirectly contended for, that he had on. The domicile (as the civilians call gained a settlement. His master goes it) of Sir Henry was not at Scarborough. (probably for bis health) to Scarborough, I shall next consider the authorities and happens to stay there forty days; cited; the principal of which was, Rer and it is contended that the servant v. St. Peter's in Oxford, 1 Stra. 524. then gained a settlement at Scarborough, The Court will pay regard to former which discharged the certificate, and determinations for the sake of certainty. then he afterwards gained a settlement But if an authority were single, and at Elvetham. The general question is, plainly productive of inconvenience, the whether this accidental service of forty Court will, in such case, over-rule it. days at Scarborough acquired a settle. But the present authority does not at ment to the servant ? It is immaterial all contradict the doctrine I have been whether the master has or has not a Jaying down. This case was cited to settlement in the place where the service show, that a passage or transitory resi

Thirdly, Place 474. The pauper, William More, was removed from St. Andrew's, Holborn, of Settlement. to Aston-juxta-Bridworth. Order quashed. Case: The pauper, about

1760, became a yearly hired servant to Mr. Squire, an attorney in FurniA hiring may be val's Inn, London, with whom he lived about eight years. The usual place chial place, and a

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 be gained by a service under it

stay, on those occasions, was sometimes four or five months together. He in a parish or 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

in an extra-paro

settlement may

dence might gain a settlement. I shall was an extra-parochial single house. state the case as it is in Strange, where This was, I think, the only material it is said, that in the case of Rufford it case cited at bar; but there is another was not doubted, but that hiring into an which I have had mentioned to me, extra-parochial place would gain a set- Bishop's Hatfield, v. St. Peter's in St. tlement. And so Powell, J., somewhere Albun’s, (Foley, 197,) where a huntssaid, that if a servant were hired for a man was hired by one Mr. Arnola, who year in Ireland, and the service were lived sometimes in Westminster, and performed here, it would gain a settle- sometimes at Northampton, and the serment. But here I cannot but observe, vants resided, where the hounds were that it is a great pity that cases should kept, at St. Alban's; and the only quesget abroad under the sanction of great tion was, whether the servant could names, which being taken from notes acquire a settlement there by such serthat gentlemen took only for their own vice, as his master had none ? and there use, and not by any public officer ap- was no doubt but he could, for he came pointed for that purpose, are incorrect exactly within the case of a stage-coachoften in the state of them. The present man, who was hired to serve at Wycomb, case, as reported in Strange, is most though the master lived at Oxford; certainly misreported. It is stated that where it was held, that the servant's the pauper was hired for a year into settlement does not at all depend upon Christchurch, without saying how or the master's. But that case was very under what circumstances her mistress different from the present; for the queslived there; and that her mistress went tion was not, whether there was a conupor a visit to Fawley-court. Now her tinuance of service with the master in mistress being a single woman, could Westminster or Northampton, but he was not possibly have any abode in Christo settled by living in that place with the church but as a visitor or friend. And hounds; and the master, I suppose, it is further said, that the only doubt might be probably a member of parliawas, whether the settlement gained at ment, and might have a house to go to Christchurch was superseded or not? for hunting merely, which is a very That could not possibly be so. For she common case in the neighbourhood of could by no means gain a settlement in London. However, there is no preChristchurch, which was not only an cision in the case, on which the Court extra-parochial place, but a single house can rely; and upon the whole, I think only, having been once a monastery, it not at all inconsistent with our present being in the nature of one of the king's resolution, which is, that in the present palaces, which may be extra-parochial. case the whole of the service was only I mention this, to show the incorrect- a continuation of the service at Elveness of cases, which cannot be relied on. tham. However, I would have it obThis case is also in Foley, 215, and served in the present case, that I lay Cases of Settl. 139, reported differently. great stress on both the master and serBut all of them together may serve to vant considering Elvetham as their home, help us to the truth, and which, upon as also upon the precedent and subseinquiry, I find to be this : Mrs. Cook, quent service, and upon the circumthe mistress of the servant, had two stances of the certificate. There was daughters; one married to Dr. Cla- another objection at bar, but not relied vering, dean of Christchurch; the other on : that it does not appear but that the to Mr. Freeman, who lived at Fauley- husband may be living, and he is not court; and she lived alternately with removed, and may have gained a settlethese two gentlemen, her sons-in-law; ment since. But this the Court will and was as much at Fawley-court as at not presume.

If he be living, they Christchurch, and (as I observed before) must remove him after to his family. it was not possible the servant should And both the orders were confirmed. be settled at Christchurch, because it

servant be at a

house.

was at Bath with him, Squire stayed several months in his lodging on the Thirdly, Place South Parade. The pauper quitted Squire's service in May, 1768, having of Setilement. resided about four months previous thereto in Furnival's Inn : Furnival's Inn is an extra-parochial place. It was afterwards added, that Furnivals watering place Inn was no township or vill within the meaning of stat. 13 & 14 Car. II. during the last c. 12, and that no removal had ever been made to it.—Lord Mansfield, C. J. foety days; a setIt now appears that Furnival's Inn is not a vill within stat. 13 & 14 Car. II. gained there. c. 12. The hiring there lays the foundation for a settlement, but none can be gained there. You must look back to the last place except Furnival's Inn, where forty days were served; that place is Bath; and it being now settled that settlements may be gained at watering places, the settlement was gained there, notwithstanding the Scarborough case, ante, 418, n. (a).

Rex v. Ashton, Fol. 88; Sett. & Rem. 23; 2 Bott, 388; 1 Nol. P. L. Service with the 420. A servant was hired for a year in Ashton, where she served half a not in the same year; then her master, and she with him, removed to Patshall, where her place where the master took another farm; the servant continued with him in Patshall for hiring was, will the other half year. By the Court: Here is what the act requires, a hiring in the last place. for a year, and service for a year; for it is the same service, and the statute doth not tie it down to one place. If a person is hired to a master in one parish, and goes with him into another, and serves him for one whole year, the parish he continues last in for forty days before the end of his year is the place of his settlement; and the reason why the forty days gain a settlement is, because he comes there with his master, and you cannot remove him from his master; and having continued with him forty days unremovable, he gains a settlement.

Rex v. Whitechapel, 2 Sess. Ca. 114; Fol. 146; 2 Bott, 393 ; 1 Nol. P. It is not necesL. 468. A person was hired for five years to work at a glass-house in vant should lodge Whitechapel, at the rate of 10s. a week; but never lodged with his master at his master's in the house at any part of the time, but at another house in the parish.— By the Court: he has gained a settlement there; for being hired to serve above a year, and having served and resided in the same parish pursuant to such hiring, he hath fully complied with the statute, and it is not material where he lodged, so that it were within the parish.

Rex v. Hedsor, Cald. 51; 2 Bott, 405; 1 Nol. P. L. 468. Removal Where a person, from Little Marlow to Hedsor. The pauper was hired for a year to Lord vice, marries, Boston, and served him as a gardener for several years in Hedsor; ninety- and then lodges five days before the end of the 4th year, he married a woman of Litile with his wife for Marlow, and from the time of his marriage until the end of that year's days, in another service he lodged with his wife in Little Marlow, forty nights, but not suc- parish than that cessively, but did not lodge for forty nights elsewhere after his marriage. It is performed, he did not appear that Lord Boston had any property in Little Marlow, nor nevertheless where the pauper lodged the last night of the year's service in which he gains a settle. married. It appeared that he did not see Lord Boston within that year in parish where he which he married, nor had any consent to be absent those forty nights; and lodges. And this, that he never performed any service in Little Marlow on account of his thoughuit was

to the master; that he continued to serve Lord Boston several years after his mar- master, where he riage.--It was urged if a servant continued forty days in a parish in his lodged. master's service, the reason he gained a settlement was, his coming into such parish with his master; but the Court would not permit the servant to gain a settlement where his master had no property, and without his consent or knowledge, and clandestinely with respect to his master, and in fraud of the parish, who might not know were he slept, and therefore could not remove him. In reply, a variety of cases where cited, to show that a man is settled where he lodges the last forty days, although not successive.—Lord Mansfield, C. J. The cases seem to have settled it.

In Rex v. Nympsfield, Cald. 107; 2 Bott, 405 ; 1 Nol. P. L., 468 ; the same point was given up as being settled.

Rex v. Sutton, 5 T. R. 657; 1 Nol. P. L. 471. Case: H. Board- Held, that a ser. man, the pauper, was, about Christmas, hired for a year by Mr. Ker- vant obtained a

foot, of Great Sankey, to serve in husbandry for 71. 10s., and 5s. more parish where he in case the master approved of his service ; he continued in that service, had lived and until by the visitation of God he was deprived of his reason in November ten months, and

been sent as a

which he had

tract,

Thirdly, Place following, when his father fetched him away to his own house at Bold, and of Settlement, in two or three weeks afterwards he received the wages of 71. 10s., but not

the 5s. ; and the father afterwards kept him at home as part of his family not in the parish for about ten years in Bold, where the father died; the son all that time, as

well as since, continuing in the same situation. Order confirmed.-Lord lunatic, and in

Kenyon, C. J. The cases that have already been decided on this subject have resided the last

settled the principle on which our judgment must proceed in this case. two months of As this is a removal from Bold to Sutton, all we are called upon to decide the year's con.

in this case is, whether or not the pauper be now settled in Sutton and
whether the settlement which he gained in that place has or has not been
superseded by a subsequent settlement? for any question that may here-
after arise between Bold and Great Sankey will not affect this case. The
pauper was hired for a year in Great Sankey; he continued in that service
as long as he was capable of performing it; but in the course of the year he
was deprived of his reason, and consequently rendered incapable of dis-
charging his duty to his master. But in the consideration of questions of
this kind it is immaterial whether the servant's incapacity to perform his
service proceed from an infirmity of body or of mind. Where indeed the
servant commits a crime, the master may apply to a justice to have him dis-
charged; but if no such application be made, the relation of master and
servant subsists. In this case, there being no fault in the servant, nor any
application to a magistrate to discharge him, (for which, indeed, there was
no cause,) I am clearly of opinion, that the relation of master and servant
continued during the whole year, and consequently that the pauper ac-
quired a settlement by that service. If he bad recovered his reason before
the expiration of the year, the master might have been compelled to re-
ceive him again into his house. It was said by Lord Mansfield, in Rex v.
Christchurch, Burr. S. C. 497, that the absence of the servant on account of
sickness will not prevent his gaining a settlement, and that it is immaterial
whether or not such absence happen in the middle or at the end of the
year. With regard to Rex v. Sharrington, though it was not argued, it
appears that the Court exercised their judgment upon it, and I subscribe to
the doctrine of it. These observations are sufficient to dispose of this case;
but there is another question behind, and as probably the inagistrates below
will be called upon to make another order, I will beg to say a few words
upon it for the sake of their information. That question is, whether sup-
posing the pauper gained a settlement by reason of his service with Kerfoot,
he is settled in Great Sankey, the parish where the master lived, and where
the service was in contemplation of law performed, or in Bold, where the
father lived and received his son for the last forty days of the year? And
upon this question I have as little doubt as on the other point; being of
opinion that the settlement is in Great Sankey, where the service was in
law performed, though the servant did not in point of fact reside there the
last forty days of the year. In general the servant is settled in the parish
where he serves the last forty days; but I consider the residence with the
father under these circumstances as a residence in an hospital. We should
thwart our own feelings, and act contrary to humanity and principles of
public policy, if we were to determine that the father in this case brought a
burden on his parish by receiving his son into his house from motives of
tenderness and affection. And it must be remembered that this is not a
case sui generis ; there are others that stand in pari ratione. In general a
bastard is settled in the parish where he is born; but if he be born in a
gaol, or house of correction, his settlement is in his mother's parish. And
I think that Rex v. Sharrington goes some way to warrant my opinion in
this case ; for I cannot consider the pauper's residence with his father as a
performance of service with his master; he was there diverso intuitu in
order to recover from his illness, and not for the purpose of serving his
master. I am therefore clearly of opinion that the pauper's former settle-
ment has been superseded by the subsequent one which he gained in Great

Sankey. The other judges concurring, both orders were quashed. In a settlement Rex v. Mildenhall, 3 B. &. A. 374. Removal by order of two justices from by hiring and

Mildenhall to Newmarket, All Saints. Order quashed. Case : On the first

« PreviousContinue »