Secondly, Who may be removed. 4. Of Removal of Servants. It has already been observed, that the justices have no power, upon the complaint of the parish officers, to remove a servant from his master; because that would be to dissolve the contract betwixt the master and his Whether the ser- servant, which can only be done upon the complaint of the master or servant. 4. Removal of servants. vant may be re moved from the master. Discharging a female for bastardy is a disso. lution. A female servant ed by her master for being with child, and may to her settlement. Therefore, if a female servant happens to be pregnant, and the child is likely to be born a bastard, yet if her master is willing to keep her, the parish cannot remove her; whilst, on the other hand, the master, if he pleases, may complain to a justice of the peace, that she is less able to perform the service, and the justice (if he sees cause) may discharge her, and thereupon the parish officers, having obtained an order of two justices, may remove her. Rex v. Bleworth, Burr. 302, 4. Where a servant who was hired for three years, on certain conditions,-Lord C. J. Lee, put an end to the argument on the contract, by saying, "How could the justices remove him out of the service?" It appears that the man was actually in the service at the time of the removal. And the Court quashed the order. In Farringdon v. Witty, 2 Salk. 527; 2 Bott, 295, it was determined, that excepting on complaint of the master a servant could not be removed from his master's service, although the parish officers did complain. See Rex v. Brampton, infra. Rex v. Marlborough, 12 Mod. 402; 2 Bott, 42. An order of removal was made of a maid-servant, who, within her year of service, was pregnant of a bastard.-The Court. If one hire a maid for a year, and before the year's end she is got with child, she shall not for that be removed, but shall serve out her time. This, however, is good cause for discharge from her service; and after her discharge she might be removed. Rex v. Inhabitants of Brampton, Cald. 11; 2 Bott. 444. Two justices may be discharg- removed Hannah Wright from the parish of Ashover, in the county of Derby, to the parish of Brampton, in the same county. The sessions, on appeal, confirm the order, and state the following case: The pauper, being legally then be removed settled at Brampton, hired herself to one Mr. Longsden, of Eyam, for a year, and served under that hiring 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-a-crown over; whereupon she went home to her father's, at Ashover, from whence she was removed as above stated. The pauper, on her examination in court, said, she was willing to have staid her year out if she might; but that it was not material to her whether she staid or went, as she had received her whole year's wages, and that she was not half gone with child when she left her service, and hoped she could have done the work of her place to the end of the year.-Lord Mansfield, C. J. 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 the dismission of the servant, without good and sufficient cause. In the 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 make no difference. The question then is, Is this contract 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 Viner, whatever degree of authority it may be entitled to, is well warranted in principle. If the master agrees to the contract 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 bones mores, and in a family Secondly, Who may be removed. 4. Removal of where there are young persons, both scandalous and dangerous. Where a Rex v. Alveley, 3 East, 563. Order of removal of Jane Hinson, single woman, from Kinver to Alveley. The order stated, "That Jane is with child, and is therefore deemed chargeable to K., and the justices upon proof, &c. &c." did adjudge the same to be true, &c. &c., proceeded to adjudge the settlement. Order confirmed. Case: The pauper was settled in Alveley, and some time previous to Michaelmas, 1801, hired herself for a year to E. C., of K., for a year. She entered and served till September 2nd, 1802, when, she being about seven months gone with child, the parish officers of K. insisted upon her going before two magistrates, for the purpose of being examined as to the place of her settlement, and accordingly took her away from her service on the evening of that day, and the next morning brought her before the magistrates, who made the order of removal. The pauper's master had made no complaints against her, he did not consent to her being taken away, but objected to it, as did the pauper herself, who was perfectly able to do her work. After her examination had been taken, she returned to her master's service, and on the following day the parish officers remove her, under the order, from Kinver to A., telling her at the same time, that she might return to Kinver.-Lord Ellenborough, C. J. If the order of removal were good, no doubt it would operate to dissolve the contract. In Rex v. Kenilworth, the order of removal being unappealed from, was deemed valid; but this is now under appeal, and may be controverted. And that brings it to the question, Whether the order was properly made? Was it not the meaning of the act to prevent the removal of persons until actually chargeable, who were before removable, if likely to become so; but not to make persons removable who were not proper objects of removal before that act? Could it be meant that a person in this situation should be torn away from her parents, whatever her condition in life may be, and however far removed from any probability of being a charge on the parish? Is there any instance to be found in the books before this act, of a woman, under these circumstances, being a person of substance, and yet deemed to be removable? The substance of a person so situated, repels the idea of her being chargeable; and the act did not mean to make any one removable who was not so antecedently to the passing of the act. The general provision is, that no person shall be removable till actually chargeable; and the 6th section introduces an exception to that general rule, leaving the person, so circumstanced, to the operation of the law, as it stood before the passing of the act. [The respondent's counsel observed, that there were no facts stated in the case to shew that the woman was not a person who was likely to become chargeable at the time of the order made, or that the removing magistrates had not exercised their judgment upon that fact; on the contrary, they adjudge her to be chargeable, and before the act in question, such a person was removable.]-Lord Ellenborough, C. J. There is nothing of that sort stated in the case, nor any thing in the order itself to shew that the magistrates adjudged her to be chargeable, otherwise than as a consequence of law in their understanding of the act of parliament; they adjudge that she is with child," and is therefore deemed chargeable to the parish of Kinver." But though the act says, that such a person shall be "deemed and taken to be actually chargeable;" yet that must be under A single woman serving a master of hiring and service, cannot, though pregnant will be born a bastard, be reservice, against her consent and under a contract of a child which moved from her his. Secondly, Who may be removed. 4. Removal of servants. 5. Of removals under 35 Geo. 3. Order adjudging merely that the woman removed was with child and unmarried, without drawing the conclusion that she was chargeable, is bad. An order of removal, founded c. 101, s. 6, stat ing that A. E., single woman, was, by being stood to be secundum subjectam materiam, or as the act itself expresses it, "chargeable within the true intent and meaning of this act," which I have before explained. It lies upon the respondents to shew, that before this passed, the mere circumstance of a single woman in the service of another, being with child, operated as a dissolution of the contract, and made her liable to be removed against the consent both of the master and servant.(4) 5. Of Removals under 35 Geo. III. c. 101, s. 6, of Women with Child. [See the statute, ante, 709; see Rex v. Tibbenham, ante, 716; and Rez v. Sowerby, ante, 718; and ante, 722, 723.] Rex v. Holm, East Waver Quarter, 11 East, 381. An order of removal of E. M., from Oulton Quarter, in W., to Holm, East Waver Quarter, in Holm Cultram, stated, "That, upon complaint, &c., &c., that E. M., single woman, hath come to inhabit in the said Oulton Quarter, not having gained a legal settlement, nor produced any certificate owning her to be settled elsewhere, and that the said E. M. is with child and unmarried, we, the said justices, do adjudge the same to be true; and we do likewise adjudge, that the lawful settlement of the said E. M. is in the said Holm, East Waver Quarter, &c. &c." Order confirmed. The objection to the order was, "That it ought to have adjudged that the pauper was actually chargeable, and that it was not sufficient merely to state that she was with child and unmarried." And Rex v. Alveley was cited in support of the objection. -Lord Ellenborough, C. J. If it were an irrefragable conclusion that, being a single woman and with child, the party removed must be deemed to be chargeable within the meaning of this statute, then this order would be good; otherwise the justices ought to have drawn that conclusion, in order to shew that in their judgment she was a proper object of removal within the poor laws. But, consistently with this order, the party might have been a single woman with child, worth 10,000l., or she might have given the most ample security to the parish against any charge which could be thrown upon them. The statute in question first gives the general rule, that no persons shall be removed before they are actually chargeable. It then says, that single women with child shall be deemed and taken to be actually chargeable, within the true intent of the act. But still the justices ought to draw the conclusion that she is within that general rule, otherwise every single woman with child, whatever might be her substance, might be removed by the parish officers. Being unmarried and with child, such a person is presumptively chargeable, from the strong probability of the fact that she must be so; but there may be circumstances, such as the substance of the party, or the giving a complete indemnity to the parish, which may exclude that presumption. Now every circumstance of that sort might have existed in this case, and yet the order, as it is framed, be true. In Rex v. Diddlebury, the justices deemed her to have become chargeable; but she could not have been deemed to be chargeable, if those circumstances had existed in her instance. It ought to appear by the order that the justices have exercised their judgment upon the matter, and repelled the existence of such circumstances by the adjudg ment that she was chargeable, in order to shew that she was a proper object of removal within the meaning of the law. Orders quashed. See the proper form of order of removal in this case, post, appendix of forms.] Rex v. Diddlebury, 9 East, 398. Upon complaint, "That Ann Evans, on stat. 35 Geo. 3, single woman, had come to inhabit, &c., &c., and is, by being pregnant, deemed to have become chargeable to the said parish of T." two justices, “upon due proof made thereof, as well upon the examination of the said Ann Evans upon oath, as otherwise, and likewise upon due consideration had of the pregnant, deemed premises, did adjudge the same to be true, and that the lawful settlement, &c. &c." The sessions, upon appeal, found specially, that the pauper Ana Evans, being a single woman legally settled in D., and becoming actually chargeable to T., within the meaning of the 35 Geo. III. c. 101, s. 6, by being pregnant with a child who had since been born a bastard, was removed to have become chargeable, &c., is good. (a) See observations on this case, ante, 717. Secondly, Who may be removed. 4. Removal of where there are young persons, both scandalous and dangerous. Where a Rex v. Alveley, 3 East, 563. Order of removal of Jane Hinson, single woman, from Kinver to Alveley. The order stated, "That Jane is with child, and is therefore deemed chargeable to K., and the justices upon proof, &c. &c." did adjudge the same to be true, &c. &c., proceeded to adjudge the settlement. Order confirmed. Case: The pauper was settled in Alveley, and some time previous to Michaelmas, 1801, hired herself for a year to E. C., of K., for a year. She entered and served till September 2nd, 1802, when, she being about seven months gone with child, the parish officers of K. insisted upon her going before two magistrates, for the purpose of being examined as to the place of her settlement, and accordingly took her away from her service on the evening of that day, and the next morning brought her before the magistrates, who made the order of removal. The pauper's master had made no complaints against her, he did not consent to her being taken away, but objected to it, as did the pauper herself, who was perfectly able to do her work. After her examination had been taken, she returned to her master's service, and on the following day the parish officers remove her, under the order, from Kinver to A., telling her at the same time, that she might return to Kinver.-Lord Ellenborough, C. J. If the order of removal were good, no doubt it would operate to dissolve the contract. In Rex v. Kenilworth, the order of removal being unappealed from, was deemed valid; but this is now under appeal, and may be controverted. And that brings it to the question, Whether the order was properly made? Was it not the meaning of the act to prevent the removal of persons until actually chargeable, who were before removable, if likely to become so; but not to make persons removable who were not proper objects of removal before that act? Could it be meant that a person in this situation should be torn away from her parents, whatever her condition in life may be, and however far removed from any probability of being a charge on the parish? Is there any instance to be found in the books before this act, of a woman, under these circumstances, being a person of substance, and yet deemed to be removable? The substance of a person so situated, repels the idea of her being chargeable; and the act did not mean to make any one removable who was not so antecedently to the passing of the act. The general provision is, that no person shall be removable till actually chargeable; and the 6th section introduces an exception to that general rule, leaving the person, so circumstanced, to the operation of the law, as it stood before the passing of the act. [The respondent's counsel observed, that there were no facts stated in the case to shew that the woman was not a person who was likely to become chargeable at the time of the order made, or that the removing magistrates had not exercised their judgment upon that fact; on the contrary, they adjudge her to be chargeable, and before the act in question, such a person was removable.]-Lord Ellenborough, C. J. There is nothing of that sort stated in the case, nor any thing in the order itself to shew that the magistrates adjudged her to be chargeable, otherwise than as a consequence of law in their understanding of the act of parliament; they adjudge that she is with child," and is therefore deemed chargeable to the parish of Kinver." But though the act says, that such a person shall be "deemed and taken to be actually chargeable;" yet that must be under A single woman serving a master of hiring and service, cannot, though pregnant will be born a bastard, be re under a contract of a child which moved from her service, against her consent and his. Secondly, Who may be removed. 4. Removal of servants. 5. Of removals under 35 Geo. 3. Order adjudging merely that the woman removed was with child and unmarried, without drawing the conclusion that she was chargeable, is bad. An order of re. moval, founded c. 101, s. 6, stat ing that A. E., single woman, was, by being 66 stood to be secundum subjectam materiam, or as the act itself expresses it, chargeable within the true intent and meaning of this act," which I have before explained. It lies upon the respondents to shew, that before this passed, the mere circumstance of a single woman in the service of another, being with child, operated as a dissolution of the contract, and made her liable to be removed against the consent both of the master and servant. (a) 5. Of Remorals under 35 Geo. III. c. 101, s. 6, of Women with Child. [See the statute, ante, 709; see Rex v. Tibbenham, ante, 716; and Rex v. Sowerby, ante, 718; and ante, 722, 723.] Rex v. Holm, East Waver Quarter, 11 East, 381. An order of removal of E. M., from Oulton Quarter, in W., to Holm, East Waver Quarter, in Holm Cultram, stated, "That, upon complaint, &c., &c., that E. M., single woman, hath come to inhabit in the said Oulton Quarter, not having gained a legal settlement, nor produced any certificate owning her to be settled elsewhere, and that the said E. M. is with child and unmarried, we, the said justices, do adjudge the same to be true; and we do likewise adjudge, that the lawful settlement of the said E. M. is in the said Holm, East Waver Quarter, &c. &c." Order confirmed. The objection to the order was, "That it ought to have adjudged that the pauper was actually chargeable, and that it was not sufficient merely to state that she was with child and unmarried." And Rex v. Alveley was cited in support of the objection. -Lord Ellenborough, C. J. If it were an irrefragable conclusion that, being a single woman and with child, the party removed must be deemed to be chargeable within the meaning of this statute, then this order would be good; otherwise the justices ought to have drawn that conclusion, in order to shew that in their judgment she was a proper object of removal within the poor laws. But, consistently with this order, the party might have been a single woman with child, worth 10,000l., or she might have given the most ample security to the parish against any charge which could be thrown upon them. The statute in question first gives the general rule, that no persons shall be removed before they are actually chargeable. It then says, that single women with child shall be deemed and taken to be actually chargeable, within the true intent of the act. But still the justices ought to draw the conclusion that she is within that general rule, otherwise every single woman with child, whatever might be her substance, might be removed by the parish officers. Being unmarried and with child, such a person is presumptively chargeable, from the strong probability of the fact that she must be so; but there may be circumstances, such as the substance of the party, or the giving a complete indemnity to the parish, which may exclude that presumption. Now every circumstance of that sort might have existed in this case, and yet the order, as it is framed, be true. In Rex v. Diddlebury, the justices deemed her to have become chargeable; but she could not have been deemed to be chargeable, if those circumstances had existed in her instance. It ought to appear by the order that the justices have exercised their judgment upon the matter, and repelled the existence of such circumstances by the adjudg ment that she was chargeable, in order to shew that she was a proper object of removal within the meaning of the law. Orders quashed. [See the proper form of order of removal in this case, post, appendix of forms.] Rex v. Diddlebury, 9 East, 398. Upon complaint, “That Ann Evans, on stat. 35 Geo. 3, single woman, had come to inhabit, &c., &c., and is, by being pregnant, deemed to have become chargeable to the said parish of T." two justices, "upon due proof made thereof, as well upon the examination of the said Ann Evans upon oath, as otherwise, and likewise upon due consideration had of the pregnant, deemed premises, did adjudge the same to be true, and that the lawful settlement, &c. &c." The sessions, upon appeal, found specially, that the pauper Ann Evans, being a single woman legally settled in D., and becoming actually chargeable to T., within the meaning of the 35 Geo. III. c. 101, s. 6, by being pregnant with a child who had since been born a bastard, was removed to have become chargeable, &c., is good. (a) See observations on this case, ante, 717. |