Secondly, Of evidence of settlement, &c. 4. Evidence in settlements by hiring and service. A hiring at monthly wages, is a monthly hiring: A hiring at week ly wages, is a weekly hiring only. Evidence of a specific yearly hiring. A hiring for fiftytwo weeks; or for a period containing 365 days in leap-year, is not a good yearly hiring. Weekly wages do not control a hiring intended to be for a year. In Rex v. Great Bowden (a), where B. was engaged by A. as his ostler, it was found by the sessions, that the servant could have left at any time he pleased, and that the master might have turned him away at any time. And upon this finding of the sessions, which the Court of King's Bench considered as a finding which arose out of the contract, it was decided that the hiring was a hiring at will. Nor are the following such hirings as can be construed to be yearly hirings for the purpose of gaining a settlement. A hiring in other respects general or indefinite, but for monthly or weekly wages, is only a monthly (b) or weekly hiring (c). And it cannot alter the case by adding, that the servant is to be engaged for as long a time as his master and himself can agree; for this must necessarily be understood (d), and although a stipulation be added for an increase of wages during the harvest, this does not make the hiring other than a weekly hiring (e) And the stipulation for a week's notice or a week's wages, in a weekly hiring, or, a month's notice or a month's wages, in a monthly hiring, the hiring is still a limited, and not a general hiring in each case (ƒ). But the effect of a weekly reservation of wages is destroyed, if there be an agreement for determining the service by a notice which embraces a longer period of time. Thus, if B. is hired to A. at weekly wages, and they have liberty to part at a month's notice, this is "not a weekly hiring, because of the month's notice; nor a hiring for a month, for then it would have been determinable only at the completion of each month's service, whereas this might have heen determined at the expiration of a month's notice, without regard to whether it expired at the month's end or not (g)." It is therefore a general hiring. Instances of yearly hirings, as contra-distinguished from annual hirings, which are construed to be for the year, are given in the earlier part of this work. It may be convenient to briefly recapitulate them. A hiring from Whitsuntide to Whitsuntide, even though the interval be less than 365 days, is a good hiring for a year (h). A hiring from the day after Michaelmas-day till the Michaelmas following, is a hiring for a complete year (i). A hiring three days after Michaelmas, to serve till the Michaelmas following, with an agreement at the same time, that the servant shall give in three days after the expiration of that time, form together a hiring for an entire year (k). But a hiring for fifty-two weeks is not a good hiring for a year; since a year consists of 365 days, 6 hours, and 49 minutes. hiring for a space of time, which includes 365 days, is insufficient when it occurs in leap-year. So a If there be any thing in the contract to import that a yearly hiring was intended, the reservation of weekly or monthly wages will not control it. As, for instance, if B. is hired at 3s. a week the year round, it is a good hiring for a year; this expression, the year round, being good evidence of its being so intended (1). But where A. asked B. what wages he should give him. B. asked 201. a-year. This A. refused to do, but said he would give 6s. a week for the winter, and 9s. a week for the summer; which B. agreed to take. Now here the circumstances of the case, A's refusal to give yearly wages, and B's consent to take weekly wages, clearly negative the supposition that a yearly hiring was intended (m)." (a) 7 B. & C. 249. (b) Rex v. Clare, Burr, S. C. 819. That the parties contracted for a yearly hiring may be implied upon its being proved that there has been an actual or constructive service for a year, "of such a nature as that usually performed by hired servants; this is presumptive evidence whereon to found a constructive hiring" (a). Secondly, Of evidence of set tlement, &c. 4. Evidence in settlements by hiring and ser vice. But this presumptive evidence in support of a settlement by hiring and service may be rebutted, by proof of circumstances which lead to the conclusion, that no such contract was entered into or intended; as where A. has employed B. out of charity, and there has been no previous contract between the parties, this must at once negative all idea of a hiring. Or suppose the parties are related, if there had been no previous contract between them and Relationship. service under it, it is clear that the relationship between them would afford a presumption against a constructive hiring. See Rex v. Sow, 1 B. & A. 178. Whether there has been a yearly hiring or not, is a question for the sessions, and where it was made a question of fact at the sessions, whether there had been a hiring and service for a year, in the appellant parish, and the sessions confirmed the order of removal, subject to the opinion of the Court of King's Bench, as to a settlement being gained there by hiring and service; it was held that this amounted to a finding, by the justices at sessions, that there was a hiring and service for a year in that parish, and that such finding ought not to be disturbed by the Court, if there were any premises to warrant it (b). And if the sessions find there was no general hiring, or draw the conclusion that there was an implied hiring for a year, the Court of King's Bench will not disturb such decision, if there appear any premises to warrant it (c). The contracts with artizans, and servants of that description, though in Working by the some respects different from the hirings of husbandry or domestic servants, piece. are yet sufficient to enable the party to gain settlements under them. But the servant must, in this case, place himself, for his whole time, under the controul of his master. Therefore, where a pauper was hired for a year, at weekly wages, to work from six in the morning to seven in the evening, with liberty to make as much overwork as he pleased, it was held that this was an exceptive hiring, and that no settlement was gained by serving under it (d). But if he agrees to obey all the rules and regulations of the factory, as well with regard to the hours of work as other particulars, and he is required to work twelve hours a day, but the rules are occasionally varied by the master, this is not an exception in the contract of hiring, and a settlement may be gained under it (e). The doctrine on this subject will be still further elucidated by the following case. Rex v. Frome Selwood, 1 B. & Adol. 207. Upon an appeal against an order of two justices, whereby John Bagnall, his wife and children, were removed from the parish of Birmingham, in the county of Warwick, to the parish of Frome Selwood, in the county of Somerset, the sessions confirmed the order, subject to the opinon of this Court on the following case:-The pauper being settled at Frome Selwood, was hired by John Wright, a bedstead-maker, at Birmingham, on which occasion the following agreement in writing was entered into between the parties: "Articles of agreement, made the 16th day of August, 1820, between John Bagnall, of Birmingham, in the county of Warwick, bedstead-maker, of the one part; and John Wright, of Birmingham aforesaid, bedstead-maker, of the other part. First, the said John Bagnall doth undertake and agree, with the said John Wright, by these presents, that he, J. Bagnall, in consideration of the wages hereinafter agreed to be paid to him by the said J. Wright, shall and will, from the date hereof, for and during, and unto to the full end and term of three years from thence next ensuing, and fully to be complete and ended, work (a) By Lord Kenyon, in Rer v. Stokesley, 6 T. R. 757. (b) Rex v. St. Andrews the Great, Cambridge, 8 B. & C. 664. St. Martin Leicester, ib. 674. (d) Rer v. Inh. of Birmingham, 9 B. & C. 925. (e) Rex v. St. John, Devizes, 9 B. & C. (c) Rex v. Rorliston, ib. 668; Rer v. 896. A pauper was hired for three years, to work in to seven in the summer from six in the morning evening, and in winter from morning to eight in the evening, and he was not serve any other person: Held, ceptive hiring, seven in the to work for or this was an ex and no settlement was gained by a service under it. Secondly, Of evidence of settlement, &c. 4. Evidence of settlement by hiring and scrvice for and serve the said J. Wright, in the business and employment of a bedstead-maker, and in such particular branches thereof, as the said J. Wright shall from time to time think proper to employ him. And also that he, the said J. Bagnall, shall and will, from time to time, during the continuance of the aforesaid term, to the best of his power and capacity, make, manufacture, and complete such goods, as shall from time to time be given or delivered to him, or which he shall be requested to make. And also that he, the said J. Bagnall, shall work from six o'clock in the morning to seven in the evening in summer, and from seven in the winter to`eight o'clock in every working day during the said term, and shall not, nor will, during the said term, work for or serve any other person whomsoever; and the said J. Wright, in consideration of such work and service, doth hereby undertake and agree with the said J. Bagnall, to find him full employment during the said term, and to pay him on Saturday night, in every week, for the first year 7s., the second year 8s., and the third 9s." The pauper stayed in Wright's service in Birmingham for a year under the above agreement. The question for the opinion of the Court was, Whether or not the pauper gained a settlement in Birmingham, by the hiring and service above-mentioned. Bayley, J. The rule is, that if a party contract generally to serve in a particular trade, though he may be bound to work only during the usual hours of work in that trade, yet by so working he will gain a settlement. But if it be made part of the bargain, that the person hired shall serve for specific hours only, then the relation of master and servant does not subsist out of those hours, according to the maxim, expressio unius est exclusio alterius, and that is an exceptive hiring. In Rex v. Buckland Denham (a), there was an express exception in the contract; the pauper was hired as a shearman, to serve for five years, to work shearman's hours only. The same observation applies to Rex v. Kingswinford (b). The hiring there was for seven years, to work for thirteen hours in the day (Sundays excepted). Rex v. Birmingham (c) goes further than either of those cases. The pauper there was hired for a year, to work from seven in the morning till seven in the evening, with liberty to make as much overwork as he pleased; and as it was optional in him to do overwork or not, and as he might refuse to work more than thirteen hours, the Court held that there was an exception in the contract limiting the control of the master to the specific period of time therein mentioned. In the case of Rex v. North Nibley (d), the terms of the hiring were the same as in the present case. They do not admit of the distinction contended for with regard to the difference between serving and working. There the pauper was hired as a colt shearman, to work twelve hours each day, and that was held to be an exceptive hiring, upon the ground that the servant, to gain a settlement, must be under the control and coercion of the master the whole time of service. Now, in this case, although the servant could not have worked for any other master out of the stipulated hours, he might have worked for himself, or, at all events, might have refused to execute during those hours any commands of his master in his business. This, therefore, was an exceptive hiring, and no settlement was gained by the service under it.—Littledale, J. I thought in Rex v. St. John, Devizes, and I think now, that if the case were res integra, an engagement to work thirteen hours in the day ought to give a settlement, being all the work that could be reasonably exacted. But it appears to me, that the authorities are conclusive in favour of the finding of the sessions.-Parke, J. I think this case is governed by the principle to be collected from Rex v. Birmingham. And it is to be observed that the agreement is not simply for service, but for service in a particular trade, so that the exception in the hours of working was an exception of the very thing which was the subject-matter of the contract of hiring. Order of sessions confirmed. In all cases, the ground-work of the presumption, in favour of a yearly hiring, is that the service must be one in which hired servants are usually engaged. But, with respect to workmen by the piece, unless there be some express stipulation, binding him to remain a whole year in such an employ, it seems very doubtful whether the law will impose such an obligation on him; that is, it seems very doubtful whether the law will consider him as a hired servant. Accordingly, in all the cases where the wages are stated to be paid by the piece, and settlements adjudged to have been obtained, it will be found that the workmen have been expressly hired for a year (a). And in a case, where the hiring was not for a year, Lord Mansfield says, "This is the case of a workman hired to work by the piece. It is not like any of the cases where there was a hiring for a year. Indeed, hiring in general and indefinitely gives a presumption of a hiring for a year, where the nature of the service and subsequent facts concur to render it probable that it was so meant. But the nature of the present service is quite otherwise" (b). The general rule that the hiring must be for a year, either actual or implied, does not yield to any particular customs as to hiring which may prevail in different parts of the kingdom. But if B. lives with A. a full year as a servant, and nothing is known of the time for which he agreed, or that he agreed for any stated time at all; perhaps a custom of the country to hire half-yearly (c) cannot be permitted to prevail against the implication of law that this, as a general retainer, is a retainer for a year. If, too, the custom of the country be for servants to go into and leave their places at some particular time, the fact of a servant quitting at that precise time, may throw light upon the hiring which was otherwise a general and indefinite one. For instance, suppose B., on the 31st of December, hires himself to A. for 81., without specifying any time, and quits the place two days after Christmas in the following year, receiving the whole of the wages; that being the usual time that servants, in that part of the country, go into and leave their places. Now the fact of B.'s leaving his place at the time here supposed, tends to show that the term of service contemplated by A. and B., in their contract, was less than a year, and that the contract had arrived at its termination before a year had expired. This was the construction put, by the Court of King's Bench, upon a hiring and service, under the circumstances above supposed. It being, however, expressly found by the sessions, that there was a hiring for a year, the Court thought themselves bound by that finding (d). Having stated a few of the instances which most frequently occur in practice, it remains to be observed, that whatever state of facts tends to the same conclusion, may be laid as a foundation to support the presumption of a yearly hiring. It is for the magistrates to determine whether the proofs are sufficient for that purpose. Secondly, Of evidence of settlement, &c. 4. Evidence in settlements by hiring and ser vice. Custom of the half-yearly. country to hire It must next be established in proof, that the servant served for a year, Proof of the sereither in fact or in law. A service in fact is proved, by showing that the servant did not, at any time during the year, absent himself from his post. vice for a year. ed to have been permitted. To prove a service in law, it seems to be sufficient to show that the ser- What is presumvant was in the service at the two termini, the beginning and the end of his year. For any intermediate absence will be presumed to have been, in some way, sanctioned by the master, unless the other side can show that at the time of such absence the contract was dissolved. If the servant was not in the actual service of the master at the commencement of the year, or for any period of time at the end of the year, (a) Rex v. King's Norton, 2 Bott, 209; Rex v. Birmingham, Doug. 333; Rex v. Coltishall, T. R. 193; Rex v. Martham, 1 East, 239; Rer v. Burbach, 1 M. & S. 370. VOL. IV. (b) Rex v. St. Peter's in Dorchester, 1 Bla. Rep. 443. (c) As stated in Rex v. Lowther, 2 Pott, 238. (d) Rex v. Tyrley, 4 B. & A. 624. GGG Secondly, Of evidence of settlement, &c. 4. Evidence in settlements by hiring and service. Of dissolution of the contract. Consent is to be proved, on the part of the master. What amounts to a consent to dissolve the contract on the part of the servant. By there being sufficient cause of complaint. By a justice of peace. By absence of servant. then it must be proved that so much of the service was dispensed with. Now, as the service is in law considered as dispensed with, unless the contract of hiring was dissolved, the proofs by which it may be made to appear that the contract is no longer on foot, must be considered. A contract of hiring may be dissolved by the consent of the parties:-by a justifiable cause of complaint on the part of one of them;-by the authority of magistrates;-or by the wrongful act of the servant, in absenting himself up to the expiration of the term. Where the dissolution is by consent of both parties, it will show the master's consent; if he tells his servant that he may go where he likes (a), or that he will not employ him any longer (b), or if he hires another person into the servant's place (e), and still more, if he dismisses the servant (d), turns him out of doors (e), or the like (f); and nothing more is wanting to make this a complete dissolution, but an acquiescence on the part of the servant. In the next place, if the servant has declared or evinced a wish to leave the master's service, and the master, in consequence, pays the servant his wages, either the wages for the whole year, or so much only as he thinks due; and more especially, if he is instrumental in enabling the servant to make a contract with another master (g); he does that which releases the servant from his service. A wrongful absence on the part of the servant gives the master the option of continuing or dissolving the contract. If he takes the servant back again without making a new agreement, he thereby purges the absence and continues the contract. If, on the other hand, he refuses to take the servant back again, and proceeds to discharge him, such refusal and dismissal are all that is wanting to a complete annihilation of the contract (h). Or if the master, upon taking him back, makes a new agreement, the necessary inference is, that he refused to receive the servant under the former agreement and elected to dissolve it, as he had clearly a right to do. Although absence for an excusable cause cannot, in itself, be evidence of an intention to abandon the service, this intention may be shown by other circumstances. As, if before the end of the year the servant enters upon a new service (i). Or if the servant, some time before the end of the year, falls ill, and goes to his friends or to an hospital, from whence he sends to his master for his wages and clothes; it is reasonable to infer that he intended to quit the service; and accordingly it has been so determined (k). And this inference may be drawn, notwithstanding that the whole year's wages have been paid (1). The second mode of dissolving a contract, namely, by a justifiable cause of complaint, on the part either of the master or of the servant, is held to be a question of law; and has, therefore, been considered under the head of this species of settlement. With regard to a dissolution by the authority of a justice of the peace. such dissolution must be proved by the production of the discharge itself under his hand and seal, and by proof of his signature in the ordinary way. To prove the dissolution of a contract of hiring, by the wrongful absence of the servant up to the end of the stipulated term of service, the time at which the servant went away, and his continuing away up to the end of the term, together with proof of the reason for his absence, must be shown by the master, or some other person cognizant of the facts. The earlier cases upon dispensations of the service are exceedingly (e) Rer v. Grantham, 3 T. R. 754. (f) Rex v. Leigh, 7 East, 539. (g) Rex v. Thistleton, 6 T. R. 185. (h) Rex v. Clayhydon, 4 T. R. 100. (i) Rex v. Maidstone, 12 East, 550; Rex v. Mildenhall, 12 East, 482. (k) Rex v. Whittlebury, 6 T. R. 464. (1) Rex v. Sudbrooke, 4 East, 356. |