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3. Evidence of

1817, a woman,

enter into the married state, and, therefore, wherever the name is fraudulently Secondly, Of assumed or concealed, that object is defeated, and the marriage is void. But evidence of selwhen the party has assumed a new name, not for any fraudulent purpose,

tlement, &c. but fairly and openly, and has, for a considerable period, used, and been known by, that name, then, it has been in several cases decided, a marriage settlement by under that name is valid. The name, in this case, does not appear to have marriage. been assumed for the purposes of the marriage, or for any improper purpose; and, under the circumstances of this case, at least as much notoriety was given of the person of the pauper, by the name of Lovick, as could have been given by that of Broune. The former was her maiden name, she had gone by it for many years, and was, therefore, more likely to be recog. nised by that name, than by the other. The mere fact that some one individual may be deceived, is not sufficient to annul the marriage; the name must be assumed fraudulently. That has long been the rule of construction upon this subject, and that rule is acted upon in the cases that have been cited. I am, therefore, of opinion, that this is a valid marriage, and that a different decision would be very likely to produce much mischief; for where a party has several names, one of them may be easily omitted by accident or mistake, and it would be a most grievous thing, if every marriage, solemnized under such circumstances, were to be deemed illegal.

Rex v. Inhabitants of Tibshelf, 1 B. f Adol. 190. On appeal against In the publicaan order of two justices, whereby Mary Betts, the wife of Joseph Betts, tion of banns, in (commonly called Wilson,) living apart from her husband, and her six

named Mary children, were removed from the parish of Mansfield, in the county of Not- Hodgkinson, was tingham, to the parish or township of Tibshelf, in the county of Derby; the called White, a sessions confirmed the order, subject to the opinion of this Court on the fol- by mistake in lowing case: The pauper and her busband (he having gained a settlement the register of in the appellant parish by the apprenticeship hereinafter referred to) were which she had married, in the year 1817, by banns, he by the name of Joseph Betts, and never gone by or she by the name of Mary White. The husband had been baptized as the been entitled to. son of John and Mary Betts

. Mary Betts was the daughter of Samuel was given to the Wilson, and her husband having absconded shortly after their marriage, her officiating clergy. son, the pauper's husband, was brought up by his maternal grandfather, and maen without any was always called by the name of Wilson, was bound apprentice by that lead, nor did any name, with the consent of his grandfather, and was never called or known individual, hav: by the name of Betts, or by any other name than Wilson, either before or the marriage, after his marriage with the pauper. The pauper, Mary, was the legitimate appear to have daughter of Job and Martha Hodgkinson, and was never called or known by Heid, that the any name, except Hodgkinson, till after her marriage; but in the register of marriage was her baptism she is described as “ Mary, the daughter of Samuel White and void. It might his wife.” It appeared that her mother was the daughter of Samuel and wise if (without Dorothy White, and that her father and mother resided with them at the any fraudulent time of her birth, and her mother's brother (who was called as a witness for intent there had the respondents) stated that he believed the entry in the register to have partial variation been a mistake of the clergyman who baptized her; and that he was the of the name, or person who discovered the mistake in the register previous to the pauper's suppression of marriage, it having been supposed that her baptism was omitted to be one christian registered.- Lord Tenterden, C. J., delivered the judgment of the Court. name has the This cause arose out of an order for the removal of Mary, the supposed one, which the wife of Joseph Betts, and her six children, to Tibshelf, the settlement party had ever of the said Joseph Betts ; and the question, whether that removal was right known by. or not, depended upon the validity of the marriage between Joseph Betts and the said Mary. If the marriage was invalid, the order of sessions was wrong, and we are of opinion it was invalid. This marriage was in 1817, and at that time the only act by which marriages were regulated, was the 26 Geo. II. c. 33, which was finally repealed, except as to all acts, matters, and things done under its provisions, by 4 Geo. IV. c. 76. Neither that act, nor the repealed act 3 Geo. IV. c. 75, contains any clause rendering former marriages by improper banns valid; and if s. 19 of the latter act could have been construed as having that effect, it could not have any operation after the repeal of that act. The act 26 Geo. II. provides, hy s. 8, that all marriages that shall be solemnised without publication of banns, or licence, shall be

3. Evidence of

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Secondly, Of null and void to all intents and purposes whatsoever. In the directions in evidence of set- that statute for the publication of banns, nothing is said as to the names of tlement, &c.

the parties, but s. 2, excuses the minister from publishing them, unless the

parties deliver in, in writing, their true christian and surnames. And in a settlement by series of decisions upon this statute, both in the ecclesiastical courts and the marriage.

Court of k'ing's Bench, it has been held, that the clear intention of the
legislature was, that the banns are to be published in the true names of the
parties, otherwise it is no publication at all. By these decisions these rules
are fully established: first, that if there be a total variation of a name or
names, that is, if the banns are published in a name or names totally different
from those which the parties, or one of them, ever used, or by which they
were ever known, the marriage in pursuance of that publication is invalid;
and it is immaterial in such cases, whether the misdescription has arisen
from accident or design, or whether such design be fraudulent or not. But,
secondly, if there be a partial variation of name only, as the alteration of a
letter or letters, or the addition or suppression of one Christian naine, or the
names have been such as the parties have used, and been known by, at one
time and not at another; in such cases the publication may or may not be
void ; the supposed misdescription may be explained, and it becomes a most
important part of the enquiry, whether it was consistent with honesty of
purpose, or arose from a fraudulent intention. It is in this class of cases
only, that it is material to enquire into the motives of the parties. The sub-
stance of these rules will be found in the judgments of Lord Stowell, in the
cases of Sulliran v. Sullivan (a), Frankland v. Nicholson (b), Pougett v.
Tomkins (c), and Mather v. Ney (d), and in the judgments in Rex v. Bil-
lingshurst (e), in this Court. The present case falls distinctly within the first
rule. Whether the alleged husband was sufficiently designated by the name
of Betts we need not enquire, as we are clearly of opinion that the woman
was never known by, and never used the surname of “ White," so as to make
that, in any latitude of construction," a true name" within the meaning of
the statute. Her family name, and that by which she was always known,
was Hodgkinsm. The only occasion upon which the name of White was
applied to her was in the register of her baptism ; she was not baptized by
that name, for the surname is never used in the baptismal ceremony; but
the name was entered in the register necessarily without her privity, and
it seems without that of her parents, and probably by a mere error of the
officiating minister, who appears to have mistaken her parentage, and con-
sidered her as the child of her maternal grandfather and grandmother. It
is impossible, whatever may be the disposition to favour parties who have
meant to act correctly, and from the best motives, to say that a surname so
entered can be the true name of the party to whom it is applied. It is,
doubtless, a great hardship upon these innocent persons to pronounce that
this marriage is void, but it would be a much greater inconvenience to the
public to alter the settled rules upon this subject, for the sake of preventing
a particular mischief. Order of sessions quashed.

4. Evidence in Settlements by Hiring and Service ().
4. Evidence in
settements by

The law relative to this mode of acquiring a settlement has been very hiring and ser fully considered (ante, 319 to 423). We have now only to consider the

evidence in support of this settlement

The evidence necessary to establish a settlement by hiring and serrice divides itself into three points ; I. That the person was hired in the capacity of a servant for the period of a year; II. That he served in that capacity for a year; III. That within the compass of a year he resided for forty days in the parish or place in which the settlement is claimed.

1. With respect to the hiring; the law does not require that it shall

vice,

1

(a) 2 Hagg. Consist. Rep. 254.
(6) 3 . & S. 261 ; 1 Phi'. Rep.147.
(c) 3 M. & S. 263.

(d) 3 M. &; S. 265.
(e) 3 M. & S. 256.
V) See ante, 319 to 423.

4. Evidence in

vice.
The contract.

be by express agreement, for if it can be implied from circumstances it Secondly, Of will suffice, and where it is express, it is not required that it shall be by con- evidence of settract in writing, as an oral contract, which is the most usual mode, is equally

tlement, &c. effectual.

An oral contract may be proved by any one who was present when it was settlements by made, whether it be the master, the servant, or any third person.

hiring and serIf, however, the contract was in writing, the writing, being the best evidence of the contract, must, if possible, be produced, and is subject to all those general rules of evidence already explained.

As to proof of handwriting or execution by the parties, or of its contents, when the instrument itself cannot be produced, which have already been explained, see ante, 302, 303.

The agreement for the hire of a servant, unless it be a deed, requires no stamp (a.) And as it has been made the depository of the terms of the engagement, nothing which took place before or at the time when the agreement was executed, and which was not committed to writing, can be received to add to, alter, or qualify the written agreement. Though an independent, subsequent agreement will have the effect of varying the terms of the former written contract; and is therefore admissible for this purpose (b.)

As already stated, if the instrument (ante, 801) be in the possession of the opposite party, notice should be given to that party or his attorney to produce it. This notice to the party or his attorney must be proved; if a verbal one, by the person who gave it, or by some one who was present when it was given ; if in writing, by a duplicate original of the notice ; this being done, if the party refuse to produce the instrument, secondary evidence may be given of its contents.

If the instrument is proved to be in the possession of the opposite party, who, after notice given, refuses to produce it, no proof of its execution is required (c). But on its being proved to be lost or destroyed, it must be authenticated in the same manner as if it were produced. [See ante, 797].

The terms in which the agreement is expressed, will determine whether Proofs of a genethe contract amounted to a hiring for a year. But it frequently happens ral hiring. that no particular terın or duration of service is mentioned. In such cases, the rule is that, if there be no fraud, and nothing in the situation of the parties to rebut the notion of their standing in the relation of master and servant, if the engagement be not a mere engagement to serve at the will of one or both of the parties, and provided there be nothing in it which shows that it was meant to be for less than a year; then the hiring is to be taken as a biring for a year,

The instances of general hirings, which amount to a hiring for a year in contemplation of law, are already given at length under the head of settlements, by hiring and service, (ante, 342). It must be remembered, that the apprehension of the parties as to the meaning of the contract, or that either of them could dissolve it whenever he pleased, cannot alter or qualify the legal effect of their agreement.

It may be expedient to repeat a few instances of hiring at will, as a contract, one of the conditions of which is, that the parties, or either of them, may determine it at any moment he pleases, is not in law a hiring for a year, although it should actually continue for a much longer period. Of this class are the following.

In Rex v. Christ's Parish in York (d), B. went to A. for meat and clothes, Instances of hiras long as he had a mind to stop.

ings at will. In Rex v. Trowbridge (e), the hiring was for as long a time as the pauper pleased.

(a) 23 Geo. III. c. 58, s. 4, and all (c) i Phill. Evid. p. 433. succeeding Stamp Acts, to the present (d) 3 B. & C. 459. 55 Geo. III. c. 184.

(e) Cited by Bayley, J., 3 B. & C. (b) Sturk.

on Evid. Vol. III. p. 462. 1006, note (1).

4. Evidence in settlements by hiring and service.

Secondly, Of In Rex v. Great Bowden (a), where B. was engaged by A. as his ostler, it evidence of set. was found by the sessions, that the servant could have left at any time he llement, 8c. 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 at A hiring in other respects general or indefinite, but for monthly or weekly monthly wages, is a monthly

wages, is only a monthly (6) or weekly hiring (c). And it cannot alter the hiring:

case by adding, that the servant is to be engaged for as long a time as his A hiring at week master and himself can agree; for this must necessarily be understood (11), and ly wages, is a weekly hiring

although a stipulation be added for an increase of wages during the harvest, only.

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 (f).

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 (9).” It is therefore a general hiring.

Instances of yearly hirings, as contra-distinguished from annual hirings, specific yearly which are construed to be for the year, are given in the earlier part of this hiring.

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 for fifty- A hiring three days after Michaelmas, to serve till the Michaelmas folfor a period con

lowing, with an agreement at the same time, that the servant shall give in taining 365 days three days after the expiration of that time, form together a hiring for an in leap year, is entire year (k). But a hiring for fifty-two weeks is not a good hiring for a not a good yearly hiring.

year; since a year consists of 365 days, 6 hours, and 49 minutes. So a hiring for a space of time, which includes 365 days, is insufficient when it

occurs in leap-year. Weekly wages do If there be any thing in the contract to import that a yearly hiring was hiring intended

intended, the reservation of weekly or monthly wages will not control it. to be for a year. 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 (?).

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).

Evidence of a

two weeks; or

not control a

(a) 7 B. & C. 249.

Yarmouth, 5 M. & S. 119. (b) Rei v. Clare, Burr, $. C. 819. (h) Rex v. Newstead, Burr. S. C.

(c) Rex v. Newton Toney, 2 T. R. 669. 453 ; Rex v. Pucklechurch, 5 Eust, 382. (i) Rer v. Syderstone, 2 Bott, 239.

(a) Rex v. Mitcham, 12 East, 351. (k) Seo Rer v. Milwich, Burr. S. C.

(e) Rer v. Dodderhill, 3 M. & S. 433. 243 ; Rer v. Lambeth, 4 M. & S. 315. (1) Rer v. Birdbroke, 4 T. R. 245.

(f) Rex v. Hanbury, 2 East, 423. (m) Rex v. Warminster, 6 B. & C. (8) By Holroyd, J., in Rer v. Great 77.

4. Evidence in

vice.

That the parties contracted for a yearly hiring may be implied upon its Secondly, of being proved that there has been an actual or constructive service for a year, evidence of set“ of such a nature as that usually performed by hired servants; this is pre

tlement, &c. sumptive evidence whereon to found a constructive hiring” (a).

But this presumptive evidence in support of a settlement by hiring and settlements by service may be rebutted, by proof of circumstances which lead to the con- hiring and ser. clusion, 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.X 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. 8. Adol. 207. Upon an appeal against an A pauper was 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 summer from six parish of Frome Selwood, in the county of Somerset, the sessions confirmed in the morning the order, subject to the opinon of this Court on the following case:

-The evening, and in pauper being settled at Frome Selwood, was hired by John Wright, a bed- winter from stead-maker, at Birmingham, on which occasion the following agreement morning to eight in writing was entered into between the parties : “ Articles of agreement, in the evening, made the 16th day of August, 1820, between John Bagnall, of Birmingham, to work for or in the county of Warwick, bedstead-maker, of the one part; and John Wright, of Birmingham aforesaid, bedstead-maker, of the other part. First, person: Held, the said John Bagnall doth undertake and agree, with the said John Wright, ceptive hiring, by these presents

, that he, J. Bagnall, in consideration of the wages herein- and no settlement after agreed to be paid to him by the said J. Wright, shall and will, from was gained by a

service under it. 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

hired for three years, to work in

serve any other

(a) By Lord Kenyon, in Rer v. St. Martin Leicester, ib. 674. Stokesley, 6 T. R. 757.

(d) Rer v. Inh. of Birmingham, 9 (b) Rer v. St. Andrews the Great, B. & C. 925. Cambridge, 8 B. & C. 664.

(e) Rer v. St. John, Devizes, 9 B. & C. (c) Rer v, Rorliston, ib. 668 ; Rer v. 896.

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