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perplexing, as it was not till a comparatively recent period that the sessions
were induced to abandon the practice of stating the evidence in such cases,
for the Court of King's Bench to determine whether there had been a dis-
pensation or not, instead of themselves finding that as a fact in the case.
In Rex v. Hardhorn with Newton, 12 East, 56, Bayley, J., said, " It would
be much better if the sessions would decide the fact, whether of the dissolu-
tion of the contract, or of the dispensation of the service, and abide by their
decision, without sending up a case with the evidence on which they formed
their conclusion." In Rex v. Mildenhall, 12 East, 482, the Court of King's
Bench were of opinion that it was for the sessions to decide upon the evidence
in the case; and they having decided that it was a case of dissolution, the
Court could not say that it was a wrong conclusion. In Rex v. Maidstone,
12 East, 554, Le Blanc, J., said, That upon the facts of the case, the sessions
might have found it to be a dispensation. But he added, that he could not
say that the sessions had done wrong, though he thought they might have
drawn a different conclusion. And in the course of his judgment he says:
"according to the cases it is always a question for the sessions to decide,
Whether the consent of the master to the servant's leaving his service a few
days before the end of the year for a particular purpose, but paying him his
whole year's wages, be a dispensation of the service for the remainder of the
year, or a dissolution of the contract?" And finally, in Rex v. Bottesford, 4
B. & C. 84, Abbott, C. J., said, "I perhaps should not have interfered to set
aside the decision of the sessions, if they had drawn a different conclusion;
but I should not have been so well satisfied with it." And Bayley, J., said,
"I think this was a point for the decision of the sessions; and I wish the
justices at sessions would understand that it is their duty to determine ques-
tions of fact, and not to send them to this Court for their decision."

It seems now to be settled, that, on questions of pure fact, the sessions
should decide for themselves; and that the Court of King's Bench will, in
all cases, except perhaps those which are glaringly wrong, confirm the con-
clusion at which, by their order, the sessions appear to have arrived.
The question is sometimes one of fact mixed with law. In Rex v. Cor-
sham, 2 East, 303, the circumstances stated by the sessions were these:-A
fortnight or three weeks before the end of the year, the servant, in conse-
quence of a dispute with the master, and of being maltreated by him, went
away to his father's house. In the course of the following week, he returned
to his master's house, and received the whole of his wages. His master
wished him to stay, but he refused, and went back to his father's. Now
in this case the sessions, by finding it to be a dispensation, drew a wrong
conclusion in point of law from the facts they had themselves found.
For if the servant was maltreated by the master, he had perhaps a right,
in law, to demand to be discharged. By refusing to serve out the year, he
showed his determination to act upon this right. And if he had not in
strictness this right, he still clearly showed that it was his intention and his
wish not to serve out the remainder of the year. The master, on his part,
acquiesced, and neither laid any claim to the residue of the year's service,
nor did any act to show that he still considered him as his servant. Upon
the bare statement of the facts there is clearly a dissolution of the contract,
either by the act of one party who had a right to insist upon it, or by the
act of both in consenting to it. And the Court of King's Bench did in
this case no more than put the true legal construction upon those facts.

Sometimes the facts present a question of law, upon which it depends whether there has been a dispensation or dissolution of the contract, as where the master, about a month before the end of the year, went before a justice of peace with a complaint against the servant. The justice, under the stat. 20 Geo. II. c. 19, s. 2, committed the servant to the house of correction for one calendar month, which did not expire till after the end of the year. The sessions thought this was not an abiding in the service for a whole year. The Court of King's Bench determined that it was; that the contract was not dissolved; and that the relation of master and servant continued, notwithstanding the imprisonment. The object, in sending up this

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Secondly, Of evidence of set tlement, &c.

4. Evidence in settlements by hiring and service.

What is suffi

cient proof of a dispensation.

Cases of dispensation.

case to the Court, was to ascertain the legal effect of an absence occasioned by an imprisonment under this statute (a).

Questions of dispensation are exceedingly various in their nature, and in the degree of difficulty which they present. The best rule that can be given for solving them is to bear in mind, that if the absence of the servant is not to be ascribed to a dissolution of the contract, by consent of the parties; or the election and act of one of them having a justifiable cause of complaint; or by a magistrate, under the authority of acts of parliament, or by wrongful absence up to the expiration of the term of service, then it is only to be accounted for on the notion of the master having dispensed with so much of the service. It is not easy to state any certain or satisfactory tests for determining questions of this nature, but the leading cases on the subject are briefly as follows (b).

Rex v. Goodnestone, Burr. S. C. 251. Three weeks before the end of the year, the servant asked the master's leave to go to the herring fishery. The master consented to his going, if he could get a man to do his work. The servant procured a man to do his work, and paid him for it. He continued upon the herring fishery till after the end of the year. The sessions thought this a dissolution of the contract. The Court of King's Bench decided that it was a dispensation; and Forster, J., said, that as the master had the benefit of the contract during the whole year, so ought the servant to have it also.

Rex v. Frome Selwood, Burr. S. C. 565. The servant, within ten days of the end of the year, told his master he did not wish to be settled in King's Weston, and asked his leave to go and visit his relations; to which the master consented. The sessions thought it a dispensation, and so did the Court.

Rex v. Bray, Burr. S. C. 682. The day before the year expired, the servant asked leave to go to see his relations before he went to another service. The master gave him leave, deducting one shilling from his wages for that day; told him that if he quitted the service before Michaelmas-day, there might be a dispute about his settlement, and desired him to come back. The servant went away and did not return. This was considered a case of dispensation, both by the sessions and the Court of King's Bench.

Rex v. Potter Heigham, Burr. S. C. 690. The day before the end of the year, the servant desired his master to discharge him, saying, that as he had let himself for the next year to a person in a distant place, and was remov ing further from his friends, he wished to go and pass that day with them, and requested to have that time to himself to spend with them. To this the master consented, and he was accordingly discharged, receiving the whole of his wages, except sixpence, which he allowed to his master for that day. This was decided by the sessions to be a dissolution of the contract; by the Court of King's Bench to be a dispensation of the service.

Rex v. Richmond, Burr. S. C. 740. B., the servant, had married one of his master's maids, who was to quit the service thirteen days before B's year would expire. The master, at that time, said to B., that he supposed as his wife was going away, he (B.) would like to do so too. B. answered that he should like it if it was agreeable to the master. The master agreed, and B., in consequence, went away at that time, thirteen days before the expiration of the year, receiving his whole year's wages. This was considered a case of dispensation both by the sessions and the Court of King's Bench. Aston, J., thought that the circumstance of the whole year's wages being voluntarily paid by the master, confirmed the master's acquiescence and approbation. And Ashhurst, J., considered the payment of the whole wages as a proof of the master's consent to his absence.

Rex v. St. Philip, Birmingham, 2 T. R. 624. B., the servant, eight

(a) Rex v. Hallow, 2 B. & C. 739.

(b) See this subject ably discussed in Gambier on Settlements.

Secondly, Of evidence of settlement, &c.

days before the expiration of the year, gave the master warning that he would leave the service at the end of the year. The master, on having hired another servant, by reason of some impatient behaviour on the part of B., discharged him, and paid him the full wages, which B. accepted, and quitted the service, declaring, however, that he would have served the year settlements by out if the master would have let him do so. The Court of King's Bench hiring and serreversed the decision of the sessions, and adjudged this to be a dispensation; the dismissal being a wrongful act, which was submitted to, but not agreed to by the servant.

Rex v. St. Andrew's, Holborn, 2 T. R. 627. Four or five days before the end of the year, the master having become a bankrupt, and a messenger having taken possession of the house, the mistress discharged the servant, paying her the whole year's wages. The sessions thought this a case of dissolution, but their order was quashed in the King's Bench.

Rex v. Sutton, 5 T. R. 657. The servant, being deprived of his reason, forty days before the end of the year, was taken home by his father, who received the wages for the whole year. The servant continued insane during all those forty days. This was held to be a dissolution by the sessions, a dispensation in the King's Bench.

Rex v. St. Mary, Lambeth, 8 T. R. 236. A., the master, being obliged to leave his house, told his servants that he had no longer any occasion for their services. The circumstances of A. obliged him to take this step, otherwise he would have kept the servant B., and she, on her part, was unwilling to leave the service. She had served a year all but seven days. A. paid her the whole year's wages, and she did not engage in any other service till the end of the year. The sessions held this to be a dispensation, and their decision was confirmed in the King's Bench.

Rex v. Hardhorn with Newton, 12 East, 51. The servant, three weeks before the end of the year, was wrongfully and forcibly turned out of doors by her master. The next day she came for her clothes and carried them away, together with the wages, which the master insisted were the full wages of the year, she claiming a larger sum. At the time she came for her clothes, she offered to stay to the end of the year, but the master would not let her. This the sessions very properly adjudged to be a case of dispensation, and the Court of King's Bench agreed with them.

Bex v. Barton upon Irwell, 2 M. & S. 329. The servant, after two months of the year had expired, being then a married man, was taken before a magistrate on the complaint of the master, and committed to the house of correction for one month. When he had been in custody nine days, the master procured his discharge; and he returned immediately, without any new terms being mentioned, and served his master as before. He received no wages for the time he was in custody. This the sessions considered a case of dissolution. But the Court of King's Bench quashed their order, being of opinion that it would be against the policy of the law, if the servant, by his own act of delinquency, should have the power of dissolving the contract; that the justices have that power (by stat. 20 Geo. II. c. 19), but had not exercised it; that the master indeed had an election to avoid the contract, but that he had made his election to continue the pauper in his service, which it was in his power to do.

Rex v. Polesworth, 2 B. & A. 483. The servant, a few days before the end of the year, having asked his master's permission to go to a fair to hire himself, and being refused, went there without his leave. The master, upon his return, said he would employ him no more, and would not pay him his wages. The servant went away from his master's house, and, three days afterwards, summoned his master before a magistrate. When before the magistrate, the servant said he was willing to serve his time out, but the master said he would not take him again. The magistrate then directed the master to pay the servant his whole wages, which he took and was satisfied. He did not hire himself into a fresh service until the year had expired. This was adjudged to be a dispensation both at the sessions and in the King's Bench.

4. Evidence in

vice.

The forty days' residence in the parish sought to be charged with the Residence for

Secondly, of evidence of settlement, &c.

4. Evidence in settlements by hiring and service.

forty days how to be proved.

Of the mode of proving a certificate.

Delivery of the certificate how proved.

The time of delivery will be presumed to

coincide with the

time of the per-
son's going into
the parish.
If the certificate
cannot be pro-

pauper, may be proved either by the servant, or by any one who has personal knowledge of it.

But if such residence took place in a parish to which either the master or the servant came with a certificate, it is for the party opposing the settlement to prove that the parish was, at that time, protected by a certificate. This is done by production of the certificate, if possible; and if not, then to prove its contents; but whether produced or not, its delivery must be proved. But, by the 3 Geo. II. c. 29, if it be a certificate made according to that act, it is to be received in evidence without proof of the particulars which it contains; if it comes out of the proper custody, and if produced by the parish to which it was originally granted, no further proof of custody is necessary. (a)

The delivery of the certificate, which is produced, may be either proved by direct evidence of the fact, as by showing that it was by the certificated man put into the hands of some officer of the parish for which it was intended; or it may be inferred, if the certificate is produced by that parish, or is proved to have come out of their custody.

As to the time of delivery, since the statute requires a delivery of the certificate at the time when the certificated man goes into the parish, (b) it will be presumed, until the contrary is shown, that it was delivered at that time. If the certificate is not produced, it must be shewn to have been in existence, and to have been delivered to the parish for which it was intended. Suppose an entry made in the books of that parish, stating the receipt of the certificate. Now this entry, being made by persons who had at the time ence and delivery an interest in the subject matter, cannot be evidence, either for themselves, or for persons claiming under them. The existence and delivery of the certificate cannot be proved in this manner.

duced, its exist

must be proved.

5. Evidence in settlements by apprenticeship.

The register secondary evidence.

But, suppose it is proved, that in the parish which is said to have granted the certificate, an order was made for granting such a certificate as the one in question. Suppose it is also proved, that the officers of the parish, in which the party is said to have lived under the certificate, declared they would not receive the party, unless he procured a certificate from the first parish; these, now, are circumstances which would warrant the inference, that a certificate had been granted and delivered.(c)

And any other state of circumstances, which would satisfy a reasonable mind that a certificate really had existed, and had been delivered, would be sufficient to authorise the same conclusion.

5. Evidence in Settlements by Apprenticeship.

[The law, as to settlements by apprenticeship, has been considered, (ante, 423 to 626.) With respect to the evidence, as an apprenticeship can only be constituted by deed, such a formal contract must be proved according to the rules already explained under the title of "documentary evidence."]

But, as it often happens, from the indentures being lost or destroyed, that it is necessary to resort to secondary evidence, the following cases will shew the principles and the practice which govern the Court of King's Bench upon such occasions.

By 42 Geo. III. c. 46, (ante, 441) overseers of the poor are directed to keep a book for entering the name of every apprentice bound out by them, and each entry is to be signed by two justices, according to a form given in a schedule; and by section 3, (ante, 442), it is enacted, That every such book shall be deemed to be sufficient evidence in all courts of law whatsoever, in proof of the existence of such indentures, and also of the several particulars specified in the said register, respecting such indentures, in case it shall be proved, to the satisfaction of the court, that the said indentures have been lost or destroyed.

(a) Rex v. Ryton, 5 T. R. 259; Rex v. Netherthong, M. & S. 337.

(b) So held by Lord Kenyon, in Rex

v. Wensley, 5 T. R. 154.

(c) Rex v. Debenham, 2 B. & 4. 185.

By sect. 2, a penalty is attached to the not providing such books. By sect. 5, a like entry shall be made when an apprentice is assigned, under 32 Geo. III. c. 57. (See the act, ante, 441.)

&c.

Rex v. East Knoyle, Burr. S. C. 151; 2 Bott, 644. The special case from the sessions in the part relating to this point, was as follows:-" And it appears to this Court, upon the evidence now given, that J. B. was bound apprentice to W. W., of East Knoyle, cordwainer, and that he served," &c. "But the indentures were not produced, neither did it appear to this Court, whether the duty of 6d. in the pound, directed to be paid by the 8 Anne, c. 9, was paid, or whether the indentures were stamped." It was objected that evidence not legal had been received, for parol evidence of an indenture had been received, which they state not to have been produced, and they give no reason for not producing it. And also, that it did not appear that the duty was paid, or the indentures duly stamped. But the Court over-ruled the objection, for it is stated, “that it appeared to them that he was bound, and that it is not necessary that this evidence should appear to us. Perhaps the indenture was lost; and in that case, could the justices receive no other evidence of the binding? And as to the duty and the stamp, they do not say the duty was not paid, or that the indenture was not stamped.

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Rex v. Long Buckby, 7 East, 45. Removal of the pauper from Long Buckby to Newport Pagnell, quashed. Case: The pauper, in 1774 or 1775, was bound apprentice to J. D., of Long Buckby, shoemaker, for seven years, for a premium of 12., which was paid, and the indenture executed by the pauper, his mother, and Dickens, the master, with whom the pauper served his full time, in Long Buckby. Only one indenture was executed, which, after seven years, was given to the pauper, and was proved to have been lost. For twelve years past, the pauper had resided at Long Buckby, during which time he had been often relieved by that parish, and had received town's money from it, which town's money is given away at Christmas to parishioners. No further evidence was given by the appellants. But the respondents proved, by the deputy registrar and comptroller of the apprentice duties, that it did not appear that any such indenture had been stamped with the premium stamp, or enrolled, from 1773 to 1805. But the sessions presumed that all had been rightly done.-Per Lord Ellenborough, C. J. The question before the justices was, Whether the presumption that all was rightly done, after the lapse of so many years, were sufficiently rebutted by the negative evidence of the officer; they thought not, and we cannot say they have done wrong, for the presumption of law is to be favoured: and against the negative evidence they may have set the possibility of an irregularity in the returns made to the office. Order of sessions confirmed.

Rex v. St. Helen's, in Abingdon, Burr. S. C. 292, 735; 2 Bott, 600. The evidence relating to the indenture was; Joan Hudson, the mother of Joseph Hutt, the father of the children removed, (who had absconded,) gave in evidence, that Joseph, her son, in 1733, "was bound apprentice to his grandfather for seven years; and that the indenture was delivered into the custody of W. H. his grandfather, as she had been informed by Joseph; she never saw the indenture, and knew nothing of it, but from the information of Joseph; it was reputed in the family that Joseph was his apprentice; and he was so described in the grandfather's will." Joseph served the grandfather five years in St. Helen's, under the indenture. The grandfather provided for Joseph during those five years, in clothes and necessaries; the grandfather died in 1738, leaving M. H. his widow, and John H. his son; application was made by the parish of St. Saviour, in December, 1748, to John, who then lived with his mother, in the house where the grandfather died, and where his goods and effects were, to know, whether he had in his custody any indenture of apprenticeship between William and Joseph, and Joseph said he could not find it. And here the enquiry stopped, as to him and all other persons. And this was the only evidence that the indenture of apprenticeship was lost. John Hutt gave in evidence that he was employed by his father, William Hutt, to draw an indenture between his father and Joseph, which he did, but not on stamped paper; and that after the death

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