1827. expense. Then they are to be kept open, " either as public

DE BEAUVOIR or private ways." Unless that is to be done according to

the discretion of the trustees, and unless they have a discretionary power of doing it, it can never be done at all; for there is no mode of converting a public road into a private way, except by an act of parliament. Then, here the trustees, in the exercise of their discretionary power, have ordered the old road to be stopped up entirely, and to be given to the plaintiff; the consequence of which is, that it has ceased to be a public road, and has become the property of the plaintiff, and the defendants having trespassed upon it, are liable in this action. The 3 Geo. 4, c. 126, giving no appeal to the sessions, left the judgment of the trustees in these cases final and conclusive. If that was a defect, it has been remedied by the 4 Geo. 4, c. 95, which gives to parties aggrieved by the trustees a remedy by appeal, and that remedy the defendants might have adopted. For these reasons, I am of opinion, that the plaintiff in this case had a right of action for the trespass committed by the defendants, and that the verdict which he has obtained ought not to be disturbed.

HOLROYD, J., concurred.

،،

LITTLEDALE, J.—I am entirely of the same opinion. The whole tenor of the language used in the exception is such as shews decisively that it was intended to vest a discretionary power in the trustees. It excepts out of the exception roads, " which may be deemed proper to be kept open either as public or private ways." May" is discretionary; and if the clause had been meant to be compulsory, the word must would have been used, which would have rendered the passage nonsense. "Deemed" is discretionary; both those words imply necessarily an exercise of judgment. "Either as public or private ways," must mean that the trustees are to decide in which of two characters the road is to be kept open; and "for the use of

1827.

v.

any inhabitant at large, or any individual," that they are to decide to which of two purposes the road is to be DE BEAUVOIR applied. This construction is the more proper and convenient, because it reconciles s. 86 with the subsequent s. 88, which gives the trustees a discretionary power in express

terms.

Judgment for the Plaintiff.

WELCH.

The KING v. the INHABITANTS of SANDHURST.

Two Justices, by their order, removed Thomas Slark, Sarah, his wife, and their four children, from the parish of East Hampstead, to the parish of Sandhurst, both in the county of Berks; and the sessions, on appeal, confirmed the order, subject to the opinion of this Court upon the following case:

The pauper one of the suwas hired by perintendents of the Royal Military College at Sand

hurst, at 16s. a week, and two

suits of clothes

per annum ;

month's notice

be dismissed

exempt from

The pauper, Thomas Slark, being unmarried, and without any child, was hired on the 13th May, 1813, as a servant to give a on the establishment of the Royal Military College, at if he wished to Blackwater, in the parish of Sandhurst. By a warrant leave, but to under the hand of his late Majesty, dated 27th May, 1808, (for misconall matters relating to the interior regulations and economy time. The duct), at any of the establishment, were placed under the cognizance of college is a collegiate board, consisting of the governor of the college, the lieutenant-governor, and several other persons, in the warrant mentioned. Certain regulations for menservants hired for the college, are entered in a book kept for that purpose, containing, among other things, the following rules:-"The servants are to obey all orders they may receive from the officers of the institution, the staffserjeants, and the purveyor. They are allowed wages, at

poor rates;

and pays no servants. The pauper re

taxes for its

mained a

year in the service, boarding and lodging in the college:Held, that he acquired a

settlement in Sandhurst.

1827.

REX

บ.

SANDHURST.

the rate of 16s. per week, with one dress, and one undress suit of clothes per annum, subject to such stoppages as may be ordered, but which shall be paid up every three months, after deducting for the charge of breaking of furniture, crockery, &c., belonging to the college, that may have been committed during that period. Should a servant wish to leave the college, he must give one month's previous notice; but should the college see reason to be dissatisfied with his conduct, it retains the power of dismissing him at a moment's notice." The customary mode of hiring such servants for the establishment, was, by reading the rules over to them at the time of hiring them, and requesting their signature to them, in witness of their agreement to serve on the terms prescribed. The pauper was hired by Colonel Butler, the lieutenant-governor, one of the officers constituting the collegiate board, by whom the servants were usually hired. He heard the above regulations read at the same time, by the quarter-master, and signed his assent in the usual manner, by subscribing his mark to them. He remained in the service, and received his wages, as above agreed on, for two years and a half, before he married; he lived and slept in the body of the college, and was employed in making the beds of two of the gentlemen cadets, assisting in sweeping and cleaning the rooms, and various other occupations for the service of the college, exclusively, as directed by the officers of the college. He was discharged with several other public servants of the college, without notice, in the year 1819, on a reduction of the college establishment, by order of government. The body of the college is exclusively appropriated to public uses, for study and lodging of the gentlemen cadets, and is exempt from poor rates, as being a public building. The pauper, and 32 other persons, were employed in the same service, not as the private servants of any individual, but as the public servants of the establishment, to obey, generally, the officers of the college, and they were paid by the pay-serjeant,

out of the funds supplied for the maintenance of the college, and they were not returned, paid, or assessed as servants, to the collector of the taxes. The pauper afterwards married his present wife, and the children removed with him were the issue of that marriage. The sessions found that there was a general hiring sufficient to confer a settlement, if a settlement could be acquired by such hiring and service in a public establishment like the college. The question for the opinion of the Court is, whether the pauper acquired a settlement by such general hiring and service in the college.

Shepherd and Talfourd, in support of the order of sessions. The sessions came to the right conclusion. All the requisites of the statute 3 and 4 W. & M., c. 11, s. 7, are to be found in the contract in this case; for here is an unmarried person, not having child or children, having been lawfully hired into a parish for a year. [Bayley, J. Was the pauper hired for a year; that is, was there a good general hiring? The case finds, that the college retained the power of dismissing any servant at a month's notice]. But the case states, that the sessions found that there was a general hiring sufficient to confer a settlement, if a settlement could be acquired by such hiring and service, in a public establishment like the college. The sessions, therefore, have decided the question of fact, whether there was a general hiring; and have referred to this Court only the question of law, whether service under such a hiring, with such a body as the college, can confer a settlement. This Court, therefore, cannot take the first question into consideration; it is a question of fact, decided by the sessions, and upon which their decision is conclusive. Then the second question, though it is one of some novelty, and of great importance, is not, when properly examined, one of much difficulty. There seems to be no good reason why a public body, like the college, should not have the same power of contracting as any individual has.

1827.

The KING

v.

SANDHURST.

1827.

The KING

υ.

SANDHURST.

Whether the service is performed to one master or two, or more, appears wholly immaterial; for the question in all these cases depends, not on the nature and character of the master, but on the nature and character of the servant and the service. [Littledale, J. Whom could the servant in this case have sued for his wages, if they had been left in arrear?] He might clearly have sued Colonel Butler, by whom he was hired, who was the acting superintendent of the college, and by whom the servants were usually hired. But, even if he could not maintain any action for his wages, it by no means follows that he could not acquire a settlement by his service. There are some cases in which it has been expressly provided by act of parliament, that the servants of public establishments shall not acquire settlements by their services; as by the 52 Geo. 3. c. 72, an act for the better cultivation of timber in the forest of Alice Holt, in the county of Southampton, which expressly provides that no person shall, by hiring and service, either for the preservation of woods and plantations, or of the game in the said forest, gain thereby any settlement in the parish of Binstead, in which the forest is situate; and many other instances of the same kind might be mentioned (a). Now the inference deducible from the fact of such provisions being made by the legislature, with reference to some other public establishments, and not with reference to this college, which is regulated by an act of

(a) As 33 Geo. 3, c. 54, s. 24, which provides, that no apprentice or servant to any member of any Benefit Society, residing in any parish, under that act, shall on that account, acquire a settlement; 13 Geo. 2, c. 22, s. 7, which provides, that no child, nurse, or servant, received, maintained, educated or employed within the Foundling Hospital, shall gain any settlement in the parish or place where such hospital is situate, by virtue of

such their reception, continuance, hiring or residence, in such hospital; and 9 Geo. 3, c. 31, s. 8, which provides, that no person who shall be admitted into the Magdalen Hospital, as a penitent prostitute, or who shall be employed therein as an hired servant, shall, by reason of such admittance or service, gain a settlement in the parish in which the said hospital is, or shall be si

tuate.