parliament, is very strong, and shews conclusively, that there was no intention on their part to put the servants of the college upon a different footing, with respect to their competency to acquire a settlement by hiring and service in the college, from persons hired by private individuals. The college Tindal, S. G., Nolan and Stone, contrà. does not contribute towards the relief of the poor of the parish within which it is situate; it ought not, therefore, to burthen the parish, by bringing into it a number of persons who may afterwards become chargeable upon it. The Court are entitled to look into the whole case, for it is referred to them generally, and to entertain both the questions arising upon it, namely, was there a general hiring, and if so, did service under it confer a settlement? First, there was no general hiring here. The statute 3 & 4 W. & M., c. 11, s. 7, requires a lawful hiring, that is, that there shall be such a contract between the parties, as either is expressly, or may be considered by the law impliedly, as a contract for a year. It is of the very essence of such a contract, that it is reciprocal; that the one party shall be bound to retain, and the other be bound to stay, in the service, for a full year. There was no such reciprocity in this case; for though the servant, if he wished to leave the college, was bound to give a month's previous notice, the college retained the power of dismissing him at a moment's notice. This was, what has been termed, a unilateral contract; and under such a contract, it is impossible that any lawful hiring can take place. [Bayley, J. The college may have power to defeat the contract, under certain circumstances, before the year is out; and yet the contract may originally have been one for a year]. It is part and parcel of the contract, that the college may terminate it whenever they please; and that cannot be a contract for a year. It was a contract for a period less than a year, under which a general hiring cannot be presumed. [Bayley, J. The power of 1827. The KING บ. SANDHURST. 1827. The KING V. SANDHURST. the college to defeat the contract is very limited, it is only if they shall see reason to be dissatisfied with the servant's conduct, that they retain the power of dismissing him at a moment's notice: and I doubt, therefore, whether they were warranted in so dismissing the pauper, under the circumstances stated in the case.] But he could not possibly maintain an action against any person for wrongfully dismissing him, or even for arrears of wages; which proves that there is no person by whom he was lawfully hired, or with whom he stood, properly speaking, in the relation of servant. Secondly, even if there was a general hiring, still service under it, in a public establishment like the college, will not confer a settlement. In order to constitute such a contract as is required by the statute, the master must be a person resident within the parish where the service is performed; but though the individuals in whom the management of the affairs of the college are vested, are resident within the parish of Sandhurst, still there is not any one of them who can properly be called the master of the pauper, within the meaning of that statute. The law contemplated that the master should be a person having property and a stake in the parish; but all the property appertaining to this college is, by the statute 52 Geo. 3, c. 124, vested in the crown. The pauper, therefore, was not a servant in the legal or ordinary sense of the word; he rather resembled a soldier employed on civil service; he was not returned to the collectors of taxes as a servant; he was neither hired, nor treated, nor employed, as a servant in ordinary cases is; he must be considered rather as an officer of the crown, than as a servant, or at least as a servant of the crown, and not sui juris to adhere to the contract, or to abandon it, in the mode that servants in the general sense of the word are. BAYLEY, J. (after consulting with the other Judges).Upon the first point made in this case, we have none of us any doubt. We are all of opinion that there was what the law considers as a general hiring: a hiring for a year, with power on both sides to determine the contract before the expiration of the year; a contract defeasible, but not defeated, and therefore a good contract for a year. Upon the other point, we wish to take time for consideration, and to consult my Lord Tenterden, of whose opinion, as the question may be of some general importance, we are anxious to have the benefit. Judgment was now delivered by Cur. adv. vult. BAYLEY, J., who, after shortly recapitulating the facts of the case, thus proceeded.-Upon these facts two questions arose; first, whether there was such a general hiring as the law would construe into a hiring for a year; and secondly, whether service under such a hiring with the college, would confer a settlement. We have consulted my Lord Tenterden upon the subject, and I have the satisfaction to state, that his opinion is in unison with that of my learned brothers and myself, before whom the case was argued so that what I now say may be considered as the judgment of the whole Court upon the case. We are of opinion that the pauper acquired a settlement in the parish of Sandhurst. We think there was clearly a "lawful hiring for a year" within both the words and the meaning of the statute of William. It was part of the agreement, that if the pauper wished to determine the service, he was to give a month's notice; but that the college might dismiss him, for misconduct (which was not the ground of his dismissal), without any notice at all. The contract, therefore, was defeasible by either party, within a year, but it was not defeated; and the mere power to defeat a contract, will not render it less a contract for a year, if in its other circumstances it satisfies that description. It may be a defeasible hiring; but it is not less a hiring. It 1827. The KING v. SANDHURST. 1827. The KING บ. SANDHURST. was objected that the service being in a public establishment, would not confer a settlement. We think there is no weight in the objection. Hiring and service is a matter of a personal nature; and the question is, not by whom the servant is hired, but whether he is lawfully hired, and performs a year's service under that hiring. Here the pauper was lawfully hired into the parish, no matter whether by a public body, or a private individual, and performed a year's service under the hiring. He has therefore gained a settlement in the parish, and the order of sessions, adjudging him to have done so, must be confirmed. Order of Sessions confirmed (a). (a) See Rex v. Hurstmonceaux, post. No action justices for a lies against distress under a conviction for not doing statute labor on the highways, where, by reason of the plaintiff's occupying land within FAWCETT against FOULIS, Bart., and another. BH 394 TRESPASS for breaking and entering plaintiff's close, situate, &c., at the parish of Arncliffe, in the county of York, and seizing, &c., plaintiff's sheep. Plea, not guilty. At the trial before Bayley, J., at the last assizes for the county of York (b), it appeared that the defendants, who are magistrates in the North Riding, had caused a distress to be taken in December, 1826, on the defendant's goods, for penalties, for not performing statute labor on the high-ways in the township of Ingleby; the object of this proceeding being, to ascertain whether the occupiers of tion. A pre- lands in the hamlet of Arncliffe, within the parish of scriptive ex the parish, the magistrates have jurisdic emption in re- Arncliffe, were liable to contribute to the repairs of the roads in the township of Ingleby in the same parish; it spect of the particular estate or ham let, should be pleaded or given in evi (6) Counsel for the plaintiff, Brougham, F. Pollock, and Alderson; for the defendants, Cross, Serjeant, Parke, and Alexander. dence before the magistrates, or made the subject of an appeal to the Quarter Sessions. being contended on the part of the occupiers of lands in the hamlet of Arncliffe, that they were discharged from such liability by reason of their exclusively repairing the roads in that hamlet. The following is a copy of the warrant of distress:-"North Riding of Yorkshire. To the constable of the township of Arncliffe in the said Riding. Whereas, John Fawcett, of the parish of Arncliffe, in the said Riding, farmer, is duly convicted before us, Sir William Foulis, Bart., and Benjamin Flounders, Esq., two of his Majesty's justices of the peace, in and for the said Riding, upon the oath of Thomas Peacock of the parish of Arncliffe aforesaid, a credible witness. For that the said John Fawcett, was on the 28th day of September, now last past, served with a notice under the hand of Thomas Peacock, surveyor of the highways of the parish of Arncliffe aforesaid; whereby, the said John Fawcett, was required to send one wain, cart or carriage, furnished with no less than two able horses and one able man, with proper tools to attend the same; to be at the Tontine inn, to load stones from Mr. Thomas Park's Ellerbeck, to the new road within the said parish, near John Wilson's farm, on Tuesday the 3rd, Wednesday the 4th, Thursday the 5th, and Friday the 6th days of October, now last past, by 8 o'clock in the morning, to work diligently eight hours in repairing the highways within the parish of Arncliffe, in the county of York, or compound for the same two days before the respective days appointed to work; and that the said John Fawcett, neglected to attend and perform such statute duty as was required by such notice, contrary to the statute in that case made and provided; by reason whereof, the said John Fawcett, hath forfeited four several sums of five shillings, amounting together to the sum of one pound, to be distributed as herein mentioned, which he hath refused to pay. These are therefore in his Majesty's name to command you to levy the said sum of one pound, by distress of the goods and chattels, of him, the said John Fawcett, and if within the space of 1827. FAWCETT v. FOULIS. |