the servant, notwithstanding he uses this privilege, will, on a hiring for a year, and by serving that year, gain a settlement (o).

And a clerk in a mercantile house hired by the year, but serving only during the usual hours of business, thereby gains a settlement, although those hours do not, by the general custom of the trade, ever occupy the whole day, and although he went wherever he pleased, without asking his master's leave, when those hours were over (p).

Exceptive Hiring.]-But if, upon the hiring, it be agreed that the service shall be only during certain hours in the six working days (q), or that the servant should have a holiday to go to his feast (r).

So, if it be agreed, on the hiring, that the servant shall be at liberty to serve elsewhere for the harvest month, this is not a good hiring for a year but an exceptive hiring (s); and the like, where though the hiring was for a year, the servant was to work for anybody for his own benefit when the mistress had no work for him (t).

So, where a pensioner of the East India Company hired himself as a servant for a year, with a reservation to himself of two days in each half year, in order that he might go for his pension, he was held not to have gained any settlement by a service under such contract; for here was an express exception of four days in the year, during which the pauper was not to be under the control of the master (u).

And where an agreement was made for a three years' service, at ls. per day, when the master should have work, but not to be paid when he had none; and the master told the servant that he should not always have work for him, and that when there was none, he might work for other people, this was holden an exceptive hiring, and no settlement was acquired under it (x). Where a pauper was hired by indenture for a year, at the wages of Is. 10d. a day for a good day's work, not exceeding fourteen hours, and 2d. a day more when that

(0) R. v. St. Agnes, Burr. S. C. 671. (p) R. v. All Saints, Worcester, 2 B. & Ald. 322.

(g) R. v. Frome Selwood, 1 B. & Adol. 211; R. v. Birmingham, 9 B. & C. 925; 4 Man. & R. 691, S. C.; R. v. St. John, Devizes, 9 B. & Cr. 896; 4 Man. & R. 681, S. C., whether the party was at liberty to make overwork or not; R. v. Norton Bavant, 3 Ad. & Ell. 161; 4 Nev. & M. 687, S. C.; R. v. Osset cum Gawthorpe, 4 B. & Adol. 216; 1 Nev &. M. 21, S. C.; and see 4 B. & Adol. 718,

R. v. St. Helen's, Auckland: R. v. Cow-
pen (Inh.), 5 Ad. & E. 333 : 6 Nev. &
M. 559, S. C.; R. v. Macclesfield, Burr.
S. C. 458.

(r) Reg. v. Threkingham (Inh.),7 Ad. & E. 866.

(s) R. v. Macclesfield, Burr. S. C. 458. (t) R. v. South Killingholme, 10 B. & Cr. 802.

(u) R. v. Over, 1 East, R. 599. (x) R. v. Polesworth, 2 B. & C.715; 4 D. & R. 258, S. C.

time was exceeded, and he was to forfeit 10s. 6d. for every act of disobedience, and 2s. 6d. for every day he remained idle, to be deducted from his wages; and the master was to be at liberty, in case he wished to repair the engine about Christmas, to stop the workings for seven days, this was held not an exceptive, but a conditional contract, and a settlement was gained under it (y). But where a contract was made nearly of the same kind, in which the master stipulated to find work for the year, except ten days at Christmas, this was holden an exceptive contract, and conferred no settlement (z).

Customary Hiring.]-A hiring for a customary year, as from Whitsuntide to Whitsuntide, such hiring being intended for a year, and so considered by the parties, is said to be a good hiring for a year, although the period fall short of 365 days (a); but a service of 365 days, owing to leap-year, under a hiring from 15th May, 1819, to 13th May, 1820, will not suffice where the contract was dissolved on 11th May (b).

So, if the pauper be hired at a fair held the day immediately after Old Michaelmas, to serve till the Old Michaelmas-day following; this will be a sufficient hiring for a year, for the days shall be taken inclusively (c).

For, as it was observed by Lord Mansfield, in the case which is here selected in support of the doctrine advanced, "there must be a hiring for a year. It has been determined, that a hiring from one moveable feast to another, is a sufficient hiring, being according to the custom of the country, although there should not be three hundred and sixty-five days; on the other hand, a hiring two days after Michaelmas to the next Michaelmas, has been determined no good hiring; and therefore the question is, whether here was a hiring for a year? Great criticism has been made on the word till; it may, or may not, be exclusive, according to the subject-matter. Here the custom is very material to explain it; the custom is to hire from the next day after Michaelmas. If this be wrong, there can be no settlement gained in this part of the country by a servant."

But in another case, (in perfect conformity however with the last, if

(y) R. v. Byker, 2 B. & C. 114; 3 D. & R. 330, S. C.

(z) R. v. Gateshead, 2 B. & C. 117; 3 D. & R. 333, S. C.

(a) Newstad v. Holy Island, Burr. S. C. 669; R. v. Ulverstone, 7 T. R. 565.

(b) R. v. Roxby, 10 B. & Cr. 51; 5 Man. & R. 40, S. C.

(c) Ibid. R. v. Navestock, Burr. S. C. 719; R. v. Syderston cum Bermer, Cald. 19.

the discrimination be properly attended to,) a different conclusion was drawn. The pauper went to the market town of Otley, where there is a custom for servants to hire by the year, at two different fairs; one held on the Friday before Old Martinmas-day, the other on the Friday next after Old Martinmas-day; at which latter fair, they always hire till the Old Martinmas-day following, which by the custom is considered as a hiring for a year. Old Martinmas-day, 1774, was on the Tuesday; and on the Friday following, being the second statute fair, the pauper hired himself to serve a person in Harwood, till the Old Martinmas-day following; which person he accordingly served in Harwood till the Old Martinmas-day following. This being a hiring for three days less than a year, the court were clearly of opinion, that this was not a sufficient hiring for a year; and Buller, J., observed, that "there is no case in which a hiring, which must necessarily be less than a year, has been adjudged to give a settlement, and it would be dangerous to make a new precedent of that sort; all the cases agree that there must be a hiring for a year" (d).

And when a pauper agreed to serve a brickmaker, from Michaelmas to Michaelmas, and to make 70,000 bricks at a stipulated price per thousand, it was held that this was no hiring for a year, no absolute contract for time, but merely a contract to serve till a certain quantity of bricks should be made, which was the completion of the job, and that such a hiring did not enable the party to gain a settlement (e).

In estimating the precise value of the word "until," it is necessary to observe further, that not only the circumstances of the particular case must be the guide of interpretation, but that (as was said by the court of king's bench on another case) there is no fraction of a day, and therefore a settlement will be complete where the minutest part of a day being included, will make up the year's service, or three hundred and sixty-five days (ƒ).

Retrospective Hiring, and Prospective Conditional Hiring.]-A retrospective hiring cannot be admitted in any case to make a settlement, for it would be absurd to make a contract for a time past. And, on a point so obvious, a single authority will be sufficient, especially as it was one which has always been relied on in cases of this description. A gentleman of the parish of Ilam, hearing that the pauper

(d) R. v. Hanwood, Cald. Ca. 100; Doug. 439, but see next page.

(e) R. v. Woodhurst, 2 B. & Ald.

325.

(ƒ) R. v. Skiplam, 1 T. R. 490.

was a boy who might possibly serve him as his postilion, sent to have him upon liking. After the pauper had served eight weeks on liking, his master hired him for a year, to commence from the beginning of the said eight weeks. He accordingly served his master in the said parish of Ilam, including the said eight weeks, a year and ten days, and no longer. The court held this case to differ from all former cases. The question was, whether here was a hiring for a year? it is agreed, that there must be a hiring for a year, and a service for a year, to gain a settlement, and that a retrospective hiring will not do; which latter is the case here; for the lad came upon liking; and at that time there is nothing stated of a hiring, during which eight weeks both parties were at liberty.—They therefore held this to be no settlement (g). But a hiring for a quarter of a year, and if the master and servant like one another, to continue for a year, is a good hiring for a year, for the court held the conditional hiring to be a good hiring for a year; because the master and she did like one another, and a year's service was actually performed under it (h).

3. What Service necessary to a Settlement: and herein of Connecting Services under Hirings for a Year, or less than a Year.]—A service for a year, though it be under different hirings, is good; and it seems now held that none of those hirings need be for a year. Thus, where there had been nine successive half yearly hirings, and continuous service under them for four years and a half, the court held the hiring to be clearly a good yearly one, under 3 & 4 W. & M. c. 11:-for that act does not require an entire contract, but merely an obligation on one side to employ, and on the other to serve, for a whole year, so as to give the master at one moment entire dominion over the servant for a whole year to come. "If he has that, whether it is by one or fifty contracts, is immaterial" (i). And even when a pauper bound apprentice, before the expiration of her apprenticeship, hired herself and served for a year, the four last months of which were after her indentures had expired, and then hired herself to the same person for another year, but served only ten months, it was held that the first service (although

(g) Burr. S. C. 304; Cald, 23. (h) Burr. S. C. 289.

(i) Reg. v. Ravenstonedale (Inh.), 12 Ad. & E. 73. Semb. overruling 10 Modern, 392. In the report of this case in 3 P. & D. 472, Williams, J., is said to have added, that the proposition in 1 Nolan, 356, and other

poor law digests, as to the necessity of
one entire contract for a year is rather
too broadly laid down. See, however,
his judgment in R. v. Rettendon, 6 Ad.
& E. 299. Note, every hiring in the
principal case was before the commence-
ment of the service under it.
470.)

(8.

0.

without the knowledge or consent of the master) might be coupled with the service of the last contract, and that the pauper thereby gained a settlement (k).

And it was also determined that a service under a hiring for fiftyone weeks, might be coupled with a service under a previous hiring for a year, so as to confer a settlement (1).

But there is so great a number of cases of this kind, that the insertion of one, which, though not the most recent, was much considered, must serve by way of exposition to the substance of the general doctrine. Its immediate purpose is to show the principle on which these determinations turn, viz. that the service under an imperfect hiring, may be connected with the same service under a perfect hiring, although under such perfect hiring there may not have been a residence of forty days. A pauper was hired in Church Stow eight days after Old Michaelmas, to the Old Michaelmas following; continued in his master's service till the day after Old Michaelmas-day, when he was hired by his master till the Michaelmas following, and under that hiring he only served ten days. By Lord Kenyon, C. J.-" Upon one point of this case, there can be no doubt,—that, to gain a settlement, the service for a year need not be under a hiring for a year. Whether that question was rightly decided originally, or not, it is now too long settled, and has been too often recognized, to be again disturbed. I have always considered it as equally settled, that if there was a hiring for a year, constructive service for a year, and a residence for forty days, that it was sufficient to confer a settlement; and I have never heard it advanced, previous to the present case, that the service for forty days must be subsequent to the hiring for a year. That this has been the general understanding upon this subject, it is fair to suppose, since no case has been adduced to support the contrary position." The case stood over for further argument; but afterwards Lord Kenyon declared, without any further argument, "that the court were of opinion, that the pauper had gained a settlement in Church Stow; although there had not been a service of forty days subsequent to the last hiring" (m)

It was long holden that two requisites are necessary for joining two services, so as to acquire a settlement, viz., that there was to be no discontinuance or chasm between them, and also that they were to be services ejusdem generis. The latter point, however, is now exploded (n);

(k) R. v. Dawlish, 1 B. &. Ald. 280. (1) R. v. Fillongly, 1 B. & Ald. 319; R. v. Hanbury (Inh.), 1 B. & Adol. 360.

(m) R. v. Adson, 5 T. R. 98; R. v. Child Oakeford (Inh.), 3 B. & Adol. 809.

(n) R. v. Sutton, 1 East, 656.