Eleventhly, Of exceptive hirings.

What is evidence of a hiring.

Hiring for a year, with liberty to be absent a month

in the militia, if

settlement.

labour: this therefore was a good hiring for a year.-Grose, J. According to the terms of this contract she was not at liberty to desert her father's service, she was only permitted to do what other work she could consistently with her father's service, and her earning beside that will not prevent its being considered as a hiring for a year. And as to the service, it is expressly stated that the pauper lived with her father for a year in pursuance of that agreement. Both orders quashed.

Rex v. Westerleigh, Burr. S. C. 753; 2 Bott, 312; 1 Nol. P. L. 383, 396. W. Ayliff was hired for a year to A. Tyler, of Old Sodbury, to serve her for a year, but he told her that he was in the militia, and he requisite, gains a might be absent about a month in the year to attend on that duty, but that he would pay a man to serve in his place, or else he would make her an allowance out of his wages for the time he should be absent. He served her till May following, and then attended the militia for thirty days, and afterwards returned to his service with A. Tyler, and continued there until the end of his year, and then made her an abatement of 8s. out of his wages for the time he was absent. Lord Mansfield was not in court. Mr. J. Aston thought this case reconcileable to Rex v. Beccles, and Rex v. Goodnestone (post, 393), and distinguishable from that of Bishop's Hatfield: that absence for a particular time, with the master's leave, not agreed for at the time of hiring, doth not dissolve the contract. But in the case of Bishop's Hatfield, the original hiring was with liberty to let himself for the harvest month to any other person. This made a clear chasm in the original contract. It was plainly a hiring for less than a year. In the present case a man is hired for a year, to serve for a year, but mentions an event that might happen of his being called out to attend his militia duty; and told his mistress, that if it should so happen, he would either pay a man to serve in his place, or make her an allowance out of his wages. This is not a chasm in the contract, but a dispensation with the present service. Mr. J. Willis premised, that settlements ought to be favoured; and that militia-men ought not to have any additional hardship put upon them if it can be avoided. However, he could not help thinking, that the case of Bishop's Hatfield was very like the present case, and that the absence was as much part of the contract in the one case as in the other. If the mistress did not expressly agree to it, she at least acquiesced. Indeed, in the present case the servant agreed either to find a substitute, or to abate out of his wages. Now this was at the election of the mistress: and she dispensed with his absence, upon an abatement out of his wages. Upon this distinction, and this only, he would, for the advancement of settlements, distinguish this case from that of Bishop's Hatfield.-Mr. J. Ashhurst said, that in a case which might affect a vast number of militia men, he was for leaning in favour of their gaining settlements; and he thought this case to be distinguished from that of Bishop's Hatfield. That case was certainly no more than a hiring for eleven months. But here was an alternative; it might happen that the servant should not be called out. Therefore he concurred in supporting the settlement.

Rex v. Winchcomb, Doug. 391; 1 Nol. P. L. 383. The pauper hired himself in Chipping Norton five weeks before Michaelmas, for a year: and at the time of the hiring, it was agreed between him and his master, that his wages should be paid weekly, at 8s. a-week, and that being a ballotted man in the militia, he should be absent for a month, and in lieu of that month should serve another month at the end of the year. He was accordingly absent thirty days in the militia, and then returned to his service, but he only continued three weeks of the month which was agreed to be served in lieu of his absence in the militia, leaving his master a fortnight before Michaelmas. He expressly swore, that he did not serve his master a year by one week. It was objected, that this was no hiring for a year, nor any service for a year, at Chipping Norton.-By Lord Mansfield, C. J., and the rest of the Court: There is in this case a hiring for a year: and there is also a service for a year, if it were not for the month's absence in the militia. A service must be for a continuation, without interruption, or adding together broken pieces to make up the year. But here, the agreement, as to the

absence for a month in the militia, was only what would have been implied, and what the master must have consented to. The year was completed five weeks before Michaelmas, and the additional month agreed for was only in the nature of a compensation for the want of the pauper's service while absent in the militia, and equivalent to a deduction of so much wages. This case, if not the same, is very like Rex v. Westerleigh. The Court ought to lean in favour of settlements; and the bad consequences would be very extensive, if we were to determine that a man shall lose his settlement by serving his country in the militia. We are all of opinion that this is a good settlement at Chipping Norton.

Note. These cases are inserted here, as Lord Mansfield gives as a reason for his judgment, that the agreement for absence would have been implied if not expressed. See as to these cases, Rex v. Holsworthy, 6 B. & C. 283.

Twelfthly-Hiring with limitation of Working Hours. (a)

There is also a class of hirings in which it is not the intention of the parties to except any portion of the year out of the agreement, but in which a stipulation is introduced as to the number of working hours. The effect of such stipulations upon the question of settlements will be seen in the following cases.

Rex v. Macclesfield, Burr. S. C. 458; 2 Bolt, 300; 1 Nol. P. L. 377. The pauper was hired, with the consent of his mother, to work in Macclesfield, at a silk mill there, for the term of three years, at 6d. a-week for the first year, 9d. a-week for the second year, and 13d. a-week for the third. The master was not to find diet or lodging; and the service was to be only eleven hours in the six working days; and all the rest of the time, as well as on Sundays, he was to be at his own liberty and his own master. He continued three years in the service: but within that time frequently absented himself from his work, sometimes for a day, or longer, at other times for several hours in the day; for all which deductions were made out of his wages. He lodged the three years with his mother at Macclesfield, who received his wages; which not being sufficient to maintain him, the overseers of Sutton contributed 6d. a-week during the whole time towards his maintenance. The question was, whether this was sufficient to gain a settlement at Macclesfield ?—By Lord Mansfield, C. J. Here is no foundation to imagine that this can be a settlement on the ground of an apprenticeship. The only question is, whether it be a settlement as a hiring for a year and service for a year? The pauper was an infant of only eight years of age, at the time of the hiring. Therefore he was not bound by the agreement. Indeed he might have affirmed it; (for the contract of an infant is not absolutely void, but only voidable at his own election.) But the master could not oblige him to stand to it. Then as to the contract itself, it was only to serve eleven hours in the day of the six working days, but during all the rest of those days, and the whole Sunday, the servant was at his own disposal. It is in the nature of a contract from week to week; and it cannot in this case be construed to gain a settlement; and it is plain Sutton did not understand it in this light, having contributed to the child's maintenance during the whole three years.

Rex v. Kingswinford, 4 T. R. 219; 1 Nol. P. L. 377, 378. Case: The pauper, J. Lockwood, agreed with W. Bullock to serve him as an artificer in the art of a glass-grinder, or in any other art he should think proper to employ him in, for seven years; and he was not, during that time, to work for, or to serve any other person, nor depart from his work without the leave of his master, but would continue and be in such service as aforesaid, from six o'clock in the morning till seven in the evening of each day, during the said term, including half an hour at breakfast, and one hour at dinner times, (except on Sundays), if in proper health. His master was to find him shop-room, and to pay him three shillings and sixpence per week during the term, and to provide him meat, &c. He served Bullock two years under

(a) See division of the subject, ante, 319.

Eleventhly,

Of exceptive hirings.

Twelfthly, Of hiring with limitation, &c.

Hiring to work for three years, day, the rest of his time and Sunown, is not a yearly hiring.

eleven hours a

days to be his

years, to work

Service under a hiring for seven only thirteen hours a day (and Sundays excepted), will not give a settlement.

Twelfthly, Of hiring with limitation, &c.

A hiring to serve

five years as a shearman, and to

work shearman's hours only, will not gain a settlement.

A hiring at four shillings per week, to work

from six A. M., to seven P. M., with liberty to do as much over-work as he pleased, is an exceptive hiring.

this agreement. He occasionally worked in the night time, and often went on errands for his master on Sundays, and never worked with anybody else during that time, nor thought himself at liberty so to do.-Lord Kenyon, C. J., said, that there was no real distinction between this case and Rex v. Macclesfield, for that the fair construction of this agreement was, that the pauper was to be his own master on Sundays, and on other days after he had served the thirteen hours, because he had only covenanted to serve those hours, and that the expression of one was the exclusion of the other. It was essential in these cases that the servant should be under the power and coercion of the master during the whole time. (a)

Rex v. North Nibley, 5 T. R. 21; 1 Nol. P. L. 377; is a case similar in its material circumstances, and the Court said, that Rex v. Kingswinford had decided the question, and that such hiring and service did not gain

a settlement.

The Court came to the same determination, where, by the contract, the hours of labour were fixed, and the servant was not allowed to work for any other master in the other part of the day. Rex v. Frome Selwood, Oct. 1830. MSS.

Rex v. Buckland Denham, Burr. S. C. 694; 2 Bott, 311; 1 Nol. P. L. 377. The pauper, about seventeen years of age, was hired by his father, to a clothier of Buckland Denham, to serve him as a shearman for five years, and was to work shearman's hours only (which are uncertain): it was understood that he should be at his own liberty at all other times. He served his master as a shearman, according to the agreement; working the same hours as his master's other shearmen did.-By the Court: This is not a good hiring for a year; because there is an exception in it, that the pauper was to work shearman's hours only, and to be at his own liberty at all other times But if the contract be an absolute contract for a year, the not working on Sundays and holidays, if it be the custom of the country not to work on those days, ought not to hinder the gaining of a settlement.

Rex v. Birmingham, 9 B. & C. 925. Order of removal of W. Stean, &c., from Birmingham to Atherstone, confirmed. Case: The pauper went to live with J. Owen, a button caster, of Birmingham. After he had been with him some time Owen hired him for a year, at 4s. 6d. per week. Nothing was said about Sundays. It was part of the terms of the hiring, that the pauper was to work from six in the morning to seven in the evening, and might make as much over-work as he chose. He received earnest when he was hired. He served his master under this contract for a year, during which he lived in his master's house, and boarded himself; he lived there on Sundays as well as week days, and on Sunday morning he used to ask if any thing was to be done, and if there was, he did it. He made a good deal of money by over-work, but never did any for any one but the master, and was never paid for it but by him: he was allowed 2d. an hour for over-work. At the expiration of the first year; he was hired by Owen for a second year on the same terms, except that he was to have 5s. 6d. per week wages and 4d. an hour over-work. He served the whole of the second year. He was hired for and served a third year on similar terms.-Bayley, J. This case is very different from Rex v. Byker. There the Court thought the term was only mentioned as the measure of the wages, and that the contract did not impose any limit upon what was reasonably required by the master; and that the relation of master and servant continued during the twenty-four hours. But in this case there was a stipulation that the pauper was to work from six in the morning till seven in the evening, and might make as much overwork as he chose. It was optional in him to do over-work or not. He had a right to say to his master, I have worked thirteen hours, and will work no more. This is clearly an exception in the contract, limiting the control of the master to the specific period of time therein mentioned.-Littledale and Parke, Js., concurred. Order confirmed.

(a) In Rex v. Wrenton, Burr. S. C. 458, Foster, J., said, a hired servant is always under the control of the master, even on Sundays.

Rex v. Ozelworth, Burr. S. C. 302; 2 Bott, 432. W. Hewett agreed with T. Palsor, cloth worker, to serve him in his business for three years, at so much a week. He was to work twelve hours a day; and a penny for each hour over. Sixpence a week was to be retained as a deposit; which was to be repaid to Hewett if he performed the agreement, or if Palsor should discharge him before the end of the term. It was understood between them that Palsor might turn Hewett out of his service at any time during the term, paying him the sixpences detained. Hewett worked under the agreement for about six months; and then, being ill, absented himself about three months, and then returned, and was received by Palsor, and continued to work for him under the agreement till removed by the order, being about three-quarters of a year after his return.-By the Court: Here is an actual hiring for three years, and a service under it for one year and a quarter. Besides, the two justices removed him whilst he was actually in his master's service.

Rex v. St. Agnes, Burr. S. C. 671; 2 Bott, 310; 1 Nol. P. L. 404. The father of the pauper contracted with Mr. Nankivell (the pauper being then fifteen years of age) for the pauper to work at Nankivell's stamps, situate in St. Agnes, (which stamps are mills, wherein several are employed in cleansing and manufacturing tin,) for one year, at the yearly wages of 51. The pauper served Nankivell, at the stamps, for the year, by working therein daily, except holidays and Sundays, according to the custom of tinners. And his father received his wages as he had occasion for it. During the year the pauper ate, drank, and lodged with his father, in St. Agnes, serving Nankivell at his stamps, and in no other capacity, nor ever became a part of his master's family. By the Court: This was an entire contract for a year, without any exception contained it; and the service was according to the custom of the country. The difference is where the exception is part of the contract, and where the contract is absolute: the question turns upon this distinction. In Rex v. Macclesfield, it was part of the original contract: here it is not so. And they were unanimous, that the pauper gained a settlement.

Twelfthly, Of hiring with limitation, &c. But if hiring is to serve three years, though only to hours a day, and if more to have a certain sum per hour, this gains a settlement.

work twelve

So, also, where the

only implied, and not absolute.

exceptions are

as a bleacher and crofter.

Implied exceptions by the custry, will not de.. feat the settle

tom of the coun

Rex v. Horwick, 10 East, 489; Bott, cont. 137; 1 Nol. P. L. 382, 384. Hiring to work The pauper was hired as a bleacher and crofter for a year, at 12s. a week; nothing else passed at the time of hiring, and he served the year. The custom is for each bleacher to be directed by his master to get up a certain number of pieces a week, calculating at so many pieces a day for six days; there is no stint as to hours, and if the bleacher finish his work in less than the time appointed, the rest of the time is his own to do as he pleases. The pauper, on Sundays, went where he pleased, without asking his master's leave. The pauper occasionally made up for lost time by working on Sundays, but this was his own act. The master had nothing to do with the bleachers on Sundays. -Lord Ellenborough. The law of the land breaks in upon such contracts as these on the Sundays, and the master in this case had as much right to the service of the pauper for the whole year as the law will allow. Here is a clear distinction between this case and Rex v. Macclesfield (ante, 367), Rex v. Kingswinford, and Rex v. N. Nibley. Here is an express hiring for a year, and no express exception of any part of the year. But this is an attempt to introduce an implied exception from the practice of a particular house of manufacture; though implied exceptions in the times of service, by the custom of the country, have been held not to break in upon general contracts of hiring for the year.

Rex v. All Saints, Worcester, 1 B. § A. 322; 1 Nol. P. L. 376, 377. A clerk in a mercantile house was hired by the year, but he served only during the usual hours of business, which did not, by the custom of the trade, ever occupy the whole day, and he went were he pleased, without asking his master's leave, when those hours were over. He did what he pleased on Sundays. After hearing Puller in support of the order, Lord Ellenborough, C. J., said, There is in every contract of hiring some implied exception of hours for relaxation, food, and rest; I cannot at least suggest to myself any contract in which such exceptions do not exist. The master here has a right to the service of the pauper at all times, but he does not require his services

ment.

A clerk in a merhired by the year, chant's house, but serving only during the usual tile business, thereby gained a though these hours never occupied the whole

hours of mercan

settlement, al

day.

Twelfthly, Of hiring with limitation, &c.

A hiring for four years, to work according to the rules of the fac

at the master's discretion. The pauper was told she was to work twelve hours a day Held, not an exceptive hiring.

at any other hours than those mentioned: there is not any exception in the contract. The hiring then being general, and there being no exception but such as are necessarily implied in every contract, I think that the pauper by serving under it for a year, gained a settlement.-Bayley, J., said, the distinction between the two classes relative to this subject is, that in the one the exception to the service is expressed in the contract, and in the other it is left by the custom of the particular trade to be raised by implication. This case seems to me to range itself under the latter class; and therefore I think the pauper gained a settlement by this hiring and service.-Abbott and Holroyd, Js., concurred, Order of sessions quashed.

Rex v. St. John, Devizes, 9 B. & C. 896. Order of removal of Prudence Abrahams, from Chippenham to Devizes, confirmed. Case: The pauper hired herself by a written agreement, made with Mr. S's. foreman, to work tory, which were in Mr. S's. factory, as silk-winder, for four years. S. agreed to pay her 2s. a-week for the first year, and a progressive increase in each successive year, subject to a reduction for absence, through sickness, or otherwise, from her work. She agreed in all things to observe and obey all the rules and regulations of Mr. S., as well with regard to the hours of attendance, and of work, as then made, and other particulars of working. She was to pay for unnecessary waste. At the expiration of the time, for good conduct, she was to receive a gratuity of 37. When the pauper executed this agreement, the foreman told her that she must observe the working hours, and if certain work was not done, she must work twelve hours a-day. The pauper entered on her service the day of the agreement. Rules for the factory had not at that time been reduced to writing. The foreman said they existed only in the breast of the master, but were known to and acted on by the work people. They were, during the service of the pauper, occasionally altered by the master, but the rules as to the hours were never changed. Time was at first allowed for tea, but afterwards revoked by the master's sole authority. The question was, whether this was an exceptive hiring, and whether parol evidence had been properly received.-Bayley, J. Where there is in a contract of hiring, an express exception of any particular time, so that during that time the master cannot exercise any control over his servant, that is not a hiring for a year. By this agreement the servant stipulates to obey all the rules of the factory, with regard to the hours of attendance. In every hiring the law will imply that the party hired shall work at all reasonable hours when required. The ordinary working hours in a manufactory are twelve hours a-day; but it does not therefore follow that the master may not, on extraordinary occasions, require his servant to work at other hours. Whether he does so or not, the relation of master and servant continues during the whole day. It does not appear what were the specific rules in this case; but assuming that one of them were to work twelve hours a-day, yet, inasmuch as the regulations might be, and were, from time to time, altered by the master, the stipulation that the servant should obey the rules of the factory with regard to hours of work, did not give the servant any right to say that the master should not require her service at all reasonable hours. Such a stipulation does not necessarily imply that she is not to work beyond certain hours. The true meaning of this agreement is, that the relation of master and servant was to continue the whole day. There is no exception in the contract, and no remission of service, but such as the law will imply in every contract of hiring.-Littledale, J. To constitute a yearly hiring, the relation of master and servant must subsist during the whole year, and during the whole of every day. It has been held in several cases, that a hiring, in terms for a year, the servant to work for so many hours a-day, is an exceptive hiring. These cases have gone to a great extent. It seems to me, that unless by the terms of such a contract there is an express exception, shewing that the relation of master and servant is not to subsist during the whole year, or during the whole of every day in the year, it is a yearly hiring. By this contract the servant is to conform to the rules of the factory. That is a stipulation which the law would imply in every contract of hiring; and we cannot from that infer, that there was an exception of any period of time, during which the relation of master and servant was not to exist.-Parke, J. I have no doubt