but I do not think that it is so in the present case. The description given in 3 W. & M. c. 11. s. 7, of the party who is said to acquire a settlement by hiring and service, comprises a particular series of circumstances, not inserted by way of proviso, but as the main subject-matter of the enactment: those circumstances, then, must be directly stated. The word " 'single" is open, as this argument has proved, to much discussion. It may mean unmarried, and without child or children; but it appears impossible to say, that it of necessity involves those particulars; and nothing less will satisfy the indispensable requirements, if the description given in the statute is to be followed. PATTESON, J. and WILLIAMS, J. concurred. WIGHTMAN, J. was in the Bail Court.

Cowling shewed cause, and contended, that this point was settled by The King v. the Inhabitants of Wheelock (1), and that, although it might be desirable, as suggested by Patteson, J. in The King v. the Inhabitants of Wick St. Lawrence (2), that where an order of removal was quashed upon a special ground, it should be so stated on the face of the order of Sessions, yet that the Court would not interfere with the discretion the Justices had in such a matter, and compel them by mandamus to make a special entry.

Jervis, contrà.The Courts having suggested the great benefit of a special entry in these cases, namely, to save the expense of taking witnesses down to prove the factsThe King v. the Inhabitants of Wick St. Lawrence, The Queen v. Brighton (3), the question is, whether they will not order it to be done. It must be admitted, that The King v. the Inhabitants of Wheelock is opposed to such an order, but in Beaton v. Southgatebury (4), which does not appear to have been there referred to, the Court is

Where an order of removal is quashed for informality by the Court of Quarter Sessions, the Court of Queen's Bench will not compel them to make a special entry of that fact upon the minutes of their proceedings, though it is very convenient that they should do so.

A rule nisi had been obtained for a writ of mandamus to the Justices of the Peace of the county of Lancaster, commanding them to state upon the minutes of the proceedings had before them at the Quarter Sessions of the Peace for that county, the grounds for quashing an order for the removal of J. Mitchell, his wife and child, from Heaton Norris to Preston.

It appeared by the affidavits, that at the Quarter Sessions, the respondents had applied to quash their order for informality, and also because the examinations were defective; these matters having been pointed out as objections in the notice of appeal. The Court of Quarter Sessions quashed the order generally, on points of form, but refused an application by the respondents to direct the clerk of the peace to make any special entry of their grounds for quashing the order.

aside for want of form, you should have moved them (the Justices) to specify that as a reason, and if they had refused it, we would have compelled them to it; but no reason appearing, we must conclude it was set aside on the merits of the case."

LORD DENMAN, C.J.-That case was mentioned, I believe, on moving for the rule, which, perhaps, we ought not to have granted, as it is clear the Court below must exercise their discretion in the matter.

PATTESON, J.-It is also clear to me, that we cannot interfere. At the same time, I regret that we are unable to require the Justices to make a special entry in cases of this nature, as, owing to the great convenience of it, I think they ought to do so.

WILLIAMS, J. and WIGHTMAN, J. concurred. Rule discharged.

66

The examination of a pauper stated, that she and her husband, sixteen years ago, went to live at a house in the parish of S. My husband and I occupied it until his death, which happened about nine years back. I have seen my husband pay rent for this house many times; he paid it quarterly, at the house. I continued to occupy this same house until March 1841. After my husband's decease, I paid the rent during the eight years I occupied it :"-Held, insufficient to warrant a removal, on the ground of settlement by renting a tenement, there being no statement of forty days' residence, either by the pauper or her husband.

Upon an appeal against an order for the removal of Rachel Smith, widow, and her children, from the parish of St. Margaret's, Rochester, to the parish of Strood, in the same borough, the Quarter Sessions for the borough quashed the order, subject to a

case.

The case set out the examination of the pauper, Rachel Smith, of which the following were the material facts :-"On or about the 2nd day of June, 1822, I was married to William James Smith, a bargeman, at the parish church of St. Margaret's aforesaid. About sixteen years ago, my husband and I went to live at a house in Caroline Place, in the parish of Strood, in the city of Rochester, which I hired of Mr. Edmund Aldersley, of Strood aforesaid, coal-merchant, for 117. a-year; my husband and I occupied it until his death, which happened about nine years back. I have seen my husband pay rent to Mr. William Payne for this house many times: he paid it quarterly to Mr. Payne, at the house. I continued to occupy this same house until the month of March in the year 1841, when I came to the house I am now residing in. After my husband's decease, I paid the rent during the eight years I occupied it to Mr. William Payne. To my knowledge or belief my late husband did no act whereby to gain any other settlement, nor have I NEW SERIES, XII.-MAG. CAS.

since his death done any act to gain a settlement."

The following was the ground of appeal, applicable to this case:-that it does not appear, upon the said examinations, that the said Rachel Smith or her husband, N. J. Smith, therein named, ever resided for forty days in the house in Caroline Place, in the said parish of Strood, mentioned in the said examination of the said Rachel Smith, nor that they, nor either of them, ever resided for forty days in the said parish of Strood.

On the trial of the appeal, before any evidence was heard, the appellants insisted that the order of removal should be quashed because there was no express statement in the examination that the pauper's husband, in his lifetime, or the pauper, since his death, ever resided for forty days in the house in Caroline Place, or elsewhere, in the parish of Strood. The respondents, on the other hand, contended that those facts sufficiently appeared from the statements contained in the examination, and that, such being the case, no precise form of words was necessary to convey that information. The Sessions decided in favour of the objection, and quashed the order of removal. If the Court of Queen's Bench should hold the objection good, the order of Sessions to be confirmed; if the Court should be of a contrary opinion, the case to be sent back to the Sessions, to be heard on the merits.

Bodkin, in support of the order of Sessions, relied on The Queen v. the Justices of the West Riding (Drighlington v. Pudsey) (1).

Brett and Rose, contrà, cited The Queen v. Stapleford Fitzpaine (2), The Queen v. Rotherham (3), The Queen v. Chawton (4), and The Queen v. the Justices of Buckinghamshire (5), where Lord Denman, C.J. observes "We have taken great pains, by adhering to an uniform course of decision, to enforce on parishes fulness of statement in their examinations and grounds of appeal; and, having done so, we have a right to require of the Justices that they shall exercise reasonable intendment, and rather apply

(1) 11 Law J. Rep. (N.s.) M.C. 80.

(2) 1 Gale & Dav. 605; s. c. 11 Law J. Rep. (N.s.) M.C. 38.

(3) 2 Gale & Dav. 523; s. c. ante, p. 17.
(4) 10 Law J. Rep. (N.s.) M.C. 55.
(5) 2 Gale & Dav. 560; s. c. ante, p. 29.

L

A contract of hiring, consisting of an engagement to work for four years in any employment the master might set the pauper to, and to devote his whole time and attention to such business during the usual working hours, which were from 6 A.M. to 6 P.M. in the shop, and the same when working out; and also to give an account of all his doings in the business, whenever required; in consideration of weekly wages:-Held, an exceptive hiring.

Upon an appeal against an order for the removal of Thomas Brayshaw, his wife and children, from the township of Holbeck, (within the borough of Leeds,) to the township of South Cropland, in the county of York, the Court of Quarter Sessions confirmed the order, subject to a

:

CASE,

which stated, that the only ground of appeal stated by the appellants in their notice, was as follows that is to say, that so much of the examination of the said Thomas Brayshaw, the pauper, accompanying the order of removal, as states, that he never did any act to gain a settlement in his own right, is untrue, for that the said T. Brayshaw, the pauper, has, in fact, gained a settlement in his own right, in your said township of Holbeck, by hiring and service, in manner following, that is to say, that by a certain

memorandum or agreement in writing, bearing date on or about the 31st of May 1824, and made, or mentioned to be made, between James Fenton and Mathew Murray, of Holbeck, steam-engine-makers and iron-founders, of the one part, and the said Thomas Brayshaw, therein described as the son of Henry Brayshaw, of Holbeck, of the other part, the said T. Brayshaw did thereby agree to work for, and serve diligently and faithfully the said J. F. and M. M, their executors and administrators, from the day of the date thereof, for the term of four years thence next ensuing, as their hired servant, in turning iron work, or any other employment as an artizan they might set him to, and did promise to devote his whole time and attention to such business during the usual working hours, which were from 6 A.M. till 6 P.M., when in the shop, and from 6 to 6, when working out. And also, that he would direct and assist such men as he might work with, or were under his care; and also, that he would give a just account of all his doings in such business, whenever they required him-[other stipulations were then inserted]-in consideration of weekly wages to be paid to him by the said J. F. and M. M, their executors and administrators; and the said J. F. and M. M, in consideration of the work and service aforesaid, did thereby promise and agree to pay, or cause to be paid to T. Brayshaw, at and after the rate of 8s. weekly during the first year, 9s. weekly during the second year, 10s. weekly during the third year, and 11s. weekly during the fourth and last year of the said term of four years, in case the said T. Brayshaw should, during the said term, faithfully serve the said J. Fenton and M. Murray, according to the true intent and meaning of the said agreement, but not otherwise.

The ground of appeal proceeded to state the service of the pauper under this agreement for a year; and that he was paid for all hours he worked for them over and above the time stipulated; residence, &c.

At the trial, the respondents objected, that the hiring set forth in this ground of appeal, was exceptive. The Court overruled the objection, and the evidence was gone into; the agreement was put in, which answered to the statement in the ground of appeal. It appeared that the workmen sometimes worked under hours, when a

deduction was made from their wages, and that no instances of refusal were known to the witnesses. They sometimes worked over-hours at the request of their masters, and were then paid for such overtime at the usual rate of their wages, without any express fresh contract being made. The workmen were generally glad to do so, though they sometimes refused, and the masters submitted to such refusal; no instance of any workman refusing to work during over-hours, when requested so to work, was proved to have taken place during the four years of Brayshaw's service under the said agreement. The witness knew of no such instance; some of the workmen, after their day's work at Messrs. Fenton & Murray's foundry, did, during extra hours, work in the same trade for other masters; Brayshaw himself sometimes worked over-hours, when requested on behalf of his masters so to do, and was, in such case, paid additional wages; he never refused to work over-hours when requested; he had been in the service of the said Messrs. F. & M. for two years. Order of removal quashed, subject to this case.

If the Court of Queen's Bench should be of opinion, that the appellants were entitled to go into evidence in support of their ground of appeal above mentioned, and that the hiring, as set forth therein, was such as, with a service and residence under it, would confer a settlement, the order of Sessions was to stand confirmed; but if the Court should be of a contrary opinion, then the order of removal aforesaid was to be confirmed, and the order of Sessions, discharging the same, to be quashed.

Kelly, Hall, and Pashley, in support of the order of Sessions, relied on the case of The King v. Ossett-cum-Gawthorpe (1), and on the proviso in the agreement, which imported, that the pauper should give a just account of all his doings in the business, whenever required by his employers, which shewed, that he was under their controul at times out of the working hours specified in the written agreement. They contended, that on the authority of the before-mentioned case, the present was distinguishable from The King v. Kingswinford (2), The King v.

(1) 4 B. & Ad. 216; s. c. 4 Law J. Rep. (N.s.) M.C.31.

(2) 4 Term Rep. 219.

Chertsey (3), The King v. Frome Selwood (4), and The King v. Cowper (5), and cited also The King v. Byker (6), The King v. St. John, Devizes (7). They contended also, that the appellant was not bound by the whole of the evidence unnecessarily set out in the ground of appeal; that, in stating an objection, it is not necessary to set forth the evidence, and that the evidence, if set out, may be departed from, in the same manner as the notices of objection given by a plaintiff, are not conclusive on him in an action for infringing a patent-Bulnois v. Mackenzie (8); but the Court may require fuller evidence The King v. the Justices of Derbyshire (9).

The Solicitor General (Sir W. W. Follett), Sir G. Lewin, and J. Ingham, on the other side, were not called on.

LORD DENMAN, C.J.-I do not think we can take the circumstances of the service, in point of fact, as qualifying the meaning of the original contract. The question is, whether that constitutes an exceptive hiring. I think the hiring was limited in point of duration. The master, as far as appears from the written agreement, could not call on the pauper for service in extra hours.

PATTESON, J.-The words of the usual clauses of the contract follow each other close together; it cannot, therefore, fairly be contended, that the limitation of the number of working hours is a mere direction as to the mode in which the work is to be performed, and not a limitation of the master's controul over the employed. I read this as an agreement to serve during twelve hours of the day for four years.

WILLIAMS, J.—All the stipulations with regard to the duty to be performed under this contract by the workmen, are consecutive; an absolute contract for four years; then, a promise to devote, not the whole of his time, but the whole of his time "during working hours;" then, the limitation of

A woman was hired to work in a factory, (the total number of hours' work per week in which is regulated by law,) and agreed to be bound by the following, amongst other rules:-" The hours of attendance are, from six o'clock in the morning till half-past seven at night, excepting Saturday, when work shall cease at half-past four," (the whole, omitting an hour and a half per day allowed for meals, making up the entire number of hours per week so limited):-Held, that the hiring was exceptive, and that she gained no settlement by service under it.

On an appeal against an order for the removal of Alice Waring and her illegitimate child, from Preston to Inskip-withSowerby, the Sessions quashed the order, subject to the following

CASE.

It was admitted, that the birth settlement of Alice Waring was in the appellant parish. The appellants then proceeded to give evidence of a settlement gained by the said A. Waring in the respondent township, by hiring and service with Messrs. Ainsworth & Sons, in the said respondent township; and it was proved that the said A. Waring was hired by the said Messrs. Ainsworth & Sons, in the year 1828, and worked under such hiring for more than one year, at weekly wages, residing all that time in the said township that there was no express contract of hiring, but that she, with the other people engaged in the said mill, worked under and was subject to certain rules, two of which rules were as follows:-" First, each person employed in this factory engages to serve Messrs. Ainsworth & Sons, and to give one month's notice in writing

previous to leaving his or her employment, such notice to be given in on a Saturday, and on no other day; but the masters have full power to discharge any person employed therein, without any previous notice whatsoever. Second, the hours of attendance are from six o'clock in the morning, until half-past seven at night, excepting Saturday, when work shall cease at half-past four. Half an hour allowed for breakfast, and one hour for dinner; and any person not coming to work at the stated periods, shall, for every offence, forfeit 6d., and be deducted for the time they are absent.

Upon this evidence, the respondents contended, first, that the master having power to discharge his work-people at any moment, there was no evidence of any general hiring, and secondly, that by the provisions of the second rule, restricting the hours of labour, and more especially as to the hours of working on Saturdays, the hiring must be considered an exceptive hiring; therefore, that no settlement was gained by such hiring and service. The Court quashed the order of removal.

If this Court should be of opinion, that the said hiring was a general hiring, the said order of removal was to be set aside, and the order of Sessions confirmed; but, if such hiring was exceptive, then the order of removal was to be confirmed, and the order of Sessions quashed.

Whigham, in support of the order of Sessions, was desired to confine himself to the second point. Since the decision of The Queen v. the Inhabitants of Holbeck (1), it is certainly not open to the appellants to contend, on the authority of The King v. Ossett-cum-Gawthorpe (2), that such a hiring, generally speaking, would not be exceptive. But the circumstances here are peculiar. By a series of statutes, (of which those in force at the period of this hiring, were the 43 Geo. 3. c. 73. and 3 & 4 Will. 4. c. 103,) the hours of labour in factories are limited. The work could only be carried on for sixty-nine hours a week, nor for more than twelve a day, exclusive of meals; therefore, the arrangement is, on the Saturday, for nine hours only, and twelve every other day. A contract, based on the (1) Decided on the same day, ante, p. 78.

(2) 4 B. & Ad. 216; s. c. 4 Law J. Rep. (N.S.)

M.C. 81.