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Willes J. There was no waiver of the original agreement; an it is admitted, that an agreement at first to work by the picc would have been sufficient.-Ashhurst J. was of the same op nion.--Buller J. It is not necessary for all the service to under a hiring for a year. But there can be no doubt but t original agreement still continued; and besides the second hiri being general, would be equivalent to a hiring for a year.-0 der of removal to Alton quashed. 2 Bott, Const's ed. 38 Caldecot's Cases, 424.

So a hiring for three years at so much per week, to wo twelve hours, and to be paid for extra hours, is a good hiring. Thus in the K. v. Ozleworth, Tr. 24 & 25 Geo. 2, the paup settled in Ozleworth, agreed with a cloth worker in Wotton-und Edge, to serve him in the said business for three years, at much a-week. He was to work only twelve hours in a d and to have one penny for every hour he should work ab the twelve hours; the master was to retain 6d. a week out the wages, as a security for the pauper's performing his ag ment; but which was to be paid to him at the end of the term if the master should discharge him; but to be kept by the ma if the pauper quitted his service before the end of the term; master was not to find meat, drink, washing, or lodging, for pauper during the term; and it was understood between th that the master might turn him out of his service at any during the term; paying the sixpences before retained. pauper worked under the agreement for about six months; then, being ill, absented himself for three months; and ther turned to, and was received by his master, with whom he tinued to work till the time of his being removed by the o being for about three quarters of a year after his return. pauper lodged during the whole time in Wotton-under-Ed but not in his master's house. It was insisted, that the pa had gained a settlement at Wotton-under-Edge; as there an actual hiring for three years, and a service under it for year and a quarter.-THE COURT were of the same opi and quashed the orders of removal to Ozleworth.---And Ch. J. said, How could the justices remove the pauper o the service? It appears that the man was actually in the se at the time of the removal. Burrow's Sett. Cas. 302.

So a hiring for eleven months, and to give the ma month's service in, beyond the eleven months, is a good for a year-Thus in the K. v. Milwich, Tr. 30 & 31 Geo. 9 pauper was hired by a person of Milwich, for eleven m for 4l. 10s.; and it was agreed that the pauper should giv master a month's service in, beyond the eleven months. pauper served the eleven months, and also all the gi month, except the last three days; and as to those three the pauper could not say whether he served them, or went without serving them; but he received the whole 41 wages. It was moved to quash the orders, upon the g that there must be a complete hiring and service for a y

order to gain a settlement; and that this could not be a good service for a year; because three days were wanting at the end of it. But THE COURT were extremely clear, that this agreement (taken altogether) was a manifest contract to serve for a year; notwithstanding the form of expression (which, by the way, they considered as an attempt to prevent the man's gaining a settlement, by a very paltry evasion). The real question is no more than, Whether eleven months and one month make twelve months? There are no particular technical words necessary to make a hiring for a year. The substance of this agree ment is, to serve twelve months for 47. 10s. And what significs the variation of expression? Every contract to serve, is a contract to serve for a year; unless there be something to explain it otherwise. Now certainly here is nothing to explain it otherwise; it was an entire single contract; and no action would have lain for the wages, till the end of the whole twelve months. As to the servant's going away three days before the end of the year, the state of the fact does not support the objection; for it does not appear that he did go away before the end of the year: it is only stated, that he could not say whether he served those three days, or went away without serving them. But he received the whole 41. 10s. wages: which, at least, seems to imply the master's consent or permission. Burrow's Sett. Cas. 433. So if a man hire himself for a year to learn a trade, a service under this hiring will gain a settlement, although he is to have no wages.-For in the K. v. Hitcham, Hil. 33 Geo. 2, the pauper let himself for one year to a carpenter at Hitcham, and entered upon and continued in such service for a year, according to his contract. He was to receive no wages, but his master was to teach him as much as he could, during the year, of the trade of a carpenter; and to provide him with meat, drink, washing, and lodging; and the pauper was to do all his master's lawful business in his farming way; he was accordingly employed by his master, not only in his business of a carpenter and his farming way, but also in doing any other work that his master ordered him.-THE COURT were clearly of opinion, that the pauper was settled at Hitcham. Burrow's Sett. Cas. 489.

So in the K. v. Coltishall, Ea. 33 Geo. 3, the pauper being 18 years of age, and then a bricklayer's labourer, was clubbed with a bricklayer of Coltishall for three years, at so much per week. The term clubbing, signifies a person contracting to serve for the purpose of being taught some art or trade, and to have the less wages on account of learning the trade. The pauper was therefore to be taught the trade of a bricklayer, and The wis to do any work his master set him about: and not to be absent from his business during any part of the time. He served two years and upwards, and then, upon some difference, his master and he consented to part. The case was to have been argued, but lord Kenyon Ch. J. said, That it was impossible to raise a doubt upon it, for that upon the concluding part of the case, which stated, that the pauper was to do any work that his

master set him about, was decisive to shew that he must be cons dered as an hired servant, and that although one of his objec was to learn a trade, that was deemed equivalent to part of wages. 5 Term Rep. 193.

So in the K. v. Markham, Hil. Ter. 41 Geo. 3, when t pauper had been removed from St. Paul Norwich to Markha and the sessions, on appeal, had confirmed that order; it appea ed that the pauper, who was before legally settled at Markha had in 1782 been clubbed to a bricklayer of the parish of Paul Norwich, for the purpose of learning his trade at a certa rate of weekly wages; with a proviso,that if he were preven by bad weather, illness, or want of employment, there sho be a proportionable deduction of wages; THE COURT held t this could not be distinguished from the K. v. Coltishall, wh a settlement was gained under such a hiring; and that the pau in this case gained a settlement by serving a year under the hir though occasional deductions were made according to the ab mentioned proviso.-Both orders quashed. 1 East's Rep. 2

So if it be the custom of the country to let the servant ha every Sunday and holiday throughout the year to himself, servant, notwithstanding he uses this privilege, will,on a hir for a year.and by serving that year, gain a settlement.—Thus the K. v. St. Agnes, Tr. 10 Geo. 3, the father of the paup when he (the pauper) was about fifteen or sixteen years of a contracted with one Nankivell, for his son (the pauper) to w at the said Nankivell's stamps in the parish of St. Agnes, one year, at the yearly wages of 51. The stamps are mills which several labourers, men and boys, are employed in clea ing and manufacturing tin. In pursuance of this contract, pauper served in the stamps for a year, by working the daily, except holidays and Sundays, according to the custo tinners. His father received his wages as he had occasion it; but during the said year, the pauper ate, drank, and lod with his father, at his house in St. Agnes; serving the said A kivell at his stamps, and in no other capacity, nor ever bec ing a part of his family.-It was contended, that the pa did not hereby gain a settlement, for that this is rather the of a journeyman, than a hired servant. He was resident his father, and, except as to performing the stipulated lin service at the stamps, was entirely his own master. It was a particular service that he was bound to perform. The m had no right to employ him in any other service. And Sun and holidays throughout the year were absolutely his own out any control from his master.-BUT THE WHOLE COURT unanimously of opinion, that the pauper had gained a ment in St. Agnes; they held this to be an entire contrac a year, without any exception contained in it, and the service according to the custom of the country. But they said,

* See the like point in the case of the K. v. Little Bollon, in

supra.

there is a distinction between the exception being part of the ori giaal contract *, and its not being so; here it is not so; and they said, that the question turned entirely on this distinction. Burrow's Sett. Cas, 671.

So if the servant be hired for a year, with permission to be abseat for a month to attend his duty in the militia, upon find. ing another to do his master's business; a service under this hiring will gain a settlement. Thus in K. v. Westerleigh, Mic. 14 Geo. 3, the pauper, who was settled at Westerleigh, having been entered and sworn to serve as a substitute in the militia, was, about a year and an half after, hired for a year to a person of Old Sodbury; but at the time of his being hired, he told his mistress that he was in the militia, and might be absent about a month in the year, to attend on that duty; but he at the same fine told her, that he would pay a man to serve in his place, or else would make her an allowance out of his wages, for the time he was absent; he accordingly entered on his service, and serv ed till the month of May following; when he joined and attend. ed the militia for thirty days; and afterwards returned to his service, in which he continued until the end of his year, and then made an abatement of eight shillings out of his wages, for the time he was absent out of the service.-It was argued, that this man gained no settlement at all in Old Sodbury, for that here was no hiring for a year. For though the words were to serve for a year, yet a hiring for a year, with liberty to be ab. sent for a month, is really only a hiring for eleven months: and when a part of the year is excepted out of the original contract, no settlement can be gained.-By Aston J. (Lord Mansfeld being absent). Absence for a particular time, with the mas ter's leave, not agreed for at the time of the hiring, does not vitiate the contract. But if the original hiring be with liberty to let himself for a particular month to any other person +, it makes a clear chasm in the original contract; it being plainly a hiring for less than a year. In the present case, however, the 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, therefore, not a chasm in the contract, but a dispensation with the personal service.— Willes J. premised, That settlements are to be favoured; and that militia-men ought not to have any additional hardships put upon them, if it can be avoided. In the present case, the servant agreed, either to find a substitute, or to abate out of bis wages. Now this was at the election of the mistress and

As it was in the case of the K. v. Macclesfield: which case see in p. 121 infra.

+ As it was in the case of the K. v. Bishop's Hatfield; which case see in p. 124 infra.

she dispensed with his absence upon an abatement out of his wages. Ashhurst J. 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 distinguishable from that where the original hiring was with liberty to let himself to any other person for the harvest month*. That case was certainly no more than a hiring for eleven months: but in the present case, there was an alternative; and it might happen that the servant should not be called out. Therefore he concurred in supporting the settlement. Burrow's Sett. Cases

753.

So if the servant be a ballotted man in the militia, and it i agreed on the hiring, that he shall serve an additional month a the end of the year, in lieu of that for which he may be absent as the master cannot by law prevent the servant's absence upo this duty, the servant shall gain a settlement, although he doe not serve the additional month.—Thus in the K. v. Winchcomb Ea. 20 Geo. 3, the pauper hired himself in the parish of Chip ping Norton, five weeks before Michaelmas, for a year; an at the time of the hiring, it was agreed between him and h master, that his wages should be paid weekly, at eight shilling per week; and that, being a ballotted man in the militia, should be absent for the month, and, in lieu of that month, shou serve another at the end of the year. He was according absent thirty days in the militia, and then returned to his se vice; but he only continued three weeks of the month which w agreed to be served in lieu of the month he was absent in the m litia, leaving his master a fortnight before Michaelmas. He e pressly swore, that he did not serve his master a year by of week; the question was, Whether the pauper had hereby gai ed a settlement in Chipping Norton? The case was argue and the court took time to consider of it; afterwards lord Mar field, Ch. J. delivered the opinion of the Court There is in t case a hiring for a year, and there is also a service for a ye if it were not for the month's absence in the militia. A serv must be for a continuation without interruption, or adding gether broken pieces to make up the year. But here the agr ment, as to the absence for a month,in the militia, was only wi would have been implied,und what the master must have conse ed to. The year was completed five weeks before Micha mus, and the additional month agreed for was only in the nat of a compensation for the want of the pauper's service while sent in the militia, and equivalent to a déduction of so m wages. This case, if not the same, is very like that of West leigh. The court ought to lean in favour of settlements; the bad consequences would be very extensive, if we were to

*This was the case of the K. v. Bishop's Hatfield, which see p. infra.

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