termine that a man should lose his settlement by serving his country in the militia. We are all of opinion that this was a good settlement at Chipping Norton. 1 Doug. 8vo. ed. 39.

But if upon the hiring it be agreed, that the service shall be only during certain hours in the six working days, and that all the rest of the time, as well as on Sundays, the servant shall be at liberty and his own master; this is not a good hiring for a year. Thus in the K. v. Macclesfield, Ea. 31 Geo. 2, the pauper being settled in Sutton, and maintained by the overseers of that parish, was at the age of eight years, without the knowledge of the overseers, but with the consent of his mother, and of his own free will, hired to a person of Macclesfield, to work at a silk-mill there for three years, at so much per week. The master was not to find the pauper either 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, the pauper was at his own liberty, and his own master. He continued three years in the service; but frequently absented himself from work; sometimes for a whole day or longer; and at other times for several hours in the day. For all which defaults, deductions were made out of his wages. During the whole three years, he lodged with his mother in Macclesfield, who received his wages: and the same not being sufficient to maintain him, and the mother being unable to work, the overseers of Sutton contributed 6d. a week, during the whole time, towards his maintenance. The question was, Whether the pauper had gained a settlement in Macclesfield?-By lord Mansfield. There is no foun dation, on this state of the case, to imagine that it could be a settlement upon the ground of an apprenticeship: the only question is, Whether it amounts to a settlement in Macclesfield, 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 absolately void, but only voidable at his own election): but the mas. ter 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 to be at his own liberty, and his own master. 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 that the parish of Sutton have not understood it as such, because they have contributed towards his maintenance during the three whole years. Upon the whole, there fore, this pauper's settlement is clearly in Sutton. The other judges concurred. Burrow's Sett. Cas. 458.

So in the K. v. Buckland Denham, Hil. 12 Geo. 3, the pauper being settled with his father in Mells, was at the age of se venteen hired by his father to a clothier of Buckland Denham : and it was agreed in writing, that the master should teach the parper the business of a shearman; and that the pauper should

serve him as a shearman for five years, at certain weekly wages. He was to find himself in meat, drink, washing, and lodging and was to work shearman's hours only, which are uncertain and he was to be at his own liberty at all other times. The pau per served his master as a shearman during the said term, work ing the same hours as his master's other shearmen did.- By lord Mansfield. This is not a good hiring; because there is a exception in it, that the pauper was to work shearman's hour only, and to be at his own liberty at all other times. But i the contract be an absolute contract for a year, the not work ing on Sundays or holidays, if it be the custom of the countr not to work on those days, ought not to hinder the gaining settlement; because, otherwise, no such servant could gai a settlement in those counties where such a custom is establish ed. The other judges concurred. Burrow's Sett. Cas. 694.

a

So in the K. v. Kingswinford, Ea. 31 Geo. 3. the paupe being settled at Wakefield, entered into an agreement with or Bullock, to work with and serve him as an artificer in the a of a glass-grinder, or in any other art that he should think pr per to employ him in, at certain weekly wages for seven year. he was not at any time during the term to work for or ser any other person; or leave the work and service aforesai without the leave of his master; but he was to continue and in such service as aforesaid, from six o'clock in the morni till seven in the evening of each day during the said term, i cluding half an hour at breakfast and one hour at dinner tim (except on Sundays), if in proper health. The pauper serv his master two years at Birmingham, under this agreeme and lodged and boarded with him. He occasionally worked the night-time, and often went on errands for his master Sundays, and never worked with any body else during th time, nor thought himself at liberty so to do. It was attem ed to distinguish this case from that of the K. v. Macclesfie by observing that the Court there decided, that there was exception in the contract of hiring; whereas it did not h form a part of the contract, that the pauper should be his o master after seven o'clock in the evening, and on Sunda but on the contrary he expressly stipulated not to work for other person during the whole term; and it is stated in case, that he actually did work for his master occasionally the night-time and on Sundays. But lord Kenyon, Ch. J. S That there was no real distinction between this case and tha the K. v. Macclesfield: for that the fair construction of agreement was, that the pauper was to be his own maste Sundays, and on other days, after he had served the thir hours, because he had only covenanted to serve those ho and that the expression of one was the exclusion of the of And he added, that it was essential in these cases that the vant should be under the power and coercion of the master ing the whole time- 4 Term. Rep. 219.

* See the case of the K. v. St. Agnes in p. 118 supra, where this was determined.

So in the K. v. North Nibley, Mic. 33 Geo. 3, the pauper, who was born at North Nibley, was hired by a clothier of Wotton-under-Edge, for five years, as a colt shearman, to work twelve hours each day; he was to have so much per week, and was to leave the usual quarterage in his master's hands to secure the performance of the contract. He neither boarded nor lodged in his master's house, but served him the whole time, and received his wages and quarterage, and lodged the whole time in Wotton-under-Edge.-By lord Kenyon Ch. J. It is of great importance that points which have been decided, should not be set afloat again; and I think the determi nation, in the case of the K. v. Macclesfield, puts the question at rest; for it was there held, that there must be a hiring and a service for a year, so far that the servant must be under the Control and coercion of the master during the whole time; but this case is most like to that of the K. v. Buckland Denham, where the pauper was hired for five years, to work shearman's hours only; now here the servant was hired during the space of five years, to stand in a certain relation to the master during certain hours in the day, namely, to work twelve hours; and though the word only is not used here, the fair import of the words which are used conveys the same idea. It is admitted, that if there had been an express exception in the contract, no settlement could have been gained by serving under it; and this is equivalent to it, for it amounts to this, that the pauper should be considered as the servant for only twelve out of the twentyfour.-Grose J. concurred, and said, that the master could not have compelled him to serve more, or required any other service of him; and it was therefore in substance the same as it Sunday and the rest of the twenty-four hours had been excepted. 5 Term Rep. 21.

But if Sundays are not expressly excluded, a service, under a weekly hiring, for a year, will be sufficient to gain a settlement, although the servant may have been employed in divers capacities during that period: this was decided in the K. v. Sutton, Tr. Ter. 41 Geo. 3: the pauper had been removed from Mitcham to Sutton; and it appeared, that the pauper, before settled at Cheam, hired himself by the week, to Mr. Hatch of Sutton; nothing was said about Sunday in the contract; but the pauper worked on that day occasionally, when asked by his master, without receiv ing additional wages, though he sometimes received some victuals: he received his wages every Saturday night or Sunday morning, and resided in his master's house during no part of the time, but boarded himself: that at the expiration of nine months, on his master's family servant going away, the pauper was hired in his place for a year at 121. per ann; and served eleven months under that hiring.-The sessions were of opinion that the pauper was settled at Morton, and confirmed the order of removal.-IT WAS OBJECTED, first,that the servant was not under the control of the master the whole year. Secondly, that the services were not ejusdem generis, and therefore

could not be joined ; and as to the first, it was said that Sundays were not included in the weekly hiring. But by the court, the hiring was by the week, and nothing was said about Sunday, and he did whatever his master bid him to do on that day; what are we to collect from thence, but that the parties considered that Sunday was included, and the justices have found by their order that it was: then, 2dly, as to services not being ejusdem generis, there is no knowing what that means, nor where the line is to be drawn; suppose a postillion were made a coachman, would those be deemed services ejusdem generis? Under both contracts the pauper was a servant in husbandry, only board. ing in the one case out of his master's house, and in the other boarding in it; then what is this but the same sort of service throughout?-Order affirmed. 1 East's Rep. 656.

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 a 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, BY THE COURT, there can be no colour for contending that the pauper gained a settlement by this hiring and service: 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: an express reservation of Sundays out of the original contract of hiring was considered sufficient, in K. v. Macclesfield, to prevent the gaining of a setment under it. The K. v. Over, Tr. Ter. 41 Geo. 3. 1 East's Rep. 599.

So if it be agreed on the hiring, that the servant shall be at liberty to serve elsewhere during a particular month, this is not a good hiring for a year. Thus in the K. v. Bishop's Hatfield, Hil. 31 Geo. 2, the pauper was hired from Michaelmas to Michaelmas, for 5l.' wages with liberty to let himself for the harvest month to any other person. He served till the harvest month, and then hired himself to another person for that month, and received wages for it; during that month he brewed for his master, and after the harvest month served his masz ter for the remainder of the year, and received his wages of 51. He lodged in his master's house at Saundridge, during the whole year.-BY THE COURT. This is, in effect, only a hiring for eleven months it turns upon the obligation the servant was under; and the servant was not obliged to serve the whole year; therefore it is very clear that this is not a hiring within the act. Burrow's Sett. Cases, 439.

So in the K. v. Empingham, Mic. 15 Geo. 3. the pauper was a shepherd; and some time before Harborough Fair, bired himself to one Hubbard of Fleckney, from that Harborough Fair to the Harborough Fair following, being one year, at the wages of three pounds; subject to a liberty of being ⚫ absent eleven or twelve days in the sheep-shearing season, and to have the benefit of what he got during that time.' Ile entered upon his service, and served for above three quar

iers of the year. He then went to shear sheep for about eleDen days; and served Hubbard in Empingham the remainder of the year. He received to his own use what was paid him for sheep-shearing, besides his wages of 31. One day he asked his master to go a sheep-shearing. His master said, he was going out, and could not spare him that day ;" and in cou sequence of that, he did not go. The pauper, during the shear. ing-season, returned frequently to his master's house, and did what work was to be done; and his master found him his board, as often as he returned home. It was insisted, that the settlement of the pauper was not in Empingham, as this was not a hiring for a year: it being part of the original contract, to except eleven or twelve days out of it. On the other side it was argued, that this ought not to be considered as an exception out of the original contract; but upon the foot of a leave of absence consented to by the master.-BUT THE COURT were unanimously of opinion, that this was an exception out of the contract, at the time of making it. They held it to be part of the contract: it is not to be considered upon the foot of leave of absence given by the master; who, being bound by the contract, could not refuse agreeing to it. Burrow's Sett, Cas. 791.

How far custo

are good.

As the hiring must be for a year; it has been determined, that a hiring from May-day to Lady day and then from Lady- mary hirings day to May-day, and so on again in like manner for another year, is not sufficient to gain a settlement; -for the Court said, the hiring and service must be for a year. Horsham v. Shipley, Mic. 12 Ann. Foley, 134.

So in Pepperharrow v. Frencham, Mic. 1 Geo. 1, the pauper was hired on the third of October, to serve a person of Pepperharrea from the said third day of October until Michaelmas then next, for five pounds ten shillings wages. He lived with bis master till Michaelmas in the evening; and then, upon his master's request, staid for 4 or 5 days longer (so long after as brought the year about, 1 Strange, 83); and then received his five pounds ten shillings wages. The orders being removed into the court of King's Bench, the question was, Whether this hiring was sufficient to gain a settlement at Pepperharrow ? -THE COURT,upon consideration, were all of this opinion, that this hiring was not sufficient to gain a settlement; for it is not a hiring for a year within the statute.-And by Parker Ch. J. If we once go out of the act, where must we stop? Foley,

135.

So in the K. v. South Cerney, Eu. 5 Geo. 2, at North Leach in Gloucestershire are annually held two mops or meetings for the hiring of servants; the one on Wednesday before, and the other on Wednesday after Michaelmas-day. The pauper was hired on the Wednesday after Michaelmas-day, to serve to the Michaelmas following; which he did. It was urged, that this being a hiring according to the course and custom of the country, was a sufficient settlement,—BUT BY