« PreviousContinue »
month thtr parted by mutual consent; the master paying her la proportion of wages then due. The Sessions conceited, fiat the pauper, by continuing more than one whole year under this hiring, gained a settlement in the parish of Steventon.—And TBtCouET of King's Bench were of the same opinion; for the service onder the hiring for half a year, and the half a year's service older the hiring for the year,answers the end of the statute, tod is a good service for the year*. Burrow's Sett. Cas. 519.
So in Brightnell v. Westhally, Fa. 1 Geo. 1, the pauper wss hired to serve from three weeks after Michaelmas to tho Mkkad»as then next ensuing, which time he regularly served. Oatheensoing Michaelmas he was hired again by the same master intone same place to serve him for a year, but uodar this se. cood hiring he only served for eleven months.—By Tue Court. By the statutes there must be a hiring for a yenr, and a service for the space of one whole year. Now it appears from thefactf of the present case, that the words of the last statnle are satis, fied, for there was a hiring for a year, and a service for a whole jear; and although that service aas not under the hiring fur a yetr.jti as the serviteuas nexer discontinue*!, we think upon tie authority of the A', v. Overton, and upon considering the t of the legislature in the framing of the former statutes upon
suhject, that the latter statute is answered, and that the per gained a settlement by this hiring and service. 2 Bott, ut'i ed. 417. Foley, 143. 1 Ses.i. Cas. 92. So in the A', v. Aynhoc, Mic. 1 Geo. 2. a parishioner 'Aymhoe was hired into the parish of Bicester from Christ. »<<• t) Micha-lmas, and served accordingly, and at the said ilkkatlwas was hired again by the same master, for a year, ■.d only till Midsummer follow in-r: tho question was, Whether these services gained a settlement at Bi est'r V—On thf Mthoiity of the cases of the K. v. Overton, and of Bright.
W'eUhalley, it was adjudged that they did. But Ray. ■wrfCh. J. and Page J. declared, they thought that the le<ist that the hiring should be for a year, and the service year, and bad it been a case prim* imprcs tonis
• There is alio a case reported in 1. lord liai/moni!, 126, under ten*mtu(ti\e K.v. SoHthmolton in Suffolk, ll! to IV V. 3, wherein ■he same point appears to have been determined; but as the files of the Court of King's Bench, have been searched for the record of this caw, and it cannot be found. Sir James Burrow conceives, that it uaot absolutely impossible but that it may be llie same case u's the A. v. Orrrwn, supra
To* K. v Southmo't >n, according to lord llaymand, was thus; —The [>aup»r was a covenant servant, first for •half a year,' which TM* he served; and then for another year, and served half of that. Toe question was. Whether this was' a service for a year, within the statute V— Rokeby, fl«rl<»«, and GouM,Holt Ch. J. being absent, held, tkatitwas, because the statute designed only that the parly should serve i year.
they should have adjudged it. Foley, 144. 2 Sets. Cat, IIP 2 lintt, Co'ntt's cd. 420.
So also in Hanmere r. Ellesmere, Mic. 4 Geo. 2, the pan per was hired to serve from Lady-day to Christmas, which h« did, and was then hired by the same master for a year% an< served under this second hiring until the end of May, makiiu in all above a year.—This was adjudged sufficieut to gain a settlement. 2 Bott, Const's ed. 422.
So also in the K. v. Underbarrovi, and Bradleyficld, Ihl. 6 Geo. 5, the pauper at Christmas hired herself to serve till the next Whitsuntide; and at the said Whitsuntide she hired herself for one year, to the same master, to serve him from thai time till Whitsuntide next following, and she continued in hei said master's service under the last hiring, till the beginning of the ensuing March, and then she and her master parted by consent.—The Sessions were of opinion that she gained no settlement thereby; and in support of the order of sessions it was observed that the two foundation cases, viz. that of Overton, and that of Southmolton, were both antecedent in time to the stat. 8 & 9 Will. 3, which, besides a hiring for a year, requires a continuance in the same service for a year; for that the hiring? and the whole of the service in both those cases were prior to that statute ; and before that act a hiring for a year, and forty days subsequent service, were sufficient to have gained a settlement. It was therefore contended, that the question was still open ; for as Raymond, Ch. J. and also Mr. Justice Page had declared in the case of the K. v. Aynhoc, that if it had been then res inlegra, they should have adjudged it to be no settlement; and as it now appeared to be so, the two supposed precedents were in fact no precedents at all.—But by lord Mansfield and the Court. The authority of these cases will be just the same,whether the facts were prior to the statute,or not, because the Court determined them as upon facts subsequent to the statute; and the practice has been adhered to: besides the determinations are in favour of settlements: which is sufficient to turn the scale if it hung quite even. For several reasous therefore we should not depart from these adjudged cases, but chiefly from the inconvenience of altering and overturning settled determinations. It is best itare decisis. The overturning settled determinations, especially in these cases of settlements, would be of Tery bad consequence: they ought not to be shaken. Burrow's Sett. Ca$. bib.
So in the K. v. Bugicorth, Ea. 22 Geo. 3, the pauper about nine weeks before Old Michaelmas 17S0, was hired in Ratby, for one meek, at 2*. 6d. wages, and continued to live in that ser. vice at Ratby, by the week, till Old Michuelmai, and received her wages every week: during that time she considered herself at liberty to have quitted her service at the end of any one week and to have hired herself to any other person ; but at Old Michaelmas 1780, she was hired for a year from that time, and •he served till about a fortnight before the following OldMichad
mi; when she and her master parted by consent; being paid h?r wages in proportion to that time : she was employed in the smc tanner during the time she served by the week as under the hiring after Alkhaclmaf—The question was, whether t!i£ pauper had hereby gained a settlement iu Rutby?—And by Hife J. The question is perfectly clear. The pauper did not hit in ibis family occasionally, or work under their directions uerclras a day-labourer or chair-woman, but constantly as a ru«ial servant, and employed throughout iu the same services .* and i hiring for a year with a year's service iu the whole, and that ofa similar nature throughout, though it is made up of 80•e al hiiinjs(provided there be no discontinuance,), gives a set(SWUi fluffi i J Here is a continuance in the service for a year, and it has been long settled, thai where the service extends tiroKghout the year, you may couple any number of preceding h'ring* ud vertices v»ith a hiring for a year. The extent and dunuooof the several preceding services, where such services Uvtbttnsimilar, have never been adjudged to vary the iaw;
butuW must be one entire hiring for a year. Ashhurst J.
coaarrti. Cnld.Cas. 179.
And the service under an imperfect hiring, niay be connected »ith the service under a perfect hiring, although under such perfect hiring there may not have been a residence of forty tys.-Thos hi the K. T. the Inhabitant!! of Aihon, Ml. 33 o-f*. J, thepanper was hired in Church Stow eight days alter Mkhaclmas, to the Old Michaelmas following: and continued in his master's service till the day after Old Michael mas. •<»,*ken he was hired by his master till the Michaelmas tol■ sod under that hiring he only strved 10 days. Tut ^uuqm thought that the second hiring was a luring for a year, oat that the pauper had gained no settlement under it, us lie ^Mterxcd AQdays subsequent to thai hiring—By lord KenJ. Upon one point of this case there can be no doubt, !'4ltogainasettlcment, the service for a year need nut be un.
r a hiring for a year. Whether that question via: rightly 'trifled oiemailv or not, it is now too long settled, and has ^loo often recognized to be again disturbed. I ha>e alwa)s (*ilercd it as equally settled, that if there was au hiring for a
■■■ roust:active service for a year, and a residence for Amy ^fs, that it was sufficient to confer a settlement; and J have r"'.vr heard it advanced, previous to the present argument, 'stflit service for forty days, must be subsequent to the hiring Wsyear. That this has been the general understanding upon '•^asubject it is fair to suppose, since no case has been adduced 10sspixirt the contrary position.—Ashhurtt J4 and BullerJ.
-<nt. and Grose J. doubted. The case therefore stood : rfT for further argument; but afterwards lord Kenyon declar. •v,ih,,.it any further argument, that the court were of opinion that the pauper had gained a settlement in Church Stow; althottgh there had not been a service of forty days subsequent 10 thf last airing, b'i'erm Rep. S8. Nolan's Rep. 167.
If a servant, after serving a year, part of which was urn
a defective hiring, continue in the same service for part of ar
ther year,the justices may presume a hiring for the second ye
—Thus in the K. v. the Inhabitants of Hales, Tr. 34 Geo.
it was stated that the pan per being settled in Wrenthams
fortnight after Old Michaeimas 1792, heard from Miss L.Bai
ham of Dcccles, that her father, a farmer at Hales, wantt
servant, and agreed with her to go to Mr. Barnham's a rno
upon liking: she went thither accordingly, and in the spi
following, bliss Barnham told the pauper if she behaved well
did her work properly, she was to have 4/. for a year ; the pau
continued in this service without any other agreement, until
Christmas following, when she quitted the service ; but a f
night after Michaelmas 1793, she received 4/. for a year's wi
then due, and for the remainder of the service from that 1
she received 18d. a-week, being the proportion of wages I
due at the rate of 4/. per ann.—It was observed, that this
was defectively stated, because the sessions had not found a
fact that the pauper was hired, either for a year or genera
cither at the time when the second conversation took |i
between the pauper and the master's daughter, or at the en
■ the year...the Court therefore could not give judgmentu
it; and it was ordered to be sent back to the sessions.—
lord Kent/on, Ch. J. said, Though a retrospective hiring
tainly is not suthcieutto confer a settlement, yet as the pa
continued in the same service after the expiration of the
year, there was abundant ground for the justices to have
sumed a hiring for a year from that time ; the justices, after I
iug this intimation of the Court, will not probably find the
. of a hiring for a year, which will put an end to the case
Term Rep. 668.
nisconijnunnce ''"t where the hiring is imperfect, and there is a completi
oi Mrvkr. absolute discontinuance of the service under it, such se
cannot be coupled With a service under a new hiring for a
for the purpose of gaining a settlement. This has prot
many questions as to what shall be considered as a com
and absolute dissolution of the service.
Thus in (he K. v. Fifehnad Magdalen, Mic. 11 Geo.', pauper hired himself to u master in/fts/ Stotcer, from AffVl mer to Lttdt/.d'iy, being three quarters of a year, for 'At JLadit-uaij he received his said wages of 40s. and hi 'master's service. He then weut to his father's house in 4 Sfourr, before he and his said master had any discourse i 1 continuing in his service or making any new contract.' lie had bceu with his lather about one hour, his lather ai linn logo <o his ma*<er,and see if he could not agree wit for a year, He accordingly went up thereupon, and his inaMer, and agreed with him lor a year, at 3/. K>>. abut he lited with his master only half a year in pursiiai such srcoixi agreement.i When he weut from his master's he had uo clothes Omi what he wore, except a shirt, whii left at his mastoids house. It was objected that this was no settlement, for that there shonM bp. first a hiring for a year, awl tkcti a ser> ice for a year, under that hiring, whereas the fir*l hiring, in this case, was only for three quarters of a year; and' that contract was discontinued and at an end, before the 'second contract wascntered inon,' so that it was not aeontinam; in the same service.—B'it bv L'e, Ch. J. It is now established, tha> a hiring for a year and a service for a year will gain a settlemRnt, though all the service be not in pursuance of the first brrine. Tneonlv difference between the cases adjudged Mk) the present case is, that in »he case now before us, it it staged, that 'after the servant had received his wages for the * uW quarters of a year, and left his master's service, he went 'to Ws father's, was absent about an hour, and then came back 'to his master, and entered into the fr«sh agreement for a year.' Now I see ao reason why this should be looked upon as a dit. continqanc* of the service. The servant was a little doubtful about sue* contract; he socs to consult his father, and in an hoar's time returns and m kes a new contract, and serves as long under if as to make it up (in the whole) a complete service for a year.—Pog-e J. and I'robyni. concurred.—Chappie 3. also eooenrred in opinion that ttiis short absence under theso circumstances, was no discontinuance of the service. Upon nert/ Hoe contract, there is a sort of a di continuance. The h&tday of the former contract was the first day of the second service'; and this was only an hour's absence within the space «i that same day; therefore he remained a servant during the 'hole time of the completion of his year. Burrow's Sett. Cas.
_ Sum the K. r. EUi<field, Hit. 17 Geo. 3, the pauper was hired fin the 6th ofDecember, 1773, to one DiUlman, of the pariss of Elli*jUld,to serve till the Mkhaclmm 1774-He went into fhesiTTice the next day, and continued therein till nine o'clock, on said Michaelmas-diy pat which time his master paid him his wages, and the pauper took his clothes, and left his master's ■owe and service. About half an hour afterwards, his master came to him in the said parish,and desired him to stay with hhn; but the pauper desired a sum lor his wages, which the master refused ; saying, he should see him presently at Basingstoke fair, held that day for hiring servants. That at the tair, at oue o'clock, he there made an agreement with the master to serve han till Michaelmas following, 177.1, and went into his service that evening, being the evening of the said Michaelmas-dat/, 1174; and continued therein for three months. The pauper thought himself at liberty to hire himself to any other person as Mou as he left his master's house t and should have hired himself toauy person who would have given him (ho wages he asked of kb Baiter.— By lord Mansfield. There is not the difference of an iota between this case and that of Fi/ehead • and every armament used there would apply in the present. It is said there, 25 here, that the pauper left his master's service, rc.