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him. And they agreed that this, being the case of an executor, was stronger case than that of Solebury and Ivinghoe, where the second master was only assignee of the farm, a mere stranga. Barrow's Sett. Cas. 179.

An absence created by the default or fraudulent contrivance Absence from of the master, shall not prevent the servant's gaining a settle-service, ment-Thus in Eastland v. West Horsley, Tr. 8 Geo.1,a servant

hired for a year, and the day before the year expired the master told him, that to prevent his gaining a settlement in that parish, he should go away immediately: which the servant refused to do, insisting to serve out the year, whereupon the nata tarned him out of doors.-THE COURT held this to be chafrand in the master as should not prevent the settlement the servant. 1 Strange, 526.

So in the Kr. Islip, Ea. 7 Gco. 1, the servant, three days before his year was up, asked leave of his master to go to a statnte fair to be hired; the master refused; but the servant persisting he must go, the master replied: I am resolved you shall

oment in this parish, and therefore, if you will go, hall be for good and all."No," says the other, "I will

the year," and thereupon he went, but never returned during the last three days. When he came to be paid, the master deducted six-pence for the three last days, but the servant ressed to allow it, the master, however, refusing to pay it, the servant took the rest of his wages.--It was objected, that going away three days before the year was up, and never arning again during the year, was a forfeiture of the settleBut by THR COURT, though that would, prima facie, be a good objection, yet, as this case is circumstanced, we are

og it cannot prevail. The servant knew his master de Sed part with him at the year's end, and therefore applied fat a go to the statute-fair, to provide himself; the master reasonable a request, coupling it with a declaration, the servant should gain no settlement with him, which is a Lodge of fraud on the side of the muster that ought not to preal, di, therefore, the request was reasonable, and upon a st ground on the side of the servant, and the refusal unreasonable so the side of the master, we think the servant's going aferaard without leave is no forfeiture of his former service; pecially if we take in the declaration the servant made at that

that he would serve out the year, and his refusal afterand to allow the master six-pence for the last three days, which plainly shew that the contract was not dissolved before head of the year. 1 Strange, 42304

St in the K. v. Clayhydon, Mec. 31 Geo. 3, the pauper, be nd in Dunkeswell for a year, served till nine days before thepiration of that year, when he went away on a Sunday , in order to get another place when his year should be thout asking any leave of, or mentiqning it to h his mas in the morning, when he asked his master what work he should r; returned on the Tuesday following about six o'clock

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go about: the master told him he might go and serve the mas ter he had worked for the day before. He saw his master about an hour afterwards, who then paid him his wages up to that time only. No conversation passed; he then went away. and did not afterwards return: he wished to have staid out the year, but his master would not let him.-By lord Kenyon Ch J. It is now too late to say that a constructive service, pur suant to a hiring for a year, will not confer a settlement on th servant. But I do not know that it has ever been decided tha a settlement was obtained, unless by construction the relatio between master and servant continued during the whole year.The case of the K. v. Islip does not govern the present. The the servant did not return until after the expiration of the year and the facts of that case left the question open, whether not the relation between the parties subsisted during the who year. The Court there thought that the master improper refused his consent, and that though the servant were not in t actual discharge of his duty in his master's house, yet, as was liable to be called into the master's service during the mainder of the year, that he was constructively in that serv down to the end of the year. But the present case differs fre that, because during the continuance of the year a further was done. When the servant returned after his absence, master not only found fault with him but refused to take again into his service: it is true, that the servant wished to c tione, but both parties did that which put an end to the c tract; the one paid, and the other received the wages. Af that period, the servant was no longer subject to the contro the master. In the K. v. Islip, the servant was under the ter's control during the whole year: he was liable to be ca into the master's service whenever the master thought prop but here the relation between the master and servant was scinded before the end of the year by the act of both part by the act of accepting the wages, the servant agreed to pu eud to the contract. Then it is impossible to say, that t could be a constructive service in this case, when the pa themselves, by mutual consent, put an end to the relation master and servant within the year. 4 Term Rep. 100.

So in the K. v. Frome Selwood, Tr. 6 Geo, 3, Richard St the husband of the pauper, was hired for a year at hi Weston; and accordingly served in King's Weston till w ten days of the end of the year; when Stent declaring to master that he wished not to be settled in King's Weston, ed his leave to go and visit his relations; to which the ter consented. After the year was expired, Stent returne his master, and then hired himself as a day labourer; and as continued, with him for three months. Stent allowed for the he had been absent the preceding year out of his daily wage THE COURT held the settlement to be in King's Weston zi ing upon the leave and consent of the master as fraudulent a mere evasion of the settlement. Burrow's Sett. Cas. 56

So in the K. v. Sulgrave, Ea. 28 Geo. 3, the pauper, being serted at Sulgrade, was in the month of February hired to a Mr. luzes in Stuchbury, to serve till Old Michaelmas followhe, which he accordingly served. On the Friday before Old Mihaelmas his master asked him if he would stay again; the paper said he would, if they could agree about wages, and Dard are guineas, which the master thought too much. The proper inmediately set out to go to a statute, and having gone At tea yands returned for some things he had forgotten. He fira met his master again, who said he would give him the five cas, and gave him one shilling earnest. The master, while a patting his hand in his pocket for the shilling, said, You shall go away a fortnight at Michaelmas, because of your test; and I will give you that fortnight to get what you

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to which the pauper then agreed. The pauper accord. sweat to his father's and staid a fortnight; during which time he worked for a Mr. Chester, in digging sand, by whom he was paid for so doing, one shilling a day: the pauper once twe daring that fortnight, ate at his master Howes'. the end of the fortnight he went to Howes his master, and red hin; first at Stouchbury, and afterwards at Culworth. Faster then dying, he continued to serve the widow in Cultill the expiration of his time.-The question was,

this fortnight's absence defeated the settlement? -And Arst J. The rule established in these kinds of cases is Where there is a bona fide exception of part of the hat the time of the hiring, that is not an hiring for a year; there be no exception at the time of making the original art, then a permissive absence is considered as a dispenin part of the service by the master; and it does not

is the same way as an exception out of the original Contract which defeats the settlement. And the question, where be one or the other, must depend on the particular

aces of each case. In this case there was a complete for a year at the time. The parties having disagreed on the teras proposed, the pauper went away: but on his return, master said he would give him the five guincas, which agreed to accept, and gave him one shilling earnest. It is rwise stated, that while the master was putting his hand at his pocket, he told the pauper he should go away for a ragat. But the contract was complete before that time, and what passed afterwards can only be considered as a dis

on with the service. For at that time the master had Alere right to his service for a year, and the pauper had

serve him for that time, and the one shilling earnest band the agreement for a year for the five guineas; vie it appears to be giving the servant more than he ori ked for the whole year, for serving him for a shorter : it then the contract were complete before any thing sid relative to the fortnight's absence, this was a diswith the service, and not an exception out of the ori

ginal contract. An exception. is a stipulation on the par of the person for whose benefit it is introduced: but here i was not made on the request of the servant, but on the offe of the master. And it appears that he said it was for the ex press purpose of preventing the pauper's gaining a settle ment. That is not such a reason as the court would give muc countenance to. 2 Term Rep. 376.

But unless the fact of fraud be expressly found by the ses sions, the court cannot intend it. For in the .K. v. Prestor Hil. 4 Geo. 2, the pauper who was settled in Preston, beir hired for a year, served until five or six days before the et of the year, in the parish of B, and would have served out t whole year, but that two or three of the householders of t parish of B gave him two guineas to leave his master and out of the parish before his year was expired. Upon his rece ing the two guineas, he went to his master to receive his wag but his master deducted nine shillings for the remainder of year; the payment of the two guineas was afterwards charg by the overseers in their accounts, and allowed to them ; † it did not appear that the master was privy to the paymen these two guineas until after the pauper was discharged fr his service. It was insisted, that as the sessions had not for the fact of fraud, the court could not, from any suspicious cumstance in the case, infer it, and that therefore the pauperc tinued settled in Preston.-By THE COURT. We certainly € not intend that fraud was practised upon this occasion, fraud, being a matter of fact, must be specially found; there cannot be a doubt but that this was done to avoid settlement of this man in the parish. Upon the express w of the statute, however, it is clear, that he could not ga settlement, for the statute requires a year's service, am is agreed on all sides, that there has not been a year's set in the present case. 2 Bott, Const's ed. 497. Burr Sett. Cas. 69.

So if the servant fall sick, absence on that account will prevent the gaining of a settlement....Thus in the K. v. I Ea. 7 Geo. 1, it was stated that the servant for six days sick, and incapable of any service; and it was therefore jected, that he could not gain a settlement, which is t acquired only by a service for a year; but here he did not s for six days, and so there wants so much of a service for a But by THE COURT. A servant that lies thus under the vi tion of the hand of God, which befalls him not through his default, is, and must be taken to be, all the while in the servi his master; and if this exception was to be allowed, prevent all the settlements in the kingdom. 1 Strange, So in the K. v. Christchurch, Ea. 33 Geo. 2, the pa on the 24th day of August, was hired in Christchurch year, and continued in such service there from that day ti 7th of August following; then she was frightened ante and thereby rendered incapable of doing any serpice

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master being taken very ill, and being disturbed by her fits, her mistress desired a Mr. Lemonier, who lived in the parish of

St. Matthew, Bethnal Green, to receive her into his house, that she might be there under the care of her sister who lived there: but if he should refuse to admit her, she was to be brought back to her said master's house again. Lemonier received her, and she resided in his house about five days, when she was taken into the hospital; the day after she had been received into Lemonier's house, she returned to her master's to fetch away her clothes; and her mistress gave her two shil. lings, which, with what she had before received, made up the full year's wages: no words of discharge passed between the pauper and her mistress; but she looked upon herself as then dis. charged from her said service; but believed that had she re covered her health, her master would have received her again into his service: she continued under the same indisposition till after the year from the said time of hiring was expired, and never again entered into her master's service; and on the 17th of August following, her master hired another servant in her place. By lord Mansfield. This is certainly a fair bond fidc service for a year, without any fraud on either side, either of the master or of the servant. If a master gives his servant leave to go upon any other service, or to be absent for a short time, and pays him his whole wages, this is a fair bond fide serrice. If the servant is taken ill by the visitation of God, it incident to humanity, and is implied in all contracts." Therefore the master is bound to provide for and take care of the servant so taken ill in his service, and cannot deduct wages in proportion to the continuance of the servant's sickness. Being sent to an hospital by a kiud master ought not to hurt the settlement of a servant visited by sickness. And I see no difference between such an accident of sickness happening in the middle or happening at the end of the year; it is equally the act of God, and without any fault of the servant..-The three other judges concurred; and Dennison J. said, That the relation between the master and servant certainly continued: it was not put an end to by this visitation of God. And be observed, that the sending her ont of the master's house to Lemonier's, and afterwards to the hospital, was for the ease of the master, and for his own convenience, and just the same thing as if she had been kept in the master's house, and under his own roof. Burrow's Sett. Cas. 494.

So in the K. v. Maddington, Hil. 11 Geo. 3, the pauper as hired for a year from Michaelmas, and continued in his service till about three weeks before the next Michaelmas ↳ when having been kicked by one of his master's horses, he went home to his friends about five miles distant, without his master's knowledge or asking his leave, to cure his leg; and continued there during the remainder of the year, and never ré turned to his master, except for his wages, some short time after Michaelmas when he was paid the whole, except six

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