« PreviousContinue »
forth? time of the scrTant's absence might be an act of bene, t imae in the .r.aster.—Orders quashed. Burrow's Sett. Cas.
J* h tha A'- v. Ron, Tr. 11 Geo. 3, the pauper hired himself foravearto one Miles, and served him in Lwij.irrjn, only tut days. A difference arising between them about the business ihc pa'iper was employed in, Mites (the master) bid the fnaper go about his business. On which he immediately ran way, and quitted his service; and hired hi.nsclf to one Whitby fj: a year, and served him for six months in It'hitchurch. Mies, the former master, thea insisted on Whitby's not keepin; dispauper in his service : and IVhit by paid the pauper his »»^sto that time: and 'the pauper quitted that service, and • rat on: or two voyages up the river Wye, as a labourer to '3 ba.-ce-master, for a fortnight,' then at llliitby's requrst, and <nt'i Miles iii< former master's consent, returned into Whitby'* , without coining to any new agreement ov any mention He continued in Whitby's service in Whitchurch yrten mMtis, being a mouth over the end of the year for wjiicji lie wis hired, in order to make out his lost time . and. tornrrttirrti his wages. It was contended, that ' the fort'stilt's absence being iu the middle of the year,' was purged' br Ae Master's receiving hira again.—But by lord Mansfield, lfcre ua>i absolute dissolution of the contract, by both mas. triad itrvaut, at tbe end of six months: whereas the statin* Mpuesa continuance in tlic same service for a whole year. Item sen ice cannot be connected with the old hiring.— Mmi. Iu this case, the master and the servant had nothing UN to do witb each other, after the latter had quitted
: foriner. It is uot like the cases of small absences which have been overlooked and not the master: those cases proceed upon the prini contract's being continued, and not dissolved; i in the present case it was totally dissolved. Burrout'is Cm. GS8.
Sow the K. v. Gresham, Hit. 20 Geo. 3, the pauper, being WtMin Graham, was hired for a year in Jiest'in Regit : he totem] upon las service, and continued therein for about a gaiter of a year ; when, upon some dispute between him and bi Baiter, 'his master insisted upon turniug him away, and 'iWdown fifteen shillings, which the pauper took up '>ad went away.' Tbe pauper continued absent for six days, *»>«f which time he looked upon himself as a free man: the PMp* then returned, at the request of his master, and cuuti. Msiin the service to the end of the year, when his master f**n the remainder of bis wages.—But by lord Mamjield, LJ' The absence of a servant from his master's service, is irocal act, and therefore may be explained by other ciri; but1 if it appears that the coutract has been ones cannot be sot up by a new agresmeu*.' In. this Case the contract was absolutely dissolved: the master insist upon turning away the scrvant,and paid him down all hiswaj that were due; the consent on the other side is by taking them ney np ; then how did his come bark again? It was upon t request of the roaster: there is nothing by which the abvn fan be explained. Tha meaning of " purging an absence" where the act itself i> doubtful. 1 'Verm Rep. 101. her the whole year's wages then, rather than to take her bad again; this was purchasing the dissolution of th« contrac on his part: which she assented to by taking the money, ao tendering herself to others as a servant. 4 East's Rep. 351. Smith's Rep. 55.
So in the K. v. Grantham, Tr. 30 Geo. 3, the pauper M hired to "serve for a year in Allington, and entered upon service, and continued therein about six weeks, when, with master's permission, he went to assist his father, who was and with whom he staid thirteen weeks, he then returned, consequence of a warrant having been obtained against him the instance of his master, into his service, under the oru?i contract, and coutinued therein until Sunday evening, • (hi 1 days before the expiration «»f the year; when his master ca
* home in liquor, abused him, threw him down, and aftcrwal 1 turned him out of doors.' The pauper slept at his fallw that night in Allin*ion, and 'the next morning his TMi
* would have had Uim return to his service, and stay the
* mainder of (he year; hut the pauper refused going into 'master's service a?uin, and threatened that unless he paid I
* the whole of his wages, he would complain of the ill ns
* lie had received to a magistrate.' The master then agreed pay him his full year's wages, deducting for the thirteen we he was/with his father in his illness, which the pauper to and then left his master's service, ' contrary to the express 'quest of his master.'— By lord. Kenton Ch. J. The circ< stance stated in the case, that this transaction happened d three days before the end of the year, might havo led us at ( to suppose that there was some fraud intended on the par the master ; but none is stated. It has been said, and nj ly so, that an actual service is not necessary, Cor that a i stnictive service is suflicient; but the question here Whether we can say that there was a constructive service the whole year i aud whether (he relation of master and vant subsisted during that time? If the absence be for a sonablc cause, it is immaterial whether that absence be at beginuing, the middle, or the end of the year. And it has 1 urged, that this was at> absence for a reasonable cause, on rount of the ill treatment of the master. Cut here there W* animus revfrtendi, which distinguishes the'present fro rlass of cases alluded to. When the servant was ill-used, thu he could not have left the service without his masters Com or without applying to a magistrate to be discharged on account, yet the master did consent to the servant's lea him, and both jtarties agreed to put an end to the tract. If the master had aitcrwards complained of the pan not serving him for those three days, the latter might answered by sayiuj that the coutract was dissolved. A
So in the K. y.Rushall, Tr. Ter. 26 Geo. 3,the mother of (1 pauper being desired to look out for a place for her daughtci who was settled at Witton, applied to Mrs. Perk, of Rushal some time before Old Michaelmas-day,who informed her that si would give her daughter the same wages as her other servant and would wait till she came, but the mother made no absi lute agreement for her daughter: the daughter arrived i Rushull about a week after Old Michaelmas-day, when upt Mr. Perk's application to her to know if she liked to con into his service, she went there: and then it was, for the fir [lime agreed between Mrs. Perk and her, that the wages shou be ten guineas for the year, and a guinea for tea, wiih Hbert which was not before mentioned, of parting at a month's tsag or a month's warning: this was on' the 18th of October ai she then went to work, and continued in Mrs. Perk'* servit until Old Michaelmas day following, * about five weeks t
* fore that time, the gave her mistress notice that she shot
* quit her service at the nest Old Michaelmas-day:' on that d «he was paid her whole year's wages; but was told by. I mistress that she wanted a week of serving out her year: < pauper said she zeas willing to stay another week; but I mistrtss replied that it did not signify, «i she had'got anotl servant in her place wllo was then in the house : she then left I house, and never returned into the service afterwards—of thrse facts The Session's were of opinion that the pauper v settlrd at Rushall. But by lord Ellenborough, Gh. J. th can be no doubt upon this statement that both parties agreed put an end to the contract bufore the end of the year: Servant gave above a month's warning to quit At Old Michc mas, which she had a right to do, and the mistress acccp the warning, and both parties acted upon it: and this it i
'pears was in fact, before the end of the year, whatever the s yant might have supposed, when she gave the warning: now rule, vi liich the rourt lias laid down as the test, whether the i curastances attending the departure of a servant before the of the year, amount to a dissolution of the contract, or only a dispensation of the service, is whether the master has the pa afteru-ards uf compelling the continuance if the service ? if he It twt, then- is an end of the contract; if he hate but chased to peme nitli it, it is a dispensation: if after this, any person harboured the servant, when the mistress desired her serv* conld sht have maintained an actioH for it? Certainly D and that is a fair test, that the relation of master and sen had ceased to exist.—Grose, J. the hiring in this case did commence (ill the 18th of October, and consequently the J would not expire till the 18th cf October following ; the I tat quitted a week before the end of the year, according to tk notice: it is therefore clear, that there wis not a year's ser. via in Ruthali. and consequently no settlement gained by the paper there. Lawrence J. and Le Blanc, J. were clearly of opinion also, that there was no settlement. 7 East's Rep. 471.
So in Me A", f. Leigh, Tr. Ter. 46 Geo. 2, the pauper had been removed with his wife and family from Leigh to Clifton J!-**;., and the sessions upon appeal quashed the order, ubjecttolhe'optnion of the court on the following case: " The pnper bang settled in Clifton upon Teame, hired himself on tie SUt of March as a servant In husbandry to a person of the pttskot Lxkleij: fixe days before the end of the year, viz. on .'/«r. 15, he absented himself by leave, one day from his master's »rract,to look out for another place, and on his return at 3 in tkmamnf nf the 26M, tie master oi a trivial pretence ill. founded, mi lie should not stay any longer in his service, and offtredhim »trifle less than his whole wages; which the ser. »»t refssai. but was then ready to have accepted his whole **g£,tioggh he would rather have stayed out his year; and ■Mhtdv applied to a magistrate to oblige his master cither rapaj inn the whole or receive him int > his service for the rc« ffiuadtT of the year, and on the next day on the i.'7th the magis'ntczrrkilii directed half a crown, to be deducted from the year's Bfo, and retained by the muster: on the same ^7th, the pauper &td kimstlf to another master at Uroadu;ayf and on that day WKtdsponsuch service; about a week after the pauper w»nt to kaftrovr master for his wages who paid him the whole. B» The Ctttyt cannot be said that there was a constant refusal of the w*tto pot an end to the contract, when he actually entered ■to author service, before the time when his first contract ""sUine expired: that is an insuperable difficulty: that he W tot receive his wages before the year was out cannot vary icfasejfor he would have received them at the time, if offered: of King's I'yon is almost in terms the same as the >, the magistrate in both cases was ma le a sort of arbi. I between the parties, and both parties acquiesced input. 1 to the contract of master and servant. 7 East't
'. K. T. St. Peter of Mancroft in tiorsich, Wl. ) Geo. 3, where, before the end of the year, the mistress le servant whether she chose to go away ou a certain (within the year), assigning as a reason, that she had hired _ jjffcrvant, who wished to come to her then, and the ser. Tiatsaid it was immaterial to her, and agreed to go then, "Wdhhe did ; the cou Rt thought that was evidence sufficient "Wan agreement to dissolve the contract beforu the end of "•jar. 8 Term Rep. 477.
^if a servant hired for a year leaves bis master's service »f« days before the end of the year in consequence of ill u est, 'altba KUlei for his wages, taking only so much as is then.