aid, I put an end to the contract as far as lies in my power; the other said, I also agree to put an end to it as far as respects me; therefore both parties whose consent, was necessary, did consent to dissolve the contract before the expiration of the year-Grose, J. The question before us is not whether or not the master alone could have put an end to the contract on account of the servant's illness, but whether there was sufficient evidence of a dissolution of the contract by the consent of both parties. It is a mere question of fact, which I think the jusfices should have finally determined; but having sent the case here for our opinion, I have no objection to give mine upon it. It must be remembered that at the time when the servant sent his mother to his master for his money, his wages were not de; no money was due to him till the year expired, or until there was an end of the contract; this message, therefore, was an offer on the part of the servant, to put an end to the contract. Then the master paid the whole year's wages deductIng one shilling for the rest of the year. The servant received this, together with his clothes, and said that he was satisfied by that be signified his consent to put an end to the contract. Laurence, J. Nothing could be due from the master to the servant, until the completion of the year, or the end of the ervice. The servant applied for his money at a time when be was not entitled to it, unless the master would consent to In answer to this application, the master at all that he thought was due: he deducted is. for the remainder of the year, and the servant said he was satisfied. Thas both parties did consent to dissolve the contract before the end of the year. Order of sessions confirmed. 6 Term Rep. 461.

solve the contract.

;

Bet the wilful absence of the servant, whether in the begin. ang in the middle, or at the end of the year, may be cured by the master's receiving him again into the service before the yar expires, provided the contract be not dissolved. Thus in the K. v. Islip, Ea. 7 Geo. 1, the pauper was hired for a Fear, and after he had entered upon his service, went, without leave of his master, to see his mother, and staid away four tan It was objected, that his going to see his mother without lave was a desertion of the service, and the time he staid away takes so much off from a complete service for a year.-BUT Cover were all of opinion that it did not prevent the ment It was never the intent of the statute, that if a at happened to stay out a night or two, it should avoid Catlement; but here the master taking him again has yed with his non-attendence,' so there is nothing in that action. 1 Strange, 423.

the K. v. Eaton, Tr. 8 & 9 Geo. 2, the pauper was for a year in Eaton; and about the middle of the term, ted himself from his master's service, without his consent * for about three weeks together; and then, upon the demand

' of his said master, he returned, and served out the remaind ' of the year.' BY THE COURT. The absence of the serva for the three weeks was purged by the master's receiving hi again; for it ought to be considered in this case as a dispens tion; and in strictness of law, he still continued in the servi of the master, notwithstanding such absence. And besides, we were to be over-nice in services upon this statute, it would attended with very great inconveniences: for a serva would not be able to go for two or three days to see his frien without running the risque of forfeiting his settlement; whi would be too hard. Burrow's Sett. Cas. 47.

So in the K. v. Hanbury, Tr. 26 & 27 Geo. 2, the pa was hired for a year, from Michaelmas to Michaelmas : he ca three days after the former Michaelmas, and staid one day a the latter; and was absent at different times, near a fo night for which absence 6s. 6d. was abated in his wag This service was in Tardebig.-BY THE COURT. He gaine settlement by this service; for service has not been ta strictly, though hiring has. The three days absence of servant at the beginning of his service was purged by the t ter's receiving him. Burrow's Sett. Cas. 322.

So in the K. v. East Shefford, Tr. 32 Geo. 3, the 1 per was hired for a year in Welford, and continued in his vice there eight weeks, when he ran away and was absent 13 weeks, during which time he worked with and rece wages from another person. His master then apprehended by a warrant; but in his way to a justice asked him whe he would come back to his place, or go to prison; and i would come back and go on in his place as he ought to he might. The pauper said he would come back and master asked him then what he should be willing to abats the time he had been absent ? The pauper said, he tho one shilling a-week would not hurt him, which was ag to; and the pauper returned into his service, and continue the end of the year, when he received all his wages, ex the 13s. which had been agreed to be deducted.-By Kenyon, Ch. J. If the whole contract were dissolved the servant absented himself, and a new one entered on his return, the pauper could not gain a, settlemen serving under it. The question is therefore, Whether the vice after the pauper's return were performed under the or a new contract? Now it has been decided, that absen the beginning, the middle or the end of the year, may b pensed with, either with the consent of the master or f excusable cause. In the K. v. Hanbury, it was held, tha absence for a fortnight did not defeat the settlement, thoug wages were deducted for that time. Now it is impossio distinguish this case from that, in principle. It has been however, that the absence in that case was for a shorter p than in the present; but I wish that those who used su argument would have drawn the line, and given us the n

ultra. Probably, if the first case after the statute had arisen upon an absence of 13 weeks, the Court would have started at the question: but the Court have gone on step by step, and having held that service for a fortnight may be dispensed with, I think we are bound by the principle of those cases to say, that this pauper gained a settlement in Welford by hiring and service: for on his return he was received again into his master's service, where he continued under the old contract. There is no pretence to say that he entered into a new contract, and the master's object in apprehending him by a warrant was to compel him to complete the service under the old contract. -Buller J. and Grose J. of the same opinion. 4 Term Rep.

804.

So in the R. v. Corsham, Ea. Ter. 42 Geo. 3, the pauper's husband being settled at Colerne was afterwards hired to a per. son at Corsham, at four guineas per ann. with whom he continued to serve till within a fortnight or three weeks of the expiration of the year, when upon a dispute between him and his master, he in consequence of the master's kicking him, would not stay, but went to his father's house in Kingston St. Michael; in the course of the following week, and before the end of the year, he returned with his father to his master's house, and received the whole of his money, and half a crown over to himself; his master asked him to stay, but he refused, and went back to his father's house. By THE COURT, the cases of the K. v. Grantham, and the K. v. Upwell have decided the present question; in both of them there was a payment by the master of the whole year's wages, and a departure from the service before the end of the year, against the will of the master; and in both, the court held that no settlement was gained: there is nothing material to distinguish this case from those: and therefore it is better to abide by them, whether there were a dissolution of the contract or a dispensation of the service is indeed a question of fact, but of fact mixed with law; and the sessions having stated all the circumstances have sent us the case, that we may draw the proper legal conclusion. 2 East's Rep. 303.

So if the master permit the absence, or dispense, with the service, it will not prevent a settlement. Thus in the K. v. Goodnestone, Tr. 19 Geo. 2, the pauper was hired for a year, and lived with and served his masterin Northbourne till within three weeks of the end of the year; when he asked his master to give him leave to go to the herring-fishery; his master consented that he should go, if he could get a man to do his work: the pauper accordingly procured a man to do his work, and paid him for so doing; then received part of his year's wages, and went to sea, and returned at the end of the herring fishery; which was about three weeks after the end of his year: he was then paid by his master the remainder of his year's wages.-BY THE COURT. It has been heid, that absence with the master's

consent will not vitiate or dissolve the contract *. Now i the present case, leave was given by the master, three week before Michaelmas, to be absent during the herring-fishery and in the mean time the pauper provided one to do his b siness as the master had the benefit of the contract during th whole year, so ought the servant to have it also. It was ther fore adjudged that the pauper had gained a settlement in Nort bourne. Burrow's Sett. Cas. 251.

So in the K. v. Nether Heyford, Ea. 32 Geo. 2, the paup was hired for a year in Farthing stone, and continued in service until five weeks before the end of the year, when, with mistress's leave he parted with her, and went to work with a fa mer at Kislingbury, and staid with him the said five week after the end of the year, the pauper went to his mistress his year's wages; the whole whereof she laid down to hi and he thereout voluntarily deducted ten shillings for his f week's absence, being the same sum he had earned and rece ed for his five weeks at Kislingbury: the original contr was not dissolved, nor any new one made with his mistress s as aforesaid and if his mistress had, during the five wee required him to return to her, he should have so done.—Byl Mansfield (who delivered the resolution of the Court). I question turns singly upon this; whether his absence for weeks was a dissolution of the contract? If he had his t tress's leave, it was not; if he had not, it wa. And we all of opinion, that it was only an absence with leave. For appears that both parties considered the contract between th as subsisting and not dissolved. He paid her the whole t he had earned in the five weeks that he was absent; consi ing himself as her servant during that time: for otherwise deduction would not have been a deduction of the parti jar sum earned by him, but a deduction in proportion his whole year's wages to the time of his absence. he looked upon himself as liable to be called back wi the five weeks. Therefore it was only a leave to be sent for the whole time, or for part of the time, as should call him back sooner or later. And as she did not him back sooner, it was a leave for the whole five weeks. U the whole circumstances, we are therefore all of opinion, the contract was not dissolved, and that the pauper gaine settlement at Farthingstone. Burrow's Sett, Cas. 479.

So in the K. v. Bray, Tr. 11 Geo. 3, the pauper was h for a year, and continued in his service till the day before end of that year, when he desired leave of his master to go his relations, before he went to another service; his ma deducted one shilling from his wages for that day, and him the residue: he then went away, and returned no into his master's service: on his going away, his master told that if he quitted the service before the day, there might 1

* See the K. v. Beccles, in p. 159. supra.

dispute about his settlement,and desired him to come back.-THE COURT had no doubt but this was a dispensation of the last day's service; the pauper had his master's leave, he allowed a shil ling for it, which was more than one day's wages. Burrow's

Sett. Cas. 682.

So in the K. v. Potter Heigham, Tr. 11 Geo. 3, a servant hired for a year, continued till the day before the end of his year, when he desired his master to discharge him, telling him, as he had let himself for the next year to a person in a distant place, and wished to pass that day with his friends; He requested to have that time to himself, to spend with them; the master consented, he was accordingly discharged; and received the whole of his wages save sixpence, which he allowed to his master for that day.-THE COURT held it not to be a dissolution of the contract, but an absence by leave of the master. Burrow's

Sett. Cas. 690.

So in the K. v. Richmond, Ea. 13 Geo. 3, the pauper was hired on October the 30th for a year, and on the 4th of September following married a fellow-servant. The wife had given a month's warning in August preceding, to quit the service; and was to quit in September, in consequence of such warning; but was desired by her master to stay till the 17th of October, which she did; and then the master said to the pauper, that he supposed, as his wife was going away, he would like to do so too. The pauper replied he would like it better, if it was agreeable to his master. His master said, he had no objection, as he had another footman coming; and would pay him his whole year's wages, which he accordingly did on the 17th in full to the 30th. On which said 17th of October, both the husband and wife left the service-- By lord Mansfield, Ch. J. There is no necessity of an actual service upon every day of the year. The master can always dispense with it: he can give leave of absence. Nay, if the servant is absent without leave, in the middle part of his year, such absence may be purged, as it has been termed, by the master receiving him again: that is, the subsequent consent of the master ratifies the act done. I am clearly of opinion, that the servant has in the present case sufficiently served his whole year. The master voluntarily gave him leave of absence for the last 13 days; and of his own accord paid him the whole year's wages.-The other judges concurred, and Ashhurst J. particu larly repeated, that the master's offering and paying the whole year's wages, in the manner stated upon the order was a proof of his consent. Burrow's Sett. Cas. 740.

So in the K. v. Bartholomew, Cornhill, Ea. 18 Geo. 3, the pauper was hired for a year on the 11th of June. In the month of April following, her master went to Manchester and purchased a manufacture there, and upon his return in the same month told all his servants that he was going to reside at Manchester, and that they might look out for other services if they chose, or stay with him till he went: the pauper did not look out for any