Rer v. Mitcham, 12 East, 351. Removal from Mitcham to Burghfield. Order quashed. Case: -J. Pendry was hired by Graves, the keeper of a toll-gate (a) in Egham, at 3s. a-week for as long time as his master and himself could agree, to assist in collecting the tolls: he served for more than a year, assisting Graves in collecting the tolls, and occasionally took care of a horse and some hounds. The hounds were kept in premises belonging to the toll-house, and Pendry during all that time resided in the toll-house, Graves did not hire him as he had before hired a brother of Pendry, with whom he expressly contracted as for a yearly servant. Graves paid Pendry as he wanted money pounds at a time. Rex v. St. Ebbs, Burr. S. C. 289, was quoted, and Lord Ellenborough said, "That was an indefinite hiring at so much a year, determinable at the end of the first quarter. This case is nothing more than a hiring at so much a-week, which, where nothing else appears to the contrary, is a weekly hiring within the rule laid down in Rex v. Newton Toney; and it cannot alter the case by adding that which must necessarily have been understood, that the hiring was to continue as long as the master and servant agreed, that is, from week to week. ten years old, went to service It is not a general hiring when the master and servant may separate at pleasure. Rev. Christ's Parish, York, 3 B. &. C. 459; 5 D. & R. 314; 2 D. & Where a panper, R. Mag. Ca. 442. The pauper, at ten years of age, went to F. P. for meat and clothes as long as he had a mind to stop. P. then lived at Craike, was a wood-carrier, and had two farms. The pauper was to do what he could, and what he was bid. He staid rather more than two years in P.'s service in stop, to do what Craike, and was supplied with meat and clothes. The pauper's father did not hire his son to P. and believed the bargain was only for meat and clothes. what he was bid," The sessions confirmed the order. Abbott, C. J. "It must de admitted that and he remained a general hiring is a hiring for a year, unless something appears to rebut that that this was not a presumption. Here no such presumption can arise, because the pauper yearly hiring, and went for meat and clothes, as long as he had a mind to stop,' and conse- was not acquired quently might have quitted the service any hour he chose; this completely by a service under negatives the idea of a hiring for a year.' Bayley, J. "In Rex v. Trowbridge, which was decided in 1816, the court held that a hiring for as long time as the pauper pleased' was a hiring at will, and rebutted the presumption of a hiring for a year." But the reservation of a power to dismiss without notice does not prevent the hiring from being general. Rer v. Sandhurst, 7 B. & C. 557; ì Mun. & R. 95. two years: Held, that a settlement it. mine when he a year, and con Rer v. Great Boden, 7 B. & C. 249; 1 M. & R. Mag. Ca. 42. The pau- A hiring, which per, J. Harding, came to Mr. Hamshaw, an inn-keeper, residing in Great either master or Bowden, and asked for a place. Hamshaw had no objection, and put him servant may deter on as ostler, but said that he did not mean him to have a settlement, as the pleases, is not a parish was very particular. No earnest or wages were given, but the pauper general hiring for was to have what he got as ostler. He had his lodging and his board in his fers no settlement. master's house. The pauper could have left at any time he pleased, or the master might have turned him away at any time. The pauper lived with Hamshaw as ostler, under the above terms, about a year and a half. Buyley, J. "I am of opinion that it was part of the contract between the parties in this case that each should be at liberty to terminate the connection whenever he thought proper. The sessions have stated that fact to us, and have stated it, in my opinion, not as a finding of their own merely, but as the law existing in the case, which could only arise out of the contract. I do not consider that under a general hiring the parties are at liberty to separate when they please; on the contrary, I think the one is bound to serve, and the other bound to employ, for a year; and that if that is not the understanding, the hiring is not general, but is a hiring for a less period than a year. A general hiring is, in contemplation of law, a hiring for a year; but this is not a general (a) Since the 3 Geo. IV. c. 126, 5. 51, and 4 Geo. IV. c. 95, s. 31, hiring by a toll-gate keeper, or service under a keeper of a weighing machine, 1. Of the Contract of Hiring. A servant in hus bandry, hired at the weekly wages of four shillings, board, washing, and lodging, except in the harvest month, when his wages were to be increased to ten shillings and sixpence per week, does not gain a settlement, that being only a weekly hiring. Weekly wages, and two guineas for the harvest. hiring. This was a hiring for as long as the pauper pleased,' for the sessions inform us that it was part of the contract that the pauper might leave whenever he pleased, and that the master might discharge him whenever he pleased. That being the case, there was no hiring, either expressly or by implication, for a year, but there was a hiring for a less period than a year, and service under such a hiring confers no settlement. It seems to me, therefore, clearly, that the sessions have come to a wrong conclusion." Holroyd and Littledule, Js., concurred. Order of sessions quashed. Rex. v. Dodderhill, 3 M. & Sel. 243. J. Hill, the pauper, hired himself as a servant in husbandry to Broad, who occupied a farm in St. Peter's, to serve him for the weekly wages of four shillings, board, washing, and lodging, except in the harvest month, when his wages were to be increased to ten shillings and sixpence per week, and then again to be reduced to four shillings. Nothing was said as to the time the pauper was to continue. He served Broad eighteen months in St. Peter's, residing there, and receiving the four shillings per week, except during the harvest month, when his wages were raised to ten shillings and sixpence, and afterwards were again reduced to four shillings. Lord Ellenborough, C. J. said, “I take the rule of law to be, that if no particular time is expressed for the continuance of the service, or is reasonably to be implied, a hiring for a year is to be intended. But it has also been laid down, that a reservation of weekly wages imports a hiring by the week, unless the inference which arises from the reservation of weekly wages be repelled by other circumstances. Where there is a liberty to part at a month's notice, that imports that as there must be a month to determine the contract, the reservation of weekly wages is not to limit the duration of the contract, and therefore it becomes a hiring unlimited in duration, which the law terms a general hiring, or a hiring for a year. What is the case here? The hiring is at weekly wages, except in the harvest month, when the servant is to be paid according to a higher rate of weekly wages during that month; he is to be paid ten shillings and sixpence per week, the parties contemplating the possibility of the service continuing during the harvest month. If the exception had been for the harvest month,' instead of in the harvest month,' it might have afforded a more plausible argument that the contract was meant to endure at least for the period of a month; or if instead of ten shillings and sixpence a-week, it had been stipulated that the servant should receive two guineas for the month, that would have imported a consolidated month, (a) and might have repelled, on the same principle as the month's notice, the inference arising from the reservation of weekly wages; but that is not the language of this contract. All that is stated here is the payment of weekly wages, which, according to the cases, controls the duration of the contract." Le Blanc, J., concurred. Bayley, J. "There is nothing in this case to show that the master bound himself to keep the man, or the man to serve the master for a year. The parties were only providing, that in case the weekly contract should continue up to the harvest month, the weekly wages should be increased. There was no obligation either upon the master or the servant to continue it beyond the week. Rex v. Lambeth, 4 M. & Sel. 315. The pauper's husband had been hired by one W. at eight shillings per week, and two guineas for the harvest, to do any thing the gardener should set him about; and under this hiring he served four years in Chadlesworth. The sessions thought he thereby gained a settlement in Chadlesworth, and now it was contended, in support of their order, that here was an agreement for a gross sum to be paid for the harvest, and not merely, as in Rex v. Dodderhill, for an increase in the weekly wages in the harvest month. And for the harvest, imports for a consolidated period, at least as long as a month, for which period these wages are reserved, which is inconsistent with the notion of a weekly hiring; and therefore this case falls within the principle of Rer v. Hampreston, 5 T. R. 205, post, 369. But per Lord Ellenborough, C. J. "It does not distinctly appear (a) See, however, Rex v. Lambeth, 4 M. & Sel. 315, next case. whether the two guineas were to be paid de incremento, or were to cover the whole harvest. All that appears is, that the hiring being by the week, the parties contemplated that possibly it might last through the harvest." Order of sessions quashed. 1. Of the Contract of Hiring. service, but that hiring. Rex v. Pucklechurch, 5 East, 382. The pauper hired himself for eight Where nothing weeks, at 5s. per week. At Midsummer he agreed for 4s. a-week till Mi- said as to term of chaelmas: at Michaelmas he agreed to live with his master for board and the servant shall lodging, and 2s. 6d. per week. No time was mentioned then. In the have weekly pay, summer the pauper asked for more wages, and they were increased, and it is only a weekly again reduced in winter. When the wages were increased nothing was said as to leaving the service, or dissolving the contract. The alterations of wages took place in the beginning of a week. He entered and left the service the same day of the week. He served in the whole five years and a quarter. There was no complete settlement of wages till they parted. Lord Ellenborough, C. J. "If nothing be said as to the term of the service, but that the servant shall have weekly pay, it must prima facie be understood that the parties intended a weekly hiring and service. But circumstances may show a different intent. Here, in the first instance, the hiring was for a specific term of eight weeks; the second hiring was also for a definite time short of a year. No time was mentioned at the third hiring, but it was a hiring at weekly wages. Then it falls within the cases of Dedham, Bradnich, and Newton Toney, where a hiring at weekly wages has been holden to be a weekly hiring, and if it wanted any additional circumstance, the conduct of the parties themselves shows that they so considered it, for the servant left his master at the end of a week in the middle of the year. (a) If an indefinite hiring be stated on a record, and nothing shown to control it, it will be deemed a hiring for a year: but that is in the absence of any circumstance from whence a different interest is to be collected. Afterwards Lord Ellenborough said, “ I hope it will be understood, that where nothing is said in the contract about time, but a reservation of weekly wages, it is only a weekly hiring." Grose, J." It appears that the wages varied at the different seasons of the year: that cannot furnish the inference of an implied hiring for a year, for then the wages must have continued as they were first settled." Le Blanc, J. "There is another circumstance confirmatory of the construction that it is a hiring for a year, for the servant in the middle of the year required an advance of wages, to which the master acceded, a circumstance scarcely probable if they had contracted for a year." Rer v. Warminster, 6 B. & C. 77; 9 D. & R. 70; 4 D. & R. M. C. 197. The pauper, being of age, was hired to Mr. Thring, a solicitor at Warminster, as gardener. At the time of the hiring, Mr. T. asked the pauper what he should give him a-week. The pauper asked 20l. a-year wages, which Mr. T. refused to give, but said he would give 6s. a-week for the winter, and 9s. aweek for the summer, which the pauper agreed to take. He was to be in Mr. T.'s house. Under this hiring the pauper served more than a year, living in the house. He and his master then came to a fresh agreement for weekly wages, without board; and about a week afterwards Mr. T., upon detecting some irregularities among his servants, discharged the pauper without notice. During the service under the first hiring, the pauper, on one occasion, gave his master a month's notice of his intention to quit; but the notice was not acted upon. The wages were accounted for weekly; but were paid occasionally, as they were wanted, and applied for by the pauper. Rez v. Dedham, Rer v. Pucklechurch, Rer v. Dodderhill, and Rex v. Lambeth, were cited. Abbott, C. J. "The cases referred to are all directly in point; but independently of any authorities, it is perfectly clear, from the facts of this case, that the master never intended to hire the pauper for a year. He first asks the pauper what he shall give him a-week-the pauper (a) In Rex v. Road, 1 B. & Ald. 362, Bayley, J., observed," from quitting in the middle of the year, without notice, it may fairly be inferred there was no Where the servant asked yearly wages, and the master offered weekly wages, which were ac cepted, this was not a yearly hiring. 1. Of the Contract of Hiring. A pauper agreed with an innkeeper to serve him as ostler, at two shillings a week in the sum. mer, and one shilling and sixpence a week in the winter: Held, that this was a weekly hiring only. A hiring by the month, at a month's wages, or ing, will not be a a month's warn yearly hiring. A hiring to work at three shillings and sixpence per week, and condition for a week's notice, does not gain a settlement. asks 201. a-year: the master refuses to give that, but offered a certain weekly sum, which the pauper accepted. That clearly negatives the supposition that a yearly hiring was intended." Rex v. Rolvenden, 1 M. & R. 689. In June, 1820, the pauper agreed with W. Masters, an innkeeper, at Rolvenden, to serve him as an ostler. The pauper and his master bargained by the week, at 2s. per week in the summer, and 1s. 6d. per week in the winter. The pauper entered into the service in June. He received 2s. per week till the following Michaelmas: and from Michaelinas to Lady-day, 1821, 1s. 6d. per week; and from Lady-day to Michaelmas, 2s. per week. On the evening of the 23d of February, 1823, the pauper left his master's service, in consequence of a disagreement that took place between his master and him on the morning of that day. Bayley, J. “This case cannot be distinguished from Rer v. Warminster (ante, 367). The hiring here is for an indefinite period, at weekly wages, which is a weekly hiring. The mere arrangement that the wages shall be at one rate in the summer, and at another in the winter, does not show that the parties contemplated a service to endure through the summer and the winter, and, therefore, that they intended a hiring for a year; but shows only that they intended that if the servant, being hired at weekly wages, should remain till the summer, he should then have so much per week, and if he should remain till the winter, he should then have so much per week. The true meaning of such an ar rangement is merely this: that the servant's wages, as a weekly servant, are to be regulated by the seasons. Looking at the terms of this contract altogether, they seem to me clearly to constitute only a weekly hiring, no service under which could confer a settlement." The other judges concurring, the order of sessions was quashed. Rex v. Clare, Burr. S. C. 819; 2 Bott, 295. The pauper, a journeyman miller, at Michaelmas, 1768, let himself to E. S. by the month, at the wages of 8s. a-month, and was at liberty to depart at a month's wages, or a month's warning. At the time of hiring, it was agreed that if he continued in her service till harvest-time, he should be at liberty during the harvest month to let himself to any other person for the harvest month. He continued five years in the service of E. S., and during that time constantly let himself to some other person for the harvest, and received the common wages of 8s. from his mistress for the harvest month, and paid her one moiety of the wages earned at such harvest; but generally at the end of every month, and sometimes weekly, received his wages of 8s. a month, or in that proportion. He considered himself as a monthly servant, and at liberty to leave his mistress at the end of any month, on payment of a month's wages, or giving a month's warning. This point was given up by the counsel as indefensible: the hiring being only a hiring by the month. Rex v. Hanbury, 2 East, 423; 1 Nol. P. L. 332. The pauper agreed to work for one Saunders, as a blacksmith, at 3s. 6d. per week, with meat, drink, washing, and lodging at S.'s house: to part on a week's notice by either party. The pauper continued to serve for six years, without any alteration of terms, when S. died. The pauper received his wages every Saturday night or Sunday morning went where he pleased on Sundays, as well as on other days; but was entitled to his board if he stayed at home. On other days, if he wanted a holiday, he asked for it and had it, his master deducting his wages. The sessions thought this a general hiring. It was argued that the mere continuance of the service for six years warranted the inference of a general hiring. Lord Ellenborough said, "Here the particular terms of the agreement are stated, and therefore we cannot presume that the pauper served under a different contract." His lordship_added, "that this case was decided by those of Dedham, Bradnich, and Newton Toney. That in the first Lord Mansfield said, that all the cases required a hiring for a year, but that that was only at so much a week.' In the second he observed that the pauper was under no obligation to serve a year, and unless that be so, there can be no settlement gained; and that Rer v. Hampreston turned upon the circumstance of a month's notice to quit being required. But here the contract was determinable at a week's notice. Though the 6 sessions have drawn a conclusion that this was a general hiring, yet it is clear that they meant only to state it as a conclusion of law from the antecedent facts, the propriety of which they meant to refer to us. But there is no ground for presuming a general hiring, it appearing expressly what the agreement was, in fact, which negatives a hiring for a year." 1. Of the Contract of Hiring. implied yearly The following are instances in which the terms of agreement were, in most Instances of respects, like those in the former cases, but something was added by which appears that a yearly hiring was intended. it hiring. But a hiring at three shillings a week "the year round," each to be at liberty on a fortnight's notice, gains a settlement. (a) a month's notice, Rer v. Birdbroke, 4 T. R. 245. M. Meers was removed from Stoke to Birdbroke. Order confirmed. Case:-The pauper was hired by J. Olley, farmer, at Stoke, at 3s. per week the year round; each was to be at liberty en a fortnight's notice, but the pauper was not to go away at seed time, hay, or harvest. He stayed in that service a year, and received his wages at different times whenever he pleased. Lord Kenyon, C. J. said, "No doubt can be entertained on this case. It does not even rest on a general hiring, for this was an express contract to serve the year round. But it is said that this cannot be considered to be a hiring for a year, because there was a reservation of weekly wages, and because each party was to be at liberty to put an end to the agreement on giving a fortnight's notice; but whether the wages be to be paid by the week or the year, cannot make any alteration in the duration of the service, if the contract were for a year. This, therefore, was a contract for a year, at so much a week, with liberty to quit at any time, except seed, hay, or harvest time, on giving a fortnight's notice: but the power of giving notice makes no difference;' for it has been held that an agreement to leave the service on giving a month's warning, did not defeat the settlement." (Rer v. New Windsor, post, 380.) Buller, J. said, “A hiring for a week, requiring a fortnight's notice, was never heard of." (See next case.) Rer v. Hampreston, 5 T. R. 205. Order of removal from Gillingham to Hiring at so much Hampreston confirmed. Case: The pauper, W. Gray, went to S. Hannam, per week, and a miller, of Gillingham, and agreed to serve him for 3s. 9d. per week; he liberty to part on considered himself obliged to serve his master on Sundays as well as other is a general hiring. days, and accordingly served on Sundays. "They had a liberty of parting on a month's notice on either side." He received Is. as earnest to bind the bargain. There was no mention of time. He continued under this contract about two years and a half, residing in Gillingham, in the house of his master. He then went to Tisbury to be inoculated, where he remained two months. Hannam then sent for him, and he was hired by him at the rate of 4s. per week. He continued to live with Hannam under the last contract for two years and a half, during which time he resided in his master's house in Gillingham. Lord Kenyon, C. J. "It is admitted that since Rer v. New Windsor the circumstance of the parties having it in their power to determine the service on giving notice, will not defeat the settlement where there is a contract for a year, and a year's service under it. (b) Neither could it be disputed that a general hiring is not a hiring for a year. In the cases cited (c) there was something to show that the parties did not intend that it should be a general hiring; one was as long as the master wanted a servant, another as long as the parties liked, where, without any notice, the contract might have been immediately determined. But wherever the relation of master and servant is to continue for an indefinite time, and cannot be put an end to at the election of either party without notice, there the hiring must be understood to be a hiring for a year.' If this were not a general hiring, those who disputed that proposition should have pointed out for what time it was to continue; and indeed it has been contended to be for a month, or a month added to a week, but there is no foundation for either: for if that were so, the (a) A hiring to work at 2s. per day, there being a custom to give a fortnight's notice, is a general hiring. Keele, Faster T. 1832. Rer v. tract by notice, makes it a conditional contract. See the cases under that title. (c) Rex v. Newton Toney; Rex v. Odiham; Rex v. Dedham; Rex v. Bird(b) The power to determine the con- broke; ante, 364, and supra. VOL. IV. 2 B |