1804. The KING against CORRY. his fucceffor. It is an election which the charter only requires to be made by the capital burgesses, who are twelve in number, or the greater part of them, without making any mention whatever of the bailiff with a reference to that election. And though the bailiff when elected be directed to be sworn upon the Monday following before his predeceffor, "if he bould be alive and prefent," yet fo little is the prefence of the bailiff effentially neceffary even on that occafion, that the charter directs that "if the bailiff the predeceffor should be then dead or absent," the new bailiff should be fworn in " before the chief burgeffes of the borough for the time being or the major part of them." The prefence of the bailiff, as fuch, not being, (as it clearly is not) required by the letter of the charter, it remains to be confidered whether it be required either by the common law, or by the ftat. of the 11 G. 1. c. 4. That it is required by the general rule of the com- 11 Geo. 1. mon law, independent of any charter of the particular borough, c.4. was contended on the part of the profecutor on the authority of the Queen against the Bailiffs of Ipswich, 2d Lord Raymond 1237 ; where it is laid down by the Court, "that as in all corporate acts the act of the majority is the act of the whole, fo the [380 ] "bailiffs being the head of the corporation, nothing can be done "without their prefence; and this is fo, though no special pro"vifion be made for it by the charter :" But this must be understood of general corporate acts required to be done by the whole body corporately affembled, and which of course are not well done, if the chief officer, being an integral part of fuch body, be wanting. But this rule does not apply to cafes where acts are required or authorized to be done, as here, by any one integral member or branch of the corporation, acting separately and apart from the reft. Is it then (which is the only remaining question upon this first head of objection) required by the ftat. 11 G. 1. c. 4.? By adverting to the preamble it appears that the mischief meant to be obviated was the mifchief arifing from the not doing acts required by charter or ufag to be done at certain times in order to or for the completing of the election of mayor, bailiffs, or other chief officers. And by the 6th fection of the act it is for that purpofe enacted, " that if any mayor, bailiff, or bailiffs, or other chief officer or officers of any city, borough, "or town corporate shall voluntarily absent himself or themselves from, or knowingly and defignedly prevent or hinder the elec?n "of any other mayor, bailiff, or other chief officer of the fame city, "borough, U 2 1804. The KING against CORRY. "borough, or town corporate, upon the day or within the "time appointed by charter or ancient usage for fuch election," the perfon fo offending is upon conviction, to fuffer fix months' imprisonment, and to be difabled from holding any office belonging to that corporation. The voluntary abfence from the election of a chief officer, which is thus feverely punished by fix months' imprisonment and the corporate incapacity above stated, must, in [381] fair conftruction of the ftatute, be fuch an abfence whereby the mifchief complained of in the preamble, viz. " of preventing the completion of the election of a chief officer," and for the remedy and prevention whereof the act is profeffedly made, máy poffibly be occafioned. It must be abfence, at least, where prefence was antecedently a duty: But that cannot be predicated of the abfence on this occafion, with a reference to any of the duties of the bailiff, as fuch, which are either enjoined by this charter, or to be collected from any principles of the common law. Unless, therefore, this 6th fection can be confidered as of itself creating a fubftantive neceflity in all cases for the prefence of the chief officer of the corporation, as fuch, at the election of his fucceffor, where his prefence was not required before the ftatute (which appears to us a propofition not capable of being maintained); the voluntary abfence charged in this indictment of a chief officer who had no occafion, as fuch, to be prefent, and whofe abfence had no effect whatfoever towards preventing or hindering the election of his fucceffor, is not that voluntary abfence of a chief officer which this act meant to remedy or prevent by the penal provifions of the 6th fection. As the indictment appears to us therefore to be bad upon this first ground of objection, it renders it unneceffary to enter into the validity of the second objection, on the ground of which the judgment is fought to be arrested. Judgment arrested. The KING against The Inhabitants of PUCKLECHURCH. 1804. Saturday, June 16th. Where no tion of Therefore where the contract was for the fervant to ive with his mafter, the latter T WO juftices removed Thomas Pritchard, his wife, and daughter, by name, from the parish of Pucklechurch to the thing is faid in a contract parish of Wefterleigh, both in the county of Gloucester. The of hiring Seffions, on appeal. quafhed the order, fubject to the opinion of about time this Court on the following cafe. The pauper T. Pritchard but a refervabeing fettled in Wefterleigh about ten years ago hired himself to weekly wages, T. King of Pucklechurch for eight weeks ending at Midfummer, it is a weekly at 55. per week: at which time he hired himself ag in to the hiring only, fame mafter, at 45. per week till the Michaelmas following. At. Michaelmas he entered into a new agreement with his mafter to live, the master finding him board and lodging, and paying him 25. 6d. per week: but no time was fixed or talked of by the mafter or fervant for the duration of the contract. When the fummer feafon arrived the pauper faid to his mafter, "I must finding him have more now I believe, maiter:". The mafter faid, "How board and much more?" and his wages were increased. And fo And fo as the lodging, and winter or fummer fucceeded his wages were accordingly reduced or increased. At the time when the alteration of wages took place there was no converfation as to leaving the fervice or diffolving the contract. The alterations of wages took place at the beginning of the week. He entered and left his fervice on the fame day of the week, being Sunday. There was a general fettlement at the time he left the fervice with refpect to wages, and fome difpute; but he could not remember what it was. The pauper was more than once abfent from his mafter's fervice two or three days at a time to fee his friends with his mafter's confent. He ferved in the whole five years and a quarter, and received money on account of wages at different times, fometimes a guinea, and fometimes more; but there was no complete fettlement of wages till he and his master parted. But at the time he was not paid fo much as he thought he was entitled to; but whether on account of abfence or not he did not know. Abbott and Hall, in fupport of the orders of feffions, relied on the last agreement of the fervant to live with his mafter, without any limitation of time; which the law therefore deemed to be a hiring for a year; and which was not varied by the circumftance U 3 paying him [ 383 ] 383 1804. The KING againf The Inhabi tants of PUCKLECHURCH, ftance that the wages were to be paid weekly; as in R. v. Seton and Beer (a), and R. v. Hamprefton (b). And they argued that this was different from the cafes of R. v. Bradninch (c), where the contract of hiring was by the week, and R. v. Clare (d), where it was by the month; and from R. v. Neaton Toney (e), and R. v. Hanbury (ƒ), where the hiring was at so much a week, which was confidered as the fame thing; and in the latter cafe, either party might part at a week's notice. That admitting the intention of the parties as to the generality or duration of the hiring to be ambiguous, the fact of the pauper's having continued in the fervice above a year was a circumftance which 384 might be taken to explain the original intent; as in R. v. Longwhatton (g), where service for above a year as a domestic fervant, there being no evidence of the contract, was deemed sufficient to raise a prefumption of a general hiring. And here the mafter agreed to find board and lodging for the pauper as a domeftic fervant. Then the mere alteration of wages in the middle of the year, the fervice continuing the fame, will not prevent the gaining of a fettlement; as in R. v Alton (b). ·Gibbs and Taunton contrà were ftopped by the Court. Lord ELLENBOROUGH C. J. If nothing be faid as to the term of the fervice but that the fervant fhall have weekly pay, it must prima facie be understood that the parties intended a weekly hiring and fervice. But circumstances may fhew a dif. ferent intent. Then are there fuch circumftances in this cafe, from which we can fairly collect that the parties intended a hiring for a year? In the first inftance the hiring was for a fpecific term of eight weeks; the fecond hiring was alfo 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 cafes of Dedham, of Bradninch, of Newton Tones, and others of the fame clafs; where a hiring at weekly wages has been holden to be a weekly hiring. And if it wanted any additional circumftance the conduct of the parties themselves afterwards fhews that they fo confidered it; for the fervant left his master at the end of the week in the middle of a year. an indefinite hiring were stated on a record, and nothing shewn (a) 2 Conft. 200, If (8) 5 Term Rep. 205. (c) Burr. S. C. 662. (ƒ) 2 Eaf, 423. to to control it, it will be deemed a hiring for a year: but that is in the absence of any circumftance from whence a different intent is to be collected: and here weekly wages being referved, and nothing else added to shew an intention to extend the contract further, it will induce the conclufion in law of a weekly hiring and service intended by the parties. There is a current of authorities to this point. GROSE J. A refervation of weekly wages will make a weekly hiring, if nothing appear to the contrary. And here the circumft inces do not furnish any other inference. In the firft and fecond hirings certain definite times were mentioned, where it was meant to extend the contract beyond a weekly hiring: but at the third hiring there was nothing faid, from whence the intended duration of it was to be collected, but the reservation of weekly wages. It appears also that the wages varied from time to time 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 the fame as they were at first settled, The third hiring, therefore, was not a general hiring, but a hiring from week to week. 1804. The KING against The Inhabi tants of PUCKLE CHURCH. LAWRENCE J. I thought the law had been perfectly fettled fince the case of Newton Toney; for the rule was there laid down, that if there were any thing in the contract of hiring to fhew that it was intended to be for a year, the refervation of weekly wages would not control it: but if the payment of weekly wages were the only circumftance from which the duration of the contract was to be collected, it must be taken to be only a weekly hiring. Then what is this but a weekly hiring by that rule? The point having been before precisely determined, this [386] cafe ought not to have been brought up. LE BLANC J. Neither the first nor the fecond hiring can be pretended to give a fettlement. Then as to the third, it is clearly a hiring for weekly wages, and there is nothing to denote that it was for a year except that no time was mentioned, from whence it is contended that in contemplation of law it must be taken to be a yearly hiring. But it has been holden that a reservation of weekly wages, without more, is only a weekly hiring. But if there were any doubt of that, there is another circumftance confirmatory of that conftruction; for the fervant in the middle of the year required an advance of wages, which the U 4 |