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The KING v. The INHABITANTS of GREAT BOWDEN. 7BH.249
asked an inn
keeper for a place, who replied he had no objection, and put him on as ostler, saying, that he
did not mean him to have a
No earnest or
given, but the
pauper was to
Two Justices, by their order, removed John Harding, Mary his wife, and their two children, from the hamlet of Sutton, in the parish of Castor, in the liberty of Peterborough, in the county of Northampton, to the parish of Great Bowden, in the county of Leicester: and the sessions, on appeal, confirmed the order, subject to the opinion of this Court upon the following case :— The pauper, John Harding, came to Mr. Hamshaw, an settlement. innkeeper, residing in the parish of Great Bowden, and asked for a place. Mr. Hamshaw had no objection, and put him on as ostler, but said that he did not mean him to have a settlement, as the parish was very particular. No earnest or wages were given, but the pauper was to have what he got as ostler. He had his lodging and his board in his 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 Mr. Hamshaw as ostler, under the above terms, about a year and a half. The sessions were of opinion that this was a general hiring, followed by service of above a year, and that the master's remarks at the time of hiring could not prevent the pauper from gaining a settlement thereby.
Thesiger, in support of the order of sessions. The sessions were right. This was a general hiring, followed by a year's service, and conferred a settlement. This will be denied by the other side on two grounds; first, because the master at the time of the hiring said that he did not mean the servant to have a settlement; and second, because the case finds that the servant could have left at any time he pleased, and that the master might have turned him. away at any time. There is no weight in either of those objections. First, the mere expression by the master, at the time of the hiring, of an intention to prevent the servant
have what he got as ostler. The pauper lodged and
boarded in the
turned him away at any pauper lived
with the inn-
than a year :—
from obtaining a settlement, will not rebut the presumption of a general hiring, if there are other circumstances in the case from which that presumption may fairly be drawn. It must be admitted, that a bonâ fide hiring for a shorter time than a year, though for the express purpose of preventing the servant from gaining a settlement, is lawful, and will operate accordingly; but that is only where it is clear from the terms of the contract, that a yearly or general hiring was not intended. In Rex v. Mursley (a), where the master at the time of hiring, told the servant that he should not gain a settlement in the parish, and hired him three days after Michaelmas, to serve until the Michaelmas following, the hiring was held not to be within the statute, although the sessions found that such transactions were fraudulent on the master's part; "for," as Buller, J., there observed, "the question of fraud only arises, where in truth there is a hiring for a year, but the parties endeavour to colour it, in order to prevent the pauper's gaining a settlement." Now, the question of fraud arises here, for there is in truth a hiring for a year, that is, there is an indefinite or general hiring, which the law makes a hiring for a year; therefore, this case comes within the exception mentioned by Buller, J., in Rex v. Mursley, and also within the decision in Rex v. Milwich (b), where it was held, that if an agreement be merely colourable, for the purpose of avoiding a settlement, but be in substance a hiring for a year, a settlement will be gained by it. All the facts of this case shew that a hiring for a year was contemplated, and none more strongly than the master's declaration, that he did not mean the pauper to have a settlement; because, if he knew that the hiring was for less than a year, it was perfectly unnecessary to say any thing about a settlement, inasmuch as a settlement under such a hiring could not by possibility be acquired. Second, the statements in the case, that the servant could have left at any time, and that the master could have discharged him at any time, do not affect the (a) 1 T. R. 694. 2 Bott. 246. (b) Burr. S. C. 433. 2 Bott. 210.
settlement, because they are mere findings of matters of fact by the sessions, and formed no part of the contract made between the parties. If they had been parcel of the terms of the contract, the case of Rex v. Christ's, York (a), would have been decisive of this case; because it was there held, that where a pauper went to service" for meat and clothes, as long as he had a mind to stop," and stopped two years, there was no hiring for a year, and no settlement gained. But there it was part of the contract, that the pauper might quit when he pleased; here, that was no part of the contract. The fact is merely found, as a fact, by the sessions, and as such it does not affect the question; because, under every general hiring, it is in the power of either party to terminate the connexion whenever he pleases. Upon this point, Rer v. Stockbridge (b), is an express authority. There, a boy went into an inn yard, and asked the master whether he wanted a boot-catcher and driver, and being answered yes, replied, he should be glad to serve him, and was ordered to take care of the horses, and not to drive them too hard, and no mention was made of meat, drink, washing, and lodging, but he was found in them, and received no wages. That was adjudged a hiring for a year; and the opinion of the master and servant as to their being entitled to separate at pleasure, or bound to continue during the year, was held to make no difference in the case.
Nolan, contrà, was stopped by the Court.
BAYLEY, 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 connexion 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 (a) 5 D. & R. 314. 3 B. & C. (b) Burr. S. C. 759. 2 Bott. 348. 459.
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 hiring. This is like the case of Rex v. Trowbridge, decided in Easter term, 1816, but not reported; where this 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(a). This was a hiring " for as long time 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 in this case, and that their order must be quashed.
HOLROYD, J., and LITTLEDALE, J., concurred.
Order of Sessions quashed.
(a) Cited by Bayley, J., in Rex v. Christs', York, 5 D. & R. 314. 3 B. & C. 459.
The KING v. the INHABITANTS of YNYSCYNHAIARN.
The interest TWO justices, by
of a tenant from year to
S. C. 7. BH. 233. their order, removed Hugh Hughes, Mary his wife, and their five children, from the parish of
year, or of the Aberdaron, to the parish of Ynyscynhaiarn, both in the
of an estate
county of Carnarvon. On appeal, the sessions confirmed
under 10l. a year, passes to her husband on their marriage by operation of law, and he acquires a settlement by 40 days' residence upon the estate.
the order, subject to the opinion of this Court upon the following case :
Hugh Prichard, the pauper's father, was born in the appellant parish of Ynyscynhaiarn. The pauper gained no settlement in his own right. One Hugh Williams, the father of one Elizabeth Hughes, hereinafter-named, resided as tenant of a small farm, called Peny Cwin, in the parish of Aberdaron, and which he held at the rent of 31. 5s. per annum, and died thereon, the 9th of June, 1782. Previous to the said Hugh Williams' death, he made a will, dated the 23rd of May, 1782, bequeathing all his personal estate and effects, subject to the payment of small legacies, to his daughter the said Elizabeth Hughes, before named, and appointed her sole executrix thereof. Elizabeth Hughes continued to reside at Peny Cwin, from the time of her father's death until the time of her marriage, as after mentioned. Hugh Prichard, the pauper's father, never saw Hugh Williams. The first time Hugh Prichard saw the said Elizabeth Hughes was, when on her return after taking her land. 1782, Hugh Prichard married Elizabeth Hughes, and thereupon went to reside with her at Peny Cwin, where they continued many years. Elizabeth, the wife of Hugh Prichard, proved her said father's will on the 23rd of May, 1783. Hugh Williams never paid any taxes in Aberdaron, nor did Elizabeth Hughes while sole, nor the said Hugh Prichard after his marriage (except county bridge rate), until after the year 1795; and Hugh Prichard never paid more rent for Peny Cwin, than 77. 18s.
On the 27th of July,
Russell, Serjeant, in support of the order of sessions. The case finds that the pauper's wife "took the land" between the period of her father's death and that of her marriage. At that time some estate in the land had already vested in her as executrix, therefore that was a re-taking, the effect of which was that she then surrendered the estate which she had previously taken under the will,