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1827.

The King

RINGSTEAD.

parochial taxes in respect of it; but still the question remains, whether a settlement, good in its inception by those means, could be rendered incapable of completion, by the passing of the new act in the interval between such inception and completion : in other words, whether the pauper had not done enough before the passing of the new act, to entitle him to a settlement. With respect to the poor-rate, it is clear that he was duly assessed to that rate, and paid it. He did not, indeed, reside forty days after the payment of the rate, and before the passing of the act; but he did reside forty days; and it seems immaterial whether the whole of the residence was subsequent to the payment of the rate or not. Section 6 of the 3d & 4th W. & M. c. 11, renders the being charged with, and paying public taxes, equivalent to the notice to the parish, required by Section 3, of that act; and the true construction of all the statutes upon this subject seems to be, that there must be a forty days' residence after the rate is made, and not after it is paid, and that a party is settled in the parish where he has been duly rated, and has paid the rate, and has resided forty days, though some of those forty days were previous to the time of the payment. Then, with respect to the church-rate, that, undoubtedly, was made before the pauper came into the parish; but his name was introduced into it by the churchwardens on his coming. [Bayley, J. It does not appear when the churchwardens introduced his name into the rate.] Perhaps not, distinctly; but that seems immaterial: the only question is, whether he was duly rated. Now it is clear that he was; for the rate was made by the churchwardens, who had authority to make it: Watson's Complete Incumbent, c. 39, p. 397, where the law upon that subject is thus laid down :-“ Rates for reparation of churches are to be made by the churchwardens, together with the parishioners assembled, upon notice to be given in the church. And the major part of them that appear shall bind the parish ; or if none appear, the church

1827.

wardens alone may make the rate; because they, and not the parishioners, are to be cited and punished for a defect of repairs.”

The King

RINGSTEAD.

Campbell, and Flanagan, contrà. No settlement was acquired by means of either of the rates. The poor-rate was made on the 27th of May; and the statute 6 Geo. 4, c. 57, came into operation on the 22d of June following; therefore, there was not forty days' residence between the making of that rate and the passing of the act; and, consequently, there was no settlement gained there. The same objection applies to the church-rate. Mr. Nolan, in his treatise, lays down the law upon this point clearly and correctly. He says ,“ It is equally necessary, that the person claiming a settlement should be an inhabitant of the parish, as that he should be rated and pay. If he reside in one parish, and is rated in another, he gains no settlement in either, under the provision of 3 W. & M. c. 11, s. 6; for that statute says, that any person who shall inhabit in any town or parish, and be charged with, and pay his share towards the public taxes of the said town or parish, shall thereby obtain a settlement. It seems also, that he must be an inhabitant for the space of forty days. For the rating is substituted for public notice; in which last case, as well as in all other kinds of settlings, a residence of forty days is required by 13 and 14 Car. 2, c. 12(a). And he cites Rer v. St. Michaels at Thorn (6), and Rex v. St. Nicholas, Abingdon (c), as authorities. Then, as there must be forty days' residence after notice, and payment of the rate is notice, it follows, that there must be forty days' residence after the payment of the rate.

BAYLEY, J.-I think the pauper did not acquire any settlement in the parish of Ringstead, inasmuch as he was

(a) 2 Nolan, P. L. 115, 3d edit. (c) Skinner, 620. (6) 6 T. R. 536.

1827.

The KING

v. RINGSTEAD.

not resident there forty days after he was rated, and before the passing of the new law. Previously to the statute of 3 W. & M.c.11, it was requisite that notice should be given to the parish, and that the party should reside in the parish forty days after delivery of such notice. Then that statute dispensed with actual notice, and substituted the being charged with, and paying public rates; upon which it has been always held, that the being charged with and paying rates, will not of themselves confer a settlement, but there must be a forty days' residence. Then, if, while notice was necessary, a residence of forty days after the delivery of the notice was necessary also; it does follow, now that the being charged with and paying rates, is subsituted for notice, and a forty days' residence still required, that such residence must be after the charge and payment of the rate. Here there was no such residence in either instance, and therefore, no settlement was gained. The order of sessions, therefore, must be quashed.

The other Judges concurred.

Order of Sessions quashed.

The KING v. The Inhabitants of WHITNASH.

A contract Two Justices, by their order, removed John Edgington, of hiring and service for a

Mary his wife, and their two children, from the parish of year, made be- Radford Semele, to the parish of Whitnash, both in the tween a farmer and a la- county of Warwick; and the Sessions, on appeal, confirmed bourer, on a

the order, subject to the opinion of this Court upon the Sunday, is not within the following case. prohibition in 29 Car. 2, c. 7,

The

pauper, who was legally settled by parentage in the s. 1 ; and due respondent parish, was offered by his father to a Mr. Cook, service under it confers a of the appellant parish, on Sunday, the 12th of October, settlement.

1817, as waggoner's boy, and was hired by Mr. Cook, on that day, for a year. The pauper went into Mr. Cook's

1827.

service on Tuesday the 14th, and served him under the above mentioned hiring, in the appellant parish, until the 12th of October, in the following year. Mr. Cook was a farmer, living in the appellant parish, and has been dead about twelve months. The pauper worked for different persons in the respondent parish, as a labourer in husbandry, both before and after the hiring in question.

The King

v. WANASI.

Amos and Hill, in support of the order of sessions. The only question intended to be discussed in this case, is, whether the contract of hiring set forth, having been made on a Sunday, is or is not, valid and binding in law. On the part of the respondents, it is confidently submitted that it is. The statute 29 Car. II., c. 7, s. 1, which must be relied on by the other side, enacts “ that no tradesman, artificer, workman, labourer, or other person whatsoever, shall do or exercise any worldly labour, business, or work, of their ordinary calling, upon the Lord's day, and that any person being of the age of fourteen years or upwards, offending in the premises, shall, for every such offence, forfeit five shillings.” Now that enactment does not apply to the present case, either as regards the contract itself, or the contracting party. The making such a contract, was not doing or exercising any worldly labour, business, or work, of the pauper's ordinary calling, within either the letter or the spirit of the act of parliament; the contract, therefore, is not void ; and the pauper, being a boy at the time of the transaction, must be presumed, in the absence of proof to the contrary, to have been under the age of fourteen; he is, therefore, not within the reach of the penalty.

Goulburn and Pennington, contrà. The penalty imposed upon offenders against this act, has nothing to do with the present case; the only question is, whether the pauper was, or was not, lawfully hired. The 3 W. & M. c. 11, s. 7, enacts, " that if any unmarried person, not having child or children, shall be lawfully hired into any

parish or town for one year, such service shall be adjudged and deemed a good settlement therein;" the 29 Car. 2, c. 7, s. 1, enacts," that no labourer shall do or exercise any worldly labour, business, or work, of his ordinary calling, on the Lord's day:" the argument is, that the pauper was a labourer, exercising labour of his ordinary calling on the Lord's day, when he entered into the contract, and, consequently, that he was not lawfully hired. The statute of Charles, has recently been decided to apply to private as well as public conduct and transactions; Fennell v. Ridler (a); therefore the fact of this contract having been made in private, will not assist the case on the other side. That the pauper was exercising his ordinary calling upon the occasion is clear, inasmuch as he was doing an act without which he could not exercise his ordinary calling, namely, hiring himself to a service; and the making a contract of hiring and service between a farmer and a labourer, must according to common understanding, be deemed a work within the ordinary calling of both those parties. But the statute is not confined to works strictly within the parties' ordinary calling; Smith v. Sparrow (6), where it was held that an action would not lie on a contract entered into on a Sunday, though entered into by an agent, and although the objection was taken by the party at whose request the contract was entered into; and where it was expressly stated by Best, C. J., and Park, J., that the statute ought to receive such an extended and liberal construction, as will best promote its object, the advancement of piety and religion. The pauper in this case was actually contracting for the sale of his labour for a year. What real difference is there between a contract for the sale of labour, and a contract for the sale of goods ? Yet the latter, if made on a Sunday, would confessedly be void. [Bayley, J. If a barrister, or a judge, were to hire a servant on a Sunday, without whom he could not carry on his ordinary calling, would not the contract be binding? Or, if a

1827.

The KING

v. WHITNASH,

(a) 8 D. & R. 204 ; 5 B. & C. 406. (6) 4 Bingh. 84.

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