claims a beneficial interest under it, this is otherwise (h). Again, if produced, it must appear to be properly stamped (i). The sessions are bound to admit evidence offered to show that the contract was not one of apprenticeship, but for immoral or fraudulent purposes (k). As to stating this settlement in examinations and grounds of appeal, see, ante, sections 2 & 3 of this Chapter. SECTION VII. OF SETTLEMENT BY HIRING AND SERVICE. How it originated.]-The settlement by hiring and service, which has given rise to more litigation than any other, was founded on 3 W. & M. c. 11, and 8 & 9 W. III. c. 30. The first of these statutes enacts, "that if any unmarried person, not having child or children (1), shall be lawfully hired into any parish or town for one year, such service shall be adjudged and deemed a good settlement therein." In consequence of the ambiguity attendant on the words "such service," 8 & 9 W. III. c. 30, s. 4, provided, "that no person so hired shall be judged or deemed to have a good settlement in any such parish or township, "unless such person shall continue and abide in the same service during the space of one whole year." The intention of the legislature, in this last act, probably was that the year's service should be performed under the yearly contract; but, as we shall see, the words used have been held not to warrant this construction. By 9 & 10 W. III. c. 11, an exception is made as to servants residing under certificates; which (by 12 A. st. 1, c. 18, and 33 G. III. c. 54) is extended to all persons hired by, and serving with, certificated masters. And now, from and after 14th August, 1834, no settlement shall be acquired by hiring and service, or by residence under the same (m); and no person under any contract of hiring and service, not completed on 14th August, 1834, shall acquire, or be deemed or adjudged to have acquired, any settlement by reason of such hiring and service, or of any residence under the same (n). (h) 2 Phill. Ev. 9th ed. 207. (i) As to stamps, see ante. Doe d. St. John v. Hore, 2 Esp. 724; Johnson v. Llewellen, 6 Esp. 101. (k) R. v. North Wingfield (Inh.), 1 B. & Adol. 912; R. v. Barmston, 7 Ad. & E. 858. (1) i. e. not having unemancipated child or children, ante, p. 763, 764. (m) 4 & 5 W. IV. c. 76, s. 64. (n) Id. s. 65. Service under a hiring for a year, which year ended at Michael In considering this branch of settlement, we are to inquire 1. What parties might gain a settlement by hiring and service, before 14th August, 1834. 2. What contract of hiring was necessary to such a settlement. 3. What service was necessary to it. 4. Necessity and effect of residence in such cases of hiring and service. 1. What" unmarried persons" may gain a settlement by hiring and service.]-A widower, although he has children living, may gain a settlement by hiring and service, provided those children are emancipated, and have gained settlements in their own right (o). And if a married man agree conditionally to become the servant of another, and before a definite agreement take place, the wife die without issue, he will gain a settlement by a hiring and service for a year (p). So a marriage after the hiring, and during the service, or even before its commencement, will not prevent the servant from gaining a settlement: for marriage does not hinder the service, and the contract continues; therefore if the man perform his service, he gains a settlement (q). It may be generally laid down, that if the words of the statute be but complied with, respecting the contract, and the service under it, according to the interpretations put upon them by the courts, the relation in which the contracting parties stand to each other is of no importance (r). Thus a child may gain a settlement by a hiring by, and a service with, a father or mother, who has not one (s). It is not necessary that the master should reside or be settled in the parish where the servant performs his service, or where he sleeps. And a settlement mas in 1834, cannot be coupled with a previous service under a hiring for less than a year, though a year's service was completed before that act passed. Reg. v. Rettendon (Inh.), 6 Ad. & E. 296; 1 Nev. & P. 448, S. C. (Adhered to in Reg. v. St. John the Evangelist, 6 Ad. & E. 300, n.) A pauper was hired on 30th Nov. 1828, as a yearly servant, and served the same mistress in various places continuously till 1837. On 30th Nov. 1833, and for forty days previous, she lived with her mistress in St. Pancras, and from March, 1834, to the end of her service, in St. Marylebone. The court held that these must be taken to have been a suc- (p) Burr. S. C. 455. (g) R. v. Allandale, 3 T. R. 382; R. v. Stannington, 3 T. R. 385. (r) R. v. Chertsey, 2 T. R. 37; 2 Bott, 304. (s) Id. ibid.: Chesham v. Missenden, 2 Bott, 178; R. v. Chillesford, 4 B. & C. 94; 6 D. & R. 161, S. C. may be acquired by service under a yearly or general hiring in a public establishment, like the military college at Sandhurst, though the establishment is free of rates and taxes (t). 2. What Hiring is necessary to a Settlement, and herein of implied, general, and indefinite Hirings,─Hirings by the Piece or Week, special, exceptive, customary, prospective, and retrospective Hirings.] -The next question which has been agitated, is, "What shall be construed a hiring for a year?" This is in general a question of fact which the sessions must determine, and the queen's bench will not interfere with their conclusion, though dissatisfied with it (u). It was early decided that any contract which purports to be a general hiring, without any limitation of time being mentioned, shall be interpreted a hiring for a year. And moreover, that if there be only actual service proved, where the nature of the service is such as necessarily implies a hiring, the courts of law will raise such implication (v). The general rule is, that "an indefinite hiring without any circumstances to show that a less time was meant, shall be considered as a hiring for a year" (x). All that is necessary to give a settlement under the statutes is, that there should be a hiring for a year, and a service for a year. There must, therefore, either be an express or an implied contract for a year, in order to give the servant a settlement. And an express hiring for eleven months will not confer a settlement, unless the sessions find that it was fraudulent, and that a year's service was ntended, though only eleven months was expressed (y). But the party hiring himself must be in a situation to be able to make such a contract; and his ability so to do has not unfrequently been the subject of litigation. Thus, where a soldier in the king's service, liable at all times to be called upon active duty, hired himself for a year, it was made a question whether he was in a situation to make such a contract? and the judges were divided upon it: but the following remark of Bayley, J., is well worth attention:-"I do not find in the act of parliament," said he, "that there must necessarily be an indefeasible, but only a lawful, hiring ;" and what gives great (t) R. v. Sandhurst, 7 B. & C. 457; 1 Man. & R. 95, S. C. See R. v. Sparsholt, 4 Ad. & E. 494; 6 Nev. & M. 8, S. C., as to a turnkey at a gaol. (u) See R. v. Tyrley, 4 B. & Ald. 624, other cases 4 Burn, 29th ed. 504. (v) R. v. Long Whatton, 5 T. R. 447. (a) Cald. 440. Secus, in cases of hiring editors of reviews, &c., Baxter v. Nurse, 13 L. J. (C. P.) 82. (y) Per Lord Kenyon, C. J., R. v. Macclesfield, 3 T. R. 77. countenance to the inference to be drawn from this observation of the learned judge, is, that in a case decided shortly after in the same court, it was held that a person precisely circumstanced as the pauper in the above case, may contract for the renting of a tenement, and should be construed, conformably with the statute 13 & 14 Car. II. to take it cum animo morandi et manendi (z). Balloted local militiamen (a), and volunteers (b), were afterwards held incapable of contracting to serve for a year. But if it appear that the servant was hired to work by the piece, this will not be considered as a general hiring for a year (c). So, if it appear that the servant was hired as a weekly labourer, it shall not be considered as a general hiring for a year (d). Where nothing is said, in a contract of hiring, about the time, but a reservation of weekly wages, it is a weekly hiring only (e). And a hiring at 6s. a week for the winter, and 9s. a week for the summer, nothing being said about the duration of the service, is not a yearly hiring (f). But although the hiring be at so much per week, yet if the hiring was intended to be for a year, or if it appear from circumstances to have been general, the reservation of weekly wages will not control that hiring (g). A hiring at so much a week, a month's wages, or a month's warning, is a hiring for a year (h). So is a hiring to serve from Michaelmas to Michaelmas, if the master had no sale, and if he had, the servant to go; and this though the sale took place, and the servant left within the year (i). (z) R. v. Beaulieu, 3 M. & S. 229. (a) R. v. Taunton St. James, 9 B. & Cr. 831; 4 Man. & R. 695, S. C.; R. v. Holworthy, 6 B. & Cr. 283; 9 D. & R. 322, S. C. (b) R. v. Witnesham, 2 Ad. & E. 648; 4 Nev. & M. 447, S. C., on 44 G. III. c. 54. In those cases, however, the parties hired did not communicate their situation to their masters at the time of the hiring; accordingly, in later instances where this information was so given by local militiamen, and the masters agreed to take them on deducting from the wages at a certain rate, for the time they were absent on duty, the service for a year, minus that absence, was held sufficient to confer a settlement, R. v. Elmley Castle, 3 B. & Adol. 827; R. v. St. Mary at Walls, Colchester, 5 B. & Adol. 1023; 3 N. & M. 113, S. C.; and see 4 B. & Adol. 718; 1 N. & M. 462, S. C. (c) R. v. Woodhurst, 1 B. & Ald. 325. (d) R. v. Newton Toney, 2 T. R. 453. (e) R. v. Pucklechurch, 5 East, R. 382. (f) R. v. Warminster, 6 B. & C. 77; 9 D. & L. 70, S. C. (g) R. v. Birdbroke, 4 T. R. 245. (h) R. v. St. Andrew, in Pershore, 8 B. & Cr. 679. Bayley, J., said, If the reservation of weekly wages be the only circumstance from which the duration of the contract can be collected, the presumption is that it is to continue for a week only. Thus, the stipulation for a month's wages or warning, rebuts the presumption of weekly hiring. It then became a hiring unlimited in duration; in which case the law implies a hiring for a year. (i) R. v. Farleigh Wallop, 1 B. & Adol. 336. The settlement was there gained by connecting the service under the yearly hiring with a previous service, under a hiring for a less time. After the subject of general hirings had been nearly disposed of, then special hirings, and conditional hirings, and customary hirings, became subjects of controversy. On these points a few determinations will be sufficient. Special Hiring.]—A hiring of a party for a year, who is to be paid according to the work done, is a good hiring, and the service for the year under it completes all that the statute requires (k). So, a hiring for three years, at so much per week, to work twelve hours each day, and to be paid for extra hours, is a good hiring. So, a hiring for eleven months, with a stipulation that the servant shall give the master a month's service in beyond the eleven months, is a good hiring for a year. "The real question is no more than whether eleven months, and one month, make twelve months. There are no particular technical words necessary to make a hiring for a year. The substance of this agreement is, to serve twelve months, and what signifies the variation of expression? Every contract to serve is a contract to serve for a year, unless there be something to explain it to be otherwise" (l). So, if the servant be hired for a year, with permission to be absent for a month to attend his duty in the militia, upon finding another to do his master's business: a service under this hiring will gain a settlement (m). But where a servant in husbandry was hired to serve, at certain weekly wages, for an indefinite time, which wages were in harvest month to be increased, and lowered again after the expiration of harvest and continued to serve under his hiring for eighteen months, it was decided to be no hiring by the year to gain a settlement. There did not appear on the face of the contract any obligation to continue the service longer than from week to week; and as to the inference of a hiring for a year, from the general words of the contract, it was rebutted by the circumstances of there being a variation to be made in the harvest month, without ever saying for the harvest month, from which latter expression, had it been used, perhaps an inference might have been drawn, that it could not be a weekly hiring (n). So, if it be the custom of the country for the master to let the servant have every Sunday and holiday throughout the year to himself, (k) Burr. Set. Ca. 152. (1) Id. 433. (m) Id. ibid. (n) R. v. Dodderhill, 3 M. & S. 243. |