declaration by obtaining work from time to time of other persons. Indeed the very nature of the service, as stated in the case, shews that the master could not have intended to contract for the exclusive service of the pauper, because it is impossible that such an employment could fairly occupy the whole time or call forth the entire labor of any ordinary servant. I entirely concur in the opinion that no settlement was acquired by the pauper in the parish of Midley. LITTLEDALE, J. (a)-Rex v. Horwick is the only case cited which bears any resemblance to, or forms any authority for, the present, and even that is distinguishable from it in one important particular; for there, the pauper was provided with full and fair employment by one and the same master; whereas here, the work done cannot possibly be rated as the entire service of any husbandman, and the pauper actually resorts to other employers to fill up the measure of his labor and to augment the sum of his wages. Upon the grounds already detailed by the Court, I am also of opinion that the order of Sessions must be quashed. Rule absolute for quashing the order of Sessions. (a) Holroyd, J. was sitting in the Bail Court. 1824. The KING V. The INHABITANTS of LYDD. The KING 7. The INHABITANTS of HALLOW. Wednesday, Where a ser vant under a yearly hiring served for BY an order of two justices, Thomas Hewitt, Elizabeth his wife, and their two children, were removed from the parish of Powick to the parish of Hallow, both in the county of Worcester. On appeal, the Sessions confirmed the order, sub- and two days, ject to the opinion of this Court upon the following case: eleven months and was then committed to and imprisoned in the House of Correction for one month under 20 G. 2. c. 19. for misbehaviour, at the instance of the master: Held, that the commitment and imprisonment were no dissolution of the contract, or such an interruption of the service as to prevent a settlement, although the servant received no wages for the time he was in custody. 1824. The King v. The The pauper, Thomas Hewitt, gained a settlement in the parish of Hallow, about fourteen years since, by a hiring and service for a year in that parish. At the expiration of that service, he entered into the service of one John Price, INHABITANTS of HALLOW. in the parish of Tibberton, also in the county of Worcester, having been previously hired by him at Pershore Mop, a few days before old Michaelmas, (when his service at Hallow expired) to serve him as waggoner's boy from the said old Michaelmas to the old Michaelmas following, at the wages of £5. The pauper went into the service of Price, according to that hiring, and remained with him, serving him in the parish of Tibberton, till about a month before the old Michaelmas day, at which his service was to end, when disputes having arisen between his master and him, in consequence of his master having charged him with misconduct, he was summoned by his master before Mr. Gresley, a magistrate of the county, on the 15th September, 1809, to answer that charge. Upon hearing the complaint, it was agreed, between the magistrate and Price, that the pauper should either beg his master's pardon, and be received back into his service, or, if he refused to beg his pardon, that he should remain the rest of his year in prison. The pauper refused to beg Price's pardon, and was thereupon committed to the House of Correction, by virtue of a warrant of commitment which stated, that "Whereas, complaint hath been made before me, P. G. Esq. one, &c., upon the oath of John Price, of Tibberton, that Thomas Hewitt, servant of the said J. P. in husbandry, hath committed divers misdemeanors against him his master, and particularly by leaving the service of his said master on Wednesday last, and absenting himself therefrom the whole of such day, whereby the said J. P. lost the service of one of his teams such day, having no other person to drive the same: And whereas upon due examination, &c. the said T. H. is and stands convicted before me of the said offence, I do hereby," &c., concluding in the ordinary form, with a commitment "for the space of one calendar month from the date 1824. The KING v. The hereof." The warrant bore date the 15th September, 1809. The year for which the pauper had been hired by Price expired two days before the expiration of the calendar month for which he was committed. The pauper remained INHABITANTS in prison during the whole of the said calendar month, and of HALLOW. at the expiration of it was discharged. During the time of his imprisonment the pauper's clothes remained at the house of Price, in Tibberton, and when the pauper left the prison, he went to Price's house and took away his clothes, and received from Price all his wages except seven shillings, which Price deducted for the time the pauper had been in prison, and he then quitted the house. The question for the opinion of the Court is, whether there was a sufficient service for a year by the pauper under the last mentioned hiring to give him a settlement at Tibberton, subsequent to the settlement at Hallow. Russell and Ryan, in support of the order of Sessions. The question in this case is, whether, during the period which the pauper passed in prison, he can be considered as continuing in the service of his master, which, it is contended, he cannot. The actual service was unquestionably incomplete, and the circumstances are not such as will warrant the Court in holding that the deficiency was made up by an implied service. Now, in order to confer a settlement upon this pauper, he must have rendered either an actual or implied service for an entire year. Rex v. Barton-upon-Irwill (a) will probably be cited on the other side to shew that there was no dissolution of the contract between the parties, and therefore that the service continued during the imprisonment of the servant. That case, however, is distinguishable from the present. There the servant returned to his master after the expiration of his imprisonment, was received by him, and continued to serve under the original contract; here, the servant does not return to the service after his imprisonment, nor ever serves (a) 2 M. and S. 329. 1824. The KING V. The of HALLOW. again under the contract.-[Bayley, J. The pauper's being sent to prison was, in substance, the act of his master, and, therefore that did not dissolve the previously INHABITANTS existing relation of master and servant.]-Unless there was some subsequent act of the master to shew that he intended only to dispense with the last month's service, the sending the servant to prison did operate as a dissolution of the contract. Now there was no such act, for the pauper never returned to the service, and the relation of master and servant was never revived between him and Mr. Price; there is therefore no evidence of a dispensation here. In Rex v. North Cray (b), where the servant was committed before the end of his year for not giving security respecting a bastard child, and the master was overseer, and had been active in his commitment, and afterwards deducted out of his wages on account of his absence, the Court held it to be a dissolution.-[Bayley, J. Is this case distinguishable from Rex v. Barton-upon-Irwill? There Le Blanc, J. said "It is said indeed that there was an interruption of the service, but during the whole time he (the pauper) was subject to his master. It was under the authority of the contract that his master acted, when he punished him for misconduct; therefore it was not a dissolution. The master might, perhaps, have elected to dissolve it, but he has not done so. Neither do I think this was an interruption of the service to prevent a settlement."] The ground upon which the Court there decided that there was neither a dissolution of the contract, nor an interruption of the service, was, that the pauper returned to the service after his imprisonment, and in that important particular the present case differs from that. But it is perhaps not necessary to contend that there was a dissolution of the contract here; it is enough to shew that there was no dispensation of the last month's service, and then there is clearly an interruption of the service, so as to defeat the settlement. By the 8 and 9 W. 3. c. 30. the person claiming a settle (b) Cald. 495. ment by hiring and service must "continue and abide in 1824. the same service during the space of one whole year,' The KING which this pauper certainly has not done. The 20 G. 2. v. The c. 19. s. 2. which empowers magistrates to punish servants INHABITANTS for misconduct, either by commitment to the House of of HALLOW Correction, or by abating some part of their wages, or by discharging them from their service, will be relied on by the other side, but it does not help this case. The language of the warrant shews that the pauper was committed for a default in his service; how then can it possibly be argued that a residence in prison as a punishment for not performing his service, was either an actual or an implied service by the pauper? Pawlett v. Burnham (a) is an authority for saying that an interruption or discontinuance of the service is sufficient to defeat a settlement, and as there was no dispensation by the master of the last month's service, and no actual or implied service by the pauper during that time, the service is incomplete, and no settlement has been gained under it. Nolan, (with whom was Shutt,) contrà, relied upon the 20 Geo. 2. c. 19. s. 2., contending that by resorting to that statute for the purpose of punishing the servant, the master had consented to dispense with the actual performance of the residue of the service, but that by operation of law the contract remained undissolved, and the residence in prison was an implied performance, sufficient to confer a settlement. He was proceeding to distinguish this case from those cited, when he was stopt by the Court. ABBOTT, C. J.-I am of opinion that there was a complete service by the pauper in this case for one whole year, sufficient to confer upon him a settlement in the parish of Tibberton, and consequently that the order of Sessions, confirming the order of removal to the parish of Hallow, must (a) 2 Bott. 300. See Rer v. Westerleigh, Burr. S. C. 753. and Rex v. Winchcombe, Doug. 391. |