and there is delivered, this shall not charge that parish which persuaded her. That is precisely in point. Here the mother of the pauper was persuaded by one of the parishioners to go to an extra-parochial place. Independently of that decision, I should have been bold enough to come to the same conclusion. The general rule is, that an illegitimate child shall be settled in the place where it is born; and the fewer exceptions there are to that rule, the better. PATTESON, J., concurred.

Order of sessions quashed.

The KING v. The Inhabitants of ORMESBY. Nov. 17.

In 1827 a cottage and land were hired for a year, at the rent of 117. 10s., and it was agreed that the land should be entered on at Lady-day, 1827, and held till Lady-day, 1828, and the cottage entered on at May-day, 1827, and held till May-day, 1828. The land and cottage were occupied for a year respectively, commencing and ending at the days agreed on, and the rent paid: Held, that this was an occupation of a tenement for one whole year, sufficient to give a settlement under the 6 G. 4, c. 57.

UPON appeal against an order of two justices, whereby William Milestone, his wife and children, were removed from the township of Stokesley to the township of Ormesby, both in the North Riding of Yorkshire, the sessions confirmed the order, subject to the opinion of the Court on the following case :

About Candlemas, 1827, the pauper, being legally settled in Ormesby, took of one Emerson a cottage and *some land, both in the parish of Kirby. Both the cottage and land were bargained for at the same time, and the [*215 rent agreed upon, namely 117. 10s., was for both conjointly, and each was to be held for the term of one year, but the times of entering upon and quitting the land and the cottage were different; the agreement being, that the land should be entered upon at Lady-Day, 1827, and the cottage at May-day, 1827; the same to be held till Lady-day, 1828, and May-day, 1828, respectively. The pauper entered on the land at Lady-day, and the cottage at May-day; he quitted the former on the ensuing Lady-day, having occupied the same for a year; and at May-day quitted the latter, having occupied that a year; paying the full rent of both cottage and land at two separate payments; namely, the first half-yearly rent after Martinmas, 1827, and the second half-yearly rent about a week before May-day, 1828. No evidence was offered by the appellants as to the value of the land alone, or of the house alone.

Alexander, in support of the order of sessions. There has not been an occupation of the house and land for the term of one whole year, as required by the statute 6 G. 4, c. 57; because the house and land were never occupied together for the space of one whole year. Between Lady-day and May-day, 1827, the pauper did not occupy a building or land of the annual value of 107. During that period he was in possession of land only; but he had a mere interesse termini in the cottage. So, after Lady-day, 1828, he occupied the cottage only and not the land.

Starkie, contrà, was stopped by the Court.

*DENMAN, C. J. This question depends on the statute 6 G. 4, c. [*216 57; which enacts "that no person shall acquire a settlement by reason of settling upon, renting, or paying parochial rates for any tenement, unless such tenement shall consist of a separate and distinct dwelling-house or building, or of land, or of both, bona fide rented by such person, at and for the sum of 107. a year at the least, for the term of one whole year; nor unless such house or building, or land, shall be occupied under such yearly hiring, and the rent for the same, to the amount of 107., actually paid for the term of one whole year at the least." Now here the tenement did consist of separate and distinct building and land; they were bona fide rented for 107. The question is, whether it was occupied for one whole year? the house and land were occupied under

the yearly hiring, and each of them was for the term of one whole year. The words of the statute are therefore satisfied.

PARKE, TAUNTON, and PATTESON, Js., concurred.

Order of sessions quashed.

The KING v. The Inhabitants of OSSETT-CUM-GAWTHORPE.

Nov. 17.

A. agreed to become the hired servant of B. for five years, to do such work as belonged to the finishing of cloth, and B. promised to pay to A. 10s. a week for the first two years, 118. for the third, 12s. for the fourth, and 13s. for the fifth, the hours of working to be from six in the morning till seven in the evening, to be paid for all over-time, and a deduction to be made for all short: Held, by Denman, C. J., Parke, and Patteson, Js., Taunton, J., dissentiente, that this was not an exceptive hiring, but a hiring for five years absolutely.

ON appeal against an order of two justices for the borough of Leeds in the West Riding of the County of York, whereby George Clarke, his wife and child, *217] were removed from the township of Leeds to the township of Ossettcum-Gawthorpe, in the said Riding, the court of quarter-sessions confirmed the order, subject to the opinion of this Court on the following case. The pauper was born in Ossett-cum-Gawthorpe, and a hiring under the following agreement, and service for the time therein mentioned, in the respondent township, were admitted:-" Memorandum of an agreement made and concluded this 25th day of the fourth month, 1826, between J. and T. Walker, of Leeds, cloth merchants, on the one part, and G. Clarke, with the consent of his father, on the other part; the said G. Clarke doth agree to become the hired servant of J. and T. Walker, for the term of five years, to do such work as belongeth to the finishing of cloth, and to take any part of work the said J. and T. Walker shall think proper, and do the same to the best of his knowledge justly and faithfully; this being done, the said J. and T. Walker promise to pay unto G. Clarke ten shillings per week for the first two years, and eleven for the third, and twelve for the fourth year, and thirteen for the fifth and last year; the hours of working to be from six o'clock in the morning until seven o'clock in the evening, and to be paid for all over-time, and a deduction to be made for all short, either in sickness or in health. The question for the opinion of this Court was, whether G. Clarke gained a settlement in Leeds by such hiring and service.

Milner and Baines in support of the order of sessions. To gain a settlement by hiring and service, the servant must be under the control of the master for the whole year. Here the pauper was not under the control of his master from *218] seven o'clock in the evening to six o'clock in the morning; and, if that be so, this was an exceptive hiring. This case must be governed by Rex e. Birmingham, 9 B. & C. 925, and Rex v. Frome Selwood, I B. & Ad. 207. In the first of these cases the pauper was hired for a year, at the wages of 48. 6d. a week, to work from six in the morning till seven in the evening, with liberty to make as much over-work as he chose; and it was held to be an exceptive hiring, although Rex v. Byker, 2 B. & C. 114, was pressed upon the attention of the Court. In Rex v. Frome Selwood, 1 B. & Ad .207, the pauper was hired for three years to work as bedstead maker; in summer from six in the morning till seven in the evening, and in winter from seven in the morning to eight in the evening; and he was not to work for or serve any other person; and that was held to be an exceptive hiring. The present is a stronger case; for there it was agreed that the servant should not work for any other person; here there is no such stipulation; and the pauper could not be compelled to work more than thirteen hours a day. In Rex v. North Nibley, 5 T. R. 21, a service under a hiring for five years, to work as a colt shearer for twelve hours each day, was held to be an exceptive hiring. [PARKE, J. The sole question in this case is, whether, by the terms of the contract, the servant

was compellable to work for his master during the over-hours, on receiving compensation? In Rex v. Birmingham, 9 B. & C. 925, it was optional in the pauper to do over-work or not.] So here, the stipulation that the pauper was to be paid for all over-time; shews that it was optional in him to work or not, during the over-hours, for his master.

*Blackburne and Sir G. Lewin contrà. The legal effect of the con[*219 tract is, that the pauper undertakes to give the whole of his services for five years to his master. This case is distinguishable from Rex v. Birmingham, because there it was optional in the pauper to work over-hours or not; and from Rex v. Frome Selwood, because there the pauper was not entitled to compensation if he worked over-hours, and consequently the contract might be considered as one for the specified hours only. This case must be governed by Rex v. Byker, 2 B. & C. 114. There the pauper was hired for a year as a driver in a colliery, at the wages of 1s. 10d. for a good day's work, not exceeding fourteen hours, and 2d. a day more when that time was exceeded; and it was contended that the pauper was entitled to absent himself at the expiration of fourteen hours, and that the master could not compel him to work any longer. But Bayley, J., in delivering the judgment of the Court, said, that the time was only mentioned as the measure of the wages; that the contract did not impose any limit upon what might reasonably be required by the master; and that the relation of master and servant continued during the whole twenty-four hours. That applies precisely to the present case. Here, in the early part of the agree ment, the pauper contracts to serve absolutely for five years. Then follows a stipulation by the master to pay weekly wages, varying in amount from year to year, and then, lastly, the clause specifying the number of working hours. That is manifestly introduced only to explain the number of hours the pauper was to work fer those specified weekly wages; he was bound by the first *clause in the contract to give his whole services to his master during the five [*220 years; by the last clause the master was to pay him increased wages if he worked beyond the specified number of hours. At all events, the first clause in the agreement, whereby the pauper contracts absolutely to serve for five years, is free from all ambiguity; if it be said that the meaning of the subsequent clause, specifying the number of working hours, is doubtful, and may or may not refer to the early part of the agreement, so as to limit the time during which the pauper was to be bound to work for his master; then according to Hopkins v. Thorogood, 2 B. & Ad. 916, the first clause being clear, ought not to be controlled by the second, which is ambiguous.

DENMAN, C. J. It is impossible to decide this case without interfering with some former decisions, but, upon the whole, I think that this was not an exceptive hiring. The pauper agreed to become the hired servant of J. and T. Walker for five years, to do such work as belonged to the finishing of cloth. If the agreement had stopped here, there would clearly have been a contract to serve for five years, and the masters would have the right to command all the services of the pauper during that period. The question is, if there be any clause in the subsequent part of the agreement which clearly takes away that right? The master's promise to pay the pauper weekly wages, varying in amount yearly during the whole five years. Then comes a clause in these words; "the hours of working to be from six o'clock in the morning until seven o'clock in the evening, *and to be paid for all over-time, and a deduction to be made [*221 for all short, either in sickness or in health." There is nothing here to shew that it was in the option of the pauper to work or not for the master in over-hours; and if not, then the right given to the master in the carly part of the agreement, to all the services of the pauper, is not taken away. I think this was a complete bargain for all his time, and that there was not any part of that time during which the pauper could lawfully refuse to work for his master. PARKE, J. I am of the same opinion. I think there was no period of the day when the master could not lawfully command the services of the pauper.

The true way to ascertain whether this be an exceptive contract or not, is, to consider what would have been the situation of the parties, if there had been an extraordinary demand for work, and the master had called on the pauper to work during over-hours. Could he have refused? The words of the contract are, "that G. Clarke agrees to be a hired servant for the term of five years, to do work," &c. That is the stipulation as to working, or to the service to be performed. Then the contract goes on to fix the weekly wages to be paid from year to year by the masters. Then come the words on which the difficulty arises; "the hours of working to be from six o'clock in the morning until seven o'clock in the evening, and to be paid for all over-time." Those words seem to me to be a qualification of the sentence which immediately precedes them, and which fixes the amount of weekly wages; if that be so, then the *222] case is like Rex v. Byker, 2 B. & C. 114. It is distinguishable from Rex v. Birmingham,* 9 B. & C. 925, because, there, the pauper might, at his election, have worked or not for his master at over-hours. In Rex v. Frome Selwood, 1 B. & Ad. 207, the limitation as to the working hours immediately followed the stipulation for service. Here, between that clause and the one specifying the number of hours the pauper was to work, the clause intervenes, fixing the amount of weekly wages. It appears to me that the pauper could not lawfully refuse to work for his master during the over-hours (if required so to do), but that the latter was entitled to the whole services of the pauper during the five years, and consequently this was not an exceptive

contract.

TAUNTON, J. The cases undoubtedly run very near to each other. Certainty in sessions law is very important, and I am sorry therefore I cannot come to the same conclusion as my Lord Chief Justice and my brother Parke. This case appears to me not distinguishable from Rex v. Birmingham, 9 B. & C. 925, and Rex v. Frome Selwood, 1 B. & Ad. 207, and they being the latest cases on this subject, ought to govern this. It is said that in Rex v. Birmingham, 9 B. & C. 925, the pauper was to do over-work only if he chose. Looking at the terms of the present contract, I think it was optional in the pauper here also to work over-hours or not. The hours of working are defined to be from six o'clock in the morning till seven in the evening. I cannot see why this limitation of the hours of working was introduced, unless it were as an exception in the contract. It is said that it refers only to the amount of wages: I think it refers to the time of working as well, and that the pauper might have *223] refused to extend his time of service beyond those hours; and then it is not distinguishable from Rex v. Birmingham, 9 B. & C. 925, nor can I distinguish it from Rex v. Frome Selwood, 1 B. & Ad. 207. It does not signify much in what part of an instrument a particular stipulation occurs, unless it be so placed as necessarily to qualify only the words immediately preceding. Now I cannot consider this clause a mere regulation of wages, but I think it also limits the time of work. Without wishing to multiply distinctions in a branch of the law in which they are already too abundant, I must add that the present is the case of a servant hired to perform manufacturing work, and it is well known that exceptive contracts are extremely frequent on such occasions. This may in some degree furnish a key to the meaning of the parties, and assist in explaining their intention; and in affirming the order of sessions, I think we should not only fall in with the last two cases, but also with the general current of authorities.

PATTESON, J. I am of opinion that a settlement was gained. Rex v. Byker, 2 B. & C. 114, and Rex v. Frome Selwood, 1 B. & Ad. 207, turn on very nice distinctions. The question in this case is, whether the pauper was bound to serve more than the number of hours mentioned in the agreement? I thought, for a considerable time, that the case fell within Rex v. Frome Selwood, 1 B. & Ad. 207; but, looking at the terms of the contract, and the place in which the stipulation as to the number of hours occurs, I think that it was introduced

merely to regulate the wages; and that the pauper could not refuse to work for his master beyond those hours. I feel great difficulty in *distinguishing one case from the other; but, upon the whole, it seems to me that the [*224 present falls within Rex v. Byker, 2 B. & C. 114.

Order of sessions quashed.

The KING v. The Inhabitants of PENRYN. Nov. 17.

Between the passing of 35 G. 3, c. 101, and that of 6 G. 4, c. 57, a settlement might be gained by reason of a party being charged with and paying his share towards the public taxes or levies of the parish, in respect of a tenement above the value of 102.

ON appeal against an order of two justices, whereby Honour Gill, widow, and her three children, were removed from the parish of Budock to the borough of Penryn, both in Cornwall, the sessions confirmed the order, subject to the opinion of this Court on the following case:

In 1815, Henry Gill, the deceased husband of the pauper, took of Mr. Edg come a tenement, consisting of three rooms, in the borough of Penryn, at the rent of 67. a year. These rooms originally formed part of a dwelling-house, which, before 1815, had been subdivided into five distinct dwelling-houses, of which the three rooms occupied by the pauper formed one. The other houses

were occupied by other tenants. It was agreed between Gill and the landlord that Gill should pay all the rates upon the whole property, the amount to be deducted from his rent. Gill was accordingly rated to, charged with, and paid the church, poor, and highway rates for the borough of Penryn, between 1815 and 1830, for the whole premises, in one entire sum or charge. The aggregate annual value of these premises amounted to 167., being the rent which the landlord received for the same, but the value of the tenement *occupied by Gill was under 107. a year. In pursuance of the agreement with his [*225 landlord, Gill, when he settled his rent, was allowed the amount of the rates which he had from time to time paid. Gill was not answerable for the rent of any of the other tenants, nor had he any connection with or control over them. Follett in support of the order of sessions. The pauper having, before the statute of 6 G. 4, c. 57, been charged with and paid parochial rates in respect of a tenement above the value of 107., thereby gained a settlement. Rex v.

St. Pancras, 2 B. & C. 122, has decided, that settlement by rating was not abolished by the 35 G. 3, c. 101, s. 4, in cases where the rating has been in respect of a tenement of the annual value of 107.; and Rex v. Lower Heyford 1 B. & Ad. 75, shews also, that it makes no difference if the rate be repaid to the occupier by the landlord.

Kelly contrà. There are conflicting authorities on the question, whether or not the settlement by rating was abolished by the 35 G. 3, c. 101. Rex v. Islington, 1 East, 283, and Rex v. Penryn, 5 M. & S. 443, are at variance with Rex v. St. Pancras, 2 B. & C. 122, which was decided by three judges only, but which was undoubtedly recognized in Rex v. Lower Heyford. The question therefore is, which of these decisions is right? and, in considering that point, it is important to look to the state of the law, before the settlement by rating was given by the 3 & 4 W. & M. c. 11, s. 6. The statute 13 & 14 C. 2, c. 12, s. 1, enables two justices, upon complaint made by parish officers within forty days after any person coming to settle in *any tenement under the yearly value of 107., that such person is likely to become chargeable, to remove [*226 such person to the place where he was legally settled. If a party, after this statute, resided forty days in a tenement under the yearly value of 107., he was irremovable, and gained a settlement. If he occupied a tenement of greater annual value, he could not be removed at any time; and, by residing forty days,