Whitehurst, contrà. The office of pinder is in no instance a public annual office. There is no authority for saying that there was ever a legal office of pinder in parishes, though there is in manors. The duty of the pinder is to *155] prevent encroachments on the lord's *waste: he is the mere servant of the lord of the manor, not of the parishioners. It is an employment rather than an office. To constitute an office there must be some public duties to perform, for the breach of which an indictment will lie. The ale-taster and hog-ringer are appointed at the court leet. The duty of the former was to inspect weights and measures, and to warn the jury to serve at the court leet. The hog-ringer is an office of public benefit to the parishioners, with certain stated fees in respect of such service. [PARKE, J. It is to prevent a public nuisance.] (See Rex v. Whittlesea, 4 T. R. 807.) Here, too, the pauper was appointed by three individuals only, and not by any competent authority, and that appears on the face of the case.

DENMAN, C. J. The court of quarter sessions have found this to be a public annual office, subject to the opinion of this Court on the evidence. We think their finding is not warranted by the facts which they have stated. The office of pinder in this parish is not proved to be ancient, for it is not known that there was any such officer before 1825. Nor was the pauper appointed by any authority known to the law. The hog-ringer is an annual officer of great public utility, appointed at the court leet. It is not necessary to decide generally whether a pinder, properly appointed, be a public annual officer within the act; it is sufficient to say, that under the circumstances of this case, the office was not in this parish a public annual office.

PARKE, TAUNTON, and PATTESON, Js. concurred.

Order of sessions quashed.

*156] *The KING v. The Inhabitants of CONINGSBY. Nov. 10.

A female pauper hired for a year, was, during the year, apprehended and fined for having committed a malicious trespass, contrary to the statute 7 & 8 G. 4, c. 30. She went to prison instead of paying the fine, by the advice of her mistress, who told her to return when her time was out; and after her imprisonment, which lasted a month, she did return to her service, and continued in it till the end of the year, and was paid her whole year's wages: Held, that there was a dispensation with the service during the month of her imprisonment, and that she gained a settlement.

Ox appeal against an order of two justices, whereby E. Flintham, single woman, was removed from the parish of Coningsby, in the parts of Lindsey, in the county of Lincoln, to the parish of Stickney in the said parts and county; the sessions discharged the order, subject to the opinion of this Court on the following case :

A few days before May-day 1829, the pauper was hired by Mr. Gosling, from the same May-day, at the wages of 37. 10s., and went into his service, in the parish of Stickney, on that day. About harvest time, in the same year, she was apprehended upon the complaint of W. Foster, her master's neighbour, on a charge of having wilfully and maliciously damaged property belonging to him. The magistrates before whom the complaint was heard, fined her, and she, not paying the fine, was committed to prison for one month. It was by the advice of the mistress (who was present at the hearing of the complaint) that the pauper went to prison instead of paying the fine. When she was taken to prison, her mistress told her she was to return when her time was out, and she also sent her provisions occasionally during her imprisonment. She was discharged at the end of the month, returned immediately to her master's, and went about her work as usual. She staid in the service till May-day 1830, and

on going away received her whole wages. The question *for the opinion of this Court was, whether, under these circumstances, she gained a settlement in the parish of Stickney.

[*157 Hildyard in support of the order of sessions. There was not, in this case, a service for a year, or any dispensation with service during the period of the imprisonment. There are two classes of cases applicable to this subject; one, where the servant has been committed to prison for bastardy, as in Rex v. Westmeon, Cald. 129, and Rex v. North Cray, Cald. 495, and the other where he has been committed for misconduct in his service, as in Rex v. Hallow, 2 B. & C. 739, and Rex v. Barton-upon-Irwell, 2 M. & S. 329. In the first class of cases, it has been held that no settlement was gained, by reason of the interruption of service during the time the party was in custody. In Rex v. Hallow and Rex v. Barton-upon-Irwell, which will be relied upon by the other side, the servants were committed at the instance of the master, and the contract of service was held to continue; but those cases are distinguishable from this, because there the imprisonment was for the purpose of enforcing the contract of service. There is no case which establishes that there may be a constructive service under circumstances where actual service is impossible. The insertion of the provision in the militia acts, that service in the militia shall not be deemed absence from service, shows that an absence by legal compulsion would otherwise prevent the time lost by such absence from being reckoned for the purpose of settlement. It may be said here that the going to *prison was voluntary; but the fallacy [*158 of that argument consists in representing the alternative (of not going) as clogged with no condition, whereas the condition was "to pay a fine," which might be less eligible; if so, it was the duty of the mistress to dissuade the pauper from paying it; and it is to be presumed the sessions have thought so by their deciding as they have. Besides, the imprisonment was not voluntary; for sup pose the justices to have acted without authority, and the pauper to have brought an action, the defendant could not have alleged that the pauper had imprisoned herself, because she might have paid the fine. But assuming it to be voluntary, there cannot have been a dispensation, because the master could not dispense with services which he could not command. It is of the essence of constructive service that actual service shall have been possible. In Rex v. St. Peters, 8 T. R. 478, Lord Kenyon stated the distinction to be, "that where the servant continued liable to serve during the whole year, though the master dispensed with the actual service for any part of it, the servant gained a settlement, because the relation of master and servant subsisted all the year, and the master might resume the right to the service if he chose; but that where the parties absolutely put an end to the contract before the expiration of the year, the servant did not gain a settlement." Here the master could not during the term of imprisonment command the services of the pauper. It is like the case of the militia-man, who, not being sui juris, cannot contract to serve for a year, Rex v. Taunton St. James, 9 B. & C. 831.

*Fynes Clinton, contrà. This is an ordinary case of dispensation with service. In Rex v. Westmeon, Cald. 129, and Rex v. North Cray, [*159 Cald. 495, the servants, after the imprisonment, never returned to their masters. Here the pauper did return, and received her whole year's wages. In Rex v. Kenilworth, 2 T. R. 600, Buller, J. says "the circumstance of the pauper having been apprehended on a charge of bastardy, I lay out of the question, for it was competent to the master to receive him back again after he was discharged out of custody, if he pleased." Here the absence from the service was permissive, for her mistress advised the pauper to go to prison instead of paying the fine, and told her when her time was out to return to her service. In Rex v. Barton-upon-Irwell, 2 M. & S. 329, the pauper was, on the complaint of his master, committed to prison for a month. At the end of nine days, he was discharged at his master's instance, returned immediately to his service, and served seven months over his year; and though he received no wages for the time he

was in custody, it was held that there was no dissolution of the contract, and that the pauper gained a settlement. As to the impossibility of service during the absence, that argument might be used in many cases where, however, there is no doubt of the dispensation. The clause in the militia acts was intended to prevent a dissolution of the contract of service; but, independently of such clause, if a master received a pauper into his service after an absence occasioned by his being a militia-man, that would have been a dispensation. [PARKE, J. The clause prevents the master from refusing to take the servant back, as he otherwise might.]

*DENMAN, C. J. This head of settlement is made to depend upon two *160] things: first, there must be a hiring for a year; and, secondly, an abiding and continuance in the same service for a whole year. Those words, strictly construed, would perhaps import actual service. It has been decided, however, that there may be a dispensation by the master with the performance of the servant's duties for a time, and that during such period there is a constructive service, sufficient to satisfy the words of the statute. The consent of the master to dispense with such service may be either express or implied: and it is implied, where the servant, having absented himself for a time, has returned to the service, and been received by the master, and had his full wages paid. I think, in this case, the absence of the pauper during the imprisonment must be taken to have been with the consent of the mistress. It may be collected from the statement that the pauper could have paid the fine, and that the mistress interfered to prevent her. After the term of imprisonment expired, she received her back, and paid her her full wages. It has been ingeniously argued, that the absence here was not permissive, because the law compelled the pauper to be imprisoned unless she paid a fine. But she had her election, either to pay the fine or go to prison; and she did the latter by the advice of her mistress, who supplied her with provisions during her confinement. It seems to me, therefore, that the service was dispensed with by the mistress. Rex v. Westmeon, Cald. 129, and Rex v. North Cray, Cald. 495, are distinguishable, for there the masters did not consent to the absence, and showed their dissent in the most effectual way by deducting from the wages.

*161] *PARKE, J. To constitute a settlement by hiring and service, there must be a hiring for a year and a service for a year, but the service need not be actual; of necessity it may be constructive, because no servant serves his master every hour of every day; and a dispensation from service may be implied. Even in the case of a wilful absence, it has been held that if a master receive back his servant afterwards, and pay him his wages, that is a dispensation with the service during the period of absence. In Rex v. North Cray, and Rex v. Westmeon, the absence of the servant was wilful, for the imprisonment was occasioned by his own misconduct, but those cases are distinguishable from the present, because the pauper never returned to the service after the imprisonment. Absence during imprisonment, like absence from other causes, may be purged by consent. It has been said that the master during the term of imprisonment could not recall the pauper to his service. But, as Mr. Clinton has observed, the same may be said where the absence is occasioned by illness, proceeding from the misconduct of the servant; or where the servant during such absence is at a great distance from the master.

TAUNTON, J. I am of the same opinion. Rex v. North Cray and Rex v. Westmean are distinguishable, because it did not appear that the master again received the servant into his service; but I cannot help thinking the good sense to be in what is stated by Lord Mansfield and Buller, J., in Rex v. North Cray. The pauper, eight or nine days before the expiration of the service, had been committed for not giving security to indemnify the parish, as the father of a *162] child likely to be born a *bastard, and Lord Mansfield says, "The single question is, whether the pauper served his year; in fact he did not; did he then constructively? There is not a pretence that the master con

sented to dispense with the time he did not serve; his absence and imprisonment were the consequences of his own criminality. His imprisonment was not illegal." Those observations apply to the present case; and I think this doctrine of dispensation has been carried too far. The current of authorities, however, compels me to say there may be a constructive service even during the time for which the servant is committed in execution for misconduct; and I yield to authorities,

not to reason.

PATTESON, J. I think that we are bound by the authorities to hold that there was a dispensation with the service during the time the pauper was imprisoned. Order of sessions quashed.

The KING v. JOHN HEARLE TREMAYNE, Esquire.

An owner of the soil, who has granted to adventurers liberty to dig, mine, work and search for manganese for twenty-one years, and the same to take and convert to their own use, and to make adits, shafts, &c., rendering to him 17. 158. for every ton weight of manganese raised during the term, is not an occupier of any portion of the soil, and consequently not rateable to the relief of the poor.

IN a rate made for the relief of the poor of the parish of Maristow, in the county of Devon, on the 15th of September, 1831, J. H. Tremayne, Esq., was assessed "for manganese dues," in the sum of 77. 10s. He appealed against the rate, on the ground that he was not the occupier of any manganese dues in the parish; and also that he was not liable by law to be assessed in the said rate, *for or in respect of any manganese dues. The sessions confirmed the rate, subject to the opinion of this Court on the following case :

[*163 H. H. Tremayne, clerk, the deceased father of the said J. H. Tremayne, being tenant for life, with a power of granting leases and settlements of the lands hereinafter mentioned, did, by indenture, bearing date the 23d of October, 1815, and made between the said H. H. Tremayne of the one part, and John Williams, Esquire, of the other part, grant unto Williams, his partners, fellow adventurers, &c., liberty, license, and authority to dig, work, mine, and search for manganese, in and throughout all those messuages, farms, tenements, and premises, called Allerford, Lea Down, and Holster yard, situate in the parish of Maristow and the same manganese there found, to raise and bring to grass, and there to pick, dress, and make merchantable and fit for sale; and the same to take and carry away, convert, and dispose of at his and their will and pleasure. The said indenture also gave them liberty, within the before-mentioned limits, to make and work such adits, shafts, pits, watercourses, &c., and to erect such engines and other buildings, as they should think necessary or convenient; and it gave them also the use of waters and watercourses within the said limits, with liberty to divert the same, &c., for the more effectually and beneficially exercising and enjoying of the liberties, powers, and authorities by the said indenture granted; excepting unto H. H. Tremayne, his heirs and assigns, all other ores, minerals, and metals, and all quarries of stone and slate within or under the said premises, or any part thereof, with full power and authority to them, their workmen and agents, into and upon any part of the same premises to enter, and in [*164 any manner to search for, break, land, stamp, and dress the said lastmentioned ores, minerals, metals, stone and slate, and to take and carry away the same. The grant was for twenty-one years from the 15th of March then last past; yielding and paying unto the said H. H. Tremayne, his heirs or assigns, the sum of 17. 15s. for every ton weight of the said manganese raised or gotten during the term within the limits of the said settlement: free and clear of and from all charges and expenses of raising, dressing, and returning the same, or otherwise incident to the adventure.

The

H. H. Tremayne died on the 10th of February, 1829, and the appellant succeeded him, and is now seised as tenant for life of the lands above described, subject to the said grant or settlement, and (as to some of the lands) to leases at rack-rent hereinafter mentioned. By virtue of the grant, and within the limits thereby described, the said J. Williams, with his partners and co-adventurers, have dug and sunk shafts, driven adits and levels, and opened pits for the purpose of searching for and raising manganese. They have also erected crushing-machines, worked by water wheels, for pulverizing the ore when raised, and built houses and sheds for dressing and cleaning the same. whole of these works have been undertaken and performed at their sole risk and expense, by their own labourers, and under the entire direction and superintendence of their own agents, and without any expense, risk, or interference whatsoever of, or on the part of, either H. H. Tremayne, or J. H. Tremayne; and the whole have continually been, and still are, in the sole and exclusive possession and occupation of the said J. Williams, his partners *and co-adventurers. Considerable quantities of manganese have from *165] time to time been raised by them, the whole of which, after undergoing several processes of pulverizing, dressing, and cleansing at a great expense, have been sold and disposed of by them as and to whom they thought fit.

J. Williams and his co-adventurers have regularly accounted with H. H. Tremayne, in his lifetime, and since his death with J. H. Tremayne, for the 17. 15s. per ton reserved by the said indenture, and the assessment now appealed against is laid in respect of the said money payments. The tenements and farms of Allerford and Lea Down, part of the lands comprised within the limits of the above settlement, are let to and occupied by tenants at rack rent, subject to a reservation of mines, ores, metals and minerals, with the usual powers of digging and searching for the same; those tenants are respectively assessed to the poor rates of the parish in respect of such occupations, proportionably with the other farmers and occupiers of lands in the parish; and the tenement and farm of Holster Yard, the residue of the lands within the same limits, are in the occupation of the said J. H. Tremayne, who is also rated in the rate appealed against in respect of such occupation.

The question for the opinion of the Court is, whether, under these circumstances, Mr. Tremayne can be considered such an occupier in the parish of Maristow, as to make him liable for the above rate for manganese dues.

*166]

15s.

Kelly and Escott in support of the rate. Mr. Tremayne was liable to be rated for these manganese dues, as an occupier of land in the parish of Maristow; because, by the conveyance, no interest in the land *passed out of him, but a mere easement; and he was a beneficial occupier, by receiving 11. per ton on all ore raised. There are two classes of cases applicable to this subject. In the first are Rowls v. Gells, Cowp. 451, Rex v. The Baptist Mill Company, 1 M. & S. 612, and Rex v. St. Austell, 5 B. & A. 693. In Rowls v. Gells, Cowp. 451, the lessor under the crown of lead mines, being entitled to a certain portion of the ore raised from the mines, was held to be rateable in respect of the profit arising from such portion as an occupier of land, because they who had a right to raise it had but a qualified occupation, or rather a mere right of working the mines of the lord or owner, and of taking a portion as their remuneration for raising the lord's or owner's proportion. And Rex v. The Baptist Mill Company, 1 M. & S. 612, shews, that if this portion be granted to a lessee the lessee is rateable; for it is a lease of such an interest in the land itself, as renders him the occupier. In Rex v. St. Austell, 5 B. & A. 693, which very much resembles the present case, the owner of the soil, by indenture, granted to certain adventurers full and free liberty to enter on the land and work mines, and to erect buildings on the land for that purpose, &c.: and it was agreed that the adventurers should raise the ores, and prepare them for smelting, and when in that state, taking the remainder for their own use, leave a certain proportion for the use of the lessor, or pay him VOL. XXIV.-6