ing. Ashurst, J.-" I think this was a good service in W. All that the statutes require is, that there shall be a hiring for a year, and a continuance in the same service for a year. If so, the only question is, whether there was any discontinuance? It appears from the case that there was not; for the servant continued in the same capacity; he did his work as usual; and if he had continued to serve for half a year without entering into any new contract, he would have been entitled to a compensation for such service; the law would have implied, that he continued under the former agreement, and would have measured his damages by his former wages. Then he must be taken to have been in the capacity of a hired servant during that time." Grose, J.-" Two services cannot be joined if there be a chasm between them" (t).

In order to connect services in successive years, the servant must be unmarried at the commencement of the succeeding year; for if he be married he is incapable of making a new contract that shall give him a settlement, though marriage would not have defeated a contract made previously (u).

So, if a servant, being hired for a year, be rendered incapable of entering upon his service at the time when it is to commence, by reason of sickness or otherwise, and the master therefore refuse to receive him, the serving under a new agreement for less than a year shall not be connected with the original hiring, for the purpose of giving a settlement (v).

Places of performing Service may be different.]—With respect to the place where the service was performed, it being assumed that the hiring was regular, and a year's service actually performed, numerous decisions show that a change in the place of service is immaterial, except as applicable to the residence which fixes the place of settlement (w); and that a servant hired for a year is settled in the parish where he last completes a forty days' residence, though by his master's allowance he does no service there for him (x).

But if a servant hired for a year marry in the middle of the year, and then agree to serve his master, in a different capacity, for a year from that time, at different wages, and to live out of his master's family, but at another farm belonging to his master in the same parish, this is a dissolution of the original contract, and the servant,

(1) R. v. Sulgrave, 1 T. R. 778.

(u) Cald. 54.

(v) Id. 238.

(w) 2 Sess. Ca. 137.

(x) R. v. Dremerchion (Inh.), 3 B. & Adol. 420.

being married at the time of entering into the second, does not by his service gain a settlement; for, as was observed by one of the judges, "this is not a prolongation of the original contract, but entirely a new one, to commence at the time when such new one was made" (y).

Service by Assignment.]-If the servant, having performed part of his service with the original master, be permitted by such master to serve out the remainder with another person, this shall be a good service to gain a settlement; for, as was said by the court, "If a master lend his servant to a neighbour for a week, or any longer time, and he go accordingly, and do such work as his neighbour sets him about; yet all this while he is in the first master's service, and may reasonably be said to be doing his business; and there being no new contract, it is carrying on the service of the first master; and the second master paying the last half year's wages, does not alter the case; for the contract not being dissolved, he might have brought an action against the first master" (z).

will confer

With an Executor.]-So a service in the same capacity with the executor or lessee of a master for the remainder of a year, a settlement (a).

Dispensation with Service, and Dissolution of Contracts.-There are many cases in which, where there has been a clear hiring for a year, the entire year's service is not actually performed, but a portion has been expressly or tacitly dispensed with or forgiven by the master; and in these cases, wherever the relationship of master and servant bas continued, there is no doubt but that the servant has gained a settlement. When the interruption of actual service has occurred in the middle of the year, and the service has been resumed and completed, a question can rarely, if ever, arise as to the validity of the settlement. Thus, if the servant be prevented from working by sickness after the contract is made, though at the beginning of the service, he will nevertheless gain a settlement (b). Again, where a servant ran away, and continued absent a considerable time, as thirteen weeks, when his master found him, and took him to serve the remainder of the year under the original contract, he was held to gain a settlement,

(y) R. v. Great Chilton, 5 T. R. 672. (z) 1 Stra. 90.

(a) R. v. Ladock, Burr. S. C. 179;

R. v. Ivinghoe, Stra. 90; R. v. Hard.
horn cum Newton, 12 East, 51.
(b) R. v. Islip, 1 Stra. 423.

notwithstanding the interval in the service (c). Further, if a servant be taken before a magistrate, on a charge of misconduct, and committed by the magistrate to prison for a month, and after the expiration of his imprisonment return to his employer, and serve the remainder of his term, he will gain a settlement; for though the master might perhaps have put an end to the engagement on the misconduct of the servant, he shows, by receiving him again, that the contract continues (d). And if the charge take place after eleven months' service, and the imprisonment be for the last month of the year, the remaining in prison on the master's charges will be considered an "abiding in his service," and the settlement will be gained (e). And, in such cases, the deduction of wages by the master, whether by consent of the servant or not, makes no difference in the effect of the constructive service (ƒ).

Where the Absence takes place in the Beginning of the Year.]— Where the absence occurs in the beginning of the year, the questions which arise are more properly as to the contract than the service; for if the hiring be intended to take effect at once, so as to bind the pauper, it is clear the settlement is gained, though he may not begin to serve till some time afterwards. This, then, is usually a mere question of fact, to be decided by the conversations and acts of the parties, and not by the apprehensions or opinions of either.

When the Absence takes place at the End of the Year.]—But the absence on which questions most usually arise, is that which often occurs at the end of the year; and which is sometimes proposed by the master with a view of preventing the acquisition of a settlement by the servant. On these the question is, whether the absence was in consequence of a dissolution of the contract, or whether it was a mere dispensation with the service.

Absence to avoid a Settlement.]—At one time it seems to have been thought that a dissolution with a view to avoid a settlement, though with the entire concurrence of both parties, was fraudulent, and that being fraudulent, and therefore void, it could have no effect on the contract, which must be taken to continue. But this is not exactly the principle to be deduced from the more recent cases; nor does the

(c) R. v. Pyon, 4 East, R. 454. (d) R. v. Burton, 2 M. & S. 329; R. v. Coningsby, 4 B. & Adol. 156; 1 Nev. & Man. 199.

(e) R. v. Hallow, 2 B. & C. 739; 4 Dowl. & Ry. 299.

(f) Id. ibid.

term "fraud" seem properly applicable to such a transaction. The more correct view of the subject seems to be, that the law will always presume that absence obviously intended by the master to prevent his own parish from being burdened, shall operate as a dispensation, unless it shall appear most clearly that the servant not merely concurred in the arrangement, but desired it for his own purposes (g). The obvious interest of the master is against the settlement; the law presumes the settlement to be for the servant's benefit (h); and, therefore, it is reasonable that an arrangement between master and servant should be regarded with extreme jealousy, when the benefit is to be on the side of the party possessing influence over the other. And so far is this jealousy carried, that wherever the proposal comes from the master, and the servant merely assents, such assent is considered as unduly obtained, and the contract as subsisting till its natural termination.

Discharge of Servant.]-In other cases, where the master assumes to discharge the servant, without just cause, and the servant merely submits, the contract is considered as subsisting, and the service not rendered as dispensed with (i). And where the performance of the service, at the close of the term, is prevented by sickness, the settlement will be gained, whether the master pay the whole wages or deduct a portion (j). So, where the servant ceases to continue with his master in consequence of the master's bankruptcy or removal, the contract is not rescinded, and the settlement is gained (k). But if the absence at the end of the term arise from the wilful default of the servant, or if the master discharge the servant for a lawful cause, the contract is properly dissolved, and the settlement is gone (1). Thus, if a master discharge a female unmarried servant for being with child, the contract will be determined, and she may then be removed as chargeable, though she could not have been so removed if the master had chosen to continue her in his service (m). And if a master and

(g) See R. v. North Barham, Cald. 566; R. v. Preston, 2 Bott, 310; R. v. Sulgrave, 2 T. R. 376.

(h) It is difficult to understand the reason of this presumption, which does not merely imply that it is a benefit to a party to have a settlement, but to have the very settlement in dispute. Every natural-born subject is settled somewhere; for the place of birth is his place of settlement in default of any other; and it is hard to perceive how it is for

servant, at any time, without view to the settlement, agree to put an end to the relationship, and the servant departs, there can be no doubt that the contract is dissolved. Whether the contract has been thus dissolved is a question of fact, dependent on circumstances, and to be determined by them. If it has taken place a considerable time before the expiration of the term; if the servant has obtained or sought for another service; or if the master has hired or sought to hire another to perform the duty; the fact will be almost decisive of a dissolution. The fact of payment of the entire wages, or of a deduction from them, is never in itself decisive; but either is a circumstance to be considered among others, in guiding the bench to a decision.

4. Of the Necessity and Effect of Residence.-Forty days' residence is a necessary ingredient in this, as in other kinds of adventitious settlement; and it is, after all, the essential point; for the settlement is not obtained where the servant works, but where he resides, for the last forty days of his service. And even if there be a hiring for a year, and a service for a year, and the servant remains after the expiration of a year, and accompanies his master into another parish, either on a new hiring for a year, or without any engagement, he will be settled in the latter parish, where he sleeps the last forty days of his service, though after the termination of the year for which he was hired, and though no second year in the second parish was ever completed (n). If, indeed, the pauper be sent by the master for the last forty days to the house of his relations, on account of sickness or insanity, such a lodging, not being with a view to the objects of service, will not exonerate the parish where he served and lived while in health, nor cast the settlement upon that where he sojourned in his illness (o).

Where the Forty Days' Residence are not consecutive.]—The forty days' residence need not be consecutive; and where a servant, during his service, sleeps forty days at different times in one parish, and forty days at different times in another, the settlement will be in that parish where he sleeps the last night of his continuance in the service (p) ; and this even though he slept in that parish upon that particular night on leave of absence given by his master (q). The whole forty

(n) Cald. 65.

(0) R. v. Sutton, 5 T. R. 657. (P) R. v. Felcham, Cald. 290.

(q) R. v. Undermilbeck, 5 T. R. 387. See R. v. Dremerchion (Inh.), 3 B. & Adol. 420, ante, p. 773.