WETHERELL, for the defendant, contended that the bankrupt was not a trader within the meaning of the statute. That he was the occupier of his own land, bringing the produce of it to market in the most advantageous manner. That if the argument for the plaintiff were to prevail the greater part of Lord Mansfield's arguments delivered in his judginent upon the case of Parker v. Wells, was wholly superfluous, for it would have been sufficient to have decided shortly upon the ground that, no matter how the brickmaker gets his materials, if he makes bricks for sale, he is a dealer and a trader within the meaning of the statutes against bankrupts. That if the bankruptcy were good in this case, the same rule might apply to almost every great landholder in the kingdom who possessed mines, alum, salt, or brick earth, or clay upon his estate. That in order to bring the trading within the statutes there must be a buying as well as a selling, the former of which was wanting in this case. And now the opinion of the court was delivered to the following effect, by Lord ELLENBOROUGH, C. J. after stating the case. "This case is distinguishable from that of ex parte Harrison; where the brickmaker took a piece out of the waste, and made a compensation to the lord of the manor for the soil used in his manufacture; and also from the case of Parker v. Wells, inasmuch as the earth procured in that case was acquired for the very purpose of making it into bricks. It is not necessary to say what would be our opinion if a case were now before us similar in circumstances. But here upon the death of Werley, the defendant took the estate as devisee, and he made the bricks from it, not buying one thing except the coals and a part of the wood. In this case Brown, 173. 1806. SUTION versus WEELEY. 1806, SUTTON versus WBELEY. he is like the burner of his own chalk or rock into lime, the smelter of his own ore, or the manufacturer of rock into alum. What reason is there for making a dis tinction between the two cases, in which there is really no material difference. For in order to smelt the ore considerable capital must be employed, and much labour used, and some ingredients are necessary to be bought in order to make rock into alum, and there is no greater virtue in the raw materials, nor are fewer articles required to make those commodities sale. able than in this case. In the several cases of the lime burner, and the alum manufacturer, the ground of the decision is that although the surface of the earth produces some profit, yet the selling it in the state in which it is altered by the manufacture, is held not to alter the character of the landholder. His lord, ship then took a review of the statute 34 and 35 H. VIII. c. 4, and also of the 13 Eliz. c. 7, s. 1, and concluded that under all the circumstances of this case, the defendant was neither a person living by other mens' substance within the principle of the former statute, nor was he one who gained his living by buying and selling within that of the latter.” JUDGMENT for the DEFENDANT. The KING against the Inhabitants of the Parish of Where a servant who was hired for a year on the 18th of AT the general quarter sessions for Susser, held on the 1806. The KING versus of RUSHALL. 14th of January, 1806, an appeal was entered and respited until the next sessions. At the general quarter sessions held at Midhurst, for the county of Sussex, the Inhabitants the 15th of April, 1306, it is ordered as follows: that is to say, upon the appeal of the parishioners of the parish of Rushall in the county of Wilts, from an order or warrant of two justices of the peace for the said County of Susser, for removing of Susannah Whit, singlewoman, from the parish of Wiston in the said county of Sussex, to the said parish of Rushall, and upon hearing of counsel on both sides, it is ordered by this court that the said order or warrant of the said two justices of the peace be confirmed, and by this court it is confirmed accordingly; subject nevertheless to the opinion of his majesty's court of King's Bench at Westminster, upon the following case, viz. the pauper being 30 years of age, and being a native of Wiltshire, and her mother and other relations living near Ruskall, sometime before old Michaelmas day 1802, the time at which the service in which she was then living, at Wiston in Susser, was to end, wrote to her mother desiring her to look out for a place for her; which she did and in consequence treated with Mrs. Peck, wife of the Rev. Kenrick Peck, of Rushall, Wilts. Upon which Mrs. Peck informed her that she would give her the same wages as she did to her other servants (being ten guineas a year and a guinea for tea), and wait till she came down, and desired that she would come as quickly as she could, but the mother made no absolute agreement for her daughter, but afterwards informed her that she had got a place for her if she liked it. The pauper left her service in Wiston immediately on its expiration, and went into Wiltshire without delay, and arrived on Saturday the 16th of October, at her mother's near Rushall, and on Monday the 18th, Mr. Peck 1806. versus the Inhabitants applied to her to know if she liked to come into his serThe KING vice, saying that he wanted her to come immediately as he had company to dinner. She went to Mr. Peck's of RUSHALL. house, and then it was for the first time agreed between Mrs. Peck and her, that the wages should be ten guineas for the year and a guinea for tea (which was the same as she had given to her other servants) with li berty of parting at a month's wages or a month's warning. She then went to work, and continued in Mr. Peck's service until old Michaelmas day following. About five weeks before that, she gave her mistress notice, that she should quit her service at the next old Michaelmas day following. On the said old Michaelmas day 1803, the pauper came to her mistress to receive her wages, who paid her the whole year's wages, and the guinea for tea, but told her she wanted a week of serving out her year. The pauper said she was willing to stay another week, but the mistress replied that it did not signify, as she had got another servant in her place who was then in the house (which she in fact was), she then left the house and never returned into the service afterwards; upon which facts the court of quarter sessions were of opinion that the pauper was settled at Rushall. TOPPING and DOYLEY, in support of the order of sessions; "This is a case upon a question of whether there was a dissolution of the contract: or a dispensation of the service; and it is a dispensation of the service and not a dissolution of the contract, for when the servant applied to her mistress, she said she did not consider that she could quit at Michaelmas 1803, and told her that she had not served her year, but had another week longer to serve, and there is nothing in the case to shew that either one or the other thought the contract was dissolved, the maid afterwards saying she is willing serve for the week. Although the mis. tress does not say that she will keep her, yet she does not say that the contract is at an end, but that it does not signify as she has got another servant in the house. In all the cases the court has been rather inclined to look to a dispensation than a dissolation of the con tract." Lord ELLENBOROUGH, C. J. without hearing the other side; "Has not the court in the cases of the King v. Sudbrook,* and the King v. King's Pyon,† laid down, that the mode of trying the question, whether it is a dissolution of the contract or not, is to see whether the master has the means of compelling the servant to return to the service. Here then was no absolute agreement made by the mother, for her daughter, but when she got to Mr. Peck's house it was for the first time agreed that she should have ten guineas a year and a guinea for tea, with liberty to quit at a month's wages or a month's warning. She gives notice a month 'before her time is up, and, at old Michaelmas day, when the notice expires, goes to her mistress for her wages, who says that she will give the wages, but she has a week longer to serve, and she, the pauper, says she is willing to stay another week; but the mistress replies that it does not signify, because she has another servant in the house. The question is whether this is enough to determine the contract, and if it is, there is no settlement gained. Now can there be a doubt of it? The one says I will quit at the end of the month, being old Michaelmas day, the other after some objection says, there is your money I have got another servant. If any body had harboured this person could that an action would be maintainable on the supposed existence of the relation of master and ser vant ?" one say 1806. The KING reus the Inhabitants of RUSHALL. |