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1819.

The King

against The Inhabit.

ants of POLESWORTH.

moned his master before the magistrate. When before the magistrate, the pauper, in answer to a question put to him by the magistrate, said he was willing to serve his time out; but the master said he would not take him again. The magistrate then directed the master to pay the pauper his whole wages: which the pauper took, and was satisfied; and went to his grandfather's, where he remained till the day after Falseley fair, when he entered upon his new master's service.

Adams and Finch, in support of the order of sessions. The question in this case is, whether what took place before the magistrate amounted to a case of dispensation or dissolution; and if there was any evidence

upon which the sessions might draw the conclusion in favour of the former, this Court will not disturb the conclusion which they have drawn, Rex v. Maidstone. (a) The circumstances in this case shew that the master had no reasonable ground for dismissing the pauper, Rex v. Islip. (6) Here, the pauper received his full year's wages; and there is this additional circumstance, that he neither entered nor offered to enter into

any

other service, till after his year had expired. That distinguishes this case from those of Rex v. King's Pyon (c), and Rex v. Leigh (d), which will be relied on by the other side. And it appears from the judgment of Le Blanc J., in Rex v. Hardhorn-cum-Newton (e), that that circumstance is most material. They were then stopped by the Court.

(a) 12 East, 550.
(c) 4 East, 354.

(d) 7 East, 539.

1

(6) 1 Str. 423.
(e) 12 East, 56.

Reynolds

1819.

The KING

against The Inhabit

ants of POLESWORTH.

Reynolds and Holbech, contra. The test to which all these cases must be brought is laid down by the case of Rex v. King's Pyon (a); for there Lord Ellenborough says, that where the parties stand in such a situation that neither the master can compel the servant to come back into his service, nor the servant can compel the master to take him back, and neither of them have

any legal means of compelling redress against the other, there is a dissolution of the contract. Now, if this case be tried by that test, it is quite clear that the master, by his payment of the full year's wages before the magistrate, lost all right of compelling, after that, the pauper to return to his service; and the pauper, by accepting the wages, and declaring himself satisfied, lost all right of compelling the master to take him back. The only circumstance which is said to distinguish the two cases is this, that in Rex v. King's Pyon the pauper offered her services to other persons; but that was only evidence from which her satisfaction at the arrangement might be inferred: and here the sessions have found, as a fact, that the pauper was satisfied. The same ob. servation applies to Rex v. Leigh. Besides, in this case, the pauper was a servant in husbandry, over whose contract a magistrate has a jurisdiction.

ABBOTT C.J. It seems to me, that the court of quarter sessions were quite right in refusing to consider this as a case in which the contract between the parties was dissolved. There can be no dissolution without a mutual consent of the parties, or some justifiable cause of complaint on the part of the master; but here he

(a) 4 East, 354.

Kk

VOL. II.

quar

1819.

'The King

against The Inhabit

ants of POLESWORTH.

quarrelled with the pauper without sufficient reason, for the pauper had done no more than according to Rer v. Islip he had a right to do. There was therefore no justifiable ground for dismissal. Then is there any mutual consent? It appears that the parties went before a magistrate, and the pauper then stated that he was willing to continue in the service: the master, however, peremptorily refused, upon which the pauper, after receiving his full wages, said that he was satisfied; but he neither contracted nor offered to contract any other service. And I think that there is nothing in this case to shew, that if on the following day his master had ordered the pauper to return into his service, he would not have been bound so to do. I think, therefore, that the order of sessions was right.

BAYLEY J. The case of Rex v. Islip seems to me to be in point. There the servant, as in this case, after having been refused permission to go to the statutes for the purpose of getting another place, went without such permission; and the master refusing to receive him back, the Court held that it amounted only to a dispensation, and not to a dissolution of the contract. In the two cases which have been cited, the servant either contracted or offered to contract a service with another master, and that materially distinguishes them from the present case, as appears from Rex v. Hardhorn with Nero ton. The only grounds for deciding in favour of a dissolution, are either mutual consent or sonie wrongful act of the servant; but here all that is stated is a wrongful act on the part of the master. And as to the servant stating that he is satisfied, that is easily to be explained;

for

1819.

for his whole wages being paid, he was satisfied that the remainder of his service should be dispensed with. .

The KING The Inhabit

ants of

against POLESWORTH.

HOLROYD J. There is nothing in this case stated to shew, with sufficient distinctness, that the servant consented to put an end to his contract. I think that his not having contracted any other service before the end of the year inconsistent with his return to that of his master distinguishes this case from those which have been cited.

Best J. concurred.

Order of sessions confirmed. (a)

(a) Vide Rer v. Whittlebury, 6 T. R. 461., and Rer v. Sudbrook, 4 East, 556.

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nanted that he

The Right Hon. Charles Earl of SHREWSBURY, Friday,
" against Gould, surviving Executor of John

GILBERT, deceased.
COVENANT. The declaration stated that George Where a

lessee coveEarl of Shrewsbury, since deceased, being seised of

would at all the demised premises in fee, by indenture, dated Jan

times and sea

sons of burning uary 1st, 1761, demised to John Gilbert all that

lime supply the limestone that then was or thereafter might be found lessor and his

tenants with · out by digging, sinking, or otherwise however, lying lime at a stipu

lated price for or being in certain commons or common lands, unin the improve

ment of their closed, then called or known by the name of Ribden

lands and repair

of their houses: * Stones or Ribden Flatts, or commons, where the lime

Held that this kilns then were, or upon any other waste land or com

was an implied covenant also

that he would burn lime at all such seasons, and that it was not a good defence to plead that there was no lime burned on the premises out of which the lessor could be supplied.

Kk 2

mons

1819.

Earl of SHREWSBURY

against Goule.

mons within the manor of Alton, with free liberty to and for the said John, his executors, administrators, and assigns, from time to time, and at all times during the term thereby letten, to dig, search, sink, and trench in upon the aforesaid commons, and every part thereof, at his and their wills and pleasure, for the finding out and raising up of the said limestone, and to build kilns for the burning and converting the same to lime for the use and benefit of the said John, his executors, administrators, or assigns; and the said late earl, his heirs and assigns, did thereby further agree, that if there thould be an opposition, and other kilns built by any other person or persons in other lands, so as to lic nearer to the sale of the aforesaid kilns, then and in such case it should and might be lawful to and for the said John, his executors, administrators, and assigns, to erect one lime-kiln within any of the inclosed land in the said manor of Alton, or township of Farley and Cotton, belonging to the said late earl, and to get the stone therein to supply the said kiln, save and except out of the said grant and demise, for the said late earl, his heirs and assigns, his and their agents, servants, workmen, tenant or tenants, for the time being, liberty to get limestone, build kilns, and burn to lime the said stone for the use and benefit of the said late earl, his heirs and assigns, his or their tenant or tenants, for improving their estates for their own use, and not otherwise, or to get the said stone for any other use that might be wanted; to have and to hold all and singular the said demised limestone unto the said John, bis executors, administrators, and assigns, for the term of ninety-nine years, if Thomas Gilbert, Robert Gilbert, and John Gilbert, or any or either of them, should so 14

long

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