1803. The KING Lambeth.* versus Inhabitants of had WILLIAMS then cited the King v. St. Mary, Lambeth. And added, that service for the year never been required with the same strictness as a hiring KING'S PRON. for the year; because the master, if it were strictly necessary to serve the whole year, might so order it that the servant should never gain a settlement. And therefore unless the servant consents to the dissolution of the contract, the settlement does not fail by the cessation of the service within the year. Lord ELLEN BOROUGH, C. J. without hearing the coun= sel on the other side. "Does not the servant in this case acquiesce afterwards, by offering herself to another person to be hired? Put this question-whether either the master or the servant could, after what happened, in this case have compelled the performance of the contract within the year? If we were now to lay down a rule, perhaps it would be better not to admit of any dispensation with the year's service, considering, that under the words of the statute, "continuing and abiding in the same service during the space of one whole year," is required to gain a settlement. Cases, however, have occurred too strong to be now overruled, that actual service is not necessary, where there is not a dissolution of the contract. But Lord Kenyon has clearly laid down the rule on that head, that, whether it is a dissolution of the contract or not, depends upon, whether either party could afterwards legally compel the performance of the contract. Whether the master had or had not a right to dismiss the servant on account of his misconduct, in this case, they both chose the magistrate as an arbitrator, and acquiesced in his decision; the master paying the wages for the year, and the servant applying to other persons to be hired. The cases which have been decided on this statute seem to have gone upon an erroneous notion, that it is a benefit to the pauper to acquire a settlement; as if she might not as well have her settlement at one place as another, and 8 Term Rep. 236. + 8 and 9 Will, S. c. 30. 1803. THEKING if she would not, in all events, be entitled to support, as one of the casual poor. After these decisions however, THE KIND Lord Kenyon's rule is the proper one, and we will not carry the doctrine any further. GROSE, J. LAWRENCE, J. and LE BLANC, J. concurred in the same opinion, and said "that to hold this not to be a dissolution of the contract would be to carry the doctrine of dispensation further than the decisions had hitherto gone. That the circumstances of the servant being discharged, and applying to a magistrate afterwards to settle the dispute between herself and master was clearly a dissolution of the contract. For in that he must be considered as an arbitrator, and she acquiesced in his decision. ORDER OF SESSIONS REVERSED. Inhabitants of The KING versus the Inhabitants of SUDBROOKĘ.— Same day. Service. APAUPER settles at S.is afterwards hired for a year in another Pauper. parish; he serves a part of the year, and then being too ill of a fever to do his work,his master pays him his whole year's wages Sickness. and he quits his service and goes to an hospital; held, this is a dissolution of the contract, and that no settlement is gained. THIS was an appeal to the general quarter sessions, The KING holden at the city of Lincoln, 16th July, against an Inhabitants of order of two justices for the removal of G. Peacock, and SUDBROOKS. Elizabeth his wife, and Elizabeth her daughter, aged two years, from the parish of St. Michael, in the city of Lincoln, to the parish of Sudbrooke, in the county of Lincoln, upon the following case: Geo. Peacock, the pauper, settled at Sudbrooke, about the beginning of May, 1796, hired himself to Mr. Fitzaugh, of Portland-place, by the month, at monthly versus 1803. The KING versus SUDBROOKE. wages, under which hiring he served near three months, when his master said he should want him for a continuance; they agreed for a year, at twelve guineas wages. The pauper said he considered the first contract at an end, although he did not then actually leave the service. He lived with Mr. Fitzhugh under the yearly hiring, till about the end of April, 1797, when being too ill of a fever to do his work, his master paid him his whole year's wages, and he left his master's service, and went down into the Lincoln Hospital, and never returned to the service of Mr. Fitzhugh. The case being removed into this court, TORKINGTON and D'EwES COKE, for the appellants, were called upon to distinguish it from the last, which they endeavoured to do at some length, by referring to the King v. Christchurch,* as an authority in point, and comparing the circumstances of that case with the present. "In that case Lord Mansfield said, that sickness, being the act of God, is not a cause for the master to turn away his servant and determine the contract. In this case therefore, the service must be considered as only interrupted, without dissolving the contract. The King v. Whittlebury, is very distinguishable from this case. For there the servant being taken ill within five days of the end of the year, while he was gone to a statute fair, to seek for another service for the next year, sent for his clothes and his wages, and the master deducted one shilling for the remainder of the year; this the servant accepted, and GROSE, J. considered that fact as conclusive of a consent to put an end to the contract. Indeed in all the cases where the contract is held to be determined, there has been a deduction out of the wages; but here the master pays the whole of the wages, which is strong evidence that he considers the sickness not as a ground of dissølv *Burr, Sett. Cases, 494. 2 Const. 507. + 6 Term. Rep. 464. ing the contract, but merely as a dispensation of the service. 1803. THE KING versus the Inhabitants HOLROYD and T. W. CARR, è contrà. The King v. Christ-church is very distinguishable from the present case of SUDBROOKE. There were no circumstances from which to infer a dissolution of the contract in that case. Maxey, the servant, was removed, on account of her fits, to one Mrs. Lemonier's, at the desire of her master; but if she would not receive her she was to return to her master's house. Nothing like dispensation is to be found in this case; for it is expressly stated, that the pauper left his master's service, and the magistrates properly considered this as a dissolution of the contract. And sickness is a reasonable cause for an agreement for such dissolution, as well as for a dispensation with the service. No animus revertendi appears, and but for the circumstance of the servant being ill, this exactly resembles the case of the King v. Castlechurch; and there the whole of the money was paid, which as Lee, J. says, might be only an act of benevolence in the master. Pawlett v. Burnham+ was also cited, and Sheen v. Godalming ‡. Lord ELLEN BOROUGH, C. J. "If ever there was a statute which required a strict construction, it certainly is this statute of the 8th and 9th W. 3. c. 30, for by adhering to the letter of it, there would have been great facility and convenience in determining the place of settlement of the pauper without any inconvenience to countervail it. The interest of the pauper is indeed by no means affected by this statute, and his benefit, which has been considered a reason for departing from the words of the statute, really affords no ground for it. He has only a benefit in being intitled to support, in virtue of a settlement, at some parish * 2 Burr. S. C. 68. † From a MSS. note by Mr. Ford, in Bott's Poor Laws, last edit. vol. ii. p. 307. Bott, last edition, vol. ii. page 310. VOL. III. N°. 14. I 1803. versus the Inhabitants or other; but the gaining of a new settlement is really THE KING nothing to him. Each case therefore resolves itself into a question between the two contending parishes, accordof SUDBROOKE, ing to strict law, and I should have thought it better never to have allowed of the doctrine of dispensation with the service. By some means that distinction has obtained in the cases, but it must always be understood with the qualification, that the parties in dispensing with the service contemplate the continuance of the contract. And that question is properly determined by Lord Kenyon to depend upon whether either party could, under all the circumstances, enforce the performance of the contract or not. In this case could either party have brought an action against the other; one for non-reception, the other for non-return into the service? No lawyer could have framed such an action, either against the master for not receiving the servant, or against the servant for not returning to his master; and then if the contract be destitute of all means of enforcing its performance, it must be considered as absolutely dissolved. As to the case of the King v. Christ-church, taking all the circumstances together, the parties did continue the contract. All that was done there to raise the question of dissolution was, that the master accommodated the servant with her cloathes, and made an advancement to her of the money. They indeed acted upon the despair of the servant being able to perform her service while she continued sick, and it turned out so, but the one or the other might perhaps have compelled the performance of the contract. Here are the words, that the servant went away and left the service. The King v. Christ-church turned upon that point, and it seems to warrant us upon the narrowest construction of the statute in saying that no settlement was gained by a service so discontinued. GROSE, J. observed that it was certainly difficult to to reconcile all the cases upon the subject, but taking the case according to the rule which was adopted by Lord Kenyon, the court could not, on the words of the |
