1825. The KING v. The INHABITANTS of and there is nothing to shew that this was a dispensation of that portion of the service. But at all events it was competent for the parties to rescind the contract, and enter into a new bargain if they thought proper. This was effected by what took place afterwards; for the pauper BOTTESFORD. then consented that the hiring should be for 51 weeks, and took one shilling to bind the bargain. There is nothing like fraud in this part of the transaction, which, if there was, ought to have been found by the sessions. It is, therefore, perfectly clear, in either view of the case, that there was no hiring, or service for a year to confer a settlement. They cited Rex v. Market Bosworth (a), Rex v. Winton (b), Rex v. Sulgrave (c), Rex v. Apethorpe (d), Rex v. Denham (e). S. M. Phillipps and Hildyard, contrà. In this case the sessions have not come to a conclusion upon conflicting evidence, of which they would undoubtedly be the most competent judges, but have decided upon the testimony of the single witness examined; and if they have drawn an erroneous conclusion in point of law from the facts deposed to, it is the province of this Court to set their decision right. It is admitted on the other side, that there was originally a general hiring for a year, and consequently if there was a service under it, a settlement was gained. If there was a general hiring, it must be taken to have commenced at Martinmas. Now though the service did not actually commence until a week afterwards, yet it must be taken, from the facts stated in the case, that there was a dispensation of the first week. The service was not to commence until a week after Martinmas, which was the regular time for husbandry (a) Ante, Vol. II. 217. (b) 3.B. & A. 298. (c) 2 T. R. 376. (e) 1 M. & S. 221. (d) Ante, Vol. II. 313. 1825. The KING 0. The of BOTTESFORD. servants to enter their places. It is a well known practice in hiring husbandry servants, to allow them the first week to go and see their friends. This is indeed a general custom, and hence the provision in the contract, INHABITANTS that the service was not to commence until a week after Martinmas. Receiving the pauper afterwards by the master upon the footing of this contract shews decisively that this was a dispensation. This is simply the case of a general hiring for a year, the master giving the servant the first week for himself. It was not competent for the master afterwards to rescind the contract, and defeat the settlement, being legal in its inception. The court will treat the second contract as a fraud upon the settlement, and hold that the sessions have come to a wrong conclusion. They cited Rer v. Wintersett (a), Rex v. Fillongley (b), Rex v. Grantham (c), and Rex v. Adson (d). ABBOTT, C. J.-I think the sessions came to the right conclusion. I agree that there was originally a contract which operated in point of law as a hiring for a year, but I think that the service under it could not be considered as commencing until a week after Martinmas. It is true the case states that the pauper was hired about three weeks before, but he was not to go into the service until a week afterwards. That fact appears to me to be decisive that the service was not to commence until a week after Martinmas. Certainly it was not to commence on the day the contract was made, for that was entered into three weeks before. If then it was a hiring for a year, the service to commence the week after Martinmas, it is clear that there has not been a service for a year under that hiring. Did then the master dispense with the services of the pauper for that week in the year, or was (a) 2 Bott, 443. (b) 1 B. & A. 319. (c) 3 T. R. 754. (d) 5 T. R. 98. 1825. The KING v. The INHABITANTS of the contract between the parties rescinded? The case states, that on the same day when the servant arrived at his master's house, the latter said to him, "It is not the custom to hire servants in this parish for more than 51 weeks, which I forgot to mention to you, and therefore, BOTTESFORD. if you have no objection, I must hire you afresh for 51 weeks, and give you another shilling for earnest." To this the servant makes no objection, but takes the shilling by way of earnest. If I were to draw my own conclusion from these facts, I should construe that as a dissolution of the original contract, and the substitution of another. It is said that this was a fraud. I own I have always had great difficulty in finding out upon whom the supposed fraud is committed, in cases of this nature. But if this case is to be treated as a fraud, then it was for the sessions to find it out, and unless they do so, this court cannot, upon authorities, hold it to be a fraud. That is entirely a question of fact; but the sessions have not found it to be a fraud. I must therefore consider this as a dissolution of the original contract, and the substitution of a new one in the place of it, and not a dispensation of the week's service: I do not, however, say that, if the sessions had drawn a contrary conclusion, it would not have been as satisfactory to my mind as that which they have actually drawn. BAYLEY, J.-I think this was properly a point for the decision of the sessions, and I should be glad if the sessions would understand that it is their duty to decide questions of fact, and not send them up to this Court for decision; the expense brought upon parishes in the discussion of such cases is enormous, and tends to increase parish rates to a mischievous extent. A general hiring may be a hiring for a year, or it may be for less than a year. If there be a general known custom in a parish to hire servants for less than a year, the general hiring would be for the customary period, and not for a whole year. Whether such a custom exists in this parish, is not communicated to us one way or the other. It was a fact which the sessions might have very easily ascertained, but the case is silent upon the subject. I agree that there may be a dispensation, either at the commencement, in the middle, or at the conclusion of the year; but whether there is a dispensation or not, is a question of fact for the sessions to decide. If there had been a hiring here for a year, to commence at Martinmas, and the contract, had not been dissolved by the express consent of both parties, then the sessions might have drawn a conclusion different from what they have drawn. Suppose this to have been originally a hiring for a year; still, when the servant came home, it was competent for him and his master, by mutual consent, to limit the duration of the service, and put an end to the first contract. But still it was for the sessions to decide, as a question of fact, whether the contract had been dissolved by mutual consent. So, if there was fraud in the case, that was for their decision, and not for the decision of this Court, who have no means of determining the question affirmatively or negatively. Upon the ground, therefore, that in this case the sessions was the proper tribunal for the decision of the question, and not being able to see, from the materials which have been laid before the Court, that they have come to a wrong conclusion, I think their order must be confirmed. My own judgment is, that the sessions have drawn the right conclusion from the facts stated. HOLROYD, J.-I think it cannot be taken, from the manner in which the case is stated, that this was originally a hiring from Martinmas, although it was most probably 1825. The KING v. The INHABITANTS of BOTTESFORD. 1825. The KING v. The INHABITANTS of BOTTESFORD. the intention of the parties that it should be so considered. |