1792. The KING against GROSE, J.-Upon the first question, Whether or not this certificate were abandoned? I wish to be understood as not giving any opinion: it is a nice question; and before I determine on it, I should wish to have it argued; but in this case it is unDARLINGTON. necessary to consider it. With regard to the other question, The Inhabitants of Saturday, Service for 13 weeks dispensed with; though Whether it were the intention of the Legislature to include grandchildren in the certificate, I have no doubt. Without repeating all the reasons given by my Brethren, I will only say, that I am clearly of the same opinion with them; and on this short ground: the word "family" is used in the first part of the act; and therefore the operation of the certificate must be confined to the family of the person certificated: but grandchildren are not, properly speaking, of the family of the grandfather, but of his son; for when the son becomes the head of a new branch, and has children of his own, he ceases to be part of his father's family; and his children then form a part of his own family: and that this was the intention of the Legislature also appears from the word "children," in the latter part of the same section, where it is used as synonymous with "family." It has, however, been objected that, by this construction of the act, the grandchildren will be removed from their parents after the age of nurture: to which my answer is, That whenever such a removal is in contemplation, the father of those children may himself apply for another certificate for him, which will include his family. t Both orders quashed. The KING against The Inhabitants of EAST SHEFFORD. TWO justices removed John Mills, and Phoebe his wife, from East Shefford in the county of Berks, to Welford in the same county. The Sessions on appeal quashed the order, and stated the following case: the pauper was hired by one Stephen Birch of Welford, to serve him from Michaelmas 1790 to the Michaelmas following, at four guineas wages. He accordingly went to his master's on the day appointed, and continued there of his wages for eight weeks, when he ran away, and was absent for thirteen the pauper ran away without leave, was brought back by a justice's warrant. and consented to have a deduc tion made out that time. [6 T.R. 185. 4 East. 351.] weeks; during which time he worked with and received wages from another person. S. Birch then apprehended him by a warrant; but, in his way to a justice, asked him whether he would come back to his place or go to prison; and if he would come back, and go on in his place as he ought to do, he might. The The pauper said he would come back: and his master asked him then, what he should be willing to abate for the time he had been absent. The pauper said he thought one shilling a-week would not hurt him, which was agreed to; and the pauper returned into his service, and continued till the end of his year, when he received all his wages, except the thirteen shillings which had been agreed to be deducted. Milles and Blackstone in support of the order of Sessions.In order to establish a settlement by hiring and service, there must be an abiding in the service throughout the year. Now here the servant, by an improper act of his own, left his master's service for thirteen weeks; therefore that was a complete abandonment of the service. But it will be urged, that here was a dispensation of the service during that time by the master's receiving him again; but if the circumstances under which he was received be duly considered, they will be found to differ this case from others of the same kind which have been already determined. It may be observed, that in none of them was the absence so considerable as here; and in all, there is an implied forgiveness of the master for the absence; whereas here the master apprehended the servant, and was in the act of taking him before a justice for the purpose of punishment; and insisted upon it as a preliminary condition before he received him again, that so much of what he had before agreed to give him should be deducted. This therefore amounted in effect to a new contract. The master so far forgave him as to be willing to take him again upon the same terms as before, but he would not consider him as a servant during the time of his absence. In R. v. Nether Heyford (a), where a servant who had been absent for five weeks paid his mistress what he had earned during the absence, Lord Mansfield said, "The sum deducted was not "proportioned to the time of his absence; which would have "been the measure of deduction, if the contract had been con"sidered by them as totally dissolved and at an end, when he "went away from her. But the paying her the exact sum that ❝he had earned, shews that these five weeks' service was treat"ed by them as a part of the service done to her." So that his Lordship thought that the deduction of wages (properly so called) for the time of absence would have been a dissolution of the contract. In all the other cases of dispensation where some part of the wages was deducted in consequence of improper (4) Burr. S. C. 481. 1792. The KINO against The inhabitan S of EA T SHEFFORD. absence, 1792. The KING against The Inhabit ants of EAST SHEFFORD. absence, it was done at the end of the service, and the ac- Lane and Nares, contrà, were stopped. Lord KENYON, Ch. J.-If the old contract was dissolved when the servant absented himself, and a new one entered into on his return, I agree that the pauper could not gain a settlement by serving under it. And therefore the question is, whether the service after the pauper's return were performed under the old or a new contract? This is one of the many cases in which we have to regret that the words of the statute have been departed from: but as there is a series of adjudged cases, the principle of which applies to the present, it is too much for us to overturn them, though if the question were now to arise for the first time, perhaps we should make a different determination. It has been decided, that absence at the beginning, the middle, or the end, of the year, may be dispensed with, either with the consent of the master or for an excusable cause. In R. v. Hanbury (b) it was held that an absence for a fortnight did not defeat the settlement, though the wages were deducted for that time. Now it is impossible to distinguish this case from that in principle. It has been said, however, that the absence in that case was for a shorter period than in the present: but I wish that those who used such an argument would have drawn the line, and given us the ne plus ultra. Probably, if the first case after the statute had arisen upon an absence of thirteen weeks, the Court would have started at the question; but the Court have gone on, step by step, and having held that service for a BULLER, J. and GROSE, J. of the same opinion. 1792. The KING against The Inhabitants of EAST SHEFFORD. The KING against The Inhabitants of WHITTLesea. W. Saturday, June 23d. was gained by that the pauper was chosen and sworn in at a court-leet; and that it was an antiquity, and serviceable to the parish. office of great SARELL, his wife and son, were removed from Crow- A settlement land, in the parts of Holland in Lincolnshire, to Whittle- serving the of sea in Cambridgeshire: on appeal the order of justices was fice of hog-ringer for the parish; quashed, subject to the opinion of this Court on the following it being stated case: The pauper, W. Sarell, for 12 years and upwards prior to and immediately before his removal to Whittlesea resided in Crowland; before which time he was legally settled in Whittlesea. During his residence at Crowland he was legally chosen an hogringer for the parish of Crowland for one year, at a court-leet for the manor of Crowland; he was presented by the jury for the said office, and was sworn therein and paid four-pence for the oath; and he served such office two years on his own account. The duty of such office is to attend the open commons, to see that all hogs turned thereupon were rung; and such hogs as were not rung, it was the duty of his office to take to the pound, which he frequently did; and he always received one penny for impounding, and sixpence for ringing each hog. The appointment to such office is of great. antiquity, and serviceable to the inhabitants of the parish of Crowland. During the pauper's residence at Crowland there he rented a house, of one Allam, at the yearly rent of eight guineas, for which he was to pay, and did pay, all taxes and rates, &c. The case then set forth evidence respecting the pauper's paying the taxes, &c. but it did not satisfactorily appear whether or not he was rated. Bower and Dauncey, in support of the order of Sessions, were stopped by the Court. Erskine, 1792. The KING against The Inhabitants of Erskine, Chambre, and Balguy, contrà.-The place of an hogringer is not an office known to the common law; it is in its nature a private employment; and its duty is merely to take care that the hogs do not go on the commons unrung. It is WHITTLESEA. like the employment of a shepherd, whose duty it may be to take care of the sheep of many individuals in the parish. But even if it can be called an office, it is not a public office within the act of parliament (a). In all the cases in which a settlement has been gained by serving an office, there has been a public duty. annexed to it: whereas this is of a private nature. And though it is stated in the case to be an office of great antiquity in the parish, it must have originated in a bye-law, made at the courtleet by those individuals who had a right of common. In 1 Ro. Abr. 541. L. X. pl. 6. it is said, that a person cannot be amerced at a leet for surcharging a common; and the reason given is, because it concerns private interests, and not those of the public. So that for whatever length of time this office may have existed, as it merely concerns the interests of individuals, it is a private and not a public office. Lord KENYON, Ch. J.-It is stated in the case that this is an annual office of great antiquity, and serviceable to the parish at large; and that there is an oath of office. Therefore it seems to me that it is a public and annual office within the meaning of the act of parliament. Every employment in a parish is not indeed equal to express notice, though it be a matter of notoriety to the parish. It was once made a question whether shoeing the horses of the lord of the manor was not equal to notice; but it was determined not to be equivalent. If this person had been hog-ringer to certain individuals only, he would not thereby have gained a settlement: but he was not merely an officer of A., B., or C., but of all the inhabitants of the parish. It has been held that a tithingman (6), borsholder (c), an aletaster (d), or a hayward, may gain a settlement by serving either of those offices; and the latter, whose duty it is merely to take care of the fences within his district, cannot be distinguished from this case. (a) 3 W. 3. 6. 11. s. 6. Order of Sessions confirmed. (b) Stra. 444. The |