Adjudged Cafes in the Court of KING'S-BENCH, in the laft Term, 1790.

The KING v. the Inhabitants of LEIGH.

The overfeers of Leigh in Staffordshire rated to the poor an inhabitant of the township of Field within the fame parish, which township had for many years maintained its own poor, independent of the reft of the parish. This inhabitant therefore appealed against the rate, and the Seffions quafhed the rate, fubject to the opinion of this Court.

CASE.

The parish of Leigh is five miles in length, and four and a half in breadth. It confifts of eight townships. The township of Field (one of the eight) is within the faid parish, and confifts of fix farm-houses, with farms thereunto belonging, containing 700 acres of land, and 3 or 4 fmall houses. The town of Field for 60 or 70 years (and before for any thing that appears to the contrary) has had separate overfeers, and feparately maintained its own poor. Two overfeers have been appointed for the township of Field, and two for the reft of the parish of Leigh. A conftable has regularly been appointed for the township of Field, and another for the reft of the parish. In 1764 a pauper was removed by an order of two juftices from the parish of Leigh to the township of Field within the faid parish, from which it does not appear that there was any appeal.

LORD KENYON, Ch. J. I cannot help regretting that this queftion fhould ever have been started, because it tends to disturb the quiet of this place where the poor have been fo long provided for in a particular way. It is of fome importance to one's own mind, though it cannot indeed affect the decifion of this cafe, that the gentlemen of this county have confidered this as an attempt which ought not to have been made, as being an innovation on the old fettled mode of maintaining the poor in this diftrict. There is no doubt but that this Cafe is within the 13 & 14 Car. II. c. 12. In fome of the cafes it has been made a quellion whether the parti cular district were or were not a vill or township: but no

fuch

fuch difficulty occurs in this Cafe, because it is stated as a fact that Field is a township. Then the question is, whether at the time of paffing the ftatute of Car. II. this district was in a fituation to receive the benefit of the 43 Eliz. c. 2.? for if the parish were properly divided at that time, nothing which has happened fince will induce us to make any innovations In the Cafes cited, Peart v. Weftgarth, (3 Burroughs, 1610.), and R. v. The Juftices of Middlefex, (Bott. 17. 21), it was stated that, from the time of Elizabeth down to the reign of George the First, thofe parishes had in fact reaped the benefit of the statute of Elizabeth: whereas here for 60 or 70 years, and perhaps for a longer period for any thing that appears to the contrary, this parish has been fubdivided. and has not had the benefit of that ftatute. This therefore is like the Cafe of The King v. Sir Watts Horton. (1 Term Rep. 374) It has been doubted by country gentlemen whether the poor are better maintained in large or small diftri&ts, though the former has been judicially faid in this Court. In fmall divifions the officers are more attentive to their duty, and in the part of the country with which I am acquainted the poor are better provided for in the fmall diftri&ts. Therefore as the ufage in this Cafe coincides with our ideas on the policy, and as we are warranted by the adjudged Cafes on this point, we think it highly proper that the divifion of this parish, which has fubfifted fo long, fhould continue; and consequently that the order of Seffions fhould be affirmed.

ASHHURST, J. Wherever it appears that for any length of time the parish has had the benefit of the 43 of Elizabeth, it must be fhewn that from the increase of population, or fome other caufe, it is impoffible that they can continue to reap the benefit of that ftatute. But that is not the cafe here: and nothing can be stronger to fhew that this parish cannot have the benefit of 43d of Elizabeth, than that in fact they have not had it as far back as any memory goes.

BULLER, J. Before a parish can be fub-divided into fmaller diftricts for the maintenance of their poor, it must appear that they cannot have the benefit of the 43d of Eliz. But it is material to confider the meaning of the. phrafe, that a parish cannot reap the benefit of that statute. It does not mean that it is abfolutely impoffible for them to inaintain their own poor, as a parish, for that would not be the cafe even if the parish were 100 miles in circumference, but that it is inconvenient for them fo to do. Now in judging on a queftion of convenience there can be no doubt on the facts of this Cafe; for it is flated that for 60 or 70 years past,

and

and perhaps for all preceding times, this parish have not maintained their own poor jointly. And the strongest instance of their having been fub-divided for a long period is the circumftance of the parish at large having removed a pauper into this particular diftri&t, as a place liable to maintain its own poor feparately. I entirely agree with my Lord Ch. J. that greater care is taken of the poor in fmall than in large diftri&s. And if in any Cafe we were to find that it was formerly inconvenient to the parish at large to maintain their own poor jointly, though it were convenient for them to do fo now, we would not affift them in overturning the old practice; for that would operate as a difcouragement to the efforts of individuals to reduce the poor rates, which have fucceeded in many fmall diftricts. I even go further; for though it fhall appear that a parish had enjoyed the benefit of the 43 Eliz., yet if they could not now conveniently maintain their own poor jointly, we would permit them to divide themselves, provided there be fuch legal divifions in the parish as are capable of fupporting their own poor feparately under the provifions of the ftatute of Charles the Second.

GROSE, J. In determining this queftion, I fhall not proceed on any fpeculation of my own; for the Act of Parliament itself has fuppofed that the largenefs of a parish may be a good reason for dividing it. Though if I were to give my own opinion of the policy of the law, I fhould not hefitate to fay, that from my own experience I have found that the poor are better provided for in fmall than in large diftrias. The question here is, whether it does not appear that the parish cannot have the benefit of the ftatute of Eliz.? and I am clearly of an opinion, that on the fe facts they cannot. For, in the first place, it does not appear that the parish have ever as a parish maintained their own poor. And, in the next place, it is ftated, that in 1764, a pauper was actually removed from the parish at large to this very township, which is an admiffion on their part that they had no right to call on this diftri& to contribute to the general poor rate of the parish.

Per curiam,

Order of Seffions affirmed.

The

The KING v. the Inhabitants of Grantham.

CASE.

William Read was hired a fortnight after Martinmas 1784, by N. Leadenham of Allington, farmer, to ferve him for a year, at the wages of 61. 10s., and entered upon his fervice, and continued therein about fix weeks, when, with his master's permiffion, he went to affift his father who then was ill in the faid parish of Allington, and with whom he stayed thirteen weeks; at the expiration of which time he returned, in confequence of a warrant having been obtained against him at the inftance of his master, into his fervice under the original contract, and continued with his faid mafter until Sunday evening, three days before the expiration of the year; when his master came home in liquor, abufed the pauper, threw him down, and afterwards turned him out of doors. The pauper flept at his father's that night in Allington, and the next morning his master would have had him return to his fervice, and stay the remainder of the year; but the pauper refufed going into his mafter's fervice again, and threatened that, unless he paid him the whole of his wages, he would' complain of the ill-ufage he had received to a magistrate. The mafter then agreed to pay him his full year's wages, deducting for the thirteen weeks he was with his father in his illness, which the pauper took, and then left his master's Service contrary to the express request of his master.

Two Juftices having removed the faid William Read and his family out of the parish of Allington, the Seffions upon appeal confirmed the order, fubject to the opinion of this Court.

LORD KENYON, Ch. J. The circumftance ftated in the Cafe, that this tranfaction happened only three days before the end of the year, might have led us at first to suppose that there was fome fraud intended on the part of the master: but none is ftated. It has been faid, and rightly fo, that an actual service is not neceffary, for that a conftructive service is fufficient: but the queftion here is, whether we can fay that there was a conftructive service for the whole year; and whether the relation of mafter and fervant fubfifted during that me If the abfence be for a reafonable caufe, it is imma

terial whether that abfence be at the beginning, the middle, or the end, of the year. And it has been argued that this was an abfence for a reasonable caufe, on account of the ill treatment of the mafter. But here there was no animus revertendi, which distinguishes the prefent from the clafs of Cafes alluded to (R. v. Gresham and R. v. Christchurch). When the fervant was ill-ufed, though he could not have left the service without his master's confent, or without applying to a magiftrate to be discharged on that account, yet the mafter did confent to the fervant's leaving him, and both parties agreed to put an end to the contract. If the master had afterwards complained of the pauper's not ferving him for those three days, the latter might have anfwered by saying that the contract was diffolved. And if its being abfolutely put an end to only three days before the expiration of the year will not defeat the fettlement, what line can be drawn with refpect to the time of the fervice which is necessary to give a fettlement? if one day, or three days, may be difpenfed with, any other time may be equally fo. In fome cafes indeed, where it has been equivocal what the tranfaction really was, and the fervant has paufed and confidered whether he would abfolutely quit the fervice or not, other circumstances have been admitted to explain the abfence: but here was no fufpenfe, no locus penitentia; for both the mafter and the fervant agreed to put an end to the fervice. The mafter wished to turn away the fervant, though unwarrantably; and though the latter was not bound by fuch ill treatment, be afterwards confented to diffolve the contract.

ASHHURST, J. If there be any interruption in the service, however small, it will prevent the fervant gaining a settlement. And though at: abfence does not neceffarily defeat a fettlement, yet, to prevent that, it must be either with the master's confent, or be fuch as the law will warrant. But this was neither; for both the master and fervant agreed to put an end to the fervice: and though the former at length confented to give the latter the whole wages, that was not intended to operate as a difpenfation with the remainder of the fervice, but as a redemption of his credit.