ADJUDGED CASES In the COURT OF KING'S BENCH, MICHAELMAS TERM, 31 GEO. III. REX V, the Inhabitants of CLAY HYDON. Two Juftices having removed William Taylor from Clayhydon to Ufcolm, the Seffions quashed the Order, and stated the following CA S E. The pauper, being fettled at Usculm by hiring and service, made a bargain with W. Hodges, in Dunkefwell, for a year, at the wages of £2. 15s. Od. and ferved till nine days before the expiration of the year, when he went away on a Sunday morning, in order to get another place when his year fhould be up, without afking any leave of, or mentioning it to, his master; he returned on the Tuesday following about fix o'clock in the morning, when he asked his master what work he should go about; the mafter told him he might go and ferve the master he had worked for the day before. He faw his mafter about an hour afterwards, who then paid him his wages up to that time only. No converfation paffed; he then went away, and did not afterwards return: he wifbed to have flayed out the year, but his mafter would not let him. LORD KENYON, Ch. J.-It is now too late to say that a conftructive fervice, pursuant to a hiring for a year, will not confer a fettlement on the fervant: though I very much doubt whether a greater certainty on this fubje&t would not have been attained by attending strictly to the words of the A&t of Parliament: however, in order to preferve an uniformity of decifions, we must adopt the conftruction which has fo frequently been put upon it. But I do not know that it has ever been decided that a fettlement was obtained, unlefs by conftruction the relation between mafter and fervant continued during the whole year. The cafes of Rex v. Iflip, and Rex v. Maddington, which have been relied on, do not govern the prefent. In the former, the fervant did not return until after the expiration of the year; and the facts of that cafe left the question open whether or not the relation between the parties fubfifted during the whole year: the Court there thought that the mafter improperly refufed his confent, and that though the fervant were not in the actual difcharge of his duty in his mafter's houfe, yet, as he was liable to be called into the rafter's fervice during the remainder of the year, that he was conftructively in that fervice down to the end of the year. But the prefent cafe differs from that, becaufe during the continuance of the year a further act was done; when the fervant returned after his abfence, the mafter not only found fault with him, but refused to take him again into his fervice: it is true that the fervant withed to continue, but both parties did that which put an end to the contract; the one paid, and the other received the wages. After that period, the fervant was no longer fubject to the controul of the matter. In Rex v. Iflip, the fervant was under the master's control during the whole year; he was liable to be called into the mafter's fervice whenever the mafter thought proper: but here the relation between the mafter and fervant was refcinded before the end of the year by the act of both parties; then it is impoffible to say that the pauper was conftructively in the ser vice after that time. So in the cafe of Rex v. Maddington, though the fervant left the fervice three weeks before the end of the year, and went to his friend, because he was not able to perform his fervice, yet there was no act done dure ing the year to put an end to the contract: afterwards indeed when the master paid the fervant his wages, he deducted a part of them; but he could not by an ac ex poft facto deprive the fervant of the benefit to which he was before entitled. But the cafe of Rex v. Gresham is extremely like the prefent; there the Court held that, by the act of accepting the wages, the fervant agreed to put an end to the contract. I am therefore of opinion that there could be no conftructive service in this cafe, when the parties themselves, by mutual confent, put an end to the relation of mafter and fervant within the year. ASHHURST, J.-It is much to be lamented that the dif tinations in thefe kind of cafes have been fo nice that it is difficult to difcover the principles on which they have been decided. The question then is, What is the principle on which they have turned? I think that will be beft fupported in this cafe by determining that the fervice did not continue during the whole year. It is not now to be contended that an actual fervice is neceffary, it must be admitted that a conftructive one is fufficient. But this cafe is distinguishable from that of Rex v. Iflip; for here was a diffolution of the contract before the end of the year; on the fervant's return, the mafter infifted on discharging him, and offered his wages; and though the fervant wifhed to continue in the fervice, yet he at length confented to put an end to the contract, by taking up thofe wages. The acceptance of wages was a fignifying of the confent on his part. And this brings it within the cafe of Rex v. Grefbam. GROSE, J.-Though there has been fome contrariety in the cafes as to what fhall be faid to be a hiring for a year, yet it is clearly fettled that, if during the year there be a diffolution of the contract, no fettlement can be gained. Now on the facts of this cafe, it is clear that the contract was diffolved before the end of the year. The mafter refused to receive the pauper into his fervice when he returned, to which the latter made no objection, but received his wages up to that day only. It is indeed stated afterwards, that the fervant wifbed to have ferved out the remainder of the year, but that his master would not let him; yet it is clear that at the time when the wages were paid, both parties confented to put an end to the contract; for it is stated that no conversation paffed at that time; and though the fervant may have wished to stay till the end of the year, yet he did not communicate that wish to his mafter. And the other fact ftated, namely, that he accepted a fum fhort of the whole year's wages, fhews that it was understood by both that they intended to diffolve the contract. This cafe is diftinguishable from thofe of Rex v. Iflip, and Rex, v Maddington, for the reafons already given; and it is like that of Rex v. Gresham, Order of Seffions quashed... JOHN JOHNSON . BANN. The plaintiff won 51. of the defendant in a wager at a horfe-tace at Chester, where the stake for which the horses ran was less than 50% which the defendant refusing to pay, this action was brought. The question was, Whether (notwithstanding horfe-races for fmall fums are prohibited by 13 Geo. II. cap. 19), this was not a legal wager according to the Cafe of Good v. El liot, (vide our Mag. for October last, p. 108). LORD KENYON.It is fufficient, without adverting to cafes, to say that the horse-race itfelf is prohibited by ftatute; and as the race which is the fubject of the wager is il legal, fo alfo is the wager. Motion to fet afide the non-fuit refused. REX v. The Inhabitants of YARPOLE. Upon an appeal to the Seffions at Hereford against an order of removal by two Justices, the order was confirmed by eight Juftices against feven; but it appearing that three of the confirming Juftices were rated in the parish from whence the pauper was removed, they were objected to at the Seffions, but still perfifted in voting. It was now moved that the rule might be made abfolute, upon the ground that Juftices rated in either parish cannot vote upon an appeal LORD KENYON, Ch. J.-We cannot now make the rule abfolute, as no judgment for quafhing the original order was entered on the rolls of the Seffions. If the Court of Seffions had quafbed, inftead of confirming, the original order, there could have been no difficulty now. But the parties cannot come here per faltum; and, as no judgment for quafhing the order of Juftices was given at the Seffions, we, as a Court of Error, cannot do what the Court below fhould have done. We must make that part of the rule abfolute, which has for its obje&t the quashing of the order of Seffions, and direct the Juftices below to enter a continuance to the next Seffions, when they may decide it. VOL. II. B b HOBSON HOBSON V. TODD. है 'This was an action tried at the Durham affizes against the defendant, for having surcharged the common; but the plaintiff was nonfuited, it being proved that he also had furcharged to a larger amount. Upon an application now for a new trial,, the fame was granted, the Court delivering their opinion as follows. BULLER, J.-It does not feem to me that the plaintiff has fuftained any very ferious injury: but the question here is, Whether or not the plaintiff be entitled to a verdict? The question relating to the damages is for the confideration of the Jury. It has been faid by one of the counsel, that the plaintiff must prove a ferious injury, relying on the words of Mr. J. Blackflone in the cafe cited. But the expreffon used by that Judge does not warrant fuch a conftruction; for it must be taken with a reference to the case then before him, in which the plaintiff did not appear to have been much injured, for it did not appear that he was possessed of a fingle beast which he could have put on the common. I lay therefore that part of the argument out of the question; for a fmall injury is fo indefinite in its nature, that it affords no rule by which the mind can be guided. The only question then is, Whether any injury has been done by the defendant to the plaintiff? If the defendant had turned the fupernumerary cattle on the common by the licence of the lord, I admit that the plaintiff could not have maintained this action, because the defendant would not have been a wrongdoer but here is a wrong-doer, and the plaintiff is entitled to an action without proving any fpecific damage. This depends on the form of the declaration, and on what has been confidered as proof of it. The allegation is, that the plaintiff could not by reafon of the defendant's at enjoy his common in fo ample and beneficial a manner as he used to do now, if the defendant's fupernumerary cattle had not been on the common, the plaintiff's cattle might have eaten every blade of grafs which was confumed by the defendant's; that therefore is an injury to the plaintiff. There is alfo another ground on which this action may be fupported, which is, that the right has been injured and if a commoner cannot bring fuch an action as this, because his cattle : had |