to be brought again into question, that if there be but a hiring for a year and a service for a year, however small a part of the latter be actually performed under the former, a settlement will be gained. As to the weekly service, if no exception of any one day were made, there was no pretence for saying that day was necessarily excluded, and in this case the servant occasionally doing work on a Sunday, shewed that he was considered under his controul on that day,, as well as the others. It cannot even be collected from circumstances, that Sunday was intended to be excluded. J. As to services being ejusdem generis, where Services is the line to be drawn? Would a postillion ejusdem ge need not be being made coachman, be a service ejus, ueris. In order to connect services in successive years, the servant must be unmarried at the Servant must commencement of the succeeding year; for ifbe in a capacity to he be married he is incapable of making amake a senew contract that shall give him a settlement, tract. though marriage would not have defeated a contract made previously.† So, if a servant being hired for a year, be rendered incapable of entering upon his service * 1 East's R. 656.-2 Bott. 272. Cald. Ca. 54. cond cou Places of performing service may at the time when it is to commence, by reason of sickness or otherwise, and the master therefore refuse to receive him, the serving under a new agreement for less than a year shall not be connected with the original hiring, for the purpose of giving a settlement.* Another doubt which has been raised, was with respect to the place where the service was be different. performed, it being assumed that the hiring was regular, and a year's service actually performed. But numberless decisions have been made to the effect that, The 40 days If a servant serve half a year in one parish, and then remove with his master, and serve the other half year in another parish, he gains a settlement where the last forty days are served. Thus, where the pauper covenanted with one H. J. then of H. to serve him in husbandry, for a year; and, in pursuance of the said contract, lived with him there for three quarters of a year, and then went with his said master intó the parish of C, where he lived with, and served him, the rest of the year.The Court were clearly of opinion, that the pauper had hereby gained a settlement in C.† And the 40 days need not be 40 days succesneed not be sively; for if the residence of a servant be al successive. * Cald. Ca. 238. ternately in two parishes, but he does not continue successively for forty days in either, but more than forty days interruptedly in both, he shall gain a settlement in that parish in which he last served. Thus, where a servant was hired for a year in the parish of Fetcham, and after 40 days serving married, and from that time slept with his wife every night for the remainder of the year in the parish of Great Bockham, except the last, when he slept at his master's in the parish of Fetcham.-It was held, that his settlement was in Fetcham. 4 But if a servant hired for a year marry in the middle of the year, and then agree to serve his master, in a different capacity, for a year from that time, at different wages, and to live out of his master's family, but at another farm belonging to his master in the same parish, this is a dissolution of the original contract, and the servant being married at the time of entering into the second, does not by his service gain a settlement; for, as was observed by one of the judges, "this is not a prolongation of the origi nal contract, but entirely a new one to commence at the time when such new one was made."t But if there be a hiring for a year, and the service be continued beyond the, year, without * Cald. Ca. 290. T any new agreement, the servant shall be settled in the parish where he resides with his master the last 40 days. And if the master remove into another parish, and before the servant has resided there 40 days, his time of service expires, the service under a new hiring for another year, shall be considered as a continuation of the former service, and connected with it, so as to entitle the servant to a settlement in that parish to which his master removed, although he may not have served for a whole year under such second hiring.* If the servant having performed part of his service with the original master, be permitted by such master to serve out the remainder with another person, this shall be a good service to gain a settlement; for, as was said by the Service by Court, "If a master lend his servant to a neighassignment. bour for a week, or any longer time, and he go accordingly, and do such work as his neighbour sets him about; yet all this while he is in the first master's service, and may reasonably be said to be doing his business; and here being no new contract, it is carrying on the service of the first master; and the second master paying the last half-year's wages, does not alter the case; for the contract not being *Cald. Ca. 65. dissolved, he might have brought an action against the first master."* So a service with the executor of a master With an exfor the remainder of a year, will be sufficient to ecu tor. gain a settlement.f contrivance And an absence created by the default, or Fraudulent fraudulent contrivance, of the master, shall to defeat a not prevent the servant's gaining a settle. settlement. ment. So if a servant fall sick, absence on that ac- Absence ob count will not prevent the gaining of a settle ment. And a servant who is rendered incapable of performing his service, by being deprived of his reason forty days before the end of the year, and who is taken to his father's house, and resides there during the remainder of the year, does not, by this casual residence, gain a settlement in the parish where his father lives, but his settlement is in his master's parish.§ account of sickness. But if the absence be occasioned by the de- Wilful ab fault of the servant, it will prevent the settle sence. ment--Thus, if a person hire a female servant, and before the year's end she is got with child, and that child is likely to be born a bastard, this is good cause to discharge her of her service; and if the master discharge her for this * 1-Str. 90. ↑ Burr. S. C. 179. § 5 Term. R. 657. |