1823. The KING against DOLBY. A discretion is to be exercised, though the number of the persons out of whom the choice is to be made is of necessity limited to those who may happen to be at the assizes, or nisi prius. And it was well observed, on the part of the crown, that such a proceeding as was adopted by the coroners on this occasion, is much less open to the probability of an unfair trial, than the taking the tales from those who may happen to be present in court; inasmuch as either party may on a trial take measures to fill the court with his own friends and partizans. For these reasons we think the rule for a new trial ought to be discharged. Rule discharged. The pauper was hired to serve as a servant in husbandry from Michaelmas, 1821, to Michaelmas, 1822, at weekly wages; and if he and his master could not agree for The KING against ALTHORNE. (a) ON an appeal against an order of two justices, for the removal of John Wiggins and Elizabeth his wife, from the parish of Mayland to the parish of Althorne, both in the county of Essex, the sessions confirmed the order, subject to Court, upon the following case. the opinion of this "The pauper, who the harvest, he was to harvest for himself. Previously to the harvest, the master offered the pauper 5. for the harvest, which he accepted, and continued in the service the whole year: Held, that this was an exceptive, and not a conditional hiring, and that no settlement was gained. (a) In pursuance of the kings' warrant, issued ten days before the end of Trinity term, Bayley, Holroyd, and Best, Js. sat on the 23d of June, and the following days, until the 5th of July inclusive, in the room adjoining the court; and this and the several following cases were argued and determined. was was settled in Althorne, at Michaelmas, 1821, agreed with Mr. Croil, a farmer in the parish of Mayland, to live with him as his servant in husbandry from that Michaelmas till the Michaelmas following, at 10s. per week for the winter half year, and 11s. per week for the summer; and if he and his master could not agree for the harvest month, the pauper was to harvest for himself where he pleased." Previous to the harvest the master offered the pauper 5l. for the harvest, which he agreed to take; and accordingly continued in his master's service during the whole year." Jessopp, in support of the order of sessions, was stopped by the Court. Brodrick, contrà, contended, that this was a conditional and not an exceptive hiring, and that, as the pauper actually served for the whole year, he gained a settlement in Mayland. But per Curiam. The service would not have continued for the whole year, unless after the original hiring a new bargain had been made for the harvest month. There was not then any one hiring for a year; and therefore, although the pauper actually served for a year, it was not such a service as confers a settlement. Order confirmed. 1823. The KING against ALTHORNE. A pauper was by indenture id. The KING against The Inhabitants of BYKER. PON an appeal against an order of two justices UPON for the county of Durham, for the removal of Wilcolliery, at the liam Gray and Mary his wife, from the township of wages of 1s.10d. work, not ex- teen hours, and when that time was exceeded; forfeit 10s. 6d. for every act of for a good day's Haughton-le-Spring, in the said county of Durham, to indenture should be con- the jurisdiction servant from applying to disputes; and a covenant, that master about should wish to might stop the and retained by the indenture did covenant with J. P. that each of them would, in their several stations, dili gently perform and obey his orders and directions as any period not exceeding seven days, without paying any wages to the pauper, unless employed in other work: Held, that this was a conditional, and not an exceptive contract, and that the pauper gained a settlement by serving under it for the whole year. to to the manner of working the colliery, and work the colliery fairly and regularly, and as therein further expressed; or in default thereof, should forfeit and lose (to be retained out of their wages) the sum of 10s. 6d. for every act of disobedience; and also the sum of 2s. 6d. per day for lying idle upon each hewer, deputycraneman, on-setter, sinker, driver, or off-handman, to be deducted as aforesaid; and for every working day which they or any of them so hired and bound as aforesaid should absent themselves from their employment, or should neglect or refuse to fulfil an execute the whole of the business of an usual day's work, unless prevented by sickness or some other unavoidable cause, the defaulters should forfeit and lose (to be retained as aforesaid) the sum of 2s. 6d. for every such default, refusal, or neglect; all which said forfeitures and penalties should be deducted and retained out of the wages or earnings of each offender at the first pay-day next after the offence should be committed. And in the said indenture was contained a proviso, that the indenture should not, nor should any covenant or clause therein contained, be construed to extend to oust or exclude any justices of the peace from any jurisdiction or cognizance which the statute law of this kingdom hath given to such justices over masters and servants; but, on the contrary, that each of the said several parties thereto should be at full liberty, notwithstanding any thing therein contained, upon any breach of any of the before-mentioned covenants, to call for and require the aid and assistance of any justice or justices, to compel the performance, or punish any breach of such cove nants, as far as by law they could or might if the said indenture had not been made. And it was further cove 1823. The KING against The Inhabit ants of BYKER 1823. The KING against The Inhabit ants of BYKER. nanted and agreed, that in case the said J. P. should think it necessary, at or about Christmas, 1822, to repair, alter, or amend any engines or machines of or belonging to the said colliery, or to remove or prevent any obstructions or hindrance which might have happened to the same, or to do any other thing which he the said J. P., his executors, &c. should think needful to be done in the said colliery, or the working of the same, hat then it should be lawful for him to stop the workings at all or any of the pits of the colliery for any length of time not exceeding in the whole the space of seven days, without paying or allowing any wages or sums of money to any of the several parties who should thereby be prevented from doing their daily work, save aud except such of them as should be employed by him in any other work in and about the colliery, or otherwise, who should be paid or allowed reasonable wages for such his or their other work. This indenture was executed by James Potts and by William Gray, the pauper, together with a great number of other workmen, upon the day it bears date. William Gray was retained and hired by the said indenture as a driver. He was at that time under age, unmarried, and without any child. At the time when the indenture was executed William Gray was in the service of J. Potts, at the colliery, and he continued in his service as a driver for a whole year, from the 21st of January, 1810, till the 21st January, 1811, and resided during all that year in the township of Byker. There was no evidence, either that the pauper, William Gray, had or had not incurred any penalty or forfeiture during his year's service under thei ndenture, or that any deduction had or had not been inade from his wages. E. AL |