1794. DOE against the statute of Anne (a) to compel infant minors to convey, when they have the bare legal estate. Besides if the defendant went into a court of equity; from the time when the mortgage was made in 1741 to the present moment, there is not a single cir- PARRATT. cumstance to shew that the parties considered the interest of the mortgagor as existing. In the case cited from Burrow, the estate was sold subject to the equity of redemption: but this estate was given absolutely, and it has been considered as irredeemable by all the parties through whose hands it has passed. If the mortgagee conveys, subject to the equity of redemption, that right may be kept alive for any indefinite length of time as far as I know the Court of Chancery has determined that it may be preserved for 50 years. But if twenty years have passed without any redemption, in whom does the legal estate vest? In the mortgagee; and it would escheat to the lord for want of the heirs of that person. Therefore, neither in law or in equity, can the defendant's title be supported; though I wish to disavow mixing considerations of equity in the decision of a legal right. GROSE, J.-The law respecting a devise to husband and wife is laid down in 1 Instit. as Lord Kenyon has stated it. As to the case in Burrow, it differs from the present in this respect: there Lord Mansfield observed that the devisor considered it as part of his personal estate; whereas, here the devisor clearly considered that she was disposing of her real estate. LAWRENCE, J.-I concur in the opinion delivered by the Court. And there is a subsequent clause in the will, shewing the intention of the testatrix; she thereby gave her ready money, securities for money, and personal estate, to the husband alone. She therefore distinguished between the estate in question, which she considered as her real estate, and her personalty. (a) 7 Ann, c. 19. Postea to the plaintiff. HAVILAND against Cook. Toa Friday, June 27th. If a defend ant rely on a certificate under a second com mission of bankrupt against him, under which he has not paid 15s. in the pound, the plaintiff, in order to deprive him of the benefit of it, may produce the proceedings under the former commission, and prove that he submitted to it, without proving the trading, the act of bankruptcy, and the ●ther facts which are necessary to support the commission as against third persons. mitted, HAVILAND against Cook. 1794. mitted, and the defendant produced his certificate. In reply, the plaintiff's counsel stated that the defendant had been a bankrupt under a former commission, and had not paid 15s. in the pound under the latter («); and the question was, Whether in such a case it was incumbent on the plaintiff to prove the trading, the act of bankruptcy, and every other fact necessary to support the first commission? or, Whether it were not sufficient to produce the commission and the proceedings under it, and to prove that the bankrupt himself submitted to it? The learned judge was of opinion on the authority of Dalbiac v. Teasdale, which happened some years ago in the Common Pleas, that the latter was sufficient proof in such an action as the present; and on this proof the plaintiff obtained a verdict; but liberty was given to the defendant to move to have that verdict set aside, and a verdict entered for him, if the judge's opinion could not be supported. Wigley was now to have shewn cause against a rule which had been obtained, calling on the plaintiff to shew cause why the verdict should not be altered: but the Court desired Dauncey to support his rule; who argued, that in general the proof given at the trial was not sufficient to establish a bankruptcy, and that there seemed to be no reason to distinguish this from the common case. Lord KENYON, Ch. J.-As the bankrupt surrendered under the first commission, and submitted to it throughout, the evidence given at the trial was sufficient as against him; though as against other persons, proof of all the facts to support the commission must be given. Even in the case of a fraudulent bankruptcy, as the person himself submitted to it, yet as he concealed part of his effects, he suffered a capital punishment (b). Per Curiam, Rule discharged. (a) Vide 5 Geo. 2. c. 30. s. 9. (3) Vide R. v. Perrot, 2 Burr. 1122, 1715. 1794. The KING against The Inhabitants of SUTTON. H. BOARDMAN, the pauper, resided with his father Sa'urday, Ayearly servant, be ed of his the end of the year, days before was taken home by his father who and who re ceived the wages for the whole year; held that the ser settled in the master's parish though he as part of his family upon part of a tenement of about ing depriv 301. per annum, in Bold in the county of Lancaster, and was reason 40 hired for a year to Mr. Beckett of Sutton in the county of Chester, which he served in Sutton, and then returned to his father in Bold at Christmas. At Candlemas following he attained the age of 21, and having remained with his father from the time of lived in anhis leaving Beckett's service, he continued with him as part of otherparish, his family, being employed in husbandry without any agreement as to service until Christmas afterwards, his father allowing him what he thought fit. He was then hired for a year by Mr. Kerfoot in Great Sankey to serve in husbandry at the wages of vant was 71. 10s., and 5s. more in case his master approved of his service; he continued in that service until he was unfortunately, by the visitation of God, deprived of his reason about the month of continued October or beginning of November next following, at which time his father became acquainted with his situation, and very soon afterwards fetched him away, taking him home to Bold, and in two or three weeks afterwards came and received the wages of 71. 10s., but not the 5s.; and the father afterwards kept him at home as part of his family for about ten years in Bold, where . M. the father lately died, the son during all that time, as well as since, continuing in the same unfortunate situation. The Court of Quarter Sessions on an appeal, being of opinion that the pauper was settled in Sutton, confirmed an order of two justices, by which he was removed from Bold to Sutton, and they stated the above case for the opinion of this Court. Law and Scarlett, in support of the order, argued that the pauper did not gain a settlement in Great Sankey, by his service with Kerfoot. In order to acquire a settlement by hiring and service, the statute 8 & 9 W. 3. c. 30. requires that the servant "shall continue and abide in the same service during the space "of one whole year." And though in the construction on that act, it has been held that actual service during the whole time is not necessary, but that there may be a virtual service, this does not come within any of those cases, which may be ranged VOL. V. 2 U in in his fa ther's house of the year. 464.] hey 1794. The KING against The Inhabi tants of in three classes. 1st, Where the service has been obstructed or attempted to be so by the wrongful act of the master; 2dly, Where the master has dispensed with part of the service; or, 3dly, Where the service has been abridged by some temporary incapacity of the servant to discharge it. The first of these is totally out of the question here. Nor does this case come within the second class; because dispensation is an act of the will, and pre-supposes the power of compelling the performance of that which is dispensed with: whereas here the master could not have enforced the remainder of the service, the servant being physi cally incapacitated to perform it. Neither is this within the third class of cases; for in those the service was only suspended for a time. In R. v. Christchurch (a) the absence was only for seventeen days; and there the master would have received the servant again into his service if she had recovered. In R. v. Islip (b), the servant was only ill for six days, and he continued in the master's house during the time of the illness. And in R. v. Sharrington (c) the absence of the servant for the purpose of having his leg cured, which had been broken, was held to be a reasonable cause of absence in the servant, though the master did not consent to it: it is to be observed, however, of that case, that it was not argued. But this is distinguishable from all the former cases in this respect, that the servant not only resided out of the master's house for the two last months of the year, and after the wages had been paid, but he was taken out of his master's service before the expiration of the year by his father who was then bound by the statute of Elizabeth to maintain him. The servant cannot then be considered as having been virtually in the service of his master for the remainder of the year, since the relation of master and servant did not exist after the father had received the wages. With respect to the wages too, it is to be remarked that they were not all paid; the sum of 5s. was deducted: and even if the whole year's wages had been paid, the servant was entitled to maintenance from the master during the remainder of the year, for which the latter made no satisfaction. Therefore whether this case be considered on the words of the statute of Will. 3. or on the authority of the decided cases, the pauper gained no settlement in Great Sankey; by determining that he did not, the Court will (a) Burr. S. C. 491. (b) 1 Str. 423. (c) Const's edit. of Bott, vol. 2. 525. not not over-rule any of the authorities; whereas a contrary decision will carry the doctrine of constructive service, which perhaps it was impolitic to introduce at, first, and which has already been too much extended, farther than any case has yet carried it. Leycester and Lawes, who were to have argued on the other side, were stopped by the Court. 1794. The KING against The Inhabitants of SUTTON. Lord KENYOs, Ch. J.-The cases that have already been decided on this subject, have settled the principle on which our judgment must proceed in this case. As this is a removal from Bold to Sulton, all that we are called upon to decide in this case is, Whether or not the pauper be now settled in Sutton? and whether the settlement which he gained in that place has or has not been superseded by a subsequent settlement? for any question that may hereafter arise between the parishes of Bold and Great Sankey, will not affect the case now before the Court. It is stated in the case that the pauper was hired for a year in Great Sankey; that he continued in that service as long as he was capable of performing it; but that in the course of the year he was deprived of his reason, and consequently rendered incapable of discharging his duty to his master. But in the consideration of questions of this kind it is immaterial whether the servant's incapacity to perform his service proceed from an [6 T. R. infirmity of body or of mind. Where indeed the servant com- 587.] mits a crime, the master may apply to a justice to have him discharged; but if no such application be made, the relation of master and servant subsists. In this case there being no fault in the servant, nor any application to a magistrate to discharge him, (for which indeed there was no cause (a),) I am clearly of opinion that the relation of master and servant continued during the whole year, and consequently that the pauper acquired a settlement by that service. If he had recovered his reason before the expiration of the year, the master might have been compelled to receive him again into his house. It was said by Lord Mansfield in R. v. Christchurch, that the absence of the servant on account of sickness will not prevent his gaining a settlement, and that it is immaterial whether or not such absence happen in the middle or at the end of the year. With regard to the case of R. v. Sharrington, though it was not argued, it appears that the Court exercised their judgment upon it, and I subscribe to the doctrine of it. These observations are sufficient to dispose of this case: (a) Vide R. v. The Inhabitants of Hulcott, 589. 2 U 2 but |