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felony. To Glanville (lib. x. c. 13) the question had presented itself,
whether a bailee could be guilty of larceny. His decision is afnrto cnivi
omnimodo cxcusatur j)er hoc quod^ inifiiim hahnerit sum detentionis ^^e?*
doviinum illius rei. In the reign of Edward IV. the Courts had to
consider whether goods which had been bailed could be stolen by a
bailee. It was decided by all the judges of the Exchetpier Chamber,
except Needham, that the bailee could not be indicted ibr larceny :
13 Edw. IV. 9. He had, they said, " loyal possession of the goods, and
had not taken them vi et armis." The judges, however, decided that it
was felony for a person who had a meie special use of an article —
e.g., of a piece of plate laid l)efore him at a tavern — to convert it to
his own use. By a legal fiction the possession Avas said, in the case of
a bare charge, as distinguished from a general bailment, to be in the
owner. (Russell, ii. 135 ; Hawk. P. C, L c. II), § (i).

When the Courts came to deal with similar oH'ences committed by
servants, which were probably in these days a common fomi of larceny,
they resorted to fictions and refinements. In the Year liooks (3 Hen.
VII. 12, and 21 Hen. VII. 15) the (juestion is discussed whether a servant
who made away with his master's shee]i, might lie indicted for larceny.
The difiiculty with resjiect to possession was surmounted by declaring
that a servant had none ; though some of the authorities apjiear to
confine this to the case of servants residing in their master's house.

1. A fresh difiiculty, however, arose. A servant maybe virtually a bailee ;
you may gave him your jewels to keep for you ; you may send him with
cattle to market to sell. If he makes away with these, can he be con-
victed of larceny ? The Courts were embarrassed by their former de-
cisions with respect to bailees ; and servants appear to have stolen with
impunity articles put into their charge. The 21 Hen. VIII., c. 7, wa.<i
in conseipience i)assed. Tliis statute made it felony for servants to steal
or convert to their own use contrary to tlie trust and confidence reposed
in them, any caskets, jewels, money, goods, or otlier chattels delivered
to them for safe kee])ing. Tlie remedy proved incomplete. By judicial
construction the statute was confined to cases in which goods had been
delivered for safe keejiing. To jirove larceny it was necessary to prove
trespass (Hawk ins, P. C., I.e. 19, § 1), and this could sometimes not be done
even with the exercise of tlie utmost subtlety. Frtquent miscarriages
of justice were the result. Tluis, a weaver, to whom yarn had been
delivered to be worked up at his house, could not be indicted for larceny,



HIRING AND SKRVICE AND SIMILAR CONTRACTS. 81

if lie misappropriated i]w. material. (Kussell on Crimes, ii. 1:54.) The
Legislature passed a series of statutes specially dealing with such oflcnccs.
Servants who made away with chattels given to tliem on behalf of their
masters were, as a rule, not punishable. Yet acting upon puzzling re-
finements, the criminal law punished a servant who had " determiucd
liis original, lawful, and exclusive possession.''

In conse(|uence of a startling decision that a bunker's clerk who had
appro})riated to his own use notes paid across the counter to a customer's
.account could not be jninislied, the '.V.) Geo. III., c. 85, was passed, and
it was made theft for a servant or clerk to emliezzle money or goods
received or taken into possession, " for or in the name, or on the account
of liis master." The cases on this suliject, which involve many subtle dis-
tinctions, will be found in Eussell on Crimes, vol. ii. The present law
on the subject is contained in 24 & 25 Vict., c. 96. The (ilth section
states, that " whosoever, being a clerk or servant, or being employed
for the purpose or in the capacity of a clerk or servant, shall steal any
chattel, money, or valuable security belonging to or in the possession or
power of his master or employer, shall be guilty of felony, and being
convicted thereof shall be liable, at the discretion of the Court, to be kept
in penal servitude for any term not exceeding fourteen years and not less
than three (now five) years, or to be imprisoned for any term not exceed-
ing two years, with or without hard labour, and with or without solitary
continenient, and, if a male under the age of sixteen years, with or Avithout
whipping." By section 68 it is enacted that, " whosoever being a cleik
or servant, or being employed for the purpose or in the capacity of a
clerk or servant, shall fraudulently embezzle any chattel, money, or
valuable security, which shall be delivered to or received or taken into
possession by him for or in the name or on the account of his master or
employer, or any part thereof, shall be deemed to have feloniously stolen
the same from his master or employer, although such chattel, money, or
security was not received into the possession of such master or employer
otherwise than by the actual possession of his clerk, servant, or other
person so emi)loyed, and being convicted thereof shall be liable, at the
discretion of the Court to be kept in penal servitude for any term not
exceeding fourteen years, and not less than three (now five) years, or to
be imprisoned for any term not exceeding two years, with or ■\\'ithout
hard labour, and with or without solitary confinement, and, if a male
under the age of sixteen years, with or without whipping." By section
72 of the same Act, it is enacted that a person indicted for embezzlement
may be convicted of larceny or vice versa, if it be proved that he ought
to have been indicted of larceny. Notwithstanding these amendments,
the law is still disfigured by embarra?sing suljtleties. See Ii. v. Prinrj;
(1868), L. R. 1 C. C. 150, 38 L. J. M. C. 8, as to distinction between ser-
vants having general authority and tho.se having limited authority.

2. As against a wrongdoer mere possession gave a right. In the
United States the Courts have held that goods stolen from a thief may
be described either as goods of the true owner or of the thief. Bishops
Criminal Law, ii. s. 801,

3. The chief writ by which civil redress was obtained in ancient times
•was a writ of trespass, a missive calling upon the defendant to answer a
charge that he had done a wrong vi et a?-j/u>. It implied, no doul)t,
that the plaintiff had been disturbed in the possession of his property ;
but owing to the absence of other remedies — no action on the case' is
mentioned in the books until the reign of Eiw. III., 22, Ass. 41,— the

G



82 THE LAW OK JIASTEK AND SERVANT.

action of trespass m';"13 fieijiicntly iiseil in circumstances to wliicli it was
nut obviously applicable. As late as the reign of Elizabeth it was still
luiilecided whether a master could maintain trespass against a servant for
taking and carrying away his goods which wen; in the custody of the
K-rvant, who was employed in his master's shoj). The Court decided
in J>lo.-;s v. Hohaiin, Owen 52, that trespass lay in tliese circumstances.
See as to master's posso.ssiou, Hall v. DavU (1825), 2 C & P. 33. On
the other liaud, as against a mere wrongdoer, a servant had such pos-
.viission as enabled liim to maintain an action of trespass. (Chitty's
Pleading, i. 196.)

4. For many other puri)oses the pos3essi(jn of the servant is that of
the master. Thus in bankruptcy it is held that goods whicli are in the
])Osses3ion of a servant are within the order and disposition of his master,
tmd as such pass to his creditors. This is illustrated by Hnggard v.
Machenzio (185S), 25 Beav. 4!)3. A Scotch firm established a branch in
London, which was wholly conducted by an agent and manager at a
fixeil salary. It was agreed that he was to have a general lien on all
goods consigned to him for bills accepted by him for the firm. The




~\Vhen a son had possession of certain goods as the servant of his father,
and for tlie purpose of carrying on business for his father's benefit
only, it was held that the goods did not pass to the sou's assignees under
the 21 James I., c. 19 ; Stafford v. Clark (1823), 1 C. & P. 24. See the
curious case, Jachson r. Irviii (1809), 2 Camp. 48, where a warrant under
iifi.fa. against a jierson was directed to his servant and another person as
special bailitt's, and E:c imrk Majorihanlcs, De Gex (1847), 4()f), as to the
effect of joint possession of goods by servants of bankrupt and owner ot
goods.



CHAPTER IV.

PARTIES TO THE CONTRACT.

Any one who is of the acjc of twenty-one, and
is under no legal or natural disability, may make
either as master or servant a valid contract of hiring
and service.

This proposition is imperfect and unsatisfactory : but it is
impossible to comprehend under one head the various forms
of disability or qualified power of contracting, such as idiocy,
infancy, coverture, &c. (a).

EngHsh law scarcely recognises the distinction known to
and of so much importance in Roman law between liberales
operm and illiberal es opercv (h), occupations for which no
wages proper were given, and those for which they were. But
there is a peculiarity with respect to counsel or barristers.
The relation of client and counsel is incompatible with
that of master and servant ; there can be no contract
of hiring between them with respect to litigation. The
whole subject was reviewed by the Court of Common Pleas
in Kennedy v. Broun (a"!, and the chief conclusion wliich was

(a) Smith's Jlastor and Servant, 1 ; of inciliciil practitioners to sue for

Wood's Mnstcr and Servant, 8. fees, see Medical Act of 1858, and

(//) Windsclieid, ii. s. 404. Apothecaries Act, 55 Geo. III., c.

(c) (1863) la a B. N. S. 677 ; f> 194 ; and as to the state of the law

Jur. N. S. 119 ; 32 L. J. C. V. ItiT ; before the passing of the former Act,

11 W. II. 284 ; 7 L. T. N. S. 626 ; see Vrifch v. Ilusadl (1342), 3 Q. 13.

action on a promise, in considcra- 028 ; 12 L. J. Q. 1>. 13. "The phy-

tion of services as counsel, held not sician has a claim, usually recognised,

to lie. See remarks on tins case in to remuneration for his services ; but

Pollock on Contracts, 3rd ml.. 6'-\S ; lie has no legal title to it." He

also Most'piy. MoM-jin (1870), Ii. R. ^ could, liowcver, have made a contract

Ch. 457, and Rohcrtson v. McPonnqJi, with respect to it.
14 Cox, C. C. 469. As to the ri-ht

u 2



84 THE LAW or MASTER AND SERVANT.

come to was thus expressed : " We consider that a promise
by a client to pay money to a counsel for his advocacy,
whether made before, or during, or after the litigation, has
no binding effect ; and, furthermore, that the relation of
counsel and client renders the parties mutually incapable of
making any contract of hiring and service concerning advo-
cacy in litigation."

A person who is under a binding contract to serve A. for
a certain time, cannot enter into a binding contract with B.
for the same period. " One who has contracted," says Lord
Ellenborough, in R. \. Norton, "a relation which disables
him from serving any other without the consent of his first
master is not sui juris, and cannot lawfully bind himself to
serve such second master "(fZ). Hence the Courts refused to
admit that soldiers gained settlements by hiring and service
while they were still in the employment of the Crown (e).
Ixi R. V. l^orton{f) it was held that a deserter from the
Kino-'s service could not be " lawfullv hired " within the
meaning of 3 Will. & Mary, c. 11, s. 7. But one who is not
in all respects the servant of A., because he has previously
entered into a binding contract with B., may be the servant
of A. in such a sense that A. will be liable to him for his
wages, and will be responsible to third persons for his acts.

{(l) Ji. V. Jlindringham (1796), 6 service as would givi- a sottlcincnt
T. It. 557. A., an infant indentured unless the master had an ahsoluto
as an apprentice to B. ; during the right to the services for the wliolc
apprenticeship he entered the navy time. On the other hand, it was
with tlie consent of his master ; hut held that hiring for a year by a
his articles were not delivered U]>. militiaman, if tlie fact of' his being
After quitting the navy, and before such were made known to the master
the exiiiration of the apprenticeship, at the time of hiring, gave a .settle-
he hire(i himself to C. Held, that mcnt ; II. v. WcslcrleHjh (1773),
A., not being sui juris at the time, I'.urr. S. C. 753 ; R. v. Winchfomb
could not enter into a legal con- (17S0), 1 Doug. 391 ; It. v. 2'aun-
tract. As to difference between ton (1829). 9 H. k C. 831 ; R. v,
contract with soldier and one with ,S7. John (IS'29), 9 H. & C. 896 ; R.
infant, R. v. Chilksford (1825), 4 v. Elmlcy Castle (1832), 3 B. k Ad.
B. & C. 94, 100. 826; R. v. St. Mary-at-lhc-n^aU

(<•) 7.'. V. BcauUcu (1814), 3 M. (1834), 5 B. k Ad. 1023 ; R. v.

k S. 229. A soldier, though not ff'itncsham (1835), 2 A. & E. 648 ;

" lawfully hired" within the meaning case of member of a Volunteer corps

of tlie statute, could have recovered under 44 Geo. III., c. 54.
wages for hi.s services. The Court [/) (1808), 9 East, 206.

refused to find such a hiring and



PARTI K3 TO THE CONTRACT. 86

The position of servants and apprentices who enlist in the
army is now governed by statute. Sect. 9G of the Army
Act, 1881 (44 & 45 Vict., c. 58), states that "the master
of an apprentice in the United Kingdom who has been
attested as a soldier of the regular forces may claim him
while under the age of twenty-one years, as follows, and
not otherwise : (1.) The master, within one month after
the apprentice left his service, must take before a justice
of the peace the oath in that behalf specified in the First
Schedule to this Act, and obtain from the justice a certifi-
cate of having taken such oath, which certificate the justice
shall orivo in the form in the said Schedule, or to the
like effect : (2.) A court of summary jurisdiction within
whose jurisdiction the apprentice may be, if satisfied on com-
plaint by the master that he is entitled to have the appren-
tice delivered up to him, may order the officer under whose
command the apprentice is to deliver him to the master ; but
if satisfied that the apprentice stated on his attestation that
lie was not an apprentice, may, and if recjuired by or on behalf
of the said commanding officer shall, try the apprentice for
the offence of making such false statements, and if need be
may adjourn the case for the purpose : (3.) Except in pursu-
ance of an order of a court of summary jurisdiction, an
apprentice sliall not be taken from her Majesty's service :
(4.) An apprentice shall not be claimed in pursuance of this
section unless he was bound for at least four years by a
regular indenture, and Avas under the age of sixteen years v.'hen
so bound : (5.) A master who gives up the indenture of his
apprentice within one month after the attestation of such
apprentice shall be entitled to receive to his own use so
much of the bounty (if any) payable to such apprentice on
enlistment as has not been paid to the apprentice before
notice w^as given of his being an apprentice." As to servants
enrolled in Militia, see Voluntary Enlistment Act of 1875, 38
& 39 Vict., c. 6.9, sect. 78.

In regard to seamen volunteering into the Navy, see Mer-
chant Shipping Act, 1854, sections 214 — 220. By section 215,



■86 THE LAW OF MASTER AND KERVAN'J.

a j)roportionato part of wages dowj) to the time of entiy must
be paid by the master. By section 214 seamen are allowed
to leave their ships to enter the Navy, and " all stipulations
introduced into any agreement whereby any seaman is de-
clared to incur any forfeiture, or be exposed to any lovSs in
case he enters into her Majesty's naval service shall be void,
and every master or owner who causes any such stipulation
to be so introduced shall incur a penalty not exceeding

{(j) Sec rart 11.. fliapter JX.



CHAPTEK V.

INFANTS.

Contracts of liiriug and service by infants — that is,
by persons who have not attained the age of twenty-
one — arc voidable at their option, unk^ss they be for
necessaries or for the benefit of the infants (a).

On coming of age an infant might, at Common Law, ratify
a promise previously made by him so as to render it binding.
The Legislature, however, has greatly limited the power of
ratification. The Infants' Relief Act of 1874 (37 & 88 Vict.,
c. 02) enacts (s. 1) that, " All contracts, whether by specialty
or by simple contract, henceforth entered into by infants for
the repayment of money lent or to be lent, or for goods sup-
plied or to be supplied (other than contracts for necessaries),
and all accounts stated with infants, shall be absolutely void ;
provided always that this enactment shall not invalidate any
contract into which any infant may, by any existing or future
statute, or by the rules of Common Law or Equity, enter,
except such as now by law are voidable." Section 2, Avhich
is of most consequence in this connection, says, " No action
shall be brought whereby to charge any person upon any
promise made after full age to pay any debt contracted during
infancy, or upon any ratification made after full age of any
promise or contract made during infancy, whether there shall
or shall not be any new consideration for such promise or
ratification after full age." It was decided in Coxhead

((/) Coke on Litt. 78 6.



88



THE LAW OF MASTER AND SERVANT.



V. MvMls (h) — an action for breach of promise of mamage —
that tlie second section does not exclusively apply to such
contracts as are mentioned or referred to in the first section ;
the section extends to contracts of hiring and service.

The chief exception at Common Law to the principle, that
infants' contracts do not bind them, was in the case of con-
tracts for necessaries, which include, according to Coke's
explanation, " necessary meat, drink, apparel, necessary
physic, and such other necessaries, and likewise for good
teaching or instruction whereby he (the infant) may profit
himself afterwards," (c) and which need not exclude many
articles popularly known as luxuries. An infant will also
be bound by contracts which are to his benefit or advan-
tage (d) ; and it is for the Court to determine whether this
is the case. Contracts of hiring and service and appren-



{!>) (1878), L. K. 3 C. P. D. 439 ;
47 L. J. V. P. 7(51 ; 39 L. T. 349 ;
27 AV. R. 136 ; see also Northcote v.
])ou(jhtii (1879), L. K. 4 C. P. D.
335; Ej; parte Kibble (1S7 5), L. R.
10 Ch. 373 ; 44 L. J. B. 63. As
to what will amount to a ratifica-
tion of a contract, by an infant, see
Cornv:all v. Hav:kins (1872), 41 L. J.
Ch. 435 ; 26 L. J. 607 ; 20 W. R.
653 ; infant entered into service of
milk-seller, and covenanted not to
carry on same trade ; and, after
coniinj; of age, ht> continued in the
same service for ei<:;litoen months witli-
out repudiating his promise. Held,
that tliis amounted to ratification.
\nBukin\. Forth (1875), 33 L. T.
532, it was held that a minor, who
agreed on the lltli Dec, 1871, to
serve for live years as a warehouse-
man, and who having attained the
age of 21 in April, 1873, continued
in the sei-vice of his employers, diil
not ratify his agreement by writing
on th(! 17th of Jan., 1874 a letter
saying tluit \w. would give up his
situation in twenty-eiglit days. Pro-
bably the decision turned more; on the
fact that the (Jourt relied on JIarmer
V. KiUinij (1804), 5 Esp. 10'2, whicli
shows that a promise to bind as a



ratification must be given voluntarily
by a minor, and with full knowledge
that he was released.

(c) Coke Litt. 172(7. See Lord
Jlansfield's judgment in Zouch v.
Parsons (1765), 3 Bur. 1801 ; Bacon's
Abridg. " Infancy," I., 3, 360 ;
Skrine v. Gordon (1875), 9 Ir. C.
L. 479 ; Hill v. Arbon (1876), 34
L. T. 125 ; Hart v. Prater (1837),
1 Jur. 623 (riding-horse a necessary
for a chemist's apotliecary, who was
ordered by doctor to take riding
exercise). As Kelly, C.B., pointed
out in Ihjdcr v. Jl'omhwrll (1868),
L. R. 3 Ex. 90 (jewelled solitaires
and a silver goblet necessaries for a
baronet's son), "necessaries" cannot
be sejiarated from " its legal ad-
junct, suitable to the estate and con-
dition of the infant."

(d) " And an infant shall be
bounden by all acts done by him
during his nonage, which acts arc for
liis advantage, if not in some special
cases ; and, therefore, if an infant at
the years of discretion make a bond
for his necessary meats and ilrink, or
for his necessary ajjparel, or for his
schooling, he shall not avoid the
same." Perkins, C. I. S. 14.



liJFANTS-



89



ticesliip arc primd facie regarded as for the benefit of
infants (c). An infant who has hound himself as apprentice
to one master cannot before the expiration of the period of
service transfer his services to another (/"). But if a contract
of liiring and service between a minor and a person of full
age be inequitable and prejudicial to the former it will not
bind him (g). Thus a contract of hiring and service which
subjects an infant to a penalty or forfeiture will not be
binding (//).

There is no reason why an infant should not be a master (l).



(c) Tollock on Contracts, p. 65 of
3rd ed.

(/) Ji. V. Amndcl (181(3), f. U.
k S. '257; IL v. ChiUcsford (18-25).
4 B. & C. 102 (infant who enters into
a contract of apprenticeship ■will he
liable to the statutory ruf^ulations
applicable to master and servant) ;
Wood V. Fenwkk (1842), 10 M. &
W. 195 : "There can be uo donbt
that, generally speaking, a contract
for an infant to receive wages for
his labour is binding upon him." In
Cooper V. Simmons (1862), 31 L. .1.
M. C. 138, Martin, B., & AVilde, B.,
state that a contract of service is
binding on an infant unless it be
manifestly not to his advantage.
Must the contract, to be binding, be
manifestly to the advantage of the
infant, or is it binding unless it be
manifestly to the prejudice of the
infant ? The rule is stated in the
former way in A', v. ]Viqston'^%1\),
3 B. & C. 484, and in the latter way
in Cooper v. Simmons, by Wilde, B.
It is submitted that the first is
correct.

(q) J!. V. Lord (1850), 12 Q. B.
757 ; 17 L. J. M. C. 181 (an infant
bound for twelve months not to en-
gage in any other service or business
liuring the whole time ; the master
free to stop work and wages when he
thought fit ; the servant liable to be
dismissed for misconduct or disobe-
dience, and, in the event of dismissal,
to forfeit his wages ; contract held
void). Leslie v. Fitzixdrick (1877),
L. K. 3 Q. B. D. 229 ; 47 L. J. M.
C. 22 ; 37 L. T. 461 ; where the Court
of Queen's Beach refused to declare



void a contract by which an infant
undertook to serve as an iron ship-
builder lor five years, at weekly wages,
with a ]>roviso that, if the employers
ceased to carry on business, or found
it necessary to reduce their works, or
in consecpience of any accident, they
might terminate the contract at four-
teen days' notice. " If such provi-
sions," it was said by the Court, in a
passage which seems to furnish the
true rule, "were at the time common
to labour contracts, or were in tlio
then condition of the trade such as
the nuister was reasonably justified in
imposing as a just measure of protec-
tion to himself, and if the wages
were a fair compensation for the ser-
vices of the youth, the contract is
binding, inasmuch as it was beneficial
to him by securing him permanent
employment and the means of main-
taining himself." This seems to
conflict with Birkin v. Forth (1875),
33 L. T. N. S. 532.

(/() Coke, Litt. 172 a. ; Bacon's
Abridg. " Infancy," I., 1, 356 ; A;iUf
V. ArelidnJe, Cro. Eliz. 920 ; Eusseli
V. Zc'^ (14Ch. ii.), 1 Lev. 86 ; Fis/ter v.
Movbrarj (1807), 8 East, 330, (infant
not bound by bond bearing interest) ;
Baylis v. Dineley (1815), 3 M. k, S.
477. But see U'ood v. Fenvnek.

(i) Hands v. Slaney (1800), 8
T. W. 578 ; ChnppJe v. Cooper (1844),
13 M. k ^X. 252, 258, where Alder-
son, B., held that in certain circum-
stances a servant would be a neces-
sary for an infant ; R. v. St. Petrox
(1791), 4 T. E. 196 ; 2 Bott, 377,
and Cald. 444.



90



THE LAW OF MASTER AND SKllVAKT.



Au iufant may enter into a contract of hiring and service
with his father or mother (/.). A father cannot bind his
son apprentice without his consent, and the son must execute
the indenture. Parish apprentices were, in virtue of a
special statute, exceptions to this rule (/).

An infant who is apprenticed cannot be sued upon the



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