John Macdonell.

The law of master and servant. Part I.--Common law. Part II.-- Statute law online

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her separate property all real and personal property, her title to which,
whether vested or contingent, and whether in possession, reversion, or
remainder, shall accrue after the commencement of this Act, including
any Avages, earnings, money, and property so gained or acquired by her
as aforesaid.

12. EA-ery Avoman, Avhether married before or after this Act, shall
have in her own name against all persons Avhomsoever, including her
husband, the same civil remedies, and also (subject, as regards her
husband, to the j^roviso hereinafter contained) the same remedies and
redress by Avay of criminal proceedings, for the protection and security
of her OAvn separate property, as if such property belonged to her as a
feme sole, but, except as aforesaid, no husband or Avife shall be entitled
to sue the other for a tort. In any indictment or other proceeding under
this section it sliall be sufficient to allege such property to be her pro-
perty ; and in any proceeding under this section a husband or wife shall be
competent to give evidence against each other, any statute or rule of law
to the contrary notAvithstanding : Provided ahvays, that no criminal
proceeding shall be taken by any wife against her husband by virtue of
this Act Avhile they are living together, as to or concerning any property
claimed by her, nor Avhile they are living apart, as to or concerning any
act done by the husband A\hile they Avere living together, concerning
property claimed by the Avife, unless such property shall have been
Avrongfully taken by the husband Avhen leaving or deserting, or about to
leave or desert, his AA'ife.

13. A woman after her marriage shall continue to be liable in respect
and to the extent of her separate property for all debts contracted, and
all contracts entered into or Avrongs committed by her before her mar-
riage, including any sums for Avhicli she may be liable as a contributory,
either before or after she has been placed on the list of contributories,
under and by virtue of the Acts relating to joint stock companies ; and she
may be sued for any such debt and for any liability in damages or other-



100 THE LAW OF MASTER AND SERVANT.

wise uinler any such contract, or in re.-^pect of any sucli wrong ; and all
sums recovered against her in respect thereof, or for any costs relating
thereto, shall be ])uyal)le out of her separate pri^perty ; and, as between
her and her husband, unless there be any cnutract between them to the
contrary, her separate pmperty shall be deemed to be jtrimarily liable
for all such debti«, contracts, or wrongs, and lor all damages or costs
recovered in respect thereof : Provided always, that nothing in this Act
shall operate to increase or diminish the liabilitj- of any woman married
before the commencement of this Act, for any such debt, contract, or
wrong, as aforesaid, except as to any separate property to which she may
become entitled by virtue of this Act, and to which she would not have
been entitled for her separate use under the Acts hereby repealed or
otherwise, if this Act had not passed.

14. A husband shall be liable for the debts of his wife contracted, and
for all contracts entered into and wrongs committed l)y her, before
marriage, including any liabilities to which she may be so subject under
the Acts relating to joint stock companies as aforesaid, to the extent of
all property whatsoever belonging to his wife which he shall have acquired
or become entitled to from or through his wife, after deducting there-
from any payments made by liim, and any sums for which judgment may
have been bond fide recovered against him in any proceeding at law, in
respect of any such debts, contracts, or wrongs for or in respect of which
his wife was liable before her marriage as aforesaid ; but he shall not be
liable for the same any further or otherwise ; and any court in which a
husband shall be sued for any such debt shall have power to direct any
inquiry or i)roceedings wliich it may think proper for the purpose of
ascertaining the nature, amount, or value of such property : Provided
always, that nothing in this Act contained shall operate to increase or
dimini.sh the liability of any husband married before the conmiencement
of this Act for or in respect of any such debt or other liability of his wife
aforesaid.

15. A husband and wife may be jointly sued in respect of any such
debt or other liability (whether by contract or for any wrong) contracted
or incurred by the wife before marriage as aforesaid, if the plaintiff in
the action shall seek to establish his claim, either wholly or in part,
against both of them ; and if in any such action, or in any action brought
in resjjcct of any such debt or liability against the husband alone, it is
not found that the husband is lialile in respect of any i)roi)erty of the
wife so aci[uired by him or to which he shall have become so entitled as
aforesaid, he shall have judgment f<;r his costs of defence, whatever may
be the result of the action against the wife iljoiutly sued with him ; and
in any such action against husliand and wife jointly, if it appears that
the husband is liable for the debt or damages recovered, or any part
thereof, the judgment to llie extent of the amoiint for which the husband
is liable sliall be a joint judgment against the husband personally and
against tbe wife as to her sej)arate pro])erty ; and as t^ the residue, if



MAlUtlED Wf)MKN. 101

any, of such debt and dniiages, tlie ju(l<,'iiient sliall be a separate judg-
ment against tlie wife as to her separate, property only.

16. A wife doing any act with respect to any property of lier husband,
which, if done by tlie husband with respect to property of the wife,
would make tlie husband liable to criminal proceedings by the wife under
this Act, shall in like manner be lial>le to criminal proceedings by her
husband.

17. In any (piestion between husband and wife as to the title to or
possession of property, either party, or any such bank, corporation,
company, public body, or society as aforesaid in whose books any stocks,
funds, or shares of either party are standing, may apply by summons or
otherwise in a summary way to any judge of the High Court of Justice
in England or in Ireland, according as such property is in England or
Ireland, or (at the option of the applicant, irrespectively of the value of
the property in dispute) in England to the judge of the county court of
the district, or in Ireland to the chairman of the civil bill court of the
division in which either party resides, and the judge of the Higli Court
of Justice or of the county court, or the chairman of the civil bill court
(as the case may be) may make such order with respect to the property
in dispute, and as to the costs of and consequent on the application as lie
thinks fit, or may direct such application to stand over from time to
time, and any inquiry touching the matters in question to be made in
such manner as he shall think fit : Provided always, that any order of a
judge of the High Court of Justice to be made under the provisions of
this section sliall be subject to appeal in the same way as an order made
by the same judge in a suit pending or on an equitable plaint in the said
court would be ; and any order of a county or civil bill court under the
provisions of this section shall be subject to appeal in the same way as
any other order made by the same court would be, and all proceedings
in a county court or civil bill court under this section in which, by
reason of the value of the property in dispute, such court would not
have had jurisdiction if this Act or the Married Women's Property Act,
1870, had not passed, may, at the option of the defendant or respondent
to such proceedings, be removed as of right into the High Court of
Justice in England or Ireland (as the case may be), by writ of certiorari
or otherwise as may be prescribed by any rule of such High Court ; but
any order made or act done in the course of such proceedings prior to
such removal shall be valid, unless order shall be made to the contrar}'
by such High Court : Provided also, that the judge of the High Court
of Justice or of the county court, or the chairman of the civil bill court,
if either party so require, may hear any such application in his private
room : Provided also, that any such bank, corporation, company, public
body, or society as aforesaid, shall, in the matter of any such application
for the purposes of costs or otherwise, be treated as a stakeliolder only.

19. Nothing in this Act contained shall interfere -nHth or alfect any
settlement or agreement for a settlement made or to be made, whether



102 THE LAW OF MASTER AND SERVANT.

before or after marriage, resiiecting the property of any married woman,
or sliall interfere with or remler inoperative any restriction against
anticipation at present attached or to be hereafter attached to the enjoy-
ment of any property or income by a woman under any settlement,
agreement for a settlement, will, or other instrument ; but no restriction
against antici]ialion contained in any settlement or agreement for a settle-
ment of a woman's own property to l)e made or entered into by herself
shall have any validity against debts contracted by her liefore marriage,
and no settlement or agreement for a settlement sliall have any greater
force or validity against creditors of such woman than a like settlement
or agreement for a settlement made or entered into by a man would have
against his creditors.

20. Where in England the husband of any woman ha\-ing separate
property l)ecomes chargeable to any union or parish, the justices having
jurisdiction in such union or parish may, in petty sessions assembled,
upon application of the guardians of the poor, issue a summons against
the wife, and make and enforce such order against her for the maintenance
of her husband out of such separate property as by the thii-ty-thii'd
section of the Poor Law Amendment Act, 1868, they may now make
and enforce against a husband for the maintenance of his wife if she
becomes chargeable to any union or parish.

21. A married woman having separate property shall be subject to all
such liability for the maintenance of her children and grandchildren as
the husband is now by law subject to for [the maintenance of her
children and grandchildren : Provided always, that nothing in this Act
shall relieve her husband from any liability imposed upon liim by law
to maintain her children or grandchihlren.

22. The Married Women's Property Act, 1870, and the Married
Women's Property Act, 1870, Amendment Act, 1874, are hereby re-
pealed : Provided that such repeal shall not affect any act done or
right ac(piired while either of such Acts was in force, or any right or
liability of any husband or wife, married before the conmiencement of
tliis Act, to sue or ]>e sued under the provisions of the said repealed
Acts or either of tliem, for or in respect of any debt, contract, wrong, or
other matter or thing whatsoever, for or in respect of which any such
right or liability shall have accrued to or against such husl>and or wife
before the commencement of this Act.

23. For the purposes of this Act the legal personal. [representative of
any married woman shall in respect of her separate estate liave the same
rights and liabilities and be subject to the same jurisdiction as she would
be if she were living.

24. The word " contract" in tliis Act shall include tlie acceptance of
any trust, or of the otiice of executrix or administratrix, and the pro
visions of this Act as to liabilities of married women shall extend to all
liabilities by reason of any breach of trustor devastavit committed by
any married wonum being a trustee or executrix or administratri.x either



MARRIED WOMEN. 103

Ijclbro or after her marriaf^n', and her luisband shall nnt he subject to
such liabilities unless he has acted or intermeddled in the ti-ust or
administration. The word " property " in 'this Act includes a thing in
action.

If a woman who is a party to a contract of service
marries, the marriage will not dissolve the contract, and is
no excuse for her leaving the service (o).

(o) Burn's Justice, Y., 222, 30th Chitty's General Practice, 3rd ed.,
od. ; r.. V. Tardchigg (17.53),' Sayer, 77« ; Fitzherbert, 168, N.
100 ; S. C. Burr. Settl. Cases, 322 ;



CHAPTER VII.



LUNATICS.



A CONTRACT of hiring and service entered into by a
lunatic is binding if the fact of insanity be not
known to the person contracting with the lunatic, if
the contract have been executed in whole or in part,
and if tln^ parties cannot be restored to their original
position.

Some of the older authorities state that the acts of a
lunatic are wholly void (a). But modern cases, and espe-
cially Moltun V. Camrovx (b), seem to have laid down the
doctrine stated above.

A lunatic may be bound by contracts for necessaries, in-
cluding services suitable to his rank and station (c).



(a) See Holt, C. J., in rhomsun v.
Leech, (9 Will. III.), 3 Salk. 301 ;
see iilso Garth. 483, and ca.ses cited in
Mo! tan v. Cnmroii.y.

(b) (1848), 2 E.x. 487 ; 12 Jnr.
800 ; 18 L. J. ]ix. 68 ; 4 Ex. 17 ;
18 L. J. Ex. 356. See also Bra-
van V. McDonnell (1854). 9 Ex.
309 ; 23 L. J. Ex. 94 ; 2 C. L. R.
474 ; JInssard v. Smith (1872), 6 Ir.
Ya\. 429. As to contract made liy
wifc of a lunatic, see Dreir v. Niinn
(1879), L. H. 4 Q. B. D. 661 ; 48 E.
J. 591 ; 40 E. T. N. S. 671 ; 27 W. ]!.
810. (Defendant authorised liis wife to
deal with tlic plaintiff and ])Iedf;c }iis
credit ; defendant sub.se(|Uently he-
Ciiine in.sane ; lield liable for floods
ordered by her during his insanitj'.



the jilaintilf not ha\ing had notice of
the defendant's insanity), liichard-
son V. Dubois (Um), E. K. 5 Q. B. 51 ;
39 E. J. Q. H. 69 ; 21 L. T. 635 ;
18 W. R. 62 ; 10 B. & S. 830.
(Action against lunatic for necessary
re}iairs done to his house at the
reijuest of his Avife ; plaintilf knew of
defendant's lunacy ; his wife received
a sufficient allowance to provide all
necessaries ; no cause of action.)

((•) Barter v. Karl of Portsmouth
(1826), 5 B. ii^ C. 170 (tradesman
su])|>lying a lunatic with carriages
suitable tn his station) ; and see also
Jiroiniv. Jodrrll (1S27), 3 0. k P. 30.
As to contracts with drunken person.s,
Malthcvs V. Barter (1873), E. R. 8
r.x. 132.



CHAPTER VIII.



PARTNERS.



A PARTNER has, in the absence of any stipulation to
the contrary in the articles of partnership, implied
authority to hire servants for the purposes of the
partnership (a).

One partner would have power to discharge a servant,
though, not of course, against the will of his co-partners (6).

Joint Stock Companies.

By Schedule A. (55), the business of a company under the
Companies Act, 1802, shall be managed by the directors.
They may exercise all such powers of the company, as are
not required by the Act or Articles of Association to be
exercised by the company or by general meeting, and may do
all acts (including the hiring of servants) reasonably necessary
for the business of the company.

(a) Beckham v. Dralr (1841), 9 M. v. JriUiavis(18BB), 1 Cr. k ^l. 345, h
few. 79. A dormant partner held was held that one of two partners, joint
liable on a contract not signed by tenants of a hoiise where their busi-
him, liy which the plaintiff was hired ii ess was carried on, had a T\g,ht to
for seven years, in /u V. Xrrc7i!. (18"21), anthorise a weekly tenant to remain
•3 Stark. 7*^, it was held that a servant in the house, though the other part-
in the emjdoyment of a firm is the ner had given him a week's notice to
servant of each of the partners. leave the service of the firm, and that

{b) In Dixon on Partnership, p. it would be lawful for the servant to

]3ii, tlie law is thus stated : "As a remain in conscfjuence of such autho-

]iartner may hire servants, so he may rity. If a servant is injured by

dismiss them if the other partners do reason of the negligence of one

not forbid ; and even if they do for! lid partner within the scope of the

it, it is conceived that, at least as partnership, the other will be liable

against the servant, a valid dismissal also. Ashworth v. Sktny.-ix (1861), 30

.•uuld be effected." Lindley on Part- L. T. Q. R. 183.
nership, vol. i. 296. In DonnJditni'



CHAPTER IX.

FORMATION OF THE CONTRACT.

A CONTRACT of hiring and service to be completed
mtliin a year need not be in uniting ; if not to be so
completed, it must be in writing («).

At Common Law a verbal promise for good consideration
sufficed to create a contract of hiring and service; and no
particular form of words was required (b). Indeed, it is
possible and common to conclude contracts of hiring and
service without expressing the whole of the terms orally ;
some of the terms are implied. The parties must be at one ;
the terms must be fixed ; there mnst, in short, be an
agreement (r). The payment of "earnest" or "fastening
money," for example, Avill often suffice. The Common
Law, however, is qualified by the 4th section of the
Statute of Frauds, which states that " no action shall be
brought upon any agreement that is not to be performed
within the space of one year from the making thereof
unless the agreement upon which such action shall be

(a) Brcston v. CoUycr (1827), 4 for the year to be £1-20 kc. If tlie
Bing. 309 ; Chittyon Contracts, 11th terms licrein siiecifieil are in accor-
ed. 70 ; 29 Car. 2, c. 3, s. 4. dance with your ideas, kindly confirm

(b) Bceston v. Collycr, see note («). them l)y return, and 1 will then

(c) Johnson v. Appleby (1874), 1.. prepare to enter on my duties at
R. 9 C. P. 158 ; 43 L. J. C. P. 146 ; your warehouse on Monday morning
30 L. T. 261 ; 22 W. K. 51.0. The next." The defendants wrote :
plaintiff proposed to enter the service "Yours of yesterday embodies the
of defendant and wrote as follows : substance of our conversation and
" Referring to my conversation with terms. If we can define some of
you, I have now the pleasure to state the terms a little clearer, it might
my willingness to enter the service of jireveiit mistakes ; but 1 think we are
your firm for one year on trial on (piite agreed on all." Held that evi-
the following terms, viz., a list of dencc of a custom to dismiss salesmen
the merchants to be regularly calle<l at a month's notice was admissible,
on by me to \n'. made and corrected there being no complete contract.

as occa.sion requires. My salary



'formation of the contract. 107

broucht, or some memorandum or note thereof, shall bo in
writing, and signed by the party to be charged tliercwith, or
some other person thereunto by him lawfully authorised."
" No action shall be brought," are the words of the statute,
which, apparently, does not make a verbal contract absolutely
void, but prevents an action being brought upon it ((/). It hasj
however, been held that an agreement of hiring and service
not to be performed within a year, and not committed to
writing, could not be enforced by criminal process under the
repealed Master and Servant Act, 1867 (e). The Statute of
of Frauds, it may be added, only applies to contracts which
on the face of them show that they cannot be performed
within a year. It does not extend to cases in which it is
improbable that the contract will be completed within that
time, or in which the performance of the contract has, in
point of fact, taken more than a year, if it miglit be per-
formed within the year, and there be no stipulation to the
contrary(/). An agreement for a longer term than a year,
but liable to be determined on a contingency which may
happen within the year, is within the statute, and must
be in writing ; for example, an agreement to let and
hire a carriage for five years, but liable by cu'stom to be
determined at any time on payment of a year's hire (g).

{d) Leroux v. Broion (1852), 12 C. 1872, 2 Coup. 206.
B. 801 ; 22 L. J. C. P. 1. But see (/) Souch v. Straivhridije (1846),

Willes, J., ill Williaiiis v. Whcclcr 2 C. B. 808 (contract for the niain-

(1860), 8 C. B. N. S. :316. tenauce of a child "so long as the de-

('•) Banks V. Crosdaml (187 i), L. fendant shall think proper ") ; Smith
R. 10 g. B. 97 : 44 L. J. M. C. 8 ; 32 v. Ncale (1857), 2 C. B. X. S. 67 ; 26
L. T. 226 ; 23 W. E. 414. Lush, J. L. J. C. P. 143.
based his decision on the fact that {g) Birch \. Liverjmol {1S29), 9 B.
under the 4 Geo. IV. c. 34, s. 3, a & C. 392 ; 4 M. & R. 380 ; Davey v.
contract of service, in order to be en- Shannon (1879), L. R. 4 Ex. D. 81 ;
forced must be in writing, or the 48 L. J. 459 ; 40 L. T. 628 ; 27 "W.
servant must have entered into ser- 11. 599, (engagement for three years
vice, and that the Act of 1867 ex- by a foreman tailor on the terms that
tended only to cases within the old if the defendant left plaintiff's em-
Acts. On the other hand, the Scotch ployment he should not engage in
Courts decided that under the above the service of any one carrying, or
Act a complaint against a servant for himself carry, on business of tailor,
failure to enter upon a contract of kc, within five miles of D. ; within
service might be entertained, although the statute); Cherry v. Her.iinrf
the contract was not in writing. (1849), 4 Ex. 631 ; 19 L. J. Ex. 63.
Kershaw v. Mitchell <& Co., March 16,



108 THE LAW OF MASTER AND SERVA^•T.

The m.annci- in ^vhicll tlie (Joiiris liavc construed the 4th
section will l)c understood from tlie following illustrations : —

A. verbally agreed on the 27tli of ]\r.av with B. to take B. into his
service as groom and gardener for a year, to commence on the 30th of
June next. No action could be brought (h).

A. delivered to B. on the 20th of July a memorandum in -writing
which was luisigned, and which contained proposal, and terms as to B.
entering A.'s service for a year. B. entered A.'s service on the 24th of
July next, and was discharged before the en<l of the year. No action
lay for not continuing B. in A.'s service (i).

^'erlwl agreement on the 2nd of October, 1854, between A. and B.
that A. .should employ B. as a traveller, until the 1st of September,
185."i, and for a year thereafter, unless the employment were determined
by three months' notice. An action for wrongful dismissal did not
lie (k).

Plaintiff agreed on Sunday the 2i5rd of March to serve defendant for
a year, commencing next day. On Monday plaintiff entered defendant's
service, received £20 on account, and gave a receipt — " On account of
my salary for assistance in keeping books from Lady-day, for twelve
montlis." A jury might infer a fresh sul)stituted contract on the 24th for
a year's service (/).

Plaintiff entered the service of defeiulant under a written agreement,
dated April i:3th, 1871, by which he agreed to accept "the situation
as foreman of the works of the defendant, «S:c.," on his receiving "a
salary of two pounds per week and house to live in from 19th April,
1871." A Aveekly hiring ; and evidence of a conversation at the time
of signing the contract with a view to show that a hiring for a year Avas
intended, not admissible (m).

The agreement need not be in one writing ; it may be
contained in several documents which refer to each other,
and which do not require verbal evidence to show that they
in fact refer to each other (n). Thus, when A., a master
builder, filled in, signed, and sent to the Secretary of the
Free Labour Registration Society a form containing parti-

(A) Jlramfirdln V. Hrald (1818), 1 (/») Ennt^ v. J!oc {IS72), L. R. 7

B. & Aid. 722. " IVrformcd," said C. P. 138 ; 2(1 L. T. 70.

Ivord Kllenborouf^h, means " a full, (n) JJoyddlv. I)naiimoji'f(l809),ll

cfTectivc, ami connilcte perlonnancc." P'.ast, 142 ; Jmici v. Virloria Graving

(i) Sncllinij v. Jliniliwjfichl (\^:\\), Dock Co. (1877), L. R. 2 Q. B. D.

1 Cr. M. k R. 20. 314 ; 46 L. J. Q. B. 219 ; 36 L. T.

(k) JJoLsonv. Ci>lfi7is (UC>r,), } II. 317; 2.^. W. K. .^01. Signing by

& N. 81. biitli particK is not rcfjuisite. Mere

(1) Cauihornev. Cordrci/(lSC>Z),1S initials are apparently sufficient:

C. B. X. S. 406 ; 32 L. J. C. \\ 152. brnko on Contracts, p, 275.



FOnMATIOX OK THH fOXTKArT. lU'J

culars as to the kind of" employmcut and terms offered by
him at S., and when B., having heard the form read over to
him, signed an agreement headed " Free Labour Society," by
wliich he stated that he liad accepted employment at S., and
that he would not quit the service of his employer without just
cause, it was held that the documents sufficiently referred to
each other, and constituted a contract in writing signed by



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 13 of 77)