M. E. Dunlap.

Abridgment of elementary law, embodying the general principles, rules and definitions of law, together with the common maxims and rules of equity jurisprudence, embracing the subjects contained in a regular law course, collected and arranged so as to be easily acquired by students, comprehended by j online

. (page 27 of 43)
Online LibraryM. E. DunlapAbridgment of elementary law, embodying the general principles, rules and definitions of law, together with the common maxims and rules of equity jurisprudence, embracing the subjects contained in a regular law course, collected and arranged so as to be easily acquired by students, comprehended by j → online text (page 27 of 43)
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2. A Master is one who stands to another in such a relation
that he not only controls the results of the work of the other,
but also may direct the manner in which such work shall be
done. Herein lies one of the great differences between the
doctrines of master and servant and those of principal and
agent. The master may direct, not only what the servant is
to do, but how he is to do it. The master may recall his
orders, change his mind, or undo what has been done, without
making himself liable to the servant for breach of contract.
A principal, on the other hand, by contract directs what is to
be done, but the agent is entitled to his own discretion as to
the means he shall use, unless they are settled by the con-
tract.



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DOMESTIC BELATION8. 859

A 8BBVANT is ODB who is employed to render personal serv-
ices to his employer, otherwise than in pursuits of an inde-
pendent business.

8. The relation of master and servant depends on oomtbaot,
express or implied. The contract is governed by the same
principles which apply to contracts generally. For instance,
if the contract cannot be performed within a year, it must be
in writing. A contract of hiring may be terminated or dis«
charged like any other contract. Where the duration of the
service is not stipulated in the contract, in England it is pre-
sumed to be for a year, but this may be rebutted. In most
jurisdictions in this country such a contract is prima fade
terminable at will by either party. Where the contract con-
tains stipulations as to periods of payment, the length of serv-
ice may be inferred therefrom. A contract for a period ** not
exceeding" a designated term, has been held to be a contract
of indefinite duration.

4. A servant is justified in abandoning a contract of service
when the master does any act which necessarily prevents per-
formance of the service, when the master refuses to make
payment as contemplated, where he reduces the servant's
wages, or where he commits an assault on the servant. The
servant is not justified in so abandoning the service for mere
harsh words, or fault-finding, unless thereby his comfort is
reasonably impaired, nor on account of a disagreement with
a fellow-servant. A servant who wrongfully abandons a con-
tract is not entitled to compensation for work already per-
formed, if the contract is an entire one. A master may
rightfully disohabob a servant for any of the following
grounds: Neglect of duty; incapacity to work caused by
illness, if the illness is such as will extend over an importiant
portion of the duration of service, or where time of recovery
is uncertain, or where the need of the service is urgent ; in-
science or disrespect towards the master, or towards cus-
tomers or friends of the latter ; intoxication, if it renders the
servant at any time unfit for service; gambling, if servant
occupies a fiduciary capacity ; engaging in other employment ;



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360 DOMESTIC RELATIONS.

incompeteDcy ; disobedience; or anything inoonslsteot with
contract of hiring. The master may waive his rights to dis-
charge the servant, and retention after the occorrence of the
ground of discharge is prima facie evidence of such waiver.

5. After a wrongfal discbarge a servant can, of coarse, soe
for sums actually earned and due by terms of the contract.
He may treat the contract as rescinded and sue on a quantum
meruit for the value of his services. Again, the servant may
treat the contract as continuing and sue for a breach, either
at once or at the expiration of the term. The master cannot
be compelled by a decree of court to retain a servant in his
employ. A servant has a caose of action againt one who ma-
liciously causes his discharge when his contract was for either
a certain or uncertain period.^

6. When amount of wages or ooupensation is not fixed by
the contract, the servant is entitled to the reasonable value of
his services. When payment of wages is to depend on a con-
tingency and the contingency does not happen, the servant
cannot recover anything, irrespective of the question of ben-
efit to the master. When wages are to depend on profits of
business, the servant is not a partner, unless be has some far-
ther interest in the capital or business of the master. In
such cases *^ profit " means *' net profit/' and the remedy of
servant is by an action at law to recover the value of his serv-
ices. He can not compel an accounting. Where master
promises to pay extra for services within ordinary scope of
employment this promise is without consideration. If ser-
vant performs extra services not within his ordinary duties, he
still cannot recover therefor, if he has performed such services
voluntarily. Where the contract is an entire one the servant
forfeits all wages due by leaving before the end of his time,
Stipnlations in contracts for forfeiture of waged, for mainte-
nance, for misconduct, are strictly construed against the mas-
ter. Such a stipulation if unreasonable is void in many juris-
dictions. When nothing is said about time of payment, it is
presumed to be at expiration of term. In an action by servant
to recover wages, the master may show by way of set-off any



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DOME8TIG RELATIONS. 861

injary that he has sastained by reason of the servant's negli-
gence or misconduct. Where contract is for the whole time of
the servants, the master is entitled to any compensation the
servant receives for services to outside parties. In many
jurisdictions a servant is given by statute a lien upon property
of master in certain cases for wages performed within a cer-
tain time. These statutes are by no means uniform.

7. Death of master is termination of contract, but insanity is
not. Voluntary dissolution of a partnership is not a termina-
tion but dissolution by the death of a partner is a termination.
Performance prevented by acts of the law is excuse for non-
performance.

8. Where a confidential relation exists between master and
servant, the servant will be restrained by equity from reveal-
ing or using for bis own advantage any trade sbcrbts of the
master. It is the same where there is an express stipulation
to that effect in the contract, or where servant acquires his
knowledge surreptitiously. Where the servant is employed to
devise or perfect an instrument he cannot use such perfected
instruments for any purpose of his own. Where, however, the
servant is merely performing general duties in a particular
department of service, he can control absolutely any invention
he may conceive or perfect while thus employed.

9. Servant's liability for their own negligence or other
misconduct is governed by the ordinary doctrines of torts.
The servant is liable to the master for any damage, either
negligent or wilfull, inflicted directly upon the master, or.for
which the master has been forced to pay others. The servant
is not liable to third parties for mere nonfeasance.

10. A master is bound to use ordinary care to prevent in-
jury to servant in the course of the employment, and cannot
contract for exemption from failure to do so. The master
must furnish a reasonably safe place in which to work. This
must vary in individual cases in accordance with the character
of the work. The same rule applies to machinery and appli-
ances. This duty of the master is a continuing one and the
servant may rely upon the performance of this duty by the



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362 DOMESTIC RELATIONS.

master. Of coarse the servant most be himself free from
coDlinaed negligence, in order to recover. It is the duty of
the master to adopt, and make known to employes, reasonable
rales for the carrying on of a dangeroas business, an4.for
the protection of the employes.

A servant is presamed to have notice of and to have as-
sumed all risks incident to all dangers and defects which to a
person of his experience and understanding are or oaght to be
patent and obvious.

11. The question as to how far a master is liable to third
parties for acts of a servant is governed by the ordinary doc-
trines of agency. The master may maintain action against
third persons for any loss of services due to an injury inflicted
upon the servant by such third person.

12. Where a master uses due diligence in the selection of
competent and trusty servants, and furnishes them with suit-
able means to perform the service in which he employs them,
he is not answerable, where there is no countervailing statute,
to one of them for an injury received by him in consequence
of the carelessness of another, while both are engaged in tlie
same service. This rule does not relieve the mast«T from lia
bility for the consequences of hU own negligence or the negli-
gent servant. Thus the master is liable for the torts of a
servant to the latter*s fellow-servants, if the servant is known
to the master to be incompetent, or if the master has negli-
gently employed an incompetent servant. In many States the
doctrine does not apply where one servant is given power to
superintend the actions of the others. This is the so-called
*' superior servant " limitation. Where one servant is injured
by the negligent performance by another of the personal
duties which every master owes to his servants, then the mas-
ter is universally held liable. This is the *^ vice-principal'*
hmitation. Some States have added a limitation where the
servants are employed in different departments of service. In
some States by statute railroad companies are excepted from
the application of the fellow-servant rule. These statutes
have been held constitutional and the railroads are not allowed



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DOMESTIC RELATIONS. 863

to contract against this liability. Fellow-servants are those
engaged in a common employment. A common employment
is generally lield to be service of snch a kind that all who en-
gage in it in the exercise of ordinary sagacity, may be able to
foresee that the carelessness of fellow-servants may probably
expose them to injary.



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HUSBAND AND WIFE.

ANALYSIS.

1. Marrlafi;e.

8. Rights of hosbaDd.

8. Wife's separate estate.

4. Dower and courtesy.

5. Disabilities arisloK from coverture.

6. Liability of husband for acts of wife.

7. Divorce.

1 . Marriage is a civil status existing between one man
and one woman, and arises out of a contract between them to
live together as husband and wife. As in the case of an ordi-
nary contract, there must be mutual consent and capacity to
contract. There are certain disabilities which render parties
incapable of making a valid contract of marriage. These are
now: 1, Usually relationship nearer than cousins; 2, prior
marriage undissolved ; 8, want of mental capacity ; 4, want
of age. The age at which parties are capable of making a
marriage contract varies from fourteen to eighteen in males
and twelve to sixteen in females. At common law the age of
legal consent was fourteen for males and twelve for females.
In the absence of statute no formalities were necessary at
common law, but statutes have made certain formalities requi-
site in practically every jurisdiction.

2. By virtue of the marriage status the husband has certain
personal rights. He is the head of the family. He can
fix the residence or domicile of the family. The hus-
band may restrain the liberty of the wife when it is necessary
to prevent her from committing a crime or adultery, and per-
haps a tort for which he would be liable. The husband has a
right to the services of his wife, and may maintain an action
against any one who wrongfully deprives him of them.

By virtue of the marriage status the husband has also cer-
tain rights in and to the property of the wife. Of the wife's
freehold estates the husband is seized during coverture,



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DOMESTIC RELATIONS. 365

and is entitled to all the rents and profits. He can-
not, however, dispose of or incamber the estate which re-
mains to the wife or her heirs after coverture ceases. In
the wife's chattels real the husband acquires a sort of
Joint tenancy. He may sell, assign, mortgage or otherwise
dispose of them during coverture. They are liable for his
debts and, after the death of the wife, become his, absolutely,
subject to her ante-nuptial debts. He cannot leave them by
will so as to defeat the wife's right of survivorship. The
personal chattels which belong to wife at time of marriage, or
which come to her during coverture, vest absolutely in the
husband. He is entitled to her choses in action if he reduces
them to possession during coverture. On his death they vest
in his representatives except the wife's paraphernalia, that is,
articles of wearing apparel or personal ornament. Statutes,
however, usually provide for an allowance to wife out of the
personal estate, which is usually prior even to the debts of the
husband.

8. The wife's equitable separate estate is the name given
to the estate, real or personal, which equity permits a married
woman to hold free from the control of her husband. To
create such an estate, it must be settled to her sole and sepa-
rate use. She usually has power to convey such estate, with-
out a provision to that effect in the instrument creating the
estate, and in most States the wife may change such estate by
contract. By statute in most States the wife is given power
to hold her own property free from the control of her husband.

4. The principles relating to dower and courtesy are
treated under the head of Real Property.

5. Marriage imposes no disabilities upon the husband
except so far as he is incapacitated from entering into valid
transactions with the wife. The wife, however, is incapaci-
tated at common law from acting as a feme sole. She cannot
make a binding contract even with her husband's consent.
This is true even as to necessaries. But a contract executed
by the wife is enforceable against the other party. But in
equity a married woman may charge her equitable separate
estate. In moet jurisdictions, however, enablmg statutes have



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366 DOMESTIC RELATIONS.

beeo passed, by which the disability of a married womao to
contract has either been abrogated or greatly modified. Ex-
cept ander a marriage settlement, or with her husband's con-
sent, at common law a married woman coald not dispose of her
personalty by will. The same was tme of her realty, even
with the husband's consent. This has also been to a great ex-
tent changed by statute. A. feme covert could not sue or
be sued unless her husband were Joined. Where necessity
required that a feme covert should act as a feme sole, the
disability was removed, for example, where the husband was an
alien or banished.

6. The husband was liable at common law on the ante-nuptial
contracts of the wife to the extent of the property he re-
ceived from her. Statutes allowing the wife to hold property
of her own, do not take away this liability of the husband.
This liability only exists during coverture. The husband is
not liable on contracts made by the wife during coverture,
but may be charged for necessaries supplied to her. The
husband during coverture is liable for the torts committed
by the wife, either before or during coverture ; and the wife
is Jointly liable with him unless the tort was committed
in his presence and by his direction and command. If it is
committed in his presence the presumption is, that it is
committed by his direction and command. The same pre-
sumption exists in case of crimes, but in either case may be
rebutted. Further than this presumption the husband is not
held for the crimes of the wife. They are liable for crimes
committed upon each other, except, at common law, larceny,
burglary or arson.

7. Divorce is the legal separation of husband and wife by
the judgment of a court. At common law there were two kinds,
a menaa et thoro^ from bed and board, and a vinculo mcU"
rimanii^ a total divorce from the bonds of matrimony. A
Judicial separation has now taken the place of the common law
divorce a menaa et thoro. The causes generally recognized
as grounds for divorce are adultery, impotency, cruelty, fraud
in obtaining the marriage and desertion. An absolute divorce
puts an end to all property rights dependent on marriage.



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PARENT AND CHILD.

ANALYSIS.

1. Bights of Parenu.
9. Dalies of Parents.
8. Liabilities of Parent.
4. EmancipatioD.

1. The father Las the right to name a child and giving the
child a particular name at the request of a third person is
sufficient consideration to support a contract as against said
third person. The father has a par&mouut right to the cus*
tody of tlie child. If the father is uufl<, however, the custody
of the child will be given to the mother. The welfare of the
child is the guiding consideration. A contract by the parent
to surrender the custody of the child to any person is void as
against public policy. The parent has a right to the services
and earnings of a minor child while under the parent's care
and protection. This is based upon the idea of compensation
to the parents for maintenance. The parent may recover
compensation for the services of the child performed for a
third person, unless the parent has waived this right. A
failure on the part of the parent to furnish a child with a
home, will oonstitue such a waiver. A person in loco parentis
has the same rights as a parent, for example, a grandfather
with whom the child lives, or a person who has adopted it.
The parent has no rights over the property of the cMId, but
the title to such property as the parent furnishes to the child
in the way of support remains in the parent. When a child
is wrongfully injured, or seduced, by a third person, the
parent may maintain an action for any damage he has suffered
by reason of the loss of services. The right to the services
of the child may be reached by the creditors of the parent.

2. Some courts hold that the duty of the parent to support
the ohild is a mere moral duty but the majority treat the duty
A8 a legal one. This is irrespective of the amount of property



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368 DOMESTIC RELATIONS.

owned by the child. When the parent is unable to support a
child aod the child has property of its own, equity will often
make the parent an allowance out of the child's property for
the latter's support. A parent who does not furnish neces-
saries to the child is liable to third persons who do so. There
is no legal duty upon the parent to furnish legal education to
the child.

S. The parent is never liable for the wrongful acts of a child
unless such acts were performed with the parent's consent, or
in connection with the parent's business. Whether a parent
is liable on a contract made by a child, must be determined
by the ordinary doctrines of agency.

4. Emancipation of a minor is not to be presumed but must
be proved. A child upon attaining full age Is presumed to be
emancipated, and the parent's authority over it at an end.
A parent may by agreement emancipate a child.



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GUARDIAN AND WARD.

ANALYSIS.

1. General stateineDt.

2. Bights and duties of a gaardiau with respect to the ward's per-

son.
8. Daties of goardlan with respect to the ward's estate.
4. TermiDaiioD of guard iaushlp.

1. A GUARDIAN is One to whom the law intrusts the persons
or estates, or both, of those who, by reason of their infancy or
some mental infirmity, are not sui juris. At common law
there are four kinds of gaardians: in chivalry, in socage, by
nature, and for nurture. The most important forms of mod-
ern guardians are : testamentary, judicial and ad litem. A
testamentary guardian is an appointee by will. Such power
of appointment by will is by some statutes in the father alone,
but generally confined to the surviving parent. A Judicial
guardian is one appointed by a court of competent Jurisdic-
tion, which is generally, in the absence of a statute to the con-
trary, a court of equity. A guardian od litem is one appointed
by a court to prosecute or defend for an infant in a suit to
which the infant is a party.

2. The guardian is ordinarily entitled to the custody of the
ward, except, in this country, as against the parents ; but he
is not entitled to the ward's services or earnings. He is
bound to maintain the ward from the income of the ward's
estate, but he cannot bind the principal of the estate without
leave of court ; and he is not bound personally to furnish sup-
port. He cannot by contract bind either the ward or the
ward's estate, and is personally liable on such contracts.
Guardians, other than the parents who are sometimes called
natural guardians, cannot change the state or national domicile
of the ward, though they can change the municipal domicile*

8. It is the duty of the guardian to collect all rents, profits,
and other dues, pay the expenses, deposit and invest the ward's

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370 DOMESTIC BELATIOKS.

money, lease his lands, keep the estate in repair, and in gen-
eral to exercise the same care and foresight in the manage-
ment of the estate as a prndent business man would exercise
in the management of his own estate. The guardian is sub-
ject to the same rules as a trustee. He cannot, therefore,
reap any personal benefit from the management of the ward's
estate, nor sell to or purchase from the ward. If a guardian
exceeds his authority he is liable for any loss, and must
account for any profit.

4. Guardianship is terminated: 1. By the ward's reaching
his majority. 2. By the death of the ward. 3. By the death
of the guardian. 4. By the marriage of a female ward. 5.
Under some statutes, by the marriage of a female guardian.
6. By the resignation of the guardian. 7. By the removal of
the guardian.



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THE LAW OF TOKTS,



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ANALYSIS.

1. What is a tort.

8. Tort distlDgaished from crimes.

8. Torts and contracts.

4. Elements of a tort.

5. Who are liable for torts.

6. Torts —How redressed.

7. Volenti non fit injoria.

8. Torts against personal security.

9. Torts against personal liberty.

10. Torts affecting relative rights.

11. Torti in confidential relations and torts growing oot of neglects

of official duties.
18. Torts affecting personal property.
18. Torts involving fraud.
14. Negligence.
16. DiiMmssion of negligence.

16. Elements of negligence.

17. Proximate cause.

18. Standard of care.

19. Contributory negligence, comparative negligence and impaUdd

negligence.

80. Noisances.

81. Public and private nuisances.
88. Nuisances per se.

88. Elements of a nuisance.

81. Locality as determining a nuisance.

85. No classiflcatlon of nuisances possible.



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THE LAW OF TORTS.

1. A tort is a private wrong. There are three kinds of
wrongs or illegal acts: first, those which are wrongs against
the public and are called crimes ; second, wrongs which arise
from the breach of contracts ; and third, those which arise in-
dependent of contracts, and to this last class belong torts. A
tort is a wrong to any legal right, and by legal right is meant
a personal or property right possessed by any one which the
law recognizes and protects. Torts, therefore, cover wrongs
done throoghoat the realm of legal rights, be they rights of
persons, and therein of the absolute rights of individuals, of
the relative rights of master and servant, of husband and wife,
parent and child, guardian and ward, and the rights in things,
be it a tort to personal property or to real property. It is
therefore impossible to make any accurate division and classi-
fication of torts, for wherever the law recognizes a legal right,
it also protects against and redresses the legal wrong.

2. A tort must be distinguished from a crime, for
though both are wrongful acts, a tort is a wrong done to the
right of a private individual and a crime is a wrong done to
the public at large. One element of distinction between a
tort and a crime is that, in a crime the person guilty of it
must have had the evil intenU.to commit the crime, but that
in many torts intent is not necessary. It must also be re-
marked that frequently the same act is both a tort and a
crime, as for instance in the case of an assault and battery, the
person guilty of the assault and battery has committed a
crime against the law of the State, but he has likewise been
guilty of a tort, in that he has violated the right of personal
security which the law recognizes, in the person who was



Online LibraryM. E. DunlapAbridgment of elementary law, embodying the general principles, rules and definitions of law, together with the common maxims and rules of equity jurisprudence, embracing the subjects contained in a regular law course, collected and arranged so as to be easily acquired by students, comprehended by j → online text (page 27 of 43)