« EelmineJätka »
[even carriages, pictures, utensils, and other household implements, may be included (1), provided the custom to include them be strictly proved (m). The antient jewels of the Crown are also said to be heir-looms (n); and all such descend upon the heir, or other the person entitled to the inheritance for a freehold estate therein, whereas all chattels personal whatsoever (other than those of this peculiar character) vest in the personal representatives of the deceased owner (o). Also, it is said, that heir-looms, though mere chattels, cannot be devised away from the inheritance by will ; such a devise is void, even when made by the tenant in fee simple. For though the owner might, during his life, have sold or disposed of them, as he might of the timber of the estate, since, as the inheritance was his own, he might mangle or dismember it as he pleased ; yet, they being at his death instantly vested in the heir, the devise of them (which is subsequent, and not to take effect till after his death) is postponed to the custom, whereby they have already descended (p).
Other personal chattels there are, which also descend to the heir in the nature of heir-looms, as a monument or tombstone in a church, or the coat-armour of his ancestor there hung up, with the pennons and other ensigns of honor, suited to his degree. In this case, albeit the freehold of the church is in the parson, and these are annexed to that freehold, yet cannot the parson or any other take them away or deface them, but is liable to an action from the heir (). Pews in a church are somewhat of the same nature, which may descend by custom immemorial from the ancestor to the heir (r).]
Once more, the term “heir-looms” is applied, in ordinary speech, in a still wider sense, so as to include, for example, pictures, plate, furniture, and the like,
(l) Co. Litt. 18 b, 185 b.
(p) Co. Litt. 185 b.
(9) Co. Litt. 18; Corren's Case, 12 Rep. 105.
(ro) Corren's Case, u'ii supru.
directed by will or settlement to follow the limitations, thereby made, of some family mansion or estate. But the word is not then employed in its strict and proper meaning ; nor is the disposition itself, beyond a certain point, effectual. For the articles will, in such a case, belong absolutely to the first person who, under the limitations, would take a vested estate of inheritance in them, supposing them to be real estate. And the person so becoming entitled to them may clearly dispose of them by his will ; and if he die intestate, they will pass to his personal representative, and not to his heir (s).
3. Animals fera naturæ (such as deer in a real authorized park, fishes in a pond, doves in a dove-house, etc.) are ranked as parcel of the freehold, by the general law of the realm, because they are necessary to the well-being of the inheritance (t). And when they are confined upon a man's estate, but not domesticated, they pass, if he were seised of an estate of inheritance, to his heir or devisee ; and if he were possessed for a term of years, they pass to his executor or administrator (u). But if domesticated, they become goods and chattels, equally with animals naturally tame; in which latter case, they belong, in every instance, on the death of the owner, to his personal representative.
(8) Gower v. Grosvenor (1740), 5 Madd. 337 ; Barnard. Ch. Rep. 54; Lord Scarsdale v. Curzon (1859), 1 J. & H. 40. But, subject to the rule against perpetuities such a person may be restrained
from alienating them till he attains his majority.
(t) 2 Bl. Com. 427.
(u) Co. Litt. 8 a ; Liford's Care (1614), 11 Rep. 50 ; Morgan v. Abergavenny (1849), 8 C. B. 768.
OF RIGHTS IN PRIVATE RELATIONS.
OF MASTER AND SERVANT.
We now proceed to consider the rights of persons in their private relations, the principal relations in private life being
(1) the relation of master and servant ; (2) the relation of husband and wife; (3) the relation of parent and child ; and, incidentally
to the latter, (1) the relation of guardian and ward.
First, The relation of MASTER AND SERVANT.-Slavery (it need hardly be said) does not, and cannot (a), exist in England, or, in fact, in any of the territories which are within the King's dominions (6); but the English law sanctions and upholds the mere obligation of service, the engagement, that is to say, of a man or woman, sui juris and free to contract, to enter for pay into the service of another, for such period as may be mutually agreed upon. Even a contract to serve for life is not invalid (c). But a contract of personal service will not be specifically
(a) Smith v. Brown (1706), Salk. 666; Somersett's Caxe (1772), 11 St. Tr. 340 ; Lofft, 1 ; and see 3 & 4 Edw. 6 (1550), c. 16.
(6) 3 & 4 Will. 4 (1833), c. 733, S. 12.
(c) Wallis v. Duy (1837), 2 M. & W. 273.
enforced ; and it is not competent to the parties to attach thereto any servile incidents, such as unlimited rights of personal control and correction (d).
We will first deal with certain classes of servants and the peculiar rules relating to their service.
Menial servants are so called from living intra munia, within the house or its curtilage, such as a domestic servant, a coachman or groom, a gardener living in a house within his master's grounds (e). Although it is usual to engage such servants at a fixed amount of wages by the year, there is generally no express stipulation as to the time that the service is to last. In such cases the hiring is thus understood, that it is by the year, but that either party may at any time determine it at pleasure, upon giving a month's notice, for which a month's wages (on the part of the master at least) are considered as an equivalent (). A custom to go at the end of the first month of service on giving notice during or at the end of the first fortnight is good, if proved by sufficient evidence ; but it is not so notorious that the court would take notice of it in the absence of such evidence (9). A clerk or governess is not a domestic servant ; and he or she, if engaged without express agreement as to time, cannot be dismissed (save for misconduct) without a reasonable notice, expiring, or not expiring, at the end of the current year of the service (h) ; for it may be taken (with regard to the time at which the notice must expire) that there is no inflexible rule of law on the subject, but that each case must depend on its own circumstances (i).
A domestic servant may be dismissed on the ground of misconduct or wilful disobedience at any time, and without
(d) Daries v. Davies (1887), 36 Ch. D. 359, at p. 393.
(e) Nowlan v. Ablett (1835), 2 C. M. & R. 54.
(f) Voulan v. Ablett, ubi supra; Gordon v. Potter (1860), 1 F. & F. 644.
(9) Moult v. Halliday,  1 Q. B. 125.
(h) Todd v. Kerrich (1852). 8 Exch. 151 ; Brouw v. Symons (1860), 8 C. B. (N.s.) 208.
(i) Fairman v. Oakford (1860), 5 H. & N. 635.
either notice or payment of wages, in the same way as any other servant ; and in such a case the servant will not be entitled to any wages even in respect of the time which has elapsed since the last proper day of payment (k).
In the absence of special agreement to the contrary, a domestic servant is entitled to be properly fed and lodged by his or her master or mistress ; and if prevented for a time, by sickness or other accident, from the performance of his or her duties, this does not justify the master or mistress in dismissing the servant without such notice or wages as might otherwise be claimed ().
The second species of servants are Labourers employed in agriculture, and Workmen engaged in trades, manufactures, and the like. These may be engaged for some specified period ; and, when so engaged, they cannot, in yeneral, terminate their contracts by giving only a month's notice. The justices of the peace have, in a variety of cases, jurisdiction to determine complaints between workmen and their employers, and to arrange by arbitration, under their direction, such differences as admit of that mode of settlement (m); and the justices, when sitting “as a court of summary jurisdiction,” have also now conferred upon them, by the Employers and Workmen Act, 1875, a concurrent civil jurisdiction with the county courts, in disputes between parties standing in that relation to each other, where the sum claimed does not exceed 101. (n). Under the Conciliation Act, 1896, which embodies previous legislation on the subject, boards established for the purpose of settling disputes between employers and workmen by conciliation or arbitration may be registered at the Board of Trade ; and the Board
(k) Spain v. Arnott (1817), 2 Stark. 256.
(l) Cuckson v. Stone (1859), 1 Ell. & Ell. 248.
(m) See Trust Act, 1831; Master and Workmen (Arbitration) Act, 1837; Hosiery Acts, 1843 and
1845 ; Silk Weavers Act, 1845 ; 30 & 31 Vict. (1867) c. 130; Conspiracy Act, 1875.
(n) 38 & 39 Vict. c. 90, 8. 4; Hindley v. Haslam (1878),3Q. B.D. 481.