such offences. Servants who made away with chattels given to them on behalf of their masters were, as a rule, not punishable. Yet acting upon puzzling refinements, the criminal law punished a servant who had "determined his original, lawful, and exclusive possession."

In consequence of a startling decision that a banker's clerk who had appropriated to his own use notes paid across the counter to a customer's account could not be punished, the 39 Geo. III. c. 85 was passed, and it was made theft for a servant or clerk to embezzle money or goods received or taken into possession, "for or in the name, or on the account of his master." The cases on this subject, which involve many subtle distinctions, will be found in Russell on Crimes, vol. ii. The present law on the subject is contained in 24 & 25 Vict. c. 96. The 67th section provides 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 exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping.

Whosoever, being a clerk 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 employed, 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 years, or to be imprisoned for any term not exceeding two years, with or without 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 if it be proved that he ought to have been indicted of larceny, or vice versa. Notwithstanding these amendments, the law is still disfigured by embarrassing subtleties. See R. v. Prince (1868), 1 C. C. R. 150, as to distinction between servants having general authority and those 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: Bishop's 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 armis. It implied, no doubt, 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 Edw. III., 22. Ass. 41,-the action of trespass was frequently used in circumstances to which it was not obviously applicable. As late as the reign of Elizabeth it was still undecided whether a master could maintain trespass against a servant for taking and carrying away his goods which were in the custody of the servant, who was employed in his master's shop. The Court decided in Bloss v. Holman, Owen 52, that trespass lay in these circumstances. See as to master's possession, Hall v. Davis (1825), 2 C. & P. 33. On the other hand, as against a mere wrongdoer, a servant seems in some cases to have had, and, it may be, still has, such possession as enabled him to maintain trespass against strangers: Moore v.

Robinson (1831), 2 B. & Ad. 817, decided upon Pitts v. Paince, 1 Salk. 10; Mikes v. Caly (1700), 12 Mod. 381. In all such cases, however, it would appear that the servant was at a distance from his master and had to act according to his own discretion. (See Pollock and Wright on Possession, 3rd ed., p. 139; Chitty's Pleading, i. 196.)

4. For many other purposes the possession of the servant is that of the master. Thus in bankruptcy it is held that goods which are in the possession of a servant are within the order and disposition of his master, and as such pass to his creditors. This is illustrated by Hoggard v. Mackenzie (1858), 25 Beav. 493. A Scotch firm established a branch in London, which was wholly conducted by an agent and manager at a fixed 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 firm having become bankrupt, it was held that the goods passed to the assignees unaffected by the lien. See, however, Ex parte Hidden, Re Hooper (1860), 3 L. T. (N. S.) 386. When a son had possession of certain goods as a servant of his father, and for the purpose of carrying on business for his father's benefit only, it was held that the goods did not pass to the son's assignees under the 21 James I. c. 19; Stafford v. Clark (1823), 1 C. & P. 24. See the curious case, Jackson v. Irvin (1809), 2 Camp. 48, where a warrant under a fi. fa. against a person was directed to his servant and another person as special bailiffs; and Ex parte Majoribanks (1847), De Gex, 466, as to the effect of joint possession of goods by servants of bankrupt and owner of goods.

There is no power under s. 27 of the Bankruptcy Act, 1883, to order a servant to produce documents, without the master's authority: Re Higgs (1892), 66 L. T. (N. S.) 296.

CHAPTER V.

PARTIES TO THE CONTRACT.

ANY one who is of the age 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).

English law scarcely recognises the distinction known to and of so much importance in Roman law between liberales operæ and illiberales operæ (b), 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 (c), and the main conclusion 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

(a) Smith's Master and Servant, 1; Wood's Master and Servant, 8. These cases are specially considered in this chapter, infra.

(b) Windscheid, ii. s. 404.

(c) (1863), 13 C. B. N. S. 677; action on a promise, in consideration of services as counsel, held not to lie. See remarks on this case in Pollock on Contracts, 7th ed., 669; also Mostyn v. Mostyn (1870), L. B. 5 Ch. 457; and Robertson

v. McDonagh (1880), 14 Cox, C. C. 469. As to the right of medical practitioners to sue for fees, see Medical Act of 1858, and Apothecaries Act, 55 Geo. III. c. 194; and as to the state of the law before the passing of the former Act, see Veitch v. Russell (1842), 3 Q. B. 928. "The physician has a claim, usually recognised, to remuneration for his services; but he has no legal title to it." He could, however, have made a contract with respect to it.

mutually incapable of making any contract of hiring and service concerning advocacy in litigation.'

A person who is under a binding contract to serve A. for a certain time cannot, without A.'s consent, enter into a binding contract with B. for the same period. "One who has contracted," says Lord Ellenborough in R. v. Norton (d), "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." 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). In R. v. Norton (d) it was held that a deserter from the King's service could not be "lawfully 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 (f).

The position of servants and apprentices who enlist in the Army is now governed by sect. 96 of the Army Act, 1881 (44 & 45 Vict. c. 58); and the operation of this section is extended to militia recruits by sect. 9 of the Militia Act, 1882 (45 & 46 Vict. c. 49).

In regard to seamen volunteering into the Navy, see Merchant Shipping Act, 1894, ss. 195-197. By sect. 196, sub-sect. (1), a proportionate part of wages down to the time of entry must be paid by the master. By sect. 195 seamen are allowed to leave their ships to enter the Navy, and "all stipulations introduced into

(d) (1808), 9 East, 206; R. v. Hindringham (1796), 6 T. R. 557. A., an infant indentured as an apprentice to B.; during the apprenticeship he entered the Navy with the consent of his master; but his articles were not delivered up. After quitting the Navy, and before the expiration of the apprenticeship, he hired himself to C. Held, that A., not being sui juris at the time, could not enter into a legal contract; and that the service in the Navy did not discharge the indenture. As to difference between contract with soldier and one with infant, R. v. Chillesford (1825), 4 B. & C. 94, 100.

(e) R. v. Beaulieu (1814), 3 M. & S. 229. A soldier, though not "lawfully hired " within the meaning of the statute, could have recovered wages for his services. The Court refused to find

such a hiring and service as would give a settlement unless the master had an absolute right to the services for the whole time. On the other hand, it was held that hiring for a year of a militiaman, if the fact of his being such were made known to the master at the time of hiring, gave a settlement: R. v. Westerleigh (1773), Burr. S. C. 753; R. v. Winchcomb (1780), 1 Doug. 391; R. v. Taunton (1829), 9 B. & C. 831; R. v. St. John (1829), 9 B. & C. 896; R. v. Elmley Castle (1832), 3 B. & Ad. 826; R. v. St. Mary-at-the Wall (1834), 5 B. & Ad. 1023; R. v. Witnesham (1835), 2 A. & E. 648 (case of a member of a Volunteer corps under 44 Geo. III. c. 54).

(f) See Chap. II., supra.

any agreement whereby any seaman is declared to incur any forfeiture, or be exposed to any loss in case he enters into his 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 207."

(A.)-Infants and Young Persons.

Contracts of hiring and service by infants-that is, by persons who have not attained the age of twenty-oneare binding on them, provided they are not proved to be to the prejudice of the infants (g).

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 & 38 Vict. c. 62) 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 supplied 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, which 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 v. Mullis (h)—an action for breach of

(g) Coke on Litt. 78 b.

(h) (1878), 3 C. P. D. 439; кее also Northcote v. Doughty (1879), L. R. 4 C. P. D. 385; Ex parte Kibble (1875), L. R. 10 Ch. 373. As to what will

amount to a ratification of a contract by an infant, see Cornwall v. Hawkins (1872), 41 L. J. Ch. 435; infant entered into service of milk-seller, and covenanted not to carry on same trade;