Page images
PDF
EPUB

responsibilities of a bailee, (c) for a man does not become a guest at an inn by the mere delivery of goods to the landlord to keep. It has been said, however, that a man may become "a guest by leaving his horse as much as if he had staid himself, because the horse must be fed, by which the innkeeper has gain, otherwise if he had left a trunk or a dead thing."(d) "If an host invite one to supper, and, the night being far spent, invites him to stay all night, if he is afterwards robbed, yet shall not the host be charged, (as an innkeeper,) for this guest was no traveller."(e) But the length of time that a man may remain at an inn does not affect or alter his character as a traveller, or in any way qualify or vary the common law liability of the innkeeper. Thus "if A. comes with goods to an inn in London, and stays there for a week, month, or longer, and is there robbed of them, he shall have an action against his host; though, perhaps, being at the end of his journey, he cannot then be said to be transeuns according to the writ in the register."(f) But if a man takes apartments in an inn for a term, by the week, month, or year, for example, or if he resides in the inn under a special contract for his bed and board, he is not in contemplation of law sojourning at the inn as a traveller, but rather in the character of a lodger at a private boarding-house. If, therefore, he is robbed in the house, he cannot charge the landlord as an innkeeper, but only as an ordinary lodging-house keeper.

Liability of the GUEST.-Innkeeper's LIEN on the goods and chattels of the guest.-As the law imposes upon the common innkeeper the burthen of receiving and taking care of the goods and chattels of all travellers and guests who alight at, and take up their abode within, the inn, it gives him a right to retain such goods and chattels as a pledge for the payment of the reckoning of the guest.(g)

If a horse is put up in the stables of the inn by a guest, the innkeeper has a lien on the animal for its keep, whether the horse be the property of the guest or of some third party, from whom it has been fraudulently taken, or stolen, unless the innkeeper knew at the time he received the guest that he was not the true owner of the horse.(h) But the innkeeper has no right to detain the property of the guest if he has previously agreed to give the latter credit for his entertainment; (i) nor can the innkeeper detain goods as

(c) Gelley v. Clerk, Cro. Jac. 188; 5 T. R. 274, per Buller J.

(d) York v. Grindstone, 1 Salk. 388; 2 Raym. 866. Lane v. Cotton, Com. 104.

(e) Bac. Abr. (Inns,) C. 5. (f) Ib.

g) York v. Grindstone, I Salk. 388. Ency. du Dr. (Auberge) 25. Jones v. Thurloe, 8 Mod.

172. Rosse v. Bramsteed, 2 Rolle, 438. Thomp son v. Lacy, 3 B. & Ald. 285. But he has no right to detain the person of the guest, Sunbolf v. Alford, 3 M. & W. 248.

(h) Yorke v. Grenaugh, 2 Raym. 866. Skipwith v. ,1 Bulst. 170. Johnson v. Hill,

3 Stark. 172.

(i) Jones v. Thurloe, 8 Mod. 172, 173.

[ocr errors]

a security for the payment of the reckoning for beer and ale drunk by a guest, unless the requirements of the stat. 11 & 12 Wm. 3, c. 15, as to selling beer in stamped vessels, and rendering an account of the number of quarts and pints drunk, have been complied with.

The innkeeper holds the chattels detained by him in the nature of a pledge, so that if he once permits his guest to take them away, and so relinquishes the pledge, he cannot afterwards retake them. Therefore, if the innkeeper allows the guest to remove his horses after a debt has been in curred for keeping them, and they are afterwards brought to the inn and a new debt contracted, the innkeeper can detain them for the latter portoin of the debt, but not for the former.(7) And it is said that if several horses are brought to an inn by the guest, each is a pledge for its own keep, but not for the keep of the others, so that if the hosteller permit him to take away all but one, he cannot retain that one until the expense of keeping the whole is paid. (m)

If the guest takes the chattel away without the hosteller's consent, the latter may take it on a fresh pursuit as a distress rescued if he follow promptly, but not otherwise. (n)

(1) Jones v. Thurloe, 8 Mod. 172, 173. Jones v. Pearle, Str. 556, 557.

(m) Moss v. Townsend, 1 Bulstr. 207.
(n) Rosse v. Bramsteed, 2 Ro. 438.

BBB

736

CHAPTER XXIII.

CONTRACTS FOR THE LETTING AND HIRING OF WORK

AND LABOUR.

SECTION I.-Master and servant.-Of the nature and authentication of a contract of hiring and service-Implied contracts of hiring and service-Service with relations-Of the duration of the term of hiring and service-Yearly hirings of domestic servants defeasible by custom-Indefeasible yearly hirings-Hiring and service by the month or week-General duties, obligations, and liabilities of the master and servant-Payment of wages-Dissolution of the contract-Dismissal of the servant for misconduct-Warning and notice to leave.

SECTION II.-Contracts of apprenticeship.-Nature and requisites of the contract-Liabilities of the parties thereto-Liability of the master to support his apprentice in sickness-Dissolution of the contract-Cancellation of the indentures- Discharge of the apprentice by award of justices-Parish apprentices.

SECTION III.-Letting and hiring of work by the great, or task-work.-Work and service giving a right to remuneration-Honorary offices and employments--Services by arbitrators, barristers, and physicians-Liabilities of the employer or letter out of task-work-Indivisible work-Divisible and apportionable services-Destruction of the work before payment-Non-performance of work by a time specified-Approval of work before payment-Useless and defective work-Duties and liabilities of task workmen-Of the preservation and redelivery of chattels bailed to workmen to be manufactured or repaired-Liabilities of warehousemen and wharfingers, agisters of cattle, factors, and bailiffs.

SECTION I.

MASTER AND SERVANT AND APPRENICE.

Contracts for the letting and hiring of work and labour, services and skill. The contract of letting and hiring relates as frequently to human labour and skill, care, and attention, as to moveable and immoveable property, realty, and personalty; the services of workmen, artificers, and labourers being daily hired to be employed in domestic affairs, in the cultivation of land, in the building of houses, in the manufacture of materials furnished to be worked up, and upon chattels which have been bailed to

the workman to be mended or repaired.(a) In order to constitute a contract of hiring and service, there must be a mutual engagement binding on both the employer and the employed, for the one to employ and remunerate, and the other to serve. (b) A covenant on the part of a workman to work, and on the part of the employer to pay him a sum of money weekly during the two years following the date of the contract, and an additional sum weekly during the year next following, and to receive him into partnership at the expiration of three years, does not amount to a contract of hiring and service for the term of three years, or for any fixed period of time, and the employer, consequently, is not responsible upon the contract for discharging the workman from his service, although he would be bound to make good the weekly sums so long as the latter was ready and willing, and offered to perform the work agreed to be done, and was prevented by the employer from doing it. (c)

If a servant covenants or agrees with an intended employer to serve him for a term of years, and the latter covenants or promises to pay so much a week for such service, the law does not imply from the covenant or agreement to serve a corresponding covenant to employ, and the master or employer may, consequently, in the absence of an express covenant or agreement on his part to retain and keep the servant in his employ, dismiss him at any time without warning or notice, and refuse to provide him with further employment. (d) When, however, mutual covenants or promises have been exchanged between the parties, the contract is complete, so that the right to the labour and service at once passes to the employer, and the right to the benefit of the retainer, and employment to the servant or undertaker of the work, so that the former is entitled to an action against the latter if he neglects to enter upon and complete his task, and the latter to an action against the former if he neglects to provide the work, and furnish the workman with the means of earning the hire.(e)

Authentication of the contract.-A contract of hiring and service need not be authenticated by writing, unless the hiring exceeds a year in duration, (ante, 97,) and if reduced into writing it need not be stamped, if it be a contract for the hire of "labourers, artificers, manufacturers, or menial servants," (ante, 126,) and not a contract of apprenticeship. (f)

(a) Ostendit definitio, duo esse genera locationis, rerum unam, alteram operarum seu factorum. Vin. Com lib. 3, tit. 25, 757; Pandect. Pothier, lib. 19, tit. 2, Art. 1.

(b) Lees v. Whitcomb, Sykes v. Dixon, ante, 25, 26.

(c) Aspdin v. Austin, 5 Ad. & E., N. s., 671.

Ante, 205.

(d) Dunn v. Salyes, 5 Ad. & E., N. s., 685. Williamson v. Taylor, ib. 175.

(e) Dalt. Just. 93, c. 31; ante, 205.

(f) Rex v. St. Paul's, Bedford, 6 T. R. 454,

post. 748.

Implied contracts of hiring and service.—In the absence of an express contract between the parties, a hiring may be presumed from the mere fact of the service, (ante, 215,) unless the service has been with near relations as presently mentioned. If a man, for example, serves a stranger in the capacity of a clerk, or of a menial servant, or servant in husbandry, for a continued period, the law presumes that the service has been rendered in fulfilment of a contract of hiring and service, and if the party has served without anything being said as to wages, the law presumes that the parties contracted for customary and reasonable wages. (g)

Service with RELATIONS.—But if the service has been with the parent or uncle, or other near relation of the party serving, a hiring cannot be implied or presumed from it, but an express hiring must be proved in order to support a claim for wages, for the law regards services rendered by near relations to one another as gratuitous acts of kindness and charity, and does not presume that they are to be paid for unless there is an express contract to that effect. (h) And if a poor person is taken in out of charity and provided with food, lodging, clothes, and necessaries, and set to work, no contract of hiring and service is implied therefrom, however long the party may continue to serve. (i)

Of the DURATION of the TERM of HIRING and SERVICE

Yearly hirings DEFEASIBLE by CUSTOM.-Hiring of domestic servants. -A general hiring of menial or household servants, such as cooks, scullions, house-maids, footmen, butlers, coachmen, grooms, where no time is mentioned for the duration of the service, is a hiring for a year, and so on from year to year, defeasible by custom and usage, at the option of either of the parties, on giving a month's warning, or paying or tendering a month's wages. (k) If the contract is put into writing, the customary power of defeasance is impliedly annexed to the express terms of the written agreement, unless the custom is excluded by express words.(7) A servant may be a menial servant, and as such clothed, with this im

(g) Lord Ellenborough, C. J., 15 East, 454. Phillips v. Jones, 1 Ad. & E. 333.

(h) Davies v. Davies, 9 C. & P. 87. Gregory Stoke v. Pitminster, Botts. P. L. C. 206, case 269. Rex v. Sow, 1 P. & Ald. 181. Rex v. St. Mary, Guildford, 2 Bott. 209, c. 273. Cald. 521. Rex v. Stokesley, 6 T. R. 757.

(i) Rex v. Weyhill, Burr. 491; 1 W. Bl. 206, s. c.; 2 Bott. 207, case 271. As to charitable and gratuitous employments, see 7 East, 373.

Rex v. Sow, 1 B. & Ald. 178. Sands v. Leak, 2 Roll. rep. 268. Alfred v. Marquis Fitzjames, 3 Esp. 3.

(k) Littledale & Patteson Js., 5 B. & Ad. 908, 909; 3 N. & M. 180, 181; 2 N. & P. 142, 143; Ld. Denman, 5 Jur. 870. Robinson v. Hindman, 3 Esp. 235. Archard v. Hornor, 3 C. & P. 351.

(1) Johnson v. Blenkensop, 5 Jur. 870.

« EelmineJätka »