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master and apprentice.” The words “teach" or "instruct," or the like, need not be employed. The Court will judge from the whole contract whether the substantial and principal object of the contract be to hire and serve, or to teach and learn ; in other words, to create the relation of master and servant, or that of master and pupil (o). The payment of a premium is strong evidence of apprenticeship, but it is not decisive; nor will the absence of a premium be proof that the contract is one of hiring and service (p). "Where teaching
) on the part of the master," said Taunton, J., in R. v. Creliton (9), " or learning on the part of the pauper is not the primary, but only the secondary, object of the parties, that will not prevent (where work is to be done for the master) the contract being considered one of hiring and service” ().
Servant and Tenant.
The same person may be at once the servant and the tenant of another; there is no incompatibility between the relations (8). But in law, the possession of the servant is that of the master; and from this principle follow important consequences with respect to the occupation of premises by servants.
(1.) As regards menial or domestic servants, or officials occupying premises belonging to their nasters or employers. The cases which are cited below show that when a servant or an official occupies a house, or room, or land for the purpose of his service, and for the more convenient discharge of his duties, the relation of landlord and tenant is not created; the servant or official has no estate or interest in the premises or land (t); and he did not acquire a settlement by
(0) R. v. King's Lynn (1826), 6 B. & C. 97.
(P) Bayley, J., in R. v. King's Lynn.
(9) (1831) 2 B. & A. 493.
(r) See Appendix A to this chapter.
(s) Cockburn, C.J., in R. v. Spurrell (1865), L. R. 1 Q. B. 72 ; 35 L. J. M. C. 74. As to steward being lessee of employer, Selsey v. Rhoades (1824), 2 S. & S. 49.
(1) R. v. South Newton (1830), 10 B. & C. 838.
such occupation. “If the occupation of the servant be neces
. sary to the service,” said Cockburn, C.J., in R. v. Spurrell (u), “then I think his occupation is the occupation of the master, although the remuneration which the servant receives is the less on account of his having the advantage of premises, or a house for the purpose of his habitation. On the other hand, if the occupation be not necessary to the service, then the fact that the advantage of the occupation is part of the remuneration of the service will not render that occupation less an occupation qua tenant than it would have been if the man had paid rent.” Hence it has been held that a servant who was wrongfully dismissed, and whose chattels had been removed to a place where he might have taken them but did not, cannot recover damages for injury to his goods by the weather (w). The relation of master and servant having been broken, though wrongfully, the former had a right to remove the furniture.
It may be added, that a servant residing in premises assigned to him for residence by his master, cannot dispute the title; and that having got in as a licensee, he must first give up possession if he intends to do so (y).
When a servant is allowed to remain in a house or room long after the termination of the relation of master and servant is at an end, it may be a question whether a tenancy is not formed. But no tenancy, not even a tenancy at will, is to be presumed from the mere circumstance that a servant does in fact remain in possession for a short time after the termination of the service. Probably the rule is accurately stated in Kerrains v. State of New York (+), in which, in answer to a contention that immediately upon the termination of service a tenancy at will arose, the Court said, “In order to have that effect, the occupancy must be sufficiently long to warrant an inference of consent to a different holding. Any considerable delay would be suffi
(u) See note (s).
(7) Lake v. Campbell (1862), 5 LT. N. S. 582 ; Doe dem. Nicholl v. McKaeg (1830), 10 B. & C. 721.
(y) Doe dem. Willis v. Birchmore (1839), 9 A. & E. 662; Doe dem. Johnson v. Baytup (1835), 3 A. & E. 188.
(z) 15 Sickle, 225.
cient, but I can see no principle which would change the occupant eo instante from a mere licensee to a tenant."
(2.) Officers or servants of Government claiming to be exempted from the payment of rates. Persons who occupy property belonging to the Crown merely as servants of the Crown, and solely for the purposes of their duties, are exempt. But if the occupation be more than what is reasonably required for the performance of their duties, they are liable to be rated in respect of the excess (a).
(3.) As regards the right to vote, the rule is thus stated in Rogers on Election Law” (6): "Where residence in an official or other house is necessary or conducive to the efficient performance of the duty or service required, and is either expressly or impliedly made a part of such duty or service, there the relation of landlord and tenant is not created. But where, without any obligation to reside in a particular dwelling, an officer or servant chooses to occupy a house which is provided for him, the circumstance that he receives less salary or wages in consideration of the benefit he derives from occupying a house convenient for the discharge of his duty or service, or that he would have an allowance for rent or lodging-money if he did not occupy it, will not prevent him from occupying as tenant" (c).
(4.) Very much the same question has arisen in regard to burglary: it being requisite to state, in an indictment for that crime, who is the owner of the premises which have been broken into. It has been held that if a public servant or other person reside in royal palaces or apartments which belong to the Crown, the apartments cannot properly be described as his; they are the property of the Crown. Thus, when three persons were indicted for breaking into the lodgings of Sir Henry Hungate at Whitehall, and there stealing certain goods, the judges thought that the indictment must be laid for breaking into the king's mansion called
(a) Earl of Bute v. Grindall (1786), 1 T. R. 338. R. v. Matheus (1777), Cald. 1; Portland v. St. Margaret, Cald. 3 n.; R. v. Ponsonby (1842),
3 Q. B. 14. Appendix B.
(6) 13th ed. p. 54.
(c) Smith v. Seghill (1875), L. R. 10 Q. B. 422.
Whitehall(d). So, too, in the case of the Invalid Office at Chelsea. It was a Government office, the upper part of which was occupied by William Bunbury, the rent and taxes of the whole house being paid by the Government. It was described in an indictment as Bunbury's dwelling-house. This was held to be a misdescription (e). The general rule seems to be, that premises occupied by servants of a public company must be described as the company's premises. Thus a house belonging to a company in which S. and many other persons as officers of the company had separate rooms, was held to be not properly described as his mansionhouse (f). A house which is detached from a workhouse, and is occupied by the governor, must not be described as his dwelling-house (g). Of course, a servant may be a tenant, and the house which he occupies may be properly described as his when he actually pays rent, and when his master could distrain, as in R. v. Jarvis (h). So, too, when a toll-keeper was employed by the lessee of the tolls to be taken at the gates, and when the house was unconnected with any premises of the lessee, who had no interest in it (i); or when a gardener lived in a cottage quite apart from his master's house, and kept the key of it (I).
Servants or Partners.
Clerks, salesmen, travellers, sailors, and, in fact, servants of all sorts, are often employed on the terms that they share in the profits of a business. Seamen and fishermen are occasionally paid in whole or in part for their services by a proportion of the profits of the adventure, voyage, or season. Are
(d) i Hale's P. of C., 522.
(c) R. v. Peyton (1784), 1 Leach, 324.
() R. v. Hawkins, Foster, 38.
(g) R. v. Wilson (1806), R. & R. 115. So, too, in the case of a stew. ard of a club ; R. v. Ashley (1843), 1 C. & K. 198 ; see, however, R. v.
Margetts (1801), 2 Leach, 930, and R. v. Witt (1829), 1 Mood. C. C. 248.
(h) (1824), 1 Mood. C. C. 7.
(i) R. v. Camfield (1824), 1 Mood. C. C. 42.
(k) R. v. Rees (1836), 7 C. & P. 568. See Appendix B.
those who are thus remunerated partners ? The question may arise between persons sharing in the profits; and in this case the rule is clear, that the whole scope, purport and intention of the agreement must be looked at, in order to determine whether a partnership is constituted. The mere circumstance that the parties to an agreement state therein that it is not to constitute a partnership, or that they insert a reference to the 28 & 29 Vict., c. 86, will not prevent the creation of a partnership if the elements of partnership are to be found in the agreement. In Ex parte Delhasse (l), a person who advanced £10,000 had a right to a specified percentage of profits, subject to liability to share in losses. He had also a right to have accounts furnished to him. Though it was expressly stated that the sum was advanced by way of loan, under the first section of the 28 & 29 Vict., c. 86, the Court held that a partnership existed. Nor will it suffice to prevent the creation of a partnership that the parties intended that all the incidents of a partnership should, in fact, exist, but did not suppose that a partnership would, in law, be the result. In Pawsey v. Armstrong, where there was an agreement that the plaintiff should share the profits and loss, Mr. Justice Kay observed, with reference to the plaintiff's contention, that it was not intended that he and the defendant should be partners: “I confess, in my opinion, the agreement to share profit and loss is quite conclusive of the relation between two persons who do so agree, and it is not possible for one of them afterwards to say, 'I was not a partner,' any more than it would be possible for a man and a woman who had gone through the formal ceremony of marriage before a Registrar, and had satisfied all the conditions of the law for making a valid marriage, to say that they were not man and wife, because at the same time one had said to the other, * Now, mind, we are not man and wife.' Or, to put another illustration, suppose a man allowed his friend to invest £10,000 consols in his name, and said, 'I will hold the consols
(1) (1878), L. R. 7 Ch. D. 511 ; 47 L. J. Bktcy. 65.