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R. v. Wortley (1851), 21 L. J. M. C. 44. Defendant entered into an agreement "to take charge of the glebe-land of the Rev. J. B. B. Clarke; his wife undertaking the dairy and poultry, &c., at 158. a-week, till Michaelmas, 1850, and afterwards at a salary of £25 a year and a third of the clear annual profit, after all expenses of rent, rates, labour, interest on capital, &c., are paid, on a fair valuation made from Michaelmas to Michaelmas. Three months' notice on either side to be given, at the expiration of which time the cottage to be vacated by Wortley"; defendant and his master not partners inter se.
Andrews v. Pugh (1854), 24 L. J. Ch. 58. Plaintiff employed the defendant to obtain orders for him, the plaintiff allowing to the defendant a commission of 15 per cent. on the gross amount of profits. The defendant carried on the business with the plaintiff, but his name was not joined with that of the plaintiff; no partnership
Cox v. Hickman (1860), 8 H. of L. 267. S. & S., having become embarrassed, assigned their property to trustees, and empowered them to carry on the business, and to divide the income rateably among the creditors. Held, no partnership created so as to make creditors liable to third parties.
R. v. Macdonald (1861), 31 L. J. M. C. 67. Cashier and collector of a firm, received in addition to fixed salary a certain per-centage on profits; was not liable to losses, and had no control over business; a servant.
Ross v. Parkyns (1875), L. R. 20 Eq. 331; 44 L. J. Ch. 610; 30 L. T. 331; 24 W. R. 5. Agreement between plaintiff and defendant to carry on underwriting business in the name of defendant; all policies, losses, and
averages to be signed and settled by defendant, or by the plaintiff as his agent. Plaintiff to be paid or allowed a salary or sum of £150 per annum, and one-fifth of the profits; plaintiff to keep the books of accounts, he obtaining such assistance from time to time as he may find necessary, subject to the approval of the defendant; plaintiff not to bear any loss; contract, one of hiring and service and not of partnership.
See also Bullen v. Sharp (1865), L. R. 1 C. P. 86; and Mollwo v. Court of Wards (1872), L. R. 4 P. C. 419.
IN Roman law the hiring of land, and the law of master and servant are alike treated under the head of locatio-conductio. Contracts for the labour and services of freemen for reward fell under the subdivisionslocatio-conductio operarum or operis. As the landlord was the locator of a farm and the lessee the conductor, so the servant was the locator operarum, and the master the conductor operarum. If a workman had to do something in respect of goods or chattels supplied to him; e.g., if he had to weave materials into cloth, he was called conductor operis, and the owner of the materials was locator operis.
This highly artificial classification is maintained in systems of law which are closely connected with the Civil Law; see French Code Civil III., 8, i., and Pothier, Louage, 393. This classification is preserved in the Scotch law; and it seems to have led to the borrowing from the law of landlord and tenant of certain rules and applying them to the law of master and servant. Probably the doctrine of tacit relocation has been carried to a degree which would not have been done if Scotch judges had not had the decisions in regard to landlord and tenant present to their minds. This classification is to be found in some modern codes,-e.g., it is found in the Code of Louisiana; see III., 9, i.-though the relation of master and servant is also dealt with under head of "Persons," I., 6.
A large number of the present varieties of contracts of service are almost unknown in a simple state of society. In early works, such as Viner's "Abridgment," almost the only contracts of work and labour treated of are contracts between master and servant. See Bacon's "Abridgment," V. 333, and Blackstone I., 14. In a more complicated society this form of contract became less important; contracts for work and labour, contracts of affreightment, or contracts of agency take its place. In one of the most recent measures of codification, the "Indian Contract Act," the relation of master and servant is not dealt with separately; it is regarded as a form of agency. In the Civil Code of the State of New York, the relation is chiefly treated of under the head of "Employment," along with factors, brokers, carriers, agents, &c.
No good seems to be gained by merging the contracts of hiring and service in contracts of letting land. There are few properties of importance common to the two contracts. Nor is it expedient to merge the former in contracts of agency. Part of the law of master and servant relates to a certain status, and may be suitably dealt with along with such conditions as guardian and ward, parent and child, husband and wife; see Bentham's "Principles of the Civil Code," vol. i. 343. This part, which in early times was the most important, still survives. Another part, which has assumed pre-eminence in modern times, belongs to the law of agency. In this book it has been found almost impossible to keep separate the contracts of hiring and service properly so called from certain contracts of work and labour. Several modern Acts of Parliament-e.g., Employers' and Workmen Act, 1875, sect. 10,-make no clear distinction between the two.
Possession by Servant.
THE subject of possession by servants has been the cause of much confusion and perplexity in criminal law. It may be expedient to give the outlines of the history and growth of the law. English lawyers had given definitions of larceny which implied wrongful gaining possession of chattels; and the history of the matter is the history of a long attempt to reconcile this with the necessities of society. Bracton's definition (iii. c. 32), which is almost identical with that found in the Institutes (iv. 1), makes the offence turn on the intent-contractatio rei alienæ fraudulenta cum animo furandi. But it came to be understood that trespass, or wrongful interference with possession, was essential to felony. To Glanville (lib. x. c. 13) the question had presented itself, whether a bailee could be guilty of larceny. His decision is a furto enim omnimodo excusatur per hoc quod initium habuerit suæ detentionis_per dominum illius rei. In the reign of Edward IV. the Courts had to consider whether goods which had been bailed could be stolen by a bailee. It was decided by all the judges of the Exchequer Chamber, except Needham, that the bailee could not be indicted for larceny: 13 Edw. IV. 9. He had, they said, "loyal possession of the goods, and had not taken them vi et armis." The judges, however, decided that it was felony for a person who had a mere special use of an article— e.g., of a piece of plate laid before him at a tavern-to convert it to his own use. By a legal fiction the possession was said, in the case of a bare charge, as distinguished from a general bailment, to be in the owner. (Russell, ii. 135; Hawk. P. C., I. c. 19, § 6).
When the Courts came to deal with similar offences committed by servants, which were probably in these days a common form of larceny, they resorted to fictions and refinements. In the Year Books (3 Hen. VII. 12, and 21 Hen. VII. 15) the question is discussed whether a servant who made away with his master's sheep, might be indicted for larceny. The difficulty with respect to possession was surmounted by declaring that a servant had none; though some of the authorities appear to confine this to the case of servants residing in their master's house.
1. A fresh difficulty, however, arose. A servant may be virtually a bailee; you may give him your jewels to keep for you; you may send him with cattle to market to sell. If he makes away with these, can he be convicted of larceny? The Courts were embarrassed by their former decisions with respect to bailees; and servants appear to have stolen with impunity articles put into their charge. The 21 Hen. VIII., c. 7, was in consequence passed. This statute made it felony for servants to steal or convert to their own use contrary to the trust and confidence reposed in them, any caskets, jewels, money, goods, or other chattels delivered to them for safe keeping. The remedy proved incomplete. By judicial construction the statute was confined to cases in which goods had been delivered for safe keeping. To prove larceny it was necessary to prove trespass (Hawkins, P. Ĉ., I. c. 19, § 1), and this could sometimes not be done even with the exercise of the utmost subtlety. Frequent miscarriages of justice were the result. Thus, a weaver, to whom yarn had been delivered to be worked up at his house, could not be indicted for larceny,
if he misappropriated the material. (Russell on Crimes, ii. 134.) Legislature passed a series of statutes specially dealing with 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 states, 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." By section 68 it is enacted that, "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 (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." By section 72 of the same Act, it is enacted that a person indicted for embezzlement may be convicted of larceny or vice versa, if it be proved that he ought to have been indicted of larceny. Notwithstanding these amendments, the law is still disfigured by embarrassing subtleties. See R. v. Prince (1868), L. R. 1 C. C. 150, 38 L. J. M. C. 8, 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