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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 had such possession as enabled him to maintain an action of trespass. (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, decided by Commissioner Fane in 1860 (3 L. T. N. S. 386). When a son had possession of certain goods as the 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. Irrin (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 Er parte Majoribanks, De Gex (1847), 466, as to the effect of joint possession of goods by servants of bankrupt and owner of goods.
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 opera and illiberales operæ (6), 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
Kennedy v. Broun (c), and the chief conclusion which was
(a) Smith's Master and Servant, 1; Wood's Master and Servant, 8.
(6) Windscheid, ii. s. 404.
(c) (1863) 13 C. B. N. S. 677 ; 9 Jur. N. S. 119; 32 1. J. C. P. 137 ; 11 W. R. 284; 7 L. T. N. S. 626 ; action on a promise, in consideration of services as counsel, held not to lie. See remarks on this case in Pollock on Contracts, 3rd ed., 638 ; also Mostyn v. Mostyn (1870), L. R. 5 Ch. 457, and Robertson v. McDonagh, 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 y. Russell (1842), 3 Q. B. 928 ; 12 L. J. Q. B. 13. “The phy. sician 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.
come to 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 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 enter into a binding contract with B. for the same period. “One who has contracted,” says Lord Ellenborough, in R. v. Norton, “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” (d). 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 (f) 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.
(d) R. v. Hindringham (1796), 6 service as would give a settlement T. R. 557. A., an infant indentured unless the master had an absolute as an apprentice to B. ; during the right to the services for the whole apprenticeship he entered the navy time. On the other hand, it was with the consent of his master ; but held that hiring for a year by a his articles were not delivered up. militiaman, if the fact of his being After quitting the navy, and before such were made known to the master the expiration of the apprenticeship, at the time of hiring, gave a settlehe hired himself to C. Held, that ment; R. v. Westerleigh (1773), A., not being sui juris at the time, Burr. S. C. 753 ; R. v. Winchcomb could not enter into a legal con- (1780), 1 Doug. 391 ; N. v. Tauntract. As to difference between ton (1829), 9 B. & C. 831 ; R. v. contract with soldier and one with St. John (1829), 9 B. & C. 896 ; R. infant, R. v. Chillesford (1825), 4 v. Elmley Castle (1832), 3 B. & Ad. B. & C. 94, 100.
826; R. V. St. Mary-at-the-Wall (c) R. v. Beaulieu (1814), 3 M. (1834), 5 B. & Ad. 1023 ; R. v. & S. 229. A soldier, though not Witnesham (1835), 2 A. & E. 648 ; “lawfully hired" within the meaning case of member of a Volunteer corps of the statute, could have recovered under 44 Geo. III., c. 54. wages for his services. The Court 11) (1808), 9 East, 206. refused to find such a hiring and
The position of servants and apprentices who enlist in the army is now governed by statute. Sect. 96 of the Army Act, 1881 (44 & 45 Vict., c. 58), states that “the master of an apprentice in the United Kingdom who has been attested as a soldier of the regular forces may claim him while under the age of twenty-one years, as follows, and not otherwise: (1.) The master, within one month after the apprentice left his service, must take before a justice of the peace the oath in that behalf specified in the First Schedule to this Act, and obtain from the justice a certificate of having taken such oath, which certificate the justice shall give in the form in the said Schedule, or to the like effect : (2.) A court of summary jurisdiction within whose jurisdiction the apprentice may be, if satisfied on complaint by the master that he is entitled to have the apprentice delivered up to him, may order the officer under whose command the apprentice is to deliver him to the master; but if satisfied that the apprentice stated on his attestation that he was not an apprentice, may, and if required by or on behalf of the said commanding officer shall, try the apprentice for the offence of making such false statements, and if need be may adjourn the case for the purpose : (3.) Except in pursuance of an order of a court of summary jurisdiction, an apprentice shall not be taken from her Majesty's service : (4.) An apprentice shall not be claimed in pursuance of this section unless he was bound for at least four years by a regular indenture, and was under the age of sixteen years when 80 bound : (5.) A master who gives up the indenture of his apprentice within one month after the attestation of such apprentice shall be entitled to receive to his own use so much of the bounty (if any) payable to such apprentice on enlistment as has not been paid to the apprentice before notice was given of his being an apprentice.” As to servants enrolled in Militia, see Voluntary Enlistment Act of 1875, 38 & 39 Vict., c. 69, sect. 78.
In regard to seamen volunteering into the Navy, see Merchant Shipping Act, 1854, sections 214–220. By section 215,
a proportionate part of wages down to the time of entry must be paid by the master. By section 214 seamen are allowed to leave their ships to enter the Navy, and “all stipulations introduced into any agreement whereby any seaman is declared to incur any forfeiture, or be exposed to any loss in case he enters into her 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 £20” (g).
(9) See Part II., Chapter IX.