« EelmineJätka »
before or after marriage, respecting the property of any married woman, or shall interfere with or render inoperative any restriction against anticipation at present attached or to be hereafter attached to the enjoyment of any property or income by a woman under any settlement, agreement for a settlement, will, or other instrument; but no restriction against anticipation contained in any settlement or agreement for a settlement of a woman's own property to be made or entered into by herself shall have any validity against debts contracted by her before marriage, and no settlement or agreement for a settlement shall have any greater force or validity against creditors of such woman than a like settlement or agreement for a settlement made or entered into by a man would have against his creditors.
20. Where in England the husband of any woman having separate property becomes chargeable to any union or parish, the justices having jurisdiction in such union or parish may, in petty sessions assembled, upon application of the guardians of the poor, issue a summons against the wife, and make and enforce such order against her for the maintenance of her husband out of such separate property as by the thirty-third section of the Poor Law Amendment Act, 1868, they may now make and enforce against a husband for the maintenance of his wife if she becomes chargeable to any union or parish.
21. A married woman having separate property shall be subject to all such liability for the maintenance of her children and grandchildren as the husband is now by law subject to for (the maintenance of her children and grandchildren : Provided always, that nothing in this Act shall relieve her husbard from any liability imposed upon him by law to maintain her children or grandchildren.
22. The Married Women's Property Act, 1870, and the Married Women's Property Act, 1870, Amendment Act, 1874, are hereby repealed : Provided that such repeal shall not affect any act done or right acquired while either of such Acts was in force, or any right or liability of any husband or wife, married before the commencement of this Act, to sue or be sued under the provisions of the said repealed Acts or either of them, for or in respect of any debt, contract, wrong, or other matter or thing whatsoever, for or in respect of which any such right or liability shall have accrued to or against such husband or wife before the commencement of this Act.
23. For the purposes of this Act the legal personal representative of any married woman shall in respect of her separate estate have the same rights and liabilities and be subject to the same jurisdiction as she would be if she were living.
24. The word “contract” in this Act shall include the acceptance of any trust, or of the office of executrix or administratrix, and the pro visions of this Act as to liabilities of married women shall extend to all liabilities by reason of any breach of trust or devastavit committed by any married woman being a trustee or executrix or administratrix either before or after her marriage, and her husband shall not be subject to such liabilities unless he has acted or intermeddled in the trust or administration. The word "property” in this Act includes a thing in action.
If a woman who is a party to a contract of service marries, the marriage will not dissolve the contract, and is no excuse for her leaving the service (o).
(6) Burn's Justice, V., 222, 30th ed. ; R. v. Tardebigg (1753), Sayer, 100; S. C. Burr. Settl. Cases, 322;
Chitty's General Practice, 3rd ed., 77a; Fitzherbert, 168, N.
A CONTRACT of hiring and service entered into by a lunatic is binding if the fact of insanity be not known to the person contracting with the lunatic, if the contract have been executed in whole or in part, and if the parties cannot be restored to their original position.
Some of the older authorities state that the acts of a lunatic are wholly void (a). But modern cases, and especially Molton v. Camroux (b), seem to have laid down the doctrine stated above.
A lunatic may be bound by contracts for necessaries, including services suitable to his rank and station (c).
(a) See Holt, C. J., in Thomson v. Leech, (9 Will. III.), 3 Salk. 301; see also Carth. 483, and cases cited in Molton y, Camroux.
(6) (1848), 2 Ex. 487 ; 12 Jur. 800 ; 18 L. J. Ex. 68; 4 Ex. 17 ; 18 L. J. Ex. 356. See also Bea
v. McDonnell (1854), 9 Ex. 309 ; 23 L. J. Ex. 94 ; 2 C. L. R. 474 ; Hassard v. Smith (1872), 6 Ir. Eq. 429. As to contract made by wife of a lunatic, see Drew v. Nunn (1879), L. R. 4 Q. B. D. 661 ; 48 L. J. 591 ; 40 L. T. N. S. 671; 27 W. R. 810. (Defendant authorised his wife to deal with the plaintiff and pledge his credit ; defendant subsequently became insane ; held liable for goods ordered by her during his insanity,
the plaintiff not having had notice of the defendant's insanity). Richardson v. Dubois (1869), L. R. 5 Q. B.51 ; 39 L. J. Q. B. 69 ; 21 L. T. 635 ; 18 W. R. 62; 10 B. & S. 830. (Action against lunatic for necessary repairs done to his house at the request of his wife ; plaintiff knew of defendant's lunacy ; his wife received a sufficient allowance to provide all necessaries; no cause of action.)
(c) Barter v. Earl of Portsmouth (1826), 5 B. & C. 170 (tradesman supplying a lunatic with carriages suitable to his station); and see also Brown v. Jodrell (1827), 3C. & P. 30. As to contracts with drunken persons, Matthews v. Baxter (1873), L. R. 8 Ex. 132.
A PARTNER has, in the absence of any stipulation to the contrary in the articles of partnership, implied authority to hire servants for the purposes of the partnership (a).
One partner would have power to discharge a servant, though, not of course, against the will of his co-partners (6).
Joint Stock Companies. By Schedule A. (55), the business of a company under the Companies Act, 1862, shall be managed by the directors. They may exercise all such powers of the company, as are not required by the Act or Articles of Association to be exercised by the company or by general meeting, and may do all acts (including the hiring of servants) reasonably necessary for the business of the company.
(a) Beckham v. Drake (1841), 9 M. * W. 79. & dormant partner held liable on a contract not signed by him, by which the plaintiff was hired for seven years. In R. v. Leech (1821), 3 Stark. 70, it was held that a servant in the employment of a firm is the servant of each of the partners.
(6) In Dixon on Partnership, p. 139, the law is thus stated : “ As a partner may hire servants, so he may dismiss them if the other partners do not forbid; and even if they do forbid it, it is conceived that, at least as against the servant, a valid dismissal could be effected.” Lindley on Partnership, vol. i. 296. In Donaldson
v. Williams (1833), 1 Cr. & M. 315, it was held that one of two partners, joint tenants of a house where their business was carried on, had a right to authorise a weekly tenant to remain in the house, though the other partner had given him a week's notice to leave the service of the firm, and that it would be lawful for the servant to remain in consequence of such authority. If a servant is injured by reason of the negligence of partner within the scope of the partnership, the other will be liable also. Ashworth v. Stannix (1861), 30 L. J. Q. B. 183.
FORMATION OF THE CONTRACT.
A CONTRACT of hiring and service to be completed within a year need not be in writing; if not to be so completed, it must be in writing (a).
At Common Law a verbal promise for good consideration sufficed to create a contract of hiring and service; and do particular form of words was required (b). Indeed, it is possible and common to conclude contracts of hiring and service without expressing the whole of the terms orally; some of the terms are implied. The parties must be at one; the terms must be fixed; there must, in short, be an agreement (e). The payment of "earnest " or "fastening money,” for example, will often suffice. The Common Law, however, is qualified by the 4th section of the Statute of Frauds, which states that “no action shall be brought upon any agreement that is not to be performed within the space of one year from the making thereof unless the agreement upon which such action shall be
Collyer (1827), 4 Bing. 309 ; Chitty on Contracts, 11th ed. 70 ; 29 Car. 2, c. 3, s. 4.
(6) Beeston v. Collyer, see note (a).
(c) Johnson v. Appleby (1874), L. R. 9 C. P. 158 ; 43 L. J. C. P. 146 ; 30 L. T. 261 ; 22 W. R. 515. The plaintiff proposed to enter the service of defendant and wrote as follows: “Referring to my conversation with you, I have now the pleasure to state my willingness to enter the service of your firm for one year on trial on the following terms, viz., a list of the merchants to be regularly called on by me to be made and corrected as occasion requires. My salary
for the year to be £120 &c. If the terms herein specified are in accordance with your ideas, kindly confirm them by return, and I will then prepare to enter on my duties at your warehouse on Monday morning next."
defendants wrote: “Yours of yesterday embodies the substance of our conversation and terms. If we can define some of the terms a little clearer, it might prevent mistakes ; but I think we are quite agreed on all.” Held that evi. dence of a custom to dismiss salesmen at a month's notice was admissible, there being no complete contract.