A TREATISE ON THE LAW OF MASTER AND SERVANT. CHAPTER I. THE PARTIES TO THE CONTRACT.-WHO MAY CON TRACT THE RELATIONSHIP SERVANT. OF MASTER AND Parties to age of As a general rule, every person of the full twenty-one years, and not under any legal disability, is the contract capable of becoming either a master or a servant. But generally. in order that a contract of hiring and service be may legally binding (a), it is necessary that at the time such servant a contract is entered into, the party about to be hired must be sui juris, in should be free from any other engagement incompatible order to with that into which he is about to enter: in other enter into words, he must be sui juris. binding contract of Thus, whilst a settlement could be gained by hiring hiring and (a) It is not always neces sary to prove a legally binding contract of hiring: a service B de facto is, as we shall here- service. As in case of settlement by hiring and service. Contracts of hiring by Soldiers. and service (b), it was held, that the party who hired himself as a servant must, in order to acquire a settlement by service under that hiring, have been, at the time of hiring, disencumbered from any other relation which might interfere with or defeat the performance of his engagement; for, unless he were so, he was not free to contract, and if not free to contract, he could not be lawfully hired. Therefore an apprentice (c) could not, whilst his inapprentices. dentures remained in force (and they were not then dissolved by the bankruptcy (d) of the master) lawfully hire himself to another master so as to gain a settlement by service under such hiring. So a deserter from the King's marine forces (e); and an invalided soldier in the King's service who had leave of absence upon agreeing to relinquish his pay for the time, which leave was renewed from time to time, were also held incapable of making a valid contract of hiring and service so as to gain a settlement thereunder, since they were not sui juris, so as to be able to contract, being under a legal disability in consequence of having entered into a different obligation (ƒ): Militiamen And similar principles were held to be applicable to and others. militiamen and their substitutes, and members of volunteer corps, such persons being held to be incapable of entering into a valid contract of hiring and service; unless, at the time they did so, they informed their master, or he knew of their liability to be called on to serve, and he agreed in such case to dispense with their personal services (g). now enure as a complete discharge of an indenture of apprenticeship, 12 & 13 Vict. c. 106, s. 170; and see ibid., as to return of apprentice fee. (e) Rex v. Norton, 9 East, 206. (f) Rex v. Beaulieu, 3 M. & S. 229. (g) Rex v. Westerleigh, Burr. S. C. 753; Rex v. Winchcombe, 1 Doug. 391; Rex v. Holsworthy, 6 B. & C. 283; Rex v. Taunton, St. James, 9 B. & C. 831; Rex v. Elmley Castle, 3 B. & Ad. MARRIED WOMEN. A married woman is in general incapable of entering Married nto any contract which will be binding upon her at law, women. and cannot therefore take an apprentice, as she cannot legally bind herself to instruct him (h). In entering into contracts, she is generally regarded as the agent of her husband, and he will in general be bound by such contracts. When therefore a married woman hires servants, her husband will, in most cases, be liable to pay the Liability of wages. And it makes no difference in his liability, that husband. the wife has entered into and signed an agreement under seal, where he has not authorized her to do so. In a case (i), therefore, where the defendant's wife by White v. an agreement under seal to which he was no party, and Cuyler. which he had not given her any written authority to enter into, agreed to take the plaintiff with her to Barbadoes, in the capacity of a waiting maid, to pay her 217. per annum as long as she continued in her service, and to pay for her passage to Barbadoes, and other incidental expenses, as also her passage home to England, in case she should be dismissed from her situation: It was held that the defendant was liable to an action of assumpsit, for the amount of the plaintiff's wages, and her passage money home to England, which had not been paid, although it was objected on the part of the defendant, that the form of action was misconceived, and that it should have been on the deed. liability depends on wife's The liability of the husband, however, upon contracts Husband's of hiring entered into by the wife, depends entirely upon the principle, that the wife was his agent, and had authority from him to enter into the contract (k). But agency. it is not necessary, in order to render him liable, to shew that such authority was expressly given to the wife. It is sufficient if it can be implied from circumstances. In all cases, the question whether or not, she had authority 826; Rex v. St. Mary-at-the Walls, Colchester, 5 B. & Ad. 1023; Rex v. Witnesham, 2 A. & E. 648. (h) Rex v. Guildford, 2 Ch. 284. As to how far a mar. ried woman may act as a feme sole in the city of London, see Beard v. Webb, 2 Bos. & P. 93. (i) White v. Cuyler, 1 Esp. 200; S. C. 6 T. R. 176. (k) Manby v. Scott; Montague v. Benedict, 2 Smith's L. C. 245; Mizen v. Pick, 3 M. & W. 481; Chit. on Contr. 152. The pre sumption of which may be rebutted. to bind him is one proper for the consideration of a jury (1). And so long as husband and wife cohabit, it will be presumed that she had authority to hire such servants as were necessary or suitable to the condition in life of her husband, and he will be liable to pay their wages (m). When they do not cohabit, the presump. tion is rather the other way, viz., against the husband's liability upon his wife's contracts (n); but, in both cases the presumption may be rebutted-in the former case, by evidence that the husband had expressly forbidden his wife to hire the servant, and the servant knew that he had done so (0), or by shewing that during his temporary absence, he allowed and paid his wife an adequate sum for the payment of all necessary expenses, and that the servant knew that he did so (p)-in the latter case, by shewing that the wife was not reasonably provided for, considering the circumstances of the husband (9). For, if when husband and wife are separated, she receive either from her husband or any other source (r), an adequate sum for her separate maintenance, she has no implied authority to pledge her husband's credit, and in such case it is not necessary to prove that the party trusting the wife had notice of her separate maintenance, in order to exempt the husband from liability (s). But, when a married woman is separated from her husband, she does not thereby regain the capacity to enter into contracts which will be binding upon her, as a feme sole, even though the separation be by deed, and, therefore, (1) Lane v. Ironmonger, 13 M. & W. 368. (m) See Etherington v. Parrott, 1 Salk. 118, and cases cited, 2 Smith's L. C. 283. This presumption of agency, arising from cohabitation, is not confined to the case of a lawful wife-it extends to the case of any woman with whom the defendant cohabits, and whom he allows to assume his name, although not his wife. Watson v. Threlkeld, 2 Esp. 637. (n) Reed v. Moore, 5 C. & P. 200; Ozard v. Darnford, 1 S. N. P. 294; Mainwaring v. Leslie, M. & M. 18; Clifford v. Laton, M. & M. 101. (0) Etherington v. Parrott, ubi supra. (p) Holt v. Brien, 4 B. & Ald. 252. (q) Clifford v. Laton, M. & M. 101. (r) Ibid. But a pension revocable at pleasure is not a sufficiently stable fund for the purpose. Thompson v. Hervey, 4 Burr. 2177. (s) Mizen v. Pick, 3 M. & W. 481; Holder v. Cope, 2 C. & K. 437; Reeve v. Marquis of Conyngham, 2 C. & K. 444. although in some such cases the husband is not liable, yet no more is she; parties entering into contracts with her under such circumstances, trust to her honour (t). take advan tracts of So, on the other hand, the husband may take advan- Power of tage of any contract of service entered into by his wife, husband to and, therefore, where a married woman enters into tage of service, her husband is the person to whom her wages wife's con. should be paid, as he is entitled to the profits resulting hiring. from her work and labour, and she cannot in general even join him in an action upon a contract made during the marriage for her work and labour (u), though it is said she may do so where she is the meritorious cause of action, as where the cause arises from her personal labour and skill (v). There is, however, one case (w) in which it was held, Harper v. that a married woman who was residing with her father, Lufkin. having been seduced, the father might bring an action against the person who had seduced her, although it was objected that the action was founded on loss of service, and the daughter being a married woman, she could not enter into a valid contract of service, and, therefore, the father was not legally entitled to her services; but it was held, that a service in fact was sufficient to support the action, especially as the husband had not interfered. victed. Where the husband is civilly dead, as in case of his Where husbeing transported for life, or a limited term, the wife band con may contract as a feme sole, and sue or be sued upon her contracts (x). And it makes no difference in this respect that he is at the Hulks in this country, and not actually sent abroad (y). women in In equity a married woman, having separate pro- Power of perty is for many purposes regarded as a feme sole, and married her contracts are held to bind her separate estate (z). equity. And it appears to be the better opinion, that it is not (t) Marshall v. Rutton, 8 T. R. 545. (u) Buckley v. Collier, 1 Salk. 114. (v) Brashford v. Buckingham, Cro. Jac. 77, 205; and see Nurse v. Wills, 4 B. & Ad. 743, S. C. in error, 1 A. & E. 65. (w) Harper v. Luffkin, 7 (x) Chit. on Contr. 169. (z) Bell v. Hyde, Prec. |