Contracts of hiring by apprentices. the performance of his engagement; for, unless he were so, he Therefore an apprentice (c) could not, whilst his indentures 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. Soldiers. 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 others. Purser's is servant of And similar principles were held to be applicable to 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 agreed, in such case, to dispense with their personal services (g). Upon similar principles it has been held (h), that a purser's steward, who steward, on board one of her Majesty's ships, who could not be Crown, can- appointed by the purser without the assent of the commander, and was entitled to the pay of an able seaman from the Crown, could not recover additional wages from the purser, although it was proved to be usual for pursers to allow their stewards a salary at the rate of 17. per gun. not sue purser. But cook hired from another vessel, on promise of extra pay, can sue. But where (i) the commander of one of her Majesty's ships engaged the plaintiff, who was then cook on board a steamer, to serve in that capacity on board the ship he commanded, promising to give him 121. a year beyond his rating as an able seaman; it was held that the plaintiff might recover that amount in an action against the commander, Maule, J., observing, "Here the plaintiff, instead of contracting to do work which he was already bound to perform, was a free agent, perfectly sui juris, when he entered into the engagement." (c) R. v. Hindringham, 6 T. R. 557. And see R. v. Stowmarket, 9 East, 211; R. v. Dunton, 15 East, 352, which, although not cases of apprenticeship, illustrate the text. (d) R. v. Puckington, 1 Str. (e) R. v. Norton, 9 East, 206. 229. (g) R. v. Westerleigh, Burr. 753; R. v. Winchcombe, 1 Doug. 391; R. v. Holsworthy, 6 B. & C. 283; R. v. Taunton St. James, 9 B. & C. 831; R. v. Elmley Castle, 3 B. & Ad. 826; R. v. St. Maryat-the-Walls, Colchester, 5 B. & Ad. 1023; R. v. Witnesham, 2 A. & E. 648. (h) Carter v. Hall, 2 Stark. 361. (i) Clutterbuck v. Coffin, 3 M. & G. 842; and see Harris v. Carter, 3 E. & B. 559; Hartley v. Ponsonby, 26 L. J., Q. B. 322. For all ministerial acts, which require no exercise of judg- Ministerial ment or discretion, every public officer may appoint a deputy or public officer may appoint servant (k). Thus a sheriff, or churchwarden, or overseer may a deputy. depute the execution of warrants to others. But an officer Judge whose duties are of a judicial character cannot act by deputy (?), cannot. unless empowered to do so by Act of Parliament. MARRIED WOMEN. A married woman is, in general, incapable of entering into Married any contract which will be binding upon her at law, and women. cannot, therefore, take an apprentice, as she cannot legally bind herself to instruct him (m). And she cannot sue alone on a contract made with her before or after marriage, even though her husband is an alien enemy (n). 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 Liability of married woman hires servants, her husband will, in most cases, be liable to pay the wages. And it makes no difference in his liability that the wife has entered into and signed an agreement under seal where he has not authorized her to do so. husband. In a case (o), therefore, where the defendant's wife, by an White v. agreement under seal to which he was no party, and which he Cuyler. 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 211. 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 The liability of the husband, however, upon contracts of Husband's hiring entered into by the wife, depends entirely upon the prin- depends on ciple that the wife was his agent and had authority from him to wife's enter into the contract (p). But it is not necessary, in order to agency. render him liable, to show 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 to bind him is one proper for the consideration of a (k) Phelps v. Winchcombe, 3 Bulstr. 77; Walsh v. Southworth, 6 Exc. 150; S. C. 2 L. M. & P. 91. (1) Roll. Abr. 591, tit. "Deputie." (m) R. v. Guildford, 2 Ch. 284. As to how far a married woman may act as a feme sole in the City of London, see Beard v. Webb, 2 Bos. & P. 93. (n) De Wahl v. Braune, 1 H. & N. 178. (0) White v. Cuyler, 1 Esp. (p) Manby v. Scott, Montague The pre jury (q); and, so long as husband and wife cohabit, it will be sumption of presumed that she had authority to hire such servants as were which may be rebutted. Power of husband to take advan tage of wife's contracts of hiring. necessary or suitable to the condition in life of her husband, and he will be liable to pay their wages (r). When they do not cohabit the presumption is rather the other way, viz., against the husband's liability upon his wife's contracts (s). 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 (t); or by showing 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 (u) in the latter case, by showing that the wife was not reasonably provided for, considering the circumstances of the husband (x). For if, when husband and wife are separated, she receive, either from her husband or any other source (y), 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 (z). 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, 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 (a). So, on the other hand, the husband may take advantage of any contract of service entered into by his wife; and therefore, where a married woman enters into service her husband is the person to whom her wages should be paid, as he is entitled to the profits resulting 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 (b), though it is (q) Lane v. Ironmonger, 13 M. & W. 368. (r) See Etherington v. Parrott, 1 Salk. 118; Jewsbury v. Newbold, 26 L. J., Exc. 247; and cas. cit. 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 a woman with whom the defendant cohabits, and whom he allows to assume his name, although not his wife, Watson v. Threlkeld, 2 Esp. 637. (s) 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. (t) Etherington v. Parrott, ubi supra. (u) Holt v. Brien, 4 B. & Ald. 252. (x) Clifford v. Laton, M. & M. 101. (y) Ibid. But a pension revocable at pleasure is not a sufficiently stable fund for the purpose, Thompson v. Hervey, 4 Burr. 2177. (z) Mizen v. Pick, 3 M. & W. 481; Holder v. Cope, 2 C. & K. 437; Reeve v. Marquis of Conyngham, 2 C. & K. 444. (a) Marshall v. Rutton, 8 T. R. 545. (b) Buckley v. Collier, 1 Salk. 114. And see Cooper v. Wellington, 7 C. & P. 531, which was an action brought by a husband alone, who was separated from said she may do so where she is the meritorious cause of action, as where the cause arises from her personal labour and skill (c). answer to And an admission by the wife that her wages have been paid Payment to would not be evidence against the husband in an action by him wife when an for her wages (d). Nor, indeed, would the fact of actual pay- action by ment to the wife be any answer to such an action, unless she husband for was authorized by him to receive it (e). her wages. Luffkin. There is, however, one case (ƒ) in which it was held that a Harper v. married woman, who was residing with her father, having been seduced, the father might bring an action against her seducer, 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. band convicted. Where the husband is civilly dead, as in case of his being Where hustransported for life, or a limited term, the wife may contract as a feme sole, and sue or be sued upon her contracts (g); and it makes no difference in this respect that he is at the hulks in this country and not actually sent abroad (h). woman in In equity a married woman having separate property is, for Power of many purposes, regarded as a feme sole, and her contracts (i) are married held to bind her separate estate, though she is incapable at law Equity. of making a contract in respect of her separate property (k). And it appears to be the better opinion, that it is not necessary that a contract should be in writing, in order to bind her separate estate in equity, where that is not rendered necessary by any statute (1); nor, where it is in writing, is it necessary that it should refer to the separate property in order to bind it (m). Where, however, there is a restraint upon her power of anticipation, she cannot deal with her property as a feme sole. And a married woman is not rendered competent to contract as a feme sole, by the possibility that she may afterwards acquire separate property (n). his wife, for special damage sustained by him in consequence of a libel on his wife, whereby she lost a situation which enabled her to maintain herself. (c) Brashford v. Buckingham, Cro. Jac. 77, 205; and see Nurse v. Wells, 4 B. & Ad. 743; S. C. in error, 1 A. & E. 65; Johnson v. Lucas, 1 E. & B. 659; Selw. Nisi Prius, tit. "Baron and Feme," III. (d) Hall v. Hill, 2 Str. 1094. (e) Offley v. Clay, 2 M. & G. 172. (ƒ) Harper v. Luffkin, 7 B. & C. 387. (g) Chit. on Contr. 169. (i) Bell v. Hyde, Prec. Cha. 452. (1) Owens v. Dickinson, Cr. & Ph. 55. (m) Ibid., and see Vaughan v. Walker, 6 Ir. Ch. Rep. 471. (n) Per Wood, V. C., in Walrond v. Walrond, 28 L. J., Ch. 97. Where wife husband has obtained order for protection. And now (o) where a wife is deserted (p) by her husband she deserted by may at any time after such desertion, if resident within the metropolitan district, apply to a police magistrate, or if resident in the country to justices in petty sessions; or, in either case, to the Court for Divorce and Matrimonial Causes, for an order to protect any money or property she may acquire by her own lawful industry, and property which she may become possessed of after such desertion, against her husband or his creditors, or any person claiming under him; and such magistrate or justices or court, if satisfied of the fact of such desertion, and that the same was without reasonable cause, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings and property acquired since the commencement of such desertion, from her husband and all creditors and persons claiming under him; and such earnings and property shall belong to the wife as if she were a feme sole: Provided always, that every such order, if made by a police magistrate or justices at petty sessions, shall, within ten days after the making thereof, be entered with the registrar of the county court within whose jurisdiction the wife is resident; and that it shall be lawful for the husband, and any creditor or other person claiming under him, to apply to the court or to the magistrate or justices by whom such order was made for the discharge thereof: Provided also, that if the husband, or any creditor of, or person claiming under the husband, shall seize or continue to hold any property of the wife after notice of any such order, he shall be liable at the suit of the wife (which she is thereby empowered to bring) to restore the specific property, and also for a sum equal to double the value of the property so seized or held after such notice as aforesaid if any such order of protection be made the wife shall, during the continuance thereof be and be deemed to have been during such desertion of her in the like position in all respects with regard to property and contracts, and suing and being sued, as she would be under this act if she obtained a decree of judicial separation. Infants. INFANTS. Although infants labour under a general incapacity to enter into absolutely binding contracts with other persons (q), yet they may make some contracts which will be binding upon them until avoided by them (r); such as contracts for their (o) 20 & 21 Vict. c. 85, s. 21. The affidavit in support of the application for such an order should be very precise, to satisfy the court of the fact of desertion. Ex parte Sewell, 28 L. J., Prob. & Mat. C. 8. On the construction of this section generally, see Bathe v. Bank of England, 27 L. J., Ch. 630. (p) As to what amounts to desertion, see Thompson v. Thompson, 27 L. J., Prob. & Mat. C. 65. (q) Bac. Abr. tit. "Infancy," I. (r) Third persons cannot avoid contracts entered into by infants, on the ground that they are not for the infant's benefit, Douglas v. Watson, 17 C. B. 685. |