CHAPTER VIII.

MIXED SUBJECTS OF PROPERTY,

What are emblements, and to whom do they belong?

Those vegetables which are raised annually by labour and manurance, which are considerations of a personal nature, such as hops, hemp, flax, &c. They go to the executor or administrator as against the heir or remainderman, but not as against a devisee. They may be distrained upon for rent, by 11 Geo. II. c. 19, and they are liable to be taken in execution.

What are fixtures, and to whom do they belong? And what change in the law has been made in reference to them within the last thirty years?

Articles fixed in the ground, to a house, or to some substance formerly part of the freehold, such as windows, grates, palings, steam engines, &c., the maxim being, quicquid plantatur solo, solo cedit.

Fixtures which are put up for the purposes of trade, ornament, or domestic use; (i.) as between the heir or devisee, and the personal representative of the tenant in fee belong to the latter, if they can be removed without material damage; (ii.) as between the owner of a particular estate and the remaindermen they belong to the former; and (iii.) as between landlord and tenant to the latter, if the removal would not materially damage the freehold, subject to 14 & 15 Vict. c. 25, in the case of agricultural fixtures. By the Agricultural Holdings Act, 1875 (38 & 39 Vict. c. 92), a tenant may remove them if he duly comply with the provisions of the Act; and a mortgage of fixtures will also now require registration in pursuance of the Bills of Sale Act, 1882 (45 & 46 Vict. c. 43).

What is the rule as to agricultural fixtures?

By 14 & 15 Vict. c. 25, if not put up by the tenant in pursuance of a covenant for that purpose contained in the lease, they may on giving one month's written notice to the landlord to take them at a valuation, to be arrived at in the ordinary way, be removed by such tenant by consent in writing of the landlord, provided he do not injure the freehold, or if he do it must be restored. (See also hereon the Agricultural Holdings Act, 1875 and 1883.)

Are fixtures liable to be taken in execution or on a distress for rent?

A tenant's fixtures are, because he can remove them, but not a freeholder's, they cannot be distrained upon in any case.

What species of property are shares in public undertakings connected with land?

Real estate as far as the land goes, or the right of using it, but the shares of the investors are personalty.

Mention some things personal which partake of the qualities of things real.

(i.) Animals feræ naturæ, if not domesticated.

(ii.) Charters, deeds, court rolls, and other evidences of titles, together with the deed boxes.

(iii.) Coat armour, &c.

(iv.) Monuments or tombstones, the latter, though fixtures, do not pass with the land, but belong to the heir or devisee of the ancestor.

What are heirlooms, and whence is the term derived?

They are such goods and personal chattels as go by special custom to the heir along with the inheritance, and not to the executor of the last proprietor. The termination loom is of Saxon origin, signifying limb or member, so that an heirloom is a limb or member of the inheritance.

It must be remembered they cannot be devised away from the inheritance.

BOOK III.

RIGHTS IN PRIVATE RELATIONS.

CHAPTER I.

MASTER AND SERVANT.

What are the private economical relations of persons?

(i.) Master and servant; (ii.) husband and wife; (iii.) parent and child; (iv.) guardian and ward.

Mention the three great relations in private life, upon what they are respectively founded, and state what further relation has been provided by the law?

As above mentioned, (i.) Master and servant, founded on convenience. (ii.) Husband and wife, founded on nature. (iii.) Parent and child, consequential to that of marriage; and as the children require bringing up and educating, the law has provided: (iv.) that of guardian and ward.

What are the various kinds of servants ?

The first relation mentioned in the last answer may subsist between a master and four species of servants, for slavery is unknown to our laws, viz. :

(i.) Menial servants (derived from the Latin intra mænia), who are hired.

(ii.) Apprentices who are bound by indentures.

(iii.) Labourers who are casually employed, and workmen engaged in trades or manufactures.

(iv.) Stewards, bailiffs, and factors who are rather in a ministerial state.

Upon what terms is a general hiring of domestic servants construed to be?

It is a hiring for a year, and so on from year to year, defeasible by custom at the option of either party by giving a month's warning or paying a month's wages. In the case of a governess, tutor, or clerk, a three months' notice is sometimes required; and sometimes a reasonable notice to expire at the end of the year.

When no express stipulation has been made, what notice is required, on either side, to determine the engagement of a clerk, tutor, or menial servant?

See last answer.

What are the principal statutes relating to master and servant as regards service, &c. ?

30 & 31 Vict. c. 141, continued by 36 & 37 Vict. c. 75, giving a justice of the peace jurisdiction as regards the service to be performed, or any misbehaviour or ill-treatment, &c.; and a power to imprison for three months with or without hard labour. And 30 & 31 Vict. c. 105, authorising the establishment of equitable councils to adjust differences between masters and workmen, not including domestic or agricultural servants, and by the Employers and Workmen Act, 1875 (38 and 39 Vict. c. 90), the justices when sitting as a Court of Summary Jurisdiction," have now conferred on them a concurrent civil jurisdiction with the County Courts in disputes between parties standing in the relation of employers and workmen, not including domestic or menial servants, where the sum claimed does not exceed £10.

What is the derivation of the term apprentice, and how does the service arise?

It is derived from the French apprendre, to learn, and an apprentice is usually bound for a term of years by an indenture to serve his master, and to be maintained and instructed by him; this is usually done to a person in trade in order that the apprentice may learn a business, and sometimes a large sum is given with him as a premium for instruction.

In what manner does the relation of master and servant affect each party respectively?

The servant is entitled as a general rule to food and lodging, and he cannot be turned away in case of sickness without his proper notice or pay; and by 24 & 25 Vict. c. 100, s. 26, if any master who is legally liable refuses to provide food, clothing, or lodging for an apprentice or servant, or wilfully refuses or neglects to do so, or maliciously endangers the life, or permanently affects the health of his apprentice or servant, he is guilty of a misdemeanour punishable by imprisonment for two years with or without hard labour, or penal servitude for five years.

On the other hand, a master as a general rule is not obliged to find medicine, &c., for his servant, neither was he liable for an injury in the course of a common employment resulting from the negligence of a fellow servant; but there has been a very material alteration in the law in this respect by the Employers' Limited Liability Act, 1880 (43 & 44 Vict. c. 42), in all cases in which the fellow servant, whose negligence is the cause of the injury, being in a position of authority over the servant or servants injured.

The servant can be discharged at once for wilful disobedience or moral misconduct, and the master is not compelled to give his servant a character, but if he does, it must be a true one.

Is a master liable to supply his domestic servant with medicine, and with medical attendance: and in what case may a master discharge his servant without notice; and to what wages, if any, will the servant, when so discharged, be entitled?

As a general rule a master is not liable to supply a servant with medicine or medical attendance. Where a servant has been guilty of moral misconduct or of wilful disobedience or habitual neglect of his master's lawful commands, he may be dismissed without notice, and no wages can be claimed that had not actually fallen due before the dismissal.

Under what obligation is a master to give his servant a character, and what is an essential ingredient in an action by the servant against the master, if he gives the servant a false character?

He is under no obligation whatever to give his servant a character, but if he does it must be a true one. Malice is the essential ingredient pointed at in the question.

How are masters protected from the consequences of false characters?

By 32 Geo. III. c. 56, which renders both the giver and the receiver liable to a penalty of £20, and in default imprisonment with hard labour.

How are strangers affected by the relation of master and servant? (i.) The master may maintain (i.e., abet and assist) his servant, and vice versa in an action against a stranger. (ii.) He may bring an action against any one for beating, maiming, or seducing his servant on proof of loss of service.

(iii.) A master may justify an assault in defence of his servant, and vice versû; and,

(iv.) If any one knowingly entices away a servant or apprentice, and retains him in his service after due notice that he is under an unexpired contract of service, he is liable to an action at the suit of the master.

What is essential to render a master liable for the acts of his servant, and in what cases, if any, is the servant liable for his own acts?

The general rule, as laid down on the principle of agency, is that the master is liable for the acts of his servant if performed by his express or implied authority, the maxim being, "Qui facit per alium facit per se," subject to the fact of being actually employed in the master's service, and a master is not liable for his servant's criminal act unless performed by his encouragement.