II. RELATIVE, &c. 5. Master and if a clerk be engaged at a salary of 100l. a year, and having CHAP. II. received his wages up to a certain time, and served some time longer, and then leave the service before the year expires, without due cause, and without any notice, he was not entitled clerk. to recover any wages up to the time of his quitting, and, at all events, was liable to a cross action for leaving the service without notice; (o) and on the other hand, if a clerk or person be expressly hired for a year or time certain, and be improperly dismissed before the end of the term, he may, on showing his readiness to complete the service, recover wages for the full time of his hiring, sometimes on general pleadings, and always under special pleadings properly adapted to the case, and showing the contract and the improper discharge. (p) There is always an implied duty on the part of a steward, clerk, or other person employed to receive and pay money for a principal, to keep and to render just and explicit accounts, and produce vouchers; and though after a dispute has arisen between a person and his steward, a gross sum has been, upon the interference of a clergyman, paid to the latter in lieu of all claims, without vouchers being rendered, the principal has a right to, and may compel the steward to render his accounts and produce vouchers. (q) clerks. With respect to the right of a master suddenly to discharge Discharge of his clerk, the cases in which the dismissal of a domestic servant may be justified, will in general apply; (r) where a clerk and traveller hired by the year assaulted his maid-servant with intent to take liberties with her against her consent, it was held an adequate ground for his immediate dismissal; (s) and it should seem also from the same case, that a servant dismissed for such or the like cause is not entitled to proportionable wages even for the time he had actually served. (t) So where in an action by a shopman for four quarters' wages, it was proved that the defendant was a silversmith, and that the plaintiff had stolen silver spoons, and embezzled some money when received in the trade, Lord Tenterden ruled, that a servant thus habitually embezzling his master's property, the amount was imma CHAP. II. terial, and though the arrear of wages might exceed the value, II. RELATIVE, he could not recover any part. (u) &c. A clerk or servant in trade may legally, pending his service, solicit business from his master's customers for himself when his service shall be at an end, and he has set up on his own account; (x) and, therefore, if any loss is to be apprehended from such an attempt, it should be specially prohibited, and limited to a certain distance from the place of employment, so as not to constitute too general a restraint of trade. (y) There are special provisions against larceny and embezzlement by clerks and servants, and which constitute felonies; (2) the provisions against embezzlement only apply to a clerk or servant, who by virtue of his ordinary employment receives any chattel, money, or valuable security for, or in the name of, or on the account of his master; the enactments therefore do not extend to a person who is only employed on a particular occasion; (a) and it is expressly provided that the enactments shall not prejudice any civil remedy at law or in equity; (b) consequently, the remedy by action against the clerk or against a surety on any bond taken for his faithful accounting still continues. If a bond or covenant be taken from a surety for the faithful conduct of a clerk, it should be so framed as to continue to operate, notwithstanding any change in the firm or partners by death or other event, for otherwise it would cease to operate on the retiring or addition of a partner. (c) But it would be otherwise if properly framed, so as to continue to operate after a change of persons. (d) And on the behalf of the surety it should be expressly provided, that he shall be at liberty to withdraw his guarantee, upon giving a certain reasonable notice, for otherwise he might continue liable, notwithstanding notice of his desire to determine his liability, and notwithstanding the creditor took a new security, and the original hiring was only as long as the employer and the clerk should think fit. (e) It would be prudent also to stipulate that the obligee or master (u) Brown v. Croft, 3d March, 1828, (x) Nichol v. Martyn, 2 Esp. R. 752. (z) 7 & 8 Geo. 4, c. 29, s. 46 to 48. (b) 7 & 8 Geo. 4, c. 29, s. 52. (c) Weston v. Barton, 4 Taunt. 673; 8 Moore, 588; Pemberton v. Oakes, 4 Russ. 154, 167. (d) Id. ibid.; Metcalf v. Bruin, 12 East, 400. (e) Calvert v. Gordon, 3 Man. & Ry. 124; 7 Bar. & Cres. 809, S. C.; 2 Simons' Rep. 253, S. C.; and the same doctrine was entertained in equity, sed quære. CHAP. II. II. RELATIVE, &c. 5. Master and shall, at stated periods, ascertain and communicate to the surety (f) Trent N. Company v. Harley, 10 East, 34; Orme v. Young, Holt's C. N. P. 84. (g) Id. ibid.; 5 Bar. & Ald. 187. CHAP. III. I. RIGHTS TO CHAPTER III. RIGHTS TO PERSONALTY, INJURIES, AND REMEDIES IN GENERAL. subject. Division of the WE will consider Personal Property, first, with respect to the Right therein; and secondly and thirdly, the Injuries, Offences, Remedies, and Punishments. I. THE RIGHTS ΤΟ PERSONALTY. First.The nature of Personalty, and several kinds. RIGHTS to Personalty are to be considered, first, with respect to the nature of the thing; secondly, the extent of interest therein; thirdly, the time of actual enjoyment; fourthly, the number of the owners; fifthly, the several modes by which a right to tangible personal property may be acquired; and sixthly, contracts, or how a right to choses in action may be acquired. Personalty is principally distinguished from Realty by its actual or supposed mobility, and the want of that durability which accompanies all real property and all permanent rights issuing out of it, and which are therefore considered to be and are in their nature as permanent as the land itself. (a) It is tinguishing per- principally on account of the absence of those properties of Incidents dis sonalty from realty. real property that the owner of personalty is not entitled to many privileges, such as voting at elections for members of parliament, (except in right of certain leaseholds,) nor is he qualified for certain stations in life; and personal property is distinguished from realty by its liability to seizure and absolute sale of the entire interest to satisfy the debt of the (a) Leases for years and tenancies at will or at sufferance have not such durability, and are therefore personalty. That leases, though for a term perpetually renewable, are not an interest in real estate, see Waldron v. Howell, 3 Russ. R. 376. CHAP. III. I. PERSONALTY. owner, when only a part of the annual value of real property can be taken; and in respect of its being absolutely forfeited 1 RIGHTS 10 upon attainder of felony; when real property is only forfeited during life; and by the circumstance of its not in general being rateable to the relief of the poor; (b) and by the modes of acquiring and transferring it without deed, which is essential even at common law to the transfer of any permanent or freehold interest in real estate, or any easement relating thereto; (c) and by its passing, upon the death of the owner, to his executor or administrator for, the benefit of creditors or legatees, or the next of kin, and not to the heir. There are, however, cases in which some kinds of personal property in some respects resemble realty, and partake of its incidents, and vice versû. Thus an heir-loom and title deeds relating to an estate in the hands of the owner for the time being, are in some respects in the nature of personalty, and regarded as moveables, and recoverable in an action of detinue; but they descend to the heir with the real estate; whilst a lease for years of land, although for a 1000 years, yet, as creating only a temporary interest in the realty, and being liable to forfeiture and sale under an execution and other contingencies, is mere personal assets in the hands of an executor, on account of its want of that durability in point of time which is supposed to exist in the case of a freehold interest, though merely for the life of another. (d) These and other peculiarities are essential to be kept in view, and will be more fully noticed as we proceed. Personal things are principally of two descriptions: first, such as are tangible, and actually separated from real property, or readily so, and therefore in legal consideration supposed to be moveables, and are or may be in the actual visible possession of the owner; or secondly, such things as are considered choses in action, where the owner has not the actual occupation or possession of the thing, whether money or other specific chattel, but must resort to an action to enforce actual possession. Another important rule generally prevails, particularly in the construction of criminal statutes, namely, that when a ship or other article is named, it imports a thing perfect and complete, (e) unless, as sometimes is the case, the statute expressly declare that the provision shall extend to an unfinished article, as in (b) Burn's J., Poor, 63 to 68. (e) 5 B. & Cres. 221. (d) 3 Russ. R. 576, ante, 84, n. (a). (e) In larceny of a bill of exchange, it must have been a valid instrument, or it will not answer the description, Rex v. Pooley, 2 Leach, 887; Rex v. Yates, Ry. & Mood. & P. 535. |