BOOK I. What deeds of the interdicted person are valid. Reduction ca nis, to whom competent. 58. Since the law does not look on a person as if he had any defect of judgment from his being laid under interdiction, all his deeds, though granted without the consent of his interdictors, are valid. They are indeed subject to reduction, where he appears to have been hurt or overreached; but where the deed is either onerous, Gosf. Feb. 27. 1672, (Stewart, DICT. p. 3094.), or even rational, Nov. 10. 1676, Steuart, (Dicт. p. 7132.), it is as effectual as if he had not been interdicted. As to deeds mortis causa, he hath doubtless a power of bequeathing his moveable estate by testament, since he may dispose of it by present gratuitous deeds, which is a greater power; but he can make no settlement of his heritable estate, nor alter any former settlement of it, though upon the most rational grounds, either with or without his interdictor's consent, Dec. 27. 1725, Tenants, (Dicт. p. 7127.); so that he is in that respect in a like condition with minors, who are utterly incapable of making deeds of settlement in relation to heritage. All deeds granted with consent of the interdictors are as valid as if the granter had been laid under no restraint, insomuch that though gross lesion should be proved, he has not the remedy of reduction competent to minors: His only recourse lies against the interdictors, whom he can sue for making up to him what he has suffered through their undue consent. This rule, That all deeds consented to by the interdictors are effectual, was extended by our older customs, even to such as were granted in favour of the interdictors themselves, which is mentioned with just indignation by Craig, Lib. 1. Dieg. 15. § 24., as contradicting another most equitable rule, by which the first ought to be limited, that no tutor, and consequently no interdictor, whose office is a species of tutory, and implies as strong a trust, can be auctor in rem suam *. 59. The action of reduction ex capite interdictionis is competent, pite interdictio- first, To the interdictors, either before or after the death of the person under their care. 2dly, It seems hard to deny this right of action to the interdicted person himself; for the benefit of interdiction, intended by the law for protecting him against hurtful deeds, would lose much of its use, if he were not entitled to pursue that action by himself, in case the interdictors should, from wilfulness or caprice, refuse to lend their names to the suit. Yet it is certain, that the interdicted was not allowed, by our ancient practice, to sue in his own name, for setting aside a deed granted by himself, Maitl. March 14. 1554, Ure, (DICT. p. 7164.). 3dly, Reduction may be pursued by the heir of the interdicted, who is accounted eadem persona with the interdicted himself, Dec. 27. 1725, Tenants, (DICT. p. 7127.); and therefore can pursue for setting aside any deed or conveyance by his ancestor relating to heritage, which has been granted after interdiction. But, notwithstanding this fictitious identity, the heir is subjected to no such personal diligence, upon his ancestor's moveable obligations, as was competent against the granter himself, provided he abstained from the moveable estate, St. B. 1. T. 6. § 41. 4thly, This action is also competent to the assignees of the interdicted person, who come into the right of the interdicted himself, St. B. 1. T. 6. § 42. And, lastly, To the creditors-adjudgers of the special subject conveyed by the interdicted deed by which it is imposed. See Kilk. No. 1. voce INTERDICTION, Dingwall, DICT. p. 7152. * An interdictor, like a tutor, is bound to communicate rights acquired by him relating to the estate of the interdicted; Fac. Coll. Feb. 5. 1761, Campbell, Dicт. p. 7156. dicted without consent of the interdictors, Feb. 20. 1666, Lo. Salton, (DICT. p. 10420.). The nullity of deeds on the head of interdiction is not receivable by way of exception, but must be insisted in by an action of reduction, June 20. 1671, Crawfurd, (DICT. p. 2741.); see Stair, B. 1. T. 6. § 42. The duty of interdictors differs much from that of proper tutors or curators: for they are neither given persona, as tutors are, to sustain the person of their ward; nor rei, as curators, to manage his estate; but barely ad auctoritatem præstandam, to give their consent to such deeds affecting heritage, as it is reasonable for the interdicted to grant. Hence, interdictors are not liable for omissions; for they have no subject to manage: All that they are answerable for is, their fault, or fraud, in consenting to deeds which may be granted by the interdicted to his prejudice. TITLE VII. II. OF THE RELATION BETWEEN MASTER AND SERVANT. ants are Hmited only by their voluntary engagements, or by statute. 60. By the Roman law, servants or servi were the property of Rights of servtheir masters, and might be bought and sold as their goods; so that they were considered as subjects of commerce rather than as persons; and whatever they acquired, either by testament or their own industry, accrued to their masters. The Romans had also a kind of slaves, called adscripti, or adscriptitii, who were bound to perpetual service in cultivating a particular field or farm, and who were rather slaves to that farm than to the owner of it; so that he could not transfer his right in them without alienating the farm to which they were astricted, tit. C. De agric. Much like to these were our ancient nativi, or bondmen; who could not indeed be sold by their masters, but in most other respects resembled the Roman servi; for they had nothing which they could call their own, Reg. Maj. L. 2. C. 12. § 4, 5.; Q. Att. C. 56.: yet they prescribed an immunity from their servitude, by residing for a year together in any royal borough without challenge from their master, Reg. Maj. L. 2. C. 12. § 17. All servants have now of a long time enjoyed the same rights, by our usage, as other subjects, unless in so far as they are limited by statute, or by their own voluntary engage ments. 61. Servants are, by our present law, either necessary or voluntary. Those may be called necessary, whom the law obliges to work. Of this sort are, first, indigent children, who, if they be declared indigent by the magistrates of the borough, or kirk-session, where they are seized, may be compelled, by 1617, C. 10., to serve any of the King's subjects without wages, till their age of thirty: and whatever is gained by their work during that period is gained to their masters. 2dly, Vagrant and sturdy beggars may, by 1663, C. 16., be compelled into service by any manufacturer within the kingdom, at the sight of the magistrates of the place where they are laid hold on. And because few persons were willing to take vagrants into their service, public work-houses are, by 1672, C. 18., ordained to be built in the several boroughs mentioned in the act, for entertaining and setting to work vagrants and idle persons; and the profits of their labour are, by that act, appropriated for the support of the houses. 3dly, If labourers, workmen or servants, shall refuse to serve at the rates fixed by the justices of the peace, the justices may compel them to it, by imprisonment, or farther punish ment Necessary servants, indigent children, vagrants, colliers, and salters. Book I. ment at their discretion, 1661, C. 38 247. By labourers or servants in this clause of the act, may be understood all able-bodied men or women, who have neither a sufficient stock for their maintenance, nor any settled employment, though they should not have, at any time formerly, earned a livelihood by service. In this class of necessary servants may be reckoned colliers, coal-bearers, salters, and other workmen necessary for the carrying on of collieries and salt-works, as they are particularly described in 1661, C. 56. These are, by the law itself, without any paction, bound merely by their entering upon work, in a colliery or salt-manufactory, to the perpetual service thereof; and if the owner sell or alienate the ground upon which the works stand, the right of the service of these colliers, salters, &c. passes over to the purchaser, as fundo annexum, without any express grant; yet, to cut off all cavilling, it is usual to insert in the disposition a special clause, making over that right to the grantee. If the proprietor have a separate colliery at a moderate distance from the first, he may compel the collier to work at either of the two; and the same is the case with salters. All proprietors of colliers are prohibited to receive into their service those who fall under the description of the act 1661, without a testimonial from their former master; and where colliers and salters desert from the service they are bound to, and enter on work elsewhere, he who receives them without a testimonial must restore them to their master within twenty-four-hours after they are reclaimed, under the penalty of L. 100 Scots, provided they be reclaimed within a year from their desertion, 1606, C. 11. If the deserters should not be reclaimed within the year, he cannot indeed plead the benefit of that clause by which the possessor is obliged to restore them under a penalty; but he does not, by that short prescription, lose his property in the deserters; for the act, which was made in favour of coalmasters, ought not to be so interpreted as to cut off or weaken any right to which they had been entitled by our former law or custom, Fac. Coll. 1. 117. (Dundas, DICT. p. 2355). There is no room for this legal astriction in the following cases : First, If a child shall, during his pupillarity, while he is yet incapable of consent, be entered as a bearer into a colliery, by his parent, or other kinsman, he can hardly be said to be astricted in the terms of that statute, unless he shall continue to work in the colliery, after puberty. 2dly, Children who enter as bearers to their fathers, in a work to which the father was not foriginally astricted even after having attained the age of puberty, are presumed to have been employed by the father to assist him, and so are left at liberty to withdraw their service from that work without the proprietor's consent; because the proprietor, who was no party to any private agreement that may have passed between the father and son, cannot, by that agreement, acquire any right or power over the son; agreeably to the rule, Res inter alios acta, aliis nec nocet nec prodest. But it may be doubted whether this presumption would exempt the son from becoming bound, by entering under his father to a colliery to which the father was from the beginning astricted. It may be added, 3dly, That colliers, salters, &c. where the work to which they are astricted is either given up by the proprietor, or not sufficient for their maintenance, may lawfully engage in other works for their necessary subsistence, Hope, Coalheughs, 247 This III. C. 40. power of the Justices to fix the rate of wages is taken away, Stat. 53. Geo. But this manner of TITLE VII. Coalheughs, March 7. 1616, (DICT. p. 2349). vants. Powers of the master over his servants. 62. Voluntary servants are those who enter into service without Voluntary sercompulsion, by an agreement or covenant, for a determinate time; either simply for bed, board, and clothing; or also for wages †. Under voluntary servants may be included apprentices, (from the French Apprentif), who engage to serve under a merchant, artificer, or manufacturer, for a determinate number of years, on condition that the master shall, in that time, instruct them in the knowledge of his particular art or profession. Minority is the proper age for apprentices to enter into these engagements. Where a pupil is to be bound, the father, tutor, or some kinsman, usually engages for him; but no action lies upon the indentures against the pupil himself. Indentures entered into by a minor pubes, who has By stat. 15. Geo. III. C. 28. it is enacted, that from and after July 1. 1775, no person who shall begin to work as a collier, coal-bearer, or salter, or in any other way in a colliery or salt-work, in Scotland, shall be bound to such werk, or to its owner, in any other way or manner different from what is permitted by law with regard to servants and labourers; and that they shall be deemed free, and shall enjoy the same privileges, rights, and immunities, with the rest of his Majesty's subjects. It is also provided by this statute, that owners or lessees of such works may take apprentices: That persons under twenty-one years of age, at July 1. 1775, bound to these works, shall be free after seven years' service from that date; if above twenty-one and below thirty-five years, after ten years; and if between thirty-five and forty-five years, after seven years; but these last classes only, provided they have found an apprentice, if required, of eighteen years or upwards. Where the bondsmen are above forty-five years, they get entirely free after three years' service. This statute, however liberally intended to the colliers, failed in having its full effect, by the great variety of conditions under which it prescribed their emancipation, as many of them remained in a state of bondage, from their not having complied with the conditions, or their having become subject to the penalties, in the act. The continuance of their servitude was also owing, in a great measure, to a general practice among owners and lessees of coal, of advancing considerable sums in loan to the colliers, as a temptation to enter into or continue engagements for a limited time. These sums the colliers never intended to repay, though the debt was kept up against them; and, at the end of the agreed term, as they were uniformly unable to discharge the debt, a farther indulgence was only to be purchased by a renewal of their engagements; so that it seldom occurred that they changed masters, unless where their new employer bought up the debt, which he again would transfer in his turn. This new bondage, of their own creating, gave rise to alarming combinations among the colliers; and the whole system having been brought before Parliament, a law was passed, which remedied those evils, and put this description of men on a footing, in point of legal rights, with other labourers. It is provided, by stat. 39. Geo. III. Č. 56. June 13. 1799," That, from and after the passing of this act, all the colliers in Scotland, "who were bound colliers at the time of passing the act 15. Geo. III., shall be free "from their servitude, and in the same situation in every respect, as if they had regularly obtained a decree in the manner directed by that act. 2. This statute extends to the colliers, the acts cited in the text, 1617, C. 8., and 1661, C. 38., in so far as they relate to the fixing and appointing of the ordinary hire and wages of labourers, workmen, and servants, upon application of the party aggrieved 248, declaring two justices a quorum, but that no coal-master or lessee can act. 3. All action and diligence are denied for money advanced by coal-masters, or others on their behalf, to colliers, or for debts due by colliers, which may be acquired by coal-masters or others for their account, whether prior to or during their service, and in view of the engagements; excepting only sums advanced to any collier during his service for the support of his family in case of sickness: For these, the coal-master may retain from the collier's weekly wages, one-twelfth part of the sums advanced, till the principal sum, without interest, be paid up; and he has action for the balance, in case the term of service expire before complete payment. 66 If the engagement is only for one year, it may be proved by witnesses: If for a longer period, it can only be established by writing; Kilk. No. 10. voce PROOF, Caddel, DICT. p. 12416. See further as to the obligation between master and servant, B. 3. Tit. 3. § 16 249. 248 But vid. supr. not. 89. and 247. 249 As to the master's liability for the conduct of his servant, see Ibid. § 33. and 46. BOOK I. Poor, how provided for. has no curators, are valid; but may be set aside on the head of minority and lesion; ex. gr. if a young gentleman of fortune should bind himself to an employment beneath his birth or estate, or oblige himself to pay an enormous apprentice-fee. All masters have a power of moderate chastisement over their servants, whether voluntary or necessary; and the masters of public workhouses are, by 1672, C. 18., allowed to go all lengths in correction, life and torture excepted. It has been said by some writers, that one cannot bind one's self to perpetual service; such obligation being contrary to liberty, which is an unalienable right. But it is hard to conceive, how an engagement of that sort, which is to last for life, is more inconsistent with liberty, than one which is to expire after twenty or thirty years. And there appears nothing repugnant, either to reason, or to the peculiar doctrines of Christianity, in a contract by which one binds himself to perpetual service under a master, who, on his part, is obliged to maintain the other in all the necessaries of life, Grot. De jure bell. L. 2. C. 5. § 27. This however is certain, that excepting the case either of Turks or Moors, made slaves by way of reprisal, or of Negroes bought for the use of the European settlements in the Indies, the power claimed by masters, of selling their servants, is not allowed in any Christian country. And by the practice of Holland, negro slaves, as soon as they set their foot in the Dutch territory, may assert their freedom from servitude, in spite of their masters, Voet. ad Tit. De stat. hom. § 3 *. 63. The poor make the lowest class or order of persons. They may be divided into those nuisances to society, who, though they are able, are not willing to work; and such indigent persons as from age or bodily infirmities cannot earn a sufficient livelihood by labour 25°. The punishments inflicted by law on the first sort shall be explained B. 4. T. 4. The poor who are aged, or disabled from work, were appointed to be maintained by a tax to be levied upon the parishes where they were severally born, 1535, C. 22. This tax was to be proportioned among the inhabitants of boroughs by the magistrates; and in landward parishes, by judges named by the King, 1579, C. 74. By a posterior act, 1663, C. 16., a power is given to the landholders in landward parishes, to assess themselves for the maintenance of such of the poor as cannot fully maintain themselves by labour, in the manner specially described in that act, and to demand relief of the half of the sum so raised from their tenants 251 Where the place of a poor man's nativity is not known, the burden of his maintenance falls on the parish where he has had his * It has been absolutely decided, that a slave, brought from the plantations, acquires his freedom on coming to this country, and that he cannot be sent back to his former condition against his consent; Fac. Coll. Jan. 15. 1778, Knight, Dicт. p. 14545. The late proceedings in Parliament relative to the abolition of the slave trade are well known. 250 Those persons, also, have been found entitled to relief under the poor laws, "who, though in ordinary seasons able to gain their livelihood, are reduced, during "a dearth of provisions, to have recourse to a charitable supply. And an extraordi"nary assessment may for that purpose be levied;" Pollock, 17th January 1804, Fac. Coll. DICT. p. 10591. 251 By the statute, the assessment is ordered, "the one half thereof to be payed by "the heritors, either conform to the old extent of lands within their paroch, or con"form to the' valuation by which they last payed assessment, or otherways, as the "major part of the heritors shall agree, liferenters and wadsetters always being liable "during their rights as heritors:-And the other half thereof to be laid upon the te"nants and possessors, according to their means and substance.” As to the first branch of this enactment, see the penult paragraph of note* p. 211. As |