540. Notwithstanding interdiction, the prodigus is moreover entitled to make a settlement of his heritable estate mortis causa, in the same manner as the most unlimited proprietor. (Mansfield v. Stuart, June 26, 1841.)

541. As interdiction does not affect moveable property, it is competent, on the personal obligations of an interdicted person, to raise and execute all the diligence of the law, with the single exception of attaching his heritage. (Fraser, 563.)

542. An interdicted prodigus may vote at the election of a member of Parliament. (Wight on Elections, 268; Fraser, 565.)

543. A judicial interdiction cannot be taken away otherwise than by the sentence of the Court which imposed it. (Stair, i. 6. 43; Ersk. i. 7. 55; More's Notes, p. 45.) Voluntary interdiction falls by the death of the interdictor (Ersk. ib.; More's Notes, ib.; Hepburn v. Hepburn, M. 7154); or the prodigus may recall it with the consent of his interdictors (Ersk. i. 7. 55; Fraser, 567.)

CHAPTER IV.

MASTER AND SERVANT.

544. The complete family, both in ancient and modern times, has been regarded as embracing the servants of the house; and service has thus generally been considered as belonging to the domestic relations. But so mercenary has the relation become in our own day, that the contract of service might, with equal propriety, be treated of under the head of Letting and Hiring.

545. Service is a contract whereby one person agrees to pay to another a certain sum of money for services, which the other agrees to render him for a definite period. In all free service there is an implied condition to the effect that the contract

H

shall be voidable by either party, at any time, on payment to the other of the damages which his failure to implement it may have occasioned him. (Fraser, Master and Servant, 3.)

546. Every person of lawful age, and not subject to any natural or legal incapacity-that is, every person who is capable of contracting-may be either a master or a servant.

547. A pupil cannot enter into a valid contract of service either as a master or a servant; and it is consequently necessary, when he contracts to serve, that either his father or his tutor should become bound for him. (Ersk. i. 7. 14.)

548. A minor may enter into the contract of service, in either capacity, without curators (Ersk. i. 7. 33; Campbell v. Baird, Feb. 13, 1827); but the contract of service, like other contracts, will be reducible by him on proving lesion; and if he have curators, or if his father be alive, a contract of service entered into by the minor, without consent, is null. (Ersk. i. 7. 33; Stair, i. 6. 33; Low v. Henry, Nov. 14, 1797; Hume, 422.) Where the servant, being a skilled workman, was seventeen years of age, it was held that the protection of curatory was unnecessary. If, in the ordinary case of a minor entering into a contract of service, the father be alive, or the minor have curators, the contract is not merely reducible, but is absolutely null; but if he falsely hold himself out to be major, or that a party consenting with him is his curator, the minor will be bound by the contract. (Fraser, 9.)

549. A married woman in England, and probably with us, can hire domestic servants as her husband's representative (Fraser, 14, 252); but she cannot become a servant to another without his consent; and should she attempt to do so, he is entitled to recover her person. (Fraser, 15; Whyte v. Cuyler, 1 Esp. N. P. C. 200, 6 T. R. 176.)

550. The contract of service may be entered into either verbally or by writing.

I. VERBAL CONTRACT.

551. A verbal contract of service can only endure for one year, [if entered into in Scotland; but if made in a country where verbal contracts may be made for a longer period (as in England), it will be enforced in Scotland, if it falls to be implemented there]. (See Fraser, 29; Caddell v. Sinclair, M. 12416; Dale v. Dumbarton Glass Co., Feb. 5, 1829.)

552. A verbal contract of service for more years than one is not effectual even for the usual term, unless it has been partially implemented. (Paterson v. Edington, June 17, 1830.)

553. It is complete when the parties are agreed as to the hire, the duration, and the nature of the service.

554. It may be proved by witnesses. (Fraser, 30.)

555. It lies with the party who seeks to enforce the contract to prove its terms. There is no presumption in law that such contracts are unconditional; and so, if the defender plead a condition in bar, the pursuer (or party founding on the contract) must prove its terms. (Forbes, Milne, Nov. 17, 1827; Thomson v. Isat, May 18, 1831.)

556. If it be agreed that a contract of service for one year shall be reduced to writing, the contract is incomplete till the writing be executed, and either party is entitled to resile. But if the service has been entered on, the contract will be effectual for the period, and on the conditions usual in the particular employment, though no writing should ever follow. (Caddell v. Sinclair, M. 12416; Paterson, June 17, 1830.)

II. WRITTEN CONTRACT.

557. If the contract of service is to endure for more than one year, it must be reduced to writing, and cannot be proved by parole evidence. In this respect it stands on the same footing

with the contract of lease. (Paterson v. Edington, June 17, 1830; Kennedy v. Young, March 13, 1837.) But if such a contract is entered into, verbally, in a foreign country, by the law of which it would be held binding, provided the service had been actually entered upon, it would, on the principle of lex loci contractus, be held binding with us. (Fraser, 28.)

558. The contract of service of any labourer, artificer, manufacturer, or menial servant, does not require any stamp. (55 Geo. III. c. 184.) The exemption applies only to proper cases of hiring, and therefore not to contracts "relating to the service or tuition of any apprentice clerk, or servant placed with any master to learn any profession, trade, or employment" (33 and 34 Vict. c. 97, sec. 39). It applies to the hiring of firemen and stokers on board a steamer, who are not mariners, but not to the employment of clerks, or to cases of mixed contract. (Fraser, 34.)

559. The writing must consist either of a probative deed, or of the interchange of holograph writings between the parties. (Paterson v. Edington, ut sup.)

560. Defects in the legal solemnities cannot be supplied by a reference to the oath of the party who is attempting to invalidate the contract; but they may by proof (either by reference to oath or otherwise) of what is called rei interventus, that is to say, of any transaction between the parties which has taken place in consequence and on the faith of the contract. Rei interventus will render a verbal engagement binding only for one year; but it will validate an informal written contract for the whole term. The rei interventus itself may be proved by parole evidence. (Fraser, 34-36.)

561. Earnest, or arles, is a sum of money given by the master to the servant, in token that the contract is complete. Such earnest is not necessary to constitute the contract, except by force of a uniform and notorious local custom; and even though given, it will not constitute rei interventus so as to validate a

contract otherwise defective. Its only value is, therefore, as an adminicle of proof. Where there is a uniform and notorious local custom that there is no contract until arles is given, either party is entitled to resile, while arles has not passed. 36.)

(Fraser,

III. IMPLIED CONTRACT.

562. Where the contract has expired, and the relation between the parties continues unchanged, they are held to have renewed the contract by tacit consent or relocation, without any new engagement being entered into. This presumption, however, will be removed, should the local custom require express renewal, as is said to be the case in the Border counties. The period of renewal cannot be longer, though it may be shorter, than one year, since the implication of law is that a new verbal contract has been entered into. (Fraser, 39 et seq.)

563. Where one near relation lives in another's house, and discharges the duties of a servant, there being no contract, are wages due? The decisions of the Court have varied considerably. At first it was held that the presumption of law was, that services so rendered were gratuitous; afterwards it was held there was no presumption either way, but that the party averring the contract must prove it; then again it was held, that if the services be admitted or proved, the presumption of law is in favour of payment, unless the contrary be established. "In all cases of this description, where there is a clear proof of service rendered and no wages paid, wages are due, unless it be made out that there was an agreement that the service should be gratuitous; and this presumption of law is not overturned by the circumstance that the parties were relations, that the servant was poor, and that there was no express agreement for wages." -Per Lord President (Anderson v. Halley, June 11, 1847, 9 D. 1222.) [This dictum must, however, on a review of the whole