*、、'）; （.） 。 ??!！！ §§ TREATISE ON T H E L A W OF SC O T L A N D PELATIVE TO MASTER AND SERVANT, AND MASTER AND APPRENTIC E. BY THOMAS BAIRD, WRITER, PERTH. AUTHOR, OF A PRACTICAL TREATISE ON CESSIO. EDINBURGH : THOMAS CLARK, LAW BOOKSELLER. M D C C C X L. H1) l; 880 , S h 2. £) 14 EDINBURGH : Printed by JAMEs BURNET. ///5 “F/A 1962 TO ADAM ANDERSON, Esq. Advoc ATE, SHERIFF OF PERTHSHIRE, THIS TREATISE IS, B Y P E R M I SS I O N, MOST RESPECTFULLY DEDICATED, BY THE AUTHOR. P. R. E. F. A. C. E. THE contract of Master and Servant is almost daily the subject of dispute before the different judicatories of Scotland. Although this be the case, however, the legal rules which go- vern so important a relation in life have hitherto been allowed to lie scattered over so many works of authority, frequently out of the reach even of the professional inquirer, as to create great doubts regarding the law in almost every question which occurs. With the view, in some measure, of supplying this defect, the Author has been induced, during leisure from other avocations, to collect and embody the Law of Master and Servant in a short treatise, in the hope that it may prove useful, not only to the profession, but to the public in general. In stating the law regulating the Contract of Service, it appeared best to give it in a condensed form, and to cite the authority in support of each rule or proposition. By this plan, the text, where it admits of a doubt, can be the more easily tested by a reference to the authorities themselves. Where precedents applicable to certain points of the contract could not be found, recourse has been had to the decisions of She- riffs; and though these cannot be regarded as authoritative of the law, yet every person will admit, that they are justly entitled to very great weight and respect. Where usage or practice is referred to, as settling the law on any point, it may be taken as the result of a strict inquiry, VI T’REFACE's for the fidelity of which, as well as for the correctness of such views, as the Author may have occasionally ventured to ex- press as his own opinion, he stands answerable. All the more important statutes bearing upon the law of Master and Servant, together with a variety of styles in re- ference to desertion, &c. have been given in an Appendix to the work, which it is to be hoped will be found useful. The Author avails himself of this opportunity of acknow- ledging the kindness of professional friends in giving him in- formation of much use for his work. He begs also to express the great obligations under which he is laid, to Mr. Sheriff Barclay of Perth, for the valuable suggestions given to him during the progress of the work, and for that gentleman's revision of the manuscript. The Author has spared no labour in collecting materials for the treatise from every quarter where it could be obtained; and the result of his exertions is now offered with much de- ference, and with a consciousness that, notwithstanding every care to insure accuracy, errors may be detected. It is hoped, however, that the inaccuracies which may exist will not be of such a nature, nor of such frequency, as to warrant unkind CellSUll’e, C O N T E N T S. PART FIRST. MASTER AND SERVANT. Page CHAP. I. PERSONs who MAY CONTRACT For SERVICE Yº- l II. PERSONS wiro CANNOT CONTRACT - tºº - 3 III. VERBAL CONTRACTS - tºº * - 4 1. How constituted -> gº - 4 2. Contracts entered into on Sunday - 6 3. Arles or Earnest - º tººs - 7 4. Duration of Verbal Contracts – - 8 5. Verbal Contracts, how proved º - 9 6. Refusal to enter Service º wº 9 IV. WRITTEN CONTRACTs - - tº- - 10 2. Contracts with Companies º º 13 3. Conditions in the Contract tºmº - 14 4. Interpretation of Contracts - - 16 5. Subscription of Contracts - wº - 18 6. Duplicates of Mutual Contracts º- 19 7. Duration of Written Contract ſº – 20 8. Refusal to implement Contract - 20 W. SERVICE of RELATIONs, &c. 1. Children – * - tºº - 21 2. Illegitimate Children - * tº- 23 3. Adopted Children - wº- tº- - 23 4. Orphans sº tº - - 24 5. Brothers and Sisters º tº - 24 6. Nieces º - º - 25 7. Relations generally - gº - 26 8. Service by Friends º rºs - 26 viii CONTENTS, CHAP. VI. PERIODs of SERVICE. . Domestic Servants tºº - º . Rural Servants - *s sº . Artizans, Handicraftsmen, &c. sº -º-º: . Labourers - º - tº- . Clerks, Shop or Warehousemen - - . Skilled labour - - - : VII. HouRS OF WORK - º - * VIII. How CoNTRACTs of SERVICE ARE TERMINATED AND RENEWED, . Warning to Domestic Servants . Period of notice to do. sº- tº- . Local Usage - * - * . Usage of Trade - - - . Clerks and Shop Assistants - º . Agreement - - º- . Bankruptcy, Death * - gº : Page 26 27 28 28 28 29 29 IX. SERVANTS’ REMOVAL FROM FREE POSSESSIONS X. INTEREST IN THE ContRACT of SERVICE tº 2. Intimation before Action for enticing away or retaining a Hired Servant - 3. Damages for enticing away - gºss XI. REVEALING SECRETs of MASTER’s BUSINESS—IN- venTIONS BY SERVANTS IN MACHINERY, &c. XII. OBLIGATIONS ON MASTERs. 1. Domestic Servants – sº - 2. Workmen ºw -> - * 3. Clerks, &c. - * * XIII. OBLIGATIONS ON SERVANTs. 1. Domestic Servants * - º 2. Workmen, &c. - sº - 3. Clerks - - - - º 4. Waiteis, Chambermaids, Boots, &c. 32 34 35 36 37 38 39 39 4] 43 44 49 56 58 59 77 8] 8] CONTENTS. ix CHAP. XIV, EFFECT OF SERVANTs’ EvDENCE ON BELIALF OR Page MASTERs - - - 83 XV. SICKNESS, MEDICINEs, &c. I.—Ordinary Sickness. 1. Wages tº- *g sºme m 85 2. Board - - - - 86 3. Medicine - º - - 87 4. Power of Master over Servant while under Sickness - ºr -> - 87 5. Servants' Indulgence after Sickness - 88 II.-Injury in the Performance of Duties. 6. Wages and Board -. - - 89 7. Medical Attendance and Medicines - 90 8. I)eath of Servant º *- - 9I III.-9. Workmen *- º *- 92 IV.—10. Clerks - - - - 93 XVI. WAGES. 1. Domestic Servants - tºº * 93 2. Master's Insolvency - -4 - 98 3. Bankruptcy of Master - - 99 4. Where the Master dies - - 100 5. Recovery of Wages - * I02 6. Clerks, &c. - - - - 105 7. Master's Bankruptcy - º 106 8. Artificers, &c. - - - 107 9. Recovery of Wages due Artificers . 111 10. Master's Bankruptcy - º - 112 11. Disputes respecting work performed 113 12. Risk - - sº - - 118 13. Cases decided on Appeal by the Scotch and English Judges, under the Assessed Tax Acts, relative to Duties payable for Ser- vants – - - - - 119 XVII. LIVERY AND PLAIN CLOTHES - *- I29 XVIII. PERQUISITEs—Don ATIONS TO SERVANTs. 1. Perquisites - - - - 13] 2. Donations º- * - 133 X CON'TENTS. Page 3. Legacies º t- tºº - 134 4. Undue influence over Masters by Servants in cases of Bequests tº- tºº 135 5. Obligations against the Policy of Domestic Relations tº tºº tº- - 135 6. Bonds or Obligations granted, ob turpem COMſ/SC/?? - sº tº- łº 136 CHAP. XIX. LIEN or RIGHT OF RETENTION FOR WAGES - 139 XX. ARRESTMENT of WAGES º tº 140 XXI. TRIENNIAL PRESCRIPTION - gº - 144 XXII. MANDATE. 1. Contract of Mandatory *Eº *- 148 2. Express Mandate tº- tº – 149 3. Implied Mandate - gºs Eº 149 4. General Mandate tº- tºº - 152 5. Special Mandate - * usº 152 6. Praepositura in Negotiis Domesticis - 152 XXIII. LIABILITIES OF MASTERS FOR SERVANTs. 1. Liabilities of Masters gº sº 153 2. Liabilities of Servants tºº, – 158 XXIV. DESERTION. 1. Procedure under the Common Law 159 2. Procedure under the Statute 4 Geo. IV. c. 34. * tº dº gº 164 3. Procedure under it tºº tºns - 168 4. Remarks on the Law for Enforcing a Contract of Service º gº 173 XXV. CoMBINATION LAWS tºº $ tº – 179 XXVI. GIVING THE CHARACTER of A SERVANT 184 XXVII. TUTORS AND Governesses ass 193 CONTENTS, xi PART SECON ID. MASTER AND APPRENTICE. Page CHAP. I. INDENTURE OF AN APPRENTICE tº 196 II. ASSIGNING AND DISCHARGING INDENTUREs. 1. Assigning - - tº- 201 2. Discharge of Consent - --> 202 3. Discharge by a Magistrate *- 203 4. Discharge by circumstances *- – 204 5. Return of the Premium, or Apprentice Fee 207 6. Where the Master retires from Business 208 III. OUT AND IN Door APPRENTICTs - 208 IV. MASTER’s INTEREST IN THE CONTRACT OF APPREN- TICESHIP - º tº- – 210 W. ENLISTMENT OF APPRENTICES -- 210 VI. OBLIGATIONS ON MASTERS - - 212 VII. CoMPLAINTS BY APPRENTICES AGAINST MASTERs 217 2. By Masters against Apprentices vº 220 VIII. DESERTION OF APPRENTICE FROM SERVICE. 1. Procedure at Common Law - – 223 2. Under the Statute sº- - 225 IX. CAUTIONERs For FULFILMENT or AN INDENTURE 228 X. CHIMNEY Swi:EPERs - - mºs 231 ADDENDA tº- ſº * * - rºº 233 xii CONTENTs. APPENDIX. I. Powers of Magistrates to punish Workmen and Appren- tices for Misbehaviour and Desertion. Page 20 Geo. II. c. 19. ** tº tº sº - 33 Geo. III. c. 55. tº ū-ºº! gº 248 4 Geo. IV. c. 29. wº fº . - 250 4 Geo. IV. c. 34. – tº tºº 253 10 Geo. IV. c. 52. sº tº º 257 Form of Application for Desertion and Misbehaviour, 258 II. Chimney Sweepers. 4 and 5 Will. IV. c. 35. * -º tº ; sº tº 264 3 and 4 Vict. c. 85. tº tº tº a tº- - 273 III. Frauds and Abuses committed by Workmen. 17 Geo. III. c. 56. “º gº tº 278 IV. Arbitration in Disputes with Masters regarding work, &c. 5 Geo. IV. c. 96. wºme , as gº – 297 1 Vict. c. 67. tº gº tº 314 W. Combination. 6 Geo. IV. c. 129. gº sº tº 315 A L H S T OF THE ABBREVIATIONS USED IN THIS TREATISE. Abbreviations. Adol. and Ellis 1 Alison, 15 Anst. Bank. 1. 20. 19. B. and C. Bell’s Prin. s. 172. Bell’s Illust. Bell's Com. Bell's Law Dict. Bing. H. Black. Ch. Black. Blair B. and Adol. B. and A. Bott, P. L. Bos. and P. Br. Stair Br. Sup. Bull, or B. N. P. Bur. Bur. S. C. Reporters and Authors. Adolphus and Ellis' Reports Alison on the Criminal Law of Scotland, 1st vol. p. 15. Anstruther's Reports Lord Bankton's Institutes of the Law of Scotland. 1. 20. 19. signifies Book 1. title 20, and section 19 Barnewell and Cresswell’s Reports Professor Bell's Principles of the Scotch Law, seetion 172 Professor Bell's Illustrations of the Prin- ciples. 3 volumes Professor Bell's Commentaries on the Law of Scotland, and on the Principles of Mercantile Jurisprudence. 2 volumes, 5th edition Bell's Law Dictionary Bingham's Reports Henry Blackstone's Reports Chitty's edition of Blackstone's Commen- taries on the Law of England. Chris- tian's edition is marked Christ. Blair's Manual of a Scotch Justice of the Peace Barnewell and Adolphus’ Reports Barnewell and Alderson's Reports Bott's Poor Law Bosanquet and Puller's Reports Brodie's edition of Lord Stair's Institutes of the Law of Scotland Brown's Supplement to Morrison's Dic- tionary of Decisions Buller's Law of Nisi Prius Burrow's Reports Burrow's Settlement Cases Name of Court. King's Bench Exchequer Court of England King's Bench Common Pleas Common Pleas King's Bench King's Bench Common Pleas Court of Session King's Beneh King's Bench xiv. LIST OF ABB REVIATIONS. Abbreviations. Cald. - Camp. Car. and Pay. or C. and P. Ch. on Mas. & App. Ch. Burns, or Ch. Burn's J. P. Connell Craigie App. Cas. C. M. and R. Prof. Davidson's Lec. Dec. of the English Judges Deas' Rep. Domat Dow's Rep. D. and R. Dowl, East Elchies' Dec. Eng. Law Mag. M*A.’s Ersk. Iv. Ersk. Esp. Fac, Coll. Fell Fountainhall Godson Hailes 1 Hume, 780 Hume's Lec. Hume's Dec. Hunter Reporters and Authors. Caldecott's Settlement Cases Campbell's Reports Carrington and Payne's Reports Chitty on the Law of Master and Apprentice Chitty's edition of Burn's English Justice of the Peace. 6 vols. Connell's Sketch of the Law Craigie and Stewart's Reports. (3 Parts) Crompton, Meeson, and Roscoe's Reports Professor Davidson's (of Glasgow) Lec- tures on the Scotch Law, (manuscript copy) The Decisions of the English Judges, ap- pointed during the Commonwealth of England to decide civil causes in Scot- land Deas and Anderson's Reports Domat on the Civil Law. 2 vols. Dow's Reports Dowling and Ryland's Reports Dowling's Practice Cases East's Reports Lord Elchies' Decisions The English Law Magazine M*Allan's edition of Erskine's Institutes of the Law of Scotland -- Lord Ivory's edition of Erskine's ditto Espinasse's Reports Faculty Collection of Decisions Fell on the Law of Guarantees Lord Fountainhall's Decisions Godson on the Law of Patents Lord Hailes's Decisions Hume's Commentaries on Crime, 2 vols. Professor (late Baron) Hume's Lectures on the Scotch Law (Manuscript copy) Baron Hume's Decisions Hunter on the Law of Landlord and Tenant Name of Court. King's Bench Nisi Prius Nisi Prius House of Lords Exchequer Court of England Court of Session House of Lords King's Bench King's Bench, Common Pleas, and Exchequer King's Bench Court of Session King's Bench and Common Pleas Court of Session Court of Session Court of Session Court of Session - LIST OF ABB REVIATIONS. XV Abbreviations. Hutch. Jurist Kilk. M“Far. Rep. M“G. on Aliment M. and R. M. and S. M. and W. Moore More Mor. Mur. Rep. N. and M. N. and P. Paley Peake Pothier Lord Ray. R. and M. Scott S. and S. Shaw's App. Cas. Sh. Crim. Cas. Sh. Digest. S. D. and S. D. B. Smith Stark. Reporters and Authors. Hutchison's Scotch Justice of the Peace, 4 vols. “The Scottish Jurist,” conducted by Ad- vocates, giving weekly the decisions of Lord Kilkerran's Decisions M“Farlane's Reports M“Glashan on the Law and Practice in Actions of Aliment Manning and Ryland's Reports Maule and Selwyn's Reports Meeson and Wilsby's Reports Moore's Reports More's Supplement to Lord Stair's Insti- tutes. Morison's Dictionary of Decisions. rence is made to the page. Murray's Reports Refe- Neville and Manning's Reports Neville and Perry's Reports Paley on the Law of Principal and Agent Peake's Reports Evan's translation of Pothier on Contracts, with an Introduction and Notes illus- trative of the English law Lord Raymond Ryan and Moodie's Reports Scott's Reports Simon and Stewart's Reports Shaw's Appeal Cases, with Wilson's Con- tinuation Shaw's Reports —— Digest of Cases decided in the Shaw and Dunlop's Reports, with Conti- nuation by Bell and J. Murray Smith on Mercantile & Commercial Law Starkie's Reports Name of Court. Court of Session Court of Session Scotch Jury Court King's Bench King's Bench King's Bench Common Pleas Court of Session Scotch Jury Court King's Bench King's Bench Nisi Prius Nisi Prius Common Pleas Chancery House of Lords Justiciary Court Court of Session, Teind and Justiciary Courts, and House of Lords, from 1821 to 1838, and Scotch Jury Court, from 18] 5 to 1838. Court of Session Nisi Prius xvi. LIST OF AB.B REVIATIONS. Abbreviations. Reporters and Authors. Name of Court. Starkie - Starkie on the English Law of Libel and Slander Swint. Swinton's Reports Justiciary Court Tait, voce Servant, Tait's Duties of a Scotch Justice of the or Tait, J.P., or Tait Peace Tait on Evid. Tait on the Law of Evidence Taunt. Taunton's Reports Common Pleas T. R. Term Reports King's Bench Wes. Vesey's Reports * Chancery Ver. Vernon's Reports Wallace's Prin. Wallace's Principles of the Scotch Law ERRATA. Paragraph 34, last line, for unrep. ; Hume's Lec. read Hume's Dec. 383 58, seventh line, for hold read holds - —— 59, thirteenth line, for unrep. read Hume's Dec. —— 64, third and fifth lines, for plantiff read plaintiff 150, after the word observed, on the second line, delete “in the case of a tutor hired for the year” —— 356, last line, for necessarily read unnecessarily —— 386, first line, for servant is read servant are —— 409, last line, for argument read agreement —— 411, eighth line, for 368 read 386 — — 427, fifth line, after ought not insert to — 589, twenty-sixth line, for elementary read alimentary L A. W. OF CONTRACTS OF SERVICE. PART FIRST. MASTER AND SERVANT. CHAPTER I. PERSONS WHO MAY CONTRACT FOR SERVICE. 1. GIRLs above twelve years, and boys above fourteen years of age, require parental consent to a contract of service. If the parent be dead, the consent of their curator or some kins- man is necessary. But if the minor be destitute of these, he can engage, for service, to him, is a beneficial contract. Ersk. 1. 7. 62; Campbell, 13th Feb. 1827; Harvie, 7th March, 1829, 7. S. D. 561. In the latter case, however, the stipu- lations imposed on the minor must be fair and equitable. 2. The children of persons in the humblest ranks of life, may, with parental consent, contract for light work, under the above ages,—as herds, &c. Keiths v. Archer, 24th Nov. 1836, Jurist. See 10. .. - 3. Persons who have attained majority, and are of same mind, may contract. - 4. Also, persons who are deaf and dumb, if they have the use of reason, and appear to understand the engagement, and express consent by their ordinary known signs. Bro- die's Stair, 118. 13. But if the contract be not explicitly made known, it is not obligatory. 1 Br. Stair, 115. 11. A. 2 PERSONS WHO MAY CONTRACT FOR SERVICE. 5. The blind can contract. See 77. 6. Married women may engage, with consent of their hus- bands, for in or out door work, where they can return home at night to their families. 7. They may, in certain situations, engage as servants, —for example, where the husband deserts the society of his wife, and resides abroad; or, where his residence is unknown ; or, where he is banished by law, or separated from her by enlistment. The necessity of her circumstances, in such cases, compel her to the engagement, which is subject to this ex- ception, that if the husband shall appear and claim her soci- ety, the master cannot detain her. 2 Pothier, 31. Churn- side, 11th July, 1789, Mor. 6082; Orme, 30th Nov. 1833, 12 S. D. B. 149 : Br. Stair, 34, foot-note ; Ersk. 1. 4. 25. In England, when the woman's husband is civilly, though not physically defunct, she may carry on business, as if she was feme-sole, for her own support. 8. But, if the woman has a young family, requiring mater- mal care and attention, she cammot engage as a servant, to live apart from them, because the public good requires her care and protection, or the care of Some qualified person, in her absence. 9. Aliens are subject to the law during their residence in Scotland, and can oblige themselves as servants; but no da- mages will fall to the master, if the alien be removed out of the country by government, because the master is presumed to have had that contingency in view at the time of engaging. The Alien Aet, 6 and 7 Will. IV. c. 11, does not apply to the domestic servants of foreign ambassadors or other public ministers, nor to aliens resident in Great Britain three years, prior to the passing of the statute. But aliens coming to Britain, subsequent to its date, are obliged to observe the enactments in regard to periodical intimation of residence. An alien ranks under the head of alien friend, or that of alien enemy. The latter cannot contract. Smith, 16. PERSONS WHO CANNOT contRACT. 3 CHAPTER II. PERSONS WHO CANNOT CONTRACT. 10. Girls under twelve, and boys under fourteen years of age, cannot legally contract; but it frequently happens, how- ever, that children of persons in the humblest ranks of life are necessitated to engage for light kinds of service under these respective ages. See 2. and Factory Act. 11. Idiots and imbeciles are incapable of consent. Ersk. 1. 7. 48. - 12. A party cannot, during the currency of his engagement, serve another master in the same line of business. Dickson, 1st November 1816, 1 Mur. Rep. 141; 1 Stark, 287; Paley, 105-6. 13. Neither can a journeyman, engaged by the piece, serve another master before the work contracted for be finished. 5 Ch. Burn’s J. P. tit. Servant. 14. Persons affected with delirium tremens; and persons, when in a state of drunkenness, cannot contract, if the reason be thereby destroyed, because so long as it continues they are in- capable of consent. 1 Pothier, 19.; Ersk. 3. 1. 16. ; M. Kay, 25th Mar. 1831; 5 Sh. App. Cas. 210. It was held, 1st, that a Court ought not to give its aid to one who obtains an agree- ment from another, in a state of intoxication; mor, 2dly, to relieve one from a contract, merely because he was drunk when he made it; but, 3dly, if there be an inducement and seduction to drink, or advantage unfairly taken of the imbe- cility of drunkenness, judicial interference may be justified ; and, 4th, that a state of absolute deprivation of reason by in- toxication invalidates a deed as null and void. Cook v. Clay- worth, 1 Bell’s Illust. 17. See also Gordon v. Ogilvie, 3d February, 1693, 4 Br. Supp. 62; Lord Haltoun, 29th July, 1672. 15. Persons under sentence of outlawry, cannot, until it be recalled, legally contract, because they can claim no protection of their civil rights while branded as a fugitive from the care and authority of the law. They are incapable of bearing testimony, or of suing or defending in any process 4 VERBAL CONTRACTS. civil or criminal. 2 Allison, 350; Cheyne v. Anderson, 4th July 1828, 6 S. D. 1061. A party, discovered to be an outlaw, during the trial of a crime with which he was charged, required to be reponed, before punishment. Wilson, 31st May, 1830, Sh. Crim. Cases, 250. CHAPTER III. VERBAL CONTRACTS. 1. How Constituted. 16. The relation of master and servant arises from the contract between them, which is called the hiring. 17. The objects of the contract are, on the one hand, the selling, for subsistence, one's labour and judgment, or service, with an implied understanding that it will always be properly and faithfully given, when required: and, on the other hand, that the value of the services will be honestly and punctually paid. 18. No prescribed form of words is requisite to complete the contract. The language used, however, must fairly re- present the nature of the duties required to be performed,— and the wages to be paid therefor; and the assent to under- take the performance of the duties, must be freely and vol- untarily given. The act of contracting must be serious; for what is expressed in jest or scorn, is no part of an agreement. 1 Br. Stair, 118; Fell, 35. Any part of an agreement is said to be indetermined, when it is left dependent on an expres- sion, such as, “We will not quarrel about it ; ” or, where part of the wages is left in the master's option, or, as it is call- ed, “ referred to him.” Bargains so loosely gone into are uniformly subjects of dispute and loss to both parties in every case. The whole conditions of the contract should be fixed out and out, before entering on the duties to be performed. 19. When the offer made by the master is accepted of by the servant, the agreement is binding on both parties, from which neither can resile, without the consent of the other. 2 Flutch. 161 ; Tait, voce Servant ; Ersk. 3. 2. l. How constituTED. 5 20. If the acceptance differ from the offer, then the new condition is equivalent to a new offer by the servant, which requires acceptance by the master. Bell's Prin. s. 81. 21. The offer by a master may become ineffectual by his death or bankruptcy before acceptance, there being no final consent or contract. If the period for accepting the offer be limited, it subsists irrevocable during that time, and falls by the expiration of the period without acceptance. Ib. s. 82. 22. If it be conditioned, that the contract will be complet- ed, on the servant producing a satisfactory certificate of cha- racter from his last employer, there is no engagement un- til the condition be fulfilled. Forbes, 17th Nov. 1827, 6 S. D. 75. - 23. Where the master delegates to another a special power to hire servants for him, the contract entered into with them is binding on the master; for he and the agent are, in law, considered to be one person. Paley, 323. But if the agent go beyond his authority, so as to liberate the master; or, if the agent do not disclose the master's name and residence, yet the latter, if he thinks fit, may adopt the contracts that have been entered into, and sue for breach of them. 3 M. and S. 362; 7 T. R. 359 ; 2 Stark, 443 ; Paley, 324. 24. But in seeking to enforce such contracts, there must in all cases exist some degree of authority in the agent em- ployed. 1 Bull, 130; 1 Moore, 155; 1 Burr, 489. The master is subject to have the contracts impeached by any conduct of the agent, which would have had that effect if proceeding from himself. Every species of fraud, misrepresentation or concealment, therefore, in the agent, affects the master. Paley, 325. 25. The agent so hiring for the master is not responsible for the negligence or acts of the servants hired by him. Paley, 402. - 26. A written offer of service sent by post, followed by a letter withdrawing it, which are both delivered to the servant at the same time, is not binding on the offerer because the one letter neutralizes the other. Dunmore, 15th Dec. 1830, 9 S. D. 190. 27. A written offer of service should state a reasonable pe- -{j VERT3 A L CONTRACTS. riod for acceptance by the servant. If the delay in the ac- ceptance, beyond the time allowed, has been occasioned by the offerer himself, as by a wrong address of the offer, the mere expiration of the time mentioned or implied in the offèr, will not discharge the offerer. Bell's Prin. s. 82. Where no time is mentioned, return of post in mercantile affairs is implied ; but in the case of servants, this rule may fairly be extended to the return of two posts. 2. Contracts entered into on Sunday. 28. Agreements entered into on Sunday are not mull in Scotland. Oliphant v. Douglas, 3d Feb. 1663, Mor. 15002; Duncan v. Bruce, March 1684, Mor. 15003; Reid v. Stod. dart, 15th March 1820, 2 Mur. Rep. 238. In England, a con- tract of hire made on a Sunday, between a farmer and a la- bourer, for one year, was held valid. Bayley, J. held, that the statute law did not prohibit labour, business, or work of every description, and that the hiring of a servant by a farmer on a Sunday was not work or business within the meaning of the statute. Besides, the hiring of a yearly servant took place but once a year. Rea, v. Inhabitants of Whitnash, 7 B. and C. 596. Contracts relating to buying and selling, entered into on Sunday, are not valid. 1 Sh. Digest. 317. 29. The hiring of shearers is forbidden on Sunday, un- der a penalty of ten pounds Scots for ilk shearer, one half payable by the hirer, and the other half by the hired. The offender unable to pay, is directed to be “exemplarly punished in his body, according to the merit of his fault.” 1661, c. 18; 1 Hume, 573. Shearers are engaged by the piece with or without victuals, which is called “thraving ;” or to work throughout the harvest at the district rate of wages. In the latter case victuals are allowed when prevented from working by the weather. In general their labour begins at sun-rise and ceases at Sun-set, with intervals of rest. During service they are bound to be faithful and obedient. In England, persons fit for labour may, by the statute law, be compelled to work by the day, in the time of hay or corn harvest. In Scotland, to secure harvest labour, it is, by the act 1621, c. 21, declared, that rural servants “who have served during the winter half-year, can- §º AR. LES OF EARN EST. º not go at liberty the ensuing summer half-year” unless hired to another master. This statute, from the facility in getting labourers, is now unnecessary. 2 Hutch. 161. 30. To serve on Sunday. See 128–9. 3. Arles or Earnest. 31. After a verbal engagment has been fairly concluded by consent, arles or earnest money is sometimes given to the servant as a symbol or mark that the bargain is perfected ; but that is not essential to the validity of the agreement; because it becomes a full and proper obligation the instant that the minds of both parties are formed, and have expressed their con- sent to fulfil their respective parts of the contract. 2 Hutch. 161 ; Tait, voce Servant ; Ersk. 3. 2. 1. ; Fell, 35. 32. The fact, if admitted that arles were given and accepted, is held to be evidence of the mutual consent and completion of the bargain, in the absence of witnesses to prove the com- pletion by consent. 2 Hutch. 161. Ersk. at supra. 33. It is a vulgar motion, that if the arles be returned with- in twenty-four hours after the hiring, it is “a rued bargain,” and both parties are free. There is no such rule in law. Stair, 1. 14.3. But if the arles be accepted by the master, it may af- ford evidence of mutual departure from the contract. 34. Neither the servant by returning, nor the master by agreeing to forfeit the arles, is relieved from the conditions of their verbal contract without the other's consent. 2 Hutch. 161 ; Tait, voce Servant ; Stair, 1. 14. 3. Returning the arles within forty days of the term of entry, with an offer to find a substitute, was held not to relieve the servant of an ac- tion of damages for non-implement of her engagement. Wal- lace v. Bishop, 7th March, 1800, unrep. ; Hume's Lec. 35. But, Professor Bell says, where the giving of arles is established by a local custom, that there is a power to with- draw from the engagement, till the arles begiven. Prin. s. 173. The custom, however, must be uniform and notorious before either party can thus resile. Morison, 27th June 1823, 2 S. D. 424. 36. If the engagement rests on a written acceptance by the servant, of an offer made by a master at a distance, the 8 VERBAL CONTRACTs. want of the arles, notwithstanding of the local custom, leaves no power in either party to withdraw, because the presump- tion is, that the master knew not the custom, and the servant waived it. 37. The arles were usually considered to be a gratuity, but of late years they are viewed as a part of the wages to be paid under the contract, and in that light they are often deducted from the wages at the term of payment. This practice has been borrowed from the rule of reckoning the earnest money part of the price, in bargains of sale. Ersk. 3. 3. 5. 38. To accept of arles from two or more masters, under the mask of a free or disengaged servant, without any intention to enter either of their service, is fraud, which may be punished criminally. 39. Arles are not usually given to mechanics or to la- bourers. . 4. Duration of Verbal Contracts. 40. Verbal contracts subsist for a period not exceeding twelve months. Ersk. 3. 2. 1. ; 4. 2. 20. ; Tait, voce Servant. The year counts from the term-day, as in the case of rural servants, &c.; or from the day of entering the service, as in the case of clerks, &c. William v. Byrne, 2 N. and P. 139; Bell's Prin. s. 190. 41. A verbal engagement for two, three, or more years, is binding for one year only. Caddell, 3d June 1749, Mor. 12416; Blair, 298. But if the servant complete the first year, and enters upon the second, he must then serve that year. Pagans v. Mº Kie, 11th July 1837, Jurist. 42. In England, a verbal engagement is binding for any period, although exceeding twelve months, provided the ser- vant enters into the service. Where a verbal contract for a term of years was entered into in England, and the service agreed to be given in Scotland, the servant, after having en- tered to his work, was found not entitled to claim the benefit of the Scotch rule, that a verbal contract exists for one year only; but the engagement fell to be regulated by the law of the country where it was entered into. Dale, 5th Feb. 1829, 7 S. D. 369. VERBAL CONTRACT, HOW PROVED. 9 43. For the endurance of the contracts of the different classes of servants, see Chap. VI. ; and how these contracts are terminated and renewed, see Chap. VIII. 5. Verbal Contract, how proved. 44. The party averring a verbal contract must prove his averments by witnesses, or by the oath of his opponent, under an ordinary action. Forbes, 17th Nov. 1827, 6 S. D. 75. It is incompetent, where parties are at issue on the material parts of their contract, to determine such disputes under a summary application for desertion, because, until the contract be fixed down by a court of law, desertion cannot be determined. An- derson, 24th Jam. 1837, S. D. 45. Where parties direct the terms of the engagement to be written down by a third person, but do not sign it, and service given under it, such contract may be proved by wit- messes. Rea, v. Wrangle, 3 B and A. 326; 4 N. and M. 375. So held in England; but, in Scotland, it would only be good for one year. Caddell, 3d June 1749, Mor. 12416. 6. Refusal to enter Service. 46. Although a verbal engagement be completed by con- sent, yet if the servant refuses to enter into the service in terms of his bargain, he cannot be forced to do so by sum- mary procedure. The master has only a claim of damages for breach of the contract. The damage may be libelled at any amount, but the quantum is dependent entirely on cir- cumstances. If the amount be under £8, 6s. 8d. the servant cannot be imprisoned, by the 5 and 6 Will. IV. c. 70. ; and an arrestment only attaches that part of his wages not required for necessary use. This state of the law requires to be re- medied. It may be corrected in one of two ways, first, either by exempting decreets for breach of a contract of service from the operation of the 5 and 6 Will. IV. c. 70; or, second, by extending the provisions of the 4 Geo. IV., c. 34. So as to war- rant imprisonment, where the servant refuses to enter upon his engagement. 47. There are cases in which the damages would be re- duced to a very trifling sum; for example, where the servant 10 - - WRITTEN CONTRACTS. gives early notice of his intention not to enter the service, and the master in consequence provides himself with another; or, where the servant, by the death of her parent, is obliged to go home and superintend the young orphan family. - 48. No damages are due where the servant enlists; but if the enlistment be not made known to the master, and the ser- vant be discharged, either by purchase, or from unfitness to serve, before the period for entering on his engagement, da- mages will be due if he does not enter, because his freedom is then in no way abridged. CHAPTER IV. I. WRITTEN CONTRACTS. 49. In Scotland, when the engagement extends beyond twelve months, the contract, for its constitution and proof, must be reduced into the shape of a regular and solemn writ- ing, Blair, 299; and until this be done, either of the parties may withdraw from the engagement without being liable in damages. Ersk. 3. 2. 4; Paterson, 17th June, 1830, 8 S. D. 931. "- 50. The engagement may be completed by an exchange of holograph letters. But as they do not prove their dates, un- less attested by witnesses, it is necessary that each party in his letter state the date and place where it was subscribed by him, and thenames and designations of two male witnesses who saw him do so. These witnesses must also subscribe the letter, as evidence of the truth of the subscription, each adding “wit- ness” after his name. Tait on Evid. 94-95. To state, that the letter was subscribed by the party himself, in presence of two witnesses who do not attest it in that character, is not evidence of its date. 1593, c. 179; 1681, c. 5. If a party, in his letter, intentionally falsify the date and place of his sub- scription, or misrepresent the witnesses to his signature, he cannot plead these in bar of his engagement, for no man can profit by his own fraud. written contRActs. } { 51. If the parties engage under a regular written engage- ment, the contract ought to set forth,- 1st, The names and designations of the contracting parties, A. on the one part, and B. on the other part. 2d, That B. engages to serve A. for the period agreed on, in the particular duties, at a given rate of wages. 3d, That A. binds himself to give the work, and to pay the agreed-on wages weekly. 4th, Any other conditions may be inserted that are agreed on, such as hours of work and warning, &c. 5th, The person writing the contract, must state his name and designation; the date and place where the contract was signed by the parties; also the names and designations of the witnesses present at the subscriptions of the contracting parties. 1681, c. 5. If the contract be in part printed, the person who fills up the blanks in writing must be designed in the testing clause. Buchanan, Hopkirk and Co. v. Guthrie, 8th Dec. 1804; Ersk, b. 3, t. 2, § 4.6. 11. 12. 13. and 14. All interlineations, and marginal notes, must not only be sub- scribed by the parties, but they, along with erasures, must be noticed in the testing clause. Ersk. 3. 2. 20. If they are not, they cannot be read along with the contract. Mackersy, 7th March, 1829, 7 S. D. 556. - 52. The contract, before subscription, must be read over to the contracting parties, to prevent after challenge. Tait on Evidence, 60. 53. By the 55 Geo. III. c. 184, any memorandum or agree- ment for the hire of any labourer, artificer, manufacturer, or menial servant, is exempt from stamp duty. 54. Parties ignorant of the legal solemnities required to complete a contract, often write out their agreement by way of missive letters, neither holograph nor tested, which are called incomplete or improbative contracts, and therefore in- capable of being enforced. If the contract be not legally completed, before entering into the service, either party may resile with impunity. Finlayson, 22d Jan. 1828, 6 S. D. 419 ; Paterson, 17th June, 1830,8 S. D. 931. A writing holograph of one party and subscribed by two other parties, was not held to bind the latter, though the writing was in the plural 12 WRITTEN CONTRACTS. number, because it was neither subscribed nor tested accord- ing to law. Miller, 29th June 1835, 13 S. D. 839. And where a workman sent a tradesman an unsigned holograph offer of service for three years, from a future period, which was re- written by the tradesman with a few alterations, and sent back for signature along with a relative acceptance by himself; it was found, that although the new offer was signed by the workman, it was neither holograph nor tested, and he had the right to withdraw from it. The court suspended all proceed- ings to compel the workman to fulfil it by an action of dama- ges, for breach of contract. Paterson, ut supra: see also Caddell, 3d June 1749, Mor. 12.416; and Clerk, 19th Jan. 1799, Mor. 9. 186. In England an agreement in writing to the following effect, “I hereby agree to remain with Mrs. L. for 2 years, for the purpose of learning the business of a dress-maker,” was held not binding for want of a consider- ation, and sufficient mutuality. Lees v. Whitcomb, 5 Bing. 34. 55. Even if a party, before entering the service, were to admit his signature to an improbative contract, it would not render it valid, because it is a contract not recognised by law. Grieve, 22d May 1790, Mor. 8459. 56. An improbative contract can neither be proved by witnesses nor by oath of party. Caddell, ut supra. 57. A verbal acceptance of a written offer of engagement for a period exceeding twelve months, may be resiled from, because the contract is incomplete until there be a written acceptance. Ersk. 3. 2. 2; Stair, 1. 10. 3. and 9.; Lees v. Whitcomb, ut supra. 58. Rei interventus is the occurrence of some circum- stance on the faith of the bargain, such as the performance of an act in implement of it, or the non-performance of an act which, but for the bargain, one or other of the parties would have performed; whereby matters do not remain entire, and as they were before the bargain was made; in consequence of which, the law hold that neither party is entitled to resile. To give rei interventus these effects, it must be known to the party against whom it is pleaded, and must have been per- mitted by him, as flowing from the contract. Rei inter- CONTRACTS WITH COMPANIES. 13 ventus may be proved by witnesses. M'Lean, 1st July 1834, 12 S. D. 865; Hamilton, 22d June 1836, 14 S. D. 323. 59. Although an improbative contract is, in the absence of rei interventus, not binding, yet its character and legal effects are changed, where the servant enters upon his en- gagement, for he, by his homologation, supplies the defect, and renders the writing a valid contract. Blair, 299; 4 Geo. IV. c. 34. An indenture, although it wanted the proper name of the writer and witnesses, was held good, the apprentice hav- ing entered upon the service, and continued for 3 years. Rym- er, 19th July 1781. The like was held where the contract was not tested, and had been entered into by a minor with a company, of which only one partner ultimately remained. Campbell, 13th February 1827, 5 S. D. 335. And in the case of Dick v. Napier, 21st November 1805, unrep. the workman bound himself by an improbative writing to an iron founder for a period of five years; and in contemplation of entering into the service, several alterations were made at the work- man's desire, for his personal comfort; which were held to form rei interventus, and to have completed the contract. Blair, 299. 2. Contracts with Companies. 60. A contract of service with a company continues good notwithstanding the death or retirement of a partner, if the bu- siness be continued, as before, without interruption, and the servant continue to draw the wages, and derive the other be- nefits stipulated by his engagement. Pagan v. Mº Kie, 11th June 1837 ; 10 Jurist, 90. In Campbell v. Baird, 13th Feb. 1827, 5 S. D. 335, the workman bound himself for two years to H. and R. Baird; of which firm one of the partners retired; the servant then challenged the contract, and pleaded that, as the company was dissolved, it was not lawful for the remaining partner to carry on business, as if the company were still in existence; and that, as the contract was made with the company, which in fact had no existence, it was therefore null and void. The Court were of opinion, that as no fraud had been alleged or deception practised on the servant by the partner carrying on the business after the retirement of 14 WIRITTEN CONTRACTS. the other partner, the contract of service was valid; that there were numerous companies in existence trading under a firm originally assumed, where none of the partners were alive; and that there were many others which carried on a business under ageneraldesignation, such as the Carron Company, where the partners were daily fluctuating, but it had never been sup- posed that the contracts made by them were on that account null and void; and Lord Gillies remarked, that on this point he could not discover even a ratio dubitando. In the two cases above cited, the business was carried on, without abridg- ment or interruption, and therefore the workman sustain- ed no loss. But had the companies changed their business, for example, from that of a bookbinder to that of a book- seller, or ironfounders to that of brassfounders, their contracts of hire would have fallen, because the labour agreed to be given was not required. 3. Conditions in the Contract. 61. Parties are at liberty to make any conditions they think proper, provided they be not contrary to law ; and they will receive effect, notwithstanding the custom of the place where the parties fulfil their engagement. Blair, 299. 62. A servant previous to beginning business on his own account, may solicit the patronage and support of his master's customers when his engagement is at an end, and has begun to trade on his own account. Nicol v. Martyn, 3 Esp. 732. If any loss is to be apprehended by the master from such an attempt, their contract should specially prohibit such solicita- tions under a penalty; or, prohibit and limit the servant, af- ter leaving, from carrying on business nearer than a certain distance from the place of employment; but the latter prohibi- tion must not constitute too general a restraint of trade. 5 Ch. Burns, 565. In agreements of this description, however, the law requires two qualifications; 1st, that they be founded on a good and valuable consideration; and, 2d, that the restraintin point of law be reasonable: see 21st vol. 306. Eng. Law. Mag. for a view of the law of contracts operating in restraint of trade. 63. Voluntary restraints of trading by agreement, ºf gene- CONDITIONS IN THE CONTRACT. 15 ral, are held in law to be bad. Where a servant agreed not to practise his master's business, after leaving the service, within a hundred miles of York, the Court held that it was a restraint far larger than was necessary for the protection of the master, who could not by possibility occupy the space be- neficially himself; and found that no action lay on the con- tract. Horner, 7 Bing. 735; Mitchell, 1 P. Williams, 181; 1 Bell’s Illust. 65. * 64. Particular restraints of trading, if reasonable, and agreed to, on due consideration, are held to be good. Where a per- son hired himself as a clerk and traveller to the plantiff for a certain time, agreeing not to work, or be employed, by any other person during that time without the plantiff’s consentin writing ; and, on a second indenture or contract, not to solicit or take orders in certains terms specified within a certain time, under a penalty of £50 for every order which should be so taken, an action for the breach of the indenture was brought, and defended on the ground that the restraint was for 14 years, and therefore void. The Chief Justice deliv- ered judgment for the plaintiff, on the ground, “that although the law will not permit any one to restrain a person from do- ing what the public welfare and his own interest require, that he should do ; and so, any deed by which a person binds him- self not to employ his talents, his industry, or his capital, in any useful undertaking in the kingdom, would be void, because no good reason can be imagined for any person imposing such a restraint on himself; yet where individual interest and general convenience render engagements not to carry on trade or to enter a profession in a particular place proper, the agreement is legal. What amounts to an adequate considera- tion is to be decided by courts of justice.” Homer v. Ash- Jord, 3 Bing. 322. In Scotland it was found not to be against natural equity for an apprentice to contract with his master or with his partners, not to set up in business in the same town, after leaving the trade. Stalker v. Carmichael, 15th Jan. 1735; Elch. Dec. voce Apprentice. See Curtis v. Sandison, 29th Nov. 1831; 4 Deas' Rep. 357. The same has been found in England, in the case of apprentices. 16 WRITTEN CONTRACTS. 4. Interpretation of Contracts. 65. The terms of a contract of service must always be go- verned by the law of the country in which it was entered into, although service be given under it in Scotland. Dale, 5th Feb. 1829; 7 S. D. 369. See 43. 66. The principal writing into which an agreement is ul- timately rendered, is not subject to interpretation from other and previous writings, Pentland, 12th Nov. 1830, 4 Sh. App. Cas. 322; Florence, 14th Feb. 1832, 10 S. D. B. 326., because it is the true and final exposition of the intentions of parties, and supersedes all previous correspondence or negotiations, which are preliminary. If the intentions of parties are not to be collected from it, but from other evidence, the security of written contracts would, in a manner, be destroyed. M*A.’s Ersk. 3. 2. 4. 67. But the above rule admits of this exception, that where any thing has been stated by way of inducement or misrepre- sentation, in the previous communings or correspondence of parties, and by fraud or collusion the truth has been con- cealed, evidence of this may be admitted; for no man can pro- fit by his own fraud. 1 Bell’s Com. 434. See 18. 68. The rules for the interpretating of agreements are, 1st, To examine what was the common intention of the contracting parties, rather than the grammatical sense of the terms of the contract. For example, you rent from me a small apartment in a house, the remainder of which is occu- pied by myself. I make you a new lease in these terms, “I let A. B. my house for so many years, at the same rent which is mentioned in the former lease.” Will you be allowed to insist that I have let you the whole house P No,-for al- though the terms my house, in their grammatical sense, signify the whole house, and not a mere apartment, it is manifest that our intention was only to renew the lease of the apart- ment held under me, and that intention ought homestly to pre- vail over the terms of the lease. 1 Pothier, 53. \ 2d, When a clause in a contract is capable of two significa- tions, it should be understood in that sense which will admit of some operation, rather than that which will admit of none. INTERPRETATION OF CONTRACTS. 17 Ib. 54. And it must be understood in the sense most agreeable to the nature of the contract. Ib. 55. For example, I let you a farm for mine years, at £50. These terms, £50, are not to be understood as one single sum, but a yearly rent. It would be otherwise, if £50 was the value of nine years' rent ; the farm only letting at £5, 11s. annually. - . 3d, The terms of a contract ambiguously expressed, may be explained by the common use of those terms in the country where it is made. Ib. 56. If it arises from the use of tech- nicalities, or words known in particular trades to have a pe- culiar signification, the contract must be interpreted accord- ing to such meaning; but such meaning must be notorious, otherwise the popular sense will be preferred. Anderson, 2 Bos. and P. 164. 4th, However general the terms may be in which an agree- ment is conceived, it only comprises those things which ap- pear that the contracting parties proposed to contract, and not others which they never thought of Ib. 59. Nor those that have been provided for. Scott, 11th Decem. 1827. For example, I engage and serve as a clerk in the counting-room; but, in consequence of pressure of business, I also engage to serve out of the room. It cannot be supposed that I am to act as an out-door porter or carter, or act under an appren- tice-boy. 5th, Usage of trade is of so much authority, that a contract is understood to contain the customary clauses, although they be not expressed. For example, in a lease of a house, though the terms for paying the rent be not expressed, they are un- derstood. Ib. 56. Indeed, matters not provided for by the contract, or an implied agreement, may be proved by usage. Bower v. Jones, 5 Deas' Rep. 51–268; Inglis v. Cunning- ham, 14th June 1826, 4 Mur. Rep. ; Hutton v. Pedie, 22d Feb. 1830, 5 Mur. Rep. 157. In proving the usage of trade by witnesses, as applicable to a particular case, the general usage should first be proved, then its application to the ques- tion at issue. Sheriff v. Stein's Assignees, 14th March 1828, 4 Mur. Rep. 466. 6th, Agreements, although ungrammatically expressed, should be interpreted according to the plain, ordinary and po- B i8 WRITTEN CONTRACTS. pular sense of the words used by the parties, unless it appears from the bargain that a different and peculiar meaning was intended. Where a word of a fléxible meaning is used in a doubtful sense, in one part of a deed, but has occurred in an antecedent part of it, where the meaning is clear, it will be interpreted as having the same lucid meaning in both places. Dick, 14th Jan. 1812, Fae. Coll. Where the contract is writ- ten by a person in the lowest ranks of life, without assistance, the words ought to be understood in their vulgar sense. Ersk. 3. 3.87; Stair, 4.42. 21. - 69. A judge cannot modify a contract of service, by adopt- ing a suggestion made by one of the parties, under it, to which the other does not accede. Anderson, 24th Jam. 1837, S. D. 5. Subscription of Contracts. 70. The contract must be subscribed by the master and servant before two male witnesses, above the age of fourteen years. It is not necessary that the contract be subscribed by the witnesses at one and the same time. Robertson, 1st Dec. 1823, 2 S. D. 544. But one witness cannot sign for another. Stewart, June 1799, Mor. 16906. Nor can any one sign for a witness, although the latter should touch the pen of the writer. Setton, 24th Feb. 1816, 1 Mur. Rep. 9. Nor can a blind person be a witness. Cunningham, 2d July 1824, 3 S. D. 205. 71. Although the witness be not present at the time, the contracting party adhibits his signature; yet he will be a good witness, if such party acknowledge the subscription to be his true signature. 72. If either of the contracting parties be incapacitated from signing his name, by bodily infirmity, or otherwise, the contract may be signed for him, by two notaries, in presence of four witnesses; and in cases of small value, fixed at f8, 6s. 8d. (£100 Scots) by one notary and two witnesses. 73. Subscription by initials seems sufficient, if it be the party's usual mode of signing. Signature by a cross or mark is very questionable, as it does not bear the least resemblance to any letter in the subscriber's name. Ersk. 3. 2. 8. ; Tait on Evidence, 128. In two instances, it was sustained on a DUPLICATES OF MUTUAL CONTRACTS. I9 proof that it was truly adhibited ; Cockburn, 8th Dec. 1815; Kennedy, 25th May 1816; but these cases related to bills, and not to contracts of service. - 74. To lead the party's hand, or to trace the letters of his name, upon the paper with a pencil, or a pen, or the like; or to set a subscription before him, upon a slip of paper, which he is to copy or draw from, though perhaps not necessarily and of themselves fatal to the validity of the deed, are at least very unfavourable circumstances. Tait on Evid. 66. and 67. 75. A third person cannot subscribe the name of the con- tracting party, although requested by him to do so; nor write his name, although he should hold the point of the pen, in presence of the witnesses, during the act of subscription. 76. The active partner of a company can subscribe the company's firm. Buchanan, 29th May 1835, 13 S. D. 841. 77. Where a blind person contracts, the agreement before subscription should be read over in presence of the witnesses called to see it completed, as an additional evidence that no advantage was taken of his bodily infirmity. Fife, 17th July 1823, 1 S. D. 498, and Sh. App. Cas. ; Ross, 3d July 1792, Mor. 16853. If the party cannot sign his name, he must sub- scribe by notaries. Tait on Evid. 60. 61. 6. Duplicates of Mutual Contracts. 78. With regard to duplicates and counterparts of mutual contracts, where two or more duplicates of a mutual contract are executed, the parties are bound, if one of the duplicates be regularly executed, although the others be not. Thus a mutual contract was found to be binding, although the name of the writer was omitted in two of three duplicates, it being re- gularly inserted in the third. Cubbison, 3d July 1716, Mor. voce Writ, section 9. 79. If there be two counterparts of a contract, each need only sign one, containing the obligations upon him; Smith, 17th June 1710, Mor. ibid.; but it appears that each party must have signed a regularly executed deed, as it has long been an established rule, that in mutual contracts both parties 20 - WRITTEN CONTRACTS. must be bound, otherwise neither is bound. Tait on Evid. 99. 100. - 80. Mutual obligations or contracts signed by two, three, or more parties, for their different interests, are fully effectual without delivery, because every such deed, assoon as executed, becomes a common right to all the contractors. Ibid. 152. 7. Duration of a Written Contract. 8I. Whether a written contract to serve, either all the days and years of the servant's life-time, or during the joint lives of himself and his master, be valid, has been doubted. It would seem, however, that an engagement for life does not consti- tute a state of slavery ; and therefore it is not illegal, although it be highly improvident. A servant who bound himself to serve during his life-time, violated the contract. In an action for wages, the endurance of the engagement came to be con- sidered. An argument was ordered on the special point, but it did not take place, as the master and not the servant wished to be free of the engagement. Fairie v. M. Picar, July 1775, noticed in 2 Hutch. 161–168. In England, such a contract seems also not illegal; but very slight damages would be al- lowed to the master for the violation of so inconsiderate a bar- gain. 1 Christian's Blacks. 424, note 3; Chitty, jun. On Contracts, 458 ; Ersk. 1. 7. 62. In the case of M*Kenzie v. Diaon, 1st March 1805, 2 Hutch. 161–172, an engagement for eighteen years was not thought illegal. 82. If a contract of some year's endurance be permitted to terminate without previous notice on either side, the contract is held to subsist for one year longer, and to be renewed yearly, so long as parties are mutually pleased. See Chap. VIII. 8. Refusal to enter Service under a Written Contract. 83. Servants engaged in any of the trades enumerated in the 4 Geo. IV. c. 34, or 10 Geo. IV. c. 52, may be imprisoned by a Justice of the Peace, if they fail to enter their service, provided there be a written contract duly signed by the con- tracting parties. - 84. But superior artists in any of the trades referred to in SERVICES OF RELATIONS. 21 these acts, who decline to fulfil their engagements, are only liable in damages. Frame v. Campbell, 6th June 1836, S. D. . 85. Servants not within the statute, are liable in damages for breach of contract, like every other person who fail to im- plement their bargains. Tait, voce Servant. CHAPTER V. SERVICES OF RELATIONS, &c. 1. Children. 86. Children dependent on their father for support, are ob- liged while they continue in his family, or are maintained by him at bed and board, to give their services for the common in- terest of the family. The produce of their labour and indus- try belong exclusively to the parent. The parental obliga- tion to give support endures till the children can support themselves, and leave the family with the parent's consent. In the lowest ranks of life, the parental obligation ceases so Soon as the child is able to gain its own bread. Stair, 1. 5. sec. 6.8. 13; Ersk 1. 6. sec. 53 to 56; Wallace’s Prin. 287. 87. The word “support” includes board, bed, clothing, medicines and medical attendance during sickness, and all other necessaries. - 88. The father's power over his child is his lawful right of guardianship. He acts as his child's tutor, till the age of pu- berty; thereafter as curator till the child arrives at majority, or twenty-one years of age, when the parent's power of ad- ministration ceases. It is not in the father's power, were he so inclined, to resign his curatorial powers. In that cha- racter, it is necessary he should ratify all the minor's deeds, in order to give them validity. Without the parent's consent, the minor is not entitled to leave his family, or to engage as a servant or an apprentice. It was found that the father's con- sent was absolutely necessary to bind a young lad of nineteen years of age as an apprentice. Low v. Henry, 14th Nov. 17 97, wnrep. Hume's Lec. It is not meant that his formal consent be given; but if he knew of the deed, and allowed it to proceed, 22 SERVICES OF RE LATIONS. he will be held by such ratification or homologation to have consented. Tait, voce Servant ; Ersk. I. 6. 53.54. 89. It was held at one time, that the parent, even after the children's majority, could compel them to live in his family, and contribute their labour towards his service. Stair, 1.5. 13. But it is the more general opinion, and better founded in ma- ture, that the compelling power of a father over his issue, lasts only till they arrive at perfect age; and that they are, from that period, their own masters in every respect, and continue no longer obliged to him, but by the bonds of duty, affection, and gratitude ; which no length of time, nor station of life, ought to dissolve or even slacken. Ersk. I. 6.55. 90. But if a son, after attaining majority, should be unable to support himself, and should continue in his father's family, the parent is entitled to the profits arising from the son's in- dustry. 1 Br. Stair, 48 ; Ersk. 1. 6.55. 91. If the son be married, and continue to live with his fa- ther, then the profits belong to the son, in so far as they ex- ceed a reasonable board. l Br. Stair, 48. 92. Although he be not married, yet if the profits arising from his industry be sufficient for his subsistence, the parental obligation ceases; and the excess, if any, belongs to himself. Ersk. l. 6, 53. If he be under age, and live separate from his parents with their consent, he is entitled to the profits of his industry. 1 Br. Stair, 48. - 93. But he is not entitled to the profits, though he should live separate from the parents, if he earns not his own liveli- hood by his own labour, independent of any aid from the pa- rent. Ersk. I. 6. 55. 94. Children are not entitled to demand from the parent hire for the services which they may have performed, or may perform, unless they make an antecedent stipulation for it. For they may well allow the profits of their bodily labour to go to their parents, for the expense 6f the maintenance. Wal- bace’s Prim. 287. 95. A parent who forced his daughters out of his house ...to act as Servants, when he was in a situation to maintain them, was ordained to pay a competent aliment to each, though they were at the time in service. Cairns v. Bellamore, July 1687, I LLE G 1'TIM ATE CHI L ID Ił EN . 23 Mor. 410. In the case of daughters, the following rules are laid down: 1st, Where they are of rank, or have been brought up so as not to be able to earn their own livelihood, their right of aliment subsists till their marriage. 2d, Where the family is not of rank or great opulence, till majority or mar- riage, whichever event should first happen. And 3d, In the lowest ranks of life, the right of aliment terminates so soon as the child can earn her own bread by service. M Gla. on Aliment, chap, 7. 2. Illegitimate Children. 96. The father of an illegitimate child, legally speaking, is not its guardian or administrator in law. He is not even en- titled to the custody of the child, where the mother insists on her right to keep it; from the presumption that she will take better care of the child's interest than any other person. But circumstances sometimes occur in the situation and charac- ter of the mother which disqualify her from retaining the child. In such cases, the custody is given to a neutral party. The father's powers being thus limited, he cannot, as in the case of lawful children, compel his illegitimate child to live in fa- mily with him, and force the child to communicate the profits of its labour. But Prof. (late Baron) Hume, in his lectures, in giving that as his opinion of the law, at the same time says, that the point has never been tried, and perhaps he ought not to have so confidently asserted it. It very maturally occurs, however, that as the child cannot succeed to the father dying intestate, it would be hard to take the whole profits of its in- dustry, which would in effect increase the property for the heir or executor. . 97. If the child be supported and live in family with the father, it must submit to parental authority. 3. Children Adopted. 98. Although adopted children be entertained in family by the adopter with every mark of respect and attention, yet if both parties be not nearly related, they are entitled as strang- ers to claim the value of their services. In such a case, the entertainment by the adopter is held to be a donation. 24 SERVICES OF RELATIONS. 4. Orphans. 99. Where orphan boys and girls, of tender years, are re- ceived into the families of their more wealthy relations, their services go in extinction of board and clothing. But in the case of men and women of twenty years of age, if it be shewn that their services enabled the family to dispense with a ser- vant, wages are due, for the party so serving could have earned wages and board in another family. Dictum of Prof. Hume. See Smellie's Cases, 23d Nov. 1833, 25th Feb. 1835, and 17th Nov. 1835; and Bishop v. Chisholm, 16th June 1820. Fac. Coll. 5. Brothers and Sisters. 100. Where no wages were stipulated in the case of a bro- ther and sister, both major, it was held, that the one did ser- vice on account of the relationship, and for his entertainment; the other entertained him from relationship and usefulness to her. Rig v. Rig, 6th June 1676, Mor. 11426. 101. It is a common occurrence for one sister to engage another, at fixed wages, to act as her domestic servant; but where there is no paction for remuneration, and wages sought, then the mature of the services performed by the one, and the entertainment given by the other, are questions of evidence, to exclude the rule fixed in the case of Rig v. Rig, wt Supra. 102. Wages were not allowed to a sister-in-law, who had for some years employed herself for the interest of her de- ceased sister's family, on the ground that she had a fortune of her own, and had, along with her maid-servant, lived in the family from her youth, till she was upwards of forty years of age. Spence, 16th Feb. 1681, Mor. 11437. 103. But where a sister-in-law, in indigent circumstances, undertook, without paction for wages, to superintend her own sisters' families, while at school, and for whom a house was suitably provided, free of rent, and all household expenses paid for her, it was held that she was entitled to wages for her services, because she could have earned the like wages NIECES. 25 by service to another. Smellie v. Miller, 17th Nov. 1835; Smellie v. Cochran, 25th Feb. 1835. 104. An aunt, who kept her nephew's house, claimed, on his getting married, wages as his housekeeper for the time she had resided with him. He pleaded, that he entertained her as a relation ; shewed her obedience and respect; had vo- luntarily settled an annuity of twenty pounds on her, since his mother's death, which took place some years before; and which annuity the aunt had regularly drawn. Sheriff Hus- band held these circumstances sufficient to exclude the claim of wages. (1831, Perth Court.) 6. Nieces. 105. A niece sued her uncle for the wages of her services, rendered to him prior to her marriage. He at first pleaded, that she being his niece, was not a servant, but gratuitously kept at bed and board, from Whitsunday 1803 to Martinmas 1805, the period of her pretended service. It was, however, ultimately admitted by him, that he had kept a servant be- fore his niece went to reside with him; that he kept no ser- vant during the time she resided there; and that he got home a servant the day she left the house; but he did not allege payment of the wages. The Justices found the uncle liable. Bishop v. Chisholm, 16th June 1820. Fac. Coll. See also Smellie's Cases, ut supra. 106. Dresses or trinkets given by an uncle or aunt to a niece while in their service, are presumed to be free gifts flowing from the relationship, because the only deduction that can be allowed from wages are the value of necessaries which the servant cannot avoid. Hedgly v. Holt, 4 C. and P. 104. Sheriff Barclay held that dresses furnished by an uncle to his niece, who acted as his housekeeper, could not be held as part payment of her claim of wages, against his represen- tatives,—the dresses being beyond the niece's station in life. ( M. Donald, 1837, Perth Court.) 107. A legacy by an uncle deceased to a niece serving in his family at the time of his death, does not weaken her claim for wages against his representatives; because the for- mer is a gift presumed to be founded on love and affection; 26 PERIODS OF SERVICE. the latter is a just and lawful debt due by the deceased, for services performed. 7. Relations generally. 108. Loose services are often rendered to old and infirm persons by relations without any solicitation ; but if it be prov- ed that the services were given in expectation of a legacy, or of a share of the person's succession, and without stipulation for wages, they are presumed to have been given gratuitous- ly; for which services no action can be sustained. Keith v. Mill, 4th Feb. 1812, unrep., Hume's Lec. 8. Service by Friends. 109. Where the labour given is more in the character of a trustee under family settlements, than as a factor or agent, no wages are due. Boyes v. Warren, 6th March, 1822; Sh. App. Cases. CHAPTER WI. PERIODS OF SERVICE. 1. Domestic Servants. 110. Household or domestic servants may be engaged either by the Scotch or by the English rules of hiring, which differ as to endurance. Bell's Prin. $ 174, Silvie, 3d July 1830 ; 8 S. D. 1010. 111. By the Scotch practice, domestic servants, generally speaking, are held to be engaged for six months, from either of the terms of Whitsunday or Martinmas, although the wages be stated to the servant, at the time of engaging, at a certain rate per-annum, because this is the ordinary style of agreement, and, according to practice, not evidence of an engagement for a longer period. Bell's Prin. § 174; Tait, voce Servant. If the engagement be made “between terms,” for example, in the month of February, it will continue till the succeeding term of Whitsunday; but if the servant enters R J R AL SERVANTS. 27 to his or her place within forty days of a term, it will be binding to the second term, and thereafter, half-yearly, until either of the parties give the requisite warning. 112. By the English practice, which is called a month's warning, or a month's wages, the servant is engaged for no definite or fixed period, but parties agree to separate on either of them giving a month's notice, or, in place of the warning, on the party who wishes the separation paying or giving up a month's wages. Bell's Prin. $ 174; Silvie, 3d July 1830; 8 S. D. 1010. By this mode of hiring, the master or mistress can get rid of an unprofitable or disagree- able servant, and the servant of an unpleasant master or mis- tress, on very short notice, or by payment of a small sum. 2. Rural Servants. 113. The engagements of rural servants exist for twelve- months, work or no work. Bell's Prin. $ 174; Finlayson, 6th June 1829; 7 S. D. 717. There is this peculiarity in their engagements, that the term for entering and leaving their service is often regulated by local custom. In many places it is by the old terms of Whitsunday and Martinmas. The difference between the old and new terms is eleven days, settled by the Acts 1690, c. 39; 1693, c. 24; and 24 Geo. II. c. 23 ; Tait, voce Servant. In England, servants in husban- dry are hired by the year from Michaelmas. 2 Starkie, 257. 114. Where farm-servants entered at the old term of Mar- tinmas, and left their employer at the new term of Martinmas in the succeeding year, contrary to the local usage of the dis- trict, it was found to be desertion, which did not entitle them to their wages. (Sheriff. Courts of Edinburgh and Dun- plane, 1837–38.) 115. A gardener is held to be a yearly servant, because his duty can only be completed with the round of the year. Blair, 300; Shedden v. Moffat, 8th Feb. 1839. In England, where a gardener resided on his master's property, and en- joyed a salary of £100, with power to take apprentices, and who had taken two apprentices at £15 per annum, it was held that he was a domestic servant, and entitled only to the usual 28 PERIODS OF SERVICE. warning. Nowlan v. Ablett, 2 C. M. and R. 54; 4 Bing. 309; 5 B. and Ad. 789–904. 3. Artizans, Handicraftsmen, &c. 116. When artizans, &c. are engaged verbally, without re- ference to duration, the contract is presumed to exist, until either party give previous notice that the engagement is to cease. A hiring, at 6s. per week for the winter, and 9s. per week for the summer, is not a yearly hiring. 6 B. and C. 77. 117. A journeyman engaged by the piece, cannot quit his service until the work contracted for be finished. 5 Ch. Burns' J. P. 4. Labourers. 118. It is in general held, that if a labourer be hired at a certain rate per day, it is an engagement by the day; at so much per week, an engagement by the week; and by the month, an agreement by the month. Shedden v. Moffat, 8th Feb. 1839. 5. Clerks, Shop or Warehousemen. 119. A general hiring of a clerk, in the absence of any cus- tom to rebut the presumption in law, is to be presumed a yearly engagement. Huttman, 2 Car. and Pay. 510; Beeston v. Collyer, 4 Bäng. 309; 1 Bell's Illust. 125. So is the general hiring of a shopman, unless otherwise arranged. Turner v. Robinson, 5 B. and Ad. 789. And where the engagement of a warehouseman was at £12, 10s. per month for the first year, and to advance £10 per annum until the salary was #180, held to be only a yearly contract. Fawcet v. Cash, 5 B. and Ad. 904; 2 Hutch. 161. 120. Such engagements count from the day fixed by the parties, and continues so from year to year, so long as they are respectively pleased. Williams v. Byrne, 2 N. and P. 139; 4 Bing. 309; 5 B. and Ad. 904. 121. But if a person so engaged shall fall ill,—recover,- and not return to his employer, and his employer not inquire after him or ask for his return, then it will be held no evidence HOUR'S OF WORK. 29 - * of a hiring for a year, but he will be entitled to the value of the service given. Bayley v. Rimmell, 1 M. and W. 506. 6. Skilled Labour. 122. The endurance of such contracts is regulated by agreement, or by the usage of the profession, as the hiring of clerks and managers. Bell's Prin. $ 152, et seq. wº-rººmsº CHAPTER VII. HOUR'S OF WORK. 123. Hours are never mentioned in hiring a domestic or household servant. Such servants are engaged by the year, half- year, or month, without reference to hours. They must be ready at all times to do what may be reasonably required of them in the family, and are at no time exempt from attendance without leave. They cannot however, be made to work beyond their strength. Blair, 306. ; Rea, v. St. John Devizes, 9 B. and C. 900. 124. Farm and other rural servants, must work during the usual hours recognized in the district in which they serve. But where there is a necessity for working beyond these hours, the additional labour cannot be refused, nor can the servant question the propriety of the master's order. Blair, wt supra. 125. A farm-servant who had specially stipulated to work only ten hours a-day during his engagement, refused to work beyond that time, on an occasion of emergency, and was dis- missed. Sheriff Barclay, while he reprobated such conduct in the servant, when the master's request was urgent, from the state of the weather; yet, as the service was under a special contract, he allowed full wages and board. (Perth Court, 1837.) 126. Where a contract of hiring stipulates, that the servant shall obey all the rules and regulations of the manufactory, with regard to hours of attendance and of work, as well as the mode and other particulars of working,-such rules and 30 FI OU RS OF WOR. K. regulations form part of the contract. In an English case regarding a settlement, where the contract was of this nature, but entered into before the rules of the factory had been framed, it was contended that the hiring was thereby eacceptive. Jus- tice Bayley said, “By the agreement the servant stipulates to obey all the rules of the factory with regard to the hours of attendance. In every contract of hiring, the law will imply that the party hired shall work at all reasonable hours when re- quired. Generally speaking, the ordinary working hours in a manufactory are twelve hours per day: but it does not there- fore follow, that the master may not, on extraordinary occa- sions, require his servants to work at other hours; and whe- ther he does so or not, the relation of master and servant con- tinues during the whole day. It does not appear by this case what the specific rules and regulations were as to hours of work. But assuming that one of them was that the ser- vant was to work twelve hours per day; yet, inasmuch as the regulation might be, and were, from time to time, altered by the master, the stipulation that the servant should obey the rules and regulations of the factory with regard to hours of work, did not give the servant any right to say that the master should not require his services at all rea- sonable hours. Such a stipulation does not necessarily imply that she is not to work beyond certain hours. The true meaning of this agreement is, that the relation of master and servant was to continue the whole day. There is no express exception in the contract, and no remission of service, but such as the law will imply in every contract of hiring.” J. Littledale and Park concurred. Rea, v. St. John Devizes, 9 B. and C., 900. See 148. 127. In mercantile pursuits, the hours of business are ge- nerally regulated by local usage, or by agreement; each town and each profession having its own hour for closing the duties of the day. 128. With tradesmen the hours of labour are regulated by their trade or calling. By the act 6 Geo. IV. c. 129, power is given both to workmen and masters to fix their own hours of labour; but when any number of either class have settled among themselves to work, or to give work for a fixed num- HO URS OF WORK. - - 31 ber of hours per day or week, it is purely a private matter, in so far as they themselves are concerned, which cannot af- fect any one else: but to compel or attempt to compel others to enter into their arrangement, is a statutory offence, punish- able by imprisonment or transportation. 129. No tradesman, artificer, workman, labourer, or other person, is allowed to exercise any worldly labour, business, or work of their ordinary callings upon the Lord's day, or any part thereof; works of necessity and charity only are excepted. 1597, c. 70.; 1690, c. 21. s. 8. ; Phillips v. Innes, 20th Feb. 1837; Sh. App. Cas. ; 1 Hume on Crimes, 573. But there are exceptions, as in the cases of apothecaries, Sunday tra- velling, undertakers, &c. admitted on the ground, that they may frequently be requisite for purposes of necessity and mercy, and that it would be impracticable to investigate cases of occasional abuse. Phillips, ut supra. On the ground of necessity, there are various other classes who may fall within the above exception. Watchmen, for the preservation of peace and order, or for the protection of property. Farm servants must attend on Sunday by rotation, for watering and feeding their horses. They cannot refuse on that day to remain at home, and lead in corn from ground in immediate danger of being inundated by a river, or where the corn is in the course of being lost by a storm or inclement weather. Domestic ser- vants must give service on Sunday by rotation, and where there is only one servant in the family, service every alternate Sun- day; but this is generally made the subject of arrangement. 130. The word “Holidays,” in agreements of service, means fast and Saint days, not Sundays. Phillips, ut supra. 131. Servants are not allowed to leave their employ on days of amusement and festivity, without permission, first asked and obtained. Two farm-servants left their master's employ late on the Saturday-night, to hold their “Auld hansel Munday,” and on their return early on Tuesday morning, were refused to be taken back. They claimed wages, but from having gone away without permission, the wages were declared forfeited. (Fife Sh. Court, January, 1839.) 32 How contRACTS OF SERVICE ARE TERMINATED, &c. CHAPTER VIII. HOW CONTRACTS OF SERVICE ARE TERMINATED AND RENEWED, 132. The contracts of rural servants terminate at twelve o'clock moon of the term day; of household servants on the same day, when their work is “ red up ; ” of workmen, on the Saturday night; and of clerks &c. on the close of the business of the day on which their engagement cease. When either remain beyond the period, they are presumed to serve voluntarily, and are answerable for misconduct. This applies where warning has been given. 133. Warning is always given to a servant under the con- tract, so as to afford him time to “ look about.” It can only be dispensed with by special agreement, or by local usage, if it be uniform and notorious. Bell's Prin. s. 147. 1. Warning to Domestic Servants. 134. Warning signifies proper previous notice, by either party, that their engagement is to cease at the expiry of the period for which it was entered into. This is requisite in or- der that both parties may act thereafter as they see proper. If no warning be given, parties are held to have renewed their contract, which is called tacit relocation. Tait, voce Servant ; 2 Hutch. 161. 135. When tacit relocation takes place, both parties are formally bound, in terms of their previous bargain, the same as if they had entered into a new agreement, similar in every way. Either party refusing to continue the engagement, may be compelled to fulfil his part of it; and if that has become im- possible, to pay damages. 2 Hutch. 161 ; Baird v. Don, 14th July 1779, Mor. 9182; M. Lean v. Fife, 4th Feb. 1813; Finlayson, 6th June 1829, 7 S. D. 717. 136. Where a domestic servant gives warning that he is to leave at the term, the master must allow him a reasonable in- dulgence to make inquiries after another place; but if this indulgence be abused, it may form a ground for dismissal. A refusal to allow the servant to go and make inquiries, ren- WARNING TO DOMESTIC SERVANTS, 33 ders the master liable in damages, if thereby the servant be unable to procure another situation. (M*Gregor, 1st Oct. 1836, Perth Court.) A cook was allowed half-year's wages and board, who was refused liberty to inquire after another place. (Edinburgh Court.) The indulgence to be expected is during the hours least inconvenient to the master's family; but to deny the servant indulgence on the ground of finical or trifling inconveniences, is a masked refusal to give the servant a fair chance of finding another situation. - 137. With regard to the evidence of warning having been given, it is not necessary, says Mr. Tait, “ that there should be witnesses to it; for a man does not usually call witnesses when he parts with his servant : nor may it always be advis- able to refer the fact to the other party's oath. It will be suf- ficient, if it can be reasonably proved, from facts and circum- stances, that they did part; as, if it can be proved, in the case of the servant insisting on staying after due warning, that he has been offering himself for other places at the proper time as disengaged, or that he was aware at that time of others of fering themselves for his place as vacant; or, if it can be proved, in the case of the master insisting on retaining the ser– vant after due warning, (which can hardly happen,) that he was in the knowledge, at the proper time, of the servant of fering himself as disengaged for other situations, or that he endeavoured, at the proper time, to find others to fill his place as vacant. The whole circumstances, however, must be such as necessarily infer that the parties understood their agree- ment to be at an end ; for the servant's mere inquiry after other situations, for example, may have occurred from an un- certainty only whether the master would retain him, or from his not having made up his own mind whether he would re- main. Tait, voce Servant ; M*Lean v. Fife, 4th Feb. 1813; Blair, 307-8. 138. In an action of damages by a servant against a mas- ter who had not given due warning, it was found to be in- competent to ask a witness, whether a person who made an application to him for a servant, and to whom the pursuer had been recommended, afterwards informed him that the C 34 How contRACTS OF SERVICE ARE TERMINATED, &c. situation had been filled up. Anderson, 13th July 1818, 1 Mur. Rep. 434. - 139. When a servant occupies a free house on the mas- ter's property, intimation that he must leave the house at the term may not always be construed as dispensing with his labour after that term. To prevent all misappre- hension, the servant must be told, “I dispense with your labour after such a term, and I then also require possession of the house occupied by you under me.” See 164. 2. Period of Notice to Domestic Servants. I40. The warning given to and by household servants, un- der the Scotch mode of hiring, is forty days preceding the new or legal terms of Whitsunday or Martinmas, although they be engaged by the old terms, for this reason, that the old and new term servants, when leaving, should have a fair and equal chance of getting another place. 2 Hutch. 161 ; Tait, voce Servant. 141. Under the English mode of hiring, the warning is one month's notice, or payment of one month's wages. Robinson v. Hindman, 3 Esp. 235; Silvie, 3d July 1830, 8 S. D. 1010. It has been decided in England, that the mere caus- ing a servant to be sent to jail, upon a charge of theft, made by her mistress, and subsequently abandoned, is not a dissolution of the contract of hiring. Smith v. Kings- ford, 3 Scott, 279. In that case, the servant entered her service on the 19th November, and, on the 15th January, she entertained, till one o'clock in the morning, unknown to her mistress, three persons in the kitchen, where several silver spoons were lying. Several of the spoons were next day amissing: the servant was then apprehended on suspi- cion, and remanded for examination, till the 20th, when the charge was dismissed. The mistress then offered two months' wages; but the Court held, that the servant was entitled to three months' wages,—one day of the third month having run before notice. It thus appears, that al- though a false and groundless charge against a servant does not terminate the contract of hire, yet, the servant has a claim of reparation, if her character be thereby injured. #, OCAL USAGE. 35 3. Local Usage. i42. It is said, that in some parts of Scotland, in the case of rural servants, and of domestic servants in the country, that parties separate at the termination of their engagements with- out giving warning, unless a new agreement be made to the contrary, and that this usage bars the plea of tacit relocation. Tait, voce Servant. But local usage is not to be depended upon, unless it be proved to have been uniform and notorious. Morison v. Fife, 27th June 1823, 2 S. D. 434; Baird, 14th July 1779. Where local custom is averred, the evidence of its uniformity must be clear, distinct, and without impedi- ment; but, if the other party proves deviations from that us- age, the plea of the averrer falls. Morison and Baird, ut su- pra ; Inglis v. Cunningham, 14th June 1826, 4 Mur. Rep. 73. In the cases of Baird and Morison, the Court found that warm- ing ought to have been given to the servant notwithstanding of the alleged practice to the contrary; which seems just, be- cause servants in the country are moving about from district to district, term after term, to whom local customs can only become partially known; and hence the necessity of giving notice, and of strictly interpretating the plea and proof of lo- cal usage. A proprietor in Perthshire dismissed his ser- vant at the term without warning, and averred local usage for so doing; but, on a proof of witnesses in different districts, it was found, that the custom was neither uniform nor notori- ous; and the servant obtained a year's wages and board. (Bryson, Oct. 1833, Perth Court.) 143. In some parts of Scotland, markets are held for the hiring or feeing of rural servants; and where the master means to part with his servant at the term, warning should be given previous to the holding of the market, that the latter may at- tend, and procure another master for the succeeding term. 144. It is a common notion that all servants have a right to leave off work and attend these markets; but Sheriff Bar- clay held, that it is only servants who are warned away, and not servants who are engaged for the succeeding year, that are privileged to go and attend without leave from the master. (M. Gregor, Perth Court, Oct. 1837.) - 36 How contRACTs of SERVICE ARE TERMINATED, &c. 4. Usage of Trade. 145. Trades, generally speaking, have fixed a certain time, when either party may give notice of his intention to termi- nate the engagement, that both parties may “ look about.” The periods of warning are not the same in all trades, and it is impossible to enumerate them. Tait, voce Servant. 146. The contract of every workman, however, is under- stood to contain an obligation on both parties, although not expressed, to give the warming prescribed by the usage of the trade. 1 Pothier, 56. et seq. Accordingly, a workman who left his service without giving fourteen days’ previous notice, agree- ably to the rules of the trade, which was established by proof to be the rule, was ordained to find caution to return to his work, and serve out these number of days. Jack, 11th March 1837, Jurist. And the same was found where four weeks' notice was required. Reid v. Raeburn, 4th June 1824. 147. Where the service is given to a company, or to parties carrying on a joint concern, all parties must consent, or at least a majority of them, to warning the servants. It was held in England, that one of two partners had a right to authorize a joint weekly servant to remain in the house, though the other partner had regularly given him a week's notice to leave the service. Donaldson v. Williams, 1 C. and M. 345. The power to give warning or to dismiss servants, may be delegated by the company to any one of the partners, or to any of their superior servants. 148. In large manufactories, the rules and regulations to be observed by the workmen, often specify the warning required to be given by either master or servant. They are generally printed, and posted up in a conspicuous part of the building, for the information of all concerned, and regulates that part of the contract, notwithstanding of the usage of trade. Ander- son, 24th January 1837. See 126. But if there be a spe- cial agreement, such printed notice will not control it. Mat- thew v. Glasgow Iron Company, 28th Nov. 1836, 1 Swint. Rep. 393. CLERKS AND SHOP ASSISTANTS. 37 5. Clerks and Shop Assistants. 149. Where there is neither practice nor agreement to re- gulate the time when notice should be given, as in the case of clerks, parties must consider the peculiar nature of their busi- ness, and the difficulties attendant on procuring another ser– vant or situation. In the case of a clerk to an army-agent in London, dismissed on a month's notice, whose salary was paid monthly, Chief Justice Best, in an action brought for the - year's salary, although it had not expired, said, “I take the law to be this : If a servant is hired generally, he is consi- dered as hired for a year, that both master and servant may have the benefit of all the seasons. In the case of household servants, it is the custom to give one month's notice; but I know of no practice or usage, nor is there evidence of any given, applying to the case of servants of the description of the plaintiff. A man in this class is not likely to be able to get a situation so soon as a butler or a footman can. As to the monthly payments, though the hiring was for a year, yet payments may be made at more frequent intervals. If it had been proved that the plaintiff betrayed the secrets of his em- ployer, or was guilty of other misconduct, that would justify his dismissal, without any notice at all.” The whole year's salary was allowed. Beeston v. Collyer, 2 Car. and Pay. A whole year's salary and board was allowed to a tutor, who was dismissed at the end of the first quarter. Sheddan v. Moffat, 8th Feb. 1839. In Prof. Hume's Lectures, two unreported cases are given, where the servants were abruptly dismissed: A clerk in a post-office was allowed six months' salary, from the presumption that he could not sooner find another situation. Jackson v. Aitchison, 15th Jan. 1790. And a shipmaster was, on the same principle, allowed ten months’ salary and board. Innes v. Brand, 1st June 1796; Tait, voce Servant. - 150. But, in the case of Sheddan, ut supra, Lord Mac- kenzie, according to the report in the Jurist, observed, in the case of a tutor hired for the year, “ that there was no need for notice where the engagement was definite ;” that is, for a time certain. But to obviate all disputes, parties ought in- wariably to stipulate within what time warming must be given, 38 How CoNTRACTS OF SERVICE ARE TERMINATED, &c. the one to the other; because, where there is no such stipula- tion, the servant, under an impression that the master will not require his services, may place himself in a situation to induce the master to believe that he means to leave, and conse- quently that he must engage another servant. 151. If a clerk leaves his situation without previous no- tice, wages are not due. Huttman v. Boulnois, 2 C. and P. 510. In such a case, if wages be asked, the master has a cross action for breach of contract. 152. A clerk hired generally by the year, at a certain sa- lary, may, upon a dissolution of the contract, by mutual con- sent, within the year, recover salary, pro rata, without any express agreement. Thomas v. Williams, 3 N. and M., # Ad. and Eltis, 685. 153. The departure of a clerk upon the ceasing of the mas- ter’s trade, is evidence of a dissolution of their contract. Ibident. 6. Agreement. 154. By special agreement, warning may be dispensed with, and parties left to dismiss or leave on a moment's no- tice, which may be freely exercised without assigning a cause. Pollock, I2th July 1829, 3 Sh. App. Cases, 430; Mitchell, 26th Jan. 1836, 4 S. D. 155. Payment of wages by the master, and acceptance by the servant, during the contract, presumes a dissolution of it. Rea: v. Whittlebury, 6 T. R. 465. And where the servant is . boarded in family with the master, an agreement to leave his or her place on payment of wages, means wages only, not board. Cooper, 5th March 1826. •' i56. A bond by a servant to quit his service at a specified term, under a stipulated penalty, may be enforced, if he insists on remaining after the term has arrived. Stewart v. Wiel- Hand, 20th Dec. 1671 ; I Br. Supp. 645. In that case, the servant had taken advantage of the weakness of his mistress, and having had sole trust, realized a fortune to himself, which made it necessary to take a bond for a 1000 merks, in favour of her son, for the sake of herself and her family. A suspen- sion of the bond was brought, on the ground, that it was un- Hawful, and against the liberty and freedom of his mistress, to BANKRUPTCY—DEATH. 39 employ her own servants, or his freedom to continue in her service; but the Court sustained the bond, and ordained him to leave the service. 157. A written yearly agreement, which stated the employ- ment, and the remuneration, is not a writing of the highest order, requiring writing to dissolve it, or even an express de- claration that it is dissolved; for this may be done by facts and circumstances; but the proof necessary to dissolve a writ- ten contract must be clear and perspicuous. Craig, 4th March 1823; 3 Mur. Rep. 325. - 7. Bankruptcy—Death. 158. Contracts of service terminate by the bankruptcy of the master, excepting in the cases of rural and domestic ser- wants, whose claim for the current wages are, notwithstanding, preferable on his estate. Tait, voce Servant; 2 Bell's Com. 157. 159. The death of the master does not terminate the cur- rent engagement of a rural servant. Finlayson, 6th June 1829; 7 S. D. 717. But with household servants it is dif- ferent, though the engagement be for a whole year or longer period. If the death takes place during the currency of the first half-year, and more than 40 days of the succeeding term, the servant, having sufficient time to look out for another place, is acting in bad faith if he does not do so, and will not be entitled to more than the first half-year's wages and board. 2 Hutch. 166; Punchin, 17th Nov. 1790. Questions of this nature depend on the principle that regulate cases of undue dismis- sal by the master himself. Blair, 302. CHAPTER IX. SERVANTs REMOVAL FROM FREE POSSESSIONS. 160. There are servants, such as overseers, game-keepers, farm-servants, &c. who have a free house and piece of ground allowed them, as part of their wages. The possession in such cases depends on the agreement of parties, but it may be 40 SERVANTS’ REMOVAL FROM FREE possESSIONs. abridged by the death or misconduct of the servant. If the contract be improperly terminated by the master, the servant has then a claim of damages. See 163. A servant occupy- ing a cottage from his master, with less wages on that account, is held in England to be the possession of the master. Bertie v. Beaumont, 16 East, 33.; 2 Taunton, 339. 161. If the servant die, or be dismissed for misconduct, then the right to possess legally ceases; but, in such cases, the master will not be suffered to eject instantly, without giv- ing reasonable time to look out for another place of abode. Ersk. 2.4.49. ; I Ch. Blacks. 427. A farm servant, under a yearly engagement, dismissed for misconduct, was summarily ejected from the house possessed by him on his master's farm. He brought a suspension of the decree, and found caution both for violent profits and for wrongfully suspending. Lord Jef. ..frey passed the bill, but stated in a note, that he had a strong impression that the letters would be found orderly proceeded. The servant thereafter abandoned the case. Kay v. Paton, 2d Sept. 1836. unrep. (Bill Chamber.) 162. Where there is garden ground under crop attached to the house at the time the servant is improperly dismissed, the value must be allowed, or permission granted to sell or take away the crop. If the master do not permit this, then the servant may apply for the warrant of the Judge-ordinary to do so. If the servant be dismissed for misconduct, and in- sist on having the crop which is not mature, then the servant must pay rent for the ground, otherwise he would profit by his own wrong. But suppose a factor to farm 50 or 60 acres of ground under his master, as part of his remuneration, which he puts under crop, and is thereafter dismissed, summary re- moving, it is thought, would not be competent, because the extent of acrage, and the nature of the crops, fixes one year's possession to be necessary and certain, notwithstanding the precarious title of possession. After dismissal, tacit reloca- tion cannot take place. See 164. If the dismissal be justifiable, rent must be paid for the ground, because misconduct can reap no reward. - 163. Damages to the extent of £250 were awarded by a Jury to a yearly servant, who was forced to leave his house by un- INTEREST IN THE CONTRACT OF SERVICE. 41 lawful proceedings. The mistress caused the doors of the house to be barricaded during night, and the house to be unroofed. These proceedings were alleged, though not proved, to have been accompanied by other acts of violence; but it appeared that another house suitable for the servant had not then been provided. The mistress maintained, that as the house was her own property, and as the servant refused to leave it, he was to be considered in the situation of a person who forced his way into it. Lord Gillies held, that “the servant's title was a personal contract, by which he was to have a suitable house, garden, &c. If the master refused to implement the contract, the servant must have brought his action ; but the master did implement it, and the servant being put in posses- sion, his right was completed, and was as effectual as by any lease. But he was bound to remove ; not, however, at the will of the master, but of the law.” Scougall v. Lady Mary Crawford, 13th March 1829, 2 Mur. Rep. 110. 164. Where the master warns his servant, that at the en- suing term their engagement is to end, there is no room for presuming that he can possess his house for another year. In a case of a verbal tack for one year, Lord Glenlee observed, that tacit relocation arises from there being, in the nature of the bargain, ground to expect that it may be continued; and that it does not apply where, from the bargain, there can be no such expectation. Forsyth, 22d Nov. 1827; 6 S. D. 101. See 139. CHAPTER X. INTEREST IN THE CONTRACT OF SERVICE. 165. A master, by the contract of hiring, and his obligation to pay wages to the servant, acquires, during its currency, a legal right to the services undertaken to be performed, of which no one can wrongfully deprive him. I Ch. Blacks., 429. 166. From the nature of the property which the master thus acquires, an action will lie against the servant, if he departs before his agreement be expired; and also against any one 42 INTHE REST IN THE CONTRACTH OF SERVICE . who seduces him to leave the employment, or, knowing his previous agreement, hires him. Rutherford, 19th March 1836; Dickson, 1st Nov. 1816; 1 Mur. Rep. 141 ; 5 Ch. Burns, J. P. ; M' Gregor, 31st May 1825. Or, detains an apprentice, after knowing him to be such. Rea, v. Edwards, 7 T. R. 745. 167. An action will also lie against a servant who advises his fellow-servant, under contract, to leave his master, or as- sists him in doing so. Turner v. Robinson, 5 B. and Ad. 789. 168. Also against any man for beating or maiming his ser- vant; but, in such a case, the master must assign as a special reason for his so doing, his own damage by the loss of the ser- vice ; and this loss must be proved. I Ch. Black, 429. 169. The new master cannot compel the services, in a question with the first master, during the currency of his con- tract with the servant. Mº Gregor, 31st May 1825. But no action will lie against the new master, if he was ignorant of the agreement, unless he refuses to restore the servant upon information and demand, 1 Ch. Black., 429 ; nor against the new master, who hires a servant who has deserted, where the second engagement is known for a considerable time to the first master, but no demand during that time is made by him for the services, because his silence is a presumed acquies- cence in the departure. Robinson v. Smith, 19th June 1800, Hume's Dec. 20, 21. 170. In an action against A. for seducing the servant of B. from his service, it was held sufficient evidence of the en- ticement, that A. asked the servant to enlist in the army, in the full knowledge that he was a servant under indenture for five years, gave him money, and afterwards caused him to be carried off to the regiment, which then lay in an adjoin- ing county. Keane v. Boycott, 2 H. Blacks., 511. The case occurred with an officer, whose conduct was viewed by the Court as exceeding discretion; but the statutory law is so ex- tended as not now to be applicable to any party engaged in the recruiting service: but neutral persons who seduce, under the mask of enlistment, to do hurt to the master, are liable. 17 l. A party could not demand the services of a little girl, called “the tumbling lassie,” whom he had bought from her INTIMIATION BEFORE ACTION . 43 mother for £30 Scots, in order to dance upon his stage, be- cause the purchase from her parent was an illegal transaction, and gave the buyer no right to demand service under it. Reid v. Scott, 13th Jan. 1697, Mor. 9495. 172. If a clerk be hired in general terms, fall ill,—recov- er,-and do not return to his duties, and his employer do not inquire after him, or ask for the completion of the engagement, then it will not be held a yearly engagement. In such a case the master will not be entitled to claim the clerk’s services, on his entering into an engagement with another. Bayley v. Ičimmell, 1 M. and W. 506. 173. Where a master sues another, for the seduction of his servant from his contract, the defendant cannot avail himself of any legal objection to the form or conditions of the contract of hiring. 7 T. R. 310; 1 Anst. 250; I Ch. Black. 430. The servant, alone, can plead the objection. In Keane v. Boycott, the enticer pleaded that the servant's contract was null and void, being made with an infant and a slave; but the Court refused to give effect to it. They held, that the effect of such a contract might be the manumission of the slave, and consequently it was for his own benefit; and being for his own benefit, that it was, at most, only voidable by the infant himself. 2 H. Black. 51 l. 174. No action lies for inducing a servant to leave his mas- ter at the expiration of the engagement, although the ser- vant had no intention at the time of doing so, because his la- bour thereafter is at his own disposal. Nicol v. Martyn, 2 Esp. 734. * 175. The several statutes relative to seducing artificers to emigrate and settle in foreign countries, have been repealed by 5 Geo. IV. c. 97. 2. Intimation before Action. 176. Where the master intends to raise an action for entic- ing away, or retaining, or employing his servant, it is advisa- ble to give notice to the defendant that he is the servant of the pursuer, and in virtue of the contract, to demand his ser– vices. Under the action this formal notice must be proved; al- So that the contract, at the date of such notice, was current and 44 INTEREST IN THE CONTRACT OF SERVICE. had not expired, and that its existence was known to the de- fendant before the notice. If it was not known before intima- tion, subsequent employment by the defendant entitles the pur- suer to recover damages. Tomlin's Law Dict. 3. Damages. 177. The extent of the damage due to the master for with- drawing his servant, will not be confined to the loss suffered, at the time, by taking him away, but will extend to the loss sustained by leaving the master, at a critical period, and by being deprived of the services. Gunter v. Aster, 4 Moore, 12. ; 1 Stark, 287. ; 5 M and S. 198. Damages to the ex- tent of £25 were given against a party, who retained a collier in his service, after he knew that the collier was under an en- gagement to another master. Dickson, 1st Nov. 1816; 1 Mur. Rep. 141. In the case of a journeyman engaged by the piece, but not for any definite period, and who left his ser- vice before the work was finished, the enticer was found lia- ble in damages; for, said Lord Mansfield, “every man is en- titled to an action who has sustained damage by wrong.” 5 Ch. Burns, J. P. 178. That juries, in awarding compensation to a master, may not be misled, it is held to be incompetent to state to them what damages were awarded in previous actions of a si- milar mature, but it is competent to give them a general state- ment of the facts of each case. Rutherford, 19th March 1836. 179. The damages are often fixed and constituted by an express stipulation between the parties, in relation to which the following points are to be observed: 1st, That parties may, by stipulation, fix the amount of damage resulting, or likely to result, from the breach of the engagement, as the li- quidated or estimated loss;–in which case, no inquiry into the real amount of damage seems competent. 2d, That the obligation may be forfeited by a penalty, which is held to cover, but not to assess the damage; to entitle the Jury to modify under it the true amount of damage, but not to ex- ceed the penalty. And, 3d, That the stipulation of a penalty, unless when expressly so declared, is not held to discharge DAMAGES. 45 the obligation, on payment of the penalty. Bell's Prin. $ 34. ; 1 Bell's Illus. 42. et seq. 180. When the obligation may be forfeited by a penalty, the master by taking the penalty discharges the contract, and liberates the servant from its conditions. In an action for se- ducing a workman, Lord Mansfield held, that as the master had accepted of the penalty, the contract, and all right which he had under it, were discharged. By law there were two remedies to the party injured : 1st, As often as the conditions were broken, to sue for relief by an action for breach of con- tract, as for absence of a servant, a proportional satisfaction in damages; or, 2d, To insist for the penalty by way of pun- ishment, beyond the value of the injury, and excusable sa- tisfaction. Bird v. Randal, 1762, cited in I Bell's Illus. 45. 181. It is a proper ground of dismissal, if a servant advise or induce his master's apprentice to run away and go abroad; or assist the latter in the prosecution of an intention to run away. Where a yearly servant did so, he was dismissed and not found entitled even for salary pro rata, although the mas- ter had previously recovered damages of him for the same act of misconduct. Turner v. Robinson, 5 B and Ad. 789. 182. By the 6 Geo. IV. c. 129, § 3, if any person shall, either by violence to the person or property, or by threat and intimidation, or by molesting, or in any way obstructing ano- ther, force any journeyman manufacturer, workman, or other person hired in any manufacture, trade, or business, to desert his engagement, or return his work unfinished, or prevent him from hiring or accepting work, &c., shall be liable to imprison- ment for a period not exceeding three calendar months, if com- plained of within six months after the commission thereof, to any one or more Justices of the Peace. . 183. Although that statute provides a speedy and summary mode of prosecution for offences against industrious workmen, without the intervention of a Jury, yet it does not take away the ordinary cognizance which the common law takes of such offences, or hinder them from being stated as aggravations of an ordinary assault. Cases have occurred, both before and after the statute, in which the intent of interfering with the employment of free labour has been sustained as a most se- 46 REVEALING SECRETS OF MASTER’s BUSINESS, rious aggravation of assault, and punished with transportation. 1 Alison, 188, et seq. CHAPTER XI. REVEALING SECRETS OF MASTER’S BUSINESS—INVENTIONS BY SERVANTS IN MACHINERY, &c. 184. An action of damages will lie against a party who se- duces a servant to reveal any part of the secrets of his mas- ter's business, if the information obtained be attended with loss or injury to the employer. Kerr, 28th July 1822, 3 Mur. Rep. 122; Beeston v. Collyer, 2 Car. and Pay. 185. The master, in sueing for damages, must specify in his pleadings the nature of the secret obtained, otherwise he is not entitled to an issue that the party got unlawful possession of such secret. Rutherford, 19th March 1836, 14 S. D. 732. 186. The servant revealing his master's secrets in trade may be instantly dismissed. Beeston v. Collyer, ut supra. 187. It is a criminal act in a servant to open lockfast places to get hold of his master's receipts for making preparations connected with his trade or craft, in order to copy them. In one case, where the proprietors of a printfield company were possessed of a secret for mixing and preparing colours, which was kept in a lockfast room, a servant, desirous to get posses- sion of the receipt, broke open the room, and carried off the receipt, copied it, and afterwards replaced it where he had found it. The Justiciary Court, after a debate on the rele- vancy of the indictment against the servant for this act, did not consider it a case of proper theft,-the paper having been fraudulently abstracted with a view merely to copy and return it ; but they held it an irregular and punishable act, and in- flicted imprisonment and banishment from the county. 1 Ali- son, 271. A workman at a printfield near Perth, broke into a room where a book containing valuable receipts for mixing dyes was kept, and carried the book off, in order to copy them. He was instantly thereafter seized with the property in his possession, and before use could be made of it. He was INVENTIONS BY SERVANTS IN MACHINERY, &e. 47 charged with theft, aggravated by housebreaking, and received fourteen year's transportation. (Perth Circuit, 1837.) 188. If a servant makes an invention, or a discovery, in any branch of mechanics, &c. by himself, such invention be- comes his own and not the master's property. Hill v. Thom- son, 8 Taunt. 395 ; Goodson on Patents, 52, and Supplement, p. 3. 189. It is not an invention in the servant, or in the master, if the invention be taken from a scientific book; or, if they have in any other manner been informed of it. Goodson, ut Supra. 190. In the case of Bloa'am and another v. Elsie, 18th Jan. 1825, 1 Car. and Pay. 558, an important qualification has been made in reference to a servant, which establishes the rule, that if a master employ a skilful person for the express pur- pose of assisting him in completing the mechanical contrivan- ces, the additions made by that person will belong to his em- ployer, who may include them in the specification to his pa- tent as a part of his own invention. In the above case, the patent was objected to on the ground, that parts of the im- provement in the machine were the servant's invention, who proved that when he made the improvements he was employed as an engineer for the purpose of bringing the machine to per- fection, and was paid for so doing, and that he was acting as the servant of the inventor of the machine, for the purpose of suggesting those improvements. As he did not discover the principle of the machine, nor invent the important movements of it, the patent was not disturbed. Goodson, ut supra. 191. Inventors have been thus described by a writer in the London Journal of Arts and Sciences for 1831 : “ Useful in- ventors are of three classes: “ The first are men of genius, capable of producing impor- tant inventions, that involve the entire projecting of new machines, or remodelling of existing ones, and the organiz- ation of new or complicated processes and systems of work- ing. These are very few. “The second are men who have not so extensive a scope of imagination and intellect as to project new systems, or great changes, and to organize the means of effecting them, but who 48 REVEALING SECRETS OF MASTER’s BUSINESS, &c. are capable of making marked improvements upon existing systems and machinery, or partial changes in them. This class is considerable. “The third class is made up of men of small imagination, who are not capable of any great originality of thought, but who have a certain ingenuity which they can apply to the things that come within the range of their observations, and possess a tact for correctly and accurately executing that which they conceive. Their province is to improve in detail, to give a finish to the detached parts of the extensive combin- ations formed by superior minds, and to fill up the chasms that occur frequently in the plans of the greatest inventors. Hap- pily this class is immense, being spread thickly over the whole body of mechanics, from the manufacturer and engineer down to the lowest workman. Such men constitute expert mecha- nicians, who are never at a loss for expedients for overcoming the practical difficulties in detail that occur in their business, and are perpetually making trifling inventions, which they re- quire for immediate application.” 192. It will not be a ground for dismissing a servant, that he reveals an invention that his master has newly produced, be- cause the first publisher of the invention is held in law to be “the true and first inventor.” This rule is necessary to en- sure an early production of the efforts of genius. Goodson, 54. But to reveal the gradual progress of the invention is a breach of confidentiality affecting the material interests of the inventor, which cannot be justified. Such conduct admits of copiests, and affects genius, which every free nation is anx– ious to foster and protect. - 193. Persons exporting or smuggling out of the kingdom any tools or utensils used in the woollen, cotton, linen, or silk manufactories; or used in the printing of calicoes, &c.; or used in the iron or steel manufactories of Great Britain, are liable in certain penalties; and the captain of any vessel knowingly admitting such tools or utensils to be exported in his vessel, is also liable in £100 of a penalty. See 23 Geo. II. c. 13; 14 Geo. III. c. 71 ; 22 Geo. III. c. 60; and 25 Geo. III. c. 67. D OMESTIC SERVANT$. 49 CHAPTER XII. OBLIGATIONS ON MASTERs. 1. Domestic Servants. 194. Where servants are hired to go to the country, the mas- ter must convey them to their place of service free of expense; but, unless it be otherwise stipulated, they must defray the expense of returning home. Baird v. Don, 16th Jan. 1779, Mor. 9182; Br. Supp. Hailes, 839. 195. The master must receive the servant at the term or time fixed on, otherwise he will be liable in damages for breach of contract. Bell's Prin. s. 183; Tait, voce Servant. The damages, at the very least, must be equivalent to the wages and board. The amount is not payable in slump, but by in- stalments, until the servant gets another situation. Tait, ut supra. See 217. 219. 242. Stuart, 19th June 1806; Hume's Dec. 390. -- 196. The master will be liable in like manner, if he does not allow the servant, after entering to his place, to continue in it for the stipulated period, unless there be good ground for dismissing him. Tait, voce Servant. Or, where the master, in order to defeat the engagement, procures the servant to be imprisoned for payment of a debt. Wight, 25th July 1828, 4 Mur. Rep. 590. Or, where the master refuses to give the servant due sustenance, if part of the contract. Bankton, 1. 2. 55; 2 Hutch. 171. 197. The servant must be permitted to perform all the du- ties that fairly fall within the line of his engagement: he căn- not be called on to perform the duties of a situation for which he did not contract. Bell's Prin. s. 177. In regard to the distinctions to be observed, Mr. Blair says, p. 304, “ 1. That no servant can be called on to perform, even temporarily, the duties belonging to another situation, if they be such as involve danger from want of skill. As an example, in Edinburgh, servants are not bound to stand on the outside of high win- dows to clean them. 2. Or, habitually any work at variance with their prospect of practice and improvement in their own D 5() OBLIGATIONS ON MAS'I'E IRS. province; for instance, a lady's maid cannot be made to ex- change places with a dairy maid. 3. It seems, also, just that upper servants should be entitled to exemption from services beneath their station in the household. A housekeeper can- not be compelled to act as a scullion, or a butler as a stable- boy.” In support of these views, it has been decided, that a housekeeper was entitled to her wages and board, although not dismissed, but had voluntarily left her service, as she was deprived of the keys, and not allowed longer to act in that ca. pacity. Gunn, 3d June 1801, Hume's Dec. 384. It was held, that a chambermaid in an inn was not bound to carry in coals laid down in the public street. (Perth Court, 1836.) Nor an overseer to a colliery to assist at the windlass-wheel, or to click coals at the pit. Fairie, July 1775, 2 Hutch. 166. Nor was a gardener bound to weed a turnip field, when order- ed by an overseer. Douglas v. Thomson, 11th June 1807, Hume's Dec. 392. But the latter case is peculiar; and it is questioned if the decision would be repeated. Every case of this kind, however, must be dependent on its own circum- stances. An under gardener, with not enough of employ- ment in the garden, might feasibly be required by the mas- ter to assist in weeding a field. 198. In families where one domestic is employed, the law does not entitle such servant to make nice distinctions as to the work to be performed. The servant is hired not to do a par- ticular piece of work, but all the work in the household; her contract is general, and she must therefore render herself generally useful. If she were to enter upon any other foot- ing, families would be subject to continual broil and inconve- nience. But even in her case, there are limits: for example, she is not obliged to attend and work in her master's shop; or, to assist in performing the duties of another family, at the de- sire of the master. Tait, voce Servant. 199. The engagement of farm servants is also general, and obliges them to do all the agricultural work of the farm. As their labours necessarily vary with the weather and the sea- sons, the master has the power of dividing and regulating the work. He can direct the horses to be wrought by any servant he chooses; he is not obliged to assign his reason for the di- I) O M ESTIC SERVANTS. 51 visions of the labour, or for the preference given for the per- formance of it, though it may appear to be arbitrary to the servants. (Aberdeen Court, 1837.) 200. To prevent disorder and irregularity, the master is bound to maintain a certain degree of authority in his family; but in the exercise of that duty, he must deport himself to- wards his servants with kindness, propriety, and moderation. He will not be justified in pursuing an overbearing conduct; or, in ordering or counter-ordering, to weary out the servant's patience; or, in commanding obedience in an insulting and contemptuous manner. The servant is entitled to have his orders and instructions calmly stated, and the master to have them strictly obeyed. 201. It is a common motion, that a master or mistress may moderately chastise a young servant, for negligence or for misconduct. The doctrine of Mr. Erskine, 1.7.62. that they have the power, is now exploded. The master is not entitled, even where the servant is very young, to use personal, or even threaten personal violence. Keith v. Archer, 24th Nov. 1836, Jurist; Smart v. Gairns, 18th Dec. 1794, Hume's Dec. 18. The master ought rather, if the case requires strong measures, to dismiss the servant; trusting for his defence, in any action which may be brought against him, to the propriety and ne- cessity of the measure. Tait, 351. ; Blair, 301. 202. A servant of mature years, to whom bodily chastise- ment was threatened, although the threat was never seriously meant to be put into execution, was found justified in leaving his service. Wilks v. Roseberry, 15th Nov. 1792, unrep. ; Hume's Lec. 203. Where a servant is really driven from his master's house by violence, he will be entitled, unless he gave great provocation, to full wages and board, also to a claim for repa- ration; Keith v. Archer, 24th Nov. 1836, Jurist ; but if there be blame attaching to both parties, it will be a good ground for restricting the servant's claim. Tait, voce Servant. 204. A master cannot compel his servant to work beyond his strength. Carson or Casson, 1st July 1794, unrep. ; Hume's Lec. 205. Neither can he compel the servant to reside out of the 52 OBLIGATIONS ON MASTERS. family without cause shewn; the engagement, especially of a female, being on the faith of the protection of the master's house. Bell’s Prin. s. 184, Graham, 12th Feb. 1822, 1 S. D. 343. Fac. Coll. 206. A master has the power of dismissing a servant for dishonesty, immoral conduct, wilful disobedience, habitual ne- glect of duty, drunkenness, insolence, absence during night without leave, wilfully absenting himself at a time when he knew he would be wanted. Robinson v. Hindman, 3 Esp. 235 ; Callo, 4 C. and P. 518; Elder, 9th March 1802, Hume's Dec. 392. He may dismiss where the servant ab- sents himself for five days without leave, although the latter may allege to have been engaged on the master's business. Crawford, 13th March 1822, 1 Sh. App. Cas. 124. Or, where the servant absents herself on Sunday, although “her Sunday out,” in the face of positive orders to remain at home. Hamilton, 9th Dec. 1824, 3 S. D. 379. 207. With regard to whatis a sufficient unlawful absenting,- it is not every little occasional absence that will constitute a breach of the contract,-though they may be the subject of very just reprehension. Accordingly it has been found, that a servant absenting himself half-an-hour beyond the proper time on Sunday, is not such an absence as will justify a mas- ter to dismiss for it. There may be that difference in clocks; or, it may occur in the church service. Wright v. Gihon, 3 Car. and Pay. 583. 208. A servant's entertaining relations or acquaintances with bed and board, at the master's expense, without his know- ledge or consent; and an improvident and profligate waste of family provisions by a female servant, have been held proper grounds of dismissal. (Perth Court.) See Elder, 9th March 1802, Hume's Dec. 386. 209. In exercising the power of dismissing, the master must review the past conduct of the servant. If it has been uni- formly correct, he will not be justified in turning away for the first offence, unless it be of a serious nature; the law seems rather to be, that he is obliged to warn and admonish the ser– vant. Elder, ut supra. The master cannot legally dismiss for a slight fault. Bell's Prin. s. 183. DOMESTIC SERVANTs. 53 210. If a servant be guilty of misconduct in June, and the master retain him till November, a condonation or pardon is presumed. Ridgway, 3 4d. and Ellis, 174. 211. But if the offence which immediately precedes the dis- missal be a continuation of misconduct, persisted in after repeated indulgence and remonstrance, the dismissal will be justified. Elder, ut supra. Where a servant had been guilty of nine different acts of misconduct, which had been pardoned or overlooked, the Court viewed them in connection with the of fence for which the servant was dismissed. See the printed pleadings in Hamilton v. Maclean, 9th Dec. 1824. 212. A master is not bound to state, at the time, to the servant the cause of misconduct, as the reason of dismissal. If a sufficient cause of dismissal exist, he has a right to act upon it. Lord Denman held, that a master who has dismiss- ed a servant, may justify the dismissal by shewing that at the time of the dismissal he knew the servant to have committed an act which justified it : and a Jury ought not to be asked whether the master was induced to dismiss the servant by that act, or by some other cause. Ridgway v. Hungerford Mar- ket Co. 3 Ad. and Ellis, 177. 213. It is a vulgar notion, that a servant, by offering him- Self back before witnesses, after dismissal for misconduct, has a claim against the master if he still refuse to accept the ser- vice. This is, however, an error. A cold formal offer to re- turn to his service, cannot atone for his previous delict, nor draw sympathy for his unfortunate position. Such an offer, however, is considered by many persons to be important, as drawing out not only the admission, but the grounds of the dismissal, before people specially brought by the party, and consequently subject to strong bias. But the master is not bound to state the grounds of dismissal to any person; he is, however, bound to state them in Court, if called on by the servant. Ridgway, ut supra. 214. Whenever the case is brought before a Court, the master must state, by way of defence, the reasons of dismis- sal, which are then narrowly canvassed. But neither party can be permitted to indulge in exposures not pertinent to the points of conduct in dispute. Among the cases that come 54 O B LIGATIONS ON MASTERS. before courts, there are none so unfavourable to the master, as where he expresses himself in language so equivocal, as to leave the servant to act under the belief that he is dismissed, and then to averin defence, that there was no dismissal but desertion. 215. If the servant be dismissed on proper grounds, no wages are due. From mistaken sympathy, however, wages are often awarded by Justices to the servant, up to the date of the delict, which is in effect allowing him to benefit by his own delinquency, and leaves the relation of master and servant to be violated with impunity: such decisions, however, are not in accordance with law. 216. It is maintained by many, that where the dismissal is on the eve of the expiry of the term, it would be hard to for- feit the whole wages earned ; and that it would be an induce- ment to masters to bring about a timely quarrel to get free of the claim of wages. But each party knows the penalty of vi- olating the contract. If the master seek the quarrel, he can- not profit by his own wrong; nor can the servant profit by his misconduct. See 262. for Spain v. Arnott. In one case, where the servant's wages were twenty pounds, and where he was dismissed shortly before the term, for getting intoxicated and gross neglect of duty, Sheriff Barclay held the dismissal justi- fiable, but, he held a forfeiture of all the wages too great a punishment for the offence, no loss having arisen, and ordain- ed the servant to lose one half of the wages earned, as a pen- alty for his misconduct. This view was affirmed on appeal by Sheriff Anderson. (Perth Court, 1839.) 217. Where the dismissal cannot be justified, and where it cannot be ascertained whether the servant has any reason- able expectation of getting another place, the usual course of the Court is to decern for a specific sum, payable to the ser– vant, either weekly or monthly, till he finds a situation, and failing that, till the term of his engagement; or, to give such a modified sum as may, with the chance of future employment, make full reparation. See 236. To give the servant a decree for wages and board, which enables him instantly to recover payment, would give him an advantage ; for he might recover payment, and thereafter remove to a distance, and ob- tain another situation, and thus gain double wages and board D OMESTIC SERVANTS. \. 55 for the remaining part of the term. Tait, voce Servant. In awarding board wages, the circumstance that the servant was not obliged under his contract to sleep in the master's house, must be taken into calculation ; for there are many household servants in Edinburgh, and other large towns, who do not sleep in the house of their master. M'Lean v. Sheriff, 21st Jan. 1832, 5 Deas' Rep. 18. See 195. 219. 218. If the servant, after dismissal, get into another place before bringing the matter into a court of law, the sum awarded will be restricted to the wages which he has lost, and the expense to which he has been put, while out of place. Tait, voce Servant. Stuart, 19th June 1806, Hume's Dec. 390. - 219. It is a vulgar notion among servants, that it affects their claim against the master, for improper dismissal, their ac- cepting of any situation during the currency of the contract; but it does not. If it can be shewn that the servant could have been usefully employed, or was offered employment, but preferred idleness, his claim, on that account, is not so favour- able. The employment must always be understood to be of the same mature, or closely pertiment, to the duties for which the servant contracted. See 236. 220. When the dismissal is once made the subject of a law- suit, the master cannot get quit of the servant's claim, by of- fering in court to take him back, and to make reparation for what is passed. But if the servant voluntarily agrees to re- turn, the court will insist on his being properly treated. Dic- tum of Prof. Hume. - 221. Where it is the agreement of parties, that the servant may be dismissed at any time, that power can be exercised without assigning a cause. Pollock, 12th July 1829, 3 Sh. App. Cas. 430; Mitchell, 26th Jan. 1836, 14 S. D. If the agree- ment be, that the servant is to leave on payment of wages, money wages only, and not board, will be understood. Cooper, 5th March 1826. Where there are no such stipulations, a master may dismiss at any time without assigning a cause, on paying wages and board. Graham, 12th Feb. 1822, 1 S. D. 343. See 155. 222. If a party bring an action for wages on account of 56 - O BLIGATIONS ON MASTERS. improper dismissal, and thereafter refer it to arbitration, and abide by the award,—but does not claim, before the arbiter, any compensation in damages for the dismissal, except in so far as the evidence of the employment and dismissal might amount to such a claim, he is barred from afterwards suing for com- pensation. Dun v. Murray, 9 B. and C. 780; 4 M. and R. 571. See 235. for Batchelor's case. 223. If a servant be cozened of his master's money, the master may recover from the person that cozened him. 9 Rep. 113; 10 Rep. 130. 224. The principal waiter of a hotel is the steward, having a general charge of the establishment, and he can dismiss under- waiters or Boots for neglect of duty, &c. Where that charge is restricted, by agreement, the master then has the power of dismissal. - 225. Whether the 4 Geo. IV. c. 34. s. 3, gives Justices au- thority over menial servants, who misbehave in their service, see Jones v. Williams, 1 C. and P. 459–669. 2. Workmen. 226. The master is bound to receive the workman into his employ, and to give work, in terms of the contract. If the wages are dependent on the extent of work performed, then a full supply of it must be given during the period agreed on. Bell’s Prin. s. 192. 227. The party cannot be compelled to do work not con- tracted for, or to assist in the performance of household du- ties for the master's family. Peter, 26th Sept. 1818, 2 Mur. Rep. 25. - 228. Every master must exercise due authority among his workmen. He has no power to inflict bodily punishment, nor is he warranted in using menacing threats, or immoral lan- guage, to enforce his commands. His authority does not extend. to the general conduct and behaviour of the servant out of his premises, but only to their actual duties within doors. Gunn, 21st July 1835, S. D. B. See 201—3. 229. It has not been decided, but it is thought, that the master may lawfully, at the instant, punish workmen who are riotously engaged within his manufactory, to secure subor- WORKMEN. 57 dination and to save his property. It could not be expected that he is quietly to look on, and then sue such parties, unable to pay, for the damages occasioned by their outrageous con- duct. - 230. He may dismiss for dishonesty, abuse of property, re- vealing the secrets of his business, wilful disobedience, inso- lence, neglect of duty, want of ability or skill. See 206. 266. 231. Occasional absence is generally punished by abate- ment of wages, by the rules of the master's establishment; or by contract; or it may be punished criminally, under 4 Geo. IV. c. 34. - 232. A workman engaged, for a certain period, at fixed weekly wages, remained in his service till Tuesday evening preceding the Fast-day. On that evening his master told him he would require to go to Banchory next day, which was the Sa- cramental Fast, to do a piece of work. This the servant refus- ed to do ; and, on presenting himself on Thursday morning at the usual hour, he was not allowed to work. He brought an action against the master for breach of the agreement; and Sheriff Watson found the workman entitled to damages and expenses. The Sheriff remarked, that if masters could compel their servants to work on days set apart by the Church as fasts, with concurrence of the magistrates, it could not be said that the Church had any authority at all in this country; and as these fasts happened only twice a-year in the district, he thought it unreasonable in any master to pre- vent a servant from engaging in the religious exercises of that day, if he were so inclined. (Aberdeen Sh. Court.) See 129. 233. If a workman be engaged for a year certain, and be improperly dismissed, the master is liable in damages, which will extend to wages for the time the servant may be unem- ployed, or in such a sum as, from the whole circumstances of the case, may appear reasonable. Rae v. Leith Glass Co. 20th June 1780, Kilk. Reparation, 8. See 145–157. 234. Where the workman is engaged by the week, and is guilty of conduct authorizing dismissal, the master may in- stantly dismiss ; where he is engaged for a longer period, the master ought not to dismiss at his own hand, but proceed and obtain a discharge of the contract from a Justice of the Peace, 58 O BL IGATIONS ON MASTERS. in terms of the 4 Geo. IV. c. 34, if the workman falls within the meaning of that act, or of that of 10 Geo. IV. c. 52. 2 Hutch. 173. 3. Clerks, &c. 235. Where a party serving under a yearly engagement, at a fixed salary, is improperly dismissed, he is entitled to sue at the time of dismissal for the salary due, though the year be not completed. Paganie, 2 Car. and Pay. 307; Beeston v. Collyer, 4 Bing. 309; 1 Bell's Illust. 125; Sheddan v. Moffat, 8th Feb. 1839. Although he should on dismissal ac- cept of a gratuity, and again offer himself for the situation, yet these acts will not bar him from afterwards claiming full wages for the period of his engagement. Batchelor, 4th March 1831, Jurist ; Finlayson, 6th June 1829, 7 S. D. 717. 236. When the engagement is for years, as in the case of overseers in manufactories, &c. the servant when dis- missed has a claim for damages, to be judged of according to circumstances. Tait, voce Servant. In such cases, the ser- vant cannot be allowed to remain idle and unemployed dur- ing the whole period of the remaining term, but that some period of it must be allowed him to find out another situation. The damages awarded will therefore correspond to that pe- riod. A clerk in a post-office was allowed six months’ salary, from the presumption that within that time he could not find another situation. Jackson v. Aitchison, 15th Jan. 1790, unrep. ; Hume's Lec. Ten months’ salary, on the same ground, was allowed to a shipmaster, with board. Innes v. Brand, 1st June 1790, unrep. Hume's Lec. See Rae v. Leith Glass Company, 20th June 1750; Kilk. Reparation, 8. 237. The master is bound to deport himself towards the clerk with propriety and kindness, and to confine himself . strictly to the terms of the engagement. See 197-200. 238. A clerk may be dismissed without notice, for reveal- ing the secrets of his master's business. See Chap. XI. Or for any fault which constitutes a violation of the contract of service. See 206. 239. A clerk employed by a public company to enter their proceedings in their minute-book, entered on the margin of the T) OM ESTIC SERVAN'TS. 59 minute-book, a protest, in his own name, against an order to call a General Meeting to elect another as his successor. Such conduct was held by a Jury to form a sufficient ground of dismissal, and the verdict was sustained in the King's Bench. Ridgway v. Hungerford Market Co., 3 Ad. and Ellis, 177. 240. An action will not lie by a deputy against his principal for an increase of salary, without an express agreement, where the latter had been appointed to a new office. Bell v. Drum- mond, Peake, 45; M* Whirter v. Guthrie, 26th Jan. 1821, Hume's Dec. 760. - 241. Under a general issue of resting and owing, in a ques- tion between a merchant and his manager—held, 1. That in order to prove the manager's defence, that a deficiency in the stock arose from mistakes or accidental losses, it was ne- cessary to prove that these occurred in that particular house, before general evidence could be led to show that they were usual in the same business elsewhere. 2. That where the power of a manager was fixed by contract, no general evidence to show the practice as to the nomination of inferior servants by the manager was competent. Gye and Co. 24th March 1832, 10 S. D. B. 512. But a new trial granted. 26th June 1832, 10 S. D. B. 710. CHAPTER XIII. OBLIGATIONS ON SERVANTs. 1. Domestic Servants. 242. The servant must enter to his engagement at the term agreed on, or pay damages for the breach of his contract, like any other person who fails to implement his agreement. The damages are not only intended as a reparation for the master's loss, but as a solatium to him for the disappointment, and partly as a penalty on the servant for his wrong. Tait, voce Servant. See 195. 243: The master is not bound to accept of a substitute, 60 OBLIGATIONS ON SERVANTS. nor is the servant freed from his engagement by finding and offering another in his room; because a master, in selecting his servant, is often swayed by personal qualities, or by a delectus personae. An engagement thrown up more than forty days prior to the term of the servant's entering to her place, did not relieve her from a claim of damages, for breach of her en- gagement. Wallace v. Wishart, 7th March 1800, Hume's Dec. 383; Tait, voce Servant. See 34. - 244. The servant must continue in his situation the full term of his contract, unless he has a reasonable cause for leav- ing it; otherwise he forfeits not only his wages, but he is liable in damages. In estimating the damages, the court may take the previous service into consideration, in fixing the amount. Ersk. 3, 7, 16; Tait, voce Servant. 245. There are cases where a failure to fulfil the contract does not draw such serious consequences: 246. 1st, Marriage. It is a vulgar notion, that the marriage of a female servant, during the currency of her engagement, “breaks terms ;” but this question remains still undecided by the Supreme Court. Prof. Hume, in his lectures, considered it doubtful whether the husband is not liable in damages, for breach of the wife's contract. He says, “It might be urged that he is liable for this, as well as for the other obligations of the wife, seeing it is his act:—but, on the other hand, damages are only incurred through some fault; marriage is not a fault, it is merely a contract conformable to the dictates of nature. By the authority of the husband, he can enforce obedience from the wife ; and the woman, by this means, must serve two masters. This argument has never been tried before the Su- preme Court.” In a case relating to the enlistment of an ap- prentice in 1795, one of the Judges used the illustration: “Suppose a woman under an engagement for personal ser- vice marries, she will be free.” And another Judge stated ge- nerally, “that no personal engagement can prevent a servant from marrying.” But such observations, says Mr. Hutchison, 2d vol. 171, have not the same weight with opinions deliber- ately formed on a case involving the special question. And Prof. Bell, in opposition to the remarks of these two Judges, lays down in broad terms, that “the marriage of a servant, DOM ESTIC SERVANTS. --- 61 during the currency of the engagement, is no excuse for not fulfilling the obligation; and although a husband will be en- titled to the society of his wife, damages will be demandable.” Prin. s. 182. In England and France, a female servant, though she marries, must still fulfil the period of her engagement. It is thought, if damages be awarded, they will be estimated at much less than if she had deserted her service from caprice. See also 1 Bankton, 78; Tait, voce Servant ; Blair, 303, all of whom concede the master's claim to damages. 247. 2d, Enlistment. Where a servant enlists, he may leave his service without being liable in damages for breach of contract. This exemption is created by statute, on reasons of expedi- ency; it is against the rule of the common law. Bell's Prin. s. 182. In such a case he is entitled to wages for the time he has served. The master may, however, decline payment of them, until evidence be produced of the servant's attestation before a Justice. In all cases, it is proper to do so, because instances have occurred, where the wages were paid, on a ver- bal statement that the enlistment was completed, while it was only a sham enlistment to get rid of the master, and to pro- cure full wages. Disputes as to the wages must be deter- mined by the attesting Justice, after hearing the parties. It frequently happens, that the servant, after being attested, is re- jected at head quarters, as unfit for the service, and returned home. In such a case, it is thought, the master may claim his services, as the enlistment was not completed, and the pay- ment of wages not operating as a dissolution of the contract, like that of a voluntary payment by the master, and accep- tance of them by the servant. See 155. 248. 3d, Sickness. If a servant be incapacitated by sick- ... ness, or other inevitable accident, not imputable to him, from fulfilling the engagement during a short part of its currency, the contract is not thereby laid aside, although in part abridged. See Chap. XV. - 249. 4th, Change of residence. If the agreement be silent as to change of residence, the servant is bound to accompany his master from one part of the country to another, though he cannot be compelled to go to England or elsewhere out of Scotland. In general, a servant cannot complain, if his situ- 62 OB LIGATIONS ON SERVANTS. ation is not made much different from what could be maturally anticipated in such particular service, at the time of engaging. But there are distinctions to be observed, arising from the na- ture of the service. 3. 250. 1st, Domestic Servants. Their duty, which is of a per- somal nature, obliges them to follow the family of their master from country to town, or town to country, or to another house in the same town, though they have a dislike to it through fear or other cause. But this obligation on the servant does not extend to changes of an unreasonable kind, which were not an- ticipated at the time of forming the agreement. For example, to remove to a very distant part of the kingdom to reside per- manently, where the habits of life are attendant with greater expense, as in the shape of clothing, &c. In such a case, the servant could not be compelled to remove, without a guaran- tee for his return, and indemnification for time and expense. Bell’s Prin. s. 181; Tait, voce Servant ; Blair, 305. If the servant voluntarily follows his master out of Scotland, and be there dismissed, he has a right at law for the expenses of returning home. Elgin v. Sir Wm. Murray, 25th June 1788, wnrep. Hume's Lec. 251. 2d, Personal Attendants. Their service is of a wider range, and obliges them to accompany their masters through the United Kingdom, but not out of it, even on an offer of an addi- tional allowance. Blair, 305. In their case, if they volum- tarily follow their master abroad, and be there improperly dis- missed, or the master die abroad, they have a claim for the ex- penses of returning home. Callo, 4 C. and P. 518. If the servant has not the means of returning home, he must then apply to the nearest British functionary for the allowance granted by Britain to its subjects, when they are thrown. destitute in a foreign country. 252. 3d, Agricultural Servants. The engagement of a farm servant relates more to a particular district and set of agricul- tural operations, and does not bind him to follow the person of his master. If the ploughman engages to serve on a pro- perty in a southern district, he cannot be compelled to remove to one of the most northern in the kingdom. Blair, 304-5. Or if a master has an arable farm in one county, and a pasto- I) () MIESTIC SERVANTS, 63 ral farm in another, he cannot compel his servants to remove from the one to the other; for the duties are different. But a master acquiring another farm at no great distance from the one he then possessed, may compel his servants to remove to it, if the duties be the same. A rural servant cannot be turned to domestic service, or vice versa. Stuart, 19th June 1806, Hume's Dec. 390; Bell’s Prin. s. 177. 253. During the currency of the contract of service, there are certain obligations incumbent on both masters and ser- vants, which the law takes cognizance of. But there are, be- sides, other moral obligations of a finer nature, which, strict- ly speaking, the law does not seriously notice. For exam- ple, on the part of the master, such as being kind, forgiving, refraining from every manner of harshness, shewing a good example, and attending to his servant's moral and religious interests; and on the part of the servant, being grateful, cheer- ful, and desirous to please. Without the observance of these in a greater orlesser degree, much happiness and comfort is lost on both sides, and the obligations implied in the contract can- not be satisfactorily discharged. 254. The servant, by law, must behave with fidelity, shew due respect to the master and his family, and obey all lawful commands within the line of his duty, even though they may appear arbitrary and unreasonable. The servant is not en- titled to demand an explanation for the giving of any com- mands, nor is the master bound to give his reasons. Tait, voce Servant. - 255. Although the law obliges the servant to perform the duties bargained for, and the master from exacting more, yet the servant ought not to appeal to a court of law every time the master orders him to perform work which may be but a slight deviation from the contract; nor ought a court to au- thorize a servant to refuse obedience on such a plea; but if the orders by the master be often repeated, or, if what is required be a manifest departure from the engagement, the servant will not be bound to obey. Bell's Prin. s. 177. 256. The lawful commands of a master must be strictly obeyed by the servant. Departing from instructions with the mere intention of doing a benefit for the master, will fur- 64 # OBLIGATIONS ON SERVANTS. nish the servant no excuse for any injury that may thereby arise. 4 Camp. 183; 1 Ch. Blacks., 428. 257. While servants are bound to obey all lawful commands of their master, yet it is laid down as a rule, that in every case where the master has not power to do a thing, whoever does it by his commandment, is answerable for the consequences. Paley, 398; 1 Alison, 672. Lord Chief Justice Best, in an action to recover the cost of printing an obscene and libellous book, said, “I have no hesitation in saying that no person who has contributed his assistance to the publication of such a work can recover in a court of justice. Every person, though but a servant, is responsible for the mischief of it.” Poplet v. Stockdale, 1825, R. and M. 337. 258. A servant is not bound to obey the master's instruc- tions, if the compliance would have been a fraud upon others, because it is not a lawful command; besides, no one can be permitted to allege his own fraud. Paley, 8. 259. And a servant is liable to an action for the value of goods found, and converted to the use of his master; Cranch v. White, 1 Scott, 314. 1 Hodges, 61; or for ignorantly med- dling with another's property, by command and for the use of his master. Stevens v. Elevall, 4 M. and S. 259. 260. The servant's subjection to his master is no defence against a criminal act committed by him, unless he can show coercion by the master, and the reasonable fear of violence, against which he had no sure or near protection. 1 Hume, 49-50 ; Ersk. 4. 4. 14. - 261. If a master order his servant to distrain another man's cattle, and after he hath distrained he kills or abuses the dis- tress, the servant and not the master is liable. Noy's Maa:- âms, 111. A master is not answerable for his servant's fault in abusing a neighbour's stray horse, unless he connives. Dal- rymple, 19th Jan. 1804, Hume's Dec. 387. Nor is he answer- able for any injury stray horses may sustain, when driven back the way they came, by his servants. The plea that the master ought to have poinded the horses for the trespass, was dis- regarded. Heriot, 6th Dec. 1837, 6 S. D. 211. 262. Disobedience to the lawful commands of a master is a proper ground for dismissal, with forfeiture of wages. A ID OMESTIC SERVANTS. 65 female servant, who absented herself on a Sunday, although it was her “Sunday out,” after orders were given to her to re- main that day at home, she being then under medical treat- ment, was refused wages and board. One of the Judges re- marked, “Had the servant been in perfect health, would it be reasonable, where there is distress in a family, or from other pressing cause, that a master shall be denied his servant's as- sistance, on the plea of its being her Sunday out? If she be detained that day, she is entitled to another.”—Notes at advis- ing Hamilton v. M'Lean, 9th Dec. 1824, 3 S. D. 379. In England a yearly servant was dismissed, because he refused to go to a marsh, about a mile off, before dinner, it being then ready. The servant said he had done his due, and would not go till he had had his dinner; whereupon he was dismissed without offering any submission. In an action for ten months' wages, the master answered that the contract was broken by disobedience, and, besides, the year's service had not been per- formed. The servant replied, that if the master had reason to complain, he might have done so to a Justice, under 4 Geo. IV. c. 34. for relief: that the master could not dissolve the contract, and bereave the servant of his wages, for he might then put an end to the contract on the very last day. Lord Ellenborough said, “If the contract be for a year's service, the year must be completed before the servant is entitled to be paid. If the servant persisted in refusing to obey his master's orders, I think he was warranted in turning him away. He might have obtained relief by applying to a magistrate, but he was not bound to follow that course ; the relation between master and servant, and the laws by which that relation is re- gulated, existed long before the statute. There is no contract between the parties except that which the law makes for them, and it may be hard upon the servant, but it would be exceedingly inconvenient if the servant were permitted to set himself up to control his master in his domestic regulations, such as the time of dinner. After a refusal on the part of the servant to perform his work, the master is not bound to keep him as a burdensome and useless servant to the end of the year. In the present instance, it might be very convenient for the master to change his hour of dinner. The question E 66 OBLIGATIONS ON SERVANTS. really comes to this, whether the master or the servant is to have the superior authority ?” The action for wages was given up. Spain v. Arnott, 2 Stark, W. P. 256; 5 Ch. Burns, 549. See 216. A claim for wages was disallowed, where the servant was dismissed for going a short distance to attend afair, after asking leave, which was refused. A farmer hired a num- ber of shearers on a Monday morning, at a certain rate for the week. The shearers conducted themselves with ordinary propriety until the morning of the Friday following, when they refused to resume their work, after breakfast, until they had an interval of an hour; and they also were determined to have the same at dinner. The farmer remonstrated with them on the unreasonableness of their demand, as the weather had been so unfavourable, and as they had been so frequently interrupt- ed in their reaping by rain. They still adhered to their de- mand, and refused to work when required; the farmer then offered them the wages earned, and desired them to leave. This they refused to do, but demanded their whole week's wages, and used every means of intimidation, by brandishing weap- ons, declaring that they would not leave the premises until their demand was complied with. After being threatened with a criminal prosecution, they left, but returned in an hour, de- claring themselves willing to accept the wages formerly offer- ed them. The farmer told them, that although for peace' sake he had formerly offered the wages for the time they had wrought, yet he would not now give these, on account of their insubordination, nor would he receive them again into his em- ployment. An action for their whole week's wages, besides board, for the Friday and Saturday, was brought; when the Sheriff, after hearing evidence, decided that they had forfeited all title to their wages; and he took occasion to express him- self strongly on the unreasonableness of their conduct, declar- ing that he would not sanction their standing too closely to hours at any time, more especially in so calamitous a season as that had been. (Stirling Sh. Court, 1839.) See 29. 263. A cook was dismissed with forfeiture of wages, for giv- ing away provisions belonging to her master to vagrants, contrary to repeated directions not to do so. Sheriff Trot- ter of Dunblame held, that no servant had the right to give D OMESTIC SERVANTS. 67 away the master's property in charity, without his permis- sion, however insignificant it might be. The giving away, coupled with disobedience, justified the dismissal. (Dunblane Sh. Court, 1837.) - º 264. Dismissal will be justified, where the servant wilfully or negligently allows his master's property to go to waste. In the case of a cook, guilty of an improper waste of family pro- visions under her charge; and a dairy-maid for a like impro- priety in her department, were found to be properly dismissed, and not entitled to wages, for the time served, as they had violated their contracts, which obliged them to observe in their departments the same prudence and provident care that their employers would have done. The Sheriff stated, “ That as every servant is bound to indemnify his master for wrong oc- casioned by impropriety, the latter might, if the forfeited wages did not cover the loss, resort to an action against the servants to makefull indemnification.” (Perth Court, 1834.) See also I Ch. Blacks. 428; 5 B. and A. 820; 1 Esp. 74; Elder, 9th March, 1802, Hume's Dec. 386. 265. Gross and culpable negligence on the part of the ser- vant in the performance of his duties, will justify dismissal, with loss of wages. But such conduct will not ground a de- fence against payment of the wages, if the servant be allowed to serve out the engagement without complaint. Fraser v. Lang, 10th Feb. 1831; Ersk. 3. 3. 16. : 266. Want of ability in a servant to perform the duties en- gaged for, voids the contract; for although the selection re- mains with the employer, yet he is entitled to rely on the ser- vant's ability to perform his part of the contract. Bell's Prin. s. 152; Blair, 306. Dismissal on the ground of inability is a question of evidence. In England, if the servant cannot give the consideration for his wages, he forfeits them, even for the time he has served. Ridgway v. Hungerford Market Co. 3 Ad. and Ellis, 177. But if the servant at hiring fairly disclosed the imperfect state of his qualifications, and the mas- ter engaged with him in the full knowledge of them, there is then no room for dismissal, but both must put up together the best way they can, for the full term of the engagement. Gunn, 3d June 1801, Hume's Dec. 384. - . 68 OB I, IGATIONS ON SERVANTS. 267. Insolent or disrespectful language by a servant to his master; or, performing his duties in an insolent and impudent manner, by way of contempt for his master, are grounds for dis- missal. Much, however, will depend upon the rank of the par- ties, and the nature of the insolence. If the master be in high rank, and the words deliberately spoken, or the conduct impu- dently pursued, the servant will have no claim for wages. Where a servant, engaged at £50 per annum, removable at one month's notice, or on payment of a month's wages, was guilty of disobedience and insolence;—the Court held, that the disobedience and insolence took the case from under the stipu- lation of the agreement, and that the servant therefore did not simply forfeit a month's wages, but the whole wages due to him from the immediately preceding term-day. Silvie, 3d July 1830, 8 S. D. 1010. In the unreported cases of Handyside, Feb. 1787, and Bennet, March 1802, Hume's Lec.–the masters were assoilzied from the servant's claim of wages and board, chiefly on the ground of the insolent and contemptuous expressions used by them towards their masters. 2 Hutch. 168; Bell’s Prin. s. 179. Where a courier or valet drove the plaintiff's family to a hotel in Padua, where he had been desired not to stop, and had been occasionally sulky and negligent, and once insolent in his manner, it was considered sufficient grounds for dismissing him. Callo, 4 C. and P. 518. 268. But if the parties be more on a level in point of rank, and the words uttered by the servant in anger, or in recrimina- tion, he will have a claim, on dismissal, for wages for the time he served. Prof. Davidson's Lec. 269. Angry words by a master to a servant without a for- mal dismissal, will not entitle him to leave his service, and claim wages. Stirling, 6th Dec. 1832. 270. If a servant be employed as butler, or cook, with power to purchase provisions, &c. for the use of the master's establishment, he is bound to purchase in the most beneficial manner. It is contrary to duty and the trust reposed in him, to deal in any way that admits him to receive out of the pur- chases a share of the profits. To charge more than actually paid, is fraud. Paley, 37. 38. 271. A servant guilty of dishonesty, or of theft, may be in- D O M EST : C SE IRVANTS. 69 stantly dismissed, with forfeiture of wages. Maawell v. Buchanan, 5th March 1776. - 272. Property entrusted by the master to a servant, does not transfer any right to him. Thus, when plate is entrusted to the butler, linen to the chamber-maid, horses to the groom, stores to the housekeeper, clothes to the footman, sheep to the shepherd, tools to the gardener, &c. the property is not transferred; the custody is still in the master, and he is still held as possessing by the hands of his servant. The abstrac- tion of the articles by the person so entrusted, is theft. 1 Ali- son, 250. If a servant opens his master's repositories with the keys which he has found mislaid, or taken out of his pocket; or, if being sent with a key to fetch an article from some locked place, he take the opportunity to secrete some other article; or, if he take his pocket-book out of his pocket when brushing the clothes; or, if the groom carry off the plate from the butler's pantry, or the butler take a horse from the sta- ble:—in all these, and similar cases, there is no sort of custody or trust reposed in the servant, and his felonious ap- propriation is unquestionably theft. 1 Alison, 258. A ser- vant is guilty of theft, who abstracts goods from the master's shop, which he is entrusted to sell for a bona fide price. 1 Alison, 251. And it has also been held, that a servant's abstracting corn to give his master's horses, is theft, especi- ally if his own labour be thereby diminished. I Alison, 277. 273. Servants are not entitled to seize upon, or to detain their master's money or property, for payment of their wages, without his permission. Pearson, 9th Nov. 1762. 274. Taking goods from merchants with whom the master deals, on false and fraudulent pretences, is punishable by im- prisonment or transportation, accCording to the degree of fraud of which the servant is guilty. 1 Alison, 362. 275. When servants are convicted of robbing their masters, as the security of families so much depends on their honesty, and as a violation of the confidence reposed in them is a high aggravation of the crime, they are always punished with the utmost rigour which the law admits. If the robbery be com- mitted after leaving the service, their knowledge of the pre- mises, and habits of the family, creates an aggravation. 70 OBLIGATIONS ON SERVANTS, 276. A dwelling-house may not only be broken open by force, but by concert or connivance with a servant or other person who has the means of giving admission. In the latter case, the crime of house-breaking lies against the servant, and all concerned. l Alison, 287. In England, a servant opened the street door and let in the thief, shewed him the sideboard, from which he took the plate; then opened the door, and let him out. The servant did not go out with him, but went to bed :—The Judges were all of opinion, that although the ser- vant did not leave the house, it was house-breaking in both, and the servant was executed. 5 Ch. Burns, 560. It is burg- lary, if a servant, who is already in a house, open the cham- ber-door of his master or mistress, whether latched or other- wise fastened, with intent to commit a felony. 1 Alison, 286. 277. It is an indictable offence in England, to incite and solicit a servant to steal his master's goods, though the servant does not do so, and no other act be done except the soliciting and inciting. 5 Ch. Burns, 560. In Scotland, however, this rule is not acted upon. See 1 Hume, 28. 278. Where certain articles were stolen from a factory, some of the workmen, with the sanction of the master, devised a plan for discovery of the thief and resetter; in pursuance whereof, they marked some articles, and offered them as stolen to A. whom they suspected, and who took them as stolen goods to sell; A. then carried them to the house of B. who was not within, and left them. On a search being made by the police, the articles were found in the house, and B. was apprehended and imprisoned on a charge of reset, but shortly thereafter discharged from want of evidence. In an action of damages by B. against the master, it was held that the above plan was not illegal in itself, but that the apprehension, as for reset of theft, when the parties knew there was no theft com- mitted, was wrongous, and the pursuer got £20 of modified damages and expenses. Richmond, 10th March 1838, 16 S. D. 995. r 279. If a servant conceals from his master the dishonesty of his fellow-servants, he is culpable, and may be dismissed, for his contract of service binds him to observe, with care and diligence, the interests of his master, and to exert the same #. - - D OMESTIC SERVANTS. 71 viligance that the master would have done. 5 B. and A. 820; 1 Ch. Blacks. 428. Even where the servant acts without fee or reward, he is bound to take the same care of the master's interest, as he would observe in the management of his own private affairs. 1 Esp. 74; 5 T. R. 143. 280. Habitual intemperance in a servant, so as to render him slovenly or imattentive, or to incapacitate him from perform- ing his duties, forms a sufficient ground of dismissal; for no mas- ter can be compelled to retain such a servant, whose example is so permicious, independent of the loss arising from the in- ability to perform the duties required of him. In England it was found, that once drunk is not evidence of being a habi- tual drinker. 281. If a female servant fall with child during her engage- ment, she may be dismissed with forfeiture of wages, unless particular circumstances justify the giving of them for the time she continued in service. 1 Bankton, 78; Blair, 307. In the English case of Ashover v. Brampton, Lord Mans- field said, “The question is, has the master dome right or wrong in discharging the servant for this cause P I think he did not do wrong: shall the master be bound to keep her in his house P To do so, would be contra bonos mores ; and in a family, where there are young persons, both scan- dalous and dangerous.” 5 Ch. Burns, 548; 2 Hutch. 167; Tait, voce Servant. 282. A man-servant who debauches any of the maid-servants in the master's family, may be dismissed without wages, un- less there be circumstances that justify the giving of wages for the period he has served. Blair, 307; 2 Hutch, 169. A traveller, engaged on a yearly salary, who lived in his em- ployer's house, having been guilty of assaulting one of the maid-servants, with intent, &c. was dismissed. The ground of the dismissal, by the master, was first alleged to be, that the traveller had not in his last journey got orders enough to cover his expenses; and offered the salary for the time he had served. But in an action for the full salary, the master pleaded not only the tender of the wages for the service given, but the assault, with intent, &c. Lord Tenterden held, that no wages were due ; but as the tender had been made, the mas- hº .* 72 OE LIGATIONS ON SERVANTS. ter was not bound to pay more, and as it had been refused, a verdict for the master was accordingly returned. Aitken, 4 Car. and Pay. 208. 283. A female servant will be justified in leaving her ser- vice, where the master assaults, with intent, &c. or attempts to effect a criminal intimacy, because the implied protection under her engagement is thereby broken ; and she can, on no principle, be obliged to remain, exposed to consequences that may bankrupt her hopes in life. In such a case, she will not only be entitled to wages and board, but she has a civil claim for reparation. In M* Lean v. Miller, 14th May 1832, 5 Deas' Rep. 270, damages to the extent of £25 were given, where proof of the intent had failed. 284. In a case of assault, with intent to commit, &c. where the party waives the criminal protection, and asks damages under the civil law, the declaration of the female, made recent- ly after the assault to a witness, is inadmissible evidence. And when the case is under examination, if a witness, called by her, be detained in any way by the agent, or by the friends of the master, warrant will be granted to apprehend the witness, and seize any person who will dare to resist its execution. M'Lean, ib. 285. Crime, when pursued as such, must be prosecuted within a time limited : but crime, when made the foundation of a civil action, has the limits of a civil plea. Ib. 286. Immoral conduct in a man-servant previous to being hired, is not a ground for dismissal. Lord Mansfield held, that a servant who was the father of a bastard prior to the hiring, and the crime not committed when in his master's house, could not be dismissed on that pretence, for it was not debauching the master's servant, or turning his house into a brothel. 5 Ch. Burns, 560; 2 Hutch. 170. But in the case of a female servant, if she had illegitimate children previous to being hired, which was then unknown to the master, it would be a ground of dismissal, if her character was both bad and public, because she thereby taints the respectability of the master and his family. Tait, voce Servant. Where an unmar- ried female servant admitted a man, not a resident in the family, DoMESTIC SERVANTs. 73 to her bed-room during might, she was refused wages and board. (Perth Sh. Court, 1829.) 287. Where a servant pursues a line of conduct, which, though not striking directly against the interest of the master, makes his presence in the family a cause of scandal, or sets forth a permicious example before fellow-servants, he may be dismissed; and, according to circumstances, will either be en- titled to no wages, or only for the time he has actually serv- ed. 2 Hutch. 169 ; Tait, voce Servant. 288. There is a conduct practised by thoughtless servants, called in the Scotch and English law “Eaves-dropping ; ” that is, listening at the back of room-doors, or under the windows of their master's house, to learn the conversations of the fami- ly, which is repeated and circulated, not unfrequently in a distorted form, to their injury :—such conduct may be punish- ed at common law, by ordaining the servant to find security for future good behaviour. Tait, 382. It is also a proper ground for dismissal, because the comfort and happiness of a family cannot be abridged, in order to retain a servant whose conduct is so hurtful to its domestic peace, and so offensive at common law. The giving or refusing wages, however, must be dependent on circumstances, such as rank, extent of mis- chief done, &c. (Perth Sh. Court.) - 289. There is another source of annoyance and unhappi- ness to families; that is, having their harmless diversions, or ha- bits, &c. spread abroad, and misrepresented by thoughtless servants. Where it is done with the malicious design of af- fecting the family, dismissal is justifiable. 290. The conduct of persons in any way encouraging ser- vants to reveal family matters, is highly reprehensible. To re- peat any part of their tattle in order to injure the family, is ac- tionable. It is no matter whether the circulator repeats after an obscure servant, or a person of note. Borthwick, 175. 295. 300. The injury increases as the report circulates, which ought to induce reflection and to suppress utterance, be- cause there are the additions of shade and colouring. The last calumniator is the most poisonous, and deserving of most pun- ishment. Each circulator is liable to an action. Common re- port is another thing. 74 OBLIGATIONS ON SERVANTS. 291. Administering laudanum, or other marcotic or deleteri- ous drugs, with intent to produce stupefaction, whether in ma- lice, or to facilitate the commission of any crime, is an indic- table offence, always visited by an exemplary punishment. 1 Alison, 629. Very recently a case occurred in Edinburgh, where laudanum was maliciously administered by a female ser- vant. It would appear that she, in order to get out during night unknown to her master or mistress, put laudanum into the coffee served to them at bed-time, to induce sound sleep. This was known to a fellow-servant, who was kept silent by threats; but it was accidentally discovered by a third party, who caus- ed it to be made known to the family. Unfortunately, how- ever, the servant had been the day previous dismissed for mis- conduct, and her criminality went unpunished. It would ap- pear, that the laudanum had been maliciously administered by the servant for a period of two months. 292. In England, if a servant assaults his master or mis- tress, he is punished by one year's imprisonment. I Ch. Blacks., 491. In Scotland, he may be dismissed with forfeiture of wages, and punished criminally for the offence. To constitute assault, it is not necessary that there should be actual violence to the person of the master or mistress; it is sufficientif such was intended, and either he or she aimed at, incurred alarm on that account. The lifting of the hand to strike a blow with the fist, though it should fall short and not take effect on the person, is an assault. 1 Alison, 175. So is spitting in one's face. The assault is aggravated when committed with a lethal weapon. In the case of Janet Thomson, 23d July 1826, eighteen months’ confinement and hard labour in Bridewell were inflicted for having struck a fellow-servant repeatedly on the face and temple with an Italian iron, by which she was knocked down, rendered insensible, and put in danger of her life. The same punishment followed for an assault with a glass bottle on a workman, when going to his labour in the morning. 1 Alison, 183-4. A farm-servant, who was sub- jected in damages for a severe personal assault on a fellow- servant, held not entitled to the benefit of a decree of cessio bonorum, except on condition of paying to his fellow-servant 2s. per week out of his wages, which amounted to 5s. per week D OMESTIC SERVANTS. 75 in money, besides bed and board, so long as he was in receipt of such wages. Kerr, 16th May 1837, 15 S. D. 928. 293. Debt and imprisonment will not excuse a servant from fulfilling his contract, but his wages will be forfeited, and dam- ages will arise to the master. Bell’s Prin. s. 182. But if the imprisonment has been brought about, at the instigation of the master, to void the contract, he will be liable in damages. Wight, 25th July 1828, 4 Mur. Rep. 590. In England, if a servant be taken into custody for any offence, and legally detained from his master's service, the master is authorized in discharging him, on payment of such wages only as are actually due. 294. If a servant be dismissed, who has been guilty of mis- conduct which constitutes a sufficient ground of dismissal, although the misconduct did not form the master's motive for dismissing him, the servant cannot recover wages, either for the year, or for the period he served. 2 N. and M. 829; 3 N. and M. 177; 4 Camp. 375; 3 Ad, and Ellis, 177. See 212. 213. 295. Malicious abuse of a master's property is a ground for dismissal with loss of wages, besides being liable in dam- ages for the injury done, or criminally prosecuted. 1 Alison, 450. Wages and board were denied to a farm-servant, who had been guilty of excessive cruelty to a work-horse under his charge, which decision was affirmed on appeal by the Sheriff. (MºEwan, Oct. 1826, Perth Court.) The like judg- ment was repeated, where a servant maliciously struck a young horse with a pitchfork, which made it unfit for work for twelve months; and again, where a post-boy, in a state of intoxication, drove his master's horses so furiously, that one of them fell from exhaustion and died. In the last case, the ser- vant was found liable in the value of the horse. (Neilson, 1831, Perth Court.) - 296. Servants may be proceeded against, under 3 Geo. IV. c. 71. for cruelty to their master's horses or cattle, by a complaint within ten days thereafter, before any Justice of the place where the cruelty was committed, who is authorized to pun- ish the offender by imprisonment. - - - 297. By the acts 1581, c. 110, and 1587, c. 83, the break- 76 O BLIGATIONS ON SERVANTS. ing or destroying of ploughs, or plough-gear in time of tilth, the killing, goring, or houghing of oxen, horses, or other cattle, at seed or harvest time, and the breaking and destroying of mills, are indictible offences, which were punished with death, but they are now visited with an arbitrary punishment. This, however, is to be understood only where the damage is done out of malice to the owner. 1 Alison, 448–450. 298. By 1 Geo. IV. c. 4, if any person whatever shall be in- jured by means of the wanton and furious driving, or racing, or by the wilful misconduct of any coachman, or other person having charge of any stage coach or public carriage, such coachman or other person shall be guilty of a misdemeanour, punishable by fine and imprisonment. 3 Geo. IV. c. 45. 299. In the management of carts or carriages, the driver is answerable for that degree of attention which persons of ordi- mary care and capacity exert in that employment, and for the due observance of all the rules of careful driving. If, in con- sequence of the neglect of any of the rules, a fatal accident should occur, the party in fault will be deemed guilty of cul- pable homicide. 1 Alison, 116. If a driver of a carriage is on his proper side of the road, and sees a horse coming furiously on its wrong side of the road, it is the duty of the driver of the carriage to give way, if there be room, and avoid an accident, although in so doing he goes a little on what would otherwise be called his wrong side of the road. Turley v. Thomas, 8 C. and P. 183. 300. By the 4 Geo. IV. c. 49, sec. 97, servants engaged in driving carts for employers, are liable in a penalty not ex- ceeding £5, besides damages, for— Pirst, Riding in carts, &c. without double reins. Second, Leaving cart travelling on road, without some per- son to guide the beast. Third, Allowing dog to go at large, and not chained to the cart or carriage. Fourth, Not keeping to the left, or near-side of the road, on meeting or being overtaken by any other carriage or rider. See 299. for the case of Turley. Fifth, Wilfully preventing any other person passing him, or his carriage. WORKMEN, &c. 77 301. By the 98th section, drivers or owners are liable in a penalty, not exceeding 40s.— First, If one driver has the charge of more than two carts, &c. Second, If the last of two carts has more than one horse, and both carts under the charge of one person. Third, If the horse in the hindmost cart be not attached by rein to the back of the foremost cart, and following in the same line, not more than six feet behind. 302. And by the 99th section, it is enacted, that drivers shall be of the full age of fourteen years, under a penalty of 40s. for each offence, against the owners of the cart or carriage. 303. It is culpable homicide, if death ensue, in the perfor- mance even of an act not in itself criminal, if due care be not taken in the performance of it. The general principle is, that in acts, either of duty or amusement, all persons are bound to take due care that no injury is done to any of the lieges; and that if death ensue from the want of such care, they must be answerable for the consequences. The degree of care which law requires, varies with the degree of peril which the lieges sustain from its want. A servant was found guilty of culpable homicide, and imprisoned for having shot his master's wife, in handling a gun, which he presented to her, not know- ing that it was loaded. If workmen, on the roof of a building, throw down slates or rubbish in a frequented street, without giving timely warning to the passengers, and kill a person; or quarriers blast a rock without due precaution, or labourers fell a tree without due care, whereby death ensues, it is cul- pable homicide. I Alison, 115. 116. 304. Where every precaution and care have been used, it will be construed as casual homicide, if death should arise through performance of the act. 1 Alison, 140. 2. Workmen, &c. 305. The engagement of a workman or artificer is either a contract on time, or by piece-work, for labour to be perform- ed in a workshop or manufactory along with other workmen. The contract on time, like that of domestic service, is verbal for a year or a shorter term, but requires writing for a longer 78 OBLIGATIONS ON SERVANTS, period. Paterson, 17th June 1830, 8 S. D. 931. There is an implied condition in the engagement of a workman, that he will comply, in regularity of hours, and employment, in sub- ordination, and due civility, with the rules of the master's es- tablishment. Bell’s Prin. s. 190. 191. 306. Like domestic servants, they may be dismissed with- out previous notice, for conduct that amounts to breach of the engagement. See 206. 307. There is another peculiarity in their engagement, that the master is entitled, in the absence of any stipulation to the contrary, to the sole and exclusive service of the workman in the course of the employment for which he is retained. Whatever service therefore is performed by him for another, in the same course of employment, is to be considered as done for the master. Thomson v. Havelock, 1 Camp. 527. If the master has received payment for the service, the work- man cannot recover it from him. Paley, 105-6. 308. The master, however, cannot claim the value of trifling jobs done by the workman, during his bye hours, unless he uses his master's tools and materials. 309. A workman cannot refuse to go to the country to be- gin and finish work undertaken by his master, unless it be contrary to their bargain; but he may refuse, if the trade al- lowance for travelling to and from the place be withheld. An- derson, 24th June 1837. ** 310. If the workman engages to work in a certain locality in Scotland, where there are other works in the same line of business, he cannot be compelled to follow his master to Eng- land, or any part of Scotland where his prospect of practice and improvement in his business will not be the same. Tait, voce Servant. The services of a female spinner could not be transferred from one mill to another, situated a greater dis- tance from her residence, although the work and wages were the same ; and the master, to obviate the objection, offered to pay a person to carry her victuals so long as she wrought at the more distant mill. Anderson v. Moon, 24th June 1837. 311. Misconduct or misdemeanour in a workman, within the 4 Geo. IV. c. 34. or 10 Geo. IV. c. 52. may be punished summarily by imprisonment, or by abatement of wages, in workMEN, &c. 79 whole or in part; or the Justice may discharge the workman from his service, by a writing under his hand and seal gratis. The complaint may be made by the master or mistress, or by his or her steward, manager or agent, upon oath, before any Justice of the county or place where the workman has con- tracted, on which a warrant is granted to apprehend the of fender and bring him for examination. Although the Act de- clares that the complaint shall be made on oath by the master, &c. yet it may be verified upon the oath of any other person who knows the facts complained of. Finley v. Jowle, 12 East, 248. Lord Ellenborough held, that the words of the Act must be understood with reference to the subject-matter. The ap- plication or complaint must be made to the magistrates by the master or mistress, because they alone have an interest in pre- ferring it; and it must be verified upon oath; but it need not be upon the oath of the master or mistress, who may know no- thing of the fact themselves: the complaint may be well found- ed upon some cause which happened in their absence. But it is sufficient that the master makes the complaint, and veri- fies it by the oath of the person who knows the fact: other- wise, unless the fault were committed in presence of the mas- ter, he would be without the remedy intended to be given by the legislature. 312. A complaint was sustained, under the statute, against a workman in a glass-manufactory, who refused to workin con- sequence of the alleged insufficiency of the assistants provided for him. White v. Watson, 21st Nov. 1836; 1 Swin. 343. In another case, where the servant was frequently absent with- out leave,—refused to obey orders, and gave insolent lan- guage when desired to do his duty; Robinson v. Mitchell, 6th July 1829, 7 S. D. 835; and where the servant would not turn out a fair day's work, although able, gave insolence, and frequently absented himself without leave; Crawford v. Wilson, 19th Nov. 1838, 2 Swin. 208: In the last two cases the sentence of the Justices were suspended from an error in the procedure. 313. Imprisonment for misconduct does not dissolve the contract. Lord Ellenborough held, in a case regarding the settlement of a servant in England, who had been imprisoned 80 OBLIGATIONS ON SERVANTS, for misconduct by the Justices, under the act 20 Geo. II. c. 19, which is extended by the 4 Geo. IV. c. 34.—that “it would be clearly against the policy of the law, if the servant, by his own act of delinquency, should have the power of dissolving the contract. The Justices have that power, but they have not exercised it. The imprisonment of the servant was, so far from being a cessation of the service, that perhaps his labour might have been required of him by the master even while he was in prison. It is stated that the master deducted the wages for the period during which the pauper (servant) was absent. But after that period he returns into service, and nothing passes between the master and servant with respect to any al- teration or new contract. The master had his election to void the contract, but he made his election.” Bayley, J. “The relation of master and servant continued motwithstand- ing the commitment of the servant, procured by the master. The commitment did not set free the servant from his con- tract to go wherever he pleased, after the imprisonment ceas- ed. That would be allowing him to avail himself of his wrong- ful act.” Rea. v. Inhabitants of Barton upon Irwell, 2 M. and S. 328. * 314. Wanton destruction of a master's property, may be punished criminally. A collier was indicted for knocking away the props of a colliery, whereby the roof fell in, but the party fled before trial. Eighteen months' imprisonment was passed on a party, who maliciously let some oil casks run off, whereby oil to the value of £300 was lost. Doubts were ex- pressed whether transportation should not have been the pun- ishment. I Alison, 450-1. 315. If any workman, labourer, servant, or apprentice, are found spending their wages in gaming with cards, or with any other implements of gaming, they are liable in payment of a pe- malty, one moiety of which goes to the informer, and the other to the poor. 30 Geo. II. c. 24, s. 11. 15. See also the Licens- ing Act. 316. Journeymen calico printers engaged by the piece or job, and to be accommodated by the masters with houses near the printfield, the rent of which was deducted monthly from their wages, held, that they could be summarily removed from ČLERKS. 81 the houses when dismissed from their service. Young, 16th December 1808, Hume's Dec. 582. See Chap. IX. 3. Clerks. 317. The engagement of a clerk implies obedience, subor- dination, regularity of hours, due civility, strict care and fide- lity. Impropriety of conductis, in their case, less excusable, than in the case of an ignorant servant. The criminal acts of breach of trust, or of theft, are uniformly punished by imprison- ment or transportation. Salary when recoverable, and how af- fected by master's bankruptcy; see Wages: also see Sickness. 4. Waiters, Chambermaids, Boots, &c. 319. The engagement of head waiter of a hotel, where a premium is given, is a matter of special contract ; where no premium is paid, the engagement can be terminated on either side on a moment's notice. It is usual, at his entry, to receive an inventory of the property to be entrusted to his care, for which he becomes responsible. All that is taken from the bar for companies within the house is placed to his debit, for which he must account at short intervals. Tait on Evid. 467. He has only bed and board ; no wages. Out of his “chances" he must pay for under waiters, who are engaged and paid by him weekly. See 224. 320. Boots has only bed and board. His engagement also terminatesin a similar manner. In practice he furnishes slippers for the bed-rooms, brushing materials, and Bath bricks. He has sole charge of the cutlery, and must account for it when required. Out of his chances he must pay for assistants. 321. The chambermaid is engaged either yearly or half. yearly, with the Scotch term of notice ; or for an indefinite period, with the English notice of one month. See 111, 112. Her engagement is either to pay out of her chances for the ser- vices of the under chambermaids; or the chances are paid over and divided among them in due proportions. 322. In an English case, Justice Coleridge held, where £7, 10s. was charged in a gentleman's bill for waiter, cham- bermaid, and boots, that such a claim was not actionable, for it was optional in persons frequenting a hotel to allow any thing to servants; but, if the plaintiff could instruct that the F 82 O B L IGATIONS ON SERVANTS, defendant agreed to pay for such services, an action would lie. O’Mally Irwin, May 1839. 323. The engagement of an ostler is terminable on a mo- ment's warning. Generally he has bed and board, but he must provide all stable furniture. He has his “chances,” out of which he must pay for the assistants, or “strappers,” who are weekly servants. Stable light is a matter of special contract. 324. A postboy's engagement is dependent on good beha- viour. He must have a “ kit,” to enable him to turn out on an instant, at funerals, pleasure parties, &c., in a clean and proper condition. The horses under his charge must be daily dressed, and the harness and carriages set apart to him pro- perly cleaned. Threepence per mile, and fourpence during night or tempestuous weather, or 5s. for the day, is his allowance. 325. The guard and driver of a stage-coach are remuner- ated solely by their chances. Their engagement implies per- formance of the proprietor's duties; namely, attention to, and the safe conveyance of, passengers and of goods. They di- vide the labour. The coachman's duty is to drive along the road in a proper manner, and never to part, during the jour- ney, with the proprietor's reins. The guard is generally a person of sound discretion. His duty is to attend to the pas- sengers and goods. In short, he commands the conveyance. Any passenger insulted is entitled to appeal to him : he can cause seats to be exchanged to remove the complaint; or if the party complained of still persists in giving annoyance, the guard can “pull up,” and leave the party on the road. His authority is built upon this sensible rule, that, when a party contracts to be carried, he tacitly engages to indulge in no freaks or folly, but to deport himself with prudence and cir- cumspection. Upon that understanding, the proprietors en- gage to carry him, under all legal responsibilities. To per- mit the freaks or fancies of silly people, to the annoyance of other passengers, would render a valuable mean of communi- cation a journey of pain and unhappiness. In moimstance, so far as can be traced, has a guard's valuable authority been abused. In England, where a passenger repeated, after remonstrance, an insult to a female, the guard pulled him from the coach. It was the subject of a litigation, but by advice of counsel it was dropt, and the coach proprietors were paid their ex- EFFECT OF SERVANTs' Evi DENCE. 83 penses. Another case occurred, where a gentleman, who carried a spirit flask, got tipsy during the journey : the guard left him on the road. An action was raised for posting ex- penses, but it was abandoned; because the statute law does not permit tipsy people to be carried on the top of a coach, for the jolting might endanger life. According to the rules of travelling, smoking on the outside of a coach is not permitted, unless agreeable to the passengers who must endure the fume. It is never permitted in the inside ; and a guard cannot grant such indulgence. Adhesion of smell, &c. are the proprietors' plea. 326. The guard of a mail coach has a weekly allow- ance from government, a fourth or fifth of which is kept off for his uniform. His duty is to attend to the letter bags. He has the same powers as the guard of a stage-coach. As the responsibilities of his office are great, and must account daily for lost time in carrying the letters, he can order the mail to proceed without waiting to pick up road passengers. If a salary be given, there is no “chances.” The driver is the servant of the parties running the mail; the guard is a servant of the public, and therefore he cannot interfere with monies arising from the conveyance; neither can he order the driver to press the horses of one stage, to make up the lost time of another. He carries his time-piece and time-bill, and must faithfully note the time of each contractor at the stage, To misrepresent the run of the horses of one stage, to make up for the deficiency of another stage, is suspension or dismis- sal of the guard. The guard's time-bill can be demanded and examined by a contractor with the government, after the journey; but the former cannot detain the running mail, to Sa- tisfy himself as to duty of the horses, because the public can permit no delay. *-ºsmºssº tºº CHAPTER, XIV. EFFECT OF SERVANTS’ EVIDENCE ON BEHALF OF MASTERS. 327. At one time it was held, that the testimony of menial or domestic servants could not be received, either for their 84 EFFECT OF SERVANTs’ Evid ENCE. master, or their fellow-servants, from the supposed friendship that existed for each other. It was considered, that this in- fluence tended to cramp or restrain that freedom which wit- messes ought to be possessed of, at making oath. Ersk. 4. 2. 25. ; Stair, 4. 43.9. But that narrow view has by modern practice been rejected, on account of the improvement which has taken place in the condition of servants, by the vigorous and equal administration of the law. 2 Hume, 331. Still, however, a servant will be received as a witness under a reservation as to his credibility, where there is reason to sus- pect that he is liable to bias from his situation. Tait on Evid. 380. 328. In occult, or more private facts, where there must, in most cases, be a penury of unexceptionable witnesses, domestic servants are received, and the supposed bias from dependence on their master will be overlooked. Ersk. 4. 2. 26. The principle of this rule went so far as to admit the sister and niece of a pursuer as witnesses, to prove the declarations in the family, and the general repute as to his legitimacy. Bell, 14th April 1819, 2 Mur. Rep. 131. 329. Artificers and labourers hired by the day or week, are deemed competent witnesses for the person who employs them, Ersk. 4. 2, 25, unless they be interested in the issue of the case. Bailey, 20th March 1828, 4 Mur. Rep. 482. Though the artificer may suppose himself interested in the action, if he really is not, there is no disqualification. Britton, 21st March 1826, 4 Mur. Rep. 46. 330. It is of no consequence that the witness himself thinks he has not an interest, provided it is made out that he really has. Accordingly, a clerk who, in his examination in initiall- bus, stated that he did not consider himself to have an interest, although admitting that he was remunerated by a per centage on the profits of his master's business, which might be affect- ed by the verdict, was rejected as a witness for the master. Taylor and Co. v. Forbes and Co. 21st Nov. 1827, 4 Mur. Rep. 373, {ORD IN AIRY SICKN ESS. 85 CHAPTER XV. SICKNESS, MEDICINES, &c. I. ORD INARY SICKN ESS. 1. Wages. 331. A domestic or a farm servant engaged to a precise term, is entitled, says Mr. Erskine, 3. 3. 16. to his full wages, although prevented by sickness, or other inevitable accident, from serving for a part of that time; and this view was enter- tained by Lord Robertson in Mº Lean v. Fuſe, 4th Feb. 1813, on the ground, probably, that menial servants in particular are not hired to do particular quantities of work, like mechanics, within fixed hours, but mustreside in the family,–render gene- ral submission,-and make every exertion in their departments; and therefore masters must be satisfied with the utmost that such servants can do in existing circumstances, and take care of them when in bad health. Tait, voce Servant. But Prof. Bell, in his Principles, s. 180, modifies the text of Erskine, and lays down the law to be, that sickness will excuse non-perform- ance of duty only for a short time. But if the inability should continue long, and a substitute should be required, the master will be discharged from his counter obligation to pay wages. 2 Hutch. 166 : Stair, l. 15. 1. and 2.; Bankt. 1.20. 19 ; Tait, voce Servant. What shall be considered a short time, has not yet been determined. 332. It was decided, on an appeal to the Perth Circuit Court, a few years prior to 1794, that a master was entitled to make a deduction from the wages, where the servant was absent on account of sickness, for quarter of a year; but a servant, disabled by sickness for eleven weeks, was allowed wages for that time, subject to no deduction. White v. Bailie, 29th Nov. 1794, Fac. Coll. and Mor. 10147. In that case, the master pleaded the practice of the county in which he lived, to deduct from the wages, in proportion to the servant’s absence : he admitted that every short period of ab- sence could not be taken into account; but that eleven weeks was too long a period to give wages. On advising a petition 86 SICKNESS, MEDICINES, &c. against the Lord Ordinary's judgment, allowing the wages, one of the Judges doubted the propriety of the interlocutor, and the others wished to have the practice and understanding of farmers ascertained; but it was considered by the Court to be a strong circumstance, that it was not considered neces- sary to have a substitute during the illness; therefore, with- out laying down any general rule, they adhered to the Ordi- mary's judgment. White's case is often quoted; but, at best, it is only a decision on a special case, and no authority fixing any general rule. Tait, voce Servant. Every claim for wages during sickness must depend on its own circumstances. 333. If the servant's sickness has arisen in consequence of being overtasked, wages are due. 334. But if the sickness was begun prior to entering the service, and the servant concealed it from the master, in the hope of being able to profit by and to complete the contract, wages for the time served seem all that can be demanded. 335. Where the indisposition arises through gross negli- gence, it is not that sickness which the law contemplates, and, consequently, wages for the time served is all that can be de- manded; for this reason, that the master is not to be punish- ed for the servant's want of prudent care. 336. Sickness brought on by debauchery or misconduct, warrants a deduction from the wages for the time absent. 3 Esp. 91. In friendly associations, to provide against the ca- sualties of sickness, no aid is ever granted to members where the indisposition flows from such a source. - 337. Feigned sickness, in order to avoid performance of duty, is masked disobedience; the penalty of which is, for- feiture of wages. 2. Board. 338. Where the master is legally bound to support under sickness, the servant may be removed by the medical attem- dant, or by the master, if necessary; but the latter is liable in board. If the servant's relations or friends insist on remov- ing him, the master has the power to object. If no objection be explicitly made, his silence will imply acquiescence and lia- bility. 2 Hutch. 167. - MEDIC INE, - 87 339. If the board required from the master for the servant under sickness, exceed what was agreed to be given under the contract, the excess forms a deduction from the wages. In the English case of Winmal v. Adney, 3 B. and P. 247, Lord Alvanly remarked, that “where the master engages to furnish necessary victuals, it may be argued that necessary victuals may mean such victuals as may suit the state of health or infirmity in which the servant happens to be, as, if a ser- vant be in need of wine or victuals of that description, which are given by way of medicine.” 340. Where the servant resides in family with the master, and the latter withholds sustenance, or refuses assistance to the servant under sickness, it will form a justification for the latter's removal, and render the master liable in board and wages. 2 Hutch. 170 ; Bankt. 1, 2, 55. 3. Medicine. 341. A master is not bound to call in medical aid, or to furnish medicine to a servant in ordinary sickness; but if he does so voluntarily, he cannot retain the charges out of the wages without the servant's consent. Sellon v. Norman, 4 Car. and Pay. 581 ; Mitchell v. Gainer, 23d July 1755, Mur. 11605. If the servant, however, call in a medical attendant different from the one sent by the master, the servant must pay the services so called, unless the master acquiesces. Cooper, 4 Car. and Pay. 581. The master is in no way res- ponsible, where the servant's illness is caused by misconduct or debauchery. Cooper, ut supra ; Simmons v. Wilmot, 3 Esp. 91. 4. Power over Servant in Sickness. 342. As a master has a deep interest in the health of his ser- vant, he can prevent him going abroad, or doing work, the ob- vious or probable consequence of which may render the servant incapable of performing his customary duties. This is parti- cularly the case where there is one servant, because the incon- venience resulting from any temporary incapacity on his or her part is much greater than where there is a plurality of do- mestics. Even supposing that the necessity of the order 88 SICKNESS, MEDICINEs, &c. could be questioned, still it is a lawful command, flowing from laudable motives, in relation to the servant, as well as from motives in which the master is interested. In one case, a fe- male servant was dismissed for not obeying orders, given after medicine had been administered to her. She claimed wages and board. The master, who was a physician, answered, that, owing to her indisposition, he administered very power- ful medicine to her on the Sunday alluded to, and gave her positive orders to remain that day at home, which she diso- beyed. The servant replied, that it was the custom of the country, where there were only one servant in the family, to go to church every other Sunday; and, under the sanction of that practice, she went to church on the Sunday alluded to, which was her “ Sunday out ;” that no serious consequen- ces followed the breach of the orders given to her. The Sheriff of Lanarkshire found, “ that although it was impru- dent on her own account to go to church on the occasion complained of, when she had taken medicine, yet her doing so was not such a fault or offence against her master as to warrant him to inflict the severe punishment of dismissal from his service.” But the Court found, that the dismissal was proper, and assoilzied the master, with expenses. Hamilton v. M'Lean, 9th Dec. 1824, 3 S. D. 379. 5. Indulgence after Sickness. 343. Where a domestic servant, who had been unwell, was allowed to go and reside with a relation in the country, un- til she fairly recovered her health, but with whom she resided only a few days, and then engaged and wrought for eight days as a shearer; Sheriff Barclay held, in an action for dismissal, 1st, that as the servant had abused the liberty granted, and 2d, had contracted with, and served another party, during the currency of her engagement, the mistress was justified in re- fusing to take her home : neither board nor wages were found due. Kinnear, 1836, (Perth Court.) 344. It not unfrequently happens, that servants who are allowed to go home on account of indisposition, betake themselves after recovery to light work, under the plea, that their former labour was too heavy, and then claim WAGES AND BOARD. 89 wages for the service given to the former master. But Sheriff Barclay held, 1st, That no servant, during the currency of a contract, can engage to serve another master ; 2d, That in justice the servant is bound, on recovery, to re- turn and offer to the master the labour, such as he can give, which permits the option of declining or of accepting; 3d, If declined, a court of law may then be appealed to, for the value of the labour given ; 4th, Until such offer be made to the master, the servant is not in a proper situation to sue ; 5th, In suing for the wages, a medical certificate of the ser- vant's present state of health, and the nature of the pastillness, must be produced, to satisfy the court, before judging; and 6th, The certificate of a farrier or quack is not proper medical evidence. (Perth Court, 1837.) II. IN J U R Y IN THE PERFORMANCE OF D UTIES. 6. Wages and Board. 345. Inability from hurts received in the master's employ will excuse the servant's non-performance, without forfeiting his wages; Bell's Prin. s. 180; and probably longer, if the effects of the accident still unfit him for service. Blair, 304. But the hurt must have arisen from no want of care or pru- dence on the part of the servant. A party who engaged to lead a stallion through the country, received in the course of the journey a kick from a mare, which laid him aside for six months; he claimed full wages, and also board, at the rate of 5s. per week. As the accident was proved to have arisen from no improper or incautious conduct on his part, the wa- ges were allowed; but Sheriff Barclay found, “that although it was not libelled to be part of the bargain of parties, that the master should board the servant in his house during the engage- ment, yet the claim would have been sustained had it appear- ed that the servant was removed from his master's house against his will, but as it had been proved that he left the house of his own accord, or by advice of his friends, without making any demand or stipulation for board, dismissed that claim.” 5th March 1825, Cooper, 3 S. D. 619. This judg- ment was affirmed by Sheriff M*Neill, M*Allan v. Christie, July 1831, (Dunblane Court.) 90 SICKNESS, MEDICINEs, &c. 346. If a servant receives a hurt in performance of his duties, he cannot. leave, without the master's consent, nor refuse to perform light work, which cannot aggravate the in- jury. A female servant, who had her ancle dislocated by a fall from an insufficient ladder leading to the bothie, left the service without permission, and brought an action for wages and board. The master proved, 1st, that he offered to main- tain her in his own house, and that she refused to stay; 2d, that the accident did not preclude her from doing light work, such as knitting and sewing, which might have been worth 2s. per week to his family; and 3d, that she was not confined at her father's house the whole period of the engagement. As the injury was proved to have been received in the perfor- mance of her duty, Sheriff Barclay found full wages due, under deduction of what she might have earned to her mas- ter had she remained in his family, which was restricted of consent to 1s. per week; but the claim of board was disallow- ed. (Paterson 1837, Perth Court.) 7. Medical attendance and Medicines. 347. A master is bound to pay for medical attendance on a servant injured in the performance of his duties. A servant so injured, claimed £4, 18s. 8d. for surgical attendance. The master in defence pleaded, 1st, That the servant had pre- vented the cure of his limb by departing from the instruc- tions of his medical adviser, by strapping it too tight; 2d, That as he, the master, did not employ the surgeon, he was not liable; and 3d, That it was the practice of the district in which he resided for farm-servants to pay such accounts themselves. Sheriff Barclay found it sufficiently proved that, in ordinary cases of sickness, it was not the practice of the district for masters to pay the surgeon's accounts for at- tendance on their servants; but found, that the master was bound at law to defray the expense of Surgical attendance, directly connected with the injury received by his servant, in the due and regular performance of his master's orders and service ; and decermed for the amount, but without interest, in respect that the same had not been paid to the surgeon, and under the condition that receipts be put into process for * T} EATH OF SERVANT. 9 ; the same before extract. Mº Allan v. Christie, 20th July 1834, affirmed on appeal by Sheriff M*Neill, (Dumblane Sh. Court.) See 345. It has been found in England, that a master is liable for surgical attendance on a servant, in illness brought on by the service. Cooper v. Philips, 4 C. and P. 581, M.A.’s Ersk. 3. 3. 16. The English deci- sions, however, are not uniform on this special point, which may arise from the operation of the law regulating the set- tlement of paupers. 8. Death of Servant. 348. If a domestic servant die during the engagement, wages are due up to the day he served, and go to his execu- tors. 2 Hutch. 166. 349. Where the wages are insufficient to defray the funeral expenses, and the relations are unknown, or unable to pay them, the parish where the party dies must defray the ex- pense in the first instance, and look for repayment from the parish to which the servant legally belonged. In that case, the parish paying is entitled to draw the wages due, and to have delivery of the deceased's moveable property. 350. But if the master defray the funeral expenses, and the wages due be not sufficient to reimburse him, he can ap- ply to the commissary of the district for a warrant to have the deceased's clothes and other effects valued, and sold. In that application, the nature of the contract, and the amount of wages due to the deceased, must be stated, and a warrant to serve a copy of the application on the servant's nearest of kin will be given. If they, after citation, fail to appear, another warrant to value and sell, after due advertisement, will be granted. The sale proceeds under the inspection of an offi- cer of Court, who must report it to the commissary. There- after, a third warrant is granted to pay, out of the wages due and the proceeds of the sale, the funeral charges, the medi- cines furnished on death-bed, if claimed, and the expenses of the application and sale. The balance, if any, falls to be re- tained by the clerk of Court, till applied for by the executor. See Drummond's Form of Process. 351. If the wages be equal to the funeral charges, then the 92 SICKNESS, MEDICINEs, &c. 3: servant's moveable property must be carefully kept till claimed. But if this should prove to be an inconvenience, warrant to remove, or to value and sell the property, must be applied for. The procedure differs slightly from that stated in the preced- ing section. - 352. Where the servant has died of an infectious disease, the clothes worn during the illness may, on the direction and authority of the medical attendant, be lawfully destroyed; for it would be against every salutary rule to permit such poi- Somous articles to find circulation. III. WOR.K.M.E.N. 353. Where workmen or labourers, engaged from week to week, are laid aside from hurts sustained while em- ployed in their master's duties, the wages for the week are due, although the party may have wrought only one day. The same rule applies to all workmen, whether the engagement be for a longer or a shorter period. A plumber, who was en- gaged for a twelvemonth, and who lost his eye in the execu- tion of his duties, was allowed wages during the whole period of illness. (Perth Sh. Court.) See Blair, 304. 354. It does not appear, that workmen engaged by the year or half year, when overtaken by ordinary sickness, are entitled to wages, possibly from the extensive operations of trade clubs, or associations for the purpose of mutual insur- ance against the casualties of sickness or mortality. 355. If a workman engaged for a specified period fall sick, and return to his work after recovery, the master must receive him back, as he left it, not from will, but from bodily suffering. If he does not return, and the master does not in- quire after him, nor ask him to come back, the engagement will be presumed at an end. See 121. 356. The time a workmen may be laid aside, by sickness or hurts in his master's service, cannot be counted against him in a contract obliging him to serve two days for every one he is absent, or to pay a fixed sum for each day's absence, because such contingencies are not presumed to form part of the calculation of parties; the days meant being only those on which the party shall necessarily absent himself. D OMESTIC SERVANTS. 93 IV. C.L.E.R.K.S. 357. It has not been decided that clerks are entitled to their salary during ordinary sickness, however short the pe- riod. 358. If the illness, however, has been brought on by over- exertions to promote the interest of the master, the salary, during the period of sickness, is in justice payable; because, had the exertions not been made, it may be presumed that there would have been no interruption in the attendance. 359. Where co-clerks undertake, from friendship, to per- form the duties of one of their number under sickness, until he recovers, and where they faithfully discharge the duties, no abatement from the salary can be made by the master; because the duty has been performed, and no loss has been sustained by the absence. 360. But if the duties have, in the interim, been discharged by a third party, on no such friendly footing, a corresponding abatement may be made from the salary. 361. If the party under sickness is unable to return, wages are due for the time he has served. See 121. *º-sº CHAPTER XVI. WAGES. 1. Domestic Servants. 362. The wages, or fee, as it is expressed in Scotland, is the price of the servant's labour, but it is not payable until the completion of the contract. In paying half-yearly or yearly servants, it is proper to take a regular receipt, to save after inconvenience. In the absence of an acknowledgment, where there is a written bargain, the fact that payment was made is left dependent upon the oath of party. 4 C. and P. 81. 363. A sum given to a servant for subsistence is, strictly speaking, not wages but board, though generally called “board wages.” Bell's Prin. s. 178. 94 WAGES. 364. Anciently wages were not allowed to servants, unless proved to have been part of the contract. Master of Saltoun, 13th Feb. 1680, 3 Br. Supp. 337 ; Watson v. Rose, 3d July 1781, Elchies' Dec. voce Presumption, 12. But it is now fixed, that where service is given, its value must be returned in wages, even where the amount is not fixed, either before or sub- sequent to leaving the service. M*Naughton v. M'Naughton, 1st July 1813, Hume's Dec. 396; Shepherd v. Meldrum, 23d June 1812, Hume's Dec. 394; Smelliev. Miller, 17th Nov. 1835, Jurist ; also Smellie's other cases, 23d Feb. 1835, and 23d Feb. 1833; Bishop v. Chisholm, 16th June 1820, Fac. Coll. : Nairne, 1st July 1712, Mor. 4051-4062; Donaldson v. Ewan, 11th Jan. 1821, 2 Mur. Itep. 406; Wallace, 13th June 1821, Sh. Ap. Cases, 42. The same holds in England. I Ch. Blacks. 428. This rule, however, is liable to the follow- ing exceptions:— 1. The service of relations, as stated in Chapter V. 2. Waiters, chambermaids, and boots, in hotels, &c. stated in branch 4 of Chapter XIII. 3. Service on trial does not produce wages, because it is merely proving the servant’s qualifications to fill the situa- tion. Accordingly, where the party went on trial, and where the wages were left to the master, and service given for some time, but no application made to have them fixed by the master, it was found that no action lay against the latter for payment. Owen v. Bowen, 4 C. and P. 93. In Scotland, servants taken on trial are not allowed wages; but in gene- ral, the master gives the worth of the labour. Taking on trial, implies an obligation more or less on the master to in- Struct. - 4. If a servant comes from the West Indies, where he has been a slave, and continues in the service of his master in England without any agreement for wages, he is not en- titled to any, unless there has been an express promise to pay wages. Alfred v. Fitzjames, 3 Esp. 3. Slavery is now abolished in the British colonies, by 3 and 4 Will. IV. c. 73. A slave coming to England with his master or mistress, from a country where slavery is authorized, is not emancipated by DOM ESTIC SERVANTS. 95 residence in Britain ; but no coercion can be exercised over the slave while here. So decided in England. 365. An action for wages cannot be maintained where the act performed is illegal; for instance, as a retainer to run an illegal race, although it has been performed ; Coates, 3; Stark, 61 ; or to do a fraudulent act, although it be skilfully performed, and the master be thereby benefited. Paley, 8. 102. 366. An agreement, on the part of a servant, to leave his service on payment of wages, is held to mean money wages only; board wages is not understood. Cooper, 5th March 1825, 3 S. D. 619. 367. As the increase of a master's business in the case of a clerk, does not legally draw an increase of salary, neither does an increase in the family entitle a domestic servant to claim additional wages. See 240. 368. Punctual payment of wages must be made to the ser- want at the terms stipulated by the engagement, otherwise he may use means to recover payment ; he may also leave the ser- vice, though hired for a longer period. Tait, voce Servant. Where the servant's wages have been arrested, a proportional part must be given, to enable him to fulfil his contract. See Chap. XX. 369. Though the engagement of a domestic servant be for a year, the wages are payable half-yearly, as the servant is not supposed to get credit beyond that time, or to have funds sufficient to last longer. Tait, ut supra. The wages of ru- ral servants are paid either half-yearly or yearly, but this is regulated by usage. Bell's. Prin. s. 185. 370. Interest is due on wages, payable at a specific term. Earl of Mansfield, 18th February 1832, Sh. App. Cas. But if the wages be not fixed, interest will only run from the date of the decree ascertaining the amount. Wallace, 13th June 1821, 1 Sh. App. Cas. 37 l. Where it is agreed by the master to give a sum to his servant in addition to wages, as an encouragement to assi- duity, the engagement is held to be renewed in all its parts by tacit consent from year to year. Earl of Mansfield, 21st June 1831, 9 S. D. 780; Feb. 1832, Sh. App. Cas. 372. The act 1 and 2 William IV. c. 37, which obliges mas- 96 WAGES. ters to pay the wages of workmen in the current coin of the realm, and not in goods, does not apply to masters of do- mestic or farm servants. But although they be exempted, the law will not justify their giving money to servants from time to time, knowing that it will be abused; or in furnishing goods to servants not fitting their station, in part payment of wages; or in any way in encouraging a useless expenditure of their earnings. 373. Payments made to account of wages during the currency of an engagement, for the purchase of necessa- ries to the servant which cannot be avoided, are valid pay- ments. Hedgley v. Holt, 4 C. and P. 104. 374. But where the payments are advanced to a servant under age, to purchase dress and trinkets, not fitting to her station, such payments cannot be deducted from the wages, even although the master take a written acknowledgment that the wages have been fully paid. Hedgley, ut supra. Justice Bayley remarked, “that the consequence would be very injurious if the law were otherwise. What would it lead to ? At the end of her servitude, she would not have a farthing in her pocket. Household servants have bed and board; the wages supply clothing; to encourage the misapplication of that fund is a wrong.” 375. Money paid by a master for coach fares for the mo– ther of his maid-servant, under age, cannot be deducted from the wages. Hedgley, ut supra. 376. Where a master voluntarily calls in medical atten- dance, and furnishes medicine. See 341. 377. A domestic servant was held to be an omerous indor- see, who charged the accepter of a bill for payment, and de- poned, on a reference to oath, that it had been drawn and in- dorsed by her master to her, and accepted of, as in part pay- ment of her wages. Hunter, 2d March 1831, 9 S. D. B. 524. 378. Where a servant enlists, the master is obliged by the Mutiny Act to give wages for the time served; but the mas- ter need not pay until the servant has been attested, and evi- dence of the attestation produced. The attesting Justice has power, on hearing parties, to adjudge payment of the wages DOMESTIC SERVANTS. 97. within four days; and in case of neglect or refusal, to grant war- rant to levy the same by distress and sale. See Annual Mu- tiny Act. In the case of farm-servants, Justices, in deciding the amount of wages due, ought to take into account the work per- formed prior to the enlistment. For example, as the spring and harvest are the heaviest portions of the servant’s work, it would be unjust, were he to enlist at the termination of the spring labour, to give wages in proportion to the number of months he had served, without taking into account the na- ture of the work performed. 379. Enrolment in the local militia does not vacate, res- cind, or alter the contract of a servant hired by the year or otherwise, unless the militia be embodied, or called out by the crown, for the purpose of being trained and exercised, in pur- suance of the 52 Geo. # II. c. 68. At the end of the train- ing the servant must return within a reasonable time, and allow an abatement from his wages for the time absent from his service. Disputes in reference to the proportion of wages for the services performed, or for the time absent, may be settled by a Justice, if not exceeding £20, who is empowered to grant warrant for levying the wages found due by distress and sale. 52 Geo. III. c. 68. § 60. 380. The practice which some masters and mistresses have adopted, of deducting from the wages the value of articles broken or injured by their servants, is wrong, unless it can be shewn that the damage arose through the servant's wilful or culpable negligence. * 381. Servants are not answerable for any loss or injury that may happen to the employer's property, from unavoidable ac- cidents, arising from no want of care, or of faithfulness on their part. I Ch. Blacks., 428, Le Loir v. Briston, 4 Camp. 134. 382. How far a contract with a domestic servant to supply all articles injured or broken during her engagement would be sustained, where no additional sum is added to the wages to cover the risk, has often been questioned. It is thought, however, that it would not be sustained, because, 1st, In a contract of risk a premium must be paid ; 2d, Wages are ali- mentary, and cannot be made the fund of so unequal a spe- culation, without exposing the servant to privation; and, 3d, 98 WAGES. The law has already provided rules, regulating the loss, where it arises through the wilful or the innocent acts of a Servant. - 383. Upper servants in large establishments, such as a house-keeper, or butler in a gentleman's family, or a waiter, or chambermaid in a hotel, must account from time to time for the property placed under their charge. Any deficiency, unless it arises from tear and wear, or by an unforeseen acci- dent, must be replaced, and, until it be done, the wages may be retained. 384. Deducting from wages the tax of an assessed servant, is not allowable. See 478. 2. Master's Insolvency. 385. It has not been decided by the Court of Session, that the wages of a domestic or menial servant are preferable to the landlord’s hypothec. 3 More's Stair, 362. In practice, the preference is not recognised. Sheriff Husband held the wages of the household servants in a gentleman’s family, not preferable to the landlord’s hypothec ; and Sheriff Barclay found, in the same case, that the gardener and under gardener were only preferable on the fruit reared by their industry, and sold by the landlord. These decisions were affirmed, on ap- peal, by the Sheriff-depute. (Marquis of Breadalbane v. Longford, Perth Court.) See 390. 386. The wages of a household servant is not preferable to a creditor, who executes a partial poinding of the master's effects. To admit the servant's claim to a preference, there must be an attachment of the whole effects, so as to create a bankruptcy. In one case involving the point, Sheriff Tait found, “that though the claim of a domestic servant was pre- ferable in a ranking of the creditors of a bankrupt ; or, in a ranking upon executory funds; or, in other situations, where there was an ordinary competition of creditors, whose debts were in the same situation in point of diligence ; and although a farm servant was preferable, even to the landlord’s right of hypothec, for the wages of his labour, which produced the sub- ject of the hypothee, yet no such personal creditor, as a do- gnestic servant, is entitled to compete with a creditor who had BAN KRUPTCY OF MIASTER, 99 attached the effects by a real diligence of poinding, except in so far as such creditor may be entitled to rank pari passu, * with the poinder, in terms of the provision of the bankrupt act.” The servant's claim was therefore dismissed. Kay v. Anderson, 7th January, 1833. (Edinburgh Court.) 3. Bankruptcy of Master. 387. Domestic servants have a preference for the current or half year's wages, according to their agreement, on the bankruptcy of the master. Crawford v. Hutton, 25th Nov. 1680, Mor. 11,832, Blair, 302. But not for arrears. 2 Hutch. 170. 388. The current wages of farm servants are preferable to creditors, or to arresters. Act of Sederunt, 23d January 1779; Melvin, 23d Jan. 1779, Mor. 11,853. And to the land- lord’s hypothec. M Glashan, 29th June 1819, Fac. Coll. If the landlord were to sequestrate his tenant's crop, and other ef. fects, and thereafter, by agreement, to enter into the management of the farm, and employ the servants, they are entitled to their wages up to the term of their engagement, notwithstanding of their acquiescence under the landlord. The same rule applies where there is a judicial factor. Some would affirm, that the servants may leave where the master is so changed, and that they are entitled to their wages for the services performed. But it is thought that they could not leave, where the terms of their con- tract are unaltered, because the engagement relates not to per- sonal service, as a domestic servant, but exclusively to local work. (See 246, branch 3.) Their engagement can only be com- pleted with the round of the year; and if they could so leave, the crop might often be left exposed to hurt. Besides, the law has anticipated every position of the master, by giving a preference for the wages. I Bell on Leases, 192. 389. Reapers hired by the day or week during the harvest, or other occasional labourers employed in raising and securing the crop, are also privileged for their wages. The Court were of opi- nion, that the Act of Sederunt, ut supra, was intended to give a preference for the wages over the crop raised or secured by their labours, to all persons employed as farm servants, how- ever short the period of their service, and that the principle 1 () () WAGES. # upon which it was founded applied equally to them all. Lockhart, 14th Nov. 1804, Fae. Coll. Professor Bell says, “The principle here assumed is not, with great deference, the true principle of this privilege, otherwise it would go beyond the term in many cases, and would extend to manufacturers and artifieers, which it does not. 1 Bell's Illust. 447. See EIumter, 713-14. 390. A person engaged as a gardener, and occasionally em- ployed as a farm servant, was found to have a preferable claim for a balance of wages, and for board, on the seques- trated estate of his master. The Court held him privileged in this special case, not meaning to decide a question admitted to be difficult, whether a gardener is to be ranked with domes- tic or farm servants, and to be held as within the privilege. Mº Lean v. Sherriff, 21st Jan. 1832, 10 S. D. 217, Jurist. See 385. 391. The minister's man is held to be a domestic servant, from his being called on to perform to his master all sort of work. Mº Lean v. Sherriff, ut supra. 392. Artizans working on a farm, as Smiths, mill-wrights, and the like, who are engaged at a fixed salary, by the year or term, are not preferable creditors in the case of the mas- ter's bankruptcy, although they are engaged specially to work on the farm, because they are not considered in the light of servants in husbandry. Fulton, 7th Feb. 1792, White v. Christie, 31st January 1781, Morr. 11,853. But if a farm be managed by a trustee, for behoof of the master's creditors, such servant will be entitled to payment for his ser- vices subsequent to the bankruptcy, on the ground that they were rendered to the estate and to the creditors. Maiben V. Perkins & Miller, 3d June 1837, Jurist. 4. Where the Master Dies. 393. If the master die during the currency of the term, full wages and board are due to a domestic servant, if not retain- ed by the heir or executor till the issue of the engagement, The party charged with this expense is entitled to have the service, if asked ; for as he represents the master in the obliga- tion to pay, he also does so in the right to possess the service. WHERE THE MASTER DIES, 1 () i But if the service be refused to the executor, he or she will not be entitled to wages beyond the time served. Where the service is given, the contract must be strictly observed. The executor cannot, legally, compel the servant to follow him to another county, and enter his family, where the duties are more laborious, or different from the original contract. Tait, voce Servant. - 394. If the death happens within forty days of the term, then the servant's claim enlarges, and he or she will be entit- led to board down to the second term, unless another situation be sooner obtained. Tait, ut supra. 395. If the engagement be for one year or longer, and the master die during the currency of the first half year, the ser- vant will be held as acting in bad faith, if he does not look out for another situation; nor will he be entitled to demand more than the first half-year's wages and board, unless there were sufficient time for that purpose. 2 Hutch. 166; Ersk. 3. 16. 133. 396. Where the family make no alteration in the establish- ment after the master's death, the servants are entitled to re- main till regular warning be given to quit the service. Finlay- son, 8th July 1829, S. D. B. 397. If the servant be engaged with power to leave on giv- ing a month's notice, or on payment of a month's wages, then on the death of the master one month's wages and board are payable, if the services be not continued. 398. On the death of the master, the wages are preferable on the executory funds, although the term be not arrived. Crawford, 20th Nov. 1680, Mor. 11,832. And they are so far privileged, that they may be paid before confirmation, or before the dissolution of the family, which will free the exe- cutor. Neish v. Masterton, 24th Nov. 1675, Mor. 11,829; Cairns v. Cairns, 28th Decem. 1692, 4 Br. Supp. 35. They may be paid upon a simple receipt. Littlejohn v. Little- john, Feb. 1683, Mor. 3858. Even after confirmation, the executory may be arrested for the wages due by the deceas- ed. Swaine, 8th June 1822, 1 S. D. 479. 399. Arrear of wages is not a privileged debt. Neish, 24th Nov. 1675, ut supra. - } 02 WAGES. 5. Recovery of Wages. 400. Domestic servants can only sue for payment of their wages by an ordinary action ; for the claim is not of such a pressing nature to admit of summary procedure ; so found in the case of a discharged servant, for wages and board. Rit- chie v. Radley, 17th Dec. 1830, 9 S. D. 223. - 401. If the wages be under £8, 6s. 8d. they may be re- covered under the Sheriff’s Small Debt Act. 402. Where the servant is a pupil, he must bring the ac- tion with concurrence of his administrator in law, or his tu- tor. If he has neither, the action may be brought in his own name ; but after it comes into Court, a tutor ad litem must be appointed, with whose concurrence the case then proceeds. It is no objection that the summons was raised and executed in the pupil’s name alone, and before any tutor had been ap- pointed. Keith v. Archer, 24th Nov. 1836, Jurist. 403. An action was sustained, brought at the instance of a boy of ten years of age, with concurrence of his father as ad- ministrator-in-law, which concluded for payment to the pupil directly, instead of concluding in the ordinary form, where a pupil and his administrator were pursuers. The Lord Ordi- mary thought that the expenses should admit of a small modi- fication, to mark that the Court did not approve of the manner in which the summons was framed ; but the Court, on consi- dering the merits of the ease, allowed full expenses. Keith v. Archer, ut supra. 404. An action cannot be brought against a widow, on a promise made by her during marriage, to pay wages for ser- vices then performed, because, although she was the mother of the family, she cannot be convened on a promise made dur- ing her husband's lifetime. Countess of Moray, 24th June 1648, Dec. of the English Judges, 1655. 1661. See Ro- bertson v. Haldane, 22d May 1801, Hume's Dec. 208. 405. Where the master is dead, the action for wages, or arrears of wages, must be brought against his representatives. Ritchie v. Little, 15th January 1836, Jurist. 406. An action for wages against a company was dismiss- ed, where it was served on one of the partners personally, RECOVERY OF WAGES. i 03. who died shortly after, instead of citing the company at their place of business, and the partners at their respective dwell- ing-places. Wordie v. M. Donald, 15th Dec. 1831, 10 S. JD. B. 142. 407. Where the servant has been improperly dismissed “ between terms,” and at the term when their engagement ought to have terminated, sues the master for wages and board, the servant must set forth in the action what sums he had gained by occasional labour, from the date of dismissal. Puncheon, 17th Nov. 1790, Mor. 13,990. But if he sues the master between terms, the probable chance of future em- ployment may be taken into account in awarding reparation to the servant, or, decree may be given for the amount of wages and board, to be drawn by instalments, either weekly or monthly, till employed. See 195, 217-219, 234. -- 408. If a defence be made and proved, that the servant, after dismissal, was offered a situation equally as good as the one discharged from, and refused it ; or, that he was or might have been usefully employed after leaving his service; the Court will give weight to the defence, in judging of the ser- vant’s claim. See Rae v. Leith Glass House, 20th June 1750, Kilk. reparation, 8. See 219. 409. It is not incompetent in a defence to prove, by parole evidence, that the rate of payment in a mutual contract constituted by writing, was subsequently altered or modified by a verbal argument. Thomson, 2d Feb. 1836, Jurist. 410. An illegal contract cannot be founded on by a party, after having waived it by his own acts. In an action by A. against B. for work and labour, it was proved that malt had been sold by B. to A. by an illegal measure, but that, after the sale, an account was stated and settled between the parties, shewing a balance due to B., which was signed by A. Held that B. was entitled to set off his demands for the malt, the settlement being equivalent to payment. Owen v. Denton, 1 C. M. and R. 711. 411. The remedies left for recovery of wages under £8, 6s. 8d. are arrestment and poinding, which in many in- stances must prove useless. It has been doubted whether wages do not fall within the meaning of the word, “ aliment,” 104 WAGES. which is an exception to the liberty extended by the non-im- prisonment Act, 6 and 7 Will. IV. c. 70. But considering that domestic servants are not preferable with a poinding creditor, where the master is not a bankrupt, (see 368.) and where solvent, that wages can only be sued by an ordi- nary and not by a summary action, (see 400,) and also that procedure for workmen's wages under 4 Geo. IV. c. 34, does not allow imprisonment, where there are no goods to distress, (5 Ch. Burns, 542,) it does seem that the legislature meant not to include wages under the word “aliment,” which, strictly speaking, applies to that duty incumbent on parents and chil- dren to support each other, when, from helplessness, or any other cause, either of them cannot maintain themselves. Wages are held by law to be alimentary, only to prevent them from being wholly carried off by arrestment for debt, for this reason, that the servant may be preserved from desti- tution of food and clothing, and induced to act prudently with his earnings. To attain the latter end, the creditors' means of enforcing payment are to that extent curtailed. 412. An overseer hiring farm servants is not personally li- able for their wages. Nabonie v. Scott, 2d Feb. 1815, Hume’s Dec. 353. Nor for their negligence. See 25. 413. Farm servants may proceed against a master by an ordinary action, for payment of wages ; or he may apply summarily to a Justice, under 4 Geo. IV. c. 34, s. 5. ; and re- cover payment by distress and sale. Domestic servants can- not recover under that statute. Kitchen v. Shaw, 1 N. and P. 791; 7 B. and C. 96.536. 414. By the 4 Geo. IV. c. 34, s. 4, it is declared, that if the master resides at a considerable distance from his farm, or is occasionally absent for long periods of time, leaving his business to be managed by another person, any servant in husbandry, if the wages do not exceed £10, may apply to a Justice of the county, or place where he was employed, who is directed to summon the manager to appear on a given day. If the Justice, after hearing parties, be satisfied that the wages are due, he is empowered to order payment within twenty-one days; and in case of non-compliance, to grant CLERKs, &c. 105 warrant to recover the wages and expenses out of the master's goods by distress and sale. 415. By the statute 1503, c. 98, “the oxen, horses, or other goods pertaining to the plough, and that labour the ground, cannot be poinded the time of labouring the same, where any other goods or lands are to be apprised or poinded.” This statute is still in observance. Arnot v. Greig, 21st Feb. 1712, Mor. 10,527; Lord Advocate v. Forgan, App. to Fac. Coll. 1810-12, p. 1. 6. Clerks, &c. 416. In the case of clerks, &c. the salary or rate of wages is fixed by the contract, or by the ordinary rules of such labour, or by the usage of the profession to which the parties belong, or quantum meruit. Stewart, 2d Feb. 1831, 9 S. D. 382, and 2 Sh. App. Cas. 66, 17th June 1835 ; Sinclair, 22d Feb. 1831, 9 S. D. 487. º 417. An agent employed in the management of an illegal contract, cannot recover any compensation for his labour from the person at whose request it was performed, and who had the benefit of it. Paley, 102. 418. Where a party undertook a business without autho- rity or stipulation for reward, the difficulty of ascertaining the precise wages he was entitled to, owing to his own con- duct in keeping no account, was deemed a sufficient reason for disallowing the claim altogether. Paley, 104. 419. An increase of the master's business will not give an increase of salary, unless it be so stipulated. Bell v. Drum- 7mond, Peake, 45. 420. But where the party undertakes to discharge the duties of two separate departments, he is entitled to an in- creased salary. Accordingly, the charges of a professional agent were allowed to the clerk of a public board who was not a legal practitioner, no law-agent having been employed to perform the duties, and the clerk's acting in that capacity having saved such expense to his employers. Ewing, 19th Jan. and 14th Feb. 1837, Jurist. 42}. For interest on salary, fixed and unfixed,—see 370. 422. An assistant surgeon brought an action for wages, 106 WAGES. wherein it was proved that he had served the defendant for nearly a year, had fallen ill,—recovered,—but did not re- turn, nor did the defendant require him to do so; that pay- ments were made on account of wages, but not according to any yearly amount, or at any definite periods of the year. It was accordingly held, that there was no hiring for a year, and that the plaintiff was entitled only to recover wages quantum meruit for the time he served. Bayley v. Remmell, 1 M. and W. 506. * 423. After a general hiring at a yearly salary payment, and acceptance of the salary by quarterly payments, if of any continuance, is evidence of a subsequent contract to pay and receive quarterly. Ridgway v. Hungerford Market Co. 4 N. and M. 797. 424. Travellers for mercantile houses have, independent of salary, an allowance made them to cover their travelling expenses. If the allowance be exceeded, they must pay the excess themselves. The employer is, therefore, not respon- sible for entertainment, &c. contracted on journies. Were an opposite rule to be held, masters might be exposed to ficti- tious or latent claims from different quarters, on the decease or dismissal of a traveller. So decided by Sheriff Husband, Usher v. Finlayson, 1833. (Perth Sh. Court.) 7. Master's Bankruptcy. 425. Clerks &c. on their master's bankruptcy, must rank as ordinary creditors for the salary or wages due to them; and for such damage as they can instruct, if the engagement be for a period of years, Ridley, 3d Feb. 1789, Mor: 11,854; Puncheon, 17th Nov. 1790 ; Marshall, 12th Feb. 1828, 6 S. D. 515 ; 2 Bell’s Com. 157. - 426. The trustee cannot make payments to the clerk of a bankrupt for services rendered prior to the master's sequestra- tion, even with the consent of the commissioners, as the clerk in that way would obtain a preference over the other credi- tors; but the trustee will be allowed to credit himself with payments made to the clerk for services rendered subsequent to the bankruptcy, on the ground, that these were rendered ARTIFICERs, &c. i07 to the bankrupt estate, and to the creditors themselves. Mai- ben v. Perkins & Miller, 3d June 1837, Jurist. 427. By the 6 Geo. IV. c. 16, a clerk may be allowed six months’ salary on the bankruptcy of his master, but for the balance he must rank as an ordinary creditor. This very excellent statutory rule unfortunately is confined to England. It is worthy of consideration, whether this rule ought not be extended to Scotland: many substantial reasons plead for an extension. * 8. Artificers, &c. 428. So much of the Act 1617, c. 8, and 1661, c. 38, em- powering Justices to compel servants and day labourers to serve for a reasonable hire, under the pain of imprisonment, and any other statute in force in Scotland which authorizes and empowers Justices or Magistrates of cities and burghs to rate wages or fix the prices of work for artificers, labourers, and craftsmen, are repealed by the 53 Geo. III. c. 40. The jurisdiction of the Justices, however, in questions between masters and servants arising out of voluntary contracts, still remain unaltered. M'Lellan and Son v. Gentle, 9th July 1825, Erskine I. 4. 13. and I. 7. 61. 429. Every man has a right to work for the best price he can get, but, if others choose to work for less than the usual prices, the law does not permit that violence should be com- mitted towards them, or towards those by whom they are em- ployed, or those with whom they are connected. Rea, v. Batt, 6 C. and P. 329. 430. By the act 1 and 2 William IV. c. 37, sec. 19, all artificers, workmen, labourers, or other persons employed,— 1. In or about the making, casting, converting, or manu- facturing of iron or steel, or any parts, branches, or processes thereof. 2. In or about the working or getting of any mines of coal, ironstone, limestone, or salt rock. 3. In or about the working or getting of stone, slate, or clay. - 4. In the making or preparing of salt, bricks, tiles, or quarries. 108 WAGES. 5. In or about the making or manufacturing of any kind of nails, chains, rivets, anvils, vices, spades, shovels, screws, keys, locks, bolts, hinges, or any other articles or hardwares made of iron or steel, or of iron and steel combined, or of any plated articles of cutlery, or of any goods or wares made of brass, tin, lead, pewter, or other metal, or of any japamned goods or ware whatsoever. 6. In or about the making, spinning, throwing, twisting, doubling, winding, weaving, combing, knitting, bleaching, dyeing, printing, or otherwise preparing of any kinds of wool- len, worsted, yarn, stuff, Jersey, linen, fustian, cloth, serge, cotton, leather, fur, hemp, flax, mohair or silk manufactures, whatsoever; OT, . in or about any manufactures whatsoever, made of the last mentioned materials, whether the same be or be not mixed one with another. 7. In or about the making, or otherwise preparing, orna- menting, or finishing of any glass, porcelain, China, or earthen- ware whatsoever, or any parts, or branches, or processes thereof, or any materials used in any of such last mentioned trades or employments. 8. In or about the making or preparing of bone, thread, silk or cottom lace, or of lace made of any mixed materials, Must be paid their wages in the current coin of the realm. They may be paid in bank notes, if consented to by the work- man, provided the notes be either of the bank of England, or a banker duly licensed, whose place of business is within fifteen miles of the place where the note or notes are so paid. 431. It is illegal for an employer to pay the wages in goods, either in whole or in part; neither can he sue the workman for their value; nor can he set off such a claim by way of de- fence to any action brought by the workman for payment of his wages. It is of no importance by whom the goods are furnished to the workman, if it shall appear that the employer is interested in the profits of the person, or the company fur- mishing the goods. Monteath & Co. 2d Feb. 1827, 5 S D. 290. ARTIFICERS, &c. 109 432. Any employer may contract with his workmen to fur- mish the following articles, and deduct the amount from their wages, provided the employer shall not exact more than the real and true value of the articles. This contract must be in writing, and subscribed by the workman. See 23. 1. Medicine, or medical attendance. 2. Fuel, or any materials, tools, or implements, to be by such workman employed in his trade or occupation, if such workman be employed in mining. - 3. Hay, corn, or other provender, to be consumed by any horse, or other beast of burden, employed by any such work- man in his trade or occupation. 4. To supply any victuals dressed or prepared under the roof of the employer, and there consumed by the artificer. And, 5. It does not prohibit the master from demising or letting to any artificer, workman, or labourer employed in any of the trades or occupations enumerated in the Act, the whole or any part of any tenement, at any rent, to be therein reserved. 433. The Act further allows employers to advance money to any artificer for the following purposes, and to deduct the amount of their wages, provided the agreement to do so be reduced to writing and subscribed by the workman receiving such advance. 1. Money to be by him contributed to any friendly society, or bank for savings, established according to law. 2. Sums for his relief in sickness; and, 3. For the education of his family. Advances to a workman for other purposes cannot be re- tained out of his wages. - 434. The more effectually to secure the full operation of the statute, it is declared by the 25th section, 1. That all persons in any way engaged in the performance of the several trades and occupations aforesaid, shall be, and be deemed “artificers.” 2. That all masters, bailiffs, foremen, managers, clerks, and other persons engaged in the hiring, employment, or super- intendence of the labour of any such artificer, shall be, and be deemed “employers.” # 10 WAGES, 3. That any money or other thing to be paid, delivered, or given as a recompense, reward, or remuneration, for any la- bour done, or to be done, whether within a certain time, or to a certain amount, or for a time, or an amount uncertain, shall be, and be deemed “wages.” 4. That any agreement, understanding, device, contrivance, collusion, or arrangement whatsoever as to wages, whether written or oral, direct or indirect, to which the employer or artificer are assenting parties, or by which they are bound to each other, or whereby either of them shall endeavour to im- pose an obligation on the other of them, shall be, and be deemed a “contract.” • - 435. Any attempt to evade the Act on the part of employers is punishable by a penalty, recoverable before any two Jus- tices; and, to preserve these judges from being in any way in- fluenced, it is declared that no Justice engaged in any of the said trades or occupations, or the father, son, or brother of any such Justice, can judge under the Act. 436. It is presumed in law that labourers and workmen are regularly paid their wages every Saturday night, unless the contrary be proved. See the notes appended to the case of Sellen and Wife v. Norman, 4 Car. and Pay, 80. 437. It is understood to have been decided in the Sheriff Court of Glasgow, that workmen have no right to claim wages for sacramental and national fast days. 438. A road contractor was held liable for the wages of workman hired by a person acting ostensibly as his overseer, but who it was alleged was a sub-contractor, there being no satisfactory evidence that he was known in that character to the workmen. M*Phail v. Glennie, 3 Sh. App. Cas. 389. ; Pink v. Scudamore, 22d June 1831, 5 Deas' Rep. 47. ; Na- bonie v. Scott, 2d Feb. 1815, Hume's Dec. 353. 439. Coopers contracted to make barrels at 1s. 4d. per barrel, from undressed wood, but they were, on arrival at the fishing station, employed to make the barrels from dressed wood; in these circumstances found, that they were entitled to average wages per week. They could not be restricted to 9d. per barrel, from dressed wood, although alleged to be RECOVERY OF WAGES DUE ARTIFICERS. 11 i equivalent to working with undressed wood, at 1s. 4d. Grieve, 30th May 1821, 1 S. D. 39. 440. A contract to pay fixed weekly wages, cannot be changed, at the will of the master, into a contract to pay by the “piece,” without consent of the workman. Matthew v. Glasgow Iron Co. 28th Nov. 1836, 1 Swinton, 393. 441. Where a party employed tradesmen in Glasgow to execute work, and alleged, in defence of payment of the wages, that they were too high, and offered to prove it; the Court refused to grant commission to examine witnesses in London as to the rate of wages there. Wilson, 21st June 1828, 6 S. D. 1012. - 9. Recovery of Wages due Artificers. 442. If the master do not pay his workmen their wages at the stipulated time, they may leave his service although their engagement be for a considerable period. 443. By the 4 Geo. IV. c. 34, s. 5, all servants in hus- bandry whose claim of wages does not exceed £10, who shall be hired for less or longer than one year; and artificers, handi- craftsmen, miners, colliers, keelmen, pitmen, glassmen, pot- ters, or other labourers employed for a certain time, whose claim of wages does not exceed £5, may, on a complaint on oath, made before one or more Justices of the place where the master or mistress reside, recover payment in twenty-one days by warrant of distress and sale. See 20 Geo. II. c. 11, and 31 Geo. II. c. 19. In all such applications it must be clearly set forth, that the servant falls within one or other of the clauses embraced in the statute. It is incompetent for a Justice to make an order for payment of wages to any per- son not included in these Acts. Wills v. Cooper, 5 N. and M. 276. - 444. As the 5 Geo. IV. c. 18, applies only to cases of penalties and forfeitures, Justices cannot imprison for non- payment of a sum adjudged by them to be due as wages, under the 20 Geo. II. c. 19 ; 31 Geo. II. c. 11; or 4 Geo. IV. c. 34, where there is no sufficient distress. Wills v. Cooper, ut supra. - 445. A person holding an assignation of part of a work- i 12 - WAGES. man's wages, cannot recover in his own name as assignee under the above statutes, because assignees are not within the privileges of these Acts. 446. Where a master resides at a considerable distance from where his business is carried on, or is occasionally absent for long periods of time, either beyond sea or at a great dis- tance, and during such absence intrusts his business to the management of another person, it is lawful for one or more Justices of the county or place where the servant is employ- ed to entertain his complaint for non-payment of wages, if under £10, and to summon the manager to appear within a reasonable time. The Justice, if satisfied, after hearing par- ties, is directed to grant an order on the manager for pay- ment within twenty-one days, and failing payment within that time, to issue his warrant to recover by distress out of the goods and effects of the employer, with expenses. 4 Geo. IV. c. 34, s. 4. The workmen entitled to proceed in this way are those engaged in the trades and occupations enume- rated in the 4 Geo. IV. c. 34, and 10 Geo. IV. c. 52. 10. Master's Bankruptcy. 447. Although farm servants are preferred to the landlord, and to the creditors of their master, for their wages, yet the artizan servants of an artificer or mechanic are not entitled to a similar privilege. White, 30th January 1781 ; Fulton, 7th Feb. 1792. They must rank as ordinary creditors; 2 Bell's Com. 157, Prin. S. 1407, 1 Bell’s Illust. 447 ; but if the trustee or the creditors employ them to work up the debtor's materials, they have a claim for wages subsequent to the bankruptcy. Maben, 3d June, 1837, Jurist. - 448. The principle that gives farm servants a preference over the landlord and the creditors, seems capable of being justly extended “to the mechanic who, by manual operations, and the overseer who, by skill and ingenuity, convert the raw material into manufactured produce, and are in a situation precisely similar to a farm servant. Hitherto no such pre- ference has been admitted. In one case, the overseer of an extensive manufactory claimed a preference of the same kind as farm servants, and relied on the principle which mainly DISPUTES RESPECTING WORK PERFORMED. 1 13 governed their preference; but the Court held, that he was entitled to rank only as an ordinary creditor, and the same rule was applied to a workman in a manufactory. There was no competition with the hypothec, and if there had, the claims would a fortiori have been rejected. It is worthy of serious re-consideration, whether consistently with principle such claims ought to be overruled, even in competition with the landlord.” Hunter, p. 713-14. 11. Disputes respecting work performed. 449. The implied obligation in the contract of a workman is, that he shall bestow attention, care, and skill in perform- ing the work intrusted to him ; the converse is, that he shall be liable in all the consequences flowing from his not obeying. 450. Accordingly, if a mechanic or workman lets out his labour or service, and shall either, from carelessness, neglect to perform the work undertaken by him, or, from want of skill, make it useless or insufficient, he is liable in damages to his employer, for he ought not to have contracted for what he would or could not perform. But if the non-performance cannot be imputed to him, full wages are due. Ersk. 3. 3. 16; Bell's Prin. s. 152. et seq. 451. A workman is not liable for the consequences of erroneous directions given to him by his employer while exe- cuting the work undertaken, because the workman's judgment is thereby superseded. Kerr, 28th June, 6 S. D. Nor is he liable for repairing work alleged to have been insufficiently executed by him, if the expense be incurred without giving him previous notice. Mº Donald, 21st Sept. 1831, 4 Jurist, 35; 1 Shaw's App. Cases ; Montrose, 12th Feb. 1834, 12 S. D. 429. Nor is he chargeable with faults not imputed to him during his service. Fraser, 10th Feb. 1831, 9 S. D. 418. 452. If the materials given to the workman to be wrought perish in his hands through a defect in the thing itself, as, for example, if an amethyst given to an engraver happen to break in his hands through a defect in the material, and not through his unskilfulness, he is not accountable for it, unless he has undertaken the work at his own peril. 1 Demat, 109. 453. A shipbuilder was found liable in damages for defi- H 114 WAGES. ciency of work, for using American instead of English oak, although considered at the time equally as good, the latter description of oak being stipulated for. Strachan and Gavin, 12th Nov. 1824, 3 S. D. 259 ; affirmed 22d Feb. 1828, 3 Shaw's App. Cases, 19. - - 454. A contract to execute repairs at a certain rate of wages, did not entitle the master to a higher rate, although during the currency of the work the workmen's wages were increased by authority of the Justices of the Peace. Strachan and Gavin, ut supra. - 455. If a workman contracts to do a certain piece of work at a specific price, he will not be entitled to charge for extra work, or for alterations on the original plan, even although the employer consents to them, unless he be informed that the alterations will increase the expense of the work, or unless the alterations were of such a nature that he could not fail to be aware that it would increase not only the work, but the expense of it. Lovelock v. King, 18th Feb. 1831, 5 Deas Rep. 17. 456. Nor will extra work be allowed, where it is stipulated that no additional work should be done with a view of extra payment, without a written order from the employer or his overseer, unless such written order is produced, even al- though the employer should see and take an interest in the performance of the extra work. Brown v. Rollo, 19th June 1822, 10 S. D. 667. Or where the workman allows his whole work to be measured, and receives payment therefor, without claiming extra work at the time. Adam v. Scott, 31st Jan. 1840, Jurist. - 457. A claim for extra work was sustained in reference to a road formed under contract. Peacock, 15th Jan. 1825, 3 S. D. 436. 458. If a workman engages to perform a piece of work, of certain materials to be furnished by the employer, which the latter only in part implements, but requires the workman to finish it with other materials;–in such a case, a claim will arise for the delay occasioned by the employer in not furnishing the specified materials; or, for additional trouble or expense occa- sioned in the execution of the work by the substitution of DISPUTES RESPECTING WORK PERFORMED. F 15 different materials from that referred to in the contract. Gor- don v. Lawrence, 13th June 1832, 10 S. D. 643. 459. A party ordered a steam-engine boiler, with a general reference to another boiler then in the maker's hands, but without any stipulation as to power; he afterwards saw the one making for him, which was longer than, but not so broad as, the one referred to, and objected to its length; but on the maker offering to take two feet off it, said that would do : Held, that although the maker did not explain that this would diminish its power below that of the boiler originally referred to, he was not entitled to refuse it, on the ground that it was not of the same size and power. Kerr and Sons, 26th June 1828, 6 S. D. 1029. 460. By the Act 1477, c. 78, a smith who shoes a horse in the quick, must pay the expense of the cure, and in the interim furnish another horse to his employer. - 461. It is competent for a professional person to increase the demand for his labour to what he is strictly entitled to, if driven to an action to enforce payment. Henderson v. Camp- bell, 22d March 1836, Jurist. - - 462. Even after the action is raised, if the claim for the work performed be challenged as exorbitant, and be remitted to a person of skill to report on the fairness of the charges, the debtor will be liable beyond the amount claimed, if it shall appear that the charges made were under the current prices at the time the work was done. Thomson v. Moffat, 13th Dec. 1831, 4 Deas' Rep. 393. . 463. Work ordered, but subsequently abandoned by the party, entitles the workman to sue for compensation without tendering or delivering the work. So found in reference to literary labours. Planche v. Colburn and another, 8 Bing- ham, 14. - - 464. A company employed K. to draw the specification of a building proposed to be erected, who employed the pursuer to make out the quantities, which labour was to be paid for by the successful competitor for the building contract: Held, that as the company refused to allow the work to proceed, they were liable to the pursuer for making out the quantities. Moore v. Guardians of the Witney Union, 3 Bing. 116 WAGES. " 465. Where a plaintiff, who was a surveyor, brought an action for the value of measuring work, and for five per cent. on the amount of the monies paid to the tradesmen engaged,—coun- sel offered to prove, that it was the uniform custom for sur- veyors to charge such a per centage on monies paid to work- men, one-half of which per centage had been paid into Court. Lord Kenyon stopped the cause, and said, “The plantiff states his demand to be as much, as he reasonably deserves to have for his work and labour. Does he reasonably deserve to have this exorbitant demand P As to the custom offered to be proved, the course of robbery on Bagshot Heath might as well be proved in a court of justice; it ought not, nor cannot be supported.” Upsdell v. Stewart, Peake's Rep. 255. 466. By the Act 5 Geo. IV. c. 96, commonly called the Arbitration Act, all disputes between masters and workmen, or between workmen and those employed by them, in any trade or manufacture in Great Britain and Ireland, may be settled by a reference to arbiters, mutually chosen by the parties, under the authority of a Justice of the place where the party complained against resides. 1 Vic. c. 67. 467. The disputes noticed by the statute, are, 1st, Disagreements respecting the price to be paid for work done, or in the course of being done, whether the dispute shall arise between them respecting the payment of the wages agreed on, or an injury or damage done or alleged to be done to the work, or any delay or supposed delay in finishing it, or not finishing the work in a good and workmanlike manner, or according to contract, or by bad materials. 2d, Cases where a compensation is to be made to workmen employed, to work any new pattern which obliges them to purchase new implements of manufacture, or to make altera- tions upon their old implements for the working thereof. 3d, Disputes respecting the length, breadth, or quality of pieces of goods, or in cotton manufacture, the yarn thereof, or the quantity or quality of the wool thereof. 4th, Disputes respecting the wages, or compensation to be paid for pieces of goods that are made of any great or extra- ordinary length. 5th, Disputes in the cotton manufacture, respecting the ma- T) ISPUTES RESPECTING WORK PERFORMED. 117 nufacture of cravats, shawls, policat, romal, and other handker- chiefs, and the number to be contained in one piece of such handkerchiefs. 6th, Disputes arising out of, for, or touching the particular trade or manufacture, or contracts relative thereto, which cannot be otherwise mutually adjusted and settled. 7th, Disputes between masters and persons engaged in siz- ing or ornamenting goods. 468. Complaints by workmen as to bad materials, must be made within three weeks from receiving the same ; complaints arising from other causes must be made within six days after the cause of complaint shall arise. Sec. 2. 469. It is declared, that nothing in the statute itself shall authorize any Justice acting under it, to establish a rate of wages, or price of labour or workmanship, at which the work- man shall in future be paid, unless with the mutual consent of both master and workmen. Sec. 2. - 470. When any dispute arises, it is lawful for either mas- ter or workman to demand a reference or arbitration of the matter. If parties be agreed, they may submit it to a Justice of any county, stewartry, barony, city, burgh, town, or place within which the parties complained against resides, who may determine the matter summarily. But if such par- ties will not submit the dispute, the Justice, on a complaint made and proved, that the party complained of had been ap- plied to, to settle the dispute, but declined, then the Justice is authorized to cite that party to appear within three days. Failing his appearance, the Justice may nominate referees, not less than four, nor more than six persons. Of these, one- half must be master manufacturers, or agents or foremen to such masters, and the other half workmen in the same busi- ness as the complaining party, all of whom must reside near to the place where the dispute has arisen, Out of this num- ber the master and workman must choose one each ; but if either decline to nominate, the Justice may do so for him. If any of the referees named refuse to act, the Justice may name another. - 47 l. The referees must proceed on a day named, to hear parties, examine witnesses, &c. and thereafter report to the § 18 WAGES. Justice. Refractory witnesses may be punished for non-ap- pearance. See the Act for the procedure to be followed, and where the master becomes bankrupt, or is absent. (Ap- pendia.) 472. Many cases did arise where no Justice could be found who had jurisdiction where both of the parties differed, and it was doubted whether the statute 5 Geo. IV. c. 96, could in such cases take effect. That doubt has now been removed by the Act 1 Vict. c. 67, which declares it lawful for the Justice of the place where the party complained of resides, to determine the disputes under the 5 Geo. IV. c. 96. (Appendia.) 12. Risk. 473. Where the subject on which the risk is to be bestow- ed belongs to the employer, the risk is with the employer, ac- cording to the rule, Res perit domino. Bell's Prin. 4 Ed. 152. 474. If the employment be general, to labour, or on time, the hire is due as the work is done, and added to the employ- er's materials; and it is not forfeited, or repayment demand- able, if the thing should, without fault of the workman, perish with the work on it. Such is the case of repairs to a ship, which is burnt before being finished. As to printer's work burnt in the printing-office, usage has been held to alter the general rule. Ibid. 475. If the workman be hired to accomplish some particu- lar operation which he undertakes to do, and the whole perishes before he has completed his undertaking, the loss of his work would seem to fall on him; yet in those cases of executing contracts, where the price is paid periodically, and the subject appropriated to the employer at the several payments, the whole would perish to the employer. Ibid. 476. If the workman is to make an article of manufacture of materials to be found by himself, the risk is with the work- man, if the unfinished work perishes. It is an incomplete executory sale, for which he cannot claim the price of his la- bour. Ibid. 477. If a house be burned down through any act of miscon- duct or negligence done by a servant of the tenant of a farm, in the ordinary scope of that servant's duty, the tenant is liable CASES DECIDED ON APPEAL. 119 to his landlord for the loss so occasioned. If accidental, not liable. Mº Kenzie v. M'Leod, 10 Bing. 385. 13. Cases decided on Appeal by the Scotch and English Judges, under the Assessed Taa. Acts, relative to Duties payable for Servants.” 478. The occasion for introducing these decisions into this treatise is, that they may be useful not only in point- ing out the classes of servants liable in duty, but prevent masters from infringing the statutes that impose the tax. Be- sides, as the imposition flows from the service rendered to the master, it maturally associates with wages. 479. By the 43 Geo. III. c. 161, which has been modified by subsequent Acts, certain duties are payable to Government by the master who employ the class of servants therein emu- merated. The tax, so payable, is often deducted from the wages; but this cannot legally be done, unless there be a special agreement with the servant to give the deduction, because the tax is imposed exclusively on the master, not upon the servant. 480. The cases decided on appeal are, Attendants on Lunatics.-Servants waiting on pauper pa- tients, are now, by a treasury minute, not liable in duty. But servants attending on patients paying board, are liable. The duty is progressive. 481. Breaker of Colts.-Employed by a farmer, and board- ed and lodged by him while the services were required, was charged as a groom. Not liable. 482. Bachelor's Duty.—Is charged on “male persons never having been married,” and are held to be such under the Act, without regard to age. 43 Geo. III. c. 161. s. 27. Roman Catholic clergymen are exempted from payment of this duty by 4 and 5 Will. IV. c. 73, s. 4. - 2. Charged on a club in respect of the servants. Not liable. * Parties desirous of examining the cases, will find them in the posses- sion of the clerks to the Justices of the Peace. The decisions are regularly printed: those pronounced in England are equally applicable to Scotland. 120 wAGES. 3. Manufacturers who were in partnership, and one of whom was unmarried, were charged bachelor's duty for a groom, in respect of one of their day labourers who looked after their riding horses. Liable, but not for the bachelor's duty. 4. A minor, fifteen years of age, pleaded exemption from the duty. Liable. 5. A party who had returned an occasional servant charge- able at 10s. charged £2, 4s. bachelor's duty. The man was hired by the week, and usually wrought as a domestic servant, cleaned boots and shoes, and went errands, &c. Liable. 483. Boots.-In an inn charged as a domestic servant. Liable. 484. Canal Company.—Riders of horses for drawing boats on the canal. Not liable. 485. Clergymen.—See page 125. 486. Clubs.-Servants at clubs charged to the progressive duty. Liable. - 487. Coachmen.—1. Employed to drive fly carriages by persons not licensed as innkeepers. Liable. 2. Postmasters charged for coachmen let with horses by the month. Liable. & 3. Drivers of vans used for conveying luggage, charged as stage coachmen. Not liable. 4. Driver of a mail-cart employed to look after the horses used therein. Liable. 5. Stage coach proprietors are not exempt by 6 and 7 Will. IV. c. 65, s. 4, from the assessment payable for the drivers of their stage coaches, - 488. Conductors.--To omnibus carriages. Not liable. 489. Composition.—1. A person keeping two horses under his contract, charged in consequence £2, 4s. bachelor's duty : but commissioners restricted duty to 10s. for an occasional Servant. CASES DE CIDED ON APPEAL. 121 2. Party who had compounded for a servant chargeable at 10s. and afterwards kept a four-wheeled carriage, charged the difference of duty between 10s. and 24s. for a servant. Liable. 3. A son residing in family with his father, who had com- pounded, was charged for one of the latter's servants, who looked after the son's horse and gig. Not liable. - 4. A son occasionally riding one of the horses, compounded for by his father, charged 24s. for the servant of the latter who cleaned it. Not liable. 5. The manager of a subscription pack of hounds, who had compounded for servants, was charged for the huntsman and three other servants, employed about the subscription pack. Liable. - 6. An attorney residing with, and in partnership with his father, was charged for one of the servants of his father, who had compounded, on account of employing in the care of a horse and gig. Liable. 7. A lady was charged for a servant, on account of her car- riage being cleaned by the servant of a friend, who had com- pounded. Liable. 8. A person compounded for a servant—a day-labourer, who neither lodged nor boarded in the appellant's house; he was thereafter charged 24s. duty for another servant regularly hired for domestic duties, and who cleaned two Yeomanry cavalry horses, &c. Liable. 9. Compositions for assessed taxes are extended to the 5th April 1841, by 2 and 3 Vict. c. 35. 490. Domestic Service.—Any servant in husbandry, or any servant engaged to a trade, employed by the master to clean knives and shoes in his family, or to wait his table, &c. Li- able. 491. Eacemption not claimed.—Party charged for a servant lad under 18 years of age, in respect he did not claim it, on his notice paper. Liable. 492. Game Keepers.-1. A farm-servant who had no depu- 122 WAGES. tation, and who took out a general game certificate, and occa- sionally killed game on appellant's estate, charged as an as- sessed servant. Liable. 2. And a person employed to kill game, for whom a certifi- cate to the higher duty had been obtained. Liable. 3. Labourer for whom no certificate had been obtained, em- ployed generally about plantations; but in the shooting season, often to accompany his master with the game-bag, and at night to detect poachers, charged as a game-keeper. Not liable. 4. Person employed on the estate of Southbar as a labourer, took charge of the hedges, and turned off poachers:—the mas- ter paid full duty for a game-keeper on his other estate of Wellwood. Liable. - 493. Gardener.—1. Day-labourer employed to do the spade work, the employer performing the forcing and grafting himself. Not liable. - 2. Man employed to work in the garden, milk cows, and look after grass-land. Liable. 3. Labourer employed on a farm, and occasionally to assist an assessed servant, in the garden. Not liable. 4. Servant occasionally employed in garden, and grooming riding horse, but much employed on a farm of twenty acres. Liable. 494. Grooms.-1. Servant in husbandry cleaning an employ- er's horse and gig, for which duty is payable. Liable. 2. Any male person retained by his employer bona fide for the purposes of trade, manufacture or agriculture, and who is occasionally employed by his master to groom his horse and gig, is exempt from duty in consequence of such occasional service by 6 Geo. IV. c. 7, § 8; but if the service of grooming be stated as part of the engagement, or although not stated, yet if it be continuous. Liable. 3. Male servants under 18 years of age, are exempted from duty, provided such servant shall have a legal settlement in the parish or place in which he serves, and shall not have attained the age of 18 years complete, prior to April in the year of li- ability. 4 and 5 Wm. IV. c. 73, s. 3. ÇASES DECIDED ON APPEAL. 123 Note.—It would appear that the legislature have no wish to press for decisions in Scotland, where the party employing a servant under 18 years of age, cannot prove three years' re- sidence of the servant in the parish in which the party so em- ploying said servant shall reside. An objection, or “case” as it is called, was taken at Kinross Appeal Court, 1839, against the decision of the Commissioners relieving an appellant, of duty on a male-servant under 18, but who had only resided about two years in the parish of Orwell, Kinross-shire, and whose le- gal residence, according to the parochial law of Scotland, was in Fife. The case was taken, at the earnest request of the Com- missioners, and first laid before the Honourable Board of Stamps and Taxes, in London; who directed the case to be with- drawn, and the decision of the Commissioners relieving the ap- pellant, to be acquiesced in. This therefore should be favour- ably regarded, because the law was clearly in favour of the charge. It was, until the date of the above decision, indispen- sably necessary for the servant to reside three years in a pa- rish in Scotland, before the master could claim the exemption. 4. Son assisting his father in cleaning his horses. Not liable. 5. Man who occasionally assisted an apprentice, about six times in the year, to clean the horse and gig of the appren- tice's father, charged as a servant. Not liable. 6. A labourer employed to groom a horse of a nobleman’s steward, and to look after fifteen acres of land, charged to the higher duty. Liable. 7. Labourers in husbandry, when employed to work in the garden, and to assist in the stables, &c. Liable to the progres- sive duty. 8. Merchant who had returned one servant, charged pro- gressive duty for a second, in respect of the services of one of his farm-labourers, who, on occasion of visiting his farm, took care of his horse and gig, &c. Liable. 9. Man employed to clean a four-wheeled carriage, with wheels under 30 inches, and a pony under 12 hands, also knives, &c. charged as a servant. Liable. 10. A weekly servant employed by a surgeon to look after a horse, clean boots, &c. charged 24s. Liable. 124 WAGES. ll. A brewer charged for a servant in respect of the servi- ces of a labourer retained to look after his trade horses, who generally cleaned his horse and gig. Liable. See No. 2. 12. A farm-servant cleaning his master's horse and gig, for which no duty is exigible. Not liable. • 13. A farm-servant employed to clean a two-wheeled car- riage, not exempt from duty, by reason of the master's name not being properly painted thereon, in terms of the 6 and 7 Will IV. c. 65. and 1 Vict. c. 61. Liable. 14. A market-gardener charged for a servant, in respect of the services of his carman who cleaned his horse and chaise, not occasionally but continuous, and groomed also the cart- horse. The appellant admitted that he did not do it himself. Liable. 15. A gentleman residing with his mother-in-law, charged duty on account of the servant of the latter, who looked after his horse, and cleaned his boots. Liable. 16. Inn-keeper charged duty for a groom, on the ground of his being chargeable for two riding horses, the same being post horses, but ridden occasionally without the duty being paid. Liable. - 17. Employed by a training groom in the stables of the owner of race horses, charged to the owner, although paid and employed by the trainer. Owner liable. 18. Livery stable keeper employing one of his men to clean a horse and carriage used by himself only occasionally, for pleasure. Liable. • 19. A tradesman employing one or other of twelve workmen to clean his horse and chaise, but never em- ploying them in any domestic capacity, charged for a servant. Liable. 20. A timber-dealer charged for a servant, on account of his carman cleaning his horse and gig, although not employed to clean knives or shoes. Liable. 21. Postmaster charged for two servants, in respect of two persons who were employed by him in conveying the mail- bags on horse back, and kept solely for that purpose, also to groom the horses so used. Liable. - 22. A person licensed to let post horses and carriages, CASE3 DE CIDED ON APPEAL. - I 25 not liable. But if horses, carriages, and groom be hired be- yond 27 days, hirer liable, and in progressive duty, if he keeps other servants. 6 and 7 Will. IV. c. 65, s. 4. 23. Chemists who returned a horse and gig, were charged for a groom, on account of one of their porters usually clean- ing the same. Liable. 495. Helpers.-Common weekly labourers employed in the hunting season to assist in the stables of a gentleman ; em- ployer charged to the progressive duty. Liable. 496. Horse Dealers.-1. Servants employed by, to clean the horses he hunted, boots and shoes, &c. Liable. 2. Charged for a groom, in respect of the services of the man employed to ride horses to fairs for sale. Not liable. 497. Hospitals. –1. Erected by private endowment, such as Heriot's, Watson's, and Gillespie's hospitals in Edinburgh, servants charged to the progressive duty. Liable. 2. Servants in public charities, such as the poors-house, infir- mary, &c. Not liable. 498. House and Office Porters.-1. Man employed to light fires, and sweep out the apartments of a house let out in counting-rooms, charged as a house porter. Not liable. 2. Men at a bazaar, employed to lock doors, clean lamps, windows, &c. Not liable. 3. Man employed at an attorney's office, to open the door, deliver letters, &c. Not liable. 499. Huntsmen.—Parties who had compounded for their establishment, charged for the huntsmen and whippers-in, of a pack of hounds, towards the support of which they had receiv- ed subscriptions. Liable. 500. Clergymen.—The minister's man is held in Scotland to be a domestic servant. See 391. 1. Man to work glebe, groom riding horse, and dig in gar- den. Liable. 126 - WAGES, 2. Hired servant by year, who takes charge of glebe and garden, goes messages, and may assist in domestic work. Liable. 3. Charged from two to three servants, in respect of the services of a weekly labourer, principally employed in his farm, but occasionally to work in garden, milk cows, feed pigs, &c. Liable. 501. Miscellaneous Employment.—1. Boy employed by a surgeon, to carry out medicine, clean knives, and wait at table, charged under Sch. C. No. 1. Liable. 2. A surgeon charged for services of a man at a dispensary, and to clean boots and shoes. Liable. 3. A gentleman charged 24s. in respect of the occasional services of one of the servants, returned by his mother-in-law, who cleaned and looked after his chariot. The party, however, returned a servant at another residence. Not liable. 4. Butler returned by a lady, who paid him his wages; charged also to her son, in whose service he actually was em- ployed, and with whom he resided. Liable. (This was viewed as an attempt to evade the progressive duty.) 5. A surgeon charged 10s. in respect of the services of his father's servant, who took charge of his horse; he was in part- nership with the father, but resided in a separate house. Li- able. See 489, Composition, No. 6. 6. Establishment of an innkeeper transferred, on retiring from business, to his shopkeeper, both parties charged in the year following the transfer for post-chaise, waiters, &c. Both liable ; each having been in possession of the articles assessed during the period of charge. 7. Men retained for trade charged as a servant on account of being only occasionally employed in cleaning boots, running errands, cleaning windows, and in the garden. 4 Geo. IV. c. 11, s. 3; 6 Geo. IV. c. 7, s. 8. Not liable. See 494, Grooms, No. 2. f 502. Occasional Servants, Sch. C. No.3.—l. Lady not keeping horse or servant, but who occasionally employing a man to clean her four-wheeled carriage, charged for a servant. Not liable. CASES DE CIDED ON APPEAL. 127 2. Mother residing with her son, each having a distinct es- tablishment; the son charged for the mother's coachman, in respect of occasional services. Not liable. 3. Son residing with his father, charged under Sch. C. No. 3, on account of his father's servant cleaning his horse. Li- able in the duty of iOs. 4. Son returned and charged for a horse which was kept at his father's eaſpense, and groomed by the father's servant. Not liable. - 5. Son occasionally riding one of the horses for which his father had compounded, charged 24s. for the servant of the latter who cleaned it. Not liable. 6. Brother residing with his sister, and paying her a cer- tain sum for board, and the keep of his horse, and for a per- son to attend on him, charged for the occasional services of his sister's servant. Not liable. 7. Gentleman residing with his brother, was charged 10s. for the occasional services of his brother's servant, who looked after his horse. Liable. 8. Greenwich pensioner employed by a person who kept no horse or carriage, to clean knives and shoes. Liable in the duty of 10s. 9. Employed in the care of horses at theatres. Liable. 10. Servant returned by one person, charged also to an– other, on account of his cleaning the horse and gig of the lat- ter. Liable. 11. Party who generally cleaned his horse and gig himself, but occasionally had a man not in his service to assist him, charged for a servant 24s. Liable. 12. Man at weekly wages employed to look after a horse, charged under Sch. C. No. 3. Liable, 10s. 13. Partners charged for a servant, whose horse and gig were cleaned by the servants of other persons. Liable. 14. Solicitors who were in partnership, and each of whom had compounded for a house servant, charged for a servant 24s. on account of a horse returned by the firm, and which was kept for a month at a time, alternately, by each partner, being groomed by the servants compounded for. Not liable. 128 WAGES. 503. Officers, (Army.)—1. Staff-captain of a military in- valid depôt, charged for a servant, Sch. C. No. 1, in respect of the services of a soldier belonging to the royal veteran com- pany, allowed him by the army regulations, but who was not actually a soldier in any regiment to which the party charged belonged. Liable. 2. Officer charged under Sch. C. No. 3, 24s. in respect of the services of a soldier occasionally employed to groom the horses of friends visiting him. Liable. (Navy.)–3. Naval officer commanding a packet used for carrying out the mails, charged for a servant in respect of the services of one of the crew of the packet. Liable. (Marine.)—4. Chaplain of a marine hospital (who had also a curacy) charged for a servant, C. No. 1, in respect of the services of a marine, who was allowed to attend upon him. Liable. 504. Ostler.—1. Employed by an innkeeper to groom two horses, for which he is charged under Sch. E. No. 1. Liable. 2. Traveller, charged under, Sch. C. No. 1, in respect of the services of the ostler of a livery stable, who looked after his four-wheeled carriage drawn by one horse, when at inn. Not liable. - - 3. Employed by an innkeeper to groom the horse kept for his private use, and clean boots and shoes. Liable. 4. Employed as “boots” at an inn. Liable. 505. Trainer of Race Horses.—1. Nobleman charged for eight grooms employed in his stables, but paid by his trainer, with whom he had contracted to provide for the necessary attendants on his race horses. Liable. 2. Training groom charged to the progressive duty, from one to five grooms. He paid duty for twenty-seven race horses, four of which were his own property; and he employ- ed fourteen boys to look after the horses he had in training for his employers: the latter allowed him, as a perquisite, the use of the boys to train his own horses when not engaged in exercising theirs, and for the service of these boys the charge C ASES DE CIDED ON APPEAL. 129 was made. The boys' wages were paid by the owners of the horses. Not liable. 506. Waiters.—1. Not liable in duty, unless employed six months in the year. 2. Innkeeper employing a waiter during the summer months, but discontinuing him during the winter months. Not liable. 3. At clubs, charged under Sch. C. No. 1, progressive duty. Liable. - 4. Licensed victuallers charged for two waiters, in respect of the services of his son, of age, and a boy under 15, who attended at an eating-house to receive orders for beer and spirits. Not liable. - 5. Licensed victualler, charged in addition to two waiters who slept in his house, for two other men, as waiters, who served him and refreshments to the company frequenting his concert-room ; for which they received no wages, their only emolument being derived from the guests. Liable. 6. Men employed at a gin shop to serve out spirits by the glass to customers, charged as waiters. Not liable. CHAPTER XVII. LIVERY AND PLAIN CLOTHES. 507. Whether a master, who provides livery or plain clothes to his servant, can insist on having them returned on dis- missal of the latter, or on the dissolution of the contract, must entirely depend on the terms of the original hiring. 508. If it be stipulated, that the servant shall be entitled to the dress at the end of six months, or at any other period, he cannot claim it until expiration of that time. According- ly, a yearly servant engaged at 30 guineas of wages, and to have one livery suit of clothes furnished to him, was dismiss- ed shortly after his engagement without a sufficient cause. He brought an action for delivery of the clothes; to which I 130 LIVERY AND PLAIN CLOTHES, the master answered, To support the action, the clothes must be the actual property of the servant. They were not to be- come his property till he had served the year. The servant replied, He was willing to serve the year, but was wrongfully prevented by his master. Lord Tenterden held the action to be founded in property. “If the servant was dismissed with- out a reasonable cause, whereby he was prevented from being entitled to the suit of clothes, he has action for that ; but he cannot maintain an action for the recovering of them, be- cause he has no property in the clothes till he has served the year.” Crocker v. Molyneua, 6th Dec. 1827, 3 Car. and Pay, 470. 509. If there be no stipulation to whom the property of the livery or plain clothes shall ultimately belong, and the master furnish them, they are his exclusive property, and the servant cannot take them away at any period, without the master's consent. Shiells, 2d July 1825, 4 S. D. 134. 510. Where the master orders his servants to be supplied with two suits of livery, the merchant must strictly obey. Were he to supply, at the servant's request, one suit of livery, and one suit of plain clothes, no action would lie for the va- lue of the suit of plain clothes. Hunter v. Countess of Berke- ley, 7 Car. and Pay, 415. 511. Lord Abinger observed, in Hunter’s case, wt supra, that “the practice of servants exchanging their livery for plain clothes, when in their master's employ, is a species of fraud on the master; and it is the duty of the party furnishing the livery, to communicate to the master such a proposal when made ; for if a master thinks it right that his servant should have two suits of livery in the year, it is the duty of the ser- vant to wear such livery.” - 512. Where a master had paid for a suit of livery, which, unknown to him, the furnisher immediately took back from the servant, held, that the value of such suit must be repaid to the master. Hunter, wt Supra. 513. B. a tailor, put lace, with the arms of A., his customer, wrought in it, on the livery suits furnished to her servants. B. had the lace made in pieces of fifty yards each, at a cer- tain price; but when he furnished a livery suit, he charged PERQUISITES. 131 A. with the quantity used, at a higher rate than he gave for it. Held, that when A. ceased dealing with B., she was not bound to pay for any of the lace then in his hands. Hunter, wt supra. - 514. A wife living in family with her husband, is not liable for the cost of wearing apparel furnished to her men-servants, though ordered by her personally. Robertson v. Haldane, 22d May 1801, Hume's Dec. 208. 515. Mournings furnished to domestic servants on the death of their master or mistress, or of a member in his fa- mily, is considered a free gift tendered through respect to the memory of the deceased, unless it be otherwise expressed at the time of furnishing the dress. The party liable for such furnishings, is a question of circumstances. If the deceased desired it by his testament, the expense must be deducted from the dead's part of the goods in communion. Forbes, 20th June 1713, Moncrieff, Mor. 3945. If by the repre- sentatives, then the expense fall to be paid by them person- ally. - 516. The wearing apparel of servants cannot be detained by a master, nor arrested by a creditor: an excess of cloth- ing may. See foot-note to Iv. Ersk. 4. 3. 27. CHAPTER XVIII. PERQUISITES-DONATIONS.–LEGACIES TO SERVANTs, &c. 1. Perquisites. 517. At one time it was usual, when a person accepted of an invitation to dinner, &c. to give to the entertainer's ser- vant, at leaving, a douceur for the trouble he had thereby oc- casioned. This was called the servant's vails ; but it has now been abandoned. Another custom, more permicious in its tendency, has of late years sprung up, which receives the appellation of perquisites. It also is loudly complained of. “The necessity under which tradesmen lie, or suppose them- 132 PERQUISITES. selves to lie,” says a popular writer, “ of giving allowances to servants on all the monies paid by their masters or mistresses for goods purchased, is as grievous a tyranny as the custom of vails was in former days, and not less worthy a vigorous effort to get it abrogated. Many employers of servants are not perhaps aware of the mischievous effects of this custom. It is nearly universal, we believe, in all our large towns, or at least may be said to hold with regard to all servants who are en- trusted with any direct transactions with tradesmen. The cook expects an allowance from the butcher, baker, and vege- table merchant; the butler looks for a douceur from the wine- merchant and goldsmith; and the housekeeper requires a per- centage on every pound spent on groceries. Perhaps five per cent. may be the average profit realized by servants on the goods purchased by their employers—a profit realized without outlay of capital, without industrious exertion, with- out any sort of merit on their part whatsoever, while the pro- fits of the tradesmen himself, with all his industry, outlay of capital, risk of loss, and skill in business, is not in many in- stances quite so much, and in few instances much more. Many masters may be under an impression that this allowance is something abstracted or deducted from the tradesman's pro- fits, and therefore is no concern of theirs. But this is a de- lusion. The necessity of giving such allowances must upon the whole have the effect of raising the prices of goods, for it must take its place amongst the circumstances which deter- mine prices. Thus the master is in the long run the loser. He is not so, perhaps, to the full amount of the allowances given to his servants, for as some customers do not exact the servant-allowance, and yet pay the same prices as the rest, the loss will of course be apportioned over the whole ; but it can- not, we should suppose, be any consolation to a set of hon- ourable men or women, that the whole mischief resulting from an error of theirs, is not concentrated upon themselves, but shared by innocent parties. This, indeed, should only be an additional and most powerful reason for the effort which is re- quired to put an end to the practice. It is with masters alone, we believe, that the power of extinguishing the custom resides. The tradesmen can no more do it than can a few of the sub- DONATIONS. 133 jects of an oriental despotism resist the powers placed over them. If any one on any occasion refuses to give the custom- ary allowance, the servant is in general at no loss to take away his master's custom. Suppose the case of an oil mer- chant: the servant has only to mix a little water with the oil to prevent it from burning clearly, in order to make the mas- ter give orders for trying another shop. And so on with other articles of domestic consumption. Nor is this the only means of bringing the refractory “to reason.” There are many modes of annoyance which servants have it in their power to practise against tradesmen. For example, in the case of plate borrowed from the goldsmith, it is easy for a butler to return it in a state so far from its original cleanness, as to make the tradesman fully worse off than he would have been by granting even a liberal allowance. In fact, this cus- tom is simply a tyranny which one portion of the community exercises over another, and, like all tyrannies, it is as demoral- izing for the active as for the suffering party. It may not be easy at once to put an end to it; but all conscientious mas- ters and mistresses are bound to use every effort in their power for that purpose. They should, in the first place, make such arrangements as to wages with servants, as to leave no pretence for the expectation of perquisites. It should be an agreed point, that no such thing is to be in any case exacted. They should see that this is understood by their tradesmen, whom, on the other hand, they should bind not to give allowances. Finally, they should be guarded against complaints brought by servants against these trades- men, and in every case inquire for themselves into the alleged cause of dissatisfaction. By such means, under a vigorously sustained effort, the system might be brought to an end, and with no higher advantage to any, we are convinced, than to servants themselves, with whom it is at present only a source of corruption, tending to impair that respectability which, as a large and useful portion of the community, they are entit- led to enjoy.” Chambers’ Journal, No. 410. See 270. 2. Domations, 518. A sum agreed to be paid along with wages to a ser- 134 LEGACIES. Vant as an encouragement to assiduity, is, by tacit consent, held to be renewed from year to year. Mansfield, 18th Feb. 1832, Sh. App. Cas., and 21st June 1831, 9 S. D. B. 780. 519. Dresses, trinkets, &c. given by a master to a female servant not fitting her station, or furnishings not solicited by her, are presumed to be donations,—for this plain reason, that the wages are not due till the end of the engagement, and during its currency the only payments that can validly be made to the servant, when solicited, are for the purchase of necessaries which cannot be avoided. Hedgley v. Holt, 4 C. and P. 104. See 372 to 375. 3. Legacies. 520. The bequest of a year's wages to the servants of the testator, over and above what might be due to them at his death, applies only to those who are engaged for a year. Booth v. Dean, 1 M. and K. 560. And half-a-year's wages to all his servants beyond what should then be due, relates only to the domestics in the family at the time of the testa- tor's death, and not to servants who had previously left, al- though their wages remained unpaid. Robertson, 10th Dec. 1749, 1 Craigie, 293. A bequest of a year's wages to such of the testator's servants as shall be living with him at his death, applies only to such servants as live and have diet in the master's house, and not to servants obliged to spend only part of their time with the master. Townsend v. Windham, 2 Wes. 546. Where the testator, in a codicil, directed his executors to pay “to all my other servants the sum of £500 each, and £20 each for mourning,”—the coachman who drove the carriage and horses provided to the testator by a job-mas- ter, according to the usual course of that business, claimed under the general bequest. He pleaded, that he was return- ed by the testator as his coachman, under the Act imposing a duty on male servants: that he wore his livery : that al- though he did not board or lodge in testator's house, yet he received weekly twelve shillings of board wages. The exe- cutors answered, That is all true; but the servant contracted with, and hired himself to the job-master, and was sent by him to drive and take charge of the carriage and horses: that UNDUE INFLUENCE. 135 the job-master paid the claimant mine shillings weekly, and was the person legally bound for the coachman's carelessness or misconduct in driving : that there was no contract between the testator and the coachman. Held, that the coachman did not fall within the bequest, for he was merely the subject of the contract between the testator and the job-master, not a party to it. Chilcot v. Broomley, 12 Wes. 114. 4. Undue influence over, or concealment of facts to, Masters by Servants, in cases of Bequests. 521. Taking advantage of the weakness of an employer, or in any way exercising undue influence over him, to obtain a pecuniary benefit; or to assist others in imposing on him, to the injury of his representatives, is fraud. Interference on the part of a servant is, and has always been, justly viewed by law with Suspicion, however exquisitely the disguise be wrought. Accordingly it has been held, where a servant received a lease from his master, that the consideration must be fair. If the transaction be for a yearly rent, the servant must shew that he gives the full value, which would have been obtained by the factor from a stranger. But where the tran- saction is mixed with motives of bounty, then the servant must shew, that the employer was aware of every circum- stance relating to the transaction, either within, or ought to have been within his factor's knowledge, which could tend to demonstrate the value of the property, and the precise extent of the bounty of the employer. Selsey v. Rhoades, 2 S. and S. 49. In another case, where a master insured his life for f3000, and assigned the policy to his confidential clerk, who thereafter paid one-third, and the master two-thirds of the pre- mium as it became due, it was found, that as the latter had left a writing enclosed within his Will, declaring that the po- licy had been obtained by undue influence exercised over him, that fact, coupled with other circumstances, rendered the as- signment fraudulent and void. Collins v. Hare, I Dowl. 139. 5. Obligations against the Policy of Domestic Relations. 522. A bond or obligation for a sum of money, or am an- nuity payable to a servant, as the price or consideration for 136 BON DS OR OBLIGATIONS GRANTED. bringing about a marriage with the granter, and a member of the master's family, are held in law to be contra bonos mores, and therefore null and void. In one case, Lord Hardwick ex- pressed the extreme jealousy of the Court of all such contracts made with a guardian or servant, especially with the latter, in respect of the marriage of persons, over whom they have in- fluence; nothing tending more to introduce improper matches. “The established rule is, that without regarding whether the match is proper or not, if brought about by a marriage bro- cage contract, such contract should be set aside, not for the sake of the particular instance or person, but of the public, and of the mischief that would be introduced, and to pre- vent the influence which servants more especially would gain over young ladies. Saving therefore, on the one hand, such fair provisions as may be made, in gratitude or generosi- ty to faithful servants, and on the other, such as have been fairly confirmed and ratified in the full knowledge of all cir- cumstances; ” he decided an issue to be tried in a Court of law, whether the bond granted was in consideration of, or a premium for, the defendant’s procuring or assisting the plain- tiſſ with his marriage. Cole v. Gibson, 1750, Wes. 503. In 1689, the Court of Chancery ordered a bond to be delivered up and cancelled, which had been drawn out in common form, but proved to be founded on an agreement, that a lady should marry her own servant, or forfeit the sums in the bond; it being contrary to the nature and design of marriage, which ought to proceed from free choice, and not from compulsion. Where obligations, granted for the purpose of bringing about marriages, were set aside, see Thomson v. M'Kail, 14th Fèb. 1770, Fac. Coll. ; Campbell v. Burns and Stewart, 6th June 1678, 1 Fount. 4505. 6. Bonds or Obligations granted, ob turpem causam. 523. A bond of annuity, or obligation by a master, to a female servant for payment of a sum, as the price or con- sideration of her entering into, or continuing in, a criminal intercourse with him, is not actionable. Ersk. 3. 1. 10; Friend, 2 Car. and Pay. 584; Durham, 20th July 1622, Mor. 9469 ; Hamilton, 26th June 1765, Mor. 947 l. BON DS OR OBLIGATIONS GRANTED. 137 524. Although bonds granted for an unlawful consideration produce no action in law, yet where they have received exe- cution no restitution or repetition will lie. A. v. B. 21st May 1816, Fac. Coll. 525. If the bond or obligation be a voluntary compensation given to the servant, for the injury done by past illicit con- nection, and as an inducement to live separate, and lead a virtuous life, it is valid. 1 Bell's Com. 232; Gibson v. Dickie, 3 M. and S. 463; 1 Bell's Illustr. 59-61. But the bond will not be valid, if the grantee be a prostitute. Hamilton v. Main, 3d June 1823, 2 S. D. 356. 526. If the master be a married man, which is known to the servant, any obligation given, by way of compensation, was held at one time to be ineffectual. Where a bill for £100, and a bond of annuity for £40, were granted by a married person, named Parrot, to the plaintiff, a young woman, who came to live in his family, as a companion to his sister, and afterwards, by his criminal connection with her, occasioned a separation with his wife, Lord Hardwick was satisfied, 1. That the grant was praemium pudicitiae. 2. That from the plaintiff's youth, she had been seduced. But, 3. That although the court had in such cases, and in consideration of seduction, Sustained such grants, this never had been in the case of a married man, the woman knowing it:–that in such a case no relief could be given, such as might be extended to a young woman who had proceeded in reliance on marriage, and been disappointed; the invasion of the peace of families admitting of no excuse. Priest v. Parrot, 4th Feb. 1750. But the prin- ciple, there laid down, was overruled in the case of Mosley v. Nye, 6 B. and C. 133. There Mosley, a married man, living with his wife, but by medical advice without sexual inter- course with her, cohabited in his own house with Nye, his ser– vant girl, for two years, and afterwards took a cottage for her in the neighbourhood, where they continued their connection for four years more. She was delivered of two children; and at the close of their connection, he gave her a bond for an an- mujty of £100, and £500 each, to the children at his death. The Chancery sent this question for the opinion of the Court of King's Bench,--Whether in law there was a good defence i 38 B ON DS QR OBLIGATIONS GIRAN'i'ED. against payment of the annuity ? The Court held, that, in the circumstances of the case, there was no good defence in law. Judge Bayley said, A bond, as praemium pudicitia, at the end of a criminal connection, is valid; and although in adultery there is more criminality than in the mere connec- tion of unmarried persons, a court of law cannot measure de- grees of immorality. In Priest's case, the bill was dismissed, the bond not decreed to be delivered up ; therefore it is not a decisive authority, that such a bond may not be enforced in a court of law. I Bell’s Illus. 60. 61. 527. A bond by the father for a sum of money payable to the innocent issue of his illicit intercourse, is valid, even al- though the mother should be proved either an adulteress or a prostitute. Hamilton, 26th June 1765, Mor. 947 l. 528. It happens occasionally, in cases of filiation of natural children, that the man in his judicial declaration admits his carnal knowledge of the mother, but cautiously refers it to a distance of ten months or more, or six months and less, before her delivery. It also sometimes happens, that witnesses swear to circumstances of familiarity between the parties, or perhaps to something more, but still to things which happened beyond any reasonable period of gestation. In such cases, it is reasonable for the Judge to consider the situation and circumstances of the parties at a later period; and if these are still such as af- ford them the like temptations and opportunities of meeting, as, for instance, in the case of master and servant, or fellow- servants in the same family, or lodgers in the same house,_-it is natural to presume, that such an intercourse, once com- menced, does not cease while those opportunities continue. Brown v. Smith, 12th Dec. 1799, Hume’s Dec. 33. To overcome the presumption, it is necessary to set forth a suffi- cient reason, in order to shew that the intercourse did cease beyond the period of gestation. Ibid. - LIEN, OR RIGHT OF RETENTION FOR WAGES. 139 CHAPTER XIX. LIEN, OR RIGHT OF RETENTION FOR WAGES. 529. Retention is a right of withholding a debt due to, or of retaining moveable property of a debtor, until the claim of his creditor having the retention, be paid, or otherwise secured in payment. It is not admitted in any case where compensa- tion can be pleaded. Ersk. 3. 4. 20. The possession must be lawful ; not acquired by fraud; nor by a void contract; nor by informal diligence; nor by mere accident. Possession of a confidential mature will not ground retention. Bell's Prin. 4 Ed. s. 1413, 1414. The right of retention terminates with the loss of possession, unless possession is terminated by undue means, s. 1415. 530. Domestic Servants. The property entrusted by the master to a servant, transfers no right to the latter, and con- sequently there can be no retention for wages or arrears of wages. Bell's Prin, s. 1410, et seq. ; 2 Bell's Com. 138, Pear- son, 9th Nov. 1672. 531. The master, however, may retain the servant's wages, until the property entrusted to the latter has been accounted for. -- 532. Workmen have no right of retention for wages over goods manufactured by them within the master's premises; but if the goods be delivered to the workman, to be manufac- tured or repaired in his own premises, then they may be re- tained for payment of the labour. Ersk. 3. 4. 21, Harper, 27th Jan. 1791, Mor. 2666; Leely, 30th July 1752, Mor. 2660; 1 Bell's Illust. 452, for the case of Hartly v. Heatch- cock, and p. 458 for Bevan v. Waters ; Patton, 12th June, 1833. 533. A person employed to cut wood, under the superinten- dence of the manager of the employer, who had not actual possession of the wood, was found to have no retention for payment of his wages. Callum, 20th Dec. 1822, 2 S. D. 102, Wilson's App. Cas. 399. 534. Clerks,—If a clerk be employed to manage money 14() A R RESTMENT OF WAGES, matters, he cannot, on his master's bankruptcy, hold the money against the master's creditors, and insist on setting off his wages, or debts otherwise due to him, as a debit; nor can he set off guarantees undertaken by him on his master's ac- count, though he may set off disbursements, which properly form a matter of accounting. 2 Bell's Com. 138; Burns v. Bruce, 27th May 1799, Hume's Dec. 29. 535. Where a clerk leaves his situation, and is called on by his employers to restore the monies collected by him while in their employ, when salary to a greater amount is al- leged by him to be due, they must proceed against him by . an action of count and reckoning. M*Allan v. Cockburn, 19th May 1837. 536. But if he, after leaving his employers, continue to col- lect accounts without authority, he will be guilty of an illegal and fraudulent act, which will justify summary proceedings, such as would be competent in the case of an admitted spul- zie, or a fraud of the nature of a spulzie, to have the money collected paid over to the master, according to the maxim, spoliatus ante omnia restituendus. M*Allan, ut supra. 537. An agent cannot shelter himself from paying over to his principal, money which has come to his hands on account of the principal, under a plea, that the transaction in respect of which the money was paid was unlawful, because the only inquiry in such a case would be, Did the agent receive the money, and on whose account did he receive it? Paley, 103. CHAPTER XX. AR RESTMENT OF WAGES. 538. The wages of domestic servants are held to be ali- mentary, in order to provide clothing, and other necessaries, to enable them to discharge their contract in a proper man- mer; but the excess is not alimentary, and therefore may be arrested for their debts. Ersk. 3. 6. 7. ATR RESTMENT OF WAGES, i4 i 539. By the statute, 1 Vict. c. 41, s. 7, it is declared, that the wages of labourers and manufacturers shall, so far as necessary for their subsistence, be deemed alimentary, in like manner as servant's wages, and other alimentary funds, and not liable to arrestment. This statute does no more than declare, what is already well known law, that an alimentary fund is not arrestable, but only what is in excess of aliment. Sheriff M*Laurin, in his Digest of the Small Debt Act, says that “Sheriffs might do well, in their respective courts, to fix a uniform sum in cases of workmen, with and without fami- lies, within which they shall hold the wages not arrestable. If this was once understood, masters would pay the amount under that scale, and retain the surplus for the creditor, leav- ing it to the servantin the action of forthcoming to shew that a still greater sum should be allowed him, from the surplus, under the particular circumstances. At present the whole discretion and risk as to the line between the alimentary and the surplus fund is placed on the master, who will be inclined to retain the whole, until the decision of the court is obtain- ed, under the action of forthcoming, and so no advantage has been gained by the very vague clause of the act.” In the case of Shanks v. Thomson, 11th July 1838, Jurist, regard- ing the arrestment of workmen's wages, the Lord Ordinary in a note to his judgment says, “What is the legal right of the operative under the late statute, which declares the wages of the defenders not to be arrestable, in so far as elementary P It appears very difficult to lay down any general rule as to what shall be held a fair and reasonable amount of aliment in all cases. In Lanarkshire, it is said that 12s. a week is adopted as a universal rule of modification as to all artizans; while, in Renfrewshire, a certain proportion or per centage of the wages is stated to be held as alimentary. It is rather thought, that neither of these principles ought to be adopted as an unvarying rule. But, 1. the Lord Ordinary is certain- ly disposed to think that 12s. per week should, in these times, be held as the minimum aliment, to be modified to any artizan having the subsistence, rent, and necessaries of a family to provide in a populous town, which is the seat of manufac- tures. 2. In so far as wages exceed 12s. per week, the Lord 142 AR RESTMENT OF WAGES. Ordinary would not even in that case hold the whole surplus not alimentary and arrestable, because it is plain that work- men of superior skill (just like men attached to scientific or literary labour, in other departments of industry,) very reason- ably require a greater allowance for the support of their fami- lies, than operatives in the very humblest class. On the faith of their earnings, superior workmen may have taken houses of higher rent, or engaged domestic servants, or pro- vided clothes to their families on a different scale from the humbler operative. Hence, as to workmen earning wages, the Lord Ordinary would be disposed, quoad the excess, to adopt the Renfrewshire principle, and to hold a certain part of that surplus as alimentary, and a certain part as arrestable. Perhaps it would not be too severe or unreasonable, in cases of this description, to divide the surplus, and to hold 50 per cent. of the surplus as alimentary, and 50 per cent as arrest- able. In this way, if an artizan earned 20s. a week, 4s. would be arrestable ; and if he earned 30s. even 9s. would be arrestable. Probably these proportions may be varied, on hearing counsel. The proportion is suggested as a matter of discussion when the case comes before the court.” The case unfortunately was not in shape when it came before the court, to admit their Lordships to decide this very important point. (See Addenda.) 540. To withhold, in consequence of an arrestment, the whole weekly wages of a workman, may be considered as an at- tempt to force the servant to abandon his contract. An aban- donment, under such circumstances, might not, in the eye of the law, justify measures at the instance of the master, to enforce implement of their agreement. But if the arrest- ments were procured by the servant in order to void his con- tract, he cannot succeed, for no man can profit by his own fraud. Parties aiding him in such deceit, would be liable in damages. See Chap. X. 541. The salary of a clerk may be arrested so far as not required for his decent support. Millar, 11th July 1827, 5 S. D. 926; Mº Intyre, 29th May 1833, 11 S. D. 658. Where a clerk had granted a disposition, omnium bonorum, AR RESTMENT OF WAGF.S. - 143 to his creditors, they could not attach the salary, but only the excess. Boag, 9th July 1668, 1 Stair's Decisions, 550. 542. The arrears of salary, or of wages, may be attached by arrestment. 1 Bell's Com. 130. 543. Persons furnishing subsistence to a servant, would be preferred, in a competition with other arresters, on the wages of the year, for which the subsistence was given; but not for that of a former year. I Bell's Com. 130. 544. The wearing clothes of any servant, or such working tools as are necessary for the exercise of his calling, cannot be arrested, but an excess of tools can be attached. This has been decided in cases of Cessio. Ersk. 4. 3. 27. foot note. 545. Arrestment is not the proper diligence for attaching effects in the hands of a clerk, for the debt of his employer. Burns v. Bruce, &c. 27th Feb. 1799, Hume's Dec. 29. 546. By the 1 and 2 Pict. c. 114, s. 22, arrestments pre- scribe in three years, instead of five as formerly; and under the Small Debt Act they fall in three months, unless renewed. 547. Arrestments are often attempted to be put an end to, by concerted measures between the master and the servant, which are discreditable and criminal. The most usual are, either that the servant deserts from his master shortly before the termination of the engagement; or, wilfully disobeys his master in presence of fellow-servants, and is dismissed ; or, the servant furnishes to the master receipts of different dates, prior to that of the arrestment, bearing a small balance due to him. Under a furthcoming, the defence is either deser- tion, dismissal, or a mere balance of wages unpaid. In all cases where these defences are offered, the usual course is to subject the master and the servant to a rigid examination on oath. If the arrester can afterwards satisfactorily prove that the statements on oath were not true, then the parties may be tried criminally for perjury. 144 TRIENNIAL PRESCRIPTION. CHAPTER X. XI. TRIENNIAL PRESCRIPTION. 548. Within three years from the term of leaving service, wages, if disputed, may be proved by witnesses to have been earned; but after the three years, the claim must then be supported, either by an acknowledgment from the debtor, that the wages are unpaid ; or by his oath. 1579, c. 83. Sala- ries payable to clerks and apprentices, and wages to work- men, fall within the statute. In England, if a servant leaves his employer for a considerable time, the legal presumption is, that all the wages have been paid to him. Sellon, 4 Car. and Pay. 81. 549. The wages of each year runs a separate course of prescription. Ersk. 3. 7. 17. 550. Where the wages are not denied, or payment of them not alleged, prescription is elided, although the claim be made more than three years after leaving the service. Ritchie v. Little, 15th Jan. 1836, Jurist. It was also found not to apply, in a case of the following nature. A party, in needy circumstances, was taken when very young into the family of her grandfather. As soon as she was fit, she gave to him and her grandmother during their lives, her assistance as a herd for their cattle ; and they, on the other hand, recog- mised the services with the gift of a cow. Her uncle resided along with her in family with his parents. After their death she remained with this uncle, who was unmarried, till she was twenty-five years of age, acting as a menial servant and house- keeper, insomuch that at times, and more particularly for the last two or three years, he kept no other servant. On her marriage she claimed wages for the six preceding years, at the rate of £6 per annum. In defence it was maintained, that she had not been engaged or treated as an ordinary ser- vant; that, from motives of kindness to her as a relation, she had been received into family, and suitably clothed, maintain- ed, and educated; that, in return for this, she had superin- tended his servants, and taken charge of the household eco- TRHENNIAL PRESCRIPTION. 145 nomy, more especially when he was from home. In addition, he claimed board and clothing to her, for eight years after his father's death, at the rate of £5 a-year; but he never alleged any payment in name of wages. The Sheriff found, that as the uncle had not averred, or offered to prove, that he paid her for such services, neither alleged that she promised to serve him gratuitously, the legal and fair presumption of law there- fore was, that wages were to be paid. He found the random claim for board not only irrelevant, but that it bore upon the face of it marks of improbability and imposition, and decerned for the wages at the rate of £4 yearly. In a suspension of the decree, the Lord Ordinary found that the triennial pre- scription was inapplicable to the circumstances of the case, “in respect payment is not alleged.” M*Naughton v. M“Naughton, 1st July 1813, Hume's Dec. 396. See also Smellie v. Gillespie, 23d Nov. 1833, Jurist. 551. All claims for remuneration, though no term of service be named, nor the rate of wages fixed, before or subsequent to the servant's leaving, fall within the triennial prescription. In the case of Shepherd v. Meldrum, 23d June 1812, Hume's Dec. 394, where the grand-daughter, in the absence of a spe- cial bargain for any particular rate of wages, claimed eleven years' wages for services rendered to her grandfather preced- ing his death, and a sum of £5 for mournings, the represen- tatives successfully pleaded prescription, and she was only al- lowed wages at the rate of £6 for the three years preceding his death,--a sum of board wages,—and £5 for mournings. Baron Hume, in reference to that case, seems to think it open to difference of opinion,-‘‘Whether the triennial prescription applies to such a case. Where, as in the present instance, the defender admits the course of service libelled, and does not allege that wages have been paid, the inference of the obliga- tion to pay wages, though not conditional, arises straightway of itself out of the admitted fact. The statute excluding pa- role proof after three years, does not stand in the pursuer's way in such a case, for she has no need of a proof by testi- mony of witnesses or otherwise, to establish her claim of debt. It rather lies with the defender to establish, by evidence on his part, in due course of law, his defence against the claim of -- K. # 46 TRIENNIAL PRESCRIPTION. wages, whether it be that the pursuer agreed to serve for no- thing, or stipulated for meat and clothes only, or for wages at some low and unusual rate. If he fail to bring evidence of any of these things, the law cannot assume a presumption of his payment of competent wages: a defence he has disclaimed by his whole course of pleading.” But in the cases of Smellie v. Miller, 17th Nov. 1835, and Smellie v. Cochran, 25th Feb. 1835, Jurist, where there were no stipulation for wages, and where the claim was made more than three years after the services had ceased,—the triennial prescription was pleaded by way of defence. To which the servant replied, that it was not libelled, that a specific fee was fixed as a remuneration for the services, nor was the time settled at which the wages were to be payable. But the Lord Ordinary saw nothing in the words or purview of the statute, nor in the authority of the text writers, nor in the decision of the court, which led him to think that either of these circumstances affected the plea of prescription. As neither the constitution nor the substance of the debt were admitted, the only competent proof was the defender's writ or oath. 552. The term of prescription recognised by the law of the master's domicile or place of service, is to be applied, in oppo- sition to that of the locus contractus. Robertson v. Annandale, 10th Dec. 1749, 1 Cr. App. Cas. 293 ; Tait on Evid. 461. 553. The annus deliberandi in favour of the heir of the deceased master, is not discounted, and does not stop the prescription of wages. Argyll v. Campbell, 27th July 1731, Mor. 11, 102. 554. Neither does minority. Brodie v. Brodie, 28th Jan. 1709, Mov. 11,150. Nor does absence. Mº Ghie v. Tinkler, 17th Dec. 1776, Mor. 11,112. See the case of Haddington v. Richardson, 16th June 1824, Shaw's App. Cas., where the debts of an undischarged bankrupt were held not extin- guished by his residence abroad, where he died leaving a fortune. 555. The absence of the master, in the case of servants in husbandry, and certain classes of workmen, is now remedied by 4 Geo. IV. c. 34, s. 4, which enables them to summon the TRIENNIAL PRESCRIPTION. 147 manager or agent of the master, for payment of their wages, and recover out of the master's goods by distress and sale. 556. It has been more than once found, that waiters in a tavern, or the like, who are liable to account for their intro- missions to their masters, are presumed in law to have ac- counted at short intervals, and to have fitted their accounts before being allowed to leave their situations. In such cases the burden is thrown on the master to prove that the sum claimed by him is still due. Tait's Evid. 467. It makes no difference, whether the party is a domestic servant within the house, or resides out of the house and receives a weekly fee. Irvine v. Falconer, 25th Nov. 1671, Mor. 11,424; Morrison v. Bruce, Feb. 1730. The same rule is observed in England. I Ch. Blacks. 429. 557. A servant receiving money from time to time, and daily accounting therefor, without keeping notes or vouchers of settlement, is presumed to have regularly accounted. Evans v. Birch, 3 Camp. 10. 558. After the triennial prescription had run, an action of count and reckoning was brought by a master against the re- presentatives of a drawer or waiter in his tavern, and against the cautioner, for wine intromitted with by the deceased. It was offered to be proved by the cautioner's oath, that he heard the deceased acknowledge that he was owing the mas- ter the sum libelled ; but it was found not relevant to do so, in respect it would not be probative against the representa- tives, and would oblige the cautioner to pay without relief. PHerdman v. Borthwick, 9th Nov. 1699, Mor. 2078. 559. Where the servant had not accounted for his intro- missions for years, he was, in a count and reckoning, allowed for these years deduction of his salary as an item of discharge. Smith v. Winton, 3d Dec. 1714, Mor. 11,096. 148 MANDATE. CHAPTER XXII. MANDATE. 560. A mandate is a contract, by which one person em- ploys another to do a lawful thing for him, in regard to his affairs, or in some department of them; of which duty the person accepts, and agrees to act. The employer is called the mandate or principal ; and the person employed the mandatory, sometimes he is called the factor or agent. Ersk. 3. 3. 31-33. 1. Contract of Mandatory. 561. A person when acting for another, either under a general or special authority, delegated by the latter, is bound, if he be recompensed, to exercise that exact degree of dili- gence and care usually observed in the business to be tran- sacted, and must repair the damage arising from his neglect. Where he is acting gratuitously, he must bestow the same attention and prudence that he would exercise in his own affairs; he is liable for any loss that will arise from the exer- cise of less care. See Mark v. Sommerville, 27th May 1800, and other cases; Hume's Dec. 320 to 326 ; Ersk. 3. 3. 32–36. 562. Where no instructions are given by the master to the agent empowered to transact, fidelity and prudence are im- plied; but where instructions are given, then they must be strictly obeyed. Ersk. ut supra. 563. All monies and property passing into the hands of the agent or servant, by the power delegated to him, is not transferred, nor can it be used by him, even temporarily. Paley, 189–211. 564. The agent or servant is liable in the consequences, if he shall exceed the authority given to him, unless his actings be ratified by the master. Paley, ut supra. 565. Whatever is done by the agent or servant within the scope of his authority, binds the master; this liability flows from the power so delegated, 1 Ch. Blacks. 430. EXPRESS MAN DATE. 149 2. Eacpress Mandate. 566. An express mandate is constituted by words or writing. For example, by a letter, duly subscribed by the master, and addressed to the agent or servant, empowering him to purchase or procure orders for goods; or to accept, draw, and indorse bills for the master; or verbally, by authorizing the agent or servant to receive cash and grant acquittances in his name. Paley, 155–161; Ersk. 3. 3. 33. 567. An express mandate may be proved by writing, or by witnesses. 3. Implied Mandate. 568. An implied authority is not created by either of the modes alluded to, but is left to be implied from the conduct of the master. Ersk. 3. 3. 33. - 569. If a master be in the habit of paying ready money to his merchants and tradesmen for goods furnished to his household, he will not be answerable for goods given in his name on credit to the servant without a written authority. 1 Ch. Blacks. 431; 2 Hutch. 161. Nor will he be liable where he is in the habit of paying ready money for articles furnished in certain quantities to his family, if the tradesman suffer other goods of the same sort to be delivered without informing the master, or satisfying himself that they were for the master's use. Pearce v. Rogers, 3 Esp. 214. Nor will a master be liable for spirituous liquors ordered in his name by his butler, unless he had on former occasions paid for goods so ordered, or there be evidence to shew that the butler had authority from the master for so doing. Maunder v. Conyers, 2 Stark, 281. Nor will a master be liable, where, unknown to him, the servant employs a tradesman to do work, who has never before been employed by the master, and the trades- man does it without communicating with the master, though it be the property of the latter. So found in the case of Hiscot v. Greenwood, 4 Esp. 174, where the servant took out the carriage unknown to the master, and by his careless- ness got it injured, and ordered it to be repaired without ac- quainting him, which was done by the tradesman without any 150 MANDATE. direction from the master, or communicating with him on the subject. 570. Without any previous dealing on credit sanctioned by the master, the party who trusts the servant, does so at his own peril, and must resort to the servant's responsibility. Paley, 164; Inches v. Elder, 22d Nov. 1793, Hume's Dec. 322. 571. But if the goods so brought were used by the master, he knowing that they were obtained on his credit, he will be liable. Paley, 164–5. Or knowing the furnishings to be made, and did not give his servant money to pay them. Miller v. Hamilton, 5 Car. and Pay. 433. 572. Where the servant is sometimes sent for goods on trust, and sometimes to purchase with money, the master is liable to the tradesman, who cannot know when the servant comes of his own authority, and when by his master's com- mand ; or, when with or without the money; and has no con- trol over him, whether he shall carry the goods home, or dispose of them otherwise. 2 Hutch. 165; 1 Ch. Blacks. 431 ; Paley, 162–3. 573. If a master assents to his servant dealing on credit at all, he will be liable for the value of the goods, although he may furnish money to the servant to pay them, which the latter neglects to do. Oliver v. Grieve, 8th June 1792, Hume's Dec. 319. Where a master kept a book with the servant, his coachman, in which the goods ordered by the latter and the sums paid to him were entered, but the ad- vances not stated specifically for the articles bought, but made generally from time to time,—Lord Ellenborough said, that “if the goods were taken up, and the money given afterwards to the servant to pay, I am inclined to think the master liable, if the servant have not paid over the money, for he has given the servant authority to take up goods upon credit. It is, therefore, material to see when the money was given. If the servant were always in cash beforehand to pay for the goods, the master is not liable, as he never authorized him to pledge his credit; but, if the servant were not so in cash, he gave him a right to take up goods on ere- dit; and I think he will be liable, as the servant has not paid IMPLIED MAN DATE, 15 É the plaintiff, though he may have received money from the defendant, his master.” . A verdict was accordingly given against the master. Rusby v. Scarlett, 3 Esp. 76; Paley, 166; Dewar v. Nairne, 22d June 1804, Hume’s Dec. 340; see also 5 Car. and Pay. 433. Medicines furnished to a servant by a surgeon, who kept an open account with the master, were presumed to have been furnished with the lat- ter's knowledge and consent. Mitchell v. Gainer, 23d July 1755, Mor. 11,605. 574. If the master gave money to the servant beforehand to pay for articles required for his household, he is not liable. See 573. If he gives the money in advance, and the servant only pays the merchant whenever the goods amount to a cer- tain small sum, then the tradesman, if he permits the account to run to a considerable arrear, cannot recover against the master; for, by departing from the usual mode of dealing, he trusted the servant and not the master. Paley, 165. 575. Where a party has dealt with a tradesman on credit, it is not sufficient to give notice to the tradesman's servant, that he means to pay ready money in future; it must be given to the tradesman himself. Greatland v. Freeman, 3 Esp. 85. • 576. Where articles are furnished for the use of a master, though the servant by agreement be obliged to provide them, the master is liable to the tradesman who furnishes them, Precions v. Abel, 1 Esp. 350, unless the person furnishing such articles knew that they were had on the servant's own account, and not his master's. Rinsell v. Sampayo, 1 C. and P. 254. - 577. If the servant be usually employed to pledge goods or borrow money, and he pledge his master's goods for money, the lender may sue the master. Paley, 162. 578. Where trustees employed a bankrupt as manager of a coal pit, which he had conveyed to them for behoof of creditors, and where he had been in the habit of accepting, drawing, and indorsing bills in his own individual name in relation to it; held, that the trustees were liable for payment of one of these bills, although their name did not appear upon it. Murray, &c. 28th Nov. 1827, 6 S. D. 147. 152 - MANIDATE, 4. General Mandate. 579. A general mandate or power delegated by the master, empowers the servant to act generally in all matters connect- ed with the department of business in which he is so employ- ed; and for all acts of the servant, under such a power, the master is liable. I Ch. Blacks. 430 ; Paley, 170–199. But if this general authority should be liable to be determined for a time by any particular orders or instructions, there is an end to the powers of the servant, and the dealing must then be with the master. Paley, 205. The servants to whom such general powers are delegated, are factors, managers, &c. 5. Special Mandate. 580. A special mandate or power only authorizes the ser- vant to transact the particular piece of business delegated to him by the master. The mandate is limited, and does not bind the master, if the powers and instructions given be ex- ceeded. I Ch. Blacks. 430. If a master entrust his servant to sell a horse, and gives no directions respecting the warranty, he is bound by the servant's warranty, on the principle that every thing is embraced in an authority which is necessary to effectuate the sale in the best manner. Paley, 210. 581. Whether the servant has a general or only a special authority, is properly a question of evidence. Paley, ut supra. 582. A mandate falls, 1. By performance of the commis- sion. 2. By the master withdrawing, or the servant renoun- cing it. And 3. By the death of the master. Ersk. ut supra. 6. Praepositura in negotiis domesticis. 583. Certain departments of domestic enonomy fall natu- rally under the wife's management; and if she be dead, then they devolve on the daughter managing her father's house. The obligation from the husband, or father, is either tacit or express. The former is a presumed mandate, and she can, in virtue thereof, contract for furnishings, &c. to the family; the latter extends to transactions unconnected with the manage- ment of the family, such as trade. Bell’s Prin. 4th Ed. 8. LIABILITIES OF MASTERS, 153 1566–7. Under the tacit mandate, she can engage servants; and the contract binds the husband or parent. When any part of the contract with the servant is to be kept secret, it is not binding. Accordingly Sheriff Barclay, where a wife agreed to give a fixed sum of money as wages, to a female ser- vant, which was at first declined, but agreed to on getting at the end of her engagement, a certain quantity of wool, which both parties stipulated should be kept from the knowledge of the husband, held that that part of the contract so to be kept secret was not binding on the husband, the wife having ex- ceeded the limits of her mandate. (Perth Sh. Court, 1840.) CHAP. XXIII. LIABILITIES OF MASTERS FOR SERVANTS, 1. Of Masters. 584. When a master employs a servant to perform certain duties, the former becomes civilly responsible for the care and diligence of the latter, to those who make use of him in matters within the contract, and for all neglects or miscon- duct within the scope of the engagement. Though this rule may sometimes be apparently severe on an innocent person, yet it is founded on principles of public policy, in order to in- duce masters to be careful in the choice of their servants, upon whom both their own security, and that of others, so greatly depends. Paley, 294 ; Ersk. 3. 1. 15. 585. The damage must arise from the way and manner of doing the master's work, and not from some cause unconnect- ed with the work itself. Keith v. Kerr, 10th June 1812. See the Judges' opinions of the report of that case, as ex- pressed in Baird v. Hamilton, 4th June 1826, 4 S. D. 790. 586. Though the injury be not occasioned by the person immediately employed, but by another whom he employs under him, and with whom he contracts for the performance of what he has undertaken, yet the responsibility of the first 154 LIABILITIES OF MASTERS, employer reaches through all the stages of the service. Paley, 296. See 3 Deas' Reports, 163; Ersk. 3. 1. 15. 587. If a servant, in driving his master's horse and cart, gets drunk in the journey, and rides down or otherwise injures an individual; or, if he drives a horse without proper harness, and is unable to control it, whereby an accident occurs; or, if he does not use proper means to prevent his horse from bolting or doing injury in a town or market-place, the master is liable. Mº Laren, 10th Dec. 1827, 4 Mur. Rep. 384– 388 ; Baird, 4th July 1826, 4 S. D. 790. If a servant, driv- ing his master's cart on the latter's business, make a detour from the direct road for some purposes of his own, the mas- ter is answerable for any injury occasioned by his neglect in driving while so out of the road. Joel v. Morrison, 6 C. and P. 501. Where a party hired horses, which he put into his own carriage, and the horse-hirer also provided the driver, by whom, in the course of driving, damage was done, the horse- hirer was held liable, but not the owner of the carriage. Laugher, 5 B. and C. 547. But the master will not be liable for an act of wantonness. Accordingly, where a coach- man whipped the horses of another coach, and caused damage, it was left to the jury to say, whether the act of the coachman was a wanton act to effect a purpose of his own, in which case the master would not be liable; or, whether it was done injudiciously, in pursuance of his employment, in which case the master would be liable. Croft, 4 B. and A. 590. 588. A dangerous opening in a building, either in a street or common stair, causing accidents, is considered in the light of a highway, and subjects the master in damages. But if the opening be used for the convenience of various trades- men employed about the building, the party last using it is bound to guard it at night, otherwise he is liable. Milne v. Smith, 6th July 1814, 2 Dow, 390. The proprietor of a house was made liable in damages to a party injured, in con- sequence of an insufficient fence around the building ; but he was held entitled to relief from the builder, so far as occasion- ed by his not fulfilling the contract. Binnie, 28th June 1825, 4 S. D. 122. A master is chargeable, if any of his workmen throw out rubbish or lay down materials on the street, or LIABILITIES OF MASTERS. 15; common highway, to the damage of any individual, or the common nuisance of the public. I Ch. Blacks. 431; Tait, voce Damages. 589. Where several horses from a neighbouring farm broke into a farmer's wheat field, his servants chased them out by driving them across a fence, over which they had come, and one of them, in leaping, fell on a stake and was killed,—it was held that he was not liable in reparation, there being no ap- pearance of malice, or intention to injure the horse, and the injury being accidental. The plea, that the farmer ought to have poinded the horses for trespassing, was disregarded. Heriot, 6th Dec. 1837, 6 S. D. 211; Cumming, 12th Feb. 1840, Jurist. See 261, 603, and 607. 590. Carriers are not liable for the loss of parcels irregular- ly taken up by their servants or drivers on the road, for their own gain. Howie, 12th June 1824, 3 S. D. 135 ; 26th June 1825, 4 S. D. 752 ; Butler, 2 C. and P. 613. 591. Proprietors of a stage coach are liable in damages for injury done to passengers, by negligence or improper conduct on the part of themselves or of their servants; and although it may be relevant to diminish damages, that the party injur- ed excited the coachman to overdrive, yet it will not to liberate the proprietors. Allan, 10th July 1829, 2 Mur. Rep. 158. 592. The lessees of a stone quarry were found liable in damages to one of their own servants, who sustained a severe bodily injury, occasioned by the blasting of a rock without due precaution by their servants. Sword v. Cameron and Galletely, 13th Feb. 1839, S. D. B. And a master and his foreman received twelve months' imprisonment, where a person was killed by the blowing of a rock, in one of the Dundee docks; it appearing in evidence that the workmen were not provided with sufficient materials for preventing the rock from flying. Perth Circuit, 1836. 593. A master and his servant were found liable in dama- ges, for killing a dog without cause. The master held a val- uable stock of sheep, and gave his servant instructions to des- troy every dog found upon the property, who shot the dog in question; and, in defence, it was pleaded that the practice of killing dogs prevailed in another part of the country, which 156 LIABILITIES OF MASTER.S. the Court disregarded. It was held, If a dog be known to be a sheep killer, and found on the property of a gentleman having sheep, it is not necessary to wait till he be near his prey before he is killed. But the case is different where it is not the character of the dog. It is always a question of de- gree, what entitles the person to prevent the apprehended injury. Grant v. Barclay, 8th July 1830, 5 Mur. Rep. 134. 594. Farmers and their servants may follow a fox on en- closed grounds, for the purpose of destroying him, without being guilty of a trespass, though this is not the case when fol- lowing one for amusement. Colquhoun v. Buchanan, 6th Aug. 1785, Mor. 4997. 595. Damages were awarded against the proprietor of a watch-dog accustomed to be chained, which, when loose, had bitten a passenger, though the latter had previously provoked the dog when confined. Brown, 26th June 1824, 3 S. D. 187. A similar decision was given where a passenger was bitten, who had a justifiable cause for passing by the place where the dog was tied up, close to which was a painted board, “beware of the dog.” Sarch, 4 C. and P. 297. If a dog be accustomed to bite, it will be no defence to an action of da- mages, that it does not belong to the defender; it will be sufficient if he harbours it, or allows it to resort to his pre- mises. M*Kone, 5 C. and P. l. 596. If the waiter of a tavern sell a man bad wine, whereby his health is injured, he may bring his action against the master; for although the latter did not expressly order the servant to sell it to that person in particular, yet permitting him to draw and sell it at all, is implied by a general com- mand. 1 Ch. Blacks. 430. - 597. In the same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. If I pay money to a banker's clerk, the banker is answerable for it; if I pay it to a clergyman's or a physician's servant, whose usual business it is not to re- ceive money for his master, and he embezzles it, I must pay it over again. 1 Ch. Blacks. 430. 598. Where turnpike roads were left in an improper state, So as to occasion personal injury to persons passing along LIABILITIES OF MASTERS. 157 them, in such cases the road trustees were found liable in damages. Aitken, 5th Jan. 1826, 14 S. D. B. 204; M. Lach- tan, 4 Mur. Rep. 216–568. But in the recent case of Find- tater v. Duncan, 23d August 1839, the House of Lords held, that the funds of a road-trust could not be made liable for damages occasioned by persons employed by the trustees, or the servants of such persons. The trustees themselves, in the ordinary case, would not be personally liable for such damage, although cases might occur where, either by going beyond their proper duty, or by becoming actors in the tran- saction, they would incur a personal responsibility. Connal's Sketch of the Law, 1838–39. 599. If a servant, when employed about his master's work, were to commit an assault, or do any other wanton mischief which had no connection with the work about which he was employed, the master could not be answerable. M'Laren, 10th Dec. 1827, 4 Mur. Rep. 384. 600. A master was found not liable for damage done by colliers in his employ, when they were disengaged in the work- ing of the coal. Young, 16th June 1832, 10 S. D. B. 666. 601. Where a servant, without special orders from his mas- ter, does any act from which damage may arise to third par- ties, it will depend on a review of all the circumstances how far the master shall, by any general orders, be held answer- able for the act from which the damage arose. If no orders were given, either special or general, the master is not liable. Linwood v. Hathorn, 14th May 1817, 1 Sh. App. Cas. In Keith's case, 10th June 1812, the master there gave a gene- ral order to clear the moss, and was made responsible for the way the workmen performed the work. See 585. 602. A master, interdicted from proceeding with certain operations, was found not responsible for a breach of the inter- dict committed by his servant in his absence, and contrary to his orders. Roadburgh, 10th Feb. 1825, 1 Sh. App. Cas. 1. 603. If a servant takes his master's cart without leave, at a time when it is not required for business, and drives it about solely for his own purposes, the master will not be answer- able for any injury he may do. Joel v. Morrison, 6 C. and P. 501. See 261. . - #58 LiAB II,ITIES OF SERVANTS, 604. Where a female servant, whose duty it was to keep good fires, made a fire of straw and furze in a grate for the purpose of cleaning the chimney, held, that the master was not liable for the effect of a fire occasioned by such miscon- duct, as the act was not within the general scope of the servant's duty, nor was it directed by the express command of the mas- ter. M'Kenzie v. M'Leod, 10 Bing. 385. But if the servant had kept the master's fire so negligently as to set fire to his neighbour's house, he would be liable, because the negligence fell within the lines of the service. 2. The Servant's Liability. 605. Every servant is answerable for his negligence or wrongful act; and although the master may, in the first in- stance, be compelled by law to repair the damage done, the servant is nevertheless bound to relieve the employer. Ersk. 3. 3. 16. But he will not be obliged to do so, if the act from which the damage arose was performed in conse- quence of wrong directions given by the master. Kerr, 28th June 1828, 6 S. D. 1029. 606. A servant is personally responsible if he exceeds the instructions or command of his master in matters lawful; or if he obeys his master in matters that are unlawful, such as to commit fraud, or steal. Paley, 398, 1 Alison, 672. 607. When horses or cattle of a farmer break into, or stray among, the crop and stock of his neighbour, the latter's ser- vants are entitled and bound to use ordinary and reasonable compulsion to drive them away; and if any accident happen to the strayed animals from the means used, it is a casualty inseparable from the keeping and feeding of cattle, which the owner must take upon himself. Cumming v. Turnbull, 12th Feb. 1840, Jurist. See 261, 589, 603. 608. The mere refusal by a servant to deliver goods, the property of the party requiring them, will not render the ser- vant personally liable, if the refusal be qualified by a declara- tion that he cannot deliver them without the authority of his master. Alea’ander v. Southey, 5 B. and A. 247. 609. A party who, in the character of a servant to a debtor, receives money from his master to discharge the debt, PROCED URE UNIDER THE COMMON LAW. 159 is not liable to be sued by the creditor as for money received to his use, because he did not act for the creditor. Howell v. Batt, 2 N. and M. 381. 610. A servant is answerable for his criminal acts, as, for example, for assault or any other mischief which had no con- nection with his master’s work, or where he rides down and kills a person by careless driving. CHAPTER XXIV. DESERTION. 1. Procedure under the Common Law. 611. If a servant be dismissed by his master, or, if the former leaves his service from a proper cause, he cannot be legally forced to return and serve out the engagement. But if the servant wilfully desert from his employment, summary measures at common law are competent for bringing him back to complete his contract. Such procedure is sanctioned by usage, and as a matter of public police. Although it may sometimes be a harsh step to adopt, yet it may occasionally be requisite, because a workman by deserting may do great injury to his master, such as he has not the means of repair- ing. But the remedy ought never to be pushed further than the necessity of the case actually requires. M'Lellan v. Gen- tle, 9th July 1825; Anderson, 24th Jan. 1837; Raeburn v. Reid, 4th June 1824, Bell's Prin. s. 28 and 29. The expense of the procedure falls upon the servant, because the steps were rendered necessary by his wrongful act. 612. The complaint is addressed to the Sheriff or Justices; it must set forth the nature of the contract, the date of enter- ing to the service, and that of the desertion; on which a war- rant is granted to apprehend and bring the servant for ex- amination. If he admits and declares before the Judge, that the facts stated in the complaint are true, but offers no de- 160 DESERTION. fence, a warrant is then granted, ordaining him to return to his work; failing his doing so, to imprison him till he find caution, under a suitable penalty, to return to his service, and continue in it during the remainder of the engagement. Reid v. Raeburn, ut supra. During imprisonment, the master must aliment him; for this reason, he is a prisoner confined for a civil cause, and therefore must be alimented by the in- carcerator; criminal prisoners again are alimented by their incarcerator, the public. 613. But if the servant does not admit the facts stated in the application, or if he offers a defence, he is then appointed to lodge answers, and the case proceeds by proof or other- wise in the usual summary form, on a closed record. In the meantime, however, the servant is put under suitable caution to appear at all diets of Court, when required. Tait, voce Imprisonment, J. P. In giving judgment, care must be ta- ken that it does not proceed upon grounds different from, and inconsistent with, those set forth in the complaint. 614. When parties are ordained to lead evidence of their respective averments, the master is not entitled to introduce and lead evidence of the general conduct and habits of the servant when out of his premises, because the point in dis- pute, and to be proved, is, Was there an agreement, and was it broken by desertion ? Gunn, 21st July 1835, 13 S. D. B, 1142. 615. If, under the application for desertion, parties be at issue as to the terms and conditions of their agreement, either in regard to the locality for operations, hours of labour, or du- ration of the contract, which go to shew that the application is intended to force the servant to perform what was not con- templated by the contract, or to impose new duties upon him, the procedure must then be sisted till the matter in dispute be determined in a court of law. It was remarked, in the case of Anderson v. Moon, 24th Jan, 1837, 15 S. D. B. 412, that if it were not so, parties would “meet, as in a civil question, on very unequal footing; for in this crimi- mal, or at least police proceeding, the workman is appre- hended or ordered to appear personally in court, and the very first step is to take his judicial declaration, while the PROCED URE UNDER THE COMMON LAW. 161 master is neither required to appear personally, nor to submit to an examination, nor even to state his pleas in detail, before his opponent is interrogated. It is plain, if this were competent, when it is a matter of dispute what the nature of the engagement is, the master would have a very great and unfair advantage.” Accordingly, a workman hired at fixed weekly wages, and to give fourteen days' notice be- fore leaving, entered his service, but the master thereafter intimated that he would be paid by “the piece ;” the servant then left, was apprehended, and imprisoned for desertion. The Court held the whole proceedings to be illegal, because the servant did not contract by “ the piece.” Matthew v. Glasgow Iron Com. 28th Nov. 1836, 1 Swinton, 393. 616. A workman, residing in the county of S., agreed to serve a manufacturer as “a turn-over printer,” for one year, by missives dated at the works in the adjacent county of L. He entered, and deserted from his service. On a petition by the master to the Sheriff of L., a warrant was granted, in virtue of which, and of a concurrence, the workman was apprehend- ed in the adjoining county and brought before the Sheriff of L. for examination, and thereafter returned to his work; avizandum having been made with the petition. Having again deserted, the petition was, on a new warrant by the Sheriff of L. and letters of supplement, served on the work- man at his dwelling-place in the county of S, and judgment pronounced in absence. A suspension and reduction were brought of the procedure; but the Court of Session held, that the Sheriff of L. had jurisdiction, and that the proceedings under the petition were regular. M'Dougall, 27th June 1833, 11 S. D. B. 795. . 617. The warrant of imprisonment for desertion, must set forth the workman's name and designation, unless where writ- ten on the original petition. Dun v. M'Culloch & Co. 21st Dec. 1837, 1 Swinton, 629. It may be put in execution with- out being extracted. Jack, 11th March 1837, 15 S. D. B. 833. Where the last sheet of the process, wherein the workman was designed “defender,” was given to the jailer as the warrant for detention, it was held a bad warrant, and the party was liberated. It was remarked from the Bench, that the jailer was T. !62 E) ESERTT 6) N. not obliged to read the whole process, had it been lodged with him as the warrant of imprisonment. Dun, ut supra. 618. If the master, instead of enforcing the warrant, were to receive the workman into employ, upon a promise to continue and serve out his engagement, the warrant falls, and cannot be enforced on a second desertion: the desertions being dif- ferent in point of dates. 619. A servant was ordained to return to his service, and continue therein till the term, with certification; and the Sheriff found him liablein the expenses of the application for desertion; held, that the decree could not be extracted, in respect the judg- ment did not contain the word, “and decerns.” It was also held that, notwithstanding of that defect, it was a final judgment, and could be competently advocated. Anderson, 1st June 1836. 620. Where a warrant of imprisonment for desertion was granted, but afterwards abandoned judicially by the master, held that a reduction of the proceedings were competent, as the warrant could be put in execution without being extracted, though no extract had been taken. Jack, 11th March 1837, 15 S. D. B. 833. 621. A workman subscribed an agreement, to the following effect: “I hereby bind and oblige myself to work to you, as a tin and copper Smith, for three years from the date hereof. Terms, piece-work—one-half paid by you to the journeymen in your employ, and subject myself to the rules and regulations of the work. I am, &c.—To Mr. Wm. Drew.” He entered to his service accordingly, and shortly thereafter deserted. On his apprehension he emitted a declaration before the Judge Ordinary, that he made 6s. a-week under the agreement, which was insufficient for his support; since his desertion he had 15s. a-week, and he declined to return and fulfil his contract. He was imprisoned till he should find caution to return to his ser- vice, in terms of the agreement. A bill of suspension and li- beration was brought, on three grounds. 1. That the agree- ment was unilateral, and not holograph or tested. 2. That it was entered into with “Wm. Drew,” whereas the proceedings were in name of certain partners, who alleged that they carried on the business under the firm of “Wm. Drew.” 3. That the warrant of incarceration was illegal, in so far as it in effect PROCEDURE UNDER THE COMMON LAW. 163 compelled the suspender to find caution to implement the whole terms of the agreement under a penalty, though neither penalty mor caution were stipulated in the agreement. The Lord Ordinary granted liberation on caution, but the Court remitted to pass the bill on juratory caution. Smith v. Dewar and others, 21st Nov. 1834, Jurist. See 59 and 60. 622. If a servant engage verbally to serve two years, or eighteen months, and enters his service, it is binding for one year only; but, if the servant at the expiry of the twelve months shall then leave the master's employ, no application on the ground of desertion can be entertained, because all contracts exceeding twelve months must be constituted by writing, and may be resiled from without subjecting the party in damages. See Chap. III. Verbal Contracts. But if the servant enters upon the second year, or upon the six months, he is bound to serve, and may be compelled to do so. Pagans v. Mº Kie, 11th July 1837, 10 Jurist, 90. 623. In a contract of service for a limited time, found not competent, after such period had expired, to grant a summary warrant of imprisonment to compel the servant to make up the days on which he was absent during the stipulated period, no wages having been paid for the time the servant was so ab- sent. Campbell v. Anderson, 6th Dec. 1825, Fac. Coll. 624. Domestic servants forfeit all claim to wages, and are liable in damages, for desertion from their service. Ersk. 3. 3. 6. Hamilton, 9th Dec. 1824, 3 S. D. 379 ; Crawford, 13th March 1822, Shaw's App. Cases. 625. They may also be proceeded against summarily for de- sertion, and imprisoned, till they find caution to return to their service. They may also be similarly pursued for leaving their service at the term, where no proper warning has been given to the master of such an intention. Tait, voce Servant. 626. A workman was apprehended for leaving his employ without giving the previous notice required by the rules of the manufactory; and he was ordained to find caution to return, and serve the number of days required by the said rules, be- fore leaving. Jack and Umpherston v. Kerr, 11th March 1837, Jurist ; Reid v. Raeburn, 4th June 1824, 627. Where a servant enlists, wages are due for the time 164 DESERTION. # served, notwithstanding of the contract; but he cannot be ap- prehended for desertion under his contract of service. See 247. 628. A breach of engagement by a superior artist, or me- chanic, clerk, &c. exposes them to an action of damages, but not to a summary application for imprisonment. Frame, 6th June 1836; Patterson, 17th June 1830. 629. Suppose a servant to succeed to a fortune during the currency of his contract of service, or to a title and property, he would, by leaving his service, be only liable in damages; he could not be apprehended for desertion. Much, however, depends upon the extent of the succession, and the station of life to which it promotes him, &c. Dictum of Lord Gillies, Bookless v. Normand, 20th Nov. 1832, Jurist. 2. Proceedings for Desertion under the Statute, 4 Geo. IV. c. 34, s. 3. 630. The classes of workmen brought under the statute, are, — 1. Any servant in husbandry, 7. Any keelman, 2. artificer, 8. pitman, 3. calico printer, 9. glassman, 4. handicraftsman, ! 0. potter, 5. miner, I l. labourer, or other 6 collier, , person. By the 10 Geo. IV. c. 52, the following manufactures, trades, and occupations, named in the 17 Geo. III. c. 56, are brought within the regulations of the 4 Geo. IV. c. 34. 12. Persons employed in the 18. In the leather, manufacture of hats, 19. fur, 13. In the woollen, 20. hemp, 14. linen, 21. flax, 15. fustian, 22. mohair, and 16. Cotton, 23. silk manufactures, 17. iron, 24. Journeymen dyers. 631. No household servant, or workman following a trade or business different from those above enumerated, fall within the 4 Geo. IV. c. 34. Kitchen v. Shaw, I Neville and Perry's Rep. 791, 7 B. and C. 96–536. And any Justice acting as if PROCEEDINGS UNDER THE STATUTE. 165 they were within the statute, subjects himself in damages. Lancaster v. Greaves, 9 B. and C. 628. 632. The proceedings for desertion under the statute, must first be brought before a Justice of the county, or place where the servant contracted or was employed, or before one within whose jurisdiction he is found; Watson v. Wood, 21st Nov. 1836, 1 Swinton, 340: but no Justice can act in his judicial capacity against his own servant, on a complaint under the statute, made by his steward, manager, or agent, against the servant. 5 Ch. Burns, J. P. 541. 633. The whole procedure under the statute is declared to be strictly criminal, and only subject to review by the High Court of Justiciary. Cooper v. Bell, 13th Feb. 1836, Jurist, and 14 S. D. B. 481. But the judgment of the Justice is not reviewable on the merits. Crawford v. Wilson, 10th Nov. 1838, 2 Swint. 200 ; 5 Ch. Burns, 541. 634. With reference to the manufactures and trades spe- cially enumerated, a number of questions have occurred in England, as to the extent Justices may go, under the 4 Geo. IV. c. 34, s. 3. - - 635. 1st, It has been found generally, that the act extends only to cases exclusively of master and servant in the trades specially named. 5 Ch. Burns, J. P. 537–542. 636. 2d., The statute did not extend to cases where the work is under a contract for a sum certain, or where the hours are left to the discretion of the contracting party. 637. 3d, Nor where a party contracts to build a wall at a certain price, within a certain time, and performs a part of the work, but refuses to complete it. * 638. 4th, A party who contracted to weave in his own house or premises, for another, certain pieces of silk, atan agreed on price, was not held to be a servant within the meaning of the statute, which is applicable only to operatives who perform their work on the ground, or within the premises of their employer, and who enter into proper contracts of service. Hardy v. Ryle, 9 B. and C. 603; Kennedy v. Young, 13th March 1837, 1 Swin. 474. 639. 5th, The 4 Geo. IV. c. 34, recites the act20 Geo. II. c. 19, in which these words occur, “ and other labourers,” which were 166 DESERTION. supposed to mean only labourers in any of the trades specified in that act; but it has now received a more enlarged construc- tion, there being a known distinction between a journeyman in any art, trade, or mystery, or other workmen employed in the different branches of it, and a labourer. 5 Ch. Burns, J. P. 538. It is now decided, that the act applies to every descrip- tion of labourers. 8 East, 115; 1 Ch. Blacks. 226. A person employed to watch goods after being taken by an officer of the law, was held not to be a labourer under the act 20 Geo. II. c. 19. 5 Ch. Burns, J. P. 539. It was, properly speak- ing, a contract of care and custody. 640. 6th, A person who engaged for five years, and received the wages of an apprentice, was held not to fall within the meaning of the 3d sect. of 4 Geo. IV. c. 34. As the agreement was a contract to teach and learn the business, it therefore fell to be judged of under sect. 1st of that act. Girdwood and Co. v. Sinclair, Glasgow Justices, 1837. See Frame, 6th June 1836. Mr. Chitty, in his treatise on Master and Apprentice, p. 45–7, says it has been supposed “ that the apprentice must be retained by the name of an “apprentice; but neither the word “apprentice,’ nor any other technical words, are essential, pro- vided the parties shew an evident intention to constitute the relation of master and apprentice.” Whenever the object of the agreement is to instruct the parties serving, it is rather to be considered as a contract of apprenticeship, than of hiring as a servant. Thus, in the case of a pauper regarding a parish settlement, Rea, v. Laindon, 8 T. R. 379, Lord Ken- yon, alluding to the fact, said “ the legal conclusion can only be drawn in one way, namely, that this was a contract of ap- prenticeship. It has been determined, that the parties serv- ing need not be retained eo nomine as an apprentice, but that it is enough if the purpose of the contract be, that the one shall teach, and the other learn the trade. This is the case here, for the master engaged to learn, i. e. to teach the pau- per here the art or mystery of a Sawyer; and the object of the pauper was to be taught the business. No technical words are necessary to constitute the relation of master and apprentice ; nor is it necessary that there should be any pre- mium given to the master.” - PROCEEDINGS UNDER THE STATUTE. 167 641. 7th, In Renfrewshire, a married woman, with consent of her husband, engaged herself as a worker in a spinning-mill, but shortly afterwards deserted from her service. A com- plaint was made under the statute, and a warrant for her ap- prehension obtained, but abandoned by the master before execution. The difficulty was, could a married woman, with a young family, be imprisoned criminally for breach of a civil contract? So far as can be ascertained, no similar case has occurred in Scotland; nor has a parallel case occurred in Eng- land, judging from their reported cases under the statute. In Scotland, a married woman, legally speaking, may be im- prisoned for crime; but in so far as regards civil obligations entered into by her, with the husband's consent, he is respon- sible during the subsistence of the marriage. Where she en- gages with his consent, the master may recover damages for breach of her contract; or, he may cite her to appear before a Justice to have the contract discharged, or an abatement made from the wages due to her, on the ground of desertion. But, on the other hand, it may be argued, that by her con- tract she voluntarily renounced her legal right of protection, and placed herself at the mercy of the statute. Were mar- riage to form an exemption under the act, masters would not be safe to proceed against female operatives, for desertion or misconduct. Besides, it may be fairly presumed, that the legislature had fully in view every station of life in which ser- vants could be placed, and did not consider it proper to exempt married females from the punishments fixed by the statute. 642. The act 17 Geo. III. c. 56, which extends to Scot- land, is only applicable to securing materials given out to weavers to be wrought, Battersby v. Caldwell, 1st March 1828, 6 S. D. 667; Yeaman v. Tod, 11th July 1836, 1 Swint. 247; but not to compel implement of a contract of service. Where a complaint was made, under 17 Geo. III. c. 56, against a weaver, who refused to work in terms of his en- gagement with a manufacturer, the judgment of the Justices compelling performance of the contract was suspended, be- cause the aet founded on was wholly inapplicable to the case, which ought to have been the 4 Geo. IV. c. 34, s. 3. Ken- nedy v. Young, 13th March 1837, 1 Swint. 474. 168 DESERTION, 3. Procedure. 643. If any servant, described in the 4 Geo. IV. c. 34, or described in the 17 Geo. III. c. 56, shall absent himself or herself from their service before the end of their engagement, they may be proceeded against summarily, under the police re- gulations of 4 Geo. IV. c. 34, for desertion, before any Jus- tice of the Peace of the county or place where they contracted, or are employed, or found. 644. The complaint should be dated and set forth, that the parties are master and servant within the meaning of the act; such facts appearing in evidence is not sufficient. 5 Ch. Burns, J. P. 537. It must be made on oath before a Justice of the Peace by the master or mistress, or by his or her steward, manager, or agent,-in virtue of which oath, the Justice grants warrant for the servant’s apprehension. An undated complaint was sustained, there being a date affixed to the relative oath of the complainer, and to the warrant granted by the Justice. The want of a sufficient specification of the locus delicti in the original complaint, was not considered fatal to the proce- dure before the Justice. Crawford v. Wilson, 19th Nov. 1838, 2 Swint. 200. Nor was it, in one case, considered to be an objection, that a complaint, under the act 17 Geo. III. c. 56, had been presented, after the accession of her present Majesty, addressed to His Majesty's Justices of the Peace ; or that, in the address, the county had been left blank. M*Kenzie v. Jeffrey, 11th June 1838, 2 Swint. 152. Any conclusion in the complaint, under the 4 Geo. IV. c. 34, for damages to the master is irregular, because the proceedings are criminal; and no criminal judicature can entertain a claim of damages, which is the province of the civil court to determine. Abbot v. Matthew, 24th May 1834, Jurist. 645. The complaint is generally made to a Justice of the county or place where the servant was employed, because the evidence for instructing the contract lies there, unless the contract be written, and the master can prove the desertion before a Justice of the place where the servant is found. 646. The Justice cannot, on the complaint and oath, grant a warrant to summon or cite the workman to appear before him, although it be a more lenient mode. Crawford v. Wil- PROCEED IN GS UNDER THE STATUTE. 169 son, 19th Nov. 1838, 2 Swin. 201. And if any officer of the law, with such a warrant, were to apprehend the party com- plained of, he would be liable in damages. The Justice must, by the statute, grant warrant to apprehend. The warrant must be dated and signed, and as clearly as possible express the person meant to be arrested. 2 Alison, 122. 647. In the execution of the warrant, the officer must not go beyond the bounds where his commission extends; he must acquaint the party with the substance of the warrant; and he must not break open doors until he has notified the errand to those within, and had been refused admittance. The officer is bound to shew the warrant, if demanded, but not to part with it. He may, however, refuse the request, if made in such circumstances as appear to endanger the document. 2 Alison, 124. - 648. If the warrant granted in one county is to be exe- cuted in another county, it ought to be endorsed by a Justice of the latter county, before putting it in force. When this is done, it may be executed either by the original officer who brought it, or one who belongs to the jurisdiction where it has been so endorsed. 2 Alison, 124. The criminal warrant of a Sheriff does not require endorsement in Scotland. I and 2 Pict. c. 119, s. 25. 649. The warrant, if carried to England for execution, must be there indorsed by an English Justice, but the prisoner must be brought back by land. He cannot be conveyed by sea to any county in Scotland, not geographically next adjacent to Eng- land. Matthew v. Glasgow Iron Co., 28th Nov. 1836, 1 Swin. 393. In Watson v. Wood, 21st Nov. 1836, 1 Swin. 344, it was observed, that it was an undoubted defect in the act 4 Geo. IV. c. 34, that there was no provision made for trans- mitting prisoners from Scotland to England by sea, which was the most usual mode of conveyance. Even a workman, if he deserts from his service in England, and comes to Scotland, may be apprehended and conveyed back under the warrant of an English Justice, endorsed by a Justice in Scotland; but he cannot be conveyed to England by sea. Watson, ut supra. If the apprehension be made in Ireland, then the transmission by sea to Scotland is necessary. - 650. It is the duty of the officer, on apprehending the pri- 170 DESERTION. soner, to take him with all convenient speed before a Justice of the county where the original warrant was granted. The officer cannot of his own authority commit the prisoner to jail, a power which would be liable to the most flagrant abuses, if once recognised. But he may, if necessary, detain the pri- soner in a house for the night, if owing to distance or to the lateness of the hour he cannot be brought on the day of apprehension before a Justice. 2 Alison, 129. 651. It is not necessary that the prisoner be brought before the same Justice who granted the warrant of apprehension; he may be taken before any other Justice in the county, who is authorized to hear and decide the complaint. White v. Wat- son, 21st Nov. 1836, 1 Swin. 344. 652. The first step of procedure is to read the complaint, and then to examine the prisoner, and to record his statements given in justification of his conduct, which is called a “ decla- ration,” and it is read over to him before it is signed by him. If he cannot write, or will not adhibit his name, then the Jus- tice must sign it, and state in the declaration the reason why his signature alone appears. 2 Alison, 132. In taking the declaration, the caution usually given to criminals is not ne— cessary to be observed. 653. The Justice, before taking any declaration, should first see that the prisoner is in a sane and sober state of mind. If he be affected with delirium tremens, the Justice may refuse to take the examination, and he may decline to recal the warrant of apprehension when granted by another Justice of the county, as the use and abuse of the warrant remains with the master. 5 Ch. Burns, J. P. 541. - 654. After the declaration is taken, the Justice has then be- fore him, in writing, the complaint verified on oath, and the prisoner's simple declaration. If the latter avers dismissal from service, and the master desertion, or if it appears that the servant left from a proper cause, or such like ground, the Justice may order parties to prove their averments, and order the proof to be written. White v. Watson, 21st Nov. 1836, 1 Swin. 344. He may thereafter order written plead- ings on the import of the proof, and take time to consider the decision to be given. White, ut supra. 655. By the 3d sect. 4 Geo. IV. c. 34, the Justice must de- PROCEED IN GS UNDER THE STATU’ī‘E. 171 cide in one of three ways. It is enacted, 1st, Where the com- plaint is proved, that it shall and may be lawful for the Justice to commit the prisoner “to the house of correction, there to re- remain, and be held to hard labour for a reasonable time, not exceeding three months, and to abate a proportionable part of his or her wages, for and during such period as he or she shall be so confined in the house of correction. Or, 2d, In lieu thereof, to punish the offender by abating the whole or any part of his or her wages. Or, 3d, To discharge such servant from his or her contract, service, or employment; which dis- charge shall be given under the hand and seal of such Justice gratis.” - 656. After the Justice has framed his judgment, reasonable notice by the clerk of court must be given both to the com- plaimant and defendant, of the day on which the Justice is to decide the complaint, and that their appearance is required in court to hear the judgment pronounced. Where a Justice de- cided in the absence of the offending party, and granted warrant for his imprisonment for fourteen days, a bill of suspension and liberation was brought, on the ground, that as the procedure was criminal, the sentence must be set aside, not having been pro- nounced in presence of the accused. The Lords of Justiciary were divided as to whether that nullified the judgment, and the question is therefore still open. The Lord Justice-Clerk Boyle said, “I, for one, am of opinion, that the pronouncing sentence, in absence of the party, was contrary to all the principles of criminal law, and ought therefore to be sufficient ground for suspending the judgment.” White v. Watson, 21st Nov. 1836, 1 Swin. 339. 657. Where the master's complaint and the servant's decla- ration are sent to be proved, the offending party may, at its conclusion, disappear, and thus prevent any sentence from being pronounced. To obviate this evil, the complainant should insist on the offender finding caution suited to his sta- tion, that he will attend all diets of Court, or, on his giving his own bond for a sum above £8, 6s. 8d. Sterling that he shall do so. It would in the majority of cases be extremely hard to commit the party to jail in consequence of failure to find caution, beeause the imprisonment might be much longer 172 DESERTION. than what would follow upon the sentence. Such seemed to be the feeling of two of the Judges, in regard to failure to find caution. White v. Watson, 21st Nov. 1836, 1 Swim. 352. 658. The duty of the Justice is simplified where the prison- er admits the desertion or offence; or, where it is instantly proved by two witnesses, and no defence offered. In that case, the Justice must decide without delay. 659. Where the Justice discharges a labourer or such ser- vant, it must appear on the face of the order itself to be a case within the jurisdiction of the magistrate. 5 Ch. Burns, J. P. 490. The warrant or certificate of discharge by the Justice must be under his hand and seal, as directed by the Act, other- wise it will be set aside. Chitty on Master and Apprentice, 104. 660. The warrant of imprisonment must set forth the party's name and designation, and that he has been convicted. Setting forth that he has been charged upon oath, is not suffi- cient. A warrant of commitment which did not adjudge the party of the offence charged, was held bad. 5 Ch. Burns, J. P. 541. Liberation from jail on account of a defective warrant, see 617. A letter to the jailer from the clerk of the Justices, stating that the party in custody of the officer was convicted, and ordained to be imprisoned, was not a legal warrant for his detention. M*Leod v. Buchanan, 24th June 1835, 13 S. D. 1153. 661. The master is not obliged to aliment the prisoner in jail, when detained under the warrant of the Justice, it being a penal offence, and his labour there ought to defray his mainte- nance. Where the Justice commits the party to the house of correction, it has been questioned whether, on being liberated, he cannot be imprisoned a second time, if he declines to return to the master's service. In the case of Dewar v. Marianski, July 1835, Dewar, the suspender, after having endured the imprisonment awarded by the Justices for deserting from his service, was, on the day of his liberation, or the day following, again apprehended, and a second time sent to Bridewell, be- cause he would not return to his service. The judgment was first endeavoured to be supported by the master Marianski, on the ground, that he was entitled to enforce implement of the contract of service by renewing the application. The REMARKS ON DESERTION FROM SERVICE. 173 Court thought that the sanction of the statute was a punish- ment ; but as there was an argument raised, that the suspen- der's conduct amounted to a second breach, and warranted a second punishment, minutes of debates were ordered. The suspender Dewar prepared his minute; but Marianski, the master, abandoned the case. The point has therefore not been decided in Scotland. But in England, Lords Ellen- borough and Bayley, in a case where the servant was impri- soned for misconduct, held, where the Justice did not discharge the servant from his contract, but imprisoned him, that the commitment did not dissolve the contract, and allow him to go wherever he pleased after the imprisonment ceased, for that would be allowing him to avail himself of his wrongful act. Rea. v. Inhabitants of Barton upon Irwell, 2 M. and S. 328. 662. The master has a civil claim of damages, if the work- man does not return after the imprisonment. Besides, the workman cannot engage to serve another master during the currency of his contract; and the party employing him know- ing the fact, is liable in damages. See Chap. X. 663. A workman was refused the expenses of a suspension and liberation, in respect the irregularity of the procedure for desertion complained of by him, had originated in his having deforced the officers of the law, when they held a warrant of apprehension against him for desertion. Matthew v. the Glas- gow Iron Company, 28th Nov. 1836, 1 Swint. 393. 4. Remarks on Desertion from Service. 664. Having stated the procedure for the enforcement of a contract of service, under the common law, and under the statutory law, it is proper to advert to the doubts and difficul- ties applicable to both, which have been obligingly suggested to me by Sheriff Barclay of Perth. In the first place, it has been repeatedly held, that a summary warrant of imprisonment is incompetent to enforce any civil contract. Murray v. Bissett, 15th May 1810; Smith v. Likely, 12th Feb. 1812. And that, even though involving a case of fraud. Morrison, 16th May 1835; M. Allan, 19th May 1837. | 74 T) ESERTION, Now unquestionably, the contract of service, in its constitu- tion and its objects, is purely a civil contract. The Court, however, have long been inclined to hold, that, as a matter of public police, the magistrate may interfere in a more summary way than would be permitted in ordinary civil actions, and even to enforce, to a certain extent, return to the service, by a summary warrant of imprisonment. But the difficulties at- tending this form of proceeding are so numerous and so for- midable, that it is found, in nine cases out of ten, to be of no avail whatever. It appears sanctioned by precedent, that the apprentice or servant deserting may be apprehended, and brought before a magistrate and examined. Now, suppose that the servant admits both the engagement and the desertion, attempts no justification of his conduct, nor offers to return to his service, but the master (as is frequently the case) refuses to take him back, unless he finds caution to fulfil his engagement; it is clear, that the magistrate cannot, compel such caution, for it would be making a new contract for the parties. The master either gets caution at the outset of his contract, or, if he did not stipulate for it, the fault is his own; and he cannot supply his omission by calling in the aid of the magistrate not to com- pel the fulfilment of an existing, but, in point of fact, to make a new contract. This point appears decided in Stewart, 21st May 1833; Munro, 7th May 1837; Wright, 28th June 1827. Suppose the apprentice or servant denies the contract, or the desertion, or alleges dismissal, or admits desertion, but states facts in justification, then the process must go on in the regular form, with a closed record. In such cases, if the ser- vant be engaged for the ordinary period, it will often happen, before the decision can be 'got, that the term of engagement is expired, and the contract no longer admits of enforcement. The case then resolves into a question of expenses, often very serious in amount, and, if given against the servant, generally irrecoverable. Again, take the case, that the apprentice or servant admits * the complaint, or that it is found proved against him, before the term of engagement is expired, but he refuses to return to REMARKS ON DESERTION FROM SERVICE. A 75 his service, it appears competent, under the authorities of Rae- burn v. Reid, 4th June 1824, and Gentle, 9th July 1825, to grant warrant to commit him to jail until he find caution not to fulfil the terms of his engagement, but to return to his ser- vice. But, what if he cannot find such caution P. The decree is not one purely ad factum praestandum. It is not similar to those, to compel subscription of a deed, or delivery of papers within the defender's power. In such cases the party has not the sympathy either of law or justice, since he holds the key of the jail in his own hands. To find caution is just as difficult, and often more so, than to pay a debt. The servant may be friendless, or, if he has friends, they behove to belong to his own class of society, and hence will not be received by the clerk of court, who is responsible for their sufficiency. How long is he then to remain in jail? During the period of his matural life P. Such indeed is the effect of the warrant ; but some say, only until the expiry of the term of his engage- ment. On what principle can such a construction be admit- ted 2 There is no limitation in the warrant. Can the jailer review, and limit the warrant P The magistrate is functus officio, and therefore cannot touch it. Eddington and Sons, v. Astley, 4th Dec. 1829. Then again, what relief has the master got? He has not got his service. No doubt, he may have got the servant punished, but at same time got punished himself, in being obliged to pay a heavy sum in name of law expenses and aliment. But how can punishment be thus ob- tained under a civil form of action, or, how can punishment compensate for a civil obligation, any more than imprisonment can cancel a debt? Sãppose imprisonment undergone, and the person liberated at the issue of the term of engagement, can the master sue for damages for breach of contract P and can the servant plead, that his engagement was fulfilled by reason of the endurance of the penalty of violation P But, suppose that the apprentice or the servant finds cau- tion, to the satisfaction of the most fastidious official, to return to his service. What may be implement of this judicial en- gagement? He returns to his work, lays down a plank of wood upon his bench, and he lifts up his hat and walks away. This may not be a bona fide return ; but then, where is the 176 DESERTION. line which separates the province of good and bad faith P Will an hour, a day, a week, or a month, satisfy the bond, and re- solve into a new desertion ? and how often is the farce to be repeated, of desertion—caution—return—and desertion P But the anomalies of this procedure are not yet done. If public police demands extraordinary powers to enforce such contract, on what principle of law or justice is the enforcement all on one side? If the servant, deserting without cause, is to be sent to jail, until he finds caution to return to his service; then, if the master dismisses without cause, why is he not sent to jail until he finds caution to fulfil his part of the engagement, by taking the servant back? It is a common law rule, that all contracts are either binding on both parties, or on neither; and though the omnipotence of statute may step in to vary that rule, yet equal handed justice gives equal remedy to all parties equally bound. But, if the contract of service be, of all the contracts in the circle, permitted to have specific enforcement, from which no amount of reparation or damage can purchase exemption, see into what consequences we are led. The boots of an inn excites the fancy of some octogenarian frequenter of his master's bar, who capriciously bequeaths him his immense fortune. The unexpected death of many intervening aspirants, raises a labouring mechanic to a peerage; a lucky ticket in a lottery, brings a collier from under ground, and enables him to acquire the estate on which the mine is situated. In all these cases, is the master entitled to keep the ennobled ser- vant at the grindstone until the expiry of the engagement? or have him turned into jail, unless he purchase his free- dom at what price the master may choose to dictate P It is clear, that if the rule exists at common law, it must be gene- ral; and the magistrate cannot judge of one exception, unless he judges of all, and places himself above the law. These doubtless are extreme cases, but principles are best tried by that test. With deference, therefore, the contract of service appears to be one which, from its nature, cannot be specifically enfor- ced at common law, but resolves into a claim of damages for breach of contract, equally with the contract of marriage, or of sale, or any other civil contract. - REMARKS ON DESERTION FROM SERVICE. 177 But it may be, that there is a propriety for making a penal statute to enforce the contract, more especially when, on the part of the persons engaged, there exist so strong temp- tations to obtain freedom, to the detriment, not merely of the master, but of the great interests of the country. Of this na- ture is the statute 4 Geo. IV. c. 34, which recently has been much acted on in Scotland. Recourse to this statute has been much more limited, because of the high authority of Mr. Tait, who, in his Treatise on the Duties of a Justice of the Peace, stated that it did not apply to Scotland. It is con- ceived, from the recital of the acts in the preamble, and the powers of the act, that it was not intended by its framer to be so applied. But there is the general rule, that all statutes of the British Parliament, unless otherwise expressly limited, or by obvious reference to particular circumstances, are held to be British statutes. Accordingly, the 4 Geo. IV. c. 34, has been widely acted on in the west of Scotland without objec- tion ; and though numerous appeals have been taken to the Supreme Court and High Court of Justiciary, and objections the most critical, even to the erroneous quotation of a section, sustained, yet the misapplication of the statute has never been hinted, either at the bar, or from the bench. The statute, however, is very far from being a sufficient remedy; it is ambiguous and ridiculously tautological in its terms; and the required form of procedure is not well under- stood in Scotland. In the first place, the whole varieties of domestic servants are without its reach. In the next place, the form of procedure, by sworn information, is unknown in Scot- land, though there appears no great difficulty in its adoption. In some places, the complaint is drawn up in the Scotch form, with an oath annexed, similar to the form adopted in cases of applications against debtors in fuga. But a fitter form is to embody the facts into an affidavit, or sworn information, found- ing on the statute. There is no provision as to appeal to the Quarter Sessions; the appeal has hitherto been at once to the High Court of Justiciary, which, from its expense, is equal to no appeal. It is thought that there is an appeal to the Quarter Sessions from the sentence of the single Justice, the statute not excluding such appeal except in the cases pro- M t?8 DESERTION, vided for under the fifth section, and the powers given to a sin- gle Justice under the statute being very great. The general statute regulating the form of prosecution before Justices, re- gulates the form of procedure in such appeals. As writing is not excluded by the statute, there appears no incompetency, but a propriety, in recording the declaration and proofin common form, and admitting written pleadings. White v. Watson, 21st Nov. 1826, 1 Swint. 344. Costs cannot be given against the party committed, no power being given to that effect in the statute. Costs may, however, be given against the master failing in his prosecution, as the common law penalty of an unfounded suit. The only sentence to be obtained is one of imprison- ment. But when the conviction is obtained, it has been found in practice that the servant generally makes his peace with the prosecutor, and returns to his service. In that case, the sentence cannot be enforced on a new cause of complaint, but must be held to be departed from. The punishment un- dergone only expiates the particular offence, and does not cancel the contract. If the servant does not return and fulfil the contract, the master's claim will then resolve into one of damages, and the imprisonment will in nowise go to decrease the amount. As often as the servant offends, so often may recourse be had to the statute. Where a servant after a length of time offends, sufficient punishment may be awarded by forfeiture of the wages earned; and in such cases, the mas- ter, by taking advantage of the statute, may save himself from a tedious action at law, at the instance of the servant, for pay- ment of his wages. On the whole it will be found, that the common law remedy is totally inefficient, and that much difficulty exists in adapting the statute, 4 Geo. IV. c. 34, to Scotland; so that a legislative measure, adapted to the Scotch law and practice, is impera- tively called for. THE COMBINATION LAWS. 179 CHAP. XIXV. THE COMBINATION LAWS. 665. All statutes relative to the combination of workmen or of masters, as to wages, hours, or quantity of work, are repealed by the 6 Geo. IV. c. 129, and a new and peculiar jurisdiction for the summary trial of the offenders before the Justices of Peace has been thereby created. The statute, however, is held in noways to infringe upon the inherent jurisdiction of the Court of Justiciary in such cases, which empowers them to entertain an indictment for assault, ag- gravated by being committed for the purposes of combination, laid upon the basis, and according to the provisions, of the old common law. 2 Alison, 8. Assault is aggravated when committed in pursuance of an intent to compel a rise of wages, or to deter from working at a certain rate, or of a com- bination entered into for these illegal purposes. 1 Alison, 188. Accordingly, various cases since the date of the statute have occurred of a revolting mature, which have been visited with transportation. 666. The proceedings before the Justices of Peace ought invariably to be reduced to writing, because there is an ap- peal by either party to the Quarter Sessions, whose duty it is to review the whole case, which can never be satisfactorily done where there is no written record. In one case that came before the Court of Justiciary, the absence of a written record was deprecated. And in another case it was stated, that written proceedings are allowed in every case, unless there be an express statutory exclusion. M'Kenzie v. Jef. frey, 11th June 1838, 2 Swint. 152; also White, 1 Swint. 344. Proceedings are competent under the statute, before the Sheriff of the county. Know v. Ramsay, 7th July 1837, 1 Swint. 517. 667. By sec. 3d of 6 Geo. IV. c. 129, it is enacted, that if any person shall, by violence to the person or property of another, or by threats or intimidation, or by molesting or in any way obstructing another, force, or endeavour to force, any journey- man, or other person hired or employed in any manufacture, !80 THE COMBINATION LAWS. to depart from his hiring, employment, or work, or to return his work before the same shall be finished; or prevent, or endeavour to prevent, any journeyman or other person not being so hired or employed, from so hiring himself to, or from accepting work or employment from, any person or persons; or, if any person shall use or employ violence to the person or property of another, or threats or intimidation, or shall mo- lest, or in any way obstruct another, for the purpose of forcing or inducing such other person to belong to any club or asso- ciation, or to contribute to any common fund, or to pay any fine or penalty, or on account of his not belonging to any club or association, or not having contributed, or having refused to contribute, to any common fund, or to pay any fine or pen- alty, or on account of his not having complied, or of his refusing to comply, with any rules, orders, resolutions, or regulations, made to obtain an advance of, or to re- duce the rate of wages, or to lessen or alter the hours of work- ing, or to decrease or alter the quantity of work, or to regulate or controul the mode of carrying on any manufacture, or the management thereof; or if any person shall, by violence to the person or property of another, or by threats or intimidation, or by molesting or in any way obstructing another, force, or en- deavour to force, any manufacturer, or person carrying on any trade or business, to make any alteration in his mode of regulating, managing, conducting, or carrying on such manufacture, trade, or business, or to limit the number of his apprentices, or the number, or description, of his journeymen, workmen, or servants; every person so offending, or aiding, abetting, or assisting therein, being convicted there- of, according to the provisions of this act, shall either be im- prisoned only, or imprisoned and kept to hard labour, for any time not exceeding three calendar months. 668. By sec. 4, the Act shall not extend to subject any per- sons to punishment who shall meet together for the sole pur- pose of consulting upon, or determining, the rate of wages, or prices, which the persons present at such meeting, or any of them, shall require or demand for his or their work; or the hours or time for which he or they shall work in any manu- facture, trade, or business, or who shall enter into any agree- THE COME INATION LAWS. 181 ment, verbal or written, among themselves, for the purpose of fixing the rate of wages, or prices, which the parties entering into such agreement, or any of them, shall require or demand for his or their work, or the hours during which he or they will work, in any manufacture, trade, or busi- ness; and that persons so meeting for the purposes afore- said, shall not be liable to any prosecution or penalty for so doing, notwithstanding any other law or statute to the con- trary. 669. By sec. 5, the Act shall not extend to subjectany per- sons to punishment who shall meet together for the sole pur- pose of consulting upon and determining the rate of wages or prices which the persons present at such meeting, or any of them, shall pay to his or their journeymen, workmen, or ser– vants, for their work, or the hours or time of working in any manufacture, trade, or business, or who shall enter into any agreement, verbal or written, among themselves, for the pur- pose of fixing the rate of wages or prices, which the parties entering into such agreement, or any of them, shall pay to his or their journeymen, workmen, or servants, for their work, &c.; and that persons so meeting for the purposes aforesaid, or entering into any such agreement, shall not be liable to any prosecution or penalty for so doing, notwithstanding any law or statute to the contrary. 670. By sec. 6, all and every persons and person offending against this Act shall and may, equally with all other persons, be called upon and compelled to give his testimony and evi- dence as a witness on behalf of his Majesty, or of the prose- cutor or informer, upon any information to be made and ex- hibited under this Act, against any other person or persons; and that, in all such cases, every person having given his or her testimony or evidence as aforesaid, shall be and is hereby indemnified against any information or prosecution to be laid or commenced against him or her, for having offended in the matter wherein or relative to which he or she shall have given testimony or evidence as aforesaid. 671. By sec. 7, on complaint and information on oath be- fore any one or more Justice or Justices of the Peace, of any offence committed against this Act, within his or their respec- 182 THE COMBINATION LAWS. tive jurisdictions, and within six calendar months before such complaint or information shall be made, such Justices are authorized and required to summon the person charged with being an offender against this Act, to appear before any two such Justices, at a certain time or place to be specified; and if any person so summoned shall not appear according to such Summons, then such Justices, if proof on oath shall have been first made before them of the due service of such summons upon such person, either by delivering the same personally, or leaving it at his usual place of abode (provided the same shall be so left twenty-four hours at least before the time which shall be appointed to attend the said Justices upon such summons), shall issue their warrant for apprehending the person so summoned, and not appearing as aforesaid, and bringing him before such Justices; or it shall be lawful for such Justices, if they shall think fit, without issuing any pre- vious summons, and instead of issuing the same, upon such complaint or information as aforesaid, to issue their warrant for apprehending the persons charged to have offended against this Act, and bringing them before them; and upon the persons so complained against appearing upon such sum- mons, or being brought by virtue of such warrant before such Justices, or upon proof on oath of such person's absconding, so that such warrant cannot be executed, then such Justices shall, and they are hereby authorized and required forthwith to make inquiry touching the matters complained of, and to examine into the same by the oath of any one or more credi- ble person or persons, as shall be requisite, and to hear and determine the matter of any such complaint; and upon con- fession by the party, or proof by one or more credible wit- messes upon oath, to convict or acquit the party against whom complaint shall have been made as aforesaid. 672. Sec. 8. That it shall be lawful for the Justices of the Peace before whom any such complaint and information shall be made as aforesaid, and they are hereby authorized and required, at the request in writing of any of the parties, to issue their summons to any witness or witnesses, to appear and give evidence before such Justices, at the time and place appointed for hearing and determining such complaints, which THE COMBINATION LAWS. 183 time and place shall be specified in such summons; and, if any person so summoned to appear as a witness as aforesaid, shallmot appear before such Justices, at the time and place specified in such summons, or offer some reasonable excuse for the default; or, if they shall appear in consequence of such sum- mons, but not submit to be examined as witnesses, and give evidence before such Justices, touching the matter of such complaint, then and in every such case it shall be lawful for such Justices, and they are hereby authorized (proof on oath, in the case of any person not appearing according to such summons, having been first made before such Justices of the peace of the due service of such summons on every such per- son, by delivering the same to him or her personally, or by leaving the same twenty-four hours before the time appointed for such person to appear before the Justices, at the usual place of abode of such person), by warrant under their hands, to commit such person so making default in appearing, or ap- pearing, and refusing to give evidence, to some prison within the jurisdiction of such Justices, there to remain without bail for three calendar months, or until they shall submit to be ex- amined, and give evidence, before such Justices as aforesaid. 673. Sec. 9 directs that all convictions and warrants of commitment shall be drawn up according to the forms given in a schedule annexed to this Act. 674. Sec. 10 directs that the Justices shall cause all such convictions to be fairly written out, and transmitted to the next quarter sessions, to be filed, in case of appeal. 675. Sec. 11 directs that all prosecutions in Scotland under this Act may be proceeded in at the instance of the public prosecutor, and may be judged of, either by two Justices of the Peace, or by the Sheriff of the county within which the offence may have been committed. 676. Sec. 12 enacts that if any person, convicted of any offence punishable by this Act, shall think himself or herself aggrieved by the judgment of the Justices before whom he or she shall have been convicted, such person shall have liberty to appeal from every such conviction to the next court of gene- ral sessions, or general quarter sessions of the peace, which shall be held for the county or place wherein such offence was 184 THE COMBINATION LAWS. committed; and that the execution of every judgment so ap- pealed from shall be suspended, in case the person so con- victed shall immediately enter into recognizances before such Justices, (which they are hereby authorized and required to take), himself in the penal sum of £10, with two sufficient sureties in the penal sum of £10 each, of lawful money of Great Britain, upon condition to prosecute such appeal with effect, and to be forthcoming to abide the judgment and deter- mination of the said next general sessions, or general quarter sessions, and to pay such costs as the said court shall award on such occasion ; and the Justices in the said next court of general sessions, or general quarter sessions, are hereby au- thorized and required to hear and determine the matter of the said appeal, and to award such costs as to them shall appear just and reasonable, to be paid by either party, which deci- sion shall be final; and if, upon hearing such appeal, the judgment of the Justices before whom the appellant shall have been convicted shall be confirmed, such appellant shall im- mediately be committed by the said court to the common jail or house of correction, without bail, according to such convic- tion, and for the time therein mentioned. 677. Sec. 13 enacts that no Justice of the Peace, who shall happen to be also a master in the particular trade or manu- facture, concerning which any offence is charged to have been committed under this act, shall be allowed to act as Justice under this act. In the schedule annexed to the act is given the form of con- viction and commitment. CHAP. XXVI. GIVING THE CHARACTER OF A SERVANT. 678. There are certain situations in life, where persons may be called upon, from public or private duty, to express them- selves in such a manner, as to convey reflections, more or less, on the character of others. These situations, for the in- GIVING THE CHARACTER OF A SERVANT. 185 terests of society, have the protection of the law, which af- fords to the party accused a certain advantage, by way of defence, legally termed privilege. Among the persons thus protected, are masters in speaking of the conduct or cha- racter of their servants to persons intending to hire, one of the most ordinary and useful communications which a member of society is called upon to make. Borthwick, 197– 222. While masters are thus clothed with legal protection, they offend seriously against the interests of society in giving a good character where it is not deserved; and against justice and humanity, in either injuriously refusing to give a charac- ter, or in designedly misrepresenting one, to the detriment of the servant. Borthwick, ut supra ; Brodie's Stair, 84, foot- 770te. 679. Every communication, therefore, made by the master in answer to inquiries from persons intending to hire his ser- vant, are held to be privileged, or, in other words, to have been given without malice, or with an intent to injure. Borthwick, 223. A lady, in answer to a letter inquiring the character of a servant who had formerly been in her service, stated acts of misconduct during the servant's engagement, and after leav- ing it. She also stated the same verbally to the party who originally recommended the servant to her. It was held, that the letter was a private and privileged communication, and that the verbal communication being made to the party who recommended the servant, was not officious, nor was it evidence of malice. Child, 9 Car. and Pay. On the same principle damages were refused to a tutor, dismissed from a clergyman's service for immoral conduct, the statements com- plained of being true, and made by the master in answer to inquiries, or, in the performance of his duty as a clergyman. Matheson, 4th June 1832, 10 S. and D. 825. 680. The circumstance, that the information was given in the presence of third parties, does not take the case out of the rule of privilege. 5 Ch. Burns, J. P. ; Toogood v. Spyring, 1 C. M. and R. 181. 681. Private and confidential letters by a law agent to his client, the proprietor of an estate, accusing a servant of trust, then engaged on the property, of drunkenness, debauchery, 186 G IVING THE CHARACTER OF A SERVANT. and of being in bankrupt circumstances, in consequence of which he was dismissed, were found to fall within the rule of privileged cases. Stewart v. Swinton, 26th May 1825; Borthwick, 238. See also Munro v. Munro, 1st June 1803, Hume's Dec. 616. In England, the principle was extended to communications between a tenant and his landlord, in re- gard to a servant. A. a tenant of B. was desired by B. to inform him if he saw or heard any thing respecting the game. A. wrote a letter to B. informing him that his gamekeeper sold game. Held, that if A. had been so informed, and believed the fact, the communication was privileged, and that the game- keeper could not maintain any action for libel. Cockayne v. Hodgkisson, 5 C. and P. 543. In such a case the defendant may give, in evidence, representations made to him as to the con- duct of the gamekeeper, but cannot go into the evidence of acts done by the gamekeeper. Ibid. - 682. “In speaking of the character of a servant,” says Mr. Brodie, “the faults, if any, should be fairly stated, for there are many different kinds of faults, and many gradations of al- most every species. A servant, whose fault was of a mild des– cription, would suffer no less than he who had been guilty of a heinous offence. This will hold even in the worst species of transgression, that of theft itself. It is quite evident, that there is a very marked distinction between stealing money . or plate, &c. and taking a little tea or sugar; that while few would probably be entirely proof against temptation in regard to the latter, it is to be hoped that there are not many who would be guilty of the former. To one master or mistress, the taking of a little tea or sugar might appear a serious of fence, to another a venial fault : it follows therefore, that neither master mor servant is treated with justice unless the truth be told. To convert this privilege to the malicious pur- pose of destroying the character of a servant, who may possi- bly have incurred his master's displeasure by a strict perform- ance of his duty, or of leaving his service, &c. is a just ground for reparation to the servant.” Br. Stair, 84, foot-note ; An- derson v. Wishart, 13th July 1818, 1 Mur. Rep. 429. 683. If the master gives a character of the servant to the party intending to hire, and it be bad, the servant cannot re- GIVING THE CHARACTER OF A SERVANT. 187 cover damages for the expressions used, unless he set forth and prove that they were made by the master maliciously as well as falsely: falsehood alone, as in an ordinary case of li- bel, will not infer malice. 1 Starkie, 292–328. In such a case, the master is not bound to prove the truth of what he states, for what he said was not given officiously. “It fre- quently happens, says Mr. Borthwick, 223–3, that the master alone may have had the means of knowing the servant's mis- conduct. Being unable, therefore, to prove it by the testi- mony of others, were the rule to be, that in such a case false- hood inferred malice, the master would be left without a de- fence : malice must therefore be proved from other sources. Were the servant to prove not only the falsity, but that the master was aware of it, that circumstance might be sufficient, especially if it were corroborated by the circumstances under which they parted, as, by previous expressions of ill-will, or, by an unnecessary and spontaneous disclosure of the servant’s behaviour.” Lord Chief Justice Alvanley said in one case, “If it were to be understood, that whenever a master gives a bad character to a servant who has quitted his service, he may be forced by the servant, in justification of such his con- duct as a master, to prove the particulars which he has stated respecting the servant, it would be impossible for any master (so understanding the law, at least with any regard to his own safety,) to give any character but the most favourable to a servant, and consequently impossible for a servant, not en- titled to the most favourable character, to obtain any new place. In the two cases of Edmonson v. Stevenson, B. N. P. 8, and Weatherstone v. Hawkins, 1 T. R. 110, the law upon this subject appears to me to be laid down as clearly as can be wished. Unquestionably the master, who has given a bad character of a servant to persons inquiring after his character, is not bound to substantiate by proof what he has said; but it is equally clear, that the servant may, if he can, prove the character to be false ; and the question between the master and servant will always, in such a case, be, whether what the former has spoken concerning the latter be malicious and de- famatory.” Lord Mansfield laid down in general terms, that where a person intending to hire a servant applies to a former 188 GIVING THE CHARACTER OF A SERVANT. master for a character, the master is not bound to prove the truth of the character he gives; for what he speaks of the ser- vant, he does not speak officiously, but only discloses that which rests in his knowledge alone.” I Starkie, 298–300. 684. A master, in giving a character of his servant to a per- son intending to hire her, charged her with theft, and in Sup- port of that charge stated, that she had borrowed money when she had come into his service, and repaid it before she had re- ceived any wages. In reply to an inquiry by a relation of the servant, he admitted, that the time when he paid the wages was entered into a Book which he produced, but refused to state what the time was. And on the same party remonstrat- ing, and observing that the servant, in consequence of her loss of character, might have gone upon the town, he answered, “ What is that to us 2° Lord Denman held, that these cir- cumstances, though slight, was sufficient to go to a jury, to decide whether the communication to the intended master was made maliciously. Kelly v. Partington, 4 B. and Ad. 700. - 685. Where a servant, knowing the character which his master will give, procures it to be given, for the sake of found- ing an action upon it, he will not be allowed to recover dama- ges. 1 Starkie, 298–300. 686. The person giving a character to his servant is liable for any damage the party taking such servant may sustain, if there has been wilful misrepresentation of the character, either in asserting what he knew to be false, or in suppressing what he knew to be true. It would be useful to society if this were more generally considered; for characters are usually given too carelessly and indiscriminately, and not unfrequent- ly without a due attention to truth. Christian, 6th July, and Anderson, 13th July 1818, 1 Mur. Rep. 427-429 ; Fell, 212. In England an important action was tried against a person who had knowingly given a false character of a man to the plaintiff, who was thereby induced to take him into his ser- vice. The servant soon afterwards robbed his master of pro- perty to a great amount, for which he was eacecuted, and the plaintiff recovered damages against the defendant to the ex- GIVING THE CHARACTER OF A SERVANT. 189 tent of his loss. The decision is admitted to be founded on strict principles of law and justice. I Ch. Blacks. 432, n. 687. Although the law offers its protection to a master or mistress in speaking fairly of the character of their servant, yet it also gives them the option of refusing, or of declining to assign a reason why they refuse, to give the servant a cha- racter. Fell, 12th Dec. 1809, F. C. The same rule holds in England. Carroll v. Bird, 3 Esp. 201. 688. It was held in England by one Judge, “that a master may at any time, whether asked or not, speak of the charac- ter of his servant, provided that he speak in the honesty of his heart; and that an action cannot be maintained against him for so doing : at the same time, masters are not warrant- ed in speaking ill of their servants from heat or passion.” But it has since been laid down in general terms by Lord Mans- field in England, and it is fixed as a rule in Scotland, that where a master, unasked or uninvited, gives his servant's cha- racter, or speaks ill of his servant, either at his jovial meet- ings, or anywhere, to persons who have no interest in know- ing any thing about it, the law will, in an action brought by the servant, compel the master in justification to plead and prove the truth of the character so given by him, because his forward and officious zeal is the material guide to the ascer- taining his real motive in publishing the servant's character. Borthwick, 223, Christian, 6th July, and Anderson, 13th July 1818, 1 Mur. Rep. 427-429; 1 Starkie, 300-1. Where a master, on the servant quitting his service, wrote of his own accord to the new master, stating that he had discharged the servant for misconduct, and, on receiving a letter inquiring the particulars, wrote an answer for which damages were asked, it was held that, although an answer to inquiries were privileged, yet it was a question for the Jury to say, if the master acted bona fide, or maliciously intending to do the ser- vant an injury; and the circumstance of the inquiries having been set in motion by the master, was a matter of considera- tion to the Jury as to that question. Pattison, 8 B. and C. : Gardiner v. Williams, 1 C. M. and R. 78. 689. If a master officiously state any trivial misconduct of the servant to a former master, in order to prevent him giving 190 GIVING THE CHARACTER OF A SEIRVANT. a second character, and then himself, upon application for a character, give the servant a bad one, the truth of which he is not able to prove, the Jury may from these circumstances infer malice against the master in an action against him by the servant. Rogers v. Clifton, 3 B. and P. 587. 690. If a servant bring a written character, and be taken into service, and behaves ill, the master will do no wrong by writing on the back of it, that the person to whose character it related had afterwards been in his service, and was dismiss- ed for ill behaviour. Taylor v. Rowan, 7 C. and P. 70. 691. Persons vitiating written certificates of character may, in aggravated cases, be punished criminally; and forging cer- tificates of character, is an indictable offence. 1 Alison, 368. 692. There are certain cases of misrepresentation as to the character of a servant for which persons are liable to be fined. By the 32 Geo. III. c. 56, it is declared, if any person shall personate a master or mistress, or their doers, and shall, either personally or in writing, give a false account of his or her ser- vices; or if any servant shall give a false account, or shall either efface or erase any word, date, matter or thing, in a certificate of character given to him, or her, by a former mas- ter or mistress, the offender shall, on conviction before a Jus- tice of the Peace, forfeit £20 and 10s. costs, or, in default of payment, be committed to the house of correction to hard la- bour for any space of time not exceeding six months, nor less than one month, or until the penalty be paid. Mr. Hutchison, 2d vol. 162, refers to this Act as applicable to Scotland; while Mr. Tait, in his Duties of a Justice, voce Servant, seems to consider that it does not, for all such offences are reached by the vigour of the Scotch law as frauds. 693. It was not considered necessary to libel malice, in an action of damages against a master who verbally charged the servant with fraud, and examined a number of witnesses be- fore a Justice of the Peace without a warrant. Smith, 15th Feb. 1827, 5 S. D. 364; Langmuir, 16th March 1833. 694. Damages will lie against a party who falsely and ma- liciously defames a servant, or who gives false and malicious information, in order to injure him in the estimation of his employers. Leven v. Young, 17th March 1818, 1 Mur. Rep. GIVING THE CHARACTER OF A SERVANT. 191 350; Brown v. Watson, 22d March 1838, Jurist ; Denholm v. Ogilvie, 18th March 1827, 4 Mur. Rep. 195. 695. But whether the information, if resting on probable grounds, though false, would found a claim of damages in such a case, is a question which has not been decided. Young v. Leven, 8th July 1822, 1 Sh. App. Cas. 696. If the defamation or the information be made by a number of persons, the servant is not entitled to damages from them jointly and severally, unless he can shew the acts com- plained of were dome jointly. Young v. Leven, ut supra. Where the action sets forth certain joint acts done by two persons, from groundless malice, with the view of injuring and defaming the pursuer, and where it concludes for a joint or several liability; it is competent to libel further defamatory acts done by the defenders separately. If the defamation be grounded on statements made in an official memorial, it is not necessary to libel that the statements were made without pro- bable cause. Mº Kenzie v. Reid, 2d Dec. 1831, 4 Deas' Rep. 367. - . 697. No damages are due if the servant be dismissed from his place from a proper cause, assigned to the master by a third party; or for a cause that that party did not assign; be- cause it is impossible to say that there was malice in making the charge, or that there was no probable cause. Young v. Leven, 8th July 1822, ut supra. & 698. If, in consequence of slanderous words spoken of a servant, he be dismissed by the master, an action alleging spe- cial damage is maintainable, whether the master believes the imputations conveyed, and acts upon that belief, or whether he acts from any other motive. Knight v. Gibbs, 3 N. and M. 467. - 699. A master, in engaging a servant, is presumed to have made inquiry regarding his character, and to have satisfied himself, or to have considered that duty unnecessary on some impression or other existing within himself. On these grounds, the law will not justify a master in refusing to allow the ser- vant to enter on his duties, or in dismissing him after enter- ing the service, because he had, previous to the hiring, been guilty of some petty offence, for which he had been punished. 192 GIVING THE CHARACTER OF A SERVANT. The law seems to be, that if the fault has been atomed for, and the servant has returned to industrious habits, he is, in his qualifications and behaviour as a servant, entitled, in vir- tue of his engagement, to have a fair and honest trial; but the appearance of returning habits will justify dismissal. (Perth Court, 1838.) 700. A statement of the misconduct of a workman, made to his master or employer, though in presence of another, by the person upon whose premises, and for whom he has been at work, if made immediately bona fide, and without any malici- ous intention, is a privileged communication. But a repeti- tion of such complaint to a third person, if he has no interest in the matter, when the party accused is not present, is not so privileged. Toogood v. Spyring, 1 C. M. and R. 181. 701. Where a person originates false reports prejudicial to a workman, and being called on by the employers of the workman to examine the matters complained of, he repeats the false statements to them, such statements are not privileged communications. Smith v. Matthews, 1 M. and R. 151. 702. A master was found liable in damages for imputations against the chastity of his female servant. Ross v. Mº Kerrell, 13th June 1797, Hume's Dec. 601. For imputations against a servant’s honesty. Grieve v. Smith, 11th Feb. 1808, Hume's Dec. 637. In the latter case the parties were mem- bers of a religious society called Bereans, of whose policy and discipline it is a fundamental rule that every member shall watch over the moral and religious deportment of his brethren, and submit the matter, if he find any thing amiss, to the cog- misance of the congregation, whose decision shall be final. Many of the statements complained of were uttered before the congregation; but the residue had been maliciously cir- culated elsewhere. The Court, in awarding the damages, thought that every thing must be laid aside which had passed, judicially in some measure, at the meetings of the congrega- tion, and according to the rules and usages of the Berean so- ciety. The exceptionable matter was what had passed in conversation on other occasions elsewhere ; and for this da- mages were found due. 703. In an action of damages at the instance of a servant, TU TORS AND GOVER N ESSES. 193 the plea of compensatio injuriarum was sustained, there being mutual slanderous letters, which balanced each other. “The Lords were generally of opinion, that both parties were to blame, and that the justice of the case would rather lie in set- ting off the mutual injuries against each other, and thus send- ing the parties out of Court without expenses on either side. Judgment passed accordingly to that effect.” M*Guffie v. MºDonnell, 14th Feb. 1809, Hume's Dec. 638 and 613; Borthwick, 279-291. - CHAPTER XXVII. TUTORS AND GOVERNESSES. 704. It was supposed, on the authority of the unreported case of Wood v. Binning, 14th June 1804, noticed by Mr. Blair, p. 300, that the engagement of a tutor extended to one year certain; but that is not now held to be the law. Bell's Prin. 4 Ed. s. 174. In the absence of a special agreement, parties maturally, though tacitly, refer to and contract for the known customary term of engagement in their particular line of service. As there is no uniform term for the engagement of tutors, the law seems to be, from the nature and import- ance of their duties, that the engagement should be held to exist so long as parties are mutually pleased, and dissolvable by either on an equitable notice. Moffat v. Sheddan, 8th Feb. 1839, Jurist. See 149. Connel's Sketch of the Law, 1838–39, page 19. 705. A tutor was requested by a mother, by letter, to “un- dertake the education of her son,” a boy of eleven years of age; and the latter gave up the entire charge and manage- ment of him, and stated the terms at “ £200 per annum, to be paid quarterly,” with bed and board. The tutor returned thanks for “the unqualified surrender” of the youth, and entered on his office. He received his first quarter's salary; N * 194 * TUTORS AND GOVERN ESSES. but, during the currency of the second, he was dismissed with a tender of that quarter's salary, and £16 for board and lodging to the end of it. The offer was declined; an action was raised for £150, being three quarters’ salary, and £84 as board and lodging to the end of one year from his entering on the duty. The one party averred, that a practice existed by which tutors and governesses were understood to be hired by the year; and the other alleged misconduct in her oppo- ment; but no proof was adduced on either side. The majo- rity of the Court, in finding the tutor entitled to one year's full salary, with bed and board for the same period, held, that it appeared, from the tenor of the letter, that an engagement for some endurance was contemplated, and that, as the terms were fixed at £200 a-year, that period was the shortest which could be held to have been in the view of the parties. The judgment was thus expressly rested on the special circum- stances of the case. Moffat v. Sheddan, ut supra. 706. In Moffat's case, Lord Mackenzie observed, that the engagement of a governess, in the absence of a special con- tract, subsisted for six months; and Baron Hume, in his re- port of the case of Maben v. Elliot, 9th June 1808, Hume's Dec. 393, states that “a governess for young people will ra- ther be understood to hire for a year, if she leaves town and engages with a family who dwell at some distance in the country.” 707. There is an implied condition in the engagement of a tutor or governess, to conform to the rules and regulations of the family in which they reside, and shew due deference and respect to their employers. The latter, in return, is bound to maintain the tutor or governess’ rank in the family ; shew them not only kindness and civility, but support them in the discharging of their important duties. Where they are oblig- ed to leave the family through unkindness, a Court will allow the whole salary, and damages, which will embrace not only board, but every apparent loss the party may sustain in his or her future prospects as a teacher. Unkindness, without a cause, is domestic tyranny. 708. A tutor or governess cannot be compelled to dine with the servants in the hall. Moffat v. Sheddan, ut supra. TUTORS AND GOVERNESSES. - i 95 Nor can a governess be compelled to act either as a laundress or as a nursery-maid to her pupils. Blair, 300. See 197. 709. A tutor or governess cannot leave the family on the plea of change of residence, but must continue till the ter- mination of his or her engagement; but they are entitled to the expense of returning home, if the family remove to an extreme part of the kingdom. Neither of them can be com- pelled to follow the family out of the kingdom. Bell's Prin. 4 Ed. s. 180. - - 710. Immoral conduct in a tutor is a good ground for dis- missal, without subjecting the employer in damages: so found in the case of a governess, for loose conduct while in the family, who had formerly borne an illegitimate child. De 'Grosberg, 10th Aug. 1765, Mor. 16,466. And of a tutor, for writing immoral verses in Gaelic on the state of a female pupil, and reciting grossly indecent language before his pupils in the school-room. Matthison, 4th June 1832, 10 S. D. 825. Where the teacher had been guilty of improper conduct, and dismissed. See A. B. v. Ayr Academy, 3d June 1825; Mur- ray v. Dundee Academy, 2d July 1833; Gibson v. Tain Academy, 11th March 1836, 14 S. D. B. 710. 711. Tutors are liable in damages for breach of their en- gagements, like every other person who fails to implement their contracts. PART SECON D. M A S T E R A N D A P P R E N T I C E. CHAPTER. I. INDENTURE OF AN APPRENTHCE. 712. Minority is the proper age for apprentices to enter into service. 713. Before entering upon their service, they must have parental consent; if the parents be dead, the consent of a curator or of some kinsman. If a minor be destitute of these, he can bind himself by an indenture, it being for his benefit; and he will be subject to the law and police regu- lations for enforcing obedience of it. Ersk. 1. 7.62; Harvie, 7th March 1829, 7 S. D. 561 ; Ch. on Mas. and App. 25. See 88. In England, if an indenture be executed by the master and the father of an apprentice, but not by the latter himself, it is invalid. Rea, v. Armesby, 3 B. and A. 584. It is invalid, if the indenture be not executed by the apprentice, although he consents to enter into it. Even were he to serve under his consent, it would not constitute him an apprentice. Rea, v. Ripon, 9 East, 295. 714. An indenture may be set aside on the head of minori- ty or leison. For example, if a young gentleman of fortune should bind himself to an employment beneath his birth or estate, or, oblige himself to pay an enormous premium, or, as it is called in Scotland, an apprentice fee. Ersk. l. 7.62. 715. The law will not justify unfair or hard conditions in an indenture, where these are imposed on an apprentice des- titute of guardians, because it is an advantage over inexperi- €IlCé. INDENTURE OF AN APPRENTICE. 197 716. The contract of apprenticeship is an engagement for £nstruction to be given by one person to another. The for- mer is the instructor or master; the latter is called the ap- prentice, from the French word apprendre, to learn. Their engagement endures for a term of years, and the wages are lower, in consequence of the instructions to be communicated. 717. The agreement must be reduced into the form of a legal writing, called an indenture, a term borrowed from the English practice, which has mutual contracts cut at the top in a waving or undulating line, so that each party may have a duplicate which can test each other. Ch. on Mas, and App. 27. 718. In England, all apprentices pay a premium or pecu- niary remuneration to the master, for teaching; in Scotland, a premium or apprentice fee is only paid in certain profes- sions; it is rarely paid when learning a trade. 719. By the statute 55 Geo. III. c. 184, the indenture must be written on a stamp corresponding to the amount of ap- prentice fee or premium, paid or to be paid to the master or mistress. 720. An indenture was found to be null and void, from the premium not having been inserted in it. Horsburgh v. Hyslop, 20th June 1727; Sinclair v. M*ALeod, 18th June 1738, Mor. 585; Donaldson, v. Fulton, 14th Feb. 1754, Mor. 587. But a master was allowed to recover the apprentice fee, after the death of the apprentice, on getting the inden. ture stamped on payment of the duty. Shepherd v. Innes, 19th Nov. 1760, Mor. 589. It is necessary to state in the indenture the premium paid or to be paid, not only to satisfy the revenue, but to point out whether the apprentice falls within the police regulations of 4 Geo. IV. c. 34. In Eng- land, if an indenture state not the premium paid, the parent is not entitled to recover the amount, because he is consider- ed, by executing the indenture, to be aware of its illegality, and therefore in pari delicto with the master. Stokes v. Twitchen, 2 Moore, 538; 8 Taunt. 492. 721. A bond for a sum of money to a master, as the price of teaching an apprentice for two years, where the indenture was written out for five years, in order to allow the apprentice 198 INDENTURE of AN APPRENTICE. to pass his trials, found null and void. Pole v. Wiggans, 3 Scott's Reports, 601. See Chap. Cautioners for Apprentice. 722. By the 55 Geo. III. c. 184, where there shall be du- plicates of an indenture, the one must be written on an ad valorem stamp, if a premium be paid, the other written on a 35S. stamp. The part bearing the ad valorem shall belong to the apprentice; the other to the master, which is directed to be received in evidence accordingly. If the principal inden- ture be signed, it is not necessary to its validity that the mas- ter should sign a counterpart. Rea, v. Fleet, Cald. 31 ; Rea: v. St. Peters on the Hill, 2 Botts. P. L. 367. See 78 to 80. 723. If there be no consideration or premium paid to the master or mistress, the indenture must be written on a 20s. stamp ; if it contains more than 1080 words, then it must be written on a 35s. stamp. 55 Geo. III. c. 184. 724. The assignment or transfer of an indenture is charge- able with stamp-duty where any consideration is given to the new master, exclusive of what may have been paid to the former master, or may be returned, or given, or transferred to the new master or mistress. 55 Geo. III. c. 184. 725. An indenture binding an apprentice for seven years, —first, to serve A. for three,_and, second, to serve B. for four years of the time, and to learn a different trade with each, held to be valid, and to require but one stamp. Rea, v. Inhabitants of Louth, 8 Bar. and Cr., 247. 726. If an indenture be written on unstamped paper, it may at any time be stamped on payment of the duty and penalty. Rei interventus does not supply the want of a stamp. 727. But, by the 7 Geo. IV. c. 44, indentures entered into with any members of the legal profession, cannot be stamped after the expiration of six months from its date. 728. An informal indenture homologated by service is binding. Rymer v. M'Intyre, 14th July 1781, Mor. 5726; Campbell, 13th Feb. 1837, 5 S. D. 335; Harvie, 7th March 1829, 7 S. D. 561 ; Neil & Tait v. Washon, 31st Jan. 1807, Hume's Dec. 20. See also 1 Nev. and Man, 567. 729. It is incompetent, in a question as to service, for a party to lead evidence of his skill, in order to obtain admission into INDENTURE OF AN APPRENTICE. 199 a corporate body, whose rules impose on applicants for ad- mission, that they must have served an apprenticeship of seven years complete. Spence, 12th July 1819, 2 Mur. Rep. 100. 730. In England, parole evidence of an indenture which cannot be produced, is in general inadmissible. Rea, v. St. Helens, Burr. S. C. 150. But, under particular circumstan- ces, an indenture may be presumed. In such cases it must be proved that the indenture did exist, and its absence must be satisfactorily accounted for. For instance, that it was seen in the master's hands some time before a fire, which broke out and consumed his warehouse and all within it. Burr, S. C. 731. See Rea, v. Badby, 1 Botts. P. L. 549. 731. The act 5 Geo. III. c. 46, s. 18, appoints a register of indentures to be kept in every town or city in Great Bri- tain, for the recording of indentures. 1 Ch. Burns, 177. 732. What amounts to recession of a contract of appren- ticeship. The father of A., a minor, agreed with B. to re- ceive A. into his (B.'s) service on trial, and to take him as an apprentice, if approved. A. went into the service, and work- ed for B. nearly two years. To several applications made during that time by the father, B. answered, that his son should serve out the two years, and then be bound, the father paying a fee of £10. This was agreed to ; but shortly after B. quarrelled with A., and told him to go home about his business. A. went home, and on his father applying to B. for an explanation, he was told to go and do his worst. The father then caused a letter to be written to B. by an attorney, requiring him either to take A. as an apprentice, or to recom- pense him for his work; to which no satisfactory answer was given. In an action brought by A. (by his next friend) to recover compensation for his service, the Judge left it to the Jury on the above facts, to say whether B.’s conduct was such as warranted the father in considering the contract for an ap- prenticeship as abandoned; and told them, if they thought it was, to give the plaintiff such compensation for his work as they thought proper. The Jury found for the plaintiff with damages, by way of compensation for his services; held, that the direction of the Judge was proper, and the verdict right. 200 INDENTURE OF AN APPRENTICE. Philips v. Wiginton, 1 Adol, and Ellis, 333. If a lad goes on liking with a view to his being bound an apprentice, for a month or two, and behaves with propriety, but thereafter be- haves ill, after complaints by the master to the parent or guardian, it will be for the jury to say whether there was any contract either express or implied. Earrat v. Burghart, 3 C, and P. 381; 2 C. and P. 231. Where a surgeon agreed to take an apprentice in consideration of a premium, and service given for a short time, when the agreement was broken off on account of the refusal to pay the value of the stamp for the indenture; held, that the surgeon could not recover damages for breach of the agreement, nor for the board and lodging of the apprentice during the time he served. Keene v. Parsons, 2 Stark, 506. 733. The indenture of apprentices bound by a parish, or by a public charity, vary little in form from indentures entered into by minors, with the consent of parents or curators. Such indentures, and assignments thereof, are, however, exempt from stamp-duty. 55 Geo. III. c. 184. 734. In the case of parish apprentices, the kirk-session consents thereto, where the boy or girl has no relation or kinsman. But they cannot bind themselves, gua kirk-ses- sion, as cautioners for a penalty for the non-performance of the indenture by the apprentice, because the poor's fund is exclusively for support of paupers. 735. In the indentures of boys educated in charitable in- stitutions in Edinburgh, the treasurer, or one of the gover- nor’s consent, along with the parent or guardian of the minor. The master and the apprentice both find caution to perform their respective parts of the indenture; and where a premium is paid by the institution, it is payable according to the Dutch law, by yearly instalments. The indenture is in duplicates,— one retained by the governors for the apprentice, the other by the master. ASSIGNING, 201 CHAPTER II. ASSIGNING AND DISCHARGING INDENTURES. 1. Assigning. 736. It was the custom at one time in Edinburgh, where the master died, for the deacon of the trade to provide a new master for the apprentice, if the indenture was recorded in the books of the incorporation; but that power is not now recognised. Cutlar, 16th Feb. 1711, Mor. 583. 737. Indenturing an apprentice to a particular person, arises from an esteem and good opinion of the party, that he will instruct the apprentice in the trade or calling; and therefore the law has considered it such a personal trust or confidence, that the master cannot assign or transfer the in- denture to another without the consent of the apprentice, and of his parents or curator. Chitty on Mas. and App., 77–8.; Cutlar, ut supra; Neil, 15th July 1760, 5 Br. Supp. 877; Falin. Glass Co. v. Shaw, 22d Dec. 1789, Mor. 597. 738. The assignment must be subscribed by the appren- tice and his curator, and the cautioner, for the due perform- ance of the indenture. It must be written on a stamp cor- responding to the premium paid to the new master, exclu- sive of what may have been paid to the former master. 55 Geo. III. c. 184. 739. As the indenture falls by the death of the master, the apprentice cannot be compelled to serve the representa- tives, nor can they assign him to another master without his consent. Neil, 15th July 1760, 5 Br. Supp. 877; Ersk. 3. 3. 16. - - . . 740. An indenture with one trading Company, is not assignable to another Company carrying on the same trade; mor is it assignable by a Company whose articles of copart- mery admit of a continual and indiscriminate change of part- mers. Edin. Glass Co. v. Shaw, 22d Dec. 1789, Mor. 597. 741. But the indenture with a Company continues good 202 ASSIGNING AND DISCHARGING INDENTUREs. where all the partners retire except one, and where the busi- ness is carried on in all its branches as formerly, the appren- tice being allowed to draw the wages and other benefits sti- pulated by the indenture. Campbell, 13th Feb. 1827, 5 S. D. 335; Pagans v. Mº Kie, 11th July 1837, Jurist. In England, if an apprentice be indentured to two partners, he becomes bound in law the apprentice of the survivor. I Har. and Woll. 69. 2. Discharge of Consent. 742. Parties may discharge the indenture by mutual con- sent. Where the apprentice is a minor, he cannot legally consent; it is therefore necessary to have also the consent of his curator, and that of the cautioner. Chitty on Mas. and App. 87. - 743. Where the parties have power to consent, the inden- ture may be discharged, 1st, by formally cancelling it; or, 2d, by delivering it up without any writing. Chitty, ut Supra. 744. It is a fraud on the public to declare, that the in- denture has been regularly and faithfully completed, when it has not. See 721. 745. Where the master has agreed by endorsement (un- stamped) on the indenture to cancel it, “provided the ap- prentice made no engagement, or entered into any person's service in the town of N.,” it was held that the apprentice setting up in trade for himself in N., was a breach of the con- dition, which entitled the master to recal him back into his service. Gray v. Cookson, 16 East, 13. 746. An apprentice bound six years to a bookbinder, was at the end of the fifth year prompted by high pros- pects to go to New South Wales, and offered to his master to procure a substitute to serve for the last year, which was declined. In a question between the master and the appren- tice, the master's conduct in refusing was considered by the Lord Ordinary to be too severe, and, to mark his opinion of it, found the master entitled only to modified expenses. Pagans v. Mº Kie, 11th July 1837, Jurist. DISCHARGE BY A MAGISTRATE. 203 3. Discharge by a Magistrate. 747. The Justices of Peace cannot discharge an appren- tice without recording in their warrant or certificate the grounds on which they proceeded. Chitty on Mas, and App. Chap. IV. ; 20 Geo. II. c. 19, s. 3. They may dis- charge an apprentice, though bound to a trade not mentioned in the act; but the warrant must state that the defendant ap- peared, or was summoned and made default; and that the master had received money with the apprentice. Rea, v. Aimes, 1 Botts. P. L. 574. See 718. 748; also 2 Swint. 200. 385.451. 748. An apprentice was discharged by the Justices, where the master, a tanner, neglected to take out the licence re- quired by law for carrying on his business. An advocation was brought by the master of the decree, on the grounds, 1st, that although carrying on business without a licence sub- jected the master in penalties, his contracts were not rem- dered void; 2d, that the Justices had no power under the statutes to find the indenture forfeited, and decern it to be delivered up. And a suspension was brought by the appren- tice of a charge, at the instance of the master, for the penalty in the indenture. The Lords suspended the letters of horn- ing for the penalty; advocated the cause, without deciding the second point in the case ; but, under the whole circum- stances, “found the apprentice free from the terms of the indenture.” Watson v. Grindlay, 16th Nov. 1826, 5 S. D. 3. 749. In England, if an apprentice appears to be an idiot, incapable of learning the trade, the Justices have power to discharge such apprentice. Chitty on Mas, and App. 75– 103. In Scotland, the master may dismiss in such a case so found, where the apprentice was hypochondriac, some- times furious and unserviceable. Lassels v. Rankine, 13th JFeb. 1680, 3 Br. Supp. 337. 750. Although the Justices have power to discharge an apprentice, they cannot turn him over to a new master, that being beyond their jurisdiction. Chitty on Mas. and App. 78–9. 204 ASSIGNING AND DISCHARGING INDENTURES. 4. Discharge by circumstances. 751. An apprentice may be liberated from his indenture. 752. 1st, By the bankruptcy of the master where he is unable to resume business, because the apprentice cannot be instructed in terms of his engagement. 753. 2d, By the master changing his calling, whereby the apprentice cannot be taught the business he engaged to learn. For example, where the master changes from a brewer to a spirit merchant, a hatter to a clothier. Chiesly v. Cuthbert, 5th Dec. 1665, Mor. 9150. . 754. 3d, By the master's removal from town to the coun- try, where the apprentice shall not have the same means of improvement and knowledge. For example, if a locksmith in town were to remove to the country, where the principal parts of his business are the shoeing of horses, and black- smith's work, the apprentice could not be properly taught the art of lock-making. - 755. 4th, By the death of the master. 756. 5th, By failure of the master to take out the licence required by law to carry on his business, so as to teach the apprentice. Watson v. Grindley, 16th Nov. 1826, 5 S. D. 3. 757. 6th, By the apprentice's departure, if the master makes no inquiry after him, but knowingly allowshim to engage with another master in the neighbourhood, and serve without challenge for a series of years. Robinson v. Smith, 19th June 1800, Hume’s Dec. 20. A master who made no effort to re- claim, after he knew that his apprentice had been pressed in- to the navy, was not entitled, at the distance of sixteen years thereafter, to sue for implement of the obligation of service, or damages in lieu thereof, in terms of the indenture; princi- pally on the ground, that in a correspondence opened by the apprentice, while at sea, with the master, and continued by him with the apprentice after his leaving the navy, regarding a past due account, no allusion was made to any claim of da- mages for breach of the indenture. In that case, it was ar- gued by the master, that an indenture being a written and i) is CHARGE BY CIRCU MISTAN CES. 205 solemn contract, it could only be discharged by another writ- ten instrument equally regular and explicit; that such a con- tract was not subject to any of the short limitations, but to the long prescription of forty years; and when the law thus kept it in life for that long period, it truly excluded all infer- ence of a discharge from the master's silence or conduct for any shorter period, even if these were not sufficiently account- ed for, as they were by the absence of the apprentice, the want of correct intelligence about him, and his inability, while a common Seaman, to satisfy any claim of damages. The Lord Ordinary (Gillies) found, from the terms of the corres- pondence, that there was reason to presume that the master's silence as to any claim of damages for non-implement of the indenture, did not proceed from any feeling of delicacy or favour to the apprentice, but from the master's conviction that there was no just foundation for such a claim. The Court ad- hered. Baron Hume, in reference to the case, says, “It is true, a written contract endures by law for forty years. But still, in the case of these contracts, which, like an indenture, are by their very nature destined for early and immediate execu- tion, and are quite inapplicable to the age and other circum- stances of parties at a distance of time, the right must be sub- ject to relinquishment, by a deliberate course of conduct on the master's part, continued for a length of time. If the mas- ter, having it in his power, make no attempt for a series of years to recover his apprentice, or enforce a claim of damages, this cannot reasonably be construed any otherwise than as a tacit permission to the young man to consider himself as re- leased from his engagement.” Ferguson v. M'Kenzie, 15th June 1815, Hume's Dec. 21. . 758. 7th, Action for desertion must be brought within se- ven years after expiration of the indenture, by the 6 Geo. III. c. 25, s. 1, which empowers the Justices of the place where the master resides to oblige an apprentice, who runs away before the expiry of his indenture, to serve or give satisfaction for the absent time, and, in case of refusal, to imprison him for any period not exceeding three months; but the application must be made within seven years after expiration of the in- denture. This statute is cumulative to the punishment in- 206 ASSIGNING AND DISCHARGING INDENTURES. flicted on the apprentice for his offence, by the 20 Geo. II. c. 19, s. 4, extended by 4 Geo. IV. c. 34. Gray v. Cookson, 16 East. 13; Chitty on Mas, and App. chap. IV. No ap- peal lies to the Quarter Sessions against a record of conviction and commitment in execution, under the 6 Geo. III. c. 25. 5 Ch. Burns, 541. See 2 Swint. 453. 759. 8th, By not teaching the apprentice. The master is bound to teach, and in no way conceal from his apprentice the mysteries of his trade, otherwise the apprentice is reliev- ed from the engagement; and he may pursue the master for the penalty, for non-performance of the contract. Rea, v. Aimes, 1 Bott. 574; 1 Ch. Burns, 191. The master’s casual absence from business does not terminate the indenture, pro- vided this be not frequent nor long continued; or, where he leaves an experienced journeyman, or foreman, to teach the apprentice during his absence. Gardner v. Smith, 13th July 1775, Mor. 593. The master may compel the elder to teach the younger apprentice in the same branch of business in which he is himself at the time employed. Ballantyne and Co. v. Kerr, 21st Nov. 1811, Fac. Coll. The Lords found, that agoldsmith acted wrong in employing his apprentice as his sub- stitute, to overlook masons in the erection of a building be- longing to the goldsmith's company, which the members had undertaken to oversee week about. Symontown v. Brocks, 14th Jan. 1673, 2 Br. Supp. 166. It is said to have been decided, in the unreported case of Dewar v. Millar, 14th Nov. 1788, that the indenture was null, as the master, who was a mason, had employed his apprentice constantly at hewing stones, but never in the operation of building. See also Munro v. Clark, 7th July 1837, 15 S. D. 1262. The in- denture falls, if the master habitually come in a state of in- toxication to his shop, or place of business; for, independent of the incapacity to teach, which is thereby created, there is drunkenness and gross immorality set, as an example, before the apprentice. 760. 9th, By the master telling his apprentice “he might go where he pleased,” and giving up his indenture. Real. v. Notton, Burr. S. C. 629. - 76.1. 10th, By the master's excessive severity or violence RETURN OF THE PREMIUM OR APPRENTICE FEE. 207 to the apprentice; or, by setting before him a gross immoral example, &c. &c. 762. 11th, By the law of England, the indenture of a female apprentice, bound out by the parish, falls by her marriage, even although the indenture omit these words “ or the time of her marriage.” Chitty on Mas. and App. 20–45. But the mar- riage of a male apprentice does not void the indenture. Fenton v. Finlay, 10th June 1742, Mor. 586. The same rule holds in England. 5. Return of the Premium or Apprentice Fee. 763. Where the apprentice dies, the master is entitled to retain the apprentice fee. Ersk. 3. 3. 16. To obviate the hardship of that rule, the fee is now generally declared by the indenture to be payable to the master by yearly instal- ments; or a clause is inserted, stipulating for a proportionable return of the fee, in the event of the apprentice dying during the currency of the indenture. See 735. 764. The Court, where the master died at the end of the second year of a four years' indenture, found the apprentice entitled to a third of the fee, on the ground, 1st, That he had during that period been maintained by the master at bed and board, and been of little use to him ; and 2d, Had refused to serve, although the business was carried on by an experienced workman for behoof of the widow. Cutlar v. Littlejohn, 16th Feb. 1711, Mor. 583; Ogilvie v. Home, Feb. 1683, 2 Br. Supp. 34. 765. When the master changed his business, he was not entitled to the fee. Chiesly v. Cuthbert, 5th Dec. 1665, Mor. 9150. And, where half of the apprentice's time had expired, the master from the same cause was ordered to give back a corresponding part of the fee. The master alleged that the apprentice had been guilty of several malversations; but the Court refused to enter upon such a defence, but reserved to the master to pursue for these. Dickson v. Rae, 1st March 1682, 3 Br. Supp. 427. 766. Where the master becomes a bankrupt, and unable to resume business, a proportionable part of the apprentice fee falls to be returned. Ogilvy v. Home, Feb. 1683, 2 Br. 208 ASSIGNING AND DISCHARGING INDENTURES, Supp. 34. In such a case, the apprentice must rank as an ordinary creditor. 767. By the 6 Geo. IV. c. 16, s. 1, where a commission of bankruptcy is issued against the master, the apprentice is not only entitled to be discharged, but the assignee must repay the premium proportioned to the apprenticeship unexpired. This statute is not applicable to Scotland. 768. By the 4 Geo. IV. c. 29, s. 2, Justices have power to order part of the premium to be repaid by the master, where the apprentice is discharged by their warrant or certificate, under the statute law; also, to order delivery of the appren- tice's clothing. 6. Where a Master retires from Business. 769. Where the master gives up business, and offers to find another person, equally respectable, in the same trade, to in- struct the apprentice, which is declined, the master will be exonerated from his obligation under the indenture, to teach and learn. Henderson, 12th Feb. 1791. 770. And the representatives of a deceased master will be exonerated from the master's obligation to teach and learn, by an offer to find a new master in the same line of business, or to retain and teach the apprentice through the medium of a qualified workman. Cutlar v. Littlejohn, 16th Feb. 1711, Mor. 583. CHAPTER III. OUT AND IN DOOR ATPPRENTICES. 771. An out-door apprentice is one who attends on his master at his place of business, for instruction, during the hours of work. In that case, the apprentice must provide bed, board, and clothing for himself, and working tools, if OUT AND IN DOOR APPRENTICES. 209 necessary; and the master, on the other hand, pays weekly- wages to the apprentice. 772. The master's authority extends over the apprentice while engaged in learning his business, or during the hours of business, but not when he is out of the master's premises. Gunn, 21st July 1835, 13 S. D. B. 1142. 773. By the law of England, a master is liable to pay wages during the apprentice's sickness, if there be any pro- bability of his recovery. 1 Ch. Burns, 191. See Chap. XV. The law makes a distinction between the case of a servant and that of an apprentice, probably from the nature of the contract, and its duration. In the latter case he is a learner, and not presumed, from his youth, to have means to support himself under sickness. 774. An in-door apprentice is one who works in the house of the master, and is there maintained by him at his expense during the currency of the indenture ; or who works in sepa- rate premises, but similarly maintained. The furnishing of clothing and washing to the apprentice is a matter of agree- The Int. 775. The master's authority in the case of an in-door ap- prentice is twofold, namely, that of master and guardian. He is bound, not only to teach the apprentice his trade or busi- ness, but to entertain him in his family with bed and board, watch over his conduct, and set before him proper exam- ples. 776. Where a master covenanted to furnish clothes and wictuals to his apprentice, he was held bound during the ill- mess of his apprentice to provide him with proper medicine. Regina v. Smith, 8 C. and P. 153. 210 ENLISTMENT OF APPRENTICES. CHAPTER IV. MASTER'S INTEREST IN THE CONTRACT OF APPRENTICESHIP. 777. A master acquires, during the currency of the inden- ture, a legal right to the services of the apprentice, of which no one can wrongfully deprive him. See Chap. X. But he may lose that right by his own negligence. See 757. 778. He may sue an action against any person who shall harbour or detain the apprentice, after knowing him to be such. Rea. V. Edwards, 7 T. R. 745. Or who shall seduce or en- tice the apprentice to leave his master. Turner v. Robin- son, 5 B. and A. 789. 779. A master can sue another for the value of his appren- tice's labour, if he harbours and employs the apprentice after desertion. Foster v. Stewart, 3 M. and S. 191. CHAPTER V. ENLISTMENT OF APPRENTICES. 780. If an apprentice be balloted to serve in the militia, it does not void the indenture; nor is service in the militia held to be absence under the contract. But he cannot enlist in the army, navy, or marines, or enter as a substitute or volunteer into the regular or local militia, without the consent of the master. 52 Geo. III. c. 68, s. 63. 781. By the Mutiny Act, if an apprentice enlist, and shall deny to the magistrate who attests him that he is an appren- tice, he is held to be guilty of obtaining money under false pretences; and, whether he be punished or not for that of fence, he is held to be a deserter at the expiration of his ap- prenticeship, if he does not then deliver himself up to an offi- cer authorized to receive recruits. EN LISTMENT OF APPRENTICES. 21 1 782. By the Mutiny Act, it is declared, that a master in Scotland may claim his apprentice within one month, on mak- ing oath before a Justice of the Peace, in terms of that Act, and on producing such Justice's certificate to the officer having command of the recruit. The apprentice must be bound “for the full term of four years, by a regular contract or indenture of apprenticeship, duly extended, signed and tested, and bind- ing by the law of Scotland on both parties, prior to the enlist- ment.” The indenture must also have been produced to a Justice where the parties reside, within three months after commencement of the apprenticeship, and must bear a certifi- cate or declaration by him, “specifying the date when, and the person by whom such contract or indenture shall have been so produced.” The apprentice must also be under twenty-one years of age. 783. Any master who shall give up the apprentice's inden- ture within one month after the enlistment, is entitled to the bounty, after deducting two guineas for the apprentice's ne- cessaries as a recruit, and any other payments made in igno- rance of his being an apprentice. 784. The Mutiny Act also declares, that no apprentice shall be claimed and taken away by his master, but under the warrant of a Justice, within whose jurisdiction the apprentice may then be, before whom he shall be brought, and the matter inquired into on oath. If he declared, on enlistment, that he was not an apprentice, the Justice may commit, and the cer- tificate and indenture may be taken as evidence against him, on trial for the offence of taking money on false pretences. If the Justice be not asked by the officer recruiting to commit, then the apprentice shall be delivered up to the master. 785. Where the apprentice is committed, he must be tried by the Sheriff and a jury, like other criminals. Robinson v. Mitchell, 6th July 1829, 7 S. D. 835. 786. The procedure is similar where the apprentice enlists in the marines, or East India Company's service. 787. Impressment by the navy of an apprentice who had formerly been bred to the sea, was recognised ; and also, that he might enter the navy voluntarily. Turnbull, 26th June 212 OBLIGATIONS ON MASTERS. 1793, Mor. 599; Cunningham, 19th Jan. 1796, Mor. 600. But an apprentice may now be reclaimed from the navy. 788. Where the master reclaims his apprentice from the navy, he is not bound to find caution that the apprentice will return at the expiration of the indenture, as the Act does not apply to any case, but to a person taken from the navy for civil debts or process, or for criminal offences. Smith, 23d June 1814. 789. In England it has been decided, that an indentured apprentice deserting his service, on entering on board ship, cannot maintain an action for wages. Bright v. Lucas, Peake's Add. Cas. 121. CHAPTER VI. OBLIGATIONS ON MASTERS. 790. All persons, of whatever trade or profession, are pri- vileged to take apprentices; unless when the party carries on an unlawful trade, such as illicit distillation, &c. In certain trades, however, masters are, by statute, still restricted in the number of apprentices. Thus, a ship-captain must have apprentices in proportion to the tonnage of his vessel; chimney sweepers cannot have more than four apprentices. 791. Where the master is an alien, it seems that that will not invalidate the indenture; but the apprentice and his advisers must take the risk of the master being removed from the country by Government, and regulate the payment of the premuim under the indenture so as to meet that contin- gency. Chitty on Mas. and App. 24. 792. The master is bound, not only to teach and instruct the apprentice in all the mysteries of his business, in so far as he knows and practises the same, but to do his utmost diligence to cause the apprentice to learn. 793. He cannot employ the apprentice in performing duties different from his trade; nor employ him in menial offices OBLIGATIONS ON MASTERS. 213 for his family. Symington v. Brock, 14th Jan. 1673; Peters, 26th Sept. 1818, 2 Mur. Rep. 28. 794. An indenture was discharged, from the master's failure to take out the licence required by law to carry on his business. Watson v. Grindley, 16th Nov. 1826, 5 S. D. 3. 795. By the 6 Geo. IV. c. 46, apprentices regularly bound to any member of the legal profession in Scotland, are not disqualified from being admitted a solicitor, writer to the signet, agent, procurator, or notary public, “by reason of any omission of the person or persons to whom he served for the same term, or for any part thereof, having so neglected to take out his annual certificate, or to register the same.” 796. A master may remove his business to another part of the country without terminating the indenture, provided the apprentice will be properly taught. Lauder v. Robertson, 7th Decem. 1687, 3 Br. Supp. 659. But if the master remove to a place where the apprentice would not have so good an opportunity of learning the business, the indenture is voided. Thus suppose a person bound to a locksmith in town, and that he should remove to a part of the country where he would have little practice but in shoeing horses, the apprentice could not be compelled to remain, because it would be forcing him to learn the business of a farrier, in opposition to the specific trade in the indenture. It is said to have been decided, in the unreported case of Henderson v. Monteath and Co. 12th Feb. 1796, that the apprentice had to follow his master to a place about mine miles distant from where he first entered upon his service. Where an apprentice to a surgeon, in England, was sent by his master to the East Indies; it was adjudged, that the master could not compel the apprentice to go beyond seas, except the master go with him; but he may send him to any part of England. 13 Ja. Coventry and Windall Brownl. 67. But, otherwise, if it be expressly agreed to, or the nature of the apprenticeship doth import it; as, if the master be a mer- chant adventurer or sailor. 797. A master is not permitted to use violence towards an ap- prentice. Smart v. Gairns, 18th Dec. 1794, Hume's Dec. 18; Munro v. Clark, 7th July 1837, 15 S. D. 1262. See also 2 Br. 214 OBLIGATIONS ON MASTERS. Supp. 520. Or to compel an apprentice to work beyond his strength and ability. 798. But where the apprentice gives great provocation to the master, such provocation will be taken into consideration. In an action of damages brought by an apprentice against his master for striking him with a small iron rod; a defence of insolence, disobedience, and general improper conduct, and great provocation by the apprentice, was alleged. The Lord Justice Clerk stated to the jury, that the correction by such an instrument could not be justified; but they must take all the circumstances into consideration, particularly the insolence, disobedience, and great provocation. One shilling of damages were given, and on applying the verdict, the Court found no expenses due. Cherrie v. Paterson, 26th Dec. 1837, Jurist. 799. Threatened violence, and profane swearing, on the part of the master, towards his apprentice, will also void the indenture, particularly where he resides in the master's house. In 1835, an apprentice to a baker in Glasgow deserted his service, in consequence of threatened violence on the part of his master. The Sheriff-substitute of Glasgow, on an appli- cation by the master, held, that the apprentice was not bound to return to his service. This was reversed on an appeal to the Sheriff, whose judgment was advocated, and altered, by Lord Corehouse, who found the apprentice entitled to expen- ses. His Lordship added the following note to his judgment, which is explanatory of the facts of the case: “ The Lord Ordinary is far from thinking that every instance of profane swearing on the part of a master, will justify an apprentice in quitting his service. However reprehensible, it is unfortu- mately too often the language of the vulgar, and must be sub- mitted to; but this is a case of a very peculiar description. The advocator, an orphan boy, was bound apprentice to the respondent. It was stipulated in the indenture, that his mas- ter should maintain him at bed and board, and accordingly he became a member of the respondent's family. Coming into the place of a parent or guardian, it was the respondent's duty, not only to instruct him in his trade, but to watch over his conduct, and in particular, not to set before him a gross example of immorality and profligacy. Instead of doing so, * OBLIGATIONS ON MASTERS. 215 it was proved that the respondent was in the daily, and in- deed the invariable practice of cursing and swearing at every person in his employment, and particularly at this boy, who is not proved to have committed any offence, but, on the con- trary, to have been obedient, attentive, and very quiet. Pass- ing the limits of ordinary profane swearing, he seems to have taxed his invention for new and horrible oaths; for one wit- mess, after giving specimens of them, more disgusting and brutal than perhaps ever were admitted upon record, depomes that he ‘ cannot recollect any more of the oaths used by the pursuer, for they were so curious and various !” It is thought that the advocator was not bound, in the character of an ap- prentice, to have his ears polluted daily by such language, and to expose himself to the danger of being corrupted by the ex- ample. Indeed, it is for the interest of the public that an in- denture should not be enforced in such circumstances. The Lord Ordinary therefore cannot agree with the Sheriff in opinion, that because the respondent never actually struck the boy, * mere verba jactantia, how wrong and shocking soever, cannot annul a written contract of indenture.' But there is another ground for the judgment. The respondent was in the practice of threatening the boy's life, and that he would use personal violence of a most savage kind. These were not mere verba jactantia, because he actually did proceed to vio- lence in the case of the other apprentice, whom the Sheriff in the separate action has assoilzied. It is distinctly sworn, that the advocator was alarmed at these threats of violence, and it is thought that he had a just and reasonable cause to be so.” 800. A master may dismiss an apprentice for theft, and claim all the loss he may thereby sustain from the cautioner, as well as the penalty in the indenture. By law he cannot be obliged to take back the apprentice to his service. In Maa well v. Buchanan, 8th March 1776, Mor. 593 and Ap- pendia. 2, the master was found not obliged to take the ap- prentice back to his service, where he had committed a theft, which he confessed. A defence, that the confession made to the master was not judicial, and had since been retracted by the apprentice, who had been liberated from jail by bail, and not yet convicted of the crime, was disregarded by the Court. 216 OR LIGATIONS ON MASTERS. An apprentice to a goldsmith disposed of part of his master's goods, and thereafter deserted his service. The master prov- ed part of his loss, and contended that he was entitled to give his oath in litem for the rest of the kinds and species he want- ed, in supplement of the probation, as clandestine domestic thefts were always difficult to prove by witnesses. Some of the Lords were for the master giving in a more special conde- scendence of the loss, but at last they agreed to modify a sum in gross for the whole, and decerned for £500 Scots in all, in- cluding the penalty of £40 Scots in the indenture. Forbes v. Dickson, 2d July 1708, 4 Br. Supp. 7. - 801. In Maxwell's case, the indenture bore, that the ap- prentice should pay one shilling for every day’s absence, or give two days' service, in the option of the master, and also that the latter should pay a certain weekly sum in name of board to the apprentice. The Lords found the cautioner and the apprentice liable, to the master, in one shilling of damages per day from the period of the imprisonment on the charge of theft till the expiry of the indenture, which amounted to £37, 4s. and also found neither the apprentice nor the cautioner entit. led to any reduction for maintenance. 802. If the master falsely accuse an apprentice of fraud or theft, he will be liable in damages, and the indenture may fall. Where an apprentice was charged with purloining tools, &c. the Lords allowed a conjunct probation ament the way and manner the tools and instruments were kept ; and if they were committed to the apprentice's sole care and trust; or, if there was a promiscuous management, and oversight of the whole apprentices and journeymen; how these instruments came to be abstracted, or if they were lent, and with whom they were found, or how they were returned. The Lords allowed the apprentice to prove his damage, through his master refusing to take him back, &c. The accusation was found not suffi- cient to justify dismissal; the apprentice fee was ordered to be returned, as neither master nor apprentice were very de- sirous of one another; and the master was found liable in one hundred merks of damages. Watson v. Mossman, 11th Nov. 1698, 4 Br. Supp. 420.-Twenty guineas of damages were awarded by a jury against a master, for maliciously and wrong- COMPLAINTS BY APPRENTICES AGAINST MASTERs. 217 fully charging an apprentice with theft, and causing his de- tention in the police office. Langmuir, 16th March 1833. 803. Where a master claimed a merk Scots for each day's absence of the apprentice, who deserted on the ground of not being properly taught his business, the Lords found, that as the damage, by the indenture, was liquidated to two days' ser- vice for one absent, he could only pursue for service; and as apprentice offered to serve accordingly, dismissed the case. Symontown v. Brocks, 14th January 1673, 2 Br. Supp. 166. 804. The master must not make every fault a reason for dismissing an apprentice. It seems rather to be the law, that he should admonish, where the fault is not of a serious com- plexion. Watson v. Mossman, 11th Nov. 1698, 4 Br. Supp. 420. He may dismiss for repeated disobedience. Raeburn v. Reid, 4th June 1824, 3 S. D. 104. And repeated desertion from service. Burrell v. Cleghorn, 12th June 1793. 805. Any misconduct of an apprentice, or deserting from his service, may be corrected by the master, or by the party acting in the absence of the master, as his manager, under the police regulation of 4 Geo. IV. c. 34, s. 1; and the manager, in return, may be prosecuted by the apprentice for his wages, under sec. 4. See 311. 814. 821. ºtºs CHAPTER VII. COMPLAINTS BY APPRENTICES AGAINST MASTERS, F T E CONTRA. 1. By Apprentices. tº 806. By the 20 Geo. II. c. 19, s. 3, and 4 Geo. IV. c. 29, s. 1, it is lawful for any two or more Justices of the Peace of the county or place where the defendant resides, to entertain a complaint or application against a master or mistress, by any apprentice, upon whose binding out no larger a sum than twenty-five pounds of lawful British money' was or shall be paid, “touching or concerning any misusage, refusal of ne- cessary provision, cruelty, or other ill treatment of, or towards, 218 complaints BY APPRENTYCES AGAINST MASTERS, such apprentice by his or her master or mistress.” Such Jus- tices have “power to summon the defendant to appear within a reasonable time, and then examine into the matter of such complaint, and upon proof thereof, made upon oath to their satisfaction, (whether the master or mistress be present or not, if service of the summons be also upon oath proved,) the said Justices may discharge such apprentice by warrant or certificate under their hands and seal, for which warrant or certificate no fees shall be paid.” 807. If any person or persons shall think himself or them- selves aggrieved by such determination, order, or warrant of the Justices, he, she or they may appeal to the Quarter Sessions; which Court is “empowered to hear and determine the same, and to give and award such costs to any of the respective per- sons, appellant or respondent, as the said Sessions shall judge reasonable, not exceeding forty shillings, the same to be levied by distress and sale.” 20 Geo. II. c. 19, s. 5. 808. Where an appeal lies to the Quarter Sessions, the Justices who determine the complaint in the first instance ought to reduce the evidence to writing, otherwise it subjects parties to lead the evidence twice over, at a very unnecessary expense. Writing is never forbidden unless where it is spe- cially excluded by statute. See M*Kenzie v. Jeffrey, 11th June 1838, 2 Swint. 152. 809. If the Justices shall discharge the apprentice, then the discharge must set forth the cause for which it was grant- ed, and must be under the hands and seal of the Justices. It has been held not sufficient to state merely, that the master “ misused his apprentice,” or that the master “used him un- kindly,” or he refused to take him back again, or that he re- fused to entertain him according to the indenture. Chitty on Mas. and App. 104-5. Crawford v. Wilson, 19th Nov. 1838, 2 Swint. 201. 810. While they have power to punish apprentices for mis- conduct, there is no power given to the Justices to administer punishment to masters for their faults, but only to discharge their apprentices. There is no doubt, however, that inde- pendently of the terms of the indenture, and of the power of the magistrates, if the master, without cause, beat or ill use COMPLAINTS BY APPRENTICES AGAINST MASTERS. 219 his apprentice, the latter may support an action against his master. He has a right to sue his master, in case of non- observance of any of the express covenants of the deed; or for not providing sufficient food while under his dominion and con- trol, whereby the servant became sick and weakly. 2 Camp. 650; Chitty, ut supra, 74–5; 2 Hutch. 171 ; Bank. 1. 2. 55. 811. By the 33 Geo. III. c. 55, s. 1, and 4 Geo. IV. c. 29, s. 1, any apprentice, on whose binding not more than twenty-five pounds has been paid, may complain against his or her master or mistress, of any ill usage, to any two or more Justices assembled at any special or petty Sessions of the Peace. The complaint must be made on oath, and the master or mistress summoned to appear and answer to it. Upon the complaint being proved, the Justices may impose a fine not exceeding forty shillings, as a punishment for such ill usage, and, by a warrant under their hands and seals, recover the same by distress and sale. If there be no distress, the “per- son or persons shall be committed to the house of correction, for any space of time not exceeding ten days.” The fine, when recovered, may be applied and disposed of for relief of the poor of the parish or town where the offender resides, or paid and applied to the use and benefit of the apprentice, as a com- pensation for the injury he or she may have sustained by rea- son of said ill usage. The party aggrieved by the imposition of the fine, may appeal to the Quarter Sessions, giving ten days' notice. - 812. By the 4 Geo. IV. c. 29, s. 2, any two or more Jus- tices of the Peace, in any case where they shall direct any ap- prentice or apprentices to be discharged in virtue of the above recited acts, are directed to take into consideration the cir- cumstances under which the apprentice or apprentices shall be so discharged, and to make an order for the master or mis- tress to refund all or any part of the premium or premiums paid on the binding of the apprentice, as the Justices in their discretion shall see fit. If the master or mistress shall neglect to pay the sum, to be refunded, to the person appointed by the Justices to receive it, then it shall be lawful to recover the same by distress and sale, by warrant under the hands and seals of such two or more Justices in petty Sessions. If there 220 COMPLAINTS BY MASTERS AGAINST APPRENTICEs. be not sufficient goods and chattels whereon to levy the same, “ then it shall, and may be lawful for such Justices to commit such offender or offenders to the house of correction for any time not exceeding two months, unless the sum or sums or- dered to be refunded, with all costs, shall be sooner paid and satisfied.” - - 813. The Justices have power to order the master to de- liver up all the apprentice's clothes. 814. A conviction on the 4 Geo. IV. c. 34, of an apprentice for misbehaviour, must show on the face of it that the defen- dant is an apprentice within the 4 Geo. IV. c. 29, which ex- tends the previous act to applications, upon whose binding out no larger sum than £25 has been paid. Real. v. Taylor, 7 D. and R. 622. See 821. 815. By 4 Geo. IV. c. 34, s. 2. all complaints, differences, and disputes which shall arise between masters and mistresses, and their apprentices, within the meaning of the above recited acts, or any of them, touching or concerning any wages not exceeding ten pounds, shall be heard and determined by one or more Justice or Justices of the Peace of the county or place where such apprentice or apprentices shall be employed. The Justice or Justices are empowered to summon the mas- ter or mistress to appear within a reasonable time, but not to apprehend ; and they are directed to examine parties and wit- messes on oath; and thereafter to make an order for payment of such wages as shall appear by the indenture to be due; and failing payment within the time named by the Justice or Jus- tices, then a warrant shall be issued to levy the same by dis- tress and sale. Crawford v. Wilson, 19th Nov. 1838, 2 Swint. 201. - 2. By Masters. 816. By 20 Geo. II. c. 19, s. 4, two Justices may, on com- plaint of the master or mistress against an apprentice, within the meaning of the act, and of 4 Geo. IV. c. 29, s. 1, con- cerning any misdemeanour, miscarriage, or ill behaviour in his or her service, examine and determine the same, and punish the apprentice by “commitment to the house of cor- rection, there to remain and be corrected, and held to hard COMPLAINTS BY MASTERS AGAINST APPRENTICEs. 221 labour for a reasonable time, not exceeding one calendar month, or otherwise by discharging such apprentice.” The words “ and be corrected" means corporeal punishment, by whipping. 5 Ch. Burns, J. P. 540. But this part of the ac has never been acted upon in Scotland. - 817. By the 1 Geo. IV. c. 57, corporeal punishment by whipping is abolished, in the case of female apprentices. 818. By the 4 Geo. IV. c. 34, the powers of the magistrates are farther extended. By section 1, it is lawful not only for any master or mistress, but also for his or her steward, manager, or agent, to make complaint upon oath against any apprentice within the meaning of the act, to any Justice of the county or place where the apprentice is employed, of or for misdemeanour, misconduct, or ill behaviour of such appren- tice, to hear and determine the complaint, and to punish the offender by abating the whole or part of his or her wages, or otherwise, by commitment to the house of correction, there to remain and be held to hard labour for a period not exceed- ing three months. See 311. . 819. The words misdemeanour, misconduct, or ill beha- viour, include all acts of an apprentice done in opposition to the duty imposed on him by the indenture :—refusal to work—insolence to his master or foreman—gross negligence —immoral conduct, &c. Robinson v. Mitchell, 4th July 1829, 7 S. D. 835. Crawford v. Wilson, 2 Swint. 201. 820. By the 10 Geo. IV. c. 52, apprentices in any of the trades enumerated in the act 17 Geo. III. c. 56, fall within the 4 Geo. IV. c. 34, as if they had been specially named in the latter act. - - 821. The provisions of 4 Geo. IV. c. 34, s. 1. are appli- cable to the case of an apprentice under a regular indenture, with a cautioner and clause of registration. Crawford v. Wil- son, 19th Nov. 1838, 2 Swint. 201. But the provisions do not apply to apprentices to a higher class of persons, as sur- geons, attorneys, &c. Frame v. Campbell, 9th June 1836. 822. By section first of the act, the Justice has power to grant, on the complaint, a warrant to apprehend the appren- tice ; but he has no power to grant warrant to convene, cite, or summon the apprentice to appear before any Justice, it 222 COMPLAINTS BY MASTERS AGAINST APPRENTICES. being contrary to the statute. A judgment of the Justices was put aside, on the ground that the apprentice was appre- hended under a warrant authorizing the officer of court to convene him before the Justices, and who voluntarily went with the officer. Crawford v. Wilson, 19th Nov. 1838, 2 Swint. 201. In that case the Lord Justice Clerk held, that no action of damages lay against the Justice who granted so innocent, and, in one sense, an inoperative warrant. The error lay in the officer exceeding his authority. Lord Moncrieff held, that had the apprentice deforced the officer in attempting to appre- hend on such a warrant, the apprentice would not have been guilty of an offence. - 823. An application, under 4 Geo. IV. c. 34, was made against an apprentice for being frequently absent without leave, refusing to obey orders, and giving insolent language when desired to do his duty. He was apprehended, and on admitting his misconduct, the master consented that the Jus- tice should suspend judgment, which was accordingly done. Some weeks after this, the master presented a minute to the Justice, stating that the apprentice had become worse and worse, and had enlisted in the army. Warrant was craved, not only for the apprehension of the apprentice, but for punish- ment, under the Mutiny Act, for denying that he was an appren- tice, and taking the enlistment money under a false character. He was apprehended accordingly, and brought before the Jus- tice who had attested him, and sentenced to twelve months' imprisonment. The Court held the whole procedure to be illegal,—1st, Because the procedure for misconduct, under the 4 Geo. IV. c. 34, had reference only to the relation of master and servant, and pointed out the short duration of three months’ imprisonment as a punishment; and, 2d, The fraud, under the Mutiny Act, was an offence which Government might or might mot charge against the apprentice. Where he is so accused of the offence, punishment cannot follow, except he be convicted on his own confession, or on a verdict of a jury before the Sheriff. Robinson v. Mitchell, 6th July 1829, 7 S. D. 835. See Enlistment of Apprentices, Chap. V. 824. If a master wishes to get rid of a bad apprentice, or an apprentice of a bad master, they may proceed under the BESERTION OF APPRENTICE FROM SERVICE. 223 4 Geo. IV. c. 29, and set forth a sufficient ground to warrant the discharge. The usual causes for which the apprentice complaims against the master, are cruelty and misusing his contract, either by neglecting to instruct him, or the like ; and when the master applies to get quit of his apprentice, it is ge- nerally upon the ground of incorrigible misbehaviour. The complaint must be made to two Justices, and by the master or mistress personally; but it has been found that that statute extends to a written complaint preferred by the master, and verified by the oath of another person. Chitty on Mas, and App. 106. . CHAPTER VIII. DESERTION OF APPRENTICE FROM SERVICE.; 825. The master, when the apprentice deserts, may compel him to return to his service by summary procedure at com- mon law, or proceed under the 4 Geo. IV. c. 34, sec. 1. 1. At Common Law. 826. The master is entitled to a warrant to compel the ap- prentice to return to his service, under pain of imprisonment; but not to a warrant of imprisonment, until he shall find cau- tion not only to return, but to fulfil the obligations in the in- denture, because security to fulfil them, under a penalty, has been granted. If no penalty has been stipulated for, then a magistrate cannot, at the request of one party, make a new contract, so as to oblige the other. See 69. 827. When an apprentice, bound for three years under a penalty, but without a cautioner, deserted from his service, the master craved the Sheriff's warrant to incarcerate the appren- tice, until he found caution “to fulfil his engagement; or otherwise, ordain him to return to the petitioner's service * Reference is made to Chapter XXIV. for the procedure in cases of desertion, 224 DESERTION OF APPRENTICE FROM SERVICE. within twenty-four hours after the date of such order, and to continue therein and fulfil his said engagement, aye and until the expiry of said indenture; and in the event of his refusing, or at any time ceasing to obey the said order, to grant war- rant for apprehending and committing him to prison, until he give sufficient caution to obey the same.” The Sheriff grant- ed warrant to imprison the apprentice, “until he give suffi- cient caution to return to his employment, and continue therein and fulfil his engagement with the petitioner, all in terms of the prayer of the petition.” The warrant was sought to be suspended, on the ground of its illegality, in so far as it compelled the apprentice to return and fulfil all the heads and conditions of his indenture, not under the penalty in the in- denture, but under judicial caution. The Court held that the warrant was illegal to the extent complained off; and as the question was one of police, the proceedings were in some res- pects of a criminal mature, which could not be restricted so as to limit the warrant, to the extent of ordaining the apprentice to find caution that he would return to service, and continue therein, which would not have been illegal. Wright v. M. Gre- gor, 9th Feb. 1826, 4 S. D. 434; Stewart v. Stewart, 21st June 1832, 10 S. D. 676, and 21st May 1833, 11 S. D.628; Bookless v. Normand, 20th Nov. 1833, 11 S. D. 50. The bond of caution granted in the case of Wright was found not binding. Wright, 28th June 1827, 5 S. D. 855. 828. An absenting of an apprentice beyond the time of leave on a Sunday, is not an unlawful absenting within the meaning of the indenture. Wright v. Gibson, 3 Car. and Pay. 584. 829. If the apprentice receive permission to absent for a given time, and stay away beyond the period granted, it is ab- senting under the indenture. If he absent, and his master take him again into his employ, and an action afterwards be brought for such absenting, the taking back, to constitute a defence, must be specially pleaded. Wright, ut supra. 830. It is not desertion, if the apprentice leaves on any ground which can be legally held a violation of the indenture by the master, Munro, 7th July 1837, 15 S. D, 1262, DESERTION OF APPRENTICE FROM SERVICE. 225 2. Statute Law. 831. By the act 4 Geo. IV. c. 34, s. 1, a master or mis- tress, or their steward, manager or agent, may proceed against an apprentice, on whose binding out not more than twenty- five pounds Sterling was or shall be paid, (4 Geo. IV. c. 29, s. 1.) for absconding from his service, by a complaint upon oath before any Justice where the apprentice shall be found, who is empowered to punish by abating the whole or part of the wages due, or by committing him to the house of correc- tion for a period not exceeding three months. By the 10 Geo. IV. c. 52, apprentices within the meaning of 17 Geo. III. c. 56, are now brought under the 4 Geo. IV. c. 34, s. 1. 832. The provisions of the 4 Geo. IV. c. 34. are applicable to the case of an apprentice under a regular indenture, with a cautioner and clause of registration. Crawford v. Wilson, 19th Nov. 1838, 2 Swint. 200; Duthie v. Birnie, 20th May 1839, 2 Swint. 385. - 833. The act does not apply to apprentices on whose in- denture a higher premium than £25 has been paid; nor to apprentices in learned professions; for whose misconduct it was not thought necessary to provide such summary remedies. Frame v. Campbell, 6th June 1836. 834. Proceedings against an apprentice for desertion, found- ed on the third instead of the first section of 4 Geo. IV. c. 34, were set aside, and damages awarded against the law-agent. Lord Jeffrey, in alluding to this blunder, remarked, that the first section “dealt professedly with apprentices, and with them only; the third section, with servants and other persons hired and engaged to work on special contracts; and being almost identical with the former in the substance of its enact- ments, could not be supposed also to relate to apprentices without imputing to the legislature the most absurd and pre- posterous repetition. The very substance of the third section might have shewn any attentive reader that it could not relate to apprentices, since it speaks exclusively of persons whose only contract with their employers is a contract to work for hire, and who are contemplated as persons sui juris, and com- pletely capable of binding themselves by such a contract. P 226 T}ESERTION OF APPRENTICE FROM SERVICE. Now the contract with an apprentice, though it may include a contract to work for hire, is primarily a contract to teach, and to learn a certain trade or handicraft; and being gene- rally entered into with persons under age, is almost invariably concluded, not only with them, but with their parents or other guardians eaſpressly taking burden for them, as is the case with the indentures referred to, and produced with the original pe- tition by the defender, and yet libelling only on the third sec- tion relating to independent contractors, not with a master or mistress, but with an employer for him. In these circum- stances, it is quite idle in the defender to say, that the first section related only to apprentices of a particular description, and, conceiving that the third was intended to reach all de- scriptions, was therefore selected as the safest for his purpose. In the first place, it is manifest that the apprentices excluded from the operation of the first section were not intended to be affected by the statute at all, as belonging, like apprentices to surgeons, attorneys, &c. to a higher class of persons, for whose misconduct it was not thought necessary to provide such summary remedies. But, second, whoever might be without the provisions of the first section, the defender could not possibly doubt, that the person he was to prosecute was within it. It extended, in express terms, to all who had not paid an apprentice fee of £25 or upwards. But, first, it is a matter of notoriety to any one in Paisley, that no such fee was ever paid in the trade of calico printing ; and, second, the defender had the indenture before him, which shewed that there was no such fee.” Frame v. Campbell, 6th June 1836. 835. In a case for desertion, the master is not entitled to lead evidence of the general conduct and habits of the ap- prentice, when he is out of the master's premises. Gunn, 21st July 1835, 13 S. D. 1142. 836. If an apprentice be charged with desertion, and en- list, and afterwards be reclaimed by the master, the Justices have no power to punish the apprentice, under the 4 Geo. IV. c. 34, for false statements made by him under his enlistment. Robinson v. Mitchell, 6th July 1829, 7 S. D. 835. 837. Reasons of suspension, founded inter alia on the vagueness of the complaint by the master, were repelled. DESERTION OF APPRENTICE FROM SERVICE. 227 Milloy v. Sneddon, 20th May 1839, 2 Swint. 381 ; Duthie, 2 Swint. 385. Where the suspender alleged, 1st, that the peti- tion was originally presented, and the oath appended to it, writ- ten out, in the name of Jämes Goold, which were altered to John after both were signed ; and, 2d, that it contained dele- tions and erasures of which no notice was taken at the end of the petition, the Court refused to suspend the Justice's war- rant of imprisonment. Gerrond v. Goold, 20th May 1839, 2 Swint. 390. 838. Where the Justice granted warrant to imprison, and in the same warrant allocated to the defender an aliment of 4d. per diem ; which he alleged was not only insufficient for his maintenance, but unauthorized by the statute, and incon- sistent with the prayer of the petition;–the Court held the warrant good, as the aliment allocated was the usual jail al- lowance of the place. Gerrond v. Goold, ut supra. 839. An apprentice having been convicted of desertion un- der the statute, and sentenced to one month's imprisonment, and he having absconded before the sentence was carried into effect, and having been apprehended two months afterwards without a warrant, and carried before the Justice by whom the former sentence was pronounced, held that it was compe- tent for the Justice, without any petition being presented for the application of the former judgment, to find the apprentice guilty of desertion, and of not returning to his service, and to sentence him of new to one month's imprisonment. Duthie v. Birnie, 20th May 1839, 2 Swint. 385. 840. An apprentice engaged for six years, from and after the 1st March 1833, to an iron founder. The indenture con- tained a provision, that he should not absent himself from his work without leave, “excepting in case of sickness; and for each day he shall so absent himself, excepting as said is, that he shall either pay to his master 2s. Sterling, or serve him two days for each one thereof, at the expiry of this indenture, in the master's option.” Service was given under the inden- ture until the 28th June 1838, when the apprentice abscond- ed and went to England. On the 8th July 1839 he returned home, when his master presented a petition, under 4 Geo. IP. c. 34, s. 1, praying for his apprehension and imprisonment. 228 CAUTIONERs for FULFILMENT He was accordingly convicted of a breach of the statute, and sentenced to remain at hard labour in the house of correction for three months. The defendant having been incarcerated, presented a bill of suspension and liberation, on the ground, inter alia, that the section of the statute founded on in the petition, applies only to the case of an apprentice under a current indenture, whilst that of the suspender's had expired more than four months before the petition was presented. It was argued, that the inapplieability of the statute founded on, to the circumstances of the case, was proved by the fact, that one of the prescribed modes of punishment was abate- ment of wages; and that the statute under which the com- plaint ought properly to have proceeded, was the 6 Geo. III. c. 25. The Court of Justiciary refused the bill, with ex- penses. M*Gregor v. Balfour and Mº Callum, 4th Dec. 1839, 2 Swint. 451. See 757. 758. - CHAPTER IX. CAUTIONERS FOR FULFILMENT OF AN INDENTURE. 841. A cautionary obligation for an apprentice, that he shall fulfil the terms of his indenture, is prospective. From a prospective engagement, the cautioner cannot withdraw suddenly, and without due notice. It is incumbent on the master, for the protection of the cautioner, that prudent care and vigilance be exercised over the apprentice; and when the cautioner happens to die during the period named in the indenture, the obligation is continued on the heir, not only for any loss incurred during the life of the original cautioner, but prospectively for the loss after the heir's succession. Bell’s Prin. 4th Ed. s. 287 to 289 inclusive. 842. An apprentice gave surety for his fidelity in the management of cash matters, and his employers at same time were taken bound that they should see him make up his cash monthly, which they did not do. Money having been em- of AN INDENTURE. 229 bezzled by the apprentice, an action was brought against the Surety, but the masters were found entitled to no more than they could prove the apprentice to have embezzled on the Jirst month after the embezzlement had begun. Montague v. Tedcomb, 2 Vernon, 518; Forbes, 10th June 1838, 7 S. D. 732. Although there had been no bond for fidelity, “it is the duty and implied undertaking of every man to use due care and diligence in the investigation of the accounts of his clerks and servants; and where he omits to do so, it seems an equitable principle that the surety shall be discharged, so far as the default of such clerk or servant may be the conse- quence of such omission.” Fell, 180. 843. Where an apprentice had taken goods from his master to the extent of £5000 Scots, which was proved by writ, the cautioner was assoilzied, in respect that the master, instead of bringing up the apprentice in merchandizing, had bred him as a pirate at sea, and had employed him to dispose of the goods which he had theftuously taken from other people dur- ing the troubled state of the country. Murray, 12th Jan. 1657, Decisions of the English Judges. 844. The cautioner will be relieved where the master does any act which, in law, will terminate the indenture; for the master is not entitled to violate, and then to insist on the ful- filment of the contract. Where a party granted a bond for the apprentice fee, it was allowed to be proved by the oath of the grantee, that the bond was truly so granted, which be- ing established, it was next allowed to be proved by witnes- ses, that the master maltreated the apprentice, so as not to be entitled to the whole sum in the bond, as proof of that fact by writing could not be expected. Aikman, 15th June 1665, Stair's Dec. See 797–799. 845. The cautioner for an apprentice who is a minor, has not the beneficium ordinis, in an action for loss sustained by the apprentice, nor for payment of the penalty incurred by repeated desertion. The master may proceed against the cautioner without discussing the principal. Balfour v. Hut- ton, 11th Feb. 1708, Mor. 3585. 846. Cautioners in an indenture, though bound simply, but without the words conjunctly and severally, are notwith- 230 CAUTIONERS FOR, FULFILMENT standing ultimately liable in solidum. Sibbald v. Fletcher, 21st June 1758, Mor. 588 ; Ersk. 3. 3. 62. 847. Where the cautioners have been obliged to pay for the misconduct of the apprentice, they have action of relief against him. Ersk. 3. 3. 65. 848. But no action will lie against the apprentice under the indenture, if he be a pupil. Ersk. 1. 7.62. The Court sisted proceedings in one case till the pupilarity had expired. M. Kenzie v. Scott, 5th Dec. 1695, 4 Br. Supp. 282. 849. Masters very frequently, on the desertion of an ap- prentice, without giving any notice of the absence to the cautioner, that he might use means to recover the apprentice, at once charges the cautioner for payment of the penalty in the indenture. Such procedure is harsh and unkind. The penalty cannot be demanded for a first desertion, even where the apprentice is offered back by the cautioner two days after a charge for payment of the penalty in the indenture. Malvennius, 17th Dec. 1686, Mor. 583. Nor where the apprentice is offered back a few days after he deserts from his service, in whose indenture there is an obligation to serve two days for every one he shall be absent. Learmonth v. Blackie, 13th Feb. 1828, 6 S. D. 533. The master is bound to give early intimation of desertion to the parents of the ap- prentice, or to his cautioner in the indenture, and allow them a reasonable time to bring back the deserter. 850. Neither can the master insist for the penalty, where he allows the apprentice, after desertion, to engage with, and serve another master, without challenge for a period of years. Robertson v. Scott, 19th June 1800, Hume's Dec. 20, 21. See 757. 851. Where the apprentice deserts frequently, or leaves the country, the master may sue for payment of the penalty. Allen v. Paterson, 17th June 1663, Mor. 2088. It was found, where the apprentice had entered the navy, that the apprentice-fee may be demanded by the master, unless he was either drawn by lot, or forced away vi majore. Arbuth- not v. Gentleman, 19th Jan. 1694, 4 Br. Supp. 127. See Chap. V. Enlistment of Apprentices, Suppose the indenture not in conformity with the mutiny act, and that the appren- OF AN IND ENTURE, 231 tice in consequence cannot be reclaimed after enlistment, —could the penalty in the indenture be demanded ? It is thought not If the endurance of theindenture be less than four years, parties are presumed to have been aware that, after en- listment, the apprentice could not be reclaimed, and to have so interpreted the cautioner's obligation. If the indenture exceed four years, and the proper requisites required by law be not observed, the master is then to blame, from his omission to perfect the contract. 852. The penalty, when legally demandable, may be restrict- ed to the actual damage sustained by the master through the loss of the service. Mº Gregor v. Wright, 9th Feb. 1826, 4 S. D. 434. Sibbald v. Fletcher, 21st June 1758, Mor. 588. An offer to find a new apprentice to fill up the vacant place, will not compensate for any part of the loss, for he may be incapable of effectual service for the first year or two. For- bes, 2d July 1708, 4 Br. Supp. 708. See 746. 853. A bill of suspension, of a charge for the penalty un- der an indenture, was passed without caution or consignation, in respect, 1. That both the master and apprentice were di- rectly opposed to each other in their allegations as to the cause of desertion; and 2d, That the apprentice had found caution for implement of the indenture, who, with the cautioner, were parties in the suspension. Munro v. Clark, 7th July 1837, 15 S. D. 1262. See also Anderson v. Moon, 24th Jan. 1837, 15 S. D. 412. {} HAPTER X. CHIMNEY SWEEPERS. 854. By the 4 and 5 Wm. IV. c. 35, apprentices of a chimney sweeper must be bound after the form prescribed by the act, and the indenture approved of by two Justices where the master resides, after examination of the apprentice as to his willingness to serve. Their approval must be writ- ten on the indenture in presence of the contracting parties; 232 CHIMIN EY SWEEPERS. and the approval repeated on every assignment of the inden- ture. Sec. 9. 10. 13. 855. If the apprentice can, before two Justices, instruct ill usage or breach of indenture against the master or mistress, he or she are subject to a penalty not exceeding £10, nor less than 40s. The master, on the other hand, may complain against his apprentice, and the Justices are empowered to proceed as in other cases between master and apprentice. See 806. 856. No child under ten years can be bound as an appren- tice to this business; all agreements with such children are null. 857. The master must be a householder and pay taxes be- fore he can take an apprentice, or employ in his trade any child under fourteen years of age. He cannot have more than four apprentices, nor more than two boys upon trial, at one time. By the act, the apprentices cannot be let out to hire by the day or otherwise. 858. Every apprentice when on duty must wear a leather cap, having a brass plate in front, with the master's name en- graven thereon ; also the apprentice's name and date of inden- ture: a neglect of this renders the master liable to a penalty not exceeding £10, nor less than 40s. He is also subject to a penalty if the apprentice shall call or hawk the streets of any city, town or village. 859. The master cannot employ a child under fourteen years of age, unless he be an apprentice, or a boy serving him on trial, under a penalty. 860. Persons requiring or compelling an apprentice, or person of any description, to ascend a chimney flue, for the purpose of extinguishing a fire therein, may be punished criminally for a misdemeanour. 861. Before a boy can be taken on trial, he and his parents or guardian, with the master, must appear before two Justices where the master resides, who are required to enter into a register, the age, name, and residence of the boy; the names and residence of the parties accompanying him ; the name of the intended master; and also the period of trial, which com- mences from the date of the register, and endure for not longer than two months. After the recording, the boy must ADDEN DA. 233 work in all respects as an apprentice, and he must be of the full age of ten years. 862. All indentures with chimney sweepers prior to 25th July 1834, remain in force. 863. The penalties in the act are recoverable before two or more Justices;–one-half goes to the informer, and the other half to the poor of the parish. Where the penalty exceeds f5, or the imprisonment adjudged exceed one month, the party aggrieved have the right to appeal to the Quarter Sessions. Note.—There is a bill presently pending in Parliament, as to the em- ploying of children in the sweeping of chimnies, which has not yet pass- ed into a law, June 1840, ADDENDA. 864. Every trade has its rules and regulations, and the contract of service is understood to embrace these, unless there be a special exemption made by the parties at the time of contracting. 865. A birley or conjunct herd. This contract is peculiar to the Highlands of Scotland. The servant is hired for the season to herd the cattle belonging to the pendiclers or cottars of a village, on a common or promiscuous pasturage allotted to the locality; or to small farmers, who occupy a pasture jointly. The employers either find the herd bed and board, or he must bed and board with his employers in rotation, and in proportion to their respective stocks. If he be detained by the weather from herding, he must render himself useful at home to the employer with whom he shall then be residing. The employers must, at the sound of the herd's horn, turn out their cattle and attend on them at their return from pas- ture; but the herd must loose and tie the cattle of the employer with whom he lives at the time, and red their stalls. The wages are paid in proportion to the number of cattle kept by each employer. 234 ADDEN DA, 866. With reference to paragraph 108. It has been de- cided in England, that if a man undertake to perform services without any view to a reward, but with a view to a legacy, he cannot, after the death of the person for whom they were per- formed, set up a demand for such services against the testator's estate. Le Sage v. Coussmaker, 1 Esp. 187. 867. Referring to paragraph 324. A post-boy has board, but no wages. If he resides out of his employer's house, he has a weekly sum allowed him in lieu of board. Post-boys must be in close attendance in the stables, and take their turn of driving or posting as they come. 868. With regard to 325 and 326. The guard of a stage- coach is the party who carries the way-bill, and receives all monies on the road; with the mail, the driver performs these dutios. 869. Supposed Disobedience.—An action was brought, at the instance of a female servant, for wages and board-wages, under the following circumstances:—The pursuer received intimation from a near relative, that her mother was on her death-bed. On receipt of the letter, she applied to her mis- tress for liberty to visit her mother, as she had not seen her for nearly three years, and at the same time offering to pro- cure another servant in her place during the day or two that she would be absent ; but the request was refused. Next day she renewed and pressed her application, adding, that she could not think of her mother dying without seeing her; but her mistress again refused, although there was another ser- want in the family, and stated that, if the pursuer went, it would be contrary to her express orders, and would no longer be her servant. The girl stated that she must go, whatever were the consequences. She then left the house to go with the coach; but, being too late for that day, she returned and stated to her mistress, that the coach had started, but that she would go the succeeding day. She was ordered by her mistress to take away her trunk from the house ; and, on ask- ing her wages for the time she had served, they were refused. The same night, a letter, on behalf of the girl, was sent to her mistress, stating that she would be only absent for two days, when she would return to her place, and offering to pro- ADDEN DA, 235 cure a substitute in her absence. The pursuer next day paid her filial visit, and a few days thereafter her mother died. In Court the mistress admitted the pursuer's statement, and that she had never found a fault to the girl before, but gave as a reason in Court for her refusal, that some of the family were unwell; that she thought the servant was obliged to obey her mistress's orders; and that, when the servant left, an arrange- ment was entered into between them, that the girl was not to return, nor claim any wages. This was denied on the part of the pursuer; and after examination of the defender's two servants, whose evidence went to confirm the girl's statement, Sheriff Watson observed, that the case was a very painful one, and that, when formerly before him, he advised the par- ties to settle it out of Court; but, as they had not, he would give judgment. That with regard to the arrangment alleged by the defender, of the girl giving up her claim, her whole conduct showed that this was not the case; and that, as to the law ön the point, he was of opinion that, under the trying circumstances in which the girl was placed—considering that she had offered to get another servant during her absence, and that she had done every thing in her power to obtain her mistress's consent—she was entitled, at least, to her full half year's wages, and decerned accordingly. The Sheriff re- marked, that for a mistress to prevent a servant from going to see a dying parent, would be supposing a frightful state of society, and would indeed be a melancholy picture of human life. (Aberdeen Sh. Court, 1840.) It may here be remarked, that the moral and religious condition of domestic servants are now greatly improved, notwithstanding it be too com- mon to decry their usefulness. The duty of the law is, to protect that class from the caprices of temper, gusts of pas- sion, the overbearing cruelty of domestic tyranny, and the unrestrained feelings of employers; otherwise it would fre- quently be the means of inflicting on servants a cruel and un- lawful punishment. A faithful discharge of the duties and obligations imposed by the relation of master and servant, is of the deepest importance to the comfort, happiness, and well- being of society at large ; and as the employer has the greater advantage in discharging these obligations, they produce, when 236 A DiDEN DA, well and faithfully performed, a most grateful return in the kindly disposition and happy temper of those to whom they are rendered. 870. A judgment was lately pronounced by the Magis- trates of Leith, under the recent statute as to the arrest- ment of workmen's wages,—the general application of which, we think, may be useful, not only in that quarter, but in other parts of the country. We need not enter into any detail of the circumstances, which are simple enough, and may at once be seen from the subjoined opinion, which guided the Magis- trate's opinion, given by their legal assessor, A. S. Logan, Esq. advocate. - “The point which, in this case, has been submitted to my opinion, regards the extent to which, under a recent act, (1 Victoria, c. 41, s. 7,) the wages of the defender, who is an operative weaver, ought to be regarded as alimentary, and, as such, not subject to arrestment at the instance of the pur- suer, who is his admitted creditor. The case itself presents no great difficulty; but it has been thought that—regard be- ing had to the circumstances and condition of the labouring classes in and around Leith—it is desirable that it should (if possible) give occasion to some general rule, which, in all similar instances, may define the rights of workmen and their creditors, as well as regulate the conduct of masters, in event of their being rendered arrestees. This object, which is one of much consideration and importance, is embarrassed by not a few difficulties, as well in principle as practice. “The provision of the statute in question is in these words: —‘ Wages of labourers and manufacturers shall, so far as ne- cessary for their subsistence, be deemed alimentary, and, in like manner as servant's fees and other alimentary funds, not liable to arrestment.”—What proportion of such wages shall in any case be deemed alimentary is left to the discretion of the judge, in the event of the matter being brought before him. Now, that discretion may either be applied to each case, ac- cording to its individual circumstances, just as it arises; or it may engage itself in the formation of a general and compre- hensive rule, which—being framed on a sufficiently broad and accurate view of the condition of those classes within his ju- ADDEN DA, 237 risdiction which are more immediately concerned in its appli- cation—he may declare beforehand to be applicable to all future cases of the same order, irrespective of the trifling specialties which may occur in each. The propriety of es- tablishing such a rule seems obvious, as, among other advan- tages, it will certiorate those providing furnishings to work- men, how far they ought to relie on the diligence of arrestment —masters, what proportion of arrested wages they may with safety pay over to their workmen, and workmen themselves, what part of their wages they may reckon on, during times of sickness or inadequate employment, as a fund of credit avail- able for the supply of their immediate wants. Besides, if such a rule were fixed, duly published, and resolutely acted on, much of the expense and annoyance consequent on actions of furthcoming, might be avoided; and, in many instances, even the necessity of arrestment itself might be spared. “Nor—whilst such is the obvious expediency of the pro- posed rule—do there seem to be any grounds for questioning its legality; the Second Division of the Court of Session having—in a case rising out of the Glasgow Cotton-Spinners’ Association, ( Shanks and others v. Thomson, 10th July 1838, 14 D. B. M. 1353)—sanctioned an inquiry into the amount of wages payable to that class of operatives—with the view of fixing what proportion of those due the defenders (nearly 1100 in number) ought to be declared free from arrestment. That inquiry was directed to be made by Mr. Sheriff Alison, who returned to the Lord Ordinary a very elaborate report, in which the policy of establishing a general rule, applicable to wages in general, is very fully and ably canvassed. Two modes or forms of such a rule are described as existing,-one of them in his own county, the other in Dumbartonshire. By the former, no wages, unless amounting to more than twelve shillings per week, are subject to arrestment; by the latter, one-half of all wages, whatever their amount, is liable to that diligence. Such are the two existing forms of the rule, which indeed does not seem to admit of greater variety ; and after the fullest and most anxious consideration—in which I have procured such information as I could regarding the circumstances of the working-classes in and about Leith—I 238 ADDEN DA. am inclined to recommend the adoption of the principle of the former one, joined, however, to a mode of applying it some- what different from any yet adopted elsewhere. “The Dumbartonshire form of the rule unquestionably possesses the great recommendation of providing for a work- man, irrespective of the amount of his earnings, a certain fund of credit available in the various contingencies to which his mode of life is subject. But, on the other hand, it is exposed to the very serious disadvantage of pressing severely on the worst paid classes, by withdrawing one entire moiety of a weekly pittance, amounting frequently to not more than six, eight, or ten shillings. What, however, has chiefly moved me in preferring the Lanarkshire form, is the circumstance that the Dumbartonshire one must be chiefly of advantage among a working population oxpoged to great, Sudden, and not un- frequent variations, both in the amount and the rewards of la- bour; whilst in Leith, as I am credibly informed, the rates of remuneration—though in no case very high—are almost al- ways uniform, and employment next to quite certain. “In applying, then, the principle of the Lanarkshire mode, the first thing is to adopt a minimum of wages—all under, and not above, which shall be held to be alimentary. In Glasgow, that, as already stated, is fixed at twelve shillings per week ; but,-regard being had to the cost of living and lodging in Leith, as compared with that city, I am of opinion, it ought to be fixed here at not more than ten, an amount which—probably too low for a densely peopled manufacturing city, where there is a proportionable pressure on the means of subsistence, and probably too high for most country villa- ges and small towns, where the reverse is the case—seems fairly enough adapted for the medium position of such a place as Leith. I would propose, therefore, that where a work- man's weekly wages amount to ten shillings, or to any smaller sum, the whole thereof should be deemed alimentary; and that, consequently, his employer should be in safety, notwith- standing arrestments laid in his hands, to pay to the workman their full amount. “In regard to wages above ten shillings, I should by no means recommend that the whole surplus should be declared ADIDENDA. 239; arrestable. For, in fixing on that sum as the alimentary mi- nimum, I do not consider it as universally adequate, but asbare- ly sufficient for human subsistence, viewed with regard to the probable wants and habits of a person whose skill has never been able to procure for him a greater weekly return. It is plain, therefore, that such a sum may not amount to the ali- mentary minimum in relation to another workman, whose skill has always procured for him a considerably higher remunera- tion, or who, from the mere accident of better-paying employ- ment, has, in point of fact, been at no time without it. To such a person, it is obvious, the means of endurable subsist- ence must cost somewhat more than to the other; and there- fore, wherever the weekly wage amounts to more than the minimum already fixed, I would recommend that only a pro- portion—increasing, however, in a ratio to be immediately ex- plained—of the surplus should be arrestable. Thus, in wages ranging from more than ten up to fifteen shillings per week, ten should, in the first instance, be set aside as the alimentary minimum ; and, in the next place, one-half of the remainder should be added to that fund. For example, a workman earn- ing fifteen shillings per week would thus be allowed 12s. 6d. for his support and that of his family; whilst the remaining 2s. 6d. would be forthcoming to his arresting creditor. Again —in wages ranging from more than fifteen up to twenty shil- lings per week, the same principle would fall to be applied, only with a partial difference in the proportion ; as I propose to subject to arrestment two-thirds of the surplus above fifteen shillings. For example, a workman earning twenty shillings per week, would thus be allowed 14s.2d.; whilst the remain- ing 5s. 10d. would be subject to his creditor's diligence. The workman's proportion would, in such a case, be composed of these items: Alimentary minimum, tº tºg 30 10 0 One-half of the first five shillings of surplus, - ſº tºº {--> Er {) 2 6 0 1 8 One-third of the second do. gºs 4: – f'() 14 2 240 ADD ENDA, Whilst the creditor's proportion would stand thus: One-half of the first do. tº ºn £0 2 6 Two-thirds of the second do. rº 0 3 4. – £0 5 10 #1 0 0 “Once more—in wages ranging from more than twenty up to twenty-five shillings per week, exactly the same rule ought, I submit, to be applied; with this addition, that of the third five shillings of surplus, only one-fourth should be al- lowed to the workman. In such a case, the workman's and creditor's proportions respectively would be 15s. 5d. and 9s. 7d. And, in the very unusual case of wages amounting to more than twenty-five shillings per week, I should recommend that, whilst the above rule should be applied to the extent of that sum, all beyond it should be arrestable. “The application of the rule to intermediate rates of wages, is, as will at once be seen, simply matter of arithmetical com- putation.” - 871. Justices are authorized by statute to call out te— nants with the cottars and servants, for upholding of highways, or give an equivalent in money. Iv. Ersk. 1. 4. 14. The statute comprehends all classes of inhabitants within burgh, —householders, merchants, tradesmen. Trustees of Perth and Queensferry Turnpike, 1st Feb. 1757; affirmed on appeal, 10th April 1757, Fac. Coll. Also apprentices to artificers in a town. Mackay, 27th Nov. 1807, Fac. Coll. 872. With reference to paragraphs 523 to 528. Sheriff Colquhoun of Inverness found a master not liable in aliment to a child, under the following circumstances: The master engaged a female servant to attend on his shop in Inverness, but shortly thereafter he left that place and went to London. The servant voluntarily followed. While in the latter place, a familiar intimacy began, which gave birth to a child. The master thereafter returned to Scotland; and shortly after he was followed by the servant, who instituted an action before the Sheriff for aliment to her child. The defences offered were, 1. That the intimacy began in England. 2. That the AI3 DIEN DA, 24l child was born and domiciled in London. And, 3. That the mother's claim must be governed by the statute law of Eng- land, which imposes the burden of alimenting the child ex- clusively upon the mother. Effect was therefore given to the defences. (Inverness Sh. Court, 1839.) Although, legally speaking, the case was properly enough decided, it is to be re- gretted that the statutory law of England throws the burden of alimenting, &c. exclusively on the female, as the penalty of non-adherence to virtuous conduct, because in all cases of se- duction the male is the urging party, under features variously disguised, which the pliant party is induced to believe sincere. The statute is understood to have given rise to cases of unpar- alleled cruelty; and for the sake of humanity, it is to be hoped, that the legislature will see reason to modify its severity, by imposing the greater burden on the father, or on both parents jointly, as in Scotland. 873. Wilful burning of houses, corns, coalheughs, and woods, is, by the common and statute law of Scotland, a capital offence; the wilful burning of heath, furze, mosses, stacks of fuel or hay, or any sort of moveables, though by law not capital, is an indictable offence, punishable according to the magnitude and peril of the offence with severe arbitrary pains. I Alison, 429–447. 874. To attempt wilful fire-raising; or to solicit or insti- gate others to commit it, although they refuse compliance ; or, to threaten fire-raising, though the threat be not put into execution, are all cognizable offences, and punishable. 1 Alison, ut supra. 875. Church-going.—A female servant claimed wages and board for the year ending Whitsunday 1840, on the ground of illegal dismissal. In defence, the master admitted the dis- missal, but justified himself, on the ground that there was an agreement, that the pursuer should get to church every Sunday forenoom, and her fellow-servant in the afternoon, and that both should get out alternately on the Sunday evenings. On the Sun- day previous to the pursuer's dismissal, she left the house to go to church in the forenoon, but did not return till 9 or 10 o'clock at night. On the following Sunday, on which night it was the turn of the other servant to get out, the master forbade her to Q - 242 AD I) EN ID A. go to church, as she had been out all the previous Sunday, in order that her fellow-servant might have a whole day's like pri- vilege. The pursuer stated, that she was detained all the pre- vious Sunday in consequence of indisposition, but which she mever before mentioned. It was admitted that, in the face of her master's orders to remain at home that day, the pursuer persisted in going, and did go to church on the foremoon; and on her return between sermons she was dismissed. Mr. Sheriff Barclay held that the order given by the master was reason- able, even had the pursuer's indisposition on the previous Sun- day been admitted or proved, and accordingly assoilzied the mas- ter, thus finding neither wages nor board due to the servant. (Perth Court, July 1840.) It may be here remarked, that servants ought not to stand too pertinaciously to their contracts, in regard Lu gelling away fruin home on their particular Sun- days. Bell's Prin. 177. No master or mistress, of correct and upright feeling, would detain a servant unnecessarily from his or her place of worship on Sunday : to do so, would be held in law domestic tyranny, and consequently a breach of the contract. On the other hand, no servant will be justified who shuts his or her eyes to a reasonable cause for remaining at home on his or her “Sunday out,” and particularly when the reason is expressed by the master, and his order given to remain at home. See 262. There is no ground for doubting a master or mistress's power to prevent a servant from exercis- ing undue means over her fellow-servant, to gain an advan- tage in the privilege of getting to church. See 200. 253. 876. Arles.—A case occurred lately in the Sheriffs' Small Debt Court of Berwickshire, iu regard to arles, which is no- ticed chiefly to show what weight is due to the giving of them, and how far they are necessary to the completion of a contract of service. The case was this: A farmer, named B., on the 1st March 1840, hired C. to act in the capacity of a miller, from Whitsunday 1840 to the succeeding Whitsunday, at a certain rate of wages. On the 24th of March the servant intimated that he had “changed his mind,” as “he did not intend to follow the milling business any more,” and for B. to provide himself with another servant. B. intimated, in return, that he held the engagement conclusive, and at the Whitsunday term ADDEN DA. 243 would expect C. to enter on his duties. At that term C. fail- ed to fulfil ; and as it was ascertained that he had engaged himself to D. as a miller to Whitsunday 1841, an action was brought by B. for damages, for non-fulfilment of the contract. In defence, C. stated that although he had been regularly en- gaged, he had not received ar!es ; that he had given timeous notice to B. to engage another servant ; and therefore that he (C.) was at liberty to contract with another master. It is reported, that the Sheriff Substitute “sustained the defence, and held the law to be, that either master or servant might get quit of their respective engagements provided they re- turned the ar!es, and intimated forty days before the term that they had changed their minds, and did not intend to en- ter their service.” The judgment of the Sheriff must have been misreported, because the law is not as his Lordship is said to have expressed, unless the arles were accepted by the mas- ter as token of rescinding the contract. Arles are not essen- tial to the completion of a verbal contract of service: see 31 to 39. If arles were necessary to complete a verbal contract, then they would require to be given to every class of servants without distinction, which is not the case in practice. To servants who reside in family with the master or mistress, arles are often given ; but why to them more than any other class of servants P It would seem that the giving of earnest money by masters and mistresses, has arisen from an undefin- ed notion of the law. The law says, that a verbal contract for one year is perfected by consent alone, and that a breach of it carries damages. After the consent is given, arles will not strengthen the engagement, nor will the return of them weaken it; for the contract can only be dissolved by mutual consent. 2 Hutch. 161, Wallace v. Bishop, 7th March 1800, Hume's Dec 383 ; Tait, voce Servant. See 242-243. The giving of arles is therefore superfluous. Some allege that earnest money is given to force the contract more seriously on the mind of the servant, and to appeal to the fact of his or her accepting of the earnest, as a mean of evidence. This is unsatisfactory, because the acts of meeting, negotiating, and consenting, must be more vividly fixed on the mind of the ser– vant than the solitary act of taking arles. Others affirm, that 244 ADD EN DA, the arles are not given to the servant as an essential required to be observed in completing their contract, but they are given as a present to the servant, according to the pleasure of the new master or mistress. Whatever motive suggested the giving of arles, the fact of their having been given for a period of time, though termed by servants to be “a custom,” never can control the law, which declares that a verbal con- tract is perfected by consent alone. The impropriety of giv- ing arles is proved by one fact, that in feeing markets it is not uncommon for a person to engage with several farmers for the sake of getting earnest money, never enter either of their service, but go to another county and there engage with a stranger,-thus showing that the giving of arles is not only unnecessary, but in fact that they have an immoral tendency. It would be for the benefit both of masters and servants, were this useless form, where it does exist, promptly put an end to. 877. Before the Justices in Fifeshire, the elder apprentices in a shop, who would not allow a new apprentice to begin to work unless he previously paid a certain sum as “drink money” to the men of the shop, were brought up under 4 Geo. IV. c. 34, and punished for misbehaviour. 878. It would be a breach of the contract of service, were a wet nurse to maltreat or neglect the infant committed to her charge ; or a nurserymaid to ill-use the children,-or ter- rify them into obedience by fearful stories,—or to circumscribe their daily walks by leading them to, and resting with them in, houses, occupied by a person labouring under a contagious or infectious disease. A P P E N D IX. The Statute, conferring power on Magistrates to punish workmen for misbehaviour in the execution of their contracts, or for desertion from their service; to punish apprentices for the like offences; and also to discharge apprentices from their in- dentures on account of ill usage by their masters or mistresses, —is as follows. 20 GEO. II. C. 19. Whereas the laws now in being for the better regulation of Preamble. Servants, and for the payment of wages to them, and to Artificers, Handicraftsmen, and Labourers, are insufficient and defective : For remedy whereof, be it enacted by the King's most Excellent Ma- jesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, and from and after the twenty- fifth day of March, which will be in the year of our Lord one thou- sand seven hundred and forty-seven, all Complaints, Differences, and Differences be- Disputes, which shall happen or arise between Masters or Mistresses, ...". e º and certain Ser- and Servants in husbandry, who shall be hired for one year or long-vants, to be de- er, or which shall happen or arise between Masters and Mistresses, ...'. and Artificers, Handicraftsmen, Miners, Colliers, Keelmen, Pitmen, Peace where Glassmen, Potters and other Labourers employed for any certain ºute I'ê - time, or in any other manner, shall be heard and determined by one & or more Justice or Justices of the Peace, of the County, Riding, City, Liberty, Town Corporate, or place where such Master or Mistress shall inhabit, although no rate or assessment of wages has been made that year by the Justices of the Peace of the Shire, Rid- ing, or Liberty, or by the Mayor, Bailiffs, or other head officer, where such complaints shall be made, or where such differences or disputes shall arise, which said Justice or Justices is and are hereby Justices to ex- empowered to examine upon oath any such Servant, Artificer, Han- sº dicraftsman, Miner, Collier, Keelman, Pitman, Glassman, Potter, or “... , 246 APPEN DIX, - - - - other Labourer, or any other Witness or Witnesses, touching any such ***.*.* Complaint, Difference, or Dispute, and to make such order for pay- for payment of 5 2 2 tº e wages due, if ment of so much wages, to such Servant, Artificer, Handicraftsman, under a certain Miner, Collier, Keelman, Pitman, Glassman, Potter, or other La- SUl Iſl. e -- e © bourer, as to such Justice or Justices shall seem just and reasonable, provided that the sum in question do not exceed ten pounds with regard to any servant, nor five pounds with regard to any Artificer, Handicraftsman, Miner, Collier, Keelman, Pitman, Glassman, Pot- on non-pay ter, or Labourer; and in case of refusal or non-payment of any sums ment, to be le- so ordered, by the space of one and twenty days next after such vied by distress tº s º ſº º * and sale. determination, such Justice and Justices shall and may issue forth his and their warrant to levy the same by distress and sale of the goods and chattels of such Master or Mistress, or person employing such Artificer, Handicraftsman, Miner, Collier, Keelman, Pitman, Glassman, Potter, or other Labourer, rendering the overplus to the owner or owners, after payment of the charges of such distress and sale. Justices to hear And be it further enacted by the authority aforesaid, That it *:::::"... shall and may be lawful to and for such Justice or Justi plaints, on oath; shall and may be lawful to and for such Justice or Justices, upon application or complaint made, upon oath, by any Master, Mis- tress, or Employer, against any such Servant, Artificer, Handicrafts- man, Miner, Collier, Keelman, Pitman, Glassman, Potter, or La- bourer, touching or concerning any misdemeanour, miscarriage, or ill- behaviour, in such his or her service or employment, (which oath such Justice or Justices is and are hereby empowered to administer), to and to punish hear, examine, and determine the same ; and to punish the offender the ººººº...”y by commitment to the House of Correction, there to remain and be commitment, º - abatement of corrected, and held to hard labour for a reasonable time, not exceed- wºgºº, or *-ing one calendar month, or otherwise by abating some part of his II]. ISSIOIle e º tº e or her wages, or by discharging such Servant, Artificer, Handi- craftsman, Miner, Collier, Keelman, Pitman, Glassman, Potter, or Labourer, from his, her, or their service or employment: And in like manner also it shall and may be lawful to and for such Justice Justices to hear or Justices, upon any complaint or application, upon oath, by any . S º such Servant, Artificer, Handicraftsman, Miner, Collier, Keelman, aints, on oath, ... º plaints, ” Pitman, Glassman, Potter, or other Labourer, against such Master, Mistress or Employer, touching or concerning any misusage, re- fusal of necessary provision, cruelty, or other ill treatment of, to, or towards such Servant, Artificer, Handicraftsman, Miner, Collier, and to summon Keelman, Pitman, Glassman, Potter, or other Labourer, and to sum- the Master, &c. mon such Master, Mistress, or Employer, to appear before such Justice or Justices, at a reasonable time to be prefixed in such sum- APPENDIX. 247 mons; and such Justice or Justices shall and may examine into the matter of such complaint, whether such Master, Mistress, or employer shall appear or not ; proof being made, upon oath, of his or her being duly summoned; and upon proof thereof made, upon and upon satis- oath to his or their satisfaction, to discharge such Servant, Artificer, º Handicraftsman, Miner, Collier, Keelman, Pitman, Glassman, Pot-servant. ter, or other Labourer, of and from his said service and employment ; which discharge shall be given under the hand and seal, or hands and seals, of such Justice or Justices, gratis. And be it further enacted by the authority aforesaid, That it shall Justices upon and may be lawful to and for any two or more such Justices, upon tiºn. any complaint or application by any Apprentice put out by the tices, parish, or any other apprentice, upon whose binding out no larger a sum than five pounds of lawful British money was paid, touch- ing or concerning any misusage, refusal of necessary provision, cruelty, or other ill treatment of or towards such Apprentice, by his or her Master or Mistress, to summon such Master or Mistress to ap- to summon the pear before such Justices, at a reasonable time to be named in such Master, &c. summons; and such Justices shall and may examine into the matter of such complaint; and upon proof thereof made, upon oath, to their and upon satis- satisfaction (whether the master or mistress be present or not, if §h € service of the summons be also, upon oath, proved) the said Justices Apprentice. may discharge such Apprentice, by warrant or certificate under their hands and seals; for which warrant or certificate no fees shall be paid. And be it further enacted by the authority aforesaid, That it shall Justices upon & © 8 º' complaint of and may be lawful to and for such Justices, upon application or Nº. ...inst complaint made upon oath, by any Master or Mistress, against any Apprentices, such Apprentice, touching or concerning any misdemeanor, miscar- riage, or ill behaviour, in such his or her service (which oath such and proof upon Justices are hereby empowered to administer) to hear, examine,” and determine the same, and to punish the offender by commitment to the House of Correction, there to remain and be corrected, and held to hard labour for a reasonable time, not exceeding one calendar month, or otherwise by discharging such Apprentice, in manner and form before mentioned. Provided nevertheless, that if any person or persons shall think Persons ag- himself, herself, or themselves aggrieved by such determination, º may ap- order, or warrant of such Justice or Justices as aforesaid, (save and except any order of commitment,) he, she, or they may appeal to Exceptions. the next General Quarter Sessions of the Peace to be held for the County, Riding, Liberty, City, Town Corporate, or place where 248 APPENDIX. such determination or order shall be made ; which said next General Quarter Sessions is hereby empowered to hear and finally deter- mine the same, and to give and award such costs to any of the respective persons, appellant or respondent, as the said Sessions shall judge reasonable, not exceeding forty shillings; the same to be levied by distress and sale, in manner before mentioned. Writ of Certior- Provided also, and be it further enacted by the authority afore- *** said, that no writ of Certiorari or other process, shall issue or be issuable to remove any proceedings whatsoever, had in pursuance of this Act, into any of his Majesty's Courts of Record at Westminster. Stannaries of Provided always, that nothing in this act contained shall extend D and tº s e ...t to the Stanmaries in the Counties of Devon and Cornwall. included in this Act. The Premium or Apprentice Fee was increased from £5 to £10 by the 33 Geo. III. c. 55, s. 1. dated 21st June 1793, by which Justices of the Peace are authorized to impose fines upon Constables, Overseers, and other Peace or Parish Officers, for neglect of duty, and on Masters of Apprentices for ill usage of such their Apprentices; and also to make provision for the execution of warrants of distress granted by Magistrates. The statute is as follows:— Costs not to exceed 40s. Preamble. Whereas it is expedient to give further powers to Justices of the peace to impose Fines upon Overseers of the Poor, Constables, and other Peace and Parish Officers, within their respective jurisdic- tions, for neglect of duty in such their respective offices, or for dis- obedience of the warrants or orders of such Justices; and it is also expedient to empower Justices to impose Fines upon Masters of Apprentices for ill usage of such their Apprentices, and also to make provision for the execution of warrants of distress granted by Magistrates : May it therefore please your Majesty that it may be enacted; and be it enacted by the King's most Excellent Majes- ty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, Justices may and by the authority of the same, That it shall and may be lawful º: for any two or more of his Majesty's Justices of the Peace, assem- bies, &c. for bled at any Special or Petty Sessions of the Peace, upon complaint º: being made upon oath before them, of any neglect of duty, or for ill usage of of any disobedience of any lawful warrant or order of any Justice *P* or Justices of the Peace by any Constable, Overseer of the Poor, or other Peace or Parish Officer, or upon complaint made to such two or more Justices upon oath, by or on the behalf of any APPENDIX. 249 Apprentice to any trade or business whatsoever, whether bound Ap- prentice by any parish or township or otherwise, provided that not more than the sum of ten pounds be paid upon the binding of such Apprentice, against his or her Master or Mistress, of any ill usage of such Apprentice by such Master or Mistress, (such Con- stable, Overseer, or other Officer, Master or Mistress, having been duly summoned to appear and answer such charge or complaint), to impose upon conviction any reasonable Fine or Fines, not exceeding the sum of forty shillings, upon such Constable, Overseer, or other Officer, Master or Mistress respectively, as a punishment for such disobedience, neglect of duty, or ill usage, and by warrant under the hands and seals of any two or more of such Justices assembled, at any such Special or Petty Sessions as aforesaid, to direct such Fine or Fines, if not paid, to be levied by distress and sale of the goods and chattels of the person or persons so offending, rendering the overplus (if any), after deducting the amount of such Fine or Fines, and the charges of such distress and sale, to such offender or offenders; and such Fine or Fines, which may be imposed upon any Applicati * pplication of such Constable, Overseer, or other Officer as aforesaid, shall be ap-Fines. plied and disposed of for the relief of the poor of the parish, township, or place where the offenders shall respectively reside, at the discretion of the Justices imposing the same, and such Fine or Fines, which may be imposed upon any such Master or Mistress, shall, at the discretion of the Justices imposing the same, be either so applied and disposed of as aforesaid, or be otherwise paid and applied to or for the use and benefit of such Apprentice, for or to- wards a recompense or compensation for the injury which may . have been by him or her sustained by reason of such ill usage, as aforesaid; and if any person shall be aggrieved by the imposition of Persons ag- such Fine or Fines as aforesaid, or by any order or warrant of distress grieved may for raising and levying the same, or by the judgment or determination ...'..." of the said Justices, or by any act to be done in the execution of such signs. warrant of distress, such person or persons so aggrieved shall and may appeal to the next General or Quarter Sessions of the Peace to be held for the County, Riding, or Division, within which such person shall reside, of which appeal ten days' notice at the least shall be given ; and for want of such distress, such person or persons shall For want of be committed to the House of Correction for any space of time not jºr exceeding ten days. committed. II. Provided always, and be it further enacted, That no person No persons to tº * * º * be deemed tres- acting under any such warrant of distress as aforesaid shall be passers on ac- deemed a trespasser ab initio, by reason of any irregularity or in count of irre- 250 APPENDIX. gularity in pro- formality in such warrant, or in any proceedings thereon, but any ceedings, &c. º • * º **u - person aggrieved by the issuing or execution of such warrant may recover the special damages thereby by him or her sustained, in an action of trespass, or on the case, in any of his Majesty's Courts of Record. Where distress III. And whereas warrants of distress granted by Justices of ‘....." the Peace are, in many instances, ineffectual, by reason of the goods in the jurisdic- tion of Justices and chattels of the persons against whom such warrants are B."; ... granted being out of the jurisdiction of the Justice granting the rants, it may be te © levied in any same : Be it therefore further enacted, That in all cases where any * Place penalty, forfeiture, fine, or other money, may by the warrant of any Justice or Justices of the Peace be directed to be levied by dis- tress and sale of the goods and chattels of any person or persons, if sufficient distress cannot be found within the limits of the juris- diction of the Justice granting such warrant of distress, on oath thereof made by one witness, before any Justice of the Peace of any other County, Riding, Division, City, Borough, Town Corporate, or Place, (which oath shall be by him certified by indorsement on such warrant,) such Penalty, Forfeiture, Fine, or other money, or so much thereof as may not have been before levied or paid, shall and may, by virtue of such warrant and indorsement, be raised and levied by the person or persons to whom such warrant of distress shall have been originally directed, by distress and sale of the goods and chattels of such person or persons, in such other County, Rid- ing, Divison, City, Borough, Town Corporate, or place; and the money arising by such distress and sale shall be applied and dis- posed of for such purposes, and in like manner, as if sufficient goods and chattels of such person or persons had been found within the jurisdiction of the Magistrate originally granting such warrant; and if no such distress can be found, such offender or offenders shall and may be forthwith proceeded against according to law; provided Justices autho- always, That no Justice who shall indorse any certificate upon, or ...; ... authorize the execution of any such warrant of distress which rants not grant- may not have been granted within his jurisdiction, shall be answer- tº. * able or accountable for any irregularity which may have been com- jurisdictions, not to be an- mitted or done in or about the obtaining or granting of such war- º rant of distress. obtaining them. The premium was further increased to £25 Sterling by 4 Geo. IV. c. 29, dated 24d May 1824. Thestatute is as follows: Whereas by an act made in the twentieth year of the reign of 20 G. II. c. 19. His Majesty King George the Second, intituled An Act for the APPENDIX, 25 i .better adjusting and more easy Recovery of the Wages of certain Servants, and for the better Regulation of such Servants, and of certain Apprentices, it is, among other things, enacted and provid- ed, that it shall and may be lawful to and for any two or more Justices of the Peace, upon any complaint or application by any Apprentice put out by the parish, or any other Apprentice, upon whose binding out no larger a sum than five pounds of lawful British money was paid, touching or concerning any misusage, refusal of necessary provision, cruelty, or other ill treatment of or towards such Apprentice, by his or her Master or Mistress, to summon such Master or Mistress to appear before such Justices, at a reasonable time to be named in such summons; and such Justices shall and may examine into the matter of such complaint, and upon proof thereof made upon oath to their satisfaction, (whether the Master or Mistress be present or not, if service of the summons be also upon oath proved), the said Justices may discharge such Apprentice, by warrant or certificate under their hands and seals, for which warrant or certificate no fees shall be paid ; and it is also enacted, that it shall and may be lawful to and for such Justices, upon application or complaint made upon oath, by any Master or Mistress against any such Apprentice, touching or concerning any misdemeanour, miscarriage, or ill behaviour in such his or her ser- vice, (which oath such Justices are hereby empowered to adminis- ter), to hear, examine, and determine the same, and to punish the offender by commitment to the House of Correction, there to re- main and be corrected” and held to hard labour for a reasonable time not exceeding one calendar month, or otherwise by discharging such Apprentice in manner and form before mentioned : And whereas by another act made in the thirty-third year of the reign of his late Majesty King George the Third, intituled An Act to 33 G. III. c.55. authorize Justices of the Peace to impose Fines upon Constables, Overseers, and other Peace and Parish Officers, for Weglect of Duty, and on Masters of Apprentices for ill Usage of such their Ap- prentices, and also to make Provision for the Evecution of Warrants of Distress granted by Magistrates, it is enacted, that it shall and may be lawful for any two or more of His Majesty's Justices of the Peace, assembled at any special or petty sessions of the peace, upon complaint made to them upon oath, by or on the behalf of any Ap- prentice to any trade or business whatsoever, whether bound Ap- * Wide paragraphs 816 and 817. 252 APPEND IX, Reeited acts to extend to ap- prentices bound out at no larger acts, sum than £25. Justices may order premium to be refunded. In case of fail- ure to refund, to recover by distress and sale; and if no goods, to im- prison. prentice by any parish or township, or otherwise, (provided that not more than the sum of ten pounds be paid upon the binding of such Apprentices), against his or her Master or Mistress, of any ill usage of such Apprentice by such Master or Mistress, (such Master or Mistress having been duly summoned to appear and answer such charge or complaint) to impose, upon conviction, any reasonable fine or fines not exceeding the sum of forty shillings upon such Master or Mistress respectively, as a punishment for such ill usage; and by warrant under the hands and seals of any two or more of such Justices assembled at any such special or petty Sessions as aforesaid, to direct such fine or fines, if not paid, to be levied by distress and sale of the goods and chattels of the person or persons so offending, rendering the overplus (if any) after deducting the amount of such fine or fines, and the charges of such distress and sale, to such offen- der or offenders: And whereas it is expedient that the provisions of the said act should be extended to Apprentices upon whose bind- ing out a larger sum than five pounds or ten pounds respectively, as mentioned in the said acts, was paid : Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the first day of August One thousand eight hundred and twenty-three, the provisions of the said recited so far as the same relate to Apprentices, shall extend and be deemed and construed to extend to all Apprentices upon whose bind- ing out no larger a sum than Twenty-five Pounds of lawful British money was or shall be paid; any thing contained in the said acts, or either of them, to the contrary thereof in anywise notwithstand- ing. II. And be it further enacted, That from and after the first day of August One thousand eight hundred and twenty-three, it shall and may be lawful for any two or more of His Majesty's Justices of the Peace, in any case where they shall direct any Apprentice or Ap- prentices to be discharged under and by virtue of the said recited acts, or of this, act, to take into consideration the circumstances under which such Apprentice or Apprentices shall be so discharged, and to make an order upon the Master or Mistress of such Appren- tice or Apprentices to refund all or any part of the premium or pre- miums which may have been or shall be paid upon the binding or placing out of such Apprentice or Apprentices, as such Justices in their discretion shall see fit ; and in case any sum or sums of money APPENDIX. 253 which shall be so ordered to be refunded by such Master or Mistress, shall be neglected to be paid to the person or persons directed in any such order to receive the same, it shall and may be lawful for such two or more Justices, in petty sessions, by warrant under their hands and seals, to levy the same upon the goods and chattels of such Master or Mistress, with the costs and charges of levying such distress, rendering the overplus of the sale of such goods and chat- tels, upon demand, to such Master or Mistress; and in case there shall not be sufficient goods and chattels whereon to levy the same, then it shall and may be lawful for such Justices to commit such offender or offenders to the House of Correction, for any time not exceeding two months, unless the sum or sums ordered to be re- funded, with all costs, shall be sooner paid and satisfied. III. And be it further enacted, That the said recited acts and all Recited acts to and every the powers and provisions thereof (save and except such tº 8.S parts thereof as are varied, altered, or repealed), shall be as good, herein altered. valid, and effectual for carrying this act into execution as if the same had been repeated in this act. The provisions of these Acts confined the complaint to the Master or Mistress, who might often be absent; therefore it was necessary to extend the Acts, not only to his or her com- plaint, but to that of his or her steward, manager, or agent, so as to correct the misbehaviour of apprentices or workmen, and to punish for desertion. This extension was procured by the 4 Geo. IV. c. 34, dated 17th June 1823, as follows: Whereas an act was passed in the twentieth year of the reign of 20 G. I.I. c. 19. His Majesty King George the Second, intituled An Act for the bet- ter adjusting and more easy Recovery of the Wages of certain Ser- wants, and for the better Regulation of such Servants, and of certain Apprentices ; and another act was passed in the sixth year of the reign of his late Majesty King George the Third, intituled An Act 6 G. III. c. 25. for better regulating Apprentices, and Persons working under Con- tract 3 and also another act was passed in this present Session of Parliament, intituled An Act to increase the Power of Magistrates a G. Iv, c. 29. in cases of Apprenticeships ; and it is expedient to extend the powers of the said acts: Be it therefore enacted by the King's most ex. cellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That it shall and may 254 APPEN DIX, Masters or their be lawful, not only for any Master or Mistress, but also for his or :::::::: her steward, manager, or agent, to make complaint upon oath against plaint against any Apprentice, within the meaning of the said before recited acts, *P* to any Justice of the Peace of the county or place where such Ap- prentice shall be employed, of or for any misdemeanour, miscon- duct, or ill behaviour of any such Apprentice; or, if such Apprentice shall have absconded, it shall be lawful for any Justice of the Peace of the county or place where such Apprentice shall be found, or where such Apprentice shall have been employed, and any such Justice is hereby empowered, upon complaint thereof made upon oath,” by such master, mistress, steward, manager, or agent, which oath the said Justice is hereby empowered to administer, to issue his warrant for apprehending every such Apprentice;f and further, Justices may that it shall be lawful for any such Justice to hear and determine .* “ the said complaint, and to punish the offender by abating the whole House of Cor- or any part of his or her wages, or otherwise by commitmerit to the rection. House of Correction, there to remain and be held to hard labour, for a reasonable time not exceeding three months. Justices mayor. II. And be it further enacted, That all complaints, differences, sº and disputes which shall arise between Masters or Mistresses and prentices, pro- their Apprentices, within the meaning of the said before recited acts, i.º ... or any of them, touching or concerning any wages which may be not exceed £10. due to such Apprentices, shall and may be heard and determined by one or more Justice or Justices of the Peace of the county or place where such Apprentice or Apprentices shall be employed, which said Justice or Justices is and are hereby empowered to examine on oath any such Master or Mistress, Apprentice or Apprentices, or any wit- ness or witnesses, touching any such complaint, difference or dispute, and to summon such Master or Mistress to appear before such Justice or Justices at a reasonable time to be named in such Summons, and to make such order for payment of so much wages to such Apprentice or Apprentices, as according to the terms of his, her, or their inden- tures of apprenticeship shall appear to such Justice or Justices, under all the circumstances of the case, to be justly due, (provided that the sum in question do not exceed the sum of ten pounds,) the amount of such wages to be paid within such period as the said Justice or Justices shall think proper, and shall order the same to be paid; and in case of a refusal or non-payment thereof, such Jus- tice or Justices shall and may issue forth his and their warrant, to levy the same by distress and sale of the goods and chattels of such * Wide paragraph 31 I. † Wide paragraph 646. APPENDIX, 255 Master or Mistress, rendering the overplus to the owners, after payment of the charges of such distress and sale. III. And be it further enacted, That if any servant in husbandry, Justices may e * > e * º o iSSue warrants or any artificer, calico printer, handicraftsman, miner, collier, keel-to p. man, pitman, glassman, potter, labourer, or other person, shall con-servants in tract with any person or persons whomsoever, to serve him, her, or *&c. them, for any time or times whatsoever, or in any other manner, and shall not enter into, or commence his or her service, according to his or her contract, (such contract being in writing, and signed by the contracting parties,”) or, having entered into such service, shall absent himself or herself from his or her service before the term of his or her contract,f whether such contract shall be in writing or not in writing, shall be completed, or neglect to fulfil the same, or be guilty of any other misconduct or misdemeanour in the execution thereof, or otherwise respecting the same, then, and in every such case, it shall, and may be lawful for any Justice of the Peace of the county or place where such servant in husbandry, artificer, calico printer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, labourer, or other person, shall have so contracted, or be em- ployed, or be found, and such Justice is hereby authorized and em- powered, upon complaint thereof, made upon oath to him by the person or persons, or any of them, with whom such servant in hus- bandry, artificer, calico printer, handicraftsman, miner, collier, keel- man, pitman, glassman, potter, labourer, or other person, shall have so contracted, or by his, her, or their steward, manager, or agent, which oath such Justice is hereby empowered to administer, to issue his warrant for the apprehending every such servant in husbandry, artificer, calico printer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, labourer, or other person, and to examine into the nature of the complaint; and if it shall appear to such And may com- Justice that any such servant in husbandry, artificer, calico printer, º: tºº. to - ouse of handicraftsman, miner, collier, keelman, pitman, glassman, potter, Correction, &c. labourer, or other person, shall not have fulfilled such contract, or - hath been guilty of any other misconduct or misdemeanour as afore- said, it shall and may be lawful for such Justice to commit every such person to the House of Correction, there to remain and be held to hard labour for a reasonable time, not exceeding three months, and to abate a proportionable part of his or her wages, for and during such period as he or she shall be so confined in the IHouse * Wide Chap. IV, Written Contracts. f Wide paragraph 622. 256 A?PENDIX. of Correction,” or in lieu thereof, to punish the offender by abating the whole or any part of his or her wages, or to discharge such servant in husbandry, artificer, calico printer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, labourer, or other person from his or her contract, service, or employment, which discharge shall be given under the hand and seal of such Justice gratis. IV. And whereas it frequently happens, that such Masters, Mistresses, or employers reside at considerable distances from the parishes or places where their business is carried on, or are occa- sionally absent for long periods of time, either beyond the seas, or at considerable distances from such parishes or places, and during such residence or occasional absences, entrust their business to the management and superintendence of stewards, agents, bailiffs, fore- men, or managers, whereby such servants, artificers, handicrafts- men, miners, colliers, keelmen, pitmen, glassmen, potters, labourers, or other persons and apprentices, are or may be subjected to great difficulties and hardships, and put to great expense in recovering their wages; be it therefore enacted, That in either of the said cases, it shall and may be lawful to and for any Justice or Justices of the county or place where such servant in husbandry, artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, labourer, or other person or apprentice shall be employed, upon the complairit of any such servant, artificer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, labourer, or other person or apprentice, touching or concerning the non-payment of his or her wages, to summon such steward, agent, bailiff, foreman, or manager, to be and appear before him or them at a reasonable time to be named in such summons, and to hear and determine the matter of the complaint in such and the like manner as complaints of the like nature against any master, mistress, or employer are directed to be heard and determined in and by this and the before recited acts, and also to make an order for the payment by such steward, agent, bailiff, foreman, or manager, to such servant, artificer, handi- craftsman, miner, collier, keelman, pitman, glassman, potter, la- bourer, or other person or apprentice, of so much wages as to such How servants in husbandry, artificers, &c. shall recover their wages, in cases of absence of masters, &c. * Wide paragraphs 313. 661. 662. The words of the above section, “ and to abate a proportionable part of his or her wages” during period of confinement, seems more applicable to English contracts. In Scotland, where the servant deserts and is imprisoned in virtue of the statute, his aliment is furnished by the public ; but see 838, where an aliment of 4d. was awarded. APPENDIX. 257 Justice or Justices shall appear to be justly due ; provided that the sum in question do not exceed the sum of ten pounds; and in case of refusal or non-payment of any sum so ordered to be paid by such steward, agent, foreman, bailiff, or manager, for the space of twenty-one days from the date of such order, such Justice or Justices as aforesaid, shall and may issue forth his or their war- rant to levy the same by distress and sale of the goods and chattels of such master, mistress, or employer, rendering the overplus to the owner or owners, or to such steward, agent, bailiff, foreman, or manager, for the use of such master, mistress, or employer, after payment of the charges of such distress and sale. V. And be it further enacted, That every Justice or Justices of Justices may the Peace before whom any complaint shall be made, in pursuance. . dº º º e ment of wages of the said before recited act made in the twentieth year of the within such reign of his late Majesty, King George the Second, or of another º: as they y think fit; act made in the thirty-first year of the reign of his said late Ma- 20 G. I.I. c. 19. jesty, intituled An Act to Amend an Act made in the Third Year * * * * * of the Reign of King William and Queen Mary, intituled “An Act for the better Explanation and supplying the Defects of the former Laws for the Settlement of the Poor,” so far as the same relates to Ap- prentices gaining a Settlement by Indenture; and also to empower Justices of the Peace to determine Differences between Masters and Mistresses, and their Servants in Husbandry, touching their Wages, though such Servants are hired for less Time than a Year, shall and may order the amount of the wages that shall appear due to any servants in husbandry, artificers, labourers, or other person named in the said acts, or either of them, to be paid to the per- son entitled thereto, within such period as the said Justice or Justices shall think proper; and in case of refusal or non-pay- ment thereof, shall and may levy the same by distress and sale, in manner directed by the said first mentioned act; and every order or determination of such Justice or Justices made under this act shall be final and conclusive, any thing in either of the said acts contained to the contrary in anywise notwithstanding. VI. Provided always, and be it enacted, That nothing in this Act not to act contained shall extend to impeach or lessen the jurisdiction of..., the Chamberlain of the city of London, or of any other court with- of the Cham-. * º - © e berlain of in the said city, touching apprentices. London. The provisions of the 4 Geo. IV. c. 34. are extended to the trades enumerated in the 17 Geo III. c. 56. by the 10 Geo. IV. c. 52, dated 19th June 1829,-as follows: 8, R 258 APPENDIX, 4 Geo. IV. c. Whereas an act was passed in the Fourth Year of the Reign of *.*.* to His present Majesty, intituled An Act to enlarge the Power of all persons en- gaged in the Manufactures mentioned in Justices in determining complaints between Masters and Servants, and between Masters, Apprentices, Artificers, and others : And i; G.III. c. 56. whereas it is expedient to extend the operation of the said Act; be Servants named in the act 4 G. IV. c. 34. it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament assembled, and by the authority of the same, that all the provisions of the said Act shall be extend- ed to all persons engaged, whether as masters, servants, appren- tices, or otherwise, in the several manufactures, trades and occupa- tions mentioned in an Act passed in the seventeenth year of the reign of His late Majesty King George the Third, intituled An Act for amending and rendering more effectual the several Laws now in being for the more effectual preventing of frauds and abuses by per- sons employed in the Manufacture of Hats, and in the Woollen, Linen, Fustian, Cotton, Iron, Leather, Fur, Hemp, Flaw, Mohair, and Silk Manufactures, and also for making Provisions to prevent Frauds by Journeymen Dyers, in the same manner as if such per- sons had been specially mentioned therein. NotE.—In making a complaint against an individual following any of the trades enumerated in the above statute, the complaint must set forth, that the party complained of is a servant or master engaged in one or other of the trades enumerated in 17 Geo. III. c. 56, and, in virtue of the 10 Geo. IV. c. 52. that such party is sub- ject to the police regulation of 4 Geo. IV. c. 34.—See 642. Form of Application for Desertion, under 4 Geo. IV. c. 34. Perthshire, At Perth, the day of 1840, in that in Sº". part of Great Britain called Scotland. J. F. in the city of , by trade a potter, compeared before me, C. D. one of Her Majesty's Justices of the Peace in and for the county of Perth, and complained against A. B. his servant. He, the said J. F. deponed on oath before me, that A. B. contracted to serve him, the complainer, for one year from the day of 1840, as journeyman, at the rate of 14s, per week. That ak APPENDIX. 259 the said A. B. entered to his service, in virtue of the agreement, upon the said day of 1840, and continued therein till Monday the day of 1840, when he deserted from his service before the said contract was completed. That no cause was assigned to the complainer why he the said A. B. would not implement the said contract; and as he, the complainer, knew no cause why the said A. B. should not fulfil his contract, my warrant to have the said A. B. apprehended, in virtue of the act 4 Geo. IV. c. 34, he being a servant within the meaning and intent of said statute, was respectfully craved, in order that he might be dealt with according to law. (Signed) J. F. C. D. Form for Apprehension of Servants named in the Act 17 Geo. III. c. 17. The preceding form will go on until these words occur, “my warrant to have the said A. B. apprehended;” then add, “he being a servant named in the act 17 Geo. III. c. 17, which said servant by the Act 10 Geo. IV. c. 52, is declared to fall within the rules and regulations enacted by the 4 Geo. IV. c. 34, and in virtue of the latter statute he, the master, respectfully craved that the said A. B. be dealt with according to law.” - - Where the agent, steward, or manager complains, the com- plaint on oath should proceed thus:— J. B. manager for A. S. farmer in the county of Ayr, conform to written mandate, dated the day of 1840, com- peared before me, &c. - Warrant to Apprehend. Place and } To Constables of the county of .—Warrant is date, hereby granted to apprehend and bring before me, or before any other Justice of the Peace for the county of 2 the person of the before designed , to answer unto the said complaint on oath, that he may be dealt with according to law. (Signed) C. D., J. P. 260 APPENI) [X. On the party complained of being apprehended, he must be brought before the Justice who granted the warrant, or before any other Justice of the county. The first step of pro- cedure that follows is called the declaration, that is, the state- ment of the prisoner, which must be taken down in writing. It is somewhat in the following terms: (Place and date.) CoMPEARED J. F. the complainer (or G. H. writer in his agent ;) as also CoMPEARED A. B. complained on. The complaint being read over to him, he declares (here record his statement). If he admits desertion, then the Justice must decide in one of three ways. 1. By imprisoning for a period not exceeding three months, and to abate a proportionable part of his or her wages during the period of confinement. 2. By abating the whole or part of wages due by the master to the servant ; or, - 3. By discharging the servant from his contract. If the punishment awarded be imprisonment, the warrant will run thus, and be written on the complaint: (Place and date.) . Whereas the said A. B. complained of, hath not cleared himself of and from the said complaint by J. F., but, on the contrary, the said J. F. hath fully proved his complaint, Therefore grants warrant to imprison the person of the said A. B. in the House of Correction of , (if there be no House of Correction, then “in the Jail of ,”) there to remain and be held to hard labour for the period of months from the date hereof. (Signed) C. D. J. P. If abatement of wages be the punishment, then the warrant will be in the following terms: (Place and date.) Whereasthesaid A. B. complained of &c. &c. hath fully proved his complaint; and whereas the said J. F. hath declared that he holds in his possession, for the use of the said A. B. the sum of £5, 10s. APPENDIXe 261 of wages lawfully earned, which the said A. B. admits to be cor- rect, Therefore hereby ordains the said J. F. to retain and abate from said sum £5, 10s. in his hands, the sum of £3, 10s. in respect of the grounds of said complaint, and decerns. C. D., J. P. If the punishment be, to discharge the servant, then the warrant will run in this form : Whereas &c. &c. &c. hath fully proved his complaint, I do there- fore, by these presents, discharge the said A. B. from his engage- ment or contract to the said J. F., any thing in said contract be- twixt them or otherwise to the contrary notwithstanding. Given under my hand and seal at the day of 1840. - C. D., J. P. (Seal.) It will often happen that the servant, when brought before the Justice, will not admit desertion, but will aver dismissal. In such a case parties must prove their averments, and the Justice will then decide the case in the ordinary form. It is advisable, and indeed necessary, where there is the right of an appeal to either party, to have the whole procedure re- duced to writing. Read that part of the treatise which states the proceedings under the 4 Geo. IV. c. 34, pp. 164 to 173. Form of Complaint by a Servant, under 4 Geo. IV. c. 34, against his Master or Mistress, or against his or her Stewards, Agents, Bailiffs, Foremen, or Managers, for Payment of Wages not exceeding Ten Pounds Sterling. At Dunkeld, the day of 1840, county of Perth, in that part of Great Britain called Scotland. R. B., hatter in the city of Dunkeld, journeyman, compeared be- fore me, C. D., one of her Majesty's Justices of the Peace for the county of Perth, and complained against H. K., hatter, Dunkeld. He deponed before me on oath, that he, the said H. K., entered into a verbal contract of six months' endurance, from and after the day of 1840, with the said R. H., whereby the latter was to serve H. K. as a journeyman, and to be employed by him in the manufacture of hats, at the rate of 18s. per week. That, in virtue of said contract, the said R. B. entered into the said H. K.’s 262 APPENDIX, service, and was employed in terms of his engagement. That for five weeks preceding Saturday last, the day of , he, the said R. B., had not received payment of any part of his said stipu- lated weekly wages, which weekly wages so unpaid amounts to £4, 10s. Sterling; and he therefore craved my warrant to summon the said H. K. in terms of the said statute 4 Geo. IV. c. 34, that he might in virtue thereof recover payment. R. B. C. D., J. P. To Constables of the county of .—You are hereby requir– ed, in her Majesty's name and authority, to summon, warn, and charge the said H. K., designed in the within complaint, to com- pear before me, or any other Justice of the Peace for said county, to answer unto the foresaid sworn complaint, within the Office of the Clerk of the said Justices at , upon the day of next, at 12 o'clock noon, with certification that if he the said H. K. shall then fail to appear, he shall be held as confessed, and warrant will then be granted to recover payment of the wages demanded, in terms of section 4th of the act 4 Geo. IV. c. 34. Herein fail you not.—Given under my hand at , the day of 1840. C. D., J. P. The fourth section of the act 4 Geo. IV. c. 34, directs that after the Justice has granted warrant to recover payment, that twenty-one days' indulgence must be given, before poind- ing and sale. The Justice cannot grant warrant to imprison for non-payment of the wages, although exceeding £8,6s. 8d. —so decided in England. - The procedure of the Justice before granting any warrant, will be somewhat in the following terms: - (Place and date.) Compeared the said R. B., complainer; also H. K., party com- plained of. There was produced the said complaint, warrant there- on, and execution of the summons by , constable. The said complaint being read over by me, one of her Majesty's Justices of the county of Perth, to the said H. K., he admitted the facts there- in set forth, but stated as a reason for not paying said wages, that he was at present unable to do so. (Signed) R. B. H. K. — J. P. APPENDIX. 263 Warrant following on declaration — (Place and date.) In respect of the within complaint, and of the procedure and declaration following thereon, grants warrant to any of the constables of the county of , on the elapse of twenty-one days from the date hereof, to levy payment of the said sum of £4,10s. out of the goods and chattels of the said H. K., hat manufacturer, Dunkeld, and that by poinding and sale, for the use and behoof of the said R. B., his servant ; and ordains said consta- ble, out of the surplus, to deduct the charges of said poinding and sale, and thereafter to pay the balance, if any, to the Clerk of Court, to be by him delivered to the said H. K., and decerns. J. P. Form of Complaint by an Apprentice, under the 4 Geo. IV. c. 34, against a Master or Mistress. At Edinburgh, the day of 1840, in the County of Edinburgh, in that part of Great Britain called Scotland. “. The information and complaint of A. P. apprentice to G. H. of the city of Edinburgh, calico printer, who appeared before me, one of Her Majesty's Justices of the Peace for said county, and deponed on oath, that he is an out-door apprentice, and bound to the said G. H. for a period of six years from and after the day of 1838. That the said G. H. did (here state the facts of the case). That the said A. P. in respect of these facts, craved my warrant to summon the said G. H. to be dealt with according to law. A. P. — J. P. The warrant written on back of said complaint, will run thus: To Constables of the County of .* You are hereby required, in Her Majesty's name and authority, to summon the said G. H. to appear before me, or any other Justice of the Peace in the said county, on the day of 3. to answer unto the said information and complaint. And be you then there, to certify what you shall have done in the execution hereof. Herein fail ye not. Given under my hands the day of J840. — J. P. 264 APPENDIX. The procedure that follows will be somewhat similar to that of a complaint for desertion. Where a complaint is made by the master against the ap- prentice, or against workmen, for misconduct, the Justice's warrant will be one for apprehension. tº-sºmsºmºsºsmºs II. For the better regulation of Chimney Sweepers and their Apprentices, and to give protection to children of tender years who may be taken on trial previous to being indentured, it was found necessary to place them under statutory rules. By the 4th and 5th William IV. c. 35, dated 25th July 1834, it is by the second section enacted,— - No child under That from and after the passing of this Act no child who shall 10 years to be e - appenic.ii, not have attained the age of ten years shall be bound or put ap- *Chimney prentice to any person using the trade or business of a Chimney Sweeper. Sweeper per. 3. tak- III. And be it further enacted, That from and after the passing ing apprentices of this Act no Chimney Sweeper or other person who shall not be ºut- a housekeeper in the parish or other place in which such Chimney Sweeper or other person shall reside, and be rated to the relief of the poor of such parish, or assessed for payment of taxes in such other place, shall take or be deemed capable of taking an appren- tice to learn or to practise the business of a Chimney Sweeper, or of employing in such trade any child under the age of fourteen years. º: % IV. And be it further enacted, That all indentures, covenants, : º º ... promises, and bargains hereafter to be made or taken of or for the be void. hiring, taking, employing, retaining, or keeping of any child who shall be under the age of ten years, as or in the nature of an ap- prentice or servant in the capacity of a Chimney Sweeper, shall be absolutely void in law to all intents and purposes. - Indentures ex- V. Provided always, and be it further enacted, That nothing in ....this act contained shall extend, or be deemed, taken, or construed this act to re- to extend, to vacate or cancel any indenture of apprenticeship that *** shall have been actually in conformity with the said recited Act made and executed previous to the passing of this Act for binding any boy as an Apprentice to any person using the trade of a Chim- ney Sweeper, but that such indenture of Apprenticeship shall in all respects continue and be in as full force and effect as if this act had not been passed, APPENDIXs 265 VI. Provided always, and be it enacted, That every person using Apprentices the trade of a Chimney Sweeper having, or retaining, or employing . . ..". in his service any apprentice or apprentices who shall be under designated by a fourteen years of age, shall provide for each such apprentice, so long . *... 3. as he shall remain under the age of fourteen, a leathern cap, to be worn by such Apprentice when out upon his duty, having a brass plate set or affixed on the front thereof, with the name or names of the master or mistress engraved thereon, and also the name of the Apprentice and the date of his indenture of apprenticeship ; and every Master or Mistress neglecting to provide each such Appren- tice in his or her service, being under the age of fourteen, with such leathern cap and brass plate so affixed and engraved as aforesaid, shall for every such offence forfeit any sum not exceeding five pounds, nor less then forty shillings. VII. And be it further enacted, That from and after the passing Penalty on of this Act no person in the trade of a Chimney Sweeper shall hire, º for use, retain, or employ any child under the age of fourteen years, employing other than an apprentice bound according to the provisions of or º º: years of age, previous to the passing of this Act, and also other than such boy or not apprentices. Boys as shall be upon trial with any Master or Mistress Chimney Sweeper as herein-after provided ; and that every such person or persons so hiring, using, retaining, or employing any such child, other than an apprentice as aforesaid, or boy on trial as aforesaid, shall for every such offence forfeit any sum not exceeding ten pounds, nor less than forty shillings. - VIII. And be it further enacted, That any person or persons re- Requiring any quiring or compelling any apprentice or person of any description person to as- to ascend a chimney flue for the purpose of extinguishing fire tºº, therein, shall be held and adjudged to be guilty of a misdemeanor, a misdemeanor. and be liable to be proceeded against accordingly. - IX. And to the end that the age and time of the continuance Binding or as- of service of every apprentice bound pursuant to the provisions of . . ap- this act may certainly appear, be it further enacted, That every {..., binding of a child as an apprentice to any person using or carrying iº" on the trade of a Chimney Sweeper, and whether such binding shall p y consent of two be by a parish officer or by the parent or next friend of the child, Justices; and be º - e indorsed on the and also every assignment of such apprentice, shall take place by je. and with the consent of two of His Majesty's Justices of the Peace acting in and for any County, Stewartry, Riding, City, Town Cor- porate, Borough, Division, or place within the United Kingdom of Great Britain and Ireland, such consent and approbation to be sig- nified by such Justices in writing under their hands, indorsed on the indenture of apprenticeship or any assignment thereof, such in- 266 APPENDIX. denture and consent respectively to be according to the forms pre- scribed in the schedule hereunto annexed; and every indenture or assignment which shall not be in the form so prescribed, or shall not have such consent so indorsed thereon and signed as aforesaid, shall be absolutely null and void. Age of the Ap- X. And be it further enacted, That the age of every such child º ; º so to be bound apprentice shall be mentioned and inserted in such indenture. indenture, being taken truly from the copy of the entry in the Register Book wherein the time of his being baptized is or shall be entered (where the same can or may be had), which copy shall be given and attested by the Minister, Vicar, or Curate of the parish or place wherein such child's baptism shall be registered, without fee or reward, and may be written upon paper or parchment; and where no such copy of any entry of such child being baptized can be had, such Justices of the Peace shall as fully as they can inform themselves of his age, and from such information shall insert the same in the said indenture ; and the age of such child so inserted and mentioned in the said indenture (in relation to the continuance of his service) shall be taken to be his true age without any further proof thereof. Boys not to be XI. And be it further enacted, That no person exercising the let out to hire. trade or business of a Chimney Sweeper shall let out to hire by the day or otherwise, to any other person, for the purpose of Chim- ney Sweeping, any child already an apprentice, or that shall here- after be bound apprentice under the directions of this Act. Boys to have a XII. And whereas it is advisable that before any boy shall be º . bound by indenture to learn the business of a Chimney Sweeper, a being appren- previous trial of such business should take place on the part of the ticed. boy, under proper regulations; be it therefore further enacted, That before any boy shall be bound as an apprentice by indenture as herein provided, it shall be lawful for the intended master of such boy to have and receive such boy in such master's house upon trial for any time not exceeding two calendar months from the com- mencement of such trial, and during such period of trial to permit and suffer such boy to ascend Chimneys and to work in all respects as an apprentice in the said business of a Chimney Sweeper: Provided always, that before the commencement of such trial such boy, with his parent, next friend, or guardian, or parish officer, and such intended master, shall go before any two Justices of the Peace acting in and for the County, Stewartry, Riding, City, Town Corporate, Borough, Division, or place where such intended Master shall reside, and shall enter and register with the clerk to the said Justices the name and residence of the intended Master, and also APPENDHX. 267 the name, residence, and age of such boy, and the names and residences of the parties accompanying such boy, and also the in- tended period of trial, which shall be deemed to commence on the day after such entry and register, and shall not exceed the term of two calendar months from such day : Provided also, that such boy shall at the commencement of such trial be of the full age of ten years, to be ascertained as herein directed in other cases. XIII. And be it further enacted, That the Justices of the Peace Justices to ex- before whom any boy shall be brought for the purpose of being bound aminº Pº te * - e. . . who have been to a Chimney Sweeper, and which boy shall have been upon trial jatrial be. with the intended Master or Mistress, shall ascertain from such fore binding. boy whether he is willing and desirous to follow the business of a tºº." Chimney Sweeper, and to be bound to such Master or Mistress; and refuse their in case such boy shall be unwilling to be bound, such Justices shall sanction. and they are hereby required to refuse to sanction or approve of such binding. XIV. And be it further enacted, That no Master or Mistress Limitation of Chimney Sweeper shall have more than two boys at any one time Boys on ". on trial, as herein-before provided, nor more than four apprentices at one and the same time. XV. And be it further enacted, That from and after the passing streets not to of this Act it shall not be lawful for any Master or Mistress Chim-behawked or º te called by Chim- ney Sweeper, or for any journeyman, servant, or apprentice of any ney Sweepers. Chimney Sweeper, or for any person whomsoever acting as a Chim- ney Sweeper, to call or hawk the streets in any City, Town, or vil- lage, or elsewhere, for employment in his or her trade as a Chimney Sweeper; and if any person, Chimney Sweeper, journeyman, ser- vant, or apprentice, shall offend herein, he shall be subject and liable for every such offence to forfeit and pay a sum not exceeding” forty shillings. XVI. And be it further enacted, That if any such Master or Apprentices not Mistress shall misuse or evil-treat his or her apprentice, or if the º º: said apprentice shall have any just cause to complain of the for- º feiture or breach of any of the covenants, provisions, or agreements to be expressed and contained in the indenture, according to the form in the Schedule hereunto annexed, on the part and behalf of such Master or Mistress, then and in such case such Master or Mistress being convicted thereof, shall forfeit and pay for every such offence any sum not exceeding ten pounds nor less than forty Penalty. shillings. XVII. And be it further enacted, That it shall and may be law-º • preferred by ful for any two or more Justices of the Peace, and they are hereby apprentices or 268 APPENDIX. their employers authorized and empowered, to inquire into, and examine, hear and .*.*.*, determine, all complaints of hard or ill-usage exercised by the into by Justices. º - & g several and respective masters or mistresses towards their appren. tices, whether such complaints be preferred by any such apprentice or apprentices, or by any other person, and also all complaints of masters or mistresses against such apprentice or apprentices, and to make such orders therein respectively as any Justice or Justices is or are now enabled by law to do in other cases between masters and apprentices. - Materials and , XVIII. And whereas it is expedient that for the better security construction of e tº e {d C. from accidents by fire or otherwise an improved construction of flues particular- chimneys and flues should hereafter be adopted; be it therefore ly directed further enacted, That all withs and partitions between any chimney or flue which at any time after the passing of this act shall be built or rebuilt shall be of brick or stone, and at least equal to half a brick in thickness; and every breast, back, and with or partition of any chimney or flue, hereafter to be built or rebuilt, shall be built of sound materials, and the joints of the work well filled in with good mortar or cement, and rendered or stuccoed within ; and also that, every chimney or flue hereafter to be built or rebuilt in any wall, or of greater length than four feet out of any wall, not being a circular chimney or flue of twelve inches in diameter, shall be in every section of the same not less than fourteen inches by nine inches; R * and no chimney or flue shall be constructed with any angle there- egulations as . º to angles of in which shall be less obtuse than an angle of one hundred and flues. twenty degrees, and every salient or projecting angle in any chim- ney or flue shall be rounded off four inches at the least; upon pain of forfeiture, by every master builder or other master workman who shall make or cause to be made such chimney or flue, of the sum of one hundred pounds, to be recovered with full costs of suit, by any person who shall sue for the same in any of His Majesty's Courts of Record at Westminster : Provided nevertheless, and be Chimneys of a it enacted, That nothing in this clause conntained shall be construed tºº, to prevent chimneys or flues being built at angles with each other of be built at ninety degrees and more, such chimneys or flues having therein proper angles. doors or openings not less than six inches square. Convictions to XIX. And be it further enacted, That all convictions for penalties lººrs and forfeitures by this Act imposed for any offence against the same shall be made by any two or more Justices of the Peace, either by confession of the offender or upon the oath or affirmation of one or more credible witness or witnesses. XX. And be it further enacted, that all penalties and forfeitures APPENDIX. 269 e * . e * e Penalties how by this Act imposed for any offence, neglect, or default against the to be levied same, and the costs and charges attending the recovery thereof, and applied. shall be levied by distress and sale of the goods and chattels of the offender or person liable or ordered to pay the same respectively, by warrant under the hands and seals of two or more Justices of the Peace acting for the County, Stewartry, Riding, City, Town, Borough, Division, or place where the offence, neglect or default shall happen, rendering the overplus of such distress and sale (if any) to the party or parties, after deducting the charges of making the same, which warrant such Justices are hereby empowered and required to grant, upon conviction of the offender by confession or upon oath or affirmation of one or more credible witness or witnesses, or upon order made as aforesaid : and the penalties, forfeitures, costs, and charges, when so levied, shall be paid, the one half to the informer, and the other half to the Overseers of the Poor of the Parish, Township, or place where the Master or Mistress of such Apprentice or Servant shall dwell and inhabit, to be by such Overseers applied in aid of the rate raised for the relief of the Poor of such Parish, Township, or place, or, in case there shall be no such Overseer, to His Majesty. XXI. And be it further enacted, That the Justices of the Peace In default º by whom any person shall be convicted and adjudged to pay any i.t *ties sum of money for any offence against this Act, may adjudge that convicted to be such person shall pay the same, together with costs, either imme- sent to prison. diately or within such period as the said Justices shall think fit, and that in default of payment at the time appointed such person shall be imprisoned in the common gaol or house of correction (with hard labour), as to the said Justices shall seem meet, for any time not exceeding two calendar months where the amount of the sum forfeited or of the penalty imposed, together with the costs, shall not exceed five pounds, and for any term not exceeding three calendar months in any other case; the commitment to be deter- minable in each of the cases aforesaid upon payment of the amount and costs. XXII. And be it further enacted, That no inhabitant of any Inhabitants may Parish, Township, or place shall be deemed an incompetent witness be witnesses. in any suit, action, information, complaint, appeal, prosecution, or proceeding to be had, made, prosecuted, or carried on under the authority of this Act for any offence committed within such Parish or Township or place, by reason of such person being rated or assess. ed to, or liable to be rated or assessed to, or being otherwise inter- 270 APPENDIX, Distress not to be deemed un- lawful for want of form. Plaintiff not to recover for any irregularity, if tender of suffi- cient amends be made. Appeal. ested in, the rates or assessments of any such Parish, Township, or place. XXIII. And be it further enacted, That where any distress shall be made for any sum or sums of money to be levied by virtue of this Act, the distress itself shall not be deemed unlawful, nor the party or parties making the same be deemed a trespasser or tres- passers, on account of any default or want of form in any proceed- ings relating thereto, nor shall the party or parties distraining be deemed a trespasser or trespassers ab initio on account of any irre- gularity which shall be afterwards done by the party or parties dis- training, but the person or persons aggrieved by such irregularity may recover a full satisfaction for the special damage in an action on the case, to be brought in some of the Courts of Record at Westminster or Dublin, or by action raised or complaint preferred in any Court of Session in Scotland : Provided always, that no plaintiff or plaintiffs shall recover in any action for any such irre- gularity, trespass, or wrongful proceeding, if tender of sufficient amends shall be made by or on the behalf of the party or parties who shall have committed or caused to have been committed any such irregularity or wrongful proceedings, before such action or complaint brought ; and in case no such tender shall have been made, it shall and may be lawful for the defendant or defendants in any such action, by leave of the court where such action shall de- pend, at any time before issue joined, to pay into court such sum of money as he or they shall see fit, whereupon such proceedings or orders and judgments shall be had, made, and given in and by such court as in other actions where the defendant or defendants is or are allowed to pay money into court. - XXIV. And be il further enacled, That in all cases where the sum adjudged to be paid on any conviction shall exceed five pounds, or the imprisonment adjudged shall exceed one calendar month, any person who shall think himself or herself aggrieved by any such con- viction may appeal to the next Court of General or Quarter Sessions, which shall be holden not less than twelve days after the day of such conviction for the County, Riding, or Division wherein the cause of complaint shall have arisen: Provided that such person shall give to the complainant a notice in writing of such appeal, and of the cause and matter thereof, within three days after such conviction, and seven clear days at the least before such Sessions, and shall also either remain in custody until the Sessions, or enter into a recog- nizance, with two sufficient sureties, before a Justice of the Peace, conditioned personally to appear at the said Sessions, and to try such APPENDIX, 271 appeal, and to abide the judgment of the court thereupon, and to pay such costs as shall be by the court awarded; and upon such notice being given, and such recognizance being entered into, the Justice before whom the same shall be entered into shall liberate such person if in custody; and the court at such Sessions shall hear and determine the matter of the appeal, and shall make such order therein, with or without costs to either party, as to the court shall seem meet ; and in case of the dismissal of the appeal or the affirmance of the conviction shall order and adjudge the offender to be punished according to the conviction, and to pay such costs as shall be awarded, and shall, if necessary, issue process for enforcing such judgment. - XXV. And be it further enacted, That no conviction, or ad- No conviction judication made on appeal thereupon, shall be quashed for want of º form, or be removed by Certiorari or otherwise into any of His form, or re- Majesty's Superior Courts of Record; and no warrant of commit- º ment shall be held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and there be a good and valid conviction to sustain the same. XXVI. And be it further enacted, That this Act shall be and Term of Act. continue in force until the first day of January in the year one thou- sand eight hundred and forty, and from thence until the end of the the then next Session of Parliament. XXVII. And be it further enacted, That this Act may be altered, º.º.” - tered this Ses- amended, or repealed by any Act to be passed in the present Ses- ºut sº sion of Parliament. THE SCHEDULE TO WIHICH THIS ACT REFERS. Form of Indenture. This indenture, made the day of in the Year of the Reign of our Sovereign Lord by the grace of God, of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith, and in the year of our Lord between A. B. and C. D., Churchwardens and Overseers of the Poor of the Parish of in the County of [or E. F., the father or newt friend of the boy to be placed out, as the case may be, I of the one part, and L. M. of Number in Street, in the Parish of in the County of Chimney Sweeper, of the other part, witnesseth, that the said Churchwardens and Overseers of the Poor, [or the said E. F., as the case may be] by and with the consent and approbation of G. H. and I. K., two of His Majesty's Justices 272 APPENDIX. of the Peace acting in and for the County, Stewartry, Riding, City, Town, Borough, Division, or place, [as the case may be, signified as hereunder written - put and bound, and by these presents put and bind, N. O. of the said Parish, Town- ship, or place, being of the age of Years [as the case may be], to be Apprentice to the said L. M., he having now other Apprentice or Apprentices and no more [as the case may be], to learn the trade or business of a Chimney Sweeper, and with him [or her] to dwell, remain, and serve from the day of the date of these presents, for and during the term of years from hence next ensuing fully to be complete and ended, during all which time he the said N. O. as such Ap- prentice his said Master [or Mistress] faithfully shall serve and obey his [or her] secrets keep, and his [or her] lawful commands every- where gladly do and perform ; he shall not haunt alehouses or gaming houses, nor absent himself from the service of his said Master [or Mistress] day or night without his [or her] leave, but in all things as a faithful Apprentice shall behave himself towards his said Master [or Mistress] and all his [or her’s] during the said term : And the said L. M., in consideration of the good-will which he [or she] hath and beareth towards the said Apprentice, and of the faithful service so to be performed by him, doth hereby covenant, promise, and agree with the said Churchwardens and Overseers of the Poor [or the said E. F., as the case may be], that he [or she] the said W. O. his [or her] said Apprentice, in the trade or business of a Chimney Sweeper, which he [or she] now useth, shall and will teach and instruct, or cause to be taught and instructed, in the best manner that he [or she] can, and shall and will provide and allow unto the said Apprentice, during all the said term, competent and sufficient meat, drink, washing, lodging, apparel, and all other things necessary for the said Apprentice; and that the said L. M. executors, administrators, or assigns, shall not nor will assign over this present indenture, or the Apprentice bound thereby, without the consent and approbation in writing of two or more such Justices of the Peace, to be signified according to the form of the approbation hereunder written: And whereas, from the nature of the business or employment of a Chimney Sweeper, it is neces- sary for the boys employed in climbing to have a dress particularly suited to that purpose, which dress is only fit for that part of the occupation, the said L. M. doth hereby also covenant, promise, and agree to and with the said Churchwardens and Overseers of the Poor [or the said E. F., as the case may be, I to find and allow APPENDIX. 273 such suitable dress for the said Apprentice as often as need or occasion shall be and require, and provide for and deliver to the said Apprentice once in every year at least during the term afore- said, over and above the said dress proper for climbing, one whole and complete suit of clothing, with suitable linen, stockings, cap or hat, and shoes; and further, that the said L. M. shall and will at least once in every week cause the said Apprentice to be thoroughly washed and cleansed from soot and dirt ; and shall and will require the said Apprentice to attend the public worship of God on the Sabbath day, and permit and allow him to receive the benefit of any other religious or useful instruction; and that the said Apprentice shall not wear his sweeping dress on that day; and that the said L. M. shall not nor will compel or oblige or permit the said Apprentice to call the streets; and further, shall not nor will compel or oblige the said Apprentice to exercise his business between the hours of eight at night and four o’clock in the morning from the first day of November to the last day of March inclusive ; nor shall the said L. M. or any person or persons whomsoever by his [or her] directions, require or force him the said Apprentice to climb or go up any chimney which shall be actually on fire, nor make use of any violent or improper means to force him to climb or go up any chimney, but shall in all things treat his [or her] said Apprentice with care and humanity. Form of Approbation by Justices. We, G. H. and I. K., two of His Majesty's Justices of the Peace acting in and for the County, Stewartry, Riding, City, Town, Borough, Division, or place, [as the case may be, I having inspected and examined the within-named N. O. Lthe boy to be placed out or assigned over], and it having been proved to our satisfaction that he is of the age of ten years and upwards, do hereby consent to and approve of his being bound [or assigned over] as an Appren- tice to the within-named L. M. [the Master or Mistress], accord- ing to the terms and stipulations expressed in the within-written indenture. The preceding Act is altered by the 3 and 4 Vict. c. 85, dated 7th August 1840; but its provisions will not fully come into operation till the 1st of July 1842. The latter Act pro- ceeds thus: Whereas an Act was passed in the fifth year of the reign of His 4 and 5 W. IV. late Majesty, intituled An Act for the better Regulation of Chimney “. ** S 274 4 sº APPENDIX. Sweepers and their Apprentices, and for the safer Construction of Chimneys and Flues, to continue in force until the first day of January in the year One thousand eight hundred and forty, and from thence until the end of the then next Session of Parliament ; be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the Continuance of same, that the said Act shall continue and remain in full force until 4 and 5 W. W. the first day of July in the year One thousand eight hundred and . 35. c. 35 forty-two. Penalty for II. And be it enacted, That from and after the first day of July i..."; in the year One thousand eight hundred and forty-two, any person dren to climb who shall compel or knowingly allow any child or young person chimneys. under the age of twenty-one years to ascend or descend a chimney or enter a flue, for the purpose of sweeping, cleaning, or coring the same, or for extinguishing fire therein, shall be liable to a pen- alty not more than ten pounds or less than five pounds. Nº º, III. And be it enacted, That from and after the passing of this be jº Act it shall not be lawful to apprentice to any person using the to a Chimney trade or business of a Chimney Sweeper any child under the Sweeper. age of sixteen years, and that every indenture of such Appren- ticeship which may be entered into after such date shall be null and void. - Apprentices IV. And be it enacted, That upon the application of any child § to be apprenticed to any person using the trade or business of a Chimney Sweeper, at any time after the first day of July One thousand eight hundred and forty-one and previously to the first day of July One thousand eight hundred and forty-two, to any Justice of the Peace having jurisdiction where the Master or Mistress of such child shall reside, it shall be lawful for such Justice to summon such Master or Mistress to appear, at a reasonable time to be nam- ed in the summons, not being sooner than seven days from the time of granting the summons, before any two Justices having jurisdiction as aforesaid ; and upon proof made upon oath, to the satisfaction of the Justices by whom the case shall be heard, that such Apprentice is desirous of being discharged from his or her Apprenticeship, it shall be lawful for such Justices forthwith to discharge such Apprentice by warrant under their hands and seals, for which warrant no fees shall be paid; and no writ of Certiorari or other process shall issue to remove any proceedings under this enactment into any of Her Majesty's Superior Courts of APPEN DIX. 275 Record in England or Ireland, or into the Court of Session in Scotland. V. And be it enacted, That from and after the first day of July Indentures of One thousand eight hundred and forty-two, all existing indentures * * of Apprenticeship to the trade or business of a Chimney Sweeper cease after 1st of any child who shall then be under the age of sixteen years, shall July 1842. be null and void. VI. And whereas it is expedient, for the better security from Regulating accidents by fire or otherwise, the improved construction of chimneys . and flues provided by the said Act be continued ; be it enacted, that all withs and partitions between any chimney or flue which at any time after the passing of this Act shall be built or rebuilt shall be of brick or stone, and at least equal to half a brick in thickness; and every breast back and with or partition of any chimney or flue hereafter to be built or rebuilt shall be built of sound materials, and the joints of the work well filled in with good mortar or cement, and rendered or stuccoed within ; and also that every chimney or flue hereafter to be built or rebuilt in any wall, or of greater length than four feet out of the wall, not being a circular chimney or flue twelve inches in diameter, shall be in every section of the same not less than fourteen inches by nine inches; and no chimney or flue shall be constructed with any angle therein which shall be less obtuse than an angle of one hundred and twenty degrees, except as is herein-after excepted; and every salient or projecting angle in any chimney or flue shall be rounded off four inches at the least, upon pain of forfeiture, by every Master builder or other Master workman who shall make or cause to be made such chimney or flue, of any sum of not less than ten pounds, nor exceeding fifty pounds: Provided nevertheless, that notwith- standing this act chimneys or flues may be built at angles with each other of ninety degrees and more, such chimneys or flues having therein proper doors or openings not less than six inches Square. VII. And be it enacted, That all convictions for penalties for Before whom . any offence against this Act may be had before two or more Justices ºn. may of the Peace acting for the County, Riding, City, Borough, Division, * * or place where the offence shall happen, or before the Sheriff or Stewart of any County or Stewartry in Scotland; and such pen- Penalti º gº enalties how alties, and the costs, and charges attending the recovery thereof, to be levied and shall be levied by distress and sale of the goods and chattels of the applied. offender or person liable or ordered to pay the same respectively, by warrant under the hands and seals of two or more of the said 276 APPEN DIX. Justices, or under the liand of any such Sheriff or Stewart, render- ing the overplus of such distress and sale (if any) to the party or parties, after deducting the charge of making the same, which warrant such Justices or Sheriffs or Stewarts are hereby empower- ed and required to grant, upon conviction of the offender by con- fession, or oath of one or more credible witness or witnesses; and the penalties, costs, and charges, when so levied, shall be paid, the one half to the informer, and the other half to the Overseers or Managers of the Poor of the Parish, Township, or place where the offender shall dwell and inhabit, to be by such Overseers or Managers applied in aid of the rate or assessment raised for the Relief of the Poor of such Parish, Township, or place, and in Scot- land, in Parishes where there shall be no assessment for the relief of the poor, as the said Managers shall direct, or to Her Majesty in case there shall be no such Overseer or Manager. In default of VIII. And be it enacted, That the Justices of the Peace or º ‘. Sheriffs or Stewarts by whom any person shall be convicted and penalty the parties convict- adjudged to pay any sum of money for any offence against this Act .* may adjudge that such person shall pay the same, together with to prison. º # 6 ºf ºt e tº costs, either immediately or within such period as the said Justice shall think fit ; and that in default of payment at the time ap- pointed such person shall be imprisoned in the common gaol or house of correction (with or without hard labour), as to the said Justices or Sheriffs or Stewarts shall seem meet, for any time not exceeding two calendar months; the commitment to be de- terminable upon payment of the amount of the penalty and costs. Inhabitants not IX. And be it enacted, That no inhabitant of any Parish, Town- incompetent ship, or place shall be deemed an incompetent witness in any suit, witnesses by tº e tº e reason of pay- action, information, complaint, appeal, prosecution, or proceeding ing rates. to be had, made, prosecuted, or carried on under the authority of this Act, for any offence committed within such Parish, Township, or place, by reason of such person being rated or assessed to, or liable to be rated or assessed to, or being otherwise interested in, the rates or assessments of any such Parish, Township, or place. Distress not to X. And be it enacted, That where any distress shall be made º º ... for any sum or sums of money to be levied by virtue of this Act, the a W ful for Want of form. distress itself shall not be deemed unlawful, nor the party or parties making the same be deemed a trespasser or trespassers, on account of any default or want of form in any proceedings relating thereto, nor shall the party or parties distraining be deemed a trespasser or trespassers from the beginning on account of any irregularity which shall be afterwards done by the party or parties distraining, but APPENDIX. 277 the person or persons aggrieved by such irregularity may recover full satisfaction for the special damage in an action on the case, to be brought in some of the Courts of Record at Westminster or Publin, or by action raised or complaint preferred in the Court of Session in Scotland: Provided always, that no plaintiff or plaintiffs Tender of shall recover in any action for any such irregularity, trespass, or amends. wrongful proceeding if tender of sufficient amends for any such special damage shall be made by or on behalf of the party or parties who shall have committed or caused to have been committed any such irregularity or wrongful proceeding before such action or com- plaint brought ; and in case no such tender shall have been made, it shall be lawful for the defendant or defendants in any such action by leave of the court where such action shall depend, at any time before issue joined, to pay into court such sum of money as he or they shall see fit, whereupon such proceedings or orders and judg- ments shall be had, made, and given in and by such court as in other actions where the defendant is allowed to pay money into Court. XI. And be it enacted, That any person who shall think himself Appeal. or herself aggrieved by any conviction by any Justice or Justices of the Peace under this Act may appeal to the next Court of Gene- ral or Quarter Sessions of the Peace which shall be holden not less than twelve days after the day of such conviction for the County, Stewartry, Riding, City, Borough, Division, or place wherein the cause of complaint shall have arisen ; provided that such person shall give to the complainant a notice in writing of such appeal, and of the cause and matter thereof, within three days after such conviction, and seven clear days at the least before such Session, and shall also either remain in custody until the Session, or enter into a recognizance with two sufficient sureties, before a Justice of the Peace, conditioned personally to appear at the said Session of the Peace, and to try such appeal, and to abide the judgment of the Court thereupon, and to pay such costs as shall be by the Court awarded : and upon such notice being given and such recognizance being entered into, the Justice before whom the same shall be enter- ed into shall liberate such person, if in custody, and the Court at such Session shall hear and determine the matter of the appeal, and shall make such order therein, with or without costs, to either party as to the court shall seem meet, and in case of the dismissal of the appeal or affirmance of the conviction shall order and adjudge the offender to be punished according to the conviction, and to pay such costs as shall be awarded, and shall, if necessary, issue process 278 APPENDIX. Conviction not to be quashed for want of form Act may be amended this Session. 22 G. I.I. c. 27. Description of the manufac- tureS. for enforcing such judgment; and all judgments, determinations, and proceedings of such Justices not appealed from as aforesaid, and of such Sheriff or Stewart or Quarter Sessions, shall be final, and not subject to review by any process of law or court whatever, any law or usage to the contrary notwithstanding. XII. And be it enacted, That no conviction or adjudication made on appeal therefrom shall be quashed for want of form, or be removed by Certiorari or otherwise into any of Her Majesty's superior Courts of Record; and no warrant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and there be a good and valid conviction to sustain the same. XIII. And be it enacted, That this Act may be amended or re- pealed by any Act to be passed in this Session of Parliament. III. In consequence of the frauds and abuses committed by workmen employed in various manufactures, it was consider- ed necessary that these crimes should be punished summarily by two Justices of the Peace, and that the punishment should correspond with the offence committed. To attain so desirable an end, it was found necessary to repeal the punishments for the like offences, as contained in the 20 Geo. II. c. 27. and to pass the 17 Geo. III. c. 56,-which is as follows: Whereas by an Act made in the twenty-second year of the reign of His late Majesty King George the Second, (intituled An Act for the more effectual preventing of Frauds and Abuses committed by per- sons employed in the manufacture of Hats, and in the Woollen, Linen, Fustian, Cotton, Iron, Leather, Fur, Hemp, Flaw, Mohair, and Silk Manufactures; and for preventing unlawful combinations of Journeymen Dyers and Journeymen Hotpressers, and of all Persons employed in the said several Manufactures ; and for the better pay- ment of their Wages ;) it was enacted, that if any person or persons whatsoever, who should be hired or employed to make any felt or hat, or to prepare or work up any Woollen, Linen, Fustian, Cotton, Iron, Leather, Fur, Hemp, Flax, Mohair, or Silk Manufactures, or any Manufactures made up of Wool, Fur, Hemp, Flax, Cotton, Mohair, or Silk, or of any of the said materials mixed one with another, should from and after the twenty-fourth day of June One thousand seven hundred and forty-nine, purloin, embezzle, secrete, APPEN DIX. 279 sell, pawn, exchange, or otherwise unlawfully dispose of any of the materials with which he, she, or they should be respectively entrust- ed, whether the same or any part thereof be or be not first wrought, made up, manufactured, or converted into merchantable wares, and should be thereof lawfully convicted in manner therein mentioned, before any one or more Justice or Justices of the Peace of the County, Riding, Division, City, Liberty, Town, or place where such offence should be committed, or where the person or persons so charged should reside or inhabit, it should and might be lawful to and for the said Justice or Justices, by warrant under his or their hand and Seal or hands and seals, to commit the person or persons so convicted to the house of correction, or other public prison of such County, Riding, Division, City, Liberty, Town, or place, there to be kept to hard labour for the space of fourteen days, and also to order the person or persons so convicted to be once publicly whipped at the market-place, or some other public place of the City, Town, or place, where such offender or offenders should be respectively committed; and in case of a further conviction, in manner before prescribed by the said Act for or upon a second or other subsequent offence of the same kind, it should and might be lawful to and for the Justice or Justices before whom such conviction should be had, to commit the person or persons so again offending to the house of correction or other public prison as aforesaid, there to be kept to hard labour for any time not exceeding three months, nor less than one month, and also to order the person or persons so again offending to be publicly whipped at the maket-place, or some other public place of the City, Town, or place, where such offender or offenders should be respectively committed, twice or oftener, as to such Justice or Justices should appear reasonable: And whereas it is thought neces- sary to vary the punishment for the offences herein-before recited; be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the first day of July One So much of the thousand seven hundred and seventy-seven, so much of the said re- º * pre- cited Act as prescribes what the punishment shall be in any of the punishment to cases before-mentioned, or before whom such conviction shall be ... for had, whether for a first offence, or a second or any subsequent pawning, &c. offence, shall be repealed ; and instead of inflicting the punishment i. §.* so directed, the Justices of the Peace before whom the conviction ed; and other shall be, shall commit the person convicted to the house of correc- Pºts º © o - º substituted tion, or other public prison, there to be kept to hard labour, in the instead thereof. 280 APPENDIX. No person to be convicted unless before two Justices, &c. Recital of a clause in the aforesaid act. case of a first offence, for any time not less than fourteen days, nor more than three months; and in the case of a second or any subse- quent offence, for any time not less than three months, nor more than six months; and may likewise for the first, or for any subse- quent offence, order the person convicted to be once publicly whip- ped, if such additional punishment shall by the said Justice or Jus- tices be deemed proper. II. Provided always, and be it further enacted by the authority aforesaid, That no person or persons who shall be charged with any offence or offences against the said recited Act of the twenty-second year of the reign of His late Majesty King George the Second, shall be liable to be convicted, unless before two or more Justices of the Peace for the County, Riding, Division, City, Liberty, Town, or place, where the offence shall be committed; any thing contained in the said recited Act to the contrary hereof notwithstanding. III. And whereas, by the said act of the twenty-second year of the reign of His late Majesty King George the Second, it was also enacted, that if any person or persons should buy, receive, accept, or take, by way of gift, pawn, pledge, sale, or exchange, or in any other manner whatsoever, of or from any person or persons hired or employed to make any felt or hat, or to prepare or work up the woollen, linen, fustian, cotton, iron, leather, fur, hemp, flax, mohair, or silkmanufactures, or any manufactures made up of wool, fur, hemp, flax, cotton, mohair, or silk, or of any of the said materials mixed one with another, any thrumbs or ends of yarn, or any other mate- rials of wool, fur, hemp, flax, cotton, or iron, or any leather, mo– hair or silk, whether the same or any part thereof be or be not first wrought, made up, or manufactured, knowing the person or persons of whom he, she, or they so buy, receive, accept, or take the said materials to be so hired or employed as aforesaid, and not having first obtained the consent of the person or persons so hiring or em- ploying him, her, or them, who should offer to sell, pawn, pledge, exchange, or otherwise dispose of the said materials ; or should buy, receive, accept, or take, in any manner whatsoever, of or from any other person or persons whomsoever, any of the said materials, whether the same be or be not first wrought, made up, or manu- factured, knowing the same to be so purloined or embezzled ; then and in every such case, the person or persons so buying, receiving, accepting, or taking any such materials, being thereof lawfully con- victed, in manner before prescribed by the said act, for the convic- tion of persons purloining or embezzling the said materials, should, APPENDIX, 281 for the first offence, forfeit the sum of twenty pounds; and in case the said forfeiture should not be immediately paid, the Justice or Justices before whom such conviction should be had, should commit the party or parties so convicted to the House of Correction, or other public prison as aforesaid, there to be kept to hard labour for the space of fourteen days, unless the said forfeiture should be sooner paid; and if within two days before the expiration of the said fourteen days the said forfeiture should not be paid, the said Justice or Justices is and are hereby empowered and required to or- der the person or persons so convicted to be publicly whipped at the market-place, or some other public place of the city, town, or place, where such offender or offenders should be respectively com- mitted, once or oftener, as to such Justice or Justices should appear reasonable ; and in case of a further conviction for or upon a second or any other subsequent offence of the same kind, the person or per- sons so again offending, being thereof convicted in manner before prescribed by the said act, should for every second or other subse- quent offence, forfeit the sum of forty pounds; aud in case the said forfeiture should not be immediately paid, the Justice or Justices before whom such conviction should be had, should commit the party or parties so convicted to the House of Correction, or other public prison as aforesaid, there to be kept to hard labour for any time not exceeding three months, nor less than one month, unless the said forfeiture should be sooner paid ; and if within seven days before the expiration of the time for which such offender or offen- ders should be so committed, the said forfeiture should not be paid, the said Justice or Justices is and are hereby empowered and re- quired to order such offender or offenders to be publicly whipped at the market-place or some other public place of the city, town, or place, where he, she, or they should be respectively committed, twice or oftener, as to such Justice or Justices should appear reasonable: And the said respective forfeitures of twenty pounds and forty pounds when recovered, after satisfaction should have been made thereout to the party or parties injured, together with such costs of prosecution as should be judged reasonable by the Justice or Justices before whom such conviction should have been had, should be equally distributed amongst the poor of the parish or place where the person or persons so convicted should reside or inhabit : And whereas it is thought necessary to increase the pecuniary penalties directed by the said recited act for the said offences last mentioned, and to vary the application of the said penalties for the same, and 282 APPENDIX, further to change the consequences of non-payment; be it therefore So much of the further enacted, That from and after the said first day of July One said act as or- º j-thousand seven hundred and seventy-seven, so much of the said re- ment for buy- cited act of the twenty-second of his late Majesty King George the º º Second, as enacts what the penalty or punishment shall be for such goods in the buying, receiving, accepting, or taking by way of gift, pawn, pledge, last recited º - º e º jion- Sale or exchange, or in any other manner, as is described by the said ed, repealed; act, in the terms aforesaid, and how such penalty shall be applied, and what punishment shall be inflicted in case of non-payment, and other pun- shall be repealed; and instead thereof, the penalty for the first of. lº * fence shall be any sum not more than forty pounds nor less than uted instead T. thereof. twenty pounds, as the Justices before whom the conviction shall be shall judge to be most proper; and every such pecuniary penalty shall be applied, under the direction of the Justices before whom the conviction shall be, in manner following: (that is to say,) in the first place, the expences of the prosecution shall be thereout de- frayed; and then such satisfaction shall be made thereout to the party or parties injured, as the said Justices shall think proper; and afterwards so much of the said penalty shall be paid to the in- former or informers as such Justices shall think fit, not exceeding in any case ten pounds, and the remainder, if any, shall be paid and distributed to and amongst the poor of the parish, town, or place where the conviction shall be, or for the use of such public charity or charities as such Justices shall appoint : And if such pecuniary penalty as aforesaid shall not be paid on conviction, the said Justices shall commit the person convicted to the House of Correction or other public prison, there to be kept to hard labour for any time not more than six months nor less than three months, as the said Jus- tices shall think fit to direct, unless such pecuniary penalty shall be sooner paid ; or the said Justices may send the person convicted to the House of Correction or other public prison, there to remain for three days exclusive of the day of commitment, with an order that within the said time the person so convicted shall be once publicly whipped at such market-place or other public place as aforesaid. & IV. And be it further enacted by the authority aforesaid, That º from and after the said first day of July One thousand seven hun- offenders are dred and seventy-seven, if any person or persons shall be brought º before any Justices of the Peace, and shall be charged upon oath, second offence, or (being of the people called Quakers) upon solemn affirmation, of having been guilty of buying, receiving, accepting, or taking, by way of gift, pawn, pledge, sale, or exchange, or in any other man- ner, as is described by the said recited act in the terms aforesaid, APPENDIX. 283 and it shall appear to such Justices that the person or persons so charged hath or have been already convicted of the like offence for which he, she, or they is or are then charged, that then such Justices shall not proceed to convict such person or persons, but shall commit him, her, or them to the House of Correction, or some other public prison, there to remain until the next General or Gene- ral Quarter Sessions of the Peace to be held in and for the county, riding, division, city, liberty, town, or place where the offence shall have been committed, or until such offender or offenders shall have entered into a recognizance to answer for such offence at the said next General or General Quarter Sessions; and the Justices in such General or General Quarter Sessions are hereby authorized and requir– ed to take cognizance thereof, and to hear and determine the same ; and if such person shall be convicted upon the oath, or (being of the people called Quakers,) upon the affirmation of one or more credible Any such offen- witness or witnesses, the person so convicted shall forfeit and pay ºted for such offence, any sum not more than one hundred pounds, nor Quarter Ses- less than fifty pounds, as the said Justices shall judge to be most ; ..". º: proper; and every such penalty shall be applied and disposed of to £100. under the direction of the said Justices in their General or General Quarter Sessions, in such manner or proportions as the penalty herein before imposed for the first offence of the like nature is by - this act directed to be applied and disposed of; and if such penalty or be commit- shall not be paid on conviction, the said Justices shall commit the ted, &c. person so convicted to the House of Correction or other public pri- son, there to be kept to hard labour for any time not more than six months nor less than three months, as the said Justices shall in their discretion think fit, unless such penalty shall be sooner paid; or the said Justices may send the person convicted to the House of Correction or other public prison, there to remain for three days, exclusive of the day of commitment, with an order that within the said time such person shall be once publicly whipped at such mar- ket-place or other public place as aforesaid. P Ili ersons selling, V. And whereas many frauds are practised in respect to such pawning, &c. materials as aforesaid, by persons who sell them knowing them to *...* have been purloined or embezzled ; be it therefore further enacted, said, knowing That after the said first day of July One thousand seven hundred º .." and seventy-seven, if any persons shall sell, pawn, pledge, ex-Wied, shalibe change, or otherwise unlawfully dispose of, or offer to sell, pawn, º: *. pledge, exchange, or otherwise unlawfully dispose of any such ment . for materials as aforesaid, whether wrought or unwrought, mixed or receiving em- º º º bezzled mate- unmixed, knowing them to have been purloined or embezzled, rials. 284 APPENDIX. every such person lawfully convicted shall be liable to the same punishment as he or she would be liable to by virtue of this act, on being convicted of receiving purloined or embezzled materials, knowing them to have been purloined or embezzled. How Justices VI. And whereas such materials as aforesaid, which have been !. ... purloined or embezzled, are frequently received by persons knowing per- º sons charged on the same to have been so purloined or embezzled, and such materials : lºng being afterwards worked up or otherwise disposed of, renders it dif- having embez- ficult to convict such offenders; be it therefore enacted by the ... authority aforesaid, That from and after the said first day of July ing received. One thousand seven hundred aud seventy-seven, when any person i. i. lºw- or persons shall be brought or charged upon oath, before any two j or more Justices of the Peace by virtue of this act, with being sus- embezzled, &c. pected of or with having purloined or embezzled, or with having re- ceived any such materials as aforesaid, whether the same be wrought or unwrought, mixed or unmixed, knowing the same to have been either purloined or embezzled, or received from some person or per- sons not entitled to dispose thereof, and it shall be made appear up- on the oath, or (being of the people called Quakers,) upon the affir- mation of one or more credible witness or witnesses, to the satisfac- tion of such Justices, that such person or persons hath or have pur- loined or embezzled, or hath or have received any such materials as aforesaid, knowing the same to have been purloined or embezzled, or received from some person or persons not entitled to dispose there- of, it shall and may be lawful for such Justices, or for the Justices at their General or General Quarter Sessions of the Peace, and they are hereby respectively authorized and empowered (if they shall think fit,) to convict such person or persons of having purloined or embezzled, or of having received such materials as aforesaid, know- ing the same to have been purloined or embezzled, or received from some person or persons not entitled to dispose thereof, although no proof shall be given to whom such materials belong; and the person or persons so convicted shall for every such offence be subject to such and the like penalties and punishments, at the discretion of such Justices respectively, as persons convicted of buying or receiving any such materials as aforesaid, knowing the same to have been purloined or embezzled, are by this act subject and liable to. Another clause VII. And whereas, by the said recited act of the twenty-second of the act 22, of King George the Second, it was also enacted, that if any person G. I. recited, or persons intrusted with any of the materials therein and herein- before mentioned, in order to prepare, work up, or manufac- ture the same, should not use all such materials in the preparing, APPEN IDF &, 285 working up, or manufacturing of the same, and should neglect or delay, for the space of twenty-one days after such materials shall be prepared, worked up, or manufactured, to return (if required by the owner or owners of such materials so to do) so much of the said materials as should not be used as aforesaid, to the person or per- sons intrusting him, her, or them therewith, such neglect or delay should be deemed a purloining or embezzling of such materials; and the person or persons so neglecting or delaying, being thereof con- victed in manner therein-before prescribed for the conviction of of fenders against the said act, should suffer the like punishment as persons convicted of purloining or embezzling any of the materials therein-before mentioned, are by the said act rendered subject and liable to : And whereas the space of twenty-one days allowed by the said recited act is thought too long a time to be allowed for returning the said materials under the circumstances and in manner afore- said; and it may be proper to make the punishment for not return- ing such materials the same as for purloining or embezzling under this act : be it therefore further enacted, That from and after the and altered. said first day of July One thousand seven hundred and seventy- seven, so much of the said recited act as allows twenty-one days after the preparing, working up, or manufacturing the said materials, for returning so much of the said materials as shall not be used in such preparing, working up, or manufacturing, and declares that the punishment for not so returning the said materials within the said time, shall be the same as under the said act is directed for purloining or embezzling, shall be repealed; and only eight days shall be allowed for returning the said materials in manner afore- said; and the punishment for not returning them within the said eight days shall be the same as is by this act directed to be inflict- ed for purloining or embezzling. VIII. And whereas by the said act of the twenty-second year Another clause of the reign of His late Majesty King George the Second, it is en- º act acted, that from and after the said twenty-fourth day of June One thousand seven hundred and forty-nine, if any person who should be hired, retained, or employed to prepare or work up any of the manufactures therein-before mentioned for any one master, should neglect or refuse the performance thereof, by procuring or permitting himself or herself to be subsequently retained or employed by any other master or person whatsoever, before he or she should have completed the work which he or she was first and originally so hired, retained, or employed to perform, and which was first de- livered to him or her; then, and in every such case the person so 286 APPENDIX, offending, being thereof lawfully convicted by the oath, or (being of the people called Quakers,) affirmation of one or more credible witness or witnesses, before one or more Justice or Justices of the Peace of the county, riding, division city, liberty, town, or place where the offence or offences should be committed, should be sent to the House of Correction, there to be kept to hard labour for any time not exceeding one month : And whereas the said provision con- tained in the said recited clause is not found sufficient for the purpose intended, and it is apprehended that some other provision more pro- and repealed per may be made; be it therefore further enacted, That from and after the said first day of July One thousand seven hundred and seventy-seven, the whole of the said last recited clause shall be re- Any person be-pealed; and that from and after the said first day of July One º thousand seven hundred and seventy-seven, if any person being materials, who hired, retained, or employed to prepare or work up any materials, º "whether mixed or unmixed, for any master or masters, shall wil- same for eight fully neglect or refuse the performance thereof for eight days suc- *::::. º cessively; or having taking in any materials, whether mixed or un- House of Cor- mixed, for manufacture, from one master or two or more masters rection. being co-partners, shall afterwards take in any materials, whether mixed or unmixed, for manufacture, from any other master or mas- ters; or shall procure or permit himself or herself to be employed or retained in any other occupation or employment whatsoever, sooner than eight days before the completion of the work first taken; then in every such case such person, being thereof lawfully convict- ed by the oath, or (being of the people called Quakers,) affirma- tion, of one or more credible witness or witnesses, before two or more Justices of the Peace of the county, riding, division, city, liberty, town, or place where the offence or offences shall be committed, shall be sent to the House of Correction or other public prison, there to be ff - kept to hard labour for any time not exceeding three months nor any person shall receive any less than one month. - *...* IX. And whereas it frequently happens that persons receive the jus said materials in fictitious names, in order to be manufactured ; and ..., º, that persons receive such materials in their own names, in order to ... ..." be manufactured by themselves, and afterwards deliver the same person without to others to be manufactured, without the knowledge or consent of the consent of g §: ... the owners thereof; and that carriers or other persons employed to he shall belia deliver materials to workmen to be prepared or manufactured, do ble to the same tº dº {e ºn: as designedly deliver such materials to other persons than those in- persons.neglect- tended by the owner of such materials; be it therefore further en- ..". acted by the authority aforesaid, That from and after the said first APPENDIX, 287 day of July One thousand seven hundred and seventy-seven, if any person shall receive any of the aforesaid materials in a fictitious name in order to be manufactured, or if any person shall receive in his or her own name any of the said materials, in order to be ma- nufactured by himself or herself, and afterwards deliver the same or any part thereof to any other person to be manufactured (without the consent of the owner thereof); or if any carrier or other person employed to deliver any such materials to any workman, to be pre- pared or wrought up, shall designedly deliver the same to any other person than the person to whom such materials were ordered or in- tended to be delivered by the owner thereof; all and every person and persons offending in any of the cases aforesaid, shall for every such offence be liable to prosecution in the same manner, and to the same punishment, as is by this act directed in respect to persons taking in any of the said materials in order to work up, and after- wards wilfully neglecting or refusing the performance of their work for the space of time aforesaid. X. And whereas it frequently happens that materials used in the manufactures before mentioned are found, or known to be concealed, in the possession of persons who have received the same, knowing them to be purloined or embezzled, or of persons known not to be entitled to dispose of the same : And whereas the discovery and con- viction of the purloiners and embezzlers, buyers and receivers of such materials, is full of difficulty, from the close and clandestine man- ner in which the offence is committed; and there is still greater difficulty in proving whose property such materials are; and it would tend to the discouragement and suppression of such offences, if the discovery and conviction of such offenders were rendered more easy : And whereas, by the said recited Act of the twenty- second year of His late Majesty King George the Second, Justices of the Peace, after conviction of any offender for purloining or em- bezzling the said materials, or for buying or receiving the same, are authorized to grant warrants for searching the houses and other places of the persons so convicted, but no such authority is given . . before conviction, nor in any other house or place, except such as .. II1sº belongs to a person convicted; be it therefore further enacted, That plaint on oath, it shall and may be lawful for any two Justices of the Peace of any *...* County, Riding, Division, City, Liberty, Town, or place, upon suspected to be complaint made to them, upon oath, by any one credible person, ..". or (being of the people called Quakers) upon solemn affirmation, may grant a that there is cause to suspect that any such purloined or embezzled Wºº.” Q g * searching the materials, whether mixed or unmixed, wrought or unwrought, are same. 288 APPENDIX. concealed in any dwelling-house, out-house, yard, garden, or other place or places, by virtue of a warrant under their hands and seals, to cause every such dwelling-house, out-house, yard, garden, or place, to be searched in the day-time; and if any such materials, How persons suspected to be purloined or embezzled, shall be found therein, to * cause the same, and the person or persons in whose house, out- possession such house, yard, garden, or other place, the same shall be found, to be *. *" brought before any two Justices of the Peace for the same County, Riding, Division, City, Liberty, Town, or place; and if the said person or persons shall not give an account to the satisfaction of such Justices, how he, she, or they came by the same, then the said person or persons so offending shall be deemed and adjudged guilty of a misdemeanor, and shall be punished in manner herein-after mentioned, although no proof shall be given to whom such materials belong. • , Peace officers XI. And be it further enacted, That every Peace Officer, Con- ...'. º: stable, Headborough, or Tithingman, in every county, city, town apprehend all corporate, or other place, where there shall be officers, and every ºº:: beadle within his ward, parish, or district, and every watchman, carrying, after during such time only as he is on his duty, shall and may appre- tºº. hend, or cause to be apprehended, all and every person or persons pected to be who may reasonably be suspected of having or carrying, or any ways P* * conveying, at any time after sun-setting and before sun-rising any of such materials, suspected to be purloined or embezzled, and the same, together with such person or persons, as soon as conveniently may be, convey or carry before any two Justices of the Peace for the county, riding, division, city, liberty, town or place within which the suspected person or persons shall be apprehended ; and if the person or persons so apprehended in conveying any such mate- rials, shall not produce the party or parties duly entitled to dispose thereof, from whom he, she, or they bought or received the same, or some other credible witness, to testify upon oath, or (being of the people called Quakers), upon solemn affirmation, to the sale or de- livery of the said materials (which oath or affirmation respectively such Justices are hereby empowered to administer), or shall not give an account, to the satisfaction of such Justices, how he, she, or they came by the same, then the said person or persons so apprehended shall be deemed and adjudged guilty of a misdemeanor, and be punished in manner herein-after mentioned, although no proof shall be given to whom such materials belong. '..." XII. Provided always, and be it further enacted, that in either the request of © persons brought of the two cases last before mentioned, when any person or persons, APPENDIX. 289 who shall be brought before any two Justices of the Peace, shall before them, request of such Justices to appoint a reasonable time to produce theº.º., person or persons duly entitled to sell or dispose of the same, of or produce the from whom he, she, or they bought or received the same, or some º one or more credible witness or witnesses to prove the sale or delivery the materials, thereof, then and in such case it shall and may be lawful for the said &c. Justices, and they are hereby authorized and required to appoint, such reasonable time as aforesaid, and to issue out a summons to the con- stable or other peace-officer of the parish or place where such person or persons, or such witness or witnesses shall respectively reside, re- quiring him, her, or them to appear before two or more Justices, at such time and place as shall be so appointed by such Justices, in order to be examined and give evidence on oath, or (being of the people called Quakers) solemn affirmation, of the several matters aforesaid; but such person or persons, at the time of making such on the persons request, shall enter into a recognizance, with or without surety or making *. tº e º º , request entering sureties, as such Justices shall think proper, for his, her, or their intº a recogniz: appearance before them at the time so to be set, or for want of such ance, &c. recognizance as aforesaid, shall be committed until the time that shall be set or appointed by the said Justices for the appearance of such party or parties, witness or witnesses; and if at such appointed time such person or persons shall be convicted of any of the offences aforesaid, them and in such case, he, she, or they shall suffer such punishment as is herein-before directed to be inflicted on persous guilty of such offences. XIII. And be it further enacted, That where any person or per- On any person sons shall be convicted of a misdemeanor in either of the two cases º,º - last before mentioned, it shall and may be lawful for the Justices nor as aforesaid, before whom the conviction shall be, to cause the said materials so.” found or seized as aforesaid, to be deposited in the hands of the deposited in the churchwardens or overseers of the poor of the place where such ma-º.º.º. - © ſº o churchwardens, terials shall be found or seized, or in any other convenient place, for &c. any time not exceeding thirty days; and in the meantime to order the said churchwardens and overseers of the poor, or one of them, to insert an advertisement in some one or more of the public newspa- pers usually published or circulated in or near such place, or other- wise to cause notice to be given by some public crier, and by fixing on the church or chapel door notice describing such materials, and where the same are so deposited, to the end that persons having lost such materials, or any reputable person or persons in their be- half, may come and claim the same ; and in case any person or per- If any person e º •+-- tº º can prove his sons can prove his, her, or their property in the said materials upon property in the T 290, APPENDIX. said materials, oath, or (being of the people called Quakers) upon his, her, or their they shall be e * ºrº, º ºn. ſº ſº tº ...iim solemn affirmation, to the satisfaction of any two Justices of the on paying the Peace for such county, riding, division, city, liberty, town, or place, ...'. then such Justices shall order restitution of such materials to the owner or owners thereof, after paying the reasonable charges of re- but if no person moving, depositing, and giving public notice of the same ; but if Pºº. before the end of the said thirty days no person or persons shall perty in them, e they shall be come and prove his, her, or their property in such materials, nor sold, &c. any reputable person or persons on his, her, or their behalf, then the said Justices shall order and direct the same to be sold for the best price that can reasonably be had, and after deducting such charges as aforesaid, together with the charges of sale, one moiety of the money arising from such sale shall be given to the person or persons, or either of them, who shall apprehend or prosecute the offender or offenders guilty of either of the misdemeanors aforesaid, as the said Justices shall appoint ; and the other moiety thereof either to and amongst the poor of the parish, town, or place, where the conviction shall be, or to such public charity or charities as the Justices con- victing shall appoint. penalty on per XIV. And be it further enacted, That every person deemed and sons having in adjudged guilty of a misdemeanor, in having in his or her possession their possession s e ** * .." any materials suspected to be purloined or embezzled, and not pro- pected to be ducing the party or parties being duly entitled to dispose of the purloined, &c. sº te <--> same, of whom he or she bought or received the same, nor giving a satisfactory account how he or she came by the same ; or of a mis- demeanor in having, carrying, or conveying of the said materials sus- pected to be purloined or embezzled, and not producing the party or parties being duly entitled to dispose of the same, of whom he or she bought or received the same, nor any credible witness to testify upon oath, or (being of the people called Quakers) upon solemn affirmation, the sale or delivery thereof, nor giving a satisfactory account how he or she came by the same, (as the case shall be), shall for every such misdemeanor forfeit, for the first offence, the sum of twenty pounds, and for the second offence the sum of thirty pounds, and for every subsequent offence the sum of forty pounds; Forfeitures may all which said respective forfeitures shall and may be levied by dis- º levied by tress and sale of the goods and chattels of every such offender (ren- istress. tº & e º dering to him or her the overplus, after charges of the said distress and sale deducted) by warrant under the hands and seals of the Jus- tices before whom such offender shall be deemed and adjudged guilt- ty; of which forfeiture, one moiety shall be paid to the informer, and the other moiety thereof to and amongst the poor of the parish, APPEND IX. * 29 | town, or place where such conviction shall be, or to such public cha- rity or charities as the Justices convicting shall appoint; and if no on failure of sufficient distress shall be found whereon to levy the said respec- jº. tive forfeitures, then the said Justices shall and may commit every mitted. such offender, so respectively deemed and adjudged guilty as afore- said, to the common gaol, or other prison or house of correction within his or their jurisdiction, without bail or mainprize, for the space of one month for the first offence, and for the second offence for the space of two months, and for every subsequent offence for the space of six months. XV. And whereas it sometimes happens, by occasion of the very Owners of ma- long detention of such materials as aforesaid, delivered out to º journeymen or other persons employed to work up the same, it can- &c. to be work- not be known to the master or owners of such materials, whether i. º the same may have been purloined or embezzled, or whether the hours, enter said materials are wholly or in part wrought or begun to be wrought, . ". or in what state or condition such materials may be : For remedy inspect their whereof, be it further enacted, That from and after the said first" day of July One thousand seven hundred and seventy-seven, it shall be lawful for the owner or owners of any such materials from time to time as occasion shall require, to demand entrance, and enter at all seasonable hours in the day-time, into the shops or out- houses of any person or persons employed by him or them to work up any of the said materials, or other place or places where the work shall be carried on, and there to inspect the state and condi- tion of such materials; and in case of refusal by any such person or Penalty on persons so employed to permit such entrance or inspection, he, she, º: &c. or they so refusing shall forfeit and pay such sum of money, not ex- ceeding forty shillings nor less than ten shillings, as the Justices be- fore whom he, she, or they shall be convicted shall think proper, to be recovered and applied in the same manner as is by this Act directed for the misdemeanor of being in the possession of any such materials, without being able to account satisfactorily for such possession. XVI. And whereas the said recited act of the twenty-second All penalties year of the reign of His late Majesty King George the Second, con- º º ń. in tains no provision for the protection and recovery of the tools and this Act, rela; implements with which any person or persons employed in prepar- ... º ing, working up, or manufacturing such materials as aforesaid, shall be applicable e e - º to the tools, be entrusted for that purpose; nor any provision in respect to the drugs &c. with which and ingredients used in dying, preparing, or manufacturing such any person is e • * entrusted for of the said materials as are usually dyed, prepared, or manufactur- manufacturing ed; be it therefore enacted, That from and after the said first day the same. 292 *. APPENIX IX. of July One thousand seven hundred and seventy-seven, every pe- malty or punishment directed by, or other provision contained in the said recited act in respect to the said materials, so far as the said re- cited act is not varied by this act; and all the provisions in this act contained in respect to the said materials, shall extend and be ap- plicable to any tool or tools, and implementor implements, with which any person or persons shall be entrusted for making, working up, or manufacturing the said materials, and also to any drug or drugs, ingredient or ingredients, with which any person or persons shall be entrusted for the purpose of dying, preparing, or manufacturing such of the aforesaid materials as are usually dyed, prepared or manufac- tured, in the same manner as if the said tools and implements, drugs and ingredients, were particularly mentioned both in the said recit- ed act and in the preceding provisions of this act. If any journey- XVII. And whereas journeymen dyers, servants, and appren- º: tices, frequently abuse the trust reposed in them, by dying goods º º of for their own profit without the consent of their masters; be it dye º ” therefore enacted, That from and after the said first day of Jnly One woollen, thousand seven hundred and seventy-seven, if any person hired, re- linen, &c. tained, or employed as a journeyman dyer, or as a servant or ap- prentice, in the dying of any felt or hat, or any woollen, linen, fustian, cotton, leather, fur, flax, mohair, or silk materials, whether the same shall be wrought or unwrought, or shall be mixed or unmixed with other of the said materials, shall without the con- sent of the master, person or persons by whom such journeyman, servant, or apprentice shall be hired, retained, or employed, will- fully dye any of the said materials, whether wrought or unwrought, or mixed or unmixed with other of the said materials, or without such consent, shall wilfully receive any such materials as aforesaid, for the purpose of dying the same, whether the same shall be dyed he shall forfeit or prepared for dying, he or she so guilty of either of the said ..". offences shall, for the first offence, forfeit the sum of ten shillings; ...” and for the second offence, the sum of twenty shillings; and for every subsequent offence, the sum of forty shillings; or if any per- * º son shall procure any such materials as aforesaid to be dyed by any any such person so hired, retained, or employed as a journeyman, servant, materials to be or apprentice, without the consent of his or her master or employ- so dyed, er, or shall offer any such materials to any such journeyman, ser- vant, or apprentice, for the purpose aforesaid, he or she so offend- ing, being thereof lawfully convicted by the oath, or (being of the people called Quakers) affirmation, of one or more credible witness or witnesses, before two or more Justices of the Peace for the county, APPEND IX. 293 riding, division, city, liberty, town, or place, where the offence & shall be committed, shall, for the first offence, forfeit the sum of five }. º shillings; and for the second offence, the sum of twenty shillings; offence, 5s. &c. and for every subsequent offence, the sum of four pounds; and each of the said penalties shall be paid to the informer or informers; and in case of non-payment on conviction, the person so convicted shall be committed by the Justices before whom the conviction shall be, to the common gaol or house of correction, to remain for any time not exceeding one month, as such Justices shall order and direct. XVIII. Provided always, and be it further enacted, That any Inhabitants of inhabitant of any parish, township, or place in which any offence jº, shall be committed contrary to the Act of the twelfth year of the of the aforesaid reign of His late Majesty King George the First, or contrary to the i. Act of the twenty-second year of His late Majesty King George to be deemed the Second, or contrary to this Act, shall be deemed a competent .." witness, notwithstanding his or her being an inhabitant of such parish, township, or place. XIX. And be it further enacted by the authority aforesaid, That Justice of it shall and may be lawful to and for any one Justice of the Peace º of any county, riding, division, city, liberty, town, or place, made upon oath and he is hereby required, upon complaint to him made upon oath, *.*.*.* o against this or (if the person complaining be of the people called Quakers) Act, may issue solemn affirmation, of any offence committed against this Act with- º *. for in the same county, riding, division, city, liberty, town or place, º .# to issue his warrant for apprehending and bringing before any two or more Justices of the Peace of the same county, riding, division, city, liberty, town, or place, the person or persons charged with such offence ; and the Justices before whom such person or persons shall be brought are hereby authorized and required to hear and de- termine the matter of such complaint, and to proceed to judgment and conviction thereupon. XX. And whereas the said Act of the twenty-second year of the reign of His late Majesty King George the Second, only gives an appeal from an order of any Justice or Justices of the Peace to the General or General Quarter Sessions of the Peace, where an order is made by any Justice or Justices of the Peace, in the case of the buyer or receiver of such purloined or embezzled materials as aforesaid, and in respect to the sale or disposal of such materials found on searching by warrant after any conviction for purloining or embezzling, or for receiving or buying such purloined or embez- zled materials: And whereas it is thought more proper to give a 294 APPEND IX, right of appealing in the case of other orders of any Justice or Justices of the Peace, to be made by force of an Act made in the twelfth year of the reign of His late Majesty King George the First, (intituled An Act to prevent unlawful Combinations of Workmen employed in the Woollen Manufactures, and for better Payment of their Wages,) and of the said Act, and also in the case of all orders to be made by any Justices of the Peace under this Act; be it there- fore further enacted, That if any person shall think himself or her- * jue self aggrieved by the order or judgment of any two Justices before order of any two whom he or she shall have been convicted of any of the offences in *** **, the said Acts of the twelfth year of the reign of King George the may appeal to * e º the Quarter First, and the twenty-second year of the reign of King George the Sessions; Second, or in this Act, such person may appeal, and the said Jus- tices are hereby required to make known to such person, at the time of such conviction, his or her right to appeal to the next General or General Quarter Sessions of the Peace to be holden for the county, riding, division, city, liberty, town, or place, where such giving notice to conviction shall been have made, (such person at the time of such con- º, jº. viction giving to such Justices notice in writing of his or her intention tion to appeal to appeal, and also entering into a recognizance at the time of such i. ...; notice, with sufficient sureties, conditioned to try such appeal, and Zance, . to abide the judgment of, and pay such costs as shall be awarded by, the Justices at such Sessions); but if the person giving such notice of appeal shall not, at the time of giving such notice, enter into such recognizance as aforesaid, then the Justices to whom such notice of appeal shall have been given, shall and may commit such person or persons to the house of correction or other public prison of such county, riding, division, city, liberty, town, or place, there to remain until the said next General or General Quarter Sessions of the Peace to be holden in and for such place, unless such recogniz- ance shall be sooner entered into ; and the said Justices before whom such conviction shall have been made, or any other two or more Justices of the same county, riding, division, city, liberty, town, or place, are hereby empowered and required to take, and the Justices at such Sessions are hereby authorized and required, upon due proof made of such notice of appeal, either by the acknowledg- ment of the Justices to whom the same shall have been given, or otherwise, to hear and determine the matter of the said appeal, and to award such costs as to them shall appear just and reasonable, to How the delin-be paid by either party; and if, upon the hearing of such appeal, .*.* the judgment of the Justices before whom the appellant shall have punished in * tº a • & case the Ses- been convicted shall be affirmed, such appellant shall, within forty- APPENDIX, 295 eight hours next after the same shall be so affirmed suffer such cor- sions confirm poral punishment as shall have been directed to be inflicted upon” him or her for the offence whereof he or she shall have been con- victed, or shall immediately pay the sum which he or she shall have been adjudged to forfeit, together with such costs as the Justices in the said Sessions shall award to be paid by him or her, for defraying the expenses sustained by the defendant or defendants in such ap- peal; or in default of making such payments shall be committed to the common gaol or house of correction, in the same manner, and for the same time, to be computed from the affirmance of such con- viction, as shall be directed by the original judgment of conviction, unless the person or persons so convicted shall have been imprisoned under the original conviction, in which case the time for which such person or persons shall have been so confined shall be included in the order of confirmation. XXI. And whereas an act passed in the twenty-third year of Part of 23 G. the reign of His late Majesty King George the Second, (intituled *º, Të- An Act for the more effectually punishing of Persons convicted of se- ducing Artificers in the Manufactures of Great Britain or Ireland, out of the Dominions of the Crown of Great Britain ; and to prevent the Exportation of Utensils made use of in the Woollen and Silk Manu- factures, from Great Britain or Ireland into foreign parts; and for the more easy and speedy Determination of Appeals, allowed in cer- tain cases by an Act made in the last Session of Parliament, relating to persons employed in the several Manufactures therein mentioned), prescribes a form for conviction of the several offences mentioned in the said recited act of the twenty-second of George the Second ; but such form is not adapted to the said last mentioned act as altered by this act; and it may be useful to have one general form for the said recited act of the twenty-second of George the Second, and this act; be it therefore further enacted, That in respect to all offences which, from and after the said first day of July One thousand seven hundred and seventy-seven, shall be committed against the said recited act of the twenty-second of George the Second, so much of the said act of the twenty-third of George the Second as prescribes a form of conviction for offences against the said act of the twenty- second of George the Second, shall be repealed; and that from and How Justices to after the said first day of July One thousand seven hundred and Proceed for - conviction of seventy-seven, the Justices before whom any offender shall be con- offenders victed of any offence, either against the said act of the twenty- against the said • * º º . Act of 22 G. II. second of George the Second, or varied by this act, or against this this A. act, shall cause the conviction to be certified to the next General w 296 APPENDIX. or General Quarter Sessions of the Peace to be held in and for the county, riding, division, city, liberty, town or place where such conviction was made, to be filled with the records of such Sessions; and such conviction shall and may be drawn up and written on parchment, and certified in the following Form of words, as far as the name of the person and the nature of the case will admit of ; (that is to say,) Fºn of con- “Middlesex [or any * it remembered, That on the viction. Place, as the case shall º be] to wit. day of in the year of our Lord A. B. was convicted before us of His Majesty's Justices of the Peace in and for the said County of or for the Riding of the said County of - or for the City, Liberty, Town, or place aforesaid, in the said County [as the case shall be] of [Here specify the offence, and when and where the same was committed.] Given under our hands and seals the day and year first above written.” a. º XXII. Provided always, and be it further enacted, That no or. quashed for der made touching or concerning any of the matters in this act con- *:::: †, tained, or any proceedings to be had touching the conviction of any Certiorari. offender or offenders against the said act of the twenty-second of George the Second, or this act, shall be quashed for want of form, or be removed or removable by Certiorari, into His Majesty's Court of King's Bench ; and the Justices before whom such conviction shall be had, shall cause the same, drawn up in the form aforesaid, to be fairly written upon parchment, and transmitted to the next General or General Quarter Sessions of the Peace to be held for the county, riding, division, city, liberty, town, or place, wherein such conviction was had, to be filed and kept amongst the records of the said General or General Quarter Sessions; and in case the per- son or persons so convicted shall appeal from the judgment of the said Justices to the said General or General Quarter Sessions, the Justices on such General or General Quarter Sessions are hereby required, upon receiving the said conviction drawn up in the form aforesaid, to proceed to the hearing and determination of the matter of the said appeal, according to the direction of the said Act, any law or usage to the contrary notwithstanding. This Act not to XXIII. Provided also, and be it further enacted, That nothing ſº herein contained shall extend, or be construed to extend, to repeal as is herein par- any former law or laws now in being, for the punishment of any of **.* the offences herein above specified, except so far as is particularly pressed ; º expressed by this act ; and no offender who shall have been pro- APPENDIX. - 297 ceeded against upon or by virtue of this Act, for any of the offences herein specified, shall for the same offence be afterwards proceeded against upon or by virtue of any such former law or laws. XXIV. Provided also, and be it further enacted, That nothing not to extend g ſº & to any offence contained in this Act shall extend to or affect any person or persons committed for anyoffence committed or to be committed against the said recited º act of the twenty-second year of the reign of His late Majesty King ... jul, i. George the Second, before the said first day of July One thousand 1777. seven hundred and seventy-seven ; but all and every such offender and offenders shall and may be prosecuted and punished in the same manner as if this Act had not been made. XXV. And be it further enacted, That if any suit or action shall Limitation of be commenced or prosecuted against any person or persons, for any actions. thing done or to be done in pursuance of this Act, every such suit or action shall be severally brought, laid, and tried in the county or place where the fact was committed, aud not elsewhere ; and the defendant or defendants in every such action or suit shall and may plead the general issue, and give this Act and the special matter in evidence at any trial to be had thereupon, and that the same was done in pursuance of and by the authority of this Act ; and if it shall appear to be so done, or if any such suit or action shall be brought in any other county or place than where the fact was com- mitted, then the Jury shall find for the defendant or defendants; and upon such verdict, or if the plaintiff or plaintiffs shall become non-suit, or discontinue his, her, or their action after the defendant or defendants shall have appeared, or if, upon demurrer, judgment shall be given against the plaintiff or plaintiffs, the defendant or defendants shall and may recover treble costs, and have the like Treble costs. remedy for the same as any defendant or defendants hath or have for costs in other cases at law. General Issue. tººtºmºsºs IV. The Statutes in force regulating the arbitration of dis- putes respecting work and materials for work between Mas- ters and their workmen, are the 5 Geo. IV. c. 96, and 1 Vict. c. 67. 5 GEo. IV. c. 96, dated 21st July 1824. Whereas it is expedient that the laws relative to the arbitration of disputes between masters and workmen should be consolidated and amended, and one general law made applicable to every description 298 APPENDIX. of trade and manufacture ; be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Par- liament assembled, and by the authority of the same, That from and after the passing of this act, so much of a certain act passed in the Parliament of Ireland, in the third year of King George the 3 G. II. (I.) in Second, intituled An Act to prevent unlawful Combinations of Work- par. 39 and 40 G. III. c. 90. 39 and 40 G. III. c. 106. 4 l G. III. c. 38. 43 G. III. c. 15. 44 G. III. c. 87. 53 G. III. c. 75, repealed. men, Artificers, and Labourers employed in the several Trades and Manufactures of this Kingdom, and for the better Payment of their Wages ; as also to prevent abuses in making of Bricks, and to ascer- tain their Dimensions, as relates to the decision of disputes as there- in mentioned; also a certain other act passed in the thirty-ninth and fortieth years of King George the Third, intituled An Act for settling Disputes that may arise between Masters and Workmen engaged in the Cotton Manufacture in that Part of Great Britain called England ; also a certain other act passed in the thirty-ninth and fortieth years of King George the Third, intituled An Act to arepeal an Act passed in the last Session of Parliament, intituled “An Act to prevent unlawful Combinations of Workmen,” and to substi- tute other Provisions iu lieu thereof; also a certain other Act passed in the forty-first year of King George the Third, intituled An Act to amend so much of an Act passed in the thirty-ninth and fortieth Years of the Reign of his present Majesty, intituled “An Act to repeal an Act passed in the last Session of Parliament, intituled “An Act to prevent unlawful Combinations of Workmen,” and to sub- stitute other Provisions in lieu thereof,” as relates to the Forms of Convictions therein referred to ; also a certain other Act passed in the forty-third year of King George the Third, intituled An Act for preventing and settling Disputes which may arise between Masters and Weavers engaged in the Cotton Manufacture in Scotland, and Persons employed by such Weavers, and Persons engaged in orna- menting Cotton Goods by the Needle ; also a certain other act pass- ed in the forty-fourth year of King George the Third, intituled An Act to amend an Act passed in the thirty-ninth and fortieth years of His present Majesty, intituled “An Act for settling Disputes that may arise between Masters and Workmen engaged in the Cotton Manufacture in that part of Great Britain called England ;’ and also a certain other act passed in the fifty-third year of King George the Third, intituled An Act for the better Regulation of the Cotton Th'ade in Ireland, shall be and the same are hereby repealed; save and except in as far as the same may have repealed any prior acts or enactments. APPEND IX. 299 II. And be it further enacted, That the following subjects of dis- Enumeration e G of the causes of pute arising between masters and workmen, or between workmen dispute that and those employed by them, in any trade or manufacture in any may be refer- part of the United Kingdom of Great Britain and Ireland, may be red. settled and adjusted in manner hereafter mentioned; that is to say, Disagreements respecting the price to be paid for work done, or in the course of being done, whether such disputes shall happen or arise between them respecting the payment of wages as agreed upon, or the hours of work as agreed upon, or any injury or dam- age done or alleged to have been done to the work, or respec- ting any delay or supposed delay in finishing the work, or the not finishing the work in a good and workmanlike manner, or according to any contract, or to bad materials; cases where the workmen are to be employed to work any new pattern which shall require them to purchase any new implements of manufac- ture, or to make any alteration upon the old implements for the working thereof, and the masters and workmen cannot agree upon the compensation to be made to such workmen for or in respect thereof, disputes respecting the length, breadth, or quality of pieces of goods, or, in the case of cotton manufacture, the yarn thereof, or the quantity and quality of the wool thereof; disputes respecting the wages or compensation to be paid for pieces of goods that are made of any great or extraordinary length ; disputes in the cotton manufacture respecting the manufacture of cravats, shawls, policat, romal, and other handkerchiefs, and the number to be contained in one piece of such handkerchiefs; disputes arising out of, for, or touching the particular trade or manufacture, or contracts relative thereto, which cannot be otherwise mutually adjusted and settled ; disputes between masters and persons engaged in sizing or orna- menting goods; but nothing in this act contained shall authorize any Justice or Justices acting as hereinafter mentioned to establish a rate of wages or price of labour or workmanship at which the workmen shall in future be paid, unless with the mutual consent of both master and workman : Provided always, that all complaints Limitation of by any workman as to bad materials shall be made within three º .* weeks of his receiving the same ; and all complaints arising from their com- any other cause shall be made within six days after such cause of plaints. complaint shall arise.* - III. And be it further enacted, That whenever such subjects of Appointment dispute shall arise as aforesaid, it shall be lawful for the master and ** workman, or either of them, to demand and have an arbitration or * The period is altered to fourteen days by 1 Vict, c. 67. 300 APPEND IX. reference thereof in manner following; that is to say, Where the party complaining and the party complained of shall come before or agree by any writing under their hands to abide by the deter- mination of any Justice of the Peace or Magistrate of any county, riding, division, stewartry, barony, city, burgh, town, or place, within which the parties reside, it shall and may be lawful for such Justice of the Peace or Magistrate to hear and finally determine, in a summary manner, the matter in dispute between such parties;” but if such parties shall not come before or so agree to abide by the détermination of such Justice of the Peace or Magistrate, then it shall be lawful for any such Justice or Magistrate, and such Justice of the Peace or Magistrate is hereby required, on complaint made before him and proof by the examination of the party making such complaint, that application has been made to the person or persons against whom such cause of complaint has arisen, or his, her, or their agent or agents, if such dispute has arisen with such agent or agents, to settle such dispute, and that the same has not been settled upon such complaint being made, or where the dispute relates to a bad warp, that such cause of complaint has not been done away with within forty-eight hours after such application, to sum- mon before him such persons or persons, or agent or agents on some day not exceeding three days, exclusive of Sunday, after the making such complaint, giving notice to the person making such complaint of the time and place appointed in such summons for the attendance of such person or persons, agent or agents as aforesaid ; and if at such time and place the person or persons so summoned shall not appear by himself, herself, or themselves, or send some person on his, her, or their behalf, to settle such dispute, or appearing, shall not do away such cause of complaint, then and in such case it shall be lawful for such Justice, and he is hereby required, at the request of either of such parties, to nominate arbitrators or referees for set- tling the matters in dispute; and such Justice shall then and there at such meeting propose not less than four nor more than six per- sons, one-half of whom shall be master manufacturers, or agents, or foremen of some master manufacturer, and the other half of whom shall be workmen in such manufacture; such respective persons residing in or near to the place where such disputes shall have arisen; out of which master manufacturers, agents, or foremen, the master engaged in such dispute, or his agent, shall choose one, and out of which workmen so proposed, the workman or his * This part of the Act is altered and extended to Justices having jurisdiction where the party complained against resides, I Vict. c. 67. APPENDIX. 30 i agent shall choose another, who shall have full power to hear and finally determine such dispute. IV. And be it further enacted, That in case any or either of * the persons so proposed by any such Justice shall refuse or delay to ferees where accept such arbitration, or accepting shall not act therein, within º two days after such nomination, the Justice shall proceed to name to accept the another or other persons of the descriptions aforesaid, in the room . i. of the person so refusing as aforesaid to be arbitrator or arbitrators Hºn. in the place of any such arbitrator or arbitrators so refusing or de- laying to accept, or who shall not act ; and in every case of a se- cond nomination the arbitrators shall meet within twenty-four hours after the application for the same, and at the same place at which the meeting of the referees first named was appointed, orat some other convenient place as the Justice may appoint ; and the expense of every such application for the appointment of a second referee shall be borne and defrayed by the party through whose default, or the default of whose referee, such application is rendered necessary; and the Justice making such second appointment shall certify the same in the form for that purpose hereafter set forth, or in some other form to the like effect; and in every case where a second arbitrator shall be appointed as aforesaid, and such second arbitra- tor shall not attend at the same time and place appointed for settling the matters in dispute, it shall be lawful for the other arbi- trator; at such time or place, to proceed by himself to the hearing and determining of the same matters in dispute; and in such case the award of such sole arbitrator shall be final and conclusive as to all matters in dispute submitted to such arbitrator, withont being subject to review, appeal, or suspension. V. And be it further enacted, That the arbitrators or referees Meeting of re- being so nominated as aforesaid, the said Justice shall thereupon ºf appoint a place of meeting according to the directions of this act, given. and also a day for the meeting, notice of which nomination, and of the day of the meeting, shall thereupon be given by such Justice to the persons so nominated arbitrators or referees, and to any par- ty to any such dispute, who may not have attended the meeting before such Justice as aforesaid; which appointment shall be by such Justice certified in the form following, or in some other form to the like effect ; that is to say, “I, A. B., one of the Justices of the Peace acting for Form of Jus- , do hereby certify, That C. D. and E. F. are duly tice's order, cer- tº te tº º tifying nomina- nominated referees to settle the matters in difference between G, ... . 302 APPENDIX. Place for the meeting of re- ferees. Attendance of parties. H. of master manufacturer, [or agent or fore- man, as the case may be, and I. K. of weaver, [or otherwise, as the case may be, I pursuant to an act passed in the fifth year of the reign of his present Majesty; and that the said re- ferees are hereby directed to meet at OIl the day of at of the clock in the forenoon, [or afternoon, as the case may be.] A. B.” “I, A. B., one of the Justices of the Peace acting for , do hereby certify, That the above named C. D. and E. F. [or one of them, as the case may be, I having refused or delay- ed to act in the above-mentioned reference, L. M. and W. O. Lor L. M. only, as the case may be, are [or is] by me duly nominated referees [or referee, together with the above-named C. D. [or E. F.] to settle the matters in difference between the above-named G. H. and I. K. ; and the said C. D. or E. F. together with the said L. M. [or the said L. M. or W. O. as the case may be, are directed to meet at the place above-mentioned, on the day of in the year of our Lord at of the clock in the forenoon [or afternoon, as the case may be.] . A. B.” And the persons so appointed as aforesaid shall hear and examine the parties and their witnesses, and determine such dispute within two days after such nomination, exclusive of Sundays; and the determination of such arbitrators shall be final and conclusive. VI. And be it further enacted, That in all cases where complaints are made respecting bad warps or utensils by workmen, the place of meeting of the referees shall be at or as near as may be to the place where the work shall be carrying on ; and in all other cases at or as near as may be to the place or places where the work has been given out. - VII. Provided also, and be it further enacted, That if any person so complaining as aforesaid shall not attend, or send some person on his or her behalf, at the time and place appointed by such Jus- tice of the Peace, for the purpose of naming such persons as afore- said, such person shall not in such case be entitled to the benefit of this act; and if any person against whom any such complaint shall have been made as aforesaid shall not attend, or send some person on his or her behalf, the Justice of the Peace shall thereupon APPENDIX. 303 nominate a person for him out of such persons so proposed as afore- said. VIII. And be it further enacted, That the said arbitrators and Investigation of referees shall meet at the time and place fixed by the Justice of the the complaint. Peace by whom such referees were appointed, and shall, by inspec- tion of the work in regard to which the dispute may have arisen, by hearing and examining the parties, or any other persons on their behalf, or that attend to give evidence respecting the matters in dispute, upon oath, (which the said arbitrators and referees are here- by empowered to administer), or otherwise, or by otherwise ascer- taining the true state of the case, in such manner as to such arbi- trators and referees shall appear necessary, proceed to determine the matter or matters in dispute referred to them ; and the award to be made by such arbitrators and referees shall be final and conclusive between the parties, without being subject to review or challenge by any court or authority whatsoever, IX. And be it further enacted, That it shall be lawful for Arrest and com- any arbitrator or arbitrators, referee or referees, and he or they º º are hereby authorized and required at the request in writing of nesses. any of the parties, to issue his or their summons to any witness or witnesses to appear and give evidence before such arbitrator or arbitrators, referee or referees, at the time and place appointed for hearing and determining any such dispute, and which time and place shall be specified in such summons; and if any per- Son So Summoned to appear as a witness as aforesaid, shall not ap- time and place specified in such summons, or offer some reasonable excuse for the default, or appearing according to such summons, shall not submit to be examined as a witness, and give his evidence be- fore such arbitrator or arbitrators, referee or referees, touching the matter of such dispute, then and in every such case.it shall be law. ful for any one or more of His Majesty's Justices of the Peace act- ing in and for the county, stewartry, riding, division, barony, city, burgh, town, or place, where such dispute shall have arisen, aud they are hereby authorized, (proof on oath in the case of any person not appearing according to such summons, having been first made before such Justice or Justices, of the due service of such sum- mons on every such person by delivering the same to him, or by leaving the same twenty-four hours before the time appointed for Such person to appear before such arbitrator or arbitrators, referee or referees, at the usual place of abode of such person,) by warrant under the hands of any such Justice or Justices, to commit any 304 APPENDIX, Adjournment of the com- plaint from the referees to a Justice. Proceeding where One re- feree refuses to go before the Justice. Manufacturer such person so making default in appearing, or appearing and re- fusing to give evidence, to some prison within the jurisdiction of any such Justice or Justices, there to remain, without bail or main- prize, for any time not exceeding two calendar months, nor less than seven days, or until such person shall submit himself to be examined, and give his evidence before such arbitrator or arbitra- tors, referee or referees as aforesaid: Provided always, that in case such dispute shall be heard and determined before such offender shall submit to be examined, and give evidence as aforesaid, then and in every such case, he, she, or they shall be imprisoned the full term of such commitment. X. And be it further enacted, That in case such arbitrators and referees so appointed cannot agree upon and decide such matter or matters in dispute so referred as aforesaid, or shall not make and sign their award within three days after the date of the order of of such Justice, certifying their appointment, then the said arbitra- tors and referees shall, without delay, go before the Justice by whom they were appointed, and in case of his absence or indisposi- tion, before any other of His Majesty's Justices of the Peace acting in and for the county, stewartry, riding, division, barony, city, burgh, town, liberty, or place, and residing nearest to the place where the meeting to settle such dispute shall have taken place, and shall state to such Justice or Justices who may be present the points in difference between them the said arbitrators and referees, which points in difference the said Justice or Justices shall and is and are hereby authorized and required to hear and determine upon the statement of the arbitrators and referees; and the said Justice or Justices is and are hereby directed and required to settle and deter- mine the matter in dispute with all possible dispatch, and in all cases, within the space of two days after the expiration of the time hereby allowed to the arbitrators and referees to make and sign their award; and the determination of such Justice or Justices shall be final and conclusive between the parties so differing as aforesaid, without being subject to review or challenge by any court whatso- GV6I’. XI. And be it further enacted, That if either arbitrator or referee shall neglect or refuse to go before such Justice of the Peace in the manner herein directed, it shall and may be lawful for such Justice, after summoning the arbitrators to attend him, to determine the matter or matters in dispute, upon the statement and representation of either of the arbitrators who shall come before him. XIII. Provided always, and be it further enacted, That no Jus- APPEN DIX. - - 305 tice of the Peace, being also a master manufacturer or agent, shall act not to act as as such Justice under this act. Justice. XIII. Provided always, and be it further enacted, That as well Disputes may in all such cases of dispute as aforesaid as in all other cases, if the ... parties mutually agree that the matter in dispute shall be arbitrated of arbitration and determined in a different mode to the one hereby prescribed, "Pºº Which the such agreement shall be valid, and the award and determination º: may thereon final and conclusive between the parties, and the same pro- ceedings of distress, sale, and imprisonment, as hereafter mentioned, shall be had towards enforcing such award, (by application to any Justice of the Peace of the county, stewartry, riding, division, bar- ony, city, town, burgh, or place within which the parties shall re- side), as are by this act prescribed for enforcing awards made under and by virtue of its provisions. XIV. Provided always, and be it further enacted, That where partners, any work shall have been delivered to any workman by the agent agents, and or servant of any master or masters, to be when finished delivered º: º: be to such agent or servant; and also where two or more persons shalleonsidered º º principals. carry on the business of such manufacture as partners, in every such “ case respectively, the like proceedings shall and may be had and made against such agent, servant, or any partner, and shall be as effectual as if the same had been had and made against the princi- pal, or all the partners; and all the said persons respectively shall obey the award made thereupon, and all such order or orders as shall be made by the said Justice or Justices in or respecting the matters in dispute, and shall be subject to the same proceedings and consequences for refusing or delaying to abide by or perform the same, as if the proceedings had been had against the principal, or against all the partners. XV. And be it further enacted, That it shall be lawful in all Masters not re- cases for any master or workman, by writing under his hand, to au- º: * € thorize any person to act for him in submitting to arbitration and another person attending arbitrators or Justices touching the matter of any arbitra-" “*” tion. - - XVI. Provided also, and be it further enacted, That in all cases Provision for where any proceedings may be had against a master or masters un- ſº .. der this act, or where such proceedings shall have been commenced, ing bankrupt and the master or masters shall become or be bankrupt, or any as-after proceed- signment of his or their estate or effects shall have been made under. COINTIIlêIl- the said bankruptcy, or otherwise by deed or in law, the factor or trustee upon, or the assignee or assignees of such estate or effects, shall be liable to the proceedings authorized by this act against the U. 306 APPENT) IX, master or masters, as fully as the master or masters was or were before the bankruptcy or assignment ; and such proceedings may be commenced or carried on against such factor, trustee, assignee, or as- signees, who shall fulfil and abide by the award made thereupon, and all such order or orders as shall be made by the said Justice or Justices in or respecting the matters in dispute, and shall be subject to the same proceedings and consequences for wilfully refusing or delaying to abide by or perform the same, as if the proceedings had been had against the master or masters before his or their bankrupt- cy, or the assignment of his or their estate or effects; provided that all sums of money to be paid in pursuance of such award or orders shall be recoverable only out of the estate or effects of such mas- ter or masters, and not out of the proper money of such factor, trus- tee, assignee, or assignees. In whose name XVII. And be it further enacted, That where any married woman, Pºiº or infant under the age of twenty-one years, shall have cause of com- shall be, where tº e e º § the complainant plaint in any of the cases provided for by this act against any master is a married or masters, his or their agent or servant, or factor or trustee, or as- WOIſlall OT IIl- tº & * tº fant. signee or assignees as aforesaid, such complaint may be lodged, and all further proceedings thereupon had, by and in the name of the husband of such married woman, and of the father, or, if dead, of the mother, or if on the death of both parents, of any of the kindred of any such infant, or of the surety or sureties in any indenture of apprenticeship of any such infant, being an apprentice, or of any person nominated by such infant, if he or she shall not have parent, kindred, or surety ; and all such proceedings shall be as effectual, valid, and binding, as if such married woman was sole, and such infants were of full age, and pursued by themselves the remedies provided by this act. Tickets of par- XVIII. And be it further enacted, That with every piece of work * given out by the manufacturer to a workman to be done, there shall the work. (if both parties are agreed) be delivered a note or ticket, in such : form as the said parties shall mutually agree upon; and which said note or ticket, in the event of dispute between the manufacturer and workman, shall be evidence of all matters and things mentioned therein or respecting the same. Duplicates of XIX. And be it further enacted, That a duplicate of every such ** note or ticket shall be made and kept by the master or agent de- livering the same, which duplicate shall be evidence of all the mat- ters and things therein contained, in case the workman shall not produce to the arbitrators, or the said Justice, as the case may be, the said note or ticket so delivered to him with the said work. APPENDIX. 307 XX. And be it further enacted, That it shall not be allowable to Manufacturers any manufacturer, who shall have received into his possession any receiving arti- article without objection made within twenty-four hours by himself, jection not to or his clerk or foreman, afterwards to make any complaint on ac- * after- count of work so received. - XXI. Provided always, and be it further enacted, That if the Extension ofthe parties by and between whom the said reference shall take place as º for aforesaid, shall think it expedient, or be desirous to extend the time award. hereby limited for the making the award or umpirage, it shall and may be lawful for them to extend the same accordingly by endorsement, according to the form in the schedule hereunto annexed, on the back of the order of the Justice of Peace, certifying the appointment of the referees, to be signed by both of them in the presence of one or more credible witness or witnesses. XXII. And be it further enacted, That the award or umpirage Form of the to be made upon any reference demanded under this act, shall and i. .. may be drawn up and written at the foot or upon the back of the said order, certifying the appointment of the referees, according to the form in the schedule hereunto annexed. - - XXIII. And be it further enacted, That upon fulfilment of the On the award award or umpirage, the same shall be acknowledged by the party *...* in whose behalf the same was made, by an acknowledgment at the shall be ac- foot of the said award, in the form of the schedule hereunto annexed, knowledged. which, with the award, shall thereupon be delivered to the party fulfilling the same. XXIV. And be it further enacted, That if any party shall refuse The perfor- or delay to fulfil an award under this act, for the space or term of. iº two days after the same shall have been reduced into writing, it enforced by shall be lawful for any such Justice as aforesaid, on the application Hºhe of the party aggrieved, and he is hereby required by warrant underparty shall be his hand according to the form of the schedule hereunto annexed,” risoned. or in some other form to the like effect, to cause the sum and sums of money directed to be paid by any such award to be levied by dis- tress and sale of any goods and chattels of the person or persons liable to pay the same, together with all costs and charges attending such distress and sale, such sale to take place within such time, not exceeding five days, as the said Justice shall think proper: and the overplus, if any, to arise by such sale, to be rendered to the owners of the goods and chattels distrained; and in case it shall appear by any return to such warrant that no sufficient distress can be readily had, which return may be in the form contained in the schedule hereunto annexed, or in some other form to the like effect, it shall be cles without ob- 308 ATPPENDIXs In certain cases the warrant of distress shall be lawful for any such Justice as aforesaid, and he is hereby required by warrant under his hand, according to the form of the schedule hereunto annexed, or in some other form to the like effect, to com- mit the person or persons so liable as aforesaid to the common gaol, or some house of correction within his or their jurisdiction, there to remain without bail for any time not exceeding three months. XXV. And whereas cases may occur where the recovery of such sum or sums of money by distress and sale of the goods and chat- withheld, and tels of the defaulter may appear to the Justice or Justices of the the defaulter committed to prison. On payment of the sum award- ed, with the costs and charges, the party shall be discharged from prison. Warrant of commitment to be in form set forth in sche- dule. No appeal or certiorari shall lie. Proceedings not invalid for want of form. Fees to be taken for pro- ceedings under this act. Peace by whom the warrant is to be issued to be attended with con- sequences ruinous or in an especial manner injurious to the defaulter and his family; to prevent which consequences, be it further enact- ed., That the said Justice or Justices, in all such cases, shall with- hold such warrant, and commit the defaulter to the common gaol or some house of correction within his or their jurisdiction, there to re- main without bail for any time not exceeding three muonths; such commitment to be in the form or to the effect of the form in the schedule to this act annexed. XXVI. And be it further enacted, That where any person shall be committed to prison for refusing or delaying to fulfil an award as aforesaid, and such person shall, at any time during the period of his or her imprisonment, pay to the governor or keeper of the prison the full amount of the sum awarded, with all reasonable expenses incurred through such refusal or delay, it shall be lawful for such governor or keeper of such prison, and he is hereby required forth- with to discharge such person from his custody. XXVII. And be it further enacted, That the Justice or Justices by whom any person or persons shall be committed to prison for not appearing as a witness, or not submitting to be examined, shall cause the warrant or order for such commitment to be drawn up in the form or to the effect set forth in the schedule to this act. XXVIII. And be it further enacted, That no appeal or certiorari shall lie against any proceedings under this act. XXIX. And be it further enacted, That no proceedings under this act shall be invalid for want of form. XXX. And be it further enacted, That the following and no higher fees shall be allowed to be taken for any proceeding under this act ; (that is to say,) To the Clerk of the Justice or Justices : For each summons tºº tº tº- sº For every oath or affirmation tº &= two-pence. three-pence. APPEN ID IX. - 309 For drawing and entering the order - four-pence. For every warrant t- - º --- sixpence. To the Constable or other Peace Officer : For service of summons or order tºº. - four-pence. For executing warrant of distress and sale of goods, one shilling. For custody of goods distrained, per diem three-pence. For every mile he shall travel tºº - three-pence. For every caption -> º tºº - sixpence. And a table of fees, signed by the clerk to such Justice or Justices, shall be hung up in every place where any general or quarter Session, or petty or other sessions of the peace shall be held. XXXI. And be it further enacted, That all costs, time, and ex-Costs and ex- penses attending the application to Justices, to be made under this º to act, and of the arbitration pursuant thereon, shall be settled by the arbitrators or arbitrator by whom such dispute shall be settled ; and where the same shall be determined by any Justice of the Peace, pursuant to this act, then the costs, time, and expenses aforesaid shall be settled by such Justice ; and where the arbitrators appoint- ed as aforesaid cannot agree as to the costs, time, and expenses to be allowed, the same shall be settled by the Justice or Justices of the Peace by whom the said arbitrators were named, and in case of his absence or indisposition, by any Justice of the Peace for the same county, stewartry, riding, division, barony, city, burgh, li- berty, town, or place nearest to the place at which the arbitrators met to settle the dispute : Provided always, that no master manu- facturer, his foreman, or agent, shall in any case be allowed for costs, time, or expenses, by the said Justice or Justices, unless it shall ap- pear to him or them that the proceedings of the workmen were vexa- tious and oppressive. - XXXII. Provided always and beit enacted, That every agreement, Proceedings submission, award, ticket, matter, or thing, under and by virtue of . º this act, or relating to any other mode of arbitration as aforesaid, shall and may be drawn up and written upon unstamped paper. XXXIII. Provided also, and be it further enacted, That no action Limitation of shall be brought against any arbitrator, Justice of the Peace, con- º: stable, headborough, or other officer, or against any other person or in execution of persons whomsoever, for any matter or thing whatsoever done or this act. committed under or by virtue or in the execution of this act, unless such action shall be brought within six calendar months next after the doing or committing of such matter or thing. 3 l () APPENDIX. Persons sued for acting in execution of this act may plead the ge- meral issue. Not to extend to repeal any act not hereby repealed. XXXIV. Provided also, That if any action or suit shall here- after be commenced or prosecuted against any person or persons for any thing done under, by virtue, or in the execution of this act, such person or persons may plead the general issue, and give this act and the special matter in evidence; and if the plaintiff shall become nonsuited or suffer discontinuance, or forbear further prosecution, or if judgment shall be given for the defendant or defendants, such defendant or defendants shall recover his, her, or their full costs, and for which he, she, or they shall have like remedy as in cases where costs by law are given to defendants. - XXXV. Provided always and be it further enacted, That nothing in this act contained shall extend or be construed to extend to re- peal, abridge, annul, or make void any of the clauses, provisions, remedies or powers contained in any law or statute now in force, and not repealed by this act. SCHEDULE. Form of the Award to be written at the Foot or upon the Back of the Order of the Justices of Peace certifying the Reference. We, I. K. and L. M. [name and describe the referees] the re- ferees appointed to settle the matters in dispute between the parties within named [or, I. K. one of the referees so appointed; or L. M. the other referee appointed having failed to attend ; or I, N. O. the Justice, as the case may be] ; do hereby adjudge and determine that [here set forth the determination ; to which the referee or re- ferees, or Justice, as the case may be, shall subscribe their names.] Form of Endorsement, extending the Time limited for making the Award. We, A. B. and C. D., parties to the within reference, do hereby agree to extend the same to the day of inclusive. Witness our hands this day of A. B. Witness, C. D. Form of Acknowledgment of Fulfilment of the Award, to be written at the Foot or on the Back thereof. I, A. B. do hereby acknowledge that the above award hath been fulfilled by C. D. who is hereby discharged of the same. Witness my hand this day of Witness, A. B. APPENDIX. 3.11 Form of the Oath to be administered by the Arbitrators or Justice to the Parties and Witnesses under this Act. The evidence that you shall give before us, the arbitrators ap- pointed by A. B. and C. D. [the parties] to determine the matters in difference between them, under and by virtue of an act passed in the fifth year of the reign of King George the Fourth, intituled An Act [state the title of this Act], shall be the truth, the whole truth, and nothing but the truth. So help you God. Form of Commitment of a Person summoned as a Witness before the Arbitrators. Whereas proof on oath hath been made before me, one of His Majesty's Justices of the Peace for the county [or riding, stewartry, division, city, burgh, liberty, town, or place] of on this day of that A. B. hath been duly summoned, and hath neglected to appear and give evidence before C. D. and E. F. the arbitrators appointed by and between G. H. and I. K. to determine the matters in dispute between them at in the county, [or riding, stewartry, division, city, burgh, liberty, town, or place] of on the day of under and by virtue of an act made in the fifth year of the reign of his present Majesty, intituled An Act [here set forth the title of this actl, and the said A. B. being required by me, the said Justice, to give evidence before the said arbitrators, and still refusing so to do, therefore I, the said Justice, do hereby, in pursuance of the said act, commit the said A. B. to the [describing the prison and the house of correction] there to remain without bail or mainprize for his [or her] offence aforesaid, until he [or she] shall submit himself [or herself] to be examined, and give his [or her] evidence before the said arbitrators, touching the matters referred to them as aforesaid, or shall otherwise be discharged by due course of law : And you the [constable or other peace officer or officers to whom the warrant is directed] are hereby authorized and required to take into your custody the body of the said A. B. and him [or her] safely to convey to the said prison [or house of correction] and him [or her] there to deliver to the gaoler [or keeper] thereof, who is hereby authorized and required to receive into his custody the body of the said A. B. and him [or her] safely to detain and keep, pursuant to this commit- ment. Given under my hand, this day of in the year of our Lord 312 APPENDIX. This commitment to be directed to the proper peace officer, and the gaoler [or keeper] of the prison [or house of correction.] Form of Warrant of Distress. To the constable of Whereas of under an award made by on the day of in the year of our Lord pursuant to an act passed in the fifth year of the reign of his pre- sent Majesty, intituled An Act [state the title of this act], is liable to pay to of the sum of and also the sum of and the said having refused or neglected to pay the same for the space of two days and upwards subsequent to the making such award, these are therefore to com- mand you to levy the said sum of by distress and sale of the goods and chattels of the said and I do hereby order and direct the goods and chattels so to be distrained to be sold and disposed of within days, unless the said sum of - for which such distress shall be made, together with the reasonable charges of taking and keeping such distress, shall be sooner paid ; and you are also hereby commanded to certify to me what you shall do by virtue of this my warrant. Given under my hand and seal, at the day of Form of the Constable's Return to the Warrant of Distress. I, constable of do hereby certify to Justice of the Peace of that I have made diligent search for, but do not know of, nor can find any goods and chattels of by distress and sale whereof I may levy the sum of pursuant to his warrant for that purpose. Dated the day of in the year of our Lord Given under my hand this day of in the year of our Lord Form of Commitment thereupon to the House of Correction. Here name *} To the constable of and also to the keeper County. of the house of correction at Whereas of under an award made by on the day of in the year of our Lord pursuant to an act passed in the fifth year of the reign of his present Majesty, intituled An Act [state the title of this act1, became liable to pay to the sum of and also the sum of for costs, time, and expenses, making toge- ther the sum of and having refused or neglected to pay the APPEN DIX. 3.13 same for the space of two days and upwards subsequent to the mak- ing of such award, my warrant was according to the provisions of the said act, duly made and issued for the levying the said sum of by distress and sale of the goods and chattels of the said ; and whereas it appears by the return of constable of dated the day of that he hath made diligent search for, but doth not know of, nor can find any goods and chattels of the said by distress and sale whereof the said sum of may be levied pursuant to my said warrant : These are therefore to command you the said constable of to apprehend the said and con- vey him to the said house of correction at aforesaid, and deliver him there to the keeper of the said house of correction; and these are also to command you, the keeper of the said house of cor- rection, to receive him the said into the said house of correction, and there keep him without bail or mainprize for the space of months, unless the said sum of so ordered to be paid as aforesaid, shall be sooner satisfied, with all reasonable expenses. Given under my hand and seal, at the day of Form of Commitment where the Warrant of Distress is withheld. Here name *} To the constable of and also to the County. keeper of the house of correction at Whereas of under an award made by on the day of in the year of our Lord pursuant to an act passed in the fifth year of the reign of his present Majesty, intituled An Act [state the title of this act, became liable to pay to the sum of and also the sum of for costs, time, and expenses, making together the sum of which he has refused or neglected to pay for the space of two days and upwards subsequent to the making of such award; and whereas it appears to me that the recovery of such sum and warrant of distress and sale of the goods and chattels of the said will be attended with consequences ruinous or in an especial manner injurious to the defaulter [and his family, if any] and I have therefore determined to withhold such warrant, and to commit the said to prison, pursuant to the said act: These are therefore to command you, the said constable of to apprehend the said and convey him to the said house of correction at aforesaid, and deliver him there 314 APPENDIX, * 5 G. I.W. c. 96. Period for mak- ing complaints extended. Justices having jurisdiction where the par- ty complained against resides to have juris- diction in the matter of the said act. to the keeper of the said house of correction: and these are also to command you, the keeper of the said house of correction, to receive him the said into the said house of correction, and there keep him without bail or mainprize for the space of months, unless the said sum of so ordered to be paid as aforesaid shall be sooner satisfied, with all reasonable expenses. Given under my hand and seal, at the day of By 1 Vict. c. 67, dated 15th July 1837, it is enacted,— Whereas an Act was passed in the fifth year of the reign of His Majesty King George the Fourth, intituled An Act to consolidate and amend the Laws relative to the Arbitration of Disputes between Masters and Workmen : And whereas it is provided by the said act that all complaints under the same by any workman for any cause except as to bad materials, shall be made within six days after such cause of complaint shall arise ; but the said period of six days has been found too short for the purpose thereby intended: Beit there- fore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the au- thority of the same, that the same be extended to fourteen days. II. And whereas it is enacted by the said act, that various differ- ences under the same shall be subject as therein mentioned to the adjudication of any Justice of the Peace or Magistrate of any county, riding, division, stewartry, barony, city, burgh, town, or place with- in which the parties reside : And whereas many cases have arisen where no Justice of the Peace or Magistrate could be found who has jurisdiction where both of the parties differing as aforesaid reside : in consequence whereof it has been doubted whether the above beneficial enactment can in such cases take effect; and for the remedy thereof it is necessary that the jurisdiction and powers which are by the said act conferred on the Justices or Magistrates of the dis- trict where both parties reside shall in future be exercised by the Justices or Magistrates of the district where the party complained against resides; be it enacted, That in the place of the Justices or Magistrates of the district where both parties reside, the Justices or Magistrates of the district where the parties complained against reside shall have the said jurisdiction and powers; and whatever acts and duties are by the said act required to be done by the first-mention- ed Justices or Magistrates, or any one of them, shall be done by the APPENDIX, 315 last-mentioned Justices or Magistrates, or by any one of them; and the said act shall in all respects be construed as if the words “where the party complained against resides” had been originally inserted in the third section of the said act instead of the words “within which the parties reside.” : III. And be it further enacted, That wherever the expression Interpretation “Justice of the Peace" occurs in the said act it shall be construed “"“” to mean “Magistrate.” V. Although an abridgment of the Statute now in force relative to the combination of workmen has been given in Chapter XXV., it is thought proper to give the Act at length, to prevent the chance of a mistake. 6 GEo. IV. c. 129, dated 6th July 1825. Whereas an act was passed in the last Session of Parliament, in- tituled An Act to repeal the Laws relative to the Combination of 5 G. lv. c. 95. Workmen, and for other purposes therein mentioned, by which act various statutes and parts of statutes relating to combinations among workmen for fixing the wages of labour, and for regulating or con- trouling the mode of carrying on any manufacture, trade, or busi- ness, were repealed, and other provisions were made for protecting the free employment of capital and labour, and for punishing com- binations interfering with such freedom, by means of violence, threats, or intimidation: And whereas the provisions of the said act have not been found effectual: And whereas such combinations are inju- rious to trade and commerce, dangerous to the tranquillity of the country, and especially prejudicial to the interests of all who are concerned in them : And whereas it is expedient to make further provision, as well for the security and personal freedom of individual workmen in the disposal of their skill and labour, as for the security of the property and persons of masters and employers, and for that purpose to repeal the said act, and to enact other provisions and re- gulations in lieu thereof: Be it therefore enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after Recited act the passing of this act, the said recited act of the last Session of Par- “P” liament shall be and the same is hereby repealed. 316 APPENDIX. Certain acts shall stand and remain repeal- ed, viz. 33 Edw. I. so far as relates to combination of Workmen. 3 H. VI. c. 1. 33 H. VIII. st. 1. c. 9. (I.) 2 and 3 Ed. VI. c. 15. 5 Parl. Jac. I. (S.) 7 Parl. Jac. I. (S.) 5 Parl. Mary. (S.) 7 Parl. Jac. VI. (S.) 13 and 14 C. II. c. 15, in part. II. Provided always, and be it enacted, That from and after the passing of this act, so much of an act made in the thirty-third year of the reign of King Edward the First, concerning conspirators who do confeder or bind themselves by oath, covenant, or other alliance, as relates or extends to combinations or conspiracies of workmen or other persons to obtain an advance of or to fix the rate of wages, or to lessen or alter the hours or duration of the time of working, or to decrease the quantity of work, or to regulate or controul the mode of carrying on any manufacture, trade, or business, or the manage- ment thereof, or to combinations or conspiracies of masters, manu- facturers, or other persons, to lower or fix the rate of wages, or to increase or alter the hours or duration of the time of working, or to increase the quantity of work, or to regulate or controul the mode of carrying on any manufacture, trade, or business, or the manage- ment thereof, or to oblige workmen to enter into work; and also so much of a statute made in the third year of King Henry the Sixth, as relates to the annual congregations and confederacies made by ma- sons in their general chapters assembled; and also a certain act passed in the Parliament of Ireland, in the thirty-third year of King Henry the Eighth, intituled An Act for Servants Wages ; also a cer- tain act passed in the second and third years of King Edward the Sixth, intituled An Act touching Victuallers and Handicraftsmen ; and also a certain other act passed in the Parliament of Scotland, in the fifth Parliament of King James the First of Scotland, inti- tuled Of the Fees of Craftsmen, aud the Price of their Worke , also a certain other act passed in the Parliament of Scotland, in the fifth Parliament of King James the First of Scotland, intituled Of the Fees of Workmen ; also a certain other act passed in the Parliament of Scotland, in the fifth Parliament of King James the First of Scot- land, intituled Of Writches and Masones ; also a certain other act passed in the Parliament of Scotland, in the seventh Parliament of King James the First of Scotland, intituled The Price of ilk Work- manshippe ; also a certain other act passed in the Parliament of Scot- land, in the fifth Parliament of Queen Mary of Scotland, intituled The Price of Craftesmenne's Wark, of Meate and Drinke in Ta- vernes ; also a certain other act passed in the Parliament of Scot- land, in the seventh Parliament of King James the Sixth of Scotland, intituled Anent the setting of Ordour and Price in all Stuffe also so much of a certain other act passed in the thirteenth and fourteenth years of King Charles the Second, intituled An Act for regulating the Trade of Silk Throwing, as provides and enacts, that the cor- poration of silk throwers should not, by virtue of that act, nor any thing therein contained, make any orders, ordinances, or bye laws, APPENI) IXs 31% to set any rates or prices whatsoever upon the throwing of silk, to bind or enforce their members to work at ; also a certain other act passed in the seventh year of King George the First, intituled An 7 G. I. st. i. Act for regulating the Journeymen Tailors within the Weekly Bills.“ 13. in part. of Mortality, excepting so much thereof as relates to the recovery of wages, or to journeymen tailors or servants departing from their service, or refusing to enter into work or employment, as therein mentioned; also so much of an act passed in the twelfth year of King George the First, intituled An Act to prevent unlawful Com-12 G. I. c. 34. binations of Workmen employed in the Woollen Manufactures, and " part. for better Payment of their Wages, as provides that contracts, co- venants, or agreements, bye laws, ordinances, rules, and orders, made or entered into by or between persons brought up in, or pro- fessing, using, or exercising the art and mystery of a woolcomber or weaver, or journeyman woolcomber or journeyman weaver, as therein mentioned, shall be illegal, null, and void, and as punishes woolcombers, weavers, journeymen woolcombers and weavers, and other persons concerned in the woollen manufactures, for keeping up, continuing, acting in, making, entering into, signing, sealing, or being knowingly concerned in presuming or attempting to put in execution such agreements, bye laws, ordinances, rules, or orders, as therein mentioned, and as provides that the provisions of the said act of the twelfth of George the First, just recited, shall extend to the persons therein mentioned ; also so much of a certain other act passed in the Parliament of Ireland, in the third year of King 3 G. I.I. c. 14. George the Second, intituled An Act to prevent unlawful Combina- (*) "P" tions of Workmen, Artificers, and Labourers, employed in the several Trades and Manufactures of this Kingdom, and for the better Pay- ment of their Wages ; as also to prevent Abuses in making of Bricks, and to ascertain their Dimensions, as declares illegal, null, and void the contracts, covenants, agreements, bye laws, ordinances, rules, and orders therein mentioned, and makes it an offence to keep up, continue, act in, make, enter into, sign, Seal, or be knowingly con- cerned therein, and to presume or attempt to put the same into ex- ecution, as therein mentioned ; also so much of a certain other act passed in the Parliament of Ireland, in the seventeenth year of King George the Second, intituled An Act for continuing several 17 G. II. c. 28. Statutes now near expiring, and for amending other Statutes, and for (I.) in part. other purposes therein mentioned, as declares the assemblies therein mentioned to be unlawful assemblies, the houses where they meet common nuisances, and punishes the master and mistress thereof, as likewise those who enter into the contracts, covenants, or articles 3.18 APPENDHXe 22 G. II. c. 27. in part. 29 G. I.I. c. 23. in part. 3 G. III. c. 17. (I.) in part. therein mentioned, or collect or pay money for the support of per- Sons as therein mentioned; also so much of a certain other act passed in the twenty-second year of King George the Second, in- tituled An Act for the more effectual preventing Frauds and Abuses committed by persons employed in the Manufacture of Hats, and in the Woollen, Linen, Fustian, Cotton, Iron, Leather, Fur, Hemp, Flaw, Mohair, and Silk Manufactures, and for preventing unlawful Combinations of Journeymen Dyers and Journeymen Hot-pressers, and of all persons employed in the said several Manufactures, and for the better Payment of their Wages, as extends those provisions of the said act of the twelfth of George the First herein mentioned to the persons therein mentioned; also so much of a certain other act pass- ed in the twenty-ninth year of King George the Second, intituled An Act to render more effectual an Act passed in the Twelfth Year of the Reign of His late Majesty King George, to prevent unlawful Combinations of Workmen employed in the Woollen Manufactures, and for better Payment of their Wages ; and also an Act passed in the Thirteenth Year of the Reign of His said late Majesty, for the better Regulation of the Woollen Manufacture, and for preventing Disputes among the persons concerned therein, and for limiting a Time for Pro- secution for the Forfeiture appointed by the aforesaid Act, in case of the Payment of the Workmen's Wages in any other manner than in Money, as relates to the making of rates for the payment of wages, continuing and altering and notifying them as therein men- tioned ; also so much of a certain other act passed in the Parlia- ment of Ireland, in the third year of King George the Third, intit- uled, An Act for continuing and amending certain temporary Sta- tutes heretofore made, for the better Regulation of the City of Cork, and for enlarging the Salary of the Treasurer, and for the better regulating the Sale of Coals in the said City, and for erecting and continuing Lamps in the same, and for the better preserving the Streets and Highways therein, and for confirming and establishing a Court of Conscience in the said City, and for regulating the Assize of Bread therein, and for securing the Quays by Parapet Walls, as relates to the assemblies and combinations of artificers, journey- men, apprentices, labourers, and manufacturers therein mention- ed; also so much of a certain other act passed in the Parliament of Ireland, in the third year of King George the Third, intituled 3 G. III. c. 84. An Act for the better Regulation of the Linen and Hempen Manu- (I.) in part. factures, as relates to meeting in order to consult upon or enter into rules, agreements, or combinations to ascertain or fix the price of labour or workmanship, and as relates to administering oaths or APPENDIX. 3.19 declarations tending to fix the price of wages or workmanship, and as relates to issuing and delivering tickets, certificates, and tokens of parties being licensed to work, and as relates to rules, orders, and regulations relating to the price or wages of labour or workmanship, and as relates to oaths to enter into combinations or agreements to ascertain or fix the price of wages or workmanship, and to oaths and combinations not to work for a particular em- ployer, as therein mentioned; also a certain other act passed in the eighth year of King George the Third, intituled An Act to amends G.III. c. 17. an Act made in the Seventh Year of King George the First, intituled “An Act for regulating the Journeymen Tailors within the Weekly Bills of Mortality ;” also so much of a certain other act, passed in the Parliament of Ireland in the eleventh and twelfth years of King George the Third, intituled An Act for the Regulation of the City II and 12 G. of Cork, and for other Purposes therein mentioned relative to the said III. c. 18. (L) City, as relates to the meetings and assemblies therein mentioned, the administering and taking oaths and declarations, to the tickets, certificates, advertisements, and writings, and to the rules, orders, agreements and regulations, and to the combinations and agreements to ascertain or fix the price of wages, labour, or workmanship, or not to work, and as relates to the refusal or neglect, by persons not in actual service, to work on application made, and as relates to the detection and discovery of assemblies and combinations for any of the above recited purposes, and as relates to ascertaining wages as therein mentioned ; also so much of a certain other act, passed in the Parliament of Ireland in the eleventh and twelfth years of King George the Third, intituled An Act for regulating the Journeymen 11 and 12 G. Tailors and Journeymen Shipwrights of the City of Dublin, and III, c. 33. the Liberties thereof, and of the County of Dublin, as punishes those (I.) in part. who permit the clubs and societies therein mentioned to be kept or held in their houses or apartments, and as makes the contracts, covenants, and agreements therein mentioned, and oaths to enforce them, illegal, and as punishes persons for keeping up, continuing, acting in, making, entering into, signing, sealing, or being know- ingly interested, or concerned in such contracts, covenants, or agree- ments, and as punishes persons not retained or employed, for refus- ing to enter into work or employment on request made, as therein mentioned, and as regulates the hours of work and the rate of wages as therein mentioned; also so much of a certain other Act passed in the thirteenth year of King George the Third, intituled An 13 G.III. c. 68. Act to empower the Magistrates therein mentioned to settle and re-in part. gulate the Wages of Persons employed in the Silk Manufacture 320 APPENIDIX. 17 G. III. e. 55. in part. 19 and 20 G. III. c. 19. (I.) in part. I9 and 20 G. III. c. 24. (I.) in part. 19 and 20 G. III. c. 36. (I.) in part. 4. within their respective Jurisdictions, as relates to settling, regulating, ordering and declaring the wages and prices of work, and the noti- fication thereof, and makes it an offence to deviate from such settle- ment, regulation, order, and declaration, or to ask, receive, or take more or less wages or larger or less prices than shall be so settled, or to enter into combinations, or for that purpose to decoy or solicit, or to assemble, as therein mentioned, and as relates to the detection of such offences, and as makes it an offence to retain or employ journeymen weavers, out of the limits therein mentioned; or to give, allow, or pay, or cause to be given, allowed or paid, more or less wages than shall be settled, as therein mentioned; also so much of a certain other act, passed in the seventeenth year of King George the Third, intituled An Act for the better Regulating the Hat Manufactory, as relates to the keeping up, acting in, making, en- tering into, signing, sealing, or being knowingly concerned in the contracts, covenants, or agreements, bye laws, ordinances, rules, or orders of the clubs, societies, or combinations therein mentioned, or the presuming or attempting to put the agreements, bye laws, or- dinances, rules or orders in execution, or to the attending meetings, clubs, societies, or combinations, or to the summoning, giving notice to, or calling upon, collecting, demanding, or receiving, persuading, enticing, or inveigling, or endeavouring to persuade, entice or in- veigle, paying money, making or entering into subscriptions or con- tributions as therein mentioned ; also so much of a certain other act passed in the Parliament of Ireland in the nineteenth and twentieth years of King George the Third, intituled An Act to prevent Com- binations, and for the further Encouragement of Trade, as declares that combinations in trade are public nuisances, and that the acts therein enumerated shall be considered as evidences of unlawful combinations, and sufficient for the conviction of any person who shall be guilty of the same, and as avoids rules, bye laws, and re- gulations contrary to its provisions, and oaths for obeying or ex- ecuting the same, and as provides for the case of an act of combina- tion, for which no specific punishment is pointed out as therein mentioned ; also so much of a certain other act, passed in the Par- liament of Ireland in the nineteenth and twentieth years of King George the Third, intituled An Act for the better Regulation of the Silk Manufacture, as relates to the wages and prices for work, to combinations to raise wages, and the decoying or soliciting jour- neymen weavers, as therein mentioned ; also so much of a certain other act passed in the Parliament of Ireland in the nineteenth and twentieth years of King George the Third, inti tuled An Act for APPEND IX. 321 aregulating the curing and preparing Provisions, and for preventing Combinations among the several Tradesmen and other Persons em- ployed in making up such Provisions, and for regulating the Butter Trade in the City of Dublin, and for other Purposes therein men- tioned, as relates to summoning persons to appear at meetings and assemblies, and as relates to administering oaths or declarations, to the issuing and delivering of messages, tickets, certificates, tokens, advertisements, or writings, to making or joining in making rules, orders, agreements, and regulations, as therein mentioned, and as re- lates to taking oaths, or entering into combinations or agreements, to ascertain or fix the price of wages, or of labour or workmanship, or to make any rule, order, agreement, or regulation, and to taking oaths, and entering into combinations and agreements not to work for a particular person, as therein mentioned, and as relates to the fixing of wages; also so much of a certain other act, passed in the Parliament of Ireland in the twenty-fifth year of King George the - Third, intituled An Act for granting the Sums of Twenty thousand ; º, º C. Pounds, Five thousand Pounds, and Four thousand Pounds, pºt.” to certain Trustees, and for promoting the several Manufactures therein named, as relates to the ascertaining the rates of labour and prices of workmanship, as therein mentioned, and as requires an affidavit to be filed previous to the commencement of a suit as there- in mentioned ; also so much of a certain other act, passed in the thirty-second year of King George the Third, intituled An Act for 32 G.III. c. 44. extending the Provisions of an Act made in the Thirteenth Year of" part. the Reign of His present Majesty, intituled “An Act to empower the Magistrates therein mentioned to settle and regulate the Wages of Persons employed in the Silk Manufacture within their respective Jurisdictions,’ to Manufactories of Silk mixed with other Materials, and for the more effectual Punishment of Buyers and Receivers of Silk purloined and embezzled by Persons employed in the Manufacture thereof, as extend the provisions of the said act of the thirteenth of George the Third hereby repealed, to the persons therein mention- ed; also a certain other act, passed in the thirty-sixth year of King George the Third, intituled An Act to prevent unlawful Combina- 36 G.III. c. 111 tions of Workmen employed in the Paper Manufactory ; also somuch of a certain other Act passed in the thirty-ninth year of King George the Third, intituled An Act to explain and amend the Laws relative 39 G. III. c. to Colliers in that part of Great Britain called Scotland, as relates b% in Part: to the fixing and appointing of hire and wages; also an act passed in the thirty-ninth and fortieth years of King George the Third, 39 & 40 G.III. intituled An Act to repeal an Act passed in the last Session of Par- c. 106, in part. X 322 APPENT) IX. 43 G. III. c. 86. in part. liament, intituled “An Act to prevent unlawful Combinations of Workmen,” and to substitute other provisions in lieu thereof, except- ing so much thereof as relates to the adjustment of disputes between masters and workmen, as therein mentioned; also so much of a cer- tain other act passed in the forty-third year of King George the Third, intituled An Act to prevent unlawful Combinations of Workmen, Artificers, Journeymen, and Labourers, in Ireland, and for other purposes relating thereto, as makes illegal and void con- tracts, covenants, and agreements, for obtaining an advance of wages, or for lessening or altering the hours or time of working, or for de- creasing the quantity of work, or for controlling or affecting the conduct or management of any manufacture, trade, or business, and as prohibits the making or entering into or being concerned in the same, and as punishes persons for so doing, and as relates to the com- binations therein mentioned, and as relates to endeavouring by gift, persuasion, or solicitation to prevent persons hiring themselves, and as relates to attending the meetings therein mentioned, or endea- vouring to induce the attendance of others, and collecting, demand- ing, asking, or receiving money for the purposes therein mentioned, and as relates to persuading, enticing, soliciting, or endeavouring to induce others to enter into or be concerned in the combinations therein mentioned, and to paying money, making or entering into subscriptions or contributions, and to oaths and declarations, and to tickets, certificates, and tokens, and to contributions supporting and maintaining others, as therein mentioned, and as punishes persons for permitting assemblies in their houses or apartments, as therein mentioned; also a certain other act passed in the forty-seventh year 47 g. III. s. 1." King George the Third, intituled An Act to declare that the Pro- c. 43. 57 G. III. c. 122, in part. visions of an Act, made in the Parliament of Ireland in the Thirty- third Year of King Henry the Eighth, relating to Servants' Wages, shall eatend to all Counties of Cities and Counties of Towns in Ireland; also so much of a certain other act passed in the fifty-seventh year of King George the Third, intituled An Act to eartend the Provisions of an Act of the Twelfth Year of His late Majesty King George the First, and an Act of the Twenty-second Year of His late Majesty King George the Second, against Payment of Labourers in Goods or by Truck, and to secure their payment in the lawful Money of this Realm, to Labourers employed in the Collieries, or in the working and getting of Coal, in the United Kingdom of Great Britain and Ireland, and for eartending the provisions of the said Acts to Scotland and Ireland, as did extend to Scotland and Ireland any of the provisions of the acts intended to be repealed by the said APPENDIX. 323 recited act of the last Session of Parliament; and all enactments in And all acts re- any other statutes or acts which, immediately before the passing of § º: the said recited act of the last Session of Parliament, were in force workmen or throughout or in any part of the United Kingdom of Great Britain .# * and Ireland, relative to combinations to obtain an advance of wages, working, or or to lessen or alter the hours or duration of the time of working, or '...". g to decrease the quantity of work, or to regulate or controul the mode of carrying on any manufacture, trade, or business or the management thereof, or relative to combinations to lower the rate of wages, or to increase or alter the hours or duration of the time of working, or to increase the quantity of work, or to regulate or controul the mode of carrying on any manufacture, trade, or busi- ness, or the management thereof, or relative to fixing the amount of the wages of labour, or relative to the obliging workmen not hired to enter into work, and every enactment enforcing or extending the application of any of the said several enactments so repealed, shall, notwithstanding the repeal of the said recited act of the last Ses- sion of Parliament, still be and remain repealed, except only so far as the same or any of them may have repealed any former act or enactment. III. And be it further enacted, That from and after the passing Penalty on per- of this act, if any person shall by violence to the person or property, º or by threats or intimidation, or by molesting or in anyway obstruct-leave their em- ing another, force or endeavour to force any journeyman, manufac- F. º turer, workman, or other person hired or employed in any manufac- finished; or ture, trade, or business to depart from his hiring, employment, or rº work, or to return his work before the same shall be finished, or seives; prevent or endeavour to prevent any journeyman, manufacturer, workman, or other person not being hired or employed from hiring himself to, or from accepting work or employment from any person or persons; or if any person shall use or employ violence to the per- or compelling son or property of another, or threats or intimidation, or shall mo- ... º lest or in any obstruct another for the purpose of forcing or indu- y ºvve cing such person to belong to any club or association, or to contri- or to pay any bute to any common fund, or to pay any fine or penalty, or on ac-fines, for not e º e tº a tº having compli- count of his not belonging to any particular club or association, or . with orders not having contributed or having refused to contribute to any com. as to wages; mon fund, or to pay any fine or penalty, or on account of his not having complied or of his refusing to comply with any rules, orders, resolutions, or regulations made to obtain an advance or to reduce the rate of wages, or to lessen or alter the hours of working, or to decrease or alter the quantity of work, or to regulate the mode of 324 APPEN DIX. carrying on any manufacture, trade, or business, or the management or compelling thereof; or if any person shall by violence to the person or property º: of another, or by threats or intimidation, or by molesting or in any alter his mode way obstructing another, force or endeavour to force any manufac- i. jºins * turer or person carrying on any trade or business, to make any alter- ation in his mode of regulating, managing, conducting, or carrying on such manufacture, trade, or business, or to limit the number of his apprentices, or the number or description of his journeymen, Imprisonment, workmen, or servants; every person so offendin g, or aiding, abetting, ãº, a or assisting therein, being convicted thereof in manner herein-after labour for three mentioned, shall be imprisoned only, or shall and may be imprisoned months. and kept to hard labour, for any time not exceeding three calendar months. Not to affect IV. Provided always, and be it enacted, That this act shall not ... of extend to subject any persons to punishment, who shall meet to- wages to be re-gether for the sole purpose of consulting upon and determining the º rate of wages or prices, which the persons present at such meeting, employed by or any of them, shall require or demand for his or their work, or the ºn: hours or time for which he or they shall work in any manufacture, 3. trade, or business, or who shall enter into any agreement, verbal or written, among themselves, for the purpose of fixing the rate of wages or prices which the parties entering into such agreement, or any of them, shall require or demand for his or their work, or the hours of time for which he or they will work, in any manufacture, trade, or business ; and that persons so meeting for the purposes aforesaid, or entering into any such agreement as aforesaid, shall not be liable to any prosecution or penalty for so doing; any law or statute to the contrary notwithstanding. Not to affect V. Provided also, and be it further enacted, That this act shall meetings for not extend to subject any persons to punishment who shall meet to- rates of wages, e * º 3. to be jºid gether for the sole purpose of consulting upon and determining the by masters to rate of wages or prices which the persons present at such meeting, '.“” or any of them, shall pay to his or their journeymen, workmen or servants, for their work, or the hours or time of working in any man- ufacture, trade, or business, or who shall enter into any agreement, verbal or written, among themselves, for the purpose of fixing the rate of wages or prices, which the parties entering into such agree- ment, or any of them, shall pay to his or their journeymen, work- men, or servants, for their work, or the hours or time of working in any manufacture, trade, or business; and that persons so meeting for the purposes aforesaid, or entering into any such agreement as APPENDIX. 325 aforesaid, shall not be liable to any prosecution or penalty for so do- ing, any law or statute to the contrary notwithstanding. - VI. And be it further enacted, That all and every persons and Offenders com- person who shall or may offend against this act, shall and may, ºve equally with all other persons, be called upon and compelled to give his or her testimony and evidence as a witness or witnesses on be- half of his Majesty, or of the prosecutor or informer, upon any infor- mation to be made or exhibited under this act, against any other per- son or persons not being such witness or witnesses as aforesaid; and Indemnified. that in all such cases every person having given his or her testimony or evidence as aforesaid, shall be and is hereby indemnified of, from, and against any information to be laid, or prosecution to be com- menced against him or her, for having offended in the matter where- in or relative to which he, she, or they shall have given testimony or evidence as aforesaid. VII. And for the more effectually enforcing and carrying into exe-Justices may cution the provisions of this act; be it further enacted, That on com- º of- plaint and information on oath before any one or more Justice or Jus- tices of the Peace, of any offence having been committed against this act within his or their respective jurisdictions, and within six calen- dar months before such complaint or information shall be made, such Justice or Justices are hereby authorized and required to summon the berson or persons charged with being an offender or offenders against this act, to appear before any two such Justices, at a certain time or place to be specified; and if any person or persons so summoned Not appearing, shall not appear according to such summons, then such Justices, warrants may be (proof on oath having been first made before them of the due service issued. of such summons upon such person or persons by delivering the same to him or them personally, or leaving the same at his or their usual place of abode, provided the same shall be so left twenty-four hours at the least before the time which shall be appointed to attend the said Justices upon such summons) shall makeand issue their war- rant or warrants for apprehending the person or persons so summon. ed, and not appearing as aforesaid, and bringing him or them before such Justices; or it shall be lawful for such Justices, if they shall think fit, without issuing any previous summons, and instead of is- suing the same upon such complaint and information as aforesaid, to make and issue their warrant or warrants for apprehending the per- son or persons by such information charged to have offended against this act, and bringing him or them before such Justices; and upon On their ap- the person or persons complained against appearing upon such sum-Pº, " º º proof of mons, or being brought by virtue of such warrant or warrants before absconding. 326 APPENDIX, Proceedings. Justices may summon wit- 1162.SSéS. Non-appear- ance, &c. Proceedings. such Justices, or upon proof on oath of such person or persons ab- sconding, so that such warrant or warrants cannot be executed, then such Justices shall and they are hereby authorized and required forth with to make inquiry touching the matters complained of, and to examine into the same by the oath or oaths of any one or more credible person or persons as shall be requisite, and to hear and determine the matter of every such complaint ; and upon confession by the party, or proof by one or more credible witness or witnesses upon oath, to convict or acquit the party or parties against whom complaint shall have been made as aforesaid. VIII. And be it further enacted, That it shall be lawful for the Justices of the Peace before whom any such complaint and inform- ation shall be made as aforesaid, and they are hereby authorized and required, at the request in writing of any of the parties, to issue his or their summons to any witness or witnesses to appear and give evidence before such Justices, at the time and place appointed for hearing and determining such complaint, and which time and place shall be specified in such summons; and if any person or persons so summoned to appear as a witness or witnesses as aforesaid, shall not appear before such Justices, at the time and place specified in such summons, or offer some reasonable excuse for the default, or appear- ing according to such summons, shall not submit to be examined as a witness or witnesses, and give his or their evidence before such Justices, touching the matter of such complaint, then and in every such case it shall be lawful for such Justices, and they are hereby authorized (proof on oath, in the case of any person not ap- pearing according to such summons, having been first made before such Justices of the Peace, of the due service of such summons on every such person by delivering the same to him or her, or by leaving the same twenty-four hours before the time appointed for such per- son to appear before such Justices, at the usual place of abode of such person), by warrant under the hands of such Justices, to commit such person or persons so making default in appearing, or appearing Form of convic- tions and com- mitments, set forth in schedule an- nexed. and refusing to give evidence, to some prison within the jurisdiction of such Justices, there to remain without bail or mainprize, for three calendar months, or until such person or persons shall submit to be examined and give evidence before such Justices as aforesaid. IX. And be it further enacted, That the Justices before whom any person or persons shall be convicted of any offence against this act, or by whom any person shall be committed to prison for not appearing as a witness, or not submitting to be examined, shall cause all such convictions and the warrants or orders for such com- APPEND IX. 327 mitments, to be drawn up in the form or to the effect set forth in the schedule to this act annexed. X. And be it further enacted, That the Justices before whom Convictions to any such conviction shall be had, shall cause the same (drawn up in . * the form or to the effect herein-before directed) to be fairly written General or on parchment, and transmitted to the next General Sessions or Gene- ...i. d. ral Quarter Sessions of the Peace to be holden for the county, rid- ing, division, city, liberty, town, or place wherein such conviction was had, to be filed amongst the records of the said General Ses- sions or General Quarter Sessions; and in case any person or persons shall appeal, in manner herein-after mentioned, from the judgment of the said Justices to the said General Sessions or General Quarter Sessions, the Justices in such General Sessions or General Quarter Sessions are hereby required, upon receving such conviction, to pro- ceed to the hearing and determination of the matter of the said ap- peal, according to the directions of this act. XI. Provided always, and be it enacted, That in Scotland all Proceed against prosecutions under this act may be insisted on at the instance of *... d. the Public Prosecutor, and may be judged of, either by two Jus- tices of the Peace, or by the Sheriff of the county within which the offence may have been committed. \ XII. Provided always, and be it further enacted, That if any Persons think- person convicted of any offence or offences punishable by this act, º º: shall think himself or herself aggrieved by the judgment of such Jus- appeal to the tices, before whom he or she shall have been convicted, such person gº sº. shall have liberty to appeal from every such conviction to the next sions. Court of General Sessions or General Quarter Sessions of the Peace which shall be held for the county, riding, division, city, liberty, town, or place wherein such offence was committed ; and that the execution of every judgment so appealed from shall be suspended, in case the person so convicted shall immediately enter into recog- nizances before such Justices (which they are hereby authorized and required to take) himself in the penal sum of ten pounds, with two sufficient sureties in the penal sum of ten pounds of lawful money of Great Britain, upon condition to prosecute such appeal with effect, and to be forthcoming to abide the judgment and de- termination of the said next General Sessions or General Quarter Sessions, and to pay such costs as the said Court shall award on such occasion; and the Justices in the said next Court of General Sessions or General Quarter Sessions are hereby authorized and re- quired to hear and determine the matter of the said appeal, and to award such costs as to them shall appear just and reasonable, to be 328 APPEND IX, No Master to act as Justice. paid by either party, which decision shall be final; and if upon hearing the said appeal, the judgment of the Justices before whom the appellant shall have been convicted shall be affirmed, such ap- pellant shall immediately be committed by the said Court to the common gaol or house of correction, without bail or mainprize, ac- cording to such conviction, and for the space of time therein men- tioned. - - XIII. Provided also, and be it further enacted, That no Justice of the Peace, being also a master in the particular trade or manu- facture, in or concerning which any offence is charged to have been committed under this act, shall act as such Justice under this act. SCHED U LE TO WIHICH THIS ACT REFERS. Form of Conviction and Commitment. 13e it remembered, That on the day of in the year of his Majesty's reign, and in the year of our LORD A. B. is convicted before us [naming the Justices] two of his Maiesty's Justices of the Peace for the county [or riding, di- vision, city, liberty, town, or place] of of having [stat- ing the offence] contrary to the act made in the sixth year of the reign of King George the Fourth, intituled An Act [here set forth the title of this actl; and we the said Justices do hereby order and ad- judge the said A. B. for the said offence to be committed to and con- fined in the common gaol for the said county, [or riding, division, city, liberty, town, or place] for the space of Or to be committed to the house of correction at within the said county, [or riding, division, city, liberty, town, or place] there to be kept to hard labour for the space of Given under our hands, the day and year above written. Form of Commitment of a Person summoned as a Witness. Whereas C. D. hath been duly summoned to appear and give evidence before us [naming the Justices who issued the summons] two of his Majesty's Justices of the Peace for the county [or riding, division, city, liberty, town, or place] of on this day of at being the time and place appoint- ed for hearing and determining the complaint made by [the infor- mer or prosecutor] before us, against A. B. of having [stating the offence as laid in the information] contrary to the act made in the sixth year of the reign of King George the Fourth, intituled An Act [here insert the title of this act]: And whereas the said C. D. APPENDIX. 329 hath not appeared before us, at the time and place aforesaid, speci- fied for that purpose, or offered any reasonable excuse for his [or her] default, [or And whereas the said C. D. having appeared be- fore us, at the time and place aforesaid, specified for that purpose, hath not submitted to be examined as a witness, and give his [or her] evidence before us touching the matter of the said complaint, but hath refused so to dol; therefore we, the said Justices, do here- by in pursuance of the said statute commit the said C. D. to the [describing the prison] there to remain without bail or mainprize, for his [or her] contempt aforesaid, for three calendar months, or until he [or she] shall submit himself [or herself] to be examined, and give his [or her] evidence before us, touching the matter of the said complaint, or shall otherwise be discharged by due course of law : And you the [constable or other peace officer or officers to whom the warrant is directed] are hereby authorized and required to take into your custody the body of the said C. D. and him [or her] safely to convey to the said prison, and him [or her] there to de- liver to the gaoler or keeper thereof, who is hereby authorized and required to receive into his custody the body of the said C. D. and him [or her] safely to detain and keep, pursuant to this commit- ment. Given under our hands, this day of in the year of our LORD. [This Commitment to be directed to the proper peace officer, and the gaoler or keeper of the prison.] I N D E X. The figures refer to the paragraphs. Ability, want of, to fulfil contract, 266. Dismissal for want of, a question of evidence, 266. When want of, not a ground of dismissal, 266. Absence, how far unlawful, 206. How far lawful, 207. Occasional, in work- men how punished, 231. Accounting, servant must account, 383. When servant presumed to have ac- counted, 556, 557. Action for wages, 400, 401, 402, 403, 404, 413, 414. Requisites to be ob- served in bringing, 407, 412. De- fences to, 214, 222, 408, 409 410. Remedies for recovery under, 411, 415. See Death of Master, Work- 712872, Acts of Parliament. See Table of Con- tentS. Aliens, 9, 791. Angry words not a sufficient cause for leaving service, 269. Apprentices must follow master for in- struction, 796. May leave employer if not taught his business, 759, 803. Liable to statute labour, 871. Arles not necessary to complete verbal contract, 31, 876. May be taken as evidence of a contract, 32, 33. Effect of returning or forfeiting, 33, 34, Effect of local custom in giving, 35, 36. Not viewed as a gratuity, 37, 876. Accepting of, from a plurality of mas- ters, fraud, 38. Not given to me- chanics, 39. Arrestment of wages, clothes, and tools, 538 to 547, 870. Assault by a master on a female servant with intent &c., 283 ; by an inmate on a female servant, 282; by a ser- vant on a master, 292—on a fellow- servant, 292. May be punished civilly or criminally, 284, 285. Assigning indenture, 724, 736 to 741. Attendants on lunatics (tax) 480. Batchelor's tax for servants, 482. Bankruptcy of master, preference of domestic servants for wages, 387. Of rural servants. See Hypothec, Of artizans or mechanics, 392, 447, 448. Of clerks, &c. 425, 426. English law in case of, 427. Behaviour of master, 200, 253. servant, 253 to 256. Bill endorsed for wages, constitutes ser- vant an onerous indorsee, 377. Birley herd, contract, duration, wages, 865. Board or board wages, 363, 366 ; to a servant under sickness, 338, 339, 340. Boots of an inn, duration of contract, duties and liabilities, 320. Tax for, 483. Breaker of colts, tax for, 481. Butler, obligations on a, 270. Of Canal Company, tax for servant, 484. Cattle, cruelty to, 296. - Casual homicide, 304. Cautioners for apprentice, 841, 842, 845, 846, 851, 852. Master's notice to, on desertion of apprentice, 849. When, may be proceeded against, 851, 852. In a dispute with master, not bound to find new caution, 853. When, relieved by master's conduct, 843, 844, 850. Claim against the apprentice, 847, 848. Character of a servant, when master privileged to speak of the, 678 to 681, 700. How he ought to reveal, 682. False statements not privileged, 701. If, be bad, no damages are due, 683, 684. Improper procuring of, to found an action, 685. Misrepresent- ing the, 686, 691, 692. Master not bound to give, 687. Consequence of giving, unasked, 688, 689. Master may write on a certificate of, 690. Master presumed to have inquired for, 699. Where malice not infer- red in charging a servant with fraud, 693. Malieious statements against, 694. Whether statements resting on probable grounds actionable, 695. Where parties jointly charged with defamation by servant, 696. No damages due, if acts of conduct assign- 332 IN DEX. ed to the master be true, 697. Effect of slanderous words spoken of a ser- vant, 698. Master liable for imputa- tions against servant's honesty, 702, 684. Against servant's chastity, 702. Mutual slander, 703. Vitiating cer- tificates of, 691, 692. Chambermaids, duration of contract, 321. Chances to waiter of an inn, 319. To Boots, 320. To a chambermaid, 321. How far actionable, 322. To an ostler, 323. To a post boy, 324, 867. To a guard and driver of stage- coaches, 325, 868. To a guard and driver of mail, 326, 868. Chastisement, master cannot inflict bod- ily, 201, 203, 797. Effect of threat- ened, 202, 799. Effect of provoca- tion, 798. What conduct might jus- tify, 229. Chimney Sweepers, 854 to 863. also Table of Contents. Clerks, &c. salary fixed by contract or us- age, 416. In what cases, salary not due, 151, 417-18, 422. Interest on sa- lary, fixed and unfixed, 370, 424. Sa- lary paid quarterly implies to receive quarterly, 424. Entitled to full sal- ary, when improperly dismissed, 235. When engaged for a series of years, how damages estimated for dismissal, 236, 425. Not entitled to increased salary for increased labour, 419 ; but entitled if labour differs materially from contract, 420. Master's con- duct to, 237. His grounds for dis- See trade, in case of dispute with master, 241. Clubs, tax for servants, 486. Coachmen, tax for, 487. Combinations, assaults for the purpose of combining, 665. Proceedings be- fore Justices, 666. Statutory rules, 667 to 677. See Table of Contents, for Statute. Companies, contracts with, 60. against, for wages, 406. Complaints, captions by servants, 255. By masters against apprentices, 816 to 824. By apprentices against mas- ters, 806 to 815. Composition, (taxes,) 489. Concealing fellow-servant's dishonesty, 279. Facts to increase master's be- quest, 521. Conductors, tax for, 488. Contracts, verbal. Object of, of ser- vice, 16, 17, 305, 429. How com- pleted, 18, 19, 20. How proved, 44, 45. In conditional, the conditions must be fulfilled, before contract com- pleted, 22. How an offer of service by a master falls, 21, 26. Time within which offer must be accepted, 27. Entering on contract, 195, 242.” Duration of, 40, 41, 42. 43. When, terminated, 132, 158, 159, 422. When held to have been renewed, 134, 135. Contracts, written. Duration of, 49, 57, 81, 82. How constituted, 49, 50, 51. Stamp not requisite, 53. Subscription to, 52, 70, 71, 72, 73. Action missing, 238, 239, 317. Usage of 74, 75, 76, 77. Duplicates of 78, 79, —º- * The other day a case occurred before the Sheriff of Lanarkshire, relative to the time at which hired servants are bound to commence their service. By agree- ment, the servant was to have entered to his duties on a Thursday, but he did not go to his master's house till midnight of the Friday following, when the mas- ter, who was a farmer, refused admittance. The servant offered back his arles money, but had it not then upon him. Next day he went with witnesses to offer his services, but they were rejected, and he raised an action against his master for wages and board. In his pleadings, he contended that it was customary for ser- wants to be allowed two or three days after leaving one service before they joined another. The Sheriff Substitute, after hearing evidence on both sides, dismissed the case, and found the servant liable in expenses. That decision was appealed to the Sheriff Depute, who affirmed the judgment, and appended to his approval the following note:–“ The Sheriff thinks that perhaps the defender in the pre- sent case might, without much impropriety, have taken the pursuer into his place when he came there, on the Friday night, instead of the Thursday, but he cannot say that he was bound in law to have done so. In the location of personal service, as in all other contracts, each party must be ready at the stipulated time; and if the servant is not so, and can state no valid excuse for being absent, especially for so long a period as 24 hours, the master is entitled to consider the contract as at an end, and to hire another servant in his place. The alleged practice of the masters giving their servants two or three days' absence between the leaving of one place and the taking of another, is disproved in the present case, and has no foundation whatever either in law or expedience.”—September, 1840, INDEX. 333 80. Incomplete, 54, 55. Incomplete cannot be proved, 56. Rei interventus, perfects an incomplete, 58, 59. Con- ditions of parties, 61, 62, 63, 64. Interpretation of, 65, 66, 67, 68, 69. Terms of payment under, may be altered by a verbal agreement, 409. Cozened, master may sue where ser- vant, 223. Culpable homicide, 303. Damages for a false accusation of theft, 278. When wages claimed for dismissal, a subsequent claim for, barred, 222. See Character, — Dis- missal. Death of Master, how it affects wages, and contract of domestic servants, 393, 394, 395, 397. How that of apprentices, 764, 770; of rural ser- vants, 396. Wages due, preferable on his executry, 398; may be paid be- fore confirmation, 398; may be paid on a simple receipt, 398. Arrears of wages not preferable, 399; of wages against whom chargeable, 405. Death of Servant, to what period wages are due, 331, 348. How funeral charges defrayed, 349, 350. Move- able property, how disposable, 348, 351, 352. Debauchery in a man-servant, 282. Desertion, procedure for, under the common law against servants, 611 to 629. Procedure for, under the sta- tute law, 630 to 663. Remarks on the present law for, 664. Procedure against apprentices at common law, 825 to 830; on the statute law, 831 to 840. Forcing workmen to desert, 182, 183. See Table of Contents, for the several Statutes, and Styles for procedure. - Detain, servants right to, master's pro- perty for wages, 273. Discharge of an indenture by consent, 742 to 746; by a magistrate, 747 to 750 ; by circumstances, 751 to 762. Where master dies, or retires from business, 769, 770. Dishonesty in a servant, 271. Conceal- ing, in a fellow-servant, 279. Disobedience of servant, 262. ed disobedience, 869. Dismissal, what required of a master before exercising power of, 209, 210, 234, 804. Where master may order, 206, 207, 208, 21 J, 230, 265, 306. Master not bound to give his reasons at the time of, 212, 294; but must do so in court, 214. Effect of an offering back of service after, 213. Effect of a judicial offer to take back Suppos- servant after, 220. Master's power of, by agreement, 22 l ; on paying wages and board, 221. “ - Disputes respecting work performed, 449 to 472. See Table of Contents, for the arbitration Statutes. Domestic Servants, taxes for, 490. Donation, a, promised besides wages held to be renewed by tacit reloca- tion, 371, 519. Dresses, &c. given by a master to a female servant, how viewed, 106, 374, 519. Lriving, wanton and furious, 298. Statutory rules for, 299, 300, 301, 302. Eaves-dropping in a servant, 288. How punished, 288, 289. Effect of en- couraging servants to reveal family matters, 290. Enlistment of servant, how contract af- fected by, 247; how wages, 247, 378. Of apprentice, 780 to 789, 851. Evidence of servants, effect thereof on behalf of masters and fellow-servants, 327, 328, 329, 330. Ea'emption, effect of not claiming, of tax for a servant, 491. Gambling away wages, a statutory of. fence, 315. Gamekeepers, tax payable for, 492. Gardeners, duration of contract, I 15. Preference for wages, 385, 390. Tax for, 493. Governesses, contract, duration and obli- gations on, 706, 707, 709, 710, 711. Obligations on employers, 707, 708. Grooms, tax payable for, 494. Guards and drivers of mail and stage coaches, contract, duration, duties, 325, 326, 868. Fraud, servants of malsters maliciously committing fraud in the process of malting, may, under the 8 Geo. IV. c. 52, s. 46, and 1 Vict. c. 49, s. 7. be summarily apprehended and impri- soned by a Justice, for a period not exceeding three months, on the evi- dence of one witness. Servants of distillers are not so punished; the penalty of their frauds fall on the master, who may be ignorant at the time of the servant's infraction of the excise laws. Distillers ought in jus- tice to have a similar protection. In a servant, 270, 274,521-38, Helpers, tax payable for, 495. Holidays, meaning of, 130. Homicide, casual, 304. Culpable, 303, 334 INDEX. Horse-dealers, tax payable by, for ser- vants, 496. Hospitals, tax payable for servants, 497. Hours of Work of household servants, 123; of farm and rural servants, 124, 125 ; in manufactories, 126; in mer- cantile business, 127; of tradesmen, 128. Power of masters, and of work- men to fix their, 128—on days of amusement and festivity, 131. *- Płousebreaking, what constitutes, against a servant, 276. - JHousehold duties, workmen or appren- tices not obliged to perform, 227. House and office porters, tax for, 498. Huntsmen, tax for, 500. Flypothec, wages of rural servants pre- ferable to landlords, 388, 389, 390 ; of domestic servants not preferable, 385 ; of artizans, &c. not preferable, 392. See Gardeners. Illegal contract cannot be founded on in a case of wages, after servant waive all objection to it, 410. Illicit intercourse, bond to a female ser- vant to enter into an, not actionable, 523. Effect of bond, where execu- tion has followed on it, 524. Bond as a compensation for past injury done, actionable, 525, 526. Effect of bond made payable to the innocent issue of an, 527. Reasons that weigh in fix- ing paternity, in cases of filiation, 528. Effect of the English law, in a case for aliment to a child, 872. Ammoral conduct, effect of, in a servant previous to being hired, 286, 699 ; after being hired, 286, 287. Imprisonment of servant, on a charge for crime, does not dissolve contract, 141 ; nor for misconduct, 313. To procure, to defeat contract, actiona- ble, 196. For debt, 293. Improper dismissal, servant's claim, and how wages and board payable, 195, 217, 218, 219, 234, 407, 408. Indenture, period for entering on an, 712. Nature of an, 716, 717, 640. Consent to an, 713. Effect of im- posing on apprentice in an, 714, 715. Fraudulent, 721, 744. That it did not exist, in general not prov- able by parole evidence, 729, 730. When an, may be presumed to have existed, 730. Inciting a servant to steal, 277. Insolence by a servant, 267; when jus- tifiable, 268. Insolvency of master, how it affects ser- vant's claim for wages, 385, 386. Instructions, liability of servant depart- ing from, 256. Obeying unlawful, 257, 258, 260. Intemperance in a servant, 280 Interest on wages fixed and unfixed, 370. Inventions by servants, 188; when not, 189, 190. Penalty on servants re- vealing progress of, 192. Classes of inventors, 191. Legacies to a niece, 107; to servants, how interpreted, 520; when ob- tained by fraud, 521. Liability of master for servant, 601, 584, 585, 586, 587, 588, 591, 592, 593, 595, 596, 597. When master not liable, 589, 590, 594, 597, 598, 599, 600, 602, 603, 604. Of servant, 605, 606, 261, 603, 610. Where he is not liable, 607, 608. Licence, want of, to carry on trade, discharges indenture, 794. Not so, with the legal profession, 795. Livery, 507; where part of wages, 508; where no part of wages, 509. Ser- want cannot exchange, for plain clothes, 510. Master not liable for plain clothes furnished in place of, 511, 512. When master not liable to his merchant for livery arms and lace, after ceasing to deal, 513. Married woman not liable for the price of, 512. Mournings to domes- tic servants, a gift, 513. Wearing apparel of servants cannot be detain- ed, 514. Malicious reports by servants, 289. Action against circulators, 290. A- buse of master's property, 295, 314; of cattle, 296. Breaking of ploughs, &c. in tilth time, 297. Mandate to hire servants, binds the master, 23, 24, 25. Where contract is fixed, no general evidence is com- petent, to shew the practice of the agent, to hire servants, 241. To transact business for master, 560. Duties of the mandatory, 561 to 565. A general, 579. A special, 580, 581, 582. An expressed, 566, 567, 578. An implied, 568, 569, 571, 572, 573, 577. Where, is not implied, 569, 570, 574, 576. How an implied, to furnish is terminated, 575. Prapo- situra in negotiis domesticis, 583. Marriage of a female servant, 246, 762; a male apprentice, 762. Damages due for breach of contract of service, by, 246. Married women, when they may con- tract, 6, 7 ; when they cannot, 8. Cannot be sued for wages, or fur- nishings, 404, 514, 583. INDEX, 335 Master's interest in the contract of ser- vice, 165, 166, 172, 177. Action will lie against servant leaving, or party enticing him away, or detain- ing him, 166, 167, 169, 170, 181, 778, 779. Intimation before action, 176. No defence for enticer, that servant’s contract is defective, 173. Where sustained, 171. Action will lie for beating servant, 168; but not for enticing servant to leave at end of contract, 174. Statutes relative to seducing artificers to emigrate repealed, 175. Extent of damages given by Juries, 177, 178, 181. Damages may be fixed by the contract, 179, 180. Statutory penalties forcing workmen to desert, 182, 183. - Medicine and medical attendance for servants under ordinary sickness, 341, 376 ; under sickness, through per- formance of duty, 347. Militia, when servant ballotted—how contract and wages affected, 379. Minister's-man ranks as a domestic ser- vant, 391 ; tax for, 500. Miscellaneous employment, tax payable therefor, 50l. Misconduct in workmen, how punished, 311. Instances of, 312. In an ap- prentice, 805, 816 to 824, 877. In donaestic servants, 225. Narcotic or deleterious drugs, punish- ment for administrating, 291. National fasts, claim for wages on that day, 437. Negligence of servant, 265. Nurses, and nursery maids, 878. Obligations on master, 194 to 241 ; to teach apprentice, 792, 793; on ser- vants, 242 to 326. Obligations against domestic policy, 522. Ob turpem causam, 523 to 527. Occasional servants, tax payable for, 502. Officers, army, navy, &c. tax for wants, 503. Ostler, duration of contract, 323. payable for, 504. Out-door and in-door apprentices, to 776. ' Self- Tax 771 Periods of service, domestic servants, Scotch rule, 110, 111 ; English rule, 112. Rural servants, 113, 114. Gar- deners, 1 15. Artizans, handicrafts- men, l 16, 1 17. Labourers, I 18. Clerks, shop and warehousemen, l 19, 120, 121. Skilled labour, 122. Parquisites, 517. Persons who may contract.—Pupils, with consent, 2. Minors, 1. Who have attained majority, 3. Deaf and Dumb, 4. Blind, 5, 77. Married women, 6, 7, 8. Aliens, 9. Persons who cannot contract.—Pupils, 10. Idiots and imbeciles, 11. Party under a current engagement, 12, 13. Persons affected with delirium tre- mens, drunkenness, 14. Outlaws, 15. Possession of master's moveables by Ser- vant no transfer, 272, 609. Post-boys, duration of contract and du- ties, 324, 867. Pregnancy warrants dismissal, currente termino, 281. Premium or apprentice fee, 718. Ef- fect of not inserting the premium in indenture, 720; assignment of in- denture, 724. Return of, 763—768. Profane swearing on part of masters, 799. Provisions, servants entertaining rela- tions with, 208. Giving away to va- grants, contrary to orders, 263. Wil- ful or negligent waste of, 264. Pupils may sue for payment of wages, 402, 403. Recession of a contract of apprentice- ship, 732. Refusal of servant to enter service, 46, 47, 48, 83, 84, 85, 242. Of master to accept service, 196, 226. Register for indentures, 731. Rei interventus, effect of, 58, 59, 728. Relations, &c. service by children, 86 to 95; by grandchildren, 550, 551 ; illegitimate children, 96, 97 ; adopted children, 98 ; orphans, 99; brothers and sisters, 100, 101, 102, 103; aunt, 104 ; nieces, 105, 106, 107, 550 ; relations generally, 108, 866; friends, 109. Removal of servants from free possessions, 139, 164, 316. Where servants die or misbehave, 160, 161. Where sum- mary removal not competent, 162. Damages for disturbing servant's pos- session, 163. Residence, power of master to fix ser- vant's, out of family, 205. Change of master's, 249; to domestic servants, 250 ; to personal attendants, 251 ; to agricultural servants, 252. Restriction in taking apprentices, 790. Retention, servant's, for wages, 529 to 537. Revealing secrets of master's business, penalty on servant, 186. Action against party seducing servant to re- weal, 184, 185. Using improper means to obtain secrets of master, I S7. 336. INDEX. | f Risk, how it affects masters and servants, 473 to 477. Robbery by servants, 275. Sacramental Fasts, to labour on, 232, Wages seem not due for, 437. Servant, duties of, restricted to con- tract, 197; of a domestic, 198; of an agricultural, 199; must fulfil con- tract, 244. Sickness, ordinary, effect of, on duration of contract, 248, 355, 356. How far it affects claim for wages, 331, 332, 346, 354, 357, 359, 360, 361. Where sickness, concealed prior to entering service, 334. Where it arises from gross negligence, 335. Where it arises from gross immorality, 336. Where it is brought on through performance of duty, 333, 345, 346, 353, 358. Power of master over servant under, 342. Indulgence to a servant after, 343, 344. Feigned sickness, 337. Stamp for indenture, 719, 722, 723, 725. When indenture may be stamped, 720, 726. When it cannot, 727. When unnecessary, 733 to 735. Statute labour, 871. Strength, to compel labour beyond, 204. Substitute, masters not bound to accept of a, 243. Sunday, contracts entered into on, 28. Hiring of shearers on, 29. Servant's privilege of getting out on, 875, 262. Service on, 129. - Sustenance, refusal of, to servant, 196, 340. -: , ‘ Swindling on part of servant, 274. Tools, &c. statutes anent smuggling, out of the kingdom, 193. Trainer of race horses, tax payable for, 505. Travellers for mercantile houses, con- tract, 424. . Travelling expenses to domestic ser- wants, 194. - Triennial prescription, of wages, 548 to 555. Does not apply where servant has not accounted, 559. Theft, ground of dismissal, 271, 800, 801. False accusation of, 278, 802. Tutors, contract duration, obligation, 704 to 711. Undue influence of servants, 521. Unlawful acts of servants, liability for, 257, 258, 259, 260, 261. Usage of trade, how far part of con- tract, 864, 68, 126. Wages, meaning of, 362, 363. Where, not due, 364, 365, 417, 418. Period when, paid, 368, 369, 436. How payment of, ought to be made, 372, 373. Improper payment of, 374,375. Improper deductions from, 380, 381, 384. When forfeited, 215. When partly forfeited, 216, 233. How pay- able where dismissal improper, 217, 218, 219, 407, 408. Where ad- ditional, not due, 367. Where due, 420. May be detained, till property entrusted to servant be accounted for, 383. How far, can be affected by a contract of risk, 382. How, may be recovered, 400, 401. See Workmen, Disputes, Death, Action, Risk. Waiter, power of head, in a hotel, 224, 319. Duration of contract, 319. Liability to master, 319. Tax, 506. Presumed accounting, 556, 558, Warning to servants generally, 133; to domestic servants, 134, 135, 140, 141. Evidence of, 137, 138. To clerks and shop assistants, 149, 150, 153. Value of local usage, in giving, 142. Value of usage of trade, 145, 146, 147, 148. Warning fixed by agreement, 152, 154, 155, 156, 157. Indulgence, when warning given, 136, 143, 144. Penalty of leaving service without warning, I 14, 146, 151. To quit free possessions, 139, 164, 362, 364, 366. Wilful burning of houses, &c. 873. To attempt fire-raising, 874. Workmen, work contracted for by, must be adhered to, 227, 439. Effect of serving another in same trade, 307. May do trifling jobs, 308. Cannot refuse to go to country jobs, 309. May refuse, if contract to serve in a certain locality, 310. Justices have no power to fix wages, 428. May work for what wages they choose, 429. Must be paid wages in the current coin of the realm, 430. Ille- gal to pay them in goods, 431. What may be deducted of consent from wages, 432, 433. Meaning of artifi- cers, employers, wages, contracts, under I and 2 Wm. IV. c. 37, 434. Penalties evading that statute, 435. Presumed to be paid wages weekly, 436. Claim for wages on sacramen- tal and national fasts, 437. Overseer not personally responsible for wages, 412,438. Fixed weekly wages, can- not be changed by the master, so as to pay by the piece, 440. Wages paid in one' town, cannot be governed by what is paid in another, 441. How their wages recoverable, 442 to 446. Wages how far arrestable, 539, 870. JAMES BURNET, Printer, East Thistle Street Lane. THE UNIversity of Michigan GRADUATE LIBRARY DATE DUE UNIVERSITY OF MICHIGAN DD NOT REMOVE []R MUTILATE CARD §: * * * **, 3- ºg … tº fºr: :*** f. §: ºº::::::::::: º: § * 3. †. ** *: