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( 2 ) THE LAW OF MASTER AND SERYANT: BEING A TEEATISE ON THE LAW EELATING TO CONTRACTS OF SEBVICE, APPRENTICESHIP, AND EMPLOYMENT. Part L— COMMON LAW. Part II.— STATUTE LAW. BY Sm JOHN MACDONELL, M.A., LL.D., C.B., ONE OF THE MASTERS OF THE SUPREME COURT OF JUDICATURE. SECOND EDITION BY EDWARD A. MITCHELL INNES, M.A. Oxon., ONE OF HIS majesty's COUNSEL. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCEET LANE, X908. PREFACE The first edition of this book appeared in 188^i. Since that time that portion of the law with which it deals has undergone many changes, which are themselves the outcome and reflection of other changes, social, political and industrial. Sub-division of labour has increased ; the combined operations of labour, and with them the relations of employer and employed, have grown more complex ; organization has made Labour both conscious of its power and articulate in its demands. The result has been to alter considerably both the volume and character of industrial legislation. Even a cursory consideration of the statutes printed in Part II. of this book will sliow the growth of legislative control over the conditions of employment, and of State inter- ference in questions connected with the relations of employer and employed. Pei'haps one of the most interesting and significant instances of this tendency will be found in the application of the civil law of conspiracy to trade disputes. This question, which has been the subject of many recent cases, seemed to have been put on a firm basis by the decision of the House of Lords in Quinn v. Leathern. That decision stood for five years. In 1906 there was a 2 IV PREFACE. passed a statute, known as the Trade Disputes Act, 1906, by virtue of wliicli the civil law of conspiracy, as laid down in Quinn v. Leathern^ has no application to acts done in contemplation or fuitherancc of a " trade dispute" as therein defined. But this Act goes further. It had been decided in Taff Vale Rail. Co. v. Amalgamated Society of Raihoay Servants that a trade union could be sued and its funds be made answerable, in a properly constituted action, for the torts of its agents. The Trade Disputes Act, 1906, annuls this decision by prohibiting actions of tort against trade unions. I have tried to consult especially the interests of the lawyer who has not ready access to a law library. With that object in view, there have been printed, at the risk of unwieldiness, all the rules, forms and orders under such statutes as the Employers and Workmen Act, 1875, the Employers' Liability Act, 1880, and the Workmen's Compensation Act, 1906. Unfortunately — and this fact accounts to a large extent for the delay in the appearance of this edition — Sir John Macdonell has been prevented by the claims of other work from taking part, as he had hoped, in the preparation of the present edition. He wrote the first chapter ; his ncjtes of decisions and changes in the law have been of very great assistance ; while his suggestions and his supervision, particularly in connection with the Chapters on Trade Unions and the Truck Acts, have been most valuable. In any case, the authority of his name, and the knowledge that he has interested himself PREFACE. V 111 the preparation of this edition, must greatly add to whatever value it may possess. The index has been entirely re-written, it is hoped with good result. I am indebted to the industry and experience of Mr. Sydnky Edward Williams, of 4, New Square, Lincoln's Inn, for the Table of Cases and the Table of Statutes. I desire gratefully to acknowledge the great assistance given to me by Mr. Kenneth Marshall and Mr. M. P. Griffith-Jones, both of Farrar's Building, Temple, in the reading and correction of the proofs — a task in which other friends have kindly borne a part. EDWARD A. MrrCHELL INNES. Fabrar's Building, Temple. September, 1908. Vll TABLE OF CONTENTS. PAGE Preface ^ Table of Cases . ^^ Table of Statutes ^^^^ Part I. COMMON LAW. Chap. I. Varieties of Labour and Contracts kelating thereto 1 II. Definition of Master and Servant 7 III. Master and Servant and Master and Slave 27 IV. Hiring and Service and similar Contracts 32 Appendix A. Distinction between Servant and Apprentice "1" Appendix B. Occupation, whether as Tenant or not.. 47 C. Partner or not Partner 51 ,, 1). Possession by Servant 54 V. Parties to the Contract 57 VI. Formalities of the Contract 81 VII. Stamps ■. ^^ VIII. The Consideration 92 Appendix. Cases on Mutuality 106 IX. Wages and Eemuneration 109 Appendix. Bankruptcy and Winding-up 133 X. Duration of the Contract and Notice 135 Appendix. Yearly or not Yearly Hiring 141 Vlll TAHLK OF CONTENTS. PAGE Chap. XI. Master's Duty to Indemnify 144 XII. Master's Duty to provide Sustenance 147 XIII. Master's Duty to teach Apprentice 149 XIV. Master's Duty in regakd to Servant's Character. . 152 XV. Measure of Damages 157 XVT. Specific Performance 1 fi2 XVII. Lien 166 XVIII. Duties of Servants 170 Appendix on Grounds for Dismissing- a Servant. . . . 191 XrX. Eights of the Parties against Third Persons .... 193 Appendix. Cases on Seduction and Loss of Service. 203 XX. Dissolution of the Contract of Hiring and Service 205 XXI. Assignment of Personal Contracts 213 XXII. Servant's Authority as to Contracts 215 Appendix. Cases on Servant's Authority as to Contracts 220 XXIII. Servant's Liability to Third Persons 223 XXIV. Civil Liability of a Master to Third Persons for THE Acts or Defaults of his Servants 231 Appendix A. Note on the History of a Master's Liability for his Servant's Torts 263 Appendix B. Master's Civil Liability for Acts or Defaults of Servant 267 XXV. Criminal Liability of Master for the Acts of his Servant 273 XXVI. Master's Liability to Servants 279 Appendix A. Origin of Doctrine of Common Em- ployment 306 Appendix B. Chief Cases as to (1) Common Em- ployment ; (2) Jklaster's Duty in regard to Machinery, Premises and Plant 307 TABLE OF CONTENTS. IX Part II. STATUTE LAW. PAGE Chap. I. Sunday Observance 311 II. The Embezzlement Acts 314 III. Servants' Chakactehs 328 IV. The Truck Acts 331 V. Acts relating to Chimney Sweepers 354 VI. Labour in Mines 363 VII. Agricultural Gangs 437 VIII. Employment of Children 440 IX. Education of Children in Employment 450 X. Conciliation Act, 1 896 459 XI. Factory and Workshop Act, 1901, etc 461 XII. Trade Unions 569 XIII. Employers and Workmen Act, 1875 611 XIV. Statutory Liability of Employers 625 INDEX 867 XI TABLE OF CASES. PAGE A. V. B. (1853), 16 D. 2G9 171 Abbott V. Bates (1874), 43 L. J. C. P. ISO ; 45 L. J. C. P. 117 ; 33 L. T. 491 ; 24 W. R. 101 85, 147 Abbott V. Macfie (1863), 2 H. & C. 744 ; 33 L. J. Ex. 177 ; 12 W. R. 315 .... 304 Abraham v. Bullock (1901), 86 L. T. 796 19, 244, 270 Abraham v. Pteyiiolds (1866), 5 H. & N. 143 ; 8 W. R. 181 ; 6 Jur. N. S. 53. . 20, 282, 283, 285, 287, 308 Abrahams v. Deakin, (1891) 1 Q. B. 51G ; 60 L. J. Q. B. 238; 63 L. T. 690 ; 39 W. R. 182 239, 246, 269 Abram Coal Co. v. Southern, (1903) A. C. 306 ; 72 L. J. K. B. 691 ; 89 L. T. 103 109, 133, 683 Abrath v. N. E. Rail. Co. (1886), 11 A. C. 247 ; 55 L. J. Q. B. 457 ; 55 L. T. 63 ; 32 W. R. 50; 2 T. L. R. 416 235, 270 Acey V. Fernie (1840), 7 M. & W. 151 ; 10 L. J. Ex. 9 ; 56 R. R. 671 221 Adam v. British and Foreign, &c., (1898) 2 Q. B. 430 ; 67 L. J. Q. B. 844 ; 79 L. T. 31 646 Adams v. Ford (1885), 16 Q. B. D. 239 ; 55 L. J. Q. B. 13 ; 53 L. T. 666 ; 34 W. R. 64; 49 J. P. 711 42 Adams v. Nightingale (1882), 72 L. T. News. 424 640 Adamson v. Jarvis (1827), 4 Biug. 66 ; 5 L. J. C. P. 68 145 Addams v. Cai-ter (1862), 6 L. T. 130 189 Advocate-General v. Grant (1853), 15 T. 980 275 Agincourt, The (1824), 1 Hag. 271 31 Albro V. Jaquith (1855), 4 Gray's Rep. (Mass.) 99 227 Aldridge, Ex parte (1858), 1 Sw. & Tr. 88 68 Alexander v. Soutliey (1821), 5 B. & Aid. 247 ; 24 R. R. 348 226 Alfred v. Fitzjames (1799), 3 Esp. 3 110 Allbutt V. Taylor (1887), unreported ; Bluebook, 1896— C— 8048 334, 340 Allen V. Flood, (1898) A. C. 1 ; 67 L. J. Q. B. 119 ; 77 L. T. 717 ; 46 W. R. 258 ; 14 T. L. R. 125 194, 574, 575, 576, 609 Allen e. Hayward (1845), 7 Q. B. 960 ; 15 L. J. Q. B. 99 ; 10 Jur. 92 13 Allen V. L. & S. W. Rail. Co. (1870), L. R. 6 Q. B. 65 ; 40 L. J. Q. B. 55 ; 23L. T. 612; 19 W. R. 127 239, 246, 247, 268 Allen r. New Gas Co. (1876), 1 Ex. D. 251 ; 45 L. J. Ex. 668; 34 L. T. 541 298, 309 Allen V. Rawson (1845), 1 C. B. 551 ; 68 R. R. 751 188 AUen V. Rescous (28 Car. II.), 2 Lev. 174 97, 144 AUsop, Ex parte (1875), 32 L. T. 433 127, 134 Alsop V. Yates (1858), 27 L. J. Ex. 156 ; 2 H. & N. 768 309 Althorf v. Wolfe (1860), 8 Sra. N. Y. 355 261, 272 XI i TABLE OP CASES. PAOK Alton V. Midland Rail. Co. (1865), 19 C. B. N. S. 213; 34 L. J. C. P. 292; 12 L. T. 703; 13 W. R. 918 201, 226 Amann v. Damm (1860), 8 C. B. N. S. 597 ; 29 L. J. C. P. 313 ; 2 L. T. 322 ; 8 W. R. 470 153 Ames V. Union Rail. Co. (1875), 19 Amer. Rep. 426 202 Amor V. Fearou (1839), 9 A. & E. 548 ; 8 L. J. Q. B. 95 ; 48 R. R. 584 . . 177, 184 Amos, Re, (1891) 3 Ch. l.)9 ; 60 L. J. Ch. 570 ; 65 L. T. 69 ; 39 W. R. 550 ; 7 T. L. R. 559 582 Anderson v. Halley (1847), 9 D. 1222 112 Anderson r. Moon (1837), 16 S. 412 190, 191 Andrew r. Failsworth, &c., (1904) 2 K. B. 32; 73 L. J. K. B. 510; 90 L. T. 611 ; 52 W. R. 451 654 Andrews v. Andrews and Mears (19U8), 24 Times L. R. 709 665 Andrews v. Groves (1900), 16 Times L. R. 297 690 Andrews v. Pugh (1854), 24 L. J. Ch. 58 ; 3 W. R. 50 53 Anglo- American Oil Co. v. Manning, (1908) 1 K. B. 536 : 77 L. J. K. B. 205 . 278 Anon. (l78o), 6 Mod. 70 ; 12 Mod. 415 187 Anon. V. Harrison (1699), 12 Mod. 346 219 Apollo, The, (1891) A. C. 499; 61 L. J. P. 251 ; 65 L. T. 590 ; 7 Asp. M. C. 115 238, 270 Appleby v. Dods (1807), 8 East, 300 ; 9 R. R. 450 122 Appleby (■ Franklin (1885), 17 Q. B. D. 93: 55 L J. Q. B. 129; 54 L T. 1 35 ; 34 W. R. 231 '-^OO Appleby i: Horseley, (1899) 2 Q. B. 521 : 68 L. J. Q. B. 892 ; 80 L. T. 853 ; 47 W. R. 614 682 Appleby v. Meyers (1866), L. R. 2 C. P. 651 ; 36 L. J. 0. P. 331 ; 16 L. T. 669 121. 18'3 Araminta, The (1854), 18 Jur. 793 118 Archer r. James (1862), 2 B. & S. 61 ; 31 L. J. Q. B. 153; 6 L. T. 167; 10 W. R. 489 109, 334, 340, 346 Archer v. Marsh (1837), 6 A. & E. 959 ; 6 L. J. K. B. 244 104, 105 Ardiiig r. Loma.x (1855), 10 Exch. 734 ; 24 L. J. Ex. 80 175 Armitage r. Lanes. & Yorks. Rail. Co., (1902) 2 K. B. 178 ; 71 L. J. K. B. 778 ; 86 L. T. 883 ; 66 J. P. 613 654 Armory v. Delamirie (1721), 1 Sm. L. C. 385 ; 1 Strange, 505 35 Armstrong v. Claveriug (1859), 27 Beav. 226 8, 9 Armstrong v. South London Tramways (1890), 64 L. T. 96 115 Ai-uold V. Poole Corporation (1842), 4 M. & G. 860 ; 12 L. J. P. C. 97 ; 7 Jur. 653 ''7, 93 Ashcroft v. Bertles (1796), 6 T. R. 662 199 Ashworth v. Stanwix (1861), 3 E. & E. 701 ; 30 L. J. Q. B. 183 ; 4 L. T. 85 14,74,291 Aspdin V. Austin (1844), 5 Q. B. 671 ; 13 L. J. Q. B. 155 107 Association of Laud Financiers (1881), 16 C. D. 373; 50 L. J. Ch. 201 ; 43 L. T. 753 ; 29 W. R. 277 127 Aste V. Montague (1858), 1 F. & F. 264 2-0 AthenEeum Assurance Co., Re (1859), Johns. 451 ; 5 Jur. (N. S.) 216 234 Athersmith v. Drury (1858), 28 L. J. M. C. 51 ; 1 E. & E. 46 ; 7 W. R. 14 . . 338 Atkin r. Acton (1830), 4 C. & P. 208 178 Atkins v. Banwell (1802), 2 East, 505 147 Atkinson v. Bell (1828), 8 B. & C. 277 ; 2 M. & R. 292 37 Atkinsou V. Denby (1862), 7 H. & N. 934 ; 31 L. J. Ex. 362 ; 7 L. T. 93 ; 10 W. R. 389 1-^5 Atkyns v. Kinnier (1850), 4 Exch. 776 ; 19 L. J. Ex. 132 102 Atlee V. Backhouse (1838), 3 M. ic W. 633 ; 1 H. & N. 135 ; 7 L. J. Ex. 234. . 224 TABLE OF OASES. XIU PAGE Attorney-General r. Brijrhton Corporation, 77 L. -T. Cli. ; G L. G. R. ")! ; 71 J. P. 535 560, 561 Attorney- General v. Burprers (17'26), Bunb. 22.3 275 Attorney -General v. Siddon (1830), 1 Tyr. 41 ; 1 C. & J. 220 232, 275 Attorney- General v. Stranyforth (1721), Bunb. 97 275 Attorney-General of Isle of Man v. Mylechreest (1879), 4 A. C. 294 ; 48 L. J. P. C. 36 ; 40 L. T. 764 364 Attorney- General of Straits Settlement v. Wcmyss (1888), 13 A. C. 192 ; 57 L. J. "p. C. 62 ; 58 L. T. 358 262 Austin p. Bethual Green Union (1871), L. R. 9 C. P. 91 ; 43 L. J. C. P. 100 ; 29 L. T. 807 ; 22 W R. 406 77 Austin Friars Steamship Co. r. Strack, (1005) 2 K. B. 315 ; 74 L. J. K. B. 683 ; 93 L. T. 169; 53 W. R. 661 171 Australian Royal Mail Co. v. Marzotti (1855), 11 Exch. 228 ; 24 L. J. Ex. 273 ; 3 C. L. R. 1179 75 Avery r. Langford (1S54), 1 Kay, 663 ; 23 L. J. Ch. 837 ; 2 W. R. 615 . . 102, 104 Ayliff V. Archdale (45 Eliz.), Cro. Eliz. 920 61 Ayres v. Buckerida-e, (1902) 1 K. B. 57 : 71 L. J. K. B. 28 ; 85 L. T. 472 ; 50 W. R. 115 ; 65 J. P. 804 682 Baddeley v. Granville (1887), 19 Q. B. D. 423 ; 56 L. J. Q. B..501 ; 57 L. T. 268 ; 36 W. R. 63 303 Badeley v. Consolidated Bank (1888), 38 C. D. 338 ; 57 L. J. Ch. 468 ; 55 L T. 635; 35 W. R. 106 44,53 Badische Anilin v. Sohott, (1892) 3 Cli. 447 ; 61 L. J. Ch. 698 ; 67 L. T. 281 . . 102, 103 Bailey, Ex parte (1854), 3 E. & B. 607 ; 23 L. J. M. C. 161 108, 617 Bailey v. Neale (1888), 5 Times L. R. 20 305 Bailey v. Plant, ( 1901) 1 K. B. 31 ; 70 L. J. K. B. 63 692 Bailey v. Thurston, (1903) 1 K. B. 137 ; 72 L. J. K. B. 36 ; 88 W. R. 43 ; 51 W. R. 162 210, 211 Baillie v. Kell (1838), 4 Bing. N. C. 638 ; 71 L. J. C. P. 249 184 Bainbridge r. Postmaster-General, fl906) 1 K. B. 178 ; 75 L. J. K. B. 366 ; 94 L. T. 120 ; 54 W. R. 221 262 Bainbridge v. Smith (1889), 41 C. D. 462 ; 60 L. T. 879 ; 37 W. R. 594 163 Baines V. Geary (1887), 35 C. D. 154; 56 L. J. Ch. 935; 56 L. T. 567; 36 W. R. 98 104, 105 Baird v. Graham (1852), 14 D. 615 271 Baker v. Bolton (1808), 1 Camp. 493 ; 10 R. R. 734 201 Baker v. Carter (1878), 3 Ex. D. 132 ; 47 L. J. M. C. 87 ; 26 W. R. 497 .... 277, 414, 416 Baker v. Hedgecoek (1888), 39 C. D. 520; 57 L. J. Ch. 889 ; 59 L. T. 361 ; 36 W. R. 840 104 Baldry -J). Bates (1885), 52 L. T. 021 ; 1 T. L. R. 558 216 Baldwin r. Cassella (1872), L. R. 7 Ex. 3^5 ; 41 L. J. Ex. 167 ; 26 L. T. 707 ; 21 W. R. 16 233 Ball, Ex parte (1853), 3 D. M. & G. 155 134 Ball, Ex paite (1879), 10 C. D. 667 ; 48 L. J. Q. B. 57 ; 40L.T. 141 ; 27 W. R. 563 201 Ball V. Coggs (1710), 1 Bro. P. C. 140 162 Bank of New South Wales v. Owston 0^79), 4 A. C. 270 ; 48 L. J. P. C 25 ; 40 L. T. 500 233, 240, 248, 267, 269 Bank of United States r. Dandridge (1817), 2 Wheaton, 64 23 Banks r. Crossland (1874), L. R. 10 Q. B. 97 ; 41 L. J. M. C. 8: 32 L. T. 226; 23 W. R. 414 82, 617 XIV TABLE OF CASES. PAGE Banner v. Berridge (1881), 18 C. D. 254 ; 50 L. J. Oh. G30 ; 44 L. T. 680 ; 29 W. R. 844 132 Barber v. Dennis (1783), 6 Mod. 69 62, 187 Barbara v. Ipswicb Dock Coniniissioners (1886), 54 L. T. 23 2.')2 Barker v. Parker (1786), 1 T. B. 287 205 Barnes r. Akroyd (1872), L. R. 7 Q. B. 474; 41 L. J. M. C. 110: 26 L. T. 692 ; 20 W. R. 671 276 Bamett v. Hickmott, (1895) 1 Q. B. 691 ; 64 L. J. Q. B. 407 ; 72 L. T. 236; 43 W. R. 284 ; 59 J. P. 230 42 Barnsley r. Taylor (1867), 32 J. P. 229 160 Barrett r. Deere (1823), Mood. & Malk. 200 220 Bartell r. Gray, (1902) 1 K. B. 225; 71 L. J. K. B. 115; 85 L. T. 658; 50 W. R. 310 ; 66 J. P. 308 518 Bartlett v. Tutton, (1902) 1 K. B. 72: 71 L. J. K. B. 52 ; 85 L. T. 531 ; 50 W. R. 149 ; 66 J. P. 196 682 Bartonsbill Coal Co. v. M'Guire (1858), 3 Macq. (Sc.) 300 ; Paterson, 789 283, 294, 633 Bartonsbill Coal Co. v. Reid (1858), 3 Macq (Sc.) 266 ; Paterson, 785 . . 231, 266, 280, 282, 283, 289, 294 Barwick v. Englisb Joint Stock Bank (1867), L. R. 2 Ex. 259 ; 36 L. J. Ex. 147 ; 16 L. T. 461 232, 233, 235, 237, 238 Basten v. Butter (1806), 7 East, 479 123 Baster v. London and County Printing Works (1899), 15 Times L. R. 331 173 Batavia, Tbo (1822), 2 Dod. 500 169 Bates V. Warner (1889), 5 Times L. R. 582 639 Batterbury v. Vyse (1863), 32 L. J. Ex. 177 ; 2 H. & C. 42 ; 8 L. T. 283 ; 1 1 W. R. 891 115 Battersey's Case (20 Jac. I.), Winch. 48 144 Batty V. Monks (1814), 12 L. T. (N. S.) 832 149 Baumwoll, &c. /-. Furucss, (1893) A. C. 8 ; 62 L. J. Q. B. 201 : 68 L. T. 1 . . . . 15, 16, 236, 259, 269 Baxter r. Burfield (1747). 2 Stra. 1266 205, 213 Baxter v. Gray (1842). 4 Scott, N. R. 374 ; 3 M. & G. 771 116 Baxter v. Nurse (1844), 1 C. & K. 10 ; 6 M. & G. 938 135, 137, 142 Baxter v. Portsmouth (1826), 5 B. & C. 170 ; 7 D. & R. 614 ; 2 Car. & P. 178. . 73 Bayley v. M. S. & L. Rail. Co. (1872), 8 C. P. 148 ; 42 L. J. C. P. 78 ; 28 L. T. 366 231, 234, 239, 241, 269 Bayley v. Rimmell (1836), 1 M. & W. 506 ; 5 L. J. Ex. 192 110. 136 Baylis v. Dineley (1815), 3 M. & S. 479 61 Bazeley v. Forder (1868), L. R. 3 Q. B. 565; 37 L. J. Q. B. 237; 18 L. T. 756 63, 67 Beale v. Caddick (1857), 2 H. & N. 326 ; 26 L. J. Ex. 356 208 Bealei'. G. W. Rail. Co. (1901), 17 T. L. R. 450 171, 173 Beale v. Mouls (1847), 10 Q. B. 976 ; 16L. J. Q. B. 410 : 5 Rail. Cas. 105. . . . 208 Beale v. Thompson (1804), 4 East, 546 ; 7 R. R. 625 123 Beard v. London Gen. Omnibus Co., (1900) 2 Q. B. 530 ; 69 L. J. Q. B. 895 ; 83 L. T. 362 '^i, 232, 270 Beaulieu v. Fingham, 2 Hen. IV., fo. 18, pi. 6 ; 1 C. B. 586, n 264 Beaumont;^. Meredith (1814), 3 Ves. & B 180 578 Beavan v. McDonnell (1854), 9 Exch. 309 ; 23 L. J. Ex. 94 ; 22 L. T. 243. . . . 73 Becher v. G. E. Rail. Co. (1870), L. R. 5 Q. B. 241 ; 39 L. J. Q. B. 122 ; 22 L. T. 299 : 18 W. R. 627 202 Beckham v. Drake (1841). 9 M. & W. 79 ; 2 H. L. C. 606 73, 158, 210 Beer v. Loudon and Paris Hotel Co. (1875), 20 Eq. 412 ; 32 L. T. 715 222 TABLE OF CASES. XV PAGE Beeston v. CoUyer (1827), 4 Biiig. 309 ; 5 L. J. (0. S.) C. P. 180 81, 135, 139, 140, 142, 175 Bell V. Bruce (1891), 55 J. P. 535 416 Bell V. Drummond (1791), 1 Peake, (53 117 Bell V. Wilson (1865), 35 L. J. Ch. 337 ; L. R. 1 Ch. 303 ; 14 L. T. (N. S.) Ho; 14 W. R. 493 364 Belper v. Bayley (1882), 9 Q. B. D. 259 ; 51 L. J. M. C. 911 ; 46 J. P. 438 . . 452 Bennett, Ex parte (1838), 3 Monk. & A. 669 133 Bennett v. Allcott (1787), 2 T. R. 166 203 Bennett v. Harding, (1900) 2 Q. B. 397 ; 69 L. J. Q. B. 701 ; 83 L. T. 51 ; 48 W. R. 647 469, 472 Bennett r. Slater, (1899) 1 Q. B. 45; 68 L. J. Q. B. 45; 79 L. T. 324; 47 W. R. 82 593 Bensley v. Bignold (1822), 5 B. & Aid. 335 97 Benson v. Lanes. & Yorks. Rail. Co., (1904) I K. B. 242 ; 73 L. J. K. B. 122 ; 89 L. T. 715 ; 52 W. R. 243 6i3 Bent V. Roberts (1877), 3 Ex. D. 66 ; 47 L. J. Ex. 112 ; 37 L. T. 673 ; 26 W. R. 128 50 Benwell, Ex parte (1884), 14 Q. B. D. 301 ; 54 L. J. Q. B. 53 ; 51 L. T. 677 ; 33 W. R. 242 129, 211 Benwell v. Inns (1857), 24 Beav. 307 ; 26 L. J. Ch. 663 104, 105, 213 Benyon, He (1884), 32 W. R. 871 9 Bernard, Ex parte (1852), 5 De G. & S. 283 234 Berrin^er t: G. E. Rail. Co. (1879), 4 C. P. D. 163 : 48 L. J. C. P. 400 ; 27 W. iR. 681 202 Bertie v. Beaumont (1812), 16 East, 33 47 Bettini p. Gye (1876), 1 Q. B. D. 183 ; 45 L. J. Q. B. 209 ; 34 L. T. 246 ; 24 W. R. 55i 192 Betts V. Ai-rastead (1888), 20 Q. B. D. 771 ; 57 L. J. Q. B. 100 ; 58 L. T. 811 ; 36 W. R. 720 277 Betts V. De Vitre (1868), 3 Ch. 429 ; 37 L. J. Ch. 325 ; 18 L. T. 165 ; 16 W. R. 629 234, 239 Betts V. aibbins (1834), 2 A. & E. 57 ; 4 L. J. K. B. 1 145 Bevan v. Crawshay, (1902) 1 K. B. 25 ; 71 L. J. K. B. 49 ; 85 L. T. 496 ; 50 W. R. 98 680 Beverley v Lincoln Gas Co. (1837), 6 A. & E 829 ; 45 R. R. 626 75 BiddletJ. Hart (1907), 23 T. L. R. 262 631, 633 Bidgood r. Way (1778), 2 W. Bl. 1236 66 Bill v. Darenrh VaHey Rail. Co. (1856), 1 H. & N. 305; 26 L. J. Ex. 81 ; 4 W. R. 684 80 Bilhngs V. HoUoway, (1899) 1 Q. B. 70 ; 68 L. J. Q. B. 16 ; 79 L. T. 396 ; 47 W. R. 105 519 Birch V. Liverpool (1829), 9 B. & C. 392 ; 33 R. R. 212 82 Bird V. Holbrook (1828), 4 Bing. 628 ; Moo. & P. 607 289 Bird V. McGahey (1849), 2 C. & K. 707 114 Birkin v. Forth (1875), 33 L. T. 532 60, 61 Birtwistle r. Hindle, (1897) 1 Q. B. 192; 66 L. J. Q. B. 173; 76 L. T. 159; 45 W. R. 207 ; 61J. P. 70 473 Bishop V. Letts (1858), 1 E. & F. 401 88 Bist V. L. & S. W. Rail. Co., (1907) A. C. 209 ; 76 L. J. K. B. 703 ; 97 L. T. 750 652 Black V. Christchurch Finance Co., (1894) A. C. 48; 63 L. J. P. C. 32 ; 70 L. T. 77 255, 256 Blackford v. Preston (1799), 8 T. R. 89 100 Blackwell v. Pennant (1852), 9 Ha. 551 ; 22 L. J. Ch. 155 9, 143 Blake, The (1839), 1 W. Rob. 73 124 XVI TABLE OF CASES. PAOE Blake v. Lanyon (179o), 6 T. R. 221 7, 199 Blake r. Midland Rail. Co. (1852), 18 Q. B. 93 : '21 L. J. Q. B. 233 ; 16 Jur. 562. 645 Blake v. Midland Rail. Co., (1904) 1 K. B. 503 ; 73 L. J. K. B. 179 ; f L. T. 433 ; (58 J. P. 215 ; 20 T. L. R. 191 692 Blake ;;. Thirst (1863), 2 H. & C. 20 ; 32 L. J. Ex. 189 ; 8 L. T. (N. S.) 251 ; 11 W. R. 1034 -'"^ Blaymire v. Haley (1840), 6 M. & W. 55 ; 9 L. J. Ex. 147 ; 55 R. R. 501 . . 198, 203 Blenkarn v. Hodfres' Distillery (1867), 16 L. T. (N. S.) 608 177 Blenkinsop v. Offden, (1898) 1 Q. B. 783 ; 67 L. J. Q. B. 537 ; 78 L. T. 554 ; 46 W. R. 642"' 473, 533 Blessing-, The (1878), 3 P. D. 35 : 38 L. T. 259 ; 26 W. R. 404 ; 3 Asp. M. C. 561.! no, 131 Bloss r. Holman (30 Eliz.), Owen, 52 oii Blovelt v. Sawyer, (1904) 1 K. B. 271 ; 73 L. J. K. B. 155 ; 89 L. T. 658 ; 52 W. R. 503 653 Bloxam v. Elsee (1825), 1 C. & P. 558 188 Blox-some r. Williams (1824), 3 B. & C. 232 312 Boardman v. Seott, (1902) 1 K. B. 43; 71 L. J. K. B. 3 : 85 L. T. 502 ; 50 W. R. 184 ; 66 J. P. 260 655 Boardman r. Sill (1809), 1 Camp. 410 168 Boast »;. Firth (1868), 4 C. P. 1 ; 38 L.J. C. P. 1 ; 19 L. T. 264 ; 17 W. R. 29. 183 Bogg V. Pear.se (1851), 10 C. B. 534 ; 20 L. J. C. P. 99 ; 2 L. M. & P. 21 .... 13 Bolingbroke v. Swindon Local Board (1874), 9 C. P. 575 ; 43 L J. C. P. 575 : 30 L. T. 723 ; 23 W. R. 47 241, 269 Boiling r. Ellice (1845), 9 Jur. 936 8 Bond V. Evans (1888), 21 Q. B. D 249 ; 57 L. J. M. C. 105 ; 59 L.T. 411 : :<6 W. R. 767 275, 276, 277 Booth V. Dean (1833), 1 My. & K. 560 ; 2 L. J. Ch. 162 8 Booth V. Mister (1835), 7 C. & P. 66 24, 261 , 267 Booth t: Trail (1883), 12 Q. B. D. 8 ; 53 L. J. Q. B. 24 ; 49 L. T. 471 ; 32 W. R. 122 130 Boothroyd, Re (1846), 15 M. /ir. W. 1 ; 15 L. J. M. C. 57 ; 10 Jur. 117 318 Boots r. Grundy (1900), 82 L. T. 769 575 Bortick r. Head, Wrightson & Co. (1885), 53 L. T. 909 ; 34 W. R. 102 ; 50 J. P. 327 637 Bosley v. Davies (1875), 1 Q. B. D. 84 : 45 L. J. M. C. 27 ; 33 L. T. 528. .275, 276 Boston Fishing Co. v. Ansell (1888), 39 C. D. 339 ; 59 L. T. 345 176, 184, 185, 186, 187 Bottomley v. Fisher (1862), 1 H. & C. 211 : 31 L. J. Ex. 417 : 6 L. T. 688 ; 10 W. R.'669 224 Bound v. Lawrence, (1892) 1 Q. B. 226 ; 61 L. J. M. C. 21 ; 65 L. T. 844 ; 40 AV. R. 1 618 Bourne t'. Netherseal Colliery (1889), 14 A. C. 228; 59 L. J. Q. B. 66; 01 L.T. 125.; 54 J. P. 84 388 Bowchier v. Coster (13 Car. II.), 1 Keble, 250 214 Bowen v. Hall (1881), 6 Q. B. D. 333 ; 50 L. J. Q. B. 305 ; 44 L. T. 75 ; 29 W. R. 373 5, 13, 194, 195, 574 Bower v. Peate (1876), 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 ; 35 L. T. (N. S.) 321 253, 257 Bowes V. Press, (1894) 1 Q. B. 202 ; 63 L. J. Q. B. 165 ; 70 L. T. 116 ; 42 W. R. 340 157, 161, 174 Bowry r. Bcnnct (1808), 1 Camp. 348 98 Bovdellj'. Drummond(1809}, 11 East, 142; 2 Camp. 157 83, 84 Boyle r. Smith, (1906) 1 K. B. 432 ; 75 L. J K. B. 282; 94 L. T. 30; 54 W. R. 619; 70 J. P. 115 277 TABLE OF CASES. XVU PAGE Brace v. Abercam CoUiery, (1891) 2 Q. B. 699 ; 60 L. J. Q. B. 706 ; 65 L. T. 694 ; 40 W. R. 3 '^^^ Brace v. Calder, (1895) 2 Q. B. 253 ; 64 L. J. Q. B. 582 ; 72 L. T. 829 ; 69 J. P. 693 ..:...... 94, 128, 157, 207 Braceg-irdle v. Heald (1818), 1 B. & Aid. 722 82 Bracey v. Carter (1840), 12 A. & E. 373 123 Bradburn v. G. W. Rail. Co. (1874), L. R. 10 Ex. 1 ; 44 L. J. Ex. 9 ; 31 L. T. 464 ; 23 W. R. 468 646 Bradbury r. Bedworth Coal Co. (1900), Times Newspaper, March 7 687 Bradshaw v. Hayward (1842), Car. & M. 591 97, 111, 112 Bradshaw v. Lanes, and Yorks. Rail. Co. (1875), L. R. 10 C. P. 189 ; 44 L. J. C. P. 148 ; 31 L. T. N. S. 847 ^46 Brady v. Giles (1835), 1 M. & Rob. 494 16, 258 Brady v. Todd (1861), 9 C. B. N. S. 592 ; 30 L. J. C. P. 223 ; 4 L. T. 212 ; 9 W. R. 483 -^^ Bramwell v. Pennick (1827), 7 B. & C. 536 ; 1 M. & Ry. 409 ; 6 L. J. (O. S.) M. C. 47 • 6^'^ Brannigan v. Robinson, (1892) 1 Q. B. 344 ; 61 L. J. Q. B. 202 ; 66 L. T. 647 ; 56 J. P. 328 633 Brass v. London C. C, (1904) 2 K. B. 336 ; 73 L. J. K. B. 841 ; 91 L. T. 344 ; 53 W. R. 27 ; 68 J. P. 365 ^" Braunstein v. Lewis, (1891) 65 L. T. 449 72 Bray v. Chandler (1856), IS C. B. 718 ; 4 W. R. 518 176 Brennan v. Gilbart Smith (1894), 10 Times L. R. 647 140 Breslin v. Waldron (1855), 4 Ir. Ch. 333 8 Brett V. East India, &c. (1864), 2 H. & M. 404 ; 3 N. R. 688 ; 10 L. T. 187 ; 12 W. R. 596 164 Bridges v. Garrett (1869). 39 L. J. C. P. 241 ; L. R. 5 C. P. 451 ; 22 L. T. 448 ; 18 W. R. 815 222 Bridges v. Hawkesworth (1851), 2l L. J. Q. B. 75 ; 15 Jur. 1079 35 Briggs r. Boss (1868), L. R. 3 Q. B. 268 ; 37 L. J. Q. B. 101 ; 17 L. T. 599 ; 16 W. R. 480 640 Bright V. Lucas (1 796), 2 Peake, 12 187 Brindle, Ex parte (1887), 56 L. T. 498 ; 4 Mor. 104 129, 212 Brinton> r. Turvey, (1905) A. C. 230 ; 74 L. J. K. B. 474 ; 92 L. T. 578 ; 53 W. R. 641 655 Bristowe v. Whitmore (1861), 31 L. J. Ch. 467 ; 4 L. T. (N. S.) 622 ; 9 W. R. 621 Britain v. Rossiter (1883), 11 Q. B. D. 123 ; 48 L. J. Q. B. 362 ; 40 L. T. 240 ; 27 W. R. 482 83, 84, 8o British Mutual, &c. v. Charnwood Forest Rail. Co. (1887), 18 Q. B. D. 714 ; 56 L. J. Q. B. 449 ; 57 L. T. 833 ; 35 W. R. 590 233, 236, 242, 269 Britton v. G. W. Cotton Co. (1872), 41 L. J. Ex. 99 ; L. R. 7 Ex. 130 ; 27 L. T. 125; 20 W. R. 525 -..302, 310 Brocklebank, Re (1877), 6 C. D. 358 ; 46 L. J. Q. B. 113 ; 37 L. T. 282 ; 25 W. R. 859 61 Bromage r. Prosser (1825), 4 B. & C. 255 154, 196 Bromley v. Cavenaish Spinning Co. (1886), 2 Times L. R. 881 633 Brooks V. Baker, (1906) 1 K. B. U ; 75 L. J. K. B. 41 ; 94 L. T. 97 ; 54 W. R. 195 ; 70 J. P. 24 43 Brooks V. Hassall (1883), 49 L. T. (N. S.) 569 216 Brooks V. Mason, (19u2) 2 K. B. 743 ; 72 L. J. K. B. 19 278 Brough r. Homfray (1868), L. R. 3 Q. B. 771 ; 37 L. J. M. C. 177 ; 16 W. R. 1 123 ; 9 B. & S. 492 407 Brown r. Accrington Cotton Co. (1865), 3 H. & C. oil ; 34 L. J. Ex. 208 ; 13 L. T. 94 . . . . 250, 297, 298, 309 M. ^ 219 XVIU TABLE OF CASES. PAGE Brown v. Butterley Coal Co. (1885), 53 L. T. 9G4 5, 618 Brown v. Croft (1828), 6 C. & P. 16, n 177 Brown c. Foot (1892), 8 Times L. R. 268 276 Brown v. Harper (1893), 68 L. T. 488 60 Brown r. JodreU (1827), 3 C. & P. 30 73 Brown v. Naime (1839), 9 C. & P. 264 113 Brown v. Syraons (1860), 8 C. B. (N. S.) 208 ; 29 L. J. C. P. 251 ; 8 W. E. 460 137, 142 Browning v. Great Central Mining Co. (18G0). o H. & N. 856 ; 29 L. J. Ex. 399 84 Broxham v. Wagstaffe (1841), 5 Jur. 845 140 Bryant v. Flight (1839), 5 M. & W. 114 ; 8 L. J. Ex. 189 ; 3 Jur. 681 114 Brydon v. Stewart (1852), 2 Macq. 30 ; 1 Pat. 447 282, 293, 297 Brysou v. Whitehead (1822), 1 Sim. & S. 74 ; 1 L. J. (0. S.) Ch. 42 103 Buckingham v. Surrey, &c. Canal Co. (1882), 46 L. T. 885 ; 46 J. P. 774. . 138, 142 Budd V. Lucas, (1891) 1 Q. B. 408 ; 60 L. J. M. C. 95 ; 64 L. T. 292 : 39 W. R. 350 ; 55 J. P. 550 277 Budgett V. Binnington (1890), 25 Q. B. D. 320 ; 63 L. T. 493 ; 39 W. R. 13. . 14 Bullen r. Sharp (18G5), 1 C. P. 86 ; 35 L. J. C. P. 105 ; 14 L. T. 72 ; 14 W. R. 338 44, 53 BuUer v. Harrison (1777), Cowp. 565 224 Bulmer v. Oilman (1842). 4 M. & G. 108 ; 4 Scott, N. R. 781 ; 1 D. & L. 367. . 180 Bunch V. G. W. Rail. Co. (1886), 13 A. C. 31 ; 57 L. J. Q. B. 361 ; 58 L. T. 128 ; 36 W. R. 785 247, 270 Bunker v. Midland Rail. Co. (1882), 47 L. T. (N. S.) 476 ; 31 W. R. 231 .... 635 Bunn V. Guy (1803), 4 East, 190 102 Bunnings v. Lyric Theatre (1894), 71 L. T. 396 96 Burgess v. Gray (1845), 1 C. B. 578 ; 14 L. J. C. P. 184 258 Burke v. Amal. Society of Dyers, (1906) 2 K. B. 583 ; 75 L. J. K. B. 533. .581, 589 Burleigh v. Stibbs (1793), 5 T. R. 465 87 Burnley Equitable Co-operative Society v. Casson, (1891) 1 Q. B. 75 ; GO L. J. M. C. 59 ; 63 L. T. 652 ; 39 W. R. 124 62 Burns v. Poulson (1873), 8 C. P. 563 ; 42 L. J. C. P. 302 ; 29 L. T. 329 ; 22 W. R. 20 231, 243, 269 Buron v. Denman (1848), 2 Exch. 167 ; 12 Jur. 82 28 Burr V. Theatre Royal, (1907) 1 K. B. 544 : 7G L. J. K. B. 459 ; 96 L. T. 447. . 281 Burt V. Bull, (1895) 1 Q. B. 276; 64 L. J. Q. B. 232; 71 L. T. 810; 43 W. R. 180 224 Burton v. G. N. Rail. Co. (1854), 9 Exch. 507 ; 23 L. J. Ex. 184 ; 2 W. R. 257 . 95 Burton v. Palmer (11 Jac. I.), 2 Buls. 191 62 Burton v. Pinkerton (1867), L. R. 2 Ex. 340; 36 L. J. Ex. 137 ; 17 L. T. 15 ; 15 W. R. 1139 158, 171 Bury V. Cherryholm (1876), 1 Ex. D. 457 ; 35 L. T. 403 452 Bush V. Steinmdn (1799), 1 B. & P. 404 ; 6 Esp. G 18, 19, 249, 252 Buter. Grindall (1786), 1 T. R. 338 42, 47 Butler, Ex parte (1857), 28 L. T. 375 134 Butler V. Hunter (1862), 7 H. &N. 826 ; 31 L. J. Ex. 214 ; 10 W. R. 214. .251, 253 Butterfield v. Marlor (1851), 3 C. & K. 163 142 Button V. Thompson (1869), 4 C. P. 330 ; 38 L. J. C. P. 225 ; 20 L. T. 568 ; 17 VV. R. 1069 120, 121, 122, 132, 186, 619 Butts V. Penny (1677), 2 Lev. 201 27 Buxton Lime Firms Co. v. Howe, (1900) 2 Q. B. 232 ; 09 L. J. Q. B. 498 ; 82 L. T. 422 ; 48 W. R. 472 350 TABLE OF CASES. XIX PAOK Caine v. Palace S.S. Co., (1907) A. C. 670 ; 76 L. J. K. B. 292 ; 96 L. T. 410 121, 171 Cairney v. Back, (1906) 2 K. B. 746; 7.5 L. J. K. B. lOM ; 96 L. T. Ill : 22 T. L. R. 776 127, 134 Caister v. Eccles (13 Will. III.), Ld. Raym. r.83 214 Caledonian Rail. Co. v. Paterson (1898), 1 F. 24 518 Callo V. Brouncker (1831), 4 C. & P. 518 170, 171, 172 Calye's Case (26 Eliz.), 8 R. 32 a ; 1 Sm. L. C. 119 236 Cambridge University r. Baldwin (1839), 5 M. & W. 581 206 Cameron r. Nystrom, (1893) A. C. 308; 62 L.J. P. C. 85; 68 L. T. 772: 57 J. P. 550 14, 19, 38, 39, 284, 289, 308 Catiipbell ('. Hall (1774), Cowp. 205 224 Campbell v. Ord (1873j, 1 R. 149 304 Campbell v. Price (1831), 9 S. 264 213 Campden Charities. Re (1880), 18 C. D. 310 ; 50 L. J. Ch. 646 ; 45 L. T. 152 ; 30 W. R. 496 40 Canterbury v. Att.-Gen. (1843), 1 Phill. 306 ; 4 St. Tr. (N. S.) 767 262 Card p. Hope (1824), 2 B. & C. 661 ; 4 D. & R. 164: 2 L. J. (O. S.) K. B. 96.. 100 Carman v. Mayor of New York (1862), 14 Abb. 301 271 Carr v. Clarke (1818), 2 Chit. 261 ; 2 Ch. Rep. 260 ; 33 R. R. 748 203 Carr v. Hadsill (1874), 39 J. P. 246 181, 183 Carrol v. Bird (1800), 3 Esp. 201 152 Carson v. Watts (1784), 3 Doug. 350 187 Carter v. Clarke (1898), 14 Times L. R. 172 633 Carter v. Hall (1818), 2 Sta. 361 118 Carter v. Rigby, (1896) 2 Q. B. 113 ; 65 L. J. Q. B. 537 ; 74 L. T. 744 ; 44 W. R. 566 639 Cams V. Eastwood (1875), 32 L. T. 855 85, 626 Gary v. Webster (1716), 1 Stra. 480 224 Cashill V. Wright (1856), 6 E. & B. 891 ; 27 L. T. (O. S.) 283 ; 4 ^Y. R. 709. . 236 Castilia, The (1822), 1 Hagg. 59 170 Castle Spinning Co. t'. Atkinson, (1905) 1 K. B. 336 : 74 L. J. K. B. 265 .... 688 Castlegate, The, (1893) A. C. 38 ; 62 L. J. P. C. 17 ; 68 L. T. 99 ; 41 W. R. 349 166 Caswell V. North (1856), 5 E. & B. 849 ; 25 L. J. Q. B. 121 303, 304, 310 Cattermole v. Atlantic Transport Co., (1902) 1 K. B. 204 ; 71 L. J. K. B. 173 ; 85 L. T. 513 ; 50 W. R. 129 518, 662 Cawthorne v. Cordrey (1863), 13 C. B. (N. d.) 406 ; 32 L. J. C. P. 152 83 Challis V. L. & S. W. Rail. Co., (19i)5) 2 K. B. 154; 74 L. J. K. B. 569 ; 93 L. T. 330 ; 53 W. R. 613 654 Chamberlain v. Bennett (1892), 8 Times L. R. 234 140 Chamberlain's Wharf v. Smith, (1900) 2 Ch. 605 ; 69 L. J. Ch. 783 ; 83 L. T. 238 ; 49 W. R. 91 579, 581 Chancey'sCase (1717), 1 P. Wms. 408; 10 Mod. 399 116,130 Chandler v. Broughtun (1832), 1 C. & M. 29 ; 2 L. J. Ex. 25 ; 3 T>r. 220 .... 267 Chandler v. Grieves (1792), 2 H. Bl. 606, n 120, 122 Chandler v. Smith, (1899) 2 Q. B. 506 ; 68 L. J. Q. B. 909 ; 81 L. T. 317 ; 47 W. R. 677 660, 656, 687 Chanter v. Dickenson (184:-i), 5 M. & G. 253 ; 6 Scott, N. R. 182 ; 12 L. J. C. P. 147 88 Chapelts. Hickes (1833), 2 Cr. A: M. 214 ; 3 L. J. Ex. 38 123 Chaplin v. L. & N. W. Rail. Co. (1862), 5 L. T. N. S. 601 163 Chapman's Case (1866), 1 Eq. 346 ; 14 L. T. 742 128 62 XX TABLE OF CASKS. PAGE Chapman v. Allen (7 Car. I.), Cro. Car. I. 271 166 Chapman f . New York Central Rail. Co. (1865) 272 Chappie V. Cooper (1844), 13 M. & W. 252 ; 13 L. J. Ex. 286 62 Charles v. Plymouth Waterworks (1890), 60 L. J. M. C. 20 ; 39 W. R 122 . . 612, 614 Charles v. Taylor (1868), 3 C P. D. 496 ; 38 L. T. 773 ; 27 W. R. 32 . . . . 283, 308 Charleston v. London Tramways Co (1888), 4 T. L. R. 620 247, 269 Charlton, The (1895), 73 L. T. 49; 8 Asp. M. C. 29 ..260 Chamock v. Court, (1899) 2 Ch. 35 ; 68 L. J. Ch. 550 ; 80 L. T. 564 ; 47 W. R. 633 574 Chase v. Westmore (1816), 5 M. & S. 180 ; 2 Marsh, 346 167 Chavvner v. Cummins (1845), 8 Q. B. D. 311 ; 15 L. J. Q. B. 161 . . 109, 334, 340, 346 Cheap V. Gramond (1821), 4 B. cS: Aid. 663 51 Cherry «;. Bank of Australasia (1869), 38 L. J. P. C. 49; L. R. 3 P. C. 24; 21 L. T. 356 ; 17 W. R. 1031 223 Cherry V. Heming (1849), 4 Exch. 631 ; 19 L. J. Ex. 64 82 Cheshire v. Bailey, (1905) 1 K. B. 237 ; 74 L. J. K. B. 176 ; 92 L. T. 142 ; 53 W. R. 322 19, 244, 270 Chilcot V. Bromley (1806), 12 Ves. 114 8, 23 Child V. Affleck (1829), 9 B. & C. 403 ; 7 L. J. (O. S.) K. B. 272 ; 4 M. & R. 338 155 Chipchase, Ex parte (1862), 7 L. T. 290 134 Chippendall v. Tomlinson (1785), 4 Doug. 318 ; 7 East, 57, n 210 Chiaholm v. Doulton (1889), 22 Q. B. D. 736 ; 58 L. J. Q. B. 133 ; 60 L. T. 966 ; 37 W. R. 749 276 Churchward v. Chambers (1860), 2 F. & F. 229 173 Churchward v. Queen (1865), L. R. 1 Q. B. 195 ; 14 L. T. 57 96 Citizens' Life Assiu-ance Co. v. Brown, (1904) A. C. 423 ; 73 L J. P. C. 102 ; 90 L. T. 739 234, 235, 270 Clark's Case (1869), 7 Eq. 550; 38 L. J. Ch. 562 ; 20 L. T. (N. S.) 774 . .129, 159 Clark V. Bury St. Edmunds (1856), 1 C. B. (N. S.) 23; 26 L. J. C. P. 12; 5 W. R. 21 49 Clark V. Chambers (1878), 3 Q. B. D. 327 ; 47 L. J. Q. B. 427 ; 38 L. T. 454 ; 26 W. R. 613 304 Clark V. London General Onmibus Co., (1906) 2 K. B. 648 ; 75 L. J. K. B. 907; 95L. T. 435 200, 201, 645 Clark V. Mumford (1811), 3 Camp. 37 37 Clarke v. Cuckfield Union (1852), 21 L. J. Q. B. 349 ; 1 B. C. C. 81 ; 16 Jur. 686 76, 77 Clarke v. Earnshaw (1818), 1 Cow, 30 174 Clarke v. Gape (1596), 5 Rep. 129 29 Clarke v. Holmes (1862), 7 H. & N. 937 ; 31 L. J. Ex. 356 ; 10 W. R. 405 .... 303 Clarkson v. Musgrave (1882), 9 Q. B. D. 386 ; 51 L. J. Q. B. 525 ; 31 W. R. 47 640 Claygate v. Baoheler (44 Eliz.), Owen, 143 ; Cro. Eliz. 872 101 Cleary v. Booth, (1893) 1 Q. B. 465 ; 62 L. J. M. C. 87 ; 68 L. T. 349 ; 41 W. R. 391 ; 57 J. P. 375 30 Clemenshaw v. Dublin Corporation (1875), 10 Ir. C. L. 1 78 Clements v. L. & N. W. Rail. Co , (1894) 2 Q. B. 482 ; 70 L. T. 896; 42 W. R. 663 60, 626 Clemson v. Hubbard (1876), 1 Ex. D. 179 ; 45 L. J. Ex. 69 ; 33 L. T. 814; 24 W. R. 312 161, 612 Cleveland v. Spiers (1864), 16 C. B. (N. S.) 399 289, 308 Cleworth v. Pickford (1840), 7 M. & W. 314 ; 10 L. J. Ex. 41 ; 8 D. P. C. 873 123 TABLE OF CASES. XXI PAGE Clouston V. Corry, (1906) A. C. 122 ; 75 L. J. P. C. 20 ; 93 L. T. 706 ; 64 W. R. 382 179, 184 Clutterbuck v. Coffin (1842), 3 M. & G. 842; 4 Scott, N. R. 509; 11 L. J. C. P. 65 119 Cockayne v. Hodgkinson (1833), o C. & P. 543 ; 38 R. R. 845 156 Code i: Holmes (21 Jac. I.), Palmer, 361 62, 87 Coe V. Piatt (1852), 7 Exch. 923 ; 21 L. J. Ex. 146 -173 Coe V. Wise (1864), 5 B. & S. 440 ; 37 L. J. Q. B. 262; 10 L. T. 606 ; 12 W. R. 1036 263 Coggs V. Bernard (1703), Ld. Raym. 909 ; 1 Sm. L. C. 199, 233 174 Coin V. St. Germon Brown, Penn. 24 313 Colburn v. Patinore (1834). Cr. M. & R. 173 ; 4 Tyr. 077 144 Coldrick v. Partridge, Jones & Co. (1908), 24 Times L. R. 646 282, 653 Coleman r. Riches (1855), 16 C. B. 104 ; 24 L. J. C. P. 125 ; 3 C. L. R. 795. . 222 Collenv. Wright (1857), 8 E. & B. 647; 27 L. J. Q. B. 215; 6 W. R. 123.... 223 Collett V. Foster (1857), 2 H. & N. 356 ; 26 L. J. Ex. 412 ; 5 W. R. 790 .... 260 Collins V. Locke (1879), 4 A. C. 674 ; 48 L. J. P. C. 68 ; 41 L. T. 292 ; 28 W. R. 189 105, 573, 581 Collman v. Mills, (1897) 1 Q. B. 396 ; 66 L. J. Q. B. 170 ; 75 L. T. 590 276 Collman v. Roberts, (1896) 1 Q. B. 457 ; 65 L. J. M. C. 63 ; 74 L. T. 198 ; 44 W. R. 445 -'57 Collyer, Ex parte (1834), 2 Mont. & A. 29 133 Colvin 1-. Newbery (1830), 7 Bing. 190; 1 Tyr. 55 ; 9 L. J. (0. S.) Ex. 13; 1 CI. & T. 283 16 Combe's Case (1613), 9 R. 70, a ; 77 E. R 30 Commissioners of Police i-. Cartman, (1896) 1 Q. B. 655 ; 65 L. J. M. C. 113 ; 74 L. T. 726 ; 44 W. R. 637 276 Condon v. G. S. & W. Rail. Co. (1865), 16 Ir. C. L. 415 645 Connor v. Kent, (1891) 2 Q. B. 545 ; 61 L. J. M. C. 9 ; 65 L. T. 573 . . . .572, 597, 599, 601 Connors r. Justice (1862), 13 Ir. C. L. R. 451 156, 178 Conroy v. Peacock, (1897) 2 Q. B. 6 ; 66 L. J. Q. B. 425 ; 76 L. T. 465 ; 45 W. R. 502 638 Contract Co., Re (1869), 8 Eq. 14 ; 20 L. T. 964 75 Conway v. Belfast Rail. Co. (1877), 11 Ir. C. L. 345 307 Conybeare v. New Brunswick Rail. Co. (1862), 9 H. L. C. 725 235 Cook V. North Metropolitan Tramways Co. (1887), 18 Q. B. D. 683 ; 56 L. J. Q. B. 309 ; 57 L. T. 476 ; 35 W. R. 577 618 Cooke V. Wilson (1856), 1 C. B. (N. S.) 153 ; 26 L. J. C. P. 15 ; 5 W. R. 24 . . 224 Coombe's Case (1613), 9 Co. Rep. 75 30 Cooper, Ex parte (1884), 26 C. D. 693 ; 51 L. T. 374 336 Cooper V. Martin (1803), 4 East, 76 63 Cooper V. Phillips, (1831), 4 C. & P. 581 147 Cooper V. Reilly (1829). 2 Sim. 560 ; I Russ. « M. 560 100 Cooper V. Simmons (1862), 7 H. & N. V07 ; 31 L. J. M. C. 138 ; 5 L. T. 712 ; 10 W. R. 270 61, 214, 151, 206, 214 Cooper and Crane v. Wright, (1902) A. C. 302 ; 7L L. J. K. B. 642 ; 86 L. T. 776 ; 51 W. R. 12 665 Cope V. Rowlands (1836), 2 M. & W. 149 ; 6 L. J. Ex. 63 97 Copley V. Burton (1870), 39 L. J. M. C. 141 ; L. R. 5 C. P. 489 ; 22 L. T. 888 . . 276 Coppen V. Moore, (1898) 2 Q. B. 306 ; 07 L. J. Q. B. 689 ; 78 L. T. 520 ; 46 W. R. 620 ; 62 J. P. 453 232, 276 Corbett V. Pearce, (1904) 2 K. B. 422 ; 73 L. J. K. B. 885 ; 90 L. T. 781 620 Core V. James (1871), L. R. 7 Q. B. 135 ; 41 L. J. M. C. 19 ; 25 L. T. 593 ; 20 W. R. 201 276 XXll TABLE OF CASES. PAUE Cormick v. Digby (1876), 9 Ir. C. L. 557 268 Com v. Matthews, (1893) 1 Q. B. 310 ; 02 L. J. M. C. 61 ; 08 L. T. 480 : 41 W. R. 262 61 Comford v. Carlton Bank, (1899) 1 Q. B. 392 ; 68 L. J. Q. B. 196 ; 80 L. T. 121 234, 235, 270 Cornw-all v. Hawkins (1872), 41 L. J. Cli. 435 : 26 L. T. 607 ; 20 W. R. 653. .59, 63 Costigan v. Mohawk Rail Road Co., 2 Denio, 609 159 Couch v. Steel (1854), 3 E. & B. 402 ; 23 L. J. Q. B. 121 ; 2 C. L. R. 490. . 148, 280 Couchman r. Sillar (1870), 22 L. T. 480 ; 18 W. R. 757 149 Coulthard r. Cousett Iron Co., (1905) 2 K. B. 869 ; 75 L. J. K. B. 60 ; 54 W. R. 139 ; 22 T. L. R. 25 677 Countess of Harcoui-t, The (1824), 1 Ilagg. 248 122 County Assurance Co., Re (1870), L. R. 5 Ch. 288 ; 39 L. J. Ch. 471 ; 22 L. t. 537 23 Coupe Co. V. Maddick, (1891) 2 Q. B. 413; 00 L. J. Q. B. 670; 05 L. T. 489 19, 225, 244 Coventry v. Woodhall (1616), Hob. 134 150, 191, 213 Cowlesw. Potts (1865), 34 L. J. Q. B. 2l8 ; 13 W. R. 858 156 Cox V. G. W. Rail. Co. (1882), 9 Q. B. D. 106 ; 30 W. R. 810 ; 47 J. B. 116. . 636 Cox V. Hakes (1890), 15 A. C. 506 ; 63 L. T. 392 ; 39 W. R. 145 ; 54 J. P. 820 434 Cox V. Hickman (1860), 8 H. L. C. 268 ; 30 L. J. C. P. 125 ; 8 W. R. 754 . .44, 53 Cox V. Matthews (1861), 2 F. & F. 397 189 Cox V. Midland Rail. Co. (1849), 3 Exch. 208 ; 18 L. J. Ex. 05 ; 13 Jur. 05 . . 221 Cox V. Muncey (1859), 6 C. B. (N. S.) 375 199 Cox V. Prentice (1815), 3 M. & S. 344 ; 16 R. R. 288 224 Co.xhead v. MuUis (1878), 3 C. P. D. 439 ; 47 L. J. C. P. 761 ; 39 L. T. 349 ; 27 W. R. 136 59 Coxhead v. Richards (1846), 2 C. B. 569 ; 15 L. J. C. P. 278 152, 1.54, 156 Crabtree v. Fern Spinning Co. (1901), 18 Times L. R. 91 474 Crampton r. Varna Rail. Co. (1872), L. R. 7 Ch. 562: 41 L. J. Ch. 817 ; 20 W. R. 713 75 Crampton and Holt v. Ridley (1887), 20 Q. B. D. 48 ; 57 L. T. 809 ; 36 W. R. 554 ' Ill Cranch r. White (1835), 1 Scott. 314 ; 1 Bing. N. C. 414 ; 1 Hodges, 61 226 Crane i: Powell (1868), L. R. 4 C. P. 123 ; 38 L. J. M. C. 43 ; 20 L. T. 703 ; 17 W. R. 161 83 Crawfoot, Ex parte (1831), Mont. 270 133 Creen v. Wright (1876), 1 C. P. D. 591 ; 35 L. T. 339 135, 140 Cremius r. Guest, Keen and Nettlefolds, (1908) 1 K. B. 409 ; 77 L. J. K. B. 320 ; 98 L. T. 355 653 Crepps V. Burden (1770), 2 Cowp. 640 313 Cribb t>. Kvnoch, (1907) 2 K. B. 548 ; 70 L. J. K. B. 948 ; 97 L. T. 181 ; 23 T. L. R."550 281, 282, 284, 291, 305 Cridland v. Marler (1893), 9 T. L. R. 529 149 Cripps r. Judge (1884), 13 Q. B. D. 583 ; 53 L. J. Q. B. 517 ; 51 L T. 182 ; 33 W. R. 351 632 Crispin v. Babbitt (1880), 81 N. Y. 516 299 Crocker v. Banks (1888), 4 T. L. R. 324 305 Crocker v. Knight, (1892) 1 Q. B. 702 ; 61 L. J. Q. B. 466 ; 66 L. T. 590 ; 40 W. R. 353 579, 581, 590, 592 Crocker v. Molyneux (1828), 3 C. & P. 470 121 Crofts i\ Alison (1821), 4 B. & Aid. 590 ; 23 R. R. 407 245, 267 Crofton ('. Poole (1830), 1 B. & Ad. 508 210 Crossan v. Caledon (1906), W. N. 104 088 TABLE OF CASES. XXlll PAGE Crossfield v. Tanian, (1900) 2 Q. B. 629 ; 69 L. J. Q. B. 790 ; 82 L. T. 813 ; 48 W. R. 609 6S ' Crowther v. Ramsbottom (1798), 7 T. R. 654 184 Crowther v. West Riding, &c., (1904) 1 K. B. 232 ; 73 L. J. K. B. 71 ; 52 W. R. 374 ; 68 J. P. 122 ^^^ Cuckson V. Stones (1858), 1 E. & E. 248 ; 28 L. J. Q. B. 25 ; 7 W. R. 134. . . . 181, 182, 183 CuUon V. ThompHoii (1862), 4 Macq. 424 ; 6 L. T. 870 227 Cults V. Ward (1867), L. R. 2 Q. B. 357 : 36 L. J. Q. B. 161 ; 15 L. T. 614 . . 340 Cuming V. Hill (1819), 3 B. & Aid. 59 ; 22 R. R. 305 1^0 Cundy v. Lecocq (1884), 13 Q. B. D. 207 ; 53 L. J. M. C. 125 ; 51 L. T. 265 ; 32 W. R. 769 ^'' Cunningham v. Fonblanque (1833), 6 C. & P. 44 177 Curran f. Treleaven, (1891) 2 Q. B. 545 ; 61 L. J. M. C. 9 ; 65 L. T. 573 ; 7 T. L. R. 652 ^99 Currie r. Misa (1875), L. R. 10 Ex. 162 ; 44 L. J. Ex. 99 ; 35 L. T. 414 ; 24 W. R. 1049 ^'^ Cussons V. Skinner (1843), 11 M. & W. 161 ; 12 L. J. Ex. 347 172, 184 Cuthbertsou v. Parsons (1852), 12 C. B. 304 ; 21 L. J. C. P. 165 ; 16 Jur. 860. . 250 Cutler V. Turner (1874), L. R. 9 Q. B. 502; 43 L. J. M. C. 124 ; 30 L. T. 706 ; 22 VV. R. 840 Cutter V. Powell (1795), 6 T. R. 320 ; 2 Smith, L. C. 1 ; 3 R. R. 185 ... .117, 119, 120, 159, 619 Cutts V. Ward (1867), L. R. 2 Q. B. 357 ; 36 L. J. Q. B. 161 ; 15 L. T. 614 15 W. R. 445 616 I 9 340 Dakin v. Watson (1841), 2 Cr. & D. 224 88 Dallingerv. St. Albyn(1879), 41 L. T. 406 116 Dahymple v. Mcaill (1813), Hume, Sc. Sess. Cas. 387 245 Dalston V. Janson (7 WiU. III.), 1 Salk. 10 226 Dalton V. Angus (1881), 6 A. C. 740 ; 50 L. J. Q. B. 689 ; 44 L. T. 844 ; 30 W. R. 196 253, 254, 255, 256 Dalton V. S. E. Rail. Co. (1858), 4 C. B. (N. S.) 296 ; 27 L. J. C. P. 227 ; 4 Jur. (N. S.) 711 ^^^ Dalyell v. Tyrer (1858), E. B. & E. 899 ; 28 L. J. Q. B. 52 259 Daniel v. Ocean Coal Co., (1900) 2 Q. B. 250 ; 09 L. J. Q. B. 567 ; 82 L. T. 523 ; 48 W. R. 467 ; 64 J. P. 436 684 Danube Rail. Co. v. Xenos (1861), 11 C. B. (N. S.) 152 ; 31 L. J. C. P. 84 ; 5 L. T. 527 ^^^ Darlington i-. Roscoe, (1907) 1 K. B. 219; 76 L. J. K. B. 371 ; 96 L. T. 179; 23 T. L. R. 167 ^^" Darlow v. Edwards (1862), I H. & C. 547 ; 32 L. J. Ex. 51 ; 6 L. T. 905 ... . 9 Daubigny v. Duval (1794), 5 T. R. 604 163, 168 Daugars v. Rivaz (1860), 2iJ L. J. Ch. 685 ; 8 W. R. 225 163 Daun V. Simmins (1880), 44 J. P. 284 215 Davey v. L. ic S. W. Rail. Co. (1883), 12 Q. B. D. 70 ; 53 L. J. Q. B. 58 ; 49 L. T. 739 306 Davey v. Shannon (1879), 4 Ex. D. 81 ; 48 L. J. Ex. 459 ; 40 L. T. 628 ; 27 W. R. 599 82 Davidson v. Hill, (1901) 2 K. B. 606 ; 70 L. J. K. B. 788 ; 85 L. T. 118 ; ^^ W. R. 630 °^'5 Davies v. Berwick (1861;, 3 E. & E. 549 ; 30 L. J. M. C. 84 ; 3 L. T. 697 ; 9 W. R. 334 ^17, 618 XXIV TABLE OF CASES. PAGE Davies r. Davies (1839), 9 C. & P. 87 112 Davies r. Davies (1«S7), 36 C. D. 359 ; 56 L. J. Ch. 962 ; 58 L. T. 209 ; 36 W. R. 86 105 Davies v. England (1864), 33 L. J. Q. B. 321 ; 10 Jur. (N. S.) 1235 296, 310 Davies v. Lowen (1891), 64 L. T. 655 ; 7 T. L. R. 496 105 Davies v. Makuna (1885), 29 C. D. 59G ; 54 L. J. Ch. 1148 ; 52 L. T. 472 ; 33 W. R. 668 98 Davies v. Rhyquiey Iron Co. (1900), 16 Times L. R. 329 653 Davies v. Williams (1847), 10 Q. B. 725 ; 16 L. J. Q. B. 369 ; 1 1 Jvir. 750. . 198, 203 Davis, Ex parte (1794), 5 T. R. 715 63 Davis V. Davis, (1894) 1 Ch. 393 ; 63 L. J. Ch. 219 ; 70 L. T. 265 ; 42 W. R. 312 44, 53 Davis v. Goodenow, 27 Vt. 715 112 Davis *;. Marshall (1861), 4 L. T. 216 ; 9 AY. R. 520 136, 142 Davis V. Mason (1793), 5 T. R. 118 102, 104 Davis t;. Nest (1833), 6 C. & P. 167 318 Day v. Boswell (1808), 1 Camp. 329 51 Day r. Bream (1837), 2 M. & Rob. 54 ; 62 R. R. 778 227 Dean and Gilbert's Case (1872), 41 L. J. Ch. 476 ; 26 L. T. 467 159 Dean v. Peel (1804), 5 East, 45 ; 7 R. R. 653 198, 203 De Begnis v. Armistead (1833), 10 Bing. 107 98 Debenham v. Mellon (1880), 5 Q. B. D. 394 ; 6 A. C. 24 ; 50 L. J. Q. B. 155 ; 43L. T. 673; 29 W. R. 141 67 De Francesco v. Bamiim (1890), 45 C. D. 430 ; 60 L. J. Ch. 63 ; 63 L. T. 438 ; 39 W. R. 5 52, 60, 63, 165, 194, 199 Degg i'. Midland Rail. Co. (1857), 1 H. & N. 773; 20 L. J. Ex. 171; 28 L. T. 357 ; 5 W. R. 364 289, 290, 307 Delhat^se, Ex parte (1878), 7 C. D. 511 ; 47 L. J. Q. B. 65 ; 38 L. T. 106 ; 26 W. R. 338 44 De Mattos v. Gibson (1859), 4 D. & J. 276 ; 28 L. J. Ch. 498 164 Denaby, &c. Collieries v. Yorks. Miners, (1906) A. C. 384 ; 75 L. J. K. B. 961 ; 95 L. T. 561 580, 607 Derby v. Humber (1867), L. R. 2 0. P. 247 150 Derbyshire v. Houliston, (1897) 1 Q. B. 772 278 De Serisay v. O'Brien (1736), Barnes, 375 1 39 Deslandes v. Gregory (1860), 2 E. & E. 602 224 Devonald v. Ro.sser, (1906) 2 K. B. 728 ; 75 L. J. K. B. 688 ; 93 L. T. 274 . . 96 Dewar v. Tasker (1907), 23 T. L. R. 259 20 Dewhurst, Ex parte (1871), L. R. 7 Ch. 185 ; 41 L. J. Q. B. 18 ; 25 L. T. (N. S.) 731 ; 20 W. R. 172 210 Dibden v. Swan (1793), 1 Esp. 27 575 Dickenson v. Fletcher (1873), L. R. 9 C. P. 1 ; 43 L. J. M. C. 25 ; 29 L. T. 540 ^77, 416 Dickenson v. Handsley (1889), 60 L. T. (N. S.) 567 388, 424 Dickinson v. N. E. Rail. Co. (1863), 2 H. & C. 735 ; 33 L. J. Ex. 91 645 Dickson v. Renter (1878), 3 C. P. D. 1 ; 4 7 L. J. C. P. 1 ; 37 L. T. 370 ; 26 W. R. 2 : 226 Dillon V. Bath (1899), 15 T. L. R. 393 90 Dixon V. Birch (1873), L. R. 8 Ex. 135 ; 42 L. J. Ex. 135 ; 28 L. T. 360 ; 21 W. R. 443 236 Dixon V. Loudon Small Arms Co. (1876), 1 A. C. 632 ; 46 L. J. Q. B. 617 ; 35 L. T. 559 ; 25 W. R. 142 38 Dixon V. Parsons (1858), 1 F. & F. 24 155 TABLE OF CASES. XXV PAGE Dobbin v. Foster (1844), 1 C. & K. 323 206 Dobson V. Uollis (1856), 1 H. & N. 81 ; 25 L. J. Ex. 267 ; 4 W. R. 512 83 Dob.son V. Joues (1844), 5 M. & G. 112 48 Dodgson's Case (1849), 3 De G. & Sm. 85 234 Doe V. Baytup (1835), 3 A. & E. 188 ... 42 Doe V. Birchmore (1839), 9 A. A: E. 662 42 Doe V. Jones (1830), 10 B. & C. 718 48 Doe V. McKaeg (1830), 10 B. & C. 721 42, 48 Doel V. Sheppard (1856), 5 E. & B. 856 ; 25 L. J. Q. B. 124 310, 473 Doherty v. Allman (1878), 3 A. C. 709 ; 39 L. T. 129 ; 26 W. R. 513 165 Dolan V. Anderson (1885), 12 R. 804 635 Donaldson v. Williams a833), 1 Cr. & M. 345 ; 2 L.J. Ex. 173 ; 3 Tyrw. 371. 74 Douuell V. Bennett (1883), 22 C. D. 835; 52 L. J. Ch. 414; 48 L. T. 68; 31 W. R. 316 165 Donovan v. Laing, (1893) 1 Q. B. 029 ; 63 L. J. Q. B. 25 ; 68 L. T. 512 ; 41 W. R. 455 15, 19, 20, 22, 23, 259, 675 Dothie V. Robert Macandrew & Co., (1908) 1 K. B. 883 ; 77 L. J. K. B. 388 ; 98 L. T. 495 649 Dottridge v. Crook (1907), 23 T. L. R. G44 103 Doughty V. Firbank (1883), 10 Q. B. D. 358 ; 52 L. J. Q. B. 480 ; 48 L. T. 530 636 Dowden v. Book, (1904) 1 K. B. 45 ; 73 L. J. K. B. 38; 89 L. T. 688; 52 W. R. 97 101 Down r. Pinto (18r^4), 9 Exch. 327 ; 23 L. J. Ex. 103 ; 2 W. R. 202 137, 142 DowniUiUi V. Jones (1845), 9 Jur. 454 223 Drax, Re (1887), 57 L. T. 475 9 Drew V. Numi (1879), 4 Q. B. D. 661 ; 48 L. J. Q. B. 591 ; 40 L. T. 671 ; 27 W. R. 810 73 Drury v. Defontaine (1808), 1 Taunt. 131 312 Dry V. Boswell (1808), 1 Camp. 329 51 Dublin and Wicklow Rail. Co. v. Black (1852), 8 Exch. 181 ; 22 L. J. Ex. 94 ; 7 Rail. Cas. 434 63 Dubowski r. Goldstein, (1896) 1 Q. B. 478; 6.3 L. J. Q. B. 397; 74 L. T. 180 ; 44 W. R. 436 104 Dugdale v. Lovering (1875), L. R. 10 C. P. 196 ; 44 L. J. C. P. 197 ; 32 L. T. 155 ; 23 W. R. 391 145 Duignan v. Walker (1859), 1 Jolins. 446 ; 28 L. J. Ch. 867 ; 7 W. R. 562 102 Duke V. Littleboy (1880), 49 L. J. Ch. 802 ; 43 L. T. 216 ; 28 W. R. 977. .579, 581 Duncan v. BlundeU (1820), 3 Sta. 6 123 Duncan r. Findlater (1839), 6 CI. & F. 894 266 Dunham r. Clare, (1902) 2 K. B. 292 ; 71 L. J. K. B. 683 ; 86 L. T. 751 ; 50 W. R 596 : 66 J. P. 612 679 Duim V. Macdonald, (1897) 1 Q. B. 555 ; 66 L. J. Q. B. 420 ; 76 L. T. 444 ; 45 W. R. 355 141. 224 Dunn V. Reg., (1896) 1 Q. B. 116 ; 65 L. J. Q. B. 279; 73 L. T. 695 ; 44 W. R. 243 141 Dunn V. Sayles (1844), 5 Q. B. 686; 13 L. J. Q. B. 159 93, 107 Dunston v. Imperial Gas Co. (1831), 5 B. & Ad. 125 ; 1 L. J. K. B. 49 92 Duranty's Case (1858), 26 Beav. 268 234 Dutton'i'. Marsh (1871), L. R. 6 Q. B. 361 ; 40 L. J. Q. B. 175 ; 24 L. T. 470 ; 9 W. R. 754 224 Dyer v. Muuday, (1895) 1 Q. B. 742 ; 64 L. J. Q. B. 448 ; 72 L. T. 448 ; 43 \V. l;. 440 232, 239, 241, 248, 270 XX vi TABLE OF CASES. PAGE Dynen v. Leach (1857), 26 L. J. Ex. 221 ; 5 W. R. 490 296, 309 Dyte V. St. Pancras Guardians (1872), 27 L. T. 342 75, 77 Eades v. Vandeput (1785), 5 East, 39, u. ; 4 Doug. 1 187, 199 Eager v. Grimwood (1847), 1 Exch. 61 ; 16 L. J. Ex. 236 ; 74 R. R. 584 .... 203 Earli;. Lubbock, (1905) 1 K. B. 253 ; 74 L. J. K. B. 121 ; 91 L. T. 830 ; 53 W. R. 145 232 Earratt v. Burghart (1828), 3 C. & P. 381 87 East Anglian Rail. Co. v. Lythgoe (1851), 2 L. M. & P. 221 ; 10 C. B. 726 ; 20 L. J. C. P. 84 175, 184 Eastern Countie.s Rail. Co. v. Broom (1851), 6 Exch. 314 ; 20 L. J. Ex. 196 ; 15 Jur. 297 234, 248, 267 East India Co. v. Hensley (1794), 1 E.sp. 112 217 East India Co. v. Vincent (1740), 2 Atk. 83 162 East Loudon Waterworks c. Bailey (1827), 4 Bing. 283 ; 12 Moore, 533 ; 5 L. J. C. P. 175 75 Eaton V. Western (1882), 9 Q. B. D. 636 ; 52 L. J. Q. B. 41 149, 150 Ecclesiastical Commissioners v. Merral (1869), L. R. 4 Ex. 162 : 38 L. J. Ex. 93 ; 20 L. T. 573 ; 17 W. R. 676 75 Eden's Case (1813), 2 M. & S. 226 62 Edmonds, Ex parte (1882), 51 L. J. Ch. 406 ; 46 L. T. 240 ; 30 ^Y . R. 432 . . 128 Edmondson v. Machell (1787), 2 T. R. 4 199, 203, 204 Edwards v. Godfrey, (1899) 2 Q. B. 333 ; 68 L. J. Q. B. 666 ; 80 L. T. 672 ; 47 W. R. 551 662 Edw^ards v. Levy (1860), 2 F. & F. 94 173, 180 Edwards v. L. & N. W. Rail. Co. (1870), 5 C. P. 445 ; 39 L. J. C. P. 241 ; 22 L. T. 656 ; 18 W. R. 834 231, 246, 268 Edwards r. Mackie (1848), 1 1 D. (2nd ser.) 67 178 Edwards v. Midland Rail. Co. (1880), 6 Q. B. D. 287 ; 50 L. J. Q. B. 281 ; 43 L. T. 694 ; 29 W. R. 609 234, 235, 270 Edwards v. Trevellick (1854), 4 E. & B. 59 ; 24 L. J. Q. H. 9 ; 2 W. R. 586 . . 170 Egerton v. Brownlow (1853), 4 H. L. C. 1 ; 18 Jur. 71 99 Ehrman r. Bart,holomew, (1898) 1 Ch. 671 ; 67 L. J. Ch. 319 ; 78 L. T. 646 ; 46 W. R. 509 164 Elderlon v. Emmens (1847), 6 C. B. 100 ; 17 L. J. C. P. 307 ; 13 C. B. 495 ; 4H. L. C. 024 107, 135 Eley V. Positive, &c. Ass. Co. (1876), 1 Ex. D. 20, 88 ; 45 L. J. Ex. 58, 451 ; 34 L. T. 190 84 EHn, The (1883), 8 P. D. 129 ; 52 L. J. Ad. 55 ; 49 L. T. 87 ; 31 W. R. 736 ; 5A8p. M. C. 120 169 Ellen r. G. N. Rail. Co. (1901), 49 W. R. 395 627 Ellen V. Topp (1851), 6 Exch. 424 ; 20 L. J. Ex. 241 ; 15 Jur. 451 149 Elliot V. Clayton (1851), 16 Q. B. 581 ; 20 L. J. Q. B. 217 ; 15 Jur. 293 210 Elliott V. Liggens, (1902) 2 K. B. 84; 71 L. J. K. B. 483; 87 L. T. 29; 50 W. R. 524 680 Ellis V. Cory, (1902) 1 K. B. 38 ; 71 L. J. K. B. 72 ; 85 L. T. 499 ; 50 W. R. 131 ; 66 J. P. 116 018 Ellis V. Ellis & Co., (1905) 1 K. B. 324 ; 74 L. J. K. B. 229 ; 92 L. T. 718 ; 53 W. R. 311 650, 669 Ellis V. Goulton, (1893) 1 Q. B. 350; 62 L. J. Q. B. 232; 68 L. T. 144; 41 W. R. 411 224 Ellis V. Hall (1885), 15 Q. B. D. 315 ; 64 L. J. Q. B. 518 ; 34 W. R. 16 297 TABLE OF CASES. XXVll FAQE Ellis V. L. & S. W. Rail. Co. (1857), 2 H. & N. 424 ; 26 L. J. Ex. 349 ; 5 W. R. 682 263 Ellis V. Sheffield Gas Co. (1853), 2 E. & B. 767 ; 23 L. J. Q. B. 42 ; 2 W. R. 19 250, 252 Elsee V. Gatward (1793), 5 T. R. 143 93 Elsworth V. AVoolmore (1803), 5 Esp. 84 86, 117 Emary r. Nolloth, (1903) 2 K. B. 264; 72 L. J. K. B. 620; 89 L. T. 100; 52 W. R. 107 275, 277 Eradenv. Carte (1880), 17 C. D. 169, 768; 51 L. J. Ch 41 ; 44 L. T. 636; 29 W. R. 600 211 Eminens v. Elderton (1853), 4 11. L. C. 624 107, 108, 157 Emmens v. Pottle (1885), 16 Q. B. D. 354 ; 55 L. J. Q. B. 51 ; 53 L. T. 808; 34 W. R. 116 227 Enchautress, The (1825), I Hagg. (Adin.) 395 31 Eugclhart v. Farrant, (1897) 1 Q. B. 240 ; 66 L. J. Q. B. 122 ; 75 L. T. 617 ; 45 W. R. 179 23,242,261,270 Evans v. Hoare, (1892) 1 Q. B. 593; 61 L. J. Q. B. 470; 66 L. T. 345; 40 W. R. 442 63, 83 Evans c. Mostyn (1877), 2 C. P. D. 547; 47 L. J. M. C. 25; 36 L. T. 856 368, 381 Evans t;. Roe (1872), L. R. 7 C. P. 138; 26 L. T. 70 83, 143 Evans v. Walton (1867), L. R. 2 C. P. 615 ; 36 L. J. P. C. 307 ; 17 L. T. 92 ; 15 W. R. 1062 194, 198, 199 Evans v. Ware, (1892) 3 Ch. 502 : 62 L. J. Ch. 256 ; 67 L. T. 285 63 Evans V. Wills (1876), 45 L. J. C. P. 420; 1 C. P. D. 229; 34 L. T. 679; 24 W. R. 883 616 Exeter, The (1799), 2 C. Rob. 261 124 BjTev. Smallpage (1750), 2 Barr. 1060 47 Fairman v. Oakford (1860), 2 H. & N. 635 ; 29 L. J. Ex. 459 135. 143 Farebrother v. Ansley (1808), 1 Camp. 344 144 Farmer v. Wilson (1900), 16 Times L. R. 309 600 Farnell v. Bowman (1887), 12 A. C. 643 ; 51 L. J. P. C. 72 ; 57 L. T. 318 . . . 262 Farnsworth v. Garrard (1807), 1 Camp. 38 ; 10 R. R. 624 117, 123 Farquhar v. Neish (1890), 17 R. 716 153, 154 Farquhar.sou v. King, (1901) 2 K. B. 69 ; 71 L. J. Q. B. 667 ; 86 L. T. 810 ; 51 W. R. 94 217 Farrer v. Close (1869), L. R. 4 Q. B. 602 ; '.iS L. J. M. C. 132 ; 20 L. T. 802 ; 17 W. R. 1129 570, 577, 581, 582, 584 FaiTow V. Wilson (1869), L. R. 4 C. P. 744 ; 38 L. J. C. P. 326 ; 20 L. T. 810 ; 18 W. R. 43 205 Farwell v. Boston Rail. Co. (1842), 4 Met. (Mass.), 49 279, 283, 306 Faulds r. Towusend (1861), 23 D. 437 ; 33 Jur. 224 271 Faviell v. E. C. R. (1848), 2 Exch. 344 ; 17 L. J. Ex. 223 ; 6 Dowl. & L. 54. . 77 Favvcett v. Beavres (1671), 2 Lev. 63 199 Fawcett u. Cash (1834), 5 B. & Ad. 904 ; 3 L. J. K. B. 113 .... 135, 138, 140, 142 Featherstone v. Hutchinson (o2 Eliz.), Cro. Eliz. 199 144 Eechter v. Montgomery (1863), 33 Beav. 22 96, 164 FeUows V. Wood (1888), 59 L. T. 513 62 Feltham r. England (1866), L. R. 2 Q. B. 33 ; 36 L. J. Q. B. 14 ; 7 B. & S. 676 ; 15 W. R. 151 281, 297, 298, 307 Fenn v. Harrison (1790), 3 T. R. 760 217 XXviii TABLE OF CASES. PAQK Fenn v. Miller, (1900) 1 Q. B. 788; 69 L. J. Q. B. 439; 82 L. T. 284 ; 48 W. R. 369 ; 64 J. P. 356 665 Feunai'. Clare, (1895) I Q. B. 199; 64 L. J. Q. B. 238; 15 R. 220 305 Fennell r. Ridler (1826), 5 B. & C. 406 ; 8 D. & R. 204 312 Feiiton V. Thorley, (1903) A. C. 443 ; 72 L. J. K. B. 787 ; 89 L. T. 314 ; 52 W. R. 81 G;)D Ferns r. Carr (1885), 28 C. D. 409 ; 54 L. J. Ch. 478 ; 52 L. T. 348 ; 33 W. R. 604 150 Fewiugs V. Tisdal (1845), 1 Exch. 295 ; 5 D. & L. 196 ; 17 L. J. Ex. 18 ; 11 Jur. 977 1-^7 Field r. Longden, (1902) 1 K. B. 47 : 71 L. J- K. B. 120 ; 85 L. T. 571 ; 50 W. R. 212 ; 66 J. P. 291 661 Fillieul V. Armstrong (1837), 7 A. & E. 557 ; 2 N. & P. 406 ; 7 L. J. Q. B. 7 . . 173 Finucann v. Small (1795), ] Esp. 315 236 Fisher r. Jones (1863), 32 L. J. M. C. 177 ; 13 C. B. (N. S.) 496 ; 8 L. T. 53 ; 11 W. R. 426 :^38 Fi-sher r. Marsh (1865 , 34 L. J. Q. B. 177 ; 6 B. & S. 411 ; 12 L. T. 604 : 13 W. R. 834 223 Fisher v. Mowbray (1807), 8 East, 330 61 Fitzpatrick v. Evans, (1902) 1 K. B. 505 ; 71 L. J. K. B. 302 ; SO L. T. 141 ; 50 W. R. 290 5, 13, 618 Flarty v. Odium (1790), 3 T. R. 681 100 Fletcher i\ Krell (1873), 42 L. J. Q. B. 55 ; 28 L. T. 105 179 Fletcher r. London United Tramways, (1902) 2 K. B. 269 ; 71 L. J. K. B. 653 ; 86 L. T. 700 ; 50 W. R. 597 636 Fletcher v. Peto (1862), 3 F. & F. 368 308 Fletcher v. Rylands (1868), L. R. 3 H. L. 380 ; 37 L. J. Ex. 161 ; 19 L. T. 220 ; 14 W. R. 799 254, 633 Flood V. Jackson. {See Allen r. Flood.) Florence, The (1852), 16 Jur. 572 119 Flower v. L. & N. W. Rail. Co., (1894) 2 Q. B. 65 ; 63 L. J. Q. B. 547 : 70 L. T. 829 ; 42 W. R. 519 60 Flower r. Pennsylvania Rail. Co. (1871), 69 Pa. St. 210 290 Foord V. Morley (1859), 1 F. & F. 496 110, 112 Forbes r. Cochrane (1824), 2 B. & C. 448 ; 26 R. R. 402 27, 28, 199 Forbes v. Johues (1802), 4 Esp. 97 97 Forbes v. Lee Conservancy (1879), 4 Ex. D. 116 ; 48 L. J. Ex. 402 ; 27 W. R. 688 263 Forbes v. Milne (1827), 6 S. 79 115 Fold f. Barnes (1885), 16 Q. B. D. 254 ; 55 L. J. Q. B. 24; 53 L. T. 675 ; 34 W. R. 78 ; 50 J. P. 37 43 Ford V. Harington (1869), 5 C. P. 282 ; 39 L. J. C. P. 107 ; 21 L. T. 609 ; IS W. R. 289 49 Foreman v. Canterbury (1871), L. R. 6 Q. B. 214 ; 40 L. J. Q. B. 138 ; 24 L. i . 385 ; 19 W. R. 719 268 Fores v. Wilson (1791), Peake, 78 194, 198, 199, 203, 204 Forgan v. Burke (1861), 12 Ir. C. L. 495 137 Fossett V. Breer (1671), 3 Keb. 59 199 Foster v. Charles (1830), 6 Bing. 396; 7 Bing. 105; 4 M. & P. 61 ; 8 L. J. (O. S.)C. P. 118 156 Foster v. Diphwys Slate Co. (1887), 18 Q. B. D. 428 ; 56 L. J. M. C. 21 .... 373 Foster v. Fyfe, (1896) 2 Q. B. 104 ; 65 L. J. M. C. 184 ; 74 L. T. 784 ; 44 W. R. 524 380 Foster v. Jackson (Car. II.), Hob. 61 29 TABLE OF CASES. XXIX PAGE Foster v. North Hendre Mining Co., (1891) I Q. B. 71 ; GO L. J. M. C. 6 ; 63 L. T. 458 .374 Foster v. Owen, (1892) G2 L. J. M. C. 7 ; 07 L. T. 712 ; 41 W. R. 240 368 Foster v. Stewart (1814), 3 M. & S. 191 ; 15 R. R. 459 187 Foulger v. Newcomb (1867), L. R. 2 Ex. 327 ; 36 L. J. Ex. 1G9 ; IG L. T. 595 ; 15 W. R. 1181 156 Fouutain r. Boodle (1842), 3 Q. B. 5 ; Gl R. R. 121 153, 154 Fowler v. Down (1707), 1 B. & P. 40 34 Fowler r. Lock (1872), L. K. 7 C. P. 272 : ol L. J. C. P. 104 ; 30 L. T. 810; 23 W. R. 415 35 Fox, Ex parte (1886), 17 Q. B. D. 4 ; 55 L. J. Q. B. 288 ; 54 L. T. 307 ; 34 W. R. 535 127 Fox V. Dally (1874), 10 C. P. 285 ; 44 L. J. C. P. 42 ; 31 L. T. 478 ; 23 W. R. 244 50 Fox Bourue f. Vernon (18':>4), 10 Times L. R. 647 140 Foxall V. International, &c. (18G7), IG L. T. (N. S.) 637 140 Franklin v. Hosier (1821), 4 B. & Aid. 341 166, 168 Eraser v. Freeman (1871), 43 N. Y. 566 271 Frazer v. Hatton (1857), 2 C. B. (N. S.) 512 ; 26 L. J. C. P. 226 117 Frecheville v. Sonden (1883), 48 L. T. (N. S.) 612 375 French v. Brookes (1830), G Bing. 354 : 4 M. & P. 11 ; 8 L. J. (O. S.) C. P. 91 . 158 French v. Underwood (1903), 19 Times L. R. 41G 676 Frost V. Knight (1872), L. R. 7 Ex. Ill : 41 L. J. Ex. 78; 26 L. T. 77; 20 W. R. 47 1 160 Fryer r. Kinnersley (1863), 15 C. B. (N. S.) 422 ; 33 L. J. C. P. 96 ; 9 L. T. 415 156 Fullers v. Squire, (1901) 2 K. B. 209 ; 70 L. J. K. B. 689 ; 85 L. T 242 ; 49 W. R. 683 539 Furlong v. South London Tramways (1884), Cab. & El. 31G ; 48 J. P. 329. .238, 270 Gadd V. Houghton (1876), 1 Ex. D. 357; 46 L. J. Ex. 71 ; 35 L. T. 222; 24 W. R. 975 224 Gallagher r. Piper (1864), 16 C. B. (N. S.) GG9 ; 33 L. J. C. P. 329 ; 10 L. R. 718 ; 12 W. R. 988 280, 282, 307 Gairibier v. Lydford (1854), 3 E. & B. 346 ; 23 L. J. M. C. 69 ; 2 C. L. R. 951 ; 2 W. R. 226 49, 50 Gandell v. Pontigny ( 1816), 4 Camp. 375 160 Gardner v. Slade (1849), 13 Q. B. 796 ; 18 L. J. Q. B. 336 153, 155 Garrett v. Taylor (18 Jac. I.), Cro. Jac. 567 573 Garth r. Howard (1832), 8 Bing. 451 ; 5 C. •& P. 346 ; 1 L. J. C. P. 129 222 Gates V. Bill, (1902) 2 K. B. 38 ; 71 L. J. K. B. 702 ; 87 L. T. 288 ; 50 W. R. 546 36 Gayford r. Nicholls (1854), 9 Exch. 702 ; 23 L. J. Ex. 205 ; 2 C. L. R. 1066. . 249 Gayforth v. Fearon (1787), 1 H. Bl. 328 99 Geake v. Jackson (1867), 36 L. J. C. P. 108 ; 15 L. T. 509 : 15 W. R. 338 .... 221 Geddes v. Wallace (1820), 2 Bligh, 270 51 Gee, Ex parte (1839), Mont. & C. 99 133 Gelly V. ClevfS (1694), Ld. Raymond, 147 27 General Billposting Co. v. Atkinson (1908), 24 Times L. R. 285 105 Geuer:tl Steam Navigation Co. v. British, &c. (1869), L. R. 4 Ex. 238 ; 38 L. J. Ex 97 ; 20 L. T. 581 259 George and Richard, The (1871), L. R. 3 A. & E. 466 ; 24 L. T. (N. S.) 717 ; 20 W. R. 245 645 XXX TABLE OF CASES. PAGE George Home, The (1825), 1 Hagg. 370 122 Gibbou r. Phillips (1894), 64 L. J. M. C. 42 413 Gibbs r. G. W. Rail. Co. (1884), 12 Q. B. D. 208 ; o3 L. J. Q. B. 543 ; 50 L. T. 7 ; 32 W. R. 329 G36 Giblan v. National Amalgamated, &c., (1903) 2 K. B. 600; 72 L. J. K. B. 907 ; 89 L. T. 386 197, 574, 580, 599, 607 Gibson v. Carruthers (1841), 8 M. & W. 343 ; 11 L. J. Ex. 138 209 Gibson v. Lawson, (1891) 2 Q. B. 545 ; 61 L. J. M. C. 9 ; 65 L. T. 573 ; 7 T. L. R. 651 573, 599 Gibson r. Wormald, (1904) 2 K. B. 40 ; 73 L. J. K. B. 491 ; 91 L. T. 7 : 52 W. R. 661 ; 68 J. P. 382 689 Gilbert r. Halpiu, 3 Ir. Jur. (N. S.) 300 38 Gilbert v. Trinity House (1886), 17 Q. B. D. 795 ; 56 L. J. Q. B. 85 ; 35 W. R. 30 202, 618, 631 Giles r. Belford Smith, (1903) 1 K. B. 843 ; 72 L. J. K. B. 569 ; 88 L. T. 754 ; 51 W. R. 692 682 Giles V. Taff Vale RaH. Co. (1853), 2 E. & B. 822 ; 23 L. J. Q. B. 43 . . . .240, 267 Gill, E.X parte (1806), 7 East, 376 63, 200 Gill r. Thornycroft (1894), 10 Times L. R. 316 633 Gillard v. Lan(;8. & Yorks. Rail. Co. (1S48), 12 L. T. (0. S.) 356 646 Gillett V. Fairbauk (1887), 3 Tirae^ L. R. 618 625 Gillis V. McGhoo (1863), 13 Ir. Ch. 48 163 Oilman r. Eastern Rail. Co. (1866), 95 Mass. 433 ; 90 Am. Dec. 210 292 Gilpin r. Fowler (1854), 9 Exch. 615 ; 23 L. J. Ex. 152 ; 2 W. R. 272 156 Girardy r. Richardson (1793), 1 Esp. 13 98 Giraud r. Richmond (1846), 2 C. B. 835 ; 15 L. J. C. P. 180 ; 10 Jur. 360. .. . 85 Glamorgan Coal Co. v. South Wales Miners, (1905) A. C. 239 ; 74 L. J. K. B. 525; 92L. T. 710; 53 W. R. 593 196, 574, 607 Glasgow Coal Co. v. Sneddon (1905), 7 F. 485 651 Glasgow (Provost) v. Farie (1888), 13 A. C. 657 ; 58 L. J. P. C. 33 ; 60 L. T. 274 ; 37 W. R. 627 364 Glasgow Tramway Co. v. Dempsay (1877), 3 Coup. 440 613 Goff V. G. N. Rail. Co. (1861), 30 L. J. Q. B. 148; 3 E. & E. 672 ; 3 L. T. (N. S.) 850 240, 247, 267 Gold.stein v. Holliugsworth, (1904) 2 K. B. 578 ; 73 L. J. K. B. 826 ; 91 L. T. 85 ; 68 J. P. 383 516 Goldstein t: Vaughau, (1897) 1 Q. B. 549 ; 66 L. J. Q. B. 380 ; 76 L. T. 262 ; 45 W. R. 399 493 Gondolier, The (1835), 3 Hagg. 190 124 Goodman v. Kennell (1828), 3 C. & P. 167 267 Goodman r. Pocock (1850), 15 Q. B. 576 ; 19 L. J. Q. B. 410 ; 14 Jur. 1042 . . 158, 160 Gordon, Ex parte (1855), 25 L. J. M. C. 12 ; 3 W. R. 568 017 Gordon v. Evans, (1894) 1 Q. B. 248 ; 63 L. J. Q. B. 329 ; 70 L. T. 70 ; 42 W. R. 193 131 Gordon v. Harper (1796), 7 T. R. 9 ; 4 R R. 369 33, 34 Gordon v. Jennings (1882), 9 Q. B. 1). 45 ; 51 L. J. Q. B. 417 ; 46 L. T. 534 ; 30 W. R. 704 130 Gordon v. Potter (1859), 1 F. & F. 614 138, 157 Gordon v. Rolt (1849), 4 Exch. 365 ; 18 L. J. Ex. 432 ; 7 D. & L. 87 241, 267 Gore r. Gibson (1845), 13 M. & W. 623 ; 14 L. J. Ex. 151 ; 9 Jur. 140 73 Gough, Ex parte (1833), 3 D. & C. 189 133 Gough V. F'indoti (USH), 7 Exch. 50 ; 21 L. J. Ex. 58 132 Gould V. Haynes (1889), 59 L. J. M. C. 9 ; 61 L. T. 732 ; 54 J. P. 405 338 TABLE OF CASES. XXXI PAGE Gould V. Webb (1855), 4 E. & B. 933 ; 24 L. J. Q. B. "iOo ; 3 W. R. 399. . 172, l'J2 Grace v. Smith (1775), 2 W. Bl. 998 51 Graeme v. Wroughton (1855), 1 1 Exch. 146 ; 24 L. J. Ex. 265 ; 3 W. R. 509. . 100 Grafton r. Arniitage (1845), 2 C. B. 336 ; 15 L. J. C. P. 20 ; 9 Jur. 1039 37 Graham v. Publie WorkH Commissioners, (1901) 2 K. B. 781 ; 70 L. .1. K. B. 860 ; So L. T. 96 ; 50 W. R. 122 224 Graham v. Thomson (1822), 1 S. 287 147 Grainger v. Avnsley (1880), 6 Q. B. D. 182 ; 50 L. .7. M. C. 48 ; 43 L T 608 • 29 W. R. 242 613, 618 Grammar v. Nixon (1725), 1 Str. 653 261 Grant v. Muddox (1846), 15 M. & "W. 737 ; 16 L. J. Ex. 227 85 Grant r. West Cilder Oil Co. (1872), 9 8. L. R. 254 252 Gratland v. Freeman (1799), 3 Esp. 85 218 Gravely v. Barnard (1874), 18 Eq. 518 ; 43 L. J. Ch. 659 ; 30 L. T. 8*33 104 Gray t'. Cookson (1812), 16 East, 13 63 Gray v. Pullen (1864), 5 B. & S. 970 ; 34 L. J. Q. B. 265 ; 11 L. T. 569 ; 13 W. R. 257 252, 2.56 Graydon, Re, (1896) 1 Q. B. 417 ; 65 L. .J. Q. B. 328 ; 74 L. T. 175 ; 4t W. R. 495 210 Great Eastern Steamship Co., Re (1885), 5 Asp. M. C. 511 86 Great Northern Rail. Co. v. Dawson, (1905) 1 K. B. 331 ; 74 L. J. K. B. 271 ; 92 L. T. 145 ; 53 W. R. 309 683 Great Western Rail. Co. v. Rimell (1856), 18 C. B 575 ; 27 L. J. C. P. 201 . . 237 Great Western Rail. Co. r. Willis (1865), 34 L. J. Ch. 195 ; 18 C. B. (N. S ) 748 ; 1 2 L. T. 349 222 Green r. Britten, (1904) 1 K. B. 350; 73 L. J. K. B. 126; 89 L. T. 713 • 52 W. R. 198 ; 68 J. P. 139 .518 Green v. London General Omnibus Co. (1859), 7 C. B. (N. S.) 290 ; 29 L. .7. C P 13 ; 2 L. T. 95 ; 8 W. R. 88 234, 235 Green v. Price (1845), 16 M. & W. 346 ; 14 L. J. Ex. 105 ; 16 L. J. Ex. 108. . 105 Greenhalgh v. Carnarvon Coal Co. (1891), 8 Times L. R. 31 628 Greenhara v. Gray (1855), 4 Ir. C. L. R. 501 51 Gregory v. Brunswick (1844), 6 M. & G. 853 ; 1 D. & L. 518 574, 575 Gregory v. Hill (1869), 8 R. 282 271 Gregorj r. Piper (1829), 9 B. & C. 591 ; 4 M. & Ry. 500 ; 33 R. R. 268 . . 267, 278 Gregson v. Watson (1876), 34 L. T. (N. S.) 143 619 Grellier, Ex parte (1831), Mont. 264 133 Grenfell r. Windsor (Dean) (1846), 2 Beav. 544 100 Grenville v. College of Phy.siciaus (12 Will. III.), 12 Mod. 386 184 Griffith r. Tower Publishing Co., (1897) 1 Ch. 21 ; 66 L. J. Ch. 12 ; 75 L. T. 330 ; 45 W. R. 73 213 Griffiths t'. Dudley (Earl) (1882), 9 Q. B. D. 357 ; 51 L. J. Q. B. 543 ; 47 L. T. 10 ; 30 W. R. 7t*7 303, 626, 628 Griffiths r. Gidlow (1858), 3 H. & N. 648 ; 27 L. J. Ex. 404 299, 309 Griffiths V. London, &c. Docks (1884), 13 Q. B. D. 259; 53 L. J. Q. B 504- 51 L. T. 533 ; 33 W. R. 35 296, 309 Griffiths V. Teetgen (1854), 15 C. B. 344 ; 24 L. J. C. P. 35 ; 3 W. R. 1 1 . . 198, 203 Grimstead, Ex parte (1844), De G. 72 210 Grimston v. Cuuingham, (1894) 1 Q. B. 125 164 Griunellr. Wells (1844), 7 M. & G. 1033, 2 D. & L. 610; 14 L. J. C. P. 19 198, 203 Grizzle v. Frost (1863), 3 F. & F. 623 302 Groves v. Fuller (1888), 4 Times L. R. 474 296 Groves V. Wimboi-ne (Lord), (1898) 2 Q. B. 402 ; 67 L. J. Q. B. 862; 79 L. T. 284 ; 47 W. R. 87 289, 298, 473, 533 XXXll TABLE OF CASES. PAGE Griindon v. Master (1885), 1 Times L. R. 205 139 Gustaf, The (1862), Lush. 506 169 Guy Mannering, The (1882), 7 P. U. 132 ; 51 L. J. Adm. 57 : 46 L. T. 905 ; 30 W. R. 835 260 Gwilliam v. Twist, (1895) 2 Q. B. 84 ; 64 L. J. Q. B. 474; 72 L. T. 579 ; 43 W. R. 566 24, 216, 221, 240, 261, 269 Gylbert v. Fletcher (5 Car. I.), Cro. Car. 179 30, 62 Haddock v. Humphrey, (1900) 1 Q. B. 609 ; 69 L. J. Q. B. 327 ; 82 L. T. 72 ; 48 W. R. 292 ; 64 J. P. 86 518 Haig-h V. North Bierley Umon (1858), E. B. & E. 873; 28 L. J. Q. B. 62; 6 W. R. 679 77 Hall V. Chandler (22 Car. II.), 1 Mod. 271 62 Hall V. Davis (1825), 2 C. & P. 33 55 Hall V. Derby S. A. (1885), 16 Q. B. D. 163 ; 55 L. J. M. C. 21 ; 54 L. T. 175 ; 50 J. P. 278 89 Hall V. Hollander (1825), 4 B. & C. 660 : 4 L. J. (O. S.) K. B. 39 ; 7 D. & R. 133 194, 198 Hall V. Hopwood (1879), 49 L. J. M. C. 17 : 41 L. T. 797 407 Hall r. Johnsou (1865), 3 H. & C. 589 ; 34 L. J. Ex. 222 ; 11 L. T. 779 ; 13 W. R. 411 283, 307 Hall r. Pritchett (1877), 3 Q. B. D. 215 ; 47 T,. J. Q. B. 15 ; 37 L. T. G71 ; 26 W. R 95 130 Hall r. Smith (1824), 2 Biug. 156 ; 9 Moore, 477 263, 266 Hall r. Snowdon & Co., (1899) 1 Q. B. 593 ; 68 L. J. Q. B. 363 ; 80 L. T. 256 ; 47 W. R. 322 659 Hall r. Wright (1859), E. B. & E. 746, 793 ; 29 L. J. Q. B. 43 ; 1 L. T. 230 ; 8 W. R. 160 205 Halliwell-y. Counsell (1878), 38 L. T. 176 31, 189 Hamaker r. Blanchard (1879), 90 Penn. St Rep. 377 35 Hamilton v. McLean (1824), 3 D. & S. 379 171 Hamilton v. Pandorf (1885), 12 A. C. 518; 57 L. J. Q. B. 24 ; 57 L. T. 726; 36 W. R. 369 ; 52 J. P. 196 655 Hamlyn v. Wood, (1S!)1) 2 Q. B. 488 ; 61 L. J. Q. B. 734 ; 65 L. T. 286 ; 40 W. R. 24 96 Hammond v. Pulsford, (1895) 1 Q. B. 223 ; 64 L. J. M. C. 63 ; 71 L. T. 767 ; 43 W. R. 236 557 Hamon v. Falle (1879), 4 A. C. 247 ; 48 L. J. P. C. 45 156 Hamper, Ex parte (181 1), 17 Ves. 403 51 Hance v. Burnett (1880), 45 J. P. 54 451 Handford v. George Clark A: Co., (1907) 2 K. B. 409 ; 70 L. J. K. B. 958 ; 97 L. T. 124 518 Handley v. Moffatt (1872), 7 Ir. R. C. L. 104 152 Hands v. Slaney (1800), 8 T. R. 578 62 Haudyside v. Arthur, Eraser, M. & S. 7 1 180 Hanington v. Duchatel (1781), 1 Bro. C. C. 124 100 Hannaford v. Huun (1825), 2 C. & P. 148 31 Hanrahan r. Arduamult, &c. (1887). 22 L. R. Ir. 55 2i)5 Hanson v. Royden (1867), L. R. 3 C. P. 47 ; 37 L. J. C. P. 66 ; 17 L. T. 214 ; 16 W. R. 205 119 Hanson v. WaUer, (1901) 1 K. B. 390 ; 70 L. J. K. B. 231 ; 84 L. T. 91 ; 49 W. R. 445 246,270 Harcourt, Ex parte (1858), 31 L. T. 188 134 TABLE OF CASES. XXXlll PAGK Hardaker v. Idle District Council, (1896) 1 Q. B. 335 : 65 L. J. Q. B. 363 ; 74 L. T. 69 ; 44 W. R. 323 21, 38, 251, 255, 256, 257, 258 Ilaidcastle v. Jones (1862), 3 B. & S. 153 ; 32 L. J. M. C. 49 539 Hardy v. Ryle (1829), 9 B. & C. 603 25, 617 Harkius v. Smith (1841), 16 F. 938 207 Harmor v. Cornelius (1858), 5 C. B. (N. S.) 236; 28 L. J. C. P. 85 ; 4 Jur. 1110; 6 W. R. 749 1^0 Harmer v. Killing (1804), 5 Esp. 102 «« Harms i: Parsons (1862), 32 Beav. 328 ; 32 L. J. Ch. 247; 7 L. T. 815; 11 W. R. 250 ^^'^ Harper v. Luffkin (1S27), 7 B. & C. 387 ; 61 L. J. (Q. S.) K. B. 23 ; 1 M. & Rv. 1 66 "^03 Harper r. Williams (1843), 4 Q. B. (N. S.) 219 ; 12 L. J. Q. B. 227 224 Harrington v. Victoria Dock (1878), 3 Q. B. D. 549 ; 47 L. J. Q. B. 594; 39 L. T. 120; 26 W. R. 740 97 Harris, Ex parte (1845), 14 L. J. Q. B. 25 ; 1 De G. 165 134, 183 Harris v. Butler (1837), 2 M. & W. 539 ; 6 L. J. Ex. 133 ; M. & H. 117 203 Harris v. Carter (1851), 3 E. & B. 559 ; 23 L. J. Q. B. 21'5 ; 2 W. R. 409 .117, 118 Harris v. Perry & Co., (1903) 2 K. B. 219 ; 72 L. J. K. B. 725 ; 89 L. T. 174. . 244 Harris v. Thompson (1853), 13 C B. 333 1'''4 Harris v. Watson (1791), 1 Peake, 102 ; 3 R. R. 654 117 Harrison v. Bush (1855), 5 E. & B. 344 ; 25 L. J. Q. B. 25 ; 3 W. R. 474. . 152, 156 Harrison r. James (1862), 7 H. & N. 804 ; 31 L. J. Ex. 248 87 Harrison v. Leaper (1862), 5 L. T. (N. S.) 640 276 Harrison v. Whitaker (1899), 16 Times L. R 651, 653 Harrold v. Watney, (1898) 2 Q. B. 320 ; 67 L. J. Q. B. 771 ; 78 L. T. 788 ; 46 W. R. 642 305 Hart V. Eldridge (1774), Cowp. 54 19-i Hart V. Prater (1837), 1 Jur. 623 60 Hartland v. General Exchange Bank (1866), 14 L. T. 863 157 Hartley v. Cummings (1847), 5 C. B. 247 ; 17 L. J. C. P. 84 ; 2 C. & K. 433. . Hartley v. Harman (1840), 11 A. & E. 798 ; 9 L. J. Q. B. 179 157 Hartley v. Ponsonby (1857), 7 E. & B. 872 ; 26 L. J. Q. B. 322 ; 5 W. R. 659. . 118 Hartley's Trust, Re (1878), W. N. 104 ; 47 L. J. Ch. 610 ; 26 W. R. 590 . . . 9 Harwood and Abrahams, Re, (1901) 2 K. B. 304 ; 70 L. J. K. B. 746 ; 84 L. T. 85; 659 Haselerf. Lcmoyne (1858), 28 L. J. C. P. 103; 5 C. B. N. S. 530; 7 W. R. 14 261 Hassard v. Smith (1872), 6 Ir. Eq. 429 73 Hastie v. Atkinson (1894), 21 R. 62 388 Hastings v. Pearson, (1893) 1 Q. B. 62 ; 62 L. J. Q. B. 75 ; 67 L. T. 553 ; 41 W. R. 127 33 Haston v. Edinburgh Tramways (1887), 14 R. 621 633 Hatherway v. Argus Co., (1901) 1 Q. B. 96 ; 70 L. J. Q B. 12 ; 83 L. T. 465 ; 49 W. R. ] 13 682 Hawkins, Re (1880), 28 W. R. 240 132 Hawtayue v. Boui-ne (1841), 7 M. & W. 59.-) ; 10 L. J. Ex. 224 : 56 R. R. 806. . 217 Haydon v. Taylor (1863), 33 L. J. M. C. 30 ; 4 B. & S. 519 ; 9 L. T. 382 ; 12 W. R. 103 539 Hayes r. Richmond Asylum .... l-^l Hayman r. Rutfby School (1874), 18 Eq. 28 ; 43 L. J. Ch. 834 ; 30 L. T. 217 ; 22 W. R. 587 ^^^ Haynes v. Doman, (1899) 2 Ch. 13 ; 68 L. J. Ch. 419 ; SO L. T. 509. . 101. 102. 103 Haysler v. G. W. Rail. Co. (1881), 72 L. T. Jo. 120 636 M. ^ XXXIV TABLE OF CASES. PAGE Hazard v. Treadwell (1722), 1 Str. 506 220 Heald's Patent (1891), 8 R. P. C. 429 188 Heame v. Garton (1859), 28 L. J. M. C. 216 ; 2 E. & E. 66 ; 7 W. R. 566 277 Heaven r. Pender (1883), 11 Q. B. D. 503 ; 52 L. J. Q. B. 702 ; 49 L. T. 357 ; 47 J. P. 709 297 Hebditch v. Mcllwaine, (1894) 2 Q. B. 54 ; 63 L. J. Q. B. 587 ; 70 L. T. 826 ; 42 W. R. 422 153 Hodges r. Tagg (1872), L. R. 7 Ex. 283 ; 4 L. J. Ex. 169 ; 20 W. R. 976. . 198, 203 Hedgley v. Holt (1829), 4 C. & P. 104 115 Hedloy i>. Pinkney, (1892) 1 Q. B. 58 ; (1894) A. C. 222 ; 61 L. J. Q. B. 179 ; 66 L. T. 71 ; 40 W. R. 113 13, 19, 280, 281 Helmore v. Smith (1886), 35 C. D. 449 ; 56 L. J. Ch. 145 ; 56 L. T. 72 ; 35 W. R. 157 , 176 Helyear v. Hawke (1803), 5 Esp. 71 216, 220 Henderson v. Glasgow Corporation (1900), 2 F. 1127 539 Henderson r. Midland Rail. Co. (1871), 20 W. R. 23 ; 24 L. T. 881 235 Hensey v. White, (1900) 1 Q. B. 481 ; 69 L. J. Q. B. 188 ; 81 L. T. 767 ; 48 W. R. 257 ; 63 J. P. 804 655 Herbert v. Reid (1810), 16 Vea. 481 8 Hermann r. Charlesworth, (1905) 2 K. B. 123 ; 74 L. J. K. B. 620 ; 93 L. T. 284 ; 54 W. R. 22 99 Hern v. Nichols (1701), 1 Salk. 289 ; Holt, 462 233, 261, 265, 266 Heske v. Samuelson (1883), 12 Q. B. D. 30 ; 53 L. J. Q. B. 45 ; 49 L. T. 474.. 632 Hesketh v. Blanchard (1803), 4 East, 144 51 Hesse v. Stevenson (1803), 3 B. & P. 578 210 Hetherington r. N. E. Rail. Co. (1882), 9 Q. B. D. 160 ; 51 L. J. Q. B. 495 ; 30 W. R. 797 645 Hewlett V. Allen, (1894) A. C. 383; 63 L. J. Q. B. 608 ; 71 L. T. 94 ; 42 W. R. 670 ; 58 J. P. 700 335, 336, 341 Hewlett V. Hepburn (1899), 16 Times L. R. 56 .681, 682 Heyhoe v. Purge (1850), 9 C. B. 431 51 Hibbs V. Ross (1866), L. R. 1 Q. B. 534 : 35 L. J. Q. B. 193 ; 15 L. T. (N. S.) 67 ; 14 W. R. 914 215 Hickin, Ex parte (1850), 3 De G. & S. 662 ; 19 L. J. Q. B. 8 134 Hidden, Ex parte (1860), 3 L. T. (N. S.) 386 56 Higgins V. Butcher (1606), Yelv. 90 200, 201 Higgins V. Campbell, (1904) 1 K. B. 328 ; 73 L. J. K. B. 158; 89 L. T. OliO ; 5'.: W. R. 195 655 Higgins V. Hopkins (1848), 3 Exch. 166 ; 18 L. J. Ex. 113 ; 6 Rly. Cas. 75 . . 110, 111 Higgins V. Senior (1841), 8 M. & W. 834 ; 11 L. J. Ex. 119 224 Higgs, Re (1892), 66 L. T. 296 56 Highara v. Wright (1877), 2 C. P. D. 397 ; 46 L. J. M. C. 223 ; 37 L. T. 187.. 416 Hill V. Arbon (1876), 34 L. T. 125 60 Hill V. Begg (1908), 24 Times L. R. 711 649 Hill V. Thompson (1818), 8 Taunt. 375 ; 2 Moore, 424 188 HiUyard v. Mount (1828), 3 C. & P. 93 122 Hilton V. Eckersley (1856), 6 E & B. 47 ; 25 L. J. Q. B. 199 ; 4 W. R. 326. . 29, 569 Hinde v. Giay (1840), 1 M. & G. 195 ; 9 L. J. C. P. 253 ; 1 Scott, N. R. 123 . . 102 Hindle v. Birtwhistle, (1897) 1 Q. B. 192 ; 66 L. J. Q. B. 173 ; 76 L. T. 159 ; 45 W. R. 207 ; 61 J. P. 70 473 Hindley v. Haslam (1878), 3 Q. B. D. 481 ; 27 W. R. 61 125, 613 Hingeston v. Kelly (1849), 18 L. J. Ex. 360 U3 TABLE OF CASES. XXXV PAOE Hinshaw v. Adam (1870), 8 M. 933 181 Hirschfield v. L. B. & S. C. RaU. Co. (1876), 2 Q. B. D. 1 ; ^G L. J. Q. B. 94 ; 35 L. T. 473 627 Hiscox V. Batchellor (1867), 15 L. T. (N. S.) 543 140 Hiscox V. Greeuwood (1802), 4 Esp. 174 218, 220 Hitchcock V. Coker (1837), 6 A. & E. 438 ; 6 L. J. Ex. 266 ; 45 R. R. 522. . . . 92, 102, 104 Hoare v. Ritchie, (1901) 1 K. B. 434 ; 70 L. J. K. B. 279 ; 84 L. T. 54 ; 49 W. R. 351 505 Hoare v. Truman (1902), 71 L. J. K. B. 380 ; 86 L. T. 417 ; 50 W. R. 396 ; 66 J. P. 342 539 Hobsou V. Cowley (1858), 27 L. J. Ex. 205 ; 6 W. R. 334 206 Hochster v. De la Tour (1853), 2 E. & B. 678 ; 22 L. J. Q. B. 455 ; I W. R. 469 160 Hoddinott v. Newton, (1901) A. C. 49 ; 70 L. J. K. B. 150 ; 84 L. T. 1 ; 49 W. R 380 519 Hodkiuson v. Green (1875), 39 J. P. 600 66 HodsoU V. Stallebrass (1840), 11 A. & E. 301 ; 9 L. J. Q. B. 132 ; 9 C. & P. 63 193 Hoey V. McEwan (1867), 5 Macph. 814 206 Hoggard v. Mackenzie (ISoH), 25 Beav. 493 ; 6 W. R. 572 56 Holcroft V. Barber (1843), 1 C. & K. 4 135, 137, 142 Hole V. Bradbury (1879), 12 C. D. 886 ; 48 L. J. C . 673 ; 41 L. T. 153 ; 28 W. R. 39 213 Hole r. Sittingboume Rail. Co. (1861), 6 H. & N. 488; 30 L. J. Ex. 81 ; 3 L. T. 750 ; 9 W. R. 274 2)1, 252 HoUiday v. National Telephone Co., (1899) 2 Q. B. 392 ; 68 L. J. Q. B. 1016 ; 81 L. T. 252 ; 47 W. R. 658 251, 255, 256 HoUins V. Fowler (1874), L. R. 7 H. L. 757 ; 44 L. J. Q. B. 169 ; 33 L. T. 73. . 226 Hollo vvay y. Abell (1836), 7 C. & P. 528 ; 48 R. R. 8l0 203 Holmes v. Clarke (1862), 7 H. & N. 937 ; 31 L. J. Ex. 366 ; 9 L. T. 178 ; 9 W. R. 419 297, 300 Holmes v. G. N. Rail. Co., (1900) 2 Q. B. 409 ; 69 L. J. Q. B. 854 ; 83 L. T. 44 ; 48 W. R. 681 ; 64 J. P. 532 653 Holmes r. Millage, (1893) 1 Q. B. 551 ; 62 L. J. Q. B. 380 ; 68 L. T. 205 ; 41 W. R. 354 130 Holmes i\ N. E. Rail. Co. (1871), L. R. 6 Ex. 123; 40 L. J. Ex. 121; 24 L. T. (N. S.) 69 290, 297 Holmes V. Onion (1857), 2 C. B. (N. S.) 790 ; 26 L. J. C. P. 261 23 Holmes r. Worthington (1861), 2 F. & F. 533 300, 310 Holness v. Mackay, (1899) 2 Q. B. 319 ; 68 L. J. Q. B. 724 ; 80 L. T. 831 ; 47 W. R. 531 652,653 Holyoake, Ex parte (1887), 35 W. R. 396 134 Homborg, Ex parte (1842), 2 M. D. & D. 642 134 Home Secretary and Fletcher, Re (1887), 18 Q. B. D. 339 ; 56 L. J. Q. B. 177 ; 35 W. R. 282 ; 5lJ. P. 707 -102 Homersham v. Wolverhampton Waterworks (1851), 6 Exch. 137 ; 20 L. J. Ex. 193 80 Hood V. .Jones (1899), 81 L. T. 169 103, 104, 105 Hope, The (1873), I Asp. 563; 28 L. T. 287 169 Hopkinson r. Gaunt (1886), 14 Q. B. D. 592 ; 54 L. J. Q. B. 284 ; 33 W. R. 522 ; 49 J. P. 550 390 Hopwood V. Thoi-n (1849), 8 C. B. 293 ; 19 L. J. C. P. 94 ; 14 Jur. 87 153 Horan r. Havhoe, (19ii4) 1 K. B. 288 ; 73 L. J. K. B. 132 ; 90 L. T. 12 ; 51 W.-R. 231' 11, 41, 90 c2 XXXVl TABLE OF CASES. PAGE Horn V. Chandler (1670j, 1 Mod. 271 62 Horn V. Ivy (1669), 1 Ventris, 47 76 Hornby v. Close (1867), L. R. 2 Q. B. 15:5 ; 36 L. J. M. C. 43 ; 15 L. T. 563 ; 15 W. R. 336 569, 577, 581, 582, 584 Home V. Blake (1747), 2 Str. 1267 213 Horner v. Franklin, (1905) 1 K. B. 479 ; 74 L. J. K. B. 291 ; 92 L. T. 178 . . 477 Horner V. Groves (1831), 7 Bing. 735; 5 M. & P. 768; 9 L. J. (O. S.) 0. P. 192 102 Horton v. McMui-try (-1860), 5 H. & N. 667 ; 29 L. J. Ex. 260 ; 2 L. T. 297 ; 8 W. R. 285 173, 177, 184 Hotchin r. Hindimirsh, (1891) 2 Q. B. 181 ; 60 L. J. M. C. 146 ; 65 L. T. 149 ; 39 W. R. 607 229 Houghton V. Sutton, (1901) l.K. B. 93 ; 70 L. J. K. B. 01 ; 83 L. T. 472 ; 49 W. R. 196 683 Houldsworth v. City of Glasgow Bank (1880), 5 A. C. 317 ; 42 L. T. 194 ; 28 W. R. 677 233, 235 Howard v. Bennett (1888), 58 L. J. Q. B. 129 ; 60 L. T. 152 ; 53 J. P. 359 . . 628, 635 Howard v. Crowther (1841), 8 M. & W. 601 ; 10 L. J. Ex. 355 ; 5 Jur. 91 ... . 199 Howard v. Sheward (1866), 2 C. P. 148 ; 36 L. J. C. P. 42 ; 15 L. T. 183 ; 15 W. R. 45 221 Howard v. Wilson (1832), 4 Hagg. Ecc. 107 8 Howard v. Woodward (1865), 34 L. J. Ch. 46; 5 N. R. 8 ; 11 L. T. 414 ; 13 W. R. 132 165 Howarth v. Coles (1862), 12 C. B. (N. S.) 139 ; 31 L. J. M. C. 262 ; 6 L. T. 785 538 Howden v. Yorkshire Miners' Federation, (1905) A. C. 250 ; 74 L. J. K. B. 511 ; 92 E. T. 701 ; 53 W. R. 667 578, 579, 581, 606, 607 Howe V. Mark Finch & Co. (1886), 17 Q. B. D. 187 ; 34 W. R. 593 ; 51 J. P. 276 633 Howell V. Batt (1833), 5 B. & Ad. 504 ; 3 L. J. K. B. 49 ; 2 N. & M. 381 .... 225 Howells V. Landore Steel Co. (1874), L. R. 10 Q. B. 62 ; 44 L. J. Q. B. 25 ; 32 L. T. 19; 23 W. R. 335 281, 282, 283, 298, 307, 394 Howells V. Wynne (1863), 15 C. B. (N. S.) 3 ; 32 L. J. M. C. 241 275 Howitt V. Nottingham Tramways (1883), 12 Q. B. D. 16 ; 53 L. J. Q. B. 21 ; 50 L. T. 99 ; 32 W. R. 248 252 Hoyle V. Oram (1862), 12 C. B. (N. S.) 124 ; 31 L. J. M. C. 213 ; 8 Jiu-. (N. S.) 1154 539 Huggins, Ex parte (1882), 21 C. D. 85; 51 L. J. Ch. 935; 17 L. T. 659; 30 W. R. 878 100, 212 Hughes, Ex parte (1854), 23 L. J. M. C. 138; 2 C. L. R. 1542; 2 W. R. 465 617, 618 Hughes V. Bonella (1894). 10 Times L. R. 197 335 Hughes V. Budd (1840), 8 Dowl. 478 ; 4 Jur. 654 ; 59 R. R. 835 88 Hughes V. Chatham (1843), 5 M. & G. 54 ; 1 Lutw. R. C. 51 48 Hughes V. Humphreys (1827), 6 B. & C. 680 ; 9 D. & R. 715 ; 5 L. J. (O. S.) K. B. 270 150 Hughes V. Percival (1883), 8 A. C. 443 ; 52 L. J. Q. B. 719 ; 49 L. T. 189 ; 31 W. R. 725 253, 254, 256, 257 Hull and London Life Assurance Co., Re (1858), 2 De G. & J. 275 ; 6 W. R. 385 234 Hulle r. Heightman (1802), 2 East, 145 ; 4 Esp. 75 122 Humfray r. Dale (1867), 7 E. & B. 266 ; 2 Sm. L. C. (ed. 1 1) 403 224 Humphreys, Ex parte (1833), 3 D. & C. 114 133 Humphrysr. Pratt (1831), 5 Bli. N. S. 154 145 Hunt t'. Colson (1833), 3 M. & S. 790 47 TABLE OF CASES. XXXVll PAGE Hunt V. G. N. Rail. Co., (1891) 2 Q. B. 189 ; 60 L. J. Q. B. 498 ; 55 J. P. 648 153, 155, 618 Hunt V. Wimbledon L. B. (1878), 3 C. P. D. 208 ; 48 L. J. C. P. 207 ; 40 L. T. 115; 27 W. R. W,-, 75, 76, 79 Hunter v. Berkeley (1836), 7 C. & P. 413 220 Hussey v. Pacey (1G66), 1 Lev. 189 174 Hutohins v. Hutchins (1847), Bigelow, L. C. 207 573 Hutchinson v. York, &c. Rail. Co. (1850), 5 Exch. 343; 19 L. J. Ex. 296; 6 Rail. Cas. 580 266, 280, 281, 306, 307 Huttly V. Simmons, (189M) 1 Q. B. 181 ; 67 L. J. Q. B. 213 576, 609 Huttman v. Boulnois (1826), 2 C. & P. 510 135, 139 Hutton V. Bragg (1816), 7 Taunt. 14, 25 ; 2 Marsh, 339 ; 17 R. R. 431 167 Hutton V. Parker (1839), 7 Dowl. 739 104 Hyams i'. Webster (1867), 36 L. J. Q. B. 166 ; L. R. 2 Q. B. 264 ; 16 L. T. 1 18 ; 17 W. R. 232 253 Illidge V. Goodwin (1831), 5 C. & P. 190 238, 242 Illingworth v. Walmsley, (1900) 2 Q. B. 142 ; 69 L. J. Q. B. 519; 82 L. T. 647 683 Illustrated News Corporation, Re (1900), 16 Times L. R. 157 140 Imraacolata Concezione, The (1883), 9 P. D. 37 ; 53 L. J. Adm. 19 ; 50 L. T. 539 ; 32 W. R. 705 169 Imperial Loan Co. v. Stone, (1892) 1 Q. B. 599 ; 61 L. J. Q. B. 449 ; 66 L. T. 556 ; 56 J. P. 436 73 Income Tax Commissioners v. Pemsel, (1891) A. C. 531 ; 61 L. J. Q. B. 265; 65 L. T. 621 ; 55 J. P. 805 443 Indermaur v. Dames (1866), 1 C. P. 274 ; 36 L. J. C. P. 181 ; 16 L. T. 293 ; 15 W. R. 434 297 Ingram v. Barnes (1857), 7 E. & B. 115 ; 26 L. J. Q. B. 319 ; 5 W. R. 232 . . 618 lona, The (1867), L. R. 1 P. C. 426 ; 16 L. T. (N. S.) 158 ; 4 Moore, P. C 336. . 260 Irons V. Davis, (1899) 2 Q. B. 330 ; 68 L. J. Q. B. 673 ; 80 L. T. 673 ; 47 W. R. 616 687 Irwin V. Dearman (1809), 1 1 East, 23 199, 204 Isaacson v. New Grand, (1903) 1 K. B. 539 ; 72 L. J. K. B. 227 ; 88 L. T. 291 . . 662 Jack V. N. B. Rail. Co. (1886), 14 R. 263 61 Jackson v. Cummins (1839), 5 M. & W. 342 ; 8 L. J. Ex. 265 ; 4 Jur. 436 .... 167 Jackson v. Irvin (1809), 2 Camp. 48 56 Jackson v. Union Marine Insurance Co. (1875), L. R. 10 C. P. 125 ; 44 L. J. C. P. 27 ; 31 L. T. 789 ; 23 W. R. 169 181 Jacobs V. Latour (1828), 2 M. & P. 201 ; 5 Bing. 130 ; 6 L. J. (0. S.) C. P. 243 167 Jacoby v. Whitmore (1883), 49 L. T. 335 ; 32 W. R. 18 ; 48 J. P. 335. . , . 105, 214 Jacquot V. Bourra (1839), 7 Dowl. 348 173 James v. Carswells (1794), Eraser, 360 149 James /'. Westinghouse Co. (1898), Times Newspaper, Feb. 1st, 1898 634 Jenkins v. Beltham (1855), 15 C. B. 168 ; 24 L. J. C. P. 94 ISO Jenkinsou r. Nield (1892), 8 Times L. R. 540 599 Jennings c. Pitman (19 Jac), Hutton, 63 62 Jenoure v. Delmege, (1891) A. C. 73; 60 L. J. P. C. 11 ; 63 L. T. 814; 39 W. R. 388 ; 55 J. P. 500 152 XXXVIU TABLE OF CASES. PAGE Jesse r. Roy (1834), 1 Or. M. & R. 316; 3 L. J. Ex. 268; 4 Tyr. 626 122 Jewry v. Busk (1814), 5 Taunt. 302 112 Jewsou V. Gatti (1886), 2 Times L. R. 44 1 305 Joel V. Morison (1834), 6 C. & P. 601 243, 267 John r. Albion Coal Co. (1902), 18 Times L. R. 27 652 John Griffiths Cycle, &c. v. Humber, (1899) 2 Q. B. 414 ; 68 L, J. Q. B. 959 ; 81 L. T. 310 84 Johnson r. Appleby (1874), L. R. U C. P. 158 ; 43 L. J. C. P. 14G; 30 L. T. 261 ; 22 W. R. 515 81, 84 Johnson v. Blenkensop (1841), 5 Jur. 870 139 Johnson v. Evans (1800), 3 Esp. 32 ; 6 R. R. 809 156 Johnson v. Lindsay, (1891) A. C. 391 ; 61 L. J. Q. B. 90 ; 65 L. T. 97 ; 40 W. R. 405 13, 280, 281, 284, 285, 288, 289, 306 Johnson v. Marshall, (1906) A. C. 409; 75 L. J. K. B. 868; 94 L. T. 828; 22 T. L. R. 565 651 Johnson v. Shrewsbury and B. Rail. Co. (1853), 3 D. M. k G. Ul4 ; 22 L. J. Ch. 921 ; 17 Jur. 1015 1G2, 163 Johnstone, Ex parte (1839), 7 Dow. 702 617 Johnstone /'. Milling- (1S86), 16 Q. B. D. 460; 55 L. J. Q. B. 162; 54 L. T. 629 ; 34 W. R. 238 160 Johnstone v. Sumner (1858), 3 H. & N. 261 ; 27 L. J. Ex. 341 ; 6 W. R. 574. . 67 Jollyfe V. Broad (1621), Cro. Jac. 596 101 Jones' Case (1832), 4 B. & Ad. 345 571 Jones, Re, (1891) 2 Q. B. 231 ; 60 L. J. Q. B. 751 ; 64 L. T. 804 ; 40 W. R. 95 129, 212 Jones V. Festiniog Rail. Co. (186S), L. R. 3 Q. B. 733 ; 37 L. J. Q. B. 214 ; 18 L. T. 902 ; 17 W. R. 28 633 Jones V. Great Central Rail. Co. (1902), 18 Times L. R. 65 690, 692 Jones V. Hart (1699), 2 Salk. 441 ; Holt, 642 265 Jones i;. Heavens (1877), 4 C. D. 636 ; 25 W. R. 4(i0 102 Jones V. Henley (1685), 2 Rep. Ch. 162 8 Jones i). Liverpool (1885), 14 Q. B. D. 890 ; 54 L. J. Q. B. 345 ; S3 W. R. 551 ; 49 J. P. 311 16, 19, 258, 269 Jones I'. Ocean Coal Co., (1899) 2 Q. B. 124; 68 L. J. Q. B. 731 ; 80 L. T. 582 ; 47 W. R. 484 682 Jones V. Robson, (1901) 1 Q. B. 673 ; 70 L. J. Q. B. 419 ; 84 L. T. 230 . . 416, 430 Jones V. Scullard, (1898) 2 Q. B. 565 ; 67 L. J. Q. B. 895 ; 79 L. T. 386 .... 20, 270, 675 Jones r. Victoria Dock (1877), 2 Q. B. D. 314 ; 46 L. J. Q. B. 219 ; 36 L. T. 347 ; 25 W. R. 501 83, 84 Jones V. Wasley (1902), 18 Times L. R. 418 341 Jones V. Woolam (1822), 5 B. & Aid. 769 577 Jonge Andries, The (1857), Swa. 226 ; 11 Moore, P. C. 313 ; 6 W. R. 198 .... 118 Judge V. Bennett (1887), 52 J. P. 347 598, 599 Judsou V. Etheridge (1833), 1 C. & M. 743 , 3 T}t. 954 ; 2 L. J. Ex. 300 167 Juliana, The (1822), 2 Dod. 504 122, 133 K. V. Raschen (1878), 38 L. T. 38 ; 42 J. P. 38 183 Keane v. Boycott (1795), 2 H. Bl. 512 194 Kearley v. Tylor (1891j, 65 L. T. 261 278 Kearney 1^. Lloyd (1890), 26 L. R. L-. 258 571, 575, 576, 608 Kearney v. Whitehaven Colliery, (1893) 1 Q. B. 700 ; 62 L. J. M. C. 129 ; 68 L. T. 690 ; 41 W. R. 594 98, 388 TABLE OF CASES. XXXIX PAOE Keast V. Barrow Hematite Co. (1899), 15 Times L. R. 141 ; 63 J. P. 56 . .681, 682 Keat's Case (1697), Skinner, 668 29 Keen ^. Henry, (1894) 1 Q. B. 292; 63 L. J. Q. B. 211; 69 L. T. 671; 42 W. R. 214 36 Keen )'. MiUwall Dock Co. (1882), 8 Q. B. D. 482; 51 L. J. Q. B. 277; -"^O W. R. 503 ; 46 J. P. 435 038 Keene v. Parsons (1819), 2 Stark. 506 87, 89 Kei"-hley & Co. v. Durant, (1901) A. C. 240 ; 70 L. J. K. B. 662 ; 84 L T. 777 248 Kein v. Hart (1868), 2 Ir. C. L. 138 ; 3 Ir. C. L 388 140 Kellard v. Rooke (1887), 19 Q. B. D. 58.3 ; 21 Q. B. D. 367 ; 57 L. J. Q. B. 599 ; 36 W. R. 875 634, 635 Kelly r. Met. Rail. Co., (1895) 1 Q. B. 944 ; 64 L. J. Q. B. 568 ; 72 L. T. 551 ; 43 W. R. 497 201, 225 Kelly V. Partinj/ton (1833), 2 N. c% M. 460 1-^4 Kelnert). Baxter (1868), 2 C. P. 174 ; 36 L. J. C. P. 94 ; 15 L. T. 313 ; 15 W. R. 278 223 Kemble v. Kean (1829), 6 Sim. 333 163 Kemp V. Caddington S. B. (1893), 9 Times L. R. 301 178 Kennedy v. Broun (1863), 13 C. B. (N. S.) 677 ; 32 L. J. C. P. 137 ; 7 L. T. 626 57, 113 Kennedys. Cowie, (1891) 1 Q. B. 771; 60 L. J. M. C. 170; 64 L. T. 598; 39 W. R. 686 603 Kenny v. Harrison, (1902) 2 K. B. 168 ; 71 L. J. K. B. 783 ; 87 L. T. 318. . . . 518 Kent r. Shuckard (1831), 2 B. & Ad. 803 236 Kerrains c. New York, 15 Sickle, 225 42 Kershaw v. Mitchell (1872), 2 Coup. 206 82 Kibble, Ex parte (1875), L. R. 10 Ch. 373 ; 44 L. J. Q. B. 63 ; 32 L. T. 138 ; 23 W. R. 433 59 Kidderminster v. Hardwick (1873), L. R. 9 Ex. 13 ; 43 L. J. Ex. 9 ; 29 L. T. 612 ; 22 W. R. 160 78, 93 Kiddle v. Lovett (1886), 16 Q. B. D. 605 ; 34 W. R. 518 630, 633 Killick V. Graham, (1896) 2 Q. B. 196 ; 65 L. J. M. C. 180 ; 75 L. T. 29 ; 44 W. R. 669 229 Kimberley v. Jennings (1836), 6 Sim. 340 163 King V. Glover (1806), 2 B. & P. N. R. 206 133 King V. London Improved Cab Co. (1889), 23 Q. B. D. 2M ; 58 L. J. Q. B. 546 ; 61 L. T. 34 ; 37 W. R. 737 36 King V. Spurr (1881), 8 Q. B. D. 104 : 51 L. J. Q. B. 105 ; 45 L. T. 709 ; 30 W. R. 152 36 Kingston v. Booth (1683), Skinner, 228 265 Kirk V. The Queen (1872), 14 Q. B. D. 558 . . , 262 Knight v. Fox (1850), 5 Exch. 721 ; 20 L. J. Ex. 9 ; 14 Jur. 963 249 Knight V. Harrison (1823), cited 4 M. & W. 279 168 Knight V. Wedderburn (1778), Morrison's Diet, of Decisions, 14, 545 27 Knight V. Whitmore (1885), 53 L. T. (N. S.) 233 584 Kniveton v. Northern Employers, (1902) 1 K. B. 880 ; 71 L. J. K. B. 588; 86 L. T. 721 ; 50 W. R. 704 667 Knowles r. Dickinson (1860), 29 L. J. M. C. 135 ; 2 E. & E. 705 ; 2 L. T. 174 ; 8 W. R. 411 408 Knowlman v. Bluett (1874), L. R. 9 Ex. 307 ; 43 L. J. Ex. 151 ; 32 L. T. 262 ; 22 W. R. 758 85 Knox r. Gye (1872), L. R. 5 H. L. 675 ; 42 L. J. Ch. 234 23 Kuuckey v. Redruth D. C, (1904) 1 K. B. 382 ; 73 L. J. K. B. 265 ; 90 L. T. 226; 52 W. R. 55S 368, 382 xl TABLE OF CASES. PAGE Lacy V. Osbaldiston (1837), 8 C. & P. 80 17G, 177 Lake v. Campbell (1862), 5 L. T. (N. S.) 582 42, -18, llo Lamb V. Attenborough (1862), 1 B. & S. 831 ; 31 L. J. Q. B. 41 ; 10 W. R. 211 33 Lamb r. Burnett (1831), 1 Cr. & J. 291 ; 9 L. J. (O. S.} Ex. r).5 31 Lamb v. Evans, (1893) 1 Ch. 218 ; 62 L. J. Ch. 404 ; 68 L. T. 131 ; 41 W. R. 405 176 Lamb v. G. N. Rail. Co., (1891) 2 Q. B. 281 ; 60 L. J. Q. B. 489 ; 65 L. T. 225 ; 39 "W. R. 475 310, 345 Lamb r. Palk (1840), 9 C. & P. 629 245, 267 Lambert v. Atkins (1809), 2 Camp. 272 66 Lambert r. Buenos Ayres Co. (1869), 18 W. R. 180 92 Lamburn r. Cruden (1841^ 2 M. & C. 253 ; 2 Scott, N. R. 533 ; 10 L. J. C. P. 121 110 Lamley v. East Retford (1891), 55 J. P. 133 638 Lamproll r. Billericay Union (1849), 3 Exch. 283 ; 18 L. J. Ex. 282 77 Lancaster v. Greaves (1829), 9 B. & C. 628 ; 7 L. J. (0. S.) M. C. 116 617 Lane v. Cotton (1701), 12 Mod. 472 ; 1 Ld. Raym. 646 225, 262 Langan v. G. W. Rail. Co. (1874), 30 L. T. 173 215, 222 Langraead r. Maple (1865), 18 C. B. (N. S.) 255 ; 12 L. T. 143 : 14 W. R. 469. . 639 Langton v. Carleton (1873), 9 L. R. Ex. 54 ; 43 L. J. Ex. 54 ; 29 L. T. 650 . . 143 Lamien v. Albany Gas Co. (1871), 44 N. Y. 459 272 Lanphier v. Phipos (1838), 8 C. & P. 475 181 Larcombe v. Simey, (1907) 1 K. B. 139 ; 76 L. J. K. B. 107 ; 95 L. T. 874 ; 71 J. P. 13 43 Laskey v. Michelraore (1907), 24 T. L. R. 61 ; 71 J. P. 559 42 Latter v. Braddell (1880), 50 L. J. Q. B. 448 ; 44 L. T. 369 ; 29 W. R. 239 ; 45 J. P. 520 30, 178 Laugher v. Pointer (1826), 5 B. & C. 547 ; 8 D. & R. 550 ; 4 L. J. (O. S.) K. B. 309 15, 16, 19, 22, 25, 116, 258, 288 Lavie v. Phillips (1705), 3 Burr. 1776 ; 1 Wm. Bl. 570 68 Law V. Graham, (1901) 2 K. B. 327 ; 70 L. J. K. B. 608 ; 84 L. T. 599 ; 49 W. R. 622 ; 65 J. P. 501 539 Law V. Pratt (1843), 1 L. T. (0. S.) 623 337 Lawford v. Billericay R. C, (1903) 1 K. B. 772 ; 72 L. J. K. B. 554 ; 88 L. T. 317 ; 51 W. R. 630 ; 67 J. P. 245 76, 77, 78 Lawler v. Linden (1876), 10 Ir. C. L. 188 139 Lawless r. Anglo- Egyptian Co. (1869), L. R. 4 Q. B. 262 ; 38 L. J. Q. B. 129 ; 7 W. R. 498 153 Lawrence v. Todd (1863), 14 C. B. (N. S.) 554 ; 32 L. J. M. C. 238 ; 8 L. T. 505 ; 1 1 W. R. 835 617 Lax V. Darling (1879), 5 Ex. D. 28 ; 48 L. J. Q. B. 143 ; 41 L. T. 481 ; 28 W. R. 221 263 Leadbitter v. Farrow (1816), 5 M. & S. 345 ; 17 R. R. 345 224 Learoyd v. Bracken, (1894) 1 Q. B. 114 ; 63 L. J. Q. B. 96 ; 69 L. T. (;6S ; 42 W. R. 196 98 Learoyd v. Brook, (1891) 1 Q. B. 431 ; 60 L. J. Q. B. 373; 04 L. T. 458; 39 W. R. 480 150, 189, 190 Leathcm v. Craig, (1899) 2 Ir. R. 667 574, 575, 576, 608 Leather Cloth Co. v. Lorsont (1869), 9 Eq. 345 ; 39 L. J. Ch. 86 ; 21 L. T. 661 ; 18 W. R. 572 102, 103 Leek v. Maestaer (1807), 1 Camp. 138 17.T Ledward v. Hassells (1856), 2 K. & J. 370 ; 25 L. J Ch. 311 ; 4 W. R. 315 . . 61 Lee V. Bayes (1856), 18 C. B. 607 ; 25 L. J. C. P. 249 ; 2 Jur. (N. S.), 1093 . . 226 TABLE OF CASES. xU PAGE Lee V. Griffin (1861), 1 B. & S. 272 ; 30 L. J. Q. B. 252 ; 4 L. T. 546 ; 9 W. R. 702 37 Lee V. Lanes. & Yorks. Rail. Co. (1877), 6 Ch. 527 ; 25 L. T. (N. S.) 77 ; 19 W. R, 729 627 Lee v. Walker (1872), 7 C. P. 121 ; 41 L. J. C. P. 91 : 26 L. T. (N. S.) 70 . . 180 Leech v. Life and Health, &c., (1901) 1 K. B. 707 ; 70 L. J. K. B. 544 ; 84 L. T. 414 666 Lees V. Whitcomb (1828), 5 Bing. 34 ; 3 C. & P. 289 ; 6 L. J. (O S.) C. P. 213. 106 Leetham v. Johnstone -White, (1907) 1 Ch. 322 ; 76 L. J. Ch. 304 ; 96 L. T. 348; 23 T. L. R. 254 103 Leggottv. G. N. Rail. Co. (1876), 1 Q. B. D. 599; 45 L. J. Q. B. 557 ; 35 L. T. 334 ; 24 W. R. 784 646 Lehigh Coal Co. v. Hayes (1889), 128 Pa. St. 294 ; 15 Am. St. R. 680 294 Le Loir v. Bristow (1815), 4 Camp. 134 123, 124 Lemaitre v. Davis (1881), 19 C. D. 281 ; 51 L. J. Ch. 173 ; 46 L. T. 407 ; 30 W. R. 360 255 Lempriere v. Paslej (1788), 2 T. R. 485 168 Leonard Watson's Case (1839), 9 A. & E. 731 ; 8 L. J. Q. B. 129 29 Leroux v. Brown (1852), 12 C. B. 801 ; 22 L. J. C. P. 1 ; 1 W. R. 22 82 LeSaget-. Coussmaker (1794), 1 Esp. 187 116 LesUe y. Fitzpatrick (1877), 3 Q. B. D. 229; 47 L. J. M. C. 22 ; 37 L. T. 461 61, 612 Levison v. Kirk (7 Jac. I.), Lane, 65 174 Levy V. Electrical Co. (1893), 9 Times L. R. 495 136, 140 Lewis V. Fogg (1732), 2 Str. 944 194 Lewis V. G. W. Rail. Co. (1877), 3 Q. B. D. 195 ; 45 L. J. Q. B. 131 ; 37 L. T. 774 ; 26 W. R. 255 651 Lewis V. Peachey (1862), 1 H. & C. 518 ; 31 L. J. Ex. 496 ; 10 W. R. 797 ... . 190 Lightly V. Clouston (1808), 1 Taunt. 112 ; 9 R. R. 713 187 Lilley v. Elwin (1848), 11 Q. B. 742 ; 17 L. J. Q. B. 132 ; 12 Jur. 623 . . 135, 139, 173, 186 Lima, The (1837), 3 Hagg. 346 31 Limland v. Stephens (1801), 3 Esp. 269 170 Limpus V. General Omnibus Co. (1862), 1 H. & C. 539 ; 32 L. J. Ex. 34 ; 7 L. T. 641 ; 11 W. R. 149 231, 239, 241, 245, 266, 268 Lindsay A'. Johnson, (1891) A. C. 371; 61 L.J. Q. B. 90; 65 L. T. 97; 40 W. R. 405 ; 55 J. P. 644 20 Line v. Royal Society, &c. (1902), 18 Times L. R. 634 239, 270 Linwood v. Hathorn (1817), 19 F. C. 327 ; I. S. App. 20 271 Lister & Co. v. Stubbs (1890), 45 C. D. 1 ; 59 L. J. Ch. 570 ; 63 L. T. 75 ; 38 W. R. 548 187 Little V. Neilson (1855), 17 D. (2nd ser.), 310 290 Liverpool Adelphi Loan Association v. Fairhurst (1854), 9Exch. 422 ; 23 L. J. Ex. 163 66 Liverpool Corporation v. Wright (1859), 28 L. J. Ch. 868 ; 1 Johns. 359 ; 7 W. R. 728 99, 100 Lloyd, Ex parte, (1891) 2 Q. B. 231 ; 60 L. J. Q. B. 7.U ; 64 L. T. 804; 40 W. R. 95 129,212 Lloyd r. Johnson (1798), 1 B. & P. 340 98 Lloyd V. Sugg, (1900) 1 Q. B. 481 ; 69 L. J. Q. B. 190; 81 L. T. 768 ; 48 W. R. 257 655 Logan, Ex parte (1870), 9 Eq. 149 ; 21 L. T. 742 ; 18 W. R. 273 159 London Corporation and Tubb's Contract, Re, (1884) 2 Ch. 524 ; 63 L. J. Ch. 580; 70 L. T. 719 651 xlii TABLE OF CASES. PACK London County Council v. Lewis (1900), 69 L. J. Q. B. 277 ; 82 L. T. 195 ; 64 J. P. 39 ^76 London, Leith and Glasgow Shipping Co. r. Ferguson (1850), 13 D. 51 95 London & N. W. Rail. Co. v. McMichael (1850), 5 Exeh. 114 ; 20 L. J. Ex. 97 ; 15 Jur. 132 63 Loudon School Board, Ex parte (1877), 2 Q. B. D. 397 ; 46 L. J. M. C. 193 ; 36 L. T. 698 ; 25 W. R. 536 456 Loudon School Board v. Duggan (1884), 13 Q. B. D. 176 ; 53 L. J. M. C. 104 ; 32 W. R. 768 ; 48 J. P. 742 452 Loudon Tramways v. Bailey (1877), 3 Q. B. D. 217 ; 47 L. J. M. C. 3 ; 37 L. T. 499 ; 26 W. R. 494 114, 613 Long r. Keightley (1877), 11 Ir. C. L. 221 198, 204 Losh V. Evans & Co. (1903), 19 Times L. R. 142 ; 51 W. R. 243 652. 654 Louise, The (1902), 18 Times L. R. 19 20 Lovatt V. Tribe (1862), 3 F. & F. 9 73 Lovegrove v. L. B. & S. C. Rail. Co. (1864), 16 C. B. (N. S.) 669 ; 33 L. J. C. P. 329 ; 10 L. T. 718 ; 12 W. R. 988 307 LoveU V. Howell (1876), 1 C. P. D. 161 ; 45 L. J. C. P. 387 ; 34 L. T. 183 ; 24 W. R. 672 280, 307, 628 Low r. Low (1735), 3 P. Wms. 391 100 Lowe V. Myers, (1906) 2 K. B. 265 ; 75 L. J. K. B. 651 ; 95 L. T. 35; 22 T. L. R. 614 663 Lowe V. Pearsou, (1899) 1 Q. B. 261 ; 68 L. J. Q. B. 122 ; 79 L. T. 654 ; 47 W. R. 193 653 Lowe V. Walter (1892), 8 Times L. R. 358 140 Lowry v. Aikenhead (1768), Folkard's Starkie, 253 154 Lowth r. Ibbotson, (1899) 1 Q. B. 1003 ; 68 L. J. Q. B. 465 ; 80 L. T. 341 ; 47 W. R. 506 665 Lowther v. Radnor (1806), 8 East, 113 617 Lowther Castle, The (1824), 1 Hagg. Adm. 384 31 Lucas V. Mason (1875), L. R. 10 Ex. 251 ; 44 L. J. Ex. 145 ; 33 L. T. 13 ; 23 W. R. 924 261 Lucas V. Nodisiliski (1795) , 1 Esp. 296 132 Luoey v. Ingram (1840), 6 M. & W. 302 ; 9 L. J. Ex. 196 259 Ludbrook v. Barrett (1877), 46 L. J. C. P. 798 ; 36 L. T. (N. S.) 616 ; 25 W. R. 649 115 Ludlow V. Charlton (1840), 6 M. & W. 815 ; 8 C. & P. 242 ; 10 L. J. Ex. 75 74, 75, 76, 77 Lumby v. Allday (1831), 1 C. & J. 301 ; 1 Tyr. 217 ; 9 L. J. (O. S.) Ex. 62 . . 156 Lumley v. Gye (1853), 2 E. & B. 216 ; 22 L. J. Q. B. 463 ; 17 Jui-. 827 .... 7, 23, 194, 571 Lumley v. Wagner (1852), 1 D. M. & G. 604 ; 21 L. J. Ch. 898 163 Lunt V. London & N. W. Rail. Co. (1866), L. R. 1 Q. B. 277 ; 35 L. J. Q. B. 105 ; 14 L. T. 225 ; 14 W. R. 497 268 Lygo V. Newbold (1854), 9 Exch. 302 ; 23 L. J. Ex. 108 ; 2 C. L. R. 449. .26t<, 305 LyUy'a Case (1 Anne), 7 Mod. 16 62 Lynch v. Nurdin (1841), 1 Q. B. 29 ; 10 L. J. Q. B. 73 ; 55 R. R. 191 . . . .289, 305 Lynes v. Suaith, (1899) 1 Q. B. 486 ; 68 L. J. Q. B. 275 ; 80 L. T. 122 ; 47 W. R. 411 41 Lyons, The (1887), 6 Asp. 199 ; 57 L. T. 818 169 Lyons v. Kuowles, (1901) A. C. 79; 70 L.J. K. B. 170; 84 L. T. 65; 49 W. R. 636 ; 65 J. P. 388 681 Lyons y. Martin (1838), 8 A. & E. 512 ; 3 N. & P. 509 241, 267 Lysons V. Wilkins, (1896) 1 Ch. 811 ; 65 L. J. Ch. 601 ; 74 L. T. 358 ; 45 W. R. 291 573, 574, 576, 600, 609 TABLE OF CASES. xHli PAGE McCabe r. Jopliug, (1904) 1 K. B. 222; 73 L. J. K. B. 129 ; 89 L. T. 624 ; 52 W. R. 358 665, 675 McClean v. Pritchard (1887), 20 Q. B. D. 285 ; 58 L. T. 337 ; 36 W. R. 508. . 43 McCord V. Cammell & Co., (1896) A. C. 57 ; 73 L. T. 634 ; 65 L. J. Q. B. 242 ; 12 T. L. R. 98 036 MacdonueU v. Mar.ston (1884), 1 C. & E. 281 158 MacDowall's Case (1886), 32 C. D. 366 ; 55 L. J. Ch. 620 ; 54 L. T. 6G7 ; 34 W. R. 529 l-iS MacDowall v. G. W. Rail. Co., (1903) 2 K. B. 331 ; 72 L. J. K. B. 652 ; 88 L. T. 825 242, 270 McEniry t;. Waterford Rail. Co. (1858), 8 Ir. C. L. 312 283 McGiffin V. Palmer's Co. (1882), 10 Q. B. D. 5 ; 52 L. J. Q. B. 25 ; 47 L. T. 346; 31 W. R. 118 633 McGowan v. Tancred, Arrol & Co. (1886), 13 R. 1033 640 McGratlit).Neill,(1902)lK.B. 211;71L.J.K.B. 58;50W. R. 1C2;66J.P. 180..519 McGregor v. Dansken (1899), 1 F. 536 665 Machut'. L. & S. W. Rail. Co. (1848), 2 Ex. Ch. 415; 17 L. J. Ex. 271 ; 5 Rail. Cas. 302 237 Mclntyre v. Belcher (1863), 14 C. B. (N. S.) 654 ; 32 L. J. C. P. 254 ; 8 L. T. 461; 11 W. R. 889 95, 108 Mackay v. Commercial Bank, &c. (1874), L. R. 5 P. C. 394 ; 43 L. J. P. C. 31 ; 30 L. T. 180 ; 22 W. R. 473 233, 235, 269 McKellar v. Macfarlane (1852), 15 D. 2nd ser. 246 178 Mackenzie v. MacLeod (1834), 10 Bing. 385 ; 4 Moo. & Sc. 249 232, 267 Macklin. Ex parte (1755j, 2 Ves. Sen. 675 63 McLaughlin v. Pryor (1842), 4 M. & G. 48 ; 4 Scott, N. R. 655 258 Maclure, Ex parte (1870), L. R. 5 Ch. 737 ; 39 L. J. Ch. 685 ; 23 L. T. 685 ; 18 W. R. 1122 95, 159 McManus v. Crickett (1800), 1 East, 106 245, 267 McNicholas v. Dawson, (1899) 1 Q. B. 773 ; 68 L. J. Q. B. 470 ; 80 L. T. 317 ; 47 W. R. 500 651, 652 McNicol V. Speirs (1899), 36 Sc. L. R. 428 651 McQueen v. G. W. Rail. Co. (1875), L. R. 10 Q. B. 569 ; 44 L. J. Q. B. 130 ; 32 L. T. 759 ; 23 W. R. 698 237 Madden v. Rhodes, (190B) 1 K. B. 534 ; 75 L. J. K. B. 329 ; 94 L. T. 741 ; 54 W. R. 373 ; 70 J. P. 230 583, 584 Maddison v. Alderson (1883), 8 A. C. 467 ; 52 L. J. Q. B. 737 ; 49 L. T. 303 ; 3W. R. 820 116 Madonna d'Idra, The (1811), 1 Dod. 37 169 Madrazo v. Willes (1820), 3 B. & Aid. 354 28 Magee v. Atkinson (1837), 2 M. & W. 440 ; 6 L. J. Ex. 115 224 Main CoUiery Co. v. Davies, (1900) A. C. 358 ; 69 L. J. Q. B. 755 ; 83 L. T. 83 ; 65 J. P. 20 650, 676 Mair v. Glennie (1815), 4 M. & S. 240 51 Mair v. Himalaya Tea Co. (1865), 1 Eq. 411 ; 13 L. T. 586 ; 14 W. R. 165 . . 163 Majoribanks, Ex parte (1847), De G. 466 56 Makepeace i;. Jackson (1813), 4 Taunt. 770; 14 R. R. 664 188 Mali V. Lord (1868), 39 N. Y. 381 271 Mallan v. May (1843), 11 M. & W. 653; 12 L. J. Ex. 376 ; 7 Jm-. 536. . 101, 102, lOi Maloney v. Bartley (1812), 3 Camp. 210 273 Malta, The (1828), 2 Hagg. 158 124 Manby v. Witt (1856), 18 C. B. 544 ; 25 L. J. C. P. 294 ; 4 W. R. 613 154 Manchester Corporation v. Williams, (1891) 1 Q. B. 94 ; 60 I. J. Q. B. 23 ; 63 L. T. 805 ; 39 W. R. 302 234 xllv TABLE OF CASES. PAGE Manchester Trust v. Fumess, (1895) 2 Q. B. 539 ; (54 L. J. Q. B. 76G ; 73 L. T. 110; 44 W. R. 178 16 Mang-an ;;. Atterton (1866), L. R. 1 Ex. 239 ; 35 L. J. Ex. 161 ; 14 L. T. 411 ; 14 W. R. 771 304 Maiiley v. Field (1859), 7 C. B. (N. S.) 96 ; 29 L. J. C. R. 79 ; 6 Jur. (N. S.) 300 203 Mann v. Barrett (1806), 6 Esp. 32 203 Mann v. Ward (1892), 8 Time.s L. R. 699 305 Mansfield v. Baddeley (1876), 34 L. T. 696 282, 306 Manvell v. Thompson (1826), 2 0. & P. 303 ; 31 R. R. 666 203 Marcus, Re (1887), 56 L. J. Ch. 830 ; 57 L. T. 399 ; 3 T. L. R. 816 9 Margaret. The (1862), 3 Ilagg. 238 169 Margerisou v. Birtwistle (1872), 36 J. P. 100 186 Marjoribanks, Ex parte (1847), De G. 466 56 Markey v. Tolworth, (1900) 2 Q. B. 454 ; 69 L. J. Q. B. 738 ; 83 L. T. 28 ; 64 J. P. 647 646 Marks v. Booth (1891), 90 L. T. Jo. 302 130 Marley v. Osborn (1894), 10 Times L. R. 388 6?5 Marney v. Scott, (1899) 1 Q. B. 986 ; 68 L. J. Q. B. 736 ; 47 W. R. 666 297 Marrow v. Flimby, (1898) 2 Q. B. 588 ; 67 L. J. Q. B. 976 ; 79 L. T. 397 . .5, 13, 24, 618, 649 Marshall v. Quceusborough Corporation (1823), 1 Sim. & St. 520 76 Marshall v. Rudeforth, (1902) 2 K. B. 175 ; 71 L. J. K. B. 781 ; 86 L. T. 752 ; 50 W. R. 596 519 Marshall v. Rutton (1800), 8 T. R. 545 66 Marshall v. York, &c. Rail. Co. (1851), 11 C. B. 655 ; 21 L. J. C. P. 34 ; 16 Jur. 124 201 Martin v. Temperley (1843), 4 Q. B. 298 ; 12 L. J. Q. B. 129 ; 7 Jur. 150 .... 260 Martin v. West Derby (1883), 11 Q. B. D. 145 ; 52 L. J. M. C. 66 ; 31 W. R. 489 42, 50 Martinez r. Gerber (1841), 3 M. & G. 88 ; 3 Scott, N. R. 38() ; 10 L. J. C. P. 314 193 Mason v. Mitchell (1865), 34 L. J. Ex. 68 ; 3 H. & C. 528 ; 11 L. T. 714 ; 13 W. R. 349 68 Massey v. Morriss, (1894) 2 Q. B. 412 ; 63 L. J. M. C. 185 ; 70 L. T. 873 ; 42 W. R. 638 276, 277 Masters v. Lowther (1852), 11 C. B. 948 ; 31 L. J. C. P. 130 ; 16 Jur. 374. . . . 229 Mathews v. Hassell, 1 E. D. Smith (N. Y.) 393 35 Mathews v. Mathews (1755), 2 Ves. sen. 636 130 Matthews*'. Baxter (1873), L. R. 8 Ex. 132 ; 42 L. J. Ex. 73 ; 28 L. T. 169 ; 21 W. R. 389 73 Maunder v. Conyers (1817), 2 Stark. 281 220 Maunder v. Venn (1829), M. & M. 323 203 Maw V. Jones (1890), 25 Q. B. D. 107 ; 59 L. J. Q. B. 542 ; 63 L. T. 347 ; 38 W. R. 718 1 157, 158, 190 Mayhew v. Suttle (1854), 4 E. & B. 347 ; 24 L. J. Q. B. 54 ; 3 W. R. 108 ... . 48 Maynard v. Robinson (1903), 19 Times L. R. 492 618 Meakiu v. Morris (1884), 12 Q. B. D. 352 ; 53 L. J. M. C. 72 ; 32 W. R. 661 . . 61 Mears v. L. & S. W. RaU. Co. (1862), 11 C. B. (N. S.) 850 ; 31 L.J. C. P. 220 ; 6 L. T. 190 34, 225 Mechanics' Bank v. Bank of Columbia, 5 Wheaton, 326 232 Meiklereid v. West (1876), 1 Q. B. D. 428 ; 45 L. J. M. C. 91 ; 34 L. T. 353 ; 24 W. R. 703 132 Mellor V. Denham (1879), 4 Q. B. D. 241 ; 48 L. J. M. C. 113 ; 40 L. T. 395 ; 27 W. R. 496 452 TABLE OF CASES. xlv PAGE Mellors v. Shaw (1861), 1 B. & S. 437; 30 L. J. Q. B. 333 ; 7 Jur. (N. S.) 845 14, 291, 297 Membcry v. G. W. Rail. Co. (1889), 14 A. C. 179; 58 L. J. Q. B. 563; 61 L. T. 566 ; 38 W. R. 145 300, 301 Mercer v. Wliall (1845), 5 Q. B. 447 ; 14 L. J. Q. B. 267 ; 9 Jur. 576. .. . 175, 184, 185, 189 Merrill v. Wilson, (1901) 1 K. B. 35 ; 70 L. J. K. B. 97 ; 83 L. T. 490; 49 W. R. 161 ; 65 J. P. 53 518 Merryweather v. Moure, (1892) 2 Ch. 518 ; 61 L. J. Ch. 505 ; 66 L. T. 719 ; 40 W. R. 540 176 Mersey Dock v. Gibbs (1866), L. R. 1 H. L. 83 ; 35 L. J. Ex. 225 ; 14 L. T. 677 ; 1 4 W. R. 872 234, 263 Metcalfe, Ex parte (1856), 6 E. & B. 287 ; 4 W. R. 490 114 Metcalfe v. Lumsden (1844), 1 C. & K. 309 221 Metzner v. Bolton (1854), 9 Exch. 518 ; 23 L. J. Ex. 130 ; 2 W. R. 302 140 Meux r. G. E. Rail. Co., (1895) 2 Q. B. 387 ; 64 L. J. Q. B. 657 ; 73 L. T. 247 ; 43 W. R. 080 ; 59 J. P. 662 201 Miall V. English (1866), 15 L T. 249 72 Michael r. Alestree (1677), 2 Lev. 172 ; 3 Keb. 650 265 Michell V. Brown (1858), 28.L. J. M. C. 53 : 1 E. & E. 267 275 Middleton, Ex parte (1824), 3 B. & C. 164 311 Middleton v. Fowler (1699), 1 Salk. 282 265 Midland Counties Bank v. Attwood, (1905) 1 Ch. 357; 74 L. J. Ch. 286; 92 L. T. 360. 128 Midland Insurance Co. v. Smith (1882), 6 Q. B. D. 651 ; 50 L. J. Q. B. 329 ; 45 L. T. 41 1 ; 29 W. R. 850 201 Midland Rail. Co. v. Robinson (1889), 15 A. C. 19 ; 59 L. J. Ch. 442 ; 62 L. T. 194 ; 38 W. R. 577 ; 54 J. P. 580 364 Midland Rail. Co. v. Sharpe, (1904) A. C. 349 ; 73 L. J. K. B. 666 ; 91 L. T. 181 ; 53 W. R. 114 683 Migotti r. Colvill (1879), 2 C. P. D. 233 ; 48 L. J. C. P. 695 ; 40 L. T. 747 ; 27 W. R. 744 638 Mikes V. Caly (1700), 12 Mod. 381 56 Mileham v Marylebone Corporation (1903), 67 J. P. 110 20 Mill V. Hawker (1875), L. R. 10 Ex. 92 ; 44 L. J. Ex. 49 ; 33 L. T. 177 ; 24 W. R. 348 227 Miller v. Aris (1800), 3 Esp. 232 224 Miller r. Hamilton (1832), 5 C. & P. 433 221 Miller r. Hancock, (1893) 2 Q. B. 177 ; 69 L. T. 214 ; 41 W. R. 578 ; 57 J. P. 758 297 Miller v. Lawton (1864), 15 C. B. (N. S.) 834 216 Miller v. Miller (1 898), 25 R. (4th ser.) 995 112 Millership r. Brookes (1860), 5 H. & N. 797 ; 29 L. J. Ex. 369 87 Millett V. Coleman (1873), 44 L. J. Q. B. 194 ; 33 L. T. 204 612 Milligan v. Wedge (1840), 12 A. & E. 737 ; 10 L. J. Q. B. 19 ; 1 Q. B. 714 . . 250 Mills V. Dunham, (1891) 1 Ch. 576; 60 L. J. Ch. 362; 64 L. T. 712; 39 W. R. 289 102, 104 Millward v. Midland Rail. Co. (1884), 14 Q. B. D. 68 ; 54 L. J. Q. B. 202 ; 52 L. T. 255 ; 33 W. R. 366 635 MUson V. Howard (1821), 9 Price, 134 132 Mineral Water Society v. Booth (1887), 36 C. D. 465 ; 57 L. T. 573 ; 36 W. R. 274 573, 581, 594 Minerva, The (1825), 1 Hagg. 347 122 Mirams, Re, (1891) I Q. B. 594 ; 60 L. J. Q. B. 397 : 64 L. T. 117 ; 39 W. R. 464 100, 130 xlvi TABLE OF CASES. PAGE Mires v. Solebay (1678), 2 Mod. 242 226 Mitchel r. Reynolds (1711), 1 P. W. 181 ; 1 Srn. L. C. 406 101 Mitchell V. Crassweller (1853), VA C. B. 237 ; 22 L. J. C. P. KM) ; 17 Jur. (N. S.) 716 243, 208 Mitchell V. Torup (1766), Parker, 227 275 Moenich v. Fenestre (1892), 61 L. J. Ch. 737 ; 67 L. T. 602 104 Moffatt V. Dickson (1853), 13 C. B. 543 : 22 L. J. C. P. 265 115 Moffatt V. Parsons (1814), 5 Taunt. 307 ; 1 Marsh, 55 222 Mo->82), 51 L. J. Q. B. 642 ; 30 W. R. 814 216 Payne v. New South Wales Coal Co. (1854), 10 Exch. 283 ; 24 L. J. Ex. 117. . 108 Peachey i: Rowland (1853), 13 C. B. 182 ; 22 L. J. C. P. 81 38, 249, 250 TABLE OF CASES. PAGE Ptacock V. Peacock (1809), 2 Camp. 65 114 Pearce v. Brooks (1866), L. R. 1 Ex. 213; 35 L. J. Ex. 134 : M L. T. 288; 14 W. R. 614 98 Pearce v. Foster (188G), 17 Q. B. D. 53G ; 55 L. J. Q. B. 306 : 54 L. T. 664 ; 34 W. R. 602 175, 176, 179 Pearce v. Lansdowne (1893), 69 L. T. 317 ; 62 L. J. Q. B. 441 ; 57 J. V. 760. 139, 618 Pearce v. London & S. W. Rail. Co., (1900) 2 Q. B. 100 ; 69 L. J. Q. B. 683 ; 82 L. T. 487 ; 48 W. R. 699 665 Pearce v. Rogers (1800), 3 Esp. 214 220 Pearl, The (1804), 5 C. Rob. 221 124 Peame v. Lisle (1749), Ambl. 75 27 Pearse v. Green (1819), 1 Jac. & W. 135 132 Pearson v. Belfjian Mills Co., (1896) 1 Q. B. 244 ; 65 L. J. M. C. 48 ; 74 L. T. ' 101 ; 44 W. R. 334 475 Peate v. Dicken (1834), 1 C. M. & R. 422 ; 5 Tyrw. 116 312 , Pegram v. Dixon (1886), 55 L. J. Q. B. 447 ; 51J. P. 198 633 Penhallow v. Mersey Docks (1861), 30 1,. J. Ex. 329 ; 9 W. R. S12 298 Peninsular, &c. Navigation Co. v. Isune Kijima, (1895) A. C. 661 ; 64 L. J. P. C. 146 : 73 L. T. 37 639 Penn v. Spiers and Pond, (1908) 1 K. B. 766 ; 77 L. J. K. B. 542 ; 98 L. T. 541 1 1 6, 680 Penn v. Ward (1835), 2 C. M. & R. 338 30 Penny v. Wimbledon Urban Council, (1899) 2 Q. B. 72 ; 68 L. J. Q. B. 704 ; 80 L. T. 615 ; 47 W. R. 565 21, 255, 258 Perkins v. Smith (1752), Sayer, 40 226 Perkins v. Stead (1907), 23 Times L. R. 433 20 Perls V. Saalfeld, (1892) 2 Ch. 14') : 61 L. J. Ch. 409 ; (i6 L. T. 666 ; 40 W. R. 548 104 Perry r. Wright, (1908) 1 K. B. 441 ; 77 L. J. K. B. 236 ; 98 L. T. 327 . .680, 682 Peter v. Compton (5 Will. HI.), 1 Sm. L. C. (11th ed.) 316 ; Skinner, 35:J .... 29 Peter v. Staveley (1866), 15 L. T. (N. S.) 275 137 Peto V. Brighton, &c. Rail. Co. (1863), 32 L. J. Ch. 677; 1 H. & M. 468 ; 11 W. R. 874 163 Petrel The, (1893) P. 320 ; 62 L. J. P. 92 ; 70 L. T. 417 ; 9 T. L. R. 566. , . . 282, 283, 308 Petrie v. Weir (1900), 2 F. 1041 539 Pett V. Wingfield (1692), Carth. 231 205 Pharmaceutical Society v. London & Provincial Supiily A.ssociation (1880), 5 A. C. 857 ; 49 L. J. Q. B. 736 ; 43 L. T. 389 229 Pharmaceutical Society v. Wheeldon (1890), 24 Q. B. D. 683 ; 29 L. J. Q. B. 400 ; 62 L. T. 727 229 Pharmaceutical Society v. White, (1901) 1 K. B. 601 ; 70 L. J. K. B. 386 ; 84 L. T. 188 ; 49 W. R. 407 229 Phelps V. Winchcombe (1616), 3 Bul.st. 77 214 Philadelphia Rail. Co. v. Derby (1852), 14 How. 468 271 PhilUps V. Alhambra Co., (1901) 1 K. B. 59 ; 70 L. J. K. B. 26 ; 83 L. T. 431 128, 207 Phillips V. Clift (1859), 4 H. & N. 168 ; 28 L. J. Ex. 153 ; 7 W. R. 295 189 Phillips V. Innes (1837), 4 CI. & F. 234 117, 313 Phillips V. Jones (1834), 1 A. & E. 333 87 Phillipson V. Hayter (1870), L. R. 6 C. P. 38 ; 40 L. J. C. P. 11 ; 23 L. T. 556 ; 19 W. R. 130 67 Pickardt;. Smith (1861), IOC. B. (N. S.) 470 ; 4 L. T. 470 252 TABLE OF CASES. H PAGE Pickering v. Ely (1843), 2 Y. & C. C. C. 249 ; 12 L. J. Ch. 271 ; 7 Jur. 479 . . 163 Pilkington v. Scott (1846), 15 M. & W. 657 ; 15 L. J. Ex. 329 104, 106, 199 PiUar y. Llynvi Coal Co. (1868), 4 C. P. 752 ; 38 L. J. C. P. 294 ; 20 L. T. 923 340, 341, 618 Pinchon's Case, 9 Rep. 86 b 109 Pinner v. Arnold (1835), 2 C. M. & R. 613 ; 5 L. J. Ex. 1 88 Pitts V. Paince (12 Will. III.), 1 Salk. 10 56 Plant V. Wrisrht, (1905) 1 K. B. 353; 74 L. J. K. B. 331 ; 92 L. T. 720; 53 W. R. 358" 519 Playford v. United Kingdom Telegraph Co. (1869), L. R. 4 Q. B. 706 ; 38 L. J. Q. B. 249 ; 21 L. T. 21 ; 17 W. R. 968 226 Pomfret v. Lanes. & Torks. Rail. Co., (li)03) 2 K. B. 718 ; 72 L. J. K. B. 729 ; 89 L. T. 176 ; 52 W. R. 66 652 Poinphrey r. Southwark, (1901) 1 K. B. 86 ; 70 L. J. K. B. 48 ; 83 L. T. 468 ; 65 J. P. 148 683, 687 Poplett V. Stockdale (1825), R. & Moo. 337 ; 2 C. & P. 198 97 Portland v. St. Margaret (1777), Cald. 3, n 42 Pott V. Eyton (1846), 3 C. B. 32 ; 15 L. J. C. P. 257 52 Potter V. Faulkner (1861), 1 B. & S. 800 ; 31 L. J. Q. B. 30 ; 10 W. R. 93 ; 6 L. T. 455 290, 307 Potter V. G-. W. Colliery (1894), 10 Times L. R. 380 639 Potts V. Port of Carlisle Rail. Co. (1860), 2 L. T. (N. S.) 283 ; 8 W. R. 524 . . 309 Poucher v. Norman (1825), 3 B. & C. 744 ; 5 D. & R. 648 ; 3 L. J. (0. S.) K. B. 115 110 Poulton V. L. & S. W. Rail. Co. (1867), L. R. 2 Q. B. 534 ; 36 L. J. Q. B. 294 ; 17 L. T. 11; 8 B. & S. 616 238, 240, 247, 268 Poulton V. Wilson (1858), 1 F. & F. 403 88 Poussard v. Spiers (1876), 1 Q. B. D. 414 ; 45 L. J. Q. B. 621 ; 34 L. T. 572 ; 24 W. R. 819 181, 192 PoweU V. Brown, (1899) 1 Q. B. 157 ; 68 L. J. Q. B. 151 ; 79 L. T. 031 ; 47 W. R. 145 653, 665 Powell V. Fall (1880), 5 Q. B. D. 597 ; 49 L. J. Q. B. 4i8 ; 43 L. T. 562 .... 633 Powell V. Main Colliery, (19;J0) A. C. 366 ; 69 L. J. Q. B. 758 ; 83 L. T. 85 ; 49 W. R. 49 663 Power V. Hoey (1871), 19 W. R. 916 145 Powis, Ex parte (1873), 17 Eq. 130; 43 L. J. Q. B. 24; 29 L. T. 654; 22 W. R. 218 129 Powles r. Hider (1856), 6 E. & B. 207 ; 25 L. J. Q. B. 331 ; 2 Jur. (N. S.) 472 36 Precious v. Abel (1795), 1 Esp. 350 218 Prentice v. Hall (1877), 37 L. T. 605 389 Price V. Green (1839), 16 M. & W. 346 ; 16 L. J. Ex. 108 ; 9 Jur. 880 ... . 102, 104 Price V. Marsden (1899), 1 Q. B. 493 ; 68 L. J. Q. B. 307 ; 80 L. T. 15 ; 47 W. R. 274 682 Price V. Mouatt (1861), 2 F. ^. Beaulieu (1814), 3 M. & S. 229 58 R. V. Beechey (1817), R. & R. 319 248 R. V. Betts (1850), 16 Q. B. (N. S.) 1022 230 R. V. Bilborough (1817), 1 B. & Aid. 115 46 R. V. Billinghay (1836), 5 A. & E. 676 46 R. V. Birdbrooke (1791), 4 T. R. 245 141 R. V. Bishop (1880), 5 Q. B. D. 259 277 R. V. Bishopton (1839), 9 A. & E. 824 48 R. V. Bleasdale (1848), 2 C. & K. 765 228, 273 R. V. Boiler Explosion Commissioners, (1891) 1 Q. B. 703 ; 60 L. J. Q. B. 544 ; 64 L. T. 674 ; 39 W. R. 440 404 R. V. Bolton (1783), Cald. 369 40 R. V. Bowers (1866), L. R. 1 C. C. R. 41 ; 35 L. J. M. C. 206 ; 14 L. T. 671 . . 11, 32 R. V. Brampton (1777), Cald. 11 178, 192 R. V. Bren (1863), 33 L. J. M. C. 59; 9 L. T. 452; 12 W. R. 107 11 R. V. Brissac (1803), 4 East, 164 ; 7 R. R. 551 572 R. V. Brown (1857), 7 E. & B. 757 378 R. V. Bunn (1872), 12 Cox, C. C. 316 571, 572, 597, 599 R. V. Burbach (1813), 1 M. & S. 370 46 R. V. Burton (1829), 1 M. C. C. 237 10 R. V. Byker (1823), 2 B. & C. Hi 135, 137 R. V. Bykerdyke (1832), 1 M. & Rob. 179 570 TABLE OF CASES. lui PAGE R. V. Callahan (1837), 8 C. & P. 154.. 13 R. V. Camfield (1824), 1 Mood. C. C. 42 44 R. V. Carpenter (1869), L. R. 1 C. C. R. 29 ; 3o L. J. M. C. 169 ; 14 L. T. 572 ; 14 W. R. 773 11 R. V. Carr (1811), R. & R. 198 25 R. V. Charretie (1849), 13 Q. B. 447 100 R. V. Cheshunt (1818), 1 B. & Aid. 473 47 R. V. Chillesford (1825), 4 B. & 0. 94 58, 61, 62 R. V. Chirk (1774), Bur. S. S. 782 205 R. V. Christ's Parish (1824), 3 B. & C. 459 142 R. V. City of London (1858), E. B. & E. 115, n 234 R. u. Cockshott, (1898) 1 Q. B. 582; 67 L. J. Q. B. 467; 78 L. T. 168; 62 J. P. ;V25 601 R. V. Colle.shall (1794), 5 T. R. 193 40 R. V. Combe (1828), 8 B. & C. 82 46 R. r. Cooke (1871), L. R. I C. C. R. 295 ; 40 L. J. M. C. OS ; 24 L. T. 108 ; 19 W. R. 389 34 R. V. Cope (1719), 1 Stra. 144 572 R. V. Crediton (1831), 2 B. & A. 493 ; 9 L. J. M. C. (0. S.) 89 40, 46 R. V. Cromford (1806), 8 East, 25 02 R. V. Cumberland Justices (1847), 17 L. J. Q. B. 102 ; 5 D. & L. 430 78 R. V. Dedham (1769), Bur. S. C. 653 ; 2 Bott. 292 141 R. V. Dixon (1868), 11 Cox, C. C. 178 11 R. V. Dixon (1814), 3 M. & S. 11 273, 275 R. r. Dodderhill (1814), 3 M. & S. 243 136, 141 R. V. Druitt (1867), 10 Cox, C. C. 592 ; 16 L. T. 855 570, 572, 598, 599 R. V. Eccleston ( 1 802), 2 East, 298 46 R. V. Edingale (1830), 19 B. & C. 739 46 R. V. Edmundson (1859), 2 E. & E. 77 ; 28 L. J. M. C. 213 ; 7 W. R. 565 317 R. V. Edwards (1798), 7 T. R. 745 199 R. V. Elmley Castle (1832), 3 B. & Ad. 826 58 R. V. Elsack (1785), 2 Bott. 203 142 R. V. Evered (1812), 16 East, 27 63 R. V. Field (1794), 5 T. R. 587 47 R. V. Fisher (1865], L. R. 1 C. C. R. 7 ; 35 L. J. M. C. 57 ; 13 L. T. 380 ; 14 W. R. 58 325 R. V. Foulkes (1875), L. R. 2 C. C. R. 150 ; 44 L. J. M. C. 65 ; 32 L. T. 407 ; 23 W. R. 699 12 R. V. Friend (1802), Russ. & Ry. 22 147 R. V. Gilroys (18t6), 4 R. (3rd ser.) 656 276 R. V. Glover (1864), 33 L. J. M. C. 169 ; 9 Cox, C. C. 501 ; 10 L. T. 582 . . . . 11 R. V. Goodbody (1838), 8 C. & P. 665 34 R. V. Gould (3 Anne), 1 Salk. 381 147 R. V. Great North of England Rail. Co. (1846), 9 Q. B. 315 ; 16 L. J. M. C. 16 ; 72 R. R. 262 234 R. V. Great Wigston (1824), 3 B. & C. 484 61, 63, 208 R. V. Great Yarmouth (1816), 5 M. & S. 114 142 R. V. Guildford (1818), 2 Chitty, 284 66 R. V. Guteh (1829), Mood. & Mol. 432 724 R. V. Hales (1794), 5 T. R. 668 141 R. V. Hales Owen (1717), 1 Str. 99 181 R. V. Hall (1875), 13 Cox, 49 11, 12 R. V. Hampreston (1791), 5 T. R. 205 141 llV TABLE OF CASES. PAGE R. V. Handley (1861), 9 L. T. (N. S.) 827 270, 386 R. V. Harburton (1786), 1 T. R. 1 39 208 R. v. Hun-is (1893), 69 L. T. 25 12 R. V. Hartley (1807), R. & R. C. C. 139 51 R. V. Hastie (1863), 32 L. J. M. C. 63; Leijrh & C. 209; 7 L. T. OOo ; 11 W. R. 293 11 R. V. Hawkins (1704), Foster, 38 43 R. V. Hey (1849), 1 Den. C. C. 602 ; 2 C. & K. 983 34 R. V. Hibbert (1875), 13 Cox, C. C. 82 600 R. V. Hig-hnam (1785), Cald. 491 46 R. V. Hiudrino-hain (1796), 6 T. R. 557 o8, 63 R. r. Mipswell (1828), 8 B. & C. 466 62 R. V. Holbrook (1877), 4 Q. B. D. 42 ; 4S L. J. Q. B. 113 ; 39 L. T. 536 ; 27 W. R. 313 274 R. V. Hoseason (1811). 14 East, 605 13 R. v. Hughes (1832), 1 Mood. C. C. 370 10 R. V. Hughes (1857), 26 L. J. M. C. 202 ; I D. & B. 248 ; 5 W. R. 732 230 R. V. Hulcott (1796), 6 T. R. 583 1S3, 192 R. V. Huntley (1852), 3 C. & K. 142 30 R. V. Ightham (1836), 4 A. & E. 936 ; 5 L. J. M. C. 105 46 R. V. Islip (7 Geo. I.), Str. 422 183 R. V. Ivinghoe (1717), 2 Botts. 293 23 R. V. Jackson. (1891) 1 Q. B. 671 ; 60 L. J. Q. B. 346 ; 64 L. T. 679 ; 39 W. R. 407 30 R. V. James (1837), 8 C. ic V. 131 227, 228, 273 R. V. Jarvis (1824), 1 Mood. C. C. 7 , 44 R. v. Jenson (1835), 1 Mood. 434 13 R. r. Journeyman Tailors (1721), 8 Mod. 10 269 R V. Judge of City of London Court (1885), 14 Q. B. D. 905 ; 54 L. J. Q. B. 330 ; 52 L. T. 537 ; 33 W. R. 700 639 R. V. Kerr (1837), 8 C. & P. 176 35 R. V. Koynsham (1804), 5 East, 309 87 R. v. Kidwelly (1824), 4 D. & R. 309 46 R. V. King's Lynn (1826), 6 B. & C. 97 40, 46 R. V. Kuell (1728), 1 Barnard, 305 230 R. V. Knutsford (1831), 1 B. & Ad. 726 46 R. V. Laindon (1799), 8 T. R. 379 40, 46 R. V. Langham (1782), 1 Bott. 612 208 R. V. Leech (1821), 3 Stark. 70 25, 73 R. V. Litchfield (1843), 4 Q. B. 893 , 78 R. V. Little Bolton (1783), Cald. 367 46 R. V. Longnor (1833), 4 B. & Ad. 647 ; 2 L. J. M. C. 32 62 R. V. Longwhatton (1793), 5 T. R. 447 112,141 R. V. Lord (1850), 12 Q. B. 757 ; 17 L. J. M. C. 181 ; 76 R. R. 415 61 R. V. Louth (1828), 8 B. & C. 247 89 R. r. Louth Justices, (1900) 2 Ir. R. 714 618 R. V. Lynch, (1898) 1 Q. B. 61 ; 67 L. J. Q. B. 59 ; 77 L. T. 568 ; 46 W. R. 205 ; 18 Cox, C. C. 677 603, 620 R. V. Lyth (1773), 5 T. R. 327 137, 141 R. r. Macclesfield (1789), 3 T. R. 76 141 R. V. Macdonald (1861), 31 L. J. M. C. 67 ; L. & C. 85 ; 5 L. T. 330 ..11, 14, 53 R. v. McKeevit (unreported) 599 TABLE OP CASES. Iv PAGE R. V. Mackenzie, (1892) 2 Q. B. :)19 ; 61 L. J. M. C. 181 ; 67 L. T. 201 ; 41 W. R. 144 GOO R. V. Miirgetts (1801), 2 Leach, 9:50 43 R. r. Marshall (1870), 11 Cox, C. C. 490 ; 21 L. T. 706 H R. V. Mathews (1777), Cald. 1 42, 47 R. V. Mawbey (1796), 6 T. R. 619 569 R. r. May (1861). 80 L. J. M. C. 81 ; L. & C. V.i ; 3 L. T. 680 ; 9 W. R. 256 .; : n, 12 R. V. Mayle(1868), 11 Cox, C. C. 150 11 R. V. Medley (1834), 6 C. & P. 292 '-^78 R. r. Melkridge (1787), 1 T. R. 598 47 R. V. Mellish (1805), Rusa. & Ry. 80 40, 248 R. V. Minster (1814), 3 M. & S. 276 47 R. r. Mite.ham (1810), 12 East, 351 141 R. r. Mountsorrel (1814), 2 M. .t S. 460 ; 3 M. & S. 497 40, 46, 63, 208 R. r. Mutters (1865), 34 L. J. M. C. 54 ; 11 L. T. 642 ; 13 W. R. 326 227 R. V. Negus (1873), L. R. 2 C. C. R. 37 ; 42 L. J. M. C. 62 ; 28 L. T. 646 ; 21 W. R. 687 7, 11, 12, 32 R. V. Newton (1834), 1 A. & E. 238 46, 136 R. V. Newton Toney (1788), 2 T. R. 463 141 R. V. Northowran (1846), 9 Q. B. 24 46 R. V. Northwingfield (1831), 1 B. & Ad. 912 97, 98 R. v. Norton (1808), 9 East, 206 58 R. V. Nutt (1728), 1 Barnard, 305 230 R. V. Odiham (1788), 2 T. R. 622 141 R. V. Owen, (1902) 2 K. B. 436 ; 71 L. J. K. B. 770 ; 87 L. T. 298 ; 51 W. R. 168 692 R. V. Palin, (1906) 1 K. B. 7 ; 75 L. J. K. B. 15 ; 93 L. T. 673 ; 22 T. L. R. 41 230 R. r. Parnell (1881), 14 Cox, C. C. 508 570, 571 R. V. Parsons (1763), 1 W. Bl. 392 572 R. V. Pease (1832), 4 B. & Ad. 30 ; 38 R. R. 207 230 R. v. Peck (1699), 1 Salk. 66 151, 205, 214 R. V. Pendleton (1812), 15 East, 449 137, 141 R. V. Peyton (1784), 1 Leach, 324 43 R. r. Ponsouby (1842), 3 Q. B. 14 42, 48 R. V. Prince (1868), L. R. 1 C. C. R. 150 ; 38 L. J. M. C. 8 ; 19 L. T. 364 ; 17 W. R. 179 55 R. f. Privett (1846), 1 Den. C. C. 193 ; 2 C. & K. 114 326 R. V. Proud (1867), 31 L. J. M. C. 71 ; L. R. 1 C. C. R. 71 ; 5 L. T. 331 ..11, 614 R. V. Pucklechurch (1804), 5 East, 382 141 R. V. Raiuham (1801), 1 East, 531 40, 46 R. V. Raschen (1878), 38 L. T. 38 ' 183 R. V. Redford (1869), 11 Cox, C. C. 367 12 R. V. Rees (1836), 7 C. & P. 568 44 R. V. Registrar of Friendly Societies (1872), L. R. 7 Q. B. 741 ; 41 L. J. Q. B. 336; 27L. T. 229 584, 585 R. V. Reynolds (1795), 6 T. R. 497 200 R. V. Ridley (1811), 2 Camp. 650 148 R. V. Riley (1853), 22 L. J. M. C. 48 34 R. V. Ripon (1808), 9 East, 295 62 R. V. Roach (1795), 6 T. R. 247 64 R. r. Rolvenden (1815), 1 M. & R. 691 142 Ivi TABLE OF CASES. PAGE R. r. Rowlands (1851). 17 Q. B. 671 ; 5 Cox, C. C. 437 ; 21 L. J. M. C. 81 . . 670, 571, o98 R. t'. St. Andrews (1828), 8 B. & C. 679 13C, 142 R. ('. St. John (1829), 9 B. & C. 896 58, 171 R. r. St. Luke's Hospital (1760), 2 Bun-. 10'>3 17 R. V. St. Martins (1828), 8 B. & C. 674 142 R. V. St. Martins (183o), 2 A. & E. 655 206 R. V. St. Mary, 2 Boll. 275 112 R. V. St. Mary (1815), 4 M. .t S. 315 141 R. V. St. Mary-at-the-Wall (1834), 5 B. & Ad. 1023 58 R. V. St. Mary Kallendar (1748), 1 Bur. S. C. 274 208 R. V. St. Nicholas (1736), Bur. Sc. 91 63 R. r. St, Peters (1769), Bur. Sc. 638 64 R. V. St. Peter.s (1763), Bur. S. C. 513 141 R. V. St. Peters-on-the-HiU (1741), 2 Bott. 367 87 R. V. St. Petrox (1791), 4 T. R. 196 62 R. V. Saltern (1784), 1 Bott. 613 62 R. V. Sandhurst (1827), 7 B. & C. 557 135 R. V. Sankey (1836), 5 A. & E. 423 168 R. V. Scott (1842), 3 Q. B. 547 ; 11 L. J. Q. B. 254 ; 61 R. R. 309 235 R. v. Seaton (1784), Cald. 440 141 R. V. Selborne (1859), 2 E. & E. 275 64 R. V. Selsby (1847), 5 Cox, C. C. 495, n 598 R. V. Shannan (1854), Dears. 285 ; 23 L. J. M. C. 51 ; 2 W. R. 227 156 R. r. Shepherd (1869), 11 Cox, C. C. 325 600 R. V. Shinfield (1811), 14 East, 541 46, 109 R. V. Silvester (1864), 33 L. J. M. C. 79 ; 9 L. T. 682 ; 12 W. R. 375 312 R. V. Skeffiugton (1820), 3 B. & A. 382 208 K. r. Smith (1837), 8 C. & P. 153 147, 598 R. V. Smith (1823), R. & R. 516 248 R. V. South Newton (1830), 10 B. & C. 838 41 R. V. Sow (1817), 1 B. & Aid. 178 112 R. V. Spencer (1815), R. & R. 299 8, 10 R. r. Spon Lane Colliery (1878), 3 Q. B. D. 673 ; 48 L. J. M. C. 25 ; 39 L. T. 13; 27 W. R. 46 403 R. r. Spurrell (1865), L. R. I Q. B. 72; 35 L. J. M. C. 74 ; 13 L. T. 364; 14 W. R. 81 41, 50 R. V. Squire (1818), R. & R. 349 ; 2 Stark. 349 10 R. V. Stainer (1870), 1 C. C. R. 230; 39 L. J. M. C. 54; 21 L. T. 758; 18 W. R. 439 569, 584 R. v. Stamford (1844), 6 Q. B. 433 ; 66 R. R. 449 77 R. V. Stephens (1866), L. R. 1 Q. B. 702 ; 35 L. J. Q. B. 251 ; 7 B. >.^: S. 710 ; 14 L. T. 593; 10 Cox, C. C. 340 274, 278 R. V. Stoekbridge (1773), Bur. S. C. 759 141 R. V. Stoke-upon-Trent (1843), 5 Q. B. 303 ; 13 L. J. M. C. 41 ; 8 Jur. 34 . . 85 R. t). Stokesley (1796), 6T. R. 757 112 R. V. Stowmarket (1808), 9 East, 211 29 R. v. Stuart, (1894) 1 Q. B. 310 ; 63 L. J. M. C. 63 ; 70 L. T. 44 ; 42 W. R. 303 12 R. V. Sudbrook (1803), 1 Smith, 55 183 R. V. Sutton (1794), 5 T. R. 657 183, 192 R. V. Tardebigg (1 753), Sayer, 1 00 ; Bur. S. C. 322 72, 99, 192 TABLE OF CASES. Ivil PAGE R. V. Taunton (1829), 9 B. & C. 831 58 R. V. Taylor (1812), 15 East, 460 228 E,. V. Taylor, (1908) 2 K. B. 237 533, 536 R. V. Ten-ott (1803), 3 East, 506 47 R. V. Thames Dittou (1785), 4 Doug. 301 28, 110 R. V. Tipton (1H29), 9 B. & C. 888 46 R. V. Tite (1861), 30 L. J. M. C. 142; L. & C. 29 ; 4 L. T. 259; 9 W. R. 554 11, 12 R. V. Tiverton (1861), 30 L. J . M. C. 79 ; 3 L. T. 696 49 R. v. Tongue (I860), 30 L. J. M. C. 49 ; Bell, C. C. 289 ; 3 L. T. 415 ; 9 W. R. 59 11 R. i^. Turner (1870), 11 Cox, C. C. 551 12 R. V. Turner (1811), 13 East, 230 571 R. V. Tynemouth (1810), 12 East, 46 ; 11 R. R. 328 47 R. r. Walker (1858), 27 L. J. M. C. 207 ; 1 Dears. & B. 600 ; 6 \V. R. 505. . 10, 32 R. V. Wall Lynn (1838), 8 A. & E. 379 48 R. V. Walter (1799), 3 Esp. 21 274 R. V. Warburton (l.>70), L. R. 1 0. C. R. 274 571 R. V. Warden (18:^8), 2 M. & R. 24 208 R. V. Warminster (1826), 6 B. & C. 77 ; 9 D. & R. 70 142 R. V. Watts (1837), 7 A. & E. 461 12 R. V. Webb (1835), 1 Moore, C. C. 431 324 R. V. Weddington (1774), Bur. S. C. 766 208 R. V. Welch (1853), 2 E. & B. 357 ; 22 L. J. M. C. 145 106 R. V. Welford (1778), Cald. 57 178, 192 R. V. Westerleigh (1773), Bur. S. C. 753 58 R. V. Westmeon (1781), Cald. 129 17«, 179 R. V. Weyhili (1759), 2 Bott. 185 ; 1 W. Bl. 206 Ill R. V. White (1839), 8 C. & P. 742 14 R. f. Whitnush (1827), 7 B. & C. 596 ,. 312 R. V. Wilcock (1845), 7 Q. B. 317 ; 14 L. J. M. C. 104 318 R. V. Wilson (1806), R. & R. 115 43 R. V. Winehcomb (1780), 1 Doug. 391 58 R. V. Winterset (1783), Cald. 298 183 R. V. Wishford (1S35), 4 A. & E. 216 46 R. V. Witnesham (1835), 2 A. & E. 648 58 R. V. Witt (1829), 1 Mood. C. C. 248 43 R. V. Woodhead (1836), 1 M. & R. 549 324 R. V. Woodhurst (1818), 1 B. & Aid. 325 142 R. V. Worfield (1794), 5 T. R. 506 137, 141 R. V. Wortley (1S51), 21 L. J. M. C. 44 ; 2 Den. C. C. 333 52, 88 Radley r. L. At N. W. Rail. Co. (1876), 1 A. C. 754 ; 46 L. J. Ex. 573 ; 35 L. T. 637 ; 25 W. R. 147 304 Raili-oad Co. v. Banning (1872), 15 Wall. 649 272 Radway and Electric Co., Re (1888), 38 C. D. 597; 57 L. J. Ch. 1027; 59 L. T. 22 ; 36 W. R. 730 95 Raine v. Jobson, (1901) A. C. 404 ; 70 L. J. K. B. 771 ; 85 L. T. 141 ; 49 W. R. 705 518 Raitt V. Mitchell (18 .5), 4 Camp. 146 167 Randell v. Trimen (1856), 18 C. B. 786 ; 25 L. J. C. 1*. 307 223 Randleson v. Murray (1838), 8 A. & E. 109 ; 3 N. & P. 239 19, 258 Raunie v. Irvine (1844), 7 M. & G. 969 ; 14 L. J. C. P. 10 ; 8 Jur. 1051 104 IVIU TABLE OF CASES. PAGE Rapson r. Cubitt (1842), 9 M. & W. 710 ; 11 L. J. Ex. 271 ; Car. & M. 64 38, 249, 250 Rawlinjrs r. Chandler (1854), 9 Exch. fiS7 114 Rawlinsnn v. Clarke (1846), 15 IVT. & W. 292 ; 15 L. J. Ex. 171 52 Rawlinson v. Moss (1861), 30 L. J. Ch. 797 : 4 L. T. 619 ; 9 W. R. 733 206 Raymond v. Minton (1S66), L. R. 1 Ex. 244 ; 35 L. J. Ex. 153 : 14 L. T. 367 ; 14 VV. R. 675 150, 190 Rayner v. Mitchell (1877), 2 C. P. D. 357 ; 25 W. R. 633 243, 208 Readi'. Dunsraore (1840), 9 C. & P. 588 161, 172, 179, 184 Read v. G. E. Rail. Co. (1868), L. R. 3 Q. B. 555 ; 37 L. J. Q. B. 278 ; IS L. T. 82; Ki W. R. 1040 627 Read c. Operative Stonemasons. (1902) 2 K. B. 732 ; 71 L. J. K. B. 994 ; 87 L. T. 493; 51 W. R. 115 196, 197 Reddie v. Scoolt (1795), Peake, 316 203 Redgate v. Haynes (1876), 1 Q. B. D. 89 ; 45 L. J M. C. 65 ; 33 L. T. 779 275, 276 Rodyrave v. Kelly (1889), 37 W. R. 543 : 5 T. L. R. 477 337 Redgrave v. Lloyd, (1895) 1 Q. B. 876; 64 L. J. M. C. 155 : 72 L T. 565 ; 43 W. R. 527 ; 59 J. P. 293 473 Reedie *■. L. cV N. W. Rail. Co. (1849), 4 Exch. 244 ; 20 L. J. Ex. 65 ; 6 Rail. Cas. 184 13, 14, 21. 38, 249 Reeks v. Kyuoch (1902). 18 Times L. R. 34 . . 651 Rees i\ Peurikyber, (1903) 1 K. B. 259 ; 72 L. J. K. B. 85 ; 87 L. T. 661 ; 51 W. R. 247 ; 07 J. P. 231 650, 676 Rees V. Thomas, (1899) 1 Q. B. 1015; 68 L. J. Q. B. 539 ; 80 L. T. 578 ; 47 W. R. 504 65 1 , 654 Reeve v. Reeve (1858), 1 F. & F. 280 110 Reginald's Case (1640), Cro. Car. 563 156 Reid V. Explosives Co. (1887), 19 Q. B. D. 284 ; 56 L J. Q. B. 388 ; 57 L. T. 439; 35 W. R. 509 128, 157 Reudall r. Hill's Dry Dock, (1900) 2 Q. B. 245 ; 69 L. J. Q. B. 554 ; 82 L. T. 521 ; 48 W. R. 530 ; 64 J. P. 451 663 Renno v. Bennett (1842), 3 Q. B. 768 ; 12 L. J. Q. B. 17 173 Reynolds v. Gex (1865), 34 L. J. Q. B. 251 ; 7 B. & S. 86 ; 13 W. R. 968 .... 217 Rhodes f. Forwood (1876), 1 A. C. 256 ; 47 L. J. Ex. 396 ; 34 L. T. 890 ; 24 W. R. 1078 94 Rhodes v. Leach (1819), 2 Stark. 516 31 Rhodes v. Swithenbank (1889), 22 Q. B. D. 577 ; 58 L. J. Q. B. 287 ; 60 L. T. 856 ; 37 W. R. 457 61 Rich V. Pierpout (1862), 3 F. & F. 35 181 Richards v. West Middlesex Waterworks (1885), 15 Q. B. D. 660 ; 54 L. J. Q. B. 551; 33 W. R. 9'i2 241, 269 Richardscm c. Cartwright (1844), 1 C. & K. 328 215 Richardson r. Dubois (18 = 9), L. R. 5 Q. B. 51 ; 39 L. J. Q. B. 69 ; 21 L. T. 635 : 18 W. R. 62 73 Richardson v. Greese (1743), 3 Atk. 69 130 Richardson V. Mellish (1824), 2 Bing. 229; 9 Moore, C. P. 435; 1 C. & P. 421 100, 158 Richardson v. Williamson (1871), L. R. 6 Q. B. 270 ; 40 L. J. Q. B. 145 223 Richmond r. Smith (1828), 8 B. & C. 9 236 Rideal v. G. W. Rail. Co. (1858), 1 F. & F. 706 627 Ridgway v. English, 22 N. J. 409 112 Ridgway v. Hungerford Market Co. (1835), 3 A. & E. 171 ; 4 L. J. K. B. 157 125, 176, 183, 184, 185, 186 Ridgway r. Wharton (1857), 6 H. L. C. 238 ; 27 L. J. Ch. 46 ; 5 W. R. 804. . 84 TABLE OF CASKS. Hx FAQE Ri^by V. Connol (1880), 14 C. D. 482 ; 49 L. J. Ch. 3-28 ; 42 L. T. 139 ; 28 W." R. 650 163, o78, 579, 581 Rigby V. Cox (No. 1), (1904) 1 K. B. S'jS ; 73 L. J. K. B. 80 ; 89 L. T. 717 ; 52 W. R. 195 ; 68 J. P. 195 090 Rigby V. Cox (No. 2), (1904) 2 K. B. 208 ; 73 L. J. K. B. 690 ; 91 L. T. 72 ; 68 J. P. 3S5 690 Riley v. BaxondaU- (1861), 6 H. & N. 445 ; 30 L. J. Ex. 87 ; 9 W. R. 347 . . 309 Rimell v. Samptiyo (1824), I C. & P. 254 219, 221 Rishton v. Grissell (1870), 5 Eq. 326 ; 10 Eq. 393 132 Rist r. Faux (1863), 4 B. & S. 409; 32 L. J. Q. B. 386 ; 8 L. T. 737 : 11 VV. R. 918 198, 203 Ritchie v. Bowsfield (1817), 7 Taunt. 309 260 Rixsom V. Pritchard, (1900) 1 Q. B. 800 ; 69 L. J. Q. B. 494 ; 82 L. T. 186 . . 519 Robb V. Grecu, (1895) 2 Q. B. 315 ; 64 L. J. Q. B. 593 ; 73 L. T. 15 ; 44 W. R. 25 . . 175, 176, 177 Roberts, Ex parte, (1900) 1 Q. B. 122 ; 69 L. J. Q. B. 19 ; 81 L. T. 467 ; 48 W. R. 132 210 Roberts v. Havelock (1S32), 3 B. & Ad. 404 121 Roberts r. Smith (1859), 4 II. & N. 315 ; 26 L. J. Ex. 319 114, 291, 295, 309 Robertson v. Jenner (1867), 15 L. T. (N. S.) 514 143 Robertson v. McDonagh (1880), 14 Cox, C. C. 469 57 Robertson v. Russell (1855), 12 Sc. Sess. Ca. (4th ser.) 034 38 Robinson v. Cushman, 2 Denio, 149 112 Robiiison v. Davison (1871), L. R. 6 Ex. 269 ; 40 L. J. Ex. 172 ; 24 L. T. 755 ; 19 W. R. 1036 183, 205 Robinson v. Hindman (1800), 3 Esp. 235 174 Robson r. Sharpe (1831), 2 B & A. 302 213 Roe V. Birkeuhead (1851), 7 E^ch. 36 ; 21 L. J. Ex. 91 ; 6 Rail. Cas. 795. .248, 267 Rogers, Re, (1894) 1 Q. B. 425 ; 63 L. J. Q. B. 178 ; 70 L. T. 107 129 Rogers v. Clifton (1803), 3 B. & P. 587 153, 154 Rogers v. Haddocks, (1892) 3 Ch. 346 : 62 L. J. Ch. 219 ; 67 L. T. 329 104 Rogers v. Manchester P. Co., (1898) 1 Q. B. 344 ; 67 L. J. Q. B. 310 ; 78 L. T. 17 ; 46 W. R. 350 538, 539 Rolfe V. Hyde (1881), 6 Q. B. D. 673 ; 50 L. J. Q. B. 481 ; 44 L. T. 775; 45 J. P. 632 26 RoUo V. Thompson (1857), 19 D. 994 188 Roper V. Greenwood (1900), 83 L. T. 471 655 Roseuquist v. Bowring & Co., (1908) 2 K. B. 108 ; 77 L. J. K. B. 545 681 Ross f. Parkyns (1875), 20 Eq. 331; 44 L. J. Ch. 610; 30 L. T. 331; 24 W. R. 5 53 Ross V. Pender (1874), 1 R. 352 158, 159, 171 Rourke v. White Moss Colliery (1876), 2 C. P. D. 205 ; 4 6 L. J. C. P. 283 ; 36 L. T. 49 15, 2S6, 288, 307 Roussillon v. R. (1880), 14 C. D. 351 ; 49 L. J. Ch. 339 ; 42 L. T. 679 ; 28 W. R. 623 102 Routledge v. Hislop (1860), '.^9 L. J. M. C. 90 ; 2 E. & E. 549 ; 2 L. T. 53 ; 8 W. R. 303 612 Royal Aquarium r. Parkinson, (1892) 1 Q. B. 431 ; 61 L. J. Q. B. 409; 66 L. T. 513 ; 40 W. R. 450 154 Royce v. Charlton (1881), 8 Q. B. D. 1 ; 45 L. T. 712 ; 30 W. R. 274 ; 46 J. P. 197 150 Ruben v. Great Fiugall Consolidated, (1906) A. C. 439 ; 75 L. J. K. B. 843; 95 L. T. 214 235, 270 Ruddiman r. Smith ( 1 889), 60 L. T. 708 238, 270 RumboU r. Nunnery Colliery (1899), SO L. T. 42 651 Ix TABLE OF CASES. PAGE Ruraseyt'. Webb (1841), C.&M. 104; 11 L. J. C. P. 129 156 Rusby V. Scarlett (180;5), 5 Esp. 76 -1^ Rushforth V. Hadfield ^1806), 7 East, 224 1^6 Russell V. Lee (14 Car. II.), 1 Lev. 86 ^'1 RusseU's Patent (1857), 2 De G. & J. 130 ; 6 W. R. 95 188 Ruth r. Surrey Commercial Dock (1891), 8 T. L. R. IIG 5, 259, 270 Ryau r. Jenkiiison (1855), 25 L. J. Q. B. 11 140 Ryder v. Wumbwell (1868), L. R. 3 Ex. 90 60 Saboui r. Kirkmau (1836), 1 M. & W. 423 -05 Sadler v. Heiilock (1855^, 4 E. & B. 570 : 24 L. J. Q. B. 138 ; 3 C. L. R. 760. . 38, 258 St. Bartholomew Case (1750), 2 Burr. 1061 47 St. Nicholas V. St. Botolph (1862), 12 C. B. (N. S.) 615 ; 31 L. J. M. C. 258 ; 6 L. T. 495 '^'•^ Sainter v. Ferguson (1849), 7 C B. 716 ; 18 L. J. C. P. 217 ; 13 .Tur. 828 .... 104 Salford Corporation v. Lever (1890), 25 Q. B. D. 363 ; 59 L. J. Q. B. 483 ; 38 W. R. 771 ; 39 W. R. 85 187 Salton V. New Beestun S. Co., (1900) 1 Ch. 43 ; 69 L. J. Ch. 20 ; 81 L. T. 437 ; 48 W. R. 92 '-^2* Sandeman r. Scurr (1866), L. R. 2 Q. B. 86 ; 36 L. J. Q. B. 58 •. 15 L. T. 608 ; _ 15 W. R. 277 -1 ' Sanders v. St. Neots (184b), 8 Q. B. 810 ; 15 L. J. M. C. 104 ; 10 Jur. 566 . . 77 Sanderson v. Bell (1834), 2 C. & M. 304 ; 3 L. J. Ex. 66 167, 220 Sanderson r. Collins, (1904) 1 K. B. 628 ; 73 L. J. K. B. 358 ; 90 L. T 243 ; 52 W. R. 354 19' 243, 244, 270 Sandiman v. Breach (1827), 7 B. & C. 96 311 Santos r. Illidge (1860), 8 C. B. (N. S.) 861 ; 29 L. J. C. P. 348 ; 8 W. R. 705. 28 Sara, The (18S9), 14 A. C. 209 ; 58 L. J. P. 57 ; 61 L. T. 26 ; 38 W. R. 129 . . 166 Saterthwaite v. Duerst (1785), 5 East, 47, n 203 Saunders r. Crawford (1882), 9 Q. B. I). 613 ; 51 L. J. Q. B. 460 ; 46 L. T. 420 ; 46 J. P. 344 454 Saunders r. Whittle (1876), 33 L. T. (N. S.) 816 ; 24 W. K. 406 619 Savage v. Walthew (1706), 11 Mod. 135 174 Savile V. Roberts (10 Will. TIL), I Ld. Rayni. 377 573 Savoy Hotel v. Loudon C. C, (1900) 1 Q. B. 665 ; 6!) L. J. Q. B. 274 ; 82 L. T. .56 ; 48 W. R. 351 558, 559 Saxton V. Hawksworth (1872), 26 L. T. (N. S.) 851 292, 309 Scarfe r. Morgan (1838), 4 M. & W. 270 ; 7 L. J. Ex. 324 ; 2 Jur. 569. . . . . . 167, 168, 312 S'carman v. Castell (1795). 1 Esp. 270 147 SchmaUug v. Tomlinson (1815), 6 Taunt. 147 : 1 Marsh, 500 213 Schofield V. Schunk (1855), 24 L. T. 2.)3 473 Schumann, Ex parte (1887), L. R. 19 Ir. 240 128 Schwan, The, (1892) P. 419 ; 69 L. T. 34 260 Schwerzerhof v. Wilkins, (1898) 1 Q. B. 640 ; 67 L. J. Q. B. 476 ; 78 L. T. 229 ; 62 J. P. 247 '''1*^ Scott V. Bould, (1895) 1 Q. B. 9; 64 L. J. M. C. 16; 71 L. T. 577; 18 Cox, C. C. 52 409 Scott V. Clifton S. B. (1884), 14 Q. B. D. 500 ; 1 Cab. & E. 435 ; 52 L. T. 105 ; 33 W. R. 368 '^ TABLE OF CASKS. Ixi I'AOK Scott V. Morley (1887), 20 Q. B. B. 120 ; 57 L. J. Q. B. 43 ; 57 L. T. 010 ; _ 36 W. R. 67 '■■^ Seaman i-. Bijrj,' (1638), Cro. Car. 480 !•'>« Searo v. Prentino (1807), 8 East, 348 '^0 Searle v. Lindsay (1861), 11 C. B. (N. S.) 429 ; 31 L. J. C. P. 100 ; 10 W. R. 89;.5L. T. 427 2«2, 30< Searle v. Reynolds (1866), 7 B. & S. 7U4 ; 14 L. T. (N. S.) 518 276 Soarlc V. Ridley (1873), 28 L. T. 411 1«0. 186 Seaward v. Paterson, (1897) 1 Oh. 545; 66 L. J. Ch. 267; 76 L. T. 215; 45 W. R. 610 --' Selby V. Baldry (1867), 5 S. L. R. 64 1"^ Sellen v. Norman (1829), 4 C. & P. 80 132, 147 Selaey v. Rhoadcs (1824), 2 S. & S. 49 41 Senior v. Fountains, (1007) 2 K. B. 563 ; 76 L. J. K. B. 928 ; 97 L. T. 562 ; 23 T. L. R. 634 «^ ' Senior v. Ward (1859), 1 E. & E. 385 ; 28 L. J. Q. B. 130 ; 7 W. R. 261 .... 304, ^ ' 307, 309 Seroka v. Kattenberg (1886), 17 Q. B. D. 177 : 55 L. J. Q. B. 375 ; 54 L. T. 649 ; 34 W. R. 542 '- Serres, Re (1862), 31 L. J. Ch. 510 ; 6 L. T. 802 ; 10 W. R. 751 9 Seward v. Vera Cruz (1884), 10 A. C. 50 ; 54 L. J. P. 9 ; 52 L. T. 474 ; 33 _ W. R. 477 ; 49 J. P. 324 C4o Seymour r. Greenwood (1861), 7 H. & N. 355 ; 30 L. J. Ex. 387 ; 4 L. T. 833 ; 9 W. R. 785 241, 268 Seymour v. Maddox (1851), 16 Q. B. 326; 20 L. J. Q. B. 327; 15 Jur fy.^o 280, o09 Shackell v. Rosier (1836), 2 Bing. N. C. 634 ; 3 Seott, 59 ; 5 L. J. C. P. 193 . . 144 Shaffers v. Gen. Steam Nav. Co. (1883), 10 Q. B. D. 356 : 52 L. J. Q. B. 260 ; 48 L. T. 228 ; 81 W R. 656 634 Shallcross v. Wright (1850), 12 Beav. 558 ; 10 L. J. Ch. 443 116 Sharland, Re, (IsOG) 1 Ch. 517 ; 65 L. J. Ch. 280 ; 74 L. T. 20 9 Sharman v. HoUiday, (1904) 1 K. B. 235 ; 73 L. J. K. B. 176 ; 00 L. T. 46 ; 68 J. P. 151 687 Sharp v. Hainsworth (1862), 32 L. J. M. C. 33 : 3 B. & S. 130 ; 7 L. T. 320 ; 1 1 W. R. 36 1^4' 61^ Sharp V. Johnson, (ItOS) 2 K. B. 130 ; 74 L. J. K. B. 566 ; 02 L. T. 675 ; 53 W. R. 507 ^^^ Shaw V. Chairitie (1850), 3 C. & K. 21 180 Shenton v. Smith, (1805) A. C. 220 ; 64 L. J. P. C. 110; 72 L. T. 130; 43 W. R. 637 '^' Sheperd v. Wakeman (1673), 1 Sid. 70 1'-^* Sherras v. De Rutzen, (1895) 1 Q. B. 018 ; 64 L. J. M. C. 218 ; 72 L. T. 830 ; 43 W. R. 526 -'-8. -' ' Shield v. Legge (1880), unreported 172 Shiells r. Blackburne (1789), 1 H. Bl. 158 180 Shiells V. Edinburgh and Glasgow Rail. Co. (1850), 18 F. 1109 2oS Shine, Ex parte, (1892) 1 Q. B. 522 ; 61 L. J. Q. B. 253 ; 66 L. T. 146 ; 40 W.R. 386 1-"^'^1-^ Shirreff's Case (1872), 14 Eq. 417 ; 42 L. J. Ch. 5 ; 20 W. R. 966 159 Siberyv. Connelly (1905), 22 Times L. R. 175 171 Silki'. Oaborn (17'4), 1 E-^p. 139 -10 Silverton v. Marriott (1888), 59 L. T. 61 ; 52 J. P. 677 251 Sim V. Evans (1875), 23 W. R. 730 364 Simmons, Ex parte (1858), 30 L. T (O. S.) 311 134 Sijnmous v. Faulds (1901), 17 T. L. R. 352 650 Ixii TABLE OF CASES. PAGE Simpson i-. Ciippin (1873), L. R. 8 Q. B. 14 ; 42 L. J. Q. B. 28 : 27 L. T. 546 ; 21W. R. 141 19-i Simpson v. Ebbw Vale, &c., (190o) 1 K. B. 453 ; 74 L. J. K. B. 347 ; 92 L. T. 282 ; 53 W. R. 390 650 Simson t-. Cooke (1824), 1 Bing. 452 ; 8 Moore. 588 ; 2 L. J. (O. S.) C. P. 74. . 206 Sinclair v. Bowles (1829), 9 B. & C. 92 ; 4 M. & R. 1 120, 122 Singleton v. Eastern Rail. Co. (1859), 7 C. B. (N. S.) 287 304 Skinner, Ex parte (1833), Mont. & Bli. 417 133 Skinner v. Gunton (21 Car. II.), 1 Wms. Saund. 229 b 573 Skinner v. Kiteh (1867), 10 Cox, C. C. 493 ; L. R. 2 Q. B. 393 ; 36 L.J. M. C. 116; 16L. T. 413; 15 W. R. 830 570 Skipp V. Eastern Counties Rail. Co. (1853), 9 Exch. 223 ; 23 L. J. Ex. 23 ; 3 C. L. R. 185 '28(', 292, 309 Skrine v. Gordon (1875j, 9 Ir. C. L. 479 60 Slater v. Baker (1767), 2 WOs. 359 . . 180 Slave Grace Case (1827), 2 Hagg. Adm. 94 ; 2 St Tr. (N. S.) 273 28 Sleath V. Wilson (1839), 9 C. & P. 607 ; 2 M. & R. ISl 243, 267 Sleech «'. Thorington (1754), 2 Ves. Sen. 560 8 Smart v. West Ham Union (1856), 11 Kxch. 8G7 ; 24 L. J. Ex. 201 77 Smith V. AUen (1862), 3 F. & F. 157 ISO, 184 Smith V. Associated Omnibus Co., (1907) 1 K. B. 916 ; 76 L. J. K. B. 574 ; 96 L. T. 675 ; 7lJ. P 239 618 Smith V. Baker, (ISDl) A. C. 325 ; 60 L. J. Q. B. 083 ; 65 L. T. 467 ; 55 J. P. 660 171, 294, 296, 299, 300, 301, 626, 628, 633, 647 Smith V. Browne (1705), 2 Salk. 666 27 Smith v. Cartwright (1851), 6 Exch. 927 ; 20 L. J. Ex. 401 78 Smith t'. Cator (1819), 2 B. & Aid. 778 88 Smith r. CuflP (1817), 6 M. & S. 160 145 Smith V. Gold Coast, &c., (1903) 1 K. B. 538 ; 72 L. J. K. B. 235 ; 88 L. T. 202 ; 19 T. L. R. 152 83 Smith V. Hay ward (1837), 7 A. & E. 544 ; 2 N. & P. 432 ; 7 L. J. Q. B. 3. . . . ICO Smith r. Howard (1870), 22 L. T. (N. S.) 130 291, 298 Smith V. Hull Glass Co. (1852), 11 C. B. 897 ; 21 L. J. C. P. lOG; 7 Riiil. Cas. 287 221 Smith V. Koal (1882), 9 Q. B. D. 340 ; 47 L. T. 142 : 31 W. R. 76 260 Smith V. Kyle, (1902j 1 K. B. 286 ; 71 L. J. K. B. 16 ; 85 L. T. 428 ; 50 W. R. 319 '''■^'■. 558 Smith V. Lanes. & Torks. Rail. Co., (1899) 1 Q. B. 141 ; 68 L. J. Q. B. 51 ; 79 L. T. 633 ; 47 W. R. 146 653, 690 Smith V. Lawrence (1828), 2 M. & R. 1 16, 258 Smith V. McGuire (1858), 3 H. & N. 561 : 27 L. J. Ex. 465 221 Smith V. Moody, (1903) 1 K. B. 56; 72 L. J. K. B. 43, 87 L. T. 682 ; 51 W. R. 252 ; 67 J. P. 69 600 Smith V. Nenle (1857), 2 C. B. (N. S.) 67 ; 26 L. J. C. P. 143 ; 5 W. R. 563. . 82 Smith V. North Metropolitan Tramways Co. (1891), 55 J. P. 630 238, 270 Smith r. Seghill (1875), L. R. 10 Q. B. 422; 44 L. J. M. C. 114 ; 32 L. T. 859 ; 23 W. R. 745 -19 Smith V. Sibray Hall & Co., (1903) 2 K. B. 707 ; 72 L. J. K. B. 822; 89 L. T. 358 ; 67 J. P. 390 548 Smith V. South Eastern Rail. Co., (1896) 1 Q. B. 178 ; 65 L. J. Q. B. 219 ; 73 L. T. 614; 44 W. R. 291 242, 263, 305, 629 Smith r. South Normanton Colliery Co., (1903) 1 K. B. 204 ; 72 L. J. K. B. 76 ; 88 L. T. 5 ; 5 1 W. R. 209 653 Smith V. Sparrow (1827), 4 Bing. 84 312 TABLE OF CASES. Ixiii PAGE Smith V. Steele (187o), 44 L. J. Q. B. 60; 32 L. T. (N. S.) 19.5; L. R. 10 Q. B. 125 308 Smith V. ThomasMon (1890), G2 L. T. 68 ; 10 Cox, C. C. 740 ; ryi J. P. 596 600 Smith f. Thompson (1849), 8 C. B. 44; 18 L. J. C. P. 314 lo'^, 177 Smith V. Walton (1877), 3 C. P. D. 109 ; 47 L. J. M. C. 45 ; 37 L. T. 437. . 334, 338 Smith V. Watson (1824), 2 B. & C. 401 52 Smout V. Ilberj (1842), 10 M. & W. 1 ; 12 L. J. Ex. 357 224 Smurthwaite v. Haunay, (1894) A. C. 494 ; 63 L. J. Q. B. 737; 71 L. T. 157 ; 43 W. R. 113 639 Snark, The, (1899) P. 74 ; 68 L. J. P. 22 ; 80 L. T. 25 ; 47 W. R. 398 255 Snelling »•. Hunting-field (1834), 1 C. M. & R. 20 ; 3 L. J. Ex. 232 82 Snowdon v. Davis ( 1 808), 1 Tniiut. 359 224 Somerset r. Hart (1884), 12 Q. B. D. 360 ; 53 L. J. M. C. 77 ; 48 J. P. 327 . . 275, 276, 277 Somerset v. Wade, (1894) 1 Q. B. 574 ; (.3 L. J. M. C. 126; 70 L. T. 452; 42 W. R. 399 277 Somerville v. Hawkins (1851), 10 C. B. 583; 20 L. J. C. P. 131 ; 15 Jur. 450. . 154, 155 Somes v. British Empire Shipping Co. (1860), 8 H. L. C. 338 ; 30 L. J. Q. B 229 ; 8 W. R. 707 168 Sommersett's Case (1772), 20 Howell's St. 1 27 Souch V. Stnwbridge (1846), 2 C. B 808 ; 15 L. J. C. P. 170 82, 85 South of IreLind Collierv v. Waddle (1868j, L. R 4 C. P. 617 ; 37 L. J. C. P. 211 ; 18 L. T. 405 ; 17 W. R. 296 75 South Staffordshire Water Co. v. Sharman, (1896) 2 Q. B. 44 ; 65 L. J. Q. B. 460; 74 L. T. 761 ; 44 VV. R. 653 35 Southcote r. Stanley (1856), 1 H. & N. 250 ; 25 L. J. Ex. 339 227 Southerne v. How (15 Jac. I.), Cro. Jac. 468 264 Sowdon V. Mills (1861), 30 L. J. Q. B. 176 ; 3 L. T. 754 157 Spaight r. Tedeastle (1881), 6 A. C. 217 ; 44 L. T. 5S9 ; 29 W. R. 761 ; 4 Mar L. C. 406 260 Spain V. Amott (1817), 2 Sta. 256 ; 19 R. R. 715 171, 172, 186, 192 Speck r. Phillips (1839), 5 M. & W. 279 ; 8 L. J. Ex. 277 157, 178 Speight f. Oliveira (1819), 2 Stark. 493 203 Spelman t: Fisher Iron Co., 56 Barb. N. Y. 151 302 Spencer v. Shurman (1871), 23 L. T. 873 91 Spice V. Bacon (1877), 2 Ex. D. 463; 46 L. J. Ex. 713 ; 36L. T. 896; 25 W. R. 810 236 Spill r. Maule (1869), L. R. i Ex. 2 12 ; 38 L. J. Ex. 13S ; 20 L. T. 675 ; 17 AV. R. 805 152 Spooner v. Browning, (1898) 1 Q. B. 528 ; 78 L. T. 98 ; 67 L.J. Q. B. 339 ; 46 W. R. 369 215, 221 Spotswood r. Barrow (1850), 5 Exch. 110 ; 19 L. J. Ex. 226 177, 185 Sproul r. Hemmiugway, 14 Pick. 1 38, 250 Squire v. Bayer, (1901) 2 K. B. 299 ; 70 L. J. K. B. 705 ; 85 L. T. 247 ; 49 W. R. 557 ; 65 J. P. 629 350 Squire r. Midland Lace Co., (1905) 2 K. B. 448 ; 74 L. J. K. B. 614 ; 93 L. T. 29 ; 53 W. R. 653 ; 69 J. P. 257 618 Squire v. Stanley (19ul), 84 L. T. 535 505 Stafiord r. Clark (1823), 1 C. & P. 24 56 Stalker r. Wallace (1900), 2 F. 1 162 665 Stanland v. N. E. Steel Co. (1900), 23 Times L. R. 1 659, 677 Stanley r. Harvey (,1762), 2 Eden, 125 27 Ixiv TABLE OF CASES. PAGE Stanton's Case (25 Eliz.), Moore, 135 62 Stautou r. Scruttou (1893), 9 Times L. R. 236 i'33 Staple of En<;land v. Bank of England (1887), 21 Q. B. D. IGO ; 27 L. J. Q. B. 418 ; 36 W. R. 880 74 Starling-'s Case (16 Car. II.), 1 Sid. 174 •'^69 Stavely r. Uzielli (1860), 2 F. & F. 30 2ly Steadmau r. Hockley (1846), lo M. & VV. 5.)3 ; 15 L. J. Ex. 332 ; 10 Jiir. 819. . 167 Steel V. Cammell & Co., (1906) 2 K. B. 232 ; 74 L. J. K. B. 610 ; 93 L. T. 357; 53 W. R. 612 655 Steel r. S. E. Rail. Co. (1S55), 16 C. B. 550 38, 250 Steel V. Williams (1853), 8 Exch. 625 ; 22 L. J. Ex. 225 ; 17 Jur. 464 224 Steele r. South Wales Miiiens, (1907) 1 K. B. 361 ; 76 L. J. K. B. 333 ; 96 L. T. '260 ''"*'' 589 Steeven's Hospital v. Djas (1863), 15 Ir. Ch. 405 7b Stephen r. Tliurso Police Commis.siouers (1876), 3 R. 535 258 Stephens c. Dudbridge Ironworks, (1904) 2 K. B. 225 ; 73 L. J. K. B. 739 : 90 L. T. 838; 52 W. R. 644 61, 661, 662 Stephens v. ElwaU (1815), 4 M. & S. 259 226 Stettin, The (1863), Br. & Lush. 199 ; 31 L. J. Adm. 208 ; 6 L. T. 613 260 Stevens v. Benning (1854), 1 K. & J. 168 ; 6 D. M. & G. 223 ; 24 L. J. Ch. 153; 3 W. R. 149 213 Stevens v. Chown, (1901) 1 Ch. 894 ; 70 L. J. Ch. 571 ; 84 L. T. 796 ; 49 W. R. 460 579 Stevens v. Hin.shelwood (1891), 55 J. P. 341 239, 270 Stevens v. Midland Counties Rail. Co. (1854), 10 Exch. 352 ; 23 L. J. Ex. 328 ; 2 C. L. R. 1300 235, 246 Stevens v. Woodward (1881), 50 L. J. Q. B. 231 ; 6 Q. B. D. 318 ; 44 L. T. 153 ; 29 W. R. 506 231, 238, 239, 245; 269 Stevenson v. Craig, (1906) 2 K. B. 298 ; 75 L. J. K. B. 565 ; 95 L. T. HI ; 70 J. P. 340 ; 4 L. G. R. 863 502 Stevenson v. Goldstraw, (1906) 2 K. B. 298 ; 75 L. J. K. B. 565 : 95 L. T. Ill ; 70 J. P. 340 ; 4 L. G. R. 863 503 Stewart v. G. W. Rail. Co. (1865), 2 D. J. & S. 319 ; 13 L. T. (N. S.) 79 ; 13 W. R. 907 627 Stiff V. Cassell (1856), 2 Jur. (N. S.) 348 142 Stiles V. Cardiff S. N. Co. (1864), 33 L. J. Q. B. 310 ; 10 L. T. (N. S.) 844 ; 12 W. R. 1080 233 Stilk r. Meyrick (1809), 6 Esp. 129 117 Stirling v. Maitland (1864), 5 B. & S. 840 ; 34 L. J. Q. B. 1 ; U L. T. 337 ; 13W. R. 76 95 Stocker v. Brockelbank (1851), 3 Mac. & U. 250 ; 20 L. J. Ch. 401 ; 15 Jur. 591 52, 163 Stogden v. Lee, (18;)1) 1 Q. B. 661 ; 60 L. J. Q. B. 069 ; 64 L. T. 494 ; 39 W. R. 467 : 55 J. P. 533 72 Stoke V. Pitmiuster (1726), 2 Bott. 1 83 Ill Stokes V. Checkland (1893), 68 L. T. 457 416 Stokes V. Mellor (1875), 39 J. P. 788 423 Stokes V. Mitcheson, (1902) 1 K. B. 857 ; 71 L. J. K. B. 677; 86 L. T. 767 ; 50 W. R. 553; 66 J. P. 615 416, 420 Stone V. Cartwright (1795), 6 T. R. 41 1 13, 260. 261 Storey v. Ashton (1869), L. R. 4 Q. B. 476: 38 L. J. Q. B. 223; 17 W. R. 727 243, 268 Storey r. Fulham Steel Works (1907), 23 Times L. R. 306 182 TABLE OF CASES. IXV PAGE Stott V. Dickinson (1876), 34 L. T. (N. S.) 291 368, 400, 422 Stribling V. Halse (1885), 16 Q. B. D. 246 ; 55 L. J. Q. B. 15 ; 51 L. T. 268 ; 49 L. J. 727 12 Strick V. Swansea, &c. (1887), 36 C. D. 558 ; 57 L. J. Ch. 438 ; 57 L. T. 392 ; 35 W. R. 831 580, 581 Stroud V. Lawson, (1898) 2 Q. B. 44 ; 67 L. J. Q. B. 718 ; 78 L. T. 729 ; 46 W. R. 626 . . 639 Stuart V. Bell, (1891) 2 Q. B. 341 ; GO L. J. Q. B. 577; 64 L. T. 633; 39 W. R. 612 153, 154, 155 Stuart V. Evans (1883), 49 L. T. 138 5, 629 Stuart V. Nixon, (1901) A. C. 79 ; 70 L. J. K. B. 170 ; 84 L. T. 65 ; 49 W. R. 636 ; 65 J. P. 388 518, 681 Stubbing v. Heintz (1791), 1 Peake, N. P. 66 218, 220 Stubbs V. Holywell Rail. Co. (1867), L. R. 2 Ex. 311 ; 36 L. J. Ex 166 ; 15 W. R. 869 205 Stuckberg v. Spencer (1886), 55 L. J. M. C. 141 ; 51 J. P. 181 229 Stumore v. Breen (1886), 12 A. C. 698 ; 56 L. J. Q. B. 401 161, 174 Summers v. Boyce (1907), 23 Times L. R. 724 176 Summers v. Solomon (1857), 7 E. & B. 879; 26 L. J. Q. B. 301 ; 5 W. R. 660 217. 221 Sutton V. Clarke (1815), 1 Marsh, 429 ; 6 Taunt. 29 263 Swaine v. Wilson (1889), 24 Q. B. D. 250 ; 59 L. J. Q. B. 76 ; 62 L. T. 309 ; 38 W. R. 261; 54 J. P. 484 569, 578, 580, 581 Swainson v. N. E. Rail. Co. (1878), 3 Ex. D. 341 ; 47 L. J. Ex. 372 ; 38 L. T. 201 ; 26 W. R. 413 266, 279, 287, 308, 594 Swansea, &c., Ex parte (1879), 11 C. D. 768 ; 48 L. J. Ch. 577 ; 40 L. T. 551 ; 27 W. R. 596 . .'. 128 Sweeny v. McGilvray (1 886), 24 Sc. L. R. 91 634 Swift V. Winterbotham (1873), L. R. 9 Q. B. 301 ; 43 L. J. Q. B. 56 ; 30 L. T. 31 ; 22 W. R. 319 233 Swire v. Francis (1877). 3 A. C. 106 ; 47 L. J. P. C. IS : 37 L. T. 554 235 Sword V. Cameron (1839), 1 Sc. Sess. Cas. (2nd ser.) 493 ; 1 Dunlop, 493 294 Sydney Cove, The (1815), 2 Dod. 13 169 Sykes v. Dixon (1839), 9 A. & E. 693 ; 8 L. J. Q. B. 102 106, 199 Sykes v. N. E. Rail. Co. (1875), 44 L J. C. P. 191 ; 32 L. T. (N. S.) 199 ; 23 W. R. 473 645 Sylvester, Ex parte (1829), 9 B. & C. 61 228 Taff Vale Rail. Co. v. Amalgamated Society, &c., (1901) A. C. 426 ; 70 L. J. K. B 905 ; 86 L. T. 147 ; 50 W. R. 44 574, 579, 606, 607, 609 Tallis V. Tallis (1853), 1 E. & B. 391 ; 22 L. J. Q. B. 185 ; 1 W. R. 114 101 Tancred v. Allgood (1859), 4 H. & N. 438 ; 28 L. J. Ex. 362 34 Tanner v. Christian (1855j, 4 E. & B. 591 ; 24 L. J. Q. B. 91 ; 3 W. R. 204 . . 224 Tarleton v. McGawley (1794), 1 Peake, N. P. 270 573 Tarrant v. Webb (1856), 18 C. B. 797 ; 25 L. J. C. P. 261 ; 4 W. R. G40. .281, 291, 29S, 309 Tarry v. Ashton (1876), 1 Q. B. D. 319 ; 45 L. J. Q. B. 260 ; 34 L. T. 97 ; 24 W. R. 581 251, 256 Tasker v. Shepherd (1861), 6 H. A: N. 575 ; 30 L. J. Ex. 207 ; 4 L. T. 19 ; 9 W. R. 476 206, 207 Tate V. Latham, (1897) 1 Q. B. 502 ; G6 L. J. Q. B. 349 ; 76 L. T. 336 ; 45 W. R. 400 632, 634 Taylor v. Brewer (1813), 1 M. & S. 290 114 M. <' Ixvi TABLE OF CASES. PAGE Taylor v. CaldweU (1863), 3 B. & S. 82G ; 32 L. J. Q. B. If.l ; 8 L. T. 356 ; 11 W. R. 726 183, 205 Taylor r. Carr (1861), 30 L. J. M. C. 201 ; 4 L. T. 414 ; 9 W. R. 699 ISG Tavlor i: Greenhai<;h (1874), L. R. 9 Q. B. 487 ; 43 L. J. Q. B. 168 ; 31 L. T. 184 : 23 W. R. 4 250 Taylor v. Hawkins (1851), 16 Q. B. 308 ; 20 L. J. Q. B. 313 ; 15 Jur. 746. . . . 154 Taylor V. Hickes (1862), 12 C. B. (N. S.) 152 ; 31 L. J. M. C. 242 ; 6 L. T. 784 539 Taylor v. Laird (1856), 25 L. J. Ex. 329 ; 1 H. & N. 206 Ill, 122, 186, 619 Taylor r. M. S. & L. Rail. Co., (1895) 1 Q. B. 134; 64 L. J. Q. B. 6 ; 71 L. T. 596 ; 43 W. R. 120 201 Tebbutt V. Bristol Rail. Co. (1870), L. R. 6 Q. B. 73 ; 40 L. J. Q. B. 78 ; 23 L. T. 772 ; 19 W. R. 383 269 Teed r. Beere (1859), 24 L. J. Ch. 782 ; 7 W. R. 394 ; 5 Jur. (N. S.) 381 132 Temperton v. Russell, (1893) 1 Q. B. 715 ; 62 L. J. Q. B. 300; 68 L. T. 425 ; 41 W. R. 321 195, 574, 609 Temple r. Prescott (1777), Cald. 14, ii 191 Tenant r. Elliott (1797), 1 B. & P. 3 584 TeiTy V. Hutchinson (1868), L. R. 3 Q. B. 599 : 37 L. J. Q. B. 257 ; 18 L. T. 521 ; 16 W. R. 932 204 Thames Haven Co. v. Hall (1843), 5 M. & G. 274; 6 Scott, N. R. 342; 3 Rly. Cas. 441 78 Thames Iron Works r. Patent Derrick Co. (1860), 1 J. & H. 93 ; 29 L. J. Ch. 714; 2 L. T. 208 ; 8 W. R. 408 168 Thayre v. L. B. & S. C. Rail. Co. (1906), 22 Times L. R. 240 179 Thomas v. Quartermaine (1887), 18 Q. B. D. 685 ; 56 L. J. Q. B. 340 ; 57 L. T. 537 ; 35 W. R. 555 279, 290, 297, 299, 300; 303, 628, 629, 637 Thomas v. Vivian (1873), 37 J. P. 228 108 Thomas r. Williams (1831), 1 A. & E. 685 ; 3 L. J. K. B. 202 209 Thomas Worthington, The (1848), 3 W. Rob. 128 124 Thompson v. Ashington Coal Co. (1901), 17 Times L. R. 345 655, 671 Thompson v. City Glass Bottle Co., (1902) 1 K. B. 233 ; 71 L. J. K. B. 145 ; 85 L. T. ' 61 633 Tliompsou V. Davenport (1829), 2 Sm. L. C. (11th ed.) 379 ; 9 B. & C. 7H..223., 224 Thompson v. Havelock (1808), 1 Camp. 527 187 Thompson v. McBain (1889), 16 R. (4th ser.) 333 112 Thompson v. N. E. Engineering Works, (1903) 1 K. B. 428 ; 72 L. J. K. B. 222 ; 88 L. T. 239 667, 687 Thompson v. Ross (1859), 5 H. & N. 16 ; 29 L. J. Ex. 1 ; 1 L. T. 43 ; 8 W. R. 44 198, 203 Thompson v. Stewart (1888), 15 R. 806 171 Thompson v. Thompson (1858), 1 S. & T. 23 ; 27 L. J. P. 65 ; 6 W. R. 867 . . 68 Thomson v. Leech (9 Will. III.), 3 Salk. 301 73 Thomson v. Thomson (1802), 7 Ves. 478 100 Thorn «;. Mayor of London (1875), L. R. 10 Ex. 123; 44 L. J. Ex. 70; 33 L. T. 308 94 Thorold v. Smith (1700), 11 Mod. 87 222 Thorpe v. Priostnall, (1897) 1 Q. B. 159 ; 66 L. J. Q. B. 248 ; 45 W. R. 223. . 311 Throgmorton v. Plymouth (1686), 3 Mod. 153 ; 1 Salk. 65 120 Thrupp V. Collett (1858), 26 Beav. 147 ; 5 Jur. (N. S.) 1 11 9 Thrussell v. Handy.side (1888), 20 Q. B. D. 359 ; 57 L. J. Q. B. 347 ; 58 L. T. 344 ; 52 J. P. 279 301 Timmius v. Leeds Forge Co. (1900), 83 L. T. 120 ; 16 T. L. R. 521 655 Tite's Case (1861), 30 L. J. M. C. 142 ; 4 L. T. 259 ; 9 W. R. 554 25 Tivoli, &c. V. CoUey (1904), 20 Times L. R. 437 104 TABLE OF CASES. Ixvu PAOE Todd V. Hawkins (1837), 2 M. & Rob. 20 ; 8 C. & P. 888 153 Todd V. Kerrich (1853), 8 Exch. 151 ; 22 L. J. Ex. I 139 Todd and N. E. Rail. Co., Re, (1903) 1 K. B. G03 ; 72 L. J. K. B. 337; 88 L. T. 366 ; 67 J. P. 105 364 Toller V. Spiers and Pond, (1904) I Ch. 302 ; 72 L. J. Ch. 191 ; 87 L. T. 578 ; 51 W. R. 330 ; 67 J. P. 234 477 Tomkinson v. "West (1875), 32 L. T. 462 66 Tomlinson v. Ashworth (1885), 50 J. P. 164 173 Tompson v. Dashwood (1883), 11 Q. B. 13. 43 , 52 L. J. Q. B. 425 ; 48 L. T. 9-13 153 Toms V Hammond (1734), Barnes, 370 139 Toog-ood r. Spyring (1831), 1 C. M. & R. 181 ; 3 L. J. Ex. 347 ; 4 Tyr. 582 . . 152, 154, 156 Toplis ('. Grano (1839), 5 Biug. N. C. 636 ; 7 Scott, 620 ; 9 L. J. C. P. 180 . . 145 TottenloU v. Fareham Brick Co. ^866), 35 L. J. C. P. 278 ; 1 C. P. 674 ; 14 W. R. 919 /. 221 Townshend v. Windham (1706), 2 Vorn. 546 8 Tozeland v. West Ham Union, (1906) 1 K. B. 538 ; 75 L. J. K. B. 353; 94 L. T. 486 ; 54 W. R. 531 ; 70 J. P. 134 280, 308 Tracer v. Pretty, (1901) 1 Q. B. 444 ; 70 L. J. Q. B. 234 : 83 L. T. 767 ; 49 W. R. 282 ; 65 J. P. 196 471 Trelawney v. Thomas (1789), 1 H. Bl. 303 132 Treswell v. Middleton (19 Jac. T.), Cro. Jac. 653 ; 2 Roll. 269 187 Triggs V. Lester (1866), L. R. 1 Q. B. 259 ; 13 L. T. 701 ; 14 W. R. 279 .... 312 TroUope v. London Bldg. Trades Fed. (1895), 72 L. T. 342 574, 599 Trotman v. Dunn (1815), 4 Camp. 211 177 Tuck V. Pricster (1887), 19 Q. B. D. 629 ; 56 L. J. Q. B. 553 ; 36 W. R. 93 ; 52 J. P. 213 176 Tugman v. Hopkins (1842), 4 M. & G. 389 225 Tunney v. Midland Rail. Co. (1866), 1 C. P. 291 ; 12 Jiir. (N. S.) 691 . .282, 283, 307 Turberville v. Stamp (1697), Comb. 459 ; 1 Salk. 13 ; Ld. Raym. 264 265 Turner v. Diaper (1841), 2 M. & G. 241 ; 2 Scott, N. R. 447 123 Turner i'. Evans (1852), 2 E. & B. 512 ; 22 L. J Q. B. 412 ; 1 W. R. 434 102 Turner v. Goldsmith, (1891) 1 Q. B. 544 ; 60 L. J. Q. B. 247 ; 64 L. T. 301 ; 39 W. R. 547 94, 96 Turner v. G. E. Rail. Co. (1875), 33 L. T. 431 288, 308 Turner v. Letts (1855), 20 Beav. 185 ; 24 L. J. Ch. 638 ; 3 W. R. 494 169 Turner v. Mason (1845), 14 M. & W. 112 : 14 L. J. Ex. 311 ; 2 D. & L. 898. . 138, 140, 170, 171, 173 Tui-ner v. Robinson (1833), 2 N. & M. 829 ; 5 B. & Aid. 789 135, 142, 175, 186 Tm-ner v. Sawdon, (1901) 2 K. B. 653 ; 70 L. J. K. B. 897 ; 85 L. T. 222 ; 49 W. R. 712 96 Two EUens, The (1872), 8 Moore, P. C. (N. S.) 398; L. R. 4 P. C. 161 ; 42 L. J. Adm. 33 ; 26 L. T. 1 ; 20 W. R. 592 169 Udell V. Athcrton (1861), 30 L. J. Ex. 337 : 7 H. & N. 172 ; 4 L. T. 797 .... 261 LTltzen V. Nicols, (1894) 1 Q. B. 92 ; 63 L. J. Q. B. 289 ; 70 L. T. 140 ; 42 W. R. 58 ; 58 J. P. 103 236 Underwood v. Barker, (1899) 1 Ch. 300 ; 68 L. J. Ch. 201 ; SO L. T. 306 ; 47 W. R. 347 102, 104 Union, The (1860), Liish. 128 ; 30 L. J. Adm. 17 ; 3 L. T. 280 169 Union Steamship Co. r. Claridge, (1894^ A. C. 185 ; 63 L. J. P. C. 56 : 70 L. T. 177; 38 J. P. 366 289, 308 e2 Ixviii TAHLE OF CASES. PAGE Vamplew v. Parkfrate Iron Co., (1903) 1 K. B. Sol ; 72 L. J. K. B. 575 ; 88 L. T. 750 ; 51 W. R. 691 249, 650 Van den Eynde r. Ulster Rail. Co. (1871), 5 Tr. C. L. 328 217, 268 Vandcrbilt r. Richmond Turnpike Co., 2 Const. 479 245 Varley v. Birley (1884), 20 Sol. Jo. 467 618 Vaughan v. Cork and Youghal Rail. Co. (1860), 12 Ir. C. L. R. 297 296 Vaughton c. Brine (1840), 1 M. & G. 359 ; 1 Scott, N. R. 258 ; 9 L. J. C. T. 326 88 Veazev v. Chattle, (1902) 1 K. B. 494 ; 71 L. J. K. B. 252 ; 85 L. T. 574 ; 50 W. R. 263; 66 J. P. 389 519 Veitch V. Russell (1842), 3 Q. B. 928 ; 12 L. J. Q. B. 13 ; Car. & M. 362 .... 57 Velasquez, The ^1867), L. R. 1 P. C. 494 ; 4 Moo. P. C. (N. S.) 426 ; 16 L. T. 777 ; 16 W. R. S9 260 Venables v. Smith (1877), 2 Q. B. D. 279 : 46 L. J. Q. B. 470 ; 36 L. T. 509 ; 25 W. R. 584 36, 238, 243, 269 Vernon v. Watson, (1891) 2 Q. B. 288 ; 60 L. J. Q. B. 472 ; 04 L. T. 728 ; 39 W. R. 520 ; 56 J. P. 85 585 VerraU v. Robinson (1835), 2 C. M. & R. 495 ; 5 Tyr. 1009 220 Viramy v. Warne (1801), 4 Esp. 47 ; 6 R. R. 839 Ill Vose v. L. & Y. Rail. Co. (1858), 2 H. & N. 728 ; 27 L. J. Ex. 249 ; 4 Jur. (N. S.) 364 30 S 635 Vrede, The (1861), 30 L. J. P. 209 ; Lush. 322 119 Wadliiig r. Oliphant (1875), 1 Q. B. D. 145; 45 L. J. Q. B. 173; 33 L. T. 837 ; 24 W. R. 246 210, 211 Wadsworth r. Gye (16 Car. II.), Sid. 210 206, 214 Wain r. Warlters (1804), 5 East, 10 93 Waite V. N. E. Rail. Co. (1858), E. B. & E. 719 ; 5 Jur. (N. S.) 936 30i Wakelin v. L. & S. W. Rail. Co. (1886), 12 A. C. 41 ; 56 L. J. Q. B. 229 ; 55 L. T. 709 ; 35 W. R. 141 305, 629 Waldie r. Roxburghe (1825), 1 W. S. 1 . . 241, 271 Waldo V. Martin (1825), 4 B. & C. 319 ; 6 D. & R. 364 ; 2 C. & P. 1 100 Waldock r. Winfield, (1901) 2 K. B. 596 ; 70 L. J. K. B. 925 ; 85 L. T. 202. . 19, 23 Wales V. Thomas (1885), 10 Q. B. D. 340 ; 55 L. J. M. C. 57 ; 55 L. T. 400 ; 50 J. P. 516 407 Walker r. British Guarantee Association (1852), 18 Q. B. 277 ; 21 L. J. Q. B. 257 ; 1 6 Jur. 885 174 Walker v. G. W. Rail. Co. (1867), L. R. 2 Ex. 22S ; 36 L. J. Ex. 123; 10 L. T. 327 ; 15 W. R. 769 221 Walker v. Hull (17 Car. II.), 1 Lev. 177 214 Walker v. Lilleshall, (1900) 1 Q. B. 488; 69 L. J. Q. B. 192; 81 L. T. 769 ; 48 W. R. 257 655 Walker v. Nicholson (41 Eliz.), Cro. Eliz. 052 02 Walker v. S. W. Rail. Co. (1870), 5 C. P. 640 ; 39 L. J. C. P. 346 ; 23 L. T. 14; 18W. R. 1032 231,246,268 Waller v. S. E. Rail. Co. (1863), 32 L. J. Ex. 205 ; 2 H. & C. 102; 8 L. T. 325; IIW. R. 731 307 WalUs V. Day (1837), 2 M. & W. 273 ; 6 L. J. Ex. 92 ; 1 Jur. 73 29 Walsby v. Anley (1861), 3 E. & E. 516; 30 L. J. M. C. 121 ; 3 L. T. 666; 9 W. R. 271 0.569, 570 Walsh V. South worth (1850), 6 Exch. 150 ; 2 L. M. & P. 91 ; 20 L. J. M. C. 105 214 Walsh V. Wallcy (1874), L. R. 9 Q. B. 307 ; 43 L. J. Q. B. 102 ; 22 W. R. 571 121, 186, 619 TABLE OF CASES. I XIX PAGE Walsh V. Whiteley (1888), 21 Q. B. D. .371 ; S? L. J. Q. B. 586 ; 36 W. R. 876 ; 53 J. P. 38 632, 633 Walter, Ex parte (1873). L. R. lo Eq. 412 ; 42 L. J. B. 49 ; 21 W. R. 523 ... 134 Walter v. Everard, (1891) 2 Q. B. 369 ; 60 L. J. Q. B. 738 ; 65 L. T. 443 ; 39 W. R. 676 31, GO, 61, 62 Walters, Ex parte (1842). 2 M. D. & D. 635 210 Walters v. Clover (1902), 18 Times L. R. 60 682 Walters v. Green, (1899) 2 Ch. 696 ; 68 L. J. Ch. 730 ; 81 L. T. 151 ; 48 W.R. 23 574 Waltham v. Mulgar (3 Jac. I.), Moore, 770 264 Walton v. Tucker (1880), 45 J. P. 23 158 WaustaU V. Pooley (1841), 6 CI. & F. 910, n. ; 49 R. R. 266 261 Warburton v. G. W. Rail. Co. (1866), L. R. 2 Ex. 30 ; 36 L. J. Ex. 9 ; 15 L. T. 361; 15 W. R. 108 287, 308 Warburton r. Heyworth (1880), 6 Q. B. D. 1 ; 50 L. J. Q. B, 137 ; 43 L. T. 461 ; 29 W. R. 91 121, 125, 138, 619 Warburton r. Taff Vale Rail Co. (1902), 18 Times L. R 420 186 Ward V. Byrne (1839), 5 M. & W. 548 ; 9 L. J. Ex. 14 ; 3 Jur. 1175 . ... 101, 102 Ward V. General Omnibus Co. (1873), 27 L. T. 761 ; 28 L. T. 850 ; 42 L. J. C. P. 265 269 Ward V. Macauley (1791), 4 T. R. 489 33 Ward, Lock & Co. v. Operative Printers, &c. (1906), 22 Times L. R. 327 .... 600 Wardleworth v. Walker (1873), 37 J. P. 52 304 Warner v. Smith, 8 Con. 14 313 Warren v. Whittingham (1902), 18 Times L. R. 508 181, 183 Warren v. Wildec (1872), W. N. 87 282 Waters v. Brugden (1827), 1 Y. i: J. 457 220 Watling V. Oastler (1871), L. R. 6 Ex. 73 ; 40 L. J. Ex. 43 ; 23 L. T. 815 ; 19 W. R. 388 310 Watson V. Christie (1800), 2 B. & P. 224 31 Watteau v. Fenwick (1892), 67 L. T. 831 ; 56 J. P. 839 215, 217, 222 Waugh V. Carver (1793), 2 H. Bl. 235 51 Waugh V. Morris (1873), L. R. 8 Q. B. 202 ; 42 L. J. Q. B. 57 ; 28 L. T. 265 ; 21 W. R. 438 98 Way V. G. E. Rail. Co. (1876), 1 Q. B. D. 692 ; 45 L. J. Q. B. 874 ; 35 L. T. 253 237 Weatherstoue v. Hawkins (1786), 1 T. R. 110 155 Weaviugs v. Kirk, (1904) 1 K. B. 213 ; 73 L. J. K. B. 77 ; 89 L. T. 577 ; 52 W. R. 209 ; 68 J. P. 91 ol8 Webb V. East (1880), 5 Ex. D. 108 ; 49 L. J. Ex. 250 ; 41 L. T. 715 ; 28 W. R. 336 153 Webb V. England (1860), 29 Beav. 44 ; 30 L. J. Ch. 222 ; 3 L. T. 574 ; 9 W. R. 183 150, 163 Webb D. Rennie (1865), 4 F. A: F. 608 295, 296, 298, 310 Webber, Ex parte (1887), 18 Q. B. D. HI ; 56 L. J. Q. B. 209; 55 L. T. 816; 35 W. R. 308 211 Weblin v. BalUird (1886), 17 Q. B. D. 122 ; 55 L. J. Q. B. 395 ; 54 L. T. 532; 34 W. R. 455 305, 628, 629, 637 Webster v. Dillon (1857), 3 Jur. (N. S.) 432 ; 5 W. R. 867 164 Webster v. Sh;u-p, (1905) A. C. 284 ; 74 L. J. K. B. 776 ; 92 L. T. 373 683 Weems v. Mathiesou (1861), 1 Pat. 1014 ; 4 Macq. 215 293, 294 Weir V. Bell (1877), 3 Ex. D. 238 ; 47 L. J. Ex. 704 ; 38 L. T. 920 ; 26 W. R. 746 233 Welch V. L. & N. W. Rail. Co. (1886), 34 W. R. 166 247, 269 Ixx TABLE OF CASES. PAGE WeUaiuI V. G. W. Rail. Co. (1900), 16 Times L. R. 297 690 Wciman V. Aduey (1802), 3 B. & P. 247 147 ■Wemihak v. Morgan (1888), 20 Q. B. D. G35 ; 57 L. J. Q. B. 241 ; 59 L. T. 28 ; 36 W. R. 697 156 Western Bank of Scotland v. Addie (1867), L. R. 1 H. L. Sc. 145 234 Westnii) V. Great yarmouth Steam Can-ying Co. (1889), 43 C. D. 241 ; 59 L. J. Ch. Ill ; 61 L. T. 714 ; 169 Westwick V. Theodor (1875), L. R. 10 Q. B. 224; 44 L. J. Q. B. 110 ; 32 L. T. 690 ; 23 W. R. 620 160, 190 AVliatman v. Pearson (1868), 3 C. P. 422 ; 37 L. J. C. P. 156 ; 18 L. T. 290 ; 16 W. R. 649 268 Wheale v. Rhymuey Co., (1902) 1 K. B. 57 ; 71 L. J. K. B. 28 ; 85 L. T. 472; 50 W. R, 115 ; 65 J. P. 804 682 Wheatloy v. Patrick (1837), 3 M. & W. 650 ; 6 L. J. Ex. 193 261 Whincup V. Hughes (1871), L. R. 6 C. P. 78 ; 40 L. J. C. P. 104 ; 24 L. T. 26 ; 19 W. R. 439 150 Whitboiirnc v. AYilliams, (1901) 2 K. B. 722 ; 70 L. J. K. B. 933 ; 85 L. T. 271 198, 203 Whitbread v. Biooksbauk (1774), Cowp. 69 224 White V. Bayley (18G1), 10 C. B. (N. S.) 227 ; 30 L. J. C. P. 253 ; 7 Jur. (N. S.) 948 49 White r. Boby (1877), 37 L. T. (N. S.) 652 ; 26 W. R. 133 163 White V. Cuyler (1795), 6 T. R. 176 ; 1 Esp. 200 ; 3 R. R. 147 67 White V. Spettigue (184-5), 13 M. & W. 603 ; 14 L. J. Ex. 99 ; 1 C. & K. 673. . 200 Whitehead /•. Holdsworth (1878), 4 Ex. 1). 13 ; 48 L. J. Ex. 254 ; 39 L. T. 638 ; 27 W. R. 24 390 Whitehead v. Reader, (1901) 2 K. B. 48 ; 70 L. J. K. B. 546 ; 84 L. T. 514 ; 49 W. R. 562 654 Whiteley, Re (1892), 66 L. T. 291 44, 52 Whiteley v. Adams (1863), 15 C. B. (N. S.) 392 ; 33 L. J. C. P. 89 ; 9 L. T. 483 ; 12 W. R. 153 152 Whiteley v. Armitage (1864), 13 W. R. 144 617 Whiteley v. Pepper (1877), 2 Q. B. D. 276 ; 46 L. J. Q. B. 436 ; 36 L. T. 588 ; 25 W. R. 607 238 Whitfield v. Le Despencer (1778), 2 Cowp. 754 225, 262 Whitfield v. S. E. Rail. Co. (1858), E. B. & E. 115 ; 27 L. J. Q. B. 229 . .234, 235 Whittle r. Frankland (1862), 2 B. & S. 55 ; 31 L. J. M. C. 81 ; 5 L. T. 639. .93, 108 Whitwood Chemical Co. v. Hardman, (1891) 2 Ch. 416 ; 60 L. J. Ch. 428 ; 64 L. T. 716 ; 39 W. R. 433 164, 172 Whymper v. Harney (186.5), 18 C. B. (N. S.) 243 ; 34 L. J. M. C. 113 ; 11 L. T. 711; 13 W. R. 440 538 Wicks, Ex parte (1881), 17 C. D. 70 ; 50 L. J. Ch. 620 ; 44 L. T. 836 ; 29 W. R. 525 130, 211 Wicks V. Dowell, (1905) 2 K. B. 225 ; 74 L. J. K. B. 572 ; 92 L. T. 677 . .654, 655 Wiggett V. Fox (1856), 11 Exch. 832 ; 25 L. J. Ex. 188 ; 2 Jur. (N. S.) 955. .284, 307 Wightwick v. Pope, (1902) 2 K. B. 99 : 71 L. J. K. B. 109 ; 86 L. T. 750 ; 50 W. R. 531 659 Wigmore v. Jay (1850), 5 Exch. 354 ; 19 L. J. Ex. 300 ; 14 Jur. 837. .280, 298, 307 Wild ('. Waygood, (1892) 1 Q. B. 783; 61 L. J. Q, B. 391 ; 6G L. T. 309; 40 W. R. 501 15, 635 Wilkin V. Reid (18-54), 15 C. B. 192 ; 23 L. J. C. P. 193 ; 2 W. R. 556 156 Wilkins, Ex parte (1895), 64 L. J. M. C. 221 ; 72 L. T. 567 , 59 J. P. 294 . , 600 Wilkins v. Wells (1825), 2 C. & P. 23 1 87 Wilkinson v. Frasier (1802), 4 Esp. 182 51 WiUfs V. Duwell, (1905) 2 K. B. 225 ; 74 L. J. K. B. 572 ; 92 L. T. 677 . .654, 656 TABLE OF CASES. Ixxi PAOE Willets V. Green (1850), 3 C. & K. 59 185 Willett V. Bootc (1860), 6 H. & N. 2G ; ;30 L. J. M. C. C ; 3 L. T. (N. S.) 276 13, G17 Willett V. Watt, (1892) 2 Q. B. 92 ; Gl L. J. Q. B. 510 ; GG L. T. 818 ; 40 W. R. 497 633 Willetts V. Buffalo Rail. Co., 14 Barb. 558 304 William v. Jones (1865), 3 H. & C. 602 ; 33 L. J. Ex. 297 ; 13 L. T. 300 ; 13 W, R. 1023 -'^^' '•^^^ Williams, Re (1887), 36 C. D. 573 ; 57 L. J. Ch. 264 ; 57 L. T. 756 ; 36 W. R. 34 1'^^ Williams v. Birmingham Battery Co.. (1899) 2 Q. B. 338 ; 68 L. J. Q. B. 918 ; 81 L.T. 62; 47 W. R. 680 295, 296, 302, 310, 626, 628 WilUams v. Bvme (1837), 7 A. & E. 177 ; 6 L. J. K. B. 239; 2 N. & P. J39 " 139, 140 Williams v. Chambers (1847), 10 Q. B. 337 ; 16 L. J. Q. B. 230 ; 74 R. R. 314.. 210 Williams v. Clough (1858), 3 H. & N. 258 ; 27 L. J. Ex. 325 295, 296, 310 Williams v. Mersey Docks, (1905) 1 K. B. 804 ; 74 L. J. K. B. 481 ; 92 L. T. 444 ; 53 W. R. 488 646 Williams y. North's Nav. Collieries, (1906) A. C. 13G ; 75 L. J. K. B. 334 ; 94 L. T. 447; 51 W. R. 485 335, 336, 340 Williams v. Ocean Coal Co., (1907) 2 K. B. 422 ; 76 L. J. K. B. 1073 ; 97 L. T. 150 ; 23 T. L. R. 584 676 Williams v. Vauxhall Colliery Co., (1907) 2 K. B. 433 ; 76 L.J. K. B. 854 ; 97 L. T. 559 ; 23 T. L. R. 591 G77, 687 Williams v. Wheeler (1860), 8 C. B. (N. S.) 316 82 WiUiamson v. Bai-tou (1862), 7 PL & N. 899 ; 31 L. J. Ex. 170 ; 5 L. T. 800 ; 10 W. R. 321 21^ Williamson v. Freer (1874), 9 C. P. 393 ; 43 L. J. C. P. 161 ; 30 L. T. 332 ; 22 W. R. 878 1^* WiUiamson v. Norris, (1899) 1 Q. B. 7 ; 6S L. J. Q. B. 31 ; 79 L. T. 415 ; 47 W. R. 94 ; 62 J. P. 790 '-^'^S' 229 Williamson v. Taylor (1843), 5 Q. B. 175 ; 13 L. J. Q. B. 81 ; 8 Jur. 79 106 Willis y. Childc (1851), 13 Bcav. 117; 20 L. J. Ch. 113 ; 15 Jur. 303 163 WilUs V. Thorp (1875), L. R. 10 Q. B. 383 ; 44 L. J. Q. B. 137 ; 33 L. T. 11 ; 23 W. R. 730 343, 619 WiUoughby, Ex parte (1881), 16 C. D. 604 ; 44 L. T. Ill ; 29 W. R. 935 .... 166 Wilmot v. Smith (1828), Mood. & Malk. 238 ; 3 C. & P. 453 ; 31 R. R. 732 . . 222 Wilmott V. Paton, (1902) 1 K. B. 237 ; 71 L. J. K. B. 1 ; 85 L. T. 569 ; 50 W. R. 148; 66 J. P. 197 '^18, 519 Wilson V. Anderton (1830), 1 B. & Ad. 450 ; 9 L. J. K. B. (O. S.) 48 226 Wilson V. Barker (1833), 4 B. & Ad. 616 ; 1 N. & M. 409 248 WHson V. Cookson (1863), 32 L. J. M. C. 177 ; 13 C. B. (N. S.) 496: 8 L. T. 53; 11 W. R. 426 337, 338 Wilson c. Glasgow Tramway Co. (1878), 5 R. 9S1 114, 613 Wilson V. Merry (1868), L. R. 1 H. L. Sc. 326 ; 19 L. T. 30. . . .261, 281, 282, 289, 291, 298, 634 Wilson V. Peto (1821), 6 Moore, C. P. 43 '•^27, 261 WUson V. Simson (1844), 6 D. 1256 ; Parsons, 2, 41 117, 313 Wilson I'. Stewart (1863), 3 B. & S. 913 ; 32 L. J. M. C. 198 ; 8 L. T. 277 ; 11 W. R. 640 "S Wilson V. Tumnion (1843), 6 Scott, N. R. 904 ; 12 L. J. C. P. 307 248 Wilson V. Zulueta (1849), 14 Q. B. 405 ; 19 L. J. Q. B. 49 ; 14 Jur. 36G 88 Ixxil TABLE OP CASES. PAGE Winder ('. Governors, &c. of Kingston -upon -Hull (lcS88K 20 Q. B. D. 412; 58 L. T. 583 ; 52 J. P. 535 579, 581 Winno v. Bampton (1747), 3 Atk. 473 74 Wiusnioro t\ Grecubank (1745), Willes, 577 194 Winstone v. Linn (1823), 1 B. «& C. 460 ; 2 D. & R. 465 ; 1 L. J. (0. S.) K. B. 12G 30, 189 Winton v. "Wilkes (4 Auue), 1 Salk. 204 62 Winyaid r. Toogood (1882), 10 Q. B. D. 218 ; 52 L. J. M. C. 25 ; 48 L. T. 229 ; 31 W. R. 271 ; 47 J. P. 325 454 Wise r. Wilson (1845), 1 C. & K. 662 178, 189 Wolfe V. Matthews (1882), 21 C. D. 194 : 51 L. J. Ch. 833 ; 47 L. T. 158 ; 30 W. R. 838 578, 581, 607 Wolfe r. Mersereau (1859), 4 Duer, 473 272 Wolton V. Gavin (1850), 16 Q. B. 48 ; 20 L. J. Q. B. 73 ; 15 Jur. 329 312 Wolverhampton & W. Rail. Co. v. L. & N. W. Rail. Co. (1873), 16 Eq. 439 ; 43 L. J. Ch. 133 162, 164 Wood V. Bowron (1866), 10 Cox, C. C. 344 ; 36 L. J. M. C. 5 ; 15 L. T. 207 ; 15 W. R. 58 570 Wood r. Don-all (1886), 2 Tunes L. R. 550 633 Wood V. Fcnwick (1842), 10 M. & W. 195 ; 11 L. J. M. C. 127 61 Wood V. Finnis (1852), 7 Exoh. 363 ; 21 L. J. Ex. 138 ; 16 Jur. 936 262 Woodhead v. Gartness Mineral Co. (1877), 4 Rettie, 469 20, 288 Woodhouse v. Shepley (1 742), 2 Atk. 534 99 Woodley r. Met. Rail. Co. (1877), 2 Ex. D. 388 ; 40 L. J. Ex. 521 170, 301 Worthington v. Sudlow (1862), 31 L. J. Q. B. 131 ; 2 B. & S. 508 ; 6 L. T. 283 ; 10 W. R. 621 108 Worthington Pumping Co. v. Moore (1902), 19 Times L. R. 84 176, 188 Wray v. West (1866), 15 L. T. 180 63 Wright r. Bagnall & Sons, (1900) 2 Q. B. 240 ; 69 L. J. Q. B. 551 ; 82 L. T. 346 ; 48 W. R. 533 ; 64 J. P. 420 063 Wright V. Glyn, (1902) 1 K. B. 745 ; 71 L. J. K. B. 497 ; 86 L. T. 373 ; 50 W. R. 402 217, 218, 222 Wright V. Lethbridge (1891), 63 L. T. (N. S.) 572 ; 7 T. L. R. 125 261 Wright V. L. G. Omnibus Co. (1877), 2 Q. B. D. 271 ; 46 L. J. Q. B. 429 ; 36 L. T. 590 ; 25 W. R. 647 627 Wright V. L. & N. W. RaU. Co. (1875), 1 Q. B. B. 252 ; 45 L. J. Q. B. 570 ; 33 L. T. 830 290, 308 Wright V. Roxburgh (1804), 2 M. 748 227 Wright V. Wilcox (1838), 19 Wend. 343 271 Wright v. Zetland (Marquis), (1908) 1 K. B. 63; 77 L. J. K. B. 152; 24 T. L. R. 48 140, 141 Wrigley v. Bagley, (1901) 1 K. B. 780 ; 70 L. J. K. B. 538 ; 84 L. T. 415 ; 49 W. R. 472; 65 J. P. 372 519 Wyllie V. Caledonian Rail. Co. (1871), 9 M. 463 290 Wynne v. Forrester (1879), 5 C. P. D. 361 ; 48 L. J. M. C. 140 ; 40 L. T. 524 ; 27 W. R. 820 416 Yarborough v. Bank of England (1812), 16 East, 6 ; 14 R. R. 272 234 Yarmouth D. France (1887), 19 Q. B. D. 647; 57 L. J. Q. B. 7; 36 W. R. 281 300, 618, 628, 629, 633 Yeatman v. Yeatman (1868), 1 P. & D. 489 ; 37 L. J. P. 37 ; 18 L. T. 415 ; 16 W. R. 734 68 TABLE OF CASES. Ixxiii PAGE Yelland's Case (1867), 4 Eq. 350 129, 169 Yelland v. Vincent (1883), 47 J. P. 230 11 Yelland v. Winter (1885), 50 J. P. 38 11 Tewens v. Noakes (1880), 6 Q. B. D. 532 ; 50 L. J. Q. B. 132 ; 44 L. T. 128 ; 28 W. R. 562 7, 10, 25 Yorkshire Miners' Federation v. Howden. Sec Howdeu v. Yorkshire Miners. Young V. Hoffman Manufacturing Co., (1907) 2 K. B. 646 ; 76 L. J. K. B. 993 ; 97 L. T. 230; 23 T. L. R. 671 284, 291, 306 Young V. Leamington Corporation (1883), 8 A. C. 517 ; 52 L. J. Q. B. 713 ; 49 L. T. 1 : 31 W. R. 925 76, 79 Zouch V. Parsons (1765), 3 Bur. 1794 60 ( Ixxv ) TAliLE OF STATUTES. {The figures in dark type denote the principal references.^ PAGE 25 Edw. III. St. 1 (Labourers) 9 St. 5 (Treason) 10 12 Rich. II. c. 2 (Sale of Public Offices) 99 4 Edw. IV. c. 1 (Truck .\ct) 3S1 21 Hen. VIII. c. 7 (Embezzlement) 54 5 & 6 Edw. VI. c. 16 (Sale of Public Offices) 99 5 Eliz. c. 4 (Apprentices), s. 5 40, 42, G3, 86, 87, 191, 192 s! 6. 191, 192 s. 7 135 S.9 191. 192 s. 10 15-^ ss. 12, 13 117 8. 25 86 c. 5 (Apprentices) 86,8/ 8 Eliz. c. 7, s. G (Truck Act) 331 13 Eliz. c. 20 (Pensions) 100 43 Eliz. c. 2 (Poor Relief Act), s. 1 50 s. 3 87 s. 5 86 21 Jac. I. c. 16 (Limitations) 1^- c. 19 (Bankrupts) 38, 56 3 Car. I. c. 2 (Sunday) 311 29 Car. II. c. 3 (Statute of Frauds), s. 4 81, 82, 84, 93 s. 17 37 c. 7 (Sunday) 117, 311, 312, 313, 563 3 Will. & M. c. 11 (Poor Law) 58 1 Anne, c. 18 (Truck Act) 331 4 & 5 Anne, c. 3 (Limitations) 132 6 Anne, c. 14 (Game) --8 8 Anne, c. 9 (Apprentices), .ss. 35, 39 199 9 Anne, c. 30 (Truck Act) 331 10 Anne, c. 16 (Truck Act) 331 1 Geo. I. c. 15 ^Truck; 331 12 Geo. I. c. 34 (Master and Servant, 331, 349 Ixxvi TABLE OF STATUTES. PAGE 2 Geo. II. c. 36 (Seamou) 80 10 Geo. II. c. 28 (Plays) 98 13 Geo. II. c. 8 (Master and Servant) 331, 349 20 Geo. II. c. 19 (Apprentices), s. I 124, 189 s. 4 03 22 Geo. II. c. 27 (Frauds hy Workmen), s. 1 314 ss. 2, 7 315, 317 s. 12 310, 349 29 Geo. II. c. 33 (Truck) 331 30 Geo. II. c. 12 (Truck) 349 14 Geo. III. c. 44 (Embezzlement) 314 17 Geo. III. c. 56 (Embezzlement), ss. 3, 5, 6 316 ss. 8, 9, 10 317 ss. 11, 15 318 ss. 16, 17 319 19 Geo. III. c. 49 (Truck) 331 28 Geo. III. c. 30 (Plays) 98 32 Geo. III. c. 56 (Servants' Characters), 8. 2 156, 328 ss. 3—7 329 ss. 8—10 330 c. 57 (Apprentices) 87, 161, 206 33 Geo. III. c. 54 (Friendly Societies) 577 36 Geo. III. c. 22 (Bread) 273 37 Geo. III. c. 98 (Bread) 273 39 Geo. III. c. 79 (Printers), s. 27 97 c. 85 (Embezzlement) 55, 248 42 Geo. III. c. 46 (Apprentices) 87 44 Geo. III. c. 54 (Volunteers) 58 49 Geo. III. c. 126 (Sale of Public Offices) 99 54 Geo. III. c. 96 (Apprentices) 40, 86 0. 159 (Harboui-s) 275 55 Geo. III. c. 184 (Stamps) 89 c. 194 (Apothecaries) 57 56 Geo. III. c. 139 (Apprentices) 87, 189 57 Geo. III. c. 115 (Truck) 331, 349 c. 122 (Truck) 331, 349 58 Geo. III. 0. 5 1 (Truck) 331 3 Geo. IV. c. 106 (Bread Act) 313 4 Geo. IV. c. 34 (Master and Servant) 5, 82 6 Geo. IV. c. 16 (Bankrupts) 38, 127, 133 c. 94 (Factors) 33 c. 125 (Pilots) 259 c. 1 29 (Combination of Workmen) 316 7 & 8 Geo. IV. c. 29 (Embezzlement) 10, 11, 14, 25 c. 30 (Injuries to ProiJerty) 228 9 Geo. IV. c. 14 (Lord Tenterden's Act) 37 c. 31 (Offences against Person) 315, 316 11 Geo. IV. ic 1 Win. IV. c. 68 (Carriers Act) 10, 236 TABLE OF STATUTES. Ixxvii PAGE 1 & 2 Will. IV. c. 22 (Hackney Can-iage) 36 c. 3G (Truck Act) :514, :ilG, 331 c. 37 (Truck Act), 8. I 334 88. 2—5 335 SB. 6-8 337 88. 9, 10 338, 349 88. 11—17 339, 349 ss. 18—23 340, 349 88. 24—27 341, 349 2 & 3 Will. IV. c. 16 (Excise) 275 c. 45 (Representation of People) 49 3 & 4 Will. IV. c. 42 (Executors) 29 c. 103 (Factory) 539 5 & 6 Will. IV. c. 69 (Guardians of Poor) 77 6 & 7 Will. IV. c. 37 (Bread Act) 117, 229, 276, 313 7 Will. IV. & 1 Vict. c. 55 (Sheriff's Officer) 229 3 & 4 Vict. c. 85 (Chimney Sweeps) 62, 354 c. 97 (Railway Servants) 229 5 & 6 Vict. c. 39 (Factors) 33 c. 55 (Railway Servants) 229 c. 57 (Poor Law) "7 c. 99 (Mhies) 276 c. 122 (Bankruptcy) 127 6 & 7 Vict. c. 40 (Embezzlement) 314 c. 86 (Hackney Carriage Act) 36 c. 96 (Libel) 274 7 & 8 Vict. c. 15 (Factory Act) 302 c. 101 (Apprentices) 62 c. 112 (Seamen) 170 8 & 9 Vict. c. 16 (Companies Clauses Act) 80 c. 128 (Truck Act) 342 9 & 10 Vict. c. 93 (Lord Campbell's Act) 644, 650, 849 11 & 12 Vict. c. 43 (Aiding and Abetting), s. 5 228 12 & 13 Vict. c. 106 (Bankruptcy), s. 168 127, 134 14 & 15 Vict. c. 11 (Apprentices) 87, 148 16 & 17 Vict. c. 128 (Smoke) 276 18 & 19 Vict. c. 120 (Met. Management), s. 149 78 c. 121 (Smoke), s. 12 276 20 & 21 Vict. c. 85 (Divorce Act, 1857) 68 21 & 22 Vict. c. 90 (Medical Act, 1858) 57 c. 108 (Divorce Act, 1858) 68 23 & 24 Vict. c. 77 (Smoke), s. 13 276 c. 151 (Mines) 414 24 Vict. c. 10 (Admiralty Court Act, 1861) 131, 132 24 & 25 Vict. c. 95 (Criminal Statutes Repeal) 148 c. 96 (Embezzlement), 8.3 34 88. 38, 39, 62 324 g. 67 55, 230, 324 8. 68 7, 10, 12, 23, 25, 32, 55, 230, 325 s. 72 55, 230 Ixxviii TABLI-: of statutes. PAGE 24 & 25 Vict. c. 97 (Embezzlement), ss. U, 15 325 c. 100 (Offences against Person), s. 26 30, 148 8. 35 229 25 & 20 Vict. 0. 89 (Companies Act, 1862) 74, 79, 84 20 & 27 Vict. c. 41 (Innkeepers) 230 c. 103 (Embezzlement) 320 27 & 28 Vict. c. 37 (Chimney Sweepers) 350 c. 95 (Fatal Accidents) 045 28 & 29 Vict. c. 80 (Partnership) 11 30 & 31 Vict. c. 102 (Representation of People), s. 3 50 c. 1 18 (Lunatic Asylums Officers), s. 141 c. 130 (Agricultural Gangs Act, 1867) 437 c. 131 (Companies Act, 1867) 80 c. 141 (Master and Servant Act, 1807) 8, 03, 00, 82 31 & 32 Vict. c. 71 (Wages of Seamen) 120, 131 c. 1 10 (Telegraph Act, 1868) 202 c. 121 (Pharmacy Act, 1868) 229 32 & 33 Vict. c. 14 (Male Servants) 11,25,41,90,91 c. 71 (Bankruptcy Act, 1809) 100, 127, 134 c. 115 (Hackney Carriage Act) 30 33 & 34 Vict. c. 30 (Wages Attachment Abolition Act) . 130 c. 35 (Apportionment Act, 1870) 133 c. 75 (Education Act, 1870) 450 c. 93 (Married Women's Property Act, 1S70) 00, 68 c. 97 (Stamp Act, 1 870) 90 34 & 35 Vict. c. 31 (Trade Union Act, 1871) • • 580 ss. 1-4 580 s. 5 581 ss. 6—8 582, 607 J.S. 9—11 583, 607, 010 s. 12 584 ss. 13, 14 585 ss. 15 — 18 586 ss. 19, 20 587 ss. 21—23 588 8. 24 589 c. 48 (Promissory Oaths Act, 1871) 99 c. 87 (Sunday) 311 c. 110 (Statute Law Revision) 316 35 & 36 Vict. c. 77 (Metalliferous Mines Regulation Act. 1872) 363 ss. 1, 2 363 88. 3-6 364 88. 7, 8 365 ss. 9—12 126, 366 I s. 13 367 ss. 14—16 368 ss. 17, 18 309 ss. 19-21 370 8. 22 372 s. 23 373 88. 24—26 376 TABLE OF STATUTES. Ixxix PACK 35 & 36 Vict. c. 77 (Metalliferous Mines Regulation Act, 1872), 88. 27, 28 377 88.29—32 378 88. 33, 34 379 88. 35-38 380 88. 39—41 381 88. 42. 43 382 c. 94 (Licensiiifr Act, 1872), „ 3 229 ,.\3.'.'.'.' '.'.'.'..'.'. ^77 88. IG, 17 275, 276 36 & 37 Vict. c. 18, s. 4 (Male Servants) 91 c. 86 (Education Act, 1873) 452 37 & 38 Vict. c. 48 (Hosiery Wages Act, 1874) 125, 126, 343 c. 62 (Infant Relief Act, 1874) o9 c. 67 (Slaughter Houses Ait, 1874) 276 c. 96 (Statute Law Revision Act, 1874) 354 38 Vict. c. 17 (Explosives Act, 1875) 433 38 & 39 Vict. c. 24 (Falsification of Accounts) 230 c. 39 (Metalliferous Mines Act, 1875) 383 c. 55 (Public Health Act, 1 875), jj gj 368, 382 s'l74"'.'.'.'.'.'.'.'^.'.'.''.'...^^ 78,79 8. 209 563 S.313 368,382 c. 63 (Sale of Food and Drugs Act) 228, 276 c. 69 (Militia Act, 1875) 209 c. 70 (Chimney Sweepers Act, 1875), ss. 1— 9 357 ss. 10—16 358 ss. 17-20 359 88. 21—25 360 c. 77 (Judicature Act, 1875) 127 c. 86 (Conspiracy and Protection of Property Act, 1875) ^96, 607 gg 1_3 596, 608, 610 ss' 4, 5.. !""."■'" 161,597 ^ Q 30, 148, 598 g' 7 598, 609, 610 S8. 8-13^;;';^.!! 315,317,601 88. 14, 15 602 IQ ..87, 603 8. 17 . ,..'.*.... 1'''2, 316, 603 ss. 18-20 605 8.21 ■; 606 90 (Employers and Workmen Act, 1875) 611 ss.i:2 612 g ;j 125, 131, 161, 612 s\i[[],,,,. 126, 131, 161, 613 s. o.. ...... 64, 131, 614 ^ Q ....... 64, 165, 614 1' 7 64. 6U IXXX TABLE OF STATUTES. PAGK 38 & 39 Vict. c. 90 (Employers and Workmen Act, 1875), 8. 8 64, 615 s. 9 G4, 616 8. 10 5, 6, 64, 616 s. II 125, 133, 619 s. 12 63, 64, 619 8. 13 87, 620 s. 14 620 8. 15 620 39 & 40 Vict. c. 16 (Male Servants), s. 5 11,91 c. 22 (Trade Union Act, 1876) 590—594 c. 61 (Poor Law) 87 c. 79 (Elementary Education) 450, 452 c. SO (Merchant Shipping) 276 40 c«>: 41 Viet. c. 60 (Canal Boats Act, 1877) 450 41 Vict. c. 15 (Inland Revenue), s. 13 25, 26 41 & 42 Vict. c. 1 6 (Factory and Workshops) 539 42 & 43 Vict. c. 34 (Children's Dangerous Performances Act, 1879). . 441 c. 49 (Summary Jurisdiction) 317, 326, 330 43 & 44 Vict. c. 16 (Merchant Shipping), s. 11 87, 126 c. 23 (Elemeutaiy Education) 455 c. 42 (Employers' Liability Act, 1880) 305, 625, 632 s. 1 632 8. 2 637 8. 3 637 s. 4 638 8. 5 638 8. 6 C38, 678 8. 7 640 s. 8 641 8. 9 641 8. 10 641 44 & 45 Vict. c. 58 (Army Act, 1881), s. 96 58 45 & 46 Vict. c. 49 (Militia Act, 1882), s. 9 58 c. 75 (Man-ied Women's Property Act, 1882) ..66, 68, 72 s. 1 68 88. 2, 5, 12, 13 69 88.14-16 70 88. 19, 21, 22—24 71 46 & 47 Vict. c. 28 (Companies Act, 1883) 128 0. 31 (Payment of Wages in Public Houses) 126 0. 47 (Provident Nominations Act, 1883) 592 c. 52 (Bankruptcy Act, 1883) 128, 129 8. 27 ^^ 8. 40 128 8.41 209 8. 53 129, 211 8.83 129 47 «& 48 Vict. c. 43 (Summary Jurisdiction), 8. 4 315, 320 8.6 327 48 & 49 Vict. c. 3 (Representation of I'eople) 42 TABLE OF STA'I'UTKS. Ixxxi PAGE 49 & 50 Vict. c. 28 (Bankruptcy (Agricultural Labourers' Wages') Act, 1886) 128 oO & 51 Vict. c. 28 (Merchandise Marks Act, 1887) 276 c. 43 (Stannaries Act, 18S7) 126 c. 4C (Truck Act, 1887) 126, 344 88. 1, 2 '^*i 88. 3—8 ■^^■> 88. 9-12 =^-16 8.13 :547 88. 14—18 ;^48 Schedule =^49 c. 55 (Sheriffs Act, 1887) 229 c. 58 (Coal Mines Regulation Act, 1887) 384 88. 1-6 384 88. 7. 8 385 88. 9— 11 386 s. 12 387 8.13 388 88 14,15 390 8.16 391 88. 17, 18 392 88. 19, 20 393 S8. 21—23 394 88. 24—27 ■^'^■~> 88. 28, 29 396 88. 30-33 397 8.34 398 ss. 35,36 399 88. 37, 38 400 88. 39—41 401 s. 42 402 ss. 43, 45 403 88.46,47 404 S.48 406 S.49 277.407 8. 50 277. 415 88. 51, 52 416 88. 53—55 417 as. 56—58 85, 418 88.59-62 229,419 88. 63—67 420 88. 68-70 421 88. 71 — 75 88. 76, 77 . . 422 423 88. 78—80 424 88. 83, 84 425 Schedules 425 c. 67 (Superannuation Act, 1887) 673, 849 51 & 52 Vict. c. 41 (Local Government Act, 1888), ss. 40, 79 78 c. 43 (County Courts Act, 1888) 126, 131 c 62 (Preferential Payments) 127, 130, 648 M. ' Ixxxii TABLE OF STATUTES. PAGE 52 & 53 Vict. c. 49 (Arbitration Act, 1889) 406, 853 c. 63 (Interpretation Act, 1889) 3S2, 425 c. 72 (Infectious Disease Notification Act, 1889) 521 53 & 54 Vict. c. 39 (Partnership Act, 1890) 44 8. 1 ^4 s. 2 45 Rs. 5, 8, 9 "3 ss. 10, 12 74 s. 14 45 s. 33 206 c. 45 (Police Act, 1890) 677 c. 59 (Public Health Act, 1890) 471 c. 67 (Police (Scotland) Act, 1890) 677 c. 71 (Bankruptcy Act, 1890) 127 54 & 55 Vict. c. 39 (Stamp Act, 1891) 86, 88, 90, 91 c. 47 (Metalliferous Mines) 379, 382 c. 75 (Factory and Workshop Act, 1891) 556 55 & 56 Vict. c. 19 (Statute Law Revision Act, 1892) 355 c. 62 (Shop Hours Act, 1892) 557 56 & 57 Vict. c. 2 (Trade Union Act, 1893) 594 c. 29 (Railway Regulation Act, 1893) 11" c. ?1 (Elementary Education Act, 1893) 456 c. 54 (Statute Law Revision Act, 1893) 360 c. 61 (Public Authorities Protection Act, 1893) 646 c. 63 (Married Women's Property Act, 1S93) 71, 72 c. 67 (Shop Hours Act, 1893) 559 c. 71 (Sale of Goods Act, 1893) «7 57 & 58 Vict. c. 28 (Notice of Accidents Act, 1894) 366, 399, 433 c. 42 (Quarries Act, 1 894) 432 c. 51 (Chimney Sweepers Act, 1894) 362 c. 52 (Coal Miues (Check Weighers) Act, 1894) 428 c. 60 (Merchant Shipping Act, 1894), ss. 105—109 87, 89 .ss. 113-125 31, 86, 132 88. 132, 133 133 8. 134 121, 126 8. 135 126 8. 140 133 8. 156 119, 169 8. 157 122 .S8. 158—161 123, 133 s. 163 130 s. 164 131 8. 165 126 8. 167 166 8. 174 132 88. 182, 183 133 88. 195—197 58 88.198—210 148 8. 212 119 8. 221 186 ss. 222— 224 165 TABLE OF STATUTES. Ixxxiii PAGE 57 & 58 Vict. c. 60 (Merchant Shipping Act, 1894), 8. 225 31, 121, 124, 186 8. 228 31 8s. 376—384 31, 132 8S. 393—398 ; 87 8. 458 -280 8, 633 260 8. 692 674 8. 721 86, 88 8. 742 603, 677 c. 73 (Local Government Act, 1804) 438 58 Vict. c. 5 (Shop Hours Act, 1895) 559 58 & o9 Vict. c. 37 (Factory and Workshop Act, 1895) 556 59 & 60 Vict. c. 25 (Friendly Societies Act, 1896) 128, 581, 593 c. 30 (Conciliation Act, 1896) 459 c. 43 (Coal Mines Regulation Act, 1896) 4 16, 428 c. 44 (Truck Act, 189G), 88. 1, 2 86, 350 88. 3, 4 3ol 88. 5—9 352 88. 10—12 353, 518 60 & 61 Vict. c. 19 (Preferential Payments in Bankruptcy) 128 c. 37 (Workmen's Compensation Act, 1897) 6, 646, 647, 678, 679 8. 1 305 8. 7 41 Schedule 109 c. 58 (Cotton Cloth Factories Act, 1897) 556 62 & 63 Vict. c. 13 (Elementary Education Act, 1899) 451 , 457 c. 21 (Shop Assistants Act, 1899) 560 63 & 64 Vict. c. 21 (Child Labour in Mines) 384, 431 c. 22 (Workmen's Compensation Act, 1900) 679 0. 27 (Railway Employment Act, 1900) 433, 556, 566 c. 53 (Elementary Education Act, 1900) 451, 458 1 Edw. VII. c. 22 (Factory and Workshop Act, 1901) 461 8. 1 468 88. 2, 3 469 ss. 4, 5 470 88. 6, 7 471 ss. 8, 9 472 88.10,11 473 8. 12 474 ss. 13, 14 475 8S. 15— 17 477 8. 18 478 8. 19 478, 567 SS. 20—22 479 ss. 23, 24 481 8. 25 482 88. 26, 27 483 88. 28, 29 484 IXXXIV . TAIiLE OF .STATUTES. PAGE 1 EdAv. VII. c. 22 (Factory and Worksho)) Act, 1901), 88. 30, 31 485 ss. 32, 33 486 s. 34 313,486 8. 35 86, 486 8s. 36—38 488 8. 39 489 s. 40 490 S8. 41— 43 491 88. 44—48 313, 492 8.49 493 88. 50, 51 494 88. 52—54 495 H. ,55 496 88. 56—58 497 88. 59, 60 498 88.61 — 64 499 8. G5 fiOO 88. 66, 68 501 8. 69 502 88. 70-72 503 88. 73, 74 504 88.75-77 86, 505 88. 78, 79 86, 506 88.80,81 507 88. 82—85 508 8.86 509 8. 87 510 88. 88—1)1 511 88. 92, 93 512 88.94,95 513 88. 96—98 514 88. 99 — 101 515 8. 102 516 8. 103 517 8. 104 518 ss. 105, 106 519, 567 8. 107 520, 678 88.108—110 521 8. Ill 522 88.112—114 523 S8. 115, 116 125, 524 ss. 117, 118 526 8.119 527 88.120-123 528 88. 124—126 529 88. 127 — 129 530 88.130—132 531 88. 133—136 532 88. 137—139 533 88. 140—142 534 ss. 143—146 535 TABLK OF STATUTES. IxXXV I'AOK. 1 Edw. VII. c. 22 (Factory and Worksluip Act, 1901), ss. H7, 148 -^'^6 s. 149 '^37 3. 150 •''39 sa. 151 — 153 •'''to ss. 154—156 •''11 88. 157-159 •'"'42 8. 160 •■'14 H. 161 '^IS. 567 ss. 162, 163 546 Schedules •^IG 0. 27 (Intoxicating Liquors (Sale to Children) Act, 1901) 277 2 Edw. VII. c. 21 (Shop Clubs Act, 1902) •5fi-3 3 Edw. VII. c. 7 (Coal Mines Regulation Act, 1903) 431 c. 42 (County Courts Act, 1903), s. 3 126 c. 45 (Employment of Children Act, 1903) 444 ss. 1, 2 Ill ss. 3,4 14-5 ss. 5, 6 lis ss. 7-12 ll'' ss. 13—14 448 ss. 15—18 449 4 Edw VII. c. 15 (Prevention of Cruelty to Children Act, 1904) 65, 442 8.3 447,453 s. 7 . s. 8 . 8. 22. 446 446 445 c. 31 (Shop Hours Act, 1904) 560 6 Edw. VII. c. 9 (Coal Mines (Weighing of Minerals) Act, 1905) . . 390 c. 10 (Shipowners' Negligence (Remedies) Act, 1905).. 674, 711, 713 6 Edw VII. c. 47 (Trade Dispiites Act, 1906) 197, 606, 610 g_ 1 608, 609, 610 g' 2 "..!!." .' 572, 608, 609, 610 g 3 " " 609, 610 s" 4.'.".'.'.. ..".'.'.'.' ''O^, 608, 610 3^ 5.... .... 594, 607, 610 c 53 (Notice of Accidents Act, 1906) . . . .366, 398, 433. 434 g. 2 399 g' 3 399, 567 g" 4 478, 479, 519, 520 8^5 '.'.'.'.'.'.'.'. 519-^20 „ « 433 S.7 '^67 c 58 (Workmen's Compensation Act, 1906) 646, 660 s.l 660 662 3 663 4 664 5 \\^^\Z\''.'.'.'.'.''..... 665 M. ss. 6, 7 667 IxXXvi TA15LE OF STATUTES. PAGK 6E(iw. "VII. c. 58 (Workmen's Compensation Act, 1906), s. 8 669 s. 9 672 as. 10, 11 073 ss. 12, 13 675 ss. 14, 15 678 ss. 16, 17 079 Schedule 1 679 Schedule 2 689 Schedule 3 095 7 Edw. VII. c. 10 (Employment of Women Act, 1907) 385, 497 c. 39 (Factory and Workshop Act, 1907), 8. 1 517, 555 8. 2 483, 499 s. 3 517, 518 8. 4 519, 520, 524 a. 5 481, 519, 520, 527, 528, 530, 531 a. 6 528 ADDENDA. Pao-e 90 n. {g). ^c?n law they were not very distinctly separated ; the phrase principal and agent is of compara- tively modern use. But it has been found expedient to separate work and labour from agency. (3) There has been an extension of the idea of master and servant to many relations really different from that of master and servant. It has become necessary to consider the obligations of employers to persons who are not, in a strict sense, servants ; by a sort of fiction these relations have been treated as examples of master and servant. The following are the chief classes of contracts dealt with in this volume : — (I.) Contracts of master and servant strictly so called ; A. being paid by B., and bound to obey liis orders as to the manner of doing work. (See p. 7.) (II.) Contracts for exclusive personal service, but without control. A. contracts to do work for B. and for no other person, but is free to do the work in the manner he pleases (^^). This second class of contracts is described in certain Acts of Parliament as "contracts of service or contracts personally to execute any work " (./'). Probably in this category should be placed contracts such as that which came before the Court in StiKirt v. Eram^ {g). A., a slater, employed by B., the defendant, to slate houses for him ; A., who provided his own tools, was paid by the piece ; B. provided slates, poles and scaffolding. The Court held that A. was a "workman" within the meaning of sect. 8 of the Employers' Liability Act, 1880. (III.) Contracts with a particular workman for himself and on behalf of others. Such contracts are conmion in many industries, e.g., employers let outlying parts of mines to " butty-masters " or " working- contractors," to pay the hewers by the hour and the piece; or (e) See contract in Boiven v. Hall [f) Employers and Workmen Act, (1881), 6 Q. B. D. 333. 1875, h. 10 ; see 4 Geo. IV. c. 34, s. 3. ^ (g) (1883 , 49 L. T. 138. VARIETIES OF LABOUR AND CONTRACTS RELATING THERETO. 5 a gang- of plate-layers or rivetters is engaged through their "first-hand" to complete a job in building an iron vessel (A). The distinction between such cases as Bnncn v. Butterley Coal Co. (i) and Ruth v. Surrey Commercial Dock Co. {J) on the one hand, and Marrow v. Fliml»j (/.) on the other, is sometimes very fine. In Brown v. Butterley Coal Co. (i), the plaintiff, a miner, was held to be a servant of the defendants, though he had been employed by one of the " butty-men." The chief evidence of the contract of service with the company was the fact that the defendants had drawn up certain rules, which all persons at work in the mines were bound to obey. In Marrow v. Flimby [1) a man who had entered into a contract to sink a shaft in a coal- mine was held not to be a " workman " who had '' entered into or worked under " a contract with the defendant company ; and it was also held that the control given by the Coal Mines Regula- tion Act, 1887, and by the special rules of the mine, to the manager over all persons in the mine did not make the sinker and his men " workmen " of the defendant company within sect. 10 of the Employers and Workmen Act, 1875. In the notes to that statute {m) are collected the chief eases in which the Courts have had to consider the distinction between a sub-contractor and a workman, which may be very faint, especially if the latter is paid by the piece or employs others under him to assist him. In some employments tlie line of distinction is almost invisible. To constitute a " workman," there must be some control over the mode of doing the work, and not merely a contract for the result. (IV.) Contracts to perform a certain work ; no control being exercised by the employer. This is the locatio-conductio opcris faciendi of Roman law, and the werlarrtrag of the Grerman Code. (Articles 631 — 651.) Of this contract many examples are men- tioned in this book. (V) A further division may be noted — that of "undertaker" [entrepreneur, imternehmer), and employer or master. This term has of late come into general use in political economy, Ih) In Nordhoff's " Modern Call- (0 (1885), 53 L. T. 964 foruia" (p. 143), is an example of this (./) (1891), 8 Times L. R. 116. form of contract. The employer deals (/■) [1898] 2 Q B 5,S8 See F.7.- directlv only with the foreman : " I tell patrirk v. F.vavs, [1902] 1 K. B. ftOo. him only what I want done, and settle {/) [1898] 2 Q. B. 588. See Fitzpatnck with him alone. I complain to him and v. Frciiis. [1902] 1 K. B. 505. hold him alone accountable." ('«) Pt. li. p. 618, infru. 6 VARIETIES OF LA130UK AND CONTRACTS RELATING THERETO. and is to some extent used in law, to describe capitalists who receive remuneration for their personal services {n). (VI.) Contracts of apprenticeship (o). (VII.) Collective contracts; a phrase recently introduced to designate contracts which are now very common in many trades, and in which the terms as to wages and employment generally are the same for a number of persons {p). («) See Workmen's Compensation Act, used in sect. 4, sub-sect. (1). 1897, s. 7 (2). The term " undertaker" (o) See p. 40, intra. doesnotaijpear in the Workmen's Com- (;;) Lotmar, I)er Arbeitsvcrtra;/, I., pensation Act, 1906 ; though " work p. 756 ; Industrial iJemocmcy, by Sidney undertaken by the principal" is a phrase and Beatrice Webb, I., p. 173. CHAPTER II. DEFINITION OF MASTER AND SERVANT. A SERVANT is one who for consideration agrees to work subject to the orders of another ((2). Few judicial definitions of a servant are to be found in the reports. Judges have generally acted in regard to this matter on (ff) The difficulty of definiufj the re- lation of master aud servant will be best appreciated by considering some of the attempts to do so. " A person who contracts with another to do certain work for him is the servant of that other until the work is finished, and no other person can employ such servant to the prejudice of the first master : " Blake v. LnnijoH (1795), 6 T. R. 2'_>'2 ; cited with capprobatioD by Crompton, J., in Lumley V. Gye, 2 E. & B. at p. 226. Perhaps these words, which would include con- tractors, were not intended as a com- plete definition. " The test is very much this, viz., whether the person charg'ed is under the control, and bound to obey the orders of his master:" Blackburn, J., in Qti*e)> v. Negus (1873), 2 C. C. R. 37, with reference to " clerk or servant " in 2+ & 25 Vict. c. 96, s. 68. " A servant is a person subject to the command of his master as to the manner in which he shall do his work : " Bram- well, L. J., in Yeirens v. Noahs (1880), 6 Q. B. D. 532. "A clerk or ser- vant is a person bound either by an express contract of service or by conduct implying such a contract to obey the orders and submit to the control of his master in the transaction of the business which it is his duty as such clerk or servant to transact:" Stephen's i)!(7«6-< ot Criminal Law, 220. In a work on the Law of Master and Strraut, pub- lished in 1767, I find the following definition : "A servant seems to be such an one as, by agreement and retainer, oweth duty and service to another, who, therefore, is called his master. " "A servant is one who is employed to render personal service to his employer, other- wise than in the pursuit of an inde- pendent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master:" New York Code, s. 1034. ' ' In strictness a servant is one who, for a valuable consideration, engages in the service of another, and undertakes to observe his directions in some lawful business:" Cooley on Torts, b'&\. "_ A person who ultroneously agrees to give his services to another for a determinate time, and an ascertained hire, and who may get rid of the contract by paying Hnmagres : " Fraser on the Laic of blaster and Serrant. " A person who hires his services ultroneously to another, for a certain price in money, and who may get rid of the contract by paying dama- ges:" Fraser, Personal and Domestic Relations (ed. 1846), ii. 367. "Volun- tary (as opposed to 'necessary') servants are those who enter into service without compulsion, by an agreement or con- tract, for a determinate time: " Erskine, 1, title 7, 62. "A master is one who has legal authority over another ; and the person over whom such authority may be rightfully exercised is his ser- vant" (Schouler on Domestic Relations, 699), which would equally apply to the relations of master and servant and master aud slave. " A master is one who, by law, has a right to personal 8 DEFINITION OF MASTKR AND SERVANT. the princii)le vumi^^ dctUiifio iti leyc })crici(losa cat. Though important consequences, oi\il and criminal, hang upon the distinction between authority over Jinotlior ; and such per- son, over whom sucli authority may be rightly exercised, is servant : " Reeve's Dumextic lie/uiions, ;)99. This is open to the same objection as the last. " Shortly," says Lord Justice Bramwell, "the relation of master and servant exists where the master can not only order the work, but how it shall be done. When the person to do the wurk may do it as he pleases, then such per- son is not a servant:" Letter to Sir Henry Jackson. "A servant is one who voluntarily agrees, whether for wages or not, to subject himself at all times during the period of service to the lawful orders and directions of another in respect of work to be done : " Eversley on BomcUic Jielationti, 907. " The relation of master and servant exists only between persons of whom one has the order and control of the work done by the other:" Pollock on Torts (6th ed.), 78. Dr. Johnson's definition is " one that attends another, and acts at his command " — a definition of meuial servants. Austin makes the relation turn on the fact that either of the parties to the relation "incurs obligations and acquires rights of which the objects are not determinable indi- vidually, though their kinds may be fixed:" Jurispntdence ii. 97''. In other words, the relation of master and servant is a certain status, a view which, though true of domestic ser- vants, &c., does not hold good of one employed to do one act, or a similar set of acts repeatedly. See, too, R. v. Spencer {\^lb), R. & R. 291). "He is to be deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents, not merely in the ultimate result of his work, but in all its details: " Shearman & Redfield on J^cyligmce, 8. 73. "In its legal acceptation it (servant) includes any one who is bound to perform services, on the authority and for the benefit of another, his master, whether these .services are rendered gratuitously or for a stipu- lated consideration : ' ' Sconce's Law of Master and Servant, quoted in Ciirrie's Ltidian Criminal Code, 354. See Hobbes's definition, Lnglish Works, ii. 109. As to the meaning of " servant " in Wills, see Jones v. Jlenlei/ (16.S5), 2 Rep. Ch. 16J (legacy "to all my servants." Only those entitled who, being menial servants, were in testator's service be- fore the making of the will and remained in his service till his death). Tutrns- hcnd V. Windhnni (1706), 2 Vem. 546. "Stewards of Courts, and such who are not obliged to spend their whi)le time with their master, but may also serve any other master " not within bequest to ' ' such of my servants as shall be living with me at the time of my death ; " cf. Armstrong v. Clavering, infra, in this note. Sleech v. Thorington (l'7.')4), 2 Ves. Sen. o60 (bequest to "the three servants that shall live with me at the time of my death; " testatrix had three at time of death ; all included). Chih-ot V. Bromley (ISOG), 12 Ves. 114 (becpiest to " all my other servants who shall be living witli me at the time of my decease" did not include a coachman provided with carriage and horses by a job-master, thovigh returned by testator as his coachman under Acts imposing duty on male servants). JJerbert v. Reid (1810), 16 Ve.s. 481 (legacy to plaintiff "if in his service" at time of testator's death ; parol evidence to show that plaintiff, though sent from the testator's house before his death, was considered by him to be in his service ; held entitled). Houardv. IFilsonil'^'i'l), 4 Hagg. Ecc. 107 (a coachman, wlio was originally hired by, and had lived for five years with, the testatrix, and who remained with her, though she changed her job-men, entitled, under "each of my servants living with me at the time of my death"; the job-masters paid him wages, and found him in livery). Booth V. Lhan (1833), 1 My. & K. ftGO (under bequest to " each of my servants one v^'ir''^ wages over and above what may be due to them at time of my decease," only "family servants, usually hired by the year," and not a gardener or ( o w-boy at weekly wages) . See Breslin v. Waldron (1855), 4 Ir. Ch. 333. J'arkcr V. Marchant (1842), 1 Y. & C. 290 (a person in the testator's service at time of date of codicil, but who quitted it before his decease, entitled, under be- quest "to the other servants"). Bul- ling V. Ellice (1845), 9 Jur. 936 (a farm bailiff' who had lived with testator twenty-eight years, who had 350/. a year, and who was entitled to take pupils in agriculture, entitled under "one year's wages to each of my ser- vants in my service at my death who shall have lived with me five years or upwards"). Ogle v. Morgan (1852), 1 J). M. & G. 359 (head gardener, living in one of testator's cottages, and not DEFINITION OF MASTER AND SKKVANT. 9 servant and contractor, servant and bailee, servant and agent, servant and partner, Courts have, as a rule, abstained from defin- ing the relation of master and servant. They have been content to deal with each case as it arose. For hundreds of years the word or similar terms have been used in statutes. Difficulties arose as to its meaning in one of the first Acts in which it appears, the 25 Edw. III. st. 2, s. 1 (/>). Similar difficidties still frequently arise as to who is a servant within the moaning of tlie many Acts in wliich the word occm's. In consequence, no doubt, of this ambiguity, some modern statutes {c) use and define such terms as " employer " and " workman." The above definition is not offered as perfect. The term is, in fact, used loosely and in different senses. No definition fed by him, not "a servant in ray domestic establishment "). Blackicell v. Pennant (1852), 9 Hare, 551 (bequest of a year's wages to " servants living with me at the time of my decease, and who shall then have lived in my service for three years," included servants living in a different house from that in which testator lived ; excluded servants not hired by the year). Thrupp v. Collett (1858), 26 Beav. 147 (under bequest to "servants in his (testator's) ser- vice at the time of his decease," two outdoor servants continuously employed at weekly wages, en- titled ; not so a boy employed at weekly wages in carrying letters a few months in the year, whilst the testator was at his country residence, though the boy was so employed at testator's death) . Armstronq v. Clartring (1859), 27 Beav. 226 (a land agent and house steward, residing out of the house, entitled under a bequest to ' ' all my servants and day labourers who shall be in my service at the time of my death"). Re Serves' i^ Estate, J'ei/es v. JIfarriott (1862), 31 L. J. Ch. 519 (legacy to claimaut " in case she shall be in my service at my decease ' ' ; testator removed to lunatic asylum ; claimant voluntarily quitted the house receiving wages for one year ; testator died within that year ; claimant not entitled to legacy). iJarlow v. Edwards (1862), 1 H. «& C. 547 (a servant who had been -wTongfully dismissed two days before the testator's death, not entitled under bequest of an annuity, ' ' provided she shall be in my service at the time of my decease"). Re Hnrtleifs Trust, (1878) W. N. 104 (legacy to M. B., pro- vided she remained ia testatrix's service till her death : testatrix removed to lunatic asylum; M. B dismissed with wages in lieu of notice ; order in lunacy directing sale of property of testatrix ; M. B. not entitled to legacy). In re BenyoH, Benyon v. Grieve (1884), 32 W. R. 871 ("to each of my servants who shall at my death have been in my ser- vice twelve calendar months or longer, one year's wages, . . . and to my gar- dener, P. G., 300/. in addition." P. G. left service three years before testator's death ; not entitled to (one year's wages or) 300/.). lure Mar eus, Marcus V. Mar- cus (1887), 56 L. J. Ch. 8:i0 (" my office and warehouse employes such as clerks and w orkmen, shall have to receive six months' full salary." This means em- ployes in testator's service at the time • of his death). Re Drax, Saiile v. Yeat- niaii (1887), 57 L. T. 475 (legacies to each of my "household servants": held, a coachman living in a cottage adjoining the pleasure grounds and two grooms occupying rooms over the stables close to the house not included). In re Shar- land, Kewp v. Rozey, [1896] I Ch. 517 (bequest "to each man who shall have been in my employ over ten years." D., who had been in testator's service fifteen years, but was not in it at the date of the will, or at the time of the death, held entitled). See Jarman on Wills (5th ed.), vol. i. p. 305 ; Williams on Executors (9th ed.), vol. ii. p. 1007 ; Redfield on Wills, vol. i. sec. 53. {b) An embroiderer * a .'•ervant or laV)ourer within the statute, 47 Edw. III. f . 22 ; a collector of rents not within it, 19 Hen. VI. f. 53. See as to the diffi- culties which arose as to what servants could be punished for petty treason, 1 Hale P. of C 380. Ic) See Employers and Workmen Act, 1875, s. 10 ; Employers' Liability Act, 1880 ; Truck Act, 1887 ; Workmen's Compensation Act, 1906 ; Trade Dis- putes Act, 1906. DEFINITION OF iMASTEK AND SERVANT. /hich would include all its significations in statutes, in questions as to common employment, in settlement cases, in actions for seduction or for enticing away, and in wills, is possible. The word has not been employed in the same sense at different periods of history. It has been extended to relations to which it was not once applicable. Originally the term indicated a sort of status. A servant was generally a member of liis master's household. Pie was in a sense under his master's poto^fan. He is mentioned in the same context as the wite or son or daughter of the house. The relation is often described as one of allegiance {d). The statute of treason, 25 Edw. III. s. 5, which enumerates various forms of treason, and which adds " there is another manner of treason (petit treason), that is to say, when a servant slayeth his master, or a wife her husband, or when a man, secular or religious, slayeth his prelate, to whom he owetli faith and obedience," presupposed that master and servant stood to each other in a degree of intimacy which is not now implied. Even at the same date the use of the term has varied according to the subject-matter. In actions for seduction, a person who does any trifling act of service is regarded as a servant [e). Mere casual temporary employment for a particular purpose will not suffice to make a persofi a servant witldn the meaning of some statutes (,/'). In the case of others this is enough (/y). Servant is used, for example, in one sense in the Carriers Act (U Geo. IV. & 1 Will. IV. c. 68, s. 8) (/O, and in another in the Larceny Act (24 & 25 Vict. c. 96, s. 68) (/). [d] Bacon's Abridg. V. 333; "ser- [y) Rex v. Spencer (1815), R. & R. vant." It was uot maintenance for a C. C. 299. "Servant" is often used as ens master to help a servant with "cost- a synonym for domestic servant, Ycu age," 3 Hen. VI. 53. The servant was v. Noakes (1880), L. R. 6 Q. B. 538. In entitled to use force in defence of his Salmons on ' ' Jiomestic Service in United master '21 Hen. VII. 39. Stales''^ (p. 207), the author recommends (e) See Chapter XIX. that " servant" be dropped as an offen- (/) Roscoe, Crinanal Evidence. 13th sive term conveying associations with ed. 378 : see, however, R. v. Unghes slavery. (1832), 1 Mood. C. C. 370. (A) See p. 236. (i) The following are some of the chief decisions under Statutes with respect to "servant" and "clerk." Servant— Not Servant— Rex v. Squire (1818), R. k R. C. C. Rex v. Ihn-ton (1829), 1 M. C. C. 237 349 (overseers of a township employed (prisoner a clerk of chaplain who col- prisoner as their accountant and trea- lected the sacrament n.oney from the surer ■ received and j)aid all money communicants, not the servant of the receivable or payable on their account ; incumbent, churchwardens, or poor of servant or clerk within 39 Geo. III. township within 7 & 8 Geo. IV. c. 29, c. 8.5). «• 47). Rex v. Evyhe.H (1832), 1 M. C. C. 370 Reg. v. Walhr (1858), 27 L. J. M. C. DEFINITION OF MASTER AND SERVANT. 11 The term " male servant " is for the purposes of the luland Revenue Act (32 & 33 Vict. c. 14, s. 19) specially defined by the 39 Vict. c. K:), s. 5 (k). Servant — (prisoner employed as driver to drive a cow and calf and to bring back the price. He was employed to receive in one instance only ; within 7 & 8 Geo. IV. c. 29, s. 47). Heff. v. Tuiiffue (1860), 30 L. J. M. C. 49 (prisoner secretary to a money club ; his duty to summon meeting-s and to make out the promissory notes on demand and to countersign all cheques upon the treasui-er ; he received a salary). Beg. V. Macdonald (1861), 31 L. J. M. C. 67 (prisoner a cashier and collector of a firm ; he received in lieu of increase of salary percentage of profits ; no con- trol over business). Reg. v. Proud (1861), 31 L. J. M. C. 71 (paid secretary of a friendly society, whose duties were to attend meetings of lodge, write minutes of proceedings, keep coi-rect accounts of receipts and expenditures, &c. He was a member of the society). Reg. V. Titc (1861), 30 L. J. M. C. 142 (prisoner a commercial traveller employed by prosecutors ; paid by com- mission ; at liberty to receive orders from others). Reg. V. Bastie (1863), 32 L. J. M. C. 63 (secretary of a benefit i-ociety, who had, according to the rules, nothing to do with the receipt of money paid ott' by trustees, but who was in the habit of receiving such money ; held that he might be convicted of embezzlement under 7 & 8 Geo. IV. c. 29, s. 47) Reg. V. Dixon (1868), 11 Cox, C. C. 178 (prisoner engaged by U. at weekly wages to manage a shop. U. having assigned all his estate and effects to R., a notice was served on prisoner to act as agent of R. in the management of the shop. For fourteen days R. received the money from U., who continued to pay prisoner his wages during the whole period. Subsequently R. reconveyed the estate and effects to U. But the deed was not registered until after the embezzlement charged against the pri- soner. Prisoner servant of U.). Reg. V. Carpenter (1869), 1 C. C. R. 29 (prisoner, who was elected assistant overseer by the inhabitants in vestry, and subsequently appointed to that Not Servant — 207 (prisoner kept a refreshment room ; employed by prosecutors to gut orders for manure ; paid by commission ; no definite time to be spent in collecting orders ; with a view to obtain the security of guarantee society, prose- cutors paid a salary of 1?. a year). Reg. v. May (1861), 30 L. J. M. C. 81 (defendant employed to obtain orders for iron at a certain commission. It was his duty to account immediately to the prosecutors for any money he received). Reg. V. Bren (1863), 33 L. J. M. C. 59 (prisoner a member of a committee formed of members of two friendly societies for the purpose of conducting a railway excursion ; defendant and others nominated to sell tickets ; received no remuneration ; he did not pay over pro- ceeds of tickets to person appointed to receive the money). Reg. V. Glover (1864), 33 L. J. M. C. 169 (under-bailiff' of County Court, not servant of high bailiff, though appointed by him ; servant of the Court). Reg. V. Boivers (1866), 1 C. C. R. 41 (prisoner first employed as agent or traveller for the sale of coals at a salary of one guinea a week and Lv. a ton com- mission to collect debts. Subsequently on his going into the letail trade salary stopped, and only paid by commission). Reg. V. Mayle (1868), 11 Cox, C. C. 150 (M. employed as " London agent ;" no salary ; perfectly optional whether he obtained orders or not ; not bound to collect on any particular day). Reg. V. Marshall (1870), 11 Cox, C. C. 490 (prisoner employed by coal mer- chant ; to receive Is. M. per ton as procuration fee, and 4 per cent, for collecting, &c. ; no salary ; at liberty to go where he pleased for orders) . Reg. V. Negm (1873), 2 C. C. R. 34 (prisoner employed to solicit orders where he pleased ; and to be paid by commission ; received no salary ; not to hire himself to others than prose- cutor) . Reg. V. James Hall (1875), 13 Cox, C. C. 49 (au accountant and debt collector em- ployed by prosecutors to collect certain specified debts according to his dis- cretion ; to be paid by percentage ; jury found he was employed as a clerk: [k) See Ye'land v. Vmoent (1883). 47 J. P. 23J ; Yelland v. Winter (1.^85), 60 J. P. 38 ; Hix, C. C. 49. In some instances the question is one entirely for the judge : R. v. Bowers, I C. C. R. 41, where the documents decided the question. See 31 & 32 Vict, c 116, as to larceny by joint owners. DEFINITION OF MASTKR AND SKRVANT. 13 and service A. contracts with B. to build a wall of a specified length and height for a certain sura ; A. is to be fi-ee to provide the necessary labour and materials in any manner he chooses ; B. bargains for the result of A.'s labour and skill. Though a contract to work for B., this is different from an agreement by A. to build a wall for B., subject to his directions, and to labour exclu- sively for him during certain hours. In English law the former is a contract of work and labour, the latter, one of hiring and service. An artist receives a commission to paint a portrait ; a journeyman painter is employed to paint coaches under the supervision of a foreman : a commissionaire is employed to go on a special errand ; a lad is hired to carry the messages of an establishment ; a carrier agrees to take a parcel from one place to another ; it is a man's duty to carry the goods of a certain firm and subject to their directions — these are so many instances, respectively, of contracts of work and labour, and contracts of master and servant. Some common tests of the existence of this relationship are not conclusive. Two persons are not always respectively master and servant, because the one can discharge the other (/). The hand which pays wages is not necessarily the master's {ni). A person may be entitled to exercise control over others who work, and yet they may be not his servants, but the servants of a contrac- tor («). A. may be bound to give service exclusively to B., and yet he may not be for all purposes B.'s servant (o). The person who appoints or engages a servant is not necessarily the master ; he may be only the agent of the master. Though the crew of a ship are generally engaged and may be dismissed by the captain, not the owner, they are the servants of the latter (//). A stevedore is appointed by the charterer of a vessel ; he may be {I) Reedie v. London % North Wcsfcrn 58. See It. v. Cnllahan (1837), 8 C. & Rail. Co. (1849), 4 Ex. 244. P. 154 (Callahan appointed by vestry- (//;) Willett V. ^oo/e (1860), 6 H. & N. men of the parish ; rightly described as 26. servant of committee of management) ; (?») Allen V. Haytvard (1845), 7 Q. B. R. v. Jinson (1835), 1 Mood. 434 (clerk 960, but see remarks of Denman, C. J., elected by managers of savings' bank ; at p. 975 ; Marrow v. i^/jwAy, [1898] 2 rightly described as clerk to thetiustees). Q. B. 588 ; Fitzpntrick v. Evmis, [19U1] See also Sto>ic v Carturight (1795), 6 1 Q. B. 756 ; Johnson v. Lindsay, [1891] T. E. 411 ; R. v. Hoseason (1811),' 14 A. C. 391. East. 605. See Bogy v. Pearse (1851) (o) Bowen v. Hall (1881), 6 Q. B. D. 10 C. B. 534, as to public officers ap- 333. pointed under Acts of Parliament, and \p) Hedlcy v. I'vtkncy, [1892] 1 Q. B. to be paid out of rates. 14 DEFINITION OF MASTER AND SERVANT. paid by and act under the aptain of the vessel. He or his men will not necessarily be the servants of the captain or the owner {pp). The relation may exist between two persons, both of whom per- form manual work {q) ; and a man may be the servant of another, though his remuneration may not be called wages, but profit or commission (r). He may be a servant, though he performs no manual work, though he is a coufrf-maltro or chef d'oiivn'cr.s. " Master " is used in different senses. But if all these elements, viz. : — (a) Power to appoint ; (b) power to dismiss ; (c) liability to pay wages ; be present clearly in operation, and there be no question of agency, that is conclusive. In the case of actions of seduction, the common tests of the relationship fail. By a legal fiction, the relation of master and servant is sometimes said to exist between parent and child, v;Iien, in any but a very vague sense, the former is not a master, and the latter is not a servant (.s). Employers may contract with workmen as if they were employers; or two or more employers with their workmen may combine for the performance of a certain work or undertaking ; and in carrying out these combined efforts a workman may be, at one moment, under the control of A., at another of B. This con- currence or combination may be temporary, it may be simul- taneous or consecutive. The early economists investigated the " division of labour," that is, the employment of various workmen belonging to one concern under the control of one employer in carrying out one object. Modern industry exhibits more and more instances of the concurrence or combination of labourers employed in several concerns, it may be by several employers, witli a common object {t). (pp) Cameron v.Ny Strom, 1 1893] A. C. s. 47). See Reg. v. JF/a^e (1839), 8 C. QQQ ct P. 742, as to servant paid by gratui- (q) AsJmorth v. S amvix (1861), 3 ties. E. & E 101; Mcllors ^. Shaw {ISin), (.v) Chapter XIX. 1 B A; S 437 ('^) ^«^6"='" v. Binnwgion (1890), 25 (r) See" lirq V McDonald (1861), L. & Q. B. I). 320, well illustrates this com- 0.^5 (defendant paid partly by salary plexity m modern industry. A gram and partly by a ijercentage on profits; vessel was unloaded by A., the con- a servant within 7 & 8 Geo. IV. c. 29, signees, and B., the ship-owners. A. s DEFINITION OF MASTER AND SERVANT. 15 There may be combination or eolleotive employment with or without common control ; and the control may be limited or complete. This state of things has given rise to several questions, of which the two most important are : — (1) For the neglect or omission of what workmen are employers liable ? and (2) What workmen are "fellow-workmen" within the rule stated in Chapter XXVI. ? In the cases is a tendency to extend the relation of master and servant far beyond what it originally included. The decisions treat workmen as " servants," where no contract of master and servant in strictness exists, and where " agent " would have been a more accurate term. The following are some examples of combination of labour : — (i) A servant is " lent," and is, for the time, entirely under the control of the borrower : — the state of things in JFi/d v. Waygood i^n). In Bonovtni v. Laing, Sfc. (./■), the defendants " lent " a workman to a master stevedore to work a crane, which belonged to the defendants. Though paid by the defendants and in what is called their " general employ- ment," the workman was at the time of his negligent act entirely under the control of the stevedore, lle/d, that the defendants were not liable. (ii) The owner parts with the possession of property on which his servants are engaged, and ceases to control them. The commonest case of this character is the chartering of a ship. It is clear that, if the owner parts entirely with the control of the vessel, the master and officers cease to be his servants, so far, at any rate, as regards liability for their acts, e.g., for their contracts or torts ; and it matters not whether the person dealing with the ship had notice of the charter (//) . ' ' No doubt, when a shipowner who enters into a charter-party without parting with the possession and control of his ship, seeks work was undertakeu by the British v. White Mo.ss Colliery Co. (1876), 1 C. Dock Company, C who employed a P. D. .506; 2 C. P. D. 205. firm of stevedoies, D. ; while B. em- [x) [1893] 1 Q. B. 629. ployed another firm, E. The" bushellers" [y) BaxDinoll JLviiif'itctKr von Carl who put the grain into the sacks were Scheibltr v. Funic-.s. [1893] A. C. 8. employed by A. ; the " winchmeu" by The proposition stated in the text seems B. ; the '• weighers" by A.; the ''tally- to have been doubted as late as 1826: man" by A. and B. ; the "leaders" see Limfihrr v. Pointer, 5 B. \- C. at by A. ; the "foreman " by B. p. 566. (m) [1892] 1 Q,. B. 783. See Rourke IQ DEFINITION OF MASTER AND SERVANT. to limit tho powers assigned by law to his captain, the limitation will bo altogether ineffectual in any question with shippers who are ignorant of the terms of the instrument But I know of no principle or authority, which requires that notice must be given, when an owner parts, oven temporarily, with the possession and control of his ship in order to prevent the servant of the charterer from pledging his credit " (2). To make the captain and crew cease to be the agents of the shipowners and to become the agents of the charterers, the sliipowner must have divested himself of all control (a) ; in the absence of this he will be liable to thii'd parties, even if he has stipulated, as between himself and the charterers, that they are to be liable (6). (iii) In another class of cases A. hires the property of B. ; B.'s servant controls that property, and B. retains the control of his servant. This was the state of facts proved in Laugher v. Poiuter {c), Quarnian v. Burnett [d], and Jones V. Corporation of Liverpool {e). In the first of these cases the owner of a carriage billed from a livery-stable keeper for the day a pair of horses and a driver. The horses belonged to the livery-stable keeper in whose employment the driver was. The plaintiff having been injured in consequence of the negligence of the driver, the question arose whether the hirer, who was the owner of the carriage, was liable. Two judges, Bayley, J., and Holroyd, J., were of opinion that he was liable. Two judges, Abbott, C. J., and Littledale, J., took the opposite view. The point was finally decided in Qiiarman v. Burnett (r/), the facts of which , were these : The owners of a carriage, who were in the habit of hiring horses from the same person for a day or for a drive, always had the same driver, gave him a fixed gratuity, and provided him with a livery, which he kept in the hirers' hall. While he was hanging up the livery, he left the horses unattended. An accident happened, and the plaintiff was injured. The Court of Exchequer adopted (z) BauinuoU v. 1-urnrss, 1 c, per Lord (A) Manchester Trmt v. Ftiniess, [1895] Watson, at p. 21. fiee Baumuc//, ^-c. v. 2 Q. B. 539. _ Gilc/,ri.t, [1892] 1 Q. B., per Esher, {c) (1826) 5 B. & C o-i^ M. R., at pp. 258-9. (d) (1840), 6 M. & W 499 See (a) C'olvm V. Ncwhery (1830), 7 Bing. Smith v. Lawrence (1828), 2 M. A: K. 1 ; 19l»- Baumwoll v. Furness, I.e. Brady v. Giles (1835), I M. .t Rob. 494. ' (e) (1885), 14 Q. B. D. 890. DEFINITION OF MASTER AND SERVANT. 17 the view of Abbott, C. J., and Littledale, J. In delivering the judgment of the Court, Baron Parke said : — It is undoubtedly true that there may be special circumstances, wbich may render the hirer of job horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master. He may become so by his own con- duct, as by taking the actual management of the horses, or ordering the servant to drive in a particular manner, which occa- sions the damage complained of, or to absent himself at one particular moment, and the like. As to the supposed choice of a particular servant, my brother Maulo thought there was some evidence to go to the jury of the horses being under the defendants' care, in respect of their choosing this particular coachman. "We feel a difficulty in saying that there was any evidence of choice, for the servant was the only regular coachman of the job-mistress's yard ; when he was not at homo, the defendants had occasionally been driven by another man, and it did not appear that at any time since they had their own can-iage, the regular coachman was engaged, and they had refused to be driven by another ; and the circumstance of their having a livery, for which he was measured, is at once explained by the fact, that he was the only servant of Miss Mortlock (the livery-stable keeper) ever likely to drive them. Without, however, pronouncing any opinion upon a point of so much nicety, and so little defined, as the question, whether there is some evidence to go to a jury, of any fact, it seems to us, that if the defendants had asked for this particular servant, amongst many, and refused to be driven by any other, they would not have been responsible for his acts and neglects. If the driver be the servant of a job-master, we do not think he ceases to be so by reason of the owner of the carriage preferring to be driven by that particular servant, where there is a choice amongst more, any more than a hack post-boy ceases to be the servant of an innkeeper, where a traveller has a particular preference of one over the rest, on account of his sobriety and carefulness. If, indeed, the defen- dants had insisted upon the horses being driven, not by one of the regular servants, but by a stranger to the job-master, appointed by themselves, it would have made all the difference. Nor do we think that there is any distinction in this case, occasioned by the fact that the coachman went into the house to leave his hat, and might therefore be considered as acting by their directions, and in theii- service. There is no evidence of any special order, in this case, or of any general order to do so at all times, ivithout leaving any one at the horses^ heads. If there had been any evidence of that kind, the defendants might have been well considered as having taken the care of the horses \ipon themselves in the mean- time. Besides these two circumstances, the fact of the coachman wearing the defendants' livery with their consent, whereby they were the means of inducing third persons to believe that he was their servant, was mentioned in the course of the argument as a M, C 18 DEFiNrriox or master and servant. gi'ound of liability, but cannot affect our decision. If the defen- dants had told the plaintiff that he might sell goods to their livery servants, and had induced him to contract with the coachman, on the footing of his really being such servant, they would have been liable on such contract : but this representation can only conclude the defendants with respect to those who have altered their ccmdition on the faith of its being true. In the present case, it is matter of evidence only of the man being their servant, which the fact at once answers. We are therefore compelled to decide upon the question left unsettled by the case of Laur/her v. Pointer, in which the able judgments on both sides have, as is observed by Mr. Justice Story in his book on Agency, page 406, " exhausted the whole learning of the subject, and should on that account atten- tively be studied." We have considered them fully, and we think the weight of authority and legal principle is in favour of the view taken by Lord Tenterden and Mr. Justice Littledale. The imme- diate cause of the injury is the jiersonal neglect of the coachman, in leaving the horses, which were at the time in his immediate care. The question of law is, whether anyone but the coachman is liable to the party injiu-ed ; for the coachman certainly is. Upon the principle that qui facit per aliuin fadt per se, the master is respon- sible for the acts of his servant ; and that person is undoubtedly liable, who stood in the relation of master to the wrong-doer — he who had selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for mis- conduct, and w'hose orders he was bound to receive and obey ; and whether such servant has been appointed by the master directly, or intermediately through the intervention of an agent authorised by him to appoint servants for him, can make no difference. But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist : and no other person than the master of such servant can be liable, on the simple ground, that the servant is the servant of another, and his act the act of another ; consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable ; and to make such person liable, recoru'se must be had to a different and more extended principle, namely, that a person is liable not only for the acts of his own servant, but for any injury which arises by the act of another person, in carry- ing into execution that which that other person has contracted to do for his benefit. That, however, is too large a position, as Lord Chief Justice Eyre says, in the case of Bush v. Steinman (1 Bos. & Pull. 404), and cannot be maintained to its full extent without overturning some decisions, and producing consequences which would, as Lord Tenterden observes, " shock the common sense of all men:" not merely would the hirer of a post-chaise, hackney- coach, or whcny on the Thames, bo liable for the acts of the owners of those vehicles, if they had the management of thorn, or their servants, if they were managed by servants, but the purchaser DEFINITION OF MASTER AND SERVANT. 19 of an article at a shop, which ho had ordered the shopman to bring home for him, might bo made responsible for an injury committed by the shopman's carelessness, whilst passing along the street. It is true, that there are cases— for instance, that of Bimh V. Steinman, Shj v. EdfjJei/ (6 Esp. 6), and others, and perhaps amongst them may be classed the recent case of Rundleson v. iMiirray (8 A. & E. 109) — in which the occupiers of land or buildings have been held responsible for acts of others than their servants, done upon, or near, or in respect of their property. But these cases are well distinguished by my brother Littledale, in his very able judgment in Laugher v. Pointer. The rule of law may be, that where a man is in possession of fixed property, he must take care that his property is so used or managed, that other persons are not injured ; and that, whether his property be managed by his own immediate servants, or by contractors with them, or their servants. Such injuries are in the nature of nuisances : but the same principle which applies to the personal occupation of land or houses by a man or his family, does not apply to personal movable chattels, which, in the ordinary con- duct of the affaii's of life, are intrusted to the care and manage- ment of others, who are not the servants of the owners, but who exercise employments on their own account with respect to the care and management of goods for any persons who choose to intrust them with them. It is unnecessary to repeat at length the reasons given by my brother Littledale for this distinction, which appear to us to be qmte satisfactory ; and the general pro- position above referred to, upon which only can the defendants be liable for the acts of persons who are not their servants, seems to us to be untenable. We are, therefore, of opinion, that the defendants were not liable in this case, and the rule must be made absolute, to enter a verdict for the defendants on the second issue (/). In Jotips V. Corporatio)). of Liverpool tlie defendants had hired a horse and driver to drive their water-cart. The defendants' inspector only pointed out the streets to be watered. On the authority of Quarman v. BitDiotf, the defendants were held not liable for the negligence of the driver {g). (/) It has been held that the hirer bailee, Abraham v. Bullock (1902), 86 of a horse and cah is liable vmder his L. T. 796 ; Cheshire v. Bailey, [190o] 1 contract of baibnent tor damage due to K. B. 237. See p. 244, infra. his own coachraaii's neg-ligent diiving, {g) The distinction suggested by even thotigh it be outside the scope of Grove, J., in Jones v. Corporation of his employment : Coupe Co. v. Maddick, Literpool, betweeu the lending of a ser- [1891] 2 Q. B. 413; now overruled by vaut gratuitously aud leudiufr him for /Sanderson v. Collins (C. A.), [1904] 1 remuneration is overi'uled in Donuran v. K. B. 628. See as to liability of bailor, Laing, S;c., [1893] 1 Q. B. 629. Ajid lur his servant's acts or omissions, to see Cameron v. Nijstrom, [1893] A. C. c2 20 DEFINITION OF MASTER AND SERVANT. In Jones v. Scidhird (//) the defendant, wlio owned a hroiighara, horse, and harness, which he kept at a livery- stahle, was in tlie liahit of being driven by a servant of the livery-stable keeper. While the brougham was being drawn by the defendant's horse, the driver through his negligence lost control of the horse, which damaged the plaintiff's shop- window. The driver had been driving the brougham continnously for six weeks, and was wearing a suit of livery supplied by the defendant ; but was imperfectly acquainted with the horse, which had been recently purchased. It was held on these facts by Russell, C. J., that there was evidence to go to the jury that the driver was acting at the time of the accident as the defendant's servant. (iv) Siih-contracts give rise to difficulties. The contractor may employ one set of men, the sub-contractor another ; and yet for certain purposes both sets of men may be regarded as in the employment of the contractor. Suppose that A.,. an employer, contracts with B., another employer, for the performance of certain work by B. ; A. exercising over B. or his workmen no control — the state of things proved in Abraham v. Reij}iohh (/). In this case A. was at common law (subject to certain exceptions) not liable for the acts of the servants of B. {J). In some of the early cases of sub-contracts and joint operations there was a tendency to regard the servants of A. and B. as being in a common employment (/•). The decision of the House of Lords in Lhidsay v. Johmon (/) has put the law on that point on a proper basis. In that case H. contracted to build a block of artisans' dwellings in accordance with specifications, which provided for fire- proof roofs, &c. being supplied by Iv. The plaintiff, a workman paid by H., was injured by the negligence of a 308; Eedley v. Pinkney, ^c, [1894] 433. For the purposes of the Work- A. C. 222 ; Waldock v. Winfeld, [1901] men's Compensation Act, 1906, the 2 K. B. 596; The Louise (1902), 18 lender or letter-out of the servant is the Times L. R. 19; Milcham v. Borough of employer: see sect. 13. Maryhhone and Latter (1903), 67 J. P. {i) (1860), 5 H. & N. 143. 110. jl/oorc V. P«/««- (1886), .51 J. P. (./) Sec Chap. XXIV. w/ra. For the 196 (C. A.), as reported, seems quite purposes of the Workmen's Compensa- irrcconcileable with Donovan v. Lu'xny. tion Act, 1906, a sub-contractor's work- The facts of the t\v(j cases arc identical ; men are treated as in the employment the decisions in direct conflict. of the " pi'incipal " : sect. 4. (/>) [1898] 2 Q. B. 565; followed in (IS) See Woodhead \. Gartners Tmperial Dewar v. Tasker (C. A.) (1907), 23 Times Co. (1877), 4 Sc. Sess. Cas. (4th Ser.) 469. L. R. 259; and Perkins v. Stead, Ibid. [1) [1891] A. C. 371. DEFINITION OF MASTER AND SERVANT. 21 servant in the employment of L. The House of Lords held that the two servants were not in a common employ- ment. Lord Herschell there says (p. 377) :— Unless the person sought to bo rendered liable for the negligence of his servant can show that the person so seeking to make him liable was himself in his service, the defence of common employment is not open to him. Lord Watson puts the same point thus (p. 382) : — I can well conceive that the general servant of A. might, by- working towards a common end along with the servants of B., and submitting himself to the control and orders of B., become pro hdc vice B.'s servant in such sense as not only to disable him from recovering from B. for injuries sustained through the fault of B.'s proper servants, but to exclude the liability of A. for injmy occasioned by his fault to B.'s own workmen. In order to produce that result, the circumstances must, in my opinion, be such as to show conclusively that the servant submitted himself to the control of another person than his proper master, and either expressly or impliedly consented to accept that other person as his master for the pvu'poses of the common employment. (v) There may be sub-contracts similar to the above, except that A. has under the contract certain rights of control over B. or B.'s workmen. Sometimes the rights of A. are so large that it is clear that the servants of B. are, for purposes of liability, servants of A. ; sometimes the extent of the right of interference is such that it is doubtful whether the relation is that of master and servant. In Hardaker v. Idle District Council {m), where the contract required the contractor to pay attention to " any dii'ections or instructions " of the inspector of the council, and empowered the inspector to dismiss men, Eigby, L. J., differing from Lindley and Smith, L. JJ., thought that the contractor and his men were in law the servants of the council. Again, there may be a power of dismissal of the contractor's servants without any real control (;?). In Penny v. Wh)ibledo)i Uvhan Council {o) the defendants employed I, a contractor, to execute work according to the instructions of the defendants' surveyor. The defendants, as having control of the works, were held liable for the negligence of I.'s workmen. [m) [1896] 1 Q. B. 335. Rail. Co. (1849), 4 Ex. 244. [n] ^eeMeediey. London % North Weitern (o) [1898] 2 Q. B. 265. 22 di:finition of master and servant. From the cases are deducible two conclusious : — (1) That a servant X. of A. will be viewed as the servant of B., if B. exercises control over X. ; (2) that as between X. and the other servants of B., he will not bo treated as a fellow-servant, unless there is a common master. In the older cases determining liability, stress was laid on the question : Who selected the alleged servant ? Now-a-days the decisive question is : Who controlled the servant ? The test, however, is ambiguous : it may mean " who in fact controlled," or " who had a right to control." Sometimes the authorities use the test in one sense, sometimes iu another. X., the general servant of A., is lent to B. ; A. paying his wages and retaining the right to dismiss him. So long as B. or his agent in fact gives orders to X., and X. agrees to obey them, B. is his master, and, apart from questions of common employment, is liable for X.'s wrongful acts. But if there is no privity between X. and B., in what sense is X. imder B.'s control ? Suppose that X., preferring to work in his own way, refuses to obey B.'s orders, can the latter be said to control the former ? Control implies the right to give commands and to dismiss if they are not obeyed. B. can do nothing : he cannot dismiss X. or stop his wages ; he can merely complain to A. If a man lets out a carriage on hire to another, he in no sense places the coachman under the control of the hirer, except that the latter may indicate the destination to which ho wishes to be driven. The coachman does not become the servant of the person he is driving, and if the coachman acts •wi'ongly, the hirer can only complain to the owTier of the carriage [p). In the case in which these remarks were made (^j), the hirers had no rights as to the servant except that of complaining ; and yet they were held liable, doubtless on the ground that the hirers gave and the servant in fact obeyed orders. It is submitted that, if there is no control or right to control, the relation of master and servant does not exist ; and liability, if it exist, must be based on other grounds. What are they ? In the absence of evidence of negligence on the part of B. or his servants, it is submitted that B. is in the position of the defendant m the carriage-hiring cases ((/), viz., he is not liable, {p) Donovan v. Laing, fc, [1893] 1 [q) Laugher v. Pointer (1826), 5 B. «& Q. B., per Boweu. L. J., at p. G34. C. 547 ; Quarman v. Burnett (1840), 6 M. •^ & N. 499. DEFINITION OF MASTER AND SERVANT. 23 unless he has " actively interfered " with X., and has so become " the procurer of the wrongful act complained of " (>•)• If there has been negligence on the part of B. or his servants, the test of liability is the same as in EnijeJhart v. Farrant (.s) ; viz., was the negligence of B. or B.'s servants the " effective cause " of the damage ? And that is a question of fact. If A. lends to B. an incompetent servant, or a servant in charge of a machine which is defective owing to his own or his servant's negligence, A. will, possibly, be liable to any one injured thereby {t) : though the nature of the defect, and the circumstances in which B. failed to detect it, might supply evidence of negligence, which would fix B., primarily at least, with liability {u). One may be for some purposes a servant, and for others not. A prima donna, engaged to sing so many nights, would not be for all purposes a servant ; obviously she would not, for example, be a "servant" within the meaning of sect. 68 of the Larceny Act, 1861 ; nor would she be bound to sing as the manager chose to direct. Yet she is so far regarded as a servant, that an action will lie for enticing her away from her employment {x). To take another example of the same difficulty, a person may not have been properly appointed a servant of a banking or other company, and he could not fairly contend, as a regularly appointed servant could, that he was entitled to a certain notice before being discharged ; but if he were suffered to act as cashier, manager, or otherwise, the company would not be permitted to disclaim responsibility for his acts {y) . Subsequently it will be pointed out that for some purposes a (»•) Donovan v. Laing, S;c., [1893] 1 (per Vaughan Williams, L. J., at p. Q. B., per Bowen, L. J., at p. 634. 603). But is A. liable? X. was not, at the {s) [1897] 1 Q. B. 240. In that case time of the -wrongful act, engaged on T. , who did the wrongful act that caused A.'s work, save in a very indirect sense ; the damage, was, for the purposes of nor was he under A.'s physical control. that act, a stranger to the defendant. It would appear on authority that he is {t) See JJonovan v. Lai)ig, S;c., [1893] liable: see Rex v. Ivinyhon, 2 Botts. 1 Q. B., per Esher, M. R., at p. 632. 293 ; Chilcot v. Bromley (1800), 12 Ves. («) B. would probably have a right of 114; Holmes v. Onion (1857), 2 C. B. action over against A. : see 3fowbrai/ \. N. S. 790; Waldock v. Winjield, [1901] Merrywcathcr, [1895] 1 Q. B. 857. 2 K. B. 596. The latter case was de- [x) Lumley v. Gyc (1853), 2 E. & B. cided on the special contract, but there 216. Compare the remarks of Lord are dicta to the effect that the presump- Westburj- in Knox v. Gye (1872). L. R. tion as to " control" is against the 5 H. L. 675, as to a similar ambiguity lender of the servant: " In every case in " trustee." in which a person has been held to be (//) Bank of United States y. Dandridge, in control of a servant, who for general 2 Wheaton, 64. See also R. v. Beacall purposes was servant of some one else, (1824), 1 C. & P. 457 ; Re County As- there has been some fact or clause of an surance Co. (1870), L. R. 5 Ch. 288 ; ao-reement which led to that conclusion" and Brice on Ultra Vires, 644. 24 DEFINITION OF MASTER AND SERVANT. volunteer is treated as a servant (z). In tlio chapters relating to masters' liabilities for the acts of servants, it will be seen that those who de facto perform work for another, though not under any agreement, will be treated as servants (r/). This has long been recognised. " A wife, a friend, a relation, that use to transact business for a man," says Blackstone, " are quoad hoc his servants " (a). In other w^ords, though the relation of master and servant does not strictly exist, they may bind him as his agents within the scope of their authority. A third person engaged by a servant to act in his master's business in circumstances of necessity may make that servant's master liable for his torts. But the necessity must be proved to establish the servant's authority to engage the third person [b] ; and there is much force in Lord Esher's contention {c) that the doctrine of authority by necessity is in English law confined to a few exceptional cases. Services are frequently rendered in circumstances which leave it uncertain whether they are done in virtue of an implied con- tract or out of affection and gratitude. A person goes to stay with a relative and does work for him. A boy is taken into a household out of charity and assists his benefactor. A person does work for another, who has promised or is expected to leave him a legacy (d). It is not easy to say in such cases whether or not there was an implied contract of hiring and service. It matters not that no words on the subject passed ; if the understanding be that one is to do work for another and subject to his orders, the relation of master and servant will exist. Often it is not easy to know whether the parties meant or understood what they did not in fact express, or expressed what they did not really mean. In the many cases which have arisen with respect to persons alleged to be " clerks or servants " within the meaning of sect. 68 of the Larceny Act, 1861, the difficulty has been chiefly one of fact; (z) Page 289, infia; Booth v. Miste)- ploycrs and Workmen Act, 1875 : (1835), 7°C. & P. 66 (plaintiff's carriage Vaughan "Williams, L.J. (at p. 608j, injured by defendant's team; at time of tliinks they "were intended to cover injury the team driven not by servant the case of apprentices and butty-men of defendant, but by person to whom who contract as representing the men." defendant had intrusted the reins: de- («) Com. 1, 418. fendant liable). In Marrow v. Fiimbij, [h) Gtvilliam v. Tivint, [1895] 2 Q. B. ^•c, [I898]2 Q. B. 588, Rigby, L. J. (at 84 (C. A.). See the remarks in the p. 602) suggests that it is volunteers judgments in Jinrrd v. London General who are aimed at by the words "who Omnihm Co., [1900] 2 Q. B. 530. works under a contract with an {o) GwiUiam v. Tirist, 1. c, at p. 87. employer," in sect. 10 of the Em- {d) See Chap. IX. DEFINITION OF MASTER AND SERVANT. 25 the jury have been asked to say, from the whole circiirastances connootod witli the employment, whether the prisoner was a servant. It has been decided that a person who is employed by more than one person may be " a clerk or servant " within the 24 & 25 Vict. c. 96, s. 68, and 7 & 8 Greo. IV. c. 29, s. 47. In Regina v. Batty {e), a clerk employed by A. to sell goods for him was convicted of embezzlement, thougli at tlie same time he was employed by other persons in other business ; and in Mex v. Carr {/) it was also held that a traveller employed by several houses might be properly convicted of embezzlement. How it is employed in any statute can be known only by studying the language and object of the enactment. Take, for example, the phrase " servant or other person " in the 32 & 33 Vict. c. 14, s. 11, and 41 Vict. c. 15, s. 13. Tenements occupied as a house for the purposes of trade only, or as a warehouse for the sole purpose of lodging goods, wares, or merchandise therein, or as a shop or counting-house, or being used as a shop or counting- house, are exempted from inhabited house duties, " although a servant or other person may dwell in such tenement, or part of a tenement, for the protection thereof." Every species of servant does not come within this exception. The object of the Legislatm-e in creating it must be considered. It was not intended that under this section a counting-house or warehouse should be used also as a dwelling-house. The respondent in Yeicen.s v. Noakea {g) claimed exemption in respect of premises used for the purpose of his trade. A clerk in his employment at a salary of 150/. a year lived on the premises in order to take care of them ; he and his wife, children, and servant occupied five rooms. The Court of Appeal thought that the clerk, though a servant, did not come within the Act. " It appears to me," said Lord Justice Thesiger, " that the Legislature, in using the term ' servant,' is using that term in the ordinary and popular sense of it ; that is to say, not in the sense in which any clerk or manager is called the servant of his employer, or in the sense in which the judges might be said to be the servants of the Crown, but in the sense of the ordinary menial or domestic servant." Yet even in this case, Lord Justice Thesiger added, if the Commissioners had found as a fact that the clerk was a "servant or other person " within the Act, the Court would not have been (e) (1842), 2 Mood. C. C. 2;j7 ; li. v. Fohitcr (1826), 5 B. & C. oQd, and in Leech (1821), 3 atur. 70 ; and Tite's Vase Hardij v. lii/le (1829), 9 B. A: C. 603. (1861), 30 L.J. M. C. 142. See also (/) (1811), R. & R,. 198. remarks of Baylev, J., iu Lawjher v. [g) (1880), 6 Q. B. D. 530. 26 DEFINITION OF MASTER AND SERVANT. justified in intorferino- with their decision. On tlie othei' hand, in Rolfr V. Ili/dc (//), decided subseq\iontly, the Court thought that the Income Tax Commissioners were justified in finding that a cashier witli a sahiry of 200/. a year, who occupied a sitting-room and bedroom on tlio top storey of tlie respondent's warehouses and counting-houses, and who slept on the premises solely as caretaker and for their protection, was " a servant or other person " within 41 Vict. c. 15, s. i;5, sub-s. (2). {h) (1881), 6 Q. 13. D. 673. 27 CHAPTER III. MASTER AND SERVANT AND MASTER AND SLAVE. The relation of Master and Slave cannot legally be created in England ; and no rights arising out of that relation can be here enforced (a). The exact legal position of a slave iu England was uncertain until the King's Bench, in 1772, in Lord Mansfield's time, decided Sommernetfs Case{b). Holt, C. J. (c), and Lord Northington (f/) had given expression to d/'cfa hostile to the rights of the slave- owner ; but there were decisions of a contrary character from 1677 {(') to the time of Lord Hardwicke's decision in Peanw v. Li.s/c (/'), that a slave was as much property as any chattel. In 1729, Sir Philip Torke, the Attorney- General, and Mr. Talbot, the Solicitor-General, gave it as their opinion that a slave, by coming from the West Indies to Great Britain or Ireland, did not become free ; and in consequence of this opinion slaves were publicly sold in London, Bristol, and Liverpool (g). In tlie first edition of Blackstone's Commentaries, published in 1766, it is stated (vol. i. p. 425), that "whatever service the heathen negro owes to his American master by general, not by local law, the same, whatever it be, he is bound to render, when brought to England and made a Christian." The question in Sommer- scft'ii Case {b) arose on the return to a writ of habeas corpus, which stated that Sommersett was the negro slave of Charles («) See note (k). 126 : " As soon as a man sets foot on (b) (1771 — 1772), 20 Howell's S. T. 1. English ground he is free ; a negro may See also Eniyht v. IVedderbiirn (1778), maintain an action against his master HLovvi&oii's Dictionary of Decisions, -p. \A, for ill-usage, and may have a habeas 545 (hiring for life without wages co;"j:>«.v if restrained of his liberty." held to be slavery). The English law (^) Butts y. Penmj iinn) , 2 Lev. 201; Courts were long reluctant to decide the Oelly v. Cleves (169i), Ld. Raymond question: Wynne's Law Tracts (a.d. ^47 ^'^lc)'slith V. Browne (1705), 2 Salk. (■^) (^^^^)' ^ ^^^bler, 75. 6G6. But see Forbes v. Cochrane (1824), [y) There were, it is said, 14,000 slaves 2 B. «& C. 448 ; 2 St. Tr. N. S. 147. in Loudon when Sommersett' s Case was {d) Slanl&y v. Rarvey (1762), 2 Eden, decided: Burge, Com. i. 740. 28 MASTER AND SERVANT AND MASTER AND SLAVE. Steuart, who had delivered him into the custody of Knowles, the captaiu of a ship lying in the Thames, in order to carry him to Jamaica, and there sell him as a slave. The Court decided that this was not a sufficient return. Slavery, said Lord Mansfield, " heing an odious institution, could he introduced only by jiositive law. What- ever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or ap[)roved by the law of England, and therefore the black must be discharged." Speaking of this decision in Rex v. Thames Ditton {//), Lord Mansfield stated that the determinations went no further than that the master (Knowles) could not compel the slave to quit England. Lord Stowell in the Slave Grace Cam {i) still further qualified the effect of the Sommemett Case. A slave had come to England with her master. Of her own accord she returned to the Island of Antigua, where slavery then existed. Lord Stowell decided that she had not become free by her temporary residence here, and that the owner's property in his slave had not been destroyed. " There is nothing that makes a liberation from slavery ; he goes back to a place where slavery awaits him, and where experience has taught him slavery is not to be avoided" (Jc). Slavery being illegal in this country, it has often been contended that contracts of hiring and service for life are in substance slavery, and as such should be regarded as null and void. In some countries the maxim nemo poted loeare opus in perpetuum is strictly applied (/) ; but here a contract to serve for life is valid, provided (A) (1785), 4 Doug. 301. in Forhe»v. Cochrane {IS2^), 2 B. & C. (i) (1827), 2 Hag. Ad. 94 ; 2 St. Tr. 4fiS, that " no action founded upon a N. S. 273. right arising out of slavery" could be (A-) The chief subisequeut decisions are: maintained in English courts, must Madrazo v. Wilh-s (1820), 3 B. & Aid. therefore be taken with reservation. 354 ; Buron v. Dn/man (1848), 2 Ex. The proposition at the head of this 167; Santos v. Illidyc (1860), 8 C. B. chapter must be read in the light of the N. S. 861. Tlie effect of these decisions above decisions. is thus stated by Cockburn, C. J., in {J) Infonuation as to the provisions his memorandum on the subject, to be on this point in modern codes is collected found in the report of the lioyal Com- in Cornil's Louage de Services, p. 42. mission on Fugitive Slaves, p. xxvii. : On ne peut engager ses services qu'd temps "These cases establish beyond con- ou pour entrcprisedeterminec : Art. 1780 of troversy that the tribunals of this Code Civil. See M. Laurent's Principes country recognise the right of property de Droit Civil Fran<;ais, 25, 542. Si of the owner of the slave, so long as the mime le temps .stipule etait tellement long slave is in the country by the law of quHl put equivaloir d ime alienation de la which the owner's right is upheld, or in liberte, hien qu'il ne comprit pas la vie the possession of the owner in a ship of cntiere du locateur, les juges pourraient a nation in which slavery is lawful ; rompre un tel engagement : Troplong's and that if the property in the slave is Louage, ii. 288. M. Laurent takes up interfered with by a British subject, to the same position. So far, however, as the injury of the owner, an action for his remarks do not relate to cases in damages will lie to the extent of the loss which there is no consideration for the sustained." The dictum oi Best, C. J., promise to ?erve for life, they would MASTER AND SERVANT AND MASTER AND SLAVE. 29 it be not open to the objection of fraud or duress, and provided there be consideration for the promise. This was first decided in 1837 by the Court of Exchequer in Wallis v. Da// {in). The plaintifE sohi liis business as carrier to the defendants, and cove- nanted that he would hencefortli during his life serve them as an assistant iu the trade of carrier. The plaintiff's covenant to serve was held good. A contract of hiring must not be made a cover for the reality of slavery. Thus English law will not recognise in a master a right to imprison his servant for disobedience to orders or any other offence, even if a servant agreed to such terms of service (^/). It was, however, lawful for a convict to consent in writing to a term of imprisonment on obtaining pardon and commutation of his sentence by the Crown (o) . The common law would not even recognise the validity of an agreement by certain workmen or masters to work or not according to the decision of a majority (p). It is said, however, that there is one distinct exception to the principle that purely servile incidents cannot be attached to a contract of hiring ; a master may, it is said, chastise a hired servant {q) . Notwithstanding dirfa to be found to this effect, such invalidate all contracts of hiring and service, whatever might be their dura- tion. In Allen v. S/icne, Morrison's Dictionary of Decisions, pp. 23, 9451, a contract to serve three terms of nine- teen years was " reduced," as being in restraint of trade. As to other Scotch decisions, Campbell's edition of Eraser on Master and Servant, 3, -i. {m) (1837), 2 M. & W. 273. In Viner's Abridg., Master and Servant, N. 5, xv. 323, it is stated that a contract to serve for life must be by deed. The reference given is 2 H. 4, 15. The action, however, in this case was not by the master against the servant upon a con- tract to serve for life, but an action of simple debt against executors by a ser- vant to recover arrears of wages for services actually performed. Such an action was not then maintainable : 3 & 4 Will. IV. c. 42, s. 14. The case, too, turned on the Statute of Labourers. See also Blackstone (1st edit.), i. 424 ; Chitty on Contracts (13th edit.), 524, 526 ; and the notes on Peter v. Compton, 1 Sm. L. C. (Uth edit.), at p. 316. (m) Clarke v. Gape (1596), 5 Reports, 129. It turns on the doctrine of Magna Charta, c. 9, Nullus liber homo impri- sonetnr. See Foster v. Jackson {temp. Charles II.), Hob. 61 ; and the protest of EUenborough, C. J., in Hex v. Stow- market (1808), 9 East, 211, against the idea that a parish apprentice could be transferred as if a parisli slave. And see Year Books, 38 Hen. VI. 13. (o) See Forsyth, Constit. Law, p. 462, n. ; Leonard Watson's Case (1839), 9 A. & E. 783. (2)) Hilton V. Eckersleii (1856), 6 E. & B. 47. [q) Bacon's Abridgment, Master and Servant, N. It is clear that Hale {History of Pleas of the Grown, 453) and Ilawkins {Pleas of the Grown, i. 85) understood that such a power existed. See also Foster's Criminal Laiv, 262 ; and 3 Salk. 47. Such, too, seems to have been Holt, C. J.'s, ruling in KeaVs Case, which was a case of master and servant : Skinner (1697), 668. Blackstone, i. c. 14, only goes so far as to say that ' ' if the master or master's wife beat any other servant of full age, it is good cause of departure." In an anonymous case of the 2Sth and 29th Charles II., it was held a good answer to an action for assault and battery of one servant by another that the latter was ordered to bring the plaintiff from a conventicle. The Chief Justice and Scroggs, J., were of opinion that " a man may as well send for his servant from a conventicle as an ale- house, and may keep him from going to 30 MASTER AND SERVANT AND MASTER AND SLAVE. a right would not uow be admitted. Tlie authorities iu favour of tlie doctrine are old. Some of them referred to the relation of lord and villein ; such a right does not flow from the contra(>t of hiring and service as now understood ; modern usage is whollj^ against the existence of so dangerous a power ; and there are dicta — in JFiiisfonc v. Liirit (r), for example — against it. It may be taken to be law that the beating of a servant would be good ground for departure and for an action for assault. The (/icta to the contrarj^ are to be ranked with " such quaint and " absurd die fa as are to be found in the books as to the right of a " husband over his wife in respect of personal chastisement, not " now capable of being cited as authorities in a court of justice in " this or any civilized country " {s). On the other hand, a master may chastise his apprentice for negligence or disobedience, pro- vided it be done moderately (f). The apprentice is placed with the master to be instructed ; and us he cannot be dismissed for misconduct, which may be done in the case of a servant, and as the master stands /// /oco j>arei/fi.'>, it is deemed expedient to permit him to chastise an apprentice ; or, to use a common phrase, the authority of the parent is delegated to the master. That authority being itself delegated, the master may not delegate it to anyone else (it). It would appear from an old authority (x) that a master may not use violence in order to force an apprentice or servant to return to either of these places." Iu a learned 671, per Halsbury, C, at p. 679. anonymous work publiished in 1767, A great ma.ster of the common law, entitled " Lawn cuticvrnmg Maslem and c-.harginy a grand jury at Calcutta as Servants,'" p. 126, the existence of the to what in his view was, in 178.0, the right of correcting servants is recog- English law, said: "A master may nised ; and the same is tnie of Bird's legally correct his servant with modera- Law of Master and Servant (1801), p. 5. tion, and with a view to his amend- On the other hand, there is a passage in ment ; nor, if the servant thus corrected Fitzherbert, De N. B. 168, to the effect should die by some misfortune unfore- that battery by the master is a good seen and unlikely to happen, would the cause of departure. See al.so Hawkins, master be guilty of any crime ; but if P. C. i. 483. Kent in his Commentaries, the correction be immoderate, excessive, ii. 261, says the right of chastising unreasonable, cruel, the party may, "may safely be confined to aijprentices if ho live, have reparation in damages; and menial servants while under age, or, if he die, the master will be guilty for then the master is to be considered of manslaughter or murder according in kco parentis^ In Reg. v. ILuntleij to the circumstances:" Sir William (1852), 3 C. & K. 142, it was ruled Jones's Works, 7, 9. by Piatt, B., that one servant, even (<) Chittj^'s Gen. Prac. vol. i. 70a ; an upper servant, had no right to chas- Gilbert v. Fletcher, Cro. Car. 179 ; Penn tise another servant. See also Latter v. Ward (1835), 2 C. M. & K. 338 ; V. Braddell (1880). 50 L. J. Q. B. 448. Combes's Case (1613), 5 Rep. Pt. 9, 76a ; (»•) Holroyd, J. (1823), 1 B. & C. Walter v. Everard, [1891] 2 Q. B. at 469. The tendency of modern legisla- p. 376. tion on the subject may be collected {u) Combes\s Case, 5 Rep. Pt. 9, 75b. from such statutes as 24 ) . One technical distinction leading to important practical (e) (1862), 1 B. & S. 831; see Wis- {(/) (1791), 4 T. R. 489. And see per tings V. rcar>/). The question of possession arises as to chattels found by a servant. In the case of a servant, as in the case of other persons, the test is : — Had the finder a reasonable belief that the owner could be found ? As to this, the place, time, and general circumstances of the finding are material ; and in drawing conclusions from such evidence certain presumptions must be regarded. A water company brought an action in detinue to recover possession of two gold rings, which the defendant had found in the mud at the bottom of a pool. The plaintiffs were the owners in fee simple of the land covered by the pool, and had (i) Gordon v. Harper (1796), 7 T. R li. v. Rikij (1853), 22 L. J. M. C. 48. 9; Tancredv. Allgood (1859), 4 H. & N. (w) It is pointed out in Russell on 438 ; Mcars v. L. % S. W. Rail. Co. Crimes (6th edit.), ii. 326, that " the (1862), 11 C. B. N. S. 850. Semhle, he distinction between a servant and bailee can also sue in trover by virtue of his is still material ; for although in all special property and his ri<^ht to poa- such cases as the preceding one [It. v. session combined : see Fuwlvr v. Doun Hcij, I Den. C. C. 602) the drover would (1797), 1 B. & P., per Eyre, C. J., at now be puni.-diablo under the 24 & 25 p. 47. Vict. c. 96, s. 3, yet he would only bo {k) But see Moore v. Robinson (1831), Punishable as for a simple larceny, B. & Ad. 817. See Pollock & Wright ^^^/-f^^ servant is nmoh more severely D ■ MQoo „j-4. \ rn punishable under sect. 67. on /"ossftfsiow (1888 edit.), p. 59. i \ n r> ji i /io.jcm o r( f -d ^ ' '^ [n] R. V. Goodbody (18.38), 8 U. & P. (I) Roscoe, Criminal Evidence (13th 665 ; R. v. Uey (1849), 1 Den. C. C. R. edit.), 533. The rule did not apply to 602; R. v. Cooke (1871), 1 C. C. R, possession acquired by tresjiass or fraud : 295. SERVANT AND BAILEE. 35 engaged the defendant to clean it out. Lord Russell, C. J., thus states the law : — The general principle seems to mc to be that where a person has possession of house or land, with a manifest intention to exercise control over it, and the things which may be upon or in it, then, if something is found on that land, whether by an employee of the owner or by a stranger, the presumption is that the possession of that thing is in the owner of the locus in quo (o). So where a servant picked up some bank-notes in her master's house, and appropriated them without inquiry, she was convicted of theft {p). On the other hand, where notes bad been dropped in the public part of a shop, the finder was held entitled to tliem as against the shopkeeper (r/) . The distinction also meets one in considering the responsibility of a master for the negligence or tortious acts of a servant. It has arisen chiefly in actions brought against the owners of cabs for the negligence of drivers, the plaintiff alleging that the latter are servants of the owner ; the defendants contending that the drivers are bailees. The point was first considered in Morh'i/ v. Biois- comhe (;•), and the Court there thought that the driver was a servant remunerated in a peculiar way. In FowJcr v. Lock (s), a cabdriver received from a cab proprietor a cab and horse on condition that at the end of the day he should hand over 18s., he retaining for himself the balance of the day's earnings ; the horse's food to be supplied by the owner ; and the owner to have no control over the driver after he left the yard. The horse which the cab proprietor gave was fresh from the country ; it had never before been harnessed to a cab ; and it ran away and injured the driver. The jmy found that the horse was not reasonably fit to be driven in a cab. Byles, J., and Grrove, J., were of opinion that the relation between the proprietor and diiver was that of bailor and bailee, and that the driver might recover in an action against the pro- prietor. Willes, J., on the other hand, thought that the relation was that of master and servant, or that of co-adventurers, and that in the absence of proof of personal negligence or misconduct (o) South Stafordshire Water Co. v. Hamaker v. Blanchard, 90 Penn. St. Rep. Sharman, [1896] 2 Q. B. 44. 377. But, it is submitted, this is not [p] Ee(j. V. Kerr (1837), 8 C. &P. 176. the law in England. Of course a ser- (q) Bridges v. Hawkesivorth (1851), 21 vant, or anyone else, who finds a chattel L. J. Q. B. 75. In an American case has a good legal title against a mere it was held that there was no presump- wrong-doer : Armory v. Belamirie, 1 tion that money found in a public room Sm. L. C. 356 ; Mathncs v. Harsell in a hotel belonged to a guest, so as to (1850), 1 E. D. timith (N. Y.), 393. entitle the landlord to the custody of it (r) (1848), H L. T. 199. ^s against the servant who found it: (•>) (1872), L. R. 7 C. P. 272. d2 36 HIRING AND SERVICE AND SIMILAR CONTRACTS. on tlie part of tlio former, tlie latter could not recover (J). But it is now settled law that, so fiir as the public are concerned, a cab- driver to whom a cab is let on the terms above stated, is to be regarded as a servant, and that the cab proprietor will be answer- able for his negligence to third persons who are injured by the former (n). This conclusion was deduced from the language of the Metropolitan Hackney Carriage Acts (1 & 2 Will. IV. c '2'2, 6& 7 Vict. c. 86, and 32 & 33 Vict. c. 115). Registration under the Acts as licensed proprietor is not a condition of liability (.r). Sd/c and CoidractH of Service. The points of resemblance between sale and certain contracts of work and labour or hii'ing and service are considerable. They attracted the attention of the Koman jurists, and several passages in Gains, the Institutes, and the Digest deal with them. In the Institutes the following case is put to clear up the difficulty which arises when materials as well as labour are supplied by the artificer : " Suppose Titius agrees with a goldsmith that the latter shall make with his own gold rings of a specified weight and size for ten aurei, is the contract one of sale or hire ? Cassius says that there is a contract of sale of the materials and of hiring of the work ; but it has been decided that it is only a case of sale. If Titius had given his own gold, and a price had been fixed for the work, of course the contract must have been hrafio coiichictio " (//). The test, in short, was. Who furnished the material ? If the workman did so, then the contract was one of sale ; if the employer, the contract was one of hiring and service. This test, however, did not apply to cases in which the employer furnished one and the workman another part of the material ; there the rule was nceessorium sequitur principnle {z). Nor was the test strictly applied in other cases ; c.g.^ an architect, who agreed to erect a building, and find the materials, was said to have entered into a {t) The opiniou of Byles and Grove, Kiny v. Spuri\ 8 Q. B. D. 104, was held JJ., was not dissented from in King v. oven-uled by King v. London Improved, London Improved Cab Co. (1889), 23 Q. ^-c, iibi sup.); Gates v. Bill, [1902] 2 B. D. 28i ; and see the remarks of K. B. 38. Vaughau Williams, L. J., in Gates v. (.») Gates v. Bill, [1902] 2 K. B. ;58. Bill, [1902] 2 K. B. at p. 41. [y) iii. tit. 24, s. 4 ; Gains, iii. 146 ; (h) Fotvlcs V. Hider (1856), 6 E. & Dig. 19, 2, 2 ; Vangerow, Lehrbuch B. 207; Venables v. Smith (1877), 2 dcr Fandckten, s. 632; Laurent, 26th Q. B. D. 279; King v. London Improvea vol. p. 7 ; Pothier, Louage, 1, c. 1. Cab Co. (1889), 23 Q. B. D. 281 ; lieen {z) Story on Bailment, 247; Domat, V, Henry, [1894] 1 Q. B. 292 (where 1, tit. 4, s. 7. SALE AND CONTRACTS OF SERVICE. 37 contract of liiriug and letting, because he did not sell the soil on which the house stood, and to which it was an accessory {a). The question possesses importance in English law for several reasons. The 4th section of the Sale of Groods Act, 1898, provides that : — (1) A contract for the suh; of any goods of tlio value of ten pounds or ujj wards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in wi'iting of the contract be made and signed by the party to be charged or his agent in that behalf (6). (2) The provisions of this section apply to every such contract, notwith- standing that the goods may be intended to be delivered at some future time, or maj^ not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be reijuisite for the making or completing thereof, or rendering the same fit for delivery (r). In consequence of these enactments, it is often necessary to ascertain whether a contract is for the sale of goods or for work and labour. The question has been the subject of much controversy. In AtkiiiHO)> v. Bel/ {d), it wsls held that a contract for the manufacture and delivery of a machine was within the statute. In Lee v. Grijfiii {e), which was an action bj^ a dentist to recover the price of two sets of teeth, the correctness of the decision in Afkinson v. Be// was affirmed ; and the true eriteiion was thus stated by Blackburn, J. : — If the contract be such that, when carried ont, it would result in the sale of a chattel, the party cannot siie for work and labour ; but, if the result of the contract is that the party has done work and labour which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered. This criterion would place among contracts for work and labour such contracts as those in Clark v. Mtimford ( /') (a farrier employed professionally and supplying medicine), and in Grafton v. Annitage (jj) (a machinist employed by an inventor to make experiments, the former furnishing the materials), and contracts for making chattels and fixing them to the freehold [h). {a) Domat, tit. 4, s. 7. W (1S61), 1 B. & S. 272. [b) Are-enactment, with slight altera- ^j... ,^g^j. 3 f. g-^ tions, of sect. 17 of the Statute of Frauds, -^ / , /' ^ which is repealed by the Act cited (.-7) ^l^^^), 2 O. ±5. 3.5b. (c) A reproduction of sect. 7 of Lord {h) In Benjamin on Sale, 5th ed. Tenterden's Act (9 G-eo. IV. c. U). p. 158, the rule is thus stated: "If the id) (1828), 8 B. & C. 277. contract is intended to result in trans- 38 HIKIN(i AND SERVICE AND SIMILAR CONTRACTS. Servant (iiid Contractor. Tlic distinction between servant and contractor is, in theory, clear. It is recognised in many cases, and important consequences liang upon it (/). Speaking generall}', it may be said that if a person wlio is employed to execute work exorcises an independent employment, and is not subject to control — if, c.(/., a tradesman is called in by a householder to do a certain job in the way which seems best to the former — he is a contractor, not a servant. Probably the distinction cannot be put more clearly than it was by Brett, L. J., in explaining the law to the Select Committee on Employers' Liability : — If you were to coutract with, a person that he and his servants should do all your work in the way you should direct his servants to do it, they are your servants ; that is only a different mode of paying them ; but if you contract that he and his servants should do the work in the way he thinks best, then he is a contractor (A-). Clear though the distinction appears, it is often, in [)raetice, drawn witli difhculty; especially if the person giving out the work reserves to himself a right of directing or dismissing the servants of him who does the work (/). In Hardahcr v. Id/e D/.sfriet Council {in), the defendants contracted with T. that he should construct a sewer for them. By the ferring for a price from B. to A. a chattel (/) Wood {}[nsirr and Servant, p.^ 60 1) iu which A. had no previous property, thus distiii^ruishes the two relations: it is a coutract for the sale of a chattel." " AV^hen a ]>ersou lets out work to another A similar question arose as to the words to be done by hiui, such person to fur- " living- by buying and selling" in nish the labour, and the contractee 21 James I. c. 19, 8. "2, and 6 Geo. IV. re.serving no control over the work or c. 16, s. 2. Under these statutes the workmen, the relation of contractor and Courts held that a man who sold stones contractee exists, and not that of master from a quany on his own estate, or and servant." Gilbert v. JIalpin, 3 Ir. bought a coal mine, and worked it, and Jur. (N. S.) 300. (Action against seere- sold the coals, did not come within the tary of commissioners to improve Wick- above words ; Montagu and Gregg's low harbom-, for placing certain piles Bankrupt Laws, p. 8. not lighted ; defence that the defendants ,.> _, .„ ^ 1 •.,, /I D./, (1887), 20 Q. B. D. 285. By 54 & 55 [1907] 1 K. B. 139. Vict. c. 11, s. 2, the disqualification of (in) Brooks v. Baker vt uL, [1906] I soldiers for twenty-one days' absence K. B. 11. from barrack -quarters [Ford v. Barnes (w) 1 Hale's P. of C. 522. (1885), 16 Q. B. D. 254) was removed, (0) R. v. Peyton (1784), 1 Leach, 324. and it was provided that an absence {p) R. v. Hawkins, Foster, 38. during the qualifjdng period not exceed- (5) R. v. Wilson (1806), R. & R. 115. ing four mouths at any one time in the So, too. in the case of a steward of a performance of any duty arising out of club: R. v. Ashley (1843), 1 C. & K. tlie service, should not disqualify. 198; see, however, ii. v. J/T/r^rWs (1801), Compulsory absence for more thati four 2 Leach, 930: and R. v. Witt (1829), months disqualifies for the service fran- 1 Mood. C. C. 248. 44 HIKIN'G AND SERVICE AND SIMILAR CONTKACPS. which ho occupies may be properly described as his when he actually pays rent, and when his master could distrain, as in li. V. Jarn'.s (r). So, too, when a toll-keeper was employed by the lessee of the tolls to be taken at the gates, and when the house was unconnected with any premises of the lessee, who had no interest in it (s) ; or when a gardener lived in a cottage quite apart from liis master's house, and kept the key of it (f). Scrrants or Paiiiicrs. Clerks, salesmen, travellers, sailors, and, in fact, servants of all sorts, are often employed on the terms that they share in the profits of a business. Seamen and fishermen are occasionally paid in whole or in part for their services by a proportion of the profits of the adventure, voyage, or season. Are those who are thus remunerated partners ? Since the decision of the House of Lords in Co.r v. llickiiiaii (/i) the refinements of tlie old cases on this point liave lost their importance. In that case it was decided that tlio ground of liability as a partner is the relationship of principal and agent between the parties concerned ; of which relationship tlie sliariug of profits is " cogent and often conclusive " evidence : but the sharing in profits is only evideiice, which must be con- sidered in conjunction with the conduct of the parties, and their intention as collected from the terms and scope of the agreement in its entirety {x). In Ex parte Del/ias-se (//), a person who advanced 10,000/. had a right to a specified percentage of profits, subject to liability to share in losses. He had also a right to have accounts furnished to him. Though it was expressly stated that the sum was advanced by way of loan, under the first section of the 28 & 29 Viet. c. 86 (;:), the Court held that a partnership existed. The Partnership Act, 1890 (-"jli & 54 Vict. e. ^9), enacts as follows:— 1. — (1) Partnership is the relation which subsists between persons carrying on a business in common with a view of jarofit. (r) (1824), 1 Mood. C. C. 7. {x) Badeley v. ComoUdnted Bank (1888), is) R.v. CaiMeld (IH-H), 1 Mood. C. ^S CD. 338; Jie Whiteley (1892), 66 Q Y2 J \ >^ L T. (N. S.) 291; Davis v. Davis, \t) It. V. Rees (1836). 7 C. & P. 568. ^^^^^^ ' ^h. 393^ See Appendix B. to this chMpter. (.'/) (1878), 7 Ch. D. oil. And i,^e , X ,-.o^n\ o TT T n 11, 'o £ 11 1 Fawsey V . Arimtrotin {\'&ii\) , 18 Oh. D. (?<) (I860), 8 H. L. C. 2b8, followed ,,„„ •' j \ n in BullcH V. Sharp (18G5), L. R. 1 C. P. , ' „ , , , . ■, ^ . o 86 ; and Molluo, March ^ Co. v. Court of W Repealed and re-enacted by Oo & Wards (1872), L. R. 4 P. C. 419. •''•^ ^ict. c. 39, s. 2, 8ub-8. (3) (d). SERVANTS OR PARTNERS. 45 2. In determining- whether a partnership does or docs not exist, regard shall be had to the following rules : (1) Joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to any- thing so held or owned, whether the tenants or owners do or do not share any profits made by the iise thereof. (2) The sharing of gross returns does not of itself create a partnership. whether the persons sharing such returns have or have not a joint or common right or interest in any propei'ty from which or from the use of which the rctiirns arc derived. (3) The receipt by a person of a share of the i^rofits of a business is prima facie evidence that he is a partner in the business, but the receipt of such a share, or of a jjayment contingent on or varying with the profits of a business, does not of itself make him a partner in the business ; and in particular (a) The receipt by a person of a debt or other liquidated amount by instalments or otherwise out of the accruing profits of a business does not of itself make him a partner in the business or liable as such : (b) A contract for the remuneration of a servant or agent of a person engaged in a business by a share of the profits of the business does not of itself make the servant or agent a partner in the business or liable as such : (d) The advance of money by way of loan to a person engaged or about to engage in any business on a contract with that pei'son that the lender shall receive a rate of interest varying vdth the profits, or shall receive a share of the jn'ofits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business, or liable as such. 14. — (1) Every one who by words spoken or written or by conduct represents himself, or who knowingly suffers himself to be represented, as a partner in a particular firm, is liable as a partner to any one who has, on the faith of any such representation, given credit to the firm, whether the representation has or has not been made or communicated to the person so giving credit by or with the knowledge of the apparent partner making the representation or suffering it to be made. 46 HIRING AND SERVICE AND SIMILAR CONTRACTS. APPENDIX A. Distinction between Hervdut and Apprentice (p. 40). Servant. R. V. Little Bolton (1783), Cald. -'JBT R. V. Eccleston (1802), 2 East, 298 R. V. ShinfieldllSU), 14 East, 541 R. V. Bitrhach (1813), 1 M. & S. 370 R. V. BiUin!!on(1829), 9 B. & C. 888; R. v. EdinyaJe (1830), 19 B. & C. 739; R. V. Knntsford (1831), 1 B. & Ad. 726 ; R. V. Crediton (1831), 2 B. & Ad. 493 ; R. V. Newton (1834), 1 A. & E. 238; R. V. Wish ford {ISSo), 4 A. & E. 216; R. V. /(jhtham {ISm), 4 A. & E. 936. When the conti'act was not under seal and was not properlj^ stamped, but the manif(>st object was to teach, the Courts held that there was a defective contract of appren- ticeship. APPENDIX. 47 APPENDIX B. Ocaipatinn , tvhether ns tenant or not (p. 41 et f^qq.). Not Tenant. Tenant. Eyre v. SmaUpage (1750), 2 Bur. 1060. Plaintiff, controller of Chelsea College, and residing in the con- troller's apartments, which he occu- pied in virtue of his office. See also reference to the St. Bartliolomcio Case, p. 1061. R. V. Mathtujs (1777), Cald. 1. Keeper of a lodge in Windsor Park, and two acres of land, appointed by the ranger, rateable as ranger. " When a servant," said Mans- field, C.J. , "occupies a house and two acres of land, whether he pays for them by a rent or bj' service, it can make no difference as to his being rated, he is eqiially liable." This test is not now employed. Bide V. GrindaU (1786), 1 T. E. 338. The ranger of Eichmond Park, rateable as beneficial occupier of certain enclosed lands yielding profit to him. R. V. Melhridge (1787), 1 T. E. 598. Person employed as herd by several persons having a right of common and permitted by them to occupy a tenement of 10/. a year as a reward for his services ; settlement by occupation. R. V. Terrott (1803), 3 East, 506. A commanding officer having certain apartments allotted to him and his family in barracks for his residence, held to bo rateable to the poor. The ground of decision as put in Lord Ellenborough's Judgment is that the officer, imlike a private soldier, who had no accommodation beyond what was required for sleep- ing, eating, and the like, "had a degree of personal benefit, and ac- commodation from the property enjoyed by him, ultra the mere public use of the thing ; and which excess of personal benefit and ac- commodation iiJtr(( the public use may bo considered as so much of salary and emolument annexed to the office." R. V. Minster (1814), 3 M. & S. 276. A master found his bailiff, a servant in receipt of weekly wages, a house and pasturage for two cows on the R. V. St. Luke's Hospital (1760), 2 Bur. 1053. Servants of this charity not rateable because not occupying distinct apartments. R. V. Field (1794), 5 T. E. 587. Person employed at annual wages as superintendent of a philanthrojnc society with no distinct apartments in the house except a bed-room ; not occujnor of the house. The question before the Court was whether she was the occupier of the whole, but the reasoning was opposed to her being the occupier of any part. R. V. Tynemouth (1810), 12 East, 46. The occupation of a lighthouse by a servant placed there to look after the light in consideration of a salary, is the occupation of his master, who is rateable. Bertie v. Bea v mont {\SV2) , 16 East, 33. A servant from week to week put by his master into jiossession of a cottage divided into two parts, one occupied by the servant, the other occupied by Mrs. D., who paid rent. The servant paid no rent, but his wages were less by 5/. in the year on account of this cii'cumstance. R. V. Cheshunt (1818), 1 B. & Aid. 473. A labourer employed by the Board of Ordnance. He previously occupied a house at a rent of "il. The house was purchased by the Board. He continued to reside in part of the house at a weekly rent of 2s., which was deducted from his wages. No occupation as tenant. R. v. Bardwelt (1823), 2 B. & C. 161. Pauper hired for a j-ear as a shepherd. He was to receive a house and a garden rent free, 7s. as wages a week, and the going of thirtj^ sheep with his master's flock for the more convenient performance of the pauper's duties ; did not occujjy the house and garden as tenant. Bayley, J., took occasion to say that R. v. Minsttr was " open to much observa- tion." Hunt v. Cohon (1833), 3 Moore & Scott, 790. Servant, employed by Highgate Archway Comjiany to col- lect tolls. Ho lived in the toll-house. 48 HIRING AND SERVICE AND SIMILAR CONTRACTS. Tenant. master's land, not connected with tlie service or necessary for the con- venient i)orformance of it ; the ser- vant had a distinct interest in the pasturage of the two cows. Dot d. .\7t7((.// V. McKan) (18;3()), 10 B. & C. 721. Defendant, minister of a dissenting congregation. He was ])ut m possession of a chapel and dwelling-house by lessors, in whom the legal estate was vested in trust to permit the chapel to be used for the purpose of religious worship. Being a tenant at will after demand for possession, he was not entitled to a reasonable term for tlie purpose of removing his goods. " If the tenant," Lord Teuterden observed, " after the determination of his tenancy in this case, by a demand of possession, had entered on the promises for the sole purpose of removing his goods, and had continued there no longer than was necessary for that purpose, and did not exclude the landlord, perhaps he might not have been a trespasser." See Dim' d. Jones v. Jones (1830), 10 B. & C. 718, and Lake v. (JainphcU (1802), 5 L. T. (N. S.) 582. R. V. Wall Li/nn (1838), S A. & E. 379. 11.. a brewer, engaged L., as his clerk, at a yearly salary, and agreed to permit him to occupy a certain house as residence, free of rent, rates, and taxes. Another clerk was to be lodged in the same house. L. rateable ; Ij. being an " indepen- dent holder," and having absolute dominion, and the house not being the master's. R. V. Bishopton (1839), 9 A. & E. 824. Pauper resided in a cottage, rented by a millowner for families em])loyed in the mill. Some of the children of the former worked in it. The agi-eement was that 2s. a week should be deducted from the chil- dnm's wages as rent. The pauper worked as a husbandman. Held, that the relation of landlord and tenant existed. "There was," as Williams, J., observed, "a renting by one who was not servant." B. V. Bonsonhy (1841), 3 Q. B. 14. The occupiers of apartments in Hampton Court, who reside there witli their families and provide then- own furniture, rateable. JIiKjhes V, (Jhatham (1843), 5 Not Tenant. and one shilling a week was deducted from his wages by way of rent. The companj' having contracted to sell the land on which the cottage stood, dischargcnl the plaintiff from their employment and gave him notice to quit, to which he assented. Held, not a tenancy, and plaintiff could not maintain trespass for pulling down th(3 toll-house. At Nisi Prius, Tindal, C. J., ruled that there was a tenancy, and theCourt apjjcars tohaveassumed that there was a tenancy before the determination of service. Dohson V. Jo)ies (1844), 5 M. & G. 112. Surgeon in Greenwich Hos- pital, who was required to occuiiy rooms in the hospital; not entitled to vote as tenant. The Court ol)- served that " the relaticm of landlord and tenant could not be created by the appropriation of a particular honso to an officer or servant as his residence where sucli appro])riati()n was made with a view not to the re- muneration of the occupier, but to the interest of the employer, and to the more effectual performance of the service required from such officer or servant." Mayhtw \. Sidtl,' (1854), 4 E. & B. 347. Defendant, who was in posses- sion of a certain messiiage, where the sale of beer was carried on by one George Utting for defendant, agreed, in consideration of a bondsman be- coming answerable for the amount of 50/. in default of payment by the plaintiff, to let the plaintiff enter into the premises and carry on therein the trade for the defendant until tlui agreement should be determiiied by the notice mentioned in the agree- ment. The plaintiff was to carry on business " in the place and stead in the same manner and with the same privileges as G. Utting hath hereto- fore done." The agreement pro- ceeded, " whenever either of the said parties hereto shall be desirous of determining and putting an end to this agreement, he, the said E. May- hew, shall and will, on receiving from the said G. Suttle one month's previous notice in writing of such desire, and without being paid, or nnjuiring to be paid, any sum of money, &c., quit and deliver up to him, the said G. Suttle, the said trade APPENDIX. 49 Tenant. M. & G. 54. A master ropomaker occupied a house in a Qovernniout dockyard. He paid no rent for it, and held it as part remuneration for his services. No part of the house was iised for pul)lic j)urposes, and he had the exclusive control of it. The distinction to bo deduced from the settlement cases, Tindal, 0. J., took to be this : — If a servant is not jwr- mi'tted to occupy as a reward, in the performance of his master's contract to pay him, but required to occupy in the performance of his master's contract to serve his master, his occu- pation is that of his master. As nothing in the facts of the case showed that the master ropemaker was re- quired to occupy the house for the performance of his duties, or did occupy it in order to perform them, or that the occupation was conducive to that purpose more than any other house, held that the claimant occu- pied the house as tenant within 2 Will. IV. c. 45, s. 27. (iamhier v. Lydford (1854), 3 E. & B. 346. The governor of a prison rateable in respect of a coach- house and stabling within the pre- cincts of the prison to the extent to which the occupation was in excess of what was necessary for the per- formance of his duties. Outside the prison precincts were buildings occu- pied by the officers of the prison. None occupied more than was neces- sary for the discharge of their duties and the accommodation of their families ; the dwellings were assigned to the officers by the directors, and they had no discretion as to the houses and apartments assigned to them. Held, by Campbell, C. J., and Wightman, J., that the residences outside the walls were rateable. Coleridge, J., dissented as to the latter point. Ford v. Harimjton (1869), L. R. 5 C. P. 282. Canon of a cathedral chui-ch and one of the chapter occu- pied a house with which the chapter could not interfere, and which the canon repaired. Held, that he occu- pied as canon and a corporation sole and not as one of the chapter, and that he could vote in respect of it. Smith V. SeghiU (1875), L. R. 10 Q. B. 422. S., a collier, resided in Not Tenant. or business, and the full quiet and peaceable possession of all and every of the said premises." Notwithstan- ding the provisions with respect to determination by notice, the Court thought that no tenancy had been created, and that the occupation was ancillary to the carrying on of the trade for the defendant. aiarh V. Biirti Sf. p:d mmids {\Ho6), 1 C. B. N. S.' 23. Kocqier of the Guildhall at Bury St. Edmunds held to occupy house attached to it as servant because he was required to reside there for the performance of his duties. B. v. Tivert(m. (IHGl), 30 L.J. M. C. 79. A Wesleyan minister, who lived in a house taken by the stewards of the circuit within which he officiated, paid the rates and taxes ; but they were repaid by the stewards. It appeared to bo the practice of the stewards to take houses for the ministers. No settlement gained. According to Crompton, J., the minister was very much in the posi- tion of servant to the stewards. This case api^ears peculiar. (1) The mini- ster does not appear to have been required to reside in the house ; (2) it was not the hovise of the stewards ; (3) he actually paid the rent to the landlord. (See remarks of Willes, J., in the following case.) White V. Bai/lei/ (1861), 10 C. B. N. S. 227. Plaintiff appointed librarian and storekeeper on these terms, inter <(lin : that the person to be appointed should have premises, rent and taxes free, in a good situa- tion ; that 35?. per cent, should be allowed to the storekeeper on all books sold out of the shop, biit not on donations or subscriptions, he making such arrangements with booksellers, agents of the society, as the committees should from time to time detei-mine. To carry on a retail business in other New Church works and general literature for his own benefit. The society had purchased the lease, which was as.'^igned to trustees for it. Held, that no tenancy existed. In the view of Willes, J., "no tenancy in the pre- mises even to the extent of a tenancy at will ever did rest in the plaintiff." The agreement was one of service, M. 60 HIRING AND SERVICE AND SIMILAR CONTRACTS. Tenant. house belonging to his emploj'crs. He paid no rent ; ■was not entitled to notice to quit, and the occ\i])ati()n would cease when S.'a sei-rices closed. The house was one of several which his employers filled at their discre- tion. It was not absolutely essential for workmen to live in thos(> houses, though the owners jtrei'erred that the workmen should live near their work. An occupier within ;5'2 & ;i;j Vict. c. 41, s. 19. Martin v. ]V might do with his officer's permission. Not tenant within s. 8 of 30 & ;31 Vict. c. 102. Deid v. liohrrts (1877), 3 Ex. D. ()(). Police superintendent occupied house within boundaries of station. Compelled to live there to discharge duties. Sum for use of house de- ducted from salary. Held, not liable to income tax or inhabited liouse duty in respect of it. APPENDIX. 51 APPENDIX C. Partner or not Partner (p. 44). Partner. Grace v. Smith (1775), 2 W. Bl. 998. Wangh v. Carver (179;i), 2 II. Bl. 235. Two shipping agents agreed to rIuh'o in cf'rtain property, the profits of their respective commissions and discounts on tradesmen's hills ; held liable as partners to those with whom either cotitracted, though the agree- ment prescribed that neither should be answerable for the acts or losses of the other. Dry V. IJasweU (1808), 1 Camp. 329. Action by B. for "work and labour in regard to the repair of a lighter. Ellenborough, C. J., directed the jury, that if R., the sole owner, and B., agreed that the nett profits should be equally dirided among them, they were partners in the concern, so as to be liable to third parties; but not so, if the agreement were to give half the gross earnings, that being only a mode of paying wages of labour. Ex parte Hamper (1811), 17 Ves. 403. Gheai) v. Cramond (1821), 4 B. & Aid. 663. Merchants in London, who became bankrupt, recommended con- signments of goods to a house abroad. It was agreed that all commissions on the sales of goods recommended or " influenced " by the one house to the other should be equally divided without allowing a deduction for expenses ; the bankrupts were part- ners (jiuiad hoc with the Arm abroad. Heyhne v. Biirge (1850), 9 C. B. 431. A. and B. agreed "for services performed," to give to C, the defen- dants, one-fourth part of the clear profits arising from a contract for making a certain railway ; C. liable as a partner to third persons. (freeitham v. Gray (1855). 4 Ii'ish C. L. E. 501. Agreement between plaintiff and defendant to carry on the busiiiess of cotton spinners at defendant's mill. Plaintiff to have the full control and management of mill, and to give his whole time to it ; to direct all departments ; to have the exclusive powcn- ef dismiss- ing servants ; to bo ])aid for his Not Partner. Wilkinson Y. Frasier (1802), 4 Esp. 182. Action by seaman for wages; contended that he was a partner on the ground that the produce of the vo>'age was to be divided in certain proportions ; not a partner. Ilesketh V. UhoiclKtrd (1803), 4 East, 144. A. having neither I'eady- mr)ney nor credit, proposes to B., the ])laintiff, that if he will order along with A. certain goods to be shipped on a joint adventure, B. shall have half of any profit for his trouble. B. ordered the goods on their joint account and afterwards paid for them; no partnership between them, though B. as a partner was liable to third persons. R. V. Flartley (1807), E. & E. C. C. 139. Defendant employed to take coals from F.'s colliery and sell them ; to be paid for the labour by allowing him two-thirds of the differ- ence between the price at which ho sold them and the price charged at the colliery ; a servant and not a partner. Mair v. Glennie (1815), 4 M. & S. 240. Mair, owner of a ship, bound on a voyage to Havannah, with a cargo belonging to him. Young, the master of the ship, was party to an agreement with Mair that Young should have in lieu of all wages, primage, &c. , one-fifth share of the profit or loss of the intended voyage, and was to follow Mair's instructions. Geddes v. Wallace (1820), 2 Bligh, 270. The deed of copartnery of a certain company was subscribed by Geddes, who was to have one-sov(m- teenth share without advancing any capital. Article 3 stated that, "in the said capital stock the partners shall be interested in the profits or loss in the following proportions . . . the said John Geddes. one- seventeenth share." Bj' an agree- ment referred to in the articles of copartnery, he was to receive 1007. besides his seventeenth share of the pi'ofit or loss. The House of Lords, looking to the whole of the articles, and to the conduct of the parties, e2 52 HIKING AND SERVICE AND SIMILAR CONTRACTS. Pautner. management, &c. , 150/., and to re- ceive onc-fil'th part of the nett profits. Plaintiff and defendant partners. Re Whiteley ; Ex parte Smith (1892), 66 L. T. (N. S.) 291. W., who was insolvent, assigned all hi.s machinery, stock, &c. to B., who was his largest creditor ; B. to carry on the business under the name of W., receiving a weekly salary as manager ; B. to discharge out of the profits all W.'s existing and future liabilities; all profits to be placed to W.'s credit, and as soon as losses made up, B. to re-sell business to W. : B. becomes bankrupt. Held, B. and AV. were partners. Not Partner. decided that as between him and them, he was not a partner. Smith V. \Vat.s,m (1824), 2 B. et C. 401 . A., a merchant, bought whale- bone through B., a broker. It was agreed that, as remuneration for his trouble, B. should receive one- fourth of the profits arising from the sale, and bear an eighth ])roportion of the losses. Although H. might be liable to third persons, there was no partnership with A. Pott v. Ei/t(m (1846), .'J C. B. 32. Byton's name appeared over door of shop kept by Jonfis, and he received per-centage of profits ; goods ])ur- chased in Eyton's name ; no evidence of credit given to Eyton ; not a partner as to third persons. Rnwiinson v. Clarke (1846), 15 M. & W. 292. Plaintiff sold to de- fendant his business as a surgeon and apothecary. Plaintiff agreed to continue to reside at his place of business and to carry on the profes- sion as before for a year, and to introduce defendant to his patients. Defendant to allow plaintiff' during the year a moiety of the clear profits ; the deed did not create a partnership. Stocker v. Brockelhank (1851), 3 Mac. & O. 250. Agreement between plaintiff and defendant that the plaintiff would serve the said " partners " as " manager," and that the plaintiff should have the con- dTict and management of the busi- ness, and should receive for his services such a sum as would be equal to 40/. per cent, upon the nett profits ; no partnership existed. B. v. WoH/e)/ (1S51), 21 li. J. M. C. 44. Defendant entered into an agreement "to take charge of the glebe-land of the Rev. J. B. B. Clarke; his wife undertaking the dairy and poultry, &c., at 15.s. a-week, till Michaelmas, 1850, and afterwards at a salary of 25/. a year and a third of the clear annual profit, after all expenses of rent, rates, labour, interest tm capital, &c., are paid, on a fair valuation made from Michaelmas to Michaelmas. Three months' notice on either side to be given, at the expiration of which time the cottage to be vacated by Wortley " ; defendant and his master not partners ?«/er se. APPENDIX. 53 Pahtneh. Not Paktnek. Andrews v. Fnyh (1854), 24 L. J. Ch. 58. Plaintiff emploj'ed the defondant to obtain orders for him, the plaintiff allowing to the defendant a commis.sion of 15 per cent, on the gross amount of profits. The defen- dant carried on the business with the plaintiff, but his name was not joined with that of the plaintiff ; no partnership infer sr. Cox V. Hickman (1860), 8 H. of L. 267. S. and S., having become em- barrassed, assigned their property to trustees, and empowered them to carry on the business, and to di- vide the income rateably among the creditors. Held, no partner-ship created so as to make creditors liable to thii'd parties. B. V. Macdonahl (1861), 81 L. J. M. C. 67. Cashier and collector of a firm, received in addition to fixed salary a certain percentage on profits ; was not liable to losses, and had no control over business ; a servant. Ross v. Parl-yns (1875), L. E. 20 Eq. 331. Agreement between plain- tiff and defendant to carry on under- writing business in the name of defendant ; all policies, losses, and averages to be signed and settled by defendant, or by the plaintiff as his agent. Plaintiff to be paid or allowed a salary or sum of 150/. per annum, and one-fifth of the profits ; plaintiff' to keep the books of accounts, he obtaining such assistance from time to time as he may find necessary, subject to the approval of the defen- dant ; plaintiff not to bear any loss ; contract one of hiring and sei-vice and not of partnership. See also Btdlen v. Sharp (1865), L. R. 1 C. P. 86; Mollwo v. Court of Wards (1872), L. R. 4 P. C. 419; Duddey v. Consolidated Bank (1888), 38 Ch. D. 238; Davis v. Davis, [1894] 1 Ch. 393. 54 HIRING AND SERVICE AND SIMILAR CONTRACTS. APPENDIX D. Possession hy Servant (jx 34). The subject of pussessiou by servants lias been the cause of much con- fusion and ijcrpk'xity in criminal law. It may bo expedient to give the o\it- lines of the history and j^-rowth of the law. ]']uj:^lish lawyers had given defiiiitious of larceny which implied wrongful gaining jHJSScssiuti of chattels; and the history of the matter is the history of a long attempt to roconcile this with the necessities of society. Jiracton's definition (iii. c. 32), which is almost identical with that found in the Institutes (iv. 1), makes the offence turn on the intent — contnictatio rei alienee fraudulcnta cavi (inimo fiirandi. But it came to be understood that trespass, or wrongful interference with possession, was essential to felony. To Glanyillo (lib. x. c. 1.3) the (piestion had ])resented itself, whether a bailee could be guilty of larceny. His deci- sion is a furto enini vuvnimodo excusntttr per hoc quad iniliinn hahnerit suw dttentionis per dvminum illius rei. In the reign of Edward IV. the Courts had to consider whether goods which had been bailed could bo stolen by a bailee. It was decided by all the judges of the Exchequer Chambei', except Needham, that the bailee could not bo indicted for larcc^ny : 13 Edw. IV. 9. lie had, they said, " loyal ])ossession of the goods, and had not taken them ri et annis.''^ The judges, however, decided that it was felony for a i)orson who had a mere special use of au article — e.g., of a piece of plate laid before him at a tavern — to convert it to his own use. By a legal fiction the posses- sion was said, in the case of a bare charge, as distinguished from a general bailment, to be in the owner. (Russell, ii. 135; Hawk. P. C, I. c. 19, § 6.) When the Courts came to deal with similar offences committed by .servants, which were jn'obably in these days a common form of larceny, they resorted to fictions and refinements. In the Year Books (3 Hen. VII. 12, and 21 Hen. VII. 15) the question is discussed whether a servant who made away with his master's sheep, might be indicted for larceny. The difficulty with respect to ])Ossession was surmounted by declaring that a servant had none ; though some of the authorities apjjcar to confine this to the case of servants residing in their master's house. The custody of a servant is never deemed poss( ^ssion in the case of land ; and this seems to be the rule in regard to goods, excejjt in one case, viz., when he receives thom from a third person, in which case he possesses them as a bailee, until he appi-opriates them to his master. (Pollock and Wright on Possession in the dominan Law, p. 60.) 1. A fresh difficulty, however, arose. A servant may be virtually a bailee ; you may give him your jewels to keej) for you; you may send him with cattle to market to sell. If he makes away with these, can ho be convicted of larceny? The Courts w^ere embarrassed by their former decisions with respect to bailcH's ; and servants appear to have stolen with im})unity articles put into theu' charge. The 21 Hen. VIII. c. 7, was in consequence passed. This statute uiado it felony for servants to steal or convert to their own use contrary to the trust and confidence reposed in them, any caskets, j(!wels, money, goods, or other chattels delivered to them for safe keeping. The remedy proved incomplete. By judicial construction the statute was confined to cases in which goods had been delivered for safe keejiing. To prove larceny it was necessary to prove trespass (Hawkins, P. C, I. c. 19, § 1), and this could sometimes not be done even with the exercise of the utmost subtlety. Ere(j^uent miscarriages of justice w^ere the result. Thus, a weaver, to whom yarn had been delivered to be worked up at his house, (ioiild not be indicted for larceny, if he misappropriated the material. (RtissoU on Crimes, ii. 134.) The Legislature passed a series of statutes specially dealing with APPENDIX. 55 such oH'oiicos. Servants who iiiiulo away with ehattoLs given to them on behalf of their masters were, as a rule, not punishable. Yet acting upon puzzling refinements, the criminal law punished a servant who had "determined his original, lawful, and exclusive possession." In consequence of a startling decision that a banker's clerk who had appropriated to his own use notes paid across the counter to a customer's account could not be punished, the 39 Geo. III. c. 85 was passed, and it ■was made theft for a sc^rvant or clerk to embezzle money or goods received or taken into possession, "for or in the name, or on the account of his master." The cases on this subject, which involve many subtle distinctions, wiU be found in Eussell on Crimes, vol. ii. The present law on the subject is contained in 24 & 25 Vict. c. 96. The 67th section provides that : — Whosoever, being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or nervaut, shall steal any chattel, money, or valuable security belonM at the time, could not enter into It. v. Winchcomb (1780), 1 Doug. 391; a legal contract ; and that the service in li. v. Taunton {Xi'l'd), 9 B. & C. 831; the Navy did not discharge the indenture. R. v. St. John {\82d), 9 B. & C. 89G ; As to difference between contract with li. v. Elntley Cuatle (1832), 3 B. & Ad. soldier and one with infant, li. v. Chil- 826; li. v. St. Manj-at-the 7/7^«(l,S34), IcKford (182.0), 4 B. & C. 94, 100. 5 B. & Ad. 1023 ; li. v. mtnr.s/uiiii {<;) li. v. BcuuUcu (1814), 3 M. & S. (1835), 2 A. k E. 648 (case of a member 229. A soldier, though not "lawfully of a Volunteer corps under 44 Geo. III. hired " within the moaning of the c. 54). statute, could have recovered wages for hia services. The Court refused to find (/) ^ee Chap. II., xupra. INFANTS AND YOUNG PERSONS. 59 any agreenieut whereby Jiiiy seaman is declared to incui- any forfeiture, or be exposed to any loss in case he enters into his Majesty's naval service shall be void, and every master or owner who causes any such stipulation to be so introduced shall incui- a penalty not exceeding 20/." (A.) — Infants and Young- Persons. Ooiitmcts of liirino- and service by infants — tliat is, by persuiis who have not attained the ag-e of twenty-one — are binding on them, provided they are not proved to be to the prejudice of the infants [g). On coming of age an infant might, at Common Law, ratify a promise previously made by him so as to render it binding. The Legislature, however, has greatly limited the power of ratifi- cation. The Infants' Relief Act of 187-1 (87 & 88 Yict. c. G2) enacts (s. 1) that — All contracts, whether by specialty or by siiiii)le contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void ; provided always that this enactment shall not invalidate any contract into which any infant may, by any existing or future statute, or by the rules of Common Law or Equity, enter, excejjt such as now by law are voidable. Section 2, which is of most consequence in this connection, says : — No action shall be brought whereby to charge any jierson upon any promise made after full age to pay any debt contracted during infancy, or u\)on any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age. It was decided in Coxhead v. 3[iillis (//) — an action for breach of {(/) Coke ou Litt. 7S b. amount to a ratification of a contract [h) (1878), 3 C. P. D. lUO ; hce by an infant, see Cornwall v. Hawkins also Nurthvotr V. Dut((//it!/ {1879), L. R. (1872), 41 L. J. Ch. -135; infant en- 4 C. P. D. 38o ; Ex parte Kihblr (ISiry). tcred into service of milk-seller, and L. E,. 10 Ch. 373. As to what will covcuantod not to carry ou bame trade ■ 60 PARTIES IX) THE CONTRACT. promise of mamage — that the soeoud soetion docs uot exchisively apply to such contracts as are mentioned or referred to in the first section ; the section, therefore, extends to contracts of hiring and service. The question generally is whether, notwithstanding the statute, there has been a new contract (/). The chief exception at Common Law to the principle, that infants' contracts do not bind them, was in the case of contracts for necessaries, which include, according to Coke's explanation, " necessary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for good teaching or instruction whereby he (the infant) may profit himself afterwards " (/.), and which need not exclude many articles popularly known as luxuries. It is now settled that an infant will also be boimd by contracts which are to his benefit or advantage (/) ; and it is for the Court, looking at the entire contract, to determine whether it is of this character or not. Contracts of hiiing and service and apprenticeship are regarded as prima /((cic for the benefit of infants (/>/), and are, therefore, j>r/u/d facie binding on them. It is for the Court .... to dotoruiiue .... whether the contract ia for the benefit of the infant ; and if the Court should be of opinion that the agreement as a whole is not for his benefit .... then the Coui't says it is not binding on him (»). and, after coming of age, he contiuucid sary for a chemist's apothecary, who in the same service for eighteen mouths was ordered by doctor to tnke riding without repudiating his promise. Held, exercise). As Kelly, C. B., pointed out that this amounted to ratification. In in Ryder v. Wonibwell (1SG8), L. R. 3 Birk'm v. Forth (187o), 33 L. T. 532, it Ex. 90 (jewelled solitaires and a silver was held that a minor, who agreed on goblet necessaries for a baronet's son), the nth Dec 1871, to serve for five " necessaries " cannot be separated from years as a warehouseman, and who " its legal adjunct, suitable to the estate having attained the age of 21 in April, and condition of the infant." See 1873, continued in the service of his JFa/tcr v. Evcrard, [1891] 2 Q. B. 3(J9. employers, did not i-atify his agreement {I) "And an infant shall be bouuden by writing on tlie 17th of Jan., 1874, a by all acts done by him during his letter saying that he would give up his nonage, which acts are for Ins advantage, situation in twenty-eight days. Prob- if not in some special cases ; and, there- ably the decision turned more on the fore, if an infant at the years of discrc- fact that the Court relied on Ilarmer v. tion make a bond for his necessary meats KiU'ing (1804), h Esp. 102, which shows and drink, or for his necessary apparel, that a promise to bind as a ratification or for his schooling, he shall not avoid must be given voluntarily by a minor, the same." P(!rkins, C. I. S. 14. and with fuU knowledge that he was {m) PoUock on Cuntructs, p. 67, 7th released. ed. See Young v. Hojfmnnn, [1907] 2 (i) Brown v. Harper (1893), 68 L. T. K. B. 646, per Cozens-Hardy, M. R., at 488. P- 650, and per Gorell Barnes, P., at {k) Coke Litt. 172 a. See Lord p. 654. Mansfield's judgment in Zouch v. Far.son.s (m) Per A. L. Smith, L. J., in Clements (1765), 3 Bur. 1801 ; Bacon's Abridg. v. L. ($• N. JF. Rail. Co., [1894] 2 Q. B. " Infancy," I., 3, 360 ; Skrinew. Gordon at p. 495, approving De Francesco v. (1875), 9 Ir. C. L. 479; Ifill v. Arbon Barman (1890), 45 Ch. D. 430. And (1876), 34 L. T. 125; Hart v. Frater see Flower v. L. cf- N. W. Rail. Co., (1837), 1 Jur. 623 (riding-horse a neces- [1894] 2 Q. B. 65. See next note. INFANTS AND Y01IN(; I'EltSONS. HI An infant who lias bonnd liiinself as apprentice to one master cannot before the expiration of the period of his service transfer his services to another (o). But if a contract of apprenticeship or hiring and service between a minor and a person of full age be inequitable and prejudicial to tlie former it will not bind him (;>). Thus a contract of hiring and service which subjects an infant to a penalty or forfeiture, or wliicli requires him to serve without making the master liable for wages, will not be binding (•) Walter v. Everard, [1891] 2 Q. B. 369. 62 PARTIES TO THE CONTRACT. There is no reason v.hy an infant should not be a master (.s). An infant may enter into a contract of hiring and service with liis father or mother (t). A father cannot bind his son apprentice without his consent, and the son must execute the indenture {n) ; and it has been usual to make the father or a friend of the infant a party to the deed. Parish apprentices were, in i-irtue of a special statute, exceptions to this rule (x). Apparently, an apprentice cannot be bound under seven years of age {//) ; in special cases the age is regulated by statute (s) ; if the statute be contravened the binding is void {a). A contract of apprenticeship is not invalid because it is made with a corporation (/>). An infant wlio is apprenticed cannot be sued upon the covenants in an indenture of apprenticeship, except by the custom of London (f), nor could the minor be sued at equity (f/). But a master can recover upon a covenant from an apprentice the balance of a premium which in his indenture, made dming infancy, the apprentice has covenanted to pay, on the groimd that education is a necessary {o) : and an infant is liable to suit and injunction upon the covenants in a contract of service which is beneficial to him (./'). (s) Hands v. Slaney (1800), 8 T. R. 578 ; Chapphv. Cooper (184-1), 13 M. & W. ■2;)2, 208, wliere Alderson, B., held that iu certain ciicumstance.s a servant would be a necessarv foi- an infant ; R. v. St. P>:trox (1791), 4 T. R. 196. (0 R. V. ahillesford{\^-lh), 4 B. & C. 94 [u) Rex V. Arnrsbi, (1820), 3 B. & A. 584 ; Rex v. Ripon (1808), 9 East, 295 (an adult apprentice). See Austin on Apprentices, 81. (x) R. V. Cromford (1806), 8 East. 25 ; R. V. Ripon (1808), 9 East, 295; St. Nicholas V. St. Botolph (1862), 31 L. J. M. C. 258. Compulsory apprenticeship abolished, 7 & 8 Vict, c." 101. s. 13. An infant may have his name affixed to the indenture by an ajrent : R. v. Longnor (1833), 4 B. & Ad. 647. (;y) R. V. Saltern (1784), 1 Bott. 613. (z) Parish apprentices and chimney sweeps : 3 & 4 Vict. c. 85, 8. 3. (a) R.\.IIipsiven[\m^),^B. &C.466. {b) Burnley Equitable Co-operative, ^c. Society V. Casson, [1891] 1 Q. B. 75. (e) Bacon\s Abridg., "Infancy," A, 340; Gylbert v. Fletcher, Cro. Car. 179; Jennings v. Pittnan (19 Jac), Hutton, 63; Li/lh/s Case (1 Anne), 7 Mod. 16; Stanton's Case (25 Eliz.), Moore, 135; Horn V. Chandler (1670), 1 Mod. 271 ; nor will the Coiirts enforce the negative clauses in an apprenticeship deed against the apprentice bv injuncTion : !>'■ Fran- cesco v. liarnum (1889), 43 Ch. T>. 165. The custom of London, which was instituted for the promotion of trade, is stated iu various wavs Thus, in Burton V. Palmer (11 James I.), 2 Buls. 191, " An infant within the age of fourteen years ; " in Walker v. Nicholson, Cro. Eliz. 652, " Any infant above the age of twelve years;" iu Code v. Holmes (21 James I.), Palmer, 361, a person bound at fourteen, if the indenture be enrolled at Guildhall ; in Hall v. Chandler i^ll Chas. II.), 1 Mod. 271, " Anyperson above fourteen years, and under twenty- one, and unmarried ; " so in Eden's Case (1813), 2 M. & S. 226 (a return held defective because it failed to st-ate that an apprentice was between the age of fourteen and twenty-one). By the cus- tom of London apprentices might be assigned. Vincr's Abridg., "Appren- tices," F. It is .stated by Holt, C. J., in Winton v. Wilkes (4 Anne), 1 Salk. 204, that no other cities than London have such custom. See, however, T. Smith's English Guilds, 209. The custom does not extend to apprentices to watermen : Barber v. Dennis (2 Anne), Mod. 69. By act of Common Council, March 14, 1889, the term for which the apprentice must serve was reduced from seven to four years. {d) 1 Eq, C. Abridg. 6. [e) Walter v. Everard, [1891] 2 Q. B. 369. (/) Fellows V. Wood (1888), 59 L. T. INFANTS AND YOUNG PERSONS, 63 But apprentices have bceu alwaj's liable to certain statutory regu- lations {(/), and the Employers and Workmen Act, 1875, states the procedure applicable to most classes of apprentices (//). It is stated by Blackstone that a father may " have the benefit of his children's labour while they live with him, and are main- tained by him ; but this is no more than he is entitled to from his apprentices or servants" (/). The authorities in English reports and text-books on this subject are few (/,•). Blackstone cites none in support of his <{icfinii, thouy-h probably it is correct. According to a series of decisions in the American Courts, the right to recover for the services of a minor is presumed to belong to the father, and 5i;J; FA'ans v. Ware, [1892] A Ch. 502. And see Cormvall v. Hawkins (1872), 41 L. J. Ch. 435 (where tliere was evidence of ratification after majority), aud the remark.s of Chitty, J., in De Franrtsco v. liarmim (1889), 43 Ch. D. at pp. 172, 174. (r/) Ex parte Davis (1794), o T. R. 715, decides that an infant, on coming of age, may disatHrm a contract of apprentice- ship. This case is said in Kx parti- Gill (1806), 7 East, 376, to have been mis- reported. It was, however, affirm(>d in Wray v. Wrst (KSfiiJ), 15 L. T. 180, where it was laid down that an infant must disaffirm his indentures witliin a reasonable time after coming of age. In Moore v. Smith (1875), 39 J. P. 772, the Court of Queen's Bench was asked to say whether this rule was altered by the Master and Servant Act, lfSG7 ; and decided that it was not. Notluug in the Employers and Work- men Act, 1875, api)areutly, affects the decision. It was early decided that an infant, though not liable to an action on the covenant of an indenture, was sub- ject to the statutory regulations affect- ing apprentices ; that is, to the 5 YXv/.. c. 4. The contract of apprentieesliip was treated as voidable. 1{. v. St. Nieholan, Bur. So. 91. Wnat more uu- (•(jui vocal way of avoiding such a con- tract than for an apprentice to run awa}' frcan his master? Yet in It. v. Evtrcd, 1() East, 27, and Gray v. Cookxon. (1812), Hi East, 13, this was held not to be an effi.acnt election so as to avoid inden- tures, and prevent the justices piniish- ing runaway apprentices under 20 Geo. II. c. 19, s. 4. The Courts were careful not to say that, ?h sodv uai/, an infant might not during infancy disaffirm a contract of apprenticeship. Gray v. Cookson, 16 East, p. 28 ; R. v. Hindring- ham (1796), 6 T. R. 558, and in such a manner as to make it wholly inoperative. The decision in Ex parte Davia, nbi sap., was not based on any statutes affecting apprentices, and was, no doubt, intended t(j lay down a principle of Common Law. But is the implication that an infant cannot disaffirm before coming of age correct ? The cases seem to go no further than this — that an infant may disaffirm while under age, if it be for his advantage to do so. See Austin on Apprentices, p. 48. And see It. v. Monntsorrel (1815), 3 M. & S. 497 ; It. v. Great Jl'tgston (1824), 3 B. & C. 484, wliere Abbott, C. J., gives the reason that any other principle would involve a contradiction of the legal presumption tliat contracts of apprenticeship are beneficial to the infant. See Bacon's Abridg. " Infancy," 1,2,3, and 5 ; Neicry, >.S-e. Rail. Co. v. ( :ooin lie {[8i9), 3 Kx. 565, per Parke, B.. at p. 575; London ^■ li or th- Western Rail. Go. v. McMichnel (1850), 5 Ex. 114; Dublin and JFieklow Rail. Co. v. Black (1852), 8 Ex. 181. (A) See sect. 12. (() 1 Com. 453. It is sometimes stated that the relation of father and cliild is like that of master and servant {American and English Encyclop/vdia of Lair, vol. 14, 755). Apart from ihe Poor Laws, there is no obligation on th(> part of a father to maintain his child : .llortimore v. Wricfht, 6 M. & VV. 482 ; Baziley v. Forder (1868), L. R. 3 Q. B. at p. 565 ; Cooper v. .Uarfin {IHO'A), 4 East, 76. [k) The chief authority on the subject of the right of a father to a child's earn- ings is Ex parte Jfaeklin (1755), 2 Ves. Sen. 675. (Father received child's Kiruings while living with him. He became bankrupt ; the child sought to prove for amount received from her. Ilardwicke, C, referred to the Commis- sioners to iuijuire l>ow mucih had bocji received to tlie child's use.) 64 PARTIES TO THE CONTRACT. he is entitled to the earnings of liis ehiUh-en unless he has forfeited the right by misconduct or has expressly or by implication emanci- pated them (/). Accordingly payment of wages to a minor has been held to be no answer to an action by a father against an employer. " In consideration of this obligation on the part of the father to maintain his children," says Story, stating the effect of the American decisions, " the law gives him a right to all their earnings, and in case of his death the mother has the right" {/>/). This has been extended to adopted and illegitimate children. It is admitted in the American decisions (n) , and presumably the same would hold good in the courts of this country, that the right does not exist where the father does not maintain his children or fulfil his duties as a father. The English authorities clearly show that emancipation will not be inferred merely from the fact that the son resides apart from his father and is in the service of another person {oj. Thus, a son who left his father's house in Selborne, with his father's consent, and went to live in London, and entered the Metropolitan Police, was regarded as not emancipated. It is otherwise if a son enlists as a soldier and has no power to terminate his service ( ;;) . The marriage of an apprentice without the master's consent does not dissolve the indentures. The master's remedy, if any, is on the covenants {q). Jurisdiction over apprentices is given to Courts of Summary Jurisdiction by the Employers and Workmen Act, 1875 [see sects. 5 — 10, and 12] (/•). For the procedure in these cases see the Summary Jurisdiction Eules, 1.S86, and the Employers and Woi'kmen liules, 1880. There is a right of appeal to Quarter Sessions. There is also jurisdiction over apprentices in the City of London possessed by the City Chamberlain's Court and the Mayor's Court. Auothcr tinio-honourod and important duty of tlic Clianibeiiain is the exercise of his jurisdiction over City apprentices. He holds a Court, which (I) Wood on Master and Scrvwnty p. 22. time." (w) Contracts, sect. 142. (o) It. v. Selborne (1859), 2 E. & E. {«) Wliieh are more explicit than 275; R. v. St. Peter'' s (1769), Bur. So. ours, and are collected in tlie American 638. and Enr/lish Enojclojucdia of Lmv, (;;) Ji. v. Eoach (1795), 6 T. R. 247. vol. 14, 756; where it is stated that (7) Auiitm on ylpprentices, -p. GG. "a father may emancipate his child by (/) See this Act at p. 611, infra. By refusing him support, or denyiniir him a sect. 10, sub-s. (1), jurisdiction is given house, or compelling him to labour for to the Lord Mayor's Police Courts at Ids own living, as well as by selliug his the Guildhall and Mansion House. INFANTS AND YOUNG PERSONS. 65 existed in the reign of Edward VT., for hearing and determining differences and disputes between them and tlifir masters, and also complaints on the part of the masters themselves. Tlio Court is at the present time constituted of the Chamberlain and the Comptroller of the Chamber (who is also Vice- Chamberlain) as judges. It is open all the year round except during the month of August. Summonses are gianted on payment of a fee of Is. ; and counsel and solicitors may represent the parties as their "friends." An appeal lies to the Mayor's Court, when the case may be tried before the Eecorder of London and a jury. Accoixling to ancient custom an unruly apprentice may be committed to Bridewell for a period not exceeding three months (usually seven or fourteen days) (s). By sect. OG of the County Courts Act, 1888, it is provided : — It shall bo lawful for any person under the age of twenty-one years to pi'osecute any action in the Court for any sum of money not greater than one hundred (3 Edw. VII. c. 42, s. 3) pounds which may be due to him for wages or piece-work, or for w'ork as a servant, in the same manner as if he wore of full age. Several Acts of Parliament have imposed restrictions on the employment of children and " young- persons," e.g. : — Agricultural Gangs Act, 1867 (80 & 31 Vict. c. 130). Metalliferous Mines Regulation Act, 1872 (35 & 36 Vict. c. 77). Coal Mines Regulation Act, 1887 (50 & 51 Vict. c. 58). Mines (Prohibition of Child Labour Underground) Act, 1900 (63 & 64 Vict. c. 21). Children's Dangerous Performances Act, 1879 (42 & 43 Vict. c. 34). Shop Hours Act, 1892 (55 & 56 Vict. c. 62). Factory and Workshop Act, 1901 (1 Edw. VII. c. 22). Employment of Children Act, 1903 (3 Edw. VII. c. 45). Prevention of Cruelty to Children Act, 1904 (4 Edw. VII. c. 15). Elementary Education Acts. These provisions are printed in Part II. of this book. (,-!) City and County of London Amal- of Gorporatim, p. 109. See Austin on gamation Commission, 1893; Statement Apprentices, t^^. 110 — 112. M. 66 PARTIES TO THE CONTRACT. (B.) — Married Women. A married woman could not at Common Law enter into a contract of liiring and service wlii(;li would bind her(i!^); but she may now enter into such a contract so as to bind her separate estate [ u). At Common Liiw sueli ,i contract was " altogether void," no action l3dng against lier husband or herself for the breach of it. So an indenture purporting to bind an apprentice to a married woman was of no effect (./■) ; she could not bind herself to perform the covenants ; but since the Married Women's Property Act, 1882, that disability has ceased to exist. The strictness of the rule is best seen by referring to Offloy v. CJai/ {//), wliich was an action for work done by tlie wife of the j)laintiff for the defendants at their request. Plea of payment to the wife in full satisfaction and discharge of the cause of action ; hekl bad on donmrrer, as it did not aver tliat tlie wife was authorised to receive. Notwith- standing the passing of the Married Women's Property Act of 1870, which allowed a married woman to sue for her earnings in certain cases, it was held that she could not, without the consent of her husband, enter into a contract of service within the meaning of the Master and Servant Act, 1867 (80 & 31 Vict. c. 141) (;:). As the agent of her husband, a wife may contract obligations which will bind him. Tlie question of authority is one of fact to be determined either by evidence of express authority or by circumstances showing implied authority (ri). If that authority exist it will be derived not from the contract of marriage, but from the acts or words of the husband, or the circumstances or conduct of the parties. When a liusband and wife live togc^tlier, it may be said that there is a presumption that she has power to order or hire necessaries on behalf of her husband ; for example, to liire a servant suited to lier station in life. This presumption, (t) It is almost unnecessary to cite (.r) li. v. GuUdford (1818), 2 Chitty, authorities for this elementary pro- 2S4. position. But sec /?u/yooat V. 7r«y(1778), (y) (1840), 2 M. & G. 172. 2 W. Bl. 12:36; Manhall v. liutton i \ m i ■ nr j/it)-c\ oit m /io/.A\ Q rr Ti .-(r. . I 1 , m ■ (-) Jotn/cmsou V. Ivest (IH I o), 32 Li. 1. (1800), 8 i. K. 045 Lambert V. Atkins ...X' „ it- ^> /.u-A tn • » /ionn\ .> n OT.) 7 t I I I L 462; Hoa/euison v. urecn (I8/0), Davis s (1809), 2 Camp. 272; Liverpool Adrlnhi j , , ,.„ .,,, ^ d r,i^ V ' \ ■ .■ V. ■ 1 . /ior<\ n J.uhour Laws, 119 39 J. r. 600. Loan Association v. rairhurst (18o4), 9 ' Ex. 422. («) Notes to Manhy v. Scott, 2 Smith, [u) See 45 & 46 Vict. c. 75, s. 1. L. C, 11th ed. 446. " MARRIED WOMEN. 6/ however, is not irrebuttable ; it is destroyed by sliowing that the authorit}^ did not in fact exist, or that it was withdrawn. The late Lord Selborne thus states the true principle (h) : — The first question .... is, whether the mere fact of marriage implies a mandate by law makinj? the wife .... the agent in law of her husband, to bind him, and to pledge his credit, by what otherwise would have been her own contract, if she had been a feme sole According to all the authorities there is no such mandate in law from the fact of marriage only, except in the pai-ticular case of necessity, a necessity which may arise, when the husband has deserted the wife, or has by his conduct compelled her to live apart from him, without properly providing for her, — but not when the husband and wife are living together, and when the wife is properly main- tained. ... I pass to the next question : whether the law implies a mandate to the wife from the fact, not of marriage, but of cohabitation ? .... There are, no doubt, various authorities, which show that the ordinary state of cohabitation between husband and wife does carry with it some presumption, some prima facie evidence, of an authority to do those things, which, in such ordinary circiimstances of cohabitation, it is usual for a wife to do ; . . . . because, in that state of circumstances, the husband may be truly said to do acts, or habitually to consent to acts, which hold the wife out as his agent for certain purposes. . . . But when there has been nothing done, nothing consented to, by the husband to justify the proposition that he has ever held out the wife as his agent, I apprehend that the question whether, as a matter of fact, he has given the wife authority, must be examined on the whole circumstances of the case. No doubt, though not intending to hold her out as his agent, and though she may not actually have had authority, the husband may have so conducted himself as to entitle a tradesman dealing with her to rely upon some appearance of authority for which the husband ought to be held responsible. If he has so acted he may be bound, but the question must he examined as one of fact not a presumi)tion of law, but one capable of being rebutted. If a wife were permitted by her husband to carry on a trade or business, she would be regarded as having authority to enter into all contracts, including those of hiring and service, necessary for the conduct of the business (c). (b) Debenham v. Melloii (18S0), 6 A. C. and JVhite v. Cutiler (1795), 6 T. R. 176 ; ■24, at pp. 31, 32. In this case it was 1 Esp. 200. The head note in the T. R., heid that a husband cohabitiii-r with his " if a feme covert without any authority wife who is able and williuf; to supply from her husband contract with a servant his wife with necessaries, and who has by deed, the serv^int liaving performed forbidden her to pledge his (credit is not the service stipuhited may maiutam liable for necessaries ordered by her, assumpsit against the husband," is mis- eveu when the tradesman who supplied leading. It appears iu the report of them had no knowledge of the prohibi- Espinasse that the deed was used as tion: Johnston v. Sumner (1858), 3 evidence of a contract which the mfe H. & N. 261 ; Morel v. Westmoreland, would be authorised to make. See [1904] A. C. 11. Necessaries would Lush's Husband and TFife (2nd ed.), include hiring servants reasonably fit for pp. 392, 393. ax t t> herdeo-ree. Blackhuia, J., in Bazcki/ v. (c) Pfiilltpson v. Hai/ter (18 iO), Li. R. Fordei^(\8&8), L. R. 3 Q. B. 559, 663 ; 6 C. P. 38. As to the custom of London f2 68 PARTIES TO THK CONTRACT. Equity early recognised a wife's right to deal freely with her separate estate as if she were unmarried, and she might no doubt hire servants so as to bind it. Legislation has much extended the power of married women in regard to service and earnings. By the Divorce Acts, 1857 (20 & 21 Vict. c. 85) and 1858 (2 1 & 22 Vict. c. 108), a wife, who, having been deserted by her husband (d), has obtained a protection order under the principal Act, or who is judicially separated from her husband, possesses nearly the same rig] its of projierty, and occupies much the same position in respect of contract and tort, as a married woman under the 4-> & 46 Vict. c. 75 {('). It is necessary to refer here also to tlie Married Women's Property Act of 1870 (o.3 & 84 Vict. c. 913) and the Amendment Act of 1874 (87 & 88 Vict. e. 50). The Act of 1870 (sect. 1) was to this effect : — The wages and earnings of any married woman acquired or gained by her after the passing of this Act in any employment, occupation, or trade in which she is engaged, or which she carries on separately from her husband, and also any money or property so acquired by her through the exercise of any literary, artistic, or scientific skill, and all investments of such wages, earnings, money, or property, shall be deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be married, and her receipt'^ alone shall be a good discharge for such wages, earnings, money and property. Both of the above Acts are, saving their application in certain cases, repealed by the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 22. This last- mentioned Act provides as follows :— 1. (1.) A married wfunan shall, in accordance with the provisions of this Act, be capable of acquiring, holding and disposing bj^ will or otherwise, of any real or personal property as her separate projjorty, in the same manner as if she were a feme sole, without the intervention of any trustee. (2.) A married woman shall be cajiable of entering into and rendering herself liable in respect of and to the extent of her separate property on any by which a married woman trading on 05. See also Tratmanv. Yciitma)/ {186S), her own account may be charged as a L. R. 1 P. «& D. 489. feme sole on contracts concerning her business, see Lavie v. I'Aillips (1765), '.i (r) The limitation to property acquired Bur. 1776. "by lawful industry" (see Muson v. {cl) Absence of a husband in his Jlifc/iell (1865), 84 li. J. Ex. 68) is ordinary occupation is not desertion, i'.i- omitted in the Act of 1882. The pro- parle Aldrid(/c {I8b8), 1 S. & T. 88. The perty, in cases of the wife's intestacy, wife must not be a consenting party to devolves differently under the Act of the cessation of cohabitation, Thompson 1857 and that of 1882. See Lush's V. Thompson (1858), 27 L. J. P. k M. Uushaud and ^Fi/l- (2nd ed.), p. 123. MAKKIED WOMEN. 69 contract, and of suing and being sued, either in contract or in tort, or other- wise, in all rosi^octs as if she were a fvine solcy and her husband need not be joined with her as jdaintilf or defendant, or be made a party to any action or other legal proceeding brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate pi'opei'ty ; and any damages or costs recovered against her in any such action or proceeding shall be j^ayablo out of her separate property, and not otherwise. (5.) Every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if she were a fame sole. 2. Every woman who marries after the commencement of this Act shall bo entitled to have and to hold as her separate property and to dispose (jf in manner aforesaid all real and personal property which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after mar- riage, including any wages, earnings, money and property gained or acquired by her in any employment, trade, or occupation in which she is engaged, or which she carries on separately from hor husband, or by the exercise of any literary, artistic, or scientific skill. 5. Every woman married before the commencement of this Act shall be entitled to have and to hold and to dispose of in manner aforesaid as her separate property all real and personal property, her title to which, whether vested or contingent, and whether in possession, reversion, or remainder, shall accrue after the commencement of this Act, including any wages, earnings, money and property so gained or acquired by her as aforesaid. 12. Every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, including her hixsband, the same civil remedies, and also (subject, as regards her husband, to the j^roviso hereinafter contained) the same remedies and redress by way of criminal proceedings, for the protection and security of her own separate i)roperty, as if such property belonged to her as a feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort. In any indict- ment or other proceeding under this section it shall be sufficient to allege such property to be her property ; and in any proceeding under this section a husband or wife shall bo competent to give evidence against each other, any statute or rule of law to the contrary notwithstanding : Provided always, that no criminal proceeding shall be taken by any wife against her husband by virtue of this Act while they are living together, as to or concerning any property claimed by her, nor while they are living apart, as to or concerning any act done by the husband while they were living together, concerning property claimed by the wife, unless STich property shall have been wrong- fully taken by the husband when leaving or deserting, or about to leave or desert, his wife. 13. A woman after her marriage shall continue to be liable in respect and to the extent of her separate property for all debts contracted, and all con- tracts entered into or wrongs committed by her before her marriage, including any sums for which slu' maybe liable as a contributory, either before or after she has been placed on the list of contributories, under and by virtue of the Acts relating to joint stock comiaanies; and she maj' be sued for any such 70 PARTIES TO THE CONTRACT. debt auil tor auy liability in damages or otherwise under any such contract, or in respect of any such wrong ; and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable out of her separate property; and, as between her and her husband, unless there bo any contract betxs-een them to the contrary, her separate property shall be deemed to be primarily liable for all such debts, contracts, or wrongs, and for all damages or costs recovered in respect thereof : Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act, for any such debt, contract, or wrong, as aforesaid, except as to any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for her separate use under the Acts hereby repealed or otherwise, if this Act had not passed. 14. A husband shall bo liable for the debts of his wife contracted, and for all contracts entered into and wrongs committed by her, before marriage, including any liabilities to which she may be so subject under the Acts relating to joint stock companies as aforesaid, to the extent of all property whatsoever belonging to his wife which he shall have acquired or become entitled to from or through his wife, after deducting therefrom any payments made by him, and any sums for which judgment may have been bond fide recovered against him in anj^ proceeding at law, in respect of any such debts, contracts, or wrongs for or in respect of which his wife was liable before her marriage as aforesaid ; but he shall not be liable for the same any further or otherwise ; and any Court in which a husband shall be sued for any such debt shall have power to direct any inquiry or proceedings which it may think proper for the purpose of ascertaining the nature, amount, or value of such property: Provided always, that nothing in this Act contained shall operate to increase or diminish the liability of any husband married before the commencement of this Act for or in respect of any such debt or other liability of his wdfe aforesaid. 15. A husband and wife may be jointly sued in respect of any such debt or other liability (whether by contract or for any wrong) contracted or incurred by the wife before marriage as aforesaid, if the plaintiff in the action shall seek to establish his claim, either wholly or in part, against both of them ; and if in any such action, or in any action brought in respect of any such debt or liability against the husband alone, it is not found that the husband is liable in respect of any property of the wife so acquii-ed by him or to wliich he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the action against the wife if jointly sued with him ; and in any such action against husband and wife jointly, if it appears that the husband is liable for the debt or damages recovered, or any part thereof, the judgment to the extent of the amount for which the husband is liable shall be a joint judg- ment against the husband personally and against the wife as to her separate property; and as to the residue, if any, of such debt and damages, the judgment shall be a separate judgment against the wife as to her separate property only. 16. A wife doing any act with respect to auy property of her husband, which, if done by the husband with respect to property of the wife, would MARKIRD WOMEN. 71 mako tho husband liable to ci-iuiiual proceedings bj' the wife under this Act, shall in like manner bo liable to ciiminal proceedings by her husband. 19. Nothing in this Act contained shall interfere with or affect any settle- ment or agreement for a settlement made or to bo made, whether before or after marriage, respecting the property of any married woman, or shall interfere with or render inoperative any restriction against anticipation at present attached or to be hereafter attached to the enjoyment of any property or income by a woman under any settlement, agreement for a settlement, will, or other instrument ; but no restriction against antici])ation contained in any settlement or agreement for a settlement of a woman's own property to be made or entered into by herself shall have any validity against debts contracted by her before marriage, and no settlement or agreement for a settlement shall have any greater force or validity against creditors of such woman than a like settlement or agreement for a settlement made or entered into by a man would have against his creditors. 21. A married woman having separate property shall bo subject to all such liability for the maintenance of her children and grandchildren as the husband is now by law subject to for the maintenance of her children and grandchildren : Provided always, that nothing in this Act shall relieve her husband from any liability imjjosed upon him by law to maintain her children or grandchildren. 22. The Married Women's Property Act, ISTO, and the Married Women's Property Act, ISTO, Amendment Act, 1874, are hereby repealed: Provided that sucli repeal shall not affect any act done or right acquired while either of such Acts was in force, or any right or liability of any husband or wife, married before the commencement of this Act, to sue or be sued under the provisions of the said repealed Acts or either of them, for or in respect of any debt, contract, wrong, or other matter or thing whatsoever, for or in respect of which any such right or liability shall have accrued to or against such husband or wife before the commencement of this Act. 23. For the purposes of this Act the legal personal representative of any married woman shall in respect of her separate estate have the same rights and liabilities and be subject to the same jurisdiction as she would be if she were living. 24. The word " projierty " in this Act includes a thing in action. The Married Women's Property Act, L893, repeals (by sect. 4) sect. 1, sub-ss. (3) and (4), of the Act of 1882, and, by its first section, enacts as follows : — 1. Every contract hereafter (y) entered into by a married woman other- wise than as agent — (a) shall be deemed to be a contract entered into bj' her with respect to and to bind her separate proiierty whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract ; (/) SciL, after Dec. 5, 1893. 72 PARTIES TO THE CONTRACT. (b) shall bind all separate property ^vliich slie may at that time or thereafter be possessed of or entitled to ; and (c) shall also be enforceable by process of law against all property which she may thereafter while discovert be possessed of or entitled to ; Provided that nothing in this section contained shall render available, to satisfy any liability or obligation arising out of such contract, any separate property which at that time or thereafter she is restrained from anticipatmg. Sect. 2 makes property on wliicli there is a restraint from antici- pation liable in certain cases for costs. Tho result of this legislation is, that a married woman is — apart from the power to contract as agent for a third person which she has always possessed — capable of binding, and is presumed to bind, herself to the extent of her separate property by lier ow^n contracts; the right acquired against her is " proprietary," as it is called, not personal {g). Under the Act of 1882 it w^as held that it was necessary to allege and prove tliat the married woman, at the time she made the contract, possessed separate property {h), and that of such a kind as she might be reasonably expected to have contracted in respect of it (/)■ The Act of 1893 has changed this by sect. 1, sub-s. (a). Sect. 1, sub-s. (b), would appear to have left the law as it was. A creditor could not, before the Act of 1893, satisfy a judgment, obtained against a married woman on a contract made dm-ing coverture, out of property which she acquired after the death of her husband: sect. 1, sub-s. (e), of that Act has removed that disability. With regard to her torts, a married woman is liable to the extent of any separate property she may, at any time, have (/.') . If a woman wlio is a party to a contract of service marries, the maniage will not dissolve the contract, and is no excuse for her leaving service {/). Legislation has restricted the employment of married women (iii). (ff) Palliser v. GiirHeif (1886), 19 Miell v. Etif/lish (1866), 15 L. T. 249. Q. B. D. 519: Scott v. Morlcy (ISsT), It has been held that under the Act of 20 Q. B. D. 120. The nature of the 1 882 the husband is .still liable to be sued liability would seem to be unaltered by witli the wife : Scroka v. Kattenhurg the Act of 1893. (1886), 17 Q. B. D. 177. ,„ , (/) Burn's /Ms^icr, v., 222, 30th ed. ; {h)ramsrrY.Gurncy,tcbisup.; Stogdon j^ ' ^ Tardebiqq (1753), Saycr, 100; V. Lee, [1891] 1 Q. B. 661. ^,j^^ ^^^ g■,^^l^ q^^^^^^ 322 ; Chitty's (t) Braunsteinv. Lewis {\89\), do Ij.T. General Practice, 3rd ed., 77 n : Fitz- 449. herbert, 168, N. {/c) Of course she can still as agent or {m) See Factory and Workshop Act, servant make third parties Uable. See 1901 (1 Edw. VII. c. 22). LUNATICS PARTNE1^S1 Ill's. 73 (0.) — Lunatics. A contract of liiriii<>- and service entered into by a lunatic is binding- unless the fact of insanity be known to the person contracting with the lunatic. Some of the older autliorities state tliat the acts of a lunatic are wholly void («). But modern cases seem to have laid down the doctrine stated above (o). A lunatic may he bound by contracts for necessaries, including services suitable to his rank and station (/>). (D.) — Partnerships. A partner has implied authority to hire servants for the purposes of the partnershi]), unless the person with whom he is dealing knows that he has no authority, or does not know or believe him to be a partner (5'). (w) See Holt, C. J., in Tliommn v. necessary repairs done to his house Leech (9 Will. III.), 3 Salk. 301; see at the request of his wife; plaintiff also Garth. 483, and eases cited in knew of defendant's lunacy ; his wife Multon V. Camroux. received a sufficient allowance to (o) Molton V. Camroux (1848), 4 Ex. provide all necessaries; no cause of 17 ; Iinpertul Loan Co. v. Stoni\ [1892] action.) 1 Q. B. 599, which would seem to render {p) Baxter \. Earl of Portsmouth (1826), immaterial the distinction drawn in 5 B. & C. 170. (Tradesman supplying a Molton V. Camroux between executed and lunatic with carriages suitable to his executory contracts and its consequences. station.) And see also iJ/'oww \. Jodrell See bX^o Jicaran v. McDonnell (1854), 9 (1827). 3 C. & P. 30. As to contracts Ex. 309; Lovutt v. Tribe {\'6&'l), 3 F. & with drunken persons, Gore v. Gibson F. 9; Bas.sard \. Smith {IHT2), 6 Ir.Eq. (1845). 13 M. & W. 623; Matthews v. 429. As to contract made by wife of a Baxter (1873), L. R. 8 Ex. 132. lunatic, see Brew v. i\M«w (1879), 4 {(j) Partnership Act, 1890 (53 & 54 Q. B. D. 661. (Defendant authorised Vict. c. 39), s. 5; and see sect. 9. See his wife to deal with the plaintiff also sect. 8 as to the effect of notice of a and pledge his credit ; defendant sub- restrictive agreement between partners, sequeutly became insane; held liable Beckham v. J)rahe {\S-il), d M. 6c Vi. 79. for <'-oods ordered by her during his (A dormant partner held liable on a insanity, the plaintitt' not having had contract not signed by him, by which notice of the defendant's insanity.) the plaintiff was hired for seven years.) llichnrdson v. Dubois (1869). L. E. 5 In R. v. Leech (1821), 3 Stark. 70, it Q. B. 51. (Action against lunatic for was held that a servant in the employ- 74 PARTIES TO THH CONTRACT. One partner would have power to discharge a servant, though not, of course, against the will of his co-partners (r). (E.) —Corporations. Contracts of hiring and service l)y c()r})oi-ations must be under seal, if tlie contracts be of an iinusiud or imi)ortant character [s). Contracts of hiring- and service, in tlie case of trading companies, need not be under seal. "The seal is required," as Rolfe, B., explains in Mayor of Ludlow Y. C/iarlfoii (f), '^ as authenticating the concurrence of the whole body corporate." The principle that a seal must he used in contracts is stated in unqualified terms in some ancient authorities {») ; but it has been subjected to important exceptions, the exact limits of which are not easily determined. The following exceptions, however, seem to be established : — (1.) Contracts of trading companies entered into for the purposes for which they are established need not be under seal. This excep- tion is now clearly recognised {.v) ; and it would seem that the old rule is obsolete so far as trading companies are concerned. Actions merit of a firm is, for the purpose of servant to remain in consequence of desoi'iiitiou in an indictment for the such authority. If a servant is injured larceny of the separate property of one by reason of tlie negligence of one of the partners, the servant of each of partner within the scope of the partner- thc partners. ship, the other will be liable also : (>•) In Dixon on Partnership, p. 139, Ashirorth v. Stamvix (1861), 30 L. J. the law is thus stated: "As a partner Q. B. 183. And see sects. 10 and 12 of may hire servants, so he may dismiss the Partnership Act, 1890. them if tlio other partners do not foi-bid ; [n) See generally as to contracts of and even if thi^y do forbid it, it is con- corporations, Bacon's Abridg., " Cor- ceived tliat, at least as against the porations," E. 3, and Viner's Abridg., servant, a valid dismissal could be "Coii)orations," K. The rule held effected." See Lindley on Partneinhip good in equity as well as at law : Winve (6th ed.), 157. In Donaldson v. Williamx -v. Bampton (1747), 3 Atk. 473. As to (1833), 1 Cr. & M. 345, it was held that the fraudulent affixing of a seal or seal- one of two partners, joint tenants of a iug without delivery, see Staple of house where their business was carried EiKjland v. Bank of England (1887), '21 on, had a right to autliorise a weekly Q. B. D. 160. tenant to remain in the house, though {t) (1840), 6 M. .t W. 815. the other partner had given him a week's [u) For example, 13 Hen. VIII., f . 12. notice to leave the service of the fu-m, (.r) Kolfe, B., in Mayor of Ludlow v. and that it woidd be lawful for the Charlton, see note {t). CORPORATIONS. 75 by a g-as company for the supply of gas (//), b}' a cf)lliery com- pany (s) against an engineer who had agreed to erect pumping engines, by a trading company on a parol agreement to supply pro- visions for a passenger ship (a), and for the supply of goods against a company having power to purchase goods {b), were held to be maintainable, though the contracts were not under seal. " These exceptions," said Bovill, C. J., in Souf/i of Ire/and Collicnj Co. v. Waddle {r), " apply to all contracts by trading corporations entered into for the purposes for which they are incorporated." (2.) When a contract is partly executed in such circumstances that the equitable doctrine of part performance would apply, and is of such a nature as to be the subject of an action for specific performance, it will bind a corporation, though it be not under seal. This description of a class of cases, which it is exceedingly hard to define, is taken from the judgment of Lindley, J., in ILint v. Wiuthh'don Local Board {(l). It was once supposed that a clear distinction existed between executory and executed contracts, corporations being not liable under the former if the contracts were not under seal, while they were liable for the latter. This distinction, which is approved of in Ea>it London Wafer- works V. Bailey [e), is no longer recognised. It has been decided that a person who enters upon and pays rent for corporate property, under a demise for years, made on behalf of a corpora- tion, but not under their corporate seal, becomes tenant from year to year (./) ; and in the view of Kelly, 0. B., when a person so contracts with a corporation by parol that the contract is en- forceable in equity against it, the other party is bound by any stipulation made by him in consideration of the liability so imposed u})on the corporation (/). Unions and Gaurdiana of Poor. By the 5 & G Will. IV. c. 69, s. 7, and 5 & Vict. c. 57, s. 16, Guardians of the Poor are made corporations. They are Hable on all contracts of trifling consequence, and of frequent occuiTence, whether under seal or not, as is illustrated by Clarke v. The Cnckfield (h) (1S''3) 1 Sim. & St. 5'20. wise there would be many deeds." In (1803) 15 Ir. Ch. .105. ^ Hen VII. f. 17, and 7 Hen. VII. f 9, ^ ' ^ '' „ _, 11 T I the rule is lustitied lu the case ot the {k) See judgment of BramweU, L J . , p^jpioynient of servantn, ' ' because there and Brett, L. J., in llimty .Wimblcdm .^ J^otiiinK divested out of their (the Local Hoard (18(8) 4 O. r. U. 48 , corporation's) possession." See also approved by the House of Lords m jj^^^,^^ ^ ^^.^ ,^Q(,gx ^ Ventria, 47. YoiuHj V. Corporation of Leaminglon ,. ^^^^^,^,^ ^ Cuckfield Union (1852), (1883), 8 A. C. '^^l-J^^^^^^J^'!^*!; '21 L. J. Q. B., per Wightman, J., at Clifcon SchoolBoard(\^M),l^\i. ii.}). 354. law ford v. liUlericay Rural 500,whereMathew J. (p 503), m giving \j,,,,,^^-i^ rpjo^n ^ k. B. 772 '(services judgment for the plaintiff on a contract j.^^dered by an engineer at defendants' not under seal, treats the adoption ot j. gg^) . but not where the seal is made the benefits of the contract by the de- obligatory by statute: Yomn, v. Mayor, fendants as evidence ot the ne.cesmry ^^.,^,_ y ^^^^,J,^^^i^,, .Sy/(1883), 8 A. C. character of the work done. _5,- Perhaps there ought to be a fifth (/) This is recognised in many cases ; division inchuling cases of utility iorexu.imp\e, Mayor of Ladloivv. C/iarltoH amounting to nece.ssity. See Wight- (1840), 6 M. & W. 815. inuii, J., iu Clarke v. Cuckfield Union (m) In 4 Hen. VII. f. (il, the reasim (1852), 21 L. J. Q. B. 349; Scott v. "•iven by Townseud, J., is " these things Clifton School Hoard (1884), 14 Q. B. D. do not require to be by deed, for other- 500. CORPORATIONS. i i Union (o), and Niehoho)) v. Tlio Bradfiold Union {p) ; but all contracts of importance, or of an imnsual character, should be under seal. Claims for making a j)lan of the parishes of a union iq) have been disallowed when the contracts were not under seal (;•). Municipal Corporations. They are not, like trading companies, wholly exempt from the operation of the rule of common law, that contracts of corpora- tions must be under seal. They may, no doubt, engage by parol a door-keeper, for example, or enter into a binding contract for some unimportant purpose, or relating to a matter of constant occurrence ; but the authorities cited below show that they cannot appoint a solicitor, or conclude any other contract of a special and unusual character, without employing the corporate seal (s). But (o) (1852), -21 L. J. Q. B. :H9. Con- tracts with tradesmen not under seal to put up certain water-closets in connec- tion with workhouse ; guardians liable : explained and followed in Lairford v. Billericaij Rural CuhhcU, [190;]] 1 K. B. 772. See note («). [p) (1866), L. R. 1 Q.B. 620. Defen- dants held liable for price of coals sup- plied by plaiutiif under contract not under seal. [q) Paine v. The Strand Union (1846), 8 Q. B. 326. (r) The other chief cases on the sub- ject are these : Sanders v. St. Neots Union (1846), 8 Q. B. 810. (Action lies for iron gates supplied to defendants and accepted, though contract not under seal.) Lamprell v. Billericay Union (1849), .3 Ex. 283. (Action for extra work by a builder ; defendants not liable, the order not being under seal.) Smart v. The JFe^t Ham Union (1855 and 1856), 11 Ex. 867. (Guardians appointed plaintiff collector of poor rates, not mider seal, to be paid by a certain poundage ; action for unpaid poundage not maintainable.) Haiffh V. The Nortii Bierlcy Union (1858). E. B. & E. 873. (Accomitant employed by guardians to audit accounts of the union ; held that plaintiff could recover for liis services, the work being inci- dental to the purposes for which the corporation was created.) Dj/te v. St. Pancras Guardians (1872), 27 L. T. 342. (Resolution passed by Infirmary Com- uiittce, and approved by defendants also by resolution, that plaintitf be appointed medical officer for three mouths ; plain- tiff entered upon his duties, and per- formed them for three months ; contract not under seal ; no action lay.) Some of the reasons given, e.g., the reasons given by Martin, B., seem not sustain- able. Austin V. Bethnal Green Union (1874), L. R. 9 C. P. 91. (Appointment of a clerk to workhouse ; no action lay, because appointment not under seal.) [s) Maxfor of Ludlow v. Charlton (1840), 6 M. & "W. 815; Arnold v. Mayor of Poole (1842), 4 M. & G-. 860. (An attorney could not succeed in an action for work and labour in opposing certain bills in Parliament in pursuance of instructions from mayor and members of town council, the contract not being under seal.) But see Faviell v. E. C. It. Co. (1848), 2 Ex. 344. R. v. Mayor of Stamford (1844), 6 Q. B. 433. (Resolu- tion to increase town clerk's salary in lieu of compensation ; such a contract must be under seal.) R. v. Lichfield (1843), 4 Q. B. 893. (A resobition of the town council sufficient authority to warrant payment of costs to attorney.) Smith V. Curtivright (1851), 6 Ex. 927. (Plaintiff sued as coal meter of King's Lynn. His appointment not under seal, but evidence of it by entry in books of the corporation ; held that, not being a servant but an offi(;er of the corporati(m. he could not be appointed without deed.) See, however, Thames Haven Co. v. Hall (1843), 5 M. & G. 274, and R. v. Justices of Cumberland (1847), 17 L. J. Q. B. 102. Mayor of Kidderminster v. Hai-dwick (1873), L. R. 9 Ex. 13. (Contract by plaintiffs letting certain tolls, not under seal ; not binding on defendant, the highest bidder.) Glemenshaw v. Corpora- tion of Dublin (1875), 10 Ir. C. L. 1. (Defendants employed plaintiff to pro- 78 PARTIES TO THK CONTRACT. tliey will bo held liable to pay for work done at their request upon a contract to pay implied from the execution of the work and the acceptance of the benefit (/). It is needless to say that, while between the master and servant this holds good, a servant so improperly appointed may, as regards third persons, bind a corporation. Local Boanh and Urban AutJioritieH. The Public Health Act, 1875 [ti), by s. 174, enacts that with respect to contracts made by an urban authority under this Act, the following rogidations should be observed, viz. : — " (1.) Every contract made by an urban authority whereof the value or amount exceeds 50/. shall be in writing iind sealed with the common seal of such authority : (2.) Every such contract shall specify the work materials matters or things to be furnished had or done, the price to be paid, and the time or times within which the contract is to be performed, and shall specify some pecuniary penalty to be paid, in case the terms of the contract are not duly performed : (3.) Before contracting for the execution of any works under the provisions of this Act, an urban authority shall obtain from their surveyor an estimate in writing," &c., as to the probable expenses and annual repairs : (4.) " Before any contract of the value or amount of 100/. or upwards is entered into by an urban authority ten (lays' public notice at the least shall be given, oxprossiug the nature and purpose tlioreof and inviting tenders for the execution of the same ; and sucli authority shall require and take sufficient secimty for the due performance of the same : (5.) Every contract entered into by an urban authority in conformity witli tlie pro- visions of this section, and duly executed by the other parties thereto, shall be binding on the authority by whom tlu^ same is executed, and their successors and on all other parties thereto and their executors administrators successors or assigns to all intents and purposes," &c. So much of this section as relates to sealing is not directory only ; it is imperative. Hence, when a local board — an urban authority imder the Public Healtli Act, 1848, and the Public mote a bill in Parliament to enable (0 Laivford v. Billericay, ^-c, [1903] clefeudants to purchane gas works and 1 K. B. 772. become voudor.s of gas; contract not («) As to London, see Metropolitan under seal; not binding.) This last Mauagemout Act, 1855(18 & U) Vict, case mainly turned on a question of c. 120), s. 149, and Local Government ultra vires. Act, 1888(51 & 52 Vict. c. 41), ss. 40, 79. COMPANIES. 79 Iloalth Act, 1875, — verbally directed tlieii- surveyor to employ the plaintiff, an architect, to prepare plans for new offices, it was held by the Court of Appeal, that the contract could not be enforced, owing to non-compliance with the statutory requirements ; although the jury found that the local board had authorised their surveyor to procure the plans, and ratified his acts, that the new offices were necessary for the purposes of the defendants, and that the plaintiff's plans were necessary for the erection of the buildings (.r). CoiifractH 1)1/ Co))ipa)iics idkJci- the Liniifod Lial)iHfi/ CouipanieH Acfs. By Table A. (55), the business of a company under the Companies Act, 1802, sliall be managed by the directors. They may exercise all sucli powers of the company as are not required by the Act or Articles of Association to be exercised by the com- pany or by general meeting, and may do all acts (including the hiring of servants) reasonably necessary for the business of the company. The ;}7th section of the Companies Act, 1867, enacts : — Contracts on behalf of any company under the principal Act may be made as follows : (that is to say) ; (1.) Any contract which if made between private persons would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the company in writing under the common seal of the company, and such contract may be in the same manner varied or discharged. (2.) Any contract which if made between private pei'sons would be by law required to be in writing, and signed by the parties to be charged therewith, may bo made on behalf of the com])any iu writing signed by any person acting under the express or implied authoritj- of the company, and such contract may iu the same manner bo varied or discharged. (3.) Any cf)ntract which if made between private persons would by law be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any person acting under the express or implied authority of the company, and such contract may in the same way be varied or discharged. And all contracts made according to the provisions herein contained shall bo effectual in law, and shall bu binding upon the company, and their successors, and all other parties thereto, their heirs, executors, or administrators, as the case may bo. (x) Hunt V. Wimbledon Local Hoard .517 (where the work had been exe- (1878), 4 C. P. D. 48; Young v. Cor- cuted and the bouefit adopted). poration of Leamington (1883), 8 A. C. 30 PARTIES TO THE CONTRACT. Coii/p'iiiics under the Companies Chiuse-s Consolidation Act, 1845. The 8 & 9 Vict. c. Ki, s. 97, enacts as follows :— With respect to any contract which, if made between private persons, would be by law required to be in writing, and under seal, such committee [see sect. 95] or the directors, may make such contract on behalf of the company in writing, and under the common seal of the company, and in the same manner may vary or discharge the same : With respect to any contract which, if made between private persons, would be by law required to be in writing, and signed by the parties to be charged therewith, then such committee or the directors may make such contract on behalf of the company in writing, signed by such committee, or any two of them, or any two of the directors, and in the same manner may vary or discharge the same : With respect to any contract which, if made between private persons, would by law be valid although made by parol only, and not reduced into writin"-, such committee or the directors may make such contract on behalf of the company by parol only, without writing, and in the same manner may vary or discharge the same (y). (y) See Bill v. Darenth VaJhij Rail. cuntract binding in itself doe.s not carry Co. (1856), 1 H. &N. 305, as to secretary with it an authority to execute extra .suing for salary which had not been works : Homrrsham v. Wolverhampton determined at a general meeting in IFaterworks Co. (18^)1), 6 Tix. I'-il. accordance with the Olst section. A 8X CHAPTER VI. FORMALITIES OF THE CONTRACT. A CONTRACT of liiring and service to be completed witliin a year need not be in writing; if not to be so completed, it must be in writing (a). At Common Law a verbal promise for good consideration sufficed to create a contract of hiring and service ; and no particular form of words was required (h). Indeed, it is possible and common to conclude contracts of hiring and service without expressing the whole of the terms orally ; some of the terms are implied. The parties must be at one ; the terms must be fixed ; there must, in short, be an agreement (f) . The payment of "earnest" or " fastening money," for example, will often suffice. The Common Law, however, is qualified by the 4th section of the Statute of Frauds, which provides that : — No action shall be brought upon any agreement that is not to be performed within the space of one year from the making thereof unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. " No action shall be brought," are the words of the statute, which, apparently, does not make a verbal contract absolutely void, but (rt) Beeston v. Collyer (1827), 4 Bing. year to be 120^., &c. If the terms herein 309 ; Chitty on Contracts, 13th ed. specified are in accordauee with your 103-4 ; 29 Car. 2, c. 3, s. 4. ideas, kindly confirm them by return, {b) Beeston v. Collyer, see note («). and I will then prepare to enter on my [e) Johnson v. Applchy (1874), L. R. duties at your warehouse on Monday 9 C. P. 158. The plaintiff proposed to morning next." The defendants wrote : enter the service of defendant and wrote " Yours of yesterday embodies the sub- as follows: " Referring to my conversa- stance of our conversation and terms, tion with you, I have now the pleasure If we can define some of the terms a to state my willingness to enter the little clearer, it miglit prevent mistakes ; service of your firm for one year on but I think we are quite agreed on all." trial on the following terms, viz., a list Meld : — that evidence of a custom to dis- of the merchants to be regularly called miss salesmen at a month's notice was on by me to be made and corrected as admissible, there being no complete occasion requires. My salary for the contract. M. G 82 FORMALrriES OF THE CONTRACT. prevents an action being brouglit upon it {d). It has, however, been held that an agreement of hiring and service not to be performed within a year, and not committed to writing, could not be enforced by criminal process under the repealed Master and Servant Act, 1807 (e). The Statute of Frauds, it may be added, only applies to contracts which on the face of tliem show that they cannot be performed within a year. It does not extend to cases in which it is improbable that the contract will be completed witliin that time, or in wliich the performance of the contract has, in point of fact, taken more than a year, if it might be performed within the year, and tliere be no stipidation to the contrary (./'). An agreement for a longer term than a year, but liable to be deter- mined on a contingency which may happen within the year, is within the statute, and must be in writing ; for example, an agreement to let and hire a carriage for five years, but liable by custom to be determined at any time on payment of a year's hire(/'/). The manner in which the Courts have construed this section will be understood from the following illustrations : — A. verbally agreed on the 27th of May with B. to take B. into his service as groom and gardener for a year, to commence on the 30th of June next. No action could be brovight (/;). A. delivered to B. on the 2()th of July a memorandum in writing which was unsigned, and which contained j^roposal, and terms as to B. entering A.'s service for a year. B. entered A.'s service on the 24th of July next, and was discharged before the end of the year. No action lay for not continuing B. in A.'s service [i). Verbal agreement on the 2nd of October, 1854, between A. and B. that A. should employ B. as a traveller, until the 1st of September, 1855, and for a {0) Leroux v. Broivn (1852), 12 C. B. C. B. 808 (coutract for the mamten- 80 i. But see Willes, J., in IVilliams v. ance of a child " so long as the defeii- Jr^e^v'w (18G0), 8 C. B. N. S. 316. dant shall think proper"); Smith v. (c) Banks v. Vrossland (1874), L. R. Neale (1857), 2 C. B. N. S. 67. 10 Q. B. 97. Lush, J., based his de- (i/) Birch v. Liverpool (1829), 9 B. & cision on the fact that under the C 392 ; Davey v. Shannon (1879), 1 4 Geo. IV. c. 34, s. 3, a coutract of Ex. D. 81 (engagement for three service, in order to be enforced uuist be years by a foreman tailor on the terms in writing, or the servant must have that if the defendant left plaintiff's entered into service, and that the Act of employment he should not engage in the 1867 extended only to cases within the service of any one carrying, or himself old Acts. On the other hand, the carry, on business of tailor, &c., witliin Scotch Courts decided that under the five miles of D. ; within the statute) ; above Act a complaint against a servant (Jherrij v. lleming (1849), 4 Ex. 631. for failure to enter upon a contract of (A) Bracr(iirdle v. lleahl (1818), 1 service might be entertained, although B. & Aid. 722. "Performed," said the contract was not in writing: Ker- Lord Ellenborough, moans "a full, shaio V. Mitchell ^ Co. (1872), 2 Coup. effective, and complete performance." 206. (t) SnclVuH/ v. Himtimjfield (1834), 1 (/) Sottch V. Stratvbridge (1846), 2 Cr. M. & R.' 20. FORMALITIES OF THE CONTKACT. 83 year thereafter, unless the emplnymont wore determinofl by three months' notice. An action for wrongful dismissal did not lie (/.). Plaintiff agreed on Sunday the 2;3rd of March to serve defendant for a year, commencing next day. On Monday plaintiff entered defendant's service, received 20/. on account, and gave a receipt — " On account of my salary for assistance in keeping books from Lady-day, for twelve months." A jury might infer n, fr<\sh substituted contract on the 24th for a year's service (/). Plaintiff ontored the service of defendant under a written agreement, dated April l;Jth, 1871, by which he agreed to accept "the situation as foreman of the works of the defendant, &c." on his receiving "a salary of two pounds per week andhouse to live in from 19th April, 1871." Held: — A weeklyhiring ; and evidence of a conversation at the time of signing the contract with a view to show that a hiring for a year was intended, not admissible (to). Plaintiff signed the following document which was di'awn up by a clerk in the emplojTnent of the defendants with their authority : — " To Messrs. H. & Co." (the defendants), " Gentlemen, in consideration of your advancing my salary, I hereby engage to continue in your office for three years from January 1, 1890." Held, a sufficient memorandum («). Plaintiff was verbally engaged on December 6th to serve the defendants for one year from the following day, December 7th. Held, not within the statute (o). The agreement need not be in one writing ; it may be contained in several documents which refer to each other, and which do not require verbal evidence to show that they in fact refer to each other (/;). Thus, when A., a master builder, filled in, signed, and sent to the Secretary of the Free Labour Eegistration Society a form containing particulars as to the kind of employment and terms offered by him at S., and when B., having heard the form read over to him, signed an agreement headed " Free Laboui' Society," by which he stated that he had accepted employment at S., and that he would not quit the service of his employer without just cause, it was held that the documents sufficiently referred to each other, and constituted a contract in writing signed by both parties {q) . The signature may be on one part of the memorandum (A) Dobson v. Collis (1856), 1 H. & N. («) Evans v. Hoare (1892), 66 L. T. 81. 346. {I) Gawthorne v. Cordrey (1863), 13 (o) Smith v. Gold Coast, ^-c. Ltd., C. B. N. S. 406, commented on by [1903] 1 K. B. 285 ; ibid. p. 538 (C. A.). Brett, L. J.,in i;ri<«iHV. Jio.s.sti;t?-(1883), {p) Boy dell v. Driimmond {IS09), 11 11 Q. B. D. 123, where it was held that East, 142; Jo}ies v. Victoria Graving a contract to serve, the service to com- Docl.- Co. (1877), 2 Q. B. D. 314. Sign- mence on the second day after the ing by both parties is not requisite, making of the contract, is within the Merc initials are apparently sufficient : statute. Leake on Contracts (4th ed.), p. 1S4. (m) Hvans y. Moe {l8T2),Jj.Il. 7 C. P. (7) Crane v. Fowell (1868), L. E. 4 138. C. P. 123. A clause in articles of q2 ^4 FORMALITIES OF THE CONTRACT. or agroement ; the terms of tlie employment may bo on another ; and the signature need not have been put to attest or verify the contract. A draft agreement between plaintiffs and a company was prepared ; a minute of a resolution to engross, sign, seal, and execute the agreement was entered in the company's books ; and at the next board meeting the chairman signed the minute thus : " Read and confirmed; Claud Hamilton." Held: — that, though the sio-nature might have been intended merely to be in compliance with the requirements of the Companies Act, 1). Knowledge of such rules by the servant must be shown ; e.y., by proving that the rules were displayed in a prominent place (c), and that the workman could read. ix) Chitty on Contracts, 13th ed., sari es " in articles of apprenticeship ; i2. 44, 104. Per Tindal, C. J., in Soiich v. v. Stoke- upo})- Trod (1843), 5 Q. B. 303, Strawbridqe (1846), 2 C. B. 808, 814 ; as to custom as to holidays; Grant v. and see Kmwhnan v. Bluett (1874), L. R. Maddox (184C), 15 M. & W. 737, as to 9 Ex. 307 (Ex. Ch.) ; per Thesigor, L. J., usage as to payment in theatrical profos- in Britain \. liossitcr (1879), 11 Q. B. D. sion; Moidt v. Jfallidai/, [1898] 1 Q. B. 123 133. 125, as to custom of dis^charging domestic (y) (1846), 2 C. B. 835. servants at end of first month of service. (s) A>/lw V. Dixon (1839), 9 A. & E. {b) Cams v. Eastwood (1875), 32 L. T. 693. See Chap. VIII. 855. [a] A!)l>ottv.Bate.s{\S7i),-i-i'L.J.G.F. {<■) This is requned by some statutes, 150 ; 45 L. J. C. P. 117, as to " neces- e.c/., Coal Mines Regulation Act, 1887, gg FORMALITIES OF THE CONTRACT. It will be seen hereafter that a contract of hiring- and service is 2mma facie a contract for a year {d). Contracts of Seamen. Agreements with seamen have been the subject of the special attention of the Legislature. By sects. IV\ and 114 of the Merchant Shipping Act of 1894, tliey must be in writnig, except in case of ships of less than eighty tons register tonnage, exclu- sively employed in the coasting trade of the United Kingdom. The Mercliant Shipping Acts contain many regidations with respect to the form of and particulars in agreements with seamen. They are mainly comprised in sects. 113—125 of the Merchant Shipping Act of 1894 (67 & 58 Vict. c. 60). Tliese agreements are exempt from stamp duty (Merchant Shipping Act, 1894, s. 721 ; 54 & 55 Vict. c. 39, s. 1). Under the 2 Geo. II. c. 3G, which required all agreements for wages between captains and their crews to be in writing, it was decided in White v. JFiko>i {e), that a contract which did not mention, besides the money wages, the fact that a sailor was to get " the average price of a negro slave " was void. The law still requires the agreement to be in writing, but only when the ship in fact goes to sea (57 & 58 Vict. c. GO, s. 113). " Seamen " orally engaged to do work on a ship before she goes to sea may enforce their lien on the ship for wages due under the oral agreement, the ship not in fact going to sea at all (./). Contrnctn of Apprenticeship. The 5 Eliz. c. 4, s. 25, required that the binding of apprentices should be by indenture {(j) ; and similar provisions as to (i) parish apprentices and (ii) apprentices to shipowners, fishers on the sea, gunners, and shipwrights are contained in 43 Eliz. c. 2, s. 5, and 5 Eliz. c. 5, s. 12 respectively. As has been stated, where there was an expressed or implied agreement to teach a person a trade, the Courts held that a defective contract of apprenticeship— that is, a contract not sufficient to support a settlement — existed. The 54 Geo. III. c. 96, s. 2, declares that " it shall and may bo lawful for any person 8. 57 ; Truck Act, 1896, ss. 1, 2, and 3 ; (/) Be Great Eastern Steamship Co. Factory Act, 1901, ss. 35, 77, 78. (1885), 5 Asp. M. C. 511. (d) Seep. 135. [{/) This statute would appear to (e) (1800), 2 B. & P. 116. See also apply only to apprentices to husbandry. Elsivorth V. Wollmore (1803), 5 Esp. 84. See Austin on Apprentices, p. 17. CONTRACTS OF APPRENTICESHIP. 87 to take or retain or become an apprentice, though not according to the provisions of the said Act (sv//. o Eliz. c. 4) ; and that in- dentures, deeds, and agreements in writing entered into for that purpose, which would bo otherwise valid and effectual, shall be valid and effectual in law, the repeal of so much of tlie said Act as is herein last above recited notwithstanding " : and both the Acts of 5 Eliz. are now entirely repealed. The indenture must be executed by the infant (h), and the parties must be named therein ; but the master need not sign a counterpart (i) ; though, if he do sign, it is evidence against him though the apprentice have not executed (k) . As contracts of apprenticeship are usually for more than a year, they must in general be in writing. The Merchant Shipping Act, 1894, by sects. 105—109, prescribes regulations as to the indentures of apprentices to the sea (/). Apprentices to the sea are subject to the Employers and Workmen Act, 1875 (/;/), but are not withhi the Conspiracy and Protection of Property Act, 1875 (w). Apprenticeships of sea-fishing boys are specially dealt with in sects. 393—398 of the Merchant Shipping Act, 1894, and the indentures in such cases must be in the form prescribed by the Order in Council made under sect. 395 (o). Parish apprenticeship of pauper children by Guardians is regulated by the statutes and orders mentioned in the note (p). (/») Jt. V. Keynsham (1804), 5 East, (Merchant Shipping Act, 1880), repeals 309. As to recovering compensation the clause of sect. 13 of the Employers for boy's labour or for board during and Workmen Act, 1875, which ex- probation, Kecue v. Parsons (1819), 2 empted apprentices to the sea from its Stark. 506 ; JFUkins v. JFel/s (1825), operation. 2 C. & P. 231 ; Earratt v. Burghart («) Sect. 16. (1828), 3 C. it P. 381 ; Phillips v. Jones (o) Order dated Dec. 12th, 189'4 ; set (1834), 1 A. & E. 333 ; Harrison v. James out in Scrutton's Merchant Shipping Act, (1862), 7 H. & N. 804. In the City of 1894 (1895 ed.), at p. 705. London the indentures must be enrolled : [p) General Consolidated Order, Code V. Holmes, 2 Roll. Rep. 305. July 24th, 1847, Articles 52—74 ; Gene- (i) E. V. Ht.Pcter's-on-the-HiU (1741), rat Order, Feb. 15th, 1898. Statutes:— 2 Bott. 367. Poor ReHef Act, 1601 (43 Eliz. c. 2), {k) Burleigh v. Stibbs (1793), 5 T. R. s. 3 ; Parish Apprentices Act, 1792 (32 ■i65 ; Jlillership v. Brookes (I860), 5 Geo. 3, c. 57) ; Parish Apprentices Act, H. & N. 797. 1802 (42 Geo. 3, c. 46) ; Parish Appren- . '{1} For precedents of indentures, see tices Act, 1810 (56 Geo. 3, c. 139) ; Poor Board of Trade form set out in Tem- Law (Apprentices) Act, 1851 (14 & lo perley's Merchant Shipping Act, 1894 Vict. o. 11) ; Divided Parishes and Poor (1895 ed.), at p. 447. Law Amendment Act, 1876 (39 & 40 (;«) Sect. 11 of 43 & 44 Vict. c. 16 Vict. c. 61), s. 33. CHAPTEU VII. STAMPS. Agreements for the hire of labourers, artificers, " nuiim- facturcrs," menial servants, and sailors coasting from port to port in the United Kingdom do not require to be stamped (a). Agreements, as a rule, require to be stamped ; aud no document, letter, or contract, can be admitted in evidence as an agreement or as evidence of such unless it be stamped. Schedule I. to the Stamp Act, 1891 (54 & 55 Vict. c. 39, sub tit. "Agreement"), exempts :— (1.) Agreement or memorandum the matter whereof is not of the value of 5/. (2.) Agreement or memorandum for the hire of any labourer, artificer, manufacturer, or menial servant. («) Agreements with seamen made in fonns sanctioned by the Boaid of Trade are also exempt from stamp duty : 57 k 58 Vict. c. GO, s. 721. Uakin v. fratsoH (1841), 2 Cr. & Dix, 224. (Quoted in Tilsley on the Stamp Acts, p. 45 ; a clerk not within exception.} Wil.son V. Zulueta (1849), 14 Q. B. 405. (A stoker or fireman on a steamship, who was bound to obey the orders of the engineers, held to be a labourer or arti- ficer.) R. V. Jror/htj (1851), 21 L. J. M. C. 44. (Man employed to look after glebe land, his wife undertaking the care of the dairy and poultry ; a labourer.) Bishop v. Letts (1858), 1 F. & F. 401. (Overseer in a printing office an artificer.) I am not aware of any decision explaining what is meant by " hire of any manufacturer," nor do 1 know what it means. There have been many discussions as to whether a contract was for the sale of goods or for work or labour. See p. 36, .supra. Here may be also cited Pinmr v. Arnold [\?>ib) , 2 C. M. k It. 613. (Agreement between plaintiff', a pressmaker, and defendants, copperplate printers, to make an eagle press ; the agreement within thp third exemption.) Ht). The plaintilF, a surgeon, sold his business to the defendant. It was agreed that he should introduce the defendant to his patients, and should receive for the first four years one-fourth part of the gross earnings. In such a state of facts it was held that there was an implied covenant on the part of the defendant to continue the practice (o). (o) (18C3), 14 C. B. N. S. 6.31. _ The following are the chief decisions : Burton v. Great Northern Rail. Co. (1854), 9 Ex. b(\l. (By agreement on Ist October, 1851, plaintitl' undertook to provide all waggnus. horses, &c. necessary for th(^ cartage of all grain, &c. between" Hatfield and \\"ari;, that might be presented to him, at o.v. a ton. " It is mutually agreed that this agreement shall continue in force for the period of twelve mouths from the date hereof." The company gave notice that the arrangement would cease after Ist April, 18o2. Held, that the only contract by defendants was to pay the stipulated price for the cartage of such goods as . might be presented.) London, Leith, and Glascjow Shipping Co. v. Ferguson (1850), 13 D. 51. (An agent paid by the company by a commission on profits not presiuned to be engaged from year to year ; the company entitled to discon- tinue their trade without giving any pre- vious notice or any compensation for the loss of his situation.) Stirling v. Malt- land (1864), 5 B. & S. 840. (An insur- ance company covenanted for valuable consideration with C. D., to appoint him their agent in Glasgow, together with A. B., and if A. B. should be dis- placed from the agency, to pay C. D. a certain sum. The company, having transfen-ed their business to another company, were wound up and dissolved. The sole remuneration was by comnus- sion. Held, that the plaintiff was "dis- placed " within the meaning of the contract. " I look on the law to be that, if a party enters into an arrange- ment which can only take effect by the continuance of a certain existing state of circumstances, there is an implied en- gagement on his part that he shall do nothing of his own motion to put an end to that state of circumstances, under which alone the arrangement can be operative." Cockburii, C. J.) Ex parte Maclure (1870), 5 Uh. 737. [A. entered into an agreement with an insurance company to act as their agent for five years, and to transact no other insurance business without the consent of the company, in considera- tion of which he was to receive a fixed salary and 10 per cent, commission on the nett profits. Before the end nf the five years the company was wound up. Agent entitled to claim for salary, but not entitled to claim against the com- pany for loss of commission, inasmuch as the contract left the company free to determine the extent of their busi- ness.) In re Patent Floor Cloth Co. (1872), 41 L. J. Ch. 476. (Company engaged D. and G. as commercial travellers for three years ; they were paid by a commission on all goods ordered through them ; the company was wound up voluntarily before the end of the three years: Bacon, V.-C, held that D. and G. wore entitled to compensation for commission for the unexpired portion of the three years. He distinguished the case from Maclure' s Cane, on the ground that there the servant had stipulated for salary and commission.) In re Railirai/ and Electric ApijltuHces Co. (1888), 38 'Ch. D. 597. (Sale of patent ; covenant by purchasers to pay to vendors a royalty for every article manufactured by them under the patent " while subsisting," and a pro- portion of the profits arising from the manufacture and sale of articles made imder the patent " while subsisting;" failure by the purchasers through in- advertence to keep the patent on foot ; action by vendors against purchasers for damages iu respect of the royalties lost through the lapse of the patent : held, that no covenant to keep the patent on foot could be implied ; and that, even if it could, the plaintiffs were only entitled to nominal damages, the purchasers being under no obligation, either express or implied, to make tlie patented articles, and being no longer able to carry on business.) Kay, .)., puts the right to have a term of this nature implied on 96 THE CONSIDERATION. A similar question arises as to whether there is au obligation on the part of the master to find work for his servant. Where the contract of hiring merely contains an undertaking to pay stipulated wages in proportion to the work done, there is no implied obliga- tion on the master's part to find work ; though the disposition is to construe contracts of doubtful significance on this point as an agreement on the master's part to enable the servant to earn regular wages (p). A servant agrees to work for A. B. and no one else for twelve months, or until three months' notice is given. What obligation does this imply on the part of the employer ? To find a reasonable amount of work, having regard to the state of trade, so long as the employment lasts {q). On this subject the words of Coekburn, C. J., in Churchn-ard v. Queen (r), are in point : — " Where the act to be done by the party binding himself can only be done upon something of a corresponding character being done by the opposite party, you would there imply a corresponding obligation to do the things necessary for the completion of the contract." So if a man engages to work, and goes to great expense, and he is only to be paid by the measure of the work he has performed, the contract pre-supposes and implies an obligation to supply the work. A review of the authorities on this point discloses no definite rule. Each case must be decided on its merits (.v). It is the duty of the Court to decide by reference to the terms of the particular contract, or of a jury by looking at all the facts, and the practice of mankind, to say whether it was intended that a business should be continued, that work should be found, or a servant or labourer should be retained {t). When a servant is engaged in order to perform duties in regard to a certain definite business rather than to give his services in general, the duration of the contract is naturally regulated by the duration of the thing itself ; servants are for the tho ground of bad faith or something as to implied covenants, The Moorcock akin to it in the party sought to he made (1889), 14 P. D. 64; and particularly liable. Turner v. Goldamith, [18^*1] 1 the judgment of Bowen, L. J. Q. B. 544. (Agreement to employ (*) llamlyn tj- Co. v. Wood ^- Co., plaintiff as traveller, determinable by [1891] 2 Q! B. 488. notice at end of five years ; payment by {t) Turner \. Sawdon, [190i] 2 K. B. commission on his sales of goods manu- 653. Contract to continue to engage factured or sold by defendant ; factory and employ plaintiff as salesman for burnt down at end of two years, and four years at fixed salary. At end of business not resumed by defendant : two years defendants continued to pay held, action for damages maintainable.) salary, but refused to give him work : [p) See Appendix. held, defendants not liable. See Fcchter (q) Dcvonaldv. liosner and Sons, []dO&] v. Monlrjomery (1863), 33 Beav. 22; 2KB. 728. Bunninqii v. Lyric Theatre (1894), 71 (r) (1865), L. R. 1 Q. B. 195. See L. T. 396. THE CONSIDERATION. 97 business, and not the Lvisiness for tlie servants. It would be improbable in most eases tliat it was understood that a business was kept up merely or nininly to give employment to them. An agent's authority may be revoked at any time ; therefore when a contract is one of agency rather than of hiring and service, the natural inference would seem to be that the employer is free to tcninniite the relation at any time, [)rovided the employment be not coupli'(l witli an interest. Contracts of liiriuy and serv^ico will not be enforced if they are for illegal or immoral purposes, or are contrary to public policy. Most contracts of hiring and ser\dce and work and labour which have been pronounced void, on the ground that they are offensive to morality, have related to sexual morality. But the principle is not confined to cases of this sort ; the maxim ex turpi causa non orifur actio holds good generally. The application of it to contracts of hiring and service and work and labour is simple, when the contract is on the face of it, or necessarily, immoral. Thus, in Fop/ett v. Sfoekdale (u), the plaintiff sued for the expense of printing an immoral book called " The Memoirs of Harriette Wilson," containing the history of a celebrated prostitute ; and the Court refused to assist the plaintiff. " Every servant, to the lowest, engaged in such a transaction, is prevented from receiving compensation." Equally clear are the cases in which statute law is broken. Thus, it has been held that a printer cannot recover the cost of printing a pamphlet upon the first and last leaves of which he had not, in compliance Avith the 39 Geo. III. c. 79, s. 27, printed his name {x). So, too, it was held that a person could not (») (1825), 2 C. & P. 198; Forbes v. (28 Chas. II.), 2 Lev. 174. Contract Johiics (1802), 4 Esp. 97 (Assumpsit " to beat J. S. out of a dose." Cope v. will not lie to recover the price of Jioirlutuls ([S'66). 2 M. \- W. 149. (Uu- obscene prints); It. v. Nuithicmyjivld licensed broker in London cannot recover (1831), I B. & Ad. 912 ; Biad»haw v. commission.) Harrtnytun v. Victoria //«//(/■««; (1842), Car. & M. 691. Graving Dock Co. (1878), 3 Q. B. D. (j) Bcnslcy v. Bignold (1822), 5 B. 549. (PlaiutifP, an engineer of rail- & Aid. 335. See also Allen v, Mescous way company, Hued the defendants M. ' H 98 THE CONSIDERATION. recover muney Jidvanced for the briugiug out of Italian operas at a theatre, which he must have kuown was not licensed as required by 10 Geo. II. c. 28, and 28 Geo. III. c. 30 (//). The chief difficulty arises when the object of the contract is not necessarily or mani- festly immoral. A lessor, for example, sues for the rent of lodgings which he knows are to be used for the purposes of prostitu- lion (s). A washerwoman washes and does up linen for a woman known to be a prostitute (ti). The cases in which facts such as these have been proved, have not been consistent ; but the true rule seems to be laid down by the Court of Exchequer in Fcarce v. Brooks (b) — an action by coachmakers for the hire of a brougham let to one who used it for immoral purposes — tliat the plaintiff cannot recover if an article were supplied with a knowledge that it was to be used for such a purpose. The application to cases of hiring and service is obvious. No one could recover for services which he knew were given in furtherance of an immoral object. In Kearnpy v. Whitehaven Colliery Co. {o) the appellant was employed by the respondents under an agreement by which it was provided that he was to be paid according to the actual weight gotten of the mineral contracted to be gotten, and that he should not leave his emplojniient without fourteen days' notice ; the method of calculating the weight of the mineral, under the provi- sions of the agreement, was illegal, as being in breach of the Coal Mines Regulation Act, 1887 : in an action for damages by the company for breach of the agreement by the appellant in leaving his work without fourteen days notice : — Held, that the whole contract was not vitiated, and that the company coidd enforce the provision as to notice. A. L. Smith, L. J., at p. 714, says : — The rule is, that if the considoratiou is tainted with illegality, either in whole or in part, all the promises depending upon that consideration must fail ; but if the consideration be not tainted with illegality, either wholly or upon a contract for commission in [a] TJoydv. Jahnson (1798), 1 B. & P. consideration of his using his in- 340. fluence to induce the railway com- [b) (1866), L. R. 1 Ex. 213. See also pany to accept the defendants' tender Waiajh v. Moirix (1873), L. R. 8 Q. B. for the repair of ships ; no right 202 The dictum of Ellenborough, of action, though the jury found that C. J., in Bowrij v. Bonivl (1H08), 1 this contract had not in fact affected Camp. 3-1 8, that it must be sshowu not the mind of the j^laintifl. ) lJaviei>\. oidy tliat the iilaintitt' had notice of the Mukuha (1885), 29 Ch. D. o96 ; Lvaroyd defendant's immoral caUiiig, but that V. Bracken, [IS94] 1 Q. B. 114. he expected to be paid from tlie proiits , , ,, ,, . . . . , ,iooo\ iA derived from ir, cannot be regarded as (y) L>e Begnis v. Armtstead (1833), 10 ^ . _, ° Bing. 107. ^^^ [i«'J-0 1 ^- B. 700 ; Itcx v. North- {z) G'mtrdy v. Ilichavdwn (1793), ? f /-I oifi rrtt W "^r J cssci, IVl. Jx., m /u parte nom.sonjl802) 7 Ves. 478 ; CMrd v^ ^^-^J.^ ^^^ J^.^^^^ ^^ ^ ^^^irod colonial Hope (18241, 2 B. &_ C. 661 (a deed of .^^^ ^^^ ^^^^ ^^ ^^ "property " within sale of ship m servioe of East India J^^^_^ ,^^_ g_. ^^. ^^^^ Bankruptcy Act, ?TP""^,';o '^" '"V/^;/ M^>m ; 18(59, vesting in the trustee. 2 Bing. 229; Cooper v. l{e\lhj (1829), 2 "^ Rim. 560 (salary of as.sistant parliamen- {p) [1891] 1 Q. B. 594. See the cases tary counsel to Treasury not assignable) ; on this point in notes (A), (/) and (w), R,'v. Charreiic (1849), 13 Q. B. 447; supra,. CONTRACTS IN RESTRAINT OF TRADE. 101 ('].) Coiifracfs ill Rcsfraiiit of Trade. (.'outniots which arc in general restraint of trade are void. Tho origin of tho rule is uncortain, and its exact limitiition was not always undorstood {q). But by the decision in Mitclicl v. Uvj/nol(U [)•), iu the Khig's Bench, in 1711, tlie following principles were established : — (1.) That all contracts in general restraint of trade are void ; (2.) That particular or limited restraints, if for good consideration, are valid. (I.) For a time it was supposed that agreements in any way in restraint of trade must be partial as regards space ; otherwise, even if limited in time, they would be void. Thus, a bond by which a person bound himself not to follow, or be employed in, the business of a coal merchant for nine months after he should have left his employment, was held bad (s). But since the decision of the House of Lords in the Nordenfelt ease, which will presently be referred to, the question of partial restraint has become comparatively unimportant. (2.) The restraint or limitation must be reasonable. This is a question of law for the judge (/) ; and the onus is on the defendant, ((/) As to the difference of opinion, see Jolh)fe V. Broad (1621), Cro. Jac. 5n6. Mr. Parsons sugofests [Vontract, 2. 748) that the law as to restraint of trade grew out of the English law of appren- ticeship, by which no person could exercise any regular trade or handicraft, except after a long apprenticeship, and generally a formal admission to the proper guild. ''If he had a trade, he must continue in that trade, or have none. To relimpiish it, there- fore, was to throw himself out of em- ployment ; to fall as a burthen upon the community; to become a pauper." The principle was not, perhaps, dcfi- juitely laid down until 1711, when Mitchel V. lieymUh was decided ; but it is stated long before the passing of the 5th of Elizabeth — the first reported case bearing date 1415 (2 Hen. V. f. 5, pi. 16) — and at Common Law there was no such restriction. In Clai/i/ate v. Bacheler, reported in Owen, p. 143, the doctrine is based tm the words of Magna Charta. Probably it arose out of the necessity of putting liiuits to the prac- tice of corporations, by bye-laws and otherwise, preventing persons exercising trades, except they were free of the city. See for the history of tiie prin- ciple the judijraent of Bowen, L. J., in Nordcnfeirs Case, [1893] 1 Ch. 6i0. (r) 1 P. W. 181 ; 1 Smith's L. C, 11th ed. 4U6. For reasons of the dis- tinction, IFard v. Byrne (1839), 5 M. & W. 548. (,s) Ward V. Bi/nie ; see note (r). Lord Macnaghten thiuiis that no such absolute rule ever existed, but that the test always has been : Is this covenant reasonable having regard to (i) the public interest, and (ii) the protection of the covenantee "r XordeiifeW s Case, [1894] A. C. pp. 51)8 tt seq. But see Lord HerscheU's judgment, ibid. Ap- parently there is no case in wliich, there being a limitation as to space, the con- tract has been avoided on the ground of unlimited duration. See Hayiies v. Domau, [1899] 2 Ch. 13. [t] Parke, B., in Mallau v. May (1843), 11 M. & \V. at p. 668 ; Tallis v. Tallis (1853), 1 E. & B. 391 ; Muynes v. Doman, [1899] 2 Ch. 13 ; DowdmS; Pook V. Vouk, [19U4] 1 K. B. 45. 102 THE CONSIDERATION. the contractor — at least in cases of partial restraint — to show the unreasonableness {/i). The test will bt- whether tlie limit imposed is in excess of what is requirtMl for tlu' protection of the party in favour of whom it is made, and is injurious, or not, to the public interests (./•). " Whatever restraint," it has been said, "is larger than the necessary protection of the party, can be of no benefit to either; it can only be oppressive; and, if oppressive, it is in tlie eyes of the law unreasonable" (//). Agreements not to carry on business of perfumer and hair merchant within London or West- minster, or 000 miles from the same (~) ; not to be employed as coal merchants for nine mouths (a) ; not to carry on trade as brewer, &e. in Sheflield or elsewhere for ten years (h), have been held void. On the other hand, agreements b}^ vendors of a patent process of manufaeture, not to carry on in any part of Europe a manufacture with the same object as the patent (r) ; not to carry on business as a surgeon within ten miles of a [ilaee for fourteen years {d) ; not to practise as attorney within London or 150 miles of it {(') ; not to carry on business in horsehair within 200 miles of Birmingham (./') ; not to carry on trade as a milkman for twenty- four months within five miles of Northampton Square {(j), have been held valid. In Nordenfrlt v. Maxim Nordenfeli, i^e. Co. {/i), the law on this point was considered by the House of Lords, when the whole doctiine and the principal authorities were examined. The covenant in that ease was um-estricted as to space ; but it was upheld as valid and enforceable by injunction. Lord llerschell, (h) Rousillon v. RonsUlon (1880), 14 («) ll'ard \. ////r«y,' (1839), 5 M. & W. Oh. D. 351, at p. 365 ; Ilayiios v. lionimi, 518. [1899] 2 Oh. 13, per Romer. L. J., at [b) Iliiidc v. Grai/ (1840), 1 M. & G. p. 30 ; Badischo Anilin v. Schott. [1892] 195. :< Ch. 447 ; and the remarks of B'lwen, [c) Leather Cloth Co. v. Lorno)>l (1869), L. J., in Nordcnfeh's Ca.sc, [1893] 1 Oh., L. R. 9 Eq. 345. at i^p. 654 — 656 ; but ace the judgment {d) Davis v. Mason (1793), 5 T. R. of Vautrhan Williams, L. J., in Ihidrr- 118. icood V. Jiarkcr, [18'J9] 1 Oh. 300, at (<■) 7//w« v. Cziy (1803), 4 East, 190. ^%)^jrUc)woek y. Cokcr (1837), 6 A. & J/^ ^^'"'"'' ^- ^«''*''"* ^^^^'^^' '^'^ ^e^^' E. 438, per Tiudal, O. J., at p. 454 ; '*-"■ Roimtlon v. Rnmillon (1880). 14 Oh. D. (.'/) Proctor v. Sargent (1840), 2 M. & 351; Mills V. Lmiham, [1891] 1 Oh. G. 20. As to what is meant by " carry- 576 ; ISudische AniHv, <^-c. v. Se/iott, ing on business," see Tamer v. IJvans [1892] 3 Ch. 447 ; Nordcnfelt v. Maxun (l^-'''-^), ^ E. & B. 512 ; Arery v. Lang- XorUenfclt, 6;c. Co., [1894] A. 0. 535; ford (1854), 23 L. J. Oh. 837; Jones v. Unde>uood\. Barker, [1899] 1 Oh. 300. Heavens (1877), 4 Oh. D. 636. As to (y) Tiu.lal, 0. J., in Hurncr v. Guiees mode of measurement of distance, (1831), 7 Bing. ■; 35, 743 ; see al.so Parke, Alkyns v. Ktnnier (1850), 19 L. J. Ex. B.'s, jud-meiit in ;)/«//«« v. May (1843), 132 ; Duignan v. Walker (1859), 28 L. J. 11 M. i: W. 653. " Ch. 867 ; Moujlet v. Coir (1872), L. R. 8 (z) I'rice V. Green (1839), 16 M. & W. ^^- '^'^■ 346. (//) [1894] A. 0. 535. CONTRACTS IN ItKSTIlAlNT OF TliADi:. 103 discussing the distinction between " general " and " partial " restraints, said (p. 548) : — Whether the cases in which a j^enoral covonaiit can now bo supportoil are to be regarded as excei^tioiis trom the rule, which I think was hjng recog- nised as established, or whether the rule is itself to be treated as inapplicable to the altered conditions which now prevail, is jjrobahly a matter of words rather than of substance?. . . . When once it is admitted that, whether the covenant be general or ]iarti"nlar, the question of its validity is alike determined by the consideration whether it exceeds what is necessary for the protection of the covenantee, the distinction between general and particular restraints ceases to be a distinction in point of law. Lord Watson (at p. 55 !■) says : — A restraint whii^h is absolutely necessary in order to protect a transaction which the law permits in the interest of the public ought to be regarded as reasonable, and cannot, in deference to political ideas which are now obsolete, be regarded as in contravention of public policy. Eegard must be had to tlie eliangiug conditions of commerce {i) ; and the " general " or "'partial " c-haracter of the covenant (/.•), as well as the paiticular kind of business in question, are matters material to the question of " reasonableness " (/). For instance, the protection of a general restraint may well be necessary to the purchase of a secret process (w)- If there be occupations where a sale of the goodwill would be greatly impeded, if not prevented, unless a general covenant could be obfciined by the purchaser, there are no grounds of public policy which countervail the disadvantage which would arise if the goodwill were in such cases rendered unsaleable (//). (j) Per Lord Herschell in XordcnfeWs Doitridge v. Crook (1907), 23 Times L. R. Case, at p. 547 ; per Lord Watson, iAif?.. 644. , „ n^ at p. 553 ; per Lord Macnaghten, ibid., (w) Leather Cloth Co. v. Lorsont (I8b9), atp 571; Budische, cj-c. v. &/*««, [1892] L. R. 9 Eq. 345; Bryson v. If hitehead 3 Ch. 447, at p. 452. (1822), 1 Sim. & St. 74; Hanne, v. (k) Proctor v. Sargent (1840), 2 M. & Boman, [1899] 2 Ch. 13 (a contract of G 20- liadischc Aniiin Y. Srhott, I.e. ; service). See also the remarks ot Parke, NordenfeWs dm, I. c, pp. 548, 549, 553, B., in M,iUan v. Mag (1843), II M. & W. 554 o{)8 et seq. ; Uaynes v. Donian, G53, at pp. 1565, 6CG, quoted by Krle, [189912 Ch. 13; Hood \. Jones, [1899] C. J., in Mumford v. Gethiug (18o9), 81 L T 109. 7 C. B. N. S. 305, at p. 320. See as (/)'ln Leetham v. IVhite, [1907] to injunctions against servants to pre- l Ch. 322, the Court of Appeal veut the use of knowledge gained durmg held a covenant unreasonable and void service, p. 176, infra. on the ground that the restraint ex- («) Per Lord Herschell m .N orrft-w/^/i « tended to businesses in which the Case, I. c., at pp. 548 549 ; Badischc employers were mterested as well as AniUu v. .S>/;o//. [1892] 3 Oh. 44/; m their own particular business. See the both of which cases the workl-wule cha- remarks of Neville, J., on this decision, raeter of the business was made an im- and restraint of trade generally, in portaut consideration. 104 THE CONSIDERATION. The question is : — Is the contract reasonable at the time it is made, witliout regard to contingencies whicli may make it un- reasonable (o) ? It may be that a covenant, reasonable for the protection of the covenantee, may still be void as being injurious to public intere.'^ts. There may, as I understand the law, be cases in which, even though the restraint is not unreasonabk' in th(! interests of the parties concerned, it may of itself be of such a character as to be injurious to the public, and in such cases again the restraint is void (p). There must be a consideration for a contract in restraint of trade. It was once supposed that the consideration must be "adequate." It has, however, long been settled that the Courts will not inquire into the adequacy or sufficiency of the considera- tion ((/). It is enough that it is not merely nominal or colourable. The mere continuance of the engagement (r) is good consideration for such a covenant, as is the original engagement itself (•s'V These contracts are to be interpreted by the ordinary canons of construction ; therefore general words such as " business " — " call upon or solicit orders " — " in any way deal or transact business with " — have been construed by reference to the plaintiff's particuhir business, or the locality where it is being carried on [f). In covenants of this character, the good is severable from the bad part, but only if " the Court find in the agreement itself sufficient ground for making the severance " (k). (o) Ramiiev. Irvine {18U), 7 M. & G., 716; JJavis v. Ma.son (1793),.') T. R. at p. 976; Nordcnfelf s Cane, I.e., -per 118; Btnicell v. Inns: see note {x) \ Lord Maeuaghten, at p. 574 ; Rnxjnes v. Mumford v. Gcthing (1859), 7 C. B. Doman : see note (^■). N. S. 305; Gravely v. Barnard: see (jo) Per Waltou, J., in Tivoli, ^-c. v. note {q). Cry//fy (1904), 20 Time^i L. R. 437. See {t) Milk v. Dunham, [1891] 1 Ch. per Lord Herschell in Xurdcnfelt's Case, 576 ; Ferls v. Saalfeld, [1892] 2 Ch. 149 ; /. c., p. 549 ; per Lord Mucnaghteu, DuhoivsJci v. Goldatein, [1896] 1 Q. B. ibid., p. 565; per Bowcn, L. J., in 'il'6 \ Mocnich v. Fenestrc {\^9'2), Q>\ Ij. 3 . the same case in C. A., [1893] 1 Ch. Ch.737("auytradeorbu8mess") ; vlwry pp. 667, 668. V. Lanijfwd (1854), 23 L. J. Ch. 837 ((?) Uitchvock V. 6'o/.-e>- (1837), 6 A. & ("any trading establishment ") ; Hoody. E. 438 ; Archer v. Marsh (1837), 6 A. & Jones (1899), 81 L. T. 169 (" business"). E. 959: Pilkington v. Scott (1846), 15 {u) V&c Chittj, S ., in Mills y. Dnnham, M. &W.657; Gravehiy. Barnard [\81-i:), [1891] 1 Ch., at p. 580; %ee Frice v. L. R. 18 Eq. 518. Even when the cove- Green (1847), 16 M. & W. 340; Mallan naiit is under seal tliere must be con- v. JI/(/_(/(1843), 11 M. &\V. 653; NichoUs sideration ; Hulton v. Parker (1839), 7 v. Stretton (1847), 10 Q. B. 346 ; Baines Dowl. 739 ; otherwise, semble, the cove- v. Geary (1887), 35 Ch. D. 154; Baker nant would be unreasonable. See notes v. JZenant to retain the plaintiff two or three years in the dtsfendant's service, though the defendant was bound by the express words to pay the plaiTitiff the stipulated wages during those periods, if he performed, or was ready and wdling to perform, the condition precedent on his part. The principle affirmed in the case is highly doubtful. The Courts to- day would no doubt imply a covenant to retain. Dunn v. Sai/Ies (1844), 5 Q. B. «i85. Deed by which plaintiff covenanted that his son should serve the defen- dant for five years from the date of the agreement in the art of a dentist- surgeon, and attend for nine hours a day, ami the defendant, in considera- tion of the services to be peiformed by the plaintiff's son, covenanted to })ay certain wages. Breach, that the defendant refused to permit the son to remain in his service. //(■/'/. on motion in arrest of judgment, that there was no covenant corresponding CONSIUKRATION. vanced to him by certain persons uKiutioned in the agreement and of wages to bo paid by them, agreed to serve them and no one else, without their consent, for twelve months and during and until the expiration of three months from notice of his di- sire to terminate the service. The employers agreed to pay idera- tion that the plaintiff had agreed to become the permanent solicitor of the defendant's company for reward, &c., the company promiseel to retain and employ the plaintiff as such per- manent solicitor, &c. Breach, that the company wrongfully refused to continue him in his emplojnnent as the solicitor of such company. This count not supported by proof of a resolution that plaintiff '"be ap- pointed permanent solicitor to the company " ; " permanent " meaning "no other than a general employ- ment, as distinguished from an occa- sional employment in particular matters " : Wilde, C. J. Second count on an agreement that, " from January then next the plaintiff, as the attorney and solicitor of the com- pany, should receive a salary of 100/. per annum in lieu of rendering an anntial bill of costs for general busi- ness transacted by him for the com- pany as such attorney aiid solicitor, and should for such salary advise and act for the company on all occasions in all matters connected with the company, and he should attentl the secretary and the board of directors when reciuirod." The Court of Common Pleas arrested j udg- ment on a count for wrongful dismis- sal setting forth this agrccmtuit. The Exchequer Chamber reversed the judgment of the Common Pleas; the 108 llli: CONSIDERATION. No CONSIDEKATIUN. to the breach. See, however, Mclutyre V. Bi'lchcr, 32 L. J. C. P. 254 ; ]Voi-t/iin(jf(/n V. Hitd/ow, 31 L. J. Q. B. 134 ; and Crompton, J., in Emmvnti V. EhhrUm, 4 H. L. Cas. p. 624. I'dtpte V. iV), it is said that " every {a) In the Truck Act, 1831 (s 2.5), example: "The standard of wages "wages" is defined as "recompense upon which future advances and reduc- . . . for . . . labour." Read strictly, tious arc to be made shall be the several this would exclude anything but rates actually paid at the respective " wages " in tlie narrowest sen.^e of the collieries for the month of Doceuiber, word. See Chawner v. Cummins [\A^a), 1879; and such wages shall be etpiiva- lS L. J. Q. B. 161 ; Archer v. Jamex lent to a standard uett selling price of (1862j, 31 L. J. Q. B. 153, and the notes 7s. lQ\d. to 8,v. a ton." As to "earn- on the Truck Act, p. 334, infra. See as ings " iu the AVorkraen's Compensation to "sliding scales" of wages. Royal Act, 1897, Sched. I. (1) (a), see Ahram Commissioti o» Labour, 189'2, Group A, Coal Co. v. Souther)), [1903] A. C. 306. vol. i. p. 482. Sometimes a copy of the [b) Vol. v. p. 3(i2, citing I'mchou's sliding scale is printed and put in the Case, 9 Rep. 86 b (which seems scarcely "contract-book," which is signed by in point). See Le Blanc. J., in H. v, each workman. The following is an Shinjield [l^W), 14 East, 547- 110 WAGES AND KEMUNI.KA'IION. such retainer (as a servant) will be presumed to be in consideration of wages uule^s the contrary a^jpears." It has been said, too, that when a man bestows his labour for another, he has a right to recover compensation for that labour (c) . On the other hand, there are authorities which go to show — and this seems the true view — that service, however long continued, creates no claim for remuneration without a bargain for it, either expressed, or implied from circumstances showing an imdorstanding on both sides that there should be payment (r/). It is highly doubtful whether there exists any presumption on the subject ; if it exist, it is not irrebuttable. Service is usually performed in the expectation of receiving wages, and in most cases it would be correct, looking to usage, to say that there was an implied promise to pay them. But one may serve another out of gratitude or affection ; one may intrude one's services upon another, or render them without his privity or assent. It is not uncommon for persons to work for years in the mere hope that they will be remembered by a testator in his will. A person, too, may serve for a time on the understanding that he is on probation, and that nothing is to be paid to him in the meantime. In every contract of hiring and service are presumed a request and promise to pay ; but in a multitude of cases there is, in fact, neither request nor promise. Often the parties never give a thought to their legal position until their relation is ended by a quarrel or death. Tlie question is one of fact : was there an agreement or (c) Pouchct- V. Norman (182')), 3 remuneration was intended. See as to B & C 744 (action by certificJttcd the coutrarv doctrine in the ^Vmerican conveyancer for work done): "The Courts. Wood, 107. The bias of our general rule," said the Court, " is, Courts again.-t mfernng a promise to that any man who bestows his labour pay from the mere fact that services for another has a right of action to arc rendered, is shown by Lamhin-n v. recover compeusation for the labour. Crudm (1841), 2 M. & G. 25:5. (Ser- There are two exceptions to that rule. vant engaged at a yearly salary viz., physicians and barristers." payable quarterly ; about a month (d) Martin, B., in liecve v. Reeve after the termination of one of the (IS.'iH) 1 F.'& r. 280. and Foord v. years of his service, he tendered his iWw/^y (1859), 1 F. & F. 496 ; see also resignation; after another month the Hu/qins \. Hopkhi", note {e). Slaves resignation was accepted ; nothing was who came to this countrv, and who said as to the remuneration for the time brought actions in the time of Lord which had elapsed since the termma- Mansfield and Lord Kcnyon against tiou of the bist year's service. Jfr/d, their masters for remuneration, were that " no new contract arises by impli- always non-suited in the absence of cation of law upon a simple dissolution proof of a special agreemeut to pay. of a special contract of hiring and ser- Hex v. Thame.^ IHUon (178.5), 4 Doug. vice, in respect of services performed 300: Alfred v. Fitzjiunes (1799), 3 Esp. under su(;h .special contract previou.sly 3. In the latter case a ])romisc to pay to its being di-s.^^olved.") See, ou the wages was proved, and it might be in- other haud,^ Ji<'>jley v. Ihmmcll (1836), ferred that, previous to the promise, no 1 M. & W. 500. WORK DONE FOR RELATIVES AND FFIIENDS. 1 I 1 distinct understanding that the person wlio does the work should be remunerated ? Obviously this can be determined only by con- sidering the whole circumstances, the situation and relationship and condition of the parties ; and the character and value of the services performed. When people do work for another with his knowledge — say, labour in his fields, or paint his house — they, as a rule, expect to be paid for it ; the law will infer a ])romi>e to j)ay for such work (r). But this is not inevitable; and the true view seems to be, tliat if a |)Cvson " does work on tlie order of another, under such circumstances that it must be ])resumed tliat lie looks to be paid a.s a )natfi'r of ritjht by him, then a contract would be implied with that person " (./'). This rule may not be of much assistance in determining cases as they arise ; it is difhcult to state any clearer rule as to the circumstances in which the law will raise an implied promise to pay {(j). Work dotir for Relatively and Frieix/.s. Frequently, when work is done for relatives or friends, it is hard to say whether wages or remuneration is due. The difficult}' is one not of law, but of fact, which it is for a jury, on a review of the whole circumstances, to settle. In several American cases, attempts are made to la}' down rules of law as to the circumstances in which it is proper, and as to the relatives for whom it is right to presume that services are or are not rendered for hire. " In all cases," says Mr. Wood, in his La/r of Master and Servant {//), summarising several decisions, " where compensation is claimed for services ren- dered for near relatives, as a father, brother, grandfather, &l'., the law will not imply a promise, and no recovery can be had unless an express contract, or circumstances equivalent tliereto, is shown." " Where the parties stand to each other in the relation of members of the same family, as brothers, father and son, or father and (e) Hig(ji)is v. Hopkins (1848), 3 Ex. circumstances showing' an intention to 166. pay them or an express promise to do , J•^ rnu 1 i> T) 11 1 no **o, tlie office was au lionorarv one : (/ The words of Pollock, C. B., rt/Y/«- y^ „. /,o„,v , t^ ■- r.\ Y- ^ , J ■ in (1801), 4 E-p. 4/ . But ., ,,, .,., , •' 1 : ] .. , , , recently, in a cane ot a business arbitra- 329, 332, may be (luoted : " One cleans ^. A ... ^ j • , ;,,,•' I i. , 4.1 t\ „ A ^ tion, the arbitrator and umpire, who another s shoes : wliat can the other do .,, j. . , ^ ., ,^f , , . ., •) T ►u * 1 e were neither irieuds ot the lititrauts nor but put thera on .-^ is that evidence ot a , ».• »u i i r • ^^ . . £ 1 • •)•> o members ot the leijal pr^itession, re- cimtract to pay for cieaniuiT-'^ &ee i ^.u • v ^^ \ i ■ i \i_ ^ „ , , fr^ ^ /1Q(>)^ f^ „ I. -M covered their tees, it beiiiir held that Brofhhaw v. nai ward (1842), Oar. A: M. ., , • i- . ,„, .,. , r,., / n"oc, .) Tj *.*. tliere was, m such a case, au uni)hed 591; Stoke V Pitminster (U26), 2 iiott. . . f »u • • ,. loo D I/' i;;/i7=;q\ o tjA.*- le-, promise to pay for their services ; Vnniip- 183; ic. V. If ti/hill (1709), 2 iiott. 18o. f j ir i, u n /ioo-\ .>,>.-. i> i\ ' J \ If ton una MoU V. Rutki/ (188/), 20 Q. B. D. {g) In the case of arbitrators it was 48. early decided that, apart from particular (A) p. llo. 112 WAGES AND REMUNERATION. danolif er ; or, if inmates of the same family, thouo-]i only remotely related, tliere is prima facie no implied promise to pay for labour done " (/). All attempts to lay down any rule based upon relation- ship are, it is submitted, futile. A son renders services to his fatlier ; a sister acts as housekeeper to a bachelor brother ; a daughter remains in her father's house after coming of age, and does household work ; a granddaughter goes to reside with her grandfather (/■) ; it is impossible in such cases to determine solely from the relationship of the parties whether there is a right to payment. Ah endless variety of circumstances may affect the answer to the question whether tliere is a contract. Probably no clearer principle can be stated than that which is laid down in Darir.s v. Darie^ (/). The plaintiff and his wife, who boarded and lodged in the house of the defendant, the brother of the plaintiff, and assisted him in his business, sued for reward for their services. The defendant pleaded a set-off for board and lodging. In leav- ing the question to the jury, Williams, J., said, " Neither the services on the one hand, nor the board and lodging on the other, (i) Wood, Law of Master and Scv- vniif, p. 121. At what degree of relationship does the presumjjtion begin or end ? Does it extend to work done by a niece for an aunt or uncle ? After much vacillation on the subject, the Scotch Courts have, according to Lord Eraser (Trratixe of Master and Servant, 2nd ed. p. 21), finally adopted the view that, " when there is a clear proof of 8ervi(!e rendered, and no wages paid, wages are due, unless it be made out that there was an agreement that the services should be gratuitous." See Anderson \ . Halki/ (1847), 9 D. 1222; Thomson V. McBam (1889), 16 R. (4th sor.) 333 ; but see Miller v. Miller (1898), 2r) R. (4tli ser.) 99r). (Jc) See the following American cases : Itidgivay v. English, 22 N. J. 409; Davis v. Goodcnoiv, 27 Vt. 713 ; liohinson V. Cushman, 2 Denio, 149. (0 (1839), 9 C. & P. 87. The follow- ing are some decisions to the same effect: Jenry v. Bush (1814), h Taunt. 302. (Defendant promised to make to the plaintiff, a glazier, if he would take care of ])laintiff's house, open the windows, air it, and show it to persons wlio applied to .see it, a handsome present, and subsequently gave him 2/. Mansfield. C. J., thought there was no evidence of a contract, and that the phiintifi" trusted to defendant'.* gene- rosity. The jury, however, gave a verdict for the plaintiff ; and the Court thought that there was evidence of a contract to do the work for a reasonable recompense.) E. v. Suic (1817), 1 B. & Aid. 178. (An illegitimate child, hired for a year by the wife of the reputed father at .tO.v. wages, continued for three years to do work, but, after the first year, was not paid wages ; held, that tlie sessions were warranted in finding that, after the first year, she was living as a child with her father, and not as a servaut with her master. See remarks of Bajley, J.) Bradshaiv v. Hail ward (1842), Car. & M. 591. (Action for wages by female servant against defendant, an innkeeper ; Cre.ss- well, J., told the jury tliat the question was whether there was a contract of hiring or not, and allowed the defen- dant's counsel to i.toss- examine as to whether plaintiff was not defendant's mistress, with a view to show that there was no contract of service.) Foord v. Murh'ii (1859), 1 F. & F. 496. (Plaintiff lived with defendant as a housekeeper; nothing said as to wages ; but plaintiff received board and lodging, and was at liberty to keep fowls. &c. Plaintiff' left defendant, but returned, and nothing was .said as to wages: ruled liy Martin, B., that it was for th(> plaintitt' to esta- blish that there was an understanding or contract as to whether she should be paid wages.) See also R. v. St. Mary, 2 Boll. 275; li. v. Stokesley {\Yd&),\ T. R. 757; R. v. Lonqwhatton {\1^;>,), 5 T. R. 447. As to board, Niehols v, Coolahan, 10 Met. Mass. 449. WORK DONE I5Y PERSONS OF .SKILf.. 1 \-i can be charged for, unless the jury are satisfied that there was a contract." Such a contract must, it is submitted, be proved, in the ordinary way. Wor/i done hij Persons of Skill in the Exercise of f/ieir Profession. English law knows almost nothing of the difference between liberal and illiberal professions, which plays so important a part in Koman law.. In the latter the liberalia sfiulia included the professions of rhetoricians, grammarians, geometers, secretaries, librarians, schoolmasters {ni) ; for their services no remuneration was presumed. With the exception of the services of barristers, already referred to, no such distinction exists in English law. Perhaps, indeed, a difference of fact may exist between certain kinds of skilled and unskilled labour. The latter may more often be given gratuitously. In the great majority of instances, a person who does work and employs professional skill for the benefit of another, will be entitled to reasonable remuneration, even if there be no express agreement ; the inference being generally irresistible in regard to skilled work, that it was understood such services were to be paid for {ii) . Here, too, however, there is no absolute presumption in law. Bemnneration left to Eniploijer's Discretion or Arbitrament of Third Person. It may be plain that the intention was to pay wages for services, and nothing be agreed as to their rate or amount. In such a case the law will imply an agreement to pay what is reasonable, liaving regard to local usages, the cm-rent rate of wages, the skill of the workman, and the uatm'e of the work. (»i) Dig. 50, 13, 1 ; and see Kennedy were rendered gratuitously ; direction V. Broun (1863), 13 C. B. (N. S.) 677. by the judge that the plaintitt' was entitled to a verdict unless the defendant (ff) Brown v. Nairne (1839), 9 C. & P. made out that the services were to be 264. (Action by broker for procuring given gratuitously ; hdd, a misdireo- charter; no special agreement as to tion, and the true question for the jury remuneration; left to the jury to say was, whether, takuig all the evidence what was the customary remuneration, together, the phiiutitf was to be paid or, if no custom, what was reasonable for his services. Baron I'arke's dictum, remuneration.) Huiyeston v. Kelly "• If the defendant makes it doubtful (1849), 18 L. J. Ex. 3G0. (Action for only whether the services were to be work and labour by an attorney who gratuitous, it is enough," seems open had rendered professional services to to question. The rule seems to be that defendant at a contested election ; evi- the burthen of proof is always on the deuce by defendant that the services plaiutitf.) 114 WAGES AND REMUNERATION. A servant may leave it to the discretion of his employer to say whether ho is to be paid. If it be clear from the terms of the agreement or the whole circumstances that the employer is the sole judge whether any and, if so, what remuneration is to be paid, no action will lie : the servant cannot oven claim to recover reasonable remuneration for what he has done. Nulla pronii.s-sfo potest con- sisteir, qiice ex vohintate promiftentis stat/im capit. Thus, a person who had rendered services to a committee under a resolution that " any service to be rendered by him should be taken into con- sideration, and such remuneration be made as should be deemed right," was incapable of recovering for his services (o). It is a question for the judge, if the contract be in writing, and for the jury, if otherwise, to say what was the intention of the parties, and whether it was intended that remuneration should be claimed as a right. If wages or remuneration are made dependent on the certificate of a third person, it must be procured before an action can be brought. In other words, the obtaining of tlie certificate is a con- dition precedent. Thus, in Owen v. Bowen (p), where the agree- (o) Taylor v. Brewer (1813), 1 M. & S. 290; see also Peacock v. Peacock (1809), 2 Camp. 65. (A law-statioucr said to his sou, ou bis coming- of age: "You shall have fifteen shillings a week until October ; the books must then be made up, and j'ou shall have a share ; we need not talk of the share until October comes; we shaU settle it then;" held by Lord Ellenboroiigh that the son was entitled to some share, and that it was for the jury to say what was a just and reasonable proportion.) Bryant v. Flu/ht (1839), 5 M. & W. 114. (Plaintiff wrote to defendant as follows: "I hereby agree to enter your service as a weekly manager, commencing next Monday, and the amount of payment I am to receive I leave entirely to you ; " held (Parke, B., dissenting), that the defendant was bound to i)ay the plain- tiff something for his trouble, and that the jury, in an action on a quantum meruit, might decide what the defi;n- dant, acting bona fide, would or oiight to have awarded.) Roherts\. Smith (1859), 4 H. & N. 315. (Plaintift' agreed to accept post of secretary to a company at a salary of two hundred pounds, " com- mencing at the present date, if the company be completely registered, and put into operation ; if not, I shall be satisfied with any remuneration for my time and trouble you may think me deserving of and your means can afford." Defendant replied: "It is distinctly agreed and understood that if the com- pany is not formed and carried out, that part of your letter which alludes to your salary be null and void, and that at the expiration of three months it is entirely left to me to give unto you such sum of money as I may deem right as compensation for labour done, in the event of the company not being carried out, or of making any further advance for the continuing of the same." The company was not registered or " carried out." No action lay for salary or com- pensation.) Ex parte Metcalfe (1856), 6 E. & B. 287. (Refusal to grant man- damus to Local Board of Health to pay reasonable remuneration to a person who presided at the first election of the board ; the board having, under the 11 & 12 Vict. c. 63, s. 30, discretion as to what they thought reasonable.) Bird V. McGahey (1849), 2 C. & K. 707; liaivlings v. Chandler (1854), 9 Ex. 687. {p) (1829), 4 C. & P. 93; see also London Tramway Co. v. Bailey (1877), 3 Q. B. D. 217 ; and as to the power, under the Master and Servant Act, 1867, and Employers and "Workmen Act, 1875, to rescind arbitration clauses : Wihon v. Glasgoiv Tramtcay Co. (1878), 5 R. 981. WORK DONE FOR ORATUITIES, ETC. 115 ment was that the amount of remuneration should be left to a third person, an action for the recovery of wages failed because it did not appear that he had been requested to fix the wages. So, in Morgan v. Birnie (q), an action having been brought against the defendant, who had agreed to pay for buildings erected by the plaintiff, on production of the architect's certificate that the work was done to his satisfaction, it was not sufficient that the architect had checked the plaintiff's charges and had sent thorn to the defen- dant ; there was no certificate, and the action therefore did not lie (r). Gratuitios, cnnl Work done hi E.q)cctation of Legacies. No action will lie to recover gifts or gratuities. It is not always easy, however, to ascertain what are gifts or gratuities ; that a particular sum is spoken of as a gratuity does not necessarily decide that it is not of the nature of wages («) , Presents or gratuities to a servant under age cannot be deducted by a master from wages. Thus, in one case in which a master gave to a maid of all work a silk dress, and paid for coach fares to her mother's house, it was held that he could not deduct these sums from her wages {t). Sometimes a share in the profits forms part of the remunera- tion {n) ; or there is an express contract to pay a bonus, though more often such bonus is given gratuitously. Sometimes there is a contract to pay by way of premium an additional sum for extra- ordinary care and intelligence ; or there is an " allowance," e.g., to miners in respect of the difficulties or dangers of a particular seam. Certain servants — some classes of waiters, for example — are paid no wages ; they depend on " tips " from customers ; they {q) (1833), 9 Bing. G72 ; Mofatt v. position of a judge, he must act as 7)u7.-.sort (1853), 13 C. B. 375; Foihcsv. a judge ought, in accordance Avith J/t/«<' (lS-27), 6 S. 75. (Lady engaged the principles of natural justice: Arm- a servant on condition that he obtained xtroi/i/ v. South Loudon Traimcays Co. a certificate of character from his last (1890), 64 L. T. 96. employer ; no cause of action unless (.<) Lake v. Campbell (1862), 5 L. T. such certificate obtained.) (N. S.) 583; Far/cer v. Ibbetson (ISbS), {)•) An action will lie against an 27 L. J. C. P. 236. architect for fraudulently refusing to {t) Hedgley v. Holt (1829), 4 C. & P. certify [Ludhrool- v. Barrett (1877), 46 104. L. J. C. P. 798) ; or against the em- («) See pp. 44 — 45, supra. In The ployer of the architect fur procurement Blessiuff (1878), 3 P. D. 35, remuuera- of or collusion in the fraudulent refusal tion out of the profits of a fishing voyage to certify : Batterbury v. fyse (1863), was held to be wages as to which the 32 L. J. Ex. 177. See Hudson on County Court had jurisdiction. The Building Contracts (3rd ed.). pp. 415— servant iu such a case has a right to an 418. If the third person is in the account. i2 116 WAGES AND REMUNERATION. are, to use the expression of Littledale, J., " servants upon expecta- tion of gratuities" (.r) ; other servants depend more or less on gratuities from masters (//) . In many working rules are promises of certain extras, e.rj., " walking time," " lodging money," " grind- ing money," "black money," or "dirty money," or injury to clothes. We need not examine here all rendered in expectation of a legacy. be extracted from the authorities, appears to be whether the person who rendered the services trusted to the generosity of him for whom he worked, or whether there was an implied understanding (or, to be more accurate, a contract), that remuneration was to be given him (;:). If the work were done on the strength of the expectation of a legacy, and executors were to pay such claims, they might be disallowed in their accounts («). the decisions as to services Few general principles can The question in every case Remuneration for Work done under a Contract Terminated hy Mutual Consent, ^c. If a contract of hiring and service be dissolved by mutual consent, a servant may recover wages pro rata. Such also is the case when he is dismissed without proper cause before the end of {x) In Laugher v. Pointer (1826), 5 B. & C. 547, 555. The question has been raised under the Workmen's Compensa- tion Act, 1906, whether "tips" form part of a waiter's " earnings " : Perm v. Spiers ^- Pond, Ltd., [1908] 1 K. B. 766. (y) See as to perquisites known as "lambing money" and "Michaelmas money," Report of Labour Commission, 1893—94, vol. XXXV. p. 29. [z) Le Sac/e v. Coussmaker (1794), 1 Esp. 187. (Assumpsit for work and labour by a stockbroker ; defence that the services were gratuitous, and done solely with a view to a legacy : held by Lord Kenyon, that it was a question for the jury.) Oshorn v. Governors of Gmfs Hospital (1726), 2 Stra. 728. (Action for work and labour in trans- acting Mr. Guy's stock affairs. Ray- mond, C. J., directed the jury to decide what was the imderstandiiig between the parties ; "a man who expects to be made amends by a legacy, cannot after- wards resort to his action.") Baxter v. Gray (1842), 3 M. & G. 771. (Action for work and labour by a surgeon against ex ecutors of a lady whom he had attended ; no bill was sent in during the lady's life- time, plaintiff being in hopes that she would leave him a legacy ; jury gave plaintiff 250/'. damages. Court refused to disturb the verdict Tindal, C. J., ob- served : " The plaintiff probably hoped and expected to receive a legacy ; but, this hope failing, I see no reason why he should not be held to be remitted to his legal right." " The ordinary pre- sumption is that services are rendered in expectation of a remuneration, unless the contrary is proved : " Coltman, J.) Shallcross v. Wricjht (1850), 12 Beav. 558 ; BnUinger v. St. Albrjn (1879), 41 L. T. (N. S.)406; Maddison v. Alder son (1883), 8 A. C. 467. {a) As to bequests in satisfaction of wages, see Roper on Legacies, 4th ed. 1026 and 1053 : also Chaucy's Case{H\l), 1 P. W. 408. (A master being indebted to his man-servant for wages, 100/., gave him a bond for the 100/., as due for wages, and afterwards, by will, gave 500/. for long and faithful services. Lord Chancellor King held that this was not in satisfaction of the bond. The testator had by his will directed that all debts and legacies should be paid.) REMUNERATION FOR EXTRA WORK, OR OVERTIME. 117 the term (tliougli lie may also recover damug-cs calculated with reference to the loss he has sustained) ; or, wlien a servant, without having actually done all which he agreed to do, has performed services which are of value, and by which his master has benefited (b). Jicmuneration for Extra Work, or Overtime. What is a day's work is to be ascertained by reference to the agreement, or to custom. Failing that, it is a question of what is reasonable in the circumstances. Of course, a servant must be allowed a reasonable time to eat and sleep (c). Whether a servant must work on Sunday depends also on the nature of his employment and usage {d). A servant may recover remuneration for work done out of hours, or outside the scope of his regular employment {e). But in order to entitle him to recover, the services must clearly be not such as he is bound to perform under his contract of hiring and service ; tlie services must be wholly different from these either in kind or amount. Otherwise an agreement for extra remuneration will be nudum pactum; there will be no consideration for it (a promise to do what one is bound to do forming no consideration), and it will not be enforced (,/"). Harris v. Carter {g) illustrates this principle. The {b) See as to this, Farnsxcorth v. tiff acted as deputy to clerk of commis- Garranl {\?>Q1), 1 Camp. 38; Munro v. sioners of land tax, at salary of 100/. Butt (1808), 8 E. & B. 738; and the New duties afterwards imposed upon notes to Gutter v. Powell, Smith's L. C. the plaintiff : held .-—that this raised no vol. ii. 1. implication that servant was entitled to (c) 7/"i7.so» V. ), and the Metalliferous Mines Regulation Act {(■), it is enacted that wages shall not be paid at any public-house or beer- shop to persons employed in or about any mine to which the Acts apply {(l); and by the Payment of Wages in Public-houses Pro- hibition Act, 1883 (e), these provisions are extended so as to include any " workman " as defined by sect. 2 of that Act. The Truck Act, 1887 (./'), makes illegal contracts imposing as a condition of employment any term as to the place at which, or the manner in which, or the person with whom any portion of the wages is to be expended. («) 57 & 58 Vict. c. 60, s.". 134, 1.3o. County Courts which have Admiralty (z) 1 &'iWill. IV. c. 37 ; 50 & 51 Vict. jurisdiction may entertain claim.s for c. 4(5 ; 59 & 60 Vict. c. 44 ; see part ii. waj^es when amount claimed does not p' 33{_ exceed 150/. ; but see Merchant Ship- ' {a) See at p. 334, infra. There is a ping Act. 1894, s. 165. As to remedies similar provision in the Hosiery Manu- of married women, see p. 66, supra. facture (Wages) Act, 1874(37 & 38 Vict. As to infants' remedies for wages, see c. 48); and see sect. 12 of the Stannaries R. S. C. Ord. XVI. r. 16 (infa,nts to Act 1887. sue as plaintilfs by their next friends) ; (Ii) 50 & 51 Vict. c. 58, s. 11 ; sec County Court Rules, 1903 and 1904, partii. p. 386. Ord. III. r. 10; Ord. V. r. 16 (next (c) 35 & 36 Vict. c. 77, s. 9 ; see friend to be responsible for costs) ; part ii. p. 366. 51 & 52 Vict. c. 43, s. 96 (infant {(I) Wages may be recovered in the may sue for "any sum of money not County Courts, or proceedings may be greater than one htuulred (3 Edw. VII. taken under the Employers and Work- c. 42, s. 3) pounds which may be due to men Act, 1875 (38 & 39 Vict. c. 90, s. 4) him for wages or piecework, or for work [vid. p. 612, infra). As to recovery of as a servant, in the same manner as if wao'es of seamen, see 57 & 58 Vict. c. CO, he were of full age "). 88. 164—167 ; 43 & 44 Vict. c. 16, s. 11 ; (e) 46 & 47 Vict. c. 31. 31 & 32 Vict. c. 71, s. 3, sub-s. 2. (/) Sect. 6 ; see part ii. p. 345. EFFECT OF BANKRUPTCY AND WINDING-UP ON WAGES, ETC. 127 Effort of Bnnhrnpicii and Windincj-vp on Wn(jcH and Salaries. There was formerly considerable difference of opinion as to whether, under sect. 10 of the Judicature Act, 1875, the rules as to priority of debts in bankrui)tcv ap[)lied in the case of winding-up eorapauies (r/). But the point lias now been settled by legislation. The Preferential Payments in Bankruptcy Act, 1888 (A), provides as follows : — Sect. 1 (1). In the distribution of the property of a bankrupt and in the distribution of the assets of any company being wound up under the Com- panies Act, 1862, and the Acts amending the same, there shall bo paid in priority to all other debts — (b) All wages or salary of any clerk or servant (/) in respect of services rendered to the bankrupt or the company during four months before the date of the receiving order {k), or, as the case may be, the com- mencement of the winding-up, not exceeding fifty pounds ; and (c) All wages of any labourer or workman (/) not exceeding twenty-five pounds, whether payable for time or for piece-work, in respect of services rendered to the bankrupt or the company during two months before the date of the receiving order (A;), or, as the case may be, the commencement of the winding-up : Provided that when any laboui'er in husbandry has entered into a contract for the payment of a portion of his wages in a lump sum at the end of the year of hiring, he shall have priority in respect of the whole of such sum, or a part thereof, as the Court may decide to be due under the contract, propor- tionate to the time of service up to the date of the receiving order, or, as the case may be, the commencement of the winding-up (m), (2) The foregoing debts shall rank equally between themselves, and shall be paid in full, unless the property of the bankrupt is, or the assets of the company are, insufficient to meet them, in which case they shall abate in equal proportions between themselves. (3) Subject to the retention of such sums as may be necessary for the costs {g) See Re Association of Land App. to this chapter. Financiers (1881), 16 Ch. D. 373 ; In re (/.:) Means " interim receiving order," Williams (1887), 36 Ch. D. 573, 582. if there be such: Ex parte Fox, In re {h) 61 & 52 Vict. c. 62. 8mith (1886), 17 Q. B. D. 4. (i) A secretary to a company may be {I) Ex parte AUsop, Re Disnci/ {IS7 5), a "clerk or servant" within this sec- 32 L. T. (N. S.) 433 (a decision on the tion ; but a .secretary, who does not same words in the Bankruptcy Act, give his whole time to the service of the 1869). company, and discharges the general (m) Sect. 3, sub-sect. (18) of the Bank- duties of his office by a clerk appointed ruptcy Act, 1890 (53 & 54 Vict. c. 17), and paid by himself , is not a " clerk or enacts: "No composition or scheme servant" within the section : Cnirney v. shall be approved by the Court, which Back, [190G] 2 K. B. 746. See the does not provide for the payment in decisions on 6 Geo. IV. c. 10, s. 48 ; priority to other debts of all debts 5 & 6 Vict. c. 122, ss. 28, 29 ; 12 & 13 directed to be so paid in the distribution Vict. c. 106, ss. 168, 169, cited in of the property of a bankrupt." 128 WAGES AND K'KMrNF.RATIOX. of administratiou or otherwise, the foregoing debts shall bo discharged forth- with, so far as the property of the debtor, or the assets of the company, as the case may be, is or are sufBcicnt to meet them. (5) This section, so far as it relates to the property of a bankrupt, shall have effect as part of section fortj' of the Bankruptcy Act, 1883. (6) This section shall apply in the case of a deceased person who dies insolvent, as if he were a bankruj^t, and as if the date of his death were sub- stituted for the date of the receiving order. By sect. 3 this Act applies only to bankruptcies and windings up com- menced after December 31, 1S88. Sect. 6 repeals the Companies Act, 1883; sect. 40, 8ub-scct. (1) and (2) of the Baukruptcj* Act, 1883, and the Bankruptcy (Agricultural Labourers' Wages) Act, 1886 («). It is provided by the Preferential Payments in Bankruptcy Amendment Act, 1897 (o), as follows : — Sect. 2. In the winding-up of any company under the Companies Acts, 1862, and the Acts amending the same, the debts mentioned in sect. 1 of the Preferential Payments in Bankruptcy Act, 1888, shall, so far as the assets of the company available for the payment of general creditors may bo insufficient to meet them, have priority over the claims of holders of debentures or debenture stock under any floating charge created by such company, and shall be paid accordingly out of any projierty comprised in or subject to such charge. Sect. 3 gives a similar priority to these debts over any claim for principal or interest in respect of debentures or debentui'e stock, in case of a i-eceiver having been aj^pointed or possession having been taken on behalf of the debenture holders. The making of a winding-up order by the Court, or the appointment of a manager and receiver, discharges the servants of the company (p) ; and that, though the liquidator may con- tinue to employ them in analogous duties with a view to reconstruction (*/). The circumstances may afford evidence of a new contract ; but, to be acted on by the Courts, that evidence must be clear and satisfactory (>•). But a resolution for the voluntary winding-up of a limited company does not operate as a notice of discharge to the servants of the company (s). (n) Sect. 2 saves the priority given (-/) MuvBowalVs Case (1886), 32 Ch. D. by the Friendly Societies Act, 1896 366. (t59 & 60 Vict. c. 25), s. 35, to the claim , \ t^ ^ c ? t, r ^ i ■ , 1 •ii.-uj e in Ji'X parte Cichumann, Re Forster for society 8 money m the hands oi a iioq-\ r -o ^c\r mn x. ^ i Va: ™ T- > x-j j » (188/), L. K. 19 Ir. 240. bankrupt omcer : Lx parte J'Amonds, Me ^ '' Atkins, 61 L. J. Ch. 406; Ex parte [s) Midland Counties District Bank, Swansea, <^-c. (1879), 11 Ch. D. 768. Ltd. v. Atticood, [1905] 1 Ch. 357. As (o) 60 Vict. c. 19. to the effect in this respect of the dis- [p) Chapman^ s Case{\%Q>&), 1 Eq. 346; solution of a partnership, or the death Reid V. Explosives Co., Ltd. (1887), 19 of a partner, see Brace v. Calder, [1895] Q. B. D. 264 (the appointment of a 2 Q. B. 253 ; rhiUips y. Alhambra Palace manager and receiver). Co., [1901] 1 K. B. 59, and p. 206, i)ifra. EFFECT OF BANKRUPTCY A\D WINDING-UP ON WAGES, ETC. 129 Eule 106 of the Companies Winding-up liules, 1890, permits, in eases where there are numerous claims for wages by employees, that the claims should be made through a foreman or other person on the employees' behalf. By sect. 53 of the Bankruptcy Act, 1883 (t), it is enacted that : — (1) Where a bankrupt is an officer of the army or navy, or an officer or clork otherwise employofl or engaged in the Civil Service of the Crown, the trustee shall receive for distribntion amongst the creditors so much of the bankrupt's pay or salaiy as the Court, on the application of the trustee, with the consent of the chief officer of the department under which the pay or salary is enjoyed, may direct .... (2) Where a bankrupt is in receipt of a salary («) or income (x) other than aforesaid, or is entitled to any half-pay, or pension, or to any compensation granted by the Treasury, the Court, on the application of the trustee, shall from time to time make such order as it thinks just for the payment of the salarj', income, half-pay, pension, or compensation, or of any part thereof, to the trustee to be applied by him in such manner as the Court may direct (?/). Sect. 83, sub-sect. 2, of the Act of 1883, excepts from property divisible among the creditors, " The tools (if any) of his (the bankrupt's) trade, and the necessary wearing apparel and bedding of himself, his wife, and children, to a value, inclusive of tools and apparel and bedding, not exceeding twenty pounds in the whole " (z). Servants need not wait for payment till the trustee has examined the debtor as to his affairs {a). If an employer becomes bankrupt before the expiry of the period fixed by the contract of service, the servant may prove for the full amount of salary that would have become due had the contract been performed (b). See as to the preferential rights of a workman to money due as compensation for accident in an employer's bankruptcy, Work- men's Compensation Act, 1906, s. 5, sub-s. (3) (bb). (t) 46 & 47 Vict. c. 52. TTntton (1884), 14 Q. B. D. 301; and {u) Includes annual salary of a com- see In re Rogers, [1894] 1 Q. B. 425 (a mercial traveller terminable at week's dentist in partnership). notice : Ex parte Brindle, In re Ihindle (y) See ' ' contracts for assignment of (1S87), 56 L. T. (N. S.) 498; (actor's salary " on p. IQO, supra. salary) Ex parte Shine, In re Shine, {z) And see sect. 122, sub-sect. (4) of [1892] 1 Q. B. 522; (but not a collier's the Act. wayes) Ex parte Lloyd, In re Jones, {a) Ex parte Powis (1873), 17 Eq. [1S91] 2 Q. B. 231. 130. {x) Does not include the earnings of (i) Yelland's Case (1867), 4 Eq. 350 ; a " bone-setter," dependent on his per- Clark's Case (1869), 7 Eq. 550. sonal skill ; Ex parte Benwell, In re {bh) See infra, pt. ii. M. 130 WAGES AND REMUNERATION. Attachment of Wages. The Wages Attachment Abolition Act, 1870 (r), s. 1, enacts " that, after tlie passing of tliis Act, no order for the attachment of tlie wages of any servant, labourer, or workman shall be made by the judge of any Court of Record or inferior Court " {d). A receiver cannot be appointed of the future earnings of the judgment debtor (e). By sect. 163 of the Merchant Shipping Act, 1894, it is enacted : — (1) As resi^ects wages due or accruing to a seaman or apprentice to the sea service— (a) They shall not bo subject to attachment or arrestment from any Court. (d) A payment of wages to the seaman or apprentice shall be valid in law notwithstanding any previous sale or assignment of those wages or any attachment, incumbrance, or arrestment thereof. Executors, Lcfjacies, (!^t. Notwithstanding some dicta to the contrary, servants do not seem entitled to any preference for their wages from executors (/). It was in effect laid down by Lord Ilardwicke in Richardson v. Grcesc ( to a company not " wages" of a " ser- \9) \^*-^^), -^ -f^-iK. oy. vant " within the Act) ; Marks \. Booth {h) Cited in Mathews v. Mathews (1891), 90 L. T. J. 302 (clerk's salary (1755), 2 Ves. Sen. at p. 636 ; Wilhams already due not protected by Act) . See on Executors (9th ed.), 1163, 1164, Booth V. Trail (1883), 12 Q. B. D. 8, n. {z) ; Roper on Legacies, 1053. And where Stephen, J., expresses the opinion see Vhancey\ Case (1717), 1 P. Will. 408. RECOVERY OF WAGES. 131 Recover'/ of Wages. The Employers and Workmen Act, 1875 (/), contains provisions for tlie recoverj of wages. Infants sue as plaintiffs by their next friends (/.) ; but the County Courts Act, 1888 (s. 00) specially provides that : — It shall be luwl'iil for any person under the age of twenty-one years to prosecute any action in the Court for any sum of money not greater than one hundred (3 Edw. VII. c. 42, s. IJ) pounds which may be due to him for wages or piece-work, or for work as a servant, in the samo manner as if ho were of full age (/). Where under sect. 86 of the County Courts Act, 1888, the leave of the judge or registrar is required for the issue of a default summons, such leave may be given in all cases except where the affidavit in support of the application (m) discloses " that the defendant is a domestic or menial servant, a labourer, a servant in husbandry, a journeyman, an artificer, a handicraftsman, a miner, or any person engaged in manual labour," in which case no leave shall be given {u) ; but no such leave is required, even in cases where the claim does not exceed 5/., if the action be for the price, value or hire of goods sold and delivered, or let on hire to the defendant, to be used or dealt with in the way of his trade, pro- fession, or calling (o). By the Admiralty Court Act, 18G1 {p), jurisdiction is given to the Admiralty Court to deal with masters' and seamen's claims for wages. Before the passing of the Act, the Admiralty had, in the case of a special contract, no jurisdiction. County Courts which have Admiralty jurisdiction may entertain claims for wages up to 150/. ((/). Sect. 164 of the Merchant Shipping Act, 1894, provides that a seaman or apprentice to the sea may sue for wages due to him up to 50/. before a court of summary jurisdiction. By sect. 165, no ((■) as & 39 Vict. c. 90, ss. 3, 4 and o. («) Ord. V. r. 15 (C. C. Rules, 1903 See part ii. and 1904). And see, as to leave to enter ii\ -D a r< /-> 1 v\TT in rt n a plaiut under sect. 74 of the C. C. Act, (k) R. b. C, Ord. XV i. r. 16; 0. C. ,ooo • e i e r^ n -D 1 loon nk ^ ttt i rv o r\ j 17 1888, m cases 01 servants, &c., C. C. Rules, 1889, Ord. III. r. 10. See Ord. V. -r, i mriQ ;i ion. o i \t io ,„ ' , ' , Rules, 1903 and 1904. Ord. V. r. 13 r. lb, as to costs. ^^^^^ ^j ,j ^^^^ ^^^^^ ^^^ ^^^^ g g_ {I) This power is specially saved by u) County Courts Act, 1888, s. 86, Ord. III. r. 10 and Ord. V. r. 16 (C. C. sub-s. (6). . > . Rules, 1903 and 1904). (^) 24 Vict. c. 10, s. 10. [m) See Form 10 B ; Gordon v. Evans, [q) 31 & 32 Vict. c. 71, s. 3, sub-s. (2) ; [1894] 1 Q. B. 248. The Blessing (1878), 3 P. D. 36. k2 132 WAGES AND REMUNKR ATFOX. seaman or apprentice to the sea may sue for wages not exceeding 50/. in tlie Sui)erior Coui-ts or County Com-ts sitting in Admiralty except in certain specified cases (r). *' For practical purposes when the claim is under 50/., tlie plaintiff has no proceedings in rem open to him or means of enforcing his maritime lien. On the other hand, as several claims for wages by different persons, members of the same crew, can be joined in one suit in Admiralty, in any important case the claim is sure to exceed 50/. ; and above that amount and up to 150/., the County Court, sitting in Admiralty, has jurisdic- tion (.s)." The time at wliich wages vest was the point considered in Buff 0)1 V. T/io))/jm)H (/). If the ship has been demised by the registered owner, the action in jjersonani for wages will lie against the charterers {u). Claims for wages are subject to the Statutes of Limitations, 21 James I. c. 16, and (as to seamen's wages) to 4 & 5 Anne, c. 13, ss. 17, 18, and 19, and are barred after six years. In one case a steward, who had permitted liis master to retain his salary from time to time in his hands, was allowed after his master's death in an administration action to claim in account arrears of salary for twenty years (.r) . It is laid down in several cases, that if a servant has left his employer's service a considerable time without making a claim for wages, payment of all wages will be presumed. Such a view was stated by Abbott, C. J. (//), Parke, B. (;:), and Graselee, J. [a) ; but the proposition does not appear to be one of law, but merely an inference of fact, almost irresistible in the case of servants who are wont to be paid weekly or at other short intervals. (>•) This conflicts with 24 Vict. c. 10, in an action by executor of master, held 8. 10. that the steward might claim in account (a) Raikes & Kilburn's Admiralty his salary for twenty years.) See also Jurisdiction in Coxnty Courts (1896 ed.), Banner v. Berridye (18S1), 18 Ch. D. 31. See as to recovery of wages where 254. Rishton v. Grisscll (1870), L. R. .seaman has been lost with ship, Mer- 10 Eq. 393; 18 W. R. 821. (The chant Shipping Act, 1894, 8. 174 ; and plaintiff, defendant's manager, was held as to seaman's right of distress for not entitled, in absence of fraud, to wages, ibid., s. 693. interest on each overbalance from the [t) (1869), 4 C. P. 330, where they year at which it was ascertained, but were held to have vested at the end of only from the time of demand.) Pearse each month under an agreement in the v. Green (1819), 1 Jac. & W. 135 ; 'feed ordinary form. See o7 & 58 Vict. c. 00, v. Beere (1859), 24 L. J. Ch. 782. 88. 114 et nqq. By sect. 383, in fishing- (y) See iSeUen v. Norman (1829), 4 C. & boat agreements wages accrue from day P. 81«; Lucas v. Nodisiliski (1795), 1 to day. Esp. 296. Interest not allowed on [ti) Meiklereid V. TFest {1876), 1 Q. 13. claims for work and labour: Trelawney D. 428. V. Thomas (1789), 1 H. B. 303; Mikom {x) Re Jlatv/cins (1880), 28 W. R. 210. v. Howard (1821), 9 Price, 134. (It was the practice of a master and (2) Goityh v. Findon (1851), 7 Ex. 50. steward to allow the steward to retain [a) Sellen v. Norman (1829), 4 C. & P. his salary out of money in his hands ; 80. APPENDIX. 133 are made By the Apportionmeut Act, 1870 {b), salaries apportionable. Insurance of Wages. Insurance of seamen's wages is said to be invalid as being contrary to public policy {c) . On the other hand, it was always permissible for a master to insure his wages {d) . Deductions from Wages. This question is dealt with by several statutes {e) . {b) 33 & 34 Vict. c. 35, s. 2. {cy The Juliana (1822), 2 Dod. 509; The Neptune (1824), 1 Hag. 239. {d) King v. Glover (1806), 2 B. & P. N. R. 206. Seamen were not allowed to insure their wages, chiefly because their wages depended on earring freight. This being no longer the case, is the rule in force ? {e) See Truck Acts (printed in pt. ii., infra), 1831, ss. 5, 23, 24; 1887, ss. 3, 5, 7, 8, 9, 13 (2) ; 189G, the whole Act; Coal Mines Regulation Act, 1887, «. 12 (pt. ii., infra) ; Hosiery Manufacture (Wages) Act, 1874, Avholo Act (pt. ii., infra) ; Employers and "Workmen Act, 1875, s. 11 (pt. ii., infra); and the notes thereon. See also Merchant Shipping Act, 1894, ss. 132, 133, 140, 158—161, 182, 183. See as to deductions from wages on the question of "earnings" under Sched. I. (1) (^) o^ ^^^ Workmen's Compensation Act, 1897 (now 1906), Ahram Coal Co., Ltd. v. Southern, [1903] A. C. 306. APPENDIX. Banh'uptcij and icinding-up : (see p. 127, n. (/), supra). Servant. Ex parte Neal{lS'29), Mont. & Mac. 194. Traveller engaged at annual salary, within 6 Geo. IV. c. 16, s. 48. Ex parte Gotigh (1833), 3 D. & C. 189. A clerk, though at the time he was engaged his master was not a trader within the meaning of the Bankruptcy Acts, if the petitioner was, in fact, at the time of the com- mission, clerk to such a trader. Ex parte Humphreys (1833), 3 D. «& C. 114. A general hiring of a clerk, with the reservation that the wages are to be paid weeklv within 6 Geo. IV. c. 16, s. 48. Ex parte CoJhjer (1834), 2 Mont. & A. 29. A manager of a cotton mill paid so much a year in w(>ekly sums. Ex parte Sanders (1830), 2 Mont. & A. 684. A clerk compelled to leave the bankrupt's service several months before the bankruptcy on account of his master's inability to pay salary, and his master having Not Servant. Ex parte GreUier (1831), Mont. 264, reversing Mont. & Mac. 95. Under 6 Geo. IV. c. 16, s. 48. The workmen of a coach-maker who worked by the piece, and who got a specific sum for each job. Ex parte Crairfuot (1831), Mont. 270. Weekly labourers, excavators, bricklayers. Ex parte Skvnur (1833), Mont. & Bli. 417. Guard of a coach at weekly wages not within 6 Geo. IV. c. 16, s. 48. See Ex parte CoUi/tr, correcting the report of this case. The hiring need not be for a year, but must be of longer duration than Ex parte Bennett (1838), 3 Mont. & A. 669. A clerk who voluntarily leaves insolvent master not within 6 Geo. IV. c. 16, s. 48. Ex parte Gee (1839), Mont. & C. 99. A clerk who has involuntarily quitted the bankrupt's service nine 134 WAGES AND REMUNERATION. Servant. assigned all his estates and effects ; entitled to six months' wages. Ex parte Tfomhorg (1842), 2 M.D. & T). 642. The mate of a vessel hired by master, who was part owner, within sect. 48 of 6 Geo. IV. c. 16. Ex parte Harris (IS-io), 9 Jur. 497. Clerk entitled, though absent from business owing to ill health for three months before the bankruptcy. Ex parte Ilickin (1850), 3 De G. & S. 662. Petitioner entered service of bankrupt as book-keeiier and cashier in 1844; continued as such until December, 1848, without coming to agreement as to salary. It was then agi'eed that the salary should be 250/. a j'ear from 1844; the reason why no eaidier arrangement was made being that the bankrupt led peti- tioner to believe that he should share in the profits of a certain patent. Ex parte Oldham (1858), 32 L. T. 181. A clerk to a custom house agent, engaged his evenings in the bankrupt's services, held entitled to allowance under sect. 168 of 12 & 13 Vict. c. 106. — Commissioner Goul- burn. Ex parte Chijjchase (1862), 7 L. T. (N. S.) 290. A city editor of a news- paper employed at a weekly salary ; engagement terminable at month's notice. Ex parte All sop ; re Disnei/ (1875), 32 L. T. (N. S.) 433. Miner with workmen under hiin, for whose wages he alone is responsible, but himself under superior orders, is a " labourer or workman " within sect. 32, sub-s. (2) of Act of 1869. E r parte Hoh/vake ; In re Field (1887), 35 W. E. 396. H. general manager of F.'s brickworks ; exclu- sively in F.'s service and liable to discharge by F. at week's notice ; II. took over F.'s workmen at the wages paid hy F. and contracted to ])roduce bi'icks at a piece-rate per 1,000 fixed by F. ; F. could discharge and en- gage men working for II. and alter the rate per 1,000 bricks ; held, H. a " workman" within sect.40 of Bank- ruptcy Act, 1883. Not Servant. months previous to the fiat by reason of the approaching insolvency and the decreasing business of the bank- rupt, the clerk in the meanwhile getting employment elsewhere, not within the Act. Ex jyarte Ball (1853), 3 De G. M. & G. 155. "Drawers" who were paid by and attached to the colliers employed by the bankrupt, and who were in attendance on the colliers. Ex parte Simmons (1858), 30 L. T. (0. S.) 311. A clerk paid by com- mission on the goods sold by him, and hot at a fixed salarj^ not within sect. 168 of 12 & 13 Vict. c. 106.— Commissioner Fane. Ex parte Butler (1857), 28 L. T. M. 375. A person who was employed, but not exclusively, as accoiuitant at an annual salary of 120/., and who was the i^etitioning creditor in re- spect of salary upon w^hich the adju- dication issued, not a servant witliin the section aforesaid. — Commissioner Goiilbiu'n. Ex parte Harcourt (1858), 31 L. T. 188. A singer at a tavern not within the said section. — Commis- sioner Fane. Ex parte Walter ; re Heath (1873), L. E. 15 Eq. 412. A non-resident music-master and a drill-sergeant en- gaged to attend a school twice a week at a ceitain rate per hour or per lesson, not preferential creditors wdthin sect. 32, sub-s. 2 of the Bankruptcy Act, 1869. Cairney\r. Back, [1906] 2 K. B. 746. See note (/) at p. 127, siqjra. 135 CHAPTER X. DURATION OF THE CONTRACT AND NOTICE. It is the duty of a master to retain his servant in his service for the time agreed upon. In the absence of circumstances showing an intention or custom to the contrary, hiring will be presumed to be for a year {a), or, as the proposition is often expressed, general hiring or hiring, when no term is fixed, is presumed to be a yearly hhing, and cannot be terminated before the end of the year. This presumption, it has been said, was established in order to give master and servant the benefit of all the seasons (b). A more probable explanation of it is that it arose in consequence of the statutory enactment (5 Eliz. c. 4, sections 3 and 7, and other earlier statutes), long in force, that hirings should be by the year. The presumption is limited, according to some judges, to servants in husbandry {c) ; but the weight of authority shows that it is applicable to all kinds of servants {d). It exists whether a contract be in writing or not (e), and even if it be conditional (,/) . This presumption is not irrebuttable {[/), and it may be dis- placed by stipulations in the contract as to times of payment, or by other circumstances. Modern usage in most trades is opposed (a) Coke, Litt. 42 b : "If a man culture is in fact still for the year. See retain a servant generally without ex- on this subject Report of Royal Com- pressing any time, the law shall con- mission on Labour, 1893 — 94, vol. xxxv. strue it to be for one year, for that pp. 77, 78, 105, 109, 135, 136. retainer is according to law." Fancett {d) Lilley v. £/ii-t« (1848), 11 Q. B. V. Cash (1834), 5 B. & Ad. 904 (hiring 742 ; Turner v. Robinson, see note^(a) ; of a warehouseman, wages payable Holcroft v. Barber (1843), 1 C. & K. 4 ; monthly) ; Beeston v. Colbier (1827), 4 Baxter x. Nurse (1844), 1 C. & K. 10. Bing. 309 (hiring of a clerk at monthly {e) Elderton v. i'ww^w (1847— 1853), wages); Turner v. Robinson (1833), 5 4 C. B. 479 ; 6 C. B. 160 ; 13 C. B. 495 ; B. & Ad. 789 ; Huttman v. Boulnois 4 H. of L. 624. (1826), 2 C. & P. 510 ; Creen v. Wriqht (/) R. v. Sandhurst (1827), 7 B. & C. (1876), 1 C. P. D. 591. In America a 557 ; R. v. Byker (1823), 2 B. & C. 114. general hiring is retrarded as ju/-«;«a/«cit' (g) See Tindal, C. J., in Baxter v. a hii-ing at will: Wood, 272. Xurse, see note (rf), (hiring of editor of (i) Story on Contracts, s. 1290. a new periodical), and Pollock, C. B., (f) Huttman v. Boulnois, see note [a). in Fairman v. Oakfurd {1%<6Q) , 5 H. & N. In many districts the hiring in agri- 635. . 136 DURATION OF THE CONTRACT AND NOTICE. to it. Workmen contract for an indefinite time, for piece work, or snbject to a week's, clay's, or hour's {h) notice. The tendency of the decisions is against this presumption. Further, many of the contracts of work and labour are not contracts of Master and Servant ; they are for the completion of a specific piece of work. They end with the work. The presumption does not, of course, exist when there really is no hiring or agreement to retain. Thus, in Bayley v. Ilim)nell {i), the plaintiff served the defendant as assistant surgeon for nearly half a year without a specific contract of hiring ; and had been paid various sums at no fixed periods. He fell ill and did not return to his employment. In an action by the plaintiff for remuneration, on behalf of the defendant it was contended that he could not recover anything, as the hiring was for a year. But the Court decided that the plaintiff might recover on a quantum meruit for the services which he had actually performed. In practice the presumption is of little use. No precise rules on the subject can be laid down ; each case must be considered by itself. The following considerations, however, may be useful as guides: (1.) The circumstance that payment of wages takes place weekly or monthly is strongly in favour of the view that a hiring is for a week or a month ; if this circumstance stand by itself, it will be conclusive as to the diu'ation of the contract {k) . (2.) This fact may be modified by others, as was pointed out in Davis V. Marshall {I). Yearly servants often stipulate for the payment of their wages at short intervals ; and an arrangement to pay weekly or monthly may be merely for the convenience of a yearly servant (;;/). ('"l) The natm-e of the employment must also be taken into account. It makes a material difference in this point of view, whether the servant be a labourer or a secretary, an editor or a sub-editor or an accountant. It is improbable that persons of education holding highly paid offices would consent to very short terms of engagement. (4.) Custom often governs the matter. Thus, in an action for wrongful dismissal of the editor of a periodical, evidence was {h) As at the Londou Docks. See {k) It. v. St. Andrew's (1828), 8 B. evidence before Select Committee on & C. 679 : R. v. Keivtoii (1788), '2 T. R. Master and Servant, 1866, as to substi- 453, per Biiller, J. So in E. v. Dodder- tution of "minute or daj'- contracts" Ai7/ (1814), 3 M. & S. 243. for a contract of twelve months, 1866, {I) (1861), 4 L. T. (N. S.) 216. 449, p. 26. ('/') Levy v. Electrical JForking Go. (i) (1836), 1 M. & W. 506. (1893), 9 Times L. R. 495. DURATION OF THE CONTKACT AND NOTICE. 137 giveu that it was the usage that editors, sub-editors, arid reporters, and all who are regularly employed upon a newspaper, in supplj'ing a particular department, are engaged for a year, unless there is an express agreement to the contrary (>?). (5.) Service for more than a year without an express contract of hiring, or under a contract, but for no definite period, will be evidence of a yearly hiring, even if the contract be conditional (o) . In an Irish case where the agreement was, " I agree to serve Major 13. as steward from May 31st, 1858, for 80/. per annum, &c., three months' notice required on each side," it was held that the hiring was a yearly one, subject to be determined by either party by giving three months' notice before the end of the year {p). In Boicii V. Pinto (q), the defendants, who had established smelting works in Spain, offered to employ the plaintiff as foreman, on the following terms : " I should require you to enter into an engage- ment to remain with me for at least three years, at my option. Salary, 250/. per annum." The Court thought that there was a yearly hiring, and that " at my option " did not enable the plaintiff to terminate the agreement at any time. " These words mean that the defendants are to have the option of saying whether the service shall continue for one, two, or three years." In Brown v. Symons (r), there was an agreement to employ the defendant as a commercial traveller at a yearly salary, which was payable quarterly ; the agreement to "be binding between the parties for twelve months certain from the date hereof, and continue from time to time until three months' notice in writing be given by either party to determine the same." Transposing the words the Coiu-t read the agreement as if it ran thus : " This agreement to continue from time to time until three months' notice, &c., but to be binding between the said parties for twelve months certain." It was an agreement for twelve months certain and no more. In Parker v. Ibhct.son (a), there was an agreement in writing to serve as agent or representative of a manufacturer of woollen and mohair cloths, at a salary of 150/. a year, and a proviso that if at the end of the year the plaintiff had done (m) Baxter v. Nurse, see note (rf) ; {p) Forgan v. Burke (1861), 12 Ir. C. Eolcroft V. Barber (1843), 1 C. & K. 4. L. 495. (o) 'li. V. Lyth inrS), o T. R. 327; {q) (1854), 9 Ex. 327. E. V. rendlcton (1812), 15 East, 449 ; (>•) (1860), 8 C. B. N. S. 208. R. V. Worfield (1794), 5 T. R. 606; (s) (1858), 4 C. B. N. S. 346. On the £. V. liykcr (1823), 2 B. "G. Butterfield v. Murler (1851), .3 C. & K. 103. Plaintiff, commission agent, acting for defendants ; proof that for more than a year he had rendered his accounts. IHiickwdl V. Pennant (1852), 9 Ilare, 551. Servant paid weekly wages though irregularly ; not yearly hiring. Fidrman v. Oahford (1800), 5 H. & N. 035. Plaintiff, a clerk of .ship broker, left defendant's service, receiv- ing a month's wages instead of notice ; subsequently entered the defendant's service at a yearly salary of 250/. ; nothing expressly said as to notice or duration of sei-vice ; plaintiff" paid weekly. Judge left it to the jury to say whether there was a hiring for a year, telling them, according to the report in the Lmv Journal, that, except in the case of menial servants, there was no inflexible rule that a general hiring is for a year. The jury found no contract tor a year, and the Court refused to saj' that there was misdirection, or that the verdict was against the weight of evidence. Robertson v. Jenner (1807), 15 L. T. (N. S.) 51i. Hiring at 2 guineas a week for a year is hiring by the week and not by the year. Evans v. Boe (1872), L. E. 7 C. P. 138. Plaintiff entered service of defendants under a memorandum which, inter alia, said, "April 13th, 1871. I hereby agree to accept the situation as foreman, &c,, on my receiving a salary of 2/. per week and house to live in from the 19th April, 1871." Weekly hiring, and no evidence of conversation at the time of signing with a view to show yearly contract intended, was admissible. 144 CHAPTER XI. master's duty to indemnify. A MAS'iER is bound to indemnify his servant for all expenses incurred or loss sustained in obeying his lawful orders. No express contract of indemnity is required ; tlie law will presume from the relation of master and servant — as, in fact, from any other contract of agency — an obligation to hold the latter harmless from the consequences of obedience to the lawful orders of the former (a). Tlie first important exception to the rule is that a promise, expressed or implied, to indemnify a servant against the conse- quences of violation of a statute, or a felony or misdemeanour, or a manifest civil wrong, is of no effect. Thus, a promise to indemnify a printer against the consequences of publishing a libel (b), or to indemnify a police constable for suffering a prisoner to escape (c), or for an assault (rf), would be void. In all such cases the principle that there is no contribution between the tort-feasors or wrong- doers applies. Where, however, an act is not palpably illegal, and is done («) Story on Afimcy, s. 339 ; Wharton daut promised to save the plaintiff on Agency, 8. 340; Dig. Lib. xvii. tit. 1, harmless?" — Tindal, C. J.) Colbiirn v. 27, H. Tothier(J/ffH(/rt(t,Chap. IV.,H. I., Fatmme (1834), Cr. M. & R. 173. A. I.) says of 'L' obligation dercmbour.sor (Action by proprietor of a paper against le mandataire " : " i'our qu'il y ait lieu an editor for publishiug a libel, for a cette obligation, il faut 1" que le -which plaintiff was convicted and fined ; mandataire ait debourse quelque chose ; the judges indicated their opinion that 2'' qu'il I'ait debourse ex causa mandati ; a proprietor could not recover against 3° qu'il I'ait debourse sans faute, ii/cul- the editor the damages sustained by pabiUter.^^ such conviction.) {h) Shackell y jMsier (1836) 2 Bing. Featherstone v. Eutchinson, Cro. N. C. 634. ("The plaintiff, at the -r,, j ' ,gg ' request of the defendant, had published the libel; that is, had committed an [d) -4//ew v. i2). He is not even liable upon an implied contract or otherwise if a doctor or surgeon be called in to attend a servant who is injured in the course of his employment. But slight evidence of assent — for example, interference on the part of the master, or the fact that he called in his own doctor — will suffice to fix him with liability (e), and he will not be entitled to deduct the charge from the servant's wages. The position of an apprentice is different; in sickness he is entitled, at all events if he reside with his master, to proper medical attendance and medicine (d). Failure or neglect to provide nourishment to a servant or apprentice was in certain cases at Common Law an indictable offence. Thus in li. v. Gould [e), a master to whom a poor boy was put out as apprentice was indicted for refusing to provide for him. In R. v. Friend (/), a girl of thirteen or fom-teen had been apprenticed to the prisoner. He and his wife were (ff) 168 E. Apparently a servant, if (c) Cooper v. Thillip-s (1831), 4 C. & P. maltreated, can leave the service and 581 ; Scllen v. Norman (1829), 4 C. & P. sue for damages ; see Erskine by 80. Rankine (18th ed.), 302. [d) R. v. Smith (1837), 8 C. & P. 153. {b) Ncwbtj V. Wiltshire (1785), 4 Doug. A master was held bound, under a cove- 284; Atkins v. Baiiwell {1802), 2 East, nant in the indentures, to find "meat, 505; Wemiall V. Adnei/ {1802), SB. izF. drink, lodging and all other neces- 247- (Plaintiff's arm broken while saries," to provide his apprentice with driving defendant's team.) Seannan v. clothes and washing gratis : Abbott v. Casfp/l (1795), 1 Esp. 270, is overruled. Botes (1875), 33 L. T. (N. S.) 491. See In Scotland it would seem that a Austin on Approitices, 77 — 79. As to master may compel a male dcmiestic ser- duty to maintain apprentice during sick- vaut to reside outof his liouseou paying ness or incapacity, seep. 181, n. (i), infra. board wages ; not so a female domestic {e) (3 Anne), 1 Salk. 381. servant. Graham v. Thomson (1822), (/) (1802), Russ. & Ey. 22 ; Stephen's 1 S. 287. Digest of Criminal Law (5th ed.), 220. L 2 148 master's DUIT TO PROVIDK SUSTENANCE. indicted for liaving refused aud negiected to supply suliicieiit meat, drink, wearing apparel, bedding, &c. At a meeting of all the judges, except Kenyon, C. J., and liooke, J., the opinion was expressed (Chambre, J. dissenting) that it was " an indict- able offence, as a misdemeanour, to refuse or neglect to provide sufficient food, bedding, &c., to any infant of tender years, unable to provide for and take care of itself (whether such infant were child, ap]irentice, or servant), whom a man was obliged by duty or contract to provide for, so as thereby to injure its health." In tlic subsequent case of li. v. Ridley {;/), Mr. Justice Lawrence confined tlie liability to the case of children of tender years and under tlio dominion of tlie defendant. The defects of the law having been revealed in the case of the Sloanes in 1851, the. 1 4 i^ 1 5 Vict. c. 1 1 was passed. The wliole of this Act, with the exception of sects. 3, 4, 5, 8 and 9, was repealed by 24 & 25 Vict. c. 95. Under sect. 3 a register is to be kept of young persons under the age of sixteen hircnl or taken as servants from any workhouse. Under sect. 4 sucli young persons liired from workhouses or bound out as pauper a]i})rentices are to be visited periodically by the relieving officer. Tlie 21 & 25 Vict. c. 100, s. 20 (Offences Against the Person Act, 1861), provides: — Whosoever, being legally liable, oitlior as a master or mistress, to provide for any apiirentice or servant necessary footl, clothing, or lodging, shall wilfully and without lawful oxeuse refuse or neglect to provide the same, or shall unlawfully and maliciously do or cause to be done any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant shall bo endangered, or the health of such apprentice or servant shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanour, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labour. Sect. 6 of the Conspiracsy and Protection of Property Act, 1 875 (38 & 39 Vict. c. 8(5), makes it an offence punishable on summarj'' conviction wilfully and without lawful excuse to refuse or neglect to provide, when one is legally liable to do so, a servant or apprentice with necessary food, clothing, medical aid, or lodging {//). {ff) (1811), 2 Camp. G50. vide food, medicine, &c. to seamen, see ... ^ , . ,,, „TT ,- ,p 57 & .58 Vict. c. GO, ss. 198-210; and (A) See also 4 Edw. VII. c. lo (Pre- ^^^ ^^^ ^^^jj^,^. ^^^.^^^ ^_ ^;^^,.^ ^^^ ^^^^ ^^^^^^^_ vention of Cruelty to Children Act, }„„• modioiiic, Cmich v. Stcrf (18o4), 3 1901). As to duties of owner to pro- E. & B. 402. 149 CHAPTEli Xlll. MAS'J'Eli's DUTY TO TKACH APPIJKN'ITCK. It is tlio duty of a master to teach, or cause to be taught, his apprentice the trade or profession to which he has been apprenticed. This follows from the very nature of apprenticeship. It is, in fact, stipulated for in every indeiitui'e of apprenticeship, the usual covenant being " to take and receive the said apprentice as his apprentice during the said term ; and to the best of his power, knowledge, and ability, teach or instruct, or cause to be taught or instructed," &c., &c. No technical meaning is given to "teaching" : it may mean merely allowing the apprentice "the run of the office" or " shop " {a). Where two partners agreed to teach an apprentice his trade and one of them retired from the business, it was held that there was a breach of the agreement {b) . It is a breach of a contract of apprenticeship for a master who has covenanted to teach three trades to cease to carry on one of them ; and the apprentice may refuse to continue serving (r). In Scotland it has been held that if a master did not teach the apprentice his whole trade and mystery — for example, if a stonemason taught his apprentice only to hew stones — the contract might be annulled ((/). {(t) Cridland v. Marler and Bennett p. 360, where reference is made to a (1893), 9 Times L. R. 529. curious case, Gardner v. Smith, iu ,,, „ , „ 77 /ioTn\ .-.,-. T rn which an apprentice pleaded that his ih] CoHchman v. SiUar (1870), 22 Li. i. ^ i. j ■ • i .-^j^ (, . ^ ^' master had given uj), in a great measure, ^ ■ •'' ' ■ his business as a joiner, and become a (c) Ellen V. Topp (1861), 6 Ex. 424; smugg-ler, and that he seldom attended Batty V. Monks (1864), 12 L. T. (N. S.) the shop, and took no care to instruct 832. the aijprentice. The relevancy of this id) James Carsewell, 7th July (1794), defence was not denied, but the Court unreported; cited in n. (h) at p. 604 of thought it "not proved that the ap- Fraser's Law of Personal and Bomestic prentice was deprived of daily instruction Relations (ed. 1846). Sec Campbell's by reason of the casual absence of the edition of Fraser's Master and Servant, master." 150 >rASTF,R's DTH'Y TO TKACTT APPKENTKn-:. So in Edton v. Western {e), the splitting np of tlieir business by a firm Avho hud covenanted to teach the a}>prentice the business "now carried on by them " was hekl a breach. It is an answer to an action b}' the father against the master on tlie covenants of an indenture for not teaching, keeidiig, and main- taining that the ajiprentice absented himself, and thereb}' became incapacitated from serving as an apprentice (./') ; or that the ap])rentice was an habitual thief (r/). Where the teaching should be given, is either a question of construction or of what is reasonable in the circumstances. In Royce v. Charlton {//), the apprentice, son of Ann Charlton of Mansfield, in the county of Nottingham, put himself apprentice to defendant " of Mansfield in the said county of Nottingham," and the mother agreed to provide food, clothing, Sic. The Court refused to imply an obligation to give instruction at Mansfield, the place where the master carried on business, and the parties to the indenture resided, at the time of its execution. This decision, how- ever, was overruled, so far at least as outdoor apprentices are concerned, by the Court of Appeal in Eaton v. Western {e), which was an action for refusing to continue the plaintiff as apprentice against the defendants, who had removed their business to Derby from Lambeth, where it was carried on when the indenture was entered into. The defendants had required all theii" apprentices to go to Derby, and had offered to jtay their railway fares and increase their wages. Drawing a distinction between an indoor ap])rentice, whom a master is bound to provide with food and board, and an outdoor apprentice, maintained by his father, the (Jourt of Appeal thought the defendants' command to remove to Derby unlawful and unreasonable. There is no discussion in tlie cases of the question whether there can be an apprenticeship to any but manual trades. There seems to be no reason against such a thing, even if " pupil " be the more appropriate designation. No action will lie under ordinary articles of indenture against the personal representatives of the employer who has died, for not performing the covenants (/) : the contract to teach is personal. It {e) (1882), 9 Q. B. D. 630. (A) (1S81), 8 Q. B. D. 1. A.s to scnd- (/) Hughes v. Humphrn/s (1827), 6 ing iiii apprentice out of the country, B. &C. 680; Itai/itioiid V. 3fi)Uon {\S66), sec Coventry v. Woodhall (1616), Hob. L. R. 1 Ex. 214; We.shvick v. Thcodur 134. (1875), L. R. 10 Q. B. 224. (i) Eex v. Peck, 1 Salk. 66. It is ((/) Lmroyd v. Brouk, [1891] 1 Q. B. otherwise with parish apprentices : rid. 431 (pawnbroker's business). 32 Geo. III. c. 57, ss. 1 — 3. master's duty to teach APPKENTICE. lOi is, of course, otherwise, Avhere the contract expressly hinds the executors and administrators (/.•). If a master of an apprentice dies hefore tlie term for wliieli he agreed to instruct him is ended the apprentice will not he al)le to recover the whole or any part of the premium on the ground of failm-e of consideration (/). [k) Cooper V. SimiJioiiK (1862), 7 H. & N. 707. (l) Whinciip V. Hughes (1871), L. R. e C. P. 78 ; Webb \.^En). It is one of a large class of exceptions instituted in tlie interests of society. It is an applica- tion of a general principle, viz., that when a communication upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is made to a person having a corresponding interest or duty, the occasion is privileged. It lies upon the defendant to make this out to the satisfaction of the judge. When this is done, the burden of proof is shifted on to the i)laintitf, who, in order to succeed, has to show express malice in the defendant (c) . Only in connection with the («) 3 Esp. 201. See also Hnndkif v. required by the 5 Eli/, c. 4, s. 10 (re- MoJI'ult (1872), 7 Ir. R. C L. 104. (The pealed by 38 &. 39 Vict. c. 86, s. 17), to 2 Geo. I. f. 17, s. 4, rcfpiirod a iiiast,(>r l)e given to servants, to give a certificate of discliarge, and, in ca.se of refusal, the .servant might apply (c) See Parke, B., in Too^/ood v . Spi/rii/ff to a justice: !itld, that the .statutory (1834), 1 C. M. & R. at p. 11)3, a dictuni remedy was exclusive, and that no action (quoted with approval in many subse- for refusing certificate lay against the quent cases, including ll'hiiely \. Adams ma.ster.) (1863), 15 C. B. N. S. 392 ; Harrison v. (b) Erie, J., in Coxhead v. Richards Bush (18r)r)), .5 E. & B. 344; Spill v. (1846), 1.5 L. J. C. P. 278. The origin Maulc (1869), L. R. 4 Ex. 232. See of the exemption may, however, have also Jcuoure v. Iklmajc, [1891] A. C. something to do with the testimonials 73. master's duty as to servant's character. 15'i issue of malico is tlio plaintiCI's belief or impression as to the facts constituting the privilege relevant (d). The master's privilege is bvit an application of the general rule which shiehled a person who wrote a letter to his mother-in-law containing defamatory state- ments respecting a person whom she was about to marry {r) ; a person who, a box having been stolen from his shop, went to the plaintiff's master and said, "There was no one else in the room, and he {i.e., the plaintiff) must have taken it " (./") ; one who inserted a libel of the plaintiff in a correspondence with plaintiff's friend which was begun with the plaintiff's concm-reuce in order to investigate certain charges against him (g) ; directors who in a report to their shareholders stated with respect to their manager that there was a deficiency of stock for which he was responsible, and that his accounts had been badly kept and had been rendered to them very irregularly {//) ; a railway company, which, in a monthly circular to their servants, published the plaintiff's name, stating he was dismissed and giving the reason '?")• This privilege has been extended on the ground of publiN o n T> about a servant is not privileged in the {^) Hopwood V. Thorn (1849), 8 O. B. ^^^^^^^ ^j^.^^. -^ j^ pi-utected from di.sco\ cry, without the person who refuses to pro- duce it pledging his oath tend to criminate him : 7i (i) Hunt V. Great Xorthcrn Mail. Co., (1880), L R. 5 Ex. D. 108. 293 (A) Lawless v. Anglo- Eyi/ptian Cotton duce it pledging his oath that it will Co. (1869), L. R. 4 Q. B. 262. tend to criminate him: IVeib v. East 154 MA8TKK's duty AiS TO Sl':i{VAN'l''8 CHAU'ACl'KR. that Is, some wrongful act done intentionally, without just cause or excuse (w), must be proved; and the question will not he allowed to go to the jury unless there he evidence of malice {)i). Its existence will not necessarily be shown by the fact that tlie state- ments complained of are not true ; it is not the objective truth of the statements, but the honesty of the defendant's belief in them that is the point. Malice may be proved in so many ways that only instances can be given ; for example, proof that the communi- cations were false to the knowledge of tlie person making them (o) ; the heinous or intemperate character of the libel itself (y>) ; the fact that statements were made under the influence of gross unreasoning prejudice (q), or were made unsolicited and offi- ciously (/•) — though that is not always conclusive — or that they were uttered needlessly in the presence of third parties (.s), or with unreasonable publicity {t), may substantiate the existence of malice, (m) Bayley, J.'s, defttiition of malice iu ISromaijc v. Prosser (1825), 4 B. & C. at p. 255. («) There ' ' must be something that is consistent only with a desire to injure the plaintiff, to justify a judge in leav- ing the question of nuilice to the jury." Jervis, C. J., in Harris v. Thompson, see note (o), citing Somerville v. Hawkins (1851), 10 C. B. 583. Kelly v. Partington (1833), 2 N. & M. 4G0, is sometimes quoted as an authority for the statement that " Slight evidence is sutticieut in these cases to warrant the jury in find- ing malice. ' It is submitted that the same rule as to leaving questions to the jury applies to these as to other cases. (o) Fonntnin v. Boodle (1842), 3 Q. B. 5. (riaintiff employed as a governess for upwards of a year, during which time she was twice reconuuended to other situations by defendant ; dismissed abrujitly, without cause assigned ; lost another situation, iu consequence of the defendant writing in an.^wer to inquiry, " I parted with her on account of her inih (1890), 17 R. 716. {))) Royers v. Clljton (1803), 3 B. & P. 587. (Defendant quarrelled with plain- tiff, his butler ; called on his former master to inform him that plaintiff had behaved in an impertinent manner, and to desire him not to give him another character; being apjjlied to by H., who wrote to him for a characjter, repeated the charges in a letter in strong terms : left to the jury to say, looking to all the circumstances, whether there was malice.) ((/) Itot/al Aquarium Society v. Parkin- sou, [1892] 1 Q. B. 431. (/■) Pattison V Jones (1828), 8 B. & C. 578. (Master wrote first letter about a servant's misconduct, without having been applied to, and wrote a second in answer to inquiries : he/d that there was evidence of malice.) Bayley, J., ] ointed out that there might be oc(!asious on which conuiuinications, though unsoli- (iited, would be privileged. See also Coltman, J., in Coxhead v. Richards (1846), 2 C. B. p. 601 ; and the judg- ment of Lopes, L. J. [diss.), iu Stuart v. Bell, [1891] 2 Q. B. 341, at p. 356. Lord Mansfield's riding in Loivry v. Aikrnhead, Folkiird's Sturkie, p. 253, must bo taken with reservation. [s) Taylor \. Hawkins (1851), 16 Q. B. 308; Manhy v. Witt (1856), 18 C. B. 544 ; Tooqood v. Spyriny (1834), 1 C. M. & R. 18l'. {t) E.g., by telegram instead of letter : JPilliamsoH v. Freer (1874), 9 C. P. 393. master's duty as to SKUVANT's CllAKAC'Ti:ii. 105 tliat is, a design to injure tlie servant. No enumeration of tlio circumstances whicli may prove tliis, and constitute extrinsic or intrinsic evidence of malice, is possible ; the (question of malice or bonafideti, of proper or improper feeling, being peculiarly one for a jury. It is their business to say whether a master has made a letter about a servant a pretext for expressing private spite or con- veying an ill-natured and unjust insinuation, or has described faults in an exaggerated fashion, indicating a wish to harm the servant. In modern times the Courts have been disposed to give a liberal application to the rule stated above, and they have not confined privikige to cases in which communications are made to a person about to engage a servant. This is illustrated by WeatherHton v. Ilaickiiis (ii). The defendant, in answer to an application made to bira by 11., to whom the plaintiff was recommended, gave the plaintiff a bad character. The brother-in-law of the plaintiff having repeatedly called on the defendant with reference to the subject, the defendant sent him a letter containing specific charges of fraud ; it was held that this was a privileged communication as being incidental to the application for a character. This species of privilege, it is said, extends even to the communication of facts which were unknown to a master while a servant was in his employment ; "the privilege lasts as long as anything is discovered before unknown to the master " (.r). It will cover communications respecting the conduct of a servant after he has quitted a master's employment. When a master wrote in answer to inquiries "nothing can be in justice said in her favour," and that " she (defendant) has, since her dismissal, been credibly informed she (plaintiif) has been and now is a prostitute at Bury," it was held, in the absence of any evidence of the falsehood of the statement, that the letter was privileged (//). A mutual insurance society for shipping may, in order to protect its interests, communicate to the owner of a vessel that if he gives the command to a certain person whom they believe guilty of (h) (17iS()), 1 T. R. 110. a •ifood character to a .servant whicli had „ ,, r,or>n > /^ r> prucured a situation with defoudant, {,:) Soc Sl>«i,t V. Urn, [1891] 2 Q. B. ^ . ^j^^^ ^^^ ^^^^^^^^ ^^^^^ ^^^^ ^^_ 34 1 where the cominimicatio,. was made ,^^,.^"41^^, character given ; privilefred.) to the master b> his host at the eud of a ^So^/r^-n//.' v. Jlaivkhis (18M), 10 G. B. ^'^^*- 583 ; (Waruinj; by master to servants (y) CJiild V. Affleck {IS2.*), 9 B. & C. not to associate with a dismissed servant, 403; Gardner v. Slade {l^i9), 13 Q. B. and statement of cause of dismissal; 796. Dtxnn V. FarsoHs {\S[->S), 1 F. & F. privilefTPd.) Hunt \. Great Norlhirn Eail. 24; (Letter to a person who has yiven Co., [1891] 2 Q. B. 189. 156 master's duty as to sek'vant's charactp:r. drunkonnoss, thoy will decline to continue to insure tlie vessel. Sueli a communication will l)o privileged [z). The exact limits of tlic (qualified privilege described in Too(jood V. Sj)//riiig {a) are hard to define. Such expre^^sions as " public and private duty," " matters where his interest is concerned," "tlie discharge of some duty, public, private or official, whicli the ordinary exigencies of society, his own private interest, or even that of another called upon him to perform " (b) are ambiguous. It cannot be said that they are yet clearly explained by the decisions. This much, however, is certain — by duties are not to be understood merely legal duties ; they include moral and social duties of imperfect obligation ; the duties, for example, which neighbours owe to each other, and wliich solicitors owe in vindica- tion of the character of their clients [c). An action will lie against a person who makes a false and fraudulent statement with respect to the character of a servant {(/) ; so, too, will an action lie, and substan- tial damages may be recovered for malieiousl}' defacing a servant's written character by writing upon it a disparaging statement (r). It is actionable, without proof of special damage, to say of a servant anything which prejudices him in the way of his business or profession ; e.g., to say of a gamekeeper that he trapped three foxes (,/') ; or of a servant girl that she had a miscarriage and had lost her place in consequence {(j). The uttering of a forged "character" or testimonial is an offence at common law. Thus when a person had forged and uttered a document purporting to be a testimonial by a clergyman, and recommending him for the situation of a schoolmaster, he was properly convicted of a misdemeanom- at common law (A) . (2) ZTawfoH V. i^a^/t' (1879), 4 A. C. 247. raised as to the person in whom the («) See note (s), p. l.'')4. property in the character was; and [b) Folkard's edition of Starkie on Huddleston, B. {I. c. at p. G38), for this Slander, 250. Sec further as to privilege purpose, drew a distinction between in commuuications respecting servants, " the letters ordinarily written in answer Jiihiison V. I'A-atm (1800), 3 Esp. 32; to an inquiry as to a servant's character 6Wi-rt(/wf V. 7/o(/(//ii«Aow (1833), 5 C. & P. —which would probably be the pro- 543; Itumsey v. Well (1841), C. & M. perty of the master proposing to engage 104 ; Coxhcad v. llichards (184()), 2 C. & the servant — and a general testimonial B. 569; Gilpin v. Fowler (1854), 9 Ex. of good character, which is, I should 615 • Fryer v. Kinversley (1863), 15 C. B. think, intended to be used as a voucher N. S. 422; dowles v. Potts (1865), 34 on future occasions." L. J. Q. B. 248. (/) Foiilycr v. Neivcomb (1867), L. E,. (c) Harrison v. Bush (1855), 5 E. & B. 2 Ex. 327; ■'seaman v. Bigy, Cro. Car. 344. 480; Jicyinald^s Case, Cro. Car. 563. {d) Wilkin v. Jieid (1854), 15 C. B. (y) Connors v. Justice (1862), 13 Ir. 19'^- Foster v. Charles (1830), 6 Bing. C. L. R. 451; of. LumUi) v. Allday 396.' (1831), 1 C. & J. 301. (c) Wennhak v. Morgan (1888), 20 [h) li. v. Sharman (1854), Dears. 285. Q. B. D. 635. The question was also See 32 Geo. III. c. 56, at p. 328, infra. 16'i CHAPTER XV. MEASURE OF DAMAGES. A SERVANT who is discliurgcd improporly or without due notice is entitled to recover such damages as are com- pensation for the actual loss which he has sustained. Sometimes the master and servant agree as to the terms on which they sliall be at liberty to terminate the contract. If it he agreed, or, as in the case of menial servants, be impHed in the agreement, that they may determine the engagement on a month's notice, the servant can recover only a month's wages, and no more, in the event of his being improperly discharged {a), the cause of action being the not giving the notice (h). A servant who is dismissed is bound to make reasonable exertion and show diligence in endeavouring to procure employment. It is deemed contrary to public policy that he should remain idle. He must seek for employment and accept it if it be offered. The true measure of damages is therefore not the amount of wages which he was promised under the agreement, but his probable loss. This will be his wages less the value of any suitable place which he has obtained (r), has been offered (r/), or might have got by reasonable, not extraordinary, exertions (e). Willes, J., in Ifarf/mn/ v. T/n' Genera/ Excheiuge B(nik [f), told the jury that in estimating the damages due to the plaintiff — the manager of a banking company — (a) Hartley v. Harman (1840), 11 A. {c) Reid v. Explosives Co. (1867), 19 & E. 798; Gordon v. Potter (1859), 1 Q. B. D. 264. F. & F. 644. But iico Jf'iw v. Jones (d) lirace v. Caldrr, [lf>9n] 2 Q.B.->o:i. (1890), 2;') Q. B. D. 107, where dismissal (e) See the remarks of A. L. Smith, with a week's notice beiny- a term of the L. J., in Bowes v. Fnss, [1894] 1 Q. B. contract, it was held that the apprentice 202. might rec^over more than a week's wages (/) (1866), 14 L. T. N. S. 863. See becaut-e of a defamatory statement made observations, arguendo, of Bhickliurn, J., by the master when he dismissed hi»n in Soicdon v.jruis (1861), 30 L. J. Q. B. without any notice at all. See Chap. X., 176 ; Emincns v. Elderton (1853), 13 C. B. supra. 508 ; Speck v. l'hilhps{i&2^), 6 M. & W (6) Fencings v. Tisdal{\9,^h), 1 Ex. 295. 283. 158 MEASURE OF DAMAGES. wlio luul been engag-ed for a term of three years, and who had been dismissed at the end of four months, they should take his salary into account ; that they were not to give him the whole of his salary for the three years ; but that they were to take into account the probability of his obtaining other employment. The rule was thus expressed by Erie, J., in BockJiam v. Drake {(/) : — Tho moasuro of damages for the broach of promise now in question is obtaiTicd by considerinji,' wliat is tho nsnal rate of wages for the employment hero contracted for, and what time wouhl be lost before a similar eniploj'- ment could be obtained. The law considers that employment in anj' ordinary branch of industry can bo obtained by a person competent for the place, and that the usual rate of wages for such employment can bo jtroved, and that when a promise for continuing employment is broken by the master, it is the duty of tho servant to ixse diligence to find othfr (Miiploymcnt. Whence it follows that only nominal damages can be recovered, if the servant dismissed could have at once obtained similnr employment (//). The damages awarded must not be too remote. A seaman wlio had left his ship at Rio because he refused to take part in an illegal voyage, and who was committed to prison by th(> Brazilian Grovernment as a deserter, was held entitled to recover loss of wages under liis contract. But a claim for a loss of clotlies, which had been carried away in tho sliip, was disallowed (/). In another case the facts were these : The plaintiff was engaged as manager of a mining company in South America for three years. The directors were at liberty to dissolve the agreement at any time on givhig him twelve months' notice, or in lieu of such notice paying hira twelve months' salary and his reasonable expenses in returning to England. If he served three years he was to be entitled to the expenses of the return of himself and his family. He was dismissed without notice or receiving a year's salary. The jury gave him a year's salary from the date of dismissal and his own expenses in returning to England. The Court refused to add to tlie damages the expenses incurred in tlie return of liis family or the amount of his salary to the end of the third year (/.). (ff) (1849), 2 H. L. C. 579, 606. (dismissal of apprentice). Smith V. Thompson (1849), 8 C. B. 44: {h) Macdoinidl v. Marston (1884), 1 (Clerk hired for two years; wrongfully C. »t E. 2«1. dismissed after about one quarter's ser- (») Barton v. Pinkerton (1867), 2 L. R. vice; jury awarded one year's salary; Ex.340; llosfs v. Pender {\%1\), \ "R. '0)2, Court refused to disturb the verdict). where it is said that loss of gratuities Goodman v. Pocock [l^bO), 15Q. B. 576: is nut to be considered in estimating Richardson v. Mellis (1824), 2 Bing. 229 ; damages. Walton V. Tucker (18-sO), 45 J. P. 23; {k) French v. Brookes (1830), 6 Bing. Man- v. Jones (1890), 25 Q. B. D. 107 354; Noble v. Ames Manufacturing Co., MEASURE OF DAMAGES. 150 Though it is the duty of a servant wlio is discliargod to seek employment, it appears that the onu/i rests witli the person wluj denies his riglit to receive his wages in full to show that ho could have obtained employment (l). When it is said that a servant should diligentl}' look for employ- ment, it is not meant that a clerk should be ready to beconu^ a plouglmian or a navvy, or that a farm bailiff should be ready to undertake the work of a ploughman. This is illustrated by a Scotch case, Ross v. Poidcr {m) . The plaintiff, who had been employed as head gamekeeper, was dismissed, but ho was offered the same wages and the post of assistant gamekeeper. The Court hold that he Ti\as not bound to accept the subordinate situation. " I think," said the Lord President, "it is sufficient for the disposal of the defence to show how the employment offered him if he Avould return was wholly different from his former one ns liead keeper." A servant wlio is improperly dismissed, or whom the master refuses to take into his service, nuiy at once sue for damages. He may also in the former ease recover the value of services actually performed. In other words, the servant may treat the contract as at an end and rescinded, and sue on a quantu))) meruit for his services, or he may treat the contract as still in existence and sue on a breach of it. In tlie notes to Cutter v. Pou-ell (u) another remedy is referred to, n'z., that " the servant may wait for the termination of the period for which ho was hired, and may then sue for his whole wages, in indebitatus assumpsit, relying on the doctrine of con- structive service." This phrase is borrowed from decisions in 112 Mass. 492. (Plaintiff, who had L. R. .') Ch. 737 ; Ex parte Logan {\?.10), come from the Sandwich islands to L. R. 9 Eq. 149 ; Dean and Gilhei-t's Massachusetts, could not recover in an Cane (1872), 41 L. J. Ch. 476 ; Shinrjrs action for refusal to receive him into Case (1872), L. R. 14 Eq. 417. The service, damages for loss of time or basis of calculation adopted is the present expenses in journey.) value of an annuity of a suiu equal to [l) Costigan v. Mohaivk Rail Road Co., the full salary for the unexpired term, 2 Denio, 609. havinjr regard to ordinary health and (»h) (1874), 1 R. 352. See as to pro- life risks, and making a deduction for spective remuneration in winding up of the liberty of obtaining fresh appoint- companies, Yelland's Case (1876), L. R. ments. 4 Eq. 3.50; Clarlc's 6Vw (1869), L. R. («) Smith's L. G. vol. ii. at p. 48, 7 Eq. .550; Ex parte Maclure (1870), Uthed. 1(50 MEASURE OF DAMAGES. sottlemeut cases, aud tlio doetriiie was first suggested by Lord Ellenborough in the case of Gandell v. Fontigny (o), an action for wages for the whole quarter by a servant wrongfully discharged before the end of the quarter. Lord Ellenborougli suggested that tl\e plaintiff might be entitled to recover on the ground that as he was " willing to serve for residue in contemplation of law, he may be considered to have served the whole." But there is little doubt that since the decisions in Smith v. Ilai/ward {p) and Goodman v. Pocock (q), Gandell v. Pon{i(jni/ (o) cannot be upheld (r). No doubt a servant who has been improperly dismissed is not bo)ind to sue at once; he may sue at the end of the term; but the sum which he will recover will be calculated not on the basis of fictitious service, but the actual damages which he has sustained. Now that it is sufficient for a jilaintiff to state in his statement of claim the facts upon which he relies, these decisions are unim[)ortant (.s). A servant who has boon improperly dismissed need not wait until tlie expiration of the term for which he engaged to serve before bringing his action. So also if his master has refused without proper reason to receive him into his service, he may at once institute an action. This was decided in Ilochsfer v. Be La Tour [t), the facts of which were as follows : A courier was engaged in April of 1852 to go on a tour of three months, which were to commence on the 1st of June, 1852. On the 11th of May of that year the defendant wrote to say that he had changed his mind, and that he did not require the courier's services. He refused to make compeusation. The courier began an action on the 22nd of May, 1852. The declaration averred that from the time of making the agreement until the time when the defendant refused to perform his promise and exonerated the plaintiff from performance, the plaintiff was ready and willing to perform the agreement. Breach that the defendant before the said 1 st of June wrongfully refused to engage the plaintiff or perform his promise, and then ^vl'ongfully exonerated the plaintiff from the performance of the agreement, to the damage of the plaintilf. The plaintiff between the commencement of the action and the 1st of June obtained another engagement on equally good terms, but not beginning {()) (1810), 4 Camp. 37.1. damages for improper dismissal. I .\ nflQ7\ 7 A Hr V MX U) (I8;J3), 2 E. & B. 67H. See Danube ^? / o..?' In T. ;-« ^^'l- (^■"- V- Xcno. (1861), 1 1 C. B. N. S. ill (1»'^'')> !••' y- «• ^'^- 15-2 (carriage of goods) ; Frost v. lu/iff/it ()•) Seenote&im Cut /rrv. Pour//, /. r., (1872), L. R. 7 Ex. Ill (promise to at p. 48. marry) ; Johnstons v. Milling (1886), 16 (4) See llurnsley v. Taylor (1867), Q. B. D. 460 (coveuapt by lessor to re- 32 J. r. 229, as to effect of obtaining build). MEASURE OF DAMAGES. 'C>1 until the 4th of July. On a motion in urrest of judgment, Lord Campbell said : — The man who wrongfully ronounc(3s a contract into which ho has doliboratoly entered cannot justly complain if he is immediately sued for a compensation in damages by the man whom he has injm-ed; and it seems reasonable to allow an option to the injured party, either to sue immediately, or to wait till the time when the act was to be done, still holding it as prospectively binding for the exercise of this opticm, which may be advan- tageous to the innocent party, and cannot be prejudicial to the wrong-doer. An argument against the action before the 1st of June is urged from the difficulty of calculating the damages ; but this argument is equally strong against an action before the 1st of September, when the three months would expire. In either case, the jury in assessing the damages would be justified in looking to all that had happened, or was likely to happen, to increase or mitigate the loss of the plaintiff down to the day of trial {a). A master may recover damag'es for breach of contract of service by a servant, or for negligence in the performance of his duties (.r), though, for ob\ious reasons, such actions are rare. It is usual to take proceedings under the Employers and Workmen Act, 1875, ss. 3 and 4 {//) . (u) In spite of a common opinion to the contrary, it does not appear to be the case that, in the absence of any stipulation on the suhject, a servant is entitled to expenses incurred in going to his master's hous(> before being en- gaged, or returning from it after being dismissed : Burn's Justice (otli ed.), 225 ; Bead V. Diaismore (1840), 9 C. & P. 588. But it is submitted that a domi- ciled Englishman's valet, for instance, who has been dismissed for miscon- duct, while abroad, is entitled to the expenses of his journey home ; his contract was made in contemplation of service in England. See p. 190, infra. (x) See Stuniore, IFestun ^- Co. v. Breen (1886), 12 A. C. 698. (.(/) Clemson v. Hubbard (1876), 1 Ex. D. 179; lioives v. Press, [1894] 1 Q. B. 202. And see as to penalties for certain breaches of contracts of service, Con- spiracy and Protection of Property Act, 1875, ss. 4, 5 : printed in Pt. ii., infra. M 16J3 CHAPTER XVI. SPECIFIC PERFORMANCE. A CONTRACT of hiring and service, work and labour, or apprenticeship, will not be specifically enforced. The remedy of a master or servant claiming redress for the breach of such a contract is an action for damages. In contracts of hiring and service the parties bargain for the personal qualities of each other. One servant is not as suitable as another, any more than one piece of land is as good as another ; and at first blush it might seem that the reasons which have induced Courts of Equity to decree specific performance of contracts relating to land would equally apply to contracts relating to services. In point of fact, Courts of Equity did at one time act iipon this view, and the books contain more than one instance in which masters were ordered to retain in their service persons whom they had improperly dismissed (a). This is, however, no longer done. Courts refuse to interfere in order to prevent a master discharging a serAant ; if improperly dismissed, the latter must seek his remedy in an action for breach of contrnct. It is thought inadvisable to force upon a master a servant whom he does not like, and with whom he must be brought into close proximity. "We are asked to compel one person to employ against his will another as his confidential sei'vant for duties with respect to the due performance of which the utmost confidence is required. Let him be one of the best and most competent persons that evei' lived, still if the two do not agree, and good persons do not always agree, enormous mischief may be done" (b). (a) Sallv. Coggs (1710), 1 Bro. Par. C. son v. Shrewshury and Birmingham Rail. 140; East India Co. v. Vincent (1740), 2 Co., see note \c) : and Selborne, C, in Atk. 82. See Campbell's edition of Wolverhampton tf- W. Rail. Co. v. London 'ErBser's Master and Servant, 102. ^- N. W. Rail. Co. (1873), L. R. 16 Eq. (b) Per Knight-Bruce, L. J., in John- 433, 439. SPKCIFIC Pi:RFOR>rANCE. 163 Another reason against interfering, mentioned in the above case, is that there could be no " mutuality." A Court could compel a master to retain in his employment a certain servant : it could not compel the latter to perform faithfully his part of the contract, and to work diligently and skilfully (6') . The difficulty of securing real performance of such a contract is too great. Hence, if the substance of an agreement be an agreement for personal service, even though it be connected with other matters, the Court will not decree specific performance [d). What Courts have refused to do directl}', thoy may by injunction effect indirectly. If a contract of service contains a positive agree- ment to do something and a negative agreement not to do another, they will restrain the breach of the negative agreement even though they are unable to enforce the affirmative. This is a comparatively new branch of Jurisprudence. For a time the Courts occasionally refused to interfere by injunction in aid of the negative part of an agreement when they could not enforce the positive part(r^). Since the decision of Lord St. Leonards in Lumley v. Wagner (/), in 1852, they have acted differently. (c) Pickering v. Bishop of Ehj (1843), 2 Y. & G. C. C. 249. (A bill praying that the plaintiff might be quieted in the office of receiver-general to the de- fendant, and that the defendant might be restrained from preventing the plain- tiff exercising the duties of the office ; dismissed.) SlockcrY. Brnckclbaitk (1851), 3 Mac. & G. 250. (Plaintiff, manager of the business of the defendants, dismissed by them for negligence ; reversing an order by Lord Oran- worth, V.-C, Lord Chancellor Truro refused to restrain the defendants from excluding plaintiff from the exercise of his duties as manager.) Johnson V. Shrewsbury ij' Birmingham Rail. Co. (1853), 3 De G. M. & G. 914. (Agree- ment that plaintiffs .should run and work all the trains of the company, and provide foremiin, mechanics, lVc. ; Lord Justices Knight Bruc(^ and Turner refused to restrain the defendants from discharging plaintiffs.) Wchh v. England (1860), 29 Beav. 44. (Apprentice dis- missed by master ; Master of the Rolls refused to cancel articles of apprentice- ship, or to order a return of a portion of the premium.) Chaplin v. London ij- North- Western Rail. Co. (1862), 5 L. T. (N. S.) 601. (Agreement by -which the plain- tiffs should collect, and deliver goods at certain stations of the defendants ; Wood, V.-C, refu.sed to restrain the defendants from terminating the ar- rangement.) Ogdenv. Fo.wjcA- (1863), 32 L. J. Ch. 73. (The Court refused to enforce an agreement wherebj- the defendant agreed to grant the plaintiff a lease of a certain wharf, and plaintiff' agreed to employ defendant as manager of the wharf.) Peto v. Brighton, Uckfield, i-c. Rail. Co. (1863), 32 L. J. Ch. 677. Gillis V. McGhee (1863), 13 Ir. Ch. 48. (Plaintiff' engaged to take management of baths ; no specific performance.) Mair V. Himalaya Tea Co. (1865), L. R. 1 Eq 411. {d) Ogdcn v. Fossick, see note (c) ; White V. Bobg (1877), 37 L. T. (N. S.) 652. See remarks of Jessel, M. R., in Rigby V. Connol (1880), 14 Ch. D. 482, 487- See Bainbridge v. Smith (1889), 41 Ch. D. 462, per Cotton, L. J., at p. 474. {e) Eemble v. Kean (1829), 6 Sim. 333 ; Kimberley v. Jennings (1836), 6 Sim. 340. (/) 1 D. G. M. & G. 604 ; Willis v. Childe (1851), 13 Beav. 117 (injunction restraining trustees of a grammar school from removing master) ; and Dniiqars v. Rivaz (1860), 29 L. J. Ch. 685 (iujunc- M '4 164 SPECIFIC Pi;KFOKMANCi:. Tliere the defendant, .1 singer, agreed to sing during a certain period at the plaintiff's theatre. She also engaged not to sing at any other theatre or any concert witliout tlie plaintiff's written authority. Lord St. Leonards held that, though unable to compel the defendant to perform her agreement, he could and ought to restrain her from singing elsewhere than at the plaintiff's theatre. But the Courts are averse to extending the decision in Lttmloj v. Wagner [g). The presence or absence of a negative covenant is only an illustration of the principle guiding the Courts in these cases, viz., that it is only in respect of a well-defined "specific thing upon which you can put your finger " (/?) that an injunction will be granted. In WJtitivood CJicmical Co. v. lldnhnan {//) the defendant had agreed to give " the whole of his time " to the plaintiffs as manager. The Court of Ap])Hal refused an injunction, Lindhy, L. J., referring to the somewhat " anomalous " character of Liniilci/ V. Way tier (at p. 'f'i.S), and basing his judgment on the fact that, in the absence of a negative covenant, there was nothing to make that particular case an exception to the rule that contracts of service are not specifically enforced ; while Kay, L. J. (at pp. 431, 432), deprecated any addition to the small number of cases where injunctions had been granted in the absence of negative covenants. One of them, indeed, Mo))tague v. Flockfon (/), is there disapproved. On the other hand, in National Provincial Bank Y. 3Iars/ia /I {/>•), a clerk in the service of the plaintiffs had entered into a bond, subject to a condition to pay 1,()()0/. liquidated damages if at any time within two years he accepted employment in another bank : he resigned his post and within the two years tion restraining the eldfjrs and deacons employ the plaintiff as broker ; Court of a French Protestant clmreh from hin- refused to compel the defendants to issue dering the plaintiff, the pastor of the advertisements with the plaintiff's name church, in the exercise of his duties), as broker when they could not be corn- are cases in which the power of dismissal pelled to employ him as such.) was in question. Some of the cases (^) gee the remarks of Lindley and relate to actors who played at one Kay, L. JJ., in Whitwood Chemical Co. theatre when under an engagement to y, Hanlman, [1891] 2 Ch. 416 ; and of play at another ;c.5r., Montcujne v. Flock- Romer, J., in Ehrman v. Bartholomew, ton (1873), L. R. 16 Eq. 189 ; WcUter [18981 1 Ch 671 V. BUlon (1857), 3 Jur. (N. S.) 432; ^ ,,.^^ '• ii ' t t • unu / Fechter v. Montgomery (1863), 33 Reav. , (^^) . Pf L^dley, L. Z . yuWJntwooJ, 22; Grbnston v. Cunmgham, [1894] 1 U^omiealCovllardman,\\^^\-\lQ\,^^ Q. B. 120. See also BcMattos \. GlLn ^^^ f l?' f"^' ^f'T^^ff, *" Y""^ ^ ^''\ (1859), 4 D. G. & J. 276, and Brett v. ^^f I J^'^.f^^^T* "" W ohcrhampton J East India ^ London Shipping Co. (1864), f «?«'/, ^n o- J;'" r' t't^'J ^^'^ ; 2 H. & M. 404. (Agi-eement by which ^"'\,^'- ^\^'^^^ ^- ^- ^^ ^^- ^^^' ^* plaintiff was to be sole broker of defen- I'P" '*''"' "*^^- dants, and by which his name was to (»)^(1873), L. R. 16 Eq. 189 (an appear in all advertisements of com- actor's case), pany; the defendants had ceased to {k) (1889), 60 L. T. (N. S.) 341. SPECIFIC PKRFORMANCE. 165 took service with another bank. Tlie (.'ourt thouf^'ht there was an ini])lie(i covenant not to serve, and restrained him by injunction. The law cannot bo snid to Ix- in n satisfactory state: every positive sti])idation in a .sense implies a negative (/). But, as has been said, the tendency of the Courts is to leave the plaintiff to his remedy in damages. Courts will also interfere to restrain by injunction persons who have contracted not to practise professions or carry on trades or businesses within certain limits {//<). Under the Employers and Workmen Act, s. 6, a Court of Summary Jurisdiction " may make an order directing the appren- tice to perform his duties under the apprenticeship " {»). The Courts will not enforce the negative clauses in an apprenticeship deed against the apprentice by injunction (o). (/) See the remarks of Fry, J., in supra; Houardw. Woodward (I860), 34 Bomiell V. Bennett (1883), 22 Ch. D. L. J. Ch. 46. ooK J c T J -Di 1 u • n ; J (") 38 & 39 Vict. c. 90 ; as to seamen, 830; and of Liord Blackburn, m xJoAer^v ^ J- c -o -ir- j. />« cnn nn, •' see .57 & 08 Vict. c. 60. ss. 222 — 224. V. Allman (1878), 3 A. C. 70!1, at p. 730. (0) De Francesco v. Barnum (1889), 43 {tn) See Chapter VIII. pp. 101 et seq., Ch. D. 165. See p. 62, note (c), supra. 166 CHAPTER XVII. LIEN. A WORKMAN has a lien upon all materials which have been delivered to him to be mended, repaired, or improved, or made up, and upon M^liich he has expended labour or money. Many systems of law give to workmen, artificers, &c a lien for their wages on the buildings, &c. in wliieli tliey have been engaged. English law recognises the following liens : (a) Special or possessory liens on materials, &c. in the possession of the workman ; a lien of which Avorkmen who do work on materials in their own houses may avail themselves, but which does not extend to workmen in shops, factories, mills and premises of their employers ; (b) A general lien for a balance of account which is established by express contracts, or custom, and which is possessed by carriers, for example, or wharfingers {a) ; (c) Various maritime liens ; e.g., of a crew for wages, — of a master for wages (b). A special lien is created when labour lias been expended upon any object. A shipwright repairs a ship put into his possession ; he has a lien for his remuneration (c). An article is delivered to a workman ; he expends no labour upon it ; he cannot set up a lien {(I). It was for a time su}(})0scd that if the price of a work- (a) As to proof of general lien, see Liens, p. 11. Rushforth v. Uadfield (1806), 7 East, {h) 57 & 58 Vict. c. GO, s. 1G7 ; and 224. As to lien of a purser for wages, for disbursements properly incurred, see Friyice George (1837), 3 Hag. 376. ih\d., sub-s. (2). See The Sara (1889), In the United States liens have been 14 A. C. 209, in consequence of which much extended beyond Common Law decision the law was altered ; The C'a.stle- lieus, by statutes. "The first attempt ffati', [1893] A. C. 38. to create a mechanic's lien arose from a (c) Fra)iklin v. Hosier (1821), 4 B. & desire to improve as speedily as possible Aid. 341 ; Ex parte Wiltoughhij, In re the city of Washington, as the seat of JFestlake (1881), 16 Ch. D. 604. the permanent Government of the {d) Chapinan y. Allen, Cro. Gar. 1. 271 United States " : Phillips on Mechanics^ (no lien on cattle taken in to feed). IJKN. 167 man's services were fixed, no right of lien existed (r). But since the case of Chase v. Wostmotr ( /"), the contrary doctrine has been recognised. An agreement to do work may be of such a character as to exclude a lien ; but the mere circumstance that a particular price for work to be done is fixed is not conclusive {(j). A lien may be excluded by the fact that credit is given (//). The justification of this right is the fact that value has been imparted, or labom" expended upon a certain article. It has been held that a livery-Mable keeper has not a lien for the keep of a horse delivered to him in the way of his trade (/), and that an agister of cattle has no lien in the absence of an express agree- ment (/.•). On the other hand, a trainer, it is said, has a lien on a horse delivered to him to train ; the horse has received additional value (/). Ob^^ously such a distinction is in many cases difficult to apply. Wiiat, for instance, is the position of an analytical chemist, who has assayed ore, or a jeweller who has at the request of a customer ascertained the specific gravity of a jewel ? Is it to be said that ho has no lien unless what he has done has made the ore or the precious stone more valuable than it was ? There are expressions in the authorities which seem to show that no lien would exist unless that were so. But it seems probable that the Courts would favour the existence of a lien wherever labour and skill had been bestowed, and that it would be sufficient for a work- man to prove that he had done that which he was engaged to do. A servant has no lien upon the property of his master which he as a servant has in his possession or custody. (e) Whitaker ou L'uii, ]}. 17. (1846), \o M. & W. 553. (A conveyancer (/•) (1816), 5 M. & S. 180. (Wheat has no lien ou a deed -'with and in sent in different parcels at ditt'erent respect of " which he has done business times to be ground ; the price lixed ^^^ tlie owner, unless he has expended upon for grinding, lbs. a load; the labour ou the deed.) Sanderson \. BcU miller had a lieu for the whole.) (1834), 2 C. & M. 304. (Auctioneer en- ,,,,,, n /loi.M - rr i. trusted with morty-ajje deed in order to id) Hutton V. Braqii (1816), i launt. ., , , . ; "^., ,- \ ,r.-)r ././ V /' recover the debt due thereon ; no lien.) ' "''■ As to solicitor's lien, see Cordery ou (/() Raitt V. Mitchell (1815), 4 Camp. SoUcitors (3rd ed.), p. 354 et neq. ^^^- [l) Jacobs V. Lalour (1828), 2 M. & P. (0 JutkoH V. Etheridgc (1833), 1 C. & 2OI ; Scarfe v. Morgan (1838), 4 JI. & W. M. 743. -270. (Mare seut to be covered by stalliou (/■•) Jackson v. Uuininins (1839), •") M. belonging to the plaintiff ; the plaintiff .S: W. 342. See also Stcadinan v. Ilocklci/ has a lieu on the mare.) 168 LIEN. This proposition is intended to give the effect of R. v. Sankey {in) and Neichigton Board v. Eldridge {n). In the former the town clerk of LudloAv claimed a lien on papers of the corporation on which he had Avorked as attorney or solicitor. His claim was sustained ; but he had no right to retain muniments with respect to which he liad done no work, and which he held as town clerk and as servant of the corporation. In the latter case, a solicitor, who was clerk to a local board, sought to retain papers and books belonging to it. Bacon, V.-C, ordered him to deliver them up. But the Court of Appeal, thinking that the question of lien involved the very question to be tried in the action, varied the order, and directed the papers to be delivered only upon payment of tlie sum claimed by the plaintiff into Gom^t. If a workman is supplied with the raw materials by his master, and works them up upon the premises of the latter, he has no lien ; he never had possession (o) . For the same reason when a servant, as such, has any article belonging to his master in his possession, he has no lien. The servant's possession is in these cases his master's, and no lien attaches. Lien is a personal right {p) and cannot be transferred {q) ; nor does it carry with it any right of sale (>■) . It is intended to protect a workman's right to remuneration, and the actual expenses of a bailee cannot be included (s) . A lien may be lost by giving up possession of a chattel. For reasons which are not altogether satisfactory, it has been laid down that a person loses a lien if he claims a right to detain a chattel upon any other ground than that of the existence of a lien, or if he claims more than is actually due [f). It is submitted, however, that this view is not correct. The question is one of intention. In the words of Parke, B. {u), it is incumbent to show that the person (w) (1836), 5 A. «& E. 423. claiming tliem ; he may not detain them in) (1879) 12 Ch. D. 349. against owner until the latter repays , , „ I,'- TT ■ /ioni\ A T> freight, which the former has paid.) (o) Franklin v. Hosier (1821), 4 3." ^ ' & Aid 341 (') Thames Ironicorks Go. v. Patent , /-n ^^ r • -n I.- i^ i i>«Tic/j Co. (1860), IJ, & H. 93. ip) Buller, J., in Daubtgriy v. Duval ^ " (1794), 5 T. R. G04. Story on Bail- {■') "^o'"*'' "^- J^ritish Empire Shipping menislB. 440. ^^o. (1860), 8 H. L. C. 338. {q) Selwyn's Xisi Prins, 13tli ed., (0 Boardman v. -Si^Z (1809), 1 Camp. p. 1320. No lien will be required by 410; Knight v. Harrison {\^T6), citediio. wrongfully obtaining possession: Lvm- Scarfe v. Morgan (1838), 4 M. & W. at priere v. Pasley (1788), 2 T. R. 4:So. P- 'i''^- (Goods delivered to a person wrongfully [u] Scarfe v. Morgan. I. c. at p. 279. LIEN. 169 entitled to the lieu has agreed to waive it, or has agreed to waive the necessity of tlio tender of the less sum due. A person can only give a lien upon deeds to the extent (;f his own interest (.r). A seaman has a lien for his wages on the ship upon which he has served. It extends to the whole of the ship, and not merely as a ship, but to every plank {ij) . It affects even a hand fide purchaser of the vessel without notice ; and it takes priority over fdl otlier liens upon the ship (;:) ; though the lien of a shipwright or other " material man " engaged on a ship takes precedence of the lien for wages earned subsequently {a) ; and in the case of a foreign ship the lien for damages for collision caused by the foreign ship's default takes precedence over tlie crew's lien for wages (/.*). A master's claim for wages and disbursements, whenever earned or made, takes priority over the claims of mortgagees (c). If the value of the sliip is insufficient to pay the wages, seamen may require the freight to be paid into the Admiralty Court to meet the deficiency. Any agreement by which a seaman agrees to forego this lien is void (r/). There is no maritime lien for ordinary towage services rendered to a ship {e). (.r) Turner v. Zf«.s' (IS^o), 20 Beav. The Lyons (1887), 6 Asp. 199; and of 185. mortgagee over "material men's" (i/) Neptune (1824), 1 Hagg. 23S ; claim, The Two Elkns (1^12), S Moore, Mtkonna d' Idra (1811), 1 Dod. 37. ?• C. (N. S.) 398. (.) The Sydney Cove (1815), 2 Dod. \^} l'," ^'« (j^^S), 8 P. D. 129. 13; The Batavia (1822), 2 Dod. oOO ; ,Jfl ^''' -^^o/'* (18 '3) 1 Asp. 563; see The Margaret (!862), 3 Hag. 238. *^^^ ^^^^^ ^^ ^? "f^'^ters claims and bot- tomry boudholders, and The Union {(i) Immacohta Concezione (1883), 9 (1860), Lush. 128, as to seamen's liens P. D. 37 ; The Gustaf (1862), Lush. 506. for wages and bottomry bondholders. See as to precedence of mortgagee's (d) 67 «& 58 Vict. c. 60, s. 156. claim over claims for necessaries, in- {e) U'eslrnp v. Great Yarmouth Steam eluding wages paid at owner's request, Carrying Co. (1889), 43 Ch. D. 241. 170 CHAPTER XVIII. DUTIES OF SERVANTS. Servants arc bound to obey the lawful orders of their masters, and they may be dismissed without notice for wilful disobedience of such orders (a). Tlie obedieuce which is required is not limitless. A servant is not bound to obey unlawful orders, for example, to commit a breach of the Factory Act. Neither is he obliged to risk his safety {b). There may undoubtedly be cases justifying a wilful disobedience of such an order {sell, not to leave the house) ; as where the servant apprehends danger to her life, or violence to her person, from the master; or where, from an infectious disorder raying in the house, she must go out for the preservation of her life (c). Servants may not be dismissed if they refuse to perform services of a kind w^bich they did not undertake to perform. A lady's maid cannot be expected to milk cows (d), or a farm labourer to act as a domestic servant {c) . A seaman, who is engaged for one («) As to the general principles stated cruel tieatiiieut by the master : Edivards iu the text, see Lord Abinger in Prjfswtl {ISl'), 2 Stii. 'IfyG. should, by every steamer, forward to (l) Law of Master and Servant, p. 405. New York a letter containing European In a case, (m appeal from the County news, and that defendant wrongfully Court, decided by Coleridge, C. J., and neglected so to forward; and also that Manisty, J., Michaelmas Sittings, 1880, defendant employed plaintiff upon con- Shield V. Lcffffe, the Court held that dition that he might draw bills for the refusal to obey a lawful order to fetch amount of his salary as it became due, books did not warrant dismissal when a but not for any sum not due ; but master, by his language and conduct, plaintiff wrongfully drew on defendant ; had provoked a quarrel, aud the servant both pleas held bad on demurrer. The had, in fact, obeyed shortly after it was case may be said to turn on pleading.) over. Misconduct on the part of the See remarks of Kekewich, J., in Whit- servant may not go to the wliole con- tvuod Chemical Co. v. Hardman, [1891] sideration of the contract: e.g., in Gould 2 Ch. 416, at p. 419. (m) The following are some of the chief decisions relating to obedience : — Good Geodnd foe Dismissal. Not Good Gkound foe Dismissal. Spain v. Arnott (1817), 2 Sta. 256. Callo v. Brouncker {\'8,^\), i C. & P. (Refusal by a farm servant to go with 518. (Defendant alleged that her ser- his team durinj;^ usual dinner hour to a vaut, a couri«^r, stopped at a particular place a mile oft till he liad had dinner ; hotel contrary to orders ; appeared but it is doubtful wliether this case sulky when remonstrated with, and would be followed.) Itcid v. Dunsmorc neglected to come several times when (1840), y C. & P. 588. (A journeyman rung for. Park, J., in directing the GROUNDS OP" DISMISSAL. I7;j A servant is bound to bo reasonably dilig-ent and faitliful in his service, and lie may be dismissed for habitual neglect of his duties. It is impossible to define the precise degree of fidelity wliicli is required ; it varies accordiDg to the nature of the emploj^ment. It is not every failure in faithful service, or every act of negligence which will warrant a master taking the extreme step of dismissing liis servant (ii). Sometimes it is said that it is the habit of neglect- ing a master's interests, which goes to the root of the contract, and warrants him in putting an end to it. In FUlieul v. Anmt ro)Kj {o) , painter sent by his master to work at a gentleman's house, and ordered to keep to the walks : circumstance of his beinj; found in one of the preserves a good ground for dismissal.) Ilenno v. Btnnett (184'2), ."5 Q. B. 768. (Plaintiff, em- ployed as a carpenter's mate on a South Sea voyage, to be paid, on the discharge and .sale of the cargo, a proportion of the nett profits ; when the captain died, and the mate, a foreigner, took com- mand, plaintiff refused to work the ship except to an English port.) Turxcr v. Mason. See p. 171, supra. LUIeif v. Elwin (1848), 11 Q. B. 742. (Plaintiff, a waggoner, refused to work during harvest until eight in the evening, because strong beer, of good quality, not supplied him according to an alleged custom, not established by evidence.) Churchward v. Chawbrrs {I860), 2 F. &F. 229. (Messman of a regiment refused to send up dinner. The colonel having threatened to put him under arrest, he then served the dinner, which had been delayed half an hour : held, that mesa committee were entitled to dismiss him, though next day ho apologised.) Bcale V. Great WcsUm Rail. Co. (1901), 17 Times L. R. 450. (Platelayer, having worked duriug day, refused to proceed to night work without additional allow- ance for the hour of his own time taken in travelling to his work.) («) It is sometimes alleged that the command uiust be "just and reason- able": Gibbon on Contracts, p. 143; Wood, p. 223. But unless ''reason- able" means only lawful, and within the scope of the servant's duties, the qualification seems not justified. See Jacqiwt v. Bourra, n. [m) , sapra. ' ' It is not every failure in faithful service which will warrant a master in dis- charging his servant, and, if he does, he must discharire him on the occasion jury, said that " There was a contract for a year, with an implied agreement that if there was any moral misconduct, either pecuniary or otherwise, wilful disobedience or habitual neglect, the defendant should be at liberty to part with the plaintiff " ; but he added, " no such conduct had been proved." Jact/aot v. lloiirni (1839), 7 Dow. 348. (Action for wrongful discharge of plaintiff and his wife; plea that the plaintiff's wife obstinately refused to' work for the de- fendant ; but on demurrer plea held bad, because not showing a disobedience of reasonable commands.) Price v. Mouatt (1861), 2 F. .V: F. 529; (1862), 11 C. B. N. S. 508. (Plaintiff, en- gaged as buyer : refused to obey an order to card lace, was dismissed; jury found that carding lace was not within the duties of buyer.) of this misconduct, and not at any time after, at the master's option " : pir Bram- well, B., in Hortoii v. McMitrtry (1860), 5 H. «& N. 667, 675 ; Edtcards v. Levy (1860), 2 F. &: F. 94. See Toiii/iiison \. Ashuorth (1885), 50 J. P. 164, where the question was of the workman "absenting himself," and so forfeiting wages ; Baster v. London and County Printing Works (1899), 15 Times L. R. 331 (o) (1837), 7 A. & E. 557. 174 DIJI'IKS OF SKRVANTS. whieli was an action for wrongful dismissal brought by a French master, the defendant pleaded that the plaintiff had absented himself for fonr days without tlie defendant's consent. It was not shown that the defendant had suffered any inconvenience in carry- ing on his school ; and it was therefore held that he was not justified in dissolving the contract. If a servant were frequently to absent himself without leave and to sleep out at night, he might be dismissed without notice (p). Even absence for a day or a single liour miglit, in certain circumstances, show such wanton disregard of his employer's interests as to excuse dismissal. An actor who failed to be present at a first night, a printer who quitted his work shortly before a newspaper went to press, might no doubt be at once dismissed ( pp) . A master may, of course, recover from his servant damages which he has suffered by reason of the servant's negligence or misconduct or breach of contract. In Sfumore Weston 8f Co. v. Breem (q), the master of a sliip was held liable to the owners for signing bills of lading which contained incorrect dates of the shipment of goods. When a servant or workman receives materials to be dealt with in the course of his business, he is a bailee coming Tinder tlio fifth of the six divisions described by Holt, C. J., in Cof/r/.s v. Jkn-nard {>•). His duty is " to use ordinary diligence in tlie care and preservation of the property entrusted to him." A watchmaker, for example, with whom a watch is left is bound to use ordinary care in keeping it (-s) . So, where the servant of a merchant was entrusted in the absence of his master with his goods, and caused them to be landed before the customs duties were paid, and the goods were consequently forfeited to the Queen, it was held that an action on the case lay against the servant (/^). " A watchmaker, having a watch left with him for repairs," says Story {it), " is obliged to use ordinary diligence in keeping it ; and if lie omits it, and tlie watch (p) Robinson v. Hindman (1800), 3 his chargfe.) Hu.i.se;/ v. I'aci/ (1666), 1 Esp. 235. Lev. 188. (A servant who knovviu^'ly {pp) See App. at p. 192, infra. caused his master to break a certain (q) (1886), 12 A. C. 698. In Boiccs covenant liable to action on the case.) V. Press, [1894] 1 Q. B. 202. the Court Havn(jpv. Walthvw (1706), 11 Mod. i;J5 : of Appeal held that a refusal by miners. Story on Agency, s. 310. in obedience to a preconcerted plan of (>) (1703), Ld. Raym. 900; 1 Sm. action, to go down in a certain "cage" L. C. 184 and 204 (11th ed.). into the mine was an " ab.senting thcin- (s) Glarke\ . Earnshaw iy^li) , IGow. 30. selves" from work such as might make {t) Levison v. Kirk {7 James I.), Lane, them liable to substantial damages. See 65; Hussy v. P.?cy (1666), 1 Lev. 188; Countess of Salop v. Cromptun (1600), Walker v. The British Guarantee Associa- Cro. Eliz. 777. 781. (Trespass against, lion (1852), 18 Q. B. 277. shepherd, who killed sheep entrusted to (m) Bailments, sect. 429. GROUNDS OF DISMISSAL. 175 is lost, he is liable for the value in damages. So a workman is bound not only to guard the thing- hailed against ordinary hazards, but also to exert himself to preserve it from any unexpected danger to which it may be exposed." The case generally cited in support of this doctrine is Lcck v. Blaedner {x). The proprietor of a dry dock received a ship for the purpose of repairing it. The dock- gates were burst by an unusually high tide, and tlie ship was injured. Only one watchman was left to take care of the shipping. Lord Ellenborough ruled that it was the duty of the defendant to have had a sufficient number of men in the dock to take measures of precaution when the danger was approaching, and that he was answerable for the effects of the deficiency. A servant is bound to act with good faith, and to con- sult the interests of his master, and may be dismissed for misconduct injurious thereto (,y), though such misconduct does not relate to the servant's particular duties [z). This is a general description of a class of cases resembling some of those already noticed. No very precise account of their nature can be given ; and the Courts state variously the grounds upon which they base their decisions. Sometimes the failure to comply with this duty is described as a breach of trust ; sometimes it is alleged that in the contract of master and servant is an implied term that " the servant shall act with fidelity towards his master " {a). All that can be done is to show by a few illustrations the manner in which Courts have acted with regard to this point. Disclosure of a master's trade or business secrets, disclosure of family secrets {h) , disclosure of the accounts of a company to a person connected with another company (c), advising and assisting an apprentice to quit his master's service [d), entry by a clerk of a compau}' on the margin of a minute-book of a protest against a resolution of the directors to call a meeting to appoint his (.r) (1807), 1 Camp. 138. p. 319. ()/] Ardingv. Lomax (1855), 24 L. J. (b) Per Best, G. .T ., in Beestoti v. Colli/er Ex 80. (18-27), 2 C. & P. 607. h) Pearcev. Foster {18SG) , 17 Q. B. D. (c) East Anglian Rail. Co. v. Lythgoe 536 (C. A.). (1851), 2 L. M. & P. 221 ; also Mercery. («) Seethe judgment of Turner, V.-C, Whall (1845), 6 Q. B. 447. ia Morison v. Moat (1851). 9 Hare. 241, {d) Turner v. Robinson (183.^). ^ B. & at p. 255, quoted by Kay, L. J., in Ad. 789. See as to solicirinir business, Robb V. Green, [1895] 2 Q. B. 315, at Nichol v. Martyn (1799), 2 Esp. 7^2. 176 DUTIES OF SERVANTS. sueceissor (r), tin acting manager ridiculing and finding fault with his master's arrangements and choice of plaj^s so as to excite dis- content among the actors (,/"), receiving money contrary to express orders {()), speculation on the Stock Exchange by the clerk of a merchant, whose customers consulted him as to their investments {It), secret receipt by a managing director of commissions from com- panies, with whom he contracted as agent for his (employers (/) — in all these instances masters have been warranted in dismissing servants. And the Court will restrain by injunction, often accom- panii^d by damages, the use or publication by clerks and servants, to the prejudice of the master whose service they have left, of information collected during their service with that master (/.). In The Worf/n'n(/fo)i Pi(iii/>/n(/ EiKjiite Co. v. Moore (/), the defen- dant had been the solo and confidential agent and representative of the plaintiffs for th(^ sale in England of their special pumps. The defendant had been dismissed. The i)laintiffs asked for a declaration that the defendant held as trustee for the plaintiffs certain patents taken out by him while in their service in respect of improvements in the plaintiffs' pumps. Byrne, J., made the declaration asked for. I recognise and quite appreciate the principle of those cases which have established that the mere existence of a contract of service does not, per se, disqualify a servant from taking out a patent for an invention made by him during his term of service, even though the invention may relate to subject- matter germane to, and useful for, his employers in their business, and that, even though the servant may have made use of his employer's time and servants and materials in bringing his invention to comialetion, and may have allowed his employei's to use the invention while in their employment ; but, on the other hand, without repeating what has been so fully and admir- ably expressed by the Court of Appeal in the two cases of Lamb v. Evans (k) and Rohh v. drcfu (k), it is clear that all the circumstances must be considered (e) Ridgway v. Hungerford Murkct Co. tomers' names and addresses.) Merry- (18,S5), 3 A. & E. 171. icmther v. Moore, [1892] 2 Ch. 518. (/) Lacy V. Osbaldinton (1887), 8 (Taking- away a table of diinen-sious of C. & P. 80. enjrines Kecretly compiled before leaving [g) Bray v. Chandler (18.56), 18 C. B. service.) Helnwre v. Smith (2) (1886), 718. 35 Ch. D. 449, particularly the remarks {h) Fearccv. Foster (1886), 17 Q. B. D. of Howen, L. J., at p. 456. (Using a 536. (" Conduct incon.sistent with a list of customers for the purpose of faithful discharge of liis duties.") The libelling his late master's business by wh(»le question is most fully discussed circular.) And see Tuck v. Friester in this case. (1887), 19 Q. B. D. 629 ; Lam/) v. Evans, (i) JJoston Beep Sea Fishing and lee (Jo. [1893] 1 Ch. 218. (Use of materials V. Ansell (1888), 39 Ch. D. 339. entrusted to defendants as employees of [k] liohh V. Green, [1895] 2 Q. B. 1 ; the plaintiff.) Summers v. Boyce (1907), iUd. 315 (C. A.). (Using for soliciting 23 Times L R. 724. custom a list of his late master's cus- (/) (1902), 19 Times L. R. 84. GROUNDS OF DISMLS.SAL. 177 in each case. I consider that, boarinp^ in inind the principles laid df)\vn in the authorities to which I have referred, it is impossil)le to say in the present case that the defendant has established the right he claims, having regard to the obligations to be implied arising from his contract of service, and I am of opinion that his case is inconsistent with an observance of that good faith which onght properly to be inferred or implied as an obligation arising from his contract (//?). Conduct on the part of a servant wholly inconsistent with his position as such, and showing an intention to assert another position than that which he properly has, would be good ground for discharging him. Thus, a claim to be a partner by a servant who at certain periods received a portion of the profits of a business, was held to excuse dismissal without notice (>0. For the same reasons dismissal, in cases where a master has been robbed by a servant (o) , or where the latter has been guilty of some act of dishonesty towards the master, would be warranted. Such would be the case even if the master sustained no loss (p). So, too, is desertion by a seaman — that is, abandoning a ship before the end of the time for which he is engaged without just cause and without the intention of returning. The question is always one of fact : Has the servant so conducted himself that it would be manifestly injurious to the interests of the master to retain him ? (q). " I think," said A. L. Smith, L. J., in lio/>h v. Green (r), "that it is a necessary implication, which must be grafted on such a contract, that the servant undertakes to serve his master with good faith and fidelity." (w) I. c. at p. 87. 16 L. T. (N. S.) 60S. (Traveller of a (n) Amor v. Fearon (ISoD), 9 A. <)v: E. distillery compauy bound to remit im- 548; Smith V. Thompson (1849), 8 C. B. mediately all .sums collected by him, 44. (A servant appropriated to pay- sold sctoe of the company's wines to ment of his own salary, which was due, brothel keeper, and neglected to remit 30/., part of a sum remitted to him by sums immediately.) yichol v. Mariyn his master for business purjTOses ; left (1799), 2 Esp. 732. (A clerk or servant to jury to say whether plaintiff guilty at liberty to solicit from his master's of wrongful appropriation.) Horton v. customers business to be given him McMurtry (1860), 5 H. & N. 667. after he quits his master's service ; not (Plaintiff, manager of defendant's fac- so in case of orders to be given him tory, entered into a contract with C. while in master's service.) for supply of bladders, which were (o) Lord Ellenborough in Trotman v. necessary to defendant's business; the Btoni (1816), 4 Camp. 211 ; Cunningham bladders were consigned to G., who v. Tonblanquc (1833), 6 C. & P. 44, 49; let plaintiff have as many as he Spotmoodv. Barrow {\8a^)^ b^x. 110. wanted for defendant's business; it {p) Brown y. Cry/lt (1828), 6 C. & P. did not appear that plaintiff charged 16 (n.). defendant any more than he gave for {q) Vaughan, J., in Lacy v. Osbal- tliem : good ground of discharge.) diston (1837), 8 C. & P. 80. Blenkarn v. Hodges'' Distillery Co. (1867), (r) /. c. at p. 320. 178 DUTIES OF SERVANTS. A servant (domestic) may be dismissed for gross acts of immorality, uiiiitting him for liis duties. Thus a female domestic servant who, while in the service of her master, is delivered of a bastard child, may bo dismissed (.s). So if a man servant debauches a female servant, botli may bo dismissed [f) . A clerk who assaulted his master's maid-servant with intent to ravish her, was held to be rightly dismissed {u). Habitual di'unkenness, if it interfered with the due discharge of a servant's duties, would justify dismissal (.r). The authorities are not clear as to the limitations, if any, with which the above principle must be taken. They lay it down as a general rule that gross im- morality on the part of a servant will be a good reason for the master putting an end to the contract. But, it is submitted, that proposition is too wide. Acts of immorality on the part of a governess, a secretary, a menial servant, or other members of a household, during the time they were employed, would naturally warrant a master in dis- charging them; such conduct unfits them for their place. In Kemp V. Cad(U))gton School Board (//) a headmaster was charged with assault upon a girl and subsequently acquitted. Before his trial and after his committal he was dismissed without notice ; he imme- diately issued a writ claiming an injunction and salary from date of dismissal to the date of his getting another place ; the trial of the action came on after his acquittal ; he recovered the salary claimed, with costs, and the costs of the claim for the injunction. But it is not to be supposed that a cotton manufacturer would be at liberty to discharge one of his hands without notice, or that a newspaper proprietor could dismiss a reporter because he had (.s) It. V. Brampton {\m), Gald. 11; been a considerable amount of discussion Connors v. Justice (1862), 13 Ir. C. L. in the Scotch cases as to when intoxica- 451. As to the examination of a ser- tion is a ground for dismissal. Mr. vant alleged to be oicnnfc. see Lottcr v. Wood seems to indicate tlie true rule limdddi (1881), 50 L. J. Q. B. 448. wiien he says: "In all such cases it is {t) It. V. JFcIford (1778), Cald. 57; for the jury to say, in view of the posi- but see R. v. Westmeon (1781), Cald tiou occupied by the servant and the 129. particular circumstances, whether his (m) Atkin V. Actun (1830), 4 C. & P. discharge is reasonable. A minister '20S. who should become intoxicated on any {x) Speck V. rhilHps{\?,'?,^), 5 M. A: W. occasicm would, of course, be subject to 279, 281 ; JVise v. Wilson (1845), 1 C. & instant dismissal, because inconsistent K. 662; McKcllf/r V. Mfic/arfanc {\Hfy2), with his position ; but a farm labourer 15 D. (2nd Ser.) 246 ; Edicardsv. Mnckie or a clerk, whcm off from duty, upon a (1818), 11 D. (ind Ser.) 67 ; New J'luiui.r holiday, would not " ; p. 212. (1823), 1 Hagg. Ad. 198. There has {y) (1893), 9 Times L. R. 301. GROUNDS OF DISMISSAL. 179 been guilty of immorality which was totally unconnected with his duties and did not affect his reliability as a servant or his fitness to perform those duties (z). The question is discussed in Pearce v. Foster {a), where Lord Esher, M. R., thus deals with it : — The rule of law is, that where a person has entered into the position of a servant, if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a "right to dismiss him. The relation of master and servant implies necessarily that the servant shall be in a position to perform his duty duly and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him. . . . What circumstances will put a servant into the position of not being able to perform, in a due manner, his duties, or of not being able to perform his duty in a faithful manner, it is impossible to enumerate. . . . But if a servant is guilty of such a crime outside his service as to make it unsafe for a master to keep him in his employ, the servant may be dismissed by his master {b) ; and if the servant's conduct is so grossly immoral that all reasonable men would say he cannot be trusted, the master may dismiss him. A servant may be dismissed for gross insolence or rudeness to his master. In most of the cases in which this point was considered, there was insubordination or disobedience. But gross insolence would also warrant dismissal. Each case must be considered by itself ; the social rank and position of the parties and the habits and customary language of people in their condition of life must be taken into account. It is useless to try to give more precision to a matter which is peculiarly one of degree. When an action was brought by a musical critic against a newspaper proprietor (r) "It would appear that improper against morality and the laws . . . and conduct out of the master's household the consequences of it are equivalent to is not a ground of dismissal, unless. a wilful absence " : per Mansfield, C. J., indeed, it can be shown to be prejudicial at p. lo4. And see the remarks of Lord to the master, and hurtful to his feelings James of Hereford delivering the judg- or reputation " : Fraser, ii. p. 413. And ment of the Privy Council in Clouston v. see Head v. Dimsmore, 9 C. & P. at p. Cony, [1906] A. C. 122, 129. 594. (i) See T/iai/re v. London, Brighton % {a) (1886), 17 Q. B. D. 536. See South Coast Sail. Co. (1906), 22 Times Fletchtr V. Knll (1873), 42 L. J. Q, B. L. R. 240, where a servant, who had 55, which turns on a point of pleading ; been contacted of conspiracy to defraud Bex V. Westmeon (1781), Cald. 129. a bookmaker and dismissed by the de- " Here are four days wanting in the fendants, was held to have come within service" (necessary to gain a settlement), a rule providing that, if " dismissed the " and it is by means of his own act that service for dishonesty," anj-^ eontributiug the servant becomes incapable of com- member should forfeit all his contribu- pleting it. His conduct is an offence tions to the superannuation fund. n2 180 DUTIES OF SERVANTS. for wrongful dismissal, and the latter pleaded that the former had been negligent and insolent, Ilill, J., said, " A single instance of insolence on the j>art of a gentleman employed in such a capacity wDuld hardly justify dismissal" (r-j. No doubt the change in manners and usage would be taken account of in deciding this class of cases — what might have once been regarded as insolence would often now be viewed by a judge or jury as only independence. A servant is bound to possess reasonable skill in porforniing the duties wliicli lie undertakes, and gross inconipetence will justify dismissal. "The public profession of an art," said Mr. Justice Willes in Harmer v. Conielim {d), "is a representation and undertaking to all the world tliat the professor possesses the requisite ability and skill." No express representation of fitness is necessary. A warranty of this is implied in the fact that a man holds himself out as a doctor, or an architect, or a painter, or a ploughman. No doubt this would not hold good if tlie employer had notice of the incompetence of his servant before engaging him, or if he chose to employ him iu work for wliich he did not profess to be specially fitted [(') ; as if, to take the case related by Sadi in his Gulistan and utilised by Sir William Jones in his essay on Bailments, a man who has a disorder of the eyes should consult a farrier for the remedy (_/ ). It is equally clear that there is no implied undertaking on the part of a servant to use the highest possible skill. The circumstance that some other workman would have done bettor what was under- taken is no proof that there was a want of care or skill warranting dismissal, or an action for negligence, or a deduction in remunera- {c) Edwanh v. Levy (1860), 2 F. & F. Beltham (1855), 15 C. B. 168 ; Searle v. 94; Smith v. AUni (1862), 3 F. & F. /ejf««/ (1873), 28 L. T. 411. (Servant dis- 157; HanihjHulc v. Arthur, Caiiipbell's missed for incompetence without notice : edition of Fraser's Matter and Servant, held, not entitled to wages.) Lee v. p. 71; &% V. /y«/f/v7/(1867),5 S. L. E,. Walker (1872), L. R. 7 C. P. 121; 64. As to master's right to turn out of liulmer v. Gilman (1842), 4 M. & (i. 108 ; his house a servant who makes a noise Pothier, Louagc, 419 to 433; Story on and disturbs the peace of the familj', Bailments, s. 428. Shaw V. Vhairitie (1850), 3 Vj. & K. 21. , \ ttt-h t • rr ^ >■ {d) (1858), 5 0. B. N. ri. 236; 28 .o^l^^'^f -^^ '^ ^'^'T' ''\? wT L J. C. P. 85. (A scene-painter dis- (^^''^ ' ^'^ J^'^: ?W p ;\'« ^"'^^' ^^ J j; • ^ \ t Baker (1767), 2 Wils. 359; Seare v. ( /") Jones on Bailmenis ; Works, Prentice (1807), 8 East, 348; Jenkins v. vol." viii. 430. GROUNDS OF DISMISSAL. 181 tion (v). Tho degree of diligence required will vary according to tlie delicacy and importance of the occupation (A). A servant may be dismissed if from sickness or other cause he becomes for an unreasonable time or per- manently unable to perform his duties. But if the servant be not dismissed, sickness will be no defence to an action for wages. This principle was affirmed in Ciick.soii v. Stones {i). The plaintiff had agreed to serve tlie defendant as a brewer for ten years at 2/. 10.$. a week. The plaintiff was taken ill at Christmas, 1857, and was unable to attend to his work until July, 1858. He then tendered his services, and was again employed about the brewery. After March, 1808, the defendant refused to pay the plaintiff any wages for thirteen weeks, till July, 1858, when he again attended personally to the business, and was paid wages according to the agreement. In an action for wages for the thirteen weeks in question, it was admitted that the contract had not been rescinded. The defendant set up the defence that the plaintiff was not ready or willing and able to render the agreed service. The plaintiff demurred ; and the Court gave judgment for the defendant on the demurrer. But on a motion to set aside the verdict obtained by the plaintiff, the Court refused to enter judgment for the defendant. Looking to the nature of the contract sued upon in this action, we think that want of ability to serve for a week would not of necessity be an answer ((/) Tiudal, C. J., in Lanphier v. Marine Insurance Co. (1874:), L. R. 10 Fliipos (1838), 8 C. & P. 47o, 479 ; Rich C. P. 125. 145 ; and per Blar^kburn. .J., V. Fierponi (1862), 3 F. & F. 35. in Poussard v. Spiers (1876), 1 Q. B. D. {h) Dig. lib. xix. tit. II. s. 13, § 5 ; 410, 414. The law is thus stated by Story on Bailments, s. 432 ; Pothier, Mr. Bell in his Prineijj/es. Sickness, or Louagc, c. II. s. 4, a. 1. See also inevitable accident, "will excuse non- Cockbum, C. J.. Reasons for Dissent in performance for a short time : but if the regard, to AJuhama Award, Supplement inability should continue long-, and a to London Gazette, 1872, 4139, as to substitute should bo required, the master standard of diligence. Binshaw v. Adam will be dischai ged from his counter (1870), 8 M. 933. obligation to pay wages," sect. 177, (i) (1858), 1 E. & E. 248 ; Campbell, 6th ed. Sickness or incapacity to serve C. J., there ("p. 257) observes : " He (the on the part of an apprentice, however, servant) could not be cousidered incom- does not, in the absence of special agree- , petent by illness of a temporary nature." ment, discharge his master from the Carr v. Eadrill (1874), 39 .L P. 246. covenant to provide for and maintain (Wages in lieu of notice recovered by him ; he takes the apprentice for better workman who was summarily dismissed or worse ; Addison on Contracts (9th after five weeks' absence from work on ed.), 861; R. v. Hales Owen (1717), 1 sick pay.) Warren v. Whittingham Str. 99. Nor is it an answer to an action (1902), 18 Times L. R. 508 ; and see by the apprentice for wages : Patten v. per Bramwell, B., in Jackson v. Unifn Wood (1887). 51 J. P. 549. 182 DUTIES OF SERVANTS. to a claim for a week's wages, if in truth the plaintii}' was ready and willing to serve had he beeu able to do so and was only prevented i'roui serving during the week by the visitation of God, the contract to serve never having been determined If the plaintifl:, from unskilfulness, had been wholly incompetent to brew, or, by the visitation of God, ho had become, from paralysis or any other boiiily illness, permanently incompetent to act in the capacity of brewer for the defendant, we think that the defendant might have detei-mined the contract The contract being in force, we think that here there was no suspension of the weekly payments by reason of the plaintiff's illness and inabilitj'' to work (A-). In Storey v. Fulham Steel Works Co. (/), the defendants agreed in August, 1903, to employ the plaintiff for five years as their works manager. Towards the end of 1905 tlie plaintiff fell ill, and was absent from work from time to time. In January, 1900, his illness became more serious, and he was ordered complete rest for a considerable time and special treatment. He left work. The defendants gave him notice to terminate his contract in April, 1900. In May, 1906, the plaintiff had recovered and was fit for work. Channell, J., held that he was entitled to recover damages for breach of the contract of employment, on the ground that in May, 1900, " the circumstances were not such as to justify the defendants in thinking that the plaintiff never would be able to perform the remainder of the agreement." In the course of his judgment Channell, J., says : — The agreement was for five years, and it contained no provision .... for putting an end to it by notice .... and it was clear, as a matter of law, tliat il such an agreement was made, and if the servant was absent from time to time through illness, the loss fell upon his employer That was clear in the case of an illness that was admittedly temporarj\ In the case of a per- manent illness, or if some injury happened to the servant .... permanently incapacitating him from doing the work, the employer could give the notice then and there If the illness of a servant under an agreement, such as that in the case before him, was of such a character as to indicate that the servant never would be able to perform his contract, and something had to be done at once to supply his place, the contract could be put an end to by the employer That was not the present case. While permanent inability or incompetence owing to sickness would, as the above case shows, warrant dismissal, it would bo (k) Per Campbell, C. J., in Cuckson plaintiff was ill and received sick pay, V. Stones, I. c. at pp. 256, 257. In doing no work, from February to Sep- Nibktl v. Mid/and Rail. Co. (1907), 23 tember, 1905, when lie was discharged. Times L. E,. 240, a railway servant liad Held, that lie could not recover wages joined the defeudauts' friendly society, for the period from February to to whose funds the defendants contri- September. buted. By the society's rules a member (/) (1907), 23 Times L. R. 306; was not entitled to sick pay while re- affirmed by C. A. (1907), 24 Times ceiving wages from the company. The L. R. 89. GROUNDS OF DISMISSAL. 183 a good defencG in an action for nou-perfomianee of service or in an action on a covenant. This was decided in Boast v. Firth (ni), whicli Avas an action against the father of an apprentice by a master for breach of a covenant in an indenture of apprenticeship. The defendant, the father of the apprentice, pleaded that his son was prevented by the act of Grod, to wit, by permanent illness, happen- ing and arising after the making of the indenture, from remaining with or serving the plaintiff. This was considered a good plea, it being in the contemplation of parties to all contracts for personal services that the parties to them should be able to perform them. The right of a servant to wages during temporary sickness is not quite clear. Some writers have drawn a distinction between illness caused by the servant's own fault and that for which he is not to blame (n) . But the authorities, on the whole, show that if the contract of service remains in force, a servant, even if ill, will be entitled to his wages. In Ciickson v. Stones the Court observed : — It is allowed that under this contract there could be no deduction from the weekly sum in respect of his having been disabled by illness from work- ing for one day of the week ; and, while the contract remained in force, we see no difference between his being so disabled for a day, or a week, or a month (o). It is for the jury to say whether the facts alleged against a servant constitute a reason for dismissal. The practice as to this has been by no means uniform. In Ridgwaij v. The Hnngeyford Market Co. (7;), the jury were (;«) (1868), L. R. 4 C. P. 1 ; Tat/lor ill and unable to work owing to his own V. Caldirell (1863), 3 B. & S. 826, 839; misconduct.) Warren v. JFIiittiwjham Appleby v. 3Icyers (1866 and 1867), L. R. (1902), 18 Times L. R. 508. In Rex v. 1 C. P. 615 ; L. R. 2 C. P. 651, revers- Sutton (1794), 5 T. R. 657, it was held ing decision of Court of Common Pleas ; that absence in order to cure a hurt Robinson v. Duvimn (1871), L. R. 6 Ex. received by a servant in his master's 269 (performance of contract to play service, or from insanity, does not bv at a concert excused on the ground of itself determine the relation of master illness). and servant. See also as to insanity (h) See Campbell's edition of Eraser being ground of discharge, R. v. Rulcotl on Master and Servant, p. 140. See p. (1796), 6 T. R. 583. See Swins Code 123, n. [e), snpra. of Obligations, A, 341: " Celui qui a (0) (1858), 1 E. & E. 248, 257; engage ses services a long terme ne perd R. V. Islip (7 Geo. I.), Str. 422; Rex pas ses droits a la remuneration alors V. Sudbrook (1803), 1 Smith, .t5 ; Rex qu'il est empecho d'acquitter de son V. Winterset (1783), Cald. 298; Ex parte obligation pendant un temps relative- Harri-y (1845), 1 De Gex, 165; Carr v. ment court et sans faute, pour cause Hadrill (1874), 39 J. P. 246; K. v. de maladie, de service militaire, ou telle Raschen (1878), 38 L. T. 38. (No answer autre analogue." to an action for wages that plaintiff was {p) (1835), 3 A. & E. 171. 184 DUTIES OF SEKVANTS. asked to decide whether entering a protest on the raarg-iii of a minute-book was a good ground for dismissal. In Alitor v. Fearun (q), Denman, C. J., told the jury that if a servant claimed a right to overhaul his master's accounts, that would justify putting an end to the relation of master and servant. But he left it to the jury to say whether there was a reasonable ground for dismissal. It was objected that he ought to have decided tliis question himself. But tlie Court decided that there was no mis- direction. And this is the view taken by the Privy Council in Cloudon (^ Co., Ltd. v. Cori-y (r). It is not necessary that a servant should be dismissed by I lis master for a valid reason ; it is sufficient if a valid reason in fact exists, even if tlie master bo not aware of it at the time of dismissal. There has been much discussion as to the limits of this rule, and considerable reluctance to adopt it. It was first laid down in Bidfiirai/ V. The Hiingerford Blorket Co. {s). It was followed in Bail lie V. Kell {t), and has been affirmed by the Court of Appeal in Boston Beep Sea, 6fc. Co. v. Ansell{u). In Baillie\. Kell (t) it was supported by the analogy of justification in actions of trespass and wrongful distress. A defendant may justify breaking and entering plaintiff's close under any sufficient legal process open to him at the time, and a person who is sued for distraining wrongfully may set up in justification any legal cause, even although in fact he distrained for another (x). So it was said that it mattered not what ground for dismissal the master alleged ; it was enougli that he had some good ground. At all events, the servant suffered no wrong (y). The rule was qualified tlius in Ci(fbQ>), 1 H. & N. 266. 415. master's right to all earnings, etc. 187 pressed, and put on board a Queen's ship, where he earned two tickets ; they came into the hands of the defendant. It was held that trover for the tickets lay. It seems clear that, to recover liis apprentice's earnings, a master nmst prove the execution of the indenture ; and he would, apparently, tail if it were shown tliat he had licensed the ai)prentice to leave him (/). The same principles appear to extend to servants. " They apply," said Cockburn, C. J., in Jlon'.son v. T/tcw/jhsoii (ni), " to all cases of employment as servants or agents, the profits acquired by the servant or agent in the course of, or in connection with, his services or agency belonging to the master or principal " ; in other words, if the servant receives such earnings or profits he will be treated as the agent of his master, and an action for money had and received will lie at the instance of the latter {)i) ; or the servant will be ordered to account and pay over (o) . No doubt a master, as between himself and his servant or apprentice, is entitled to all which the servant or apprentice, as such, earns ; but as against third persons the master would seem to have a right to his servant's earnings only when he acted as his master's agent. By the Prevention of Corruption Act, 1906 (6 Edw. 7, c. 34), it is made a misdemeanour : (1) For any " agent " corruptly to accept any gift or considera- tion in relation to his " principal's " business ; (I) Anon. (1783), 6 Mod. 70. apprentice deserted from plaiutiflp's {m) (1874), L.R. 9 Q. B.480. See also ship ; went on board defendant's ship ; Thoiiip.-ionv.IIavelocIc {IS08), I Gmni^. 521. defendant persuaded him to remain: {)/) This case does not, however, it is held, plaintitf could waive tort and bring- submitted, overrule TrestveU v. Middlcton, action of assumpsii against defendant.) Cro. Jac. erjS ; 2 Roll. 269. (Judgment (o) Boston, fc. v. Ansell (1888), 39 Ch. for plaintiff, in action for debt ag-ainst D. 339. (Bonuses paid to managing defendant who had retained his servant director of the plaintiff company, as a to make chairs fur five days. Judgment shareholder in other companies, with reversed ; debt did not lie because it which he made contracts on behalf of may be the master never consented to the plaintiffs. Account and payment the retainer, and the servant never of such profits to plaintiffs ordered.) intended t.) contract for his master.) Lister iS,- Co. y. iStubbs {ISQO), io G. D. I. Carson v. JFatts (1784), 3 Doug. 3J0. (Foreman having received secret com- (Prize-mouey gained by apprentice missions in respect of orders given for serving on board ship-of-war does not his employers is liable to them as a belong to master of apprentice. This debtor, but not as a trustee so that they turned on usage.) Eadr.s v. Vaudeput should be allowed to follow the money (1785), 5 East, 39 n. ; but s,Qe Foster v. so received into investments.) Mayor, Stewart, infra. Bright v. Lucas (1796), 2 cj'C. of Salford v. Lever (1890), 25 Q. B. D. Peake, 121. (Indentured apprentice 363, where it was decided that in addition who had deserted from his master' s ser- to the right of action against the servant vice into the service of another cannot for the amount of the bribes received, maintain action for wages against the there was another independent cause of latter.) Lightly v. Glouston (18U8). action for damages against the briber (The ma'ster of apprentice who has been and the servant, jointly or severally, for seduced from his work may maintain the loss sustained by the employer from action of indebitatus assumpsit against the having entered into the contract under person who hjis seduced him.) Fuslcr v. advice given by the servant in pursuance Sletcurl (1814),3 M.& S. 191. (Plaintift^'s of the bribe. 188 DUTIES OF SERVANTS. (2) For any person corruptly to give an " ngont " any gift or consideration in relation to his " principal's" business; (3) For any person to give an '' agent," or for any " agent " knowingly to use any document, &c. with intent to mislead his " principal." By sect. 1, sub-sect. (2), "agent" includes any person em- ployed by or acting for another ; and " principal " includes an employer. If a master hires a servant to design or invent, the inventions belong to the master. Such was the case in 3la]iepeace v. Jficksun {p), in which a calico printer was held entitled to a book in which his colour-man entered the recipes of processes, although the book contained processes invented by the latter. And the particular conditions of the employment may make an employee trustee for his master of patents taken out in respect of improve- ments discovered by the employee during liis term of service (7). Should a master discover some valuable invention, and a workman whom he employs make a discovery subordinate and accessory to it, " such improvements," it has been said, " are the property of the inventor of the original improved principle, and may be embodied in his patent ; aud, if so embodied, the patent is not avoided by evidence that the agent or servant made the suggestions of that subordinate improvement of the primary and improved principle" {r). But if an invention be discovered by a servant, the master, not being the first and true inventor, cannot get a patent (-s) ; nor can he prevent the servant from taking out a patent for it (/). Accordingly Ai'kwright failed to obtain a patent for a certain roller wlien it was proved that he had been told of it by one Kay, whom he had had in his service and whom he employed in making models {i<). ( p) (1813), 4 Taunt. 770. Here, how- for the patented improvemeuts. ever, the action was in trover for the {q) U'orthitu/ioii, dfr. v. Moore (1902), book. rashlcij\. Linotype Co., Ltd. [I'iWi), 19 Times L. R. 84. See remarks of 20 Rep. Pat. Cas. 633. Plaintiff em- B5'me, J., ibid., p. 87, quoted at p. 176, ployed by defendants to devote his whole mpra. time toimprovhig amachine. He made [r) Erie, J., in Allen v. Raimon (1845), several improvements in respect of some 1 C. B. o51, .567. And see B/o.min v. of which patents were taken out by the Jilsce (1825), 1 C. & P. 558 ; Jiollo v. masters at their expense, but in the joint Thompson (1857). 19 D. 994. names of themselves and the plaintiff. («) Rex v. Arkicright (1785), cited in The plaintiff, having- been dismi.ssed. Hilly. Thompson, 8 Taunt. (1818), 375, brouf^ht an action allejring' an agreement 395. to pay him a reasonable remuneration U) Ln the matter of HeakVs Applica- in respect of all improvements whetlier tionsfor Patents (1891), 8 Rep. Pat. Cas. patented or not. A right to reasonable 429. remuneration for the patenfs was ad- («) Curtis, Patent Law, 101. And see mitted. The jury awarded him 310/. lie ItusselCs Patent, 2 De G. & J. 130. GROUND FOR DISMISSAL OF APPRENTICE. 189 An apprentice cannot be dismissed by liis master for misconduct unless there be a stipulation to that effect in the indenture of apprenticeship. This is the common law rule ; and, indeed, the old cases would seem to show that not even a conviction for felony would justify dismissal («) ; but the tendency of the Courts is to qualify this rule(//). Perhaps it would be more correct to say that the mis- conduct which would entitle a master to dismiss a servant will not entitle him to dismiss an apprentice. Thus, in an action against a master for refusing to instruct and maintain an apprentice, in which the former set up as a defence disobedience of orders and other acts of misconduct, the Com-t drew a distinction between the relation of master and servant and that of master and apprentice, and held that the latter contract could not be dissolved for acts of misconduct. "The master has at common law a complete remedy, if the apprentice misconducts himself, by an action for a breach of the covenants. The provisions contained in the statute relative to parish apprentices (2) show that, at common law, the master could not determine the contract if the apprentice misconducted himself " (a). So, in Phillips V. Cliff {b), it was held to be no answer to an action against the master who had turned away his apprentice, that he conducted himself in so dishonest a manner that it became unsafe for the defendant to keep him in his service. The covenants in the indenture were independent ; the master might have chastised his apprentice ; he could not dismiss him ((■) . But a power to dismiss may be provided by the terms of the deed. Thus, where a master agreed to take plaintiff's son as an apprentice for (x) See Austin on Apprentices, 69. {b) (1859), 4 H. & N. 168. See al>o (y) See Cox t. Matheivs (1801), 2 F. & Addams v. Carter (1862), 6 L. T. (N. S.) F. 397. "If the plaintiff was in the 130; Mercer v. Whall (1845), 5 Q. B. habit of stealing, as the defendant alleges, 447 . In TFi-w v. TFilson (1845), 1 0. & K. the defendant would not be bound to rstood till some time after Rex v. Bniinpton, I may refer to Mr. T.ird's book on the " Ijaw of Master and Sei'vant," the first edition of which was published in the end of last century. In the third (jdition, published in 1801, he cites at p. 3 Ilix v. Jii-dinptou, to show that notwith- standing th(5 statute of Elizabeth, if a servant be guilty of incontinence or other moral offence whilst in his master's service, the master may discharge him without application to a justice. But Mr. Bird adds, "neither for rudeness or other misbehaviour of serv.ant, can the master discharge him, before the end of his term, nor can the servant leave his master on account of ill-treatment by the master or mistress ; but in these and like cases, application must be made to a justice for a discharge as directed by the statute of Elizabeth." See remarks of Lord Kenyon in Bex v. JJn/cot (1796), 6 T. R. 587, and Bex v. Satton (1794), 5 T. R. 659. Sections 5, 6 and 9 of the statute of Elizabeth are mentioned by Mr. Crabb in his Digest of Statutes as being in force in 1 844 ; they do not seem to have been repealed until 1875. See Chitty's General Practice (edition of 1837), 13. 76. 1 do not find any clear assertion of the principle, now univer- sally admitted, that a master may for disobedience, &c., discharge any servant, until 1817, when Lord Ellenborough at Nisi Prius, in Spain v. Arnott, 2 Starkie, 256 — a case of a servant in husbandry — said, " He (the master) might have obtained relief by ap])l3-ing to a magistrate ; but he was not bound to pursue that course ; the relation between master and servant, and the laws by which that relation is regulated existed long before the statute." These words seem directly contrary to the express terms of the 5th section. 2. At common law a person is not entitled to treat a contract as at an end for every breach, but only when there is a breach which goes to the root of the matter and which cannot be properly compensated for: Siinjtxon v. C'ripprn (1873), L. R. 8 Q. B. 14. When a singer who had engaged with de- fendant to sing for fifteen weeks, and who had agreed that he would be ready for rehearsals six days before the engagement commenced, failed to attend these rehearsals, it was held that the defendant was not entitled to refuse to take the j^laintiff into his service : BeUini v. Otje (1876), 1 Q. B. I). 183. No doubt failure or refusal on a single occasion to do what one was bound to do under a contract of personal service— as in Poussard v. Spiers (1876), 1 (i. B. D. 410, which was a case of failure on the part of a leading singer to join in the opening iierformance of a new opera — might go to the root of the contract and justify rescission. But ajjart from the decisions which are quoted in the text, it might not have occurred to anyone that refusal by a maidservant to answer a bell, or by a clerk to fetch a book on a single occasion, would justify instant dismissal and forfeiture of wages: Gould V. Webb (1855), 4 E. & B. 933. 193 CHAPTER XIX. RIGHTS OF THK PARTIES AGAINST THIRD PERSONS. Masters may recover damages against persons who wrongfully deprive them of the services of their servants or apprentices : and both parties have a cause of action against third persons for ''maliciously procuring a breach of the contract of employment." The rights of masters and servants arise out of contract. It might therefore be supposed that they would consist merely of rights in personam and not of rights ad rem. This, however, is not entirely the case. The relation is, in some respects, status. The master's rights to the labour of his servants are regarded as rights ad rem ; they are somewhat of the nature of property. Such a right of action as that which is above stated existed from early times. According to Bracton [a), the master might bring an action for insult and disgrace inflicted upon his servant, apparently though he had not lost service {b). Actual bodily injury was not necessary to sustain such an action ; mere intimida- tion or menaces were enough, as appears by "20 Hen. VII. f. 5 {c). The rule clearly recognised nowadaj's is, that the master may recover damages from persons who have wrongfully injured his servants, provided a loss of service is thereby caused. Thus actions have been brought by masters against persons for negligently driving over a servant (r/), administering injurious drugs to him [e), or for injuries from the bite of a dog (/). [a) Bracton, 115 and loo. SeeBigelow or any other person by whom he liveth on Torts ('ind ed.), 180 ; Pollock on Turts or receiveth benefit." See Pollock, Law (7th ed.), 230. of Torts (7th ed.), 230. [b) The rule was different in Britton' 8 [d) Martinez v. Gerher (1841), 3 M. time: Nicholl's Bntton, i. p. 131. & G. 8S. [c) See also Pulton de Pave Rrffis, 3, 4. (e) Bauon's Abridgment, Master and It maybe noted that according to Pulton, Servant, O. the master's remedy for menaces to his (/) Hodsoll v. Stallebrass (1840), 11 servant extended to a "servant, tenant, A. & E. 301. M. O 194 lilUliT^i OF THE PAKTlEa AUAINST TlllKD PERSONS. Common instances of such actions are those whicli are brought against persons who knowingly entice away or procure the departure of servants (//). To sustain such an action, it is not necessary to prove any binding contract of service (//) ; it will be enough for the plaintiff to show that he was actually receiving the benefit of certain services at the time at which the injur}' of which he complains was committed, and that the defendant was aware of this fact. In Liniilci/ v. Gi/e{i), it was held that an action might be brought by one theatre manager against another for procuring a prima donna to break her engagement to sing at the theatre of the former. In short, the action lies when the relation of master and servant does not in the strictest sense exist. The cause of action known as " maliciously procuring breach of contract " has been lately much considered. It has long existed in Englif>h law, and many instances of it are to be found in the Year Books and the early reports (/.•). Such actions were, at first, always raised in connection with contracts of service, strictly so called (/). In IS-O-'} the case of Lionlci/ v. Gi/c {in) extended the action to the case of a contract of exclusive emplo3'ment between a singer and the lessee of a theatre ; the principle of the decision being that " the procurement of the violation of the right is a cause of action" (^/). Bowoi v. ILill{o), in which the contract ig) See Hall v. Hollander (18'2o), 4 B. & C. G60; Lewis v. Fog,, (1782), 2 Str. 944; Foren v. Wihon (1791), Peake, 78. The Scotch Courts have held that a master is entitled to damages from one who induces a servant to reveal the secrets of his master's trade : Eraser, 314. (A) Evans v. Walton (1867), L. R. 2 C. P. 615 ; Ltimley v. Gye (1853), 2 E. & B. 216 ; Bowen v. Hall (1881), L. R. 6 Q. B. 333. Trespass will lie for enticing away a journeyman : Hart v. Eldridge (1774), Cowp. 54 ; altliough only hired by the piece and not for any ciTtain time. Trespass will not lie for inducing a .servant to leave at the expiration of the period for which he was engaged, although he had no inten- tion at the time of leaving : Nichol v. Marlin (1799), 2 Esp. 734. As to evi- dence of enticing away, Kcane v. Boycott (179.')). 2 H. B. 512. (i) See note (/() ; I>e Francesco v. Barnnm (1891), 63 L. T. (N. S) 514 (Action for continuing to employ after notice.) {k) Y. B. Mi( h. xi. Hen. IV. f. i:\, A , pl. 46. See the judgment of Coleridge, J., in Lamley v. Oyr (1853), 2 E. & B. 216, 255 et .sei/., and the cases there quoted . (/) Excluding for the moment cases of the disturbance of rights by means of breache.s of contract. The cases cited by Cromptou, J., in Lnmlry v. Gye, I. c. at p. 228, are only used to rebut the suggestion that the cause of action was limited to cases of moiial service. Per- haps Shepherd v. Wakeman (1 Sid. 79) is an exception, though i.: may be con- (iidered a case of defamation, the loss of maiTiage being evidence of special damage. See the argument of Willes in L'nnley v. Gye, I. e. at p. 221, and the opinion of Cave, J., in Allen v. Flood, [1898] A. C. 1, at p. 35. Wmsmore v. Greenhank (Willes, 577) really turns on the rights of property in a wiiu available against the world {m) (1853), 2 E. & B. 216. («) Per Erie, J., /. c. at p. 232. And see the judgment of Lord Herschell in Allen V. Flood, [1898] A. C. at p. 121 et seq., and of Lord Macnaghten, ibid., at p. 154, and the opinion of Wright, J., ibid., p. 62. (o) (1881), 6 Q. B. D. 333. RIGHTS OF THE PARTIES AGAINST TlirUI) PERSONS. 195 under consideration was also one of exclusive personal service, is the source of the doctrine that " malice " is the gist of the action in these cases ; malice making the defendant's procurement wrongful and, in combination with damage, actionable. " Malice" is there (/;) explained by Brett, L. J., to be " the indirect purpose of injuring the plaintiff (•) re-affirmed the doctrine of Bon-en v. Hall {s) as to " malice," extended the principle to all contracts — an extension now recognised and accepted — and expressly laid it down that a malicious conspiracy to induce persons not to enter into contracts with the plaintiff was actionable, not only on the grounds of the conspiracy, but because it was " rather a fine distinction to draw, viz., that between such a case and a case where there was a subsisting contract" {t). In Flood v. Jackmri [ii) there was no subsisting contract : the plaintiffs complained that the defendant had maliciously procured their employers not to renew a contract of employment with them, which, though terminated, would but for the defendant's conduct have been in the ordinary course renewed. Kennedy, J., at the trial, and the Court of Appeal (n), held, in accordance with Te/npcrfon v. Russell (>•), that there was a good cause of action. That decision was reversed by the House of Lords (r). The result of this decision by the House of Lords is apparently — Firstly, as to " malice," to reject the doctrine of Bon-en v. Hall{s) and Temperton v. Russell (r) ; motive is immaterial ; a lawful act never becomes, simply by reason of a bad motive, actionable : Secondly (and arising out of the first proposition), that the gist of this cause of action is the "wrong" {injuria), whether that " wrong " consist in the breach of contract procured or the un- lawful means, e.g., intimidation, threats, &c., employed to procure it ; both of which elements, their Lordships found, were entirely absent from this case. With regard to " malice," the definition given was " a wrongful {p) L e. at p. 338. {t) I. c. per Esher, M. R., at p. 728. {q) Which is explained by the same "Strikes" and combinations to procure judge, in Trmperton v. Jiiis.v/l, [1893] breaches of coutract are discussed in 1 Q. B. at p. 725, to mean "' a desire to pt. ii. at pp. 569 et seq. injure him in his business in order to [i/) [1895] 2 Q. B. 21. force him not to do what he had a (c; [1898] A. C. 1, under the name perfect right to do." of Allc/i v. Flood. The majority of tlie (r) [1893] 1 Q. B. 715. Queen's Bench judges consulted were (.v) (1881), (5 Q. B. D. 333. in favour of the respondents. 196 RIGHTS OF TIIK PARTIES AGAINST TIIIKD PERSONS. act intontionally done without just cause or excuse "(.r). That definition was, in effect, adopted by Lord Macnaghten in Qidiui v. Leaf /lem {>/), yvhere he says: — ". . . a violation of legal riglit committed knowingly is a cause of action, and ... it is a viola- tion of legal riglit to interfere with contractual relations recognised loy law, if there be no sufficient justification for the interference " ; and it has been acted upon in several recent cases. In liratl v. Friend 1 1/ Soricfi/ of Operaiire SfoncnHisoxH, t^r. (;:), the plaintiff complained of the procurement by the defendants of a breach of his contract of apprenticeship with tliird parties : tlie defendants put forward their contractual riglits against those third parties under the rules of a trade union to wliich they both belonged, or a bona fido belief in those rights, as an excuse for their conduct. The Court of Appeal (s), upholding the Divisional Court (s), held that the evidence disclosed no just cause or excuse for their action. So in Ghimorgan Coal Co. v. South IVaks MinovH' Federation [a), the decisive question was: — Had the defendants justification for procuring breaches of contracts between the plaintiffs and their workmen? Bigham, J., found as a fact that the defendants had no desire to injure the plaintiffs, and that they did notliing more than give the workmen honest and bond fide advice as to their interests, and hold that these facts constituted ]a^\■flll cause and excuse. In the Court of Appeal {a), Vaughan Williams, L. J., agreed mth him; but Komer and Stirling, L. JJ., took a different view of the facts. They held that there had been more than advice, and that the breaches of contract had been ordered and procured by the defendants. Romer, L. J., also laid it down that just cause and excuse is not, in the case of a contract of master and servant, constituted by the absence of evil intention on the ]vart of the defendants towards the plaintiffs per ne, or by either tlie fact or the honest belief on the part of the defendants that it is for the common good of the defendants and the servants who break their contracts that tlie contracts sliould be broken. This view was upheld by the House of Lords (i). While admitting that there may be a justification for that which in itself is an actionable wrong, the House of Lords held that such justifi- cation cannot be afforded by a duty such as was set up by the defendants in this case. [x) Per Bayley, J., in liromagc v. 732. rrosser (1825), 4 B. & C. 247, 255. [a] [1903] 1 K. B. US; (C. A.)ri903l {y) [1901] A. C. 495, 510. 2 K. B. 545. (2) [1902] 2 K. B. 88: (C. A.) ibid., [b) [1905] A. C. 239. RIGHTS OK THK PAKTIES ATUINST TflIRD PERSONS. 197 As regai'ds duty, the question immediately ai'isos — duty to do what ? The defendants have to justify a particular lino of conduct which was wrongful, ■i.e., aiding and abetting the men in doing what both the men and the officials knew WHS legally wrong. The constitution of the union may have rendered it the duty of the officials to advise the men what could be legally d. 430; (no action for enticinjr an N. P. 77 ; by an aunt, Edmondson v. apprentice will lie where the provisions Mitchell (1787), 2 T. R. 4 ; by a father of the deed are unreasonable, and there- by adoption, Irwin v. Dearman (1809), fore unenforceable). See Forbe.i v. Goch- 11 East, 23. This right of action does rane (1824), 2 B. & C. 448. not pass to the plaintiff's trustee in bank- [q) Faivcet v. Beavres (1671), 2 Lev. ruptcy: Howard v. Croivther (1841), 8 63; Fosset y. Brcer (1671), 3 Keb. 59; M. & W. 601. Fores V. Wilson (1791), Peake, 77. (No («) Cox V. Muncey (1859), 6 C. B. N. S. notice necessary in case of action of 375 ; but see the remarks of Bovill, seduction.) C. J., in Evans v. Walton (1867), L. R. 2 (r) De Francesco v. Barnum (1891), 63 C. P. 615, 618 {arguendo), 619. L. T. (N. S.) 514; see R. v. Edwards (o) Blake v. Lanyon (1795), 6 T. R. (1798), 7 T. R. 745; Fades v. Vandeput, 221 ; Ashcroft v. Bertles (1796), 6 T. R. 5 East, 39, note {a) ; (cases of impress- 652. ment of apprentices). 200 RIOIITS OF rilK I'AKTIlvS AGAINST 1 IlIlxM) PERSONS. A master cannot, by writ of Jidhcas corpus, obtain possession of an apprentice in the service of another, unless tlie apprentice is detained against his will (.s). " If an infant of seven or eight years of age covenant \\\i\\ me to serve, he may de[)art when he pleases; but if sucli an infant serve me voluntarily', or by agreement, and a stranger take him from me, or beat him, I shall have a remedy " {t). If the injuries wrongfully inflicted upon a servant cause his immediate death, tlie master has no right of action. The reason of tliis (][ualifieation is very obscure. It was quaintly said by Tanfield, J., in Il/gf/in.s v. Butcher {h), "That the servant dj'ing of the extremity of a battery, it is now become an offence to tlie Crown, being converted into a felony, and that drowns the particular ofiPence and private wrong offered to the master before, and his action is thereby lost." There are several objections to this explanation, which was a dictum not essential to the decision of tlie case. One of these is the fact that Jfl/ife v. Spcffigtic (.r), followed in this respect by Oshorne v. Glllctt {//), has decided that the rule as to a right of action being suspended in case of felony applies only between the person injured and the criminal ; it does not affect a third party, such as the master. According to another explanation, " The master's right to his servant's services is instantly abrogated, and, in the eye of the law, no damage is sustained by him because no right" (~). This reason explains nothing. Does not a right of action accrue to the master between the moment when the injury was inflicted or the wrong done, and the moment when death took place ? And, if it does accrue, what becomes of it ? {a) . Probably the rule originated in a mistake as to the meaning of the maxim Acfio jx'r.soNci/i.s moritiir cnm pcrHOua. The existence of the rule has been disputed by some American (s) R. V. Rcij)iohls (1795), 6 T. R. 497 ; (a) Nevertheless, it is tlie explauatiou Ex parte Gill (1806), 7 East, 376. which Sir Gorell Barnes, P., inclines to {t) Y. B. 21 Hen. VI. 9. accept in Clark v. London General Onmihus (u) (1606), \relv. 90. ^'^^ [1906] 2 K. B. 648, 662, on the ix) (1845), 13 M. & W. 603. "*/^"^*^^ "*' ^passage in the judgment ^ ' ^ '' 01 Gwynne, J., in Mnnaghan v. Horn (y) (1873), L. R. 8 Ex. 88; Appleby (1882), 7 Canada Sup. Court R. 409. The V. Franklin (1885), 17 Q. B. T>. 93. passage referred to is set out in the (;;) Even in Unboruc v. G illclt the rule argument in Clark^s Case, ubl supra, at seems to have been misunderstood. p. 653. RIOTITS OF THE PARTIES AfJAINST TTTTlxM) PERSONS. 201 Courts (h). Whatever be its origin, it is in force. It was stated in Jliggim v. Butcher {<■), and it was affirmed by Lord Ellenborough at ni.si pn'K.s in Ba/{(>r v. Bolton (r/), decided in 1808. It has fVmnd its way into text books (c) ; it was recognised by the Court of Exchequer (Bramwell, B., dissenting) in 1873 in Osborne v. Gillett {e) ; and it has recently been re-affirmed by the Court of Appeal in Clark v. London General Omnibus Co., Ltd. (,/'), where the claim was by a father for damages for loss of service and funeral expenses arising out of the almost instantaneous death of his daughter caused by the defendants' negligence. There are cases in which the facts may be viewed as constituting a cause of action either in contract or in tort ; and a master's or servant's rights of action may depend u})on the view taken. In Marshall v. York, Neiccastle and Berwick Bail. Co. {[/) the plaintiff, a servant, and his luggage were being carried by the defendants on their railway, the master paying the fare. The luggage was lost on the journey ; the plaintiff was held entitled to sue the defendants for their negligence, independently of the contract of carriage. Alton v. 3Iidland Rail. Co. {h) seemed to decide that where a servant was travelling, having paid his own fare, and was injured by the defendants' negligence, the master could not recover damages for loss of service, inasmuch as the action lay in contract and the master was a stranger to the contract. But this decision must, in view of recent criticism, be regarded as very doubtful, particularly when it is remembered what the effect of the Judicature Acts has been upon all arguments foimded upon the form of pleadings (/). It is commented on in Tai/lor v. Manchester, Sheffield and Lincolnshire Rail. Co. (k) and Jleiu v. Great Eastern Rail. Co. {I). In the latter case the plaintiff sued for the value of her footman's livery, which had been destroyed by the negligence of the defendants' servants while in their custody for the purpose of safe carriage. The defendants had received the portmanteau containing the livery from the footman, who was travelling with it, and had taken a ticket as a passenger on their line. The defendants argued (b) Wood, 438. jected : see pt. ii. p. 645. (c) (1606), Yelv. 90. [g) (1851), 11 C. B. N. S. 655. \d) (1808), 1 Camp. 493. (A) (1865), 19 C. B. N. S. 213. [e) The whole subject is discussed in (J) Pollock's Laic of Torts (8th ed.), Ex parte Bidl (1879), 10 Ch. D. 667; 544 — 546; Beven's Negligence in Law and in Midland Insurance Co. v. Smith (2nd ed.), vol. i. p. 211, note 3. (1882), 6 Q. B. D. 651. See Pollock's [k) [1895] 1 Q. B. 134, as explained Law of Torts (8th ed.), p. 64. in Kelly v. Metropolitan Rail. Go., [1895] (/■) [1906] 2 K. B. 648. There was 1 Q. B. 944. also a claim for funeral expenses under (/) [1895] 2 Q. B. 387. Lord Campbell's Act, which was re- 202 Ix'HUTTS OF TTIK PAKTIES AGAINST THIRD PERSONS. thai the foimdatimi of tlio olaim was the contraot of carriapre, and that, the contract being between the footman and the company, the plaintiff could not sue ; but the Court of Appeal held that she had a good claim in tort, to maintain which she only had to show that the property damaged by the defendants' misfeasance was lawfully on the defendants' premises. Tho only answer is that Alton v. Midland Bail. Co. has decided othei-wise ; but this is not so When [that] case is looked into, it appears that the solo point which was decided was on demurrer, which raised the question, whether, the servant having contracted with the railwaj' company to be safely and securely conveyed, the master could take advantage of that contract and sue for breach of it. That case is no authority for the jiroposi- tion that the plaintiff cannot sue in tort irrespective of contract (m). TIk^ judge at the trial seems to have thought that the port- manteau was not lawfully on the defendants' premises, because it was accepted as the servant's personal luggage, whereas it was really the plaintiff's ; and the defendants relied upon Ber/icr v. Grcdt E((>ifern lldil. Co. [n), which decided that a nuister could not maintain an action for the loss of his portmanteau, which was accepted by the defendants as a servant's personal luggage. But the Court of Appeal thought otherwise ; and Kay, L. J., protests against the idea that " when the company make no inquiry as to what is in the portmanteau, but accept it as personal luggage, they should be able to turn round and say, ' The goods were not yours' " ; but it was not necessary to go that length, because the Court held that the fact of the [)roperty being a livery was enough to make it at once the personal luggage of the servant and the property of his mistress. There is no doubt that Becker v. Great En-sfern Rait. Co. (n) will have to be reconsidered. Where a servant had been injured by a collision caused by the negligen(ie of another company than that with which the contract of carriage was made, the master recovered damages for loss of service (o). (m) Per A. L. Smitli, L. J., /. r. ;it (o) BrrriiK/fr v. Great FMytir» Rail. p. 394. Co. (1879), 4 C. P. D. 163. See Anus v. («) (1870), L. R. .") Q. B. 241. Unkm Rail. Co. (1875), 19 Am. Rep. 426. APPENDIX. 203 APPENDIX. The followiug are the chief cases as to actions of seduction : — Action. No Action. BnincU V. AUcoU (1787), 2 T. E. 166 (person seduced of full ajje) ; Edmoudsou V. MaclieU (1787), 2 T. R. 4 ; Fores v. Wilson (1791), Peake, 77 (servant not related to her master) ; Mann v. Barrett (1806), 6 Esp. 32 (plaintiff's daughter lived with her brother, but wont every day to her father's house to do all the household work); S}wi(jht v. Oliveira (1819), 2 8tark. 493 ; Manvell v. Thompson (1826), 2 G. & P. 303 (plaintiff's niece entitled on coming of age to 500/. ; occasionally assisted in the household work) ; Harper v. Lnffki)/ (1827), 7 B. & C. 387 (married woman living with her father and acting as servant) ; Maunder v. Venn (1829), M. & M. 323 (no proof of acts of service, but father had right to daughter's services. Littledale, J.) ; HoUowayx. Ahell (1836), 7 C. & P. 528 (A. occupied two farms seven miles apart ; A. resided at one, and his son and daughter at another ; the daughter acted as mistress at the latt(-'r farmhouse ; the daughter se- duced ; action lay. Littledale, J.) ; Griffiths V. Teet(jen (1854), 15 C. B. 344 (A. agreed with B. that B.'s daughter, who was then residing with him, should enter A.'s service to assist him in business during the temporary absence of A.'s wife ; action lay at suit of B. for seduction by A. during that period) ; Itlst v. Faux (1863), 32 L. J. U. B. 386 (plaintili's daughter after day's work as servant in husbandry performed services for her father) ; 0(jden v. Lancashire (1866), 15 W. E. 158 (plaintiff's daughter lived with her father ; worked during day at de- fendant's mill ; did washing and other domestic duties for plaintiff) ; Haterthwaite v. Dnerst (1785), 5 East, 47, n. ; Reddie v. Scoolt (1795), Peake, 316 (plaintiff permitted a man whom he knew to be married to visit his daughter as suitor) ; Dean v. Feel (1804), 5 East, 45 (plaintiff's daughter in service of another at time of seduction, and did not intend to return to plaintiff's house) ; Carr V. Clarke (1818), 2 Chit. 261 (no action when daughter not in father's service, but he receives part of her wages); Harris v. Butler (1837), 2 M. & W. 539 (plaintiff's daughter apprenticed to defendant's wife) ; Blai/mire v. Hcdey (1840), 6 M. & W. 55 (action does not lie where daughter in domestic service of another, though she was there with the intention on her and her father's part to retiu-n, on e|uitting her present situation, to her father's house if she got no other situation) ; Grinnell v. Wells (1844), 7 M. & G. 1033 (some proof of loss of service necessary) ; Eager v. Grim- wood (1847), 1 Ex. 61 (some proof of loss of services necessary) ; iJavies v. Williams (1847), 10 Q. B. 725 (plain- tiff's daughter when seduced not in plaintiff's service) ; Thompson v. Boss (1858), 5 H. &N. 16 (no action where daughter does not reside in house, though, with permission of her master, she has been in the habit of assisting her mother in her business) ; llanlei/ V. Field (1859), 7 C. B. N. S. 96 (plaintiff's daughter had a house of her own) ; Hedges v. Tayr/ (1872), L. E. 7 Ex. 2*83; Whitbourne v. Williams, [1901] 2 K. B. 722. 204 mOUT^ OF TIIK PARTIES AGAIN>^T TIUIM* IM:KS0X?!. Action. Tern/ v. Hutchinson, Tj. E. (1S(5S). 3 Q. iV. 599 (plaintiff's daughter haviug loft her situatiou was soducod on her way home to her father's house). Lorn, V. Keiqhil,!! (ISTT), H Ir. C. L.' 2'21. (Plaintitrs daughter, twenty-four years of age, seducedm the house, and while in the service of, plaintitY her mother. In accord- ance with a previous arrangement, 8he left the day afterwards for America; finding herself pregnant, she went to her sister's house, and resided there until after her confine- ment ; subsequently she returned to the plaintiff's house. Evidence to go to jury of loss of service.) 205 CHAPTER XX. DISSOLUTION OF THE CONTRACT OF HIKING AND SFRVICE. {By Death.) Contracts of hiring and service and apprenticeship are terminated by the death of the master or the servant or apprentice. The general rule is that executors or administrators are Hable upon the contracts of the deceased, though they are not named {a). It is, however, an implied condition iu contracts of service, requhing personal skill or taste, that they are terminated by death, though, of course, the servant's executors are entitled to the wages due at the time of the servant's death. Where personal considerations are the foundation of the contract, as in cases of principal and agent, and master and servant, the death of either of the parties puts an end to the relation ; and, in respect of service after death, the contract is dissolved, unless there be a stipulation, express or implied, to the contrary {b). " All contracts for personal service," said Pollock, 0. B., in Hall V. WrigJd {c) — and the dictum is quoted with approval by Kelly, C. B., in Robinson v. Davison [d) — " which can be performed only during the lifetime of the party contracting, are subject to the implied condition that he shall be alive to perform them." Hence a contract of apprenticeship (p) has been held to be determined by the death of one of the parties. [a] Parke, B., in Snbotii v. Kirlcman Co. (1867), L. R. 2 Ex. 311. Marriag-e (1836), 1 M. & W. 423 ; Willes, J., in ^oes not operate as a dissolution of cou- Fnrrow v. Wihun. See next note. tract. Chittv's General Practice, vol. i. (h) Farrow v. TFUsoh (1869). L. R. yyy • Bnvn's' Justice, 222. i C. P. 744, 746. (Farm bailiiT en- (c) (18.59), E. B. & E. 746, 793. gaged at_ weekly wages ; service to ,^ ^^^-^^ j^ ^ ^ ^^ .,g9 .,^^_ g^^ be determinable by_ SIX months notice, Blackburn, J., in Ta<,lor v. Caldwell or payment of six months wages. ,^ 3 B. & S. 826, 833. Administratrix not bound to continue ^ " the bailiff iu her employment, or to pay (e) Petty. Win ffjicld {1692), Garth. 231 ; him six mouths' wa«-es after the master's P. v. Peell (169S), 1 Salk. 66 ; Baxter v. death.) Barker v. Parker (1786), 1 T. R. Bar fi'-ld {17 il). 2 Stra. 1266 ; P. v, Uhirfi 287. But see Stubbs v. Holyivell Rail. (1774), Bui-. S. S. 782. 206 DISSOLUIION OF CONTRACT OF HIKING AND SERVICE. No doubt su(;li ;i contract may be drawn so as to prevent this taking place. In Cooper v. Simiiionds (/'), a lad was bound to a tradesman and " his executors " carrying on the same business in the same town. Notwithstanding- the death of the master the apprentice was bound to serve his widow, the executrix, while she cou tinned tlie same business. But the executors of the master remain liable to the extent of their assets upon the covenant to maintain (r/). The chief difficulty is with respect to the servants of partners. The death of a partner dissolves a partnership in the absence of an agreement to the contrary {h) ; and if the rule be, as is sometimes alleo-ed, that the dissolution of partnership terminates all contracts of hiring and service (/), the death of one partner would bring this about. This view is supported by Taskcr v. Shepherd [li). The plaintiff was employed as agent by a firm composed of two partners. The Court held that the death of one of them terminated the relation of agency. But this view was questioned by Martin, B., in Tadrr v. Shepherd and in IIohsoH v. Coir/e// (/). There may seem some reasons against it where a change in the partnership involves no change in the duties of the servant ; and it may be urged that the decision in Tanker v. Shepherd turned on the construction of the particular contract before the Coui't, which was made with reference to partnership business, and contained a proviso that the servant should be paid according to the profits (/) (1862), 7 H. & N. 707. (A., B. and C, partners. D. engaged ((/) IFadsivorth v.Gi/e, Sid. 216. And to serve them as foreman for twelve see the first two cases iu note (e). This years ; C. quitted the business, and D. proposition is recited in the preamble to continued to serve A. and B. D. sued 32 Geo. III. c. 57. See Austin (m A., B. and C. on the original agreement : Apprenticrs, pp. 40 — 42. " Coltnian, J., ruled " C.'s going out of (A) Partnership Act, 1890 (o3 & o4 the concern did not ;;«• .vy^ut an end to Vict c 39) s 33 ^^"^ agreement. D. entitled to sue A., "■■''■" B. and C") See also Hoey v. McEwan (i) Wood, 308. (1867), 5 Maciph. 814. (Agreement {k) (18G1), 6 H. & N. .575. See also between a firm and their clerk; the Rawlinnon v. J/o.n.v (18G1), 30 L. J. Ch.^ clerk engaged for five years, at a salary 797. (Dissolution of partnership of ,jf ■,>,Q[)l_ a year, and percentage of solicitors amounts to a discharge of profits ; the firm dissolved by death of client.) one of the partners : held, inter alia, that (/) (1858), 27 L. J. Ex. 205, 208. the contract of service, being personal, (Plaintiff agreed with defendants, C. was determined.) See M. v. St. Martins and M., to serve for seven years; L. (1835), 2 A. & E. 655, and the cases came into the firm in place of M. ; in which bonds are given by sureties plaintiff signed a memorandum, \\hvA\ to partners for good conduct of clerks stated "that, in consideration that a and servants. The surety is discharged new agreement is entered into with the when a change by death (jr otherwise new firm, he was willing to cancel the occurs in the partnership : Chancdhr of old ao-reem^-nt " : held, evidence of the Universilij of Cambridf/c v. Baldtvin exoneration, even if dissolution of part- (1839), 5 M. & W. 581 ; Simsun v. Cooke nership was a breach of contract.) (1824), 1 Bing. 452; Addison on Con- Jhbhin V. Foster- (1844), 1 C. & K. 323. tracts (lOth ed.), p. 1009. BY DEATil OP' PARTNER. 207 of the firm. But, on principle, it seems clear that a contract in which A. contracted to serve B. and C. would not be binding between A. and C. only. This view was taken by the majority of the Court of Appeal in Brace v. Caldcr [m), where it was held that a dissolution of partnership by the retirement of two of the partners operated as a wrongful dismissal of the plaintiff. But in PliillipH V. Alhamhra Fa! nee Co. (n), a contract of employment for music-hall performances was enforced by the performers against two out of the three original contracting partners, one having died ; on the ground that the contract had not been made with special reference to the personnel of the partners, or to the character of the partnership business as then carried on. Tanker v. Slieplierd is there explained on this latter ground. There are few authorities with regard to the question whether, if a master " assumes partners " they will have the rights and liabilities of masters in relation to servants. The law upon the subject is thus stated in Fraser's Law of Mader and Servant (o) : — He (a partner) cannot assume partners who will have the right of masters over domestic servants, governesses, or perhaps over clerks. It is part of such agreements that the servant shall do the work of the master who nires him, and of him alone. With regard, however, to artisans, it has been found that they cannot consider themselves free, although their master assume a partner along with himself, who will have the rights of a master. This is a contingency to be looked for and expected ; and it would often be productive of ruinous consequences, if, on such a common event, the whole servants of a large establishment were freed from their contracts. This was decided in a case where a master, conducting business alone, assumed two partners. But an opinion was expressed that it would have been different if the original master had not remained in the firm (p). It is submitted that in English law the question is whether there has been novation ; if there was no novation, the new partner would not have the rights and liabilities of a master. This view is corroborated by sect. 17 of the Partnership Act, 1890, which provides [sub-s. (1)] that : — A person who is admitted as a partner into an existing firm does not [m) [1895] 2 Q. B. 253. Lopes, L. J., without express languaofe, be construed seems to accept Taskcr v. Shepherd hs as being a contract to serve two of authority for the proposition "that by them." Lord Esher, M. E,.. dissented the death of one of a firm of masters on the grouud that the real (contract the servant is discharged, uulese- the was that the defeudauts would employ contrary is stipulated by the terms ot the plaintiti for the time mentioned, if the contract" ; and goes on to say that theij carried on their business so lony. the facts in Bracev. Ca/der seem Htronger (n) [1901] 1 Q. B. 59. thanthedeath of a partner. Rigby.L.J., (o) Page 123. puts his decision on the groimd that " a (p) Mar/cms v. Smith (1841), 16 F. oontract to serve four employers cannot, 938. 208 DISSOLUTION OF CONTRACT OF HIKING AND SERVICE. thereby become liable to the creditors of the firm for anything done before he became a partner. There seems to be no reason for excluding contracts of service fi-om this section ; its principle has been applied to contracts of work and labour (q). But on proof of the fact that a new partner has allowed debts of tlie old partnership to form with debts subsequently contracted one open running account, any suras paid on tliat account by the now partners! lip will be appropriated to the old debts and the new partner still remain liable for the balance {r). The performance of service for and the acceptance of service by the new partner woidd, of course, be itself evidence of novation. I)issoh(fi()ii of Coiifntvf hi/ Consent. The contract may, of course, be dissolved by consent of both parties, express or implied (.s). No particular words are required, and consent may be implied from conduct. At common law a contract imder seal, such as indentures of apiirentice.ship, might be dissolved by consent, unless when an interest in real property has passed. To discharge indentures s(nnething must be done equiva- lent to cancelling (/). There are many cases as to what constitutes cancellation {ii). If the indentm-es are cancelled by consent of the apprentice, it must be proved that the dissolution of the contract was for his benefit (rr). In a Scotch case, decided in 1815, an apprentice was impressed as a seaman ; he remained in the navy sixteen years, and he retm-ned home having reached the rank of lieutenant. His master made a claim for breach of contract, but the Courts thought that the fact that he had not made the claim for a number of years amounted to a tacit permission to the apprentice to consider himself released (//). A master who had made no effort to reclaim an apprentice for years, would no doubt be regarded as having tacitly consented to his release. (//) Beak V. Monls (1847), 10 Q. B. 612; liix v. St. Mari/ Kallendar (1748), 97(3. 1 Bur. S. C. 274. See Austin on {)■) Bmh V. (Jaddick (1857), 2 H. & N. Apprentices, 43. 326. SeeLindleyon /'«»-iwA7(i^(lithed.), («) Rex v . Hurherton (1786), 1 T. R. pp. 214— 217. 139; Rex v. Warden (1828), 2 M. Ac R. (s) Rex V. Weddington (1774), Bur. S. C. 24. 766; Rexy. Harberton (1786), 1 T. R. (x) Rex v. Great fFigston (1824), 3 139; on other hand, Rex v. Warden B. & C. 484 ; Rex \. MourdHorrel {\^\b), (1828), 2 M. & R. 24 ; and Rex v. 3 M. & S. 497. Skeffinylon (1820), 3 B. Ac A. 362. (y) Eraser's Mauler and Servant {(} Rex V. Lanyham (1782), 1 Bott.' (3rd ed.), p. 315. BANKRUPTCY. 209 Contracts of service are not avoided lr>y enlistment in tlio militia, save in certain sjiecial circumstances (;:). Bankniptcy. J3ankruptcy docs not operate as a dissolution of a contract of hiring- and service (^^). As to the contract of apprenticeship, the Bankruptcy Act of 1S83, s. 41, provides as follows: — (1) Where at the time of the presentation of the bankruptcy i^etition any person is apprenticed or is an articled clerk to the bankrupt, the adjxidication of bankruptcy shall, if either the bankrupt or apprentice or clerk gives notice in writing to the trustee to that effect, be a complete discharge of the inden- ture of apprenticeship or articles of agi-eement ; and if any money has been paid by or on behalf of the apprentice or clerk to the bankrupt as a fee, the trustee may, on the application of the apprentice or clerk, or of some person on his behalf, pay such sum as the trustee, subject to an appeal to the Court, thinks reasonable, out of the bankrupt's property, to or for the use of the apprentice or clerk, regard being had to the amount paid by him or on his behalf, and to the time during which he served with the bankrupt under the indenture or articles before the commencement of the bankruptcy, and to the other circiimstances of the case. (2) "When it appears expedient to a trustee, he may, on the application of any apprentice or articled clerk to the bankrupt, or any person acting on behalf of such apjjrentice or articled clerk, instead of acting under the pre- ceding provisions of this section, transfer the indentures of apprenticeship or articles of agreement to some other person. As to the effect of compulsory and voluntary winding-up upon contracts of service, see p. 128, supra. {£) Militia Act, 187o (38 & 39 Vict. the year last before the commissiou up c. (39), s. 78. to the time of rescinding, nothing being («) TlioiiMs V. WiUhniis (1834), 1 due and proveable at the date of issuing A. k R. 68). (Clerk hired by the year the commission.) It is almost needless continues in bankrupt's office after bank- to say that the assignees of the bauk- rujitcy. In the middle of year by mutual rupt cannot require the fulfilment of the consent contract is rescinded ; clerk not contract of service by a servant : per barred by certificate from recovering all Abinger, C. B., in Gibsun v. Caniithers the wages due from the expiration of (1841), 8 M. & W. 321, 343. M, 210 DISSOLUTION OF CONTRACT OF HIRING AND SERVICE. A trustee in bankruptcy has no riglit to tlie proceeds of tile personal and daily labour of a bankrupt. The old law — aud it is still in force — was that wages earned by a banknqit before his discharge did not pass to his assignees, at all events so far as the wages were necessary to liis maintenance (/;). WiIIi((in.s V. C/i((nihc)\s (c) decided tliat tlio assignee of an insolvent debtor could not recover in respect of work and labour performed by the debtor if the remuneration were necessary for his main- tenance. But if the claim were not for " mere personal labour " — if, as in E//iof v. (Vai/toii {(/}, the claim were for medical attendance and medicines, or for services rendered by a furniture broker, who employed men and vans in the course of the services for which he sued (r) — a diflferent rule prevailed. No doubt, too, if a person accumulated a large sum, even by personal labour, the assignees might claim it (./"). In like manner the trustee could intervene and claim ([/) a sum which was not the remuneration for work and labour, but damages for broacli of contract ; as in WaaliiKj V. OIij)Ii<(nf {//), where the trustee was entitled to claim a sum awarded by the Court of Chancery to the bankrupt, after bankruptcy and before discharge, in lieu of proper notice of dismissal. " If salary or wages, or commission under a contract of service," says Wilde, C. J., in Becklidin v. Drdkc {1} — in which the question was whether a sum in the nature of a penalty for bread i of a contract to employ passed to the assignees of a servant — " are due at the time of the bankruptcy, the right to recover such wages, salary, or commission would pass to the assignees as part of the personal estate, without regard to the consideration of whether the contractor's services had had relation to the personal skill or labour (b) Chippendall v. Tomltmon (1785), 4 {e) Crofton v. Pooh (1830), 1 B. & Ad. Doug. 318. (In this case the assignees 508. (lid not interfere.) Silk v. Osborn (llQi), (/) Ilrsse v. Stevenson (1803), 3 B. & 1 Esp. 139; Kv parte Walters (1842), P. 578. 2 M. D. & D. 635 ; Ex parte Grimstcad (r/) See the remarks on this ease in (1844), De G. 72; In re Grai/don, [1896] Bailey v. T/iurston : see note (b). 1 Q. B. 417; fn re liobrrh, [1900] 1 (A) (1875), 1 Q. B. D. 145. See also Q. B. 122; Mercer v. Vans Culuin, re- Beckham v. brake (1847), 2 H. L. C. ported in note to preceding case, z A irf., 579; right of action for broach of a gree- at p. 130; Bailry v. Thurston, [1903] ment to hire for seven years which 1 K. B., per Collins, M. R, 137, 142. accrued before bankruptcy passed to / \ /iDiT\ in /-I T> 00-7 assignees; and on the other hand, Ux {e) (1847), 10 Q. B. 337. ^^^.^^ JMvhurst (1871), L. R. 7 Ch. 185, () ; nor to the fluctuating income of a professional man acquu'ed by his skill and knowledge ((/) ; nor to the wages of a workman (/.•) (1880), 17 Ch. D. 169; 17 Ch. (w) See Bankruptcy Rules, 1886, r. 79, D. 768. See remarks on this case as to notice by the trustee; aud r. 82, in Ba'ilni v. Thurnton, uhl supra ; also as to power to review the order. Wadling v. Oliphant (187o}, 1 Q. B. D. (o) Ex parte IVicks, lie Wicks (1881), 145. 17 Ch. D. 70. ,,, T) -7 rri i i> 11 T^j (p) J^x parte TFebber, Re Webber (1887), (1) Bailey V. T/iurstoit j\ iii [1903] 1 K. B. 137. ^ (q) Ex parte Bemoell, Re Huttor, {\88\), In,) Wood, 307. 14 Q. B. D. 301. 212 DISSOLUTION OF CONTRACT OF HIRINO AND SERVICF. employed in a colliery (r). But it does apply to a salary dependent on the annual vote of Parliament or a colonial legislature (.s) ; to a commercial traveller's salary paid weekly under an engag-ement terminaWe at a week's notice {f) ; and to an actor's fixed salary payable under a contract {ii). The following- are tlie modes in which n contract of service may be lawfully terminated : — (a) By consent. (b) By expiration of the agreed period of service. (c) By notice, including — (i) payment of wages in lieu of notice, (ii) expiration of the time for which notice is given. (d) By dismissal or departure without notice for good cause. (e) By impossibility of service. (f) By death of one of the parties. (>•) Ee Jones, E.V parte Z/oi/d, [IS91'] 2 [t) Re Brindlei/, E.r parte BriucUci/ Q. B. 231. ■ (1887). 4 Mor. 104. (.s) Ex parte I^Hff^his, Re llnqqina (ti) Ex parte SJih/e, fie Shi»e, [1S92] (1882), 21 Ch. D. 85.' " 1 Q. B. 522. 213 CHAPTER XXI. ASSIGNMENT OF PKKSONAL CONTRACTS. Contracts of hiring and service cannot be transferred or assigned without the consent of the parties thereto (<;<). Master and servant both contract with reg-ard to the personal qnahties of each other. The relation is one of personal confidence, and the one cannot compel the other to accept a thhd person in substitution. If A., for example, sells his business to B., he cannot turn over 1)., his servant, to the purchaser. Neither will a servant be permitted to say to his master, " I decline to work mytfelf, but I have procured a competent substitute," or " I have let out a part of the work." In one case the plaintiff was employed as master of a ship ; he engaged A. to act for him. In an action which the former brought for wages, it was held that he could not recover, as the contract contemplated personal service {(j). In like manner the contract of apprenticeship is pnmd facie not assignable (c). As it is expressed in Coventry v. Woodhall, " The matter of putting an apprentice is a matter of great trust, for his diet, for his health, for his safety ; and therefore I will, by choice, commit him to one and not to another " (r/). All the parties to the original contract nuist join in an assignment to make it effec- tive {e). It must be properly stamped, and operates as an agree- ment between the master and the assignee that the apprentice shall, («) Leake's Law of Contract, 5th ed. v. Tower Publishing Co., [1897] 1 Ch. 21, 82o ; Pollock on Cottracts^ p. 472. where the principle was applied to a [b) Campbell \. Price (\^?)\), 9 S. 2G1 ; limited company; llobsuii v. Sharpe Schmaliiiy v. Tomlinson (1815), 6 Taunt. (1831), 2 B, & A. 302. As to servant 147. (A. employed by defendant to agi-eeing to serve master's assignee, carry goods to a foreign market: A. £«««.¥// v. /««*■ (1857), 26 L. J. Ch. 663. delegated the performance to plaintiff, , \ v ^ u ^ 7j /i-.t\ .i o.. u Ti iv. 1 -i-i i. 1 1 J (^) Baxter v. Burfield (1/47), 2 Str. who did the work without knowledcje , ^).X yr «? 7 .i o\. i.w.- c f .1 1*14. 1 • i-ii- n i 1266; Homey. Blake, 2 Str. 126/. See or the defendant; plaintin could not . .• , ^. ' „, '. ^ n . £ Austin on Apprentices, (2. recover compensation tor services from '^-^ defendant.) See also Steiens v. Bcnning i'^) Hob. 134 A. (1854), 1 K. & J. 168 ; Hole v. Bradburg (e) Baxter v. Burjirld (see note {c)). (1879), 12 Ch. D. 886 (agreements Strictly this is no assignment, but a between author and publisher) ; Grijfith new contract. 214 ASSIGNMENT OF PERSONAL C(»NTKACTS. with his own consent, jjorform his contract with the former by doing service to the latter (/). Such a contract, however, may he assignable if the master's assignees or executors are named {V) when third persons have reason to believe from his master's conduct that he has authority to bind his master. When a master entrusts to a servant the performance of cijrtaiu duties, there is an implied authority or mandate to enter into contracts which are necessary or usual for the performance of such duties, and persons dealing- with servants will not be affected by restrictions which are placed upon the servants' authority unless such restrictions are known to them {a). The relation of master and servant invests tlie latter -with no authority to bind the former (/>), but the servant may have from the particular duties assigned to him the right to bind his master in regard to contracts. Wlien, for instance, a foreman employed by the owner of a sawmill agreed to supply a quantity of fir- staves, the latter, it was held, was bound by the contract though he had given his foreman no special authority to enter into it (r) . It is often left to a jury to say whether a servant had authority to enter into a particular contract, or whether his employer held him out as having such authority (f/). Thus, in Laiigan v. T/ic [d] For early authorities ou tins .siil)- (h) Leake'.s Law of Contracts (.5th ed.), ject,' see Fitzherbert N. B. 120, G. ; 312. Doctor and Student,!!, chap, xlii., and , . Richard..on v. Cartwright (1844), Noys Maxims, y. .,8 One can see by ^ ^^ ^ ^ ^.-^^ Compare IkL v. I\icksuH V. Brohan, 10 Mod. 110, now o- . /loonN a a t t> .fo i ..,,,' . ,-,n a Simmms (1880), 44 J. r. 284. uncertain the law was in ulO. bee ^ ' ^(Ws V. i2o,'j« (1866), L. R. 1 Q. B. 534 ; {d) Spooner v. Browning (1897), 77 Watteauv.Fenwick% Co.{l%'yi),Q,ll..T. L. T. (N. S.) 685; (C. A.) 78 L. T. (N. S.)831. (N. S.) 98. 21U 81:KVANT's AUTIIoIMI V as to CO^'TKACTS. Great Wrsfeni Rail. Co. {c), passengers injured in ii collision on ilefeuJtiuts' lino were carried into plaintilf s inn. The sub-inspcu'tor of railway police for the district, who was for the time being- the superior of all the station-masters and servants of the company, was ou the spot, and he ordered brandy to be given to one of the injured persons. In reply to a question put by the plaintiff as to who would ])ay for the maintenance of the injured persons, he said, " Don't trouble yourself about that ; we'll see that is all ri<;ht." The plaintiff brought an action against the defendants for board, lodging, and necessaries sui)plied to the injured pas- sengers. It was held, allirniiug the view of the (iueen's Btnicli, tliat there was evidence to go to the jury in favour of the plaintiff. The sub-inspector was the chief person there. It was the interest of the company tluit the mischief resulting' fi-om the accident shoukl be the .smallest possible, if the company were liable, and the company might be. Then is th(>re a necessity, undtn- circumstances such as these, for what may be called instantaneous action ? Surely it is reasonable to say that the person who is chief in office where the accident takes place should have authority to do those things which must be done at once, and which are presumably for the benefit of the company (ee). It is not clear that a servant is, except in certain special cases, " an agent of necessity." At all events, he has no authority to employ anyone if he can communicate with his employer (,/). On the same })rinciplo of what is sometimes called " necessary authority," the servant of a horse-dealer or li\ery stable ke(>per was entitled to bind Ids master by giving a warranty, although he had express orders not to give it{(j). On the other hand, if the servant of a person who does not carry on the business of horse dealing is entrusted to sell a horse on one occasion, and gives a warranty without authority from his master, it will not be binding (//). There is no im[)lied authority to do what is imusual ; and hence when an agent, appointed by a mining company to manage a mine, borrowed money of the plaintiff's, who were bankers, it was held he (e) (1874), 30 L. T. (N. S.) 173. admissible. Sec JS/ildri/ v. Batcn (1885), (ee) Per Bramwell, B., l. r. p. 176. 52 L. T. (N. S.) 621. (/) Gwdlimu V. T>rist, [1895] 2 Q. B. {h) Brndij v. Todd (1861), 9 C. B. N. S. 84. See p. 24. supra. 592 ; Hchjcar v. Hawke (1803), 5 Esp. (q) Howard V. *Aw«rrf (1866), L. R. 71; Milhr v. Lauton (1864), 15 C. B. 2 6. P. 148. Iti this ea^e .■videnec of a N. S. 834 ; Brookx v. Uasmll (1883), 4!) jreneral ])raotioe anions: liorso dealers L. T. (N. S.) 569. See Payn)- v. Lccou- uot to warrant was held to be not >e/rf (lKb2), 51 L. J. Q. B. 642. servant's AUTHOlilTY AS TO COiSTKACTS. 217 had no authority to biud tlie company (/). So owners of a shij) are Ijouiid by contracts of a master with resjtect to tin; usual employment of the ship (A-). JJut he cannot bind the owners to a contract at variance with the usual employment of the sliip, rjj., to carry goods for freight payable to other than the owner (/). The relation of master and coachman does not clothe tlie latter with ostensible authority to pledge his master's credit for forage supplied for his horses {m). The distinction is often expressed by saying that when a man appoints a general agent, he is bound by all his acts; but that, when he appoints a special agent, he is bound only to the extent of the authority which he has in fact given [n). But this distinction does not bring out the fact that, when a person appears to be a general agent, the master is bound by his acts and is estop})ed from denying his authority ; that the important point is not what the agent's powers are, but what they seem to be ; and that, notwithstanding an arrangement to the contrary, it will be assumed that he has usual authority (o). If, however, a person dealing with a servant knows that he has a special or limited authority, he is bound to see that the authority is observed. A master, whose servant has committed frauds, may, by his conduct, be estopped from denying the servant's authority to do the acts out of which the frauds arise, and have to bear the loss under the rule of law that where one of two innocent persons must suffer loss through the acts of a third person, he who has enabled the third person to occasion the loss, must sustain it [p). A servant may have authority from the course of previous dealings to bind his master ; if they would naturally lead trades- men and other persons to believe that a servant is authorised to pledge his master's credit, the latter will be liable. A private arrangement between them forbidding buying on credit, or attach- ing conditions to doing so, will be no defence. In the case of a groom, who took his master's horses to a smith and farrier to be shod and to be doctored. Lord Kenyon ruled that it was no defence to an action against the master that he had made a special arrange- ment with his groom by which for a year the groom was to keep (i) Hawtayne v. BoKvi/e (1841), 7 M. & (//) Per Kenyon, C. J.,in i'list Imha Cu. W. 595. V. ITenslcy (1794), 1 Esp. 112 ; Ashurst, (^•) Myirs V. Willis (1855), 17 C. B. J., in Fmn v. Harn.son (1790), 3 T. R. 77; 18 C. B. 886; Smidemann v. Scurr 760; Story on Affcnci/, a. 126. (1866), L. R. 2 Q. B. 86. (o) Summers v. Soiomoii (1857), 7 E. & [l] Reynolds \. Gex (1865), 34 L. J. B. 879 ; Watteauw Fenwick S; Co. {\S'd2), Q. B. 251. 67L. T. (N. S.) 831. {m) Wng}d v. Glyn, [1902] 1 K. B. ( p) Farqnharson Bros, ij- Co. v. King cj- 745. Co'., [1901] 2 K. B. 697. 218 SEKVANT's AU'l'lIOKlTY AS TO C()NTKACT«. liis master's Horses properly shod and to fiirnisli them with medicine {q) ; a decision which, if there were no special facts, is to be regarded as overruled by WrifjJit v. Glyn (r). On the other hand, if a servant chooses to go to a tradesman with whom tliere have been no previous dealings — if, for example, as was the case in Hiscox V. Grecrnrood (.v), a coachman sends, without his master's knowledge, a chaise to a coachmakor who had never been before employed — the master incurs no liability. A common example of this principle occurs when a servant is allowed to make repeatedly purchases on credit on behalf of his master. Tradesmen dealing with him are entitled to assume that he has in these circumstances authority to do that which he usually does with the knowledge or permission of his master, in the absence of notice that his authority is limited, or has been withdrawn. Accordingly, if a servant who usually buys for his master on credit, appropriates to his own use things whicli liave been so bought, the master is liable. On the otlier liand, if the servant is always in cash boforeliand to pay for goods, the master is not liable if the servant misappropriates the money or the goods (/). "Nothing," said Lord Kenyon, in StuhhiiKj V. Hci))tz{i(), "could bo clearer than that where a man gives his servant money to pay for commodities as he buys them, if the servant pockets the money, the master will not be liable to pay it over again." To rebut the presumption of authority raised by a previous course of dealings, it must be shown that notice was given of the intention to make a change. The cases seem to show that notice to a servant of a tradesman will not suffice. In (rrdthnid v. Freeman [v) it appeared that the defendant was in the habit of dealing with the plaintiff, a publican, on credit. lie paid his bill and then gave notice to the plaintiff's servant that he would run u]) no more bills, but only pay for beer as it came. Lord Eldon ruled that the defendant must show tliat tlie j)laintiff had notice of this change in the maTiner of dealing, and that notice to the servant alone would not be sufficient. Even if there have been no previous dealings, the master's conduct may amount to a representation that tlie servant has authority to contract in his name. Thus, when a coachman with whom his master had a private arrangement that he was to provide [q) Ptrciotis v. Abel (1795), 1 Esp. 350. {() lUsbi/ v. Scarlett (1803), 5 Esp. 76. ()•) [1902] 1 K. B. 745. {») (1791), 1 Pcake, N. P. 66. (6) (1802), 1 Esp. 174. (y) (1799;, 3 Esp. 85. SERVAN'l S AUTJIOKI'l'V AS TO C(JN'1'KACT«. 211) horses, went to a stable kee])er in his master's liv(iry and ordered horses, the master was liahh3. Littledahi, J., in directing the jury, said : — If lio (tho servant) made the contract in his own name, and represented to the yilamtitf the agreement between himself and the master, of course under such circumstances tho plaintiff cannot recover. 15ut il' hi' madi; no such representation of any agreement between himsell' and liis muster, i think that, by tho master's sending him forth into tlu; world wearing his livery, to hire horses which he (the master) afterwards uses, knowing (^f whom they were hired, and yet not sending to ascertain if his credit had been ])ledgcd for them, an im2)lied authority is given, and the master is bound to pay the hii'C (;>;). A master will render himself liable if he ratifies the acts of his servant. Ratification may take place in many ways. It the servant orders goods in his master's name, and the latter uses them, knowing or having grounds for believing that they have been so ordered, he will be held to have ratified his servant's act. If he ratify a contract concluded by his servant, he will be taken to ratify it altogether. Thus if he receive the price of a horse sold by his servant, he will be bound by a warranty which the servant may have given in selling it (y). It is often a difficult question, especially when contracts are made orally, to determine whether a master or a servant has been, in fact, trusted. If the servant did not act as his master's agent — if he either expressly or by implication contracted on his own behalf — the master is not liable (s). Has a servant power to pledge his master's credit after he quits his employment ? This is a mixed question of law and fact, and depends upon whether his master, after the expiration of the em- ployment, in any way holds the servant out to the world as his agent. With reference to a servant, who had been in the habit of drawing bills of exchange in his master's name, and who was dis- charged, Holt, C. J., said, " If he draw a bill in so little time after that the world cannot take notice of his being out of service, the bill, in these cases, shall bind the master "(r/). In a Nisi Prius {x) Himellv. Sampayo (lS2i), I C. & p. "Although the law is clear that the 254. See Wright v. Glyn, uote [m). master who has onoe held out a servant (?/) Jlristuivf V. WhUmorc (IStil), 4 as having' authority to contract uii credit L. T. (N. S.) 622. must withdraw that authority by notice, (s) Williamson v. Barton (1862), 7 not to the servant, but to the tradesman, H. & N. 899. and that it is not enough to do so merely {a) Anon. \. Harrison (1699), 12 Mod. by notice to the servant; yet there is 346. In S/avrl// v. Vziclli (ISdOi, 2 much UKire than that in this case, and F. & F. 30, Erie, C. J., ruled thus: there may be nutice by other means than 220 servant's Airi'iroKirv as to contracts. ease (/.'), I'oUock, C. B., ruled that a gentleman was liable for corn ordered in liis name by a \i\ovy stable keeper, 11., who ]iad been his coaehiuan, who used to order corn, &c. of the plaintiff, and who continued to wear his livery. The defendant did not give notice to the plaintiff that H. was no longer in his service. It seems that an account was sent to the defendant ; but he did not then give any notice to the plaintiff, who continued to supply corn on ll.'s orders. express or actuivl notice. And here you have the fact that no accounts were sent in, even to the servant (and none to tlio master), foi' four years before the ser- vant's death ; and no accounts sent in Tintil after his death, and the pLtiiitift's removal." {d) Aste V. Monlmjuc (185S), 1 F. i: F. 2G4. APPENDIX. Anthoritij of Scruuiit an to Cvntracts AUTnORITY. Nkks,>uv. lirohan (171:^), 10 Mod. 109. Master sent a clork who had tho general management of his cash concerns with a note to a banker to receive money or bank bills, and the servant got another peison to give him for the note a draft upon the banker. The banker failed before the draft was presented : the master liable on the ground that a servant, by transacting affaii's for his master thei'eby derives a general authority and credit from him. ILtzurd V. Treiidiuell (ll'I'I), 1 Str. 506. Master sent waterman to plaintiff to buy iron on credit, and paid for it afterwards ; sent the same waterman a second time with money ; the waterman received the goods, but did not pay the money. Ildyear v. ILituke (1803), 5 Esp. 71. Person not a horse-dealer sent his servant to 'ratter saWs with horse for sale, with instructions to warrant sound; servant warranted it free from vice ; " servant entrusted to do all that he can to effectuate the sale." EUenborough, C. J. See, however, Brady v. Todd, p. 21G, n. (e), supra, and Woodin v. Burford (1834), 2 Or. & M. 391. liarrttt v. Deir,- (1823), Mood, it Malk. 200. Payment to a person in No AUTHOKITY. Stiilihiiiij V. Ili'intz (1791), Peake's N. P. ()6. Master gave successive servants money to j3ay the ])ills once a week ; one servant did not paj- the bills but bought meat on credit for herself. Master not liable. rearer v. Roiiera (INOO), 3 Esp. 214. Plaintiff' sued for })rice of beer sup- plied to defendant's family. Defen- dant dealt with plaintiff for porter used hy his family, and was in the habit of paying ready money. liiscox V. Grecinvood {1^02), 4 Esp. 174. /S<'«p. 218. Maunder v. Conyers {l^\l), 2 Stark. 281. A master not responsible for bquors ordered by his butler in the name of his master without authority, unless he has been in the habit of paying for goods ordered by the butler. EUenborough, C. J. Waters v. lirot/dcti (1827), 1 Y. & J. 457. Cheque given by B. to his bailiff' to give to C., in whose favour it was drawn ; no authority in bailiff' to discount the choc[ue with A. Sanderson v. Bell (1834), 2 Cr. & M. 304. Hemble, payment to an apprentice in master's counting- house not in the usual course of business is not a good paj'ment to tlic master. JIunter v. Berkeley (1836), 7 C. & servant's autftdkity as to contracts. 221 AUTIIOKITY. a merchant's counting-house;, who appears to be entrusted witli the conduct of business there, j;ood j)ay- mont to the merchant though it turned out the person was never so emploj'od bj' hiiu. Tenterden, C J. Eiinill V. Snmpayo (1824), 1 C. & P. 254, p. 219. Miller v. Ifamilton (1832), 5 C. & P. 433. Baker delivered bread from week to week, lie was paid many sums by housekeeper and reeei])ted weekly bills for a date after the time for which housekeeper paid him ; defendant liable, as he did not i)rove he had given to housekeeper money to pav. Simth V. Hull Glass Co. (1852), 11 C. B. 897. Defendants liable for goods supplied to them on the orders of manager, ap])ointed to sui^erintend and transact, under the control of the directors, the manufacturing business of the company, '•although no express delegation of authority." So Totterdell v. Farcham Bltie Brick Co. (1866), 35 L. J. C. P. 278; Geake V. Jackson (1867), 36 L. J. C. P. 108. Summers v. Solomon (1857), 7 E. & B. 879. Defendant, who resided near London, had a jeweller's shop at Lewes managed by A., who gave orders at Lewes for articles to be sent to the shop. Plaintiff, who resided in London, sent articles by A.'s orders to Lewes. A. ran away from Lewes, came to London, verbally ordered articles of jewellery, and took them away, telling jdaintiff he was going to take them to Lewes. Plaintiff had no notice of withdrawal of agency. /Md, that there was evidence upon which the jury might find A. to be defendant's general manager. But see 3 H. & N. 794. Smith v. McGaire (1S58), 3 II. & N. 561. Defendant liable on charter- party signed by persoTi whom he hud loft in charge of his business, although that person signed " per pro," and had received special instructions, which ho exceeded. Uuimird V. Sheward (1866), L. E. 2 C. P. 148 ; p. 216. W(dke/r v. Great Western Bi/. Co. (1867), L. E. 2 Ex. 228. Defen- dants liable for services of surgeon employed by their general manager to perforin an operation on a servant injured by iin accident. No AuTnoRiTV. P. 413. A. ordered of B. two suits of livery a year for her coachman. At the request of the coachman B. supplied plain clothes instead of one of tlie suits ; B. could recover only for livery supplied. Acej/v. Fernic (1840), 7 M. & W. 151. Payment to country agent of insurance company after })eriod for payment ; no authority to vary time of payment. Metcalfe v. fAimsden (1844), 1 0. & K. 309. An authority to a soi-vant, a common drover, to sell in market overt ; not general authority to sell elsewhere. Eolfe, B. Cox V. Midland By. Co. (1849), 3 Ex. 268. Defendants not liable for surgical attendance on injured pas- sengers ordered by station-muster. But query. To same effect, Mont- gomery V. North British Bi/. Co. (1878), 5 E. 796. Giuillimn v. Twist, [1895] 2 Q. B. 84. Driver of defendant's omnibus ordered by police to discontinue driving ; driver and conductor tell third person to drive the omnibus to defendant's yard, only a quarter of a mile distant; plaintiff injured by third person's negligent dri\'ing. Held, no authority to employ third person. Spooner v. BraumiiK/ (1897), 77 L. T. (N. S.) 6S5; (C. A.) 78 L. T. (N. S. ) 98. Defendants stockbrokers ; their clerk received orders fnjni phiin- titt", which they carried out, sending him bought notes by the clerk ; plaintiff handed cheques to clerk, one of them jiayableto clerk himself ; nocouununicationsave through clerk. Other orders given by plaintitl' to clerk, who never communicated them to defendants, but forged bought notes and appropriated proceeds of jilaintiff's checjues whicli he thereby obtained. Action bj' plaintiff' against defendants in respect of orders not carried out. Ifeld, no evidence of " holding out" by defendants. Wriejht V. Gli/n, [1902] 1 K. B. 745 (0. A,). Defendant's coachman re- ceived, besides wages, a fixed sum per liorso to pay for forage and shoeing : coachman ordered foi'age on credit from plaintiff', saying lie was defendant's coachman. Plaintiff' 222 servant's authority as to contracts. Authority. Lankan v. Grent WesUrri Ry. Co. (1874); 30 L. T. (N. S.) 173, Ex. Ch., affirming 26 L. T. (N. S.) 577 ; p. 216. Bnr V. Lori(l(rn <& Paris Hotel Co. (1875), L. E. 20 Eq. 412. Secretary of couipany authorised agent to exe- cute contract of sale, both within Statute of Frauds and Oompanies Act, 1867. As to servant's authority to give receipts. Thorol•). Torts. A servant is liable for all torts which he commits, save wliere the tort consists solely in the omission of a duty, arising' out of a contract, to which the servant is not privy. The master may be liable too, his liability, in such cases, being founded, as it is said, on the liability of the servant ; while there are wrongs committed by the servant, e.g., those altogether outside the scope of his duties or merely for his own private ends, for which the master will not be liable (.s) . On the other hand, it would appear that in respect of acts of non-feasance " which, without proof of a contract to do what has been left undone, would not give rise to any cause of action " {t) the servant who is not a party to the contract is not liable, because of the absence of privity between himself and the wronged person (??). This question has been obscured by a strained use of the terms " negligence," "act of omission" and "act of commission." In nearly every case it is immaterial whether an act be described as one of " omission " or " commission " ; it is equally a tort {t). A passage in the judgment of Holt, C. J., in Lane v. Cotton (r) is sometimes [q) Tugman v. Hopkins (1842), 4 M. & {v) (1701), 12 Mod. 472, 488. Holt, G. 389. C. J., dissented from the judgment of [r) Howell v. Batt (1833), 5 B. & Ad. the majority of the Court. But it was 504. of course admitted hy all tlmt an action (.f) Sec Chap. XXIV. on the case would lie against the person [t) Kelii/ V. Mttropolitmi Rail. Co., who actually took the letter: so in [1895] 1 Q. B. 944, per A. L. Smith, Whitfield v. Lord le Despeuccr (1778), L. J., at p. 947. 2 Cowp. 754, 765, where the judgment («) See Coupe Co. v. .U/i>ldicl<, [1891] of the majority in Lnue v. Coltim was 2 Q. B. 413 ; though the assimiptiou of upheld. Mr. Wood thus states tlie rule tlie Court in this case that there was no recognised in America at p. 074 of his cause of action by the bailor agaiust the Law of Master and Sereaiit : " The servant at all seems questiouable : see servant is never liable to third jiersons Jfcars V. L. ^- S. IF.Rly. (18G2), llC. B. for his failure to perform his master's N. S. 850. obligations ; but for his own wrongful M. CI 226 SKRVANTS' LTABTLTTY TO TTTTRD PERSONS. oited as authonty fm- tlio (lotttriiic that a servant's liability for wrongs turns on the distinction between "misfeasance" and "non-feasance." That was an action against the Postraaster- Gcnoral for the loss of a letter ; and it is clear that the " neglect " there spoken of and for which Holt, C.J. , refused to hold the particular postman liable, consisted in the breach of a duty arising out of an implied contract between the sender of the letter and the Postmaster-General ; for Holt, C. J., compares the right of action against a Postmaster for loss of letters with that against a common earner for loss of goods ; which latter was at the date of that case certainly held to " sound in contract " {.c). When a servant sold goods wrongfully or, in other words, was guilty of conversion, he was held liable as a tort-feasor, and he was not excused because he disposed of them for his master's use (//). So, too, a servant was held guilty of conversion of certain goods in the following cu'cumstances : tlio goods of a bankrupt were sent after bankruptcy to the defendant, a clerk in the employment of one Heathcote, and the defendant delivered them to Heathcote. The clerk, it was held, was guilty of conversion, though he acted from unavoidable ignorance, and for his master's benefit (s). On the other hand, mere refusal by a servant to deliver up to the plaintiff goods received from his master, with- nit tii-st getting his master's orders, is no evidence of conversion [a). In an action for libel against a jiorter, who had distributed parcels containing libellous handbills, it was held to be a good or negligent acts he is liable to third aU: HoHuis v. Fiorlrr (1874), L. R. 7 persons injured thereby, either alone or H. L. 757. jointly with his master " Mr. Wharton, on the other hand (s. .'J3()), states that («J J/(;-e.v v. iSu/chai/ (1678), 2 Mod. the servant is not liable where there is 242; Alcxnnder v. Suuthet/ (lii'H i, •') B. negligence, but is so wVien malice exists. & Aid. 247; Leo v. Baij'.s (1856), 18 Story thus states (s. 308) the rule : C. B. 6i)7. In the last ineutioued case, "The agent is also personally liable to .Jervis, C. J., observed: " A> between third i^ersons for his own misfeasances ma^tiT and servant, or perhaps as be- and positive wrongs ; but he is not iti tweea principal and agent, vvhere the general (for there are exceptions) liable seivaiit or anient re(!oives from his to third persons fur his own non-feasance master or his pr ncipal goods, which or iiniissions (jf duty in the course of his belong to a third person, on their being employment." See Dickson v. JienU'i\i demanded of him by such third person. Telegraph Co. (1877), 2 C. P. D. 62 ; 3 he is entitled to say : ' I received them C. P. T). 1 ; Alton v. Midland Rail. Co. from my master or my principal ; and I (1865), 19 C. B. N. S. 213 ; nuA I'lai/ford require a reasonjible time to asceitain V. United Kinydoiii Electric Telegraph (Jo. whether the l)arty makuig the demand (1869), L. R. 4 Q. B. 706. is the real owner;' ana such qualitied {x) Pollock, Law of Torts (8th ed.), refusal would not be evidence of a cou- p. 532 ; i)a/,s). If a master in hnna fiifc assertion of a riplit, wliicli does not in fact exist, order his servants, vjj. to buihl a wall, and they obey innocently, both raastpr and servants are civilly liable in trpspass(c). It has been already stated that a servant who executes unlawful orders will be lia})le. Individual expressions to the contrary in old reports cannot be regarded as law (r/). Can it be maintained as a i:)roposition of law that a servant who knowintjly joins with and assists his master in the commission of a fraud, is not civilly res2)onsiblo for the consequences ? All persons directly concerned in the commission of a fraud are to be treated as principals. No party can be per- mitted to excuse himself on the ground that he acted as the sei-vant of another ; and the reason is plain, for the contract of agency or of service cannot impose any obligation on the agent or servant to commit or assist in comn^itting a fraud {<■). In J//// V. H(iivl-e (/'), it was held that a surveyor required by statute to obey the orders of a highway boaid was liable for trespasses committed in the course of obeying the orders of tlie board. So, too, it is said that if a clerk of works who superintends the erection of buildiugs give directions which result in the darkening of ancient lights, he will be liable {(j) . An injunction may be enforced by attachment for contempt of Court against servants or agents, though not parties to the action, if the}' knowingly aid and abet a defendant, theii" master, in disregarding the order of the Court {h) . It is laid down in an American case (/) that one servant can maintain an action against another for negligence, while they are in the employment of the same master. In Soitf/icofev. Stanlei/ {k), there is a dictum ascribed to Pollock, C. B., to the effect that such an action is not maintainable. The dictum does not appear in tlie ib) Day v. Bream (1837), 2 M. & Rob. (/) (1875), L. R. 10 Ex. 92. 54. As to the iguorauce of a news- (^) Wilson v. Peto (1821), 6 Moor. 43. vendor who disseminates a libel, see Compare Stone v. Cartwright (1795), 6 Emmois v. I'ottle (1885), 16 Q. B. 1). T. R. 411. ^^^\ „ T ncv-^ c I- I i> [h) Scnward \. Patcrsou,\{^'dl'] \ C\x. (c) Reg. V. Jamis (18^/), h C. A: r. .,\ ' > l j 131, per Lord AbiiiKer, C. B., at i). ", ' „ , 132 ^ o . . 1 {i) Osborne W.Morgan {\d,^\),ViQM.ass. {d) story ou Agtncy. 8. 310. 102 ; overrulmg Albro v. Jaqmth (1855), ie) Cidhn V. Thon.jKson'x T,H^tecs{\mi). ' Gray, 99. Mac( '' " 4 Macq. 424, per Westbury, L. C, at {k) (185b), 1 H. & N. 250. See Jfright p. 432 ; R. V. Muttirs (18G5), 34 L. J. v. Roxburgh (1864), 2 M. 748, where the M. C. 54. contrary was decided. Q 2 / 228 SERVANTS MAIULTTY TO THIRD PERSONS. report of the same case in llic " Tjiiw Joiirual" (/) ; but it would appear to be in accordance with the principles of our law. There is no reported English decision in whicli it has been acted upon. Seriroifs Crimhinl Linhilltif for Wrongs. If a person, by means of an innocent agent or servant, commit a crime, it is the employer and not the agent who is accountable {»/). So if a master, knowing a right not to exist, order his workmen to do something in assertion of tliat riglit, and the workmen, hand fide believing in his right, obey liim, they will not be answerable if incidentally they commit a felony {n). But here there is an im- portant distinction to be noted : the act ordered must not be one which the workmen must see they ought to disobey, r.r/. to shoot a man : it must be nxdioii proliihifiDti, not iiiahi}ii in hc. The felony in lieg. v. JanicH (ii) was of the former class, viz., the stopping of an airway in a mine contrary to 7 & 8 Greo. IV. c tiO, s. 6, therefore the workmen were acquitted ; but even in that case it would have been different if the workmen had known that the master did not believe in his right and intended to stop the airwiiy maliciously (>/). In H. v. Tai/lor {<>), a groom, attending his master, who was qualified and was using dogs for killing game, piu-sued the game with the dogs at his master's command : it was held that the groom was not liable to the penalty under 5 Ann. c. 14, for " keeping and using dogs to kill game " ; his qualified master's orders were a good defen(*e. Prinm facie, a person, to be convicted r»f a criminal offence, must have nien^ rea (j)) ; and a ser\'ant who, in obedience to his master's instructions, conducts a place of public resort in such a way as to violate a statute, may be convicted of aiding and abetting his master in the commission of that offence, within 11 & 12 Vict. c. VS, s. 5 (q). But there are offences against statutes in which " guilty mind " need not be an ingredient. Under the Sale of Food and Drugs Act, 1875, a dairy company servant has been convicted of an otfence against {l) 25 L. J. Ex. 339. shot a partridge, was convicted under {m) Reg. r. Bkaxdale (1848), 2 C. & K. tlie same Act for " keeping and using a 765. guu to kill game." {n) Reg. y.Jamc. (1837), 8 C. & P. ^^^ ^,^^^,.^, ^_ ^^. ^^^^^^^^ [-^ggg-j ^ /\ /iQio\ ^:^ V i- Arc « ^\. Q. B. 918; JFiniainsonv. Norn.i,\_l899'\ [o] (1812), 1.3 l^ast, 4G0. See the , ^-. -dt -d nnr i. ^A ^ ' \ J T> 1 T iv • 1 Q. B. 7, per Russell, C. J., at p. 14. remarks oi Bayley, J., on this case m ' *^ ' > r Ex parte Si/lvcster (1829), 9 B. & C 61. [q) Wilson v. -S^ejiY/r^ (1863), 3B. & S. where an unquiilitied .^ervaut whu, in 913; see Tfl/liaiiison v. Norris, see note attendance upon his qualified master, (;;), per Russell, C. J., at pp. 13, 14, servant's criminal liability for wrongs. 22U s. 6, who ''sold " imioccntly (/•). An unregistered assistiint to a registered cliemist was convicted of "selling" poisons in oontra- vention .»t' s. !•", of the riiiinuacy Act, 1868 (31 & ;32 Vict. c. 121) (-s). But a servant, not himself licensed, who sells liquor on behalf and by the orders of his master, cannot be convicted of an offence against sect, -i of the Licensing Act, 1872 (35 & 36 Vict. c. !M) {t). In Masters v. Loirthcr (ii), a sluiriff's officer was attached for extortion under sect. 3 of 7 Will. IV. & 1 Vict. c. 55 (.r). The secretary of a "watch club" collected subscriptions from the mem- bers and forwarded them to a licensed dealer in plate ; ballots were held from time to time among the members ; the successful mem- ber got a watch from the dealer, who paid a commission to the secretary' on tlie amount he collected. The secretary was convicted under sect. 17 of the Inland Revenue Act, 1867, as a person soliciting, taking, or receiving orders for an exciseable article without having in force a proper excise licence (//). The question has been raised whether, in cases under sect. 7 of the 13 read Act, 1836, of selling bread from a cart without being provided with scales, the servant is liable as well as the master. It is submitted not. The penal part of that section expressly omits the " journeyman or servant," who is mentioned in the other parts of the section, and refers only to the " baker or seller " (~). There are certain classes of servants and employees who are amenable to the provisions of special Acts {a). In respect of criminal liability for causing death by negligence in the performance of their duties, servants are in the same position {>•) Hotchin v. Hindmarsh, [1891] 2 liceused firm does not lose the protectiou Q. B. 181. of the proviso to this section by reason Is) Vharmacentical Socielijv. TFhocLou f. hi.s having an office where he takes (1890), '24 Q. B. D. 68.S But a mere hi« orders: Stiwkkry v. Spencer {\%d,Q), intermediary for the receipt and for- oo L. J. M. C. 141. warding of orders to his principalis not {z) See J. P. vol. 60, p. 138; J. P. a "seller" within this secticm: rharnin- vol. 51, pp. 457 and 477. ceutiml Society \ . /r/^Vr, [1901] 1 K. B. ^'„) ^'^^.^ Railway Servants, 3 & 4 601. The person liable under this Vict. c. 97, s. 13 ; 5 & 6 Vict. c. 55, 8. 17 statute is the actual "seller," whether (misconduct); Seainen, Merchant Ship- master or servant: FhannaceKtiiulSuclchj pjjjy. ^^^^ 1894, ss. -I'iO— 238 (offences V. London and Frovtncial Supply Associa- agamst discipline) : Miners, Coal Mine.> timi, Ltd. (1880), 5 A. C. 857. Regulation Act, 1887, s. 60; Metalli- U) Williamson v. Norris, [1899] 1 ferous Mines Regulation Act, is 72 ; Q -6 7 ' L J Offences against the Per.sou Act, 1861 ^ '• _ p r> q u (-'* '^' -^ ^''^''^- ^"^ ^^'^^- **• '^^ (fi'riou^ («) (1852), 11 O. B. J48. driving by person in charge of carriage) ; (.r) Re-enacted by sect. 29 of the juid others : though many of these pro- Sheriffs Act, 1887. visions affect the relations between thr (y) Killickv. Graham, [1896] 2 Q, B. master and the servant rather tbantr...se 196. A " bund Jidc traveller" for a between the servant au.l third persons. 230 SF.KVANTS LlAlilLirV TO I'lIIKD I'EKSONS. as ntlier niembtTS of the cominunity (/v). Servants are sometimes indifted jointly with their masters for nuisance (c). In Ji. V. Ktu'll (d) a compositor was con\icted of printing a treasonous libel ; and in the case which follows (c) there is a dictum by the Lord Chief Justice that " if a servant carries a libel (,/') for the ])urpose of di^tril)Ution for his master, ho certainly is answerable for what he does, tlinugli he cannot so much as write or read." To justify a conviction for making a, false entry in an account under the Falsification of Accounts Act, 1875 (Jiis & 'VJ Vict. c. 24, s. 1), the account in question must belong to or be in the possession of the employer (^7). {()) See Jit!(/. V. m((//ic.s (1857), 2() (c) Itrx v. I'casc (1.S32), 4 H. & Ad. L. J. (N. S.) M. C. 202. As to eficctof 30 ; licij. v. Belts (IH50), 16 Q. B. (N. S.) master's order, see p. 228, .•>i LiAiuLiry of a mastkk to tiiikd i'EUSONS foi; rin: ACTS OK DFFAlIL'l'S OF HIS SF.IJVANTS. A MASTKU' is lial)l(' to tliird persons for liis servant's tortious acts don(^ in the course of his employment. The principle is expressed in the authorities in many wa.ys. For example, it is said, " the master is answerable for the act of his servant, if done by his command, either expressly given or implied " (a) ; a statement of the law which is open to exception, because, as will be seen, a master may be responsible for acts done contrary to liis commands. Sometimes it is said, " the law casts upon the master a liability for the act of his servant in the coiurse of his employment" {b), or the master " is considered as bound to guarantee third persons against all hurt arising from the careless- ness of himself, or of those acting under his order?, in the course of his business" (c). Masters, it is also said, are liable for the conduct of their servants wlieu " acting within the scope of their authority or the normal duties of their employment" (r^) ; when " actually engaged on their master's business " (e), or when acting " as their agents" (./■), "with their master's authority, and upon their business " (//) ; " for neghgences and omissions of duty of their servant, in all eases within the scope of his employment " (//), "in the ordinary course of business " (/), "in the course of the exercise of their duties" (/•), "in the course of the service and for {a) Blackstone, 1 Com. 417. stated by the same judge in liai/ln/ v. Omnibus Co. (1862), 1 H. & C. .530. Co ( 872) L. R. 7 C. P. 415 420. , ^ , . „ , ,.,, (/) Williams, J., m ratten v. Jita, {c) Lord Cranworth, in BartomhtU ^^Q^ote 'e) Coal Co. V. Reid (1858) 3 IV^ioq. 283 ; ^^^ Coi-kljurn, C. J., in Putto, v. Rva Biirm V. Poiihom (1873), Lt. K. H O. V. (ig^y)^ 2 C. B. N. s. 607. •'^63. (^) Story ou Ji/cnci/, s. 423. {d) Strvois V. Woodward (1881), 50 (j) Ediairds v. London i^- Nbrth- Jftstern L. J. Q. B. 231. Rail. Co. (1870?, L. R. 5 C. P. 41.5. (/') Willes J in Bit/r/i v. R/a (1857), (A") JFalbr v. South- Trmtero Rail. Co. 2 C. B. N. S. 607. Sec also the law as (1870), L. R. 5 C. P. 640. 232 master's civil liability to third persons. his (the master's) benefit " (/), in the master's business and " within the scope of the probable authority which must be supposed to be given to the servant" (;;/), " witliin the scope of the power or confidence reposed in the servant " (v^), "in the particular or general employment of a servant " (o) ; " for all acts done by a servant in the conduct of his employment, and in furtherance of such employment, and for the benefit of his master "(y)). All of these expressions are somewhat ambiguous, though they have been elucidated in a long series of decisions. They indicate that different reasons have been given at different times for the rule above stated; and are various modes of expressing the fact that, in the case of masters of servants, the maxim, culpa tenet suos auctorcH, does not hold good ; that this relationship forms an exception to the general rule, that no one is responsible for any conduct but his own ; and that masters are answerable to third parties or strangers for the acts of their servants when engaged in or about their business (). Companies have been held responsible for creating a nuisance, such as obstructing a highway {c) ; for publishing by telegram a libel {(/) ; for wrongful arrests or malicious prosecutions {c) ; for wrongfully detaining bank notes (./') ; for wrongful assault by their servant {(j) ; for reckless driving (//) ; and for infringing a patent (/). There was a reluctance, especially in the Chancery Courts, to impute U) companies the frauds of their directors or servants. How coidd directors, it was asked, be the agents of the company, their employer, to cheat or deceive? In Ec North of EiKjhoul Joint Stock Baukiiig Co., Ex parte Bernard (k), Parker, Y.-C, said that they could not be the company's agents for that purpose. So in Dodtimn'a Ca.-«) Larwickv. English Joint Stock Co., (i) On the ground that it was "an see note (rf). master's frVIL LTABIUTY TO TIIIIH) r'KRSONR. 239 infringement of a patcnl against a wnnpany tluit its Korvants acted against the express orders of the directors (>/). It is immaterial, except so far as it helps to define tlie servant's duties, that he received precise instructions or tliat he was directed to be careful. The maxim vixpoiidcdi Hiipcrinr Avoidd he nullified if an employer could escape liability by merely enjoining care or caution. In short, it is the nature of the employment and not that of the particular instructions which determines the master's liability. Whatever arrangement he makes with bis servants, the law will hold that '' there is an implied authority to do all those things that are necessary for the protection of the property entrusted to a person, or for fidfiUing the duty which a person has to perform " (o). This was strikingly exemplified in the case of LuiipuH v. Gcncnil Omnibus Co. (p), to which reference has already been made. The defendants' drivers had printed instructions " not on any account to race with or obstruct another omnibus, or hinder or annoy the driver or conductor thereof in his business." A driver in the service of the defendants drove his omnibus aernss the road in front of a rival omnibus and overturned it. " I pulled across him,"' said the driver, " to keep him from passing me, to serve him as he had served me." Wightman, J., thought the defendants not liable, the act being wholly wilful and unjustifiable on the part of the servant, and quite beyond the scope of his employment. But the rest of the Court was of opinion that the act having been done while the servant was acting in the course of his master's service and for his benefit, the master was liable. Speaking of the in- structions given to the driver, Willes, J., observed : — I beg to say, in my opinion those instructions were perfectly immaterial. If they were disregai'ded, the law casts upon the master the liability for the acts of his servant in the course of his employment, and the law is not so futile as to allow the master, by giving secret instructions to a servant, to set aside his own liability. I hold it to be perfectly immaterial that the master du'ccted the servant not to do the act which ho did. As well might it be said that if a master employing a servant told him that he should never (w) Belts v.De Viire (1868), L. R. 3 also iu Stevens v. Hinshehvood (1891), Ch. 441 ; and compare Steveim v. Wood- 55 J. P. o41. ivard (1881), 6 Q. B. D. 318. (o) Blackburn, J., in ^//cw v. Loudon (p) (1862), I H. & C. 526; Iiaijli,j\. iS; South II', stern liul. Co. (1870), L. R. (5 Man'chcstrr, Sheffield i\- Luicolu Jtutl. Co. Q. B. 65 ; Abrahams v. Deakin, [ls91] (lS73j, L. R.' 6 C. P. 148; Di/er v. 1 Q. B. 516, where the test applied Mtuidai), [IS'JSJ 1 Q. B. 742; Line v. was : - " Was the arrest made in pro- Royal Society, fc. (1902), IS Times L. R. tectjou of the master's property F" So 634. 240 master's civil liability to titiud persons. break the law, he iiiii;-lit tlius aLsolv liimsidf tVoiii all liahility ior any act of his sorvaiit, thouijh in tho ccnirso of the cmploymcTit. It is a couseqiieuce of tbe same priuei[)le tluit a master will be answerable for things done by a servant if they be performed in such circumstances of emergency as make it part of the servant's duty to act. Thus, in Gof \. Great Northern Rail. Co. {(/), the defendants were found liable in an action for false imprisonment brought by a passenger who had been given into custody by a superintendent of the line, on a charge of travelling witliout a ticket with intent to avoid i)ayment. The question in each case appears to bo, does the servant represent the master? And it will be assumed that the former has the powers wliich, looking to tho ordinary cours(> of business and general usage, naturally belong to oue in his position. Speaking of this class of cases, in TZ/e Bank of New Soiilli Wales V. O/rstoii (y), Sir Montague Smith says: — The result of the decisions in all these cases is, that the authority to arrest offenders was only implied where the duties which the officer was employed to discharge could not be efficiently performed for the benefit of his employer, unless he had the power to apprehend offenders promptly on the spot ; though it was suggested that possibly a like authority might be implied in the supposed cases of a servant in charge of his master's property arresting a man who he had reason to believe was attempting to steal, or had actually stolen it(.s). In the latter of these cases it is part of the supposition that the property might be got back by the arrest ; but in such a case, the time, place, and opportunity of consulting the employer before acting would be material circumstances to be considered in deter- mining the question of authority An authority to be exercised only in cases of emergency, and derived from the exigency of the occasion, is evidently a limited one, and before it can arise a state of facts must exist which shows that such exigency is present, or from which it might be reasonably supposed to be present. If a general authority is proved, it is enough to show, commonly, that the agent was acting in what he did on behalf of his principal. But in the case of such a limited authority as that referred to, the question whether the emergency existed, or might reasonably have been supposed to exist, arises for decision {t) ; and that question raises issues beyond the mere facts that the agent acted on behalf of and in the supposed interest of the principal. Were it otherwise, tho special authority would be equivalent to a general one. Uj) (1861), 30 L. J. Q. B. 148; Giles (t) See GwiUiani v. Twist, [1895] 2 V. Tuff Vale Rail. Co. (1852), 2 E. & B. Q. B. 8-1 ; where also a doubt is expressed 882 ; and compare PonUon v. London ^- whether, except in certain specific cases, Sonth irestern Jt'iil. Co. (1867), L. R. 2 a servant can, on grounds of necessity, Q. B. 534. delegate his authority to a third per.sun (>•) (1879), 4 App. Cas. 270. so as to make the master liable fur that (*) See cases in note (o). third person's negligence. master's civil liability to THIIM) pkrsons. 241 In some cases the Courts appear to have Uiid down the rule that, althougli a master is answerable for the consequences of a lawful act negligently done by his servants, he is not answerable for the consequences of an unlawful act done wilfully. In Lifonn v. M(n-tiii (//), for instance, a servant who was authorised to merely distrain cattle damage fmsant, drove a horse from the highway into the master's close and tliere imjjoundcjd it. In liolitKjbroJie v. LocftI Board of SuH)i(lon (.r), a person to whom the defendants had entrusted complete powers for the management of a sewage farm, wrongfully went upon the plaintiff's farm and did various acts in order to facilitate the flow of drainage along a ditch which separated the plaintiff's from the defendant's land. In both these cases, the masters were exonerated from responsibility. These decisions or, at all events, certain expressions in the judg- ments are, it is submitted, not reconcilable with recognised authorities. In Sei/mour v. Greenwood {i/) and Bat/ley v. Man- ehesfer, Sheffield, and LineohtsJure Rail. Co. (s), the conduct of the defendants' servants in forcibly removing passengers was unlawful. All frauds committed by servants in the course of their business are unlawful. Yet employers are answerable for such conduct. No doubt, in Li/ouh v. Martin, Denman, 0. J., and Patteson, J., laid stress upon the fact that the conduct of the servant was unlawful in itself. But these diet a — which were questioned by Crompton, J., in Limpas v. Genera/ O/nnihas Co. (a) — were probably unnecessary for the decision, the conduct of the servant not being incidental to his duties (/>}. The fact that an act is wilful or unlawful may bo important in determining whether it is within the scope of employment ; but the circumstance does not neces- sarily absolve the master. In Richards v. Went Middlestex Wnter- icork.s Co, {c), a broker in executing a warrant for the defendants assaulted the plaintiff ; the defendants were exonerated, " the assault being no part of the duty of the bailiff or his men." In Di/er V. Mundai/ {d), the manager and an employee of the {„) (1838), 8 A. & E. 512. See also (.r) (1874), L. R. 9 C. P. 575. Gordon v. Roll (1849). 4 Ex. ;5G5. (This [ij) (1861), 7 H. & N. 355. turned on a point of pleading— the dis- {z) (187-i), L. R. 7 C. P. 415 ; (1873), tinction between case and trespass — and L. R. 8 C. P. 148. it is sometimes understood to determine {i, where the act wa-* a wilfully decided that a person was not liable for illegal act, wholly without the scope of a breach of an interdict, which was the employment." committed with his knowledge by a [c) (1885), 15 Q. B. D. 660. servant (d) [1895] 1 Q. B. 742. 242 master's civil TJAIULITY to TIITKD PKK'SONS. defendant, in endeavouring to get back a bedstead from the plaintiff, on which the instalments due under a hire-purchase contract were in an*ears, assaulted the plaintiff's wife ; the defendant was held liable, the Court unaniraousl}- laying it down that there was no difference for the purpose of master's liability between criminal and tortious acts except in so far as the character of the act may be of itself evidence " that it could not have been done in furtherance of the master's business, or at all in the interests of the master." The distinction between the facts of these two cases seems to be this : in the former the plaintiff was complying with, in the latter the plaintiff was resisting, the defendant's demands, when the assault was committed. Anotlier test, often suggested, is that, in order to render his master liable, tlie conduct of the servant must be for his master's benefit. But, in reality, this is contained in the wider proposition that the act of the servant must be one " in the course of the em- ployment " : for no act done not for the master's benefit but for the servant's own ends can be said to be in the course of the employment, while "if there is authority" — (express or to be implied from the scope of the business) — " to do the act, it does not matter if the principal is benefited by it " (c). A., for example, is employed to warn persons who go over a crossing near a sharp curve of the approach of a train. He forgets to do so, he falls asleep or gets drunk, and B. is run over; A.'s employers would be, it is con- ceived, answerable for misconduct certainly not intended to benefit them (/). It is different when the servant has ceased to act as a servant ; when his conduct is no more a necessary or natural con- sequence of his employment than the act of any stranger. If a servant's negligence be the " effective cause " of injury to the plaintiff, the master is liable ; even if the act of a third person, who may be a stranger, intervene between that servant's negligence and the injury. M. was employed by the defendants to drive their cart ; T. went with M. to deliver the parcels, but was forbidden to drive ; M. left the horse and cart ; T. in his absence drove on and injured the plaintiff's carriage; the defendants were held liable {g) . (e) 'Per'Esher,'M..'R.,i-a British Mutual not decided. Bankinff Oo.\. Charmvood, ^-c. {U^7),18 {;/) Enr/elhart \. Farrant, [1897] 1 Q. B. D. 714, 717. Q- ^- ^■l" ! ^^^ lllidge v. Goodwin (1831), '(/) It was' arfifued in Smith v. Sotith 5 C. & P. 190 (horse and oart left in Eastern Rail. Co., [189G] 1 Q. B. 178, street by defendant's servant ; passer-by that the duty owed by a man at a level strikes thi; horse ; an accident ; defen- crossing was to the railway company, dant liable) ; McTkncall v. Great Jf^estern and not to the public; b\it the point was Rail Co., [1903] 2 K. B. 331. master's civil LIAIULITY TO THIRD PERSONS. 243 A master will be liable for a servant's acts if the servant does what he was ordered to do in a roundabout way, or if, in carrying out his master's orders, he does incidentally something on his own behalf. This class of cases, which approximate to those already namerl, turns on questions of degree ; and it is difficult to lay down a inile wliicli will not include too much or too little. The last part of the ahov(^ statement of the law may be too wide. A. few illustrations will show the tendency of the decisions. In one instance (//) a cart driven by a servant of the defendant knocked down and injured the plaintiff in the City of London. It was proved by the defendant that the business of the servants was to go from Burton Crescent Mews to Finchley, and that the spot at which the accident took place was out of the way. In summing iip the case to the jury, Baron Parke left the question thus : — If the servants, being on tlieii- master's business, took a detour to call upon a friend, the master will be responsible. If you think the servants lent the cart to a person who was driving without the defendant's knowledge, he will not be responsible. Or, if you think that th(; young man who was driving took the cart surreptitiously, and was not at the time employed on his master's business, the defendant will not be liable. The master is only liable where the servant is acting in the course of his employment. If he was going out of his way, against his master's implied commands, when driving on his master's business, he will make his master liable ; but if he was going on a frolic of his own, without being at all on his master's business, the master will not be Uable. When a servant, contrary to his master's orders, went out of his way to deliver a parcel of his own, and in returning injured the plaintiff, the master was held liable {i). On the other liand, a master was not made answerable for the negligence of a servant who, having finished his business and returned home, started on a separate journey for a purpose of his own without his master's knowledge {k). {h) Joel V. Morison (1834), 6 C. & P. L. R. 4 Q. B. 476. lu Eai/ncrv. Mitchell 501. (1877), 2 C. P. D. ;5;37, acurman started, (j) Shaih V. Wilson (18?>9), 9 C. & P. for a purpose wlioUy uneonnected with 607. Erskiiie, J., makes the qiiestiou liis ina.-ter's busiuess. to deliver a eoffiu turu ou whether or not the servant was at the house of a relative, hut, in the "intrusted" with the control of the course of the journey, picked up two of carriage, and his language is virtually his master's casks : held, that the repeated by Coleridge, C. J., in Rayner master was not liable ; Venublcsw. Smith V. Mitchell ; ace note {k), i»fni. (1877), '2 Q. B. D. 279 ; Jiunisv. Foulsom a-) Mitchell V. Cressiveller (1853), 13 (1873), L. R. 8 0. P. 563 ; Sanderson v. C. B. 237 ; Storci/ v. Ashton (1869), CoUinn, [1904] 1 K. B. 628. U2 244 mastkr's civil liatulity to third rr.KSONS. This is not to be confounded with a class of cases, of which Covpe Co. V. MadcUch (/) is a type, where the cause of action is a breach of contract. In that case the defendant had hired from the plaintiff a horse and carriage. After driving the defendant, his coachman, instead of going to the stable, drove in another direction for liis own purposes, and by his negligence injured the horse and carnage. The defendant was held liable. "VVTiere u man hii'cs a horso and carnage, there is an irapliorl oLIijj^ation on his part arising out of the contract to return them in the condition in which he received them, fair wear and tear and certain accidents excepted (m) ; and if they are injured by the negligence of the hii'er's servant while driving in the course of his employment, the latter's remedy is by action on the contract, and can be enforced against the hirer only and not against his servant (?;)• But, in such a case, to make the master liable, the servant must, at the time of tlie injury, have been acting in the course of his employment (o). So in Chi'siiire v. Bdilci^ {}>) a jobmaster, from whom the plaintiff had hired a coachman, horse and brougham to drive his traveller about London, was held not liable for the loss of samples, stolen by the coachman and his confederates. But in Abraham v. Bullock (q), where the coachman, in similar circum- stances, left the brougham unguarded and goods were stolen, the jobmaster was held liable. A master is not responsible for the acts of servants which are unconnected with and not incident to tlieir service, and which are not done in tlie course of their employment. (/) [1891] 2 Q. B. 413. See the dis- taking, at tho invitation of the defon- cuwsion of this case in Beveu's Nri/li- dant's servant, rode on the loeoiiiotive ffoice in Lmv (2nd ed.), vol. ii. 964. "for his own convenience," and was [m] Is the obligation more than to injured by its collision with a truck, take reasonable care ? See Sandcrmii v. There was eviden(;e that the deft ndant's Coliins, [1904] 1 K. B. 628. representative knew of and permitted (w) Per the Court, ibid, at p. 41.'). In the use of the locomotive for carrying Harris v. Prrr// ^- Co., [1903] 2 K. B. the defendant's workmen and others. 219, the defendant, a contractor engaged Uriel, that on these facts the defendant upon the constniction of a " tube " rail- was liable for the negligence of his ser- way, had forbidden his electric locomo- vants. tive to be used save for the purpose of / \ c< j /t ;;■ ^1<^/^.^ ■, tt- t> . . 1 1 1 J -1 J (o) Isanaersonv. 6W<(«,v, 11904] 1 K. B. carrying material, and had provided a ^.^^^ ' ' l j platform for passage along the line on "', r n t foot. The plaintiff, an engineer's in- (/'') [I'-X'"'] 1 K. B. 237. spector, engaged upon the same under- (\'i)y Hume's Sc. Sess. (.v) (1800), 1 East, 106. Cas. 387. (A master not liable for act [t) (1821), 4 B. & Aid. 590. The of servant, who, without orders, took a Court drew' the following distinction : horse of a neighbour, and rode it so "If a servant driving a carriage, in hard that the horse was permanently order to effect some purpose of his own, injured.) These cases seem inconsistent wantonly strike the horses of another with Limpm v. Gmeral Omnibit^ Co., and person, and produce the accident, the Paye v. Defrics (1866), 7 B. & S. 137. master will not be liable. But if, in order to perform his master's orders, ho {u) Stevens v. Woodward (1881), 6 strikes, but injudiciously, and in order Q,. B. D. 318. 246 masikk's civil liahiuty to tiiikd persons. elusion was airivod at in Willidm v. Jonei^ (.r), the facts of which were tliese : defendant's servant, a carpenter, was employed in making a signboard in plaintiff's shed. The carpenter, in lighting his pipe, negligently set fire to the shed. The master was not liable. It is establislied by a long series of decisions that one of the tests to be applied is the question whether the particular act was done in protection of the master's property or not. In Alien v. The London and South-Western lly. Co. (//), a ticket clerk in the service of the defendants, erroneously suspecting that a person had attempted to rob the till, gave him into custody after the attempt. In an action for false imprisonment against the company, the plaintiff failed on the ground that the clerk had no authority to take steps to punish an offender. "Thoro is a marked distinction," said Blackburn, J., "between an act done for the purpose of protecting the propertj' by preventing a felony or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. There is no implied authority in a person having the custody of propei'ty to take such steps as he thinks fit to punish a person who ho supposes has done something with reference to the property which he has not done. The act of pmiishing the offender is not anything done with reference to the property; it is done nurely for the purpose of vindicating justice. . . . There is an implied authority to do all those things that are necessary for the protection of the property entrusted to a person, or for fulfilling the duty which a person has to perform." So in Edicanh v. London and North-Western Rif. Co. {z), it was decided by the Court of Common Pleas that a foreman porter had not from his position implied authority to give into custody a person reasonably suspected of stealing the company's property, though the porter happened to be in charge of the station at the time. The facts of Walker v. South- Western lli/. Co. {a) show the fineness of the distinctions upon which the Courts proceed. It was decided that the defendants were not answerable for the act of their servant, a constable, in giving the plaintiff into custody on a charge of assaulting the defendants' servants after a struggle was {x) (1864-6o), 3 H. & C. G02 ; Black- manager followed plaintiff into the bum and Mellor, JJ., dissent. street and gave him in custody. In an (y) (1870), L. R. 6 Q. B. 65 ; Abra- action for false imprisonmeut, defendant hatns V. Dcalcin, [1891] 1 Q. B. 516. held not liable, as the servant had no (Plaintiff, a customer at defendant's authority to act as he did.) See Stevens public-house, paid for his refreshment v. Hinshehi-ood (1891), 55 J. P. 341 ; with a foreign coin ; the barman re- Hanson v. Jl'd/kr, [1901] 1 K. B. 390. turned it to plaintiff's friend, wlio gave {z) (1870), L. R. 5 C. P. 4-15. an English coin in its place. The bar- {a) (1870), L. R. 5 C. P. 640. master's civil liability to third persons. 247 over and when the plaintiff was walking quietly away. On the other hand, the Court thought it might he within the scope of the authority of a servant, who was a constable, to give into custody while a struggle was going on and before it was over, a person who, it was said, refused to quit the company's premises, or had assaulted the company's servants. In Moore v. 3IctropoHtan R//. Co. {h), the comi)aiiy were held liable for the act of an inspector of one of their stations who gave plaintiff into custody on a charge of fraud, on the ground that the defendants were empowered under sect. 104 of their Act to arrest persons conmiitting frauds under sect. 103, and that it might be presumed, in the absence of evidence to the contrary, that the inspector as representative of the defen- dants had authority to arrest. But where the company did not itself possess the power to do the act which the servant took upon himself to do, there was no liability (r) . The question has been considered in connection with the loss of passengers' luggage by railway porters. If the porter receives the luggage for the purposes of the transit, he receives it within the scope of his authority, and the railway company is under the liability of common carriers in respect of it (d) ; but if he receives it for safe keeping till the time of transit shall arrive (d), or while the passenger goes away for purposes of his own unconnected with the transit {e), the company is not liable. All these eases are applications — though not very obvious or perhaps consistent — of the principle stated by Blackburn, J., in A/h^n v. London and South- western Rij. Co. (/'), and often acted on since, that "there is an {b) (1872), L. R. 8 Q. B. 36. See which the act or default of the passenger also Gojf V. Great Northern Rail. Cu. has been contributory. (1861), L. R 2 Q B ''84 ! ("«« den ^^^ ^^^^^^ ^_ ^^^^^^^^^ ^^ ^_ ^^.^_ ^^_ Li/nde v. Ulster Rail. Co. (1871), o Ir. n886) 34 W R 166 '{c) Foiihon V. London c^- S. W. Rail. (/) (1870), L. R. 6 Q. B. 65, 69. Co. (1867), L. R. 2 Q. B. 534 ; Charl'nton Many decisions state that the test is V. London Tramwaxjs Co. (1888), 4 Times wliether the servant has "authority." L. R. 629. This term is the source of much cou- id) Bunch v. Great Western Rail. Co. fusion. It means either (1) express (1886), 17 Q. B. D. 215; 13 A. C. 31. authority given by a principal to an Whether it has been received "for the ageut ; (2) conduct which would lead purposes of the transit " is a question of persons to believe an agreement was fact. In the House of Lords the opinion autliorised by las principal; and (3) in was expressed that with regard to regard to torts, acts which are incidental luo-"-age received by the porter to be to and somehow connected with the carried in the carriage with the passen- duties of the agent or servant or are "•er, the company are couimon carriers, done in the course of his employment, subject to this modification, that having A newspaper proprietor is at Common regard to his interference with their Law liable, as has been stated, for libels exclusive control of his luggage, the published by the negligence of a servant, company are not liable for any loss or even if the servant has been expressly injury occurring during its transit, to tolduot to publish the particular libelloub 248 mastkr'.s civil liability to tiiikd persons. implied authority to do all those things that are necessary for the protection of the property entrusted to a person, or for fulfilling the duty which a person has to perform." A master will be Haljle for tlic tortious acts of his servant when assuming to act for him if the master adopts or ratifies them. This principle of the law of agency is thus stated in JFi/son v. Tionmaii {(j) : — An act (lone for another by a person not assuming to act for himself but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subsfquently ratified by him, whether it be for his detriment or advantage, and whether it be founded on a tort or a contract, to the same extent and with all the conseiiuences which follow from the same act if done by his previous authority. The act must be done, or profess to be done, for and on behalf of the master {/i). Where there is not authority in fact, an un- avowed intention of acting on behalf of another is not enough (/). What is evidence of ratification is a question of fact. In order to make out ratification, there must be a knowledge of the fact to be ratified and an intention to ratify. matter. A banker is liable for a fraud of a cashier, which is (jommitted in some matter connected with his duties, even though the fraud be contrary to the wishes of the banker. It is only by straining language that we can say in such cases that a person had implied "authority" to do that which he was expressly forbidden to do. See Jiank of New South Vales v. Ow.ston, L. R. 4 App. Cas. 270. It is, in fact, basing the mastc^r's and employer's liability on a legal fiction, to make it turn on a (piestion of authtjrity. The tei-m has, no doubt, produced misconceptions. A whole class of dicta, now doubtful or overruled, may be traced to its use. " The liability of the master does not rest merelv on the question of authority ; because the authority given is generally to do the master's business rightly ; but the law siiys that if, in course of carry- ing out his employment, the servant commits an excess beyond the scope of his authority, the master is liable." Per Esher, M. R., in JJyer v. Mioiday, [1895] 1 Q. B. 742, 746. A somewhat similar question arose in trials for embezzlements by servants under 39 Geo. III. c. 85. It was neces- sary to show that the servant had, " by virtue of such employment," received or taken into possession the chattel which he was charged with misappro- priatinar. See as to decisions under this section^ Rcx\. MeUish (1805), R. & R. 80; liexx. Smith (1823), R. & R. 516; liox V. liccchei/ (1817), R. & R. 319. [g) (1843)," 6 Scott, N. R. 894, 904. See Eastern Counties Rail. Co. v. Broom (1851), 6 Ex. 314; Roe v. Birkenhead (1851), 21 L. J. Ex. 90; 7 Ex. 36. (/() IVihon V. Barker (1833), 4 B. & Ad. 616. (i) Keiqhley, Maxted ^- Co. v. Durant, [1901] a". C. 240. 249 Oi]e who employs an indcpeiKlL'Ht coiitnictor to execute a work incurs no liability (except in the cases mentioned below) for the acts of the contractor, or sub- contractor, or his servants. Tliis principle bus boeu at length firmly established. But it was not at once adopted. There was for a long time a disposition to make persons who set on foot or ordered the execution of works liable for the negligent or other tortious acts of contractors (A-). Now, however, it is well settled, subject to the exceptions here- after stated, that an employer is not answerable for the conduct of a contractor, a sub-contractor, and their servants ; and the only difficulty is in distinguishing in practice contractors from servants (/). The defendants in Pcavheij v. Rowland [ni), entered with two contractors into a contract, by which they agreed to construct a drain in the road in connexion with the houses of the defendants. The contractors employed A. to excavate and fill in the work. A. did this negligently, and the plaintiff was thereby injured. Yet the defendants were not liable; A. not being tlie servant of the defendants, and the contractors having been emploj'ed by them to do a lawfid work. So, too, in the leading case of Rccdic v. The London and North- Wester n Ry. Co.{n). The defendants engaged a contractor to construct a portion of their railway, but reserved the right to the company to dismiss any incompetent workman. Through the negligence of the workmen of the contractor, a stone fell upon the plaintiff's husband, who was passing under a bridge, (A) Particularly in connection with done, the occupation of real property. See («) (1849), 4 Ex. 244. See also Bmh V. Stcinman (1799), 1 B. & P. 404. Knight v. Fox (1850), 5 Ex. 721. (A. (A., who had a house by the wayside, contracted with a railway conipauy to engaged B. to repair it. B. contracted complete a portion of tlieir line. B. with C, and C. with D. to furnish the contracted with A. to erect a bridge, materials. The servant of D. placed a B. had in his service C, who acted as quantity of lime on the road, whereby general servant of B., and as his sur- plaiutitf was injured. A. held answer- veyor. B. entered into a contract with able.) This case was questioned in Gai/- C, by which the latter was to supply ford V. XichoUs (lb64), 9 Ex. 702, and scaffolding for the bridge, the defendant, disapproved of in many other cases. B., to provide the requisite materials And see the judgment of Parko, B., in and lights. One of the poles of the Rapson v. CnbUt (1842), 9 M. & W. 710, scatfoldiug improperly projected on the 714. footway. In consequence of this, and {I) See Vamplew v. Parkgate Iron and owing to the want of sufficient light, Steel Co., [1903] 1 K. B. 851. D. was injured. No action by D. lay (w) (1853), 13 C. B. 182. No notice against B. The circumstance that C. is taken in the judgment of the fact that was the general servant of B. did not one of the defendants saw the improper the less make him a contractor in regard manner in which the work was being to the scatfoldiug.) 250 master's civil LIAmUTV TO THTRD PERSONS. and killed liira. The corapany were exonerated from liability. In another case, Iiaj)soii v. Cuhitt (o), the defendant, a builder, was employed by the committee of a club to do certain work, including the putting up of gas-fittings at a club-house. He made a sub- contract with a gasfitter to execute this part of the work. An explosion of gas took place by reason of the carelessness of the latter, and the plainliff was injiu-ed. Yet no action lay against the defendant. The following are the chief exceptions to the foregoing nde : — (i) A person who ein])l()ys a contractor to do work which is unlawful is liable for the acts of the con- tractor. In such a case the contractor's acts are really his employer's. The latter has done just what he was ordered to do, and that which was ordered was itself wrong. A gas company, for example, entered into a contract with W., to open trenches and lay their mains in the streets of Sheffield. W. employed men to do the work. They left, in breach of a public duty, a heap of work and stones in such a position that the plaintiff fell over them and was injured. The company were responsible inasmuch as they had no right to make excavations in the streets {p). Distinguishing the case from Fvndicij v. Rowland {q), Orerfoii v. Freeman (r), and other cases in which employers of contractors were exonerated. Lord Campbell observed : — In these cases notliing was ordered except what the })erson giving the order had a right to order, and the contract was to do what was legal, and the employer was held properly not liable for what the contractor did nogU- (o) (1842), 9 M. & W. 710; MiUu/au Some of them were placed in the patli- V. Wedge (1840), 12 A. & E. 737. (Tlie way by workmen employed and paid by defendant, a butcher, employed a licensed W. Tlaintitt' injured by falliniian ton Cotton Co. (1865), 3 H. & C. 511; (1852), 11 C. B. 867. (Defendants con- Taylor v. Greenhalgh (1874), L. R. 9 tracted with parish officers to pave Q. B. 487. For a clear .statement of the certain .streets, and entered into a sub- law, see Bigelovv, C. J., in Spronl v. contract with W., who agreed to lay the; Btiiuniniinay, 14 Tick. Mass. 1. curb-.stone under the superintendence of {p) J-Jlli.i v. Sheffield Gun Co. (1853), tlie surveyor of the local commissioners. 2 E. & B. 767. The stones were supi^lied by the defen- (q) (1853), 13 C. B. 182. dants, and brought to the spot by them. (r) See note (o). master's civil liability to ttiiki) persons. ?5l gently, tho relation of master and servant not existinj?. But here the defendants employ a contractor to do that which was unlawful, and an act done in consequence of such employment is the cause of tho injury for which the action is broujrht. It is simply the case of persons employing,' another to do an unlawful act, and a damage to the plaintiff from tho doing of such unlawful act. Sometimes the distinction is put in another way. It is said that, when the act which was ordered caused the injury, the person who ffave the order is liable. When the cause of action is some- thing casual or collateral, done in the course of the work, the responsibility rests with the contractor. The limits of this liability are not clear. Whether the occupant of real property becomes liable for the consequences of a stranger's tortious act, before he has notice, seems doubtful (-s) . If the contractor have done in an improper manner that which might well have been done in a proper manner, there is no redress against the person who set the contractor in motion. The owner of a house employed a builder to take down and reconstruct the front. The contractor removed a brest-summer inserted in a party-wall, without taking proper care to shore up the adjoining house. The employer was not bound to make good the damages. He had a right to suppose that the builder would take ordinary precautions (/). (ii) A person who employs a contractor to execute work is liable for the non-performance of duties wliicli tlie former is bound at Common Law or by Statute to fuliil. This is scarcely distinguishable from the last class of cases. In Hardakcr v. Idle District Council {u), Lindley, L. J., expressed this principle in these words : — But tho council cannot, by employing a contractor, get rid of their own duty to other people, whatever that duty may be. If the contractor performs their duty for them, it is performed by them through him, and they are not {.,) Silverton v. Marriott (1888), 69 («) [1896] 1 Q. B. 335, 340. (Defen- L. T. (N. S.) 6L And see the judg- dauts employed coutractor to construct ment of Blackburn, J., in Tarry v. Aahtun sewer ; owing to his negligence in doing (1876), 1 Q. B. D. 31-1, 319. the work, a gas-main was fractured; gas escaped and exploded injuring the (C) Butkr\. JI i< titer [ISIM), 111. & N. phiiutiff: defendants held hable.) See 826- see note (r), p. 253. Hole v. Sitting- l/ollidaij \. National Telephone Co. ,[1899'] bourne Hail. Co. (1861), 2 E. & B. 767. 2 Q. B. 392. 252 ma8Ti:h's civjl liability to third persons. responsible for anything more. They are not responsible for his negligence in other respects, as they would be if he were their servant. Such negligence is sometimes called casual or collateral negligence. If, on the other hand, their contractor fails to do what it is their duty to do or get done, their duty is not performed, and they are responsible accordingly. At Commou Law there is a duty iueumbeiit upon persons not to have their house or premises in such a state as to be a nuisance or to be dangerous to passers-by, and they will not be heard to say that tliey entrusted the performance of their duty to an indepen- dent contractor, and that they are not answerable for what has befallen travellers or passers-by. This is illustrated by Pichird v. Smith (./•), A passenger by a railway train fell into the coal-cellar of a refreshment room at a railway station ; tlio servants of a coal merchant had been putting coals into the cellar and had negli- gently left the trap-door open and unguarded. The lessee and occupant of the refreshment room was held liable to the plaintiff on the ground that the employment of an independent contractor did not absolve him from the duty of taking reasonable precautions to prevent mischief from the opening of the trap-door. The duty was incumbent upon the lessee, and he was liable for its non-fulfil- ment. For similar reasons, one who is bound by statute to perform certain duties cannot shield himself from responsibility by employing a competent contractor. His duty is to do the particular thing which the Legislature ordered — not merely to do his best to perform it. A company was authorised by a private Act of Parliament to construct a bridge which opened, and it was bound by the Act not to detain vessels navigating the river longer than was required to allow carriages, &c. to cross. A vessel having been delayed for a longer period owing to a defect in the construction of the bridge, it was held to be no defence to an action against the company that it had employed a competent contractor (//). The company had delegated their duty at their own risk. {x) (18G1), 10 C. B. N. S. 470; and latter case the thiug to be done was compare Nilbett v. JJixon {1852), 14 D. illegal; in the former the manner of 973, and Grant v. West Crildcr Oil ('o. doing a lawful thing produced illegal (1872), S. L. R. '2.54. Pich-ard \. Smith results. In Baiham v. IpmHch Dock is .sometimes quoted as if reafHrming Coniniiss'wiier.'i {\V,^G), 54 L. T. 23, and the principle stated in Bnnh v. Stein- Ilowitt v. Nottivgham Tramwai/.i Co. man. It is submitted that the principle (1883), 12 Q. B. D. 16, statutes relieved of the former in no way pecvdiarly the defendants of liability for neglect of refers to real property. statutorj- duties. See also Grai/ v. T'ltUen (y) Hole V. Siftmr/hotn-nc Bail. Co. (1804), •) B. & S. 970. (Defendants being (1861), 6 H. & N. 488. This is empowered under a Local Management stated" in some judgments to be in Act to make a drain, employed a con- jirineiple the same as Mli.s v. Shrjficid tractor, who failed to make good the (jas Co., already mentioned, but iu the pavement over the drain; held liable by master's civil LTAT5TLTTY TO TTIIRD PF.RSONS. 253 (iil) A person who employs a contractor to do work which is lawful, but which is dangerous, and is likely in the natural course of tilings, unless precaution be taken, to cause injury, is liable for the consequences of the contractor's failure to take that precaution. Tliis principle is really only an instance of the last. Its limits are far from clear. There are statements of great authority, according to whieli employers in snch cases are in the position of insurers against damage. In Bower v. Peafe (2) the plaintiff and defendant were owners of adjoining houses, and the plaintiff was entitled to the support of the defendant's land for his house. The defendant employed a contractor to pull down his house, excavate the foundations of it, and rebuild it. The contractor undertook the risk of supporting the plaintiff's house, as far as might be necessary during the work, and to make good any damage and satisfy any claims arising therefrom. The means taken by the contractor to support the house were insufficient ; it was injured, and the defendant was held liable. Cockburn, C. J., in delivering the judgment of the Court {a), said : — A man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing someone else — whcither it be the contractor employed to do the work from which the danger arises, or some independent person — to do what is necessary to prevent the act ho has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious conse- quences can arise, and handing over to him work to be done from which mischievous consequences will arise, unless preventive measures are adopted. While it may be just to hold the party authorising the work in the former case exempt from liability for injury, resulting from negligonce which he had no reason to anticipate, there is, on the other hand, fjooil grmuid for holding him liable for injury caused by an act certain to be attended with Exchequer Chamber, reversing judg- a decision on the facta, which are in- mciit of Blackburn, J., at tlie trial and distinguishable from those in Bower v. the Court of Queen's Bench.) Hi/hwsv. Fente, must, it is submitted, be con- IVehster (1867), 36 L. J. Q. B. 166; sidered overruled. Lord Blackburn took Wood on Master and Servant, 6'2G. occasion both in Dalton v. Ani/iix and (s) (1876), 1 Q. B. D. 321. Butler \. Hughes \. /'<>rim/ to doubt it. Hunter (1862), 7 H. & N. 826, cannot be reconciled with Boioer v. Peate, and, as [a) I. e. at pp. 326, 327. 254 MASTKU .S CIVIL LIAHILITV in rilli;i) PERSONS. injurious con^oqueuces if such consequences are not in fact prevented, no matter through whoso default the omission to take the necessary measures for such prevention may arise. This is simply the rule in FJctcher v. HijIaudH [h) : the employer autlinrises such work at his peril ; he insures his noighhour against damage arising therefrom. The point was again considered in Iludhcfi V. Pcycivdl {<•) on ver}' similar facts. In that case the defen- dant em|)loy(>d a (ompetent contractor to rehuild his liouso which adjoined the plaintiif 's ; the contractor's workmen, without tlie defendant's knowledge, cut into the i)arty-wall to fix a staircase, whereby the plaintiff's house fell : tlui defendant was held liahle on the ground of negligence. Lord BlaekLurn, in the course of his judgment, said {d) : — The defendant had a right so to utilise th(i party-wall, for it was his property as well as the plaintiff's ; a stranger would not have had such a ri"-ht. But I think the law cast upcm the defendant, when exercising this right, a duty towards the plaintiff. I do not think that duty went so far as to require him absolutely to provide that no damage should come to the plaintiff's wall from the use he thus made of it, but I think that the duty went as far as to require; him to see that reasonable skill and care were exercised in those operations which involved a use of the party-wall, exposing it to this risk. If such a dutj' was cast upon the defendant, he could not get rid of responsibility by delegating the performance of it to a third person. Lord Fitzgerald, in the same case (^'), lays it down that the liability is not as an insurer against injury, but for the conse- quences of even culpa ler/imma. In this view, which Lord Black- burn also emmciated in Dalfon v. Angm{f), negligence is the ground of liability in such cases, and the only materiality of the " dangerous " character of the work is that it imposes a duty upon the i^erson authorising the work, of which he does not relieve himself by appointing a competent contractor to carry it out, or by stipulating for precautions in tlie contract. Lord "Watson appears to liave taken the same view (//) in Da/foii v. Atu/us ; but he goes further in Hughex v. Percival {c) . It appears to me that the defendant could not escape from liability unl(>ss ho fiu-ther proved that it could not have been reasonably anticii)ated that (b) (1868), L. R. 3 H. L. 830. (e) I. c. at p. Ai^b. {c) (1883), 8 A. C. 413. (/) (1881), 6 A. C. 710, 710. \d) I. c. at pp. 145, 446. {g) I. c. at pp. 831, 832. master's CIVIT. LIAI5ILITV I'O IIIIRI) I'KUSONS. 2'ji) au)' workman of ordinary skill in such operations, who was neither insane nor dishonest, would have dreamt of cutthif? the wall (/<). In other words, the defendant liad to show that it was practically impossible for him to foresee or prevent the operation on the wall. Bnt this lins nothing- to do with negligence. It is the same ground of non-liability as liramwoll, 13., assigns in Nic/wls v. Marxldiid [i), where there was, admittedly, no question of negligence. For tlie purpose of exculpating the defendant. Lord Watson's insane or dishonest workman plays the same part as " the mischievous boy who bores a hole in a cistern" in Nichols v. Mars land {i) . It is submitted that this goes too far and that the true principle is that laid down in Iliiglios v. Percival by Lord Blackburn. It is certainly the principle that has been followed in tlie more recent cases. In Powij v. Wimbledon Urban District Council {k) the defendants employed a contractor to repair a road ; the contractor left a heap of soil uuliglited in tlie road ; the plaintiff fell over the heap and injured herself. Komer, L. J., said (/) : — When a person, through a contractor, does work which from its nature is likely to cause danger to others, there is a duty on his part to take all reasonable precaution against such danger, and he does not escape from liability for the discharge of that duty by employing the contractor if tlio latter does not take those precautions. In ILirddkcr v. Idle District Couneil {ni) it is somewhat difficult to understand the exact grounds of the j udgments ; but they all expressly adopt Lord Blackburn's statement of the law in Dalton V. Aligns (ii). The ground of liability in this case was that, no precautions having been taken by the contractor to discharge the duty incumbent on the defendants, the defendants remained liable. Lindley, L. J. (o), certainly appears to think that had it been a case, not of failure by the contractor to take precautions, but of his carrying out the precautions in a careless way, tlie defendants would not have been liable ; — an empty distinction, if the defendants authorised the work at theii- peril and were insm'ers against damage. In Ilolliday v. National Telephone Co. {p) the defendants, who (h) I. c. at p. 451. warn vessels of position of wreck belong'. {i\ (1875), L. R. 10 Ex. 255; 2 Ex. ing to defendants). D 1 {») (1881), ■) See Lord Blackburn's judgment A. L. Smith, L. J. h\ Dal ton V. ArujKs, 1. c. at p. 829 ; Lord {v) Hol/ida;/ v. National TeleplioHr Co., Watson'MJudgmentiu7/«(///CAV. Percjfrt/, [1899] 2 Q,. B. 392. I c at pp. 4.o(), 4;')!; Black v. Christ- [w) IIu(/hes v. Fcrcival {\.8S'6), 8 A. L. church Finance Co., [1894] A. C. 48. 443. ^, ■ , , ■^. (*) See per Lord Blackburn in Daltoti (.v) Black v. Christchurch Finance Co., V. Anqus, I. c. at p. 829 ; per Lindley, [1894] A. C. 48. ^^ « t^ L. J., "in Hardakcr v. Idle District Council, {y) Tarry v. Ashton (18/6j, 1 Q. B. D. ri89G] 1 Q. B. at p. 340. 314. {t) Hardakcr v. Idle District Council, {z) Gray v. Fullcu (1864), •') B. & b. ri89()l I Q. B. 335, where Lindley, 970. L. J., dismisses all the cases; Gray v. [a] Hardakcr m. Idle District Council, Fullen : see note (y), p. 252, siipra, [189G] 1 Q. B. 335. master's CTVTL T>T\miJTY TO TTTTRD PERSONS. 257 In Boirer v. Poafc (/>), Oockbiirn, C. J., used the phrase " work from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which sucli consequences may be prevented." Lord Blackburn criticised this statement (c) as too wide, as it would include the case of a person who hired post-horses and a coachman from an inn. On tliat point A. L. Smith, L. J., said (d) : — It seems to mo that it is not, in the natural course of things, to bo expected, when a man hires post-horses and a coachman from an innkeeper, that, unless means ar(> adopted to jirevent them, injui'ioiis consequences vrill arise to his neighbours. In such a case, in the ordinary course of events, no injiu-ies would occur to any one. The coachman would drive, and the hirer would ride in the carriage, and, in the ordinary course, the transit would come to au end without injury to anyone. It is submitted that this test is no more difficult to apply than any other which consists in a question of fact, to be answered by reference to common usage and the ordinary course of events. (iv) A person who employs an independent contractor to execute work is liable for the wrongful acts of the contractor if he has the right to control and interfere with the persons executing the work. Of course actual interference will create liability ; but it is submitted that actual interference and control is not necessary, and that the riglit is enough. Bramwell, L. J., thus deals with the point : — To my mind, the distinction of the cases where a man is, and where he is not, liable for the negligence of another person, may be defined in this way. If there is a contract between them, so that the person doing the work, or doing the act complained of, has a right to say to the employer, " I will agree to do it, but I shall do it after my own fashion ; I shall begin the wall at this end and not at the other ; " there the relation of master and servant does not exist, and the employer is not liable. But if the employer has a right to say to the person employed ' ' You shall do it in this way, that is to say, not only shall you do it by virtue of your agreement with me, but you shall do it as I direct you to do it ; " then the law of master and servant applies, and the master is responsible (e). {b) (1876), 1 Q. B. D. 321. (e) Evidence before the Employers' {c) Hughes v. rercival, I. c. p. 447. Liability Commission, 1876 ; Report id) Hardaker \. Idle District Council, /,qt7\ co /...at p. 347. (1877), p. 58. M. S 25.'^ master's civil tjatutjty to tittkd pkksons. And Sir F. Pollock speaks in a similar sense : — It is proper to add that the " power of controlling the work," whicli is the legal criterion of the relation of a master to a servant, does not necessarily mean a present and physical ability. ... It is enough that the servant is bound to obey the master's decisions if and when communicated to him. The legal power of contipl is to actual supervision what in the doctrine of possession the intent to possess is to physical detention (/). So in Ha r dak cry. Idle District Council {(j), Uigby, L. J., tliought that the rights reserved under the contract made the contractor the servant of the council, as did Bruce, J., in the case of another very similar contract (A). In Bior/ess v. Gra// (/) the facts were these: A. employed B. to make a drain to communicate with tlie common sewer. B.'s servant left a heap of gravel on the highway, and the plaintiff was thereby injured. Before the accident, A. had been informed that the heap was dangerous, and had promised to remove it. It also appeared that B. had charged A. a certain rate per load for the removal of the gravel ; in these circumstances the Court thought that there was evidence that A. had not abandoned the entire control of the work, and that he was conse- quently responsible to the plaintiff. In another case a person had hired for the day a carriage. According to the decision in Laugher V. Pointer {k), he would not be responsible for the acts of the postilions, who were the servants of the owner. But having interfered with them, he was held responsible (/). In many cases of this character the question has been : was the negligent person (/) Latv of Torts (5th od.), 78. 890. (Horse and driver hired for defen- (y) [1896] 1 Q,. B. 335, 352, 353. dant's water cart from contractor ; defen- (A) Fenni/v. Wimbledon XJrhan Council, dant's inspector pointed out streets to be [1898] 2 Q. B. 212, 216. See the dis- watered; defendants not liable.) Hhiclh cussiou of the question of "control" v. Edinhurf/h and Glasijow Itail. Co. and liability for the acts of borrowed (1856), 18 F. 1199. (Defendants pro- servants, at pp. 15 ct sqq., supra. vidcd cart, a contractor the horse and (j) (1845), 1 C. B. 578. See also driver; defendants not liable.) Blake v. Thirst (1863), 2 H. & C. 20. [1] McLaurjhIin v. Fnjor (1842), 4 (Defendant, a builder, contracted with M. & G. 48 ; Smith v. Lawrence (1828), local commissioners to make a sower, 2 M. & R. 1 ; Bradij v. Giles (1835), 1 and underlet to N. the excavation and Mood. & Ro. 491. The last case cannot the brickwork at a fixed price jier yard ; be regarded as a subsisting authority. N. employed his own men, but defen- See also Randleson v. Murray (1838), 8 dant had the right of dismissing them. A. & E. 109. (A warehouseman em- In consequence of N.'s negligence to ployed a master porter to remove a provide a sufficient hght, plaintiff fell barrel from his warehouse ; the master into an unfenccd track; held, tliat porter employed liis own men and tackle, defendant was liable : but see remarks and, through the negligence of the men, of Martin, B.) See also Stephen v. 'Thurso the bai-rel fell rmd injured the plaintiff ; Police Cotnmissioners (1876), 3 R. 535; /(^/rf, that the warehouseman was liable.) Sadler v. Eenlock (1855), 4 E. & B. 570. This case has often been questioned: [k) (1826), 5B. &C. 547; Jones \. Cor- Murphey v. Caralli (1864), 3 H. & C. poration of Liverpool (1885), 14 Q,. B. D. 462, master's civil liability to third ref^sons. 259 the servant of the defendant ? But interference or control short of that involving the relations of master and servant is enough to fix liability. If tho hiror actively interferes with the driving, and injury occurs to any one, tho hirer may be liable, not as a master, but as the procurer and cause of the wrongful act complained of (?;i). It lias already been stated witli reference to Laugher v. Pointer, that persons who hire a carriage and servant do not thereby become responsible for the acts of the servant ; ho remains the servant of the owner. In like manner the owners of ships have been held liable for the wrongful acts of their servants, even though at the time the injury was committed the vessel was chartered or hired by some other person. Thus in Dal yell v. Tyrer {n), the lessee of a ferry hired for a day a steam-tug with its crew from the defendants ; the plaintiff, wlio was a passenger on board the tug, was injured by the breaking of a rope, owing to the negligence of the crew in mooring the tug. It was held that the crew remained the servants of the defendants, and that they were answerable. A person is not liable for the acts of those whom he has not chosen to serve him, and whose services he is bound by statute or otherwise to accept. This is exemplified in regard to pilots. Ship-owners being bound by statute in certain circumstances to take them on board and give them the charge of their ships, are not in such cases made to suffer for a pilot's mistakes or carelessness (o). It is (>«) Per Bowen, L. J., in Donovan v. conduct of a licensed pilot. This case Zaim/, #c., [1893] 1 Q. B. 629, 634 ; turned chiefly on 6 Geo. IV. c. iL'o. liuth V. Surrey Bock Co. (1891), 8 Times "The master, however well qualified to L. R. 116. conduct the ship himself, is bound, (w) (1858), E. B. & E. 899. See under a penalty, in a jjroat measure to BaumwoU v. Furness, [1893] A. C. 8, 17 divest himself of its ctmtrol, and to give (per Lord Herschell) : "Not a single up the charge to the pilot. Asaneces- authority has been cited in which the sary consequence the master and owners owner of a vessel has ever been held are exempted from responsibility for liable on a bill of lading or as for a tort acts resultiug from the mismauagement in any case, in which the master of the of the pilot.") General Steam Xaviga- vessel, or those who were guilty of the tion Co. v. British and Colonial Steam negligence, have not been properly Navigation Co. (1868), L. R. 3 Ex. 330 ; described as the servants of the owner." (1869), L. R. 4 Ex. 238. The main (o) Lucey v. Ingram (1840), 6 M. & W. question here was, whether the employ- 302. (Owner not liable when ship under ment of the pilot was compulsory at the 82 '2f)0 master's nviL ltariltty to third persons. sometimes a question of difficulty to know when the employment of a pilot is imperative and "VN'hen such duty ceases ; hut if a vessel be under the care of a compulsory pilot lie is not regarded as the servant of the owner. Indeed, sect. ^-iS of the Merchant Shijiping Act, 1894, expressly declares : — An owner or a master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any (jnalified pilot acting in charge of that ship, within any disti-ict where the emplojTnent of a qualified jiilot is compulsory by law. In like manner the captain of a man-of-war is not accountable for the acts of his officers ip). So, too, as explained in Sfottc v. Carticright [q), a bailiff, steward, or manager is not liable for the acts of the servants whom he appoints. In Quarman v. Burnett [r), it is observed by Parke, B. : — The liability by virtue of the principle of relation of master and servant must cease where the relation itself ceases to exist ; and no other person than the master of such servant can be liable, on the simple ground that the servant is the servant of another, and his act the act of another ; conse- quently, a thii'd person entering into a contract with a master, which does not raise the relation of master and servant at all, is not thereby rendered liable. Such expressions, however, must not be understood to interfere with the general rule that principals are answerable for the acts of their agents within the scope of their employment. Thus litigants may be liable for the acts of theii' solicitors in the course of litigation (.s), and merchants for the conduct of their factors or spot where the collision took place. The ncring TS82), L. R. 7 P. D. i'rl and 132 ; Court took the view that whether that The rrbis Iltndrik, [ISiCJ] P. 177, cases were to or not, in the ciicumstancos the in which the i)ilot had not control of the owners were not liable. This decision navigation. \i\TlieSvhuan; ThvAlhano, was followed in The Charlton (1895), 73 [1892] P. 419, the evidence was that a L. T. (N. S.) 49. See also Ritchie v. defective look-out helped to cause the Bowsfcld (1817), 7 Taunt. 309; The accident; therefore the owners were Stettin (1863), Br. & Lush. 199; The held liable. lona (1867), L. R. 1 P. C. 426; The (p) Nicholson v. Moumeij (1838), 15 Velasquez (1867), L. R. 1 P. C. 494. East, 384; but see as to liability of Somewhat inconsistently, the owner has master of a merchant ship, who is for sometuues been regarded as liable for some purposes regarded as owner, Maude the contributory negligence of the pilot. and Pollock (4th ed.) i. ISf) ; Story on See judgment of Lord Blackburn in Agency, sect. 317. Spaight V. Tedcastlc {\m\), L. R. 6 A. C. {q) (1795), 6 T. R. 411. 217. It is to be obser ed that the {>) (1840), 6 M. & "VV. 499, 509; exemption does not apply when the Stone v. Cartivright {\"Sib), QT.'R. AW. pilot has to be selected out of a limited (•«) Collett v. Foster (1857), 2 H. & N. class: Martin v. Tcmpcrky (1843), 4 356; and compare -SOwi^A v. A'ca/ (1882), Q. B. 298 ; and sec also The Guy Man- 9 Q. B. D. 340. master's civil liability to third persons. 261 agents (t). The responsibility of masters is but an application of a general rule (//). Masters are liable to third persons for the consequences of negligence in employing incompetent servants. This question has usually arisen in actions brought by servants against masters when the defence of common employment is in question. It may, however, arise otherwise : being liable to employees who suffer from their negligence or recklessness in employing men who have no skill, masters are not less liable to strangers {.r). (t) Grammar v. Nixon {\l'2b), 1 Str. 653 ; Hern v. Nichols (1701), 1 Salk. 289 ; on the other hand, Lucas v. Alason (1875), L. R. 10 Ex. 251. [u) As to this pomt, see Haseler v. Lemoyne (1858), 28 L. J. C. P. 103 ; remarks of Bramwell, B., at p. 344, in Udell V. AthcrtoH (1861), 30 L. J. Ex. ; Lindley on Fartnershij}, 6th ed., 158 ; "Wharton on Acjency, sect. 19 ; Story on Af/enci/, sect. 308, and Mr. Green's note to sect. 451. Probably the correct view is that the servant is one kind of agent, the extent of whose authority is to be inferred from the nature of his employment. (x) JFilson V. Merry (1868), L. R. 1 S. & D. 326. If a master negligently suffered a volunteer, who was incom- petent, to engage in his work, and some one was thereby injured, no doubt the master would be liable. In Wanstall v. Foolcy (1841), 6 C. & F. 910, n., the Queen's Bench decided that a corn- factor, whose business was managed in his absence by his sister, was liable for the negligence of a tipsy servant, whom she had sent with corn to a customer. See also iriieatley v. Patrick (1837), 3 M. & W. 650. in his Leading Cases, p. 657, Mr. Bigelow observes that "a servant who merely hires labourers for the performance of the master's work is not in the situation of a sub-contractor, and cannot be held liable for damages caused by the negligence of such labourers : ' ' he thinks an action would lie against the master. Addison, Torts, 116 (7th ed.) ; Stone v. Carttvright (1795), 6 T. R. 411; Wilson v. Peto (1821), 6 Moore, C. P. 47. See Wright v. Leth- bridcje (1891), 63 L. T. (N. S.) 572. It has, in fact, been broadly laid down that, if a servant employs another person to do his work, or assist him therein, the master is liable for an injury re- sulting from such person's acts (Wood, 588). No doubt, in Booth v. Mister (1835), 7 C. & P. 66, an action for injuries by the driver of a cart — the evidence being that the defendant's servant was in the cart, but that a person not his servant was driving — Abinger, C. J., ruled that it was the same as if the defendant's servant had driven. But he reserved the point, and it was never argued. If the evidence had been that the servant knew nothing of the driver, or that he knew him to be in- efficient as a driver, the master would be liable on the principle of Engelhart v. Farrant, [1897] 1 Q. B. 240, viz., that the servant's negligence was the " effective cause " of the injury. In Al- thorfv. Wolfe (1860), 8 Sm. N. Y. 355, the defendant had set his servant to shovel snow and ice off the roof of a house. The servant procured the assistance of A. B. was injured by the fall of the ice ; it did not appear whether the ice was thi'own by the servant or A. ; the defendant held responsible (two judges dissenting). One of the judges based his decision on the ground that the servant was entitled to procure aid. It is submitted that the point ought to turn on the question whether he was acting within the scope of his authority in employing A. See on this point the remarks of A. L. Smith, L. J., in Gwilliam V. Twist, [1895] 2 Q. B. at p. 88. 262 master's civil liability to tiiied persons. Public officers under Government are not responsible for torts committed by their subordinates. Thus in the well-known case of Lane\. Coffo)) (//), the Postmaster- General, it was held, incurred no responsibility for the loss of letters in the office by reason of the negligence of an inferior officer ; and in WItitfield v. Lord h DeHpencer (2), decided in 1778, it was held that case did not lie against the Postmaster-General for a bank note which Avas stolen by one of the sorters out of a letter put into the Post Office ; inasmuch as tlie relation of master and servant does not subsist between the head of a Government department and his subordinates. Nor have the Telegraph Acts, 1863 and 1868, made any change in the Postmaster-General's position in that resj)ect {a) . The principles upon which a master or em- ployer is held answerable for the acts of servants do not apply to the Crown. If the master or employer is answerable upon tin; principle that qui facil per ulium fucit per se, this would not apjily to the sovereign, who cannot be requii-ed to answer for his own personal acts. If it be said that the master is answerable for the negligence of his servant, because it may be considered to have arisen from his own misconduct or negligence in selecting or retain- ing a careless servant, that principle cannot apply to the sovereign, to whom negligence or misconduct cannot be imputed, and for which, if they occur in fact, the law affords no remedy (6). Sometimes the Legislature has expressly relieved Government officials from liability for the acts of their subordinates. See as to this, G' Grady v. Cardiccll, in which the defendant, Secretary of State for War, was held not personally liable in an action for breacli of a contract entered into by him on behalf of the War Department (r). {y) (nOl), 1 Lord Kaym. 646 ; 12 House (1886), 17 Q. B. D. 795, which Mod. 473. was an action for damages for negli- (z) Cowper, 754 ; Nicholson v. Mouncey gence, it was held that the defendants (1812), 15 East, 384. See Story on were not servants of the Crown so as to Agency, 319. be exempted from liability to such an {a) Bainbridge v. The Postmaster- action. As to the liability of a shcriif General [1906] 1 K. B. 178. for the acts of a bailiff, see Wood v. {b) Qanterburii v. Attorney-General Finnis (1852), 7 Ex. 363 ; and 51 & 52 (1843), 1 Phill. 306. (Petition of right Vict. c. 43 (County Courts Act, 1888), against tlie Crown by the Speaker of s. 35, as to the liability of a high House of Commons for loss of furniture, bailiff for the acts of his "baililfs. And plate, pictures, by a fire alleged to have see sects. 52, 54 and 55 of the same Act. been caused by the negligence of ser- {c) (1873), 21 W. R. 340. See Kirk vants of the Commissioners of Woods v. T/ie Queen (1872), 14 Q. B. I). 558, and Forests.) See Furnell v. Bluvdkui where there was a motion for an in junc- (1887), 12 A. C. 643 ; Att.-Gcn. of Straits tion by a suppliant under a petition of Settlements v. Wemyss {\)i^%), 13 A. C. right against the Secretary of State for 192. In Gilbert v. Corporation of Trinity War. master's civil liability to third persons. 263 This exemption does not extend, as was held in Sutton v. Clarke {d) and Ilatl v. Smith (c), and other cases, to trustees and other bodies which perform statutory duties, and the profits of which are appropriated to public purposes (./'), or levied for their own profit (f/). But where there were no tolls leviable, and the powers under the statute, for the neglect of which the defendants were sued, were purely discretionary, there was held to be no liability (//). A master is not liable for injuries caused by his ser- vant's negligence if they might have been avoided by reasonable care on the part of the person injured. What constitutes such contributory negligence as will disentitle a plaintiff to recover is a question which does not belong exclu- sively to the Law of Master and Servant, and it need not here be discussed (/). {d) (1815), 1 Marsh. 429. (f) (1824), 2 Binif. 1-36. If) Mersc)/ Dock Trmtccn v. Gibhs (18(36), L. R. 1 H. L. 93. [g) F((rnab)j v. Lancaster Canal Co. (1839), 11 A. &E. 223. {h) Forbes v. Lee Conservancy Board (1879), 4 Ex. D. 116. See CV'v. Wise (1864), 5 B. & S. 440. (/) Laxv. Darlington (1879), 5 Ex. D. 28 ; Ellis v. London ^- South Western Rail. Co. (1857), 2 H. & N. 424; Smith v. South Eastern Mail. Co., [1896] 1 Q. B. 178. See Beven's Negligence in Law (2nd ed.), Bk. I. ch. v; and ch. xxvi, infra, at p. 304 ; and the notes on the Employers' Liability Act, 1880, in pt. ii. APPENDIX A. Note on the history of a master's Uahility for his servanfs torts. It is sometimes said that the present law as to the liability of a master for the torts of his servants is a relic of the time when services were performed, as a rule, by slaves or villeins who were the property of their masters, and for whose acts they were naturally held responsible. This plausible view is not borne out by the authorities. No clear trace of the modern doctrine is to be found in early authorities, such as Bracton. One of the few passages in his treatise bearing on the subject is the following (tZe Corona, f. 158), where, discussing wrongs committed by servants, he puts this case : " But what if the servant of any one, in the absence of his lord, has seized the cattle of any tenant of his lord, and the tenant himself complains concerning the servant that he has seized his cattle unjustly, and detained them against bail 264 master's civil liability to third persons. and surety, and that servant has called the Court of his lord to warrant, and the Court has warranted to him concerning the service ? The servant shall be released and the Court shall answer for his own act. But cannot the Coui't answer without the lord, win -n the service touches the lord himself ? Yes, so that the judo:ment be amend(Hl. But if the cattle be seized without a judgment of the Court, and have be<'n claimed by the lord himself when he was ])resent, and ho himself lias refused them on bail and not surety, each shall be liable, as it appears, the one for the seizure and the other for the refusal of release. And althoujjh his lord himself has avowed the seizure of his servant, ho does not acquit the servant but he charges himself, and each is liable for the act of the servant, the servant because he seized it, and the lord doubly, because he avows the act of his servant, and because he refuses (the release of the thing seized)." "Likewise, let it be, that nothing has been done by the Court, nor by the lord of the C(jurt, but only by the servant, as if the servant without the lord or without the Court, has levied a tax upon the tenants of his lord as villeins who are free, or who say that they are perchance, when they are serfs, and afterwards, when he has of his own authority made a distress, and the cattle upon the complaint of the tenant have been released by the viscount upon bail and surety, and a complaint has been made only respecting the servant without the lord, it is asked whether the servant can or ought to answer without tlie lord, and to bring the case to judgment without him ? In which case, it will have to be inquired from the "lord, whether he will avow the act of his servants or not, but if not, then the lord may amend it, but if he has avowed, or not amended it, he makes the injury his own, if there has been any injury." Neither in that passage nor any other, as far as T know, inBracton, is there anything to show that a master was regarded as liable for the conduct of his villein when acting without orders. Apparently the master was liable for the acts of his villeins when he had ratified them, or what is the same, had availed himself of what was done or refused to release what had been seized by them. I am not aware of any case in the Year Baoks, or any passage in Flowden's Reports, Eastell, or Fitzherbert, which clearly lays down the doctrine now accepted. No doubt, instances are to be found in which actions were brought (for example, Bmlien v. FiiKjIam, 2 H. IV., fol. 18, pi. 6), against masters for the acts of their servants on a custom of the realm. Thus a person was held answerable for the spread of fire when it was due to his guest or servant, Cov,-elVii ritdihites. 207: and actions on the case lay against innkeepers for the loss of goods by their servants. That the law was not understood as it is now will be seen from the following citations from Belle's Abridg., Actio)/ on Case, 95: "If a seiwant, who is my merchant, sells an unsound horse or other chattel at a fair to a man, no action lies against the master for the deceit, for he did not command the servant to sell this to an// our in par- ticular :" 9 Hen. VI., 53. r)ut if the servant by direction and contrivance of the master, sells to any particular man, if it proves unsound, an action lies against the master, for it is his sale. If the servant of a tavern-keeper sells wine to another, which is corrupt, action lies against the master, althoiigh he did not tell the seiwant to sell to the particular man : Southern V. //'"v, C'ro. Jac, 468. See Noy's Ma.rims, c. xliv. Other authorities might be cited to show that a- master was not supposed to be liable if a servant abused his authority. Thus Popham, C. J., lays it down in Waliham v. MnJf/ar, Moore, 776 (3 James I.), that "where a master sends his servant to do an unlawful act he shall answer for him if he made a mistake in d(nng the act. But whore he sent him to do a lawful act as h(>re to take the goods of the enemies of the king, and he takes the goods of a friend, the master shall not answer. If a master send his servant to market to buy or sell, and he rob or kill by the way, the master shall not answer, but if he sent him to beat one, and he kill or mistake the person and kill another, the master is a murderer." Dodderidgo argucid that the master was answerable in all public inatters. In this case the (juestion was whether the owner of a vessel with letters of marque to seize Spanish ships was res])onsible to the subjects of a friendly State whose ship had been wrongfully taken. It APPENDIX. 265 does not appear to have been contended, as of course would be done in such circumstances in the present day, that a master as a tjeneral rule was liable for the acts of his servants in their employment. The sole contention was that the master was liable in all public matters. As late as the time of Charles II. the modern doctrine was virtually denied in Kini/ston v. Booth (1683), Skinner, 228, where three justices of the King's Bench laid down the following rule : — " If I conunand my servant to do what is lawful, and he mis- behave himself, or do more, I shall not answer for my servant, but my servant for himself, for that it was his own act ; otherwise it was in the; power of every servant to subject his master to what actions or penalties he pleased. Thirdly, if I command my servant to do a lawful act, as in this case, to pull down a little wooden hoiise (wherein the plaintiff was and would not come out, and which was carried upon wheels into the house to trick the defendant out of possession) and bid them take car(! they hurt not the plaintiff ; if in this doing my servant wound the plaintiff', in trespass and assault of wound- ing brought against me, I may plead ' not guilty,' and give this in evidence, for that I was" not guilty of the wounding; and the pulling down the house was a lawful act." The Doctor and Student (published 1518), at p. 237, recognises the dis- tinction between sale to a particiilar person and sale generally. See also Noy's Maxims (published 1641), where it is said at p. 95, c. xliv, "If a ser- vant keeps his master's fire negligently, an action lies against the master ; otherwise, if he carry it negligently in the street. If I command my servant to distrain, and he ride on the horse taken for the distress, he shall be punished, not I. If a man command his servant to sell a thing which is defective generally to whom he can sell it, deceit lies not against him ; otherwise if he bid him sell it to such a man, it does." The doctrine stated inthetext is usually said to have been first laid downin MichaeJx. Al€stree{\Qll), 2 Lev. 172, 3 Keb.650, an action on the case against a master and servant for bringing horses to train in Lincoln's Inn Fields, whereby the plaintiff" was injured. Judgment was given for the plaintiff. " It shall be intended the master sent the servant to train the horses there." In the report in Ventris (i. 295), no mention is made of this point or indeed of the action being against the master, and in the report in Keble the master's liability is apparently justified by the fact that he ordered the horses to be brought to an open public place. The modern doctrine was more clearly affirmed by Holt, C. J., in Tnrher- villey. Stamp, Comb. 459, 1 Salk. 13, Ld. Raym. 264, in 1697, decided only a few years after Kinnstou v. Boath, already mentioned — which was an action against a person for allowing fire to extend beyond his close. Holt, C. J., ob- served, " Though I am not bound by the act of a stranger in any case, yet if my servant doth anything prejudicial to another, it shall bind me, where it may be presumed that he acts by my authority, being about my business." The same view was taken in Mid'dhton v. Fowler (1699), 1 'Salk. 282. [Nhi Prius, coram Holt, C. J.) This was an action on the case against defendants, masters of a stage coach. A trunk was delivered to their coachman ; it was lost out of the coachman's possession. It seems that no money was paid to the defendants for carrying the trunk. Holt, C. J., held that an action did not lie, and the plaintiff' was nons^iited. He thus laid down the rule : " no master is chargeable with the acts of his servant but when he acts in exenttion of the authority given bv his master, and then the act of the servant is the act of the master." See'also Jones v. H<(rt (1699), 2 Salk. 441 ; L. Eay. 736 (a pawnbroker's servant took a pawn ; the pawner tendered the money to the servant, who said he had lost the goods ; held bv Holt, C. J. , that action for trover lay against the master) ; Hern v. Nichols (l701). Holt, 462, 1 Salk. 289. For an account of the Roman law as to liabilities of masters, see Die Haftinifj fiir Fremde Culpa tiach Bomische Becht, von Dr. P. F. Von Wyss ; Pothier, Oblig. 121 ; M. Sourdat's Traite de la Besponsahifite. The variety of reasons given for the existence of this liability is very surprising. (1.) The servant is the agent of his employer, and the liability of the latter is but an instance of the doctrine Qui facit per alium facit per se. 266 ma.stkr's civil liability to thikd persons. Parko, B., in Qitarman v. Burnett (1840), 6 M. A: W. oU9 ; Aldorsou, B., in Hiddiinson v. The York, Newcastle and Berwick Rij. Co. (1850), 5 Ex. 343 ; Lord Cranworth in Burtunshill Coal (fo. v. Beid (1S58), 3 Macq. 266. This reason scarcely accounts for tho liability of imisters for acts which they have for- bidden and in circumstances in which an action would lie in case, but not trespass. (2.) "The reason that I am liable," says Lord Brougham in Duncan v. Findlater (1839), 6 C. & F. 894, 910, "is this, that by em- ploying him (the servant) I set tho whole thing in motion, and what ho docs, being done for my benefit and under my direction, I am responsible for the consequences and doing it" — a reason which is criticised by Parko, B., in Quarman v. Burnett, uhi sup., 510; which does not seeni to apply to work not dangerous in itself, and which would justify imposing respon- sibility upon one who employed a contractor equally with one who em- ployed a servant. Sco Best, C. J., in Hall v. Smith (1824), 2 Bing. 156, 160. (3.) "There ought to be a remedy against some person capable of paying damages to those injured : " Willes, J., in Linipus v. General Omnibus Co. (1862), 3 11. & C. 526. (4.) " lie (tho master) is liable for an injury done to a stranger by his servant acting within the scope of the latter' s authority, because the stranger has had no hand in the choice : " Bramwell, B.,in Swainsonv. North- Kastern By. Co. (1878), 3 Ex. D. 341, 348. "Masters are also answerable for the injury occasioned by tho wrongs or negligence of their servants, &c. This has been established to render masters careful in the choice of whom they employ :" Pothier on Ohli'jations, Evans' Translat. p. 72 ;— a reason which seems to have force only when a master has been guilty of some fault in tho choice of his servants. (5.) Holt, C. J., in Hern v. Nichols, 1 Salk. 289, an action for deceit, puts the law on the ground that as somebody must suffer, it is but right the person who employed the deceiver should do so. (6.) "As in strictness everybodv ought "to transact his affairs, and it is by tho favour and indulgence of the law that he can delegate tho power of acting for him to another, it is highly reasonable that he should answer for such substitute, at least civiliter, and that his acts, being pursuant to the authority given him, should be deemed acts of the master:" Bacon's Abridgment, Muster and Hen-ant. (7.) Bentham, in his Principles of Penal Law (vol. i. 383 of Works), puts the master's responsibility upon the following ground :" The obligation imposed upon the master acts as a punishment, and diminishes the chances of similar misfortunes. He is interested in knowing the character and watching over tho conduct of them for whom ho is answerable. The law makes him an inspector of police, a domestic magistrate, by rendering him answerable for their imprudence." The same view is thus put by M. Sainctelette : "La respcmsabilite du fait d'autrui n'est pas uuo fiction inventee par la loi positive. C'est une exigence de I'ordro social " : De la Besponsabilite et de la Garantie, p. 124. This seems the ground on which tho rule of law can be justified. APPENDIX. 267 APPENDIX B. Master's civil liability for ads or defaults of servant. Liability. Goodman v. Kennell (1828), 3 C. & P. 167. (Person occasionally em- ployed by defendant as his servant took the horse of another when on defendant's business; jury found that the horse was taken with defen- dant's implied consent or authority ; defendant liable ; Court refused a new trial.) Gregory v. Piper (1829), 9 B. & C. 591. (See p. 278, infra.) Chandler v. Broiujhton (1832), 1 C. & M. 29. (Defendant sitting in a gig beside his servant, who was driv- ing ; horse ran away ; action in tres- pass lay.) Joel V. Morison (1834), 6 C. & P. 501. (See p. 243.) Booth V. Mider (1835), 7 C. & P. 66. (See p. 261.) SUath V. Wilson (1839), 9 C. & P. 607. (See p. 243.) Giles V. Taff Vale By. Co. (1853), 2 E. & B. 822. (Plaintiff contracted to plant hedges for defendants ; placed thorn plants in a piece of ground close to defendants' station. The general superintendent of the line refused to let them be removed ; defendants liable in ti'over on the ground (Jervis, C. J.), that " it is the duty of the company, carrying on a business, to leave upon the spot some one with authority to deal on behalf of the company with all cases arising in the course of their traffic as the exigency of the case may demand.") Patten v. Bea (1857), 2 C. B. N. S. 606. (The defendant's general man- ager had a horse and gig of his own. They were kept for him at his master's expense, and occasionally used in his master's business. In going with the authority of defendant upon the de- fendant's business with the horse and gig, he drove against plaintiff's horse. Immaterial that the manager was also going on private business.) Goff V. Great Northern Bi/. Co. (1861), 3 E. & E. 672. (PlaintifP, at No Liability. McManus v. Crickett (1800), 1 East, 106. (See p. 245.) Croft V. Alison (1821), 4 B. & Aid. 590. (See p. 245.) Mackenzie v. McLeod (1834), 10 Bing. 385. (Housemaid lighted straw in order to clean a smokj' chimney ; master not liable on the ground that it was no part of her duty to clean the chimney.) Lyons v. Martin (1838), 8 A. & E. 512. (Seep. 241.) Lanih v. Palk (1840), 9 C. & P. 629. (See p. 245.) Gordon v. Bolt (1849), 4 Ex. 365. (Defendant, a contactor for certain works, employed sub - contractor, whose nitm in the execution of the works but without the defendant's authority used the plaintiff's crane, and broke it ; defendant not liable in an action of trespass.) Eastern Counties By. Co. v. Broom (1851), 6 Ex. 314. (Servant of a railway company took plaintiff, a passenger, into custody for an alleged breach of a bye-law, &c., and carried him before a magistrate. The attor- ney of the company attended to pro- secute ; held no evidence of authority, on the ground that " it was not shown there had been any directions given to the (servants) in general to enforce the bye -laws and no evidence of ratifi- cation." This case seems not recon- cilable with Giles v. Taff Vale Co. See Goff\. Great Northern By. Co., and Bank of New South Wales v. Owston.) Boe v. Birkenhead By. Co. (1851), 7 Ex. 36. (Plaintiff, a passenger, who refused to pay an additional fare, was taken into custody by a railway servant acting under the direction of the superintendent of the station; defendants not liable. There was doubt whether the servants were really the servants of the company ; Alder son, B. But the case is doubtful.) 268 master's civil LIA15ILITY TO TMIKD PEKSONS. Liability. the instance of ticket-collector, do- feiulants' inspector of police, and superintendent of lino, charged with travelling without a ticket with in- tent to defraud. "Wo think it a reasonable inference that, in the conduct of their business, tho com- pany have on the spot officers with authoritj' to determine, without tho delay attending on convening the directors, whether the siavants of the com])any shall or shall not, on the company's behalf, apprehend a per- son accused of this offence.") Sci/iitdirr V. (ireviiiiuivd {\S0\), (> II. & N'. 3o9, and 7 II. & N. Soo. (De- fendant liable for the act of his servant, a guard of an omnibus, in forcibly remo\'ing passenger whom ho believed to be drunk. " It is not convenient for the master personally to conduct the omnibus, and he puts the guard in his place; therefore if the guard forms a wrong judgment the master is responsible.") Linqjus v. Geiieral Umnihns Co. (1862), 3 II. & C. 526. (See p. 239.) Faye v. De/ries (1866). 7 B. & S. 137. (Defendants sent their barge under management of liglitermau to a wharf to bring it alongside. At suggestion of foreman of wharf, the lighterman moved away from the wharf plaintilf's barge and fastened it to a pile in tho river. The plain- tiff's barge settled on a projection in bed of river and was injured.) Liiidv. Jjoriduii and Norfh-Wf'dfrn Ry. Co. (1866), L. E. 1 Q. B. 277. (Gatekeeper inviting plaintiff to pass over a railway crossing.) Whnrtman v. Fmrsov (186S), Tj. H. 3 C. P. 422. (Defendant, a con- tractor, employed men and horses ; the men were allowed an hour for dinner, but not allowed to leave tho horses. One of the men left his horse unattended ; it ran away; held that it was properly left to the jury to* say whether driver was acting within scope of his employment, and that they wore justified in finding that ho was.) Van Den Evymle v. Ulster Ry. Co. (1871), 5 Ir. C. L. 6 and 328. (A clerk of the defendants, while issuing tickets, erroneously thought ho had seen a ticket in the plaintiff's hand ; charged him with having stolen a No Liability. MitcheU v. CrasswvUer (1853), 13 C. B. 237. (See p. 243.) Lijyo V. Ntiabuhl (1854), 9 Ex. 302. (Plaintiff agreed to carry defendant's goods for her in his cart ; defen- dant's .servant, without defendant's authoritj", allowed jjlaintiff to ride on the cart; cart broke down, and the plaintiff injured.) Miirjdiy V. (Juralll (1864^, 3 TI. & C. 462. (Bales of cotton stored in- seciuely in a warehouse by porters in the defendant's emplo^Tnent under the superintendence of J., the ware- house-kce])er employed by the owner of warehouse; dc^fendant not liable, the bales having been stowed under J.'s directions.) Will ia III V. JoMS (1865), 3 11. & C. 602. (See p. 246.) PoiiUon V. Loik/oi) and Sai'th- IVestcrn Ry. Co. (1867), L. R. 2 Q- B. 534. (See p. 247.) Storci/ V. Anhtnn (1869), L. E. 4 Q. B. 476. (A carman, sent with horse and cart by his em ploy (u-, a wine-merchant, to deliver wine and bring back empty bottles ; while re- turning, after business hours, he drove out of his way on business, not his master's ; while he was so driving, the plaintiff was run over.) Edwards v. London and North- Western Rij. Co. (1870), L. II. 5 C. P. 445. (See p. 246.) Walhr V. Sontli Western Ry. Co. (1870), L. R. 5 C. P. 640. (See p. 246.) AJ/en V. London and Hoidh Western. Ry. Co. (1870), L. B. 6 Q. B. Sm/«/( (1889), 60 L. T. (N. S.) 708. (See p. 238.) Smith V. North Metrtypolitan Tram- ways Co. (1891), 55 J. P. 630. (See p. 238.) The Apollo : Little v. Fort Talbot Co., [1891] A. C. 499. (See p. 238.) Euth V. Surrey Commercial Dock Co. (1891), 8 Times L. E. 116. (Plaintiii employed by contractor, and injured by fall of deal planks which had been improperly loaded. Defendants' foreman admitted that if ho saw improper loading he would interfere.) Dyer v. Mnnday, [1895] 1 Q. B. 742. (See p. 241.) Engdhart v. Farrant, [1897] 1 Q. B. 240. (See p. 242.) Line v. Boyal Society for the Pre- vention of Cruelty to Animals (1902), 18 Times L. R. 634. (Defendants' rules, but not their Act, permitted their inspectors to give flagrant offenders into custody : an inspector acted mistakenly under this rule.) Jones v. Sadlard, [1898] 2 Q. B. 565. (Owner of brougham, horses and harness liable for negligence of a hired coachman.) (See p. 20.) Abraham v. Bulloclc{\m\), 86 L. T. 796. (Defendant let out brougham. No Ll.\BILITY. omnibus to defendant's yard, a quarter of a mile distant. Plaintiff injured by stranger's negligent driving. No evidence of such neces- sity as authorized def en dant' s servants to engage stranger to drive.) Beard v. London General Omnibus Co., [1900] 2 Q. B. 530. (See p. 232.) Hanson v. Waller, [1901] 1 K. B. 390. (Plaintiff' given into custody by defendant's manager on a mis- taken charge of theft ; the act not reasonably necessary for protection of defendant's property ; therefore no implied authoritv.) See Stevens v. IHmhdwuod (1891), bi> J. P. 341. McDon-ally. Great Western By. Co., [1903] 2 K. B. 331. (Defendants' servants shunted trucks which, owing to the means thej- took, would have remained stationary but for the inter- ference of trespassing boys, who re- leased the trucks so that they injured the plaintiff. Defendants' servants' negligence not " effective cause" of injury.) Sanderson v. Collins, [1904] 1 K. B. 628. (Defendant sent his carriage to be repaired by plaintiff". The plain- tiff lent a carriage to defendant to use while the repairs were proceed- ing. Defendant's coachman, with- out defendant's knowledge, took the plaintiff's carriage out for his own purposes, and injured it by his negligent driving.) Cheshire v. Bailey, [1905] 1 K. B. 237. (Plaintiff hired from defendant a brougham, horse and coachman to drive his traveller about with samples ■of his wares. Defendant knew the traveller would leave the brougham sometimes, with the coachman in charge of the samples. The coach- man, by arrangement, drove to meet thieves, who stole the samples.) Enben v. Great Fivgall Consoli- dated, &c., [1906] A. C. 439. (See p. 235, snpra.) APPENDIX. 271 Liability. horse, and coachman to plaintiff to drive plaintiff's commercial traveller. The coachman loft the brougham un- guarded in traveller's absence, and the goods in the brougham were stolen.) Scotch Cases. Baird v. (?ra/iam (1852), 14 D. 615. (A master sent his servant with glandored horse to a fair at such a distance that the servant was obliged to put up for the night ; action by owner of stable for loss of horses and cattle which defendant's horse had infected with glanders.) Fanhls V. Toionsend (1861), 23 D. 437 ; 33 Jur. 224. (A manufactur- ing chemist, whose business con- sisted partly in boiling down the carcases of horses for manure, liable in the full value of a stolen horse, which had been purchased by his servant and used for the above purpose. Gregory v. Hill (1869), 8 E. 282. (Defendant employed foreman and masons to build a house, and paid them wages ; he also entered into a contract with a carpenter for carpenter's work ; held that the defendant was liable for injuries to carpenter by the negligence of the masons.) Amekican Cases. Philadelphia and Reading By. Co. V. Derby (1852), 14 How. 468. (Defendants liable for collision caused by servants disobeying an express order.) Carman v. Mayor of New ForA* (1862), 14 Abb. 301. (Owner of land employed workmen to cut trees on his own land without employing a competent superintendent, or instructing them as to the boun- daries ; defendant liable for trees of plaintiff which his workmen ignorantly cut down and removed.) AWwri'v. nW/ (1860), 8 Sm. N. Y. 355. (See p. 261, n. {x).) Chapman v. New York Central By. Co. (1865), 33 N. Y. E. 369. (Defen- dants liable for torts of servants when drunk.) Lannen v. Albany Gas Light Co. (1871), 44 N. Y. 459. (Defendants, No Liability. Scotch Cases. Limvood v. JIathorn (1817), 19 F. C. 327 ; I. S. App. 20. (The servants of defendant cut down a treo close to a public road ; it fell upon and killed a man ; the defendant not liable, he being at the time absent, and having given no authoritj^ to cut the tree, nor apparently any authority to cut trees in that locality.) Waldiev. JDuke of Boxhurgh (1822), 1 S. 367. (E. obtained an interdict against W. from deepening part of the river Tweed ; W.'s sei'vant, in his master's absence, and against his exj^ress orders, committed a breach of the interdict ; W. not responsible.) American Cases. Wright v. Wilcox {183S) , 19 Wend. 343. (Master not liable when a servant wilfully threw a lad off a waggon and drove over him.) Mali V. Lord (1868), 39 N. Y. 381. (Defendant not liable for the act of his superintendent in arresting and searching the plaintiff, on a charge of stealing goods from the defendant.) Fraser v. Freeman (1871), 43 N. Y. 566. Defendant, under claim of right, endeavoured to force his way, with the aid of his servant, into premises of plaintiff's intestate ; servant shot the latter in the struggle; defendant not liable, in the absence of evidence that shot was fired with assent or by direction of defendant.) 272 master's civil ijaiiii.tty to third persons. Liability. American Cases. informed that gas was escaping in the cellar of a house, sent servant to ascertain where the leak was; the servant lighted a match for this purpose, and an explosion took place; defendants liable.) Wolfe V. Mersereati (1859), 4 Duer, 473. '(No defence that defendant's servant wilfully drove against plain- tiff's waggon, if he did so in order to avoid greater peril, which it was the defendant's interest to avoid.) Railroad Co. v. Hmmwrj (1872), 19 Wal. 049. Contractor agreed to furnish the materials and labour for building a wharf; to do the work under the direction and super^•islon of the railway company's engineer and to his satisfaction ; the company liable for the negligence of the contractor or his servants.) 273 CHAPTER XXV. CRIMINAL LIAHILITY OF MASTER FOR THK ACTS OF HIS SERVANT. A MASTER is criminally liable for the acts of his servant done in execution of his express orders. An act which the master has ordered is for all purposes his. In an early case Foster, J., thus explained the criminal re- spousibility of a master, who orders his servant to do that which is unlawful : — A. biddotli his servant to hire somebody, no matter whom, to miu'der B., and furnisheth him with money for that purpose ; the servant procui-eth C, a person whom A. never saw nor heard of, to do it ; is not A., who is mani- festly the first mover or contriver of the murder, an accessory before the fact ? Answer : — if present, he is a principal, if absent an accessory before the fact (a). It is, of coui-se, an a fortiori case if the master procm-e the servant himself to commit the mm-der. On similar grounds, a haker, who knew that a servant put into bread alum, contrary to '36 Geo. III. c. 22, s. 3, and 37 Greo. III. c. 98, s. 21, was held to be properly indicted for selling bread which contained so much alum as made it injurious to health (i?^). If the em- ployer makes use of an agent who is ignorant of the criminal character of an act, the former is liable (r) ; if both are aware that the act which they do is illegal, both are liable {d) ; and the fact that he was obeying his master's command is no defence to the servant (^'). The general principle prevails that a man can be made criminally responsible only for an act which he has himself com- mitted or ordered. " Whoever actually commits, or takes part in {a) Foster, C. C. 125. [d] Reg. v. James (1837), 8 C. & P. 131 . {b) It. V. Dixon (1814), 3 M. & S. 11. See p. 228, supra. (c) Si'Q. V. Bleasdale (1848), 2 C. & K. (e) Maloney v. Bartley (1812), 3 Camp. 765. ' 210, 212. 274 CRIMINAL I.IAIULITY OF MASTER. the actual comraissiou of a crime, is a principal in tlie first degree, whether he is on the spot when the crime is committed or not ; " and " whoever aids or abets the actual commission of a crime, either at the place where it is committed, or elsewhere, is a principal in the second degree in that crime" (,/"). Some impor- tant exceptions have sprung up. ]\fasters may be criminally liable for libels published by their servants acting within the scope of their employment, even though they are no parties to tlie publica- tion. The pro^trietor of a newspaper, for example, may be absent at the time of the ])ublicalioii of a libel; lie may be totally ignorant of it, and morally innocent ; tlie editor or other servant may have acted negligently ; but at Common Law the proprietor was prbna facie liable. Thus, in R. v. Almon (//) the owner of a book-shop was indicted for the sale of a libellous pamphlet of the nature of which it did not appear that he was aware ; and in li. v. Wdlter {//), decided in 1799, Lord Kenyon ruled that the proprietor of a news- paper was answerable criminally for the acts of his servant though he lived in the country and had nothing to do with the conducting of the newspaper. This is, however, subject to sect. 7 of (i & 7 Vict. c. 90, which provides : — Whensoever, u]K)n the trial of any indictment or informatioii for the publication of a libel, under the plea of "not guilty," evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said 2)ublicati()n did not arise from want of duo care or caution on his part (/). Criminal Liabi/if// of Mantc)' under cvrtaiji IStatufcH. There is another class of cases, hard to define, in which masters have been made to answer in criminal or quasi-criminal proceed- ings, for acts the knowledge f)f which was not brought home to (/) Stcpheu'H Dlfffist of Criminal (A) 3 Esp. 21 ; also ii. v. Cw/^c/; (1829), Law (5th ed.), pp. 30 :uid 31". Of course Moo. & M. 432. a ma.ster might be guilty of man- (i) li. v. Holhronk (1877), 3 Q. B. D. slaughter through the acts of his scr- (iO ; 4 Q. B. D. 42. In this case vants ; e.g. if a di-uggist employed au Lush, J. (ibid. p. 49), instances "public unskilful as.sistaiit, and customers were nuisances" as an exception to the rule thereby poisoni^d. that iunoceuco of mind is a defence to the master, and cites Jteg. v. Stephens {g) (1770), 6 Bur. 2G86. (1866), L. R. 1 Q. B. 702. CRIMINAL LIABILITY OF MASTER. 275 tliem. In interpreting certain statutes, particularly those relating to revenue purposes, Courts have disregarded the presumption that a person is criminally liable for no acts but his own, on the ground that, though penal in their consequences, the proceedings were substantially civil ; that it was a master's duty to prevent breaches of the law by his servants ; or that the statutes would be rendered inoperative if a master were not punished for their acts. It is too late to question the legality of these decisions, however difficult it may be to reconcile some of them with the principle that mens rea is necessary to constitute a criminal offence. The 35 & 36 Vict, c. 94, s. 16, made it an offence for "any licensed person" to supply any liquor to a constable on duty. It was argued in one case that a licensed victualler ought not to be convicted under this section when liquor was supplied by a servant without his master's knowledge. That was not the view of the Coiu't ; it was thought enough that the servant knew [k) . In the subsequent case of Bosley v. DavicK (/), proceedings were taken under sect. 17 of the same Act against a publican as a "licensed person" who "suffered any gambling," &c. The Court decided that actual knowledge of the offence by the master was not necessary ; but that there must be some evidence that he connived at what was going on ; though evidence that his servant was in charge of the premises and knew what was going on is sufficient {>u), for the master in such a case has "delegated his own power to prevent" (;^). This interpretation was adopted in Redyate v. Hat/)ie>i {o), and Bo)id v. J^m)is{o). (k) MiiUins V. Collim : see note (o). ker, 227. (Tea imported by sailors But see the comments of Coleridge, without knowledge of owners ; ship for- C. J., on this case in Somerset v. Hurt feited.) R. v. Bixon (ISi-i), 4 Camp. (1884), 12 Q. B. D. 360. 12; see note [h). A.-G. v. Stddon (;) See note (o). (1830), 1 C. & J. 220; 1 Tyr. 41. (m) Bond v. Evans (1888), 21 Q. B. D. (Dealer in tobacco convicted of harbour- 249. In Emary v. Nolloth, [1903] 2 ing and concealing tobacco, which was, K. B. 264, the master himself was in in fact, concealed by his servant.) Ad- charge of the premises: vide infra at rocate-Gcmral y. Gr(?«i (1853), 15 T. 980. end of note (o). (Clerk to a distiller sold a cask of whisky (w) See Emarij v. Nolloth, [1903] 2 to one who had no licence to sell sjiirits ; K. B. 264, 269 sent it to the purchaser with permit ob- (o) See below. The following are the tained for another party ; an offence chief cases: — Master Liable. - A.-G. v. within 2 Will. IV. c. 16, for which Stranyforth (1721), Bunb. 97. (The employers liable.) Michell v. Brown Crown lost duties on wine by mistake (1858), 29 L. J. M. C. 53. (Owner of a of clerk of one of five partners; defen- vessel convicted under 11th sect, of 54 dants liable.) A.-G. v. Burgers (1726), Geo. III. c. 159, which makes it an offence Bunb. 223. (Pengelly, C. B., ruled to throw out of any vessel in a navigable that, if several persons were concerned river ballast, &c., though owner not on either in partnership or otherwise, the boar 1 at the time of the offence.) Crown might come against any one of Howclk v. Wynne (1863), 15 C. B. N. S. them for the whole penalty, it (non- 3. (Breach of special rule made under payment of duty) being in the nature of Coal Mines Regulation Act, 1860 ; see a tort.) Mitchell v. Torup (1766), Par- now the Act of 1887, 50 & 51 Vict. t2 276 CRIMINAL LIABILITY OF MASTI^R. Looking at the decisions collected below, all that can be said is that there is a prima facie improbability against criminal c. 58, 88. 51, 52.) Searlf v. Reynolds (18^6). 7 B. & S. 704. (Appellant who did not know of ordor not lisililc for disobedience of his foreman to order of inspector to disinfect certain premises, Coikbiirn, C. J. ; ay)pellaut liable, Mel- lor. J.) Core v. Jnniea (1871), L. R. 7 Q B. i;^5. (To convict baker under 6 & 7 Will. TV. c. M. s. 8. for piittinir alum in bread, knowledire nece.ssary ; but the knowledge of the seivant will suffice to make master liable.) Barms V. Akroi/d {1872), L. R. 7 Q. B. 474. (Occupiers of factory liable under 18 & 19 Vict. c. 1-21, s. 12. and 23 & 24 Vict, c. 77, 8. 13, for a nuisance by emission of smoke caused by their servants.) MxHins V Col/ws (1874), L. R. 9 Q. B. 292. ( A licensed victualler liable, under 35 & 36 Vict. c. 94, s. 16, sub-s. 2 : althoug-h he had no knowledge that his servant had supplied drink to a con- stable on duty.) Itoslo/ v. Dnvies (1875), 1 Q. B. D. 84. (Appellant charged with " suffering'" gaming on his licensed premises ; case sent back to the justices with an intimation ihat. though actual knowledge of card-playing on the part of the appellant or his servants need not he .shown, some circumstance-* must be proved from which it could Ix; inferred that they connived at what was going on.) Ecdgate v. Htnjnes (187»i), I Q- B. D. 89. (Appellant charged under (sect. 17 of the Intoxicating Liquors Licensing Act, 1872 (35 & 36 Vict, c. 94), with "suffering" gaming to be carried on in an hotel : justices inferred that the appellant knew that gaming was intended to be cairied on, and took pains not to know what her gue.sts were doing.) Bond v. Evans (1888), 21 Q. B. D. 249. (Offence same as in Redgate v. UayncH ; no evidence of licen.scd person's connivance : but servant in charge of premises and saw gaming going on.) Nivcn V. Greaves (1890), 54 J. P. 548. (Respondent charged under Public Health Act, 1875, with permitting his chimney to .send forth .smoke ; no evi- dence of negligence except on part of stoker.) Commissioners of Police y . Cart- man, [1896] 1 Q. B. 655. (Sale of liquor by respondent's servant, contrary to his orders, to a drunken person ; respondent guilty of offence under 35 & 36 Vict. c. 94, s. 13, the act being within the scope of the servant's emploj-- ment.) Brmrn v. Foot (1892). 8 Times L. R. 268. (Adtdtorated milk sold without knowledge or assent of Tnaster, 38 & 39 Vict. c. 63, s. 6.) Gollman v. Mills, [1897] I Q. B. 396. (Sheep slaughtered by servant iTi master's absence and contrary to his orders, in contravention of bye-law under Slaughter-house Act. 1874.) C'oppin v. Moore (No. 2), [1898] 2 Q. B. 306. (Merchandise Marks Act, 1887, s. 2, sub-s. (2). Sale by servant of hams under false description, without know- ledge and contrary to orders of master.) Mastkk NOT LiAni,E. — Harrison v. Leaper (1862), 5 L. T. (N. S.) 640. (Owner of a steam threshing machine not liable when his servant put it, without his master's f>rders and contrary to the Highway Act, too near the road.) Copleij \. Biirl'H (1870), 39 L. J. M. C. 141. (A. kept a refreshment room, and had a notice as to penalties incurred for supplying refreshments to persons not travellers during prohibited hoiu's ; his servant neglected to question certain strangers ; " Gross negligence or want of ]5re(;aution in this matter would be evidence of guilt, but there is nothing of the sort here," Willes, J.) Nichols v. Eidl (1873), L. R. 8 C. P. 322. (To convict a person of an offence under order made in virtue of Contagious Pisea.ses (Animals) Act, knowledge that animal is diseased, nccicssarv.) R. v. Hundley (1864), 9 L. T. (N. S.") 827. (To sustain conviction under 5 & 6 Vict, c. 99, ss. 8 & 13, for employment of feniales in mines, knowledge or acqui- escence must be proved.) 7^. v. Gilroys (186(i), 4 R. (3rd .series) 656. (Sale of beer from cart on highwaj' by a servant employed to deliver beer, for which orders had not previously been given at the brewery ; no part of the duty of the servant to sell beer ; no evidence of servant's knowledge.) Somerset v. Hart (1884), 12 Q. B. D. 360 (Charge same as in Ridgatr v. Haynes ; no evidence of master's knowledge or connivance; servant, who knew, not in charge of premises.) Nticman v. Jones (1886), 17 Q. B. D. 132. (Steward of club sold liquor without licence to non- members contrary to orders and without knowledge or assent of trustees ; trus- tees not liable.) (Jhisholm v. Doidton (1889), 22 Q. B. D. 736. (Owner of fa(!tory charged with negligently using furnace so as to emit smoke, 16 & 17 Vict. c. 128, ss. 1, 2; no evidence of negligence save on part of stoker.) Massey v. Morriss, [1894] 2 Q. B. 412. (Shipowner charged under 39 & 40 Vict, c. 80, s. 28, with " allowing the ship to be 80 loaded as to submerge . . , the CRIMINAL LIAP.ILITY OF MASTER. 277 liability in the absence of mens rm; that the Legislature may, nevertheless, for public reasons, impose penalties on those who do not prevent as well as those who commit certain offences ; that a construction which would make a statute inoperative is not to be assumed ; and that " the general scope of the Act, and the nature of the evils to be avoided" (;;) must determine whether a master is chargeable for acts which are unknown to him. Where the word " knowmgly," " wilfully " or " negligently " occurs, knowledge or negligence has of course to be proved : the difficulty arises in the cases in which the question is of implying these terms. Compare, e.g., Ciuuly v. Lecocq [q] with iSomer.set v. Rarf (r) ; or MHllins v. Collim [a) and Bond v. Evan>i {t) with Shenris v. de Rutzen {n) and Masse// v. Morri^s {jc), and it becomes plain that the construction of the statute is controlled by collateral considerations (//). In Slierms v. de Rutzen [ii) Wright, J., dis- cusses somewhat fully the question of the necessity of proving mens rea{z). centre of the disc " ; loading done by master; no evidence of owner's know- ledge or assent.) Somerset v. IVade, [1894] 1 Q.B. o74. (Permitting drunk- enness on premises, 35 & 36 Vict. c. 94, s. 13 (1) ; no evidence of publican's knowledge or connivance or of servant being in charge.) N.B. — The onus of proof in relation to this offence has been shifted on to the publican by the Licensing Act, 1902, s. 4. Emary v. NoUoth, [1903] 2 K. B. 264. (Intoxi- cating liquor was knowingly sold to a child under fourteen in a bottle neither corked nor sealed by a licensed person's servant contrary to the express orders and without the kuowledgeof his master, who was himself in charge of the premises at the rime of the tmle.—Held, that the licence-holder could not be con- victed under sect. 2 of the Intoxicating Liquors (Sale to Children) Act, 1901 (1 Edw. VII. c. 27).) £oi/le v. Smtth, [190j] 1 K. B. 432. (Respondent, who was licensed to sell by retail, at his brewery, beer for consumption off the premises, employed a drayman to deliver beer to customers. The drayman had no authority to sell any beer for the respondent, his sole duty being to deliver beer to customers only who had pre- viously ordered it, and he had been expressly ordered not to sell or deliver beer to other persons, and to bring back to the brewery any bper which he was unable to deliver. The drayman sold and delivered beer from his van to persons who had not previously ordered it: — Held, that respondent could not be convicted under sect. 3 of the Licensing Act, 1872, for selling liquor at a place where he was not authorized by his licence to do so.) Dickenson v. Fletcher (1873), L. R. 9 C. P. 1 ; 43 L. J. M. C. 25. (Breach of rule in Mines Regulation Act, 23 & 24 Vict. c. 151, ss. 10 & 22; see now 50 & 51 Vict, c. 58, ss. 49, 50.) Baker v. Carter (1878). L. R. 3 Ex. D. 132. (Breach of rule in Coal Mines Regulation Act, 1872, s. 51 ; see now 50 & 51 Vict. c. 58, SI. 49, 50.) See also Henme v. Garton (1859), 28 L. J. M. C. 216 ; R. v. Bishop (1880), 5 Q. B. D. 259. [p) Stephen's History of the Criminal Law, vol. ii., d. 117 (1883 ed.). {q) (1884), 13 Q. B. D. 207 (sale of liquor to drunken person). (/■) (1884), 12 Q. B. D. 360 (permitting gaming). {s) (1874), L. R. 9 Q. B. 292 (supply- ing- drink to constable oh duty). [t] (1888), 21 Q. B. D. 249 (permitting gaming). (m) [1895] 1 Q. B. 918 (supplying drink to constable on duty). (.1) [18'j4] 2 Q. B. 412 (submerging load-lme of ship). (y) See the attempt to reconcile the cases in Bond v. Eeans, ubt. sup. ; and the judgment of Alverstone, C. J., in Emury v. Nolloth, [1903] 2 K. B. 264, 268. (z) See also on this point Belts v. Armstead (1888). 20 Q,. B. D. 771 ; Budd V. Lucas, [1891] 1 Q. B. 408, remarks 27cS CRIMINAL LlAlilLlTY OF MA.Sl'KK. Employers have frequently been lield eriniinally answerable for nuisances committed by their servants. Thus, in R. v. Mcdloi/ (a), the directors of a gas company were indicted jointly with their servantti, who conducted the works, for turning- refuse into a stream. Denman, C. J., directed the jury to find the defendants guilty, tliougli tliey were ignorant of what had been done. Perhaps some of such decisions were given at a time wlion the difference between criminal and civil responsibility had not been precisely detorruined. Perhaps, too, they are justified by the fact that proceedings for nuisances are in substance, though not in form, civil. Under this class of cases may be ranged those of which Gr('(/oi\i/ v. Piper (b) is a type. That was a case in wliieli a servant, though careful and skilfid, could not carry out tlio orders of liis master without doing the mischief whicli was complained of. A servant was ordered to lay down a quantity of rubbisli near tlie plaintiff's wall and gates — which could not be done without some of the rubbisli touching the wall or gates; the defendant was made answerable for the inevitable or ujitural consequences of liis instructions. of Pollock, B. and Charles, J. at pp. fraudulent purposes, and not in the in- 412, 413 ; Kearlcy v. Tt/lo)- (1891), Go terests of his emploj-ers. The Court, L. T. (N. S.)'261; Derbi/shirev. HomUs- applyiiii the circnm- Mason, [1902] 2 K. B. 743 ; Anr/ln- stances the possession of the servant was Aiiiericaii Oil Co., Ltd.\. 2[aiini)i()ii'\ not the jiosse.ssiou of the master, and 1 K. B. o3G. In this last named case, quashed the conviction. which turned, as Channell, J., said, on , ^ ,,0.),% or* c -n ono o i . 1 . ^ )i w l"i^^4), D Kj. cv 1. 292. hee also "very special circumstances, an em- wo* ; l^Q,■l^\ t d i n -d -no ^ •' ■} ^ 1 • i J J i.v K.\. Stcphcnn (18b()), Li. K. 1 Q. B. /02. plover had been convictei under the .^i t i • j 1 1 • TI7 • i-x J TIT A ^ 10-- .- (Uvvuer 01 works carried on bv his Weisfhts and Measures Act, 18 to, s. 2;), ^ ^ ■ t t. \^ e ■ ■ J. ,,", .... .' ' ' aijents, indictable tor causin) (1829), 9 B. & C. 591. 279 CHAPTER XXVI. master's liability to servants A master is not liiiblo at (Jonnnoii Law to his servants for the acts of fellow-servants done in tlie course of their employment. This principle, which, it would appear, is peculiar to English law and kindred systems {a), has been altered b^' the Employers' Liability Act of ISSO, and it does not apply at all to claims under the Workmen's Compensation Act, 190G. Both these statutes are dealt with subsequently (b). But it will be advisable to examine the Common Law which is still in force. The reasons assigned for the exemption above stated are various. Sometimes it is put on the ground of general policy, and on the inexpediency of exposing a master to a multiplicity of actions (c). Some- times the reason assigned is that a servant does, as an implied part of the contract between himself and his master, take upon himself the natural risks and perils incident to the performance of his services {(i) ; or it is said that the liability of the master for the acts of the servant is an exception which ought not to be extended, and that the servant has no cause of action against his fellow servant because "he has not stipulated for a right of action against his master if he sustains damage from the negligence of a fellow servant" {(■). Perhaps the most generally accepted reason is that stated by Shaw, J., in FanveU v. Boston Rail. Co. (./) : — The implied contract of tlie master does not extend to indemnify the servant against the negligence of anyone but himself ; and he is not liable in tort, as for the negligence of his servant, because the person suffering does {(i) "La question de responsabilite employment, civile se pose en termes identiques entre {h) Pt. ii. patrons et cuvriers et entre ctrangers" : [c) rricstlcy v. Fowler (1837), 3 M. Lv Code Onvricr, Andre et Quiberry, & W. 1. p. 250. In 1883 and 188-i MM. Saiizet {d) Morgan v. Valr of Neath Rail. Co. and Sainctelette raised the point that (1865), L. R. 1 Q. B. 149; per Bowen, the origin of the two kinds of liability L. J., in Thomas v. Quartermaine (1887), differed -that the Hability to third per- 18 Q. B. D. 685, 691, 692. SODS was founded on tort, while that to {c) Bramwell, B., in Swn'tnson v. The servants arose out of contract; but it JVorfh-Eantern Hail. Co. (1878), L. R. 3 ■was admitted that the master was Uable Ex. D. 341, 348. to the servant lor injuries in his (/) (1842), 4 Met. (Mass.) 49. 280 master's LIAlULllY TO SKKVANTS. not stand towards him in the relation of a stranger, but is ono whose rights are regulated, by contract express or im])li(Ml. In another case, it is put in this way : — The principle is that a servant, when ho engages to serve a master, under- takes, as between himself and his master, to run all the ordinary risks of the service ; and this includes the risk of negligence upon the part of a lellow servant, whenever he is acting in the discharge of his duty as servant of him who is the common master of both (tio)-r v. Jai/ (/', a workman employed by the defen- dant was killed by the fall of a scaffold, constructed, in the absence of the deceased, under tlie supervision of the defendant's foreman, who used an unsound pole : it was held that the defendant was not liable to an action brought by the administratrix. A licensed waterman and lighterman in the employment of a corn nicri'hant is injured by the fall of a sack owing to the care- lessness of one of the corn merchant's men in lioisting it (J) ; a miner is killed by the carelessness of an engineer vvlio does not stop a cage when it emerges from the pit, but allows it to be drawn up to the scaffold (/•) ; a workman engaged in erecting scaffolding falls and is iujured owing to the negligence of the foreman, who did not sup})ly sufficient boards (/) ; a man employed ((/) Per AldersoB, B., in Hitfchiniton v. owitig to the wuiit of light and fencing ; York, Xeircastlc and Brrwiclc Rail. Co. no breaf^h of duty shown.) This case is (1850), Ex. 343, 352. Lord Watson, o[ien to doubt. Skijjp v. Eastern Counties in Johnson v. Lindsay, [1891] A. C. 371, Hail. Co. (1853), 9 Ex. 223. (A guard 382, says : " The immuuity .... rests injured; evidence tliat the work was too upon an implied undertaking by the much for the statt of the coinp;iuy ; the servant to bear the ri.sks arising from servant had for several months acted as the po.s.sible negligence of a fellow- a giuu'd, and had made no complaint; servant, who has been selected with due no liability.) Couch v. Steel (1854), 3 care by his master." It was on the E. & B. 402. (No implied obligation cm gnjund that there was no voluntary the jjart of the owner of a ship towards undertaking to accept the ri.sks of the a seaman that the ship shall be in a fit parti(!ular employment that it was held, state to perform the voyage.) See, how- n\ Tozelandv. West Ham C/«iow, [lOOO] ever, 57 & 58 Vict. c. 60, s. 458. The 1 K. B. 538, that " common employ- master's ouussion to ship the stanc^hions ment " did not apply to the case of a and rails supplied for tlie bulwarks by pauper in a workhouse and the guar- the owncTs does not render tlie ship " un- dians' engineer. seaworthy" within the Act: llcdlei/ w. (h) (1837), 3 M. & W. 1. rinkney Steamship Co.. [1894] A. C. 222. (i) (1850), 5 Ex. 354. The action (./) Lovell v. Howell (1870), L. R. 1 was brought under 9 & 10 Vict. c. 93. C. P. D. 161. See Seymour v. Maddox (1851), 16 Q. B. (/.:) Bartonshill Coal Co. v. Eeid (1858), 326. (Action by a chorus singer against 3 Macq. 266. defendant, owner of a theatre ; the (/) Gallaylirr v. 1'i.per (1864), 10 C. B. plaintiff fell through a hole in the floor, N. S. 669. COMMON EMPLOYMENT. 281 in carpeuter's work for a railway company is injnred by the negligence of porters, who shift an engine so that it strikes the scaffold on which he stands {in) ; a sc^aman fell overboard owing to the negligence of the master in not shij)ping the bulwark stanchions and rails {n) : a member of a pantomime chorus is injured by a piece of scenery being dropped on her head (o). In all these cases the injured persons or their representatives have at Common Law no redress against the employers, on the ground that the negligence is that of fellow-servants (p). The immunity does not exist where the servant injured is, at the time of the injury, not actiug iu the service of the master (2 always ni'n/ have, and sometimes must (o) Bnrrw. Theatre Royal, Driirt/ Law, have, a servant who acts as his repre- Itd. [1907] 1 K. B. 544. sentative or alter er/o towards other ser- (p) See the cases collected in Appeu- vants ; and that for the negligence of dix B. to this chapter. such representative, while actitiy as such, {q) Hutchinson v. York, Neiccastle i|- the master is responsible to the other Berwick Rail. Co. (18o0), 5 Ex. 348, 352, servants precisely as if it were his 353_ own." — Shearman and Redtield on Set/- [r) Hutchinson v. York, %c., ibid, at ligence (5th ed.), s. 22t). See those p. 353; see Wilson v. Merry (1868), learned authors' somewhat intemperate L. R. 1 H. L. Sc. 32fi ; Johnson v. criticism of the English rule and of the Lindsay, [1891] A. C. 371, 378, per decision in Wilson v. Merrij, ibid. ss. Lord Herschell. But the master does 227-229. not warrant the competency or care of [x] (1868), L. R. 1 H. L. Sc. 326. his servants: Tarrant v. Webb (1856), See also Fcltham v. England (1866), 18 C B 797 L. R. 2 Q. B. 33 ; Howells v. Landore [s) See p. 291. Steel Go. (1874), L. R. 10 Q. B. 62 ; Cribb [t) Wilsiin V. Merry, uhi sup. v. Kynorh. [1907] 2 K B. 548. 282 MASIKUS LIAI5ILITV I'O SKKVANTS. consequence of the negligence of the chief engineer in leaving the machinery in a defective state (/y) . Tlie Courts have given a very wide signification to the terms "fellow-servant" and "common employment." Two classes of eases must be distinguished : — (1) The first consists of cases in which two persons are un- doubtedly in the service of the same master ; and the only question is whether they are engaged in common duties or are so employed as to bring them within the rule. No autliority goes so far as to say that the principle holds good between all servants employed by the same master. If a man was tenant of a farm in the country jind a warehouse in town, and if one of his farm servants liai)penod to be injured by the negHgence of a servant engaged in tin- warehouse, no one would say that the master would be freed from liability (~). A sailor on one ship is not the fellow-servant of a saihu- on another, thougli botli ships belong to the same owner (r/). But it is not necessary that servants should be doing the same or similar acts in order to come within the rule. " The di'iver and the guard of a stage coach, the steersman and the rowers of a boat," said Lord Cranworth in Barto)i.sliill Coal Co. v. Reid (b), " the workman who draws the red-hot iron from the {!/) Searle v. Livdsaij (1861), 11 0. J!. N. S. 429 ; but see Employers' Liability Act, 1880. See also Willes, J., in (Ju'l- Imjhcr V. Tiper (1864), 16 C. B. N. S. 609 ; Ilowelk V. Landore Steel Go. (1874), L. R. 10 Q. B. G'2. Ill WBi/rnv v. Bum (1S54), 16 D. 1025, a youug inexperienced girl was iujnred while removing' clay from rolld's in motion hy the orders of the defendant's manager, whose duty it was to do this operation himself : the defen- dant was lield liable. This case may be explained l>y tlie age and ignorance of the plaintiff, and the fact that it was a 8p(M;ific order of the defendant's manager which directly led to th(> injury : see the remarks of Lord Cranworth in the liar- tuHxhill case, 3 Macq. 266, 29.5. But in 1854 the Scotch Courts had not accepted the doctrine of common emplo3-ment ; and they did not apply it to the negli- gence of manw/crs till after Wilson v. Mc7-ry m 1868 : see tlie remarks of Bray, J., upon (f Byrnv'H case, in Cribh V. Kynoch, [1907] 2 K. B. 548, 553, and that learned judge's review there of the cases on this point. (z) See Bla(^kbum, J., in Morgan v. Vale of Neath Hail. Co., L. R. 1 Q. B. 149; and Pollock, C. B., in Abraham v. Reynolds (1866), 5 H. & N. 143 ; Shear- man and Redtield on Negligence (oth ed.), s. 237. The master is liable if the injury be due to a risk not incident to i.he service : Mansjieldx. liaddcley {1^16), 34 L. T. ()96 (dressmaker bitten by a savage dog) ; or if the injury result from the master's negligence: If'ar/cn v. Ifildee (1872), W. N. 87 (explosion of gas). But the above exemption exists in the event of the servant being injured while returning from work, if it be part of the contract that he is to be conveyed back, as in Tannri/ v. j][t(ll(ind Rail. Go. (1866), L. R. 1 C. P. 291. See, as to this, Lord Brougham in Brydon v. Stewart (1852), 2 Macci- 30 ; Coldrick v. Partridge, cfc. (l908).24TimesL. R. 616; also Packet Go. v. M'Cue (1873), 17 Wall. U. S. 508 (A. hired to assist in loading a boat belonging to defendant, but not in the genei'al employment of defendant. After the job was over, and he was paid, he was crossing a gangway to go ashore, and was injured by the negli- gence of defendant's servants: a ques- tion for the jury whether the relation of master and servant had ceased at the time of the injury); and see the cases collected in the notes to sect. 239, Shearman and Redfield on Negligence (oth ed.). {a) The Petrel, [1893] J'. 320. {b) (1858), 3 Macq. 266. COMMON EMPLOYMENT. 283 forge and those who hammer it into shape, the engine-man who conducts the train and tlie man who regulates the switches or the signals, are all engaged in common work " (c). The duties of two servants may have little connection, and may rarely bring them together. They may be of different grades ; thoy may belong to different departments of the same factory, workshop or establish- ment ; their occupations may lie far apart [d) ; aud thoy may be scarcely aware of each other's existence. They may be not the less fellow-servants. An engineman who controlled the motions of a cage by which a miner was drawn to the surface was held to be a fellow- servant of a miner engaged below (fi). Carpenters employed by a railway company to do carpenter's work and porters engaged in shifting a locomotive (,/') ; a miner and the uuderlooker of a mine (f/) ; a workman and a certificated manager of a colliery appointed under sect. 26 of the Coal Mines Regula- tion Act, 1872 (//) ; a labourer employed by a railway company in loading waggons with ballast and the guard of a train by which he was retui-ning after doing his work (/), have been held to be fellow-servants, so that an injury suffered by one by reason of the negligence of the other did not make the master answerable. Lord Chelmsford, in Bartomhill Coal Co. v. McGulrc (/,■), suggested that in general a satisfactory conclusion could be arrived at " by keeping in view what the servant must have known or expected to have been involved in the service which he under- takes " — a test which, looking at the authorities, is scarcely com- prehensive enough (/). In Charles v. Taylor {id) — which involved the question whether one of a gang of '' lumpers " or men engaged in unloadiug coal barges for the defendants, who were brewers, and servants of the (f) Compare remarks of Pollock, C.B., Blackburn, J., in ;1/or(/w« v. Yale of Neath in Abraham, v. Reynolds. Seen. (z),p. "282. Rail. Co., 5 B. & S. ^80 : " I think that, [d) aivdw, J., in FarU'C'll r. The JBoston whenever the employment is such as Eail. Co. See n. (/), p. 279. necessarily to bring the person accept- [e) Bartonshill Coal Co. v. Rtul. See ing it into contact with the traffic of the note (i), p. 282. line of a railway, risk of injury from (./■) Morgan v. Vale of Neath Rail. Co. the carelessness of those managing- that (1864), L. R. 1 Q. B. 149 ; M^Eniri/ v. traffic is one of the risks necessarily and Waterford Rail. Co. (1858), 8 Ir. C. L. naturally incident to such an employ- 312. meut, and within the rule." This state- (g) Hallv. Johnson (1865), 3 H. & C. ment is adopted by Jeune, P., in The 589. I'etrel, [1893] P. 320, 336, who adds (A) Howells V. Landore Steel Co. (1874), that it "implies that the skill and care L. E,. 10 Q. B. 62. of the one is of special importance to the (i) Tunney v. 3Iidland Rail. Go. (1866), other by reason of the relations between L. R. 1 C. P. 291. their services." See Shearman audRed- [k) See note (i), p. 282. field (5th ed.), s. 236. \l) The principle is thus stated by («) (1868), 3 C. P. D. 496. 284 master's LIAHIIITV TO SERVANTS. defendauts eugaged in moving barrels, were fellow-servants— the Common Pleas Division held that they were such ; and Brett, L. J., suggested the following formula : — When the two servants are servants of the same master, and where the service of each will bring them so far to work in the same place and the same time that the negligence of one in what he is doing as part of the work which he is bound to do may injure the other whilst doing the work which he is bound to do, the master is not liable to the servant for the negligence of the other. These formulae seem to show that the test is whether or not the negligence of the fellow-servant is a risk which may reasonahly be expected to be incidental to the emi)loynient. In Cnhh v. Ki/iiocJt (»), a case of injuries to a girl of fifteen years of age, suffered by reason of a forewoman negligently omitting to warn her of the dangers of her employment, a Divisional Court held that, for the purposes of the rule as to " common employ- ment," it made no difference that the employment was dangerous and the employee an infant, always supposing that the master have delegated the duty to give warning to competent persons. This decision was approved by the Court of Appeal in Young v. Hoffman Mamifncturiiuj Co., Ltd.{o), a case tiu-ning on very similar facts. (2) A second class of cases consists of those in which persons are in one respect the servants of different masters, and yet for some purposes are regarded as if they were the servants of the same master. To exempt a master there must not only be a common service or employment, but also a common master [p) ; it is not enough that the servants aro engaged in a common object but under different masters. In such cases, therefore, the question arises : Was the defendant, at the time of the injmy, common master of both the negligent and the injured persons ? In Wi{/(j('fi V. Fox{q), the defendants, who had contracted with the Crystal Palace Co. to erect a tower, made a sub-contract with M. and four other persons to do by piece particular portions of the work. The workmen of the sub-contractors were paid weekly by («) [1907] 2 K. B. o48. Bniy, J., iu IG D. 102o, iu note (y), at p. 282, supra. deliveiiiiK' the iudjfment of tho Court, r \ t i r- j rionn * /i 1 , ^? • ji.1 1 ]• [p) Johnson \. Lindsau, ri8911 A. C. eliiborately reviewed the leudiii'? cases on oi\ n i\r ^ rion.n * n , . ^ •' ° 371 ; Cameron v. ^tistrom, 1893 A. C. the point. „^„ ^ ' L J (o) [1907] 2 K. B. 646. See the **"°- remarks on 0' Byrnv v. Bum (1854), {q) (183G), 11 Ex. 832. COMMON EMPLOYMENT. 2^5 the defendants according to the time which they worked. The sub- contractors received from the defendants' foreman directions as to the execution of the piecework. The persons who contracted with the defendants to do piecework signed printed regulations, by wliicli they were not at liberty to leave their employment until after they had completed their piecework and had given a week's notice. While W., who was employed by M., one of the sub- contractors, was at work, a workman in the service of the defen- dants let fall a tool, which killed W. The jury found that W. was the servant of M. The Court of Exchequer held that the defendants were not liable, the deceased and the workman whose negligence caused the accident being common servants of the defendants. But this decision can be supported only on the ground suggested by Channell, B., in Abraham v. Rei/nokh (r), viz., that Wiggett was the servant of the defendants, being paid by them and under their control. Otherwise it is overruled by Johmon v. Lindsay («). In this connection may be mentioned Murray v. Currio (f). The defendant had entrusted the unloading of a vessel to a master stevedore ; the plaintiff, a dock labourer, was employed by the stevedore and engaged with Davis, one of the crew of the ship, in unloading, by means of one of the winches of the vessel. The plaintiff was injured through the negligence of Davis in working the winch. Davis was paid by the defendants, but his wages were deducted from the stevedore's bills. All the unloadino- was under the control of the stevedore and his foreman. The stevedore provided the labour, and he would have had to get labour elsewhere if the ship had not found men. The shipowner selected such members of the crew as were to be employed in unloading, but the stevedore selected the work for them, and had control over them. The Court thought that the defendants were not liable, on the ground that Davis was not doing the work, and was not under the control, of the defendant. The question here is, whether Davis, who caused the mischief, was employed at the time in doing Kennedy's work or the shipowner'.s. It is possible that he might have been the servant of both, but the facts here seem to negative that. The rule, out of which this case forms an exception, that (/•) (1860), 5 H. & N. 143, 149. {() (1870), L. R. 6 C. P. 24. This Chaunell, B., then Serjt., was uouusel casse turns not so much on the doctrine for the defendant Fox. of common employment as on the fact that Davis was not acting as defeudant'.s (.s) [1891] A. C. 371 ; per Lord servant; aiid it was not necessary to Herschell, at p. 379, and Lord Watson, decide that t})e plaintitf and Davis were at p. 383. fellow-servants. 286 MASTKR's LIAHILITY TO SERVANTS. a servant or workman has no remedy against his employer for an injury sustained in his employ through the negligence of a fellow- servant or work- man, is subordinate to another rule, and does not come into operation until a preliminary condition be fulfilled : it must be shown that if the injury had been done to a stranger, he would have had a remedj' against the person who employed the wrongdoer. ... It was Kennedy's work he was employed upon, and under Kennedy's control (h). Eourhr v. Ji^/nfc 3To-s.s Co. (.r) ought liere to be noticed. The defondants, owners of a colliery, were engaged in sinking a shaft, and for that pnrpose had employed among other workmen the plaintiif. After they had carried on the work for some time, they entered into a contract with one Whittle to complete the sinking. Whittle was to provide all the labour, and the company were to put at the disposal of Whittle the necessary engine and to pay the engineer's wages. Lawrence, the engineer, was employed by the defendants and paid by them. Owing to his having fallen asleep and not stopped the engine at the proper time, the plaintiff was severely injured. Both the Common Pleas and the Court of Appeal tliought that the plaintiff could not recover. In the former the decision was placed by Coleridge, C. J., Archibald, J., and Lindley, J., on the ground that both the plaint itf and Lawrence were the servants of Whittle. He (Lawrence) was originally, and may bo now, in the employment of the defendants ; but the work he had to do at the time of the accident was a necessary part of the work to be done under Whittle's contract. He was at that time working under the direction of Whittle, the working of the engine being a part of one operation, the whole of which was being done by Whittle. The ])laintiff therefore was clearly the servant of Whittle, and Lawi-ence also was in one sense the servant of Whittle, inasmuch as he was working under his orders, and subject to his control, although his wages were paid by the defendants (y). " The real cpiestion," said Arcliil)ald, J., " is wliether Lawrence was in the service of Whittle or in that of the defendant. For this purpose, I think he was in the service of Wliittle." Cockburn, C. J., put his decision on the same grounds. But the judgments of Mellish, L. J., and Baggallay, J. A., seem to go no further than deciding that at the time of the accident Lawrence was not acting as the servant of the defendants ; and it is submitted that the case does not decide that the plaintiff was the («) Per Willes, J., /. c. at p. 27. C. P. D. 205. (:r) (1876), 1 C. P D.556; (1877), 2 (y) Per Coleridge, C. J., /. r. iit p. .5/)9. COMMON EMPLOYMENT. 287 fellow-servant of Lawrence. Tn his judgment IVIellish, L. J., observes — Tlio effect of this agreement was that the whole job was lout out to Whittle, but the engine was to assist him in doing the work, and the engineer, though remaining the general servant of the defendants and paid by thorn was, while working at this shaft, to act under the control and orders of Whittle. That, in my opinion, makes the acts of Lawrence, while woT-king the engine, the acts of Whittle and not of the defendants. Lawrence's duty, accoi-ding to the orders of Whittle, was to have stopped his engine at the proper time, and not doing this, he was negligent in not obeying the orders of Whittle, and this in law amounted to the negligent act of Whittle. It follows, therefore, that the defendants are not liable ; and it is unnecessary to consider whether the plaintiff was the fellow- servant of Lawrence in Whittle's employ. Bao-gallay, J. A., thought the defendants not liable on the same ground, namely, that Lawi-enee was acting as servant to the contractor, and did not express any opinion upon the question of common employment. In Abraham v. Reynolds (s) the plaintiff, a servant of J. & Son, went to defendants' warehouse to fetch cotton for defendants, whose cotton was always carted by J. & 8on. The bales were lowered by defendants' men into a lorry, and by the negligence of one of the defendants' men a bale fell and hurt the plaintiff. The Court tlioiight the defence of common emploj-ment not open to the defendants because (according to Pollock, C. B.), though the workmen had a common object, they had separate ends and for some purposes antngonistio interests ; because (according to Martin, B.) — and this is the true ground in law — the defendants were not masters of the plaintiff ; and because (according to Watson, B.) they were " persons doing work for a common object, but not under the same control or by the same orders." In Warhiu'ton v. Great Western Rail naif {a), the Court of Ex- chequer took the view that a porter of the London and North Western llailway Company, and an engine-driver in the service of the defendants, were not fellow-servants within the meaning of the rule, though both companies used the station, which belonged to the Lond). In the subsequent case of S/rain-soii v. [z) (1860), 5 H. & N. 143. (J) Warbiirton was not the servaut of (a) (1866), L. R. 2 Y,x. W. the Great Western Railway Company. 288 MASTER .S LIABILITY TO SERVANTS. North Eaxferu Bail. Co. {(), the Court of Appeal, reversing tlie Exchequer Division, lield that an engine-driver of the defendants and a signahnan of the Grreat Northern Railway Company were not fellow-servants in the following circumstances : The station of the defendants and that of the Great Northern Company abutted upon each other and were approached by parallel lines of rails. The plaintiff was a signalman engaged and paid by the Great Northern Company and wearing tlieir uniform. But his duty was to attend to the trains of both companies. While an eno-ine of the defendants was upon the lines of the Gi-eat Northern Company, the driver negligently ran over the plaintiff. The Court held that the plaintiff and the driver were not engaged in a common employment. The law on this point has been much simplified by the decision of the House of Lords in Jo/uhson v. Lixdnai/ [d). In that case the pliiintiff was employed by IT. & II., a firm of builders : the defen- dants, who were ironfounders, were executing, under a contract with the architect, certain fire-proof portions of the houses being built by H. & H. The defendants were in no way under the con- trol of II. c^ li. A servant of the defendants negligently let fall a bucket on the plaintiff and injured him. The Llouse of Lords held tliat there was no common employment. Before this decision it would have been arguable that, r.//., the driver in Qiiannan v. Uiinicff {(') was the fellow-servant of the hirer's footman : on the authority of Woodliead v. GartncHH Mineral Co. (./') he would have been so held. But Johii.soii v. Lii/d.sa// {d) lias limited the doctrine by laying down that " unless the person sought to be rendered liable for the negligence of his servant can show that the person so seeking to make him liable was himself in his service, the defence of common employment is not open to him." On this principle the driver in Quarman v. Burnett (e) was not the fellow- servant of the hirer's footman ; this would follow from the decision in that case, which w^as that the driver was not the hirer's servant. LaH!///er v. Pointer (g) and lionr/xe v. W//ite Mo.^s Colliery Co. (//,) no longer seem inconsistent. In the former case there was no Had an engine-driver of the Great Wos- [d) [1891] A. C. 371. teni Railway Company been suing the u) (1S40), 6 M. & W. 499. L. & N. W. Railway Company for the j^^ (1877), 4 R. 469, overruled in negligence of their signalman, the joknwn v. Linchay, nbi supra. decision might have been different. ,^Qor\ i^ -R Xr r r,.? ic) mm. ■■>> Ex. D. M\. See Turner id) (^826), 5 B. & C. o47. V. Great Eastern Hail. Oo. (1875), :3;iL. T. (h) (187G), 1 C. P. D. 556 ; 2 C. P. D. 431. '^05, COMMON EMPLOYMENT. 280 evidence of such control as would make the coachman the defen- dant's servant ; in the latter case there was such control by a third person as made the engineer that third person's servant. " Com- mon employment," in English law (/), therefore means employment in furtherance of a common object in the common service of the person sought to be made liable (/.•) , and the difficulty will generally be to decide on the evidence whether the plaintiff was servant of the defendant (/). Of course if the negligent person is not the defendant's servant, the defendant will not be liable, on the grounds stated by Willes, J., in Murray v. Carrie {m). Common employment is not available as a defence to an action based upon the breach of an unqualified statutory duty («). As the reason generally given for the non-liability of a master for injuries sustained by servants through the negligence of fellow- servants is the existence of a tacit agreement on the part of the former to accept all the ordinary risks attending their service, it might seem to be proper to confine this exemption to cases in which a contract of service exists. This, however, has not been done. Volunteers are treated as if they were servants. A clerk in the employment of Messrs. Pickford, carriers, voluntarily assisted the servants of a railway company in turning a truck on a turn-table. By the negligence of one of the company's servants he was killed. Such were the main facts in Dcgg v. Midland Rail. Co. (o) ; and the Court of Exchequer came to the conclusion that the deceased by volunteering his services could not have any greater rights or impose greater duties on the defendants than would have existed if he had been a hired servant. It was urged that the plaintiff was a trespasser or wrongdoer. The cases of Bird v. Holbroolx {/)) and Lynch v. Nardin {q) were cited in support of the contention that T)Q^g, though a wrongdoer, could maintain an action. But the Court overruled this argument, on the ground ((■) The Scotch law is, by the joint [n) Graces v. Lord Wimborne, [1898] effect of the decisions in the Bartonshill 2 Q. B. 402. case (1868), 3 Macq. 266, and ininon v. (o) (1857), 1 H. & N. 773. In Clcre- Merri/ {IS68), 1 H. L. (Sc.) 326, as ex- land v. Spier (1864), 16 _C. B. N. S. plained in Johnson v. Zhidsai/, the same 399, a man working at pipes in a high- on this point as the English. See, for a way asked a passer-by for advice, which history of the Scotch decisions, Lord was adopted, as to the mode of doing Watson' 8 iii(i.gmentmJohnso>iv. Lindsay, the work. The passer-by was injnred u/)i sxp., at pp. 385—387. by the workman's negligence in doing {k) See Cameron v. Nystrom, [1893] the work. Held, that the passer-by A. C. 308; Union Steamship Co. v. was not a "volunteer assistant" so as Claridge, [1894] A. C. 185. to come within the principle of Ih(/(fs U) See pp. 12 et sqq., supra. case. bn) (1870), L. R. 6 C. P. 24. See {p) (1828), 4 Bing. 628. p. 285,\wj3»-<7. (•). There tlie plaintiff had, at the request of the defendant's servant, assisted him in putting bales of cotton into a lorry, and was injured while so doing. The Exchequer Chamljer expressed tlie opinion that Be()ff v. Midlmid Rail. Co. was well decided. Erie, C. J., in delivering the judg- ment of the Com't, said with respect to the rights of a volunteer : — Such an one cannot stand in a bettor jiosition than those with whom ho associates himself in i^esi^cct of theiv master's liability : he can impose no greater liability ujion the master than that to which he was subject in respect of a servant in his actnal emploj'. In this instance the plaintiff lent his assistance at the request of a servant who had no authority to employ (.s). But if the plaintiff has an interest in the operation at which, with the defendants' consent, he assists, it is different. Thus, when a person who had sent a heifer by rail to Penrith Station assisted in shunting into a siding, mth the assent of the station-master, the horse-box in which the heifer was, it was held that he was not a volunteer in the sense of the decision in Degg v. Midland Rail. Co., and that he could recover from the defendants for the negligence of their servants {t). lie only did for himself, with the permission of the company, what they were bound by contract to do for him. A master is responsible to his servant for injuries sus- tained by reason of the master's own personal negli- gence {it). (>•) (1861), 1 B. & S. 800. entitled to recover, though he was not ,, ., . P ,1. unloadinor in the usual way.) See also {«) In such cases the authority of the ,^. .^.^ ^^ Caledonian Bail. Co. (1871), servant may be a material pumt : see y jj_ ^gg^ ,^ ^^^^^ ^^ employment of Flower v. Fcnn.vjlvama Had. Co. S/l , ^.^^^j^ ^^.^^^j. ^^^^ engaged along with GOPa. St. 210; LHtlc y. Ackon (18.)o), ^^^^.,^^^^^ ^^ defendants in putting his 17 D. (2nd ser.), 310. master's cattle into a truck at a siding; {t) Wright V. London and North an engine, driven by one of defendants' Western Rail. Co. (1875), L. R. 10 Q. B. servants, pushed a waggon agaiust the 298; 1 Q. B. D. 252. This followed truck; defendants liable.) the previous decision. Holmes v. North {u) " For his own personal negligence Eastern Rail. Co. (1869), L. R. 4 Ex. 251 ; a master was always hablo and .still is (1871), L. R. Ex. 123. (A con-ignee liable at Common Law both to liis own of a coal waggon went to it with the workmen and to the general public who permission of the station master and come upon his premises at his invitation took some coal. Having then stepped on business in which he is concerned" : down upon the flagged way, he was per Bo wen, L. J., in Thomas v. Quarter- injured by one of the flags giving way ; onaine (1887), 18 Q. B. D. 685, 691. PERSONAL INTERFERENCE OF THE MASTER. 291 This liability is incurred chiefly upon one of three grounds : — (i.) If the master personally interfere with the work ; (ii.) If the master choose his workmen or foremen carelessly ; (iii.) If the master provide unsafe premises or defective plant or tools. (i.) Penonal Interference of the Master. In Afi/iicorth v. Stanidx i^ Walker (x) the two defendants were lessees of a coal mine and in partnership. One of them acted as banksman. A tram-plate fell down the pit and injured the plain- tiff. It was proved that the banksman's attention had been called to the loose state of the plate, and the jury found that he was guilty of negligence. The Court held that he was liable in respect of his personal negligence, and that the other defendant was liable as partner. The master is not bound to do his work himself. "He has not contracted or undertaken," says Lord Cairns in Wikon v. Merry {i/), "to execute in person the work connected with his business," but "to select proper and competent persons to do so, and furnish them with adequate materials and resources for the work." But if a master choose to do his work in person, or if he personally interfere with the execution of work, he will incm- responsibility to his servants for his own negligence. He will not be regarded as a fellow-servant because he works with them (s) . (ii.) Careless Choice of Servants. The master will be liable, not because his servants are incom- petent, but because he has been personally negligent in choosing them. " Negligence cannot exist if the master does his best to engage competent persons ; he cannot warrant the competency of his servants" {a). Thus, if the master delegate the choice of ser- vants {h), or the duty of giving instruction and warning regarding a dangerous process {bh), to a competent foreman he is not liable [x] (1861), 3 E. »& E. 701. («) Per Lord Cairns in TViUon v. / V /,n/.oN T -D 1 TT T «„ Qof iio Memj , uH sup., p. 332, approving Tar- (y) , (1868), L. R. 1 H. L. Sc. 326, 332. ^.^^^^^ ■;;_ ^^.^f j^^g^Q^^ ^^^^^ g ° ^g„ . [z] Mellors v. Shaw (1861), 1 B. & S. Smith v. Howard (1870), 22 L. T. (N. S.) 437. (One of the defendants, owners 130. (Defendant not liable to his work- of coal mines, acted personally as super- man for injuries caused by the negli- intendent ; he took no pains to make genoe of a competent foreman in not the shaft safe, though it was pointed discharging an incompetent fellow- work- out to him that it was unsafe ; defen- man after complaint made.) dauts liable to a miner injured by the {h) Smith v. Hotvard (1870), 22 L. T. fall of a stone.) Robvrls v. Smith (1857), (N. S.) 130. 2 H. & N. 213. (One of the defendants {bb) Cribb v. Ivi/noch, [1907] 2 K. B. told plaintiff to use certain logs, which 548 ; Yoiniff v. llotl'mann Maiiitfacturiiiff were rotten, to build a scaffold with.) Co., Ltd., [1907] 2 K. B. 646. tT2 292 master's liability to servants. for that foreman's negligence in engaging or retaining an unskilful workman, or in failing to warn and instruct. The fact that a person known to be without experience was em- ployed as an engine-driver, or in some other post requii'ing skill (c), or that an habitual drunkard, who was known, or with reasonable care, must have been known as such to the defendants, was placed in a position of great responsibility, would be proof of negligence {(/). No doubt, too, a master is bound to provide suffi- cient servants for the work ; though if a servant were to continue in a workshop or factory with full knowledge of this deficiency, he would be taken to have accepted the risk. In Sri.rfoii v. Jlaickes- worth (e), the evidence was that five steam engines, some of them situated apart from each other, were attended to by only two men ; one of the engines "ran away," or revolved too fast, and the plaintiff, who was a sheet roller in the defendant's works and had been such for three years, was thereby injured. The Exchequer Chamber held that, assuming the accident might have been pre- vented had more men been employed, he could not recover. (iii.) Unsafe Premises ; Defective Plant or Tools. The liability of an employer for defects of this kind, due to a superintendent's negligence, was greatly enlarged by the Employers' Liability Act, 1880 ; and in claims under the Workmen's Compen- sation Act, 1906, the liability is altogether independent of negli- gence ; but it is still necessary to enquu'e what is the Common Law. A humane employer, anxious for the safety of his workmen, would be vigilant even if they were careless, and would seek to save them from perils which they were ready to face. The Common Law, however, does not require an employer to do this. The question was considered by the House of Lords in Paterson v. Wallace (/), which was decided in 1854. This was a claim by the widow and children of a miner, who had been accidentally killed by the fall of a stone from the roof while working in a coal-pit as a servant of the defendant. The deceased man and other workmen had complained to the manager of the danger arising from this very stone ; the manager finally sent to have it removed ; the deceased (c) Shearman and Redfield on Ncgli- trial of this case in 95 Mass. 433. ^ewce {5th ed.), s.s. lUO, 191. (e)(1872), 26 L. T. (N. S.) 851; [d] Gibnan v. Juiatciii Hail. Co., 92 Skipp v. Eastern Counties Hail. Co. Mass. 233. (Evidence that defen- (1853), 23 L. J. Ex. 23. dants employed an habitual drunkard (/} Paterson's Scotch Appeals, i. 389; as switchman.) See the I'eport of the 1 Macq. 748. UNSAFE PREMISES ; DEFECTIVE PLANT OR TOOLS. 293 mau, without waiting, went to work and was killed. The Lord Justice Clerk, on this evidence, withdrew the case from the jury. Lord Crauworth laid it down tliat the plaintiff s had to establisli two propositions, viz., (i.) tliat the stone had become dangerous owing to the negligence of the master; and (ii.) that the workman was killed owing to that negligence and not because of his own rash- ness ; and he lield that there was evidence for the jury on both points. He states the law thus : — When a master employ.s a servant in a work of a dangerous character, he is bound to take all reasonable precautions for the safety of that workman. This is the law of England no less than the law of Scotland. It is the master's duty to be careful that his servant is not induced to work under a notion that tackle or machinery is staunch or secure when in fact the master knows, or ought to know, that it is not so. And if, from any negligence in this respect damage arise, the master is responsible {g). This decision, it is submitted, involves the proposition that the master cannot delegate this duty : otherwise it would conflict with Priestley v. Fowler {h) at least as that case has been understood in England {h). In BrydoH v. Stewart {i) a miner was killed while going up the shaft by a falling lump of coal or ironstone. The jury found that the pit was unsafe, and that the accident was caused thereby. It was held to be no defence that the miner was, at the time, leaving the shaft for his own business and against the employer's interest. The same question arose in 180 1 in Weems v. Mathieson (k). A workman had been injured by the fall of a cylinder which had been suspended between three shear poles by means of a chain. Lord Campbell and Lord Wensleydale pointed out that the contract of hiring implied no warranty of the perfect character of the machinery ; and the former was careful to say that to make the defendants liable it must be shown that the weakness in the glands or bolts used in hoisting the cylinder " did not arise from any inherent secret defect, and that it was known, or might by the exercise of due skiU and attention have been known, to the defendant, who was the employer of the deceased." " I take it to be perfectly clear," said Lord Wensleydale, " that in these cases there is no warranty. All that the master is bound to do is to provide machinery fit and proper for the work, and to take care to ig) Ibid.lb\. aee -p. 297, infra. (h) See Lord Cranworth's remarks, (i) (1855), 2 Macq. 30 ; 1 Pat. 447. and note («), on p. 751, 1 Macq. And (/.) 1 Pat. 1044; 4 Macq. 215. 294 master's liability to servants. have it superintended by liimself or his workmen in a fit and proper manner " (/). This liabiUty was extended in Smith v. Baker {m) to a defective system of working sound machinery. It does not appear to me to admit of dispute that, at Common Law, a master who employs a servant in work of a dangerous character is bound to take aD reasonable precautions for the workman's safety. This rule has been so often laid down in the House by Lord Cranworth and other noble and learned lords, that it is needless to quote authorities in support of it. But, as I understand the law, it was also held by the House, long before the passing of the Employers' Liability Act (43 & 44 Vict. c. 42), that a master is no less responsible to his workmen for personal injuries occasioned by a defective system of using machinery, than for injuries caused by a defect in the machinery itself. In Sword v. Cameron (n) the First Division of the Court of Session found a master liable in damages to a quarryman in his euqdoy- ment who was injured by the firing of a blast before he had time to reach a place of shelter, although it was proved that the shot was tired in accordance with the usual and inveterate practice of the quarry. That case was cited in Bartonshill Coal Go. v. Reid (o) in support of the proposition that the doctrine of collaborateui- was unknown to the law of Scotland ; but Lord Cranworth pointed out {p) that the decision did not turn upon the negligence of the fellow- workman, who tired the shot, and expressly stated that it was justi- fiable on the ground that " the injury was evidently the result of a defective system not adequately protecting the workmen at the time of the explosions." The Lord Chancellor expressed the same view in Bartonshill Coal Co. v. McGuire (7). The judgment of Lord Wensleydale in Weevis v. Mathieson (r) clearly shows that the noble and learned lord was also of opinion that a master is responsible in point of law not only for a defect on his part in providing good and sufficient apparatus, but also for his failure to see that the apparatus is properly used (s). And Lord Hersehell, in the same case (f), says : — It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide (/) A master is not bound to supply bility, always supposing that the work- his workmen with a complete set of all meu are in as good a position to judge the most lately invented and most highly as himself. This is the American rule, finished tods. The point is thus stated See Seven's Negligence in Laio (2nd ed.), in an American case: the machinery 763; and see iijrf. pp. 740-1. must be "such as is ordinarily used by («;) [1891] A. C. 325. (Stones were persons in the same business and such jibbed over the plaintiff's head by meu as can with reasonable care be used working in another department over without danger to the employe ": Avhich the plaintiff had no control.) Lrhiyh Coal Co. v. Haiies, 128 Pa. St. (m) (1839), 1 Se, Sess. Gas. (2nd ser.), 294; 15 Am. St. R. 680. Mr. Beven 493. suggests, and with reason, that with (0) (1858), 3 Macq. 266, 273. regard to ropes, buckets, &c., and all [p) I. c. 289-90. the commoner appUances of industry, [q) (I808), 3 Macq. 300, 310. when a master has supplied a stock of [r) 1 Pat. 1044; 4 Macq. 215. them together with the means of repair, (.s) Per Lord Watson in Siuilh v. he can leave the matter to the work- Baker. [1891] A. C. 325, 363. men's judgment, without fear of lia- (<) Ibid. p. 362. UNSAFE PREMISES ; DEFECTIVE PLANT OR TOOLS. 295 proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unneces- sary risk. Whatever the dangers of the employment which the employed undertakes, amongst them is certainly not to be numbered the risk of the employer's negligence, and the creation or enhancement of danger thereby engendered. A master is plainly liable when he knowingly fails to supply the plant reasonably necessary for the workman's safety (f) ; or when, as in Willicom v. Clough {h) and lioberU v. Smith (x), he supplies articles for use by his servants knowing them to be unsafe. Igno- rance is not, however, always an excuse. The master may be under " a duty to know " ; he may be liable for neglecting the means of knowledge. In Murphy v. Phillips {//) it was proved that the plaintiff, a stevedore in the defendant's service, was injured by reason of the breaking of a chain belonging to the defendant's ship. The chain was worn ; it had been in use for seven years, and it had not been tested in the usual way during that time. The jury found that the chain was not in a fit state for the work ; that the defendant did not know of the defects in the chain ; but that he might have discovered them had he chosen to examine it. In these circumstances, though he took no part in the work, he was held to be liable. " He might," said Cleasby, B., " have appointed a fit and competent person expressly to super- intend and see to the examining and testing of the chain, and had he done so he would of course have been himself exempt from liability ; or he might have examined the state of the chain him- self." So in Wehbe v. Rennie (s) a scaffold-pole had remained, unexamined, in the earth for two years, and had rotted : the master was held liable for injuries caused to his workman by the breaking of the pole. The servant had a right to exj)ect that he shall only be exposed to the ordinary risks of the emplojTneiit, and that the machinery or apparatus about which he is to be employed, and out of which danger arises, shall be attended to with reasonable care, to insure it being in a fit state to be worked without undue or extraordinary danger to those employed in or about it ; and although in general an employer was not liable unless he knew of the {t) Willinms v. Birmingham Battery knew or ought to have known of the and Metal Co., [1899] 2 Q. B. 33H. condition of the bolt, there was eAadence [ti) (1858), 3 H. ifc N. 258. of ueg-liu-euce on their part" ; and dis- [x) (1857), 2 H. & N. 213. tiugiiishes that case from Murphy v. [ij) (1870), 35 L. T. (N. S.) 477. In PhiUips, on the ground that there was Hanrahan v. Ardi/aiiiuH, iSi-c. (1887), 22 no evidence as to the defendant's duty L. R. I. o5 - case of a defective bolt — in the circumstances to inspect. Palles, C. B., says : "If the defendants (sj (18(35), 4 F. & F. 608. 296 master's liability to servants. danger, yet it was his business to know if, by reasonable care and precau- tion, ho could ascertain whether the apparatus or machinery were in a fit state or not. It was not enough, therefore, that the master did not know of the danger if, by reasonable care, he might have known, and if, reasonably, he ought to have known, and to have taken the proper means of knowing {/ and Metal Co. (r) the employers had knowingly failed to supply certain plant, and so exposed their workmen to unnecessary risk. The jury found, inter alia, that the deceased workman had the same means of knowing of the danger as the defendants {d). It was argued that this finding, in view of the decision in Griffiths v. London, 8^c. Docks, entitled the defendants to judgment. The Court of Appeal thought not. This is not the case where a master has pro\"ided proper appliances and done his best to maintain them in a state of efficiency, in which case the man has no action against his master if the appliances became unsafe whereby the man has been injured, unless he avers and proves that the master knew of their having become unsafe, and that the man was ignorant of it : Griffiths V. London and St. Katharine's Docks [c). {a) Ibid., per Cockbum, C. J., p. 612. [d) See per Bramwell, B., in WiUiamn See VaiKjhan v. Cork c^- Your/halJiail. Co. v. Clouffh, 3 H. & N. 258, 2G0. (18G0), 12 Ir. C. L. R. 297. (Plaintiff, (e) Per A. L. Smith, L. J., ilnd. while working for the defendants, p. 343. There is no hint of any such injured by the fall of a wall which had limitation in the judgments in Grijfiihs become ruinous, and which was " in the v. London, S;c. ; and see the remarks of possession and under the control and Bramwell, B., in Jl'illiaiiis v. Clotigh, domiuion of the defendants.") 3 H. & N. 258, and Bynen v. Leach, 2G L. J. Ex. 221 ; baton any other footing, [b] (1884), 13 Q. B. D. 259. See Murplnj v. Fhillips and Wcbhev. Rcnnic Davies v. England (1866), 33 L. J. Q. B. are inexplicable. In Groves v. Fii/lcr 321. (Plaintiff injured by cutting up (1888), 4 Times L. R. 474, the defective diseased carcases for defendant, who boiler had been overhauled by an ad- knew, while jdaintitf did not know, of mittedly competent engineer. The the disease : defendant liable. Two tendency of the cases is to extend the counts, not alleginf; knowledge by the master's liability, and, at any rate .since defendant, held bad.) ' Smifh v. Baker, [1891] A. "C. 325, to regard the knowledge of the plaintiff (e) [1899] 2 Q. B. 338. And see the merely as an element in the defence of remarks of Cockbiu-n, C. J., in Wcbhcv. '■^volenti non fit injuria'''': Williams v. Rennie, quoted above. Birniiuyhani Battery, ^c., ubi sup. UNSAFE PREMISES ; DEFECTIVE PLANT OK TOOLS. 297 The master's duty to his servant as to the safety of his premises (./') is the same as that owed by an occupier of property towards any member of the public coming, by invitation, express or implied, on his premises on business of common interest {ij). He must " use reasonable care to prevent damage from unusual danger, which he knows or ought to know " (A). It was, at one time, not quite clear whether the master could dele- gate these duties as to plant, premises, and the choice of servants. Fater- son V. Wallace {i), as has been said, seems to involve the proposition that he cannot do so; otherwise the defendant in that case would have escaped liability on the ground of common employment ; for it was the manager who was in fault {k) . So does the language in some of the judgments in Holmes v. Clarke (/) ; but that decision has been frequently criticised, and is unsatisfactor}'- in view of the diversity of grounds underlying the several judgments {m). But some remarks of Byles, J., in that case should be noticed : — Wliy may not the master be guilty of negligence by his manager or agent, "whose employment may be so distinct from that of the injui-ed servant, (/) Paterson v. Wallace (1854), 1 Macq. 748; Brydon v. Stewart (1855), 2 Macq. 30; Mellors v. Shaw (1861), 1 B. & S. 437 ; Brown v. Aecrinqton Cotton Co. (1865), 3 H. & C. oil ; Felt- ham \. England (1866), L. R. 2 Q. B. 33. [g) Except in so far as the contract of hiring and service implies a special ac- ceptance of risk. (A) Indermaur v. Barnes (1866), L. R. 1 C. P. 274, 288, per Willes, J. His duty is independent of contract. See, for other instances, Holmes x. North Eastern Rail. Co. (1869), L. R. 4 Ex. 254; L. R. 6 Ex. 123; Miller v. Han- cock, [1893] 2 Q. B. 177. This liability also arises out of the use of movable property: Heaven v. Pender (1883), 11 Q. B. D. 503 (a dock company liable to painters for the condition of a paint- ing-stage supplied for the painting of a ship in their dock) ; Elliott v. Hall (1885), 15 Q. B. D. 315 (seller of coals liable for defective truck, in which the coals were sent, to purchaser's servant) ; Marmy v. Seott, [1899] 1 Q. B. 986 (charterer liable to stevedore's man for allowing him to use defective ladder ; charterer had not made any inspection of the ship ; slight inspection would have shown the defective state of the ladder. ' ' A man who intends that others shall come upon property of which he is the occupier for purposes of work or busi- ness in which he is interested, owes a duty to those who do so come to use reasonable care to see that the property and the appliances upon it, whicli it is intended shall be used in the work, are fit for the purpose to which they are to be put, and he does not discharge this duty by merely contracting with com- petent people to do the work for him. If the parties with whom he so contracts fail to use reasonable care, and damage results, the occupier still remains liable : ' ' per Bigham, J.) In Moichray v. Merry- weather, [1895] 1 Q. B. 857, and 2 Q. B. 640, a firm of stevedores sued a ship- owner for breach of warranty in sup- plying a chain not reasonably fit for the purpose of discharging the cargo. A servant of the plaintiffs was injured by using the defective chain and had sued the plaintiffs, who paid him 125/. Held : — that the plaintiffs could recover that sum from the defendants. (i) (1854), 1 Macq. 748. {k) It may be said that the point in that case was whether the carelessness of the workman himself caused his death. But "common employment" was present to Lord Cranworth's mind ; see his remarks /. c. p. 751 ; and see Beven's Negligence in Law (2nd ed.), p. 738. (l) 6 H. & N. 349 ; 7 H. & N. 937. {m) E.g., (1) Statutory hability (see per Bowen, L. J., in Thomas v. Quarter- maine, 18 Q. B. D. at p. 696) ; (2) per- sonal negligence of the master ; (3) liabiHty of master for his manager's acts. 298 master's liability to servants. that they cannot -witli propriety be deemed fellow-servants? And if a master's personal knowledge of defects in his machinery be necessary to his liability, the more a master neglects his business and abandons it to others, the less will he be liable. The distinctiou between a manager and a fellow-servant sug- o-ested in the earlier part of this passage cannot be supported, at any rate since the decisions in Wikon v. Mcrri/ {n) and Hoh-oIIh v. Landorc Siemens Steel Co. {o), while the latter part overstates the point at issue. The master's personal knowledge is not necessary ; he has, in certain circumstances, a " duty to know." But how can that duty be better discharged than by the appointment of a competent overseer ? The rule of English law seems to be this : — These duties, primarily personal to the master, as to the main- tenance of the safety of premises and of the soundness of plant and machinery, and that machinery's proper use, may be delegated by the master, in which ease he will only be liable on proof that (1) the person to whom they were delegated is incompetent, and that (2) the master did not take due care in the choice of that person. What the master is, in my opinion, bound to his servant to do in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and furnish them with adequate materials and resources for the work (^O- Of course the incompetence of the person selected may be such as to raise a presumption, though a rebuttable presumption, of neo-ligcnce in the selection (q). The performance of an absolute statutory duty cannot be delegated {>•). Corporations as such cannot interfere personally, and must always act by servants. Does that fact make any difference ? Apparently not. They are, for the purposes of the liability now under consideration, in the same position as any other master (.s). In A//en v. Nen- Gas Co. {f) the {«) (1868), L. R. I H. L. Sc. 326. Allen v. New Gun Co. (1876), L. R. 1 (o) (1874), L. R. 10 Q. B. 62. Ex. D. 251. [])) Per Lord Cairns in TFihuu v. (r) Groves v. jrimboriie, lists'] 2 Q. B. Merry, iihl sup., at p. 332. 402. (q) As to choice of servants, see (.s) Seethe remarks of Blackburn, J., Tarrant v JFcbb (1856), 18 C. B. 797 ; arguendo in Hoivelh v. Landorc, c^c, Ormond v. Holland (1858), E. B. & E. L. R. 10 Q. B. 62, 63. And see Fen- 102: Umith v. //owtfrrf (1870), 22 L. T. hallow v. Mersey Docks, S;c. (1861), 30 (N. S.) 130. As to soundness of plant L. J. Ex. 329, where, however, it was and materials, their inspection and assumed that the negligence of the de- maintenance, Wiymorc v. Jay (1850), fendants' servants was the defendants' 5 Ex. 354 ; Wehb v. Rcnnie (1865), 4 negligence, and the real question was F. & E. 608 ; Murphy v. rhillips (1876), whether an averment of negligence could 35 L. T. (N. S.) 477. As to safety of be supported by evidence of nothing premises, Feltham v. England (1860), more than neglect of the means of know- L R. 2 ti. B. 33 ; Brown v. Arciington ledge. Spinning Co. (1865), 3 H. ic C. 511 ; {t) (1876), L. R. 1 Ex. D. 251. This master's liability to servants. 299 defendants were held not liable on tlie ground that incompetence of the defendants' foreman was not proved, and that the negligence, if any, was that of the plaintiff's fellow workmen. In America the rule is different. There the Courts treat a servant, when representing the master and while acting as such representative, as a vice-principal, for whose negligence the master remains liable (»). A servant has no cause of action against his master (1) if he is injured by risks, which he has agreed, expressly or by implication, specifically to accept; or (2) if liis own negligence have contributed to the injury of which he complains. (1) In the early cases there was a confusion between acceptance of risks and contributory neghgence — a confusion dispelled by the decisions in Thomas v. Quartennai'ne {x) and Smifh v. Baker {ij). There has been a change in the character of the decisions as to the application of the first of these defences. For a time the Courts applied the maxim voknti non fit itijuria, as if it were equivalent to scienti non fit uijuria. A servant who chose to work with full knowledge that the machinery or plant which he used or the place ui which he worked was dangerous, could not recover in the event of his being injured. Grifflths v. Gidiow (s) illustrates this view ; and the arguments for it are stated, with his customary clearness, by Lord Bramwell in his dissenting judgment in Smith v. Baker (a). But the later cases have made it clear that mere knowledge of the risks or dangers to be encountered is not equivalent to acceptance of such risks. is ;in unsatisfactory decision. See the doctrine of volenti non fit injuria stands discussion in Seven's Negligence in outside the defence of contributory neg- Law (2nd ed.), 78(5, 787. ligence and is in no way limited by it." {it) See Shearman and Redfield on .... " Contributory negligence arises Negligence (oth ed.), s. 226. And see when there has been a breach of duty ibid., s. 231 ; and Crispin v. Babbitt on the defendant's part, not when ex (1880), 81 N. Y. 516, on the question as hypothesi there has been none: " per to who are vice-princiisals and when a Bowen, L. J., ibid., at p. 697. See servant acts as such. The principle Osborne v. London ij- North Western Rail. seems to have been very largely accepted Co. (1888), 21 Q. B. D. 221. in the different States. See Shearman {y) [1891] A. C. 325. and Redfield, s. 232, and the cases col- [z) (1858), 3 H. & N. 648. lected in the notes on ss. 232-233a, i6ifi?. («) [1891] A. 0. 325, at p. 341, et {x) (1887), IS Q. B. D. 685. "The a*/'^. 300 master's liability to servants. In order to defeat a plaintiff's right by the application of the maxim rolicd on, who would otherwise be entitled to recover, the jury ought to bo able to affinu that he consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself (?*). Tlio application of the maxim is not difficult where the injury arises out of risks necessarily involved in the work undertaken by the pliiintilf. "A person who is engaged to perform a dangerous operation takes upon himself the risks incident thereto " ((•)• In such cases there is no breach of duty on the part of the master ; and, apart from further evidence, the plaintilf would have made out no case. Even where there has been a breacli of duty, this defence may be available ; upon proof of the facts necessary to constitute this defence, the breach of duty becomes one of which the plaintiff has, in view of those facts, disentitled himself to complain. " The duty reaches its vanishing point " {d). Mere knowledge on the part of the plaintiff, as has been said, is not sufficient ; " but when it is a knowledge under circumstances that leave no inference open but one, viz., that the risk has been voluntarily encountered, the defence seems to me complete " (p) . It is at this point that the difficidty arises. For example, an employe observes an element of dano-er in his work and complains, but is induced to remain by his master's promise to remedy the defect. This man stands in a very different position from one who has never complained ; though conceivably long acquiescence after complaint made might go to show that he accepted the risk (,/'). Often it is argued that the plaintiff was compelled to accept the risks ; he was poor ; he was afraid of being dismissed ; he had no other employment open to (b) Tcr Lord Halsbury iu i>»nth v. think that accurdiug to the autlioiities Badr, [1891] A. C. 325, 338. Compare he ought 1o bo regarded as volms.'' this with Membenj v. Great Western ^^^^ p^^. Bo^ve^^ l_ j.^ jn Thomas v. Rail. Co. (1889), 14 A. C. 179. Quartermaine (1887), 18 Q. B. D. at p. (c) Per Lord Hcrl^chell ni Smith v. gg_. Baker, I.e., at p. 360, who gives as an ', ', t> t3 t t -^-j *■ ro7 ^stance, " one\h.. l.as agreed to take {^) ^^r Bowen, L. J., ^b^d., at p. C97. part in an operation necessitating the (./) Holmes v. Clarke (1861), 6 H. & production of funics injurious to health." N. 349 ; Holmes v. Worthington (1861), And Lord Watson {(hid., p. 367) in- 2 F. & F. 533. In Yarmouth v. France stances those cases where the risk arises (1887), 19 Q. B. D. 647, Lopes, L. J., " from a defect rii a machine, which the regards the i)laintiff"s repeated com- servant has engaged to work, of such a plaints as "evidence of his thorough nature that his personal danger and appreciation of the risk he was incuning consequent injury must be produced by and of his willingness to incur that risk his own act. If he clearly foresaw the rather than relinquish his employment." likelihood uf such a result, and, not- But see the judgments of Esher, M. R., withstanding, continued tu work, I and Lindley, L. .J. VOLENTI NON FIT INJURIA. 301 hini(^). Wood Icy v. Mctropo/ltd)! Rail. Co. {//) is a case in point. The plaintiff was a workman in the service of a contractor em- ployed by the defendants, and set to work in a dark tunnel at a point where the line curved and trains frequently passed. After working for a fortnight, the plaintiff was knocked down by a passing train and injured. The jury found tliat the defendants had been guilty of negligence in not taking iiny measures to warn the plaintiff of the approach of trains. The Court of Appeal, by a majority of its members, reversed the decision of the Exchequer, and ordered judgment to be entered for the defendants on the ground that the plaintiff had consented to accept the risks incident to his employment. The workman who depends on his employment for the bread of himself and his family is thus (i.e., when masters are careless) tempted to incur risks to which, as a matter of humanity, he ought not to be exposed. But looking at the matter in a legal point of view, if a man, for the sake of the employ- ment, takes it or continues in it with a knowledge of its risks, he must trust to himself to keep clear of injury {i). This view, according to which knowledge is equivalent to consent, and which was enunciated by Lord Bramwell in Sui/'f// v. Baker (/.■), was not adopted by Mellish, L. J., in WoodJei/s case (//), and it is contrary to the principle laid down by the House of Lords in Smith V. Baker {k). In that case the plaintiff had been employed by railway contractors to drill holes in a rock cutting near a crane worked by men in the employment of the contractors. The crane was used to jib stones over the plaintiff's head and sometimes without warning. He had been employed for some months and was aware of the danger to which he was exposed. The County Court jury found infer alia that the defendants were guilty of negligence, and that the plaintiff did not undertake a risky employ- ment with knowledge of its risks. Refusing to disturb the findings of the jury, the House of Lords held that the maxim volenti noii fit injuria did not apply. {g) Thrmnell v. Handyside (1888), 20 [k) [1891] A. C. 32.5. Lord Herschell Q. B. D. 3.59; but this decision followed (at pp. 365, 366) criticizes Thomas v. the judgment of a Divisional Coxu't in (iuartcrmaine [ubi sup.), and states that Mcmbery v. Great Western Rail. Co., that case assumed a breach of duty uii which was subsequently reversed both the part of the defendant. But the in the Court of Appeal and the House ratio decidendi in that case was, in the of Lords (1889), 14 A. C. 179. words of Bowen, L. J. (/. c., at p. 699), l^Q^^t\ T T? n 'isA that " there was no evidence of negli- (A) (18^7), 2 ihJL. U. ci»4. ggj^^jg ^^ ^j^-^jj ^Yie County Court judge ()•) Per Co(nd)urii, C J., I.e., p. 389. could act." 302 master's liability to servants. "When, as is commonly the case, his acceptance or non-acceptance of the risk is left to implication, the workman cannot reasonably be held to have undertaken it, unless he knew of its existence, and appreciated or had the means of appreciating its danger. But assuming that he did so, I am unable to accede to the suggestion that the mere fact of his continuing at his work, with such knowledge and appreciation, will in every case necessarily imply his acceptance. Whether it will have that effect or not depends, in my opinion, to a considerable extent upon the nature of the risk and the work- man's connection with it, as well as upon other considerations which must vary according to the circumstances of each case(?). Evidence that the danger was misrepresented, or of the plain- tiffs tender age {m), inexperience (//), or, it would seem, defective intelligence («), would tend to raise an inference of non-apprecia- tion of the risk, and render tlie maxim inapplicable. The maxim does not apply exclusively to employer and em- ployed (y)"), and. the materiality of the relations of the parties is this — that by reference to them must be determined the nature and qKanttim of the duty, the breach of which is alleged by the plaintiff. Where the master is under a statutory duty to take precautions the position is different. The plaintiff comes into Court with a stronger prima facie case, and the defendant has to prove more to raise a presumption of acceptance of risk than in the case of a duty at Common Law. In Britton v. Great Western Cotton Co. (g), a workman was fatally injured owing to the omission on the part of the defendants to fence a wheelrace, as requu-ed by the Factory Act (7 & 8 Vict. c. 15), s. 21. The defence was volenti non fit itijuria. Bramwell, B., in tlie com'se of his judgment says : — Here the plaintiff is not placed in the dilemma which arises when the action is for a breach of duty at Common Law. That dilemma is this : either the danger was obvious or it was not. If obvious, the servant must have known it as well as the emploj'er ; if it was not obvious, there was no negligence in the employer. That dilemma is not in the plaintiff's way here, for the duty is a statutory one. If the deceased dispensed with the perform- {l) Per Lord Watson, ibid. p. 355. Case, 3 Macq. 294, and of Lord Chelms- Sec per Lord Halsbury, /. c. p. 338; ford, ibid, at p. 311. and Lord Herschell, at pp. 361, 362 : (o) Per Bowen, L. J., in Thomas v. and see JFilHains v. BiriiiDigham Battery Qtiartermainc, nbi supra, at p. 696. and Metal Co., [1899] 2 Q. B. 338. (;y) Per Lord Herschell in Smith v. (;«) Grizzle v. Frost (1863), 3 F. & F. Baker, nbi supra, at p. 360. 623. (r for an indemnity in case of loss by the negligence of each other.' " The doctrine was clearly laid down in America, in 1842, in Fnnvell v. Jioston and Worcester Cor., 4 Met. 49. The first English case in which it is distinctly stated was llittchitifton v. York, Nevx'ostJe awl Berwick Rail. Co., 5 Ex. ."343, decided in May, 1850. The doctrine has never been applied except to acts of negligence, and the like. It is clear that it has no ap])lication to risks which are not incidental to the ser%'ice (see Mansfield v. Jiaddeley, 34 L. T. G96) : and to render it ajjplicable there must be a common master; Johnson v. Lindsay, [1891] A. C. 371. APPENDIX. 307 APPENDIX B. 2'he fallowing arc the chief cases as to Common Employment : Fellow-Servants. niifrliiiisoii V. YorJx' and Neii'castle Rail. Co. (1850), 5 Ex. 353. (Servant of defendants and engine-driver of train in which lie was riding in discharge of his duty.) (See pp. 280, 281.) Wiqinore v. Jay (1850), 5 Ex. 343. (See p. 280.) W-igqett v. Fox (1856), Ex. 832. (See p. 284.) D<;i. o-14. (See p. 281.) Not Fellow-Seuvaxts. Vase V. Lancashire and Yorkshire Bail. Co. (1858), 2 II. & N. 728. (Plaiutiff, representative of deceased, who was in service of East Lan- cashire Eailway Company, and, while at work in a station in the joint occu- pation of that company and the defendant company, was killed hyan enjiine belonj?ing to the latter, which was beinj^: shnuted. The persons (^mployed in shuntini? joint servants of the two companies, but the engine-driver and the ])ersons employed in the same way as the deceased were separate servants. The accident occasioned bv defects in the rules of the station.) Abraham v. Reynolds (INGO), o H. & N. 14;5. (See p. 287). Flefcher v. Pefo (1862), 3 F. & F. .'iOS. (Plaintiff engaged by wharfinger to land bags of guano and carry them to warehouse to be pibnl there by day- labourers ; ])laintiff injured by the fall of some of the bags, which had been negligently piled. The jurj' held that the plaintiff was engaged in separate work from that of defendant's men.) Cleveland v. Spier (1864), 16 C. B. N. S. 399. (A mere passer-by was asked by a workman to give information as to mode of making a hole in a gas-pipe; not a volunteer assistant, within Deqg v. Midland Rail. Co.) WarhnrUm v. Great Western Rail. Co. (1866), L. E. 2 Ex. 30. (I'laintiff, a porter in the service of the London and Noi'th-AVestern Eailway Company, at their Manchester station, which was used by the defendants' company, injured by the negligence of an engine-driver in the service of the defen- dants' company ; the defendants' servants, when within the station, were subject to the rules of the Tjondon and North-W(>stern Pailway (\)m2)any. Defendants liable.) Smith V. Steele (1875), 44 L. J. (i. B. 60. (Pilot engaged by defendants under the compulsory clause of Merchant Shipping Act, 1854, and ship- owner's servants.) Turner v. Great Eastern Rail. Co. (1875), 33 L. T. 431. Wri).) Holmes V. Clarke (1862), 31 L. J. Ex. 356. (See p. 297.) WtitJivfjy. 0«s/.■ v. Morgan Triggs V.Lester (1866), L. R. I Q. B. (18=^8)- ^ M. & W 2,0 (sending a 259 mare to a farmer to be covered by a '/"^v ,,o-.^\ . -D- OA , *• -n * stallion not within farmer's ordinary (/) (1827), 4 Bmg. 84 (action will not ^.^^^.. . ^^^,.,,,„, ^_ Williams (1824), 3 lie upon a contract made and completed -g ^ '^' ^32 (A. not knowing that B. on a Sunday). ^^^ ^ horse-dealer, made a verbal [g) Rex V. Whitnash (1827), 7 B. & C. bargain with him on a Sunday for 696. purchase of a horse ; assuming the con- (A) Peatev.Dieken{U34),lG.'M.&R. tract to be void, the purchaser was 422 ; Norton v. Powell (1842), 4 M. & G. ignorant of the fact that the vendor was 42 (the giving by one tradesman to exercising his ordinary calling on the another tradesman of a guarantee for Sunday ; the former was therefore en- the faithful services of a traveller is not titled to recover the price for breach of an act done in his ordinary calling). warranty). SUNDAY OBSEKVANCE. Only one pemilty can be incurred in the course of a day (/.). In some American cases it has been held tliat if a master forces a servant to labour on a Sunday it is a good cause for leaving the service (/). This would appear to be the ease here also. In a Scotch case {m), the House of Lords hiid it down that an apprentice to a barber, who was bound not to absent himself from his niastt^r's business on holidays or weekdays, late hours or early, without leave, and who went away on Sunda3''s without leave, and without shaving his master's customers, could not be lawfully requii-ed to attend his master's shop on Sundays ; the ground of the decision was that shaving was not a work of necessity or mercy ; and the words of the Scotch statute are wider (ii). The Brea.l Acts of 1S2'2 (o) and 188G (/;) forbid the baking and restrict \\ithin certain hours the sale of bread, &c. on Sunday. (/fc) CreppsY. Burden (1770), 2 Cowp. other servauts mii:/zi.i:Mi:N'r acts. 315 or by tho oath or affirmation of any other credible witness or witnesses, or by the confession of tho person or persons charj^eil with such offence, before any one or more(c) justice or justices of the peace of the county, ridinj;, division, city, liberty, town or place where such offence shall bo committed, or where tho person or persons so charged shall reside or inhabit (which oath or affirmation the said justice or justices is and are hereby empowered and required to administer), it sliall and may bo lawful to and for the said justice or justices, by warrant under liis or their hand and seal or hands and seals, to commit the person or persons so convicted to the House of Correction, or to be com- other public prison of such county, riding, division, city, liberty, town or mitted. place ('/) Section 2. " That if any person or persons shall buy, receive, accept, or Persons con- take, by way of gift, pawn, pledge, sale, or exchange, or in any other victed of •^ '„ T-i iii buvnis, and forfeitures are by the said last mentioned Act declared to extend to the sevi'ral and respoctiv(^ persons therein named " ((/). Persons pawninyr, kc. any such materials as aforesnid, liable to same punishment. How justices to proceed, &c. 17 GEO. III. c. 56 (1777). An Act for (tmchdiiii/ (tnd rni(li'riii(j inorr cffcfhiul tlw scrcnd Anr.s now in bem(/,/or the more fff,rti(al jjreirntin;/ of frauds and abuses by persons employed in the nidnnftdiire of hats, and in the woollen, linen, fustian, cotton. Iron, leather, fnr, hemp, flax, medueir, anil «///,• niann/dctnres ; and aho for in•) as is by this Act directed in resjiect to persons taking in any of the said material in order to work uj), and after- wards wilfully neglecting or refusing the performance of their work for the space of time aforesaid." Section 10. "It shall and may be lawful for any two justices of the peace Justices may of any county, riding, division, city, liberty, town, or place, upon comi)laint g™"* 'i made to them, upon oath by any one credible person, or (being of the people fjearchiu"- called Quakers) upon solemn affirmation, that there is cause to suspect that any such piu-loined or embezzled materials, whether mixed or unmixed, wrought or unwrought, are concealed in any dwelling-house, outhouse, yard, garden, or other place or places (/), by virtue of a warrant under their hands and seals, to cause every such dw<>lling-house, outhouse, yard, garden, (i) See 22 Geo. II. c. 27, s. 7. As to (/) A warehouse occupied only for power to reduc(> penalties, 38 & 39 Vict. business purposes and not within the c. 86, s. 8, and the Summary Jurisdic- ,., £ i n- i, • -^.i • A t m"0 ■ 4 curtiiago or a dwelling-house, is within (A:) See as to reduction of penalties. the Act : Queen v. Edmumhon (1859), 42 & 43 Vict. c. 49, s. 4. 2 E. & E. 77. 318 TITE RMRKZZLEMENT ACTS. Peace officers iu towns corporate, &c. may apprehend all persons sus- pected, &c. Owners may enter to inspect their materials. or place to be searched in thn claytime : and if any such {m) materials suspected to be purloined or embezzled shall be found therein, to cause the same, and the person or persons in whose house, outhouse, 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 h(>reinafter mentioned, although no proof shall be given to whom such materials belong." Section 11. " That every peace officer, constable, headborough, or tything- mau, in every county, city, town corporate, or other place, where there shall be oflBcers, and every beadle within his ward, parish, or district, and every watchman, during such time only as he is on his duty, shall and may apprehend or cause to be apprehended, all and every person or persons who may reasonably be suspected of having or carrying, or anyways conveying, at any time after sunsetting, and before sunrising, 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 appre- hended ; and if the person or persons so apprehended in conveying any such materials 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 delivery 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 mis- demeanor, and be punished in manner hereinafter mentioned, although no proof shall be given to whom such materials belong." Section 15. "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 reasonable hours in the daytime, into the shops or outhouses 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 condition of such materials : and in case of refusal, by any such person or persons so emploj'od, to permit such entrance or inspection, he, .she, or they so refusing, shall forfeit and pay such sum of money, not exceeding fortj- shillings, nor less than ten shillings, as the (m) "'Such' does not appear to be applied to the circumstances ; but to the nature of the article." " The offence aimed at is the possession of goods, suspected to be purloined, with- out being able to give a satisfactory account of them " : and it does not matter that the materials were not f(mnd concealed in dwelling-house, out- house, &c., or in the execution of a search warrant. Queen v. Wi/cock. (1845), 7 Q. B. 317 ; Davis v. A^'esf. (1833), 6 C. & P. Ifi7. hi) The conviction need not allege the defendant's knowledge of the goods having been purloined : In re Boothroyd (1846), 15 M. & W. I. THE EMnrZZLKMENT ACTS. aio justices, before whom he, she, or they shall be convicted shall think proper, to bo recovered and applied in the same manner as is by this Act directed for the misdemeanor of bein,^ linen, hempen, or cotton yarn, or any goods or article of silk, cess of maiiu- . . facture. woollen, linen, cotton, alpaca, or mohair, or of any one or more of those materials mixed with each other, or mixed with any other material, whilst laid, placed, or exposed, during any stage, process, or progress of manu- facture (r) in any building, field, or other place, shall be guilty of ftilony, and being convicted thereof shall be liable to be kojit in penal servitude for any term not exceeding fourteen years." As to Larceny or Embezzlement by Clerics, Servants, or Persons, in the Public Service. Larceny by Section 67. "Whosoever, being a clerk or servant (s), or being employed clerks or ^^^. ^^j^, pm-poso or in the capacity of a clerk or servant, shall steal any chattel, money, or valuable security belonging to oi' in the possession or power of his master or employer shall bo guilty of felony, and being con- {q) Rex V. Webb (1835), 1 Moore, C. C. 431. See 39 & 40 Geo. III. 0. 77, s. 4. (r) Tt. V. Woodhead (1836), 1 M. & R. 549. (s) See Part I., at p. 10, supra. THE EMBEZZLEMENT ACTS. 325 victed thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding? fourteen years, or to be im- prisoned, and, if a male under the age of sixteen years, with or without whipping." Section 68. " Whosoever, being a clerk or servant, or being employed for Erabezzle- the purpose or in the capacity of a clerk or servant, shall fraudulently ""'' yc'erks '■ '■ . . . •' ov servants, embezzle any chattel, money or valuable security, which shall be delivered to or received or taken in possession by him for or in the name or on the account of his master or employer, or any part thereof, shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money, or security was not received into the possession of such master or employer otherwise than by the actual possession of his clerk, servant, or other person so employed, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years, or to be imprisoned, and, if a male under the age of sixteen years, with or without whipping." 24 & 25 VICT. c. 97 (1861). An Act to consolidate and amend the statute laiv of England and Ireland relating to nialicious injuries to property. Section 1-1. "Whosoever shall unlawfully and maliciously cut, break, Destroyino- or destroy, or damage with intent to destroy or to render useless, any goods goods in pro- or article of silk, woollen, linen, cotton, hair, mohair or al23aca, or of any ^ „. one or more of those materials mixed with each other or mixed with any certain ma- other material, or any framework knitted piece, stocking, hose or lace, being chinery, &c. in the loom or frame, or on any machine or engine, or on the rack or tenters, or in any stage, process or progress of manufacture, or shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any warp or shute of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any one or more of those materials mixed with each other or mixed with any other material, or shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or I'ender useless, any loom, frame, machine, engine, rack, tackle, tool or implement, whether fixed or moveable, prepared for or emjjloyed in carding, sijinning, throwing, weaving, fulling, shearing, or otherwise manufacturing or prejDaring any such goods or articles, or shall by force enter into any house, shojj, building, or place, with intent to commit any of the offences in this section mentioned, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or to be imprisoned, and, if a male under the age of sixteen years, with or without whipping." Section 15. "Whosoever shall unlawfully and maliciously cut, break, or -Qq^^ ■ „ destroy, or damage with intent to destroy {t) or to render useless, any machines in (0 R. V. Fisher (18C5), L. R. 1 C. C. E,. 7. 326 THK l.MIU-.ZZLKMKX'l" ACTS. otlicr manu- mackine or engine, whether fixed or moveable, used or intended to be used factiires, fQj. sowing, reaping, mowing, threshing, ploughing or draining, or for per- machiues &c forming any other agi-icultural operation, or any machine or engine, or any tool or implement, whether fixed or moveable, prepared for or employed in any manufacture whatsoever, (except the manufacture of silk, woollen, linen, cotton, hair, mohair or alpaca goods, or goods of any one or more of those materials mixcid with each other or mixed with any other material, or any framework knitted piece, stocking, hose or lace), shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for anj^ term not exceeding seven years, or to be imprisoned, and, if a male under the age of sixteen years, with or without whi])ping." 2G & 27 VICT. c. 103 (1863). An Act to amend the law in certain cases of misajjprupriation by servants of the jiropertij of their masters. " Whereas the offence of taking corn or othcn- food by a servant from the possession of his master, contrary to his orders, for the piu'poso of giving the same or of having the same given to the horses or other animals of such master, is by law a felony (m) : And whereas it is desirable to alter the law in this respect : " Be it enacted as follows : — Servants 1. If any servant shall, contrary to the orders of his master, take from his taking their possession any corn, pulse, roots, or other food, for the purpose of giving the &C.'' without ' ^^^^ 01" of having the same given to any horse or other animal b(>longing to authority, for or in possession of his master, the servant so offending shall not by reason the purpose of thereof be deemed guilty of or be proceeded against for felony, but shall, on same to their conviction of such offence before two justices of the peace, at their discretion, master's either be imprisoned with or without hard labour, for any tei-m not exceed- horses, &c. -^^g throe months, or else shall forfeit and jiay such penalty as shall appear felony, but to them to be meet, not exceeding the sum of five j)ounds, and if such shall be liable penalty shall not be paid, either immediately after the conviction, or within to imprison- gyg]^ period as the said justices shall at the time of the conviction appoint, the servant so offending shall be imprisoned, with or without hard labour (.t) ; Power to provided always, that if upon the hearing of the charge the said justices justice to dis- shall be of opinion that the same is too trifling, or that there are circum- luiss case if stances in the case which render it inexpedient to inflict any punishment, trifli'ng °° ^"^^Y sball have power to dismiss the charge, without proceeding to a con- viction : provided also, that if upon the trial of any servant for feloniously taking from his master any corn, pulse, roots, or other food consumable by horses or other animals, stich servant shall allege that he took the same under such circiimstances as would constitute an offence punishable under («) This Act was passed in conse- [x) For scale of imprisonment on non- quence of the decision in R. v. Privett payment of penalties, see 42 & 43 Vict. (1846), I Den. C. C. 193. c. 49, s. 5. THE EMBEZZLEMENT ACTS. this Act, and thereof shall satisfy the jury charged with his trial, then it shall be lawful for such jury to return a vcmlict accordingly ; and thereupon the (^ourt before which such trial shall take place shall proceed to award such punishment against such servant as may be awarded by two justices of the peace on the conviction of any person under the provisions of this Act : provided also, that in case of non-payment of any penalty to be imposed by the Court on such servant, Iw shall be imprisoned, with or without hard labour, for any term not exceeding three months, as the Court shall order, unless such penalty shall be sooner paid. Section 2 enacts power to appeal against conviction (//). Section 3 enacts that no certiorari shall lie. Section 4 enacts that summary proceedings may be taken under 11 & 12 Vict. c. 43, except in London and the Metropolitan police district. Section 5 enacts that the Act shall extend to England only. (y) The procedure is that provided by the Summary Jurisdiction Acts : see 47 & 48 Vict. c. 43, s. 6. 327 328 CHAPTER III. servants' characters. 32 GEO. III. c. 56 (1792). An Ad for j^)rtventing the counterfeiting of certificates of the cliaracters of servants (o). Preamble. Wheueas many false and counterfeit cliai'acters of servants have either been given personally, or in writing, by evil disposed persons being, or pretending to be, the master, mistress, retainer or superintendent of such servants, or by persons who have actually retained such .servants in their respective service, contrary to truth and justice, and to the peace and security of his ISfajesty's subjects: And whereas the evil herein complained of is not only difficult to be guarded against, but is also of great magnitude, and continually increasing, and no sufficient remedy has hitherto been applied : 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 thousand seven hundred Any person and ninety-two, if any person or persons shall falsely personate any master persouatmg a ^^ mistress, or the executor, administrator, wife, relation, housekeeper, or o-ivino- a steward, agent, or servant of any such master or mistress, and shall, either false charac- personally or in writing, give any false, forged or counterfeited character to any person offering him or herself to be hired as a servant into the service of any person or persons, then, and in such case, every such person or persons so offending shall forfeit and undergo the penalty or punishment hereinafter mentioned and in that behalf provided. or as-erting 2. And from and after the said first day of July, one thousand seven that a servant hundred and ninety-two, if any person or persons shall knowingly and liiivd fo^ a wilfully pretend, or falsely assert in writing, that any servant has been period of time hired or retained for any period of time whatsoever, or in any station or "^ ^'.' '' capacity whatsoever, other than that for which or in which he, she, or they shall have hired or retained such servant in his, her, or their service or employment, or for the service of any other person or persons, that then, and in either of the said cases, such person or persons so offending as aforesaid shall forfeit and undergo the penalty or punishment hereinafter mentioned and in that behalf provided. (a) See as to servautb' characters, I'arL 1., (Jhupter Xl\'. ter to servant, servants' characters. 329 3. And from and after the said first day of July one thousand seven or was dis- hundred and ninety-two, if any person or persons shall knowingly and "larged at wilfully pretend or falsely assert in writing, that any servant was discharged time, or had or left his, her, or their service at any other time than that at which he or not been hu-ed she was discharged or actually left such service, or that any such servant ^° ^^^ P^^.' ^ •' . . , vious serving, had not been hired or employed in any previous service, contrary to truth, contrary to that then, and in either of the said cases, such person or persons shall forfeit the fact ; and undergo the penalty or punishment hereinafter mentioned and in that behalf provided. 4. And from and after the said first day of July one thousand seven or any person hundred and ninety-two, if anv person shall offer himself or herself as a offering hun- •^ ' ' . . sell as a ser- servant, asserting or pretending that he or she hath served m any service in y^^^^. pj,g. which such servant shall not actually have served, or with a false, forged, tending to or counterfeit certificate of his or her character, or shall in anywise add to or ^^^^g^^J^j^^s alter, efface, or erase any word, date, matter, or thing contained in or uot served, referred to in any certificate given to him or her by his or her last or former or with a false actual master or mistress, or by any other person or persons duly authorised ^-^^ ^^^j^ by such master or mistress to give the same, that then, and in either of the alter any cer- said cases, such person or persons shall forfeit and undergo the penalty tificate ; or punishment hereinafter mentioned and in that behalf provided. 5. And from and after the said first day of July one thousand seven or who, hundred and ninety-two, if any person or persons, having before been in bg^^g^jn^^" service, shall, when offering to hire himself, herself, or themselves as a service, shall servant or servants in any service whatsoever, falsely and wilfully pretend pretend not not to have been hired or retained in any previous service as a servant, that .° ^^^J^ then and in such case such person or persons shall forfeit and undergo the service ; penalty or punishment hereinafter mentioned and in that behalf provided. 6. And from and after the said first day of July one thousand seven shall on con- hundred and ninety-two, if any person or persons shall be convicted of any J^^^g^^.^Q^ or either of the offence or offences aforesaid, by his, her, or their confession, or by the oath of one or more credible witness or witnesses, before two or more justices of the peace for the county, riding, division, city, liberty, town, or place, where the offence or offences shall have been committed (which oath such justices are hereby empowered and required to administer), every such offender or offenders shall forfeit the sum of twenty pounds, one Application moiety whereof shall be paid to the person or persons on whose information of forfeiture. the party or parties offending shall have been convicted, and the other moiety thereof shall go and be applied for the use of the poor of the parish wherein the offence shall have been committed ; and if the party who shall Persons uot have been so convicted shall not immediately pay the said sum of twenty paying the pounds so forfeited, together with the costs and charges attending such con- ^^^^^^ orTot viction, or shall not give notice of appeal, and enter into recognizance in the giving notice manner hereinafter mentioned and in that behalf provided, such justices of appeal, shall and may commit every such offender to the house of correction or some coiiimitted. other prison of the county, riding, division, city, liberty, town, or place, in which he or she shall have been convicted, there to remain and be kept to hard labour. 7. IRqoeahd hij Statute Law Revision Act, 1871.] 330 SERVANTS' CHAKACTl'.KS. Offenders discoveriug' ai-cornplices bt-foio infor- mation, iudemnifieil. Parties ag'- ■jrieved may appeal to the quiu-tor sessions. Pro< eedings not to be quashed for want of form, or removed by certiorari. 8. I'royiiled always that if any servant or servants, who shall have been guilty of any of the olfoncos aforesaid, shall, before any information has been given or lodged against him, her, or them, for such offence, discover and inform against any person or 2)ersons concerned with him, her, or them, in any offence against this Act, so as such offender or oft'enders be convicted of such oft'enco in manner aforesaid, every such servant or servants so discover- ing and informing, shall thereupon bo discharged and indemnified of, from, and against all penalties and punishments to which, at the time of such information given, he, she, t)r they might be liable by this Act, for or by reason of such his, her, or their own offence or offences. 9. \_J^^orin of coavictiun, see 11 (t 12 Vict. c. 43, s. 17, and the Summary Jurisdiction Rules, 1886.] 10. Provided always, that if any person shall think himself or herself aggrieved by anything done in pursuance of this Act, such person may appeal to the justices of the peace at the next general or quarter sessions of the peace {b), and no conviction or order made concerning any m.attei's afore- said, or any other proceedings to be had, touching the conviction or convic- tions of any offender or offenders against this Act, shall be quashed for want of form, or be removed b}' certiorari or any other writ or process whatsoever into any of his Majesty's courts of record at Westminster. {b) Appeal procedure is regulated by sect. 31 of the Summary Jurisdiction Act, 1879. See sect. 6 of the Summary Jurisdiction Act, 1884. 331 CHAPTER IV. THE TRUCK ACTS. Enactments intended to stop frauds and abuses arising out of the practice of paying workmen and labourers in goods of a poor quality, or of making unreasonable and excessive deductions from wages, are very ancient. As long ago as 1464 Parliament inter- fered (4 Edw. IV. c. 1, repealed by 1 & 2 Will. III. c. 36) with a view to protect labourers against being compelled to take a great part of their wages in " pins, girdles, and other unprofitable wares." Parliament declared that masters " shall pay to the carders, spinners, and all such other labourers, in any part of the said trade, la^vf ul money for all their lawful wages, and payments of the same." In 1565 the 8 Eliz. c. 7, s. 6 was passed for the benefit of the " sheermen, frizers, and cottoners " of Shrewsbury, to prohibit payment in wares. The 1 Anne, c. 18 (made perpetual by 9 Anne, c. 30 ; see also 10 Anne, c. 16, s. 6) was also passed in order to prevent " the oppression of the labourers and workmen employed in the woollen, linen, fustian, cotton, and iron manu- facture." It declared that payments should be by lawful coin, and not by cloth, victuals, or commodities. As the manufactm-es of England extended, the evils of the truck system spread ; and the Legislature interfered from time to time, now in one trade and now in another, with a view to ensm-e payment of wages in cash. Acts dealing with this subject were passed in 1714 (1 Geo. I. s. 2, c. 15), in 1725 (12 Geo. I. c. 34, ss. 3, 4 and 8), in 1740 (13 Geo. II. c. 8, s. 6), in 1756 (29 Geo. II. c. 33), in 1779 (19 Geo. III. c. 49), in 1817 (57 Geo. III. c. 115, and c. 122), and 1818 (58 Geo. III. c. 51). The former Acts on the subject were repealed by 1 & 2 Will. IV. c. 36. The existing statutes known as the Truck Acts are— the Truck Act, 1831 (1 & 2 Will. IV. c. 37), the Truck Amendment Act, 1887 (50 & 51 Vict. c. 46), the Truck Act, 1896 (59 & 60 Vict. 332 TIIK TRUCK ACTS. c. 44), and llic Hosiery Manufacture (Wages) Act, 1874 (-'iT & 38 Vict. c. 48). The last-named Act was passed in consequence of tlio recom- mendations of a Royal Commission appointed in 187 1, and of certain decisions such as Chairncr v. Cuiiiininx (1845), 8 Q,. B. '6\\ ; and Archer v. James (1862), 31 L. J. (i. B. 1^'3. It abolished frame- rents, and made illegal any contracts between master and worknum for the payment thereof. The chief object of the Truck Act, 1896, was to create further safeguards for the workmen who contracted for deductions or pay- ments in respect of fines (sect. 1), damaged goods (sect. 2), materials and tools (sect. 3), by i)roviding that the employer who infringed its provisions is guilty of an offence under the principal Act (sect. 4), and is liable to a suit for the recovery of the sums so paid or deducted (sect. 5). In the Coal and Metalliferous Mines Regidation Acts are similar provisions. Section 116 of the Factory and Workshop Act, 1901 (1 Edw. VII. c. 22), which requires particulars of wages to be fm-nished, is a further extension of the principle of the Truck Acts. All of these statutes were passed to prevent abuses in regard to the ])aymeut of wages. The following are the chief provisions in the existing Truck Acts : - (1) In contracts of hiring, the entire wages are to be paid in coin (sect. 3, Act of 18;U) ; (2) Any (iontract ])roviding for the payment of wages otherwise than in current coin, is illegal, null, and void (sect. 1, Act of 1831) ; (3) A payment made by delivery of goods or otherwise is null and void (sect. 3, Act of 1831). It is also a mis- demeanour (sect. 9, ihid.) ; (4) No deduction or set-off for goods supplied is legal (i) by an employer, or by any shop in which he is interested (Act of 18;U, s. 5) ; or (ii) under any order or direction given by himself or his agent (Act of 1887, s. 5) ; (5) Coatracts as ttj the place where or the manner in which wages are to be expended are illegal, null, and void (sect. 2 of Act of 18;}1, and sect. 6 of Act of f>87) ; (6) Persons to whom the Acts apply. The Act of 1831 was confined to certain specified trades (sect. 19) ; but by sect. 2 of the Act of 1887, the two Acts, which THE TRUCK ACTS. 333 are to be read to2:ether (sect. 1), were extended to "any workman defined in the Employer and Workman Act, 1875, s. 10 " {n). By sect. 10 of the Act of 1887, wlien articles are made by a person at his own home or otherwise without the employment of any person under him, the Acts apply to him as if he were a workman. (7) The chief exemptions from the Acts are : — A.— Under the Act of 1831, s. 23 : 1. Medicine and medical attendance ; 2. Materials and tools to miners ; \ 3. Fuel ; Deductions in respect 4. Provender for beasts used in r thereof not to exceed business ; their true value. 5. Eent. ) Deductions from wages for the foregoing things, or for advances in respect thereof, must be by contract in writing signed by the workman. B. — 1. Advances of contributions to benefit societies for sick relief, or for education of children (1831, s, 24). 2. Deductions for sharpening tools under special agreement (Act of 1887, s. 8). Deductions for education, medicine and tools to be avidited (1887, s. 9) C— Act of 1896. 1. Deductions for fines (sect. 1) (*^) ; damaged goods (sect. 2), or materials and tools (sect. 3), to be made under public notice, or written contract signed by the workman, and must be reasonable in amount. 2. Deductions made not in accordance with the Act may be recovered (sect. 5). (8) No interest is to be charged on advances of wages (Act of 1887, s. 3). (9) Remedies : — The workman may recover wages not paid in coin (Act of 1831, s. 4). A set-off is not allowed in respect of goods supplied contrary to the provisions of the Act (sect. 5) ; and contracts or payments made illegal are punishable as misdemeanom-s (sect. 9). («) See notes on that section at {l>) Shop assistants are included in p. 617, t«/m. this provision. 384 THE TKIICK ACTS. (lo) i'ouiilties are imposed upou employ or.s i'or euteriug- iuto coutracts, or making payments or deductions declared illegal by the Acts [1831, s. 9 ; 1887, s. 11 ; 1896, s. 4] ; and their agents (Act of 1887, s. 11). (And see Act of 1831, ss. 9, 10, 13, 14, 17 ; Act of 1887, ss. 12, 13, 14, 15) (c). The Acts of 1831, 1887 and 1896 are to be coustruod together as one Act (Act of 1896, s. 12). 1 & 2 WILL. IV. c. 37. [loth October, 1S;}1.] A7I Act to prohibit fJif I'fii/'nent, in ariaiii trades, of iviujcs in. goods, or ctherivise than in the current coin of the realm. AVliercas it is necessary to prohibit the payment, in certain trades, of wages in goods, or otherwise than in the current coin of the realm ; be it there- fore enacted by the King s most excellent Majesty, by and with the advice iirthe'current and consent of the Lords spiritual and temporal, and Commons, in this coin of the present Parliament assembled, and by the authority of the same, that in all contracts hereafter to be made for the hiring of any artificer ('/), or for the performance by any artificer of any labour in any of the said trades, the wages of such artificer shall be made payable in the current coin of this realm only, and not otherwise ; and that if in any such contract the whole or any part of such wages shall be made payable in any manner other than in the current coin aforesaid, such contract shall be and is hereby declared illegal, null, and void. The following cases may be consulted on the question of the meaning of "wages" : Chawncr v. Cummins (1815), 8 Q. B. ;511 ; Archer v. Jaiiwx (186-2), 31 L. J. Q. B. 153 (fj; Smith v JVnHon (1877), 3 C. V. D. 109; AUhiift v. Tat/lor (1887) (unre- Conti-acts for the hiring of artificers must be made realm (c) The procedure for the recovery of penalties is now regulated by the Sum- mary Jurisdiction Acts : vide sect. 5 of the Summary Jurisdiction Act, 188t. {d) The words "in any of the trades hereinafter enuuiorated " were repealed by the Truck Act, 1887, and the Statute Law Revision Act, 1891. The repeal of words by those Acts wLLl not be noted. See as to the present application of the Act and the definition of the word "artificer," the Truck Act, 1887, s. 2. [e) " Whatever is contracted to be paid for personal labour is wages, and what is more than that is not wages. Tlie price of Id. per dozen in the case before the Court is not merely wages so defiued, but wages plus an addition for the work done by the stocking-frame " (per Byles, J., in Archer v. JanwH, I. c. at p. Kil). Bramwell, B.'s, view was as follows [ibid. p. IGG) : " Pure wages are the price of labour alone, Bimply laboiu:. As soon as a tool is used, capital is used, and if the tools are the labourer's he is a capitalist, and part of what \\g receives is capital. ... I do not say that what the man with his flail receives, nor what the carpenter with his tools receives, nor what tiie working hosier who finds the frames and machines, fire, light, &c. receives, are not properly wages, and wages within the meaning of the Truck Acts. They are : the labour is the principal thing. . . . There is a case where the machine or tool is so the principal ingredient that the jjayment is principally on account of it, and there- fore, when the machine or tool is of appreciable value part of the payment is in respect of it." " From the carpenter's gross income we must deduct the expenses which he incurs for tools ; and when estimating the earnings of quarrymen in any dis- trict, we must find out whether local custom assigns the expenses of tools ;ind blasting powder to them or to their employers " : Marshall's Political Eco- iwiny (2nd ed.), p. 083. THE TJiUCK ACTS. 335 ported; printod at p. 4o of the memoniudum on the Truck Acts, Bluebook — 1896 _C— 8048); JTiif/hcs v. Bonclla (1894), 10 Times L. R. 197. _ Some of these decisions arc noticed in the notes on sect. 23, ivfra. Here it is enoug'h to say- that "wages " means strictly tlie remuneration of labour, and does not include the instruments or means of enabling- the labourer to perform his work. But see sect. 10 of the Truck Amendment Act, 1887. 2. If in any contract hereafter to be made between any artificer and his and niust not emph)yor, any provision shall bo made directly or indirectly respecting the yti^julation^ place whoi'o, or the manner in which, or the person or pei'sons with whom, as to the the whole or any part of the wa^cs due or to become due to any such artificer manner m -.,^1 iiiiii T-1 111 1 which the shall be lard out or expended, such contract shall be and is lua-eby declared ^^o-es shall illegal, null, and void (./'). be expended. 3. The entire amount of the wages earned by or payable to any artificer All wages in respect of any labour by him done, shall be actually paid to such artificer must be paid ■, ■ ■, -I , ,1 • 1 i. m com. in the current com of this realm, and not otherwise ; and every payment made to any such artificer by his employer, of or in respect of any such „J^^^ illeg-al. wages, by the delivery to him of goods or otherwise than in the current coin aforesaid, except as hereinafter mentioned, shall be and is hereby declared illegal, null, and void {g). Having regard to the terms of this section, an employer may not deduct from the wages money which a court of summary jurisdiction has ordered the workman to pay to the employer in respect of breaches of contract to work : IVilliams v. North'' s Navigation Collieries, [1906] A. C. 136. 4. Every artificer shall be entitled to recover from his employer, in the Artificers manner by law provided for the recovery of servants' wages, or by any other ^"^^J recover „, , ,TiT ii>ji ii_ 1. wages it not lawful ways and means, the whole or so much of the wages earned by sucn -^ ^ ^-^e artificer as shall not have been actuallj^ paid to him by such his employer in current coin. the current coin of this realm. 5. In any action, suit, or other proceeding to be hereafter brought or j^ ^n action commenced by any artificer against his employer, for the recovery of any brought for sum of money due to any such artificer as the wages of his labour, the ^ "^^^ -^^ defendant shall not be allowed to make any set-off, nor to claim any allowed for reduction of the plaintiff's demand, by reason or in respect of any goods, goods sup- wares, or merchandise had or received by the plaintiff as or on account of enipioygj. q^ his wages or in reward for his labour, or by reason or in respect of any by any shop goods, wares, or merchandise sold, delivered or supplied, to such artificer at "^ which the -1 ,1 1 1 • i 1 1 • ii employer is any shop or warehouse kept by or belonging to such employer, or m the interested. profits of which such employer shall have any share or interest (A). It is pointed out by Bowen, L. J., in Hcwlrtt v. Allen ([1892] 2 Q. B. 667-8), that this section extinguishes the right of set-off only in the cases specifically mentioned therein (t). In the same case in the House of Lords, Lord Herschell (/) As to the meaning of this section, (i) "The general sections of the Act see the remarks of Lord Herschell in and the provisions which affect the civil Hitvlett V. Allen, [1894] A. C. at pp. rights of parties do not cover precisely 391, 392, and of Lord Morris, ihid., pp. the same ground. The payment in cur- 395, 396. And see the notes on sect. 5, rent coin of a portion only instead of the infra. entire wages, may be an offence against {g) See sect. 10 of the Truck Act, the Act, and yet, when the workman 1887, as to articles made in the work- sues to recover the unpaid portion, the man's own home. employer is not precluded in all cases (/;) See sect. 5 of the Truck Act, 1887. and every case alike, although in respect 336 THE TKUCK ACTS. remarks ( [isr>4] A. C. 390): "It (sect. 5) dors not touch a case of set-off of money paid for the person employed at his or her request." As to what deductions are allowable, Ex parte Cooper, In re Morris ( (1884), 26 Ch. D. 603), is in point. Certain employers, by an arrangement with their workmen, deducted from the monthly wages so much for a doctor's fund, and a reading-room fund. Tliere was uo e\-idouce of a contract in writing signed by the workmen allowing the payments or any evidence that tlie doctor had agreed to accept the liability of the employer. It was held by the Court of Appeal that there had been no payment. But both Karl Selbornc and Cotton, L. J., expressly stated that they did not decide that there would not have been payment if the deductions had been made, and applied in pursuance of the workmen's directions in discharging debts for which they were liable. The same question was discussed in Hewlett v. Alleyi, audi received the same answer in the Divisional Court (/.), the Court of Appeal (/), and the House of Lords (w), though in each instance upon different grounds. The facts of the case were as follows : The plaintiff, on entering the service of the defendants, her employers, signed an agreement "to coTiform to all the rules and regulations of Messrs. J. Allen & Sons' works, and to submit to the penalties for the breach of the same, a copy of which rules and regulations was given me at the time of signing this." One of those rules was: " All employes will liave to b(M!onie members of the sick and accident club." By the regulations of that club the contributions of the members were fixed, varying in amount according to the wages earnel. The plaintiff's subscription, as thereby fixed, was deducted weekly from her wages, she recieiving on each occasion a ticket showing her gross amount of wages, the deduction made, and the balance or net wage paid to her. She never received the benefits of the club, and she never raised any objection to this proceeding. The plaintiff sought to re(;over the amount of the deductions. Boweu, L. J., delivering in the Court of Appeal the judgment of himself and of Esher, M. R., held that the contract was illegal, null and void, under sect. 2 of the Act, and could not therefore be an authority for payments to the fund. " Tlie employer cannot, for the purpose of compliance with tlie statute, be both piyer and payee. . . . An oft'ence against the \v,t has therefore to ail appearance been (committed, for the burden lay on the defendant to pay actual coin payable." The Court, however, held that, though the Truck Acu had been infringed, the employers had a good set-off or counterclaim available to them — as not beiiiK prohibited by sect. 5 of the Act— in the fact that " these sums have been paid over professedh' on the ])laintitf's behalf to a trust fund of whic^h S. Allen is trustee, and have been used for the purposes of the fund, and tliat slie subse- quently ratified and assented to su(!h payment and exi)enditures." The Court also held — though it was not necessary to the decision — that, on the evidence, there had been an offence against sects. 1 and 3 of the Act. In the House of Lords, Herschell, L. C, differed from the Court of Appeal as to the offence, holding that there had been full payment in coin. Though he thought it not quite clear whether the contract was within sect. 2. of the Act, he cousidi red that, even assuming it was, tlic plaintiff's present claim was barred by her previous consent and authority. There had been in law a payment. ' ' The contrast in these sections is between payment in current coin of the realm and paynient in some other fashion ; and I can myself entertain no doubt that a i^ayment made by an employer at the instance of a person employed to discharge some obligation of the person employed, or to place the money in the hands of some person in whose hands the person employed desires to place it, is in tiie sense and meaning of these sections a payment to the person employed as much as if current coin of the realm has been placed in his or her liands " (p. 389, ibid.). This opinion was shared by the other law lords. Secondly, in the view of Lord Herschell, even if the contract was within the Truck Act, and the employer liable to a penalty, the payment might b(! pleaded as a set-off — a view which the Court of Appeal had adopted. Lord Morris thought that tlie contract was not within the second section ; it was not a " laying out " or " expending" of wages ; there was no stipulation that ihe payment was to be out of wages. Lord Shand took the same view, observing: "I think all enq)loyer8 may fairly say : ' I shall not employ or retain a servant in my employment unless of certain specified dealings he is de- (/■-■) 56 J. P. 822. prived of a particiJar ^et'Off-" See ^^ .jg^g] 2 Q. B. 662. [1906] A. C. 136. (w) [1894] A. C. 383. THE TRUCK ACTS. ^*'^^ he contributes to a sick and benefit fund, and thus makes a provision for a time of illness, and from accident or otherwise, or it may V)e death.' " It is conceived that a contract may be within the section, though the contract does not stipulate that the payment is to be made out of wages. {Vide Lord Herschell's remarks, at p. 391, /. r.) The .atatute may be infringed even if the artificer might have received payment in cash had he desired it. In IFi/son v. Coolmm (1863), 32 L. J. M. C. 177, it was proved that from the wages of a labourer were deducted two shillings for goods which he had received at the employer's shop. The Court of Common Pleas held that it was no answer that he might have had the two shillings in cash if he liked («)• The refusal or omission to pay wages is not within the statute. Thus in Rcdfjrare v. KeUij (1889), 37 W. R. 543, it was hold that deductions from wages by way of fiaes for spoilt work and impudence were not touclied by the Act (irre- spective apparently of their amount). 6. Xo employer of any artificer shall have or be entitled to maintain any No employer suit or action in any Court of law or eciiiity against any such artificer, for or ^^^ action in respect of any goods, wares, or merchandise sold, delivered, or supplied to against his any such artificer by any such employer, whilst in his employment, as or on artificer for account of his wages or reward for his labour, or for or in respect of any %\{Q^^-^[f^ goods, wares, or merchandise sold, delivered, or supplied to such artificer at on account of any shop or warehouse kept by or belonging to such employer, or in the wages, profits of which such employer shall have any share or interest. 7. If any artificer, or his wife or widow, or if any child of any such If the artificer artificer, not being of the full age of twentv-one years, shall become charge- °'' , '^.Y"® .„.,." B ^ T J ,^ ^^ children able to any parish or place, and if witmn the space of three calendar months become next before the time when any such charge shall be incurred such artificer chargea,ble to shall have earned or have become entitled to receive any wages for any * ® P^^^^^' . -^ ^ . •' the overseers labour by him done, which wages shall not have been paid to such artificer may recover in the current coin of this realm, it shall be lawful for the overseers or any wages overseer of the poor in such parish or place to recover from the employer of J, three such artificer in whose service such labour was done, the full amount of preceding wages so unpaid, and to proceed for the recovery thereof by all such ways months, and and means as such artificer himself might have proceeded for that purpose ; |^°g^'^^^ and the amount of the wages which may be so recovered shall be applied in reimbursing such parish or place all costs and charges incurred in respect of the person or persons to become chargeable, and the surplus shall be applied and paid over to such person or persons. 8. Provided always, that nothing herein contained shall be construed to Not to in- prevent or to render invalid any contract for the payment, or any actual ^^hdate the payment, to any artificer, of the whole or any part of his wages, either in the wao-esinbauk notes of the governor and company of the Bank of England, or in the notes notes, if of any person or persons carrying on the business of a banker, and duly licensed to issue such notes in pui'suance of the laws relating to his Majesty's revenue of stamps, or in drafts or orders for the payment of money to the («) See Latv v. Pratt (1843), 1 L. T. (O. debt, and carried them to the pay clerk, S.) 623. (One of the defendants, partner who asked them, "How much of that in a manufacturing firm, kept a shop, do you mean to get?" and gave them at which his men were accustomed to the diiference in money. In an action get goods on credit. On the pay-day, for wages, to which payment was once a week, the men who dealt at the pleaded. CresweU, J., directed the jury shop (the plaiutitf being one of them) that this mode of payment was valid, got from the shop tickets showing their But query.) M. Z artificer consents. 338 Tin: TRUCK ACTS. bearer on demand, drawn upon any person or persons carrying on the business of a banker, being duly licensed as aforesaid, within fifteen miles of the place where such drafts or orders shall be so paid, if such artificer shall be freely consenting to receive such drafts or orders as aforesaid, but all payments so made with such consent as aforesaid, in any such notes, di-afts, or orders as aforesaid, shall for the purposes of this Act be as valid and effectual as if such payments had been made in the current coin of the realm. 9, Any employer of any artificer, who shall, by himself or by the agency of any other person or persons, directly or indirectly enter into any contract or make any payment hereby declared illegal (o), shall for the first offence forfeit a sum not exceeding ten pounds \_nor less than Jive pounds'] ( f), and for the second offence any sum not exceeding twenty pounds nor less than ten pounds, and in case of a third offence, any such employer shall be and be deemed guilty of a misdemeanor, and, being thereof convicted, shall be punished by fine only, at the discretion of the Court, so that the fines shall not in any case exceed the sum of one hundred pounds. This penalty and the liability under section 4 are cumulative : Wilson v. Cookson (1863), 32 L. J. M. C. 177. This section is extended to agents by section 12 of the Truck Amendment Act, 1887. See sect. 13, sub-s. (1) of the Truck Act, 1887, for the maximum penalty to be imposed on summary conviction. Proviso as to 10- (v) • • • • Provided tilwuys, that no person' shall be punished as for a second second offence under this Act, \mless ten days at the least shall have inter- oflPence. Penalties on employers entering into contracts hereby declared illegal. (o) A.ihcrsmiih v. Bniry (1858), 28 L. J. M. C. .T : An emploj'er, the de- fendant, refused money to a workman's wife, but gave her a "shop note," to take to a clerk. The clerk refused money but gave her an order for a shop, which he mentioned. The justices found that the defendant knew and in- tended when he gave the first note, that she was to get goods and not m dolivcr with Avarp a ticket of w urk. Ticket to he evidence iu cases of dispute ; and work to he produced in order to adjudication. Levying and application of penalty. No certiorari allowed. 8 & 9 YICT. c. 128 (1845). All Act to make fitrther re- manufacture of kitting out frames and machinery to the artificers emjiloyed by them, and it is desirable to prohibit such letting of frames and machinery, and the stoppage of wages for frame rents and charges in tho hosiery manufacture. Be it enacted as follows : 1. In all contracts for wages the full and entire amount of all wages, the Wa^'cs to be earnings of labour in tho hosiery manufacture, shall be actually and positively- 1*^" stoppages made payable in net, in the current coin of the realm, and not otherwise, whatever. ° without any deduction or stoppage of any description whatever, save and except for bad and disputed worknianshiii. 2. All contracts to stop wages, and all contracts for frame rents and Contracts to charges, between employers and artificers, shall be and are hereby declared '^^^^ for frame to be illegal, null, and void(«). rents illegal. 3. If any employer shall bargain to deduct, or shall deduct, directly or Penalty for indirectly, from the wages of any artificer in his employ, any part of such ^g^°*^|."/^°| ^^ wages for frame rent and standing or other charges, or shall refuse or neglect foj. deducting to pay the same or any part thereof in the current coin of the realm, he shall from wages, forfeit a sum of five pounds for every offence, to be recovered by the said artificer or any other person suing for the same in the county court («) in the district where the offence is committed, with full costs of suit. The deduction of a fine for non-attendance from wages is not within this section : JFillis V. Thorp (1875). L. R. 10 Q. B. 383. 4. If any frame or machine which shall have been entrusted to any Penalty for artificer or other person by his employer for the purpose of being used in "sing frame the hosiery manufacture for such employment, or in any process incident to ^j^^^^ ^^^ ^-^^ such manufacture, shall, whilst the same shall be so entrusted, be worked, purpose for used, or employed without the consent in writing of such employer or other ^^^^ ^^™^ person so entrusting such frame or machine, in the manufacture of any goods or articles whatever for any other person than the person by whom such frame or machine shall have been so entrusted, then and in every such case the artificer or other person to whom the same shall have been so entrusted, shaU forfeit and pay the sum of ten shillings for every day on any part of which any such frame or machine shall have been so worked, used, or employed, to be recoverable by and for the benefit of the person who shall have so entrusted the same, in the county court («) for the district where the offence shall have been committed, with full costs of suit. 5. No action, suit, or set-olS between employer and artificer shall be No action to allowed for any deduction or stoppage of wages, nor for any contract hereby be allowed in respect of declared lUegal. any such bargaining. (<) See Truck Act, 1896, s. 8. Rules, 1903, Order L. rr. 35, 36 ; and an appeal Ues in the ordinary way : ((() The general rules of practice apply see Wdlis v. Thorp (1875), L. R. 10 to these actions : see County Court Q. B. 383. 344 THE TRUCK ACTS. Employer may recover debt due to him from artificer. Definition of terms. Short title. 6. Nothing in this Act contained shall extend to prevent the recovery in the ordinary eoiirso of law, by suit brought or commenced for the purpose, of any debt due from the artificer to the employer. 7. "Within the meaning and for the purposes of this Act, all workmen, labourers, and other persons in any manner engaged in the performance of any employment or operation, of what nature soever, in or about the hosiery manufacture, shall be and be deemed " artificers ; " and, within the meaning and for the purposes aforesaid, all masters, foremen, managers, clerks, contractors, sub- contractors, middlemen, and other persons engaged in the hiring, employment, or superintendence of the; labour of any such artificer shall be and be deemed to be " employers ; " and, within the meaning and for the purposes of this Act, any money or other thing had or contracted to be paid, delivered, or given as a recompense, reward, or remuneration for any labour done or to be done, whether within a certain time or to a certain amount, or for a time or for an amount uncertain, shall be deemed and taken to be the wages of such labour ; and, within the meaning and for the purposes aforesaid, any agroemont, understanding, device, contrivance, collusion, or arrangement whatsoever on the subject of wages, whether written or oral, whether direct or indirect, to which the employer and artificers are parties, or are assenting, or by which they are mutually bound to each other, or whereby either of them shall have endeavoured to impose an obligation on the other of them, shall be and be deemed a "contract." 9. This Act may be cited for all purposes as "The Hosiery Manufacture (Wages) Act, 1874." Short title. 1 & 2 Will, c. 37. 50 & 51 VICT. c. 46 (1887). An Act to uine)id and extend the Laiit relative/ to Truck. Be it enacted by tlie (iueen's ISIost Exc(?llont Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Tarliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Truck Amendment Act, 1887. The Act of the session of the first and second years of the reign of King William the Foui-th, chapter thirty-seven, intituled " An Act to prohibit the payiuent in certain trades of wages in goods or otherwise than in the current coin of the realm " (in this Act referred to as the principal Act) may be cited as the Truck Act, 1831, and that Act and this Act may be cited together as the Truck Acts, 1831 and 1887, and shall be construed together as one Act. 2 The provisions of the principal Act shall extend to, apply to, and pr^JciparAJI include any workman as defined in the Employers and Workmen Act, 1875, to workman as gection ten (:«), and the expression " artificer" in the principal Act shall be af&ll Vict, construed to include every workman to whom the principal Act is extended c. 90. {x) See the notes on that section at p. 617, infra. TriK TRUCK ACTS. ^^^ and aiipliofl by this Act, and all provisions and enactments in the principal Act inconsistent herewith are hereby repealled. 3. Whenever by agreement, cnstom, or otherwise a workman is entitled to Advance of receive in anticipation of the regular period of the payment of his wages an wages, advance as part or on account thereof it shall not be lawful for the employer to withhold such advance or make any deduction in respect of such advance on account of poundage, discount, or interest, or any similar charge. 4, Nothing in the principal Act or this Act shall render illegal a contract Saving fcr with a servant in husbandry for giving him food, drink, not being intoxi- serv^int in eating, a cottage, or other allowances or privileges in addition to money "** "^^ ^^' wages as a remuneration for his services. 6. In any action brought by a workman for the recovery of his wages, the Order for employer shall not be entitled to any set-off or counterclaim in respect of g^J^'^t'^Qj^^ any goods supplied to the workman by any person under any order or from wages direction of the employer, or any agent of the employer, and the employer of illegal, a workman or any agent of the employer, or any person supplying goods to the workman under any order or direction of such employer or agent, shall not be entitled to sue the workman for or in respect of any goods supplied by such employer or agent, or under such order or direction, as the case may be. Provided that nothing in this section shall apply to anything excepted by section twenty-three of the principal Act. This proviso is probably surplusage : Lamb v. Great Xorthern Ilfiil. Co., [1891] 2 Q. B. 281. 6. No employer shall, directly or indirectly, by himself or his agent. No contracts impose as a condition, express or implied, in or for the employment of any ^g^o^p^jQ^j^Ji workman any terms as to the place at which, or the manner in which, or the wages at any person with whom, any wages or portion of wages paid to the workman are particular or is to be expended, and no employer shall by himself or his agent dismiss ^ °P' any workman from his employment for or on account of the jjlace at which, or the manner in which, or the person with whom, any wages or portion of wages paid by the employer to such workman are or is expended or fail to be expended. Probably this section to " expended" merely repeats sect. 2 of the principal Act, and it does not apply to any contract excepted by sect. 23 of the principal Act : Lamb v. Great Northern Rail. Co., ubi sup. 7. Where any deduction is made by an employer from a workman's wages Deduction for for education, such workman on sending his child to any state-inspected education, school selected by the workman shall be entitled to have the school fees of his child at that school paid by the employer at the same rate and to the same extent as the other workmen from whose wages the like deduction is made by such employer. In this section "state-inspected school" means any elementary school inspected under the direction of the Education Department in England or Scotland or of the Board of National Education in Ireland. 8. No deduction shall be made from a workman's wages for sharpening or Dediuti..n for repairing tools, except by agreement not forming part of the condition of sharpening ... ■ tools, &c. hiring. 846 Tin: I'lniCK ACTS. Audit of deductions. Artificer to be piiid ill ciish and not by way of barter for articles made by him. 9. Where deductions are made from the wages of any workmen for the education of children or in respect of medicine, medical attendance, or tools, once at least in every year the employer shall, by himself or his agent, make out a correct account of the receipts and expenditure in respect of such deductions, and submit the same to be audited by two auditors appointed by the said workmen, and shall produce to the auditors aU such books, vouchers, and documents, and afi'ord them all such other facilities as are required for such audit. See sect. 23 of principal Act. 10. ^Vhc^e articles are made l)y a ])erson at his own home, or otherwise, without the employment of any jjerson under him except a member of his own family, the jirincipal Act and this Act shall apply as if he wex'e a work- man, and the shopkeeper, dealer, trader, or other person buying the articles in the way of trade were his employer, and the provisions of this Act with respect to the payment of wages shall apply as if the price of an article were wages earned during the seven days next preceding the date at which any article is received from the workman by the employer. This section shall applj^ only to articles under the value of five pounds knitted or otherwise manufactured of wool, worsted, yarn, stuff, jersey, linen, fustian, cloth, serge, cotton, leather, fur, hemp, flax, mohair, or silk, or of any combination thereof, or made or prepared of bone, thread, silk, or cotton lace, or of lace made of any mixed materials. AVhere it is made to appear to Her Majesty the Queen in Council that, in the interests of persons making articles to which this section aj)plies in any county or place in the United Kingdom, it is expedient so to do, it shall be lawful for Ker Majesty, by Order in Council, to suspend the operation of this section in such county or place, and the same shall accordingly be suspended, either wholly or in part, and either with or without any limitation or exceptions, according as is provided by the Oi'der. This alters as to the articles mentioned the delinition of " wages " in (Uiawncr v. Cummins and Archer v. James : see notes oa sect. 1 of principal Act. Offences. Fine on per- son com- mitting' offence for which em- ployer is liable, and power of employer to exempt him- self from penalty on conviction of Jictual offender. 11. If any employer or his agent contravenes or fails to comply with any of the foregoing provisions of this Act, such ( mployer or agent, as the case may be, shall be guilty of an offence against the princii)al Act, and shall be liable to the penalties imposed by section nine of that Act as if the offence were such an offence as in that section mentioned. 12.— (1) Where an offence for which an employer is, by virtue of the principal Act or this Act, liable to a penalty has in fact been committed by some agent of the employer or other person, such agent or other person shall be liable to the same penalty as if he were the employer. (2) Where an em})loyer is charged with an offence against the? principal Act or this Act he shall be; (mtitled, upon information duly laid by him, to have any other person whom ho charges as the actual offender brought befoni the Court at the time appointed for hearing the charge, and if, after the commission of the offence has been proved the omidoyer proves to the sati.sfaction of the Court that lie has usiul due diligence to enforce the execution of the said Acts, and that the said other person had committed the THE I'KUCK ACTS. '"^^^ offence in question without his knowledge, consent, or connivance, the said other person shall be summarily convicted of such offence, and the employer shall be exempt from anj' peualtj-. When it is made to api)ear to the satisfaction of an inspc'ctor of factories or mines, or in Scotland a procurator fiscal, at the time of discovering the ofl'once, that the employer had used due diligence to enforce the execution of the said Acts, and also by what person such offence liad been committed, and also that it had been committed without the knowledge, consent, or connivance of the employer, then the inspector or procurator fiscal shall I^roceed against the person whom he believes to be the actual offender in the first instance without first i)roceeding against the employer. Cf. sects. 14C, 141, of tho Factory and Workshops Act, 1901, and sect. 6 of the Shop Hours Act, 1S92. 13. — (1) Any offence against the principal Act or this Act may be prose- Recovery of cuted, and any penalty therefor recovered in manner provided by the penalties. Summary Jurisdiction Acts, so however that no p(^nalty shall be imposed on summary conviction exceeding that prescribed by the principal Act for a second oft'ence {i/). See sect. 17 of the principal Act. No right of appeal to Quarter Sessions is given by that Act or by 42 & 48 Vict. c. 49, s. 19 (Summary Jurisdiction Act, 1879) ; but there is a right of stating a special case for the opiuion of the Court. (S. J. Act, 1879, s. 33.) (2) It shall bo the duty of the inspectors of factories and the inspectors of mines to enfoi'ce the provisions of the principal Act and this Act within their districts so far as respects factories, workshops, and mines inspected by them respectively, and such inspectors shall for this purpose have the same powers and authorities as they resp^ ctively have for the purpose of enforcing the provisions of any Acts relating to factories, wox'kshops, or mines, and all expenses incurred by them under this section shall be defraj'ed out of moneys provided by Parliament. (3) In England all penalties recovered under the principal Act and this Act shall be paid into the receipt of Her Majesty's Exchequer, and be carried to the Consolidated Fund. (4) In Scotland — (a) The procurators fiscal of the sheriff' court shall, as part of their official duty, investigate and prosecute offences against the jirin- cipal Act or this Act, and such prosecution may also be instituted in the sheriff coui't at the instance of any inspector of factories or inspector of mines ; (b) ^VU ott'ences against the said Acts shall be prosecuted in the sheriff court. The powers of inspectors are extended by sect. 10 of the Truck Act, 1896. (y) Not more than 20/. nor less than 10/. : vide sect. 9 of principal Act. 348 THE TRUCK ACTS. Dcfiuitionp. 14. Tn this Act, unles's tho context otherwiso requires, — The expression " Smninary Jurisdiction Acts" means, as respects England, the Sumniarj' Jurisdiction Acts as defined by the Summary Jurisdiction Act, 1879 ; and, as respects Scotland, means the Summary Jurisdiction (Scotland) Acts, 1864 and 1881, and any Acts amending the same : Other expressions have the same meaning as in the principal Act. Di.Hqiuilifica- 15. So much of tho principal Act as disqualifies any justice from acting as Hull of justice, such under the principal Act is hereby repealed. A person engaged in tho same trade or occupation as an employer charged with an offence against tho principal Act or this Act shall not act as a justice of tho peace in hearing and determining such charge. See sects. 21 and 2'2 of the principal Act. Aineudinent 16. Tlio provisions of the principal Act conferring powers on any overseers of 1 & 2 ^ QY overseer of the poor shall be deemed to confer those po\v(n's in the case of as to over- '' England on the guardians of a union, and in the case of Scotland on the geers. inspectors of the poor. Repeal. 17 The Acts mentioned in the schedule to this Act are hereby repealed to the extent in the third column of tho said schedule mentioned, without prejudice to anything heretofore duue or suffered in respect thereof. Application of 18. The principal Act, so far as it is not hereby repealed, and this Act Acts to f-ii-iii extend to Ireland, subject to th(; following provisions : Ireland. ( 1 ) Any offence against the principal Act or this Act may bo prosecuted and any penalty therefor may be recovered in the manner provided by the Summary Jurisdiction (Ireland) Acts; (that is to say,) within the Dublin Metropolitan Police District the Acts regulating the powers and duties of justices of the peace and of the police of that district, and elsewhere in Ireland the Petty Sessions (Ireland) Act, 1851, and the Acts amending the same ; (2) Penalties recovered under the principal Act or this Act shall be applied in the manner directed by the Fines (Ireland) Act, 1851, and the Acts amending the same. THE J'KUCK ACTS. 349 SCHEDULE. Session and Chapter. 12 Geo. I. c. 34 22 Geo. TI. c. 27 30 Geo. II. c. 12 67 Geo. III. c. 115 57 Geo. III. c. 122 1 & 2 Will. IV. 0. 37 Title of Act. An Act to prevent unlawful combinations of workmen employed in the woollen manufactures, and for better payment of their wages. An Act, the title of which begins with ' ' An Act for tlie more effectual prevent- ing of frauds," and ends with the words "and for the better payment of their wages." An Act, the title of wliich begins with the words " An Act to amend an Act," and ends with the words "pay- mentoftheworkmen'swages in any other manner than in money." An Act, the title of which begins with the words " An Act to extend the provisions of an Act, "and ends with the words "articles of cutlery." An Act, the title of which begins with the words ' ' An Act to extend the provi- sions," and ends with the words "extending the pro- visions of the said Acts to Scotland and Ireland." An Act to prohibit the pay- ment in certain trades of wages in goods or otherwise than in the current coin of the realm. Extent of Repeal. Section three, and so much of section eight as applies section three. So much of section twelve as applies to any enact- ment repealed by this Act. Sections two and three. The whole Act. The whole Act. Section ten, down to "be produced to the Court and jury " inclusive ; section eleven, section twelve, section fifteen, section sixteen, section eighteen, section nine- teen, ill section twenty the words " or servant in husbandly " ; section twenty-one, section twenty-two, section twenty-four from "and unless the agreement " inclusive to end of sec- tion, and section twenty- five from ' ' all workmen ' ' to " purposes aforesaid " both inclusive, and the schedules. 350 Tin: truck acts. 59 & GO VICT. c. 44 (1896). A)i Act to anu'itd the Truck Acts. Bo it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and ( 'oinnions, in this present ParliamtMit assembled, and by the authority of the same, as follows : Deductions or 1. — (1) An employer shall not make any contract with any workman for payments m ^^^, deduction from the sum contracted to be paid by the employer to the fines. workman, or for any payment to the employer by the workman, for or in respect of any fine, unless — (a) The terms of the contract are contained in a notice kept constantly affixed at such place or places open to the workmen and in such a position that it may be easily seen, read, and copied by any person whom it affects ; or the contract is in writing, signed by the work- man ; and (b) The contract specifies the acts or omissions in respect of which the fine may be imposed, and the amount of the fine or the particulars from which that amount may be ascertained ; and (c) The fine imposed under the contract is in respect of some act or omission which causes or is likely to cause damage or loss to the employer, or interruption or hindrance to his business ; and (d) The amoxmt of the fine is fair and reasonable having regard to all the circumstances of the case. (2) An employer shall not make any such deduction or receive any such payment, unless — (a) The deduction or payment is made in pursuance of, or in accordance with, such a contract as aforesaid ; and (b) Particvilars in writing showing the acts or omissions in respect of which the line is imposed and the amount thereof are supplied to the workman on each occasion when a deduction or payment is made. (3) This section shall apjily to the case of a shop assistant in like manner as it applies to the case of a workman. The fiict that an agreomcnt ia within this section does not oust the jurisdiction of justices under the Employers and W(irkmen Act, 1875 : Buxton Limr. Firms Co., Ltd. V. Noire, [1900] 2 Q. B. 232. A rule forming- part of the contract between a factory owner and his employees provided that " all workers shall ()l)serve good order and decorum while in the factory," and imposed a fine for infrin<;ement : Held, ;\ .sufficient conipliamie with sub-sect. 1 (b) : Squire v. Baijrr cj- Co., [1901] 2 K. B. 299. Doduotio s 2. (1) An employer shall not make any contract with any workman for piiyiricnts in any deduction from the sum contracted to be paid by the employer to the respect of -vporkman, or for any payment to the employer by the workman for or in goS?^ respect of bad or negligent work or injury to the materials or other property of the employer, unless — (a) The terms of the contract are contained in a notice kept constantly affixed at such ])lace or places open to the workmen and in such a THE TRUCK ACTS. 351 position that it may bo easily seen, read, and copied by any person whom it aifects ; or the contract is in writing, signed by the workman ; and (b) The deduction or payment to bo mado under the contract does not exceed the actual or estimated damage or loss occasioned to the employer by the act or omission of the workman, or of some person over whom he has control, or for whom he has by the contract agreed to be responsible ; and (c) The amount of the deduction or payment is fail- and reasonable, having regard to all the circumstances of the case. (2) An employer shall not make any such deduction or receive any such payment unless — (a) The deduction or pajonent is made in pursuance of, or in accordance with, such a contract as aforesaid ; and (b) Particulars in writing showing the acts or omissions in respect of which the deduction or payment is made and the amount thereof are supplied to the workman on each occasion when a deduction or payment is made. 3. — (1) An employer shall not make any contract with any workman for Deductions or any deduction from the sum contracted to be paid by the employer to the payments in workman, or for any payment to the employer by the workman for, or in ^^terial's respect of, the use or supply of materials, tools or machines, standing room, light, heat, or for or in respect of any other thing to be done or provided by the employer in relation to the work or labour of the workman unless — (a) The terms of the contract are contained in a notice kept constantly affixed at such place or places open to workmen, and in such a position that it may be easily seen, read, and copied by any person whom it affects ; or the contract is in writing, signed by the work- man ; and (b) The Slim to be paid or deducted under the contract in respect of materials, tools or machines, standing room, light, heat, or any other thing, does not exceed, in the case of materials or tools supplied to the workman, the actual or estimated cost thereof to the employer, or in the case of the use of machinery, light, heat, or any other thing in this section mentioned, a fair and reasonable rent or charge, having regard to all the circumstances of the case. (2) An employer shall not make any such deduction or receive any such payment, unless — (a) The deduction or payment is made in pursuance of, and in accordance with, such a contract as aforesaid ; and (b) Particulars in writing showing the things in respect of which the deduction or payment is made and the amount thereof are supplied to the workman on each occasion when a deduction or payment is made. 4. If any employer enters into any contract contrary to this Act, or makes Penalty, any deduction or receives any payment contrary to this Act, he shall bo guilty of an offence against the Truck Act, 1831, and shall be liable to the 1 & 2 "Will. 4, penalties imposed by section nine of that Act as if the offence were an offence ^' ' ' in that section mentioned. 3/>2 THE TRUCK ACTS. Recovery of payments or deductions. rfoductiiin of contract. Exemption of contract from stamp duty. Saving as to contracts and payments illefjal under existintr Acts. 1 k 2 Will. 4, c. 37. 50 & 51 Vict. c. 46. 37 & 38 Vi.t. e. 48. .50 & 51 Vict. c. 58. Power to exempt from provisions of Act, 5. Any workuiun or sliop assibtant may recover any suia deducted by or paid to his employer contrary to this Act, provided that proceedings for such recovery are commenced within six months from the date of the dcdviction or payment sought to bo recovered, and that where he has consented to or acquiesced in any such deduction or payment, ho shall only recover the excess which has be^n deducted or paid over the amount, if any, which the Court may find to have been fair and reasonable, having regard t(j all the circumstances of the case. 6. — (1) Every employer who has made any contract purporting or intending to operate as a conti'act under this Act, shall, on diniand in writing by one of her Majesty's inspectors of factories or of mines, jn-oduce the contract or a true copy thereof at any convenient time and place to be named hy the inspector, and the inspector shall be at liberty to take a copy of the same or of any part thereof, and the employer of any workman or shop assistant who is party to any such contract shall at the time of making the contract give the workman or shop assistant a copy of the contract or of the notice containing its terms. (2) A workman or shop assistant who is party to anj' such contract shall be entitled, on request, to obtain from his employer free of charge a copy of the contract or of the notice containing its terms. (3) Every employer who has made any contract purporting or intending to operate as a contract under section one of this Act shall keep a register of deductions or pa^-ments, and .shall enter therein every deduction or payment for or in respect of any fine purporting to be made under any such contract, specifjdng the amount and the nature of the act or omission in respect of which the fine was imposed, and this register shall be at all times open to inspection by one of her Majesty's inspectors of factories or of mines. (4) If any person fails to comply with this section ho shall bo liable on summary conviction to a fine not exceeding forty shillings. 7. A contract entered into \inder the provisions of this Act shall not be liable to stamp duty. 8. Nothing in this Act shall make lawful any contract or payment which is illegal under the Truck Acts, 1831 and 1887, or under the Hosiery Manufa{;ture (Wages) Act, 1874, or affect the provisions of the Coal Mines Regulation Act, 1887, or any amending Act, with respect to persons (smployed in mines and paid according to weight, or make lawful any deduction from payments made to those persons. 9, — (1) The Secretary of State, if satisfied that the provisions of this Act are imnecessarj* for the protection of the workmen employed in any trade or business, or in any branch or department of any trade or business, either generally or within any specified area, may by order under his hand grant an exemption from those provisions in respect of the persons engaged in that trade, business, branch or department, either generally or within that area. (2) The Secretary of State may at any time amend or revoke any such order. (3) Every order made under this section shall bo laid as soon as may be before both Houses of Parliament, and if either House within the next forty THE TRUCK ACTS. days after tho order has been so laid before that House resolves that the order ought to be annulled, the order shall, after the date of that n solution, be of no effect, without prejudice to the validity of anything done in tho meantime under the order or to the making of a new order. See order of March 9th, 1897, and of July 30th, 1897 : St. R. & 0. 1897, pp. 459, 4G0. 353 10. Sub-section two of section thirteen of the Truck Amendment Act, Duties of rs. Vict. 1887 (which relates to the duty of inspectors), shall apply in tho case of a i"spectora laundry, and in the case of any place where work is given out by tho ^ ^q_ occupier of a factory or workshop, or by a contractor, or sub -contractor, in like manner as it applies in the case of a factory. 11. This Act shall come into operation on the first day of January one Commence- thousand eight hundred and ninety-seven. ^^^ ' 12. This Act may be cited as the Truck Act, 1896 ; and the Truck Acts, Short title and 1831 and 1887, and this Act shall be construed together as one Act and may construction. be cited collectively as the Truck Acts, 1831 to 189G. A A 354 CHAPTER y. ACTS RELATING TO CHIMNEY SWEEPERS. Penalty for compelling' or allowing children to climb chimneys. No child under sixteen years to be apprenticed to a chimney sweeper. Regulating construction of chimneys. 3 i& 4 YICT. c. 85 (1840). An Act for the Regulation of Chimney Sweepers and Chimneys {a). 2. Any person who shall compel or knowingly allow any child or young person under the age of twenty-one years to ascend or descend a chimney, or enter a flue, for extinguishing fire therein, shall be liable to a penalty of not more than ten pounds \_or less than five pounds {aa) ]. 3, It shall not be lawful to apprentice to any person using the trade or business of a chimney-sweeper any child under the age of sixteen years, and every indenture of s;ich apprenticeship which may be entered into shall be null and void. Sections 4 and 5 temporary provisions now repealed. 6. And whereas it is expedient, for the better security from accidents from fire or othiTwise, the improved construction of chimneys and flues (o), 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 con- structed with any angle therein which shall be less obtuse than an angle of one hundred and twenty degrees, except as is hereinafter excepted ; and every salient or projecting angle in any chimney or flue shall be rounded off four inches at the least, upon pain of forfeitui-e, 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 fiftj^ pounds : Provided, nevertheless, that, notwithstanding this Act, chimneys or flues (a) The provisions of this Act relating to the construction of chimneys and flues within the area affected by the Metropolitan Building Act, 1844, are repealed by set^t. 1 of that Act, which is itself repealed by the IMetiopolitan Building Act, IH.J ;3. This latter Act is repealed by the Metropolitan Building Act, 1894, which by sect. 64 prescribes "rules ;is to chimneys." The repeal of the Act of 1865 does not revive the pro- visions of this Act repealed by the Act of 1844 : Vide the Interpretation Act, 1889, s. 11, sub-s. (1). [(m) Words in brackets repealed by 37 & 38 Vict. c. 96. LEGISLATION AS TO CHIMNEY SWEEPERS. 355 may be built at angles with each other of ninety degrees and more, such chimneys or flues having therein proper doors or openings not loss than six inches square. 7. All convictions for penalties for any offence against this Act maj' be Before whom had before two or more justices of tbe peace acting for the county, riding, convictions city, borough, division, or place where the offence shall happen, or before ™^^ ? ' the sheriff or stuwart of any county or stewartry in Scotland ; and such j,q^ ^.q y^^ penalties, and the costs and charges attending the recovery thereof, shall bo levied and levied by distress and sale of the goods and chattels of the oSender or person ^PP^i^d. liable or ordered to pay the same respectively, by warrant under the hands and seals of two or more of the said justices, or under the hand of any such sheriff or stewart, rendering 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 empowered and required to grant, upon conviction of the offender by confession, 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, towmship, or place, and in Scotland, 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 over- seer or manager. 8. The justices of the peace or sheriffs or stewarts by whom any person In default of shall be convicted and adjudged to pay any sum of money for any offence pfiyment of against this Act may adjudge that such person shall pay the same, together ^.^^^^ / with costs, either immediately, or within such period as the said justices vieted to bo shall think fit; and, in default of payment at the time appointed, such sent to prison, 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 commit- ment to be determinable upon payment of the amount of the penalty and costs. Section 9 repealed by 37 & 38 Vict. c. 96. Section 10 repealed, except as to Ireland, by 56 & 56 Vict. c. 19. 11. That any person who shall think himself or herself aggrieved by any Appeal, conviction by any justice or jiistices of the peace under this Act may appeal to the next coiu't of general or quarter sessions of the peace . . . . (Z>) 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. 12. No conviction or adjudication made on appeal therefrom shall be Conviction quashed for want of form, or be removed by certiorari or otherwise into any ^ot to ^^ (b) The central part of this section diction Acts, 1879 (see sect. 31) and was repealed as to Enofland by Summary i884 (see sect. 6). See also 5.5 & ",6 Vict. Jurisdiction Act, 18S4. The procedure ,„ . x i t T , tV .1 £3 T ■ c. 19, as to Ireland. 18 now regulated by the Siunmary J lu'is- A A 2 356 LEGISLATION AS TO CHIMNEY SWEEPERS. quashed for want of form. of her Majesty's superior courts of record: [and no warrant of commit- ment shall bo hehl void bj'^ 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] (c). Short titles. Interpreta- tion of terms. This Act to be construed Avith principal Act. Application of penalties. 27 & 28 VICT. c. 37 (1864). An Act to amend and extend the Act for the Regulation of Chimney Sweepers. Oeneral. 1. This Act maybe cited as "The Chimney Sweepers Regulation Act, 1864." " Tho Chimney Sweepers and Chimneys Regulation Act, 1840," and this Act may be cited together as "Tho Chimney Sweepers and Chimneys Regulation Acts, 1840 and 1864." \_Section 2. Commencement. Repealed 38 (fc 39 Vict. c. 66.] 3. In this Act — The term "chimney sweeper" means a person using the trade or busi- ness of a chimney sweeper. 4. This Act shall be construed together with the principal Act as one Act, and for this purpose the expression "this Act," when used in the principal Act, shall be taken to include tho present Act. 5. Any pecuniary penalty recovered under this Act shall be applied as directed in the principal Act. Restriction on employment of children under ten. Chimney sweeper entering houses to sweep chimneys, &c. not to bring \v\\h. him persons under sixteen. Penalties for before-named offences. Power to justices to impose im- prisonment. Protection of Children and Young Persons. 6. It shall not bo lawful for a chimney sweeper to employ a child under the age of ten years to do or assist in doing any work or thing in or aboiit the trade or business of such chimney sweeper, or the yard or building (if anj'^) connected therewith. 7. It shall not be lawful for a chimney sweeper, on any occasion of his entering a house or building for the purpose of sweeping, cleaning, or coring a chimney or flue, therein or belonging thereto, or for extinguishing fire in any such chimney or flue, to cause or knowingly allow a person under the age of sixteen years in his employment or under his control to enter before, with, or after him into any part of such house or building, or to be therein for any part of the time during which such chimney sweeper himself continues therein for any such purpose as aforesaid. 8. If any chimney sweeper acts in contravention of either of the foregoing enactments, he shall for every such offence be liable to a penalty not exceeding ten pounds. 9. Where under section two of the princijial Act a chimney sweeper is convicted of the offence of compelling or knowingly allowing a person under (c) Words in brackets apply to Ireland, but were repealed as to England by the Summary Jurisdiction Act, 1884. See sect. 39, sub-sect. (4), of the Summary Jurisdiction Act, 1879. LEGISLATION AS TO CHIMNEY SWEEPERS. 357 the ago of twenty-one years to ascend or descend a chimney or enter a flue for any purpose in that section mentioned, the justices or sheriff before whom he is convicted may, in lieu of the imposition of any such pecuniary penalty as is authorized by that section, adjudge the offender to be im- prisoned in the common gaol or house of correction for anj' term not exceeding six months, with or without hard labour. 10. In any prosecution of a chimney sweeper for any offence against the Burden of principal Act or against this Act, whore the age of any young person or proof of ago child comes in question, the proof of the age of such young person or child chimnoy shall lie on the defendant. sweeper. 38 & 39 VICT. c. 70 (1875). Ati Act for further amending the Laiv Relating to Chimney Sweepers. Preliminary. 1. This Act may be cited as The Chimney Sweepers Act, 1875. Short title. \_Scction 2. Co7nmencemc>it. Repealed 50 & 57 Vict. c. 54.] 3. This Act shall not extend to Scotland. aII^"^^ "^^ 4. In this Act — t ^ ' interpreta- " Justice " means a justice of the peace or magistrate haying jui'isdiction tion. in the county or place where the matter requii'ing the cognizance of a justice arises. Certificates. 6. The chief officer of police in each police district, as defined in the Certificate to schedule to this Act, may, subject to the proyisions of this Act, issue a ^^ issued by certificate authorizing the person therein named to carry on the business of ^ a chimney sweeper in the district. 6. Eyery person who carries on the business of a chimney sweeper, and Certificate for who employs any journeyman, assistant, or apprentice, shall take out a journeymen certificate as hereinafter mentioned. ^^ ^ ^^^' 7. A person desirous of haying a certificate for a district may apply for Application one to the chief officer of police for the district, by delivering the application ^^^ '^^4 issue at the police station for the district nearest to the applicant's dwelling-place. ° ^^'^ "'^ ^' The application shall be in the form given in the schedule to this Act, or to the like effect, and shall set forth the particulars therein indicated. Thereupon a certificate shall be delivered to the applicant in the form given in the schedule to this Act, or to the like effect, signed by the chief officer of police. 8. Where two or more persons carry on the business of a chimney sweeper Certificate fur in partnership, it shall be sufficient for them to have one certificate for aU partners. the partners, and the forms given in the schedule to this Act may be altered accordingly. 9. Notwithstanding anything in this Act, it shall not be necessary for a Journeyman person who carries on the business of a chimnej' sweeper, in the capacity ^^^ assistant only of a journeyman of or assistant to a master chiumey sweeper, to have '^■''^"^P ®"* 358 LEGISLATION AS TO CHIMNEY SWT^EPERS. Fee on certificate. a cortificato : Provided, that such jouruej'man or assistant does not employ in chimney sweeping any other person as his paid assistant or as his ajipreiitico. 10, Every ])erson to wliom a certificate is issui'd shall on the issue tht-roof jiay a foe of two shillings and sixpence. The fees received shall be applied as penalties under this Act are applicable. But see now Chimucy Sweepers Act, 1894, s. 2. Duration of certificate. Uniform lieriud for certificates. Endorsing certificate when chimney sweeper desii-es to carry on business in another district. Register of certificates. 11. Every certificate shall be dated the day of issue, and shall be in force for one year from its date, and no longer. 12. One of her Majesty's principal Secretaries of State ma\-, if lio thinks fit, direct that all certificates bo made to expire yearly on the same day. If he does so, he shaD provide — (1) In the case of a certificate issued for less than a year, for apportion- ment of the fee payable thereon : (2) For the issiie of a certificate instead of a certificate lost or destroyed, and apportionment of the fee paj-able thereon. 13. The holder of a certificate for one district, who is desirous of currying on the business of a chimney sweejier in any other district, may forward his certificate to the chief oflicer of police for such other district for endorse- ment ; and such chief officer shall thereupon endorse and return it without charging any fee, and a certificate so endorsed shall be of the same validity for such last-mentioned district as if it had been originally issued for the same district. 14. Each chief officer of police shall keep a register of the certificates issued or endorsed by him. It shall be in such form and shall show such i)articulars as one of her Majesty's principal Secretaries of State from time to tiiue directs, and every such register shall be presumed to be in conformity with such directions until the contrary is shown. An entry in it, and a copy of such an entry puiporting to be certified as a true cojiy bj-- the chief officer of police, and a statement purporting to be signed by the chief officer of the absence of such an entry in any case, shall be evidence of the matters therein api:)earing. Penalty for acting- as chimney sweeper with- out certificate. Obligation to give name and address. Offences. 15. Every person who carries on such trade or business of chimney sweeper as is hereinbefore specified without having such certificate shall be guilty of an offence against this Act, and shall, on conviction thereof in a court of summary jurisdiction, be liable for the first offence to a penalty not exceeding ten shillings, and for every subsequent offence to a penalty not exceeding twenty shillings. 16. Every person carrjang on the business of such chimney sweeper as aforesaid shall, when required by any person for whom he acts or offers to act as a chimney sweeper, or by any justice, or constable or peace officer, give his name and address. LEGISLATION AS TO CHIMNEY SWEEPERS. 359 If uuy such person fails so to do, or gives a false name or false address, he shall be guilty of an offence against this Act, and shall, on conviction thereof in a court of summary jurisdiction, bo liable to a penalty not exceeding ten shillings. 17. Whore such person carries on the business of a chimney sweeper as ProdTiction of aforesaid, he shall, on demand, i)roducu and show his certiiicate (if any) to certificute ou , no , i 1 • 1 i- demand, any person for whom he acts or offers to act as a chimney sweeper, and to any justice, or constable or peace officer, and allow it to be read and copied by the person to whom it is produced. If he fails to do so he shall be guilty of an offence against this Act, and shall, on conviction thereof in a court of summary jurisdiction, be liable for the first offence to a penalty not exceeding ten shillings, and for every subsequent off'once to a penalty not exceeding twenty shillings. 18. It shall not be lawfid for a person having a certificate to lend or Certificate transfer it to another. "«* *» ^^ It shall not be lawful for any person to borrow, accept, or use a certificate ° issued to another. If any person acts in contravention of this section he shall be guilty of an offence against this Act, and shall for every such offence, on conviction thereof in a court of summary jurisdiction, be liable to a penalty not exceeding twenty shillings. 19. If any person does any of the folio wing things he shall be guilty of an Penalty for offence against this Act : false repre- . sentations, (1) If he makes, or procures to be made, or aids m making, a false &c, statement or representation, knowing it to be false, in any appli- cation for a certificate : (2) If he fabricates, or counterfeits, or alters, or procui-es to be fabricated, or counterfeited, or altered, or aids in fabricating, or counterfeiting, or altering a certificate : (3) If he carries, produces, or shows, a fabricated, or counterfeited, or altered certificate, knowing it to be such : and every person so offending shall, on conviction thereof in a court of summary juiisdiction, be liable for the first offence to a penalty not exceeding forty shillings, and for every subsequent offence to the Hke penalty, with or without imprisonment for a term not exceeding six months, with or without hard labour, or to such imprisonment alone, with or without hard labour. 20. If any person having a certificate is convicted of an offence against Deprivation the Chimney Sweepers and Chimneys Eegulation Acts, 1840 and 1864, or of certificate „ ,, ,, , • ,- i"" I. T 1 • • i. 1 •.- -J. on conviction either of them, the court or justice before whom he is convicted may, it it mj^^j. former seems fit, deprive him of his certificate for the residue of the current year ; Acts, and if any person not having a certificate is convicted of an offence against the Chimney Sweepers and Chimneys Eegulation Acts, 1840 and 1864, or either of them, the court or justice before whom he is convicted may, if it thinks fit, in addition to imposing any other penalty which it may be authorized to impose, declare him disqualified to hold any certificate under this Act for any term not exceeding one year ; but such deprivation or dis- qualification shall be suspended pending any appeal under section eleven of 360 LEGISLATION AS TO CHIMNEY SWEEPERS. Duty of police to en- force former Acts. the Chimney Sweepers and Chimneys Regulation Act, 1840, and sliall bo in the discretion of the Court of Apjieal in case the conviction is confirmed. 21. The chief officer of police shall enforce and put in execution the Chimney Sweepers and Chimneys Regulation Acts, 1810 and 18()4, without prejudice to the right of any other person to institute proceedings thereunder. Ireland. 22. In Ireland the Lord-Lieutenant shall have power and authority under this Act in lieu of one of her ^Majesty's l*rincii)al Secretaries of State. 23. Penalties recovered in Ireland shall bo ai)pliod according to the Fines Act (Ireland), 1851, or any Act amending the same. Saving for vagrant Act. Saving for local Acts and local authorities. Savings, 24. A person shall not be exempt from the provisions of any Act relating to idle or disorderly persons, or to rogues or vagabonds, hj reason only that he has a certificate under this Act, or assists or accompanies a person having such a certificate. 25. Nothing in this Act shall interfere with the operation of any other Act in force in any city, town, or other place, or take away or abridge any power vested in any local authority by any general or local Act. THE SCHEDULE. PART I. Police Distkicts and Officers. Police District. Chief Officer of Police. In England. The City of London, and the liberties thereof, exclusive of Southwark. The Metropolitan Police District. Any county, any riding, parts, division, or liberty of a county, any borough, or town maintaming a separate police force. The Commissioner of Police of the City. The Commissioner of Police of the Metro- polis. The chief constable or head constable, or other officer, by wliatever name called, having the chief command of the iiolice in the district. In Ireland. The police district of Dublin metropolis. Any district, whether city, town, or county, over which is appointed a sub-inspector of the lloyal Irish Constabulary. Either of the Commissioners of Police for the district. The sub-inspeckor. All the police under one chief constable constitute one police force for the purposes of this schedule. LEGISLATION AS TO CHIMNEY SWEEPERS. 361 PAET II. {Rtjjeakd by Statute Law Etuisiou Act {No. 2), IS93. PAET 111. Forms. [A.)— Application for Certijicate. 1 A. B. Inaines of applicant in fuW] of \jlweUin(j lilace] hereby apply for a certificate under the Chimney Sweepers Act, 1875, to authorise me to act as a chimney sweeper within police district; and I declare that the following statement is true and correct : Names of all Apprentices and others in my Employment. Ages of those under 21. Date and Tei-m of Apprenticeship. A.B. 17 18 . CD. [ ] years. E.F. Dated this day of 18 (Signed) A. B. ( B . ) — Certificate. In pursuance of the Chimney Sweepers Act, 1875, I hereby certifj' that A. B. [iiames of applicant in fiiJl} of , in the county of , is authorised to carry on the business of a chimney sweeper within the police district for one year, reckoned from the date of this certificate. Dated the day of 18 (Signed) C. D., Police Officer. 362 LEGISLATION AS TO CHIMNEY SWEEPERS. .07 & 58 VICT. c. 51 (18U1). Ail Act to make Utter prooision for the Rcgulatiou of Chiiiuiei/ Sweejiers. Penalty for 1- -^'iv porsou who shall lor tho purpose of soliuitiug employmuiit as a the knocking chiiiiiiey swt'L'i)er kuock at tho houses from door to door, or riu"- a bell, or or ringing . . „ . bells. ^i'''^ iiiiy noisy instrument, or to the annoyance of any inhabitant thereof ring the door-bell of any house, or cause anyone to do any of the acts aforesaid, shall be liable on summary conviction to a penalty not exceeding ten shillings for the first offence, and to a penalty not exceeding twenty shillings for every subsequent offence. Application of 2. All fees received under the Chimney Sweepers Act, 1875, in l-;iighuid ' shall be paid to tho pension fund of the police force of the police district in c. 70. which the certificate under tho said Act was issued. Short title and 3. This Act may be cited as "The Chimney Sweepers Act, 1894," and construction. gj^^U be read as one witli tlic Chimney Sweepers Act, 1875. Extent of Act. 4. This Act shall not apply to Scotland. Commence- 5. Tins Act shall come into operation on the first da^' of January one meut of Act. thousand eight hundred and uinetv-five. 363 CHAPTER VI . LABOUR IN MINES. Thk chief Acts dealing with this subject are tlie Coal Mines Regulation Act, 1887, amended by the Acts of 1894, 1896, 1903, and 1905 ; the Metalliferous Mines Regulation Acts, 1872 and 1875; the Quarries Act, 1894; and the Mines (Prohibition of Child Labour Underground) Act, 1900. The main object of this legislation is similar to that of the Factory and Workshop Acts, viz., to protect persons engaged in mining from dangers incident to their occupation. The principal differences between the Coal Mines Regulation Act of 1872 and that of 1887, which replaces it, are these: — (1) The age, under which underground employment of boj^s is prohibited, is raised from ten to twelve ; and is now raised to thu'teen by the Mines (Prohibition of Child Labour Underground) Act, 1900 (6-i & 64 Vict. c. 21) ; (2) Fmiher provisions as to (i) the inspection of mines, (ii) the use of explosives therein, (iii) the qualification of a miner (sect. 49, rr. 38, 12, 39) ; (3) Some changes in the check- weighing clauses (a) ; (4) The sections as to education of children in employment are omitted, this subject being dealt with by the Elementary Education Acts. (See pp. 450 rf scq., infra.) 35 & 36 VICT. 0. 77 (1872). An Act to consolidate and amend the Law relatinij to Metalliferous Mines. Preliminary. 1. This Act maybe cited as "The Metalliferous Mines liegulatiou Act. Short title. 1872." Sectio)i 2. Coimnencement. — Repealed. {a) These are discussed infra in the notes on sects. 12 et seq. 364 METALLIFEROUS MINES REGULATION ACT, 1872. Application of Act. 3. This Act shall apply to every mine {h) of whatever description other than a mine to which the Coal Klines Regulation Act, 1872, applies. EmplojTiieijt of womeu and cliildren. Hours of em- ploj'ment of male young persons. Register to be kejjt by owner, &c., of boys and male young persons employed in mines. PART I. Employment of Women, Yoantj Persons, and Children. 4. No boy under the age of twelve years (c), and no girl or woman of any age, shall be employed in or allowed to be for the purpose of employment in any mine to wliicli this Act applies below ground. 5. A male young person of the age of thirteen and under the ago of sixteen years shall not bo employed in or allowed to be for the purpose of employment in any mine to which this Act applies below ground for moro than fifty-four hoiu'S in any one week, or more than ten hours in any one day, or otherwise than in accordance with the regulations following ; that is to say, (1) There shall bo allowed an interval of not less than eight hours between the period of employment on Friday and the period of employment on the following Saturday, and in other cases of not less than twelve hours between each period of employment ; provided always, that in the case of young male persons whose employment is at such distance from their ordinary place of residence that they do not return there during the intervals of labour, and who are not employed during more than forty hours in any week, an interval of not less than eight hours shall be allowed between each period of employment : (2) The period of each employment shall bo deemed to begin at the time of leaving the stirface, and to end at the time of returning to the surface : (3) A week shall bo deemed to begin at midnight on Saturday night, and to end at midnight on the succeeding Saturday night. 6. The owner {d) or agent of every mine to which this Act applies shall keep in the office at the mine, or in the principal office of the mine belonging to the same owner in the district in which the mine is situated, a register, and shall cause to be entered in such register the name, age, residence, and date of first employment of [all boys of the age of twelve and under the aye of thirteen years (c), and of] aU male young persons of the age of thirteen and under the age of sixteen years who are employed in the mine below ground, and of all women, young persons, and children employed above ground in (h) See sect. 3 of Mines (Coal) Regu- lation Act, 1 887. A slate quarry worked by means of underground workings and levels, within the Act: Sim v. Frans (1875), 23 W. R. 730. See as to differ- ence between "mine" and "quarry," and the meaning of "minerals," JMl V Wilson (18G5). 35 L. J. Ch. 337 ; and, on appeal, L. R. 1 Ch. 303; Att.-Gen. of Isle of Man v. Mylcchrccst (1879), 4 A. C. 294 ; Lord Provost of Glasyow v. Farie (1888), 13 A. C. 657; Midland Rail. Co. V. Robinson (1889), 15 A. C. 19; In re an Arbitration bctivcen Todd, Birleston &; Co. and the North Eastern Rail. Co., [1903] 1 K. B. G03. See Quarries Act, 1894, bs. 1, 2, infra. (f) The ajre is raised to thirteen by the Mines (I'rohibition of Child Labour Underground) Act, 1900 ; so that no "boy" may now be employed under- ground — only "male young persons" and adults. [d) See sect. 41. " Owner" does not, as in the Coal Mines Act (s. 75), include a contractor. METALLIFEROUS MINES REGULATION ACT, 1872. -^65 connexion witli a mine, and shall produce snch register to any inspector under this Act at the mine at all reasonable times when required by him, and allow him to inspect and copy the same. The immediate employer of every [hoy or^ male young person of the ages aforesaid, other than the owner or agent of the mine, before he causes such \loy or'] male young person to be in any mine to which this Act applies below ground, shall report to the owner or agent of such mine, or some person appointed by such owner or agent, that he is about to employ him in such mine. The words in italics no longer apply : see note (c) on sect. 4, supra. 7. Where there is a shaft (^'), inclined plane, or level in any mine to which As to employ- this Act applies, whether for the purpose of an entrance to such mine or of persons^ under^ a communication from one part to another part of such mine, and persons eighteen in are taken up, down or along such shaft, plane, or level by means of any ^th'^e^g-Jje.s engine, windlass, or gin, driven or worked by steam or any mechanical power, or by an animal, or by manual labour, a person shall not be allowed to have charge of such engine, windlass, or gin, or of any part of the machinery, ropes, chains, or tackle connected therewith, unless he is a male of at least eighteen years of age. Where the engine, windlass, or gin is worked by an animal, the person under whose direction the driver of the animal acts shall, for the purposes of this section, be deemed to be the person in charge of the engine, windlass, or gin, but such driver shall not be under twelve years of age. 8. If any person contravenes or fails to comply with any provision of this Penalty for Act with respect to the employment of women, girls, young persons, or boys, q™^ e° son or to the register of or report respecting boj^s and male young persons, or to contrary to the employment of persons about any engine, windlass, or gin, he shall be ^ ^^ ^'^''• guilty of an offence against this Act ; and in case of any such contravention or non-compliance by any person whomsoever in the case of any mine, the owner and agent of such mine shall each be guilty of an offence against this Act, unless he proves that he had taken all reasonable means by publisliing and to the best of his power enforcing the provisions of this Act to prevent such contravention or non-compliance. If it appear that a boy or young person or a person employed about an engine, windlass, or gin, was employed on the representation of his parent or guardian that he was of that age at which his employment would not be in contravention of this Act, and imder the belief in good faith that he was of that age, the owner or agent of the mine and the immediate emjjloyer shall be exempted from any penalty, and the parent or guardian shall, for such misrepresentation, be deemed guilty of an offence against this Act. Wages. 9. No wages shall be paid to any person emijloyed in or about any mine Prohibition of to which this Act applies at or within any public house, beer shop, or place P^y°i^ii^ of for the sale of any spirits, wine, beer, cyder, or other spirituous or fermented public-houses, &c. {$) See sect. 41. 366 METALLIFEKOIJS iMINES REGULATION ACT, 1872. Notice of accidents in mines to be sent to in- spector. Notice of opening and abandonment of mine to be piven to inspector. Uquor, or other house of entertainment, or any office, garden, or place belonging or contiguous thereto, or occupied therewith. Every "person who contravenes or fails to comply with, or permits any person to contravene or fail to comply with, this section shall bo guilty of an offence against this Act, and in the event of any such contravention or non- compliance in the case of any mine by any person whomsoever the owner and agent (/) of such mine shall each be guilty of an offence against this Act, unless he prove that he had taken all reasonable means by publishing and' to the best of his power enforcing the provisions of this section to prevent such contravention or non-compliance. See p. 126, supra. Returns, Notices, and Abandonment. 10. [Repealed by 38 & 39 Vict. c. 39, s. 1.]. See p. 383, infra. 11. Where in or about any mine to which this Act applies, whether above or below ground, any accident occurs which either — (i) causes loss of life to any person employed in or about the mine ; or (ii) causes any fracture of the head or of any limb, or any dislocation of a limb, or any other serious personal injury to any person employed in or about the mine ; or (iii) is caused by any explosion of gas or coal dust, or any explosive, or by electricity or by overwinding, or by any other such special cause as the Secretary of State specifies by order, and causes any personal injury whatever to any person employed in or about the mine, the owner or agent of the mine shall forthwith send notice in writing of the accident, and of any loss of life or personal injmy caused thereby, to the in- spector of the district in such form and accompanied by such particulars as the Secretary of State prescribes (/). "WTiere any personal injury, of which notice is required to be sent under this section, results in the death of the person injured, notice in writing of the death shall be sent to the inspector of the district on behaK of a Secretary of State within twenty-four hours after such death comes to the knowledge of the owner or agent. Every owner or agent who fails to act in compliance with this section shall be o-uilty of an offence against this Act. For " penalties," see p. 378, infra. The Notice of Accidents Act, 1894 {vide sect. 0), does not apply to mmes. (See p. 435, infra.) 12. In any of the following cases, namely, (1) Where any working is commenced for the purpose of opening a new shaft for any mine to which this Act applies ; (/) In sect. 11 of Coal Mines Regulation Act, 1887, " owner, agent and manager." ( f) Down to this point this section is new by virtue of the Notice of Accidents Act 1906, s. '2 (printed at p. 859, infra), which repeals the original provisions and substitutes those given above. And see sect. 5 of that Act, as to notices of " danfcrous occurrences," and sect. 3 as to notice of accidents on mine railway sidings. METALLIFEROUS MINES REGULATION ACT, 1872. 367 (2) Where a shaft of any mine to which this Act applies is abandoned or the working thereof discontinued ; (3) Whore the working of a shaft of any mine to which this Act applies is recommenced after any abandonment or discontinuance for a period exceeding two months ; or (4) Where any change occurs in the name of, or in the name of the owner or agent of, a mine to which this Act applies, or in the officers of any incorporated company which is the owner of a mine to which this Act api^lies ; the owner or agent of such mine shall give notice thereof to the inspector of the district within two months after such commencement, abandonment, discontinuance, recommencement, or change, and if such notice is not given, the owner or agent shall bo guilty of an offence against this Act. Provided that — (1) This section shall apply only to any working or mine in which more than twelve persons are ordinarily employed below ground ; and (2) In the case of a partnership working a mine within the stannaries of Devon and Cornwall, if notice of every change in the purser of the partnership is sent as requii-ed by this section, notice of a change in the members of such partnership need not be sent in pursuance of this section. 13. Where any mine to which this Act applies is abandoned or the Fencing of working thereof discontinued, at whatever time such abandonment or dis- ^R^i^^^^oi^ed ° mine, continuance occurred, the owner thereof, and every other person interested in the minerals of the mine, shall cause the top of the shaft and any side entrance from the surface to be and to be kept securely fenced for the pre- vention of accidents. Provided that — (1) Subject to any contract to the contrary', the owner of the mine shall, as between him and any other person interested in the minerals of the mine, be liable to carry into effect this section, and to pay any costs incurred by any other person interested in the minerals of the mine in carrying this section into effect : (2) Where such abandonment or discontinuance has occurred in the case of a mine before the passing of this Act, this section shall apply only to such shaft or side entrance of the mine as is situate within fifty yards of any highway, road, footpath, or place of public resort, or in open or unenclosed land, or not being situate as aforesaid, is required by an inspector in writing to be fenced, on the ground that it is specially dangerous : (3) Nothing in this section shall exempt any person from any liability under any other Act, or otherwise. If any person fail to act in conformity with this section he shall be guilty of an offence against this Act. Any shaft or side entrance which is not fenced as required by this section, and is within fifty yards of any highway, road, footpath, or place of public resort, or is in open or unenclosed land, or is required by an inspector as aforesaid to be fenced, shall be deemed to be a nuisance within the meaning 368 METALLIFEROUS MINES REGULATION ACT, 1872. Plaus of abandoned mines to be sent to Secretary of State. Appointment of inspectors of mines. Disqualifica- tion of persons as inspectors. of section 8 of the Nuisances Romoval Act for England, 1855, as amended and extended by the Sanitary Act, 1866 ((/). This section applies to mines abandoned before the Act came into operation : titott V. Dickinson (1876), 34 L. T. (N. S.) 291. The owners of mines and minerals demised them for a term of years subject to rent or royalties ; they had a lien upon the minerals rai.ned for such rent ; lessees cea.sed working the mine, and allowed it to remain insufficiently fenced : Held, that though the lease was still in operation, the owners were liable : Evans v. Mostyn (1877), 2 C. P. D. 547. A wall surrounding an enclosed space, within which, at a distance of forty-five yards from the wall, is the side entrance of a disused mine, is not sufficient ; the entrance it.self must be fenced : Foster v. Ou-en (1892), 62 L. J. M. C. 7 ; KhhcIccj v. Redruth literal District Council, [1904] 1 K. B. 382; see note on definition of "owner," sect. 41, infra. 14. Where any miuo to whicli this Act applies in which more than twelve per.s(jns have ordinarily been employed below ground is abandoned, the owner of such mine at the time of the abandonment shall, within three months after such abandonment, send to a Secretary of State an accurate plan, on a scale of not less than a scale of two chains to one inch, or on such other scale as the plan last used in the mine is constructed on, showing the boundaries of the workings of such mine up to the time of the abandon- ment,. with the view of its being preserved under the care of the Secretary of State; but no person other than an inspector shall be at liberty to inspect or to copy such plan within ten years of its receipt by the Secretary of State without the license of such Secretary of State. Every person who fails to comply with this section shall be guilty of an offence against this Act. Inspection. 15. A Secretary of State may from time to time appoint any fit persons to be inspectors of mines to which this Act applies, and assign them their duties, and may award them such salaries as the Commissioners of Iler Majesty's Treasury may approve, and may remove such inspectors. Notice of the appointment of every such inspector shall be published in the London Gazette. Any such inspector is referred to in this Act as an inspector, and the inspector of a district means the inspector who is for the time being assigned to the district or portion of the United Kingdom with reference to which the term is used. Any person appointed or acting as inspector under the Coal Mines Regu- lation Act, 1887, if directed by a Secretary of State to act as an inspector under this Act may so act and shall be deemed to be an inspector under this Act. 16. Any person who practises or acts or is a partner of any person who practises or acts as a land agent or mining engineer, or as a manager, viewer, a"-ent, or valuer of mines, or arbitrator in any differences arising between owners, agents, or managers of mines, or is otherwise employed in or about any mine (whether such mine is one to which this Act applies or not), shall not act as an inspector of mines under this Act. ig) Both Acts superseded by Pubhc Health Act, 1875 : see sects. 91 and 313, and Sched. V., Pt. I. METALLIFEROUS MINES REGULATION ACT, 1872. 369 17. Au inspector under this Act shall have power to do all or any of the Powers of following things ; namely, inspectors. ( 1 ) To make such examination and inquiry as may be necessary to ascer- tain whether the provisions of this Act relating to matters above ground or below gi'ound are comjilied with in the case of any mine to which this Act applies : (2) To enter, inspect, and examine any mine to which this Act applies, and every part thereof, at all reasonable times by day and night, but so as not to impede or obstruct the working of the said mine : (;>) To examine into and make inc^uiry respecting the state and condition of any mine to which this Act applies, or any part thereof, and the ventilation of the mine, and the sufficiency of the special rules (if any) for the time being in force in the mine, and all matters and things connected with or relating to the safety of the persons employed in or about the mine or any mine contiguous thereto : (4) To exercise such other powers as may be necessary for can-ying this Act into effect. Every person who wilfully obstructs any inspector in the execution of his duty under this Act, and every owner and agent of a mine who refuses or neglects to furnish to the inspector the means necessary for making any entry, inspection, examination or inquiry under this Act in relation to such mine, shall be guilty of an offence against this Act. 18. If in any respect (which is not provided against by any express pro- Notice to be vision of this Act, or by any special rule) any inspector find any mine to Rectors of which this Act applies, or any part thereof, or any matter, thing, or practice causes of in or connected with any such mine, to be dangerous or defective, so as in pi-o^^edfor his opinion to threaten or tend to the bodily injury of any person, such by the rules, inspector may give notice in writing thereof to the owner or agent of the mine, and shall state in such notice the particulars in which he considers such mine, or any part thereof, or any matter, thing, or practice, to be dangerous or defective, and require the same to be remedied ; and unless the same be forthwith remedied the inspector shall also report the same to a Secretary of State. If the owner or agent of the mine objects to remedy the matter complained of in the notice, he may, within twenty days after the receipt of such notice, send his objection in writing, stating the grounds thereof, to a Secretary of State ; and thereupon the matter shall be determined by arbitration in manner pro'V'ided by this Act ; and the date of the receipt of such objection shall be deemed to be the date of the reference. If the owner or agent fail to comply either with the requisition of the notice, where no objection is sent within the time aforesaid, or with the award made on arbitration, within twenty days after the expiration of the time for objection or the time of making of the award (as the case may be) he shall be guilty of an ofience against this Act, and the notice and award shall respectively be deemed to be written notice of such offence. Provided that the Court, if satisfied that the owner or agent has taken active measures for complying with the notice or award, but has not, with reasonable diligence, been able to complete the works, may adjourn any M. B B 370 METALLIFEROUS MINES REGULATION ACT, 1872. Plans of mines to be kept. Inspector to make an annual report and special ro])ort when directed. procoedings taken before thoni for punishing such offence, and, if the works are completed within a reasonable time, no penalty shall be inflicted. No liersou shall be precluded by any agreement from doing such acts as may bo necessary to comply with the provisions of this section, or bo liable under any contract to any penalty or forfeiture for doing such acts. 19. The owner or agent of every mine to which this Act applies shall keep in the office at the mine, or in the jirincipal office of the mines belonging to the same owner in the district in which the mine is situated, an accurate plan of the workings of such mine, showing the workings up to at least six months previously, other than workings which were last discontinued at a date more than twelve months before the commencement of this Act. The owner or agent of the mine shall produce to an inspector under this Act, at one of the aforesaid offices, such plan, and shall, if requested by the inspector, mark on such plan the progress of the workings of the mine vip to the time of such production, and shall allow the inspector to examine the same. Tf the owner or agent of any mine fails to keep such plan as is prescribed by this section, or wilfuUj' refuses to produce or allow to be examined such plan, or wilfully withholds anj' portion of any plan, or conceals any part of the workings of his mine, or produces an imperfect or inaccurate plan, unless he shows that he was ignorant of such concealment, imperfection, or inaccuracy, he shall be guilty of an ofJence against this Act ; and, further, the inspector may, by notice in writing (whether a penalty for such offence has or has not been inflicted), require the owner or agent to cause an accurate plan, such as is prescribed by this section, to be made within a reasonable time, at the expense of the owner of the mine, on a scale of not less than a scale of two chains to one inch, or on such other scale as the plan used in the mine is constructed on. If the owner or agent fails within twenty days, or such further time as may be shown to be necessary, after the requisition of the inspector, to make or cause to be made such plan, he shall bo guilty of an offence against this Act. Provided that this section shall aj^tply only to a mine to which this Act applies, and in which more than twelve persons are ordinarily employed below ground. 20. Every inspector under this Act shall make an annual report of his proceedings diuing the preceding year to a Secretary of State, which report shall be laid before both Houses of Parliament. A Secretary of State may at any time direct an inspector to make a special report with respect to any accident in a mine to which this Act applies, which accident has caused loss of life or personal injury to any person, and in such case shall cause such report to be made public at such time and in such manner as he thinks expedient. A rbitration. Provisions as 21. "With I'e.spoct to arbitrations under this Act, the following provisions to arbitration, ^-^.^n ]^avo effect : (1) The parties to the arbitration are in this section deemed to be the METALLIFEROUS MINES REGULATION ACT, 1872. owner or agent of the mine on the one hand, and an inspector of mines on behalf of the Secretary of State on the other : (2) Each of the parties to the arbitration may, within twenty-one days after the date of the reference, appoint an arbitrator : (3) No person shall act as arbitrator or umpire under this Act who is employed in, or in the management of, or is interested in the mine to which the arbitration relates : (4) The appointment of an arbitrator under this section shall be in writing, and notice of the appointment shall be forthwith sent to the other party to the arbitration, and shall not be revoked without the consent of such other party : (5) The death, removal, or other change in any of the parties to the arbitration shall not affect the proceedings under this section : (6) If within the said twenty-one days either of the parties fail to appoint an arbitrator, the arbitrator appointed by the other party may proceed to hear and determine the matter in difference, and in such case the award of the single arbitrator shall be final : (7) If before an award has been made any arbitrator appointed by either party die or become incapable to act, or for fourteen days refuse or neglect to act, the party by whom such arbitrator was appointed may appoint some other person to act in his place ; and if he fail to do so within fourteen days after notice in writing from the other party for that purpose, the remaining arbitrator may proceed to hear and determine the matters in difference, and in such case the awai'd of such single arbitrator shall be final : (8) In either of the foregoing cases where an arbitrator is empowered to act singly, upon one of the parties failing to apj^oint, the party so failing may, before the single arbitrator has actually proceeded in the arbitration, appoint an arbitrator, who shall then act as if no failure had been made : (9) If the arbitrators fail to make their award within twenty-one days after the day on which the last of them was appointed, or within such extended time (if any) as may have been appointed for that purpose by both arbitrators under their hands, the matter in difference shall be determined by the umpire appointed as herein- after mentioned : (10) The arbitrators, before they enter upon the matters referred to them, shall appoint by writing under their hands an umpire to decide on points on which they may differ : (11) If the umpire die or become incapable to act before he has made his award, or refuses to make his award within a reasonable time after the matter has been brought within his cognizance, the persons or person who appointed such umpire shall forthwith appoint another umpire in his place : (12) If the arbitrators fail or refuse or for seven days after the request of either party neglect to appoint an umpire, then on the application of either party an miipire shall be appointed by the chairman of the general or quarter sessions of the peace within the jurisdiction of which the mine is situate : BB 2 371 372 METALLIFEROUS MINES REGULATION ACT, 1872. (i;j) The decision of every umpire on the matters referred to hiui shall bo final: (14) If a single arbitrator fail to make his award within twenty-one days after the day on which he was appointed, the party who appointed him may appoint another arbitrator to act in his place : (15) The arbitrators and their umpire, or any of them, may examine the parties and their witnesses on oath, they may also consult any counsel, engineer, or scientific person whom they may think it expedient to consult : (IG) The payment, if any, to be made to any arbitrator or umpire for his services shall be fixed bj' the Secretary of State, and together with the costs of the arbitration and award shall be paid by the parties or one of them according as the award may direct. Such costs may be taxed by a master of one of the superior courts, who, on the written application of either of the parties, shall ascertain and certify the proper amount of such costs. The amount, if any, paj'able by the Secretary of State shall bo paid as part of the expenses of inspectors under this Act. The amount, if any, payable by the owner or agent may in the event of non-pajonent be recovered in the same manner as penalties under this Act : (17) Every person who is appointed an arbitrator or umpii-e under this section shall bo a pi\actical mining engineer, or a person acciistomed to the working of mines, but when an award has been made under this section the arbitrator or umi)ire who made the same shall be deemed to have been duly qualifi(Ml as provided by this section. Coroners. Provisions as 22. With respect to coroners' inquests on the bodies of persons whose to coroners death may have been caused by explosions or accidents in mines to which inquests on • j r deaths from this Act applies, the following provisions shall have effect : accidents in -,-,■,■ i ^ -, v i miues. (1) Where a coroner holds an inquest upon a body oi any person whose death may have been caused by any explosion or accident, of which notice is required by this Act to be given to the inspector of the district, the coroner shall adjourn such inquest unless an inspector, or some person on behalf of a Secretary of State, is present to watch the proceedings : (2) The coroner, at least four days before holding the adjourned inquest, shall send to the inspector of the district notice in writing of the time and place of holding the adjourned inquest : (3) The coroner, before the adjournment, may take evidence to identify the body, and may order the interment thereof : (4) If an explosion or accident has not occasioned the death of more than one person, and the coroner has sent to the inspector of the district notice of the time and place of holding the inquest not less than forty-eight hours before the time of holding the same, it shall not be imperative on him to adjourn such inquest in pursuance of this section, if the majority of the jury think it unnecessary so to adjourn : METALLIFEROUS MINES REGULATION ACT, 1872. ^^^ (5) An inspector shall be at liberty at any such inquest to examine any witness, subject nevertheless to the order of the coroner: (6) Where evidence is given at an inquest at which an inspector is not present of any neglect as having caused or contributed to the explosion or accident, or of any defect in or about the mine appearing to the coroner or jury to require a remedy, the coroner shall send to the inspector of the district notice in writing of such neglect or default : (7) Any person having a personal interest in or employed in or in the management of the mine in which the explosion or accident occurred shall not be qiialified to serve on the jury empannelled on the inquest; and it shall be the duty of the constable or other officer not to summon any person disqualified under this provision, and it shall be the duty of the coroner not to allow any such person to be sworn or to sit on the jury. Every person who fails to comply Avith the provisions of this section shall be guilty of an offence against this Act. PAET II. EULES. GenerafRuJes. 23. The following general rules shall, so far as may be reasonably prac- General rules, ticable {h), be observed in every mine to which this Act applies : (1) An adequate amount of ventilation shall be constantly produced in Veutilation. every mine to such an extent that the shafts, winzes, sumps, levels, under- ground stables, and working places of such mine, and the travelling roads to and fiom such working places, shall be in a fit state for working and passing therein. See note on General Rule (1), sect. 49, Coal Mines Regulation Act, 18S7, infra. (2) Gunpowder or other explosive or inflammable siibstance shall only be used underground in the mine as follows : (a) It shall not be stored in the mine : (b) It shall not be taken into the mine, except in a case(/) or canister containing not more than foiu- pounds : (c) A workman shall not have in use at one time in any one place more than one of such cases or canisters : (h) Seenoteonsamewordsinsect. 49 of stantial thing of wood or metal or some Coal Mines Regulation Act, 1887, infra. other such solid substance;" a bag is {i) " ' Case' must mean a case in the not sufficient: Foster v. Diphwi/s Casson nature of a canister .... a solid sub- Slatv Co. (1887), 18 Q. B. D. 428. 374 METALLIFEROUS MINES REGULATION ACT, 1872. (d) In charging holes for blasting, except in mines excepted from the ojicrution of this section by the Secretary of State, an iron or steel pricker shall not be used, and a person shall not have in his possession in the mine underground any ii-on or steel pricker, and an iron or steel tamping rod or stemmer shall not be used for ramming either the wadding or the first part of the tamping or stemming on the powder : (e) A charge of powder which has missed fii'C shall not be unrammed. (3) Every underground i)lane on which persons travel, which is self- acting, or worked by an engine, windlass, or gin, shall be provided (if exceeding thirty yards in length) with some proper moans of signalling between the stopping places and the ends of the plane, and shall bo prt)vided in every case, at intervals of not more than twenty j'ards, with suflicient man-holes for places of refuge. (4) Every road on which persons travel underground, where the produce of the mine in transit exceeds ten tons in any one horu" over any jiart tlieroof, and where the load is drawn by a horse or other animal, shall l)c provided, at intervals of not more than one hundred ^'ards, with suflicient spaces for places of refuge, each of which spaces shall be of suflBcient length, and of at least three feet in width between the waggons rvmning on the tramroad and the side of the road ; and the Secretary of State may, if he see fit, reciuirc the inspector to certify whether the pi-oduce of the mine in transit on the road aforesaid docs or does not ordinarily exceed the weight as aforesaid. (5) Every man-hole and space for a place of refuge shall bo constantly kept clear, and no person shall place anything in a man -hole ov such space so as to prevent access thereto. (6) The top of every shaft which was opened before the commencement of the actual working for the time being of the mine, and has not been used during such actual working, shall, if so required in writing by the inspector ■ of the district, be securely fenced, and the top of every other shaft which for the time being is out of use, or used only as an air shaft, shall be securely fenced. (7) The toji and all entrances between the top and bottom of every working or pum])ing shaft shall be properly fenced, but this shall not be taken to forbid the temporary removal of the fence for the puri:)oso of repairs or other operations, if proper precautions are used. (8) Where the natural strata are not safe, every working or pumping shaft shall be securely cased, lined, or otherwise made secure. (9) "VMicre one portion of a shaft is used for the ascent and descent of persons b,>' ladders or a man-engine, and another portion of the same shaft is used for raising the material gotten in the mine, the first-mentioned portion shall be cased or otherwise securely fenced off fiom the last- mentioned portion. (10) Every working shaft (,/) in which persons are raised shall, if exceed- ing fifty yards in depth, and not exempted in writing by the inspector of {J) This term includes a shaft from which a tuuuel is being driven, though no ore is yet beiug got: Foster v. North Uendre Mining Co., [1891] 1 Q. B. 71. METALLIFEROUS MINES REGULATION ACT, 1872. 375 the district, be provided with guides and some proper means of communi- cating distinct and definite signals from the bottom of the shaft and from every entrance for the time being in work between the surface and the bottom of the shaft to the surface, and from the surface to the bottom of the shaft and to every entrance for the time being in work between the surface and the bottom of the shaft. (11) A sufficient cover overhead shall be used when lowering or raising persons in every working shaft, except where it is worked by a windlass, or where the person is employed about the pump or some work of repair- in the shaft, or where a written exemption is given by the inspector of the district. Miners improperly using an uncovered skip for ascension to the surface were held guilty of an offence against this rule : Frecheville v. Sonden (1883), 48 L. T. (N. S.) 612. (12) A single linked chain shall not be used for lowering or raising persons in any working shaft or plane except for the short coupling chain attached to the cage or load. (13) There shall be on the drum of every machine used for lowering or raising persons such flanges or horns, and also, if the drum is conical, such other appliances, as may be sufficient to prevent the rope from slipping. (14) There shall be attached to every machine worked by steam, water, or mechanical power, and used for lowering or raising persons, an adequate break, and also a proper indicator (in addition to any mark on the rope) which shows to the person who works the machine the position of the cage or load in the shaft. (15) A ladder permanently used for the ascent or descent of persons in the mine shall not be fixed in a vertical or overhanging position, and shall be inclined at the most convenient angle which the space in which the ladder is fixed allows, and every such ladder shall have substantial platforms at intervals of not more than twenty yards. (16) If more than twelve persons are ordinarily employed in the mine below ground, sufficient accommodation shall be provided above ground near the principal entrance of the mine, and not in the engine-house or boiler-house, for enabling the persons employed in the mine to conveniently dry and change their dresses. (17) Every fly-wheel and all exposed and dangerous parts of the machinery used in or about the mine shall be and be kept securely fenced. (18) Every steam boiler shall be provided with a proper steam gauge and water gauge, to show respectively the pressure of steam and the height of water in the boiler, and with a proper safety valve. (19) No person shall wilfully damage, or without proper authoritj' remove or render useless, any fencing, casing, lining, guide, means of signalling, signal, cover, chain, flange, horn, break, indicator, ladder, platform, steam gauge, water gauge, safety valve, or other appliance or thing provided in any mine in compliance with this Act. Eveiy person who contravenes or does not comply with any of the general rules in this section shall be guilty of an offence against this Act, and in the event of any contravention of or non-compliance with any of the said general rules in the case of any mine to which this Act applies, by any person whom- 370 METALLIFEROUS MINES REGULATION ACT, 1872. soever, being provud, the owner and agent of such mine sliall each be guilty of an offence again.st this Act, unless ho proves that he had taken all reason- able means by publishing and to the best of his power enforcing the said rules as regulations for the working of the mine to prevent such contravention or non-compliance. See note on sect. 50 of Coal Mines Regulation Act, 1887, infra. Si)ecial rules. Contravention of special rules. Special Rules. 24. The OAvner or agent of any mine to which this Act applies may, if he think fit, transmit to the inspector of the district, for ajijii'Dval by a Secretary of State, rules (referred to in this Act as special rules) for the conduct and guidance of the persons acting in the management of such mine, or employed in or about the same, so as to prevent dangerous accidents, and to provide for the safety and proj^er discipline of the peivsons employed in or about the mine, and such special rules, when established, shall be signed by the inspector who is inspector of the district at the time such rules are established, and shall be observed in and about everj^ such mine in the same manner as if they were enacted in this Act. If any person who is bound to observe the special rules established for any mine acts in contravention of or fails to comply with any of such sjiecial rules, he shall be guilty of an offence against this Act, and also the owner and agent of such mine shall each be guilty of an offence against this Act, unless he proves that he had taken all reasonable means by publishing and to the best of his power enforcing the said rules as regulations for the working of the mine to prevent such contravention or non-comi^liance. See note on sect. 51, sub-sect. (3), of Coal Mines Regulation Act, 1887. Establishment of special rules. Secretarj' of State may object to special rules. 25. The proposed special rules, together with a printed notice specifying that any objection to such rules on the gi-ound of anything contained therein or omitted therefrom may be sent by any of the persons emploj'ed in the mine to the inspector of the district, at his address, stated in such notice, shall, during not less than two weeks before such rules are trans- mitted to the inspector, be posted up in like manner as is provided in this Act respecting the publication of special rules for the information of persons emploj-ed in the mine, and a certificate that such rules and notices have been so posted up shall bo sent to the insi^cctor with the rules signed by the person sending the same. If the rules are not objected to by the Secretary of State within forty days after their receipt by the inspector they shall be established. If the owner or agent makes any false statement with respect to the posting uj) of the rul<;s and notices ho shall be guilty of an oft'ence against this Act. 26. If th(^ Secretary of State is ol' opinion that tlii^ proposed special rules so transmitted, or any of them, do not sullicieutly provide for the preven- tion of dangerous accidents in the mine, or for the safety of the persons employed in or about the mine, or are unreasonable, he may, within forty days after the rules are received by the inspector, object to the rules, and METALLIFEROUS MINES EEGULATION ACT, 1872. 377 propose to the owner or agent in writing any modifications in the rules by way either of omission, alteration, substitution, or addition. If the owner or agent do not, within twenty days after the modifications proposed by the Secretary of State are received by him, object in writing to them, the proposed special rules, with such modifications, shall be established. If the owner or agent sends his objection in writing within the said twenty days to the Secretary of State, the matter shall be referred to arbitration, and the date of the receipt of such objection by the Secretary of State shall be deemed to be the date of the reference, and the rules shall be established as settled by an award on arbitration. 27. After special rules are established under this Act in any mine, the ^^^'^"f^Xs.*'* owner or agent of such mine may from time to time propose in writing to the inspector of the district for the approval of a Secretary of State any amendment of such rules or any new special rules, and the provisions of this Act with respect to the original special rules shall apply to all such amendments and new rules in like manner, as near as may be, as they apply to the original rules. A Secretary of State may from time to time propose in writing to the owner or agent of a mine in which there are no special rules, any special rules, and to the owner or agent of a mine in which there are special rules, any new special rules, or any amendment to such special rules, and the provisions of this Act with respect to a proposal of the Secretary of State for modifying the special rules transmitted by the owner or agent of a mine shall apply to all such proposed special rules, new special rules, and amend- ments in like manner, as near as may be, as they apply to such proposal. 28. For the purpose of making known the special rules (if any) and the Publication of provisions of this Act to all persons employed in and about each mine to abstract of which this Act applies, an abstract of the Act supplied, on the application of this Act. the owner or agent of the mine, by the inspector of the district on behalf of a Secretary of State, and an entire copy of the special rules (if any) shall be published as follows : (1) The owner or agent of such mine shall cause such abstract and rules (if an J'), with the name and address of the inspector of the district, and the name of the owner or agent appended thereto, to be posted up in legible characters, in some conspicuous place at or near the mine, where they may be conveniently read by the persons em- ployed ; and so often as the same become defaced, obliterated, or destroyed, shall cause them to be renewed with all reasonable despatch : (2) The owner or agent shall supply a printed copy of the abstract and the special rules (if any) gratis to each person employed in or about the mine who applies for such copy at the office at which the persons immediately employed by such owner or agent are paid : (3) Every copy of the special rules shall be kept distinct from any rules which depend only on the contract between the employer and employed. If any owner or agent fail to act in compliance with this section he shall be "-uilty of an oli'ence against this Act, but the owner shall not be deemed 378 METALLIFEROUS MINES REGULATION ACT, 1872. Puuishmeut for defacing uotices. Certified coj)}' of special rules to be evidence. guilty it' ho jirovo that ho has takoii all roasonablc moau.s, bj' enforciug tho observauce of this sectiou, to i)revoiit such non-compliance. 29. Every person who pulls down, injui'es, or defaces any proposed special rules, notice, abstract, or special rules when posted up in pursuance of the provisions of this Act with respect to special rules, or any notice posted up in pursuance of tho special rules, shall be guilty of an offence against this Act. 30. An inspector under this Act shall, when required, certify' a copy which is shown to his satisfaction to bo a true copy of anj'' special rules which for tho time being are established under this Act in any mine, and a copy so certified shall be evidence (but not to the exclusion of other j)roof) of such special rules and of the fact that they are duly established under this Act, and have been signed by the inspector. Penalty for offences asaiust Act. Imprisonment for wilful neglect en- dangering life or limb. Appeal against summary con- viction to quarter' sessions. PART III. S U P P L E M K N T A L. Penalties. 31. Every person employed in or about a mine, other than an owner or agent, who is guilty of any act or omission which in the case of an owner or agent would be an offence against this Act, shall bo deemed to be giiiltj' of an offence against this Act. Every person [k) who is guilty of an offence against this Act shall be liable to a penalty not exceeding, if he is an owner or agent, twenty poimds, and if he is any other person two pounds, for each offence ; and if an inspector has given written notice of any such offence, to a furtlier penalty not exceeding one jiound for every day after such notice that such offence continues to be committed. 32. "Where a person who is an owner or agent or a person employed in or about a mine is guilty of any offence against this Act which, in the opinion of the Court that tries the case, is one which was reasonably calculated to endanger the safety of the persons employed in or about the mine, or to cause serious personal injury to any of such persons, or to cause a dangerous accident, and was committed wilfully by the personal act, personal default, or personal negligence of the person accused, such person shall be liable, if the Court is of opinion that a pecuniary penalty vf'iW not meet the circum- stances of the case, to imprisonment, with or without hard labour, for a period not exceeding three months. If any person feel aggrieved by any conviction (?) made by a court of summary conviction on determining any iufomiation under this Act, by which conviction imprisonment is adjudged in pursuance of this section, or by which conviction the sum adjudged to be paid amounts to or exceeds half {k) Including one of several joint owners: R. v. Brown (1857), 7 E. & B. 767. (/) See note on sect. 63 of Coal Mines Act, 1887, infra. METALLIFEROUS MINES REGULATION ACT, 1872. ^^9 the iiKiximina penalty-, tlie person so aggrieved may appeal therefrom, subject to the conditions and regulations following : (1) The appeal shall bo made to the next court of general or quarter sessions (wi). Provided that in Scotland — (1) This section shall not apply to any conviction made by a sheriff : (2) The term " entering into a recognizance before a justice of the peace" shall mean finding caution with the clerk of the justices of the peace to the satisfaction of a justice of the peace, and the term " recognizance" shall mean a bond of caution : (;i) It shall be competent to anj' person empowered to appeal by this section, to appeal against a conviction by a sheriff to the High Court of Justiciary, in the manner prescribed by such of the provi- sions of the Act of the twentieth year of the reign of King George the Second, chapter forty-three, and any Acts amending the same, as relate to appeals in matters criminal, and by and under the rules, limitations, conditions, and restrictions contained in the said provisions. 33. All offences and penalties under this Act, and all money and costs by Summary pro- this Act directed to be recovered as penalties, may be prosecuted and ceedmgs for recovered in manner directed by the Summary Jurisdiction Acts before a penalties, &c. court of summary jurisdiction. The " Court of Summary Jurisdiction," when hearing and determining an information or complaint, shall be constituted — (a) In England, either of two or more justices of the peace in petty sessions sitting at a place appointed for holding petty sessions, or of some magistrate or officer for the time being empowered by law to do alone any act authorised to be done by more than one justice of the peace and sitting alone or with others at some coui't or other place appointed for the administration of j ustice ; or (b) In Scotland, of two or more justices of the peace sitting as judges in a justice of the peace court, or of the sheriff or some other magistrate or officer for the time being empowered by law to do alone any act authorised to be done by more than one justice of the peace, and sitting alone or with others at some court or other place ai^pointed for the administration of justice; or (c) In Ireland, within the police district of Dublin metropolis, of one of the di\dsional justices of that district sitting at a police court within the district, and elsewhere of two or more justices of the peace sitting in petty sessions at a place apjjointed for holding petty sessions. 34. In every part of the United Kingdom (n) the following provisions General pro- shall have effect : ^i^i^^^ '^^ t'^ . . summary pro- (1) Any complaint or information made or laid in pursuance of this Act ceedings. {m) The provisions that followed were See, as to the Isle of Man, 54 & 55 Vict, repealed by the Summary Jurisdiction c. 47, s. 1, sub-s. (3). Act, 1884. which, by sect. 6, substitutes , > mu- ^- ■ x j j . ., r , the procedure ou appeal provided by the ('0 This section is extended to the Isle Summary Jurisdiction Act, 1879, s. 31. of Man by 54 k 55 Vict. c. 47. 380 METALLIFEROUS MINES REGULATION ACT, 1872. Examinatiou of owuur or ageut. shall be made ov laid ^\^thiu tlirco months from the timo when the matter of such complaint or information respectively arose : (4) The owner or agent may, if he think lit, be sworn and examined as an ordinarj' witness in the case whei-e he is charged in respect of any contravention or non-compliance by another person : (5) The Court shall, if required by either party, cause minutes of the evidence to bo taken and preserved. Sub-sects. 2 and .S arc repealed by Summary Jurisdiction Act, 1881, whicli, by sect. 5, substitutes sect. 39, sub-sects. (1) and (2) of the Suniniurv Jurisdiction Act, 1879. Pi'osecutiou for oft'eucus bj' insi)ector or witli consent of Secretary of State. Summary pro* ceedings for offences in Scotland. Persons not to be punished twice for the same offence. Application of penalties. 35. Xo prosecution shall Ik* instituted against the owner or agent of a mine to which this Act applies for anj^ offence under this Act which can be prose- cuted before a court of summary jurisdiction, except by an inspector or with the consent in writing of a Secretarj- of State ; and in the case of any offence of which the owner or agent of a mine is not guilty, if he pi-oves that he had taken all reasonable means to prevent the commission thereof, an insi)ector shall not institute any prosecution against such owner or agent, if satisfied that ho had taken such reasonable means as aforesaid. The inspector, so long as he himself determines to prosecute, may lay the informa- tion by his authorised agent : Foster v. Fi//e, [1896] 2 Q. B. 104. See sect. 1, sub- sect. (5) of the Metalliferous Mines (Isle of Man) Act, 1891, s. 1, sub-s. (5). 36. In Scotland the following provisions shall have effect : (1) All jurisdictions, powers, and authorities necessaxy for the court of summary jurisdiction under this Act are hereby conferred on that court ; (2) Every person found liable under this Act in any penalty, or to pay any money or costs by this Act directed to be recovered as penalties, shall be liable in default of immediate payment to be imprisoned for a term not exceeding three months, and the conviction and warrant may be in the foi'm of No. ,i of Schedule K. of the Summary Procedure Act, 1864. 37. Nothing in this Act shall iirevent any person from being indicted or liable under any other Act or otherwise to any other or higher penalty or punishment than is provided for any offence by this Act, so that no person be punished twice for the same offence. If the court before whom a person is charged with an offence undei' this Act think that proceedings ought to be taken against such person for such offence under any other Act or otherwise, the court nuiy adjourn the case to enable such proceedings to be taken. 38. Where a penalty is imposed under this Act for neglecting to send a notice of any explosion or accident or for any offence against this Act which has occasioned loss of life or personal injury, the Secretary of State may (if he think fit) direct such penalty to be paid to or distributed among the persons injured, and the relatives of any persons whose deaths may have been occasioned by such explosion, accident, or offence or among some of theui : Provided that — (1) Such persons did not in his opinion occasion or contribute to occasion METALLIFEROUS MINES REGULATION ACT, 1872. 381 th.0 explosion or accident, and did not commit and were not parties to committing tlio offence : (2) The fact of such payment or distribution shall not in any way affect or be receivable as evidence in any legal proceeding relative to or consequential on snch explosion, accident, or offence : Save as aforesaid, all penalties imposed in pursuance of this Act shall be paid into the receipt of Her Majesty's Exchequer, and shall be carried to the Consolidated Fund. In Ireland all penalties imposed and recovered under this Act shall be applied in manner directed by the Fines Act (Ireland), 1S51, and any Act amending the same. MisceUaneoiis. 39. If any question arises whether a mine is a mine to which this Act, or As to question the Coal Mines Regulation Act, LSS", applies, such question shall be referred whether mine " . . , IS a imiie to a Secretary of State, whose decision thereon shall be final. under this Act. 40. All notices under this Act shall be in writing or print, or partly in Notices may be writing and partly in print, and all notices and documents required by this ^^^''^^ "^ P°^ • Act to be served or sent by or to an inspector or Secretary of State may be either delivered personally, or served and sent by post, by a prepaid letter, and if served or sent by post shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post ; and in proving such service or sending, it shall be sufficient to i^rove that the letter containing the notice was properly addressed and put into the post. 41. In this Act, unless the context otherwise requires, — The term "mine" includes everj' shaft in the course of being sunk, and Interpretation every level and inclined plane in the course of being driven for com- °^ terms, mencing or opening any mine, or for searching for or proving minerals, and all the shafts, levels, planes, works, machinery, tramways, and sidings, both below ground and above ground, in and adjacent to a mine, and any such shaft, level, and inclined plane, and belonging to the mine : The term " shaft " includes pit : The term "plan" includes a map and section, and a correct copy or tracing of any original plan as so defined : The term " owner" when used in relation to any mine means any person or body corporate who is the immediate proprietor, or lessee, or occupier of any mine, or of any part thereof, and does not include a person or body corporate who merely receives a royalty, rent, or fine from a mine, or is merely the proprietor of a mine subject to any lease, grant, or license for the woi'king thereof, or is merely the owner of the soil and not interested in the minerals of the mines : An owner of mines in fee granted a lease of them subject to royalties which were to be paid before the ore was taken away, and reserved right of re-entry anil distress in event of non-payment : Held, that the owner in fee was " interested in the minerals of the mines," and therefore not within the exception : Eva>is v. Mostijn (1877), 2 C. P. D. 547. The shaft of an abandoned mine euiitained water, and was used as and was in fact a public well, which imder sect. 64 of the Public Health Act, 1875, was vested in the defendants, the local authority : Held, that the defendants were not the 382 METALLIFEROUS MINES REGULATION ACT, 1872. "owTiors" within the definition, so as to be liable for non-fencing (see sect. 13, siipi-a) : Knuclay v. Redruth Rural District CoidicU, [1904] 1 K. B. 382. The term "agent" when used in relation to any mine moans any person ha\'ing, on behalf of the owner, care or direction of any mine, or of any part thereof : The term "Secretary of State" means one of Tier Majesty's Trinoipal Secretaries of State (o) : The terra " Summaiy Jurisdiction Acts " moans as follows (;)) : The tei-m " Court of Summary Jurisdiction " means — In England and Ireland, any justice or justices of the peace, metropolitan police magistrate, stipendiary or other magistrate, or officer, by what- ever name called, to whom jurisdiction is given by the Summary Jurisdiction Acts, or any Acts therein referred to (7) : In Scotland, any justice or justices of the peace, sherifi, or other magis- trate, to the proceedings before whom for the trial or prosecution of any offence, or for the recovery of any penalty under any Act of Parliament, the provisions of the Summary Jurisdiction Acts may be applied. 42. In the application of this Act to Scotland — (1) The term "chairman of quarter sessions " means the sheriff of the county : (2) The term " sheriff " includes " sheriff substitute " : (3) The Queen's and Lord Treasurer's Eemembrancer shall perform the duties of a Master of one of the Superior Courts under this Act : (4) Notices of explosions, accidents, and loss of life, or personal injury shall be doomed to be sent to the inspector of the district on behalf of the Lord Advocate : (5) Section sixteen of "The Public Health (Scotland) Act, 1867," shall be substituted for section eight of "The Nuisances Removal Act for England, 1855," as amended and extended by " The Sanitary Act, 1866 "(r). Isle of Man. 43. This Act shall apply to the Islo of Man (.s), with the following modi- fications : (1) The term "chairman of quarter sessions" means the governor, lieutenant governor, or deputy governor of the said Isle for the time being : (2) The clerk of the rolls shall perform the duties of a master of one of the superior courts under this Act : (3) The law of the said Isle as to the abatement or removal of nuisances affecting the health of Her Majesty's subjects shall be substituted for section eight of "The Nuisances Removal Act for England, 1855," as amended and extended by " The Sanitary Act, 1866 " (r). Sect. 44 (uontiuuatiou of former inspectors) and sect. 45 (repeal) and schedule repealed by Statute Law Revision Act (No. 2), 1893, saving appointments and pro- ceedings under repealed Acts. to) See Interpretation Act, 1889, s. 12, (7) See Interpretation Act, 1889, s. 13, 8ub-8. (3). 8ub-s. (11). («) The definition is repealed by (r) Both Acts superseded by Public Statute Law Revision A(^t, 1893 (No. 2), Health Act, 1875: see sects. 91 and and is replaced by that given in sect. 13, 313, and S.-hed. V., Pt. I. sub-sect (10) of the Interpretation Act, (s) See Metalliferous Mines (Isle of 1889 ' Man) Act, 1891 (54 & 55 Vict. c. 47). MKTALLTFEROUS MINES REGULATION ACT, 1S70. ^83 38 & 39 VICT. c. 39 (1875). An Act to amend the provisions o/ " The Metalliferous Mines Refjulativu Act, 1872," with respect to the annual returns from Mines. 1. The owner or agent of every mine to whicli " The Metalliferous Minos Returns bj- Eegulation Act, 1872," applies shall, on or before the 1st day of February in "gen'^te oT'^ every year, send to the inspector of the district on behalf of a Secretary of mines. State a correct return, specifying with respect to such mine, for the year ending on the preceding 31st day of Dcconiber, the quantity in statute weight of the mineral dressed, and of the undressed mineral which has been sold, treated or used, during that year, and the number of persons ordinarily employed in or about such mine, below ground and above ground, distin- guishing those who are employed below ground and above ground, and distinguishing the different classes and ages of the persons so employed whose hours of labour are regulated by " The Metalliferous Mines Regula- tion Act, 1872." The return shall be in such form as may be from time to time prescribed by a Secretary of State, and the inspector of the district on behalf of a Secretary of State shall from time to time, on application, furnish forms for the purpose of such return. Every owner or agent of a mine who fails to comply with this section, or makes any return which is to his knowledge false in any particular, shall be guilty of an offence against " The Metalliferous Mines Regulation Act, 1872." Provided that — (1) In any mine where not more than twelve persons are employed under- ground, the returns specifying the quantity of mineral produced shall be made by the barmaster or other local officer, if any, employed to collect the dues or royalty ; and (2) Where there is such a barmaster or other officer the owner or agent of such mine shall not be required to send any return specif png the number of persons employed in or about such mine. See sect. 10 of principal Act ; and note on sect. 4 on this page, infra. By virtue of the Notice of Accidents Act, 1906 {s.s), this return is to include a statement of (sect. 1) all accidents which have disabled an employee for more than seven days ; (sect. 3) accidents upon lines and sidings used in connection with a mine or quarry. Section 2, Commencement. — Repealed hi/ Statute Law Revision Act {No. 2), 1893. 3. This Act shall be construed as one with "The Metalliferous Mines Short title and Regulation Act, 1872," and that Act and this Act may be cited together as " The Metalliferous Mines Eegulation Acts, 1872 and 1875," and this Act may be cited separately as " The Metalliferous Mines Regulation Act, 1875." Section 4, repeaUug section 10 of principal Act, was itself repealed by Statute Law Revision Act, 1883, without of course affecting the repeal of section 10. construction. {ss) Printed at p. 859, infra. 384 CO.VL MINKS REGULATION ACT, 1887. Short title. Commence- ment of Act. A]>j>lic;itiou of Act. 50 & 51 VICT. 0. 58 (1887). All Act to ronsnfidate viith nmeiuhnerds the Coal Mines Ads, 187'2 a 7^7 1886, and the Stratified Irovatone Mines {Ouvpoirder) Act, 1881. Preliminary. 1. This Act may bo cited as the Coal Mines Regulation Act, 1887. 2. This Act shall not come into operation until the first clay of January one thousand eight hundred and eighty-eight, whicli date is in tliis Act referred to as the commencement of this Act. 3. This Act shall apply to mines of coal, mines of stratified ironstone, mines of .shale, and mines of fire-clay (o) ; and in this Act, unless the context otherwise requires, the word " mine" means a mine (i) to which this Act applies. PART I. Emploi/nient of Boys, Girls, and. Women. Employment 4. No boy [h) under the age of twelve years, and no girl (ft) or woman (6) below ground q£ , ^ g gj,^j| |jg employed in or allowed to be for the purpose of employ- of boys under . o > i ^ twelve and of ment in any mine below ground, girls and women The ago is raised to 13 by 63 & C4 Vict. c. 21. The class "young person," prohibited. found in the Act of 1872, between 13 and 16, disappears, and " boy " and " girl " is extended to 16 [vide sect. 75). Hours of employment of boys over twelve below ground. Regulations as to employment of boys below ground. 5. A boy of or above the age of twelve years shall not be employed in or allowed to be for the purpose of employment in any mine below ground for more than fifty-four hours in any one week, nor more than ten hours in any one day, nor otherwise than in accordance with the regulations hereinafter contained with respect to the employment of boys in a mine below gi-ound. 6. With respect to the emploj-UK'nt of boys in a mine below ground, the following regulations shall have effect ; that is to say, (1) There shall be allowed an interval of not less than eight hours between the period of employment on Friday and the period of employment on the following Saturday, and in other cases of not less than twelve hours between each period of employment : (2) The period of each employment shall be deemed to begin at the time of leaving the surface, and to end at the time of returning to the surface : (3) A week shall be deemed to begin at midnight on Saturday night and to end at midnight on the succeeding Saturday night. {a) See Metalliferous Mines Rogula- sect. 71, and Homo Office Circular of tion Act, 1872, h. 3, and Quarries Nov. 28, 1872. Act, 1894, B. 1, infra. See also (h) Defined by sect. Ih. COAL MINES REGULATION ACT, 1887. 385 7. AVitli rosi^oct to boys (c), girls (c), and women (c) employed above ground, Employment in connexion with any mine, tbe following provisions shall have effect : a d ^'^' ^ (1) No boy or girl under the age of twelve years shall bo so employed : above ground. (2) No boj' or girl under the age of thirteen years shall be so employed— (a) for more than six days in any one week ; or (b) if employed for more than thi-ee days in any one week, for more than six hours in any one day ; or (c) in any other case for more than ten hours in any one day : (.'i) No boj^ or gu'l of or above the ago of thirteen years and no woman shall be so employed for more than fifty-four hours in any one week or more than ten hours in any one day : (4) No boy, girl, or woman shall be so employed between the hours of nine at night and five on the following morning, nor on Sunday, nor after two o'clock on Saturday afternoon : (5) There shall be allowed an interval of not less than eight hours between the termination of employment on Friday and the commenctment of employment on the following Saturday, and in other cases of not less than twelve hours between the termination of employment on one day, and the commencement of the next employment : The words in italics are repealed by the Employment of Women Act, 1907 (7 Edw. 7, 0. 10). (6) A week shall be deemed to begin at midnight on Satui-day night and to end at midnight on the succeeding Saturday night : (7) No boy (c), girl (c), or woman (c) shall be employed continuously tor more than five hours, without an interval of at least half an houi- for a meal, nor for more than eight hours on any one day, without an interval or intervals for meals amounting altogether to not less than one horu- and a half : (8) No boy(c), girl (c), or woman (c) shall be employed in removing railway waggons. This sub- section is new. The provisions of this section as to the employment of boys, gii'ls, and women after two o'clock on Saturday afternoon, shall not apj^ly in the case of any mine in Ireland, so long as it is exempted by order of a Secretary of State. 8. — (1) The owner (c), agent (c) or manager (rf) of every mine shall keep in Register to be the ofiice at the mine a register, and shall cause to be entered in that jj^?* °^ j°^^' register, in such form as the Secretary of State may from time to time women prescribe or sanction, the name, age, residence, and date of first employment ^™P^°J'^*1- of all boys employed in the mine below groimd, and of all boys, girls, and vpomen employed above ground in connexion with the mine ; and shall, on request, produce the register to any inspector (e) imder this Act, and to anv officer of a school board or school attendance committee in the district in which the mine is situate, at the mine at all reasonable times, and shall allow any such inspector or officer to inspect and copy the same. (c) Defined by sect. 75. {d) See sects. 20 — 32, infra, {e) See .sects. 39—46, infra. M. C C 386 COAL MINES REGULATION ACT, 1887. Penalty for cinploymciit of jjersous iu coutravention of Act. Payment of school fees ont of wages. (2) The iiuincdiate employer of every boy, other thiin the owner, agent or manager of the mine, before he causes the boy to be below ground in any mine, shall report to the manager of the mine or to some person appointed by that manager, that he is about to employ the boy in the mine. 9. If any person contravenes or fails to comply with, or permits (/) any person to contravene or fail to comply with, any provisions of this Act with respect to the employment of boys, girls, or women, or to the register of boys, girls, and women, or to reporting the intended employment of boys, he shall be guilty of an offence against this Act ; and in the event of any such contravention or non-compliance by any person whomsoever, the owner, agent and manager of the mine shall each bo guilty of an offence against this Act, unless he proves that he had taken all reasonable means, by publishing and to the best of his power enforcing the provisions of this Act, to prevent the contravention or non-compliance. 10.— (1) After a request in writing by the principal teacher of a public elementary school which is attended by any boy or girl employed in or in connexion with a mine, the person who pays the wages of the boy or girl shall as long as he employs the boy or girl pay to the principal teacher of that school, for every week that the boy or girl attends the school, the weekly sum specified in the application, not exceeding twopence per week, and not exceeding one-twelfth part of the wages of the boy or girl, and may deduct the sum so paid by him from the wages payable for the services of the boy or girl. (2) If any person after such application refuses to pay on demand any sum that becomes due as aforesaid, he shall be liable to a penalty not exceeding ten shillings. This provision has ceased to be important .since the abolition of school fees by the Elementary Education Act, 1891. For the statutes dealing with the education of children in employment, see p. 4")0, infm. Prohibition of payment of wages at public houses, &c. W(i(/('S. 11. — (1) No wages shall be paid to any person employed in or about any mine at or within any public house, beer shop, or place for the sale of any spirits, beer, wine, cyder, or other spirituous or fermented liquor, or other house of entertainment, or any office, garden or place belonging or contiguous thereto, or occupied therewith. (2) Every person who contravenes or fails to comply with or permits any person to contravene or fail to comply with this section shall be guilty of an offence against this Act ; and in the event of any such contravention or non- compliance by any person whomsoever, the owner, agent and manager of the mine shall each be guilty of an offence against this Act, unless he proves that ho had taken all reasonable means by publishing and to th(^ best of his power enforcing the provisions of this section to prevent the contravention or non-compliance. Payment of Wages in Public House Prohibition Act, 1883, does not apply to persons under this Act. (/) In Re/f. V. Handley, 9 L. T. (N. S.) 827, decided under o & 6 Vict, o. 99, it was held that to constitute the offence of ' ' allowing ' ' a breach of the Act, knowledge or acquiescence must be shown. COAL MINES REGULATION ACT, 1887. 387 12. — (1) Where the amount of wages paid to any of the persons employed Payment of in a mine depends on the amount of mineral gotten by them, those persons Persons . . , 7^7-7 employed in shall be paid according to the (tdual iveiijht qotten hy tlitia of the muieral mines by contracted to be. gotten {(j), and the mineral gotten by them shall be truly weight, weighed at a place as near to the pit mouth as is reasonably practicable. Provided that nothing in this section shall preclude the owner, agent or manager of the mine from agreeing with the persons employed in the mine that deductions shall be made in I'espect of stones or substances other than the mineral contracted to be gotten, which shall be sent out of the mine with the mineral contracted to be gotten, or in respect of any tubs, baskets or hutches being improperly filled in those cases where they are filled by the getter of the mineral or his drawer, or by the person immediately employed by him ; such deductions being determined in such special mode as may be agreed upon between the owner, agent or manager of the mine on the one hand, and the persons employed in the mine on the other, or by some person appointed in that behalf by the owner, agent or manager (g), or (if any check weigher is stationed for this purpose as hereinafter mentioned), by such person and such check weigher, or in case of difference by a third person to be mutually agreed on by the owner, agent or manager of the mine on the one hand, and the persons employed in the mine on the other, or in default of agree- ment appointed by a chairman of a court of quarter sessions within the jurisdiction of which any shaft of the mine is situate. (2) If any person contravenes or fails to comply with, or permits any person to contravene or fail to comply with, this section, he shall be guilty of an offence against this Act ; and in the event of any such contravention or non-compliance by any person whomsoever, the owner, agent and manager of the mine shall each be guilty of an offence against this Act, unless he proves that he had taken all reasonable means by publishing and to the best of his power enforcing the provisions of this section to prevent the contravention or non-compliance. (3) Where it is proved to the satisfaction of a Secretary of State, in the case of any mine or class of mines employing not more than thirty persons underground [g) to be expedient that the persons employed therein should, upon the joint representation of the owner or owners of any such mine or class of mines and the said persons, be paid by any method other than that provided by this Act, such Secretary of State may, if he think fit, by order allow the same either without conditions or during the time and on the con- ditions specified in the order. The check weigrhing sections in this Act are intended to remove certain grievances of the miners with resjard to payment of wages according to weight. Tlie Coal Mines Regulation Act, ISCO, s. '29, provided that when miners were paid according to weight, measure or gauge, '' Such coal, iron, stone, or other mineral shall be truly weighed, meisured or gauged accordingly " ; and gave power to the men to appoint one of their number to take account of the weighing or measuring. It was alleged that the Act was inoperative, the size of the tubs being increased without any increase in wages In the Coal Mines Regulation Act, 1872, were sections (17 — 19) intended to remedy such grievances. The corresponding words in the Act of 1872 (s. 17) were:— "Such mineral shall be truly weighed accordingly. Provided always that nothing herein contained shall preclude the owner, agent or manager of the {g) The words in italics are new ; cp. sect. 17 of the Act of 1872. cc2 388 COAL MINES REGULATION ACT, 1887. Appointment ou j);n-t f)f men, and removal, of check weigher. mine from ag-rccing with tho persons employed in such mine that deductions shall he made in respect of stones or materials other than mineral contracted to he g'otten, which shall be sent out of the mine with the miniral contracted to be gotten . . . such deductions being- determined by the banksman or weigher and check weigher (if there be one), or in case of difference by a third party to be mutually agreed on by the owner, agent or manager of the mine on the one hand, and tho persons employed in the mine on the other." In liourne v. Netherseal Colliery Co. (1887). 19 Q. B. D. 357; 20 Q. B. D. 606 (C. A.) ; 14 A. C. 'i"28, the meaning of these words came before a Divisional Court. Certain colliers had agretd that ' coal .should be paid for at Ifir/. a ton," and that " no shick whatever will be paid for except that sent out as heading .slack ; all other slack will bo deducted from the different places in proportion to their loading." The coal as it came up, with slack or dust, was first weighed in the presence of the check weigher; then it was put ou the " Billy fair-play," as a weighitig-macliino is called, which separated out and weighed the .slack. The check weigher did not see this latter operation, though the owners urged that he should do so, and offered to pay a check weigher for that pur])ose. The Divisional Court held that the deductions were not made in accordance with tho statute, being determined merely by the boj^ in charge of " Billy fair-play." In the Court of Appeal the appeal was dismissed, but on another ground, viz., that slack was part of •' the mineral to be gotten." In the House of Lords the appeal was also dis- missed. Lords Halsbury, Herschell and Macnaghten put their opinions on the ground that the wages must be paid on all the mineral gotten, and that slack was coal. Lords Bramwell and Fit/ger;ikl ado])ted the opinion of the Divisional Court. In the Act of 18S7 (s. 12) the alterations i^riutiHl above in italics were made. The second alteration has succeeded in its object, viz., that of letting in such arrangements as " Billy fair-play," and the establishment of a certain average percentage for dirt, stones, and so on. But the first amendment has been expres.sly held to have made no change in the effect of the section whatever. The whole of the stuff brought to bank must still be weighed and the men paid on that weight, minus tho permitted deductions, and no others. In Krarncy v. IFhitehaven Colliery Co., [1893] 1 Q. B. 700 (C. A.), there was an agreement that the work- men should give fourteen days' notice. There was also a system of fines and forfeitures, by w'hich, if the amount of dirt did not exceed 25 lbs. m a tub con- taining about 15 cwt., there was no foifeiture; if the dirt exceeded 25 lbs., but did not exceed 35 lbs., one half of th(! tub was forfeited ; if the dirt exceeded 35 lbs., the whole tub was forfeited. K. left his employment without giving notice on the ground that tho agreement was illegal. The judges in the Divisional Court were divided in opinion as to the illegality of the mode of deduction ; but both thought that, assuming the deductions to be illegal, the workman was not by reason thereof entitled to leave without notice. The Court of Api)eal thought the deductions illegal. " Tho things in respect of which deductions are to be made are stones and substances other tlian the mineral contracted to be gotten, and the deduction must be from the weight in the tub, not from the men's wages" (per Esher, M. R., 1. c. 708). The Court agreed with the Divisional Court on the point as to ab.senee of notice In Jirncex. Ahercarn Colliery Co., [1891] 1 Q. B. 496; [1891] 2 Q. B. 699 (C. A.), the plaintiffs were engaged to cut large coal at \s. Q>d. per ton ; but the defendants refused to pay them for the small coal. The deductions were held illegal, small coal being part of the "minerjil contracted to be gotten." "The whole coal, whether small or large, was coal gotten" (per Fry, L. J., ibid., p. 706). The Court also held that tho plaintiffs w'ore entitled to be paid at the same rate for smidl as large. (See also Mowatt v. Itonahhon (agreement for average de luction) (1894). 21 R. (J. C.)55: Ilaiitie v. Atkimon (" improper fiHing") (1894), 21 R. (J. C.) 62.) An exemption granted to a mme under the old Act, where there was no limitation as to number of employees, continues good after the passing of this Act by virtue of sects. 79 and 84, infra, though more than thirty men are and always have been employed therein tmderground : Dickinson v. Ilanddvy (1889), 60 L. T. (N. S.) 567. 13. — (1) The persons who arc employed in a mine, and are paid according to the weight of the mineral gotten by tliem, may, at their own cost, station a person (in this Act referred to as "a check weigher") at each place appointed for the weighing of the mineral, and at each place appointed for determining the deductions in order that he may on behalf of the persons by COAL MINES REGULATION ACT, 1887. whom ho is so stationed take a correct account of the weight of the mineral or determine correctly the deductions as the case may be. (2) A check weigher shall have every facility afforded to him for enabling him to fulfil the duties for which ho is stationed, including facilities for examining and testing the weighing machine, and checking the tareing of tubs and trams where necessary ; and if at any mine proper facilities are not afforded to a check weigher as required by this section, the owner, agent and manager of the mine shall each be guilty of an offence against this Act, unless he proves that he had taken all reasonable means to enforce to the best of his power the re(iuirements of this section. (3) A check weigher shall not be authorised in any way to impede or interrupt the working of the mine, or to interfere with the weighing, or with any of the workmen (/<) or with the inanagement of the mine ; but shall be authorised only to take such account or determine such deductions as aforesaid, and the absence of a check weigher from the place at which he is stationed shall not be a reason for interrupting or delaying the weighing or the determination of deductions at such place respectively, bvit the same shall be done or made by the person appointed in that behalf by the owner, agent or manager, unless the absent check weigher had reasonable ground to suppose that the weighing or the determination of the deductions, as the case may be, would not be proceeded with : Provided always, that nothing in this section shall prevent a check weigher giving to any workman an account of the mineral gotten by him, or information with respect to the weighing, or the weighing machine, or the tareing of the tubs or trams, or with respect to the deductions or any other matter within the scope of his duties as check weigher, so always, nevertheless, that the working of the mine be not interrupted or impeded. (4) If the owner, agent or manager of the mine desires the removal of a check weigher on the ground that the check weigher has impeded or inter- rupted the working of the mine, or interfered with the weighing, or any of the workmen, or with the management of the mine, or has at the mine to the detriment of the owner, agent or manager done anything beyond taking such account determining such deductions or giving such information as aforesaid, he may complain to a court of summary jurisdiction, who, if of opinion that the owner, agent or manager shows sufficient prima facie ground for the removal of the check weigher, shall call on the check weigher to show cause against his removal. (5) On the hearing of the case the Court shall hear the parties, and, if they think that at the hearing sufficient ground is shown by the owner, agent, or manager to justify the removal of the check weigher, shall make a summary order for his removal, and the check weigher shall thereupon bo removed, but without prejudice to the stationing of another check weigher in his place. (6) The Court may in every case make such order as to the costs of the proceedings as the Court may think just. (7) If in pursuance of any order of exemption made by a Secretary of State, the persons employed in a mine are paid by the measure or gauge of (h) This is new. See Fientiee v. Hall (1877), 37 L. T. 605. 389 390 COAL MINES REGULATION ACT, 1887. Remimeration of check weigher. Application of 41 & 42 Vict. c. 49, to weights, &c. used in mines. the material gotten by them, the provisions of this Act shall apply in like manner as if the term "weighing" included measuring and gaugmg, and the tei-ms relating to weighing shall be construed accordingly. (8) If the person appointed by the owner, agent, or manager to weigh the mineral impedes or interrupts the check weigher in the proper discharge of his duties, or improperly interferes with or alters the weighing machine or the tare in order to prevent a correct account being taken of the weighing and tareing, he shall bo guilty of an offence against this Act. ConHiJerable amendments are effected in this section by the Coal Mines (Weighing of Minerals) Act. 1905 (.5 Edw. 7, c. 9), which is printed infra, at p. 855. Under the old Act the check weigher had to be a miner in the owner's employ. See Hopkinswi v. Caunt (1886), 14 Q. B. D. 592. Sub- sect. (3), from "or the determinati(jn of deductions" to the end, and sub- sect. (8) are new. As to interference by the owner, agent or manager in the appointment of a check weigher, see CoafMines (Check Weigher) Act, 1894, infra, at p. 428. As to order for removal, see sect. 61, sub-sect. (2). In Whitehead v. Uohhworth (1878), 4 Ex. D. 13, the appellant had been appointed check weigher by the miners. Subsequently the respondents dismissed tdl the miners and^ closed the mine. No notice was given to the appellant by any one. Held, that the appellant had, on the dismissal of the miners, ceased to be a check weigher, and that an action for damages could not be maintained. 14.— (1) Where a check weigher has been appointed by the majority, ascertained by ballot, of the persons employed in a mine who are paid according to the weight of the mineral gotten by them, and has acted as such, he may recover from any person for the time being employed at such mine and so paid, his proportion of the check weigher's wages or recom- pense, notwithstanding that any of the persons by whom the check weigher was appointed may have left the mine or others have entered the same since the check weigher's appointment, any rule of law or equity to the contrary notwithstanding. (2) It shall be lawful for the owner or manager of any mine, where the majority of the before-mentioned persons, ascertained as aforesaid, so agree, to retain the agreed contribution of the persons so employed and paid as aforesaid for the check weigher, notwithstanding the provisions of the Acts relating to truck (i), and to pay and account for the same to the check weigher. This section is amended by the Coal Mines (Weighing of Minerals) Act, 1905 (5 Edw. 7, c. 9), which is printed infra, at p. 855. 15. — (1) The Weights and Measures Act, 1878, shall apply to all weights, balances, scales, steelyards, and weighing macliines used at any mine for determining the wages payable to any person employed in the mine according to the weight of the mineral gotten by him, in like manner as it applies to weights, balances, scales, steelyards, and weighing machines used for trade. (2) An inspector of weights and measures appointed under the said Act shall once at least in every six months inspect and examine in manner directed by the said Act the weights, balances, scales, steelyards, and weighing machines used or in the possession of any person for use as aforesaid at any mine within his district ; and shall also make such inspection (t) See p. 331, supra. COAL MINES REGULATION ACT, 1887. ^^^ aud examination at any other time iu any case where he has reasonable cause to believe that there is in use at the mine any false or unjust weight, balance, scale, steelyard, or weighing machine. (3) The inspector shall also inspect and examine the measures and gauges in use at the mines within his district; but nothing in this section shall prevent or interfere with the use of the measures or gauges ordinarily used at the mine. (4) An inspector may, for the purposes of this section, without any authorisation from a justice of the peace, exercise at or in any mine, as respects all weights, measures, scales, balances, steelyards, and weighing machines used or in the possession of any person for use at or in that mine, all such powers as he could exercise, if authorised in writing by a justice of the peace, under section forty-eight of the Weights aud Measures Act, 1878, with respect to any such weights, measures, scales, balances, steelyards, and weighing machines as therein mentioned ; and all the provisions of that section, including the liability to penalties, shall apply to such inspection. (5) The inspector of weights and measures shall not, iu fulfilling the duties required of him under this section, impede or obstruct the working of the mine. Single Shafts. 16. — (1) After the commencement of this Act the owner, agent, or Prohibition of manager of a mine shall not employ any person in the mine, or permit any ^^"^ ® ^ '^ person to be iu the mine for the purpose of employment therein, unless the following conditions respecting shafts (A;) or outlets are complied with, that is to say, — (a) There must be at least two shafts or outlets, with which every seam for the time being at work in the mine shall have a communica- tion, so that such shafts or outlets shall afford separate means of ingress and egress available to the persons employed in every such seam, whether the shafts or outlets belong to the same mine or to more than one mine ; (b) Such shafts or outlets must not at any point be nearer to one another than fifteen yards ; and there shall be between such two shafts or outlets a communication not less than four feet wide and three feet high, and in the case of communications made after the com- mencement of this Act between shafts or outlets, not less than four feet high. (c) Proper apparatus for raising and lowering persons at each such shaft or outlet shall be kept on the works belonging to the mine ; and such apparatus if not in actual use at the shafts or outlets, shall be constantly available for use. (2) Every owner, agent and manager of a mine who acts in contravention of or fails to comply with this section shall be guilty of an offence against this Act. (3) Any of Her Majesty's superior courts, whether any other proceedings have or have not been taken, may, on the application of the Attorney- General, prohibit by injunction the working of any mine in which any (A) Defined by sect. 75. 392 COAL MINES REGULATION ACT, 1887. Agreements not to preclude compliance \Tith Act. • Exceptions from provi- sions as to shafts. por.son is eniploj-cd, or is permitted to be for the purpose of employment, in contravention of this section, and may award such costs in the matter of the inj miction as the Court thinks just ; but this provision shall be without prejudice to any other remedy permitted by law for enforcing the provisions of this Act. (4) Written notice of the intention to apply for such injunctioii in respect of any mine shall be given to the owner, agent or manager of the mine not less than ten days before the aj)i)licatiou is made. 17. No person shall be precluded by any agreement from doing such acts as may be uecessarj' for providing a second shaft or outlet to a mine, where the same is required by this Act, or be liable under any contract to any penalty or forfeiture for doing such acts as may be necessary in order to comply with the provisions of this Act with respect to shafts or oiitlets. 18. The foregoing jjrovisious of this Act with respect to shafts or outlets shall not apply — (i) In the case of a new mine being opened — ■ (a) to any working for the purpose of making a communication between two or more shafts ; or (b) to anj^ working for the purpose of searching for or proving minerals ; so long as not more than twenty persons are employed below ground at any one time in the whole of the different seams in connexion with a single shaft or outlet : nor (ii) To anj'^ proved mine so long as it is exempted by order of a Secretary of State on the ground either — (a) that the quantity of mineral proved is not sufficient to repay the outlay which would be occasioned by sinking or making a second shaft or outlet, or by establishing communication with a second shaft or outlet, in an 5' case where such communication existed and has become unavailable ; or (b) that the workings in any seam of the mine have reached the boundary of the property or the extremity of the mineral field of which that seam is a part, and that it is expedient to work away the pillars already formed in course of the ordinary working, notwithstanding that one of the shafts or outlets may be cut off by so working away the pillars of that seam ; and so long as not more than twenty persons arc employed below ground at any one time in the whole of the different seams in connexion with a single shaft or outlet ; nor (iii) To any mine — (a) while a shaft is being sunk, or an outlet being made : or (b) one of the shafts or outlets of which has become, by reason of some accident, unavailable for the use of the persons employed in the mine : so long as the mine is exempted by order of a Seci'etary of State, and as the conditions (if any) annexed to the order of exemption are duly observed. The provision in this Act requiring the two shafts or outlets of a mine to be separated by a distance of not less than fifteen yards shall not apply to any COAL MINES REGULATION ACT, 1887. 393 mine which is provided with two shafts sunk before the first day of January- one thousand eight hundred and sixty-five but at that time separated by a distance of loss than ten feet, or commenced to be sunk before the com- mencement of this Act but separated by a distance of more than ten feet and less than fifteen yards. The foregoing provisions of this Act as to the dimensions of the com- munication between two shafts or outlets shall not apply to any mine or class of mines so long as the same is exempted therefrom by order of a Secretary of State by reason of the thinness of the seams or other exigencies affecting that mine or class of mines, and so long as the conditions (if any) annexed to the order of exemption are duly observed. Division of Mine into Parts. 19. — (1) Where two or more parts of a mine are worked separately, the Division of owner, agent or manager of the mine may give notice in writing to that 5"^^ effect to the inspector of the district, and thereupon each such part shall, for all the pm-poses of this Act, be deemed to be a separate mine. (2) If a Secretary of State is of opinion that the division of a mine in pursuance of this section tends to lead to evasion of the provisions of this Act, or otherwise to prevent the carrying of this Act into effect, he may object to the division by notice served on the owner, agent or manager of the mine ; and the owner, agent, or manager, if he declines to acquiesce in such objection, may, within twenty days after receipt of the notice, send a notice to the inspector of the district stating that he declines so to acquiesce, and thereupon the matter shall be determined by arbitration in manner pro- vided by this Act ; and the date of the receipt of the last-mentioned notice shall be deemed to be the date of the reference. Qertificated Alanmjers. 20. — (1) Every mine shall be under a manager, who shall be responsible Appointment for the control, management, and direction of the mine, and the owner or o* manager of agent of every such mine shall nominate himself or some other person to be the manager of such mine, and shall send written notice to the inspector of the district of the manager's name and address. (2) A person shall not be qualified to be a manager of a mine unless he is for the time being registered as the holder of a first class certificate under this Act. (3) If any mine is worked for more than fourteen days without there being such a manager for the mine as is required by this section, the owner and ao-ent of the mine shall each be liable to a fine not exceeding fiity pounds, and to a further fine not exceeding ten pounds for every day during which the mine is so worked. Provided that — (a) The owner of the mine shall not be liable to any such fine if he proves that he had taken all reasonable means by the enforce- ment of this section to prevent the mine being worked in contra- vention of this section ; 394 COAL MINES REGULATION ACT, 1887. Daily super- visiou of mine by manager or under- mauajrer. Disqualifica- tions for post of manager or uuder- manager. (b) If for any reasonable cause there is for the time being no manager of II mine qualified as required by this section, the owner or agent of the mine may appoint any competent person not holding a certificate under this Act to be manager, for a period not exceeding two months or such longer period as may elapse before such person has an opportunity in the district wherein the mine is situate of obtaining by examination a certificate under this Act, and shall send to the inspector of the district a written notice of the manager's name and address, and of the reason for his appointment ; and (c) A mine in which not more than thirty persons are employed below ground shall be exempt from the provisions •) See 59 & 60 Vict. c. 43, s. 1, sub- . (1) (d). s. (I) (c). *il2 COAL MINES REGULATION ACT, 1887. (k) In this Act " ventilating district" means such part of a seam as has an indepondeut intake commencing from a main intake air course, and an independent return airwaj' terminating at a main return air coui'se ; and " inain haulage road" means a road which has been, or for the time being is, in use for moving trams by steam or other mechanical power : (1) "Wliere a seam of a mine is not divided into separate ventilating districts the provisions in this Act relating to ventilating districts shall be read as though the word " seam" wore substituted for the words " ventilating district " : (m) So much of this rule as requires the explosive substance taken into the mine to be in cartridges, and so much of the provisions of sub-head (f) as relates to a dry and dusty place, and the pro- visions (g), (h), (i), (k), and (1) shall not apply to seams of clay or stratified ironstone which are not worked in connexion with any coal seam, and which contain no coal in the working. The special dcfinitionH are new. Under sect. 6 of the Coal Mines Regulation Act, 1S96, the Secretary of' State has power to prohibit the use of any dangerous explosive; and see sect. 1, sub -sect. (1) (b), ibid. Water and Rule 13. Where a place is likely to contain a dangerous accumulation of bore holes. water, the working approaching that j^lace shall not at any point within forty yards of that place exceed eight feet in width, and there shall be constantly kept at a sufficient distance, not being less than five yards, in advance, at least one bore-hole near the centre of the working, and sufficient flank bore-holes on each side. Si^nallinK and Eule 14. Every underground plane on which persons travel, which is self- mau-holes for acting or worked by an engine, windlass or gin, shall be provided (if excecd- p^ancs ^worked i^S thirty yards in length) with some proper means of communicating by machinery, distinct and defiaite signals between the stopping places and the ends of the plane, and shall be provided in every case, with sufficient man -holes for places of refuge, at intervals of not more than twenty yards, or if there is not room for a person to stand between the side of a tub and the side of the plane, then (unless the tubs are moved by an endless chain or rope) at intervals of not more than ten yards. Man-holes Rule 15. Every road on which persons travel underground where the load for other ^g (lyawn by a horse or other animal shall be provided, at intervals of not roads '"^ more than fifty yards, with sufficient man-holes, or with places of refuge, and every such placS of refuge shall be of sufficient length, and at least three feet in width, between the wagons running on the road and the side of such road. There shall be at least two i)roper travelling ways into every steam engine room and boiler gallery. Mau-lolesto Rule 10. Everyman-hole and every place of refuge shall bo constantly be kept clear, kept clear, and no person shall place anything in any such man-hole or place of refuge. Dimensions of Rule 17. Every travelling road on which a horse or other draught animal travelling -^ nspd underground shall bo of sufficient dimensions to allow the horse or other animal to pass without rubbing against the roof or timbering. COAL MINES REGULATION ACT, 1887. ^^'^ Rule IS. Tho top of ovoxy shaft which for the time being is out of use, or Fencing of used only as an air shaft, shall be and shall bo kept securely fenced. Eulc 19. The top and all entrances between the top and bottom, including Fencing of the sump, if any, of every working ventilating or pumping shaft shall be l^^^f^f properly fenced, but this shall not be taken to forbid the temporary removal of the fence for the purpose of repairs or other operations, if proper precautions are used. Rule 20. Where the natural strata are not safe, every working or pumping Securing of shaft shall bo securely cased, lined or otherwise made secure. s a s. Eule 2L The roof and sides of every travelling road and working place Securing of shall be made secure, and a person shall not, unless appointed for the pur- gj^^^^ pose of exploring or repairing, travel or work in any such travelling road or working place which is not so made secure. Eule 22. Where the timb(!riug of the working places is done by the work- Timbering, men employed therein, suitable timber shall be provided at the working place, gate end, pass bye, siding or other similar place in the mine con- venient to the workmen, and the distance between the sprags or holing props where they are required (s) shall not exceed six feet or such less dis- tance as may be ordered by the owner, agent or manager. Eule 23. Where there is a downcast and furnace shaft to the same scam, Option of and both such shafts are provided with apparatus in use for raising and "ast^haft."' lowering persons, every person employed in the mine shall, on giving reasonable notice, have the option of using the downcast shaft. Rule 24. In any mine which is usually entered by means of machinery. Attendance of a competent male person not less than twenty-two {t) years of age shall be engine-man. appointed for the pui-pose of working the machinery which is employed in lowering and raising persons therein, and shall attend for that purpose during the whole time that any person is below ground in the mine. Where any shaft, plane, or level is used for the purpose of communication from one part to another part of a mine, and persons are taken up or down or along such shaft, plane, or level by means of any engine, windlass, or gin, driven or worked by steam or any mechanical power, or by an animal, or by manual labour, the person in charge of such engine, windlass, or gin, or of any part of the machinery, ropes, chains, or tackle connected therewith must be a competent male person not less than eighteen {u) years of age. Where the machinery is worked by an animal, the person under whose direction the driver of the animal acts, shall for the purposes of this rule, be deemed to be the person in charge of the machinery. Eule 25. Every working shaft used for the purpose of drawing minerals Means of or for the lowering or raising of persons shall, if exceeding fifty yards in ^1^"^;,™° depth, and not exempted in writing by the inspector of the district, be shafts. '' provided with guides and some proper means of communicating distinct and definite signals from the bottom of the shaft and from every entrance for the time being in use between the surface and the bottom of the shaft to the surface, and from the surface to the bottom of the shaft and to every (a) I.e., "necessary for safety,'" the L. J. M. C. 42. necessity being a question of fact for the (t) Raised from " eighteen." justices: Gibbon v. Phillips (1894), 64 [u) Raised from " twelve," 4U COAL MINES REGULATION ACT, 1887. Cover over- head. Chains. Prevention of rope slipping on drum. entrance for the time being in use between the siu-face and the bottom of the shaft. Rule 2(5. If in any mine the winding apparatus is not provided with some automatic contrivance to prevent overwinding, then the cage, when men are being raised, shall not be wound up at a speed exceeding thi-ee miles an hour, after the cage has reached a point in the shaft to be fixed by the special rules. Rule 27. A sufficient cover overhead shall be used for (ivery cage or tub emploj-ed in lowering or raising persons in any working shaft, except where the cage or tub is worked by a windlass, or where persons are emi^loyed at work in the shaft, or where a written exemption is given by the inspector of the district. Rule 28. A smglo linked cliain shall not be used for lowering or raising persons in any working shaft or plane excei)t for the short coupling chain attached to the cage or tub. Rule 29. There shall be on the drum of every machine used for lowering or raising jjersons, such flanges or horns, and also if the drum is conical, such other appliances as may be sufficient to prevent the rope from slipping. An information was preferred under the same sub-seetion in the Act of 1872 against the part owner of a coal mine, in which one of the general rules reyrulating the employment of machines had not been complied with. The general rules were put up in various parts of the mine, and the defendant occasionally visited the mine, but resid(!d at a distance, and took no pait in the manafi-ement of the mine, which was under the extdusive control of the certificated manag-er, who was also part owner. The defendant was not examined as a witness, but it was admitted that he had not personally taken any means to enforce the rules. The justices fovmd, as a fact, that the defendant had taken all reasonable means by publishing, and, to the best of his power, enforcing, the rules as regulations for the working of the mine, to prevent such non-compliance, and dismissed the information. Held, that there was evidence from which the justices might properly come to that conclusion : Baker v. Carter (1878), L. R. 3 Ex.' D. 132. Break and Rule 30. There shall be attached to every machine worked by steam, mc icator. -^-ater, or mechanical power, and used for lowering or raising persons, an ade(|uate break [x) or breaks, and a proper indicator (in addition to any mark on the rope) showing to the person who works the machine the position of the cage or tub in the shaft. If the drum is not on the crank shaft, there shall l)e an adequate break on the drum shaft. Rule;51. Every fly-wheel and all exposed and dangerous parts of the machinery used in or about the mine shall be and shall be kept securely fenced. Rule '.VI. Each steam boiler, whether separate or one of a range, shall have attached to it a proper safety valve, and also a proi)er steam gauge and water gauge, to show respectively the pressure of steam and the height of water in each boiler. Barometer, &c. Rule 33. A barometer and thermometer shall b(> jilaced above ground in a conspicuous position near the entrance to the mine. Fencing machinery Safety valves and gauges for boiler.s. {x) Nimmox. Clark (1872), 10 M. 477. (Pumping gear, though serving the pur- pose of a break, not a break within the Act (23 & 24 Vict. c. 151).) COAL MINES REGULATION ACT, 1887. 415 Rule 34. Where persons are employed underground, ambulances or Stretchers, stretchers, with splints and bandages, shall be kept at the mine ready for immediate use in case of accident. Rule 35. No person shall wilfully damage, or ^vithout proper authority Wilful remove or render useless, any fence, fencing, man-hole, place of refuge, ^.mage. casing, lining, guide, means of signalling, signal, cover, chain, flange, horn, break, indicator, steam gauge, water gauge, safety valve, or other appliance or thing provided in any mine in compliance with this Act. Eule 3G. Every person shall observe such directions with respect to woi'k- Observance of ing as may be given to him with a view to comply with this Act or the ance with in the event of any contravention of or non-compliance with any of the rules, said general rules in the case of any mine to which this Act appUes, by any 416 COAL MINES REGULATION ACT, 1887. person ■whomsoever, the owner, agent and manager shall each be guilty of an offence against this Act, unless he proves that he had taken all reason- able means, by publishing and to the best of his power enforcing the said rules as regulations for the working of the mine, to prevent such contra- vention or non-compliance. A managing director did imt live at the colliery, of which a certificated manager was in cliarge, but oiily nccasioiuilly visited it ; ho had authorised all expenditure necessary for safety, and the iiilcs and absti-act of the Act had been duly published there, lie Id, that he was '" agent " so as to be liable to a penaltj^ for breach of the general rules, but that he had " taken all reasonable means " within sect. 50 to prevent such breach : Stokes v. Chickland (\^^)'i), 68 L. T. (N. S.) 4r)7. See Baker v. Crt>-<«- (1878), 3 Ex. D. 132; Wynne v. Forrester [\^1^)\ 5 C. P. D. 361 ; BcU \. Bruce (1891), 55 J. P. 535 ; Dickenson v. Fletcher (1870), L. R. 9 C. P. 1 (decided on 23 & 24 Vict. c. 151, s. 22). See also Jones v. liohnn, [1901] 1 Q. B. 673. In Stokes V. Milcheson, [1902] 1 K. B. 857. an " agent" had appointed a manager and under-managcr, in consequeuce of whose casual negligence a rule was broken ; there was no evidence of personal negligence on the agent's part, nor was the breach of the rule duo to the agent's omission to enforce the rules. Held, that the justices wore entitled to dismiss the information. Special rules for every mine. Special Rules. 51. — (1) There shall be established in every mine such rules (referred to in this Act as special rules) for the conduct and guidance of the persons acting in the management of such mine or employed in or about the mine as, under the particular state and circumstances of such mine, may appear best calculated to prevent dangerous accidents, and to provide for the safety, convenience and proper discipline of the persons employed in or about the mine. (2) Such special rules, when established, shall be signed in dui)licate by the inspector who is insi^ector of the district at the time the rules are estab- lished, and shall be observed in and about every such mine, (including any extension thereof) in the same manner as if they were enacted in this Act. By sect. 1, sub-sect. (2) of 59 & 60 Vict. c. 43, any special rule established under this Act is susj)euded if inconsistent with any special rule made under that section. (;j) If any person who is bound to observe the special rules established for any mine, acts in contravention of or fails to comply with any of them, he shall be guilty of an offence against this Act, and also the owner, agent and manager of such mine shall each bo guilty of an offence against this Act unless he proves that ho had taken all reasonable means, by publishing and to the best of his power enforcing the rules as regulations for the working of the mine, so as to prevent such contravention or non-compliance. By a special rule made under the same section in the Act of 1872, no person " employed in or about the works " " shall go down or up, or into the pit, contrary to the directions of the banksman or the hooker-on." The workincii had jxiwor to terminate their contracts at a moment's notice. Being dissatisfied with their working places, certain workmen in the pit gave notice of their intention to leave at once. They asked the hooker-on to allow them to ascend, but he refused to do so until the usual time for workmen to quit the mine. The workmen ascended, contrary to lus directions. They were held guilty of a breach of the special rule: nic/ham V. TFrit^ht (1877), L. R. 2 C. P. D. 397. Establishment 52. — (1) The owner, agent or manager of every mine shall frame and of new special transmit to the inspector of the district, tor approval by a Secretary of State, COAL MINES REGULATION ACT, 1887. "il^ special rules for the mine within three months after the commencement of this Act, or within three months after the commencement (if subsequent to the commencement of this Act) of any working for the purpose of opening a new mine or of renewing the working of an old mine. (2) The proposed special rules, together with a printed notice specifying that any objection to the rules on the ground of anything contained therein or omitted therefrom may be sent by any of the persons employed in the mine to the inspector of the district, at his address, stated in the notice, shall, during not less than two weeks before the rules are transmitted to the inspector, be posted up in like manner as is provided in this Act respecting the publication of special rules for the information of persons employed in the mine, and a certificate that the rules and notice have been so posted up shall be sent to the inspector with two copies of the rules, signed by the person sending the same. (3) If the rules are not objected to by the Secretary of State within forty days after their receipt by the insj^ector, they shall be established. 53.— (1) If the Secretary of State is of opinion that the proposed special Secretary of rules so transmitted, or any of them, do not sufficiently provide for the object to prevention of dangerous accidents in the mine, or for the safety or con- special rules, venience of the persons employed in or about the mine, or are unreasonable, he may, within forty days after the rules are received by the inspector, object to the rules, and propose to the owner, agent or manager in wiiting any modifications in the rules by way either of omission, alteration, sub- stitution or addition. (2) If the owner, agent or manager does not, within twenty days after the modifications projjosed by the Secretary of State are received by Mm, object in writing to them, the proposed special rules, with those modifications, shall be established. (3) If the owner, agent or manager sends his objection in writing within the said twenty days to the Secretary of State, the matter shall be referred to arbitration under this Act, and the date of the receijit of the objection by the Secretary of State shall be deemed to be the date of the reference, and the rules shall be established as settled by an award on arbitration. 54. —(1) After special rules are established under this Act in any mine. Amendment the owner, agent or manager of the mine may from time to time propose in rules, writing to the inspector of the district, for the approval of a Secretary of State, any amendment of the rules or any new special rules, and the provisions of this Act with respect to the original special rules shall apply to all such amendments and new rules in like manner, as nearly as may be, as they apply to the original rules. (2) A Secretary of State may from time to time proj)ose in writing to the owner, agent or manager of the mine any new special rules, or any amendment of the special rules, and the provisions of this Act with respect to a proposal of a Secretary of State for modifying the special rules trans- mitted by the owner, agent or manager of a mine shall apply to all such new special rules and amendments in like manner, as nearly as may be, as they api^ly to the proposal. 55. If the owner, agent or manager of any mine makes any false state- False state- ment with respect to the posting up of the rules and notices, he shall be ^^nts, and M. E E 418 COAL MINES REGULATION ACT, 1887. transmit special rules. Certified copy of special rules to be evidence. guilty of au offence against this Act ; and it' special rules for any mine are not transmitted within the time limited by this Act to the inspector for the approval of a Secretary of State, the owner, agent and manager of such mine shall each be guilty of an offence against this Act, unless he proves that ho had taken all reasonable means, by enforcing to the best of his power the provisions of this Act, to sccuie the transmission of the rules. 56. An inspector under this Act sliall. wlien reciuired, certify a copy which is shown to his satisfaction to be a true copy of any special rules which for the time being are established under this Act in anj-^ mine, and a copy so certified shall bo evidence (but not to the exclusion of other proof) of such special rules and of the fact that they are dul5' established under this Act and have been signed bj' the inspector. Publication of abstract of Act and cojjy of special rules. Pulling down or defacing notices. Pxhlicatioii of Ahsfrdd of Art (aid of fipcrinl Rules. 57. I'or the purpose of making known tlio provisions of this Act and the special rules to all persons employed in and about each mine, an abstract of this Act supplied, on the application of the owner, agent or manager of the mine, by the inspector of the district on behalf of a Secretary of State, and a correct copy of all the special rules shall be published as follows : (1) The owner, agent or manager of the mine shall cause the abstract and copy of the rules, with the name of the mine and i\w name and address of the insjiector of the district, and the name of the owner or agent and of the manager appended thereto, to be posted up in legible characters, in some conspicuous place at or near the mine, whero they may be conveniently read by the persons employed ; and 80 often as the same become defaced, obliterated or destroyed, shall cause them to be renewed with all reasonable despatch : (2) The owner, agent or manager shall supply a printed copy of the abstract and tlie special rules gratis to each person employed in or about the mine who apj)lies for a copy at the office at which the persons immediately employed by the owner, agent or manager are paid : (3) Every copy of the special rules shall be kept distinct from any rules which depend only on the contract between the employer and employed. In the event of any non-compliance with the provisions of this section by any person whomsoever, the owner, agent and manager shall each be guilty of an offence against this Act ; but the owner, agent or manager of such mine shall not be deemed guilty if he j^roves that he had taken all reason- able means, by enforcing to the best of his power the observance of this section, to prevent such non-compliance. 58. Every person who pulls down, injures, or defaces any abstract, notice, proposed special rules, or special rules when posted up in pursuance of the provisions of this Act, or any notice posted up in pursuance of the special rules, shall bo guilty of an olTenco against this Act, COAL MINES REGULATION ACT, 1887. 419 PART ni. Supplemental. Legal Proceedings. 59.— (1) Every person employed in or about a mine, other than an owner, Penalty for agent or manager, who is gnilty of any act or omission which in the case of offences an owner, agent or manager would be an offence agamst this Act, shall be deemed to be guilty of an offence against this Act. (2) Every person who is guilty of an offence against this Act, for which a penalty is not expressly prescribed, shall be liable to a fine not exceeding, if he is an owner, agent or manager or under-manager, twenty pounds, and if he is any other person, two pounds, for each offence ; and if an inspector has given written notice of any such offence, to a further fine not exceeding one pound for every day after such notice that such offence continues to be committed. One of several owners may be proceeded aarainst for penalties : R. v. Brown (1857), 7 E. & B. 757. . . 60. Where a person who is an owner, agent, manager or under-manager Imprisonment of or a person employed in or about a mine is guilty of any offence against ^°^' ^^^^^ this Act which, in the opinion of the Court that tries the case, is one which endaugerin" was reasonably calculated to endanger the safety of the persons employed in ^^"^ °^ limb, or about the mine, or to cause serious personal injury to any of such persons, or to cause a dangerous accident, and was committed wilfully by the personal act, personal default, or personal negligence of the person accused, such person shall be liable, if the Court is of opinion that a fine will not meet the circumstances of the case, to imprisonment, with or without hard labour, for a period not exceeding three months. 61. — (1) All offences under this Act not declared to be misdemeanours. Summary and all fines under this Act, and all money and costs by this Act directed to Pi"'^'=^'^"igs be recovered as fines, may be prosecuted and recovered in manner directed fines, &c. by the Summary Jurisdiction Acts before a court of summary jurisdiction. (2) Proceedings for the removal of a check weigher shall be deemed to be a matter on which a court of summary jurisdiction has authority by law to make an order in piu'suance of the Summary Jurisdiction Acts ; and summary orders under this Act may be made on complaint before a coui-t of summary jurisdiction in manner provided by the Summary Jurisdiction Acts. 62. In every part of the United Kingdom the following provisions shall General pro- have effect : visions as to ... , 1 • X • p ,• , •, . , . summary (i) Any complamt or mtormation made or laid m pursuance of this Act proceedings. shall (save as otherwise expressly provided by this Act) be made or laid within three months from the time when the matter of the complaint or information arose : (ii) Any person charged with an offence under this Act, may, if he thinks fit, be sworn and examined as an ordinary witness in the case : (iii) The Court shall, if required by either party, cause minutes of the evidence to be taken and preserved. K E 2 420 COAL MINES REGULATION ACT, 1887. Appeal to 63. If anj- person feels aggrieved by any conviction made by a court of quarter sunnaarv inrisdiction on determining any information under this Act, by sessions. • •' rf ,- . ^■ i ij. which conviction imprisonment or a nne amounting to or exceeding one nali the maximum fine, is adjudged, he may appeal therefrom to a court of quarter sessions in manner provided by the Summary Jurisdiction Acts. An information for broach of a general rule under this Act was dismissed. By the Summary .lurisdictidii Act. 1879, s. 33, " any per.-ion aggrieved " by the justices' cuuvictiuu order or deternunation may apply fur the statement of a special case. The iuformant applied. Ilc/d, that having regard to sub-sect. (2) of sect. 33 aforesaid, and the incorptn-ation therewith of sect. 2 of the Summary Jurisdicticm Act, 1857, the appeal could be entertained : Stnkrs v. Milchcson, [1902] 1 K. B. 857. Liability for 64. If it appears that a boy or girl was employed on the representation of misrepresenta- j^jg q^, }^gj. i),T^i.eut or guardian that he or she was of the age at which his or her employment would not be in contravention of this Act, and under the belief in good faith that he or she was of that age, or that a person has worked alone as a coal or ironstone getter on his representation that he has had two years' experience of such work under the supervision of skilled work- men, or that he has been previously employed for two years in or about the face of the workings of a mine, and under the belief in good faith that he has had such experience or has been so previously employed, the owner, agent or manager of the mine and employer shall be exempted from any penalty, and the parent or guardian or the person who has so worked alone, as the case may be, shall, for the misrepresentation, be deemed guilty of an offence against this Act. This secticm is new. tiou as to age, &c. Prosecution of owners, agents, managers, &c. Report of result of pro- ceedings against workmen. Summary proceedings for offences in Scotland. 65. No prosecution shall be instituted again.st the owner, agent, manager or under manager of a mine for any offence under this Act, not committed personally by such owner, agent, manager or under manager, which can be prosecuted before a court of summary jurisdiction, except by an inspector or with the consent in writing of a Secretary of State ; and in the case of any offence of which the owner, agent, manager or under manager of a mine is not guilty if he proves that he had taken all reasonable means to prevent the commission thereof, an inspector shall not institute any prosecution against such owner, agent, manager or under manager, if satisfied that he had taken such reasonable means as aforesaid. No prosecution shall be instituted against a coroner for any offence under this Act except with the consent in writing of a Secretary of State. 66. Where the owner, agent or manager of a mine has taken proceedings under tliis Act against any person employed in or about a mine in resiject of an offence committed under this Act, he shall, within twenty-one days after the hearing of the case, report the result thereof to the inspector of the district. 67. In Scotland the following provisions shall have effect : (1) The court of summary jurisdiction when hearing and determining an information or complaint shall be the sheriff : (2) All jurisdictions, powers and authorities necessary for the court of summary jurisdiction under this .Vet are hereby confen-ed on that Court : COAL MINES REGULATION ACT, 1887. 421 (3) Every person found liable under this Act by a court of summary jurisdiction in any lino, or to pay any money or costs by this Act directed to be recovered as fines, shall be liable in default of imme- diate pajonent to be imprisoned for a term not exceeding three months, and the conviction and wan-ant may be in the form of No. li of 27 & 28 Vict. Schedule K of the Summary Procedure Act, 1864 : ^- '^^^ (4) Any fine exceeding fifty jiounds shall bo recovered and enforced in the same manner in which any penalty due to Her Majesty under any Act of ParUament may be recovered and enforced : (5) An appeal shall not lie from any conviction made by a sheriflf, save to the next circuit court, or where there are no circuit courts, to the High Court of Justiciary at Edinburgh, in the manner prescribed by such of the provisions of the Act of the twentieth year of the reign of King George the Second, chapter forty-three, and any Acts amending the same, as relate to aj^peals in matters criminal, and by and under the rules, limitations, conditions and restrictions contained in the said provisions. 68. — (1) Nothing in this Act shall prevent any person from being indicted Saving for or liable under any other Act or otherwise to any other or higher penalty or proceedings punishment than is provided for any offence bj' this Act, so, however, that Acts. no person be punished twice for the same offence. (2) n the Coui't before whom a person is charged with an offence under this Act think that proceedings ought to be taken against such person for such ofPence under any other Act or otherwise, the Court may adjourn the case to enable such proceedings to be taken. 69. A 25erson who is the owner, agent or manager of any mine, or a miner Owner of or miner's agent, or the father, son or brother, or father-in-law, son-in-law °"f ^' '■^^• . ° „ . . not to act as or brother-in-law, ot such owner, agent or manager, or of a miner or miner s justice, &c. agent, or who is a director of a companv being the owner of a mine, shall "' pi'oceedings -Ti j.ii'-i under this not, except with the consent of both parties to the case, act as a coui't or Act. member of a court of summary jurisdiction in resiJect of any offence under this Act. 70. Where a fine is imposed under this Act for neglecting to send a notice Application of any explosion or accident or for any offence against this Act which has °* fines, occasioned loss of life or personal injury, a Secretary of State may (if he thinks fit) direct such fine to be paid to or distributed among the persons injured, and the relatives of any persons whose death may have been occa- sioned by the explosion, accident or offence, or among some of them. Provided that — (i) Such persons did not in his opinion occasion or contribute to occasion the explosion or accident, and did not commit and were not parties to committing the offence : (ii) The fact of the payment or distribution shall not in any way affect or be receivable as evidence in any legal proceeding relative to or conse- quential on the explosion, accident or offence. Save as aforesaid — All fines recovered in England or Scotland under this Act shall be paid into the receipt of Her Majesty's Exchequer, and shall be carried to the Consolidated Fund ; 422 COAL MIKES REGULATION ACT, 1887. 14 & 15 Vict, c. 90. All fines recovered in Ireland under this Act shall bo applied in manner dii-ected by the Fines Act (Ireland), 1851, and any Act amending the Decision of question whether a luiiie is under this Act. Powei-s of Secretary of State as to making and revokiug orders. Service of notices. Application of 38 & 39 Vict. c. 55, 8. 38. Interpretation of tei-ms. Miscella7ieous. 71. If any question arises (otherwise than in legal proceedings) whether a mine is a mine to which this Act or the Metalliferous Mines Regulation Act, 187'2, or anj' other Act for the time being in force and relating to metalliferous mines applies, the question shall be referred to a Secretary of State, whose decision thereon shall be final. 72. Any order of or exemption gi-anted by a Secretary of State under this Act may be made, and from time to time revoked, or altered by a Secretary of State, either unconditionally or subject to such conditions as he may see fit, and shall be signed by a Secretary of State or under secretary or assistant under secretary. 73. All notices under this Act shall (unless expresslj^ required to be in print) be either in writing or print (including lithograph), or partly in writing and partly in print (including lithograph), and all notices and documents required by this Act to be served or sent by or to an inspector may be either delivered personally, or served and sent by post by a prepaid letter ; and, if served or sent by post, shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post ; and in proving such service or sending it shall be sufficient to prove that the letter containing the notice was properly addressed and put into the post. 74. Section thirty-eight of the Public Health Act, 1875 (which relates to privy accommodation for any house used as a factory or building in wliich both sexes are employed), shall apply to the portions of a mine which are above ground, and in which girls and women are employed, in like manner as if it were herein re-enacted with the substitution of "those portions of the mine " for the house in the said section mentioned. 75. In this Act, unless the context otherwise requires, — " Mine " includes everj' shaft in the course of being sunk, and everj' level and inclined plane in the course of being driven, and all the shafts, levels, planes, works, tramways, and sidings, both below ground and above ground, in and adjacent to and belonging to the mine : " Shaft " includes pit : " Plan " includes a correct copy or tracing of anj' original plan : " Owner," when used in relation to any mine, means any person or body corporate who is the immediate proprietor or lessee, or occupier of any mine, or of any pai't thereof, and does not include a person or body corporate who merely receives a royalty, rent, or fine from a mine, or is merely the proprietor of a mine subject to any lease, gi-aut, or license, but any contractor for the working of any mine, or any part thereof, shall be subject to this Act in like manner as if he were an owner, but so as not to exempt the owner from any liability : Seo Stott V. Dickinson (1876), 34 L. T. (N. S.) 291. COAL MINES REGULATION ACT, 1887. 423 " Agent," when used in relation to any mine, means any person appointed as the representative of the owner in respect of any mine, or of any part thereof, and as such superior to a manager appointed in pursuance of this Act : See Stohes v. Mellor (187')), 39 J. P. 788. "Secretary of Stato " means one of Her Majesty's Principal Secretaries of State : " The Treasury " means the Commissioners of Her Majesty's Treasury : " Boy " means a male under the ago of sixteen years {y) : " Girl " means a female under the age of sixteen years (y) : " Woman " means a female of the age of sixteen years or upwards. 76. In the application of this Act to Scotland— Application (1) The term " Attorney General " means the Lord Advocate : Scotland. (2) The term " injunction" means interdict : (3) The term " misdemeanour " means " crime and offence " : (4) The term "chairman of quarter sessions" means the sheriff of the county : (5) The term " sheriff " includes shei'iff siibstituto : (6) The term "attending on subpoena before a court of record" means attending on citation the Court of Justiciary : (7) The auditor of the sheriff court of the county or disti'ict of a county in which any inquiry takes place shall perform the duties of a master of one of the superior courts imder this Act : (8) " County court judge, police magistrate, stipendiary magistrate, recorder, or registrar of a county coiu't " means a sheriff or a sheriff substitute : (9) Notices of explosions, accidents, loss of life, or personal injury shall be deemed to be sent to the inspector of the district on behalf of the Lord Advocate : (10) Sections forty-one and sixteen of the Public Health (Scotland) Act, 1867, shall respectively be substituted for sections thirty-eight and ninety-one of the Public Health Act, 1875. (11) The term " public elementary school" means State-aided school. Nothing in this Act shall affect any provision in the Education (Scotland) Acts, 1872 to 1883. 77. In the application of this Act to Ireland, — Application (a) The expression "the Summary Jui-isdiction Acts" means, as regards ipgUnd the Dublin metropolitan police district, the Acts regulating the powers and duties of justices of the peace and of the police of that district, and elsewhere, in Ireland, the Petty Sessions (Ireland) Act, 1851, and the Acts amending the same. (b) In hearing and determining a charge under this Act, a court of summary jurisdiction elsewhere than in the Dublin metropolitan police district, shall be constituted of two or more justices of the peace or of a resident magistrate, with or without other justices, sitting in petty sessions ; and a resident magistrate means a magistrate (y) See note on s. 4, supra. 424 COAL MINES REGUI.ATIOX ACT, 1887. 41 & 42 Vict. c. 52. appointed pursuant to tho Act of the session of tho sixth and seventh years of the reign of King William the Fourth, chapter fourteen : (c) Sections forty-eight and one hundred and seven of the Public Health (Ireland) Act, 1878, shall respectively bo substituted for sections thirty-eight and ninety-one of the Public Health Act, 1875. (d) Tho expression '"police or stipendiary magistrate" means resident magistrate : •' Master of one of Her Majesty's Superior Courts " means a taxing master of the High Court of Justice in Ireland : " Eegistrar of a county court " means clerk of the peace : " London Gazette" means Dublin Gazette : " Attorney- General" means Attorney-General for Ireland : " Chairman of quarter sessions " means county court judge. Existing inspectors and examining boards continued. Existing certificates and registers continued. Grant of certificates of service in case of certain under managers. Transitory Provisions and Repeal. 78. The persons who at the commencement of this Act are acting as inspectors under the Acts hereby repealed, and the boards for appointing examiners for manager's certificates under those Acts, shall continue to act in the same manner, and generally to be in the same position, as if they had been respectively appointed under this Act. 79. All orders made by a Secretary of State under any Act repealed by this Act, which are in force immediately before the commencement of this Act, shall be deemed to have been made under this Act(z); and all certificates of competency or of service granted under any Act repealed by this Act which arc in force immediately before the commencement of this Act, shall be deemed to be first class certificates granted under this Act ; and the register of holders of certificates, and the other registers which at the commencement of this Act are kept in pursuance of the Acts hereby repealed, shall be deemed to be registers or parts of registers kept in pursuance of this Act. 80.— (1) A certificate of service shall be granted by a Secretary of State to every person who satisfies him either that before the passing of this Act he was exercising, and has since that date exercised, or that he has at any time within five years before the passing of this Act for a period of not less than twelve months exercised, functions substantially corresponding to those of an under manager in a mine. (2) Every such certificate of service shall contain particulars of the name, place, and time of birth, and the length and nature of the previous service of the person to whom the same is delivered, and a certificate of service may be refused to any person who fails to give a full and satisfactory account of tho particulars aforesaid, or to pay such registration fee as the Secretary of State may direct, not exceeding that mentioned in the Second Schedule to this Act. (3) A certificate of serA-ice granted under this section shall have the same (z) See Dickinson sub-sect. (3), supra. Handsley (1889), 60 L. T. (N. S.) 567, and note on sect. 12, COAL MINES REGULATION ACT, 1887. 425 effect for the purposes of this Act as a second class certificate of competency granted under this Act. Sections 81 and 82 are spent. 83. Any enactment or document referring to any Act repealed by this Construction Act, or to anj' enactment thereof, shall be construed to refer to this Act, and °* references to the corresponding enactments thereof. Acts. 84. The Acts described in Schedule Four to this Act are hereby repealed. Repeal of Provided that this repeal shall not affect any exemption granted, or other ^*^*^' thing done or suffered before the commencement of this Act ; and all offences committed and penalties incurred and proceedings commenced before the commencement of this Act may bo punished, recovered, continued and complet(Hl in tho same manner as if this Act had not passed. As to repealing Acts passed since January 1, 1890, see Interpretation Act, 1889, s. 38. SCHEDULES. SCHEDULE ONE. Section 24. » Proceedings of Board for Examinations. 1 . The board shall meet for the despatch of business, and shall from time to time make such regulations with respect to the summoning, notice, place, management and adjournment of such meetings, ami generally with respect to the transaction and management of business, including the quorum at meetings of the board, as they think tit, subject to the following conditions : — (a) Any regulations made by the board constituted under the Acts repealed by this Act, and in force at the commencement of this Act, shall continue in force till repealed or altered by the board ; (b) An extraordinary meeting may be held at any time on the written requisition of three members of the board addressed to the chairman ; (c) The quorum to be fixed by the board shall consist of not less than three members ; (d) Every question shall be decided by a majority of votes of the members present and voting on that question ; (e) Tho names of the members present, as well as those voting upon each question, shall be recorded ; (f) No business shall be transacted unless notice in writing of such busi- ness has been sent to every member of the board seven days at least before the meeting. 2. The board shall from time to time appoint some person to be chairman, and one other person to be vice-chairman. 3. If at any meeting the chairman is not present at the time appointed for holding th(! same, the vice-chairman shall be the chairman of the meeting, and if neither the chairman nor vice-chairman shall be present, then the members present shall choose some one of their number to be chairman of such meeting. 4. In case of an equality of votes at any meeting, the chairman for the time being of such meeting shall have a second or casting vote. 5. The appointment of an examiner may be made by a minute of the board signed by the chairman. 6. The board shall keep minutes of their proceedings, which may be inspected or copied by a Secretary of State, or any person authorised by him to inspect or copy the same. 426 COAL MINES RKGULATION ACT, 1887. Sections 25 and 30. SCHEDULE TWO. Table of Maximum Fees to be paid in kespect of Certificates. First Class Certificate. By an applicant for oxamination Two pounds. For copy of certificate Five shillings. Second Class Certificate. By an applicant for examination One poimd. For copy of certificate Two shillings and sixpence. Section 33. SCHEDULE THREE. Coal Mines Regulation Act, 1887 (50 w) Sect. 20, inspectt^rt's' annual re- agents ; the proviso exempting mines ports; sect. 21, arbiti-ation ; .sect. 22, where not mure than twelve persons are coroner's inquests. employed. For the etlect of the Notice of {») Sects. 24—30, special rules and Accidents Act, li»0(i, upon this section, their publication; sects. 31 — 3S, penal- see the note on it at p. 383, .>«^r«r. 434 NOTICE OF ACCIDENTS ACT, 1894. Application of provisions as to notice. Power to hold formal investi- gation in case of serious accidents. on his ordinary ivorh [pp), his employer shall, as soon as possible and, in case of an accident not resulting in death, not later than six days after the occurrence of the accident, send to the Board of Trade notice in writing of the accident, specifying the time and place of its occurrence, its probable cause, the name and residence of any person killed or injured, the work on which any such person was employed at the time of the accident, and, in the case of an injury, the nature of the injury. (2) If any person wilfully makes default in complying with the reciuire- ments of this section he shall be liable on summary conviction to a fine not exceeding forty shillings. (3) Repealed hy Notice of Acddnits Act, 1906, ivhidi is jirinted infra, p. 859. 2. — (1) Section one of this Act shall a])ply to the employments specified in the schediilo to this Act. (2) If the Board of Trade are of opinion that any other employment in which twenty jicrsons or more, not being domestic servants, are employed by the same employer, is specially dangerous to life or limb, the Board may, by order, direct that section one of this Act shall apply to that employment, and thereupon, while the order is in force, that section shall apply accordingly. (3) The Board of Trade may, by order, revoke or modify any order made under the foi'egoing powers, and modify or limit the application of section one of this Act to the employments specified in the schedule to this Act. (4) The Board of Trade may also, by order, require any further particulars to be specified in the notice to be sent in pursuance of section one of this Act. (5) Every order made imder this section shall bo notified in the London Gazette and in such other manner as may appear to the Board of Trade sufficient for giving publicity thereto, and shall be laid before both Houses of Parliament as soon as may be after it is made. 3. AVhere it appears to the Board of Trade that any accident {q) involving loss of life or bodily injury is of sufficient impoi'tance to require a formal investigation of the accident, and of its causes and circumstances, the Board may by order direct such investigation to be held, and with respect to any such investigation the following provisions shall have effect : — (1) The Board may appoint a competent person to hold the investigation, and may appoint any person possessing legal, medical, or special knowledge to act as assessor in holding the investigation, and may assign to any such person such remuneration as the Board, with the approval of the Treasury, determine : (2) The person appointed to hold the investigation (herein -after called the Court) shall hold the same in open court in such manner and under such conditions as the Court may think most effectual for ascertaining the causes and circumstances of the accident, and enabling the Court to make the report in this section mentioned : (3) The Court shall have for the piu-pose of the investigation all the powers of a court of summary jvuisdiction when acting as a Court in the exercise of ( pp) For the words in italics are to be substituted " cause him to he absent throutrhout at least one whole day from his ordinary work " ; Notice of Accidents Act, 1906, 8. 6 (printed infra). {q) Scil. in the named employments. See (Jox\. Hakes (1890), 15 A. C. 506, per Lord Halsbury, at pp. 517, 518, NOTICE OF ACCIDENTS ACT, 1894. 435 its ordinary jurisdiction, and all tho powers of an inspector under the Rail- way Regulation Acts, 1840 to 1889, and in addition the following powers; namely — (a) Power to enter and inspect, or to authorise any person to enter and inspect, any place or building tho entry or inspection whereof appears to the Court requisite for tho said purpose ; (b) Power, by summons signed by tho Court, to require the attendance of all such persons as it thinks fit to call before it and examine for tho said purpose, and for that purpose to require answers or returns to such inquiries as it thinks fit to make ; (c) Power to require the production of all books, papers, and documents which it considers important for the said purpose ; (d) Power to administer an oath and require any person examined to make and sign a declaration of the truth of the statements made by him in his examination : (4) Every person attending as a witness before the Court, and not being the employer of the person killed or injured, or in the employment of that employer, shall be allowed such expenses as would be allowed to a witness attending before a court of record, and in case of dispute as to the amount to be allowed the same shall be referred by the Court to a master of the Supreme Court, who on request signed by the Court shall ascertain and certify the proper amount of the expenses : (5) The Court holding an investigation under this section shall make a report to the Board of Trade, stating the causes of the accident and its circumstances, and adding any observations which the Court thinks right to make, and the Board may cause any such report to be made public in such manner as the Board think fit : (6) The Court may order any costs and expenses incurred in and about an investigation under this section (including any remuneration payable to any person appointed to hold the investigation or to act as assessor) to be paid by any person summoned before it, if it finds that the accident was due to the act or default or negligence of that person ; and any such order shall, on the application of any person entitled to the benefit thereof, be enforced by any court of summary jurisdiction as if the costs and expenses were a penalty imposed by the Court : but subject to any such order such costs and expenses shall be deemed to be part of the expenses of the Board of Trade in the execution of this Act : (7) If any person without reasonable excuse (proof whereof shall lie on him) either fails, after having had the expenses (if any) to which he is entitled tendered to him, to comply with any summons or requisition of a Court holding an investigation under this section, or prevents or impedes the Court in the execution of its duty, he shall for every such offence be liable, on summary conviction, to a fine not exceeding ton pounds, and in the case of a failure to comply with a requisition for making any return or producing any document shall be liable, on summary conviction, to a fine not exceeding ten pounds for every day that such failure continues. 4. The expenses of the Board of Trade in the execution of this Act shall Expenses of ovided r F 2 be do^'raved out of moneys to be provided by Parliament. Jl'^^^^^ "^ ' Trade 436 NOTICE OF ACCIDENTS ACT, 1894. Application to Govern- ment depart- ments. Saving's. Application to Scotland. Application to Ireland. Short title. 5. This Act shall apply in the case of acciihmts occurring to persons employed by a department of the Government, and in such cases the notice to be given by the employer shall be given by such person as the depart- ment by general rule direct. 6. Nothing in this Act shall apply to any employment which is for the time being regulated by any Act of Parliament administered by the Secretary of State or by inspectors appointed bj' him, or shall require notice to be given of any accident of which notice is required by any other Act to be given to the Board of Trade. 7. In the application of this Act to Scotland- - The expression " court of summary jurisdiction " shall moan the sheriff : The expression "master of the Supreme Court" shall moan the auditor of the Court of Session. Every order made under this Act and required to be notified in the London Gazette, shall, if it relates to Scotland, be notified in the Edinburgh Gazette. 8. In the application of this Act to Ireland the expression "master of tlie Supreme Court" shall mean a taxing master of the Supreme Court. Every order made under this Act and recjuired to be notified in the London Gazette, shall, if it relates to Ii'eland, be notified in the Dublin Gazette. 9. This Act may bo cited as the Notice of Accidents Act, 1894. SCHEDULE. 1. Construction, use, working, or repair of any railway, tramroad, tram- way, gaswork, canal, bridge, tunnel, harbour, dock, port, pier, quay, or other work authorised by any local or personal Act of Parliament. 2. Construction or re])air by means of a scaffolding of any building which exceeds thiity feet in height, or use or working of anj^ such building in which more than twenty persons, not being domestic servants, are employed for wages. 3. Use or working of any traction engine or other engine or machine worked by steam in the open air. 437 CHAPTER YII. AGRICULTURAL GANGS. 30 & 31 VICT. c. 130 (1867). An Act for the Regulation of Agricultural Gangs. 1. This Act may be cited for all purposes as " The Agricultm-al Gangs Short title. Act, 1867." Section 2 {Coininencemtnt) repealed by Statute Law Revision {No. 1) Act, 1893. 3. The following words and expressions shall in this Act have the mean- Definition of ings herebj' assigned to theiu, unless there is something in the context term.s. inconsistent with such meanings ; that is to say, " Child " shall mean a child under the ago of thirteen years : " Young Person " shall mean a person of the age of thirteen years and under the age of eighteen years : " Woman " shall mean a female of the age of eighteen years or upwards : "Ganginaster" shall mean any person, whether male or female, who hires children, young persons, or women with a view to their being employed in agricultural labour on lands not in his own occupation ; and, until the contrary is proved, any children, young persons, or women employed in agricultural labour on lands not in the occu- pation of the person who hired them shall be deemed to have been hii'ed with the aforesaid view : " Agricultural Gang" shall mean a body of children, young pei'sons, and women, or any of them, under the control of a gangmaster. 4. The following regulations shall be observed by every gangmaster with Regulations respect to the employment of children, young persons, and women : ^s to gangs- [(1) No child under the ago of eight («) years shall bo employed in any agricultural gang :] (2) No females shall bo employed in the same agricultural gang with males : (a) This sub-section was repealed by inay by bye-law ... fix thirteen years the Ap:riciiltural Children Act, 1873, as tlic niininiuin aire for exemprion from which was itself repealed by the Kle- school attendance in the case of children mentary Education Act, 1876. The age to be employed in agriculture." See under which all employment is pro- Elementary Education Act, 1876, s. 5, hibited ia now raised to "twelve" by the Elementary Education Act, 1880, sect. 1 of the Elementary Education s. 4, and the Elementary Education Act, (School Attendance) Act (1893) Amend- 1893, printed with notes, in/rn. See ment Act, 1899. By the same section also Employment of Children Act, 1903, " the local authority for any district ss. 1, 3. 438 AGRICULTURAL GANGS REGULATION ACT. Gang'inasteis to be licensed. Licences not to be granted to keejJers of public houses. Licences to gangmasters. Renewal of licences. Fees in respect of licences. Licence, how affected by conviction of gangmaster. (3) No female sliall bo employed in any gang under anj^ male gangmaster unless a t'omale licensed to act as gangmaster is also present with that gang: And any gangmaster employing any child, young person, or woman in contravention of this section, and any occupier of land on which such employment takes place, unless he proves that it took place without his knowledge, shall respectively be liable to a penalty not exceeding twenty shillings for each child, young jjerson, or woman so employed. 5. No person sliall act as a gangmaster unless he has obtained a licence to act as such under this Act. Any person acting as a gangmaster without a licence under this Act shall incur a penalty not exceeding twenty shillings for every day during which he so acts. 6. No licence shall be granted to any person who is licensed to sell beer, spirits, or any other exciseable liquor. 7. Licences to gangmasters shall be granted by two or niore justices in divisional petty sessions, on due proof to the satisfaction of such justices that the applicant for a licence is of good character, and a fit person to be intrusted with the management of an agricultural gang. The justices shall annex to their licence a condition limiting, in such manner as they think expedient, the distances within which the children employed by such gangmaster are to be allowed to travel on foot to their work, and any gangmaster violating the condition so annexed to his licence shall for each offence be liable to a penalty not exceeding ten shillings. Any jierson aggrieved by the refusal of the justices to grant him a licence to act as gangmaster may appeal to the next practicable Court of General or Quarter Sessions ; and it shall be lawful for such Court, if they see cause, to grant a licence to the applicant, which shall be of the same validity as if it had been granted by the justices in petty sessions. Since the Local Government Act, 1894, these licences are granted by the district council in a council district, and by the toAvn council in a county borough (sects. 27, 32, ibid.). The fees are payable to the councils (sect. 27, sub-sect (3)). The right of appeal to Quarter Sessions remains. 8. Licences under this Act shall bo in force for six months only, and may be renewed on similar proof to that on which an original licence is granted. 9. Theie shall be charged in respect of each grant or renewal of licence a fee of one shilling, and such fee shall be accounted for and appHed in manner in which the fees ordinarily received by the authority granting the licence are applicable. See note on sect. 7, supra. 10. On any couvicticjn of a gangmaster of any offence against this Act the justices who convict him shall indorse on his licence the fact of such conviction ; and on any conviction of such gangmaster of a second offence against this Act the justices may, in addition to any other penalty, withhold his licence for a period not exceeding three months ; and on any conviction of any gangmaster of a third offence against this Act the justices may, in addition to any other penalty, withhold his Hcenco for a jjcriod not exceeding two years. AGRICULTURAL GANGS REGULATION ACT. 439 And after a fourth conviction for an offence against this Act the gang- master shall bo disqualified from holding or receiving a licence under this Act. 11. All penalties under this Act may be recovered summarily before two Recovery of or more justices in manner directed by an Act passed in the session holden penalties, in the eleventh and twelfth years of the reign of Ilor Majesty Queen Victoria, chapter forty-three, intituled, An Act to facilitate the Ptrformayice of the Duties of Justices of the Peace out of Sessions within England and Wales tvith respect to suunnary Convictions and Orders, or any Act amending the same. 12. This Act shall not apply to Scotland or Ireland. Extent of Act. 440 CHAPTER VIII. EMPLOYMENT OF CHILDREN. The employment of cliildren has been greatly restricted and regulated by recent legislation. The prohibition, on pain of penalty, imposed upon their employment in dangerous performances by 42 & 43 Vict. c. 34 was extended by 4 Edw. 7, c. 15, to begging, whether under the guise of public performance or other- wise (sect. 2 (a) ), to presence for the purpose of public performances for profit in auy street or premises licensed for the sale of intoxi- cating liquor other than licensed theatres, &c. between nine p.m. and six a.m. (sect. 2 (b) ), or licensed or used for public entertain- ment (sect. 2 (c) ), and to training as acrobats (sect. 2 (d) ) ; though licences for children of over ten years of age may be issued in the two latter cases (sect. 3) ; and the enforcement of this section is committed to the officers of the local authority {a) who are, for that purpose, to possess the powers of factory and workshop in- spectors (sect. 3, sub-sect. (2)). By the Employment of Children Act, 1903 (3 Edw. 7, c. 45), the local authority [a) is em- powered by bye-laws to regulate the conditions of the employ- ment {(() of childr<3n {a) under fourteen in all or any specified occupation (sect. 1), and by bye-law or licence to regulate street- trading (fl) under sixteen (sect. 2). Section 3 contains restric- tions as to hours in auy kind of employment and absolute prohibition of certain kinds of employment. Section 5 imposes penalties. An officer of the local authority {(() may, in execution of this Act, under a justice's order, enter any place of employment and examine it or any person therein (sect. y parents. Limitation of time. default, or by habitually uegleotiug to oxorciso due care, he shall bu liable on summary conviction to the like fine. (3) If any person under the age of sixteen contravenes the provisions of any bj'e-law as to street trading made under this Act, ho shall bo liable on summary conviction to a fine not exceeding twenty shillings, and in case of a second or subsequent offence, if a child, to bo sent to an indixstrial school, and, if not a child, to a fine not exceeding five pounds. (4) In lieu of ordering a child to be sent under this section to an industrial school, a court of summary jurisdiction may order the child to be taken out of the charge or control of the person who actually has the charge or control of the child, and to be committed to the charge and control of some fit person who is willing to undertake the same until such child reaches the age of sixteen years : And the provisions of sections seven and eight of the Prevention of Cruelty to Children Act, 1894 {n), shall, with the necessary modifications, apply to any order for the disposal of a child made under this sub-section. 6. — (1) AVherc the offence of taking a child into employment in contra- vention of this Act is in fact committed by an ag(uit or workman of the employer, such agent or worknuui shall bc^ liable to a penalty as if he were the employer. (2) Where a child is taken into employment in contravention of this Act on the production, by or with th(! privity of the parent, of a false or forged certificate^ or on the false representation of his parent that the child is of an age at which such employment is not in contravention of this Act, that parent shall bo liable to a penalty not exceeding forty shillings. (8) Where an employer is charged with any offence under this Act he shall be entitled, upon information duly laid by him, to have any other person whom he charges as the actual offender brought before the Court at the time appointed for hearing the charge, and if, after the commission of the offence has been proved, the Court is satisfied that the employer had used due diligence to comply with the provisions of the Act, and that the other person had committed the offence in question without the employer's knowledge, consent, or connivance, the other person shall be summarily convicted of the offence, and the employer shall be exempt from any fine. (4) When it is made to appear to the satisfaction of an inspector or other officer charged with the enforcement of this Act, at the time of discovering the offence, that the employer had used all due diligence to enforce com- pliance with this Act, and also by what person the offence had been committed, and also that it had been committed without the knowledge, consent, or connivance of the employer, and in contravention of his order, then the inspector or officer shall proceed against the person whom he believes to be the actual offender in the first instance without first procee^ding against the employer. 7. With respect to summary proceedings for offences and lines under this Act, and any bye-laws made thereunder, the information shall be laid within three months after the commission of the offence. The ordinary time of limitation is six months: 11 & 12 Vict. c. 43, s. 11. («) Now repealed and replaced by 4 Edw. 7, c. 15 : see sects. 7 and 8 oi that Act, EMPLOYMENT OF CHILDREN. 447 8. If it appear to any justice of the peace, on the complaint of an officer Power of of the local authority acting under this Act, that there is reasonable cause to "^.^'^j.^ t believe that a child is employed in contravention of this Act in any place, enter place of whether a building or not, such justice may by order under his hand employment, empower an officer of the local authority to enter such place at any reason- able time, within forty-eight hours from the date of the order, and examine such place and any person therein touching the employment of any child therein. Any person refusing admission to an officer authorised by an order under this section, or obstructing him in the discharge of liis duty, shall for each offence be liable on summary conviction to a penalty not exceeding twenty pounds. Cf. sect. 2'J of Elementary Education Act, 1876, printed infra. 9. Bye-laws made under this Act shall not apply to any child above Employment twelve employed in pursuance of the Factory and Workshop Act, 1901, or m factories. the Metalliferous Mines Regulation Act, 1872, or the Coal Mines Eegulation ., ,^" '' p . ^ . c. 22. Act, 1887, so far as regards that employment ; and in the application of g^ ^ gg y^^^ section three to children employed under those Acts the inspectors appointed c. 77. under those Acts shall be substituted for the local authority in respect of 50 & 51 Vict, such employment. ^' 10. Nothing in this Act or in any bye-law made thereunder shall apply Saving for to the exercise of manual labour by any child under order of detention in a industrial and certified industrial or reformatory school, or by any child while receiving instruction in manual labour in any school. 11. Eepealed by 4 Edw. 7, c. lo (o). Incorpora- 12. Any expenses incurred by a local authority in England and Wales in tion and carrying into effect the provisions of this Act or any bye-law made there- ^^ , ,, - under shall be defrayed in the case of a county out of the county fund, and 57 & 58 Vict, in the case of a borough out of the borough fund or borough rate, and in the ^- Pl- ease of any other urban district out of any rate or fund applicable for Expenses of defraying expenses incurred in the execution of the Public Health Acts : gjjo-iand and Provided that a county council shall not raise any sum on account of their Wales, expeiises under this Act within any borough or lU'ban district the council of which is a local authority under this Act. 13. In this Act— Definitions. The expression "child" means a person under the age of fourteen years : The expression " guardian," used in reference to a child, includes any person who is liable to maintain or has the actual custodj- of the child : The expressions "employ " and " employment," used in reference to a child, include employment in any laboiu- exercised by way of trade or for the purposes of gain, whether the gain be to the child or to any other person : The expression "local authority" means, in the case of the City of London, the mayor, aldermen, and commons of that city in common (o) See sect. 3 of that Act, which embodies the repealed section, 448 EMPLOYMENT OF CHILDREN. council assembled, in the case of a municipal borough with a popula- tion according to the census of nineteen hundred and one of over ten thousand, the borough council, and in the case of any other urban district with a population according to the census of nineteen hundred and one of over twenty thousand, the district council, and elsewhere the county council : The expression "street trading" includes the hawking of newspapers, matches, flowers, and other articles, playing, singing, or performing for ])rofit, shoe-blacking, and any other like f)Ccupation carried on in streets or i)ublic places. Application 14. In the application of this Act to Scotland— to Scotland. (i) The Secretary for Scotland shaU be substituted for the Secretary of State : (2) "The sheriff or sheriff-substitute" shall bo substituted for "a court of summary jurisdiction " : (3) Any fine or penalty under this Act shall bo recoverable by imprison- ment in terms of the Summary Jurisdiction Acts : (4) The expression " local authority," in sections one and three of this Act, shall mean the school board ; and in section two of this Act shall mean, in the case of a royal, parliamentary, or police burgh having, within its boundary for police piu'poses, according to the census of nineteen hundred and one, a population of or exceeding seven thousand, and in the case of the burgh of Coatbridge, the town council, and elsewhere the county council, and for the purposes of section two every burgh other than those herein-before specified shall bo held to form part of the county within which it is situated : Provided that in section eight of the Local Government (Scotland) Act, 1889, the expression "purposes herein-after mentioned" shall be deemed to include the purposes of this Act : (o) Nothing in this Act shall affect the power of the school board to grant exemptions in certain employments as provided by sub-section 41 & 42 Vict three of section seven of the Education (Scotland) Act, 1878, and the c. 78. expression " this Act " in the said section shall be deemed to include the Employment of Children Act, 1903 : (6) A bye-law shall not be made by a council under this Act until the expiry of a period of one month after such bye- law as proposed to be made has been commiinicated to the clerk to each school board of a parish, burgh, or district, comprised or partly comprised within the area of such council for the purpo.ses of this Act, and such council shall give due consideration to any observations received from any such school board within such period ; and (7) Nothing in this Act shall make it lawful for any child to be employed in contravention of section six of the Education (Scotland) Act, 1878, 1 Edw. 7, or section two of the Education (Scotland) Act, 1901 : ^' (8) Section two hundi-ed and seventy-six of the Burgh Police (Scotland) 55 & 56 Vict. ^^^^ jgg2, is hereby repealed. Expenses of 15> Any expenses incurred by a local authority in Scotland in carrying Act in into effect the jirovisions of this Act or any bye-laws made thereunder shall Sec an . 1^^ paid, where the local authority is a county council, out of the public EMPLOYMENT OF CHILDREN. 449 health general assessment leviable within the county or a district of the county, provided that in any royal, parliamentary, or jjolice burgh having, according to the census of nineteen hundred and one, a population of less than seven thousand, a proportion of such expenses corresponding to the valuation of such burgh shall be paid to the county council out of the public health general assessment leviable in such burgh, in compliance with a' requisition to that effect to be sent to the town council of such burgh annually not later than the month of October in each ye'AT, and, where the local authority is a town council, out of the public health general assess- ment, and shall be paid, where the local authority is a school board, out of the school rate. 16. In the application of this Act to Ireland — Application (1) The Lord Lieutenant shall be substituted for the Secretary of State : *« Ireland. (2) The exjDression "local authority" means, in the case of an urban district with a population according to the census of nineteen hundred and one of over five thousand, the district council, and elsewhere the county council : (3) Proceedings under this Act may be brought by or in the name of any officer of the local authority, or by an officer of a school attendance committee, or bj^ a constable : (4) All expenses and costs to be incurred by a local authority in the execution of this Act shall be defrayed in the case of the council of a county borough or of a district council out of any rate or fund applicable to the purposes of the Public Health (Ireland) Act, 1878, 41 & 42 Vict. and in the case of a county council out of the county fund, and in ^- ^'-• such case the amount requii'ed therefor may be raised by means of the poor rate equally over so much of the county as does not comprise any urban district the council whereof is constituted a local authority under this Act. 17. This Act shall come into operation on the first day of January one Commence- thousand nine hundred and four. ment of Act. 18. This Act may be cited as the Employment of Children Act, 1903. Short title. M. G G 450 CHAPTER IX. EDUCATION OF CHILDREN IN EMPLOYMENT. The Factory and Workshop Act, 1001, deals specially with this question (a) ; while the Education Acts avail themselves for the enforcement of their regulations of the machinery of inspection provided hy other special Acts (h). The Coal Mines Regulation Act, 1887, omits the Education clauses contained in the old Act of 1872, leaving the matter, like its sister Act dealing with metalliferous mines, to the operation of the Education Acts, Children on canal-boats are subject to the Elementary Education Acts (c). The sections in various statutes (d) which permit the employer to make deductions from wages and pay them directly to the school authorities in respect of education fees have ceased to be important since the practical abolition of school fees by the Education Act, 1891. The age at which a child, on obtaining a certificate of the standard he has reached, may be exemj^ted totally or partially from school attendance was raised by the Elementary Education (School Attendance) Act (1893) Amend- ment Act, 1899, to " twelve " ; and the age up to which such a certificate is required for exemption was raised to " fourteen " by the Elementary Education Act, 1900, s. (). As to attend- ance of children at school. 33 & 34 VICT. c. 75 (1870). An Act to provide for PnJilic Klf'.mcntaru Education in Enr this section shall be set out in an appendix to the annual report of the Education Department. The last clause of the proviso in sub-sect. (2) has caused difficulties. In cases whore the bye-laws and the provisions of special Acts have conflicted, the decisions have contradicted one another. In Iii(r;i v. (Vicrri/hohii (187G), 1 Ex. D. 457, the respondent's child, beinj;' cnijiloyed in a workshop, had attended school ten hours a week. The Workshop Ilefi^idation Act, 1SS7, required attendance for " at least ten liours in every week " ; the bye-laws required longer attendance. IFc/d, that ten hours was only the minimum, and that there had been a breach of the bye-laws. But in 3Mlor v. Denham (1879). 4 Q. B. D. 241. the Court held that the bye-law was not enforceable in sucli aca.se ; and that the Elementary Education Acts did not in this respect control the Factory Acts. Tliis difficulty has, however, been largely removed by sect. 4 of the Education Act, 1880 : see Stevenson v. Goldatraw, [1906] 2 K. B. 298. There are other reasonable excuses beside'* those enumerated in this seoti(m : Belper School Attendance Committee v. Bayley (1882). 9 Q. B. D. 2-')9 (parents ha vino- taken every reasonable means to enforce attendance) ; London School Board v. Duycjan (1884), 13 Q. B. D. 176 (child fairly instrucited, of respectable parents, earning wages to support brothers and sisters, who otherwise could not have been sup- ported). Elementary FAucatian Act, 1873. 36 & 37 VICT. c. 86. Section 24, sub-sect. 4. Any justice may require by summons any parent or employer of a child, required by a bye-law to attend school, to produce the child before a court of summary jurisdiction, and any person failing, without reasonable excuse to the satisfaction of the Court, to comiily with such summons shall bo liable to a penalty not exceeding twenty shillings. Declaration of duty of parent to educate child. Regulation of employment of child under 12, and certificate of education or previous 39 & 40 VICT. c. 79 (1876). PART I. Law as to Employment and Education of Children. 4. It shall be the duty of the parent (A;) of every child to cause such child to receive efficient elementary instruction in reading, writing, and arithmetic, and if such pai'ent fail to perform sixch duty, he shall be liable to such orders and penalties as are provided by this Act. 5. A person shall not, after the commencement of this Act, take into his employment (except as hereinafter in this Act mentioned) any child — (1) Who is under the age of twelve years ; or (2) Who, being of the age of twelve years or upwards, has not obtained such certificate either of his proficiency in reading, writing, and s. (3), this section "shall have effect as if the sanction therein referred to were the sanction of the Board of Education instead of the sanction of Her Majesty in Council." (^■) See note {e). EDUCATION OF CHILDREN IN EMPLOYMENT. 453 elementarj' arithmetic, or of previous due attendance at a certified school attend- efHcient school, as is in this Act in that behalf mentioned, unless such ance being child, being of the age of twelve years or upwards, is employed, and emplovment is attending school in accordance with the provisions of the Factory of child Acts (/) or of any byo-law of the local authority (hereinafter mentioned) ^^^'^ ^^• made under section seventy-four of ' ' The Elementary Education Act, 1870," as amended by "The Elementary Education Act, 1873," and this Act, and sanctioned by the Education Department. The effect of the Elementary Education Act, 1899, and the Factory and Workshop Act, 1901, s. Ql. is to substitute " twelve " for " ten " throuorhout this section. See the provisions continued in the Prevention of Cruelty to Children Act, 1904, the Mines (Prohibition of Child Labour Under irround) Act, 1900. and the Employ- ment of Childi'en Act, 190:<, as to the employment of children, jn-inted supra. 6. Every person who takes a child into his employment in contravention Penalty for of this Act shall be liable, on summarv conviction, to a penalty not exceeding employing s . 1 ^^^■ ' child in con- forty shillings. travention of See sect. 2 of the Elementarv Education fSchool Attendance) Act, 1893. 7. The provisions of this Act respecting the employment of childi'en shall Enforcement be enforced — °^ '^*^*- (1) In a school district within the jurisdiction of a school board by that board ; and (2) In every other school district by a committee (in this Act referred to as a school attendance committee) appointed annually, if it is a borough, by the council of the borough, and if it is a parish, by the guardians of the union comprising such parish. A school attendance committee under this section may consist of not less than six nor more than twelve members of the council or guardians appointing the committee, so, however, that, in the case of a committee appointed by guardians, one-third at least shall consist of ex officio guardians, if there are any and sufficient ex officio guardians. Every such school board and school attendance committee (in this Act referred to as the local authority) shall, as soon as may be. piiblish the pi'ovisions of this Act within their j urisdiction in such a manner as they think best calculated for making those provisions known. Provided that it shall be the duty of the inspectors and sub-inspectors acting under the Acts regulating factories, workshops, and mines respec- tively, and not of the local authority, to enforce the observance by the employers of children in such factories, workshops, and mines, of the provisions of this Act resj^ccting the employment of children ; but it shall be the duty of the local authority to assist the said inspectors and sub- inspectors in the performance of their duty by information and otherwise. It shall be the duty of such local authority to report to the Education Department any infraction of the provisions of section seven of ' ' The Elementary Education Act, 1870," in any public elementary school within their district which may come to their knowledge, and also to forward to the (;) Now the Factory and Workshop Act, 1901. 454 EDUCATION OF CHILDREN IN EMPLOYMENT. Education Department any complaint which they may receive of the infrac- tion of those provisions. But the local education authority is now that provided by the Education Act, 1902 : see sects. 1 and 5. 8. [Refers to sections in Workshop or Factory Acts, and is repealed by " Factory and Workshop Act, 1878," sect. 107.] But the repe;il of this section does not affect the power under sect. 11, sub- sect. (1) of this Act to make attendance orders in the case of children " under this Act pro- hibited from bcinur taken into full time employment," that description applyinj^ to all tho children mentioned in sect, h of this Act: Whiynrd v. Touquod [\%%'l), 10 Q. B. D. 2KS, overruling Sa'Oider.s v. Craiv/urd (1882), 9 Q. B. D. 613. Exception to prohibition of employment of children. Power of officer of local autho- rity to enter place of employment. 9. A person shall not be deemed to have taken any child into his employ- ment contrary to the provisions of this Act, if it is proved to the satisfaction of the Cotu-t having cognizance of the case either — (1) That diuing the employment there is not within two miles, measured according to the nearest road, from the residence of such child any public elementary school open which the child can attend ; or (2) That such employment, by reason of being during the school holidays, or during the hours during which the school is not open, or otherwise, does not interfere with the efficient elementary instruction of such child, and that the child obtains such instruction by regular attend- ance for full time at a certified efficient school or in some other equally efficient manner ; or (3) That the employment is exempted by the notice of the local auth(jrity hereinafter next mentioned ; (that is to say). The local authority {m) may, if it thinks tit, issue a notice exempting from the prohibitions and restrictions of this Act the employment of children above the age of eight years, for the neces- sary operations of husbandry and the ingathering of crops, for the period to be named in such notice, provided that the jicriod or jieriods so named by any such local authority shall not exceed in the whole six weeks between the first day of January and the 31st day of December in any year. The local authority (/«) shall cause a copy of every notice so issued to be sent to the Education Department and to the overseers of every parish within its jurisdiction, and the overseers shall cause such notice to be fixed to the door of all churches and chai)els in the parish, and the local authority may further advertise any such notice in such manner (if any) as it may think fit. 29. If it appears to any justice of the peace, on the complaint of an officer of the local authority acting under this Act, that there is reasonable cause to believe that a child is employed in contravention of this Act, in any place, whether a building or not, such justice may by order under his hand empower an officer of the local authority to enter such jjlace at any risason- able time within forty-eight hours from the date of the order and examine (m) See Education Act, 1902, ss. 1 and 5. EDUCATION OF CHILDREN IN EMPLOYMENT. 455 such placo and any person found therein touching the employment of any child therein. Any person refusing admission to au officer authorised by an order under this section or obstructing him in the discharge of his duty, shall, for each offence, be liable on summary conviction to a penalty not exceeding twenty pounds. 39. Where the offence of taking a child into employment in contravention Exemption of of this Act is in fact committed by an agent or workman of the employer, iimployerj)n such agent or workman shall be liable to a penalty as if he were the (,f gome other employer. person. Where a child is taken into employment in contravention of this Act on the production by or with the privity of the parent of a false or forged certificate, or on the false representation of his parent that the child is of an age at which such employment is not in contravention of this Act, that parent shall be liable to a penalty not exceeding forty shillings. Wliere an employer charged with taking a child into his employment in contravention of this Act proves that he has used due diligence to enforce the observance of this Act, and either that some agent or workman of his employed the child without his knowledge or consent, or that the child was employed either on the production of a forged or false certificate and under the belief in good faith in the genuineness and truth of such certificate, or on the representation by his parent that the child was of an age at which his emploj-ment would not be in contravention of this Act and vmder the belief in good faith in such representation, the employer shall be exempt from any penalty. Where an employer satisfies the local authority (?n), inspector, or other person about to institute a prosecution, that he is exempt under this section by reason of some agent, workman, or parent being guilty, and gives all facilities in his power for proceeding against and convicting such agent, workman, or parent, such authority, inspector, or person shall institute proceedings against such agent, workman, or parent, and not against the employer. 47. A parent of a child who employs such child in any labour exercised Definition of by way of trade or for the purposes of gain shall be deemed for the purposes employment of this Act to take such child into his employment. ' parent. Elementary Education Act, 1880. 43 & 44 VICT. c. 23. 4. Every person who takes into his employment a child of the age of Enforcing of twelve {n) and under the age of fourteen (o) years, resident in a school district, bye-laws, before that child has obtained a certificate of having reached the standard of education fixed by a bye-law in force in the district for the total or partial (m) See Education Act, 1902, ss. 1 («) See note [g), supra. and 5. (o) See note (/), supra. 456 EDUCATION OF nriLDRKN IN EMrLOYMENT. exemption of chiJflren of the liko aQ:o from thp obligation to attend sclaool, shall be deemed to take such child into his employment in contravention of the Elementary Education Act of 187G, and shall bo liable to a penalty accordingly. Proceedings may, in the discretion of the local authority ( p) or person instituting the same, bo taken for punishing the contravention of a bye-law, notwithstandiug that the act or neglect or default alleged as such contraven- tion constitutes habitual neglect to provide ethcient elementary education for a child within the meaning of section eleven of the Elementary Education Act, 1876 (7) : Provided that nothing in this section shall prevent an employer from employing any child who is employed by him or by any other person at the time of the passing of this Act, and who attends school in accordance with the provisions of the Factory and Workshop Act, 1901. The second parajrraph of tins section negatives the decision in E.r part-j London School Board, Re M'O-phi/ (1877), 2 Q. B T>. ;597, where it was held that in such a case proceedings must be taken under the statute and not under the bye-laws. 56 & 57 VICT. c. 51 (1893). An Act to amend the Elementary Kdacation Acts wiili respect to tlie Aije for Attendance at School. Age for ex- emption from school attendance. 33 & 34 Vict. c. 75. Penalty for employment of children before exemp- tion from school attendance. 39 & 40 Vict, c. 71). Savincr. Commence- ment of Act. 1. The age at which a child may, in i)ursuance of any bye-law made under the Elementary Education Acts, 1870 to 1891, obtain total or j^artial exemp- tion from the obligation to attend school, on obtaining a certificate as to the standard of examination which ho has reached, shall be raised to eleven, and every such bj^e-law, so far as it provides for such exemj^tion, shall be construed and have effect as if a reference to eleven years of age were sub- stituted therein for a reference to a lower age, and in section seventj^-four of the Elementary Education Act, 1870 (r), eleven shall be substituted for ten. 2. If any person takes a child into his employment in such manner as to prevent the child from attending school in accordance with the bye-laws for the time being in force in the district in which the child resides, he shall be deemed to take the child into his employment in contravention of the Elementary Education Act, 1876 (*), and shall be liable to a penalty accordingly. 3. Nothing in this Act shall iipply in the case of any child who, at the passing of tliis Act, is under the bye-laws then in force in the district in which he resides, exemi)t wholly or partially, as the case may be, from the obligation to attend school. 4. This Act shaU come into operation on the first day of January one thousand eight hundred and ninety-four. ( p) See and 5. Education Act, 1902, ss. 1 (5) That is, childi-en habitually neglected by parents, habitually wan- dering, or consorting with criminals. (»•) Printed supra. {nj See sect. 6, printed supra. EDUCATION OF CHILDREN IN EMPLOYMENT. 457 5. This Act may be cited as the Elementary Education (School Attend- Short title, ance) Act, 1893, and shall bo read with the Elementary Education Acts, 1870 to 1891. 62 & 63 VICT. c. 13 (1899). A7i Act to uiaend the Law respect in;/ the Emploijriient and Education of Yoimg Children. 1. On and after the first day of January one thousand nine hundred the Amendment Elementary Education (School Attendance) Act, 1893, shall have effect as if y^^^^ ^ ^J " twelve " were substituted therein for " eleven " : Provided that nothing in this Act shall apply in the case of any child who at the said date is, under the bye-laws then in force in the school district in which he resides, exempt wholly or partially, as the case may be, from the obligation to attend school : Provided also that the local authority for any district may, by bye-law for any parish within their district, fix thirteen years as the minimum age for exemption from school attendance in the case of children to be employed in agriculture, and that in such parish such children over eleven and under thii-teen years of age who have passed the standard fixed for partial exemp- tion from school attendance by the bye-laws of the local authority shall not be required to attend school more than two hundred and fifty times in any year. Such bye-law shall have effect as a bye-law made under section seventy- four of the Elementary Education Act, 1870 {t), and all Acts amending the same. The local authority shall be the local authority fixed by section seven of the Elementary Education Act, 1876 (t;). Provided also that a child shall be entitled to obtain partial exemption from school attendance on attaining the age of twelve years if such child has made three hundred attendances in not more than two schools during each year for five preceding years whether consecutive or not. See Stevenson v. Crnig, [1906] 2 K. B. 298. 2. This Act may be cited as the Elementary Education (School Attend- Short title ance) Act ( 1 893) Amendment Act, 1899, and shall be read with the Elementary ""<^ Education Acts, 1870 to 1897. The Elementary Education Act, 18^3, is printed mpra. (t) Printed supra. («) See the note on that section at p. 454, supra. 458 EDUCATION OF CHILDREN IN EMPLOYMENT. Elementary Education Act, 1900. 63 & 64 VICT. c. 53 (1900). 6. — (1) In section seventy-four of the Elementary Education Act, 1870, and in section four of the Elementary Education Act, 1880 (which relate to bye-laws for the attendance of children at school), fourteen years shall be substituted for thirteen years. (2) The maximum penalty for breach of a bye-law requiring the attendance of a child at an elementary school, or of an attendance order made under the Elementarj' l-iducation Act, 187(5, shall b(! twenty shillinj^s, and accordingly twenty shillings shall be substituted for five shillings in section seventy-four of the Elementary Education Act, 1870, and in section twelve of the Elementary Education Act, 1876. (3) The said section seventy-four shall have effect as if the sanction therein referred to were the sanction of the Board of Education instead of the sanction of Iler Majesty in Council. See sect. 74 of the Elementary Edm^ation Act, 1870, printed ;it p. 4.50, supra. 459 CHAPTER X. CONCILIATION ACT, 1896. This Act, having for its object the settlement of trade disputes, has repealed all former Arbitration Acts (sect. 7). It confers (sect. 2) powers of arbitration and mediation in such disputes upon the Board of Trade. It also provides (sect. 1) for the registration and supervision of already existing boards of con- ciliation. 59 & 60 VICT. c. 30. An Ad to make better Provision for the Freveution and Settlement of Trade Disputes. 1. — (1) Any board establislied either before or after tbe passing of this Registration Act, which is constituted for the purpose of settling disputes between ^^^po^s'^s employers and workmen by conciliation or arbitration, or any association or ^^^^ Boards, body authorised by an agreement in writing made between employers and workmen to deal with such disputes (in this Act referred to as a conciliation board) may apply to the Board of Trade for registration under this Act. (2) The application must be accompanied by copies of the constitution, bye-laws, and regulations of the conciliation board, with such other informa- tion as the Board of Trade may reasonably require. (3) The Board of Trade shall keep a register of conciliation boards, and enter therein with respect to each registered board its name and principal office, and such other particulars as the Board of Trade may think expedient, and any registered conciliation board shall be entitled to have its name removed from the register on sending to the Board of Trade a written application to that effect. (4) Every registered conciliation board shall furnish such returns, reports of its proceedings, and other documents as the Board of Trade may reason- ably require. (5) The Board of Trade may, on being satisfied that a registered con- ciliation board has ceased to exist or to act, remove its name from the register. (G) Subject to any agreement to the contrary, proceedings for conciliation before a registered conciliation board shall be conducted in accordance with the regulations of the board in that behalf. 2. — (1) Where a difference exists or is apprehended between an employer, Powers of or any class of employers, and workmen, or between different classes of Board of 460 CONCILIATION ACT, 1896. Trade as to trade disputes. Exclusion of 52 & 53 Vict. c. 49. Power for Board of Trade to aid establishing conciliation boards. Report to Parliament. Expenses. Repeal. 5 Geo. 4, 0. 96 ; 30 & 31 Vict. c. 105 ; 35 & 36 Vict. c. 46. Short title. workmen, the Board of Trade may, if they think fit, exercise all or any of the following powers, namely : — (a) inquire into the causes and circumstances of the difference ; (b) take such steps as to the Board may seem expedient for the purpose of enabling? the parties to the difference to meet together, by themselves or their representatives, under the presidency of a chaii-man mutually agreed upon or nominated by the Board of Trade or by some other person or body with a view to the amicable settlement of the difference ; (c) on the application of employers or workmen interested, and after taking into consideration the existence and adequacy of means available for conciliation in the district or trade and the circumstances of the case, appoint a person or persons to act as conciliator or as a board of conciliation ; (d) on the application of both parties to the dill'erencc, appoint an arbitrator. (2) If any person is so appointed to act as C(mciliator, he shall inquire into the causes and circumstances of the difference by communication with the parties, and otherwise shall endeavour to bring about a stittlement of the difference, and shall report his proceedings to the Board of Trade. (3) If a settlement of the difference is effected, either by conciliation or by arbitration, a memorandum of the terms thereof shall be drawn up and signed by the parties or their representatives, and a copy thereof shall bo delivered to and kept by the Board of Trade. 3. The Arbitration Act, 1889, shall not apply to the settlement by arbitration of any difference or dispute to which this Act applies, but any such arbitration proceedings shall be conducted in accordance with such of the provisions of the said Act, or such of the regulations of any conciliation board, or under such other rules or regulations as may be mutually agreed upon by the parties to the difference or dispute. 4. If it appears to the Board of Trade that in any district or trade adequate means do not exist for having disputes submitted to a conciliation board for the district or trade, they may appoint any person or persons to inquire into the condition of the district or trade, and to confer with the employers and employed, and if the Board of Trade think fit, with any local authority or body, as to the expediency of establishing a conciliation board for the district or trade. 5. The Board of Trade shall from time to time present to Parliament a report of their proceedings under this Act. 6. The expenses incurred by the Board of I'radc in tlie (>xec\ition of this Act shall be defrayed out of moneys provided by Parliament. 7. The Masters and Workmen Arbitration Act, 1824, and the Councils of Conciliation Act, 1867, and the Arbitration (Masters and AVorkmeu) Act, 1872, are hereby repealed. 8. This Act may be cited as the Conciliation Act, 18!)(). 461 CHAPTER XI. FACTORY AND WORKSHOP ACT, 1901 («). [1 Edw. 7, o. 22.] This Act repeals all previous Factory and Workshop Acts {an), and consolidates the law with amendments. Some of the principal amendments are : — Sect. 4. Power of Secretary of State to act in default of local authority. Sect. 11. Safety-valves and gauges on steam-boilers. Sect. 13 (1) (b). Restriction on children cleaning machinery in motion. Sects. 14 (1) (6) (7) and 15. Fire-escapes. Sects. 62 and 156. Childi-en under twelve not to be employed. Sects. 79 — 85. Regulations as to dangerous trades. Sects. 104 and 106. Terms "factory," "workshop" and "plant" extended for the purpose of applying certain provisions. Sects. 112 and 115. "Domestic" factories defined and made subject to provisions as to dangerous processes. Sect. 129. General registers to be kept. Sect. 150. Crown factories and workshops included. Sect. 149 and Schedule 6, Part I. (20), Part 11. (28). Additions to " non-textile factories and workshops." The powers of district councils, particularly with regard to the sanitary superintendence of " workshops " and " workplaces," are very much extended. The provisions of the repealed Cotton Cloth Factories Acts together with the Secretary of State's orders made under them are embodied in sects. 90 — 96 of this Act. See for a short review of Factory Legislation, Evans Austin's Law Relating to Factories and Workshops (2nd ed. 1901), Intro- duction, c. i. p. xxiii. («) The Factory and Workshop Act, {aa) With the temporary exceptions 1907, which deals with " Laiindries " mentioned in Sched. 7, Part II., see and certain "Institutions," is printed sect, 101, at p. 863, post. 4b2 FACTORY AND WORKSHOP ACT, 1901. By sect. 126 the Secretary of State is given power to make or rescind special orders ; and by sect. IHl, sub-sect. (2) it is provided : — " All orders and all special rules and requirements made or having effect under any enactment hereby rej^ealed shall continue to have effect as if they had been made under this Act." Penalties and the procedure for their recovery are dealt witli in sects. 18')— 148. AERANGEMENT OF SECTIONS. PART I. Heai/ih and Safety. (i) Health. 1. Sanitary condition of factory. 2. Sanitary condition of workshops and workplaces. ;}. Overcrowding of factory or workshop. 4. Power of Secretary of State to act in default of local authority. 5. Powers of inspector as to sanitary defects in factory or workshop lemediable by sanitary authority. 6. Temperature in factories and workshops. 7. Ventilation. 8. Drainage of floors. 9. Sanitary conveniences in factories and workshops. (ii) S^„. B. & 0. Rev. 1904, Vol. IV., Factory and Workshop, p. 4; L. G-., Feb. 10, 1902.) See sects. Ill and 157 lis is new. b-sect. (2). 600 cubic feet of fresh air per hour for each person has beoii pre- ed iu the case of "textile factories other than cotton cloth factories." (St. Drainage of floors. Sanitary con- veniences in factories and workshops. 8. (1) Tn every factory or workshop or part thereof in which any process is carried on which renders the floor liable to be wot to .such an extent that the wet is capable of being removed by drainage, adequate moans shall be provided for draining off the wet. (2) A factory in which there is a contravention of the provisions of this section shall be deemed not to be kept in conformity with this Act, and a workshop in which there is a contravciution of the provisions of this section shall bo doomed to bo a nuisance liable to bo dealt with summarily under the law relating to public health. This is new. See sects. Ill (4) (e), 157, 103 (1) (d). 9. (1) Every factory and workshop must be provided with sufficient and suitable accommodation in the way of sanitary conveniences, regard being had to the number of persons employed in or in attendance at the factory or workshop, and also where persons of both sexes are or are intended to be employed or in attendance, with ])roper separate accommodation for persons of each sex. (2) The Secretary of State shall, by special order, determine what is sufficient and suitable accommodation within the moaning of this section. (3) A factory or workshop in which there is a contravention of this section shall be deemed not to be kept in conformity with this Act. (4) This section does not apply to the administrative county of London, or to any place whore section twenty-two of the Public Health Acts Amend- ment Act, 1890, is in force. Sub-sect. (1). " In attendance" : see Bennett v. ILirdin;/, [1900] 2 Q. B. 397. Sub-sect. (2) is new. Under the Act of 1895 this was the duty of an inspector or the local authority. See sect. 157 (1). Sub-sect. (2). See order dated February 4, 1903. (St. R. & O. Rev. 1904, Vol. IV., Factory and Workshop, p. 5; L. G., Feb. 17, 1903.) FACTORY AND WORKSHOP ACT, 190 1. 473 (ii) Saftttj. 10.— (1) With respect to the fencing of machinery in a factory th(; follow- Fencing- of 1 1, r £c i uiiichinery. lug provisions shall have eftect : — •' (a) Every hoist or teagle, and every fly-wheel directly connected with the steam or water or other mechanical power, whether in the engine- house or not, and every part of any water wheel or engine worked by any such power, must be securely fenced ; and (b) Every wheel-race not otherwise secured must bo securely fenced close to the edge of the wheel-race ; and (c) All dangerous parts of the machinery (A'), and every part of the mill gearing (A-), must either be securely fenced, or be in such position or of such construction as to be equally safe to every person employed or working in the factory as it would be if it were secui'ely fenced ; and (d) All fencing must be constantly maintained in an efficient state while the parts required to be fenced are in motion or use, except where they ai-e under repair or under examination in connexion with repair, or are necessarily exposed for the purpose of cleaning or lubricating or for altering the gearing or aiTangements of the jxirts of the machine. (2) A factory in which there is a contravention of this section shall be deemed not to be kept in conformity with this Act. As to application of this and tbe eight following sections to laundries, see sect. 103 (1) (d). Tlie machinery need not be fenced when not in motion for the purpose of a manufacturing process: Cm v. Piatt (^185'2), 7 Ex. 923. It i.s not enough that the machinery is fenced in the ordinary manner, used and approved as sufficient at the best-regulated factory in the district: Schofit-kl v. dchunk (186.')), -H L. T. 253. It is no ansAver to an action for not fencing a shaft that the shaft is so high up and out of the way as not to be dangerous : Docl v. Shrpperd (1856), 5 E. A: B. 856. Liability in summary proceedings under this section and sect. 136 for not fencing is not affected by the fact that the workman's injuries were suffered in consequence of his own carelessness and disobedience : Blcnkinsop v. Ogdcn, [1898] 1 Q. B. 783. Though a penalty for omission to fence is imposed by sect. 136, an action for damages by a workman injured thereby will lie against the employer : Groves v. Lord Jfi/n/ionif, [1898] 2 Q. B. 402. Nor is •' common employment" any defence to sucli an action : Ibid. Sub-sect. (c). This sub-section inoliiries all the machinery in a factory — that which performs the industrial process as well as that which conveys the motive power : Rvdyrave v. Lloyd, [1895] 1 Q. B. 876 ; and it is for the Court to say what is " dangerous " : Ibid., per "Wills, J., p. 880. '• Machinery is ' dangerous ' if, in the ordinary course of human affairs, danger may be reasonably anticipated from the use of it without protection " : Per Wills, J., in Hindle v. Birtwhtstle, [1897J 1 Q. B. 192, 195. 11. — (1) Every steam boiler used for generating steam in a factory or Steam boilers, workshop, or in any place to which any of the provisions of this Act apply, must, whether separate or one of a range — (a) have attached to it a proper safety valve and a proper steam gauge and water gauge to show the pressure of steam and the height of water in the boiler ; and (b) be examined thoroughly by a competent person at least once in every fourteen months. (/.') Dutined in sect. 156. 474 FACTORY AND WORKSHOP ACT, 1901. (2) Every such boiler, safety valve, steam gauge, and water gauge must be maintained in proper condition. (3) A report of the result of every such examination in tlio prescribed form, containing the prescribed particulars, shall within fourteen days be entered into or attached to the general register of the factory or workshop, and the report shall be signed by the person making the examination, and, if that person is an inspector of a boiler-inspecting company or association, by the chief engineer of the company or association. (4) A factory or workshop in which there is a contravention of this section shall be deemed not to be kept in conformity with this Act. (5) This section shall not apply to the boiler of any locomotive which belongs to and is used by any railway company, or to any boiler belonging to or exclusively used in the service of His Majesty. (fi) For the purposes of this section, the whole of a tenement factory or workshop shall be d(!emed to be one factory or workshop, and the owner shall be substituted for the occui)ier, and he shall register the report referred to in this section. This is new. Rejrulations as to sclf- actiufi;' machines. 12, — (1) In a factory erected on or after the first day of January ono thousand eight hundred and ninety-six, tlie traversing carriage of any self- acting machine must not be allowed to run out within a distance of eighteen inches from any fixed structure not being part of the machine, if the space over which it runs out is a space over which any person is liable to pass, whether in the course of his employment (/) or otherwise. Provided that nothing in this sub-section shall prevent any portion of the traversing carriage of any self-acting cotton spinning or woollen spinning machine being allowed to rvm out within a distance of twelve inches from any part of the head stock of another self-acting cotton spinning or woollen spinning machine. (2) A person employed in a factory must not be allowed to be in the space between the fixed and the traversing parts of a self-acting machine unless the machine is stopped with the traversing part on the outward run, but for the purpose of this provision the space in front of a self-acting machine shall not be included in the space aforesaid. (3) Awoman(7Ji), young person (m), or child (m), must not be allowed to work between the fixed and traversing part of any self-acting macihine while the machine is in motion by the action of steam, water, or other mechanical power. (4) A factory in which a traversing carriage is allowed to run out in con- travention of this section shall be deemed not to be kept in conformity with this Act, and any person allowed to be in the space aforesaid or to work in contravention of this section shall be deemed to be employed contrary to the provisions of this Act. Sub-sect. (1). The proviso is new. Sub-sects. (2) and (3). "Allowed 18 Times L. R. 91. see (Jrabtreey. Fern Spinning T'w. (1!)01), [I) Defined in sect. 152. (///) Detiucd ill sect. 156. FACTORY AND WORKSHOP ACT, 1901. 475 13. — (1) A child {m) must not be allowed to clean in any factory — Restrictions (a) any part of any machinery ; or when (b) any place under any machinery other than overhead mill gearing, machinery is while the machinery is in motion by the aid of steam, water, or other *" ^'^ ''^°- mechanical power. (2) A young person (in) must not be allowed to clean any dangerous part of the machinery in a factory while the machinery is in motion by the aid of steam, water, or other mechanical power ; and for this purpose such parts of the machinery shall, unless the contrary is proved, bo presumed to bo dangerous as are so notified by an inspector to the occupier of the factory. (3) A woman {m) or young person (/h) must not be allowed to clean such part of the machinery in a factory as is mill-gearing while the machinery is in motion for the purpose of propelling any part of ilw manufacturing machinery. (4) A woman, yoimg person, or child, allowed to clean in contravention of this section, shall bo deemed to be employed contrary to the provisions of this Act. Sub-sect. (1) (b) is new. Sub-sect. (1). The alteration of the wording in this sub-section gives effect to the decision (on sect. 9 of the old Act) in Pearson v. Belgian Mills Co., [1896] 1 Q. B. 244, viz., that a child was prohibited frura cleaning the motionless parts of any machinery that was in motion. 14. — (1) Every factory of which the construction was not commenced on Provision of or before the first day of January one thousand eight hundred and ninety- nicans of •,•,•1,1 Pi 111 1 escape m two, and m which more than forty persons are employed, and every worls- ^j^gg ^f gj.g_ shop of which the construction was not commenced before the first day of January one thousand eight hundred and ninety-six, and in which more than forty persons are employed, must be furnished with a certificate from the district council of the district in which the factory or workshop is situate that the factory or workshop is provided with such means of escape in case of fire for the persons employed therein as can reasonably be required under the circumstances of each case, and if the factory or workshop is not so fm-nished it shall be deemed not to be kept in conformity with this Act ; and it shall be the duty of the council to examine every such factory and workshop, and, on being satisfied that the factory or workshop is so provided, to give such a certificate as aforesaid. The certificate must specify in detail the means of escape so provided. (2) "With respect to all factories and workshops to which the foregoing provisions of this section do not apply, and in which more than forty persons are employed, it shall be the duty of the district council of every district from time to time to ascertain whether all such factories and workshops within their district are provided with such means of escape as aforesaid, and, in the case of any factory or workshop which is not so provided, to serve on the owner of the factory or workshop a notice in writing specifying the measures necessary for providing such means of escape as aforesaid, and requii'ing him (w) Defined in sect. 15G. 476 FACTORY AND WORKSHOP ACT, 1001. to carry them out Lot'oro a specified date, and thoroupon tlio owner shall, notwithstanding any agreement with the occupier, have power to take such steps as are necesi?:ary for com})lying with the recpiirements, and unless the requirements are complied with, the owner shall be liable to a fine not exceeding one pound for every day that the non-compliance continues. (.3) In case of a dift'erence of opinion between the owner of the factory or workshop and the council under the last foregoing sub-section, the difference shall, on the application of eitlier party, to be made within one month after the time when the difference arises, be referred to arbitration, and thereupon the provisions of the First Schedule to this Act shall have effect, and the award on the arbitration shall be binding on the parties thereto, and the notice of the council shall bi^ discharged, amended, or confirmed in accord- ance with the award. (4) If the owner alleges that the occu])ior of the factory or workslioj) ought to bear or contribute to the exi)euses of compljang with the requirement, he may apply to the (county court having jurisdiction where the factory or workshop is situate, and thereupon the county court, after hearing the occupi(n-, may make such order as appears to the Court just and equitable under all tlie circumstances of the case. (5) For the purpose of enforcing the foregoing provisions of this section, an inspector may give the like notice and take the like proceedings as under the foregoing provisions of this Act witli respect to matters punishable or remediable under the law relating to public heulth but not under this Act, and those provisions shall apply accordingly. (6) The means of escape in (!ase of fire ])rovided in any factor}^ or workshop shall bo maintained in good condition and free froin obstruction, and if it is not so maintained the factory or workslioj) shall be deemed not to be kept in conformity with this Act. (7) For the purposes of this section the whole of a tenement factory or workshop shall be deemed to be one factory or workshop, and the owner shall be substituted for the occupier. (8) All expenses incurred by a district council in the execution of this section shall b(! defrayed — (a) In the case of an urban district council, as part of their expenses of the general execution of the Public Health Act, 1875 ; and (b) In the case of a rural district council, as special expenses incurred in the execution of the Public Health Act, 1875 ; and those expenses shall be charged to the contributory place in which the factory or workshop is situate. Sub-sects, (b) and (7) are new. The second, third and fourth Hours uf a building v/erc let to separate tenants and were "factories" ; the basemcut, griniud and first floors, having regard to the business carried on by the tenants there, were not " factories " : Ilild, that the second, tliird and fourth floors onhf were " factories " within sect. 93 of the Act of 1878 (which section defines "factory" in suhstantially the same way as sect. 149 of this Act) : London County Council v. Lewis (I'JOO), r)9 L. J. Q. B. 277. There is no jurisdiction to require the owner in such a case to provide a means of escaiic from tire whicli would involve an encroachiucnt on the lower floors: Ihid. All the lower floors of a building up to the fourth, except the second, formed a FACTORY AND WORKSHOP ACT, 1901. '^^^ factory occupied by one tenant ; the second floor was not a factory ; the fifth , sixth and seventh floors formed another factory occupied by another tenant : Hfld, that the two factories Avere separate factories ; that the notices and the award under this section requiring a staircase to bo constructed were bad, inasmuch as they had treated the factories as one factory ; that there was nothinsi: in this Act giving the owner the right to enter upon one factory to construct works except for the benefit of titut factory ; and that, as each of the occupiers produced his own power, the building was not a "tenement factory" within sect. 149 of this Act: Toller v. Spiers and Pond, [1903] 1 Ch. 362. Sub-sect. (4). A lessor sued the lessee of a factory in the county court to recover the expenses incurred in providing an escape from fire, under a covenant in the lease " to pay .... all .... charges .... and outgoings whatsoever " : Held, that the county court judge has jurisdiction, whatever be the legal effect of the covenant, to apportion the expenses as may seem just and equitable to him under all the circura.stances of the case : Mo)ik v. Arnold, [1902] I K. B. 761. The term " outgoings " in a covenant by the lessee of a factory " to pay .... all ... . outgoings " includes expenses incurred by the lessor under this section : ITorwCT- v. ^Vffw/.7;;C[1904] 2 K. B. 877. The only procedure open to the lessor to recover such expenses is an application to the county court under this sub-section, when the judge may take into considera- tion any contract or covenant between the parties : Ibid. ; affirmed, C. A. [1905] 1 K. B. 479. Sub-sect. (7). A ground floor was let to one tenant and was a f actor j'- ; a base- ment, ground floor and two upper stories were let by the same lessor to other tenants and were a factory ; there was no internal comuiunicatiou between the two factories, and they were entered from different streets ; the two top stories of the latter projected 66 ft. by 24 ft. over the former ; each factory supplied its own motive power ; an aw;u-d was made under this section requiring works to be carried out which involved a trespass ou the premises of the former fac'tory : Held, that, inasmuch as each factory supplied itself independently with motive power and the two factories were not " within the same close or curtilage," the premises did not form a " tenement factorv " within sect. 149: Brans \. Londo)i County Council, [1904] 2 K. B. 336. 15. Every district council shall, in addition to any powers which they Bye-laws for possess with reference to the prevention of fire, have power to make bye- means of laws proviiling for means of escape from fire in the case of any factory or ^^"^ ^ workshop, and sections one hvmdred and eighty-two to one hundred and eighty-six of the Public Health Act, 1875, shall apj)ly to any bye-laws so made. This is new. 16. — (1) While any person employed in a factory or workshop is within Doors of the factorv of workshop for the purpose of employment or meals, the doors factory or , ■, f n J^ ■ ■ 1-1 1 workshop to of the factory or workshop, and of any room therein m which any such ^ j fj.,,jj^ person is, must not be locked or bolted or fastened in such a manner that inside. they cannot be easily and immediately opened from the inside. (2) In every factory or workshop the construction of which was not com- menced before the first day of January one thousand eight hundred and ninety-six, the doors of each room in which more persons than ten are employed, shall, except in the case of sliding doors, bo constructed so as to open outwards. (3) A factory or workshop in which there is a contravention of this section shall be deemed not to be kept in conformity with this Act. 17, — (1) A court of summary jurisdiction may, on complaint by an Power to inspector, and on being satisfied that any part of the ways, works, ™ake order machinery, or plant used in a factory or workshop (including a steam boiler dano-erous machine. 478 FACTORY AND WORKSHOP ACT, 1901. used for generating steam), is in such a condition that it cannot bo used without danger to life or limb, by order, prohibit its use, or, if it is capable of repair or alteration, prohibit its use until it is duly repaired or altered. (2) Where a complaint has been made under this section, the Court or a justice may, on application ex parte by the inspector, and on receiving evidence that the use of any such part of the ways, works, machinery, or plant, involves imminent danger to life, make an interim order prohibiting, either absolutely or subject to conditions, the use thereof until the earliest opportimity for hearing and determining the complaint. (3) If there is any contravention of an order under this section, the person entitled to control the use of the part of the ways, works, machinery, or plant, shall be liable to a fine not exceeding forty shillings a day during the contravention. The addition of "'ways," " works," and " plant " is new ; as is the inclusion of a "steam boiler." For the raeauing of the three foriuer terms, see the notes on sect. 1, sub-sect. (1) of the Employers Liability Act, 18S0, ii/J'nt. The application of this section is extended by sects. 104, lOa and lOG : Vide infra. Power to make order as to unhealthy or dangerous factory or workshop. 18. — (1) A court of summary jurisdiction may, on complaint by an inspector, and on being satisfi(Hl that any place used as a factory or workshop or as jjart of a factor}^ or workshop is in such a condition that any manu- facturing process or handicraft carried on therein cannot be so carried on without danger to health or to life or limb, by order, prohibit the use of that place for the purpose of that process or handicraft, until such works have been executed as arc in the opinion of the Court necessary to remove the danger. (2) Provided that proceedings shall not bo taken under this section in cases where proceedings might be taken by or at the instance of any district council under the provisions of the law relating to public health, unless the inspector is authorised to take proceedings under the foregoing provisions of this Act with respect to the enforcement of sanitary provisions in workshops, or with respect to matters punishable or remediable under the law relating to public health but not under this Act. (3) If there is any contravention of an order under this section, the occupier of the place shall bo liable to a fine not exceeding forty shillings a day during the contravention. Notice of accidents causing death or bodily iujury. (iii) Accidents. 19. Tills section is repealed and replaced by sect. 4 of the Notice of Accidents Act, 1906, which is printed at p. 859, infra. See also sect. 5 of that Act as to notice in factories of dangerous occurrences where no personal injury or dis- ablement is caused. As to what is an "accident," sec notes on "Defences to Claims" (d), under Workmen's Compensation Act, 1907, at p. 654, infra. The application of the substituted section of the Notice of Accidents Act, 1906, and sects. 20, 21 and 22 of this Act, is extended by sects. 104, 105 and 106, i//fr(i. These four sections al.so apply to lead, phosphorus, arsenical or mercurial poison- ing, or anthrax: Sect. 73 (3). FACTORY AND WORKSHOP ACT, 1901. 479 20. — (1) Where a certifying surgeon receives in pursuance of thia Act Investigation notice of an accident in a factory or workshop, he shall, with the least of and report possible delay, proceed to the factory or workshop, and make a full investi- ^ certifying gation as to the nature and cause of the death or injury caused by that surgeon, accident, and within the next twenty-four hours send to the inspector a rei)()rt thereof. (2) The certifying surgeon, for the purpose only of an investigation under this section, shall have the same powers as an inspector, and shall also have power to enter any room in a building to which the person killed or injured has been removed. 21. — (1) Where a death has occui-red by accident in a factory or work- Inquest in shop, the coroner shall forthwith advise the district inspector of the time and ^^^^ of death place of holding the impest, and, unless an inspector or some person on Jq factory or behalf of the Secretary of State is present to watch the proceedings, the workshop, coroner shall adjourn the inquest, and shall, at least four days before holding the adjourned inquest, send to the inspector notice in writing of the time and place of holding the adjourned inquest. Provided that, if the accident has not occasioned the death of more than one person, and the coroner has sent to the inspector notice of the time and place of holding the inquest at such time as to reach the inspector not less than twenty-four hoiu's before the time of holding the inquest, it shall not be imperative on him to adjourn the inquest in pursuance of this section, if the majority of the jury think it unnecessary so to adjourn. (2) Any relative of any person whose death may have been caused by the accident with respect to which the inquest is bciing hold, and anj' inspector, and the occupier of the factory or workshop in which the accident occurred, and any person appointed by the order in writing of the majority of the workpeople employed in the factory or workshop, shall be at liberty to attend at the inquest, and, either in person or by his counsel, solicitor, or agent, to examine any witness, subject nevertheless to the order of the coroner. 22. Where it appears to the Secretary of State that a formal investigation Power to of any accident occurring in a factory or workshop and its causes and cir- direct formal cumstances is expedient, the Secretary of State may direct that such an ^j accidents, investigation be held, and with respect to any such investigation the following pi'o-visions shall have effect : (1) The Secretary of State may appoint a competent person to hold the investigation, and may appoint any person or persons possessing legal or special knowledge to act as assessor or assessors in holding the investigation ; (2) The person or persons so appointed (herein-after called " the Court") shall hold the investigation in open court in such manner and luider such conditions as the Court may think most effectual for ascertaining the causes and circumstances of the accident, and enabling the Coui't to make the report in this section mentioned ; (3) The Court shall have for the purpose of the investigation all the powers of a court of summary jurisdiction when acting as a court in hearing informations for offences against this Act, and uU the powers of an 480 FACTORY AND WORKSHOP ACT, 1901. inspector under this Act, and in addition the following powers, namely : — (a) Power to enter and inspect any place or building the entry or inspection whereof appears to the Court requisite for the said purpose ; (b) Power, by summons signed by the Court, to require the attend- ance of all such persons as it thinks fit to call before it and examine for the said purpose, and for that purpose to require answers or returns to such inquiries as it thinks fit to make ; (c) Power to require the production of all books, jjajjcrs, and docu- ments which it considers important for the said purj^ose ; (d) Power to administer an oath and re(iuire any person examined to make and sign a declaration of the truth of the statements made by him in his examination : (4) Persons attending as witnesses before the Coiu't shall be allowed such expenses as would be allowed to witnesses attending before a court of record ; and in case of dispute as to the amount to be allowed, the same shall be referred by the Court to a master of one of His Majesty's superior courts, who on request, signed by the Court, shall ascertain and certify the proper amount of the expenses : (5) The Court holding an investigation under this section shall make a report to the Secretary of State, stating the causes of the accident and its circumstances, and adding any observations which the Court thinks right to make : (G) All expenses incurred in and about an investigation under this section (including the remuneration of any person appointed to act as assessor) shall be deemed to be part of the expenses of the Secretary of State in the execution of this Act : (7) Any person who without reasonable excuse (proof whereof shall lie on him) either fails, after having had the expenses (if any) to which he is entitled tendered to him, to comply with any summons or requisition of a C(jurt holding an investigation under this section, or jDrevents or impedes the Court in the execution of its duty, shall for every such offence be liable to a fine not exceeding ten pounds, and in the case of a failure to comply with a requisition for making any return or pro- ducing any document shall be liable to a fine not exceeding ten pounds for every day that such failure continues. The Secretary of State may cause any special report of an inspector or anj" report of a court under this Part of this Act to be made public at such time and in such manner as he may think fit. iSub-sncts. (1) to (7) and the last paragrapli are new. They reproduce sects. 45 and 46 of the Coal Mines Regulation Act, 1887, which were incorporated by reference by sect. 21 (1) of the Factory Act, 1895. FACTORY AND WORKSHOP ACT, 1901. 481 PAILT 11. Employment. (i) Hours (t)id Holidays (oo). 23. A womau(/>), yoiuif? person (/)), or child (//) shuU not be employed in RestrictioD.s a factory or workshop excei)t during the period of employment herein-after on period of ,• ' 1 employmeut mentioned. c ^ •' 01 women, For penalties see sect. 137. yoanjj Employment is to be deemed continuou.s uuless interrupted by an interval of at persons, and least half an hour : Sect. 156 (2). chddren. 24. With respect to the employment of women and young persons in a Hours of textile factory (7), the following regulations shall be obseiwed : employment '_ '^ f^ » ^ jjj textde (1) The jteriod of employment, except on Saturday, shall either begin at factories — six o'clock in the morning and end at six o'clock in the evening, or y°"^o begin at seven o'clock in the morning and end at seven o'clock in the women evening ; (2) The period of employment on Saturday shall begin either at six o'clock or at seven o'clock in the morning ; (3) Where the period of employment on Saturday begins at six o'clock in the morning, that period — • (a) If not loss than one hour is allowed for meals, shall end at noon as regards employment in any manufacturing process, and at half-past twelve o'clock in the afternoon as regards employ- ment for any purpose whatever ; and (b) If less than one hour is allowed for meals, shall end at half-past eleven o'clock in the forenoon as regards employment in any manufacturing process, and at noon as regards employment for any purpose whatever ; (4) Where the period of employment on Saturday begins at seven o'clock in the morning, that period shall end at half-past twelve o'clock in the afternoon as regards any manufacturing process, and at one o'clock in the afternoon as regards employment for any purpose whatever ; (5) There shall be allowed for meals during the said period of employment in the factory — (a) on every day except Saturday not less than two hours, of which one hour at the least, either at the same time or at different tinaes, shall be before three o'clock in the afternoon ; (b) on Saturday not less than half an hour ; {00) As to hours, holidays, and meal at p. 863, infra). intervals in charitable and rcformatorv ; \ r> c ;i • * i -^ • i-^ ..■ 4- =, /.)\ I ,\ ( »i,\ {Pj Denned m sect. I06. mstitutioiis, see sect. (2) (a) or the ^'^' Factory and Workshop Act, I'JOT (printed (7) Detiued in sect. 149. M. I I 482 FACTORY AND WORKSHOP ACT, lOOl. Hours of einployineut in textile factories — childien. (6) A woman or young person shall not be employed continuously for more than four hours and a half, without an interval of at least half an hour for a meal. Ill sub-sects. (3) aud (4) the hours at whicli employment is to terminate are all fixed at one liour earlier tlian under Ihe Act of 1S7M. Sub-sect. (6). See sects. 28 and 3'J mlra as to employment for five hours con- tinuously without an interval for a meal in certain industries. 25. With respect to the employment of children (/*) in a textile factory (7), the following regulations shall be observed : — (1) Children .shall not be employed except on the system either of employ- ment in morning and afternoon sets, or of employment on alternate days only. (2) The period of emi^loyment for a child in a morning set .shall, except on Saturday, begin at the same hcnir as if the child were a young person, and end either — • (a) at one o'clock in the afternoon ; or (b) if the dinner time begins before one o'clock, at the beginning of dinner time ; or (c) if the diuTier time does not b(;gin bfifore two o'clock, at noon. (3) The period of employment for a cliild in an afternoon sot shall, except on Saturday, begin either — (a) at one o'clock in the afternoon ; or (b) at any later hour at whicli the dinner time terminates ; or (c) if the dinner hour does not begin before two o'clock, and the morning set ends at noon, at noon ; and .sliall end at the samc^ hour as if the child wen; a young pur.s()n. (4) The i^eriod of employment for any child on Saturday shall begin and end at the same hour as if the child were a young person. (t3) A child shall not bo employed in two successive periods of seven days in the morning set, nor in two successive periods of seven days in an afternoon set, and a child shall not be employed on two successive Saturdays, nor on Saturday in any week if on any other day in the same week his period of employment has exceeded five hours and a half. (6) When a child is employed on the alternate day sy.stem the period of employment for such child and the tinn; allowed for meals shall be the same a,s if the cliild were a young pers(m, but the child shall not be employed on two successive days, and shall not be employed on the same day of the week in two successive weeks. (7) A (;hild shall not on either system be employed continuously for more than four hours and a half without an interval of at least half an hour for a meal. See Employment of Children Act, 1903, s. 3, sub-s. (3). Sub-sect. (7). See se:t. 39, and la.st note on preceding- section. See sect. 32 as to affixing notices of the .system of the employment of children ; and sect. 87 (1) (iii) and the proviso thereto as to the liability of "owners" in " tenement factories." (jo) Defined in sect. 156. (y) Defined in sect. 149, FACTORY AND WORKSHOP ACT, IDOl. 483 26. With respect to the employment of women and young persons in a Houra of non-toxtilo factory, and a workshop, tlio following rogulations shall bo ornploymont observed :— 1" non-textile lactones and (1) The period of oTnjiloynn'nt, excopt on Saturday, shall (save as is in this work»hop.s — Act specially excepted) either begin at six o'clock in the morning and 5'°"'^" P^'"" ,,.,,,., . , . " sons and end at six o clock m the evening, or begin at seven o'clock in the women. morning and end at seven o'clock in the evening, or begin at eight o'clock in the morning and end at eight o'clock in the evening. (2) The period of ornploymont on Saturday shall (save as is in this Act specially excepted) begin at six o'clock in the morning and end at two o'clock in the afternoon, or begin at seven o'clock in the morning and end at three o'clock in the afternoon, or begin at eight o'clock in the morning and end at four o'clock in the afternoon. (3) There shall be allowed for meals during the said period of employment in the factory or workshop — (a) on every day except Saturday not less than one hour and a half, of which one hour at the least, either at the same time or at different times, shall be before three o'clock in the afternoon ; and (b) on Saturday not less than half an hour. (4) A woman or a young ])erson in a non-textile factory and a young person in a workshop shall not be employed continuously for more than five hours without an interval of at least half an hour for a meal. See sects. 39, 42, 30, 37. As to " laumlries," see Factory and Wcirksliop Act, 1907, s. 2, printed at p. 863, infra. 27. With respect to the employment of children (r) in a non-toxtilo Hours of factory and a workshop, the following regulations shall be observed : — ■ employment (1) Children shall not bo employed except either on the system of employ- fxetori'*^-^*d ment in morning and afternoon sets, or (in a factory or workshop in workshops — which not less than two hours are allowed for meals on every daj- children, except Saturday) on the system of employment on alternate days only. (2) The period of employment for a child in the morning set on every day, including Saturday, shall begin at six or seven or eight o'clock in the morning and end either — (a) at one o'clock in the afternoon ; or (b) if the dinner time begins before one o'clock at the beginning of dinner time ; or (c) if the dinner time does not begin before two o'clock, at noon. (3) The period of employment for a child in an afternoon set on every day, including Saturday, shall begin either — (a) at one o'clock in the afternoon ; or (b) at any hour later than half-past twelve at which the dinner time terminates ; or (c) if the dinner time does not begin before two o'clock and the morning set ends at noon, at noon ; and shall end on Saturday at two o'clock in the afternoon, and on any (r) Defined in sect. 166 (1). 11^ 484 FACTORY ANl) WOKKSHOP ACT, 1901. Hours of employment in print works and bleaching' and dyeing works. Special pro- viwons as to employment in women's workshops. other day at six or seven or eight o'clock in the evening, according as the period of emploj^mont for cliildT-en in the morning set begun at six or seven or eight o'clock in the morning. (4) A child shall not be employed in two successive periods of seven days in a morning set, nor in two successive periods of seven days in an afternoon set, and a child shall not be employed on Saturday in any week in the same set in which he has been employed on any other day of the same week. (5) When a child is employed on the alternate day system — (a) The period of employment for such a child shall, except on Saturday, either begin at six o'clock in the morning and end at six o'clock in the evening, or begin at seven o'clock in the morning and end at seven o'clock in the evening, or begin at eight o'clock in the morning and end at eight o'clock in the evening ; (b) The period of employment for such child shall on Saturday begin at six or seven o'clock in the morning, and end at two o'clock in the afternoon, or begin at eight o'clock in the morning, and end at four o'clock in the afternoon ; (c) There shall be allowed to such child for meals during the said period of employment not less, on any day except Saturday, than two hours, and on Saturday than half an hour ; but (d) The child shall not bo employed in any manner on two successive days, and shall not be employed on the same day of the week in two successive weeks. (6) A child shall not on either system be employed continuously for more than five hours without an interval of at least half an hour for a meal. See sect. 36. 28. In print works and bleaching and dyeing works the period of employ- ment for a woman, young person, and child, and the times allowed for meals shall be the same as if the works were a textile factory, and the regulations of this Act with respect to the omi^loj-ment of women, young persons, and children in a textile factor}' shall apply accordingly, as if print works and bleaching and dyeing works were textile factories ; save that nothing in this section shall prevent the continuous employment of a woman, young person, or child in the works for five hours without an interval of half an hour for a meal. 29. — (1) In a workshoj) which is conducted on the system of not employing therein either children or j^oung persons, and the occupier of which has sei'ved on an inspector notice of his intention to conduct his workshop on that system — (a) The period of employment for a woman (s) shall, except on Saturday, be a specified period of twelve hours taken between six o'clock in the morning and ten o'clock in the evening, and shall on Saturday be a specified period of eight hours, taken between six o'clock in the morning and four o'clock in the afternoon ; and (•s) Defined in sect. 150 (1). FACTORY AND WORKSHOP ACT, 1901. 485 (b) There shall be allowed to a -woman for meals and absence from work during the period of employment, a specified period not less, except on Saturday, than one hour and a half, and on Saturday than half an hour. (2) Where the occupier of a workshop has served on an inspector notice of his intention to conduct that workshop on the system of not employing children or young persons therein, the workshop shall be deemed to be con- ducted on that system untU the occupier changes it, and no change shall be made until the occupier has served on the inspector notice of his intention to change the system, and until the change a child or young person employed in the workshop shall be deemed to be employ^ed contrary to the provisions of this Act. A change in the system shall not be made oftener than once a quai'ter, unless for special cause allowed in writing by an inspector. 30. In a non-textile factory or workshop where a woman or young person Special pro has not been actually employed for more than eight hours on any day in a vision as to week, and notice of such non-emi)lovment has been affixed in the factory or ^'^ , outs ' . . c. 1 emplovmcnt workshop and served on the inspector, the period of employment on Saturday of women in that week for that woman or young person may be from six o'clock in the and young morning to four o'clock in the afternoon, with an interval of not less than '^^ ^ two hours for meals. 31. — (1) A child must not, except during the period of employment, be Restriction on employed in the business of a factory or workshop outside the factory or employment workshop on any day dui-ing which the child is employed in the factory or 0^*.^: jg workshop. factory or (2) A woman or young person must not, except during the period of workshop on employment, be employed in the business of a factory or workshop outside ^' the factory or workshop on any day during which the woman or young person is employed in the factory or workshop both before and after the dinner hour. (3) For the purposes of this section a woman, young person, or child to or for whom any work is given out, or who is allowed to take out any work to be done by him or her outside a factory or workshop, shall be deemed to be employed outside the factory or workshop on the day on which the work is so given or taken out. (4) If a woman or young person is employed by the occupier of a factory or workshop on the same day, both in the factory or workshop, and in a shop, then — (a) the whole time during which that woman or young person is employed shall not exceed the number of hours permitted by this Act for her or his employment in the factory or workshop on that day ; and (b) if the woman or young person is employed in the shop, except dui'ing the period of emiDloyment fixed by the occupier, and specified in a notice affixed in the factory or workshop in pui'suance of this Act, the occupier shall make the prescribed entry in the general register with regard to her or his employment. (5) This Act shall apply as if any woman, j'oung pei'son, or child em- ployed in contravention of this section were employed in a factory or work- shop contrary to the provisions of this Act. Sub-sect. (4) is new. See Shop Hours Act, 1S92, s. 3, printed infra. 486 FACTORY AND WORKSHOP ACT, 1901. Notice fixing hours of employineut, &c. 32. — (1) Tho occupier of every factory aud workshoj) may fix within the limits allowed by this Act, and shall, subject to any special exceptions made by or in pursuance of this Act, specify in a notice which must bo affixed in tho factory or workshop — (a) tho period of employment ; (b) the times allowed for meals ; and (c) whether the children are employed on the system of morninjr and after- noon sets or of alternate days. (2) In a factory or workshop where such a notice is required to be affixed, the period of employment, the times allowed for meals, and the system of employment for all the children in the factory or workshop, shall bo those for the time being specified in tho notice. (3) A change in the said pei'iod or times or sj^stcm shall not be made until the occupier has served on an inspector, and affixed in the factory or work- shop, notice of his intention to make the change, and shall not be made oftoner than once a quarter, unless for special cause allowed in waiting by an inspector. (4) Where an inspector, by notice in writing, names a public clock, or some other clock open to public vi(!W, for the purpose of regulating the period of employment in a factory or workshop, the period of employment and the times allowed for meals in that factory or workshop shall be regu- lated by that clock. 33. "With respect to meals tho following regulations shall (save as is in this Act specially excepted) be observed in a factory and workshop : — (1) All women, young persons, and children employed therein shall have the times allowed for meals at the same hour of the day ; and (2) A woman, young person, or child shall not during any i)art of the times allowed for meals in the factory or workshop, be employed in the factorj' or the workshop, or be allowed to remain in a room in which a manufacturing process or handicraft is then being carried on. See sect. 40. Sub-soot. f'l). A yoinig person, contrary to orders and for his own ainusoment, oiled uiachiucry during the meal hour : Held, that the " occupiers " should he con- victed under this section : iVio?- v. Slaithwaitc, ifc, [1898] 1 Q. B 881. Prohibition 34. A Avoman, young person, or child shall not (save as is in this Act of Sunday specially excepted) be employed on Sunday in a factory or workshop, employment. See sects. 42, 47, 48, 5i (1) (d). Meal times to be simul- tann)us, aud employment during meal timi's for- hidden. Annual holidays and half holidays. 35. — (1) Subject to any special exceptions made by or in pursuance of this Act, the occupier of a factory or workshop shall allow in each year to every woman, young person, and child cmj^loyed in the factory or workshop the following holidays : — In England there shall be allowed as whole holidays— Christmas Day, Good Friday, and every Bank holiday, unless, in lieu of any of those daj's, another whole holiday or two half holidays, fixed by the occupier, be allowed. FACTORY AND WORKSHOP ACT, 190 1. 487 In Scotland there shall be allowed — (a) In burghs or police burghs, as whole holidays, the two days set apart by the Church of Scotland for the observance of the Sacra- mental Fast in the parish, or, if those fast days have been abolished or discontinued, two days, not less than three mouths apart, to be fixed by the town council ; elsewhere, two whole holidays, not less than three months apart, fixed by the occupier ; (b) Eight half holidays fixed by the occupier, but a whole holiday, fixed by the occupier, may bo allowed in lieu of any two half holidays. In Ireland there shall be allowed — (a) Christmas Day ; (b) Any two of the following days, fixed by the occupier, namely, the seventeenth of March (when it does not fall on a Sunday), Good Friday, Easter Monday, and Easter Tuesday; (c) Six half holidays, fixed by the occupier, but a whole holiday, fixed by the occupier, may be allowed in lieu of any two half holidays. (2) At least half of the said whole holidays or half holidays shall be allowed between the fifteenth day of March and the first day of October in every year. (3) A notice of every whole holiday or half holiday must be affixed in the factory or workshop during the first week in January, and a copy thereof must on the same day be forwarded to the inspector for the district, and unless the notice has been so affixed and sent cessation from work shall not be deemed to be a whole holiday or a half holiday : Provided that — (a) this sub-section does not apply in the case of a whole holiday in a factory or workshop in England or Wales if the whole holiday is Christmas Day or Good Friday or a Bank holiday ; ''b) any such notice may be changed by a subsequent notice affixed and sent in like manner not less than fourteen days before the holiday or half holiday to which it applies. (4) A half holiday shall comprise at least one half of the period of employ- ment for women and young persons on some day other than Saturday, or a day substituted for Satui'day. (5) A woman, young person, or child who— (a) on a whole holiday fixed by or in pursuance of this section for a factory or workshop is employed in the factory or workshop ; or (b) on a half holiday fixed in pursuance of this section for a factory or workshop is employed in the factory or workshop during the portion of the period of employment assigned for that half hohday ; shall be deemed to be employed contrary to the provisions of this Act. (6) If in a factory or workshop such whole holidays or half holidays as are required by this section are not fixed in conformity therewith, the occupier of the factory or workshop shall be liable to a fine not exceeding five pounds. 488 FACTORY AND WORKSHOP ACT, 1901. Employmeut between 9 a.m. and 9 p.m. in certain cases. (ii) Sprrial Exceptions as to Hours roid HoJidcnjs. 36. ^\'hel■e it is proved to the satisfaction of a Secretary of State that the customs or exigencies of the trade carried on in any class of non-textile factorie.^ or workshops, or parts thereof, either generally or when situate in any particular locality, require that the special exception hereafter in this section mentioned should be granted, and that the grant can bo made without injury to the health of the women, young persons, and children, affected thereby, he may, by Special Order, grant to that class of factories or workshops or parts thereof, a special exception that the period of employ- ment for women and young persons therein, if so fixed by the occupier and .'specified in the notice, may on any day except SatTu-day begin at nine o'clock in the morning and end at nine o'clock in the evening, and in that case the period of employment for a child in a morning set shall begin at nine o'clock in the morning, and the period of employment for a child in an afternoon set shall end at eight o'clock in the evening. See the Special Order dated Dec. '20, 1907 (St. R. & O. 1907, Factory and Work- shop, p. 134) : see sect. 126, infra. Employment of male young per- sons above 16 in lace factories. 37. — (1) In the part of a textile factory in which a machine for the manufacturer of lace is moved by steam, water, or other mcchunical power, the i)eriod of employment for any male young person above the age of sixteen years may be between four o'clock in the morning and ten o'clock in the evening, if he is employed in accordance with the following conditions ; namely : — (a) "V\Tiere he is employed on any day before the beginning or after the end of the ordinary period of employment, there must be allowed him for meals and absence from work between the above-mentionenl hours of four in the morning and ten in the evening not less than nine hours ; and (b) Where he is employed on any day before the beginning of the ordinary period of employment, he must not be employed on the same day after the end of that period ; and (c) Where he is employed on any day after the end of the; ordinary period of employment, he must not be employed next morning before the beginning of the ordinary period of employment. (2) For the purpose of this exception the ordinary period of emjjloymeut means the period of employment for women or young persons under the age of sixteen years in the factory, or, if none are employed, means such pei-iod as can \inder this Act be fixed for the employment of women and young persons ;inder the ago of sixteen years in the factory, and notici' of .such period shall bo affixed in the factory. Employment 38. — (1) In the part of a bakehouse in wliich tlie process of baking bread of "^^'1'' is carried on, the period of employment for any male young person above Hons'above" 16 ^^^ '^S*^ o^ sixteen years may be between five o'clock in the morning and nine in bakehouses. FACTORY AND WORKSHOP ACT, 1901. 489 o'clock in tho evening, if ho is employed in accordance with the following conditions ; namely : — (a) Where he is employed on any day before the beginning or after the end of the ordinary period of employment, there must be allowed him for meals and absence from work between the above-mentioned hours of five in the morning and nine in the evening not less than seven hours ; and (b) Where he is employed on any day befoi'e the beginning of the ordinary I)eriod of employment, he must not be employed on the same day after the end of that period ; and (c) Where he is employed on any day after the end of the ordinary period of employment, he must not be emploj^ed next morning before the beginning of the ordinary period of employment. (2) For the purposes of this exception the ordinary period of employment means the period of employment for women or young persons under the age of sixteen years in the bakehouse, or, if none are employed, means such period as can under this Act be fixed for the employment of women and young persons under the age of sixteen years in the bakehouse, and notice of that period shall be affixed in the bakehouse. See sects. 97 — 102 as to " bakehouses " generally. 39. — (I) In any of the textile factories to which this exception applies, a Five hours' woman, young person, or child may, between the first day of November and ^P. ™ 'l^^' the last day of March next following, be employed continuously for five factories, hours without an interval for a meal ; provided that — (a) The period of employment fixed by the occupier and specified in the notice begins at seven o'clock in the morning ; and (b) The whole time between that hour and eight o'clock is allowed for meals. (2) This exception applies to textile factories solely used for — (a) The making of elastic web ; or (b) The making of ribbon ; or (c) The making of trimming. (3) Where it is proved to the satisfaction of the Secretary of State that in any class of textile factories, either generally or when situate in any parti- cular locality, the customary habits of the persons employed therein require the extension thereto of this exception, and that the manufacturing process carried on therein is of a healthy character, and the extension can be made without injury to the health of the women, young persons, and children, affected thereby, he may, by Special Order, extend this exception accor- dingly. The limitation of this exception to the period between the first day of November and the following last day of March shall not, if the Secretary of State by Special Order so directs, apply to hosiery factories. Sec Special Orders of Dec. 20, 1882 (St. R. & 0. Rev. 1904, Vol. IV., Factory and Workshop, p. 10 ; L. G., Dec. 22, 1882), and of May 12, 1902 {ibid. p. 11 ; L. O., May 13, 1902). Sub-sect. (3). The last three lines are new. 490 FACTORY AND WORKSHOP ACT, 1901. Different meal times for different sets, and employment during meal times. 40.— (1) The provis;ions of this Act, which require tliat all the women, young persons, and children employed in a factory or workshop must have the times allowed for meals at the same hour of the day shall not apply to the following factories, namely : — (i) Blast furnaces (i), or (ii) Iron mills (<), or (iii) Paper mills (#), or (iv) Glass works {t), or (v) Letter-press printing works {t). (2) The provisions of this Act which require that a woman, young person, or child shall not during the times allowed for meals be employed or ha allowed to remain in a room in which a manufacturing process or handicraft is being carried on shall not apply to the following factories, namely — (i) Iron mills, or (ii) Paper mills, or (iii) Glass works (except any part in which the materials are mixed, and, in the case of glass works where flint glass is made, any part in which the work of grinding, cutting, or polishing is carried on), or (iv) Letter-press printing works. (3) In that part of any print works (<) or bleaching and dyeing works (<) in which the process of dyeing or open-air bhjaching is carried on — (i) A male young person may have the times allowed him for meals at different hours of the day from other young persons and women and children employed in the factory ; (ii) A male j'oung person may during the times allowed for meals to any other young person or to any woman or child be employed or be allowed to remain in a room in which a manufacturing process is carried on ; and (iii) During the times allowed for meals to a male young person anj'^ other young pei'son or any woman or child may be employed in the factorj' or be allowed to remain in a room in which a maiuifacturing process is carried on. (4) Where it is proved to the satisfaction of the Secretary of State that in any class of factories or workshops or parts thereof it is necessary, by reason of the continuous nature of the process or of special circumstances affecting that class, to extend thereto both or either of the following exceptions, namely — (a) an exception pennitting the women, young persons, and children employed in the factory or workshop to have the times allowed for meals at different hours of the day ; or (b) an exception permitting women, young persons, and children, during the times allowed for meals in the factory or workshop, to be employed in the factory or workshop or to be allowed to remain in a room in which a manufacturing process or handicraft is being carried on, and that the extension can be made without injury to the health of the women, young persons, and children, affected thereby, he may, by Special Order, extend both or either of those exceptions accordingly. {I'j Defined iu Sched. VI., Pt. 1. FACTORY AND WORKSHOP ACT, 1901. 491 Sub-sect. (4). Both these exceptions have been extended by the following orders:— Two of Dec. 20, 1882 (St. R. & O. Rev. 1904, Vol. IV.. Factory and Workshop, i)p. 12. 13 ; L. G., Dec. 22, 1882) ; two of Feb. 24, 1887 [Ihld. p. 14 ; L. G., Mardi 1, 18^7) ; of May 1, i.s'JG {ibid. p. 15; L. G., May 8, 1896) ; of July 20, 1899 {ibid. p. 16; L. G., July -In, 1899) ; of Sept. 6, 1899 [ibid. p. 17 ; L. G., Sept. 12, 1899) ; of March 11, 1903 [ibid. p. 19 ; L. G., March 13, 1903) ; of June 23, 1904 (St. R. & O. 1904, p. 143 ; L. G.. June 28, 1904). 41.— (1) The provisions of this Act as to period of employment, times for Special meals, and holidays, shall not apply to young por.>^ons and women engaged— ^jg^^^^^^^^"'' (a) in i)roco.>^scs in the preserving and curing of fish which must be carried mid fi-uit out immediately on the arrival of the fishing boats in order to prevent preserving, the fish from being destroyed or .spoiled ; or (b) in the process of cleaning and preparing fruit so far as is necessary to prevent the spoiling of the fruit immediately on its arrival at a factory or workshop during the months of June, July, August, and September, but this exception shall be subject to such conditions as the Secretary of State may by Special Order prescribe. (2) Where an occupier avails himself of this exception, the notice required to be served and affixed by an occupier of a factory or workshop availing himself of any special exception, need not specify the hours for the beginning and end of the period of employment, or the times to be allowed for meals. This is new. Sub-.sect. (1) (b). See order of Sept. 11, 1907 (St. R. & O. 1907, Factory and Workshop, p. 135). 42, In the case of creameries in which women and young persons are Special employed, the Secretary of State may, bv Special Order, vary the beginning exceptions , .,.,,.■ 1 " . ,. ii T as to cream- and end of the daily period of employment ot those women anrl young ^j.-^^^ persons, and the times allowed for their meals, and allow their emplojonent for not more than three hours on Sundays and holidays : Provided that the order shall not permit any excess over either the daily or the weekly maximum number of hours of employment allowed by this Act. This is new. See order of Oct. 23, 1903 (St. R. & O. Rev. 1904, Vol. IV., Factory and Work- shop, p. 21 ; L. G. Oct. 27, 1903), repealing the order of June 9, 1902. 43. AVhere it is proved to the satisfaction o^' the Secretary of State that Substitution the customs or exigencies of the trade carried on in any class of non-textile "^ another factories or workshops, either generally or when situate in any particular Saturday, locality, require some other day in the week to be substituted for Saturday as regards the ho;ir at which the period of employment for women, young persons and children is required by this Act to end on Saturday, he may, by Special Order, grant to that class of factories or workshops a special exception, authorising the occupier of every such factory and workshop to substitute by a notice affixed in his factory or workshop some other day for Saturday, and in that case this Act shall apply in the factory or workshop in like manner as if the substituted day were Saturday, and Satui'day were an ordinary work day. In the case of newspaper pi-inting offices, he may by such order authorise the substitution of some other day for Saturday in respect of some of the young persons therein employed. See orders of Feb. 3, 19 i2 (St R. k 0. R.v. 1904, Vol. IV., Factory and Workshop, p. 24) ; of Dec. 26, 1907 (St. R. & O. 1907, p. 137). 492 FACTORY AND WORKSHOP ACT, 1901. Saturday employment in Turkey red dyeing. 44. Ill the process of Turkey red dyeing the period of employment for women and young persons on Saturday may extend until half-past four o'clock in the afternoon, but the additional number of hours so worked shall be computed as part of the week's limit of work, which must in no case be exceeded. Sec .sect. 53. Holidays on different days for different sets. Employment inside and outside on the .same day. Hours and holidays in factory or workshop of Ji'wi.-^h occupier. Sunday employment of Jews in factory or workshop of Jewish occupier. 45. Where it is proved to the satisfaction of the Secretary of State that the customs or exigencies of the trade carried on in any class of non-textile factories or workshops, either generally or when situate in any particular locality, require that the special exception hereafter in this section men- tioned should be granted, he may, by Special Order, grant to that class of factories or workshops a special exception authorising the occupier of any such factory or workshop to allow all or any of the annual whole holidays or half holidays on different days to any of the women, young persons, and children emjiloyed in his factory or workshop, or to any sets of those women, young persons, and children, and not on the same days. See order of Dec. 20, 1882 (St. R. & O. Rev. 1904, Vol. IV., Factorv and Workshop, p. 24 ; L. G., Dec. 22, 1882). 46. Where it is proved to the satisfaction of the Secretary of State that the customs or exigencies of th(> trade carried on in any class of factories or workshojjs, or parts thereof, either generally or when situate in any particular locality, require that the trade should be excepted from the operation of the provisions of this Act relating to employment inside and outside a factory or workshop on the same day, he may, by Special Order, grant to that class of factories or workshops, or parts thereof, such special exception as may be necessary. 47. Where the occupier of a factor}- or workshop is a person of the Jewish religion— (l)If he keeps his factory or workshop closed on Saturday until sunset, he may emploj' women and young persons on Saturday fnnn after sunset until nine o'clock in the evening ; or (2) If he keeps his factory or workshop closed on Saturday both before and after sunset, he may employ women and young persons one hour on every other day in the week (not being Sunday), in addition to the hours allowed by this Act, so that such hour be at the beginning or end of the period of employment, and be not before six o'clock in the morning ov after nine o'clock in the evening. 48. "WTiere the occupier of a factory or workshoj) is a person of the Jewish religion, a woman or young person of the Jewish religion may be employed on Sunday, subject to the following conditions : — (1) The factory or workshop must be closed on Saturday and must not be open for traffic on Sunday ; and (2) The occupier must not avail himself of the exception authorising the employment of women and young persons on Satiu-day evening, or for an additional hour during any other day in the week. Where the occupier avails himself of this exce])tion, this Act shall ajjply FACTORY AND WORKSHOP ACT, 1901. ^^^ to the factory or workshop in like manner as if in the provisions thereof respcctinj? Sunday the word Satxirday were substituted for Sunday, and in the provisions thereof respecting Saturday the word Sunday, or, if the occupier so specify in the notice, the word Friday were substituted for Saturday. In Gohhti'in v. Vaiigha)), [189711 Q. B. o49, the Jewish occupier of a workshop employed labour on Sunday, and permitted his customers ou that day to send or fetch away garmeuts in pursuance of contracts previously made : Hi Id, that the workshop was not, on that account, " open for traffic ou Sunday." Overtime. 49._(1) In the non-textile factories and workshops or parts thereof and Overtime warehouses to which this exception applies, the period of employment for ''^^^l^^^^'^ women on any day except Saturday, or any day substituted for Saturday, f^^ pj-gyg of may be between six o'clock in the morning and eight o'clock in the evening, work, or between seven o'clock in the morning and nine o'clock in the evening, or between eight o'clock in the morning and ten o'clock in the evening, if they are employed in accordance with the following conditions, namely: — (a) There must be allowed to every woman for meals during the period of employment not less than two hours, of which half an hour must be after five o'clock in the evening ; and (b) A woman must not be so employed in the whole for more than three days in any one week ; and (c) Overtime employment under this section must not take place in a factory or workshop on more than thirty days in the whole in any twelve months, and in reckoning that period of thirty days, every day on which any woman has been employed overtime is to be taken into account. (2) This exception applies to the non-textile factories and workshops and parts thereof and warehouses specified in the Second Schedule to this Act, except that it does not apply to a workshop or part thereof which is conducted on the system of not employing any young person or child therein. (3) "Where it is i)roved to the satisfaction of the Secretary of State that in any class of non-textile factories or workshops or parts thereof it is necessary, by reason of the material which is the subject of the manufacturing process or handicraft therein being liable to be spoiled by the weather, or by reason of press of work arising at certain recurring seasons of the yeai-, or by reason of the liability of the business to a sudden press of orders arising from unforeseen events, to employ women in manner authorised by this exception, and that such employment will not injure the health of the women affected thereby, he may, by Special Order, extend this exception to those factories or workshops or parts thereof. See sect. 60, infra. Sub-sect. ^3). See the following orders: Of Dec. 29, 1903 (St. R. & 0. Rev. 1904 Vol. IV., Factory ami Workshop, p. 2.5 ; L. G., Jan. 1, 1904), which revokes all previous orders; aud of Nov. 15, 1904 (St. R. & 0. 1904, p. 144; L. G., Nov. 18, 1901). 494 FACTORY AND WORKSHOP ACT, 1901. Overtime employment of women on peri.vluible articles. 50. --(1) In tho factories and workshops and parts thoreof to wliicli this exception applies, the period of employment for a woman may on any day except Saturday, or any day substituted for Saturday, be between six o'clock in the morning and eight o'clock in the evening, or between seven o'clock in the morning and nine o'clock in the evening, if she is employed in accordance with the following conditions, namely : — - (a) There must be allowed her for meals not less than two hours, of which half an hour must bo after five o'clock in the evening ; and (b) She must not be so employed in the whole for more than three days in any one week ; and (c) Overtime employment under this section must not take place in a factory or workshop on more than fifty days in the whole in any twelve months ; and in reckoning that period of fifty days, every day on which any woman has been employed overtime is to be taken into account. (2) This exception applies to every fac'tory and worksliop or pai't thereof in which is carried on — (a) the process of making preserves from fruit ; or (b) the process of preserving or curing fish ; or (c) the process of making condensed milk. (3) Where it is proved to tho satisfaction of the Secretary of State that in any class of non-textile factories or workshops or parts theieof it is necessary, by reason of the perishable nature of the articles or materials which are the subject of the manufacturing process or handicraft, to emploj^ women in manner authorised by this exception, and that such emploj-ment will not injui'e the health of the women employed, he may, by Special Order, extend this exception to those factories or workshops or parts thereof. Sub-sect. (3). The order of Aw^. IS, 1893, is oveiTiddea by this section. See sect. 60, infra. Overtime employment on incom- plete process. 51.- -(1) If in any factory or workshop or part thereof to wliich this exception applies, the process in which a woman, young person, or child is emi)loyed, is in an incomplete state at the end of the period of employment of the woman, young person, or child, the woman, young person, or child, may on any day except Saturday, or any day substituted for Saturday, be employed for a further period not exceeding thirty minutes : Provided that those further periods, when added to tho total number of hours of the periods of employment of the woman, young person, or child in that week, do not raise the total above the number otherwise allowed under this Act. (2) This excejition applies to the factoines and workshops following, namely : — (a) Bleaching and dyeing works : (b) Print works ; (c) Iron mills in which male young persons are not employed during any part of the night ; (d) Foundries in which male young persons are not employed during any part of the night ; and FACTORY AND WORKSHOP ACT, 1901. 495 (e) Paper mills in which male young persons are not employed during any part of the night. (3) "Where it is proved to the satisfaction of the Secretary of State that in any class of non-textile factories or workshops or parts thereof the time for the completion of a process cannot by reason of the nature thereof be accurately fixed, and that the extension to that class of factories or work- shops or parts thereof of this exception can be made without injury to the health of the women, young persons, and children, affected thereby, he may by Special Order extend this exception accordingly. See order of Dcu. 20, 1882 (L. G., Dec. 22, 1882 ; St. R. & O. Rev. 1904, Vol. IV., Factory and Workshop, p. 27). See sect. 60, infra. 52. Where it appears to the Secretary of State that factories driven by Overtime water power are liable to be stopped by drought or flood, he may, by Special employment Order, grant to those factories a special exception permitting the employment Jj-j^.^q i^„ of women and young persons during a period of employment from six water, o'clock in the morning until seven o'clock in the evening, on such conditions as he thinks proper, but so as that no person shall be deprived of the meal hours by this Act provided, nor be so employed on Saturday, or any day substituted for Saturday, and that as regards factories liable to be stopped by drought, the special exception shall not extend to more than ninety-six days in any period of twelve months, and as regards factories liable to be stopped by floods, the special exception shall not extend to more than forty-eight days in any period of twelve months. This overtime shall not extend in any case beyond the time already lost during the previous twelve months. See order of Dec. 20, 1882 (L. G., Dec. 22, 1882; St. R. A: O. Rev. 1904, Vol. IV., Factory aud Workshop, p. 28). 53. A woman or young person may on any day except Satiu-day, or any Overtime day substituted for Saturday, be employed beyond the period of employment, employment so far as is necessary for the purpose only of preventing any damage which j.^^ dyeing may arise from spontaneous combustion in the j'rocess of Turkey red dyeing, and open-air or from any extraordinary atmospheric influence in the jirocess of open-air ^^'^ ^^°' bleaching. See sect. 44. Night Work. 54.— (1) In the factories and workshops to which this exccjition applies, a Ni«-lit em- male young person of fourteen years of age and upwards may be employed ployment of during the night (v), if he is employed in accordance with the following personrof f 4. conditions, namely — (a) The period of employment must not exceed twelve consecutive hours, and must begin and end at the hours specified in the notice in this Act mentioned ; and (b) The provisions of this Part of this Act with respect to the allowance of times for meals shall be observed with the necessary modifications as to the hour at which the meal times are fixed ; and {v) Defined sect, 156 (1). 496 FACTORY AND WORKSHOP ACT, 1901. (c) A young jjeryun emploj'od during any iiait of the night must not be employed during any part of the twelve hours preceding or succeeding the period of employment ; and (d) He must not be employed on more thiin six nights, or in the case of blast furiuices or paper mills seven nights, in any two weeks; provided that this condition shall not prevent the emi)l()ynienfc of male young persons in three shifts of not more than eight hours each, if there is an interval of two unemployed shifts between each two shifts of employment ; and (e) In the case of blast furnaces, iron mills, letter-press jjrinting works, or paper mills, he must not be employed duiing the night in any process other than a process incidental to the business of the factory as described in Part I. of the Sixth Schedule to this Act. (2) The provisions of this Act with respect to the period of employment on Saturday, and with respect to the allowance to young persons of whole or half holidays, shall not apply to a male young person employed in day and night turns in pursuance of this exception. (3) This exception applies to the following factories, namely : — (a) Blast furnaces, (b) Iron mills, (c) Letter-press printing works, and (d) Paper nriills. (4) Where it is proved to the satisfaction of the Secretary of State that in any class of non-textile factories or workshops, or i)arts thereof, it is necessary by reason of the nature of the business requiring the process to be carried on throughout the night to employ male young persons of sixte(>n years of age and upwards at night, and that such employment will not injure the health of the male young persons employed, he may, by Special Order, extend this exception to those factories or workshops or parts thereof so far as regards young persons of the age of sixteen years and upwards. Sub-Hcct. (4). See the following orders:— Oi March 11, 1903 (L. G., March 13, 1903 ; St. R. & 0. Rev. 1904, Vol. IV"., Factory and Worksliop, p. 29) ; of May 4, 1903 (L. G.. May 8, 1903 ; ihid., p 30). revoking the orders of Nov. 16, 189.), and Aug. 22, 1902; of Aug. 9, 1904 (St. R. & O. 1904, p. 145) ; of Feb. 18, 1905 (L. G., Feb. 21, 1905 ; St. R. & 0." 190.J, p. 88). Nifjht em- ployment of male young persrms of 14 in prliiss works. 55. In glassworks a male young person of fourteen years of age and upwards may work according to the acctistomed hours of the works, if he is employed in accordance with the following conditions, namely : — (a) The total number of hours of the periods of em])loyment must not exceed sixty in any one week ; and (b) The periods of employment must not exceed fourteen hoiu's in four separate turns per week, or twelve hoiu's in five separate turns per week, or ten hours in six separate tui-ns per week, or any less number of hours in the accustomed number of sejmrate turns per week, so that the number of turns do not exceed nine ; and (c) He must not work in any turn witliout an interval of time not less than one full turn ; and FACTORY AND WORKSHOP ACT, 1001. 497 (tl) Tie must not be employed continuously for more than five hours without an interval of at least half an hour for a moal ; and (e) lie must not be emploj^ed on Sunday. 56. In a factory or workshop in which the process of printing newspapers Night em- is canied on on not more than two nif^hts in the week, a male young person pl"y"ient of ,,, P-i 1 1-,,-1,-t- , irialo young' above the ago oi sixteen years may bo employed at night during not more persons of 16 than two nights in a week, as if he wore no longer a young person : in priuting Provided that he must not in pursuance of this exception bo employed "f^^^P^-P^'"?. more than twelve hours in any consecutive period of twenty-four hours. The last seven words are new. Intermittent Employment. 57. — (1) The regulations of this Act with respect to the period of employ- Exemption ment for women (.c) shall not apply to flax scutch mills (?/) which are con- fl^^xT^t"^ ducted on the system of not employing either young persons or children mills, therein, and which are worked intermittently, and for periods only which do not exceed in the whole six months in any year. (2) A flax scutch mill shall not be deemed to be conducted on the system of not employing either young persons or children therein, until the occupier has served on an inspector notice of his intention to conduct the mill on that system. This section is repealed by the Employment of Women Act, 1907 (7 Edw. 7, 0. 10). Supplemental. 58. — (1) AVhere it appears to the Secretary of State — Power to im- (a) That the adoption of any special means or provision for the cleanli- pose sanitary ness or ventilation of a factory or workshop is reciuired for the as'conditi^'^*^ protection of the health of women, young persons, or children, of special employed, in pursuance of an exception under this part of this Act, exceptions, either for a longer period than is otherwise allowed by this Act, or at night ; or (b) That the adoption of a special provision as to the total number of hours of employment in each wec^k, the periods of emi)loyment, and the intervals between such periods, is required for the protection of the health of any women or young persons employed in pursuance of such an exception at night, he may, by Special Order, direct that the adoption of the means or provision shall be a condition of such employment. (2) If it appears to the Secretary of State that the adoption of any such means or provision is no longer required, or is, having regard to aU the circumstances, inexpedient, he may, by Special Order, rescind the order directing the adoption without prejudice to the subsequent making of another order. See orders of Dec. 20. 1882 (St. R. & 0. Rev. 1904, Vol. IV.. Factory and Workshop, p. 31; L. G., Dec. 22, 1882); of Sept. 11, 1907, cited in note to sect. 41. (.r) See sect. 26. (y) See sect, 149, and Sched. VI., Pt. I. M, K K 498 FACTORY AND WORKSHOP ACT. 1901, Power to resciud ordiTs as to special exceptions. Notices, registers, &c. relatiug to special exceptions. 59. Where an exception has been granted or extended under this Act by an order of the Secretary of State, and it apj^ears to the Secretary of State that the exception is injurious to the health of the women, young persons, or children emploj'cd in, or is no longer necessary for the caiTving on of the business in, the class of factories or workshops or parts thereof to which the oxcejition was so granted or extended, he may, by Special Order, rescind the grant or extension, without pi-ejudice to the subsequent making of another order. 60. — (1) An occupier of a factory or workshoj), not less than seven days before ho avails himself of any special exception made by or in pursuance of this Act, shall servo on the inspector for the district, and affix in his factory or woikshop, notice of his intention so to avail himself, and whilst he avails himself of the exception shall keep the notice so affixed. (2) Before the service of the notice on the insj^ector the special exception shall not be deemed to apply to the factory or workshop, and after the service of the notice on the inspector it shall not be competent in any pro- ceeding under this Act for the occupier to prove that the exception does not apply to his factory or woi'kshop, unless he has previously served on the inspector for the district notice that he no longer intends to avail himself of the exception. (3) The notice so served and affixed must, except as otherwise provided by this Act, specify the hours for the beginning and end of the period of employ- ment, and the times to bo allowed for meals to every woman, young person, and child where they differ from the ordinary hours or times. (4) An occupier of a factory or workshop shall enter in the prescribed register and report to the inspector for the district the prescribed particulars respecting the employment of a woman, young person, or child in 2:)ursuance of a special exception ; and, in the case of employment overtime, he shall also cause a notice containing the prescribed i)articulars respecting the employ- ment to be kept affixed in the factory or workshop during the proscribed time, and he shall send the report required by this sub-section to the inspector not later than eight o'clock in the evening on which any woman, young person, or child is employed overtime in imrsuance of the exception. (o) Where the occupier of a factory or worksho}) avails himself of a S2)ecial exception made by or in pursuance of this Act, and a condition for availing himself of that exception (whether specified in this Act, or in an order of the Secretary of State made under this Act) is not observed in that factory or workshop, then (a) If the condition relates to the cleanliness, ventilation, or overcrowding of the factory or workshop, the factory or workshop shall be deemed not to be kept in conformity with this Act ; and (b) In any other case a woman, young person, or child, emjiloyed in the factory or workshop, in alleged pursuance of the exception, shall be deemed to be employed contrary to the provisions of this Act. (6) Where an occupier of a factory or workshop has served on an inspector a report in pursuance of this section of his intention to employ any persons ovortime by \irtuo of a special exception, the report shall, unless withdrawn, FACTORY AND WORKSHOP ACT, 1901. 499 be prima facie ovidcnco in any proceedings under this Act that the occupier has in fact employed persons overtime in accordance with the report. Sub-sect. (6) is new. Sub-sect. (4). As to " domestic " factories, see sect. Ill (2). As to notices and registers, see sects. 128 fl) (e), 129 (1) (d). As to " laundries," see Factory and Workshop Act, 1907, s. 2, printed mfra, at p. 863. (iii) Fitness for Employment. 61. An occupier of a factory or workshop shall not knowingly allow a Prohibition woman or girl to bo employed therein within four weeks after she has given cmp oy- birth to a child. women after The inclusion of "girls" is new. The similar provision as to "laundries" (sect. 103 (1) (f)) does not mention " girls." 62. A child Tinder the ago of twelve years must not be employed in a Prohibition factory or workshop unless lawfully so employed at the commencement of of employ- ,1 • . , ' ment of t^s ^«t- chUdren This is new. The former age limit was " eleven years." under IZ. See definition of " child" in sect. 156. 63. — (1) In a factory a young person under the age of sixteen years or a Certificates child must not be employed for more than seven, or if the certifying surgeon of fitness for for the district resides more than thi-ee miles from the factory thirteen, work of"yo°i^™*^'^ days, unless the occupier of the factory has obtained a certificate, in the persons prescribed form, of the fitness of the young person or child for employment under 16 and . ., . „ . children in m that factory. ^ factories. (2) When a child becomes a young person a fresh certificate of fitness must be obtained. (3) The occupier shall, when required, produce to an inspector at the factory in which a young person or child is onijjloyed the certificate of fitness of that young person or child for employment. As to certificates in "workshops," see sect. 66; and in "domestic" factories, see sect. Ill (3). 64. With respect to a certificate of fitness for employment for the Regulations purposes of this Act, the following provisions shall have effect : — ''** *o grant ^ ^ ^ ^ . of certificate (1) The certificate shall be granted by the certifying surgeon for the of fitness. district. (2) The certificate must not be granted except upon pex*sonal examination of the person named therein. (3) A certifpng surgeon shall not examine a young person or child for the purpose of the certificate or sign the certificate elsewhere than at the factory where the young person or child is or is about to be employed, unless the number of young persons and children employed in that factory is less than five, or unless for some special reason allowed in writing by an inspector. (4) The certificate must be to the effect that the certifying siu-geon is satisfied, by the production of a certificate of bii'th or other sufficient K K 2 500 FACTORY AND WORKSHOP ACT, 1001. 39 & 40 Vict, c. 79. Gvidonco, tliat the person named in the certificate is of the ago therein specified, and has been personally examined by him and is not in- capacitated by disease or bodily infirmity for working daily for the time allowed by law in the factory named in the cei'tificate. (5) The certificate may be qualified by conditions as to the work on which a child or young person is fit to bo employed, and if it is sf) (jualified the oecui)ier shall not employ the J'oung perscju or child otherwise than in accordance with the conditions. (6) A certifying surgeon shall have the same powers as an inspector for the purpose of examining any process in which a child or young person presented to him for the grant of a certificate is proposed to be employed. (7) All factories in the occupation of the same occupier and in the district of the same certifying surgeon, or any of them, may be named in the certificate, if the surgeon is of opinion that he can truly give the certificate for emploj^nent therein. (8) The certificate of birth (which may be produced to a certifying surgeon) shall either be a certified copy of the entry in the register of births, kept in pursuance of the Acts relating to the registration of births, of the birth of the young person or child (whether that copy is obtained in pursuance of the Elementary Education Act, 187(5, or otherwise), or be a certificate from a local authority within the meaning of the Elementary Education Act, 1870, to the effect that it appears from the returns transmitted to that authority in pursuance of the said Act by the registrar of births and deaths that the child was born at the date named in the certificate. (9) Where the certificate is to the effect that the certifying surgeon has been satisfied of the age of a young person or child by evidence other than the production of a certificate of bii-th, an inspector may, by notice in writing, annul the surgeon's certificate if he has reasonable cause to believe that the real age of the young person or child named in it is less than that mentioned in the certificate, and thereupon that certificate shall be of no avail for the purposes of this Act. (10) Where a certifying surgeon refuses to grant a certificate for any person examined by him, he shall when required give in writing and sign the reasons for his refusal. Sub-sects, (.i) and (6) arc new. Sub-sect (1). See sect. 123. As to " domestic " factories, see sect. 1 11 (8). As to proof of age, see sects. 134 and 147 (2). Power to 65' I^^ order to enable occupiers of workshops to better scnnire the obscr- obtain certi- vance of this Act, and prevent the emidoymeiit in their workshops of young ncates ot nersons under the age of sixteen years and children who are unfitted for that ntness tor ^ " . i . • -l- i j^t ■ i i>i i. employment employment, an occupier ot a workshoji may obtain, it he thinks nt, from in workshops, the certifying surgeon for the district, certificates of the fitness of young persons under the age of sixteen years and children for employment in his workshop, in like manner as if that workshop were a factory, and the certi- fj-ing surgeon shall examine the young persons and children, and grant certificates accordingly. FACTORY AND WOKIv.SlKJl' A(;r, liJOl. i>01 66. — (1) Where it ai)peai-8 to the Secretary of State that by reason of Tower bj .special circumstances affecting any class of workshops it is expedient for require certi- protecting the health of the young persons under the age of sixteen years, fit^egy for and of tlie children employed thert;in, to extend thereto the prohibition in employment this section mentioned, he may, by Special Order, extend to that class of "^ certam workshons workshops the prohibition in this Act of the emploj'ment of young persons under the age of sixteen years and children without a certificate of the fitness of the yoimg ijcrson or child for employment, and thereupon the provisions of this Act with respect to certificates of fitness for employment shall apply to the class of workshops named in the ordcn- in like manner as if they were factories. (2) If the prohibition is proved to the satisfaction of the Secretary of State to be no longer necessiiry for the protection of the health of the young persons under the age of sixteen years and the children employed in any class of workshops to which it has been extended under this section, he may, by Special Order, rescind the order of extension, without prejudice to the subsequent making of another order. See order of Aug. 31, 1906 (St. R. & O. 190G, p. 177). 67. Where an insjiector is of ()pini(in that a young person under the ago Power of of sixteen years or a child is by disease or bodily infirmity incajiacituted for inspector to working daily for the time allowed bj' law in the factory or workshop in tri^^i certi- which he is employed, he may serve written notice thereof on the occupier ficate of of the factory or workshop, requiring that the employment of that young capiicity for person or child be discontinued from the period named therein, not being less than one nor more than seven days after the service of the notice, and the occupier shall not continue after the period named in the notice to employ that young person or child (notwith.standing that a certificite of fitness has been previously obtained for the young person or child), unless the certifying surgeon for the district has, after the service of the notice, personally examined the young person or child, and has certified that the j'oung person or child is not so incapacitated as aforesaid. PART III. Education of Children. 68. — ( 1 ) The parent [z) of a child (z) emploj-ed in a factory or workshop shall Attendance cause that child to attend some recognised efficient school (a) (which school 'i* ;;*chool of , ^ children may be selected by the parent), as follows : — employed in (a) The child, when employed in a morning or afternoon set, niust in every factory or week, during any part of which he is so employed, be caused to attend '^^orkshop. on each work day for at least one attendance ; and (b) The child, when employed on the alternate day system, must on each work day preceding each day of employment bo caused to attend for at least two attendances ; (c) An attendance for the purposes of this section shall be an attendance as defined for the time being by the Secretary of State with the consent of the Board of Education, and be between the hours of eight in the morning and six in the evening : (;) Defined in sect. 156 (1). (a) Defined in sect. 72. 502 FACTORY AND WORKSHOP ACT, 1901. Obtaining of school attendance certificate by occupier. Provided as follows : — (i) A child shall not be required by this Act to attend school on Satur- day or on any holiday or half holiday allowed under this Act in the factory or workshop in which the child is emploj^ed : (ii) The non-attendance of a child shall be excused on eveiy day on which he is certified by the teacher of the school to have been pre- vented from attending by sickness or other unavoidable cause, and when the school is closed during the ordinary holidays or for any other temporary cause : (iii) Whore there is not within the distance of two miles, measured according to the nearest road, from the residence of the child, a recognised efficient school which the child can attend, attendance at a school tempoi'arily approved in writing by an inspector, although not a recognised eflicient school, shall for the purposes of this Act be deemed attendance at a recognised efficient school until such recognised efficient school as aforesaid is established, and with a view to such establishment the inspector shall immediately report to the Board of Education every case of the approval of a school by him under this section. (2) A child who has not in any week attended school for all the attend- ances required by this section must not be employed in the following week until he has attended school for the deficient number of attendances. (3) The Board of Education shall, by the piiblication of lists or of notices or otherwise as they think expedient, provide for giving to all persons interested information of the schools in each school district which are recognised efficient schools. Snb-sect. (1) (c). "Attendance" is constituted by secular instruction for two hours : see orders (two) of Dec. "24, 1878, for England and Wales (St. R. & O. Rev. 1904, Vol. IV., Factory and Workshop, p. 32) ; for Scotland {ihid. p. 35) ; and order of Feb. I'J, 1903 (ibid. p. 36), for Ireland. Employment of children under the age of twelve is prohibited by sect. 62 : vide mtpra. See sect. 4 of the Elementary Education Act, 1880, as to employment (if children ; also sects. 6 and 7 of the Elementary Education Act, 1900, under which sections the bye-laws, if any, as to the standard nrc Parliament. Breach of rey-ulations. (5) The fee to be paid to the persou hokling the iuqiiiry shall bo such as the Secretary of State may direct, and shall be deemed to be part of the expenses of the Secretary of State in the execution of this Act. Sub-sect. (4). See order of February o, 1903 (St. R. & O. Rev. 1904, Vol. IV., Factory and Workshop, p. 58). 82.- — (1) The regulations made under the foregoing provisions of this Act may apply to all the factories and workshops in which the manufacture, machinerj', plant, jn'occss, or description of manual labour, certified to be dangerous is used (whether existing at the time when the regulations are made or afterwards established) or to any specified class of such factories or workshops. They may provide for the exemption of any specified class of factories or workshops either absolutely or subject to conditions. (2) The regulations may applj' to tenement factories and tenement work- shops, and in such case may impose diities on occupiers who do not employ any person, and on owners. (3) No person shall be precluded by any agreement from doing, or bo liable under any agreement to any penalty or forfeiture for doing, such acts as may be necessary in order to comply with the provisions of any regula- tion made under this Act. 83. llegulations made under the foregoing provisions of this Act may, among other things, — ■ (a) prohibit the employment of, or modify or limit the period of employ- ment of, all persons or any class of persons in any manufacture, machinery, plant, process, or description of manual labour certified to be dangerous ; and (b) prohibit, limit, or control the use of any material or process ; and (c) modify or extend any special regulations for any class of factories or workshops contained in this Act. 84. Regulations made under the foregoing provisions of this Act shall be laid as soon as possible before both Houses of Parliament, and if either House within the next forty days after the regulations have been laid before that House, resolve that all or any of the regulations ought to be annulled, the regulations shall, after the date of the resolution, be of no effect, without prejudice to the validity of anything done in the meantime thereunder, or to the making of any new regulations. If one or more of a set of regulations are annulled, the Secretary of State may, if he thinks fit, withdraw the whole set. 85.— (1) If any occupicn-, owner, or manager, who is bound to observe any regulaticm under this Act, acts in contravention of or fails to comply with the regulation, he shall be liable for each offence to a fine not exceeding ten pounds, and, in the case of a continuing offence, to a fine not exceeding two pounds for every day during which the offence continues after conviction therefor. (2) If any person other than an occupier, owner, or manager, who is bound to observe any regulation under this Act, acts in contravention of, or fails to comply with, the regulation, he shall be liable for each offence to a fine not exceeding two pounds ; and the occupier of the factory or workshop shall also be liable to a fine not exceeding ten pounds, unless he proves that he has taken all reasonable means by publishing, and to the best of his FACTORY AND WOKKSHOP ACT, ]901. '^^9 powor enforcing, the rogulations to prevent the contravention or non- compliance. 86.— (1) Notice of any regulations having been made under the lorogoing Publication of provisions of this Act, and of the place where copies of them can be pur- regulation.s. chased, shall bo published in the Loudon, I'^dinburgh, and Dublin Gazettes. (2) Printed copies of all regulations for the time being in force under this Act in any factory or workshop shall be kept posted up in legi])le chara(;ters in conspicuous places in the factory or workshop where they may bf* con- veniently road by the persons employed. In a factory or workshop in Wales or Monmouthshire the regulations shall be posted up in the "Welsh language also. (3) A printed copy of all such regulations shall be given by the occupier to any person affected thereby on his or her application. (4) If the occupier of any factory or workshop fails to comply with any provision of this section as to posting up or giving copies, he shall be liable to a fine not exceeding ten pounds. (5) Every person who pulls down, injures, or defaces any regulations posted up in pursuance of this Act, or any notice posted up in pursuance of the regulations, shall be liable to a fine not exceeding five pounds. (6) Regulations for the time being in force under this Act shall be judicially noticed. Sects. 8, 9, 10 and 12, and the First Schedule of the Act of 1891, and sects. 12, 24, sub-sect.' (3), and 28 of the Act of 1890 are still in force: vide note prefixed to sect. 79, sKpra. Certificates that processes are dangerous and injurious to health, under sect. 8, sub-sect (1), of the Act of 1891, have been issued by the Secretary of State in the following cases :^ Manufacture of white; lead ; manufacture of paints and extraction of arsenic ; enamelling of iron plates (St. E,. & O. Rev. 1904, Vol. IV., Factory and Workshop, p. 44 ; L. G., Mav 13, 1892). Manufacture of lucifer matches {ihid. p. 4.5 ; L. G., June 7, 1892). Manufacture of eiirthenware, and of certain explosives ; chemical works ; quarries [ibid. p. 46 ; L. C, Dec. 27. 1892). Manufacture of red, orange, or yellow lead ; lead smelting ; tinniug and enamelling iron hollow-waie {ibid. p. 47 ; L. G., Jan. 5, 1894). Flax mills and linen factories {ibid. p. 48 ; ibid.). Tinniug and enamelling metal hollow- ware and cooking utensils [ibid. L. G., June 22, 1894). "Wliere yellow chromate of lead is used or where goods dyed with it are treated in any way {thid. p. 49 ; L. G., April 19, 189.5). Jlixing and casting of brass, gim metal, bell metal, white metal, delta metal, phosphor bronze, and manilla mixture {ibid. p. .50 : L. G., Jari. 10, 189G). Sorting wool, goat or camel liair {ibid. p. 51 ; L. G.. Aug. 7, 189G). Bottling aerated water {^ibid. p. 52). Vulcanizing indiarubber {ihtd. p. 53 ; L. G., Dec. 4, 1896). Sorting foreign hides and skins jbid. p. 53 ; L. G., April 5, 1898). Manufacture and decoration of earthenware and china {ibid. p. 54; I-. G., Mav H), 1898). ])usting of colours on adhesive surfaces in the preceding pi-ocesses {ibid. p. .55 ; L. G., Aug. 12, 1898). Glazing bricks with use of lead [ihid. p. 56 ; L. G., Dec. 20, 1898). Sortinif, willeyiujr, washing, comhiiii;-, and carding wool, and goat and camel hair {ibid!; L. G., Dee. 1, 1899). N.B. ' The special regulations, made by chief inspectors in these cases, are collected in Mr. Evans Austin's Laiv Uelttti)i;i to' Factories and H'orkshopn (2nd ed.), 1901, nt p. 342. olo FACTORY AND WORKSHOP ACT, 11)01 Duties of owiujr of tenomeut factory. PAET V. Special Modifications and Extensions. (i) Tenement Factories. 87. — (1) The owner (whether or not he is one of the occupiers) of a tene- ment factor}^ {h) shall, instead of the occupier, be liable for the observance, and punishable for non-observance, of the following provii^ions of this Act, namely, the provisions with respect to — (i) the cleanliness, freedom from effluvia, overcrowding and ventilation of factories, contained in section one of this Act, including, so far as they relate to any engine-house, passage, or staircase, or to any room which is let to more than one tenant, the provisions with respect to limowashing and washing of the interior of a factory ; (ii) the fencing of machinery, and penal compensation for neglect to fence machinery in a factory, except so far as relates to such parts of the machinery as are supplied by the occupier ; (iii) the notices to be affixed in a factory with respect to the period of employment, times for meals, and system of employment of children ; (iv) the prevention of the inhalation of dust, gas, vapour, or other impurity, so far as that provision requires the supply of pipes or other contrivances necessary for working the fan or other means for that purpose ; and (v) the affixing of an abstract and notices in a factory. Provided that any occupier may affix in his own tenement the notice with respect to the period of employment, times for meals, and system of employ- ment of children, and thereupon that notice shall, with respect to persons employed by that occupier, have effect in substitution for the corresponding notice affixed by the owner. (2) The provisions of this Act with respect to the power to make orders in the case of dangerous premises shall apply in the case of a tenement factory as if the owner were substituted for the occupier. (8) In the case of any tenement factory or class of tenement factories used wholly or partly for the weaving of cotton cloth, the owner shall, if the Secretary of State by order so directs, be substituted for the occupier for the purpose of the requirements of section seven and section ninety-four of this Act or of any order of the Secretary of State with respect to ventilation. (4) Where, by or under this section, the owner of a tenement factory is substituted for the occupier with respect to any provisions of this Act, any summons, notice, or proceeding, winch for the purpose of any of those pro- visions is by this Act re(piired or authorised to be served on or taken in rela- tion to the occupier, is hereby required or authorised (as the case may be) to be served on or taken in relation to the owner. The provisos to sub-sect. (1), and sub-sect. (3), are new. :b) Defined in sect. 149 (1). FACTORY AND WORKSHOP ACT, 1901. 511 88. — (1) Where grindinp; is carried on in a tonomont factory, the owner Regulations of the factory shall be rosponsihlo for the observance of the regulations set ^>* to j^rind- forth in the Third .Schedule to this Act. "'*?, "^ cutlery (2) In every sucli tenement factor}- it shall be the duty of the owner and in tenement of the occupier of the factory respectively to see that such part of the horsing factory, chains and of the hooks to which the chains are attached as are supplied by them respectively are kept in efficient condition. (3) In every tenement factory whore grinding of cntlery is carried on, the owner of the factory shall provide that there shall at all times be instantaneous communication between each of the rooms in w'hich the work is carried on and both the engine-room and the boiler-house. (4) A tenement factory in which there is a contravention of this section shall be deemed not to be kept in conformity with this Act, but for the purposes of any proceeding in respect of a provision for the observance of which the owner of the factory is responsible, that owner shall be substituted for the occupier of the factory. (5) This section shall not apply to a textile factory. Sub-sect. (1). See note on Third Scliedule to this Act. 89. A certificate of the fitness of any young person or child for employ- Certificate of ment in a tenement factory shall be valid for his similar emjdoyment in any titness in part of the same tenement factory. f!*'!^^'!^," (ii) Cotton Clofli and other Hnniid Factories. 90. In every room, shed, or workshop, or part thereof, in which the Temperature weaving of cotton cloth is carried on (in this Act referred to as a " cotton and humidity, cloth factory"), the following provisions shall have effect : — (1) The amount of moisture in the atmosphere must not at anj- time be in excess of such amount as is represented by the number of grains of moisture per cubic foot of air shown in column I. of the table in the Fourth Schedule to this Act opposite to such figure in column II. as represents the temperature existing in the cotton cloth factory at that time : Provided that the temperatiire shall not at anj^ time be raised by any artificial means whatsoever (except by gas used for lighting purposes only) above seventy degrees, except in so far as may be necessary in the process of giving humidity to the atmosphere. (2) The fact that one of the wet-bulb thermometers in the factory gives a higher reading than the figure shown in column III. of the said table opposite to such figure in column II. as represents the temperature existing in the factory, shall bo evidence that the amount of moisture in the atmosphere exceeds the limit prescribed by this section. The provisions of the repealed Cotton Cloth Factories Acts, toijether with the Secretary of State's Orders made under them, are embodied in this and the six following sections. 91. The Secretary of State may by order repeal or vary the table in the Power to Fourth Schedule to this Act, and substitute any new or amended table alter table of therefor: hu.nidity. 512 FACTORY ANT) WORKSHOP ACT, 1001 Employment of thenuo- meters. Notices and inspections vhere Provided as follows : — (a) The variod or substituted table shall be laid in a complete form before both Houses of Parliament if Parliament is sitting, or if not, then •within three weeks after the beginning of the next ensuing session of Parliament ; and if the table is disapproved by either House of Parliament within forty days after having been so laid before Parliament, the table shall be void and of no effect : (b) The table shall not come into operation until it has been laid before Parliament for forty days ; but after the exj^iration of those forty days, if the table has not been disapproved of as aforesaid, the Secretary of State shall cause a copy thereof to be published in the London Gazette, and to be given to every occupier of a cotton cloth factory who, in pursuance of this Act, has given notice of humidity of the atmosjihero being artificially produced in that factory, and after the expiration of fourteen days from the first publication thereof in the London Gazette, the varied or substituted table shall be deemed to be the table in the Fourth Schedule to this Act. See order of Dec. 24, 1898 (St. R. & 0. Rev. 1904, Vol. IV., Factory and Work- shop, p. 6S). 92. — (1) In every cotton cloth factory, for the purpose of recording the humidity of the atmosphere and the temperature there must be provided, maintained, and kept in correct working order two sets of standardised wet and dry bulb thermometers. (2) The following regulations shall bo observed with reference to the emplojrment of such thermometers : — (a) One set of thennometers is to be fixed in the centre and one at the side of the factory, or in such other position as is directed or sanctioned by an inspector, so as to be plainly visible to the workers ; (b) The occupier or manager or person for the time being in charge of the factory shall read the thermometers thrice in the day, namely, between seven and eight o'clock in the foi-enoon, between ten and eleven o'clock in the forenoon, and between three and four o'clock in the afternoon, on every day on which any workers are employed in the factorj', and shall record the readings of each thermometer at each of those times on a form provided for the purpose for each set of thermometers in accordance with the Form of Record and the regula- tions contained in the Fourth Schediile to this Act ; (c) The form in which the readings of each thermometer are to be recorded must be kept hung up near the thermometers, and after being duly filled up, must be forwarded at the end of each month to the insiicctor of the district, and a copy must be kept at the factory for refei'ence ; (d) There must be kept hanging up in a frame, and properly glazed, in a conspicuous position and near to each set of thermometers, a copy of the table set out in the Fourth Schedule to this Act ; (e) Each form shall be prima facie evidence of the humidity of the atmo- sphere and temperature in the factory in which the form was hung uji . Sub-sect. (2) (b) — (e) do not apply to cotton-spinning mills; sect. 90 (d), infra. 93. — (1) The occupier of every cotton cloth factory in which humidity of the atmosphere is produced by any artificial means whatsoever (except by gas used for lighting pui'poses only) shall, at or before the time at which FACTORY AND WORKSHOP ACT, 1901. '^13 such artificial pruduction of humidity is commenced, give notice theretjf in hiirniflity is writing to the chief inspector of factories. artificially (2) Every factory in respect of which any such notice has been given shall ^ " be visited by an inspector once at least in over}' three months. The inspector shall exaiiiino into the temperature, humidity of the atmosphere, ventilation, and quantity of fresh air in the factory, and shall report to the chief inspector of factories in the prescribed foiin. (3) If at anj' time the occupier of any factory in respect of which any such notice has been given ceases to produce humidity by artificial means, he may give notice in writing of such cessation and from the date of that notice, and so long as humidity is not artificially produced in the factory, the provisions of this section shall not apply to that factory. 94. In eveiy cotton cloth factory the following regulations for the Rpgiilatious protection of health shall have effect, viz. : — ^"^ ^}^^' PJ*'" (1) The water used for the pur])ose of producing humidity shall either be health taken from a public sujjply of drinking water or other source of pure water, or shall be effectively purified to the satisfaction of the inspector before being introduced in the form of steam into the factory, and all ducts for the introduction of humidified air shall be kept clean. (2) The pipes used for. tlie introduction of steam into a cotton cloth factory in which the temperature is seventy degrees Fahrenheit or over shall, so far as they are within the shed, be as small both in diameter and length as is reasonably practicable, and shall be effectively covered with non-conducting material to the satisfaction of the inspector, so as to minimise the amount of heat thrown off by them into the shed. (3) In the case of a cotton cloth factory in which humidity of the atmo- sphere is produced by any artificial means whatsoever (except by gas used for lighting purposes only), the arrangements for ventilation shall be such that during working hours in no part of the cotton cloth factory shall the proportion of carbonic acid (carbon dioxide) in the air be greater than nine volumes of carbonic acid to every ten thousand volumes of ail". (4) Unless some other method certified bj- the inspector to be equally satisfactory is adopted, the outside of the roof of every cotton cloth factory shall be whitewashed every year before the thirty-first day of May, and such whitewash shall be effectively maintained until the thirty-first day of August. (5) In evvvy cotton cloth factory erected after the second day of February one thousand eight hundred and ninety-eight a sufficient and suitable cloak room, or cloak rooms, shall be ^irovided for the use of all the persons employed therein, and shall be ventilated and kept at a suitable temperature. As to application of this section, see sect. 96 (c), infra. 95. If in tlie case of any cotton cloth factory there is a contravention of Penalties for or non-compliance with any of the foregoing provisions with regard to "^n- cotton cloth factories, the inspector shall give notice in writing to the '^''"^P "^°<'®- occupier of the factory of the acts or omissions constituting the contraven- 514 FACTORY AND WORKRIIOr ACT, 1901. tion or non-coinplianco, and if those acts or omissions, or any of them, are continxied or not remedied, or are repeated within twelve months after the notice has been given, the occupier of the factory shall be liable, for the first ott'ence to a fine not less than five pounds and not exceeding ten pounds, and for every subsequent oii'once to a fine not less tlian ten pounds and not exceeding twentj' pounds. This section is absolute as to the amount of the fine to bo imposed, and excludes the discretion of the Court under sect. 1 of the Summary Jurisdiction Act, 1879, to mitigate the amount of a tine upim convictiou for a first offence : (hhorn v. Ty^ood Bros., [1897] 1 Q. B. 197. Application of foregoing' provisions to other humid factories. 96. The foregoing provisions of this Act with respect to cotton cloth factories shall apply to every textile factorj' in which atmospheric humidity is artificially produced by steaming or other mechanical api:)liances, and in which regulations under Part IV. of this Act with respect to humidity are not for the time being in force, but subject to the following qualifications, namely : — (a) The Secretary of State may by special order modify the provisions of the Fourth Schedule to this Act with respect to the maximum limits of humidity ; (b) The reading of the thermometer between seven and eight o'clock in the forenoon shall not be required ; and (c) Section ninc^ty-four respecting regulations for the protection of health in cotton cloth factories shall not ajiply ; and (d) The regulations in section ninety-two distinguished as (b), (c), (d), and (e) which are required to be observed with reference to the employment of thermometers shall not apply to cotton spinning mills. Sanitary regulations for bakehouses. Penalty for bakehouse being unfit on sanitary grounds. (iii) Bakehouses. 97. — (1) It shall not Ix; lawful to let or suffer to be occuined or to occupy any room or place as a bakehouse (c), unless the following regulations are complied with : — (a) A watercloset, earthcloset, privy, or ashpit must not be within or communicate directly with the bakehouse ; (b) Every cistern for supplying water to the bakehouse must be separate and distinct from any cistern for supplying water to a watercloset ; (c) A drain or pipe for carrj-ing off feecal or sewage matter must not have an opening within the bakehouse. (2) If any person lets or suffers to be occupied or occupies any room or place as a bakehouse in contravention of this section he shall be liable to a fine not exceeding forty shillings, and to a further fine not exceeding five shillings for every day during which any room or place is so occupied after a conviction under this section. 98. — (1) Where a court of summary jurisdiction is satisfied on the prose- cution of an inspector or a district council that any room or place used as a bakehouse is in such a state as to be on sanitary grounds unfit for use or [c) See definition inSched. fi, Part II. (23} ; andcf. " retail bakehouse " insect. 102. FACTORY AND WORKSHOP ACT, 1901. ''^'^ occupation as a bakehouse, the occupier of th^ bakehouse shall be liubb- to a fine not exceeding, for the first offenco, forty shillings, and for any subse- quent offence five pounds. (2) The court of summary jurisdiction, in addition to or instead of inflict- ing a fine, may order means U) be adopted by the occupier, within the time named in the order, for the purpose of removing the ground of complaint. The court may, on a2)plicati()n, (snlargo the time so named, but if aftijr the expiration of the time as originally named or enlarged by subsequent order the order is not complied with, the occupier shall be liable to a tine not exceeding one pound for every day that the non-compliance continues. 99.— (1) All the inside walls of the rooms of a bakehouse, and all the Lirnewashii>g, ceiling or tops of those rooms (whether those walls, ceilings, or tops are P'^'".™?'^" plastered or not), and all the passages and staircases of a bakehouse, must bakehouses, either bo painted with oil or varnished or be limewashed, or bo partly painted or varnished and partly limewashed ; and (a) where the bakehouse is painted with oil or varnished, there must be throe coats of paint or varnish, and the paint or varnish must be renewed once at least in every seven years, and must be washed with hot water and soap once at least in everj' six months ; and (b) where the bakehouse is limewashed, the limewashing must be renewed once at least in everj'' six months. (2) A bakehouse in which there is a contravention of this section shall be deemed not to be kept in confcn-mity with this Act. 100. — ( 1 ) A place on the same level with a bakehouse, and forming part Provision as of the same building, may not be used as a sleeping place, unless it is con- sleeping' structed as follows ; that is to say bakehouses. (a) is effectually separated from the bakehouse by a partition extending from the floor to the ceiling ; and (b) has an external glazed window of at least nine superficial feet in area, of which at the least four and a half superficial feet are made to open for ventilation. (2) If any person lets or occupies or continues to let or knowingly suffers to be occupied any place contrary to this section he shall be liable to a fine not exceeding, for the first offence, twenty shillings, and for any subsequent offence five pounds. 101. — (1) An underground bakehouse shall not be used as a bakehouse Prohibition of unless it was so used at the passing of this Act. underground uRiC6ll0llS6S (2) Subject to the foregoing provision, after the first daj' of January one thousand nine hundred and foiu-an underground bakehouse shall not be used unless certified by the district council to bi^ suitable for that purpose. (3) For the purpose of this section an underground bakehouse shall mean a bakehouse, any baking room of which is so situate that the surface of the floor is more than three feet below the surface of the footway of the adjoin- ing street, or of the ground adjoining or nearest to the room. The expression "baking room" means any room used for baking, or for any process incidentil thereto. (4) An underground bakehouse shall not bo certified as suitable unless the district council is satisfied that it is suitable as regards construction, light, ventilation, and iu all other respects. h l2 516 FACTORY AND WORKSHOP ACT, 1901. 54 & c. 76 (5) This soctidii shall have effect as if it were included imioiig the ])rovi- sions relating to bakehouses which are refevved to in section twenty -six of 0.5 Vict, the Public Health (London) Act, 1891. (6) If any place is used in contravention of this section, it shall bo deemed to be a workshop not kept in conformity with this Act. (7) In the event of the refusal of a certificate bj' the district council, the occupier of the bakehouse may, within twenty-one days from the I'cfusal, by complaint apply to a court of summary jurisdiction, and if it appears to the satisfaction of the court that the bakehouse is suitable for use as regards construction, light, ventilation, and in all other respects, the court shall thereu])on grant a certificate of suitability of the bakehouse, which shall have effect as if granted by the district council. (8) Where any place has been let as a bakehouse, and the certificate required by this section cannot be obtained unless structixral alterations are made, and the occupier alleges that the whole or part of the expenses of the alterations ought to be borne by the owner, he may by complaint apply to a court of summary jurisdiction, and that court may make such order con- cerning the expenses or th(ur api)oi'tioniuent as appears to the court to be just and eqviitable, under the circumstances of the case, regard being had to the terms of any contract between the parties, or in the alternative the coui"t may, at the request of the occupier, determine the lease. Sub- sects. (2)— (5) aud (7) and (8) are new. Sub-sect. (1). Under a similar provision (sect. 27, sub-sect. (3) ) in the Act of 1895 an underground bakehouse was held to have been " so used at the commemie- meut of this Act," on these facts : — The premises had been fitted up with an underground bakehouse in 1879, and had been occupied and used hy a baker to October, 189o, when the tenant lefr. The owner then re[);tired the premises, iucbiding the oven aud undergiound bakehouse, and advertised thera for occupation as " baker's premises." The repairs were finished at Christmas, 1895, and the premises were not occupied till February, 1896 ; the Act came into operation on .January 1, 1896: Schwerzerhof \ . JVilkiii^, [1898] 1 Q. B. 640. Sub-sects. (2) and (8). A covenant by the lessee to pay " all . . . . impositions and outtroings of every description" includes expenses of structural alterations necessary for the obtaining of the district council's certificate: Goldstein v. Ho/linr/s- irorth, [1904] 2 K. B. 578. Sub-sect. (8). In the case of a covenant by the tenant to pay " all outgoings," the magistrate has no jurisdiction to impose the payment of any of the expenses of structural alterati, [1905] 1 K. B. 346. Sub-sect. (2). "Notice of accidents " : see sect. 19, supra, and Notice of Accidents Act, 1906, ss. 4 and 5, infra, at p. 859. (vii) Bailwai/s. 106. — (1) Where any line or siding not being part of a railway within the Application meaning of the Railway Employment (Prevention of Accidents) Act, "* '•"pi" .^iiii ° •' ^ •' ^ ' provisions to 1900 (fi), is used in connexion with a factory or workshop, or with any place railway to which any of the provisions of this Act are applied, the provisions of this sidings. Act with respect to— ^'^ ^_ '^^ ^^''^^'^^ (i) Power to make orders as to dangerous machines (section seventeen) ; (ii) Accidents ; (d) Sect. 16, printed at p. 567. 520 FACTORY AND WORKSHOP ACT, 1901. (iii) Regulations for dangerous trades ; (iv) Powers of inspectors (section one hundred and nini^teen) ; and (v) Fines in case of death or injur j' (section one hundred and thirty-six) ; shall have cfTect as if the lino or siding were part of the factory or workshoj). (2) If any such line or siding is used in connexion with more than one factory or workshop belonging to different occupiers, the foregoing provisions shall have effect as if the lino or siding were a separate factory. This is new. Sub-sect. (1) (ii). " Accidents " : see sect. 19, supra, and sects. 4 and 5 of the Notice of Accidents Act, 1906, printed at p. 859, infra. PART VI. IIoME Work. Lists of 107. In the case of persons employed in such classes of work as may from outworkers ^^jjjjj, ^f, |j^,^,, ^,q specified by Special Order of the Secretary of State — to bo kept in certain trades. (1) The occupier of every factory and workshop and every contractor emidoycd by any such occupier in the business of the factory or workshop shall — (a) keep in the prescribed form and manner, and with the prescribed l)articulars, lists showing the names and addresses of all persons directly employed by him, either as workmen or as contractors, in the business of the factory or workshop, outside the factory or workshop, and the places where they are employed ; and (b) send to an inspector such copies of or extracts from those lists as the inspector may fi'om time to time require ; and (c) send on or before the first day of February and the first day of August in each year copies of those lists to the district council of the district in which the factorj^ or workshop is situate. (2) Every district council shall cause the lists received in pursuance of this section to be examined, and shall furnish the name and place of employment of every outwoi'ker included in any such list whose place of employment is outside its district to the council of the district in which his place of employment is. (;J) The lists kept by the occui:)ier or contractor shall be open to inspection by any insi^ector under this Act, and by any officer duly authorised by the district council, and the copies sent to the council and the particulars furnished by one coiincil to another shall bo ojien to inspection by any inspector under this Act. (4) This section shall apply to any place from which any work is given out, and to the occuj^ior of that i)lace, and to every contractor employed by any such occupier in connexion with the said work, as if that place were a workshop. (o) In the event of a contravention of this section by the occupier of a factory, workshop, or place, or by a contractor, the occupier or con- tractor shall be liable to a fine not exceeding forty shillings, and in the case of a second or subsequent offence, not exceeding five pounds. This is new. See order of May 23, 1907 (St. R. k. O. 1907, Factory and Workshop, p. 156). FACTOliY AN I) WORKSHOP ACT, 1001. 521 108.— (1) It' the district council within whose district is situate a place in Employment which work i.s curried on lor the purpose of or in connexion with the busineas of p^-rson in of a factory or workshop give notice in writing t(j the occupier of the factory pi.e,„i„(.8. or workshop, or to any contractor eniiiloytjd by any such occupier, that that place is injurious or dangerous to the health of the persons employed therein, then, if the occupier or contractor after the expiration of one month from receipt of the notice gives out work to be done in that place, and the place is found by the court having cognizance of the case to be so injurious (jr dangerous, ho shall be liable to a fine not exceeding ten pounds. (2) This section shall apply in the case of the occupier of any place from which any work is given out as if that place were a workshop. (3) This section shall not apply except in the case of persons employed in such classes of work as the Secretary of State may specify by Special Order. Sub-sect. (o). See order under precodind in a factory or workshop, and to require every such person to be so examined and to sign a declaration of the truth of the matters respecting which he is so examined ; and (g) To exercise such other powers as may be necessary for carrying this Act into effect. (2) The occupier of every factory and workshop, his agents and servants, shall furnish the means required by an inspector as necessary for an entry, inspection, examination, inquiry, or the exercise of his powers under this Act in relation to that factory or workshop. (3) If any person wilfully delays an inspector in the exercise of any power under this section, or fails to comply with the requisition of an inspector in pursuance of this section, or to produce any certificate or document which he is required by or in piirsuauce of this Act to produce, or conceals or prevents, or attempts to conceal or prevent a woman, young person, or child, from appearing before or being examined by an inspector, that person shall be deemed to obstruct an inspector in the execution of his duties under this Act : Provided that no one shall be required under this section to answer any question or to give any evidence tending to criminate himself. (4) Where an inspector is obstructed in the execution of his duties under this Act, the person obstructing him shall be liable to a fine not exceeding (w«) As to charitable institutions, sec Factory and Workshop Act. 1007. s. 5 (2) (d), (printed at p. 863, iii/rd)- 528 FACTORY A\D WORKSHOP ACT, 1901. Right of inspector to couduft pro- ceedings before magis- trates. Certificate of appoiutnieut of inspector. five povinrls ; aiul where an insjioctor is so obstructed in a factory or work- shop, other than a domestic factory or a domestic workshop, the occupier of that factor J' or workshop shall bo liable to a fine not exceeding five, or where the offence is committed at night twenty, pounds ; and wh(»re an inspector is so obstructed in a domestic factory or a domestic workshop, the occupier shall be liable to a fine not exceeding one pound, or where the offence is committed at night five pounds ; and in the case of a second or subsequent conviction under this section in relation to a factory within two years from the last conviction for the same offfinco, a fine not less than one pound sliall be imposed for each offence. For other powers possessed by "inspectors of factories" see sect. H, supra ; Truck Act, 1887, sect. i:5, .sub-sect. (2), and Truck Act, 1896, sect. 10; Employ- ment of Children Act, 1903, sect. 9 ; Prevention of Cruelty to Children Act, 1904, sect. 3, sub-.sect. (2) ; Factory and Workshop Act, 1907, s. 6. 120. An inspector, if so authorised in writing under the hand of the Secretary of State, may, although he is not a counsel, or solicitor, or law agent, prosecute, conduct, or defend, before a court of summary jurisdiction or justice, any information, comjilaint, oi' other proceeding arising under this Act, or in the discharge of his duty as inspector. 121. Every inspector shall bo furnished with the proscribed certificate of his appointment, and on applying for admission to a factory or workshop sliall, if so r(H]uircd, produce the said certificate to the occupier. Appointment and duties of certifying surgeons. (ii) Certifi/ing Siirc/eons. 122. — (1) Subject to such regulations as may be niadt; bj- the Secretary of State, an inspector may appoint a sufficient number of duly registered medical practitioners to be certifying surgeons for the purposes of this Act, and may revoke any sTich appointment. (2) Every appointment and revocation of ajipointment of a certifying surgeon may be annulled by the Secretary of State upon appeal to liim for that purpose. (3) A surgeon who is the occui)ior of a factory or workshop, or is directly or indirectly interested therein, or in any process or business carried on therein, or in a patent connected therewith, shall not bo a certifying surgeon for that factory or workshop. (4) The Secretary of State may make rules for the guidance of certifying surgeons, and for the particulars to be registered respecting their visits, and for the forms of certificates and other documents to be used by them. (5) Every certifying surgeon shall, if so directed by the Secretary of State, make any .special inquiry and re-examine any young person or child. (6) Every certifying siu'geon shall in each year make at the proscribed time a report in the prescribed form to the Secretary of State as to the persons inspected during. the year and the results of the inspection. See sects. 63 — 67, supra. As to charitable institutions, see Factory atul Workshop Act, 1907, s. 5 (2) (b). When poor 123. "Where there is no certifying surgeon for a factory or worksho]), the otficeHs toact l"""i" l^w medical officer for the district in which the factory or workshop is FACTORY AND WORKSHOP ACT, 1901 . 529 situate shall act for tho time being as the certifying surgeon for that factoiy as certifying or workshop. surgeon. This is new. 124. — (1) The fees to be paid to a certifying surgeon in respect of the Fees of examination of, and grant of certificatos of fitness for employment for, certifying young persons and children, shall be regulated as follows : — (a) Tho occupier of tho factory^ may agree with the certifying surgeon as to tho amount of the fees ; (b) In tho absence of agreement the fees shall be in accordance with the scale set forth in Part I. of the Fifth Schedule to this Act, or with such scale as may be substituted therefor by the Secretary of State ; (c) The occupier shall pay the fees on the completion of the examination, or if any certificates are granted, at the time at which the surgeon signs the certificates, or at any other time directed by an inspector ; (2) The fees to be paid to a certifying surgeon in cases where, in pursuance of a direction of tho Secretary of State or of regulations made under this Act, he is required to examine the persons employed in a factory or work- shop, shall be in accordance with the scale set forth in Part II. of the Fifth Schedule to this Act, or with such scale as may be substituted therefor by the Secretary of State. Such fees shall, where the examination is in pur- suance of a direction of the Secretary of State, be paid by the Secretary of State, and where the examination is in pursuance of regulations be paid by the occupier of the factory or workshop. (3) The fee to be paid to a certifjang surgeon for the investigation of an accident in pursuance of this Act shall be such sum, not more than ten nor less than three shillings, as the Secretary of State may prescribe, and shall be paid by the Secretary of State as expenses incurred in the execution of this Act. (iii) Local Authorities. 125. For the purpose of their duties with respect to workshops and work- Powers of places under this Act, and under the law relating to public health, the 1?^^^ autho- district council and their officers shall, without prejudice to their other [J^*^^?^^ ^^ powers, have all such powers of entry, inspection, taking legal proceedings, or otherwise, as an inspector under this Act. (iv) Special Orders. 126. The following provisions shall apply to such orders made by the Provisions as Secretary of State in pursuance of this Act as are in this Act referred to as to special Special Orders :— ^''^i^J's of Secretary of (1) The order shall be under the hand of the Secretary of State and shall State. be published in such manner as the Secretary of State thinks best adapted for the information of all persons concerned, and shall come into operation at the date of its publication, or at any later date mentioned in the order : (2) The order may be temporary or permanent, conditional or uncondi- tional, and whether granting or extending an exception or prohibition, U. MM 530 FACTORY AND WORKSHOP ACT, 1901. or directing the adoption of any special means or provision, or rescind- ing a previous order, or effecting any other thing, may do so either ■wholly or partly : (3) The order shall be laid as soon as may be before both Houses of Parlia- ment, and if either House of Parliament, within the next forty days after the order has been so laid before that House, resolves that the order ought to be annulled, it shall after the date of that resolution be of no effect, without prejudice to the validity of anything done in the meantime under the order or to the making of a new order : (4) The order, while it is in force, shall, so far as is consistent with the tenor thereof, apply as if it formed part of the enactment which provides for the making of the order. Notice of occupation of factory or workshop. AfiBxinr i'lforination (.see sect. 146) is to h'^ calculated by reference to the date of the " bodily injury " : R. v. Taylor, [1908] 2 K. B. 237. 137,— (1) Where any person is employed in a factory or workshop, other Fine for than a domestic factory or a domestic workshop, contrary to the provisions p^P^JJ*"^ of this Act, the occupier of the factory or workshop shall be liable to a fine contrary to not exceeding three, or if the offence was committed during the night five, Act. pounds for each person so employed, and, in the case of a second or sub- secpent conviction in relation to a factory within two years from the last conviction for the same offence, not less than one pound for each offence ; and whore any person is so employed in a domestic factory or a domestic workshop the occupier shall be liable to a fine not exceeding one, or if the offence was committed during the night two pounds, for each person so employed, and, in the case of a second or subsequent conviction within two years from the last conviction in relation to a factory for the same offence, not less than one pound for each offence. (2) If a woman, young person, or child is not allowed times for meals and absence from work as required by this Act, or during any part of the times allowed for meals or absence from work is, in contravention of the provisions of this Act, employed in the factory or workshop, or allowed to remain in any room, the woman, young person, or child shall be deemed to be employed contrary to the provisions of this Act. 138, — (1) If a young person or child is employed in a factory or workshop Fine for contrary to the provisions of this Act, the parent (o) of the young person or offence by child shall be liable to a fine not exceeding twenty shillings for each offence, unless it appears to the court that the offence was committed without the consent, connivance, or wilful default of the parent. (2) If the parent of a child neglects to cause the child to attend school in accordance with this Act, he shall be liable to a fine not exceeding twenty shillings for each offence. 139. If any person — Forgery of fa") forges or counterfeits any certificate for the purposes of this Act certificates, • TiilsG entries (for the forgery or counterfeiting of which no other punishment is ^^^^ ^^^^ ' provided) ; or declarations. (b) gives or signs any such certificate knowing the same to be false in any material particular ; or (c) knowingly utters or makes use of any certificate so forged, counter- feited, or false as aforesaid ; or {o) Defined sect. 156. 534 FACTORY AND WORKSHOP ACT, 1901. Fine on per- son actually committing offence for which occu- pier is liable. Power of occupier to exempt him- self from fine on conviction of the actual offender. Owner of machine liable in certain cases instead of occupier. (d) knowingly utters or makes use of as applying to any person a certi- ficate which does not so apply ; or (e) personates any person named in a certificate ; or (f ) falsely pretends to be an inspector ; or (g) wilfully connives at the forging, counterfeiting, giving, signing, uttering, making use, or personating as aforesaid ; or (h) wilfully makes a false entry in any register, notice, certificate, or document, required by this Act to bo kept or served or sent ; or (i) wilfully makes or signs a false declaration under this Act ; or (j) knowingly makes use of any such false entry or declaration, he shall be liable to a fine not exceeding twenty pounds, or to imprisonment for a term not exceeding three months, with or without hard labour. 140. AMiere un offence for which the occupier of a factory or workshop is liable under this Act to a fine has in fact been committed by some agent, servant, workman, or other person, that agent, servant, workman, or other person, shall be liable to the like fine as if he were the occupier. 141. ^1) Where the occupier of a factory or workshop is charged with an offence against this Act, he shall be entitled upon information duly laid by him to have any other person whom he charges as the actual offender brought before the court at the time appointed tor hearing the charge ; and if, after the commission of the offence has been proved, the occupier of the factory or workshop proves to the satisfaction of the court — (a) that he has used due diligence to enforce the execution of this Act; and (b) that the said other person had committed the offence in question without his knowledge, consent, or connivance, that other person shall be summarily convicted of the offence, and the occu- . pier shall be exempt from any fine. The person so convicted shall, in the discretion of the court, be also liable to pay any costs incidental to the proceedings. (2) When it is made to appear to the satisfaction of an inspector at the time of discovering an offence — (a) that the occupier of the factory or workshop has used all due diligence to enforce the execution of this Act ; and (b) by what person the offence has been committed ; and (c) that it has been committed without the knowledge, consent, or con- nivance of the occupier and in contravention of his orders, the inspector shall pi'oceed against the person whom he beHevcs to be the actual offender without first proceeding against the occupier of the factory or workshop. 142. W'here in a factory the owner or hirer of a machine or implement moved by steam, water, or other mechanical power, is some person other than the occupier of the factory, the owner or hirer shall, so far as respects any offence against this Act committed in relation to a person who is employed in or about or in connexion with that machine or implement, and is in the employment or pay of the owner or hirer, ])e deemed to be the occupier of the factory. FACTORY AND WOKKSHOP ACT, 1901. '535 143. A person shall not be liable in respect of a repotition of the same Limit to kind of offence from day to day to any larger amount of fines than the cumulative highest fine fixed by this Act for the offence, except — (a) -where the repetition of the offence occurs after an information has been laid for the previous offence ; or (b) whore the offence is one of fmploying two or more persons, contrary to the provisions of this Act. 144.— (1) All offences under this Act shall be prosecuted, and all fines Prosecution under this Act shall bo recovered, on summary conviction, before a court of °* offences " . . and reriovery summary jurisdiction in manner provided by tho Summary Jurisdiction and applica- Acts. tion of fines. (2) A summary order may be made for the purposes of this Act by a court of summaiy jurisdiction in manner provided by the Summary Jurisdiction Acts. (3) All fines imposed in pursuance of this Act shall, save as otherwise expressly provided for by this Act, be paid into the Exchequer. (4) Where a proceeding is taken before a court of summary jurisdiction ■with respect to an offence against this Act alleged to be committed in or ■with reference to a factory or -workshop, the occupier of the factory or -work- shop, and the father, son, or brother of the occupier of the factory or ■workshop, shall not be qualified to act as a member of the court. (5) A person engaged in, or being an officer of any association of persons engaged in, the same trade or occupation as a person charged ■with any offence under this Act shall not act as a justice of the peace in hearing and determining the charge. Sub-sect. (5) is new. 145. If any person feels aggrieved by a conviction or order made by a Appeal to coui't of summary iurisdiction on detei-mining an information or complaint quarter •' '' ... sessions, under this Act, he may appeal therefrom to quarter sessions ( p). 146. The folio-wing provisions shall have effect ■with respect to summary Limitation proceedings for oft'eiices and tines under this Act : — °^ *^™^, ^^°- general pro- (1) The infoiTuation shall be laid ■within three months after the date at visions as to ■which the offence comes to the kno^wledge of the inspector for the summary T)rOCGGCllIl"S district ■within -which the offence is charged to have been committed, ° or, in case of an inquest being held in relation to the offence, then ■within t^wo months after the conclusion of the inquest, so, ho^wever, that it be not laid after the expiration of six months from the commis- sion of the offence : (2) It shall be sufficient to allege that a factory or workshop is a factory or ■workshop ■within the meaning of this Act, ■without more : (3) It shall be sufficient to state the name of the ostensible occupier of the factory or ■workshop, or the title of the firm by ■which the occupier employing persons in the factory or ■workshop is usually known : (4) A conviction or order made in any matter arising under this Act, either originally or on appeal, shall not be quashed for -want of form, {p) For procedure see Summary Jurisdiction Acts. 536 FACTORY AND WORKSHOP ACT, 1901. Evidence iu suiniuaiy proceedings. Service of notices and documents, &c. and a couviction or order made by a court of summary jurisdiction against which a jiorson is authorised by this Act to appeal shall not be removed by certiorari or otherwise, either at the instance of the Crown or of any private person, into a superior court, except for the pui'pose of the hearing and determination of a special case. Sub-sect. (1). See R. v. Taijlor, [1908] 2 K. B. 237. 147. — (1) If a person is found iu a factory or workshop, except at meal times, or while all the machinery of the factory or workshoj) is stopped, or for the sole purpose of bringing food to the persons employed in the factory or workshop between the hours of four and five o'clock in the afternoon, he shall, until the contrary is proved, be deemed for the purposes of this Act to have been then employed in the factory or workshop : Provided that yards, playgrounds, and places open to the public view, schoolrooms, waiting rooms, and other rooms belonging to the factory or woikshoj) in which no machinery is used or manufacturing process carried on, shall not be taken to be any part of the factory or workshop within the meaning of this enactment ; and this enactment shall not apply to a domestic (7) factory or workshop. (2) Where a young person or child is, in the opinion of the court, appar- ently of the age alleged by the informant, it shall lie on the defendant to prove that the young person or child is not of that age. (.3) A declaration in writing by a certifying surgeon for the district that he has personally examined a person employed in a factory or workshop in that district, and believes him to be under the age set forth in the declara- tion, shall be admissible iu evidence of the age of that person. (4) A copy of a conviction for an offence against this Act purporting to be certified under the hand of the clerk of the peace having the custody of the conviction to be a true copy shall bo receivable as evidence, and every such clerk of the peace shall, on the written request of an inspector and payment of a fee of one shilling, deliver to him a copy of the conviction so certified. 148. Any notice, order, requisition, summons, and document, required or authorised to be served or sent for the purposes of this Act — (a) may be served and sent by post, or by delivering the same to or at the residence of the person on or to whom it is to be served or sent, or (where he is the owner of a factory or workshop) by delivering the same or a true copy thereof to his agent, or (whore he is the occupier of a factory or workshop) by deliveiing the same or a true copy thereof to his agent or to some person in the factory or workshop ; and (b) where it is required to be served on or sent to the occupier of a factory or workshoi^, shall be deemed to be properly addressed if addressed to the occupier of the factory or workshop at the factory or workshop, with the addition of the proper postal address, but without naming the person who is the occupier. (q) See sects. Ill — 115, aitpra. FACTORY AND WORKSnOP ACT, 1901. ^^"^ PART X. SUPrLEMENTAUY. (i) Ajrplication and Definitions. 149, _fn Subiect to the provisions of this section, tlio following ex- Factories and ^ , -11 • 1 i. 4.U <^u + ;., workshops to pressions have in this Act the meanings hereby assigned to thorn ; that is ^^^.^.^^ ^^^ to say :— applies. The expression "textile factory" moans any premises wherein or within the close or cvu-tilage of which steam, water, or other mechanical power is used to move or work any machinery employed in preparing, manufacturing, or finishing, or in any process incident to the manu- facture of cotton, wool, hair, silk, flax, hemp, jute, tow, china-grass, cocoa-nut fibre, or other like material, either separately or mixed together, or mixed with any other material, or any fabric made thereof : Provided that print works, bleaching and dyeing works, lace ware- houses, paper mills, flax scutch mills, rope works, and hat works shall not be deemed to be textile factories : The expression " non -textile factory" means— (a) any works, warehouses, furnaces, mills, foundi-ies, or places named in Part One of the Sixth Schedule to this Act ; and (b) any premises or places named in Part Two of the said schedule wherein or within the close or curtilage or precincts of which steam, water, or other mechanical power is used in aid of the manufacturing process carried on there ; and (c) any premises wherein or within the close or curtilage or precincts of which any manual labour is exercised by way of trade or for purposes of gain in or incidental to any of the following pui-poses, namely — (i) the making of any article or of part of any article ; or (ii) the altering, repairing, ornamenting, or finishing of any article ; or (iii) the adapting for sale of any article, and wherein or within the close or curtilage or precincts of which steam, water, or other mechanical power is used in aid of the manufacturing process carried on there : The expression "factory" means textile factory and non-textile factory, or either of those descriptions of factories : The expression "tenement factory" means a factory where mechanical power is supplied to tlitferont parts of the same building occupied by different persons for the purpose of any manufacturing process or handi- craft, in such manner that those parts constitute in law separate i'actories, and for the purpose of the provisions of this Act with respect to tenement factories all buildings situate within the same close or curtilage shall be treated as one building : The expression " workshop " means — (a) any premises or places named in Part Two of the Sixth Schedule to this Act, which are not a factory ; and 538 FACTORY AND WORKSHOP ACT, 1901. (b) any premises, room, or place, not being a factoiy, in wliich premises, room, or place, or within the close or curtilage or precincts of ■which premises, any manual labour is exercised by way of trade or for purposes of gain in or incidental to any of the following pur- poses, namely — (i) the making of anj' article or of part of any article ; or (ii) the altering, repairing, ornamenting, or finishing of any article ; or (iii) the adapting for sale of any article, and to or over which premises, room, or place the employer of the persons working therein has the right of access or control : The expression " workshop " includes a tenement workshop : The expression "tenement workshop" means any workplace in which, with the permission of or under agreement with the owner or occupier, two or more persons carry on any work which would constitute the woi-kplace a workshop if the persons working therein were in the employment of the owner or occupier. (2) A part of a factory or workshop may, with the approval in writing of the chief inspector, be taken for the purposes of this Act to be a separate factory^ or workshop. (;■{) A room solely used for the purpose of sleeping therein shall not be deemed to form part of the factory or workshop for the purposes of this Act. (4) Where a place situate within the close, curtilage, or precincts forming a factory or workshop is solely used for some purpose other than the manu- facturing process or handicraft carried on in the factory or workshop, that place shall not be deemed to form part of the factory or workshop for the pui-poses of this Act, but shall, if otherwise it would be a factory or work- shop, be deemed to be a separate factory or workshop, and be regulated accordingly. (5) A place or premises shall not be excluded from the definition of a factory or workshop by reason only that the place or premises is or are in the open air. (6) The exercise of any young person or child in any recognised efficient school, during a portion of the school hours, of any manual labour for the purpose of instructing the young person or child in any art or handicraft shall not be deemed to be an exercise of manual labour for the pm-pose of gain within the meaning of this Act. The last two clauses of sub-sect. (1), and the sentence, "with the approval," &c., in sub-sect. (2) are new. In Howarth v. Coles (1862), 12 C. B. N. S. 139, it was held (under the 7 & 8 Vict, c. 15, and the Bleaching and Dyeing Works Act, 1860) that the term " finishiii"-" meant finishing as incidental and ancillary to bleaching and dyeing. Qucnre, whether tliis decision could be supported under the present Act : see Rogers V. Manchester Ptiekiiic/ Co., [1898] 1 Q. B. Mi ; vide this note infra. _ Wea\'ing or plaiting of cotton- thread by steam, or other mechanical power, into a covering for strips of iron to bo used in making crinoline skirts is a process "incidental to " the making of a cotton fabric (7 & 8 Vict. c. 16, s. 73) : Whymper Y.Harnet/ {\86o), 18 C. B. N. S. 243. Thread was manufactured in hanks at respondent's manufactory at M. These hanks were then sent to his manufactory at L. to be wound by machinery moved FACTORY AND WORKSHOP ACT, 1901. 539 by flteam ou to copw, and then on to spools. — Hald, that the hitter premises were a "factory" within ?> k \ Will. IV. c. 103; and tliat the windinf.;' was a process "incidental to" the manufacture of thread: Haydon v. Taylor (1863), 33 L. J. M. C. 30. The fuUowing are nonie of the older decisions on the term " factory " : — A cliild was employed in "skutcliiug" — that is the first process of fini.shing goods wliich have been printed — in a room where no persons were employed in printing- ti-i-uies. But this room had direct communication with the print works, in which all the processes of printing were carried on. — Held, that the child was employed in a "print-work": Ilardcantle v. Jones (1862), 3 B. & S. 153. See 'Taylor v. Hickes (1862), 12 C. B. N. S. 152. A child was employed by calico- printers Bleaching, dyeing, and finishing or stiffening were done at one miU belonging to the ap[)eUants ; printing at another. Tlie mills were seven miles apart. — Held, that a child employed at the fonner was employed at an "incidental" printing process within 8 ifc 9 Vict. c. 29, and that the place where he was employel formed a part of "the establishment where the chief process of printing was carried on" : Hoylew Oram (1862), 12 C. B. N. S. 124: followed in Coles v. Dickinson (1864), 16 C. B. N. S. 604. See Haydon v. Taylor, ubi nap. A company carried on large works comprising the business of blast furnaces, iron rollininted by the chairman of the quarter sessions within tho jurisdiction of which the factory or workshop is situate. (18) Th(> decision of every umpii'e on the matters referred to him shall be final. (14) If a single arbitrator fails to make his award within twenty-one days after the day on which he was appointed, the party who appointed him may appoint another arbitrator to act in his place. (15) Arrangements shall, whenever practicable, be made for the matters in difference being heard at the same time before the arbitrators and the umpire. (16) The arbitrators and the umpire, or any of them, may examine the parties and their witnesses on oath, and may also consult any counsel, engineer, or scientific person whom they think it expedient to consult. (17) The payment, if any, to be made to any arbitrator or umpire for his services shall bo fixed by the Secretary of State and together with the costs of the arbitration and award shall be paid by the parties or one of them, according as the award may direct. Such costs may be taxed by a master of the Supreme Court, or, m Scotland, by the auditor of the Court of Session, and the taxing officer shall, on the written application of either of the parties, ascertain and certify the proper amount thereof. The amount, if any, payable by the Secretary of State shall be paid as part of the expenses of inspectors under this Act. The amount, if any, payable by the occupier of the factory or workshop may in the event of non-payment be recovered in the same manner as fines under this Act. This schedule [except paragraph (1)] is the same as Schedule I. of the Act of 1891. This latter schedule is still in force as regards " Special Rules " under sect. 8 of the Act of 1891. See notes before sect. 79 and after sect. 86, supra. K ft ^ 548 FACTORY AND WORKSHOP ACT, 1901. SECOND SCHEDULE. Section 49. FACTORIES AND Workshops in "wuicii Overtime is allowed. (1) Non-textilo factories and workshops and parts thereof where the material which is the subject of the manufacturinp^ process or handicraft is liable to be spoiled by weather ; namely, — (a) Flax scutch mills ; and (b) Any factory or workshop or part thereof in which is carried on the making or finishing of bricks or tiles not being ornamental tiles ; and (c) The part of rope works in which is carried on the open-air process; and (d) The part of bleaching and dyeing works in which is carried on open- air bleaching or Turkey red dyeing ; and (e) Any factory or workshop or part thereof in which is carried on glue making ; and (2) Non-textile factories and workshops and parts thereof where press of work arises at certain rociirring seasons of the year ; namely, — (f) Letter-press printing works ; and (g) Bookbinding works ; and any factory, workshop, or part thereof, in which is carried on the manufac- turing process or handicraft of — (h) Lithographic printiiig ; or (i) Machine ruling; or (k) Firewood cutting ; or (1) Bon-bon and Christmas present making ; or (m) Almanac making ; or (n) Valentine making ; or (o) Envelope making ; or (p) Aerated water making ; or (q) Playing card making ; and (3) Non-textile factories and workshops and parts thereof whore the business is liable to sudden press of orders arising from unforeseen events ; namely, any factory or workshop, or part thereof, in which is carried on the manufacturing process or handicraft of — (r) The making up of any article of wearing apparel ; or (s) The making up of furniture hangings ; or (t) Artificial flower making ; or (u) Fancy box-making ; or (v) Biscuit making ; or (w) Job dyeing ; and (4) Any part of a factory (whether textile or ncm-textile) or workshop which is a warehouse not used for any manufacturing process or handicraft, and in which persons are solely employed in polishing, cleaning, wrapping, or packing up goods. Paragraph (4). — ^The prohibition in this paragraph against overtime work being carried on in a part of a factory used for a manufacturing process or handicraft, extends to any part of the factory in whicli a manufacturing process or handicraft is carried on during the ordinary working liours, and does not merely prevent the overtime work being carried on in a part of the factory which is at the same time being used for a manufacturing process or handicraft : Smith v. Sibray Mall S^ Co., [1903] 2 K. B. 707. FACTORY AND WORKSHOP ACT, 1901. 549 THIED SCHEDULE. Regulations as to Grinding in Tenement Factory. Section 88. (1) Boards to fence the shafting and pulleys, locally known as drum hoards, must bo provided and kept in proper repair. (2) Hand rails must be fixed over the drums and kept in proper repair. (3) Belt guards, locally known as Scotchmen, must be pro\aded and kept in proper repair. (4) Every floor constructed on or after the first day of January one thousand eight hundred and ninety-six must be so constructed and main- tained as to facilitate the removal of slush, and all necessary shoots, pits, and other conveniences must be provided for facilitating such removal. (5) Every grinding room or hull established on or after the first day of January one thousand eight hundred and ninety-six must be so constructed that for the purjjose of light grinding there shall be a clear space of three feet at least between each pair of troughs, and for the purpose of heavy grinding there shall be a clear space of four feet at least between each pair of troughs and six feet at least in front of each trough. (6) The sides of all drums in eveiy grinding room or hull must be closely fenced. (7) Except in pursuance of a special exemption granted by the Secretary of State, a grindstone must not be run before any fire-place or in front of another gi'indstone. (8) A grindstone erected on or after the first day of January one thousand eight hundi'ed and ninety-six must not be run before any door or other entrance. Paragraph (7). See order dated October 25, 1897 (St. R. & 0. Rev. 1904, Vol. IV., Factory and Workshop, p. 67). 550 FACTORY AND WORKSHOP ACT, 1901. Sections 90- 92, 96. FOURTH SCHEDULE. Cotton Cloth Factories. TABLE. Maximum Limits of riinniditt/ of the Atmosphere at given Temperatures. I. II. III. IV. Grains of Vapour Dry Bulb Thorn lonietev Wet Bulb Tlicrinometor Percentage of Hiuiiidity. Saturation =^ 100. per Cubic Foot of Ail-. Roaditiirs. Deg-rees Fahrenheit. R' agings. Degrees Fahrenheit. 1-9 35 33 80 2-0 36 34 82 2-1 37 35 83 2-2 38 36 83 2-3 39 37 84 2-4 40 38 84 2-5 41 39 84 2-6 42 40 85 2-7 43 41 84 2-8 44 42 84 2-9 45 43 85 3-1 46 44 86 3-2 47 45 S6 3-3 48 46 86 3-4 49 47 86 3-5 50 48 86 3-6 51 49 86 3-8 52 50 ■ 86 3-9 53 51 86 4-1 54 52 86 4-2 55 53 87 4-4 56 54 87 4-5 57 55 87 4-7 58 56 87 4-9 59 57 88 51 60 58 88 5-2 61 59 88 5-4 62 60 88 5-6 63 61 88 5-8 64 62 88 FACTORY AND WORKSHOP ACT, 1901. 551 I. II. III. IV. Grains of Vapour per Cubic Foot of Air. Dry Bulb Thermometer Readings. Deffrecs Fahrenheit. Wet Bulb Thermometer Readings. Degrees Fahrenheit. Percentage of Humidity. Saturation -^ 100. 6-0 65 63 88 6-2 66 64 88 6-4 67 65 88 6-6 68 66 88 6-9 69 67 88 7-1 70 68 88 7-1 71 68-5 85-5 7-1 72 69 84 7-4 73 70 84 7-4 74 70-5 81-5 7-65 75 71-5 81-5 7-7 7(5 72 79 8-() 77 73 79 8-0 78 73-5 77 8-2o 79 74-5 77-5 S'oo 80 75-5 77-5 8-() 81 76 76 8-65 82 76-5 74 8-85 83 77-5 74 8-9 84 78 72 9-2 85 79 72 9-5 86 80 72 9-55 87 80-5 71 9-9 88 81-5 71 10-25 89 82-5 71 10-3 90 83 69 10-35 91 83-5 (38 10-7 92 84-5 68 110 93 85-5 (38 IM 94 86 66 11-0 95 87 66 11-8 96 88 66 11-9 97 88-5 65*5 12-0 98 89 64 12-3 99 90 64 12-7 100 91 64 652^ FACTORY AND WORKSHOP ACT, 1901. Form of Record. Form for Recordiny the Readings of the Thermometers. Name of Occupier Address of Factory c Number or Designation Process carried on Number of Operatives Cubic contents cubic feet. Eoom Date. Readings of Thermometers in Degrees Fahrenheit. Year Month and Day. 1 2 3 4 5 6 7 8 9 10 11 \'l 13 14 15 IG 17 1« 19 20 21 22 23 24 25 26 27 28 29 30 31 Between 7 and 8 a.m. Dry Bulb. Wet Bulb. Between 10 and 11 a.m. Dry Bulb. Wet Bulb. Between 3 and 4 p.m. Dry Bulb. Wet Bulb. If no Artificial Humidity is produced in the 24 hours, insert in this column "None." (Signed) Occupier or Manager. This form is new. See sect. 92, aupra. FACTORY AND WORKSHOP ACT, 1901. 553 FIFTH SCHEDULE. Fees of CEETiFYiNa Surgeons. Part I, Section 124. Fees on Examination for Certificates of Fitness for Employment. ' 2s. Qd. for each visit, and M. for each person after the first five When the examination is at the factory, or workshop. When the examination is not at the ' factory or workshop, but at the resi- dence of the surgeon, or at some place appointed by the sui-geon for the purpose, and that place as well as the day and hoiu" appointed for the purpose has been published in the prescribed manner. examined at that visit ; and also if the factory or workshop is more than one mile from the surgeon's residence, Qd. for each complete half mile over and above the mile. > 6c/. for each person examined. Part II. Fees on Examination by Direction of Secretary of State or in Pursuance of Eegidations under this Act. When the number of hands is under 10 „ 20 - „ 30 - 50 75 „ 100 - ,, over 100 With the addition of Is. for every mile or part of a mile in excess of one mile from the sui-geon's residence. 2s. Qd. pel • visit 3s. 3s. 6d. 45. 4s. 6d. OS. 7s. 6d. SIXTH SCHEDULE. List of Factories and Workshops. Part I. Non-Textile Factories. Sections 54, 149, 156. (1) " Print works," that is to say, any premises in which any persons are " Print employed to print figures, patterns, or designs upon any cotton, linen, '^orks." woollen, worsted, or silken yarn, or upon any woven or felted fabric not being paper ; 554 FACTORY AND WORKSHOP ACT, 1901. " Bleaching and dyeing' works." "Earthen- ware works. " Lucifer - match works." " Percussion - cap works." " Cartridge works." " Paper - staining works." *' Fustian - cutting works." " Blast furnaces." " Copper mills." " Iron mills. ■ Foundries. ' ' Metal and india-rubber works." " Paper mills." " Glass works." ('_>) " Bloachin? aud dyoinj? works," that is to say, any premises in which the processes of bleaching, bootling, dyeing, calendaring, finishing, hooking, lapping, and making np and packing any yarn or cloth of any material, or the dressing or finishing of lace, or any one or more of such processes, or any process incidental thereto, are or is carried on ; (3) " Earthenware works," that is to say, any place in which persons work for hire in making or assisting in making, finishing, or assisting in finishing, earthenware or china of any description, except bricks and tiles not being ornamental tiles ; (4) "Lucifer-match works," that is to say, any place in which persons work for hire in making lucifer matches, or in mixing the chemical materials for making them, or in any process incidental to making lucifer matches, except the cutting of the wood ; (5) " Percussion-cap works," that is to say, any place in which persons work for hire in making percussion caps, or in mixing or storing the chemical materials for making them, or in any process incidental to making percussion caps ; (6) "Cartridge works," that is to say, any place in which persons work for hire in making cartridges, or in any process incidental to making cartridges, except the manufacture of the paper or other material that is used in making the cases of the cartridges ; (7) "Paper-staining works," that is to say, any place in which persons work for hire in printing a pattern in colours upon sheets of paper, either by blocks applied by hand, or by rollers worked by steam, water, or other mechanical power ; (8) " Fustian-cutting works," that is to say, any place in which persons work for hire in fustian cutting ; (9) " Blast fm-naces," that is to say, any blast furnace or other furnace or premises in or on which the process of smelting or otherwise obtaining any metal from the ores is carried on ; (10) " Copper mills" ; (11) " Ii-on mills," that is to say, any mill, forge, or other premises, in or on which any process is carried on for converting iron into malleable ii'ou, steel, or tin plate, or for otherwise making or converting steel ; ' (12) "Foundries," that is to say, iron foundries, copper foundries, brass foundries, and other premises or places in which the process of founding or casting any metal is can-ied on ; except any premises or places in which such process is carried on by not more than five persons and as subsidiary to the repair or completion of some other work ; (13) " Metal and india-mbber works," that is to say, any premises in which steam, water, or other mechanical power is used for moving machinery employed in the manufacture of machinery, or in the manufacture of any article of metal not being machinery, or in the manufacture of india-rubber or gutta-percha, or of articles mack; wholly or partially of india-rubber or gutta-percha ; (14) " Paper mills," that is to say, any premises in which the manufacture of paper is carried on ; (15) " Glass works," that is to say, any premises in which the manutactui-e of glass is carried on ; FACTORY AND WORKSHOP ACT, 1901. 555 (16) " Tobacco factories," that is to say, any premises in which the manu- "Tobacco facture of tobacco is carried ou ; factories." (17) " Letter-press printing works," that is to say, any premises in which "Letter-press the process of letter-press printing is carried on ; works." (18) "Bookbinding works," that is to say, any premises in which the ..Bookbind- process of bookbinding is carried on ; ing works." (19) " Flax scutch mills " ; " Flax scutch (20) " Electrical stations," that is to say, any premises or that part of any ^^' «• promises in which electrical energy is generated or transformed for the gt^^jona.. pvirpose of supply by way of trade, or for the lightiog of any street, public place, or public "building, or of any hotel, or of any railway, mine, or other industrial undertaking. Paragraph (20) is new. Part 11. Nun-Textile Factories and Workshops. (21) " Hat works," that is to say, any premises in which the manufacture " Hat of hats or any process incidental to their manufactui-e is carried on ; ^'^r s. (22) " Rope works," that is to say, any premises being a ropery, ropewalk, " Rope^ or rope work, in which is carried on the laying or twisting or other process ^^°^ '*• of preparing or finishing the lines, twines, cords, or ropes, and in which machinery moved by steam, water, or other mechanical power is not used for drawing or spinning the fibres of flax, hemp, jute, or tow, and which has no internal communication with any buildings or premises joining or forming part of a textile factory, except such communication as is necessary for the transmission of power ; (23) " Bakehouses," that is to say, any places in which are baked bread, "Bake-^ biscuits, or confectionery from the baking or selling of which a profit is houses, derived ; (24) " Lace warehouses," that is to say, any premises, room, or place not "Lace ware- included in bleaching and dyeing works as herein-before defined, in which houses, persons are employed upon any manufacturing process or handicraft in relation to lace, subsequent to the making of lace upon a lace machine moved by steam, water, or other mechanical power ; (25) "Shipbuilding yards," that is to say, any premises in which any «shipbuild- ships, boats, or vessels used in navigation, are made, finished, or repaired ; ma: yards." (26) "Quarries," that is to say, any place not being a mine, in which "Quarries." persons work in getting slate, stone, coprolites or other minerals ; (27) "Pit-banks," that is to say, anyplace above ground adjacent to a "Pit-banks." shaft of a mine, in which place the employment of women is not regulated by the Coal Mines Regulation Act, 1887, or the MetaUiferous Mines Regula- 50 & 51 Vict, tion Act, 1872. whether such place does or does not form part of the mine ^- 58. -.1 • XI • £ ii, A 4- 35 & 36 Vict, within the meaning oi those Acts. ^ ^^ (28) Dry cleaning, carpet beating, and bottle washing works. Paragraph (28) is new. (29) Laundries carried on by way of trade or for the purpose of gain, or carried on as ancillary to another business or incidentally to the purposes of any public institntii^n ( /\ {J) Added by Factory and Workshop Act, 1907, s. 1. 566 FACTORY AND WORKSHOP ACT, 1901. SEVENTH SCHEDULE. Section 161. Part I. Enactments repealed as from the Commencement of this Act. Se»8ion and Ch apt fir. 41 & 42 Vict, c. IG. 46 & 47 Vict. c. 53. 52 & 53 Vict, c. 62. 54 & 55 Vict, c. 75. 58 & 59 Vict, c. 37. 60 & 61 Vict, c. 58. 63 & 64 Vict. Title of Act. The Factory and Workshop Act, 1878. The Factory and Workshop Act, 1883. The Cotton Cloth Factories Act, 1889. The Factory and Workshop Act, 1891. Th(! Factory and Workshop Act, 1895. The Cotton Cloth Factories Act, 1897. The Railway Employment (Prevention of Accidents] Act, 1900. Extent of Repeal. The whole Act. The whole Act. The whole Act. The whole Act except sections eif Act. longer period than seventy-four hours, including meal times, in any one ^^^",''*' °' ° ^ •' ' o 'J employment ^®*^'^- in shops. (2) No young person (o) shall, to the knowledge of his employer, be employed in or about a shop (a) having been previously on the same day emjiloyed in any factory or workshop, as defined by the Factory and Work- shop Act, 1878 (6), for the number of hours permitted by the said Act (c), or for a longer period than will, together with the time during which ho has been so previously employed, complete such number of hours. Sub-sect. (1). A newsagent, occupying a shop for the purposes of his business, employed a boy whose work was done partly inside the shtip, and partly away from the shop in fetching newspapers and delivering them to the customers. — Held, that the whole employment was " in or abont^' the shop within the meaning of this Act : CoUman v. Roberts, [1896] 1 Q. B. 457. 4. In every shop ((/) in which a young person (a) is employed, a notice Notice of shall be kept exhibited by the employer in a conspicuous place referring to '^?"^''^ ^° he the provisions of this Act, and stating the number of hours in the week ^ during which a young person may lawfully be employed in that shop. Failure to exhibit this notice incurs a penalty not exceeding forty shillings ; see sect. 1 of the Shop Hours Act, 1895, infra, which was passed tn override the decision in Hammond v. Pnhford, [1895] 1 Q. B. 223. A boy under eighteen years of age was employed by a firm of newsagents at their bookstall at Redhill railway station, in which the required notice was exhibited. From 6.30 a.m. to 10.15 a.m. the boy's duties took him to Merstham station, two miles off, where he dehvered newspajjers in the district and sold news- papers at the station from a temporary stall composed of a board laid across two trestles, whereon no notice under this Act was affixed. — Held, (1) that the tempo- rary stall was not a "' shop " within sects. 4 and 9 of this Act, and (2) that the boy was "employed" at Redhill station: TV. H. Smith ^- Son v. Kyle, [19021 1 K. B. 286. 5. Where any young person is employed in or about a shop contrary to Fine for the pro\'isious of this Act, the employer shall be liable to a fine not exceeding "aploying cue pound for each person so employed. co t • "^ See the first note on sect. 4, supra. ^'^^ -^''** 6. Where the employer of any young person is charged with an offence Power of against this Act, ho shall be entitled upon information duly laid bj' him to o^'cupier to exempt him- («) Defined in sect. 9. p. 537, nupra. [b) Now Factory and Workshop Act, (c) See sects. 23 — 67 of 1 Edw. 7, 1901 (1 Edw. 7, c. 22) ; e.ee sect. 149, at c 22, at p. 481, supra. 558 SHOP HOURS ACT, 1892. self from fine, on conviction of actual offender. Snmmarj' proceedings. Appointment of inspectors. have any other person -whom lie charges as the actual offender brought before the court at the time appointed for hearing the charge ; and if, after the commission of the offence has been proved, the said employer proves to the satisfaction of the court that he has used due diligence to enforce the execution of the Act, and that the said other person has committed the offence in question without his knowledge, consent, or connivance, the said other person shall be summarily convicted of such offence, and the occupier shall be exempt from any fine. 7. All offences under this Act shall be prosecuted, and all fines under this Act shall be recovered, in Kke manner as offences and fines are prosecuted and recovered under the Factory and Workshop Act, 1878, and sections eighty-eight, eighty -nine, ninety and ninety -one of the said Act, and so much of section niuetj— two thereof as relates to evidence resjjecting the ago of any person, and the provisions of the said Act relating to Scotland and Iielund, so far as those provisions are applicable, shall have effect as if re-enacted in this Act and in terms made applicable thereto. See now sects. 144 — 147, and sects, l^i) and 160 of 1 Edw. 7, c. 22, supra. 8. The council of any county or borough, and in the city of London the common council, may appoint such inspectors as they may think necessarj' for the execution of this Act within the areas of their respective jurisdictions, and sections sixty-eight and seventy of the Factory and Workshop Act, 1878, shall apply in the case of any such inspector as if he were appointed under that Act, and as if the exjjrossion workshop as used in those sections included any shop within the meaning of this Act. The powers conferred by this section may be exercised in Ireland by the council of any municipal borough and by the commissioners of any town or township. See now sects. 119 and 121 of 1 Edw. 7, c. 22, supra. As to salaries and expenses, see sect 2 of Shop Hours Act, 1893, hifra. As to Scotland, see sect, 'i of the last-mentioned Act. Interpreta- tion. Exemption of members of the same 9. In this Act, unless the context otherwise requires — " Shop" means retail and wholesale shops, markets, stalls and warehouses in which assistants are employed for hire, and includes licensed public- houses and refreshment houses of any kind : " Young person " means a person under the age of eighteen years : Other words and expressions have the same meanings respectively as in the Factory and Workshop Act, 1878 {d). " Shop " : see note on Smith v. Ki/le, under sect. 4, supra. A buildinuf which is used solely as a hotel and restaurant for the accommodation of fruests, and wliicli has no bar or counter fur tlie sale of iutoxicatiufj liquors, and is not in the ordinary sense of the term a public-hou.se, but which is licensed as an inn under 9 Geo. 4, c. 61, for the sale of intoxicating liquors by retail, is a " shop " within the meaning of this Act : iSawtj IIoUl Co. v. London County Council, [1900] 1 Q. B. 665. 10. Nothing in this Act shall apply to a shop when the only persons employed are members of the same family dwelling in the building of which {d) See now sect. 156 of 1 Edw. 7, c. 22, supra. SHOP HOURS ACT, 1893. ^^^ the shop forms part, or to which the shop is attached, or to members of the family and employer's family so dwelling, or to any person wholly employed as a servants, domestic servant. A page-boy in a hotel, who sleeps on the premises, and who is principally employed as a messenger, but partly also in assisting to dust the reception -rooms, is not within the exemption in this section in favour of " any person wliolly em- ployed as a domestic servant " : Savoy Hotel Co. v. London County Council, ubi supra. AN ACT TO AMEND THE SHOP HOUES ACT, 1892 (56 & 57 Vict. c. 67) (1893). 1. This Act may be cited as the Shop Hours Act, 1893, and this Act and Short title, the Shop Hours Act, 1S92, may be cited together as the Shop Hours Acts, 1892 and 1893. 2._(1) Any salaries payable or other expenses incurred by the council Salaries and of a county or a borough for the purposes of the Shop Hours Act, 1892, shall expenses. be defrayed by the council of a county out of the county fund, and by the council of a borough out of the borough fund or borough rate. (2) In Ireland such salaries and expenses shall be defrayed, if payable or incurred by the council of a municipal borough out of the borough fund or borough rate, and, if payable or incurred by the commissioners of a town or township, out of any rate leviable by them as such commissioners throughout the whole of their district. 3. In the application to Scotland of the Shop Hours Act, 1892, and of this Definitions. Act,— The expression "council of a county or a borough" means the county council of a county, and the commissioners of police of burghs in which there are such commissioners, and, in burghs in which there are no such commissioners, the town council. The expressions "county fund" shall mean the general purposes rate, and "borough fund or borough rate" shall mean in burghs in which there are commissioners of police, the police assessment, or in their option the public health assessment ; and in burghs in which there are no such commissioners, any assessment levied by the town council. SHOP HOUES ACT, 1895 (58 Vict. c. 5). An Act to amend the Shop Hoars Act, 1892. 1. If any employer fails to keep exhibited the notice required by section Penalty on four of the Shop Hours Act, 1892, in manner required by that section, he failure to shall be liable to a fine not exceeding forty shillings. sT'&'/g Vict. See note on sect. 4 of the Shop Hours Act, 1892, supra. c. 62, s. -1. 2. This Act may be cited as the Shop Hours Act, 1895, and shall be short title construed as part of the Shop Hours Act, 1892, and the Shop Hours Acts, and con- 1892 and 189:5. and this Act may be cited coUeetiA-ely as the Shop Hours ^ ""^ " ' Acts, 1892 to 1895. 560 SHOP HOURS ACT, 1904. Seats to be provided iu shops, &c. Penalty. Commence- ment of Act. Construction and short title. SEATS FOE SHOP ASSISTANTS ACT, 1899 (62 & 63 Vict. c. 21). 1. In all rooms of a shop (e), or other premises whore p:oods are actually retailed to the public, and where female assistants are employed for the retailing: of jroods to the public, the employer carryinj^ on business in such premises shall provide seats behind the counter, or in such other position as may be suitable for the purpose, and such scats shall be in the proportion of not less than one seat to every three female assistants employed in each room. 2. Any person failing to comply with the provisions of this Act shall be liable, on summary conviction, for a first offence to a fine not exceeding three pounds, and for a second or subsequent offence to a fine not less than one pound and not exceeding five pounds. See sect. 7 of Shop Hours' Act, 1892, supra, and the note there. 3. [Act to come into force January 1, 1900.] 4. This Act shall be read and construed as one with the Shop Hours Acts, 1892 to l(S9o, and may be cited separately as the Seats for Shop Assistants Act, 1899. See sect. 10 of the Shop Hours Act, 1904, infra. Closinc order. Contents and effect of order. SHOP HOUES ACT, 1904 (4 Edw. 7, c. 31). An Act to jprovide for the Early Closing of Shops. 1. An order (in this Act referred to as " a closing order ") made by a local authority (/), and confirmed by the central authority, in manner provided by this Act, may fix the hours on the several days of the week {g) at which, either throughout the area of the local authority or in any specified part thereof, all shops (/) or shops of any specified class are to be closed for serving customers. An order closing all classes of shops of a particular trade for part of one day in the week is not nltra vires: Att.-Gcn. \. Mayor, ^-c. of Briahton, (C. A.) Times Newspaper, May 22, 1907. 2. — (1) The hour fixed by a closing order (in this Act referred to as " the closing hour") .shall not be earlier than seven o'clock in the evening on any day of the week, except that on one specified day in the week it may be an hour not earlier than one o'clock in the afternoon. (2) A closing order may prohibit, either absolutely or subject to such exemptions and conditions as may be contained in the order, the carrying on of any retail trade after the closing hour in any place, not being a shop, within the area to which the order applies, for the carrying on of which it would be unlawful to keep a shop open after that hour. (3) The order may — (a) define the shops and trades to which the order applies ; and [e) Defined in sect. 9 of Shop Hours Act, 1892. (/) Defined in sect. 8, infra. (ff) Having regard to the provisions of the Sunday Observance Act, 1677, Sunday, it is submitted, does not come wiihin this Act. SHOP TTOTTRS ACT. 1904. '5^1 (b) authorise sales after the closing hour in casns of omergcncy and in such other circumstances as may bo specified or indicated in the order; and (c) contain any incidental, supplemental, or consequential provisions which may appear necessary or proper. (4) Nothing in a closing order shall apply to any fair lawfully held or a bazaar for charitable purposes, nor to any shop whore the only trade or business carried on is one or more of the trades or businesses mentioned in the Schedule to this Act. (5) ^Hiero several trades and businesses are carried on in the same shop and any of those trades or businesses are of such a nature that if they were the only trades or businesses carried on in the shop the closing order would not apply to the shop, the shop may be kept open after the closing hour for the purposes of those trades and businesses alone, but on such terms and under such conditions as may be specified in the order : Provided that the terms and conditions as respects post office business shall be subject to the approval of the Postmaster-General. 3. — (1) "Whenever a local authority (/O are satisfied that a prima facie Procedure case is made out for making a closing order, the authority shall give public '"'! making notice in the prescribed ()') manner and in the prescribed (?") form of their intention to make an order, specifying therein a period (not being less than the prescribed period) within which objections may be made to the making of the proposed order, and. if after taking into consideration any objections they may have received the local authority are .satisfied that it is expedient to make the order and that the occupiers of at least two-thirds in number of the shops to be affected by the order approve the order, they may make the order. (2) Notice of the provisions of the order shall be given, and copies thereof shall be supplied in the prescribed manner, and the order shall be submitted to the central authority (//), and the central authority shall consider any objections to the order, and may either disallow the order or confirm the order with or without amendment. Quare, whether the Hi^h Court can entertain objections to an order made under this section: Att.-Geii. x. Mai/or of Brighton : see sect. 1, supra. (3) As soon as the central authority have confirmed any order, the order shall become final and have the effect of an Act of Parliament : Provided that every closing order shall be laid before each House of Parliament as soon as may be after it is confirmed, and, if an address is presented to His Majesty by either House within the next subsequent forty days on which that House has sat after any such order is laid before it praying that the order may be cancelled, His Majesty in Council may annul the order, and any order so annulled shall thenceforth become void and of no effect, but without prejudice to any proceedings which may in the mean- time have been taken under the order and without prej udice to the power of making any new closing order. 4. The central authority (//) may at any time on the application of the Revocation local authority revoke a closing order either absolutely or so far as it affects °^ order. [h] Defined in sect. 8, infra, («) See sect. 7 (a), infra. M, O O 562 SHOP HOURS ACT, 1904. Penalties for offences. any particular class of shops, and, if at any time it is made to appear to the satisfaction of the local authoritj' that the occupiers of a majority of any class ot shops to which a closing oi-der ujijjlies arc opposed to the continu- ance of the order, the local authority shall a])ply to the central authority to revoke the order in so far as it affects that class of shops, b\it any such revocation shall be without prejudice to the making of any new closing order. 5. If any person contravenes the provisions of a closing order ho shall be liable, on conviction under the Summary Jurisdiction Acts, to a fine not exceeding in the case of a first offence (me pound, in the case of a second offence five pounds, and in the case of a third or subsequent offence twenty pounds : Provided that nothing in this Act or in any order shall render a person liable to any penalty for serving after the closing hour any customer who was in the shop before the closing hour. No appeal from a conviction to quarter sessions is given, but there is of course the right for either party to take a case to the High Court on a point of hiw under the Summary Jurisdiction Act, 1857. Local 6. The central authority (?') may for the purposes of any of their powers inquiries. jj^-j^i duties under this Act cause a local inquiry to be held, and the costs incuiTcd in relation to any such inquiry, including the salary of any officer engaged in the inquiry, not exceeding three guineas a daj% shall be paid by the local authority concerned, and the central autliority may certify the amount of the costs incurred. Any sums so certified shall bo a debt to the Crown from the local authority. Regulations. 7. The central authority may make regulations — (a) for prescribing anything which under this Act is to be prescribed ; and (b) as to the mode of ascertaining the opinion of occupiers of shops ; and (c) as to conduct of local inquiries and matters incidental thereto ; and (d) as to the procedure for obtaining the revocation of a closing order ; and (e) generally for carrying into effect the provisions of this Act. The Secretary of State has made a set of regidations xinder this section, dated February 13, 1905: St. R. & O. 1905, No. 96. Definitions. 8. — (1) In this Act the expression "local authority " in London outside the city means a metropolitan borough council, and elsewhere means the council of an urban district with a population according to the census of one thousand nine hundred and one of over twenty thousand, and any council or other authority having power to appoint inspectors under the Shop Hours Acts, 1892 to 1895, and the provisions of those Acts relating to offences and proceedings, the ap})ointment, powers and salaries of insjiectors, and the expenses of local authorities, shall apply as if they were herein re-enacted and in terms made api^licable to this Act, and as if references to the occupier of a shop were substituted for references to the employer of a young person. (t) Defined in sect 8, infra. SHOP HOURS ACT, 1904. OG^J (2) Any expenses incurred by a metropolitan borough council under this Act shall be defrayed as part of the (expenses of the council, and the expenses of an urban district council shall be dc^frayed as part of the general expenses incurred in the execution of the Public Health Acts (/•). (3) In this Act, unless the context otherwise requires — The expression "shop" includes any premises or place where retail trade (including the business of a barber) is can-it-d on : The expression "central authority " means in England a Secretary of State, in Scotland the Secretary for Scotland, and in Ireland the Lord Lieutenant. A "barber" would seem to have been expressly mentioned, because of the decision in Palmer v. Suow, [1900] 1 Q. B. 7'2o, regarding that occupation in respect of the Sunday Observance Ace, 1677. 9. A\Tiere an order under this Act is in force in any metropolitan boroiigh Power of or urban district, the council of the county in which the borough or distiiot is county conn- situate may delegate to the council of the borough or district, either with or ^ ! **^ . , *'ate nowers without any restrictions or conditions as they think fit, their powers under under the the Shop Hours Acts, 1892 to 1895. Shop Hours 10. This Act may be cited as the Shop Hours Act, 1904, and the Shop fg^g^ ^''^^ *° Hours Acts, 1892 to 1895, and the Seats for Shop Assistants Act, 1899, and short title this Act, may be cited together as the Shops Regulation Acts, 1892 to 1904. SCHEDULE. Section 2. Post OfiBce business. The sale of medicines and medical and surgical appliances. The sale by retail of intoxicating liquors for consumption on or off the premises. The sale of refreshments for consumption on the premises. The sale of tobacco and other smokers' requisites. The sale of newspapers. The business carried on at a railway bookstall or at a railway refreshment room. SHOP CLUBS ACT, 1902 (2 Edw. 7, c. 21). An Ad to prohibit compnlsory Membership of Unregistered Shop Clubs or Thrift Funds, and to regulate such as are duly registered. 1. It shall be an offence under this Act if an employer shall make it a Membership condition of employment — o^ friendly society. &c. (a) That any workman (/) shall discontinue his membership of any friendly not to" be society ; or condition of employment. {k) See Public Health Act, 1875, s. 209. (I) Not defined. o ::^ 564 SHOP CLU15S ACT, \90\>. Employer not to requife workman to join shop club, iV'c. 59 .t GO Vict, c. 25. Regulations roiuilty. Exemption of railways. Compensa- tion to workman ceasinj^ to be member of shop club. Definitions. (b) That any workman shall not become a member of any friendly society other than the shop club or thrift funtl. 2. It shall bo an offence under this Act if an employer shall make it a condition of emijlojauent that any workman shall join a shop club or thrift fund, unless the shop club or thrift fund is registered under the Friendly Societies Act, 189G, subject to the provisions of this Act, and certified under this Act by the Eegistrar of Friendly Societies. No shop club or thrift fund shall be so certified unless the Registrar of Friendly Societies is satisfied— (a) That the shop club or thrift fund is one that affords to the workman benefits of a substantial kind in the form of contributions or benefits at the cost of the employer in addition to those provided by the contributions of the workman. (b) That the shop club or thrift fund is of a permanent character, and is not a society that annually or jieriodically divides its funds, and that no member of such shop club or thrift fvmd shall, except in accord- ance with the provisions of section six of this Act, be required to cease his membership in such shop club or thrift fund upon leaving the firm with which such club or fund is connected. Before so certifying any shop club or thrift fund, the Registrar shall take steps to ascertain the views of the workmen, and shall be satisfied that at least seventy-five per cent, of the workmen desire the establishment of such shop club or thrift fund, and further shall consider any objections that they may make to the certification. 3. The regulations containi'd iii the SclKnlule of this Act shall apjjly to any shop club or thrift fund certified under this Act. 4. Every person who commits an offence within the moaning of this Act shall be liable on summary conviction to a fine not exceeding five pounds, and, in the case of a second or subsequent conviction within one year of a previous conviction, to a fine not exceeding twenty pounds : Provided that, whore an offence is committed in respect of several persons at the same time, the offender shall not be convicted of more than one offence. 5. Nothing in this Act shall jjroliibit compulsory membi'rship of any superannuation fund, insurance, or other society, already existing for the benefit of the persons employed by any railway company, to the funds of which such com2:)any contributes. 6. In any case where a workman, by the conditions of his emjjloyment, is a mimiber of a shop club, he shall, upon his dismissal from, or upon leaving, his employment, unless contrary to the rules of the club, have the option of remaining a member or of having returned to him the amount of his share of the funds of the club, to be ascertained by actuarial calculation : Provided that every such member who shall exercise the option to remain a member of the club shall not, so long as he remains out of such employment, be entitled to take any part in the management of the club, or to vote in respect thereof. 7. In this Act — The tenn "friendly society" means a friendly society registered under the Friendly Societies Act, 1896, and includes a registered branch, and SHOP CLUBS ACT, 1902. '^^^ in application to Scotland and Ireland the word " registrar " means the registrar as defined in that Act : The expression "shop club" or " tluift fund" moans every clul) and society for providing benefits to wcjrkmen in connection with a w(nk- shop, factory, dock, shop, or warehouse. 8. This Act shall come into operation on the first day of January one Date of Act. thousand nine hundred and three. 9. This Act may be cited as the Shop Clubs Act, 1902. SCHEDULE. Regulations as to Certification under this Act. The rules of a shop club or thrift fund (herein-after termed " the society ") Section 3. shall provide for the following matters : — (i) The name and place of office of the society. (ii) The whole of the objects for which the society is to be established, the purposes for which the funds thereof shall be applicable, the terms of admission of members, the conditions under which any member may become entitled to any benefit assured thereby, and the fines and forfeitures to be imposed on any member, and the consequences of non-payment of any subscription or fine. (iii) The mode of holding meetings and right of voting, and the manner of making, altering, and rescinding rules. (iv) The appointment and removal of a committee of management (by whatever name), of a treasurer and other officers, and of trustees. (v) The investment of the funds, the keeping of the accounts, and the audit of the same once a year at least. (vi) Annual returns to the registrar of the receipts, funds, effects, and exi)enditure, and numbers of members of the society. (vii) The inspection of the books of the society by every person having an interest in the funds of the society, (viii) The manner in which disputes shall be settled. (ix) The keeping separate accounts of all moneys received or paid on account of every particular fund or benefit assured for which a separate table of contributions payable shall have been adopted, and the keeping separate account of the expenses of management, and of all contributions on account thereof, (x) A valuation once at least in every five years of the assets and liabilities of the society, including the estimated risks and contributions. (xi) The volujitary dissolution of the society by consent of not less than five-sixths in value of the persons contributing to the funds of the society, and of every person for the time being entitled to any benefit from the funds of the society, rmless his claim be first satisfied or adeciuately provided for. This was a privute bill. See the remarks of Sir Edward Brabrook, late Chief Registrar of Friendly Societies, ou its provisions in Cliitty's Statutes (Annual), 1902, p. 152. 566 RAILWAY l-MI'LOYMKNT (PREVENTION OF ACCIDENTS) ACT, 1900. Power to make rules as to dangerous railway operations. Tin: K'AILWAY EMPLOYMENT (PREVENTION OF ACCI- DENTS) ACT, 1900 (63 & 64 Vict. c. 27). An Act for the better Prevention of Accidents on RaiJivays. 1.— (1) Tlie Board of Trade may, subject to the provisions of this Act, make such rules as they thiuk fit with respect to any of the subjects men- tioned in the schedule to this Act, with the object of reducing or removing the dangers and risks incidental to railway service. (2) Where the Board of Trade consider that avoidable danger to persons employed on any railway arises from any operation of railway service (not being a matter in respect to which rules may be made under the foregoing provisions of the section), whether that danger arises from anything done or omitted to be done by the railway company or any of its officei's or servants, or from any want of proper appliances or plant, they may, subject to the provisions of this Act, after communicating with the railway company, and giving them a reasonable opportunity of reducing or removing the danger or risk, make rules for that jnirposo. (3) The Board of Trade may, by any rules made undiu' this sc^ction, r(!quiro amongst other matters the use of any plant or appliance which has been shown to the satisfaction of the Board of Trade to bo calculated to reduce danger to persons employed on a railway, (u- the disuse of any plant or appliance which has been similarly shown to involve such danger. (4) The Board of Trade shall, by any rule made by them under this section, give a reasonable time for carrying out the requirements of the rule. The Board of Trade has made rules luider this section. See St. E,. & O. Rev. 1904, Vol. XI., " Railway." p. 9 (19U2, No. 61G). Sects. 2 — 10 inclusive deal with the procedure to be followed in making the rules and hearing objections to them, or applications to rescind or vary them. Penalties. !!• — (1) If any railway company or other (company or person acts in con- . travention of, or fails to comply with, any rule under this Act, then — (a) the company or person shall be liable for each offence on conviction under the Summary Jurisdiction Acts to a fine not exceeding fifty pounds, or in the case of a continuing offence to a fine not exceeding ten pounds for every day during which the offence continues after conviction ; or (b) on the application of the Board of Trade, compliance with the rule may be enforced by the Railway and C'anal Commissioners as if the rule were an order made by those Commissioners in the exercise of theii' statutory j urisdiction. (2) A summary conviction for an offence under this s(!ction shall be subject to an appeal to a court of quarter sessions in manner provided by the Summary Jurisdiction Acts. Under sect. 12 the Railway and Canal Commissioners are to make rules regulating the consideratiiin by tliein of objectidus to the rules refeiTcd to them under .sects. 3 and 10 by the Board of Trade. Such rules have been made. See St. R. & 0. Rev. 1904, Vol. XI., "Railway," p. 8 (1902, No. "^). RAILWAY I:MPIJ)YMKNT (pKEVKNTION OF ACCIDENTS) ACT, 1900. oG7 13._(1) The powers of the Board of Trade for the inspection of railways InHpection shall include power to inspect any railway for the purpose of ascertaining ^{"^^^"(lenTs. whether there is any ground for proceeding under this Act, or whether there has been any contravention of or default in compliance with any rule made uud(!r this Act. (2) The duty of a railway company to give notice of accidents shall apply to accidents attended with loss of life or personal injury to any person in the employment of the company on any line, or siding having a junction with the railway of the railway company, but not belonging to or in the occupa- tion of any railway company, in like manner as it applies to such accidents when occurring on the railway of the company, and the provisions relating to the notice of such accidents shall have effect accordingly. As to notice of accidents to Board of Trade, see Regulation of Railways Act, 1871, s. 6, and the rules made under that section : St. R. & O. 1906, '• Railway," p. 569 (dated Dec. 21, 190G). (3) This sub- section, which dealt with notice of accidents on lines and sidings used iu ct)nnection with factories, workshops and nuiies, was repealed in part by the Factory and Worksliop Act, 1901 (sect. 161). and wholly by the Notice of Accadents Act, 1906 : see sects. 3 and 7 of the last-named Act, printed at p. 8.59, infra ; and also sects. 19 and 106 of the Factory and Worksliop Act, 1901, supra. 14 empowers the railway conipiiny to issue debenture stock to meet expenses incurred under this Act. 15 deals with inquiries and experiments by the Board of Trade. 16. In this Act — Definition of The expression "railway" means any railway used for the purposes of "railway" public traffic whether passenger, goods, or other traffic, and includes '"'^.jji^^jjy any works of the railway company connected with the railway ; and company." The expression " railway company " includes a company or person working a railway under lease or otherwise. 17. A railway company who are lessees shall not be liable for any breaches of the lease necessarily committed in complying with rules under this Act. 18. No double notices or inspections required. 19. Application to Scotland and Ireland. 20. Tliis Act may bo cited as the Railway Employment (Prevention of Short title. Accidents) Act, 1900. SCHEDULE. (1) Brake levers on both sides of waggons. (2) Labelling waggons. (3) Movement of waggons by propi)ing and tow roping. (4) Steam or other power brakes on engines. (5) Lighting of stations or sidings where shunting operations are frequently carried on after dark. 5G8 RAILWAY I.MPLOYMENT (PREVENTION OF ACCIDENTS) ACT, 1900. (6) Protection of point rods and signal winis, and position of ground lovers working points. (7) Position of offices and cabins near working lines. (8) Marking of fouling points. (9) Construction and protection of gauge glasses. (10) Arrangement of tool boxes and water gauges on engines. (11) Working of trains without brake vans upon running lines beyond the limits of stations. (12) Protection to permanent way men when relaying or repairing per- manent way. 560 CHAPTER XII. TRADE UNIONS. The existing legislation relating to this subject is contained in the Trade Union Act, 1871 (84 & 30 Yiet. c. 81), the Trade Union Act Amendment Act, 1876 (39 & 40 Vict. c. 22), the Trade Union (Provident P\inds) Act, 18!)8 (o'i & 57 Vict. c. 2), the Conspiracy and Protection of Property Act, 1875 (88 & 39 Vict. c. 86) (a), and the Trade Disputes Act, 1906 (6 Edw. 7, c. 47) (b). There are dicfa to the effect that a combination to raise wages, i.e., a strike, is indictable at Common Law, as being a conspiracy in restraint of trade (c). The remarks to that effect made by Crompton, J., in Hilton v. Eckcrdey (d) have been expressly over- ruled by the House of Lords in Mogul Sl('(n//s//ij) Co. v. HcGrcr/or (e), the facts of wliich case were these : The plaintiffs, shipowners, alleged that tliere was a conspiracy on the part of the defendants, wlio were shipowners also, to prevent the plaintiffs getting cargoes for their steamers ; that in pursuance oi this combination the defendants " bribed, coerced and induced " shippers not to ship by the plaintiffs' steamers. Special damage to an individual result- ing from an indictable conspiracy, it was said, gave a right of (rt) For the history of the statute law (d) (1855), 6 E. & B. 47, 53. Tliis on this subject see Stephen's History of opinion, repeated by him in Walsby v. Criminal Law (ed. 18S3J, pp. 208—217. Anley (1861), 3 E. & E. at p. 520, was {b) This Act effects very great changes dissented from by Campbell, C. J., in in the law, which are dealt Avith at p. 606, that case [I.e. at p. 62); and in the infra. Exchequer Chamber (/. c. at p. 75) the (c) Rex V Journrymen Tailors of Cam- Court expres.sly reserved their opinion bridge {\1'1\), ^ Mod. 10, ;uct- Cur.; Rex on this point, as did the judges in V. Mawbcy (1796), 6 T. R. 619, per Hornby v. Cloxe (ln67), L. R. 2"^Q. B. Grose, J., at p. 636. The <;?(><« in both 153. And see Rcy. v. Siaines (1870). these cases were unnecessary for the 1 C. C. R. 230, and the judgment of decision, and that in the former case is Lindley, J. (at p. 260), in Sicaine v. not justified by the reference [Starling's Wilson (18891, 24 Q. B. D. 250. Crtsr, 1 Sid. 171: given it; besides, later [e) (1892), A C. 25. per Lord Halsbmy, criticism has discredited them. See at p. 39 ; per Lord Watson, at p. 42 ; Sir W. Erie's Memoranduni on Trade per Lord Bramwell, at p. 46 ; per Lord Unions, p. 41 ; Wright on Criminal Hanneu, at p. 58. The argument that Conspiracy, pp. 52, 53 ; Stephen's Hist. " public policy " is the test of the crimi- Crini. Law (ed. 1883), vol. iii. pp. 219, nality of an agreement was ;iL>o dis- 220, 223. approved of. 570 TRADE UNIONS. action to the person diimaged against the eonspirators ; that this was a conspiracy in restraint of trade, and, as such, was illegal and indictable at Common Law ; and S[)ecial damage had resulted to the plaintiffs. The House of Lords dissented from this argument. An indictable conspiracy must be unlawful as to the end or means employed ; an agreement is not unlawful in this sense because it is in restraint of trade (./"). As to "trade disputes," the Trade Union Act, 1871 {y), has expressly enacted that " the purposes of any trade union shall not, by reason merely that they are in restraint of trade, be deemed to be unlawfid, so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise." " Restraint of trade " is not the test of criminal conspiracy. What, then, is the true test ? A combination with crime for its object or employing crime as its means is a criminal conspiracy {//), whether the crime is a Common Law or a statutory offence {i) ; and the legislature has declared this to be the case in regard to trade disputes (/r) . The books contain many examples of indict- ments and convictions of this character, many of them relating to offences under 6 Gleo. IV. c. 129 (/), and committed by^ workmen on strike. There are also cases of combination against the Grovern- ment and order, public morals and decency (/;/), and cases not reall}' of conspiracy, " where," in Sir William Erie's words, "simultaneity is the essence of the criminality of the act," t'.f/., (/) See the remarks of Hannen, J., the provisions of a statute, for the in Farrer v. Olos-r (1869), L. R. 4 Q. B. breach of which the statute prescribes 602, 613, and in the Mo(jul (Jasc, [1892] only a summary punishment " : Wright A. C, of Lord Watson, at p. 42, and on Conspiracy, p. 27 ; and see pp. 83, Lord Bramvvell, at p. 45. "Contracts, 85, ibid. as they are cJled, in resti-aint of trade u-\ 38 & 39 Vict. c. 86, s. 3. "A are not in my opinion illegal in any crime for the "purpose of this' section " sense except that the law will not enforce (j.^;., of making a combination in fur- them. It does not prohibit tlie making therance of trade disputes indictable) of such contracts: it merely dcchnes, "means an offence punishable on in- after they have been made, to recognise dictment or an offence which is punish- their validity": per Bovven, L. J., in able on summary conviction." MoffiilCase (C. A.), 23 Q. B. D. atp. 619. ^ iff) Sect. 2. See the definition of {/) E.f/., Jt. v. Bi/krrdyke {18S2), IM..& "trade dispute" in sect. 5 of Trade Rob. 179; R. v. ^ff/^ (1834), 6 C. & P. Disputes Act, 1906. •'j(>3 (^^7 G-eo. III. c. 123) ; E. v. Rowlands (/() Reg. v. I'ariiell (1881), 14 Cox, (IS'il), 1" Q. B. 671 ; Walsby \. Anleij C. C. 508. See Wright on Conspiracy, (1861), 3 E. & E. 516 ; O'Xeill v. Long- pp. 26, 27. . iiKiH (1863), 4 B. .fe S. 376 ; O'Neill v. (i) '/). The editor of Roscoe's Evidence in Criminal Cases (o) suggests that the words of Cockburn, C. J., in li. v. Warburton (p) — a case of conspiracy for the purposes of fraud and false pretences, not in themselves criminal — should be confined to " one class of civil wrongs," namely, " civil wrong by fraud and false pretences." But some definitions of criminal conspiracy go far beyond these limits. For example : " A conspiracy consists in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means" (tj) — words which would include all civil wrongs as means or end. It is clear, however, that not every combination of wliicli a civil wrong is the end or means is indictable. The judgment of Lord EUenborough in R. V. T/inwr (/■), Avhere a conspiracy to commit civil tresi:)ass was lield insufficient to support an indictment, indicates the essential element, viz., the interest of the public in the wrong. 8u^ William Erie (.s) says, '' There seems also to be authority for saying that a com- bination to violate a private right, in which the public has a sufficient interest, is a crime, such a violation being an actionable wrong " {t). The ease of Bef/. v. Parnell and others is an instance of such a conspiracy. There the defendants were indicted for a conspiracy to prevent tenants paying their rent {h). ill) Wright on Conspiracy, pp. 10, 11, Mogul Case, 23 Q. B. D. at p. 606; au 37—43, 85 — 88. error which Lord Bramwell corrected ia (o) nth ed. p. 400. tlie House of Lords, [1892] A. C atp 48 {p) (1870), L. R. 1 C. C. R. •274,276. («) (1881), 14Cox, C. C. .508, atp. 513. " It is not necessary in order to constitute See also at p. 518, where Barry J. a conspiracy that the acts agreed to be quotes with approval the second report done should be acts which, if done, of the Trade Unions Commission. 1867. would be criminal. It is enough if the This exposition of the law was followed acts agreed to be done, although not by Palles, C. B. , in Kcanteij v. Lloyd criminal, are wrongful, i e., amount to a (1890), 26 L. R. Ir. 258, who there says civil wrong." (pp. 286, 287), " 1 desire to he distinctly [q] Per Willes. J., in Mukahy v. Rer/. understood as not determining (nor do I (1868), L. R. 3 H. L. 306, 317; Tindal, understand the Lord Justice to have C 3.,\n()'Connell'.s Case{\^\A),\\ Q\. k. determined) that every agreement hi F. 155, 233; Deuman, C. J., in Joius' this third class (i.e., to effect civU wrong) Case (1832), 4 B. & Ad. 345, 349. is indictable." It is clear this could not (r) (1811), 13 East, atp. 231. Lord ^'^ so iu trivial cases, e.,j., of an agree- CampbeU's criticism of this decision in ^^"^t between two persons ''to walk m Re,, y. Rowlands (1851), 17 Q. B. at p. ^,V'"- w ? °''''^f '''' *° dishonour a 686, does not affect it for the present ^^^- ^^^"'^^.^ «" Conspiracy, at p. 66. purpose "^" conspiracies to coerce by means of , , -/ , „,,,.. breach of contract, see Lnmlet/ v. Gm- [s) Memorandum on Trade Inions, (1853), 2 E. & B. at p. 230, ppr Crompton, P- •^2- J. ; R. V. Rowlands (1851), 17 Q. b! [t) This passage was misunderstood 671 ; R. v. liunn (1872), 12 Cox, C. C. by Lord Esher in his judgment in the 316. •572 TKADH UNIONS. lu respect of trade disputes (.r) , the legislature has enacted that " an agreement or combination by two or more persons to do or procure to be done any act in contemplation or in furtherance of a trade dispute bcticecn vmployera and icoyhinvn {//) shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime" (s). The whole of the criminal law relating to strikes, it must now be taken, is contained in 38 & 39 Vict. c. 8G (zz), and the statutes referred to in it ; no agree- ment connected with a trade dispute, not indictable under those Acts, is indictable on any other grounds {a). In a recent case reference was made to the dicfa of Bramwell, J., in Iicfj. v. Bruit t {!)), and of Brett, J., m Rcy. v. Biiint (r), as authorities for the proposition that a person not indictable under these Acts might still be punished in respect of the same Acts for indictable conspiracy at Common Law. Coleridge, C. J., in delivering the judgment of the Court — constituted of five judges — thus dealt with the point : — We are well aware of the great authority of the j udges by whom the above cases were decided, but we are unable to concur in their dicta ; and, speaking with all deference, we think they are not law. It seems to us that to hold that the very same acts which are exjiressly legalised by statute remain, nevertheless, crimes punishable by the Common Law, is conti-aiy to good sense and elementary principle, and that the reports, therefore, cannot be correct. If the dicta are law, they render the statutes passed on these subjects practi- cally inoperative ; these statutes might as well not have been passed. . . . It seems to us that the law concerning combinations in reference to trade disputes is contained in 38 & 39 Vict. c. 86, and in the statutes referred to in it^ and that acts which arc not indictable under that statute av(^ not now, if, indeed, they over wore, indictable at Common Law('f). So far, as to the Criminal Law. In regjird to civil liability, the question is not one of intention {d). The gist of a civil action for conspiracy, as in other civil cases, is the wrongful act causing the (.r) Now defined by sect. 5, sub-sect. made au exception or resolved a doubt (3) of the Trade Disputes Act, 1906. (according to the view taken of what See p. 610, infra. the Common Law was) iu favuur of trade (y) The words in italics are repealed combiuations as distinct from combina- by sect. 6, sub-sect. (3), uf the Trade ti^>r .sr are lawful (/). But a strike may, if it is begun or maintained by unlawful acts, such as violence or threats of violence (;w), intimidation (w), or illegal picketing (0), render the parties to the use of such means (e) Savilev. iJoicr^ ^ itn spii-acv and Protection of Property Act, (A) [1898] A. C. 1, at p. 140. I815/i>,fra. (i) CoWw* V. Xoc/.-6'(l879),4 App. Cas. {0) Req. v. 7?ff«W(1876), 13 Cox. 674 ; Mineral jratcr Society v. Booth Q c. 282 ; Li/ous v. inikiiiK, [1896] I (1887), 36 Ch. D. 465. Ch. 811. But see now as to "picket- [k) Mogul Case, 23 Q. B. D. 598 inj;," sect. 2 of the Trade Disputes (C. A.), per Bowen, L. J., at p. 619; Act, 1906, vide t^. 610, hifra. 574 TRADE UNIONS. liable to an action both by the employer and the persons intimidated. The Courts will restrain such conduct by interim and perpetual injunction (p). The employer will have a cause of action both against those guilty of a breach of contract and those who procure it{q). Some decisions went further. In Tcmperfo)/ v. Riis.sc// (r), conspiring to induce jiersons " not to enter into contracts with the plaintift," with damage resulting therefrom, was held actionable (n), In Allen -v. Flood [t), however, the House of Lords decided that for an individual merel}' to induce persons not to enter into contracts was not an actionable wrong. In view, therefore, of the nature of the action for conspiracy, can the decision in Tempcrfon v. Russell (r) stand ? The House of Lords have, by their decision in Qniiin v. Leathern [u), answered that question affirmatively. In that case it was held that a conspiracy formed with the intention of doing harm to the plaintiff in his trade, with damage resulting to him therefrom, was actionable (.r). Such a conspiracy is prima facie unlawful, though it may be rendered innocent, as in the Mogul Case (//), by the presence of " just cause and excuse." Such " just cause and excuse" depends on the circumstances of such case(z). {p) Trollope v. London Biiildimi Trader Federation, [1895] 72 L. T. N. S. 342 ; publiciition of " black list " was argued ill the first instance as a " trade libel " ; but, so far as can be gathered, Lord Halsbury seems to treat it as a case of " mnlicions interference." Lyoux v. //')//.T».v, [189()] 1 Ch. 811; and [1899] 1 Ch. 2oo; Chaniock v. Court, [1899] 2 Ch. 3/); maters v. Green. [1899] 2 Ch. 696 ; Taff V(ae, %c. v. Amakiuinatrd Son., (f-c, [19U1] A. C. 426. {(/) Boueu V. Jlall (1881), 6 Q. B. D. 333; 3Ioc/ta, i\r. v. McGregor, [1892] 1 Q. B. 25. But see now Trade Disputes Act, 1906, ss. 1 and 3, at p. 610, infra. (r) [1893] 1 Q. B. 715 ; Qumn v. Leathern, [1901] A. C. 495. This latter case, while approving Temperton v. Russell, overrules Lord Esher's remarks as to malicious motive made in that case at p. 728. [s) Apparently upon the authority of Greijory v. Buke of Brunsinck {1^44), 6 M. & G. 853; and see judgment of Lord Maciiaghten in Qidnn v. Lcnthim, [1901] A. C. at pp. 510,511. {t) [1898] A. C. 1. {u) [1901] A. C. 495; Giblav v. Nat. Avial., (5r., [1903] 2 K. B. 6nO. [x) It is submitted tliat this is the true view of that decision. At the trial in Ireland, Fitzgibbou, L. J., never mentioned "coercion" or "intimida- tion" in his summing-up and din ction to the jury, the burden of which is " intent to injure the plaintiff ' ' : LriUhnn v. Craig, [1899] 2 I. K.pp. 1G7, 168. The "conspiracy to injure" (resulting in damage) is the ground of Lord Mac- naghten's and Lord Brampton's judg- ments. Holmes, L. J., whose judgment in the Irisli Court of Appeal," [1S99] 2 I. R. at p. 771, is expressly assented to by Lord Macnaghten, and is adopted by Lord Robertson, expressly negatives {I. c. at p. 776) the unlawfulness of the means employed, and rests his decision entirely on the unlawful object. And sec tlie judgments of Lord Ashbourne, and Walker, L. J. The materiality of the overt acts was that, done in pursu- ance of the unlawful conspiracy, they inflicted damage: see Lord Brampton's judgment, /. c. at p. 530 ; and of Andrews, J., [1899] 2 I. R. at p. 682 ; and Holmes, L. J., ibiff. at p. 776. (//) [1892] A. C. 25. (s) Glamorgan Coal Co. v. Honlh Wales Miners' Federation. [1903] 2 K. B. 545 ; Gihlan v. Nat. Amal. Labourers, ^c.^ [1903] 2 K. B. 600. TKADK UNIONS. The unlawfulness may consist in thf object of the combination or its means of ojtcrution, or both {/i}. It is lawful to hiss an actor {/j), but a combination to liiss him in onlcr to injure him in his profession, which results in his losing engag-ements, is action- able {(•). In Qti'nni v. Lcaflioii (//), the officials of a trade union conspired to injure the plaintiff in his business and so punish him for employing non-union labour ; as a means to this end, they induced the plaintiff's servants not to continue in his service, and the plaintiff's customers not to continue to deal with him. Damage resulted to the i)laintiff. it was held that he had a good cause of action. The object of the conspiracy, not its means of operation, was the main ground of decision [e) ; the judgment of Lord Lindley alone turns upon the " coercive " character of the means adopted. But there is contained in Qn/iiii v. Leathern {d) abundant approval of the proposition that acts, lawful when done by one, may become unlawful when done by many (./'). Mere induce- ment of others by A., with whatever motive, not to make contracts with D., gives D. no cause of action (r/) ; the same inducement by A., B. and C, combining thereby to harm D. in his trade or profession, is actionable if damage result. This was the question expressly left untouched in Allen v. Flood [h). It is not the mere added fact of the conspiracy which makes unhiwful the acts which would not be unlawful if done by only one. It can, in my opinion, be properly held in a case like this to be the altered character which . . . the concerted action impresses on the acts themselves (?'). (a) [1901] A. C. per Lord Brampton, of Tulles, C. B., in that ease, and in his at p. ,5-28; and [18!19] 2 1. R. per dissenting jud^'mont in ZfrtMm v. C'm if? Holmes, L. J., at p. 776. (/. e. at p. 701), is identical, save for the (/;) IHbdin v. Swun (1793), I Esp. 27. material added in the latter case by the {c) Gregory v. The Duke of Brioisirick decision in Alltn v. Flood. The two (18'13), 6 M. & G. 205, 953; 6 Scott, must stand or fall together. There was N. R. 809. in Kearney v. Lloyd, according to the {d) See note («), ante. findings of the jiiry (/. c. at p. 276) in [c) Vide note (.r), supra. answer to (piestions 7. 10, 11 and 12, a (/) [1901] A. C. per Lord Mac- combination forme.l partly with the in- naghten, at p. 5 1 ; per Lord Brampton, tention of injuring the plaintiff in his at p. 530 : per Lord Lindley, at p. 538 : calling, with dama<,'-e resulting to hiin and see [1899] 2 I. R. at p. 676, per in consequence. Suc^h facts, according Andrews, J. ; and the Moyal Case, [1892] to Quiun v. Leatheni, found a good cause A. C. at pp. 38, 45, 60. See the judgmei.t of action. It cannot, since the decision of Phillimore, J., in Boot.s v. Grioid,/ in the last-mentioned case, be held that (19U0), 82 L. T. 769; but .see now Trade an action for conspiracy is not main- Disputes Act, 1906. ss. 1 and 3. tainable unless the end or means of the {ff) Allen V. Flood, [1898] A. C. 1. conspiracy constitute a le>ral injury, {h) [1898] A. C at pp. 122, 153, 169. actionable if committed by a single per- (j) Seethe judgment of Andrews, J., son. The explanation bv Andrews, J., in Leathern v. C'raiy, [1899] 2 L R. at pp. in Leathern v. Cra'.y, [1899] 2 Ir. R. at p! 684, 685. It is difficult to sec how the 681. of his as.seiit to the decisicm in decision in Kearney v. Llnud (1890), 26 Kearney \. /.fcyrf is in respect of its first L. R. Ir. 268, cau stand, The reasoning ground somewhat hard tu reconcile with 576 TRADE UNIONS. It was argued for the appellant that the effect of sect. 8 of the Conspiracy and Protection of Property Act, 1875, was to make a combination sucli as they formed not actionable. But the House of Lords held that that section " had nothing to do with civil remedies" (/). They remained as they were before the statute. The truth was that, as Lindley, L. J., put it in the course of the argument in L//o) is v. IVi/kiiis {/,•), it was impossible to "make a strike effective without doing more than is lawful." The legisla- tion of 1S71 and 1875 had done something towards narrowing the lines of the Criminal Tjaw in relation to trade disputes, but the Civil Law still restrained and visited with damages cases that those statutes were passed to protect (/). What Sir James Stephen wrote of the state of the Criminal Law as to strikes after the passing of G Greo. IV. c. 129, might almost have been written of the law as it stood before the passing of the Trade Disputes Act, 1906, viewed in its civil and criminal sides together : — A bare agreement not to work except upon specified terms was all that the law permitted to workmen. ... It is difficult to see how, in the case of a conflict of interests, it is possible to separate the two objects of benefiting yourself and injiu'ing your antagonist. Every strike is in the nature of an act of war. Gain on one side implies loss on the other, and to say that it is lawful to combine to protect your own interest, but vmlawful to combine to injure your antagonist, is taking away with one hand a right given with the other (?n). But the Trade Disputes Act, 1900 (p. 606, infra), has changed all this. Sect. 1 of that Act renders such an action as Qii/ini v. Leaf Item unnuiintainable, on the ground that the acts there complained of were done in furtherance of a "trade dispute," as by that Act defined, and that there was no act done in that case which would have been actionable apart from combination. Further, sect. 8 of that Act makes mere interference, in furtherance of a " trade dis- the findingH of the jury in that case; at p. o4() ; aud per Lord Bmniptuii, iiu^. aud in respect of its second frround is at p. 5;J1. no exphiuation at all, because there beiujr (/)/. c. per Lord Macnajj-hten, at a conspiracy to injure, followed by p. >,i2; per Lord Lindley, at p. 542; daniaf^e, the lawfuhicKS or unlawfulness ^nd j^ge per Andrews, J.,' in Lmllu-m v. of the means is immaterial. llHtthii v. Cmig, [1899] 2 I. R. at p. 684. Sinunms,_ [1898] 1 Q. B. 181, it is sub- ,,. j-^^^gg-, ^ ^^ ^ .^^ g.^0_ luitted, IS also overruled by (iuinn v. ' \ ... . Leathern. The decision there on the ('^ ^ combmation to ruin an em- points of conspiracy is the same as that pl".ver m the course of a trade- dispute of Palles. C. B., in Leathern v. Crmq, could not. apart from the cummisMon of and similarly is founded on Kenrnry v. specific cnnunal acls, be indictable since Lh>„d and Alhn v. Flood. There was the Conspiracy Act, 1875, s. 3,- but, as not even a question left to the jury in we have seen, it is more than doubtful IliUtkii^ v. tiinimoHx as to the intention whether it is not per se actionable, with which the conspiracy was formed : (»/) Stephen's But. Crmi. Law, vol.iii. fjee per Lord Lindley in Q'lin/' v. tealhem, p. 218 (cd. 1883). TRADE UNIONS. pute," witli a man's right to dispose of his lahour or capital as he wills (ii) not actionable. There are (/icfa wliich show that it was realised that the law of conspiracy as it fornierlv stood must be used sparingly in order that it might not become an engine of oppression (o). It is thought by some that the Trade Disputes Act, 1906, has, in its design of making such oppression impossible, opened the door to another not less pernicious form of tyranny, A trade union is defined, by sect. 16 of the Trade Union Act Amendment Act, 1876, which repeals and replaces the definition in the principal Act, 1871, as follows : — Any combination, whether temporary or permanent, for regulating the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or for imposing restrictive conditions on the conduct of any trade or business, whether such combination would or would not, if the principal Act had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its pui'poses being in restraint of trade. And by sect. 5, sub-sect. (2), of the Trade Disputes Act, 1906, it is provided : In this Act the expression " trade union " has the same meaning as in the Trade Union Acts, 1871 and 1876, and shall include anj' combination as therein defined, notwithstanding that such combination may be the branch of a trade union. Apart from legislation, trade unions are, and always have been, at Common Law as legal as any other voluntary society. They could proceed against their officers for fraud or embezzlement {p). In an action upon a bond given to the plaintiff, as treasiu'er of a friendly society, it was held that the plaintiff might recover, though the society was not registered (under 33 Geo. III. c. 54), as the bond was good at Common Law, and " there was no express provision avoiding securities given to treasurers neglecting to register the rules" (7). An unregistered Friendly Society was, however, only a partnership ; consequently a motion upon a bill by some members of such society, that the trustees should pay into {») This was very largely the ground Q. B. 602, where Cockburn, L. J., of Lord Brampton's decision in Quinnv. notices the former decision (at p. 608), Leathern, L c. at pp. 525 — 527. the principle of which was that the (o) Per Bowen, L. J., in the Mogul society in question, being not entitled Case, 23 Q. B. D. atp. 616 : "It is neces- to the advantages given by the Friendly sary to be very careful not to press the Society Acts, "in case of any misap- doctrine of illegal conspiracy beyond propriation of its funds, must be left to that which is necessary for the protec- its legal remedies." tion of individuals or of the public." ^^ j^^^^^ ^_ ^^^^^^^^^^ ^^^.,.y^ 5 g ^ {p) H(jf»hi/ V. C/ut«' (Ib6/), 2 Q. B. Alrl 7fiQ 153; Farrer V. Close (1867), L. R. 4 ^''^- '°''' M. p r 077 578 TRADE UNIONS. the bank certain sums of money divided among the members, was refused ; tlie society being only a ])artnersliip, the plaintiffs must bring in the members wlio had received the shares of the division {>•). The main objects of the Trade Union Act, 1871, may be summarised as follows : — (1) To enunciate the law as to restraint of trade in relation to trade unions generally (-s) ; (2) To make trade unions, on condition of registration (sects. 6 — 13, 18), corporate bodies capable, by representatives, of acquiring, holding, and dealing with, and of suing and being sued, in respect of real{f) and personal property (sects. 7 — 9) ; (3) To regulate the liabilities of trade union officers (sects. 10, 11) and give trade unions rights of summary procedure against officers, members, or other persons for fraud or embezzlement (sect. 12). The general terms of sect. 3 are qualified by sect. 4. The effect of that section is that an action to directly enforce or to recover damages for the breach of any of the agreements which it mentions " cannot be maintained unless it can be maintained independently of sect. 3 " (u). Among the agreements mentioned in sect. 4 is " (3) any agreement for the aj^plication of the funds of a trade union (a) to provide benefits to members." It is only the direct enforcement of any such agreement that is dealt with. When, therefore, some members of a trade union asked for an injunction to restrain other members from paying away money in pursuance of an amalgamation scheme, Fr}^, J. granted it. " An order that the defendants should pay money to the plaintiff would be a direct enforcement of an agreement for the application of the funds, but all that is sought here is to prevent the payment of the money to somebody else. Either that is no enforcement of an agreement at all, or it is an indirect enforcement" (,r). It would (>•) Beaumont v. Meredith (1814), 3 («) Per Lindloy, L. J., in Swa'tnc v. Ves. & B. 180. Wilson (1889), '24 Q. B. D. '252, 259 ; W Tlie provision («ect. 2) as to the J^^ ^f|*^ ^- ^"''''"^ (l^^^'- ^^ ^^- ^• Criminal Law must be taken to be de- ' ^^.^ ,^^,^^ ^. ^i^^,,;,,,,,^. (18^2), 21 claratory oi the Common L.aw : Moqnl ^/ ^-r-. tr,* M^r j • n j n nbn.n An.)- a * o v. j ^h. JJ. 194, 190; approved m Jloirden GaKC, ri892] A. 0. 2o. Sect. 3 changed ■,, / ;■ ir- - < naA.jn i .-, i^ T rni, i ? o V. lorkslnre Miners Assoc, 190.3] 1 the Common Law. i he scope ot sect. 2 y^ -r, .,no u- i. i • • ^a ji , , I • 1 1 ■ , K. B. 308, which decision was aihrnied has been enormously widened m respect , • -x ^ xi, tlt a r ^ » . ., •■ i •> i J.U n • by a raaiority OI the House oi Lords, of strikes by sect. 3 oi the Conspiracy rinn-i \ t^ .>r^ m i- • j- jT>ii.- t T> i. \ 4. lo-K 190o A. (J. 2.56. ihe question is dis- and Protection of Property Act, 18/5. l -j . ... , o ,j ir- / ir- » ^ *' ' cussed m Ster/e v. Sonth Wales Miners^ [t) " Not exceedhig one acre " : sect. 7. Federation, [_Vdi)'t'\ I K. B. 361. Seethe TRADE UNIONS. •'JTO seem that there were in tliat case rules specifically naming the benefits in consideration of which the plaintiffs had paid their subscriptions, because they asked for an injunction on the ground that " an inconsistent application of tlie funds is about to be made by the defendants to some other persons, not according to the rules of the association " (//). If payment in pursuance of an amalgama- tion scheme had been one of the objects of the common fund (into which the subscriptions were paid), the plaintiffs would doubtless have failed. So, too, if payment to men on strike be named as an object of the common fund, (which it almost always is), there would seem to be no way of restraining, by injunction or otherwise, the officers of the society from expending that fund in such payments ; unless the payments are made in breach of the conditions laid down in the rules permitting them (;:) . A special fund, however, expressly set apart for sickness, superannuation, &c., might be protected by injunction (a). An action to restrain a misapplication of funds ultra rires the union may be brought by a single member in his own individual right ; at least, in cases when the trustees are unable or refuse to act (/>). Any attempt at a direct enforcement of a right to benefits in a trade union is useless (e). A trade union is enabled, by sect. 12 of the Act of 1871, to recover by summary proceedings any money that has been improperly applied. The House of Lords decided, in Tajf' Vale Railurt;/ v. Amalga- mated Societ// of Railway Serra)/ts{d), that a trade union may be sued for the torts of its agents under its registered name ; its cases collected in the note on sect. 4, superannuation benefit is paid. In that infra. case it is possible that the whole of that (ij) Ibid. p. 196. fund might be exhausted through the (z) Hoicden v. Yorkshire Miners' Assoc, demands of a big trade dispute." And [1903] 1 K. B. 308 : [1905] A. C. '256. see the remarks of Lord Macuaghten in {a) But su('h ear-marking is rare. the 2'c(/' f'fffc Case, [1903] A. C. atp. 437. See Report of Committee on Old Age (/;) Hoivden v. Yorkshire Miners' Pensions, 1898, evidence of Mr. L. Assoc, [1903] 1 K. B. 308- [19051 Burnett. Q. 2,109: "I think you A. C. 256, per Lord Lindley, at p 280 have already stated that there is a ggg Stevens v. Choivn, [1901] 1 Ch. 894 superannuation fund, and certain sums are invested. Is there any security (<') -^'^^ v. Connol (1880), 14 Ch. D. against that fund being exhausted to 482 ; Duke v. Liitlehoij (1880), 49 meet a strike? " A. : " In the special ^- J- Ch. 802 ; Winder v. Governors and cases in which there is an absolute in- Guardians, circ. (1888), 20 Q. B. D. 412 ; vestment of money for superannuation Crocker v. Kni(jht, [1892] 1 Q. B. 702 ; purposes there is not much danger of Chamberlain'' s JTharf v. Smith, [1900] that. But this is what happens in the "^ d- ^- *^^•^■ majority of cases: there is no invested [d) [1901] A. C. 426. The trustees fund specially set apart for superannua- were added as defendants by the Court tion purposes : there is merely the of Appeal to enable the funds of the general fund of a society from which union to be reached. pp2 580 TRADE UNIONS. liability in this respect being the same as in the case of any other priucii)al and agent (<'). But this decision is now overruled by the Trade Disputes Act, 1906, s. 4, by virtue of wliieh trade unions cannot be sued for tort. Short title. 34 & 35 VICT. c. 31 (1871). An Act to amend the Laiu nlatrng to Trade Uniotis. Preliminarij. 1, This Act may be cited as " The Trade Union Act, 1871." Trade union not criminal. Trade union not unlawful for civil purposes. Trade union contracts, when not enforceable. Criminal Provisions. 2. The purposes of any trade union shall not, by reason merely that they are in restraint of trade, be deemed to be unlawful, so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise. This set a doubtful point at rest : see p. 569, supra. 3. The purposes of any trade union shall not, by reason merelj' that they are in restraint of trade, be unlawful so as to render void or voidable any agreement or trust. Lord Bramwell saw in this section a decisive argument against the contention that combination in restraint of trade, as such, was indictable : Mor/tt! v. McGregor, [1892] A. C. 25, 47. A trade union had passed a resolution for the winding-up of its affairs and the distribution of its assets among its then members. Some of the rules, for the bi't-ach of which certain meuibers had been expelled, were in restraint of trade. Did that fact render the resolution and the rules void so as to entitle the expelled members to a share of the assets? North, J., held it did not: St rick v. Swansea, S;c. (1887), 36 Ch. D 008. A society is not illegal at Connnon Law as being in restraint of trade, merely because some of its rules are so ; particularly if those rules are reasonably required for purposes of management, and are not oppressive to the public : Sicaine v. Wilson (1889), 24 Q. B. D. 252. 4. Nothing in this Act shall enable any Court to entertain any legal pro- ceeding instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements, namely, (1) Any agreement between members of a trade union as such, concerning the conditions on which any members for the time being of such trade (e) Giblan v. National Amahjamated Labourers' Union, %c., [1903] 2 K. B. 600. \v^ I)enahy and Cadeby Main Col- lieries, Ltd.y. Yorkshire Miners^ Assoc, [1906] A.* C. 384, the House of Lords held,' on the construction of the rules of the defendant society, that there was, in view of the facts proved, no evidence of authorisation or ratification by the defendants of any of the acts complained of. TRADE UNIONS. 681 iinion shall or shall not sell their goods, transact business, employ, or bo employed {(() : (2) Any agreement for the payment by any person of any subscription or penalty to a trade union : (3) Any agreement for the application of the funds of a trade union, — (a) To provide benefits to members (fc) ; or, (b) To furnish ccmtributions to any employer or workman not a mcmbtsr of such trade union, in consideration of such employer or workman acting in conformity with the rules or resolutions of such trade union; or, (c) To discharge any fine imposed upon any person by sentence of a court of justice; or, (4) Any agreement made between one trade union and another; or, (5) Any bond to secure the performance of any of the above-mentioned agreements. But nothing in this section shall be deemed to constitute any of the above- mentioned agreements unlawful (c). This section limits sect. 3, and makes it necessary that an action to enforce directly or to recover damages for the breach of any of the agreements it mentions, if it is to lie, should be maintainable at Common Law: Riybi/w. C'owwo^ (1880), 14 Ch. D. 482, 491 ; Siraine v. Wilsox (1889), 24 Q. B. D. 252, 259. The section does not apply where the proceedings are legally taken independently of this Act, e.g., where the society is legal at Common Law {Swaine v. Wilson, I. c. ; see Hornby v. Close (1867), L. R. 2 Q. B. 153 ; and Farrer v. Chse (1869), L. R. 4 Q. B. 602), or where the application is for the distribution of the society's assets in obedience to a winding-up order made by the Court [Strick v. Swansea, ^-c. (1887), 36 Ch. D. 658), even though some of the rules to be given effect to in the distribu- tion are in restraint of trade : ibid. ; see Burke v. Amalgamated Society of Dyers, [1900] 2 K. B. 583. '■'■ Birecthi enforcxnqy See p. 578, supra. Riqby v. Connol (1880), 14 Ch. D. 482 ; Buhc V . Littleboy (1880), 49 L.J. Ch. 802; Tf'olfe v. Matthews (1882), 21 Ch. D. 194; Winder Y. Governors and Guardians, #c. (1888), 20 Q. B. D. 412 ; Crockery. Eniqlit, [1892] 1 Q. B. 702 (the case of a member's nominee) ; Chamberlain'' s Wharf V. Smith, [1901] 2 Ch. 605 ; Howden v. Yorkshire Miners' Assoc, [1903] 1 K. B.308 ; [1905] A. C. 256 ; Burke v. Amalgamated Society of Dyers, [1906] 2 K. B. 583. 5. The following Acts, that is to say. Friendly (1) The Friendly Societies Acts, 1855 and 1858, and the Acts amending Jjf^^^ot'to" the same (c/) ; apply to (2) The Industrial and Provident Societies Act, 1867, and any Act trade unions. amending the same (e) ; and (3) The Companies Acts, 1862 and 1867, shall not ajjj^ly to any trade union, and the registration of any trade union under any of the said Acts shall be void, and the deposit of the rules of any trade union made under the Friendly Societies Acts, 1855 and 1858, and the (ff) Mineral Water, &,c. v. /?r;o^A (1887), [c) See Strick v. Swansea, ^-c. (1887), 36 Ch. D. 465 ; Chamberlain's Wharf \. 36 C. D. 558, 561. Smith, [1901] 2 Ch. 605 For the dis- ^ Repealed and consoHdated by the cussionof the Common Law relatmg to prieUly Societies Act, 1896 (59 & 60 such an agreement, see Collins v. Locke -rr . ',,-v ^ Vict. c. 25). ((') Repea enforcing" in text, supra. & 60 Vict. c. 26. (1879), 4 A. C. 674. (i) See cHscs cited in note on " directly (c) Repealed and consolidated by 59 582 TRADE UNIONS. Acts amending the «anie, before the paasiug ui this Act, shall cease to bo of any effect. Deposit of yulfs. Only a legal trade union might deposit its rules nnder those Acts: Hornby V. C/oxe (1867), L. R. 2 Q. B. 153; Farrer v. Close (1869), L. R. 4 Q. B. 652. See note on sect. 12, infra. Sect. 2 of the Triule Union Act Amendment Act, 1876, makes the Friendly Societies Act apply in the case of a trade union " which insures or pays money on the death of a child under ten years of age." See note on that section, infra. Registry ol trade unions. Land for trade unions may be purchased or leased. Registered Trade Unions. 6. Any seven or more members of a trade union may by subscribing their names to the rules of the union, and otherwise complying with the provisions of this Act with respect to registry, register such trade union under this Act, provided that if any one of the purposes of such trade union be unlawful such registration shall be void. 7. It shall be lawful for any trade union registered under this Act to purchase or take upon lease in the names of the trustees for the time being of such union any land not exceeding one acre, and to sell, exchange, mort- gage, or let the same, and no purchaser, assignee, mortgagee, or tenant shall be bound to inquire whether the trustees have authority for any sale, exchange, mortgage, or letting, and the receipt of the trustees shall be a discharge for the money arising therefrom ; and for the jiurjiose of this section every branch of a trade union shall be considered a distinct union. In III re Amos, Carrier v. Price, [1891] 15 Ch. 159, there was a betjuest and devise of leasehold and freehold proj)erty in remainder to a registered trade union ; and it was argued that the word " pur(;hase" in this section meant " to acquire otherwise than by descent or escheat"; but North, J., held that it was only by virtue of this section that a trade union can acquii-c and hold land at all, and that the word " purchase " in the section meant to acquire out-and-out by a paym(>nt of money down, as opposed to "taking a lease," i.e., a tenancy at a yearly rent. lie also held that tlie bequest was void for perpetuity, and that a bequest of an annuity of M. to a benevolent fund administered by the trade union, to be paid by the devisees of the land, was void, as being, inter alia, against the Statute of Mortmain. Query: how is this decisi(m affected by the Mortmain and Charitable Uses Act, 1891 ? Property of trade unions vested in trustees. 8. All real and personal estate whatsoever belonging to any trade union registered under this Act shall be vested in the trustees for the time being of the trade union appointed as provided by this Act for the use and benefit of such trade union and the members thereof, and the real or personal estate of any branch of a trade union shall be vested in the trustees of such branch (/), and be under the control of such trustees, their respective executors or administrators, according to theii' respective claims and interests, and uj^on the death or removal of any such trustees the same shall vest in the succeed- ing trustees for the same estate and interest as the former trustees had therein, and subject to the same trusts, without any conveyance or assign- ment whatsoever, save and exce^it iu the case of stocks and securities in the public funds of Gi'eat Britain and Ireland, which shall be transferred into the names of such new trustees ; and in all actions, or suits, or indictments, (/) " Or of the trustees of the trade union, if tlie rules of the trade union so provide." See sect. 3 of the Trade Union Act Amendment Act, 1876, infra. TRADE UNIONS. 5^3 or summary proceedings before auy court of summary jurisdiction, touching or concerning any such property, the same shall be stated to be the propertj- of the person or persons for the time being holding the said office of trustee, in their proper names, as trustees of such trade union, without any further description. 9. The trustees of any trade union registered under this Act, or any other Actions, &c. officer of such trade union who may be authorised so to do by the rules ^y °^' against thereof, are hereby empowered to bring or defend, or cause to be brought or defended, any action, suit, prosecution, or complaint in any court of law or equity, touching or concerning the property, right, or claim to pi'operty of the trade u.nion ; and shall and may, in all cases concerning the real or personal property of such trade union, sue and be sued, plead and be im- pleaded, in any court of law or equity, in their proper names, without other description than the title of their office ; and no such action, suit, prosecution, or comijlaint shall be discontinued or shall abate by the death or removal from office of such persons or any of them, but the same shall and may be proceeded in by their successor or successors as if such death, resignation, or removal had not taken place ; and such successors shall pay or receive the like costs as if the action, suit, prosecution, or complaint had been commenced in their names for the benefit of or to be reimbursed from the funds of such trade union, and the summons to be issued to such trustee or other officer may be served by leaving the same at the registered office of the trade union. See note on sect. 4, sub-sect. (2), of Trade Disputes Act, 1906, at p. 607, infra. If an officer of a trade union wilfully withholds money of the trade union, he is not, in the absence of fraud, liable to the penalties imposed by sect. 12 of this Act, but he may be sued under this section for the recovery of the money : Madden v. Rhodes, [1906] 1 K. B. 534. 10. A trustee of any trade union registered under this Act shall not be Limitation of liable to make good any deficiency which may arise or happen in the funds responsibifity of such trade union, but shall be liable only for the moneys which shall be actually received by him on account of such trade union. 11. Every treasurer or other officer of a trade union registered under this Treasurers, &c. to account. Act, at such times as by the rules of such trade union he should render such ^ account as hereinafter mentioned, or upon being required so to do, shall render to the trustees of the trade union, or to the members of such trade union, at a meeting of the trade union, a just and true account of all moneys received and paid by him since he last rendered the like account, and of the balance then remaining in his hands, and of all bonds or vsecurities of such trade union, which account 'the said trustees shall cause to be audited by some fit and proper person or persons by them to be appointed ; and such treasurer, if thereunto required, upon the said account being audited, shall forthwith hand over to the said trustees the balance which on such audit appears to be due from him, and shall also, if required, hand over to such trustees all securities and effects, books, papers, and property of the said trade union in his hands or custody ; and if he fail to do so the trustees of the said trade union may sue such treasurer in any competent court for the balance appearing to have been dvie from him upon the account last rendered hy 584 TKADK UNIONS. Punishment for witli- holdin-r money, &c. him, aud fur all the moneys since received by liim on account of the said trade union, and for the securities and effects, books, papers, and property, in his hands or custody, leaving him to set off in such action the sums, if any, which he may have since paid on account of the said trade union ; and in such action the said trustees shall be entitled to recover their full costs of suit, to be taxed as between attorney and client. 12. If any officer, member, or other i:>erson being or representing himself to be a member of a trade union registered under this Act, or the nominee, executor, administrator, or assignee of a member thereof, or any person whatsoever, by false representation or imposition obtain possession of any moneys, secui-ities, books, pajiers, or other effects of such trade unidu, or, having the same in his possession, wilfully withhold or fravidulently mis- apply the same, or wilfully apply any part of the same to purposes other than those expressed or directed in the rules of such trade union, or any part thereof, the court of summary j urisdiction for the place in which the regis- tered office of the trade union is situate [(j), upon a complaint made by any pei'son on behalf of such trade unicm, or by the registrar, or in Scotland at the instance of the proc\u-ator fiscal of the court to which such complaint is competently made, or of the trade union, with his concurrence, may, by summary order, order such officer, member, or other person to deliver up all such moneys, securities, books, papers, or other effects to the trade union, or to repay the amount of money applied improi^erly, and to pay, if the court think fit, a further sum of money not exc(5eding twenty pounds, together with costs not exceeding twenty shillings ; and, in d(!fault of such delivery of effects, or repayment of such amount of money, or payment of such penalty and costs aforesaid, the said court may order the said person so convicted to be imprisoned, with or without hard labour, for any time not exceeding three months : Provided, that nothing herein contained shall prevent the said trade union, or in Scotland her Majesty's Advocate, from proceeding by indictment against the said party ; provided also, that no person shall bo proceeded against by indictment if a conviction shall have been previously obtained for the same offence under the provisions of this Act. There must be criminal misconduct to render an officer liable to penalties under this secticm : Madden v. Rhodes, [1906] 1 K. B. 53t. See note on se-istered office of trade uuions. Annual returns to be jjrepared as registrar may direct. Kesristrars. Circulating false copies of rules, &c. a mis- demeanour. 15. Every trade union registered under this Act shall have a registered offici- to which all communications and notices may be addressed ; it' any trade union under this Act is in operation for seven days without having such an office, such trade union aud every officer thereof shall each incur a penalty not exceeding five pounds for every day during which it is so in operation. Notice of the situation of such registered office, and of any change therein, shall bo giveu to the registrar and recorded by him ; until such notice is given the trade union shall not be deemed to have complied with the provisions of this Act. 16. A general statement of tlie rec(npts, funds, effects, and expenditure of every trade union registered under this Act shall be transmitted to the regis- trar before the first day of June in every year, and shall show fully the assets and liabilities at the date, and the receipts and expenditure during the year preceding the date to which it is made out, of the trade union ; and shall show separately the expenditure in respect of the sevi>ral objects of the trade union, and shall be prepared and made out up to such date, in such form, and shall comprise such particulars, as the registrar may from time to time require ; and every member of, and depositor in, any such trade union shall be entitled to receive, on application to the treasurer or secretary of that trade union, a copy of such general statement, without making any payment for the same. Together with such general statement there shall be sent to the registrar a copy of all alterations of rules and new rules and changes of officers made by the trade uni(m during the year preceding the date up to which the o-eneral statement is made out, and a copy of the ruhis of the trade union as they exist at that date. Every trade union which fails to comjjly with or acts in contravention of this section, and also every officer of the trade union so failing, shall each be liable to a penalty not exceeding five pounds for each offence. Every person who wilfully makes or orders to be made any false entry in or any omission from any such general statement, or in or from the return of such copies of rules or alterations of rules, shall ho. liable to a penalty not exceeding fifty pounds for each offence. 17. The registrars of the friendly societies in England, Scotland, and Ireland shall be the registrars under this Act. The registrar shall lay before Parliament annual reports with respt^ct to the matters transacted by such registrars in pursuance of this Act. 18. If any person with intent to mislead or defraud gives to any member of a trade union registered under this Act, or to any person intending or applying to become a member of such trade union, a copy of any rules or of any alterations or amendments of the same other than those respectively which exist for the time being, on the pretence that the same are the existing rules of such trade union, or that there are no other rules of such trade TRADE UNIONS. 587 union, or if any person with the intent uforesaid gives a copy of any rules to any person on the pretence that such rules arc the rules of a trade :inion registered under this Act which is not so registered, every person so offending shall be deemed guilty of a misdemeanour. Li(jul Procetdimjs. 19. In England and Ireland all offences and penalties under this Act may Summary be prosecuted and recovered in manner directed by The Summary Jurisdic- proceedings diction Acts. for offences, penalties, &c. In England and Ireland summary orders under this Act may be made and enforced on complaint before a court of summary jurisdiction in manner provided by The Summary Jiu'isdiction Acts. Provided as follows : 1. The " Court of Summary Jurisdiction," when hearing and determining an information or complaint, shall be constituted in some one of the following manners ; that is to say, (a) In England, (1) In any place within the jurisdiction of a metropolitan police magistrate or other stipendiary magistrate, of such magistrate or his substitute : (2) In the city of London, of the Lord Mayor or any alderman of the said city : (3) In any other place, of two or more justices of the peace sitting in petty sessions. (b) In Ireland, (1) In the police district of Dublin metropolis, of a divisional justice : (2) In any other place, of a resident magistrate. In Scotland all offences and penalties under this Act shall be prosecuted and recovered by the procurator fiscal of the county in the Sheriff Coui-t under the provisions of The Summary Procedure Act, 1864. In Scotland summary orders under this Act may be made and enforced on complaint in the Sheriff Court. All the jurisdictions, powers, and authorities necessary for giving effect to these provisions relating to Scotland are hereby conferred on the sheriffs and their substitutes. Provided that in England, Scotland, and Ireland— 2. The description of any offence under this Act in the words of such Act shall be sufficient in law. 3. Any exception, exemption, proviso, excuse, or qualification, whether it does or not accompany the description of the offence in this Act, may be proved by the defendant, but need not be specified or negatived in the information, and if so specified or negatived, no proof in relation to the matters so specified or negatived shall be required on the part of the informant or prosecutor. 20. In England or Ireland, if any party feels aggrieved by any order or Appeal to conviction made by a court of summary jurisdiction on determining any quarter 588 TRADE UNIONS. Appeal in Scotland. Interested person not to act as a member of a Com t of Appeal. complaint or information under this Act, the party so aggrieved may appeal therufrom, subject to the conditions and regulations following : (1) The appeal shall be made to some court of general or quarter sessions (A-). 21. In Scotland it sliall be competent to any person to appeal against any order or conviction under this Act to the next Circuit Court of Justiciary, or where there are no Circuit Courts to the High Court of Justiciary at Edin- burgh, in the manner prescribed by and under the rules, limitations, condi- tions, and restrictions contained in the Act passed in the twx'utieth year of the reign of ffis Majesty King George the Second, chapter forty-three, in regard to appeals to Circuit Courts in matters criminal, as the same may be altered or amended by any Acts of Parliament for the time being in force. All penalties imposed under the provisions of this Act in Scotland may be enforced in default of payment by imprisonment for a term to be specified in the summons or complaint, but not exceeding three calendar months. All penalties imposed and recovered under the provisions of this Act in Scotland shall be paid to the sherifi clerk, and shall be accounted for and paid by him to the Queen's and Lord Treasurer's Remembrancer on behalf of the Crown. 22. A person who is a master, or father, son, or brother of a master, in the particular manufacture, trade, or business in or in connection with which any otVeuce under this Act is charged to have been committed shall not act as or as a member of a court of summary jurisdiction or appeal for the purposes of this Act. DofiuitioiiH. Definitions. 23. In this Act- As to Ireland, within the police district of Dublin metropolis, the Acts rc-ulating the powers and duties of justices of the peace for such district, or of the police of such district and elsewhere in Ireland, "The Petty Sessions (Ireland) Act, 1851," and any Act amending the same. In Scotland the term "misdemeanour" means a crime and offence. The term "trade union " means such combination, whether temporary or permanent, for regulating the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or for imposing restrictive conditions on the conduct of any trade or business, as would, if this Act had not passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade {l) : Provided that this Act shall not affect — (1) Any agreement between partners as to their own business ; (U) Any agreement between an employer and those employed by him as to such employment ; (3) Any agreement in consideration of the sale of the good-will of a business or of instruction in any profession, trade, or handicraft. (A) The rest of this section is repealed by the Summary Jurisdiction Act, 1884, and the proceudinj^'-s on appeal rcjiubitod by sect. ;U of the Summary Jurisdiction Act, 1879. See sect. 6 of the .Summary Jurisdiction Act, 1884. (/) Repealed and r.-placed by sect. 16 of Act of 187G, post. TRADE UNIONS. 589 Repeal. 24. The Trades Unions Funds Protection Act, 1869, is hereby rci^ealed {m). Repeal of Provided that this repeal shall not affect — Trades Unions (1) Anything duly done or suffered under the said Act : t "t*' ** At' (2) Any right or privilege acquired or any liability incurred under the 1869, as said Act : herein stated. (3) Any penalty, forfeiture, or other punishment incurred in respect of any offence against the said Act : (4) The institution of any investigation or legal proceeding or an}^ other remedy for ascertaining, enforcing, recovering, or imposing any such liability, penalty, forfeiture, or punishment as aforesaid. SCHEDULES. FIKST SCHEDULE. Of Mutters to he provided for hy the Rules of Trade Unions Registered under this Act. 1 . The name of the trade union and place of meeting for the business of the trade union. 2. The whole of the objects for which the trade union is to be established, the purposes for which the funds thereof shall be ai^plicable, and the con- ditions under which any member may become entitled to any benefit assured thereby, and the fines and forfeitures to be imposed on any member of such trade union. 3. The manner of making, altering, amending, and rescinding rules. 4. A provision for the appointment and removal of a general committee of management, of a trustee or trustees, treasurer, or other officers. 0. A provision for the investment of the funds, and for an annual or periodical audit of accounts. 6. The inspection of the books and names of members of the trade union by every person having an interest in the funds of the trade union (n). The alteration by a trade union, during the insanity of a member, of a rule as to sick benefits, to the prejudice of that member, is bindino- upon him, if made in accordance with the rule authorizing' and regulating the alteration of the rules of the union : Bnrkv v. Aniahjamatcd Society of Dijeis, [1906] '1 K. B. 583. The rules of a trade union included among other objects the provision of pai'liamentarv representation. There was a general rule authorizing the raising of funds by levies " to carry on the business of the federation in the objects hereinafter specified," but no special rule authorizing a levy for the .specific purpose of returninu- and maintaining parliamentary representatives. A divisional Court refused to interfere with a levy made in pursuance of a resolution for the last- mentioned purpose on the ground of SX^heai^ ultra vires : Steele w . South Wales Miners' Federation [19071 1 K. B. 361. ' '- ^ {in) See note on sect. 12, supra. shall provide for the manner of dissolv- ing the same" (39 & 40 Vict. c. 22, («) "The rules of every trade union s. 14). 590 TRADE UNIONS. SECOND SCHEDULE. Maxim Kin Fees. For registering trade union For registering alterations in rules For inspection of documents - £ 8. d. - 1 - 10 -026 ;59 & 40 VICT. C. 22. Arrangement of Clauses. Clause. 1 . Construction and short title. 2. Trade unions to be within s. 28 of Friendly Societies Act, 1875. 3. Amendment of s. 8 of i^rincij^al Act. 4. Provision in case of absence, &c. of trustee. 5. Jiuisdiction in offences. 6. Eegistry of unions doing business in more than one country. 7. Life Assurance Companies Acts not to applj' to registennl unions. 8. Withdrawal or cancelling of certificate. 9. Membership of minors. 10. Nomination. 11. Change of name. 12. Amalgamation. 13. Registration of changes of names and amalgamations. 14. Dissolution. 15. Penalty for failure to give notice. 16. Definition of "trade union" altered. Construction and short title. Trade unions insuring children's lives t). («) See the judgment of Lindley, J., in Crocker v. K^iiyht, [1892] 1 Q. B. 70'2, ride note on sect. 10 iiifra. (p) The section referred to is repealed and re-enacted in substance by the Friendly Societies Act, 1896, ss. 62—67, and s. 84, sub-ss. (f) and (g). See also sect. 13, sub-sect (1) of the Collecting Societies and Industrial Assurance Com- panies Act, 1896. TRADE UNIONS. -501 3. Whereas by section eight of the principal Act it is enacterl that "the Amendment real or personal estate of any branch of a trade union shall be vested in the of sect. 8 of trustees of such branch : " The said section shall bo read and construed as if ^^ ^'^ P^ immediately after the hereinbefore recited words there were inserted the words ' ' or of the trustees of the trade union , if the rules of the trade union so provide." 4. When any person, being or having been a trustee of a trade union or Provision in of anj' branch of a trtide union, and whether aiipointed before or after the '^^^^ '^^ legal establishment thereof, in whose name any stock belonging to such of trustee union or branch transferable at the Bank of England or Bank of Ireland is standing, either jointly with another or others, or solely, is absent from Great Britain or Ireland respectively, or becomes bankrupt, or files any petition, or executes any deed for liquidation of his affairs by assignment or arrangement, or for composition with his creditoi's, or becomes a lunatic, or is dead, or has been removed from his office of trustee, or if it be unknown whether such person is living or dead, the registrar, on application in writing from the secretary and three members of the union or branch, and on proof satisfactory to him, may direct the transfer of the stock into the names of any other persons as trustees for the union or branch ; and such transfer shall bo made by the surviving or continuing trustees, and if there be no su.ch trustee, or if such trustees refuse or be unable to make such transfer, and the registrar so direct, then by the Accountant-General or deputy or assistant Accountant-General of the Bank of England or Bank of Ireland, as the case may be ; and the Governors and Companies of the Bank of England and Bank of Ireland respectively are hereby indemnified for ^ anything done by them or any of their officers in pursuance of this provision against any claim or demand of any person injuriously affected therebj'. 5. The jvmsdiction conferred in the case of certain offences by section Jurisdiction twelve of the principal Act upon the court of summary jurisdiction for the i^ otfences. place in which the registered office of a trade union is situate may be exer- cised either by that court or by the court of summary jurisdiction for the place where the offence has been committed. 6. Trade unions carrying on or intending to carry on business in more Registry of than one country shall be registei'cd in the country in which their registered "^ions doing office is situate ; but copies of the rules of such unions, and of all amend- ,„'l^,!^!if„^^ ments of the same, shall, when registered, be sent to the registrar of each of country, the other countries, to be recorded by him, and until such rules be so recorded the union shall not be entitled to any of the privileges of this Act or the princiiJal Act, in the country in which such rules have not been recorded, and until such amendments of rules be recorded the same shall not take effect in such country. In this section " country" means England, Scotland, or Ireland. 7. Whereas by the " Life Assurance Companies Act, 1870," it is provided Life Assur- that the said Act shall not apply to societies registered under the Acts ^°<^^ Com- relating to Friendly Societies : The said Act (or the amending Acts) shall not n^^ to ^^^\ apply nor be deemed to have applied to trade unions registered or to be to registered registered under the principal Act. unions. 8. No certificate of registration of a trade union shall bo withdrawn "Withdrawi «• or cancelled otherwise than by the chief registrar of friendly societies, or or cancelling' of certificate. 592 TRADE UNIONS. Membership of minors. Nomination of persons to whom sum not exceeding 100/. may be paid at death. in the case of trade unions registered and doing business exclusively in Scotland or Ireland, by the assistant registrar for Scotland or Ireland, and in the following cases : (1) At the request of the trade union to bo o\adenced in such manner as such cbief or assistant registrar shall from time to time direct : (2) On proof to his satisfaction that a certificate of registration has been obtained by fraud or mistake, or that the registration of the trade union has become void under section six of the Trade Union Act, 1871, or that such trade union has wilfully and after notice from a registrar whom it may concern, violated anj' of the provisions of the Trade Union Acts, or has ceased to exist. Not less than two months' previous notice in writing, specifying briefly the ground of anj- proposed withdrawal or cancelling of certificate (unless where the same is shown to hiive become void as aforesaid, in which case it shall be the duty of the chief or assistant registrar to cancel the same forthwith) shall be given by the cbief or assistant registrar to a trade union before the cer- tificate of registration of the same can be withdrawn or cancelled (except at its request). A trade union whose certificate of registration has been withdrawn or cancelled shall, from the time of such wathdrawal or cancelling, absolutely cease to enjoy as such, the privileges of a registered trade union, but without prejudice to any liability actually incurred by such trade union, which may be enforced against the same as if such withdrawal or cancelling bad not taken place. 9. A person under the age of twenty-one, but above the age of sixteen, may be a member of a trade union, unless provision be made in the rules thereof to the contrary, and may, subject to the rules of the trade union, enjoy all the rights of a member except as berein provided, and execute all instruments and give all acquittances necossarj', to be executed or given under the rules, but shall not bo a member of the committee of management, trustee, or treasurer of the trade union. 10. A member of a trade union not being under the age of sixteen years may, by writing under his hand, delivered at, or sent to, the registered office of the trade union, nominate any person not being an officer or servant of the trade union (unless such officer or servant is the husband, wife, father, mother, child, brother, sister, nephew, or niece of the nominator), to whom any moneys payable on the death of such member not exceeding fifty pounds {(/) shall be paid at his decease, and may from time to time revoke or vary such nomination by a writing under his hand similarly delivered or sent ; and on receiving satisfactory proof of the death of a nominator, the trade vmion shall pay to the nominee the amount due to the deceased member not exceeding the sum aforesaid. In Crocker v. Kniyht, [18(^2] I Q. B. 702, the plaintiff brought an action to recover a sum of money due to him as a nominee under this section. It was argued that this section in terms imposed on the trade union a statutory obligation to pay ; but the Court of Appeal held that tard that, if the appellant did not leave his union and join tiieirs, all the members of their union W(mld cease working after a certain date. The appellant refused to comply, and, in fear of the threatened strike, he wan dismissed by his employer. There was evidence that the appellant was afraid that, owing to what the respondent had said, he would get no work. The Court (of five judges) held that, there having been no violence or threats of violence, there was no intimidation under this Act. In Curran v. Tri/eaven, the appellant, a trade union secretary, in pursuance of a previous intimation to the respondent, called out, in breach (as he knew) of subsisting contracts, all the respondent's union hands, because the respondent refused to cease employing non- union men, with the object of forcing the non-union men into the unions. There had been no violence or threats of violence, though the respon- dent swore that he was reasonably afraid that violence might be used to hi^ work- men or property. The Court held that there was no intimidation under this statute, and quashed the conviction. The Conrt, having particular regard to the terms of sect. 1 of 34 & 35 Vict. c. 32 (i/) (repealed by this Act), thouy-ht that the historv of trade union legislation showed that violence or threats of violence were necessary to constitute intimidation under this statute, following on this point the rulini>- of Cave, J., in lift/, v. McKcevit (unreported) ; and stated that, in their opinion, the whole criminal law of strikes was contained in this statute and the statutes referred to in it (s). These cases lay it down that intimidation must be "a threat of something which, if executed, would be an offence against person or tangible property" [n). See, as to intimidation in civil actions, Allen v. Flood, [189S] A. C. 1, Lord Watson's judgment at p. 9S, Lord Herschell's judgment at p. 130; Qmnu v. Leathern, [1901] A. C. 495, Lord Liudley's judgment at pp. 537 540 ; Gihlan v. Xational Ainah/amated, cjr., [1903] 2 K. B. 60(1, per Stirling, L. J., at p. 623. For instances of intimidation by -'black lists" and placards see Jenk'imon v. iV^'icW (1892), 8 T. L. R. 540; Trollope v. London BuUdimf Trade Federa- tion (1895), 72 L. T. (N. S.) 342 ; Qumn v. Leathern, [1901] A. C. 495. " Picketing.'''' By this term is meant the posting men at the entrances oi' approaches to premises or works at which there is a strike, for the purpose of obseiviiiii' and reporting the workmen going to or coming from the works, and of inducing workmen not to accept work [b). By 22 Vict. c. 34, it was provided that workmen were not to be deemed guilty of molestation or obstruction under the Act of 1825, simply because they entered into agreements for fixing the rate of wages or hours of labour, or endeavoured peace- ably to pert^uade others to cease or abstain from work. On proceedings under this ix) In this case Reg. v. Dnntt and seem merely to have decided that a Heg. V. Btdin were expressly dissented threat to do something specifically pro- from on the question of con.spiraey. hibited by the statute, if it in fact See the remarks of Lindley, L. J., on intimidates, is intimidation." G'lbson v. Lau'Hon, in lAjons v. Wilkinn, («) Sir Frederick Pollock's Memo- [1896] 1 Ch. 811, 824. raiidnm on Trade Combinatton, Fifth {>/) Where the threat or intimidation Report, Labour Commission, 1896, must be (sub-sect. (2)) such "as would p. 161. justify a justice of the peace .... to (b) Defined in the glossary of the bind over the person so threatening or Labour Commi.s.sion as '' the act of men intimidating to keep the peace." standing at the gates of mills, docks, &e. (.:) Mathew, J. [1. c. p. 550), says of watching those who go in and out, and Judge v. Bennett: "That case would inducing them to strike work.'' 599 600 TRADE UNIONS. statute LusVi, J. (c), directed tlie jury tliiit mere persuasion not to work by pickets Avas lawful; and in It. v. Hihlnrt (May, 1875), 13 Cox, C. C. 82 (decided under 34 k 35 Vict. c. 32), Mr. Russell Guruey directed the grand jury in liis charjje [d] that mere jieaceable persuasion, without any interference with the free will, was lawful. After the passinof of the present Act, Iluddleston, B., laid it down in 7i. v. liauld (liSTCi, 13 Cox, C. C. 282, that the words of sect. 7 must be taken strictly, and that watching or attending " for the pvirpose of persuading men to quit their employment would be illegal.'' This was the view taken bj' the Court of Appeal in Lyons v. H'i/khis, [18i)(iJ 1 Ch. 811 ; [1899] 1 Ch. 255, where it was held that under this section any "watching or besetting," save for the mere purpose of "obtaining and communicating information " (<'), was illegal; and that it was equally illegal to picket the premises of a'ly other person {e.i/., a sub-manufacturer to the plaintitt's) for th(> purpose of inducing his workmen to cea.se working, with a view to compelling the pLiintitfs to accede to the workmen's demands. Lord Lindley, who was a party to this decision on both occasions, speak.s in Qmitn v. Lcathciii, [1901] A. C. 495, 541, of this statute as follow.s : — "This Act clearly recognises the legality of strikes and loc^k-outs up to a certain point. It is plainly legal now for woi'kmen to combine not to work except on their own tei-ms. On th(> other hand, it is clearly illegal for them or anyone else to use force or threats of violence to prevent other people from working on any terms which they think ])n)per. i^ut there are many ways short of violence, or the threat of it, of compelling persona to act in a way which they do not like. There are annoyances of all sorts and degrees ; picketing is a distinct annoyance, and if damage results is an actionable nuisance at common law ; but if confined merely to obtaining or communicating information, it is rendered lawful by the Act (sect. 7)'. Is a coinVtiiiation to annoy a person's customers, so as to compel them to leave him unless he obeys the combination, permitted by the Act or not? It is not fcn-bidden by sect. 7 ; is it jiermitted by sect. 3 ? I cannot think that it is. The Court of Appeal (of which I was a member) so decided in Lyons v. Wilkins. . . ." See Farmer v. Wilmn and others (1900), 16 T. L. R. 309, where the point whether the complainants had a legal right to do the act which they were compelled to abstain from doing turned on sect. Ill of the Merchant Shipping Act, 1894. But the law on this subject has been entirely changed by the Trade Disputes Act, 1906, s. 2. See p. 610, infra. A (!onviction under this section must state specifically the act or acts Avhich the complainant was to be compelled to do or not to do : li. v. Mnrkoizif, [1892] 2 Q. B. 519 : .see Ex parte U'ilkius (1895), 64 L. J. M. C. 221. It must also specify the "property injured" (sub-sect. (1)) : Smith v. Jfloodi/, [1903] 1 K. B. 56. In Smith V. Thomasson (1890), 62 L. T. (N. S.) 68, it was held that a picket was rightly convicted of " persistently following" (^ub-sect. 2), in these circumstances: the respondent, who had replaced a man on strike, left the mill-gate amid the hooting of a crowd ; the appellant clo.sely followed him, without speaking, down two streets. (c) R. V. Shepherd (1869), 11 Cox, for there was no evidence of " unpeace- C. C. 325. f ul " conduct — is now by that section / ,\ T. • i. J • J.-L 1. £ T legalised in t(>rms. Tlie difference (d) Printed m the report oi Lyons v. -,1 -ir , -i\-ii: t i a Tr-7j- norvm 1 /^u • j-i i. between Vaughan Williams, Jj. .)., and Mtlkms, I 18991 1 Ch. m the note on ., • -i. /■ .i n 4. • 4.1 ^ ' L J the majority 01 the Court in that case, pp. 262, 263. [1899] 1 Ch. 255, as to the meaning of (e) See the last clause of the section, the words, "wrong-fully and without which must be read with sub-sect. (4). legal authority," is no longer important. There is no doubt that sect. 2 of the The effect of sect. 2 is to enact the view Trade Disputes Act, 1906, overrules pro])oundedbyVaughan Williams, L..T., Lyons v. Wilkins as a decision on the and ad<)))tcd by the Court of Appeal in facts. " Peacefully persuading any Ward, J.ock 4'- Co., iJd. v. 'The Operative person to work or alistain from work- J'rintrrs^ Assistants'' Society and others ing," to restrain which the interim (1906), 22 T. L. R. 327 ; see par- injunction iu that case was granted — ticularlj' the judgment of Moulton, L. J. TRADE UNIONS, 601 8. Where in uuy Act relating to cmi)l(jyer.s or workmen a pecuniary Rcductmn^ penalty is imposed in respect of any offence under such Act, and no power is given to reduce such penalty, the justices or court having jurisdiction in respect of such offence may, if they think it just so to do, impose by way of penalty in respect of such oft'ence any sum not less than one- fourth of the penalty imposed by such Act(/). Lvijnl ProcrcdiiKjs. 9. Where a person is accused before a court of summary jurisdiction of Power for any offence made punishabh; by this Act, and for which a penalty amounting "j^j^"^Jj:['J"'^''^' to twenty pounds, or imprisonment, is imi)Osed, the accused may, on ^^ \y\q(\ on appearing before the coiu-t of summary jurisdiction, declare that he objects indicitinent to being tried for such oft'ence by a court of summary jurisdiction, and there- '""^^ ^^\^^ o »' V V court or upon the court of summary jurisdiction may deal with the case in all respects .summary as if the accused were charged with an indictable offence and not an offence jurisdiction, punishable on summary conviction, and the offence may be prosecuted on indictment accordingly (/y). 10. Every offence under this Act which is made punishable on conviction rroceedings bv a court of summary jurisdiction or on summary conviction, and every before court J •' ■' . . , J. 1 01 summary penalty under this Act recoverable on summary conviction may be prosecuted jm-isdiction. and recovered in manner provided by the Summary Jurisdiction Act. 11. Providfid, that upon the hearing and determining of any indictment Regulations or information under sections four, five, and six of this Act, the respective as to evidence, parties to the contract of service, their husbands or wives, shall be deemed and considered as competent witnesses. But see now Criminal Evidence Act, 1898, which has changed the law since the decision in Connor v. Kent, [1891] 2 K. B. 545. 12. In England or Ireland, if any party feels aggrieved by any conviction Appeal to made by a court of summary jurisdiction on determining any information quarter under this Act, the party so aggrieved may appeal therefrom, subject to the conditions and regulations following : (1) The appeal shall be made to some court of general or quarter sessions(/i). definitions. Definitions. 13. In this Act,— ^^^^^^} The expression " the Summary Jurisdiction Act " (/) means the Act of the session of the eleventh and twelfth years of the reign of her present Majesty, chapter forty-three, intituled " An Act to facilitate the performance of the duties of justices of the peace out of sessions within England and Wales with respect to summary convictions and orders," inclusive of any Acts amending the same ; and ( /■) See Summary Jurisdiction Act, and the proceedings on appeal are rcgu- 1879 s. 4. lated by sect. 31 of the Summary Juris- [g) See S. J. Act, 1879, s. 17; Reg. diction Act, 1879. See sect. 6 of the V. Cockshott, [1898] 1 Q. B. 582. Act of 1884. (A) The rest of this section is repealed (<) See Interpretation Act, 1889, s. 13, by Summary Jurisdiction Act, Ls84, sub-ss. (7j, (10). 602 TRADE UNIONS. Definitiou of ' ' muuicipal authority " and '' public compauy." "Mali- ciously " in this Act construed as in Malicious Damage Act, 1861. The expression "court of summary jurisdiction" (A-) means — (1) As respects the City of London, the Lord Mayor or any alderman of the said city sitting at the Mansion House or Guildhall justice room ; and (2) As respects anj' police court division in the motropolitan police district, any metropolitiin i)olice magistrate sitting at the police court for that division ; and (3) As respects any city, town, liberty, borough, i)lace, or district for which a stipendiary magistrate is for the time being acting, such stipendiary magistrate sitting at a police court or other place appointed in that behalf ; and (4) Elsewhere any justice or justices of the peace to whom jurisdiction is given by the Summary Jurisdiction Act : pi'ovided that, as respects any case within the cognizance of such justice or justices as last aforesaid, an information under this Act shall be heard and determined by two or more justices of the peace in petty sessions sitting at some place appointed for holding petty sessions. Nothing in this section contained shall restrict the jurisdiction of the Lord Mayor or any alderman of the city of London, or of any metropolitan police or stipendiary magistrate, in respect of any act or jurisdiction whicli may now be done or exercised by him out of court. 14. The expression "municipal authority" in this Act means any of the following authorities, that is to say, the Metropolitan Board of Works, the Common Council of the City of London, the Commissionei-s of Sewers of the City of London, the town council of any borough for the time being subject to the Act of the session of the fifth and sixth years of the reign of liing William the Fourth, chapter seventy-six, intituled, " An Act to provide for the regulation of municipal corporations in England and Wales," and any Act amending the same {I), any commissioners, trustees, or other persons invested by any local Act of Parliament with powers of imju-oving, cleansing, lighting, or paving any town, and any local board. Any municipal authority or company or contractor who has obtained au- thority by or in pursuance of any general or local Act of Parliament to supply the streets of any city, borough, town, or place, or of any part thereof, with gas, or which is requii-ed by or in pursuance of any general or local Act of Parliament to supply water on demand to the inhabitants of anj' city, borough, town, or place, or any part thereof, shall, for th(^ purposes of this Act be deemed to be a municipal authority or company or conti'actor upon whom is imposed by Act of Parliament the duty of supplying such city, borough, town, or place, or part thereof, with gas or water. 15. The word " maliciously," used in reference to any offence under this Act, shall be construed in the same manner as it is required by the fifty- eighth section of the Act relating to malicious injuries to property, that is to say, the Act of the session of the twenty-fourth aiul twenty -iit'th j^ears of {/c) See Interpretation Act, 1889, s. 13, sub-H. (11). (/) This Act was repealed and re- placed by the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50) ; see sect. 2 1 "2, sub-sect. (l;,f<)r substitution here of i-efereuce to that Act. TRADE UNIONS. ^^^ the reign of her present Majesty, chapter ninetj'-seven, to be construed in reference to any offence committed under such last-mentioned Act. Saving Clause. 16. Nothing in this Act shall applj^ to seamen or to apprentices to the sea Saving as to sea service, service. This section means that seamen are not to be puuishcd f(jr offences mider this Act, not that the offences cannot be committed against seamen : Kennedy v. Vowie, [1891] 1 Q. P.. 771. In Jit' ff. V. Li/iic/i, [1898] 1 Q. B. 61, it was held th.it "seamen" here means " seamen " as defined bj' the Merchant Shipping Acts (17 & 18 Vict. c. 104, s. 2 ; 57 & 58 Vict. c. GO, s. 742) ; so that persons whose calling is the .sea. but who are not actually engaged on board a .ship, are puni.shablc for offences under this Act. RejKal. 17. On and after the commencement of this Act, there shall be Repeal of i-epealed : — I. The Act of the session of the thirty-fourth and thirty-fifth years of the reign of her present Majesty, chapter thirty-two, intituled " An Act to amend the criminal law relating to violence, threats, and molestation ; " and Acts. II. "The Master and Servant Act, 1867," and the enactments specified in the first schedule to that Act, with the exceptions following as to the enactments in such schedule, that is to say : (1) Except so much of sections one and two of the Act passed in the thirty-third year of the reign of King George the Third, chapter fifty-five, intituled "An Act to authorise justices of the peace 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 apprentice ; and also to make provision for the execution of warrants oi distress granted by magistrates," as relates to constables, overseers, and other peace or parish officers ; and (2) Except so much of sections five and six of an Act passed in the fifty-ninth year of the reign of King George the Third, chapter ninety-two, intituled " An Act to enable justices of the peace in Ireland to act as such, in certain cases, out of the limits of the counties in which they actually are ; to make provision for the execution of warrants of distress granted by them ; and to authorise them to impose fines upon constables and other officers for neglect of duty, and on masters for ill-usage of their apprentices," as relates to constables and other peace or parish officers ; and (3) Except the Act of the session of the fifth and sixth years of the rei"-n of her present Majesty, chapter seven, intituled "An Act to explain the Acts for the better regulation of certain apprentices ; " and (4) Except sub-sections one, two, three, and five of section sixteen of " The Summary Jurisdiction (Ireland) Act. 1851," relating to certain disputes between employers and the persons employed by them ; and GOi I'K'ADK UNIONS. III. Also there shall bo rept'iiled the iuliowinj^ cntictmeuts makiug breaches of contract criminal and relating to the recovery of wages by summary procedure, that is to say : (a) An Act passed in thtj fifth year of the reign of (iueeu Elizabeth, chapter four, and intituled ' ' An Act touching dy vers orders for artificers, labourers, servantes of husbandr5'e, and apprentices ; " and (b) So much of section two of an Act passed in the twelfth year of Iving George the First, chapter thirty-four, and intituled "An Act to prevent unlawful combination of workuion employed in the woollen manufactures, and for better payment of their wages," as relates to departing from service and quitting or returning work before it is finished ; and (c) Section twenty of an Act passed in the fifth year of King George the Third, chapter fifty-one, the title of which begins with the words " An Act for repealing several laws relating to the manufac- ture of woollen cloth in the county of York," and ends with the words " for preserving the credit of the said manufactures at the foreign market ; " and (d) An Act passed in the nineteenth year of King George the Third, chapter forty-nine, and intituled " An Act to prevent abuses in the payment of wages to persons (nnploycd in the bone and thread lace manufactory ; " and (e) Sections eighteen and twenty-three of an Act jjasscd in the session of the third and fourth years of her present Majesty, chapter ninety- one, intituled "An Act for the more effectual prevention of frauds and abuses committed by weavers, sewers, and other persons employed in the linen, hempen, union, cotton, silk, and woollen manufactures in Ireland, and for the better payment of their wages, for one year, and from thence to the end of the next session of Parliament ; " and (f) Section seventeen of an Act passed in the session of the sixth and seventh years of her present Majesty, chapter forty, the title of which begins with the words "An Act to amend the laws," and ends with the words " workmen engaged therein ; " and (g) Section seven of an Act passed in the session of the eighth and ninth years of her present Majestj', chapter one hundred and twenty-eight, and intituled ' ' An Act to make further regulations respecting the tickets of work to bo delivered to silk weavers in certain cases." Provided that, — (1) Any order for wages or further sum of compensation in addition to wages made in pursuance of section sixteen of ' ' The Summary Juris- diction (Ireland) Act, 1851," may be enforced in like manner as if it were an order made by a court of summary jurisdiction in pursuance of the Employers and "Workmen Act, 1875, and not otherwise ; and (2) The repeal enacted by this section shall not affect — (a) Anything diilj' done or suffered, or any right or liability acnuired or incurred uiuler any enactment hereby repealed ; or TRADE UNIONS. ^05 (b) Any penalty, forf(>ihiro, or iiunishmont infurrcd in respect of any offence committed against any enactment hereby repealed ; or (c) Any investigation, legal proceeding, or remedy in respect of any sucb right, liability, penaltj', forfeiture, or punishment as aforesaid ; and any such investigation, h^gal proceeding, and remedy may be carried on as if this Act had not passed. Application of Act to Scotland. 18. This Act shall extend to Scotland, with the modifications folhjwing : that is to say, *' (1) The expression " municipal authority " means the town council of any Definitions. royal or parliamentary burgh, or the commissioners of police of any burgh, town, or populous place under the provisions of the General Police and Improvement (Scotland) Act, 1862, or any local authority under the jirovisions of the Public Health (Scotland) Act, 18(37 : (2) The expression "The Summary Jurisdiction Act"(/H) means the Summary Procedure Act, 1864, and any Acts amending the same : (3) The expression " the court of summary jurisdiction " means the sheriff of the county or any one of his substitutes. 19. In Scotland the following provisions shall have effect in regard to the Recovery of prosecution of offences, recovery of penalties, and making of orders under Penalties in ,T • . , Scotland, this Act : — (1) Every offence under this Act shall be prosecuted, every jjenalty recovered, and every order made at the instance of the lord advocate or of the procurator fiscal of the sheriff court : (2) The proceedings may be on indictment in the Court of Justiciary in Edinburgh, or on circuit, or in a sheriff court, or may be taken summarily in the sheriff court under the provisions of the Summary Procedure Act, 1864 : (3) Every person found liable on conviction to pay any penalty under this Act shall be liable, in default of payment within a time to be fixed in the conviction, to be imprisoned for a term, to be also fixed therein, not exceeding two months, or until such penalty shall be sooner paid, and the conviction and warrant may be in the form of No. 3 of Schedule K. of the Summary Procedure Act, 1864 : (4) In Scotland all penalties imposed in pursuance of this Act shall be paid to the clerk of the court imposing them, and shall by him be accounted for and paid to the Queen's and Lord Treasurer's Remem- brancer, and be carried to the Consolidated Fund. 20. In Scotland it shall be competent to any person to appeal against any Appeal in order or conviction under this Act to the next circuit court of justiciary, or Scotland as where there are no circuit courts, to the High Court of Justiciary at ?o^Qeo ^> ^ Edinburgh, in the manner prescribed by and under the rules, limitations, c. 43. conditions, and restrictions contained in the Act passed in the twentieth year of the reign of his Majesty King George the Second, chai)ter forty-three, in regard to appeals to circuit courts in matters criminal, as the same maj' be altered or amended by any Acts of Parliament for the time being in force. (m) See Interpretation Act, 1S89, s. 13, sub-ss. (10), (8), ^06 TRADE UNIONS. Application of Ad to TreJund. Application 21. This .Vet .shall extuud to Iroliuul with the modifications foUowiug, to Ireland. that is to say :- The expression "The Summary Jurisdiction Act"(//) shall be construed to moan, as regards the police district of Dublin metropolis, the Acts regulating the powers and duties of justices of the peace for such district ; and elsewhere in Ireland, the Petty Sessions (Ireland) Act, 1851, and any Act amending the same : The expression " court of summary jurisdiction " (o) shall be construed to mean any justice or justices of the peace, or other magistrate to whom jurisdiction is given by the Summary Jurisdiction Act : The court of summary jurisdiction when hearing and determining com- plaints under this Act, shall in the police district of Dublin metropolis bo constituted of one or more of the divisional justices of the said district, and elsewhere in Ireland of two or more justices of the peace in petty sessions sitting at a place appointed for holding pett)' sessions : The expre.ssion "municipal authority " shall be construed to mean the town council of any borough for the time being, subject to the Act of the session oi the third and fourth years of the reign of her present Majesty, chapter one hundred and eight, entitled " An Act for the Eegulation of Municipal Corporations in Ireland," and any commis- sioners invested by any general or local Act of Parliament, with power of improving, cleansing, lighting, or paving any town or township. TEADE DISPUTES ACT, 1906 (6 Edw. 7, c. 47). " Prior to the decision in Tajf Vale Railway Co. v. AmaJgdinated Socicff/ of RaUwaij Servants, [1901] A. C. 426, it was doubtful wlietlier a registered trade union could sue or be sued in its regis- tered name. The House decided that it could be so sued in an action for an injunction against its agents " : per Lord Lindley in Yorhshhr JliNcr.^' A.s.sor. v. Ho>r(Ien, [1905] A. C. 256, 2S0. It was also there decided (i) that a trade union can be sued, in a proper case, in a representative action ; and (ii) tliat tlie funds of a trade union can be reached, by means of the joinder of the trustees (see per Lord Lindley, [1901] A. C. 44;3), to satisfy a claim for damages for torts committed by the agents of the trade union. It was, very largely, to overrule this decision that the Trade Disputes (w) Interpretation Act, 1889, a. 13, sub-.ss. (10), (9). (o) Ibid, sub-s. (11). TRADE UNIONS. Act, 1906, was passed. That object is attained by sect. 4 of the Act. Tliat section is quite general in its terms ; and is not, like the other sections, restricted to cases of " trade disputes." It simply prohibits actions in tort against trade unions. 8ucli actions, therefore, as Gihlan v. National Amakjamatcd Labourers' Umon,6fe., [1903] 2 K. B, GOO ; Glamorgan Coal Co. v. South Wales Miners' Federation, [1905] A. C. 239 ; Denahy and Cadehy Main (Jollitrics, Ltd. v. Yorkshire Miners' Assoc, [1906] A. C. 384; and the Taff Vale Case, ubi sup., are now, as against trade unions, not maintainable ; but, on the other hand, such actions as Wolfe v. Matthews (1882), 21 Ch. D. 194, and llowdm v. Yorkshire, l^-e., [1905] A. C. 256, brought by members of the trade union to restrain the payment of money in breach of the contract, contained in the rules, between the union and its members would still lie. It is difficult to understand sub-sect. (2) of sect. 4. The liability of trustees under sect. 9 of the Trade Union Act, 1871, is confined to cases of propertij ; impliedly, therefore, they are not liable to be sued in tort. This is the view taken by Farwell, J., in the Taff Vale Case, [1901] A. C. 426, where he says (p. 431) : " Sections 8 and 9 of the Act of 1871 expressly provide for actions in respect of property being brought by and against the trustees, and this exj)ress intention impliedly excludes such trustees from being sued in tort." And see Lord Lindley's speech in the same case for his view as to the position of the trustees in an action of tort {ibid., pp. 443, 445). Whatever be the meaning of this sub-section, it would not appear in any way to qualify the general immunity created by sub-sect. (1). By sects. 1, 2 and 3, great changes are effected in the law as applied to trade disputes. " Trade dispute " is thus defined by sect. 5, sub-sect. (3) : " In this Act and in the Conspiracy and Protection of Property Act, 1875, the expression ' trade dispute ' means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of the employment, or with the conditions of labour, of any person, and the expression ' workmen ' means all persons employed in trade or industry, whether or not in the employment of the emplover with whom a trade dispute arises ; and, in section three of the last- mentioned Act, the words ' between employers and workmen' shall be repealed." In Quinn v. Leathern, [1901] A. C. 495, the House of Lords held that the words " trade dispute between ' employers and work- men ' in sect. 3 of the Conspiracy and Protection of Property Act, 607 608 TRADE UNIONS. 1875, do not include a dispute on trade union matters between workmen wlio are members of a trade union and an employer of non-union workmen wlio refuses to employ members of a trade union." Such a dispute comes directly within this definition, and therefore would now receive the protection of both Acts. Suppose this state of facts : — Some members of a trade union in employment at a certain colliery are in arrears with their subscrip- tions to tlieu" union. Other members of the trade union employed at that colliery, in pursuance of a resolution by ballot taken at the instigation of a trade union ag-ent, give notice to terminate their contracts in order to secure the payment of their arrears by the defaulting members, or, failing that, the dismissal of tliose mem- bers from their employment. No violence, intimidation, or other illegal means is employed. The defaulters are dismissed "udth, or without {ride sect, ^i), due notice. It is submitted tlint tliis is a " trade dispute " within the definition, so as to give the agent and the men so giving notice the protection of this Act, whether as individuals, or as acting in combination, against any proceedings by tlie employer or by the defaulting members so dismissed. Doubtless, originally and in itself, it is not a " trade dispute " ; but the ballot is taken and the strike declared only because the master will not dismiss the men in arrear, and because the unionists Avill not work with them. Dismissal would solve the difficulty ; so, it may be said, would payment of the arrears ; but the dismissal of the defaulters has become an element in the dispute. Any other application of the definition would appear to be a strained limitation of the words — " connected with the employment or non- employment of an}^ person." Had tlie words been " having its origin in," or "having for its sole object," the employment, &c., &c., it might have been different. In the case supposed, the trade union would, in any event, be protected by sect. 4. The restriction of "trade dispute," implied, rather than expressed, in the judgments in Qiiiun v. Lcathon, 1. c. — (see the head-note to that case) — to disputes between an employer and his own workmen is also removed by this definition. Section 1 is very far-reaching. It has again and again been laid down that what is not acitionable, if done by one, may become so if done by many in combination : see notes (,/') and (/) at p. 075, .supra. This section abrogates that princi})le in the api)lication of tlie law to trade disputes. It enacts the view of the law propounded by Palles, C. B.,in Ju'arNr// v. L/oi/d (1890), 26 L. R. Ir. 268, and in Jiis dissenting judgnjent in Lcdthem v. Crairi, [1809] 2 I. R. at TRADE UNIONS. p. 681, followed by Darling, J., in Huttley v. Simmons, [1898] 1 Q. B. 181, and dissented from by the House of Lords in Quinn V. Leaf //em, [1901] A. C. 495; see, particularly, the speech of Lord llalsbury. See note (/) at p. 575, .supra. The ambit of sect. 1 is considerably widened by the provisions of sect. 3. The effect of these two sections, read together, is this : The mere inducement of some other person to break a contract of employment, or the mere interference with the trade, business, or employment of some other person or with the right of some other person to dispose of his capital or his labour a he wills, though the breach of contract or the interference be effected by acts done in pursuance of a combination, shall not be actionable, pro- vided that the acts in question have been done in contemplation or furtherance of a trade dispute ; that is to say, the last word of sect. 1 — " actionable " — means actionable whether under this Act or apart from it. Had sect. 3 to be excluded in considering, for the purposes of sect. I, the actionability of the act apart from com- bination, the words " apart from this Act " would have been added. It is submitted that this is the right w^ay of reading these sections. If the clause as to inducing breach of contract be excised, sect. 3 may be said to give legislative effect to the view enunciated by Lord Herschell in Allen v. Flood, [1898] A. C. 1, 132—141. The provisions of these sections render actions on such facts as were proved in Temperton v. Rn-ssell, [1893] 1 Q. B. 715, and Quinn v. Leathern, uhi sup., unmaintainable. With regard to sect. 2, see sect. 7 of the Conspiracy and Protection of Property Act, 1875, and the note on " Picketing " there, and foot-note {e) at p. 600. Such injunctions as those in Li/oiis V. Wilkins ([189fi] 1 Ch. at p. 832, per Kay, L. J.; and [1899] 1 Ch. at p. 258, per Byrne, J.) and the Taf Vale Ca!). It may be noted that this Act does not abrogate the common law of nuisance looked at from the point of view of the person whose pre- mises are beset (see Lyons v. Wilkins, [1899] 1 Ch. 255) {p), or the criminal law which prohibits obstruction of a highway by a crowd. (p) Always remembering the immunity of trade unions under sect. 4. M, BR 609 610 TKADE UNJONS. Amendment of law of consj^iracy in the case of trade dis- putes. 38 & 39 Vict, c. 86. Peaceful picketing. Removal of liability for interfering with another person a business, &c. Prohibition of actions of tort against trade unions. :U & 3') Vict, c. 31. Short title and construc- tion. TRADE DISPUTES ACT, 1906 (6 Edw. 7, c. 47). All Act to provide for the. regulation of Trades Unions and Trade Disputes. 1. The following paragraph shall be added as a new i^aragraph after the first paragraph of section three of the Conspiracy and Protection of Property Act, 1875 :— " An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or com- bination, would be actionable " (•) See remarks on preceding page. (.s) See remarks on pp. 606, 607. {t) See remarks on pp. 607, 608. 611 CHAPTER XIII. EMPLOYERS AND WORKMEN ACT, 1875. 38 & 39 VICT. c. 90. Arrangement of Clauses. Preliminary. Clauses. 1. Short title. 2. Commencement of Act. Part I. Jurisdiction — Jurisdiction of County Court. 3. Power of county court as to ordering of payment of money, set-off, and rescission of contract, and taking security. Court of Summary Jurisdiction. 4. Jurisdiction of justices in disputes between employers and workmen. 5. Jurisdiction of justices in disputes between masters and apprentices. 6. Powers of justices in respect of apprentices. 7. Order against surety of apprentice, and power to friend of apprentice to give security. Part II. Procedure. 8. Mode of giving security. 9. Summary proceedings. Part III. Definitions and Miscellaneous. Definitions. 10. Definitions: "Workman," " Tbe Summary Jurisdiction Act." 11. Set-off in case of factory workers. Application. 12. Application to apprentices. Saving Clause. 13. Saving of special jurisdiction, and seamen. R K :^ 612 EMPLOYERS AND WORKMEN ACT, 1875. Part IV. Application of Act to Scotland. Clauses. 14. Application to Scotland. Definitions. Part V. Application of Act to In/and. 15. Application to Ireland. Short title. Power of county court as to ordering of payment of money, set- off, and rescission of contract and taking security. An Act to enlarge the Powers of County Courts in respect of Disputes between Eniphiiiers and Workmen, and to give other Courts a limited Civil Jurisdiction in respect of such Disputes. Preliminarg. 1. This Act may be cited as the Employers and Workmen Act, 1875. 2. [^Commencement of Act. Repealed by Statute Law Revision {No. 2) Act, 1893.] Part I. Jurisdiction — Jurisdiction of County Court. 3. In any proceeding before a county court in relation to any dispute between an employer and a workman (a) arising out of or incidental to their relation as such (which dispute (i(j) is hereinatter referred to as a dispute under this Act) the court may, in addition to any jurisdiction it might have exercised if this Act had not passed, exercise all or any of the following powers ; that is to say, (1) It may adjust and sot olf the one against the other all such claims on the part either of the employer or of the workman, arising out of or incidental to the relation between them, as the court may find to be subsisting, whether such claims are liquidated or unlicjuidated, and are for wages, damages, or otherwise (c) ; and, («) The Act does not define " em- ployer." As to " workman," see sect. 10. (b) This includes a claim for damages and loss caused by a workman leaving his employment without giving previous notice to his employer, though before summons no claim had been made : Clcinson v. Euhhard (1876), L. R. 1 Ex. D. 179 ; or a mere difference as to what, upon the true construction of the contract, was the rate of wages : Charles V. Mortgagees of I'lymonth Waterworks (1890), 60 L. J. M. C. 20. (c) As to claims by master against infant, see Ledie v. Fitzpatrick (1877), 3 Q. B. D. 229. The following cases bear upon this section : liouikdge v. Hislop tl860), 29 L. J. M. C. 90. (Judg- ment in action by servant in County Court for a wrongful dismissal is a bar to proceedings before justices to recover quarter's wages.) Millett v. Coleman (1873), 44 L. J. Q. B. 194. (Summons for wages, heard by jiistices under the Master and Servant Act, 1867, dis- missed ; plaintiffs then issued plaints for the same in County Courts ; judgment for the defendant on the grounds that the matter was res Judicata.) EMPLOYERS AND WORKMEN ACT, 1875. ^1^ (2) If, having regard to all the circumstances of the case, it thinks it just to do so, it may r(*scind('/) any contract between the employer and the workman upon such terms as to the apportionment of wages or other sums due thereunder, and as to the payment of wages or damages, or other sums due, as it thinks just ; and, (3) Where the court might otherwise award damages for any breach of contract it may, if the defendant be willing to give security to the satisfacticm of the court for the performance by him of so much of his contract as remains unperformed, with the consent of the plaintiff, accept such security, and order performance of the contract accord- ingly, in place either of the whole of the damages which would other- wise have been awarded, or some part of such damages. The seciunty shall be an undertaking by the defendant and one or more surety or sureties that the defendant will perform his contract, subject on non-performance to the payment of a sum to be specified in the undertaking. Any sum paid by a surety on behalf of a defendant in respect of a security under this Act, together with all costs incurred by such surety in respect of such security, shall be deemed to be a debt due to him from the defendant ; and where such security has been given in or under the direction of a court of summary jurisdiction, that court may order payment to the surety of the sum which has so become due to him from the defendant. A " dispute" has arisen within this section even if the refusal to work is solely on the part of assistants engaffed by the " workman" (see sect. 10, infra) to help him in the work he has coutracted to do: Grnuiflcr v. Aymley (1880), 6 Q. B. D. 182. For the form of the " security," see sect. H and the note thereon, infra. Proceedings under this section are governed by the general practice of the Court. See the County Court Rules, 1903 and 1904. Court of Summary Jurisdiction. 4. A dispute under this Act between an employer and a workman may be Jurisdiction heard and determined by a court of summary jurisdiction, and such court, ^g^p^^<.gg^^ ^^ for the purposes of this Act, shall be deemed to be a court of civil jiu-is- between diction, and in a proceeding in relation to any such dispute the court may employe^ order payment of any sum which it may find to be due as wages, or damages, ^° '^^^ or otherwise, and may exercise all or any of the powers by this Act conferred Hindky v. Easlam (1878), 3 Q. B. D. Upon a complaint under 20 Geo. II. 481. (Appellant employed by respou- c. 19, by an ai-tificer for wages due by dents as a spinner; discharged for his employer, the justices were at Uberty ne"-Iecting his work. The respondents to take into account the quality of the refusing to pay wages in lieu of notice, work, and to make a deduction from the appellant took proceedings against wages for bad workmanship : Sharp v. respondents in the County Court. No Haiiimwrth (1862), 32 L. J. M. O. 33. counter-claim or set-oif filed or set up, {(l) Under this section the Scotch but evidence was produced to show Courts have held that it is competent to appellant guilty of nesligence. Verdict disregard arbitratioa clauses in contracts for 3/ 10,s" Held, that the respondents of service : IVihon \. Ghmjow Tramways were not precluded from preferring a Co. (1878), 5 R. 981 ; Qlaisgow Tramway claim before the justices under sects. 3 Co. v. Bempsay (1877), 3 Coup. 440 ; but and 4, for wronu-fiilly and negligently scv Lnndoii Trawrays Co. y. Baiky (ISil), damaging materials.) 3 Q. B. D. 127. 614 EMPLOYERS AND WORKMEN ACT, 1875. Disputes between maHtcrs and apprentices. Powers of justices in respect of apprentices. on a couuty covirt : provided that in any proceeding in relation to any sucli dispute the court of summary jurisdiction — (1) Shall not exercise any jurisdiction where the amount claimed exceeds ten pounds ; and (2) Shall not make an order for the payment of any sum exceeding ten pounds, exclusive of the costs incurred in the case ; and (3) Shall not require security to an amount exceeding ten pounds from any defendant or his surety or sureties. For rules of procedure and forms see the " Employers and Workmen Rules, 188G," printed infra. Sect. 11 of Jei-A'is's Act (11 & 12 Vict. c. 43), which prescribes a limit of six months for bringing a complaint, does not apply to proceedings under this Act : Charts v. Mortgagees of Plymouth Waterworks (1890), 60 L. J. M. C. 20. 5. Any dispute between an apprentice to whom this Act applies {dd) and his master, arising out of or incidental to their relation as such(^) (which dispute is hereinafter referred to as a dis})ute under this Act), may be heard and determined by a court of summary jurisdiction. 6. In a proceeding before a court of summary jurisdiction in relation to a dispute under this Act between a master and an apprentice, the court shall have the same powers as if the dispute were between an employer and a workman, and the master were the employer and the apprentice the workman, and the instrument of apprenticeship a contract between an emijloyer and a workman, and shall also have the following powers : (1) It may make an order directing the apprentice to perform his duties under the apjirenticeship ; and, (2) If it rescinds the instrument of api3renticeship it may, if it thinks it is just so to do, order the whole or any part of the premium paid on the binding of the apprentice to be repaid. Where an order is made directing an apprentice to perform his di;ties under the apprenticeship, the court may, frcmi time to time, if satisfied after the expiration of not less than one month from the date of the order that the apprentice has failed to comply therewith, order him to be imprisoned for a period not exceeding foiu'teeu days. The jurisdiction over apprentices is limited by sect. 12, infra. As to commitment to prison, see Rule 2, infra. Order against surety of apprentice, and power to friend of apprentice to give security. 7. In a proceefling before a court of summarj^ jurisdiction in relation to a dispute under this Act between a master and an apprentice, if there is any person liable, under the instrument of apprenticeship, for the good conduct of the apprentice, that person may, if the court so direct, be summoned in like manner as if he were the defendant in such proceeding to attend on the hearing of the proceeding, and the court may, in addition to or in substitu- tion for any order which the court is authorised to make against the apprentice, order the person so summoned to pay damages for anj" breach of (dd) See sect. 12, infra. '') Under 4 Geo. IV. c. 34, s. 2, nuigistrates had juri.sdiction, tliough siinmions en out after relation of master and apprentice had ceased ; li. v. Proud (1867), taken L. R. 1 C. C. R. 71 EMPLOYERS AND WORKMEN ACT, 1875. ^^^ the contract of apprenticeship to an amount not exceeding the limit (if any) to whi(!h he is liable under the; instrum(>nt of a])i)renticetihip. The court may, if the person so summoned, or any other person, is willing to give security to the satisfaction of the court for the performance by the apprentice of his contract of apprenticeship, accept such security instead of or in mitigation of any punishment which it is authorised to inflict upon the apprentice. Part II. Procedtire. 8. A person may give security under this Act in a county court or court of Mode of summary jurisdiction by an oral or written acknowledgment in or under the ^g^^°|y_ direction of the court of the undertaking or condition by which and the sum for which he is bound, in such manner and form as may be prescribed by any rule for the time being in force, and in any case where security is so given, the court in or under the direction of which it is given may order payment of any sum which may become due in pursuance of such security. The Lord Chancellor may at any time after the passing of this Act, and from time to time make, and when made, rescind, alter, and add to rules with respect to giving security under this Act. The following is the form of undertaking prescribed by the County Com-t Rules, 1903: — 432. Undertaking in writing by Defendant to perform Contract. The Employers and Workmen Act, 1875. \_Not to be printed.'] In the Couutv Court of , holden at (Seal) Between A. B., plaintifE, and CD., defendant. Whereas it has been found by this Court, on the day of 19 , that the defendant had broken the contract for the breach of which he was summoned. And whereas the (Jourt would have awarded to the plaintiff the sum of £ by way of damages suffered by him in consequeuce of such breach, and would have ordered the defendant to have paid such sum, but that the defendant was willing to give security for the perfonnauce by him of so much of the contract as remains unperformed. Now, theiefore, I the undersigned defendant and we the undersigned sureties [or the undersigned surety] do undertake that the said defendant will perform so much of the said contract as remains unperformed, that is to say, \Jiere >ned for not doing so. ^cn Ernns v. U'llla (187(JJ, 4o L. J. C. P. 420. EMPLOYERS AND WORKMEN ACT, 1875. 617 engaged in manual labour, whether under the age of twenty-one years or above that ago, has ontored into or works under a contract with an employcn-, whether the contract bo made before or after the passing of this Act, be express or implied, oral or in writing {(/), and be a contract of service or a conti-act personally to execute any work or labour (A). This definition ia incorporated by reference in the Truck Acts (sec 50 & 51 Vict. c. 46, s. 2) and the Employers' Liability Act, 1880. It excludes " menial servants," i.e., those " whose main duty is to do actual bodily work for the personal comfort, convenience, and luxury of the master, his servants and his guests, and who for this purpose become part of the master's (17) This does away with the effect of Banks V. Crosslands (1874), L. R. 10 Q. B. 97 ; but the section does notatfeot the Statute of Frauds. {h) Assistance in construing this sec- tion may be obtained from the chief decisions under the repealed Act 4 Geo. IV. c. 34, which applied to any servant in husbandry, or ' ' any artificer, calico printer, haudicraftsmiin, miner, collier, keelman, pitman, glassman, potter, labourer, or other person." It did not contain the words " contract per- sonally to execute any work or labour," or their equivalent ; and the Courts re- quired proof of service, or of a con- tract to serve. Within the Act (4 G-eo. IV. c. 34). Ex parte Ormerod (1844), 13 L. J. N. S. M. C. 73 ; 1 D. & L. 825. (A designer who con- tracted to serve a calico printer for a term of years, and whose duty it was to draw patterns, to be afterwards en- graved on copper rollers, ' ' an artificer." ) hi re Bailey [1^0^), i E,. & B. 607; 23 L. J. N. S. M C. 161. (Contract to serve as a collier until a month's notice on either side ; wages to be Is. \Qd. per ton of coals, paid monthly ; evidence of obligation to serve j^ersoually.) Ex parte Gordon (1855), 25 L. J. N. S. M. C. 12; 3 W. R. 568. (A journeyman tailor working with others for a master tailor on the premises of the latter ; paid at a certain price per garment. The contract did not extend beyond the job, but, while executing it, the former was bound to work exclusively for his employer.) Willett v. Boole (1860), 30 L. J. N. S. M. C. 6 ; 6 H. & N. 26. (B., a potter, engaged W. to work for him as a biscuit oven-placer, at daily wages for a year. By another agree- ment of the same date, B. engaged R. to work for him by piecework, for the same time, as biscuit oven-fireman. R. paid W. his wages out of the amount earned by R. for piece-work. A con- tract of master and servant subsisted between B. and W., notwithstanding the fact that payments of wages were made to W. by R.) Lawrence v. Todd (1863), 14 C. B. N. S. 554; 32 L.J. M. C. 238. (T., with six other artisans, agreed under a written contract to ccjm- plete an iron ship ; they were to work exclusively for the appellant, but were at liberty to employ skilled and un- skilled workmen to assist them.) Whitclry V. Arinita(/p {1864), I) W. R. 144. (A stuff-finisher of Italian goods, w^ho worked manually for weekly wa^es and a commission, but who directed other workmen.) Not within the Act. —Hard)/ v. Ryle (1829), 9 B. & C. 603. (Contract to weave certain pieces of silk goods.) Lancaster v. Greaves (1829), 9 B & C. 628. (A. contracted to build a wall for a certain price, and within a certain time. ) Ex parte Johnstone ( 1839), 7 Dow. 70-'. (A contract to " print lertain pieces of woollen cotton goods.") Barien v. Berwick (1861), 3 E. & E. 549 ; 30 L. J. M. C. 84. (A person engaged in keeping the accounts of a farm, set- ting the men to work, and lending a helping hand when wanted, &c., not a "servant in husbandry," or "other person.") Under the repealed 20 Geo. II. c. 19 (which ntict' bound under the provisions of the Acts relating to the relief of the jjoor. •' Apprentice to the business of " means '' loaruiu'^' the business of," &e. " Of " indicates the character not of tlie proprietor of the business, but of the business learnt. See Austin on Apprentices, p. 88. Saving Clause. Savin-' of 13. Nothing in this Act shall take awaj- or abridge any local or special special juris- jurisdiction touching apprentices. 2'his Ad shall not apjilt/ to seamen or to apprentices to the sea service. diction and seamen. The words in italics were repealed by the Merchant Seamen (Payment of Wages and Rating) Act. 1880 (43 A: 44 Vict. c. 16), s. 11, whi
  • ly to seamen and apprentices to the sea service aecord- inirlv : but such repeal shall not, in the absence of any enactment to the contrary, extend to or affect any provision contained in any other Act of Parliament passed or to be passed whereby ' workman ' is defined by reference to the persons to whom the Employers and Workmen Act, 1875. applies." " Seaman " in this section means " seaman " as defined by sect. 2 of the Mer- chant Shipping Act, 1854 : Corbett v. reurce, [1904] 2 K. B. 422. A vessel, not propelled by oars, is not the less a "ship" within the meaning of tlie Merchant Shipping Act, 1854, because she is navigated only on a tidal river : Ibid. The plaintiff was one of a crew of two hands employed on board a sprit-sail barge to navigate her in the estuary and upper tidal waters of the Thames. The plaintiff, acting under the orders of the other hand, assisted in navigating the barge, though his main duty was to assist in loading and unloading her : - Ifc/d, that the plaintiff was a " seaman," and was consequently excluded from the operation of the Em- ployers' Liability Act, 1880 : I bid. See lieff. v. Lyiiclt, [1898] 1 Q. B. 61, decided on the similar section (sect. 16) in the Conspiracy and Protection of Property Act, 1875, printed supra. [Section 14 extends the Act to Scotland.] [Section 15 extends the Act to Ireland.] EMPLOYERS AND WORKMEN ACT, 1875. 621 EULES OF 1887 UNDER " THE EMPLOYERS AND WORKMEN ACT, 1875." 1. These Rules may be cited as the Employers and Workmen Rules, 1886, Short title and shall come into operation on the first day of January, 1887. ^encement. 2. The proceedings in relation to any dispute between an emi^loyer and a Procedure, workman bo {sic) commenced under the Employers and Workmen Act, 1875, in a court of summary jurisdiction for the district in which the defendant or one of the defendants dwelt or carried on business, or was employed at the time the cause of action arose, or in which he or one of them happens to be at the time of the entry of the action, and thereupon the same proceedings shall be had, and the same forms maj^ be used as upon a claim for a civil debt under the Summary Jurisdiction Acts : Provided that the summons shall be served four clear days at least before the hearing in manner directed by the said Summary Jurisdiction Acts, or by leaving it with an adult person at the office or place of business or employment of the defendant or one of the defendants: Provided also that no order of commitment shall be made against an appren- tice until he shall have been personally served with a judgment summons. 3. A defendant shall not, except by leave of the court of summary juris- Set-off or diction, on such terms as the coiu-t may think fit, be permitted to set up counter- against the claims of the plaintiff any set-off or counter-claim, unless he shall have served, or caused to be served, by registered post letter or other- wise, two clear days at least before the return-day, a notice thereof directed to the plaintiff at his address as mentioned in the summons, setting forth the particulars of such set-off or counter-claim. Service of any notice by post shall, unless the contrary be proved, be deemed to have been made on the day upon which the letter would have been delivered in the ordinary course of post. . 4. Where disputes between an employer and his workmen are of such a Names of character that the liability of the employer to divers of his workmen depends plM^mtiffs upon circumstances common to a whole class of their claims, the names of ^p^j^ ^.q^. all the workmen whose claims are grounded upon common circumstances mon circum- mav be inserted as plaintiffs in one summons. Where the number of such stances to be •' . ^ . , , „ 1 • , • no 1 1 • i T • iT inserted in one plaintiffs IS large, the name of one plaintiff only may be inserted m the summons. body of the summons, and in such case the names of the other plaintiffs, together with their descriptions and addresses and the amounts of their respective claims, may be indorsed on the summons or added in a schedule thereto annexed. 5. The employer may, at the hearing of any such summons, object that Defendant the claim of any plaintiff included in the summons ought to be separately ^lay object heard and determined, either on the ground that the amount claimed is tiff's^claira'^" disputed, as well as the liability, or as depending on special circumstances, shall be heard The name of any plaintiff, whose claim is so objected to, shall be struck separately, out by order of the court of summary jurisdiction. 6. When the summons comes on for hearing, the case of the plaintiff first Determina- named in the summons shall (unless the court otherwise directs) be heard tiou of first- 622 EMPLOYERS AND WORKMEN ACT, 1875. named plain- tiff's claim to determine the others. Where summons dismissed. Where claimants succeed. New trial. Fees. Costs. Forms. Annulment. and determined, and the claims of all the other plaintiffs who.^e names shall have been included in the summons, and not struck out as in llule o provided, shall abide the result of the case so determined. 7. If the court of summary jurisdiction dismisses the summons, no claim shall afterwards be admitted at the instance of any workman whose name was included in the summons (and was not struck out as in Rule 5 provided) in res])ect of the claim made thereby, luiless h(> shows to the satisfaction of the court that his name was included in the summons without his consent. 8. If the court of s^^mma^y jurisdiction finds in favour of the plaintiff whose case is tried, it shall make an order on all the claims of the plaintiffs included in the summons (not struck out as in Rule 5 pro\nded), and such order shall operate and take effect as if the claim of each workman, whose name may have been so included as a plaintiff in the summons and not struck out, had been separately heard and determined by the court, and an order had been made on each such claim. i». The court of summary jurisdiction by whom any action has been determined ex parte may, at the same or any subsequent court, set aside any judgment so given, and any process thereon, and may grant a new trial on such terms as the court may think fit. 10. The fees to be paid by a person seeking the assistance of the court of summary jurisdiction shall bo those contained in the schedule annexed hereto. 11. The court of summary jurisdiction may, in its discretion, allow any party in respect of any expense he may have incurred in the employment of a solicitor, any sum not exceeding ten shillings where the sum claimed exceeds forty shillings, and not exceeding fifteen shillings where it exceeds five pounds. 12. The forms in force under the Summary Jurisdiction Rules, 1886, so far as the same are applicable, together with the £orms in the schedule hereto, and forms to the like effect, with such variations as circumstances may require, may be used in proceedings under this Act. 13. The rules and forms under the Employers and Workmen Act, 1875, heretofore in use are hereby annulled. (Signed) HERSCHELL. C. Th>' MSth July, 1886. EMPLOYERS AND WORKMEN ACT, 1875. ^23 SCHEDULE. 1. Order rescinding Contract. In the [jcoanty of . Petty Sessional Division of ]. lictween A. B., Plaintiff, and C. D., Defendant. Before the court of summary jurisdiction sitting at It is adjudged that the \_or this] contract [or instrument of apprenticeship] made between the plaintiff and defendant [on the day of 18 ] be rescinded, and that the plaintiff [or defendant] do pay to the sum of pounds, being the whole [or a part] for wages [or damages, or in respect of the premium paid on such instrument of apprenticeship]. Dated the day of one thousand eight hundred and J. P., Justice of the peace for the [county'] aforesaid, (l.s.) 2. Order for the Performance of Contract. In the [county of . Petty Sessional hivision of ]. Between A. B., Plaintiff, and C. D. [and E. F.] Defendant. Before the court of summary jurisdiction at It is ordered that the defendant [C. D.] do perform his contract [of apprenticeship] with the plaintiff, that is to say [setting out the particulars if necessary]. [And that he [or the defendant E. F.] do pay to the plaintiff the sum of for damages]. And the defendant, the said E. F. [or C. D.], being willing to give security for the performance of such contract, the court hereby accepts his security in pounds, with suret in pounds [each] for the performance of such contract as aforesaid [in place of the payment of [£ part of] such damages]. Dated the day of one thousand eight himdred and J. P., Justice of the peace for the [county] aforesaid, (l.s.) 624 EMPLOYERS AND WORKMEN ACT, 1875. 3. Undertaking by Defendant to perform Contract. In the \_connty of . Petty Sessional Division of ]. Between A. B., Plaintiff, and C. D., Defendant. Whereas it having been found bv the court of sinmuary jurisdiction, sitting at on the day of , that the d(;fendant had broken the contract for the breach of which he was summoned, it is ordered that he should give security for the performance of his contract : Now, therefore, I the defendant, and we [or I] his suret , do undertake that the said defendant will perform the said contract, that is to say [setting out the particulars if necessary'\ : And we do hereby severally acknowledge ourselves bound to forfeit to the plaintiff the sum of pounds and shillings, in case the said defendant fails to perform what he has hereby undertaken to perform. [Signed rvhere not taken orally) ('. D., D(>fendant. E. F., i Q ,. Taken before me this day of J. P., Justice of the peace for the [county'l aforesaid, (l.s.) FEES. For entry of every plaint, including summons thereon For order in writing on a plaint _ _ _ - - For every undertaking given by way of security For judgment summons, including hearing _ . - For warrant of distress or order of commitment For summons to witness ------- N.B.— Where the sum claimed exceeds 1/. Os. Od., or the sum in respect of the non-payment of which the summons for or order of commitment or warrant of distress issues exceeds U. Os. Od., an additional fee of one shilling on each fee shall be taken. For mileage in serving or executing process, . ^^^^^ ,,,^,,,,Me cost as nray and for cost of conveying to prison - - ^^^ ^^^^^^^^^^^ ^^^ ^,^^^^,^_ For affidavit and postage - - - - s. d. 1 2 2 1 2 1 625 CHAPTER XIV. STATUTORY LIABILITY OF EMPLOYERS. I. EmployerH' Liahmty Act, 1880 (43 ^ 44 Vict. c. 42). II. Lord CawphcW^ Act (9 Sf 10 Vict. c. 93). III. Workmen's Compenmtiou Ad, 1906 (6 Edic. 7, c. 58). I. Mnplopers' Liabitit// Act, 1880. The Employers' Liability Act, 1880, which has been continued annually since the end of 1887 (see sect. 10), is untouched {a) by the Workmen's Compensation Act, 19U6. Before dealing in detail with the interpretation of the Act, some propositions which have been established regarding it may be stated : — (1) That a contract by which any or all of the benefits of the Act are waived for a consideration is binding on the parties thereto and their legal representatives ; (2) That an infant will be bound by such a contract if it be for his benefit ; (3) That an employer has an insurable interest under the Act, and may enter into a valid contract of insurance against the liability thereunder ; (4) That the Act places the workman in the same position as a licensee lawfully on the premises of the employer ; (5) That contributory negligence and acceptance by the work- man of the risks from which he suffered are defences available to the employer ; (6) That the Act applies only to persons employed in manual work ; (7) That no action will lie against the executors of an employer — actio personrtiis moritar cion persona {«((). [a) Save in the matter of appeal in Scotland : see sect. 6 of the Employers' Liability Act, 1S80, and the note there, at p. 639, infra. {(Ill) (iiJh'tt V. Fairhank (1887), 3 T. L. R. 618. Cf. Workmen's Compensation Act, 1906, M. 13, tlu; defiuitiou of " employer." M. S S 626 STATUTORY LIABILITY OF EMPLOYERS. Contrndvnrj out of the Ad. Many workmen have contracted themselves out of the Act. Such contracts are valid (/>). It is not, as already explained (i (1882), 9 Q. B. D. 357, 366. [p) (1876), 1 C. P. D. 16L See Howard v. Bennett (1888), 58 L. J. Q. B. 129. {q) Esher, M. R., in Thomasy. Qiiarter- mainr (1887), 18 Q. B. D. 685, 688; A. L. Smith, J., in JFeblin v. Ballard (1886), 17 Q. B. D. 122, 125, 127. (r) See note (c/'i, supra. (s) In Smith V. Baker, [1891] A. C. 325, Lord Her.schell discnsses Thomas v. Quartermaine ?iii follows (p. 36(i) : "As far as appears, this was amongst the ordinary duties of his employment, and if it was assumed that there was a breach of duty on the part of the employer in not having the vats fenced, as it obviously was, since if there had been no breach of duty it would not have been necessarv to inquire whether the maxim volenti non Jit injuria afforded a defeuce, it seems to me that it must have been a question of fact, and not of law, whether the plaintiff undertook the empk)yni(nt with an api)reciation of the risk which arose on the occasion in question from the particular nature of the work which he had to perform. If the effect of the judgment be that the mere fact that the plaintiff, after he knew the condition of the premises, continued to work and did not quit his employ- ment afforded his employer an answer to the action, even though a breach of duty on his part was made out, I am unable, for the reasons I have given, to concur in the decisitm." The first of these criticisms is the same as that made by Esher, M. R., in Yarmouth v. France (19 Q. B. D. 647, 654), when explairdng his dissent from the decision in Thomas v. Quartcrmaine. The answer is clear — there was no assunij)tion of a breach of duty on the part of the employer in Tliomas V. Q'lartermaine ; it was exactly what was not assumed. The plaintiff, who had to make out a prima facie case of negligence, never did so ; he was proved to be volens. There was no evidence of negligence to go to the jury. To the second (;ritici.sm the answer is that Thomas v. Quartcrmaine did not decide anj'thiug of the kind. Smith v. Baker, 'Thomas v. Quartermainc, and I'arihouth v. France make it clear that there are a number of elements in the state of mind known to the law as volens, of which mere continuance in service is only one. Sec the remarks of A. L. Smith, J., upon Smith v. Baker in GreenhaUjh v. Carnarvon Coal Co. (1891), 8 T. L. R. 3L And see Fmer v. Billiard, King S; ^'«- (1897), 14 T. L. R. 57; Williams v. Birmingham Battery and Metal Co., [1899] 2 Q. B. 328. [t) Per Fry, L. J., in Thomas v. Quartcrmaine, I. c, at p. 700. employers' liability act, 1880. ^2^ advantageous as, but no better than, the rest of the world, who use the master's premises at liis invitation on business" {ii). In what is the locus rlaHsicus on the subject (x), Bowen, L. J., remarked : — It is no doubt true thiit mere knowledge on the part of the injured person which will i)revent him from alleging negligence against the occupier must be a knowledge under such circumstances as necessarily lead to the conclu- sion that the whole risk was voluntarily incurred. The maxim, be it observed, is not scienti non fit injuria, but volenti. There may be a perception of the existence of the danger without comprehension of the risk, as when a workman is of imperfect intelligence, or, though he knows the danger, remains imperfectly informed as to its nature and extent. There may, again, be concurrent facts which justify the inquiry whether the risk, th(jugh known, was really encountered voluntarily. The injured person may have had a statutory right to protection, as when an Act of Parliament requires machinery to be fenced. No rule can be laid down as to the circumstances in which consent will be inferred. If the occupation is necessarily dangerous, an agreement to accept the risk will be inferred ; but that is a question of fact, not of law (//). The master may also set up the following defences : — (A) Contributory Negligence (s). By contributory negligence is meant that the plaintiff " himself has contributed to the accident in such a sense as to render the defendant's breach of duty no longer its proximate cause " {a). The burden of proving such contributory negligence is on the defendant {h) . (B) That the servant who was negligent was not acting within the scope of his duties or his authority (r) . (C) That the injury was due to the wilful act of the servant who caused it (d). (D) Act of aod. {u) Per Bowen, L. J., in Thomas v. supra, and remarks on sect. 2, aub- Quartennaine, I. c, at p. 693. sect. (3), of the Act, infra. ix) Tkomasy. Quarfermaine, I. c-p. 696. («) Thoma^ v. Quartermaine, L c, per , ; T- jt. c /ioc7\ lo Boweu, L. J., at p. 694. Q. B. D 647, per Lmdley, L. J., at ^^.^^^.^^ ^^^ ^^ ^^gg^^^ 12 A. C. 41 ; pp. 609—661. ^^.^^^■^;^ ^ ^;^,^^;j Eastern Ry. Co., [1896] (s) Stuart V. Evans (1883), 49 L. T. 1 Q. B. 178. (N. S.^ 138; Weblin v. Balhird (1886), [c) See Chap. XXIV., swjjra. 17 Q. B. D. 122. See Chap. XXVI, \d) See Chap. XXV., *«;;>•«. 630 STATUTORY LIABILITY OF EMPLOYERS. (Ej That tilt" ])laintiff was not a " workman " within the Act (sect. 8). (F) That no notice of injui'v was given (sect. 4). (G) That defective notice of injury was given (sect. 7). (H) That the case is not within sect. 1 of the Act, as qualified by sect. 2. (I) lies judicata, i.e., where both a statutory and common law action are possible (sect. 2, sub-sect. (1)). (K) That the workman has contracted out of tlie Act. (L) That the injury was not caused by any of the matters mentioned in sect. 1. I))>^iir((nce. Employers have an insurable interest in tlie liabilities under tlie Act, and contracts of insurance against liabilities thereunder are ^'alid. An insurer who pays an insured is, as a rale, subrogated to the remedies of the insured. (1) If the insurer indemnifies the latter for claims made by a workman injured by reason of the negligence of a foreman, what is the position of the insurer ? The employer may sue his foreman ; or the insurer, after payment to the insured, may, in the employer's name, do so (f). (2) If the insurer indemnifies the insured against claims made under sect. 1, sub-sect. (1), of the Act {i.e., in respect of defects in the condition of works, machinery or plant), what is the position ? The question is answered by the decision of the Court of Appeal in Mou-hrai/ v. Merri/iveatJier ( /'). The defendant, a shipowner, supplied the plaintiff, a stevedore employed to unload liis ship, with the winches, cliains, and other gear necessary for the work, thus impliedly warranting them to be reasonably fit for the purpose. A chain broke. A workman of the plaintiff's who was thereby injured brought an action under the Act against the plaintiff, his allegation being that the defect in the chain miglit have been discovered by reasonable care. The plaintiff settled the claim — properly, as was admitted at the trial — for 125/., and then sued the defendant for that sum for breach of warranty. The defendant contended that the damages were too remote. The Court of Appeal, refusing to follow the Scotch case of Ovington v. Mc Vicar {(/) , held that the defendant wa - liable ; the damages {e) Ijeake's Laiv of Contracts {Srded.), {i these facts the machine was held by Coleridge, C. J., and Esher, M. R.. sitting as a Divisional Court, to be ''defective" ; Coleridge, C. J., saying: — " Tlie governing princi|.le, in my opinion, is that v here a machine is defective with reference to danger, and such defect is within the knowledge of the employer, he is then liable." This decision may be explained by the fact that a child cannot be expected to take that reasonable care, the absence of which disentitles a workman to recover. See Tate V. Latham and Son, [1897] 1 Q. B. 502 (C. A.): a circular saw kept in motion without its guard held '' defective," as being so at the moment of the injury. In Walsh v. Whitc/cg, nbi sup., Esher, M. R . maintained the second view : — " I am prepared to say that, if a carefid consideration would show a master that the employers' liability act, 1880. 633 machine was dangerouH to the workman using- it, even though that machine could not be improved upon, it is negligence on the part of the master to use for his profit a maidiino which is dangerous to his wi.rkman, and, if he does use it, he can only do so upon the terms of being liable to pay compensation to the workman, if he is thereby injured." An earlier passage in tbis judgment shows that Lord Esher was appU'iug the principle of such cases as Jinvn v. Frsfinioi/ lb/. Co. (18G8) L. R. 3 Q. B. 7,33,' and I'mcdl v. Fnll (1880), o Q. B. D. 597. where the emission of sparks by a locnnnotive engine had caused damage ; a principle akin to that of Fletcher v. Rylands (186H), L. R. 3 H. L. 330. In this view, negligence is imma- terial ; no care on the part of a master who supplies dangerous machinery can prevent his being liable. No reason is given why the duty of employers in this respe(;t at Common Law should be eidarged under the Act, which " is not directed against dangerous machines but asj-ainst the neglitrence of employers " (/). In liiddh V. linrt (1907). 23 T. L. R. 262, the Court of Appeal held that there was a duty cast upon an employer in respect of borrowed plant to see that it was reasonably fit for the purpose to which it was applied. In McGiJfiH V. Pnlnur's Shipbin/diiir/ (Jo. [k), the question was whether a substance projecting into the roadway was "a defect in the condition of the way." A Divi- sional Court held it was not. Stephen, J , refused to stretcli the term " so as to include obstacles lying on the way, which obstacles do not in any degree alter the powers of the way, or alter its fitness for the purpose for which it is generally employed, and cannot be said to be incorporated with it." At Commtm Law an employer is liable for injury caused by defective arrangement or system of working, " as much .... as if he had supplied defective machinery "(/) . The .same prin- ciple would appear to apply under the Act: Sinilh v. Baker, [1891] A. C. 325, 354 ; see Stanton v. Scrutton ^- Co. (1893), 9 T. L. R. 23 i. The meaning of the word "ways" was considered in TJ^illctts v. JFatt c^ Co., [1892] 2 Q. B. 92, and L rd Esher there defined it thus; "The course which a workman would, in ordinary circumstances, take in order to go from one part of the shop, where a part of the business is done, t > another part where business is done, where the business of the employer requires him to do so." See Bromlii/ v. CavetnU.sh Spinning Co. (1886), > T. L. R. 881. In Howe v. Mark Finch df- Co. (1886), 17 Q. B. D. 187, a warehouse wall, in (tourse of construction, was held not within the term "works" in this section, as not being "connected with or used in the business of the employer"; Mathew, J., intimating that the same would hold good of machinery " brought into a place intended to be used." A broken-down machine, in the course of removal to a corner of the works, is within the section : Thompson v. Citi/ Glass Bottle Co., [1902] I K. B. 233. An old house in the occu- pation of a builder, for purposes of demolition, may be said to be his "works" : Brinuilgan V. Ruhiiison, [18(^)2] 1 Q. B. 314. The phrase "stock in trade " was struck out of the bill lest farmers should be made responsible for the vice or other defects of their horses. The decisions upon the Act have defeated the pre- caution. In Ydrmonth v. France [m), a horse belonging to a wharfinger, and used {j) Per Lopes, L. J., in Walsh v. WUletts v. Watt ^- Co., [1892] 2 Q. B. Whiteley {\^»'6),-l{ Q. B. D. 371,380. 92 (catch-pit with removable lid in See Kiddle v. Lovett (1885), 16 Q. B. 1). workshop where men passed to and fro; 605, 610 (comperent contractor em- lid temporarily removed; plaintiff fell ployed to fix a painting- stage ; stage in ; held, no defect in condition of way, gave way ; no evidence of negligence) ; but negligent user of it) ; Gill v. Thorni/- JUoorcv. Ginison (1889), 58 L. J. Q. B. croft (1894), 10 T. L. R. 316 (no rails 169 (foreman takes word of competent on a stationary barge used as a passao-e ; contractor that wall is safe ; wall tabs ; held, a defect in plant), no evidence of negligence) ; Digby v. ,« -d r^ .l ^ • ^ East Ham Urban Dfstnct Council (1896), ({) J^"! ^ff"?^?^^^^/^•' "^ Bartonshill 13 T.L. R. 11 (coUectionof gasinsewer! ^- -'^'^"''-' ^^^■'^)' ^ ^^^^^l- ^"0- ^l"- ventilation pipes blocked ; no ropes used hn) (1887), 19 Q. B. D. 647. See or tests applied, but no evidence that Huston v. Edinburgh Tramwai/s Co. such precautions were ordinarily taken ; (1887), 14 R. 621 (a horse held to be no evidence of negligence) . "plant"); Carter v. Clarke (1898) 14 {k) (1882), 10 Q. B. D. 0, foUowed in T. L. R. 172 (a ship held to be i^lant, so Pegramv. Dixon (i886), 55 L. J. Q. B. as to make coal-shippers liable for the 447 ; Wood V. Dor rail (l88o), 2 T. L. R. ab.sence of ventilaiurs). See the defini- 550 (unfenced aperture to a staircase is tion of "plant " in the Railway Act a defect in the condition of the ways) ; 1867, s. 4. 634 STATUTORY LIABILITY OF EMPLOYERS. by him for the ptirpost's of his business, was held to be "phmt," so that the iiihereut viciousness of the auimal was " a defect in the condition of the pUint," within the Act. Liudley, L. J., in that case (at p. 658) held " phmt" to include " all goods and chattels fixed or moveable, live or dead, which he keeps for per- manent employment in his business." So far as sect. 2. sub-sect. (1), wliich is to be read with sect. 1, sub-sect. (1), relates to the negligence of the employer, it re-states the Common Law. This is the only instance where the workman has a remedy both at Common Law and under the Act. In Mioulaij v. Thamex Ironworks («), a Divisional Court refused an application for & certiorari to remove a case brought by a workman under sect. 1, sub-sect. (1) of the Act on the ground, among others, that he de>ired to consolidate the action with one brought by him in tlie Superior Court to recover damages for the same injury from the defendants on their Common Law liability. Sect. 5 showed, said Manisty J. in that case, " that it was not intended that there should be two heads of compensation for the same cause of action. On the contrary, the ordinary principle is that if there is a statutory proceeding for a particular cause of action, and compensation is recovered, although limited in amount, an action at Common Law for hirge damages shall not be maintained." In Janix v. li'esting- hoiine lirakr Co., Times Newspaper. Feb. 1, IS'JiS, p. 10, Russell, C. J., expressed the opiiiion that an action would lie under this Act in respect of what was also an offence under the Factory Acts. Sec sect. .5, infra. The latter words of sect. '2, sub-sect. (1), alter the Common Law, as laid down in Wilson v. Merry (1868), L. R. 1 Sc. App. 326, which made the employer liable only in the case of his having chosen an incompetent foreman. In Moore v. Gimson (1889), 58 L. J. Q. B. 109, Hawkins, J., rested his judgment partly upon the fact that there was no evidence that the foreman in that case was " entrusted with the duty of seeing that the ways, W(.rks, machmery, or plant were in proper condition." See Tate v. Latham, [1897] 1 Q. B. 502. (2) By reasou of the uogligeuce of any person iu the service of the emploj'er who has any supei'intendence entrusted to him whilst in the exercise of such superintendence ; or Sect. 8 defines " a person who has superintendence entrusted to him " as " a person whose sole or principal diity is that of s\iperintendence, and who is not ordinarily engaged in manual labour." " Ordinarily " appears to refer to the duties of the particular man, not to the (uistom of the trade or the ordinary course of business. See K' Uitrd v. Eoakc, cit. infra. The chief difficulty which has arisen here is whether the injm-y to be within the statute must have been caused by an act of negligent superintendence. In Shaffers V. 'lite General Steam Naviyation Co. (1883), 10 Q. B. D. 356, a man who was con- trfilling the movements of a crane by means of a guy-rope, while giving orders for the hoisting and lowering of sacks, was held to be not within the definition. See Kellard v. Jtooke (1887), 19 Q. B. \). 5^5 ; (1888), 2l Q. B. D. 367. In (hhorne v. Jackson (1883), 1 1 Q. B. D. 619, a foreman, who negligently handed the jjlaintiff a plank, calling him to take it, was luild within it. The distinction though fine is real ; in the former case a negligent act of manual labour, in the latter a negligent order, caused the iniury. These decisions chiefly turned on the definition in sect. 8 : but they are authorities for the proposition that the negligence must consist in an act of superintendence. In any other view, the words in sect. 1, sub-sect. (2), "whilst in the exercise of such superintendence" seem to have little meaning. See, however, as to the Scotch decisions, Sweeney v. McGilvray (1886), 24 Sc. L. R. 91. (3) By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform, and did conform, where such injury resulted from his having so conformed ; or («) (1882), 10 Q. B. D. 59. See the remarks on sect. 6, infra; and see sect. 1, sub-sect. (2) (b) of the Workmen's Compensation Act, 1906, infra. employers' liability act, 1880. 635 This sub-sectiou, whi(;h is wider than that which precedes it, makes a consider- able change in the Couinion Law ; the person friving the order may be a fellow- workman : Milhcard v. Midtvnd Rij. Co. (1884), 11 Q. B. D. 68 ; Ihlun v. Anderson (1886), 12 R. 804 ; though he must be possessed of authority : Howard v. Bennett (1888), 60 L. T. (N. S.) 152. The order need not be express; it may be implied from the ordinary course of business: Mi/hcard v. Midhnid Iti/. Co., uhi sup. See remarks of Esher. M. R., in KcUard v. Ruokc (1888), 21 Q. B. D. 367, 36'J. The obligation to conft)rm to tlie order is part of the cause of action, and it would seem that an order given contrary to the rules and bye-laws of the business would not be within the sub-section ; a Divisional Court so held in Bunker v. Midland Rij. Co. (1882), 47 L. T. (N. S.) 476. But with similar facts before it, a Divisional Court decided in favour of the plaintiff in Murley v. Oshorn (1894), 10 T. L. R. 388. It is difficidt to understand this decision. Bunker's case was mentioned in the argument. Must the order itself be negligent and the conformity to that negligent order the immediate cause of the injury ? It need not. In Wildx. Wayyood, [1892] 1 Q. B. 783, Lord Herschell observes (at p. 789) : " It is not necessary to endeavour in the present case to determine or lay down any general rule as to the construction of this section beyond this, that I am quite clear it is not limited to an injury arising from an order "which order is negligent in itself. . . . That is all I lay down as re- gards the construction of the section, beyond this : that I do not think it essential to show that the conformity to the order was what has been called the Cdu.sa cansanx of the injury. The negligence must be proved, and if you prove the negligence, then it is sufficient if, in addition to proving that, you also prove that the injury resulted not from the negligence alone, but from the negligence and the conforming to the order." Liudley, L. J., in the same case (at p. 793) puts it thus: "Those two things ai-e .'«o connected that it is impossible to say that the injury was not caused by those two things, viz., negligence of the person giving the order, and con- formity with the order." The remarks of Coleridge, C. J., on this point in Howard V. Bennett (1888), 60 L. T. (N. S.) 152, are disapproved. (4) By reason of the act or omission of any pei-son in the ser\dce of the employer done or made in obedience to the rules or bye-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; or This must be read with sect. 2, sub-sect. (2), which forbids compensation " under sub- sect. (4) of sect. 1, unless the injury resulted from some impropriety or defect in the rules, bye-laws, or instructions therein mentioned, provided that, where a rule or bye-law has been approved or has been accepted as a proper rule oi- bye-law by one of Her Majesty's Principal Secretaries of State, or of the Board of Trade, or any other de[iartment of the Grovi-rnmeut under or by virtue of any Act of Parliament (o), it .shall not be deemed for the purpose of this Act to be an improper or defective rule or bye-law." Sect. 1, .sub-.sect. (4), is obscui-e, and it is made more so by sect. 2. sub-sect. (2). The first part of the f..riner sxib-section contemplates the case ot A. doing, or not doing, something in obedience to the rules or bye-laws of the employer B., and ('., a work- man, being thereby injiu-ed. A stranger injured in such circumstances could, it is conceived, recover if the injury were the natural consequence of such act or omission. But the statute adds two qualifications to a workman's right of action : The injury must result from some impropriety or defect in the bye-laws (perhaps only another wav of saying that it must be the natural consequence of obedience to the' rules or bye-laws) ; secondly, an improper or defective rule or bye-law will, for the purpose of the Act, be proper and not defective if it be approved or accepted as stated in .sect. 2, sub-sect. (2). This proviso makes the position of the workman under the Act wor.se than it is at Common Law, according to which an employer would be answerable for accidents due to defective rules or bye-laws which he had negligently drawn up. See I'osc v. Lancashire i- Yorkshire Ky. Co. (1858), 2 H. •!>: N. 728. (o) £'.^., Petroleum Act (34 & 35 Vict. plosives Act (38 & 39 Vict. c. 17), c. 105), s. 4; Coal Mines Regulation ss. 35 — 37; AJkali Works Regulation Act (50 & 51 Vict. c. 58), ,«s. 51—57 ; Act (44 & 45 Vict. c. 37), s. 20 ; Factory Metalliferous Mines Regulation Act and Workshop Act, 1901 (1 Edw. VII. (35 & 36 Vict. c. 77), ss. 23—30 ; Ex- c. 22). 636 STATUTORY LIABILITY OF EMPLOYERS. The second part of sect. 1, sub-sect. (4) , mentions " partieulai" instructions." This may mean a mere repetition of the orders of tlie employer ; the person delej^ated bein>i- (mly the mouthpiece of the employer. In this view, it is conceived, the Act merely repeats the Common Law. Or " 2)artieular instr\ictions " may mean instruc- tions given hy one who is entrusted with authority to use his discretion in giving' instructions on a particular occasion, in which case the sub-section apparently deals only witli instances of the rule laid down in sect. 1, sub-sect. (3). In practice this sub-section is rarely made the foundation of a claim. (5) By reason of the negligence of any person in the sci-vice of the employer who has the charge or control of any signal, points, locomo- tive engine, oi- train upon a railway, the workman, or in case the injury results in death, the legal personal representatives of the work- man, and any persons entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer, nor engaged in his work. In Cox V. Great Weatirn Ry. Co. (1882), 9 Q. B. D. 106, a Divisional Court held that a jury was right in finding, as a fact, that H., a "capstan man," in the employment of the defendants, that is, a man, who by means of a capstan, to which motive power was imparted by a fixed hydraulic engine, could put a train of trucks in motion, was "in charge" of a train. See Hatjuler v. Great Western Ry. Co. (1881), 72 L. T. Jo. 120. A man who, working under an inspector, <'.leaned and oiled the wires, points and locking-gear, was held not to have "charge" or "control" of the points: Gibbs v. Great Western Ry. Co. (1883), 11 Q. B. D. 22 ; (1884), 12 Q. B. D. 208. In McCord v. Cammell ^- Co., [1896] A. C. 57, F., an engine-driver, was detaching and taking, one by one, a line of trucks to a certain point, while H., the fireman, with the acquiescence of F.. "scotched " the remaining trucks, which were standing upon an incline. Owing to defective " scotching," one of the tru(!ks ran down hill and killed the plaintitf's husband. The House of Lords held, that either H. or F. or both of them, had "the charge or control" of the train within this sub-section. The tendency of the decisions is against giving a technical construction to the terms in this sub-section. A steam crane fixed on a trfdley, and propelled by steam along a set of rails is not a " locomotive engine": .Uarp/iy v. Wilson (1883), .'52 Ij. J. Q. B. 524. In McCord \. Cammell S^- Co., nbi sitpta, a line of trucks, left without an engine, was held to be " a train " ; Lord Halsbury, L. C, saying (at p. 64) : " I .should think, speaking in a general way, that the Legislature meant that a locomotive engine by itself, or anything that was drawn along a railway, or was in course of being drawn along a railway by that locomotive engine, .sliould be included in ' a train.' I doubt very much whether it would depend on the immber of carriages or the number ot vehicles going upim wheels which the locomotive was taking along the railway. I should think the Legi.sla ture intended a very wide scope to be given to the use of these woi-ds." A line of trucks without an engine is " a train " : Cox v. Great Western Ry. Co., ubi sup. The term " railway" is not confined to railways made or used b)' railway com- panies : Doughty \. Fi rl>a»k {18SS], 10 Q. B. D. 358. Whether the term includes tramways has not yet been de(!ided ( ^y) . As defined in Webster and Latham's Johnson, " railway " would include a tramway. The objection to this view is that railways and tramways have been dealt with by Parliament in different Acts; that in the General Tramway Act (33 & 31 Vict. c. 78, .ss. 25 and 26), "tramway" is used in contrast to railway ; that the reference in the sub-section to " loctmiotive engine " is against this view ; and that the Legislature obviously intended in the Employers' Liability Act to deal .specially with railwaj^s (.sect. 8). {p) In Fktcher v. London United gineering work " in sect. 7, sub-sect. (2), Tra»iuay.i, Ltd., [1902] 2 K. B. 269, the of the Workmen's Compensation Act, Court of Appeal decided that an elec- 1897, though not within the definition trical tramway was within the term of " i ail way " in the same section, "railroad" in the definition of "en- employers' liability act, 1880. 637 2 A workman shall not be entitled under tlii.s Act to any right of com- Exceptions to ,..„,, • i.i,„i amendment pensation or remedy against the employer m any of the following cases . that ^j j^^^ is to say — (1) Under sub-sect. 1 of sect. 1, unless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the employer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition. See notes on sect. 1, sub-sect. (1), supra. (2) Under sub-sect. 4 of sect. 1, unless the injury resulted from some impropriety or defect in the rules, bye-laws, or instructions therein mentioned ; provided that where a rule or bye-law has been approved or has been accepted as a proper rule or bye-law by one of Her Majesty's Principal Secretaries of State, or by the Board of Trade, or any other department of the Government, under or by virtue of any Act of Parliament, it shall not be deemed for the purposes of this Act to be an improper or defective rule or bye-law. See notes on sect. 1, sub-sect. (4), supra. (3) In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give, or cause to be given, information thereof to the employer or some person superior to himself in the service of the emploj'er, unless he was aware that the employer or such superior ali'eady knew of the said defect or negligence. At one time it was thought that, while taking away the defence of voktiti nvn Jit injuria, this sub-section gave the master a new statutory defence : WMm v. Ballard (1886). 17 Q. B. D. 122. But the majority of the Court < f Appeal decided in Thomas v. Qxarlmuaine (1S87), IS Q. B. D. 68,t, that the object of the sub- section was to limit the master's liability under sect. 1 by makiug it obligatory for the workman tu give information ; that the defence of volenti mm Jit injuria remained intact ; that the cases to which the 8ub-8ection applied were cases of defects of which the workman is coguisaut, but the risk of which he has not assumed, or of defects under special statutory provisions as to safety. •' Negligence " in this sub-sectiou must mean a habit of negligence. There is no definition of " superior," but it does not mean, it is submitted, a person superior in the sense of haviusr higher wages. compensation. 3, The amount of compensation recoverable under this Act shall not Limit of sum exceed such sum as may be found to be equivalent to the estimated earnings, recoverable as during the three years preceding the injury, of a person in the same grade employed during those years in the like emploj-ment and in the district in which the workman is employed at the time of the injury. This section fixes a limit. It does not lay do'wn a measure of damages, and earnings made in overtime work for an employer other than he in whose service the workman has been injured may be taken into consideration: Bortick v. Head, Wriyhtson ^- Co. (1885), 53 L. T. N. S. 909. lu Xoel v. Redruth Foundry Co., [1896] 1 Q. B. 4.)3, there was evidence that the pLiiutiff, an apprentice, earning OS. a week at the time of the accident, would in the subsequent vear be earning 14.S'. to Ift.v. a week a-s a workman, and on this latter bii.sis the County Court judge assessed his compensation. A Divi^ional Court reduced it, assessing it on the basis of his then earnings as an apprentice ; addiug that such things as food or clothing, of a 638 STATUTORY LIABILITY OF EMPLOYERS. coraput;iblo monoj' value, raifrht bo taken into account, but not the value of the tuition. See as to the principle of (;omputinns contained in sects. 120, 129, 130 and 132 of the County Courts Act, 1888. Sfct. 62 of that Act does not apply to actions under the Employers' Liability Act, 1880: Reg. v. Judge of City of London Court (1885), 14 Q. B. D. 'J05, where Brett, M. R., says: "It is not merely because of the amount claimed that they (the judges) are to remove the case from the County Court ; it is only if some new question of law is raised or some very difficult question in the particular case, as, for instance, as to the way in which the machinery cause;! the injury. The removal is in the discretion of the judge, and I should think in his discretion he would, except in very peculiar circumstances, leave the case in the County Court." See Bates v. Warner (1889), 5 T. L. R. 582 ; Potter v. Great Western Collier if Co. (1894), 10 T. L. R. 380 : Mnnday v. Thames Ironworks Co. (1882), 10 Q. B. D. 59. See note on this case on p. 634, t^upra. There seems no good reason why a claim should not be made alternatively under the statute and at Common Law. Whether an action at Common Law can be maintained, one under the statute having failed, or under the statute one having failed at Common Law, must depend on the cir- cumstances of each case, as te.sted by the principle of res judicata : Lungmead v. Maple (1865), 18 C. B. N. S. 255. There are special provisions on this point in the Workmen's Compensation Act, 1906, s. 1, sub-s. 4. The special rules rejrulatinu: procedure under this Act are contained in Ord. XLIV. of the County Court Rides, 1903 and 1904, printed itfra. Subject to those rules, the ordinary procedure of the Court applies. The House of Lords decided in Smurthwaite v. Hannay {q), that neither Ord. XVI. r. 1, nor any other of the Rules of the Supreme Court, pei-mitted the joinder of .several plaintiffs suing on several causes of action. Ord. XVI. r. 1 (R. S. C.) was identical with Ord. III. r. 1 (County Court Rules, 1903). In Carter v. Eigby ^- Co., [1896] 2 Q. B. 113, it was argued that, in spite of that identity, the decision in Smurthivaite v. Hannay, uhi sup., did not apply to actions under the Employers' Liability Act, having regard to rr. 18 and 19 of Ord. XLIV. (County Court Rules). The argument failed. Incon- sequence of the remarks of Russell, C. J., in Carter v. Riyhy. uhi sup., Ord. XVI. r. 1 (R. S. C.) and Ord. III. r. 1 (County Court Rules) were altered to their present form. There is the same right of appeid under this Act as in ordinary County Court actions : Vide County Court Act, 1888, s. 120. " In Scotland any action.^'' &c. By virtue of sect. 14 and para. (17) (b) of Schedule II. of the Workmen's Compensation Act, 1906, this paragraph is, in cases of injiu-ies arising out of and in the course of the workman's employment, repealed, (q) [1894] A. C. 494. See Peninsular, ^c. Navigation Co. v. Tsune Kijima, [1895] A. C. 661 ; Stroud v. Lawson, [1898] 2 Q. B. 44. 640 STATUTORY LIABILITY OF EMPLOYERS. and there is substituted for the rig'hts thcreuuder a rijrht of appeal by means of case stated solely on questions of law to the Court of Session, with an ultimate right of appeal to the House of Lords. See the notes on sect. 14 of the Workmen's Compensation Act, 1906, infra. Mode of 7. Notice in respect of an injury under this Act shall give the name and serving notice address of the person injured, and shall state in ordinary language the cause of the injury and the date at which it was sustained, and shall bo served on the employer, or, if there is more than one employer, upon one of such employers. The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. The notice may also be served by post by a registered letter addressed to the person on whom it is to bo s(>rvcd at his last known place of residence or place of business ; and, if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post; and, in proving the service of such notice, it shall be sufficient to prove that the notice was properly addressed and registered. Where the employer is a body of i)erson8 corporate or unincorporate, the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or, if there be more than one office, any one of the offices of such body. A notice under this section shall not be deemed invalid hy reason of any defect or inaccuracy therein, xmlcss the judge who tries the action arising from the injurj' mcmtioued in the notice shall be of opinion that the defendant in the action is jirejudiced in his defence by such defect or inaccui-acy, and that the defect or inaccuracy was for the pur2)ose of misleading. As to sufficiency of " address," see lirh/t/s v. Ross (18(i8), L. R. 3 Q. B. 268. In Clarkson v. Musgrave (1682), 9 Q. B. D. 386, where the notice was alleged to be defective. Cave, J., said: — "The notice is not required to state the cause of action, but only the cause of injury." In McGoivun v. Ttnicrrd. Arrol if Co. (1886), 18 R. 1('38, it is pointed out that the effect, of registration is to raise a presump- tion of receijjt ; though it leaves it open, in case of no registration, for the plaintiff and defendant to prove actual receipt or non-receipt respectively : see Adams v. Nightxmjalc (1882), 72 L. T. N. S. 424. The following form of notice is suggested by the authors of the Yearly County Court Practice : — "To Mr. John Smith, of Street, Bristol, Builder. Please take notice that on the day of , 1882, George Jones, of No. 1, George Street, in the parish of , in the City of Bristol, was killed [or was injm-ed] by a defective rope, forndng part of your plant, ])reaking and causing him to fall to the ground from a great height, while he was working at [the hou.ses iu course of erection by vou] in Narrow Wine Street in Bristol aforesaid. Dated this day of , 1882. Yours, &c., Jank Joxes, Wife of \(ir ' Solicitor for,' or ' on behalf of '] the said George Jones." The first four paragraphs of this section are substantially reproduced in the Workmen's Compensation Act, 1906, s. 2, sub-ss. (2) - (4). Cf. the 2)rovisioiis of the Workmen's Compensation Act, 1906, 8. 2, sub-s. (1), as to defect or inaccuracy iu the notice. employers' liability act, 1880. 641 8. For tho purposes of this Act, unless the context otherwise requires — Defiritions. The expression "person who has superintendence entrusted to him" means a person whoso sole or principal duty is that of sup rintendence, and who is not ordinarily engaged in manual labour. See the note on sect. 1, 8iib-sect. (2), supra. Tho expression "employer" includes a body of persons corporate or unincorporate. Cf. tlio dofiuition of "employer" in the "Workmen's Compensation Act, 1906, 8. 13. The expression "workman" means a railway servant and any person to whom the Employers and Workmen Act, 1875, applies. See the notes on sects. 10, 12 and 13 of the Employers and Workmen Act, 1875, supra, and on " Workmen to whom the Act applies " at p. 631, supra. 9. [Repealed by Statute Law Revision Act, 1894.] Commence- 10. This Act may be cited as the Employers' Liability Act, 1880, and shall ment of Act. continue in force till the thirty-first day of December, one thousand eight Short title, hundred and eighty-seven, and to the end of the then next session of Parliament, and no longer, unless Parliament shall otherwise determine, and all actions commenced under this Act before that period shall be continued, as if the said Act had not expired. The Act has been continued annually since the date of its expiration. COUNTY COUET EULES, 1903 AND 1904. ORDER XLIV. The Employers' Liability Act, 1880. Service of Summons. 1. A summons in an action brought under the Employers' Liability Act, Time for issue 1880, shall in order to ensure its service be delivered to the bailiff, where it ^i^*^ service of is to be served in the home district thirtv-five clear days at least, and where ** °^^' ." . "^ 43 & 44 Vict it is to be served in a foreign district thirty-eight clear days at least before ^ ^2 the return day, and shall in either case be served thirty clear days at least before the retui'n day thereof. 2. Particulars of demand shall be filed by the plaintiff at the time of the Particulars to entry of the i)laint, whatever the amount claimed may be ; and a copy thereof be filed, shall be forthwith sent to tho judge. 3. The particulars of demand shall state in ordinary language the cause What parti- of the injury, and the date at which it was sustained, and the amount of cnlars of compensation claimed, and where the action is brought by more than one 'i®'^^^*^ *^*1^ plaintiff, the amount of compensation claimed by each plaintiff ; and whore M. T T 64] 1 Q. B. 481. A man ruptures himself, lifting planks which are stuck together by rain and frost: Timmins v. Leeds Forge Co. (1900), 16 T. L. E. 521; a collier dies of blood-poisoning caused by the penetration of a piece of coal into his knee : Thompson v. Ashiinjfoii Coal Co. (19('l), 17 T. L. R. 345; the muscles of the back are lacerated by the strain of an extra lift given to get a beam on to the shoulder : Boardimi) v. Scott and Whiticotih, [1902] 1 K. B. 43 ; all these are injuries by " accident." With regard to industrial diseases due to the nature of the em- ployment, this Act has an entirely new set of provisions : see sect. 8, and the Third Schedule. The decisions in Walker v. LilleshaU, [1900] 1 Q. B. 488, and in Steel v. Cammell, Laird ^' Co., [1905] 2 K. B. 232, do not stand under the new Act; while Higgins v. Campbell, [1904] 1 K. B. 328, and Brintons v. Turcey, [1905] A. C. 23", are cases of anthrax, and CDine expressly within the Third Schedule. It would appear that Collins, M. R., is prepared to hold that " shock to the nerves " comes within the Act as " injury b}' accident": see Pugh v. London Brighton and South Coast Rail. Co., [1896] 2 Q. B. 248, and the passage in his judgment in Wicks \, 656 STATUTORY LIABILITY OF EMPLOYERS. Donrll, fl90;j] 2 K. B. 225, beginning "It is said that these decisions," .... at p. 228. (E) That tho workman lias contracted out of the Act (sect. -i). (See the notes on " Contracting out," at p. 657, iitfniy and on sect. 3 of the Act.) (F) That the injury has not disabled the workman for a period of at least one week from earning full wages at the work at which he was employed (sect. 1, sub-sect. (2) (a) ). See the First Schedule (1) (b), proviso (a). Under the Act of 1897, compensation for the first fortnight was absolutely excluded; under this Act, if the in(uq)acity lasts for two weeks or more, compensation is payable as from the time of the accident. The i)rinciple of Chandler v. Smith, [1899] 2 Q. B. 506, ai)plies under this Act. (G) Want of or defect in " Notice of the accident " (sect. 2, sub-sect. (1) ). See notes on sect. 2, infrd. (H) That a " claim for compensation " was not made within six months from the injury or death (sect. 2, sub-sect. (1) ). See notes on sect. 2, mfra. (I) In case of a claim by " dependants " : — (i) That they are not within the necessary degree of relationship (sect. 13). (ii) That they were not " dependent " on the deceased (sect. 13). See notes on " Persons to whom the Act applies," at p. 648, Hupfd ; and on sect. 13, infni. (K) That the applicant has recovered damages for the injury independently of the Act (sect. 1, sub-sect. (2) (b) ). See notes on sect. 1, sub-sects. (2) (b) and 4, infra. (L) There are conditions as to " medical examination " which, until satisfied, suspend the workman's rights (First Schedule, paras. (4), 14), (15), (20) ) ; and there are matters to be considered in calculating the amount of compensation (First Schedule, para. (3) ). Defences arise out of the terms of sect. 7 (a})plication of Act to seamen) and se<-t. 8 (industrial diseases). As to the latter, see grounds (vit, (vii) and (viii) in para. 4 of Form 14 C^ Ah.s/rcr.s b// respoiidentH ") appended to the Workmen's Compensation Rides, 1907 ; cide p. 762, infra. workman's compensation act, 1906. 657 Contracting Out. The only mode of " contracting out " contemplated by the Act is that permitted by sect. 3, whicli imposes the following conditions : — (i) The granting of a certificate by the Eegistrar of Friendly Societies that the scheme of compensation, benefit or insurance complies with the requirements mentioned in sub-sect. (1) ; (ii) Such certificate may be in force for a stated period of not less than five years ; and may be renewed with modi- fications (sub-sect. (2) ) ; (iii) The scheme must not contain a provision making its accept- ance by the workman a condition of his hiring ; and must contain provisions enabling the workman to with- draw from it (sub- sect. (3) ) ; (iv) That the scheme is strictly observed and faMy adminis- tered ; and that it continues to conform to all the requirements mentioned in sub-sect. (1) ; (v) That the employer is at all times ready to furnish accounts to and answer inquiries by the Eegistrar of Friendly Societies. See notes on sect. 3, infra. The Arbitrator (Schedule II.). The arbitrator may be one of five kinds : — (1) A committee, representative of an employer and his work- men, with power to settle matters under the Act (Schedule II. (1) ). Committees to deal generally with disputes between master and men may be formed under the Conciliation Act, 1896 (59 & 60 Vict. c. 30). (2) A single arbitrator agreed on by the parties (Schedule II. (3) The county court judge of the district (Schedule II. (2) ). (4) In England a single arbitrator appointed, under the Lord Chancellor's authority, by the county court judge (Schedule II. (3) ). (5) In ease of the arbitrator's death or refusal or inability to act, an arbitrator appointed, on the application of any party, by the county court judge (Schedule II. (8) ). Under the Act of 181)7 (Schedule II. (7) ), this application was to a judge of the High Court at Chambers. M, u u 658 STATUTORY LIABILITY OF EMPLOYERS. 1. The powers of a committee are — (1) To settle the matter (para. (1) ) ; (2) To refer the matter to arbitration (para. ( 1 ) ) ; (3) To submit a question of law to the county court judge (para. (4) ) ; (4) To deal with costs within certain limits, subject to taxa- tion and review (para. (7) ) ; (5) To submit a matter for report to a medical referee (para. (15) ) ; (6) To exercise, by virtue of an order of the Secretary of State, all or any of the powers given by this Act to county courts or coimty court judges (para. (IH) ). This last provision, which is new, may, if used, tend to encourage the application to committees ; but their inability, apart from powers given under para. (16), to enforce the attendance of witnesses or the production of documents — a power expressly conferred by Schedule II., para. (4), upon county court judges and arbitrators appointed b}^ them — is a serious objection. (See note on para. (16).) Paras, ((i), (9) and (14) apply to proceedings before a com- mittee (.%■). 2. An agreed arbitrator has powers under para. (4) (submission of point of law) ; para. (7) (costs) ; para. (15) (reference to medical referee for report) ; but he has no power of enforcing the attendance of witnesses or the production of documents. Paras. (6), (9) and (14) apply in this case also. Probably both a committee and an agreed arbitrator have power to administer the oath to witnesses under sect. I'i of the Evidence Act, 1851 (14 & 15 Vict. c. 99) (.s-s). 3. The county court judge sits as an arbitrator, and therefore has no jurisdiction to entertain an application for a new trial : Mountain v. Pan; [1«!)9] 1 Q. B. 805. But see the new rule (r. 70), Workmen's Compensation Rules, 1907, providing for setting aside an award or order improperly obtained. Tlie procedure before him is regulated by Workmen's Compensation Rules, 1907, rr. 8—27. An appeal from his decision is only on a question of law, whether decided by himself as arbitrator or on submission to him by way of special case (Workmen's Compensation Rules, r. 32), and lies to the Court of Appeal. The procedure is regulated by (.ss) Save as here mentioned, these tribimals have no special procedure. workmen's compensation act, 1906. 659 E S. C. Ord. LVIII. rr. S, 20 ; and Ord. LTX. rr. 10, 12, 14, IG (t). (See Workmen's Oompeiisation Rules, 1907, r. 71.) An order for security for the costs of the appeal may he made : Rail V. Snowdoii, Huhhanl ^ Co., [1899] 1 Q. B. 5:».3 ; for an appeal is in this respect not like a new trial {tt) : Hancood v. Ahrahams, [1!)01] 2 K. B. 1-504. There ought to he a prior request for security made to the appellant: Sfanlfouly. North Easfern Steel Co. (1906), 28 T. L. 11. 1. See as to the duty of the county court judge to take a note, Workmen's Compensation Rules, 1907, r. ^34 ; and as to proceedings suhsequent to the decision of the Court of Appeal, Workmen's Compensation Rules, 1907, r. 72. From the Court of Appeal an appeal lies in England to the House of Lords. As to Scotland and Ireland, see Schedule II. (17, b) and (18). 4. The procedure before an arbitrator appointed by the county court judge is regulated by Workmen's Compensation Rules, 1907, rr. 29—33. Rule 31 (1) provides: "On the day for proceeding with an arbitration being fixed, the registrar shall proceed according to Rule 14, and thenceforward the arbitration shall proceed in the same manner as an arbitration before the judge; and these Rules shall apply and the ofiicers of the Court shall act accordingly, with the substitution of the arbitrator for the judge." It is submitted that, in spite of the wide terms of para. (3), he has not the jurisdiction to decide a point of law submitted to him. This was the view taken by the Rules Committee under the Act of 1897 ; and see r. 32 (1), Workmen's Compensation Rules, 1907. As to his remuneration, see sect. 10, sub-sect. (2), mfra. 5. It would appear that a new arbitrator may be apj)ointed under para. (8), in both cases, 2 and 4 {.supra), but that, having regard to the Workmen's Compensation Rules, 1907, rr. 29 (e) and 40, the person appointed retains, for all purposes, the character of the arbitrator whom he replaces. \_JY.B. — For further information regarding procedure, costs, &c., see the Workmen's Compensation Rules, 1907 (printed iufra), and Schedule II. to the Act, and the notes there.] The Compensation Payable. The scale and conditions of compensation are fixed by the First Schedule to the Act : see the notes thereon, ////>y/. [t) Printed at p. 853, post. [tt) But this rule as to new trials is no loua-er followed: Wightwlck v. Pom, [1902] 2 K. B. 99. 660 STATU rOKV LIAIULITY OF KMPT.OYERS. WORKMEN'S COMPENSATION ACT, 1906. 6 EDW. 7, 0. 58. Arrangement of Sections. Section. 1. Liability of employers to workmen for injuries. 2. Time for taking proceedings. 3. Contracting out. 4. Sub-contracting. 5. Provision as to cases of bankruptcy of employer. 6. Remedies botb against employer and stranger. 7. Application of Act to seamen. 8. Aijplication of Act to industrial diseases. 9. Ajiplication to workmen in employment of Crown. 10. Appointment and remuneration of medical referees and arbitrators' 11. Detention of ships. 12. Returns as to compensation. 13. Definitions. 14. Special provisions as to Scotland. 15. Provisions as to existing contracts and schemes. 16. Commencement and repeal. 17. Short title. Schedules. An Act to consolidate aud amend the Lair with respect to Compensation to Workmen for Injuries suffered in tJie course of their Employment. Liability of 1. — (1) If in any employment pei'sonal injury by accident arising out of emp oyers to ^^^^| -^ ^-^^ course of the employment is caused to a workman, his employer injuriea. shall, subject as herein-after mentioned, be liable to pay compensation in accordance with the First Schedule to this Act. " Personal injury by accident.'^ See notes at p. 654, supra. " Arising out of and in the course of his employment. ''^ See notes at p. 652, supra. " tForkman " and " employer " are defined in sect 13. See the notes on the First Schedule. (2) Provided that— (a) The employer shall not be liable under this Act in respect of any injuiy which does not disable the workman for a period of at least one week from earning full wages at the work at which ho was employed : The minimum period under the old Act was two weeks. See Schedule I. (1) (b), proviso (a). A workman was employed in the same capacity, and, as a matter of grace, paid the same wages after an accident as before ; but his general wage-earning power at that work was decreased. It was held that the Act applied. A declaration of liability was made, leaving the compensation to be assessed when actual loss of wages occurred: Chandler v. Smith, [1899] 2 Q. B. 506. See Schedule II., para. (9) (b). workmen's compensation act, 1906. ^^1 (b) When the injury was caused by the personal negligence or wilful act of the employer or of some person for whoso act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act or take proceedings independently of this Act ; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid : See the notes on sub-sect. (4), infra. This Act does not alter the rights of infants ; and therefore where an infant has received compensation which he agrees to be "in satisfaction of all claims, &c.," he may still proceed at Common Law if it be foimd that the agxeenient as to compensation be not for his benefit: Stephens v. Dudbridge Ironworks Co., [1904] 2 K. B. 225. (c) If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, miless the injury results in death or serious and permanent disahlement, be disallowed. The words in italics are new. See the notes on " Defences to claims" at p. 650, trnpra. (3) If any question arises in any proceedings under this Act as to the liability to pay compensation under this Act (including any question as to whether the person injured is a ivorkman to ivhom this Act wpplies), or as to the amount or duration of compensation under this Act, the question, if not settled by agreement, shall, subject to the provisions of the First Schedule to this Act, be settled by arbitration, in accordance with the Second Schedule to this Act. The words in italics are new. If no such question has in fact arisen, the county court judge has no juris- diction to make an award : Field v. Longden, [1902] 1 K. B. 47. (4) If, within the time herein-after in this Act limited for taking pro- ceedings, an action is brought to recover damages independently of this Act for injury caused by any accident, and it is determined in such action that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed ; but the court in which the action is tried shall, if the plaintiff' so choose, proceed to assess such compensation, but may deduct from such compensation all or part of the costs which, in its judgment, have been caused by the plaintiff' bringing the action instead of proceeding under this Act. In any proceeding under this sub-section, when the court assesses the compensation it shall give a certificate of the compen- sation it has awarded and the directions it has given as to the deduction for costs, and such certificate shall have the force and effect of an award under this Act. " Time .... limited for taki)ig proceedings." Six months: Vide sect. 2, sub- sect. (1). 662 STATUTORY LIABILITY OF EMPLOYERS. The option given by this section must be exercised then and there at the conclu- sion of the action. The workman may not launch proceedings under this Act at a subsequent date : Eduards v. Gudfretj, [18'i9] 2 Q. T5. ',V,V-^ And where the judge has assessed compensation under this sub -section, the phiintift, though an infant, is estopped from appealing in the nction : Xcnli' v. Electric and Ordnance Accensories Co. Ltd., [190(1] 2 K. B. oo8. But where the plaintiff's application to assess com- pensation has b en made pro fornia and adjourned, he may still appeal both in the action and tlic i-oinpensation proceedinsrs : Isaacson v. New Grand {Clapham Junction), Ltd,, [1903] 1 K. B. 539. This A(;t does not alter the law relating to infants ; and therefore, -where an infant has received the maximum compensation vinder the Act, which he has agreed to accept " in satisfaction of all claims," &c., he may still proceed at Common Law if it be found that the agreement be not for his benefit : Stephens v. Dudhridye Ironworks Co., Ltd., [HU)4] 2 K. B. 22o. The Court has full discretion under this sub-section over the costs both of the action and of the compensation proceedings: Cattrriiiolc v. At/antic Transport Co., [I!.()'2] 1 K. B. 204. See S.liedule II., cl. (7) and note there. See as to the form of the certificate and the recording of it by the registrar, Workmen's Compensation Rtdes, 1907, r. 51. (5) Nothing in this Act shall affect any proceeding for a fine under the enactments relating to mines, factories, or workshops, or the application of any such fine. The last clause of this sub-section in the Act of 1897 has been omitted. See Coal Mines Regulation Act, 1887, ss. 5!) cl sq'/. ; Metalliferous Mines Regu- lation Act, 1872, ss. :■; 1 et sqq. ; Factory and Workshop Act, 1901, ss. 135 et sqq. Cf. sect. 5 of the Employers' Liability Act, 1880. ceedinu-s. Time for 2. — (1) Proceedings for the recovery under this Act of compensation for taking pro- an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the hajjpening thereof and before the work- man has voluntarily left the emplo^'ment in which he was injured, and unless the claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury, or, in case of death, within six months from the time of death : Provided always that — (a) the want of or any defect or inaccuracy in such notice shall not be a bar to the maintenance of such proceedings if it is found in the pro- ceedings for settling the claim that the employer is not, or ivould 7int, if a notice or an amended notice lutre then given and the hearing post- poned, be prejudiced in his defence by the want, defect, or inaccuracy, or that such want, defect, or inaccuracy was occasioned by mistake, absence from the United Kingdom, or other reasonable cause ; and (b) tlie fuihire to inake a claim luithin the period above specified shall not be a bar to the maintenance of such j)roceedings if it is found that the failure was occasioned by mistake, absence from tiie United Kingdom, or other reasonable cause. (2) Notice in respect of an injury under tliis Act shall give the; name and addi'ess of the pcirson injured, and shall state in ordinary language the cause of the injury and the date at which the accident happened, and shall be served on the emi)loyer, or, if there is more than one emjdoyer, upon one of such employers. (3) The notice may be served bj' delivering the same at, or sending it by post in a registered letter addressed to, the residence or place of business of the person on whom it is to be served. out. workmen's compensation act, l!)06. ^^^ (4} Where the employer is a body of ])ersons, corporate or unincorporate, the noticp may also be served by delivering the same at, or by sending it by post in a registered letter addressed to, the employer at the office, or, if there be more than one office, any one of the offices of such body. The wor(3s in italics are new. Under tlie Aft of 1S97 the failure to make a claiTn witliin six months was fatal. The " claim for compensation " is ut)t the same as the " request for arbitration " ; it is a notice of daim for cDmjjensation sent to the employer : Putvcll v. Main Colliery Co., [1900] A. C. 366. It need not be in writiuir : Loive v. Myers S; Sons, [1906] 2 K. B. '26o. The indefinite suspension of legal proceedings is provided against in the Workmen's Compensation Rules, 1907, r. 10. There may be cii'cumstances— <■.(/., an admission of liability, followed by negotia- tions as to the amount of compensation — which estoj) the emi'loyer from raising the defence that six months have expired without a "claim" liaving been made: Wright v. John BaynaU cf ^ons. Ltd., [1900] '2 Q. B. 240; Retulall v . Hilf s Dry Bocks, 6fC., [1900] 2 Q. B. 24.'5. See the explanation of this latter case in Oliver v. Nautilus Steam Shipping Co., [1903] 2 K. B. (39. 3. — (1) If the Registrar of Friendly Societies, after taking steps to ascer- Contractin tain the views of the employer and workmen, certifies that any scheme of compensation, benefit, or insurance for the workmen of an employer in any employment, whether or not such scheme includes other employers and their workmen, proin'des scdJes of coiu-pensation not less fdvoitrahle to the irork- men and their ilrpenddnts than tlte corresjiondirif/ satles contained in this Act, and that, wlurethe scheme provides for coutrihidiotis hy the tvorkmen, the scheme confers benefits at least equivalent to those contributions, in addition to the benefits to ivhich the workmen loonld have been entitled under this Act, and that a majority [to be ascertained hy ballot) of the tvorkmen to -whom the scheme is applicable are in farour (f such scheme, the employer may, whilst the certifi- cate is in force, contract with any of his workmen that the provisions of the scheme shall be substituted for the provisions of this Act, and thereupon the employer shall be liable only in accordance with the scheme, but, save as aforesaid, this Act shall apply notwithstanding any contract to the contrary made after the commencement of this Act. (2) The Registrar may give a certificate to exjiire at the end of a limited period of not less than five years, and may from time to time renew ivith or ivithout mollifications such a certificate to expire at the end of the period for which it is renewed. (3) No scheme shall be so certified which contains an obligation upon the workmen to join the scheme as a condition of their hiring, or which does not contain provisions enabling a workman to witfi draw from the scheme. (4) If complaint is made to the Registrar of Friendly Societies by or on behalf of the workmen of any employer that the benefits conferred by any scheme no lonyer amform to the conditions stated in sub-sect. (1) of this section, or that the provisions of such scheme are being violated, or that the scheme is not being fairly administered, or that satisfactory reasons exist for revoking the certificate, the Registrar shall examine into the complaint, and, if satisfied tliat good cause exist for such complaint, shall, unless the cause of complaint is removed, revoke the certificate. (5) When a ct-rtificate is revoked or expires, any moneys or securities held for the piu'jjose of the schemo shall, offer d"e p7-oi'ift, in or about.''^ " Physical contiguity" is the test to be applied to what is in each case a question of fact. See the decisions on these words in sect. 7 of the Act of 1897 : Powell v. Brotvn, [1899] 1 Q. B. 157 ; Lowth v. Ibbotson, [1899] 1 Q. B. 1003: Fenny. Miller, [1900] 1 Q. B. 788. This sub-section was before the Court of Appeal in Andreas v. Andrews and Mears (1908), 24 Times L. R. 709. 5. — (1) Where any employer has entered into a contract with any insurers in Provision as respect of any liability under this Act to any workman, then, in the event of ^° ^?f^^ °* the employer becoming bankrupt, or making a composition or arrange- of employer, ment -with his creditors, or if the employer is a company in the event of the company ha\'ing commenced to be wound up, the rights of the employer against the insurers as respects that liability shall, notwithstanding anything in the enactments relating to bankruptcy and the luinding up of companies, be transferred to and vest in the luorkman, and upon, any such transfer the insurers shall have the sa7ne rights and remedies and be subject to the same liabilities as if they were the employer, so however that the insurers shall not be under any greater liability to the workman than they luould have been under to the employer. (2) If the liability of the insurers to the workman is less than the liability of the employer to the workman, the workman may prove for the balance in the bankruptcy or liquidation. (3) There shall be included among the debts which under section one of the 51 & 52 Vict. Preferential Payments in Bankruptcy Act, 1888, and section four of the ^' „ " „ y. , Preferential Payments in Bankruptcy [Ireland) Act, 1889, are in the distri- c. 60. bution of the property of a bankrupt and in the distribution of the assets of a company being wound up to be paid in priority to all other debts, the amount, not exceeding in any individual case one hundred pounds, due in respect of any compensation the liability wherefor accrued before the date of the receiving order or the date of the commencement of the winding up, and those Acts and the 60 & 61 Vict. Preferential Payments in Bankruptcy Amendment Act, 1897, shall have effect ^- l^- accordingly. Where the compensation is a weekly payment, the amount due in respect thereof shall, for the purposes of this provision, be taken to be the amount of the lump sum for which the weekly payment could, if redeemable, be redeemed if the employer made an application for that jJurpose under the First Schedule to this Act. 666 STATUTORY LIABILITY OF EMPLOYERS. 50 & 51 Vict. (4) In the cftse nf the windiriij up of a compani/ ivithin the meaning of the ^- '*^* Stmmarits Act, 1887, such an amount as aforesaid, if the compensation is payithle to a miner or the dependants nf a miner, shall have the like priority as is conferred on mages of miners hy section nine of that Act, and that section shall have effect accordingly. (5) The provisions of this section with respect to preferences and priorities shall not apply where the banJcrupt or the company being wound up has entered into such a contract with insurers as aforesaid. (6) This section shall not apply where a company is ivound up voluntarily merely for the purposes of reconstruction or of amalgamation with another comjxmy. This section is new. Sub-sect. (1). By virtue of r. -lb (1), (3), Workmen's Compensation Rules, 1907, a claim by the workman against the insurers is to be enforced, as if it were an application for compensation, in accordance with the provisions of and subject to the rules made under this Act. What is the meaning of the last words of this sub- section ? Do they mean that all the employer's defences are open to the insurers, as w^ell as any defence which could have been raised against the employer arising out of the contract of insurance ? That would certainly appear to be the natural meaning of the words. For instance, may the insurers raise against the workman the defence that the contract of insurance was induced by the fraudulent misrepre- sentation of a material fact, which fonned the basis of the (contract? If not, they are certainly under a " greater liability to the workman than they Wf)uld have been under to the employer." On the other hand, is the meaning sim])ly that the amotml of the insurers' pecuniary liability is to be limited to the amount of their pecuniary liability to the employer under the contract of insuran e? '' Liability " seems to be used in sub-section (2) in this sense. It is submitted that the former is the true meaning. See r. 35 (3), Workmen's Compensation Rules, 1907. Sub-sect. (3). The provisions of the Preferential Payments in Bankru[)tcy Acts, 1888 and 1897, are set out at p. 127, in Part I. of this Book. The material portions of sect. 4 of the Irish Act of 1889 are practically the same as those of sect. 1 of the Act of 1888. " The amount of the lump sum,'' &c. See Sched. I. vl. (17). Sub-sect. (1). By sect. 9 of the Stannaries Act, 1887, it is provided : — " If at the commencement of the winding-up of any company, whether by the Court or otherwise, any wages not exceeding such an amount as under the fourth .section woTild be made a fir.st charge" (viz.. three months' wages) 'are unpaid, the same shall be paid by the official litjuidator or liquidator forthwith in priority to all other costs, except such costs of and incidei:tal to the making of the order for the winding-u]) as in the opinion of the Court .shall have been jjroperly incurred, and, subject to the tenth section of this Act, ti> all claims, whether by m(jrtgagees, execution creditors or any other pers.n whatsoever ; and, subject as aforesaid, the Court nuiy by order charge the whole or any part of the assets of the company, in absolute priority to all claims and to all existing mortgages or charges thereon, with the paynient of a sum sufficient to discharge the said wages, with interest thereon at a rate not exceeding 5 per cent, per annum ; and such charge may be made in favour of any person who is willing to advance the retpiisitc anuaint, 'i}icipaJ place of business in the United Kingdom, subject to the following modifications : — (a) The notice of accident and tlie claim 'or compensation may, except vihere the person injured is the master, be served on the master of the ship as if he were the employer, but where the accident happened and the incapacity commenced on board the ship it shall not he necessary to give any notice of the accident : (b) In the case of the deat/i of the master, seaman, or apprentice, the claim for compensation shall be made within six months after news (f the death has been received by the claimant: (c) Where an injured master, seaman, or apprentice is discharged or left behind in a British possession or in a foreign country, depositions respec- ting the circumstances and nature of the injury may be taken by any judge or magistrate in the British possession, and by any British consular seamen. 668 STATUTORY LIAHILirY OF EMPLOYERS. officer in the /on iyn country, and if so taken shall be transmitted by the person by whom they are tafieu to the Board o/ 'Trade, and such depositions or certified copies thereof shall in any proceedings for enforcing the claim be admissible in evidence as ptrovided by sections six hundred and ninefy- 57 & 68 Vict. Q)jg and six hundred and ninety-five of the Merchant Shipping Act, 1894, and those sections shall apply accordingly : (d) In the case of the death of a master, seaman, or apprentice, leaving no dependants, no compensation shall be payable, if the owner of the ship is under the Merchant Shipping Act, 1894, liable to pay the expenses of burial : (e) TJie weekly payment shall not be payable in respect of the period during ivhich the owner of the ship is, under the Merchant Shipping Act, 1894, OS amended by any subsequent enactment, or othertvise, liable to defray the expenses of maintenance of the injured master, seaman, or apprentice : {I) Any sum payable by way of compensation by the owner of a ship under this Act shall be paid in full notwithstanding anything in section five hundred and three of the Merchant Shipping Act, 1894 {which relates to the limitation of a shipowner's liability in certain cases of loss of life, injury, or damage), but the limitation on the owner's liability imposed by that section shall upply to the amount recoverable by way of indemnity under the section of this Act relating to remedies both against employer and stranger as if the indemnity were damages for loss of life or personal injury : (g) Sub-sections (2) and (3) of section one hundred and seventy-four of the Merchant Shipping Act, 1894 {which relates to the recovery of wages of seamen lost with their ship), shall apply as respects jjroceedings for the recovery of compensation by dependants of musters, seamen, and appren- tices lost ivith their ship as they apply ivith respect to proceedings for the recovery of wages due to seamen and apprentices ; and proceedings for the recovery of compensation sliall in such a case he maintainable if the claim is made within eighteen months of the date at wliich the ship is deemed to have been lost with all hands : (2) This Act shall not apply to such members of the crew of a fishing vessel as are remunerated by s/iares in the profits of the gross earnings of tite working of such vessel. (3) 'This section shall extend to pilots to whom Part X. of the Merchant Shipping Act, 1894, applies, as if a pilot ivhen employed on any such shijy as aforesaid were a seaman and a member of the crew. This section is entirely new. " Seamen " as sucb were not within the old Act. See r. 36, Workmen's Compensation Rules, 1907, for procedure under this section. Sub-sect. (1) (dj and (e). By sect. 207, sub-sect. (1) of the Merchant Shipping Act it is provided : — ' ' If the master of, or a seaman or apprentice belonging to, a ship receives any hurt or injury in the service of the ship .... the expenses of the maintenance of the master, seaman, or apprentice until he is cured, or dies, or is brought back, if shipped in the United Kingdom, to a port of the United Kingdom, or if shipped in a British possession to a port of that possession, and of his conveyance to the port, and in case (jf death the expense (if any) of his burial, shall be defrayed by the owner of the ship, without any deduction on that account from his wages." Sub-sect. (1) (g). The two sub-sections referred to deal with the evidence upon workmen's compensation act, 1006. 669 which the ship shall bo deemecl to have been lost with all hands, and with the proof of the seamen or apprentices in question having been on board at the time of the loss. Sub-sect. (2). A partner, working in a mine, who was paid his wages out of the profits, was held not to be a " workman " within the old Act : Ellis v. Joseph Ellis S; Co., [1905] 1 K. B. 324. Sub-sect. (3). The pilots refeiTcd to are — (1) "Qualified" pilots, i.e., licensed by a " pilotage authority " ; (2) " unqualified" pilots acting in certain circumstances within a pilotage district (sect. 596) ; (3) pilots licensed by the Trinity House to act within certain limits. Sect. 11, infra, gives the right in certain circumstances, when compensation is claimed from the owners, to detain the ship. 8. — (1) Where — Application (i) The certifying surgeon appointed under the Factory and Worhshop Act, ? * !° \20\, for the district in which CO ivorkman is employed certifies that the diseases. tuorkman is suffering from a disease mentioned in the Third Schedule to i Edw. 7, this Act and is thereby disabled from earning full wages at the ivork at c. 22. ivhich he ivas employed ; or (ii) A workman is, in pursuance of any special rules or regulations made under the Factory and Workshop Act, 1901, suspended from his usual employment on account of having contracted any such disease ; or (iii) The death of a luorkman is caused by any such disease; and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous to the date of the disablement or suspension, tvhefher under one or more employers, he or his dependants shall be entitled to comjjensation under this Act as if the disease or such suspension as aforesaid tuere a personal injury by accident arising out of and in the course of that e7nployment, subject to the foUoiving modifications : — (a) The disablement or susjjension shall be treated as the happening of the accident; (h) If it is proved that the ivorkman has at the time of entering the employjnent ivilfully and falsely represented himself in toriting as not having pre- viously suffered from the disease, compensation shall not be payable : (c) The compensation shall be recoverable from the employer who last employed the ivorkman during the said twelve 'months in the employment to the nature of which the disease ivas due : Provided that — - (i) The workman or his dependants if so required shall furnish that employer with such information as to the names and addresses of all the other employers who employed him in the empdoyment during the said twelve months as he or they may possess, and, if such information is not furnished, or is not sufficient to enable that employer to take proceedings under the next following proviso, that employer upon proving that the disease was not contracted whilst the ivorkman was in his employment shall not be liable to pay com- pensation ; and (ii) If that employer alleges that the disease was in fact contracted whilst the workman was in the employment of some other employer, and not whilst in his employment, he may join such other employer as a party to the arbitration, and if the allegation is proved, that other employer shall be the employer from whom the compensation ?'§ to be recoverable ; and 670 STATUTORY LIABILITY OF EMPLOYERS. (iii) If the disease is of such a nature as to he contracted hy a gradual process, any other employers who during the said ttvelve months employed the ivorkman in the employment to the nature of which the disease ivas due shall he liahle to make to the employer from ivhom compensation is recoverable such contributions as, in default of agreement, may be determined in the arbitration under this Act for settling the amount of the compensation ; (d) The amount of the compensation shall he calculated with reference to the earnings of the workman under the employer from whom the compensation is recoverable ; (e) The employer to luhom notice of the death, disablement, or suspension is to be given shall be the employer who lust employed the workman during the said twelve months in the employment to the nature of ivhich the disease was due, and the notice may be given nottvithstanding that the workman has voluntarily left his employment. (f) If an emjdoyer or a ivorkman is aggrieved by the action of a certifying or other surgeon in giving or refusing to gire a certificate of disablement or in suspending or refusing to suspend a workman far the purposes of this section, the matter shall in accordance with regulations made by the Secretary of St(de be referred to a medical referee, whose decision shall he final. (2) // the workman at or immediately before the date of the disabhment or suspensioji was employed in any process mentioned in the second column of the Third Schedule to this Act, and the disease contracted is the disease in the first column of that Schedule set opposite the description of the process, the disease, except where the certifying surgeon certifiers that in his opinion the disease was not due to the nature of the e7nployme7it, shall he deemed to have been due to the nature of that employment, unless the employer proves the contrary. (3) The Secretary of State may make rules regulating the duties and fees of certifying and other surgeons {including dentists) under this section. (4) For the purposes of this section the date of disablement shall be such date as the certifying surgeon certifies as the ilateon which the disablement commenced, or, if he is unable to certify such a date, the date on which the certificate is given : Provided that — (a) Where the medical referee allows an. appeal against a refusal by a certi- fying surgeon to give a certificate of disablement, the date of disablement shall be such date as the medical referee may determine : (b) Where a workman dies without having obtained a certificate of disablement, or is at the time of death not in receipt of a weekly payment on. account of disablement, it shall be the date of death. (5) In such cases, and subject to such conditions as the Secretary of State may direct, a medical practitioner appointed by the Secretary of State for the purpose shall have the powers and duties of a certifying surgeon under this section, and this section shall be construed accordingly. (6) The Secretary of State may make orders for extending the j^rovisions of this section to other diseases and other processes, and to injuries due to the nature of any employment specified in the order not being injuries by accident, either without modification or subject to such modifications as may he contained in the order. workmen's compensation act, 1906. ^'"^1 (7) Where, after inquiry held cnthe applicaUov of any employers or rvorkmen engaged in any indtiatry to ivhich this section applies, it appears that a mutual trade insurance company or socirty for insuring against the risks under this section, has hee.n established for the industry, and that a majority of the employers engaged in that industry are insured against such risks in thecomjmny or society and that the company or society consents, the Secretary of State may, by Provi- sional Order, require all employers in that industry to insure in the company or society upon such terms and under such conditions and subject to such exceptions («s may he set forth in the Order. Where such a com]>any or society has been established, but is covfined to employers in any particular locality or of any particular class, the Secretary if State may for the purposes of this provision treat the industry, as airried ou by employers in that locality or of that class, as a separate industry. (8) A Provisional Order made under this section shall be of no force vihntever unless and until it is confirmed J)y Parliament, and if, while the Bill confirming any such order is pending in either House of Parliament, a petition is presented against the Order, the Bill may be referred to a Select Committee, and the petitioner shall be allowed to appear and oppose as in the case of Private Bills, and any Act confirming any Provisional Order under this section may be repealed, altered, or amended by a Provisional Order made and confirmed, in like manner. (9) Any expenses incurred by the Secretary if State in respect of any such Order, Provisional Order, or confirming Bill shall he defrayed out of moneys provided by Parliament. (10) Nothing in this section shall affect the rights of a rvorkmcin to recover compensation in respect of a disease to which this section does not apply, if the disease is a personal injury by accident vjithin the meaning of this Act. This section is entirely new. See the notes on " Defences to Chiinis," at p. 655, supra, as to the effect of this section upon the decisions regarding- industrial diseases under the old Act. Procedure in an arbitration under this section is regulated by r. 39, Workmen's Compensation Rules, 1907. The regulations made as to the duties, remuneration and expenses of medical referees and certifying sui-geons under sub-sects. (1) (f), (3} and (5), and sect. 10 (1) and the forms of their notices and certificates are printed at p. 810, infra. And see r. 82, Workmen's Compensation Rules, 1907. Sub-sect. (1) (i). As to certifying surgeons under the Factory Act, 1901, which is printed at p. 461,*«/?ra, see sects. 122 — 124 (appointment and payment) ; sect. 73 (noiitication to them of certain diseases). Sub-sect. (4), proviso (a). As to medical referees, see the notes on sect. 10, infra. Sub-sect. (5). Apparently a certificate of disablement may be given either by the certifying surgeon under the Factory Act [sub-sect. (1) (i)] or by one appointed under this sub- section. Sub-sect. (10). For an instance of such a case, see Thompson v. Ashiugtou Coal Co. (1901), 17T. L. R. 345: Death from blood-poisoning caused by the penetration of a piece of coal into a miner's knee. 672 STATUTORY LIABILITY OF EMPLOYERS. Sub-sect. (6). By order dated May 22nd, 1907, the Secretary of State has extended the provisions of this section to the following diseases : — Description of Disease or Injury. 1 . Poisoninp: by nitro- and amido-dcri- vatives of b(>nzcne (dinitro-bciizol, anilin, and others) or its se(juehe. 2. Poisoning by carbon bisulphide or its sequelsD. 3. Poisoning by nitrous fumes or its scquclfe. 4. Poi.soning by nickel carbonyl or its sequelae. 5. Arsenic poisoning or its sequelae . . 6. Lead poisoning or its sequelae .... 7. Poisoning by Goninma Kamassi (African boxwood) or its sequelse. 8. Chrome ulceration or its sequelce . . 9. EczematouH ulceration of the skin produced by dust or caustic or corrosive liquids, or ulceration of the mucous membrane of the nose or mouth produced by dust. 10. Epitheliomatous cancer or ulceration of the skin or of the corneal sui-face of the eye due to pitch, tar, or tarry compounds. 1 1 . Scrotal epithelioma (chimneysweep's cancer). 12. Nystagmus 13. Glanders 1 4 . Compressed air illness or its sequelae 15. Subcutaneous cellulitis of the hand (bent hand). IG. Subcutaneous cellulitis over the patella (minor's bent knee). 17. Acute bur.^itisovertheelbow (miner's Vjent elbow). 18. Inflammation of the 8yiu)vial lining of the wrist joint and tendon aheaths. Description of Process. Any process involving the use of a nitro- or amido-dcrivative of benzene or its preparations or compounds. Any process involving the use of carbon bisulphide or its preparations or com- pounds. Any process in which nitrous fumes are evolved. Any process in wliich nickel carbonyl gas is evolved. Handling of arsenic or its preparations or compounds. Handling of lead or its preparations or compounds. Any process in the manufacture of articles from Gonioma Kamasai (African boxwood). Any process involving the use of chromic acid or bi-chroniate of ammonium, potassium, or sodium, or their pre- parations. Handling or use of pitch, tar, or tarry compounds. Chimney sweeping. Mining. Care of any equine animal suffering from glanders ; handling the carcase of such animal. Axiy process caiTied on in compressed air. Mining. Mining. Mining. Mmiug. Application to workmen in employ- ment of Crown. 9. — (1) This Act shall not apply to persons in the naval or military service of the ("rown, but otherwise shall apply to workmen employed by or under the Crown to whom this Act would apply if the employer were a private person : Provided that in the case of a person employed in the private service of the Crown, the head of that department of the Royal Household in which he was employed at the time of the accident shall he deemed to he his employer. workmen's compensation act, 1006. 673 (2) The Treasury may, by warrant laid before Parliament, modify for the purposes of this Act their warrant made under section one of the Superannua- -^0 & •''1 Vict, tion Act, 1887, and notwithstanding anything in that Act, or any such *^" '' warrant, may frame schemes with a view to their being certified by the Registrar of Friendly Societies under this Act. Sub-sect. (1). The proviso is new. See Workmen's Compensation Rules, 1907, r. 79. Sub-sect. (2). The Superannuation Act, 1887 (;)0 & .51 Vict. c. 67), s. 1, provides that where a person employed in the civil service of the State is injured in the actual dischara>:ies, ubi sup. A husband, being out of work, left his wife four months before his death ; and from that date paid nothing towards his wife's maintenance. He was earning wages at the time of his death. The wife had no mejins of subsistence of her own, and was siipported in fa(!t by relations' charity and a, little work she did herself. Meld, that there Avas evidence which justified the findnig that she was totally dependent on her husband : Coult/mrd v. Consctf Iron Co., Ltd., [1905] 2 K. B 869. There is a legal jjresumption of depen- dency in the case of a wife which has to be rebiUted in order to deprive her of compensation: Jniliaius v. Cccrin Coal Co., Zftr/., [1907] 2 K. B. 422; StanlandY. North Eastern Steel Co.. Ltd., ibid. p. 42.5, n. A posttmmous child is a dependant: Williams v. Ocean Coal Co., ubi sup. A widow and children of a deceased workman are none the less " dependants wholly dependent ujjon his earnings" (Sched. I. para. (1} (a) (i)), because the workman has been enabled, by the receipt of money , 1906. 677 from his wage-oarniii"- sons or from other sources, to augment the fund out of which he has maintained liis hnusehohl. If, however, a workman's wife has, at the time of his death, indopondciit means of support of any kirid, wliich are not derived throufjh him, and which he could not have appropriated without her consent, f-uch as private income or earning-s ot her own, the ca^c is one of i)artial dependence on her husband's (uirnings : Sniior v. FoiiiUaii/x i^--Hnni/r;j {VJ07, 2^ Timen Ij. R. GM. A father, who is a pauper inmate of a workhouse, to whose maintenance his sun contributed nothing, is not, as a matter of law, dependent upon his son's earnings : Jices V. rmnkt/bcr Naviyntton CoUienj Co., [1903] 1 K. B. 259. The right of dependants to compensation is a separate right, of which the work- man cannot ch-prive them, subject to this, that the employer is not bound to pay in the aggreyate more than the maximnni compensation allowed by the Act, and is entitled to take credit for the sums advanced to the workman by way of weekly payment: Williams v. Vaaxhall Colliery Co., [1907] 2 K. B. 433. In cases of compensation by agreement, dependants are protected by S^hed. II. para. (9) (d) (e) and para. (10). "Ship," "vessel," "seaman," and "port" have the same meanimjs as in the Merchant Shipping Act, 1894. This is new. By sect. 742 of the Merchant Shipping Act, 1894 :— "Ship" includes every description of vessel used in navigation not propelled by oars. "Vessel" includes any ship or boat, or any other description of vessel used in navigation. ' ' Seaman ' ' includes every person (except masters, pilots and apprentices duly indentured and registered) employed or engaged in any capacity on board any ship. " Port " includes place. " Manager," in relation to a ship, means the ship^s husband or other person to whom the mauagemnit of the ship is entrusted hy or on hehaJf of the owner. This is new. " Police force " means a police force to which the Police Act, 1890, or the 53 & 54 Vict. Police [Scotland) Act, 1890, applies, the City of London Police Force, c- 46. the Royal Irish Constabulary, and the Dublin Metropolitan Police q,. Force. This is new. By sect 33 of the Police Act, 1890, " Police force " means a force maintained by one of the police authorities mentioned in the thu-d schedule to that Act. That schedule includes the Metropolitan Police Force, the River Tyne police, county police forces maintained by their standing joint committees, borough police forces maintained by Watch Committees, police forces of towns not being boroughs managed under local Acts. The Police (Scotland) Act, 1890, applies to county police forces maintained by their standing joint committees, and bm-gh police forces maintained by the police commissioners or the town council acting as police commissioners. (Sect. 30 and Sched. Ill ) "Outworker" means a person to whom articles or materials are given oat to be made up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for sale, in his own home or on other premises not under the control or management of the person who gave out the materials or articles. This is new. The term " outworker " is taken from the Factory Act, 1901. See the marginal note to sect. 107. 678 STATUTORY LIAHILITY OF EMPLOYERS. Special pro- visions as to Scotland. 43 & 44 Vict. c. 42. The exercise and performnnce of the powers and duties of a local or other public authority shall, for the purposes of tliis Act, he treated as the trade or business of the authority. This is new. " Trade or business.'''' See the definition of " workman," supra. " County court," "judge of tho county court," "registrar of the county court," "plaintiff," and "rules of court," as respects Scotland, mean respectively sheriff court, sheriff, sheriff clerk, pursuer, and act of sederunt. Tliis reproduces para. (14) (a) of Sched. II. of the Act of 1897. 14. //* Scotland, ivhere a luorkman raises an action ayainst his ciaployer independently of this Act in respect of any injury caused by accident arising out of and in the course of the employment, the action, if raised in the sheriff court and concluding for damages unaer the Employers'' Liability Act, 1880, or alternatively at common laiu or under the Employers' Liability Act, 1880, shall, notwithstanding anything contained in that Act, not be removed wider that Act or otherwise to the Court of Session, nor shall it be ajjpealed to that Court other- wise than by appeal on a question of law ; and for the purposes of such appeal the provisions of the Second Schedule to this Act in regard to an appeal from the decision of the sheriff on any question of law determined by him as arbitrator under this Act shall apply. This is new. See the notes on sect. 6 of the Employers' Liability Act, 1880, at p. 639, supra, and on para. (17) (b) of Sched. II. of this Act, infra. Provisions as to existing contracts and schemes. 60 & 61 Vict. c. 37. 15,_(1) Any contract {otiter than a contract substituting the provisions of a scheme certified under the Workmen's Compensation Act, 1897, for the provi- sions of that Act) existing at the commencement of this Act, whereby a workman relinquishes any right to compensation, from the employer for personal injury arising out of and in the course of his employment, shall not, for the purposes of this Act, bo deemed to continue after the time at which the workman's contract of service would determine if notice of the deteriui- nation thereof were given at the commencement of this Act. (2) Every scheme under the Workmen's Compensation Act, 1897, in force at the commencement of this Act shall, if re-certified by the Registrar of Friendly Societies, have effect as if it were a scheme under this Act. (3) The Registrar shall re-certify any such scheme if it is proved to his satis- faction that the sclieme conforms, or has been so modified as to conform, with the 2jrooisio)is of tliis Act as to schemes. (4) If any such scheme has not been so re-certified before the expiration of six months from the commencement of t/iis Act, the certificate thereof shall be revoked. The words in italics are new. Sub-sect. (3). See sect. 3, supra, and the notes there. workmen's compensation act, 1906. 679 16. — (1) This Act shall come into operation on the first day of July nine- Commence- teen hundred and seven, but, except so far as it relates to references to '^<^"'^ ^.nd medical referees, and proceedings consequential thereon, shall not apply in any case where the accident happened before the commencement of this Act. (2) The Workmen's Compensation Acts, 1.S97 and 1900, are hereby repealed, 60 & 61 Vict, but shall continue to apply to cases where the accident happened before the *'' commencement of this Act, except to the extent to which this Act apj)lies to ' ^o ^^ " those cases. Sub-sect. (1). ^'References to medical referees^': see Sched. I. para. (15), and the notes there. 17. This Act may be cited as the Workmen's Compensation Act, 1906. Short title. SCHEDULES. FIEST SCHEDULE. Scale and Conditions of Compensation. (1) The amount of compensation under this Act shall be : — (a) Where death resvilts {a) from the injury : — (i) If the workman leaves any dependants wholly dependent upon his earnings (6) a sum equal to his earnings in the employment of the same employer (c) diu^ing the three years next preceding the injury, or the sum of one hundred and fifty pounds, whichever of those sums is the larger, but not exceeding in any case three hundred pounds, provided that the amount of any weeklj^ payments made under this Act, (Did any lump sum paid in redemption thereof, shall be deducted from such sum, and, if the period of the workman's employment by the said employer (c) has been less than the said three years, then the amount of his earnings during the said three years shall be deemed to be one hundred and fifty-six times his average weekly earnings () See para. (2) (b) and (d) of this , , „ „, , , ,, ^, . , , , schedule and the notes thereon. Tlie s^'^ ^^^ P^''^ ^-) («) «* ^his schedule words " at the time of his death " have ^''^ *^« "°*^^ thereon, been omitted here : see in the definition (d) See para. (2) (a) and (b) of this of ■' dependants " the new words, "or schedule and the notes thereon. 680 STATUTORY LIABILITY OF EMPLOYERS. (ii) If the workman doos not leave any such dependants, but leaves any dependants in part dependent upon his earnings (ft), such sum, not exceeding in any case the amount payable under the foregoing provisions, as may be agi'eed upon, or, in default of agreement, maj' be determined, on arbitration under this Act, to bo reasonable and proportionate to the injury (r) to the said dependants ; and (iii) If he leaves no dejiendants, the reasonable expenses of his medi- cal attendance and burial, not exceeding ten pounds (/) ; (b) Where total or partial incapacity for work results from the injury, a weekly payment {(/) during the incaj)acity not exceeding fifty per cent, of his average weekly earnings ('/) during the previous twelve months, if he has been so long employed, but if not then for any less period during which he has been in the employment of the same employer (c) such weekly payment not to exceed one pound : Provided that — (a) If the incapacity lasts lesn than two weeks no compensation shall he payable in respect of the first week ; and (b) As respects the weekly payments duriny total incapacity of a ivorkman vho is under twenty-one years of age at the date of the injury, and v}hose average iveekly earnings are less than tivmty sltillings, one hun- dred per cent, shall he substituted for fifty per ce)it. of his average weekly earnings, hut the iveekly payment shall in no case exceed ten shillings. The words in italics are new. See for definition of " dependants," sect. 13, supra, and the notes there. A dependant made a claim and died before any award was made. Udd, that the right to compensation survived and passed to the dependant's legal personal repre- sentative : Darlington v. lioacoe, [1907] 1 K. B. 219. ^^ Avirm/e Weekly earnings.'''' See para. (2). The method of calculation is elabo- rately discu-ssed in Perry v. JFrif/ht, [1908] I K. B. 441. Where the employment is of such nature that the habitual giving and receiving of "tips" is open and notorious and sanctioned by the employer, those " tips " must be brought into account in estiniating the " average weekly earnings " : Penn V. Spiers 4- Fund, Ltd.. [1908] 1 K. B. 76G. (2) For the purposes of the provisions of this schedtde relating to " earnings " and "average weekly earnings^' of a workman, the following rules shall be observed : — (a) Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the workman was being [h) See note {h), ante. 1 K. B. 2.5, that, having regard to sub- [c) See note (c), ante. sect. (1) (a) (iii), an award under sub- {d) See note [d), ante. sect. (1) (a) (ii) might include a sum for (e) In Osmond v. Camphrll 4' Harrison, funeral expenses. Ltd.. [190.5] 2 K. B. 8.52, it was argued, (/) As to the procedure in such a on the strength of these words, that the case, see Workmen's Compensation county court judge had applied the Rules, 1907, r. 6. wrong principle in that he had not {(/) As to rules to be observed in deducted from the compensation awarded fixing this payment, see para. (.3) of this the cost of the maintenance of the de- schedule. A workman is not entitled to ceased workman ; but the Court of his wages as well as to compensation Appeal would not disturb the award. durinsr his period of disablement : Elliott It was held in Z^cfrtw v. 6';rt(CA7i«j/, [1U02] v. Liyyins, [1902] 2 K. B. 84. workmen's compensation Acr, 1006. 681 remunerated {gg)- Provided that where hy reason of the shortness of the time during which the workman has been in the employment of his employer, or the casual 7iature of the employment, or the terms of the employment, it is impracticable at the date of the accident to compute the rate of remu,neration, regard may he had to the average weekly amount tuhich, during the tiuelve months previous to the accident, was being earned by a person in the same grade employed at the same luork by the same employer, or, if there is no person so employed, by a person in the same grade em- ployed in the same class of employment and in the same district ; (b) Where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such emjiloyer, his average weekly earnings shall be computed as if his earnings under all such con- tracts were earnings in the employment of the employer for whom he mis working at the time of the accident ; (c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the luorknian was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause ; (d) Where the employer has been accustomed to pay to the workman a sum to cover any special expenses entailed, on him by the nature of his employ- ment, the sum so paid shall not be reckoned as part of the earnings. This paragraph is new. Sub-sect. (a). The first sentence enacts the principle laid down by the House of Lords in Lysoiis v. Andrew Knowles ^- Sons, Ltd., [1901] A. C. 79. It was there held that the general enactment in sect. 1 was in no way cut down by the schedule ; that there is no minimum period of employment necessary uuder the Act ; that the word "average " is loosely used, and simply means " that if a man was only employed at irregular intervals or at irregular amounts, you were to get at what the average was by puttiug them together and striking an average, so as to afford a test of the weekly sum to be paid" : per Lord Halsbury, ibid., at p. 87. In the case referred to, the applicant worked on Tuesday and Tliursday in the same calendar week, being paid (J.v. for each day as a piece-worker. He was injured on the Thursday. The colliery week began on Wednesday and ended on Tuesday night. The House of Lords restored the order of the county court judge, reducing the weekly pay- ment from 6.V. to 3cS. In Stuart v. Nixon ^- Bruce, [1901] A. C. 79, a case of death by accident after five days' work at daily wages, the same principle was applied. What then is the principle of calculation r It would seem to be this : Where there is a contract of employment at a fixed sum per week and there has been employment for two weeks or more, the " average weekly earnings" must be the contract amount: see per Lord Halsbury in Ltjsons v. Knowles, uln sup., at p. 87. Where there has been substantially continuous employment (see sub-sect, (c) and notes there) at irregular times ami varying wages for a year, the wages earned are to be added together and divided by 52 : Keast v. Barrow Hematite, ^c. (1899), \h Times L. R. 141 ; or in case of any less period by the number of weeks of such substantially continuous employment: Hewlett v. Hepburn (1899), 16 Times L. R. 56. If there has been employment for less than two weeks, whether under a weekly contract or as a casual labourer by the day or hour, and where therefore there is no material for striking an " average," strictly speaking, the question is : What sura, taking all the facts together, represents the eariiiugs per week lost to the workman "r" Or, put otherwise : What, in view of the facts before the Court, would the work- man have earned had he completed two or more weeks' work ? See per Collins, (gg) A seaman received a weekly sum computing the value to him of the board in cash and his board and lodghig on the and lodging provided by the employer, ship : Held, that having regard to the than (in the absence of special circum- circumstauces under which an ordinary stances) the actual cost of these allnw- seaman is necessarily engaged and paid, ances to the shipowner : Rosenquist v. there is no other practicable test for Bowring i^- Co., Ltd., \_i'dQ^'\ 2 'K.B.lO'i. 682 STATUTORY LIAHILITY OF EMPLOYERS. M. R., in At/res v. Buckcridge, [1902] 1 K. B. oT, 6o, 66. That sum, whatever it be, will be the " averiiffo weekly earniugs." Tlie questiuu larfjely dejjends upon whether there be a presumption of continued employment. In Aurrs v. JlKckcrtdyc, uhi si/p.. the workman had been promised employment for nixty hours a week at 7t,(/. per hour, subject to dismissal at an hour's notice. He worked four days on this basis, and was killed on the fourth day. His earnings in a week of sixty hours at lid. an hour would have been £1 17*. Gd. The jud<::e awarded the depen- dants that sum multiplied by lo6. The Court of Appeal upheld him. In Whcaln V. liliyunmj Iron Co., [1902] 1KB. o7, a haulier worked for eight days at 5.v. "Id. a day, when he was injured. He was awarded a weekly i)aymeut of 1.5.v. 6flf., being half the amouiit earned in one week of six days at o.v. 2^/. a day. The employers appealed and contended that, the workman having worked in two weeks, the whole amount he ean.ed should have been divided by two, so as to arrive at his " average weekly earnings." The apjjenl was dismissed. In Lysons v. Knoivhs, tihi sup., as Collins, M. R., points out in Aijres v. Buekeridge (I. c. p. 67), "the amount earned was divided by two because each day was in fact separated from the other by the custom of the colliery, so as to be in a different week, and there was no j)resumptiou of more than a day's labour in any week." See Walters v. f^lovrr, Clayto)ir in the port of Bi-istol. The Court of Appeal allowed the appeal on the ground that the amoimt had not been calculated with reference to the period during which the applicant had been "in the employment of the same employer." The nu^aning of this sub-section was considered in Terry v. Wright, [1908J 1 K. B. 441. Sub-se(5t. (b). The contracts must be '■^ concurrent,^'' i.e., running together. If, therefore, a man worked for A. on Monday and Wednesday, and for B. on Tuesday and Thursday, in each case under a contract made t'oi- the day on the morning of each day, the earnings with B., it is submitted, could not be considered in a claim against A., nor vice rersu. If, however, the contract with A. were to work on Monday and Wednesday, and with B. to work (m Tuesday and Thursday, and the man were injured on Tuesday, this sub-section would apply. But suppose the man were in- jured on Thvu-sday, when the contract with A. was at an end ? It is .submitted that in such a case, for the purposes of this sub-section, the contracts are " concurrent." Sub-sect. (c). The effect of the fir.st part of this sub-section is to overrule the decision in Price v. /. Marf,deii 4'- SmiK. [1899] 1 Q. B. 493. In that ease the workman had worked forty-niii(> weeks at 9». Gd. a week and three weeks at 13s. 8 of the year's wages together and divided them by .52, and the Court of Appeal upheld that method of computation. Under this Act, the "average weekly earnings " w^ould have been 1 -is. 8^. This principle may operate adversely to the workman. Cf. sect. 3 of the Employers' Liability Act, 1880. As to the meaning of this t-ub-section, see Ferry v. Wright, [1908] 1 K. B. 441. The last sentence of this sub-section is an adoption of the principle laid down in the d(t<;ision under the old Act, viz., that the eniploymeut must be "substantially continuous" : Joncn v. Ocean Coal Co., [1899] 2 Q. B. 124. This is a question of fact: Giles V. Beljord Smith S; Co., [1903] 1 K. B. 843. Such breaks as holidays do not matter; "the real question is whether there has been any break in the relation of master and servant" : ;jtfr Vaughan Williams, L. J., in /owes v. Ocean Coal Co., I. c. at p. 129; sec h'east v. Barrow Hematite Steel Co. (1899), 15 Times L. R. 141. There need not be work every day cf the week: Hathaway \. Argus Printing Co., [1901] 1 K. B. 96. In Applchy v. Horsehy, [1899] 2 Q. B. 521, the workman left work owing to an accident, and returned to work with the same masters after eleven months, at a different wage, and continued w^orking for them for seven months, when he was killed. Held, that there was a break in the em- ployment, and that the last period alone was to be considered. In Hewlett v. Hepburn ^ ('o. (1899), 16 Times L. R. 56, the apjdicant h;id worked for the re- spondents from August 1897, to February, 1899, with absences owing to illness from February 17th to May 12th, 1898, and from Augu.st 18tli to Sejjtember 3rd, 1898. No notice to terndnate the contract was given, the man's tools were left at the respondents' works, and he resumed w^ork wathout formal re-engagement. The Court of Apyieal upheld the county court judye in disregarding any period save that between September, 1898, and February, 1899. workmen's compensation act, 1906. 683 Sub-sect. (cl). This sub-section overrules the decision of the House of Lords in Midland Hail. Co. v. iSharpe, [1904] A. C. 341), wliere it was lield that a fixed sum paid in addition to his wages to a railway guard wiienever his duties required him to lodge away from home formed part of his "earnings." A colliery company deducted (>'/. from wages every weeii for lamp-oil supplied to the men ; this deduc- tion was disregarded in computing " earnings " [lloiyhlon v. Suiton Heath and Lea Green Collieries Co., [1901] 1 Q. B. 93); as, in Abram Coal Co., Ltd. v. Southern, [1903] A. C. 306, were deductions for cleaning lamps, oil, sharpening picks, and checking weights. The value of the use of a uniform provided by the employers to a servant for the purposes of the employment is to be taken into consideration in estimating his " earnings " : Great Northern Rail. Co. v. /)aM'.NOM, [UJOo] 1 K. B. 331 These decisions are unaffected by this sub-section. (3) lu fixing the amount of the weekly ])uyment, regard shall be had to any payment, allowance, ar htnefit which the workman may receive from the emploj'er during the period of his incaj^iicity, and in the case of partial inca- pacity the iveelcly payment shall in no rase exceed the dift'ei'ence between the amount of the average weekly earnings of the workman before the accident and the average lueekly amount which he is earning or is able to earn in some siiitahle employviejit or business after the accident, but shall bear such relation to the amount of that difference as under tJie circumstances of the case 7nay appear proper. This corresponds to para. (2) in the old Act. The words in italics are new. See para. (1) (b), .supra, and the notes thereon. The effect of that paragraph aud this, taken together, is to impose two maximums upon the average weekly pay- ment, and in some cases to cut down, by virtue of one provision, the maximum imposed by the other. Suppose the " average weekly earnings " to be 30s., and 20s. to be the average earnings after the accident, the average weekly payment cannot be more than 10*'. ; or, on the other hand, suppose the average weekly earn- ings before the accident to be 30.«., and 10.^. after the accident, the payment may not exceed 15 v. This paragraph settles the difiiculty raised in Illmcjicorth v. Walmsley, [1900] 2 Q. B. 142, though that would liave been a good decision under this Act. The county court judge may not lay down a general rule, but must exercise his discretion in each case : Webster v. Sharp ^- Co., Ltd., [1905] A. C. 284. Semble, that the value of an apprentice's tuition cannot be taken into account: Pomphreti v Sonthwark Press, [1901] 1 K. B. 8G. Money earned otherwi.se than in the employment of a master, e.g., money made in an independent business, is to be taken into account : Norman i\- Burt v. IFalder, [19U4] 2 K. B. 27. (4) Where a workman has given notice of an accident, he shall, if so required by the employer, submit himself for examination by a duly qualified medical practitioner provided and paid by the employer, and, if he refuses to submit himself to such examination, or in any way obstructs the same, his ri"'ht to compensation, and to take or prosecute any proceeding under this Act in relation to compensation, shall be suspended until such examination has taken place. See para. (15), infra. Para. (14) provides for examination after the award. See r. 55, Workmen's Compensation Rules, 1907, as to application for a suspen- sion. No compensation is payable in respect of the period of suspension : Sched. I. para. (20). A county court judge has not the power to make it a condition of his order that the employer pay the expeu.ses of the attendance of the workman's doctor at the examination: Oslmrn v. J'iekers, Suns ^- Maxim, Ltd., [1900] 2 Q. B. 91. This paragraph applies where a workman has not given notice of the accident : Ibid. (5) The payment in the case of death shall, unless otherwise ordered as herein- 684 STATUTORY LIABILITY OF EMPLOYERS. after provided, be paid into the count;/ court, and any sum so paid into court shall, subject to rules of court and the provisions of this schedule, be invested, (tfiplied, or otherwise dealt ivith by the court in such manner as the court in its discretion thinks ft for the benefit of the persons entitled thereto under this Act, arid the receipt of the registrar of the court shall be a sufficient discharge in respect of the amount paid in : Provided that, if so uyreed, the payment in case of death shall, if the workman leaves no dependants, be made to his legal personal representative, or, if he has no such representative, to the person to ivhom the expenses if medical attendance and burial are due. This is new. Cf. paras. (4) and (6) of Sched. I. of the Act of 1897 ; and see Daniel v. Ocean Coal Co., [1900] 2 Q. B. 250. See paras. (G), (8), (9)— (13) ; and see r. 56a of Workmen's Compensation Rules, 1907. Para. (6) of Sched. I. of the Act of 1897 gave a committee power to order the investment, &c. of a sum awarded to a dependant. See Sched. II. para. (16), and the notes there, as to the powers of a committee under that paragraj)!). The payee under an agreement or award must give a receipt : Sched. II. para. (14). See r. 4, Workmen's Compensation Rules, 1907, as to claims by dependants. (6) Rules of Cdurt may jirovidefor the transfer of money paid into court under this Act from one court to another, 7vhether or not the court from tuhich it is to be transferred is in the same part of the United Kingdom as the court to which it is to be transferred. This is new. See r. 76, Workmen's Compensation Rules, 1907. (7) Where a iveekly payment is payable under this Act to a perso7i under any legal disability, a county court may, on application being made in accordance with rules of court, order that the weekly payment be paid during the disability into court, and the provisions of this schedule with respect to sums required by this schedule to be paid into court shall apply to sums paid into court in pur- suance of any such order. This is new. See r. 57, Workmen's Compensation Rules, 1907. (8) Any question as to who is a dependant shall, in default of agreement, be setthul by arbitration under this Act, or, if not so settled before payment into court under this schedule, shall be settled by the county court, and the amount payable to each dej)endant shall be settled by arbitration under this Act, or, if not so settled before payment into court under this schedule, by the county court. Where there are both total and partial dependants nothing in this schedule shall he construed as preventing the compensation being idlotted partly to the total and partly to the partial dependants. The words in italics are new. See r. 5, Workmen's Compensation Rules, 1907, as amended by Workmen's Com- pensation Rules, 1908. (9) Where, on apjilication being made in accordance with rules of court, it appears to a county court that, on account of neglect of children on the part of a workmen's compensation act, 1906. 685 widow, or oti account of thv variation of the circumstances of the various dependants, or for any other sufficient cause, an order of the court or an award as to the apportionment amongst the several dependants of any sum paid as com- pensation, or as to the manner in which any sum payable to any such dependant is to be invested, applied, or otheriuise dealt with, ought to be varied, the court may make such order for the variation of the former order or the award, as in the circumstances of the case the court may think just. Thia is new. See r. fi8, Workmou's Cumpciisatiou Rules, 1907. (10) Any Slim which under this schedule is ordered to be invested may be invested in whole or in part in the Post Office Savings Bank by the registrar of the county court in his name as registrar. (11) Any sum to be so invested may be invested in the purchase of an annuity from the National Debt Commissioners through the Post Office Savings Bank, or be accepted by the Postmaster- General as a deposit in the name of the registrar as such, and the provisions of any statute or regula- tions respecting the limits of deposits in savings banks, and the declaration to be made by a depositor, shall not apply to such sums. (12) No part of any money invested in the name of the registrar of any county court in the Post Office Savings Bank under this Act shall be paid out, except upon authority addressed to the Postmaster-General by the Treasury or, suhjvd to regulations of the Treasury, by the judge or registrar of the county court. (13) Any person deriving any benefit from any moneys invested in a post office savings bank under the provisions of this Act may, nevertheless, open an account in a post office savings bank or in any other savings bank in his own name without being liable to any penalties imposed by any statute or regulations in respect of the opening of accounts in two savings banks, or of two accounts m the same savings bank. (14) Any workman receiving weekly payments under tliis Act shall, if so required by the employer, from time to time submit himself for examination by a duly qualified medical practitioner provided and paid by the employer. If the workman refuses to submit himself to such examination, or in any way obstructs the same, his right to such weekly payments shall be suspended until such examination has taken place. See para. (15) of this Schedule and the notes thereon. See r. 55, Workmen's CompensMtion Rules, 1907, as to application of suspension of payiueuts. And s"0 Schcd. I para. {20). The correspuuding paragraph (11) iu the Act of 1897 g'ave the right to require medical examination to "any perst)n by whom the employer is entitled under this Act to be iudemiiified," as well as to the employer. (15) A vjorkinan shall not be required to submit himself for examination by a medical practitioner under paragraph (4) or paragraph (14) of this schedule otherwise than in accordance tvith regulations made by the Secretary of State, or at more frequent intervals than may be prescribed by those regulations. Where a ivorkman has so submitted himself for examination by a medical practitioner, or has been examined by a medical practitioner selected by himself, 686 STATUTORY LIABILITY OF EMPLOYERS. and the employer or the workman, as the case may he, has vn'thin six days after such examination furnished the other with a copy of the report of that prac- titioner as to the workman's condition, then, in the event of no agreement being come to between the employer and the luorkman as to the workman's condition or fitness for employment, the registrar of a county court, o)i application being made to the court by both parties, may, on payment by the applicants of such fee not exceeding one pound as may be prescribed, refer the matter to a medical referee. The medical referee to whom the matter is so referred shall, in accordance tuith regulations made by the Secretary of State, give a certificate as to the condition of the workman and his fitness for employment, specifying, rvhere necessary, the kind of employment for which he is fit, and that certificate shall be conclusive evidence as to the matters so certified. Where no agreement can be come to between the employer and the workman as to whether or to what extent the incapacity of the -workman is due to the accident, the provisions of this paragraph shall, subject to any regulations made by the Secretary of State, apply as if the question tvere a question as to the condition of the workman. If a workman, on being required so to do, refuses to submii himself for examination by a medical referee to ivhoni the matter has been so referred as aforesaid, or in any way obstructs the same, his right to compensation and to take or prosecute any pyroceeding under this Act in relation to compensation, or, in the case of a workman in receipt of a weekly payment, his right to that weekly payment shall be suspended until such examination has taken place. Rides of court may be made for prescribing the manner in which documents are to be furnished or served and applications made under this paragraph and. the forms to be used for those purposes and, subject to the consent of the Treasury, as to the fee to be paid under this paragraph. This is new. Bj' regulations of the Secretary of State, dated June 28th, 1907, it is pro- vided : — 1. Where a workman has given notice of an accident, or is in receipt of weekly payments under the Act, he shall not be required to submit himself, against his will, for examination by a medical practitioner provided by the employer excejit at reasonable hours. 2. A workman in receipt of weekly payments shall not be required, after a period of one month has elapsed from the date on which the first payment of com- pensation was made, or if the first payment is made iu obedience to the award of a committee or arbitrator, from the date of the award, to submit himself, against his will, for examination by a medical practitioner provided by the employer, except at the following intervals : Once a week during the second, and once a month during the third, fourth, fifth and sixth mouths, after the date of the fir.^t payment or the award, as the case may be, and thereafter once in every two months. As to the duties of medical referees, and their appointment and payment, see sect. 10 and the notes thereon, supra. As to the allowance of the workman's expenses incurred in an examination by a medi('al referee as costs in the arbitration, see Workmen's Compensation Rules, 1907, r. 6 (4). As to the duties, procedure and remuneration of medical referees under this para- graph, see Parts I. and II. of the regulatious of the Secretary of State and the Treasury (St. R. & 0. 1907, No. 487), printed at p. 82C, infra ; and see r. 82, Workmen's Compensation Rules, 1907. As to +he procedure and co.sts of an application for reference under this para- graph, and the fee to be paid, see Workmen's Compensation Rules, 1907, r. 54, workmen's compensation act, 1900. 687 As to application for a suspension or stay, seo Workmen's Compensatiou Rules, 1907, r. o5. No payment is to be made in respect of the period of suspension, Sched. I. para. (20). By para. (13) Sched. II., it is provided: " No Court fee, except such as may be prescribed under para. (1/)) of the First Schedule to this Act, shall be payable by any party in respect of any proceedings by or against a workman under this Act in the Court prior to the award." (16) Any weekly payment may be reviewed at the request either of the employer or of the workman, and on such revieyv may be ended, diminished, or increased, subject to the maximum above provided, and the amount of payment shall, in default of agreement, be settled by arbitration under this Act: Provided tliat where the workman was at the date of the accident under twenty-one years of age, and the review takes place more than twelve months after the accident, the amount of the weekly -payment may he increased to any amount not exceed iny fifty per cent, of the weekly sum which the workman would probably have been earniny at the date of the review if he had remained uninjured, but not in any case exceeding one jiound. The proviso is new. See para. (1) (b), proviso (b) as to weekly payments in certain circumstances to workmen under twenty-one years of age ; and paras. (9) (d) (e) and (10) of Sched. II., which protect persons under legal disability in cases of compensation bj' agreement. The pro%'iso will apply in cases where the original award or agreement was under the Act of 1897. Where there is no drop in wages [ride para. (3) ), but there is evidence of loss of wage-earning capacity, nominal sums have been awarded to keep the right of "review" alive: Iroii.s v. JJiivies-, [1899] 2 Q. B. 330; Chandler v. Smith, ri899] 2 Q. B. 506 ; Pomphrey v. SouthwHrk Press, [1901] 1 K. B. 86. There must be a change in the circumstances of the case since the award or agreement fixing the weekly payment, or the last review thereof, in order to found an application for a review: Crossfield v. Tanian, [1900] 2 Q. B. 629; but this principle does not apply to a question of expert opinion as to the workman's condition and ability for work: Shnrnuai v. Hollidtiy. [1904] 1 K. B. 235. In the hiNt- mentioned case the county court jii'lge had by his award reduced the payment to a iioniinal amount; biit where he had, on the applicatinn for review, made an award that the weekly payments should be ended, on the ground that the incapacity had cea.scd, a subsequent application for review and increase of the payment was refused on the ground that the award was, upon the true construction of it, final : Xicholson V. I'tper, [1907] A. C. 215. On an application for review, the arbitrator is not bound to treat the agreement for or award of a weekly payment as enforceable up to the time of his decision, but has jurisdiction to inquire whether the incapacity had ceased when the application to review was made, or at any and what subsequent time before the liearing, and to make his award with reference to the date so determined : Morton ^- Co. v. Woodward, [1902] 2 K. B. 276. See rr. 8 — 12 and Form 5, Workmen's Compensation Rules, 1907. As to the position of a person against whom an employer claims indemnification, in the case of an application for review by the employer, see r. 25, Workmen's Compensation Rules, 1907. But in case the employer do not apjdy for a review, there is no provision or rule giN^ing the person against wliom indemnity is claimed the right to apply for a review : so that he might become the victim of a collusive arrangement between employer and workman, by which compensation continued after the workman's recovery. The point was raised in Thompson v. North Eastern Maruw Enijineeriug Co., [1903] 1 K B. 428. Kennedy, J., thus deals with it (p. 437) : "The answer, I think, is that, according to the general law of indemnity, the person indemnifying could in such a case compel the employer to let him use his name in any proceedinirs to enforce a review." A review by agreement may b^ inferred from the conduct of the parties: Bradbury v. Beduorth Goal and Iroti Co., Times Newspaper, March 7, 1900, p. 3. But see Wi/lianis v. Vauxhall Colliery Co., Ltd., [1907] 2 K. B. 433, where it was held by 688 STATUTORY IJARIT.ITY OF EMPLOYERS. the Court of Appeal that there was no evidence of abandonment by the workman of his ritrht to further compensation. For an instance of the rescission of an a,^-ee- meut endini,' the compensation, on the ground of misrepresentation, see Croxsan v. CaledoH ShiphitUduKj Co. (1906), W. N. 104 (in the House of Lords). (17) Where any weekly payment has been continued for not less than .six mouths, the liability therefor may, on application by or on behalf of the employer, be redeemed by the payment of a lump sum of such an amount as, where the incapacity is jwrmaneut, ivouhl, if invested in the purchase of an immediate life annuity from the National Debt Commissioners through the Post Office Savings Bank, purchase an annuity for the workman e(/ual to seventy-five percent, of the annual value of the weekly payment, and «s in any other case may he settled by arbitration under this Act, and such lump sum may be ordered by the committee or arbitrator or judge of the county court to be invested or otherwise applied for the benefit of the person entitled thereto : Provided that not/iing in this paragraph shall he construed as preventing agree- ments being made for the redemption of a iveekly payment by a lump sum. The words in italics are new. Under the Act of 1897 there was no maximum. As to investment and application of sums paid in ndemption under this para- trraph, see Workmen's Compensation Rules, 1907, r. 59. An employer may not apply for redempticra subject to a limitation as to amount ; he must leave the matter at large : Castle Spinning Company, Ltd. v. Atkinson, {\'dQ5'\ 1 K. B. 336. , . ;, ■ ^ In the case of rc^demption by agreement, the workman is protected aganist oppres- sion or fraud by paragraphs (9) (d) (e) and (10) of Sched. II. (18) If a loorkman receiving a weekly payment ceases to reside in the United Kingdom, he shall thereupon cease to he entitled to receive any weekly payment, unless the medical referee certifies that the incapacity rcsidting from the injury is likely to be of a permanent nature. If the medical referee so certifies, the workman shall be entitled to receive quarterly the amount of the iveekly payments accruing due during the preceding quarter so long as he proves, in such maimer and at such intervals as may be prescribed hy rules of court, his identity and the continuance of the incnparify in respect ofivhich the toeekly payment is payable. This is new. ^^ tit i » As to the fee and the procedure under this paragraph, see r. 60, Workmen s Compensation Rules, 1907 ; and Part III. rr. 14—18, of the Regulations, printed at p. 826, infra. (19) A weekly payment, or a sum paid by way of redemption thereof, shall not be capable of being assigned, charged, or attached, and shall not pass to any other person by operation of law, nor shall any claim be set off against the same. Costs incurred by the respondent after payment into Court may, in certain circumstanc. s, be deducted from the weekly payment: Rule 18, (6), (7), (8), Work- men's Compensation Rules, 1907. And see sect. 1, sub-sect. (4), supra, and Sched. II. (14). (20) Where under this schedule a right to compensation is suspended no compensation shall be payable in respect of the period of suspension. See paras. (4), (14), and (16), supra. workmen's compensation act, 1906. ^^^ (21) Where a scheme certified under this Act provides for payment of compensation by a friendly society, the provisions of the proviso to the first sub-section of section eight, section sixteen, and section forty-one of the Friendly Societies Act, 189G, shall not apply to .such society in respect of such scheme. The fjroviso referred to prohibits the registration of a society which contracts with any person for the assurance of an annuity exceeding 50/., or a gross sum exceeding 200/. Sect. 16 forbids the registration of "a society assuring a certain annuity," except upon condition of sending certified actuarial tables of contributions with the application for registration. Sect. 41 limits the amount of annuities or gross sums to be received by members. (22) In the application of this Act to Ireland the provisions of the County Officers and Courts (Ireland) Act, 1877, with respect to money deposited in the Post Office Savings Bank under that Act shall apply to money invested in the Post Office Savings Bank under this Act. SECOND SCHEDULE. Akbitration, &c. (1) For the purpo.se of settling any matter which under this Act is to be settled by arbitration, if any committee, representative of an emploj-er and his workmen, exists with power to settle matters under this Act in the case of the employer and workmen, the matter shall, unless either party objects by notice in wiiting sent to the other party before the committee meet to consider the matter, be settled by the arbitration of such committee, or be referred by them in their discretion to arbitration as herein-after provided. See notes on " The Arbitrator," at p. 657, supra. The committee is free as to procedure. As to the memorandum of the committee's award, see "Workmen's Comjjensation Rules, 1907, r. 42 (1). (2) If either party so objects, or there is no such committee, or the com- mittee so refers the matter or fails to settle the matter within six months fi-om the date of the claim, the matter shall be settled by a single arbitrator agreed on by the parties, or in the absence of agreement by the judge of the county court, according to the procedure prescribed by rules of court. See notes on " The Arbitrator," at p. 657, supra. The rules of court are printed at p. 695, infra. (3) In England the matter, instead of being settled by the judge of the county court, may, if the Lord Chancellor so authorises, be settled according to the like procedure, by a single arbitrator appointed by that judge, and the arbitrator so appointed shall, for the purposes of this Act, have all the powers of that judge. See notes on "The Arbitrator," at p. 659, supra. Sect. 10, sub-sect. (2), provides for the remuneration of an arbitrator appointed by the judge. This paragraph does not apply to Scotland : see para. (17) (c). There is no appeal direct to the Court of Appeal from the award of an arbitrator appointed under this paragraph : Gibson v. Wormald, [1904] 2 K. B. 40. See para . (4), infra. M. 1 Y 690 STATUTORY LIABILITY OF EMPLOYERS. (4) Tho Arbitration Act, 1S89, shall not apply to any arbitration nndor this Act; but a commitlce or an arbitrator may, if they or he think fit, submit any question of law for the decision of the judge of the county court, and the decision of tho judge on any question of law, either on such submission, cr in any case where he himself settles the matter under this Act, or luliere he gives any ilecision or makes any order umh-r this Act, shall bo final, unless within tho time and in accordance with the conditions proscribed by rules of the 8ui)remo Court either party aj^peals to the Court of Appeal ; and the judge of the county court, or the arbitrator appointed by him, shall, for the purpose of proceedings under this Act, have the same powers of procuring the attendance of witnesses and the production of documents as if the proceedings were an action in the count}' coiu't. The words in italics are new. Tlie " submissiun " by committee or iirbitrator is by special case: see r. 32, Workmen's Compensation Rules, 1907. See notes on "The Arbitrator." at p. GoS, sxpra. For procedure on appeal, see Workmen's Compensation Rules, 1907, r. 71. This paragrapli docs not apply to Scotland : see para. (17) (c). See the note " Appeal," on sect, o, supra. An appeal lies only on a question of law : Smith v. Lancashire and Yorkshire Rail. Co., [1899] 1 Q. B. 141. Where he gives any decision or makes, ifc. These words are very wide, and, it is submitted, would cover a refusal to review taxation of costs : if so, the decision in Eigbiji^- Co. v. Cox (No. 1), [1904] 1 K. B. 358, no longer stands: see para. (7), infra. (5) A judge of county courts may, if he thinks fit, summon a medical referee to sit ivith him as an assessor. This is new. See Workmen's Compensation Rules, 1907, r. 52, infra. As to medical referees, see sect. 10, supra. The remuneration of a mcditral referee summoned under this paragraph is fixed by Part IV. r. 19 of the Regulations of the Secretary of State and Treasury, dated June 24th, 1907, printed at p. 826, infra. (6) Rules of court may make provision for the appearance in any arbitra- tion under this Act of any part}' by some other person. See Workmen's Compensation Rules, 1907, r. 33. (7) The costs of and incidental to the arbitration and proceedings connected therewith shall be in the discretion of the committee, arbitrator, or judge of the county court, subject as respects such judge and an arbitrator appointed by him to rules of court. The costs, whether before a committee or an arbitrator or in the county court, shall not exceed the limit prescribed by rules of court, and shall be taxed in manner prescribed by those rules and such taxation may be reviewed by the judge of the county court. The words in italics are new. As to taxation of costs and review of taxation by judge see Workmen's Compen- sation Rules, 1907, rr. 61 — 64. In default of agreement the costs are to be taxed according to such of the county court scales as the tribunal may direct ; iu the absence of direction, according to the county court scale in fact applicable to the particidar case. An arbitrator has no jurisdiction to order a successful respondent to pay the applicant's costs : Jones v. Great Central Rail. Co. (1902), 18 Times L. R. 65 ; Andrews V. Groves (1900), 16 Times L. R. 297 ; nor to lay down a general rule as to costs in applications to review : Rigby (?• Co. v. 6'oa,- (No. 2), [1904] 2 K. B. 208. As to the " decision in Rigbij memorandum must, be filed before taking proceedings in a court other than that in which the original memorandum was recorded : Work- men's Compensation Rules, 1907, r. 74. The memorandum when recorded mav be enforced by an order of committal under the Debtors Act, 1869, s. .5: Jiaih';/ v. I'lant, [1901] 1 K. B. 31. See Workmen's Compensation Rules, 1907, r. 68. A claim was made and not disputed, and the amount claimed paid by the employers for many weeks : Jlrld, there was an agreement which should be registered : Junes v. Grent Central liuUiray (1902), 18 Times L. R. 6o. The retristrar cannot refuse to record the memorandum merely because, owing to altered circumstances, the workman is no longer entitled to the amount of compensation fixed by the agreement ; his only duty is to ascertain whether the memorandum accurately repres(>nts the agreement which has been entered into : Blakv v. Mulland Rml. Co., [1904] 1 K. B. o03. As to enforcement of an award, memorandum or certificate by execution or other- wise under the County Court Rules, see Workmen's Compensation Rules, 1907, rr. 67, 68, 69. (10) An (tfp'eement as to the redemption of a tueekly payment hy a lump sum if not rcijistered in accordance tuith this Act shall not, nor shall the payment of the sum puyahle under the agreement, exempt the person by ivhom the lueekly payynent is payable from liability to continue to make that weekly payment, and an agreement as to the amount of compensation to be paid to a person under a legal disability or to dependants, if not so registered, shall not, nor shall the pay- ment of the sum payable under the agreement, exempt the person hy luhom the compensation is payable from liability to pay compensation, unless, in either case, he proves that the failure to register was not due to any neglect or default on his part. . This is new. (11) Wliere any matter under this Act is to bo done in a county court, or by, to, or before the judge or registrar of a county court, then, unless the contrary intention appear, the same shall, subject to rules of court, be done iu, or by, to, or before the judge or registrar of, the county court of the district in which all the parties concerned reside, or if they reside in dilfereut districts, the district prescribed by rules of court, without prejudice to any transfer in manner provided by rules of court. The words in italics are new. See Workmen's Compensation Rules, 1907, rr. 73, 7.5 (transfer of proceedings) ; and Part I., 1 (vii) of the Regulations of the Secretary of State as to Medical Referees, at p. 827, infra. Where the accident happened in England and the employer lived in Scotland it was held that proceedings might be taken in the county <;ourt of the district where the accident took place: Hex v. Owen, [1902] 2 K. B. 430; but having regard to the absence of apt words in the former Act to meet such a case it has been provided by the Workmen's Compensation Rules, 1907, r. 11 (6) that ''where the acciident 0(;curred in England and any re-pondent resides in Scotland or Ireland, service on such respondent may be effected in accordance with this rule, and service so effected shall be deemed to be sufficient." workmen's compensation act, 1900. 69rj (12) The duty of a judge of county courts under this Act, or in England of an arbitrator appointed by him, shall, subject to rules of court, be part of the duties of the county court, and the officers of the court shall act accord- ingly, and rules of coui't may be made both for any purpose for which this Act authorises rules of court to be made, and also generally for carrying into effect this Act so far as it affects the county court, or an arbitrator appointed by the judge of the county court, and proceedings in the county court or before any such arbitrator, and su(!h rules may, in England, be made by the five judges of county courts appointed for the making of rules under section one hundred and sixty-four of the County Courts Act, 1888, and when allowed by the Lord Chancellor, as jirovided by that section, shall have full effect without any further consent. See Workmen's Compensation Rules, 1907, printed at p. 695, infra. (18) No court fee, except such ((s may he prescribed under paragi'uph (15) of the First Schedule to this Act, shall be paj^able by any party in resjiect of any proceedings by or against a workman under this Act in the court prior to the award. The fee referred to is that to be paid on an application for a reference to a medical referee under Sohed. I., para. (15). This has been fixed by a Treasury order, dated May 30, 1907 (priuted at p. 807, infra), at the amount prescribed by r. 54: (9) of the Workmen's Compensation Rules, 1907, which provides: " The tee payable by the applicant shall be calculated at the rate of one shilling in the pound on twenty-six times the amonnt of the weekly payments claimed by or payable to the workman, so that the total fee shall not exceed one pound." See generally as to Court fees and their amount, the Treasury order, priuted at p. 807, infra. (14) Any sum awarded as compensation shall, unless prM into court under this Act, be paid on the receipt of the j^erson to whom it is payable under any agreement, or award, and the solicitor or agent of a person claiming compensation under this Act shall not be entitled to recover from him any costs in respect of any proceedings in an arbitration under this Act, or to claim a lien in respect of such costs on, or deduct such costs from, the sum awarded or ay the workman in travelling to be examined by the medical referee, see Workmen's Compensation Rules, 1907, r. 61 (5). (Hi) The Secretary of State may, by order, either unconditionaUy or subject to such conditions or modifications as he may think fit, confer on any committee representative (f an emjiloyer and his ivorkmen, as respects any matter in luhich the committee act as arbitrators, or which is settled by uyreement submitted to and approved by the committee, all or any of the poivers conferred by this Act exclusively on county courts or judyes of county courts, and may by the order provide how and to ivhom the compensation money is to be paid in cases tvhere, but for the order, the money would be required to be paid into court, and the order may exclude from the operation of provisoes (d) and (e) of paragraph (9) of this Schedule ayreements submitted to and approved by the committee, and may contain such incidental, consequential, or S7ipj->lemental provisions as may appear to the Secretary of State to be necessary or proper for the purposes of the order. This is new. See notes on " The Arbitrator," at p. 658, s^(pra. Powers under this paragraph have been conferred on the Durham Colliei'y Owners' and Miners' Joint Committee. (17) Tn the application of this Schedule to Scotland — (a) " County court judgment" as used in paragraph (9) of this Schedule means a recorded decree arbitral : (b) Any application to the sheriff as arbitrator shall be h(nird, tried, and determined summarily in the manner provided by section fifty-two of the Sheriff Courts (Scotland) Act, 1876, save only that parties may be represented by any person authorised in writing to appear for them and subject to the declaration that it shall be competent to either party within the time and in accordance with the conditions prescribed by act of sederunt to require the sheriff to state a case on any question of law determined by him, and his decision thereon in such case may be submitted to either division of the Court of Session, who may hear and determine the same and remit to the sheriff with institiction as to the judgment to be pronounced, and an appeal aliall lie from either of such divisio7is to the House of Lords: (c) Paragraphs (3), (4), and (8) shall not apply. The words in italics are new. It was decided in Osborne v. Barclay, Curie ^- Co., [1901] A. C. 269, that, having regard to the terms of the coiTesponding paragraph (14) in the Act of 1897, no appeal lay from the Court of Session to the House of Lords. That right of appeal is now given in terms. (18) In the application of this schedule to Ireland the expression "judge of the county court" shall include the recorder of any city or town, and an appeal shall lie from the Court of Apjpeal to the House of Lords. The words in italics are ne^v. workmen's compensation act, 1906. THIRD SCHEDULE. 695 Description of Disease. Anthrax - - - - - Lead poisoniny or its soqiioliJO Mercury poisoning or its sequelae Phosphorus poisoning or its sequekie. Arsenic poisoning or its sequelae Ankylostomiasis _ - _ Description of Process. Handling of wool, hair, bristles, hides, and skins. Any process involving the use of lead or its preparations or compounds. Any process involving the use of mercury or its preparations or compounds. Any process involving the use of phos- phorus or its preparations or compounds. Any process involving the use of arsenic or its preparations or compounds. Mining. Where regulations or special rules made under any Act of Parliament for the protection of persons employed in any industry against the risk of con- tracting lead poisoning require some or all of the persons employed in certain processes specified in the regulations or special rules to be periodically examined by a certifying or other surgeon, then, in the application of this schedule to that industry, the expression " process" shall, unless the Secre- tary of State otherwise directs, include only the processes so specified. This is new. See sect. 8, supra. See the Order of the Secretary of State, printed in the notes to sect. 8, extending- the provisions of that section to other diseases. Special rnles of the nature referred to have been made under the Factory Act, 1901 ; see p. 507, mpra. MASTER AND SERVANT. Workmen's Compensation Act, 1906. The Workmen's Compensation Eules, 1907 and 1908(//). The Workmen's Compensation Rules, 1898, the Workmen's Compensation Formerrules, Rules, 1899, and the Workmen's Compensation Eules, 1900, are hereby 1^"^J^^^ annulled, but shall continue to apply to cases where the accident happened before the commencement of the Workmen's Compensation Act, 1906, except 6 Edw. 7, so far as the provisions of that Act and of those Eules relating to references c. 58. to medical referees and proceedings conseqvrential thereon apply to those cases. (A) These latter riiles came into operation on May 1, 1908. The follow- ing note is prefixed to them : " These Rules may be cited as the Workmen's Compensation Rules, 1908, or each Rule may be cited as if it had been one of the Workmen's Compensation Rules, 1907 (herein referred to as the principal Rules), and had been numbered therein by the number of the Rule placed in the margin opposite such Rule." 696 STATUTORY I.IAHILITY OF EMPLOYERS. Effect, short title, com- mcneomcnt, and construc- tion of Rules 6 Edw. 7, c. 58. 52 & 53 Vict, c. 63. Preliminary. 1. — (1) The following Rules shall have effect under the Workmen's Com- pensiition Act, 1906 (in these Eules referred to as the Act), with reference to any matter or proceeding for the regulation of which Rules of Court may be made under the Act, and generally for carrpng the Act into effect so far as it affects the County Court or an arbitrator appointed by the judge of the County Court, and proceedings in the CouTity Court or before any such arbitrator. (2) These Rules may be cited as the Workmen's Compensation Rules, 1907, and shall come into operation on the first day of July, one thousand nine hundred and seven ; but they shall not, except so far as they relate to refer- ences to medical referees and proceedings consequential thereon, ajjply to any case where the accident happened before the commcmcument of the Act. (3) Expressions used in these Rules shall have the same meaning as the same expressions used in the Act. (4) The Interpretation Act, 1889, shall apply for the purpose of the intor- pnjtatiou of these Rules as it a])plies for the purpose of the interpretation of an Act of Parliament. (5) These Rules shall also be read and construed with the County Coiu't Rules, 1903, and the County Court Rules of subsequent date amending the same ; and any Order and Rule referred to by number in these Rules shall mean the Order and Rule so numbered in the County Court Rules, 1903, or in any County Court Rules of subsequent date, as the case may be. Parties to arbitration. Ord. III. Rule 2. Joinder of applicants. Ord. III., Rule 1. Ord. XLIV., Rules 18, 19. Application by depen- dants. Partits to Arbitration before Juihje or Arbitrator appointed hi/ Jndge. 2. — (1) When ap]>Iication is made for the settlement by the judge, or by an arbitrator appointed by the judge, of any matter which under the Act is to be settled by arbitration, the party making such application shall be called "the applicant"; and, subject to these Rules, all other persons whose presence at the arbitration may be necessary to enable the j udge or arbitrator effectively and completely to adjudicate upon and settle all the questions involved shall be made parties to the application, and shall be called " the resi^ondents." (2) In any case in which both the principal as defined by the Act and a contractor with him are alleged to be liable to pay compensation under the Act, Order III., Rule 2, as to joinder of parties, shall apply. 3. More persons than one may be joined as applicants in one arbitration, in any case in which such persons might be joined in one action as plaintiff's under Order III., Ride 1 ; and that Rule, and Rules 18 and 19 of Order XLIV., shall, with the necessary' modifications, apply to any such arbitration. 4. — (1) An application on behalf of the dependants of a deceased workman for the settlement by arbitration of the amount payable as compensation to such dependants may be made by the legal personal representative, if anj'-, of the deceased workman on behalf of such dependants, or by the dependants themselves ; and in either case the particulars to be filed as hereinafter men- tioned shall contain particulars as to the dependants on whose behalf the application is made. (2) Provided, that if there is any conflict of interest between the deiiendants workmen's compensation rules. 697 themselves, or if any dependants neglect or refuse to join in an application, the application may be made by or on behalf of some only of such dependants, the other dependants m either case being named as respondents. (3) In the construction of this rule the term " dependants " shall include persons who claim or may be entitled to claim to be dependants, but as to whose claim to rank as dependants any question arises. 5. — (1) In any case in which the amount payable as comi)eusation to the Application dependants of a deceased workman has been agreed upon or ascertained, but ^^ depou- any question arises as to who are dependants, or as to the amount payable to ^^^.^ Sched I each dependant, an application for the settlement of such qiiestion by arbi- para. 8, where tration may be made either by the legal personal representative, if any, of ^°iount of the deceased workman on behalf of the dependants or any of them, or by ao-reed or such dependants or any of them, against the other dependants, and the ascertained, jjersons claiming or who may be entitled to claim to be dependants, but as to whose claim to rank as such a question arises ; or such application may be made by the persons claiming to be dependaTits, but as to whose claim to rank as such a question arises, or any of them, against the legal personal representative, if any, of the deceased workman, and the dependants, and such of the jDorsons claiming or who may be entitled to claim to be dependants as are not applicants. (2) In any such case, if the employer has j)aid the agreed or ascertained amount of compensation , it shall not be necessary to make him a resi:)ondent, but if such compensation or any part thereof is still in his hands he shall be made a respondent. (3) The em{)loyer, if made a resjioudent, may pay the amount of compen- sation in his hands into court, to be dealt with as the judge or arbitrator shall direct, and thereupon further proceedings against him shall be stayed. (4) The registrar shall within twenty-four hours from the time of payment made pursuant to the last i^recediug paragraph send notice thereof to the applicant and to the other respondents (if any), and the employer shall not be liable to any costs otherwise than in accordance with jiara. 5 (c) of Eule 18. Para. (4) is added by r. i of the Workoieu's Compensation Rides, iyo8. 6. — (1) An application for the settlement by arbitration of the sum pay- Parties to able in respect of medical attendance on and the buiial of a deceased work- arbitration man who leaves no dependants shall be made by the legal personal repre- payable for sentative, it anj-, of the deceased workman. If there is no such legal medical personal representative, the application may be made by any person to whom ^ f^ ^'^^f any such expenses are due. In the latter case any other person known to j^^f gnhed I the applicant as a person to whom any such expenses are due shall be joined para. 1 (a)(iii). in the application either as applicant or respondent. (2) In any case in which application is made for the settlement bj' arbi- Apportion- tration of such amount, the amount awarded, if insufiBcient for the payment ™^^'' °* ^^ch of such expenses in full, shall be apportioned between the persons to whom such expenses are due in such manner as the judge or arbitrator shall direct. 7. The provisions of Rules 7 and 8 of Order III., as to parties suing or (J-^^tIm^^^ ^^ defending on behalf of other persons haying the same interest, and the pro- and partners ; visions of the County Court Rules as to persons under disability and partners representa- ^ suing and being sued, shall, with the necessary modifications, apply to pro- havino- the ^^^ ceedings by way of arbitration under the Act. same interest. 698 STATUTORY LIABILITY OF KMPLOYKRS. Request for arbitratioii. Particulars. AiJpliattioii for Arhitrativn. 8.— (1) An application for the settlement of any matter by arbitration shall not bo made unless and until some question has arisen between the parties, and such question has not been settled by agreement. (2) Where any question has aiisen and has not been nettled by agreement, an a])plication for the settlement of the matter by arbitration shall bo made by the apj^licaut tiling with the registrar a request for arbitration, in- tituled in the matter of the Act and in the matter of the arbitration, which request shall state concisely the question which has arisen, and shall, with the subsequent proceedings thereon, be recorded in the special register here- inafter mentioned. (3) Particulars shall be appended or annexed to the request, containing — (a) A concise statement of the circumstances under which the application is made, and the relief or order which the applicant claims ; (b) The date of service of notice of the accident on the employer, or, if such notice has not been served, the reason for such omission ; and (c) The full names and addresses of the respondents and of the applicant, and of his soUcitor, if the proceedings are commenced through a solicitor. 9.— (1) The rcqiiest and particulars shall be according to such one of the forms in the Appendix as shall be applicable to the case, with such modifi- cations as the nature of the case may require. (2) A copy of the notice of the accident shall be appended or annexed to the particulars. If this rule cannot be comj^lied with, the reason for the omission shall be stated in the particulars. 10. — (1) Where an employer on whom a claim for compensation has been made desires to make an application for the settlement of any matter by arbitration, he shall tile a request for arbitration in accordance with Rule 8, to which the workman, or the legal personal representative, if any, and the persons claiming or who may be entitled to claim to be dependants of a deceased workman, or the other persons (as the case may be) on whose behalf the claim was made, shall be respondents. (2) Particulars shall be ajipended or annexed to the request, containing — (a) A concise statement of the circumstances under which the application is made ; (b) A statement whether the a2)plicant admits his liability to pay compen- sation, or denies such liability, wholly or pai-tially, with (in the latter case) a statement of the grounds on and extent to which he denies liability ; (c) A statement of the matters which the applicant desires to have settled by arbitration ; and (d) The full names and addresses of the respondents and of the applicant, and of his solicitor, if the proceedings are commenced through a solicitor. Copies for 11. The applicant shall deliver to the registrar with the request and par- judge and ticulars a copy thereof for the judge or arbitrator, and a copy for each respondents. ^^^^^^^^^^ to be served. Forms of request and particulars. Forms 1 to 11. Application by employer. workmen's compensation rules. B^^9 12. AVhere the applicant is illiterate and unable to furnish the required Where information in writing, the rcciuest and particulars and copies shall he filled applicant is , ,1 . , ,11 illiterate, up by the registrar s clerk. Proceedim/s on Arhitration hefore Judge. FixiiKj Doji (I lid l'/<(ce for Arhitration. 13.— (1) On the filing of a request for arbitration, the registrar shall Fixing- day transmit a copy of the request and particulars to the judge, who shall as and place for soon as conveniently may be (if he decides to settle the matter himself) appoint a day and hour for jsroceeding with the arbitration. Such day shall be so fixed as to allow the co^^ies of the request and particvilai's to be served on the respondents at least twentj^ clear days before the day so fixed. (2) The arbitration shall, subject as hereinafter mentioned, be held at the place at which the court is held. (3) Provided, that the judge may direct that the arbitration shall be held at any other place within the district of the court, on application in that behalf made by any party to the arbitration, and on such party filing an undertaking to provide at his own expense a place to the satisfaction of the judge in which the arbitration may be held, and to pay the necessary expenses of the judge and officers of the court attending at such jjlace. (4) If such direction is given before the notices mentioned in the next following rule are issued, the registrar shall insert in such notices the place at which the arbitration has been so directed to be held. (5) If such direction is given after such notices have been issued, the registrar shall forthwith send notice by jDost to the parties of the place at which the arbitration has been so directed to be held. Notice of Da// Fixed. 14. — (1) On the day for proceeding with an arbitration being fixed, the Notice to registrar shall give or send by post notice in writing to the applicant, stating P'^^'^^*^®- the place at which and the day and hour on and at which the arbitration will be proceeded with, and shall issue the coj^ies of the request and particulars, under the seal of the court, for service on the respondents, together with Forms 12, 13. notices signed hy the registrar himself, and (,/) under the seal of the court, stating the place at which and the day and hour on and at which the arbi- tration will be proceeded with, and that if the respondents do not attend in person or by their solicitors such order will be made and i^roceedings taken as the judge may think just and expedient. (2) Where the request is filed by an employer, the notices to be served on Notice where the respondents shall be modified by the omission of the words therein employer is relating to the denial or admission of liability to pay compensation. ^^^ icaat. Form 13. Service on Respondents. 15.— (1) The copies and notices mentioned in the last precedhig rule shall Service on be served on the respondents at least twenty clear days before the day fixed respondents, for proceeding with the arbitration. (/) The words in italics are eliminated by r. 3, Workmen's Compensation Rules 1908. 700 STATUTOKY TJARTLITY OF EMPLOYERS. Act, sect. 2, sub-sects. 3, 4. Where service effected otherwise than by bailiff. Service by post. Service on respondent in Scotland or Ireland. (2) The copies and notices mentioned in the last preceding rule may be served — (a) By a baililf of a court ; or, at the request of the ajjplicant or his solicitor, (b) By the applicant, or some clerk or servant in his permanent and exclusive employ ; or (c) By the applicant's solicitor, or a solicitor acting as agent for such solicitor, or some person in the employ of either of them, or some person employed by either of them to serve such copies and notices, who might be so employed to serve a writ in an acticm in the High Court. (3) Service may be efTcctcd either in accordance with the rules as to service of default summon.ses, or by registered post in accordance with the provi- sions of sub-sections ;j and 4 of section 2 of the Act with reference to service of notice in respect of an injury, and tlie provisions of those sub-sections shall applj' to such service. (4) "Where service is effected otherwise tlian bj' a bailiff, a copy of the document served, with the date and mode of service indorsed thereon, shall, within three clear days next after the date of service, or such further time as may be allowed by the registrar of the court issuing such document, be delivered or transmitted to such registrar by the applicant. The applicant shall also (unless the respondent files an answer) after the time limited for filing an answer, deliver or transmit to the registi-ar an affidavit of the service of such document, according to Form 31 in the Ai)pendix to the County Court Rules, with such variations as the circumstances of the case may require. (5) Where a document is served by post it shall, unless the contrar)'' be proved, be deemed to have been served at the time when the letter containing the same would have been delivered in the ordinary course of post, and in proving the service of such document it shall be sufficient to i)rove that the same was pi'ojierly addressed and registered. (()) Where the accident occurred in England, and any respondent resides in Scotland or Ireland, service on such respondent may be effected in accor- dance with this rule, and service so effected shall be deemed to be sufficient. Stay of proceedings in other arbitrations to abide decision as to liability in selected arbitration. Ord. VIII., Rules 2—6. Stay of Proceedings. 16. Where several requests for arbitration are filed by different applicants against the same respondent in the same court in respect of matters arising out of the same circumstances, the respondent may, on filing an undertaking to be bound, so far as his liability to pay compensation is concerned, by the award in such one of the said arbitrations as may be selo(!ted by the judge, apply to the judge under Order VIII., Rvile 2, for an order to stay proceedings in the arbitrations other than the one so selected until an award is made in such selected arbitration ; and Rules 2 to 6 of Order VIII. shall, with the necessary modifications, apply accordingly. workmen's compensation rules. '^1 Aiisiuer hy Respondent, 17.— (1) If any respondent desires to disclaim any interest in the subject- Answer by matter of an arbitration, or considers that the applicant's particulars are in r<^^Po^ any respect inaccurate or incomijlete, or desires to bring any fact or docu- ment to the notice of the judge, or intends to rely on the fact that notice of the accident, or of death, disablement, or suspension, was not given as required by the Act, or that the claim for compensation was not made within the time limited by the Act, or intends to deny (wholly or partially) his liability to pay compensation under the Act, he shall, ten clear days at least before the day fixed for proceeding with the arbitration, file with the registrar an answer, stating his name and address, and the name and address of his solicitor (if any), and stating that he disclaims any interest in the Form 14. subject-matter of the arbitration, or stating in what respect the applicant's particulars are inaccurate or incomplete, or stating concisely any fact or document which he desires to bring to the notice of the judge, or on which he intends to rely, or the gi-ounds on and extent to which he denies liability. (2) The respondent shall with such answer file copies thereof for the applicant and the judge, and one copy for each of the other respondents ; and the registrar shall within twenty-four hours after receiving such copies transmit the same by post to the applicant and the judge and the other respondents respectively. (3) Subject to any answer so filed, and to the provisions of the next following paragraph, the apjilicant's particulars, and, in the case of a claim for compensation, the liability to pay compensation under the Act, shall be taken to be admitted. (4) Provided, that in case of non-compliance with this rule, and of the applicant's not consenting at the arbitration to permit a respondent to avail himself of any matter of which he should pursuant to this rule have given notice hy filing an answer, the judge may, on such terms as he shall think fit, either proceed with the arbitration and allow the respondent to avail himself of such matter, or adjourn the arbitration to enable the respondent to file such answer. (5) The provisions of this rule shall, with the necessary modifications, Answer apply to a case in which a request for arbitration is filed by an employer ; ^ ®[*^ , ■ but a respondent who fails to file an answer shall not be taken to admit the applicant, truth of any statement in the applicant's particulars in which he denies, wholly or partially, his liability to pay compensation. Siilnm'ssion to Aivar'l or Payment into Court by Respondent. 18. — (1) Where a respondent from whom compensation is claimed admits Submission liability, he may at any time before the day fixed for proceeding with the ^"^ award or •'''■' •' i o payment into arbitration,— court by (a) Where the application is made by an injured workman, file with the respondent, registrar a notice that the respondent submits to an award for the *^'^™ °* payment of a weekly sum, to be specified in such notice ; or 702 STATUTORY LIABILITY OF EMPLOYERS. Forms 16, 17. Acceptauce of weekly payment offered. Form IS. Acceptance of sura paid into court. Form 18. Procedure if weekly pay- ment offered or sum ])aid in is accepted, (b) Where the application is made on T)ohalf of the dependants of a deceased worknian, ov for the settlement of the sum payable in respect of medical attendance on and the burial of a deceased workman who leaves no dependants, pay into court such sum of money as the respondent considers sufficient to cover his liability in the circum- stances of the case. (2) The re^^istrar shall within twenty-four hours from the time of any notice filed or pajnnent made pursuant to the last preceding paragraph send notice thereof (with, where a notice is filed, a copy of such notice) to the applicant, and to the other respondents (if any). (3) If the applicant is a workman, and elects to accept in satisfaction of his claim the weekly payment specified in the respondent's notice, he shall send to the registrar and to the respondent by post, or leave at the registrar's office and at the residence or place of business of the respondent, a written notice according to the form in the Appendix, stating such acceptance, within such reasonable time before the day fixed for proceeding with the arbitration as the time of filing of notice of submission by the respondent has permitted. (4) If the application for arbitration is made on behalf of the dependants of a deceased workman, or for the settlement of the sum payable in respect of medical attendance and hurial as aforesaid, and the apiilicant is willing to accept the sum paid into court in satisfaction of the compensation payable to the dependants, or in respect of such medical attendance and burial (as the case may be), he shall send to the registrar and to the rcsjjondent by post, or leave at the registrar's office and at the residence or place of business of the respondent, a written notice of such willingness, according to the form in the Appendix, within such reasonable time before the day fixed for pro- ceeding with the arbitration as the time of payment into court by the respondent has permitted. If there are any other respondents, the applicant shall in like manner give notice of such willingness to such respondents ; and if any of such respondents are willing to accept the sum paid into court in satisfaction of such compensation as aforesaid, they shall in like manner give notice of such willingness to the registrar and to the applicant and the other respondents. (o) If the applicant is a workman, and elects to accept in satisfaction of his claim the weekly payment submitted to by the respondent, or if in any other case the applicant and all the respondents give notice of their willing- ness to accept the sum paid into court, the following provisions shall apply :— (a) "Where the respondent submits to an award for the payment of a weekly sum, the judge may, on application made to him in or out of court, forthwith make an award directing payment of such weekly sum accordingly ; (b) Where the respondent has paid money into court, further proceedings ao-ainst such respondent shall be stayed, except as hereinafter men- tioned; and (i) If the applicant and the other respondents agree as to the apportionment and application of such sum, the judge may, on application made to him in or out of court on behalf of or with the workmen's compensation rules. ~'*''^ consent of all sucli parties, forthwitli mako an award for such appor- tionment and application ; (ii) In any other case the arbitration may proceed as between the applicant and the other respondents. (c) In any such case the judge may, in his discretion, by his award order Costs the respondent filino- notice of submission to an award or paying P'''^y''^ '■^ J ^ ° . I ./ o vespondeiit. money into court to pay such costs as the applicant and the other respondents, or any of theixi, may have properly incurred before the receipt of notice of submission to an award or payment into court, including, if the jiidge on consideration of the facts of the case shall so order, any items which might have been allowed by order of the judge at the hearing of the ai'bitration. (d) If the applicant or any respondent intends to apply for any such costs, rorm 18. he shall give notice of his intention in his notice of acceptance, according to the form in the Appendix ; or where the time of filing notice of submission to an award or the time of payment into court by the respondent does not jiermit of notice of acceptance being given, the applicant or any respondent may apply for such costs without giving such notice. (6) Where any party has not given notice of acceptance in accordance with Acceptance this rule, he may nevertheless accept the weekly payment which the ^ ^^J time respondent has submitted to pay, or the sum paid into coui't, at any time arbitration before the arbitration is called on and opened, subject to the payment of any opened, costs which may have been reasonably incurred by the respondent since the Costs, date of filing notice of submission or the date of payment into court, and which may be allowed by the judge ; and the judge may order any costs so allowed to be paid by the party so accepting, and maj order such costs to be set off against any costs payable to such party, or to be deducted from any weekly payment or compensation awarded to such party. (7) In default of notice of acceptance by the applicant and all the Procedure respondents, the arbiti'ation may proceed ; but if no greater weekly payment i^^^ costs if or compensation is awarded than that which the respondent has submitted to ^^,' J ^^"^ pay or has paid into court, such respondent shall not be liable to pay any sum paid in further costs than such as he might have been ordered to pay if the weekly i'* ^lo* payment offered or sum paid into court had been accepted; and the judge ' ^ may order any costs incurred by such respondent after notice of submission to an award or payment into court to be paid by any party who has not given notice of acceptance of such weekly payment or sum, and may order such costs to be set off against any costs payable to such party, or to be deducted from any weekly payment or compensation awarded to such party. The judge may also order any costs incurred after notice of payment into court by any party who has given notice of acceptance to be paid by any other party who has not given such notice, and to be deducted from any compensation awarded to such last-mentioned party. (8) The provisions of this rule shall, with the necessary- modifications. Submission apply to a case in which an employer who has filed a request for arbitration to award or admits liability to pay compensation, payment mto ■^ * ■ * court where employer is applicant. 704 STATUTORY LIABILITY OF EMPLOYERS. Notice of claim tt) indoiimity under sect. Form 23. Appearance by tliird party. "Where notice not served in due time. Proceedings on default of appearance by third party. Appli(;ation for directions. What directions may bo given. Notice to Parties against whom Tndemnitji claimed under section 4. 19. Where a respondent claims to bo entitled under section 4 of tlie Act to indonmitj' afjaiust any person not a party to the arbitration, lie shall, ten clear days at least before tbe day fixed for proceeding with the arbitration, file a notice of his claim according to the form in the Appendix ; and the registrar shall seal such notice and deliver it to the respondent, who shall serve the same, together with a cojij^ of the applicant's request and parti- culars, and of the notice served on the respondent under Rules 14 and 15, ujion the person against whom such claim is made ; and the provisions of paragraphs 2 to G of Rule 15 shall apply to such service. 20. If any person served uath a notice under the last preceding rule (herein-after called the third party) desires to dispute the applicant's claim in the arbitration as against the respondent on whose b(!half the notice has been given, or his own liability to such resjwndent, he must appear before the judge on the day fixed for proceeding with the arbitration, or on any day to which he may have received notice from the registrar that the arbitration has been adjourned or postponed ; and in default of his so doing he shall be deemed to admit the validity of any award made against such respondent as to any matter which the judge has jurisdiction to decide in the arbitration as between the applicant and the respondent, whether such award is made by consent or otherwise, and his own liability to indemnify the respondent to the extent claimed in the notice served on him by the respondent. Provided, that if it appears to the judge before or at the arbitration that the notice of claim has not been served on the third party in time to enable him to appear on the day herein-before lueutioued, or that for any other sufficient cause the third party is unable to a])pear on such day, the judge may adjourn the proceedings in the arbitration ou such terms, as to costs and otherwise, as may be just. 21. If the third party fails to appear on the day mentioned in Rule 20, or, if the proceedings are adjourned under that rule, on the day to which the proceedings are adjourned, then if the arbitration results in an award in favour of the applicant, or the arbitration is finally decided in favour of the applicant otherwise than by an award, the judge may on the application of the i-espondent make such award as the nature of the case may require in favour of the respondent against the third party : but execution thereon shall not issue without leave of the judge until after satisfaction by the respondent of the award against him, or the amount recovered against him. Provided, that the judge may set aside or vary any award made against the third party under this rule upon such terms as maj' be just. 22. The third party or the respondent may apply before or at the arbitra- tion to the judge for directions : and the judge, upon the hearing of tlie application, may, if satisfied that there is a question proper to be determined as to the liability of the third party to make the indemnity claimed, in whole or in part, order the question of such liability as between the third party and the respondent giving the notice to be determined at or after the arbitration, and if not so satisfied may make such award as the nature of the case may require in favour of the respondent giving the notice against tin; tliird part)- : or the judge may, if it appears dtssirable so to do, give the third party leave workmen's compensation rules. 705 to resist the claim of the applicant against the respondent npon such terms as may be just, or to appear at the arbitration and take such part therein as may be just, and generally may give such directions as he may think proper for having the question most conveniently determined, and as to the mode or extent in or to which the third party shall be bound or made liable by the award in the arbitration. 23. The judge may decide all questions of costs as between a third party Costs. and the other parties to the arbitration, and may order any one or more to pay the costs of any other or others, or give such directions as to costs as the justice of the case may require. Notice to Pdrtii-s againd luhom Indevmiti/ claimed under section 6, or otherwise. 24.^(1) Where a respondent claims that if compensation is recovered Notice of against him he will be entitled under section 6 of the Act, or otherwise than inclemnitv under section 4, to indemnity against any person not a party to the arbitra- under sect. 6, tion, he shall file and serve a notice of his claim in accordance with Rule 19. °^ otherwise than under (2) If any person served with a notice under the last preceding paragraph sect. 4. (herein-after called the third party) desires to dispute the applicant's claim Form 23. in the arbitration as against the respondent on whose behalf the notice has If person been given, he mu^t appear before the judge on the day fixed for proceeding ^^^'^^d makes with the arbitration, or on any day to which he may have received notice appearino- he from the registrar that the arbitration has been adjourned or postponed; is to be and in default of his so doiug he shall be deemed to admit the validity of any ^leemed to award made against such respondent as to any matter which the judge has validity of jurisdiction to decide in the arbitratiou as between the applicant and the award against respondent, whether such award is made by consent or otherwise. respondent. Provided, that if it appears to the judge before or at the arbitration that Where notice the notice of claim has not been served on the third party in time to enable not served in him to appear on the day herein-before mentioned, or that for any other ^^^ time, sufficient cause the third party is unable to appear on such day, the judge may adjourn the proceedings in the arbitration on such terms, as to costs or otherwise, as may be just. (3) The third party or the respondent may apply before or at the arbitra- Application tion to the judge for directions; and the judge, upon the hearing of the to judge for application, may, if it appears desirable so to do, give the third partv leave ^^^'^^^^^ns as , . , , , , . JT ^■ , • i 1 n r J to conduct of to resist the claim or the applicant against the respondent upon such terms arbitration. as may be just, or to appear at the arbitration and take such part therein as may be just, and generally may give such directions as he shall think proper. (4) If the third party obtains leave to resist the claim of the applicant Costs, against the respondent, the provisions of Rule 23 as to costs shall apply. (5) Nothing in this Rule shall empower the judge to decide (otherwise Judge how than by consent) any question as to the liability of the third jjarty to in- far em- demnify the respondent, or to make any award in favour of the respondont P°T^^'^*^ *° against the third party, or to make any further or other order than that the questions as third party shall not be entitled in any future proceedings between the to liability of respondent and such thii'd party to dispute the validity of the award as to *^""*^ party. w. z z 706 STATTrrOKY LIABIT-ITY OF EMPLOYERS. any matter which the judge has jurisdiction to decide in the arbitration as between the applicant and the respondent. (6) Provided, that with the consent of the respondent and the third party,— (a) If the arbitration results in an award in favour of the applicant, or is finally decided in favour of the applicant otherwise than bj'' an award, and the third party admits his liability to indemnify the respondent, the judge may, on api)licatiou made to him at or after the hearing of the arbitration or the final decision thereof, make such award as the nature of the case ma.y require in favour of the respondent against the third party ; but execution thereon shall not issue without leave of the jiidge until after satisfaction by the respondent of the award against him, or the amount recovered against him ; or (b) The judge may, on an application for directions, order any question as to the liability of the third ])arty to jnake the indenmity claimed to be settled, as between the respondent and the third party, by arbitration after the arbitration between the applicant and the respondent, and may on siich subsequent arbitration make such award as the nature of the case may require in favour of either party against the other. (c) In any siich case the judge may decide all questions of costs as between the respondent and the third party, and may order either of such parties to pay the costs of the other (including any costs payable by such party to any other party to the arbitration), or give such direc- tions as to such costs as the justice of the case may require. Third party procedure where employer is applicant. Claim to indemnity as between respondents. Procedure in arbitration. Third Party Procedure loliere Employer is Aj^jilicant. 25. The provisions of Rules 20 to 24 shall, with the necessary modifica- tions, apply to a case in which an employer who has filed a request for arbitration claims to be entitled to indemnity against any person not a party to the arbitration. Claim to Indemnify as hetween Respondents. 26. — ( 1 ) Where a respondent claims to be entitled to indenmity against any other respondent, a like notice shall be issued and the like jirocedure shall thereupon be adopted for the determination of questions between the respondents as might be issued and adopted against such other respondent if such last-mentioned respondent were a third party. (2) Nothing herein contained shall prejudice the rights of the applicant against any respondent. Procedure on Arbitration. 27. — (1) Subject to the special provisions of these Rules, the procedure in an arbitraticm shall be the same as the procedure in an action commenctsd in the County Court by plaint and summons in the ordinary way, and deter- mined by the judge without a jury ; and the statutory provisions and rules for the time being in force relating to such actions shall, with the necessary modifications, apply to such arbitration accordingly ; and in the application of such provisions and rules the applicant's request for arbitration shall be workmen's compensation rules. 707 deemed to be a summons with particulars annexed, the day fixed for pro- ceeding with the arbitration shall be deemed to be the return day, and the ajiplicant and respondents shall bo deemed to bo plaintiff and defendants respectively. (2) Provided, that the burden of proof of any facts which are not admitted Burden of shall be the same, whoever the party may be by whom the request for arbi- Pi'oof of facts tration is filed. not admitted. Aivard. 28. — (1) The award of the judge on any arbitration shall be prepared and Award. settled by the registrar, and shall bo signed by the judge, and shall be sealed Form 24. and filed, and sealed copies thereof shall be served on all persons affected thereby in accordance with Eule 7 of Order XXIII. ; and such award shall Ord. XXIII., be enforceable in the same manner as a judgment or order of the court. ^^^^ 7. (2) The judge shall have power at any time to correct any clerical mistake or error in such award arising from any accidental slip or omission. Proceedings before Arbitrator apjMirded by Judge. Appointment of Arbitrator by Judge. 29. With respect to the appointment of an arbitrator by the judge, the Appointment following provisions shall apply : — of arbitrator (a) If with respect to any court the Lord Chancellor, by general order, ^ ^^ °^' authorises the settlement by an arbitrator appointed by the judge of matters which, in default of such authorisation, would be settled by the judge, the judge may from time to time, on an application being made for the settlement of any matter, either settle the same himself, or he may, with the approval of the Lord Chancellor, appoint, by writing under his hand, and filed in the court, an arbitrator to settle such matter. (b) If with respect to any court the Lord Chancellor makes no such general order as aforesaid, then, on an application being made for the settle- ment of any matter, the judge may (if from the state of business in the court, or for any other reason, he is unable to settle such matter within a reasonable time) apply to the Lord Chancellor to authorise the settlement of such matter by an arbitrator appointed by the judge. (c) If the Lord Chancellor does not grant such authority, the judge shall proceed to settle the matter in accordance with the Act and these Eules. (d) If the Lord Chancellor grants such authority, the judge may, with the approval of the Lord Chancellor, appoint, by writing under his hand, and filed in the court, an arbitrator to settle such matter. (e) In case of the death or refusal or inability to act of an arbitrator appointed under this rule, the judge may, on the application of any party, appoint a new arbitrator in accordance with this rule. zz2 708 STATUTORY LIAHII.n Y OF EMPLOYERS. Fixing day and place for proceedings before arbitrator. Fixing flay for Arbitration. 30. Where any matter is to be settled by an arbitrator, the judge shall return the copy of the request for arbitration to the registrar, with the appointment of such arbitrator, to be transmitted to the arbitrator ; and the registrar shall transmit the copy of the request and a copy of the appoint- ment to the arbitrator, who shall, as soon as conveniently may be, appoint a day and hour for proceeding with the arbitration, in accordance with Rule 13, and the provisions of that rule as to the place where an arbitration shall be hold shall api)ly. Provided, that where the arbitration is to be held at the place where the court is held, the day appointed for the arbitration shall, if possible, be one on which the court or other suitable accommodation in the court-house will be available for the arbitration. Procedure before arbitrator. Procedure before Arbitrator. 31. — (1) On the day for jiroceoding with an arbitration being fixed the registrar shall proceed according to Rule 14, and thencc-torward the arbitra- tion shall proceed in the same manner as an arbitration before the judge; and these Rules shall apply and the officers of the court shall act accordinglj% with the substitution of the arbitrator for the judge. (2) Provided that— (a) In any case coming within the provisions of paragraph 5 (a) or paragraph 5 (b) (i) of Rule 18, or in any other case in which, after an arbitrator has been appointed, but before the day fixed for pro- ceeding with the arl)itration, the jiarties agree upon an award, the judge may, on application made to him in or out of court ou behalf of or with the cons(!nt of all parties, settle the matter himself ; and thereupon the functions of the arbitrator as to such matter shall cease, and the registrar shall forthwith inform him that the matter has been settled ; and (b) Any application for the enforcement of or for staying proceedings on an award, which would in the case of an award made by the judge be required to be made to the judge, shall, in the case of an award made by an arbitrator, be in like manner made to the judge. Submission of question of law by committee or arbitrator to judge. Act, Sched. 2, par. 4. Statement of case. Submission of Question of Law bij Committee or Arbitrator to Judge. 32. — (1) Where a committee or an arbitrator (whether agreed on by the l)arties or appointed by the judge) submits any question of law for the decision of the judge under paragraph 4 of the second schedule to the Act, such submission shall be in the form of a special case. (2) The case shall be intituled in the matter of the Act and of the arbitra- tion, and shall be divided into paragraphs numbered consecutively, and shall state conciselj^ such facts and documents as may be necessary to enable the jiidge to decide the questions of law raised thereby. Upon the argument of the case the judge and the parties shall be at liberty to refer to the whole contents of such documents, and the judge shall be at liberty to draw from the facts and documents stated in the case any inference, whether of fact or workmen's compensation rules. 709 of law, which might have beon drawn therefrom if proved at the hearing of an arbitration. (3) The case shall be signed by the chairman and secretary of the com- Fixinj^- day mittee or by the arbitrator, and sent to the registrar, who shall transmit the for hearing, same to the judge, and the judge shall as soon as conveniently may be Form 25. appoint a day and hour for hearing the case, and instruct the registrar to give notice thereof forthwith to the parties. The day shall be so fixed as to allow notice to be given ten days at least before the day fixed for the hearing, unless the jixdge shall, with the consent of all parties, fix an earlier day. (4) The registrar shall, on the application and at the cost of any party, Copies of furnish him with a copy of the case. case. (5) On the hearing of the case the judge may, after deciding the question Power of submitted to him, remit the case with a memorandum of his decision to the i^^g^ on committee or arbitrator, for them or him to proceed thereon in accordance ^^^^^ ° with the decision ; or if the decision of the j udge on the question submitted to him disposes of the whole matter, he may himself make an award in the arbitration in accordance with such decision. (6) The judge may remit the case to the committee or arbitrator for re- Re-statement statement or further statement. (7) The judge shall have the same power over the costs of a special case as Costs of he has over the costs of an arbitration, or he may direct that such costs shall *P®°i=^l <^^S6. be dealt with as costs attending the arbitration ; and the provisions of the Act and these Rules as to such costs shall apply accordingly. Appearance of Parties in Arbitration. 33.— (1) A party to any arbitration under the Act may appear— Appearance , s T of parties. (a) in person : ^ (b) By any solicitor who would be entitled to appear for such party in an action in the County Court : (c) By counsel : Or, by leave of the judge or arbitrator, a party may appear — (d) By a member of his family : (e) By a person in the permanent and exclusive employment of such party : (f) In the case of a company or corporation, by any director of the com- pany or corporation, or by the secretary or any other officer or any person in the permanent and exclusive employment of the company or corporation : (g) By any officer or member of any society or other body of persons of which such party is a member or with which he is connected ; or (h) Under special circumstances, by any other person. (2) No person other than a solicitor who appears or acts on behalf of any party in any arbitration under the Act shall be entitled to have or recover any fee or reward for so appearing or acting, other than such travelling expenses and (in the case of a workman or a member of his family) allowance for time (if any) as may be allowed by the judge or arbitrator : Provided that nothing in these rules contained shall affect the right of counsel to appear or act in any arbitration, or the right of any solicitor to recover costs in respect of his employment of counsel to appear or act as aforesaid. 710 STATUTOKY LIABILITY OF EMPLOYERS. Dutii iuts, and as between the respondents themselves, as may be just. (5) 'V^^lere the employer claims under proviso (iii) to paragraph (c) of sub-section (1) of secticm 8 of the Act to be entitled to contribution from any other employer, he may bring in such other employer as a third party in accordance with Rul(;s 19 to 23, 25 and 26 ; and the provisions of those rules shall with the necessary modifications apply to any such claim to contribu- tion in like nianuer as they apply to claims to indemnity. Application for appoint- ment. Form 34. Fixing of hearing by registrar. Apjioivtvient of Arhitrator hij Judye in pliiai of Arbitrator acjretd 0)i by the I'urties under Schedule 11., rarayruph 8. 40. - (1) In case of the death or refusal or inability to act of an arbitrator a"reed on by the parties, any party to the arbitration who desires to make an application to the judge to appoint a new arbitrator sliall apply in writing to the registrar to fix a time and place for the hearing of such api)lication. (2) The registrar shall fix the hearing of the application before the judge fur any court appointed to be held within fourteen days from the date of the workmen's compensation rules. '^15 application to the registrar, but so that ho shall not, except by consent, fix the heai'ing for a day less than seven days from the date of the application. {'3) If there is no available court, the registrar shall send notice of the Fixing of intended application to the judge, who shall as soon as conveniently may be hearing by fix a time and place for the hearing of the application. Such time shall not, " except by consent, be less than seven days from the date of the application to the registrar. (4) On the time and place for the hearing of the application being fixed. Summons to the registrar shall issue to the applicant a summons under the seal of the "t^er party, court according to the form in the Appendix, addressed to the other party to Form 3o. the arbitration, and requiring him to attend on the hearing of the appli- cation. (5) Such summons shall be served by the applicant on the other party in Service of accordance with Rule 15 of these Rules not less than four clear days before summons, the day fixed for the heariug, unless such party agrees to accept shorter service. (6) On the day fixed for the hearing the judge shall dispose of the appli- Hearing of cation on hearing the parties, or on hearing the applicant and on proof of apphcation. service of the summons on the other party, if such other party does not appear. (7) Before appointing any person to act as arbitrator, the judge shall Ascertain- ascertain that such person is willing to serve if . appointed. ^f^} '^ (8) The appointment may be made by indorsement on the summons, or by ^q ^ctr a separate order. Order. (9) The costs of the application shall be in the discretion of the judge, Costs, who may order the same to be paid by one party to the other, or to be dealt with as costs attending the arbitration. Such costs, if allowed, shall be taxed on such scale as the judge shall direct. Memorandum under Schedule II., Paragraph 9. 41. — (1) The memorandiim as to any matter decided by a committee or by Memo- an arbitrator or by agreement, which is by paragraph 9 of the second randum to be schedule to the Act required to be sent to the registrar, shall be intituled in j.go.jj^t°aj._ the matter of the Act, and shall be left at the office of the registrar, or sent ,^^ gched. 2 by post by registered letter addressed to the registrar at his office, as soon par. 9. as may be after the matter has been decided. Form 36. (2) Where the matter is decided after a medical referee has been appointed to report on any matter under paragraph 15 of the second schedule to the Act, a copy of the report of the referee shall be annexed to the memorandum and recorded therewith ; and if the referee attended any proceeding in the arbitration, it shall be so stated in the memorandum. 42. — (1) If the matter is decided by a committee or an arbitrator, the Authentica- memorandum shall be authenticated by the signatures of the chairman and tion ot memo- • T T • P i^i T -i^ J. 1 -J. randum 01 secretary of the committee, or by the signature of the arbitrator ; and it decision of shall be the duty of the committee or arlntrator. as soon as may be after the committee or decision, to draw up such memorandum and to sign the same or cause it to ai'Pitrator. be signed as aforesaid, and to leave or send the same as aforesaid, or to deliver the same to some party interested, to be by him so left or sent. 716 STATUTORY LIAHILITY OF EMPLOYERS. Authentica- tion of memoraucluin of airreemeiit. Copies. Notice to parties interested of memorandum having- been received. Form 37. of Recordin memoran- dum, if not di.sputed. Where memorHndiim disputed, or employer objects to its being- recorded. Act, Sched. 2, par. 9 (b). Form 38. Notice of dispute or objection. Form 39. Subsequent proceedings. (2) If the matter is decided by afj;reement, the inemorunduni sliuU be authenticated by the signatures of all parties to such agreement, or by the signatures or signature of some or one of them, or by the signatures or signature of the solicitors to the parties or some or one of them on their or his behalf. (3) There shall be left or sent with the momorandum a coj)}' thereof for eveiy party interested, other than tlie ]iavty (if any) by whom the memo- randum is left or sent. 43. On the receipt of the memorandum the registrar shall send one of the copies thereof to every party inter(\sted, with a notice according to the form in the Ajipendix, requesting such party to inform him within seven days from the date of the notice whether the memorandum is genuine, or whether he disputes it, and, if so, in what particulars, or objects to its being recorded, and, if so, on what grounds. 44. If all th(! parties interested admit the genuineness of the memoran- dum, or do not within such period of seven days dis{)ute it or object to its being recorded, the registrar shall, subject to proviso (d) to paragraph 9 of the second schedule to the Act, and to Rule 49, record it without further proof. 45. If any party interested disputes the genuineness of the memorandum, or if, where a workman seeks to record a memorandum of agreement between his employer and himself, the employer alleges that the workman has in fact returned to work and is earning the same wages as he did before the accident, and objects to the recording of the memorandum, such party or employer shall within seven days from the date of the notice mentioned in Rule 43 hie with the registrar a notice according to the form in the Appendix that he disputes the genuineness of the memorandum or that he objects to its being recorded, and shall with such notice file a copy thereof for each of the other parties interested. 46. On the receipt of any such notice as in the last preceding rule mention(xl, the registrar shall send a copy thereof to each of the otlier parties interested, together with a notice accoi-ding to the form in the Apjiendix, informing such party that the memorandum will not be i-ecorded except with the consent in writing of the i:>arty (jr employer disputing the same or objecting to the same being recorded, or by order of the judge. 47.^ — (1) If the consent mentioned in the last preceding rule is obtained, the registrar shall, subject to proviso (d) to paragraph 9 of the second schedule to the Act, and to Rule 49, record the memorandum without further proof. (2) If such consent cannot be obtained, any party interested may apply to the judge to order the memorandum to be recorded. Proceed in gs on applica- tion for record of memorandum or rectifica- tion of register. Form 40. Proceeiiitiys for litcord of McinordinhiiN nr Jicdijicalion nf Rigider. 48. The following provisions sliall ajtjjly to an application for an order that a memorandum be recorded, or an application to the judge to rectify the i-egister pursuant to paragraph 9 of the second schedule to the Act. (a) The application shall be made in court on notice in writing, stating the relief or order which the applicant claims. workmen's compensation rules. 717 (b) The notice shall be filed with the registrar, and copies thereof shall bo served — (i) in the case of an application for an order that a memorandum be recorded, on the party disputing the memorandum or objecting to its being recorded, and on all other parties interested ; (ii) in the case of an application to rectify the register, on every party who would be affected by such rectification, subject to the provisions of these Rules as to the parties to an arbitration ; or on the solicitor of such party, ten clear days at least before the hearing of the application, unless the judge or registrar gives leave for shorter notice. (c) On the hearing of the application witnesses may be orally examined in the same manner as on the hearing of an action. (d) On the hearing of the application the judge may make such order or give such directions as he may think just, regard being had, in the case of an application for an order that a memorandum of an agreement be recorded, to proviso (d) to paragraph 9 of the second schedule to the Act. (e) The provisions of the Act and these Rules as to the costs of an arbitra- tion before the judge shall apply to any such application. Reference of Agreement f resented for Reyistration to the Judge. Schedule II., Paragraph 9, Proviso (d). 49. — (1) Where a memorandum of an agreement presented for registration Proceedings relates to any matter referred to in proviso (d) to paragraph 9 of the second ^^ ^^'^ . schedule to the Act, the registrar may, before recording the same, make such presented for inquiries and obtain such information as he may think necessary in order to registration satisfy himself whether the memorandum may properly be recorded, regard J.e,iig^/ar to ^ being had to the said proviso. judge. (2) Where it appears to the registrar that the memorandum ought not to ^°t' Sched. 2, be recorded for any reason mentioned in the said proviso, he shall make a L-o^jgo /^\ report to the judge in writing, stating the information he has obtained, and the grounds on which it appears to him that the memorandum ought not to be recorded. (3) If on consideration of the registrar's report it appears to the judge that the memorandum may properly be recorded, he may so direct, and it shall be recorded accordingly. (4) If on consideration of the registrar's report it appears to the judge that the memorandum should not be recorded without fiu-ther inquiry, the registrar shall send notice to the parties t(j the agreement according to the form, in the Appendix, informing them that he has referred the matter to the Forna 41. judge, and requiring them to attend on a day to be named in the notice, when the matter will be inquired into by the judge. (5) The notices shall be sent to the parties or their solicitors ten clear days at least before the day fixed for the inquiry, unless the judge directs shorter notice to be given. (6) At the inquiry witnesses may be orally examined in the same manner as on the hearing of an action. '18 STATUTORY LI ABILITY OF EMPLOYP^RS. (7) At the inquiry tho jiulgo may mako such ordoi" or p:ive such diroctions as he may think just. (8) The provisions of the Act and those Rules as to tho costs of an arbitra- tion before the judge shall apply to any such inquiry. Application for removal of agreement from register, Act, Sched. 2, par. 9, proviso (e). Form 42. Notice where inquiry directed by judge. Form 43. Proceedings for Removal of Record of Memorandum of Agreement from Register under ScJu'dule II., Paragraph 9, Proviso (e). 50. — (1) An application to tlu' judge by or on behalf of any party for the removal from tho register of the record of a memorandum of an agreement imder proviso (e) to paragraph 9 of the second schedule to the Act shall be made in coiu't on notice in writing : and the provisions of Rule 48 shall apply to the proceedings on such application. (2) If it appears to tho judge on a report by tho registrar without such ap]dication as in the last preceding 2)aragraph mentioned that the record of a memorandum of an agreement should be I'emoved from the register pursuant to the said proviso, the registrar shall send notice to the parties to the agree- ment accoi-ding to the form in the Appendix, recjuiring them to attend on a day to be named in the notice, when the matter will be inquired into by the judge. (3) Such notice shall be sent and th(> iuquirv lield in accordance with tlio provisions of the last preceding rule, and tho provisions of that rule shall apply to any such inquiry. Certificate under Act, sect. 1, sub- sect. 4. Form 44.' Certifcate under Section 1, Suh-section 4. 51. — (1) Where an action is brought in the County Court to recover damages iudei)endently of the Act for injury caused by any accident, and the court proceeds under sub-section 4 of section 1 of the Act, the certificate given by the court shall be according to the form in the Appendix. (2) The registrar shall, on receiving a certificate given by any other court under the said sub-section, record the same in like manner as if such certifi- cate were an award made b}^ the judge. Application for assessor. Act, Sched. 2, par. 5. Form 45. Assessor to ]je sumtiione 1 if judge approves. Notice where judge does not approve. Form 46. Hiiinmoning Medical Referee as Assessor under Schedule If., I'antgra/ih 5. 52. — (1) Any ])arty to an arbitration may eight clear days at least before the day fixed for proceeding with the arbitration file with the registrar an application according to the form in the Apjiendix, re([uesting the judge to summon a medical referee to sit with him as an assessor under paragraph 5 of the second schedule to the Act. (2) On the receipt of an application for an assessor the registrar shall forward a copy of the same to the judge, who if h(^ thinks fit shall return the same with his approval, and thereupon the registrar .shall forthwith summon an assessor. (.'i) If the judge does not think fit tliat an assessor shall be summoned, notice thereof shall be given by the registrar to the apj)licant, according to tho foTOi in the Appendix, workmen's compensation rules. 719 (4) If the juflge thinks fit, either on the application of any party to an Summoning arbitration or on his own motion, to snmmon a medical referee to sit with ?* 'i^^^essor it 1 ud ^G him as an assessor, the registrar shall forthwith summon one of the medical approves or referees appointed by the Secretary of State for the area comprising the so directs. district of the court in which the arbitration is pending, by sending to such medical referee by post a summons according to the form in the Appendix. Form 47. (5) If at the time and place appointed for the arbitration the medical Where referee summoned does not attend, the judge may either proceed with the assessor iaus arbitration without the assistance of an assessor, or he may adjourn the hearing. Apjwiiit:neiit of Mi'dical Rtftret to Report idtdtr Sr/icdtde II., Paniyniij/i 15. 53.- (1) Subject to and in accordance with regulations made by the Appointment Secretary of State and the Treasury under paragraph 15 of the second oi^^aical * roioi'pGS to schedule to the Act, the judge may submit to a medical referee for report report mider any matter which seems material to any question arising in an arbitration. Act, Sched. 2, (2) When any matter is submitted as aforesaid, the judge may, subject to P^^" '^' and in accordance with such regulations, order the injured workman to submit himself for examination by the medical referee ; and it shall be the duty of the workman, on being served with such order, to submit himself for examination accordingly. Application for Reference to Medical Referee under Schedule I., Paragraph 15. 54. — (1) With respect to applications to the registrar pursuant to para- Application graph 15 of the first schedule to the Act to refer any matter to a medical ^'^^ reference referee, the following provisions shall have effect. referee under (2) An ajiplication to the registrar to refer any matter to a medical referee "^'^*' Sched. 1, shall be made in writing, and shall contain a statement of the tacts which render the aj^plication necessary, according to the form in the Appendix, Form 48. and shall be accompanied by a copy of the report of every medical prac- titioner who has examined the workman either on behalf of the employer or on the selection of the workman. The application shall be signed by or (m behalf of both parties ; and the applicant shall file copies of the aiDplication and reports for the use of the medical referee. (3) On the hearing of the application the registrar shall refer the matter to one of the medical referees appointed for the area comprising the district of the court : and shall forward to such medical referee by registered post one of the filed copies of the application and reports, with an order of refer- ence according to the form in the Appendix. Fonii 49. (4) The registrar shall also make an order directing the workman to Form 50. submit himself for examination by the medical referee, subject to and in accordance with any regulations made by the Secretary of State. (5) Before making such order the registrar shall inquire whether the workman is in a fit condition to travel for the purpose of examination, and if satisfied that he is in a fit condition shall by the order dii-ect him to attend at such time and place as the referee may fix, and if satisfied that he is not in a fit condition to travel shall so state in the order of reference : and 720 STATUTORY LIABILITY OF EMPLOYERS. it shall be the duty of the workman, on being served with the order, to submit himself for examination accordingly. (6) The registrar shall deliver or send by registered post to each party a copy of the order of reference, and shall send to the workman a copy of the order directing him to submit himself for examination. (7) The medical referee shall forward his certificate in the matter to the registrar by registered post. Form 51. (8) On the receipt of the certificate of the medical referee the registrar shall inform the parties by post that it has been received, and shall permit any party to inspect the same during office hovirs, and shall on the appli- cation and at the cost of either party fui-nish him with a copy of the certificate, or allow him to take a copy thereof. (9) The fee payable by the applicant shall be calculated at the rate of one shilling in the pound on twenty-six times the amount of the weekly pay- ments claimed by or payable to the workman, so that the total fee shall not exceed one pound. (10) The costs of any application to the registrar, including the fee paid under the last preceding paragraph, may be allowed as costs in any subse- quent arbitration for the settlement of the weekly payment to be made to the workman, or, where the application is made after the weekly payment has been settled, as costs in any subsequent arbitration as to the review of such weekly payment. Application to stay proceedings or suspend weekly pay- ments on refusal of workman to submit to examination under Act, Sched. 1, par. 4, par. 14, or par. 15. Suspension of Proceedings or Weekly Payments on Refusal to Submit to Exami- nation under Schedule I., Paragraph 4, Paragraph 14, or Paragraph 15. 55. "(1) In any case in which a workman has given notice of an accident, or is receiving weekly payments under the Act, and the employer alleges that the workman refuses to submit himself to medical examination in accordance with jjaragraph 4, paragraph 14, or paragraph 15 of the first schedule to the Act, or in any way obstructs such examination, the employer may apply for a suspension of the right to compensation and to take or prosecute any proceedings under the Act in relation to compensation, or of the right to the weekly payments, until such examination has taken place, in accordance with this rule. (2) Where proceedings are pending before a committee or an arbitrator agreed on by the parties, the application shall be made to such committee or arbitrator. (3) Where the workman has given notice of an accident, but no pro- ceedings are pending, or proceedings are pending before the judge or an arbitrator ajipointed by him, the a^jplication shall be made to the judge. (4) Whert; the workman is receiving weekly payments under an award, memorandum, or certificate, then (a) If proceedings for the review of the weekly payment are pending before a committee or an arbitrator agreed on by the parties, the application shall be made to such committee or arbitrator ; (b) If no proceedings for review are pending, or if proceedings for review are pending before the judge or an arbitrator appointed by him, the application shall be made to the judge. workmen's compensation rules. 721 (5) Where the application is to be made to the judge, it may be made in Form 52. or out of court in accordance with Rule 4h 3 of this rule, the employer shall lodge luith the registrar a pnecipe in dupjlicate according to the form 53 in the Appendix, and where money is to be paid into Form 53. court under parngraph 4, the employer shall lodge ivith the registrar a prcecipe in duplicate according to the form 53a in the Appendix. The employer shall Form 53a. annex to one copy of the prcecipe a form of receipt, and the registrar, on receipt of the sum paid in, shall sign the receipt and return the same to the employer ; and the employer shctll forthwith give notice to the persons interested in the sum paid in of such payment having been made. (6) On the payment of money into court, the registrar shall forthwith send by post to each of the persons appearing by the award, inemorandum, certificate, or prcBcipe to be interested in such money a notice of the said payment according to the form o3b in the Appendix. Provided that *in the case of infant depen- Form 53b. dants residing with their mother or guardian it shall be sufficient to send such notice to the mother or guardian only, (7) // all questions as to who are dependants and the amount payable to each dependant have been settled by agreement or arbitration before payment into court, the sum paid into court shall be allotted between the dependants in accordance luith the agreennrnt or award, and the amount allotted to each depen- dant shall be invested, applied, or otherwise dealt with by the court for the benefit of the person entitled thereto in accordance with paragraph 5 of the first schedule to the Act. , (8) If such questions have not been settled before payment into court, then — («) If all the persons interested in the sum paid into court agree to leave the (l) This rule is substituted for the original Rule 56 by the "Workmen's Comnensa- tion Rules, 1908. ^ M. 3 A '7^'^ STATUTORY LIABILITY OF EMPLOYERS. apjtlication thereof to the court, or if no question arises as to who is a dependant or as to the amount pai/ahJe to any dependant, or otherwise as to the application of the sum paid into court, hut any of the persons interested in the said sum are absent or under disahility, the amount paid into court shall, on application by or on behalf of the persons interested therein, be invested, applied, or otherioise dealt with hy the court for the benefit of the persons interested therein in accordance with parayraph 5 of the first schedule to the Act. {b) If any question arises as to toho is a dependant or as tu the amount payable to any dependant, or otherwise as to the cqjplication of the sum paid into court, such question shall be settled by the court by arbitration in accord- ance ivith these Rules; and the amount allotted to each dependant shall be invested, applied, or otherwise dealt ivith by the court for the benefit of the person entitled thereto in accordance with paragraph o of the first schedule to the Act. (9) Where any question is settled hy the court hy arhitration in accordance ivith the last precediny paragraph, an application for the investment or applica- tion of any sum allotted to any person on such arbitration may be made at or immediately after the hearing of the arbitration. (10) — (a) Where application is not so made, or in any other ctse coming ivithin paragraph 5 of the first schedule to the Act, an ap>plication for the invest- ment or application of any sum p)aid into court, or of the amount allotted to any Form .53c. person, shall he made in court on notice in writing, stating on ivhose behalf the application is made, and the order which the applicant asks, according to the form in the Appendix. {b) The notice shall be filed with the registrar, and where the application is made hy or on behalf of some only of the persons interested, notice thereof shall be served on all other parties interested, or on their solicitors, five clear days at least before the hearing of the application, unless the judge or registrar gives leave for shorter notice. (c) On the hearing of the application witnesses may be orally examined in the same manner as on the hearing of an action. {d) On the hearing of the applicaUon the judge may. after making or directing such inquiries as to the dependants and on such evidence of title and identity as he may think necessary, make such order under paragraph 5 of the first schedule to the Act and this rule as he m,ay think fit. (e) The provisions of the Act and these Rules as to the costs of an arbitration shall apply to any such application. (11) An employer paying mcniey into court under this rule shall not he liable to any costs incurred by any person interested in such money after the receipt of notice of pay^nent into court; hut the judge may, in his discretion, order such employer to jjay the costs of any such person properly incurred before the receipt of such notice. (12) Every order for the investment or application of money paid into court shall reserve liberty to the parties interested to apply to the court as they may be advised. (13) Where any sum allotted to any person under paragraph 5 of the first schedule to the Act or this rule is ordered to be paid out to or applied for the benefit of the person entitled thereto, by iveekly or other periodical payments, such payments may be made to the person entitled to receive the same either at the ofiice workmen's compensation rules. 723 of the registrar, or, on the ivritten request of such person, by crossed cheque or Post Office order addressed to such person and forwarded by rec/istered post letter, pay- merit by post being in all cases at the cost and risk of the person requesting the same. Payment into Court and Application of Weekly Payments payable to Person under Legal Disability. Schedule T., Paragraph 7. 57. — (1) An application under paragraph 7 of the first schedule to the Application Act for an order that a weekly payment payable under the Act to a person . P^y^ent under any legal disability shall during the disability be paid into court may ^f v\reekly be made either by the person liable to make such payment, or by or on payment to behalf of the person entitled to such payment. ' PfJ^"'^ ^"^'^^'^ (2) If the weekly i:)ayment is awarded hj the judge, the application may disability. be made at or immediately after the hearing of the arbitration. Act, Sched. 1, (3) In any other case the application may be made in or out of court on Pf^" * notice in wi'iting, which shall be served on the other party or his solicitor five clear days at least before the hearing of the application, unless the judge or registrar gives leave for shorter notice ; and the provisions of Rule 48 shall apply to any such application. (4) Where any weekly payment is ordered to be paid into court, the sums paid in shall be paid out by the registrar to or otherwise applied for the benefit of the person entitled thereto in such manner as the judge shall direct : and the provisions of the last preceding rule as to the payment out or application of sums by weekly or other periodical payments shall apply. Apjili cation for Variation of Order under Schedule I., Paragraph 9. 58. — (1) An application for the variation of an order of the court under Application paragi-aph 9 of the first schedule to the Act may be made by any person ^°^ variation interested. ^ .... . -A-c*. Sched. 1, (2) The application shall be made in court on notice in writing, stating the par. 9. circiimstances under which the api^lication is made, and the relief or order Form 55. which the applicant claims. (3) The notice shall be filed with the registrar, and notice thereof shall be served on all persons interested in accordance with Rule 48 ; and the provi- sions of that rule and of Eule 56 shall apply to the proceedings on such application. Investment and Applicatioyi of Lump) Sum paid in Redemption of Weekly Payment. Schedule 1., Paragraph 17. 59. "Where pursuant to paragraph 17 of the first schedule to the Act a Investment lump sum payable for the redemption of any weekly payment is ordered by ^. appnca- ■ ^ ■, 1 til -Til- XT TIP tion 01 sums a committee or an arbitrator, or by the .ludge, to be invested or applied tor p^j^j ^ the benefit of the person entitled thereto, such sum shall be paid into coui't ; redemption and the provisions of paragraph 5 of the first schedule to the Act and of weekly Rule 56 shall apply to the investment and application of such lump sum. ji^^.^ Sched. 1 par. 17. Proceedings where Workman receiving Weekly Payment intends to cease to reside in United Kingdom. Schedule 1., Paragraph 18. 60. — (1) Where a workman receiving a weekly payment intends to cease Where to reside in the United Kingdom, the following provisions shall have effect workman under paragraph 18 of the first schedule to the Act. ^ 3 a2 724 STATUTORY LTAmLITY OF EMPLOYEKS. weekly pay- ment intends to cease to reside in United Kingdom. Act, Sched. 1 , par. 18. Form 56a. Form 5 7 a, Form 50. Form 51. (2) The workman may apply to the registrar to refer to a medical referee the question whether the incapacity of the workman resulting fi-om the injury is likely to be of a permanent nature. (3) (m). The applicntion shall he marie on notice in inritinr/, according to the form ill the Appendix, ivhich shall he filed with the registrar, and shall he accompariied bi/ a import of a medical practitioner selected hy the vorkman, setting out the nature of the incapaciti/ alleged to he the result of the injiiry ; and a copy of the application and of the report shall he served on the employer or his solicitor in accordance rvith Rule 48; and the applicant shall file a copy of the application and of the report for the use of the medical referee. (4) The employer may, on he.ing served loith notice of the application, require the workman to submit himself for examination hy a medical practitioner pro- vided and paid hy the employer, in accordance with paragraph 14 of the first schedule to the Act ; and if the employer requires the workman to submit himself for such examination he shall before or at the hearing of the application furnish the workman with a copy of the report of that ■practitioner as to the workman'' s condition, and file a copy of the report for the use of the medical referee. (4a) The luorkman and the employer respectively may before or at the hearing of the application submit to the registrar such statements in ivriting as they may think fit, ivith copies of such statements for the use of the medical referee. (5) On the hearing of the application the registrar, on being satisfied that the applicant has a bona fide intention of ceasing to reside in the United Kingdom, shall make an order referring the question to a medical referee : and if he is not so satisfied, he may refuse to make an order, hut in that case he shall, if so requested hy the applicant, refer the matter to the judge, ivho may make such order or give such directions as he may think fit. (6) If the registrar or the judge makes an order referring the question to a medical referee, he shall also make an order directing vwrkman to submit himself for examination by the medical referee, subject to and. in accordance with any regulations made hy the Secretary of State ; and the provisions of para- graphs 3 to 6 of Rule 54 shall ivith the necessary modifications apply. (6a) The registrar shall with the order of reference forward to the medical referee copies of any statements submitted to him by either party. (7) The medical referee shall forivard his certificate in the matter to the regis- trar hy registered post, specifying therein the nature of the incapacity of the workman resulting from the injury, and whether such incapacity is likely to be of a permanent nature; and the registrar shall thereupon proceed in accordance with paragraph 8 of Rule 54. (8) Where the medical referee certifies that the incapacity resulting from the injury is likely to be of a permanent nature, the registrar shall on application furnish the workman (a) with a copy of the certificate of the medical referee, sealed with the seal of the court and certified by the registrar in his own handwriting to be a true copy ; and (b) with a copy of the award, memorandum, or certificate under which the weekly payment is payable, sealed with the seal of the court and certified by the registrar in his own handwriting to be a true copy ; and (in) Paragraphs (3) to (7) of this rule were aimnllcd and replaced by those printed here by virtue of the Workmen's Compensation Rules, 1908. workmen's compensation rulks. 725 (c) with a certificate of identity accordinj^ to the form in the Appendix ; Form o8a. and (d) with a notice according to the form in the Appendix, annexing Forms 59, 6 , thereto forms of certificate and declaration according to the forms in 61. the Appendix ; and shall procure from the workman a specimen of his signature, and file the same for reference. (9) A workman who desires to have the weekly payments payable to him remitted to him while residing out of the United Kingdom shall at intervals of three months from the date to which such payments were last made submit himself to examination hj a medical practitioner in the place where he is residing, and shall produce to him the copy of the certificite of the medical referee and the certificate of identity furnished under the last preceding paragraph, and shall obtain from him a certificate in the form in Form 60. the Appendix that the incapacity of the workman resulting from the injiuy continues ; and such certificate shall be verified by declaration by the medical practitioner, in the presence of the workman, before a person having authority to administer an oath. (10) The workman shall also make a declaration of identity according to the form in the Appendix before a person having authority to administer an Form 61. oath, producing to such person the copy and certificate above mentioned, and the certificate of the medical practitioner by whom he has been examined. (11) The workman shall forward the certificate and declaration in the two last preceding paragraphs mentioned to the registrar, with a request, according to the form in the Appendix, for the transmission to him of the Form 62. amount of the weekly payments due to him, specifying the place where and the manner in which the amount is to be remitted, which request shall be signed by the workman in his own handwi'iting. (12) On the receipt of the certificate, declaration, and request the registrar shall examine the same, and may if not satisfied that the same are in order return the same for correction. (l;3) If the registrar is satisfied that the certificate, declaration, and request are in order, or when they are returned to him in order, he shall send to the employer a notice according to the form in the Appendix, Form 63. requesting him to forward the amount due ; and the employer shall there- upon forward the amount to the registrar, who shall remit the same, less any fees payable to the registrar and the costs of transmission, to the work- man at the address and in the manner requested by him, such remittance being in all cases at the cost and risk of the workman. Costs. 61. — (1) Any costs of and incident to an arbitration and proceedings Costs, connected therewith directed by a committee or by an arbitrator (whether ■^'^^■' Sched. 2, agreed on by the parties or appointed by the judge), or by the judge, to be ^^" paid by one party to another shall, in default of agreement between the parties as to the amount of such costs, be taxed according to such one of the scales of costs applicable to actions in the County Court as the committee, arbitrator, or judge shall direct ; and in default of such direction shall be taxed according to the scale which would be applicable if the proceeding 72H STATUTORY LIABILITY OF EMPLOYERS. had been an action in the County Court : and the statutory provisions and rules for the time being in force as to the allowance and taxation of costs in such actions, and as to objections and review of taxation by the registrar, shall apply accordingly. Proceedings in an arbitration shall be within Or 1. r LIII., Order LIII., Kulos 7 and 8, and the word "judge" in those rules shall Kules I, b. include a committee and an ai'bitrator. (2) Where the subject matter of an arbitration is not a capital sum, the committee, arbitrator, or judge shall determine what, for the purpose of the allowance and taxation of costs, shall be considered to be the amount of the subject matter of the arbitration ; and in default of such determination the amount shall be fixed by the registrar by whom the costs are to be taxed, subject to review bj' the judge. (3) The committee, arbitrator, or judge, in dealing with the question of costs, may take into consideration any offer of compensation proved to have been made on behalf of the employer. (4) Where any workman is examined by a medical referee on a reference under paragraph 15 of the first schedule to the Act, and the certificate of the referee is used in any subsequent arbitration, anj' reasonable travelling and other expenses incurred by the workman in obtaining such certificate (if not otherwise provided for) may, by order of the committee, arbitrator, or judge, be allowed as costs in the arbitration. (5) Where a workman is ordered to submit himself for examination by a medical referee appointed to report under paragraph 15 of the second schedule to the Act, any reasonable expenses incurred by such workman in travelling to attend on such referee for examination may, by order of the committee, arbitrator, or judge, be allowed as costs in the arbitration. Taxation of 62. Where any costs are awarded by a committee or an arbitrator agreed costs awarded on by the parties, it shall be the duty of the registrar of the court in which a ^*^V4.!,<. memorandum of the decision of the comuiittee or arbitrator is recorded or arbitrator agreed on by pursuant to paragraph 9 of the second schedule to the Act, on application parties. made to him, to tax such costs, and to enter in the register the amount of such costs allowed on taxation ; and such entry shall be deemed to be part of such memorandum, and shall bo enforceable accoixlingly. Be view of Taxation by Judge. Review of 63. — (1) An application to the judge to review any taxation of costs shall taxatiou. Y)Q made on notice in writing, which shall be served on the opposite party two clear days at least before the hearing of the api:)licatiou, unless the judge or registrar gives leave for shoi'ter notice. (2) Such application shall be heard and determined upon the evidence which has been brought in before the registrar, and no further evidence shall be received on the hearing thereof unless the judge otherwise directs. (3) The costs of and incident to the application shall be in the discretion of the judge. (4) The result of such review shall be entered in the register. As to 64. Where any party to whom costs are awarded acts by a solicitor, such authority of solicitor shall have the same authority to take out of court or receive any receive costs sum paid into court or payable in respect of such costs by the party against payable by whom such costs are awarded as he would have if such costs were awarded adverse party, i^ ^n action. workmen's compensation rules. 727 Costs of Solicitor or Agent under Schedule IF., Paragraph 14. 65. — (1) The following provisions shall apply to an application under Application paragraph 14 of the second schedule to the Act for the determination of the aetermiue „ !•• costs payable amount of costs to be paid to the soncitor or agent of a person claiming com- to solicitor pensation under the Act. or agent. (2) Where the sum awarded as compensation has been awarded hj a com- ^ ' ,? ^ ' "' mittee or an arbitrator agreed on by the parties, the application shall be made to such committee or arbitrator. (3) AVhere the sum awarded as compensation has been awarded by the judge or by an arbitrator appointed by him, the application may be made — (a) to the judge or arbitrator at or immediately after the hearing of the arbitration : or (b) at a subsequent date, but in that case it shall be made only to the judge. (4) Where a sum has been agreed on as compensation, the application shall be made to the judge. (5) An application made to the judge, other than an application under Form 64. paragraph 3 (a) of this rule, shall be made in court on notice in writing in accordance with Rule 48. (6) Such notice shall be served on the person for whom the solicitor or agent acted in accordance with the said rule, and the j^rovisions of the said rule shall apply to the proceedings on such application. (7) On the hearing of any application under this rule, the committee, arbitrator, or judge may award costs to the solicitor or agent, and may make an order declaring such solicitor or agent to be entitled to recover such costs from the person for whom he acted, or to be entitled to a lien for such costs on any sum awarded as compensation to such person, or to be entitled to deduct such costs from any such sum, or may make such order or give such directions as may be just. (8) Any costs awarded to a solicitor or agent on any such application shall, in default of agreement between the parties as to the amount of such costs, be taxed according to such one of the scales of costs applicable to actions in the County Court as the committee, arbitrator, or judge shall direct; and in default of such direction such costs shall be taxed according to the scale which would be applicable if the proceeding had been an action in the County Court ; and the statutory provisions and rules for the time being in force as to the allowance and taxation of costs in such actions, and as to objections and review of taxation by the registrar, shall apply accordingly ; and any taxation shall bo subject to review by the judge according to Rule 63. (9) Where the subject matter of the arbitration is not a capital sum, the committee, arbitrator, or judge shall determine what, for the purpose of the allowance and taxation of such costs, shall be considered to be the amount of the subj ect matter of the arbitration ; and in default of such determination the amount shall be fixed by the registrar by whom the costs are to be taxed, subject to review by the judge. 66. Where an order is made by a committee, arbitrator, or judge awarding Provisions as costs to a solicitor or agent, and declaring such solicitor or agent to be *" order entitled to recover such costs from the person for whom he acted, or to be i-'^'' ^&"^ entitled to a lieu for such costs on any sum awarded or agreed as compeusa- 728 STATUTORY LIABILITY OF EMPLOYERS. tion, or to be entitled to deduct such costs from any such sum, the following provisions shall apply : — (a) The registrar shall, on application made to him, tax such costs. (b) A copy of the order, and, when the amount to which such solicitor or agent is entitled has been ascertained by taxation, a memorandum of such amount, shall, at the request and cost of the solicitor or agent, be issued by the registrar for service on the party liable to pay the sum awarded or agreed as compensation ; and service thereof may be effected on such party in accordance with Eule 15. (c) A memorandum of such order, and when such amount has been ascer- tained a memorandum of such amount, shall be recorded in the register in which the memorandum or award under which the sum awarded as compensation is payable is recorded, and such last men- tioned memorandum or awaid shall have effect subject to such order and memorandum. (d) The party liable to pay such comjiensation shall on demand pay to the solicitor or agent the amount to which he is entitled, but so that such party shall not be liable to pay any amount in excess of that which he is liable to pay for compensation, or to pay such amount by any other instalments than those bj' which he is liable to pay such compensation. (e) If the party liable to pay such comj^ensation fails on demand to pay any amount which he is liable to pay to such solicitor or agent, the judge may, on application made to him on notice to such party in accordance with Eule 48, and on proof of the order having been served on and demand for payment made to such party, order such party to pay such sum ; and in default of payment the judge may order execution to issue to levy such amount. (f) Payment made by or execution levied on the party liable to pay such com]iensation shall be a valid discharge to him, as against the party entitled to such compensation, to the amount paid or levied. (g) Where the sum awarded as compensation has been paid into court, the amount to which the solicitor or agent is entitled shall be paid to him out of such sum. Execution. Form 65. Older XXV. Rule 11. Proceedings under Debtors Act, 1869. 32 & 33 Vict. Execution. 67. — (1) When a party liable to pay compensation or costs under any award, memorandum, or certificate has made default in payment of the amount awarded, or where payment is to be made by instalments, of any instalment, execution may issue against his goods without leave for the amount in payment of which he has made default. (2) Where such sum is not payable into court, the party apjdying for execution shall satisfy the registrar, by affidavit or otherwise, as to the amount in payment of which default has been made. (3) Where the parties liable to pay compensation or costs under any award, memorandum, or certificate are a firm, the provisions of Order XXV., Eule 11, shall, with the necessary modifications, a})ply to execution under this rule. Proceed 171 c/s itnder Debtors Act, 1869, Sectian 5. 68. — (1) Where proceedings by way of judgment summons under section 5 of the Debtors Act, 1869, are taken against a party liable to pay compen- sation or costs under any award, memorandum, or certificate, who has made default in payment of the amount awarded, or, where payment is to be made c. 62, 8, 5. ^y instalments, of any instalment, the County Cui.it Eules for the time workmen's compensation rules. 729 being in force as to the committal of judgment debtors shall, with any- necessary modifications, apply to such proceedings ; Provided, that the court shall not alter the terms or mode of payment of any sum to become payable in future under any award, memorandum, or certificate, otherwise than by consent, or under paragraph IG of the first schedule to the Act. (2) Where the amount in payment of which default has been made is not payable into court, the party applying for a j udgment summons shall satisfy the court, by affidavit or otherwise, as to the amount in payment of which default has been made. (3) A judgment summons issued under this rule shall be according to the Form G6. form in the Ajipendix. (4) Where the parties liable to pay compensation or costs are a finn, the provisions of the County Court Eules as to judgment summonses on a judg- ment or order against a firm shall, with the necessary modifications, ajiply to proceedings by way of judgment summons under this rule. Other Proceedings for Enforcement of Aivard, Memorandum, or Certificate. 69. The County Court Eules for the time being in force as to proceedings Other pro- for the enforcement of or the recovery of money due under judgments or ceedings for orders of the Countv Court otherwise than by execution or committal shall, ? o^'^ardT^&c with the necessary modifications, apply to proceedings for the enforcement of or the recovery of money due under any award, memorandum, or certificate. Betting aside Aivard or Order improperly obtained. 70. — (1) Notwithstanding anything in these Eules contained, the statu- Rules as to tory provisions and rules relating to new trials in actions in the County new trials Com-t shall not apply to arbitrations under the Act. "°* *^ ^PP^^' (2) Where the judge is satisfied — When award (a) that any award, or any order as to the application of any amount ?^" ^^^^^ ™^y awarded or agreed upon as compensation, made by the judge or by an ® '''^ .^j^ ^ arbitrator appointed by him, has been obtained by fraud or other improper means ; or (b) that any person has been included in any award or order as a depen- dant who is not in fact a dependant as defined hj the Act ; or (c) that any person who is in fact a dependant as defined by the Act has been omitted from any award or order, the judge may set aside or vary the award or order, and may make such order (including an order as to any sum already paid under the award or order) as under the circumstances he may think just. (3) An application to set aside or vary an award or order under this rule shall be made in court on notice in writing, and the provisions of Eule 48 shall apply to the proceedings on such application. (4) An application to set aside or vary an award or order under this rule shall not be made after the expiration of six months from the date of the award or order, except by leave of the judge; and such leave shall not be granted imless the judge is satisfied that the failure to make the application within such period was occasioned by mistake, absence from the United Kingdom, or other reasonable cause. 730 STATUTORY LIABILITY OF EMPLOYERS. Appeals. Act, Sched. par. 1. Deposit of order of Court of Appeal with Appeals. 71. Appeals under paragraph 4 of the second schedule to the Act shall be had in accordance with the provisions of the llules of the Supremo Court relating thereto («). 72. — (1) "When the Court of Appeal has given judgment on any ajjpeal, any part}' may deposit the order of the Court of Api)eal, or an office cojjy thereof, with the registrar : and the registrar shall file such order or copy, re<,'-istrar, and and shall transmit a copy thereof to the judge : and such ordf^r shall have procedure ^j^^ same effect as if it had been a decision of the iudge. thereon. / \ t • . (2) If such order has the effect of an award, decision, or order in the matter in favour of any party, such order shall be served and recorded, and may be proceeded on, in the same manner as if it had been an award, decision, or order of the judge. (3) If such order be to the effect that an award be made or a decision given or order made in favour of any party, the judge shall make such award or give such decision or make such order accordingly. (4) If such order directs or involves a re-hearing or further hearing of an arbitration or special case or other matter, the judge shall as soon as con- veniently maj' be appoint a day and hour fcjr such re-hearing or further hearing, and shall instruct the registiar to give notice thereof forthwith to the parties. (5) Generally the judge shall make such award or give such decision or make such order and give such directions and take or direct to be taken such proceedings in the matter, as may be necessary to give effect to the order of the Court of Appeal. In wliat court proceedinr the above-mentioned Act in respect of the injury caused to them by the death of the said A.B. , has been agi-eed [or ascertained], but a question has [or questions have] arisen [here state the questimts, spedfyiiKj only those ivhich have arisen; e.g.'} — (a) as to who are dependants of the said A.B. within the meaning of the above-mentioned Act ; or (b) as to the apportionment and application of the compensation payable to the dependants of the said A.B. [or as the case may he.} ',i. An arbitration under the above-mentioned Act is hereby I'equested between E.F. , the legal personal rei)resontative of the; said A.B. , acting on behalf of N.O. P.E. &c., dependants of the said A.B. [or between E.F. N.O. P.R. &c., dei>endants of the said A.B. ], and the said CD. & Co. , Limited, and G.H. J.K. and L.M. , who are or claim or may be entitled to claim to be dependants of the said A.B. [or as the case may be ; see Rule 5.] for the settlement of the said question [or questions]. 4. Particidars arc hereto appended [or annexed]. Particulars. 1. Name and late address of deceased workman. 2. Name and place of business of employer by whom com- pensation has been paid or is payable. 3. Date of accident to de- ceased, and date of death. 4. Agreed or ascertained aiuount of compensation to be paid to dependants of deceased. 5. Particulars as to whether the compensation money is still payable by the employer or has been paid by him, and if so, to whom, and in whose hands it now is. 6. Character in which the applicant api)lies for arbitra- tion, i.e., whether as legal per- sonal representative of deceased or as a dependant, and if as a dependant, particulars showing how he is so. WORKMEN S COMPENSATION FOEMS. ^43 Paetictjlars — continued. 7. Particulars as to the de- pendants or persons claiming to be dependants by whom, or on whose behalf the application is made, giving their names and addresses, and descriptions and occnpations (if any), and their relationship to the deceased, and if infants, their respective ages, and stating whether they were or claim to have been wholly or partially dependent on the earnings of the deceased at the tim.e of his death. 8. The like particulars as to any dependants who are made respondents. [Note. — If there is a legal personal representative, and he is not the applicant, he must he made a respondent,^ 9. Particulars as to any per- sons claiming or who may be entitled to claim to be depen- dants, but as to whose claim a question arises, and who are therefore made respondents, with their names, addresses, descriptions, and occupations (if any). 10. Particulars of the manner in which the applicant claims to have the amount of compensa- tion apportioned and applied. The names and addresses of the applicant and his solicitor are Of the Applicant, Of his Solicitor, The names and addresses of the respondents to be served with this application are : CD. & Co., Limited G.H. I.E. L.M. Dated this day of [^or as the case may 6e.] (Signed) [Or Applicant. Applicant's Solicitor.] 744 STATUTORY LTABILTTV OF EMI'LOYKKS. Form 4. Application for Arhitration with respect to the Compensation payable in respect of Expenses of Medical Attendance and Burial, ivltere Deceustd Workman leaves no Dependants. In the County Court of holden at In the matter of the "Workmen's Compensation Act, 1906. No. of Matter In the matter of an Arbitration between E.F., of \_address'\ [descriptio7i^ Applicant, and CD. & Co., Limited, of [«fZ- may be ; see Bale 4.] 1. On the day of personal injury by accident arising out of and in the course of his employment was caused to A.B. , late of , 750 STATUTORY LlABILI'lV OF EMPLOYERS. deceased, the master of the ship " " [or a seaman or an apprentice to the sea service or an apprentice in the sea -fishing service] and a member of the crew of the ship " " [or a pih)t employed on the ship " "], and on the day of the death of the said A.B. resulted from the injury. \_0r 1. The ship " " which left the port of on or about the day of , was lost with all hands on or about the day of [_or was last heard of on or about the day of , and is believed to have been lost with all hands.] "UHion the said ship left the said port A.B. late of , was the master thereof [or a seaman or an ajiprentice to the .sea service or an apprentice in the sea-fishing service] and a member of the crew of the said ship [or a pilot employed on the said ship]. 2. A question has [or questions have] arisen [here state the questions, sj)ecifyiruj onlij those ivhich have arisen ; e.g."] — (a) as to whether the said A.B. was a workman within the mean- ing of the above-mentioned Act ; or (b) as to the liability of the owners of the said ship to pay compensation under the above-mentioned Act to the dependants of the said A.B. in respect of the injury caused to them by the death of the said A.B. \ or (c) as to the amount of compensation payable by the owners of the said ship to the dependants of the said A.B. under the above- mentioned Act in respect of the injury caused to them by the death of the said A.B. ; or (d) as to who are dependants of the said A.B. within the meaning of the above-mentioned Act ; or (e) as to the apportionment and application of the compensation payable by the owners of the said ship to the dependants of the said A.B. in respect of the injury caused to them by the death of the said A.B. [or as tJte case maij he.~\ 3. An arbitration under the above-uumtioned Act is hereby requested between E.F. , the legal personal representative of the said A.B. [or between E.F. , a dependant of the said A.B. ] and the owners of the said ship, and G.B. , who claims or may be entitled to claim to be a dependant of the said A.B. [or as the case may he ; see Rule 4.] for the settlcmcmt of the said (question [or questions]. 4. Particulars are hereto appended [or annexed]. Particulars, 1. Name and late address of master, seaman, apprentice, or pilot. 2. Name of ship of which deceased was master [or of the crew of which deceased was a member or on which deceased was employed as })ilot] at time of accident or loss of ship, and port of registry. workmen's compensation forms. 751 Particulars — contittued. 3. Nature of employment at time of accident or loss of sliip. 4. Date and place of accident, nature of work on which de- ceased was then engaged, and nature of accident and cause of injury [or date and place when and where ship was lost or is deemed to have been lost]. 5. Natui'e of injury to de- ceased and date of death [or date when ship was lost or is deemed to have been lost]. 6. Earnings of deceased during the 3 years next pre- ceding the injury or date of loss, if he had been so long em- ployed under the same owners, or if the period of his emj^loy- ment had been less than the said 3 years, particulai-s of his aver- age weekly earnings during the period of actual employment under the said owners. 7. Amount of weekly pay- ments (if any) made to deceased under the Act, and of any lump sum paid in redemption thereof. 8. Name and address of appli- cant for arbitration. 9. Character in which appli- cant applies for arbitration, i.e., whether as legal personal repre- sentative of deceased or as a de- pendant, and if as a dejiendant, particulars showing how he is so. 10. Particulars as to the de- pendants of deceased by whom or on whose behalf the applica- tion is made, giving their names and addresses, and descriptions and occupations (if any), and their relationship to the deceased, and if infants, their respective ages, and stating whether they were wholly or partially depen- dent on the earnings of the de- ceased at the time of his death. 11. Particulars as to any persons claiming or who may be entitled to claim to bo depen- dants, but as to whose claim a question arises, and who are therefore made respondents, with their names, addresses, and descriptions and occupations (if any). 7o2 STATUTORY LIABILITY OF EMPLOYERS. PARTiCUliAHS — contintied. 12. Particulars of amount claimed as compensation, and of the manner in which the appli- cant claims to have such amount apportioned and applied. 13. Date of service of statu- tory notice of accident, and whether f^iven before deceased voluntarily left the employment in which he was injured. [A copy of the notice to he annexed.'} 14. If notice not served, reason for omission to serve same. The names and addresses of the applicant and his solicitor are : Of the Applicant, Of his Solicitor, The names and addresses of the respondents to be served with this applica- tion are : As representing the owners of the ship [State name and address of managing owner or manager, or of master of ship. See Rule 36 (G).] and G.B., Dated this day of (Signed) Applicant. \_0r Applicant's Solicitor.] Form 8. Application for ArUtraiion luhere Security has been given on behalf (f tlie Oivners of a Ship under Section 11. In the County Court of holden ut In the matter of the Workmeirs Compensation Act, 1906. No. of Matter In the matter of an Arbitration between A.B. of [^iddress] [description'] Applicant, and [names and addresses of persons giving security'] Eespondents. 1. On the day of personal injury by accident arising out of and in the course of his employment was caused to A.B. , of , workmen's compensation forms. 753 and the said A.B. claims that the owners of the ship " " are liable under the Workmen's Compensation Act, 1906, to pay compensation in respect of the said injvirj'. 2. The respondents have given security to abide the event of any proceed- ings that may be instituted in resjiect of the said injury, and to pay such compensation and costs as may bo awarded thereon. u. A question has [or Questions have] arisen [Aere state the questions, specifi/iii.0YEKS. for the purposes of the Workmen's Compensation Act, 1906,] certified that A.B. of was suffering from a disease coming within section 8 of the Workmen's Compensation Act, 1906, and was thereby- disabled from earning full wages at the work at which he was employed. [Or 1. On the day of A.B. of was in pursuance of special rules [(>/• regulations] made under the Factory and Workshop Act, 1901, suspended from his usual employment on account of his having con- tracted , a disease coming withixi section 8 of the Workmen's Com- pensation Act, 1906. J 2. The said A. B. alleges that the above-mentioned disease is due to the natiire of his employment in [ilo^rrihr (■mphiyrn('id~\, and that he was last em])loye(l in such employment within the twelve months jjrevious to the date of disablement or suspension by CD. & Co., Limited, of 'i. A question has [or Questions have] arisen \Jiere state the qnestioii^, specifying only those wltich have arisen, e.g.'] — (a) as to whether the said A.B. is a workman to whom the Work- men's Compensation Act, 1906, applies ; or (b) as to the liability of the said C.I). & Co., Limited, to pay com- pensation under the Workmen's Comi^eusation Act, 1906, in respect of the said disease \_or suspension] ; or (c) as to whether the said disease was in fact contracted whilst the said A.B. was in the eniisloyment of the said CD. & Co., Limited, ; or (d) as to whether the said disease is duo to the nature of the employ- ment of the said A.B. under the said CD. & Co., Limited, ; or (e) as to the amount [or duration] of the compensation payable by the said CD. & Co., Limited, to the said A.B. xinder the Workmen's Compensation Act, 1906, in respect of the said disease. [or as the case may he.~\ 4. An arbitration under the above-mentioned Act is hereby requested between the said A.B. and the said CD. & Co., Limited, for the settlement of the said question [or questions]. 5. Particulars are hereto appended [or annexed]. Particulars. 1. Name and address of ap- plicant. 2. Name, place of business, and nature of business of re- sj)oudents. 3. Nature of employment of applicant under respondents to which the disease was due. 4. Nature of disease. 5. Date of disablement or sus- pension. 6. Name {sic) and addi'esses of all other employers by whom apijlicant was employed in the same employment during the 12 months prtn'ious to date of disablement or susjjension. workmen's compensation forms. '55 Particulars— co/ti/jmecZ. 7. Particulars of incapacity for work, whether totiil or partial, and estimated duration of incapacity. 8. Average weekly earnings during the 12 months previous to date of disablement or sus- pension, if the applicant has been so long employed under respondents, or if not, during any less period during which he has been so employed. 9. Average weekly amoiuit which the ajiplicant is earning or is able to earn in some suit- able employment or business. 10. Paj'ment, allowance, or benefit received from emploj^er during period of incapacity. 11. Amount claimed as com- pensation. 1 2 . Date of service of statutory notice of disablement or suspen- sion on respondents. [A copy of the notice to be annexed.'] 13. If notice not served, reason for omission to serve same. The names and addresses, &c. [as in Form 1]. Form 10. Application for Arbitration by or on behalf of Dependants of Deceased Workman vjhose death has been caused by Industrial Disease. In the Count}' Court of holden at In the matter of the Workmen's Compensation Act, 1906. No. of Matter In the matter of an Arbitration between E.F. of [^address] [description:] Applicant, CD. & Co., Limited, of [addi^ess] [description^] G.H. and and of [address] [description] Eespondents, [or as the case may be ; see Rule 4.] 3c^ "^56 STATUTORY LIABILITY OF KMPLOYKKS. 1. On tho (lay of Afr. the coitifyiug surgcou umlcv the Factory and Worksboi) Act, 1901, for the district of [or ^Ir. one of the medical refei-ees appointed Ly the Secretary of State for the jiurposes of the Workmen's Compensation Act, 19()G,] certified that A.B. of was siitterinji' from , a disease coming within section 8 of the Workmen's C\)mpensation Act, 190(5, and was thereby disabled from earning full wages at the work at which ho was tnnployed ; and on the day of the said A.B. died, his death being caused by the said disease. [Or 1. On the day of A.l>. of was in pursuance of special rules [ar regulations] made under the Factory and Workshoj) Act, 1901, suspended from his usual employment on account of his having con- tracted , a di.soase coming within section H of the Workmen's Comp(!n- sation Act, 190(5, and on the day of the .said A.B. died, his death being caused by the said dis«nise.] [Or\. On the day A.B. late of died, his death being caused by , a disease; coming within section 8 of the Workmen's Compen.sation Act, 1906.] 2. The applicant alleges that the above-mentioned disease was due to the nature of the employment of the said A.B. in [describr emjiloi/- ment], and that he was last employed in such emiiloj-ment within the twelve months j)revious to his disablement or suspension [or, if the laoj-kinan died tvithont havimj obtained a certificate of disahfeinent, or toas not at the time of his death in receipt of a wceldy payment on account of disablement, within the twelve months previous to his death] by CD. & Co., Limited, of 3. A question has [or Questions have] arisen [here state the questions, specifi/inspect of the injury caused to them by the death of the said A.B. ; or (c) as to whether tho said disease was in fact contracted whilst the said A.B. was in tho employment of the said C.l). & Co., Limited, ; or (d) as to whether the said disease was due to tlie nature of the employ- ment of the said A.B. under the said C.I). & Co., Limited, ; or (e) as to whether the death of the said A.B. was in fact caused by the said disease ; or (f) as to the amount of ccnnpensation payable by the said CD. & Co., Limited. to the dependants of tho said A.B. under the above-mentioned Act in respect of the injury caused to them by the death of the said A.B. ; or (g) as to who are dependants of the said A.B. within i\\o. meaning of tho above-mentioned Act ; or (h) as to the apportionment and application of tho componsatiou payable by the said CD. & Co., Limited, to t\\o, deijendants of the said A.B. in respect of tho injury caused to them by the death of the said A.B. \or as the case may be.'l workmen's compensation forms. 757 4. An arbitration under the above-mentioned Act is hereby requested between E.F. , the legal personal representative of the said A.B. acting on behalf of the dependants of the said A.B. [or between E.F. , a dependant of the said A.B ,] and the said C.J). & Co., Limited, and G.II. , who claims or may be entitled to claim to be a dei)endant of the said A.B. [r/?- (/,s tln' C((se muji he ; see Rule 4.] for the settlement of th(! said question [_r ann(!xedl. Particulars. 1. Name and late address of deceased workman. 2. Name, place of business, and nature of business of re- spondents fi-om whom compen- sation is claimed. 3. Nature of employment of deceased under i-espondents to which the disease was due. 4. Nature of disease. 5. Date of disablement, and date of death. 6. Earnings of deceased during the o years next preceding dis- ablement, if he had been so long in the employment of the respondents, or if the period of his employment had been less than the said 3 years, parti- culars of his average weekly earnings during the period of his actual emi^loyment under the respondents. 7. Names and addresses of all other employers by whom de- ceased was employed in the same employment during the 12 months previous to the date of disablement. 8. Amount of weekly pay- ments (if any) made to deceased under the Act, and of anv lump sum paid in redemption thereof. 9. Name and address of applicant for arbitration. 10. Character in which apjjli- cant applies for arbitration, i.e., whether as legal personal repre- sentative of deceased or as a dependant, and if as a depen- dant, particulars showing how he is so. 758 STATUTORY LIABILITY OF EMPLOYEUS. Particulars — con t in iitd. 11. Particulars as to depen- dants of deceased by whom or on whose behalf the application is made, jrivinp; their names and addresses, and descriptions and occupations (if any), and their relationship to the deceased, and if infants, their respective ages, and stating whether they w^ere wholly or partially dependent on the earnings of the deceased at the time of his death. 12. Particulars as to any persons claiming or who may be entitled to claim to be dej)en- dants, but as to whose claim a question arises, and who are therefore made r(>spondents, with their names, addresses, and descriptions and occupations (if any). 13. Particulars of amount claimed as compensatitm, and of the manner in which the; ai)plicant claims to hav(> such amoimt apportioned and applied. 14. Date of service of statutory notice of disablement. \_A copy of the notice to be nnnexed.'\ 15. If notice not served, reason for omission to serve same. The names and addresses, &c. [r^s■ in Form 2]. Form U. Application for Arbitration where riijhts of Employer ayoinsl Insurers are transferred to Workman under Section o. In the County Court of holden at In the matter of the Workmen's Compensation Act, 19()(). No. of Matter In the matter of an Arbitration between A.B. of \_address'] \_description'] [name and address of Insurers'] and Applicant, Eespondents. 1. On the day of personal injury by accident arising out of and in the course of his employment was caused to A.B. , a workman employed by , of [name and address of employer'] [or by of *, a contractor with \_naint and address of employer] ior the execu- workmen's compensation forms. 759 tion of work undertaken by hiui], and the said A.B. claims that the said \_einployer'] thereupon became liable to pay compensation under the Workmen's Compensation Act, 19()G, to the said A.B. in respect of such injury. \_0r, ivhtre wfekly pai/ment Juts been settled, 1. Under an agreement [or a decision or an awai-d or a certificate] recorded in this court on the day of a weekly payment of is payable by of \_name and address of empJoi/er] to the above-mentioned A.B. as compensation for personal injury caused to the said A.B. by accident arising out of and in the course of his employment as a workman employed by the said \_eniploi/er'\ [or by of , a contractor with the said [einjt/in/er'] for the execution of work undertaken by him].] 2. The resjjondents are insurers of the said [employer^ in respect of his [or their] liability to pay such compensation. 3. The said [employer^ has become a bankrupt [or made a composi- tion or arrangement with his creditors [or, if the employer is a company, The said has commenced to be wound up] ; and the i-ights of the said [employer'] against the respondents as such insurers in respect of his [or their] liability to the said A..B. have by virtue of section 5 of the said Act been transferred to and vested in the said A.B. 4. A question has [or Questions have] arisen [here state the c^uestions, specifying only those which have arisen, e.g.] — (a) as to whether the said A.B. is a workman to whom the above- mentioned Act ajjplies ; or (b) as to the liabilitj' of the said [employer] to pay compensation under the above-mentioned Act in respect of the said injury ; or (c) as to the liability of the respondents as such insurers as aforesaid to the said A.B. ; or (d) as to the amount [or duration] of the liability of the respondents as such insurers as aforesaid to the said A.B. : [or as the case may he.] 5. An arbitration under the above-mentioned Act is hereby requested between the said A.B. and the respondents for the settlement of the said question [or questions]. 6. Particulars are hereto appended [or annexed]. Particulars. [Here insert particnlars containing a concise statement of the circumstances under tvhich the application is made, and of all matters necessary to he stated in order to bring the questions to be settled prope7'ly before the judge or arbitrator, and of the relief or order ndiich the applicant claims, adapjting the particulars given in the pireceding forms to the circumstances of the case.] The names and addresses of the ai^iilicant and his solicitor are : Of the Applicant, Of his Solicitor, The name and address of the respondents to be served with this application are : Dated this day of (Signed) Applicant. [Or Applicant's Solicitor.] Note. — This form to be adapted as required to an application for arbitra- tion (IS between the dependants of a deceased workman and insurers. 760 STATUTORY LIABILITY OF EMPLOYERS. Form 12. Notice to Applicant of Day upon irhich Arbitration v)iU he proceeded with. \_neadi)i(j as in Bequest for Arbitration.^ Take Notice, that the judge of this Court [or Mr. th(! arbitrator appointt'd by the judge of this Court] will proceed with the arbitration in this matter at on the day of at the hour of o'clock in the noon. Dated this day of To Of Registrar. Form 13. Notice to Respondent of Day upon ivhiclt Arbitration null he procieded with. \_Headiny as in Request for Arbitration.^ Take Notice, that the judge of this Court [or Mr. the arbitrator appointed by the judge of this Court] will proceed with the arbitration apj)lied for in the rec^uest and particulars a sealed copy of which is served herewith at ■ on the day of at the hour of o'clock in the noon : and that if you do not attend either in person or by your solicitor at the time and i)lace above mentioned such order will be made and j^roceedings taken as the judge [or arbitrator] may think just and expedient. And further take notice, that if you wish to disclaim any interest in the subject matter of the arbitration, or consider that the apjilicant's particulars are in auj' respect inaccui'ate or incom})lete, or desire to bring any fact or document to the notice of the judge [or arbitrator], or intend to rely on any fact, or to deny (wholly or i)artially) j'our liability to j)aj- compensation under the Act, you must file with me an answer, stilting your name and address and the name and address of j'our solicitor (if any), and stating that you disclaim any interest in the subject matter of the arbitration, or stating in what respect theapi)licant's particulars are inaccurate or incomplete, or stating concisely anj' fact or document which you desire to bring to the notice of the judge [or arbitrator], or on which you intend to rely, or the grounds on and extent to which you deny liability to pay compensation. Such answer, together with a copy thereof for the judge [or arbitrator], and a copy for the applicant and for each of the other respondents, must bo hied with me ten clear days at least before the day of If no answer is filed, and subject to such answer, if any, the applicant's ])articulars and your liability to jiay compensation will be taken to be admitted. Dated this day of To Of Registrar. workmen's compensation forms. 761 Form 14. Ansiver by Respondents. \_Not tu be printed, but to be used as a Precedent.'] ^Heading as in Bequest for Arbitration.'] Take Notice — That the respondent, G.H. dischiims any interest in the subject- matter of the above arbitration. Or That the respondents, CD. & Co., Limited, state that the applicant's particulars filed in this matter are inaccui'ate or incomplete in the particulars hereto annexed. Or That the respondents, C.I). & Co., Limited, desire to bring to the notice of the judge [or arbitrator] the facts stated in the particulars hereto annexed. Or That the respondents, CD. & Co., Limited, intend at the hearing of the arbitration to give evidence and rely on the facts stated in the particulars hereto annexed. Or That the respondents, CD. & Co., Limited, deny their liability to pay compensation under the Act in respect of the injury to A.B. mentioned in the applicant's particulars, on the grounds stated in the particulars hereto annexed. Particulars. 1. Particulars in ivhich the particulars filed by the Applicant are inaccurate or incomplete. 2. Facts which the Respondents desire to briny to the notice of the Judye [or Arbitrator], That the applicant A.B. refuses to submit himself to medical examination as re(]uired by [_or obstructs the medical examination required by] the respondents, CD. & Co., Limited, in accordance with para- graph 4 of the first schedule to the Act [or refuses to submit himself for examination by a medical referee as ordered [or obstructs the examination by a medical referee oi'dered] in accordance with paragraph 15 of the first schedule to the Act.] [or as the case may be,] ~62 STATUTORY LIABILITY OF EMPLOYERS. 3. Fttds wJiicli the Ilesjjoiidents, CD. t& Co., Litaited, intend to give in evidence and rely on at the hearing of the Arbitration. That notice of the alleged accident [or of death, disablement or suspension] was not given to the res^jondents as required by the Act ; or That the claim for comi)ensation was not made on the respondents within the time limited by the Act ; (//• That a scheme of compensation [benefit or insurance] for the worknuni of the respondents, U.l). & Co., liimited, has been duly certified by the Registrar of Friendly Societies, and such certificate was in force at the date of the alleged accident, and the said CD. & Co., Limited, contracted with the applicant A.B. [or with the dcceas(>d workman], by a contract which was in force at the date of the alleged accident, that the provisions of the said scheme should be substituted for the provisions of the Act, and the said CD. & Co., Limited, an; consequently liable only in accordance with the said scheme. [or as the case may he.'\ 4. Groitnds on lohich the llespondents deny their Liability to pay Compensation. (i.) That the ajiplicant A. 13. is [or the deceased workman was] not a workman to whom the Act apjjlies ; or (ii.) That the injury to the applicant [or to the deceased workman] was not caused by accident arising out of and in the course of his employment ; or (iii.) That the injury to the applicant [or to the deceased workman] was attributable to the serious and wilful misconduct of the a^jplicant [or of the deceased workman], and did not result in death or serious and permanent disablement ; or (iv.) That at the time of the alleged accident the api^licant [or the deceased workman] was not immediately employed bj- the respondents, but was employed by of , a contractor with the respondents for the execution by or under such con- tractor of work undertaken by the respondents, and the accident occurred elsewhere than on, in, or about premises on which the respondents had undertaken to execute the work or whicli were otherwise under the control or management of the respondents ; or (v.) That the injury to the applicant [or to the deceased workman] was caused raider circumstances creating a legal liability in a person other than the respondents, to wit, [name and address of such 2>erson2 to paj' damages in respect thereof, and the applicant [or the deceased workman] has taken proceedings against that person and has recovered damages from him ; or in case of industrial disease, (vi.) That the applicant [or the deceased worknnin] at the time of entering the employment of the respondents wilfully and falsely reprc'senti'd himself in writing as not having previously suffered from the disease mentioned in the applicant's particulars ; or (vii.) That the disease mentioned in the applicant's particulars was not contracted whilst the ai)plicaiit [or the deceased workman] was in the employment of the respondents ; or workmen's compensation p^orms. 763 (viii.) That the disease mentioned in the applicant's particulars was not due to the nature of the employment in which the applicant [or the deceased workman] was employed by the respondents : [or as the cane may he.'] And further take notice, that the names and addresses of the said respon- dents and their solicitors are : of the Eespondents, CD. & Co., Limited, of their Solicitors, Dated this day of (Signed) Solicitors for the Eespondents. To the Eegistrar of the Court, and CD. & Co., Limited. To the Applicant, A.B., and To the Eespondents [^if any, naming them']. FOEM 15. Notice hy Respondeid admitting LiahiJity, and suhmitting to an Aivard for Payment of a. Wieldy Sum, or paying Money into Court. \_Not to be printed, but to be used as a Frecedoit.] \_Heading as in Request for Arbitration,] Take Notice— That the respondents, CD. & Co., Limited, admit their liability to pay compensation in the above-mentioned matter. And they hereby submit to an award for payment by them to the applicant, A.B. of the weekly sum of such weekly payment to commence as from the day of and to continue diu-ing the total or partial incapacity of the said A.B. for work, or until the same shall be ended, diminished, increased, or redeemed in accordance with the pro- visions of the above-mentioned Act. And for payment by them to the applicant forthwith after the award of the amount of such weekly payments calculated from the day of until the first Saturday [or other usual pay day] after the date of the award, and for the payment thereafter of the said svim of to the apjjlicant on Saturday [or other ustud pay day] in every week. [Or, And the said CD. & Co., Limited, herewith pay into Coiu't the sum of £ in satisfaction of such liability.] Dated this day of (Signed) Solicitors for the Eespondents, To the Eegistrar of the Court, and CD. & Co., Limited. To the Applicant A.B., and To the Eespondents [if any, naming thein]. 764 STATL'TORY LIABILITV OF EMPLOYERS. FouM 1(5. Notice of Fifing of Siibmission to an Aivard, \_Headinij us in Riqatst for Arbitration. ~\ Take Notice— That the rospouclcmts, CD. & Co., Limited, have this day filed with me a notice (copy of which is sent herewith) that they admit thcnr liability to pay compensation in the above-mentioned matter, and submit to an award for i)ayment by them to you of the weekly sum of If you elect to accept such weekly sum in satisfaction of your claim, you must send to the rejjistrar of this Court, and to the said C.I). & Co., Limited, a written notice forthwith by post, or leave such notice at the office of the rcg-istrar, and at the residence or i)lace of business of the said CD. & Co., Limited. If you send such notice, the jud<;-e of this Court will, on application made to him. make an award directin;;- payment of such weekly sum to you, and you will be liable to no fui'ther costs. In default of such notice, the arbitration will b(! proceeded with ; and if no greater weekly payment is awarded to you, yoxi will be liable to be ordered to pay the costs incurred by the respondents subsequent to the receipt by you of this notice. Dated this day of Registrar. To the Applicant, A. 13. Form 17. Notice of ray mod into Court. \_lleadin(j as in Reqiast for Arbitration.'] Take Notice — That the respondents, CD. & Co., Limited, have this day lilc>d with me a notice that they admit their liability to pay compensation in the above- mentioned matter, and they have paid into Court the sum of £ in satisfaction of such liability. If you are willing to accept the sum so paid into Court in satisfaction of the compcsnsation payable in the above-mentioned matter, you must send to the registrar of this Court, and to the said CD. & Co., Limited, and to the other respondents [or, where tliis ttotice is sent to a respondent, to the appUcant and the other respondents], a written notice forthwith by post, or leave such notice at the ofhce of the registrar, and at the residence or place of business of the said CD. & Co., Limited, and at the residence or place of business of each of the other respondents [or of the appHcant and each of the other respondents]. If von and all the other respondents [or If you and the apjilicant and all the other respondents] send such notice, and agree as to the apportionment workmen's compensation forms. 765 and application of the said sum of £ , the judge of this Court will on apjjlication made to him, make an award for such appf)rtionmont and application, and you will be liable to no further costs. If you and all the other respondents [or If you and the applicant and all the other respondents] send such notice, but do not agree as to the appor- tionment and application of the said sum of £ , the arbitration will be proceeded with as between you and such other respondents \_or as between the applicant and yourself and such other respondents]. In default of such notice being sent by you and all the other respondents [or by the applicant and yourself and all the other respondents], the arbitration will be proceeded with ; and if no greater amount than the said sum of £ is awarded as comjiensation, the parties who do not send such notice will be liable to be ordered to pay the costs incurred by the respondents, CD. & Co., Ijimited, subsequent to the receipt by such parties of this notice, and also any costs incurred subsequent to the receipt of this notice by any parties who send notice of their willingness to accept the said sum of £ in satisfaction of the compensation payable in the above-mentioned matter. Dated this day of Registrar. To the Applicant, A.B., [or To the Respondent, G.H.] [or as the case may be']. Form 18. Notice of Acceptance of Weekly Sum offered, or of loilllngness to accept Slim, paid into Court. [_Not to he printed, hut to he used as a Precedent.] \_Headiwj as in Bequest for Arhitration.] Take Notice — That the applicant, A.B. accepts the weekly sum offered by the respondents, CD. & Co., Limited, in satisfaction of his claim in the above-mentioned matter [or that the applicant, E.F. [or the respondent, G.H.] is willing to accept the sum of £ paid into Court by the respondents, CD. & Co., Limited, in satisfaction of the compensation payable in the above-mentioned matter]. But the applicant [or the said respondent, G.II. ] will apply to the judge to include in his award an order directing the said respondents, CD. & Co., Limited, to pay the costs properly incurred by the applicant [or the said respondent, CH. ] before the receipt of notice of the offer of the said weekly sum [or of notice of payment of the said sum of £ into Court]. Dated this day of (Signed) Applicant. [Or To the Registrar of the Court, and Respondent.] To the Respondents, CD. & Co., Limited, and To the Applicant, A.B., and To the Respondents [naming them]. 766 STATUTORY LIAlilLITY OF EMPLOYERS. Form 19. Application for Addition of Employer as Respondent under Section 8, Sub-sectio)i (1), Pttrac/raph (c), Proviso (ii). [^Not to be printed, but to be used as a Precedent.'\ \_Headimi as in Bequest for ArbitratioiiJ] Take Notice — That the respondents, CD. & Co., Limited, iillege that the disease mentioned in the applicant's particulars filed in this matter was in fact contracted while the applicant [or the deceased workman] was in the emplojTiient of of , and not whilst in the employment of the said CD. & Co., Limited. And the said CD. & Co., Limited, hcr('l)y apply for an order that the said be joined as ri'spondents in the above arbitration, and if necessarj' for an adjournment of the hearing of the arbitration. Dated this day of (Signed) CD. & Co., Limited. By Secretary. \_0r Solicitors for the Respondents, CD. & Co., Limited.] To the Registrar of the Court. Form 20. Order adding Respondents. \_Heading as in Request for Arbitration.'] It is this day ordered, on the application of the respondents, CD. & Co., Limited, that of be added as respondents to this arbitration [and that the hearing of this arbitration be adjourned to the day of at o'clock in the noon]. Dated this day of Registrar. workmen's compensation forms. 767 Form 21. Notice to Applicant and Original Respondents of Addition of Respondents. I Heading as in Request for Arlitration.'] Take Notice — That by order dated the day of , it was ordered on the applica- tion of the respondents, CD. & Co., Limited, (a copy whereof is hereto annexed), that of be added as respondents to this arbi- tration [and that the heaiing of this arbitration be adjourned to the day of at o'clock in the noon]. Dated this day of Registrar. To the Applicant and The Respondents, CD. & Co., Limited. Form 22. Notice to Parties who are added as Respondents. \_Headin(j as in Request for Arbitration, "] To Messrs. of [address and description']. Take Notice — That by an order of this Court, dated the day of , a copy of which order is hereunto annexed, together with a copy of the request and particulars filed by the applicant in this matter, and a copy of the application on which the said order was made, you were ordered to be added as a respondent in the above arbitration. And further take notice, that the hearing of the above arbitration has been appointed for the day of at o'clock in the noon, and that if you do not attend, either in person or by your solicitor, at the court-house at upon the day and at the hour above-mentioned, such order will be made and proceedings taken as the judge [or arbitrator] may think just and expedient. And further take notice, that if you wish to disclaim any interest in the subject-matter of the arbitration, or consider that the applicant's particulars are in any respect inaccurate or incomplete, or desire to bring any fact or document to the notice of the judge [or arbitrator], or intend to rely on any fact, or to deny (wholly or partially) your liability to pay compensation under the Act, you must file with me an answer, stating your name and address and the name and address of your solicitor (if any), and stating that you disclaim any interest in the subject-matter of the arbitration, or stating in what respect the applicant's particulars are inaccurate or incomplete, or stating concisely any fact or document which you desire to bring to the notice of the judge [or arbitrator], or on which you intend to rely, or the grounds on and extent to which you deny liabilitj^ to pay compensation. 768 STATUTORY LIAHILITY OF EMPLOYERS. Such answer, together with a copy thereof for the judge [or arbitrator], and a copy for the applicant and for each of the other respondents, must be filed with me ten clear days at least before the day of If no answer is filed, and subject to such answer, if any, the applicant's particulars and your lia])ility to pay compensation will be taken to be admitted. Dated this day of To Of Registrar. Form 23. Notice by Respondent to Third Parties. \_Not to he printed, but to be used as a Frecedent.'\ [Heading as in Bequest for Arbitration,'^ To Mr. , of [_address and description^. T.\KE Notice— That A.B. of, &c. has filed a request for arbitration (a copy whereof is hereto annexed) as to the amount of compensation payable by the respondents, CD. & Co., Limited, to the said A.B. in resjject of personal injury caused to the said A.B. by accident arising out of and in the course of his emjiloyment. [Or that E.]<^. of has filed a request for arbitration (a copy whereof is hereto annexed) witli respect to the compensation payable to the dependants of A.B. deceased, in respect of the injury caus(Mi to the said dependants by the death of the said A.B. which resulted from injury caused to the said A.B. by accident arising out of and in the course of his employment.] [or as the case may be; see /onus of re above- menti(med Act. (M First Satur- day or other usual pay day af tfr date of award. ( = ) Or other usual pay day. 2. And I order that the said CD. •said A.B. the sum of £ being calculated from the day of do thereafter i)ay the said sum of in every week. & Co. do forthwith pay to the the amount of such weekly payments until the day of ('j and to the said A.B. on Saturday (^) 4. And I order that the said CD. & Co. do pay to the registrar of this Court, for the use of the applicant, his costs of and incident to this arbitration, such costs, in default of agreement between thts i)arties as to the amount thereof, to be taxinl by the registrar under colunui of the scales of costs in use in the County Courts, and to be paid by the said CD. & Co. to the registrar within 14 days from the date of the certi- ficate of the result of such taxation. Dated this day of Judge \_or Arbitrator]. (ii.) Til C(($e of Ap]>li cation hij Depcnchmts. \_II('a(ling us in Request for Arbitration.^ Having duly considered the matter submitted to me, I do hereby make my award as follows : — \_Here insert any introductory recitals of fiitdinijs on ivliich the amard is made tvhich the judge or arbitrator may direct. 1 1. I order that the respondents, CD. & Co., Limited, do pay the sum of £ to the de])oudants of A.B., late of . deceased, as coui])ensa- tion for the injury lesultiug to such dependants fro:n the death of the said A.B. , which took place on the day of from injury caused to the said A.B. on the day of by accident arising out of and in the course of his employment as a workman employed by the said respondents. workmen's compensation forms. 771 2. And I declare that the pen-sons hereinafter named arc entitled to share in such compensation as doj)endants of the said A.B. , that is to say, J.B., the widow of the said A.B., and (") (i) Name the other persons. 3. [A(1(J, if so found. '\ And I declare that the respondent G.H. , the of the said A.B. , is not entitled to share in such compensation as a dependant of the said A.B. 4. And I order that the said sum of £ be apportioned between the said J.B., and (') in the j^roportions following, that is to say : — I apportion the sum of £ to or for the benefit of the said J.B., and C-^) Specify the the sum of £ to or for the benefit of the said ('-) persons ^ ' entitled and the sums apportioned them. 5. And I order that the said CD. & Co., Limited, do pay the said sum of £ to the registrar of this Court within 14 days from the date of this award. 6. And I order that on payment to the registrar of the said sum of £ , the registrar do forthwith pay to the said J.B. the sum of £ hereby apportioned to her, [or the sum of £ out of the sum of £ hereby apportioned to her, and that the balance of the last-mentioned sum (less the fee for the investment thereof) be invested by the registrar in his name in the Post Office Savings Bank for the benefit of the said J.B., and that out of the sum so invested and the accruing interest thereof the registrar do from time to time until further order pay to the said J.B. the weekly [or fortnightly] sum of £ , the first payment to be made on the ' day of ]. 7. And I order that on payment to the registrar of the said sum of £ the sums of £ and £ hereby apportioned to or for the benefit of the said respectively (less the fees for the investment thereof) be invested by the registrar "in his name in the Post Office Savings Bank for the benefit of the said and _ respectively, and that interest arising from such invest- ments be from time to time until further order paid to the said J.B. to be by her applied for the maintenance, education, or benefit of the said and respectively. 8. And I order that the said J.B. and the said or any of them be at liberty to apply to the Judge from time to time as they may be advised for any further or other order as to the ajjplication of any of the said siims so ordered to be invested and the accruing interest thereof. 9. And I order that the said CD. & Co., Limited, do pay to the registrar of this Court, for the use of the applicants, their costs of and incident to this ai'bitration, such costs, in default of agreement between the parties as to the amount thereof, to be taxed by the registrar under 3d2 772 STATUTOm' I.T.VBILTTY of EMI'LOVEUS. column of the scales of costs in use in tlio County Courts, and to be ■ paid l)j- the said C.J). & Co., Liujitod, to the registrar within 14 days from the date of the certificate of the result of such taxation. l^Ad't directions (if any f/ii'en) as to costs occasioned hy claim of person claiminy as a dependant tvhose claim is disalloioed.'] Dated this day of Judge [in- Arbitrator]. (iii.) In casi' of A/i])/icution hy Person to n)]inin expenses of Medical Attendance or liuritd are due. IHeuding as in Request for Arhitration.'] Having duly considered the matters submitted to me, I do hereby make my award as follows :— \_Leave space for any introductory rerittds of findings on whiili the anutrrrT.OYERS. Form 31. Notice of Memoranduin futving been received. In the Pouiity Court of holilcu at [^HeadiiKj as in Memorandum. '\ Take Notice, that a memorandum, coijy of which is hereto annexed, has been sent to me for registration. Such memorandum appears to affect you. I have therefore to request you to inform mo witliiu 7 days from this dat(> whether you admit the genuineness of the memorandum, or whether you dispute it, and if so, in what particulars, or object to its being recorded, and if so, on what grounds. If you do not inform me in due course that you dispute the genuineness of the memorandum or object to its being recorded, it may be recorded witliout further int^uiry, and will be enforceable accordingly. If you dispute its genuineness or object to its being recorded, it will not be recorded, except with your consent in writing, or by order of the judge of this Court. Dated this day of To Registrar. Form 38. Notice disputing Memorandum, or objecting to its being recorded. [_Nor to be printed, bid to be used as a Prtcedeat.'] In the County Court of holden at \_fleading as in Memorandum.^ Take Notice, that the undersigned C.I). iX: Co., of &c., dispute the genuineiiess of the nieiiunaiHlum sent to you for registration in the above-mentioned matter in the following particulars : — [Acre state jjarticu/ars.^ \_or Take Notice, that the undersigned CD. & Co., of &c., object to the memorandum sent to you for registration in the above- mentioned matter being recorded, on the following grounds : — [here state grounds — see particularly Schedule 2, par. 9, proviso (b)] .] Dated this day of CD. & Co., Limited, by Secretary. l_or Solicitors for CD. & Co., Limited.] To The Registrar. workmen's compensation forms. 783 Form 39. Notlrctlidl McmoraiKhim /« disputed, or (if Ohji-dion. to its hn'n;/ recorded. [_Ife(tilin(j as in Meinorandnm.'] Take Notice, that the genuineness of the memorandum in the above- mentioned matter left with [cr sent to] me for registration is disputed _by of , a party affected by such memorandum, in the following particulars : \_here state particulars of dispute.'] [or that of , a party interested in the memorandum in the above-mentioned matter left with [or sent to] me for registration, objects to the same being recorded, on the following grounds • \Jiere state grounds.] ] The memorandum will therefore not be recorded, except with the consent in writing of the said , or by order of the judge of this Court. Dated this day of To Eegistrar. Form 40. Notice of Application for Registration of Memorandum or for Rectification of Register. \^Not to he printed, but to he used as a Precedent.] In the County Court of holden at \_Heading as in Memorandum.] Take Notice, that I intend to apply to the judge at on the day of , at the hour of o'clock in the noon [in case of notice by solicitor, on behalf of of ], for an order for the registration of the memorandum sent to the registrar in the above-mentioned matter [or for an order for the rectification of the memorandum recorded in the above- mentioned matter] by [state particulars of rectification appdied Jor], and for consequential directions, and for costs. Dated this day of Applicant. [Or Applicant's Solicitor.] To the Eegistrar of the Court and to and to Messrs. [his [or their] solicitors]. 784 STATUTORY LIAIUIJTV OF F.MPLOYERS. FuKM 11. Notice to l'(trticnrd of Miinorandum of Agreement from Register under Schedule II., Fanigi-aph 9, Proviso (e). In the County Court of holden at [^Heading as in Memoraridum.'\ Take Notice, that I intend to apply to the judge at on the day of at the hour of in the noon, for an order for the removal from the regist(»r of the record of the memorandum of the agreement in the above-mentioned matter which was recorded on the workmen's compensation foems. 785 day of , pursuant to proviso (e) to paragraph 9 of the second schedule to the above-mentioned Act, on the ground that the said agreement was obtained by fraud [or undue influence 07- imj^roper means], and for consequential directions, and for costs. Dated this day of Applicant. \_0r Applicant's Solicitor.] To the Registrar of the Coui't and to Messrs. and his [or their] Solicitor. Form 43. Notice to Parties ivliere Judge directs Inquiry as to Jtemoval of Record of Memoranduin of Agreement from Register under Schedule II., Paragraph^, Proviso (e). In the County Coiu't of holden at [^Heading as in llemorandwm.'] Whereas it has been made to appear to the judge that an inquiry should be held as to the removal from the register of the record of the memorandum of the agreement in the above-mentioned matter which was recorded on the day of , pursuant to proviso (e) to paragraph 9 of the second schedule to the above-mentioned Act, on the ground that the said agreement was obtained by fraud \_or undue influence or improper means] : Take Notice, that you are hereby summoned to attend before the judge at a Coiu't to be holden at on the day of at the hour of in the noon, when the matter will be inquired into by the judge; And that if you do not attend either in person or by your solicitor on the day and at the hour above-mentioned such order will be made and proceed- ings taken as the judge may think just and expedient. Dated this day of Eegistrar. To \_aU parties concerned^. M. 3 e; 786 STATUTORY LIABILITY OF EMPLOYKRS. Form 44. Form of Certificate under Section 1, Sub-section 4. In the rounty OoTirt of holden at No. of i)laint. Between A.B., of [address'] [^descrij^tionl Pluintill, and CD. & Co., Limited, of [address'] [description] Defendants. And in the matter of the Workmen's Compensation Act, 190G. I hereby certify that on the day of the above-named plaintiff commenced the above-named action against the above-named defendants chiiming [here state claim of plaintiff in action.] And that on the trial of the said action on the day of it was determined that the injury in respect of which the plaintiff claimed damages in the said action was one for which the defendants were not liable in the said action, but that such defendants would have been liable to pay compen- sation in respect of such injury under the above-mentioned Act ; And that thereupon the said action was dismissed, but the Court, on the request of the plaintiff, proceeded to assess the compensation which the defendants would have been liable to pay under the said Act. And that the Court assessed such compensation at the sum of £ and directed [state directions given as to payment of compensation, and directions, if any given, as to costs, and as to the deduction from the compensation of any costs which in the judgment of the Court ivere caused by the plaintiff bringing the action instead of proceeding under the Act]. Dated this day of Registrar. workmen's compensation forms. 787 Form 45. Application for Summons of Medical Referee as Assessor. [_Not to he printid, hut to he used as a Precedent.^ [Heading as in Bequest for Arbitration.^ The applicant [or respondent] applies to the judge to summon a medical referee to sit with him as an assessor, on the ground that questions are likely to arise in the arbitration as to the condition of the aj^plicant or his tituess for emitloymont [(-/• as the case inay be'], and that it is desirable that the j udge should have the assistance of a medical referee in the determination of such questions. Dated this day of To the Registrar (Signed) A.B. of the Court. Applicant. or Solicitor for the Applicant. [_or as the case may he.] I consent to a medical referee being summoned to sit with me as an assessor. Judge. Form 46. Notice of Refusal to summon Medical Referee as Assessor. [Heading as in Request for Arbitration.] T hereby give you notice that his Honour the Judge of this Court has directed me to inform you that your application for a medical referee to be summoned to sit with the judge as an assessor is refused, the judge being of opinion that the summoning of a medical referee is unnecessary. Dated this day of Registrar. To [the applicant for an assessor.] Form 47. Summons to Medical Referee to sit as Assessor. [Title as in Request for Arbitration.] The day of Sir, You are hereby summoned to attend and sit with the Judge as an assessor at the court-house situate at on the day of at the hour of in the noon. I am, sir. Your obedient servant, To of Registrar, 3e3 788 STATUTORY LIABILITY OF EMPLOYERS. Form 48. AppUmtionfor Reference to Medical Referee under Schedule /., Faracjrapli 15. \_Not to he jyrinted, but to he used as a Precedent.'} In the County Court of holdon at In tho matter of the Workmen's Compensation Act, lOOG. In the matter of a claim for compensation made by A.B. of , against CD. & Co., Limited , of . [or, loliere an arbitration is pending, In the matter of an arbitration between A.B. of [ciddress'] [description'] Applicant, and CD. & Co., Limited of [address'] [description] Eespondents. [or, where application is made after loeeUy payment has been settled. In the matter of an agreement [or a decision or award or certificate] recorded in the above-mentioned Court as to the weekly payment payable to A.B. , of , by CD. & Co., Limited of Application is hereby made to the Court on behalf of the above-named A.]5. and CD. & Co., Limited, for a reference in tho above-mentioned matter to a medical referee pursuant to paragraph 15 of the first schedule to the above-mentioned Act under the following circumstances :— 1. On the day of notice was given by [or on behalf of] the above-mentioned A.B. to the above-mentioned CD. & Co., Limited , of personal injury caused to the said A.B. by accident arising out of and in the course of his employment, in respect of which injury the said A.B. claims compensation from the said CD. & Co., Limited, under the said Act. [or, -where arbitration is pendiiaj, 1. An arbitration under the said Act is pending between the above- mentioned A.B. and the above-mentioned CD. & Co., Limited , as to the amount of compensation payable to the said A.B. under the said Act in respect of personal injury caused to him by accident arising out of and in the course of his employment.] [or, inhere weekly payment has been settled, 1. Under an agreement [or a decision or award or certificate] in the above- mentioned matter, recorded in this Court on the day of , a weekly payment is payable to the above-mentioned A.B. by the above- mentioned CD. & Co., Limited, as compensation in respect of personal injm-y caused to the said A.B. by accident arising out of and in the com-se of his employment.] 2. The weekly payment claimed by [or payable to] the said A.B. is workmen's compensation forms. 789 3. A question has [or Questions have] arisen between the said A.B. and the said CD. & Co., Limited, , as to the condition [or fitness for employment] of the said A.B. [or as to whether [or to what extent] the incapacity of the said A.B. is due to the accident], [or as to the condi- tion [or fitness for employment] of the said A.B. and as to whether [or to what extent] the incapacity of the said A.B. is due to the accident], and no agreement can be come to between the said CD. & Co., Limited, and the said A.B. with reference to such question [or questions]. 4. The said A.B. has submitted himself for examination by a medical IDractitioner provided by the said CD. & Co., Limited, [or has been examined by a medical practitioner selected by himself] [or, if so, the said A.B. has submitted himself for examination by a medical practitioner provided by the said CD. & Co., Limited, and has also been examined by a medical practitioner selected by himself], and a copy of the report of the said practitioner is [or copies of the reports of the said practitioners are] annexed to this application. The applicants request that an order may be made referring the matter to a medical referee for his certificate as to the condition of the said A.B. and his fitness for employment, specifying if necessary the kind of employ- ment for which he is fit [or for his certificate whether [or to what extent] the incapacity of the said A.B. is due to the accident] [or for his certificate as to the condition of the said A.B. and his fitness for employment, specifying if necessary the kind of emploT^nnent for which he is fit, and as to whether [or to what extent] the incapacity of the said A.B. is due to the accident]. Dated this day of (Signed) Applicant. [Or Applicant's Solicitor.] CD. & Co., Limited, by Secretary, [or Solicitors for CD. & Co., Limited.] To the Eegistrar. Form 49. Order of Reference, Schedule /., Paragraph 15. In the County Court of holden at [Heading as in Aijplication,'] On the application of A.B. of and CD. & Co., Limited, of (a copy of which is hereto annexed), I hereby appoint Mr. of , one of the medical referees appointed by the Secretary of State for the purposes of the Workmen's Compensation Act, 1906, to examine the said [name of ivorhnan^, and to give his certificate as to the condition of the said and his fitut^ss for employment, specifying if necessary the kind of employment for which he is fit [or his certificate whether [or to what extent] the incapacity of the said is due to the accident] [or his certi- ficate as to the condition of the said and his fitness for emj^loyment, specifying if necessary the kind of employment for which he is fit, and as to whether [or to what extent] the incapacity of the said is due to the accident]. Copies of the reports of the medical practitioners by whom the said has been examined are hereto annexed. The said , who is now at , has been directed to submit himself for examination by the referee. 790 STATUTORY LIABILITY OF EMPLOYERS. I am satisfied that the said is in a fit condition to travel for the purpose of being examined, and he has been directed to attend on the referee for examination at snch time and ])lace as may be fixed by the referee. [or The said does not appear to bo in a fit condition to travel for the purpose of being examined.] The referee is requested to forward his certificate to the Kcgistrar at the County Court Office situate at on or before the day of Dated tliis day of Eegistrar FOKM oO. Order on Injured Workman to snbinil hinim'lf for Exainhifdion hi/ Medical Referee. In the County Court of holdcn at [Heading as in Appiiadion.'] To A.B. : of [address and descriptio-n^. Take Notice, that I have appointed Mr. , of , one of the medical referees ai)i)<)inttMl by the Secretary of State for the purposes of the Workmen's Compensation Act, H»()G, to examine you in accordance with the application in tlie above-mentioned matter for a reference to a medical referee. You are hereby required to submit yourself for examinaticm by the referee [add, ivhere morkinan is in a Jit condition to travel, and to attend for that piu-pose at such time; and place as may be fixed by him]. Dated this day of Eegistrar. Form 51. Notice to Parties of (Jertificute of Medical Referee. In the County Court of holden at [Ileadinij as in Application.'] Take Notice, that 1 have received the certificate of the medie|il referee appointed in this matter, and that you may inspect the same during office hours at my office situate at , and may on request and at your own cost be furnished with or take a copy thereof. Dated this day of To Eegistrar. and 791 Form 52. Notice (if Application for Suspension of Right to Compensation or to take or prusinitf Proceedings in rc/ntion to Compensation, or of Right to Weekly Payments, under Schedide /., Ptragrujihi, Paragraph 14, or Paragraph 15, and Mule bb. \_Not to he printed, hit to he used as a Precedent.'] In the County Court of holden at In the matter of the \Yorkmen's Compensation Act, 1906. In the matter of a claim for compensation made by A.B. • of against CD. & Co., Limited, of [_0r, in/ierc an. arhiiration is pending. In the matter of an arbitration between A.B. of [address] [description'] Applicant, and CD. & Co., Limited, of [add.ress] [descriptio7i^ Respondents. ] \_0r, where application is made after weekly pjay me rd has been settled. In the matter of an agreement [or a decision or an award or a certifi- cate] recorded in the above-mentioned Court as to the weekly payment payable to A.B. of by CD. & Co., Limited, of .] Take Notice, that I intend to apply to the judge at on the day of at the hour of in the noon [on behalf of Messrs. C.D. ct Co., Limited, of, &c. ] for an order susjiending your right to compensation in the above-mentioned matter and to take or prose- cute any proceedings under the above-mentioned Act in relation to com- pensation [iir suspending your right to weekly payments in the above- mentioned matter], on the ground that you refuse to submit yourself to medical examination as required by me [or by the said C.D. & Co., Limited], in accordance with paragraph 4 [or paragraph 14] of the first schedule to the Act [or that you obstruct the medical examination required by me [or by the said C.D. & Co., Limited], in accordance with paragraph 4 [or paragraph 14] of the first schedule to the Act], [or on the ground that you refuse to submit yourself for examination by a medical referee as ordered under paragraph 15 of the first schedule to the Act, or that you obstruct the examination by a medical referee ordered under paragraph 15 of the first schedule to the Act], and for consequential directions, and for costs. Dated this day of To A.B., of (Signed) CD. & Co., Limited, and to Messrs. by Secretary, his Solicitors. [Or Solicitors for C.D. & Co., Limited.] ^92 STATUTORY LIABILITY OF EMPLOYERS. Form 53. Prcticipe for Pai/me)it into Court under Schedule I., PartKiniph o. [^Not to he ■printed, hut to he used as a Precedent.'] In the Countj^ Court of holden at In the mattoi- of tlio Workmen's Compensation Act, lOOfi, and In the matter of an Arbitration between A.B. of, &c. Applicant, and CD. & Co., Limited, of, &c. Eespondents. or [In the matter of an agreement between A.B. of, &c. and CD. & Co., Limited, of, &c. ] or [In the matter of a Certificate given in an action in \_st(ite Com'tl, Between A.B. of, &c. Pkiintiff, and CD. & Co., Limited, of, &c. Defendants] [Or as the case may he.] Takk Notice, that CD. & Co., Limited, of [or Messrs. solicitors for CD. & Co., Limited, of ] do pay into Coiu't [ivhen paid hi/ solicitors, add at the request and by the authority of the said CD. & Co., Limited, ], the sum of [state sum in letters'] , being the sum awarded [or agreed or directed] to be paid by the said CD. & Co., Limited, as compensation in the above-mentioned matter. Dated this day of (Signed) CD. & Co., Limited, by Secretary. [Or Solicitors for CD. & Co., Limited.] To the Registrar. Received the above-mentioned sum of Registrar. [Date.] workmen's compensation forms. 793 Form 53a. Prcecipe for Payment into Court under Schedule I., Paracjrojjh 5, luhere no valid Agreement can he come to. \_Not to he printed, hut to be used as a Precedent.^ In the County Court of holclen at No. of Matter. In the matter of the Workmen's Compensation Act, 1906, and In the matter of an injury by accident to A.B. , hite of , which resulted in the death of the said A.B. Take Notice, 1. That on the day of personal injury by accident arising out of and in the course of his emi^loyment was caused at [state jilace of accident^ to A.B. , late of deceased, a workman employed by [or by , a contractor with for the execution of work undertaken by them], and on the day of the death of the said A.B. re- sulted from the injury. 2. There is no dispute as to the liability of the said to pay compen- sation under the above-mentioned Act to the dependants of the said A.B. in respect of the injury caused to them by the death of the said A.B., or as to the amount payable as compensation, but no valid agreement can be come to in the matter by reason of the disability [or absence] of the dependants or some of them. 3. The said of [or Messrs. , solicitors for the said of ] do therefore pay into Court [when paid hy solicitors, add at the request of the said ] the sum of [state sum in letters'], being the amount payable by the said as compensation in the above-mentioned matter. 4. To the best of the knowledge and belief of the said the persons interested in the said sum as dependants of the said A.B. are [State depjendants, with their ages and relationship to deceased workman, and places of residence, so far as known.] Dated this day of (Signed) [or Solicitors for To the Eegistrar. Eeceived the above-mentioned sum of Registrar. [Date.] Form 53b. Notice hy Registrar of Payment into Court under Schedule I., Paragraph 5. In the County Cou.rt of holden at [Heading as in Praecipe for Payment into Court.] Take Notice, that the sum of has been paid into Court as compen- sation in the above-mentioned matter. Any person interested in the said sum may a^iply to the Court for an order for the investment and application of the said sum for the benefit of the persons entitled thereto in accordance with paragraph 5 of the first schedule to the Workmen's Compensation Act, 190G, and the rules of Court made under the said Act. Dated this day of Registrar. To Houi's of attendance, &c. '^■1 STATUTOKY LlAlilLlTY OF EMrLOYER.S. Form 53c. AppUcation for Investment or Application of Money paid into Court under Schedule I., Paragraph 5. \_Not to be printed, hut to he used as a Prectdent.'\ (1) Ajijdicatioii for [iiventine)d and Ajiplicalinn (f the Sum jiaid into Court. In the County Court of holdeu at [Heading as in Proicipe for Payment into Coiirt.'\ Take Notice, that I [name and address of applicant^ intend to apply to th(; judge at , on the day of , at the hour of in the noon, on behalf of myself and of ['Specify the ptrsims on tvhose hehiilfthc application is nutdc^, as dependants of the above-named A. B., for an order for the investment and a])])licati()n of the sum paid into Court in the above-mentioned matter, and for the allotment of the same between the dependants of the said A.Ji. To the best of my knowledge and belief the persons interested in the said sum as dependants of the said A.B. are [_State dependants, with their ages and relationship to deceased workman,, and places of residence.'] I intend to apply for an order for the investment and application of the said sum, and for the allotment of the same between the dei)endants of the said A.B. as follows, viz. : — [State how applicant uiishes the sum to he dealt luitli] or in such other manner as the Court in its discretion thinks tit for the benefit of the i^nsous entitled thereto under the above-mentioned Act, and for con- sequential directions. Dated this day of (Signed) To the Registrar and [to any other piarties interested, ivhere the appli- cation is made on hehalf of some only of the parties itdercsted']. (2) Application, for Investment and Application of the ^[nioiint (dltitted- to any Person. in the County Court of holden at [Heading as in. Pracipe for Paymrnt into Court.] Take Notice, that I [_name and address of applicant] intend to ajijily to the judge at on the day of at the hour of in the noon, on b(;half of myself [or of ] for an order for the invest- ment and application of the sum paid into Court in the above-mentioned matter and allotted to me [or to the said ]. I intend to apply for an order for the investment and application of the said s\un as follows, viz. : — [State hoiv applicant ivishes the sum to he dealt with] or in such other manner as the Court in its discretion thinks fit for my benefit [or for the benefit of the said ], and for conseciuential directicms. Dated this day of (Signed) To the Eegistrar. WORKMEN S COMPENSATION FORMS. 795 FoEM 54. Aiyplimtioh for Order for Payment into Court of Weekly Payment payahle to Person vnder Disability. Schedule I., Paragraph 7. \_Not to he printed, hut to he used as a Precedent.'] In the County Coui't of holden at [Heading as in Award, Memorandum or Certificate.] TakeNotice, that I [name and address of applicant'] intend to apply- to the judge at on the day of , at the hour of in the noon, for an order that the weekly payment payable in the above- mentioned matter to a person under legal disability [_or to me] be during his [or my] disability paid into Court, and for consequential directions. Dated this day of (Signed) To the Eegistrar and [to the parties iiderested]. Form 55. ApjpMcation for Variation of Order under Schedule. I., Paragraph 9. [Not to he printed, hut to he used as a Precedent.] [Heading as in Atvard, Memorandum or Certificate.] Take Notice, that I [name and address of applicant] intend to apply to the judge at a Court to be holden on the day of at the hour of in the noon, for an order that the order of the Court [or the award] made in the above-mentioned matter on the day of as to the apportionment of the sum paid as compensation among the dependants of A.B. deceased [or as to the manner in which the sum payable to a dependant of A.B. deceased, should be invested, applied or otherwise dealt with] may be varied by directing [here state variation claimed by applicant] and for consequential directions. And further take notice that the circumstances in which this aj^plication is made are [State particulars.] Dated this day of (Signed) Applicant. [Or Applicant's Solicitor.] To the Eegistrar, and to [all persons interested']. '06 STATUTORY LIABILITY OF EMPLOYERS. Form 56a. Application by Workman intending to cease to reside in the Uirited Kingdom for Reference to Medical Referee under Schedule I., Paragraph IS. \_Not to be printed, but to be used us a Pre.cedent.'\ In the County Court of holden at In the matter of the Workmen's Compensation Act, 1906, and In the matter of an agreement [_or a decision or an award or a certificate] recorded in the above-mentioned Court as to the weekly payment payable to A.B. of by CD. & Co., Limited, of Take Notice, that A.B. of , to whom under an agreement [or a decision or an award or a certificate] in the above-mentioned matter recorded in this Court on the day of a weekly payment of is payable by the above-mentioned C.I). & Co., Limited, as comjjensa- tion ifor personal injury caused to th(^ said A.B. by accidtmt arising out of and in the course of his employment, intends to cease to reside in the United Kingdom ; And that the said A.B. intends to apply to tlie registrar at , on the day of , at the hour of in the noon, for an order referring to a medical referee the question whether the incapacity of the said A.B. resulting from the injury is likely to be of a permanent nature. A report of a medical practitioner, setting out the nature of the incapacity of the said A.B. resulting from the injiu-y, is hereto annexed. Dated this day of (Signed) Applicant. [Or Applicant's Solicitor.] To the Registrar of the Com-t and to [tlie einployer'\. Form 57a. Order of Reference, Schedule I., Paragraph 18. In the County Court of holden at [Heading as in Application, Form 56a.] On the application of of (a copy of which is hereto annexed), I hereby appoint Mr. of , one of the medical referees appointed by the Secretary of State for the purposes of the Workmen's Conii)ensation Act, 1906, to examine the said [_na-me of tuorkman'] , and to give his certificate as to whether the incapacity of the said [_name of workman'] resulting from the injury is likely to be of a permanent nature. A copy [or copies] of the report [or reports] of the medical practitioner [or practitioners] by whom the said has been examined is [or are] hereto annexed . The said , who is now at , has been directed to submit himself for the examination by the referee. workmen's compensation forms. I am satisfied that the said is in a fit condition to travel for the purjiose of being examined, and he has been directed to attend on the referee for examination at such time and place as may be fixed by the referee. [or The said does not appear to be in a fit condition to travel for the purpose of being examined.] The referee is requested to forward his certificate to the registrar at the County Court Office situate at on or before the day of , specifying therein the nature of the incapacity of the said resulting from the injury, and whether such incapacity is likely to be of a permanent nature. Dated this day of Judge [or Registrar]. Form o8a. [To he printed on thick blue fool sea p. Ji Certifieate of Identity. [to be carefully preserved.] Notice.— This Certificate is no Security whatever for a Debt. No. of Certificate In the County Court of holden at [Heading as in Aivard, Memorandum, or Certificate.'] This is to certify that A.B. late of [address and description] is entitled to a weekly payment of from [name and address of employer] as compensation payabli3 to the said A.B. in respect of personal injury caused to him by accident arising out of and in the course of his employment, such weekly payment to continue during the total or partial incapacity of the said A.B. for work : And that the description of the said A.B. and his incapacity for work, as certified by the medical referee appointed in this matter, are as follows : — Age, Height, Hair, Eyes, Nature of incapacity, [Bescrihe nature of incapacity, and whether the same is total or partial, as in certificate of medical referee.] Dated this day of Registrar. 708 STATUTORY LIABILITY OF EMPLOYERS. Form 59. Notice to he given to Worhman intending to cease to reside in the United Kingdom. llleading us in Atvard, Mtmoravdnm, or Certificate.'\ Take Notice, that if you desire to obtain payment of the weekly payments payable to you under the award [m(nnoranduni or certificate] hereto annexed while you are residing out of the United Kingdom, you must, at intervals of three months from the date up to which such i)aymonts have been made, submit yourself to examination by a medical practitioner in the place where vou are residing, and produce to him the copy of the certiticato of the medical referee and the certificate of identity hereto annexed ; and you must obtain from such medical practitioner a certificate in the form hereto annexed that he has examined you, and that your incapacity resiilting from the injury specified in the certificate of the medical referee contmues : and such certificate must be verified by the medical practitioner by declaration in your presence before some such person as hereinafter mentioned. You must also attend before some such person as hereinafter mentioned, and make a declaration in the form hereto annexed that you are the same person as mentioned in the copy of the certificate of the medical referee and in the certificate of identity hereto annexed, and in the certificate of the medical practitioner by whom you have heen examined, producing to such person the copy and certificates above mentioned. You must then transmit to me, at my office, situate at the certificate of the medical practitioner by whom you have been examined, and your declaration, together with a request for transmission to you of the amount of the weekly payment due to you, specifying the place where and the manner in which the amount is to be transmitted, according to the form hereto annexed, which request must be signed in your own handwriting. The persons before whom a certificate may be verified or a declaration made are : — 1 . Any person having authority to administer an oath in the place in which you reside. 2. Any British ambassador, envoy, minister, charge d'affaires, or secretary of "embassy or legation, exercising his functions in any foreign place m which vou" reside, or any British consul-general, consul, vice-consul, acting- consul," pro-consul, or consular agent exercising his functions in any foreign place in which you reside. Dated this day of . -r, • . Kegistrar. To A.B. of \jiddress and descriptioji}. workmen's compensation foems. "^^9 Form 60. Form of Medical Certificate to he obtained hy Workman residing out of the United Kingdom. {^Heading as in Award, Memorandum, or Certificate.^ I \_name, address, and medical qualification of medical practitioner'] hereby certify that I have this day examined A.B. of , whom I conscientiously believe to be the same jjerson as A.B. of , described in the copy certificate of the medical referee in the above-mentioned matter, dated the day of , and in the certificate of identity dated the day of produced to me by the said A.B. ; and that in my opinion the incapacity of the said A.B. resulting from the injiiry described in the said certificate of the medical referee still continues. Dated this day of (Signature) Declared at this day of , in the presence of the said A.B. , the copy of the certificate of the medical referee and the certificate of identity above-mentioned being at the same time produced, Before me — \_Signature and description of person hefore whom the declaration is made,] FoKM 61. Declaration of Identitij by Workman residing out of the United Kingdom. \_ffeading as in Award, Memorandum, or Certificate.] I, A.B. of hereby declare that I am the same person as A.B. of described in the copy of the certificate of the medical referee in the above-mentioned matter, dated the daj' of , now produced by me, and in the certificate of identity, dated the day of , now produced by me, and the same person as A.B. of "described in the certificate of declared by the said in vaj presence on the day of , and now produced by me. (Signed) A.B. Declared at this day of , the certificates above-mentioned being at the same time produced, Before me — • [Signature and description of person hefore whom the declaration is made.] 800 STATUTORY LIABILITY OF EMPLOYERS. Form 62. Bequest fur Transinission of Amount of Weekly Payments hy Workman residing out of United Kingdom. ^Reading as in Award, Memorandum, or Certificate.} Sir, I herewith enclose medical certificate and affidavit of identity, and request that the amonnt of the weekly payments due to mo in the ahovo- montioned matter may bo transmitted to me at \_give full address"] [state how transmission to he made, as"] — by Post Office Order payable at \_name of Post Office] or by bankers' draft on the [name and address of Bank]. I am, 8ir, Your obedient servant, A.B. [To he signed hy the workman in his oion handler iting.] To the Eegistrar (;f the County Court of holden at [add address of Registrar s Offii'i:] Form 63. Noticr hy Registrar to Employer of Receipt of Medical Certificate and Declaration of Identity. [Heading as in Award, M<'inorandu.m, or Certificate.] Take Notice, that I have received proof of identity and of continuance of incapacitj' in the above-mentioned matter. And I have to request you to transmit the sum of , being the amount of the weekly payments payable to A.B. und(!r the above- mentioned award [memorandum or certificate] from [the date to which thnj were last paid ] to [13 weeks from, that date] to me, to bo by me remitted to the said A.B. Dated this day of Eegistrar. To [name and address of employer]. workmen's compensation forms. 801 Form 64. Notice of Application for Determination of Amount of Costs under Schedule II., Paragraph 14. \_Not to he printed, hut to he used as a Precedent.'] In the County Court of holden at IHeadiny as in Award or Memorandum. 1 Take Notice, that I intend to apply to the judge at on the day of at the hour of o'clock in the noon, to determine the amoimt of costs to be paid to me as solicitor [or agent] for you A.B. in the above-mentioned matter ; and for an order declaring that I am entitled to a lien for such amount on or to deduct such amount from the sum awarded as compensation to you the said A.B. in the above-mentioned matter, and for consequential directions. Dated this day of Applicant. To the Registrar of the Court, and to A.B. of Form 65. Execution on Award or Memorandum or Certificate. In the County Court of holden at \_Headintj as in Aivard, Memorandum, or Certificate.'] Whereas on the day of an award was made in the above- mentioned matter bj' the judge \_(>r by Mr. , an arbitrator appointed by the judge] whereby it was ordered \_state operative parts of award'] : [or Whereas on the day of a memorandum was recorded in this Court of an agreement [or a decision or an award] come to \_or given or made] in the above-mentioned matter, whereby it was agreed \_or ordered] [state operative parts of agreement, decision, or avmrd'] :] [or Whereas on the day of a memorandum was recorded in this Court of a certificate given by the County Court of holden at to the elfect that [state operative parts of certificate'] :] And whereas default has been made in payment of the sum of £ payable by the said into Court [or to the said A.B. ] according to the said award [or memorandum or certificate] ; M, 3 F 802 STATUTORY LIAIilLITY OF EMPLOYERS. Those are therefore to require and order you forthwith to make and havy bj- distress and sale of the goods and chattels of ^udme thr jKirti/ (ujniiist ■ii^Jiose (/oods ('.ircidinii /.s issued] wheresoever they may be found within the district of this (^ourt (except the wearinj^ ap]iarel and bedding of him or his famih', and the tools and implemeiits of his trade, if any, to the value of five pounds), the sum stated at the foot of this warrant, being the amount due midei- the said award \_or memorandum vr certificate], together with the costs of this execution ; and also to seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money of the said which may there be found, or such part or so much thereof as may be sufH(!ient tf) satisfy this oxeciition. and the costs of making and executing the same, and to pay what you shall have so levied to the Registrar of this Court, and to make return of what you have done under this warrant immediately upon the execution thereof. Given under the seal of the Court this day of By the Court, To the High Bailiff of the said Court, and others the Bailiffs thereof. 19 Registrar. Amoinit in payment whereof default has been made Poundage for issuing this wari'ant Total amount to be levied (with fees for execution of warrant, as indorsed hereon) Notice.— The goods and chattels are not to be sold until after the end of five days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the said Application was made to the Registrar for this warrant at past the hour of in the noon of the day of See Back. minutes 19 51 & 52 Vict, c. 43, s. 155. Ord. XXV., Rule 17. \_To be indorsed un every loarrant of execution.] Fees yor jhe Execution of tuis Warrant. The fees for keeping possession of the goods seized [including expenses of removal, storage of goods, and all other expenses] is sixpence in the POUND PER PAY NOT EXCEEDING SEVEN DAYS ON THE VALUE OF SUCH goods, to be fixed by appraisement in case of dispute, so that the total fee does not exceed 10s. per day although the value may exceed 20/., and, in addition, for feeding animals, the actual cost thereof. If the debtor pays the amount to be levied, as stated on the other side, within half an hour of the entry of the bailiff, he will not be required to pay to him any further sum. workmen's compensation forms. ^03 If possession is kept after the seventh day at the written request of both parties, the fees and cost of keepinj^ possession as above may be allowed for a reasonable further time in respect of such possession. If the goods are removed, the debtor will have to pay the appraisement fee as undermentioned. If the goods are sold, the following fees are chargeable for the appraise- ment and sale, and no others : — • For the appraisement, sixpence in the pound on the value of the goods appraised, over and above the stamp duty. For the sale, including advertisements, catalogues, sale and commission, and delivery of the goods, ONE shilling in the pound on the net PRODUCE OF the SALE. For advertising and giving publicity to any sale by auction, pursuant to section 145 of the Bankruptcy Act, 1883, in addition to the last- mentioned fee, the sum actually and necessarily paid. Where no sale takes place by reason of the execution being withdrawn, satisfied, or stopped, there may be allowed all charges actually and necessarily incurred for inventory, appraisement, cataloguing, lotting, and preparing for sale, not exceeding one shilling in the pound on the value of the goods seized, if such value does not exceed ten poimds, and eightpence in the POUND on any excess above ten pounds, the value to be fixed by appraise- ment in case of dispute, and in addition any sum actually and necessarily paid for advertising pursuant to section l-lo of the Bankruptcy Act, 1883. If the goods are removed, the bailiff is required to give the debtor a sufficient inventory of the goods so removed, and to give him notice of the time when and the i)lace where such goods will be sold, at least twenty-four hours before the time fixed for the sale. If the goods are sold, the bailiff is required to furnish the debtor, on request, with a detailed account in writing of the sale, and of the application of the proceeds thereof. \_This form, to he adapted to the circumstances of the case luhere execution is ordered to issue under Ride 66, paragraph {e),for costs.l FoEM 66. Judgment Summons on Award, Memorandum, or Certificate. In the County Court of holden at \_Heading as in Award, Memoraiidum, or Certificate.'] Whereas on the day of an award was made in the above- mentioned matter by the judge [or by Mr. , an arbitrator appointed by the judge], wherebj' it was ordered \_st((te up)erative parts of award] : \^or Whereas on the day of a memorandum was recorded in this Court of an agreement [or a decision or an award] come to [or given ur made] in the above-mentioned matter, whereby it was agreed [or ordered] [state o/jeratire parts of agreement, decision, or aivard] : 3f2 804 STATUTORY LIABILITY OF EMPLOYERS. [or Whereas on the day of a memorancliim was rocordod in this Court of a cortificato ^ivon by the County Court of hohlcn at to the effect that \_stute vjji'rative parts of ccrtijicate^ : And whereas default has been made in ])aynient of the snni of £ payable by you the above-named into Court [ar to the said A.l). ] according; to the said award [or memorandum ur certificate] : You the said are therefore hereby summoned to appear personally in this Court at [pfuce ivhere court lioldeti'] on the day of 19 , at the hour of in the noon, to be examined on oath by the Court touchinf^ the means you have or have had since the date of the award [or memorandum or certificate] to pay the said simi, in ])ayment of which you have made default ; and also to show cause why you should not be committed to i)rison for such default, or why a receiving order should not be made a<^ainst you pm'suant to sub-section 5 of section 103 of the Bankruptcy Act, iss;j. Dated this day of 19 Registrar. To issued]. \_iiame. and address of the jiarty against ivhom the summons is Amount in payment of which default has been made Costs of this summons £ .S'. d. Total sum due Note. — This form to he adapted to the circumstances of the case luhere a summons is issued under the County dourt Rules, Order XXV., Rule 27, against a person alleged to he a jjartner in or sole meniher of a firm, or to he carrying on business in any name other than his own; see Form, 184 i7i the Appenaix to the County Court Rules. If an order of commitment is made it should he according to Farm 189 or Form 191 /«, the said Appendix, such form being adapted to the case of default in payment of an amount due under an aiuard, memorandum, or certificate. WORKMEN S COMPENSATION FORMS. 805 FOKM 61. Eegister. The Workmen's Compensation Act, 1906. Register. No. of Matter. Title. Ill the matter of arbitration be- tween A.B., of, &c., Applicant, and CD. & Co., Limited, of, &c., Respon- dents. Date of Proceedino-s. July 11, 1907 July 20, 1907 July 24, 1907 July 29, 1907 July 29, 1907 Aug. 5, 1907 Aug-. 8, 1907 Aug. 15, 1907 Aug. 19, 1907 Aug. 23, 1907 Sept. 5, 1907 Oct. 16, 1907 Oct. 23, 1907 Nov. 6, 1907 Nov. 11, 1907 In the matter of i Oct. 7, 1907 an agreement betweeu A.B., of , and E.F. & Co., I Oct. 8, 1907 Limited, of, &C. j Nature. Request for arbitration filed, and copy sent to judge. Appointment of Mr. as arbitrator. Copy request sent to arbitrator. Day for arbiti'alion fixed. Notice of day fixed sent to applicant, and notice with copy request sent to respondents by registered post. Respondents' answer filed ; copies sent to arbitrator and applicant. Application by applicant for discovery ; order made. Respondents' affidavit filed. Five subpoenas issued on application of applicant's solicitor. Arbitration held ; Mr. appointed as medical referee to report ; further hearing adjourned. Report of medical referee received and forwarded to arbitrator ; notice given to the parties. Further hearing. Award made as follows [_entcr iitinutc of auard'\. Costs of applicant taxed at £ £ for costs paid into Court by respondents. £ for costs paid to applicant's solicitor. Memorandum of agreement as to com- pensation, signed by solicitor of A. B., left to be recorded. Notice and copy memorandum sent by post to E.F. & Co., Limited. 806 STATUTORY LIABILITY OF EMPLOYERS. No. of Matter. Title. Date of Proceedings. Oct. 10, 1907 Oct. 10, 1907 Oct. 15, 1907 Oct. 22, 1907 Oct. 24, 1907 Oct. 31, 1907 Nov. 18, 1907 Nature. Notice receivc'd from E.F. & Co., Limited, disputiug memorandum. Notice sent to A.B.'s solicitor, that memoiai)dum is disputed, and will not be recorded without consent in writing of E.F. & Co., Limited, or order of judge. Application on behalf of A.B. that memorandum be recorded. Application heard, and order made that memorandum be recorded with alterations. Memorandum recorded as follows [set out memorandum]. Costs of A.B. taxed and allowed - at £ Execution issued for costs. &c., &c., &o. Note. — Similar entries to be made as to all matters required to he recorded. We, William L. Selfe, William Cecil Smyly, Eobert Woodfall, Thomas C Granger, and H. Tindal Atkinson, being the five judges of the County Courts appointed for the making of Rules under section one hundred and sixty-four of the County Comets Act, 1888, having made the foregoing Rules of Court, pursuant to paragraph twelve of the Second Schedule to the Workmen's Com- pensation Act, I 906, do hereby certify the same under our hands, and submit them to the Lord Chancellor accordingly. Wm. L. SeJfe. JVUliam Cecil Smyly. R. Woodfall. T. C. Granger. H. Tindal Afla'n.so)!. The 1st of June, 1907, I allow these Rules, Lorehurn, C. workmen's compensation orders, etc. 807 COUNTY COURT, ENGLAND. Fees. Treasury Order, dated Ma\ '30, 1907, regulating Fees in County Courts. Ill pursuance of the powers given by the County Courts Act, 1888, and of all other powers enabling us in this behalf, We, the undersigned, being two of the Commissioners of His Majesty's Tieasury, whose names are hereunto subscribed, do hereby, with the consent of the Lord Chancellor, order that on and after the 1st day of July, 1907, the following alterations in the Treasury Order regulating fees in County Courts, dated the 30th day of December, 1903, shall have effect. Joseph A. Pease. J. Herbert Lewis. I approve of this Order. Lorehurn, C. Schedule A. Paragrai^h 4(3 is hereby annulled, and the following paragraph shall stand in lieu thereof. 46. — (a) No court fee shall be payable under this Schedule by any party Conf. Act. in respect of any proceedings by or against a workman under the Workmen's Sched. 2, Compensation Act, 1906, or the Workmen's Compensation Rules, 1907, in P^^' the County Court prior to the award. (b) On an application for the settlement of any matter by arbitration under the said Act and Rules, when such application is not a proceeding by or against a workman, plaint and hearing fees shall be payable as in an ordinary action, and the poundage shall be calculated as upon a claim for a sum of twenty pounds. (c) Where a notice of claim to contribution or indemnit}^ is filed under the said Act and Rules, a fee shall be paid on an award on such claim, or on the hearing of such claim, in like manner as on entering judgment on a default summons under paragraph 5, or the hearing of an action, as the case may be. (d) In proceedings under the said Act and Rules for the enforcement of an award, memorandum, or certificate, or an order for payment of costs, the same fees shall be taken as on the like proceedings for the enforcement of a 808 STATUTORY LIABILITY OF HMPLOYEKS. judgment for the like amount given in an action, loss, in any case in whicli fees for the issue, service, or execution of any process are prescribed by Schedule B, the amount of such fees. (e) On interpleader proceedings arising out of an execution issued for the enforcement of an award, memorandum, or certificate, or an order for pay- ment of costs under the said Act and Rules, fees shall be paid in like manner as on interpleader proceedings arising out of an execution issued in an action. Schedule B.— Part I. Ocneral. Begistrar's Fees. The words "The Workmen's Compensation Act, 1906, and the AYorkmen's Compensation Rules, 1907," shall be substituted for the words "The Work- men's Compensation Acts, 1897 and 1900, or the Workmen's Compensation Rules, 1S98 to 1900," in paragraphs 8 and 9. Paragraph 26 is hereby annulled, and the following paragraph shall stand in lieu thereof. 26. On proceedings luider tho Workmen's (compensation Act, 1906, and the Workmen's Compensation Rules, 1907. (N.B.— These fees, with the exception of Nos. 6 and 7, are not to he taken in respect of prvceedin(/s by or against a workman prior to the award.) £ s. d. 1 . On tho filing of a special case under Rule 32 5 2. On an order for the detention of a ship, an order of release, a bail bond, or an affidavit of justification, under the Workmen's Compensation Act, 1906, or the Shipowners' Negligence (Remedies) Act, 1905 7 6 3. On an Order adding a respondent under Rule 39 (4) 4 4. On an application to rectify the register or to remove a record from the register under Schedule 2, par. 9(c) or (e), and Rule 48 or Rule 50 4 5. For preparing a Certificate under section 1, sub-section 4, andllulo51 5 6. On an application for a reference to a medical referee under Schedule 1 , paragraph 15, the fee prescribed by Rule 54 (9). 7. On a reference to a Medical Referee in accordance with regu- lations made by the Secretary of State pursuant to section 8 (1) (f) 10 8. On an application for the suspension of the right to comp(!n- sation or to tak thinks fit, on such terms as to remuneration or otherwise, as he may with the sanction of the Treasury determine. workmen's compensation orders, etc. 815 19. Ill cases where a claim is made under regulation 18 (ii.) in respect of an examination of a workman, the medical referee, in submitting his ([uar- terly statement under regulation 17, shall certify the distance of the place where the examination was made from his residence or other prescribed centre. 20. The registrar of a county court shall keep a record, in the form pre- Form 17. scribed in the schedule, of all references made by him under these regulations, and shall send the same to the Secretary of State at the end of each quarter. 21. These regulations shall come into force on the 1st day of July, 1907, and shall apply to England and Wales. H. J. GladHtoiw, One of His Majesty's Principal Secretaries of State. Joaepli A. Pease^ Cecil Norton, Two of the Lords Commissioners of His Majesty's Treasury. •21st Juue, 1907. SCHEDULE. FOEM 1. Particulars to be obtained by Certifyinij Surgeon upon ajijyfication by Workman for Certificate of Disablement. ( for Certificate of . 1 . Name and address of workman . . . 2. Disease in respect of which certifi- ( cate is apjihed for ) 3. Symptoms complained of 4. Employment to the nature of i which disease is attributed j 5. Name and place of business of . employer who last employed workman in such employment... ; 6. \_Whert appLicatiun is not made by workman in person^ whether i workman is able to travel for i purposes of examination ' 816 STATUTORY LIAHILITY OF KMI'LOYERS. Form 2. Notice to Workman of time and place appointed for Iris Examination by Suryeon. Workmeii^s Compensation Act, 1906. I horeby give yoii notice, with reference to your application for a certifi- cate of (lisablomeut under section 8, sub-section (1), of the above-named Act, that I propose to examine you at on the day of at o'clock, and that you are required to submit yourself for examination accordingly. To [the Workman}. (Signed) Form 3. Certificate of Disahlement. Workmen's Compensation Act, 1906. 1(a), as certifying surgeon appointed under the Factory and Workshop Act, 1901, for the district of [or as a medical practitioner appointed by the Secretary of State to have the powers and duties of a certifying surgeon for the purposes of section 8 of the Act], hereby certify that having per- sonally examined (//) on the day of I am satisfied that (c) is suffering from ((/) being (me of the diseases to which the Workmen's Compensation Act applies, and is thereby disabled from earning full wages at the work at which (c) has been employed ; and I * certify that the disablement commenced on the day of 1 . Full name and addi'ess of workman 2. Process in which workman states . he was employed at or imnie- ( diately before the date of dis- i ablement / 3. Name and place of business of em- \ ployer stated by workman to I have last employed him in pro- I cess above-mentioned } 4. Leading symptoms of disease Dated this day of (Signed) (a) Strike out portion of description inapplicable. (b) Name of workman. (c) "He "or "she." i . • j (rf) Name disease Hccording to the terms iu which it is described m the third schedule to the Act or Order of the Sccretiiry of State adding it to the scliedule. * If the surgeon is unable to certify a date on which the disablement com- menced, he should strike out this part of the certificate. In that case the disable- ment will be deemed to have commenced on the date on which this certificate l-j given. See section H f4) of the Act. workmen's compensation orders, etc. 817 Form 4. Certificate {supplementary to a Certificate of DitiaUernent) to he given hy Certifying Surgeon in circumstances mentioned in Regulation 5. 1. When the certificate is included in the certificate of disablement, it should run as follows : — But whereas the said workman appears to have been employed at or imme- diatelj' before the date of disablement in {a) being a process (fe) the second column of the third schedule to the Act, and the disease con- tracted by him, viz. (c) is a disease which {d) is set opposite the above-mentioned process, I hereby certify that in my opinion the said disease is not due to the nature of such employment. Dated this day of (Signed) 2, When the certificate is given separately on a subsequent application of the employer, it shoidd be in the folloioing form : — • Workmen's Compensation Act, 1906. Wliereas I (e), the certifying surgeon appointed under the Factory and Workshop Act, 1901, for the district of [or as a medical practitioner appointed by the Secretary of State to have the powers and duties of a cer- tifying surgeon, for the purposes of section 8 of the above-named Act], on the day of certified that (./ ) was suffering from (c), being a disease to which the Workmen's Compensation Act api^lies, and was thereby disabled from earning full wages at the work at which he was employed ; and whereas the said (/) appears to have been employed at or immediately before the date of disablement in {a) being a process {h) the second column of the third schedule to the Act, and the disease above- named is a disease which {d) is set opposite the above-mentioned process, I hereby certify that, in my opinion, the said disease was not due to the nature of such employment. Dated this day of (Signed) [a) Name process. [h) " Mentioned in " or " added by an Order of the Secretary of St;ite to." (f ) Name disease. {d) •' In the first column of that schedule " or " under the provisions of the said Order." (e) Strike out portion of description inapplicable. {f) Name of workman. W. ^Q B18 STATUTORY LIABILITY OF EMPLOYERS. Form 5. Certificate of Certifying Surgeon refusing to give Certificate of Disablement. Workmen^ s Compensation Act, 1906. I, (rt) as cevtifyin<;- surfi;con appointed under the Factory and Workshop Act, 1901, for the district of [or as a medical ])ractitioner apjiointed by the Secretary of .State to have the powers and duties of a certifying surj^eon for the purposes of section 8 of the; above Act], liereby certify tliat having personally examined (i) who has applied for a Certilicate of Disablemeut in respect of (c) being a disease to which the Workmen's Comi)ensation Act applies, 1 am not satisti(>d that (d) is suffering from the said disease so as to be disabled from earning full wages at the work at which ('/) has been employed. 1. Full name and address of work- ) man i 2. Employment to natui'e of which \ disease complained of was attri- ,■ buted ) 3. Name and place of business of ^ employer stated by workman to ( have last employed him in such ( ^ employment J Dated this day of (Signed) (a) Strike out portiou of description inapplicable. {b) Name workman. (c) Describe disease. {d) "He" or "she." Form 6. Certificate of Suspension hy Certifying or Appointed Surgeon. Worlcmen^s Compensation Act, 1906. I, the (a) surgeon for (ft) hereby certify that after personally examining (c) , I have on the day of in pursuance of the(fZ) made under the Factory and Workshop Act, 1901, suspended the said (c) from {t-) usual employment on account of (e) having contracted (/) being a disease to which the Workmen's Com- pensation Act apphes. 1. Full name and address of woi'k- ) man j 2. Employment from which work- man is suspended 3. Name and place of business of / employer ) 4. Leading symptoms of disease Dated this day of (Signed) (o) " Certifyiuji- " or " appointed." \b) Name works at which workman is employed. [c) Name workman. [d) Name the special rules or regulations governing the employment, [e) "His" or "her." (/) Describe disease. workmen's compensation orders, etc. 819 Form 7. Certificate to be yiven hi/ Surgeou in. cases of suspension in circumstances mentioned in liegu/ation 5. 1. IV/teii the certificate is included in a certificate of suspension, it should run as follows : — But whereas the said workman appears to have been employed at or imme- diately before the date of suspension in {a) being a i)rocess(/^) the second column of the third schedule to the Act, and the disease contracted by him, viz. (c) is a disease which ((/) is set opposite the above- mentioned process, I hereby certify that in my opinion the said disease is not due to the nature of such employment. Dated this day of (Signed) («) Name process. {l>) " Mentioned in " or "added by au OiJer of the Secretary of State to." (c) Name disease. {d} " In the first column uf that schedule " or "under the provisions of the said Order." 2. When the certificate is f/iven separately on an application by the employer, it should be in the following form : — Workmen's Oompensation Act, 1906. Whereas I, the (a) surgeon for {b) on the day of in pursuance of the (c) made under the Factory and Workshop Act, 1901, suspended {d) from (e) usual employment on account of (e) having contracted (/) being a disease to which the Work- men's Compensation Act applies, and whereas the said (d) appears to have been employed at or immediately before the date of suspension in (g) being a process (/() the second column of the third schedule to the Act, and the disease above named is a disease which (/) is set opposite the above-mentioned process, I hereby certify that in my opinion the said disease was not due to the natui'e of such employment. Dated this day of (Signed) («) "Certifying" or "appointed." (h) Name works at which workman was employed. ((') Name special rules or reg'ulations g-overning the employment. (d) Name of workman. (e) "His" or "her." (/) Describe disease. {(/) Name process. (//) "Mentioned in " or " added by an Order of the Secretary of State to." (i) " In the fir.st column of that schedule " or " under the provisions of the said Order," 3g2 820 STATUTORY TJABTLITY OF EMPLOYERS. Form 8. Certificate hy Certi filing or Appointed Surgeon of Refusal to suspend. Workmeji's Compensation Act, 1906. I, the (a) surgoon for [h) hereby certify that (r) having applied to me to be suspended from his usual employment in pursiiance of('/) made under the Factorj- and Workshoj? Act, 1901, on account of (f ) having C(mtractcd (/) being a disease to which the AVork- men's Compensation Act applies, I have after personally examining the said (c) refused to suspend (//). 1. Full name and address of work- | man ) 2. Name and place of business of ( employer ) 3. Grounds for refusal to suspend Dated this day of (Signed) {a) "Certifying" or "appointed." {b) Name works at which workman is employed. ((?) Name workmau. (rf) Name the code of special rules or regulations governing the employment. [e) "His" or " her." (/) Describe disease. [g) " Him" or " her." Form 9. Application hy Employer for Reference to Medical Referee. In the County Coiirt of holden at In the matter of the Workmen's Compensation Act, 1906, and In the matter of a Certificate of Disablement [_or Suspension] granted in the case of [_nrhman'] against the refusal of Mr. \_naine of suryeon] to susjjend him on the day of Dated this daj' of (Signed) Medical Referee. To [the Reijistrar], and to [the Employer], and to [the Workman]. workmen's compensation orders, etc. 825 Form 16. Medical Referee^s Statement of Fees in renpect of Rtferenci-s under Section 8 of the Worhmen^s Compensation Act, 1906. s Names of Parties. Date on which Beference received. Reg-istrar from whom received. Date and Place of Exami- nation. Date and Terms of Decision. Amount of Fees under each of the headings in Reg:ulation IS. Iz; (i-) (ii.) (iii.) 1. 2. £ s. d. £ s. d. £ «. d. Total I hereby certify that I examined the -workman on , at , which is distant miles from my residence or prescribed centre. (Signed) Medical Referee. Form 17. Record uf References to be kept by Registrar. For quarter ended. Number of Reference. Names of Parties. Action of Surgeon by which Applicant is aggrieved. Name of Surgeon. Nature of Disease. Date on which Reference made. Whether Workman directed to attend on Medical Referee or not. Name of Medical Referee. 826 STATUTOKV LIABII.ITV OF KMrLOVEUS. MASTER AND SERVANT. Work))ic)i\ CoiDjx'iifiation Act, 1906. Regulaiions, dat?:i) June 24, 1907, made by the Secretary of State and the Treasury as to thk Duties and Remuner- AfTON OF Medical Referees in England and Wai,es UNDER THE I'ROVISIONS OF THE FlRST AND SeCOND SCHEDULES TO THE Workmen's Oomtensation Act, 1906. I, the Riglit llonoiirable Herbert John Gladstone, one of His Majesty's Principal Secretaries of State, and We, the Lords Commissioners of His Majesty's Treasury, in pursuance of the powers respectively conferred on us by the Workmen's Com- pensation Act, 1906, hereby make the following regulations: — ['art I. — Di'Jinitions and (Uneral Regulations. 1. In these regulations — (i) " Medical Eeferee " means a medical jiractitioner appointed by the Secretary of State to act as medical referee for the purposes of the Workmen's Compensation Act, 19()(). (ii) " Reference " means — (a) in regulations in Part II., the appointment of a medical referee by the registrar of a countj^ court, to give a certificate, in accordance -with the provisions of pai-agi-aph (15) of the first schedule to the Workmen's Compensation Act, 1906, as to the condition of the workman and his fitness for employment or as to whether or to what extent the incapacity of the workman is due to the accident. (b) in. regulations in Part III., the ap])ointiiient of a medical referee bv the registrar of a county court to give a certificate, in accordance with the provisions of paragraph (18) of the first schedule to the Workmen's Compensation Act, 1900, as to whether the incapacity resulting from the injiuy is likely to be of a pennanent nature. (c) in regulations in Part V., the appointment (jf a medical referee by a committee, arbitrator or judge to report on any matter material to any question arising in an arbitration under the Work- men's Compensation Act, 1906. workmen's compensation orders, etc. 827 (iii) " Committee " means a committee representative of an employer and his workman, with power to settle matters under the "Workmen's Compensation Act, 1900, in the case of the employer and workmen. (iv) " Agi-eed Arbitrator" means a single arbitrator agreed on by the l)arties to settle any matter which under the Workmen's Compen- sation Act, 1900, is to be settled by arbitration. (v) " Appointed Arbitrator " means a single arbitrator appointed by the judge. (vi) " Judge" means County Court Judge. (vii) The words " district in which the case arises " mean the county court district in which all the parties concerned reside, or, if they reside in different districts, the district prescribed by rules of Court, subject to any transfer made under those rules. 2. In the case of any reference under these regulations, the medical referee, in the absence of special circumstances, shall be one of those appointed by the Secretary of State for the county court circuit which includes the district in which the case arises, and shall, if the cii-cuit has been sub-divided, and medical referees have been ajjpointed for the sub- divisions, be one appointed for the sub-division which comprises the afore- said district. Provided that, where there has been a previous reference in any case, any subsequent reference in the same case shall, if possible, be made to the same referee and be accoinj^anied by the previous report or certificate, or copy thereof, of the medical referee. 3. The medical referee shall not accept any reference under these regula- tions unless signed or countersigned by the registrar of a county court and sealed with the seal of the county court. 4. The medical referee shall send to the Home Office at the end of each S"^™'',''"' '^' quarter statements, in the forms prescribed in the schedule to these regula- ' tions, of the fees due to him for the cj^uarter under these regulations. 5. In cases where a claim is made under the regulations in respect of travelling expenses, the medical referee, in submitting his quarterly state- ments under regulation 4, shall certify the distance of the place to which he was required to travel from his residence or other prescribed centre. 6. In cases involving special difficulty the medical referee may apply to the Secretary of State for special expert assistance which may be granted by the Secretary of State, if he thinks fit, on such terms as to remuneration or otherwise as he may with the sanction of the Treasury determine. 7. The registrar of every county court shall keep a record, in the form Form M. prescribed in the schedule, of all references made under these regulations, and of all cases in which a medical referee is summoned to sit as assessor, and shall send a copy thereof to the Secretary of State at the end of each quarter. 8. These regulations shall come into force on the 1st day of July, 1907, and shall apply to England and AVales. 828 STATITOKV LIAniLITV OF KMI'LOVKKS. forms A. andB. Form C. Fart II.—Reyuhitious as to Rvftrences under Schedule I., paraState, in addition to the above fees — bs. for each mile beyond two, and up to ten, miles distant from such residence or centre, and thereafter Is. for each mile distant therefrom. Form D. Fonn E. Part III. — Itcijiilalions as to References under Hchednle I., jxiraijraph (18). 14. The medical referee shall, on receipt of a reference duly signed and sealed, fix a time and place for the examination of the workman, and shall send notice accordingly to the workman. 15. Before giving the certificate required by the reference the medical referee shall make a personal examination of the workman. 16. The certificate given by the medical referee shall be according to the form pi-escribed in the schedide to these regulations. 17. The medical referee shall forward his certificate to the registrar from whom he received the reference. 18. The fee to be paid to a medical referee in respect of a reference (to include all the duties performed in connection therewith) under this part of these regulations shall be one guinea. Part IV. — Regulation as to Remuneration of Medical Referee for sitting as Assessor under Schedule II., paragrupJi. (5). 19. Where a medical referee attends on the summons of tlie judge for the pui'pose of sitting with the judge as an assessor, as provided for in para- graph (5) of the second schedule to the Workmen's Compensation Act, 1906, he shall be entitled for such attendance (to include his services as assessor) workmen's compp:ns.\tion orders, etc. 829 to a foe of 3 guineas, and where in order so to attend on the judge, he is compelled to travel to a place distant more than two miles from his residence or such other centre as may be prescribed by the Secretary of State, he shall be entitled, in addition to the above foe, to 5.s. for each mile beyond two, and up to ten, miles distant from such residence or centre, and thereafter to Is. for each mile distant therefrom. Part V. — Regulations as to References under Srheilnle IT., jiarac/raph (15). Conditions of Reference. 20. Before making any reference, the committee, arbitrator, or judge shall be satisfied, after hearing all medical evidence tendered by either side, that such evidence is either conflicting or insufficient on some matter which seems material to a question arising in the arbitration, and that it is desirable to obtain a report from a medical referee on such matter. Worn) and Modi' if Beferevc'. 21. Every reference shall be made in writing and shall state the matter on which the report of the medical referee is required, and the question arising in the arbitration to which such matter seems to be material. Such refer- ence shall be in accordance with the form jarescribed in the schedule to these Form F. regulations, or as near thereto as may be. The reference shall be accompanied by a general statement of the medical evidence given on behalf of the parties ; and if such evidence has been given before a committee or an agreed arbitrator, each medical witness shall sign the statement of his evidence, and may add any necessary explanation or correction. 22. On making the reference to the medical referee, the committee, arbitrator or judge shall make an order in the form prescribed in the Form Gr. schedule, directing the injured workman to submit himself for examination by the medical referee. Before making such order they shall inquire whether he is in a fit condition to travel for the purpose of examination, and if satisfied that he is in a fit condition, they shall by the same order direct him to attend at such time and place as the referee may fix. It shall be the duty of the injured workman to obey any such order. If the committee, arbitrator or judge is satisfied that the workman is not in a fit condition to travel, they shall so state in the reference. 23. The reference shall be signed, if made by a committee, by the chair- man and secretary of the committee ; if made by an agreed arbitrator, by the arbitrator ; if made by a judge or an appointed arbitrator, by the judge or arbitrator, or by the registrar of the county court in which the arbitration is pending. 24. A committee or an agreed arbitrator, making a reference, shall, without naming a medical referee, address the reference in general terms to " one of the medical referees ajipointed by the Secretary of State for the purposes of the Workmen's Compensation Act, 1906," and shall forward it to the registrar of the county court of the district in which the case arises. 830 STATUTOKY LIAIilLII V OF KMPLOYKKS. Duties of Registrar. 25, — (1) In the case of a reference by a committee or agi-eecl arbitrator, the registrar on receiving the reference — (a) Shall see that the reference is in accordance with these regulations, and if it is not, shall return it for amenchuent ; (b) Shall insert the name of the moilical referee proper to be appointed ; (c) Shall, when the reference is in accordance with these regulations, countersign and seal it, and forward it forthwith to the medical referee. (2) In the case of a reference by a judge or an appointed arbitrator, the registrar of the court in which the arbitration is pending shall sign (or countersign) and seal it, and forward it forthwith to the medical referee, 26. The registrar, on receiA-ing a report from a medical referee under Regulation 2IS, shall forthwith file a copy at the court and transmit the report to the committee, arbitrator or judge by whom the reference was made. If the committee, arbitrator, or judge shall direct that the parties be at liberty to inspect the report, the registrar shall on receiving notice of such direction pennit such inspection to be made during office hours, and shall on the application and at the cost of any party furnish him with a copy of the report or allow him to take a copy thereof. Report of Medical Referee. Furm n 2"^- ^^^ medical referee shall, on reccnpt of a reference duly signed and sealed, appoint a time and a place for the examination of the workman, and shall send him notice accordingly. 28. The medical referee shall give his report in writing, and shall forward it to the registrar from whom he received the reference. 29. The committee, arbitrator or judge may, by request signed and forwarded in the same manner as the reference, remit the report to the medical referee for a further statement on any matter not covered by the original reference. Fees. 30. The following shall be the scale of fees to be paid to the medical referees in respect of references under this part of the regulations : — (i) For a first reference, to include examination of the injured workman and written report 2 guineas. (ii) For a further statement under regulation 29 on any matter not covered by the original reference 1 guinea. (iii) For a second or subsequent reference to the same referee in a further arbitration on the same case, to include examination, if necessary, and written report 1 guinea, ETC. 831 (iv) Where in order to examine the injured workman the medical referee is compelled to travel to a place distant more than two miles from his residence or sucli other centre as may be prescribed by the Secretary of State, in addition to the above fees — o.s. for each mile beyond two, and up to ten, miles distant from snch residence; or centre, and thereafter Is. for each mile distant therefrom. H. J. Gladstone, One of His Majesty's Principul Secretaries of State. Joseph A. Pease, J. H. Wkitley, Two of tlic Lords Commissioners of His Majesty's Treasury. 24th June, 1907. SCHEDULE. Form A. Notice by Medical Referee to Employer or Solicitor signing the application on Employer''s behalf [Schedule I. (15)). Workmen'' s Compensation Act, 1906. To I hereby give you notice that in accordance with the Reference made to me by the Registrar of the County Court of holden at , under Schedule I., paragraph (15), of the above-named Act, in the case of \_naine and address of ivorkinan'] I propose to examine the said at on the day of at o'clock. Any statements made or submitted by you [or, if notice is addressed to the solicitor, by the employer] will be considered. Dated this day of (Signed) Medical Referee. Form B. Notice by Medical Referee to Workman or Solicitor signing the application on Workman's behalf (^Schedule I. (15)). Workmen's Compensation Act, 1906. named Act, I propose to examine you [or the said ] at day of at o'clock. 832 STATUTORY LIABILITY OF EMPLOYERS. And you aro required to submit yourself [o?- the said is required to submit himself] for examination accordin<>l}\ Any statements made or submitted by you lor, if notice is addressed td the solicitor, by the workman] will be considered. Dated this day of (Signed) Medical Referee. Form C. dertifirate of Medical Referee as to condition of Workman and fitness for employ meid, or as to ivhether or to luhat extevt inrajiarity of WorJcDiun is due to the accident {Schedule I. (15)). Workmen^ s Compensation Act, 1906. In accordance with the Reference made to me by the Registrar of the County CoTU't of holden at upon the application of \_names and addresses of parties^ I have on the day of examined the said [name of workman^ and I hereby certify as follows : — 1. The said is [tlescrihe state of health^ and his condition is such that he is [_statf whether wurlman is fit for his ordinary or other work, s})tcifyi>ig where necessary the kind of work, or whi-ther he is unfit for tvork (f any kind']. 2. The incapacity of the said is \_state whether or to what extent the incapacity is due to the accident [or, in cases coming ivithin section S of the Act, to the disease)."] Note. — Either parayruph 1 or paragr'(jdi 2 to he filled up, or both to he filled up, according to the terms of the Reference. Dated this day of (Signed) Medical Referee. Form D. Notice hy Medic(d Referee to Workman [Schedule I. (LS) ). ]Vork7nen^s (Jompensation Act, 1906. To I hereby give you notice that in accordance with the Reference made to me in your case; by the Registrar of the County Court of holden at under Schedule 1., paragraph (18), of the above-named Act, I propose to examine you at on the day of at o'clock, and you arc; ro(iuircd to submit yoiirself for examination accordingly. Dated this day of (Signed) Medical Referee. workmen's compensation orders, F/rc. 833 Form E. Oertificate of Medical Rcfcri^v {Sclicdiile I. (18) ). Worhmcn^ii Comjjensation Act, li)OG. In accordance with tho Eeference made to mo by the Eegistrar of the County Court of lioldon at under Schedule I., paraj^raph (18), of the above-named Act, I have on the daj^ of examined of \_name and address of inorkinan'], and I hereby cortif j' that his incapacity is [or is not] likely to be of a permanent nature. Dated this day of (Signed) Medical Referee. As the case may be FOEM F. Reference to a Medical Refree {^Hcliednle II. (15) ). In the matter of the Workmen's Compensation Act, 1906, and In the matter of an Arbitration between — A.B. A ddress Description Aj^plicant, and CD. Address Description Eespondent. (a) We, a committee representative of and his work- men, and empowered to arbitrate in the matter arising under the Workmen's Compensation Act, between A.B. and CD. ; (b) I, , an arbitrator agreed upon by A.B. and CD. to arbitrate in the matter arising between them under the Workmen's Comjjensation Act, 1906 ; (c) I, , Judge of County Courts; (d) I, , arbitrator appointed by a Judge of County Courts, having heard the evidence tendered by both parties, hereby certify that in our [or my] opinion the medical evidence given before us [or me] is con- flicting [(»■ insufficient] on a matter which seems to us [or me] to be material to a question arising in the above-mentioned arbiti'ation, and that it is desirable to obtain a report from a medical referee on such matter, as follows : — (a) On the day of personal injury was [or is alleged to have been] caused to [insert name of injured ivorkmaul by accident arising out of and in the course of his employment, under the following circumstances : — [Here state the facts of the accident as ascertained from the evidence.~\ Or, in a case of industrial disease to which the Act apjjlies — (a) On the day of the said [insert name of injured workmanl was, under section 8 of the above-named Act, certified to bo disabled by, or suspended from his usual employment on account of his having contracted, a disease to which the said section applies, namely, [name disease']. (b) The matter on which we are [or I am] satisfied that it is desirable to obtain a report is — (c) Sixch matter seems to be material to the following question arising in the arbitration, viz. : — We [or I] therefore appoint [the name must, if the reference is made hi/ a committee or agreed arhiti'utor, be left in blank to be inserted hi/ the Heyistrar] M. 3 H 834 STATUTORY L1AI;I1-ITV OF EMPLOYERS. one of the medical referees appointed by the Secretary of State for the pm-poses of the Workmen's Compensation Act, IflOG, to examine the said on the mutter specified above;, and to rejiort to ns [or mo]. A statement of the mecbcal evidence given before us [o?- mo] is appended. Wo are [or I am] satisfied that the said who is now at , is in a fit condition to travel fur the purpose of being examined, and he has been directed to attend on the referee for examination at such time and place as shall be fixed by tlie referee [or dot;s not aj)pear to be in a fit conclition to travel for the purjmso of being examined]. The referee is requested to forward his report to— The Eegistrar, County Court Office, on or before the day of Dated this day of (Signed) [Fur sigiiatun' of judge or arhitrator.'] or On behalf of the Committee Chairman Signature of Registrar and Seal of Court. r. J \ of Committee. Secretary ) • A previous reference was made to a medical referee in this case on the ,19 , and a copy of the report then given is attached. FoEM G. Order on injured Workman to submit himself for examination hy Medical Referee. [Title as in Reference.'] rpQ Address. Qf Description. Take Notice— That the Committee [or arbitrator, or j udge] have [or has] appomted one of the misdical referees under the Workmen's Compensation Act, 1906, to examine you for the purposes of the; above-mentioned arbitra- tion, and to report to them [or him]. You are hereby required to submit yourself for examination by such referee, and to attend for that purpose at such time and place as may be fixed by him [A'^r»7>e out from "and to attend" ivhen injured workman does not ajjpear to be in a jit condition to travel^. Dated this day of [To be signed in the same manner as Reference.'] FOKM H. Notice hy Medical Referee to injured Workman {Schedule II. (15) ). Workmen's Compensation Act, 19()G. To I hereby give you notice that I have been appointed to examine and report on your case under Schedule II. paragraph (15), of the above-named Act, and that I propose to make such examination at on the day of at o'clock. (Signed) Medical Referee, workmen's compensation orders, etc. 835 Form I. Medical Referee^ s Statement of Fees in respect of References under Sc/iedule I. (15). i i Date on which Reference re- ceived. O ?S pi CM o Sa -d.a 11 3 m . Q Whether Certifi- cate as to con- dition of work- man or as to cause of inca- pacity or both. Amount of the fees undoi' each of the headings in Regulation 1.3. a ?" (i.) (ii.) fiii.) £ £ s. d. £ s. d. £ s. d. £ s. Q Registrar from ■whom re- ceived. Date and Place of Examin i- tion. Amount of Fees under each of the licadings in Regulatiim 30. Payments under Rpgulition 6. ^ (i.) (ii.) (iii.) (iv.) £ £ s. d. £. s. d. 1 1 £ s. d. £ «. d. £ s. d. t Total I hereby certify that I exuiniiuHl the above-mentioned [name of workman'] on at which is distant miles from my residence or prescribed centre. * (Signed) * Endorsement to be made on back of statement. WORKMEN S COMPENSATION OKDERS, ETC. Form M. Record of References, &c. to he kept hij Registrar. County Court Circuit . District . Name of Registrar For quarter ended Provision in the Act Date on under Whether Date and which which Re- workman number of Number Names Work- Reference ference is directed to Medical previous of Refer- of man's Em- forwarded made, and attend on Ref erf e Reference ence. Parties. plojTnent. to if under Medical appointed. m same Medical Sched. II. Referee, case, if Referee. (15), by whom made.* or not. any. (1-) (2.) (3.) (4.) (5.) (6.) (7.) (8.) * Here say whether committee, agreed arbitrator, County Court judge, or appointed arbitrator. NoTE.^In cases where there is no Reference, but the Medical Referee is summoned to sit as assessor, the Registrar should write a note to that effect across colum.ns 4, 5, and 6. S38 STATT'TOKV LIABILITY OF KMPLOYI-RS. MASTER AND SERVANT. IForkmen's Compcnmtion Schemes. Regulations, dated July 1, 1007, made hy the Chief Registrar of Friendly Societies under the Workmen's Compensation Act, 1906. In pursuance of the powers vested in me by the above-mentioned statute, I, James Duncan Stuart Sim, (^liief Reg'istrar of Friendly Societies, hereby make the following Regulations : — 1. I'Aery iipplication for certificate to a scheme under section 3 of the Workmen's Compensation Act, 190(5 (in these regulations termed "the Act "), shall be in Form A annexed to these regulations, and shall be accompanied by the documents mentioned in such form. If a scheme includes the work- men of more than one employer a separate api)lication shall be made by each employer. 2. Every application for re-certification, under section 15 of the Act, of a scheme certified under the Workmen's Compensation Act, 1897, and in force on 1st July, 1907, shall be in Form C, and shall be accompanied by the documents mentioned in such form. If a scheme includes the workmen of more than one employer a separate ajiplicatiou shall be made by each employer. 3. Every application for certificate to a partial amendment of a scheme shall be in Form D, and shall be accompanied by the documents mentioned in such form. If a scheme includes the workmen of more than one employer a separate application shall be made by each employer. 4. Every application for renewal of certificate to a scheme shall be in Form E, and shall be accompanied by the documents mentioned in such form. If a scheme inchxdos the worknien of more than one employer a separate application shall be made by each employer. 5. Every complaint by or on behalf of workmen shall be as nearly as may be in Form F. workmen's compensation orders, etc. 839 £ s. d. 1 2 3 5 1 6. The following fees shall be payable in advance for mattoi's to be trans- acted and for the inspection of documents under the Act : — For every certificate to a scheme, for the renewal of certificate to a scheme, or for the re-certification (under section 15 of the Act) of a scheme, when the number of workmen in the employment — does not exceed 100 . exceeds 100, but does not exceed oOO 500 ,, ,, 1,000 ,, 1,000 For every certificate to a partial amendment of a scheme (In any of the above cases when a scheme includes the work- men of more than one employer the fee will be payable by each employer in accordance with the number of workmen in his employment.) For every determination as to distribution of funds on expira- tion or revocation of certificate to a scheme, when the amount for distribution — ■ does not exceed 500/. .500 exceeds 500/ Not exceeding 1 p.c. of the amount for distribution. For every document recjuired to be signed by a Registrar or to bear the seal of the Central Office and not chargeable with any other fee to the Eegistrar . 2 6 For every inspection on the same day of documents (whether one or more) in the custody of the Eegistrar relating to one and the same scheme . . . . . . . . .010 For every copy or extract of any document in the custody of the Eegistrar, not exceeding 216 words . . . . .010 And, if exceeding that number, 4d. per folio of 72 words (in addition to the fee, if any, for the signature of a Eegistrar or seal of the Central Office). J. D. Stuart Sim, Chief Eegistrar of Friendly Societies. 1st July, 1907. Form A. Worhmeris Compensation Act, 1906. Application for Certificate to Scheme. Fiill name and address of employer Nature of employment Situation of works This application is made by the undersigned employer and five workmen. 840 STATUTORY IJAr.Il.lTY OF EMPLOY KKS. If the scheme includes other employers and their workmen a sepanite application must be made by each employer and provision for administra- tion. &c. should be made in the scheme. Tho total luimbor of workmen in tlii' employment is , and at a ballot, taken on , 19 , of such workmen voted in favour of the scheme, an abstract of which — with a notification that any workman objecting; to the same was at liberty to communicate his views to the Registrar of Friendly Societies, 2S, Abingdon Street, London, S.W. [')?• (ts the aisr may bi-] — was posted in a conspicuous position at all tho works for a period of at least fourteen days immediately preceding the dat(^ of such ballot. The scheme includes [or does not include] other employers and their workmen. The following is a comparison of the i)rovisions of tho scheme with those of the Act : — Scale of Compensation. By Act. Where death results from the injury- fa) If the workman leaves any dependants wholly depen- dent upon his earnings. (b) If the workman does not leave any such dependants, but leaves any dependants in p.irt dependent upon his earnings. (c) If the workman leaves no dependants. Where total incapacity for work results from the injury — (a) All cases other than those under (b). (b) If the workman is under 21 years of age and his average weekly earnings are less than 20.s'. Where partial incapacity for work results from the injury. By Scheme. (a) InO/. to 300/., subject to the conditions mentioned in the Act. (b) Not exceeding (a). (c) Not exceeding 1 0/. (a) Not exceeding 50 per cent, of average earnings and not exceeding 1/. per week, but no compensation for first week if the incapacity lasts less than two weeks. (b) Not exceeding average earn- ings and not exceeding 10,5. per week, but no compensa- tion for first week if the in- capacity lasts less than two weeks. As for total incapacity, but not exceeding the difference be- tween average earnings before incapacity and average earn- ings while in receipt of com- pensation. (a) (b) (c) (a) (b) The following arc the benefits provided by the scheme other than those of the Act: — The contribution of the employer to the scheme is to be Tho contribution of the workmen to the scheme is to be workmen's compensation orders, etc. 841 The scheme contaius provisions enablinf^ a workman to withdraw from the same, but does not contain any obligation upon the workmen to join the scheme as a condition of tlieir hiring. With this application arc. sent — (a) Two printed copies of the scheme, each stitched in covers and signed by the applicants ; (b) An actuarial rei^ort on the scheme by Mr. ; (c) A statutory declaration in Form B verifying the result of the ballot, &c. ; (d) A statement showing (1) the views of the general body of the work- men as to the scheme, and (2) how such views were ascertained; and (e) The fee of* prescribed by the Regulations. The views of the employer are as follows : — • Sff. Regula- tion 6. The views of the workmen are as follows : — Workmen. Date 19 Employer. Form B. If the employer is a body cor- porate the seal of the corpora- tion should be afiixed and duly witnessed in the space provided for the signa- ture. Workme7i\s Compeusatum Act, 1906. Declaration verifying result of Ballot, (fee. Full name of employer I, , of , do solemnly and sincerely declare that at a ballot taken on , 19 , after fourteen days' notice thereof had been given, out of the total number of workmen in the employment of voted in favour of the scheme, application for* which is attached to this declaration, and that on the date of the said ballot the total number of work- men in the said employment was And I make this solemn declaration, conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act, 1835. Siynature of declarant fTaken and received before me, one \ of His Majesty's Justices of the i Peace for the County of , > at , in the said County, i this day of , 19 . / (This declara- tion is to be made either by the employer, by the manager of the works, or by some other responsible person.) * Insert "certificate to," "re-certifica- tion of," or as the case may be. t This is to be altered as the case requires where any declaration is made before a Borough Magistrate or Commissioner for Oaths. 842 STATlirOKV LIAl'.ILrrV OF KMl'LOYERS. Form C. If the scheme iiK'hides other enii)l()ycT.-i and their workmen a separate api)Iication must be made by each employer and provision for administra- tion, Are. should be made in the scheme. Work incurs Cinnjie.nsatiou Act, 1906. Api>llcatioii for rr-artijicuiion of a Scheme certified under the Act of 1897. I'liU nuinc and address of eiuployur Naturo of employment Situation of works Tliis aj)plication is made by llin undersigned em])loyer and five workmen. This scheme was certified on , under tlie Workmen's Compensation Act, 1897, the nTimber of the certificate being , and was in force on 1st July, 1907. The total number of workmen in tlie employment is , and at a ballot, taken on , 19 , "f such workmen voted in favour of the schonie now submitted, an abstract of which— with a notification that any workman objecting to the same was at liberty to communicate his views to the Registrar of Friendly Societies, 28, Abingdon Street, London, S.W. [or as thc'^rri.'fc may /)f]— was" posted in a conspicuous position at all the works for a period of at least fourteen days imniodiattdy preceding the date of such ballot. The scheme includes [_(>r does not includi>] other employers and their workmen. Th(! following is a comparison of the provisions of the scheme now sub- mitted with those of the scheme as certified and with those of the Act : — ScALK OF Compensation. Bv Act. (a) 150/. to 300/., subject to the eonditious men- tioned in the Act. Where death re.sults from the injury — (a) If the workman leaves any depen- dants wholly de- pendent upon his earnings. . (b) If the workman does (b) Not exceeding (a not leave any such | dependants, but leaves any depen- dants in part de- pendent upon his earnings. (e) If the workman leaves no depen- dants. (c) Not exceeding 10/. By Scheme. As now Hubraitted. (a) (b) (c) As already certified. (a) (b) workmen's compensation orders, etc. 843 Scale of Compensation. By Act. By Scheme. As now As already submitted. certified. Where totnl incapacity for work results from the injury — (a) All oases other than those under (b). (a) Not exceeding 50 per cent, of average earn- ings and not exceeding 11. per week, but no compensation for first week if the incapacity lasts less than two weeks. (a) (a) (b) If the workman is under 21 years of (b) Not exceeding average earnings and not ex- (t>) (b) age and his averae)isation Act, 1906. ApplicKtion for renewal (f certlficatt' to Schemt'. Full name and address of employer Nature of employment Situation of works This application is made by the undersigned employer and five workmen. The total number of workmen in the employment is , and the number contracting out under the scheme is The scheme includes [r/r does not include] other employers and their workmen. [If any modification of the scheme is now proposed, tlie following com- parative statement should be filled in]. workmen's compknsation orders, etc. 845 The following is a comparison of the provisions of the scheme now sub- mitted with those of the scheme as certified and with those of the Act : — Scale of Compensation. By Act. By Scheme. As certified. Proposed alterations. Where death results from the injuiy — (a) If the workman leaves any depen- dants wholly de- pendent upon his earnings (b) If the workman does not leave any such dependants, but leaves any depen- dants in part de- pendent upon his earnings. (c) If the workman leaves no depen - dants. (a) 150^. to 300/., subject to the conditions men- tioned in the Act. (b) Not exceeding (a). (c) Not exceeding 10/. (a) (b) (a) (b) Where total incapacity for work results from the injury — (r) All cases other than those under (b). (b) If the workman is under 21 years of age and his average weekly earnings are less than 20s. (a) Not exceeding 50 per cent, of average earn- ings and not exceed- ing 11. per week, but no compensation for first week if the in- capacity lasts less than two weeks. (b) Notexceeditigraverage earnings and not ex- ceeding lO.s. per week, but no compensation for first week if the incapacity lasts less than two weeks. (a) (b) (a) (b) Where partial incapacity for work results from the injury. As for total incapacity, but not exceeding the difference between aver- age earnings before in- capacity and average earnings while in receipt of compensation. Benefits other than those o: Contributions of employer Contributions of workmen the Act 846 STATUTORY LIAISIUTV OF KMPLOVKKS. • Tlie Regis- trui- may rwiuire it ballot if he thinks Ht. + 5 (>iii])l()yer arc as follows: — The views of the workmen are as follows : — If the omployer is a body cor- porate the seal of the corpora- tion should be affixed and duly witnessed in the space provided for the signa- ture. Date 19 . > Workmen. Employer. Form F. Workmen's Compensation Art, 190G. Form of Complciint of Workmen. Scheme No. To The Registrar of Friendly Societies, 28, Abingdon Street, London, S.W. Complaint is hereby made by or on behalf of the workmen of (the employer under the above-mentioned scheme) : — I''. That the benefits conferred by the scheme no longer conform to the conditions stated in sub-section (1) of section 3 of the above- mentioned Act in the following respects : — or, 2°. That the provisions of the scheme arc being violated in the following respects: — or, IJ". That the scheme is not being fairly administered in the following respects : — or, 4". That the following reasons exist for revoking the certificate to the scheme : — You are requested to examine into this complaint, and if satisfied that good cause exists for it, to revoke the certificate to the scheme unless the cause of complaint is removed. The uudcrsigucul havi; been authorised in the following manner to make the complaint on behalf of themselves and the other workmen of the said employer : — Workmen. Pate , 19 , workmen's compensation orders, etc. ^47 STATUTORY RULES AND ORDERS, 1908. No. 17. Regulations, dated January 15, 1908, made by the Secretary of State under Section 12 of the Workmen's Comi-ensation Act, 1906, as to Returns to be furnished each year by Employers IN CERTAIN Industries with respect to the Compensation paid UNDER the Act during the previous year. In pursuance of the powers conferred on me by section 12 of the Workmen's Compensation Act, 1906, I hereby make the following regulations : — 1. The industries to which section 12 of the Act shall apply shall be the industries specified in the first Schedule to these regulations. 2. The date on or before which in every year the return required under the said section shall be sent to the Secretarj^ of State shall be the first day of March, commencing with the year 1909. 3. The return shall furnish the particulars set out in the second schedule to these regulations. H. J. Gladstone, One of His Majesty's Princijjal Secretaries of State. SCHEDULE I. Mining. Quarrying. Working of railways (not being railways laid on public roads) authorised by special Act or by Orders or Certificates made in pursuance of General Acts and having statutory force, including stations and sidings connected with such railways and belonging to the owners thereof. Any industry being carried on in anj- factory to which the Factory and Workshop Act, 1901, applies. The business of a harbour-, dock, wharf or quay. Constructional work (includes the construction of railways, tramways, canals, harbours or docks, bridges, tunnels, waterworks, sewers, roads, and other works of engineering, but does not include construction of buildings). Shipping (excluding sailing-vessels in the sea-fishing service). SCHEDULE II. Form of Return. Workmm's Compensation Act, 1906, Section ]2. The employer is required to send to the Home Office on or before the first day of March, 190 , a return showing the following particulars as to the 848 STATUTORY LTAP.IT.ITY OK EMPLOYERS. compensation paid by him iindfr tin- Workmen's Compensation Act, 1906, durinj? the year 190 . In default of so doing ho will be lia])le to a penalty. The emjdoyer's attention is specially dii-ected to the following: i)oints :— (1) The iiirurcs furnished by the individual employer will not be published, but will be treated as strictly confidential. Only totals for industries will be jjublished. (2) The return should not includu any particulars with regard to (a) compensation paid under a contracting-out scheme certified by the Chief Registrar of Friendly Societies under the Workmen's Compensation Act, or (b) damages under the Employers' Liability Act, or at Common Law, or (c) paymcmts made under section 34 of the Merchant Shipping Act, 1906. (3) In calculating the figures as to compensation paid, the employer should take into account only the amovuit actually ])aid by him (or by an Employers' Association or IMutual Indemnity or other Insurance Company on his behalf) to the worker. In particular he should not take into account either (a) costs incui-red by him in connection with legal proceedings or otherwise, or (b) amounts received by him by way of indemnity from third parties or under sub-section (1) (c) 'iii.) of section S (industrial diseases) of the Act. (4) An employer insured against his liabilities under the Act in a Mutual Indemnity or other Insurance Company, or belonging to an Association of Employers which deals on behalf of its members with claims for compensation, will not be required to make a separate return, provided the Company in which he is insui-ed, or the Association to which he belongs, is under an arrangement with the Home Office to make returns on behalf of the employers insured or represented by it. Otherwise he must make the return, obtaining any particulars required from the Company or Association. (5) In filling up the form it is particularly requested that no blanks may be left. Columns in which there are no entries to be made should have NIL written across them. N.B.— A separate return should be made tor EACH of the following industries : — (1) Factories, (2) Mines, (3) Quarries, (4) Railways, (5) Docks, (6) Steamships, (7) Sailing Vessels, (8) Constructional Work. Name of Employer Address of Works (or Office) Industry (and, iu case of factories, nature of work carried on) • Approximate average Number of Persons employed to | Male whom the Act applies (Female * Iu ciisc nf shipowners the gross touuagu of the vessels will also require to bo st^'ted, workmen's compensation orders, etc. 849 Accidents. A. — Cases of death [whether conipensation paid into Court or to legal personal representative). No. of cases in which compensation paiddm-iug 190 . Total amount of compen- sation paid during 190 . (a) Cases where there were persons wholly de- pendent* (b) Cases where there were only persons partly dependent (c) Cases where only medical and burial t expenses paid Total * Including' cases in which compensation paid both to persons wholly and to persons partly dependent. t Expenses incurred under section 34 of the Merchant Shipping Act, 1906, should not be included. Ji.— Cases of persons temporarily or permanenth/ disahled. I. Total Figures for 190 . Cases continued from previous years Cases in which the first payment of compensation was made diuing 190 Total No. of cases in wliich compensation paid during 190 Total amount of compen- sation paid during 190 . II. Particulars as to Duration of Compensation. State in following Table how many cases were terminated during 190 after payment (whether in 190 or in previous years) of less than 2 weeks' compensation, of 2 weeks' compensation but less than 3, and so on. (Cases terminated by payment of a lump sum should 7iot be included.) Leas than 2 weeks. 2 weeks and less than 3. 3 weeks and less than 4. 4 weeks and less than 13. 13 weeks and less than 26. 26 weeks and over. M. 3i 850 STATUTORY LIABILITY OF KMPLOYERS. Ila. Additional Particulars as to ('ases not terminated at end of 190 which had lasted more than 1 year. Over 1 year and less than 2. 2 years and less than 5. 5 years and less than 10. 10 years and over. • III. Particulars as to nou-fatal Cases settled hy payment of Lump Sums.* Cases settled by payment of lump sum without previous weekly jiayments .... Cases settled by payment of lump sura after previous weekly payments : — (i) Where weekly payments had lasted less than 26 weeks (ii) Where weekly payments had lasted 26 weeks and over Total * Cases in which the lump sum was only the aggregate of a nmnber of separate weekly payments already due shoidd not be entered in this Table, but in Table II. Number of cases. Total amount paid. Indtjstriax, Diseases. A. — Cases of death {ivhether compensation paid into Court or to legal personal representative). No. of cases in which compensiition paid during 190 . Total amount of compen- sation paid during 190 . (a) Cases where there were per.sons wholly de- (b) Cases where there were only persons partly dependent (c) Cases where only medical and burial t expenses paid Total * Including cases in which compensation paid both to persons wholly and to persons partly dependent. t Expen.ses incurred under section 34 of the Merchant Shipping Act, 1906, should not be included. workmen's compensation orders, etc. 851 B. — Cases of persons temporarily or per nfiancntly disabled. I. Total Figures for 190 . Cases continued from previous years Cases in which the first payment of compensation was made during 190 Total No. of cases in which compensation paid during 190 Total amount of compen- sation paid durino: 190 . II. Particulars as to Duration of ComiDensation. State in following Table how many cases were terminated during 190 after payment (whether in 190 or in previous years) of less than 2 weeks' compensation, of 2 weeks' compensation but less than 3, and so on. (Cases terminated by payment of a lump sum should not be included.) Less than 2 weeks. 2 weeks and less than 3. 3 weeks and less than 4. 4 weeks and less than 13. 13 weeks and less than 26. 26 weeks and over. Ila. Additional Particulars as to Cases not terminated at end of 190 which had lasted more than 1 year. Over 1 year and less than 2. 2 years and less than 5. 5 years and less than 10. 3i2 10 years and over. 852 STATUTORY LIABILITY OF EMPLOYERS. III. Particulars as to non-futal Cases settled by pajanent of Lump Sums.* Number of cases. Total amount paid. Oases settled by payment of lump sum without previous weekly payments .... Cases settled by payment of lump sum after previous weekly payments : — (i) Where weekly payments had lasted less than 26 weeks (ii) Where weekly payments had lasted 26 weeks and over .... Total Cases in which the lump sum was only the a), and sect. Hi, at p. 567, supra. {h) See pp. 397, 399, mpra. (i) See pp. 366, 383, supra. As to Quarries, p. 432, supra. (/■) See sects. 1 and 2. [l) See p. 528, supra. (m) See p. 478, supra, and tlie note there. NOTICE OF ACCIDENTS ACT, 1906. 861 5. — (1) If the Secretary of State considers that, by reason of the risk of Power to serious iniury to persons employed, it is expedient that notice should be extend pro- T .■,... . n • , , ,. 1 • n visions as to given under this Act m every case oi any special class of explos-ion, tire, notice of collapse of buildings, accidents to machinery or plant, or other occurrences accidents to in a mine or quarry, or in a factory or workvshop, includins: any place which dangerous Ot/j. OCCUITGIICGS for the purpose of the provisions of the Factory and Workshop Act, 1901, with respect to accidents is a factory or workshop (n), or is included in the word " factory" or "workshop " (?;), or is part of a factory or workshop (■«), the Secretary of State may by order extend the provisions of this Act requiring notice of accidents to be given to an inspector to any such class of occurrences, whether personal injury or disablement is caused or not, and, where any such order is made, the provisions of this Act shall have effect as extended by the order. (2) The Secretary of State may by any such order allow the required notice of any occurrence to which the order relates, instead of being sent forthwith, to be sent within the time limited by the order. By order (St. R. & 0. 1906, No. 933 ; St. R. & O. 1906, p. 174) this section has been extended in factories and workshops to — ' ' All eases of — " bursting of a revolving vessel, wheel, emery wheel, or grindstone moved by mechanical power ; " breaking of a rope, chain, or other appliance used in raising or loweting persons or goods by aid of mechanical power ; " fh'e affecting any room in which persons are employed and causing complete suspension of ordinary work therein for not less than twenty- four hours." In mines and quarries it has been extended (St. R. & O. 1906, No. 934 ; St. R. & O. 1906, p. 490) to— ' ' all cases of ignition of gas or dust below ground other than ignitions of gas in a safety lamp ; " all cases of fire below ground ; " all cases of breakage of ropes, chains, or other gear by which men are lowered or raised ; " all cases of overwinding cages while men are bemg lowered or raised ; " all cases of inrush of water from old workings." 6. Section one of the Notice of Accidents Act, 1894, shall be read as if the Notice of words ' ' cause him to be absent throughout at least one whole day from his accidents ordinary work " were substituted for the words " prevent him on any one of 55 yj^f „ \s the three working days next after the occurrence of the accident from being employed for five hours on his ordinary work" in sub-section (1) of that section (0). 7, — (1) The enactments mentioned in the schedule to this Act are hereby Repeal, con- repealed to the extent specified in the third column of that schedule. struction and (2) This Act may be cited as the Notice of Accidents Act, 190(3, and shall come into operation on the first day of January nineteen hundred and seven, but the Secretary of State may ajipoint a later date (not being later than the («) See sects. 104 — 106 of the Factory supra. and Workshop Act, 1901, at p. 518, (0) See p. 433, supra, and note there. 862 NOTICE OF ACCIDENTS ACT, 1906. first day of January one thousand nine hundred and eight) for any special provision of the Act to come into operation, and, if a Liter date is so appointed, that special provision shall not come into operation until that later date. Section?. Session and Chapter. 35 & 36 Vict. C.77. 50 & .51 Vict, c. 58. 57 & 58 Vict, c. 28. 63 & 64 Vict. c. 27. lEd«-. 7,c. 22. SCHEDULE. Enactments Eepealed. Short Title. The Metalliferous Mines Regulation Act, 1872. The Coal Mines Regula- tion Act, 1887. The Notice of Accidents Act, 1894. The Railway Employment (Prevention of Accidents) Act, 1900. The Factory and Workshop Act, 1901. Extent of Repeal. Section eleven from the beginning to "injured respectively." Section thirty-five, sub-section one. Section one, sub-section three. Section thirteen, sub-section three. Section nineteen. FACTORY AND WORKSHOP ACT, 1907. 863 FACTORY AND WORKSHOP ACT, 1907. (7 Edw. 7, c. 39.) An Act to amend the Factory and Workshop Act, 1901, ivith respect to Laundries, and to extend that Act to certain Institutions and to provide for the inspection of certain premises. Laundries. 1. The Factory and Worksliop Act, 1901 (which Act, as amended by any Application of subsequent enactment, including this Act, is hereinafter referred to as the 1 Edw. 7, principal Act), shall, subject to the provisions of this Act, apply to laundries j^^undries as if at the end of Part II. of the Sixth Schedule to that Act, enumerating non-textile factories and workshops, the following paragraph were added :■ — " (29) Laundries carried on by way of trade or for the purpose of gain, or carried on as ancillary to another business or incidentally to the purposes of any public institution " {(t). 2. — (1) In laundries, other than laundries ancillary to a business carried Hom-s of on in any premises which, apart from the provisions of this Act, are a factory employment •1 ^ 01 women and or workshop— young persons (a) The period of employment of women may on any three days in the in laundries. week, other than Saturday, begin at six o'clock in the morning and end at seven o'clock in the evening, or begin at seven o'clock in the morning and end at eight o'clock in the evening, or begin at eight o'clock in the morning and end at nine o'clock in the evening : Provided that a corresponding reduction is made in the periods of employment on other days of the week, so that the total number of hours of the periods of employment of women, including the intervals allowed for meals, shall not exceed sixty-eight in any one week; (b) Where the occupier of a laundry so elects, the following provisions shall apply to the laundry in lieu of the provisions of the last pre- ceding paragraph : — The period of employment of women may, on not more than foiu* days, other than Saturday, in any one week, and on not more than sixty days in any calendar year, begin at six o'clock in the morning and end at seven o'clock in the evening, or begin at seven o'clock in the morning and end at eight o'clock in the evening, or begin at eight o'clock in the morning and end at nine o'clock in the evening ; (c) Different periods of employment may be fixed for different days of the week. (a) See sect. 103 of th^ Factory and Workshop Act, 1901, at p. 517, supra, and note there. 864 FACTORY AND WORKSHOP ACT, 1907. Special rej^u- lations to be complied with in laundries. Application of provisions as to domestic workshops. (2) The foregoing provisions of this section shall bo deemed to be special exceptions within the meaning of section sixty of the principal Act (b), but it shall not be lawful for the occupier of a laundry to change from the system of erai)loyment under the above paragi-aph (a) to the system of employment under the above paragraph (b), or vice versa, oftener than once a year. The entry required to be made in the prescribed register by sub-section four of the said section sixty (h) as so applied shall, in the case of overtime employ- ment under i)aragraph (b), be made before the commencement of the over- time employment on each day on which it is intended that there should be such eniplojTnent, and, in reckoning the sixty days for the purposes of paragraph (b), every day on which any woman had been employed overtime shall be taken into account. (3) Subject as aforesaid, the provisions of the piincipul Act as to hours of employment shall apply to laundries. 3. In every laundry — (a) If mechanical power is used, a fan or other efficient means shall be provided, maintained, and used for regulating the temperature in every ironing room, and for carrying away the steam in every washhouse ; (b) All stoves for heating irons must be sufficiently separated from any ironing room or ironing table, and gas irons emitting any noxious fumes must not be used ; and (c) The floors must be kept in good condition and drained in such manner as will allow the water to flow off freely. A laundry in which there is a contravention of any of these provisions shall be deemed to be a factory or workshop not kept in conformity with the principal Act (c). 4. Sub-section (2) of section one hundred and fourteen of the principal Act {d ) (which provides that certain domestic workshops are not to be deemed workshops within the meaning of that Act) shall apply to laundries as if for the words " the altering, repairing, ornamenting, or finishing of any article " there were substituted the words "the altering, repairing, ornamenting, washing, cleaning, or finishing of any article." Institutions. Application of Factory and Woi-kshop Acts to certain institutions. 5. — (1) Where in any premises forming part of an institution carried on for charitable or reformatory purposes, and not being premises subject to inspection by or under the authoritj' of anj^ Government Department, any manual labour is exercised in or incidentally to the making, altering, repairing, ornamenting, finishing, washing, cleaning, or adapting for sale, of articles not intended for the use of the institution, the provisions of the principal Act shall, subject to the provisions of this Act, apply to those premises notwithstanding that the work carried on therein is not carried on by way of trade or for the purposes of gain, or that the persons working therein are not working under a contract of service or apprenticeship. {b) See p. 498, supra. (c) For penalty, see sect. 135 of prin- cipal Act. (d) See p. 524, supra. FACTORY AND WORKSHOP ACT, 1907. 865 (2) If in any institution to which this section aiiplies the persons having the control of the institution (hereinafter referred to as the managers) satisfy the Secretary of State that the only persons working therein are persons who are inmates of and supported by the institution, or persons engaged in the supervision of the work or the management of machinery, and that such work as aforesaid is carried on in good faith for the purposes of the support, education, training, or reformation of persons engaged in it, the Secretary of State may by order direct that so long as the order is in force the principal Act shall apply to the institution subject to the following modifications : — ■ (a) The managers may submit for the approval of the Secretary of State a scheme for the regulation of the hours of employment, intervals for meals, and holidays of the workers, and of the education of children, and, if the Secretary of State is satisfied that the provisions of the scheme are not less favourable than the corresponding provisions of the principal Act, the Secretary of State nfay approve the scheme, and upon the scheme being so approved the principal Act shall, until the approval is revoked, apply as if the provisions of the scheme were substituted for the corresponding provisions of the l^rincipal Act ; any scheme when so approved shall be laid as soon as possible before both Houses of Parliament, and if either House, within the next forty days after such scheme has been laid before that House, resolve that the scheme ought to be annulled, the scheme shall, after the date of the resolution, be of no effect without prejudice to the validity of anything done in the meantime there- under, or to the making of any new scheme ; (b) The medical officer of the institution (if any) may, on the application of the managers, be appointed by the chief inspector of factories to be the certifying surgeon (c) for the institution ; (c) The provisions of section one hundred and twenty-eight of the principal Act (/) as to the affixing of an abstract of the principal Act and of notices shall not apply, but amongst the particulars required to be shown in the general register (y) there shall be included the pre- scribed particulars of the scheme, or where no scheme is in force the prescribed particulai's as to hours of employment, intervals for meals, and holidays, and education of children, and other matters dealt with in the principal Act ; (d) In the case of premises forming part of an institution cax-ried on for reformatory purposes, if the managers of the institution so give notice to the chief inspector of factories, an inspector shall not, without the consent of the managers or of the person having charge of the institution under the managers, examine an inmate of the institution save in the presence of one of the managers or of such person as aforesaid : Provided that the Secretary of State, on being satisfied that there is reason to believe that a contravention of the principal Act is taking place in any such institution, may suspend the operation of {e) See sects. 122 — 124 of principal (/) See p. 530, supra. Act, at p. 528, su^jrci. [g) See sect. 129 of principal Act. M, 3 K 866 FACTORY AND WOINvSIK »I> ACT, 1907. this provision as respects that institution to such extont as ho may consider necessary ; (e) The managers shall not later than the tii'tecnth day of Januai'v in each year send to the Secretary of State a correct return in the prescribed form, specifying the names of the managers and the name of the person (if any) having charge of the institution under the managers, and such particulars as to the number, age, sex, and cmiiloj-ment of the inmates and other persons employed in the work carried on in the institution as the Secretary of State may require, and shall, if any requirement of this paragraph is not complied with, b(; liable to a fine not exceeding five pounds. Inspection of certain premises. Short title, construction, commence- ment, and n-peal. Suri'LEMENTAL. 6. Where in any premises wliieli are subject to inspection ])y or under the authority of any Government department any manual labour is exercised, otherwise than for the purposes of instructicm, in or incidental to the making, altering, repairing, ornamenting, finishing, washing, cleaning, or adapting for sale, of any ai'ticle, and the premises do not constitute a factory or workshop by reason that the work carried on therein is not carried on by way of trade or for the purposes of gain, or by I'eason that the persons employed in the work are not working under a contract of service or apprenticeship, the Secretary of State may arrange with the department that the premises shall, as respects the matters dealt with by the princiiial Act, be inspected by an inspector appointed under that Act, and where such an arrangement is made, inspectors appointed under the jirincipal Act shall have, as respects such matters as afores-aid, the like right of entry and inspection as is conferred on inspectors of the de2)artment concerned. 7. — (1) This Act may be cited as the Factory and Workshop Act, li*07, and shall bo construed as one with the Factory and Workshop Act, 1901, and the Factory and Workshop Act, 1901, and this Act may be cited together as. the Factory and Woi'kshop Acts, 1901 and 1907. (2) This Act shall come into oj^eration on the first day of January one thousand nine hundred and eight. (3) Section one hundred and three of the Factory and AVorkshop Act, 1901 (/*), is hereby repealed. [fi) See p. .'517, supra. ( 867 ) INDEX. ACCIDENT, notification of — under Metalliferous Mines Regulation Acts, ;!GG. under Coal Mines Regulation Acts, 399. under Notice of Accidents Act, 189-1. .433. ,, ,, ,, 190G..859. under Quan-ies Act, 1894. .433, n. [kj. under Factory and Workshop Act, 1901.. 478, 518—520, 860, 861. 1907.. 863 (laundries). under Railway Employment (Prevention of Accidents) Act, 1900. .566. investigation of, 372, 403, 406, 434. annual returns of, in mines and quarries, 383, 398, 432, 859. ,, ,, on railway sidings used with mines and quarries, 860. notice of, to employer — under Employers' Liability Act, 1880. .638, 640. under Workmen's Compensation Act, 1906. .662. meaning of word (Workmen's Compensation Act, 1906), 654. ACTION by counsel for fees is not maintainable, 57. by medical practitioner for fees, 57, n. (c). on contract of infant, ratified after full age, does not lie, 59. against apprentice on his covenants, does not lie, 62. lies against apprentice for balance of premium, ibid. against infant on beneficial covenant in contract of service, ibid. by or against apprentices, procedure and jurisdiction in, 63, 64. by or against married women, 68. for wages, if payment left to employer's discretion, does not lie, 114. for wages, dependent on third person's certificate, ibid. for gratuities, does not lie, 115. for remuneration for work done in expectation of legacy, 116. for recovery of wages pro rata, when maintainable, ibid. for extra work or overtime, 117. on entire contract, in part unperformed, does not lie, 120. for wages, master's right of set-off in, 123. See Set-off. for wages, under special statiites, 131. for wag-es, barred after six years, 132. does not lie against Crown or its agents, 140, 224, 262. See Ceown. by apprentice on indentures, plaintiff's absence or habitual dishonesty is answer to, 150. by apprentice against master's executors for non-performance of covenants, will not lie, 151. by servant as to character. See Chaeactee. for wrongful dismissal, measure of damages in, 138, 157, 159, n. (w). for wrongful dismissal, different forms of, 159, for breach of contract to employ, 159. for breach of contract to serve, 161. 3k2 868 INDEX. ACTION— co>itcy and winding-up, 133. on yearly or not yearly hiring, 141. on seduction and loss of service, 203. on servant's authority to contract, 220. on master's liability for servant's torts, 267. on common oiriploymcnt, 306. on duties relating to premises, mai'hiuery and plant, 309. INDEX. 869 APPRENTICE liable to moderate chastisement by master, 30. as distinguished from servant, 40, 46. is servant for purposes of Embezzlement Acts, 40, n. (p). cannot make binding contract of service with second master, 58. entering army or militia, ibid. is prim a facie bound by his contract, 59. is not bound, if contract disadvantageous, ibid. cannot be sued on covenants in indentures, 62. custom of London regarding, 62, 214. negative covenants in indentures not enforceable by injunction against, 62, n. [c). may be suei on covenant for balance of premium, 62. age at which a person may be bound, ibid. may be bound to a corporation, ibid. special jurisdiction and procedure with regard, to, 63, 64. indentures not dissolved by marriage of, 64. instrument of apprenticeship — formalities of, 86. stamp duty on, 89. primd facie master pays stamp duty on, 89. to the sea — subject to Employers and Workmen Act, 1875. .87, 620. indentures of, exempt from stamp duty, 89. recovery of wages by, 131. duty of master to supply nourishment and medical aid to, 147. liability of master for neglecting, ibid. supervision of pauper, 148. master's duty to teach, 149. place where teaching is to be given to, 150, 191. when master's executors liable on covenants to, 150, 206, 214. cannot recover premium on death of master, 151. sickness or incapacity of — right to maintenance in case of, 181, n. (i). right to wages, in case of, ibid. master is entitled to all earnings of, 186. dismissal of, for misconduct, 189. action against third persons in respect of, 193, 199. See Action. indentures, how affected by death of master or, 205. may be bound to serve master's executors, 206. consent to cancellation of indentures by, 208. on master's bankruptcy, rights of, 209. is deemed to " work for hire" (1 Edw. VII. c. 22), 540. jurisdiction under Employers and Workmen Act, 1875, over, 613, 619, 620. to the sea and fishing service, within Workmen's Compensation Act, 1906. .607. ASSIGNMENT of contracts in restraint of trade, 105. in bankruptcy, master's rights under contract of service do not pass by, 209, n. (a). how far contracts of service and apprenticeship transferable by, 213, ATTACHMENT of wages or salary, 130. of seaman's wages, ibid. 870 INDEX. BAILEE, liability of, to bailor, for ^ervaut's neglig^euce, 19, ii. (/), 211, 'l.VJ. ,, bailor to, for servant's acts, 19, ii. (/), '2ii. servant distinguished from, 33. larceny by servant when acting as, 54. ■workman receiving goods to work at in course of business, is, 174. if common carrier or innkeeper, is insurer, 23(j. liability of, for goods lost by servant's theft, 236. BANKRUPTCY. See Windinq-Up. priority of claims for wages in employer's, 127. payment of bankrupt's salary or income to trustee in, 129. property not divisible among creditors in, ibid. cldiins for wages to be paid immediately after proof iu, ibid. of master before expiry of period of service, what servant m:iy prove for, ibid. workman's preferential rights under Workmen's Compensatiou Act, 1906, in case of master's, 129, 665. right of action for seduction does not pass to trustee in, 199, n. {iittJi). of miister, does not dissolve contract uf service, 209. ,, effect of, on indenture of apprenticeship, ibid. rights of trustee in- to bankrupt's earnings, 210. to damages for breach of contract recovered by bankrupt, i/>id. to sue as co-plaintiff with bankrupt, 211. under sect. 53, sub-sect. (2), of Bankruptcy Act, 1883, ibid. when undischargeJ bankrupt may sue for wrongful dismissal, ibid. servant not exonerated from service by likeliiiuod of master's, 211. BARRISTER cannot maintain action for fees, 57, 113. BORROWED servant. See Lent. BOY, employment of, under Metalliferous Mines Regulation Act, 1S72. .361, 431. ,, ,, Coal Mines Regulation Acts, 363, 384, 431. See Childhkn ; Definitions. BREACH of implied obligation to carry on business, 94. of obligation to find work for servant, 96. of contract to teach apprentice — by retirement of partner, 149. by ceasing to carry on business, 149. of contract, as to giving notice. See Dismissal ; Notice ; Damaues. of contract to employ, 159. of contract to serve, 161 . of contract, action for maliciously procuring, 194, 609, 610. CABD RIVER and cab proprietor, legal relation between, 35. liability of cabowner for negligence of, 238. CHARACTER, servant is not entitled, as of right, to a, 152. of servant iti prima facie privileged, ibid. protection from discovery of letter giving, 153, n. {l). INDEX. 871 CIIAHAGTER— con I inued. master liable for " express m;ilicc " in -j-iving, 153. limits of privilege in giviug servant's, 155. liability for false and fraudulent statements as tt) servant's, 156. liability for defacing servant's written, ibid. slander of servant's, when actionable without proof of special damage, i//id. forgery of, a criminal offence, 156, 329. Servants' Character Act, 1792.. 328. CHARTERER, liability of, for acts of captain and crew, 15, 23G. CHASTISEMENT of servant, 29. of apprentice, 30. CHILDREN, restrictions on employment of — under Chimney Sweepers Acts, 354, 356, 357. under Metalliferous Mines Regulation Acts, 36 1, 365, 431. under Coal Mines Regulation Acts, 384—386, 431. under Mines (Prohibition of Child Labour Underground) Act, 1900. ,431. under Quarries Act, 1894.. 432. under Agricultural Gangs Act, 1867. .437. under Children's Dangerous Performances Act, 1879. .441. under Prevention of Cruelty to Children Act, 1904. .442. under Employment of Children Act, 1903. .444. under Elementary Education Acts, 450. See Education. under Factory and Workshop Act, 1901.. 474, 475, 481 — 501, 505, 506, 530, 531, 532. See Education. CHIMNEY SWEEPERS, Chimney Sweepers and Chimneys Regulation Act, 1840. .354. Chimney Sweepers Regulation Act, 1864. .356. Chimney Sweepers Act, 1875. . 357. Chimney Sweepers Act, 1894. .362. CLERK, "... or servant," in criminal statutes, 10, n. (i), 24, 32. COMMON EMPLOYMENT, DEFENCE OF, in cases of contractor's and sub -contractor's workmen, 20. when open to master, ibid. origin of, 279, 306. how affected by statute, 279, 627. instances of, 280, 282. does not apply — (i) in cases of master's personal negligence, 281, 282, n. (z). (ii) where injured servant is not at time acting in the defendant's service, 28 1 . (iii) where risk does not arise out of service, 282, n. (z). where negligent servant has, at time of injury, left defendant's service, 281. ajiplies to negligence of foreman or superior, 281, 298. American rule as to "superiors," 281, n. (m), 299. in what sense the etr.ployment must be " common," 282. in Scotland, history of, 282, n. {y), 289, n. (i). in cases of co-operation of different masters' servants, 284. rule in Johnson v. Lindsay : — that in order to succeed, the defendant must show that the plaintiff was at the time of the injury in his service, 288. 872 INDEX, COMMON EMPLOYMENT, DEFENCE OF-coiili>Hitd. the negligent jierson must be the defendant's servant, 285, 289. is no answer to breach of unqualified statutory duty, 289. in cases of " volunteers," ibid. applies in cases of infant employees, 305. COMPANr, authority of directors to liire servants for, 79. variation or discharge of contracts of hiring and service by, 79. winding-up of, priority of wages in, 127. discharge of servants of — Avinding-up order by Court or appointment of receiver operates as, 128. resolution for voluntary winding-up does not operate as, ibid. liability of, for servant's torts, 232, 239, 247. ,, ,, „ "malice," 234, n. {d), 235, n. {.V;c. (38 i: 39 Vict. c. 90, s. 10), meaning of, 6, 618. INDEX. 873 CONTRACT— continued. " who works under a contract with an employer " (38 & 39 Vict. c. 90, s. 10), meaning of, 24, n. {z), 618. to serve for life, when valid, 28. that master may imprison servant, void, 29. of sale distinguished from contract of service, 36. of hiring and service, capacity to make, 57. for professional services, not enforceable bj' barristiu-, ihid. of service or apprenticeship, prima facie binding on infant, o9. not binding on infant, if to his prejudice, ibid. of service, ratification by infant of, ibid. ,, disaffirmation by infant of, 63, u. [ter's trade secrets, 176. enforced by attachment against servants who ;ibet thtir musters in disobeying order of Court, 227. to restrain illogul acts by men on strike, 574. INSPECTION of premises and materials under Embezzlement Acts, 317, 318, 321. under Truck Acts, 34 7, 353. under Metalliferous Mines Regidation Acts, 364, 368. under Coal Mines Regulation Acts, 385, 390, 398, 401. under Quarries Act, 1894. .432. under Notice of Accidents Act, 1894 . , 434. INDEX. 881 INSPECTION— co«<(«Mff/. under Prevention of Cruelty to Children Act, 1904. .443. under Employment of Children Act, 1903 .447. of place of employment under Education Acts, 4o3, 4')4. under Factory and Workshop Act, 1901 . .526. under Shop Hours Act, 1892. .558. under Railway Employment (PreventioQ of Accidents) Act, 1900. .567. under Factory and Workshop Act, 1907.. 863, 865, 8G6. INVENTIONS of servant, when property of master, ISS. LABOUR, classification of forms of, 1 . work and, contract of — in Roman Law, 2. distinj^uished from contract of agency, 4. distinguished from contract of master and servant, 5, 12, 136. distinguished from contract of sale, 36. combination of, examples of, 15. LARCENY Act, 1861, " clerk or servant " in, 10, n. (i), 24, 32. of chattel found by servant, 34. by servant, history of English law as to, 54. LEGACY to servants, decisions regarding, 8, n. (a). work done in expectation of, 110. in satisfaction of wages, 116, n. («). LENT servant — liability of lender for acts of, 15, 23, n. (»•). whether gratuitously or for reward, immaterial, 19, n. {i/). test of borrower's liability for acts of, 22. incompetence of, lender's liability in case of, 23. in control of defective plant, ibid. who is " employer" of, under Workmen's Compensation Act, 1906. .675. LIABILITY for acts of servant lent to third person, 15, 22. ,, ,, as between bailor and bailee, 19, n. (/). ,, ,, in cases of sub-contracts, 20. of partner, for injuries to servant, 74, n. {>•). of master, as to Avages. See Wages. ,, as to notice. See Notice. ,, to indemnify servaut. See Indemnification. ,, to supply sustenance, medical aid, &c., 147, 598. M. 3^ 882 INDEX. LlABUATY-contJnned. of m.aster, as to teaching apprentice, 149. ,, as to servant's character, 1.V2. ,, for wrongful dismissal of servant. See Damaoks ; Dismissal ; Master. of .••ervant, to account for earnings and profits, 187. of third persons to master or servant in rcsi)ect of contract of service, 193. See Action. of trade unions, for tort, abolished, 197, 579, 600, (ill). of master on servant's contracts, 215. See Mastee; Servant. ,, for servant's fraud, 217, 232. of servant on contracts made for master, 223. ,, in case of receipt of money, 224. ,, for torts, 225. ,, for crimes, 228. of master for servant's tortious act — when done in course of his employment, 231, 242, 244, 247, n. (/). when one of the class of acts which the servant was set t(» do, 237. when done on his own hchalf incidentally to performing master's business, 213. when ratified by the master, 248. when done by incompetent servant, 2G1. of corporations and companies for torts of servants, 233, 234, n. (d), 235, n. (//), 238, n. (/(), 24 7. of innkeeper for .'ervant's negligence or larceny, 230. of common carrier for servant's negligence or larceny, ibid. of bailee for loss of goods by servant's theft, ibid. of master, how affected by instructions to servant, 237. on ground of servant's authority to act in an emergency, 21, 240 for unlawful or criminal act of .servant, 241, 244. for act done by servant in protection of master's property, 246. of railway company for loss of luggage by porter, 247. of employer for torts of ctmtraetor and his servants, 219. See Contractor; Sub- Conteactoe. compulsory acceptance of .service creates no, 259. of govennnent officials for torts of subordinates, 202. of statutory bodies for servant's negligence, 263. of master for servant's torts, history of, 263. criminal, of master, for act of servant — when the commission is ordered or procured by master, 273. in case of libel, 274. under certain statutes, in absence of mens rea. ibid. in case of nuisance, 278. of employer to workman — • (i) at common law, 279. (ii) by statute, 625. See Negligence ; Common Employment ; Volenti Non Fit Injuria ; Employees' Liability Act, 1880; Fatal Accidents Act, 1846; Workmen's Compensation Act, 1906. LICENCE for male servant, 90. ,, ,, UTUiecessary in case of hotel-kcvpors, 91. INDEX. 883 LIEN of workman over materials on whicli he expends labour, 16G. for balance of account, ibid. of seaman or master for wag-es, 166, 169. over master's property, servant has not, 167. priority of master's or seaman's, 169. LUNATIC, capacity of, to make binding' contract of service, 73. MARRIED WOMAN can bind her separate estate by contract of service, 66, 68. as agent of husband, authority of, 66. under Divorce Acts, 1S57 and 18o8, position of, 68. under Married Women's Property Acts, position of, 68. marriage does not dissolve contract of service, 72. MiVSTER, liability of principal employer as, to persons engaged by '• buttymen," and " working contractors," .). and servant, definition of, 7. liability of lender of servant, to third persons, as, 15, 23. ,, to third persons as, for acts of contractor's servant, 20. when defence of "common employment" is open to, 20. See Common Employment. lidbility of borrower of servant, to third persons, as, 22. ,, of, for acts of persons engaged by servant, 24. cannot, by agreement, have power of imprisonment, 29. may not chastise servant, ibid. may chastise apprentice moderately, 30. may not delegate authority to chastise apprentice, ibid. of ship may moderately chastise seamen for mutiny, disobedience or insolence, 31. infant may be a, 62. See Infant. when impliedly bound to carry on business, 94. when bound to find work for servant, 96. must pay the agreed wages, 109. when impliedly bound to pay wages, ibid. wages left to discretion of, action does not lie for, 114. may not deduct presents from wages of servant under age, 1L5. set-olf by, against claim for wages, 124, 335, 612, 619. may not contract with workman as to manner or place of payment, or of expenditure, of wages, 126. duties of, to his servant — (i) to pay the agreed wages, 109. (li) to retain servant for agreed period, 135. (iii) to give agreed, or reasonable, " notice," 138. See ]}foTiCE. (iv) to indemnify servant, 144. See Indemnification. (v) to provide sustenance, 147, 598. (vi) to provide medical aid, ibid. (vii) to teach apprentice, 149. (viii) as to "character." See Chaeactee. (ix) to use reasonable care in providing proper tools, plant and promises 292. 3i,2 884 INDEX. MASTER-coii till lied. duties of, to his sen'ant — continued. (x) to use reasouuble care in cliuosiiit;- j:oinpctent foiciuen and servauts, 291, 297. what damages lecoverable from, for wrongful dismissal, lo7. remodiis airainst, for refusal to employ or receive into employiiifut, lo9. action by, for broach of contract to serve, 161. ,, for negligence of servant, ibid. dismissal of servant by — for disobedience, 170. for neglect of duty, 173. for breach of good faith, \7f>. for immoralitj', 178. for insolence, 179. for incompetence, 180. on groimd of illness, 181. action by, servant's permanent illness an ansAver to, 182. may justify dismissal on ground unkiioMn to liini at time of dismissal, ISl. is entitled to outside earnings of apprentice or servant, 18G. inventions of servant, when property of, 188. dismissal of apprentice by, for misconduct, 189. right of, to change place of service, 190. action by, for loss of service by enticement, seduction, battery, procurement of breach of contract, &c., 193 et sqq. See Action. cannot sue for injrry causing servant's immediate death, 200. action by, against railway for injuries to servant travelling, 201. ,, ,, ,, loss of servant's luggage, ibid. death of, contract of service terminated by, 205. bankruptcy of, rights of service or apprentice in case of, 209. liability of, on contracts made by servant — on ground of special authority, 215. ,, of implication from servant's duties, 21'}. ,, of estoppel, 217. ,, of "holding out,"' ibid. ,, of ratification, 219. when contract made after servant has quitted service, ibid. when bound — by servant's receipt, 222. by servant's admissions, ibid. by tender to servant, ibid. servant's liability on contracts made for, 223. servant committing crime in obedience to order of, 228. when ser^ant jointly indictable with, 228, 230. when liable to third persons for servant's tort, 231. See Liability. criminal liability of, for servant's act, 273. See Liability. is not liable to servant for negligence of fellow-servant, 279. See Common Employment. liability to servant, of, 279, 625. See Liability. punishment of, for neglecti 'g servant or ap^jrentice, .598. MASTER AND SERVANT. See Master ; Servant ; Contract ; Action : Liability-. contract of, distinguished from contract of work and labour, 5, 12. definition of, 7. INDEX. 885 MASTER AND SERYA'NT—coHtmaed. tests of relationship of — engagement, 13. power to dismiss, ibid. payment of wages, ibid. control, 5, 13. cab-proprietor and cabdriver ai-e, 35. distinguished from master and apprentice, 40. obligations implied between. Sec Implied. specific performance of contract of, 16"2. relationship of, not created by compulsory acceptance of service, 259. MAXIMS, Otimis definilio in, hf, not subject to attachment, 130. recovery of wages by, 131. insurance of wages by, 133. procedure in case of desertion by, or absence withdiit leave of, l(i;), n. («). lien of, for wages, 166, 169. excepted fi-ora Conspiracy and Protection of Property Act, 187'). .603. are within Employers and Workmen Act, 187.). .620. are not within Employers' Liability Act, 1880. .631, 641. are within Workmen's Compensation Act, 1906. .607. SERVANT, definition uf, 7. interpretation of term, in bequests, 8, n. [a). "clerk or . . . ," in criminal statutes, 10, n. (i), 24, 32. lent, liability of lender for acts and defaults of, lo, 23. lent, liability of borrower for acts and defaults of, 23. of contractor, liability of contractc^e for acts and defaults of, 21 . See Contractor. person employed by, liability of master for acts of, 24. in Inland Revenue Acts, 25. caimot by agreement give master power of imj) isonment, 29. as distinguished from agent, 32. as distinguished from bailee, 33. as such, cannot sue in trespass, 34. chattels found by, ibid. of cab -proprietor, cabdriver, qua the public, is, 3o. as distinguished from contractor, 38. as distinguished from apprentice, 40, 40. as distinguished from tenant, 41, 47. occupying premises for purposes of service, rights of, 4 1 . of Crown, occupying Crown property, exemption fnnn rates of, 42. occupying premises, right to franchise of, ibid. burglary of premises occupied by, in wlioni property m premises to be laid, 43. distinguished from partner, 44. is not partner, merely by reason of remuneration by share of profits, ibid. possession by — in criminal law, .')4. in civil law, 55. in case of bankruptcy, oli. capacity to make binding contract of service, 57. cannot, without master's consent, bind himself to ssrve second master, 58. during military service, settlement not gained by, ibid. deserter cannot be "lawfully hired" as, 68. entering Army or Militia, ibid. seamen volunteering into Navy, ibid. INDEX. 889 SIIRV ANT— continued. authority of married woman to hire, 66. p.artner's authority to hire or discharge, 73. authority of directors of company to hire, 74. licence for male, 90. licence for male, unnecessary in case of hotel -keepers, 91. when master is bound to find work for, 96. is entitled to agreed wages, 109. when right to wages is to be implied, il/id. cannot maintain action for wages, if left to discretion of employer, 114. cannot maintain action for gratuities, 115. " upon expectation of gratuities," 116. when entitled to remuneration for extra work or overtime, 117. when entitle! to extra wages, 118. under entire, or divisible, contract, rights of, 119. abandonment of contract by, owing to increase of risk, 121, n. (v), 171. set-off by mast-r against claim for wages by, 124, 335, 612, 619. priority in bankruptcy for claim for wages by, 127. eutitled t . payment -if wages, immediately after proof in master's bankruptcy, 129. may prove for full salary in master's bankruptcy, ibid. has no preference in claim for wages against executor, 130. legacy to, when taken in satisfaction of wages, ibid. recovery of wages by. See Wages. rights of, as to "notice." See Notice. menial or dome.'stic, who is, 138, n. (b). master's duty to indemnify, 144. master's duty to provide sustenance for, 147. master's duty to provide medical aid for, ibid. liability of master for neglecting, 148, 598. rights of, as to " character." See CnAiiACTEK. when wrougfuUy dismissed, must use reasonable diligence to find suitable employment, 167, 169. remedies of, for wrongful dismissal, 159. remedies of, for non- reception into service, ibid. liable for breach of contract to serve, 161. liable for negligence, ibid. expenses of going to master's house before engagement, or of returning there- from when dismit;vy rata, 116. for extra work and overtime, when recoverable, 117. extra, when .servant is entitled to, 118. under entire, or divisible, contracts, 119, 619, n. {/). forfeited by dismissal for just cause, 120, 186. effect of increase ofri.sk upon claim for, 121, n. (<•). freight not the mother of, 122. of seaman in case of sickness or accident, 122. of seaman in case of capture of vessel, 123. INDEX. 803 WAG-ES —coiitiiuied. in case of work unskilfully done, ibid. of drunken or mutinous seamen, when forfeited, i/nd. master's right of set-off against claim for, ibid., 335, 612, 619. time for payment of, 125. of seaman, when to be paid, 126. are to be paid in current coin, 12-3, 332, 334. are not to be paid in public-houses, 126, 365, 386. recovery of, under Employers and Workmen Act, 1875. .126, n. (d), 131, 612. ,, in County Courts, 65, 126, n. {d), 131. ,, by seamen (a) in Courts having Admiralty jurisdiction, (b) in Courts of summary jurisdiction, 126, n. {d), 131. contracts as to place or manner of payment, or of expenditure, of, pi-ohibited, 126. in bankruptcy and winding-up of company, priority of, 127. may be claimed by representative of employees in winding-up, 129. may not be attached, 130. no preference for, as against executors, ibid. limitation upon recovery of, 132. presumption as to payment of, ibid. apportionment of, 133. insurance of, by master or seaman, ibid. deductions from, 133, 335, 336, 310, 345, 346, 350. seaman's lien for, 166, 169. servant has no lien over master's property for, 167. when payable, in case of servant's sickness, 181, 183. WINDING-UP. See Company. WOMEN. See Definitions. restrictions on employment of — under Metalliferous Mines Regulation Acts, 364. ,, Coal Mines Regulation Acts, 384. ,, Quarries Act, 1894. .432. ,, Agricultural Gangs Act, 1867.. 437. ,, Factory and Workshop Act, 1901 . .474, 475, 481, 505, 506, 531, 532. ,, ,, ,, 1907 (in laundries), 863. WORK executed unskilfully, remuneration for, 123. and labour, contract of. See Laboue. WORKMEN'S COMPENSATION ACT, 1906, I. Geneeal : — chief effects of, 646. new provisions in, 647. persons who are within — "employer," 648, 675. "workman," 649, 676. " dependants," 650, 656, 676. illegitimate children, ibid. " member of a family," ibid. seamen and apprentices to the sea, 650, 667. employees of Crown, 650, 672. •' serious and wilful misconduct," 650, 001. " out of and in the course of the employment," 652, 600. 894 INDEX. WORKMEN'S COMPENSATION ACT, \906-continwd. " accident," personal injury by, 654, 660. industrial diseases within, 655, 689, 695. contracting out — under scheme certified by registrar of friendly societies, 657, 663. revocation of certificate by registrar of friendly societies, 663. distribution of moneys, &o. on tennination of scheme, ibid. accounts and information by emjiloyer regarding scheme, 664. report by chief registrar of friendly societies as to schemes, ibid. regulations by registrar of friendly societies as to schemes, 664, 836. termination of existing schemes and coutracts, 678. re -certification of schemes by registrar of friendly societies, 679. Friendly Societies Act, 1896, not to apply to scheme, 689. one week's disablement necessary, 656, 660. notice of accident, 656, 662. ,, ,, in ease of seamen, 6G7. "claim for compensation," 656, 662, 667, 668. claim both under and independently of Act, 656, 661. questions to be settled by arlitration, 661, 684. sub-contract, rights and liabilities of "principal" and "contractor" in eases of, 664, 667. sub-contract, indemnification of "principal " in cases of, 664. bankruptcy of employer — employer's rights against insurers to vest in workman, 665. workman may { rove for balance of compensation in bankruptcy or liqui- dation, ibi.d. priority of claim for compensation, 665, 666. claim, both for compensation and for damages against stranger, 667. indemnification by stranger of person who has paid compensation or indemnity, il/id. seamen, application of Act to, ifiid. apprentices to the sea, application of Act to, ibid. procedure in such cases, 710. certifying surgeons — appointment of, 669, 670. certificate of, as to industrial disease, 669. appeal from, to medical referee, 670. regulations as to procedure, duties and ivmuncration of, 808. medical referees — appointment of, 673. duties of, 673 — (a) to decide appeals from certifying surgeon [s. 8 (1) (f)], 670. procedure and remuneration, 735, 808. (b) to give certificate under Sched. I. para. (15), 685. procedure and remuneration, 719, 824. (c) to certify under Sched. I. para. (18), 688. procedure iind remuneration, 723, 824. (d) to sit as assessor to County Court judge [Sched. II. (5)], 690. procedure and remuneration, 718, 824. (e) to report on matter submitted to him, 693. procedure and remuneration, 719, 824. accidents, whi(;h happened before commencement of Act, may be referred to, 679. INDEX. 895 WORKMEN'S COMPENSATION ACT, l90G—co)itumed. detention of ships, in case of shipowner's liability, Cu^, 857. procedure, 711, 713, 730. definitions — "employer," 67o. "■workman," 076. "dependants," ifnd. " member of a family," if>iff. "ship," 677. " vessel," ibid " seaman," ibid. " port," ibid. "manager," ibid. " police force," ibid. ' ' out- worker , " 678. "trade or business," ibid. ' ' dependants " — who are, 676. amount of compensation payable to, 679, 681. payment into Court of compensation awarded to, 683. investment, re-apportionment and payment out of compensation awarded to, 684, 685. question of " dependency," how to be settled, 084. apportionment of compensation among, ibid. protection of, in case of compensation by agreement, 691, 692. See VIII. Memoeanpum, infra. examination of workman by employer's doctor, 683, 685. ,, ,, by medical referee, 685. susiDension of workman's rights — because of refusal to be examined by employer's doctor, 683, 085. J, ,, by medical referee, 080. no compensation payable in respect of period of, 688. II. Tribunals undee the Act : — (1) Committee, 657, 658, 689, 690, 693, 694. (2) Arbitrator agreed on by the parties, 657, 658, 690, 691, 693. (3) County Court judge, 657, 658, 689, 690 e( sqq. (4) Arbitrator appointed by County Court judge, G57, 659, 673, 089, 707. (5) Arbitrator appointed on .-.rbitrator's death or refusal to act, 658, 659, 690. See VI. Appeal; V. Costs ; IV. PEOCKntJEE, infra. III. Compensation : — liability to pay, 660. amount and duration of, to be settled by arbitration, 601. to be paid in full by shipowner, 608. annual returns by employers of, 675, 847. amount of, 079, 083. method of computing — in ease of gradual industrial disease, 670. "average weekly earnings," 681. where " concurrent " contracts of service, ibid. " employment by the same employer," ibid. sum paid to workman to cover special expenses, ibid. 896 INDEX. WORKMEN'S COMPENSATION ACT, \dOCy—conli»uecL III. Compensation — continued. weekly payment — amount of, 680, 683. in case of incapacity for less than two weeks, 680. ,, of total incapacity of infant workman earning less than 'IQs. a week, ibid. review of, 687. redemption of, by lump sum, 088. to workman leaving United Kingdom, iliid. may not be a-ssigued, charged or attached, 688. inadequacy or fraud in redemption of, 691. See VIII. MEMOEANnuM. effect of non-registration of agreement for redemption of, (;92. where recipients under legal disability — infants may receive 100 per cent, of average earnings, 680. payment into Court of weekly payment, 684 (infants) maximum of increase of weekly payment on review, 687. special protection in case of agreement for compensation or for redemp- tion of W(;ekly payment, 691, 692. payment into Court of — in ca.se of death, 68:i. ,, of legal disability of injured workman, 684. investment and application of money, 684, 68.5. transfer to another Court of monej^, 684. variation in investment or apportionment, ibid. invested in Post Office Savings Bank, payment out of, 68.5. IV. Proceduee : — (1) Before committee or agreed arbitrator, 6.58. (2) Before County Coui-t judge — appeal, 658, 090, 729. See VI. Appeal, infra. parties — where Crown is employer, 672, 732. names of, 696. joinder of applicants, ibid. applicant in case of death, ibid. ,, under Sched. I. para. (8), 697. ,, ,, ,, para. (1) (a) (iii), ibid. parties under disability and partn<>rs, ibid. adding employer under sect. 8 (1) (c) (iii). 714. third parties — (i) under sect. 4. .704. (ii) under sect. 6, or otherwise, 705. (iii) when employer applicant, 706. appearance of, 709. attendance of witnesses, 690. productitm of documents, ibiri. medical referee — summoned as assessor, 690, 718, 824. report by, on matter submitted to hitn, 69;3, 719, 824. request for arbitration, 698. parti(!ulars therewith, ibid. application by employer, ibid. fixing day for arbiti'ation, 699. INDKX. 897 WORKMEN'S COMPENSATION ACT, IVOG—continuccL IV. Procedttek — con /iv lied. (2) Before County Court judge — continued. where arbitrjition is to bo held, 699. notice of time and place to parties, ibid. service of the notice, ibid. stay of proceedings in test case, 700. . answer by res23ondent, 701. submission by respondent to award for specified weekly i^aynient, ibiil. payment into Court, in case of death, 702. where indemnity claimed between respondents, 706. procedure generally, and in absence of sjiecial rule, 706, 732. award. See VII. Award, infra. (3) Before arbitrator appointed by County Court judge- generally, 059, 708. attendance of witnesses, 690. production of documents, ibid. reference to medical referee for report, C93, 824. fixing day for arbitration, 708. where arbitration is to be held, ibid. special rules — ■ (i) when claim settled by agreement before arbitration, 708. (ii) ou application to enforce or stay proceedings on aw ard, ibiil. submission of question of law to judge, 708. (4) Court in which proceedings may be taken, 692, 730. transfer of proceedings to another Court, 692, 731. V. Costs : — of appeal, security for, 659. of unsuccessful acticm for damages may be deducted from compensiition, 66 1 . are in discretion of judge, committee or arbitrator, 690. taxation of, 690, 725. review of taxation of, 726. appeal from refusal to review taxation of, 690. successful respondent may not be ordered to pay applicant's, 690. in applications to review weekly payment, not to be dealt with by general rule, ibid. lump sum may be awarded for, ibid. Court fees — when payable, 693, 805. Treasury order regulating, 805. table of, 805. of examination by medical referee, 694, 725. power of solicitor or agent to take money out of Court iu paj-meiit of, 726, 728. to be treated as costs in the arbitration, in case of th(> following apiilica- tions — (i) to record memorandum, 717. (ii) to rectify register, ibid (iii) to register agreement (or reference to judg'e), ibid. (iv) to remove record of memorandum of agreement, 7 18. (v) to suspend proceedings or piiyiuents t)u workman's refusal to submit to examination, 72 1 . M. 3 M 898 INDEX. WORKMEN'S COMPENSATION ACT, U)06—cM)li>ii(rts, 726. of solicitor or agent, under Sched If. para. (14) — application for, 7'26. taxation of, 727. review of taxation of, ibid. order as to payment of, ibid. payment of, by party liable, ibid. enforcement of order for payment of, ihid., 728. payment of, when compensation paid into Court, 728 VI. Appeal: — new trial, judge has no power to entert tin application for, (558. lies on point of law only, 658, 690. to Court of Appeal, 659, 666, 690. order for security for costs of, 659. to House of Lords, 659, 694. to Divisional Court, 666, 690. by or against insurers (sect. 5), 666, 710. from refusal to review taxation of costs, 690. judge to furnish note, 710. procedure on, 729. VII. AwAKD : — ■ preparation and signature of, 707. enforcement of (rr. 28, 67, 68, 69), 707, 728, 729. setting aside, on ground of fraud, mistake or omission, 729. VIII. MKMOnAXDITM : — (1) Of committee's or arbitrator's decision — to be recorded by registrar, 691. procedure, 715, 716. enforcement of , 691, 692, 728, 729. rectification by judge of register containing, 691. procedure. 716. (2) Of agreement — to be recorded by registrar, 691. procedure, 715, 716. INDEX. S99 WORKMEN S COMPENSATION ACT, wm^-conUnHed. VIII. Mkmorandtjm — continued. (2) Of agreement — ccntiniced. enforoemerit of, 691, 692, 728, 729. opposition by employer to recording of, (iOl. procedure, 716. rectificatiun by judge of register coutaiiiing, 691. procedure, 716. refusal by registrar to record, for iinidequacy or fraud, 691. procedure, 717. removal by .judge from register of, for fraud, 691. procedure, 718. 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