T UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A TREATISE ON THE LAW OF MASTER AND SERYANT. INCLUDING THEREIN MASTERS AND WORKMEN, IN EVERY DESCRIPTION OF TRADE AND OCCUPATION WITH AN APPENDIX OF STATUTES. BY CHARLES MANLEY SMITH, Esquire, EARRISTER-AT-LAW, OF THE INNER TEMfLE AND MIDLAND CIRCUIT. " Masters, give unto your servants that which is just and equal ; knowing that ye also have a Master in Heaven." — Col. iv. 1. " Servants, obey in all things your masters according to the flesh ; not v/ith eye-service, as menpleasers; but in singleness of heart, fearing God."^ — Col. iii. 22. "Servisunt, imo homines: servi sunt, imo contubernales : servi sunt, imo humiles amtci: servi sunt, imo conservi." — Senec. Ep. xlvii. C]^e ^tcontJ SE^ttion. LONDON: H. SWEET, 3, CHANCERY LANE, FLEET STREET, aato Ijoofeseller anti IJublister. 18Q0. VivENDUM RECTE, cuiD propter plurima, tunc his Praecipue causis, ut linguas mancipiorum Contemnas, nam lingua niali pars pessima servi. T h TO THE RIGHT HONORABLE SIR WILLIAM ERLE, Knight, THIS WORK IS (with his permission) INSCRIBED BY HIS OBLIGED AND OBEDIENT HDMBLE SERVANT, THE AUTHOR. 756639 PEEPACE TO THE SEC(fND EDITION. That the Author was not far wrong in his impres- sion that a Work on the Law of Master and Servant was wanted, both by the Profession and the Pubhc, is suffi- ciently proved by the demand for a Second Edition of the result of his humble endeavours to supply that want. That demand would have been yielded to at an earlier period but for the hope entertained by the Author, that the Statute Law Commissioners would have been enabled to have procured the passing into a Law of the Bill prepared for them by Mr. Warrington Rogers for consolidating the Statute Law relating to Masters and Servants, and Masters and Workmen («). All chance of the realization of the Author's hopes in this respect appearing, however, for the present at least, to have passed away, he feels that he should not be justified in any longer delaying to offer to the Profession and the Public another Edition of his little Work, as numerous decisions have taken place, and various Statutes have been passed affecting matters therein treated of, since the first Edition was published. Besides a vast number of English, Scotch, and Irish decisions, a great many American cases have been added to this Edition ; and no pains have been spared to render the Work worthy of that kind patronage which has already been bestowed upon it. (o) See further on this subject, post, p. 1. 1 PREFACE TO THE SECOND EDITION. The only material alteration in the arrangement of the Work from that pursued in the former Edition, is in the transferring from Chapter V. to Chapter IV. of the cases upon the subject of a Master's liability to his Servant for injuries sustained through the negligence of a fellow- servant. As those cases appear more properly to range themselves under the head of a Master's duty to indemnify his Servant from the consequences of obeying his com- mands, than as an exception to a Master's general liability for the acts of his Servant, they have accordingly been placed in Chapter IV. In a future Edition, the statement of those cases may probably be curtailed without disadvantage ; but the principle established by them appears, at present, to be scarcely so completely developed in all its bearings as to justify a shorter statement of them in this Edition. This remark especially applies to the question. Who are fellow- workmen within the meaning of the rule ? In answering which, great assistance will be derived from a careful consideration of the cases in which the rule itself has been laid down and applied. 1, Hare Court, Temple, March, 1860. PREFACE TO THE FIRST EDITION. There are so few persons not interested in the law applicable to the relationship of Master and Servant, either in one capacity or the other, that the publication of a Treatise upon that sub- ject may seem to most people to require but little apology. With, professional men, however, the case is somewhat different. They have been so long accustomed, when any question of law arising out of the relationship of Master and Servant has been brought before them, to refer, if necessary, to works of general application, such as treatises on contracts, agency, or criminal law, or to digests, indices, and abridgments ; that they may perhaps hardly have felt the want of a separate Work upon the law of Master and Servant. But it is conceived that even pro- fessional men may be more truly said to have become used to the want of such a Work, than not to have felt it. It is, at least, to the existence of a strong impression upon the mind of the Author that such was the case, and that a Book exclusively devoted to the subject he has attempted to elucidate was wanted, combined with a desire on his part to supply what he con- sidered a deficiency in the list of legal publications, that the present Work owes its origin. In it he has attempted to con- centrate all (a) that information upon the subject treated of (a) A Chapter on the Law of Settlement by Hiring and Service was par- tially prepared, but the addition of it would necessarily add much both to the size and price of this Volume. Upon further reflection, therefore, the Author has determined to omit it, and this, the rather, as the subject daily decreases in importance, and questions upon it now seldom arise. See post, p. 1, n. (i). Vm PREFACE TO THE FIRST EDITION. which has liitherto been diffused through many books. How far he has succeeded in his object it is not for himself to deter- mine. Whilst, however, on the one hand, he is well aware that many defects may, and not improbably will, be discovered in the following Work ; on the other hand, he ventuies to express his hopes that it will not be found altogether useless, even to the members of his own Profession ; who, he trusts, will receive it with that indulgence which they are ever wont to accord to the efforts of their younger brethren. And if it shall be found by experience that ihe Author has so far succeeded in his undertaking as to have acted the part of a pioneer only upon a path hitherto, if not altogether untrodden, at least but imper- fectly explored, he will be sufficiently compensated for his labours by the reflection that his leisure hours, which the present abnormal condition of his Profession has rendered more than usually numerous, have not been altogether misspent, whilst devoted to the preparation of this Work. Middle Temple, Trinity Term, 1852. (ix) C N'T E N T S. PAGE Table of Cases Cited .. .. .. .. •• •• xiii Table of Statutes Cited .. .. •• •• ..xxxiii Alphabetical Table, showing the various Statutes appli- cable TO Workmen, &c., in particular Trades, &c., under MANY OF WHICH JURISDICTION IS GIVEN TO MAGISTRATES .. XXXvii Introduction .. .. .. .. .. .. •• •• xli CHAPTER I. The Parties to the Contract — who may contract the Re- lationship of Master and Servant .. .. .. •• 1 — 20 Generally .. .. .. .. .. .. .. •• 1 Married Women .. .. .. .. .. •• •• 3 Infants .. .. .. .. •• -. .. •• 6 Lunatics •• .. .. .. .. .. •• •• 9 Partners . . . . . . . . . . . . . • • • 9 Corporations .. .. .. .. .. .. .. H Bankrupts and Insolvents .. .. .. .• •• 19 CHAPTER II. The Contract of Hiring and Service .. .. 21 — 70 1. The Requisites of the Contract. When Writing necessary — Statute of Frauds .. .. 21 The Stamp 29 2. The Interpretation of the Contract. Admissibility of Parol Evidence .. .. .. .. 32 The Relationship created by the Contract. Partner or Servant .. .. .. .. .. 34 Apprentice or Servant .. .. .. .. .. 44 Tenant or Servant .. .. .. .. .. 45 General Hiring — Yearly Hiring, &c. .. .. .• 46 How far Master bound to find work for Servant .. .. 54 Agreements in restraint of Trade contained in Contracts of Hiring and Service .. .. .. .. .. 57 CONTENTS. CHAPTER III. PAGE The Duties of the Servant to the Master, and the Rights AND Remedies of the Master to enforce the performance OF them .. .. .. .. .. .. .. 71 — 103 1. As between the Master and Servant .. .. .. .. 71 Duties of Servant to Master, and actions by Master against Servant for breach thereof .. .. .. .. 71 Chastisement of Servant .. .. .. .. .. 76 Discharge of Servant — what causes will justify his Dis- charge . . . . . . . . . . . . . . 76 2. As between the Master and Third Persons .. .. .. 86 Of the action for enticing away a Servant .. .. .. 87 harbouring a Servant after notice . . 89 by a Master for the earnings of a Servant . . 90 personal injuries to a Servant 96 Of the common action for Seduction . . . . . . 98 CHAPTER IV. The Duties of the Master to the Servant, and the Rights AND Remedies of the Servant to enforce the performance OF THEM .. .. .. ,. .. .. .. 103 153 Of the Master's duty to receive the Servant into his service and retain him, and the Servant's remedies for breach of such duties .. .. .. .. .. .. .. .. 104 Remedies for Servant wrongfully discharged •• .. .. 108 Of the Master's duty to pay the Servant's wages, and the Ser- vant's remedies to recover them — Master's default .. .. 113 Bankruptcy .. 120 Death .. .. 125 Servant's Default .. .. 127 Death .. .. 129 Of the Master's duty to supply food and medicine to the Ser- vant— Statute 14 & 15 Vict. c. 11 130 Of the Master's duty to indemnify the Servant from the con- sequences of obeying his orders ; and herein of the Master's liability for injuries to Servant .. .. .. .. 133 CHAPTER V. The Liability of a Master to Third Persons for the Acts OF HIS Servant .. .. .. .. .. .. 154 — 221 In cases of Contract .. .. .. .. .. .. 154 Tort — Criminaliter .. .. .. .. .. 174 Civiliter 183 CHAPTER VI. The Liability of a Servant to Third Persons for Acts done on behalf OF HIS Master .. .. .. .. .. 222 — 248 In cases of Contract .. .. .. .. .. .. 222 Tort — Criminaliter 234 Civiliter 241 CONTENTS. CHAPTER VII. The Servant's Character The Character — Defamation False and Forged Characters — Statute 32 Geo. 3, c. 56 PAGE 249—278 249 273 CHAPTER VIII. Offences BY Servants AGAINST THEIR Masters .. 279 — 324 Murder of Master by Servant .. .. .. .. .. 273 Assault on Master by Servant .. .. .. .. .. 280 Burglary by Servant in Master's House . . .. .. .. 280 Servant negligently firing Master's House .. .. .. 281 Stealing in Dwelling-house to the value of £5 .. .. .. 282 Stealing in a Shop, Warehouse or Counting-house .. .. 284 Larceny and Embezzlement by Clerks and Servants .. .. 284 Who is a Servant within 7 & 8 Geo. 4, c. 29 .. .. 300 What is a Receipt by virtue of his Employment .. 304 What is an Embezzlement . . . . , . . . . . 308 Indictment .. .. .. .. ., .. .. 313 Offences by Public Servants .. .. .. .. .. 316 Embezzlement by Servants of the Bank of England .. .. 3J9 Ireland .. .. 320 South Sea Company . . 320 in the Post Office 320 CHAPTER IX. Jurisdiction of Justices in Disputes between Masters and Servants 325—351 Generally— 20 Geo. 2, c. 19 ; 6 Geo. 3, c. 25 ; 4 Geo. 4, c. 34. . 325 Cases provided for by 4 Geo. 4, c. 34 . . . . . . . . 335 Order or Conviction and Warrant of Commitment .. .. 339 Arbitration of Disputes between Masters and Workmen .. 342 CHAPTER X. Combination amongst Masters and Workmen The Statute 6 Geo. 4, c. 129 Observations thereon Conspiracies amongst Masters and Workmen, &c. 352—360 352 .. 357 359 CHAPTER XI. Legacies to Servants 361—369 CONTENTS. APPENDIX CONTAINING THE FOLLOWING STATUTES. PAGE 5Eliz. c. 4 371 (20 Geo. 2, c, 19, will be found at p. 326.) 22Geo. 2, c. 27 381 (6 Geo. 3, c. 25, will be found at p. 329.) l7Geo. 3,c. 56 393 (32 Geo. 3, c. 56, will be found at p. 275.) 42Geo. 3, c. 73 408 (4 Geo. 4, c. 34, will be found at p. 332.) The Schedule to 5 Geo. 4, c. 96 413 {The Act will be found at p. 342.) The Schedule to 6 Geo. 4, c. 129 ... .. 416 ( The Act will be found at p. 352.) 1 & 2 Will. 4, c. 37 (Truck Act) 417 3 & 4 Will. 4, c. 103 (Factories) 427 5 & Ti Vict. c. 99 (Mines and Collieries) 440 6 & 7 Vict. c. 40 (Woollen, &c., Manufactures) 445 7 & 8 Vict. c. 15 (Factories) 458 8 & 9 Vict. c. 29 (Print Works) 493 c, 77 (Hosiery— Tickets of Work) 514 c. 128 (Silk Weavers— Tickets of Work) .. .. 519 10 & 11 Vict. c. 29 (Factories) 521 c. 70 (Print Works— Schools) 522 13 & 14 Vict. c. 54 (Factories) 526 14 & 15 Vict. c. 11 (Protection of Young Servants) 529 16 & 17 Vict. C.104 (Factories) .. ' 531 18 & 19 Vict. c. 108 (Coal Mines) 533 19 & 20 Vict. c. 38 (Factories) 538 ( xiii ) TABLE OF CASES. PAGE Abbott V. Hendricks . • . . 27 Abbotts «;. Barry .. .. 230 Abraham v. Reynolds ..Add. Abrahat's case. . .. .. 287 Acey «. Feriiie .. ..171 Aclaiid V. Buller .. ..216 Adamson v. Jervis .. 134, 244 Addison w. Gandassequi .. 172 ti. Mayor of Preston. . 215 Agar V. Athenaeum Life Assur- ance Co 17, 159 Aischcombe v. Hundred of Snelholme .. .. .. 157 Albro V. Agawam Canal Co. 136, 139, 145 V. Jaquith 137, 140, 152 Aldridgeu. Great Western Rail- way Co. V. Johnson Alexander f. Gibson .. V. Mackenzie V. Sou they . . 185 287 161 169 245 114 162 Alfred v. Fitzjames Allen V. Dunstone 1). Hay ward 201,215,216 V. Rawson . . . . 92 Allison, Re .. .. ..339 Alsop V. Yates. Amor i'. Fearon Andrews v, Askey V. Fugh Appleton V. Binks Archard v. Horner Archer v. James V. Marsh Arkwright's case Arlington, Lord, v. Merrick Armitage v. Insoles .. Armory v. Delamire . . Arnold v. Hamel ■ ti. Mayor of Poole 147 77, 78, 80 .. 103 .. 39 .. 225 108, 113 118, 418 27, 66 92 Ashby V. White Ashersmith v. Drury Asliley V. Harrison Ash more v. Horton 11 111 184 216 12 247 420 86,273 335, 338 PAGE Askew'scase 326,335,339 Re 340 Aspdin t). Austin .. .. 55 Assop »;. Yates. . .. .. 147 Aste y. Montague .. .. 173 Astley D. Weldon .. .. 72 Atcheson «>. Everitt .. ., 178 Athenaeum Life Assurance Co., Re 17,159 Atkin V. Acton .. 79, 128 Atkins t). Banwell .. .. 133 Atkyns v. Kinnier .. 63, 68 V. Pearce .. .. 171 Atlee V. Backhouse 75, 229, 230 Attorney-General v. Allen .. 178 ■ V. Bowman 178 V. Le Mar- chant ■ V. Radloff V. Riddle V. Siddon Attwood w. Munnings 155, Atwood y. Ernest Austen v. Manchester, &c., Railway Co.. . Avery i». Bowden .. 105, Ayre v. Craven . . 178 178 179 178, 179 169 10 186 106 272 Bailey «. Macaulay .. .. 171 -,Re 26,56,340,341,342 Baillie v. Kell Baker, Ej: parte 79, 83, 115, 116 li, 328, 334, 3:58, 339, 340, 342 Bakewell's case .. ..319 Balfour t;. Ernest ,. ..169 Ball, Ex parte 125 Bamfield D. Massey .. ..102 Bamford i;. Shuttleworth .. 228 Bank of Ireland v. Trustees of Evans' Charities .. ..188 United States v. Dunn 172 Barber j;. Dennis .. 88,91 XIV TABLE OP CASES. Barber v. Gingell Baring v. Corrie Barker v. Parker V. Stead PAOE .. IGO .. 157 .. 12,5 .. 171 .. 247 166,171 75, 234 .. 70 159, 304 .. 248 .. 248 .. 42 98, 99, 100 Barnes v. Foley Barnett v. Lambert Baron v. Husband Barret v. Blagrave Barrett v. Deare Barrow v. Arnaud Barry v. Arnaud V. Nesham Bartley v. Ricbtmyer Barton's Hill Coal Company v M'Guire .. .. 143,144 V. Reid 135, 143, 144, 147, 148, 150 Barwick t). Buba .. .. 106 Bass's case .. .. 286,308 Bate V. Hill 102 Bateman v. Mayor of Ashton- under-Lyne.. .. .. 17 Batbe v. Bank of England . . 6 Baxters. Burfield .. ..125 V. Earl of Portsmouth 9 1). Gray .. ..117 V. Nurse 33, 47, 48, 50 Bayley v. Asbton .. ..155 1). Rimmell .. .. 47 V. Wilkins .. ..134 Bayliffe i>. Butterworth .. 134 Bazeley's case . .. .. 297 Beard v. Webb . . . . 3, 7 Beaulieu V. Finglam .. .. 185 Beavan «;. M'Donnell .. 9 Beckham v. Drake ■ V. Knight 19, 20,21, 99, 108, 112 .. 118 ..246 ..103 .. 29 24,47,51,52 .. 20 .. 114 Bedford v. Bagshawe V. M'Kowl Beeching v. Westbrook Beeston v. Collyer Bell V. Carey . . V. Drummond D.Hyde .. .. .. 5 Benjamin v. Porteous.. 35,43 Bennet w. Deacon .. .. 265 J). Moita .. .. 205 Bennett j;. Alcott .. 99,101 V. P. & O. Steam Co. 187 Bent V. Baker 74 Benwell 4). Inns .. 65,70 Bertie v. Beaumont . . . . 45 Berwick, Mayor of, w. Oswald 11 V. Horsfall .. ..113 Betteley v. Reid .. .. 75 Betts «. Burch 68 V. Gibbins .. ..134 PAGE Beverley v. Lincoln Gas Ligbt &c., Co 14,15 Bill V. Bament .. 24,28 V. Darenth Valley Rail- way Co. .. .. . . 17 Birch V. Earl of Liverpool . . 23 Bird t). Brown . . .. .. 156 «>. Holbrook .. ..142 ?>. M'Gabeg .. 115,117 V. Randall 72, 86, 87, 89 Birkettj;. Whitehaven Junction Railway Co. .. 18,187 Birkmyr v. Darnell . . . . 25 Bisbop V. Letts .. .. 30 Blackbam i». Pugb .. ,. 265 Blackie v. Stembridge . . . . 200 Blackstone v. Wilson .. .. 163 Blackwell «;. Pennant .. .. 363 V. Wiswall .. ..187 Blades ?;. Free . . .. 174,223 B\aggv. Sturt 269 Blake v. Ferris 189, 200, 201 V. Lanyon V. Pinfold Blaymire v. Haley Blogg V. Kent .. Blower v. Blower Bloxam ». Elsee Blues, Re Bode, case of Baron de Bogg V. Pearse . Bonar v. Macdonald . Bond V. Pittard Booth V. Clive V, Dean V. Mister Boothroyd, In re Bosanquet v. Corser V. Foster Boson V. Sandford Boulton V. Arlsden V. Crowther . V. Reynolds . Bowcher v. Noidstrom Bowen V. Morris Bowers V. Lovekin Boydell v. Drummond Boyle V. Brandon Bracegirdle v. Heald Bradley v. Waterhouse Bradsbaw v. Hayward Brady v. Giles Braliam v. Watkins Branwell v. Penneck Brashfoid v. Buckingham Bray v. Chandler V. Finch . . Breach v. Ewington 87,90 .. 268 .. 100 28, 104 .. 127 .. 92 356,357 .. xliv 79,215 .. 11 ..36 .. 216 ..363 .. 191 396, 400, 407 ..157 ..157 .. 215 .. 157 .. 216 162, 174 .. 218 .. 226 31,423 22,25 .. 101 22, 24, 104 .. 187 27,47, 115 .. 199 .. 216 326, 336 82 130 7 TABLE OP CASES. XV PAGE Breslin v. Waldron . . . . 364 Briddon v. Great Northern Rail- way Co. . . . . . . 187 Bridge v. Grand Junction Rail- way Co. .. 147,195,196 Bright t). Lucas. . .. .. 91 Britain D. Lloyd .. .. 134 British Bank, Re .. ..188 Plate Glass Co. v. Mere- dith 218,219 Broad v. JollyFe . . 57, 62 Broraage i;. Prosser .. .. 251 Broughton v. Jackson . . . . 76 Brown I). Byrne .. .. 32 . D. Compton .. ..174 «. Croft 79 1;. Mallett .. 135,183 • V.Maxwell .. .. 136 — • D. Wilkinson .. ..186 Broxham f. Wagstaffe. . .. 47 Bryant v. Flight .. ..117 Brydon v. Stewart .. .. 148 Bryson v. Whitehead .. 67, 68 Buckland f. Johnson .. .. 89 Buckley v. Collier . . . . 4 , Ex parte .. ..226 V. Wood . . . . 261 Buller V. Harrison 229, 230, 232, 233 Bulling V. Ellice Bullock V. Jenkins Bull's case Bunn V. Guy Burgess v. Beaumont V. Gray 362 .. 101 .. 297 ..65 ..78 198,203 .. 216 .. 171 156, 241, 246 222, 225 Burling v. Harley Burnside v. Dayrell Buron v. Denman Burrell v. Jones Burton i*. Great Northern Rail- way Co. . . . . . . 55 Bush r. Steinman .. 181,199 Butcher u.South-Western Rail- way Co. .. .. ..187 Butler «;. Basing .. .. 186 ■ V. Wigge .. ..28 Butt V. Great Western Railway Co 185 Butterfield v. Forester 147, 195, 196 Cahill W.Dawson .. .. 165 Caine u. Ilorsfall .. ..34 Callo V. Brouncker .. 77, 78, 79 Cameron v. Reynolds .. .. 21'7 Campbell v. Campbell.. .. 74 V. Hall .. ..229 PAGE Candler v. Candler . . . . 40 Capes t>. Hutton .. .. 7 Capron i;. Balmond .. .. 102 Garden v. The General Cemetery Co 13 Carpenter r. Wall .. .. 103 Carr v. Clarke .. .. ..101 V. Lancashire, &c., Rail- way Co. .. * .. .. 186 Carrington v. Roots . . . . 21 CarrolV Bird 249 Carsan ti. Watts .. .. 91 Carters. Hall .. ,. 2, 114 Cartwright v. Hateley . . . . 75 Cary f. Cary .. .. .. 368 t). Matthews .. .. 13 V. Webster 184, 229, 232 Cast Plate Glass Manufacturers V. Meredith . . .. .. 215 Caswell V. Worth 149, 150, 195,465. 466, 477 Cattell V. Treson Catterall v. Kenyon Cavenagh v. Such Center v. Finney Chamberlain v. Hazlewood Chamberline v. Harvey Chambers v. Bernasconi V. Irwin Chancey's case . . Chandler v. Broughton Chappell V. Poles Chappie V. Cooper Chater v. Beckett Chatfieid v. Cox 186 178 245 212 .. 195 97, 100 .. 86 .. 164 99, 103 .. 366 .. 209 .. 231 .. 7 .. 28 .. 30 Chawiiert). Cummings 118,418,424 Cheap V. Cramond Cheesman v. Exall Cherry v. Heming Chesman v. Nainby Chilcot V, Bromley 42 75,227 22.24 62,68 184, 199, 361, 362 Child V. Affleck 251, 257, 258, 270 Chilton V. London and Croydon Railway Co. . . Chinn v. Bullen Chipchase's case Chippendall v. Tomlinson Chnck, Ej: parte Church V. Imperial Gas Co. .. Clark II. Imperial Gas Light, &c. Co V. Shee .. V. Tailors of Exeter Clarke v. Allatt V. Bury St. Edmunds t). Cuckfield Union V. Earnshaw . . 187 119 287 19 41 15 15 . 2.S0 57,61 . 104 . 46 . 15 . 204 TABLE OF CASES. Clarke v. Roe .. Clayards v. Dethick PAGE ..260 195, 201, 215, 216 Claygate t). Bachelor .. 57,61 Cleaver II. Sarrande .. .. 265 Clegg V. Larter 271 Clerk II. Laurie . . . . 5 Cleworth ti. Pickford .. ..120 Clifford V. Laton .. .. 4 Clutterbuck D. Coffin .. 2,114 Cobb V. Becke 75 Cock V. Wortham . . 97, 101 Cockayne v. Hodgkinson . . 264 Cockerell ';. Aucompte .. 155 Cocking V. Ward . . . . 24 Coe D. Piatt .. .. 150,464 Colburn v. Patmore .. 74, 177 Coleman v. Riches 161, 188, 194 Coles i). Barrow. . .. .. 19 ti. Wright.. .. 229,242 Colgate y. Bachelor .. .. 61 Collen V. Wright .. ..227 Collett r. Foster .. 184,200 v. North-Western Rail- way Co 242 Collier, Re 56 Co]Vmet, Ex parte .. .. 123 Collins II. Blantern .. 27,316 V. Evarjs V. Price. . Colmer v. Clarke Colvin V. Holbrook Colyer, Ex parte ■ V. Mayne ..134 ..108 ..62 ..227 .. 123 .. 101 ..24 .. 147 ..147 . . 68 .. 51 .. 171 250, 257, 260 ..226 Cooch V. Goodman Cook V. Bell . . V. Duncan Cooke V. Calcraft V. Paxton. . V. Tonkin V. Wildes . . V. Wilson. . Coombs V. Bristol and Exeter Railway Company .. .. 163 Coon V. Syracuse and Utica Railroad Company .. .. 136 Cooper t>. Phillips .. ..132 V. Shepherd . . . . 89 1). Slade .. 174,177 V. Wellington . . . . 4 V. VVhitehouse 112, 115,118 Cope u. Doherty .. ..186 W.Rowlands .. .. 27 V. Thames Haven Dock &c. Company .. 14, 18 Copestick, Re .. .. 336, 340 Corking j;. J arrard .. .. 230 Cornfoot ti. Fowke 161,167,188 PAGE Cornwall's case .. .. 280 Cotes i;. Sadler .. .. ..71 Couch V. Steel .. 131, 140, 247 Countess of Plymouth v. Throg- morton .. .. .. 125 Rutland's case .. 32 Salop II. Crompton 72 Coward ?;. Wellington .. .. 269 Cox V. Midland Counties Rail- way Company ..18,161,164 V. Prentice .. ..233 Coxhead t'. Richards .. .. 265 Cranch !;. White .. .. 244 CvRVifoot, Ex parte .. 121,123 Crawshay ti. Thornton .. .. 74 Crisp V. Bunbury . . . . 343 CritMey, Ex parte .. .. 316 Crocker t). Molyneux .. ..jidd. Croft t;. Alison .. 190, 191, 193 Crofton V. Poole .. .. 19 Crofts u. Waterhouse .. 184,187 Crookewit II. Fletcher .. ..106 Crosby ?;. Leng.. .. 98,315 Cross, Ex parte.. .. .. 341 Crosskey w. Mills .. ..75 Crouch's case. . .. .• xlv Crouch V. Great Western Rail- way Company V. London and North- Western Railway Company Crow's case Cuckson V. Stones Cullen V. Morris Cuming v. Hill 186 187 306 85,110 .. 247 •• 7 Cunningham v. Fonblanque 48, 79 Cussons !i. Skinner .. 78,80,83 Cuthbert v. Cumming . . . . 32 Cuthbertson v. Parsons . . 201 Cutler t). Dixon 261 Cutter V. Powell 108, 113, 126, 127, 129 D. Dain v. Wycoff . . Dalyell v. Tyrer ■* Dansey v. Richardson Dartmouth, Mayor of, Daugars v. Rivaz Davidson v. Stanley Davies v. Davies V. Mann V. Vernon V. Williams Davis V. Clarke V. Curling V. Mason V. Nest .. V. Reeves 98, TOO, 103 199,242 ..204 w. Silly 11 ..Add. .. 171 .. 114 ..196 231,244 .98, 101, 102 ..224 .. 216 ..62 ,. 400,401 ..266 TABLE OF CASES. XVU Davis V. Williams Day II. Bream . . V. Robinson Dean v. Branthwaite V. Uogg .. V. Peel PAGE . 86 . 245 . 271 . 199 . 199 100 Degg V. Midland Railway Com pany .. .. , . HI, Add. Delaney tJ. Fox. . .. ..46 De Mattos u. Gibson .. ..70 De Medina r. Norman. . .. 110 De VVahlr. Braune .. .. 3 Dandy v. Henderson . . 64, 65 Dickson t). Earl Wilton .. 266 Dietrichsen ti. Cabburn .. 69 Diggle V. London and Black- wall Railway Company 11, 18 Dinwiddie D. Bailey .. .. 316 Dij)lock V. Blackburn .. .. 91 Ditcbam t). Bond .. 97,100 Dixon V. Bell 96, 97,98, 103 V. Cooper V. Hammond V. Parsons V. Rankin Dobbin v. Foster Dobson V. Collis V. Jones Dodd V. Norris . . Doe V. Baytup . . V. Bircbraore r. Bold .. ■ V. Glover . . ■ V. Goldwin V. M'Kaeg V. Pierce . . W.Walters 156 35 74 .. 257 .. 148 10,119 22, 23 .. 46 98, 101, 102 .. 46 .. 46 .. 13 .. 343 .. 156 ..Add. 13 106 150, 465 ..9, 77 .. 23 .. Ill .. 247 6 196 51 Willi Doel V. Sheppard Donaldson v. Williams Donnellan v. Read Doogood 1". Rose Doswell D. Impey Douglas V. Watson Dowell V. General Steam Navi- gation Company Down V. Pinto . . Downman t;. Williams 161, 188, 225, 226 Doyley ?;. Roberts .. .. 272 Drake v. Beckham .. •• 118 Drury ?;. Drury. . .. .. 7 Dry V. Boswell .. .. 41, 43 V. Davy . . . . . . 11 Duberleyi;. Gunning .. .. 99 Dublin and Wicklow Railway Company u. Black .. ..Add. Duel V. Harding .. 96,97 PAGE Duignan r. Walker . . . . 63 Duke of Beaufort w.Neeld .. 166 Devonshire v. Laforest 173 Norfolk V. Worthy . . 228 Duncan v. Finillater .. 215,216 Dunkley ?;. Ferris .. ..188 Dunn V. Murray .. ..Ill w. Sayles.. .. .. 55 Dunsford v. Ridgwick . . . . 48 Dunston v. Imperial Gas Light &:c. Company . . . - 15 Dyer «;. Pearson .. 165,166 Dynen f. Leach .. ..146 E. Fades t>. Vandeput .. .. 91 Eager v. Grimwood 86, 98. 101, 102 Earl of Hardwicke v. Vernon 316 East Anglian Railway Co. v. Lythgoe .. 80,81,107,119 East .'. Pell 378 Eastern Counties Railway Co. V. Broom .. 13,187,209 East London Waterworks Co. V. Bailey Eastmead u. Witt Eastwood D. Bain Eaton V. Swansea Waterworks Edden v. Read Eden, Ex parte Edmond's case . . Edmondson t>. Machell V. Stevenson Edward v. Trevellick .. Edwards r. Hodding .. V. Lowndes .. Elderton v. Emmens 18 259 227 174 . 228 . 7 . 281 97,99 . 251 .. 76 .. 231 .. 215 47, 55, 108, 109, 125 Ellen 17. Topp 7 Elliot v. Clayton .. ..19 Elliott t;. Nicklin .. 99,102 Ellis V. Sheffield Gas Co. .. 202 V. South-Western Railway Co 195 Elves V. Croft .. .. ..66 Emerson v. Blonden .. .. 154 Emery V. Day .. .. 18 Ernest r. Nicholls .. 9,17,159 Etberington i;. Parrott .. 4 Evans V. Birch .. ..75 Fairlie w. Hastings .. .. 163 Fairman u. Ives .. .. 268 Farebrother v. Ansley .. 243 xviu TABLE OF CASES. PAGE Farmer D. Joseph .. ..101 Farwell v. Boston and Worces- ter llailroad Corporation 136, 140, 152 Fawcett v. Beavres . . . . 90 V. Cash . . 47, 52 Fell V. Knight 182 Fenn v. Harrison 161, 167, 168, 169 Fenton v. City of Dublin Steam Packet Co 187,199 V. Emblers . . . . 23 Ferguson y. Carrington .. 157 Fewings v. Tisdal 108, 112, 113 Fife V. Bousfield Filleul V. Armstrong . . Filiiter «;. Pliippard Finlay v. Bristol and Railway Co. V. Jowie Finucane i;. Small Fischer v. Aide Fitzgerald i>. Dressier . . Fitzherbert v. Mather.. Flemington v. Smithers Flemyng v. Hector Foley V. Parry Foord V. Morley Forbes v. Cochrane V.Marshall .. 379 .. 81 185,282 Exeter .. 13 .. 329 203, 204 .. 77 .. 156 .. 157 .. 97 155, 170 .. 368 .. 113 .. 90 .. 159 88, 98, 99 .. 90 157, Add. 91,92 250, 254 Fores v. Wilson Fosset V. Breer Foster v. Smith V. Stewart Fountain v. Boodle Fowles ti. Great Western Rail- way Co. . . , . . . 186 Frankleton v. Sherlock . . 220 Franklyn v. Lamond . . . . 223 Franks, Ex parte . . . . 5 Frazer v. Bunn . . . . 30 Freeman v. Rosher 184, 192, 200 French ?;. Brooke .. ..112 V. Macale . . 69, 70 t). Sty ring .. 43,44 Friend's case .. .. .. 130 Frith j;. Rotherham .. .. 11 Fuller, Re 366 1-. Wilson .. 161,188 Fyler i'. Fyler . . . . . . 74 Galsworthy v. Strutt Gandell v. Pontigny Gardner v. Moult V. Slade 65,68 .. 108 .. 163 250, 258 PAGE Garrard r. Cottrell . . . . 134 Garth D. Howard .. 163,193 Gartside v. Outram . . . . 261 Gas Light and Coke Co. v. Tur- ner . . . . . . . . 27 Gassett v. Gilbert 257, 260, 266 Gauntlettt). King .. ..184 Gayford v. Nicholls . . . . 201 Geddes v. Wallace . . . . 36 Gee, Ex parte .. .. .. 124 Gent f. Tom])kins .. .. 133 Gerard u. O'Reilly .. ..69 German Mining Co., Re .. 164 Geswood, Re . . 339, 340, 341 Gibbons w. Wilcox .. ..41 Gibbs V. Liverpool Dock Trus- tees .. .. 183, 219, 220 Gibson v. East India Company 15 Gidley v. Lord Palmerston 234, 242 Gilbert «. Fletcher .. 7, 380 V. Schwenck .. 7, 87, 96 Gilbertson v. Richardson . . 210. Giles V. Taff Vale Railway Co. 14, 18, 187 Gilman u. Robinson .. 158,166 Gilpin v. Fowler ,. 257,260 Gilshannon v. Stony Brook Rail- road Corporation .. 136,145 Giraud v. Richmond . . 22, 32 Glenn v. Leith 118 Glover, Ex parte .. .. 123 V. London and North- western Railway Co. . . 201 Godsall V. Boldero .. ..89 Goodall V. Lowndes . . . . 230 Goodman V. Kennell .. .. 193 V. Pocock 108, 109, 110, 113 Gordon, Ex parte . . . . 336 V. Potter . . Add. V. Rolt.. .. 211, 213 Gosden j;. Elphick .. .. 216 Gosling u. Birnie .. .. 74 Goss «. Lord Nugent .. .. 32 Gough, Ex parte .. .. 123 V. Bryan .. 96,195 !;. Tindon .. .. 366 Gould D. Webb 83 Goupy i;. Harden . . . . 224 Grace ^>. Smith .. .. ..43 Graeme d. Wroughton .. .. 27 Grafton v. Eastern Counties Railway Co 118 Grammar r. Nixon .. .. 188 Grangers. Dacre .. .. 110 Grant «. Maddox .. .. 34 V. Norway .. .. 194 Gratland D. Freeman .. .. 173 TABLE OF CASES. XIX PAGE Gray, ;?e .. ,. 340,341 V. Brassey .. .. 148 Great Western Railway Co. v. Goodman .. .. .. 186 187 36 273 226 Rimmell .. .. 185,186 Northern Railway Co. v. Shepherd Green v. Beesley V. Button . . . . I'. Kopke . . V. London General Omni- bus Co. V. Marsden V. New River Co V. Saddington Greenham i'. Gray Greenland v. Chaplin , Greenwayt;. Fisher V. Hard Greenwood, Ex parte Gregory v. Cotterell V. Piper • V. Slowmans Grellier, Ei varte Griffith t). Sel by Griffiths t). Gidlow 142, 143,147, 148 , . 187, Add. .. 367 .. 74 .. 24 ,. 36,37,80 ,. 193, 196 .. 243 .. 227,229 .. 159 ,. 160,174 208, 212, 213 .. 244 .. 124 .. 110 Lewis V. Teetgen Grigby t;. Cox Grinnell c. Wells Groenvelti). Burwell Grylls V. Davies Gunniakers'Co. y.Fell.. Gye V. Felton .. • V. Graziani Gylbert v. Fletcher H. 271 ..100 5 86, 98,99,100 ..247 134,245 61 .. 72 7,380 Haigh V. North Bierley Union Hall's case Hall V. Ashurst V. Hill t). Hollander .. 86,96 V. Janson — — V. Mayor of Swansea V. Smith .. 215, 216, V. Taylor .. .. 18, Hambleton v. Veere . . Hamburgh v. Hull and London Fire Insurance Co. .. Hammond's case .. 340, V. Rogers Hamper, Ex parte Hampson, Ex parte Hanbury v. Ireland 41 122, 16 181 225 5 ,97 32 12 218 215 171 341 205 ,43 125 86 Hancock ik The York, Railway Co. . . Hands v. Slaney Hanson v. Roberdeau .. Hardie v. Addle .. Hardman v. Wilcocks . . Hardy v. Martin V. Ryle . . Hargrave v. Le Breton Harmer v. Cornelius .. Harper v. LuffTiin Harris, Ex parte V. Baker D.Butler V. Carter V. Montgomery PAGE &C. .. 183 .. 7 .. 223 .. 150 75, 227 .. 70 326, 336 .. 251 84, 85 5, 100 123, 124 215, 219 100, 101 2, 114 34, 113 Thompson 250, 252, 259, 263 .. 114 157, 173, 174 . , 266, 269 .. 216 ..87 .. Ill V. Watson Harrison, ats. . . J). Bush V. Vatey Hart V. Aldridge V. Denny . . Hartley v. Cummings 26, 27, 56, 57, 64, 88 V. Harman V. Ponsonby Hartopp, Ex parte Haseler j;. Lemoyne .. Hastings v. Whitley •• Hatfield v. Phillips' .. Hatton V. Kean V. Macready Hawken v. Bourne Hawkesworth ti. Hillary Hawkins w. Twizell Hawtaynew. Bourne Hayes v. Western Railroad Cor- poration .. .. 136, 145 Hayward t. Young Hazard v. Treadwell . . Heald v. Kenworthy . . Healey v. Story . . Heane v. Rogers .• Heath v. Wilson Hedgley v. Holt Helyer v. Hawke Hemmingw; y v. Hamilton Henderson v. Australian Royal Mail Steam Navigation Co. u. Broomhead 109, 112 2, 114 222 192 66 319 95 107 165 378 129 \6i, 171 62 .. 157 .. 158 .. 223 .. 157 .. 191 ..120 161, 162 .. 105 Heraud v. Leafe Herbert v. Reid Hern v. Nicliolls Hesketh v. Blanchard Hesse V. Stephenson Heyhoe v. Burge 16 261 .. 155 ..365 157, 161, 188 . . 35 .. 19 .. 42 zx TABLE OF CASES. PAGE Hibbertv. Hibbert .. .. 3(i8 IWckm, Ex parte .. .. 124 Hickman t'. Cox .. ..44 Higgins V. Pitt 230 — V. Senior IGi, 223, 2J5 Hill «. Allen 91 D.Thompson .. .. 92 Hilliardt). Richardson.. .. 201 Hills t>. Croll 69 Hilton D. Eckersley .. 58,359 Hiiide «. Gray .. .. 57, 67 Hingeston f. Kelly .. -.116 Hinton v. Dibbin .. . . 185 Hiscox V. Greenwood 168, 170, 172 Hitchcock V. Coker 27, 61, 64, 66 Hitchins v. The Kilkenny Kail way Co. Hobson V. Cowley Hochster v. De la Tour Hodgkiiison v. Fernie. Hodgson «;. Johnson V. Scarlett Hodsoll V. Sallebrass . . Holcroft V. Barber V. Higgins Holder v. Cope Holl V- Grirtin . . Hollingworth v. Palmer Holloway u. Abel Holman v. Johnson Holmes' case . . I'. Higgins V. Onion Holt V. Brien . . Horn berg. Ex parte Home V. Bentinck Homer v Ashford Homersham v. Wolverhampton Waterworks (!o. .. .. 16 13 10, 80, 119 .. 105 .. 248 .. 24 .. 250 96, 98 33, 48 .. 118 4 .. 74 .. 129 98, 101, 102 .. 27 .. 39 .. 118 .. 199 4 .. 124 . 268 .. 63 Hooper v. Truscott Hopkins v. Crowe V. Prescott Hopwood, Ex parte I). Thorn Home V. Chandler V, Ivy . . V. Thorn borough Horner t). Ashford V. Fl.ntotf • V. Graves Horsfall y. Handley .. Howard u. Baillie 11. Braithvvaite V. Chapman V. Crovvther V. Wilson .. 251 .. 216 .. 27 473, 474, 478 ..272 Howell V. Batt". . Hubbersty v. Ward .. 7 .. 14 .. 216 . . 60 .. 68 61, 64 ..229 155, 161, 169 .. 168 .. 163 .. 99 .. 362 .. 234 .. 194 PAGE Hubert v. Treherne . , . . 28 Iluggins r. Waydey .. .. 216 Hughes, Z,'.c /)«r/<> .. .. 336 V. Buckland .. ..216 i>. Biidd .. 28,30, 31 t). Chatham .. ..46 I'. Humphreys .. 7 Hulle w. Heightman .. .. 127 Hulse D. llulse .. 117,366 Humble v. Hunter .. ..223 llumfrey i;. Dale .. .. 32 Humphreys. Ex parte 121, 123 Hurilock t. Blacklowe .. 67 Hunter v. Countess Dowager of Berkeley 170 Hurcuin t). Steriker .. .. 113 Hurley v. Baker .. ..228 Hurrell V. Ellis .. .. 274 Hussey i». Pacey .. .. 73 Hutchinson u. York, Newcaf=tle, &c. Railway Co. 137. 140, 141 Hutman v. Boulnois 47, 72, 128 Hutton D. Parker .. 57,61,63 V. Warren . . . . 32 Huzzey t). Field .. .. 187 Hyde y. Johnson .. ..155 I. Illidge V. Goodwin .. ..192 Ingram v. Barnes 31, 118, 326, 423 Ipswich's Tailors' case .. 57 Ireland v. Thompson . . 74, 75, 230 Irwin w. Dearman .. .. 99 Iveson D. Conington .. .. 225 J. Jacklin, In re 332, 337, 341 Jackson, /« ?-e .. .. .. 40 ■ V. Bridge .. ..125 Jacquot «;. Bonra .. 78,112 J;imes ti. Brook .. .. 272 Jeliiott V. Broad .. . . 62 Jenkins ?;. Betham .. .. 84 D.Hutchinson .. 227 V. Morris . . . . 224 Jenness v. Emerson . . . . 8 Jewel r. Stead . . .. .. 63 Jewsbury v. Newbold . . 4 Joel V. Morrison .. . 191, 192 Johnson, Ex parte .. 336, 340 V. Blenkinsopp 32, 52 t). Dodgson .. .. 28 V. Evans . . . . 262 V. Lucas . . . . 5 TABLE OF CASES. XXI PAGE Johnson v. Reid, 326, 335, 336, 340 V. Shrewsbury and Birmingham Railway Co. 72, 106 W.Sumner .. .. 3 Jones, Re 340 D. Beddington .. .. 103 V. Bird .. 215, 216, 218 V. Brown .. 97, 101 V. Downman .. 161, 188 V. Hart .. 163, 184, 185 v. Henley .. .. 365 V. Littledale .. .. 225 V. Waite .. ..27 V. Williams .. ..336 Jordan t;. Norton ,. 168,169 Joseph I'. Cavander .. .. 101 Josephs V. Pebrer . . . . 27 K. Kaye v. Brett 162 Keane v. Boycott . . . . 88 Keegan v. Western Railroad Cofcpany .. .. .. 149 Keir v. Leeman .. .. 316 Kelly V. Mayor, &c. of New York .. .. 184,201 r. Partington 251, 253, 263, 273 Kemble t). Farren .. 68,72 V. Kean ,. .. 70 Kendall v. King .. 18,215 Kendillon t'. Maltby .. ..261 Kent V. Great Western Rail- way Co 216 Kershaw v. Bailey . . . . 267 Kieran v. Sanders . . . . 74 Kine r. Evershed .. .. 216 ■ V. Sewell 267 King V. Boston and Worcester Railroad Corporation 136, 152 I'. Waring . . 250, 263 King's Norton v. Cambden . . 49 Kinnitz D. Surry ., .. 29 Kirby v. Simpson 327, 328, 341 Kitchen v. Shaw 330, 335, 336 Kitson r. Julian Knight u. Barber V. Crockford . . V. Fox 201 V. Gibbs 203, 264 367, 11 29 28 207 273 309 102 36 248 80 63 Knowles v. Compigne L. Lacon 11. Hooper Lacy V. Osbaldiston . . Lake v. Butler.. PAGE Lake V.King .. .. 261,268 Lamb I'. Bui;ce .. .. 133 V. Burnett . . . . 76 V. Palk 193 Lamburn r. Cruden 108,115,122 Lanipleigh V. Braithwaite .. 74 Lancaster w. Greaves .. 326,336 Lane i;. Cotton .. 179,214 V. Ironmonger .. .. 4 Langdale, £j: /)ar. Loveday .. .. 75 Leame v. Bray . . . . . . 207 Lee t;. Bayes . . . • . . 244 1). Robinson .. .. 244 Lees V. Whitcomb 25, 54, 72 Lefevre i;. Lloyd .. .. 224 Leigh i;. Hind .. .. 63 Leighton t;. Wales .. .. 66 Leioir i). Bristow .. .. 120 Lennard v. Robinson . . 225, 226 Leroux D Brown .. 21,23 Le Sage v. Coussmaker . . 366 Levy u. Lord Herbert.. .. Ill Lewis 1/. Campbell .. .. 134 V. Foo; .. .. 96,97 V. Nicholson . . 226, 227 V. Reed 192 D.Taylor .. ..236 Lewson v. Kirk . . . . 73 Ley y, Peter 163 Levcester v. Logan .. .. 186 Lightly «. Clouston .. 91,92 LilJey v. Elwin 47, 51, 78, 108, 128, 335 Lilly V. Hays 234 Limland v. Stephens . . . . 72 Lindsay V. Leigh 326,331,335,340 Lindus v. Bradwell .. 154, 164 Linford v. Fitzroy Lismore v. Beadle Llewellyn v. Winckworth Lloyd V. Blackburn .. Lobb V. Stanley Lockett u. Nicklin Lomax v. Arding London Dock Co. v. Sinott LongtVllow V. Williams Longmeid v. Ilolloway Lord, Ex parte Louth V. Drummond .. 280 112 160 10 28 32 ^82 16 24 242 329 52 xxu TABLE OF CASES. PAGE Lowe V. North -Western Rail- way Co. .. .. .. 13 Lowell V. Boston and Lowell llailro'adCorporationl34, lyO, 201 Lowndes i;. Earl of Stamford. . \'26 Lowry !;. Aikenhead .. .. 2;)1 Lowther v. Earl Radnor . . 32(; Lucas y. Beach 29, 30, 119 V. Beal . . . . 226, 227 V. Bristow .. .. 32 V. Novosilieski .. ..120 Lucey V. Ingram .. .. 205 Ludlow, Mayor of, v. Charlton 11, 14, 15 Lumby v. Allday Lumley v. Gye. . V. Wagner Lush V. Russel Lyde v. Barnard Lygo V. Newbold Lynch v, Nurdin Lyons v. Hyman V. Martin .. 272 ..87 fi9, 70, 72 77, 109, 111 ..275 .. 198 .. 198 .. 119 193, 208, 209 M. Macbeath v. Haldimand . . 222 M'Carthyu. Colvin .. ..230 M'Dougal V. Claridge 265, 267 V. Paterson . . 343 M'Eniry v. Waterford and Kil- kenny Railway Company 137 Macfarlane v. Giannacopulo 158 M'Gregor j;. Lowe .. .. 230 Machu V. South-Western Rail- way Co. .. . . . . 186 Mackenzie v. Macleod 185, 193 M'Keon v. Bolton .. ..201 M'Kone v. Wood .. ..198 Maclaughlin v. Pryor 198, 199, 207, 208, 213 Maclean v. Dunn . . 29, 156 M'Mahon v. Lennard . . 1 M'Manus v. Crickett 193, 194, 208, 209, 210 V. Lancashire, &c. Railway Co 186 M'Millan v. Saratoga and Washington Railroad Co. . . 149 M'Naughton v, Caledonian Railway Co. . . . . Madden v. White Magee v. Atkinson Mahony v. Kekule Mainwaring v. Leslie . Mair v. Glennie Makepeace v. Jackson 136 145 .■ 7 . 225 . 226 4 36, 41 . 92 PAGE Mallan v. May 58, 61, 63, 64, 65, 68 Manby r. Long .. .. 13 D. Scott .. .. 3 i;. Witt .. 259,264 Manleyi). St. Helen's Canal Co. 221 «. Field .. ..Add. Mann v. Barrett .. .. 100 Mansell «J. Thompson . . .. 101 Mare i^. Charles .. .. 224 Maria, case of the .. .. 205 Marsh n. Keating .. .. 315 Marshall D. Lynn .. ..32 t;. Powell .. ..29 t). Button .. .. 4 V. York, Newcastle, &c. Railway Co. Martinez w. Gerber Martin v. Strong V. Temperley . Martins, Ex parte Matthews v. Matthews Maund v Canal Co Maunder V. Conyers .. .v 170 y. Venn .. 97,101 Mayhew v. Suttle . . 45, 46 Mead i;. Hamond .. ..184 Mercer w. Irving .. .. 68 i;. Sparks .. ..251 V. Whall 76, 80, 83, 105 Merryweather v. Nixon 134, 243 Messiter v. Rose . . . . 72 Metcalf D. Bruin .. .. 11 MetcaMe, Ex parte .. .. 116 V. Hetherington 183,219, 220 V. London, Brighton, and South Coast Railway Co. 186 Metzner v. Bolton 32, 52, 53, 111 Meyer «;. Sharp .. ..41 Michael v. Alestree . . 184, 242 Michel I). Brown .. .. 176 Middleton ?;. Fowler .. ..193 Midland Railway Co. d. Daykin 187 242 96,97 .. 267 200, 206 .. 341 .. 366 Monmouthshire 187,212 Mil burn v. Codd Millard v. Kelly Miller v. Aris . . V. Hamilton V. Scare , . Milligan v. Wedge Mills V. Hoi ton Milner v. Field Mires v. Solebay Mitchell V. Crassweller V. Reynolds Mitcheson v. Oliver . Mizen v. Peck . . Moffat V. Parsons 118 .. 423 .. 230 .. 158 .. 247 200, 206, 295 .. 200 .. 118 244, 245 .. 194 57, 60, 61 .. 159 ..3,4 .. 159 TABLE OF CASES. XXUl PAGE . 116 , 116 9 , 173 . 115 3 Moffatt V. Dixon V. Laurie . . Molton i;. Camroux Monk V. Clayton Monkman v. Shepherdson Montague V. Benedict Moore v. Fitchbourg Railroad Corporation . . Morgan v. Birnie Morley v. Gaisford Morris v. Coleman V. Langdale . . Morrison v. Glover V. General Steam Na- vigation Co. . . . . Mortimer t>. Prowett .. .. Moss V. Hall .. Mounsey 2;. Stephenson Mulveiiall!;. Millward Munday t). Stubbs Munro v. Butt Murray v. East India Co. V. Mann 75, 162, 233 ■ V. Moutrie . . . . 76 Muscbamp v. Lancaster, &c. Railway Co 187 Myler ?;. Fitzpatrick .. .. 74 Mytton V. The Midland Rail- way Co 187 187 .. 118 208, 210, 212 ..69 ..273 ..343 196 53 66 31 99 216 118 155 N, Neale, Ex parte .. ..123 u. Turton .. 169,171 Neate D. Harding ., 91,231 Newby u. Wiltshire .. 131,133 Newnham v. Stevenson . . 75 Newsome u. Coles .. .. 173 Newton v. Belcher .. .. 157 ■ V. Ellis .. ..216 V. Holford . . 97, 98 ■ r. I-iddiard .. .. 157 Nias jj. Adamson .. .. 19 Nichols V. Martin . . 73, 89 NichoUs V. Diamond . . . . 224 ■ V. Stretton 27, 28, 64, 67, 68, 69 Nicholson v. Gooch . . . . 230 D. Knowles .. 74 1). Mouncey 214, 215,218 Nickson v. Brohan 73, 157, 166, 173 76 169 215 11 225 Noden j;. Johnson North River Bank v. Aymar North's case North-Western Railway Co. v. Whinray Norton «. Herron Norton v. Powell V. Turvill Nowlan v. Ablett Nurse v. Wills . . O. Oakley v. Portsmouth and Steam Packet Co. Gates V. Hudson O' Byrne v. Burn O'Connell v. Reg. Offley V. Clay . . Ogle V. Atkinson V. Morgan O'Neill V. Wilson Ormond v. Holland Ormrod v. Chadwick Ex parte Osborn v. Jullion Overton v. Freeman Owen V. Bowen V. Gooch Owens V. Dickinson V. Roberts Ozard v. Durnford PAGL . 28 5 . 52 . 5 Ryde .. 202 .. 231 .. 150 .. 360 5 .. 75 .. 363 .. 147 .. 147 .. 339 333, 336 .. 38 202, 207 .. 118 .. 222 5 .. 258 4 Padmore v. Lawrence Padwick v. King Pagani v. Gandolfi Paine v. Strand Union Palethorp v. Furnish Palmer v. Evans Paradice's case Pardington v. South Railway Co. Pardee v. Price Parker v. Bristol and Exeter Railway Co. V. Ibbetson 33, 34, 53, Wales V. Marchant V. Winlow Parnaby v. Lancaster Canal Co 183,216, Parsons v. Winchell . . Parton v. Williams Pasley v. Freeman Paterson v. Gandassequi 172, W.Wallace .. .. Patten v. Rea . . Pattison c. Jones Pauling V. London and North- Western Railway Co. 158, 269 236 108 15 154 160 286 195 13 231 111, 116 365 226 220 184 216 275 222 148 192 253 172 XXIV TABLE OF CASES. PAGE Pawlct II. Burnhnm •• .. 21 Paxton 11. P()i)lui!n .. .. 27 Payne, Es parlt: . . . . ZiS i;. Mayor of Brecon .. 17 V. New Soutli Wales Coal Co 25,26 Paynter y. Williams .. .. l'^3 Peachey v. llowlaiul 171, 195, 202 Peacock v. Peacock . . 35, 1 1 6 Pearce v. Rogers .. 170, 172 Pearham, Ex parte .. .. 353 Pearson r. Graham .. .. 2t2 Pease v. Hirst . . .. . . 11 Pechcll r. Layton .. ..174 Penrose D. Martyn .. .. 224 Perliam, £.r ;jf/r/e .. .. 353 Perkins v. Smith 2t2, 243, 244 Perring r. Harris .. .. 247 Peter V. Compton .. 22,24 V. Kendal .. ..187 Peters I). Fleming .. .. 7 r. Opie .. ..110 Peto V. HafTUo 162 Phelps «. Winchcombe .. 3 Philadelphia, Wilmington and Baltimore Railroad Corpo- ration V. Quigley 14, 187, 266 Philadelphia and Heading Rail- road Corporation v. Derby.. 183 Phillips i;. Clark .. ..186 V. Clift 7, 44, 76, 81 V.Edwards .. .. 186 V. Huih .. .. 319 V.Jones . .• .. 8 Pickard «. Sears .. .. 157 Pickering y. Busk .. 161, 166 Piggot; 1) Eastern Counties lla.Iway Co. .. .. 185 Pilgrim v. Southampton, &c. Railway Co. .. ..216 Pilkington v. Scott 26, 27, 56, 57, 66,88 Pinto V. Santos . . . . 75 Pianche u. Colburn .- 108,113 Plate Glass Co. V. Meredith 218,219 Pole «. Harrohin .. ..27 Poley V. Osborn .. ..86 Polhili V. Walter . . . . 227 Pond «;. Underwood .. .. 230 Popham V. Jones .. .. 10 Pott V. Eyton .. .. 41, 42 Potter V. Faulkner . . ^dd. Potts V. Pluiikett 149 Poulton v. Wilson .. ..31 Powell I'. Bradbury •• 77,111 V. Hoyiand .. ..214 V. Rees .. ..02 Powers V. Fowler . . 26, 28 PAGE . 186 . 167 . 160 . 113 . 154 . 164 Powles V. Hider Precious v. Abel Prescott V. Flinn Preskitt v. Badger Prestwick v. Marshall Price V. Earl of Torrington V. Green .. 28, 64, 68 V. Marsh .. ..163 Priestley v. Fowler 135, 137, 140, 141, 144, 145, 152 Prince of Wales Assurance So- ciety V. Athenaeum Assurance Society 17,159 Pritchard V. Hitchcock .. 74 Procter t'. Sargent Gt, 65, 67 Prugnell v. Gosse 57, 61, 62 Pryce V. Belcher .. ., 247 Puttock I'. Warr . . . . 162 Pybusv, Gibb .. .. 11 Q. Quarman v. Burnett 197, 199, 200, 203, 206, 213, 295, 361 R. Ramazotti V. Bowring 172 8c Add. Randel r. Trimen .. ..227 Randleson V. Murray .. .. 189 Ranger v. Great Western Rail- way 188 Rannie V. Irvine .. .. 67 Rapson V. Cubitt .. 197,201 Rawlings V. Bell .. .. 134 ti. Chandler . . .. 117 Rawlinson v. Clarke . . . . 38 Readv. Coker .. .. 9,216 V. Dunsmore .. .. 80 V. Legard . . . . . . 9 Reade V. Lamb.. .. .. 21 Reavely V. Mainwaring ,. 87 Reed t). Moore . . .. .. 4 Reedie v. L. & N. W. Railway Co. .. 181,184,190,201,207 42 106 3 4 271 69 171 77 Reid V. Hollinshed D. Hoskins V. Teakle Reeve v. Marquis of Conynhain Reignald's case Reindel v. Schell Rennie V. Wynn .. .. Renno v. Bennett TABLE OF CASES. PAGE PAGE Reuter v. Electric Teleg raph R. V. Callaghan .. 301 Co .. 16 — V. Carter ..284 Revis V. Smith.. .. 261 — I). Carr ..301 Rex aut Reg. v. Adey.. .. 302 — V. Chapman.. .. 311 — V. Allen 237, 238 — V. Charlesworth ..238 — V, Almon 177, 179 — V. Cheshunt .. ..45 — V. Althorne .. .. 49 — V. Chillesford .. 7 — V. Ardington .. 48 — V. Christopher ..290 — V. Arlington .. 49 — V. Clapton .. ..304 — V. Arnesby . . .. 7 — V. Cleg .. 336 .. 7 — t). Clerk .. 180 — V. Ashley .. .. 286 — U.Clifford .. .. 175 — V. Aslett ..319 — V. Coggeshall ..48 — V. Aston . . 304, 305, 357 — V. Collinbourn 377, 378, 379 — V. Atkinson .. 301, 308 — V. Cook ..398 — V. Baldwin . . .. 177 — V. Cowpen . . . . 49 — V. Ball .. 358 — V. Crawley . . ..304 — V. Bannen . . .. 174 — V. Crediton . . •44,45 — I'. Barrett .. 183, 237,317 — V. Creed .. 309,310 — V. Barton .. 327 — V. Creevy ..251 — V. Batt .. 360 — V. Cromford.. .. 7 — V. Batty ,. 301 — V. Cross .. 181 — V. Baxter .. 302 — V. Daniel .. ■ 21,87 — V. Bayley 268, 301 — V. Davie ..378 — V. Beacali . . 300, 313 — V. Dean ..180 — V. Beaman .. .. 307 — V. Dedham . . . . 50 — V. Beaulieu .. 2 — V. Delaval .. ..100 — V. Beaumont 306, 307 — V. Deny ..280 — V. Bed well .. 327, 335 — V. Dixon 180,290,358 — V. Beechey . . .. 306 — V. Dodderhill ..50 — V. Bennett . . .. 176 — V. Dolan ..288 — V. Belts . , 238 289, 310 — V. Dukinfield . ..164 — V. BickerstaflF 323, 324 — V. Duffield .. 87,360 -t>. Bigg .. 11 — V. Dunton 2 — V. Bilborough .. 45 — V. Easman .. ..378 — V. Billinghay 33,45 — V, Eccleston.. ..44 — V. Bilton .. 87 — V. Edgmond . . 49, 50 — V. Birdbrooke .. 51 — V. Edingale .. .t 45 — V. Birmingham 49,50 — V. Edmundson ..400 — V. Bishop's Hatfield .. 49 — V. Edwards . . ..238 — V. Bishopton .. 45 — V. Eggington .. 280 — V. Bissex .. 339 — V. Elmley Castle 2 — D. Bleasdale.. 176, 189, 235 — i;. Empingham ..49 — V. Bolton .. 406 — V. Essex .. 289,301 — V. Bootyman .. 314 — V. Evans . . 293, 294 — V. Borrett . . .. 322 — V. Ferguson . . ..360 — V. Brackett . . .. 289 — V. Frampton .. 313 — V. Bradford . . .. 91 — V. Freeman . . ..301 — V. Bradley . . .. 180 — I'. Frome Selwood ..50 — V. Brisac .. 175 — V. Gardner . . ..323 — V. Buckland Denham 49, 50 — V. Garrett .. .. 176 — V. Burton .. 303 — V. Gateshead 49, 50 — V. Bury St. Edmund's .. 133 — D. Gibbs .. 294,303 — V. Butcher . . .. 175 — V. Giles .. 175 — i>. Butler 308, 309 — «. Gill .. 308,378 — V. Button .. 360, 393 , 404, 4.^8 — V. Gillyard .. .. 182,183 — V. Byker 48, 50 — V. Glass .. 293.324 — V. Bykerdike .. 359 — V. Goodbody ,. 293, 301 b TABLE OF CASES. PAGE II. V. Goode . . 287, 307, 308 — V. Goodenough . . , . 2!)3 — t). Goodtellow .. .. 400 — j;. Goodwill .. .. .. 238 — V. Gorbutt 285 — V. Gouche . . . . . . 32'i — V. Gray 280 — V. Great Bowdcn . . . . 48 — V. Great North of England Railway Co 181 — V. Great Wishford . . 41', 4-5 — V. Great Yarmouth . • . . 51 — V. Green — V. Grove — V. Gruncell — V. Guildford — V. Gutch — II. Haines — V. Hall — I'. Hallow — V. Hampreston ■ — V. Hanbury . . — p. Handley . . — V. Harding . , — I'. Harley — V. Harris — V. Hartley — V. Harvey — I'. Hawkins . . — V. Hawtin — V. Haydon . . — V. Hay ward . . — V. Headge — V. Hebb — V. Hedges — V. Helling . . — ". Herstmonceaux .. — V. Hewitt — V. Hey .. 200, 288, 29 — V. Higgins . . — t). Hindringham Hipswell .. 237,293 .309, 310, 311, 318 291 3 .. 177,179 .. 237,241 . 291,301, 312, 313 ..327 .. 51 ..50 ..290 ..288 279, 321. .. 305 39, 302 .. 294 .. 289,307 304, 305, 306 .. 199,297 ..299 .. 297,308 ..309 ..308 .. 336 . . 48 .. 360 301 286 2 — V. Hoare — V. Hobson . . — V. Hodgson . . — V. Holbeck . . — V. Holloway • • — V. Holsvvorthv — V. Hornby — V. Hoseason . . — V. Houseman — V. Huggins . . Add. ..309 .. 309,314 . . 50 283, 281, 291 2 ..289 189, 327, 328 .. 308 174, 302 V. Hughes, 237,295,300,301,306 Hullcoat — V. Hunt — V. Hyde — V. Iglnham — V. Iken 336 313 339 45 45 R. t) Ivens I. Jackson . I. James I. Jarvis I. Jennings . . '. Jenson PAGE .. 182 294, 309 .. 235 .. 176 .. 295 301 Johnson 280, 286, 289, 296, 300, 307, 308, 313, 378 Jones 249, 282, 294, 309, 310, 360 Justices of Cumberland .. 12 Justices of West Riding of Yorkshire . Kenrick . . . Kerr . Kilderby .. . Killingholme . King . King's Lynn . Kingswinl'ord . Ladock . Laindon . . . Lamade . . . Lambert . . . Lambeth . . . Leacroft . . . Leech Leggett , Leonard . . . Lewis , Lichfield . . Lister Little Bolton Lloyd , London , Longnor . . Lonu; Whatton 405 .. 360 .. 290 .. 377 .. 48 .. 360 .. 45 .. 49 .. 125 33, 44 .. 237 312, 318 .. 50 .. 45 .. 301 .. 76 .. 292 .. 336 .. 13 309, 310 .. 44 .. 339 .. 336 .. 7 .. 47 Lord ..8,24,335,336,337 Lovelass .. .. .. 358 . Lovell 297, 300, 308, 317, 322 . Ludlow , Lydd . Lynn . Lyons . Lyth . Macclesfield . M'Knight , M'Gill .. , M'Gregor M'Namee . Manning . . . Martham . . . Martin . Masters . . , Mayor of Stamford Mazeau Mears 133 .. 48 .. 45 .. 288 .. 47 .. 48 .. 236 .. 236 .. 313 294, 295 .. 291 .. 49 .. 102 .. 298 .. 12 .. 175 .. 280 — V. Medley 181 TABLE OF CASES. XXVU n.v. Mellish . . Mence Metcalf .. Michael .. Mills ]\Iinster .. Mitcham .. Moah 275,312, Morfit Murdock . . Miirpliy .. , Murray Mursley . . . Nether Knutsfor . Nettleton.. . Newey . Newton . . Newton Toney . Noake . Norman . . . North Nibley . North owram . Northwingfield . Norton . Norton Bavant . Nunneley . Gates . Odiham . . . Oldland .. . Ossett cum Gaw .Over . Palmer . Parr . Pearson . . . Pease . Peck . Pedly . Pendleton Pershore . . . Plietiieon . . . Pitminster . Pocock . Polesworth . Ponsonby . . .Pool . Potter . Peyser . Prest . Preston . Privett . Puckine'ton . Pucklechurch . Purchase . . . Rainliam • • . Rathl)one . . . Ravenstonedale . Reason PAGE . . 300, 304 ..323 286,289,301 .. 175 .. 293 . . 45 ..50 313, 314, 318 ..290 ..309 ..301 .. 297,307 . . 48 d ..44 .. 303 .. 323 45,48 . . 50 314,315 .. 310 ..49 45, 49 .. 27,33,47 2 . 50 . 336 . 292 . 50 . 133 48,50 . 50 . 175 235 .. 322 181, 238 125,360 .. 181 .. 47 .. 51 .. 2S3 .. 47 . 215, 237 . . 48 .. 45 .. 292 .. 284 .. 289 .. 13 50, 290, 339 .. 290 2 .. 50 .. 314 .. 44 .. 323 . . 49 .. 322 R. V. thorpe 17^ Reed Rees Reynolds . . Richards .. Rickinghall Ridley .. Kipon Roljiiis Rogers PAGE 287,288 45, 322 ..308 290, 291, 342 . . 47 .. 130 .. 7 .. 102 ..407 V. Rowlands 87, 356, 358, 359, 360 '. Rudick 297 ). Saffron Walden . . . . 63 !. St. George, Bloomsbury. . 354 ;. St. Helen's, Auckland 48,49,50 ,'. St. John, Devizes .. 50 '). St. Martin, Leicester . . '48 •J. St. Mary-at-the-Walls, Colchester '}. St. Paul, Bedford V. St. Petrox :;. Salisbury .. '). Sandhurst. . V. Saunders .. V. S award V. Scldesinger V. Scott Seacroft . Selsby Seward , Sharman . Shepherd , Shinfield 2 .. 30 .. 7 .. 322 .. 48 130, 284 .. 293 .. 247 181, 238 .. 45 .. 87 .. 360 .. 275 .. 323 7, 113 V. Smith 131, 287, 300, 302, 306, 308,309 V. Stiowley . . . . . . 305 V. Somersetshire, Justices of 329 i'. Somerton . . .. .. 297 V. Sow . . . . . . 47 0. Spencer .. .. 301,306 V. Squire . . . . • . 300 y. Staffordshire, Justices of 33 1,340 V. Stanbury . . V. Standon Massey . V. Stock V. Stokesley . . V. Stoke-upon-Trent V. Stowmarket V. Sullens V. Swindall V. Taffs V. Taunton . . V. Taylor V. Terrct V. Terrott V. Thames Ditton V. Thomas .. ) 2 306 .. 48 45, 288 .. 47 33, 50 2 ..308 ..241 ..301 ..2 236, 237, 309 ..329 . . 45 .. 114 ..308 TABLE OF CASES. R. r. Thorley .. — V. Thornley — V. Thorpe — t'. Threckingham — V. Thurborn — V. Tib 1)1 e — V. Tordoft PAOE 304, 3()(> .. 3()G .. 307 .. 49 .. 290 .. l;>(J .. 340 — V. Townsend 300, 302, 317, 322 V. Trebilcock — V. Trenwyth — V. Treveniier — r. Truman . . — V. Turner — V. Turvey — V. Twytbrd . . — V. Tyiiemouth — 'v. Ulverstoii — V. Waite — I'. Walbottle — t'. Walker .. — V. Walsh . . — V. Walter — I'. Wantage — V. Ward — V. Warminster — V. Warren . . .. 283 .. 322 .. 291 .. 302 .. 236 .. 49 .. 406 .. 45 .. 48 .. 301 48, 49, 50 40, 303 287, 308 .. 177 .. 91 .. 302 .. 51 .. 133 — V. Watts 183, 298, 301, 3o7 — V. Webb 291 — V. Welch 26, 56, 57, 300,311,336 — V. Welford 79 — «;. Westerleigh .. .. 2 — V. Wejhill 47 — ('.White .. .. 289,301 — V. Whitnash . . . . 28 — I). Whittingham .. .. 289 — V. Wilcock 396, 400, 407 — V. Wilkins .. .. 285, 286 — r. Williams 176,306,309,310, 314 — t'. Wilson .. .. 175,305 — V. Winchcombe . . . . 2 — «;. Winnall .. .. 301,306 — V. Witnesham . . . . 2 — t'. Woodburn and Coke .. 174 — V. Woodlmrst . . . . 49 — r. Worfield . . 47, 48 — w. Wortley 30, 40, 309, 313, 326 — V. Wrangle . . — V. Wright .. — V. Wynn — V. Young Reynell v. Lewis Reynolds i . Bridge Rich V Basterfield Richards i'. Easto — V. Havward ..32 283, 287, 298 .. 321 ..323 166, 171 ..68 .. 181 . . 185,282 .. 71 Richards v. London, Brighton, &c. Railway Co. Richardson v. Cartwright V. Corcoran V. Greese . . 158, 159 .. 215 .. 366 164, 171 325, 337 Ricketts v. Bennett Rider v. Wood Ridgway v. Hungerford Mar . ketCo. .. 51, 79, 80, 83, 128 V. Wharton . . 25 Rigby i;. Hewitt .. 193, 196 Riley i-. Warden 31, 118, 326, 418, 423, 424 Rimel v. Sampayo Risbourg v. Bruckner Robbins v. Fennel] Robert Mary's case Roberts v. Brett V. Ogilby V. Smith V. Tucker 167. 172 .. 75 ..75 86, 96 .. 106 .. 74 116, 117, 147 23, 24 .. 113 .. 286 79, 128 .. 10 .. 366 .. 206 Robins v. Power Robinson's case V. Hindman Robson t). Drummond Roch V. Callen Rodrigues v. Melhuish Roe V. Birkenhead, &c. Railway Co 14,209,213 Rogers v. Clifton . . 251, 252 w. Macnamara .. 274 Rosiere «>. Sawkins .. .. 96 Ross?;. Hill 186 Rowe 2). Roach .. .. 251 llowl-dndson, Ex parte .. 41 Rov/ning?;. Goodchild.. 214,247 Ruck?;, Williams .. .. 221 Ruckley v. Kiernan . . . . 257 Ruddock v. Marsh . . . . 3 Rumsey «. Webb .. .. 256 Rusby D. Scarlett .. .. 158 Russell's Patent, /2e .. ..93 Rust f. Nottidge .. .. 55 Ryan «;. Jenkinson .. .. 53 Ryder v. Mills 1., 8, 409, 467, 469 Sadler f. Evans .. 227,231 ?;. Henlock .. 200,202 V. .Johnson .. .. 30 St. Anne v. Linnaean Society.. 45 Sainter v. Ferguson 27, 62, 66,70 Sammell v. Wright .. ..198 Sanderson w. Baker .. .• 174 Sands «;. Child .. ..241 Santos J). Illidare .. .. xli TABLE OF CASES. XXIX Saunders, Ex parte Saundersoii v. Beli ■ V. Griffiths PAGE . 124 . 162 . ir,6 Saunders v. Wakefield Savage u. Walthew .. .. 73 Savil ('. Kirby .. ..97 Scarman ti. Castell .. 131,132 Schinotti v. Bunistead 219, 247, 248 Schofield V. Schunck .. .. loO Scott I'. Avery .. ..US V. Corporation of Liverpool 1 1 8 V. Mayor of Manchester 216, 221 V. Shepherd .. ..207 Seaman f. Big^ .. .. 271 Seaton v. Benedict . . . . 3 Sellen t;. Norman .. 120,132 Senior v. Ward 147, 149, 150, 196 SevteW, Ej: parte .. .. 6 Seymour v. Maddox Shackell v. Rozier Shackle v. Baker Shanley v. Hervey Sharland v. Loosemore V. Mildon . . Sharman w. Saunders Sharp V. W^aterhouse Sharrod v. L. and N way Co. Shepherd v. Conquest Sherp:old v. Holloway .. Sheridan v. New Quay Co. Shipley v. Todhunter Silk throwster's case • . Silk V. Osborne Simmons v. Wilmot . . Simonds y. Atkinson .. Simons V. Patchett Simpson v. Cooke Simpson »;. Robinson Sims V. Bond .. V. Britain Skinner, Ex parte 135, 139 27,74 .. 68 .. 91 .. 230 230,231 31, 118,326, 423 ..55 W. Rail- .. 211 131 93, 96 . 325 74, 75 . 267 . 293 . 19 133 .242 . 227 . 11 . 256 . 164 74, 75 . 123 Skipp V. Eastern Counties Rail- way Co 146, 149 Sleath t;. Wilson .. ..191 Slim V. Great Northern Rail- way Co 186 Sloane's case .. .. ..130 Smart u. West Ham Union 15,118 Smethurst y. Taylor .. .. 169 Snnth, Ex parte .. 339,342 V. Birmingham Gas Co. 13 V. Bromley .. .. 230 t;. Cartwright . . .. 12 1). Cater ., ..30 Smith V. Gould . ' V. Hayward ■ V. Hodgeskins. PAGE .. 90 108, 113 .. 262 — t). Hopper .. ..216 — V. Hull Glass Co. 156, 159, 172 — ?;. Johnson .. .. 169 — V. L. and Brighton, &c. Railway Co. .. 137 — V. M'Guire 160, 161, 166. V. Neale V. Sleap V. Thomas V. Thompson — V. Watson Smout V. Ilberry Snead v. Watkins 169 23, 24, 28 ..231 .. 251 34,82, 112 . . 42 154, 222, 223 .. 154 Sneliing v. Lord Huntingfield 22 Snowdon ?;. Davis .. .. 231 Somervill v. Hawkins 252, 264 Sommersett's case . . xliii, 90, 91 Sotilichos D. Kemp .. .. 34 Souch V. Strawbridge 22, 23, 24 Southampton and Itchin Float- ing Bridge, &c. Co. v. South- ampton Local Board of Health 221 Southcote V. Stanley 135, 137, 152 Southee !). Denny .. .. 272 Southern v. How 134, 161, 188 Southerwood v. Ramsden 99, 103 South Yorksiiire Railway Co. V. G. N. Railway Co. .. 17 Sowerby v. Butcher . . . . 224 Spain 11. Arnott 51, 77, 85, 128 Spartali v. Benecke . . . . 32 Spears' case . . 286, 287, 288 Speck 2;. Phillips 79,111,115 Speight «;. Oliveira .. .. 100 Spencer's case .. .. 306 Spicer v. Barnard .. 182, 236 Spittle ('. Lavender .. .. 226 Spotswood V. Barrow 79, S3, 110 Sproul V. Hemingway . . 202 Stables v. Eley .. ..198 Stanway i;. Perry .. .. 174 Stead w. Dawber .. ..32 Steel V. South-Eastern Railway Co 201 Steele u. Williams .. .. 231 Stephens v. Badcock 228, 231 ■ V. Elwall 242, 243, 244 Sterry v. Clifton .. ..28 Stevens t. Armstrong .. 190 V. Benning' .. .. 95 V. Midland Counties Railway Co. .. 14, 184, 187, 195 TABLE OF CASES. PAGE Stevenson v. Mortimer . • 227 Stiles r. Granville .. •• 8 Sti.nson V. Hall .. ..120 Stock t>. Harris .. 214,247 Stocker u. lirocklebank 36, 38, 41, 72, 106 t). Wetlderburn .. 69 Stokes r. Grissell .. ..63 Stone V. Cartvvriglit . . . 189 V. Cheshire Railroad Cor- poration 148, 190. 201 V. Marsh .. .. 98, 315 Stowell V. Robinson .. .. 32 Strange v. Lee . . • • 11 Strode «;. Dyson .. -• 162 Stroud V. Watts .. .. 247 Stuart t). Welch .. .. 74 Stubbing II. Heintz .. .. 170 Sturniy v. Sheriff of Middlesex 174 Summers v. Solomon 158, 160, 162 Sutton V. Claik 215, 216, 218, 219 Sweet v. Berining .. 95 V. Lee 25,28 Sword V. Cameron .. 148 Syers v. Jonas .. 32 Sykes v. Dixon . 25, 54, 88 V. Giles .. .. 162 Sylvester, Ej: parte .. 236 V .Want .. 28 63, 65, 66, 68 225 146 74, 173 •275 115, 116 T. Tall V. Rvland Tallis V. Tallis Tanner v. Christian Tarrant v. Webb Tasscll V. Cooper Tatton V. Wade Taylor v. Brewer V. Hawkins 251, 252, 260, 263, 269 r. Laird .. 109, 110 V. Neri .. 86, 273 V. Rowan .. .. 274 Teed v. Beere .. ..316 Ten Tailors of Exeter v. Clarke 61 Tench v. Roberts . . . . 40 Thetford, Mayor of, case .. 11 Thomas u Bishop .. 223,224 V. Edwards .. ..172 j;. Williams 2, 20, 28,108, Thompson v. Bell V. Gibson . V. Havelock 121, 122 .. 158 .. 238 .. 91 158, PAGE Thompson t'. Hervey .. .. 4 V. Ross .. 100, Add. v. Thompson .. 6 Thomson v. Davenport 164, 172, 222, 2.33 Thorne r. Tilbury .. ..75 Tliorogood (J. Bi-yan .. .. 197 Thorold ?;. Smith .. .. 166 Thriipp «>. Collett .. 363,364 Tibbits V. Tibbits .. ..368 Tilson V. Warwick Gas Light Co Timothy v. Simpson Tobin I'. Crawford Todd V. Emly V. Kerrich V. Robinson Tomlinson v. Bentall Toogood V. Spyring Tope I'. Hockin Toj)lis V. Grane Torrence v. Gibbins 07, 98, 101, 102 Townsend v. Windliam 361, 364 Townson i>. Wilson .. .. 231 Trimmer «;. Danby .. .. 366 Trinity v. St. Peter's in Dor- cliester Trottman v. Dunn Trueman v. Loder Tufff. Warman Tngman v. Hopkins TuUidtre i>. Wade Turberville v. Stamp Tiirner's, Seth, case , Turner v. Evans V. Mason V. Robinson 51, 73, 79, 128 Tuson £/. Evans .. .. 260 13 209 161 171 52 166 .. 133 260, 269 .. 230 .. 134 . . 49 ..261 164, 165, 173 ..196 ..231 99, 101, 102 181, 185 3,35, 340 ..69 ..77 U. Underbill «'. Longridge .. 537 United States v. City Bank of Columbus .. .. .. 172 Unvvin t;. Leaper .. .. 178 Valpyr. Mauley .. .. 231 Vangiian v. Taff Vale Railway Co 185 V.Walker .. .. 5 Vaugbton t). Brine .. .. 29 Vere v. Asliby 156 \'errail v. Robinson . . . . 245 TABLE OF CASES. XXXI PAGE Verry t), Watkins .. .. 102 Vicars V. Wilcocks 272, 273, 274 Vollans D. Fletcher .. ..29 Vose V. Lancashire, &c. Rail- way Co 142, 117 W. Wagstaff r. Wilson .. .. 1()3 Wain V. Warlters . . • • 25 Waite'scase 297 V. North Eastern Rail- way Co 197,198 Wakefield 1'. Newbon .. 231 Walker?;. Goe .. 216,220 • V. Guarantee Associa- tion .. .. 73 V. Hunter .. .. 15() V. Mills .. .. 230 W^allis V. Day . . ..60 . I). Warren .. 110,111 Wallwork, £.c /;ar/e .. .. 419 Walrond v. Walrond . . . . 5 Walsh V. Soutliworth . . 3 Walters, Ear parte .. .. 19 Walther tJ. Mess .. ..112 Wanstall t). Pooley .. .. 190 Ward V. Byrne . . 64, 67 «;. Evans .. 166,163 r. Lee 2-18 D.Lloyd .. .. 316 Warner v. Wellington . . 25 Warwick «. Foulkes .. .. 256 Waters «. Brogden .. 168,171 Watkins «. Vince .. .. 161 Watling I'. Walters Watson f. Christie V. Earl Charlemont , Ex parte V. Murrel V. Threlkeld . . Waugh V. Carver Wayland's case Elkins . 133 . 76 . 188 41,43 .. 225 4 35, 43 157, 158 .. 189 Weatherston v. Hawkins 251, 263 Weaver v. Floyd 31, 418, 423, 412 Webster v. Dillon Weedon v. Woodbridge Weeks v. Macnamara Welch man v. Sturgis Welsh V. Lawrence Wenman v. Ash Wennall v. Adney W^entworth v. Tubb 72 25 184 ., 126 .. 190 260, 268 131, 132,133 9 PAGE West?;. Smallwood .. .. 336 Westropp t;. Solomons .. 134 Wharton v. Mackenzie .. 7 Wheatley t;. Patrick .. ..191 Wheeler 11. Haynes .. .. 271 Whitaker v. Howe 65, 67, 69 V.'iiitamore I). Waterhouse .. 74 Whitbread w. Brooksbank .. 229 Whitconib ?;. Wliiting .. 28 White V. Bartlett .. 74,230 ?n Boulton .. .. 186 D. Crisp .. ..183 ?;. Cuyler .. .. 3 w. Mullett .. Jdd. ?;. Spettigue .. 98,315 Whitehead v. Tucket 155, 165 Whitehouse v. Birmingham Canal Co 216 Whitfield V. Lord le Despencer 214, 246 V. S. E. Railway Co. 14, 187 Wickham t). Gattrell •• 316 Wiggett t>. Fox .. 141,142 Wigmore V. Jay .. 139,140 Wildes I'. Norris .. .. 215 Wiles u. Cooper .. 326,327 Wilkin V. Read .. .. 275 Wilkinson ?;. Frasier .. 36 V. Gaston . . Ill \V\]]\ams, Ex parte .. .. 473 V. Birne .. 48, 52 t). Chambers 19, 121 t). Clough .. ..149 y. Corbet . . . . 369 t). Cranston 186,242 ?;. Everett .. .. 234 V. Gardiner . . . . 271 V. Great Western Railway Co. .. .. 186 Williams?;. Hedley .. .. 230 r. Piggott 166,171 „. Stott .. 300, 303 Williamson v. Taylor 26, 54 Willis?;. Child .. .. 106 Wills 1-. Nurse . . . . 5 Wilmot V. Smith Wilson V. Anderton V. Peto V. Robinson V. Tumman .. 159 .. 245 .. 238 256, 267 29, 156 V. Viscount Curzonll8, 119 V. Weller .. •• 327 11. Zulueta .. ..30 Winkfie'd w. Packington .. 159 Winsmore v. Greenbank 88, 99 Winstone D. Linn .. 44,76 TABLE OF CASES. Winterbottom v. Wright Wise V. Wilson 44 Wish V. Small Witliineton v. Herring Wood V. Benson r. Fenwick 7, Woodgate v. Knatchbull Woodin V. Burford Woodward i'. Lander . . Woolf V. Beard Wormell v. Hailstone.. Wright V. Chard . V. Moorhouse . . PAGE 135, 153, 214 , 76,79, 81 .. 41 .. 155 .. 28 8, 327, 341 .. 174 161, 162 .. 268 .. 197 .. 18 ..Add. .. 271 Wright V. Russel V. Wilcox V. Woodgate Wyatt V. Gore .. Y. Yeomans v. Legh Young V. Timmins Zouch V. Parsons 194, 257, PAGE .. 11 209, 210 267, 269 .. 268 74 64 ( xxxiii ) TABLE OF STATUTES. PAGE 13 Edw. 1 (Westminster the Second) 218 23 Edw. 3 xlv 25 St. 1 .. xlvii St. 5 34 cc. 9, 10, 11 36 c. 8 37 cc. 8, 9, 11, 14 1 Rich. 2, c. 7 2' c, 8 12 cc. 4, 6, 8 20 cc. 1, 2 1 Hen. 4, c. 7 2 c. 21 7 c. 14 11 c. 4 13 c. 3 4 Hen. 5, c. 4 2 Hen. 6, c. 14 6 c. 3 8 cc. 4, 8 23 c. 13 3 Edw. 4, c. 5 8 C.2 12 c. 4 17 c. 3 22 c. 1 11 Hen. 7, c. 2 21 Hen. 8, c. 7 22 c. 9 24 c. 13 33 c. 9 34 & 35 c. 1 1 Edw. 6, c. 12 1 Mary, c. 1 . . 5 Eliz. c. 4 .. 13 & 14 Car. 2, c. 12 c. 15 20 c. 6 22 & 23 c. 1 2'J c. 3 97, 279 xlvii .. xlv xlvii xlvii xlvii xlvii xlvii xlvii xlvii xlvii xlvii xlvii xlvii xlvii xlvii xlvii xlvii xlvii xlviii xlviii xlvii xlvii xlvii .. 285 ..279 xlvii xlvii .. xlviii .. xlviii, 279 279,285 xlvii, xlviii, 280, 325, 326, 371 .. 285 ..379 8 xlviii xlviii xlvii . 379 . 376 . 3b9 . 389 . 174 . 21 b5 29 Car. 2, c. 7 5 8i 6 W. & M. c. 7 Will. 3, c. 12 8 & 9 c. 30 c. 36 9&10 c. 7 c. 11 1 Ann. St. 2, c. 18 5 c. 14 .. 6 c. 31 .. 9 • c. 30 . . 12 St. 1, c. 18 St. 2, c. 3 12Geo. l,c. 34 .. 3 Geo. 2, c. 29 13 c. 8 15 c. 13 .. 20 c. 19 . 22 — 23 24 27- 29 - 31 - 6 Geo. 3, 0. 25 c. 27 c. 44 c. 46 c. 12 c. 11 c. 44 c. 6 c. 33 c. 11 12 14 15 17 c. 73 c. 44 c. 78 c. 28 c. 55 c. 56 ..377 .. 21 ..376 . . 389, 445 .. 176 ..376 381,445 ..236 ..185 ..446 ..376 ..377 390, 407, 446 ..376 .. 381,446 297, 319, 320 xlix, 325, 326, 332, 334, 336, 339, 341 381, 393, 394, 407, 446 ..377 . . 40 ..406 ..320 ..459 xlix, 326, 329 xlviii xlix, 326, 334 xlix, 325,326, 327, 329, 330, 332, 334, 339 ..185 ..384 185, 281, 282 xliv .. 377 325, 332, 384, 385, 386, 387, 388, 389, 393, 416 ..320 ..446 ,. 249,275 xlix, 328, 329 .. xlix, 328 .. 319 ..376 TABLE OF STATUTES 35 Geo. 3, c. 36 c. 37 c, ■ c, 39 c. 41 42 49 50 51 52 5;5 54 56 57 58 59 CO c. I «j2Geo. 4, 3 c. 4 c. 184 22 46 123 56 79 85 Ixxxvi , 46 73 .. ,109 ., , 59 80 143 40 ,96 ., 107 139 19 ,68 ,51 . 66 32 7&8- 18 66 95 96 16 63 125 129 46 64 27 29 30 52 Ixxv, 14 PAGE .. 29 .. 180 .. 319 .. 358 .. xliv 313,358 39, 2!)7, 299, 300, 301, 302, 303, 319 ..205 . . 1,8, 529 ,. 408,431,434 372, 376, 377 .. 316 ..376 .. 322 . . xlviii, 375 . 376,377,379, 380 .. 376 8 313,358 ..2+7 .. 384,396 .. I. .. ). ..376 .. 400 455, 516,520 xlix, 328, 332 xlix, 24, 128,325, 326, 327, 329. 332, 333, 335, 336, 337, 339, 340, 341, 537 . 327, 473, 502 xlviii ..352 , • xlviii, xlix, 325, 312, 413,514, 516, 519 20,121,123,124 .. 1. ..205 , . xlviii, xlix, 352, 357, 359, 393, 416 .. 301 131,309 285, 296 .. 176, 199, 282, 284, 295, 296, 297, 298. 299, 300, 301, 308, 312, 313 .. 235,360 ,. 182 .. 206 ..275 PAGE 9Geo. 4, c. 31 .. 97,279,280, 376, 393 10 c. 34 .. 279,280 c. 51 .. .. 1. c. 52 xlix, 325. 332 c. 55 .. 473, 502 11 Geo. 4& 1 Will. 4, c. 66 ,. 320 c. 68 .. 185 1 & 2 Will. 4, c. 32 c. 36 c. 37 2 & 3 3 & 4 c. 39 c. 4 . c. 45 c. 62 c. 15 c. 42 ., 182 .. 393 , xlix, 31,118, 326, 393, 405, 417 ]., 438 297,312,316, 317, 322 46, 257 ..282 93,95 .. 35, 74,89, 92, 102, 112 ... 248 ..180 c. 51 .. C.53 .. c. 63 .. .. 8 c. 103 1., 8, 409,411, 427, 458, 459, 471,494, 521, 526, 531 4& 5 5 & 6 6 Si 7 c. 1 c. 22 c. 44 c. 76 c. TO c. 76 c. 76 7 Will. 4 & 1 Vict. c. 36 c. 67 c. 89 c. 90 3 & 4 4 & 5- 5 & 6- 2 & 3 Vict. c. 58 c. 71 ■ c. 93 c. 84 c. 85 c. 97 c. 56 C.7 c. 28 c. 45 c. 55 c. 76 c. 99 c. 122 c. 18 c. 40 c. 85 c. 86 6 Si 7- 8, 429 .. 126 .. 282 1, 8, 118 .. 342 12,505 118, 177 . 320, 322 , 342, 343 281 , 282, 296 .. 291 353, 354 .. 302 .. 354 .. 238 319, 320 xlix, 328 .. 320 94,95 .. 239 478,505 8, 440 121, 125 .. 257 332, 381, 393, 404, 407, 445 ..35 ..274 c. 96 74, 176, 177, 182 TABLE OF STATUTES. XXXV 7 & 8 Vict. c. 15 8 & 9 9& 10- lO&ll- 11&12- c. 21 c. 84 c. 101 c. 110 c. 112 c. 16 c. 20 c. 29 •c. 77 c. 109 c. 128 c. 18 c. 24 c. 40 c. 93 c. 95 c. 29 c. 70 c. 42 C.43 12&13- 13&14- • c. 44 c. 46 ■c. 63 c. 88 c. 103 c. 106 c. 54 c. 61 c. 97 PAGE 1., 8, 409, 411, 427, 428, 429, 430,431, 433, 434, 435, 436, 437, 438, 458, 494,521, 526, 527,528,531, 538 .. 29 185, 282 8, 529 17, 159 .. 30 16,239,241 .. 239 8, 409, 411, 493 348, 514 xlvii 348, 519 499, 504 .. 282 427, 458, 480 138, 139, 141 8,101 1., 8, 409, 427 458, 466, 468, 521, 526,531 , 499, 509, 522 .. 2S0 216, 325, 327, 328, 331, 339, 354, 356, 384, 407, 412, 473 ..357 .. 174 .. 116 ..324 ..302 .. 2, 121, 123, 124, 125 ]., 8, 409, 427, 428, 429, 458, 466,467.468, 469,475,479, 526,531 8, 119 . . 29 13 & 14 Vict, c, 14&15Vict.c 15&16- 16&17 .100 .11 35 55 99 , 100 76 Ixxvii 46 69 . 104 17&18- 18&19- 19&20- 20 & 21- PAGE ..533 l.,8, 130,529 8 ..280 97,178 174, 285, 295, 313,314, 315 .. 102 8,119 .. 240 21&22- 22&23- 107 129 31 83 102 , 103 , 104 . 120 122 . 32 96 , 108 . 122 . 38 ,46 47 , 3 , 14 54 62 80 85 clvii. 87 4 5 32 34 cxxxiii l.,8, 409, 427, 428, 429, 458, 469, 521,526 531 8, 178 .. 205 185, 186 31, 313 .. 177 .. 220 8,29, 129, 31,186,205 .. 30 .. 178 .. 291 178, 179 150, 440 533 .. 241 , 8, 427, 458, 465, 466, 472, 476, 526, 538 ..342 16, 17, 159. 224 282, 317, 319, 320, 321, 324 17,159 293, 303 .. 178 17,159 6 .. 119 .. 177 128,333 .. 129 .. 317 352, 358 8,206 ( xxxvii ) ALPHABETICAL TABLE. SHOWING THE VARIOUS STATUTES APPLICABLE TO WORKMEIT, &C. IN PARTICULAR TRADES, &C. ; UNDER MANY OF WHICH JURIS- DICTION IS GIVEN TO MAGISTRATES (a). Artificers, Handicraftsmen, Miners, Colliers, Keelmen, Pitmen, Glassmen, Potters, Labourers and Servants in Husbandry. 20 Geo. 2, c. 19, post, p. 326. 6 Geo. 3, 0. 25, post, p. 329. 4 Geo. 4, c. 34, jBMf, p. 332. Ballastmen (except Trinity Ballastmen). See Bargemen. Bargemen, Lightermen, Watermen, Ballastmen (except Trinity Ballastmen), Coalwhippers, Coal Porters, Sailors, Lumpers, Riggers, Shipwrights, Caulkers or other labourers who work for hire in and upon the River Thames, or the clocks, creeks, wharves, quays or places adjacent, not being in the city of London or the liberties thereof, and the Owners, Masters or Commanders of Vessels, or their Agents, on the said river, or the docks or creeks thereunto adjoining;, or the Owners, Wharfingers or Occupiers of such wharves or quays, or their Agents or other Eii.ployers; respecting wages or money due to such labourers for work or loss of time, whether the same persons be employed for any certain time or in any other manner. 2 & 3 Vict. c. 71, s. 37. Bone and Thread Lace Manufacturers. 19 Geo. 3, c. 49, ss. 3, 4 ( Rest repealed by 1 & 2 Will. 4, c. 36). Boot and Shoemakers. See Leather and Shoemakers. Breeches Makers. See Leather and Tailors. Calico Printers. 6 Geo. 3, c. 25, post, p. 329. 4 Geo. 4, c. 34, post, p. 332. Capmakers. See Hatmakers. Caulkers. See Bargemen. Chimneysweeps. 3 & 4 Vict. c. 85, post, p. 8, note {I). Clock and Watchmakers. 27 Geo. 2, c. 7. Clothiers. 7 Jac. J, c. 7. 14 Geo. 3, c. 25 ; And see Woollen Manufacturers. Coal Mines Inspection. 18 & 19 Vict. c. 108, post, p. 533. Coal Porters. See Bargemen. (a) The Truck Act, 1 & 2 Will. 4, c. 37, post, p. 417, apiilies to most trades. See sect. 19. A'XXvIii TABLE OF STATUTES APPLICABLE TO WORKMEN. CoALWIIiri'ERS. H & 15 Vict.c. 78, s. 24. 17 & 18 Vict. c. 10+, s. 188; And see Bargemen. Collieries. 5 & 6 Vict. c. 99, post, p. 440. Colliers. See Artificers, Miners and 40 Geo. 3, c. 77 (except sects. I and 5, which were repealed by 7 & 8 Geo. 4, c. 27, and other provisions sub- stituted by) 7 & 8 Geo. 4, c. 29, s. 37, and c. 30, s. 6. Cotton Manufatories. See Factories, Hosiery and 1 Ann. St. 2, c. 18 (made perpetual 9 Ann. c. 30). 13 Geo. 2, c. 8. 22 Geo. 2, c. 27. See Appendix, p. 381. 1 1 Geo. 3, c. 44. 17 Geo. 3, c. 56. See Appendix, p. 393. Dyers and IIotpressers. 22 Geo. 2, c. 27. See Appendix, p. 381 (sect. 12 was partly re- pealed by 6 Geo. 4, c. 129, post, p. 352, and 9 Geo. 4; c. 31 ; and as to wages by 1 & 2 Will. 4, c. 3t), see c. 37, post, p. 417). 17 Geo. 3, c. 5G. See sect. 17, Appendix, p. 404. (This Act was not repealed as to Dyers by 6 & 7 Vict. c. 40, Appendix, p. 445. See R. V. Button, 11 Q. B. 941). Factories. 42 Geo. 3, c. 73. Appendix, p. 408. 3 & 4 Will. 4, c. 103. Appendix, p. 427. 4 & 5 Will. 4, c. 1. Appendix, p. 429, note. 7 & 8 Vict. c. 15. Appendix, p. 458. 10 & 11 Vict. c. 29. Appendix, p. 521. 13 & 14 Vict. c. 54. Appendix, p. 526. 16 & 17 Vict. c. 104. Appendix, p. 531. 19 & 20 Vict. Q. 38. Appendix, p. 538. Felt. See Hatmahers. Flax. 22 Geo. 2, c. 27. Appendix, p. 381. 14 Geo. 3, c. 44. 17 Geo. 3, c. 56. Appendix, p. 393. And see Factories, Hosiery, Ropeworks. Fur. } 22 Geo. 2, c. 27. Appendix, p. 381. Fustian./ 17 Geo. 3, c. 56. Appendix, p. 393. Glassmen. See Artificers. Glovemakers, See Hosiery and Leather. Hackney Carriages. Disputes between Proprietors and Drivers. 1 & 2 Will. 4, c. 22, s. 29. 6 & 7 Vict. c. 86. 13 & 14 Vict.c. 7. 16& 17 Vict.c. 33. Hair. See Mohair. Handicraftsmen. See Artificers. Hatmakers. 22 Geo. 2, c. 27. Appendix, p. 381. 17 Geo. 3, c. 11. 17 Geo. 3, c. 55 (as to sects. 3 and 4, see 6 Geo. 4, c. 129, post, p. 352). 17 Geo. 3, c. 56. Appendix, p. 393. table op statutes applicable to workmen. xxxix Hemp, Manufacturers of Hemp, or Hemp mixed with Wool, Fur, Flax, Mohair or Silk. 2' Geo. 2, c. 27. Appendix, p. 381. 14 Geo. 3, c. 44. 17 Geo. 3, c. 56. Appendix, p. 3f)3. And see Factories, Hosiery, Ropeworlcs. Hosiery. Persons engaged in the manufacture of woollen, worsted, linen, cotton, flax, mohair or silk materials in, on, or by the stocking frame, warp machine, or any other macliine employed in the manufacture of framework, knitted or looped fabrics, and every trade, occupation, opera- tion or employment whatsoever connected with or incidental to the manu- facture of stockings, gloves and other articles of hosiery. 6 & 7 Vict. c. 40. Appendix, p. 445. Tickets of work (pursuant to 5 Geo. 4, c. ^6, s. 18), 8 & 9 Vict. c. 77. Appendix, p. 514. Hotpressers. See Dyers. Husbandry, Servants in. See Artificers. Note. — 1 & 2 Will. 4, c. 37, does not apply to servants in hus- bandry : see sect. 20, post, p. 423. Iron. 22 Geo. 2, c. 27. Appendix, p. 381. 17 Geo. 3, c. 56. Appendix, p. 393. Japanned Goods. 1 & 2 Will. 4, c. 37. Appendix, p. 417. Jute. See Ropeworks. Keflmen. ) „ A .■/: T> ™ T > See Artificers, Banremen. Labourers.J '' ° Lace. See Bo7ie and Thread Lace Mamifacturers. Leather— Manufacturers of Leather Breeches, Gloves, &c. 1 Ann. Stat. 2, c. 18, made perpetual 9 Ann. c. 30. 13 Geo. 2, c. 8, s. 4. 22 Geo. 2, c. 27. Appendix, p. 381. 17 Geo. 3, c. 56. Appendix, p. 393. Lightermen. See Bargemen. Thames, 22 & 23 Vict. c. cxxxiii. Linen. 22 Geo. 2, c. 27. Appendix, p. 381. 14 Geo. 3, c. 44. 15 Geo. 3, c. 14. 17 Geo. 3, c. 56. Appendix, p. 393. 22 Geo. 3, c. 40. C & 7 Vict. c. 40. Appendix, p. 445. And see Factory, Hosiery. Lumpers. See Bargemen. Mills. See Factory, Silk. Miners. See Artificers, Colliers. As to Women and Children employed in Mines, 5 & 6 Vict. c. 99, Appendix, p. 440. IX Cornwall. 2 & 3 Vict. c. 58, s. 1. Devon. 18 & 19 Vict. c. 32, s. 28. Mohair. See Hemp, Hosiery, Linen. Xl TABLE OP STATUTES Al'PLICABLK TO WORKMEN. Papekmakers. 3G Geo. 3, c. Ill, was repealed, 6 Geo. 4, c. 129. Pitmen. See Artificers, Colliers, Miners, Tinmen. Potters. See Artificers. Printworks, Employment of Women and Children in. 8 & 9 Vict. c. 29. Ap])endix, p. 493. 9 & 10 Vict. c. 18. Ajjpendix, p. 504, note (x). 10 & 11 Vict. c. 70. Appendix, p. 522. Riggers. See Bargemen. RoPEWoRKs. Certain Ropeworks declared not to be within the Factory Acts. 9 & 10 Vict. c. 40. Appendix, p. 458, note {t). Sailors. ) See Bargemen. Shipwrights. J " Shoemakers, Journeymen. 9 Geo. l,c. 27. Silk. See Factory, Hosiery and, 14 & 15 Car. 2. c. 15 ) 20 Car. 2, c. 6 > as to Throwers, Winders and Doublers. 8 & 9 Will. 3, c. 36 ) (The 13 Geo. 3, c. 68 ; 32 Geo. 3, c. 44, and 51 Geo. 3, c. 7, were repealed, 5 Geo. 4, c. 66). 22 Geo. 2, c. 27. Appendix, p. 381. 14 Geo. 3, c. 44. 17 Geo. 3, c. 56. Appendix, p. 393. • Weaver's Ticket of Work (pursuant to 5 Geo. 4, c. 96, s. 18). 8 & 9 Vict. c. 128. Appendix, p. 519. Steel. See Iron. Stockings. See Hosiery. Tailors. 7 Geo. 1, stat. 1, c. 12, ss. 4, 6, 9, 10. Rest repealed, 6 Geo. 4, c. 129. Tinners in the Stannaries. 20 Geo. 2, c. 19, post, p. 326. (See 27 Geo. 2, c. 6). 4 Geo. 4, c. 3i; post, p. 332. Tow. See Hemp and Ropeworks. Watchmakers. See Clockmakers. Watermen, Thames. See Bargemen. 22 & 23 Vict. c. cxxxiii. Woollen and Worsted Manufactures. See Clothiers, Factory, Hosiery. 12 Geo. 1, c. 34, ss. 2 and 5. (13 Geo. 1, c. 23, was repealed, 3 & 4 Will. 4, c. 28). 22 Geo. 2, c. 27. Appendix, p. 381. 14 Geo. 3, c. 44. 15 Geo. 3, c. 14. 17 Geo. 3, c. 11. In the counties of York, Lancaster and Cheshire. 17 Geo. 3, c. 56. Appendix, p. 393. 22 Geo. 3, c. 40. ( "li ) INTRODUCTION. In treating of the Law applicable to the relationship of Master and Servant as it exists in England at the present day, it seems to be unnecessary to enter into any discussion of the various opinions which have been expressed by different authors as to the first origin of that relationship (a) ; for since it is obvious that, in the complicated intercourse of modern society, a great proportion of the business of human life must be carried on through the instrumentality of others, and it is also clear that slavery does not now {b) exist, in any shape, in England, where every man is, and (according to that memorable sentiment ex- pressed in the will of Alfred the Great) it is fit that every Englishman should ever remain, as free as his own thoughts, it seems to follow inevitably, not only that the relationship of master and servant must exist, but also that wherever it does exist in this country it must be by virtue of some agreement, either express or implied, between the parties. Puffendorf (c), too, refers its first origin to contract : he says, " the fiist rise of servitude is owing to the voluntary consent of the poorer and (a) The curious on this subject cipal English exports. Strabo, 1. 4 may consult Putf. de Jure Nat. ac p. 199 (ed. Paris, 1620); Barr. on Gent., lib. 6, cap. 3, where various Stat. 274; Russ. Mod. Eur., note to opinions are discussed ; and see Co. P. S. to Letter xx. Now, no action Litt 116 6; Bl. Com. vol. i. ch. 14; can be brought in England for the Encyc. Brit. tit. "Slavery." Grotius noncompletion of a contract for the divides servitude into perfect and purchase of slaves, even in Brazil, imperfect, and, amongst the latter, Saniosv. Illidge, 28 L. J., C. P. 317. classes mercenarii: — "Inter quos," This case now stands over for judg- he says, " ii qui in Anglia appien- ment in the Exchequer Chamber. tisii dicuntur durante distiplinae suae (c) Puff. lib. 6, cap. 3, sect. 4. tempore, proxime ad servilem con- Blackstone (vol. i. cb. 14), says ditionem accedunt," lib. 2, cap. 5, "The relationship of master and sec. 30 ; and M. Barbeyrac, in his servant is founded in convenience" notes, refers to Thorn. Smith de lie- and he evidently means, that con- publ. Anglic, lib. 3, cap. 10. venievce induces men to enter into (6) During the Anglo-Saxon the contract, whence the relationship times, slaves were one of the prin- arises. Xlii INTRODUCTION. more helpless persons, and is founded upon that common form of contract -jDo, ut facias." But, whatever its origin, servitude, in some shape or other, has elearly existed from the remotest antiquity ; and without inquirint;- into the condition of the slave amongst the ancient Grecians and Romans, which might be considered irrelevant to the object more immediately in view in the following pages, it may be convenient to offer a few remarks upon the state of the slave, or vilein, in this country, whose condition had most of the incidents of slavery, and to trace the progress of English legis- lation with reference to that class of persons, commonly called servants and labourers, who in most respects supply the places formerly occupied by vileins, though their condition is far supei-ior. Both among the German Saxons and among the Anglo- Saxons slaves or vileins were divided into two classes, — house- hold slaves (). But it is not necessary, in order to agency, render him liable, to show that such authority was expressly given to the wife. It is sufficient if it can be implied from cir- cumstances. In all cases the question whether or not she had authority to bind him is one proper for the consideration of a {k) Phelps V. Winchcomhe, 3 & N. 178. Bulstr. 77 ; Walsh v. Southworth, (o) lyhite v. Cuyler, 1 Esp, 6 Exc. 150 ; S. C. 2 L. M. & P. 200; S. C. 6 T. R. 176. 91. (p) Ma7iby V. Scott, Montague (l) Roll. Abr. 591, tit. " De- v. Benedict, Seaton v. Benedict, putie." 2 Smith's L. C. 245 ; Mizen v. (m) R. V. Guildford, 2 Ch. 284. Pick, 3 M. & W. 481 ; Chit, on As to how far a married woman Contr. 152; Retd v. Teakle, 13 may act as a feme sole in the City C. B. 627 ; Ruddock v. Llarsh, of London, see Beard v. Webb, 1 H. & N. 601 ; Johnson v. Sum- 2 Bos. & P. 93. net, 3 II. & N. 261 ; S. C. 27 (7j) De Wahl v. Braune, 1 H. L. J., Exc. 341. b2 THE PARTIES TO THE CONTRACT. The pre- sumption of which may be rebutted. Power of husband to take advan- tage of wife' contracts of hirins. jurj' {q) ; and, so long as husband and wife cohabit, it will be presumed that siie had authority to hire such servants as were uecespary or suitable to the condition in life of her husband, and he will be liable to pay their wages {r). When they do not cohabit the presumption is rather the other way, viz., against the husband's liability upon his wife's contracts (s). But in both cases the presumption may be rebutted : in the former case, by evidence tiiat the husband had expressly forbidden his wife to hire the servant, and the servant knew that he had done so(/;; or by showing that, during his temporary absence, he allowed and paid his wife an adequate sum for the payment of all necessary expenses, and that the servant knew that he did so {u) : in the latter case, by showing that the wife was not reasonably provided for, considering the circumstances of the husband {x). For if, when husband and wife are separated, she receive, either from her husband or any other source (y), an adequate sum for her separate maintenance, she has no implied authority to pledge her husband's credit, and in such case it is not necessary to prove that the party trusting the wife had notice of her separate maintenance in order to exempt the husband from liability (z). But when a married woman is separated from her husband, she does not thereby regain the capacity to enter into contracts which will be binding upon her as a feme sole, even though the separation be by deed, and therefore, although, in some such cases, the husband is not liable, yet no more is she ; parties entering into contracts with her, under such circumstances, trust to her honour (a). So, on the other hand, the husband may take advantage of any contract of service entered into by his wife; and therefore, ; where a married woman enters into service her husband is the person to whom her wages should be paid, as he is entitled to the profits resulting from her work and labour, and she cannot, in general, even join him in an action upon a contract made during the marriage for her work and labour (Z*), though it is {q) Lane v. Ironmonger, 13 M, & W. 368. (r) See Etherington v. Parrott, 1 Salk. 118; Jewshury v. Neiv- hold, 26 L. J., Exc. 247; and cas. cit. 2 Smith's L. C. 283. This presumption of agency arising from cohabitation is not confined to the case of a lawful wife ; it extends to the case of a woman with whom the defend- ant cohabits, and whom he allows to assume his name, al- though not his wife, Watson v. Threlkeld, 2 Esp. 637. («) Reed v. Moore, 5 C. & P. 200 ; Ozard v. Darnford, 1 S. N. P. 294 ; Maimvaring v. Leslie, M. & M. 18 ; Clifford v. Laton, M. & M. 101. (0 Etherington v. Parrott, uhi supra. {u) Holt v. Brien, 4 B. & Aid. 252. {x) Clifford v. Laton, M. & M. 101. {y) Ibid. But a pension re- vocable at pleasure is not a sufficiently stable fund for the ])urpose, Thompson v. Hervey, 4t Burr. 2177. (?) Mizen V. Pick, 3 M. & W. 481; Holder v. Coj}e, 2 C. & K. 437 ; Reeve v. Marquis of Cony ng- ham, 2 C. & K. 444. (a) Marshall v. Rtitton, 8 T. R. 545. (i) Buckley v. Collier, 1 Salk. 114. And see Cooper v. Welling- ton, 7 C. & P. 531, which was an action brought by a husband alone, who was separated from MARRIED WOMEN. 5 said she tnay do so where she is the meritorious cause of action, as where the cause arises from her personal labour and skill (c). And an admission by the wife that her wages have been paid Payment to would not be evidence against the husband in an action by him ""^^ vfhen an for her wages ((/). Nor, indeed, would the fact of actual pay- actirn^by ment to the wife be any answer to such an action, unless she husband for ^vas authorized by him to receive it(e). her wages. There is, however, one case (f) in which it was held that a Harper v. married woman, who was residing with her father, having "ff'"'- been seduced, the father might bring an action against her seducer, although it was objected that the action was founded on loss of service ; and the daughter being a married woman, she could not enter into a valid contract of service, and there- fore the father was not legally entitled to her services; but it was held that a service in fact was sufficient to support the action, especially as the husband had not interfered. Where the husband is civilly dead, as in case of his being Where hus- transported for life, or a limited term, the wife may contract as y^Jl'^f""' a/eme sole, and sue or be sued upon her contracts (^) ; and it makes no difference in this respect that he is at the hulks in this country and not actually sent abroad (h). In equity a married woman having separate property is, for Power of many purposes, regarded asa feme sole, and her contracts (i) are "^"'tfi^ i,iji-ii 1 11 •• 117 woman in held to bind her separate estate, though she is incapable at law Equity. of making a contract in respect of her separate property {k). And it appears to be the better opinion, that it is not necessary that a contract should be in writing, in order to bind her separate estate in equity, where that is not rendered necessary by any statute (Z); nor, where it is in writing, is it necessar}"- that it should refer to the separate property in order to bindit(?7z). Where, however, there is a restraint upon her power of antici- pation, she cannot deal with her property as a. feme sole. And a married woman is not rendered competent to contract as a feme sole, by the possibility that she may afterwards acquire separate property (n). his wife, for special damage sus- C. 387. tained by him in consequence of {g) Chit, on Contr. 169. a libel on his wife, whereby she (Ji) Ex parte Franks, 7 Bing. lost a situation which enabled 762. her to maintain herself. (i) Bell v. Hyde, Prec. Cha. (c) Brashford v. Buckingham, 328 ; Norton v. Ttirvill, 2 P. Wms. Cro. Jac. 77, 205 ; and see Nurse 144 ; Grighy v. Cox, 1 Ves. 517. V. Wells, 4 B. & Ad. 743; S. C. (k) Clerk v. Laurie, 1 H. & N. in error, 1 A. & E. 65 ; Johnson 452. V. Lucas, 1 E. & B. 659 ; Selw. {I) Owens v. Dickinson, Cr. & Nisi Piius, tit. " Baron and Ph. 55. Feme," III. (m) Ibid., and see Vaughanv. (d) Hall V. Hill, 2 Str. 1094. Walker, 6 Ir. Ch. Rep. 471. (e) Offley v. Clay, 2 M. & G. («) Per Wood, V. C, in Wal- 172. rond v. Walrond, 28 L. J., Ch. 97. (/) Harper v. Luffkin, 7 B. & THE PARTIES TO THE CONTRACT. Where wife deserted by husband has obtained order for protection. And now (o) where a wife is deserted (p) by her husband she may at any time after such desertion, if resident within the metropolitan district, appiy to a police magistrate, or if resident in the country to justices in petty sessions; or, in either case, to the Court for Divorce and Matrimonial Causes, for an order to protect any money or property she may acquire by her own lawful industry, and property which she may become possessed of after such desertion, against her husband or his creditors, or any person claiming under him ; and such magistrate or justices or court, if satisfied of the fact of such desertion, and tlfiat the same was without reasonable cause, and that the wife is main- taining herself by her own industry or property, may make and give to the wife an order protecting her earnings and pro- perty acquired since the commencement of such desertion, from her husband and all creditors and persons claiming under him : and such earnings and property shall belong to the wife as if she were a feme sole: Provided always, that every such order, if made by a police magistrate or justices at petty sessions, shall, within ten days after the making thereof, be entered with the registrar of the county court within whose jurisdiction the wife is resident; and that it shall be lawful for the husband, and any creditor or other person claiming under him, to apply to the court or to the magistrate or justices by whom such order was made for the discharge thereof: Provided also, that if the husband, or any creditor of, or person claiming under the hus- band, shall seize or continue to hold any property of the wife after notice of any such order, he shall be liable at the suit of the wife (which she is thereby empowered to bring) to re- store the specifib property, and also for a sum equal to double the value of the property so seized or held after such notice as aforesaid : if any such order of protection be made the wife shall, during the continuance thereof be and be deemed to have been during such desertion of her in the like position in all respects with regard to property and contracts, and suing and being sued, as she would be under this act if she obtained a decree of judicial separation. Infants. INFANTS. Although infants labour under a general incapacity to enter into absolutely binding contracts with other persons (5'), yet they may make some contracts which will be binding upon them until avoided by them (r) ; such as contracts for their (0) 20 & 21 Vict. c. 85, s. 21. The affidavit in support of tlie application for such an order should be very precise, to satisfy the court of the fact of desertion. Ex parte Sewell, 28 L. J., Prob. & Mat. C. 8. On the construc- tion of this section generally, see Bathe v. Bank of England, 27 L. J., Ch. 630. ( p) As to what amounts to desertion, see Jliompson v. Thomp- son, 27 L. J., Prob. & Mat. C. 65. {q) Bac. Abr. tit. " Infancy," I. (r) Third persons cannot avoid contracts entered into by infants, on the ground that they are not for the infant's benefit, Douglas V. Watson, 17 C. B. 685. benefit (s). Infants may also make contracts for necessaries, which will be absolutely binding upon them (t). What are necessaries is a mixed question of law and fact (u), and will be decided by the court and jury taking into con- sideration the station in life of the infant (x). Livery for the servants of an infant, who was a captain in the army, has been held to come within the description of necessaries, and the infant was held liable to pay for it (y). Similar principles would apply to a claim for wages. A contract of apprenticeship is generally to be regarded as for the benefit of an infant, and, therefore, he may make a legal binding contract of apprenticeship (r). If he could not do so, he could not be bound at all, for a father has no common law authority to bind his infant son an apprentice without his consent (a). So a contract of hiring and service may be beneficial to an infant, and would, generally speaking, be binding upon him, and may be made even with his own father {b) or mother (c). Such a contract would subject him to the statutable regulations applicable to masters and servants, although he might not be liable to any action upon the contract (rf). And it would give him a right of action for wages earned (e). For if an infant of What are necessaries. Livery for servants of captain in the army. Contracts beneficial to infant. Contract of apprentice- ship. Contracts of hiring and service. (s) Maddon v. WJiite, 2 T. R. 161 ; R. V. Shinfield, 14 East, 541. {t) Bac. Abr. tit. " Infancy," I. 1 ; and see Zouch v. Parsons, 3 Burr. 1801; Drury v. Drury, 5 Bro. Pari. Cas. 570. (u) Wharton v. M'Kenzie, 5 Q. B. 612. (x) Peters v. Fleming, 6 M. & W. 46 ; Wharton v. MKenzie, ubi supra ; Chappie v. Cooper, 13 M. 6 W. 252. iy) Hands v. Slaney, 8 T. R. 578; Chappie v. Cooper, 13 M. & W. 258. («) R. V. St. Petrox, 4 T. R. 196; R. v. Arundel, 5 M. & S. 257. In order to make it bind- ing, however, he must execute the contract (as an adult must also, R. V. Ripon, 9 East, 295). It is not sufficient for the father and master to execute, R. v. Crom/ord, 8 East, 25 ; R, v. Ar- neshy, 3 B. & Aid. 584. But he may execute by the hand of a third party, R. v. Lovgnor, 4 B. & Ad. 647. (a) R. v. Arneshy, 3 B. & Aid. 584. The reason why the father or friend generally joins in a contract of apprenticeship, is because an action of covenant will not lie against an infant ap- prentice for not serving; see Y. B., 21 Hen. 6, 31 ; Gilbert \. Fletcher, Cro. Car. 179; and see Capes V. Hutton, 2 Russ. 357. Though it appears to be other- wise by the custom of London, Horn V. Chandler, 1 Mod. 271 ; and see Ex parte Eden, 2 M. & S. 226; Com. Dig. Justices of the Peace, B. 55 ; Beard v. Webb, 2 B. & P. 99. Any action for breach of the contract on the part of the infant should be against the father where he joins, Branch v. Ewington, 2 Doug. 518. To such an action it is no an- swer that it was the master's duty to compel service, Hughes V. Humphreys, 6 B. & C. 687. Nor that the son avoided the indenture after he came of age, Cuming V. Hill, 3 B. & Aid. 59; see also Ellen v. Topp, 6 Exc. 424 ; Phillips V. Clift, 4 H. & N. 168. (i) R.V. Chillesford, 4 B. & C, 94. (c) Gilbert v. Schwenck, 14 M. & W. 488. (d) R. V. Chillesford, ubi supra ; and see Wood v. Fenwick, 10 M. & W. 204. (e) Ibid. In America a minor cannot sue for wages unless his THE PARTIES TO THE CONTRACT. Infants may sue for wages in County Court ; and in ■Slierifls' Court. Ifood V. Fen- wick. R. V. Lord. Statutes for protection and control of women and children. five years of age, or other person who is noji potens in corpore, be retained and serve in the best manner he can, his master must pay him his wages (,/"). By tlie County Courts Act it is provided (/7), "that it shall be lawful for any person under the age of twenty-one years to prosecute any suit in any court holden under that act for any sum of money, not greater than fifty pounds, which may be due to him for wages, or i)iecework, or for work as a servant^ in the same manner as if he were of full age." And there is a similar provision in the City of London Small Debts Act {h). A contract of hiring and service for wages would be con- sidered beneficial to, and binding upon, an infant, although it contain clauses for referring disputes to arbitration, and for the imposition of forfeitures in case of neglect of duty, to be de- ducted from the wages (i). But it has been held, that a con- tract by an infant binding himself to serve during a certain time for wages, but enabling the master to stop the work when- ever he chose, and retain the wages during the stoppage, is wholly void, as not being beneficial to the infant (A). Women and children, however, being considered to require legislative protection and control whilst entering into contracts of hiring and service, various Acts of Parliament have, at dif- ferent times, been passed for this purpose, which are referred to in the note (Z), and some of which will be found printed at length in the Appendix. father has given him his time, or emancipated him, Stiles v. Gran- ville, 6 Cush. Rep. 458. But where the father was dead and the mother was insane, a minor was regarded as emancipated, and allowed to recover, Jenness V. Emerson, 15 New Hampsh. Rep. 486. (/) Dalt. Just. Ch. 58; Bro. tit. " Labour," 46 ; Bac. Abr. tit. " Master and Servant;" and see Phillips V. Jones, 1 A. & E. 333. (g) 9 & 10 Vict. c. 95, s. 64 ; 13 & 14 Vict. c. 61, s. 1. (/i) 15 & 16 Vict. c. Ixxvii. s. 46. In the Customs Regulation Act, there is also a provision that bonds given under that act by minors shall be valid, 16 & 17 Vict. c. 107, s. 195. (0 Wood V. FenwicJc, 10 M. & W. 195. (k) K v.Lord, 12 Q. B. 757. (I) See as to Parish Appren- tices, 43 Eliz. c. 2, s. 5 ; 42 Geo. 3, c. 46; 56 Geo. 3, c. 139; 3 & 4 Will. 4, c. 63 ; 4 & 5 Will. 4, c. 76, ss. 15, 61; 7 & 8 Vict, c. 101, s. 12 ; as to Boys entering H.M.'sNavy, 16& 17 Vict. c. 69; as to Apprentices to Sea Service, 17 & 18 Vict. c. 104, s. 141, et seq.; 14 & 15 Vict. c. 35, s. 10 (the rest of that act being re- pealed); as to Apprentices to Watermen, &c., on the Thames, 22 & 23 Vict, c. cxxxiii. s. 48, et seq.; as to Chimney Sweeps, 3X4 Vict. c. 85 (see R. v. Hips- well, 8 B. & C. 466) ; as to Em- ploymentofWomen and Children in Mines and Collieries, 5 & 6 Vict. c. 99 (in Appendix); in Factories, 3 & 4 Will. 4, c. 103 ; 4 & 5 Will. 4, c. 1 ; 7 & 8 Vict. c. 15; 10 & 11 Vict. c. 29 (see Rijder v. Milh, 3 Exc. 853) ; 13 & 14 Vict. c. 54; 16 & 17 Vict. c. 104; 19 & 20 Vict. c. 38 (in Appendix) ; in Print Works, 8 & 9 Vict. c. 29; 10 & 11 Vict. c. 70 (in Appendix); and see the General Act for the better Pro- tection of Apprentices and Ser- vants, 14 & 15 Vict. c. 11 (in Appendix). LUNATICS — PARTNERS. LUNATICS, The position of a lunatic or person of unsound mind is con- Lunatics. sidered in general to bear some analogy to that of an infant in regard to bis liability upon contracts (m). For although, strictly speaking, a person of unsound mind is incompetent to con- tract (nj, yet there can be no doubt that a lunatic would be held liable to pay for any services which Juid been rendered to him, provided they were such as might reasonably be considered necessaiy for a person in his station in life. In such a case the law would imply a promise to pay for them (o). And modern cases show that when a party entering into a contract is a lunatic, but the state of his mind is unknown to the other party, who has taken no advantage of the lunatic, he would not be allowed to set up his lunacy as a defence to an action on the contract, especially in a case where the contract was not merely executory, but executed in the whole or in part, and the parties could not be restored altogether to their original position (p). PAKTNERS. Every partner may in general be regarded as the agent of the Partners partnership firm, and as such endowed with authority to do all s«"e>r*l'y- acts within the scope of the partnership business, so as to bind the firm. A partner, indeed, virtually embraces the character of both principal and agent. So far as he acts for himself and his own interest in the common concerns of the partnership, he may properly be deemed a principal, and so far as he acts for his partners he may as properly be deemed an agent (q). With regard to hiring and dismissing clerks and servants. Power of each partner would, generally speaking, have authority to hire (jismfssin°- and discharge such servants as might be necessary for the pur- servants. " pose of carrying on the business of the partnership. Where, therefore, one partner gave a weekly servant due Donaldson notice to quit, but the other partner afterwards authorized him ^' ' ""'"' to remain in the house where the partnership business was car- ried on, and of which the partners were joint tenants, it was held that such remaining was lawful, and that the partner who gave the notice to quit was not justified in turning the servant out by force on his refusing to go peaceably, as the rights of the partners were co-extensive (r). (to) Wentworthv. Tubb, 1 Y. & 17 ; Read v. Legard, 6 Exc. 636 ; C. N. C. 171. Beavan v. McDonnell, 9 Exc. 309. (h) See Ch. on Contr. 129, et (ing from my account of insurances, from the commencement of the said account until the present period, or those tliat may hereafter be done," the parties, having acted on this agreement, were held to be partners in the insurance business. And where {d ) the plaintiff agreed with the defendant to convey by horse and cart the mail between Northampton and Brackley at 9/. a mile per annum, and to pay his proportion of the expense of the cart, &c. ; money received for the carriage of parcels to be divided between them, and the damage occasioned by loss of parcels, &c., to be borne in equal proportions, it was held that this agreement constituted a partnersliip, and not a mere mea- sure of wages, and consequently that the plaintiff could not sue the defendant for the 9/. a mile. And in the following case also the parties were held to be partners (e) : — " Memorandum of an agreement entered into between Messrs. R. Graj' and L. Greenham, for carrying on the trade of cotton spinning and manufacturing at Mr. Gray's mills at Greenhill, Drogheda : Mr. Greenham to have the full control and manage- ment of the mill, and working of it to the extent he may think it advisable as it now stands, for the term of five years from 13th March, 1854, and to give his whole time and attention thereto, and not to enter into any other trade without the con- sent of Mr. Gray. Mr. Greenham is to direct and superintend all departments, from the purchases to the sales of all matters used and produced, or that it may be advisable to dispose of in or out of the mill or mill concern ; and also the employment they had made themselves such with regard to their transactions with the rest of the world. (rt) IVilkivson v. Frasier, 4 Esp. 182; and see Mair v. Glennie, 4 M. & S. 240 ; Stoclcer v. Brock- elbank, 20 L.J., Ch. 401. ( b) Gedcles v. Wallace, 2 Bligh, 270. (c) Knoi'jles v. Havghton, Lib. Reg. 1804, A. 1008 ; cited in Collyer on Partn. 17. {d) Green v. Beesley, 2 Bing. N. C. 108; and see Bond v. Pittard, 3 M. & W. 357. (e) Greenham v. Gray, 4 Jr. C. L. Rep. 501. KELATIONSHIP CREATED — PARTNER OR SERVANT. 37 and dismissal of all parties required for, or connected with, the Greenkam. v. establishment of the D. Mill Co. ; a regular set of accounts to ^''"''' be kept by a competent book-keeper, by double entry, who must furnish weekly and half-yearly accounts, and make out a proper balance sheet the first Monday in April, and first Monday in October, each successive half-year. Mr. Gray to charge for the mill and concerns as it now stands, that is all within the walls, together with the two dwelling-houses, a rent of 300/. per annum, over and above all head rents, insurance against fire at 7,000/., stock in process included, together with all taxes on the premises, and with which rent of 300/. the concern is to be debited in account half-yearly when balancing the books. The machinery to be kept in equal repair at all times to that it now is in, the expense of which is to be duly charged in the mill accounts, as the amount may be paid. Should it be consideied advisable to extend the business by buildings at G., and putting in additional machinery or otherwise, Mr. Gray is to charge inte- rest for the capital he may sink in such buildings and machi- nery at 6/. per cent, per annum. And for the wear and tear of the nmchiuery so put in, a sum to be deducted yearly bj' way of sinking fund, at a rate to be decided on ; but for all the working capital that may be required for working the mill, as far as its present extent is capable, or to the greatest extent further buildings and machinery may be capable of and require, Mr. Gray is to supply such capital, and charge for the use of the same interest at the rate of 5/. per cent, per annum. Mr. Greenham is to be paid for his management, over and above his travelling expenses and other charges or costs he may incur for the benefit of the concern, 150/. per annum, to be paid monthly should he require it, and is to receive one-fifth part of the net profits half-yearly, and is to have for his private use one of the two mill dwelling-houses that he may make choice of, free of any charge whatever, to use in such manner as may best suit his convenience." Then followed a provision appointing an arbi- trator, in the event of differences. Greenham, claiming to be partner, brought an action for the hindrance offered by Gray to the plaintiff's fulfilling his con- tract, and for Gray's repudiation of the agreement. Gray con- tended that Greenham was not a partner, nor anything more than his manager or servant, and that he had misconducted himself as such, by asserting to different persons that he was a partner and not servant of Gray, and that for so doing Gray discharged him. It was held by the Court of Exchequer in Ireland, though not without considerable doubt, that they were partners. Richards, B., said, *' he had never met an instrument devised with greater ingenuity to hide what the parties really meant;" and added, " the distinction whicli has been taken between persons who are partners inter se, and those who are partners quoad third parties only, does not seem to me to be very appli- cable to what we have here to consider. True it is that persons may act so as to constitute themselves partners, and become liable to third persons while they are not partners, nor liable i7iter se, but that has reference to cases where the partnership 38 THE CONTRACT OF HIRING AND SERVICE. is worked out and attemptod to be established by matter m pais, and is totally ina])plicable iiere where the question is the con- struction of a document, and there cannot be one construction on this instrument in the case of persons who ai'e partners, quoad third ])ersons only, and another in the case of persons who are partners «»7ct" .ie. The instrument is very obscure." Notpartners. However, in the following case (,/"), the parties were held not aari-e.'"" '' ^'^ ^^ partners. C. sold to R., and conveyed to him by deed his interest in the profession and practice of a surgeon, &c., carried on by liim in P. Street, for t)OU/. — 500Z. to be paid on the execution of the deed, and 400Z. at the end of a year. C covenanted not to practise Avithin three miles of P. Street, and also that, during one year from the date of the deed, he would reside in P. Street, and carry on the profession as before, and introduce R. to the patients, and promote the interest of the con- cern. In consideration thereof R. covenanted to allow C. during the year a moiety of the clear profits of the concern, to be paid at the expiration of the year. In an action of covenant brought by C. uj)on the deed, R. claimed to set off certain sums received by C. during the year from patients as money had and received to Ins use. Pollock, C. B , before whom the ac- tion was tried, refused to admit evidence of the receipt by C. of those sums, on the ground that the parties were partners during the first year. Ujion which a bill of exceptions was tendered, and the Exchequer Chamber awarded a venire de novo, con- sidering the parties were not partners, and that the evidence ought to liave been admitted. ftocler V. So, where (_^) S. being entitled to certain letters patent for Bruckeibank. yaQ^m^ lucifer match boxes, for a money consideration granted an exclusive licence to B. and Co. for the whole term, and by deed covenanted to serve B. and Co. as manager of the business for the same period, with power to B. and Co., in case of the bankruptcy or insolvency of S., or breach of the covenants on his part, to detei-mine the engagement by notice in writing, B. and Co. covenanted with S. that they would diligently employ themselves in the business, and that S. should have the manage- ment thereof under their directions; that if S. should have duly observed the covenants, B. and Co. would jiay him a gross sum of money at the expiration of the licence; and further, bj^ way of salary, such a sum of money every quarter-day as should be equal to 40Z. per cent, of the net proceeds of the business, and in case of S.'s death before, would pay his executors, during the remainder of the term, 30/. per cent, upon the net profits; and it was provided, that in case B. and Co. discontinued the business, S. should have the option of purchasing their interest in the licence, and the stock, &c., but that nothing therein con- tained should constitute S. a partner. After the business had been carried on for a time under this arrangement, B. and Co. discharged S. from being manager, on the ground of neglect, who thereupon filed a bill in the Court of Chancery for an in- (/) RawUnson v. Clarke, 15 L. J., Ch. 401 ; see also Osborne M. & W. 292. V. JulUon, 2G L. J., Ch. 6. {g) Stacker v. Brockelbank, 20 BRLATIONSHIP CHEATED — PARTNER OR SERVANT. 39 junction to restrain B. and Co. from excludinj^ him from the management, and for an account. Lord Cranworth, V. C, granted the injunction, but upon appeal, the Lord Chancellor, Lord Truro, discharged the order, with costs, to be paid by S., upon the ground that there was no partnership, that it was simply a contract of hiring and service, the remuneration to be measured with reference to the amount of the profits of the business. Again, where both parties were tailors, and the defendant, Andrews v. who was employed as travelling agent for the plaintitf, to re- ^"5''- ceive a commission of 15Z. per cent, on the gross amount of '^^''"'''^ *'■''" profits, endeavoured to make out that he was a partner, Kin- derslej^ V. C, held, that they were not partners inter se, Avhatever might have been the effect of their dealings as re- garded third persons, and granted an injunction to restrain the defendant from receiving from any of the customers introduced by him to the plaintiff any sums of money on account of goods delivered or business done for them by the plaintitf, and from doing any act to hinder the plaintiff from so doing (h). Similar principles have been acted on in criminal cases (z). so in crimi- Tlius, it has been held, that a person employed by the owner of "al cases, a colliery, as captain of one of his vessels, to take out coal and Hartley's sell the same, and bring back the money to his employer, and ''"*''■ who was remunerated for his labour, by allowing him two- thirds of the price for which he sold the coals above the price charged at the colliery, was a servant within the meaning of the statute 89 Geo. 3, c. 85, and having embezzled the price of some coal, he was convicted of larceny. All the judges holding that the mode of paying him for his labour did not vary the nature of his employment, nor make him less a servant, than if he had been paid a certain price per chaldron or per day. So, where a clerk to a banking firnj was to receive one-third Holmes' case. of one of the partner's profits, being the fifteenth share of the whole profits of the house, to which the other ])artners assented, but they considered the clerk not liable to them for losses: it was held, that the clerk was not a partner. He was to receive only a sort of per-centage, and the agreement was assented to by the partners, merely as a private agreement between the one partner and the clerk. He was to receive a share of the /jar- ticular profits of the one partner, and not of the general profits of the firm, and therefore he might be guilty of embezzling money received on behalf of the firm(y). So, where a prisoner Anonymous. was employed by the master of a coal vessel, who sent him with a cargo of coals, and the custom of the trade was for the person who superintended the business to receive two-thirds of the freight, and the owner one-third ; the prisoner took the whole ; Avhereupon he was indicted and convicted. It was objected, that he and the master were joint proprietors of the freiglit, but a large majority of the judges held the conviction right (/t). {h) Andrews v. Pugli, 24 L. J., Chambre, J., cited in 2 Russ. on Ch. 58. Crimes, 170 (3rd edit.). (i) R. v. Hartley, lluss. & (/r) Anonymous, ibid., cited Ry. 139. by Chambre, J.; sue 2 Russ. on {j) Holmes' case, 2'Levi\n,25Q; Crimes, 171. 40 THE CONTRACT OF HIRING AN'D SERVICE. n.^'.WortUij Tench v. Roberts. In re Jack- aon. As regards tliirdpersoiis. Distinction between ser- vant receiv- ing share of net profits, and grosx earnings or sum calcu- lated with reference to profits. And where (/) W. engao-ed " to take charge of the glebe lands of C, his wife undertaking tlie dairy and poultry, at 15s. a- week till jNIichaelmas, 1850, and afterwards at a salary of 25/. a year, and a third of the clear annual profit, after all expenses of rent and rates, labour and interest on capital, &c., are paid, on a fair valuation made from Michaelmas to Michaelmas; three months' notice on either side to be given, at the expira- tion of which time the cottage to be vacated by W., who occu- pies it as bailiff, in addition to his salary :" it was held tliat W. was servant to C, tmd not a partner. But in a case (/«) where the plaintiff was clerk to the de- fendant, who was a solicitor, under an agreement " to become an assistant to R., and to take one-third part of the profits of the business by Avay and in lieu of a salary, not to be considered as a partnership, and R. agreed to allow T. the above for his share as an assistant," Sir John Leach, Vice-Chancellor, allowed a demurrer to a bill filed by T. for an account of salary, on the ground that this agreement substantially con- stituted a partnership, and was contrary to the policy of the statute 22 Geo. 2, c. 46, s. 11, which prohibited attornies allowing unqualified persons to practise in their names. And in another case {n), where an attorney engaged an un- qualified person to conduct his business, and agreed to allow him a moiety of the profits of the business instead of a fixed salary, and the names of both of them were painted on the door of the office, and bills were made out in their joint names ; Lord Tenterdcn ordered the attorney to be struck off the rolls, and the clerk to be sent to prison for a month. Where the question arises, not between the parties themselves but between one of them and a third person, a distinction of some nicety, and difficult of application to the circumstances of particular cases, has been established between cases in which the agreement was that the servant, &c. should be remunerated bjr a portion of the net profits; and cases in which the agree- ment was for a remuneration by a portion of the gross earnings, or produce, or by a sum of money calculated in proportion to the profits, or a given share of them. In the former of those cases he will be considered as a partner, so far as to be liable to third parties as such : it being a well-established principle, that whoever participates in the profits of a trade, or has a specific interest in the profits themselves as profits, becomes chargeable as a partner to third persons in respect of transactions arising out of the trade or particular adventure in the profits of which he is to participate (o). Whilst, in the latter cases, he will not be considered as a partner even with regard to third persons. This distinction will probably be regarded by the reader as one of considerable subtlety and refinement. It is, however, well established, and, though it has often elicited from judges and text-writers expressions of animadversion and regret, it has. (0 R. V. Worthy, 21 L. J., M. C. 44 ; S. C. 2 Den. C. C. 333 ; see E. v. Walker, 27 L. J., M. C. 207. (to) Tench v. Roberts, 6 Madd. 145, note ; see Candler v. Cand- ler, ibid. 141. («) In re Jackson, 1 B. & C. 270. (o) Gow on Partn. 13, 14. RELATIONSHIP CREATED — PARTNER OR SERVANT. •H nevertheless, been frequently acted upon in practice, and is thought, by some writers, at least, to rest on a very just and satisfactory foundation (p). The distinction itself is well illustrated by the case of Dry v. Vri/ v. Bos- Boswell{(j). That was an action against B. for the repairs of a ""^''■ lighter. The witnesses first stated that the lighter was the sole property of A., who let her out to B., and he worked her, and that the two shared her profits equally between them. Upon which Lord Ellenborough, C. J., said, " In that case B. was to be considered a partner, and was jointly liable for the re- pairs done to the lighter. There was here a participation of profit and loss, which constituted a partner?hip." But the agreement with A. subsequently appeared to be that B., in consideration of working the lighter, should receive half her gross earnings, and that A., as owner, should receive the other half. Then Lord Ellenborough observed, that " this Avas only a mode of paying B. wages for his labour, and was diilerent from a participation of profit and loss; so that, under these circumstances, no partnership could be considered as existing between him and the owner of the lighter." This distinction was frequently recognized and acted upon by Lord Eldon, although he disapproved of it(r); and has also been recognized by other judges. Thus where (s) an agreement was entered into between Mair, Mair v. the owner of a ship, and Young, the master, that Young was Giennie. to have in lieu of all wages, primage, &c., one-fifth share of the profit or loss of the intended voyage on ship and cargo, and was to follow Mair's instructions, do all the business himself that he could do, and for the rest make the best bargains he could. Lord Ellenborough said, there was " no pretence for saying that the captain was a partner, because his wages were (p) 3 Kent Comm. Lect. 43, (r) E:e parte Hamper, 17 Ves. pp. 25, 33, 34 (4th edit.). See 404, 412 ; Ex parte Langdale, Story on Partn. ss. 3(), 52 ; Gary IS Ves. 300; Ex parte Watson, on Partn. 11, note (i). Mr. Jus- 19 Ves. 461 ; Ex parte Rowland- tice Story states that the Roman son, 1 Rose, 91 ; and see Pott v. law fully recognized the same Eyton, 3 C. B. 32 ; Ex parte distinction; which is also well C/h^c/c, 8 Bing. 469. known and fully recognized in (s) Mair v. Giennie, 4 M. & the French law. See Story on S. 240 ; and see S/ocker v. Brock- Partn. ss. 50, 51 ; and he adds, elhank, 20 L. J., Ch. 401, where " This coincidence of doctrine, Lord Truro treats the case of founded upon general reasoning Mair v. Giennie as if it decided betweeu foreign jurists and the that Young was not a partner in municipal jurisprudence of the the adventure. That was the common law as to the propriety opinion of the court, but it would of the distinction, certainly af- seem to have been unnecessary fords no slight confirmation of for the decision of that case to its accuracy and entire con- express that opinion. The cpies- fonnity to the true principles tion there was, as stated in the which ought to regulate the sub- text, as to the ownership of the jcct." ship. A similar observation ap- {tj) 1 Campb. 329; and see plies to il/t^/er v. iViaz/j, 5 Taunt. IVish v. Small, 1 Campb. 331 ; 74. Gibbons v. Wilcox, 2 Stark. 43. 42 THE CONTRACT OF HIRING AND SERVICE, to be regulated and paid by reference to a calculation on the profits of the adventure." However, it was satficient for the decision of that case to hold that Young was not a partner in the ship. Smith V. But where (t) A. and B. agreed that A. should buy whalebone a son. through B., as his broker, and that B., as a remuneration for liis trouble, should receive one-fourth of tlie profits arisinsf from the sale, and bear one-eighth of the losses, the Court of Kins's Bench inclined to the opinion that B. iras a partner in the profits, so as to be liable to tliird persons ; thousrh it was not necessary to decide that point, the question in the case before the court depending upon wlietber or not B. was interested as a partner in the lohalchone, which he was held not to be. -P"" V. The distinction above pointed out is well illustrated by the *'''"■ case of Pott v. Eyton and Jones [u). That was an action by the assignees of certain bankrupts to recover money jiaid by them on account of the defendants. The facts were shortlj'' these : — In 1828, Eyton was concerned in a colliery at M., and an agreement was entered into between him and Jones for opening a tally-shop at M., (near the colliery,) principally with a view of supplying goods to the Avorkuien at the colliery. Eyton built the shop, and his name appeared over the door and in the excise licences, and the invoices of goods supplied to the shop were made out in his name, and he paid for them. Jones managed the chop. Tlie workmen at Eyton's colliery were supplied with goods from it, for which they settled at the colliery when tiieir waires were paid until 1831 (.r). From that time they paid at the shop once a fortnight. Jones paid over to Eyton the principal part of the money taken at the shop, as he paid for the goods, but reserved enough for small payments at the shop. Eyton received for his own use II. per cent, on the amount of all sales to his workmen, and Jones liad all the rest of the profits. In 1834, the arrangements were changed. Jones was thenceforth to buy in his own name all goods supplied to the shop, and receive payment for all goods sold ; and Eyton was to receive bl. instead of 7Z. per cent, on the amount of sales to his workmen. Eyton's name remained over the door till October, 1840, when a fire stopped the business. In 1834, when Jones began tobuy goods, he opened an account with the bankrupts, who were bankers. The bank failed in 1839, when a balance exceeding 2,000Z. was due to it on that account. Besides the shop at M., Jones, after 1834, opened three moi-e at other places, which he carried on in his own name, on his own account, and supplied with goods from the shop at M. The action was brought against both Eyton and Jones to recover the amount due to the bankers. No evidence was given to show that credit was, in fact, given to Eyton by the bankers, or that they knew that his name appeared over the shop, or in the (0 Smilh V. IVatson, 2 B. & C. v. Nesham, 3 C. B. 641 ; Htyhoi 401; and see Reid v. HoUins- v. i?«?vjc. 9 C. B. 431. head, 4 B. & C. 8(i7 ; Cheap v. (a) When the truck system Cramond, 4 B. & Aid. 670. was abolished. (m) 3 C. B. 32 ; and see Barry RELATIONSHIP CREATED — PARTNER OR SERVANT. 4-3 licences, or supposed him to be a partner, and the jury, at the trial, found that he had not shared profit and loss siiiee 1834, when the account was opened, and had not been held out as a partner and his credit pledged to the bank, and gave their verdict for the defendants. And in the following term a rale for a new trial, on the ground that the verdict was against evidence, was discharged, Tindal, C. J., saying, {y) " It was con- tended that an actual partnership was proved ; for that Eyton, by taking 5/. per cent, on the sales to his workmen, received a share of the profits, and was therefore, in point of law, a partner as to third persons. But we are of opinion that the taking of that money was not sufficient to make him a partner. Traders become partners between themselves by a mutual par- ticipation of profit and loss; but, as to third persons, tliey are partners if they share the profits of a concern : for he who re- ceives a share of the profits receives a part of that fund upon which the creditors of the concern have a right to rely for paj'- ment, and is therefore to be made liable to losses, although he may have expressly stipulated for exemption from them" (2). Qrace y. Smith{a); Waugh w. Carver (b). But in tlie former of those cases. Lord Chief Justice De Grey, after laying down the rule of law in the terms which 1 have mentioned, proceeds: — " If any one advances or lends money to a trader, it is lent on his general personal security. It is no specific lien upon the profits of the trade, and yet the lender is generally interested in those profits; he relies on them for repayment." Afterwards he says, " I think the true criterion is to inquire whether Smith agreed to share the profits of the trade with Hob'mson, or whether he only relied on those profits as a fund of payment, — a distinction not more nice than usually occurs in questions of trade and usury. The jury have said that this is not payable out of the profits." So in the present case, the jury have said there was no agreement to share the profits. This distinction has been recognized in many cases, of which it may suffice to mention Z);-?/ v. Boswell{c) and Benjamin v. Purteous{d). And altliough, in J^x parte Hamper (e), Lord Eldon said the distinction was so thin that he could not state it as established upon due consideration, yet he acted upon it in "that case; and again, in Ex parte Watson {J"), where he said, '" One who receives a salary not charged upon profits — according to a known though nice distinction — is not by that a partner." Nor does it appear to make any difference whether the money is received by way of interest on money lent, or wages, or salary as agent, or commission on sales. And it appears to us that, in the present case, the payment to Eyton was in the nature of commission on certain sales supposed to be eflPected through his influence over his workmen, and was not sufficient to render (y) .3 C. B. 39. (a) 2W. Bl. 908. {z) In French v. Styring, 2 {b) 2 H. Bl. 23;5. C. B., N. S. 3G2, Cresswell, J., (c) 1 Campb. 329, ante, p. 41. said, "That lias been said ever (d) 2 H. Bl. 590. since Waugh v. Carter, and some («•; 17 Ves. 404. judges have pronounced it to be (/) 19 Ves. 459. a very bad rule." 44 THE CONTRACT OF HIRING AND SERVICE. French v. ^tyring. him, as a matter of log'al inference, liable as a partner : and in so far as it was a question of fact, it was disposed of by the jury." In the followinjT case {g) the same question might have arisen, but was avoided bjr the construction put upon the acts of the parties. The plaintiff was a trainer of horses at Newmarket; defendant was a wine merchant at Hnddersfield. In March, 1854, a racehorse called Census Avas jointly pur- chased by plaintiff and C. C. afterwards sold his share to M., and it was agreed between plaintiff and M. that plaintiff should keep the horse for the purpose of training him, and should liave the entire control and management of him ; that 35s. per week should be allowed as the expenses of his keep ; that plaintiff should pay the expenses of entering the horse and conveying him to different races; that each of them should pay one-half of the horse's keep and other expenses, and that the winnings should be equally divided between them. M. having sold his share of the horse to defendant, the latter agreed with the plaintiff that he should continue to keep, train and manage him upon the same terms as had been agreed upon with jM. The horse was entered and ran at several races, but never won any-, thing, and having broke down, was sold for 20Z. It was held that, even assuming this agreement to constitute a partnership between plaintiff and defendant, the former might recover from the latter a moiety of the disbursements made by him on account of the horse, as being in the nature of an advance of capital for the defendant. APPRENTICE OR SERVANT. "l\Tiethei- the Another question, which was forn)erly of more importance one^oflV-^ than it is at the present day {h), though even now it may often prenticeship, arise, is wlietlier the agreement into which the parties have or of hiring entered was intended to create the relationship of master and ana service, ,. , . /.n t i -i- i • apprentice, or master and servant (i). In decidmg this point more attention is now paid to the main object of the parties than to the language used by them f/i). Formerly it was held that unless the word " apprentice" was used, the contract might be considered one of hiring and service (Z). But the cases in which that doctrine was laid down and upheld depends on have long been overruled {m), and each case is now held to (.ff) French v. Sfyriiis, 2 C. B., N. S. 357 ; see also Hickman v. Cox, 27 L. J., C. P. 127. Qi) Now that settlement by hir- ing and service is abolished, anie, p. 1, note {b). One great diffe- rence between an apprentice and a servant is that the latter may be dismissed for misconduct, whilst the former may not in general. See Winstone v. Linn, 1 B. & C. 460 ; Wise V. Wilson, 1 Carr. & K. 662 ; Phillips v. Clift, 4 H. & N. 168. (i) See further on this point, Burn's Justice, tit. "Poor" (29th edit.) pp. 545, &c., and 651, &c. (k) R. v. Nether Knutsford, 1 B. & Ad. 730. (/) R. V. Little Bolton, 2 Bott. 316; R. V. Eccleston, 2 East, 298. {in) R. V. Rainham, 1 East, 531 ; R. V. Laindov, 8 T. R. 379 ; R. V. Creditor, 2 B. cS: Ad. 493 ; R. V. Great Wishford, 4 A. & E. 223. APPRENTICE OR SERVANT — TENANT OR SERVANT. 45 depend upon its own particular circumstances (?z). If the the intention parties appear to have contemplated the relation of master and °^'^^i'^''''^^- apprentice, then the contract must be considered as one of apprenticeship ((^), and if it be an imperfect apprenticeship it cannot be treated as a contract of hiring and service. If, on tlie other hand, it appear that the parties contemplated the relation of master and servant, then it must be deemed a contract of hiring- and service {p). Where teaching and learning appear to be the primary object of the parties, then, although work is to be done for the master, the contract is to be considered as one of apprenticesliip. But if working for the master appear to be the primary object, and teaching and learning the master's trade a mere secondary consideration, the existence of a stipula- tion by the master to teach, and a corresponding stipulation by tlie servant to learn, the master's trade will not alone prevent the contract from being considered one of hiring and service(g). TENANT OR SERVANT. Where a servant occupies premises belonging to his master. Tenant or as where a coachman occupies rooms over a stable, or a gardener l"^"^^^^"'' an outhouse, or a gatekeeper a lodge in the park, or a porter a cupying lodge at the park gate, and has on that account less wages, his premises occupation is in law the occupation of his master (r). And jj^^^lg"^^ ° such servants, when dismissed from the service, have no right does nut to continue in the occupation of their houses as tenants, nor are "'^''"Py as thej^ entitled to notice to quit(s). So, under the law of settle- ment, the occupation of a tenement connected with and ancillary to the service, would not confer a settlement, though it would if wholly unconnected therewith (t). So a servant at an annual nor is he salary, who resided in two rooms within the walls of a light- j.'^^|.g|.^ ^° P""' house to take care of the liglit, was held not liable to be rated as occupier, his occupation being that of his master (««). But a servant was held liable to poor rate who took a house not be- longing to his master, although his master paid the rent (.r). (72) R. V. Kivg's Lynn, 6 B. & East, S^ ; R. v. Stock, 2 Taunt. C. 99 ; R. V. Edingale, 10 B. & C. 329 ; R. v. Rees, 7 C. & P. 568 ; 739 ; R. V. Northowram, 9 Q. B. St. Anne v. Linnaan Society, 3 E. 2i. & B. 793; and see Cases of (0) R. V. Bilborough, 1 B. & Burglary, 1 Russ. on Cr. 810. Aid. 115; R. v. Crediton, 2 B. & {s) Mayhew v. Suttle, 4 E. & Ad. 493 ; R. V. Newton, 1 A. & B. 347, post, p. 46. E. 238; R. V. Great Wishford, 4 {t) R. v. Leacroft, 2 M. & S. A. & E. 216; R. v. lahtham, 4 472; R. v. Minster, 3 M. & S. A. & E. 937 ; R. v. Northowram, TIG ; R. v. Cheshunt, 1 B. & Aid. 9 Q. B. 24. 473 ; R. v. Jken, 2 A. & E. 147 ; (p) Per Bayley, J., in R. v. R. v. Terrott, 3 East, 506; R. v. King's Lynn, 6 B. & C. 99 ; see Ponsonby, 3 Q. B. 14; and cas. R. V. Great Wisliford, 4 A. & E. cit. Arclibold's Poor Law, 574. 222 ; and R. v. Norttiowram, 9 (m) R. v. Tynemoutli, 12 East, Q. B. 24. 46. iq) R. V. Crediton, 2 B. & Ad. {x) R. v. Lynn, 8 A. & E. 497 ; R. v. liillinghay, 5 A. & E. 379 ; R. v. Bishoplon, 9 A. & E. 676 ; R. V. Northowram,9 Q. B. 24. 824. (r) Bertie v. Beaumont, 16 46 THE CONTRACT OF HIRING AND SERVICE. Mai/hew v. Siil'lle. Brewer's servant in beershop not a tenant. S rvant can- not dispute master's title. Government servp.nts per- initted to oc- cupy houses in part of salary en- titled to vote but not if required to do so. Hall-keeper to guildhall of a borough. Where S., a brewer, by an agreement, reciting that he "was in possession of a messuage and premises whereon the sale of beer and porter had been for some time hist past and then was carried on and conducted by U. for and on S.'s account, agreed that M. might from the date of the agreement enter into and upon the said premises, and carry on and conduct thereon such trade or business for S. in the place and stead, in the same manner, and with and upon the same privileges and terms as U. had theretofore done, until the agreement should be deter- mined and put an end to by one month's notice on either side; and tlie agreement also contained sti])u]ations that M. should take all his beer from S., and not part with the trade or premises without S.'s consent, and on receiving notice to put an end to the agreement should quietly give up possession of the premises, trade, fixtures, &c. without requiring any payment from S. : it was helilbothby the Queen's Bench and Exchequer Chamber to be abundantly clear that there was no relation between the parties but that of master and servant, and that M. could not maintain trespass against S. for enteringwithout a month's notice,ashe had no such possession as would enable him to maintain such Q.c\\o\\{y). A servant who has been put into possession of a house or other premises by his master cannot of course dispute his mas- ter's title nor that of his master's devisee (z). If he wish to do so he must first give up possession (a). Officers and servants of government who are permitted to occupy houses belonging to government as part remuneration for their services may be considered as occupying as tenants within the Reform Act, 2 Will. 4, c. 45, s. 27, but not if they are required to occupy them with a view to the more efficient performance of their duties (b). But a hall-keeper to the guild- hall of a borough who occupied a house (communicating with a yard at the back of the guildhall) which was originally built as a residence for and was always occupied by the hall-keeper for the tin)e being, who was elected annually, and had the exclusive control of the house, and paid rates and taxes, but no rent, his occupation being considered as part payment for his services, and being necessary for the due discharge of his duties, was held to occupy as servant and not as tenant, and therefore not entitled to a vote (c). A general liiring is a hiring for a year. GENERAL HIRING, YEARLY HIRING, &c. Where no time is limited either expressly or by implication for the duration of a contract of hiring and service, the hiring is considered as a general hiring, and in point of law a hiring (y) Mayhew v. Sutlle, 4 E. & B. 347. (z) Doe V. Dirchmore, 9 A. & E. 662. This rule does not merely apply to ejectment; De~ laney v. Fox, 2 C. B., N. S. 768. (a) Doe V. Bay tup, 3 A. & E. 188 ; Doe v. Birchmore, uhi supra. (b) Hughes v. Chatham, 5 M. & G. 54; Dobson v. Jones, ibid. 112. (f) Clarke v. Bury St. Ed- munds, 1 C. B., N. S. 23 ; 26 L. J., C.P. 12. GENERAL HIRING, YEARLY HIRING, ETC. 47 for a year{d). This rule is ayjplicable to all contracts of hiring and service, whether written (e) or unwritten, whether express or implied, and whatever be the nature of the service ; and is not confined to servants in husbandrj', but extends also to domestic (_/') and other servants, such as clerks and others (g). But it is not an inflexible rule, and does not apply where the contract contains stipulations inconsistent with the application of it, or where from some well-known custom upon the subject the parties may be considered to have contracted with reference to such custom, and thus to have excluded its application (h). And as we shall presently see, a yearly hiring may in general be terminated bj^ giving the customary notice. Nor does the rule apply to cases in which there has been a But the rule service, but no contract of hiring, and no circumstances from only applies which a contract can be implied (i) ; and therefore where (k) has\eeri*a" an assistant-surgeon brought an action against his employer for contractor the amount of salary due to him, and no specific contract of '^"^'""' "'''^"^ J _ 7^1 ^ exprtss or hiring was proved, but evidence was given of the service, and implied. it appeared that after the plaintiff had been some time in the Bayieyy. defendant's service he was taken ill and went to the hospital, RimtiieU. and never returned nor was asked to return to his employment, and that he hud been paid different sums of money, but not at any fixed or definite periods: although it was contended on the part of the defendant that the evidence showed a yearly hiring, and therefore that the plaintiff", having left his situation before the end of the year, could not recover any part of his salary, yet it was held that there was no evidence to show a hiring for a year, and the plaintiff recovered for the time he had actually served. And a contract of hiring cannot be presumed where the cir- When con- cumstances tend rather to rebut such a presumption, as where l^^^'' ''^P""' , , , ,. . , .'^ . .' . , be implied, paupers have been taken to live with their relatives or others out of charity (1), or where the agieeraent was for cohabitation and not merely for service (w). But where there has been a service for more than a year, and Where ser- wages paid without any express contract of hiring, it may be '^V-'^ I'erform- presumed that such service was under a contract for a yearly presumed. hiring (w). (ft?) Co. Litt. 42 b; Favjcett v. (i) As there were in Beeston Cash, 5 B. & Ad. 904; Lilley v. v. Colhjer, 4 Bin^r. 313. Elwin, 11 Q. B. 742. There is {k) Bayley v. Rimmell, 1 M. & scarcely a case upon the subject W. 506 ; and see Broxham v. of settlement by hiring and ser- IVagsfaffe, 5 Jurist, S45. vice in which this rule is not ad- (l) li. v. Pitmiiister, 2 Bott. niitted; and it is never denied 269; R. v. lVeyhiU,2 Bott. 271; in any one of them. Burr. S. C. 491 ; 1 W. Bl. 206; (e) See Elderton v. Emme7is, 4 R. v. Slokesley, 6 T. R. 757 ; R. C. B. 479; 6 C. B. 175, 176; \. Rickinghall, 7 East, 373; R.v. 13 C. B. 495. Sow, 1 B. & Aid. 178. (/) See R. V. Worfield, 5 T. (m) R. v. Northwivgfield, 1 B. R. 506. & Aid. 912; Bradshuw v. Hay- (l') Hutman v. Bulnois, 2 C. & ward, Carr. & M. 591. P. 511. («) R. v. Lyth, 5 T. Rt 327 ; (h) Baxter v. Nurse, 6 M. & R. v. Long Whatton, 5 T. R. G.935; and see po«/, p. 48. 447; /£. v. Pendletvn, 15 East, 48 THE CONTRACT OF HIKING AND SERVICE. Where con- tract for in- delinite time, ■yenrly liirinp; presumed. Conditional hiring. Baxter v. Nurse. Presumption of yearly hiring, when excluded by terms. And so where there has clearly been a contract, but not for any definite time, a yearly hiring may be interred (o), and sli), will strengthen that inference. And, if the bargain be ori- ginally made for an entire year, but there is also a provision that, in a given event, it siiall be competent to the parties, or either of them, to put an end to or suspend the service for a part of the year, the mere existence of this condition will not render it the less a hiring for a year; a conditional hiring being the same, for most purposes, as an absolute hiring until the condi- tion is acted upon [q). And this presumption, that a general hiring is a hiring for a year, may be greatly strengthened, where there appears to be some general custom applicable to tiie particular trade, business or occupation in which tlie servant is engaged to hire such ser- vants by the year, and evidence of such custom is always admis- sible (/■). Thus, where (s) the plaintiff was engaged by the de- fendant, at a weekly salary, to edit a neic periodical publication, evidence was admitted, on the part of the plaintiff, to show that it was the custom, in the case of editors and other persons regu- larly employed on newspapers, to engage them for the whole year. But as it did not appear that the custom applied to new publications, the jury found a verdict for the defendant, on the ground that the plaintiff was not hired for a year, and an appli- cation for a new trial was refused {t). The presumption that a general hiring is a yearly hiring cannot, however, be made where it is excluded by the terms of the contract. If either party, for instance, is at liberty to determine the service at any time, the hiring cannot be con- sidered a yearly hiring (m). Or if the hiring be expressly for less than a year {x), although done purposely to avoid the con- sequences of a yearly hiring (_?/). Or if the master have not the entire control of the servant during the year, although he pay the servant yearly wages, as if the servant is at liberty, when not engaged for his master, to work for other people (z). 449 ; see R. v. St. Martin, Lei- cester, 8 B. & C. 677. (o) R. V. Macclesfield, 3 T. R. 76 ; R. V. Ardington, 1 A. & E. 260 ; R. V. Newton, 10 B. & C. 838. (/)) R. V. Worfield, 5 T. R. 506. {q) R. V. Byker, 2 B. & C. ] 14 ; R. V. Ossett cum Gaivtliorpe, 4 B. & Ad. 216; R. v. St. Helen's, Auckland, 4 B. & Ad. 718; R. V. Walbotlle, 9 Q. B. 248 ; R. V. Sandhurst, 7 B. & C. 557 ; and see R. v. Herstmon- ceaux, 7 B. & C. 551. (r) It must be proved by in- stances, and cannot be supported by evidence of opinion merely, Cunningham v. Fonblanquc, 6 C. & P. 44. («) Baxter v. Nurse, 1 Carr. & K. 10 ; and see Holcroft v. Barber, 1 C. & K. 4. (/) 6 M. & G. 638; and see Williams v. Birne, 7 A. & E. 177. (?<) R. V. Great Bowden, 7 B. & C. 249, et cas. cit. ib. [x) Dumford v. Ridgurick, 2 Salk. 535 ; R. v. Standoii Masscy, 10 East, 576. But ahiringfrom Whitsuntide to Whitsuntide, al- though less than 365 days, was held sufficient hiring for a year to confer a settlement ; R. v. Ulverstone, 7 T. R. 564. (ij) R. V. Murslnj, 1 T. R. 694 ; R. V. Coggeshall, 6 M. & S. 264. (z) R. V. Polesivorth, 2 B. & C. 715; R. V. Lydd, 2 B. & C. 754 ; R. V. Kililngholme, 10 B. & GENERAL HIRING, YEARLY HIRING, ETC. 49 Or if the agreement be to do work by the job, as to make Job work. 70,000 bricks at a certain price, this cannot be considered a yearly hiring, for although the job may last beyond the year, it does not necessarily last so long (a). So of hiring to work by the Piece-work, piece or gross (6). But if the hiring be for a year, a mere stipulation for payment by piece-work will not render it less a yearly hiring (e). And so if any portion of the year, however short, is excepted Cases of during which the servant is not under his master's control, Jifp'JnK''^^ whether that exception be ex])ressed or by necessary implica- tion from the terms used(6?), the hiring cannot be considered a hiring for a year, so as to confer a settlement, although the con- tract be for a year's service, subject to such exceptions. Thus, where a man was hired for a year, with liberty to let himself for the harvest month to any other person (e), it was held that he could not gain a settlement by service under such a hiring. So where the servant agreed for liberty to be absent eleven days during the sheep-shearing season (/"), or during the sheep- shearing season {g), or to work shearman's hours and be at liberty at all other times {h), or as a colt shearman, to work twelve liours each day (i) ; or where the hiring was for a year from Michaelmas, to go away a month at harvest, and make up the time after Michaelmas {k) ; or where abricklaj^er hired him- self for three years, but he was to work only during certain hours each day (I), and in case of frost was to have no wages, but to be at liberty to serve another master [m) ; or where pay Saturdays and Sundaj's were excluded from the days on which the servant was to work (n) ; or Sundays only, for a hired ser- vant is always under the government, discipline and control of the master, even on Sundays (o) ; or where it was agreed that the servant should have a holiday to go to his feast (p) ; or a C. 802. But if the master have {g) R. v. ArUngtoit, 1 M. & S. the entire control during the 622. year, it is no objection that it is {h) R. v. Bucldaiid Denham, given him by several contracts ; Burr. S. C. 694. R. V. Ravenstonedale, 12 A. & E. {i) R. v. North NiUeij, 5 T. R. 73. 21. (a) R. V. Woodhurst, 1 B. & (A-) R. v. Turveij, 2 B. & Aid. Aid. 325. 520. {b) Trinity v. St. Peter's in [l] R. v. Edgmond, 3 B. & Aid. Z)orc/iMi!er, 1 W. Bl. 443. 107; see R. v. Northowram, 9 (c) King's Norton v. Camhden, Q. B. 24. 2 Str. 1139; R. \. Birmingham, (m) See 7f. v.3/ar<;;rt/n, 1 East, Cald. 77 ; Doug. 333. 239 ; that the mere stipulation frf) R. V. Gateshead, 2 B. & C. to stop wages in bad weather 117 n, as explained m R. \. St. would not make a hiring ex- Helen's, Auckland, 4 B. & Ad. ceptive. 726 ; and see R. v. Walbottle, (n) R. v. Cowpen, 5 A. & E. 9 Q. B. 259. 333. (e) R. v. Bishop's Hatfield, 2 (o) R. v. Kingswinford, 4 T. K. Bott. 211 ; R. v. AWiorne, 2 B. 219 ; R. v. North Nibleij, 5 T. R. &C. 112. 21. (/) R. v. Empingham, 2 Bott. (p) R. v. Threkingham, 7 A. & 217; Burr. S. C. 791. E. 866. U 50 THE CONTRACT OF HIRING AND SERVICE. Hours of ■work limited Exceptions implied by custom. Reservation of weekly ■wages. Weekly hiring. pensioner two days in eacli half-year to go for his pension {q) ; or wliere there was a stipulation that each man should on each worhimj duij do a full day's work, and that he should not leave the pit till that work was completed, or should forfeit 2s. 6rf. ; as it was, therefore, stipulated by implication that the men were not to be under the control of the master on days which were not working days, nor on any day as soon as the day's work was completed (r). Upon the same principle it was also held, that if the hours of •working were limited, the hiring, although otherwise for a year, could not be considered a yearly hiring for the purpose of con- ferring a settlement (s). But those principles were held not to apply where the limitation of hours was merely for the purpose of regulating the amount of wages {t), or where the agreement was to obey the rules of the factory with regard to hours, &c., as that was merely equivalent to an agreement to obey the master's orders, which is implied in every contract (?/.). And exceptions, merely implied by custom or usage of trade, were held not to prevent a settlement {x). Where the only circumstance from which the intended dura- tion of a contract of hiring and service can be inferred is the reservation of wages weekly, it must be taken to be weekly hiring. As where a man hired himself to a plumber and glazier, who was to find him board, lodging and washing at 6s. per week, summer and winter {y) ; or where the hiring was merely at so much a week (r) ; or where the servant was to live with his master, who was to find him board and lodging, and pay him 2s. Qd. a week (a) ; or where a servant in husbandry was to serve for the weekly wages of 4s., board, washing and lodging, except in the harvest month, when his wages were to be in- creased to 10s. 6c?. per week, and then again reduced to 4s. (i) ; or where the hiring was at 8s. a week, and two guineas for the harvest, to do anything the gardener should set him about (c) ; (q) R. v. Over, 1 East, 599. (r) R. v. Gateshead, 2 B. & C. 117 n, as explained in R. v. St. Helen's, Auckland, 4 B. & Ad. 726; R. V. Walbottle, 9 Q. B. 259 ; see R. v. Byker, 2 B. & C. 114. {s) R. V. Birmingham, 9 B. & C. 925 ; R. V. Frome Selwood, 1 B. & Ad. 207 ; R. v. Norton Bavant, 3 A. & E. 161; R. v. Bolbeck, 4 Q. B. 590; R. v. Preston, 4 Q. B. 597. (<) R. v. Ossettctim Gawthorpe, 4 B. & Ad. 216. {u) R. V. St. John, Devizes, 9 B. & C. 890. But see R. v. Preston, 4 Q. B. 597, where the hours were limited by a printed notice, with reference to which the agreement was made. {x) Per Lord Mansfield in R. v. Buckland Deriham, Burr. S. C. 694 ; per Bayley, J., in R. v. Edgmond, 3 B. & Aid. 110; and see R. v. Stoke-itpon- Trent, 5 Q. B. 303. (y) R. v. Dedham, Burr. S. C. 053 ; 2 Bott. 292. (z) R.\. Newton Towey, 2 T. R. 453 ; R. v. Odiham. 2 T. R. 622 ; R. v. Hanhury, 2 East, 423 ; R. v. Mitcham, 12 East, 351 ; see also Baxter v. Nurse, 6 M. & G. 638; ante, p. 48. (a) R. v. Pucklechurch, 5 East, 382. (b) R. v. Dodderhill, 3 M. & S. 243. (c) R. V. Lambeth, 4 M. & S. 315. GENERAL HIRING, YEARLY HIRING, ETC. 51 or where a gardener having asked 20?. a year, his master refused that, but agreed to give him so much a week (d). But if there is anything in the contract of hiring to show AHter, where that it was intended to be for a year, the reservation of weekly wages will not control it. As where the hiring was at 3s. per fortnight week the year round, with liberty to go on a fortnight's notice, this was held to be a yearly hiring (e). So where the hiring or month's was at weekly wages, with a stipulation for a month's notice to notice determine the contract, on the ground that it was a hiring of '^^'^^"^ which no certain portion of time could be predicted for its duration, it was consequently a general hiring, which the law says is a hiring for a j^ear (/'). Where the hiring is a yearly hiring, it cannot, in general, be Yearly hiring put an end to by either party before the end of the year. If, cannot be therefore, on the one hand, a master wrongfully dismiss his before the servant during the year, the servant may maintain an action end of the against him for such wrongful dismissal, and a jury would, in ^^^^' some cases, be justified in assessing his damages at the amount of wages which he would have earned had he been allowed to serve to the end of the year ( g). Whilst, on the other hand, a servant wrongfully quitting his master's service, or rightfully dismissed for misconduct, during the year, cannot recover any wages for the portion of the year during which he has served iji). Where the defendant having established smelting works at Down v. Carthagena, in Spain, oflfered to employ the plaintiff as fore- ■''*"'''• man, by letter, containing the following passages : — " I should require you to enter into an engagement to remain with me for, at least, three years, at my option; salary, 250Z. per annum." It was held, that this did not enable the defendant to put an end to the service at his will, but that it was a yearly hiring, with an option for the defendant to require the plaintiff's service for three years, or to put an end to it at the expiration of the first, second or third year (i). Tlie above-mentioned rule is, however, subject to an excep- in the tion in cases in which the agreement of hiring is subject to some absence of stipulation, either express or implied by custom (evidence of ^^^o\'''" ^" which, as we have already seen, is in all cases admissible if not custom as to inconsistent with the contract), enabling either party to deter- notice. {d) R. v. Warminster, 6 B. & Company, 3 A. & E. 171 ; Lilley C. 77. V. Elwin, n Q.B.7i2. (e) R. v. Birdhrooke, 4 T. R. (i) Down v. Pinto, 9 Exc. 327. 245: In Cook v. Paxton, 33 L. T. 109, (/) R. v. Hampreston, 5 T. R. under an agreement by the Army 205; R. V. Great Yarmouth, 5 Works Corps, to be subject to the M. & S. 114; /i. v. Pershore, 8 Mutiny Act and the Articles of B. & C. 679. War, and which also contained {g) See Beeston v. Collyer, 4 a stipulation as to notice to quit, Bing. 309. The action for wrong- the men were considered only to ful dismissal is treated of, post. be entitled to notice according to {h) Spain v. Jrnoft, 2 Stark. the agreement, and not to a for- 256 ; Turner v. Robinson, 6 C. & mal discharge such as is contem- P. 15 ; S. C. 5 B. & Ad. 789 ; plated by the Mutiny Act. Ridgway v. Ilungerford Market d2 52 THE CONTRACT OF HIRING AND SERVICE. mine tlie contract by notice. In such cases, if the contract is deterniined by a notice, in accordance with the custom, the ser- vant is entitled to recover wages for the fractional portion of the year during which he has served. Domestic Thus, in the case of domestic and menial servants, with regard bervants, ^^ whom there is a well-known rule, founded solely on custom, warning or that their contract of service may be determined at an?/ time by month's giving a month's warning or paying a month's wages (A), if ^^agps, their contract of hiring is so determined, they are entitled to a proportionate amount of wages for the time they have served, wronsfully But it is conceived to be perfectly clear, notwithstanding a i"'",'i"^ '^°'^" notion to the contrary, v.hich is believed to be not uncommon, leit all wages, , , . ,-" , „ ,, .... not merely that a domestic or other yearly servant wrongfully quitting his month. master's service forfeits all claim to wages for that part of the current year during which he has served, and cannot, after having wilfully violated the contract according to which he was liired, claim the sum to which his wages would have amounted had he kept his contract, merely deducting therefrom one month's wages. This, at first sight, may appear rather harsh to some ; but it is believed to be not only the law, but far more consistent with common sense and common lionesty than to allow a man, at one and the same moment, to break a contract and claim a benefit under it, especially when, upou merely giving notice to his master, and paying (or agreeing to allow his master to deduct from the amount due to him) a month's wages, he could leave at any time, and the practical effect of adhering to the strict letter of the law is merely to compel the servant to give his master notice when he wants to leave, which can be but little trouble to him, and will, in most cases, save the master a great deal of unnecessary inconvenience and trouble, and some- times loss. Who are No general rule can be laid down as to who do and who do within rule as ngj; come within the category of domestic or menial servants. ser\ants. Each case must depend upon its own circumstances. But it Gardener is. has been held (I) that a head gardener, at 100/. a year, who resided in a detached house belonging to his master, was a Farm bailiff menial servant, and only entitled to a month's warning. And ""'• a jury of the county of Surrey have held (m) that a gentleman was not justified in giving only a month's notice to a farm Governess bailiff, and gave a verdict for a year's wages. And the Court of Exchequer has held (/^), so far as the question is to be treated as a matter of law, that a governess, at 60Z. a year and board and lodging, does not fall within the rule by which a menial or domestic servant may be discharged with a month's notice or a month's wages. The position which she holds, the station she occupies in a family, and the manner in which such a person is (k) Fawcett v. Cash, 5 B. & Jcinsopp, 5 Jur. 870, ante, p. 32. Ad. 908; Beeston v. Collyer, 4 (vi) Lozith v. Drummond, Wmg- Bing. 313 ; and see Williams v. ston Sprinp; Assizes, 1849 (see Bine, 7 A. & E. 183; Metzner Times, March 28), coram Parke, V. Bolton, 9 Exc. 519, 520. B., who left it to the jury. (/) Nowlan v. Ablett, 2 Cr. M. [n) Todd v. Kerrich, 8 Exc. & R. 54; see Johnson v. Blen- 151 ; S. C. 22 L. J., Exc. 1. not GENERAL HIRING, YEARLY HIRING, ETC. 53 ■usually treated in society, certainly place her in a very different situation from that wliich mere menial and domestic servants hold. The same may be said of a tutor. But in these and Tutor, similar cases an arrangement should be made at the time of hiring as to the notice expected or required, or intended to be given. In cases to which the custom applicable to domestic servants custom ap- does not apply, and in which no specific agreement has been piicabie in made as to the notice to be given for the purpose of determining "' ^^^ case>. the contract, that question must be determined bj' the custom applicable to the particular trade or calling with reference to which the service is to be rendered. Thus evidence has been Commercia admitted of a usage of trade enabling a master to dismiss a traveller commercial traveller, at 150Z. a year, upon giving tliree months' nionths. notice; and the plaintiff having declared upon tlie contract as an absolute contract for a year's hiring, was defeated upon its appearing, upon his own cross-examination, that the contract was defeasible by custom (o). Evidence has also been admitted Agent in of a custom in the woollen trade to dismiss an agent at a woUen trade month's notice (/»). And in Mortimer v. Prowett (q), evi- "P'* '"""' ' dence was given to show that, where no condition was ex- printer, &c. pressed in the agreement of hiring, it was usual to give a printer (newspaper) one month's, or at least a fortnight's notice, a publisher three months, and a sub -editor to the end of the current year, and the jury gave the plaintiff, who filled all these places, one month's wages. By analogy to the rule wliich prevents a yearly tenancy from Analogy to being determined before the end of the year, it is sometimes tenancy from contended that particular yearly hirings can only be determined ^^^^ '° ^^^^ in a similar manner. This point will, in most cases, depend upon the custom of the trade or business in question. But where a schoolmaster was appointed, by trustees of a school, on the following (among other) terms : — " The trustees shall pay you at the rate of 55/. per annum, and no more, so long as, by mutual consent, you shall retain the office of master," &c., " the appointment to be subject to termination by three months' notice from either party," it was held that the three months need not terminate with the year (r). And Coleridge, J., in held not holding the analogy of tenants from year to year not to be applicable. applicable to the case, said — " Nothing is said in the resolution Reason, or letter that the notice is to be given to terminate at the end of a year. No doubt thei-e is a rule, with respect to tenants of land from year to year, that a notice to quit must be to quit at the end of a complete year. But no authority has been adduced to show that such a rule is applicable to notices to quit in all cases. In the case of land, there would be great inconvenience, arising from the nature of the property and the course of hus- bandry, to allow the relation of landlord and tenant to be termi- nated at any time ; but with regard to a school, it must be of (o) Metzner v. Bolton, 9 Exc. (q) Q. B., Nisi Prius, June 518. 18, 18/56. ( p) Parker v. Ibhetson, 27 L. J., (r) Ilijan v. Jenkinson, 25 L. J., C. P. 230; ante, p. 33. Q. B. li. 54 THE CONTRACT OF HIRING AND SERVICE. great importance that a master, who has done some act not sufficient to jiistit'y immediate expulsion, should not be allowed to continue in his office until the expiration of the current year. It seems, therefore, to me, that the trustees are justified in giving a three months' notice to terminate the schoolmaster's holding at any time during the year. HOW FAR THE MASTER IS BOUND TO FIND WORK FOR THE SERVANT. Contract to Where the contract of hiring merely contains an under- lind work taking on the part of the master to pay certain stipulated i^mpntxl from wages, in proportion to the work done by the servant, there is contract to no implied obligation on the part of the master to find work, so pay wages, g^g j.^ enable the servant to earn wages. Williamson Thus, where (s) the defendant, who was the owner of a colliery, V. Taylor. entered into an agreement with the colliers and workmen, and Agreement amongst Others the plaintiff', whereby the said owner retained ■ and hired the said other parties thereto ''to hew, work, fill, drive, and put coals and do such other work as may be necessary for carrying on the said colliery as they shall be required or directed to do by the said owners, or their viewers or agents, at the respective rates and prices, and on the terms," &c. following : — "First. The said owners agree to pay the said hereby hired parties once a fortnight, upon the usual and accustomed day, the wages by them to be earned, at the following rates, viz." — (specifying the rates, with regulations as to the manner of working.) " Fifth. The said parties hereby hired shall, during all the times the pit shall be laid off" work, continue the servants of the said owners, subject to their orders and directions, and liable to be employed by them at such work as they shall see fit. Sixth. The said hewers hereby hired shall, when required, except when prevented by sickness or other sufficient unavoidable cause, do and perform a full day's work on each and every working day, or such quantity of work as shall be fairly deemed equal to a day's work, not exceeding eight hours, and shall not leave their work until such day's work, or quantity of work, is fully performed or finished to the extent of each man's ability ; and in default thereof, each of the said parties hereby hu-ed and so making default shall, for every such default, forfeit and pay to the said owners 2s. 6t/. The pit to commence coal work at such times in the morning as shall be required to suit the trade." Then followed other clauses not material here. It was held that the agreement contained no promise on the part of the defendant to employ the plaintiflT at reasonable times for a reasonable number of working days during the term, and that no action would lie against the defendant for not doing so, al- though the plaintiff' was thereby unable to earn wages. But wages But where the contract of hiring provides for the payment of must never- certain wages (not in proportion to the work done), although it paid if agreed ""• («) Williamson v. Taylor, 5 Dixon, 9 A. & E. 693 ; and other Q. B. 175 ; and see Lees v. converse cases, ante, p. 25. Whitcomb, 5 Bing. 34 ; Sykes v. HOW FAR MASTER IS BOUND TO FIXD WORK FOR SERVANT. 65 is optional on the part of tlie master to find work, and he may, if he pleases, discontinue his business, yet he must nevertheless pay the wages agreed on, whether he find work for the servant or not, or he will render himself liable to an action for such damages as a jury may think proper to give {t). Thus, where the plaintitf agreed to manufacture for the de- Aspiiin v. fendant, with the materials and machinery to be provided by ^"*'*"- him, cement of a certain quality, and, on condition of liis doing so, the defendant agreed to pay the plaintifif' weekly 4Z. for two years, and ol. weekly for the following year, and then to receive him as a partner ; the plaintiff also further agreed to teach the defendant how to manufacture certain kinds of cement. Each party bound himself in a penal sum to fulfil the agreement, and the defendant afterwards covenanted by deed for the performance of the agreement on his part. It was held that the stipulations in the agreement did not raise an implied covenant that the defendant should employ the plaintiff in the business during three or two years, although the defendant was bound by express words to pay the plaintiff the stipulated wages during those periods respectively, if the plaintifi" per- formed, or was ready to perform, the condition precedent on his part(M). And where (a.-) a declaration stated, that by deed between the Unnn v. defendant D. and the plaintiff, the plaintiff covenanted that D. *"^'"- should, for five years from the date, serve the defendant in the art of a surgeon dentist, and attend for nine hours each day, and the defendant, in consideration of the services to be done by D., covenanted with the plaintiff that he, the defendant, would, during the five years (in case D. should faithfully perform his part of the agreement, particularly as to the nine hours, but not otherwise), pay D. 35s. per week for the first year, 2Z. per week for the second and third, and 2/. 2s. per week for the fourth and fifth ; that D. was in the service for some time after the making of the deed till dismissed, and during all that time faithfully performed service, &c., and was willing and tendered to perform, &c. to the end of the five years, but the defendant, during the term, refused to permit D. to remain in his service, and dismissed him. It was held, on motion in arrest of judg- ment, that the declaration did not show any covenant corre- sponding to the breach. And where (y) the ])laintiff was appointed permanent solicitor Euierton v. to a joint stock company, at a salary of 100/. per annum, in •^"'"'''«»- lieu of renderinjj an annual bill of costs for business transacted ^"'"^J''*'' t" ^ by him for the company, tor whicli salary lie was to advise and a salary. act for the company on all occasions in all matters connected (i) We shall see hereafter that & B. 99 ; Burton v. Great North- a servant in such case cannot, if em Railway Company, 9 Exc. discharged by his master, recover 507 ; Sharp v. Waterhouse, 27 the wages agreed on by offering L. J., Q. B. 70. to serve and remaining idle, but (x) Dunn v. Sayles, 5 Q. B. only damages for the wrongful CS.5. discliarge. (y) Elder ton v. Emmens, 6 C. B. (u) Asp'Hn v. Austin, 5 Q. B. ICO; In Dom. Proc. 13 C. B. 671 ; see Rust v. Nottidge, 1 E. 495. 56 THE CONTRACT OF HIRING AND SERVICE, Agreement to liiid work implied. Pilkingloii v. Scott. Harllini V. Cummings with the company, with certain exceptions, it was held by the House of Lords, affirming the judgment of the Exchequer Chamber (z), tliat the agreement created tlie relation of attorney and client, and that the company was bound to continue that relation at least for a year, or j)ay the plaintiff his JOOZ. ; but the company was not bound to supply the plaintiff with business as an attorney and solicitor at all events, or to require his ser- vices as attorney or solicitor whenever tliey had occasion for the advice or services of an attorney or solicitor. However, where the contract of hiring is capable of such a construction, the courts seem disposed to imply an agreement on the part of the master to find work, if that is necessary, to enable the servant to earn wages. Thus, in Pilkimjton v. Scott {a), it was held that stipulations in an agreement whereby a workman was to be paid by the piece, that his masters should pay him a moiety of his wages during any depression of trade, and might dismiss him on giving him a month's wages or a month's notice, distinguished the case from that of Aspdin v. Austin, and that, looking at the whole of the agreement, the master was bound to employ the servant in the sense of finding him actual employment, so as to enable him to earn wages, sub- ject to the condition of notice. And a similar decision was made in Hartley v. Cummings (b), where there was an engage- ment on the part of the master to find the servant other work, in the event of the master not requiring the piece-work stii)ulated for, so as to enable the servant to earn a certain amount of wages per week. R. V. rveich. And again, in R. v. Welch (c), where the workman, in con- sideration of a small sum lent in advance of wages, "and of the wages thereinafter agreed to be paid to him" by the masters, agreed to work for and serve the said masters, as a tinplate worker, and not to work for or serve any one else without their leave in writing, for the full term of twelve months then next, and also until the expiration of three calendar months' notice by the workman given to the masters to determine the service, and to perform his work in a workmanlike manner, and not to absent himself during customarj^ hours of work. And the masters, in consideration of tlie good and faithful services of the workman, agreed to pay him " on the Saturday night in every week during the aforesaid term (usual holidays excepted) all such wages as the articles made by him as aforesaid shall amount to, at their usual workmen's prices for similar articles." And the agreement also contained a proviso enabling either party to determine the agreement after twelve montlis by giving three calendar months' notice. It was held, in accordance with Pilkington v. Scott, that the agreement was not void for want of mutuality, and that the masters were bound to provide work ; and Lord Campbell said, " The necessity of giving notice clearly shows that there is some obligation on the employer. (2) Reversing the Judgment of the Court of Common Pleas, 4 C. B. 479. (a) 15 M. & W. 657 ; see the agreement, ante, p. 26. {b) 5 C. B. 247 ; see this case, ante, p. 26. (c) 2 E. & B. 357 ; and see Re Bailey and Re Collier, 3 E. & B.607, 615. HOW FAR MASTER IS BOUND TO FIND WORK FOR SERVANT. o7 Wbat was that ? To find reasonable employment according to the state of the trade. That is not an unilateral agreement, but a mutual agreement, with something to be done on each side." AGREEMENTS IN RESTRAINT OF TRADE CON- TAINED IN CONTRACTS OF HIRING AND SERVICE. It frequently happens that professional men, manufacturers Agreements and tradesmen, on taking clerks, apprentices, servants and of trade""*^ workmen into their employ, require them to enter into an agreement that they will not on leaving their service carry on a profession, manufacture or trade similar to their own within certain limits ; and this is done with a view to secure themselves from competition with those who having been in their service have thereby had opportunities of becoming acquainted with their mode of carrying on business and secrets of trade, and of insinuathig themselves into the good graces of their masters' customers. All agreements ofthissortin general YesiY&mt of trade ((Z) are Agreements illegal and void, and cannot be enforced either at law or in equity, restraint of And it makes no difference whether thejr are under seal or not, trade illegal or whether they are made with or without consideration ; it ^"'^ ^°"'- being contrary to public policy that any one should bind him- self ^ener«Z(y not to carry on his lawful trade (e). {d) As to how far agreements made by workmen to work for a particular master for a long pe- riod, at certain wages, and no one else, are illegal, as being in re- straint of trade, where there is no corresponding obligation on the part of the master to find work, see Pilkington v. Scott, 15 M. & W. 657 ; Hartley v. Cummings, 5 C. B. 247 ; R. v. Welch, 2 E. & B. 357 ; see these cases afiie, p. 56. (e) Com. Dig. Trade, D. 3; Clerk v. Tailors of Exeter, 3 Lev. 241 ; Ipswich Tailors' case, 11 Rep. 53 a ; Mitchell v. Reynolds, 10 Mod. 130; S. C. 1 P. Wms. 181 ; S.C. I Smith's L. C. 171 ; where all the cases are collected and commented upon : and see also 3 Byth. Conv. (3rd edit.), 458, where the cases are also collected; Hinde v. Gray, 1 M. & G. 195. Contracts of this na- ture could not be enforced by the Roman law ; see Puff. lib. v. cap. l,sect. 3; and see Puff. lib. V. cap. 5, sect. 7, as to mono- polies. It may be well here to mention that the case in the Year Books, 2 Hen. 5, fo. 5, pi. 26, which is sometimes, though inaccurately, cited as an authority that an agreement in general re- straint of trade is void (see Com. Dig. Trade, D. 3 ; 1 Smith's L. C. 182; 3 Byth. Conv. 458), is not an authority for that position, (though the position is incon- testable,) for in the case in the Year Book the restraint was limited in point of space, viz. " deins le ville ou le pi' etc." The real reason why the bond in that case was bad, (if, indeed, it was held bad, for in Broad v. Jollyfe, Cro. Jac. 596, it is said that the bond in the case in the Year Book was "allowed good,") was that no circumstances ap- peared to show it to be reason- able ; see Prugnell v. Gosse, Aleyn, 67 ; S. C. Cro. Eliz. 872 ; Clay gate v. Bachelor, Owen, 143 ; and see also Hntton v. Parker, 7 Dowl. 739. The case in the Year Book is only an authority that a restraint of trade in a par- ticular place is bad unless circum- D 5 68 THE CONTRACT OF HIRING AND SERVICE. Hilton V. It was upon this principle, and not as beinjy in violation of Eckersicy. ^^y statute, that tlie bond in Hilton v. Eeherdcy (f) was held both by the Queen's Bench (disscntiente Erie, J.) and Exchequer Combination Chamber to be void as being in general restraini of trade. The on SI '-'S'l • ^yj^j ^^g entered into by eighteen cotton-s})inners, each of whom were severally bound to the plaintiff in 500/. The con- dition recited that the obligors were respectively owners of spinning-mills, and employed in them many work-people; that there were societies and combinations among divers persons, whereby persons otherwise willing to be employed were deterred by fear of social persecution and other injuries from hiring themselves to work, and whereby the legal control of the obligors of their property was injuriously interfered with ; that these combinations were sustained by funds arbitrarily levied and extorted by way of tax or rate on the persons emi)loyed by and receiving wages from the obligoi-s, and in the opinion of the obligors it had become necessaiy to take measures for vin- dicating their legal rights to the control of their property, which would also best sustain the rights of the labourer to the free disposal of his skill and industry, and therefore the obligors had agreed to carry on their works in regai-d to the amount of . wages to be paid to persons employed therein, and the times or periods of the engagement of work-people and the hours of woik, and the suspending of work, and the general discipline and management of their said works and establishments, in conformity with the resolution of a majority of the obligors present at any meeting to be convened as thereinafter men- tioned. And the condition of the bond was that if the obligors and their partners should for twelve months carry on and con- duct, or wholly or partially suspend the carrying on of their works in regard to the several matters aforesaid, in conformity with the resolutions of a majority of the obligors present at a meeting to be held as thereinafter mentioned, then the bond as to each person so performing should be void. And the days, &c. of the proposed meeting were set out ; the obligee to hold the money in trust for all the obligors ; with power for a majority of the obligors at a meeting to release tlie obligors from performance of the condition. But the bond was held void as being against public policy. Judgment of In delivering the judgment of the Exchequer Chamber, ChSr Alderson, B., s^aid :— " The question is, whether this is a bond in restraint of trade, and we think it is so. Prima facie it is the privilege of a trader in a free country in all matters not contrary to law to regulate his own mode of carrying it on according to his own discretion and choice. If the law has in any matter stances are recited or averred show- of the Exchequer Chamber is ing it to be reasonable; and for given at length. In the Queen's this purpose it is cited by Lord Bench, Lord Campbell, C. J., Wensleydale in his judgment in expressed great regret at the Mallan v. May, 11 M. & W. course of decisions which had 665, post, p. 61. thrown upon the Judges the bur- (/) 6 E. & B. 47. The case den of deciding what was or was is so important that the judgment not contrary to public policy. AGREEMENTS IN RESTRAINT OF TRADE. 69 regulated or restrained his mode of doing this the law must be Hilton v. obeyed. But no power short of the general law ought to ^'^^"^^'■'^'J- restrain his free discretion. Now here the obligors to this bond ifiwf"* "^ have clearly put themselves mto a situation oi restraint. Chamber. '' First : each of them is prevented from paying any amount of wages except such as the majority may fix, whatever may be the circumstances of the work to be done and his own opinion thereon. Secondly : they can only employ persons for such times and periods as the majority may fix on, however much the minority may deem it for their own interest to do otlierwise. The hours of work, the suspending of work partially or alto- gether, the discipline of their establishments, is to be regulated by others forming a majority, and taken from every individual member. And all this for a fixed period of twelve months. All these are surely regulations restraining each man's power of carr3'ing on his trade according to his discretion for his own best advantage, and therefore are restraints on trade not capable of being legally enforced. "We do not mean to say that they are illegal in the sense of being criminal and punishable. The case does not require us, and we tliink we ought not to express any opinion on that point. "But then it is said that these regulations, otherwise illegal, are prevented from being so considered by the circumstances against which they were intended to operate. It appears that a counter combination existed on the part of certain workmen, and that the alleged object of this bond was to counteract this, and to set the willing and industrious workman free from its powers. But supposing this to be the object, and that we may even consider it as laudable, we cannot agree that it is laudable or right to use such means of counteraction. The maxim "Injuria nonexcusat injuriam," is a sound one both in common sense and at common law. This isonly to put one wrong as coun- terbalancing another wrong, to place the industrious workman in the fearful situation of being oppressed by a majority of masters, in order to prevent him from being oppressed by a majority of his fellow-workmen. And, besides, here it is to be observed that the masters' combination is not limited to the duration of the suggested combination of the workmen. It is to last for twelve months absolutely ; so that if the combinations assigned as the excuse for it broke np, as they almost always do, in a short period, this restraint upon the obligors would still continue in force after the object against which it seems to have been directed had long ceased to exist. "The bond, therefore, if not altogether illegal and punishable, is framed to enforce at all events a contract by which the obligors agree to carry on their trade, not freely, as they ought to do, but in conformity to the will of others ; and this, not being for a good consideration, is contrary to the public policy. " We see no way of avoiding the conclusion, that if a bond of this sort between masters is capable of being enforced at law, an agreement to the same effect amongst workmen must be equally legal and enforceable ; and so we shall be giving a GO THE CONTUACT OF HIRING AND SERVICE. legal effect to comljinations of workmen for the purpose of raising wages, and make tlicir strikes capable of being enforced at law. We think that the legislature have been contented to make such strikes not punishable, and certainly they never contemplated them as being the subject of enfoixement by a suit at law on the part of the body of delegates against any workmen wlio might have been seduced by some designing person to sign an engagement, with penalty to continue in the strike as long as a majority were for holding out." Upon this last point Lord Campbell, in Queen's Bench, said : " There mnst be entire reciprocity between liberty to the mas- ters and liberty to the men ; and it seems to me that a decision in favour of this bond would establish a principle upon which the fantastic and mischievous notion of a ' labour parliament' might be realized, for regulating the wages and the hours of labour in every branch of trade all over the empire. The most disastrous consequences would follow to masters and to men and to the whole community." Waiiis V. But where a man who for many years had carried on the ■Doy. business of a carrier (^j sold and assigned the goodwill of his Contract on business to the defendants, and covenanted with them that he ness to serve would not at any time from thenceforth during the term of his the purchaser natural life either by or for himself, or for or with any other lueeal "°' person whomsoever in trust for him, or to or for his benefit, set up, exercise, or in any sort or manner howsoever use or follow the trade or business of a carrier except as thereinafter was excepted, and that he would from thenceforth during his life well and faithfully serve the defendants as an assistant in the said trade or business of a carrier, &c. : and the defendants covenanted to pay him certain weekly sums : it was held that the agreement was not void as being in general restraint of trade. "And it may often happen that individual interest and general Agreeiiients convenience render en2:ao:ements not to carry on a trade or to m parttnl re- ^ . n • • ,• i ^ nr c straintof ^ct in a proiession in a, particular place proper. Manufactures trade upheld, or dealings cannot be carried on to any great extent without the assistance of agents and servants. These must soon acquire a knowledge of the manufactures or dealings of their employers. A merchant or manufacturer would soon find a rival in every one of his servants if he could not prevent them from using to his prejudice the knowledge acquired in his employ. Engage- ments of this sort between masters and servants are not injurious restraints of trade, but securities necessary for those who are engaged in it. The effisct of such contracts is to encourage rather than cramp the employment of capital in trade and the promotion of industry" (h). Accordingly, reasonable agreements in partial restraint of trade have always been held to be valid. For partial restraints, however, there must be some consideration, otherwise they are {g) Wallis V. Day, 2 M. & W. see 1 Smith's L. C. 183 d, note 273. As to the dictum in that to Mitchell v. Reynolds. case, that a contract to serve an- {h) Per Best, C. J., in Horner other for life must be by deed, v. Ashford, 3 Bing. 326. AGREEMENTS IN RESTRAINT OF TRADE. 61 impolitic and oppressive (i). Without a consideration such an agreement, if under seal, would be unreasonable (h) ; and if not under seal, would be nudum pacttim{l). If, however, there appear to be a consideration, courts of law will not inquire into the adequacy of it(?n). The law upon the subject of agreements in restraint of trade Maiian\. is admirably stated by Lord Wensleydale in Mallan \\May (n). ^^"^' In that case, by an agreement under seal it was agreed that the defendant should become assistant to the plaintiffs in their business of surgeon dentists for four years ; that the plaintiffs should instruct him in the business, and that after the expiration of the term the defendant should not carry on that business in London or in any of the towns or places in England or Scotland where the plaintiffs might have been practising before the expi- ration of the said service. The agreement, so far as related to not carrying on the business in London Avas held valid, but the remainder of the restriction was held unreasonable and void. And in giving judgment Lord Wensleydale said: "The rule as laid down by Lord Macclesfield (o) and Lord Chief Justice Willes(p) is, that total restraints of trade, which the law so much favours, are absolutely bad, and that all restraints, though only partial, if nothing more appear, are presumed to be bad, but if the circumstances are set forth, that presumption may be excluded, and the court are to judge of those circumstances and determine whether the contract be valid or not ; Mitchell v. Heynolds (q). Contracts in restraint of trade are in themselves, if nothing show them to be reasonable, bad in the eye of the law : per Tindal, C. J., in Horner v. Graves (r). Therefore, if there be simply a stipulation, though in an instrument under seal, that a trade or profession shall not be carried on in a par- ticular place, without any recital in the deed, and witliout any averments showing circumstances which rendered such a con- tract reasonable, the instrument is void. Such are the cases cited in Prugnell v. Gosse (s) and the case of the Ten Tailors of Exeter v. Clarke {t), and Claygate v. Bachelor {u) \ Year Book, 2 Hen. 5, fo. 5(.r). But if there are circumstances recited in the instrument (or probably if they appear by averment), it is for the court to determine whether the contract be a fair and reasonable one or not, and the test appears to be whether it be prejudicial or not to the public interest, for it is on grounds of public policy alone that these contracts are supported or avoided. Contracts for the partial restraint of trade are upheld (i) Prugnell v. Gosse, Aleyn, Wms. 180. 67 ; Claygate v. Bachelor, Owen, {p) Willes, 388, Gunmakers' 143 ; S. C. Cro. Eliz. 872, nora. Company v. Fell. Colgate v. Bachelor. (q) 1 P. Wms. 196. (A) See Huttou v. Parker, 7 (r) 7 Bing. 744. Dowl. 739; Mallan v. May, 11 (s) Aleyn, 67. M. & W. 665. {t) 2 Show. 350. (/) Hitchcock v. Coker, 6 A. & (ii) Owen, 143; see ,5". C. Cro. E. 438. Eliz. 872, nom. Colgate v. Bo- {m) Ibid. chelor. (n) 11 M. & W. 653. (x) See note, ante, p. 57, as (o) Mitchell v. Reynolds, 1 P. to this case in the Year Book. C2 THE CONTRACT OP HIRING AND SERVICE. Chesman v. Nainby. Calmer v. Clark. Davis V. Mason. Sainter v. Ferguson. not because they are advantageous to the individual with whom tlie contract is made, and a sacrifice pro tanto of the rights of the community, but because it is for the beuofit of tlie pubhc at large tliat they should be enforced. Many of tliese partial restraints on trade are perfectly consistent with public conve- nience and the general interest, and have been supported. Such is the case of the disposing of a shop in a particular place with a contract on the part of tlie vendor not to carry on a trade in the same place. It is in effect the sale of a goodwill, and offers an encouragement to trade by allowing a party to dispose of the fruits of his industry; Pruf/nell y. Gosse (j/) ; Broad v. JoIiffe{z); JelUott v. Broad (a). And such is the class of cases of much more frequent occurrence, and to which this present case belongs, of a tradesman, manufacturer or profes- sional man taking a servant or clerk into his service, with a contract that he will not carry on the same trade or profession within certain limits ; Cliesman v. Na'mhy{b). In such a case the public derives an advantage in the unrestricted choice which such a stipulation gives to the employer of able assistants, and the security it affords that the master will not withhold from the servant instruction in the secrets of liis trade, and the com- munication of his own skill and experience, from the fear of his afterwards having a rival in the same business." Upon these principles, agreements in partial restraint of trade have in a variety of instances been upheld and enforced. Thus in Chesman v. Nainby (b), where the defendant, who was a linen- draper, on taking the plaintitt's wife, before marriage, into her service, made her enter into a bond not to cai-ry on the business of a linendraper within half a mile of the defendant's house, the bond was held good. And so where (c) the defendant in consideration that the plaintifi", who was a tallyman, would take him into his family, and instruct him in the trade, with a provision of meat, &c., and an allowance of 20Z. wages a year, promised to serve the plain- tiff for five years, and not to exercise the trade himself for seven years after that time, within the city and liberty of Westminster, and bills of mortality, the agreement was held good. And again, where (d) the defendant, in consideration of the plaintifi's taking him into his service, as assistant in the busi- ness of a surgeon, &c., agreed with the plaintiff not to exercise that business on his own account within the distance of ten miles from Thetford, where the plaintiff resided, for fourteen years, the agreement was held good. And in another case (e), an agreement by the defendant, in consideration that the plaintiff would engage him as assistant to the plaintiff as a surgeon and apothecary, that the defendant (y) Aleyn, 67. (z) Cro. Jac. 596. (a) Noy, 98. (b) 2 Lord Raym. 1456 ; S. C. 2 Str. 739. (c) Colmer v. Clark, 7 Mod. 230; S. C. Cas. temp. Hard- wicke, 53. (d) Davis v. Mason, 5 T. R. 118 ; and see Hayward v. Young, 2 Ch. Rep. 407, where a bond by an apothecary not to set up bu- siness within twenty miles was upheld. (e) Sainter v. Ferguson, 7 C. B. 716. AGREEMENTS IN RESTRAINT OF TRADE. 63 would not at any time practise in his own name, or in the name or names of any other person or persons, as a surgeon or apo- thecary at M., or witliin seven miles thereof, was also held good. When an agreement not to carry on a trade within a certain How distance distance of a particular place has been established, the distance *° be inea- should be measured bv the nearest mode of access, and '' that is ^ ■ , 1 -111 p 1 • 1 Leiyh v. to be considered the nearest way ot access whicli a person Umd. making the best of his way from house to house would be likely to take : that is, using the footway where there was one, and where it was most convenient to use it, and the carriage way, either where it could be most conveniently used, or where there was no footpath" (/"). And " the nearest mode must be taken according to the existing state of the streets. If subsequently to the covenant, the covenantor took a public-house, tlie distance of which, by the then shortest way of access, would be greater than that agreed upon from the one he sold, and a new street were afterwards opened, whereby the distance, by the shortest way of access, became less than that mentioned in the cove- nant, the covenantor would thereupon incur a breach of cove- nant" {g). In construing covenants of this sort, however, much must As the crow depend on the precise language used. When the legislature '®^" has used the expression " within twenty miles," the courts have laid down an arbitrary rule that the distance is to be mea- sured in a straight line on a horizontal plane, or in popular language, " as the crow flies" {K). This rule has been applied by Wood, V. C, in granting an injunction to restrain the breach of a covenant in restraint of trade (i), and, added the Vice- Chancellor, " if the parties mean the distance to be mea- sured by roads and streets, they should say so." But although agreements in partial restraint of trade are in many cases upheld, yet, in order to be valid, they must be reasonable, even though under seal {k). The question, whether "Whether rea- or not any particular agreement of this sort is reasonable, is one \°o^\^ aques- for the determination of the court {I). No certain precise tion for the court. (/) Per Parke, J., in Leigh v. B. 391. In the latter case, p. 404, Hind, 9 B. & C. lib; see At- Erie, J., said, " It always seemed hyns V. Kiirnier, 4 Exc. 77C ; S. C. to me a difficulty, that if the 19 L. J., Exc. 132. court is to decide what restraint (^) Per Littledale, J., in Leigh is reasonable they must judicially V. Hind, uhi supra, determine a question, the solu- (A) R. V. Saffron Walden, 9 tion of which may require know- Q.B. 76; Stokes v. Grissell, 14 ledge both of the statistics of the C. B. 678; Lake v. Butler, 5 E. trade and of the geographical & B. 92 ; Jewel v. Stead, 6 E. & situation of places;" and Lord B. 350. Campbell, C. J., added, " If it (?) IJuignan v. Walker, 1 Johns. were res Integra, I do not see the 446 ; S. C. 33 L. T. 256. objection to casting on the de- (/f) See Hutton v. Parker, 7 fendant the burthen of pleading Dowl. 739, and cas. cit. infra. and proving, as a fact, that the (Z) Horner v. Ashford, 3 Bing. restraint was more than was rea- 322; Mallan v. May, 11 M. & sonable." W. 653 ; Tallis v. Tallis, 1 E. & 64 THE CONTRACT OF HIRING AND SERVICE. There is no precise rule on the sub- ject. A test. Horner v. Graves. AVhere re- straint lield unreason- able. Mallan v. May. Price V. Green. boundary can be laid down within which the restraint would be reasonable, and beyond wliich, excessive. But " a better test cannot be applied to the question whether reasonable or not, than by considering whether the restraint is such only as to afford a fair protection to the interests of the party in favour of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint 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 the eye of tlie law uni'easonable" (Z). Ap])lying this test to an agreement {m), whereby the defend- ant covenanted with the plaintiff, that he the defendant would faithfully serve the plaintiff as an assistant in the business and profession of a surgeon dentist for five years: and the plaintiff, in consideration of such service, and of the covenants of the defendant, did covenant with the defendant to pay him the 3'early salaries therein mentioned, and to instruct him in the business or profession of a surgeon dentist: and the defendant covenanted that he would, during the said term of five years, faithfully and diligently serve the plaintiff as his assistant, and would not depart from his service without giving him three calendar months' notice in writing of such his intention ; " and that the defendant should not, nor would at the expiration or other sooner determination of the said term (provided the said plaintiff were then living and practising in the said business or profession), exercise and practise the said business or profession at or within the distance of 100 miles of the city of York, without the previous consent in writing of the said plaintiff, under the penalty of 1,000/." The restriction was held un- reasonable, and judgment arrested. Upon the same principle, part of the agreement in Mallan v. May {n), (that part, namely, which restrained the defendant from practising as a surgeon dentist in any of the towns or places in England or Scotland, where the plaintiffs, or the de- fendant on their account, might have been practising before the expiration of the defendant's service,) was held to be unreason- able and void. And in Price v. Green (o), a covenant not to carry on the trade of a perfumer, toyman, and hair merchant, within the cities of London and Westminster, and the distance of 600 miles from the same respectively, was held to be void as to the 600 miles, though good as to London and Westminster. But agreements not to carry on the business of an attorney (Z) Per Tindal, C. J., in Horner V. Graves, 7 Bing. 743 ; and see Hitchcock V. Coker, 6 A. & E. 454 ; Mallan v. May, uM supra ; Ward V. Byrne, 5 M. & W. 548, 561 ; Procter v. Sargent, 2 M. Sz: G. 32 ; Dendy v. Henderson, 1 1 Exc. 198. As to how far an agreement to serve a particular master and no one else for seven years is void as being an un- reasonable restraint of trade, where the master is not bound to employ the servant, see Hart- ley V. Ciimmings, 5 C. B. 247 ; ante, p. 26. {m) Horner v. Graves, uhi supra ; and see Young v. Tim- mins, 1 Cr. & J. 331. (w) 11 M. & W. C53; ante, p. 61. (o) 16 M. & W. 346; and see Nkholls v. Stretton, 10 Q. B. 346. AGREEMENTS IN RESTRAINT OF TRADE. 65 in London, or the distance of 150 miles round ip), or in Great Cases in Britain, for the space of twent}' years (q), iiuve been held not ^^'^Vhid unreasonable. And " five miles from Northampton Square, in tobereason- the county of Middlesex," in the case of a milkman {r), and able. " London," in the case of a surgeon dentist, were considered not unreasonable distances (s). And upon a dissolution of partnership between persons in the canvassing trade, a covenant by the defendant not to be con- TaiHsv. cerned in that trade in " London, or within 150 miles of the ^"'^'*- General Post Office, nor in Dublin or Edinburgh, or within fifty miles of either, nor in any town in Great Britain or Ire- land, in which the plaintiff, or his successors, might at the time have an establishment, or might have had one within the six months preceding," was held not unreasonable (t). And in the following case also the agreement was upheld as reasonable (u) : — Dendy v. By agreement reciting that the plaintiff, being solicitor for, Henderson. and general manager of, certain estates at Torquay, in the Agreement parishes of Tormoham and St. M., and havins: occasion for the I^fATt!!!) 1=^^' services 01 a managmg clerk, to reside at lorquay, nnding it sident clerk, expedient to establish an office there for the transaction of law and other busine^^s, had proposed to appoint the defendant as resident clerk there, upon his entering into the agreement thereinafter contained : it was agreed that defendant should continually reside, except as otherwise directed by plaintiff, at Torquay, and to have the use of three rooms in the house where such oifice should be kept ; that defendant should have the salary therein mentioned, and should exclusively devote his time and attention to the interest of the plaintifJ', and should not make use of his own name in any business matter or as agent, except as agent for plaintiff, his executors, &c., and should not take any other situation, or transact any other business on his own account, or for his own profit, or on account or for the profit of any other person than plaintiff, liis executors, &c., without his consent ; that either party should be at liberty to determine the agreement by notice, as therein mentioned; but in case of any such determination by either party, the defendant should not, unless with and during the consent of the plaintiff, (such consent to be revocable at any time,) for the space of twenty-one years from the expiration of such notice, and not- withstanding the decease of the plaintiff previous to or during the period aforesaid, reside in the parish of Tormoham or of St. M., or within twenty-one miles thereof) or transact or carry on therein or within the distance aforesaid, either for himself or any other person, or in partnership or connexion with any other (p) Bf«nw v. (?«?/, 4 East, 1 90 ; (s) Mallan v. M. &. L. 898. 7 C. B. 201 ; Lush V. Russell. 5 (g) 2 Stark. 256. See this case, Exc. 203 ; S.C.I L. M. & P. 369. supra. 78 THE DUTIES OF THE SERVANT TO THE MASTER, ETC. without per- Bi'ouncker (h), and confirmed by the Court of Queen's Bench, mission. j,j Amor v. Feuron {i), tliat tlie wilful disobedience of any- lawful order of the master is a good cause of discliarj^e. Here the plea discloses a perfectly lawful order, nauitdv, that the de- fendant should not absent herself from the service during- a night, and the plaintiff's disobedience thereto. Then the question is, . Avhether the replication discloses sufficient ground of excuse for such disobedience. Prima facie the master is to regulate the times when his servant is to go out from, and return to, his house. Even if the replication showed that lie had notice of the cause of her request to absent herself, I do not think it would be sufficient to justify her in disobedience to his order ; there is not any imperative obligation on a daughter to visit her mother under such circumstances, although it may be unkind and uncharitable not to permit her. But the replication states nothing to show that the defendant had any notice or know- ledge of the mother's illness." jii'-'v. And similar principles were laid down in a case(/i) in which Elwin. the pkiintiff was engaged as a waggoner to the defendant, but Farm ser- during the harvest worked in the field generally. The practice to "vort-""*'"^ was, during harvest, to work till eight o'clock in the evening, during "har- The plaintiff refused to work till that hour, not as being an un- vest wiiiiout reasonable hour, or as not being within the terms of his con- tract, but because strong beer of good quality was not allowed to him, according to a custom which he alleged to exist, but could not prove. The beer supplied being, as he contended, very bad small beer, not so good as water ; v/hereupon the defendant refused any longer to employ the plaintiff, and took him before a magistrate, who discharged him, and he brought his action against the defendant. But it was held that the de- fendant had a right to discharge him, and must be taken to have exercised that right by ordering him not to return, taking him before a magistrate, and acquiescing in the magistrate's order of discharge. Disobedience However, where the plea to an action for wrongful dismissal causing loss, gg^g ^p as an excuse disobedience of orders causing loss, it is not sufficient to show disobedience which did not occasion a loss(/). Obstinate And a mere obstinate refusal to work will not, of itself, justify refusal. ^jjg djgniissal of a servant, as it might be an obstinate refusal to do an unlawful act (e.g., to work at trade on Sunday) {m). Moral mis- H. Gross moral misconduct, whether pecuniary or other- conduct, ^jgg (,j)_ Robbery. Thus, if a servant robs his master, he may, although a {h) 4 C. & P. 518. (?0 Callo v. Brouncker, 4 C. & li) 9 A. &. E. 548. See this P. 518. See Burgess v. Beau- case, post, p. 80. mont, 7 JM. & G. 902, where a (A-) LiUeij V. Elwin, 11 Q. B. plea, imputing general iminoral- 74"2, 756. ity and dishonesty to a gover- (/) Cussons \. Skinner, 11 M. ness, was held too vague and un- & W. 161. certain, and a demurrer on that (jh) Jacquoty. Bourra, 7 Dowl. ground was allowed. 348. DISCHARGE OF SERVANT. 79 month's notice is required, dismiss him without anj' notice, and need not pay him any wages (o). ' And if a servant habitually embezzle his master's property, Emhezzle- the amount embezzled is wholly immaterial ; and although the ™^"'- arrears of wages sought to be recovered may exceed the amount embezzled, the servant is not entitled to anything (p). And where (^) the accountant to a company received money BaiiUev. for which he did not account, and falsified the accounts furnished •'^'^"■ by him, his employers were held justified in dismissing him, Accountant although they did not assign that as the cause of his dismissal. account's^ Upon similar principles it has been held, that a clerk and ^^^^-^ ^ traveller, at 80/. a year, who lived and boarded in his master's Acton. liouse, was rightfidly dismissed for assaulting his employer's cierk at- maid servant, with intent to ravish her (r). And it is said that tempting to a maid servant being with child (s), or a man servant being the servant™^' father of a bastard child (^), is a good cause of discharge. And it would probably be held, that a street-keeper or other Street-keeper officer receiving gratuities for conniving at the breach of regu- receiving gra- lations, which it was his duty to enforce, might properly be dis- connivance at missed for so doing (?/). And drunkenness would also be a breach of justifiable cause of discharge, if pleaded (f). '^"''''*' Drunken- III. Habitual negligence in business, or conduct calculated "'^^^• seriously to injure his master's business. Upon this ground, in an action for a month's wages by a Negligence. servant who was dismissed without warning, on the ground that he was negligent in his conduct, frequently absent when his master wanted him and often slept out at nights. Lord Kenyon held that the plaintiff was not entitled to recover on account of his misconduct. And, in another caie{x), Lord Wensleydale said, " That for habitual neglect the defendant was at liberty to yjart with the plaintiff." And, in another (y), Park, J., observed, " If a servant is negligent in his business, and injures his master, I am not prepared to say that the master may not dismiss him, as if he were kept it might be very inju- rious, as he might do the business very carelessly when he knew he was not to be kept longer." Upon these principles, the Turner v. foreman to silk manufacturers was held to be rightly discharged Robinson. (and, moreover, liable to an action), for advising and assisting Advising an apprentice to quit their service and go to America (c). And qu?tf" '^^ ° the clerk to a company was held to be riehtly dismissed for enter- 7j;rf„„,„„ y ing in a minute-book a protest, in his own handwriting, against TheHunyer- (o) Per Park, J., in Cunning- (u) See Bogg v. Pearse, IOC. ham v. Fonhlanque, 6 C. & P. 49. B. 531 ; S. C. 2 L. M. & P. 21. (p) Brown v. Croft, 6 C. & P. (v) Speck v. Phillips, 5 M. & 16, note; and see Spotswood v. W. 279; Wise v. Wilson, 1 C. & Barrow, 5 Exc. 110. K. 662, post, p. 81. {q) Baillie v. Kell, 'i Bing. N. (x) Robinson v. Hindii.an, 3 C. 638. Esp. 235. (r) Atldn v. Acton, 4 C. & P. {(/) Callo v. Brouncker, 4 C. & 208. P. 518. (s) Cald. 11. («) Turner v. Robinson, 5 B. & [t) R. V. Welford, Cald. 57. Ad. 789. 80 THE DUTIES OF THE SERVANT TO THE MASTER, ETC. ford Market Company. Lncy V. Osbaldiston. Acting ma- nager of theatre guilty of conduct likely to injure it. Read v. Duvsmore. Master builder dis- missing car- penter lor poaching on employer's premises. Amor V. Fearon. Clerk claim- ing to be partner. Cussons V. Skinner. Manager of company ac- a resolution of the directors, calling a meeting to appoint his successor, as such an act was inconsistent with his service (a). So in an action by the acting manager of Coven t-garden theatre, for wrongful dismissal from his situation, &c. (/>); to which, amongst other pleas, the defendant pleaded that the plaintiff's conduct was calculated to prejudice the interests of the theatre: Vanghan, J., said, "It is a question of fact, whether the plaintiff was so conducting himself as that it would have been injurious to the interests of the tlieatre to have kept him {c). If he was, I should have no difficulty in saying that it would be good ground of dismissal." Again, where (d) the defendant, a master builder, dismissed the plaintiff, a journeyman carpenter, for poaching on the pre- mises of Mr. T., a gentleman for whom the defendant was working, and at whose premises the plaintiff was engaged working, Coleridge, J., in leaving the question to the jury whether or no this was just ground of dismissal, said, "In dealing with this question, I think that you ought to consider what Mr. T. had a right to expect from the defendant and his men. If a gentleman engages a tradesman who has several workmen under hin), he has a right to expect tliat the work- men will conduct themselves well. It is said that they did no damage ; but I do not think that it entirely depends on that, because it might have been, that Mr. T. might have said, * I will not allow the workmen to go into my garden,' and if they had done so, they would have done no actual damage ; but, still, if the defendant employed persons who acted in that way, he would soon find that he was injured in his business, and would lose his custom, because gentlemen would not engage him." So a wine merchant (e) was held justified in dismissing a clerk, at a yearly salary, who also, at certain periods, received a portion of the profits (but this, as the master alleged, was a mere gratuity), for claiming to be a partner, as he thereby dis- claimed being a servant. And it was said by Lord Abinger (/), that the accepting of an undrawn bill of exchange, in blank, by the manager of a cotton company, was wrong, and would have been a very jus- (a) Ridgway v. The Hunger- ford Market Company, 3 A. & E. "171. (6) Lacy v. Oshaldiston, 8 C. & P. 80. (c) And see The East JngUan Railway Company v. Lyihgoe, 2 L. M. & P. 221. (d) Read v. Dunsmore, 9 C. & P. 588. (e) Amor v. Fearon, 9 A. & E. 548. See also Greenham v. Gray, ante, p. 36 ; and Mercer v. JVhall, 5 Q. B. 447, where, to an action of covenant by an articled clerk against a solicitor for dismissing him, the defendant pleaded that the plaintiff conspired to induce the defendant's clients to leave him, and disclosed his profes- sional secrets. See also in Hob- son v. Cowley, 27 L. J., Exc. 205, a plea that plaintiff, whilst in defendant's service, entered into negotiations for carrying on the same business as defendant with- out his consent. (/) In Ctissons v. Skinner, 11 M. & W. 170. The decision in that case, however, did not turn on this point. DISCHARGE OP SERVANT. HI tifiable cause of discharging him the next day after it was cepting bill discovered ((7). _ _ ^ ^''*"'^- But it has been held(/i), that a schoolmaster was not justified FUieui v. in discharging the plaintiff, a teacher of French and drawing, ^'■''"''"'"'i'- for not returning to the school for two days after the vacation, ^''entji mas- ,., ° , , 1 • • fr> 1 1 1 •! !• ter not re- as it did not appear that the plamtin had been guilty ot any tumintj for immorality, nor that the defendant was obliged to hire another f^o days person, or that the plaintiff's department was not, in fact, ['j^^ adequately filled, nor that the instructions in French or drawing were impeded, or that the business of the school was suspended for a single hour. And where (i) a surgeon by a written agreement, not under Wisew seal, agreed with the plaintiff, in consideration of a premium of '^''*'"'- 50Z., to take her son, a young man seventeen years old, as pupil Surgeons and assistant for three years, to assist him in his studies, to allow gettingdrunk him to attend lectures, and to provide him with board and and making lodging, but dismissed him in consequence of his coming home mediciner '^ drunk about five times, and on some occasions, when he came home late, desiring the shop-boy to make up the medicines, Lord Denman, in summing up to the jury, said, "There is a great distinction between a contract of apprenticeship and a contract with a servant. A person has a right to dismiss a ser- vant for misconduct, but has no right to turn away an appren- tice because he misbehaves. This is a mixed case, something between that of apprenticeship and service. The plaintiff's son goes to the defendant to render assistance to him in his business, although he is also to pursue his studies ; and as a justification of his dismissal, the defendant has pleaded not that the plaintiff's son did not perform all things on his part to be performed, but that he did things injurious to the defendant's practice, and so misconducted himself as to be dangerous to the defendant's practice as a surgeon. It is proved beyond all doubt that, on some occasions, the plaintiff's son came to the defendant's house intoxicated, but I think that that alone would not justify the defendant in dismissing him. It is also proved that, on several occasions, in consequence of the plaintifi''s son coming home late, he could not compound the medicines, and employed the shop-boy to do it. Now, I think, this affords matter for serious consideration, and if you think that from this conduct of the plaintiff's son real danger teas occasioned to his master's busi- ness, you ought to find your verdict for the defendant, as tlic defendant ivas then, in my opinion, justified in dismissing him." But the plaintiff had a verdict. {g) And see The East Anglian titled to his salary up to his Railway Company v. Lytligoe, discharge. 2 L. M. & P. 221, where a {h) Filleul v. Armstrong, 7 A. clerk to a railway company was & E. 5.57. dismissed lor disclosing ac- (i) IVise v. Wilson, 1 Carr. & counts of tlie railway to another K. 662 ; see Phillips v. Clift, 4? company ; but, under the circum- H. & N. 108 ; S. C. 28 L. J., Exc. stances of the case, the County 153, Court judge thought him en- 82 THE DUTIES OF THE SERVANT TO THE MASTER, ETC. Smith V. Thompson. Clerk to shipping; agent apply- in}; money given for business purposes to his own salary. Lomax v. A rding. Manager of ironworks not trying to promote master's in- terests. Bray v. Chandler. Agent for- bidden to receive money re- ceiving it. Cross action when neces- sary. And where (//) the plaintiff' was entraged as clerk to the de- fendant, under a contract of hiring for two years, to conduct the business of a shipping agent at Southampton, and in the course of his employ it was his duty to pay freigiit, dock dues, &c., to meet which the defendant remitted money. On one occasion the plaintiff' wrote to the defendant for 140/., inclosing an account of tlie purposes for which it was required, one of them being the payment of 3UZ. salary due to himself. Ten days afterwards the defendant sent the plaintiff" 100/. in a letter, directing him to apjily the money for " business purposes," and he a])plied 80/. in payment of his own salary, whereupon the defendant discharged him, and the plaintiff' brought his action for wrongful discharge. At the trial the judge lett it to the jury to "say whether the plaintiff' bad been guilty of any wrongful and improper ap]iropriation of the money, or of dis- obedience of orders. And it was lield by the Court of Common Pleas to have been properly so left, and that the judge was not bound to tell the jury tliat it was not nece^^sary, to justify the dismissal of the plaintiff', that he should have been guilty of any moral turpitude. And where (/) the plaintiff" agreed with the defendant to serve him for three years as manager of certain ironworks, at a salary of 4/. per week, upon the terms that the plaintiff" would during that time use his best endeavours to promote the interest of the defendant, and attend to and carry out all reasonable requests made to him by the defendant, a plea that tha plaintiff" did not, ■while he was in the defendant's employ under the agreement, use his best endeavours to promote the interest of the defendant according to the agreement, therefore the defendant disuiissed the plaintiff", and refused to pay him any salary after such dis- missal, was held a good plea to an action for wrongful dismissal. In that case. Pollock, C. B., said, "Suppose the plaintiff had conducted himself on all occasions in a negligent and lazy spirit, there may be insuperable ditficulty in a legal definition of the plaintiff''s conduct, and yet the defendant would be justified in discharging him from his service. It would be a question of evidence." Where, by an agreement in writing, A. was appointed sur- veyor or agent of B. for two years and a half, at a salary of 200/. a year, and a commission on every house let by him for B., and the agreement expressly provided that under no pretence what- soever should A. be considered B.'s agent to receive any money on his account : it was held that A. having received deposit money from persons to whom he had let houses for B., was a good defence to an action for dismissing A.beibre the end of the term (ni). If, however, the servant's misconduct be not such as to go to the whole consideration of the contract on the part of the master, he will not be justified in dismissing the servant, but must, if necessai'y, resort to a cross action against the servant. (/,-) Smith v. Thompson, 8 C. B. 734. 44. [m) Bray v. Chandler, 18 C. B. (/) Lomax v. Arding, 10 Exc. 718. DISCHARGE OF SERVANT. 83 Where, therefore (n), to an action for wrongfully discharging Goulds. the plaintiff from the defendant's employ, as European cor- '*''*''''• respondent of a newspaper, at a salary, the defendant pleaded. Newspaper firstly, that the engagement was made upon the terms and con- denfomit- dition that the plaintiff should, bj^ every steamer from Liverpool ting to send to New York, forward a letter containing European news, but "^^^^^g"''''' plaintiff wrongfully neglected to forward any letter containing drawin},' for such news by several steamers that sailed from Liverpool to salary, no New York, wherefore defendant discharged him ; and also, disciiarge. secondljs that defendant employed plaintiff upon the terras and condition that plaintiff might draw bills upon defendant for the amount of his salary as it should become due, but not for any sum not due : but plaintiff wrongfully drew on defendant and negotiated bills for sums not due, which were presented to defendant and dishonored to the damage of defendant's credit, wherefore defendant discharged plaintiff. Both pleas were held bad on demurrer, as not showing a default by plaintiff going to the whole consideration of defendant's contract. The breach of the stipulations on the part of the plaintiff did not amount to such misconduct as to authorize the defendant to discharge him. It might have been that there was no news to send ; and the second plea would be satisfied by proof that tlie plaintiff had drawn a bill for half-a-crown too much. AVhere an act of wilful disobedience of a lawful order, or If ?ood other misconduct on the part of a servant which would justify ^[°"i^!f "e his master in discharging him, is known to the master at the exist and time he discharges him, although he does not insist on that as '^ known the precise ground of discharge, or even if he allege some other ^g^, it is ground of discharge; yet the master may afterwards, by show- suiiicientto ing that the fact existed, and that he knew it, iustifv such J"*"/^ ^^'^ discharge on that ground (o). But it would seem that ii the master, at the time he discharged the servant, did not hnoiv of different any act of misconduct on the part of the servant which Avould ground justify his discharge, although such fact existed, the mere exist- ^"'^s^''- ence of the fact would not justify the discharge (p). In a j^ '''*'''' ^J^"'"^ case, however, in which a traveller and salesman brought an exist, action for wrongful dismissal, and the defendant pleadedin jus- Spoiswoodv. tification that the plaintiff had received money from the defend- Barrow. ant's customers and embezzled it, wherefore he discharged him ; to which the plaintiff replied de injuria, and it appeared in evidence that the defendant did not know of the embezzlement when he discharged the plaintiff, it was held that on tliese pleadings the judge who tried the case was wrong in leaving it to the jury to say whether the defendant discharged the plaintiff for that cause, as the defendant's motive was not in issue {q). IV. Incompetence, or permanent disability from illness. Where a servant of any sort is engaged on account of his skill incompe- (n) Gould V. Wehh, 4 E. & B. 161 ; Mercer v. Wludl, o Q. B. 933. 417. f o) 7?(7?7/?e v./Tei?, 4 Bing. N.C. {p) Cussotis v. Skinner, ubi C38 ; Ridgway v. Hungerjurd supra. Market Company, 3 A.& E. 171 ; {q) Spotswood v. Barroiv, 5 Cussons v. Skinner, 11 M. & W. Exc. 110. <^4 THE DUTIES OF THE SERVANT TO THE MASTER, ETC. tence Rood or ppculiiir ability to pcrforni certain duties, and turns out to be (.'round of perfectly unskiltiil and incompetent to discharge the duties for discharge. y^,\^i(,]^ },e -^yag hired, the master will be justitied in rescinding Jiannerv. tlie Contract and discharging the Servant. Thus, where in an an- Cunii-iius. g^^.^j, jy ^^ advertisement in a newspaper for scene-])ainters, the plaintiff' apjilied to the defendant, a correspondence ensued, and tlie defendant ultimately hired the plaintiiiin that capacity, but lie turned out to be quite incompetent, and was discharged. It was held that such incompetence was a valid reason for dis- charging liim, and in an action brought as for a wrongful disclmrge, the defendant succeeded (r). In giving judgment for the defendant in that case, Willes, J., said : " Where a skilled labourer, artisan or artist is employed, there is on his part an implied warranty that he is of skill rea- sonablv competent to the task he undertakes — ' spondes peritiam artis.' Thus, if an apothecary, a watchmaker, an attorney, be employed for reward, they each impliedly undertake to possess and exercise reasonable skill in tlieir several arts. The public profession of an art is a representation and undertaking to all the ■world that the professor possesses the requisite ability and skill (s). An express promise or express representation in the particular case is not necessary. It may be, that if there is no general and no particular representation of ability and skill the workman undertakes no responsibility. If a gentleman, for example, should employ a man that is known never to have done anything but sweep a ci'ossing to clean or mend his watch, the employer probably would be held to have incurred all risk himself. But in the case under consideration, the correspond- ence shows, in addition to the implied representation, an express and particular representation by the plaintiff that he did possess the requisite skill. The next question is this: supposing that when the skill and competency of the party employed are tested by the employment he is found to be utterly incompe- tent, is the employer bound, nevertheless, to go on employing him to the end of the term lor which he is engaged, not- withstanding his incompetency ? This is a question upon which we have been furnished by the bar with no authority, probably because such labour being seldom retained for a long terra certain, the question has not often arisen. But it seems very unreasonable that an employer should be compelled to go on employing a man who having represented himself competent turns out to be incompetent. An engineer is retained by a railway company to drive an express train for a year, and is found to be utterly unskilful or incompetent to drive or regu- late the locomotive, are the railway company still bound, under pain of an action, to entrust the lives of thousands to his dangerous and demonstrated incapacity l A clerk is retained for a year to keep a merchant's books, and it turns out that he is ignorant not only of bookkeeping but of arithmetic, is the merchant bound to continue him in his employment? Misconduct in a servant is, according to every day's experience, a justification of a discharge. The failure to afford the requisite skill w hich (r) Harmer v. Cornelius, 28 L. {s) See Jenkins v. Betham, 15 J., C. P. 85. C. B. 188. DISCHARGE OF SERVANT. 85 Lad been expressly or impliedly promised, is a breach of legal duty, and therefore misconduct. The rule of the civil law — * Imperitia culpce adnumeratur'' applies. We may add that a precedent of a plea grounded on the implied condition of com- petency, is to be found in the late Mr. Joseph Chitty's book on Pleadings, edited by the late Mr. Pearson, p. 363. So in Spain V. Arnott (t), Lord Ellenborough, speaking of a servant who had refused to perform his duty, says, ' The master is not bound to keep him on as a burthensome and useless servant to the end of the year ;' and it appears to us that there is no material difference between a servant who will not, and a ser- vant who cannot, perform the duty for which he was hired." But where (u) the plaintiff, having entered into an agreement Cuchsonv. that he should serve the defendant and W. for ten years in the '^'''"''*- capacity of abrewer, and teach them to brew : that the defendants Temporary 1 -ixt"^ 1 1 • -If /-.^7 1 • f 1 illness no and vV. were to pay the plaintirr 20/. on the execution ot the suspension agreement, to find him a house, and to supply him with coals of wages for the ten years, and to pay him the weekly sum of 21. 10s. manentcon- during that term. He served the defendant and W. till W.'s tract not death, and afterwards worked for defendant up to Christmas, rescinded. 18.57, when he was taken ill. He was confined to his bed till March, and was unable to attend to his work till 19th July, 1858, when he was again employed about the brewery, and paid as before. During his illness he was from time to time consulted by the defendant as to the mode of brewing, but was unable to do any actual work for defendant ; and it was ad- mitted that the contract had not been rescinded. It was held that the plaintiff was entitled to recover under it the w ages for the time during which he was disabled by sickness from work- ing ; although a plea to the claim for wages that the plaintiff was not during the time in question ready and willing or able to render, and did not in fact render, any service, was held on demurrer to be a good plea in point of law, in the sense that the plaintiff voluntarily and wilfully refused or omitted to serve. And in giving judgment. Lord Campbell said : " We concur Contract in the observations of Willes, J., in Harmer v. Cornelius, and ™sg|'n(i'^^ jf if the plaintiff from unskilfulness had been wholly incompetent servant per- to brew, or by the visitation of God had become, from paralysis ".^-^"f/^^'^r^ or any other bodily illness, permanently incompetent to act in uhfesst ^ the capacity of brewer for the defendants, we think that the defendants might have determined the contract. He could not be considered incompetent by illness of a temporary nature. But if he had been struck with disease so that he could never be ex- pected to return to his work, we think the defendants might have dismissed him and employed another brewer in his stead. Instead of being dismissed he returned to the service of the defendants when his health was restored, and the defendants employed liim, and paid him as before. At the trial the defendants' counsel admitted that the contract was not rescinded. 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 (0 2 Stark. 256. (m) Cuckson v. Stones, 28 L. J., Q. B. 25. 86 THE DUTIES OF THE SERVANT TO THE MASTER, ETC. inability to work. It is allowed that under this contract there could be no deduction from the weekly sum in respect of his haviujj been disabled by ilbiess from working for one day of the week ; and whiic; tiie contract remained in force we see no difference between liis being so disabled for a day, or a week, or a month." 2. AS BETWEEN THE MASTER AND THIRD PERSONS. Remedies of A master may maintain an action against anj'' person who master by deprives him of the services of his servant, either by enticini; third persons him away irom his master (.r), or by liarbouring and detaming for depriving' him after having been apprised of the former contract (//) ; or I"n''S*!Ir bv beatiuir, confining or disabling him : or by seducing a female > ices 01 ser- ** o? <^ <^ ^ i i vant. servant (r). Ihe master may also, where wages have been earned by a servant enticed away or harboured by another per- son, waive his right of action for sucli tortious act, and sue tor the earnings of his servant. In all these cases the master's right of action arises out of the property which he has acquired, Loss of ser- by the contract of hiring, in the labour of his servant; and in vice gist of all of them, except the action for bis servant's earnings, the buc I action ; ^.j^^. ^^ ^^^^ action is the loss of service, without an allegation of which no action can be sustained by a master, however great the injury to his servant {a). Whilst, therefore, on the one hand, a mere attempt to deprive a master of the services of his servant without any damage following upon it would not give the master a right of action (A), so, on the other, it hiis been held that a master, who has recovered in an action against the servant a stipulated penalty for leaving his service, cannot maintain an action against the person who induced him to and must be leave (c). Moreover, the loss of service must be the natural the^necessary ^^^ necessary consequence of the defendant's act, otherwise the ofdefendant's master cannot maintain any action. Where, therefore, the att- director of certain oratorios had, at considerable expense, en- gaged one Mara, who, in consequence of a libel published by the defendant, refused to sing, being afraid of being hissed ; Lord Kenyon held that the plaintiff:' could not maintain an action against the defendant, as the injury complained of was too remote, and impossible to be connected with the cause assigned for it (d). {x) F. N. B. 91, I., 167 B. Uama, 10 Q. B. 725. That the (y) F. N. B. 168, Winch, 51. allegation of service under a. per {%) Com. Diir. Trespass, B. 5; quod servitium amisit is sufficient Pleader, 3 M. 11. on general demurrer, see 4 D. & (rt) Robert Mary's Case, 9 L. 258. Rep. 113a; Foley v. Osborn, {h) Per Lord IMansfield in cited 10 Rep. 130 h ; Hanhury v. Bird v. Rnvdall, 3 Burr. 1352. Ireland, Cro. Jac. 618; Chamber- (c) Bird v. Randall, ubi supra. line v. Harvey, 5 Mod. 182; S. C. Sed quare, see post, p. 89. 1 Lord Raym. 14-6 ; Hall v. Hoi- (d) Asldeyv. Harrison, 1 Esp. lander, 4 B. & C. 660; Grinnell 48; S. C. Peake. 194; that was v. JCells, 7 M. & G. 1033 ; S. C. an action for libel. And see 2 D. & L. 610 ; Eager v. Grim- Taylor v. Neri, 3 Esp. 386. wood, 1 Exc. 61 ; Davis v. U'il- OF THE ACTION FOR ENTICING AWAY A SERVANT. 87 OF THE ACTION FOR ENTICING AWAY A SERVANT. An indictment will not lie for enticing an apprentice or ser- indictment vant away from his master, it being only a private injury, ^^'I'lo'lie; which may be redressed by a civil action (e). The Court, how- ever, will not, on motion, quash such an indictment (_/") ; but the defendant must plead demur, or move in arrest of judg- ment {g). But an agreement to induce and persuade workmen ^"^^ ^j" for under contract of servitude for a time certain to absent them- <^°"5P'f^<^y- selves from sucli service, is an indictable offence, although no threats or intimidation be proved, or any ulterior object averred {h). And so is a conspiracy to obstruct a man in carry- ing on his business, by persuading his workmen to leave him, in order to induce him to make a change in the mode of carrying on his business (i). And if one take away my apprentice or servant by force, Action will an action of trespass will lie {k) ; but if he merely entice him to ''®' leave and he do leave, an action on the case is the proper remedy {I). A mere attempt to entice a servant away without Mere attempt any damage following would not, however, entitle the master ^''11 "°h^"^" •^ , .^ ' \ Tt • ' !•• port aciion. to manitain an action [vi). But it is no objection to such an action that the servant was only a journeyman, who worked by the piece, if he were the plaintiff's servant (n). A man, how- ever, who lived in his own house, and took in work for different people, could scarcely be called the journeyman of any par- ticular master (o). A question has been raised as to what sort of servants this What sort of action may be brought for the seduction of. And it has been ^"yants this held by three judges of the Court of Queen's Bench {p), that pues to. (e) R. v. Daniel, G Mod. 99, service of another testamentary 182; S. C. 1 Salk. 380; S. C. 2 guardian. Lord Raym. 111(J; Com. Dig. (/) R. v. Daniel, ubi supra ; see Indictment, G. 3 ; see 5 Geo. 4, Hambleton v. Veere, 2 Wms. c. 97, which repealed various Saund. 170. statutes for preventing the se- {m) Bird v. Randall, 3 Burr, ducing and enticing artificers 1352. and workmen to leave their em- {n) Hart v. Aldridge, Cowp. ploy and go to foreign parts. 54 ; Blake v. Lainjoii, 6 T. R. 221. (/) Trin. 13 Will. 3, B. R. ; (o) Hart v. Aldridge, Cowp. see R. V. Bilton, 1 Salk. 372. 54. ig) As in R. v. Daniel, ubi (p) Lumley v. Gye, 2 E. & B. supra. 216 : where it was held that an (/() R. V. Rowlands, 5 Cox C. action lay for seducing a dramatic C. 466. performer away from plaintiff's (i) R. V. Duffield, 5 Cox C. C. theatre. Coleridge, J., in sup- 404; and see R. v. Selsbij, ib. port of his judgment, refers to 495, note. the 2nd section of the Statute of (k) R. V. Daniel, ubi supra; Laborers and the form of writ Reaveley v. Mainwaring, 3 Burr. given by Fitzherbert, N. B. 167, 1306; Gilbert v. Schtvenck, 14 B, as always reciting the statute. ^L & W. 488 ; where it was held But the first writ given by Fitz- that one testamentary guardian herbert is founded upon the 3rd was not justified in taking an section of the statute, and is to infant ward out of the lawful recover the penalty there given «8 TUB DUTIES OF THE SEUVANT TO THE MASTER, ETC. Scienter. Binding con- tract. Service de faclo. AVlien this action will not lie. an action lies for maliciously ])rocuring a breacli of con- tract to give exclusive personal services for a time certain, ecjiuilly whether the employment has commenced, or is only in fieri, ])rovide(l the procurement be during the subsistence of the contract, and produces damage, and that to sustain such an action it is not necessary tliat the employer and emidoyed should stand in the strict relation of master and servant. Coleridge, J., however, dissented, and in a long judgment, which deserves an attentive perusal, gave elaborate reasons for holding that the action was founded on tbe Statute of Laborers, and is strictly confined to cases where the employer and em- })loyed stand in such lelation of master and servant as was within that statute; and that in all other cases the remedy for a breach of contract is only on the contract, and against those privy to it. To support this action, it is necessary to prove that the de- fendant knew the person to be the plaintiff's servant {q) ; but not to particularize the means of enticement (?•). There must also be a binding contract of service between the servant and his first master, or the plaintiff will fail(s) ; unless, perhaps, in the case of interruption of an actual subsisting service (^j. But the mere circumstance that the servant is an infant, and the contract therefore voidable, will not defeat the action (z<). This action will not lie for inducing a servant to leave his master's service at the expiration of the time for which he was hired, to the party grieved. The other writs are against the ser- vant, and it would hardly be con- tended at the present day that such actions must be confined to tlie class of servants referred to by the Statute of Laborers. It would seem also from the rule given in Lutw. 1548, that the mere recital of the statute would not show that the action lay not at common law. It is there said that where an action lay both at common law and by statute, if you proceed under the statute you must recite the statute, for " witliout reliearsal, non patet, whether he uses the action by the common law, sicut potest, or the action on tlie statute." It is also adiled, " If there were no action at common law, the sta- tute should be rehearsed." So the recital of the statute in a writ does not prove that the ac- tion did not lie at common law, but only that the phiintifF is not ushig the action at comiuoii law, in tins instance. Thus leaving the matter where it was. Again, it may be asked, if this form of action is founded entirely upon the Statute of Laborers, why did it not cease when that statute was repealed, 5 Eliz. ? More- over, if the judgment of Cole- ridge, J., is right, what becomes of the common action for seduc- tion of a daughter and servant ? Is that to be only brought in cases within the Statute of La- borers? It is notoriously other- wise. (q) Fores V. Wilson, Peake, 5.5. (r) Winsmore v. Greenbank, Willes, 582. («) Sijkes v. Dixon, 9 A. & E. 693 ; and see Gye v. Felton, 4 Taunt. 876; PiUcington v. Scott, 15 M. & VV. 657 ; Hartley v. Cummings, 5 C. B. 247. (t) See per Lord Denman, in Sykes v. Dixon, uhi supra ; and per Maule, J., in Hartley v. Cummins;s, ubi supra ; and see Y. B. 22, Hen. 6, 30 ; Barber v. Dennis, 6 Mod. 69 ; Keane v. Boycott, 2 H. Bl. 511. (h) Keane v. Boijcott, ubi supra, and see 7 T. R. 310,314. OF THE ACTION FOR HARBOURING A SERVANT. 89 although the servant had otherwise no intention of leaving his master (x). It was also held by Lord Mansfield, in Bird v. Randall {y). Bird v. that this action would not lie after the master has recovered ^""daii. from the servant a stipulated penalty for leaving the service, N°' after upon the ground, that if the seducer, or second master who servant of employs the servant after the servant has paid the penalty, were penalty for to be liable to damages in an action brought by the first master leaving, for so doing, this would finally fall upon the servant, and in effect be an addition to tlie penaltj'^ ; for the second master would pay the servant for his service no more than he estimates it to be wortli to him ; and if he must pay a sura of money to the first master for damages for entertaining his servant, he will make his bargain with the servant in such manner as to pay him so mucii the less. And Lord Ellenborouerh said (z), he remembered Wilson, J., ruling the same point at Nisi Prius upon the dry authority of tlie former decision, though, as it seemed to him, with considerable doubts upon his mind as to the pro- priety of it. But Lord Ellenborough said he never could Sed qucere. entirely comprehend the ground on whicli Bird v. Bandall proceeded. " It was assumed," said he, " that the sum taken as the penalty from the servant, was the extreme limit of the injury sustained by the master ; but there is tiie doubt : for the penalty might have been so limited, because of the inability of the servant to undertake to pay more, and yet it might have been very far from an adequate compensation to the master for the injury done to him by another who seduced his servant from him." And upon Lawrence, J., observing, " I suppose the Court proceeded upon the ground that the penalty was by the express stipulation of the parties made an equivalent for the loss of the service ;" Lord Ellenborough added, " That is so as between the parties themselves ; but it may admit of doubt whether that were the fair way of considering it as against a stranger, a wrongdoer." It is conceived that, in the event of the death of the wrong- On death of doer, this action, and also that for harbouring a servant, might wrongdoer. be brought against his executors or administrators, under 3 & 4 Will. 4, c. 42, s. 2, within six calendar months after they have taken upon themselves the administration of his estate, if the injury were committed within six calendar months before his death. OF THE ACTION FOR HARBOURING A SERVANT. Where a person, after notice, continues to employ another Aftemotice. man's servant, that other may maintain an action against him, although, at the time he hired him, the second master did not (a) Nichol v. Martin, 2 Esp. D. & L. 218; Bucldand v. John- 734. son, 15 C. B. 145. (y) 3 Burr. 1345; S. C. 1 W. (?) In Godsall v. Boldero, 9 Bl. 373, 387 ; see Cooper v. East, 78. Shepherd, 3 C. B. 266 ; S. C. 4 90 THE DUTIES OF THE SERVANT TO THE MASTER, ETC. Blake v. Lanyon. Master en- titled to ser- vant's earn- ings. know that lie was hiring another man's servant ; and, therefore, no action would lie for enticing' him away (a). Thus, where (/;) one Ilobbs, who was retained by the plain- tift', a currier, to work by the ])iece, left the plaintiff's service on a di>pute between them, and at the time of departui'e had some work in iuind ; he then applied for work to the defendant, who was also a currier, iind who employed him, not knowing of his engagement with tlie plaintiff. A few days afterwards, the defendant having been apjn-ised by the plaintiff tliat Hobbs was his servant, and had left his work unfinished, and being threatened with an action, in case he continued to employ Hobbs, requested the servant to return to his former master and finish liis work. This Hobbs refused to do, and the defendant continued him in his service, whereupon the plaintiff brought his action for enticing Hobbs away, and harbouring him after notice. No evidence was given in support of the charge of enticing away, and it was contended, on the part of the de- fendant, that no action could be maintained for continuing to employ Hobbs after notice, as at the time the defendant en- gaged him, he did not know he was the plaintiff's servant, but the objection was overruled. And per Curiam, an action will lie for receiving or continuing to employ the servant of another after notice, without enticing him away. This cause of action, however, is generally joined with that for enticing away a servant, and the observations on that form of action apply to this also. The action for harbouring the plaintiff's servants will not lie against the captain of an English ship, to which the plaintiff's slaves had escaped, for refusing to give them up to the plain- tiff (c). OF THE ACTION BY A MASTER FOR THE EARN- INGS OF HIS SERVANT. A master deprived of the services of an apprentice or servant, who has been enticed away and harboured by another master, is not confined to an action for damages for the injury he has sustained by the loss of his servant. He may, in some cases, waive the tort, and bring an action to recover the wages due to his apprentice or servant from such second master ; the maxim in such cases being quicquid acquiritur servo acquiritur domino (d). This rule of law had formerly a much more exten- sive signification than it now has ; for during the existence of (a) Fawcet v. Beavres, 2 Lev. 63 ; Fosset v. Breer, 3 Keb. 59 ; probablv S. C. (b) Blake v. Lanyon, 6 T. R. 221. (c) Forbes v. Cochrane, 2 B. & C. 448. See Smith v. Gould, 2 Salk. 667, as explained by Har- grave in his argument in So7n- mersett's case, 20 How. St. Tr. 65, note. (d) See Barrington on Stat. 276; Co. Litt. i\7 a, note 1; Peake's Add. Cas. 121, note ; Story on Ag. 421 ; Paley on Ag. 339; Grot. lib. 3, cap. 7,'sec.4,2. The French maxim was " Qui a le vilain, il a sa proi/e ;" vide 20 How. St. Tr. 36, note. OF ACTION BY MASTER FOR EARNINGS OF SERVANT. 91 villenage, whatever was acquired by the villein, whether realty or personalty, became the ])roperty of his lord under certain qualifications (e). But even now the rule holds in some degree with respect to apprentices and servants, though with a great difference in point of extent and application, for the relation of an apprentice and servant to the master is more mild and limited than that of a villein to his lord, and only imports that the master shall be entitled to their personal labour during the time stipulated either in a particular way, or generally according to the nature of the apprenticeship or service. Consequently the master cannot claim any other acquisitions than such as are the result of that labour (/). What the apprentice or servant When work- earns by his labour whilst he remains with the master, or is '"s ^o"" ji'^ actually working for him, falls so clearly within this principle, ' that there can be no room for doubt (^). Nor can there beany or with his where the apprentice or servant is employed by another person knowledge with the knowledge and consent of the master, without any circumstances indicating a waiver of their earnings. Most of the cases upon this subject relates to apprentices in a seafaring way, whose wages and prize-money (h) as seamen, though earned whilst in another service, have been recovered by those to whom they were bound. But the principle which governs them seems When work- to apply to apprentices and servants in general, and has indeed jng without been extended so far as to give the master a right to the wages ucence. or earnings, wljether the service is performed by the apprentice with or without the master's licence; and even tliough the earnings accrue in a trade or service different from that to which the apprentice is bound (i). Thus, where (A) the defendant seduced an apprentice iroxa Lightly \. on boai'd the plaintiff's ship in Jamaica, and emjiloyed him as (-'louston. a mariner to assist in navigating his own ship home, tlie plain- tiff brought an action for the wages earned by his apprentice, and recovered. And payment to the master has been held to be an answer Payment to to an action by the apprentice for wages (/). And where (?«) master, good; the captain of a ship let the ship to government at forty shillings and servant per ton per month, to be paid to the owner, and an additional (.over them from him. (e) Litt. ss. 177, 194; Co. Barber v. Deinris, G Mod. 69; Litt. 123 h ; and see the form S. C. 1 Salk. 68. The case of of enfrancliisement of a villein Eades v. Vandeput, 5 East, 39, given in Barr. on Stat. 279. does not appear to be of much {f )See Sha7ileyv.Hervey, cited authority for the reasons given in Sotnmersett's case, 20 How. St. in Foster v. Stewart, 3 M. & S. Tr. 55. 191. {g) See R. v. Wantage, 1 East, (k) Lightly v.Clouston, 1 Taunt. 601; R. V. Bradford, 1 M. & S. 112; and see Foster v. Stewart, 151. 3 M . & S . 1 9 1 ; A^eafe v. Hardivg, {h) See Carsan v. IVatts, 3 6 Exc. 349. Doug. 350, where the master was (/) Bright v. Lucas, Peake's held not entitled to prize money. Add. Cases, 121. See the note the usage being for the appren- at the end of this case, tice to have it. Hill v. Allen, 1 (?«) Thompsun v. Havelock, 1 Ves. sen. b3. Camp. 527 ; see Diplock v. Black- {i) Co. Litt. 117 a, note 1; iunj, 3 Camp. 43. 92 THE DUTIES OF THE SERVANT TO THE MASTER, ETC. This action lies aliLT death of tortiVazor; but admits of set-off. Bloxam v. Elsee. Inventions by servant belong to liini. Alitor, if em- ployed on purpose to invent. Suggestions of servants may he em- bodied in master's patent. shilling' per ton per montli, to be paid to himself, for his ser- vices, but the whole earnings (including the shilling per ton) •were paid to the owner, it was held that the captain could not maintain an action against the owner to recover the shilling per, ton 'agreed to be paid to the ca])tain. One advantage attending this form of action formerly was, that it might be brought after the death of the tortfeazor, which was not the ea^e with an action framed on the tort(M) ; but, on tin; other hand, there was, and still is, this objection to it, that it admits of a set-otf and deductions, which would not be "allowed in the other form of action (o). That, accordingly, is the more usual remedy ; and, as we have seen, it may now be brought against the executors of the tortfeazor within six months after his death (/?). The jury may, in this form of action, if the circum- stances justify their so doing, give the plaintiff greater damages than the mere wages of the servant would amount to. It appears to be an exception to the rule, that a master is entitled to tlie profits resulting from his servant's labour, — that if a servant make an invention whilst in the employ of a master, the invention belongs to the servant, and the master cannot take out a patent for it. Though it is said to be otherwise where the servant is employed for the express purpose of inventing {q). That was the case as to Whitehouse's patent (r). There an individual was employed for the express purpose of suggesting improvements, and trying experiments of all kinds. The master so admitted before the Privy Council, when he applied for an extension of the patent, and the Privy Council, before they granted the extension, compelled the master to give his servant a large remuneration (s). And if a person has dis- covered an improved principle, and employs engineers, or agents, or other persons to assist him in carrying out that principle, and they, in the course of the experiments arising from that employment, make valuable discoveries accessory to the main principle, and tending to carry that out in a better manner, such improvements are the property of the inventor of the original improved principle, and may be embodied in his (n) Per Bayley, J., in Foster v, Stewart, 3 M. & S. 191. (o) Per Heath, J., in Lightly V. Clouston, 1 Taunt. 1 1 2. ip) 3 &. 4 Will. 4, c. 42. s. 2, ante, p. 89. See Powell v. Rees, 7 A. & E. 426. (q) Bloxam v. Elsee, 1 C. & P. 558. In that case Bayley, J., founded his observations on a previous case of one Arkwright, referred to in Hill v. Thompson, 8 Taunt. 395 ; though in Ark- wright's case the invention ap- pears to have been made by the servant before the service com- menced ; in which case it would undoubtedly belong to the ser- vant. But see the Report in Davies' Patent Cases, 61 ; and see Makepeace v. Jackson, 4 Taunt. 770, where it was held that a calico-printer, having dis- charged his head colorman, was entitled to the book in which that servant had entered the processes tor mixing colors during his service, although many of the processes were the invention of the servant. That, however, was only an action of trover for the book which tlie master had originally provided. (r) 1 Webster's P. C. 473. (s) Per Cressvvell, J., in Allen v. Rawson, 1 C. B. 570. OF ACTION BY MASTER FOR EARNINGS OF SERVANT. 93 patent, and, if so embodied, the patent is not avoided by- evidence tliat the agent or servant made tlie suggestions of that subordinate improvement of the primary and improved prin- ciple (^). It would be difficult to define how far the sugges- tions of a workman employed in the construction of a machine are to be considered as distinct inventions by him, so as to avoid a patent, incorporating them, taken out by his employer. Each case must depend upon its own merits. But when we see that the principle and object of the invention are complete without it, I think it is too much that a sugo-estion of a workman em- ployed in the course of the experiments of something calculated more easily to carry^ into effect the conceptions of the inventor should render the whole patent void (m). In a case in which a manufacturer of tubes, at Birmingham, Patent and his foreman (who had a salarj^ of 300/. a year) had together F^",*^^ *" invented certain improvements, for which the master sought both master letters patent, the granting of which was opposed by the fore- ^^d senant. man, it was held by Lord Cranworth, L. C., that the letters patent ouglit only to be granted on the terms of their being vested in trustees for the benefit of both master and foreman (:r). In that case, it appeared almost impossible to say which was entitled to the credit of the improvement in question. However, it has been held that a " Stock Author," sent to " stock au- Paris by the proprietor of an English theatre, for the express paTis toTdap't purpose of adapting a piece there in vogue for representation farce, is. on the English stage, is the " author" of the piece, when so ^•^(^^'1)' adapted, within the meaning of the Dramatic Copyright Act, matic Copy- 3 & 4 Will. 4, c. 15, which vests in the author of any dramatic "ght Act. piece the sole liberty of representing it at any place of dramatic entertainment. This was decided in the following case (7/) : The plaintiffs, who Shepherd v. were the proprietors of the Sui-rey Theatre, agreed by word of ""!?""'• mouth with C., who was what is called a " Stock Author," that he should go to Paris, for the purpose of adapting a piece there in vogue for representation on the Enon. Temporary absence from liome. Colorable hiring. Nor can father sue where his set up the risrhts of tlie husband as an answer to the action if he (Jo not interfere (q). Tlie action may be brought either in trespass or case (r). If the former is brought, as it more usually is when actual violence has been used, tin; ])laintilf may also recover damages for any trespass committed in breaking and entering his house, and assaulting himself (.s). If the latter form of action is adopted, the trespass is Avaived, and the plaintiff can only recover for the consequential damage. But whatever the form of action, the allegation per quod servitiurn amisit is indispensable (t) ; to sus- tain which it is necessary that tlie party seduced should be in the actual service of the plaintiffat the time of the seduction (?<). Where, therefore, the plaintiff's daughter was apprenticed to the defendant's wife, for the ])urpose of learning the business of a milliner, and the defendant seduced her, it was held that the plaintiff could not maintain an action against him for the seduc- tion (.r). So a father cannot maintain an action for the seduc- tion of a daughter who is, at the time of the seduction, in the actual domestic service of another, although she intend to return to her father's house at the end of her term of service (_?/). A mere temf)orary absence, however, from her father's house, as if on a visit to a friend, if not in the actual service of another, would not defeat the action (z). Therefore, where the plaintiff's daughter lived icitli her brother, but went every day to her father's house to do all the household business as when she re- sided with him, and he kept no other servant ; it was held that lie might maintain an action for his daughter's seduction (a). And where the defendant hired the plaintiff's daughter as his servant, with a view to obtain possession of her person in order to seduce her, it was held that such a hiring would not defeat an action brought by her father, as it was merely a colorable hiring (i). Again, if a girl be seduced whilst out in service, and return to her father's house in a state of pregnancy, and he sujiport {q) Harper v. Lvffkin, 7 B. & C. 387. (r) Chamberlain v. HazJewood, 5 M. & W. 515; S. C. 7 Dowl. 816. (s) Ditcham v. Bond, 2 M. & S. 436. (0 See Grinnell v. Wells, 7 M. & G. 1033 ; S. C. 2 D. & L. 610, where judfrment was ar- rested for want of it. («) But a binding contract of service is not necessary, Harper v. Lufflcin, 7 B. & C. 387. (x) Harris v. Builer. 2 M. & W. 539 ; Tliompson v. Ross, Exc. M. T. 1859; Law Times, 1 N. S. 43. But see Speight v. Oli- veira, 2 Stark. 493, itifra, note {b), and the American cases of Bartley v. Rlchtmyer, 4 Comst. 38; Dain v. Wycoff, 3 Seld. 191. {y) Dean v. Peel, 5 East, 46 ; Blaymire v. Haley, 6 M. & W. 55. {z) Per Parke, B., in Blayviire v. Haley, uhi supra. (a) Mann v. Barrett, 6 Esp. 32. {h) Speight x.Oltveira, 2 Stark. 493; Griffiths \. Teetgen, 15C. B. 344 ; S. C. 24 L. J., C. P. 35. See R. v. Delaval, 3 Burr. 1434, where a criminal information was granted for frauduk-iitly assign- ing a female apprentice for the purpose of prostitution. And see the American cases, stipra, note (a). OP THE ACTION FOR SEDUCTION. 101 her during and after her confinement, he cannot maintain any daughter action for the seduction, as he did not thereby lose her services, f^?"!'"^'} ^' she being in the service of another (c). And so, iftliejuiy find if seduced that the child of which the plaintiff's daugliter was delivered whilst in was not the defendant's, although he Avas proved to have had ^^'^^"^'^• connexion with her, the plaintifi' can sustain no action against ri'f''^(f''\\- the defendant, as he has sustained no loss of service by the defendant's act(f/). And it has been questioned whether a Abandon- parent can maintain this action where the loss of service arose m^nt after from distress of mind consequent upon abandonment after seduc- tion, it being conceived that the damage was too remote (e). Vv^here this action is brought by a parent for the seduction of Loss of a daughter who resides with him, evidence of very sliglit acts of ^^'"''^^"^ • ,-\ 1 -11 • / N 1 • ,i\ 11 daughter service (/ ), such as milknig cows ( <;), making tea(rt), and the residing with like, has been held sufficient to prove the allegation of loss of parent, service. Nay, the courts are disposed to infer service from re- sidence with the parent, where there is a capacity to serve (i). Whether or not tlie same inference could be drawn in the case of one standing in loco parentis is not settled. The action for seduction cannot be brought in the countj'' court (A). It would seem, however, that a defendant might be held to bail if about to quit England (/). The daughter or servant may be a witness (m), but the plain- Evidence, tiff is not bound to call \\er{n). The omission to do so, however, would afford ground for such strong observations on the part of the defendant, that, in practice, it is usual to call her. She can, however, only be asked as to circumstances occurring before and immediately after her connexion with the defendant, to show that it was against her consent (o). And she is not bound to Cross-exami- answer, on cross-examination, whether before her acquaintance nation- with the defendant she had not been criminal with other men ( p). And where she has been cross-examined at length as to circum- stances of extreme indelicacy and great levity of conduct in (c) Davies v. Williams, 10 Q. (i) Maunder v. Venn, M. & M. B. 725. In Joseph v. Cavander, 323 ; Torrence v. Gihbins, 5 Q. B. Winton Summ. Ass. 1831' (cited 300; see Jones v. Brow7i,Veake, in Rose, on Ev. 467), the action 233; S. C. 1 Esp. 217 ; and per was held to lie, though the Lord VVensleydale, in Harris v. daughter had not actually been Butler, 2 M. & W. 539. confined before action brought, (k) 9& 10 Vict.c. 95, s. 58. and tlie phiintiff had voluntarily (l) See Bullock v. Jenkins, I turned her out of his house upon L. M. & P. (i45. That, however, discovering her pregnancy. was an action for crlm. con. {d) Eager V. Grimwood, 1 E.kc. (m) Cock v. Wortham, 2 Str. 61. 1054; S. C. Selw. N. P. 1114; (e) Boyle v, Brandon, 13 M. & and see Tullidge v. Wade, 3 Wils. W. 738. 18. (/) Mansell v. Thomson, 2 C. (w) Farmer v. Joseph, Holt, & P. 303 ; Hollowaij v. Mell, 7 451. C. &P. 528. (o) Coli/er v. Mayne, 2 Carr. ig) Bennett v. Alcott, 2 T. Pt. & K. 1011. 168. ( p) Dodd v. Norris, 3 Camp. (/() Carr v. Clarice, 2 Ch. Rep. 519. 260. 102 THE DUTIES OF THE SERVANT TO THE MASTER, ETC. Kviilcnce of general j^ooU character. Promise of niarriage. Evidence. submitting to the defendant's embraces, those circumstances must be explained, if capable of explanation, on re-examina- tion, for tlu; jilaintitf cannot, in answer, call witnesses to her ^'eneral character (7). Tliongh, in one case, where the cross- examination went to show that the plaintiff's daughter had conducted herself immodestly towards the defendant before her seduction, and that she kept improper company, witnesses were allowed to be called, on the part of the plaintiff, to prove the general good character and modest deportment of the daughter, and the general respectability of the family (r). The plaintiff cannot give evidence of the general good character of the pe.Tson seduced, except in answer to evidence of general bad character. And, therefore, where evidence is given of a specific breach of chastity, the plaiutifr" is restricted to disproving that specih'c act(.<;). Nor can evidence be admitted on tiie part of the ])laintifi' to show that the defendant accomplished the seduc- tion by means of a promise of marriage {t) ; at least not directly for the purpose of increasing damages, though such evidence may be given indirectly, and is frequently received for the pur- pose of vindicating the girl's character {ii). Declarations of the defendant's wife, tending to show that she aided and colluded with the defendant in seducing the plaintiff's daughter, have been admitted in evidence in aggravation of damages (.r). The defendant may plead that the person seduced was not the plaintiff's servant (?/), though it appears unnecessary to do so (z). It is, however, safer to add such a plea if it is intended to rely on that fact as a defence to the action. But the defendant cannot pay money into court {a). On the part of the defendant evidence may be given, in miti- gation of damages, not only of the general bad character of the person alleged to have been seduced, but also of particular acts of unchastity on her part(Z*). But he cannot call vvitnesses to prove that she has talked of another person than the defendant {q) Dodd V. Norris, ubi supra ; and see Bawfield v. Masseij, 1 Campb. 460. (»•) Bate v. Hill, 1 C. & P. 100. See the note at tlie end of the case, where it is said that the course adopted in that case is more conducive to the ends of justice, tlian that adopted in Dodd V. Norris. And see 1 Ph. on Ev. 468. («) Bamfield v. Massey, 1 Campb. 460. {t) Dodd V. Norris, 3 Campb. 519. (m) Per Garrow, B. (in Elliott V. Niclcliii, 5 Price, 647), who was counsel in Dodd v. Norris. And see Tullidge v. fP'ade, 3 Wils. 18 ; Capron v. Balmond, Exeter Spr. Ass. 1831 ; Rose. on Ev. 468. {x) Knowles v.Compigne, W int. Summ. Ass. 1835 ; Rose, on Ev. 44. (y) Torrenee v. Gibhins, 5 Q. B. 297; Davies v. IVilliams, 10 Q. B. 725. {z) Holloway v. Abell, 7 C. & P. 530 ; Eager v. Grimwood, 1 Exc. 61, (a) 3 & 4 Will. 4, c. 42, s. 21 ; 15 & 16 Vict. c. 76, s. 70. (b) Ferry v. Watkins, 7 C. & P. 308 ; and see R. v. Martin, 6 C. & P. 562; R. V. Robins, 2 M. & Rob. 512. But see per Erie, J., 16 Q. B. 178, who said he knew no instance of evidence of general bad character being ad- mitted in actions for seduction. OF THE ACTIOX FOR SEDUCTION. 103 as her seducer and the father of her child, unless she be first asked in cross-examination whether she ever used those expres- sions (c). Such evidence, however, might be admissible to show general misconduct and frequent use of loose language (d). The plaintiff may recover damages for the injury which his Damages. feelings have sustained in addition to the actual expense in- curred by loss of service and payment of doctor's bills (e). And, in one case, Lord Eldon told the jury that, in estimating the damage sustained by the plaintiff, they might look upon her as a parent losing the comfort as well as the service of her daughter, in whose virtue she could feel no consolation ; and as the parent of other children whose morals might be corrupted by her example (/■). But it would seem to be the better opinion that the plaintiff cannot aggravate the damages by proof of the wealth of the defendant (g). (c) Carpenter \. Wall, \\ A. & wood v. Ramsden, Selw. N. P. E. 803. In Andrews v. Askey, S 1127 (12th ed.). As to doctor's C. P. 7, Tindal, C. J., allowed bills, see Dixon v. Bell, 1 Stark. her to be recalled and re-ex- 287. amined on this point. (/) Bedford v. M'Kowl, 3 Esp. (d) Carpenter v. fVall, ubi 119. supra. (g) Jones v.Beddiitgton, 6 C Sc (e) Andrews v. Askey, 8 C. P. P. 589 ; see also Dai7i v. Wycoff, 7 i Chambers v. Irwin, Southern- 3 Seld. Rep. 191. ( 104 ) CHAPTER IV. THE DUTIES OF THE MASTER TO THE SERVANT, AND THE RIGHTS AND REMEDIES OF THE SERVANT TO ENFORCE THE PERFORMANCE OF THEM. PAGE Of the Master's diity to re- ceive the Servant into his Service, and retain him ; and the Servant's remedies for breach of such duties . 104 Remedies for Servant wrong- full 1/ discharged . . .108 Of the Master's duty to pay the Servant's wages, and the Servant's remedies to recover them. — Default ; Bankruptcy ; Death ; of Master. — Default ; Death ; of Servant 113 Of the Master's duty to sup- ply Food and Medicine to the Servant. — Statute 14 Sf 15 Vict. c. 11 .... 130 Of the Master's duty to in- demnify the Servant from the consequences of obeying his orders, and herein of the Master's liability for injuries to Servant . . .133 OF THE MASTER'S DUTY TO EECEIVE THE SER- VANT INTO HIS SERVICE, AND RETAIN HIM; AND THE SERVANT'S REMEDIES FOR BREACH OF SUCH DUTIES. It is obviously the duty of every man who has engaged another person as a servant, to receive such person into his service, and vant into his if he refuse to do so Avithout any good reason for his refusal, service. such person may maintain an action against him for that breach of contract (a). Thus, where the defendant agreed to take the plaintiff, who was a shepherd, into his service at certain wages for the then next lambing season, for five weeks next ensuing after the 28th February then next, but afterwards refused to allow him to enter into his service, the plaintiff recovered da- mages in an action brought for such breach of contract on the part of the defendant (i). To sustain this action, however, it would (c) Duty of master to receive ser- ^\ction for refusal. Clarke v. Allan. (a) Bracegirdle v. Heald, 1 B. & Aid. 722, ante, p. 22; Blogg v. Kent, 6 Bing. 614. Where there is only one copy of the contract of hiring, the court will compel the party in whose pos- session it is to produce it to the other party, ib. (b) Clarke v. Allatt, 4 C. B. 335. (c) Bracegirdle v. Heald, ubi supi-a. As to the requisites'of the contract, see ante, Chap. II. master's duty to rkceiye servant into his service. lOo of course be necessary to prove a legally-bindinsf contract of hiring and service. It is obvious that what would be a good reason for discharging a servant would bean equally good reason for refusing to receive hira into one's service, after having en- ^ , P n . ■, ■ • p Conspiracy gaged to do so. tSut it is no answer to an action tor not per- to depart " forming an agreement to employ the plaintiff, that he has from agree- entered into a conspiracy to depart from the agreement, unless ^^s^er" un- the conspiracy has been acted on (d). less acted on. And where a person has entered into a binding agreement to Action may take another into his service on a future day, but before tiiat be brou!,'ht day arrives, announces his intention not to do so, he is entitled for coni-"^ ^^ to be believed, and the servant may thereupon immediately hrmg mencement an action against him, and is not bound to wait till the day arrives "f service. to see if the master will chanoe his mind. In a case(e), there- Hochsierv. ,. . , . , , •'- K ■\ 1 • \ De la Tuur. tore, m which a gentleman in April engaged a courier to accom- pany him on a tour for three months on the continent of Europe, to commence on the 1st of June, but in May wrote to say he had changed his mind, and declined the courier's services, and the courier thereupon in May commenced an action against him, and afterwards, before the 1st of June, obtained another engagement, on equally good terms, but not commencing till 4th of July ; it was held that the courier was entitled to recover, although it was objected, and very powerfully contended, that the plaintiff" was bound to remain ready and willing to perform the contract till the day when the actual employment was to begin, and that there could be no breach of the contract before the 1st of June. And Lord Campbell, C. J., said : " The man who wrongfully renounces a contract into which he has deliberately entered, cannot justly complain if he is immediately sued for a compensa- tion in damages by the man whom he has injured ; 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 option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrongdoer. An argument against Damages, 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 daj' of trial." It is conceived, however, that in such case if the servant do If not not act upon the master's announced renunciation of the con- '"■""^ht tract, and before the day arrives for the commencement of the incapaci- service, becomes either by the act of God, vis major, or his own 'ated nia.ster misconduct or misfortune, incompetent or unable to perform his '"^^ rescind, part of it, the master would be at liberty to avail himself of (rf) Hemingway v. Hamillon, 4 (e) Hochster v. De la Tour, 2 M. & W. 115. See the plead- E. & B. 678; Avery y. Bowden, ings in Mercer v. Whall, 5 Q. B. 5 E. & B. 728. 447. 106 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. Duty of jiiastf r to letaiii ser- vant. Court of Chancery will not grant in- junction to compel master to retain ser- vant. Slacker v. Jirocluibaiik Johnson v. Shrewsbury, Sic. Hailway Company. those circumstances to rescind the contract, and could not after- wards be sued for a breach of it {f). It is also tlie duty of a master to retain the servant during the whole time that he lias contracted to do so ; and if lie dismiss the servant before tlie expiration of tbat period without lawful cause {g), the servant may maintain an action against him for such wrongful dismissal. Where a servant is dismissed by his master during the period of service agreed iijion, for alleged misconduct or other cause, the Court of Chancery will notinterfere by injunction {Ii) to restrain the master from so doing, but will leave the servant to his action at law. In a case (i), therefore, in whicii Lord Cranworth, V. C, granted an injunction to restrain a lucifer match manufacturer from discharging his manager, who was ajipointed under a WTJtten agreement. Lord Truro, L. C, on apjieal, dismissed the order, saying, '' He did not recollect any instance of any attempt on the part of a court of equity to compel the employer to re- tain the servant, agent or manager, and not to forbear to leave him to his remedy at law. Consider," added his lordship, "what the effect would be; how is it possible for an employer or an agent to go on in the intimate connexion which such a contract is calculated to create? They are to be on the same premises, acting in the management of tiiesame business, in this case, and if there is mutual dissatisfaction, well or ill-founded, it is perfectly clear that a management conducted under such cir- cumstances, must tend very much to the prejudice of the con- cern — in this case, I think, particularly." Similar reasons were given by Lord Justice Knight Bruce, in refusing an injunction to restrain a railway company from dis- charging a contractor (J). The nature of the service to be rendered in that case maj'^ (with- out entering into particulars) be described iu the words of the first half of the fifth section of the contract, viz., " that the snid contrac- tors will from time to time at all times during the term of this con- tract, run and work all the trains of the railway company, and pro- vide, for the purposes of this contract, a sufficient number of effi- cient foremen, mechanics, engine-drivers, firemen, cleaners, store- keepers and other persons, and the requisite coke and firewood, (/ ) See Acenj v. Bowden, 5 E. & B. 714; 6E. &B. 9i33; Rnd V. Iloskbis, 5 E. & B. 729 ; 6 E. & B. 953 ; see also Barwick v. Buba, -IQ L. J., C. P. 280 ; Crook- ewit v. Fletcher, 2(J L. J., Exc. 153 ; Roberts v. Brett, 28 L. J., C. P. 323. (g) See the preceding Chap- ter as to what causes will justify the dismissal of a servant. (/() Where the master is a trustee, however, as in the case of trustees of a school, the Court of Chancery will sometimes, on a fit case being made out, inter- fere. See Willis v. Child, 13 Beav. 117; 5. C. 20 L. J., N. S., Ch. C. 113, where Lord Lang- dale, M. R., granted an injunc- tion to restrain the trustees of a charity school from discharging the master ; and see Doe v. Willis, 5 Exc. 894. (i) Stacker v. Broclcelbank, 20 L. J.,Ch. Cas. 408. (j) Johnson v. The Shrewsbury mid Birmingham Ruilwaij Com- pany, 3 De G., M. & G. 914 ; S. C. 17 Jur. 1015. master's duty to receive servant into his service. 107 oil, tallow, &c. and other materials of the best quality." And Knight Bruce, L. J., said, " We are asked to compel one person to emploj^, against his will, another as his confidential servant, 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 ever lived, still, if the two do not agree, and good people do not always agree, enormous mischief maj-^ be done. A man may have one of the best domestic ser- vants, he may have a valet whose arrangement of clothes is faultless, a coaclunan whose driving is excellent, a cook whose performances are perfect, and yet he may not have confidence in him ; and while on the one hand all that the servant requires or wishes (and that reasonably enough) is money, you are on the other hand to destroy the comfort of a man's existence, for a period of years, by compelling him to have constantly about him, in a confidential situation, one to whom he objects. If that be so in private life, how important do these considerations become when connected with the performance of such duties — duties to society — as are incumbent upon the directors of a com- pany like this." Before proceeding to consider the remedies for a servant Where cou- wroiigfuUy discharged, it may here be observed, that where the t'^ctdeter- contract of hirnigis determinable by notice or payment of salary notice or (e. y. by a month's notice or payment of a month's salary), and payment of the master discharges the servant at a moment's notice, the ser- servant Tii- vant in such case being discharged rightfully, in accordance charged with the contract, the amount of salary agreed to be paid in ^^'^*?*^'* ^^" lieu of notice (e. g. a month's salary) becomes a debt due from n-om master; the master to tlie servant, and may be sued for as such, or set oflf by the servant in any action brought by the master against him to which a set-oft' can be pleaded. Where, therefore, a clerk to and subject a railway company (A), under an agreement for a salary of 140/. ° *^'"°"- a year, determinable by three months' notice, or payment of three months' salary, was summarily discharged by the com- pany, who sued him for money had and received to their use, it was held that he was entitled to set off" against their claim the amount of three months' salary which became due eo instanti that he was discharged. Maule, J., saying, " It is clear that where there is an agreement to pay a certain sum in a certain event, an action of debt will lie for the recovery of that sum, which becomes a debt as soon as the event happens ; and it is the proper subject of set-off." And an action to recover a smaller sum than 20Z. upon such a May be tried claim, may be tried before the sheriff; under 3 & 4 Will. 4, c. 42, before sheriff, s. 17 (Z); whilst, as we shall presently see, an action for wrongful discharge being a claim for unliquidated damages, cannot be tried before the sheriff" under that statute. {!:) East Anglian Railway (l) Ilatton v. Macready, 2 D. Company v. Lythgoe, 2 L. M. & P. & L. 5. 221 ; S. C. 10 C. B. 726. 108 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. Action for wrongful aischarge preferable. REMEDIES FOR SERVANT WRONGFULLY DISCHARGED. A servant wrongfully discliargod has the two following reme- dies o|)en to him at law, either of which he may pursue imme- diately on his discharge (?«) : — 1. He may treat the contract of hiring and service as con- itmiiiiq, and bring a special action against his master for breaking it by discharging him ; and this remedy he may pursue whether his wages are paid up to the period of his discharge or not ; or, 2. If his wages are not paid up to the time of his discharge, he may treat the contract of hiring and service as re- scinded, and sue his master on a quantum meruit for the services he has actually rendered (ji). The former of these, however, is the remedy more usually adopted, and it is the preferable one, as, in the latter case, the action is founded on an implied contract arising out of «e/?mZ services, and no such contract arises by implication of lam upon a simple dissolution of a sj)ecial contract of hiring and service (o) ; and though a jury are at liberty to imply such a contract from cir- cumstances (/>), and probably would in most cases do so, yet they are not bound to do so, and could only imply a contract to pay wages for the services actualhj rendered. And, therefore, in the latter form of action, a servant could only recover wages up to the time of his discharge. Whilst in the former case the action being founded on a contract, which the law would imply on the part of the master, to indemnify the servant against all such damages as he had sustained by reason of the master's breach of contract in discharging the servant, and not allowing him to perform Ids part of the contract ; the servant, if he re- (m) Pagani v. Gandolfi, 2 C.& P. 370 ; see 2 Smith's L. C. 20, note to Cutter v. Powell. It is there stated as the result of the authorities, that a servant wrong- fully discharged has his elec- tion of tliree remedies, viz., the two spoken of in the text, and also " he m;iy wait til! the termi- nation of the period for which he was hired, and may then, per- haps, sue for his whole wages in indebitatus assumpsit, relying on the doctrine of constructive ser- vice:" in snpportof wliich, Gan- dell v. Pimiigmj, 1 Stark. 198; S. C. 4 Campb. 375, and Collins V. Price, 5 Bing. ]32, are cited. But it is also added, "■vide tamen, the observations of the judges in Smith V. Hai/ward, 7 A. & E. 544. It is conceived, however, that this third course cannot be adopted, and that the cases which ap- pear to support it must now be considered to be overruled. See Fewings v. Tisdal, 1 Exc. 295 ; Elderton v. Emmens, 6 C. B. 160 ; 13 C. B. 508 ; Goodman v. Pococlc, 15 Q. B. 576 ; Beckham v. Drake, 2 Ho. Lords Cases, 606, where Erie, J., said " When a promise for continuing employment is broken by the master, it is the duty of the servant to use dili- gence to find another employ- ment." Seeder Cromptnn, J., in Elderton v. Emmens, 13 C. B. 508. (h) Lilley v. Elwin, 11 Q. B. 755 ; Planche v. Colburn, 8 Bing. 14 ; Archard v. Horner, 3 C. & P. 349. (o) Lamburn v. Cruden, 2 M. & G. 253. (/;) lb.; and see Thomas v. Williams, 1 A. & E. 685 ; and Planche v. Colburn, 5 C. & P. 61. REMEDIES FOR SERVANT WRONGEULLY DISCHARGED. 109 covered at all, would recover something beyond the amount of wages due at the period of his discharge {q). First. Of the action for wrongful dismissal (r). The right of First of the a servant, wrouijfiilly discharged, to maintain this action does ^^l'^'lf°l not depend on the question whether or not his wages are paid discharge, up to the period of his discharge. It is utterly irrespective of that. In this action the servant seeks compensation, not for services he has rendered previous to his discharge, hut for i lie injury he has sustained by such discharge in not being allowed to serve and enrn the wages agreed upon (s). In this form of action, indeed, the plaintiff cannot recover Howwages wages due (t) for the period during which he has actually sen^cebefore served. These washes must be recovered on the count for wages, discharge to which may be added to the count for wrongful dismissal. ^'^ recovered. Therefore, where (zi) in an action for wrongful dismissal, it fl'o'-«<')/ v. appeared that the deft'udant was chairman of a company by -^^'"■'"""• which the plaintiff Avas retained in the capacity of superin- tendent of works, " the salary to be at the rate of 150 guineas per annum, either party to have the option of terminating the engagement by giving one month's written notice," and that at the end of eighteen months the plaintiff was dismissed without notice, no wages having been paid him, and a month after dis- missal the plaintiff brought his action upon the agreement, stating, as the breach of it, that the defendant would not con- tinue the plaintiff in his employ till the expiration of such month's notice, but discharged him in the middle of a year, without notice, but the declaration did not contain the common count for wages ; it was held that the plaintiff could not, with- out that count (which he might have added), recover anything . more than a month's wages, the loss of them being the damage he had sustained by not having received the month's notice agreed u])on. The defendant having entered into a contract with the Lords Tai/inrx. of the Admiralty, to provide a steamer for exploring the Niger, ^''"'^■ wrote to the plHintiff, " I am willing to give you the command of the steamer destined for an exploring and trading voyage up the river Niger and its tributaries. Your pay to be at the rate of50Z. per month, commencing from 1st December, 1853, and a commission of 20 per cent, on the net proceeds of the produce you may bring down." Plaintiff replied, " In answer to your letter, offering me the command of the vessel to go out on a trading and exploring voyage to the river Niger and its tributa- ries, at a fixed pay of 50Z. per month, and 20 per cent, on the net proceeds of the goods obtained, 1 beg leave to say I accept the service and the terms you mention." The vessel went up the Niger as far as D., when plaintiff refused to proceed further, (g) See further as to damages, Drake, 2 Ho. Lords Cases, 606. post, ]i.l]2. (t) See Goodman v. Pocock, (r) As to the form of the de- post, that he may recover da- claration, see Lvsh v. Russell, 4 mages for service during a Exc. 637 ; S. C. 7 D. & L. 228. broken period. («) See Elderton v. Emmens, 6 (u) Hartley v. Ilarman, 11 A. C. B. 187 ; and Beckham v. & E. 798. 110 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. Where wages payable at stated pe- riods, and ac- tion brouglit for wrongful dischaige, wages for broken pe- riod of ser- vice must be included in the damages. To sustain this action servant must be ready and willing to serve ; but need not oiler ; and ubandoned the command : it was held tliat tliis was not an entire contract for the whole voyage, but one which gave a cause of action for each month's salary as each month accrued, which once vested was not divested by plaintiff's desertion or abandon- ment of his contract. And Pollock, C. K, said, " If this meaning is not given, tlie result would be, that had the plaintiff died, or the voyage failed at the last moment, nothing would be payable by the defendant, because, according to his contention, the pertbnnance of the entire work contracted for was a condi- tion precedent to the right to receive anything. This cannot have been intended" (x). But a servant, whose wages are payable at stated periods, as quarterly, and who is wrongfully discharged between those periods, as in the middle of a quarter, may, in this form of action, recover wages for the period of service which lias elapsed since the last periodical payment of his wages, in the shape of damages for his master's breach of the contract between them. And if he elect to bring this action for his wrongful discharge, and wages for the broken jieriod of service are not included in the damages recovered in it, he cannot afterwards recover them in an action for wages, as the action for wrongful discharge treats the contract of hiring and service as still in existence, while the action for wages earned in a broken quarter treats it as rescinded. And the servant cannot do both, that would be allowing him to blow both hot and cold ( y). In order to enable a servant to maintain this action, he must be ready and willing to continue in his master's service at the time he is discharged (z). Ready does not imply willing (a), but ready and willing implies disposition, capacity and ability (b), i. e. not physical ability (c), but freedom from any other incon- sistent engagement. For if the servant enter the service of another before his discharge, and is thereby disabled from serving his first master in the manner contracted for, he could not be said to be ready to serve him (d), and upon a traverse of that averment, his action would be defeated. But although it (x) Taylor v. Laird, 1 H. & N. 266. (»/) Goodman v. Pocock, 15 Q. B. 'o7G; S. C. 19 L. J., N. S., Q. B. 410. Therefore, if the de- claration contain a count for wages as v\ell as one for wrongful discharge, the plaintiflt' must be careful to take a verdict on one only of tliose counts, not on both ; see per Coleridge, J., ib. {z) See 2 Wins. Saund. 352, etseq., notes to Peters v. Opie. (a) Granger v. Dacre, 1 D. & L. 573; S. a 12 M. & W. 431. (b) De Medina v. Norman, 2 Dowl., N. S. 239 ; ^. C. 9 M. & W. 827; IValUs v. Warren, 4 Exc. 364; Griffith v. Selby, 9 Exc. 394. (c) A servant, who is ill, may nevertheless be ready and v\ til- ing to serve, and a traverse of readiness and willingness, though a good plea on demurrer, would not be proved by evidence of servant's illness. Cuckson v. Stones, 28 L. J., Q. B. 25, ante, p. 85. id) Spotswood v. Barrow, 1 Exc. 804 ; S. C. 5 D. & L. 373, where a plea that the plaintiff entered tiie service of another was held bad on special demur- rer, as being an argumentative traverse of his readiness to serve the defendant. REMEDIES FOR SERVANT "WRONGFULLY DISCHARGED. Ill is necessary that he should be ready and willing and able to erve his master in order to enable him to sue his master for a wrongt'ul discharge, it is not necessary that he should offer to do so(e), if he can prove his readiness, &c., in any other way. It is obvious, however, that an offer to discharge his duty is the best proof of his readiness to do it. And as readiness and should give willingness is a matter that is within his own mind only, the ""'"^e. master ought at least to have notice of it (/"). Where the contract of hiring is defeasible, and either by ex- Defeasible press agreement or by the custom of the trade, business or occu- !i""'»^'^V ^ •^.^ i-i-"^! 11 -ii • must not be pation to Avhich it relates may be determined by notice, care stated as an must be taken not to sue upon it as upon an absolute contract, absolute one. or the action may be defeated on a plea of the general issue {g). Where a declaration in an action for wrongful dismissal //nr< v. stated an absolute hiring for a year, the defendant was not ^<^'"'y- allowed to plead, together with pleas in bar of the action, a plea varying the contract by stating it to be determinable on three months' notice and detei'mined ; and payment into court {h). Where an action for wrongful discharge (the declaration in Where action which also contained counts for wa), in which a clerk, who had been hired for two years, was wrong- fully dismissed after about one quarter's service, and then brought his action for such wrongful dismissal, and thejurj' awarded him a sum equal to twelve months' salary, the Court of Common Pleas refused to interfere, not considering the damages excessive. Where no specific wages have been agreed upon, the measure ofdamages is obtained by considering what is the usual rate of wages for the employment contracted for, and what time would be lost before a similar employment could be obtained (17). In a case where (?•) the defendants, directors of a mining company in South America, agreed to employ the plaintiff as superintendent of mines for three years, at a salary increasing yearly, and the directors were at liberty to dissolve the agree- ment at an J' time on giving the plaintiff twelve months' notice, or paying him twelve months' salary in lieu of such notice, and a reasonable sum towards defraying his expenses to Englan •> /■111 1 an implied any express contract to pay tor them, whetner or not tuere was contract is a an implied contract to do so. question for In such cases the defendant may give such evidence as goes ^■i^''^- to show that the circumstances, from which the plaintiS' would ^^iftTnter" induce a jury to implj' a contract to pay wages, do not warrant enceof im- any such inference; as that the plaintift' cohabited with him, plied con- since that goes to show that the contract was not one of hiring and service, but of a different nature (/). Or the defendant may show that the plaintiff misconducted himself in such a manner as to rebut any inference of an implied contract to pay for his services (m). But unless such evidence shows that there were 7io implied contract at all, the plaintiff's misconduct should be specially pleaded. Both the plaintiff and defendant may also give evidence of the value of the services ren- dered (n). It sometimes happens that, by the terms of the agreement Where left to entered into, it is left to the em])loyer to determine whether or ^ec^de'^whe' not any remuneration should be paid for services rendered, and therany and what amount should be paid. In such cases, if it appear "^jiiat wages clearly to have been the intention of the parties that the em- p^jjj plover should decide whether or not he would make any remu- neration for the services rendered, no action can be maintained No action against him by the person employed, unless the employer has, taiijed ^^^^' after the performance of the work, expressly promised to pay something. Thus, where a person performed work for a committee under Taylor v. a resolution that any service to be rendered by him should at a ■^''<^"^■^''• certain time be " taken into consideration, and such remune- ration be made as should be deemed right," it was held, that (/<•) Lamhurn v. Cruden, 2 M. to an action for wages the de- & G. 253. fendant pleaded an agreement (0 Bradslinw v. Hayward, that the plaintiff should have Carr. & M. 591. none if he got drunk, &c. {m) Cooper v. Wliitehunse, 6 C. (n) Baillie v. Kell, 4 Bing. & P. 345 ; Speck v. Phillips, 5 M. N. C. 638 ; Bird v. M'Gatwg, 2 & W. 281. See Monkrrum v. Carr. & K. 707, ^o*', p. 117. Shepherd. son, 1 1 A. & E. 41 1 , where 116 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. Boherts v. Smith. Gratuity at end of year. Ex parte Metcaife. If remunera- tion intend- ed, but amount not settled, fair wages may l)e recovered, Peacock v. Peacock. no action would lie to recover remuneration for such work, as tlie person employed threw himself upon the mercy of the com- mittee who were to judge whetlier he should have anything, and if anything, then how much(o). So where (p) the phiintitf wrote to the defendant and agreed to accept the appointment of secretary to a joint stock company, at a yearly salary of 300/., " if the company be completely registered and put into operation ; if not, I shall be satisfied with any remuneration for my time and labour you may think me deserving of, and your means can afford." The defendant, in replying, said, " It is distinctly agreed and understood that if the conqiany 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 compen- sation for labour done, in tlie event of the company not being carried out." The company was never registered or carried out. And it was held that the plaintiff could not sue the defendant for compensation for services rendered towards regis- tering the company. And upon the same principles no action would lie for a gra- tuity promised at the end of the yearff/). And upon similar principles the Court of Queen's Bench have refused (?•) to grant a mandamus to a Local Board of Health to pay a reasonable remuneration to a person who pre- sided at the first election of the board, upon a suggestion that they had allowed only an inadequate sum ; the board having, under the Public Health Act(.s), a discretion as to what sum they think reasonable to allow, and the exercise of their discre- tion in this respect not being subject to review. But if it appears from the agreement to have been the inten- tion of the parties that the sew ant should be remunerated {t), but the amount of liis remuneration was not settled, he will be entitled to recover upon the quantum meruit the fair value of his services, and the defendant may of course show tliat they were not so valuable as the plaintiff would make out {u). Thus, where (.r) a law stationer said to his son on coming of age, "You shall have fifteen shillings a week till October; the books will then be made up, and you shall have a slun-e ; we need not talk of the share till October comes ; we shall settle it then," Lord Ellenborough held that the son was evidently (o) Taylor v. Brewer, 1 M. & S. 290 ; see Moffatt v. Dickson, 13 C. B. 575 ; Moffatt v. Laurie, 15 C. B. 583. {p) Roberts v. Smith, 28 L. J., Exc. 164. {q) See Parker v. Ihbetson, 27 L. J., C. P. 236, ante, p. 33. (r) Ex parte Metcalfe, 6 E. & B. 287. («) 11 & 12 Vict. c. G3,s. 30. {t) As is generally the case where professional men are em- ployed. In such cases, however, the onus lays upon the ]>laintiff to make out his case, if tlie em- ployer raise a doubt whether the services were not to be gratui- tous, Hin^estonv. Kelly, IS L. J., N. S., Exc. 360. See Moffatt v. Laurie, 15 C. B. 583. {ti) Baillie v. Kell, 4 Bing. N. C. {x) Peacock v. Peacock, 2 Campb. 45. SEHVANTS' WAGES. 117 entitled to a beneficial interest in the business, leaving the amount to be settled when the books should be balanced, and that the jury must consider what was a fair and just proportion for the father to give and the son to expect after what had passed between them. So where {y) A. agreed to enter into the service of B., and Bryant v. wrote to him a letter as follows : — " I liereby agree to enter your -f'^i'''*- service as weekly manager, commencing next Monday : and the amountof payment I am to receive I leave entirely to you." And A. served B. in that capacity for six weeks: it was held (Lord Wensleydale, dissentiente) that the contract implied that A. was to be paid something at all events for the services per- formed, and that the jury in an action on a quantum meruit might ascertain what B., acting bond fide, would or ought to have awarded. And where (c) a verbal agreement had been made on behalf -BJ'"'' v. of a board of guardians with the surgeon, to attend a number "'^^' of pauper children who had been attacked by Asiatic cholera, for which he was to receive u-hatever remu7ieration the board of guardians sliould allow as right a7id proper, and he attended them for several weeks, after which the board tendered him 50Z. as a remuneration : it was held by Maule, J., that he might maintain an action for what was right and proper, and left it to the jury to ascertain what the board, acting bond fide, ought to have awarded. Where the plaintiff had by letter agreed that his salary was Rav-'Ungsw to be paid only in the event of the success of the undertaking, """"«''• it was held that there was evidence to go to the jury that the plaintiff had a right to receive something for his services (a). If either of the above questions depend upon the certificate of if images de- a third person, the obtaining such certificate is in general a ufi^ate'of"" condition precedent to the riglit of the servant to maintain any third person, action, and if it is withheld by such third person even by fraud, ''*? obtaining '. ,, 1 *^ ■ • 1 1 1 "^ TT- itisaeondi- no action tor wages can be maintained by the servant. His tion piece- remedy is an action against the third person for withholding: the dent to right Joy o of action. (v) Bryant v. Flight, 5 M. & a guinea and 305. a-week; and W. 114 ; but see Roberts v. Smith, had also rendered other services, 28 L. J., Exc. 164, ante, p. 116. which continued up to the death (z) Bird V. M'Gaheg, 2 Carr. of the uncle. The question was, & K. 707. In this case evidence whether there was any consider- was admitted of the scientific ation for the note, and Jervis, skill of the plaintiff'. See Baxter C. J., said, " In order to make v. Gray, 3 31. & G. 771, where a future services a good considera- surgeon, who had attended a pa- tion for the giving of the note, tient in expectation of a legacy, we think it was incumhent on was allowed to maintain an ac- the plaintiff to show that there tion for his services against the was some contract for future ser- patient's executors, having been vices which might have been en- disappointed of his legacy. See forced by the giver of the note also Hulse v. Hulse, 17 C. B. 711, if the recipient omitted to per- which was an action on a pro- form it." missory note given by a niori- (a) Rawlhigs v. Chandler, 9 bund uncle to a nephew who had Exc. 687. been his clerk for many years at 118 THE DUTIES or THE MASTER TO THE SERVANT, ETC. Oirrii V. Boiven. Against whom action should he brought. Collector of poor rates. Minister ap- pointed by trustees. Cooper V. Wliilehmtse. Servant to partners. Hi'ckham v. K nil/ /it. Writer of article in newspaper. Projector and certificate (f>), as until lio lias spoken no right can arise, Avliicli can be cntbrceil oitlior at law or in equity. In a case (c) tbei-etbre, where the plaintiff' agreed to serve the defendant as apothecary's assistant for one year gratuitously, and after that to receive such salary as C. sliould think reasonable, and it appeared that no application had been made to C. to fix any salary, it was held that the plaintiff could not recover any salarj'. I3y the Truck Act (rl), which does not appl}' to domestic servants or servants in husbandry f^), the payment in certain trades of wages in goods, or otherwise than' in the current coin of the realm, is prohibited. The action for wages should of course be brought against the person by or for whom the plaintiff was hired. But it by no means necessarily follows that the person appointing to an office or situ- ation is liable to pay the salary, e. g., in the case of collector of poor rates, the guardians appoint, but are not liable to be sued for the collector's salarv, which is charged on the poor rate by 4&.5 Will. 4, c. 76, s.'4G(/). Where a dissenting minister was appointed to a chapel by part of the trustees, but received a notice discharging him and demanding possession of the chapel signed by all the trustees, upon which he sued them all for his salary, he was non- suited (g). But in the case of a servant engaged by one of seveial partners, all the partners would be liable if the contract was made in respect of the partnership (/i), although the con- tract was in writing (not being by deed), and signed by one only. However where one proprietor of a ncAvspaper contracted with a person to write articles for it, other proprietors, who were no parties to the contract, cannot be made liable to pay the salarv of such person by means of the statute 6 & 7 Will. 4, c. 76 (J)." And Avhere {h) the ])Wm{\^ himself was a promoter of a pro- {b) See Morgan v. Birnie, 9 Bing. 673 ; Milner v. Field, 5 Exc. 829, which were cases of building contracts where the ar- chitect's certificate had not been obtained. See also Grafton v. Eastern Counties Railwni/, 8 Exc. 699 ; Glenn v. Leith, l" C. L. R. 569 ; Scott v. Avery, 5 Ho. Lords Cas. 811; Scott v. Corporation of Liverpool, 28 L. J., Ch. 230; Munro v. Butt, 8 E. & B. 738. (e) Owen v. Bowen, 4 C. & P. 93. (rf) 1 & 2 Will. 4, c. 37. On the construction of this act, see Chatvner v. Cummings, 8 Q. B. 311 (which was upheld in Archer V. James, in Q. B., 1 Law Times, N. S. 26 ; Rih'!/ V. Warden, 2 Exc. 59; Sliarman v. Saunders, 13 C. B. 166 ; Ingram v. Barnes, 26 L. J., Q. B. 82. (e) Sect. 20. The trades to which it does apply are specified in sect. 19, post, Appendix. (/) Smart v. Guardians of West Ham Union, 10 Exc. 867. (g) Cooper v. Wliitehouse, 6 C. & P. 545. {h) Beckham V. Knight, 1 M. & G. 738 ; Drake v. Beckham, 9 M. & W. 79; 5. C. 11 M. & W. 315 ; 2 Ho. Lords Cas. 579, 623. (/) Holcroft v. Higgins, 2 C. B. 488. (k) Wilson v. FisconntCurzon, 15 M. & W. 532 ; see Holmes v. Hig- gins, 1 B. & C. 74; Milbtirn v. Codd, 7 B. & C. 419. A claim by one partner against his co- partner is the proper subject of a bill in equity. SERVAXTS' WAGES. 119 jected joint stock company, it was held that he could not sue secretary of a member of the provisional and managing committee for salary company, alleged to be due to him for services as the secretary to the ^yffJ'Jl^f' projected company. And Lord Wensleydale said : — "■ If it curzon. were a transaction among ordinary persons the evidence might be sufficient to make out a prima facie case against the persons who signed or sanctioned the employment of tlie party, that he was to be a paid secretary. But when we have the additional fact that he is himself one of the original promoters and projectors of the company, more evidence is necessary than in the case of a mere stranger: and the question is, whether he is not so im- plicated in the scheme that all the acts of the provisional committee are to be considered as his acts, and consequently that he is one of his own employers. The provisional committee are a delegated body, acting for others; and, priv/d facie, any contract they make is made on behalf of those who appointed them, and orders given by them are prima facie the orders of all the projectors, including the plaintiff. The plaintiff, there- fore, was bound to siive further evidence to show that the defendant meant to contract as a principal, independently of his acts as a provisional committeeman of the company. On the facts in evidence in tliis case no such intention appears." However, where an express agreement with the ])laintiff was Liccasv. entered into by a committee for obtaining a Turnpike Road Act ^^"'^''■ to do certain work, and the plaintiff afterwards became a sub- scriber, it was held that he was not thereby precluded fi-om re- covei-ing for work done under such express contract before he became a subscriber (/). Where three partners engaged the plaintiff by an agreement Dnihinx. in writing to serve them as foreman for a certain period, but ^''^''"'■ before that period had elapsed, one of the three retired, and the plaintiff continued to serve the other two, for some years, and they afterwards became bankrupt, whereupon the phiintiff was dismissed by their assignees : it was nevertheless held that he might still sue all the three partners upon the original agree- ment, which was not rescinded (m). Where the amount sought to he recovered for wages is under When to sue 50Z., the plaintiff may sue for them in the County Court (n), or {?q^°j^\"'^ if the cause of action arise in London, in the Sheriffs' Court (o), or Lord Mayor's Court (/?). Where the amount is under 20/., he must sue in the inferior courts, or he will lose his costs {q). And, in certain cases, wages of small amount due to workmen or proceed and labourers may be recovered by summary proceeding before J^eforejus- a magistrate (r). Where by his particulars of demand the plaintiff claimed Particulars (?) Lucas V. Beach, 1 M. & G. pauperis. Chinv v. JiiiUeii, 8 C. 417. B. 447 ; S. C. 7 D. & L. 297; 9 (m) Dobbin v. Foster, 1 C, i) 20 & 21 Vict. c. clvii. (r) See Chap. IX.posU {q) Although suing in forma 120 THK DUTIKS OF TIIK MASTER TO TIIK SERVANT, ETC. Set-off. Payment, presumption of. From course of business. Lapse of time. wages, it was held that he would not recover a claim for a per centage by way of commission on business introduced by him to tlie defendant (s). A master cannot set oflf", against a claim for wages, money paid bv him to his own iiiedical attendant, for attendance on a servant, unless tiiere was a special agreement between the master and servant that he should do so (;(). Nor can lie set off against a claim for wages due to a female servant under age, money advanced by him to her, to purchase a silk dress and other articles not necessary for a person inlier station in life (it), nor coach fare paid for the mother of such servant (x). Nor can he set off, even by way of equitable defence (?/), damages sustained by him tlirough the servant's negligence (z); but if it can be proved to have been part of the original contract that the servant should pay out of his wages the value of his master's goods lost through his negligence, that would be tanta- mount to an agi'eement that the wages should be paid only after deducting the value of the things so lost, Avhich would be a good defence under the general issue (a). It sometimes happens that wages which have actually been paid are again demanded in consequence of no receipt having been taken. In such cases, the courts will sometimes presume, from the lapse of time or other circumstances, that they have been paid, and the servant will not be allowed to recover in an action for them. Thus, in a case tried many years ago at Guildhall, which was an action by a workman at a sugar refiners, a witness proved that the plaintiff had worked there for more tlian two years. But Abbott, C. J., said that he should direct the jury to presume that men employed in that way were regularly paid every Saturday night, unless some evidence was given on the part of the plaintiff to satisfy the jury that the plaintiff' had, in point of fact, never been paid ; and as no such evidence was produced, the plaintiff" was nonsuited (b). And in an action for wages, as a menial servant, Gaselee, J., ruled tliat in the regular course, if a servant has left a consider- able time, the presumption is, that all the wages have been paid (c). BANKRUPTCY OF MASTER. The payment of wages due to clerks, servants, and workmen, in the event of their master's bankruptcy, is provided for by the (s) Law v: Thompson, 15 M. & W. 541 ; S. C. 4 D. & L. 54. {t) Sellen v. Norman, 4 C. & P. 80. (m) Hedgeley v. Holt, 4 C. & P. 104. {x) lb. (y) Stimson v. Hall, 1 H. & N. 831. (2) Le Loir v. Bristow, 4 Camp. 134. (a) Per Lord Ellenborough, ibid. ; and see per Lord Abinger in Cleworth v. Pickford, 7 M. & W. 320. (i) Note to 4 C. & P. 81 ; see also Lucas v. Novosilieski, 1 Esp. 296. (c) Sellen v. Norman, 4 C. & P. 80. In a note to this case the reporter says with truth, " It would often save persons great inconvenience and expense if, when they paid a servant's wages, tlicy took a regular re- cei])t." servant's wages on master's bankruptcy. 121 "Bankrupt Law Consolidation Act, 1849" {d), by sect. 168 of Avhich it is enacted, that wlien any banlirupt sliali have been court may indebted at the time of issuing the liat or filing the petition for "^der adjudication of bankruptcy to any servant or clerk (e) of such months' bankrupt, in respect of the wages or salary of such servant or wages or clerk, it shall be lawful for the court, upon proof thereof, to ifj^/^^ q" order so much as shall be so due, not exceeding three months' (_/") servants. wages or salary, and not exceeding 30Z., to be paid to such ser- vant or clerk out of the estate of such bankrupt: and such ser- vant or clerk shall be at liberty to prove for any sum exceeding such amount. This very humane and beneficial enactment appears to have been originally borrowed from the Scotch law(^). The first positive enactment on the subject contained in the English bankrupt law, was the 6 Geo. 4, c. 16, s. 48. Before the Practice pre- passing of that act, a practice prevailed of paying clerks Geo.'*4.''c. i6 and servants full six months' wages out of the bankrupt's s. 48. estate; and the operation of the act, which empowered the commissioners to order payment of so much as should be due, not exceeding six months' wages, was to legalize that practice (/«). The 6 Geo. 4, c. 16, however, (as well as the 5 &6 Vict. c. 12-2, which reduced the amount to three months' wages,) is now re- pealed, and the enactment above set forth is the one at present in force. But as the decisions upon 6 Geo. 4, c. 16, s. 48, are Decisions in many respects applicable to the present law, which, as it will ^"^'^[gl ^\l\ have been observed, only difl'ers from the previous acts in the amount which may be ordered to be paid, it will be convenient to set before the reader some of the more important and useful of those decisions. Under that act it was held that the bankruptcy of the mas- f.!'".?!''^ ^■ ter {i) did not operate to dissolve a contract of hiring, and that the master might, notwitlistanding his bankruptcy and certifi- nabieTo^pay cate, be liable to pay the servant his wages. Thus, in an action wages of ser- for wages (to which the defendant pleaded his bankruptcy and ^j'"'^ working certificate), where it appeared that the plaintiff, in October, mission. " 1826, entered as clerk into the service of the defendant, an auctioneer, at a salary of 601. per annum. The defendant (d) 12 & 13 Vict. c. 106. (g) See a learned note of the (e) As to labourers and work- reporters, Mont. & M. 101, citing men, vide post, p. 125. 2 Bell Comm. 164; and see Ex (/) By the Interpretation parte Crawfoot, Mont. & M. 275. Clause, sect. 276, the word There is a similar provision in " month" means calendar month. the Code Napoleon, Code Civil, The 5 & Vict. c. 122, ss. 28, 93, 1. 3, t. 18, art. 2101. was in similar terms. But the (h) See per Lord Denman in corresponding enactment in the Thomas v. Williams, 1 A. & E. old Bankrupt Act, 6 Geo. 4, c. 690. The assignees of a bank- 16, s. 48, whereby the commis- rupt, or insolvent, cannot let out sioners had j)ovver to order pay- for hire his personal services, ment of six months' wages to necessary for his maintenance, servants and clerks, was held to Williams v. Chambers, 10 Q. B. mean six lunar months, Ex parte 337. Humphreys, 1 Mont. & Bligh, (i) Thomas v. Williams, I A. & 413 ; 3 Deac. & Chit. 114. E. 685 ; S. C. S Nev. & M. 545. a 122 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. Service must be under a con- tract of hiring. became bankrupt, and a commission issued on the 10th of July, 1828. He had been imprisoned about a month before that time under an Exchequer process, at the suit of the Crown, and re- mained in prison a year after the commission had issued. From the commencement of the imprisonment till the issuing of the commission, andfor ten days after, the defendant's business was conducted by his brother. The plaintiff attended from October, 1826, as long as the brother conducted the business, but ceased to do so when the brother ceased to conduct the business, and when he ceased, 10/. wages were due pro rata ; it was left to the jury to say whether the contract had been dissolved after the issuing of the commission by mutual consent ; and they found that it had. In the following term a motion was made for a rule to enter a nonsuit, on the ground that the bank- ruptcy operated to dissolve the contract. But the rule was re- fused, and Lord Denman said, "That the 48th sect, of 6 Geo. 4, c. 16, made no alteration in the legal effect of the contract of hiring, and, consequently, that as the wages had not become due at the time of the commission, either by efflux of time or by a dissolution of the contract, the bankrupt certificate forms no defence to this action ;" and added, " that no inconvenience was likely to occur from his decision, as persons in the plaintiff's situation must be expected to avail themselves of the section above referred to." It will be observed, however, that in Thomas v. Williams, the plaintiff" continued to act as the defendant's clerk after the commission issued ; and, therefore, it was unnecessary to decide, and that case cannot be considered as an authority, that where a servant, whose wages are due periodically, ceases to act imme- diately on his master becoming bankrupt, the master will be liable, after he has obtained his certificate, to an action for wages for such period as may have elapsed between the last time when wages became due and the bankruptcy. In such case it is conceived that "the certificate would be a bar; since the bankruptcy, and the fact that the servant thereupon ceased to serve, would be evidence fi-om which might be inferred a dissolution of the contract of hiring by mutual consent, and an agreement that the servant should be paid pro rata for the broken period of service (^). It can only be on the ground that the contract of hiring is rescinded, that a servant, whose wages are due periodically, is entitled, on his master's bankruptcy, to be paid in full wages for a broken period of service — for the Act of Parliament only authorizes the payment of wages in full where the master shall have been indebted at the time of issuing the fiat— and unless the contract was rescinded, he was not in- debted. And it must be borne in mind, that this provision, which gives a preference to one class of creditors over another, must on that account be construed strictly {I), And in order to entitle a servant to the benefit of the above provision of the bankrupt law. Lord Eldon held, that his service must have been rendered under a contract of hiring. AnJ, therefore, where a son had lived with his father seven years as a (/l) See Lamhurii v. Cruden, 2 M. & G. 253. (Z) See Ex parte Hampson, 2 Mont. D. & D. 462. servant's wages on master's bankruptcy. 123 clerk, receiving only board and lodging, and there was no Ex parte actual contract for wages, — though the father swore it was ^'<'''^''- always his intention to pay him something for his services, and the assignees did not object, — yet Lord Eldon, though he lamented the hardness of the case, said, "that as there was in reality no contract for wages, he could make no order for the son to prove" {m). But it seems to have been considered, that there was no ^^hat con- general rule as to what hiring was sufficient to entitle a ser- tue'^statute.'" vant or clerk to the benetit of the act 6 Geo. 4, c. 16, s. 48(«). -^^ general However, weekly labourers and workmen, employed as exca- rule. vators, were considered not to come within the meaning of that weekly section (o). But it was not thought necessary that the service hiring not should be under a yearly hiring, though tliere must have been ^" cient. an engasrement of a more permanent nature than a weekly ^.^^'''^ „. i-'/^»ii^i 11 hiring not hiring (jo). And, thereiore, where an overlooker or manager necessary, of a cotton mill was engaged at 33s. per week, but subsequently a contract was entered into that he should be paid 104Z. per annum, to be paid in weekly sums, he was held to come within the act (5'). And a person engaged as traveller, at an annual salary, was also held within the act(r). And where a person entered into an agreement with his father, to serve him as clerk and foreman in consideration of two suits per annum and two guineas a week, he was held within the act (s). And it was also held, that the mate of a vessel, hired by the Mate of bankrupt, wiio was master and part owner, under a verbal vessel, agreement, was entitled to six months' wages {t). And a French teacher in a school at Brighton has been held French to be within 12 & 13 Vict. c. 106, s. 168, and entitled to a quarter's master, salary (m). The provision as to clerks is not limited to trade clerks, nor is Who are it necessary that the trading should have continued during the ''I'^rks. whole of the period for which wages are claimed {x). A trader borrowed 550^. under an agreement, by which the Ex parte lender was to become his clerk at a salary of 2-22Z. 10s. per ^"■^''^^• annum, the trader to produce his accounts and balance sheet to the lender, who was to collect debts and alone draw cheques. If the balance was in the trader's favour at any time, he might draw to the amount of it. On payment of the loan, or on pro- ceedings being taken to recover it, the agreement was to be at an end. The lender to have the option of beceming a partner. {m) Ex parte Glover, 1 Mont, post, p. 125. Dig. 16.5 ; see Deac. & DeG. on (p) Ex parte Colli/er, uhi supra. Bankr. vol. i. 261, 262. \q) Ibid. (n) Per Sir G. Rose, Ex parte (r) Ex parte Neal, Mont. &. M. CoUyer, 2 Mont. & A. 29 ; S. C. 194. 4 D. & C. 520. (s) Ex parte Humphreys, Mont. (o) Ex parte Crowfoot, Mont. & Bli. 413 ; S. C. 3 D. & C. 114. 270; Ex parte Skinner, Mont. & (/) Ex parte Homhorg, 2 Mont. Bli. 417 ; 5. C. 3 D. 8f C. 332, D. & D. 642. where a coach-guard and weekly {u) Ex parte Collinet, 1 Bank, servant at 21. per week was held & Ins. Rep. 82. not to be entitled to the benefit {x) Ex parte Gough, Mont. & of the act. See now sect. 169, B. 417. g2 124 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. Tlie trader became bankrupt, and it was held that the lender was a clerk, and entitled to tliree months' salary in full, under 1-2 & 13 Vict. c. lOG, s. 168; and, also, that his having been absent from business, owing to ill liealth, for the three months immediately preceding the bankruptcy, with the bankrupt's leave, did not take away this right (?/). Ex parte A. entered the service of B., as book-keeper and cashier, in Hicktn. 1844, and remained till December, 1848, without any agree- ment being made as to the amount of his salary, but he drew small sums from time to time. A. stated that in December, 1848, it was agreed between him and B. that his salary should be at the rate of 2-30Z. per annum from 1844, and that the reason why no arrangement was made before was, that B. was making experiments in a manufacture, fiom which he hoped to derive a large fortune, out of which A. expected to be paid. B. became bankrupt in February, 1849, and A. was allowed to prove for his salary (z). Clerk leaving In a case (a), in which it was decided that a clerk who left ri)onths be- ^^'^ banltTupf s service six months before the fat issued, on fore fiat, in account of his liaving assigned all liis property in trust for his ofact^o f^"'^^ creditors, thereby putting it out of his power to pay the clerk, bankruptcy, was entitled to six months' wages, under 6 Geo. 4, c. 16, the within the court pronounced no opinion whether servants voluntarily quitting the service of their masters did or did not come servant TO-° within section 48. The ground, however, on Avhich that luntarily Case was decided was, that although there was an interval of six quitting. nionths between the quitting of the service and the fiat, yet the servant quitted in consequence of his master having assigned all his estate and effects, and thereupon ceased to carry on his trade, which was an act of bankruptcy, whereby the servant lost his employment as well as his wages {b). Such a ser- But in another case (e), where it appeared that about twelve within°the months before the bankruptcy, the bankrupt compounded with act after he his creditors, and it was then agreed between the bankrupt and had allowed his clerk that he should quit the service of the bankrupt, and be declared." ^^^^ ^ year's wagcs, amounting to 2.50/., should remain as a debt instead of being included in the composition. And the clerk then quitted the service and obtained another similar situation, the bankrupt's sou succeeding him as clerk to the bankrupt, and the trade being carried on as usual for another year, when the bankruptcy took place. The clerk was not allowed six months' wages in full after he had allowed a first and final dividend to be declared. Workmen by And it was held that the workmen of a coachmaker, who witliin act"° Worked by the piece, and received a specified sum for each par- ticular job under separate and distinct contracts, and where there was no hiring for a specific time, were not servants within 6 Geo. 4, c. 16, s. 48 ((^). {y) Ex parte. Harris, 1 De G. (h) Ex parte Gee, Mont. & Ch. 165. 108. {z) Ex parte Hiclcin, 19 L. J., (e) Ibid. Bank. 8. (rf) Ex parte Grellier, Mont. & (a) Ex parte Saunders, 2Mont. M. 95. & A. 684. servant's wages on master's death. 125 ^ • It would seem, however, that if the misconduct of the clerk Semhie, that has been such as would have justified his dismissal without nnsconduct wages, he might be deprived of his right to be paid his wages in would de- full (e). pnve him And it is to be observed, that the payment of wages is not to ^ct'^"^*'' °^ be out of the^rs^ monies got in, but as soon as there is a suffi- ^^^ of what cient fund for the purpose after providing for the expense of monies wages working the fiat (/). t" ^e paid. And by 12 & 13 Vict. c. 106, s. 169 (<7), it is also enacted. Court may that when any bankrupt shall have been indebted at the time of "'^^'^'^ wages issuing the fiat, or filing the petition for adjudication of bank- mg 40^. to ruptcy, to any labourer or workman of such bankrupt in respect labourer or of the wages or labour of such labourer or workman, it shall be "*^°'^'^™^"- lawful for the court, upon proof thereof, to order so much as shall be so due, not exceeding 40s., to be paid to such labourer or workman out of the estate of such bankrupt ; and such labourer or workman shall be at liberty to prove for any sum exceeding such amount. Where coal proprietors employed colliers to whom work was Colliers' let off at so much per score baskets, and each collier had a drawers, drawer attached to him, it was held that as the drawers could not have maintained an action against the proprietors for their wages, they were not entitled to wages under this section (Jl). DEATH OF MASTER. By the death of the master the servant is discharged (i) ; and Discharges the sureties to a bond for the I'aithful service of the servant are '''^'^^'^"*- released!^ A). And it seems that where there is no custom upon Where con- the subject which can be imported into the contract, and the *''^'r* '^°'' ^" ''. , J- . ^ X' 5 • 1 entire year's service is under an entire cojitract lor a j'^ear s service and a service, ser- j'ear's pay, if the master dies in the middle of the year the ser- vant not vant is not legally entitled to any wages for a broken period of tiued to'^any service. wages. Thus, wliere (Z) debt was brought upon a writing, by which Countess of the defendant's testator had appointed the plaintiff's testator to ^^i""""'* v. receive his rents, and promised to pay him lOOZ. per annum for ton. ^ '" (e) Ex parte Hampson, 2 Mont. ground that the service to the D. & D. 4()2. executors was a continuance of (/) Ibid. the same service and not a new (g) See the corresponding en- contract. And see also Jackson actment in 5 & 6 Vict. c. 122, v. Bridge, 12 Mod. 6.50. A con- s. 29. tract of apprenticeship, in so far {h) Ex parte Ball, 3 De G., M. as it was a personal contract, is & G. 155. put an end to by the death of (i) Wentw. Off. Ex. 141, 14th the master, R. v. Peck, 1 Salk. edit.; Wms. Exors. 644. But see 66; Baxter v. Burfield, 2 Str. R. V. Ladock, Burr. S. C. 179 ; 2 1266; Bac. Abr. " Master and Bott. 277; 1 Nol. P. L. 461, Servant," G. where it was beld that a pauper (/c) Barker v. Parker, 1 T. R. gained a settlement by serving 287. out the year with the executors {I) Countess of Plymouth v. of the master, who died in the Throgmorton, 1 Salk. 65 ; see middle of the year ; on the Ehlertcn v. Emrnens, 6 C. B. 160. 126 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. Wliere there is a custom to that effect, servant entitled to wagts for actual ser- vice. So where contract not for an entire year. Query, whe- tiier wages entitled to preference over other debts. Legacies to servants. liis service, the plaintiff showed that the defendant's testator died three quarters of a year sifter, during which time he served liini, and he demand(;d 75/. for three quarters; after judgment for the plaintiff in tiie Common Pleas, the defendant brought a writ of error, and it was argued that without a full year's ser- vice nothing could be due, for that it was in nature of a condi- tion precedent, that it being one consideration and one debt, it could not be divided : and the Court of Queen's Bench were of that opinion, and reversed the judgment. Where, however, there is a custom applicable to persons in the situation in which the servant was, as tliere is with regard to domestic servants, who are generally considered entitled to wages for the time they serve, though they do not continue in the service during the whole year, the servant would probably be held entitled to recover wages for the period of actual service (m). And it is conceived that in all cases where the contract is not an entire contract for a whole year's service on one side, and a whole year's pay on the other, a servant, whose master dies in the middle of a year, might recover, in the com- mon action for Avages, his wages for the broken period of ser- vice, upon principles similar to those which allow a servant, ■wrongfully discharged, to treat the contract as rescinded, and sue for his wages for the period of actual service (w). The Apportionment Act, 4 & 5 Will. 4, c. 22, would not in general apply to cases of hiring and service (o). The executors or administrators of their master are the persons to whom servants must look for payment of their wages, after his decease. It is stated by some authorities (jo), that the wages of domestic servants and of labourers are entitled to preference over other debts of the deceased. But it is difficult to point out any legal ground on which such preference can be claimed in Eng- land (q), though they are entitled to priority in France (r). The subject of legacies to servants, showing how far such lega- cies operate to extinguish the servant's claim to wages, will be treated of hereafter in a separate Chapter («). (m) See Cutter v. Powell, post, p. 129. (w) Ante, p. 108. (o) Lowndes v. Earl of Stam- ford, 18 Q. B. 425. ( p) 2 Bl. Comm. 511, citing 1 Roll.' Abr. 927 ; and see Toller on Exors. 286. iq) 2Wms.Exors.822,note(«), 3rd edit. It may be here men- tioned as a caution to servants, that upon the death of their master the only persons entitled to deal with his personal property are his legal personal representa- tives, that is, his executors if he has left any ; or, if not, his ad- ministrators : and that in a case where a housekeeper, on her master's death, without leaving any executors, applied certain cash in the house, and the pro- duce of the sale of some of her master's property, to the pay- ment of the expenses of his funeral and other expenses, with- out any authority to do so ; she was afterwards held liable to an action at the suit of the widow and administratrix for the money so received and applied, Welch- man V. Siurgis, 13 Q. B.552. (r) Code Civ. liv. iii. tit. xviii. s. 1. 2101. (s) Seethe last Chapter in the Book. WAGES OF SERVANT RIGHTFULLY DISCHARGED. 127 Where a farm servant left his wages from time to time in his Wages left in master's hands, and it was agreed between them that the debt ["^^'er's . , 1 ,, . ° , , , !• 1 1 • 1 hands: in- thus due should carry mterest, and the master died, havmg by terest, his will given all his real and personal property to his wife, out of which he desired tliat she would discharge all liis legal debts, it was held, in a suit for the administration of his estate in Chancery, that the Statute of Limitations did not operate as a bar to arrears of interest upon the sum left by the servant in his master's hands (t). DEFAULT OF SERVANT. When a servant, whose wages are due periodically, refuses to Servant perform his part of the contract, and serve his master in the ?'^'^/"^ ^^' manner contracted tor, or so conducts nimseir that toe master is rifrhtfuiiy justified in discharging him without notice, he is not entitled to discharged be paid any wages tor that portion of time durins: which he has ^a^es! ° "° served since the last periodical payment of wages (m). That is to saj% if a servant whose wages are only due yearly abscond from his master, or is rightfully discharged before the expiration of the year, he could recover nothing for services rendered pre- vious to such departure or discharge. And the same principle would apply to the case of a quarterly, monthly or weekly hiring. In any of such cases, if the servant fail to perform his part of the contract, or be rightfully discharged at any inter- vening period between the days when his wages are due (.?), he can recover nothing for the broken period of service. This is upon the principle that the contract was an entire contract, and the performance of the service for the whole time agreed upon, was in the nature of a conAiUon precedeiit to the right to recover any wages. And it is a general rule(?/), applicable to all con- tracts, that, while a special contract remains unperformed, the party whose part is unperformed cannot sue in indebitatus assumpsit for compensation for what he has done under the contract until the whole is completed (z). Thus, in an action (a) for wages for work performed by the Jiuiiey. plaintiff, who was a seaman on board the defendant's ship ^e^g^tman. during a voyage from Altona to London, where it appeared that the service was under an agreement, by which the plaintiff agreed to serve from Altona to London and back again, and there was an express stipulation, by which the plaintiff was bound to demand no wages till the conclusion of the voyage, the plaintiff was nonsuited on the ground that the contract (<) Blower v. Blower, 28 L. J., Smith's L. C. 10, note to Cutter Ch. 18L v. Powell. (m) See Dalt. Just. ch. 58, p. {z) And he cannot sue the 129, where it is said, " If a ser- other party specially for non- vant of his own accord shall de- performance of the contract, un- part from his master before his less he has himself performed, or time expired, he shall lose all been ready to perform, his part his wages." of it : as has been already shown (i) bee the preceding Chapter w)iilst treating of the action for as to what cause will justify the wrongful dismissal, discharge of a servant. (a) HuUe v.Heiglitman, 2 East, (y) See cases cited in 2 145; and see 2 Smith's L. C. 11. 128 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. Spain V. Arnolt. Turner v. Robinson. Jtidgway v. Hunijerjord Market Com- pany. Lillet/ V. Eiwin. Servants en- listing as soldiers. remained unperformed and unrescinded, and the plaintiff should have sued the defendant upon the contract, and the nonsuit was held rii^ht by the Court of King's Bench. Upon i^iniilar ])nnciples, in a variety of cases, servants who have been rifihffully discharged, and have afterwards sued their late masters for wages, have failed to recover anything. Thus, in an action {b) brought by a yearly servant to a farmer, to recover wages for his service from Michaelmas to July, when he was discharged under circumstances which were held to justify his discharge, it was held that he could not recover anything. And Lord Ellenborough said, " If the contract be for a year's service, the year must be completed before the ser- vant is entitled to be paid.'' Lord Tenterden afterwards, on two occasions (e), expressed a similar opinion. And, upon the authority of these cases (rf), Lord Denman nonsuited a servant who, having been properly discharged (as was admitted), after- wards brought an action for wages during a broken period of service, and the nonsuit was held right by the Court of King's Bench (e). The principle on which these cases were decided, was afterwards {f) applied to the case of a clerk to a public company, whose salary had been j)aid quarterly, and who, having been discharged for improper conduct some little time after the quarter-day, Avas held not to be entitled to recover any- thing for the period which had elapsed since the last periodical payment of his salary. In his judgment, in that case, Lord Denman said, ^^ Turner v. Hohinson, and many other cases, have shown that if a party hired for a certain time, so conduct himself that he cannot give the consideration for his salary, he shall forfeit the current salary even for the time during which he has served." And in the case of Lilley v. Elwin (g), which was an action by a waggoner and servant in husbandry (who left his work and was afterwards summoned before a magistrate under the statute 4 Geo. 4, c. 34, s. 3, and by him discharged from the service,) against his master, it was held that he could not recover wages for the time of his actual service, as he was bound to give a whole year's service before earning any wages, and broke his contract by leaving the service before the year's end. By the Annual Mutiny Act (A), it is enacted, that no soldier, &c., shall be liable to be taken out of her Majesty's service for breach of any contract, &c., " or for having left or deserted his employer or master, or his contract work or labour, except in the case of an apprentice or indentured labourer," And by section 63, it is provided, "That it shall be lawful for the jus- tice, before whom any recruit shall be attested, before the expi- ration of the term of service for which he had been hired by his master, to adjudge to such recruit a reasonable proportion of (b) Spain v. Arnott, 2 Stark, 236 ; and see Robinson v. Hind- man, 3 Esp. 235. (c) Huttman v, Boulnois, 2 C. & P. 510; Atkin v. Acto7i, 4 C. & P. 208. (rf) In Turner v. Robinson, 6 C, & P, 15, (e) 5 B, & Ad, 789, (/) Ridgwaij v. Ilungerford Market Compamj, 3 A, & E, 171. (g) 11 Q. B. 742. {h) 22 Vict. c. 4,s, 52. servant's wages — DEATH OP SERVANT. 129 his wages for the time he has actually served : and the said justice shall make an order for the payment of the amount so awarded, and, in case of neglect or refusal to pay tlie same within four days, shall issue his warrant for levying the same by distress and sale of the goods and chattels of the master." There is a similar provision in the Annual Marine Mutiny Sailors. Act(j), A master, therefore, whose servant leaves him and goes into the army or navy, must pay him his wages up to the day of his leaving his service. DEATH OF SERVANT. Where the death of the servant prevents his performing his wages. part of the contract, and completing the period of service agreed upon, his representatives can recover nothing for the broken period of service, unless there exist a custom in the particular occupation in which the servant was engaged, to support the claim to wages for such service, as is the case with regard to domestic servants, or the master of a ship who is not a seaman within the rule of the common law, that freight is the mother of wages ik). '1 hus where P., being at Jamaica, subscribed and delivered cuUer v. to C. the following note : — " Ten days after the ship Governor Powell. Parry, myself master, arrives at Liverpool, I promise to pay to Mr. T. Cutter the sum of thirty guineas, provided he proceeds, continues and does his duty as second mate in the said ship from hence to the port of Liverpool." C. went on board and did his duty from 31st July to 20tli September, when he died before the ship reached Liverpool. His representative brought an ac- tion for his wages for the period during which he had served, but it was held that, C. not having completed the voyage, his representative could not recover any wages. And Ashhurst, J., said : — " Here the intestate was by the terms of his contract to perform a given duty before he could call upon the defendant to pay him anything ; it was a condition precedent, without performing which the defendant is not liable. And that seems to me to conclude the question; the intestate did not perform the contract on his part ; he was not indeed to blame for not doing it ; but still as this was a condition precedent, and he did not perform it, his representative is not entitled to recover." And Lawrence, J., added : — " With regard to the common case of an hired servant, to which this has been compared, such a servant, though hired in a general way, is considered to be hired with reference to the general understanding upon the (i) 22 Vict. c. 5, s. 67. thecaseofHollingi'jorthv.Palme7-, (Ic) Hawkins v. Twizell, 5 E. & 4 Exc. 267, where a similar ques- B. 883. That rule is altered tion arose, but it became neces- now, and seamen's wages are not sary to decide it. The seaman, dependent on the earning ot" or his representative, under si- freight, 17 & 18 Vict. c. 104, milar circumstances now would s. 183. recover wages, 17 & 18 Vict. c. (0 Cutter V. Potvell, 6 T. R. 104, ss. 184, 185, &c. 320 ; 2 Smith's L. C. 1 ; see also G 5 130 THE DUTIKS OF THE MASTER TO THE SERVANT, ETC. subject that the servant shall be entitled to his wages for the time he serves, though he do not continue in the service during tlie whole year. So, if the plaintitf in this case could have proved any usage tliat persons in the situation of this mate are entitled to wages in proportion to the time they served, the plaintitf niiglit have recovered according to that usage. But if this is to depend altogetiier u])on the terms of the contract itself, she cannot recover anything" (m). Food. Formerly omission to supply food was merely breach of contract. Except in case of ser- vant of tender years. J?. V ders. Shanes' case. 14 & 15 Vict, c. 11. Persons re- fii.sinir or neglecting to OF THE MASTER'S DUTY TO SUPPLY FOOD AND MEDICINE TO THE SERVANT.— Stat. 14 & 15 Vict. c. 11. The duty of a master or mistress to supply food and other necessaries to their servants, arises solely from a contract either express or implied on their part to do so. And the omission to perform this duty was formerly merely a breach of contract, for which they were civilly, but not criminally, liable, except in the case of a servant of tender years (i?). But at a meeringof all the judges (except Lord Kenj^on and Rooke, J.), held 25th February, 1802, the general opinion was, that it was an indictable offence as a misdemeanor to refuse or neglect to provide sufficient food, bedding, &c., to any infant of' tender years unable to provide for and take care of i7.';<'//' (whether such infant were child, apprentice or servant), whom a man was obliged by duty or contract to provide for, so as thereby to injure its health (o). A married woman, however, cannot be convicted of a misde- meanor in neglecting to supply even an infant servant with proper food, unless it be shown that her husband supplied her with food to give the child, and she wilfully neglected to give it. The omission to provide food is the omission of the husband, the wife being in the nature of a servant to the husband {p). In the case of the Sloanes, who were indicted in February, 1851, upon a charge of starving and otherwise ill-treating their servant girl, who was sixteen years old, the learned judges (7) who ti-ied the case considering that she was not of tender years, that part of the charge was abandoned (r). In consequence of the great scandal caused by the Sloanes' case, the statute 14 & 15 Vict. c. 11 was passed. By sect. 1 of that statute, it is enacted, " That where the master or mistress of any person shall be legally liable to provide for such person (?«) In Bray v. Finch, 26 L. J., Exc. 91, which was an action by the administrator of a person who had been many years ser- vant to the keeper of a private lunatic asylum, and left his wages in his master's bands, the court refused an order for tlie production of defendant's books, under sect. 50 of the Common Law Procedure Act, ISSl. (?i) B. V. Bidley, 2 Camp, 650. (0) See Friend's Case, Russ. & Ry. C. C. 22. (p) R. V. Saunders, 7 C. & P. 277. {q) Coleridge and Cresswell, 33. (r) The defendants pleaded guilty to the charge of assault- ing, &c., the servant, and were punished for that. master's duty to supply food, etc. to servant. 131 as an apprentice, or as a servant, necessary food, clothing, or supply ne- lodging, and shall wilfully and without lawful excuse, refuse or to^appjen° neglect to provide the same, or where the master or mistress of tices or ser- any such person shall unlawfully and maliciously assault such ^''j*^'(-°n person, whereby the life of such person shall be endangered, or assaulting the health of such person shall have been or shall be likely to them, guilty be permanently injured, such master or mistress shall be guilty ^ea^'r"^'^*^' of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding three years." And by sect. 2, the costs of prosecution in any such case may Costs of pro- be allowed by the court before which the indictment shall be ^^'^^ '""■ tried, to be paid by the treasurer of the county, as in cases under 7 Geo. 4, c. 64 (s). A master is legally bound to provide medical attendance for Medicine. an apprentice (^), but not for a servant, in case of illness or J^^*^" '^ "°*^ .,■',. " ''' -^ • 1 1 <. • • / \ / 1 bound to pro- accident (?<)• -Lord Kenyon, indeed, was oi opinion (j:), (and vide medical it was said bj' Lord Alvanley ( y), that he had reason to believe attendance that that was not a ha^ty opinion, but formed upon reflection,) •"'senants. that a master was obliged to provide for his servant in sickness and in health ; and that he, therefore, was liable for medicines furnished to his servant while in his service. Not that his ser- A^ant was at liberty to go abroad and contract debts for medi- cines, but that whilst he was under his master^s roof the master was under a legal as well as a moral obligation to pro- vide the necessary medicines, and to pay for such as were ad- ministered to his servant under such circumstances. And Lord Eldon (c) seemed disposed to follow Lord Kenyon's opinion. But subsequent decisions have laid down a different doctrine, and it may now be considered as established law that a master is not bound to provide medical advice for his servants, and that it makes no difference whether or not the servant be living under his master's roof. The first formal decisions upon this Wennaii v. point was made in the case of Wennall v. Adney{a), which was ^'^"■^'J- an action by a surgeon to recover the amount of his bill for medi- cal attendance upon a servant of the defendant, who had his arm broken while driving the defendant's team, and who had been hired by the defendant at the yearly wages of 3Z. 10s. (s) The act also provides in («) Scarman v. Castell, 1 Esp. the subsequent sections for the 270. keepingof a register and peri odi- {y) In Wennall v, Adney, 3 B. cal visitation, by the guardians & P. 252. or overseers, of all young per- («) Simmons v. Wilmoit, 3 Esp. sons hired or apprenticed from 93. any workhouse or union. See (a) 3 B. & P. 247. Lord the act printed at length in the Mansfield had indeed at Nisi Appendix. Prius held that a master was not {t) R. v. Smith, 8 C. & P. 153. legally bound to repay the parish (u) Tlie case of seamen on for the cure of his servant, A^ewfty board a ship is peculiar, and is v. JVillskire, 2 Esp. 739 ; S. C. 4 provided for by statute 17 & 18 Doug. 284. But the case in the Vict. c. 104, s. 234. See Couch text is the first decision in banc. v. Steel, 3 E. &; B. 402. upon the subject. 132 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. and victuals. TIio (Icfendiint liad made no express promise to pay the plaintifi' and it was lield that there was no implied promise on his part to do so ; and therefore the plaintiti' was nonsuited, and the nonsuit was afterwards held rio^iit by the Court of Common Pleas. In giving judgment, Lord Alvanley, C. J., after stating liis concurrence with the learned Judge who tried the case, in thinking the defendant not liable, said that, "previous to the case of Scarman v. Castell, there is no autho- rity in the law of England to be found which warrants the position contended for on the part of the plaintiff. I have no Parish liable, doubt whatever that parish officers are bound to assist where such accidents as these take place : and that the law will so far raise an implied contract against them as to enable any person who affords that immediate assistance which the necessity of the case usually requires to recover against them the amount of money expended." And Heath, J., observed : " I believe that the humanity of Lord Kenyon misled him when he adopted the doctrine upon which he decided the case of Scar- man V. Castell. Probably, at the moment, it occurred to him that if the master was not bound to provide medical assistance for his servant, the latter Avould be left wholly destitute: but I am perfectly sure it is more for the advantage of servants that the legal claim for such assistance should be against the parish officers rather than against their masters, for the situation of many masters who are obliged to keep servants is not such as to enable them to afford sufficient assistance in cases of serious illness." And Rooke, J., added, " It must be left to the humanity of every master to decide whether he will assist his servant according to his capacity or not." Master may Since the case of Wennall v. Adney, it has never, it is be- "'^if'^bi'^b li^ved, been seriously contended that any legal liiibility exists his conduct!' on the part of the master to supply medical assistance for his servants, but in the few cases which have happened at Nisi Prius it has usually been contended, on the part of the plaintiff, that the master has by his conduct rendered himself liable, either by calling in his own usual medical attendant, or by re- cognising the employment of the medical man called in by the Cooper x. servant. Therefore (^), in an action for the amount of a sur- PhiUips, geon's bill, which contained a charge of 7s. (5d. for attending a servant of the defendant named Read, who had hurt her ancle in getting over a gate ; and also a charge of 121. for attending one Parry, who had acted as wet-nurse to two of the defendant's children ; the defendant was held not liable to pay the former charge, as the plaintiff was not the regular medical attendant of the family, and had been employed by Read without the knowledge of her master or mistress. But the hitter charge the defendant was held liable to pay : as it appeared that Parry's illness arose from suckling the defendant's youngest child, and his wife knew of the plaintiff's attendance but did not express any disapprobation of it; although it also appeai'ed that the defendant did not know the plaintiff, and had sent the surgeon (6) Cooper v. Phillips, 4 C. & man, 4 C. & P. 80. P. 581 : and see Sellen v. Nor- master's duty to indemnify servant. 133 •who regularly attended his family to see Parrj', and had also sent her 10s. to pay for medicines. Mr. Justice Taunton, con- sidering that his doing so showed that he considered himself liable to take care of her in that illness, and that it must be taken that the wife had the general superintendence of the house. It is believed, however, that no case has yet occurred in Query, whe- ■which the question has arisen in an action bv a servant against ^^l!^ J"^^*'^'^ 1- 111 11 •! yino has con- his master, who had agreed to supply the servant with necessary tracted to food, whether the master in such case is bound by his contract supply neces- to furnish physic to the servant in case of illness. But when HaWe'tosup- the question shall arise, the decision of it must depend upon the ply medicine exact nature of the contract entered into. Sometimes a master i!^, '^^^'^ °^ , 1 . . , . 1 1 . Illness, engages to supply his servant with necessary victuals, and it may be argued that necessary victuals mean such victuals as may suit the state of health or infirmity in which tlie servant happens to be ; as if a servant be in need of wine or victuals of that description which are given by way of medicine (c). In the event of illness or accident, however, happening to a Parish liable, pauper, the parish in which it takes place is bound to provide the necessary medical advice and assistance (rf). And an over- seer neglecting to provide medical assistance when required to a pauper labouring under dangerous illness is indictable, although such pauper is not in the parish workhouse, nor had previously to his illness received or stood in need of parish relief (e). OF THE MASTER'S DUTY TO INDEMNIFY THE SERVANT FROM THE CONSEQUENCES OF OBEYING HIS ORDERS, AND HEREIN OF THE MASTER'S LIABILITY FOR INJURIES TO SER- VANT. It is also the duty of a master to indemnifj"^ his servant froin When master the consequences of doing, in obedience to his master's orders, pliable to any act pursuant to orders which he was bound to obey ; or servantVrom any other act which was either lawful in itself, or which, not.conse- (c) See per Lord Alvanley in moved to the place of his settle- Wennall v. JdneT/, 3 B. & P. 247. ment during his illness, R. v. {d) Wennall v. Adney, 3 B. & Bury St. Edmunds, 10 East, 25 ; P. 247; Simmons v. Wilmot, 3 R. \. Ludlow, 4 B. & Aid. C60; Esp. 91 ; and see Wailing v. Tomlinson v. Bentall, 5 B. & C. Walters, 1 C. & P. 132, as to 738 ; Paynter v. Williams, 1 C. & deputy overseer's liability. And M. 810. But where a servant, the parish cannot recover the having met with an accident, expenses from the master, A^ewi?/ was carried to the nearest house, V. Wiltsldre, 2 Esp. 739; S. C. 4 which was in the next parish, Dougl. 284 ; nor from the parish that parish was held liable, Lamb where the pauper was settled, v. i?«?jce, 4M. & S. 275, untilan Atkins v. Banwell, 2 East, 505; order of removal made, R. v. Gent v. Tompkins, 5 B. & C. 740, Oldland, 4 A. & E. 929. note; nor may a pauper, who (e) R.v. Warren, Iluss. & R. has met with an accident, be re- C. C. 48, n. 134 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. quences of being in itself unlawful, might have been either lawful or un- obeying his ]awful, but wliich the servant was induced by tlie conduct of his master to believe to be lawful, as the rule tliat one wrong- doer cannot sue another for contribution (/) would not apply in such cases (g). Thus, if a servant, in obedience to the command of his mas- ter, commit a trespass upon the property of another, not knowing that he is doing any injury, he is nevertheless answerable for the tort as well as his master to the party injured, yet he is entitled tn an action against his master for the damages he may suffer, although the master also was ignorant that the act committed was unlawful, because he is deemed the principal offender. In respect to offences in which is involved any moral delin- quency or turpitude, all parties are deemed equally guilty, and courts will not inquire into their relative guilt. But where the offence is meiely malum prohibitum, and is in no respect im- moral, it is not against the policy of the law to inquire into the relative delinquency of the parties and to administer justice between them, although both parties are wrongdoers (A). When not. But it is Conceived that a master is not bound to indemnify his servant from the consequences of an act which is 7nalum in se, or which the servant knew to be unlawful, altliough done by him in obedience to his master's orders, as the servant was not bound to obey his master's orders in such case ; and the Notifser- master is only bound to indemnify an innoc«z^ agent. And a tnuy^o' '^°°" i^aster is not bound to indemnity his servant from damage orders. arising in consequence of his acting contrary to his master's orders : as if a servant entrusted to sell, and expressly ordered not to warrant, does warrant, and suffers damage in conse- quence (i). Nor for in- And inasmuch as a servant, when he engages to serve a ordfiiary dis- ^f^stt^J') inipliedly undertakes as between himself and his master charge of to run all the ordinary risks of the service (including the risk servant's Qf negligence on the part of a fellow-servant when lie is acting in the discharge of his duty as servant of him who is the com- mon master of both) the master is not in general bound to indemnify him against the consequences of injuries sustained in the ordinary discharge of the duties for which he was hired ; (/) Merryweather v. Nixon, 8 his employer, Britain v. Lloyd, T. R. 186. 14 M. & W. 762; Bayliffe v. {g) Southern v. How, Bridg- Butterivorth, 1 Exc. 425 ; Bayley man's Rep. 126; S. C. Cro. v. JF27/«n.9, 7 C B. 886 ; Westrop Jac. 468 ; Adamson v. Jarvis, 4 v. Solomons. 8 C. B. 345 ; Lewis Bing. 66 ; Belts v. Gibhins, 2 A. v. Campbell, ib. 541. As to costs & E. 57 ; Topiis v. Grane, 5 Bing. see Garrard v. Cottrell, 10 Q. B. N. C. 650 ; Collins v. Evans, 5 Q. 679. B. 830 ; Rawlings v. Bell, 1 C. (A) See Lowell v. Boston and B. 951 ; Smith's Merc. Law, 115; Lowell Railroad Corporation, 23 Story on Agency, s.33'J. And see Pick. 33. also the following cases, in which {i) See per Houghton, J., in the question has been whether Southern v. Hoiv, Cro. Jac. 471 ; an action for money paid would see Grylls v. Davies, 2 B. & Ad. lie by a person employed against 516. master's duty to indemnify the servant, etc. 135 that is, at least, if the master provide competent fellow-servants, and tackle and machinery reasonably proper and adapted to the work in hand. This principle has, during tlie last twenty years, and especially since the first edition of this work was published, been discussed and applied in a great number of cases in England, Scotland, Ireland and America ; and as it is one of considerable importance and extensive application, it will be desirable to state some of these cases at greater length than would otherwise have been thought necessary. For although the general principle is settled, and may now be con- sidered to be substantially the same in all the countries just mentioned (k), the application of it to the circumstances of particular cases will probably yet give rise to considerable liti- gation and dispute. And as we shall shortly see, the question who are fellow-workmen, or collaborateurs, as it is sometimes expressed, is still unsettled. The first case in which the question arose, was Priestley v. Priestley v. Fowler {I). The plaintiff in that case was a servant of the ■'^''"''*'^" defendant in his trade of a butcher, and the defendant desired him to go with certain goods of the defendant, in a van belong- ing to the defendant, and conducted by another servant. The plaintiff accordingly went, but the van, being overloaded, broke down, and the plaintiff, who was riding on it, was thrown oflf and his thigh broken. It did not appear whether the defendant knew of the defects in, or overloading of, the van ; the court, therefore, was not called upon in that case {m) to decide how far such knowledge on his part of a defect, unknown to the servant, would make him liable. But, under the circumstances, he was held not liable, Lord Abinger, C. B., saying, "If the master be liable to the servant in this action, the principle of that liabi- lity will be found to carry us to an alarming extent. He who is responsible by his general duty, or by the terms of his con- tract, for all the consequences of negligence in a matter in which he is the principal, is responsible for the negligence of all his inferior agents. If the owner of the carriage is therefore re- sponsible for the sufficiency of his carriage to his servant, he is responsible for the negligence of his coachmaker, or his harness- maker, or his coachman. The footman, therefore, who rides behind the carriage, may have an action against his master for a defect in the carnage, owing to the negligence of the coach- maker, or for a defect in the harness, arising from the negli- gence of the harness-maker, or for drunkenness, neglect or want of skill in the coachman ; nor is there any reason why the principle should not, if applicable in this class of cases, extend {k) There was supposed to be B. 326. Upon similar princi- a difference in the law upon this pies it has been held that a guest, subject in Scotland, prior to who was injured in going through Bcrtonshill Company v. Reid, in a glass door, could not maintain Dotn. Proc. post, p. 143. an action against his host, South- (l) 3 M. & W. 1 ; see IVinter- cote v. Stanley, 25 L. J., Exc. bottom v. Wright, 10 M. & W. 339; S. C. 1 11. & N. 247. 109 ; Brown v. Mallett, 5 C. B. (m) See cases infra on this 599, 616; Seymour v. Maddox, point. 20 L. J., Q. B. 327 ; S. C. 16 Q. 136 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. Farwell v. The Boston and Wor- cester Rail- road Cor- poration. to many others. Tlie master, for example, would be liable to the stTvant for the negligence of the chambermaid, for putting him into a dan)p bed ; for that of the upholsterer for sending in a crazy bedstead, whereby he was made to ftll down while asleep and injure himself; for the negligence of the cook in not properly cleaning the copper vessels used in the kitchen ; of the butcher in supplying the family with meat of a quality injurious to the health ; of the builder for a defect in the foundation of the house, whereby it fell and injured both the master and the ser- vant by the ruins. The inconvenience, not to say the absurdity, of these consequences, afford a sufficient argument against the application of this principle to the present case. But, in truth, the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. He is no doubt bound to provide for the safety of his servant, ia the course of his employment, to the best of his judgment, in- formation and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably appi-ehends injury to himself; and in most of the cases in which danger may be in- curred, if not in all, he is just as likely to be acquainted with the probability and extent of it as the master. In that sort of employment, especially which is described in the declaration in this case, the plaintiff must have known, as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely. In fact, to allow this sort of action to prevail, Avould be an encouragement to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are n much better security against any injury the servant may sustain by the negligence of others engaged under the same master, than any recourse against the master for damages could possibly afford. We are, therefore, of opinion that the judgment ought to be arrested." The next case occurred in America {n). Two persons were employed by the defendants in their business, the one as an engineer to manage the engines and cars on the road, the other to manage the switches on the railway. The latter, although {n) Farwell v. The Boston and Worcester Railroad Corporation, 4 Mete. Rep. 49 ; see Story on Ag. 453 e, note 1. The judgment is also printed in 3 M'Q. 31(i. This case has been frequently acted upon in America. See Brown v. Maxwell, 6 Hill's Rep. 592 (1844); Coon v. Syracuse and Utica Railroad Compani/, (j Bar- bour's Rep. 231 (1849); Hayes V. Western Railroad Corporation, 3 Cush. Rep. 270; Jlbro v. Asawam Canal Company, 6 Cush. Rep. 75 (1850); King v. Boston and Worcester Railroad Corpora- tion, 9 Cush. Rep. 112 (1851); Gillshannon v. Stony Brook Rail- road Corporation, 10 Cush. Rep. 228(1852). See also the Scotch case of M'Naughton v. The Cale- donian Railwai/ Company, 19 Sec. Ser. 271 ; 3 M'Q. 311 ; also re- ported 28 Law T. 376 ; 21 Sec. Ser. 160. master's duty to indemnify the servant, etc. 137 Le was properly selected by the company as a person of due skill and reasonable diligence, negligently put or left a switch across the railway, whereby the engine and cars were thrown off the line, and the engineer was severely injured. He brought an action for the injury sustained against the company, but it was held, upon full argument, that the action was not main- tainable, but should have been brought against the wrongdoer himself (o). Sliaw, C. J., in delivering judgment, went into an elaborate examination of the whole subject, and among other authorities cited, with approval, the case of Priestley v. Fowler. The next case in England was Hutchinson v. The York, Newcastle and Bericich Railway Company {j}). The nature oi Hutchinson the case sufficiently appears from the judgment of Alderson, B., 'j^ewcastiT''' who said, " The question is whether the defendants are liable and Berwick for the injury occasioned to one of their own servants by a ^^'i'"""J collision while he was travelling in one of their carriages in dis- '"^ "^' charge of his duty as their servant ; in respect of which injury they would undoubtedly have been liable if the party injured had been a stranger travelling as a passenger for hire. We think that they are not. This case appears to us to be undis- tinguishable in principle from that of Priestley v. Foioler." His lordship then proceeded to state that case ; to explain the principle upon which a master is in general liable for accidents resulting from the negligence or unskilfulness of his servant, and to show that a servant could not recover against his master for injury sustained in consequence of his own unskilfulness or negligence. He then continued — " The difficulty is as to the principle applicable to the case of several servants employed by the same master, and an injury resulting to one of them from the negligence of another. In such a case, however, we are of opinion that the master is not in general responsible. Put the case of a master employing A. and B., two of his servants, to drive his cattle to market; it is admitted if, by the unskilfulness of A., a stranger is injured, the master is responsible ; not so if A., by his unskilfulness, hurts himself; he cannot treat that as the want of skill of his master (§'). Suppose, then, that by the unskilfulness of A., B. the other servant is injured while they are jointly engaged in the same service ; there, we think, B. has no claim against the master ; they have both engaged in a com- (o) But it has since been held concurrent opinion of Judges in America that the fellow-ser- of both countries, unbiassed by vant is not responsible to the each other. See also M'Eniry v. sufferer under such circum- Waterford and Kilkenny Railway stances, Alhro v.Jaqui/h, 4 Gray, Company, 8 Ir. C. L. R. 312. 99, post, p. 152. Pollock, C. B., (. liailway Companif, 28 Law Times, {q) Gillshannon v. St onij Brook 376 ; 21 Sec. Ser. ICO. Railroad Corporation, 10 Cush. (o) Hayes v. The Western Rail- 228 (1852). road Corporation^ 3 Cush. 270. H 146 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. Master not liable if he employ com- petent ser- vants. Tarrant v. Webb. Nor for in- juries to servant in use of instru- ments with the nature of which he is acquainted. Hyneii v. Leach. Kor where injury caused hy default of servant. gravel train, and the plaintiff was injured : it was held that the plaintiff could not sue the defendants, although it was con- tended that he and those through whose negligence tlie accident occurred were not engaged in any common enterprize. The court, however, thought otherwise, and that it made no differ- ence whether the transport to and fro was part of the contract of service or merely a permissive privilege. Again, a master cannot be held impliedly to warrant to one servant the competency of his fellow-servants. If he does his best to get competent servants that is all he is bound to do. This was decided in the following case(7'). The defendant was employed to decorate the Carlton club- house. In order to paint the entrance hall a scaffolding was erected, upon which plaintiff and others were at work. One of the upper poles broke, and the plaintiff fell and was injured. The scaffolding was erected by M., who was employed for that purpose by the defendant, who did not interfere, except that when M. told him the painters said it wanted an additional up- right to make it secure, the defendant said that if M. hearkened to the painters he would have nothing else to do. The accident was mainly attributable to the want of that upright, though some ascribed it to an accumulation of boards put on the scaf- folding by the workmen themselves. It was held that the defendant would not be liable if the jury should be of opinion that he used every possible care to employ a competent person to erect the scaffolding, and Jervis, C. J., said : — " The master may be responsible where he is personally guilty of negligence, but certainly not where he does his best to get competent persons. Pie is not bound to warrant their competency." Where an injury happens to a servant while in the actual use of an instrument, engine or machine, of the nature of which he is as much aware as his master, and the use of which is the proximate cause of the injury, he cannot recover against his master for such injury, unless the injury arose through the per- sonal negligence of the master. And it is no evidence of such personal negligence of the master that he has in use in his works an engine or machine less safe than some other which is in general use. Where, therefoi-e, a sugar-refiner's labourer was killed through the fall of sugar-moulds which he was rais- ing by machinery, to which he attached it by means of a clip which slipped off, it was held that his administratrix could not maintain an action, under Lord Campbell's Act, against his master, although it appeared that another and safer mode of raising the moulds was usual and had been left off by defendant (.s). And of course a master would not be liable where the injury was caused to the servant by his own negligence. As where a miner engaged in an operation called " stooping" (or cutting away portions of pillars or stoops of coal left in original working (r) Tarrant v. Wehh, 18 C. B. 797; S. C 2.5 L. J., C. P. 261. According to Skipp v. Tlie Eastern Counties Rallwai) Compmiy, 9 Exc. 223, 'post, p. 149, the mas- ter is the proper judge of the number of s;erv;uUs requisite for any particular vv-ork. \s) Dynen v. Leach, 26 L. J., Exc. 221. master's duty to indemnify the servant, etc. 147 to support roof), neglected to use the usual props to secure the roof as he worked, and the roof fell on him (t), or a workman in a coalpit was injured by his own haste or carelessness in descending a ladder, which was not proved to be defective (u). In such cases as the servant's own negligence materially contributed to his injury, he could have no claim on the master (a,-). Nor is the master liable where the act of a third person is tlie Nor -where proximate cause of the injury. The plaintitl' was a labourer !^';t°V'."/A; 1 11 1 11' 11 1 1 I'll* /■ pcrsuii pruAi- employecl by the deiendant to do work at the buiJdmg or a mate cause house in a street at Liverpool, and there had been a hoarding of injurj'. put up to protect the building from persons and carriages passing, ^i^^p v. The plaintiff had complained that the hoarding was too narrow, '^ **' and he httd not room to pass with a hod of mortar between it and a crab and cradle that had been erected there. M'hile he was working a vehicle was coming up the street where there was plenty of room and struck the hoarding, in consequence of which he got injured. He then brought an action against his employer, but was nonsuited, as after he had complained he had continued working there voluntarily with full knowledge, and the part which the master had in the injury was too re- mote (//). But if tlje master personally interfere he may be liable. jraster liable The plaintiff was a bricklayer in the service of the defendants, if he per- who were builders, and one day, in consequence of the breaking jnt^^ig'^g of a putlog, the plaintiff fell from a scaffolding and broke his leg. ^^j^,^;^ y The defendants had employed a labourer to erect the scaffold, smiih. who had complained that some of the poles were rotten, and had broken them and laid them aside. Smith (the defendant) came uj) and asked who broke them, and told the labourer they Avould do very well, as there were no bricks or mortar to be put upon them. The labourer used such as he thought sound, and three where one would have done, but one broke ; hence the injury. It was held by the Exchequer Chamber (z) that there was evidence to go to the jury of the personal inter- ference and negligence of the master, in which case he was liable, and a new trial was granted. And where a master employs his servants in a work of danger. Master he is bound to exercise due care in order to have his tackle and iJave ma° machinery in a safe and proper condition, so as to protect them chinery in against unnecessary risks (a). °'^^^^- (0 Cook V. Bell, 20 Sec. Ser. («) Roberts v. Smith, 2 H. $c (Scotch Rep.) 137. N. 213; 5. C. 26 L. J., Exc. 319; (m) O'Neill v. Wilson, 20 Sec. and see per Pollock, C. B., in Ser. 427. rose v. The Lancashire and York- {x) See Senior v. Ward, 28 L. shire Railway Company, 27 L. J., L., Q. B. 139, 7)&.v<; and see also Exc. 251. See also Griffiths v. Butterfield v. Forrester, Bridge Gidlow, 27 L. J., Exc. 405 ; V. Grand Junction Railway Com- Cook v. Duncan, 20 Sec. Ser. paiiy, and cases of that sort, (Scotch Rep.) 180; Ormond v. post. Holland, 1 E. B. & E. 102. (y) Alsop V. Yates, 27 L. J., {a) Per Lord Cranworth, in Exc. 15(i; S. C. nom. Assop v. Bartoushill Coal Company \. Reid, Yates, 2 II. & N. 768. 3 M'Q. 288. h2 148 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. WoikinRn in stone quarry injured through defective system. Defective crab. Defect in construction of railway break. Miner killed by fall of stone. Miner killed coining up out of mine. Srydon v. Stewart. Upon this principle a woiknian employed in a stone quarry who was injured in blasting, because, owing to a defective system, he could not get out of the way quickly enough to avoid injuries when an exjdosion took place, was held entitled to recover damages against his master (Z>). So where an accident occurred in consequence of a rope giving way which had been used to fasten one of the spokes or arms of a crab (c). So where a workman (employed by a railway contractor), whose duty it was to uncouple the waggons, on stepping on to the break for that purpose it slipped down with him, in conse- quence of there being no block on it, which it was the duty of the contractor to have seen attached, and the workman was injured, the master was held liable as the machinery was in- sufficient (rf). So also the master was held liable where a workman was killed by the fall of a large stone while he was at work under- ground, if in the opinion of a jury his death was occasioned by the unsafe state of the roof of the mine, and the negligence or unskilt'ulness of the owners in having so left it when the workmen were sent to work there. But he would not have been liable if the ccindition of the mine was known to the workman, so that his death, which arose from working under it, was the consequence of his own rashness, and not of any neglect of the owner (e). So where miners employed at piecework in working coal while in the pit, intowhicli they had been let down in the usual manner, remonstrated with the underground agent as to the state of the mine, complaining, among other things, that air was not adequately admitted, and also that their wages were not sufficient, and on his refusing redress they declined to work any longer, and desired to be drawn up again. The agent acceded to this, and one of the men in the course of the ascent was thrown over and killed. The jury found that the death arose from the pit not being in a safe and sufficient state. It was held by the House of Lords that the men had a right to leave their work if they thought tit, and that their employers were bound to take all reasonable measures for the purpose of having the shaft in a proper condition, so that the men might be brought up safely, and not having done so were liable for the conse- quences (/"). (6) Sword V. Cameron, 1 Sec. Ser. (Scotch Rep.) 493. See this and the two following cases stated and commented on by Lord Cranworth, in Bartonshill Coal Company v. Reid, 3 M'Q. 289. See the .\merican case of Stone v. Cheshire Railroad Cor- poration, 19 New Hampsh. Rep. 427. (c) Dixon V. Rankin, 14 Sec. Ser. 420. (d) Gray v. Brasiey, 15 Sec. Ser. 135. (e) Patersonv. Wallace, 1 M'Q. 748. (/) Brydonv. Sleivart, 2 M'Q. 30. See the Barlovshill Coal Company v. Reid, 3 M'Q. 296, ante, p. 143, where the accident arose from negligence of fellow- workmen, and the master was held not liable ; and Griffiths v. Gid- low, 27 L. J., Exc. 405 ; S. C. 3 H. & N. 648, ante, p. 143, where the master did provide proper apparatus, and was held not liable. master's duty to indemnify the servant, etc. 149 Upon similar principles the defendant would have been held liable in Senior v. Ward{g) had not the deceased's own negli- gence disentitled the plaintitT, his representative, to recover. And if a master order a servant to use machinery, tackle or Master liable implements, which he (the master) knows, and the servant yj^erin'ser- does not know to be unsound or unsafe, in that case the master vant to use would of course be liable to indemnify the servant, from the unsafe consequence of using such insecure apparatus. Thus, where a ^'^. .'^" declaration alleged that the defendant was possessed of a ladder ^ciough'"''' unsafe and unht for use by any person carrying corn up the same, and the plaintiff was the defendant's servant, yet the de- fendant zre// knowing the premises, wrongfully and deceitfully ordered the plaintiff to carry corn up tlie ladder, and the plain- tiff, in obedience to the order, and believing the ladder to be proper, and not knowing the contrary, did carry corn up for the defendant, but by reason of its being unsafe and unfit, fell from it and was injured; it was held, on demurrer, to be suificient, without an averment that the plaintiff had no notice that the ladder was unsafe {h). Where the cause of injury or mischief is equally known, and But not palpable to the person employed as to the master, the servant ^^^l^^ could not then complain of an accident, for it might be said equally that he went to the work with his eyes open, and he could not known to be said to have been put to work on a matter of which he was and'servant. ignorant that there was risk involved. Thus, where thep^^^j^, defendant was building a house, and employed no architect. Pinnket. The plaintiff was the house carpenter, and the defendant chose some flags which were to be set by another person as a landing place, under the plaintiff's direction as to the slope of the land- ing. The plaintiff and the other person went on the landing when partially set; it broke, and the plaintiff was injured, but the defendant was held not liable (i). So, Avhere(A) it was the duty of the plaintiff, a servant to a Servant railway company, to attach the carriages of the luggage trains bo"nd to , -' . - i^' , , . " 1 ,1 °° •' 1 complain or to the engine. Une day be was thrown under tlie carriages and refuse to severely injured. There was evidence that the company's staff work if ma- was not sufficient for the performance of this work, but the staff*in»um- plaintitf had been employed in this particular service lor several cient. months prior to the accident, and had not made any complaint skippw on the subject to the company : it was held, that the company Eastern were not liable, volenti non Jit injuria. It was also said by ^a'umiy Lord Wensleydale, that it was not a question for the jury whe- Company. ther the number of servants employed by the company was (g) 28 L. .J., Q. B. 139, post, tiea Railway Company, 9 Exc. p. 150; see also Caswe// v. JFor^/^, 223. In America it has been 5 E. & B. 849. held that tlie servant was bound {h) iVilliams v. Clough, 27 L. to give notice of detects, Keegan J., Exc. 325 ; 5. C. 3 H. & N. v. The Western Railroad Com- 258; and see Potts v. Blanket, paw?/, 4 Seld. 175 (1853) ; M'Mil- 33 Law T. lll,;5er Lefroy, C. J. Ian v. Saratoga and Washington (i) Potts V. Plunket, in Ire- Railroad Company, 20 Barbour's land, 33 Law T. 111. Rep. 450 (1855). (A-) Skipp v. The Eastern Coun- 150 THE DUTIES OP THE MASTER TO THE SERVANT, ETC. sufficient for the jierformance of tlie work. The company are tlieniselves the proper judges of the number they require for carrying on the business of the line. Tiie plaintiff, it was said, brought the accident upon himself, for if he found that he could not do the work which was set him, he ought to have declined in the first instance, whereas he carried it on for several months and never complained. Master liable Where, however, a master employs boj^s and girls, or inex- dV'eK d^*^** perienced workmen, and directs them to act under the super- youns ser- intendence and to obey the orders of a deputy, whom lie puts in vant to obey his place, it may be they are not within the meaning of the rule superior cmploj'cd in a common work. They are acting in obedience to servant. the express commands of their employers, and if he, by the o'Bijrnex. Carelessness of his deputy, exposes them to improper risks, it Burn. jjiay be that he is liable for the consequences. A girl, only nine days in defendant's employ in a clay mill, was unaware of the risks from machinery. A., acting under the defendant as ma- nager of the works, put her to remove some waste clay, while the rollers were in motion. A. ought to have done this himself; and it ought not to have been done at all till the movement of the rollers was suspended. The little girl, in attempting to remove the waste clay in obedience to A.'s order, sustained a severe injury from the rollers ; for which she brought an action against the master, and he was held liable {I). For breach of Where the legislature has by statute imposed upon the master statutory ^ duty for the protection of the servant, the servant may main- tain an action against his master for any breach of statutory regulations, whereby he has sustained particular injury. And neither the imposition of penalties by the statute for the benefit of the injured person, nor the provision that such penalties are only to be sued for with the sanction of the Secretary of State, take away the right of the party injured to sue for damages in person. Of this nature are actions against millowners under the Factory Acts for not properly fencing machinery, whereby But not then workpeople get injured {m). But even in such cases the master ll.^frf^o'i is not liable if the servant by his own negligence or wilful mis- dent. conduct, (e.g., by setting the machinery m motion,) cause the accident, or could have avoided the injury by the exercise of ordinary care (n). Breach of Upon this ground the defendant was held not liable in the rules*'^^ case of Senior v. Ward{o), in which the facts were these : — After the passing of the Act for the Inspection of Coal-mines ( p), special rules were framed and duly approved of for the regulation (0 O'Bt/rne v. Burn, 16 Sec. Caswell v. Worth, 5 E. & B. 849 ; Ser. (Scotch Rep.) 1025. See Doel v. Sheppard, 5 E. & B. 856; the commentary on this case in Schofield v. Schunck, 5 E. & B. The Bartonshill Coal Company v. 858, note. Reid, 3 M'Q. 294. See also (w) Caswell v. Worth, ubi Hardie v. Addie, 20 Sec. Ser. supra. 553. (o) 28 L. J., Q. B. 139. (ffj) Such as Coe v. Piatt, 6 {p) 18 & 19 Vict. c. 108. Exc. 752; 7 Exc. 460, 923; jmaster's duty to indemnify the servant, etc. 151 of the defendant's colliery, and by one of these rules it was pro- Senior v. vided, that every morning, before the miners were let down the '^«'■'■'• shaft into the mine, the cage, by which they were to descend, should be let down and pulled up again, heavily loaded, to test the sufficiency of the rope and of the tackling. But the de- fendant, who superintended the working of his colliery, instead of enforcing this rule allowed it to be entirely neglected, and to his knowledge it had been entirely neglected by his workmen for many weeks before the accident happened, which caused the death of the deceased. The night before the accident, the rope. Master by which the cage was suspended, being then in good condi- might be tion, was injured by an accidental fire in the colliery. Next ^^ '^' morning the deceased and other miners were let down the shaft without any testing of the rope and the tackling. If that test- ing had taken place, the insufficiency of the rope would have Jbeen discovered, and the men would all have been saved. But the rope broke, and the deceased, with several others, was killed on the spot. There was most culpable negligence on the part of the defendant in neglecting the rule and in keeping in his employment a banksman who he knew habitually disre- garded it. Looking to these facts only, although the banks- man was the fellow-servant of the deceased, and both the deceased and he were employed by the defendant in the col- liery as fellow-labourers, Lord Campbell said, " He should have held the defendant liable, his negligence having materially contributed to the death of the deceased. But according to the if servant report of the learned judge who tried the cause, it was further free from in evidence, that gross negligence was to be imputed to the ^™®* deceased himself, and that this negligence materially contri- buted to his death. With the exercise of ordinary prudence he would have escaped the danger, and his life would have been saved. He knew the rule for testing the rope and tackling every morning, and he knew that this rule was habitually vio- lated ; further, on the morning of the accident he and the other miners were told by the banksman, that they had better ex- amine the ropes before they went down. Nevertheless thej'' disregarded this warning, immediately getting into the cage, the rope broke as it descended, and they were killed." A master, moreover, is not liable to a servant for injuries Master not sustained in the performance of orders which he was not boiind liable if to obey ; e. g., a servant is not bound to risk his life or limb boum"t "°' in obedience to his master's orders, and if he do so, he (the obey, servant) must take the consequences, his master is not liable for them. Similar principles would, it is conceived, apply to any case in which a servant sustained injury in the discharge of duties for which he was not hired, or in acting in obedience to orders which he was not bound to obey. If, for instance, a female ser- vant (say a lady's-maid) were ordered to stand outside an upper window and clean it, or to hold a horse, and sustained injury, it is conceived that neither she nor her representative, in case of her death, could maintain any action against her master for such injury. 152 THE DUTIES OF THE MASTER TO THE SERVANT, ETC. One servant not liable to another for accident in course of common employment. Jthrn V. Jaqitilh. It has been said by Pollock, C. B. (q), tliough it is believed that no actual decision upon the subject has yet occurred in England, tliat the rule laid down in Priestley v. Fowler (r) applies to all the members of a domestic establishment, so that the master is not in {general liable to a servant for injury resulting from the negligence of a fellow-servant, neither can one servant maintain an action against another for negligence whilst engaged in their common employment. When the case shall arise in England, the following decision in America is), upon the subject, will be of use. An action of tort was brought against the superintendent of the cotton and woollen mill of the Agawam Canal Company, to recover damages for injuries sustained by tlie plaintiff while in the employment of the company, from the escape of gas occasioned by the negligence, carelessness and unskilfulness of the defendant in the management of the apparatus and fixtures used in thct mill for the purpose of generating, containing, conducting and burning inflammable gas for the lighting of the mill. The defendant demurred, and it was held that the action could not be sustained, on the ground that the defendant was only respon- sible to his employer for negligence, &c., in the discharge of his duty. In the course of his judgment, Merrick, J., observed, " Many of the considerations of justice and policy which led to the adoption of the general rule now perfectly well established, that a party who employs several persons in the conduct of some common entei'prize or undertaking is not responsible to any one of them for the injurious consequences of the mere negligence or carelessness of the others in the performance of their respective duties, have an equal significancy and force when applied to actions brought for like causes by one servant against another. In the latter as in the former case, they are pi-esumed to under- stand and appreciate the ordinary risk and peril incident to the service in m hich they are to be employed, and to predicate the compensation they are to receive, in some measure upon the extent of the hazard they assume. The knowledge that no legal redress is afforded for damages occasioned by the inatten- tion or unfaithfulness of other lal oarers engaged in the same common work will naturally induce each one to be not only a strict observer of the conduct of others, but to be more prudent and careful himself, and thus, by increased vigilance, to promote the welfare and safety of all" [t). " But a more obvious and decisive objection to the mainten- ance of such action between tiiese parties is derived from a con- sideration of the nature of the obligation assumed, and the direct accountability of the servant to his employer for its breach. {q) In Southcote v. Stanley, 1 H. & N. 250 ; S. C. 25 L. J., Exch. 339 (1856). (r) Ante, p. 135. (s) Jlbro v.Jaquith, 4 Gray's Rep. (Massach. 1855), 99. A previous action against the com- pany had failed, Albro v. Agawam Canal Campany, ante, p. 139. {t) Faiwell v. Boston and Wor- cester Railroad, 4 Met. 49 (ante, p. 136) ; King v. The Same Rail- road, 9 Cash. 112. master's duty to indemnify the servant, etc. 153 As the duty (o exercise a fit and appropriate degree of care and skill results from their express or implied stipulations with each other, the question whether the contract they have entered into has been faithfully performed belongs to the parties who made it, and by whom, therefore, it is to be definitively settled. Their settlement of it, or if they have made it the subject of litigation, the judgment rendered in the suit between them must be final and conclusive. It is in the latter case res adjudicata, and the same question of negligence is not open to further inquiry nor to be made again the subject of legal investigation. "By permitting this action," said Lord Abinger, in Winterhottom v. Wright (u), which was not dissimilar to the present, " we should be vvorking this injustice, that after the defendant had done everything to the satisfaction of his employer, and after all matters between them had been adjusted, and all accounts settled on the footing of their contract, we should subject them to be ripped open." (m)-10 M. & W. 115. h5 ( 154 ) CHAPTER V. THE LIABILITY OF A MASTER TO THIRD PERSONS FOR THE ACTS OF HIS SERVANT. PAGE Jn Cases of Contract . . . 154 In Cases of Tort — Crimina- liter 174 PACK In Cases of Tort — Civiliter . 183 Servant can only bind his master as his agent. Incapacity of servant to contract on his own be- half, no ob- jection to master's liabilitv. If contract within scope IN CASES OF CONTRACT. The power which a servant possesses of binding his master by contracts entered into in his name is founded upon or rather is the basis of the general law of principal and agent. It is only upon the ground that a servant is the agent of his master, that a master can in any case be made liable upon contracts entered into by his servant, and the principle on which tiie liability of the master upon such contracts depends is, that the act of the servant is, in fact, the act of the master; the maxim being, Qui facit per allutn, facit per seia). And since many persons, sucb as infants and married women, who are incapacitated in general to do acts on their own behalf, which will be absolutely binding upon them, may nevertheless as agents for others do acts which will be binding upon the persons for whom they act {b) ; it would be no objection to the liability of a master upon the contract of his servant that the servant was an infant or a married woman (c) at the time the contract was entered into, — provided the contract was in other respects binding upon the master. But in order that a contract made by a servant may be bind- ing on his master, it must be within the scope of the authority (a) See Bac. Abr. Master and Servant, K. Where a clerk left a bag and papers belonging to his master at an inn, and left with- out paying his bill ; it was held that the innkeeper had a lien on them as against the master, Snead v, Watkins, 1 C. B., N. S. 267. (6) Co. Litt. 52(a); Bac. Abr, Authority, B. ; Story on Agency, ss. 7 and 8, where see the rule of the civil law. See also Emer- son V. Blonden, 1 Esp. 142 ; Paletliorp v. Furnish, 2 Esp. 511, note ; Prestwick v. Marshall, 7 Bing. 565 ; Lindus v. Bradwell, 5 C. B. 583. (e) As to die effect of a con- tract made by a married woman as agent, after the termination of her authority to act as agent, see Smout v. llbery, 10 M. & W. 1. IN CASES OF CONTRACT. 155 entrusted to the servant ; since no agent can bind his principal of servant's beyond the scope of his authority (d). authority. It therefore becomes necessary to inquire what is the scope vvhat is of authority entrusted to a servant with regard to binding his gg^^^^^fg master upon contracts. The answer to this question involves authority. the consideration of several others, for the authority of a ser- vant to contract in his master's name may be given either expressly by deed, writing, or word of mouth; or by implication from the conduct of the master (e). And in either of those cases it may be general (i. e., not unqualified, but to act in all cases of a particular nature), or it may be special, {i. e., to act in one particular instance) (/"). Again, in any of the before-mentioned cases tlie authority given may be either limited by precise instructions, or unlimited (g). Where authority to contract in his master's name is given to Express a servant by deed or writing, but little difficulty is likely to deed°or'^ ^^ arise in ascertaining the extent of his authority, except, perhaps, writing. from some ambiguity in the expressions used in the instrument conferring \t{h). In such cases it is the duty of the court to explain them, and they will be construed strictly (i). Letters Letters of containing private instructions as to the mode in which the "istruction. authority given is to be exercised (as distinguished from the instrument conferring the authority), being documents of a less formal kind, will receive in general a more liberal construction. But where a servant intending to act in conformity with his instructions has acted in a manner contrary to his master's in- tention, the court will, as between him and his master, construe them in a manner favourable to the servant and against the master, if they are capable of such a construction, upon the principle that verbafortuis accipiuntur contra proferentem {k). The efl^ect of express verbal instructions to the servant will Express be considered hereafter, as it depends upon whether the servant authority has a general authority to act for his master, or is merely specially employed on one particular occasion. Where a master has recognized and adopted a contract Ratification, entered into in his name by his servant, he will be equally liable upon it, as if he had previously expressly authorized the servant to enter into it, the maxim in such cases being omnis {d} On this ground it has ington v. Herring, 5 Bing. 442 ; been held that an acknowledg- Heraud v. Leafe, 5 C. B. 157. ment signed by a clerk would (?) Howard v. Baillie, 2 H. not bar the Statute of Limita- Bl. 618; Murray v. East India tions, Hi/de v. Johnson, 2 Bing. Company, 5 B. & Aid. 211 ; Ait- N. C. 776; and see Bayley v. wood v. Mannings, ubi stipra ; ^s//lieil from a single recog- nized dealing. In most cases it would be a question for a jury whether the defendant held out the servant as his agent for the purpose of ordering the goods in question. (6) Sir R. IVayland's Case, 3 Salk. 234; and see Miller v. Hamilton, 5 C. & P, 433. (c) Riisby V. Scarlett, 5 Esp. 76. (d) Summers v. Solomon, 26 L. J., Q. B. 301 ; S. C. 7 E. & B. 879. Bramwell, B., does not assent to the law laid down in this case, 3 H. & N. 794. (e) Heald v. Ktnworthy, 10 Exc. 739. (/) Mac far lane v. Giannaco- pulo, 3 H. & N. 860. (g) Richardson v. Cartivright, 1 Carr. & K. 328 ; see Thompson V. Bell, 10 Exc. 10, where a joint stock bank was held bound by an act of the manager. See also Pauling v. London and North- western Railway Company, 8 Exc. 867. IN CASES OF CONTRACT. 159 bound by a contract entered into by his foreman to furnish the bound by -■-—■•• - — - - - contract ' foreman plaintiff with a large quantity of Scotch fir staves ; "as a fore- '=°"t'"actof man employed to conduct a business like that in which the de- fendant was engaged, must be taken to have a general authority to bind his master by such contracts." And if a person goes Winkfieidv. to the office of a carrier and asks what a thing will be done for, P'^e^ington. and he is told by a clerk, or servant, who is transacting the business there that it will be done for a certain sum, the master can charge no more, although he has previously ordered his clerks to charge more {h). A company established for the manufacture of glass, completely Manager of registered under 7 & 8 Vict. c. 1 10 (i), had power under their deed joint stock of settlementto appoint a wawG^er- of their works, &c., to "super- '^''^P^^y- intend and transact, under the control of the board of directors, the manufacturing business of the company," and to whom the board of directors were, by another part of the deed, authorized to delegate "such and so many of the powers thereby given to them as would enable him to carry on the said works and ma- nufacturing business in an efficient manner." It was held that the company were liable for goods supplied to them for the pur- poses of their manufactures upon orders given by such manager, although there was no express delegation of authority (h). The principle of presumptive agency on which these cases Presumptive were decided has been extended to cases in which the person agency ex- who assumed to act as servant was not really servant, but was stran'^-'er'in considered to have been held out as servant by the act of the counting- master, l'""^'^- Thus a merchant has been held bound by a payment in the Payment to usual course of business to a person found in his countincr-house ?uchaperson . ~ . lii coiirs6 of and appearing to be entrusted with the conduct of the business business there, though it turned out that the person was never employed i^eW good, by him, and the money never came to his hands ; for, said Lord Tenterden, " The debtor has a right to suppose that the tradesman has the control of his own premises, and tliat he will not allow persons to come there and intermeddle in his business without his authority " (Z). And so a tender to a person, pro- Tender to bably a chief clerk, in the office of an attorney, who refused to person in an accept the amount tendered as insufficient, has been held office"'pro- good : being equivalent to a tender to the attorney himself (m). baWyacierk, held good. (A) Winkfield v. Packington, 2 C. B., N. S. 725 ; S. C. 27 I.. J., C. & P. 599. C. P. 95 ; Prince of Wales Assur- (i) This act is now repealed, a>ice Society v. Jthenaum Assnr- 19 & 20 Vict. c. 47, s. 107 ; 20 axce Society, 27 L. J., Q. B. 297. & 21 Vict. c. 14, s. 23 ; except {I) Barrett v. Deere, Mood. & as to insurance companies, 20 & M. 200; and see per Maule, J., 21 Vict. c. 80. ill Smith v. Hull Glass Compavy, (k) Smith v. Hull Glass Com- 11 C. B. 928; and in Mitcheson party, 11 C. B. 897 ; see also Ex v. Oliver, 5 E. & B. 439. parte Greenwood, 3 De. G. M. & (m) Wilmutt v. Smith, Mood. G. 459; S. C. 18 Jurist, 387; & Malk. 238. In Moffat v. Par- Ernest v. Nicholls, 6 Ho. Lords sons, 5 Taunt. 307, tender of Cas. 401 ; Forbes v. Marshall, II payment to a servant who, in Exc. 166, 179 ; Re Jlhenreum Life pursuance of his master's orders, Assurance Company, 27 L. J., Ch. refused to accept it, was held a 829 ; Agar v. Same Company, 3 good tender to the master. 160 LIABILITY OF MASTRR TO THIRD PERSONS, ETC. And an attorney lias been held liable to refund money and pay the costs ot'tbe ap])lication where some one in his oHice extorted an excessive sum for costs, altliough the matter did not come to his personal coijnizance (n). And payment to a sheriff's bailiff's assistant has been held good as against the sheriff (o). Implied mi- Again, although "it may be admitted that an authority to draw, cierk'to" ^^^'^ "^'^ import in itself an authority to endorse, bills, still the endorse bills, evidence of such authority to draw is Jiot to be withheld from the jury, who are to determine on the whole of the evidence whether such authority to endorse exists or not "(;?). And, therefore, where the defendants' confidential clerk had been accustomed to draw cheques for them, and in one instance, at least, tliey had authorized him to endorse, and in two other instances had received money obtained by his endorsing in their names, a jury were held warranted in inferring therefrom that the clerk had a general authority to endorse '§■). Smith V. ^]|(j if, a case (r) in which the defendant was held liable upon a charter-party signed by his brother ("per proc. of" the detendant), whom he had left at Limerick to conduct his busi- ness, which consisted in buying up corn for shipment, Pollock, C. B., observed : — " It would be most inconvenient if a person could not go into a shop and purchase an article without first asking the shopman whether he has authority to sell it. It may be that he was merely employed to sweep the shop ; but it would be absurd to ap[)ly to the general business of life tiie doc- trine as to the necessity of ascertaining whether an agent is acting within tlie scope of his authority — indeed the business of London could not go on." And he afterwards said : " When the holder of a bill has ascertained that the person who has accepted the bill as agent or by procuration is a clerk in the house, and in the course of his employment has from day to day accepted bills of that sort, that is enough, and he need not ask for his power of attorney or authority, nor whether that particular bill is on account of the firm. When you find him in the house acting and recognized as the agent of the firm, you need not make any further inquiry, and yet it may turn out that he has never accepted a bill without a schedule being laid before him in the morning of all bills that were to be accepted by him on that day. Persons are supposed to carry on their business accord- ing to the ordinarj^ arrangement of mankind generally. If a per- son conducts his business as the defendant did, by an agent who acts in his absence, in my judgment it is a question for the jury whether, according to the ordinary mode in which business is carried on, the reasonable conclusion to be drawn from these circumstances is not that he had authority as a general agent, and, if so, the principal is bound, though it should turn out (n) Palmer v. Evans, 1 C. B., and see Barber v. Givgell, 3 Esp. N. S. 151. 60; LleweUfinv. Winckworth, 13 (o) Gregory v. Cotterell, 5 E. M. & W. 598; Summers v. Solo- Si B. 571. mon, supra, p. 158. (;>) Per Tindal, C. J., Prescott (;■) Smith v. M'Guire, 3 H. & V, Flinn, 9 Bing. 22. N. 561 ; S. C. 27 L. J., Exc. (q) Prescott V. Flinn, ubisvpra; 4:65. IN CASES OP CONTRACT. 161 that he had limited the extent of the agency by certain rules and regulations." And a man has been held liable upon a guarantee given in Guarantee, his name by his son who had signed for his father in three or four instances, and had accepted bills for him Ir). Where a servant is emj)Ioyed to transact business, and has no Servant particular orders with reference to the manner in which the without pre- \ . . , 1 • • 1 1 • 1 • 1 cise authority busmess is to be transacted, he is considered as invested with hasaiipowers all the authority necessary for transacting the business entrusted necessary to him, and which is visually entrusted to agents (s) employed siJniJ^r^ase". in matters of a similar nature. In this respect there is no dis- tinction whether the authority be general or special, express or implied. In each case it embraces the appropriate means to ac- complish the desired end {t). Thus a servant sent without money to buy goods has implied authority to pledge his master's cre- dit (m).. Upon this principle it was held in a very old case {x) that if Warranty by a goldsmitli make plate wherein he mingles dross, so that it is tr"f"if"" not according to the standard, and send his servant to a fair to sell. sell it, who sells it for good plate, according to the standard, an action upon the case lies against the master. And so a horse- dealer has been held liable upon the warranty of his servant entrusted to sell, where the warranty was part of the transac- tion of sale( ?/). And so also where a person who was not a horse-dealer, sent Heiyenr v. his servant with his horse to Tattersall's for sale, with instructions -^""'*^- to warrant him sound, and he warranted him free from vice; the master was held liable upon the warranty, although it was contended on his behalf that the servant was but a special agent, and he having exceeded his authority, the master ought not to be bound. But, said Lord Ellenborough, C. J., " the master having- entrusted the servant to sell, he is entrusted to do all that he can to effectuate the sale, and if he does exceed his authority in so doing, he binds his master" (z). And in another Alexander v. case («), where the defendant's servant, who was entrusted to Gibson. sell and receive the price, sold a horse at a fair to the plaintiff, and warranted him sound, the defendant was held liable for a (r) Watkins v. Vince, 2 Stark. man v, Williams, 7 Q. B. 103 ; 368. Story on Ag. 264. {s) Story on Ag-. 60 ; and see {y) Fenn v. Harrison, 3 T. R. per Lord Wensleydale, in Cox v. 760; Pickering v. Busk, 15 East, Midland Counties Railway Com- 45 ; Heltjear v. Hawke, 5 Esp. pany, 3 Exc. 278. 72 ; Woodin v. Burford, 2 Cr. & (0 Story on Ag. 85, 97; M. 391 ; see Coleman v. Riches, Howard V. Baillie, 2 H. BI. 618. {Q C. B. 113. {u) Tobin v. Crawford, 9 M. & (x) Heli/ear v. Hawke, 5 Esp. W. 718. 72. In Smith v. M-Guire, 3 H. {x) Southern v. How, Cro. Jac. & N. 563, Pollock, C. B., said, 471; and see Hern v. Nichalls, I " If a man sends his servant to Salk. 289. As to how far the market to sell goods, or a horse master is affected by fraud of for a certain price, and the ser- his servant, see Conifoot v. Foivke, vant sells thciii for less, the mas- 6 M. & W. 358 ; Fuller v. IVil- tcr is bound by it." son, 3 Q. B. 58; Jones v. Down- (a) Alexander v. Gibson, 2 man, 4 Q. B. 235, note; Down- Camp. 555; see 16 C. B. 113. 162 LIABILITY OF MASTER TO THIRD PERSONS, ETC. AV'arraiity must lie part oftiansaction of sale to bind master. Woodin V. Harford. Alteration in warranty. Implied authority cannot be extended to collateral transactions. breacli of the warraiitj^ ; and Lord Ellenboronsjh said, " If the servant was authorizrd to sell the horse, and to receive the stipulated price, I think he was incidentally authorized to give ii warranty of soundness. It is now most usual on the sale of horses to requii-e a warranty, and the a^ent who is employed to sell, when he warrants the horse, may fairly be presumed to be actini; within the scope of his autliority. This is the common and usual manner in which tiie business is done, and the agent must be taken to be vested with power to transact the business with which he is entrusted, in the common and usual manner. I am of oi)inion, t])erefore, that if the defendant's servant war- ranted this horse to be sound, the defendant is bound by the warranty" ib). But although a warranty by a servant entrusted to sell, given at the tiine of sale, and as •part of the transaction of selling, will bind the master, yet an acknowledgment to that effect, made at another time, would not bind him {c). And where there had been a previous haivjain between the plaintiff and the deti^ndant, who was a horse-dealer, for the Side of a horse, and the defendant's servant, being sent to deliver the horse and receive the price, gave a warranty, the deflnidant was held not liable (c?). And so a master has been held not bound by an alteration in a warranty made by a servant sent to receive the price (e). These two last-mentioned cases, however, depend upon the general rule, that an implied authority cannot be extended to collateral transactions. Thus, though a clerk, apprentice or shopman, may have an implied authority to receive money paid in the usual course of business, you could not from that infer an authority to receive payments out of the usual course of business, as deposit on a wager, payment of a mortgage, legacy, or the like (./'). So, a clerk who has authority to receive cash across the counter, has not authority to receive payments by cheque by post [g). So, a clerk employed to obtain orders, is not by reason thereof authorized to receive payment for goods supplied (A) ; and a debtor paying him, makes him his agent to hand the money to (6) And if an agent, entrusted 400. to sell and warrant, do sell and warrant, and receive the money, but afterwards, in consequence of the goods sold not answering the warranty, return the money to the purchaser, the principal cannot treat the price as money had and received to his use, by the agent, Murray v. Mann, 2 Exc. 538. (c) Hehjear v. Hawke, 5 Esp. 72, supra ; Peto v. Hague, 5 Esp. 135; Allen v. Dunstone, 8 C. & P. 760; see Dyer, 76 a, citing 5 H. 7, 41 b. (d) JVoodin v. Burford, 2 Cr. & M. 391. (e) Strode v. Dyson, 1 Smith, ( / ) Sanderson v. Bell, 2 Cr. & M. 304; and see Sykes v. Giles, 5 M. & W. 545, where it was held that an auctioneer, expressly au- thorized by the conditions of sale to receive a deposit, had no implied authority to receive the residue of the purchase-money. See also Boulton v. Reynolds, 29 L. J., Q. B. 11, where it was held that a man in possession of goods distrained for rent has no au- thority in law to receive the rent. (g) Kaye\. Brett, Exc. 269; see Summers v. Solomon, ante, p. 158. {h) Puttock v. Warr, 31 Law T. 86. IN CASES OF CONTRACT. 163 the creditor, and if he fails to do so, must pay over again. So, a traveller who receives orders for goods from his emploj'er's customers, if authorized to receive payment for them in money, cannot take o^h^x goods in payment (^). So, in an action against pawnbrokers (A) to recover plate de- Admission posited with them upon a mortgage, out of the usual course of out^of^course business, an admission by a shopman of the defendant's that of business they had the plate, was held not admissible as evidence against ^yi^i "°t ^'"'' them, for the transaction was not a transaction in the business of a pawnbroker, but a loan, as by any other lender of money at five per cent., and tliere was no evidence to show the agency of the shopman in private transactions, unconnected with the business of the shop. And Tindal, C. J., said, " If the trans- action out of which this suit arises had been one in the ordinarj'' trade or business of the defendants, as pawnbrokers, in which trade the shopman was agent or servant to the defendant, a declaration of such agent that his master had received the goods, might probably have been evidence against the master, as it might be held within the scope of such agent's authority to give an answer to such an inquiry made by any person in- terested in the goods deposited with the pawnbroker. In that case the rule laid down by the Master of the Rolls in the case of Fairlie v. Hastings (l), which may be regarded as the leading case on this head of evidence, directly applies." And it would be no answer to an action by a master against carriers for loss of, or injury to, his goods, that they had received them from a servant, and had settled with him, unless the servant was authorized by his master to settle (m). And an , estate or farm agent employed to receive rents, and conduct such farming operations as repairing, draining, cutting timber, and the like, could not without express authority make ad- missions in writing, or otherwise, as to his employer's title, or bind him by proposals to purchase, or take on lease, the lands of another (n). Even an attorney, employed in a matter of business, is not an agent to make admission for his client except after action commenced, and in matters relating to that action (o). Upon similar principles it is that, although an entry made at Entry by the time when the facts recorded took place by a deceased '?fj;t^lt'!„ 11 1 .1 , p 1 • "^ • • I clerk only Clerk or other servant in the usual course oi business, js evidence, evidence of after his decease, of the facts stated in such entry ; yet if other facts usually facts, not usually stated in entries of a similar nature, happen ^ " ^ • (i) Howard v. Chapman, 4i C. 136; 1 Ph. on Ev. 382 ; Price v. & P. 508. Marsh, 1 C. & P. 60 ; Jones v. (k) Garth v. Howard, 8 Bing. Hart, Lord Raym. 738 ; S. C. 451 ; S. C. 5 C. & P. 346; see Salk. 441. Gardner v. Moult, 10 A. & E. (m) Coombs v. Bristol and Exe- 464, where the defendants were ter Railway Compa7i)j,3 H.ScN.l. held bound by an admission by (n) Ley v. Peter, 26 L. J., their servant of an act of bank- Exc. 239. ruptcy on the part of a bank- (o) Wagstaff v. Wilson, 4 B. ru])t. & Ad. 339 ; Blackstone v. Wilson, (0 10 Ves. 128; and sec on 26 L. J., Exc. 229. this point, Story on Agency, s. 164 LIABILITY OF MASTER TO THIRD PERSONS, ETC. Nor is it in- creased by emergency of particular oc- casion. Hawlnynev. Sourne. Cox V. Mid- land Counties Railway Company. Contract made in servant's name. Servant's intention merely to l)ind himself. to be mentioned in making a particular entry, it is not evidence of tliose facts {p). Moreover, the implied power of a servant to bind his master upon contracts relating to matters within the usual scope of his emj)loyment, is riot increased by the eniercjcncy of any parti- cuhir occasion (ry). And, therefore, where (r) a mining company fell into (litficulties in conseciuence of the calls not being paid up, and the agent from want of funds was unable to pay the labourers, wlio applied to the magistrates and obtained war- rants of distress upon the materials belonging to the mine : whereui)on the agent borrowed money upon the credit of the company and paid the wages, it was held that he had no implied authority to do so. Although there were circumstances in the case from Avhich a jury might have inferred an express authority to borrow money for the purposes of the mine. So a station-master, or other servant of a railway company, has no implied authority in case of accident to bind the com- pany by calling in a surgeon to attend on passengers, for the power to enter into such a contract is not incident to his employment (s). It makes no difference in the master's liability that the contract is made in the servant's name, if in reality he were acting as agent for liis master in making the contract. For parol evidence is always necessary to show that the party sued is the person making the contract and bound by it. Whether he does so in his own name, or in that of another, or in a feigned name, and whether the contract be signed by his own hand, or by that of an agent, are inquiries not different in their nature from the question who is the person who has just ordered goods in a shop. If he is sued for the price tlie contiact is not varied by appearing to have been made by liim in a name not his own {t). And so if a landed proprietor send his steward habitually to the neighbouring fairs and markets to make sales and purchases for him in matters connected with the management of his estate, and the steward makes all these contracts in his own name, but is universally known to have no land of his own, and to be (p) Chambers v. Bernasconi, 1 C. M. & R. 347; see Price v. Earl of Torritigton, Salk. 285 ; S. C. 1 Smith's L. C. 139; 1 Ph. on Ev. ch. 7, s. 8, where all the prior cases are stated and com- mented on. See also R. v. Du- kbijield, 11 Q. B. 678; 7 Exc. 3. {q) Story on Ag. 87. (r) Hau'tayne v. Bourne, 7 M. & W. 595 ; and see Ricketts v. Bennett, 4 C. B. 686 ; In re The German Mining Company, 22 Law J., Ch. 926. (s) Cox v. Midland Counties Railway Company, 3 Exc. 268. (<) Per Lord Denman, C. J., in Trueman v. Loder, 11 A. & E. 594, 595 ; and see Thomson v. Davenport, 2 Smith's L. C. 225, 226 ; Lindus v. Bradwell, 5 C. B. 583. The general rule with re- gard to contracts made by agents is, that the agent may sue or be sued in respect of his privity, and the principal in respect of his interest. See Sims v. Bond, 5 B. & Ad. 389. Wbere, however, a servant or other agent has signed a written contract in his own name, he cannot give parol evidence to discharge himself from liability upon the contract, Hig- gins V. Se7mr, 8 M. & W. 834. IN CASES OF CONTRACT. 165 acting solely for his employer, by his direction, and on his credit ; the steward's intention to make liiniselt' the owner of articles bought on one particular occasion in the course of the same dealing could not deprive the vendor of his recourse against the master (u). And, since the nature of the usual employment of a servant is Effect of the measure of his implied authority, it follows that that autho- privateorders rity can neither be limited by the private iyistructions of the master, or controlled by any secret agreement between him and his servant. If this could be done, in what a perilous pre- dicament would the world stand in respect of their dealings with persons who may have secret communications with their principals? There would be an end of all dealing but with the master (.r). Should the servant deviate from his master's orders or be guilty of a breach of any secret agreement between him- self and his master, he will be accountable to his master for anj"^ loss he may sustain thereby, but third persons cannot be Innocent affected by any limitation of the servant's authority not com- third persons municated to them (?/). In such cases, however, it is material by them. ^ to bear in mind the distinction before adverted to, between a Distinction special and ?l general authority ("the latter of which does not between import an unqualified authority, but that which is derived from g'^"^J^' ^"^^ '^ ,.,*,. . IIP • ,. , special agent. a multitude ot instances, whereas the former is confined to an individual instance") (z), as the legal effect of secret instruc- tions is very different in the two cases. The difference cannot And differ- be more clearly stated than in the words of Mr. Smith, in his en^e in effect Compendium of Mercantile Law. He says fa) : — " The au- orders in thority of a general agent to perform all things usual in the such cases. line of business in which he is employed cannot be limited by any private order or direction not known to the party dealing with him. But the rule is directly the reverse concerning a particular agent, i. e., an agent employed specially in one single transaction, for it is the duty of the party dealing with such a one to ascertain the extent of his authority, and if he do not he must abide the consequences" {b). A servant may be regarded as the general agent of his master How far for all purposes within the scope of his employment. If em- servant ployed for any unusual purpose, he may be looked upon as the ofhts'masfer, special agent of his master (e). Thus, for instance, if a man and how far special. (m) See per Lord Denman, in 2 to s. 127 ; Hawken v. Bourne, Trueman v. Loder, 11 A. & E. 8 M. & W. 710. 593. (6) Mr. Justice Story, after {x) 10 Mod. 110. quoting the words in the text, {y) Paley on Ag. 199 ; 1 Po- adds, " This is true if the agent thier on Oblig. by Evans, n. 79; is not held out as possessing a see also ib. n. 44-7, 448 ; Cahill v. more enlarged authority," Story Dawson, 26 L. J., C. P. 253; .S'. on Agency, s. 126, note 2. C. 3 C. B., N. S. 106. (c) The nature and extent of (z) Per Lord Ellenborough in a servant's im|)Iied authority Whitehead v. Tucket, 15 East, must, however, as is obvious, fre- 408; and see Paley on Ag. 199. queiitly involve questions fit for (o) Smith's Merc. Law, 119; the consideration of a jury. See see Story on Ag. s. 126, and note Smith's Merc. Law, 117; Dyer 166 LIABILITY OF MASTER TO THIRD PERSONS, ETC. were in the habit of paying for hay and straw purchased by his grootu, the groom might be regarded as his general agent for the purchase of a reasonable quiintity of hay and straw, and the master would be liable to pay for sucii hay and straw pur- chased by tiie groom, even if in a particular instance the groom acted contrary to his master's orders. But such a groom could not be looked upon as the general agent of his master, so as to render him liable to pay ibr anything else tiie groom might choose to buy in his master's name, tiie obtaining other things not being within the scope of his employment. If he were sent by liis master with money to purchase beer or wine, he would be a special agent for that occasion ; and if the ])erson of whom he bought it chose to let him take it away without payment and without ascertaining that he had authority to pledge his master's credit, he must abide the consequences ; the master would not be liable. Implied Bearing, therefore, this distinction in mind, it may be stated fhority'caii- ^^ ^ general rule, that wherever a master has by his conduct not be held out his servant as his general agent, whether in all kinds limited by of business or in transacting business of a particular kind, the ordersf master will be bound by the act of his servant, if within the scope of his usual employment, notwithstanding the servant has acted contrary to his master's orders. Nickson v. Thus, where (d) umaster senth'is Servant, w/io was used totrans- Brohan. ^^^ affairs of that nature for him, on Saturday, with a note drawn on Sir S. E., with orders to get from Sir S. E. either bank bills or money and turn them into Exchequer notes, but the servant to save himself time and trouble, went to B., and prevailed with him to give him a bank bill for the note upon Sir S. E., and then, in pursuance of his master's orders, invested it in Exchequer notes, which he brought to his master, not letting him know but that he had gone to Sir S. E. Sir S. E. failed upon the Monday following. The question was upon whom the loss should fall, B. or the master. And the whole court were of opinion that the master was chargeable and he only, for a servant, by transacting affairs for his master, does thereby derive a general authority and credit from him ; and, if this general authority should be liable to be determined for a time by any particular instructions or orders to which none but the master and servant are privy, there would be an end of all deal- ing but with the master. Horse-dealer Upon similar grounds rests the distinction that if a horse-dealer warranty of '^^ ^ person keeping livery stables, having a horse to sell, ex- servant, pressly direct his servant not to warrant him, and the servant do ordered not to warrant. V.Pearson, 3 B. & C. 38; Todd 109; Ward v. Evans, 2 Salk. V. Rohhison, Ry. & M. 217 ; Gill- 442 ; C Mod. 36 ; 2 Lord Raym. man v. Robinson, Ry. & M. 226 ; 928; Thorold v. Smith, 11 Mod. Barnett v. Laynbert, 15 M. & W. 71, 87 ; see Dulce of Beaufort v. 493 ; Rcynell v. Lewis, 15 M. & Neeld, 12 CI. & F. 248 ; Smitli v. W. 517; Williams v. Pigolt, 2 M'Guire, 3 H. & N. 554; S. C. Exc. 201. 27 L. J., Exc. 465. {d) Nickson v. BroUan, 10 Mod. IN CASES OF CONTRACT. 167 nevertheless warrant liim, still the master would be liable upon the warranty, because the servant was acting within the general scope of his authority, and the public cannot be supposed to be cognizant of any private conversation between the master and servant (<*) ; but if the owner of a horse were to send a stranger But not on to a fair ivUh exprens directions not to icarrant the horse, and warranty of the latter acted contrary to the orders, the purchaser could only ordere^to have recourse to the person who actually sold the horse, and the sell, and not owner would not be liable on the warranty, because the servant warrant. was not acting within the scope of his authority {f)- Upon tiie same principle a gentleman, wdio by an agreement Precious v. with his groom allowed him five guineas a year for which he '^*'^'- was to keep the horses shod, was held nevertheless to be liable to pay a farrier's bill for shoeing his horses, as it did not appear that the farrier knew of the agreement ; and Lord Kenyon said, "That unless the farrier knew of the agreement and expressly trusted the groom it was no defence, for a tradesman has nothing to do with any private ao-reement between the master and ser- vant" (9). And where (/<) a gentleman contracted with \i\s nimeiiv. coachman, at 220Z. a year, to provide horses and his own livery Sampayu. and everything connected with the carriage, but the coachman went in his master's livery to the plaintiff's stables and repre- sented that he wanted a pair of job-horses for his master's car- riage, and an agreement was made with him, at ten guineas a month, whereupon he took the horses away, and his master used them, and the ])laintiff then sued the master for four months' hire ; it was held not necessary for the plaintiff to prove that the coachman acted by his master's authority, as he had used the horses: and Littledale, J., said, " If the coachman made the contract in his own name, and represented to the plaintiff tlie agreement between himself and his master, of course, under such circumstances, the plaintiff cannot recover ; but if lie made no such representation of any agreement between himself and his master, I think that by the master sending him forth into the world, wearing his livery, to hire horses w'hich he (the master) afterwards uses, knowing of whom they were hired, and yet not sending to ascertain if his credit had been pledged for them, an implied authority is given, and the inaster is bound to pay the hire. A master may be prevented by busi- ness or want of time from making a bargain himself, and may send his servant, and provided the business be ivithin the regular department of the servant, the master is clearly liable." The (e) Fenn v. Harrison, 3 T. R. circumstances, he is bound to 760; Pickering v. Busk, 15 East, take back the horse and return 45; see Story on Agency, s. 132. the money, if paid. To hold In note 4, that learned author otherwise would be to allow him says, " In America livery stable to take advantage of his servant's keepers are not understood to fraud. See per Lord Abinger in give their servant-; any general Cornfootx. Fuwke,ii M. & W. 381. authority to sell their horses." {g) Precious v. Abel, 1 Esp. (/) Ibid. But if the master 350. is unwilling to adopt a warranty (/() Rimell v. Sampayo, 1 C. & given by his servant under such P. 255. 168 master's liability to third persons, etc. If third party know of private orders, mas- ter not t)ound. Jordan v. Norton. Where ser- vant is 3 special agent, parties deal- ing with liim must inquire into his authority. Ward V. Evans. Waters v. Brogden. Fenn v. Har- rison. jury, however, having found that there was no evidence of any direct application to the master on the part of the plaintiff, found a vt-nlict for tlic defendant (i). If a tliird party, dealing with a servant on behalf of his master, /mow of the ))rivate agreement or instructions given by the master to Ids servant, he cannot of course charge, the master (Z-) upon any contract contrary to that agreement. Ac- cordingly, where (/) the defendant sent his son to obtain from the plaintiff a horse which he had agreed to sell to the defendant, and the plaintitf knew that the son was instructed only to take the horse if warranted, but the son took it without a warranty, it was held that the defendant was not liable to pay for the horse, which did not answer the warranty agreed to be given. But where a servant is employed by his master to act for liim in a single transaction, he must be regarded as the special agent of his master ; and, in such case, it is incumbent upon every one dealing with him, who wisiies to charge his master upoii his contracts, to inquire into the extent of his authority, as, should he e.vceed it, his master will not be bound. And, therefore, where (w) the plaintiff sent his servant to receive 60^. from B., and B. desired E., who owed him money, to strike off GOl. from his debt and pay the plaintiff's servant; E. accordingly credited himself with 60Z. in account with B., but instead of giving the plaintiff's servant money gave him a goldsmith's note, which the servant accepted as payment ; it was held that the plaintiff was not bound by the act of the ser- vant in receiving the note instead of money. Again, where (/z) the defendant drew a cheque in favour of a creditor, and gave it to his own farm bailiff (who bought and sold cattle for liiui) with instructions to deliver it to the creditor in whose favour it was drawn, bnt the bailiff, at the request of the creditor, got it discounted by the plaintiff (a banker at some distance), and gave the money to the creditor ; some days afterwaids the bankers on whom the cheque was drawn failed, and the plaintiff having omitted to present the cheque to them, brought an action against the defendant for the amount : but Alexander, C. B., was of opinion that the defendant was not bound by the act of his farm bailiffj who had no authority to act as he had done. So, as we have seen, if the owner of a horse send a stranger to a fair, with express directions not to warrant the horse, and the latter act contrary to the orders, the purchaser could only have recourse to the person who actually sold the horse, and the (i) See Hiscox v. Greenwood, 4 Esp. 174, where a servant, having acted heyond the scope of his employment, Lord Ellenborough thought the tradesman, not hav- ing inquired of the master, could not charge him. (A) Howard v. Braithwaite, I Ves. & B. 209. (l) Jordan v. Norton, 4 M. & W. 155. In this case, however, it will be observed, that the son was a special agent, into whose authority the party dealing with him is bound to inquire. (»«) IVfird v. Evans, 2 Lord Raym. 928 ; S. C. Salk. 442. (n) Waters v. Brogden, 1 Y. & J. 457. IN CASES OF CONTRACT. 169 owner would not be liable on the warranty, because the servant was a s])ecial agent, and was not acting within the scope of his authority (o). And where a person dealing with an agent has notice, either And so from the mode in which the authoritv is exercised, or it would jil^I^J'^fM'^ • , • , , ^ . . , Healing \v 111! seem m any other manner, that the agent is acting under a him has special authority ; as, for instance, where a bill of exchange is notice that accepted or indorsed by a clerk or cashier " per procuration" agent. of A. B. (the master), C. D. (the agent or servant), he is, a fortiori, bound to inquire whether or not the authority has been properly followed ; and if he do not make such inquiries, and it turn out that the part}^ exceeded his authority, he must suffer for his temerity (p). Therefore, where (f/) the manager of a banking c,m\v^?>M^, Alexander \. who had authority to draw, accept and indorse bills, on account -^ocAewaze. and for the benefit of the company, indorsed a bill for the accommodation of one G., " per proc." of the company, and signed his name, it was held, that the company were not bound by such indorsement. And Coltman, J., said, " Any house may allow a clerk to indorse bills of exchange in the name and on account of the firm, and so give currency to them, notwith- standing any secret limitation of his authority. If this banking company had been in the habit of allowing their cashier or manager to indorse bills on their behalf, that would have im- ported a general authority, and the public would not have been bound to inquire into the circumstances or the precise extent of such authority. But in everj' instance the indorsement by the form of it bears an intimation to the public, that the manager acts under a special authority ; and therefore the persons into whose hands the bills might come, were bound to see that the authority was properly pursued." If upon inquiry into the authority of such an agent, it should Written turnout that he is acting under a icritten authority, parties ^^^'^onty of dealing with him should call for the production of tjie authority, {jg inspected. for should the agent exceed his authority, his principal will not be bound (r). This rule indeed applies equally to the case of a general agent. If, however, the act assumed to be done is within the antho- Private in- rity given, (in ascertaining which the authority must be strictly sfructions construed,) (s) the principal will be bound, although the act done may be in violation of private instructions as to the mode of executing the authority. With such instructions third par- ties have nothing to do (t). It is therefore important to bear in (o) Fenn v. Harrison, 3 T. R. 72 ; and see the American case 760 ; see Paley on Ag. 202. of North River Bank v. Aymar, 3 (/)) Jordan v. Norton, 4 M. & Hill R. 262, there quoted. See W. 155 ; Neale v. Turton, 4 also Balfour v. Ernest, 28 L. J., Bing. 149. C. P. 170, e( cas. ib. cit. (q) Alexander v. Mackenzie, 6 {s) Attwood v. Mannings, ubi C. B. 766; see Smitii v. Johnson, supra; Howard v. Baillie, 2 H. 3 H. & N. 222 ; Smith v. M'Guire, Bl. 618. 3 H. & N. 554, ante, p. 160. {t) Story on Ag. 73 ; and see (r) Attwood V. Mannings, 7 B. Smelhurst v. Taylor, 12 M. & W. & C. 278 ; Story on Agency, s. 545. I 170 master's liability to third persons, etc. Where master is not bound by contract of servant. Sttihhiiig V. HeiiUz. Pearce v. Rogers. Maunder \. Cunijcrs. Hunter V. Countess of Berkelei). Hiscox V. Greenwood. mind the distinction botwoen the two, although it is not in all cases easy to distinguish the one from the other. But where a vuistcr has not either express!}', or by impli- cation, from a course of dealing, authorized his servant to pledge his credit, his servant cannot, by so doing, render him liable to pay for goods so obtained. Thus (zay it over again. But if the master em- ploys his servant to buy things on credit, he will be liable to whatever extent the servant sliall pledge his credit." And so where {x) tiie defendant dealt with the plaintiff" for the porter used in liis family, and was in the habit of paying ready money to the ])laintiff' for a certain quantity which was allowed for the family, but the maid-servant obtained some clandestinely for her own use, and that of the defendant's wife's mother, but it did not appear that the plaintiff knew of this circumstance, it was held that the defendant was not liable; Lord Eldon saying, that " to allow such a demand would be to put it in the power of servants and tradesmen to ruin the master." Again, where (?/) a butler ordered brandy in his master's name, and the brandy was consumed by the butler and cook, without the master being ])rivy to the order, delivery or con- sumption, the master was held not liable to pay for it. And where {z) a lady ordered of a tailor two suits of livery a* year for her coachman, and the tailor supplied one ; but, at the desire of the coachman, supplied plain clothes instead of the other, it was held that the lady was only liable to pay for the livery actually supplied, and was entitled to set off' against a subsequent account for clothes the price of a suit of livery which had been supplied and paid for, but taken back by the tailor from the coachman. Upon similar principles where (a) a servant, having injured his master's chaise by careless driving, left it with a coachmaker to be repaired without acquainting his master, and without any orders from him, and it appeared that he had never employed the coachmaker, who refused to deliver up the chaise without (a) Stubbing v. Heinlz, Peake, 47 ; and see per Lord Abinger, C. B., in Flemijn^ v. Hector, 2 M. &W. 181. ix) Pearce v. Rogers, 3 Esp. 214. (?/) Mminder v. Conyers, 2 Stark. 281. {z) Hunter v. Countess Doivager of Berkeley, 7 C. & P. 413. (a) Hiscox V. Greenwood, 4 Esp. 174. IN CASES OF CONTRACT. 171 payment of liis bill for the repairs. The master having brought an action for the chnise, recovered; as it was held that the coachniaker, not having inquired of the master whether the order for repairs w^as given by his authority, had no claim against him for the amount of his bill. So if a servant be left in charge of children with a sufficient Servantleft allowance for their support, he has no power to pledge his mas- in "j'largeof ter's credit for necessaries or goods supplied for the support of the children {b). The bailiff of a large farming establishment, through whose implied hands all payments and receipts takes place, has no implied ^""^""*.y."'^ authority to pledge the credit of his employer by drawing and endorsing bills in his nanie(c). Nor has the resident Mining agent (c?) of a mining company, or a co-adventurer (e), an im- agent, plied authority to borrow money upon the credit of the share- holders. And the secretary of a company who has authority only to accept bills drawn by A. on the company, cannot bind the directors by accepting bills drawn by B. {f) Nor has the country agent of an insurance company authority A^ent to to receive imyment of premiums after the usual fifteen days' l"s"rance / \ 1" I ^1 ^ !• • Companv. grace (//j. iNor lias the agent or an insurance company power to bind the company by issuing policies contrary to the deed of settlement (/<). Nor has the secretary of an intended railway company implied Secretary of authority, as such, to bind individual members of the provisional J^^'i^'^y *' '. . , , „ J^ , Company. or managnig committee upon contracts, even tor articles neces- sary for carrying on the business of the company. In order to fix them with liability to pay for goods, work or labour, &c., ordered by the secretary, it is necessary to connect the party sought to be charged with the order, either by showing his pre- vious consent or subsequent recognition of it(i). The same principle applies to letters written by such secretary. They are only binding upon the board of directors, or such members of it as autliorized the secretary to write them (A). Therefore, Rennie y. where (/) an engineer brought an action against a provisional Wynn. committeeman of a railway company for work and labour in surveying the intended line of railway, and the only evidence to charge the defendant was a letter written by the secretary, but (&) Atlcynsv.Pearce, 26 L. J., 3 H. & N. 789. C. P. 252. (i) See Burnett v. Lambert, 15 (e) Davidson v. Stanley, 2 M. M. & W. 489 ; Reynell v. Lewis, & G. 721 ; see Waters v. Brogden, 15 M. & W. 517 ; Cooke v. Ton- 1 Y. & J. 457. Idn, 9 Q. B. 930 ; Barker v. (rf) Hawtayne v. Bourne, 7 M. Stead, 3 C. B. 946 ; Williams v. & W. 595. Pigott, 2 Exc. 201 ; Bailey v. (e) Ricketts V. Beimetf, i CJi. Macaulay ; and other cases, 19 686. L. J., Q. B. 73 ; 13 Q. B. 815. (/) Neale v. Turton, 4 Bing. {k) Burnsidey. Dai/rell, 'i^xc. 149. 224 ; and see Todd' v. Emly, 7 (g) Acey V. Fernie, 7 M. & W. M. & W. 429. 151. {I) Rennie v. Wynn, 4 Exc. (/i) Hamburgh v. JI„ll and 691. London Fire Insurance Company, l2 172 master's liability to third persons, etc. Casliier of Bank. Credit given to servant, ■with know- ledge that he ■was his master's afrent, and vho his master was. Use by master of things ob- tained on his credit. Termination there was no evidence to connect the defendant with the letter, the plaintiff was nonsuited. Upon similar principles it has been held in America in a case (in) in which the cashier of a bank wrote to the secretary of the treasury saying that the bearer was authorized to contract for the transfer of money from New York to New Orleans, and such a transaction \\as not within the scope of the jyowers of the cashier, nor authorized by the directors, that the bank was not bound to reimburse the money which the secretary of the treasury advanced. And in another case(n), that a release given by the president and cashier of a bank to the indorser of a pro- missory note of his liability upon it, did not bind the bank: neither one nor both having authority to make contracts of that kind. Nor can a master be rendered liable upon a contract made by his servant, if at the time the contract is entered into, the party with whom it is made know not only that the servant is only an agent, but also who his master or principal is (o) ; and notwithstanding that knowledge choose to make theserimnt his debtor, dealing with him and him alone. In that case the party cannot, on the failure of the servant to perform the con- tract, turn round and charge his master, having once made his election at the time when he had the power of choosing between the one and the other (p). The fact that articles purchased by a servant have been used hy the 7naster will not alone make the master liable to pay for them where the previous conduct of the master was not such as to give the servant an implied authority to pledge his credit. That fact, however, would be sufficient prima facie evidence to charge the master, unless he could discharge himself by showing either that the credit was given to the servant, or that the servant was supplied by him with ready money to pay for the articles purchased, and therefore had no authority to pledge his master's credit (q). And a master who has been in the habit of paying for goods (m) United States v. ditij Bank of Columbus, 21 How. 356. (ti) Bank of United States v. Dunn, 6 Peters, 51. (o) If the party know the ser- vant to be merely an agent, but do not know who his principal is, and debit the servant ; he may, in that case, charge the principal when discovered, Thom- son v. Davenport, 9 B. & C. 78 ; and see Thomas v. Edwards, 2 M. & W. 215. ( p) See per Lord Tenterden in Thomson v. Davenport, 9 B. & C. 86, following the cases of Addison v. Gandassequi, 4 Taunt. 574 ; and Patersou v. Gandas- sequi, 15 East, 62 ; see 2 Smith's L. C. 198, et seq. And see the converse case of Ramazotti v. Botvring, 29 L. J., C. P. 30. (q) Paley on Ag. 165; Pearce v. Rogers, 3 Esp. 214. See, however, Rimell v. Samuayo, 1 C. & P. 255, ante, p. 167, where Littledale, J., thought that if the master use the articles, he ought to ascertain that his credit is not pledged ; but the jury thought the tradesman ouglit to ascertain that the servant had authority to pledge his master's credit. And see Hisrox v. Greenwood, 4 Esp. 174, ante, p. -170; Pauling v. London and North - Western Rail- ivay Company, 8 Exc. 867 ; Smith V. Hull Glass Co., 11 C. B. 897. IN CASES OF CONTRACT. 173 ordered by his servant, and lias thus impliedly given him of implied iiuthority to pledge liis credit, may, by giving notice to the nolu^'"^ "^^ tradesman wlio has supplied the goods on those terms, revoke or terminate the servants authority to pledge his master's credit. Where it is clear that the tradesman has received notice of Injunction to the revocation or termination of a servant's authority to pledge ^rou'^iu^after his master's credit, a court of equity vt'ould grant an injunction notice. to restrain an action brought by such tradesman against the master to recover tlie price of 'goods supplied to the servant as on the master's credit after notice ; as in the case of a wine merchant suing the master for the price of wine supplied to a discharged butler after notice of such discharge (r). Where (s), however, the defendant had been in the habit of Notice to dealino- with the plaintiff for beer on credit, but once, when he tradesman's ■ 1 1 1 -11 111 1 1 Till 1 1 11 servant not paid the bill, told the man who brought tiie beer tliat he would sufficient. run up no more bills with the plaintiff, but would pay for the beer as it came in, and afterwards gave his servant money to pay for the beer, but the servant embezzled it, the defendant was held liable, as he did not show that theplaintiff himself had notice of this change in the mode of dealing : and Lord Eldon said that unless he had, it must be taken that the plaintiff understood that the dealings between him and the defendant continued in the usual way. And it is clear that mere notice to the servant himself, 'who iMere revoca- had general authority to make contracts in his master's name, *'°" 9^ ^^l" •/ ^ ^ ' Vtint s Silt nO" would not exonerate the master from liability upon contracts rity insuffi- made by the servant after his discharge {t). cient. Thus in a case {u) where a servant had power to draw bills — '- v. of exchange in his master's name, and afterwards was turned Harrison. out of the service, 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, or if he were a long time out of his service but that kept so secret that the world cannot take notice of it, the bill in those cases shall bind the master." The case of Monk v. Clayton (x) " where the act of a servant, Monk v. though out of place, bound his master by reason of the former Clayton. credit given him by his master's service, the other not knowing that he was discharged," is one of a similar kind. The master's death operates as a revocation of the servant's Death of authority to pledge his credit ; after that event, therefore, the "'a*'"''^- (r) Duke of Devonshire \, La- (u) y. Harrison, 12 Mod. forest, M. R. Feb. 23, 1854. 346 ; and see Newsome v. Coles, (s) Gratland v. Freeman, 3 2 Camp. 617, where, after a dis- Esp. 85. solution of partnership, and no- {t) Trueman v. Loder, 11 A. & tice of it published in the London E. 589 ; Aste v. Montague, 1 Fost. Gazette, and sent round to all & F. 264. See Tassell v. Cooper, the customers of the firm, the C. B. 509, where the question retiring partners were Iield not arose whether a farm bailiff, wlio liable to pay bills drawn or had orders to deal no more with accepted by the rctnaininfi; ])art- his master's property, was justi- iier in the name of the old firm, fied in receiving money for wheat (.r) Cited by the Court in sold previously. Nidison v. Drolian, 10 Mod. 110. 174 master's liadility to third persons, etc. Lapse of time. Master is not in freiural responsible, criminaliter, for the acts of his ser- vant ; except where lie expressly orders an illegal act. Employer of an innocent agent is prin- cipal though absent. master's representatives would not be bound by the servant's contracts (;/). Lapse of time, also, would, it is conceived in many cases, raise a presumption tliat the servant's authority to plotlge his master's credit was terminated (r). IN CASES OF TORT-CRIMINALITER. A master is not, generally speaking, criminally responsible for the acts of his servants, unless he expressly command or personally co-operate in them. In criminal cases they must each answer for their own acts, and stand ur fall by their own behaviour (a). And where one employs another to do a thing and there are several ways of doing it, one criminal and another innocent, and he does it in a criminal manner, the employer is not responsible (/>). But where one man expresuly orders another to do an illegal act it is clear that the employer at least is accountable for that act(c). Whether or not the person employed is also criminally responsible must depend upon circumstances ( gave a forged note to a boy (who did Forgery. lot know that it was forged), and directed him to pay it away -R- y-GUcs. at N.'s shop for goods. The boy did so, paid the note to N. and brought back the goods and change to the prisoner. This was held by the twelve judges to be an uttering of the forged note by the prisoner to N. Again, where two dock porters stole a quantity of molasses, Receiving and by direction of H., a dealer in that article, took it to stolen goods. his warehouse and left it with M., who was H.'s servant, and ^- "■'■ ^"''''■ who knew it to be stolen : it was held that both the dealer and his servant might be convicted of receiving stolen goods, although the dealer was absent at the time the molasses was left at his warehouse, but it was clear that shortly after he came home, he was aware of the molasses having been left, and there was strong ground for supposing that he then knew that it had been stolen (h). So in a case (?) where B. was one of many persons employed Obtaining by a company, whose wages were paid weekly at a pay-table "a""g'^p,.t.^ by the treasurer of the company. On one occasion when B.'s tences. wages were due, the prisoner promised a boy a penny if he r. y, would go and get B.'s money. The boy innocently went to the Butcher. pay-table, and said to the treasurer, I am come for B.'s money, and B.'s wages were given him. He took the money to the prisoner, who was waiting outside, and gave him the penny : it was held that the prisoner might have been convicted on a count charging him with obtaining B.'s money from the trea- surer byialsely pretending to the treasurer (as he did by means of the boy) that the boy had authority from B. to receive his wages. Upon similar principles, a person who employed another to Accessory- harbour poachers, who were indicted for maliciously shooting at ^y ^'jj agent.' (/) R. V. Michael, 9 C. & P. New Rep. 90; S. C. 2 Leach, 356; S. C. 2 Mood. C. C. 120. 978; R. v. Brisac, 4 East, 104; And see R. v. Wilson, 26 L. J., R. v. Mazeau, 9 C. & P. 676 ; R. M. C. 18 ; 5. C. 1 Dears. & B. C. v. Clifford, 2 C. & K. 202. C. 127, causing poison to be {h) R. v. Parr, 2 Mood. & taken with intent to procure Rob. 34(5. abortion. (j) R. v. Butcher, 28 L. J., M. (g) R. V. Giles, 1 Mood. C. C. C. 14 ; S. C. I Bell Cr. C. 6. 16fc> ; and see R. v. Palmer, 1 176 master's liability to third persons, etc. JR. V. Jarvis. Stealing coal bj' hands of servants. B. V. Btcas- dale. Master not responsible v.- here an- other's neg- ligence added to his caused death. Servant, un- less innocent, is principal, and master m.'cessory lie Tore tlie f.-'Ct. Exceptions in caseo of iiiijilied orders of waster. Cases of libel. a keeper, was convicted as an accessory after tlie fact, though he himself did no act of relieving them (k). Again, wliei'e (/) the lessee of a coal-mine liad, from the shaft opened to work it, carried on extensive workings of coal, and by means of these workings had gotten coal belonging to about I'orty different proprietors, without their sanction or knowledge, and liad thus unlawfully possessed himself of 10,000/. worth of tlie coal of other persons (the eviilence e.xtended to the getting of coal continuously during a period of upwards of four years, and to operations conducted by dift'erent underlookers and by many different workmen) ; but it did not appear that the lessee had himself personally touched or removed any of the coal ; he was nevertheless convicted of stealing it {m) : Erie, J., observing, " The prisoner did not by his own hand pick or remove the coal ; but if a man does, by means of an innocent agent, an act which amounts to a felony, tiie employer and not the innocent agent is the person accountable for that act." But where a master was engaged in making fireworks ille- gally {I e. contrary to statute 9 & 10 Will. 3, c. 7, s. 1), some of which, in his absence, by an interveningf negligent act of his servant, exploded, and a rocket flew across the street, set fire to a house and burnt one of the inmates to death : it was held that the master could not be convicted of manslaughter, as it was the superadded negligence of some one else that caused the death (w). If the servant be not an innocent agent, he would, in law, be regarded as the principal oHender, and his master, if absent when the crime was committed, would be considered an acces- sory before tlie fact (o). Though this distinction now is prac- tically unimportant in punishing the master {p). There are, moreovei", many cases in which the act of the ser- vant, having been within the usual scope of his employment, has been considered to have been done by the implied command of the master, and he has been held criminally responsible for it, although he may, in the particular instance, have been perfectly ignorant of the doing it. Thus in cases of libel, previously to the statute 6 & 7 Vict. c. 96, the publishers and proprietors of newspapers and other publications were frequently held liable to criminal informations for libels published by their servants in the usual course of their employment, although such publishers and proprietors personally had nothing to do with the publica- (/f) R. v. Jarvis, 2 Mood. & Rob. 40. (/) R. v. Bleasdah, 2 C. & K. 765 ; see Michell v. Broivn, 28 L. J., M. C. 53, where it was held that the owner of a vessel might be convicted of throwing rubbish, &c., into a navigable river contrary to a statute, though not on board when it was done. (»«) Under 7 & 8 Geo. 4, c. 29, s. 37. {n) R. V. Bennett, 28 L. J., M. C. 27; S. C. 1 BellCr. C. 1. (o) R. V. Williams, 1 C. & K. 589. A person abroad may, by the employment as well of a con- scious as of an unconscious agent, render himself amenable to the law of England when he comes within the jurisdiction of our courts, per Lord Campbell in R. V. Garrett, 23 L. J., M. C. 23; S. C. 1 Dears. C. C. 241. {p) Supra, p. 174, note (e). IN CASES OF TORT— CHIMIN ALITER. 177 tion of the libels g). Evidence of publication by a servant, however, only aff'oi-ds ^pr'wid facie presumption of his master's guilt, which he may now rebut by provinj^ that such publica- tion was made without his authority, consent or knowledge, and did not arise from viant of due care and caution on his part(r). Again, in the following case, a man was held liable to an Action for action for penalties, through the act of one who was considered ^^"^ "'^''' his agent (s). An election was about to take place at C. ; S. was one oi^^operv. the candidates, and in his committee-room the question was "" ^' discussed whether paying the expenses of bringing up out- voters was legal. S., after referring to a law-book, said it was, but limited it to the payment of expenses out of pocket. A cir- cular had been previously prepared and printed, requesting out- voters to come up and vote for S. Upon S. making this decla- ration of his opinion, a clerk to an agent of S. (witiiout any express direction from S. or from the agent) wrote at the bottom of each circular, "your railway expenses will be paid." A voter who resided at H., received one of the circulars with this added note ; he came to C. and voted for S., and after- wards received 8s., the expenses to wlijch he had bond fide been put by his journey. It was held by the House of Lords, that the words added to the circular must be treated as written by authority of S., and that he was, therefore, liable to the penalties attached to bribery under the Corrupt Practices Prevention Act, 1854 (^). In giving judgment, Lord Weusleydale said, " I take the law to be clear, that a man cannot be guilty by his agent of an illegal act and be held responsible for that act, • unless he has given the agent authority, express or implied, to do that illegal act. I know that the law of agency in such cases has been much extended by committees of the House of Commons, but I take it to be a clear proposition of law, that if a man employs an agent for a perfectly legal purpose, and that agent does an illegal act, that act does not affect the principal unless a great deal more is shown : unless it is shown that the principal directed the agent so to act, or really meant he should so act or afterwards ratified the illegal act, or that he appointed one to be his agent to do both legal and illegal acts, to do every- thing in short which he might think proper to sup])ort_ the interests of the candidate. If the candidate gives his agent such a general authority, and the agent is guilty of briberj', the {q) R. V. Almon, 5 Burr. 2686; of the defendant or his servants. It. v. JValter, 3 Esp. 2\ ; R. v. see 6 & 7 Will. 4, c. 76, s. 8 ; Gulch, M. & M. 433, 438. As though that course may be to the liability of the editor to adopted, R. v. Baldwin, 8 A, & indemnify the proprietor when E. 168. fined for the publication of a (r) 6 & 7 Vict. c. 96, s. 7. libel, see Colhurn v. Patmore, 1 [s] Cooper v. Slade, 6 Ho. Cr. M. & R. 73. It is not neces- Lords Cas. 793. sary, now, in actions, prosecu- {t) 17 & 18 Vict. c. 102. Can- tions or other proceedings for didates may now provide con- libel contained in a newspaper, veyance for voters, 21 & 22 Vict to prove that it was purchased c. 87. I 5 178 MASTER S LIAJULIXy TO THIRD PERSONS, ETC. candidate is no doubt responsible for it. I know that there is a very great difference in parliamentary practice upon this subject, but I conceive that the rule of law is as I have laid it down, that no man icho is an agent for a legal purpose can viahe the prin- cipal responsible for an illegal act, unless the principal has in some way, directly or indirectly, authorized it, as I have explained." Informations So, also, masters have been frequently held liable to infor- for pena lies. jjjdtiQjjsJ'or penalties incurred by tlie breach of some statutory regulations by persons in their employ, although the masters themselves may have been perfectly ignorant that in the par- ticular instance any breach of the law has been committed. These infornmtions, it is true, do, in strictness, partake more of the natui'e of civil proceedings to recover that wiiich is a debt to the crown, than of a criminal proceeding (h), but still they are penal proceedings, and it is conceived therefore that they may be properly mentioned in this place. Perhaps the most familiar instances of the master's liability to this kind of proceeding are to be found in cases, of informations for breach of the revenue laws, in which cases if a master were not held responsible for the acts of his servants, the revenue laws might, as was once {.v) («) See per Bayley, B., in Attorney-General v. Siddon, 1 Cr. & J. 226 ; and see Jtclwson v. Everitt, Cowp. 391, that penal actions are civil suits ; and At- torney-General v. Botvman, 2 B. & P. 352, that witnesses to cha- racter are not admissible. Pre- vious to 17 & 18 Vict. c. 122, s. 15, it was doubted whether the defendant, in informations for penalties, was admissible as a witness under 14 & 15 Vict. c. 99, Attorney-General v. Rndloff, 10 Exc. 84; see now 18 & 19 Vict. c. 96, s. 36. But even now he is not admissible in informa- tions under the Customs Acts. See 20 & 21 Vict. c. 62, s. 14; see also Cattell v. Ireson, 27 L. J., M. C. 107; Attorney-General V. Le Merchant, 2 T. R. 201 ; Umcin v. Leaper, 1 M. & G. 752, where Bosanquet, J., says, " It has been decided to be an offence to compromise a penal action which had not actually been brought." (a ) Attorney-General v. Allen, Exch. Mich. Term, 1850. This criminal liability of a master for the acts of his servant in vio- lating the revenue laws, recently received a forcible illustration in the informations (understood to amount to 120 or upwards) filed against the London Dock Com- pany and the St. Katherine's Dock Company ; the alleged se- verity of which proceeding- pro- duced a large meeting of in- fluential merchants, &c., in the City of London, in December, 1851, at which a series of articles (as they were termed) were agreed upon, as the foundation of a pro- posed alteration in the law of customs. One of these articles, 7, was as follows : " Merchants, shipowners and others, should not be made responsible for the crimes or offences of their ser- vants or crews, except where guilty knowledge, or the most culpable negligence, is clearly traced home to them." In De- cember, 1852, a deputation from the Committee of London Mer- chants for Reform of Board of Customs waited on Lord Derby (then Prime Minister), with a memorial containing a series of resolutions, one of which (No. 10) was the same as article 7, above mentioned. And in the following year, by the Customs Consolidation Act, 1853," 16 & 17 Vict. c. 107, s. 213, power was given to the Commissioners of Customs to waive the forfei- IN CASES OF TORT— CRIMINALITER. 179 observed by Pollock, C. B., "be evaded with the utmost facility and impunity, and they would be reduced to a mere dead letter." In an old case in 'DyeT(y), it appeared that the deputy of a .4 non- customer in a creek of a port (in which case a deputy was ^2'«'"- to be made by the statute of the first year of Q. Eliz. c. 12 [c. 11, s. 8 J ), falsely concealed the custom of a merchant, and the customer himself, isnorant of this, certified by his oath the customs of the port into the exchequer, according to the false information of his deputy, and judgment was given for tlie^ Queen against the customer, who was held liable for the for- . feiture of the treble value of the merchandize so cus^omed,^ and to be fined and ransomed according to the statute 3 Hen. 6, c. 3. And in Lane v. Cotton (z), Holt, C. J., after cit'mg the above Lane v. case in Dyer, said, "And what is the reaso'.i thereof, but ^''"'°"- because the principal shall answer for his deput y." Again, where (a) an excise officer discovered on the defend- Attnmeii- ant's premises a quantity of tobacco, for wh'.ch he requested to ??"57i'^"'' see the permit, and the defendant's servarit said he had one, when in fact there was none, and ultimat'jly produced a permit for the removal of different tobacco, an d dated after the dis- covery by the officer, the defendant wris held liable to an in- formation for penalties, fi)r harbouring and concealing tobacco without paying duty, although at tho time of the discovery he was from home, and had been absen^^ for some time previously. In giving judgment, Bayley, B., sai d, " This is a case in which to my mind the act of the servant is to be considered as being an act done in the master's business, and within the scope of the authority probably given by the master to the servant. " This is not the ordinary case of a servant selling in his master's shop the articles in Avhich the master deals, in which it is quite clear that he is acting within the ordinary scope of the authority which he lias received from his master, and therefore that the act of the servant in making the sale is the master's act ; upon whicli principle all the cases of libel have gone (A). " Neither is this the case of an act done bj' a servant in the ^ manufacture of articles which the master is himself to manu- * facture. There the servant is merely acting in the business of " the master, and within the scope of the authority which he actually receives from his master. The authority which he receives from his master is an authority to make and manu- facture, and the master is responsible for his conduct, •prima, facie, as to the means he adopts in making and manufacturing. ture of ships or boats having dation Act, 1855," 18 & 19 Vict. prohibited goods on board, if c. 9(i, s. 26. satisfied that they were on board {y) ^tion. Dyer, 238 h. without the knowledge or privity (z) 12 Mod. 489. of the owner or master of such (a) 1 Cr. & J. 220; S. C. 1 ship or boat, and without any Tyr. 41 ; and see Attorney-Gene- . wilful neglect, or want of reason- ral v. Riddle, 2 Cr. & .J. 493. able care, on their parts. And (6) R. \. Almon, 5 Burr. 2686;- similar power is given by " The R. v. Gutch, M. & M. 433. Supiilemental Customs Consoli- 180 master's LIAlilLITY TO THIRD PERSONS, ETC. B.v. Dixon. B. V. Dean. " But this is a case certainly of a different description, and I agree witli the distinction tliat was taken when it was argued, that this does not fall within the ordinary range of the cases of a servant's act being the master's act. But in order to form a judgment whether this is the master's act or not, and within the scope of the authority which ought to be considered as given by the master to the servant, you must look at the nature of the act, and see with what view that act was done, and the partici- paTion which the master had in anything to which that act referred. " This is the case of a servant of a fraudulent master endea- vouring by his own act to conceal his master's fraud, and to prevent the consequences which would otherwise fall upon the master in respect of that fraud. From the nature of the service in which the party is employed, and from the conduct of the master in his fraud, you n.ay infer whether or no the servant liad prima facie an authority iVoni the master ; not perhaps specifically for the doing of this specific act, but for the pur- pose of doing that which, in the exercise of his discretion upon a moment of embarrassment, which the possession of an im- proper article might naturally create, the servant should think and deem to be best." The learned Baron then went through the facts of the case, which, in his opinion, iormeA prima facie evidence to show that the act of the servant was the act of the master, though, said he, " The master was certainly at liberty to have produced evidence for the purpose of rebutting that prima facie case, but in the absence of any evidence to rebut that case, it was rightly left to the jury, and the jury icere bound to consider it as being the master's act.'' So, where (e) a statute (rf) for regulating the making of bread, enacted, that if any of the loaves authorized by that act to be made, should have in them any alum, &c., " every person offending therein " should be liable to certain penalties: it was held, that a master baker was Wahh to an i?idictment for supply- ing loaves containing lumps of crude alum, though his foreman proved that he was the person who made the bread. And where a statute (e) imposed a penalty on every person who should be concerned in the unshipping of any goods, the duties for which had not been paid, it was held (f) that each partnering) of a firm, whose clerk had been guilty of a fraud by altering the blue book at the Custom House, (in which the amount of goods was entered for duty,) was liable to the penalty incurred through the act of their clerk, as they derived a benefit from his fraud, and produced no evidence to rebut the prima facie evidence of knowledge on their part which arose from that circumstance. (c) R. V. Dixon, 4 Camp. 12; S. C. 3 M. & S. 11 ; and see R. V. Bradley, 10 Mod. 156. (d) 36 Geo. 3, c. 22. (e) 3 & 4 Will. 4, c. 53, s. 44. 39. (g) It would have been otlier- wise had the penalty been at- tached to each offence, and not to each party concerned, ibid. ; and (/) R. V. Dean, 12 M. & W. see R. v. Clerk, Cowp. 610. IN CASES OF TORT — CRIMINALITER. 181 Afjain, masters are liable to indictments for public nui- Indictments ^ - ' - - for nui- sances. sances {h), such as carrying on offensive trades, committed by "^ ""*' their servants, although their masters have nothing to do per- sonally with the nuisance complained of. In such cases, also, if a master could shield himself from criminal responsibility on the ground that he personally had nothing to do with the car- rying on the trade, the real offender might escape with impu- nity, and the public grievance remain unredressed. It has indeed scarcely ever been contended, that the master, in such cases, was not guilty on the ground that the nuisance was per- petrated through the agency of others (?) ; and where that objection has been taken, it has been speedily overruled. Thus, in Rex \. Medley (k), the chairman, deputy chairman R.y- Medley. and other directors of a gas company, and several persons em- ployed by them in carrying on the works, were jointly indicted for a nuisance occasioned by conveying the refuse of the gas, &c. into the river Thames, whereby fish were destroyed, and the water rendered unfit to drink. On the part of the defend- ants it was contended that the directors of the company were not liable, as no criminal participation on their part, in the acts done by their workmen, was shown, and they did not even know what was done. But they were found guilty and fined, Lord Denman, C. J., saying it made no difference, that the directors were ignorant of what had been done, provided they gave authority to the manager to conduct the works. " It seems to me both common sense and law, that if persons for their own advantage employ servants to conduct works, they must be answerable for what is done by those servants." And again, where a railway company (I) was indicted for cut- R- v. Great ting through and obstructing a highway by works performed ^"J%°{i in a course not contbrniable to the powders conferred by the Act naiiwai/ of Parliament ; and one of the grounds on which it was argued Company. that the company was not liable to an indictment for a mis- feasance committed by their servants was tliat the individuals doing the act might be indicted and punished. Lord Denman said : " We are told that this remedy is not required because the individuals who concur in voting the order, or in executing the work, may be made answerable for it by criminal proceed- {h) In Turberville v. Stampe, 1 able result of the occupation, Lord Raym. 204, Holt, C. J., and the landlord receiving rent said, "If my servant throws dirt for that occupation. See, how- into the hiifhway, I am indict- ever. Rich v. Basterfietd, 4 C. B. able." See'l Bl. Comm. 431 ; 2 783. Noy's Maxims, c. 44; HalVs (/f) 6 C. & P. 292. Case, I Mod. 76 ; R. v. Cross, 3 (/) R. v. Great North of Eng- Camp. 224 ; Busli. v. Steinman, 1 land Railway Company, 9 Q. B. B. & P. 407 ; Reedie v. London 315. In R. v. Pease, 4 B. & Ad. and North- Western Railway Com- 30, some of the members of a pany, 4 Exc. 244. railway company were indicted (t) See R. v. Pedly, 1 A. & E. together with their servants for 822, where a landlord was lield a nuisance occasioned by the liable to be indicted for a nui- railway ; and see R. v. Scott, 3 sance committed by Ids tenants, Q. B. 543. such nuisance being the inevit- 182 master's liability to third persons, etc. Innkeeper's servant re- fusing to receive guests. As to ser- vant's lia- bility, post. When master exempt, on conviction servant. Fraudulent conviction quashed. R. V. Gill- yard. ings. Of this tliere is no doubt. But the public knows nothing of the former, and the latter, if they can be identified, are commonly persons of the lowest rank, wholly incompetent to make any reparation for the injury. There can be no effectual means for deterring from an oppressive exercise of power for the purpose of gain, except the remedy by indictment against those who truly commit it, that is, the corporation acting by its ma- jority ; and there is no principle which places them beyond the reach of the law for such proceedii)gs." Upon similar principles it is conceived than an innkeeper might be rendered liable to an indictment for a refusal by his servant to receive a guest into the inn, if it were within the scope of the servant's employment to receive guests(w); or a tenant (whose landlord had reserved the game) might be proceeded against under the Game Act (?i) if he employed another person to kill game (o). The master's liability to answer in a criminal suit for the act of his servant does not, however, by any means involve the exemption of the servant himself to aiiSwer criminally for his own acts. The question, however, as to how far the command of the master will justify the act of the servant will be more properly brought under consideration in a separate chapter. Since, however, this liability of masters to answer criminally of for the illegal acts of their servants, might occasionally operate hardly upon masters by putting it in the power of wicked ser- vants to subject their masters to penalties by their own wilful violation of the law, it is sometimes enacted, for the protection of masters, that servants ivil/ully transgressing the law shall themselves be subject to a penalty, and their master, upon con- viction of his servant, shall be exempt from further criminal liability (p). But where an act of Parliament, (q) which imposed various penalties on maltsters who should violate the provisions of the act, contained also a clause (r) for punishing, by summary proceedings before a magistrate, any workman, servant or labourer employed by or in the service of any maltster, who should, maliciously and with intent to injure such maltster, vio- late the provisions of the act ; with a proviso that the maltster himself should still continue liable to the penalties imposed for violation of the act, unless he should fortliwith prosecute such workman, &c. to conviction, and produce to the Commissioners of E.xcise a certificate of such conviction; and a maltster fraudulently procured the conviction of his servant for an (m) See R. v. Ivens, 7 C. & P. 213, where the master refused to receive the guest. And as to that case, see Fell v. Knight, 8 M. & W. 269. («) 1 & 2 Will. 4, c. 32. (o) See Spicer v. Barnard, 28 L. J., M. C. 176, which was the converse case ; the tenant was held not liable for his servant killing rabbits, as he had a right to do so himself, and " qui facit per alium, facit per se." (p) See, for instance, 7 & 8 Geo. 4, c. 52, s. 46 ; and see the provision in the Libel Act, 6 & 7 Vict. c. 96, s. 7, ante, p. 177. {q) 7 & S Geo. 4, c. 52. (r) Sect. 46. IN CASES OF TORT— CIVILITER. 183 offence under the act, with a view to protect himself from pro- ceedings for the same offence, the Court of Queen's Bench granted a certiorari to remove, and quashed the convic- tiorf (s). And as the liability of a master to answer criminally for the Master only acts of his servants presupposes, and is in fact founded upon, the s^^r'^va^^"'^- violation of some public duty legally binding upon the master, m its breach it can, of course, only exist where such duty exists, and must of apubiic cease when such duty ceases to be binding. And, therefore, on his"" '"^ where a vessel was sunk by accident in a navigable river, and master, without any default on the part of the owner or his servants, as R. v. Watis. the law does not ordinarily cast upon the owner of a vessel sunk under such circumstances the duty of using any precau- tion, by placing a buoy or otherwise, to prevent other vessels from striking against it, it was held that the owner was not liable to an indictment, or to an action at the suit of a party sustaining injury in consequence of a collision with the sunken vessel, for omitting to remove it or take precautions to prevent accidents (t). IN CASES OF TORT— CIVILITER. A master is ordinarily liable to answer in a civil suit for the Master gene- tortious or wrongful acts of his servant, if those acts are done in '^'''''y ^'B\>\e the course of his employment in his master's service (m). The servant. maxims applicable to such cases being Respondeat superior, and that before alluded to, Quifacit per aliam,fucit per se. This rule, with some few exceptions, which will be hereafter pointed out, is of universal application, whether the act of the servant be one of omission or commission, whether negligent, fraudulent or deceitful, or even if it be an act of positive malfeasance or misconduct ; if it be done in the course of his employment, his master is responsible for it ciinlit er io third persons (x). And it makes no difference that the master did not actually autho- rize or even know of the servant's act or neglect, for even if he (s) R. V. GUI yard, 12 Q B. indictment which did not allege 527. a duty in him which he had neg- {t) R. V. IFafts, 2 Esp. 675 ; lected to perform, see Parrtahy v. Lancaster Canal (tc) By the civil law tlie Company, l\ A. Si E. 223; Rrotvn liability was confined to the V. Mallett, 5 C. B. 599 ; Hancock person standing in tlie relation V. The York, Newcastle and Ber- of paterfamilias to the wrong- wick Railway Company, 10 C. B. doer, Dig. lib. 9, tit. 3. But by 348; White v. Crisp, 10 Exc. the English law the liability is 312 ; Metcalfe v. Hetherington, more extensive. 11 Exc. 257; Gihbs v. Liverpool (j) Story on Ag. 452; Paley Dock Trustees, 2fi L. J., Exc. 109; on Ag. 294, 298, and cases there S. C. 1 H. & N. 439; S. C. in cited; Pothier on Oblig. by error, 27 L. J., Exc. 321 ; 3H.& Evans, No. 45() ; see also the N. 164. And see R. v. Barrett, cases ched post, and Philadelphia 2 C. & K. 343, where it was held and Reading Railroad Corporation that an engineer could not be v. Derby, 14 Howard's (Amor.) convicted of manslaughter, on an Rep. 468. 184 master's liability to third persons, etc. Michael v, Alestree. Jones V. Hart. disapproved of or forbad it he is equally liable if the act be done in the course of tlie servant's employment (?/). And it is but reasonable tlmt it should be so, for surely it is more just that he who selects a person as his servant, from a knowledge of or belief in his skill and care, and who can re- move him for misconduct (z), and whose orders that servant is bound to receive and obey, should suffer for the misconduct of that servant, than that an innocent third- person, who liad not the opportunity of selection, or the power of removal and enforc- ing obedience to his orders, should be prejudiced by such mis- conduct. Accordingly, numerous instances occur in which this prin- ciple of holding the master responsible civiliter for the tortious acts of his servants, has been acted upon and enforced (a). Thus, where (Z*) the servants of A. brought a coach with two ungovernable horses into Lincoln's Inn Fields, to train them, and they being not to be managed ran upon the plaintiftj the master was held liable for the damage occasioned. So where (c) a pawnbroker's servant took a pawn, and when the pawner came and tendered the money to the servant, he {jy) So a landlord is liable for the acts of his broker, Freeman v. Rosher, 13 Q. B. 780 ; Gaiuitlett v. King, 3 C. B., N. S. 59. So a client is liable for the tortious act of his attorney in the conduct of a suit, and cannot shield himself from responsibility by ignorance of a ])articular act, nor under the principle hereafter noticed, that a person who employs aeon- tractor is not liable for the acts of the contractor's servants, Cnl- leit v. Foster, 28 L. J., Exc. G12. In that case, Bramwell, J., ex- pressed a great desire to limit the doctrine of respondeat supe- rior, and to make the actual wrongdoer alone responsible. («) The mere power of re- moval, apart from the power of original selection, will not render the person who has it liable for the acts of persons whom he has power to remove, if they are not his servants, Reedie v. London and North- West- ern Railway Company, 4 Exc. 244' ; and see Chilcot v. Bromley, 12 Ves. 114; Kelly \. Mayor, ^c. of New York, 1 Kernan's ( Amer.) ilep. 432. (a) Whether the act com- plained of amount to a misfeas- ance, negligence, or omission of duty is obviously a question of fact, and must in each case de- pend upon the particular circum- stances of the case. See Crofts V. Waterhouse, 3 Bing. 319. The Judge at Chambers has a discretion as to granting an order for particulars of the plaintiff''s claim, but as a general rule not to be departed from without grave reasons, will not grant one in an action for " running down" by defendant's servants. Weeks V. Macnamara, 3 H. & N. ofiS. (i) Michael v. Alestree, 2 Lev. 172. In this case the action was brought against both master and servant; but it is better generally to sue only the master ; Whitamore v. Waterhouse, 4 C. & P. 383 ; see also Parsoni, V. Winchell, 5 Cush. (Amer.) Rep. 592. Except, perhaps, in a case like Stevens v. Midland Railway Company, 10 Exc. 3-52, where the action failed against the master, but succeeded against the ser- vant. (c) Jones v. Hart, 2 Salk. 441 ; Gary v. Webster, 1 Str. 480 ; Mead v. Hamond, Armory v. Delamirie, 1 Str. 505. IN CASES OF TORT — CIYILITER. 185 said he had lost the goods, the master was held h'ahle in trover. So where the servants of A., Avith his cart, ran against anotI)er cart, wherein was a pipe of sack, and overturned the cart and spoiled the sack, it was held that an action lay against A. And so where (d) a carter's servant ran his cart Negligent over a boy, it was held the boy should have his action against ^g^^^f ^^ the master for the damage he sustained by this negligence. In fact actions against ijiasters for damages sustained by the negli- gent driving of their servants are so common, that it is unneces- sary to multiply instances of the masters' liability in such cases. Again, where (e) the defendant's servants so negligently kept Servant ajii'e lighted in liis field, that it extended to and consumed the negligently heath of the plaintiff, the defendant was held liable to an action '°^""^ '^^• for the injury, and Lord Holt observed, " If the defendant's sZtpe.'"^^' servant kindled the fire in the way of husbandry and proper for his employment, though he had no express comnjand of his master, yet his master shall be liable to an action for damage done to another by the fire, for it shall be intended that the servant had authority from his master, it being for his master's benefit." Actions against carriers, whether bj^ land(/) or wa- Actions (d) Jones v. Hart, nhi supra. (e) TurbervHle\. Stampe, Lord Raym. 264; S. C. 1 Salk. 13; 1 Comyns' Rep. 32. And see Beaulieu v. Fhii^lam, 2 H. 4, fo. ]8, pi. 6, cited ^1 C. B. 586, note. But see also Macl-enzie v. M'Leod, 10 Bing. 385, post. A person on whose property a fire acci- dentally begins is not now liable to an action at the suit of any person who may be injured thereby ; see 6 Ann. c. 31, s. 6; 12 Geo. 3, c. 73; 14 Geo. 3, c. 78, s. 86; 7 & 8 Vict c. 84, s. 1, and Schedvile A., which acts are general law ; Richards v. Easto, 15 M. & W. 251 ; S. C. 3 D. & L. 522. But where a fire is caused, or having been knowingly lighted is permitted to extend, % negligence, the master is still liable, Filliter v. Phippard, 11 Q. B. 347. And see instances of actions against railv.ay companies for negligent management of their engines by their servants, whereby sparks flew out and caused fire. Ald- ridge V. 7 he Great Western Rail- way Company, 3 M . & G. 5 1 5 ; Piggott V. Eastern Counties Rail- way Company, 3 C. B. 229 ; Vaughan v. Tuff Vale Railway Company, 3 H, & N. 743 ; S. C. 28 L. J., Exc. 41. (/) By the Carriers Act, 11 Geo. 4 & 1 Will. 4, c. 68, and The Railway and Canal Traffic Act, 1854, 17 & 18 Vict. c. 31, s. 7, the liability of carriers by land is limited in certain cases. But by sect. 8 of the first-mentioned Act, it is provided, " That nothing in that Act shall be deemed to pro- tect any mail contractor, stage- coach proprietor, or other com- mon carrier for hire, from liability to answer for loss or injury to any goods or articles whatsoever arising from the felonious acts of any coachman, guard, book- keeper, porter, or other servant in his or their employ, nor to protect any such coachman, guard, book-keeper, or other servant from liability for any loss or injury occasioned by his or their own personal neglect or misconduct." Felony by the car- rier's servant is, therefore, a good answer to a defence under the Carriers Act. But mere sus- picion is not enough, there must be evidence of felony sufficient to convict a servant of the car- rier. See llinton v. Dihliin, 2 Q. B. 616; Butt v. Great Western Railway Company, 1 1 C. B. 140; Great Western Railway Company 186 master's liability to third persons, etc. against car- riers of goods, and passen- gers. ter (_//), for loss or injury to goods intrusted to tlieir care, also frcqiieutly involve a similar principle, since carriers are generally answerable for the honesty of their servants (A). A carrier, lio\vev(!r, is not answerable for loss of luggage entrusted to his servant to carry for Ids own private gain (t), or in defiance of a known course of business (A). Nor is a railway company liable for injuries arising from negligence of their servants, if by a special contract entered into by the consignor, all risk of damage, from whatever cause, is agreed to be borne by the consignor (Z). But they may be liable even for such damage apparently excepted by the special contract, if suck damage is caused by the gross negligence of their servants in stowing the goods (???) ; o" since 17 & 18 Vict. c. 31, the Rail- M'ay and Canal Traffic Act, if the court or judge trying the cause shall be of opinion that under the circumstances the con- ditions of the special contract exempting them from liability are unjust and unreasonable {n). Again, carriers have been held liable for goods delivered to their servant, notAvithstanding a bye-law that they would not be liable unless booked, in the absence of evidence that they had provided means of book- Carriers of passengers also are responsible for injuries hap- pening to them through the misconduct {p) of their drivers and \. Rimmell, 18 C. B. 575; S. C. see M'Manns v. Lancashire and 27 L. J., C. P. 201 ; Metcalfe v. London and Brighton cfc- Com- pamj, 27 L. J., C. P. 205, 333. (g) See the Railway and Canal Traffic Act, 1854, 17 & 18 Vict. 0. 31. By the Merchant Sliipping Act, 1854, 17 & 18 Vict. c. 104, s. 502, et seq., the liability of shipowners is limited in certain cases to the value of the ship and freight. See Brown v. Wil- kinson, 15 M. & W. 391 ; Ley- cester v. Logan, 26 L. J., Ch. 306; Cope v. Doherty, 27 L. J., Ch. 600. {h ) Sub-contractors' servants are "servants in the employ" of the carrier within s. 8 of the Carriers Act, supra, note ( / ) ; Machii V. South- Western Railway) Company, 2 Exc. 415; and see Crouch v. Great Western Railway Compani/, 26 L. J., Exc. 418, 422. (?) Butler v. Basing, 2 C. & P. 613. (/f) Slim V. Great Northern Railway Company. 14 C. B. 647. {I) Austen v. Manchester, ^c. Railway Company, 10 C. B. 454; Carr v. Lancashire, ^-c. Railway Compayiy, 7 Exc. 707 ; Phillips v. Edwards, 28 L. J., Exc. 52. But Yorkshire Railway Company, 28 L. J., Exc. 353, where such a provision was held unreasonable. As to a railway company limit- ing their liability to their own line, see Fowles v. Great Western Railway Company, 7 Exc. 699. (m) Phillips v. Clark, 26 L. J., C. P. 168. (n) M'Manus\. The Lancashire and Yorkshire Railway Company, 28 L. J., Exc. 353. (o) Great Western Railway Company v. Goodman, 12 C. B. 313; Williams v. Great Western Railway Company, 10 Exc. 15. (p) White V. Boulton, Peake, 81. See generally on this sub- ject, Selw. N. P. tit. "Carriers ;" and see Ross v. Hill, 2 C. B. 877 ; 5. C. 3 D. & L. 788, where a cab proprietor was held liable for the loss of a passenger's lug- gage, through the negligence of the driver ; ace. Powles v. Hider, 6 E. & B. 207 ; S. C. 25 L. J., Q. B. 331. See also Williams V. Cranston, 2 Stark. 82, where a plaintiff, suing the servant, was nonsuited, on the ground that he ought to have sued the master ; Cavenagh v. Such, 1 Price, 328, ace. IN CASES OF TORT — CIVILITER. 187 servants (5'), but not of course if such injury happen by acci- dent (/•). Wliether or not the injury complained of in any par- ticular case arose from the negligence of servants, or was the effect of accident, would be a question proper for the considera- tion of a jury (*■). Actions against railway (/) and steam packet (u) companies, also necessarily involve similar principles, as such companies can only act through the instrumentality of servants (:r). Where (y) tiie owner of a boat, which was accustomed to ply Invasion by for hire and cany passengers across a haven, employed a ser- rfJht to ferry, vant for tliat purpose, and the servant on one occasion received jj^^^^, ^ a passenger on board, and carried him across the haven near Field. {q) A railway company, issu- ing a through ticket over its own and other lines, is liable to a passenger taking such ticket for negligence on another line, not a portion of theirs, see Birkttl v. The Jf'hitehaveTi Junctivti Railway Company, 28 L. J., Exc. 348 ; Myttoji v. The Midland Railway Co., 28 L. J., Exc. 385. This is on die ground that the contract to carry was made with tliem. (r) Crofts v. Waterhouse, 3 Biug. 321 ; Bradley v. Water- house, M. & M. 154. («) See Briddon v. Great North- ern Railway Company, 28 L. J., Exc. 51, where a train was de- tained by snow. {t) Such as Muschamp v. Lan- caster and Preston Junction Rail- way Company, 8 M. & W. 421 ; Crouch V. North- Western Railway Company, 2 Carr. & K. 789; Smith V. Brighton Railway Com- pany, 7 C. B. 782 ; Richards v. The Same Company. 7 C. B. 839; Chilton V. Croydon Railway Com- pany, 16 M. & W. 212; Eastern Counties Railivay Company v. Broom, 6 Exc. 314; Great North- ern Railway Company v. Sliepherd, 8 Exc. 3(1; Butcher v. South- western Railway Company, 16 C. B. 13; Stevens v. Midland Rail- way Company, 10 Exc. 352 ; Whitfield V. South- Eastern Rail- waif Company, 27 L. J., Q. B. 229; .V. C. 1 E. B. & E. 115. As to liability of railway com- pany for negligence of their ser- vants where danuige arose through defective fences, see Midland Railway Company v. Daykin, 17 C. B. 126; see also Giles V. Taff Vale Railway Com- pany, 2 E. & B. 822. {u) Fenton v. City of Dublin Steam Packet Company, 8 A. & E. 835 ; Bennett v. Peninsular and Oriental Steam Navigation Company, 6 C. B. 775. {x) And see Maund v. The Monmouthshire Canal Company, 4 M. & G. 452, where the defend- ants were held liable in trespass for the act of their servant. In Cldlton v. Croydon Railwai/ Com- pany, 16 M. & W. 212, and East- em Counties Railway Company v. Broom, 6 Exc. 314, it was held that railway companies might be liable to an action of trespass for an assault committed by their servant. See also Whitfield v. South- Eastern Railway Company, 27 L. J., Q. B. 229; S. C. 1 E. B. & E. 115 ; Green v. London General Omnibus Co., 29 L. J., C. P. 13; and the American cases of Moore v. Fitchbourg Rail- road Corporation, 4 Gray, 465 ; The Philadelphia, Sfc. Railroad v. Quigley, 21 Howard's Rep. 202. (//) Huzzey v. Field, 2 C. M. & R. 432. Where the lessee by parol of a ferry, finding it did not answer, agreed to become servant to the lessor and account to him for the profits of the ferry, his interest as tenant was lield to have been surrendered by opera- tion of law, Peter v. Kendal, 6 B. & C. 703. In Blackwell v. Wiswall, 24 Barbour's (Amer.) Rep. 355, the lessor of a ferry was held not liable for the acts of lessee's servants. 188 master's liability to third persons, etc. Fraud of servant. Servant enabled to commit fraud by master's negligence. Master's liabilitj' ex- tends to per- sons not im- mediately employed by m , i f they e his servants. the line of an ancient_/er/;y, and paid the fare over to his mas- ter, it was lield that tlie servant was acting at tht time in the course of his master's service, and fur liis master's benefit, and the master was answerable for his act, and would have been liable in an action on the case for such act, if it had been dis- tinctlj' proved to have amounted to an invasion of the ferry. ^ And a master is liable for t\\e, fraud of his servant, committed in the coarse of his master's business, and within, but, as we shall hereafter see, not beyond the scope of his autliority. Thus, if a goldsmith make plate, wherein he mingles dross, so that it is not according to tlie standard, and send his servant to a fair to sell it, who sells it for good plate according to the standard, an action upon the case lies against the master (z). Upon this principle an attorney has been compelled by the court to pay costs occasioned by his cierk fraudulently simu- lating the seal of the court, upon a writ (a), Jervis, C. J., re- marking, " There are many acts of a servant for which, though criminal, the master is civilly responsible by action." It has, however, been held in the House of Lords (Jj), that negligence of trustees of a corporation, in leaving the corporate seal in the hands of the secretary, whereby he was enabled fraudulentlj' to affix it to five powers of attorney for the transfer of stock belonging to the corporation, did not prevent them from saying that the powers of attorney were forged, and suing the Bank for not transferring the stock on their subsequent application. In giving the opinion of the judges to the House of Lords in that case. Lord "Wensleydale said, " If a man should lose his cheque book, or neglect to lock the desk in which it is kept, and a servant or stranger should take it up, it is impos- sible, in our opinion, to contend that a banker paying his forged cheque would be entitled to charge his customer with that pay- ment. Would it be contended that if he kept his goods so negligently that a servant took them and sold them, he must be considered as having concurred in the sale, and so be disentitled to sue for their conversion on a demand and refusal." Tlie rule that a master is responsible for the acts of his servants applies, not only to domestic servants who may have the care of carriages, horses and other things in the employ of the family, but extends to other servants whom the master or o« ner selects and appoints to do any work or superintend any business, although such servants be not in the immediate em'^loy or under the superintendence of the master. As, for instance, if a man is the owner of a ship, he him£elf appoints the master, and he (s:) Southern v. How, Cro. Jac. 471 ; and see Grammar v. Nixon, 1 Sir. 053 ; Hern v. Nicholls, 1 Salk. 289 ; Cornfoot v. Fowke, 6 M. & W. 358; Fuller v. Wilson, 3 Q. B. 58 ; Jones v. Downman, 4 Q. B. 235, note ; Downman v. Williams, 7 Q. B. 103 ; Watson v. Earl Charlemont, 12 Q. B. 856 ; Coleman v. Riclies, 16 C. B. 104 ; Ranger v. Great Western Railway Company, 5 Ho. Lords Cases, 72 ; Re British Bank, 28 L. J., Ch. 257 ; Story on Ag. s. 264. As to the master's liability to an action on the warranty, see ante, p. 161. (a) Dunkley y. Ferris, 11 C. B. 457. (b) Bank of Ireland \ . Trustees of Evans' Charities, 5 Ho. Lords Cas. 389. The secretary had been convicted of the forgery. IN CASES OF TORT — CIVILITER. 189 desires the master to appoint and select the crew ; the crew thus become appointed by the owner, and are his servants for the management and government of tlie ship, and if any damage happens through tlieir default, it is tlie same as if it happened through the immediate default of the owner himself. The same principle prevails if the owner of a farm has it in his own hands, and does not personally interfere in the management, but appoints a bailiff or hind who hires other persons under him, all of them being paid out of the funds of the owner and selected by himself, or by a person specially deputed bj'^ him ; if any damage happen through their default the owner is an- swerable, because their neglect or default is his, as they are appointed by and through him (c). So in the case of a mine, the owner employs a steward or manager to superintend the working of the mine, and to hire under- workmen, and he pays them on behalf of the owner. These under- workmen then be- come the immediate servants of the owner, and the owner is answerable for their default in doing any acts on account of their employer (rZ). Upon this principle it was that the defendant was held liable Wayimid\. in Waylund v. Elhins (e) for damage done to the plaintiff's house •^'*""- by a waggon being driven against it. The defendant and one D. were carriers from London to Gosport, and by an arrange- ment between them D. horsed the waggon from London to Farnham, and the defendant then conducted it from Farnham to Gosport. At the time the mischief happened the waggon was drawn by D.'s horses, and was driven by a servant of D. who had been hired by and received his wages from D., and with whose employment the defendant had no concern what- ever, but the watigon was the property of the defendant; and Gibbs, C. J., held that the action might be maintained " upon this principle : the waggon belongs to Elkins, and he receives the profits derived from the use of it. On what terms he en- gages with D. we do not know, but being jointly entitled with D., and since it is no objection that D. had not been joined, the case is the same as if Elkins had received all the profits. Then since the waggon was to be drawn for the benefit of Elkins, the servant to all legal purposes was the servant of Elkins, although for inferior purposes, and as between the parties he may be considered as the servant of D." To the same principle may also be referred the case o( Ran- Randicson v. dleson v. Murray (/"), though that case is sometimes placed ■^^"'■'""j- (c) See R. v. Hoseason, 14 bailiff employed under him to East, 605. superintend the works. The {d) Per Littledale, J., in action should have been against Laugher V. Pointer, 5 B.ScC. SBi'; the infant; and see R. \. Bleas- and see per Mullett, J., in Blake dale, 2 Carr, & K. 7G5, ante, p. V. Ferris, 1 Seld. (American) 176. Rep. 58. In Stone \. Cartwright, {e) 1 Stark. 272; S. C. Holt, 6 T. II. 411, it was held thatthe 227. See the Reporter's note at agent of a colliery, belonging to the end of the latter report, an infant, who was appointed (/) 11 A. & E. 109. It may manager by the Court of Chan- well be doubted bow far this case eery was not liable for damage would be supported now. caused by colliers hired by a 190 master's liability to third persons, etc. IVaiistall V. Piioleii. Masterliable, though act of servant not necessary for proper per- formance of liis master's oi'ders. with a difForent class of cases, those namely in which an owner of" fixed proficrty lias l)een held responsible for the acts of per- sons not strictly speakinj^ his servants (<;). In that case the defendant, wlio was a warehouseman at Liverpool, hnd employed a master porter to remove some barrels of flour from his ware- house. The master porter used his own tackle, and brought and paid his own men, but employed a master carter to carry the barrels away, and the master carter brouq:ht his own carts and men, one of whom was the plaintiff. The master poi-ter's tackle failed whilst being used by his men, a barrel fell and injured the plaintiff, and tiio defendant was held liable for the damage, on the ground that the men were in point of law his servants (h). ^ And so where a corn-factor was absent from his shop, and, during his absence, his sister managed his business ; she wanted to send out some corn to a customer, and for this purpose em- ployed a person who occasionally worked for her brother, and who at the time of such emjjloyment was in a state of inebriety. This man, contrary to tbe practice of the corn-factor's shop, took out the corn on a small warehouse truck, which he negli- gently left on the road, whereby a person driving along in a chaise was injured : the corn-factor was held liable in an action at the suit of this person {i). Upon this principle in America a railway company has been held liable for the acts of a contractor for a portion of their line, where in blasting rocks, pursuant to the contract, a stone was thrown upon and injured the plaintiff (/i). And if a servant is acting in the execution of his master^ s orders, and by his negligence causes injury to a third party, the master will be responsible, although the servanfs act was not necessary for the proper performance of his duty to his master, or was even contrary to his master's orders. Upon this subject nice questions often arise as to how far the servant loas acting in his master's service at the time the injury was done : thougii the law is clear, it is sometimes difficult of application to particular cases. It is well illustrated by the following cases, in which the master was held liable. In an action (Z) for the negligent driving of the defendant's {g') As to those cases, see Reedie v. London and North- West- ern Railway Conrpnny, 4 Exc. 244, post, pp. 201, 207. {h) A. and S. sold to P. a box in the loft of their store, and P. promised to send his porter for it. He did so, and, by permission of A. and S., the porter went up into the loft, and proceeded to lower the box by means of tackle belonging to A. and S. The box fell and injured the plaintitf : it was held in America that A. and S. were not liable. Stevens v. Armstrong, 2 Seld. 435 (1852). (i) Wanstall v. Pooley, Q. B. M. T. 1841, 6 CI. & F. 910, n. (/,-) Stone v. Cheshire Railroad Corporation, 19 New Hampsh. Hep. 427 ; Lowell v. Boston and Lowell Railroad Corporation, 23 Pick. 24. (/) Croft v. Alison, 4 B. & Aid. 590. In Welsh v. Lawrence, 2 Chit. 262, evidence that the chainstay of a cart broke, in con- sequence of which the horse ran away and plaintifPs horse was injured, was held to support an action for negligent driving by defendant's servant, as the master is bound to have good tackle. IN CASES OF TORT — CIVILITER. 191 coachman, whereby the plaintiff's carriage was upset : it ap- strikinc: peared that the accident arose from the defendant's coachman another per- ',■, ■ ,, , . .,p, , • , , • I • • „ sons horses striking tlie plaintm s horses with his whip, in consequence ot whilst driving which they moved forward, and the chariot was overturned, his master. At the time when the horses were struck the two carriages Croft v. were entangled. The defendant was held liable for the damage ^'"'''"• caused by his servant's act, although wanton, as it was done in pursuance of his employment. A\m\, per Curiam : "The dis- tinction is this; if a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another person, and produce the accident, the master will not be liable. But if, in order to perform his master's orders, he strikes but injudiciously, and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant's employment." So, if a coachman were driving his master, and were ordered Coachman not to drive so fast, but he nevertheless continued to do so, driving too and an accident occurred in consequence, the master would be '''' ' responsible for tlie injury ; for in that case the coachman would still be di'iving^br Jus master, though driving badly {m). So a master was held {n) liable for damage caused by the Servant negligent driving of his cart in the city by his servant, although makin;,' de- it was proved that tlie cart ought not, in carrying out his orders, master's cart. to have been in the city at all ; and Lord Wensleydale said : — j^^^ ^. " If the servant, being on his master's business, took a detour Murison. to call upon a friend, the master will be responsible. If you think the servant lent the cart to a person who was driving without the defendant's knowledge, he will not be responsible. ' Or if you think that the 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 mas- ter's implied commands, \\hen 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 liable." Again, a master was held (o) liable for damages caused by sieath v. the negligent drivins^ of his servant, who, after having set his Wilson. master down, drove round to deliver a parcel of his own, and did not drive directly wliere he was ordered to go, Erskine, J., saying : " Evidence has been given that the master directed the servant to drive to the Red Lion, in Castle- street, but that the (m) 7 M. & G. 566 ; see Sleuth happened ; Lord Abinger saying V. Wilson, 9 C. & P. 612. he thought that as the defend- (n) Joel v. Morison, 6 C. & P. ant's servant was in the cart, the 501. And see Bootli \. Mister, 7 reins being held by another man C. & P. 66, where a master was made no difference. See also lield liable for damage caused Wheatley v. Patrick, 2 M. & W. by his cart, which was entrusted 650. to his servant, but which another (o) Sleath v. Wilson, 9 C. & P. person, a friend of the servant, 607 ; S. C. nomine Heath v. Wil- was driving when the accident son, 2 M. & Hob. 18L 192 master's liability to third persons, etc. Patten v. Hea. Master liable though injury imme- diately caused by stranger. Illidge v. Goodwin. Extent of masters liability. servant improperly drove to the Old Street road to deliver a parcel of his own ; and tlie point has been put to the Court tiiat, inasmuch as it is clear that the servant was not at that time engaged in iiis master's business, this action cannot be maintained. But I am of opinion that this action may be maintained. I tliink the law lias been most properly laid down by Mr. Baron Parke in the case which has been cited (p). It is quite clear that if a servant without his master's knowledge takes his master's carriage out of the coach-house, and with it commits an injury, the master is not answerable, and on this ground, that the master has not entrusted his servant with the carriage. But lohenever the master has entrusted the servant icith the control of the carriage it is no answer that the servant acted improperly in the management qfit{q)." Where the general manager of the defendant, a horse-dealer. Lad a horse and gig of his own, which he used for the defend- ant's business as well as his own, and was allowed to keep them on defendant's premises at his expense; and on one occasion the manager, on putting the horse into the gig, told defendant he was going to S. to collect a debt for him and afterwards to see his own doctor, and before he got to S. he ran the gig against and killed the plaintiff's horse ; it was held that there was abundant evidence to make the defendant responsible, although he had not expressly requested the manager to use the horse and gig on that occasion. And it was also held that the proper question to leave to the jury, is, whether at tlie time of the act complained of, the servant was driving on his master's business and with his authority (?•). And a master has been held liable for damage done to a third person which would not have happened but for the negligence of the defendant's servant, although the immediate cause of the damage was a stranger. Thus, a master scavenger was held liable for injury caused by the negligence of his servant in leaving his cart and horse un- attended in the street, although the immediate cause of the injury was a passer-by who struck the horse, which backed the cart into the plantiff's shop-window (s). In that case it was a misfeasance to leave the horse unattended {t). Moreover a master is, generally speaking, liable for all the consequences arising from the misconduct of his servant, where an injury arises to a third person from such misconduct : though Pollock, C. B., entertains considerable doubt whether a man is responsible for all the />o.«siiZe consequences that may, under any circumstances, arise in respect of mischief which by no possibi- {p) Joel V. Morison, ubi supra. (q) So a landlord is liable for any irregularity committed by a broker whom he has authorized to distrain, if the broker has dis- trained the right goods, although the irregularity be committed without the knowledge or sanc- tion of the landlord, Haseler v. Lemoyne, 28 L. J., C. P. 103. But not if he distrain the wrong goods, Lewis v. Reed, 13 M. & W. 834 ; or things not distrain- able, Freeman v. Kosher, 13 Q. B. 780. (r) Patten v. Rea, 2 C. B., N. S. (i06 ; S. C. 26 L. J., C. P. 235. («) Illidge V. Goodwin, 5 C. & P. 190. (0 See 3 E. & B. 153. IN CASES OF TORT — CIVILITER. 193 lity could he have foreseen, and whicli no reasonable person, under any circumstances, could be called upon to have antici- pated {t}. A master, however, is not responsible for the wrongful act of Master not his servant unless that act be done in the execution of tiie autho- {^^^^"rf/i'Jf'p rity given by his master (;<). Beyond the scope oj his employ- acts beyond ment he is as much a stranger to his master as any third person, scope of his and, therefore, his act cannot be regarded as the act of his ^^ °" ^' master. Upon this principle it was held, in M^Kenzie v. M^Leod (.r), M'Kenzie v. that a master was not liable for the act of his housemaid in ^'l'^"^- lighting furze and straw with a view to clean a cliimney which smoked, whereby the house was burnt down, as she was merely employed to light the fire, and others were einployi'd to clean the chimney, and, moreover, she had been expressly cautioned not to attempt to clean the chimney in that way ; the court con- sidering that in acting as she did she was acting beyond the scope of her employment, which was merely to light the fire. Again, in Lyons v. Martin (y), a mastiM- was held not liable Lyons v. for an unlawful act committed by his servant, wlio was autho- "'■**"• rized to distrain cattle damage feasant on his land, in driving the plaitifijf's horses, which were on the highway, 07i fo his master's land and then distraining them, as the doing so was not within tlie scope of his authority ; and Patteson, J., said, " A master is liable where his servant causes in-ury by doing a lawful act negligently, but not where he tcilfully does an illegal one." So if a man sends his servant on an errand without providing Goodman t. him with a horse, and he meets a friend who has one, who per- •^«»"«"- mits him to ride, and an injury happens in consequence, the master is not responsible for that act. If it were so, every master might be ruined by acts done by his servant without his knowledge or authority (2).'! And where (a) the plaintiff's van, which had brought mineral Lamb t. water to the back entrance of the plaintiff's premises, was un- ^°'*" loading, and the plaintiff's gig standing behind it, when the defendant's coachman, with a carriage and pair of horses, came up from the mews into the street, and the carriage being unable to pass the van for want of room, was obstructed for five minutes, when the defendant's coachman got off his box and took hold of the head of the horse which was in the van, in order to remove the van, this caused the van to move, and a case of mineral water that a person was taking from the van fell down on the shafts of the plaintiff's gig, and broke them : it was held that the defendant was not responsible for the damage done, as {t) Greenland v. Chaplin, 19 L. ard, 8 Bing. 451, ante, p. 163. J., N. S., Exc. 293; see Rigby v. (j) 10 King. 385. Hewitt, ib. 291. (2/) 8 A. & E. 512. (u) Middleton' v. Fowler, 1 («) Goodman v.Kennell, 3 C, & Salk. 282; Croft v. Alison, 4 B. P. 167. & Aid. 590 ; Lamb v. Pallc, 9 C. (a) Lamb v. Lady Elizabeth & P. 629 ; M'Manus v. Crickelt, Palk, 9 C. & P. 629. 1 East, 106 J see Garth v. How- 194 MASTER S LIABILITY TO THIRD PERSONS, ETC. Mitchell V. Crasswetler, Wright v. Wilcox. Grant v. Norway. Coleman v. Riches. the coachman was not acting in the employ of his mistress at the time the matter occurred. So wliere the defendant's carman, having finished the busi- ness of the day, returned to their shop in Welbeck Street with their horse and cart, and got the key of the stable, whicli was close by, but instead of going tliere at once and putting up the horse as it was his duty to do, he, without his master's know- ledge or consent, drove a fellow-workuian to Euslon Square, and in iiis way back ran over and injured tlie plaintiff; it was held, that inasmuch as the carman was not at the time of the accident engaged in liis master's business, they were not respon- sible for the consequences of his unauthorized act(/^). And Maule, J., said, "Tlie master is liable, even though the servant in the performance of his duty, is guilty of a deviation or a failure to perform it, in the strictest and most convenient man- ner. But where the servant, instead of doing that which he is employed to do, does something wliich he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of the servant in djing it." The principle upon which these cases were decided is further illustrated by the following American case (c) : — The defendant's servant was driving his waggon and team, and the plaintiff's son (a boy on his way to school), asked for a ride. The servant said he might when they got up the hill he was then ascending. When the hill was ascended, the lad took hold of the side of the waggon, between the front and hind wheels. The driver did not stop. He was cautioned by a bystander, that if he did not stop he would kill the boj'. He looked behind him. The horses were walking, and the driver seeing the plaintiff's son and other boys attempting to get on the waggon, cracked his whip, and put the horses into a trot. The plaintiff's son fell, and the hind wheel went over and in- jured him : it was held, that as the driver whipped the horses, intending to throw the boy off, this was a wrong on the part of the servant, for which the master was not liable, any more than he would have been for an assault committed by the servant. So, if a master of a ship sign a bill of lading for goods which have never been shipped (^); or a wharfinger's servant fraudu- lently sign a receipt, purporting to be an acknowledgment that certain goods have been delivered at his master's wharf to be shipped, no such goods having in fact been delivered (c) ; nei- ther the wharfinger in one case, nor the shipowner in the other, will be bound by such act of their servant. In neither case was (6) Mitchell v. Crassweller, 13 C. B. 237. It was held in this case, that under ''not guilty" the defendants niiglit show that the driver was not at the time of the accident acting as their ser- vant. (c) Wright \. Wilcox, 19 Wen- dell's Rep. 343, following M'Ma- iius v. Crickett. (d) Grant v. Norway, 10 C. B. 665 ; Hubhcrsty v. Ward, 8 Exc. 330. (e) Coleman v. Riches, 16 C. B. 104. IN CASES OP TORT— CIVILITER. 195 there any actual authority to do the act complained of, nor did the facts warrant the inference of an implied aurhority. And if one employ anothir to do an act which may be done When master in a lawful manner, but the 'latter in doing- it commit a public ""'.'.'i^'^''', . I 1 . '11/ V*\ *or lUetjal act nuisance, tlie employer is not responsible [j ). of servant. If a servant muliciously, and without reasonable and probable Malicious cause, indict another for stealing his master's goods, the master prosecution, would not he liable to an action for malicious prosecution (ff). Nor is a master responsible tor injury caused by his servant's Nor if person negligence to a person who might, by the exercise of ordinary ^^^^^^"rdl^ care, have avoided the consequences of the servant's m^gW- nary care. geuce(h). It is not, however, sufficient, in order to exempt a master from resp nsihility, to show that tlie party injured did, by his own act, contribute to the injury; but it must be shown that he did not use ordinary care to avoid the consequences of the servant's negligence (J). Whether or not the party injured did use ordinary care would be a question proper for a jury to decide, taking into consideration all the circumstances of the case {k). But if he did not, he would have no right to recover compensation from the defendant for what, properly speaking, was the effect oi' his own want of caution. Therefore, in an action (/) by a passenger in the train of one Bridge v. railway company against another compimy, with a train be- Grand Junc- longing to which a collision had taken place, whereby the clmpany. plaintiff was injured, a plea by the defendants, that the injury was caused in part by the negligence of the persons who had the care of the train in which the plaintiff was riding, was held bad, as it was consistent with all the facts stated in it that the plaintiff, or those who had the charge of the train in which he was riding, could not by the exercise of ordinary care have avoided the consequences of the defendant's negligence. And Lord Wensleydale said: " The rule of law is laid down with per- fect correctness in the case of Butterjield v. Forrester {m)\ and that rule is, that although there may have been negligence on (/) Peachey v. Rowland, 13 C. See 11 M. & W. 313. But see B. i82. also Castvell v. Worth, 5 E. & B. (g) Stevens V.Midland Railway 849, where a plea, that the Company, 10 Exc. 352; S. C 23 j)laintiff wilfully set in motion L. J., Exc. 328. the machinery for an injury {h) So, e converso, a master caused by which the action was cannot recover against a third brought, was held good ; but person for damage which has tlie objection that it amounted to arisen through his own servant's the general issue does not appear negligence, Pardington v. South to have been taken. Wales Railway Company, 26 L. (i) Bulterfield \. Forrester, \\ J., Exc. Hi,'); Ellis v. South- East, CO; and see Clayards v. Western Railway Company, 2 H. Dethick, 12 Q. B. 439. & N. 424; S. C. 26 L. J., Exc. {k) Ellis v. South- Western Rail- 349. In Gough v. Bryan, 2 M. way Company, nhi supra. & W. 770, a plea that the da- ('/) Bridge v. The Grand Junc- mage complained of was caused Hon Railway Company, 3 M. & by the negligence of the ])lain- W. 244; ace. in America, Center tiff's servant, was held bud as v. Finney, 17 Barbour's Rep. 95. amounting to the general issue. (to) Ubi supra. k2 196 master's liability to third persons, etc. the part of the plaintiff, yet, unless he might by the exercise of ordinary care have avoided the consequences of the defendants' negligence, he is entitled to recover: if by ordinary care he might have avoided them he is tlie author of his own wrong." Daviesy. I'be same principle was again acted upon in the case of Mann. DavU's v. Muim (n), w ere a master was held liable for the negligence of his waggoner, who had driven over and killerl the plaintiff's ass, which was wron<>fiilly left fettered in the public road ; for although the plaintiff was negligent in leaving his donkey there, yet the donkey's being there was not the immediate cause of the injury. Tuff V. -And in the case of Tiiff'\.Warman(o}, in the Exchequer Warman. Chamber, Wightnian, J., in delivering judgment, said : — "The proper question for the jury in cases of this kind is, whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune by his own negli- gence or want of ordinary and common care and caution, that but for such negligence or want of ordinary care and caution on his part the misfortune would not have happened. In the first case the plaintiff would be entitled to recover ; in the latter, not, as but for his own misconduct the misfortune would not have happened. Mere negligence, or want of ordinary care or caution, would not, however, have disentitled him to recover unless it was such that but for the negligence and want of ordi- nary care and caution the misfortune would not have happened, or if the defendant might by the exercise of caution on his part have avoided the consequences of the neglect or carelessness of the plaintiff. This appears to be the result deducibie from the opinion of the judges in the cases of Butterfield v. Forrester, Bridge v. The Grand Junction Railwoy Company, Davies v. Mann, and Dowell v. The General Steam Navigation Company." Passenger in And this principle, of holding a master not responsible for veyance°" damage done by his servant to a person who might by the ex- identified ercise of ordinary care have avoided the damage, was in one •with driver, gase extended so far as to hold that a passenger in a public conveyance could not recover damages for an injury sustained in consequence of the negligence of the driver of another convey- ance against the owner of that conveyance, if the persons having the conduct of the conveyance inwhich he is a passenger could by the exercise of ordinary and reasonable care have avoided those consequences ; but that his remedy in such case is against the person conveying him, or that person's servants: thus identifying to a certain extent the passenger and the driver of a public conveyance. It may, indeed, be doubted (p) how (n) 10 M. & W. 546 ; see also P. 26.3 ; 2 C. B., N. S. 740 ; and Morrison v. The General Sleam see Senior v. Ward, 28 L. J., Q. 'Navigation Company, 8 Exc. 7iiO ; B. 139. Dowell V. Sa7ne Company, 5 E. & {p) See 1 Smith's L. C. 132 a; B. 195 ; S. C. 26 L. J.,'Q. B. 59. Riglnj v. Hewitt, 5 Exc. 240 ; S. (o) 27 L. J., C. P. 322 ; S. C. C. 19 L. J., N. S., Exc. 291 ; in the court below, 26 L. J., C. Greenland v. Chaplin, 5 Exc. 243 ; IN CASES OF TORT— CIVILITER. 197 far the case in which this decision was arrived at will be sup- ported ; but even if it is supported, the consequences will not be very important in a practical point of view, as it only goes to the question who is the proper party to be responsible in each case ; that the party injured has his remedy against some one still remains perfectly clear. The case above alluded to is Thorogood v. Bryan {q), T/iorogoodv. which was an action against an omnibus proprietor to recover ^''y""- damages for the negligence of her servant, who had caused the death of the plaintiff's husband (r) by knocking him down and driving over him as he had just alighted from another omnibus. The deceased was a passenger in an omnibus belonging to B., and the defendant was owner of another rival omnibus running on the same line of road. Both vehicles had started together, and frequejitly passed each other, as either stopped to take up or set down a passenger. Deceased, wishing to alight, did not wait for the omnibus to draw up at the kerb, but got out whilst it was in motion, and far enough from the path to allow another carriage to pass on the near side. The defendant's omnibus coming up at the moment, deceased was unable to get out of the way, was knocked down and run over, and shortly after died of the injuries so sustained. But it was held by tiie Court of Common Pleas that the defendant was not liable to make compensation for the consequences of her servants' negligence, as there appeared to have been negligence on the part of the driver of tlie omnibus in which the deceased was a passenger; and, foj- the purposes of that actioyi, the passenger must be considered as identilied with the person having the management of the omnibus he was conveyed by. Upon this case, however, it may be observed that the passenger, at the time the accident happened, had left his omnibus ; and, moreover, that he had left it under circumstances which showed a want of ordinary care on his own part(s). This would seem to be sufficient ground for supporting the decision in that case, even should the judgment, identifying the driver with the passenger, be considered erroneous. Where the plaintiff, a child of five years old, was under the care Child identi- of his grandmother, who purchased tickets for both from A. to fied with per- T-> ^ 1 1 p 1 7 -1 1 1 M • IT , son taking B., on the defendants railway, and while crossing the line at charge of it. A. to be ready for their train, they were both knocked down and waitev. injured by another train ; the accident was partly owing to the North-East- defendan is' negligence, but there was also such negligence on the con/'an'^"^ part of the grandmother as would have prevented her from recovering against the defendants ; it was held by the Court of S. C. 19 L. J., N. S., Exc. 293. v. Burnett, Rapson v. Cuhitt, It is observable that in the case &c., see these cases, post. alluded to in the lext {Thorogood (q) 8 C. B. 115. v. Brtjari), none of the cases {r) The action was brought were cited in which a master has under the statute 9 & 10 Vict. been held not responsible for the c. 93. act of one whom he did not select (s) See the case put by Cole- to discliarge the duty he was ridge, J., in Woolfy. Beard, 8 C. discharging at the time an acci- & P. 374, 375. dent happened, such as Quarman 198 master's liability to third persons, etc. Queen's Bench, and nffirmed by the Exchequer Chamber, tliat there w.is a conij)lete identification of the plaintiff' with the grandmother, and tiiat bj' reason of her negligence the action in his name could not be maintained (Z). • Where per- But where the p-irty injured was a child incapable of taking son injured is pare of itself, and was not under the care of anyone who was taktng care, capable of taking care of it, a master has been held liable for injury caused to the child by the negligence of his servant, although the child itself, by its own act, brought about the Lym-h v. accident. Thus, where (m) a carman, who had charge of a cart, JSittrdin. went into a house and left the horse and cart standing at the door, without anyone to take care of them, for about half-an- hour, and durinu: his absence a child, under seven years of age, got upon it, and another boy led the horse on, whereby the child was thrown down, run over, and his leg broken : it was held that the carman's master was liable for the damages sus- tained by the child, although the child was a trespasser and contributed to the mischief by his own act; the jury having found that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse. Who is the The difficulty, however, Avhich arises in cases of this sort is master of the j,ot SO much in ascertainiuir the law as in applvins: it to the cir- servantuoins r i .• "i i . •""■ i • j. the damage? cumstances 01 each particular case, and ascertaming iv no is to be regarded as the master in each case, for it is obvious that the liability arising from the relationship of master and servant cannot exist unless the relationship itself exist (x). In all cases, therefore, of injury by the act of a servant, it is most important to ascertain in the first place whose servant the pei'son was who caused the injury. And this is an inquiry of greater difficulty than would at first be imagined, and frequently involves ques- Corichman, tions of Considerable nicety. For instance, in the ordinary case "^'i'l^ C3,"iage of a person hiring a carriage, horses and driver (?/) on a job, job, not ser- although it is now settled that, if in such a case any accident or vant of hirer, injury happen to a third person through the carelessness or misconduct of the driver, the hirer is not, in general (c), liable to make compensation for such injury, yet there was formerly considerable doubt upon the subject, and some of the judges (/) Watte V. North-Eastern man was held liable to an action Railway Compauy, 27 L. J., Q. B. for keeping a mischievous dog, 417 ; 28 L. J., Q. B. 258. when the dog belonged to a per- (tt) Lynch v. Nurdin, 1 Q. B. son vvlio had formerly been his 29. But see Lygo v. Newhold, 9 servant, and had been seen about Exc. 302. ■ his premises. {x) In Stables \.Eley, 1 C. & (?/) If tlie horses are driven by P. 614, a person who had for- the servant of the hirer he would ■ merly been in partnershi]) with be liable, Sammell v. Wright, another man was held liable to 5 Esp. 263. an action on the case for injury (2) The hirer may make him- caused by the negligent driving self liable by ordering, sanction- of the carter of tiiat other, after ing, or adopting the act of the the dissolution of the partner- driver, M'Laiighliu v. Prior, 4 ship, as his riame was on the cart M. & G. 4:8, post, p. 213 ; Burgess that did the damage. And in v. Grai/, 1 C. B. 578, ^os^, p. 203. M'Kone v. Wood, 5 C. & P. 1, a IN CASES OF TORT— CIVILITER. 199 expressed opinions that the hirer was responsible, as being the dominus pro tempore {ci) ; and he certainly is, in some respects, the master, for he may order the carriage to be driven where he pleases. The question was argued at great length in Lauglier ^°^9^'"' ^ ■ V. Pointer (b), where the owner of a carriage hired for the day, of a livery-stable keeper, a pair of horses and a driver, through whose negligence an injury was done to the plaintiff's horse ; and the question was, whether the owner of the car- riage, or the livery-stable keeper who supplied the horses and driver, was liable to make compensation for the injury. The judges before whom the case was argued, differing in opinion, they all gave separate and very elaborate judgments, which, as observed by Mr. Justice Story, in his valuable work on Agency (c), " have exhausted the whole prior learning on the subject, and on that account should be attentively studied:" The Lord Chief Justice, afterwards Lord Tenterden, and Mr. Justice Littledale, holding that the owner of the car- riage was not liable ; and Bayley and Holroyd, JJ., hold- ing that he was. The point was thus left unsettled, for not only the Court of Queen's Bench but the twelve judges differed upon it(d). It again arose, and was definitively settled in Quarman n"'^'^'",^" ^' V. Burnett (e), in which the Court of Exchequer, after fully con- sidering the judgments given in Laugher v. Pointer, thought the weight of authority and legal principle was in favour of the (a) See per Heath, J., in Bush v. Steinman, 1 B. & P. 409. The owner may maintain trespass for injury to them, Dean v. Branth- waite, 5 Esp. 35. Where A. hired B.'s servant to thatch for him, with B.'s assent, B. was held liable for negligence of the servant. But semble, he was not for incompetence, Holmes v. Onion, 2C. B., N.S. 790; S.C.26L.J., C. P. 261. {b) 5 B. & C. 545. And see Chilcoi v. Bromley, 12 Ves. 114, where Sir VV. Grant held that a job coachman supplied with car- riage and horses, was not a ser- vant of the person to whom they were supplied, although he paid the coachman board wages, as the contract was with the job- master, and the coachman was a subject of the contract, not a imrty to it. (c) Sect. 453 b. (d) See yser Lord Wensleydale, in Quarman v. Burnett, 6 M. & W. 507. In Bradij v. Giles, 1 M. & Rob. 494, where a similar question arose in an action on the case. Lord Abinger, C. B., left it to the jury to say whether the postilions were acting as the servants of the owner of the chaise, or of the hirer, and said it always appeared to him that the Queen's Bench pursued an erroneous course in Laugher v. Pointer, when they allowed the question to be discussed as a question of law. And see McLaughlin v. Prior, 4 M. & G. 48, post, p. 213. (e) 6 M. & W. 499. And see Fenton v. The City of Dublin Steam Packet Company, 8 A. & E. 835, where the owner of a ship, who let it by charter-party, whereby he agreed to find sea- men, was held liable for their negligence, and Dean v. Hogg, 10 Bing. 345 ; Dalyell v. Tyrer, 28 L. J., Q. B. 52. See also Rex v. Haydon, 7 C. & P. 445, where it was held that the driver of a glass- coach, having stolen a purse from the hirer, could not be convicted of larceny as a ser- vant, so as to be liable to the punishment for the aggravated offence under 7 & 8 Geo. 4, c. 29, s. 46, but he was guilty of simple larceny only. 200 MASTEn'S LIABILITY TO THIRD PERSONS, ETC. Persons employing contractor not liable for acts of his workmen. If he has ])arted with whole con- trol. Butcher em- ploying Sniithfield (i rover. MilUgaii v. view taken by Lord Tenterden and Mr. Justice Littledale, and decided accordingly, that tlie hirer was not, liable. And it was also held, that the facts that the hirer always had the same driver, who was the only one his master kept, and always gave him a fi.xed gratuity antl provided him with a livery, which he kept in the hirer's hall, and while he was hanging up which the accident happened, made no difterence in the hirer's liability. The princijjle upon which Quarmanv, Burnett {e) was de- cided has been frequently applied to other cases, in which a man has employed a person, carrying on a distinct trade or calling, to perform certain works for him, and an injury has been caused through tiie unskilfulness, negligence or default of the workmtin employed by that person (f). In such a case, the workmen are selecled and employed by the contractor, and it would be obviously unjust to hold his employer, who had nothing to do with the selection of the workmen, liable for the consequences of their unskilfulness or negligence. To make the ])riuuiry principal or employer responsible in such cases would, as observed by Mullett, J., in Blahe v. Ferris {g), be to push the doctrine of respondeat superior beyond the reason on which it is founded. The test generally is, whether or not the employer retained the power of controlling the work {h). If he has parted with the whole control, he is not in general liable. Thu^, where a butcher bought a bullock in Smithfield Mar- ket, and employed a licensed drover to drive it home, and the drover employed a boy, through whose negligence the bullock injured the plaintiff's property; it was held, that the butcher was not liable, as the drover exercised a distinct calling,' and the boy who caused the mischief was his servant, not the ser- vant of the butcher (i). And so where a builder was employed to make certain alterations at a club-house, including the pre- (e) Uponanalogousprinciples, (somewhat governed by the law maritime,) it has been held that the mai^ter of a general ship is not liable to the owner of goods for damage done to them by the careless stowage of a stevedore appointed by the charterer, but paid by and to act under the cap- tain's orders, the stevedore not being the servant of the master, Blaclde v. Stembridge, 28 L. J., C. P. 329. Of course, however, the master might make himself liable for the stevedore's acts by interfering, ibid. (/) An attorney is not such a contractor, therefore client is liable to an action of trespass if ca. sa. set aside, Collett v. Foster, 2 H. & N. 356 ; and see Freeman v. Rosher, 13 Q. B. 780. {g) 1 Selden's (Americ.) Rep. 58. {h) Sadler v. Herdoclc, 4 E. & B. 570, where a labourer, par- ticularly skilful in making drains, was employed to cleanse a drain for the defendant, who paid him 5s. for the job, the defendant was held liable for injuries caused through such labourer's negli- gence. As to how far landlord is liable for the acts of men sent in to repair a well, see Mills v. Holton, 2 H. & N. 14. (0 Milligan v. Wedge, 12 A. & E. 737. In this case, Litdedale, J., stated that he retained the opinion he had expressed in Laugher v. Pointer ; see Martin v. Tetnperley, 4 Q. B. 298, post, p. 206. And see also R. v. Hey, 2 Carr. & K. 983, where it was held that a drover was a bailee, and not a mere servant of the person who einployed him, and there- fore, that having sold some pigs IN CASES OF TORT — CIVILITER. 201 paration and fixingrof certain gas-fittings, to do which he made Rapson v. a sub-contract with a gas-fitter, through the negligence of '^«'»"- whom, or his .servants, tlie gas exploded and injured the plain- tiff, the builder was held not liable, as the relation of master and sei vant did not exist between him and the party causing the injury (k). So where a viaduct was being built by contractors for „ ,. ^ a railway company, under a deed, by which, amongst other Lon^ln'and things, it was provided that the contractors were to do the North- work, but the company had a general right of watching the pro- ^^^Z^*^" gress, and if the contractors employed incompetent workmen, compamj. the company had the power of dismissing tliem : the company were held not liable for injuries sustained by a workman, who was killed by a heavy stone which fell from a travelling truck, through the negligence of some of the contractor's workmen, whilst building the viaduct, as the workmen, who caused the injury, were not the servants of the company ; and the power reserved to them of dismissing incompetent workmen did not make them responsible for the consequences of the contractors employing such. And it was also held, that the defendants being the owners of the land on which the accident happened made no dift'erence (Z). So again, commissioners of a navigation, who had entered into ^''«« v. a contract with a person to do certain works, were held not liable "y"'"'''^- for an injury arising from the imperfect performance of part of those works, as the contractor was not their servant (m). So in another case(w), where a railway company entered into Knight v. a contract with A. to construct a portion of their line. A. con- -'^''^• tracted with B., who re?ided iu the country, to erect a bridge on the line. B. had in his employment C, who acted as his general servant and as a surveyor, and had the management of B.'s business in London, for which he received an annual salary. B. entered into a contract with C, by which C. agreed for 40/. to erect a scaffold, which had become necessary in build- ing the bridge ; but it was agreed that B. was to provide the entrusted to him and absconded where the defendants were held with the money, he could not be not liable in trover for the acts convicted of larceny. He had of a contractor's workman. See no original intention of stealing also Sleel v. South-Eastern Rail- the pigs. way Compamj, 16 C. B. 550. (Ic) Rapson v. Ciihitt, 9 M. & (/«) Allen \. Haijward, 7 Q. B. W. 710. See Gayford v. Nicholls, 960 ; see Clayardsx. Dethick, 12 9Exc. 702; Cutiibertson \. Par- Q. B. 439. See also the American sons, 12 C. B. 304. In M'Keon cases of Lowell v. Boston and V. Bolton, 1 Ir. C. L. Rep. 279, a Lowell Railroad Corporation, 23 person employed to remove dust Pick. 24 ; Stone v. Cheshire Rail- was held to be a servant, and not road Corporation, 19 New Hamps. a contractor, and the employer Rep. 427 ; Blake v. Ferris, 1 was held liable for an accident Seld. 49, 62 (1851); Hilliard v. caused by a heap left in the Richardson, 3 Gray, 349 (1855), Street. in the lastof which are two elabo- (l) Reedie v. Jjondon and rate judgments. Kelly v. Mayor North - Western Railway Com- of New York, 1 Kernan, 432 pany, 4 Exc. 244 ; and see Glover (1854). v. The Same Company, 5 Exc, 66, {71) Knight v. Fox, 5 Exc. 721, k5 202 master's liability to third persons, etc. Overton v. Freeman. Brig towed by steamer. Sprout V. Aemming- way. Employer of person doiiia; unlawful act liable ; unless aet might be done in lawful man- ner. Person em- requisite materials, and lamps, and other lights. The scaffold Avas erected upon the footway by C.'s workmen, and a portion of it inipropcriy proji'Cted, and owing to that and the want of sufhcient light, D. fell ). A brig, which was towed at the stern of a steamboat employed in the business of towing vessels in the river Mississi])pi below New Orleans, was, through the negligence ot the master and crew of the steamboat, over whom those in charge of the brig had no control, brought into collision with a schooner lying at anchor in the river. A suit was brought by the owners of the schooner against the owner of the brig fqf the damages sustained by the collision ; and the ques- tion was whether the owner of the brig was liable therefor. It was held, upon full argument, that he was not, upon the ground that the master and crew of tlie steamboat were not the servants of the owner of the brig; were not appointed by him ; did not receive their wages or salaries from him ; had no power to order or control them in their movements, and had no contract with the master and crew of the steamboat, but only through the master with the owners of the steamboat for a participation in the power of the steamer, derived from the public use and employment thereof by the owners. But if the act contracted to be done be in itself unlawful the original employers are responsible. As where the defendants, without having any power or authority to break up streets employed contractors to do it for the purpose of laying; down gas pipes, and the plaintiff fell over a heap of stones left by the contractors and hurt herself, the defendants were held liable (§'). If, however, the act may be done in a lawful manner, the employer is not responsible if it is done in an unlawful manner, or so as to be a public nuisance (/•). And where a contractor is employed, his employer may, by personal interference with the workmen, adopt their acts, and (o) Overton v. Freeman, 21 L. J., C. P. 52; S. C. 11 C. B. 867. ( p') Sproul v. Hemmingway, 14 Pick. R. 71 ; see Story on Ag. 453 c, in a note to which is a long extract from the judgment of Chief Justice Shaw. See Oaldeij V. Portsmouth and Ryde Steam Packet Company, 11 Exc. 618. (<7) Ellis V. Sheffield Gas Com- pavy, 2 E. & B. 767 ; see Sadler V. Henloch, 4 E. & B. 570. (r) Peacltey v. Rowland, 13 C. B, 182 ; S. C. 22 L. J., C. P. 81. IN CASES OF TORT — CIVILITER. 203 SO render himself liable, -where, ordinarily, he would not be so. ploying con- As in the case of Burgess v. Gray (s), in which it appeared ^loi^^xlmlx that the defendant was the proprietor of some newly-built interfertnce. houses vvliich he had employed P. to build for him, and P. in Burgess y. forming a drain from premises belonging to the defendant at the '^'"'^v- back of the new houses to tlje common sewer, had, by his ser- vants, caused a quantity of gravel to be deposited by the road- side. The drain being finisl)ed, P. employed a person to carry away the gravel, and paid him so much a load, which he charged to the defendant, but the person so employed left some on the road, and the plaintiff, whilst driving in the evening along the road, ran upon the gravel left in the road, was upset, and injured. The defendant's attention had been called to the gravel left in the road by a policeman, and he had promised to remove it as soon as he could, and after the accident had said it was caused by the plaintiff's carelessness. On the part of the defendant it was, amongst other things, contended on the principle of Quarman v. Burnett, that he was not liable, as he had employed a contractor, but it was nevertheless held that under the circumstances of the case he was liable. And unless a person who employs a contractor to do work And unless for him has parted with the whole control of that work, he will tuh'the"''^'' still remain liable for the acts of that person and his workmen, whole con- In such case it must be assumed that he adopts all that is done *''''^- in carrying on the work (f). ^ This liability of the master for the act of his servant, however, Master not presupposes and is founded upon some obligation binding upon 'labiefor the master, either by contract or otherwise, to do or abstain wiien he from doing the act, the not doing or doing of which is com- would not be plained of. A master cannot be liable for bis servant omitting jf^j jt ^inf. to do an act unless he himself was bound to do it. Nor again, self. can a master be liable for his servant doing an act which he himself was at liberty to perform, except, of course, in the case of a trust or license jiersonal to the master. Where the plaintiff, who was an officer in the army, being Finucaney. about to leave London, sent his trunk to the house of the de- fendant (who was an upholsterer) for safe custody, and agreed to pay one shilling per week for house-room, and when the plaintiff returned he received the trunk, but the whole of the contents had been taken out and stolen, and the plaintiff brought an action against the defendant, charging him as bailee; Lord Kenyon held that the action could not be supported when it appeared that he had taken as much care of the plaintift''s goods as he had of his own, and said : "To support an action of this nature positive negligence must be proved. It has ap- («) 1 C. B. .578. The defend- who placed the gravel in the ant in this case was held liable road. It is on the latter account partly on the ground that it did that it is cited in the text. See, not appear that he had parted however, Knight v. Fo-r, 5 Exc. with the whole control of the 721, a'lie, p. 201 ; and see also work, and partly on the ground the cases of trespass, post. that he had sanctioned and {t) Per Cresswcll, J., in .Bar- adopted the act of the person gess v. Gray, 1 C. B. 592. 204 master's liability to third persons, etc. peared in evidence in tliis case that the goods were lodged in a place of securitj', and where things of much greater value were kei)t. This is all that it is incumbent on the defendant to do, and if such goods are stolen by the defendant's own servants that is not a species of negligence of a description sufficient to sup))ort this action, inasmuch as he has taken as much care of tiiem as of his own " (n). Clarke v. gut where A. intrusted B. (a chronometer maker) with a chro- Earnshaw. pQmgtgr ^,0 be repaired, and B. suffered his servant to sleep in the shop in which the chronometer was deposited, and B.'s ser- vant stole it, and it appeared that B. at the time when the theft was committed had deposited his own watches in a more secure place, B. was held liable to A. for its value (x). In the following case(?/), the judges were equally divided Danseyv. in opinion as to whether or not the master was liable: — The Richardson. (jgfg„(]ant was a boarding-house keeper, and the plaintiff was boariUn^"'^ received, with lier luggage, as a guest for reward, paying, in house keeper fact, between 11. and 3/. a week. She had the use of sitting, fornegli- drawing and dining rooms in common with others, her own bed- vants.° ^'^^' I'oom, her board and the attendance of the servants, among whom were a butler and page ; and these, when required, went on errands for the guests, and carried th(-ir luggage to and from their rooms when they arrived and departed. On the 10th of December, in the evening, the plaintiff was to leave the house and to dine before she went. About half-past five, being in her bedroom, she was told dinner was ready by one of the men- servants, to whom she gave part of her luggage to take down stairs, and the other servant afterwards carried down the re- mainder : all were placed in the hall near the fore-door. Shortly before her departure, she sent the butler out, to a shop near, for biscuits; and it was not seriously contested by the defendant's witnesses that this servant going out left the fore- door ajar, and a thief, profiting by the opportunity, entered and carried off a box of the plaintiff's containing valuable property. There was no evidence whether the defendant had received a character for carefulness with the butler when he entered her service. There was conflicting evidence whether he had on former occasions left the door ajar, and, if so, whether that was within the knowledge of the defendant ; and also, whether any former robberies, attributable to the same cause, had occurred. At the trial, Erie, J., told the jury that a boarding-house keeper was bound to take due and reasonable care about the safe keeping of the guests' goods, which he explained to be, such care as a prudent housekeeper would take of the house for the purpose of protecting her own goods ; that leaving the door ajar might be a v.'ant of such care, but that the defendant was not answerable for such negligence in the servant unless she had herself been guilty of some negligence, as in keeping such a servant with notice of his habits. The jury found for the de- fendant. On a rule for a new trial, it was held by the whole (w) Finucane v. Small, 1 Esp, 30. 315. (?/) Dansey v, Richardson, 3 E. (x) Clarke \. Earnshaw, 1 Gow, & B. 144. IN CASES OF TORT— CIVILITER. 205 court that a boarding-house keeper is not bound to keep a guest's luggage safely to tlie same extent as an innkeeper, but that she undertakes by iu-plication of law, although nothing is expressed, to take due and proper care of a guest's baggage, and that neglecting to take due care of the outer door might be a breach of such duty, and that, so far, the direction was right. And Erie, J., and Wiglitman, J., held, that unless the defendant her- self was guilty of negligence, the act of the servant in leaving the door iijar was not one for which the defendant was respon- sible, it not being a neglect of any public duty which was owing to plaintiff", nor a breach of contract between plaintiff and defendant, but merely negligence of the servant towards his mistress, and that therefore the direction was right. Whilst Lord Campbell, C. J., and Coleridge, J., held that the act of the servant was, under the circumstances, the act of the defendant : and that there was no distinction between the personal negli- gence of the defendant and that of her servant in her employ- ment, the defendant being equally answerable for both, and therefore they held the direction wrong (2). But where a master is obliged, by Act of Parliament, to Master employ a particular person, and all power of selection is taken j'^w^o'enf from him, it would be unjust to render him responsible for the ploy a parti- wrongful acts of that person. Accordingly, the Pilot Act (a), cuiarperson, 1-1 11- s *• -I t * 1 \i' not liable for which compels shipowners, &c., wanting a pilot, to employ the ijjs acts. first duly licensed pilot who shall offer himself, enacts (Z<), tliat pjjotActs no owner of any ship shall be answerable for any damage which shall happen to any person by reason of the neglect or incapacity of any licensed pilot, acting in the charge of such ship, under any of the provisions of that act. The books con- tain numerous instances in which shipowners have been held not to be responsible for injuries caused by their vessel, whilst under the command of a licensed pilot (c). And it has even Lucey v. been held (ri), upon the construction of the Act of Parliament, ^"S''"'"- that a shipowner was not liable for injury caused by the neg- ligent navigation of his ship whilst under the care of a pilot, although it was not compulsory upon him, under the circum- stances, to employ a pilot; as it was compulsory upon the pilot to serve if called upon, and he having been called upon had taken the control of the ship. However, the decision in Bennet v. Moita has, to a certain extent, been modified by a case before the Privy Council {c), in which it was laid down, that the presence of a pilot on board a vessel by compulsion does not prima facie exonerate the owners from the responsibility of an act of negligence in the nianage- (z) The court being equally v. Ingram, 6 M. & W. 302. The divided, no new trial was case of The Maria, 1 W. Rob. granted. Adm. R. 95, on the Newcastle (a) 6 Geo. 4, c. 125, s. 19 ; see Pilot Act, 41 Geo. 3, c. Ixxxvi. now 16 & 17 Vict. c. 129 ; 17 & {d) Lucey v. Ingram, 6 M. & 18 Vict. c. 104, s. 353; c. 120. W. 302. (6) 6 Geo. 4, c. 125, s. 55. (e) Hammond v. Rogers, 7 (c) liennet v. Moita, 7 Taunt. Moore P. C. 160. 258 ; and see cases cited in Lucey 206 master's liability to third persons, etc. But whore master has power of selection, he is liable, though limited to one class. Marl in v. Temper lei/. ment of the vessel : but tliat tliey are bound to show that the act of negligence was exclusively that of the pilot. And before that question can arise, it must be established that, under the ciiciinistances of tiie case, the vessel was obliged by Act of Pariiunient to have a pilot on board at the tinie of the acci- dent!/). And where a master has a power of selection, it makes no difference in his liability for the actsof tlie person selected, that he is bound to select from a particular class of persons, however numerous or limited that class may be. Thus, altliough by the statute for regulating watermen and lighternien on the Thames ((/), and the bye-laws ordained in pur- suance thereof, no one besides freemen, or apprentices to freemen orto widows of freemen, of the Watermen and Lightermen's Com- pany (with certain exceptions), may navigate craft on the river for hire, within the limits of the act, under a penalty ; but any persons may keep and use craft for carrying their own goods, by their servants being such freemen or apprentices; and on board of every Ijarge, &c., there must be at least one able iind skilful man authorized by law to navigate: yet the owner of a barge, who hired two qualified persons to navigate it within the limits, was held liable for injury caused to another vessel by their negli- gence. And it was held to make no difference whether the navi- gators were hired for the job or by time (/*). On that occa- sion Patteson, J., said, " On the part of the defendant it is argued that this is the case, not of master and servant, but of an independent contract to perform the work, as iu MilUgan v. Wedge [i), and Quarmanv. Burnett {h). But that is clearly erroneous. Independently of the act, the men navi- gating the barges would clearly be the defendant's servants. If the defendant, being at liberty to employ whom he pleased, engaged persons to manage his barges on the Thames, I cannot see how it is possible to contend that they were not his servants, as much as a man whom he might employ to drive his carriage. Where, indeed, a man hires another man's servant from him, though such servant be employed to drive where the person hiring i)leases, it has been held, in Qiiarman v. Burnett, that the servant so hired is not the servant of the person so hiring. That case certainly carried the exception a great way, but there the servant hired was ordinarily in the employment of the person from whom he was hired, and who let horses along with the driver. That case is not like the present. The second question then is as to the effect of stat. 7 & 8 Geo. 4, c. Ixxv. That indeed confined the defendant to employing as his ser- vants only individuals of a particular class. It narrowed the number of persons from whom he could select. But that is very different from the state of things created by the Pilot Act, where (/) Rodrigues v. Melhuish, 10 Exc. 110. Iti an action against the pilot, he is not entitled to notice of action as for a thing done in pursuance of the Pilot Act, Lawson v.Dumlin, 9 C. B. 54. ig) 7 & 8 Geo. 4, c. Ixxv. See now 22 & 23 Vict. c. cxxxiii. (A) Martin v. Temperley, 4 Q. B. 298. (f) 12 A. & E. 737. (/c) 6 M. & W, 499. IN CASES OF TORT— CIVILITER. 207 a party must take the first pilot who offers himself. Here the defendant had the power of selection, though from a limited number : and no case has gone so far as to decide that the person hired ceases to be the servant of the person hiring, if he is necessarily selected from a number, though limited. I was much struck by the argument deduced from the old statute of apprenticeship. According to the doctrine contended for on the part of the defendant, it would hardly have been possible while that act was in force to employ a man as a servant. I do not put the case on the largeness of the number from which the selection may here be made : the principle seems to me the same, whether the number be five hundred or five thousand. If there be a power of selection, and not, as in the Pilot Act, a pro- vision preventing any choice, the person hired is the servant of the person hiring." There is a large class of cases which must not be entirely Owner of omitted here, but which it will be sufficient to refer to generally, ^^'^^.^ ?-^°x^, 1 1 111 1 11 fur ir-1 perty liable as they do not probably relate to the law ot Master and ber- for acts of vant, in which tiie owners of fixed real property, as land and persons not houses, have been held responsible for the acts of persons not, servants '^ strictly speaking, their servants. The doctrine, however, on which these cases rest has recently been placed within its proper limits, in a very elaborate judgment pronounced by Lord Cran worth {I), in which he stated that, after full con- sideration, he had come to the conclusion that no distinction in point of law existed, in cases like that under con,'~ideration, be- tween fixed property and ordinary moveable chattels, unless, tut only in perhaps, in cases where the act complained of is such as to nu^j^ance amount to a nuisance. We have hitherto been considering chiefly the liability of a Liability of master to answer for his servant's acts in an action on the case. Yl^^tV^J^e^^ ■n 1 • 1111 • n trespass lor Jsut a master may also, in many cases, be liable to an action ot servant's ac-t, trespass for an injury caused by the direct act of his servant. The liability, however, of a master to be sued in this form of action, fur injuries caused by his servant, does not depend upon the relationship of master and servant, though the existence of that relationship may, possibly, aflPord an « fortiori reason for holding the master responsible. His liability depends upon the if done by fact, that the act of trespass complained of was done by his ^^^ '^°™" command, that, in truth, it was his oivn act, although done through the instrumentality of his servant, according to the maxim Qui facit per alium, per seipsum facere videtur. For, although a man may be a trespasser by his own involuntary act (r«), no man can be made a trespasser against his will by the {I) Reedie v. London and North- man, 21 L. J., N. S., C. P. 52 ; S. Western Railway Company, 4 Exc. C. 11 C. B. 867 ; Knight \.Fox, 5 244 : which was an action for Exc. 724, ante, p. 201. damages sustained by a person (m) Scott v. Shephard, 3 Wils. passing- under a viaduct in course 403; 2 W. Bl. 892; Leame v. of construction on the defend- Bray, 3 East, 593 ; S. C. 5 Esp. ants' railway, and they were held 18 ; and see per Tinda), C. J., in not liable. In that case all the M'Laughlin v. Prior, 4 M. & G. previous authorities will be 56. found. See also Overton v. Free- 208 master's liability to third persons, etc. If the com- mand be ex- press, master liable whe- ther present or not. So, if trespass be the neces- sary conse- quence of obeying mas- ter's com- mand. Gregory v. Piper. So, if trespass be committed by servant in pursuance of general, without spe- cific, ciders, act of liis servant. Unless, therefore, there be evidence of the concurrence of the master's will in the act of the servant, a master can, in no case, be treated as a trespasser for tlie act of his servant (n). If a master expressly order his servant to commit a trespass, there can be no doubt about the concurrence of his will in his servant's act, and no difficulty in treating him as a co-trespasser witii his servant; and it can make no difference whether he himself were present or absent when the trespass was com- mitted : if it were done by his orders, he would equally be a trespasser in either case. Again, if an act of trespass, on the part of a servant, be the natural or necessary consequence of an act which his master ordered to be done, his master will be liable to an action of trespass. And in this case, also, the presence or absence of the master at the time the trespass is committed can make no difference in his liability. Thus, wliere(o) the defendant, who disputed the plaintiff's right of way throuoh a yard, emjjloyed a labourer to lay down rubbish in order to obstruct the way, but gave him orders not to let any of the rubbish touch the plaintiff's wall ; the labourer executed tiiose orders as nearly as he could, but some of the rubbish, it being of a loose kind, naturally shingled down towards and ran against the plaintift''s wall : the defendant was held liable in an action of trespass. And Littledale, J., said : — " Where a servant does work by order of his master, and the latter imposes a restriction in the course of executing his order, which it is difficult for the servant to comply with, and the servant, in the execution of the order, breaks through the restriction, the master is liable in trespass. Suppose the case of two persons possessed of contiguous unenclosed land, and that the one of them desired his servant to drive his cattle, but not to let them go upon the land of his neighbour, and that the cattle went upon the land of the neighbour, the master would be answerable in trespass, becanse he has only a right to expect from his servant ordinary, not extraordinary, care. If the servant, therefore, in carrying into execution the orders of his master uses ordinary care, and an injury is done to another, the master is liable in trespass. If the injury arise from the want of ordinary care in the servant, the master will only be liable in case. Here the servant used ordinary care in the course of executing his master's order, and notwitlrstanding that, the rubbish ran against the wall." And if an act of trespass be committed by a servant in the usual course of his employment, although there be no express command on the part of his master to do the specific act com- plained of, yet his master may be liable to an action of trespass, as in such case the command will be imjdied from the nature of the servant's employment. If, for instance, in the case of (n) Morley v. Gaisford, 2 H. Bl. 442 ; M- Manns v. Crickett, 1 East, 106; per Tindal, C. J., in M'Laughlin v. Prior, 4 M. & G. 58 ; Lyons v. Martin, 8 A. & E. 512, (o) Gregory v. Piper, 9 £. & C. 591. IN CASES OF TORT— CIVILITER. 209 Lyons v. Martin (p), the servant of the defendant had merely distrained the plaintiff's cattle damage feasant, there can be no doubt the defendant wonld have been held liable in trespass for the consequences of his servant's act. And if an act. of trespass be committed by a servant on behalf t fc the and for the benefit of his master, it is perfectly clear that the and^ratr/ed master, although he gave no previous command to his servant by, master. to commit the trespass, may nevertheless render himself liable to an action of trespass by a subsequent ratification of the servant's act (g). But where an act of trespass has been committed by a servant if trespass without the orders of his master, the presence or absence of the ^t'^^yant master at the time the act is done forms a very material ingre- without dient in considering whether or not the master is liable to an orders. action of trespass for the act of his servant. For, if an act of blaster not trespass be committed by a servant in his master's absence absent'. "without his oiders, there is no ground whatever for treating the master as a trespasser. He may be liable in another fortn of action, but he is not liable to an action of trespass, as his will did not concur in the act of his servant (r). But if an act of trespass has been committed by a servant in But may be the presence of his master, if the master knew that his servant ''^''j® '^ P"' was about to commit a trespass and did not restrain him, there may be ground for presuming the concurrence of his will in his servant's act, and he may be liable to an action of trespass, although he did not expressly order the trespass to be com- mitted. For as every master must be presumed to have power to control his servant, it may fairly also be presumed from his knowing that his servant was about to commit a trespass, and' not interfering to restrain him, that he concurred in his servant's act. Qui non prohihet, cum proldbere possit^jubet. Thus, a gentleman, who was sitting by the side of his servant Chandler v. in a gig which was driven by the servant, was held liable to an ^''°^3>'>"»- action of trespass for injury caused by the horse running away and dashing the gig against the church in Langham- place, as he had the immediate control over the servant ; and Bayley, B., said : — " The rule is this ; if master and servant are sitting to- gether, and the seivant is driving the master, the act of the servant is the act of the master, and the trespass of the servant is the trespass of the master. Here the act is immediately injurious to the plaintiff, and the master was present (s). (fi) 8 A. & E. 512; see this fication of the act of the officer, case, anfe, p. 193. And see Roe v. Birkenhead, S^c. {q) See Eastern Counties Rail- Railway Company, 21 L. J., Exc. way Company v. Brou7n, 6 Exc. 9 ; S. C. 7 Exc. 86. 314. In that casean otticer of the (r) M'Manus v. Crickelt, 1 company took iJroora into custody East, 106; see Timothy \ . Simp- for breach of the comjiany's bye- son, 6 C. & P. 499; and Wright laws, and took him before a ma- v. Wilcox, 19 Wendell's (Ame- gistrate ; wlien the attorney of rican) Rep. 343, aw/e, p. 194. the company attended to prefer (.s) Chandler v. Broughton, 1 C. a charge against Broom. This & M. 29. was held not to amount to a rati- 210 master's liability to third persons, etc. If damage not too remote. Gilbertson v. Richardson. Master not liable in trespass for servant's act done without master's orders. Morley v. Gaisford. M'Manus v. Crickett. If the act of the dofendant or his servant be such as to amount to a trc.-pass on his part, it is no objection to suing him in that form of action, tliat the damage sustained by the plaintiff was not caused imnu'diauly by the defendant's act, so as the damage be not too remote. Thus, wlierc {t) it appeared that the plaintiff was driving with a friend along Oxford-street, in a chaise drawn by a high- spirited horse, and one of the traces getting accidentally over the shaft, lie alighted for the purpose of adjusting it. While so doing, tlie defendant drove his carriage against the wheel of the plaintiff's chaise, and the plaintiff's friend was thrown by the shock off the seat on to the dashing-board, which, falling on the horse, caused it to kick, whereby the chaise was damaged: it was Jiekl that the defendant might be sued in trespass for the damages sustained. But if the circumstances of the case do not show any exercise of volition, either express or implied, on the part of the master, he is iiot liable to be sued in trespass for the wilful act of his servant. Thus, in Morlcij v. Gaisford {u), which was an action on the case for injnrj' sustained in consequence of the negligent driving of the defendant's servant, it was held that case and not trespass was the proper I'emedy, the court saying, that "it was difHcult to put a case wliere the master would be considered as a tres- passer for an act of his servant which was not done at his com- mand." The point, however, was more formally decided in M'Manus V. Crickett (x), which was an action of trespass for forcibly driving the defendant's chariot against the plaintiff's chaise. It appeared that the defendant's servant wilfu/li/ drove the chariot against the plaintiff's chaise, but that the defendant was not himself present (7/), nor did he in any manner direct or assent to the act of the servant: and it was held that for this wilful and designed act of the servant an action of trespass would not lie against his master. Lord Kenyon, C. J., after sliowing from various old cases that a master was not liable in trespass for the wilful act of his servant, done without his command, said, " This doctrine does not at all militate with the case in which a master has been holden liable for the mischief arising from the negligence or unskilfulness of his servant, who had uo purpose but the execution of his master's orders ; but the form of those actions proves that this action of trespass cannot be maintained: for if it can be supported, it must be upon the ground that in trespass all are principals ; but th(; form of those actions shows, that where a servant is in point of law a tres- passer, the master is not cliargeable as such, though liable to make a compensation for the damage consequential from his (t) Gilherlson v. Richardson, 5 C. B. 502. {u) 2 H. Bl. 442. (x) 1 East, 106; and see ()/) No one was in the car- riage : the act was done by the servant either in going for, or after he had set down, his Wright V. Wilcox, ante, p. 194. master. IN CASES OF TORT — CIVILITER. 211 employing of an unskilful or negligent servant. The act of the master is the employment of the servant; but from that no im- mediate prejudice arises to those wiio may suffer from some subsequent act of the servant." So, again, in Gordon y. Bolt {z), which was an action o{ Gordon v. trespass for breaking the plaintiff's crane. The plaintiff had set ^°^^' up the crane in a dockyard, with a view to its being tested, and, if approved of, ultimately purcliased by Government. The crane itself was not fixed to the soil, but was placed in a socket which was so fixed. The defendant was the contractor for certain works then in progress in the dockyard, and em- ployed H. as a sub-contractor. The workmen of H. broke the crane by using it to snap off the head of a pile which had been Lalf-sawn through. Cutting off the piles was part of the defendant's work under the contract, but he had never given any authority to H. or his men to use the crane, nor did he know that they had used it. H. knew that his men occasion- ally used the crane, but he never authorized them to use it for any particular purpose. And it was held, that the defendant was not liable to an action of trespass for the act of H.'s work- men in breaking the crane. In the course of the argument, Lord Wensleydale said, "The result of the authorities is, that if a servant in the course of his master's employ drives over any person, and does a wilful injury, the servant, and not the master, is liable in trespass: if the servant by his negligent driving causes an injury, the master is liable in case : if the master himself is driving, he is either liable in case for his neg- ligence, or in trespass, because the act was wilful." And again, iu Sharrod \. The London and North-Westeifi siiarrod\. Bailway Company {a), which was also an action of trespass J^J^°^^'^°'* for driving a railway engine over and killing the plaintiff's Western sheep. The sheep had got on the railway iu consequence of a R^i'^'ay defect of fences, and were run over by an express train drawn °'"P""'J- by a locomotive engine driven by a servant of the company, who had directions to drive at a certain rate per hour. But it was held that the company were not liable to an action of t?'es- pass, although the injury was caused by the direct act of their servant, as they did not order him to drive over the sheep, nor was his doing so the necessary or probable consequence of executing the orders of the company. And Lord Wensleydale said:— "The immediate act which caused the damage to the plaintiff's cattle was the impact of a machine which was under the control of a rational agent, the servant of the defendants ; not so much so, indeed, as a horse or carriage drawn by horses or propelled by mechanical power along an ordinary highway would be, in which cases both the direction and tlie speed of the machine are under government, but still in such a degree as to make the cases similar for the purpose of deciding the present question. We may treat the case, then, as if the damage had been done by an ordinary carriage drawn by horses ; and it being now settled that an action of trespass will (a) 4 Exc. 365 ; S. C. 7 I>. & (a) 4 Exc. 580 ; S. C. 7 D. Sc L. 87. L.213. 212 master's liarility to third persons, etc. lie against a corporation (b), we may consider for the present purpose tli(! defendants ns one natural person, and the carriage under the Ciireot' his servants. Now the law is well established on the one hand, that whenever the injury done to the plaintift' results from tlie immediate force of tlie defendant liimself, whether intentionally or not, the plaintiti" may bring an action of trespass; on the other, that if the act be that of the servant, and be negligent not wilful, case is the only remedy against the master. Tlie maxim, ' Quifacitper alium,facil per se ' renders the master liable for all the negligent acts of the servant in the course of his employment ; but that liability does not make the direct act of the servant the direct act of the master. Trespass will not lie against him ; case will, in efl'ect for employing a careless servant ; but not tresj)ass, unless as was said by the Court in Morley v. Gaisford (c), the act was done ^ by his command;' that is, unless either the particular act which con- stitutes the trespass is ordered to be done by the principal, or some act which comprises it ; or some act which leads by a physical necessity to the act complained of. The former is the case, when one, as servant, is ordered to enter a close to try a right, or otherwise ; the latter, where such a case occurs as Gregory v. Piper (d), where the rubbish ordered to be removed from a natural necessity fell on the plaintiff 's soil ; but when the act is that of the servant in performing his duty to his mas- ter, the rule of law we consider to be that case is the only remedy against the master, and then only is maintainable when that act is negligent or improper ; and this rule applies to all cases where the carjiage or cattle of a master is placed in the care and under the management of a servant a rational agent. The agent's direct act is not the direct act of the master. Each blow of the whip, whether skilful and careful or not, is not the blow of the master ; it is the voluntary act of the servant; nor can it we think be reasonably said that all the acts done in the skilful and careful conduct of the carriage are those of the master, for which he is responsible in an action of trespass, to the same extent as if he had given them himself, because he has impliedly ordered them ; but those that were careless and un- skilful were not, for he has given no order, except to use skill and care. '* Our opinion is, that in all cases where a master gives the direction and control over a carriage, or animal, or chattel, to another rational agent, the master is only responsible in an action on the case ibr want of skill or care of the agent — no more ; consequently this action cannot be supported. " We should observe, that though the master in this case is taken to have ordered the driver of the engine to proceed at a great speed, it did not follow as a necessary consequence that it would impinge on the plaintiff's cattle. It might not have happened if the driver had seen the cattle sooner, or the cattle had heard the engine and got out of the way. The act, there- (6) See Maimd v. The Mon- (c) 2 H. Bl. 442. mouthshire Canal Company, 4 M. {d) 9 B. & C. 591, ante, p. 208. & G. 452. IN CASES OF TORT — CIVILITER. 213 fore, cannot be treated as a trespass on the ground that it was by necessary implication ordered to be done by the defendants — the principle on which flie case of Gregory v. Piper was de- cided. This is the simple case of an act done by the servant in the course of his employment, not specifically ordered by the master ; and though tlie injury by such an act be direct so far as relates to the servant, we have recently held that a master would not be responsible in trespass" (e). So it. has been held (/') that a railway conipanjr was not -Roe v. BiV- liable to an action of trespass for an arrest of the plaintiff bv *?",*/"'*' ^'^• /• ii rp /> I , f ,. '' Railway one ot tiie orncers ot tlie company (tor nonpayment ot an Company. excess of fare claimed, but not due), as there was no proof of any authority, either express or implied, given by the defend- ants, or of any ratification by them of the act done. The same principles which render a man liable to be sued in So, a man ail action of trespass for the wrongful act of his servant will jj^^tre'spas^s'''' also render him liable to be sued in that form of action for the for the act of wrongful act of one who is not, strictly speaking, his servant. °"^ "°' "^'^ Thus, where (//) the defendant, wlio, togetlier with a party ^^y*'^" ' of friends, liad hired a carriage and four horses, driven liy two y prwr[ '" postilions in the service of the owner of the horses, to go to Epsom, rode on the box of the carriage, and in going through a toll-bar, at which there was a crowd, called out to the postilion on the leader " go in there," pointing to a position in front of a gig in which the plaintiff was riding, which belonged to and was driven by M., and the postilion pushed his horses forward, and, in doing so, upset the gig and the plaintiff, and M. fell out. Some one in the carriage cried out "go on, go on," but M. got up, stoi)ped the horses and would not allow the carriage to pro- ceed, although the defendant offered to settle then, until the defendant gave his card, saying, that he would be answerable for all that had occurred if M. would allow him to proceed. The defendant was held liable iu trespass for the injury sustained by the plaintiff; although, according to the decision before ad- verted to in the case of Qiiarrnan v. Burnett {h), the postilions could not be considered as his servants: Erskine, J., saying, "The cases in wliich it has been decided that case will not lie against the hirer of a carriage and horses for the misconduct of the driver, not being his servant, do not apply here ; for this is an action treating the defendant as a co- trespasser, and is not brought against him as a master for the misconduct of his servant." An exception, however, to the general ride, which renders a Superior man responsible in a civil action for the tortious acts of those P"''''<= 111 1 1 • • 1 r> 1 • 1 ,• 7 7- officers not employed by or under ium, is to be found in the case of /jmohc liable for acta officers, such as the postmaster-general, the lords commissioners "f inferior (e) Gordon v. Rnlt,^ Exc. 365; to the company, with a view to a S. C. 7 D. & L. 87, ante, p. 211. coinproniise, was held not to be (/) Roe v. The Birkenhead, evidence of ratification by the Lancashire and Cheshire Junction company of the act done. Railway Company, 21 L. J., Exc. {g) M'LaughHn V. Prior, 4 M. 9 ; S. C. 7 Exc. 3G. In this case & G. 48. a letter, written by the solicitor (/*) Ante, p. 199. 214 MASTER S LIABILITY TO THIRD PERSONS, ETC. Lane v. Cotton. Wfiiljeld V. Lord Le Despencer. Nicholson v. Mouncey. of the treasury, the commissioners of customs and excise, the auditors of the exelicqiicr, &c., who are not liable for any negli- gence or misconduct of the inferior officers in tlieir several depart- raents(/i)- Tiie principh? upon which tlicir non-liability depends was settled in the year 1G99, in an action brought against the postmaster-seneral, for the loi^s of a letter containing exchequer bills, by the negligence of his sf^rvants and deputies : and three judges, against Lord Holt, held, that the plaintiff was not enti- tled to recover (i). The ground of the opinion of the three judges appears to have been, that the post-office establishment is a branch of the public police created by statute for purposes of revenue as well as for public convenience, and that the Govern- ment have the maniigement and control of the whole concern. It is, in short, a Government instrument, established for its own great purposes. The postmasters enter into no contract with individuals, and receive no hire, like common carriers, in pro- portion to the risk and value of tlie letters under their charge, but only a general compensation from (lovernment. The same question was again still more; elaborately discussed in a case in the time of Lord Mansfield (A), brought against the postmaster- general, to recover the auiouut of a bank-note stolen out of a letter by one of the sorters of letters, when the court adhered to the doctrine of the three judges, in Lajie v. Cotton, against the opinion of Lord Holt {I). And Lord Mansfield said, "The ground of Lord Chief Justice Holt's opinion in thiit case is founded upon comparing the situation of the i)ostmaster to that of a common carrier, or the nmster of a ship taking goods on board for freight. Now, with all deference to so great an opinion, the comparison between a postmaster and a carrier or the master of a ship seems to me to hold in no particular what- ever. The postmaster has no hire, enters into no contract, car- ries on no merchandize or commerce. But the post-office is a branch of revenue and a brancli of "police, created by Act of Par- liament. As a branch of revenue there are great receipts; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police, it puts the whole correspondence of the kingdom (for the excep- tions are very trifiing) under Government, and entrusts the management and direction of it to the Crown, and officers appointed by the Crown. There is no analogy, therefore, between the case of the postmaster and a common carrier " {m). Upon similar principles, the captain of a rnan-of-war has been held not responsible for damage done to another vessel by his ship, during the watch of the first lieutenant, who was on deck {ti) Cowp. 766 ; See Story on Agency, 319. The subordinates themselves, however, may be re- sponsible, Rowning v. Goodchild, 3 Wils. 443 ; S. CI W. Bl. 906 ; Stock V. Harris, 5 Burr. 2709, post. (?) Lane v. Cotton, 2 Lord Raym. 646 ; S. C. 12 Mod. 482 ; see Wititerhottom v. Wright, 10 M. & W. 109. (/f) Whitfield V. Lord Le De- spencer, Cowp. 754. (/) Page 764. (m) See Story on Bailm. s. 462; Story on Agency, s. 319, note 2. IN CASES OF TORT — CIVILITER. 215 and had the direction of the ship — the captain not being on deck, nor called upon by his dutj' to be so, as he did not ap- point the officers or crew, and hud no choice wliether he would serve with them or not, and had no power of dismissal over them. Tliey were, in fact, all servants of the same master (n). But this exception would not apply so as to exempt a person, who was a public officer, from responsibility for the act of one who loas his own servant. And, therefore, in Lord North's case (o), where it appeared that Kiny- Edw. 6 sold a quantity of lead, and appointed Lord North, who was Cbancellor of his Court of Augmentations, to take bond for pnyraent of the money, and Lord North ordered his clerk to take the bond, which was done, and the bond delivered to Lord North, who gave it back again to his clerk in order to send it to the clerk of the Court of Augmentations, but Lord North's clerk suppressed the bond : it was the opinion of all tlie judges of England, that Lord North was chargeable to the king. Another exception to the general rule above stated is to be found in that class of cases in which commissioners appointed under Acts of Parliament, for. local purposes, and acting gra- tuitously, such as commissioners of sewers (/>), paving commis- sioners ((/), navigation commissioners (»•), &c., and trustees of turnpike I'oads (s), have been held not responsible for damage done by persons acting under their orders, in carrying into effect the purposes for which they were appointed (/). In such cases the commissioners, &c., are held not responsible for the consequences of acts which they are authorized to do (m), if A liter, for acts of their own servants. Lord North's case. Public com- missioners, turnpike trustees, &c., not liable in certain cases. (n) Nicholson v. Mouncey, 15 East, 384. (o) Dyer, 161 ; see Boson v. Smififord, 3 Mod. 323; and see Wildes v. Norris, 22 L J., M. C. 4, as to how tar deputy clerk of the peace is liable for the negli- gence of his assistant, pursuant to 59 Geo. 3, c. 28. [p) Jones v. Bird, 5 B. & Aid. 844 ; and see Clayards v. Detliick, 12 Q. B. 439. {q) Leader v. Mo.rton, 2 W. Bl. 924; S. C. 3 Wils. 461 ; Go- vernor, Sf-c. of Cast Plate Manu- facturers v. Meredith, 4 T. R. 794; Hall v. Smith, 2 Ring. 156. (r) Allen v. Hayward, 7 Q. B. 968, note. {s) Sutton V. Clarke, 6 Taunt. 29; Harris v. Baker, 4 M. & S. 26 ; Duncan v. Findlater, 6 CI. & Fin. 903. \n R. \. Pocock, 17 Q. B. 34, it was held that trus- tees for repairing a road were notchargeable with manslaughter of a person who was accidentally killed in consequence of the road being out of repair, as their neg- lect of duty was not immediately connected with the death. (/) As to the proper mode of recovering from such commis- sioners salary due to officers ap- pointed by them, such as street- keeper by paving commissioners, see Boss v. Pearse, 10 C. B. 534; S. C. 2^L. M. & P. 21 ; clerk, Kendall v. King, 25 L. J., C. P. 132; Richardsoyi v. Corcoran, 7 Ir.C. L. Rep. 121 ; Hall v. Tay- lor, 27 L, J., Q. B. 311 ; S. C.l E. B. & E. 197; organist, Ed- wards v. Lowndes, 1 E. & B. 81. As to whether mandamus lies, see 1 Bail C. C. 141. Debt will not lie for salary due out of borough fund, ilddison v. Mayor of Preston, 12 C. B. 108. {u) Protection is sometimes given by Acts of Parliament to persons acting in pursuance of them. A person is entitled to that protection who acts bona fide and in tlie reasonable belief that he is pursuing the Act of Pariia- 216 MASTEU'S LIABILITY TO THIRD PERSONS, ETC. Hall y. Smith. done, so far as they are concerned, witli dne care and attention ; nor are they responsible for the negligent execution of orders properly given. If they exceed their powers, they are of course liable (a:) ; and so they are if they act wantonly and oppressively (?/), or mallcioush/ (z), or even carelessly and neg- ligently (a), in the exercise of their powers. The cases in which tiiese principles have been applied are numerous (i), but those principles cannot be better explained than is done by Lord Wynford, in his admirable judgment in the case of Hall v. Smith (c). That was an action on the case for negligently leaving a ditch or tunnel open, into which the yilaintift' fell and was in- ment, although he is really not 16 M. & W. 77. But where doing so : for, as observed by Pollock, C. B., in Hughes v. Buck- land, one who acts in perfect exe- cution of the Act of Parliament does not stand in need of protec- tion. The protection is required by hiin who acts illegally, but under the belief that he is riglit. See Parton v. Williams, 3 B. & Aid. 330 ; Hughes v. Buckland, 15 M. & W. 346 ; S. a 3 D. & L. 702 ; Huggins v. Waydcy, 15 M. & W. 357 ; Davis v. Curlim;, 8Q. B. 286; Smith v. Hopver,'9 Q. B. 1005 ; Kine v. Evershed, 10 Q. B. 143 ; Horn v. Thornborough, 3 Exc. 846 ; 5. C. 6 D. & L. 651 ; Gosden v. Elphick, 4 Exc. 445 ; 5. C. 7 D. & L. 194 ; Mun- daij V. Sluhbs, 1 L. M. & P. 675 ; seea]&o Kent\. Great Western Rail- way Company, 'i D.& L. 481 ; S. C. 3 C. B. 714, et cas. ib. cit. ; Booth V. Clive, 2 L. M. & P. 283 ; Read V. Coker, 13 C. B. 850; Arnold V. Hamel, 9 Exc. 408 ; Burling v. Harley, 27 L. J., Exc. 258. In Newton v. Ellis, 5 E. & B. 115, it was held that a contractor, under a local board of health, was entitled to notice of action under sect. 139 of the " Public Health Act," 11 & 12 Vict. c. 63. Where powers are given, by local acts, to trustees or commis- sioners, bona fides is immaterial, although it seems to be sufficient, to entitle them to the protection of the statute, if they are trus- tees, &c. de facto. Harrison v. Varty, Q. B., Trin. T. 1 845, cited by Parke, B., in Hughes v. Buck- land, 15 M. & W. 356; Braham V. Watkins, 4 D. & L. 42 ; .S'. C. protection is given to a person hlbng a particular character, he must, to entitle him>clf to the protection, fill that character at least de facto. It is not sufficient for him to tliitik he fills it, Hop- kins V. Crowe, 4 A. & E. 774. (.r) Jo7ies V. Bird, 5 B. & Aid. 844; Clayards v. Dethick, 12 Q. B. 439. (y) See per Gibbs, C. J., in Sutton v. Clarke, 6 Taunt. 43 ; per Bayley, J , in Boulton v. Crowther, 2 B. tV C. 709. (z) See Acland v. Buller, 1 Exc. 837 ; Walker v. Goe, 3 H. & N. 395, 404. (a) Jones v. Bird, 5 B. & Aid. 844; see 2 B. Si C. 711. The plaintiff' must atleast show negli- gence, Whitehouse v. Birmingham Canal Company, 26 L. J., Exc. 25. (b) See, in addition to the cases cited in Hall v. Smith, in the text, Boullon v. Crowther, 2 B. & C. 703; Duncan v. Findlater, 6 CI. & Fin. 903 ; Allen v. Hay- ward, 7 Q. B. 968, note; Pilgrim v. Southampton, Sfc. Railway Company. 7 C. B. 205, 228. ((?) 2 Bing. 156 ; see Parnaby V. The Lancaster Canal Company, 11 A. & E. 223. In Scott v. Mayor of Manchester, 1 H. & N. 60, Alderson, B., said, " Hall v. Smith goes too far; the person who selects the workmen is the party liable. Commissioners may get rid of liabiliry by making contracts; but if tliey employ their own servants to do the work, they will be liable for the acts of such servants." IN CASES OP TORT — CIVILITER. 217 jured. The defendants were the clerks to the commissioners for paving, &c. Birmingham, (who, by Act of Parliament, might be sued in the name of their clerks,) the surveyor, the con- tractor, and a workman, who was in the ditch when the acci- dent happened. The jury found a verdict for the workman, and against all the other defendants, but the verdict against the clerks to the commissioners was afterwards set aside, and a verdict ordered to be entered for them. And Lord Wynford said, " This action is not maintainable against these defendants (the clerks), unless it could have been supported against the commissioners. It was not disputed that the commissioners were authorized by the act to order the tunnel to be made, which occasioned the injury to the plaintiff. No negligence was imputed to the commissioners themselves. They had or- dered the tunnel to be made, and left the making of it to the defendants N. and K., the former of whom was the surveyor, and the latter the undertaker of the work. The accident hap- pened to the plaintift' from these persons not putting np rails, and not leaving lights during the night to prevent persons pass- ing along the road in which the tunnel was made, from tailing into it. These commissioners are charged with the execution of a public duty, for the performance of which tliey receive no emolument or advantage. They must employ such pei'snns as N. and K. to do the works which the Act of Parliament orders to be (lone, and the commissioners cannot be expected con- tinually to watch such persons whilst so employed. We think, under these circumstances, that the commissioners are not re- sponsible for the accident that has happened, and that the action cannot be maintained against their clerks, but the party injured must have his remedy against the agents of the com- missioners, by whose negligence it was occasioned If commi^sioners under an Act of Parliament order something to be done which is not within the scope of their authority, or are themselves guilty of negligence in doing that which they are empowered to do, they render themselves liable to an action, but they are not answerable for the misconduct of such as they are obliged to employ. If the doctrine of respondeat superior were applied to such commissioners, who would be hardy enough to undertake any of those various offices by which much valuable, yet unpaid, service is rendered to the country? Our public roads are formed and kept in repair, our towns paved and lighted, our lands drained and protected from inun- dation, our internal navigation has been improved, — ports have been made and are kept in order, — and many other public works are conducted by commissioners who act spontaneously. Such commissioners will act no longer if they are to make amends from their own fortunes for the conduct of such as must be employed under them. It would be much better that an individual injured by the act of an agent should endure an injury unredressed, than that the zeal of the most useful mem- bers of the community should be checked bj"^ subjecting them to a responsibility for agents, from whose services they derive no benefit, and who are seldom under the immediate control of their employers, whilst they are employed on the works they L 218 master's liability to third persons, etc. Jinii V. are ordered to do. The commissioners, taking the advice of Sm%ih. their surveyors and engineers, are to direct what tunnels or other works are to be made. Few commissioners know how sucli works should be executed : they ought not therefore to be answeruble for an imperfect execution of tliem, nor can it be expected tliat they shall attend day by day to see that proper precautions are taken against accidents, or get up in the night to see that lights are burned to warn passengers of the danger from temporary obstructions in the roads. If by taking their office of commissioners, they have not undertaken the perform- ance of these duties, vvith what justice can they be charged with the consequences of the neglect of them ? The maxim of respondeat superior is bottomed on this principle, that he who expects to derive advantnge from an act wiiich is done by another for him, must answer for any injury which a third person niay sustain from it. Thi-* maxim was first applied to public officers by the Statute of Westminster 2, c. 11, from the woids of which statute it is taken, ' Si custos gaolce non habeat per quodjiisficietur vel unde solvat, respondeat superior suits qui custodiam Jiujusmodi (jaolcB sibi cormnisit.' " The terms of the Statute of Westminster the second embrace only those who delegate the keeping of gaols to deputies, and were intended only, as Lord Coke tells us (rf), to apply ' to those who having the custody of gaols of freehold or inheritance, commit the same to another that is not sufficient.' The principle of the statute has, however, since been extended to sheriffs, who are responsible for their under-sheriffs and bailiffs, but has Dot been applied to any other public officer. Although the office of sheriff be now a burthensome one, yet they are entitled to poundage and other fees, for acts done by their officers, which, in old time, might be a just equivalent for their respon- sibility. In Bowcher V. Noidstrom (e), Lawrence, J., mentions the case of a captain of the Russell man-of-war, who was held answerable for the act of one of the lieutenants, who had com- mand of the watch, in runninfj down an Indiaman, whilst the captain WMs asleep in his cabin. When or by whom that case was decided I do not know ; but it is su|)ported by no other deci- sion that I am aware of, and itsauthoiity is shaken by the judg- ment of the case in which it is cited. The actions in the cases of Leader v. Moxonif), Jones v. Bird{g), and The Plate Glass Company v. Meredith (h), were not brought against the com- missioners, but against those who did the acts complained of. In the latter case(i) I adverted to ihat circumstance, as distin- ginVhiiig it from Sutton v. Clarke (/<). If the counsel who ad- vised the bringing these actions had thought they could have been maintained against the commissioners who gave the orders for the works that occasioned the injuries of the plaintiffs, the (rf) 2 Inst. 382. (g) 5 R. & Aid. 844. (e) 1 Taunt. 568. See Nichol- (h) 4 T. R. 794. son v. Motincpy, 15 East, t384, («) His lordship means Jones ante, p. 214, where the captain of v. Bird, a man-of-war was held noMiable {k) 1 Marsh. 429; S. C. 6 under similar circumstances. Taunt. 29. (/) 2 W. Bl. 924. IN CASES OF TORT — CIVILITER. 21 commissioners would have been included. Schinotti v. Bum- steed [1) is distinguisbable from this case; there the negligence was brought home to the commissioners of the lottery, who were the defendants, and they were compensated tor their ser- vices, and were bound to pay due attention to tlieir duty. The commissioners here had authority to make the trench which occasioned the damage to the plaintiff. The Plate Glass Com- pany V. Meredith, already referred to, shows that no action could be maintained against them for what they are authorized to do ; although an individual sustain an injury from what has been done. The passage into the plaintifl's premises in that case was rendered impassable with carts by the raising of pave- ment by the order of the commissioners. Lord Keiiyon says, * If this action could be maintained, every turnpike act, ))aving act, and navigation act, would give rise to an infinity of actions. The parties are without remedy, provided the commissioners do not exceed their jurisdiction.' In Sutton v. Clarke, the defendant, as a trustee under a turnpike act, who was duly authorized to make a drain, had ordered such drain to be cut in an improper manner ; he had, however, given this order after having taken the best advice that could be obtained. Lord C. J. Gibbs considered that circumstance as distinguishing the case from that of The British Plate Glass Compumj, where ■what was done could not be done in any other manner than that in which it was done; but still his lordsliip and the rest of the court held, that as the defendant acted according to the best of his judgment, and with the best advice, he was not answer- able for tlie injury ; and he added, ' This case is perfectly un- like that of an individual who makes an improvement in bis own land, from which an injury accrues to another ; such person must answer for the injury, b(;cause he was acting for his own benefit. In Harris \. Baker irn), the clerk to commis--ioners for making a road under an act which contained a clause direct- ing actions to be brought against such clerk for acts done by the trustees, was holden not to be liable to an action for an injury sustained in consequence of heaps of dirt being left by the side of the road, and no lights being placed to enable persons to avoid such heaps. In this case there was, as in that now before us, great negligence in those employed by the trustees.' " From these cases I collect that the law recognizes the principles which I ventured to state were founded in sound policy and justice, and that no action can be maintained against a man acting gratuitously tor the public, for the consequence of any act which he was authorized to do, and which, so far as he is concerned, is done with due care and attention, and that such a person is not answerable for the negligent execution of an order properly given." So where (wj by an act of Parliament for preserving Maryport Metcaifey. Ilethering- ton. (/) 6 T. R. 6'i6. Liverpool Dgclc Trustees, 26 L. J., (m) 4 M. & S. 27. Exc. 109 ; S. C. I H. & N. 439, (b) Metcalfe v. Jfetherington, though that case was reversed in 11 Exc. 257. See also Gibbs v. the Exchequer Chamber, 27 L. l2 ■s^o master's liability to third persons, etc. Gihhs V. Liverpool Dock Trus- tees. harbour, certain trustees, wl)o acted gratuitously, were ap- pointed for carrying out the act. The property in the harbour was vested in them, and they were empowered to elect and discharge a harbour-master, and other officers and servants connected with the harbour. The harbour-master was to direct the situation in which a vessel entering the harbour was to be moored. Tiie trustees were also empowered to make Jjye-Iaws for the management of the harbour, and impose tonnage-rates upon vessels using it, and to borrow money upon such rates, and apply the proceeds in payment of the interest of the money borrowed, and of the costs and expenses attending the carrying into execution the purposes of the act connected with the har- bour, and in reduction of the capital borrowed. But it did not appear that they had any funds applicable to cleansing the harbour. It was held that the trustees were not liable eitl)er for the acts of the harbour-master in directing a vessel to be moored in an improper place, wi)ereby it received damage ; or for an injury occasioned to a vessel by an accumulation of rubbish in the harbour. And it was also held that, although the trustees had almost an absolute discretion (with some exceptions) in the appropriation of the fund for the management of the harbour, they would not have been liable for the accident arising from the accumulation of rubbish in the harbour if they had been in possession of funds. However, in a subsequent and somewhat similar case (o), an action was brought against the trustees of the Liverpool docks, who were entitled to receive tolls and apply them (amongst other things) to cleansing the harbour; and the declaration alleged that they had funds sufficient to discharge all their lia- bilities, but that they did not cleanse the docks properly, and knowingly permitted them to be used in an unfit state, in con- sequence of which the plaintiff's vessel stuck in the mud at the entrance of the dock and was injured. The defendants were held Ymhlefor their own default (p) in not either cleansing the docks or closing them to the public when they knew their dangerous condition. And Coleridge, J., in delivering the judgment of the Exchequer Chamber, after distinguishing the case of Metcalfe v. HetJierington, said: " The case oi Parnalry v. Tlie Lancaster Canal Company (q) establishes that the de- fendants would have been responsible under such circumstances J., Exc. 321 ; S. C. 3 U.Si. N. 164. See also Frankleton v. Sherlock, 8 Ir. C. L. Rep. 90, where it was held that commissioners, acting under the " Irish Town Imjircvement Act, 1854," 17 & 18 Vict. c. 103, were not liable for the act of a watchman ap- pointed by them, who arrested the plaintiff on her way to church, and charged her with being an improper character ; on the ground that he was not ap- pointed to discharge any duty which belonged to them to dis- charge. (o) Gibbs v. Liverpool Dock Trustees, 27 L. J., Exc. 321 ; S. C. 3 H. & N. 1()4, reversing the judgment of the court below ; 26 L. J., Exc. 109; S. C. 1 H. &N. 439 ; see also Walker v. Goe, 27 L. J., Exc. 427; S. C. 28 L. J., Exc. 184; 3 H. & N. 395. ( p) In Metcalfe v. HetJiering- ton, it was the default of the har- bour-master. [q) 11 A. & E. 223. IN CASES OP TORT— CIVILITER. 2-21 if they had had a beneficial interest in the tolls when received ; and we do not think the principle of that decision inapplicable, because the defendants in the present case received the tolls as trustees. The duty, in our opinion, is equally cast on those who have the receipt of the tolls and the possession and manage- ment of the dock vested in them to forbear from keeping it open for the public use of every one who chooses to navigate it, on payment of the tolls, when they know it cannot be navigated without danger, whether the tolls are received for a beneficial or for a fiduciary purpose, and for the consequences of this breach of duty, we think they are responsible in an action." And where a public body, such as trustees or commissioners. Public body or a public companj^, have statutable powers conferred upon *'^*'"S '^"'^ them partly for their own profit and partly for the public in- terest, in such cases they would be liable for the acts of their servants, and would not be exempt on the ground that they were acting for the public benefit. As wliere(rj the corpora- Sco/tv. tion of a town were authorized by statute to carry on gaswoiks Mayor of to light the town, the profits to go part in improving the town, "'"^ "" ^'^' part in reducing water-rates, the corporation was held liable to make compensation for an injury arising from the negligence of their servants in laying down gas-pipes. Another exception to the general responsibility of a master Master not for the tortious acts of his servant is established by the cases 'j^'^J'^ V'f""" already considened in the preceding chapter (.s), in which it has torts of been held that a master is not responsible to his own servant for another. any injury happening to hira through the negligence or wrong- ful act of a fellow-servant. In order, however, to bring a case "within this exception it must, as we have seen, appear that both the servant injured and the wrongdoer were, at the time the injury was done, acting in tiie service of the common master, and also, tljat the wrongdoer was a person of ordinary skill and care. But where these circumstances concur, the party injured has no remedy against his master (^). Similar principles would, as we have also seen (u), prevent a servant from recovering from a fellow-servant for negligence ■whilst engaged in a common employment. (r) Seott v. Mayor of Manclies- 308 ; Southampton and Itcliin ter, 1 H. & N. 59 ; S. C in Cam. Floating Bridge, 6tc. Company v. Scacc. 2 H. & N. 204 ; S. C. 26 Southampton Local Board of L. J., EXC.40G ; see also Manley Health, 28 L. J., Q. B. 41. V. St. Helen's Canal Company, 27 («) Ante, p. 134, et seq. L. J., Exc. 159; S. C. 2 H. & {t) See Story on Ag. 453 P- (d) So in the case of auc- 3. Mr. Justice Story, in his work tioneers, Hanson v. Roherdeau, on Agency, s. 159, note 3, and Peake, 163; Franlchjnx. Laniond, 269, note 1, seems to doubt the 4 C. B. 637. authority of Thomas v. Bishop, (e) Smout V. Ilbei-ry,\Q TA. &. and, in the latter note, quotes an W. 1. American case to show that such (/) Blades v. Free, 9 B. & C. note.> as that in Thomas v. Bishop 167. are, in America, regarded as {g) Higgins V. Senior, 8 M. & drawn upon the drawee in his W. 834 ; see 2 Smith's L. C. official capacity. But in the case 225. And see ib. that the master he quotes the acceptance was himself may be liable if he were "as agent." And it would seem the real yiiincipal. But if tlie that the mode in which the bill written contract describe the per- in Thomas v. Bishop was addressed son who is really only an agent to the defendant, left it ambigu- as principal, the real princijiai ous whether the words "cashier," can neither sue nor be sued upon &c., were mere words of dcscrip- the contract. Humble v. Hunter, tion or not, and the defendant, 12 Q. B. 310. by accepting tlie bill ireneraJhj, (h) Thomas v. Bishop, 2 Str. showed that he considered the 955 ; see Heakij v. Story, 3 Exe. bill to be addressed to him per- •3-24 servant's liability to third persons, etc. I.rferre v. L loyd. ]^"iclio/l.i V Diamond. Hare v. Charles. Altliough party taking the bill knuw clerk to be actint; for his master. Lendbittery. Farrow. York Buildings Company," lie was held personallj' liable for the amount of tlie bill to an indorsee, although he proved that the letter of advice was addressed to the company, and that tiic bill being brought to their house, he was ordered to accept it, whicli he did in the same manner that he had accepted other bills. For the bill on the face of it, imported to be drawn on the defendant, and it was accepted by him generally, and not as servant to the company, to whose account he had no right to charge it till actual payment by himself. So where (i) a broker, who was employed to sell goods, drew a bill for the price on the purchaser, he (the broker) was held liable upon the bill, although it was contended that he merely drew as the servant of the seller, for, having put his name on the bill, all the legal consequences of the act attached to him as much as to any other person whose name was thereon. Again, where (A) a bill of exchange was directed to "Mr. James Diamond, ))urser, West Downs Mining Company," and accepted thus, "James Diamond, accepted per proc. West Downs Mining Company," Diamond was held personally liable upon it, as the legal effect of the acceptance was that he ac- cepted in his own right as jtrincipal, and as agent for all the other members of the firm, but as the bill was only directed to him he only was liable. So where {1} a bill of exchange was directed to " Mr. W. C," and "accepted for the eonii)any, W. C, purser," W. C. was held ])ersonally liitble: and Lord Campbell said, " Thomas v. Bl'thop, it appears, has been doubted on the other side of the Atlantic, but for a century it has been uniformly considered good law in this counti-y, and it is clearly in point. In Nicholls V. Diamond, the decision itself, and far the greater part of the reasoning in the judgments, are precisely what we now adopt." And in such cases it makes no difference that a party taking the bill, do so with full knowledge that a person whose name is on the bill is a mere servant. Thus, the agent to a country bank, to whom the plaintiff sent a sum of money in order to procure a bill upon London, and who, thereupon, drew a bill in his own name for the amount upon the firm in London, the two firms being the same, was held personally liable as drawer of the bill, although the plaintiff knew that he was agent, and sup- posed that the bill was drawn by him as such, and on account of the country bank, to which the agent paid over the money {m). And Lord Ellenborough said, " Is it not an universal rule that sonally, and not in his official character. See the observations of Patteson, J., in Davis v. Clarke, 6 Q. B. 16. See Jenkins v. Mor- ris, 1() M. & W. 877, which is a case the converse of Thomas v. Bishop. {i) Lefevre v. Lloyd, 5 Taunt. 749 ; and see Sowerby v. Butcher, 2 C. & M. 371. (/f) Nicholls V. Diamond, 9 Exc. 156. (I) Mare v. Charles, 5 E. & B. 978. See aho Penrose v. Martyn, 28 L. J., Q. B. 29, where the secretary to a joint stock com- pany (limited), was held person- ally liable upon a hill wliich he accepted as secretary, but omit- ting the word "limited," under 19 & 20 Vict. c. 47, s. 31. {m) Leadbitter v. Farrow, 5 M. & S. 345 ; and see per Gibbs, C. J., in Goupy v. Harden, 7 Taunt. 162. IN CASES OF CONTRACT. 22o a man who puts his name to a bill of exchange thereby makes himself personally liuble, unless he states upon the face of the bill that he subscribes it for another, or by procuration of another, which are words of exclusion. Unless he says plainly, 'lam the mere scribe,' lie becomes liable. Now, in the present case, although the plaintiff knew the defendant to be agent to the Durliam bank, he might not know but that he meant to offer his own responsibility. Every person, it is to be presumed, who takes a bill of tlie drawer, expects that his responsibility is to be pledged to its being accepted. Giving full efl'ect to the circumstance that the plaintitl' knew the defendant to be agent, still the defendant is liable like any other drawer who puts his name to a bill without denoting that he does it in the character of procurator. The defendant has not done so, and, therefore, has made himself liable." The rule illustrated by these cases is an inflexible one, and is Reason, by no means confined to bills of exchange, but applies to other written contracts (?«), and is founded upon the principle before adverted to, that parol evidence is not admissible to contradict or vary any contract which has been reduced to writing (o). Where written contracts are entered into by clerks or other cases where agents a difficulty frequently arises, from the mode in which J^ is doubtful they are worded, as to the meaning of the parties ; whetiier servant"^ they intended to contract for themselves personally or not. In bound per- such cases the general rule applies, that the construction of tonally, written documents is for the court. And it may be said, that, generally speaking, the onus of proving that a person who has signed a written document, merely acted as agent for some one else in so doing, lies upon the agent who would exempt himself from responsibility (/?). When the defendant covenanted "for himself, his heirs, Heldliablein executors, &c., on the part and behalf of" A. B., that A. B. i'-f/^f'"'"'- would pay a sum of money, the defendant was held personally liable (q). So where the solicitors of the assignees of a bankrupt, upon Burreiiv. whose lands a distress had been put by the landlord, gave a '^''"^''• written undertaking, thus, " We, as solicitors to the assignees, undertake to pay," &c., they were held personally liable (r). Again, where " C, on the part of N," agreed to let certain Tanner v. premises to P. for a term of years, and C. signed the agreement '^^^ "*"' but N. did not, C. was held personally liable to an action for not completing the lease (s). So, where " R. and F., of London, merchants," signed aLennardy. charter-party "by authority of and as agents for Mr. A. H. S., ^o*'"'""'' (n) Jones V. Littledale, 6 A. & Q. B. Ill ; Nortonv. Herron,! C. E. 486 ; Magee v. Atkinson, 2 M. & P. 648 ; S. C. Ry. & M. 229. & W. 440. See per Lord Wens-- (r) Burrell v. Jo)ies, 3 B. & leytlale, in Higgins v. Senior, 8 Aid. 47 ; and see Iveson v. Con- M. & W. 845. ington, 1 B. & C. 160; Hall v. (o) Ante, p. 32. Ashurst, 1 C. & M. 714; Watson \p) Smith's Merc. Law, 152. v. Murrel, 1 C. & P. 307. (q) A/jpleton v. Binks, 5 East, (s) Tanner v. Christian, 4 E. & 148. See Downman v. Williams, 7 B. 591. L 5 226 SERVANT S LIABILITY TO THIRD PERSONS, ETC. Agent held not liable, in Spill le V. Lavender. Downman v. Williams. Lewis V. Nicholson. F.x parte Buckley. Mahony v. Kekule. Lucas \. Beale. of Memcl," R. and F. were held personally liable for a breach oV\t{t). But where A., an auctioneer, entered into and signed an agreement as agent of B., and B. shortlj' afterwards signed it with the word;;, " I hereby sanction this agreement, and ap- prove of A.'s having signed it on my behalf," it was held that A. was not personally responsible (m). And, so where A. (an agent) made a promise in the following terms, " I undertake (on behalf of Messrs. E. & Co.) to i)ay," &c., it was held to be (upon the face of it) an undertaking as agent, and not to be binding upon A. personally, as there ap- peared to be no want of authority on his part to make such an undertaking, and no excess of authority in making it(.r). So, again, where solicitors to certain assignees, " on behalf of the as.signees," consented to do certain things, the solicitors were held not to be personally liable {y). And where a banker signed a promissory note, " I promise to pay," &c., "■ for C. M. P. and S., R. M." it was held that this did not give a separate right of action against the party signing (r). Again, where a contract was made in London, as follows, " Contract between Messrs. V. & T., Morlaix, France, and M. (plaintiff), London. M. engages himself hereby with Messrs. V. & 1\, IMorhiix, from, &c., till, &c., for the proper and mer- chantable cutting, mes-sing and preparing of French provisions, at Morlaix (as pork, beef and bacon), on receiving a free pas- sage out to Morlaix from London and back again, and wages of 30s. sterling per week. Messrs. V. & T. finding the requisite tools. Should any differences arise on account of M.'s inability or improper conduct, this contract is to be considered null and void, and M. has no claim for further wages nor free passage back to London.'' And signed, " For V. & T. Charles Kekule" (defendant). The defendant was held not to be per- sonally liable {a). And where the plaintiff and several others, being per- formers in the orchestra at the opera, Covent Garden, had a claim against the defendant for thirteen nights' salary, and negotiations took place in the green-room of the theatre, the plaintiff acting on behalf of himself and the other performers, and the ])laintiff signed the following document, "The gentle- men of the orchestra, &c., are willing and hereby pledge them- selves to continue their services and attend their duties provided {t) Lennard v. Robinson, 5 E. & B. 125 ; see also CooJce v. Wil- son, 2Q L. J.,C. P. 15; S.C. 1 C. B., N. S. 153; Parker v. Win- low, 27 L. J., Q. B. 49 ; S. C. 7 E. & B. 942. (u) Spittle V. Lavender, 2 Brod. & B. 452 ; see Bowen v. Morris, 2 Taimt. 374. (ar) Downman V. Williams, 7 Q. B. 103; see the American cases cited in Story on Ag. 154. («/) Lewis v. Nicholson, 18 Q. B. 503. (z) Ex parte Buckley, 14 M, & W. 469. {a) Mahony v. Kekule, 14 C. B. 390; S. C. 23 L. J., C. P. 54; and see Green v. Kopke, 18 C. B. 549, that in all cases it is a ques- tion of intention, to be gathered from the terms of the contract; whether the principal be a fo- reigner or not. IN CASES OF CONTRACT, 227 B. will guarantee the payment of the thirteen nights' due on the 5th u!t. Signed on behalf of the gentlemen of the orches- tra. C. Lucas." It was held to be a joint contract, and that the plaintiff could not sue alone for a breach of it ib). The remedy in England against a clerk or other agent, who Remedy professes to make a contract binding upon his master, but lias no vln'"^' *"' authority to do so, is either by an action for the deceit, alleging and proving the scienter, or probably on an implied contract that he had authority, but not by treating Iiim as principal (c). In America, however, it would seem that he may in some cases at least be sued as a principal upon the instrument (cZ). A question, however, more frequently arises as to the per- Servant not sonal responsibility of a clerk, or other servant, or agent to per- f^^^^l'^l^J sons otiier than liis master, or princijial, for money which has been third persons paid to him on account of his master. And the question is one for money of much importance, and some difficulty. The general rule onVccou™ ap})licable to cases of this sort, undoubtedly, is 7'espondeat of his master. superior. Payment to a clerk, or servant, authorized to receive the money (e), is payment to the master, who receives by the hand of his clerk. Generally speaking, therefore, when money is righlfulh/ obtained by, or paid to, a clerk, or other sei'vant, authorized to receive it on account of his master, any action to recover it back should be brought against the master (/"). And tliis rule is but just, for since, iu general, an agent cannot dis- pute the title of his principal ; and it is only in very s|)ecial cases (9) that he can set up yM,). So wliere a parish clerk extorted illegal fees, colore officii, it Steele y. was held that the plaintiff might recover them back from him, ^»"''»»'^- and need not sue the rector, for whom they were said to have been received (c). Neither does the doctrine above mentioned apply to cases in Nor where he which a servant or agent gets money into his bands by means o/" money by^ a trespass or other tort, committed by the orders of or in com- means of a pany with his master or principal. For all persons concerned of^jg'',\^oj°'^ in a tort are principals, and as the party injured might bring his action against the servant for damages sustained in consequence of his wrongful act, he is allowed to waive his right to proceed in that form of action, and sue for the money received by the wrongdoer. Upon this ground, where (d) the defendant by Tugman v, direction of his father, who claimed to be executor of the plain- "■'' tiff's wife deceased, went to her lodgings and took a large sum of money from a bureau, which he said belonged to his father as executor, and which he paid over to him accordingly : the de- fendant was held liable to an action for the money at the suit of the plaintiff, although it was contended that he merely acted as agent to his father, against whom the action should have been brought. And Tindal, C. J., said, " The defendant was a wrongdoer in taking the money, and would have been liable to the plaintiff in trespass. The plaintiff, however, waives the tort and sues the defendant for money had and received ; and the defendant cannot relieve himself from liability by paying over the money to another party, as he might have done if the original taking had been lawful. This circumstance distin- guishes the present case from Stephens v. Budcoch (e) ; for there the defendant received the money as agent for a party who was entitled to receive it, whereas here the receipt was altogether wrongful, and it must be taken with all its conse- quences." (a) 4 Burr. 1985. ante, p. 227. pell v. Poles, 2 M. & W. 867. (b) S/iowdon V.Davis, 1 Taunt. {c) Steele v. Williams, 8 Exc. 359; see Smith v. Sleap, 12 M. 025.' & W. 585; Falpij v. Manley, 1 (d) Tugman v. Hopkins, 4 M. C. B. 594 ; Wakefield v. Newbon, & G. .389 ; and see Sharlaiid v. 6 Q. B. 276 ; Davies v. Vernon, 6 Mildon, 5 Hare, 469 ; Edivards Q. B. 443; Gates v. Hudson, 6 v. Hodding, 5 Taunt. 815; Neate Exc. 346 ; see also Parker v. v. Harding, 6 Exc. 349. Bristol and Exeter Railway Com- (e) 3 B. & Ad. 354; see this pant), 6 Exc. 705, 706 ; Townson case, ante, p. 228. v. Wilson, 1 Camp. 396 ; Cliap- 2.32 servant's liability to thikd persons, etc. As to ser- vant's lia- bility to before pay- ment to his master, Cary v. Webster. Suller V. Harrison. But a clerk or other servant or agent who has received money on account of his master, and has not paid It over to him tTird persons bei'ore receiving notice not to do so, from or on behalf of the intervening person who paid it, may be liable to refund the money, and cannot siielter Iiinu^^elf from such liability under the maxim respondeat superior, if the circumstances of the case are such that had the money been paid over to the master lie would have had no defiance to an action to recover it: as in such case the servant, if obliged to pay the money over to the person entitled to it, would have a good defence to any action brought against him bv his master, and would not be estopped from disputing his title to the money. Thus, in Cary v, Webster {f), it was said by Pratt, C. J., that if the defendant had not paid the money over, the plaintiff" would have had his option either to charge him or the company ; as in the couimon case of payment to a goldsuiith's servant, who does not carry it to the account of his master, the party has an election to go against either : he nmy charge the ser- vant, because, till the money is paid over, the servant re- ceive it to his own use, or he va-dj pass by the servant and make his demand upon the master, because the payment to the servant is made in confidence of the credit given him by the master. So in an action { g) brought by the plaintiff, an underwriter, to recover back from the defendant, who was agent for the insured, Messrs. L. & S., resident at New York, a sum paid by the ])Iain tiff" upon a loss, supposed to be fair, but which turned out to be foul ; the defendant had passed the whole sum in his account witli Messrs. L. & S., and given credit to them for it against a sum in which they stood indebted to him, but had accepted no fresh bills nor given any fiesh credit to his prin- cipals, and had not paid the money over to them : it was held that the mere placing the money to the credit of the principals was not equivalent to paying it over; and that the defendant was liable to refund the money to the plain tifl's. In delivering judgment. Lord Mansfield said, "In general, the principle of law is clear, that if money be mispaid to an agent expressly for the use of his principal, and the agent has paid it over, he is not liable in an action by the person who mispaid it, because it is just that one man should not be a loser by the mistake of another, and the person who made the mistake is not without redress, but has his remedy over against the principal. On the other hand, it is just that as the agent ought not to lose he should not be a gainer by the mistake. And, therefore, if after the payment so made to him, and before he has paid the money over to his princijjal, the person corrects the mistahe, the agent cannot afterwards pay it over to his principal without making himself liable to the real owner for the amount. But the pre- sent case tuins upon this, that the agent was precisely in the same situation at the time the mistake was discovered as before. (/) Str. 4-80, ante, p. 229. {g) Buller v. Harrison, Cowp. d6S. IN CASES OF CONTRACT. 233 So where (//) it appeared that the defendant had received a Cox v. bar of silver fiom liis correspondent at Gibraltar, and sold it to •P''««''«^^- the plaintiff at a price calculated with reference to the number of ounces, which, • on assaj', it was supposed to contain, and it turned out afterwards that it contained fewer ounces than had been supposed ; the plaintiff was held entitled to recover from the defendant the money overpaid to him, as he had not paid it over to his principal, although he had forwarded an account to • him, in which lie had credited him with the full sum, but which was still unsettled. And Lord Ellenborough, C. J., said, "I take it to be clear that an agent who receives money for his principal is liable as a principal, so long as he stands in his original situation, and until there has been a change of circum- stances by his having paid over the money to his principal, or done something equivalent to it. Here it is admitted that no money has been paid over by the defendant to his principal, nor has there been any other tiling done by him to create a change of circumstances. The only question then is, whether the action lies against the defendant, considering it as if it were an action against the principal." So in the following case(i) a principal was held not entitled Murray to set off against a debt due from him to his agent a sum o^Mann. money received by the agent on account of his principal, but returned by him to the person who paid it before action brought, under circumstances which were held to justify the agent in returning the money. It was an action by a livery-stable keeper for the keep of a horse belonging to the defendant, to Avhich the defendant pleaded a set-off for money received by the plaintiff for the use of the defendant. The horse had stood some time in the plaintiff's stables, when, at length, the plaintiff sold it with a warranty for 125/., which sum the defendant claimed to set off against the plaintiff's demand. But it appeared that the horse, not answering the warranty, had been returned by the })urcliaser, to whom the plaintiff had returned his money before the action was brought ; and it was held that the plaintiff was justified in returning the money, which could not, there- fore, be set off against his claim for the keep .of the horse. On behalf of the defendant it was contended that the plaintiff, an agent, could not set up his own fraud in giving a false war- ranty, by which he was obliged to return the money, against his principal, the defendant; but " the answer is, "said Lord Wensley- dale, " that the principal never had a right to the 125/., except by the act of his agent in making a contract which was defeasible by reason of fraud. It is true that fraud does not make the contract actually void, but only voidable at the election of the party ; but the moment the purchaser chose to declare it void, the price was recoverable back from the plaintiff , and it ceased {h) Cox v. Prentice, 3 M. & S. 9 B. & C. 78. See, however, 34-4. It may be observed of both Paley on Ag. 388, 389; Story BuUer v. Harrison and Cox v. on Ag. s. 300 ; and Smith's Merc. Pi entice, that the principal was Law, 153. a foreigner. As to which, see (i) Murray v. Mann, 2 Exc. Story on Ag. s. 208 ; Paley on 538. Ag. 248 ; Thompson v. Davenport, 234 servant's liability to third persons, etc. When ser- vant liable to third persons for money received from his master to be paid to them. Howell V. Ball. to be money in his liands received for tlie use of the defendant. I am, theri'tbre, clearly of the opinion that the set-off was de- feated by the ])ro()t' of fraud. The plaintiff does not, in truth, set up his own fraud against the defendant, but' s;iys, 'I only received, that money subject to a defeasance, which has taken effect.' " A servant may also, in some cases, be liable to an action at the suit of a third person for n0n[)aynient of money which he has received from his master with orders to pay it to such third person. But in order to 7'ender him liable to such an action it is not sufficient that he should have received the money from his master with orders to pay it to a particular person, he must have done some act amounting to a specific appropriation of the money to the use of that person ; he must have assented to hold it to his use, otherwise there is no privity between them, and the servant is only responsible to his master (/i:), and such assent must of course be before action brought. This position is well illustrated by the case of Howell v. Batt (I). That was an action for money had and received. The plaintiff was a joint proprietor of a coach running from Exeter to London, and the defendant was office-keeper and s(^rvant to. C, the proprietor at Exeter. The defendant used, in his capa- city of office-keeper, at stated intervals to miike up the share- bills of the coach, and take sums of n)oney from a balance of C.'s, which he had in hand, and send them to the proprietors as their shares of the profits. On one occasion 23/. were due to the plaintiff, and the defendant made up a pncket ])urporting to contain that sum, and sent it to the plaintiff. The packet only contained 21)/., and the action was brought for the difference. No sum of money was expressly given to the defendant by C. for the plaintiff, but after the action was brought the defendant admitted that he had had the money of C, but said he had sent it to the plaintiff. The plaintiff Avas nonsuited on the ground that there was no privity between him and the defendant ; and a rule to set aside the nonsuit was afterwards refused, Parke, J., observing, " If it had been proved that the defendant had, as it were, attorned to the plaintiff and agreed to hold the nmney for his use, and not subject to the direction of C, the case would have been different." IN CASES OF TORT— CRIMINALITER. Master's We have seen in the preceding chapter that a nmster is in liability does many cases liable to answer criminally for the acts of his ser- KP°rv!.'!uvlt vants. Such liability on the part of the master does not, how- emption. ever, by any means, always involve the exemption ot the ser- (Ic) Paley on Ag. 394 ; see Williamsv. Everett, 14 East, 582; Lilly V. Hai/s, 5 A. & E. 548 ; and other cases cited, 1 Wnis. Saund, 210 h, note. And see Gidley v. Lord PaJmerstnn, 3 Brorl. & B. 275, where the secre- tary at war was held not liable to an action at the suit of a re- tired clerk at the war-office for his retired allowance, ahhough the secretary at war had re- ceived the money applicable to such allowance. {I) 5 B. & Ad. 504; see Bar- ron v. Husband, 4 B. & Ad. 611. IN CASES OF TORT — CRIMINALITER. 235 vant from a similar liability to answer adminaliter for his own acts, alt|iougli performed by him in the discharge, or supposed discharge, of his duty to his master, or in obedience to his master's commands. In criminal matters it is a general rule that every person must answer for his own acts, and the com- mand of no person can excuse an illegal act. A servant, there- Servant fore, is not, generally speaking, excused from liability to answer generally criminally for any violation of the law which he may commit, criminaliter, on the ground that he was only acting in obedience to his mas- for '"s own ter's comniiinds (?«). This is so obviously the case in regard to ^'^ *' offences which are mala in se, that no more need be said upon mala in se. the subject. But where tiie illegal act charged is merely malum Aiiter,some- prohibiium, the fact tliat the servant was acting in obedience to tin'es in his master's commands, would be strong evidence to rebut that mataprohi- primd facie inference of the existence of a vicious mind, which bita. generally arises from the mere doing an illegal act ; and in such cases it may sometimes happen tbat in this icay the command of the master may, in effect, exempt the servant from criminal responsibility for the consequences of illegal acts done in obe- dience to his master's orders. Thus, in the case of It. v. James {n). That was an indict- R. v. James. ment on the stat. 7 & 8 Geo. 4, c. 30, s. 6, for maliciously obstructing an airway belonging to a mine, with intent to hinder and delay the working of the mine. The defendants had acted under the orders of P., the lessee of an adjacent mine, and upon its being suggested by the counsel for the prosecution, that althouoh the defendants were acting under P.'s orders, still that an order to do wrong afforded no justification. Lord Abinger^ C. B., inquired, " If a servant did this by his master's order, and supposing bo7m fide that the master had a right to order it to be dune, would it not be too much to say that the servant is answerable as a felon for doing the thing maliciously when the malice, if there is any, is his master's, and not his own ?" Upon ■whicli, tiie counsel for the prosecution said, " Suppose a master ordered his servant to shoot a man, that would be no excuse for the servant if he did it." " But,'' said Lord Abinger, "that is an act wiiicli is malum in se. But if a master having a doubt or no doubt of iiis own rights, sets his servants to build a wall in a mine, they would, if he proved to have no right, be all liable in an action of trespass, but it would not be felony in the ser- vants. The rules respecting acts mala in se do not apply. If a master told his servant to shoot a man, he would know that that was an order he ought to disobey. But if the servant bond fide did these acts, I think they do not amount to an offence within this statute. If a man claims a right which he knows not to exist, and he tells his servants to exercise it, and they do so, (m) 1 Hawk. P. C. 3 ; 1 Hale, ante, p. 176, where Erie, J., said, P. C. 44, 516; 4 Blackst. Com. " If a man does by means of an 28. In 7Z. v. Parr, 2 M. & Rob. innocent agent an act which 346, both master and servant amounts to a felony, the em- were jointly indicted for receiv- ployer, and nol the hmocevt agent, ing stolen goods. is the person accountable for that (n) 8 C. & P. 131. And see act." K v. Bleasdale, 2 Carr. & K. 768 ; 236 servant's liability to third persons, etc. Unqualified servant sporting with qualiliod master. Cases under Hawkers Act. Thames Watermen's Act. Shopman selling as "fine gold" what was not acting bond fide, I am of opinion that tliat is not felony in them even if, in so doing, tliey obstruct the airway of a mine. , Wiiat I feel is this, that if these men acted bond fide in obedience to the orders of a superior, conceiving that he had the right which he claimed, tliey are not within tliis Act of Parliament. But if either of these men knew that it was a malicious act on the part of his master, I think then that he would be guilty of the offence charged." The prisoners were acquitted. Where a servant who was not qualified went out coursing with a master who was qualified, it was held that the servant conld not be convicted for using dogs to kill and destroy game(t>). And so an unqualified person who set traps to destroy game by order of his master, who was qualified, was held not liable to the penalties imposed by 5 Ann. c. 14(7?). But where an unqua- lified servant went out shooting with a master who was quali- fied, and fired a gun and shot game for him, he was held liable to the penalty imposed by 5 Ann. c. 14, for keeping and using a gun to kill game without a qualification {q), Bayley, J., saying, "The principle upon which the two former cases pro- ceeded was, that the using the greyhounds was the act of the owner and master, and not of tho;e who accompanied him. So, also, the trap being set by the master's orders and in his pre- sence, must be taken to have been set by him. But we cannot say that of using the gun, neither his hand nor his skill was applied to it. If we were to hold that the firing of the gun was the act of the master, he might in the same manner use twenty guns at the same time. I think we must consider the gun to have been used by the person who actually fired it, and, if so, the cases cited are inapplicable, and there can be no doubt that S. was properly convicted." Although an agent who takes round goods of several em- ployers, and offers them for sale, is bound to take out a licence under the Hawkers Act (r), yet it has been held that a servant or traveller, who is sent round by his employer to collect orders, in pursuance of which goods are afterwards sent, is not within that act(s). It has also been held, that a servant is liable to the penal- ties imposed by the Thames Watermen's Act, upon any person not being a freeman of the Watermen's Company, who shall act as a waterman, &c., on the Thames, although he was working for and paid by the owner of the barge, at a fixed weekly salary (J.). AVhere a shopman to a jeweller was indicted for obtaining money by false pretences, he having sold a chain, &c., which was hung in the window, marked "fine gold," when it was not gold, Alderson, B., said the indictment would not lie with- (o) R. v. Taylor, 15 East, 460 ; see also Lewis v. Taylor, 16 East, 49. {p) Walker v. Mills, 2 Br. & B. 1. ; see also Spicer v. Barnard, 28 L. J., M. C. 176 ; Padwick v. Kiug, 29 L.J., M. C. 42. (3) Ex parte Sylvester, 9 B. & C. 61. (O R. V. Turner, 4 B i. & ; Aid. 510; R. V. M'GUl , 2 B. & C. 142. (0 R. V. W-Knight, 10 B. & C 734. (0 R. V. . TihhU 4. e. & B. 888. IN CASES OF TORT — CRIMINALITER. 237 out showing guilty knowledge on the part of the defendant, who wijs merely acting as shopman, and the jury having found that there was no guilty knowledge, the prisoner was acquitted. "If," said the learned Baron, "the master had been indicted, the evidence might apply, because the jury would infer tiiat he was aware of the quality of the articles that he was selling, but it was different in the case of a shopman. Although, un- doubtedly, a gross fraud, it did not constitute an indictable offence " (u). There are also many cases which may properly be mentioned Servant in this place, but to which it is unnecessary to advert at any Jifc'^ment'for length, as tiiey scarcely come witliin the scope of the present breach of work, in which servants may be liable to indictment for cul- duty to his pable neglect of the duty undertaken by them towards their which In- eraplojer, where that duty also involved a duty to the public, voived pub- Such, for instance, as the driver of a carriage or the captain of '"^ ^^^^' a vessel, who, by negligent driving or navigation, causes the death of any person. In such cases, though the master may be liable in a civil action for the consequences of his servant's negligence, vet the servant must answer criminally for his own personal negligence {x). In a case, therefore, in which the ground bailiff of a mine, R.\. Haines. whose duty it was to cause proper air-headings to be put up to prevent the accunuilation of noxious gases, neglected to do so, and an explosion of fire-damp took place, which killed a person, for whose manslaughter he was indicted ; Maule, J., in sum- ming up, told the jury that if they were satisfied that it was the ordinary and plain duty of the prisoner to have caused an air- heading to be made, and that a man using reasonable diligence would have had it done, and that by the omission the death of the deceased occurred, they ought to find the prisoner guilty of manslaughter (3/). But it has been held that an engineer, /e. v. Barre«. under similar circumstances, could not be convicted of man- slaughter upon an indictment which did not allege a duty in him which he had neglected to perform (z). It would seem, however, to be sufficient to allege facts from which the law ■would infer such duty (a). Where a banksman, whose duty it was to place a stage on R. v. Hughes. the mouth of a shaft to receive a loaded truck run down to it on a tramway, neglected to place the stage, in consequence of which the truck fell down the shaft and killed a workman, the (u) R. v. Lamade, Centr. Cr. {y) R. v. Haines, 2 Carr. & K. Court, Feb. 4th, 1853. 368, the prisoner was acquitted. {x) See R. X.Allen, 7 C. & P. See also R. v. Pocock, 17 Q. B. 153 ; R. v. Green, ib. 15G, where 38. The neglect of duty must the captains of steamers were be immediately connected with indicted for the manslaughter of the death. persons killed by being run down (a) R. v. Barrett, 2 C. & K. by the steamers: but were ac- 343. See the form of the indict- quitted, as there was no proof of ment in the note to R. v. Haines, any personal act, and see R. v. ubi supra. Taylor, 9 C. & P. C72. (a) R. v. Hughes, infra. 238 servant's liability to third persons, etc. Indictments for nui- sances. Punishment of persons employed on railways guilty of misconduct. 3 & 4 Vict. c. 97, s. 13. banksman was held guilty of manslaughter (b). In that case Lord Campbell said : " It was ihe duty of the prisoner to place the stage on the mouth of the sliaft. The death of the deceased was the direct consequence of tlie omission of the prisoner to perform this duty. It the prisoner, of malice aforethought, and with the premeditated design of causing the death of the de- ceased, had omitted to place the sta^e on the mouth of the shaft, and the death of the deceased hud thereby been caused, the prisoner would have been guilty of murder. According to the common law form of an indictment for murder by reason of the omission of a duty, it was necessary that the indictment should allege that it was the duty of the prisoner to do the act, or to state facts from wliich the law would infer this duty(c). But it has never been doubted that if death is the direct conse- quence of the malicious omission of the performance of a duty (as of a mother to nourish her infant child), this is a case of murder. If the omission was not malicious and arose from negligence only, it is a case of manslaughter. It has been held that to make the captain of a vessel guilty of manslaughter in causing a person to be drowned in running down a boat, proof of a mere omission on his part to do the whole of his duty is not . sufficient (rf). But there is no authority for the position that without an act of commission there can be no manslaughter; and, on the contniry, the general doctrine seems well estabhshed that what constitutes murder being by design and of malice prepense constitutes manslaughter when arising from culpable negligence." Moreover, many instances are to be found in the books of cases in which servants and workmen have been joined with their masters and employers in indictments for nuisances; some of which, by way of example, are referred to in the note (e). The performance of their duties to their masters by servants of railway companies are enforced by Actof Parliament. Thus in the Act for Regulating Railways (/), there is, for the pro- tection of the yjublic, inserted a pa-ovision for the punishment of servants of railway companies who are guilty of misconduct. By that act it is enacted " That it shall be lawful for any officer or agent of any railway company, or for any special constable duly appointed, and all such persons as they nmj^ call to their assistance, to seize and detain any engine-driver, guard, porter or other servant in the employ of such company who shall be found drunk while employed upon the railway, or commit any (6) Ibid. 26 L. J., M. C. 202; S. C. 1 Bell, C. C. 2+8. (c) R. v. Edwards, 8 C. & P. 611 ; R. V. Goodwin, 1 Russ. on Cr. 563, note, 3rd edit. (d) R. V. J lien, 7 C. & P. 153. (e) R. V. Pease, 4 B. & Ad. 30; R. V. Scott, 5 Q. B.543; R. V. Charlesworth, 16 Q. B. 1012; R. V. Belts, 16 Q. B. 1022. See also Wilson v. Peto, 6 B. Moore, where a clerk who directed the workmen and superintended the erection of a building which oc- casioned a nuisance, was held liable as a co-defendant with the contractor. Thompson v. Gibson, 7 M. & W. 456. (/) 3&4 Vict. c. 97,8. 13. IN CASES OF TORT— CRIMINALITER. 239 offence against any of the b3'e-laws f,;/), rules or regulations of siicli eom|>any, or shall wilfully, maliciously or negligently do or omit to do any act whereby the life or limb ot any jierson passing along or being upon the railway belonging to such company or the works thereof respectively shall be or might be injured or endangered, or whereby the passage of any ot the engines, carriages or trains shall be or might be obstructed or impeded, and to convey such engine-driver, guard, porter or other servant so offending, or any person counselling, aiding or assisting in such oifence with all convenient despatch before some justice of the peace for the place within which such offence shall be committed withoutnny otiier warrant or authority than this act ; and every such person so offending and every person counselling, aiding or assisting therein as aforesaid shall, when convicted before such justice as aforesaid (who is hereby autho- rized and required, upon complaint to him made upon oath, without information in writing, to take cognizance thereof and to act sumumrily in the premises) in the di^ci'etion of such jus- tice be imprisoned with or without hard labour for any term not exceeding two calendar months, or in the like discretion of such justice shall for every such offence forfeit to her Majesty any sum not exceeding ten pounds, and in default of payment thereof shall be imprisoned with or without hard labour as aforesaid for sucli period not exceeding two calendar months, as such justice shall appoint; such commitment to be deter- mined on payment of the amount of the penalty, and every such penalty shall be returned to the next ensuing court of quarter sessions in the usual manner." "Provided always (//) that (if upon the hearing of any such Sect. 14. complaint he shall think tit) it shall be lawful for such justice, Justiceofthe instead of deciding upon the matter of complaint summarily, to pow(fre™to commit the person or persons charged with such offence fur send any case trial for the same at the quarter sessions for the county or place '"leaner wherein such offence shall iiave been committed, and to order that any such person so committed shall be imprisoned and de- tained in any of her Majesty's gaols or houses of correction in the said county or place in the meantime, or to take bail for his appearance, with or without sureties, in his discretion ; and every such person so offending and convicted before such court of quarter sessions as aforesaid (which said court is hereby required to take cognizance of and iiear and determine such complaint), shall be liable, in the discretion of such court, to be imprisoned, with or without hard labour for any term not exceeding two years." By the Act for the better Regulation of Railways (i), passed 5 &6Vict.c. a few years afterwards, after reciting the foregoing provision, ^^>s.i7. and that it was expedient to extend the same, it is enacted, tliat it shall be lawful for any officer or agent of anj' railway company, or for any special constable duly appointed, and all such persons (g) As to the making of bye- lidation Act, 1845," 8 & 9 Vict, laws, see the" Compaaies Clauses c. 20, s. 108, et seq. Consolidation Act, 1845," 8 & 9 (h) Sect. 14. Vict. c. 1(J, s. 127, et seq., and («) 5 & 6 Vict. c. 55, s. 17. the " Railways Clauses Conso- 240 servant's liability to third persons, etc. 5&6Vict ^s they may call to their assistance, to seize and detain any c. 55, s. 17. engine-driver, waggon-driver, guard, porter, servant or other person employed by tlie said or by any otiier railway company, or by any other company or person in conducting trattic upon the railway belonging to the said company, or in repairing or maintaining the works of the said railway, who shall be found drunk while so employed upon the said railway ; who shall commit any offence against any of the bye-laws (/r), rules or regulations of the said company; or who shall wilfully, mali- ciously or negligently do, or omit to do, any act whereby the life or limb of any person passing along or being upon such railway, or the works thereof respectively, shall be or might be injured or endangered ; or whereby the passage of any engines, carriages or trains shall or might be obstructed or impeded, and to convey such engine-driver, guard, porter, servant or other person so offending, or any person counselling, aiding or assisting in such offence, with all convenient dispatch, before some justice of the peace for the place within which such offence shall be committed, without any other warrant or authority than this act ; and every sue!) person so offending, and every person counselling, aiding or assisting therein as aforesaid, shall, when convicted upon the oath of one or more credible witness, or witnesses, before such justice as aforesaid (who is hereby authorized and required upon complaint to him made upon oath, without information in writing, to take cognizance thereof, and to act summarily in the premises), in the discretion of such justice be imprisoned, with or without hard labour, for any term not exceeding two calendar months ; or, in the like discretion of such justice, shall, for every such offence, forfeit to her Majesty any sum not exceeding ten pounds, and in de- fault of payment thereof shall be imprisoned, with or without hard labour, as aforesaid, for such period not exceeding two calendar months, as such justice shall appoint, such commit- ment to be determined on payment of the amount of the penalty, and every such penalty shall be returned to the next ensuing court of quarter sessions in the usual manner." Clauses also are to be found in various other Acts of Parlia- ment subjecting workmen and servants to penalties for offences against the act committed whilst in the supposed discharge of their duty to their employers. Thus, in the Act for Rebuilding Servants or Westminster Bridge (I), there is a clause which provides that wafun"in- i" ^^^^ "^ damage or mischief done to the bridge by any ship, juring West- lighter, &c., through the wilful negligence of any person having b*'d^'eiiable ^^^ Command of any such ship, lighter, &c., or any of the to'indemnify mariners or persons employed therein, the owner of such ship, master. lighter, &c., shall be answerable for the amount; and then follows a clause enacting, "That in case the owner of any such ship, lighter, barge, boat, float, raft or vessel shall be compelled to pay any penalty, or to make satisfaction for any damages by reason of any neglect or default done or com- mitted by his servants or mariners, or any of them, such ser- vants or mariners, and each and every of them, shall be liable to (k) Supra, p. 239, note (g). (l) 16 & 17 Vict. c. 46, ss. 15, 16. IN CASES OF TORT — CIVILITER. 24-1 paj' such penalty or damages (with the costs thereof) to such owner; and in case of nonpayment upon demand thereof, and oath made by such owner of the payment made by him of such penalty, satisfaction, or damages, and that the same, and the costs thereof, have not been repaid to him by such servants or mariners, or any of tiiem, although demanded, (such oath to be made before any one or more justice or justices ot the peace of the county or place where such penalty or satisfaction sliall have been re- covered,) the amount thereof, provided the same shall not exceed the sum of twenty pounds, shall be recovered in the same manner as any penalty is thereby directed to l)e recovered," i. e., under the provisions of the Companies Clauses Consolidation Act, 1845 (?n). And in the Metropolitan Building Act, 1855 (n), there is a pro- Workmen vision that if any workman, labourer, servant, or other person li"'^''"^-. employed in or about any building, wilfully, and without the BuUdmg' ^^ privity or consent of the person causing such work to be done, Act. does anything in or about such building contrary to the rules of that act, he shall, for each such offence, incur a penalty not exceeding 0O5. A distinction of considerable importance must also here be it is no an- adverted to, which obtains between civil and criminal pro- swerin ceedings for the consequences of negligence. In civil proceed- proceedings ings, as we have seen, no person can recover damages against a that person master for the negligence of his servant if he has by his own 'njurei or negligence contributed to or caused the injury complained of. tributed to But in criminal proceedings the converse of that proposition is his injury. true: and it is no answer to a criminal charge, as of manslaughter, that the deceased by his own negligence or improper conduct, or by being deaf or drunk, contributed to his own death (o). So highly does the law value human life, that every person who has contributed to destroy it, is responsible ; and it does not diminish that responsibility that others also have been guilty of negligence (jo). IN CASES OF TORT— CIVILITER, It is a general rule in cases of tort, that all persons concerned au wrong- in the wrong are liable to be charged as principals. It was !!°f„'^!^l^<, • I • 11 J ^~i7 '7 I / \ e 1 1 • principals. said in bands v. CnUd{q), "that the warrant ot no man, not ^ even of the king himself, can excuse the doing of »n illegal act ; cMid. for although the commanders are trespassers, so are also the per- sons who did the fact." A servant, therefore, can in no case Servant excuse himself from liability to an action founded upon a mis- ni^sfeasance feasance or positive wrong done to another person, upon the though in (m) 8 & 9 Vict. c. 16. captain of a man-of-war, having (n) 18 & 19 Vict. c. 122, s. 48. committed an act of trespass, (0) R. v. Swindall, 2 C. & K. which was afterwards adopted 230. and ratified by the Crown, was ( p) Ibid. ; and see R. v. held not liable to be sued by the Ilaines, 2 C. & K. 3G8. party injured, who liad liis re- (9) 3 Lev. 352. But see iBurora niedy against the Crown only v. Denman, 2 Exc. 167, where the (such as it was). M 242 SERVANT S LIABILITY TO THIRD PERSONS, ETC. his master's orders ; but not for mere non- feasance. obedience to ground tliat he acted merely in obedience to liis master's orders . ..__ ^^ ^.^^^ 1^.^ niaster's benefit (r). But for mere iiont'ea>ance or omission of'diity, a servant is not linble to answer in a civil action ut the suit of third persons, but only to his own master (s), who, ill accordance with the maxim ah-eady alluded to ' liespondeat superior,' is liable to answer for his servant's neglect "(/). This distinction between misfeasance and nonfeasance was thus stated by Lord Holt, in his celebrated judgment in Lane v. Cotton {u). " It was objected at the bar that they have tliis remedy against Breese (the servant). I agree if they conld prove that he took out the bills they might sue him for it : so tliey might anybody else on whom they could fix that fact ; but for a neg- lect in him they can have no remedy against him, for they must consider him only as a servant, and tlien his neglect is only chargeable on his master or principal ; for a servant or deputy guatenus such cannot be charged for neglect, but the principal only shall be cliarged for it; but for a misfeasance an action will lie against a servant or deputy, but not quatcnus a deputy or servant, but as a wrongdoer." Upon tlie principle that a servant is liable for a misfeasance, the defendant was held liable in Perkins v. Smith (a), which Perkins v. Smith. (r) Tn Pearson v. Grahatn, 6 A. & E. 902, Lord Denninn, C. J., said, " It might be very doubt- ful wbetlier a servant deliverinsj goods by bis master's order could be saitl to have converted those goods as against the assignees of bis master. Coles v. Wright, 4 Taunt. 198, rather seems to show that be could not." The case of Coles v. Wright, liowever, seems to belong to a dirlerent class of cases, ante, p. 229. It was an action for money had and re- ceived, and the defendant was held not liable, as he bad paid the money over to bis master. And in Pearson v. Graham, the defendant, who bad received no express orders as to the goods in question, but took upon himself, under a general autliority, to sell and deliver them at a time when, as it afterwards turned out, bis master bad committed an act of bankruptcy, was held liable to an action of trover, at the suit of his master's assignees. Any dis- tinction between the effect of a special and a general authority from the master to the servant, upon the liability of the servant would seem to be opposed to the cases of Perlciiis v. Smilh and Stephens v. Elwall, afterwards cited in the text; and which cases were not cited in Pearson V. Graham. (s) Gidley v. Lord Palmerston, 3 Brod. & B. 275, 285. {t) So the servant of a carrier is not generally responsible for the loss of a })arccl to the owner, who should look to the master, Williams v. Cranslouv, 2 Stark. 82 ; Cavanagh v. Sucli, 1 Price, 328, as the duty (the breach of which gives the right of action) arises out of a contract with the master. See Marshall v. The Yorlc, Newcastle, and Berwick Ruilwaij Company. 21 L. J., C. P. 34; S. C. 11 C. B. 655, where it was held that a servant might maintain an action against car- riers for loss of bis luggage, al- though bis master jiaitl the fare. See also Collelt v. North- Western Railway Company, l(i Q. B. 984; Longmeid v. Ilollowny, 6 Exc. 767 ; Dulyell v. Tyrer, 28 L. J., Q. B. 52. {u) 12 Mod. 488. (x) 1 Wils. 328 ; see Simovds v. Atlcinson, 1 H. & N. 146 ; and see Micliael v. Jlestree, 2 Lev, 172, ante, p. 184, where the ac- tion (for negligent driving) was brought against both master and servant. IN CASES OF TORT— CIVILITER. 243 may be regarded as a leading case upon ihis subject. In that case the facts were shortly tliese : — The plaintiff' was assi>)iiee of a bankrupt, and the defendant servant and riding-clerk to a creditor of the bankrupt ; the defendant went to the bankrupt's sliop to try and get liis master's money and found it sliut up, but the bankrupt delivered to the defendant certain goods, for which the defendant gave a receipt in his master's name, and then sold the goods for his master's use; upon which the bank- rupt's assignee brought an action of trover a^iainst the servant. It was ol)jected that the action was improperly brought against the servant, who acted wholly in this matter for his master, and that the conversion, whicli is the gist of tlie action of trover, was found to be to the use of the niiister. But after two arguments at the bar, the court gave judgment for thp plaintiff, Lee, C. J., saying, " The point is whether the defend. int is not a tort- feasor, for, if he is so, no authority timt he can derive from his master can excuse him from being liable in this action. The act of selling the goods is the conversion, and whether to the use of himself or another, it makes no difference. I am very well satisfied that this servant has done wrong, and that no authority that could be derived from his master, before or after the fact, can excuse him." The rule thus laid down was again acted on in Stephens v. El- Stephens r. iuaU{y), which was also an action of trover by the assignees of ■^'""^"• a bankrupt for goods which the bankrupt had sold after his bankruptcy to D., to be paid for by bills on H., for whom the goods were bought. H. was in America, and the defendant was his clerk ; the goods were delivered to the defendant, who , sent them to H. in America. At the trial it was contended, on the authority oi' Perkinit v, Smith, that the defendant was liable, although he merely acted as clerk to H. ; the judge, however, thought otherwise, and so directed the jury, who found a ver- dict for the defendant. But in the following term anew trial was granted. Lord Ellenborough, C. J., saying: "The only question is whether this is a conversion in the clerk, which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance and for his master's benefit when he sent the goods to his master ; but nevertheless his acts may amount to a con- version, for a person is guilty of a conversion who intermeddles with any property and disposes of it, and it is no answer that he acted under authority from another who had himself no authority to dispose of it. And the court is governed by the principle of law and not by the hardship of any particular case. For what can be more hard than the common case in trespass where a servant has done some act in a'^sertion of his master's right, that he shall be liable, not only jointly with his master, but, if his master cannot satisfy it, for every penny of the whole damage; and his person also shall be liable for it; and what is still more, that he shall not recover contribution " (z). {y) 4 M. & S. 259; see Green- S. C. 2 Smith's L. C. 2!)7, where uiaij V. Fisher, ] C. & P. 190. the subsequent cases will be (s) See, as to this point, M«rn/- found collected. See also Fare- weather v. Nixan, 8 T. R. 186; brother v. Ansley, 1 Camp. 343; m2 244 servant's liability to third persons, etc. Craticft V. While. Powell V. Hoi/ land. Servarit not liable with- out proof of actual con- version by him. Mires v. Solehay. Similar principles were again enforced in Crunch \. White {a). That was an action of trover for a bill of exchange which had been entrusted by the plaintiff to one Roberts to get disconnted. Roberts owed the defendant's mother, who was a coal merchant, and whose clerk the defendant was, a large sum for coals, and instead of getting the bill discounted, Roberts endorsed it and placed it in the hands of the defendant, who carried it to the credit of Roberts's account with his, the defendant's, mother. The defendant, when apprised of Roberts's fraud, refused to deliver up the bill ; but it was held that by so doing he ren- dered himself liable to the action of trover which was brought against him, although it was contended on his behalf that the action should have been brought against his mother ; Tindal, C. J., saying that any justification of the defendant's conduct, as the agent of his mother, fell to the ground on the authority of Perhins v. Smith and Stephens v. Elwall. And again, in Powell v. Hoyland {b). In that case the de- fendant, acting on behalf of Y. and Co., obtained from the plaintiff certain bills of exchange under circumstances which did not entitle Y. and Co. to them. These circumstances were unknown to the defendant at the time he obtained the bills from the plaintiff, but he was afterwards, and before he had delivered the bills to Y. and Co., informed of the facts, and told that his employers had no right to the bills. In spite of this information he refused to give the bills to the plaintiff, and de- livered them to his employers; and it was held that by so doing he became liable to an action of trover ; Lord Wensleydale ob- serving, " there is no doubt that, though the defendant did not receive the bills for himself but as the agent of Y. and Co., he may be liable in an action of trover, if the facts show a conver- sion by him ;" which they were held to do. Where, however, a servant merely refuses to deliver goods received from his master to any other person, without his mas- ter's orders, such refusal has been held not to amount to a conversion by the servant, and he has accordingly been held not liable to an action of trover (e). Upon this distinction depends the old case oi Mires v. Sole- bay (d). There the defendant, by command of his master, drove some sheep, which the plaintiff claimed to have purchased, on to his master's land, and then refused to deliver them to the plaintiff: he was held not liable in trover for so doing ; " for it being in obedience to his master's command, though he had no title, yet he shall be excused." Adamson v. Jervis, 4 Bing. 66. As to whether the court would interfere to protect the servant, see Gregory v. Slowman, 1 E. & B. 360. (a) 1 Bing. N. C. 414 ; and see Davies v. Vernon, 6 Q. B. 443. (6) 6 Exc. 67. (c) If he refuse to give up goods to the rightful owner, and rely on his master's title, he may be liable in trover ; aliter, if he merely give a qualified refusal and refer to his master, Lee v. Bobinson, 2;1 L. J., C. P. 249 ; Lee v. Bayes, 18 C. B. 599, 607. {d) 2 Mod. 242. IN CASES OF TORT— CIVILITER, 245 So where (e) the defendant, who was servant to an insurance Alexander v- company, had in his custody in a warehouse, of which he kept ^"""'^'J- the key, certain goods belonging to the plaintiff, saved from a fire at the plaintiff's house, and which had been carried to the warehouse by the servants of the company, and upon the plain- tiff demanding the goods, said he could not deliver them without an order from the company, he was held not liable to an action of trover, as the refusal to deliver the goods without an order from his master did not amount to a conversion of the goods. "If," said Holroyd, J., "we were to hold this refusal to be a conversion, it would go this length, that if a person were to call at a gentleman's house and to ask his servant to deliver goods to him, and the servant were to refuse to do so unless a previous application was made to his master, it would amount to a con- version on the part of the servant. In this case the goods came into the defendant's possession lawfully, and the refusal is only till an order is obtained from the defendant's employers. In Perkins v. Smith the defendant received the goods wrongfully at first, and the conversion was by an actual sale of them. Now it is clear that the authority of the master Avould not amount to a defence of that which was altogether a tortious act of the servant. The case of Mires v. Solebay is an authority in point." But a warehouseman {f) who refused to deliver goods out of wiUnn v. his warehouse to the rightful owner, without the direction of Anderton. the person from whom he (the warehouseman) received them, was held liable to an action of trover at the suit of the rightful owner, as such refusal was considered to be sufficient evidence . of conversion. In that case, how'ever, the defendant was a warehouseman, and it was considered that the defendant had by his conduct identified himself with the person from whom he received the goods; whereas, in Alexander v. Southey, the defendant was merely a servant, and referred the parties to his master (^). Where a servant of the law refused to give up goods which Verraiix. had been attached by legal process, saying that they were in the i^obinson. custody of the law, his doing so was held not to amount to a conversion so as to render him liable to an action at the suit of the owner of the goods (/i). There, however, the defendant remained passive, had he taken upon himself to decide, he might jjerhaps have rendered himself liable (i). We have already seen that if a servant is guilty of a fraud in As to ser- transacting his master's business, the master may be liable to an l^^^ly^^^' (e) Alexander v. Southey, 5 B. the contents of the parcel. & Aid. 247 ; and see Grylls v. (/) IVilson v. Anderton, 1 B. Davies, 2 B. & Ad. 514. In & Ad. 450. Day V. Bream, 2 M. & Rob. 54, {g) See Catterall v. Kenyan, 3 a porter who, in the course of his Q. B. 310. business, delivered parcels eon- {h) Verrall v. Robinson, 2 C. tainirif^ libellous publications, M. & R. 495. was held not liable to an action (i) Catterall v. Kenyon, 3 Q. B. for libel, as he was ignorant of 310. 246 servant's liability to third persons, etc. fraud in transacting his master's business. Public oificers in subordinate capacity per- sonally liable for misfeas- ance. ^ Deputy Post- master. action nt the suit of tlie party defrauded (i). And it -would seem to b(,' tile l)etter opinion that the servant also is liable, if he hnotnnglji commit a fraud in his master's business, to answer for it to tlie party injured, and cannot shelter himself under his master's responsibility, although authorized by his master to commit the fraud ; for, as observed by Mr. Justice. Story (A), it is an illegal act and contrary to sound morals. It is indeed laid down in Rolle's Abridgement (Z), that if the servant of a taverner sell bad wine knowingly, no action lies against him, for he only did it as servant. But that position has been fre- quently doubted by text-writers (?//), and would seem to be contrary to the principle of the cases before referred to, in which the command of the master has been held no justification of a misfeasance on the part of the servant. We have also, wliilst treating of the liability of a master for the tortious acts of his servants, seen that an exception to his genoal liability in such cases is established in the cnse of public officers in a superior capacity who are not in general responsible for the tortious acts of their subordinate officers. It by no means follows, however, that such subordinate officers arc not themselves responsible for their own misdeeds. On the con- trary, the exemption of their superior officers from liability to answer for their misfeasances, would seem to offer an a fortiori reason for holding them responsible for their own acts, other- wise wrongs committed by them might go altogether unre- dressed, since, upon public grounds. Government are not generally responsible for the misfeasances of their officers {n). Accordingly, in the cases before referred to, of actions against the postmaster-general for the loss of letters, we find it admitted on all hands that the servant, through whose negligence the letters were lost, would have been liable to actions at the suit of the parties injured, and the only question made was, as to the liability of the master. " As to an action on the case lying against the party really offending," said Loid Mansfield (o), " there can be no doubt of it ; for Avhoever does an act by which another person receives an injury, is liable in an action for the injury sustained. If the man who receives a penny to carry the letters to the post-office loses any of them, he is answerable, so is the sorter in the business of his department, so is the postmaster for any fault of his own." Upon this principle, in several cases, the deputy postmaster has been held liable to an (0 Ante, p. 188. See also Bedford v. Bngshaw, 29 L. J, Exc, 59, el COS. ih. cit. (k) Story on Ag. 310. (I) 1 Roll. Abr. 95; see Com. Dig. Action upon the case for a Deceit, B. (w; See Mr. Justice Cole- ridge's edit, of Blackst. Comm. vol. i. 431, note 11; Story on Ag. 310, note 1 ; Smith's Merc. Law, 155, note /( ; Paley on Ag. 399, note. (w) It has, however, been held that the captain of a man-of-war, who had committed an act of trespass in the public service, which was subsequently ratified by the ministers of state, was not liable to an action at the suit of the party injured, wbo had his remedy, sucli as it was, against the Crown onlv, Buroti v. Den- maii, 2 Exc. 107. (o) In Whitfield v. Lord Le Despenser, Cowp. 765. IN CASES OF TORT— CIVILITER. 247 action for the nondelivery of letters which it was his duty to have delivered, as well as the penalty for detaining letters imposed by statute (;?). There is also a large class of cases, which may be conveniently Ministerial noticed in this place, in which public officers in a merely minis- pui*'''' #€ri«/ capacity {q), have been held liable to answer in an action at for negli- thesuit of the party injured, for negligence in the performance of gence, &c. the duties cast upon them. Thus, for instance, a sheriff, whose Sherifl'; duty in many cases, such as the receipt, execution and return of writs, is that of a merely ministerial officer, is liable to be sued by the party aggrieved for any act of irregularity, misfeasance or nonfeasance in executing writs (r). But an action by the party grieved does not generally lie (s) hut not against an under-sheriff for a breach of duty in the office of H'"'^" sheriff; the action must be brought against the high-sheriff as for an act done by him(^), and if it proceeds from the default of the under-sheriff or bailiff, that is a matter to be settled between them and the high-sheriff (zt). A returning officer at an election of members of Parliament, Returning was held by the House of Lords, in the great case of Ashhy v. officer. White, to be liable to an action for maliciously refusing to receive the vote of a person entitled to vote (x). And the case oi Perring v. Harris (?/), which was an action Overseer, against an overseer of the poor, for maliciously omitting to insert the plaintiff's name in the poor-rate, Avhereby she was prevented from obtaining a licence to sell beer, was one of a similar nature. So lottery commissioners have been held liable to an action Lottery Com- for not ailjudging a prize to the holder of a ticket entitled to missionere. receive it {z). And so a collector of customs, appointed by the commissioners collector of customs. {p) Stock V. Harris, 5 Burr. Stroud v. Watts, 2 C. B. 929; S. 2709; Barnes v. Foleij, ib. 2711 ; C. 3 D. & L. 799 ; R. v. Schles- Rownins V. Goridchild, ib. 2715; inger, 10 Q. B. 670. S. C. 3 Vils. 443 ; 2 W. Bl. 906 ; («) Camerori v.Reijiiolds, Cowp. see Couch v. Sleel, 23 L. J., Q. B. 403. 126. (x) 2 Lord Raym. 938; S. C. (g) But no action lies against 1 Salk. 19; 6 Mod. 45; 1 Smith's persons acting in a judicial capa- L. C. 105 ; and see Cullen v. Mor- city, Groenvelt v. Burwell, 1 Lord ris, 2 Stark. 577; Pryce v. Bel- llaym. 454 ; see Miller v. Scare, cher, 3 C. B. 58; S. C. 4 D. & L. 2 W. Bl. 1 145 ; Doswell v. Impey, 238, which were similar actions, 1 B. & C. 163. and from which it would seem (r) Bac. Abr. Sheriff, M. ; that malice is a necessary ingre- Watson's Sheriff, 117. dient in such action, as the re- (.?) In certain cases it does by turning officer is partly a judicial Act of Parliament, see Cowp. and partly a ministerial officer, 405. And in Ireland all actions though it was formerly thought may, by 57 Geo. 3, c. 68, s. 3, be otherwise, see per Holroyd, J., brought against the under-sheriff, in Doswell v. Impey, 1 B. & C. uidess fur the immediate act of 165. the sheriff. {y) 2 M. & Rob. 5. (<) For the under-sheriff ought (z) Schinotti v. Bumsled, 6 T. to act in the name of the high- R. 646. sheriff, see Wats. Sheriff, 37 ; and 248 servant's liability to third versons, etc. Ciimmis- sioners of customs. under the statute 3 & 4 Will. 4, c. 51, was Iield liable (c) to an action at the suit of the party efrieved, for nonfeasance in the exercise of iiis office, viz., for refusings to si^n a bill of entry of certain goods without payment of an excessive duty. In giving; judgment in that case Lord Denman, C. J., said: — "The de- fendant is a public ministerial officer, and being so is responsible for neglect of his duty to any individual who sustains damage by such neglect. Schinotti v. Buinsted (h) is a strong authority to this effect ; the facts in that case respecting the conmiissioners of the lottery tending much more to raise a doubt whether the defendants had not a judicial discretion entrusted to them ; and in Lacon v. Hooper {c), which was an action against the com- missioners of customs for not making a certain order for the payment of money to which the plaintiffs claimed to be entitled under an act for the encouragement of the South Sea whale fishery, it was not questioned but that even they would be liable to the action if the neglect of duty were made out." Ward\. Lee. AVhere an act of Parliament provided that no matter or thing done, or contract entered into by the Commissioners of Sewers or by any clerk, surveyor or other ofiicer or person acting under their direction, should, if the matter or thing were done or the contract were entered into bond fide for the purpose of executing the act, subject them personally to any action or liability what- ever, and any expense incurred by them was to be borne and paid out of the funds under the control of the commissioners ; it was held that the effect of this was to absolve from personal liability to an action persons who bona fide did some act under the direction of the commissioners which but for that clause would subject them to an action (d). Where a vessel of the royal navy, towing two transports, anchored by order of the admiral, and the captain ordered the vessels in tow to hold on by their warps, and afterwards a breeze sprung up and one of the transports swinging to it came into collision with another transport in anotlier column, and the captain stated in evidence that after the order to hold on by the warps it would have been pi-oper for the master of the transport to let go his anchor if anything occurred which would have made it dangerous to his own or other ships if he did not do so : it was held in an action against the owner of the transport for damage done by the collision, that the judge was right in leav- ing it to the jury to say whether the master was not guilty of negligent seamanship in not dropping his anchor when the wind changed (e). Hodgkinson V. Fernie. (a) Barry v. Arnatid, 10 A. & E. 646. And see Barrotv v. Ar- naud, 8 Q. B. 595, where it was not even suggested that the de- fendant was not liable to be sued, if the duty claimed in that case was excessive. (6) 6 T. R. 646. (e) 6 T. R. 224. {d) Ward v. Lee, 26 L. J,, Q. B. 142. {e) Hodgkinson v. Fernie, 26 L. J., C. P:217. ( 249 ) CHAPTER VII. THE servant's CHARACTER. PAGE The Character — Defamation. 249 False and Forged Characters —Statute 32 Geo. 3, c. 56 275 THE CHARACTER— DEFAMATION. "The giving a character of a servant," says the learned author of the Treatise on Slander (a), "is one of the most ordinary com- munications which a member of society is called on to make, but it is duty of great importance to the interests of the public ; and in respect of that duty a party offends grievously against the interests of the community in giving a good character where it is not deserved, or against justice and humanity in either inju- riously refusing to give a character, or in designedly misre- presenting one to the detriment of the individual." It is clear, however, that in the absence of any specific agree- Master not ment to that effect, there is no legal obligation binding a bound to person who has retained another as a servant to give that person chlra^c'ter. any character at all on dismissal, and that no action will lie against him for refusing to do so. AVhere, therefore (i), an corro/ v. action was brought by a servant against her master for wholly ■^^'■''• refusing to give her any character whatever, on dismissal, by reason of which refusal one S. refused to hire her. Lord Kenyon said, the action could not be supported ; that in the case of domestic and menial servants there was no law to compel the master to give the servant a character ; it might be a duty which his feelings might prompt him to perform, but there was no law to enforce the doing of it. And where a master does give a discharged servant a cha- When given, racter(c), what he says or writes upon the subject to a person ti;e commu- bond fide inquiring is, in general, looked upon as a privileged privileged ; (a) Starkie on Slander, vol. i. 293. (6) Carrol v. Bird, 3 Esp. 201. (c) Where A., who had been servant to G., applied to D. for a situation, and D. agreed to take her, if, in answer to a letter written to G.,a satisfactory reply was received. D. wrote to G. for A.'s character, and G. an- swered the letter by post, direct- ing the reply to D. : but A., wishing to intercept the letter, went to the post office, stated that she was D.'s servant, ob- tained the letterand then burntit. It was held by the fifteen judges that this was larceny, R. \. Jones, 2 Carr. & K. 236 ; S. C. \ Den. C. C. 188. M 5 250 THE servant's CHARACTER. unless ex- press malice can be proved. Mere false- hood not bullicient. Implied malice not tutlicient. communication {(1), and no action wliatever can be maintained by the servant ( 1 1 • -IT complaints that time existed. 1 he jury round a verdict tor the plaintiti, made. and a rule nisi, which had been obtained by the defendant to enter a nonsuit, was afterwards discharged, on the ground that the cliaracter given by the defendant was proved to be untrue, and his conduct shown to be malicious by his officious inter- ference in going to the plaintiff's former master. In Pattison v. Jones [r] the defendant having discharged his PatUson v. servant, the plaintiff, and hearing that he was about to be en- •'<'"«*• gaged by B., wrote to B. and informed him that he had dis- charged the plaintiff for misconduct. B. having desired further information, the defendant wrote a second letter to him, stating the grounds on which he had discharged the plaintiff. It was information held, in an action by the servant against the defendant for the t^o^p^rson^*^ libel contained in the second letter, that assuming the letter to about to be privileged, it was a question for the jury whether the second ^^''^' letter was written bond fide, or maliciously with intent to injure ^""^ second the plaintiff, and the jury having found a verdict for the plain- tiff, the court refused to disturb it, Bay ley, J., stating it as his opinion that a master "may (when he thinks that another is about to take into his service one whom he knows ought not to be taken) set himself in motion and do some act to induce that other to seek information from and put questions to him. The answers to such questions, given bond fide with the inten- tion of communicating such facts as the party ought to know will, although they contain slanderous matter, come within the scope of a privileged communication. But in such a case it wUl be a question for a jury whether the defendant has acted hona fide intending honestly to discharge a duty ; or whether he has acted maliciously, intending to do an injury to the servant." In Kelly v. Partington (s) the plaintiff had been in the de- ^p% v. fendant's service as shopwoman but was discharged. S., who "''^^"gton. was going to hire the plaintiff, inquired her cliaracter of tlie J^iar?e"d tcT defendant, who charged her with having secreted money taken person about from his till, and also stated that when she came into his service ^° ^"^i she borrowed half a sovereign of her mother, and that before she had been there two months and before she received any wages, (r) 8 B. & C. 578. The action {s) 4 B. & Ad. 700. was brought on the second letter. 254 THE servant's CHARACTER. and repeated to relation of servant ; ■with con- temptuous grin. Slight evi- dence of malice. Fountain v. Boodle. False state- ment made to person about to hire. she paid her mother the money and made her a present of a" sovereign. The pkiintifi's brother-in-hiw, A., afterwards called upon the defendant for an exphmation of the words, when lie repeated the same charges, whereupon A., witli reference to the other statement, observed that the defendant no doiilit made entries in some book of the times at which lie p;\id his servants' ■wages, and that on reference to it he would probably find that he was mistaken in what he had asserted. Tiie defendant then went to his desk, took out a memorandnm-book and looked at it; after which he turned to A. and asked, "Do you know when she received her wages ?" A. answered '* No ;" but he would go by the defendant's account, as that was likely to be correct. The defendant then said, "If you do not know I am not going to tell you," and put the book into the desk again. A. upon this made some allusion to intended proceedings at law, and said he considered the case of theft as trumped up, to which the defendant made no answer, but "grinned" in a contemptuous manner at A.; and upon his I'emonstrating, and observing that if the plaintiff had not had friends she might have gone upon the town, the defendant said (speaking of him- self and his wife), " What is that to us ? " Evidence was then given in contradiction of the defendant's statement as to the time when the plaintiff' repaid the half sovereign. Upon thia case the defendant's counsel urged that the plaintiff should be nonsuited, on the ground that there was no proof of express malice. But Patteson, J., before whom the ease was tried, refused to nonsuit the plaintiff, and in the follbvving term an application on the part of the defendant for leave to enter a nonsuit was refused by the Court of Queen's Bench, as there were circumstances, though slight, from which malice might be inferred. In Fountain v. Boodle (t), the plaintiff, a young person who had been educated for a governess, was engaged bj' the defend- ant, Mrs. B., in November, 1839, asdaily governess to instruct young children, which employment she retained about fourteen months. During that period D., sister-in-law of the defendant, being in want of an instructress for her children, Mrs. B. re- commended the plaintiff' to her for that purpose ; and in Sep- tember, 1840, S. wanting a person to instruct his wife, a very young lady, in the several branches of a plain English educa- tion, Mrs. B. recommended the plaintiff to him for that purpose. From the 19th to the 23rd of November, 1840, the plaintiff' was prevented by illness from attending at Mrs. B.'s; and on her return to her employment there, a letter was given to her from Mrs. B., dated 19th November, informing her that her services ■would not be required beyond the 19th of December, but with- out assigning any reason. At the latter date she ceased ac- cordingly to instruct the defendant's children. In September, 1841, phtintiff" was about to be engaged by N., as instructress for her children ; and N. applied by letter to Mrs. B. respecting the plaintiff''"s character, in the following terms, " I shall be obliged by your informing me whether you consider her cora- (0 3 Q. B. 5. THE CHARACTER— DEFAMATION. 255 petent to undertake tlie instruction of little girls from nine to thirteen years of age (with assistance in music only), and if you were pei'fectly satisfied with her tuition ; also for what reason you declined her attendance ; and whether you consider her a person of good principles and ladylike deportment, of a mild but firm dis])osition. I will thank you to reply to this question at your earliest convenience : and for any other observations you may think pro])er to make, 1 shall feel obliged." To this application Mrs. B. replied in the following letter, the alleged libel : — " In answer to your inquiries respecting Miss F., I beg to say she had to instruct five of my children from three to nine years old; it is about a twelvemonth since T employed her, and she taught them as a daily governess for fourteen months, and engaged herself to teach eveiything but music, which she knew nothing of: and I parted with her on account of her incompetency and not being ladylike nor good-tempered. When I engaged her she recimimeiided a young friend of hers to teach the music, •whom I wtis much pleased with, and I discontinued her services when I took another governess." To this was added a post- script, " May I trouble you to tell her that this is the third time I have been referred to. I beg to decline any more -.ipplica- tions." N., in consequence, broke of}' her engagement with the plaintiff, which was the special damage complained of. The two applications alluded to in the postscript were those of D. and S. General evidence was given of the plaintiff's compe- tency, good temper and manners by her personal friends. There was no direct evidence of the ground of dismissal. The de- fendant's counsel contended that the communication was privi- leged : but Lord Dennian, C. J., refused to nonsuit the plain- Left to jury tiffj and left it to the jury to say whether, looking at the whole '" ^ay if case, there was sufficient proof that Mrs. B., in writing the knowingly. letter, had been influenced by some improper feeling towards the jilaintitf to make a false statement knowingly. And they found a verdict for the plaintiff. In the following term a rule for a new trial, on the ground of misdirection, and of the ver- dict being against the wt^ight of evidence, was applied for but refused. And Lord Denman, C. J., said, " A character Ar;na Jide given to a servant of any description is a privileged com- munication, and in giving it bona fides is to be presumed. Even though the statement should be untrue in fact, the master will be held justified by the occasion in making that statement, unless it can be shown to have proceeded from a malicious mind. Malice may be established by various proofs; one may be, that the statement is false to the knowledge of the party making it. Up to this point the summing up was not com- plained of: but, another part of it was brought before the court as objectionable. The misstatement here imputed was, that the defendant iiad discharged the plaintifJ' bj' reason of her faults enumerated in the letter. This could be known to nobody be- sides the defendant, but she might have shown the probability of that being the real motive from remonstrances made by her during the plaintiff's attendance, or complaints at its being ter- minated. I told the jury to the effect that if the plaintiff brought any evidence of wilful untruth, some evidence of the 256 THE SERVANT S CHARACTER. liumsey v. Webb. Information of servant's conduct given to master by a neighbour. Justification pleaded, but not proved or abandoned. contrary might be reasonably expected wlien tlie nature of the case allowed it. This is a general pi-oj)osition applicable to every t'orin of action and to evidence of all kinds." "The court wished for time to consider whether there was in the present case any evidence of wilful falsehood in the character given." His lordship then went through the evidence, and added, " Here was undoubtedly so)/ie evidence of the injurious cha- racter being dictated by some indirect motive. Of course, thbn, it must be laid before the jury. But the learned counsel con- tends that it is so extremely slight, that though uncontradicted in any particular, the jury ought to have found a verdict against its sufficiency. He observes that the privilege is but illusory, if circumstances so minute can be raised into proof of malice. Much more illusory would it be to hold that there was evidence on which the jury must decide, but that they must decide one way or the verdict cannot stand. We cannot place ourselves in their stead and impose our own judgment upon tiiem. They have advantages for attaining the truth which we do not possess, and are the proper tribunal for that ])urpose. They were bound to decide upon tiie weight of the evidence laid before them, and we cannot say that they have done wrong in the present instance." In a case where (z/) it appeared that the plaintiff was servant to W. C, whose wife called on Mrs. Webb, and asked how her (Mrs. C.'s) sister had behaved to the plaintiff during Mrs. C.'s absence in the country ; whereupon Mrs. Webb said, " Mrs. C, you are not aware what kind of servant you have ; if you were you would not keep her, for I can assure you she is often out with our married man ; she was out with him last Sunday morning, and when you were in the country she was out gos- siping till elcA^en or twelve o'clock at night; upon whicii the mistress discharged her servant; and it appeared that Mrs. C. had, on a previous occasion, asked Mrs. Webb to look after her servant. Coltman, J., left it to the jury to say whether the ■words were spoken with the honest intent of giving a neighbour important information of what v.as going on in his fomily, or whether it was done in an idle, gossiping and malicious spirit. They found a verdict for the plaintiff, and the court afterwards refused to disturb their finding. The defendant's conduct in putting a justification upon the record which he does not attempt to prove, and will not abandon, may be taken into consideration as provuig malice, and aggra- vating the injury. And if the defendant's conduct in that re- spect may at all affect the verdict, every other part of his con- duct may equally be laid before the jury; refusing to make re- paration for unjustifiable slander may have that effect ; and the malice proved to exist at the time of the trial, but connected with the subject-matter of it, may well be believed to have existed at the time of speaking the words (.r). (?() Rumsey v. Webb, Carr. & M. 104. (j) Simpson v. Robinson, 12 Q. B. 5 1 1. See further on this point, Wilson v. Robinson, 7 Q. B. 68 ; Warwick v. Foulkes, 12 M. & W. 507. THE CHARACTER — DEFAMATION. 257 The plaintiff was master of a national-school in a parisb ofGUpiny. which the defendant was rector, and also one of the managers -f""^^''"''- of the school. The defendant requested the plaintiff to teach a fgtte°''^Jstri- Sundaj'-school in connexion Avith the national-school, which he buted by a declined on account of the increased labour, and was, in conse- rector, about quence, dismissed. The plaintiff being about to set up a school master, not on his own account in the same parish, the defendant wrote and privileged, distributed in that and the adjoining parish a pastoral letter, in ^^^^"''''"'^ which he denounced the plaintiff's conduct as unchristian-like, and warned his parishioners against affording any countenance to the projected school, either by subscriptions, or by sending their children to it. It was held by the Exchequer Chamber that the communication was not privileged, and also that there was evidence for the jury of express malice. They also held that, in determining the question of malice, the jury might look at the libel itself (3/). The defendant (z) was deputy clerk of the peace, and, as such, Cooke v. submitted to the quarter sessions (a) his account of the expenses "'''^*^- of printing: the register of county voters; and, previously to ^/P^'y'^^'^'''' , .' *, - c , , ■'n •^7 p • of the peace this, he addressed a letter to the finance committee ot niagis- reporting trates, explaining why he had taken away the contract for conduct of printing from the plaintiffs (who were printers formerly em- to^nancT ployedj, stating therein that he thought it his duty to report committee, the circumstances, " particularly as the character and conduct of the persons who are chiefly employed by the county as printers and stationers are involved." The letter then stated circum- stances to show that, as appeared from a comparison with teims offered by other printers, the plaintiffs had demanded too high, terms upon grounds not supported by facts, and it concluded, " under tlie circumstances I have stated, it will be seen that I had no alternative but to adopt the course I have taken, rather than submit to what appears to have been an attempt to extort a considerable sum from the county by misrepresentation." It was held that, although the occasion was privileged, there was evidence /5'om tlie language of the letter, that there was express malice. In the last two cases it was also decided, as indeed had been Libel itself previously laid down (6), that in considering the question ofJI^^ked^at express malice, the libel complained of may itself be looked at, although it be a privileged communication. In Ireland (c), and America (cZ) also, it has been laid down that. Exceeding although expressions used beyond what the occasion warranted occasion, , ,f ' ..,■', . . ... ... evidence of would not divest a privileged communication 01 its privilege, malice. yet that such expressions would be evidence of malice in fact. But in the following cases (e) it was held that the facts proved Facts not were not evidence of malice. The plaintiff had been in the shovying ^ malice. iy) Gilpin v. Fowler, 9 Exc, Cr. M. & R. 573. 615. (c) Ruckley v. Kiernan, 7 Ir. [z) Cooke v. Wildes, 5 E. & B. C. L. Rep. (1857), 75. 328 ; S. C. 24 L. J., Q. B. 367. {d) Gassett v. Gilbert, 6 Gray, (a) Under stat. 2 & 3 Will. 4, 94. c. 45, ss. 55, 56 ; and 6 & 7 Vict. (e) Child v. Affleck, 9 B. & C. c. 18, ss. 49, 54. 403 ; and see Dixon v. Parsons, 1 (6) In Wright v. Woodgate, 2 Fost. & F. 24. 258 THK SERVANT S CHARACTER. Child V. Affleck. Reports heard since dismissal ; repeated to person wlio recom- mended servant. Gardner v. Slade. Answers to inquiries in- duced by defendant as to facts dis- covered since character given. servire of tliedefcndants, Mrs. A., having, before slie liired her, iiiiidc iiuiiiirios of two persons, who gave her a good character. The j)hiiMtifi' remained in the defendant's service a few months, and was afterwards hired by anotlicr person, who wrote to Mrs. A. for her character, and received tlie following answer, the alleged libel: — •' Mis. A.'s compliments to Mrs. S., and is sorry that in reply to her inquiries respectinji' E. Child, nothing can be in justice said in her favour. She lived with Mrs. A. but for a few weeks, in which short time she frequently con- ducted herself disgracefully ; and Mrs A. is concerned to add she has, since lier dismissal, been credibly informed she has been and now is a prostitute in Bury." In consequence of tliis letter the jdaintiff was dismissed from her situation. It furtlier appeared that after that letter was written Mrs. A. went to the persons who had recommended the plaintiff to her, and made a similar statement to them. But there was no evidence of the good conduct of the plaintiff at the period to which the letter referred. It was held that the letter was jjrivileged, and the other communications having been made to persons who had recommended the phuntiff, were not evidence of malice. The plaintif}' was nonsuited, and two of the learned judges (/") expressed ojiinious that Mrs. A. would have stopped short of her duty in withholding the information contained in the latter part of the letter. The plaintiff had been cook in the defendant's family, and left(^). M. applied for her character at a time wlieu Mrs. Slade was ill. Mr. S. answered the application, and gave the plaintiff a good character, whereupon M. hired her. Mrs. S. recovered, and having occasion to write to M. about another cook, asked about her dealings with respect to meat, &c., in the kitchen, and ended, " I mention this particularly, having discovered that I have been much imposed upon in this way a short tiuie ago." M. called on Mrs. S., and she in conversa- tion spoke the words complained of, which were to the effect that she suspected that the conduct of the plaintiff, when in her service, was not honest. After action brought she wrote to M. (/) Bajjleij and Liitledale, JJ. (g) Gardner v. Slade et ux., 13 Q. B. 79(). See also Owens v. Roberts, G Ir. C. L. Rep. (1856), 386, where Monahan, C. J., said, " We are of opinion that if a person, having an interest in ob- taining information as to the affairs of another person, makes a bona fide application to a third person for that purpose, and the latter in reply to such inquiry gives the information required, such a communication is privi- leged: for the fact of such an i nquiry having been made, not officiously but bona fide and by a p arson interested, imposed upon the person of whom the inquiry is made an obligation cither not to speak at all upon the subject, or if he does so, to speak the truth. And we are of opinion upon all the authorities, that in the case of a person making an in- quiry of another wlio is the ac- quaintance of the third person as to whom the inquiiy is made, and from his positiou likely to be acquainted with tiie affairs of the latter, and wliere tlie party making the inquiry is or is about to become a creditor of such third person, that such a communica- tion is privileged." THE CHARACTER— DEFAMATION. 259 saying, " Yon will remember that I imputed no dislionesty ; for of that I iiave no knowledge." The jury found that the defendant by her letter intended to induce inquiries on B.'s part as to the plaintiff, and found a verdict for the plaintiff. But the court afterwards ordered a nonsuit to be entered, on the ground that the communication was privileged, and there was no evidence of malice. And Lord Dennian said: — "I think the privilege which protects a master in givinga ciiaracter lasts as long as anything is discovered before unknown to the master : as, for instance, if I give a good character to a servant, and next day discover that the servant is dishonest ; surely in such a case it becomes my duty to communicate my discovery to the person to whom I have given the character." And Coleridge, J., added, " Nobody can doubt that." The plaintiff (/<) was secretary of the Brewers' Insurance i/arris v. Company, and being charged with misconduct was called upon Thompson. to attend a board of directors to explain, but declined to do so, Facts learnt whereupon the directors, after hearing the nature of the charges, of directors passed a resolution declaring him to have been guilty of gross communi- misconduct and dismissinjj him. The defendant, who was a'^^'®^*", T PI IIP I 111 another by director of tliat company and also ot another company called member of the London Necropolis Company, communicated the facts of l^oth boards, the plaintiff's dismissal from the service of the former company " for gross misconduct," at a board meeting of the latter com- » pany, and proposed a resolution to dismiss him from his employ- ment as tht'ir auditor, and in answer to an inquiry from the chairman, said the misconduct consisted in "obtaining money from the solicitors of the company under false pretences and ])aying a debt of his own with it;" and upon the plaintiff's appearing on a subsequent day with his attorney before the board to meet the charges against him, the defendant refused to go into them. It was held that such refusal was no evidence of malice ; as being consistent with bona fides, bona fides must be presumed until the contrary was proved. The defendant (i), on returning home late one night, heard AfaK*y v. that the footman had been giving away provisions, which he '"' had obtained from the cook, and thereupon dismissed them both. JlJ^^ster tel- ■»T • 1 1 1 1 /• 1 1 1 J ''"S one ser- Next morning they came together to the defendant and asked vanthewas his reason for dismissinof them ; he at that time declined to give discharged , , "ri ■ • i • •] • • because he any reason, but on anottier occasion, in answer to similar inqui- and another ries, told M. that he discharged him "because he and the cook had robbed had been robbing him," and told E. that he discharged her *^™- " because she and the footman had been robbing him." Each brought an action against the defendant, but both were non- suited, as it was held that there was no evidence of malice; and Jervis, C. J., said: — "The malice that will deprive a communication of this sort of the excuse arising out of the occasion of the speaking of the words must be such as to induce the court or any reasonable person to conclude that the occa- sion has be.'u taken advantage of to give utterance to an unfounded charge." (A) Harris v. Thompson, 13 C. (i) Manhy v. Witt, Eastmead B. 333. v. Witt, 18 C. B. 544. 260 THE servant's CHARACTER. Court to decide on priiilege. Jury on malice. Part privi- leged ; part not. How far communica- tions by and to other per- sons than masters are privileged. Toogood V. Spyring. From these cases the reader will liave deduced the rule "which prevails in cases of this sort, that it is the duty of the court to decide whetlier or no the communication containing the defannitory matter complained of comes within the class of privileijcd communications (A) ; and for the jury to decide as to the existence or non-e.vistence of any malicious naotives in the mind of the defendant in making it {I). Where part of the communication is privileged and part is not, the former, of course, will not protect the latter (///,). In most of the cases hitiierto mentioned, the aUeged defama- tion has taken place in some communication between a former master and aperson about to hire a discharged servant. But it frequently happens that defamatory opinions are uttered and expressions used with reference to the character of servants by their masters in communication with other persons, and by other persons in communication with their masters. It is im- portant, ther(!fore, to inquire how far such communications are within the protection which, as we have seen, the law throws around comuiunications made by the master to a person inquir- ing the character of a discharged servant : in other words, how far such communications are privileged. It must be observed, however, that, as the reason why com- munications of the nature last referred to are held to be privi- leged, does not arise from the existence of the relationship of master and servant between the parties defamed and defam- ing, but from principles of public policy and convenience : it would seem to be more consistent with those principles that the rule should be co-extensive with them, than that it should be confined to one particular class of cases, to which, in common with others, they are applicable. Accordingly, it will be found that a variety of communications come within the class which are held to be privileged, and that the cases already mentioned are to be regarded rather as examples of the application of a general rule to a particular class of cases, than as forming of themselves a class from which a rule maj"^ be deduced. The general rule is, indeed, far more extensive in its ap])lication, and cannot, perhaps, be better expressed than is done by Lord Wensleydale, in Toogood v. Spyring {n). " In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious iniless it is fairly made by a person in the discharge (f so7ne public or pri- vate duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned. In such cases (k) In Wenman v. Ash, 13 C. B. 8ir., Maule, J., said, " Though more a (|uestion of fact in each particular case than a question of law, the courts have assumed the jurisdiction of deciding it." See Cooke v. Wildes, 5 E. & B. 328, ante, p. 257 ; and Gassett v. Gil- bert, 6 Gray, 94. (/) But see Taylor v. Hawkins, ante, p. 251 ; Gilpin v. Fowler, 9 Exc. 623. (ot) Warren v. Warren, 1 C. M. & R. 250 ; Tiison v. Evans, 12 A. & E. 733 ; Clarke v. Roe, 4 Ir. C. L. Rep. 1. (n) 1 C. M. & R. 193, post, p. 269. THE CHARACTER— DEFAMATION. 261 the occasion prevents the inference of malice which the law draws from unauthorized communications, and affords a quali- fied defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the com- mon convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits." It is not, however, necessary here to follow out the applica- tion of the rule thus laid down to all the cases to which it has been applied io). It will be sufficient to lay before the reader those cases which bear more immediately upon the subject now under consideration, to which it has been held applicable. And in doing so, it will be convenient to consider, I. Communications made in the discharge of a public duty j II. Communications made in the discharge of private duty, and III. Communications made by a person in the conduct of his own affairs in matters where his interest is con- cerned. I. Communications made in the discharge of a public duty. To this class may be referred the cases in which communica- in course of tions made in the course of judicial proceedings (/>) have been p^^g^^jjjngg held to be privileged on the ground of public policy, which requires that whatever is given as evidence in a court of justice should be free from being made the subject of an action. False evidence may be punished by indictment for perjury. In Trotman v. Duim{q), tlie facts were shortly these : — The Trotmanv. plaintiff, on his return from transportation, served the defend- ant as journeyman baker, but was suddenly dismissed by him. He then claimed a week's wages, and to enforce this demand summoned the defendant before a Court of Conscience. While they were attending there, the defendant said of the plaintiff, " He has been transported before, and ought to be tran^^ported again. He has been robbing me of nine quartern loaves a week." And the plaintiff brought this action. It did not appear distinctly in what stage of the proceedings the words complained of were spoken, or to whom they were addressed. For the defendant, it was contended that the words liaving (o) As to Low far communica- v. Dixon, 4 Rep. 14 b. Want of tions from master to clerk are jurisdiction in the court before privileged; and whether a court which the proceedings take place, of equity would grant an injunc- appears to make no difference in tion to restrain a former clerk the privilege. See the cases from disclosing his master's cited in the note to Buckley v, dealings, see Gartside v. Outram, Wood, 4 Rep. 14 b (Thomas and 26 L. J., Ch. 113. Eraser's edit.) ; Lake v. King, 1 (p) See 1 Starkie on Slander, Wms.Saund. 131 b, and note (/<•) ; 239, 254; Revis v. Smith, 18 C. 1 Stark, on SI. 253. As to how B. 126 ; Ilendemon \. BrooniJiead, far a magistrate or judge is pri- 28 L. J., Exc. 360. Such com- viieged in his observations, see munications may, however, where Ktndillon v. Malt by, Carr. & M. the circumstances admit of it, be 402. made tlie sul)jectof an action for (?) 'i Camp. 211. malicious prosecution. See Cutler 262 THE SERVANT S CHARACTER. Slanderous words spoken to policeman, on giving servant in charge. Johnson v. Evans. been used in a court of justice, were privileged. And Lord Ellenborough, C. J., said, "If it had been proved that the defendant spoke these words in opening liis defence to the Com- niisir-ioners of the Court of Conscience, I should immediately have directed a nonsuit. This would have been a privileged couimunication, and tlie words could not be considered as spoken maliciously in the manner and form stated in the decla- ration. If the piuintitf had been robbing the defendant, the latter was justified in dismissing him immediately, and no claim to a week's further wages could exist. The Court of Conscience had to decide upon the propriety of the ground of dismissal. Therefore, if the defendant used the words in a judicial mode, for the purpose of his defence, he is justified. On the contrary, i{ he s]mke them ad ifiindiam, and in a calumniatory manner, they are actionable, though uttered in the room where the Court of Conscience was sitting." The defendant had a verdict. Slanderous words spoken to a constable on giving a servant into custody, on a charge of stciiling, have also been held to come within the same category. Thus, in Johnson v. Evans (r), which was an action for slander, the words were, "She is a thief, and tried to rob me of part of her wages." The plaintiff had been servant to the defendant. Upon a dispute taking place he discharged her, and some difference arising respecting the payment of her wages, he charged her with having at- tempted to cheat him respecting her wages, and used the words as laid, but the plaintiff failed in proving them to have been spoken at that time. Having', however, sent for a constable, in order to take her into custody, he used the same words to the constable when he came, to whom he meant to have given her in charge, but which in fact he did not do. It appeared from the evidence of the constable, that the words were addressed to him in his chanicter of constable, and in the course of the charge and complaint which the defendant made to him against the plaintiff. Lord Eldon, C. J., nonsuited the plaintiff, saying, that " Words used in the course of legal or judicial proceeding, however hard they mi^ht bear on the party of whom they were used, were not such as would support an action for slander. In this case they were spoken by the defendant under a belief of the fact, and when he was about to proceed legally to punish it. It would be a matter of public inconvenience, and operate to deter persons from preferring their complaints against of- fenders, if words spoken in the course of their giving charge of them, or preferring their complaint, should be deemed action- able." To this class may also perhaps be referred the cases already mentioned, in which comnninications made by a master respect- ing the character of a discharged servant have been held to be privileged, tiiough some may think that they more properly belong to the class next to be considered, viz. : — IT. Communications made in the discharge of a private duty. In this class may be included, in addition to the cases already (r) 3 Esp. 32 ; but see Smith v. Hodgkins, Cro. Car. 276. THE CHARACTER — DEFAMATION. 263 mentioned, in which a cliavacter giv^n to a discharged servant has been held to be a privileged communication, the cases in whicli masters, after having given a discharged servant a bad character, have repeated it to the friends or relations of the servant upon being called upon by them for an explanation of the bad cliaracter given, which has lost the servant a |)]ace. Such communications have been held to be privileged, when made bond fide ; though, as we have already seen in one such case (s), tile repetition of a bad character, when accompanied by a "• contemptuous grin," was held to be slight evidence of malice. In Weatherston v. Hawkins (t), the plaintiff brought an Weatherston action against his former master for publishing the following ^" ^""'*'"«- letter to C, the plaintiff's brother-in-law, respecting the plain- ^^'t" friend tiff's character as a servant. "Two days I gave him nioney of servant, to go info the city and buy books. When he canie home 1 repeatingbad desired hini to reckon up his account; he did so. But being ^,i^l^g^'^j"pgj_ one day more curious than I sometimes was, I looked over his son about to account, article by article, and in one, a book I well knew the ^"^■ price of, I found he had charged me one shilling more than it cost, and that shilling he kept in his pocket. The next day the very s;tn)e affair. And both these days my neighbour Metcalf was in my shop, and knows it well, and said he would not keep such a man a day, or something to that purpose. Two maga- zines he charged "two shillings for binding, the people received no more than Is. 8J., and say he paid no more. This I can prove." It appeared that the plaintiff had been in the service of the defendant, and was by him turned away. Rogers, to. whom the plaintiff was recommended as a servant, applied to the defendant for a character, which, not being good, Rogers declined to take him. Upon this C. called repeatedly upon the defendant, upon which the above letter was written, in order to prevent an action for the words spoken to Rogers by the de- fendant. But the present action was brought. It was, how- ever, lield by Lord iVlansfield, C. J., and other judges, that it would not lie, as, instead of the plaintiff's showing the libel complained of to be false and malicious, it appeared to be incident to the application by Rogers to the master of the servant. And the letter was written to the brother-in-law of the plaintiff' for the express purpose of preventing an action being brought («)• And so in Taylor v. Haivkins (v), it appeared that the plain- Taylor v. tiff was a shopman of the defendant, and that the defendant, '^««'**»*- havinii' a su>rjicion that he had embezzled money in the course Charge of ni . ° 1 ' ,• 1 I ■ TT' 1-1 ^ Qisnonesty 01 his employment, sent lor the plaintm, and, in the presence or made to (.*) Kellij V. Partington, i< B, & not written with a fair view of in • Ad. 700, .supra, p. 253. quiring a character, but to pro- (t) 1 T. R. 110. cure an answer upon which to (u) In King v. IVaring, 5 Esp. ground an action for a libel : and 15, Lord Alvanley refused to see 3 B. & P. 5!)2. allow a letter to be given in evi- (v) 20 L. J., Q. B. 313; S. C. dence, which had been procured 16 Q. B. 308 ; and see Harris v. by the plaintiff from tlie defend- Thompson, 13 C. B. 333, ante, p. ant by means of another letter, 259. 264 THE servant's CHARACTER. person about to hire ; and repeated to friend of servant.: Communica- tions by master to his other servants. Somerville v. Hawkins. Letter writ- ten by te- nant to his landlord respecting person who wished to be landlord's gamekeeper. Cockayne v. Hodgkinson. a friend, Mr. T. uttered the words complained of in the first count, which were, " You pocketed the os., and altered the cheque ; and you intended to alter the book, but, being busy at tiie time, it escaped your memory," and immediately after- wards discharged him. After his discharge, the plaintiff being about to enter the service of B., the defendant was referred to for a cliaracter, but, in consequence of wliat tlie defendant then stated to him, B. declined to take the jdaintitf into his employ- ment. Upon this the plaintiff's brother ciilled upon the de- fendant to inquire why he had given the plaintiff such a cha- racter as kept him from obtaining a situation ; upon which the defendant said, " What would you do yourself if any of your shopmen or servants robbed you 1" to which the plaintiff's brother replied, " I hope my brother has not been robbing you." The defendant then said, " He has robbed me ; I believe that he has robbed me for years past ; I can prove it from the circumstances under which he has been discharged by me." This last answer was what was complained of by the second count of the declaration. It was held that the occasion on which these communications were made was such as to render them privileged, and that the presence of a third party when they were made did not alone render them not so. In this class may also be included communications bond fide made by a master to his other servants respecting the character of a discharged servant. Thus, where {x) the plaintiff who had been in the service of the defendant, and had been dismissed on a Thursday on a charge of theft, came on the following Saturday upon the de- fendant's premises for the purpose of receiving wages which were due to him, and then had some communication with the de- fendant's servants, when the defendant said to them, "I have dismissed that man for robbing me. Do not speak to him any more in public or in private or I shall think you as bad as him ;" this was held to be a privileged communication, and the plaintiff, having brought an action for slander against his master, was nonsuited. Lord Truro ruling, that, in the absence of anj;^ other evidence of express malice on the part of the defendant, there was no case to go to the jury ; and this ruling was afterwards upheld by the Court of Common Pleas. Communications made by a tenant to his landlord respecting the character of a servant about to be hired by the latter have also been held to be privileged {y). Thus, where (z) the father of the plaintiff had been for some years gamekeeper to the Marquis of Anglesey, and the plaintiff wished to become his lordship's gamekeeper and overlooker of fences for a farm of which the defendant, an old man, was tenant; and the defendant {x) Somerville v. Hawkins, 20 L. J., C. P. 131 ; S. a 10 C. B. 583 ; see also Manbtj v. Wilt, ante, p. 259. (j/) As to how far a commu- nication by a landlord to his tenant reflecting on the charac- ter of the tenant's servants is privileged, see Knight v. Gihhs, 1 A. & E. 43. («) Cockayne v. Hodgkinson, 5 C. & P. 543. THE CHARACTER — DEFAMATION. 265 sent a letter to the Marquis informing him, amongst other things, that the plaintiff encouraged poachers, and sold game. Mr. Justice Parke left it to the jury to say whether it was the duty of the defendant to make communications to the Marquis in re- spect of any neglect of duty in his gamekeepers; and said that " If he was desired to do so by the noble Marquis, or his agents, any communication he made would be privileged, if he wrote it bond fide, and considering that he was doing his duty to the Marquis as his landlord. If it was the duty of the defendant to make the communication, the case I'alls within the principle of many other eases. To write of another that he is a thief is a libel; but if one gentleman asks another gentleman respecting a servant's character, and he writes that the servant was a thief, he is protected if he acts bond fide." His lordship also left the case to the jury on the question of malice, and they found for the defendant. It may also be proper to mention in this place a case of cuaver v. Cleaver y. Sai-raude {a), where, in an action for a libel con- ^arraude. tained in a letter written confidentially by the defendant to the Bishop of Durham, who employed the plaintiff as steward to his estates, to inform him of certain supposed malpractices on the part of the plaintiff, the judge who presided declared him- self of opinion that the action was not maintainable, as the de- fendant had been acting bond fide. In that case, however, it is to be observed, that it does not appear in what position the de- fendant stood with reference to the Bishop of Durham. If he was a perfect stranger to him it would seem, from the subsequent case of Coxliead v. Richards, to which it is now proposed to call the reader's attention, to be extremely doubtful whether the opinion of the learned judge would now be followed, since no duty or interest on the part of the defendant to communicate to the bishop what he did not knoiv to be true appeared. In Coxhead v. Richards (b), the facts were shortly these: — Coxheadv. The plaintiff was a mariner, and had the command of a ship ^'c'lards. belonginof to W., of which ship Cass, an intimate friend of the defendant, was mate. Cass wrote to the defendant reflecting in strong terms upon the plaintiff's conduct in a particular voyage, but requesting the defendant not to show the letter to W. On receipt of the letter, however, the defendant showed it to a naval friend, one of the elder brethren of the Trinity House, and also to Soames, an extensive shipowner, and, in accordance with their advice, communicated it to W., who immediately super- seded the i)laintiff in his command, and ceased to employ hira. The i)laintiff upon this brought an action for libel against the defendant ; and the defendant pleaded a justification, but failed to sustain it. And it did not appear that W. had instituted any inquiry into the charges contained in Cass's letter. On the part of the defendant it was contended that the action would not lie, on the ground that the communication of tlie letter to W. was privileged. And Tindal, C. J., told the jury that the (a) Cited by Lord Ellen- (6) 2 C. B. 569 ; see also borough in M'Dougal v. Cla- Blackham v. Pugh, 2 C. B. 611 ; ridge, 1 Camp. 268. Beimel v. Deacon, 2 C. B. 628. N 266 THE SEKVANT'S CHARACTER. occasion and circumstances under which tliiit communication took place, furnished a legal excuse for making it ; that the plaintiff, to entitle himself to a verdict, must show malice in fact, and the jury must find for the defendant if they thought the communication strictly honest on liis part, and made solely in the execution of what he believed to be a duty ; but for the plaintiti', if they thought the communication was made from any indirect motive Avhatever, or from malice against the plaintiff. The jury found for the defendant. And in the following term a rule nisi was obtained by the plaintiff for a new trial, on the ground of misdirection. The rule was twice argued in conse- quence of a difference of opinion amongst the judges; and, ultimately, the four judges before whom the case was argued differed ; Tindal, C. J., and Erie, J. (e), holding that the com- munication was privileged, as the defendant bond fide believed, and had reason to believe, the statement to be true, and that it was his duty to communicate it to the plaintifF's master ; and Coltman and Cresswell, JJ., holding that it was not privileged, as there was no duty which obliged the defendant to make the communication without ascertaining its truth. Where tlie directors of a society (d), in their annual report, published a "caution to the public" against trusting a person who had formerljr been employed to obtain and collect sub- scriptions for them, but had since been dismissed, such publica- tion was held to be justifiable only so far as it was made in good faith, and required to pi'otect the society and the public against the false representations of that person. The question, whether they acted in good faith and did not exceed their privilege, is for the jury. Philadelphia, In a recent case(e) in America, in which a railroad corpora- ^■c. Railroad ^Jqjj ^yr^g jjgj^j liable, in its corporate capacity, for a libel pub- V, Quigiey. lished by its agents in the course of its business and of their employment, it was held to be within the course of its business and the employment of the president and directors for them to investigate the conduct of their officers and agents, and report the result to the stockholders. It was also held, that in the absence of malice or bad faith, a report to the shareholders was privileged, but that such privilege did not extend to the pre- servation of the report and evidence in a book for distribution amongst the persons belonging to the corporation. And the corporation was held liable in damages for publishing it in that form. In Harrison v. Bush(f), a legal canon was propounded by counsel, and adopted by the court, that "a communication made bond fide upon any subject-matter in which the party Gasselt v. Gilbert. Directors' report. Rule in Harrison v. Bush. (c) And it is said that the opinion of Erskine, J., who re- tired from tlie bench, between the first and second argument of the case, was understood to be in favour of the defendant. See the note of the Reporters, 2 C. B. 583 ; and see ace. Davis v. Reeves, 5 Ir. C. L. Rep. 79. (d) Gasselt v. Gilbert, 6 Gray (Amer.) Rep. 94. (e) The Philadelphia, Wilming- ton and Baltimore Railroad Cor- poration v. Quigiey, 21 How. (Amer.) Rep. 202. (/) 5 E. & B. 348; see also Dickson v. Earl Wilton, 1 Fost. & F. 419. THE CHARACTER — DEFAMATION. 267 communicating has an interest, or in reference to which he has adufi/, is privileged, if mude to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable." III. Communications made by a person in the conduct of his own affairs where his interest is concerned. Communications of this sort have also frequently been lield Where mu- to be privileged, when made bona fide with a view to the inte- 'ual interest rests of both the writer and the persons addressed, for if a communication of this sort, which was not meant to go beyond those immediately interested in it, were the subject of an action for damages, it would be impossible for the affairs of mankind to be conducted. Upon this ground a letter written bj^ the WDoug c defendant to Messrs. W., bankers, charging the plaintiff, who c^^ridge. was a solicitor, with improper conduct in the management of their affairs, in which the defendant was himself interested, was held to be privileged (f). So a letter written bj'^ one part owner of a brig to another wuxon v. part owner, who had recommended the plaintiff as master, Ho'^^nson. reflecting upon the master's conduct, was held to be privi- leged ( T> witness ma journeyman carpenter, and iiad been in the employ ot a., a be evidence master carpenter, in the constant employ of the Earl of Devon of malice. at Powderham. The defendant was tenant to the Earl, and Toogood v. required some repairs at his farm, and plaintiff, pursuant to B.'s p^-I'^'-^'J- orders, went with another workman to the defendant's house for the purpose of doing tliem. The work was done in a negli- gent manner, and not to the satisfaction of B. During the progress of the work the plaintiff got drunk, and circuinstances occurred which induced the defendant to believe that the plain- tiff had broken open the cellar and obtained access to his cyder. B. had requested the defendant to inspect the work; and after- Mards, whilst the plaintiff and one T. were at work at Powder- ham, the defendant came up, and in his presence, charged the plaintiff' with breaking^ open the cellar, getting drunk, and spoiling his job. The plaintiff denied the charge, but defendant said he would swear it, and so would his men. In a subsequent conversation, in the plaintiff's absence, the defendant, in an- swer to a question by T., whether he really thought the plain- tiff had broken open his cellar, said he was sure of it^ and his people w ould swear to it. Defendant then went away in search of B., whom he saw, and to whom he repeated that the plaintiff had broken open the door, got drunk, and spoiled his job. B. thereupon went to the plaintiff, and told him that until his character was cleared he could not remain in the employ of the {p) Coward v. Wellington, 7 C (r) See Wright v. Woodgatc, 2 & P. 531. Cr. M. & R. 573. {q) Harrison v. Bush, 5 E. & (.s) Toogood v. Spyring, 1 Cr. M. B. 344-, overruling, to a certain & R. 181 ; and see Padmore v. extent, Blagg v. Start, 10 Q. B. Lawrence, 11 A. & E. 380; Tay- 899, in whicli case, however, lor v. Hawkins, 20 L. J., N. S., there was express malice. Q. B. 313, ante, p. 263. 270 THE servant's character. Toogood V. Earl. The next day B. investigated tlie charge, and told the Spyring. plaintiff' he Considered it not made out, and his character was cleared, and he might go to work again, but tiie jdaintiff refused to work, saying his character was not cleared, and brought his action against the defendant. It was held, that the communication to B. was privileged, and that the statement made to T. upon the second meeting in the plaintiff's absence was not, but that the statement made to the plaintiti', though in the pi'esence of T., was privileged. And in delivering the judgment of the Court of Exchequer, Lord Wensleydale, after laying down the principles which have been already cited (f), said, "Among the many cases which have been reported on this subject, one precisely in point has not I believe occurred ; but one of the most ordinary and common instances in which the principle has been applied in practice, is that of a former master giving the character of a discharged servant; and I am not aware that it was ever deemed essential to the protection of such a communication, that it should be made to some person interested in the inquiry, alone, and not in the presence of a third person. If made with honesty of purpose to a party who has any interest in the inquiry (and that has been very liberally construed) {ii), the simple fact that there has been some casual byestander cannot alter the nature of the transaction. The business of life could not be well carried on if such restraints were imposed upon this and similar communications, and if on every occasion in which they were made, they were not pro- tected unless strictly private. In this class of communication is no doubt comprehended the right of a master bond fide to charge his servant for any supposed misconduct in his service, and to give him admonition and blame ; and we think that the simple circumstance of the master exercising that right in the presence of another, does by no means of necessity take away from it the protection which the law would otherwise afford. Where, indeed, an opportunity is sought for making such a charge before third persons, which might have been made in private, it would afford strong evidence of a malicious intention, and thus deprive it of that immunity which the law allows to such a statement, when made with honesty of pur])ose ; but the mere fact of a third person being present does not render the communication absolutely unauthorized, though it may be a circumstance to be left with others, including the style and cha- racter of the language used, to the consideration of the jury, who are to determine whether the defendant has acted bond fide in making the charge, or been influenced by malicious motives. In the present case the defendant stood in such a relation with respect to the plaintiff, though not strictly that of master, as to authorize him to impute blame to him, provided it was done fairly and honestly for any supposed misconduct in the course of his employment, and we think that the fact, that the impu- tation was made in T.'s presence, does not of itself render the communication unwarranted and officious, but at most is a (0 Ante, p. 260. {u) Child V. Affleck, 9 B. & C. 403. See this case, ante, p. 258. THE CHARACTER — DEFAMATION. 271 circumstance to be left to the consideration of the jury. We agree with the learned judge, that the statement to T. in the plaintift''s absence was unauthorized and officious, and therefore not protected, although made in the belief of its truth, if it were, in point of fact, false." Where communications made with reference to the character Rules, where of servants do not come within the class of privileged communi- ^■.ommumca- cations, they are, of course, subject to the ordinary rules which privileged. govern actions for defamation. It is not, however, necessary here to enter into a full examination of those rules which have been already treated of in the work befoi'e referred to (x) : it is sufficient to state, that in actions for slander, the general rule is, that where the natural consequence of the words is a damage; as if they import a charge of having been guilty of a crime, or of having a contagious distemper, or if they are prejudicial to a person in an office, or to a person of a profession or trade, they are in themselves actionable ; in other cases the party who brings an action for words, must show the damage which he has received from them (y). From hence, it appears that an action for slander may be imputation maintained by a servant without proof of special damage, where affectingser- the imputation aifects him in his situation of servant, that is, character of where it is made with reference to his character or conduct as servant, such, and imputes to him the want of some qualification for or misconduct in his situation. Thus, in Seaman v. Bk/g{z), in the time of Charles I., it was seaman v. held that the words, "Thou are a cozening knave, and hast -^w- cozened thy master of a bushel of barley," spoken of a bailiff and servant in husbandry, were actionable ; for, said the court, though " true it is generally an action will not lie for calling one 'cozening knave,' yet where the words are {x) Starkie on Slander. Nei- in a dishonest manner in the de- ther is it necessary to enter into fendant's service," the Court of a discussion of what expressions Common Pleas held that the in- are, and what are not, actionable. nuendo did not exceed the limits It may, however, be remarked, which, according to the defini- that where the expressions used tions in the authorities, it is al- are capable of a harmless and lowed to make. See further on also of an injurious meaning, this point, 1 Wms. Saund. 243 the plaintiff is at liberty to point a, note {i) ; Griffiths v. Lewis, 8 Q. them by innuendo to the latter, if B. 841. But the innuendo must in their ordinary sense tiiey are not be too large, Day \. Robinson, capable of such a construction. 1 A.&E.554; Wheeler v. Haynes, Thus, in C/cggv. /.«/«-, 10 Bing. 9 A. & E. 286; see Williams \. 250, where the defendant, in writ- Gardiner, 1 M. & W. 245. ing to one of his friends, said of (?/) Bac. Abr. Slander, A ; 1 the plaintiff, " He is so inflated Stark, on Slander, 10. with 200/. or 300Z. which he has («) Cro. Car. 480 ; and see made in my service — God only Reignald's Case, Cro. Car. 563, knows whether honestly or other- where similar words were held wise — that," &c., and the plain- actionable when spoken of a de- tiff in his declaration explained puty clerk to a register. See the words by innuendo thus — also Wright v. Moorhouse, Cro. " Meaning to insinuate that the Eliz. 358. plaintiff had conducted himself 272 THE servant's CHAnACTEn. Must be con- nected with character. Lunihy V. Alltluy. Manner of connection must a))pear in the de- claration. J null's V. Brouk. S))ecial damage ; must be legal consequence of the words spoken. Vicars v. Wilcocks. spoken of one who is a servant and accomptant, and whose credit and maintenance depends upon liis faithful dealing, and he by such disgraceful words is deprived of his livelihood and means of maintenance, there is good reason it should bear an action, that he might have recompense for loss of his credit and means." But unless tiie imputation be connected with the servant's occupation, or show the want of some general requisite, no action can be maintained in respect of it. " Every autliority wliicli I have been able to find," said Bayley, B., in Lumhy v. Allday (a), " either shows the want of some general requisite, as honesty, capacity, fidelity, &c., or connects the imputation with the plaintiff's office, trade or business." In that case, therefore, where the defendant said of the plaintiff, who was clerk to the Birmingham and Staffordshire Gas Liglit Com- pany, " You are a fellow, a disgrace to the town, unfit to hold your situation for your conduct with whores. I will have you in the Argus. You have bought up all the copies of the Argus, knowing you have been exposed. You may drown yourself, for you are not fit to live, and are a disgrace to the situation you liold," Bayley, B., intimated a strong opinion that the chai nrovc'l was not actionable; because the imputation it containv,d did not imply the want of any of those qualities which a clerk ought to possess, and because the imputation had no reference to his conduct as clerk. And where the plaintiff complains of the imputation of scan- dalous conduct in his occupation, it is necessary for him to set forth in the declaration, in what manner it was connected tvith his occupation by the defendant (Z»). And, therefore, in an action for slander of a salaried superintendent of police, at Leeds, where the declaration did not show how the slander was connected by the defendant with the plaintiff's office, judgment was arrested (c). Where the words complained of by the plaintiff are not actionable jocrse, it becomes necessary for the plaintiff to allege and prove what is called special da?nage, i. e., some actual specific injury resulting from the use of the words. And it is also necessary for the plaintiff to prove special damage where it is alleged in a declaration for words which are actionable /«(?*<. company to conduct a branch bank, and the whole of the duties Banker's thereof were discharged by liim alone. He was paid 150/. a clerk taking year, for which he was bound to provide a place for carrying on iron safe. the business, and the jdace so provided was in his own house, where he carried on business as a wine merchant. The office was fitted up at the expense of the bank, and in it there was an iron safe provided by the bank, into which it was W.'s duty to put any money received during the day, which had not been required for the purposes of the bank. There were duplicate keys of this safe, one in W.'s custody and one under the control of the manager of the bank. W. furnished weekly accounts of monies received and paid by him, sliowing the balance in his hands, and of what notes, &c., the balance consisted. In September, 1855, W.'s accounts were audited, and the cash found correct, but although for two years afterwards he fur- nished the usual weekly accounts, no examination was made during, that time of the balances in his hands. In September, 1857, the manager having appointed a time for examining the cash in W.'s hands, he said he was about 3,000/. sjiort in his cash, and handed over to the manager 75-3/. 10*-., which he said was all the cash he had left, and which he took from a drawer in the counter, not from the safe. Afterwards, when before the magistrates on a charge of embezzling the 3,000/., he said, " I admit that I have taken the amount of money which appears in my weekly return, dated September 12, 1857, and entered as a deficiency of 3,021/. 9s. del." Tiie jury found W. guilty of larceny as a clerk in having stolen some money received from customers, which, before such stealing, had been placed in the safe and made the subject of a weekly account. And it was held by the Court for the Consideration of Crown Cases Reserved, (0 Spear's Case, 1 East, P. C. 582 ; R. v. Smith, 1 C. & K. 423. 568. In R. v. Walsh, 4 Taunt. (?;) Lavender's Case, Huiiting- 276, Heath, J., said, " That case don Lent Ass. 1793, twice con- went upon the ground that the sidered by the judges, East. T. corn was in the prosecutor's 1793, and Trin. T. 1793; see 2 barges, which was the same thing Russ. on Crimes, 160. as if it had been in his granary." (o) Chipchase's Case, 2 Leach, See also R. v. Reed, Dears. C. C. 699 ; 2 East, P. C. c. 16, s. 15, 263 ; and see Abrahat's Case, 2 \). 567 ; 2 Russ. on Crimes, 161. East, P. C. 569 ; Aldridge v. ( ;;) R. v. Wright, 1 Dears. & Johnson, 7 E. & 11, 885. B. C. C.431. (m) R. v. Goode, Carr. & M. 288 OFFENCES BV SERVANTS AGAINST THEIR MASTERS. that there was evidence that W., as his duty required, placed in the safe money whieli had been previously received from cus- tomers, that he thereby determined his own exclusive possessiou of tlie money, and that by afterwards taking some of such money out of the safe, animo furandi, he was guilty of larceny. It was also held, that the liniling, that VV. stole '■^ sonic money," was sufficiently certain, as it was not necessary that they sliould find that any specific amount was stolen on any particular day. R. V. Hard- And where some barilla, which tlie prosecutors had bought, "'^' Avas weiglied out in the ])resence of their clerk, and delivered to their carter's servant to cart, and he allowed other persons to take away the cart and disjiosc of the barilla for his benefit jointly with that of the other persons, it was held that he, as ■well as the other persons, was guilty of larceny at common law(5'). R. V. need. Again, where (r) a man sent his servant with his (the master's) cart to the railway station for some coals, which were put into the cart, and on the way home the servant, without authority from his master, disposed of sonu; of the coals to a third person, he was held to be guilty of larceny, as the coals, having been placed in the master's cart, were not in the exclusive possession of the servant, but constructively in the possession of his master. Person em- And SO a person employed to drive cattle to a particular ployed to place, who had no authority to sell the cattle, but did so, and who sold and Converted the money to his own use, having had a felonious pocketed the intent at the time he received charge of the cattle, was held """■"^y- guilty of larceny of the cattle. R. V. Stock. Thus, where '{s) the prosecutor saw the .prisoner at Bristol fair, and hired him to drive fifty sheep for him from Bristol to Bradford fair. This was on a Thursday, and tlie prisoner, with the sheep, was to meet the prosecutor on the following Sunday evening at the turnpike-gate, nearest to Bradford. The pri- soner had no authority to sell the sheep, but was only to drive them to Bradford, for which he was to receive two shillings and sixpence per day. The prisoner never was a servant of the prosecutor, but had been occasionally employed to drive sheep, and he never had authority to sell. The prisoner never went to Bradford, but sold the sheep, telling the purchaser he had authority to do so. The jury found that the prisoner at the (q) R. v. Harding, Russ. & Ry. & M. 217. 125. Wliere a master findingsome (r) R. v. Reed, 1 Dears. C. C. brass castinj. his employment. This decision was followed in 7?. v. Thor- ley (e). In that case the prisoner was servant of B. and Sons, carriers, who had a warehouse at Birmingham, his employment M as to look up goods to be carried by his master's waggons, but he had no authority to receive money, all monies being collected by a collecting clerk. On one occasion, a debtor of B. and Sons went into their countingf-house, jtart of the ware- house at Birmingham, to pay a debt, and seeing the prisoner standing at the desk, with some books near liini, supposing him to be a clerk authorized to receive money, paid him tlie money, for which he gave a receipt in the name of B. and Sons. The prisoner pocketed tiie money. But it was held, that as he had (b) If the servant be engaged, nient must be produced, or bis duties defined by a written (c) Authority to fhe customer instrument, that of course inust to pay to the servant would be be produced, and parol evidence sufficient, R. v. Aston, 2 C. & K. is not admissible to show tlie 413. terms of hiring or duties unless {d) R. v. Mellish, Russ. & Ry. notice to produce has been 80. given, R. v. Clapton, 3 Cox, (c) 1 Moo. C. C. 343. Semble, C. C. 126, wliere Patteson, J., tliis is the case cited by Alder- said he remembered two or three son, B., as R. v. Crawley, in R. v. unreported cases tried at War- Hawtin, 7 C. & P. 281. See wick, one before Coleridge, J., in Barrett v. Deere, Mood. & M. which it was held that under 200, and other cases, ante, p. such circumstances the agree- 159. LARCENY AND EMBEZZLEMENT BY CLERKS AND SERVANTS. 305 no authority to receive it, the case was not within the stat. of Geo. 4. And a similar decision was made in R. v. Haw- R.y-Hawtin. tin(f), where it was also held, that a servant, who, although not authorized to receive money for his master, did so, and pocketed it, could not be convicted of larceny of his master's money, as it had never been in his possession ; and not of larceny of the money of the person paying the bill, as he had entirely parted with the property of it. Upon similar principles i.t has been held(g), tliat a person R.v.Snow- hired to lead a stallion round the country, for which he was to *^" charge for each mare 30s., and not take less than 20,s., could not be convicted of embezzlement, although it was proved that he had not accounted for a sura of 6s., which was tlie whole charge he had made on one occasion for covering a mare, as it was hisduty to take not less than 20s., and this sum of 6s. was not received by him by virtue of his employment, but contrary to his duty. So where (h) A. was employed only as town traveller and col- -S- >'. Wilson. lector to go round and take orders from customers, and ent'er them in the books, and receive the money for the goods supplied in consequence; but he had no authority whatever to take or direct the delivery of goods from the shop. A customer having ordered two articles of A. he entered only one in the order book, but B., the prosecutor's carman, delivered both to the customer. An invoice was made out by the prosecutor for the first article, amounting to 6s. 6f/., and B. entered the second article as 4s. 6rf. A. afterwards received from the customer the whole lis., but only accounted to the prosecutor for 6s. Qd. It was held that this was not embezzlement, but larceny, as A. did not receive the 4s. iSd. for and on account of his master, but con- trary to and in breach of his duty towards that master ; and A. was acquitted. Upon similar principles it had been held (/), that a servant -R. v. //arm. authorized to grind corn, brought ivith a ticket, could not be convicted of embezzlement for pocketing money received for grinding corn brought witliout a ticket. But if a jierson be employed only on one occasion to receive Servant em- money, if, acting at that time in the capacity of a servant, he ceWe money, receive money and misappropriate it, it w ill be embezzlement, though only on one oc- casion. (/) 7 C. & P. 281, Alder- called. He did so, and the dray- son, B. man having pocketed tlie money (g) R. v. Snowhy, 4 C. & P. was convicted of embezzlement. 390. Of the authority of this In that case, however, the master case, however, Patteson, J., after authorized the customer to pay consulting Lord Wensleydale, the smaller sum to the servant expressed great doubts in R. v. And in R. v. Harris, 23 L. J., Aston, 2 C. & K. 413. In that M. C. 112 ; S. C. Dears. C. C. case a brewer's drayman, who 351, Lord Wensleydale said, was authorized to sell jiorter at that " as at present advised, he •J.?. Grf. a dozen, sold some at G*., thought he was right in R. v. saying he would call again for Snowley." the money. His master having {It) R. v. Wilson, 9 C. & P. 27. heard of it, told the purchaser he (/) R. v. Harris, 23 L. J., M. might pay the drayman when he C. 112 ; S. C. Dears. C. C. 344. 306 OFFENCES BY SERVANTS AGAINST THEIR MASTERS. Spencer's Case. And servant authorized to receive money from a particular class of cus- tomers, who received money from anotlier class witliin the act. Beechey's Case. Contractor's carman era- bezzlinpr contractor's money. R. V. Beau- mont. Thus, where {h) a person employed by a carrier was on one occasion directed by his employer to receive a snmof'2/.. which he did receive, but misappropriated, he was held rightly con- victed of embezzlement. And wliere a servant was authorized to receive money from a particular class of customers, but received and appro])riuted money from others, it was held that he might be convicted of embezzlement {I). And so(m) a clerk, who was employed as evening collector to a carcase butcher, in which capacity it was his duty to receive every evening from the porters employed in the business such monies as they received from customers in the course of the day, and pay the amount over to M. (another clerk), but who was not expected in the course of his employment to receive money from customers themselves, having called on some debtors of his master, and received from them a cheque which lie embez- zled, was held to have received it " by virtue of his employ- ment," within the meaning of the act of Geo. 3. And a similar decision was made in the case of a toll-collector {n), who on one occasion was ordered to receive a debt due to his employers, which he received and embezzled, " because thougli this was out of the ordinary course of the prisoner's employment, yet as he was servant to H. and J., and in his character of servant to them had submitted to be employed by them to receive the note and monies, and had received them by virtue of his being so em- ployed, the case was within the statute." In the following case(o) it was held that a contractor's carman, receiving money for the contractee, could not be convicted upon an indictment which charged him with embezzling money be- longing to the contractor. The prosecutor W., had contracted with tlie Great Northern Railway Company to find and provide them with necessary horses and carmen for the purjiose of con- veying and delivering to the customers of the company the coals of the company in their own waggons, and that lie or his carmen should, day by day, duly account for and deliver to the company's coal-manager all monies received from customers in payment for coals so delivered. By the C(mtract the carmen were to obey the ordersof the company's coal-manager in all things connected with the carrying and delivery of coal and receipt and payment of (/f) Svencer's Case, Russ. & Ry. 299, ante, p. 301 ; and see R. V. Hughes, 1 Moo. C. C. 370, a7ite, p. 300 ; and R. v. Smith, post; R. v. Stanhury, 2 Cox, C. C. 272 ; R. v. Winnall, 5 Cox, C. C. 32(). U) R. V. Williams, 6 C. & P. 62(). From that report it does not appear that tlie prisoner was authorized to receive money at all. But in R. v. Hawtin, 7 C. & P. 281, Alderson, B., puts the decision on the ground stated in the text. (m) R. v. Beecheij, Russ. & Ry. 319; hut see R. v. Thorley, 1 Moo. C. C. 343. («) R. v. Smith, Russ. & Ry. 516. But in Crow's Case, 1 Lew. 88(2 Russ. onCr. 178), which was precisely similar, Lord Wensley- dale directed an aequiital, ob- serving that be had never approv- ed of the decision in R. v. Smith. (o) R. v. Beaumont, Dears. C. C. 270 ; S. C. 23 L. J., M. C. 54. (1854). This case was twice argued on account of a difference of opinion among the judges. LARCENY AND EMBEZZLEMENT BY CLERKS AND SERVANTS. 307 money. The delivery notes, as well as receipted invoices of the coals, vv'ere haiuled to W.'s carmen, and the former were taken to his office to be entered in his books ; but the invoices receipted by thecompany were left with thecustomeron payment of theamount. The prisoner B. was servant of W., and was employed by him as carman in the delivery of coals pursuant to the said contract, and it was B.'s duty to pay over direct to the clerks of the com- pany anj' niciney he might receive for such coals. B. delivered coals to one of the company's customers, and brought the de- livery order to the office to be entered. He received for the coals bl. 10.!*., leaving the receipted invoice with the customer, but converted the money to his own use. He was indicted for embezzlement as servant of W. ; but it was held by a majority of the judges that he could not be convicted, as the evidence showed such a privity as to make him the agent of the company in receiving the money, and that the money was not received on account of W., but on account of the company. Howevei*, in a subsequent and very similar case (p) a different R. v. Thorpe. decision was arrived at; but R. v. Beaumont was not cited. H. was agent of the Great Northern Railway Company at Huddersfield, for the purpose of carrying out goods to be there delivered by the company, and employed his own servants, and used his own drays and horses, and was answerable to the com- pany for monies collected by his servants for the carriage of goods. The prisoner T. was H.'s servant, and, as such, it was his duty to go out with a dray, to take with him goods, and a delivery-book handed to him by J. E., a clerk in the service of the company, and to dt liver the goods according to the direc- tions contained in the delivery-book, and to receive the amount of carriage therein speciHed as due to the company, and tlien to account fur the sums so received with J. E. On several occasions T. took out goods for the companj'^, and received from the consignees payments for the carriage as in the delivery- book, amounting to 6^., which sums were paid to, and received by, him as due to the company ; and the receipts were given by T. in the name of the company. T. absconded, and never paid these sums either to J. E., or to his master H., but H. paid up the amount to the company in pursuance of his arrangement. T. was indicted for embezzlement «s the servant of H., and con- victed, and the conviction was upheld as although T. received the money " in the name " of the company, he received it " on account" of H. If the money misappropriated has been received from the Servant master {q), or if it has been in his possession (r), the servant ^,'^,n'^"^e. cannot, as we have seen, be convicted of embezzling it, but should ceived from be convicted of larceny, which, as we shall hereafter see, may now master, or {p) R.v. Thorpe, Dears. & B. one, and was convicted of lar- 562; S. C. 27 L. J., M. C. 264 ceny. R. v. Goude, Carr. & M. (1858). Tliis case was not argued 582 ; and see R. v. Johnson, 21 L. bv counsel. J., N. S., M. C. 32. ' {q) R. v. Hawkivs, 1 Den. C. (r) R. \. Murray, \ Moo. C. C. C. 584 ; R. v. Beaman, Carr. & 276, ante, p. 2!)7 ; and see R. v. M. 595, where a servant, sent Musters, and R. v. Walts, ante, with 6s. to buy coals, pocketed p. 298. 308 OFFENCES BY SERVANTS AGAINST THEIR MASTERS. . wliichhas be done, altliouji'li tlie prisoner be indicted for embezzlement. been in his j,-, ^ case(s), however, where it apixaied from tlie evidence that possession, , ^ ■'^ ' . i j i • i larceny. the prosecutors weie spinners, and that the prisoner, who was in R.S.Butler, tlieir einploj^, had been from time to time entrusted l)y them with money for the jjurpose of paying wages to workpeople; and the duty of the prisoner was to keep an account in a book of the monies which lie so received and disbursed, and the book when ])roduced contained three entries made by tlie prisoner, in each of wliich he charged his em])loyers wiih more money than he had paid on their account, and the book had been biilanced by the prisoner; but there was no evidence that he had actually accounted with his employers, Wightman, J., stopped an in- dictment for larceny, observing that, perhaps the prisoner never intended to deliver this account, or, if he did, to deliver it with explanations; but tlds was no accounting, and the prisoner was acquitted. Bui if re- ]3ut if a tradesman, susjiecting his servant's honesty, give third'^lfe^son, marked money to a friend to purchase something at his shop, though mas' and, the servant, instead of putting the money into the till ter's agent, popj^t't it, this offence will be embezzlement (/)• If the money lielu to be f , ' . , .,, ... i i -^ • i embezzle- has been put into the till and is abstracted thence, it is larceny. , i"ent. Where a servant is sent by his master to get change for a So, if servant note, gets it and endiezzles the chanrje, he is not liable at change ^em- comuion law for stealing that, but should be indicted for em- bezzle the bezzleiuent, as the master never had possession of the change (m). change. 3. He must fraudulently embezzle the same, or some part thereof (.r). Embezzlement may be defined as the fraudulent retention of personal property of any kind belonging to another, whilst in the course of passing to the possession of the owner. It is not (s) R. V. Butler, 2 Carr. & K. of constituting the offence de- 340. Where a servant, who was scribed in it a larceny. R. v. employed by her mistress to pay Hedges was followed in bills, received from her money Gill, 1 Dears. C. C. 289 ; to jjay a bill of a cheesemonger 23 L. J., M. C. 50. named Sadler, and brought back {u) R. v. Sullens, 1 J\Ioo. the bill witli the words "paid 129; R. v. Thomas, 9 C. Sadler," on it, which she herself 741 ; R. v. Reynolds, 2 Cox, C. C. had written, having pocketed 170. If he steal tlie note it is the money, she was convicted of larceny, as he only had the cus- forgery, R. v. Houseman, 8 C. & tody, not the possession of that, r. 1 80. Buss's Case, ante, p. 286 ; R. v. (t) R. y. Headge, B-uss. & Ry. Atkinson, 1 Leach, C. C. 302; 160 ; S. C. vom. R. V. Hedges, 2 and see R. v. Jf'alsh, Russ. & Leach, 1033. In that case it Ry. 215; .V. C. 4 Taunt. 258; 2 is said, "It seems to be the Leach, C. C. 1054 ; R. v. Goode, opinion of the judges that the Carr. & M, 582; R. v. Smith, 1 Stat. 39 Geo. 3, c. 85, did not Carr. & K. 423; R. v. Johnson, apply to cases which are larceny 21 L. J., M. C. 32 ; S. C. 2 Den. at common law." In Russ. on C. C. 310. Crimes, vol. ii. p. 168, it is said (a) The embezzlement need that the enactment of the stat. not take place whiht servant, if Geo. 4, like that of the Stat. Geo. the receipt were whilst servant, 3, has the efiFect, it should seem, R. v. Lovell, 2 M. & Rob. 236. R. V. S. C. c. c. & p. LARCENY AND EMBEZZLEMENT BY CLERKS AND SERVANTS. 309 sufficient, however, in support of a charge of embezzlement, to prove a mere receipt and non-payment over of money that is a mere matter of account. A positive refusal to account must be shown {y). Thus, where (s) a man gave monej' to his servant to pay taxes, and the only evidence of embezzlement was that the collector had never received the money, it was held that the servant could not be convicted of embezzlement. So, where («) the clerk to the proprietors of a coach, whose duty it was to receive money for passengers, &c., enter the sums in a book, and remit the money weekly to his employers, duly charged himself in his book witii all sums received, but did not remit the money to his employers, as he ought to have done, it was held that he could not be convicted of embezzlement. And in R. v. Jones {b) it was held that a clerk who had merely omitted to enter in his honk a sum of money which he had received could not be convicted of einbezzlement, as it did not appear that he had denied the receipt of it, or gave any false account respecting it. But if he had rendered an account, in tchich the sums re- ceived were omitted, that v ould be evidence of embezzle- ment (c). And it was held by Coleridge, J. {d), that a baker's servant, whose duty it was, on the evening of every daj'^, to render an account of all the monies received during the day for his master, and immediately pay over the amount, having wil- fully omitted to account, might be convicted of embezzlement, as such an omission was equivalent to a denial of the receipt of the nionej'. And where {e) a female servant was sent to receive rent due to her master, received the rent and went off to Ire- Refusal to account must be shown. R. V. Hodg- son. Mere omis- sion to ac- count no em- bezzlement. Aliter, of ac- count con- taining omis- sion. Wilful omis- sion to ac- count, em- bezzlement. Leaving situation and absconding. (y) In addition to the cases cited in the text in support of this position, the case of R. v. Taylor, -3 B. & P. 596, may be referred to. Tn that case it was held that the offence was com- pleted in the county in which the clerk refused to account; and, accordingly, that he might be indicted and tried in that county, though he received the money in another county. Now he maybe indicted in either, 7 Geo. 4, c. 64, s. 12 ; and see R. v. Hob- son, Russ. & R. 56; R. w. Mur- dock, 21 L. J., M. C. 22 ; S. C. 2 Den. C. C. 298. (z) R. V. Smith, Russ. & Ry. 267. (a) R. V. Hodgson, 3 C. & P. 422 ; but see R. v. Jackson, 1 C. & K. 384, post. And see R. v. Hebb, 2 Russ. 1242, where Gar- row, B., held that a clerk could not be convicted of embezzle- ment from whose books it ap- peared that he had received more than he had paid away. See also R. V. Butler, 2 C. & K. 340, ante, p. 308 ; see, however, R. v. Grove, post, p. 310. In R. v. Lifter, 26 L. J., M. C. 26, Pol- lock, C. B., said, " I entirely dis- sent from the dictum of Vaughan, B., in R. v. Hodgson." (h) 7 C. & P. 833; and see another case against the same person, 7 C. & P. 834. (c) R. V. Creed, 1 Carr. & K. 63. See R. v. Butler, 2 C. & K. 340, ante, p. 308, a case where a servant had made up his account, but had never delivered it; and it was held no accounting. (d) R. v, Jackson, 1 Carr. & K. 384. In R. v. Wurtktj, 21 L. J., M. C. 44, Lord Camjjbell said " There are many authorities vvhich show that the denial of the receipt of the money by the prisoner constituted an embez- zlement." (e) R. v. Williams, 7 C. & P. 338. 310 OFFENCES BY SERVANTS AGAINST THEIR MASTERS. R. V. Wii- land, it was held, by tlie same learned judge, that the circuni- """*■ stance of lier qiutt'iwj her -place, and going off to Ireland was evidence from wliich a jury might infer that she intended to ap- propriate tlie money, and sIk; was found guilty. Entry in one So in a case(,/') in vvhicli it appeared to be the duty of L., the book not an pijsoner, to receive remittances from customers for his master, accountins; ' , ^ • i • i i i ^ r • i where duty to enter the amounts received in a casli book, to turnisli an ex- to enter in tract from the cash book to the cashier, also to enter the amount several. ^^ j^jg p^ajt^r's credit in a banker's book, and to pay the amount, R. V. Lister, ^.jf}^ others, from time to time into the bank, and also to enter each amount in his master's ledger to tiie credit of the customer who paid it. Having received a sum of money from a customer, L. did not enter it in the cash book, or in the extract furnislied to the cashier, or in the banker's book, or pay the amount into the bank for his master, but he did enter it in the ledger to the credit of the customer. He was nevertlieless lield to have been rightly convicted of embezzlement, and it was also held that the making the entry in the ledger did not exempt him from punish- ment. Promise to But where a servant, having received money admitted the account, but receipt, and promised, to account, hut did not do so, it was held, doTo?nolm- by Erskine, .J. {g), that he could not be convicted of embezzle- bezzi'ement. nient. In that ca^e, the collector of a water company, as was R. V. Creed, his practice, gave the turncock three receipts for water rate, desiring him to receive the amounts. He received the money, and when asked, admitted that he had done so, and said he would pay it over on Monday, but absconded. Claim of And where (/?.) the master of a coal ship retained part of the right, no em- fj-eight received for carriage of coals, claiming a right to do so ezz emen . j^gj>Qj.jjjjjg jq ^ recognized custom between owners and captains man. "'' ^° ^'^^ course of business, Cresswell, J., held that he could not be convicted of embezzlement. Embezzle- In support of an indictment for embezzlement, it is, in ge- mentofMTOe neral, necessary to prove tliat some specific sum has been specific sum. , i , t-, •', • ^i , i ^ i_ i must be embezzled. But, in one case, that rule appears to have been proved. relaxed (i). In that case the prisoner was cashier in a bank. R. V. Grove. His duty was to take charge of the cash, and when any pay- ment was made into the bank, in money and paper, the course Avas for him to hand over the paper to a clerk, and to enter the cash received in a book, kept by himself, called " the money- book." It was also his duty, at the close of each day, to see that the cash in hand agreed with " the money-book," and to strike a balance denoting the sum in cash which he had in his charge, and which ought to have been ke])t either in a drawer in the counter, of which he had the key, or in a box in the (/) R. v. Lister, 26 L. J., M. the sale in a book, but should C. 26 ; S. C.\ Dears. & Bell, C. have been indicted for emhezzle- C. 118. In IL V. Betts, I Bell, me??< of the 7«o';e// received for it. C. C. 90, it was held that a (g) R. v. Creed, 1 Carr. & K. miller's foreman, who had autho- 63. rity to sell flour and enter the (h) R. v. Norman, Carr. Sr M. sale in a book, could not be con- 501. victed of larceny of some flour (?) R. v. Grove, 7 C. & P. 635 ; which he sold without entering S. C. 1 Moo. C. C. 447. LARCENY AND EMBEZZLEMENT BY CLERKS AND SERVANTS. 311 banking-house, of which also he had the key. One day the cash in the money-book, at the close of business, was 1,762/., which was duly carried forward, and formed the first item in the next day's account. On the latter day, at the close of busi- ness, the prisoner made the balance in the money-book 1,309/., which amount he ought to have in one or otiier of the above- named places of deposit. Upon examination, however, it was found that, instead of 1,309/., the prisoner had only 34-5/., leaving a deficiency of 964/. The prisoner, wlio admitted that he was short about 900/., wns indicted for embezzling " money to a large amount, to wit, 501)/."' The only witness against the prisoner was the partner in the bank, who discovered the delin- quency, and who could not say wlien the money had been pur- loined, from wliat persons it had been received, what sort of money had been abstracted, or whether from the till, or upon the receipt from customers. The jury found the prisoner guilty of embezzlement to the amount charged, and, after argument and considerable doubt, eight judges, against seven, held that there was sufficient evidence to go to the jury of the prisoner having received certain monies on a particular day, and for them to find that he embezzled the sum mentioned in the indictment. However, in a subsequent case {h), where a shopman was in- r.\. jones. dieted for embezzlement, and the counsel for the prosecution offered to prove tiiat there was a deficiency in the prisoner's ac- counts, but said that there was no proof of the embezzlement of any particular sura, and cited i?. v. Grove, Alderson, B., directed an acquittal, saying, that " whatever difference of opinion there might be in the case of JR. v. Grove, proceeded more upon the peculiar facts of that case than upon the law. It is not sufficient to prove, at the trial, a general deficiencj^ in account. Some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen." And again, in a case(/) where it was the duty of a clerk and r. v. Chap- traveller to receive money for his employer, pay wages out of '""«• it, and make entries of all monies received and paid in a book, and to enter the weekly totals of receipts and payments in an- other book, upon which last book he. from time to time, paid over balances to his employer. The clerk, having entries in the first book amounting to 25/., entered them in the second as 35/., and two months afterwards, in accounting with his master, made his balance 10/. too little by these means, and paid it over accordingly. On this evidence he was indicted for embezzling tlie 10/., but Williams, J., asked the counsel for the prosecution, " Can you show any precise sum received by the prisoner, on account of his master, and the whole or part of that very sum appropriated by him to his own use?" And, in the absence of such evidence, directed an acquittal. (A-) IL v. Jones, 8 C. & P. 288. there was an admission, which in Of this case it may be remarked this case there was not. that Alderson, B., was one of {I) R. v. Chapman, 1 Carr. & the seven dissentient judfres in K. 119; and see R. v. Welch, 2 R. v. Grove, and in Grove's Case Carr. & K. 29C. 312 OFFENCES BY SEIIVANTS AGAINST THEIR MASTERS. R. V. Lam- However, in the following case(?n), Erlo, C. J., allowed a pri- '^''" soner to be convicted without siicli specific proof. L. was indicted for end)ezzling tlie sum of 27U/., part of a sum of 2,783/. 7s. 9f/., which he had received on account of the Re- ceiver-General of her Majesty's Customs. L. was assistant teller to the Customs. It was his duty to receive money from mer- chants and others who liad to ])ay money to the Receiver-Ge- neral and enter such receipts in a cash-book. He had also, in the course of his employment, to make certain payments and enter them on the other side of the same book, and balance the amounts each day, paying over so much of the surplus as was in notes to a superior officer and retaining the cash, which was carried to the next day's account. When he paid over the notes it was his duty to give to the same officer a memorandum of the receipts and disbursements of tiie day. One day he was or- dered, about eleven o'clock, to make up his accounts, but con- tinued to receive money until two, when he left the office and did not return. His desk and books were then examined, and in the latter were found, entered as received, several sums, amounting to 2,783/. 7s. 9d. ; and on the other side payments, amounting to 130/. 13s. 3d. The balance found, which ought to have been 2,652/. 14s. 6d., was 270/. short. The whole of the money was received between ten and two o'clock on that day. On the part of the prisoner it was contended, that he could not be convicted of embezzlement as there was no evidence showing the appropriation of any particular sum received from any one person. But Erie, C. J., said, " I think the offence is sufficiently made out witljin the meaning of the statute (w), if the jury are satisfied that tlie prisoner received in the aggregate the amount with which he appears to have charged himself, and that he absconded, or refused, when called upon, to account, leaving a portion of the gross sum deficient. There would be a constant fiiilure of justice if I were to decide otherwise, since it is impossible, in cases like the present, where a number of dif- ferent amounts of money have been received, to specify which sum or sums, or the parts of which sum or sums, have been embezzled." R. V. Hall. Where a clerk received six bank-notes, on his master's account, in payment of a particular debt, and made an entry in his master's book of a smaller sum as received, but afterwards paid over to jiis master the identical notes which he had re- ceived, applying them, in his account, to another debt received by him for his master, he was held to have been rightly con- victed of embezzlement in respect of t/iese six notes {o). No objection It is, however, no objection to an indictment for embezzle- (?n) R. v. Lambert, 2 Cox, C. 2 Will. 4, c. 4 ; but most pro- C. 309 ; Centr. C. C. Aug. 1847 ; bably the latter. and see R. v. Moah, Dears. C. C. (o) R. v. Hall, 3 Stark. C7 ; 626, post. S. C. Huss. & Ry. 463. Such a (?«) It does not appear from case as this is not very likely to the report whether L. was in- occur again since 7 & 8 Geo. 4, dieted under 7 & 8 Geo. 4, or c. 29, s. 48. INDICTMENT FOR EMBEZZLEMENT. 313 ment that the master had no right to the money ; if it be received that master by the clerk or servant by virtue of his employment and on l^o^^jje^Jn^ney account of his master, it will be sufficient (p). if received And it lias been held to be embezzlement in the secretary to a «" ^^^ ac- society fi-aiidulently to withhold money received from a member to be paid over to the trustees ; and that he might be stated to ment'^ty '^ be the clerk and servant of the trustees, and the money might secretary of be stated to be their property, though the society teas not eiirolled, society not and though the money ought, in the ordinary course, to have been received by a steward {q). However, in another case, ' ' ' ' where a society, in consequence of administering to its members ga^soeiety^" an unlawful oath, was an unlawful combination and confede- cannot be racy under the stats. 39 Geo. 3, c. 79 & 57 Geo. 3, c. 19, g°"b'^^zie.°^ s. 25, it was held that a person charged with embezzlement as nient. clerk and servant to such society could not be convicted (?•). ;j y H^nt. The receipt of the money by the prisoner may now be proved unstamped by an unstamped rem;^^, although the amount is above 40s. (s). receipt. A person who receives goods, &c., knowing them to have indictment been embezzled, may be convicted on a common indictment ^s^in^J^ re- charging him as a receiver of stolen goods. Therefore, where W. and T. were charged on an indictment, first, with embezzling f^J' ^''°'"^'^' certain oats, secondly, with being servants of A. B. and stealing his oats, and there was a fourth count charging F. with receiv- ing certain oats feloniously stolen, knowing them to have been feloniously stolen ; and the jury found W. guilty on the first count of embezzlement, acquitted T. and found F. guilty on the fourth count of receiving, the conviction was held to be good; and Pollock, C. B., said, " It seems very likely that the statute provided that embezzlement should be deemed stealing for the express purpose of providing for the case of receivers, there being no statute in terms applicable to receiving goods knowing them to have been embezzled" (t). INDICTMENT (m). By 7 & 8 Geo. 4, c. 29, s. 48, for preventing the difficulties Distinct acts that had been experienced in the prosecution of the last-men- "[gnTmay be tioned offenders, it is enacted that it shall be lawful to charge ciiarged in in the indictment and proceed against the offender for any the same in- number of distinct acts of embezzlement, not exceeding three, which may have been committed by him against the same master within the space of six calendar months from the first to the last of such acts (x) ; and in every such indictment, except As toalle- where the offence shall relate to any chattel, it shall be suffi- prooTof the cient to allege the embezzlement to be of money, without speci- property em- bezzled. {p) R. v. Beacall, 1 C. & P. (0 R. v. Frampton, 27 L. J., .312, 454. M. C. 229 ; S. C. Dears. & B. 585. {q) R. v. Hall, 1 Moo. C.C.474. {u) The indictment must show (r) R. V. Hunt, 8 C. & P. 642. a larceny, R. v. M-Gregor, 3 B. & Is) 17 & 18 Vict. c. 83, s. 27. P. 10(i ; R. v. Johnson, 3 M. & S. Formerly it could not: R. v. 540; see ii. v. MoaA, Dears. C. C. Hall, 3 Stark. 67; see R. v. 626. Wortley, 21 L. J., M. C. 44 ; S. {x) And see 14 & 15 Vict. c. C. 2 Den. C. C. 333. 100, s. 16, ante, p. 295. P 514 OFFENCES BY SERVANTS AGAINST THEIR MASTERS. Object of that act. Particulars. Prosecutor confined to one sum where gross sum charged and several sums proved. Three counts advisable. R. V. Pur- chase. R. V. Noahe. fyiiig any |)articiilar coin or valuable security, and such allega- tion, so tar as regards the description of the pro])erty, shall be sustained it' the offender shall be proved to have embezzled any amount, altlinugh the particular species of coin or valuable security of which such amount was composed shall not be proved, or if he shall be proved to have embezzled any piece of coin or valuable security, or any portion of the value thereof, although such piece of coin or valuable security nuiy liave been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned accordingly. This provision was intended to remove considerable difficul- ties which formerly beset a prosecutor, and often prevented a prosecution under the repealed statute {y). It was found, how- ever, on the other hand, that it frecjuently caused great hard- ships to prisoners, who, from the general mode in which indict- ments are framed under it, could not obtain any satisfactory information as to the specific charges made against them (z). To remedy this evil, it lias become the practice for judges, on motion su])ported by affidavit (rt), to grant an order for par- ticulars, which ought at least to contain tlie names of the per- sons from whom the sums of money are alleged to have been received (h). And it has been held (c), that if a servant be indicted under this act of Geo. 4, for embezzlement, and the indictment con- tain only one count, charging the receipt of a gross sum on a particular day, if it turn out that the money was received in different sums on diffei'ent days, the prosecutor must make his election and confine himself to one sum and one day. In an indictment under this section it is the safest course to have three separate counts, each of the two last of which should aver that the money was not only received, but embezzled within six months from the day mentioned in the first count. Where an indictment contained only one count, which charged that within six calendar months the prisoner received three sums, laying a day to the receipt of each, and that "on the several days aforesaid" the prisoner embezzled these sums, it was held bad, because it did not show that the sums wei'c embezzled within six months of each other (rf). And where an indictment contained three counts, the first of which was in the usual form, but the second stated " that within six calendar months from the day mentioned in the first count of this indictment," to wit, {y) 2 Russ. on Crimes, 1C8; see R. V. Moah, Dears. C. C. 631. (a) It is conceived tliat this observation applies with twofold force since 14 & 15 Vict. c. 100, s. 13, post. (a) The affidavit should state that the prisoner does not know the charges intended to be brought against him, that it is necessary for his defence to be furnished with the particular charges, and that he has applied to the prosecutor for a particular and been refused, see 2 Russ. on Crimes, 189, note. (b) R. V. Hodgson, 3 C 422 ; It. V. Bootyman, 5 C. 300. (c) II. V. IVilliams, 6 C. 626. (d) R. V. Purchase, Carr. & M. 617. & P. & P. & P. INDICTMENT FOR EMBEZZLEMENT. 315 &c. at &c. the said N. being then and there employed, &e. did by virtue of his employment, &c. receive, &c. and the said last- mentioned money, to wit, on the day and year last aforesaid, at &c. feloniously did embezzle, &c., and the third was in the same form, Cresswell, J., held the second and third counts bad, and confined the prosecutor to evidence on the first count only {e). By the 14 & 15 Vict. c. 100, it is enacted, sect. 13, That if h & ij Vict. upon the trial of any person indicted for embezzlement as a *^' ^ ' ^" ' clerk, servant or other pei'son employed for the purpose or in ^fJig'^"^^"" the capacity of a clerk or servant, it shall be proved that he embezzie- took the property in question in any such manner as to amount ment as a in law to larceny, he shall not by reason thereof be entitled to noYtobe ' be acquitted, but the jury shall be at liberty to return as their acquitted if verdict that such person is not fruiltv of embezzlement but is J^*^ off>;nce .,„.,,' ,> y 11 i. turn out to guilty of simple larceny, or or larceny as a clerk, servant or be larceny, person employed for the purpose, or in the capacity of a clerk and vice or servant, as the case may be, and thereupon such person shall ''*""' be liable to be punished in the same manner as if he had been convicted upon an indictment for such larceny; and if upon the trial of any person indicted for larceny it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of larceny, but is guilty of embezzlement, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such embezzlement, and no . person so tried for embezzlement or larceny as aforesaid shall be liable to be afterwards prosecuted for larceny or embezzle- ment upon the same facts. Other Acts of Parliament have also at various times been Special acts passed for the protection of masters in trade from frauds and o7nmsters'in embezzlements of property by their servants. In this place, some trades, however, it is unnecessary to do more than refer to those acts, most of -which will be found in the Appendix. When a servant who has robbed his master has been prose- Aftertrial cuted and tried for the offence, the master may, if he thinks J°L7ir^,!' ^ proper, sue him for the damages he has sustained therebj'. liut sue servant; he cannot proceed by action until after the trial of the servant, as public policy requires that offenders against the law should be brought to justice, and for that reason a man is not per- mitted to abstain from prosecuting an offender by receiving back stolen property or any equivalent or composition for a felony without suit, and of course therefore he cannot be allowed to maintain a suit for that purpose. It would not prejudice the civil remedy that the offender was acquitted of the crime, if he was tried (y). And it would seem that if the servant die or after his (e) R. V. NoaU, 2 Carr. & K. 551 ; Marsh v. Keating, 1 B. N. 620. C. 198; Whitev.Spettigue, \3M. (/) Crosby V. Leng, 12 East, & W. 608. 409 ; S(one v. Marsti, 6 B. & C. P 2 316 OFFENCES BY SERVANTS AGAINST THEIR MASTERS. death his executors. Statute of Limitations 110 bar. Teed V. Beere. Security given on agreement not to pro- secute set aside. Mere threat not sufficient Ward V. Llojjd. 50 Geo. .1, c. 59, s. 2. Officers giv- ing in false statements of money entrusted to their care, misdemean- or, &c. 2 Will. 4, c. 4, s. I. before conviction tlic master might maintain a suit in equity against the servant's executors {g). And wliere a barrister filed a bill to recover out of the assets of a deceased clerk an amount of fees which the clerk iiad received and embezzled in his lifetime, it was held in equity(/i), that the Statute of Limitations could not be set up as a defence ; for, said Stuart, Vice-Chancellor, " the clerk was clearly a receiver and agent by whom money was received in confidence, and therefore under the same implied contract as that supposed to arise out of the duty of trustees, assignees and executors, of faithfully, diligently and accurately accounting when called upon to his principal («). That being so the money must be considered as money of the employer in the hands of his con- fidential agent. There had therefore been all along possession by the agent, but no adverse possession, and therefore the bar of the statute, which was founded on adverse possession, did not apply." If a warrant of attorney is given to his master by a servant charged with embezzlement upon a distinct agreement by the master not to prosecute the charge, the agreement is illegal, and the court would upon a summary application set aside tlie warrant of attorney {k). But where a warrant of attorney wa5 obtained from a servant upon a threat by his master that if he did not go to his attorney and give satisfactory security for an amount which he ought to have accounted for, he would pro- secute him for unlawfully making use of his money, the Court of Common Pleas refused to set it aside as there did not appear to have been any agreement not to prosecute. " Such an agree- ment," said Coltman, J., " is not to be inferred from hasty ex- pressions used by a man when seeking to obtain secui-itj^ for a just debt" (/). OFFENCES COMMITTED BY PERSONS EMPLOYED IN THE PUBLIC SERVICE. By Stat. 50 Geo. 3, c. 59, s. 2, it is enacted, that if any officer, collector or receiver, entrusted with the receipt, custody or management of any part of the public revenues, shall know- ingly furnish false statements or returns of the sums of money collected by him, or intrusted to his care, or of the balances of money in his hands, or under his control, such officer, collector or receiver so offending, and being thereof convicted, shall be adjudged guilty of a misdemeanor, and shall be adjudged to suffer the punishment of fine and imprisonment, at the discretion of the court, and be rendered for ever incapable of holding or enjoying any office under the Crown. And by stat. 2 Will. 4, c. 4, after repealing the first section {g) Wickham v. Gattrell, 23 L. J., Ch. 783. {h) Teed v. Beere, 28 L. J., Ch. 782. (i) The Earl of Hardwicke v. Vernon, 14 Ves. 504 ; Dinwiddie v. Bailey, 6 Ves. 136. {k) Ex parte Critcliley, 3 D. & L. 527 ; and see Collins v, Blan- tern, 1 Smith's L. C. 155; Keir v. Leeman, 6 Q. B. 308 ; 9 Q. B. 371. (0 ff'ard v. Lloyd, 6 M. & G. 785. OFFENCES BY PERSONS EMPLOYED IN THE PUBLIC SERVICE. 317 of 50 Geo. 3, c. 59, it is enacted, sect. 1 , that if any person em- Persons in ployed (m) in the public service of his Majesty, and entrusted, service em- by virtue of such employment (n), with the receipt, custody, bezziing any management or control of any cliattel, money or valuable yaj"abi"se security, shall embezzle the same (o), or any part thereof, or in cunties with any manner fraudulently ai)p]y or dispose of the same, or any which they part thereof, to his own use or benefit, or for any purpose what- fo^be'deemed soever, except for the public service, every such offender shall guilty of be deemed to have stolen the same, and shall, in England and felony, &c. Ireland, be deemed guilty of felony, and, in Scotland, of a high crime and offence, and, on being thereof convicted in due form of law, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years nor less than seven years, or to be imprisoned, with or without hard labour, as to the court shall seem meet for any term not exceeding three years (p). Sect. 2. That every tally, order or other security whatsoever, Sect. 2. entitling or evidencing the title of any person or body corporate What to be to any share or interest in any public stock or fund, whether of u"n(]e^ti*|e the United Kingdom, or of Great Britain, or of Ireland, or of words "va- any foreis^n state, or to anv share or interest in any fund of any '"able secu- 1 , * . y . . "^ rities " body corpoi-ate, company or society, or to any deposit in any savings bank, and every debenture, deed, bond, bill, note, war- rant, 01 der or other security whatsoever for money, or for payment of money, whether of this kingdom or of any foreign state, and every warrant or order for the delivery or transfer of any goods or valuable thing shall, throughout this act, be deemed for every purpose to be inchidt'd under, and denoted by, the words " valuable security ;" and that if any person so employed and entrusted as aforesaid shall embezzle or fraudulently apply or dispose of any such valuable security as aforesaid, he shall be (m ) Acting in the employment money received by him whilst such is sufficient without proof of for- clerk, without any more specific mal a\>Y)omtment, R. V. Boriett, 6 allegation that he embezzled C. & P. 124; R. V. Townsend, whilst clerk, R. v. Lovell, 2 Moo. Carr. & M. 178. & Rob. 236. (71) In R. V. Townsend, Carr. & { p) See now 20 & 21 Vict. c. M. 178, it was held that a post 3. By 22 & 23 Vict. c. 32, s. 25, office letter-carrier, who was in it is enacted that the penalties the daily haf^t of calling at the and provisions of 2 Will. 4, c. 4, lodge of G. Infirmary, and there shall extend and be applicable receiving letters with a penny " to constables and other persons on each to prepay the postage, employed in the police of any and taking them to the Ge- county, city, borough, district neral Post Office, having embez- or place wliatsoever in like man- zled some of the pence thus re- ner as to any person employed ceived, might be convicted under in the public service of her Ma- tliis act; as there was evidence jesty within the meaning of that to go to the jury that the pence act, and for all the purposes of were received by him by virtue the said act the employment of of his employment as a letter- constable, or any otlier such em- carrier, jiloyment in the police, shall be (o) It was held to be sufficient deemed an employment in the in an indictment under this act, public service of lier Majesty." to state that a clerk embezzled 318 OFFENCES BY SERVANTS AGAINST THEIR MASTERS. Property to be (ie.-cnbed as tlie King's Venue. R. V. Moak. deemed to have stolen the same within the intent and meaning of this act, and shall be punishable thereby in the same manner as if he had stolen any chattel of like value with the share, interest or deposit to which such security may relate, or with the money due on such security, or secured thereby, and re- niaininn: unsatisfied, or with tlie value of the goods or other valuable tiiinij mentioned in such security. Sect. 3 is simihir to sect. 48 of 7 & 8 Geo. 4, c. 29, ante, p. 313. By sect. 4. That in every such case of embezzlement, or fraudulent application or disposition as aforesaid, of any chattel, money or valuable security, it shall be lawful, in the order of committal, by the justice of the peace before whom the offender siiall be charged, and in the indictment to be preferred against such oflender, to lay the property of any such chattel, money or valuable security as aforesaid in the King's Majesty. And by sect. 5. That every offender against this act may be dealt with, indicted, tried and punished either in the county or place in which he shall be apprehended, or in the county or place where he shall have committed the offence. The following important case (r/) may be mentioned here. M., an officer of inland revenue, received certain taxes in respect of which he was allowed to retain in his hands a balance of about 300Z. to meet contingent expenses. It was his duty to render accounts to certain inspectors, and these accounts, when ren- dered, showed a much larger balance in his hands than he was allowed to retain. At last the General Surveyor of Inland Eevenue examined M.'s accounts, and produced to him a state- ment extracted from them, showing a balance in his hands of upwards of 5,000/., which he admitted. The surveyor then asked him if he was prepared to pay over that balance, or any part of it, and he said no. The surveyor then reminded him that there was a balance of excise duties alone of about 300/. standing against him from the previous Monday. M. then took out 255/. in bank notes, and a cheque for 25/. 8s. 4d., and a money order for I4s., and said that was all the money he had in the world. The surveyor then asked him what he had done with the rest, and he said he had spent it in an unfortunate speculation. He was indicted for embezzlement under 2 Will, 4, c. 4, s. 1, and convicted, as it was held by all the judges before whom the case was argued, that there was evidence of the receipt of a particular sum of 300/., and a misapplication of part of it. And Cresswell, J., after stating his opinion to that eifect, added : " I by no means say that the conviction is not sustainable as to the 5,000/. It is a question of law of great importance, and the authorities are somewhat conflicting. In a. v. Grove (r), under circumstances somewhat similar, the conviction was sustained by a majority of eight judges to seven ; but in a subsequent case that decision was not followed, and Avas said to have proceeded upon some special facts. In R. v. Lambert (s), however, which cannot be distinguished from this case, my bi-other Erie held that evidence of a general deficiency (q) R. ^ 626 ; S. C. . Moah, Dears. C. C. 25 L. J., M. C. Q6. (?) Supra, p. 310. (s) Supra, p. 312. EMBEZZLEMENT BY OFFICERS, ETC. OF BANK OF ENGLAND. • 319 was sufficient to sustain the indictment. As at present advised, I should say that the prisoner being shown by his own accounts to have a balance in hand of 5,000Z. due to the Crown, and he making no attempt to explain it on the ground of error or loss of the money, merely says that he has expended it for his own purposes, he may upon that evidence be convicted of embezzling the money, and that having been once indicted for embezzling the whole amount, and either convicted or acquitted, he never could be indicted again for embezzling any part of it. I merely throw this out as showina; my grounds for saying that I am by no means satisfied that this indictment is not sustainable as to the whole amount of the prisoner's deficiency." EMBEZZLEMENT, &c., BY OFFICERS AND SER- VANTS OF THE BANK OF ENGLAND. By Stat. 15 Geo. 2, c. 13, s. 12, it is enacted, that if any 1.5 Geo. 2, officer or servant of the said company, being entrusted with (f.) <^- '^' ^- ^■^■ any note, bill, dividend warrant, bond, deed or any security, Servants monej'^ or otlier efl^ects [ti) belonging to the said company, or their tnfst to having any bill, dividend warrant, bond, deed or any security the coinpany. or effects of any other person or persons lodged or deposited with the said company, or with him as an officer or servant of the said company, shall secrete, imbezil, or run away with any such note, bill, dividend Avarrant, bond, deed, security, money or effects, or any part of them, every officer or servant so offending, and being thereof convicted in due form of law, shall be deemed guilty of felony, and shall suffer [death as a felon, without benefit of clergy]. Provisions similar to the above are also contained in 35 Geo. 3, 35 Geo. 3, c. 66, s. 6 (whereby certain L-ish Annuities were transferred to ''' ^^' the Bank of England), and 37 Geo. 3, c. 46, s. 6 (whereby ^^ Geo. 3, certain other annuities were also transferred to the Bank of England). The punishment of death, however, for these off'ences was Punishment, abolished by 4 & 5 Yict. c. 56, by sect. 1 of which act it is 4 & 5 vict. enacted, that persons convicted of offisnces against the act 15 c.56. Geo. 2, c. 13, s. 12, shall be liable, at the discretion of the Transporta- court, to be transported beyond the seas for the term of the p "^on'j^nt . natural life of such person, or for any term not less than seven years, or to be imprisoned for any time not exceeding three years " (:r). And by sect. 4, it is also enacted, "That in awarding the with or wiih- punishment of imprisonment for any offence punishable under ""^011^ (t) A person cannot be con- Exchequer bills, signed by a victed under this act who merely person not authorized to sign has access to notes, &c., but is them, were effects within the . not entrusted with them, Bake- meaning of this act. And it was iveirs Case, Russ. & Ry. 35; and also held that 39 Geo. 3, c. 85, see Philli/is v. Iliith, 6 M. & W. did not repeal this act. 572; Hatfield v. Phillips, H M. (x) See now 20 & 21 Vict. c. & \V. GG5. 3, which substitutes penal servi- (m) \n R. v. Aslett, 1 Bos. & tude for transportation. P., N. R. 1, it was held, that 320 OFFENCES BY SERVANTS AGAINST THEIR MASTERS. and solitary tliis act, it shall be lawful for the court to direct such punish- con nenient. j,jj,,jj. {q jjp ^r\i\^ or without hard labour in the couinion gaol or house of correction, and also to direct that the offender shall be kept in solitarj'^ confinement for any portion or portions of such imprisonment, wliether the same be with or without hard labour, not exeeedins one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet." Trial of By sect. 6, such offences are not triable before any justices of ences. ^j^^ peace at any general or quarter sessions of the peace, ciwuof the And by stat. "ll Geo. 4 & 1 Will. 4, c. 66, s. 9, it is enacted I'liiiyniakiii" that if any clerk, officer or servant of or other person employed out dividend or entrusted by the governor and company of the Bank of England, Tfrrut'-'^i'^'^ or the governor and company of merchants commonly called the I J ■vantofthe Committed the offence imputed to him (/"). And therefore it Post Office, ^vas held, under the old Post Office Act, 52 Geo. 3, c. 143, that Servant em- a servant employed at a receiving house to clean boots, &c., and recei^'wii"- ^^ '^" "^^^ ^" assist in tying up and sealing the post office bag, house not was not a servant of the post office C^). such a ser- J3(,(; ^^ ^lan employed by the post-mistress to carry letters from one place to anotiier at a weekly salary paid to him by the post- son'wre^tfby distress, but vvhich was repaid to her by the Post Office, was post-mistress held to be a person employed by the post office within that to carry act(//). And now, by the interpretation clause of 7 Will. 4 & 1 Vict. c. 36, the expression " persons emi)loyed by or under "person em- tlie Post Office" shall include every person employed in any ployed by or business of the Post Office, according to the interpretation given Posroffice " *" the expression "officer of the Post Office," and that expression "Offi r shall include the postmaster-general and every deputy postmaster, of the Post agent, officer, clerk, letter-carrier, guard, post-boy, rider or any Office." other person employed in any business of the Post Office, whether employed by the postmaster-general, or bj' any person under him, or on behalf of the Post Office. E.x.Reasov. The prisoner was employed under the Post Office as letter carrier from C. to F. The letters were delivered to him in a sealed bag, which it was his duty to deliver, as he received it, to the postmaster at F., and, on such delivery, his duty was completed. One day he brought from C. the sealed bag con- taining letters, and delivered it safely at F. post office, to the F. postmaster, whose duty it was to sort the letters in time to make up the bags for the mail passing throuuh F. The pri- soner, at the request of the F. postmaster, assisted in sorting, and while so doing, stole a letter containing ]/. It was held that he was a person employed under the Post Office within the meaning of 7 Will. 4 & 1 Vict. c. 36, s. 26 (j). What is a; By sect. 47 of 7 Will. 4 & 1 Vict. c. 36, the term post letter post etter. ' gj^^jj ^^,^3,, jj,jy letter or packet transmitted by the post under the authority of the postuiaster-general, and a letter shall be deemed a post letter from the time of its being delivered to (c) R. v. Toumsend, Carr. & M. R. v. Lovell, 2 Moo. & Rob. 236. 178, (ivte, p. 317, note (n). (g) R. v. Pearson, 4 C. & P. {d) R. V. Rees, 6 C. & P. 606 ; 572. R. V. Barrett. 6 C. & P. 124; R. (h) R. v. Salisbury, 5 C. & P. V. Townsend, Carr. & M. 178. 155. (e) R. V. Trenwyth, Ir. Circ. (/) R. v. Reason, 23 L. J., M. Rep. 172, sed qtiare. C.ll ; S. C. Jurist (1853), 1014 ; (/) But he need not have em- Dears. C. C. 226. bezzled it whilst in the employ, OFFENCES BY OFFICERS, ETC. EMPLOYED IN POST-OFFICE. 323 a post office to the time of its being delivered to the person to whom it is addref^sed ; and the delivery to a letter-carrier or other person authorized to receive letters for the post shall be a delivery to the post office, and a delivery at the house or office of the person to whom the letter is addressed, or to him, or to his servant, or agent, or other person considered to be authorized to receive the letter, according to the usual manner of delivering that person's letters shall be a delivery to the person addressed. Under this act it has been held that a post letter means a letter put in the ordinary way into the post-office. And, there- R- v. Ra/h- fore, where (k) a letter-carrier was suspected, and, for the *""*'• purpose of trying his honesty, an assistant inspector of letter- ''"''^P letter. carriers enclosed a marked sovereign in a letter addressed to Mr. M., then sealed the letter, and marked it, as if it had been put into the post in the regular way as a paid letter, but it never was posted : on the following day, whilst the prisoner was not attending, the letter was put amongst a heap which he had to deliver, and the prisoner was seen to take the letter into his possession, but never delivered it, and the marked sovereign was found in his pocket: it was held, by all the judges, that he could not be convicted of stealing a " post letter." And a Fictitious similar decision was made, under similar circumstances, where address. such a letter had an entirely fictitious address (Z). In both the ^- ^- ^ard above cases, however, the prisoners were convicted of larceny. And, in a subsequent case, where such a letter was posted, R- v. Young. although with a fictitious address, the prisoner was convicted (m). A servant was sent to the post with a letter and a penny to ^- ^- ^f^nee. prepay the postage, but finding the shop-door of the receiving house shut, she put the penny inside the letter, fastened it in . with a pin, and dropped it into the letter-box, intending that the penny should be applied to the payment of the postage. A messenger, in the General Post Office, stole this letter, with the money in it, and Lord Denman held, that it came within the description of the Act of Parliament, viz., a letter containing money, although the money was not put in for the purpose of being conveyed in the letter (??). S.. post-m stress at G., received a letter from D., with \l. for R-^- Bicker- a post-office order, to be obtained at L., 3rf. for the poundage, {k) R.v. Rathbone, Carr. & M. who handed it to a third, who, 220 ; S. C. 2 Moo. C. C. 242 ; after locking it up for the night, ace. R. v. Shepherd, Dears. C. handed it to a sorter, who placed C. 606 ; S. C. 25 L. J., M. C. -52. it among the letters which it was In this case the prisoner was a prisoner's duly to sort. The suspected sub-sorter at the Ge- prisoner was convicted of simple neral Post Office. A letter was larceny. made up, cash enclosed, and the (l) R. v. Gardner, 1 C. & K. usual stamp put on the letter. 628 ; but see R. v. Newey, ib. 630, The usual course of posting a note ; R. v. Young, 2 C. & K. letter at the outer liall of the 466. General Post Otiice is to place it [m) R. v. Young, 2 C. &; K. in receiving box. In this case, 466. however, an inspector delivered {n) R. v. Mence, Carr. & M. the letter at the window in the 234. outer, liall to another inspector, 324 OFFENCES BY SERVANTS AGAINST THEIR MASTERS, Id. for the postage, and \d. for the messenger, who was to gfit the order. The letter when received by S. was unsealed, but addressed , she in due course delivered it to the prisoner, who was the post-oftice messenger, with the money, and instructed him to obtain the order at L., inclose it in the letter and post the letter at L. He pocketed the money, and never delivered the letter at L., and it was held by Cresswell, J., that under these circumstances the letter must be considered as a post- letter, and the prisoner in the employ of the post-office ; and he was convicted under the statute (o). R.v. Glass. But in another case Qj), where a person delivered two 51. notes to the wife of the postmaster at C. (where money orders were not granted), and asked her to send them by the letter- carrier from C. to W., in order that he might get two 5/. money orders at the W. post-office : she gave instructions accordingly to the letter-carrier, and by his desire put the notes into his bag; but he afterwards took them out, and pretended he had lost them (having had no intention of stealing them at the time he received them) : it was held by the fifteen judges that this Avas not larceny, the notes not being in the possession of the prisoner in the course of his duty as a post-office servant. R.v.Haricij. A post-officc being at an inn, a person was sent to put a letter containing promissory notes into the post. He took it to the inn with money to prepay the postage : he did not put it into the letter-box, but laid the letter with the money upon it upon a table in the passage of the inn, in which passage the letter-box was, and pointed out the letter to the prisoner, who was a female servant in the inn, who said " she would give it to them." The prisoner, who was not authorized by the inn- keeper, her master, to receive letters for him, stole the letter and its contents : and Patteson, J., held, that this was not a post- letter within the meaning of the act ; so the prisoner was con- victed of larceny {q). n & 12 Vict. By the 11 & 12 Vict. c. 88, s. 4, it is enacted, that everj' V. 88. officer of the post-office who shall grant or issue any money- oiticer/oT Order with a fraudulent intent shall, in England and Ireland, Post Otiice be guilty of felony, and in Scotland, of a high crime and offence, iiio'nev^orders ^°^ shall, at the discretion of the court, either be transported (r) fraudulently, beyond the seas for the term of seven years, or be imprisoned for any term not exceeding three years. By sect. 5, the property in anything stolen from the Post Office may be laid, in indictments &c., as in '' Her Majesty's Postmaster-General," without any further or other description whatsoever. (o) R. v. Bickerstaff, 2 C. & K. (q) R. v. Harlejj, 1 C. & K. 761. 89. (p) R. V. Glass, 2 C. & K. (r) See now 20 & 21 Vict c. 395. 3, substituting penal servitude. ( 325 ) CHAPTER IX. JURISDICTION OF JUSTICES IN DISPUTES BETWEEN MASTERS AND SERVANTS. PAGE Generally— 20 Geo. 2, c. 19 ; 6 Geo. 3, c. 25 ; 4 Geo. 4, c. 34 325 Ca.se* provided /or by 4 Geo, 4, e. 34 335 PAGE Order or Conviction and War- rant of Commitment . . . 339 Arbitration of Disputes be- tween Masters and Work- men 342 JURISDICTION OF JUSTICES GENERALLY. The general jurisdiction of justices in disputes arising between masters and servants is derived from three Acts of Parliament, the provisions of which are so intermixed with each other, in the various decisions upon the subject, that the author is com- pelled in the first instance to give the statutes and then the decisions upon them ; no other and more satisfactory arrange- ment of the subject being attainable under the circumstances. By construction of law upon the statute 5 Eliz. c. 4 (which enabled justices to fix the rate of wages) justices of the peace were held (a) to have the power of ordering and enforcing the payment of wages to servants in husbandry. But the statute of Eliz. being found deficient as it extended only to such wages as should be rated by the justices, and to servants in husbandry (b), and contained no power to admit the servant's (a) R. V. Gouche, 2 Salk. 441 ; S. C. 2 Lord Raym. 820; Sher- gold v. Holloway, 2 Str. 1002. (6) The jurisdiction of justices in disputes between masters and servants in trades is conferred by various Acts of Parliament relating to particular trades, which, for the convenience of re- ference, have been airanged al- phabetically in a table printed at the commencement of this vo- lume. The principal of those acts (viz. 20 Geo. 2, c. 19; 6 Geo. 3, c. 25 ; 4 Geo. 4, c. 34, and 5 Geo. 4, c. 96) are given in the text, together with the cases decided upon them, as they are applicable to almost all trades ; the operation of the three first having been extended by 10 Geo. 4, c. 52, to the several manufactures, trades and occu- pations mentioned in 17 Geo. 3, c. 56. Most of the other acts will be found in the Appen- dix. In proceedings under these statutes the provisions of 11 & 12 Vict. c. 43 must be attended to, as the case of master and ser- vant is not within the list of ex- cepted cases, sect. 35; see 16 Q. B. 71. But that act does not extend to proceedings under tlie Factory Acts, see sect. 36. 3-26 JURISDICTION OF JUSTICES IN DISPUTES, ETC. 20 Geo. 2, c. 19. Differences between masters and certain ser- vants to 1)0 determined by a justice of peace where the master resides. Justices to examine servants, &-c. upon oath ; oath in evidence, the 20 Geo. 2, c. 19 was passed. . That act, after reciting that the laws then in being for the better regula- tion of servants, and for the pnynient of wages to them, and to artificers, liandicraftsnien and labourers, were insufficient and defective, enacted sect. 1, that after 25th March, 1747 " all complaints, differences and disputes which shall happen or arise between triasters or mistresses and servants in husbandry who shall be hired for one year or longer (c), or which shall happen or arise between masters and mistresses, and artificers (J), handi- craftsmen, miners, colliers, keelmen,pitmen(6'), glassmen, potters and other labourers (f) employed for any certain time or in any other manner (^), shall be heard and determined by one or more justiceor justices of the peace of the county, riding, city, liberty, town corporate or place where such master or mistress shall inhabit (//) (although no rate or assessment of wages has been made that year by the justices of the peace of the shire, riding or liberty, or by the mayor, bailiffs or other head officer, where such complaints shall be made, or where such differences or dis- putes !!-hall arise)(i), which said justice or justices is and are hereby empowered to examine upon oath any such servant, artificer, handicraftsman, miner, collier, keelman, pitman, glass- (c) See note {g), infra. (d) By 6 Geo. 3, c. 25, s. 4, and 4 Geo. 4, c. .34, s. 3, " calico printers" are added. (p) In the Stannaries in Devon and Cornwall, 27 Geo. 2, c. 6, s. 2. (/) In Lowther v. Earl of Radiior, 8 East, 113, a labourer, who contracted to dig and stean a well, was held within this act. That case, liowever, proceeded upon the facts laid in the infor- mation before the justice. In order to give a magistrate juris- diction now, there must either be an actual service, or a contract of service. See Hardi/ v. Ryle, 9 B. & C. 603; Lancaster v. Greaves, 9 B. & C. 628. In Wiles V. Cooper, 3 A. & E. 524, it was considered doubtful whether under this act and 4 Geo. 4, c. 34, justices had power to order pay- ment on an information " for wages for labour as a carpenter." And see Riley v. Warden, 2 Exc. 59 ; Sharman v. Saunders, 13 C. B. 166 ; Ingram v. Barnes, 26 L. J., Q. B. 82, as to the meaning of the word "labourer" in the Truck Act, 1 & 2 Will. 4, c. 37 ; and R. V. Worthy, 21 L. J., M. C. 44; S. C.I Den. C. C. 333, a»- for less time than a Year," shall and may order tlie amount of ' "^^ ' ' the wages that shall appear due to any servants in husbandry, artificers, labourers or other person named in the said acts, or either of them, to be paid to the person entitled thereto within such period as the said justice or justices shall think proper; and in case of refusal or non-payment thereof shall and may levy the same by distress and sale in manner directed by the said first-mentioned act; and every order or determination of Order final. such justice or justices made under this act shall be final and conclusive, anything in either of the said acts contained to the contrary in anywise notwithstanding (n). 6. Provided always, that nothing in this act contained shall Proviso for extend to impeacli or lessen the jurisdiction of the chamberlain Jurisdiction of the city of London, or of any other Court within the said lainof Lon- city touciiing apprentices. don. CASES PROVIDED FOR BY 4 GEO. 4, c. 34. This statute, 4 Geo. 4, c. 34, s. 3, provides for two classes Two classes. of cases. First, where a servant contracts in writing to serve, and does not enter upon his service; and, second, where under a contract, either oral or in writing, he entei's upon the service and absents himself from such service («) wilfully or without* lawful excuse (77). And every order, conviction or warrant of commitment under the statute must show tliat the case belongs to one or other of these two classes (5'). The main difference Difference between the two classes is, that in the former a written contract between is necessary, which it would seem must be signed by bothfr) \i^ae'nceot the contracting parties, since the requii'ernents of this statute contract. are diflTerent from those of tlie Statute of Frauds (which as we have seen only requires an agreement within it to be signed by the party to be charged) (s), whilst in the latter class oral evi- dence of u contract will suffice. But in botli classes of cases it similarity in is equallv necessary that there should be a contract of hirino- existence of and service m some one or other 01 the capacities mentioned in the statute, or in some capacity ejusdern generis with those mentioned in the statute ( M. & 21 L. J., M. C. 94. They are W. 367 ; R. v. Preston, 12 Q. B. not applicable to cases under tlie 82(5. Factory Acts, see s. 35. {y) In sect. 5 of cacli statute. (.?) See sect. 32. {z) 1 Str. 996. (0 ^ee Askew' s Case, 2 L. M. (a) See 1 Chitty's Burn's & P. 429. Just. tit. " Distress ;" S. C. Sayer, {u) As those forms, when fol- 304; Paley on Conv. 133, 134. q2 310 JURISDICTION OF JUSTICES IN DISPUTES, ETC. viction not necessary. Where only one instru- ment, form of it. those statutes, should be considered as an order, and not as a conviction ; and it was so treat(;d by Lord Ellenborough in J?. V. The Justices of Staffordshire (/»). The 4 Geo. 4, c. 34, also appears only to contemplate one instrument, by wliiitever Separate con- name it is to be called (c). And it has been held that under that statute a separate conviction is not necessary; or rather that the commitment may operate as a conviction frf). But it has also been held, that it is necessary to tlie validity of that course of proceeding (embodyinji: the conviction in the commit- ment), that the warrant of comiuitnicnt should show that the magistrate had done all that was necessary to make the con- viction lawful (p) ; as well as facts bringing the case within the jurisdiction of the magistrate (/"). " Every instrument," said Lord Wcnsleydale, in Lindsay v. Leigh (g), " which is to affect a man's liberty or property, out of the course of the common law, ought, on the face of it, to show the authority sufficiently." Where, therefore, the instrument included both a conviction and warrant of commitment, and it did not appear that the con- tract of service was in writing, or had been entered into (/(), or that the service mentioned was in some one or other of the capa- cities mentioned in the statute (i), the instrument was held bad. And so, also, where it did not appear that the witnesses were examined upon oath (k), or in the prisoner's pi esence (/). So, again, where it only appeared that the servant absented himself from his master's service, without adding " wilfully," or " with- out lawful excuse," or words to that effect (7/2). And it has also been held that a statement that a servant absented himself, did not imply that he had entered into his master's service («). And a statement that he absented himself " without assigning any sufficient reason," would notdo ; though " withnutsufficient reason" perhaps -would do (o). The commitment must also disclose that the conviction adjudicated as to an abatement of wages {p). It is not, however, necssary that the evidence should be set out, even though the warrant be of a hybrid character, and operate as a conviction {q). (b) 12 East, 572; see 11 Q. B. 464. (c) Pel- Lord Wensleyilale, in Lindsay v. Leigh, 11 Q. B. 464. {d) Juhnson v. Reid, 6 M. & W. 124; Et parte Jolmson, 7 Dowl. 702; Lindsaii v. Leigh, 11 Q. B. 464 ; Re Baileij, 3 E. & B. 607. (e) R. v. Tordoft, 5 Q. B. 939 ; S. C. 1 New Sess. Cas. 171. (/) See In re Askew, 2 L. M. & P. 429; hi re CnpesHck, 1 New Sess. Cas. 181; and cas. cit. ante, p. 336. ig) 11 Q. B. 465. {h) See note (/), supra. (?) Ante, p. 336, cas. cit. (k) In re Gray, 2 D. & L. 539; S. C. 1 New Sess. Cas. 354 ; Re Jones, 1 New. Sess. Cas. 3. (/) R. v. Tordoft, 5 Q. B. 933; S. C. 1 New Sess! Cas. 171. (m) Stth Turner's Case, 9 Q. B. 80. («) Re Askew, 2 L. M. & P. 429; In re Baker, 26 L. J., M. C. 193, the Court of Queen's Bench thought that an alK-cration in a warrant of an oflence having been committed " in the ser- vice," implied that the prisoner had entered it. (0) Re Gesivood; 2 E. & B. 952. (p) Ex parte Baker, 26 L. J., M. C. 155. {q) Re Gesivood, 2 E. & B. 952. The dictum in Hammond's Case, 9 Q. B. 92, that it should be set out, was merely obiter. Re Bailey, 3 E. & B. 607. ORDER OR CONVICTION, AXD WARRANT OF COMMITMENT. 341 And it is by no means necessary that the conviction and wan-ant of conmiitment should be in the same document (r). The instrument may be simply a warrant of commitment in execution of a previous conviction, in which case it does not require the formalities of a conviction. There may be a sepa- rate conviction as under ordinary acts, .and a warrant founded on it, though by the provisions of this particular act such a con- viction may be dispensed with in favour of the prosecution (s). A wairant, however, has been held bad which contained no adjudication of imprisonment {t). And the warrant of commitment must agree with the con- Commifment viction. wuh'conf Where, therefore, a conviction under 4 Geo. 4, c. 34, s. 3, viction. adjudged that the servant should be imprisoned in the house Woody. of correction, there to remain iind be held to hard labour for one ^"^nwUk. month, but the commitment (which was by a separate instru- ment) required the keeper to receive him into custody, there to remain and he corrected, and held to hard labour for one month (following the words of 20 Geo. 2, c. 19, s. 2), it was held that Correction meant something more than liard labour, and that the commitment was bad, as varying from the conviction and ordering a punishment not warranted by the statute (m). A servant convicted under this act, who has reason to think Habeas he is wrongly convicted, may apply for a habeas corpus ad ''"'^P"'' ' subjiciendum, or, to save the expense of his being brought up "howMuse on habeas corpus, a rule may be obtained on his behalf from why one either of the courts at Westminster, calling on the justices, the p^iou'ii no' prosecutor, and the keeper of the gaol in which he is confined, to show cause why a habeas corpus iho\\\(\ not be issued, or why he should not be discharged out of custody without being brought up. Notice of tliis rule must be given to all the par- ties. But if no cause be shown, a habeas corpus must still be issued before the prisoner can be discharged (.r). (r) Re Gray, 2 D. & L. 549 ; to be discussed, and, thougli he Re Bailey, 3 E. & B. 607 ; S. C. regretted that the defendant 23 L. J.. M. C. 161. should be put to the expense of (s) Re Bailey, uhi supra. a habeas corpus, said he could {t) HammrnKTs Case, 9 Q. B. not alter the practice in that 92 ; Re Geswood, 2 E. & B. 9.52. particular." " However," said (ii) Wood V. Fentvick, 10 M. & Pollock, C. B., " we have adopted W. 195 ; see Kirhy v. Simpson, a different practice." The case 10 Exc. 358 ; S. C. 23 L. J., M. of Ex parte Jncklin, 2 D. & L. C. 165. 103, in which Coleridge, J., [x) In Ex parte Cross, 2 H. & granted such a rule, and the note N. 354, Pollock, C. B., in grant- of the reporter to that case, "that ing a rule of this sort in the the same course had been adopted Court of Exchequer, referred to in several late cases" were not Ex parte Martins, dHowiX. \d\',m called to the attention of the which Patteson, J., " was in- Chief Baron. The practice now formed by one of the Masters of seems to be similar in all the the Crown Office, that it was courts. In Ex parte Geswood, 2 never the practice in the Queen's E. & B. 952, the validity of the Bench to waive the necessity of commitment was discussed, and a party apj)earing before tlie the prisoner ordered to ])e dis- court on a haljens corpus, where charged without being brought the validity of the commitment is personally into court. 342 JURISDICTION OF JUSTICES IN DISPUTES, ETC. Return to Where a return by a gaoler to a habeas corpus, set forth a bad habeas cter to dismiss him. Lord Campbell, C. J., held such conduct of the men to be illegal. Moreover, if either masters or servants conspire to effect a re- duction or increase of wages by the use of violence, threats, in- timidation or other unlawful means, they will be guilty of an illegal act, and may be indicted for such conspiracy (^). It is not, however, thought necessary further to advert in this place to the law applicable to the crime of conspiracy, as a discussion of it would lead us beyond the ])roper linnts of this work {ii). It maj', however, perhaps with propriety, be here stated that a conspiracy has been defined to be " an agreement for an unlaw- ful purpose, or to effect a lawful purpose by unlawful means" (:r). But Lord Denman, C. J., in one case {y), said he thought the antithesis not very correct ; and, in another (2), said the words "at least" should accompany the definition. AVhere a party of coal-whippers having a feeling of ill-will to a coal-lumper who paid less than the usual wages, created a mob, and riotously went to the house where he kept his pay-table, and cried out that they would murder him, and began to throw stones, brickbats, Sec, and broke windows, and partitions, and part of a wall, and continued after his escape throwing stones at the house till they were compelled to desist by the threats of the police, it was held by Gurney, B., that they might be convicted of beginning to demolish under the stat. 7 & 8 Geo. 4, c. 30, s. 8, though their principal object was to injure tlie lumper, provided it was also their object to demolish the house, eitiier on account of its being used by him o'r his men, and though they had not any ill-will against the owner of the house personally (a). (;•) Ibid.; and see R. v. Ferguson, 2 Stark. 489, where an indictment against workmen for conspiring to prevent their masters from taking any apprentices, was held to be supported by proof of a conspiracy to prevent their taking more than a certain number, in proportion to the number of journeymen employed. (s) 5 Cox, Crim. Cas. 162. (0 See R. V. Duffield, 5 Cox, Cr. C. 404; R. \. Rowlands, ibid. 436. (m) See further on this subject 2 Russ. on Crimes, by Greaves, bk. 2, ch. 2, p. 674 ; and R. v. Kenrick, 5 Q. B. 49 ; R. v. Button, 11 Q. B. 929, where other autho- rities upon the subject may also be found. See also a learned note to Mr. Justice Coleridge's edition of Blackst. Conim. vol. iv. p. 136, where he explains the confusion which has arisen in many cases from the fallacy of separating the means from the end; and considering that any means could possibly be lawful, of which the end was unlawful, or on the other hand any end lawful, the means to which were unlawful. (x) R. V. Jones, 4 B. & Ad. 319; R. V. Seward, 1 A. & E. 713; OConnell v. R., 11 CI. & F. 233. (v) R. v. Peck, 9 A. & E. 690. (z) R. V. King, 7 Q. B. 788. (a) R. V. Batt, 6 C. & P. 329. ( 361 ) CHAPTER XI. LEGACIES TO SERVANTS. It is thought convenient to collect into a separate chapter the whoentitied various decisions upon this subject, as the question, Whether par- to legacies as ticular individuals are entitled to legacies left to a class of per- ^'^''^^"'^ sons as "servants," frequently arises; and the answer to it rather depends upon the words of the will and the intention of depends on the testator in each case, than upon the strict legal construction intention of of the contract into which he has entered with the persons ' ^ estator. claiming the legacj'. For it by no means follows that every person with whom a testator had entered into a contract of hiring and service, was an object of his testamentary bounty ; although, in many cases, a clue to his intention may be found by ascertaining the exact nature of such contracts. For similar reasons no rule can be laid down which will be applicable to all cases. Each case must depend upon its own particular circum- stances. It is, however, of course, necessary that a person claiming to be entitled to a legacy left to each one of a class of persons, should be one of that class to whom the legacy is left — that a person claiming a legacy as a servant should be a ser- ■ vant — otherwise he cannot be entitled to it. It has, therefore, But servant been held (a) that a person who was not obliged to give up his ™"st serve whole time to his master, although in some sense he migiit be ctusiveiyT called a servant, was yet not entitled to a legacy left to servants. Thus whei'e (b) the Duke of Bolton by his will devised Townsiiend " unto such of my servants as shall be living with me at the ^- ^^'""'^o'"- time of my death one year's wages:" The Lord Keeper said, j*.^*^ P^^/l "°* "stewards of courts, and such who are not obliged to spend ^ouse or be their whole time with their master, but may also serve any fed by him. other master, are not servants within the intention of the will, but I will not narrow it to such servants only that lived in the testator's house or had diet from him." Upon similar principles it has been held that a servant to be So, he must entitled to a legacy left to "servants," must not be subject to ""t besub- the orders of any other person than the testator. That is, that ^o^gnyone^"^* a person serving the testator under a contract made by the tes- but testator. tator with that person's master, does not come within the class of persons contemplated by the will, although the testator might in some sense be considered his dominus: pro tempore. Thus where (c) a testator, after bequeathing legacies to two Coachman (a) This is in accordance with (r) Chilcot v. Bromley, 12 Yes. the decisions on the law of set- 114; and see Quanriaii v. Bur- tlement, ante, p. 49. nett, 6 M. & W. 499, ante, p. (6) Townshend v. Windham, 2 199. Vern. 546. 3G2 LEGACIES TO SERVANTS. SUpplilHi to testator by job iiiasttr, witb carriage and horses, is not the testator's servant. Chilcot V. Bromley. AliiiT, eoach- iTian hired by testator, al- though job- master paid his wages and found livery. Jf award v. Wilsott, Bulling v. Ellice. Farm bailiff lield to be a servant. of his servants by name, if in liis service at the time of bis de- cease, gave and bequeathed unto all bis " other servants" who should be living with him at tlie time of his decease 50/. each, and \Ql. each for mourning; and by a codicil revoked the legacies of 50/. and 10/. for mourning to his other servants not particularly named, and made the following beque.'^t : "To all my other servants in lieu thereof tiie sum of .500/. each, and 20/. each for mourning:" Sir W. Grant, M. R., held that a coachman supplied, in the course of business, with a carriage and horses hired bj' the year from a job-master, was not entitled to the legacy as a servant within the intent and meaning of the will. The coachman, in that case, did not board or lodge in the testator's house, but received from him 12s. a week as board wages, and a livery with the other male servants, the job-master also paying him 9s. a week ; but the coachman served no other person than the testator, and was returned by him as his coachman under the act imposing a duty on male servants. However, Sir W. Grant observed, truly, that the coachman was merely the subject of the contract, which was with tlie job-master, not a party to it. And in Howard v. Wilson (d), in a suit of subtraction of legacy, a coachman, a married man, original/// liircd by, and who had lived five years with a testatrix, residing over her stables in town, occasionally accompanying her into the country, where he lived in the house, though, like all her servants, on board wages, waiting sometimes at table, and remaining with her though she changed her Job-master, was held entitled under a bequest " to each of my servants living with me at the time of my death 10/.;" although the testatrix i)'d\d a Job-master 200/. a year, out of which he paid the coachman jcages and board wages (except 3s. a week extra in the country), and found liin) in liveries ; Sir J. NichoU distinguishing the case from Chilcot V. Bromley (e). The late Earl of Leicester by his will (_/") gave "one year's wages in advance to each of my servants in ray service at my death, who shall have lived with me five years or upwards, and one-half of a year's wages to each of my other servants in my service at my death ; the said several legacies to my said ser- vants to be in addition to whatever sura may be due to them respectively for wages up to my death ; and also an additional sum of 10/. to each of my upper servants and of 5/. to each of my under servants respectively for mourning. And I direct that each of the said legacies expressly given for mourning, and each of the said legacies to ray said servants shall be paid within one calendar month next after my death." Knight Bruce, V. C, held it to be perfectly plain that a farm-bailifi', who had lived Avilh the Earl twenty-eight years, at 350/. a year, living on the home farm within the park, rent free, the Earl paying all rates and taxes, and who was allowed keep for a cow and a horse, and to take pupils to instruct in agriculture, was a ser- vant within the meaning of the will, and clearly entitled to his (d) 4 Hagg. 107. (e) Uiii supra. (/) 9 Jurist, 936. LEGACIES TO SERVANTS. 363 year's wages of 350Z. {g'), and interest at four per cent, from one month from the testator's decease, the time when the legacy was directed by the will to be paid. Where {h) the Earl of A. by his will, after bequeathing lega- Ogie^. cies to several servants by name, bequeathed "to each person ^^°''9'"'- as a servant in my domestic establishment at the time of my "Servants decease a year's wages beyond what shall be due to him or her estabUsh- for wages :" Knight Bruce, V. C, held that a head gardener at ment" only weekly wages, who had formerly resided in a garden-house in the InAomlex- middle of the garden (wliich had been furnished by the Earl, vants. and all the expenses of wliich were defrayed by him, and the domestic work of which was performed by his domestic servants and a charwoman paid by him), but, on the Earl wishing to pull down tlie garden-house, had removed to another cottage belonging to the Earl in an adjoining village, and who was allowed milk and firewood, was entitled to the legacy. But Lord Truro, on appeal, reversed that decision, considering that the testator had in view the distinction between indoor and outdoor servants when he used the terra "servants in my domestic establishment." Moreover, to entitle a servant to a legacy of a year's wages Servant must it has been held that he must have been a yearly servant, and a ^f^^ yearly servant who has been paid z^eeATy wages is not entitled. Thus where a will contained the following words, " I give to each of ^°q„/' my servants owe ?/ffl7-'s wages over and above what may be due servant at to them at the time of my decease," a question was made wpcW^ wages whether a person who had worked in the testator's warden, ""' entitled under his gardener, for several years, at loeehly ivages, and a yearns wages, boy who had served the testator for some time as a cowboy, at iceehly wages, and neither of whom resided with or formed part of the testator's family, were to be considered as entitled under the will to a year's wages: but Sir J. Leach, M. R., was of opinion that these persons were not servants in tlie sense in which the testator had used the expression. In speaking of a year's wages the testator plainly used that expression with reference to family servants usually hired by the year {i). And so where {h) a testator by his will gave " to each of his Biackweii servants living with liimat his decease, and who had lived with ^•P<">n'tnt. him three years," a legacy of one year's wages, Sir G. Turner, Nor gardener V. C, held, that a head gardener v/ho at the time of the death of tages. ^ the testator lived in a cottage of the testator in the grounds, free of rent, and was employed at 17s. a week, was not entitled to the legacy ; as aithough clearly a servant, and not to be ex- cluded on the ground that he was not living in the same house with the testator, yet the bequest only applied to servants hired liy the year. He could not impute to the testator that he meant by a year's wages, the agefregate amount of fifty-two weeks' wages. And as the evidence on the part of the plaintiff failed (g) The \0l. for mourning had (i) Booth v. Dean, 1 Myi. Sf K. been paid. 5()(). But see Thrupp v. Colletl, (h) Ogle v. Morgan, 19 L. .1., post, p. 364. Cli. Cas. .531 ; reversed by Lord (/c) Blnckwell v. Pennant, 9 Truro, L. C, 1 De G. M-N.& G. Hare, 551. 359. Waidron. 364 LEGACIES TO SERVANTS. to make out that lie was a yearly servant, liis claim was dis- missed with costs. Br^-iiinv. Upon the unthoritv of these cases, a similar decision was made in Irehind, in a case(/; in winch a testator bequeathed " unto each and every of the servants, male and femide, who shall respectively have been living in my service for the space of six calendar months immediately previous to my decease, the amount of one year's standing wages over and above any yearly salary or wages I may owe them respectively at my decease." A person who stated that he was "a servant in the employ- ment of the testator as a gardener for a period of nearly eleven years ])rior to his decease, and was hired by the testator as such servant on the 17th of March, 18-41, at wages or remuneration equivalent to the sum of 52/. a year, payable by a weekly allowance of 12.<;. Gd. in money, and by means of a house rent free, and a certain allowance of milk and coals yearly ; ail of which money and other wages and allowances were equivalent in value to the said yearly salary of 52Z. a year," was held by Brady, L. C, not entitled to any legacy under the above be- quest, as the terms of the bequest made it essential that the servant should have been engaged on a yearly hiring and wages, and it could not be inferred from the petitioner's statement that there was a yearly hiring, or a hiring at yearly wages. But he (the L. C.) thought it certainly not of any importance that the petitioner did not live in the house, nor that his wages were paid weekly or at irregular intervals, if they were in truth yearly wages. Thrupj) V. However, where (m) a testator, among other pecuniary lega- cies, gave to his executors the sum of 1,OOOZ. to be equally divided between all the servants in his service at the time of his decease (except as in his will mentioned), it was held by Sir J. Romilly, M. R., that a head gardener and under gardener, at W'Cekly wages, who lived at tlieir own houses, adjacent to that of the testator, and were occupied in their employment of gar- deners the whole of the working days, and occasionally on Sundays, to feed the cattle and attend to the garden, and had no employment from any other j)erson during tlieir engagement with the testator, were servants within tlie meaning of the will. " The case of Turonshend v. Windham{n)," said the M. R., "lays down that the mere fact of responsibility is not a ground upon which the court ought to proceed, and it would appear to me a very strange decision to hold that a pei-son is not a servant because he does not live in the house but in a cot- tage belonging to his master. It is a common thing to pay gardeners by the week. The gardener was in the employment of the testator for upwards of a year, and during the whole of that time was engaged in the management of the garden. I can see no definition of 'servants' which would exclude the gardener. Tlie same observation applies to the under gardener, and he also is entitled as one of the servants ot the testator." (/) Breslin v. Waidron, 4 Ir. N.S. \U ; S. C. 2Q Beav. 147. Ch. C. 333 (IS.'So). (w) 2 Vern. d^ii, supra, p. 361. (?«) Thrupp v. Collet t, 5 Jurist, CoUett. LEGACIES TO SERVANTS. 365 The servant also must, generally speaking, continue in the Service must service of the testator to the time of his death. d""'li""f '" Sir Robert Henley, by will (o), gave lOOZ. apiece to all his tator. servants. The court declared that none but such as were his j„„ggy servants before the making of the will {p), and did so continue Henley. to be servants to him until the time of his death, could have any pretence to the legacy : and such only as were his menial ser- vants, and lived all along in the house with him from the date of the will until his death, and no others. But where {q) a tcstittor bequeathed a legacy to Jane H., ''if Herbert in his service at the time of his decease," and it appeared that ^- ^''"^■ Jane H. had quitted his house a few days before his death, Lord Quitting Eldon held, that parol evidence was admissible to show that not'servke. though she had quitted liis house, she continued and was con- sidered by him as still in his service: and upon that evidence the legacy vvas established. And in the subsequent case of Parker v. Marchant (r), where Parker v. a testator had several servants, and by a codicil to his will be- ^i"rchant. queathed to some of them by name legacies of ],000Z. eacli, and Servant who then gave " to the other servants 5U0Z. each;" it was held by telutorat Lord Lyndhurst, L. C. (affirming the decision of Knight Bruce, date of win V. C), that A. R., a female servant who was in the testator's ['„^nV''bV'^'^' service at the date of the codicil, though for ten weeks only, iiis^death, and quitted it three years and a half before his death, was enti- iifid entitled, tied to a legacy of 500/., considering that the case of Jones v. q"es"to^ Uentey (s) did not apply. And his lordship said, " The testator " other ser- liad several servants, some of whom had lived in his service for ^ants." many years, as he states in his codicil. Tiie others lived with him for a shorter period of time. He distinguishes between them. He gives to three of them by name, who had lived in his service for many years, 1,000/. each, and he then expresses himself thus, ' to the other servants 500/. each.' What is meant by tne other servants? The rest. After taking out of the whole class the three individuals who are named, jMrs. D. and the two others, to whom he gives 1,000/. each, he then gives 5(i0/. to the remainder. It appears to me as if he had named them, and as he annexes no condition to the gift, I am of opinion that A. R. is entitled, on the construction of this codicil, to the legacy of 500/." Where a man on his death left among his papers two letters Promissory sealed and directed "for Sarah Gough, my late servant," one ""tesleftby of which contained a promissory note for 400/., and the letter able to his stated that it was '•' in consideration of her long and faithful servant, but services" (she having been his housekeeper, but having left on not delivered (o) Jones v. Henley, 2 Chanc. infra. Rep. 361. iq) Herbert v. Reid, Ki Ves. ( p) The question does not 481. appear to have been raised in (r) 6 Jurist, 292 ; S. C. 1 Y. any subsequent cases, whether it & C, N. S. 290 ; S. C. on appeal, was necessary that the servant 7 Jur. 457 (the point in the text should have been in the service is not noticed in the report, 2 Cr. of the testator at the date of his & Ph.) will, as well as at the time of his (s) Ubi supra. death. See Parker v. Marchant, 306 LEGACIES TO SERVANTS. lifetime, void. Gough V. Findon. Trimmer y. Da/ibi/. How far lei;acy is a satistacUun of debt for wages. ilatthi'ws V. Multliews Re Fuller. having a child by him), and that his executors would pay her tlic amount of the note; and the other letter was similarly addressed, and inclosed a note for 200/. and in the letter there was tlie following passage: — " In addition to any sura I owe you, I enclose you 200/. as a mark of my respect," and there was also a recommendation that the money should be invested for the benefit of the child ; it was held tliat the notes were void as notes for want of delivery in the maker's lifetime, and there- fore the executors were not liable upon them ; and they were also void as testamentary dispositions, for non-compliance witli the Wills Act (^). And a similar decision was made by Kindersley, V. C, in a case (m) in which a housekeeper who had been forty years in the testator's service, and to whom an annuity was bequeathed by his will, claimed some Austrian bonds which were in a box belonging to the testator, of whicli, and the kej', she had the custody. The bonds were rolled up in packets, and one con- taining ten had this indorsement, signed by the testator, " The first five numbers of the Austrian Bonds belong to and are Hannah Danby's property. Signed, J. M. W. Turner." It was iield that as there had been no actual transfer or delivery of the five bonds, they still formed part of the testator's assets, for although H. D. had the custody she had not the possession of the bonds. When a legacy is left by a master to his servant, it will, sometimes, be considered as a satisfaction, either in the whole or in part, of any wages due at the time of the master's death, unless a contrary intention ajipear from tlie master's will (x). Courts of equity, however, are inclined to infer a contrary in- tention from slight circumstances. Thus, in Matthews v. Mat- thews ( y), Sir Thomas Clarke, M.R., said he remembered a case, before Lord Hardwicke, where an old lady, indebted to a ser- vant for wages, by will gave ten times as much as she owed or was likely to owe ; yet because the legacy was made payable a month after her own death, the court laid hold of that cir- cumstance to take it out of the general rule(2). A testator (a) bequeathed by will as follows : — " Likewise should my executors think proper to my man-servant whom I call Sam (the plaintiff') I give 20/. conditional on his continuing to conduct himself faithfully in all respects," and appointed executors. The will was made and the testator died in the (t) Gough V. Findon, 21 L. J., Exc. 58 ; S. C. 7 Exc. 48 ; see Huhe v Hulse, 17 C. B. 711, 721. {u) Trimmer v. Danhy, 25 L. J., Ch. 424. {x) See Le Sage v. Coussmaker, 1 Esp. 188. (y) 2 Ves. sen. 636 ; see also Chancey's Case, 1 P. Wms. 408. However, in Richardson v. Greese, 3 Atk. 69, Lord Harkwicke said that legacies to servants had never been held to be in satis- faction of debts. In France le- gacies to servants are not consi- dered as satisfaction for wages, Code Civ. liv. 3, tit. 2, sec. 6, 1023. (z) In Roch v. CalJen, 6 Hare, 531. An annuity of 20/. left to a servant by a codicil was held to be cumulative upon and not in substitution of a similar an- nuity left by the will. • (a) Re Fuller, 2 E. & B. 573. LEGACIES TO SERVANTS. 3G7 district of tlie County Court of Kent. The executors renounced probate, and M. wlio resided in London, took out administra- tion with the will annexed, in the Prerogative Court of Can- terbury. Sam sued M. in the County Court of Kent for the 20/. But the Court of Queen's Bench granted a proliibition on the ground that the grant of letters of administration was part of the cause of action, and the judge of the County Court of Kent had no jurisdiction in respect of it over M. And it was doubted whether tiie bequest was a legacy which might be recoveied in tlie proper county court, or a bequest in trust only to be enforced in equity. Lord Campbell thought it was a legacy which might be recovered in the county court. Germane to the subject we liave been treating of, and there- Direction by fore proper to be introduced in this place, are the cas.s in which employ par- the question has arisen whethei- a direction or injunction in aticuiarser- will to employ a particular steward or agent imposes on the vant or agent, devisee an obligation in the nature of a trust in favour of the person so named {h). This question arose in the case oi Lawless Lawless V. Shcao (c). There the testator, after devising his estates, ^' ■^'^''"^^• charged with certain annuities, to his friend Shaw (then aged twenty years) for life, with remainders over in strict settlement, and directing t-lie residue of his personal estate to be invested in the purchase of other real estates, to be settled in like manner, and after bequeathing to his friend and agent. Lawless, 100/. as a token of esteem, and after directing his executors to pay to his agent 1-30/., to be distributed among the poor on his estates, declared it to be his " particular desire that his executors, whilst acting in the nianagemcnt of all or any of his affairs, under his will, as also his friend Shaw, when he should enter into the receipt of the rents of his estates, should continue Law- less in the receipt and management thereof, and likewise should employ and retain him in the receipt, agency and management of lands to be purchased and settled in pursuance of the will, at the usual fees allowed to agents, he having acted for the testator since he became possessed of the estates fully to his satisfaction." The testator also bequeathed to his friend and agent, Lawless, 150/. to purchase a monumental tablet. Soon after the testa- tor's decease, Shaw dismissed Lawless from his office as land agent, but without impeaching his character or capacity. Lawless filed a bill in Chancery against Shaw, claiming to be reinstated, which was dismissed by Lord Plunket, and his decree (though upon a rehearing reversed by his successor. Lord St. Leonards) was afterwards affirmed in the LLnise of Lords. In delivering judgment in the House of Lords, Lord Cotten- ham, C, after stating that all cases upon a subject like this must depend upon the testator's intention, and that Lawless was • only agent to the testator in his lifetime during his pleasure, and that by the terms of the vvill the testator desired he should con- tinue in the agency, and that the natural presumption was that the testator wi^hed iiim to continue upon the same terms, and showing to what absurd conseqiuinces the ujjholding Lawless' (i) See generally on this sub- 616. ject, Krriglit v. Knight, 3 Beav. (c) Lloi/d cf Goold, 151s S. C. 148; Oree9i v. Marsden, 1 Drew. in Doui. i'roc. 5 CI. & F. 129. 368 LEGACIES TO SERVANTS. Lawless V. cliiiiii ■\vould lead, said, " Tliere is, it is true, a great variety Shaw. pj< cases in wliicli the expression of a wish lias been held to create a trust; but the rule of construction in tliese cases is that there should be certainty in the object and in the subject of a trust so created ; that the expressions in the will should not leave the matter in a doubtful ambiguity. Ca?y v. Cary (d) has been referred to. Tliere Lord Redesdale expressed th(! rule in these words, ' When a testator, having in his power to dis- pose of pro))erty, exjjresses a desire as to the disposition of the property, and the objects to which he refers are certain, the de- sire so expressed amounts to a command, and if he shows his desire, he in fact expresses his intention, provided the objects to which he refers are so defined that a court can act upon the desire so expressed.' In Foley v. Parry (e) the court held that a desire that a devisee in remainder should be educated and maintained from the income of the devised property created a trust in his favour. There everything concurred to show that such was the intention of the testator. In Hihhert v. Hib- hert if) a trust Avas held to be created as to a West Indian estate, and H., the person in whose favour the desire was made, was appointed consignee. But there the words were clear and expres> in his favoui", though the estate to which they applied ap- peared doubtful. In Tibbits V. TiJ)bits{g) there was no doubt as to the subject matter, but still that case carried the doctrine of creation of trusts further than any which had preceded it, though, as it seems to me, not so far as the decree (of Lord St. Leonai'ds) in the present case lias carried it. It is true, that all the court requires is that the subject and object shall be defined and certain. Then what is the subject in the present case? It is the right to be employed in the receipt of the rents, and the agency and management, of the land of another person upon the usual fees. What is the necessary eft'ect of this alleged right. It goes to exclude Shaw from the management of his own estate, or from the recei{)t of the rents themselves. Then this question arises : Suppose that he parts with the estate, would it, in the hands of a purchaser, be subject to the same liability to this claim of agency on the part of Lawless? Was it the desire or the wish of the testator that it should be so ? or did he merely wish that his devisee should employ a man whose conduct had given satisfaction to himself? Some cases of difficulties of another kind were put in the course of the argument. It was asked, among other things^ wliether, if a testator should say that he desired his son to be educated at a particular school that would create a trust in favour of the schoolmaster ? That would certainly be a matter for the ad- vantage of the schoolmaster, but it couhl not be contended that he would have a right to enforce the performance of this desire of the testator. It would be an expression of desire made for the benefit, not of the sclioolmaster, but of the scholar. Having examined all the cases, and quite satisfied myself that there is {(i) 2 Sch. & Lef. 173. (/) 3 Mer. 68L (e) 5 Sim. 138, affirmed on {g) 19 Ves. G56 ; Jac. 317. appeal, 2 M. & K. 138. LEGACIES TO SERVANTS. 369 not a case which comes at all near the present, T mean indeed that all are against the construction contended for by the respondent, I am of opinion that the judgment pronounced by Lord Plunket was correct, and that the decree of Lord Chan- cellor Sugden must so far be reversed." In a previous ease(/>) in which a testator devised his estates Auditor. to trustees upon trust to let the same, and apply the rents in wuuams paying off certain incumbrances, and appointed A. to be auditor ^- (Corbet. of the accounts during the execution of the trusts, and directed the trustees to pay him the usual annual remuneration ; Sir L. Shadwell, V. C. held that the trustees were not justified in re- moving A. from the office, there being no imputation on his conduct, for that he had as much right to be auditor as any one of the devisees had to the estates. Where a testator (^), after leaving some legacies proceeded x^n/^A/ thus, " I trust to the liberality of my successors to reward ^- ^"'i/^'^- any others of my old servants and tenants according to their deserts," Lord Langdale, M. R. thought he could not be under- stood to have intended to create an imperative trust. (h) Williams v. Corbet, 8 Sim. (?) Knight v. Knight, 3 Beav- 349. 148. R 5 APPENDIX. 5 Eliz. c. 4(a). An Act containing divers orders for Artificers, Labourers, Servants of Husbandry and Apprentices. Although there remain and stand in force presently a great num- A repeal of ber of acts and statutes concerning the retaining, departing, wages so much of and orders of apprentices, servants and labourers, as well in hus- J"™^'' ^^^' bandry as in divers other arts, mysteries and occupations, yet partly cerns the for the imperfection a!id contrariety that is found, and doth appear hiring, keep- in sundry of the said laws, and for the variety and number of them, j"^' '^.'^''?"" and chiefly for that the wages and allowances limited and rated in o'r^ordw of" many of the said statutes, are in dive.s places too small and not servants, la- answerable to this time, respecting the advancement of prices of tourers, &c., all things belonging to the said servants and labourers : the said ^i" ^jt;'!,!," laws cannot conveniently, without the great grier and burden of the who shall he poor labourer and hired man, be put in good and due execution: compellahle and as the said several acts and statutes were, at the time of the J°*^'^®'" making of them, thought to be very good and beneficial for the com- and who in' monwealth of this realm (as divers of th^m are), so if the sub- husbandry stance of as many of the said laws as are meet to be continued shall ^"'^ "*^"' be digested and reduced into one sole law and statute, and in the tlg^s'^'^&c. "" same an uniform order prescribed and limited concerning the wages and other orders for apprentices, servants and labourers, there is good hope that it will come to pass, that the same law (being duly executed) should banish idleness, advance husbandry, and yield unto the hired person, both in the time of scarcity and in the time of plenty a convenient proportion of wages. 2. Be it therefore enacted by the authority of this present parlia- ment, that as much of all the estatutes heretofore made, and every branch of them, as touch or concern the hiring, keeping, departing, V. orking, wages, or order of servants, workmen, artificers, appren- tices and labourers, or any of them, and the penalties and forfeitures concerning the same, shall be, fom and after the last day of Sep- tember next ensuing, repealed and iitterl)' void and of none effect ; and that all the said statutes and every branch thereof, or any mat- ter contained in them and not repealed by this statute, shall remain and be in full force and effect, anything in this statute to the con- trary notwithstanding. 3. And be it further enacted, by the authority aforesaid, that no No person manner of person or persons, after the aforesaid last day of Septem- a sxrva^nt in ber, now next ensuing, shall retain, hire, or take into service, or their sciences a) This statute is copied from Pickering's Statutes at large. 372 APPENDIX. under one whole year. AVhat sort of ptrsoris are cnni- pellal>le to serve in any of tlie crafts aforesaid. No person shall put away his servant, nor shall any servant depart from his master before the end of his time. No servant shall depart or be put away but cause to be retained, hired, or taken into service, nor any person sliall be retained, hired, or taken into service by any means or colour to work for any less time or term tlian for one whole year in any of the sciences, crafts, mysteries, or arts of clothiers, woollen cloth weavers, tuckers, fullers, clotkworkers, sitereinen, dyers (b), hosiers, tailors, shoemakers, tanners, pewterers, bakers, brewers, glovers, cutlers, smiths, farriers, curriers, saddlers, spurriers, turners, cappers, hatmakers, or feltmakers, bowyers, fletchers, arrowheadmakers, butchers, cooks or millers. 4. And be it farther enacted, that every person being unmarried, and every other person being under the age of thirty years, that after the feast of Easter next shall marry, and having been brought up in any of the said art;, crafts, or sciences, or that hath used or exer- cised any of tliein by the space of three years or more, and not having lands, tenements, rents, or hereditaments copyhold or free- hold of an estate of inheritance, or for term of any life or lives of the clear yearly value of forty shillings, nor being worth of his own goads the clear value of ten pounds, and so allowed by two justices of the peace of the county where he hath most commonly inhabited by the space of one whole year, and under their hatids and seals, or by the mayor or other head officer of the city, borough, or town corporate where such person bath most commonly dwelt by the space of one whole year, and two aldermen or two other dis- creet burgesses of the same city, borough, or town cor))orate, if there be no aldermen, under their hands and seals, nor being retained with any person in husbandry or in any of the aforesaid arts and sciences (6) according to this statute, nor lawfully retained in any other art or science, nor being lawfully retained in household, or in any office with any nobleman, gentleman, or others according to the laws of this realm, nor have a convenient farm or other holding in tillage whereupon he may employ his labour, shall, during the time that he or they shall be so unmarried, or under the said age of thirty years, upon request made by any person using the art or mystery wherein the said person so required hath been exercised (as is aforesaid), be retained, and shall not refuse to serve according to the tenor of this statute upon the pain and penalty hereinafcer mentioned. 5. And be it further enacted, that no pe.son which shall retain any servant shall put away his or her said servant, and that no person retained according to this statute shall depart from his master, mistress, or dame before the end of his or her term, upon the pain hereafter mentioned, unless it be for some reasonable and sufficient cause or matter, to be allowed before two justices of peace, or one at the least within the said county, or before the mayor or other chief officer of the city, borough or town corporate wherein the said master, mistress or dame inhahiteth, to whom any of the parties grieved shall complain, which said justices, or justice, mayor or chief officer, shall have and take upon them or him the hearing and ordering of the matter betwixt the said master, or mistress or dame and servant according to the equity of the cause (c). 6. And that no such master, mistress or dame shall put away any such servant at the end of his term, or that any such servant shall depart from his said master, mistress or dame at the end of his term (6) Sections 3 and 4 are re- pealed as to the trades, printed in italics, and dyers of wool or woollen cloth, by 49 Geo. 3, c. 109, s. 2. (c) And see further, ante, Ch. 9, and cases there cited as to form of the order. 5 ELiz. c. 4. 373 without one quarter's warning given before the end of his said term, upon aquar- either by the said master, mistress or dame or servant the one to \^^'^ warn- the other, upon the pain hereafter ensuing. '"^' 7. And be it further enacted, by the authority aforesaid, that every What sort of person between the age of twelve years and the age of sixty years, persons are not being lawfully retained nor apprentice with any fisherman or to'serv'e^by^ mariner haunting the seas, nor being in service with any kidder or the year in carrier of any corn, grain or meal for provision of the city of husbandry. London, nor with any husbandman in husbandry, nor in any city, town corporate or market town, in any of the arts or sciences limited or apjjointed by this estatute to have or take apjireiitices, nor being retained by the year or half the year at the least for the digging, seeking, finding, getting, melting, fining, working, trying, making of any silver, tin, lead, iron, copper, stone, sea-coal, stone-coal, moor-coal or cherk-coal, nor being occupied in or about the making of any glass, nor being a gentleman born, nor being a student or scholar in any of the universities or in any school, nor having lands, tenements, rents or hereditaments for term of life, or of one estate of inheritance of the clear yearly value of forty shillings, nor being worth in goods and chattels to the value of ten pounds, nor having a father or motlier then living, or other ancestor whose heir apparent he is then having lands, tenements or hereditaments of the yearly value of ten pounds or above, or goods or chattels of the value of forty pounds, nor bei ng a necessary or con venient officer or servant law- fully retained as is aforesaid, nor having a convenient farm or holding whereupon he may or shall imploy his labour, nor being otherwise lawfully retained according to the true meaning of this estatute, shall after the aforesaid last day of September, now next ensuing, by virtue of this e tatute, be compelled to be retained to serve in hus- bandry by the year vvith any person that keepeth husbandry and will require any such person so to serve within the same shire where he shall be so required. 8. And be it further enacted, by the authority of this present Par- The for- lianient, that if any person after he hath retained any servant shall feiture tor put away the same servant before the end of his term, unless it be i,is servant for some reasonable and sufficient cause to be allowed as is aforesaid, within his or if any such master, mistress or dame shall put away any such ser- term, or at| the end of vant at the end of his term w^ithout one quarter's warning given be-- j^j^ jgj.^^ fore the said end as is above remembered, that then every such without master, mistress or dame so offending, unless he or they be able to warning, prove by t.vo such sufficient witnesses such reasonable and sufficient cause of putting away of their servant or servants during their term or a quarter's warning given before the end of the said term as is aforesaid before the justices of oyer and terminer, justices of assize, justices of peace in the quarter sessions, or before the mayor or other head officer of any city, borough or town corporate, and two aldermen or two other discreet burgesses of the same city, borough or town corporate if there be no aldermen, or before the lord presi- dent and council established in the marches of Wales, or before the lord ])resident and council for the tiine being established in the north parts, shall forfeit the sum of forty shillings. 9. And if any servant retained, according to the form of this The punish- cstatutc, depart from his master, mistress or dame's service before mentofa the end of his term, unless it be for some reasonable and sufficient ^jj^'ch ner- cause to be allowed as is aforesaid, or if any servant at the end of furmeth not his term depart from his said master, mistress or dame's service his duty in without one quarter's warning, given before the end of his said term, ^"""^'^ °^ in form aforesaid, and before two lawful witnesses, or if any person 37J APPENDIX. None may depart forth of the city, town, parish, &c., with- out a testi- monial. The form of testimonial. Ko servant shall be re« or persotis conipellablp and bounden to be retained and to serve in husbandry, or in any other the art.s, sciences or mysteries above remembered, by the year or otherwise, do (upon request made) refuse to serve for the wages thai shall be limited, rated and appoiitted ac- cording to the form of this statute, or promise or covenant to serve and do not serve according to the tenor of the same, that then every servant so departing away, and every person so refusing to serve for such wages, ujjon complaint thereof made by the master, mistress or dame of the said servant, or by the party to or with whom the said refusal is made, or ])romise not kept, to two justices of peace of the county, or to the mayor or other head officer of the city, borough or town corporate, and two aldermen, or two other discreet burgesses of the same city, borougli or town corporate, if there be no aldermen where the said master, mistress or dame, or the said party to or with whom the said refusal is made and promise not kept dwelieth, or to either of the said lords presidents and coimcil of Wales and the North, the said justices, lords presidents and councils, and also the said mayors or otlier head officers, and other ))ersons of cities, boroughs or towns corporate, or any of them, as is aforesaid, shall have power, by force of this statute, to hear and examine the matter, and finding the said servant or the said party so refusing faulty in the premises upon such proofs and good matter as to tlieir discretions shall be tliought sufficient to commit him or them to ward, there tc remain without bail or mainprise until the said servant or party so offending shall be bound to the party to whom the ofJ'ence shall be made to serve and continue with him for the wages that then shall be limited and appointed according to the tenor and form of this estatute, and to be discharged upon his delivery without paying any fee to the gaoler where he or they shall be so imprisoned (rf). 10. And be it likewise enacted by the authority aforesaid, that none of the said retained persons in husbandry, or in any the arts or sciences above remembered, after the time of his retainer expired, shall depart forth of one city, town or parish to another, nor out of the lath, rape, wapentake or hundred, nor out of tlie county or shire where he last served to serve in any other city, town, corjiorate, lath, rape, wapentake, hundred, shire or county, unless he have a testi- monial under the seal of the said city or town corporate, or of the constable or constables, or other head officer or officers, and of two other honest householders of the city, town or parish where he last served, declaring his lawful departure, and the name of the shire and place where he dwelled last before his departure, according to the form hereafter expressed in this act, whicli certificate or testimonial shall be written and delivered unto the said servant, and also registered by the parson, vicar or curate of the parish where such master, mistress or dame doth or shall dwell, taking for the doing thereof twopence, and not above, and the form thereof shall be as followed! : — Memorandum. — That A. B., late servant to C. D., of E., hus- bandman or tailor, &c., in the county, &c., is licensed to depart from his said master, and is at his liberty to serve elsewhere, according to the statute in tliat case made and provided. In witness whereof, &c. Dated the day, month, year and place, &c., of the making thereof. 11. And be it further enacted by the authority aforesaid, that no person or persons that shall depart out of a service shall be retained (d) See further, ante, Ch. 9. 5 ELiz. c. 4. 375 or accepted into any other service without showing before his re- tained with- tainer such testimonial, as is above remembered, to the chief officer °?' shewing of tlie town corporate, and in every other town and place to the nionfa^l?" constable, curate, churchwarden or other head officer of the same where he shall be retained to serve, upon the pain that every such servant so departing without such certificate or testimonial shall be imprisoned until he procure a testimonial or certificate, the which if he cannot do within the space of one-and-t.venty days next after the first day of his imprisonment, then the said person to be whipped and used as a vagabond, according to the laws in such cases pro- vided, and tliat every person retaining any such servant without The master showing such testimonial or certificate as is aforesaid shall forfeit for *1'^" pay s/. every such otience five pounds, and if any such person shall be taken ethVservant with any counterfeit or forged testimonial, then to be whipped as a without a vagabond. testimonial. 12. And be it further enacted by the authority aforesaid, that all How long artificers and labourers, being hired for wages by the day or week, labourers shall, betwixt the midst of the months of March and September, be ti)f,|e a°t"" and continue at their work at or before five of the clock in the their work, morning, and continue at work, and not depart until betwixt seven and eight of the clock at night (except it be in the time of breakfast, dinner or drinking, the which times at the most shall not exceed above two hours and a-half in a day, that is to say, at every drinking one half hour, ior his dinner one hour, and for his sleep, when he is allowed to sleep, the which is from the midst of May to the midst of August half an hour at the most, and at every breakfast one half hour), and all the said artificers and labourers, between the midst of September and the midst of March, shall be and continue at their work from the spring of the day in the morning until the night of the same day, except it be in time afore appointed for breakfast and dinner, upon pain to lose and forfeit one penny for every hour's absence, to be deducted and defaulked out of his wages that shall so offend. 13. And be it also enacted by the authority aforesaid, that every No artificer artificer and labourer that shall be lawfully retained in and for tlie or labourer building or repairing of any church, house, ship, mill or every other before hla'^ piece of work taken in great, in task, or in gross, or that shall here- work be after take upon him to make or finish any such thing or work, shall finished. continue and not depart from the same unless it be for not payirig of his wages or hire agreed on, or otherwise lawfully taken or appointed to serve the Queen's Majesty, her heirs or successors, or for other lawful cause, or without license of the master or owner of the work, or of him that hath the charge thereof, before the finishing of the said work, upon pain of imprisonment by one month without bail or mainprise, and the forfeiture of the sum of five pounds to the pa: ty from whom he shall so depart, for the which the said party may have his action of debt against him that shall so depart in any of the Queen's Majesty's Courts of Record over and besides such ordinary costs and damages as may or ought to be recovered by the common laws for or concerning any such ofi'ence, in which action no protec- tion, wager of law, or essoin shall be admitted. 14. And that no other artificer or labourer retained in any service to work with the Queen's Majesty, or any other ])erson, depart from her said Majesty or from the said other person until such time as the Work be finished, if the person so retaining the artificer or labourer so long will have him, and pay him his wa.>es or other duties, upon pain of imprisonment of every person so departing by the space of one month. [Sects. 15, IG, 17, 18 and 19 repealed, 53 Geo. 3, c. 40.] 376 APPENDIX. Every re- tainer, con- trary to this statute, shall be void. Artificers coniptllable to work in liaytime and harvest. A proviso for some that go into other shires for work in haytime and harvest. ■Women compellable to serve that be above twelve, and under forty years old unmarried and forth of service. 20. And that every retainer, promise, gift or payment of wages or other tiling whatsoever contrary to the true meaning of this estatute, and every writing and bond to be made for that purpose, shall be utterly void and of none etfect. [Sect. 21 repealed, 9 Geo. 4, c. 31. ante, p. 280.J 22. Provided always, and be it enacted by the authority aforesaid, that in the time of hay or corn harvest the justices of j)eace, and every of them, and also the constable or other head officer of every township, upon request, and for the avoiding of the loss of any corn, grain or hay, shall and may cause all such artificers and persons as be meet to labour, by the discretions of the said justices or constables or other head officers, or by any of them, to serve by the day for the mowing, reaping, shearing, setting or inning of corn, grain and hay, according to the skill and quality of the person, and that none of the saiil persons shall refuse so to do upon pain to suffer imprisonment in the stocks by the space of two days and one nigbt, and the con- stable of the town or other head officer of the same where the said refusal shall be made, upon complaint to him made, shall have authority, by virtue hereof, to set the said offender in the stocks for the time aforesaid, and shall punish him accordingly, upon pain to lose and forfeit for not doing thereof the sum of forty shillings. 23. Provided also, that all persons of the counties where tliey have accustomed to go into other shires for harvest-work, and having at that time no liarvest-work sufficient in the same town or county where he or they dwelt in the winter then last past, bringing with him or them a testimonial (e) vmder the hand and seal of one justice of the yjeace of the shire or other head officer of the town or place that he or they come from testifying the same, for the which he shall pay not above one peny (other than such persons as shall be re- tained in service, according to the form of this estatute), may repair and resort in harvest of hay or corn from the counties wherein their dwelling-places are into any other place or county for the only mowing, reaping and getting of hay, corn or grain, and for the only working of harvest- works as they might have done before the making of this estatute, anything herein contained to the contrary notwith- standing. 24'. And be it further enacted by the authority aforesaid, that two justices of peace, the mayor or other head officer of any city, borough or town corporate, and two aldermen, or two other discreet burgesses of the same city, borough or town corjjorate, if there be no aldermen, shall and may by virtue hereof appoint any such woman as is of the age of twelve years and under the age of forty years, and unmarried, and forth of service, as they shall think meet to serve, to be retained or serve by the year, or by the week or day, for such wages and in such reasonable sort and manner as they shall think meet,, and if any such woman shall refuse so to serve, then it shall be lawful for the said justices of peace, mayor or head officers, to commit such woman to ward until she shall be bounden to serve as is aforesaid. {Sects. 25 to 30, inclusive, repealed, 54 Geo. 3, c. 96. Sects. 27 and 29 were previously partly repealed, 49 Geo. 3, c. 109. (e) See as to certificates to prevent settlement (which have, however, grown into disuse since 35 Geo. 3, c. 101, which ren- dered poor persons irremovable till actually chargeable), 13 & 14 Car. 2, c. 12; 8 & 9 Will. 3, c. 30; 9 & 10 Will. 3, c. 11; 12 Anne, stat. 1, c. 18 ; 3 Geo. 2, c. 29; 51 Geo. 3, c. 80; 54 Geo. 3, c. 107; 1 & 2 Geo. 4, c. 32. 5 ELiz. c. 4. 37.7 Sect. 31 repealed, 54 Geo. 3, c. 96. having been partly repealed as to distillers, 12 Ann. stat. 2, C.3. as to certain officers in the army and navy, 22 Geo. 2, c. 44. as to hatters, 17 Geo. 3, c. 55, s. 5. ffi to clothiers, Sfc, 40 Geo. 3, c. 109. jSee /ie.r v. Kilderhy, 1 JF/ni. Saund. 309, ara^i notes. Sect. 32 repealed, 5^-6 /Fw. 4- M. c. 9.] 33. And be it further enacted by the authority aforesaid, that all He that hath and every person and persons that shall have three apprentices in '•-■'ee appren- any of the said crafts, mysteries or occupations of a ctuthmaher, fuller, j-^gp Q„g sheerman, weaver {f), taylor or shoemaker, shall retain and keep one journeyman, journeyman, and for every other apprentice above the number of the said three apprentices one other journeyman, upon pain for every de- fault therein ten pounds. 34. Provided always, that this act nor anything therein contained A proviso shall not extend to prejudice or hinder any liberties heretofore f""" t.h^ 'i- eranted by any Act of Parliament to or for the company and occu- „f"!?!,i pation 01 worstedmakers and worsted weavers within the city of makers in Norwich, and elsewhere within the county of Norfolk, which liberties Norwich be in force until the beginning of this present Parliament, anything ^"'^ Norfolk, herein contained to the contrary in anywise notwithstanding. 35. And be it further enacted, that if any person shall be required The punish- bv any householder bavins' and using half a plouohland at the ™^"* "J'^"" i" .. •■ ..-n . u ..• 1 .. -Ill • thatrefuseth least in tillage to be an apprentice and to serve in husbandry, or in {^ -^^ g^ ^„ any other kind of art, mystery or science before expressed, and shall prentice. refuse so to do, that then upon the coriiplaint of such housekeeper made to one justice of the peace of the county wherein the said refusal is or shall be made, or of such householder iniiahiting in any city, town corporate or market town, to the mayor, bailifis or head officer of the said city, town corporate or market town, if any such refusal shall there be, they shall have full power and authority by virtue hereof to send for the same person so refusing, and if the said justice or the said mayor or head officer shall think the said person meet and convenient to serve as an apprentice in that art, labour, science or mystery, wherein he shall be so then required to serve, that then the said justice, or the said mayor or head officer, shall have power and authority by virtue hereof, if the said person refuse to be bound as an apprentice, to commit him unto ward, there to remain untill he be contented and will be bounden to serve as an apprentice sliould serve according to the true intent and meaning of this present act. And if any such (g) master shall misuse or evil The remedy intreat his apprentice, or that the said apprentice shall have any for the ap- just cause to complain, or the apprentice do not his duty to his ^.i,j(.]j j^ ^j,. master, then the said master or apprentice, being grieved and having used by his cause to complain, shall repair unto one justice of peace within the master, and said county, or to the mayor or other head officer of the city, town jJ^'J! whe'nthe corporate, market town or other place where the said master apprentice dwelleth, who shall by his wisdom and discretion take such order doth not liis and direction between the said master and his apprentice as the '^"^y- ecjuity of the cause shall require ; and if for want of good conformity in the said master, the said justice of peace, or the said mayor or (/) Repealed as to trades in in all trades, not merely those italics, 49 Geo. 3, c. 109. named in the statute, A', v. Col- (g) The jurisdiction of the ;;?//w/r«, 2 Lord Raym. 1410 ; S. justices extends to apprentices C. 1 Str. (Hi3. 378 APPENDIX. Where an ;i))prentice may, be dis- diarged of his appren- ticehood. Apprentices to be under twenty-one years of age. Assembly of the justices twice in the year for the due execu- tion of this statute. other head officer, cannot compound and agree the matter between him and his apprentice, then the said justice, or the said mayor or other head officer, sliail take bond of the said master to appear at the next sessions tlien to be holden in the said county, or within the said city, town cor])orate or market town, to be before the justices of tile said county, or the mayor or head officer of the said town coi- porate or market town, if the said master dwell within any such ; and upon his appearance and hearing of the matter before the said justices, or the said mayor or other head officer, if it be thought meet unto them to discharge the said apprentice of his ajiprenticehood, that then the said justices, or four of them at the least, whereof one to be of the quorum, or the said mayor or other head officer, with the assent of three other of his brethren or men of b:'St reputation within the said city, town corporate or market town, shall have power by authority hereof in writing under their hands and seals to pronounce and declare that they have discharged the said appren- tice of his apprenticehood and the cause thereof, and the said writing so being made and enrolled by the clerk of the peace or town clerk amongst the records that he keepeth shall be a sufficient discharge for the said apprentice against his master, his executors and admi- iiistrators, the indenture of the said apprenticehood or any law or custom to the contrary notwithstanding (/) ; and if the default shall be found to be in the apprentice, then the said justices, or the said mayor or other head officer with the assistance aforesaid, sh dl cause such due correction and punishment to be ministered unto him as by their wisdom and discretions shall be thought meet. 3G. Provided always, and be it enacted by authority of this pre- sent Parliament, that no person shall by force or colour of this estatute be bounden to enter into any apprenticeship other than such as be under the age of twenty-one years. 37. And to the end that this estatute may from time to time be carefully and diligently put in good execution according to the tenor and true meaning thereof, be it enacted by authority of this pre- sent Parliament, that the justices of peace of every county, dividing themselves into several limits, and likewise every mayor and head officer of any city or town corporate, shall yearly, between the Feast of St Michael the Archangel and the Nativity of our Lord, and be- (i) Tt is perfectly clear and not now to be disputed, though it was once thought otherwise, that the sessions have an original ju- risdiction under this section to discharge an apprentice, and ap- plication need not be made to one justice first, R. v. Johnson, 1 Salk. G8 ; S. C. 2 Salk. 491 ; R. V. GUI, 1 Str. 143 ; R. v. Davie, 2 Str. 704 ; R. v. Easman, 2 Str. 1014. And see Ilawkesworth v. Hillary, 1 Wms. Saund. 313, that it was the intention of the act that a master should be dis- charged of a bad apprentice, as well as an apprentice of a bad master. But the justices have no power under this section to direct the return of any part of the premium paid to t!ie master, or the non-payment of any part of it remaining unpaid. East v. Pell, 4 M. & W. m'i. Semble, per Alderson, B., that it does not apply to cases where a premium is given, but only to compulsory bindings without premium. Sem- ble, also, that R. v. ColUnhourn, uhi supra, is no authority to the contrary, as according to the re- port in Lord Raymond, the ap- prentice there had been bound before the Chamberlain, which would hardly have been neces- sary if it had not been a com- pulsory binding. 5 ELiz. c. 4. 379 tween the Feast of the Annunciation of our Lady and the Feast of the Nativity of St. Joiui Baptist, by all such ways and means as to their wisdoms shall be thought most meet, make a special and diligent inquiry of the branches and articles of this estatute and of the good execution of the same, and where they shall find any defaults to see the same severely corrected and punished without favour, affection, malice, or disj)leasure. 38. And in consideration of the pains and travel that the said The justices' justice of peace and the said mayor or head officer shall take and allowance sustain in and about the execution of this estatute, it is further ^"l "'^''^ ordained and enacted, by authority of this present Parliament, that everyjusticeof peace, mayor, or head officer.for everyday thathe shall sit in and about the execution of this estatute, shall have allowed unto him five shillings, to be allowed and paid unto him, or unto the said mayor or head officer, of the fines and forfeitures of the pains and .penalties that shall be forfeited and due unto the Queen's Majesty, her heirs and successors, by force of this estatute, in such manner and form as the said justices have been heretofore commonly paid for their coming and charges at the quarter sessions, so that the sitting of the said justices, or mayor or head officer, be not at anyone time above three days, and for the matters contained in this estatute. 39. And be it enacted, by authority aforesaid, that the one-half of -who shall all forfeitures and penalties expressed and mentioned in this estatute, have the other than such as are expressly otherwise appointed, shall be to our forfeitures sovereign Lady the Queen's Majesty, her heirs and successors, and i,, thissta- the other moiety to him or them that shall sue for the same in tute. any of the Queen's Majesty's courts of record, or before any of the justices of oyer and terminer, or before any other justices or president and council before remembred, by action of debt, information, bill of complaint or otherwise {k), in which actions or suits no protections, wager of law, or essoin shall be allowed; and that the said justices, justices or two of them, whereof one to be of the quorum, and the said presi- of peace, dents and council as is aforesaid, and the said mayors or otlier mayor, &c., head officers of cities or towns corporate, shall have full pow-er and Jje^ermfne^' authority to hear and determine all and every offence and offences all oiFences that shall be committed or done against this estatute, or against any conimitted branch thereof, as well upon indictment to be taken before them in against this the sessions of the peace, as upon information, action of debt or bill of complaint, to be sued or exhibited by any person, and shall and may by virtue hereof make process against the defendant and award execution as in any other case they lawfully may by any the laws and statutes of this realm, and shall yearly, in Michaelmas Term, certify by estreat the fines and forfeitures of every the offences contained in this estatute that shall be found before them into the Court of Exche- quer, in like sort and form as they be bound to certify the estreats for other offences and forfeitures to be lost before them, anything in this statute contained to the contrary notwithstanding (/). 40. Provided always, that this act, or anything therein contained a proviso for or mentioned, shall not be prejudicial or hurtfid to the cities of the cities of London (w) and Norwich, or to the lawful liberties, usages, customs ij™^""^"*' or privileges of the same cities for or concerning the having or taking (k) As to actions for penalties s. 3. under this section, see 31 Eliz. (?«) See Ji. v. Collinboiirn, 2 c. 5; 21 Jac. 1, c. 4; 1 Wms. Lord Raym. 1410; S. C. 1 Str. Saund. 312 a, note; Fife v. Boiis- 003; and see 54 Geo. 3, c. 96, field. 6 Q. I',. 100. s. 4. (/) And see 54 Geo. 3, c. 9G, 380 APPENDIX. He that is bound ap- prentice within the age of twenty-one years is com- pellahle to serve. A proviso for the in- habitants of Godalming, in Surrey. ■Who shall have the forfeiture in cities and towns cor- porate. A remedy for those servants which de- part from Their mas- ters and do flee into other shires. of any apprentice or apprentices, but that the citizens and freemen of the same cities shall and may take, have, and retain apprentices there in such manner and form as they mio;ht lawfully have done be- fore the making of this statute, this act or anytiiing therein con- tained to the contrary in anywise notwithstanding. [Sect. 41 repealed, 5 i Geo. 3, c 9G.] 42. And because there hath been and is some question and scruple moved whether an;/ person, being within the age of one-arid-twenty years, and bounden to serve as an apprentice in any other place than in the said city of London, should be bounden, accepted, and taken as an apprentice : 43. For the resolution of the said scruple and doubt be it enacted, by authority of this present Pailiament, that all and every such person or persons that at any time or times from henceforth shall be bounden by indenture to serve as an apprentice in any art, science, occupation, or labour, acci-rding to the tenor of this estatute and in maimer and form aforesaid, all)eit the same apprentice or any of them shall be within the age of one-and-twcnty years at the time of the making of their several indentures, shall be bounden to serve for the years in their several indentures contained as amply and largely to every intent (h) as if the same aj)prentice were of full age at the time of the making of such indentures, any law, usage or custom to the contrary notwithstanding. 44. Provided always, and be it enacted, by the authority aforesaid, that the inhabitants now dwelling or inhabiting, or that hereafter shall dwell or itihabit within the town of Godalming, within the county of Surrey, within the limits of the watch of the said town, may use and exercise such arts, mysteries and occupations, and take and use apprentices and servants in such manner and form as the inhabitants within market towns by this statute may lawfully do. 45. Provided always, and be it enacted, by the avtthority aforesaid, that all manner amerciaments, fines, issues and forfeitures which shall arise, grow or come by reason of any offences or defaults men- tioned in this act or any branch thereof witliin any city or town corporate, shall be levied, gathered and received by such person or persons of the same city or town corporate as shall be appointed by the mayor or other head ofHcers mentioned in this said act, to the use and maintenance of the same city or town corporate, in such case and condition as any manner other amerciaments, fines, issues or forfeitures have been used to be levied and employed within the same city or tovvn corporate by reason of any grant or charter from the Queen's Majesty that now is, or of any her Grace's noble progenitors, made and granted to the same city, borough or town corporate, any thing or clause before mentioned and expressed in this act to the contrary notwithstanding. [Sect. 46 is merely a proviso that Hits act shall not extend' to any lawful retainings or covenants had or made bejore the passing of this aci.'\ 47- And be it further enacted, by the authority aforesaid, that if any servant or apprentice of husbandry, or of any art, science or occupation aforesaid, unlawfully depart or flee into any other shire, that it shall be lawful to the said justices of peace, and to the said mayors, bailiffs and other head officers of cities and towns cor- porate for the time being justices of peace there, to make and grant writs of capias so many and such as shall be needful, to be directed (w) But an infant apprentice is not hereby rendered liable to an action for breach of the covenants in his indentures, Gyl- bert v. Fletcher, Cro. Car. 179. 22 GEO. 2, c. 27. 381 to the sheriffs of the counties or to other head officers of the places whither such servants or a))prentices shall so depart or flee, to take their bodies, returnable before them at what time shall please them, so that if they come by such process that they be put in prison till they shall find sufficient surety well and honestly to serve their masters, mistresses or dames, from whom they so departed or fled, according to the order of the law. 48. Provided always, that it shall be lawful to the high constables High con- of hundreds in every shire to hold, keep and continue petty sessions, stab)es may- otherwise called statute sessions, within the limits of their author!- ^gTs^ons*"'^ ties, in all shires wherein such sessions have been used to be kept, in such manner and form as heretofore hath been used and accus- tomed, so as nothing be by them done tlierein contrary or repugnant to this present act. 22 Geo. 2, c. 27. An Act for the more effectual preventing of Frauds and Ahuses committed by Persons employed in the Manufacture of Hats, and in the Woollen, Linnen, Fustian, Cotton, Iron, Leather, Furr, Hemp, Flax, Mohair and Silk (o) Manufactures ; and for preve7itijig unlawful Combinations of Journeymen Dyers and Journeymen Hotpressers, and of alt Persons employed in the said several Manufactures ; and for the better Pay- ment of their Wages. Whereas by an act made in the thirteenth year of his present Preamble Majesty's reign, intituled " An Act to explain and amend an Act reciting made in the first year of the reign of her late Majesty Queen Anne, clauses in intituled ' An Act for the more effectual preventing the Abuses and act 13 Geo. Frauds of Persons employed in the working up the Woollen, Linnen, 2, and 1 Fustian, Cotton and Iron Manufactures of this Kingdom, and for -^i"^- extending the said Act to the Manufactures of Leather,' " it is amongst other things enacted, that if any person or persons hired or employed in the working up of any woollen, linnen, fustian, cotton or iron manufactures shall purloin, inibezil, secrete, sell, pawn, ex- change or otherwise illegally disj)ose of any the materials with which '3 Geo. 2, c. he, she or they shall be respectively entrusted to work up such wool- ' ^' len, linnen, fustian, cotton or iron manufactures, whether the same Manufactu- be or be not first made up or manufactured, or shall reel false or T'^'^* "' vrool- short yarn, the person or persons so offending, and being thereof embeziiiin"- convicted in maimer prescribed by the said act of the first year of materials. her said late Majesty's reign, shall forfeit double the value of the damages which the owner or owners of such materials shall respec- tively sustain thereby, together with full costs of prosecution for every such offence ; and in case immediate payment of the respective forfeitures, together with such costs of prosecution as aforesaid, sliall be neglected or refused to be made, that then it shall and may be lawful to and for the same justice of the peace, before whom such conviction shall be made, to cause the offender or offenders to be committed to the house of correction, to be there whipped and kept to hard labour for any time not exceeding fourteen days; and in case (o) Repealed as to woollen, silk manufactures, 6 & 7 Vict. c. linen, cotton, flax, mohair, and 40, post. 382 APPENDIX. of a fuvtlicr conviction for a second or otlier subsequent oflPence, for imbezilliiifr or purloining any of the materials in the said act of the first year of her said late Majesty's reign mentioned, that the person or persons so oti'ending shall, for every second or other subsequent oft'etice, forfeit four times the value of the damages which the owner or owners of such materials (whether the same be or be not made up or manufactured) shall sustain tliereby, together witii such costs of prosecution as shall be adjudged reasonable by the justice before whom such offender or offenders shall be respectively convicted ; and in case immediate payment of the respective forfeitures, together with such costs of prosecution as aforesaid, shall be neglected or refused to be made, that then such justice, or any other justice of the peace for the county, riding, division, city, town or place where such oftences shall be committed, shall cause the said ofienders to be committed to the house of correction, to be there kept to hard labour for any time not exceeding three months, nor less than one month, as to such justice shall seem reasonable ; and also during the time of such commitment shall cause the said offender or offenders to be publickly whipped in the market town where such offender or offenders shall be respectively committed, at the market place or cross of such town, once or oftener, as to such justice shall seem reasonable ; and it is by the said act of the thirteenth year of his 13 Geo. 2, c. present Majesty's reigii also further enacted, that every person or 8, s. 2. persons who shall buy or receive, accept or take, by way of gift. Receivers. pawn, pledge or sale, of or from any of the persons in ttie said act of the first year of her said late Majesty's reign mentioned, any woollen, linnen, fustian, cotton, or iron manufactures, either before or after the same shall be manufactured or converted into merchantable wares, knowing the same to be so purloined or imbezilled, and being thereof lawfully convicted, shall severally suffer the like forfeitures and penalties as are by the said acts respectively inflicted on persons purloining or imbezilling such of the materials or manufactures enumerated in the said acts respectively ; all which forfeitures, when recovered, are by the said act of the thirteenth year of his pre- sent Majesty's reign directed to be applied in manner following; Sect. ?>. that is to say, one moiety thereof to the use of the party or parties injured, and the other moiety to the use of the poor of the parish only where the offence shall be committed, with the like liberty and benefit of appealing to all parties as is given in and by the said act of the first year of her said late Majesty : and it is by the said act of the thirteenth year of his present Majesty's reign also further enacted, Sect. 4. that if any person or persons hired or employed in cutting, paring, Workers in washing, dressing, sewing, making up, or otherwise manufacturing of leather em- gloves, breeches, leather, skins, boots, shoes, slippers, wares, or other terTals"^ "*' goods or merchandizes, to be made use of in any of the trades or employments, or in manner last mentioned, or in any branch or particular thereof, shall fraudulently purloin, imbezil, secrete, sell, pawn, or exchange all or any part of the gloves, breeches, leather, skins, parings, or shreads of gloves, or leather, or other materials with which he, she or they shall be entrusted to work up or manu- facture, or shall purloin, imbezil, secrete, sell, pawn or exchange any gloves, breeches, boots, shoes, slippers or wares when made, wrought up, or manufactured, or do or wilfully permit any other act to lessen the value of such, or any part of such gloves, breeches, leather, skins, parings or slireads of gloves or leather, boots, shoes, slippers or other wares last particularized, either before or after the same shall be respectively so made into wares, and be thereof law- fully convicted, in manner prescribed by the said last mentioned act, 2J GEO. -2, c. 27. 383 before one or more justice or justices of the peace for the county, riding, division, city, town or phice, where such offence shall be committed, or where the party or parties so charged shall reside or inhabit, such justice or justices shall and may award the person or persons so offending to make a reasonable and suitable recompence and satisfaction for every offence to the parties respectively injured, for the damage by them sustained, so as the same do not exceed double the value of the gloves, breeches, leather, boots, shoes, slip- pers, wares, goods or materials by such offender or offenders so purloined or imbezilled, secreted, sold, pawned or exchanged; one- half thereof to go to the party or parties grieved, and the other half to the use of the poor of the parish or place where such offence shall be committed, together with the full charges attending such con- viction, to be levied by warrant under the hand and seal or hands and seals of such justice or justices, by distress and sale of the offender's goods ; but if such offender or offenders sliall not have goods sufficient to answer the forfeitures and the expenses attending the premisses, and shall also neglect or refuse immediately to pay the same, that then the said offender or offenders shall, by like warrant of such justice or justices last described, be for every distinct offence committed to the house of correction, or other publick prison of such county, riding, city, town or place, and there kept to hard labour for the space of fourteen days, and shall be there likewise whipped in such manner as the said justice or justices shall order and direct ; and in case also of a subse- quent conviction for a second or any other such like offence, that the person or persons so offending, for every second or other subsequent offence, shall forfeit four times the value of the damages which the owner or owners of such materials, either before or after the same shall be respectively made up into wares, shall sustain thereby, together with such costs of prosecution as shall be adjudged reasonable by the justice before whom such offender or offenders shall be respectively convicted; and in case immediate payment of the respective forfeitures, together with such costs of prosecution as aforesaid, shall be neglected or refused to be made, that then it shall and may be lawful to and for such justice to com- mit the offender or offenders last described to the house of correc- tion or other publick prison, to be there kept to hard labour for any time not exceeding three months, nor less than one month, as to such justice shall seem reasonable ; and also during the time of such commitment shall cause the said offender or offenders to be publickly whipped in the market town where such offender or offenders shall be respectively committed, at the market-place or cross of such town, once or oftener, as to such justice shall seem reasonable: and it is by the said act of the thirteenth year of his present Majesty's reign 13 Geo. 2, c also further enacted, that every person and persons who shall ' *■ knowingly or willingly buy or receive, accept or take, by way of Receivers. pawn, pledge, sale, or in any other manner, of or from any of the persons offending in either of the particulars last mentioned, or of or from any other person or persons whatsoever (except of or from the person or persons in whom tlie property of such gloves, i)reeches, leatlier, boots, shoes, slippers, wares, goods, or other materials shall be at the time of such sale, pawn, or exchange), or offer so to do, such person or persons offending therein respectively shall for every offence, being convicted thereof in manner before i)rescribed by the said last mentioned aci, make such suitable and reasonable recom- pence and satisfaction, within two days next after the matter or fact shall be determined by any one or more ju.stice or justices as 384 APPENDIX. Persons employed in the manu- factures herein par- ticuiarized, being con- victed of embezzling, &e., any of the mate- rials, or of reeling false or short yarn, aforesaid, upon hearing the same, or else be subject to such distress, and, for want of sufficient distress, to be liable to the like punish- ment as is by the said act directed to be inflicted on such person or persons as shall purloin, imbezil, secrete, sell, pawn, or exchange any gloves, breeciics, leather, boots, shoes, slij)pers, wares, goods or other materials or ettect-; of that sort as aforesaid, and so in like man- ner for any secotid and every other subsequent ofl'ence : and whereas the penalties and forfeitures to which offenders against the said acts are subjected have not been sufficient to deter persons from connuitting the offences thereby intended to be prevented: and whereas many persons employed in the making of felts or hats, and in preparing or working up the manufactures of furr, hemj), flax, mohair, and silk, and also the manufactures made up of wool, furr, hemp, flax, mohair, cotton, or silk, or some of them mixed one with another, have of late been guilty of divers frauds and abuses, by purloining, imbezilling, secreting, selling, pawning, exchanging, or otherwise unlawfully disposing of the materials with which they have been intrusted ; and it is therefore become necessary to make provision for preventing such offences fpr the future : therefore, for amending and rendering more effectual the said act made in the thirteenth year of his present Majesty's reign, and for extending the provisions and regulations thfrein and herein made to the several manufactures hereinbefore mentioned, be it etiacted 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 Parlia- ment assembled, and by the authority of the same, that if any per- son or persons whatsoever who shall be hired or employed to make any felt or hat, or to prepare or work up any woollen, linnen, fustian, cotton, iron, leather, furr, hemp, flax, mohair, or silk manufactures, or any manufactures made up of wool, furr, hemp, flax, cotton, mohair, or silk, or of any of the said materials mixed one with another, shall, from and after the twenty-fourth day of June, one thousand seven hundred and forty-nine, purloin, imbezil, secrete, sell, pawn, exchange, or otlierwise unlawfully dispose of any of the materials with which he, she or they shall be respectively intrusted, whether the same or any part thereof be or be not first wrought, made up, manufactured or converted into merchantable wares (p), or shall reel false or short yarn (5), and shall be thereof lawfully convicted (r) by the oath or (if the owner thereof be of the people called Quakers) solemn affirmation of the owner of such goods or materials, or by the oath or affirmation of any other credible witness or witnesses, or by the confession of the person or persons charged with such offence, before any one(«) or more justice or justices of the peace of the county, riding, division, city, liberty, town or place where such oftence shall be committed, or where the person or per- (p) See 17 Geo. 3, c. 56, post, and sect. 16, as to tools, &c. (17) This punishment /or reel- ivg false or short yarn having been found too severe was re- pealed, 14 Geo. 3, c. 44, and a punishment by penalty for the first offence not exceeding 2Qs. nor less than 5s. ; for the second offence, not exceeding 51. nor less than 40s. ; and for the third and subsequent offences, impri- sonment with hard labour for one calendar month, and to be once publicly whipped at the nearest market town on a market day, substituted. (/•) As to form of conviction, see 58 Geo. 3, c. 51, s. 5 ; but see also 1] & 12 Vict. c. 43. is) Two, 17 Geo. 3, c. 56, s. 2, post. 22 GEO. 2, c. 27. 385 sons so charged shall reside or inhabit (which oath or affirmation the said justice or justices is and are hereby impowered and required to administer), it shall and may be lawFul to and for the said justice or justices, by warrant under his or their hand and seal or hands and seals, to commit the person or persons so convicted to the house to be com- of correction, or other public prison of such county, riding, divi- nii"eereof in writing ^"^^'Jj.'^^"^"' under his or their hand and seal, or hands and seals, to the person or materials {y) See 17 Geo. 3, c. 56, s. 10, conviction, and in premises »ioi j)ost, p. 399, as to search bejore belonging to person convicted. S2 388 APPENDIX. brouprlit to him in order to prove liis property therein, &c. Penalty on the keeper of the prison not brin{,'ing tlie prisoner. Persons aggrieved may appeal. Notice of appeal to be given. Justices at their quarter sessions to determine the appeal, &c. Penalty on workmen not return- ing the re- mains of the mate- rials within twenty-one days after persons convicted as aforesaiil, appoiiitin;^ in such notice a time and place for his, her or their attending in order to make out and prove his, her or their property in such materials so taken and detained as aforesaid ; which time so to be appointed shall be within twenty-one days and "not less than eighteen days after such notice given; and if the person or persons so convicted shall be detained in any house of correction or other prison as aforesaid, the said justice or justices shall also cause a copy of the said notice, attested vmder his or their hand and seal or hands and seals, to be delivered to the master or keeper of such house of correction or other prison, which master or keeper is hereby required to bring or cause to be brought before such justice or justices the person or persons named in such notice, at the time and j)lace therein specified, if the person or persons named in such notice be then in the custody of such master or keeper; and if any such master or keeper shall neglect or refuse so to do, such master or keeper shall, for every such neglect or refusal, forfeit to the person or persons respectively named in such notice the full value of the materials so taken, detained and sold, to be recovered by distress and sale, of the goods and chattels of such master or keeper, by war- rant under the hand and seal or hands and seals of the justice or justices signing such notice, in case the said forfeiture shall not be immediately paid. 6. Provided also, and it is hereby further enacted, that if any per- son shall think himself or herself aggrieved by the judgment or order of the said justice or justices relating to the sale or disposal of the said materials so found and detained as aforesaid, such person shall have liberty to appeal against the judgment or order of the said jus- tice or justices to the justices of the peace in the general or quarter sessions of the peace which shall be held for the same county, riding, division, city, liberty or town corporate, next after such judgment or order shall be given or made ; and that in the mean time the sale and disposal of such materials shall be postponed ; notice in writing under the hand of the person intending to appeal, signifying such his or her intention, being given to the justice or justices by whom such order shall have been made before the rime appointed for the sale and disposal of such materials ; and the justices of the peace in the said general or quarter sessions of the peace are hereby authorized and impovvered to summon and examine witnesses upon oath (or being of the people called Quakers, upon their solemn affirmation), and to hear and finally determine the matter of the said appeal ; and in case the said appellant shall not prosecute such his or her appeal, or for any other cause the judgment of the said justice or justices by whom such order shall have been made shall be affirmed, it shall and may be lawfYd to and for the justices in the said general or quarter sessions of the peace to award such costs as tliey in their discretion shall think reasonable, to be paid by the appellant for defraying the expenses sustained by the defendant or defendants in such appeal. 7. And be it further enacted by the authority aforesaid, that if any person or persons entrusted with any of the materials hereinbefore mentioned, in order to prepare, work up or manufacture the same, shall not use all such materials in the preparing, working up or manufacturing of the same, and shall neglect or delay for the space of twenty-one days {z) after such materials shall be prepared, worked up or manufactured, to return (if required by the owner or owners of («) See 17 Geo. 3, c. 56, s. 7, post. 22 GEO. 2, c. 27. 389 such materials so to do) so much of the said materials as shall not be the work is used as aforesaid to the person or persons entrusting him, her or them ^^^ade up. therewith, such neglect or delay shall be deemed and adjudged to be an imbezzilling or purloining of such materials ; and the person or persons so neglecting or delaying, being thereof convicted in manner before prescribed for the conviction of otlenders against this act, shall sutFer tlie like punishment (a) as persons convicted of imbezzil- ling or purloining any of the materials hereinbefore mentioned are by this act rendered subject and liable to. 8. And be it further enacted by tlie authority aforesaid, that it shall Justice to and may be lawful to and for any one justice of the peace of any I'^sue his county, riding, division, city, liberty, town or place, and he is hereby upon com- required, upon complaint to him made upon oath or (if the person plaint on complaining be ol' the people called Quakers) solemn affirmation of "51"' of any any offence committed against this act within the same county, riding, againTt this division, city, liberty, town or place, to issue his warrant for appre- act, and to bending and bringing before him, or before any other justice or jus- determine tices of the ])eace of the same county, riding, division, city, liberty, ^'^^ same, town or place, the person or persons charged with such offence ; and the justice or justices before whom such person or persons shall be brought is and are hereby authorized and required to hear and de- termine the matter of every such complaint, and to proceed to con- viction and judgment thereupon. 9. And for the better regulating of the journeymen and other per- journey- sons employed as manufacturers or workers in tlie manufacture of men not felts or hats, and in the woollen, linnen, fustian, cotton, iron, moliair, completing r ^ n -ii /• ^ i their work lurr, hemp, rlax or silk manufactures, or any manufactures made up fm- which of wooll, furr, hemp, flax, linnen, cotton, mohair or silk, or any of they were the said materials mixed one with another, be it further enacted by employed, the authority aforesaid, that if any person who, at any time after the '' said twenty- fourth day of June one thousand seven hundred and forty- nine, shall be hired, retained or employed to prepare or work up any of the manufactures hereinbefore mentioned for anyone master, shall neglect or refuse the performance thereof, by procuring or permitting himself or herself to be subsequently retained or employed by any other master or person whatsoever, before he or she shall have completed the work which he or she was first and originally so hired, retained or employed to perform, and which was first delivered to him or her, then and in every such case the person so ofiending, being tliereof lawfully convicted by the oath or (being of the people called Quakers) affirmation of one or more credible witness or wit- nesses, before one or more justice or justices of the peace of the county, riding, division, city, liberty, town or place where the oflfence or oftences shall be committed, shall be sent to the house of correc- to be com- tion, there to be kept to hard labour for any time not exceeding one m'tted. month (6). 10. Provided always, and it ishereby enacted and declared that this Limitation act, or anything therein contained, shall not extend or be construed to of t{jfs^'cT^™ extend to repeal any of the provisions mentioned and contained in an act made in the thirteenth and fourteenth years of the reign of King Charles the Second, intituled " An Act for regulating the Trade of Act 13 & 14 Silk-throwing ;" or in an act made in the twentieth year of the reign of ^"^^ ' '^' King Charles the Second, intituled " An Act to regulate the Trade Act 20 Car. 2, of Silk-throwing ;" or in an act made in the eighth and ninth years ^- ^• of tlie reign of King William the Third, intituled "An Act for Act 8 & 9 ° ^ Will. 3, c. 3C. (a) See 17 Geo. 3, c. 56, s. 7, (b) Sect. 9 is repealed by 17 post. Geo. 3, c. 56, s. S,jjost. 890 APPENDIX. None to be punished twice for the same oft'ence. Recital of several clauses in an act of 12 Geo. 1, c. 34. the further Encourafjement of the Manufacture of Lustrings and Alamodes within tliis Realm, and for the better preventing the Impor- tation of the same ; for the Punisliment of Silk Winders, Doiihlers, and other Persons convicted of purloining, imbezzilling, pawning, selling or detaining any silk delivered them to wind, double or work up, or after the same is wrought up, and of the Buyers, Receivers or Persons taking to pawn any Silk so imbezzilled or purloined :" but that the said provisions shall remain in full force, and the penalties and forfeitures to which offenders against the said acts are thereby respectively subjected may be levied, recovered and inflicted, in the same manner as such penalties and forfeitures might have been levied, recovered and inflicted before the making of this act ; any- thing herein contained to the contrary thereof in anywise notwith- standing. 11. Provided nevertheless, and it is hereby further enacted and declared, that no person shall, by virtue of the said acts hereinbefore last mentioned, or of this act, suffer or be liable to suffer the punish- ments thereby inflicted twice for one and the same fact or offence. 12. And whereas by an act made in the twelfth year of the reign of his late Majesty King George the First, intituled, "An Act to prevent unlawful Combinations of Workmen employed in the Woollen Manufactures, and for better Payment of their Wages," all contracts, covenants or agreements, and all by-laws, ordinances, rules or orders, made or entered into or hereafter to be made or entered into, by or between any persons brought up in or professing, using or exercising the art and mystery of a wool! comber, or weaver or journeyman wool! comber, or journeyman weaver, in any parish or place within this kingdom, for regulating the said trade or mystery, or for regulating or settling the prices of goods, or for advancing their wages, or for lessening their usual hours of work, are declared to be illegal, null and void to all intents and purposes : and it is by the said last men- tioned act(amongst other things) enacted, that if any wool! comber or weaver or journeyman wooll comber, or journeyman weaver or other person concerned in any of the woollen manufactures of this kingdom, shall at any time keep up, continue, act in, make, enter into, sign, seal or be knowingly concerned in any contract, covenant or agree- ment, by-law, ordinance, rule or order of any club, society, or combi- nation by the said act declared to be illegal, or shall presume or attempt to put any such illegal agreement, by-law, ordinance, rule or order in execution, every person so offending, being thereof law- fully convicted in manner prescribed by the said act, shall, at the discretion of the justices of the peace before whom such conviction shall be had, be committed either to the house of correction, there to be kept to hard labour for any time not exceeding three months, or to the common gaol of the county, city, town or place where such offence shall be committed, there to remain without bail or main- prize for any time not exceeding three months: And it is by the said last mentioned act also further enacted, that if any person retained or employed as a wooll comber or weaver, or servant in the art or mystery of a wooll comber or weaver, shall depart from his service before the end of the time for which he is hired or retained, or shall quit or return his work before the same shall be finished according to agreement, unless it be for some reasonable cause, to be allowed by two or more justices of the peace within their respective juris- dictions, every person so offending, being thereof convicted in manner prescribed by the said act, shall be committed to the house of correction, there to be kept to hard labour for anytime not exceeding three months ; and if any wooll comber, weaver, servant or person 2-2 GEO. 2, c. 27. 391 hired, retained or employed in the said art or mystery, shall wilfully damnify, spoil, or destroy (without the consent of tlie owner) any of the goods, wares or work committed to his care or charge, or where- with he shall be entrusted, such offender being thereof convicted shall forfeit and pay to the owner or owners of such goods or wares so damnified, spoded or destroyed, double the value thereof, to be levied by distress and sale of tlie oflfender's goods and chattels, by warrant or warrants under the hands and seals of any two or more justices of the peace within their respective jurisdictions ; and for want of sufficient distress such justices shall commit the party or parties offending to the house of correction, there to be kept to hard labour for any time not exceeding three months or until satisfaction be made to the party or parties aggrieved for the same: And it is by the said last mentioned act also further enacted, that every clothier, serge maker, or woollen or worsted stuff maker, or persons concerned in making any woollen cloths, serges or stuffs, or concerned in em- ploying wooU combers, weavers or other labourers in the woollen manufactory, shall pay to all persons by them employed in the woollen manufacture the full wages, or other price agreed on, in good and lawful money of this kingdom, and shall not pay the said wages, or other price agreed on, or any part thereof, in goods or by way of truck, or in any other manner than in money, or make any deduction from such w'ages or price for or on account of any goods sold or delivered previous to such agreement, by any person or persons whatsoever ; and for the more easy recovery of the said wages, or price agreed on, any two or more justices of the peace, within tlieir respective jurisdictions, are authorized and required, upon complaint made for that purpose, to summon before them the party or parties offending, and for non-payment of such wages, or price agreed on, in money as aforesaid, or suf- ficient satisfaction given for the same, to the good liking of the party or parties aggrieved, to issue their warrant or warrants under their hands and seals, for levying such wages or price due as afore- said by distress and sale of the offender's goods and chattels, ren- dering the overplus to the owner ; and for want of sufficient distress, to commit the party or parties offending to the common gaol of the county, city, town or place where such offence shall be committed, there to remain without bail or mainprize for the space of six months, or until he, she or they shall pay such wages or price agT£ed on, in money as aforesaid, or give full satisfaction for the payment of the same, to the good liking of the party grieved : And it is by the said last mentioned act also further enacted, that if any clothier, serge maker, woollen or worsted stuff maker, or person concerned in making any woollen cloths, serges or stuffs, or any way concerned in employing wooll combers, weavers or other labourers in the woollen manufactory, shall pay any jierson or persons em- ployed by them their wages, or other price agreed on, or any part thereof, either in goods, or by way of truck, or in any other manner than in money, every person so offending shall also forfeit and pay the sum of ten pounds, one moiety thereof to the informer, and the other moiety to the party or parties aggrieved, to be levied by dis- tress and sale of the offender's goods as aforesaid, rendering the overplus (if any be) to the owner: And it is by the said last men- tioned act also provided, that it shall be lawful for any person aggrieved by any order or orders to be made by any two or more justices of the peace as aforesaid, to appeal to the justices of the peace at the next general quarter sessions to be holden for the county, city, division, parish or place where such order siiall be 392 APPENDIX. The pro- visions and regulations in the clauses of the recited act to ex- tend to per- sons em- ployed in the manu- factures herein enu- merated. made, giviiiof reasonable notice of such appeal, the reasonableness of which notice shall be determined by the justices at the quarter sessions to which such appeal is made ; and if it shall anpear to them that reasonable time of notice was not j^iven, then they shall adjourn the said appeal to the next ([uarter sessions, and then and there finally hoar and determine the same ; and the justices who in the general quarter sessions shall hear the matter shall have power to award reasonable costs to either party, as to them shall seem just : And it is by the said last mentioned act also further enacted, that if any person or persons shall assault or abuse any master wooll comber, master weaver, or other person concerned in any of tlie woollen manufactures, whereby any such master or otlier person shall receive any bodily hurt for not com])lying with, or not con- forming or not submitting to any such illegal by-laws, ordinances, rules or orders aforesaid ; or if any person or persons shall write or cause to be written, or knowingly send or cause to be sent, any letter or other writing or message, threatening any hurt or harm to any such master wooll comber or master weaver, or other person concerned in the woollen manufacture, or threatening to burn, pull down, or destroy any of their houses or out-housefe, or to cut down or destroy any of their trees, or to maim or kill any of their cattle, for not com- plying with any demands, claims or pretences of any of his or their workmen, or others employed by them in the said manufacture, or for not conforming or not submitting to any such illegal by-laws, ordinances, rules or orders as aforesaid, every person so knowingly and willingly offending in the premisses, being thereof lawfully convicted, upon any indictment to be found within twelve calendar months next after any such offence committed, shall be adjudged guilty of felony, and shall be transported for seven years to some or one of his Majesty's colonies or plantations in America, by such ways and means, and in such manner, and under such pains and penalties as felons in other cases are by law to be transported : And whereas it is necessary that the said several provisions and regulations in the said last in part recited act should be extended to journeymen dyers, journeymen hot pressers, and all other persons employed in the woollen manufactures of this kingdom, and also to journeymen, servants, workmen and labourers employed in the making of felts or hats, and in the manufactures of silk, mohair, furr, hemp, flax, liiinen, cotton, fustian, iron, and leather, or any manufactures made up of wooll, furr, hemp, flax, cotton, mohair or silk, or of any of the said materials mixed one with anotlier ; be it therefore enacted by the authority aforesaid, that the said several before recited clauses in the said act made in the twelfth year of his said late Majesty's reign, and all the provisions, regulations, pains, penalties and forfeitures therein contained, shall, from ami after the said twenty-fourth day of June, one thousand seven hundred and forty-nine, extend, and be construed, deemed, and adjudged to ex- tend to journeymen dyers, journeymen hot pressers, and all other persons whatsoever employed in or about any of the woollen manu- factures of this kingdom, and also to journeymen, servants, work- men and labourers, and all other persons whatsoever employed in the making of felts or hats, or in or about any of the manufactures of silk, mohair, furr, hemp, flax, linnen, cotton, fustian, iron or leather, or in or about any manufactures made up of wooll, furr, hemp, flax, cotton, mohair or silk, or of any of the said materials mixed one with another, in as full and ample manner as the said provisions, regulations, pains, penalties and forfeitures, are by the said last mentioned act declared to extend to the several and re- 17 GEO. 3. c. 56. 393 spective persons therein named ; and the pains, penalties and for- Penalties feitures which shall be incurred by reason of any offence committed ^^'^ forfei- against the said last mentioned act, by any person or persons em- inflicted and p/oyed or concerned in or about any of the said manufactures herein- levied as in before enumerated, shall be inflicted, levied and recovered in the tl^e said act same manner as the pains, penalties and forfeitures contained in the '* directed, said last in part recited act are directed to be inflicted, levied and reco- vered upon and against the several and respective persons therein mentioned (c). 17 Geo. 3, c. 56. An Act for amending and rendering more effectual the several Lawn ■now in being, for the more effectual preventing of Frauds and Abuses by Persons employed in the Manufacture of Hats, and in the Woollen, Linen, Fustian, Cotton, Iron, Leatlter, Fur, Hemp, Flax, Mohair, and Silk(rf) Manufactures ; and also for making Provisions to pre- vent Frauds by Journeymen Dyers. Whereas by an act made in the twenty -second year of the reign Recital of of his late Majesty King George the Second (intituled " An Act for 22 Geo. 2, the more effectual preventing of Frauds and Abuses committed by '^' > *• • Persons employed in the Manufacture of Hats, and in the Woollen, Linen, Fustian, Cotton, Iron, Leather, Fur, Hemp, Flax, Mohair, and Silk Manufactures ; and for preventing unlawful Combinations of Journeymen Dyers and Journeymen Hotpressers, and of all Per- sons employed in the said several Manufactures, and for the better Payment of their Wages"), it was enacted, that if any person or . persons whatsoever, who should be hired or employed to make any felt or hat, or to prepare or work up any woollen, linen, fustian, cotton, iron, leather, fur, hemp, flax, mohair or silk manufactures, or any manufactures made up of wool, fur, hemp, flax, cotton, mohair or silk, or of any of the said materials mixed one with another, should, from and after the twenty-fourth day of June one thousand seven hundred and forty-nine, purloin, embezzle, secrete, sell, pawn, exchange or otherwise unlawfully dispose of any of the materials with which he, she or they should be respectively in- trusted, whether the same or any part thereof be or be not first wrought, made up, manufactured or converted into merchantable wares, and should be thereof lawfully convicted in manner therein mentioned, before any one or more justice or justices of the peace of the county, riding, division, city, liberty, town or place where such offence should be committed, or wliere the person or persons so charged should reside or inhabit, it should and might be lawful to ^nd for the said justice or justices, by warrant under his or their (c) So much of this section as 2 Will. 4, c. 36. See 1 & 2 Will, relates to combinations of work- 4, c. 37, post, as to wages, men, &c., is repealed, 6 Geo. 4, {d) Repealed as to woollen, c. 129 (an ^'<^» other public prison, there to be kept to hard labour for any time not more than six months nor less than three months, as the said justices shall, in their discretion, think fit, unless such penalty shall be sooner paid, or the said justices may send the person convicted to the house of correction or other public prison, there to remain for three days, exclusive of the day of commitment, with an order that vpithin the said time such person shall be once publicly whipped at such market place or other public place as aforesaid. 5. And whereas many frauds are practised in respect to such ma- Persons terials as aforesaid, by persons who sell them knowing them to have sellin;?, been purloined or embezzled ; be it therefore further enacted, that ?f.""'"^',upv, after the said first day of July, one thousand seven hundred and materials as seventy-seven, if any person shall sell, pawn, pledge, exchange or aforesaid, otherwise unlawfully dispose of, or offer to sell, pawn, pledge, ex- knowing change or otherwise unlawfully dispose of, any such materials as ^^^^ ^^^^^ aforesaid, whether wrought or unwrought, mixed or unmixed, know- embezzled, ing them to have been purloined or embezzled, every such person shall be liable lawfully convicted shall be liable to the same punishment as he or 1° i'-' V^™^* , ■',,,,.,, , . p , • '■ , ■ • . , .punishment she would be liable to by virtue ot this act on being convicted ot as for re- receiving purloined or embezzled materials knowing them to have ceiving been purloined or embezzled. embezzled 6. And whereas such materials as aforesaid which have been pur- loined or embezzled are frequently received by persons knowing the ^^"^^0 ■e^d'^^^ same to have been so purloined or embezzled, and such materials ;„ relation being afterwards worked up or otherwise disposed of renders it diffi- to persons cult to convict such offenders ; be it therefore enacted by the autho- charged on rity aforesaid, that from and after the said first day of July, one i^ei,)„^g"s. thousand seven hundred and seventy-seven, when any person or pected of persons shall be brought or charged upon oath before any two or having em- more justices of the peace, by virtue of this act, with being suspected n^^^Jrlap"'^'^ of or with having purloined or embezzled or with having received of having' any such materials as aforesaid, whether the same be wrought or received the unwrought, mixed or unmixed, knowing the same to have been either ?"'"e know- purloined or embezzled or received from some person or persons j^^^.g ^^^^ not entitled to dispose thereof, and it shall be made appear upon the embezzled, oath or (being of the people called Quakers) upon the affirmation of &c. one or more credible witness or witnesses, to the satisfaction of such justices, that such person or persons hath or have purloined or em- bezzled or hath or have received any such materials as aforesaid, knowing the same to have been purloined or embezzled or received from some person or persons not entitled to dispose thereof, it shall and may be lawful for such justices, or for the justices at their general or general quarter sessions of the peace, and they are hereby respectively authorized and empowered (if they shall think tit) to convict such ))erson or persons of having purloined or embezzled or of having received such materials as aforesaid, knowing the same to 398 APPENDIX. 22 Geo. 2, c. 27, s. 7, recited and altered. 22 Geo. 2, c. 27, s. 9, recited and repealed. have been purloined or embezzled or received from some person or persons not entitled to dispose thereof, although no proof shall be given to wliom such materials belong ; and the person or persons so convicted sliall for every such offence be subject to such and the like penalties and punishments, at the discretion of such justices respec- tively, as persons convicted of buying or receiving any such materials as aforesaid, knowing the same to have been purloined or embezzled, are by this act subject and liable to (c). 7. And whereas by the said recited act of the twenty-second of King George the Second it was also enacted, that if any person or persons intrusted with any of the materials therein and hereinl)efore mentioned, in order to prepare, work up or manufacture the same, should not use all such materials in the preparing, working up or ma- nufacturing of tlie same, and should neglect or delay, for the space of twenty-one days after such materials should be prepared, worked up or manufactured, to return (if required by the owner or owners of such materials so to do) so much of the said materials as should not be used as aforesaid, to the person or persons intrusting him, her or them there- with, such neglect or delay should be deemed a purloining or embez- zling of such materials ; and the person or persons so neglecting or delaying, being thereof convicted in manner thereinbefore prescribed for the conviction of offenders against the said act should suffer the like punishment as persons convicted of purloining or embezzling any of the materials thereinbefore mentioned are by the said act rendered subject and liable to : And whereas the space of twenty- one days allowed by the said recited act is thought too long a time to be allowed for returning the said materials, under the circum- stances, and in manner aforesaid, and it may be proper to make the punishment for not returning such materials the same as for purloin- ing or embezzling, under this act ; be it therefore further enacted, that from and after the said first day of July one thousanif seven hundred and seventy-seven so much of the said recited act as allows twenty- one days after the preparing, working up or manufacturing the said materials, for returning so much of the said materials as shall not be used in such preparing, working up or manufacturing, and declares that the punishment for not so returning the said materials within the said time shall be the same as xmder the said act is directed for purloining or embezzling, shall be repealed, and only eight days shall be allowed for returning the said materials in manner aforesaid, and the punishment for not returning them within the said eight days shall be the same as is by this act directed to be inflicted for purloining or embezzling. 8. And whereas by the said act of the twenty-second year of the reign of his late Majesty King George the Second it is enacted, that, from and after the said twenty-fourth day of June one thousand seven hundred and forty-nine, if any person who should be hired, retained or employed to prepare or work up any of the manufactures thereinbefore mentioned, for any one master, should neglect or refuse the performance thereof, by procuring or permitting himself or her- self to be subsequently retained or employed by any other master or person whatsoever, before he or she should have completed the work which he or she was first and originally so hired, retained, or em- ployed to perform, and which was first delivered to him or her, then (e) A conviction under this act for embezzling materials, al- though confirmed on appeal, can- not be removed by certiorari, that writ being taken away by sect. 22. See R. v. Cook, I'DowI., N. S. 300. 17 GEO. 3, c. 56. 399 and in every such case the person so offending, being thereof law- fully convicted by the oath or (being of the people called Quakers) affirmation of one or more credible witness or witnesses, before one or morejustice orjusticesof the peace of the county, riding, division, city, liberty, town or place where the offence or offences should be com- mitted, should be sent to the house of correction, there to be kept to hard labour for any time not exceeding one month : And whereas the said provision contained in the said recited clause is not found suf- ficient for the purpose intended, and it is apprehended that some other provision more proper may be made ; be it therefore further enacted, that from and after the said first day of July one thousand seven hundred and seventy-seven the whole of the said last recited clause shall be repealed ; and that from and after the said first day of July Any person one thousand seven hundred and seventy-seven, if any person being being em- hired, retained or employed to prepare or work up any materials, ^^ ifT,l° whether mixed or unmixed, for any master or masters, shall wilfully materials neglect or refuse the performance thereof for eight days successively, who shall or having taken in any materials, whether mixed or unmixed, for neg''?ct to manufacture, from one master, or two or more masters being co- game'^for partners, shall afterwards take in any materials, whether mixed or eight days, unmixed, for manufacture, from any other master or masters, or shall &'c., shall be procure or permit himself or herself to be employed or retained in ?^"' IVf any other occupation or employment whatsoever sooner than eight correction, days before the completion of the work first taken, then and in every such case such person, being thereof lawfully convicted by the oath or (being of the people called Quakers) affirmation of one or more credible witness or witnesses, before two or more justices of the peace of the county, riding, division, city, liberty, town or place where the offence or offences shall be committed, shall be sent to the house of correction or other public prison, there to be kept to hard labour for any time not exceeding three months nor less than one month. 9. And whereas it frequently happens that persons receive the Ifanyper- said materials in fictitious names, in order to be manufactured, and s"" ?ball that persons receive such materials in their own names, in order to !,!^f'!f,f"Z 1 /> 111 i(* 111* 1 iiicticridJa lo be manufactured by themselves, and afterwards deliver the same to bemanu- others to be manufactured, without the knowledge or consent of the factured in owners thereof, and that carriers, or other persons employed to deliver ^ fictitious materials to workmen to be prepared or manufactured, do designedly 3^,^11 '^g. deliver such materials to other persons than those intended by the liver the owners of such materials; be it therefore further enacted by the same to any authority aforesaid, that from and after the said first day of July, "viJ^m^t'ihe" one thousand seven hundred and seventy-seven, if any person shall consent of receive any of the aforesaid materials in a fictitious name, in order the owner, to be manufactured, or if any person shall receive in his or her own f^'^' ^,^, *^*'' „ , .', -, ■ , , r 1 i_ I • be liable to name any of the said materials, in order to be manufactured by hiiu- ti,e same self or herself, and afterwards deliver the same, or any part thereof, punishment to any other person, to be manufactured (without the consent of the as persons owner thereof), or if any carrier, or other person employed to deliver "„ perfonn any such materials to any workman, to be prepared or wrought up, their work, shall designedly deliver the same to any other person than the person &c. to whom such materials were ordered or intended to be delivered by the owner thereof, all and every person and persons offending in any of the cases aforesaid shall for every such offence be liable to prosecution, in the same manner and to the same punishment as is l)y this act directed in respect to persons taking in any of the said materials, in order to work up, and afterwards wilfully neglecting or refusing the perfornujnce of their work for the space of time aforesaid. 10. And whereas it frequently happens that materials used in the Justices, on 400 APPENDIX. receivinp; manufactures before mentioned are found or known to be concealed complaint jn the possession of persons who have received the same, knowing embezzled^ them to be purloined or embezzled, or of persons known not to materials are be entitled to dispose of the same: And whereas the discovery suspected to and conviction of the purloinersand embezzlers, buyers and receivers be conceal- ^f f^^^(.\■^ materials, is full of difficulty, from the close and clandestine liouse, sfc. manner in which the offence is committed, and there is still ->- '" /• , ^ ., i i i i .■ ^ • j ber of per ployed, shall be subject to the several rules and regulations contained 42 GEO. 3, c. 73. 409 in this act ; and the master or mistress of every such mill or factory sons subject is hereby strictly enjoined and required to pay due attention to and jations'of'this act in strict conformity to the said rules and regulations. act, 2. And be it enacted, that all and every the rooms and apartments xhe rooms in or belonging to any such mill or factory shall twice at least in shall be every year, be 'well and sufficiently washed with quick lime and washed with water over every part of the walls and ceiling thereof (i); and that ''"j'^^'j"!* due care and attention shall be paid by the master or mistress of twice a year, such mills or factories, to provide a sufficient number of windows and care shall and openings in such rooms or apartments, to insure a proper supply ^^ taken to of fresh air in and through the same. ^jj_ 3. And be it further enacted, that every such master or mistress rpntices shall constantly supply every apprentice, during the term of his or ^1,311 t,e sup- her appreiiticeiship, with two whole and complete suits of cloathing, plied with with suitable linen, stockings, hats and shoes ; one new complete '"? complete suit being delivered to such apprentice once at least in every year, cioathing 4. And be it further enacted, that no apprentice that now is or ssc. hereafter shall be bound to any such master or mistress, shall be jime of employed or compelled to work for more than twelve hours in working not any one day (reckoning from six of the clock in the morning to to exceed nine of the clock at night), exclusive of the time that may be occu- ^^'''^ ^® '"^'°' pied by such apprentice in eating the necessary meals: provided From June always, that, from and after the first day of June one thousand eight 1- 1S03, no hundred and three, no apprentice shall be employed or compelled ^^ be^ct.mt^ to work upon any occasion whatever, between the hours of nine of psHed to the clock at night and six of the clock in the morning («). work be- 5. And be it further enacted, that in any mill or factory, wherein *t n^'lu and not less than one thousand nor more than fifteen hundred spindles si^ in the are constantly used in the carrying on of the manufacture, it shall morning. and may be lawful for the owner or owners of such mill to employ In mills or his apprentices in the night until the twenty-fifth day of December ^^^3°";^ a one thousand eight hundred and three ; and in any mill or factory certain wherein more than fifteen hundred spindles shall be employed, it number of shall and may be lawful for the owner of such mill to employ his y^gj^'apf''® apprentices in the night until the twenty-fifth day of June one thou- prentices sand eight hundred and four ; anything herein contained to the con- may be em- trary notwithstanding. U '^ni^'h" 6. And be it further enacted, that every such apprentice shall be tin certain instructed, in some part of every working day, for the first four periods, years at least of his or her apprenticeship, which shall next ensue, Apprentices from and alter the second day of December one thousand eight hun- to be in- dred and two, if he or she is an apprentice on the said second day structed of December one thousand eight hundred and two, and for the first ^^^jay for' four years at least of his or her apprenticeship, if his or her ap- the first four prenticeship commences at any time after the said second day of years of his December one thousand eight hundred and two, in the usual hours ".''F';"'!.^^^ ,. ,. .. 1', ■! •! ri MUp III icau- of work, in reading, writing and arUhmetick, or either ot tnein, ac- [„^^ writing, cording to the age and abilities of such ap])rentice, by some discreet and arith- and proper person, to be provided and paid by the master or mis- metick, &c. tress of such ajiprentice, in some room or place in such mill or fac- tory to be set apart for that purpose : and that the time hereby directed to be allotted for such instruction as aforesaid, shall be (0 See further, 3 & 4 Will 4, & 8 Vict. c. 15 ; 8 & 9 Vict. c. c. 103, s. 26; 7 & 8 Vict. c. 15, 29; 10 & 11 Vict. c. 29, post; ss. 1 8 & 58, post. Ruder v. Mills, 3 l^'-xc. 853 ; 1 3 & (w) As to time of working, see 14 Vict. c. 51'; I(i & 17 Vict. c. further 3 & 4 Will. 4, c. 103 ; 7 104, post. T 410 AITKNDIX. female ap prentices to i)e kept dis- tinct, and two only shall sleep in one btd. KeRulations to be ob- served for tbe instruc- tion of ap- prentices on Sundays. deemed and taken on all occasions as part of the respective periods limited by this act during which any sucli apprentice shall be em- ployed or compelled to work. Apartments 7. And be it further enacted, that the room or apartment in of male and which any male api)rentice shall sleep, shall be entirely separate and distinct from the room or aj)artnient in which any female ap- prentice shall sleep ; and that not more than two apprentices shall in any case sleep in the same bed. 8. And be it further enacted, that every apprentice, or (in case the apprentices shall attend in classes), every such class shall, for the space of one hour at least every Sunday, be instructed anil ex- amined in the ])rinciples of the Christian religion, by some proper person, to be provided and paid by the master or mistress of such apprentice ; and in England and Wales, in case the parents of such apprentice shall be members of the Church of England, then such apprentice shall be taken, once at least in every year during the term of his or her apprenticeship, to be examined by the rector, vicar, or curate of the parish in which such mill or factory shall be situate ; and shall also, after such apjirentice shall have attained the age of fourteen years and before attaining the age of eigliteen years, be duly instructed and prepared for confirmation, and be brought or sent to the bishop of the diocese to be confirmed, in case any con- firmation shall, during such period, take place in or for tlie said parish ; and in Scotland, where tlic parents of such apprentice shall be members of the Established Ciiuich, such apj)rentice shall be taken, once at least in every year, during tlie term of his or her apprenticeship, to be examined by the minister of the parish ; and shall, after such apprentice shall have attained the age of fourteen years, and before attaining the age of eighteen years, be carried to the parish church to receive the sacrament of the Loril's Supper, as the same is administered in churches in Scotland ; and sucli master or mistress shall send all his or her apprentices under the care of some proper person, once in a month at least, to attend during Divine service in the church of the parish or place in which the mill or factory shall be situated, or in some other conver.ient church or chapel where service shall be performed according to the rites of the Church of England, or according to the established religion in Scotland, as the case may be, or in some licensed place of Divine worship ; and in case the apprentices of any such master or mistress cannot conveniently attend such church or chapel every Sunday, the master or mistress, either by themselves or some proper person, shall cause Divine service to be performed in some convenient room or place in or adjoining to the mill or factory, once at least every Sunday that such apprentices shall not be able to attend Divine service at such church or chapel ; and such master or mis- tress is hereby strictly enjoined and required to take due care that all his or her apprentices regularly attend Divine service, according to the directions of this act. 9. And be it further enacted, that the justices of the peace for every county, stewartry, riding, division or place, in which any such mill or factory sIihH be situated, shall, at the Midsummer sessions of yearly shall the peace to be holden immediately after the passing of this act for appoint two gych county, stewartry, riding, division or place, and afterwards sudi'mil'lsor V^'^^'h ^^ ^^^'^^^' '"mual Midsummer sessions of the peace, appoint fai-tories, two persons, not interested in, or in any way connected with, any who shall such mills or factories, to be visitors of such mills or factories in report the such county, stewartry, riding, division or place ; one of whom shall condition , . . •' ' ^ ■' p '^, ^ ^ ' ... i- • • thereof to ^^ ^ justice of peace for such county, stewartry, nding, division or Justices at their Mid- summer sessions 42 GEO. 3, c. 73. 411 place, and the other shall be a clergyman of the Established Church the quarter of England or Scotland, as the case may be; and in case it shall be sessions, i-c. found inconvenient to appoint one such justice and one such clergy- man as aforesaid, it shall be lawful to and for such justices, and they are hereby required to appoint two such justices, or two such clergy- men ; and tlie said visitors, or either of them, shall have full power and authority, from time to time throughout the year, to enter into and inspect any such mill or factory at any time of the day, or during the hours of employment, as they shall think fit ; and such visitors shall report from time to time in writing to the quarter sessions of the peace the state and condition of such mills and factories, and of the apprentices therein, and whether the same are or are not conducted and regulated according to the directions of this act and the laws of the realm ; and such report shall be entered by the clerk of the peace among the records of the session in a book kept for that purpose: provided always, that in case there shall be six or more such mills or factories within any one such county, riding, division or place, then it shall be lawful for such justices to divide such county, riding, division or ])lace, into two or more dis- tricts or parts, and to appoint two such visitors as aforesaid for each of such districts or parts (v). 10. And be it further enacted, that in case the said visitors or In ease of either of them shall find that any infectious disorder appears to pre- infectious vail in any mill or factory as aforesaid, it shall be lawful for them or prevaifing^ either of them to require the master or mistress of any such mill or the visitors factory to call in forthwith some physician, or other competent may require medical person, for the purpose of ascertaining the nature and pro- 'o'calTin" bable effects of such disorder, and for applying such remedies and medical recommending such regulations as the said physician, or other com- assistance, petent medical person shall think most proper for preventing the ^'^• spreading of the infection and for restoring the health of the sick ; and that such physician, or other coir:petent medical person, shall report to such visitors, or either of them, as often as they shall be required so to do, their opinion in writing of the nature, progress, and present state of the disorder, together with its probable effects ; and that any expenses incurred in consequence of the provisions aforesaid for medical assistance, shall be discharged by the master or mistress of such mill or factory. 11. And be it further enacted, that if any person or persons shall Penalty for oppose or molest any of the said visitors in the execution of the "^^''^g^f '"^ powers intrusted to them by this act, every such person or persons shall for every such offence forfeit and pay any sum not exceeding ten pounds, nor less than five pounds (iv). 12. And be it further enacted, that the master or mistress of every Copies of such mill or factory shall cause printed or written copies of this act [j'"^^''^"({' to be hungup and affixed in two or more conspicuous places in such j,, t^o con- mill or factory, and shall cause the same to be constantly kept and spicuous renewed, so that they may at all times be legible and accessible to places of ,, ' 1 , , • / \ such mills all persons employed therein (x). ^^ factories. 13. And be it further enacted, that pvery master or mistress o'" p(,„aity on any such mill or factory who shall wilfully act contrary to or offend j^^^^^^^ against any of the provisions of this act, shall for such offence (except otfending (d) See further, 3 & 4 Will. 4, post. c. 103, s. 17, post, p. 431. (x) See also 3 & 4 Will. 4, c. (w) See also 3 & 4 Will. 4, c. 103, s. 27 ; 7 «fc 8 Vict. c. 15, s. 103, s. 32 ; 7 & 8 Vict. c. 15, s. 28 ; 8 & 9 Vict. c. 29, s. 29, post. 61 ; 8 & 9 Vict. c. 29, ss. 41, 42, t2 413 APPENDIX. asainst this act. Mills or factories employing a certain number of persons to lie entered in a book kept by the clerk of the peace. Penalties and for- feitures, how to be recovered. F'^rm of con- liction [y). where otherwise directed) forfeit and pay any sum not exceeding five pounds nor less than forty sliillinn-s, at the discretion of the justices before whom such offender shall be convicted as after men- tioned ; one-half whereof sliall be paid to the informer, and the other half to the overseers of the poor in England and Ireland, and to the minister and elders in Scotland, of the parish or place where such offence shall be committed, to be by them applied in aid of the poor rate in England and Ireland, and for the benefit of the poor in Scotland, of such parish or place : provided always, that all informations for otfences against this act shall be laid within one calendar month after the offence committed, and not afterwards. 14. And be it further eriacted, that every such master or mistress shall, at the Epiphany sessions in every year, make or cause to be made an entry ni a book to be kept for that purpose by the clerk of the peace of the county, riding or division in which any mill or factory shall be situate, of every such mill or factory occupied by him or her wherein three or more apprentices, or twenty or more other persons shall be employed ; and the said clerk of the peace shall receive for every such entry the sum of two shillings and no more, 15. And be it further enacted, that all offences for which any penalty is imposed under this act, shall and may be heard before any two or more justices of the peace, acting in or for the place where the offence shall be committed ; and all penalties and forfeit- ures by tliis act imposed, and all costs and charges attending the conviction of any such offendt r or offenders, shall and may be levied by distress and sale of the offender's goods and chattels, by warrant under the hand and seal of any two or more justices of the peace acting for the county, stewartry, riding, division or place where such offence shall be committed, rendering the overplus (if any) to the party or parties offending ; and which warrant such justices are hereby empowered and required to grant, upon conviction of the offender, either by confession, or upon the oath of one or more credible witness or witnesses (which oath such justices are hereby empow- ered to administer) ; and in case such distress cannot be found, and such penalties, forfeitures and costs shall not be forthwith paid, it shall and may be lawful for sucli justices, and they are hereby em- powered and required, by warrant under their hands and seals, to commit such offender or offenders to the common gaol or house of correction of the county, stewartry, riding, division or place where the offence shall be committed, for any time not exceeding two ca- lendar months, unless the said penalty, forfeiture and costs shall respectively be sooner paid and satisfied : provided always, that no warrant of distress shall be issued for levying any such penalty, for- feiture or costs, until six days after the oHenrler shall have been convicted, and an order made upon him or her for payment thereof; and no such conviction shall be removable by certiorari or bill of advocation into any court whatsoever. 1(). And be it further enacted, that every such conviction before such justices may be made in the following form ; to wit, County of "I BE it remembered, that on the day to wit. / of in the year A. B. was, upon the complaint of C. D., convicted before of the jus- tices of the peace for the said county of [or, for of or in the said county of as the case shall happen to ie], in {ij) See 11 & 12 Vict. c. 43. SCHEDULE TO 5 GEO. 4, C. 96. 413 'pursuance of an act, passed in the forty-second year of the reign < of his Majesty King George the Third, for [or, as the case may be], ' Given under our hands and seals, the day and year above ' written.' Which conviction shall be certified to the next general quarter sessions, there to be filed amongst the records of the county, riding or division. 17. And be it enacted, that this act shall be deemed and taken to Publick act. be a publick act, and shall be judicially taken notice of as such, by all judges, justices and others, without specially pleading the same. Schedule to 5 Geo. 4, c. 96. Form of the Award to be written at the Foot or upon the Back of the Order of the Justices of Peace certifying the Reference. We, I. K. and L. M. [name and describe the referees'], the referees appointed to settle the matters in dispute between the parties within named [or, I. K., one of the referees so appointed ; or, L. M., the other referee appointed, having failed to attend; or, I, N. O., the justice, as the case may be] ; do hereby adjudge and determine that [here set forth the determination ; to which the referee or referees or justice, as the case may be, shall subscribe their names]. Form of Endorsement, extending the Time limited for making the Award. We, A. B. and C. D., parties to the within reference, do hereby agree to extend the same to the day of inclusive. Witness our hands this day of w. A. B. W itness p |-j Form of Acknowledgment of Fulfilment of the Award, to be written at the Foot or on the Back thereof I, A. B., do hereby acknowledge that the above award hath been fulfilled by C. D., who is hereby discharged of the same. Witness my hand this day of W^itiiess A. B. Form of the Oath to be administered by the Arbitrators or Justice to the Parties and Witnesses under this Act. The evidence that you shall give before us, the arbitrators ap- pointed by A. B. and C. D. [the parties] to determine the matters in difference between them under and by virtue of an act passed in the fifth year of the reign of King George the Fourth, intituled, " An Act to consolidate and amend the Laws relative to the Arbitration of Disputes between Masters and Workmen," shall be the truth, the whole truth, and nothing but the truth. So help you God. Form of Commitment of a Person summoned as a Witness before the Arbitrators. Whereas proof on oath hath been made before me, one of his Majesty's justices of the peace for the county [or riding, stewartry, 414 APPENDIX. division, city, burgh, liberty, town or place] of on this day of that A. B. hath been duly summoned and hath neglected to appear and give evidence before C. D. and E. F., the arbitrators apj)ointed by and between G. H. and I. K. to deter- mine the matters in dis])ute between them, at in the county \_or riding, stewartry, division, city, burgh, liberty, town or place] of on the day of under and by virtue of an act made in the fifth year of the reign of liis present Majesty, inti- tuled " An Act" \_here set forth the title of this act{z)'] and the said A. B. being required by me, the said justice, to give evidence before the Slid arbitrators, and still refusing so to do, therefore I, the said justice, do hereby, in pursuance of the said act, commit the said A. B. to the \^descrihin!t the prison and the house of correction], there to remain, without bail or mainprize, for his [or her] oftence afore- said, until he [or she] shall submit himself [or herself] to be exa- mined and give his [or her] evidence before the said arbitrators touching the matters referred to them as aforesaid, or shall otherwise be discharged by due course of law : And you, the [constable or other peace officer or officers to whom the warrant is directed], are hereby authorized and required to take into your custody the body of the said A. B., and him [or her] safely to convey to the said prison [or house of correction], and him [or her] there to deliver to the gaoler [or keeper] thereof, who is hereby authorized and required to re- ceive into his custody the body of the said A. B., and him [or her] safely to detain and keep pursuant to this commitment. Given under my hand this day of in the year of our Lord [This commitment to be directed to the proper peace officer and the gaoler [or keeper] of the prison [or house of correc- tion]. Form of Warrant of Distress. To the constable of Whereas of under an award made by on the day of in the year of our Lord pursuant to an act passed in the fifth year of the reign of his present Majesty, intituled " An Act" [state the title of this act (a)] is liable to pay to of the sum of and also the sum of and the said having refused or neglected to pay the same for the space of two days and upwards subsequent to the making such award, these are therefore to command you to levy the said su;ii of by distress and sale of the goods and chattels of the said and I do hereby order and direct the goods and chattels so to be distrained to be sold and disposed of witliin days, un- less the said sum of for which such distress shall be made, together with the reasonable charges of taking and keeping such distress, shall be sooner paid : and you are also hereby commanded to certify to me what you sliall do by virtue of this my warrant. Given under my hand and seal at the day of Form of the Constahle' s Return to the Warrant of Distress. I constable of do hereby certify to jus- tice of the peace of that I have made diligent search for, but do not know of, nor can find any goods and chattels of by distress and sale whereof I may levy the sum of pursuant to {z} See last form, ««/)ra. (a) See form, «?(/)ra. SCHEDULE TO 5 GEO, 4, C. 96. 415 his warrant for that purpose. Dated the day of in the year of our Lord . Given under my hand this day of in the year of our Lord Form of Commitment thereupon to the House of Correction. Here name { To the constable of and also to the keeper of the county. S the house of correction at Whereas of under an award made by on the day of in the year of our Lord pur- suant to an act passed in the fifth year of the reign of his present Majesty, intituled "An Act" {state the title of this act (i)] became liable to pay to the sum of and also the sum of for costs, time and expenses, making together the sum of and having refused or neglected to pay the same for the space of two days and upwards subsequent to the making of such award, my warrant was according to the provisions of the said act duly made and issued for the levying the said sum of by dis- tress and sale of the goods and chattels of the said : and whereas it appears by the return of constable of dated the day of that he hath made diligent search for, but doth not know of, nor can find any goods and chattels of the said by distress and sale whereof the said sum of may be levied pursuant to my said warrant : These are therefore to command you the said constable of to apprehend the said and convey him to the said house of correction at aforesaid and deliver him there to the keeper of the said house of correction ; and these are also to command you the keeper of the said house of correction to receive him the said into the said house of correction, and there keep him without bail or main- prize for the space of months, unless the said sum of so ordered to be paid as aforesaid, shall be sooner satisfied, with all reasonable expenses. Given under my hand and seal at the day of Form, of Commitment where the Warrant of Distress is withheld. Herename\ To the constable of and also to the keeper of the county, f the house of correction at Whereas of under an award made by on the day of in the year of our Lord pursuant to an act passed in the fifth year of the reign of his present Majesty, intituled "An Act" {state the title of this act{h),] became liable to pay to the sum of and also the sum of for costs, time and expens^es, making together the sum of which he has refused or neglected to pay for the space of two days and upwards subsequent to the making of such award ; and whereas it appears to me that the recovery of such sum and warrant of distress, and sale of the goods and chattels of the said will be attended with con- sequences ruinous or in an especial manner injurious to the defaulter [and his family, if anyl, and I have tlierefore determined to with- hold such warrant, and to coinmit the said" to prison pursuant to tlie said act : These are therefore to command you the said constable of to appreliend the said and convey him to the said house of correction at aforesaid, and deliver him there to the keeper of the said house of correction ; and these are also to command (6) See supra. 416 APPENDIX. you the keeper of the said house of correction to receive him the said into the said house of correction, and there keep \nm without bail or maiiiprize for tlie space of months, unless the said sum of so ordered to be paid as aforesaid shall be sooner satisfied with all reasonable expenses. Given under my hand and seal at the day of Schedule to 6 Geo. 4, c. 129. Form of Conviction and Commitment. Be it remembered, that on the day of in the year of his Majesty's reign, and in the year of our Lord A. B. is convicted before us \_na)nini^ the justices^, two of his Majesty's justices of tbe j)eace for the county \_or riding, division, city, liberty, town or place] of of havuig \_stating the offence^ contrary to the act made in the sixth year of the reign of King George the Fourth, intituled " An Act to repeal the Laws relating to the Combination of Workmen, and to make other provisions in lieu thereof," and we the said justices do hereby order and adjudge tlie said A. B. for the said ofi'ence to be committed to and conrined in the common gaol for the said county \_or riding, division, city, liberty, town or place] for the space of or to be committed to the house of correction at within the said county [or riding, division, city, liberty, town or place] there to be kept to hard labour for the space of . Given under our hands the day and year above written. Form of Commitment of a Person summoned as a Witness. Whereas C. D. hath been duly summoned to appear and give evidence before us [naming the justices who issued tlie summons'] two of his Majesty's justices of the peace for the county [or riding, division, city, liberty, town or place] of on this day of at being the time and place appointed for hearing and determining the complaint made by [the informer or prosecutor] before us against A. B., of having [stating the offence as laid in the inforviation] contrary to the act made in the sixth year of the reign of King George the Fourth, intitutled "An Act" [here insert tlie title of this active)]: And whereas the said C. D. hath not appeared before us at the time and place afore- said specified for that purpose or offered any reasonable excuse for his [or her] default [or, and whereas the said C. D. having appeared before us at the time and ])lace aforesaid specified for that purpose, hath not submitted to be examined as a witness and give his [or her] evidence before us touching the matter of the said complaint but hath refused so to do] therefore we the said jus- tices do hereby in jmrsnance of the said statute commit the said C. D. to the [describing the prisott] there to remain without bail or mainprize for his [or her] contempt aforesaid for three calendar months or until he [or she] shall submit himself [or herself] to be examined and give his [or her] evidence before us touching the matter of the said complaint or shall otherwise be discharged by due course of law: And you the [constable or other peace officer or officers \c) See last form. SCHEDULE TO 6 GEO. 4, C. 1-29.— 1 & 2 WILL. 4, C. 37. to whom the warrant is directed^ are hereby authorized and required to take into your custody the body of the said C. D. and him [or her] safely to convey to the said prison and him \_or herj there to deliver to the gaoler or keeper thereof, who is hereby authorized and required to receive into his custody the body of the said C. D., and him [or her] safely to detain and keep pursuant to this commit- ment. Given under our hands this day of ia the year of our Lord [This commitment to be directed to the proper peace officer, and the gaoler or keeper of the prison.] 417 1 & 2 Will. 4, c. 37. ^n Act to prohibit the Paijment, in certain Trades, of Wages in Goods, or otherwise, than in the current Coin of the Realm. [15th October, 1831.] Whereas it is necessary to prohibit the payment, in certain trades, of wages in goods, or otherwise than in the cuirent coin of the realm ; 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 autho- rity of the same, that in all contracts hereafter to be made for the Contracts hiring of any artificer in any of the trades hereinafter enumerated, for the hiring or for the performance by any artificer of any labour in any of the mustbe'^made said trades, the wages of such artificer shall be made payable in the in the current current coin of this realm only, and not otherwise ; and that if in coin of the any such contract the whole or any part of such wages shall be made realm; payable in any manner other than in the current com aforesaid, such contract shall be and is hereby declared illegal, null and void {d). (d) Plaintiff, a framework knitter, worked as a weaver of gloves for defendant in frames provided by defendant at an agreed gross price per dozen pairs. Defendant was a sub-con- tractor, furnishing the work by agreement to a master manu- facturer, who found machi- nery and materials. Defendant settled with plaintiff weekly for the work done, deducting out of the gross price per dozen cer- tain charges which were ac- cording to the known custom of the trade, namely : 1. A frame- rent per week ; 2. A payment per week for use of defendant's premises to work in, standing room for the frame, defendant's trouble and loss of time in pro- curing materials and conveying them to plaintiff, defendant's re- sponsibility to the master manu- facturer under whom he con- tracted for the work, superinten- dence of the work, sorting the goods when made, and delivering them to the master manufacturer; 3. Payment to a boy for winding the yarn, and wear and tear of machinery ; 4. A penny per shil- ling on the net sum earned by plaintiff above fourteen shillings per week as compensation to de- fendant for a pcr-centage paid by him to the master manufacturer on the amount of goods manu- factured by defendant for him with machinery rented of him by defendant. There was no written contract between plaintiff and defendant: held, th;it the agree- ment to pay plaintiff's wages with these deductions was not a contract to pay part of such wages otherwise tlian in the current coin of the realm, within this T 5 418 APPENDIX. and must not contain any stipulations as tu tlie manner in ■which the wages shall be expended. All wages must be paid to tlie work- man in coin. Payment in good.s de- clared illegal. Artificers may recover wages, if not paid in the current coin. In an action brought lor wages no sei-ofF shall be allowed lor goods supplied by the emplojer, or by any shop in whicli the employer is interested. No employer shall have any action against his artificer for goods sup- plied to him on account of wages. 2. And be it further enacted, that if in any contract hereafter to be made between any artificer in any of tlie trades hereinafter enu- merated, and his employer, any provision shall be made directly or indirectly respecting the place where, or the manner in which, or the person or persons with whom, the whole or any part of the wages due or to become due to any such artificer shall be laid out or ex- pended, such contract shall be and is hereby declared illegal, null and void. 3. And be it further enacted, that the entire amount of the wages earned by or payable to any artificer in any of the trades hereinafter enumerated, in respect of any labour by him done in any such trade, shall be actually paid to such artificer in the current coin of this realm, and not otlierwise ; and every payment made to any such artificer by his employer, of or in respect of any such wages, by the delivering 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. 4. And be it further enacted, tliat every artificer in any of the trades hereinafter enumerated shall be entitled to recover from his employer in any such trade, in the manner by law provided for the recovery of servant's wages, or by any other lawful ways and means, the whole or so much of the wages earned by such artificer in such trade as shall not h;ive been actually j)aid to him by such his employer in tlie current coin of this realm (e). 5. And be it further enacted, that in any action, suit or other proceeding to be hereafter brought or commenced by any such arti- ficer as aforesaid, against his employer, for the recovery of any sum of money due to any such artificer as the wages of his labour in any of the trades hereinafter enumerated, the defendant shall not be allowed to make any set-off, nor to claim any reduction of the plaintifi's demand, by reason or in respect of any goods, wares or merchandize had or received by the plaintift" as or on account of his wages or in reward for his labour, or by reason or in respect of any goods, wares or merchandize sold, delivered or supplied to such artificer at any shop or warehouse kept by or belonging to such employer, or in the profits of which such employer shall have any share or interest (/). 6. And be it further enacted, that no employer of any artificer in any of the trades hereinafter enumerated shall have or be entitled to maintain any suit or action in any court of law or equity against any such artificer, for or in respect of any goods, wares or merchandize sold, delivered or supplied to any such artificer by any such em- ployer, whilst in his employment, as or on account of his wages or reward for his labour, or for or in respect of any goods, wares or merchandize sold, delivered or supplied to sucb artificer at any shop or warehouse kept by or belonging to such employer, or in the profits of which such employer shall have any share or interest. section ; nor was contract in writing under sect. 23, necessary to legalize such deductions: held also, that there was not in this case any demise of a " tenement" within sect. 23 ; and qiicBie, whe- ther there was a demise of any- thing at a rent thereon reserved within that section, Chawner v. Cummings, 8 Q. B. 311; ace. Archer v. Jnmes, 1 Law Times Rep., N. S. 26; S. C. 1 Fost. & F. (c) See Weaver v. Floyd, 21 L. J., Q. B. 151. (/) See Riley v. Warden, 2 Exc. 59, 'post, p. 423, note (m). 1 & -2 WILL. 4, c. 37. 419 7. And be it further enacted, that if any such artificer as afore- If thearti- said. or his wife or widow, or if any child of any such artificer, not ''5^'''"'''^* being of the full age of twenty -one years, shall become chargeable dren become to any parish or place, and if within the space of three calendar chargeable to months next before the time when any such charge shall be incurred ^''^ parish such artificer shall have earned or have become entitled to receive 1''!,"^^'^''^®'^^ ,. I , 1 t • I • I' 1 -1 . "'"■J recover any wages tor any labour by him done ni any ot the said trades, any wages which wages shall not have been paid to such artificer in the current earned with- coin of tliis realm, it shall be lawful for the overseers or overseer of'" t'le three the poor in such parish or place to recover from the employer of months "and such artificer in whose service such labour was done the full amount not paid in of wages so unpaid, and to proceed for the recovery thereof by all <^*s'i- such ways and means as such artificer himself might have proceeded for that purpose; 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, and be it further enacted, that nothing herein Not to in- contained shall be construed to prevent or to render invalid any validate the contract for the payment, or any actual payment, to any such artificer w^ees^in as aforesaid, of the whole or any part of his wages, either in the notes bank notes, of the governor and company of the Bank of England, or in the notes if aniticer of any person or persons carrying on the business of a banker, and consents, duly licensed to issue such notes in pursuance of the laws relating to his Majesty's revenue of stamps, or in drafts or orders for the payment of money to the 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 afoiesaid, but all payments so made ■ with such consent as aforesaid, in any such notes, drafts 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. And be it further enacted, that any employer of any artificer in Penalties on any of the trades hereinafter enumerated, who shall, by himself or eriii)loyers . -^ 1 r , T 1 • 1- ^1 entering into by the agency oi any other person or persons, directly or indirectly contracts enter into any contract or make any payment hereby declared illegal, hereby de- shall for the first offence forfeit a sum not exceeding ten pounds nor clared illegal. less than five pounds, and for the second offence any sum not ex- ceeding 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 mi-demeanor, 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 (^). 10. And be it furtlier enacted, that all offences committed against Penalties, this act, and not hereinbefore declared a misdemeanor, shall be en- ''""' '° ^^ quired of and determined, and that all fines and penalties for such offences s:liall be sued for and recovered by any ])erson or persons who shall sue for the same, before any two justices of the peace having jurisdiction within the county, riding, city or place in which (,?) Affidavits in support of a should be intituled " In the rule for a certiorari to remove a Queen's liench" simply, A'jpar/c conviction under this section, yVallwork, 4 D. & L. 403. 420 APPENDIX. the offence shall have been committed (/() ; and that the amount of the fines, penalties and other punishments to be inflicted upon any such offenders shall, within the limits hereinbefore j)rescribed, be in the discretion of such justices, or, in cases of misdemeanor, of the Second court before which the offence maybe tried; and in case of a second offence. offence against this act, it shall be suthcicnt evidence of tlic previous conviction and offence, if a certificate, signed by the clerk of the peace or other officer havin;i; the custody of the record of such previous conviction shall be produced before the said justices en- quiring of such second offence, in which certificate shall be stated in a compendious form the general nature of the offence for which such previous conviction was had, and the date of such previous conviction; and so in like manner, upon the trial of any indictment or information for any such misdemeanor as aforesaid, it shall be sufficient evidence of such second conviction for a like offence if a certificate tliereof, signed by the clerk of the peace or other officer having the custody of the record of such second conviction, in such Proviso. form as aforesaid, be produced to the court and jury : provided always, that no person shall be punished as for a second offence under tliis act unless ten days at the least shall have intervened between • the conviction of such person for the first and the conviction by (e) such person of the second offence, but each separate offence com- mitted by any such person before the expiration of the said term of ten days shall be punishable by a separate penalty, as though the same were a first offence ; and that no person shall be punished as for a third offence under this act, unless ten days at the least shall have intervened between the conviction of such person for the second and the conviction by (i) such person of the third offence ; but each separate offence conmiiited by any such person before the expiration of the said term of ten days shall be punishable by a separate penalty, as though the same were a second offence ; and that the fourth or any subsequent offence which may be committed by any such person against this act shall be enquired of, tried and punished in the manner hereinbefore provided in respect of any third offence ; and that if the person or persons preferring any such information shall not be able or shall not see fit to produce evidence of any such previous conviction or convictions as aforesaid, any such offender as aforesaid shall be punished for each separate ofience by him committed against the provisions of this act by an equal number of distinct and separate penalties, as though each of such offences were a first or a second offence, as the case may be ; and that no person shall be proceeded against or pimished as for a second or as for a third offence at the distance of more than two years from the commission of the next preceding ofience. Justices may H. And be it further enacted, that it shall be lawful for any one auTniiarce of J"^*''^^ of the peace, in all cases where any information or complaint witnesses. shall be made as aforesaid, and he is hereby authorized and required, at the request in writing of any of the parties to the said complaint, and on the oath of the informer or complainant, or of the person informed or complained against, that he believes that the attendance of any person or persons as a witness or witnesses will be material to the hearing of such information, to issue his summons to any such (h) The offence is complete justices, Ashersmith v. Drury, 28 where the note is given, although L. J., M. C. 5; S. C. 32 Law the goods are delivered out of Times Rep. 103. the jurisdiction of the convicting (i) Sic. 1 & 2 WILL. 4, c. 37. 421 person or persons, witness or witnesses, to appear and give evidence on oath btt'ore himself and such other justice or justices as shall hear and determine such information or complaint, the time and place of hearing and determining the same being specified in the said sum- mons J and if any person or persons so summoned shall not appear before the said last mentioned justices at the time or place so speci- fied in the said summons, and shall not ouer any reasonable excuse for tlie default, to the satisfaction of the said last mentioned justices, or appearing according to the directions of the said summons shall not submit to be examined as a witness or witnesses, then and in every such case it shall be lawful for such last mentioned justices, and they are hereby authorized (proof on oath, in the case of any person not appearing according to such summons, having been first made before such last mentioned justices of the due service of such summons on every such person, by delivering the same to him or to her, or by leaving the same at tlie usual place of abode of such person, tweuty-four hours at the least before the time appointed for such person to appear before such last mentioned justices), by war- rant under the hands and seals of such last mentioned justices to commit sucii person or persons so making default in appearing, or appearing and refusing to give evidence, to some prison within the jurisdiction of the said justices, there to renlain without bail or mainprize for any time not exceeding fourteen days, or until such person or persons shall submit to be examined and give evidence. 12. And be it further enacted, that all justices of the peace shall Powerto and are hereby empowered, on the conviction of any person or per- If ^y penal- sons for any otfence against this act, in default of payment of any tJ-ess. '*" penalty or forfeiture, together with the reasonable costs and charges attending such conviction, to cause the same to be levied by distress and sale of the goods and chattels of the offender or offenders, by warraTit or warrants under the hands and seals of such justices, ■ together with the reasonable costs of such distress and sale, and in case it shall appear to the satisfaction of such justices, either by the confession of the offender or offenders or by the oath of one or more credible witness or witnesses, that he, she or they hath not or have not goods and chattels within the jurisdiction of such justices sufficient whereon to levy all such penalties and forfeitures, costs and charges, such justices may, without issuing any warrant of distress, commit the offender or offenders to the common gaol for three calendar months (unless the same be sooner paid) in such manner as if a warrant of distress had been issued, and a return of nulla bona made thereon. 13. And be it further enacted, that no person shall be liable to be A p.orfner convicted of any offence against this act committed by his or her K°y'°-^^ copartner in trade, and without his or her knowledge, privity or son lor the consent ; but it shall be lawful, when any penalty or any sum for offence of wages, or any other sum, is ordered to be paid, under the authority '"'* co-part- of this act, and the person or persons ordered to pay the same shall partnership neglect or refuse to do so, to levy the same by distress and sale of property to any goods belonging to any copartnership concern or business in the be so liable, carrying on of which such charges may have become due or such offence may have been committed : and in all proceedings under this act to recover any sum due for wages it shall be lawful in all cases of copartnership for the justices, at the hearingof any complaint for the nonpayment thereof, to make an order u])on any one or more copartners for the payment of the sum appearing to be due ; and in such case the service of a copy of any summons or other process, or of any order, upon one or more of sucli copartners, shall be deemed to be a sufficient service upon all. 422 APPENDIX. How sum- 14'. And it is declared and enacted, that in all cases it shall be nionses are deemed and taken to be sufficient service of any suninions to be to be served. - , ■ ^ n- i n- i i ■ \- ■ .• c issued against any oiiender or ottenders by any justice or justices ot the peace, under the authority of this act, if a duplicate or true copy of the same be left at or u})on the place used or occupied by such offender or offenders for carryinnf on his, lier or their trade or busi- ness, or at the place of residence of any such offender or offenders, being at or upon any such place as aforesaid, the same being directed to such offender or offenders by his, her or their right or assumed name or names. Form of^on- j^ ^^j (^g \^ further enacted, that the justices before whom any ' " person shall be convicted of any offence against this act, or by whoui any person shall be committed to the common gaol, in default of a sufficient distress, or for not appearing as a witness, or not sub- mitting to be examined, shall cause all such convictions, and the summonses for the attendance of witnesses, and the warrants or orders for such commitments, and the wan-ant or order for any such dis- tress, to be drawn up in the form or to the effect set forth in the schedule to this act annexed, with such additions or variations as may be necessary for adapting the same to the particular circum- stances of the case. Justices to 16. And be it further enacted, that the justices before whom any return con- conviction shall be had under this act shall cause the same to be tne clerk of returned to the next general or quarter sessions of tlie peace holden the peace, for the county or place wherein the offence shall have been com- who is to mitted, and the same shall then and there be delivered to the clerk deliver copies of the peace, or other person acting as such, to be by him tiled among to persons , ' , ,. , •', y , ^ , ,• , , ° applying. ^"e records or the said court; and such clerk oi the peace, or other person acting as such, is hereby required, on the tender and payment to him of the sum of one shilling, to grant to any person or persons, on demand, a copy of any such conviction, with a certiiicate there- upon indorsed or thereunto annexed, that the same is a true and accu- rate copy of the original conviction returned to such general or quarter sessions as aforesaid. Convictions 17. And be it further enacted, that no conviction, order or ad- not to be judication made by any justices of the peace under the provisions wanVofform of this act shall be quashed for want of form, nor be removed by certiorari or otherwise into any of his Majesty's superior courts of record ; and no warrant of distress, or of commitments in default of sufficient distress, shall be held void by reason of any defect therein, provided it be therein alleged that the ))arty has been convicted, and there be a good and valid conviction to sustain the same. Application 18. And be it further enacted, that out of any penalty or forfeiture of penalties, incurred by any offence committed against this act, it shall be lawful for the court or justices imposing the same to award any sum to the informer, not exceeding in any case the sum of twenty pounds ; and the rest of anv such pecuniary penalty or forfeiture shall go to the treasurer of the county in which the otTence shall be committed, in aid of the rates of such county : provided always, that every pro- ceeding whatsoever for any offence against this act shall be com- menced within three calendar months after such offence shall have been committed. Specification 19. And be it further enacted, that nothing herein contained shall of the trades extend to any artificer, workman or labourer, or other person en- to which the gaged or employed in any manufacture, trade or occupation, ex- apply, cepting only artificers, workmen, labourers and other persons em- ployed in the several manufactures, trades and occupations follow- ing; (that is to say), in or about the making, casting, converting or 1 & 2 WILL. 4, c. 37. 4-23 manufacturing of iron or steel, or any parts, branches or processes thereof (/f) ; or in or about the working or getting of any mines of coal (I), ironstone, limestone, salt rock; or in or about the working or getting of stone, slate, or clay (m); or in the making or preparing of salt, bricks, tiles, or quarries ; or in or about the making or manu- facturing of any kinds of nails, chains, rivets, anvils, vices, spades, shovels, screws, keys, locks, bolts, hinges or any other articles or hardwares made of iron or steel, or of iron and steel combined, or of any plated articles of cutlery, or of any goods or wares made of brass, tin, lead, pewter or other metal, or of any japanned goods or wares whatsoever ; or in or about the making, spinning, throwing, twisting, doubling, winding, weaving, combing, knitting, bleaching, dyeing, printing, or otherwise preparing of any kinds of woollen, worsted, yarn, stuff, jersey, linen, fustian, cloth, serge, cotton, lea- ther, fur, hemp, flax, mohair or silk manufactures whatsoever, or in or about any manufactures whatsoever made of the said last mentioned materials, whether the same be or be not mixed one with another ; or in or about the making or otherwise preparing, ornamenting or finishing of any glass, porcelain, china or earthenware whatsoever, or any parts, branches or processes thereof, or any materials used in any of such last mentioned trades or employments ; or in or about the making or preparing of bone, thread, silk, or cotton lace, or of lace made of any mixed materials. 20. And be it further enacted, that nothing herein contained shall Domestics, extend to any domestic servant or servant in husbandry. 21. And be it further enacted, that no justice of the peace, being Certain per- a person also engaged in any of the trades or occupations enumerated """^ n?* '" in this act, or the father, son or brother of any such person, shall act ffces^''"^' as a justice of the peace under this act. 22. And be it further enacted, that in all cities, boroughs or cor- County ma- porate towns, where the magistrates for the time being are disquali- gistrate.s to fied by the foregoing: clause from administerina; this act, then and in ^'l' '" '-'^^'^^ , 1 c 1 1 11 , • 1 11 1 where those every such case, and so otten as the same shall happen, it shall be of towns. lawful for the magistrates of the county in which the ofl'ence may be &c., are dis- coinmitted (and not disqualified as aforesaid) to administer, and they qualified as are hereby authorized and empowered to hear, examine ^nd deter- °^^" mine any offences committed against this act in any such cities, boroughs or corporate towns ; and it shall be lawful for the com- plainant to remove the cases of information or complaint from the said cities, boroughs or corporate towns to any other court of session (k) In Millard v. Kelly, 32 workman or labourer within the Law Times, 12.3, a labourer em- true meaning of this act, although ployed in loading boats with iron, he does a portion of the work was held within the act. himself. Where the earth re- (/) In Bowers v. Lovekin, 25 moved is claij, which is used for L. J., Q. B. .371 ; S. C.QE. k. B. making bricks ; qucere, whetlier a 5S4, butty colliers, who engaged labourer engaged in the removal to get coal at so much per yard, of such earth is a person " em- and were bound to work person- ployed in or about the working ally, and who did so work, were or getting of clay," within sect, held uithin the act, although they 19, Riley \. Warden, 2 Exc. 59; employed other workmen under Sharman v. Saunders, 13 C. B. them. 166; Ingram v. Barnes, Id L. J., (m) A contractor, to execute a Q. B. 82, 319; S. C. 7 E. & B. railway cutting at so much per 115; see also ante, ]). 326, note cubic yard, who employs men (/); and Weaver v. Floyd, 21 L. under him to assist, is not a J., Q. B. 151. JI24 APPENDIX. or petty session not exceeding twelve miles from the place where the offence shall have been committed, any law, charter, usage or custom to the contrary notwithstanding. Paiticular 93. And be it I'urther enacted and declared, that nothing herein to the "eiie- contained shall extend or be construed to extend to prevent any em- rality of the ployer or any artificer, or agent of any such enijjloycr, from stipply- ^^^^■- ing or contracting to supply to any such artificer any medicine or medical attendance, or any fuel, or any materials, tools or iuipleraents to be by such artificer eini)loyed in his trade or occupation, if such artificers be employed in mining, or any hay, corn or other provender to be consumed by any horse or other beast of burden employed by any such artificer in his trade and occujiation ; nor from demising to any artificer, workman or labourer employed in any of tlie trades or occupations enumerated in this act the whole or any part of any tenement at any rent (w) to be thereon reserved ; nor from supplying or contracting to supply to any such artificer any victuals dressed or prepared under the roof of any such employer, and there consumed by such artificer; nor from making or contracting to make any stop- page or deduction from the wages of any such artificer, for or in respect of atiy such rent; or for or in respect of any such medicine or medical attendance ; or for or in respect of such fuel, materials, tools, implements, hay, corn or provender, or of any such victuals dressed and prepared under the roof of any such employer ; or for or in respect of any money advanced to sucli artificer for any such purpose as aforesaid ; provided always, that such stoppage or deduc- tion shall not exceed the real and true value of such fuel, materials, tools, implements, hay, corn and provender, and shall not be in any case made from the wages of such artificer, unless the agreement or contract for such stoppage or deduction shall be in writing, and signed by such artificer. Employers 24. And be it further enacted and declared, that nothing herein may advance contained shall extend or be construed to extend to prevent any such art'ificersfor employer from advancing to any such artificer any money to be by certain pur- him contributed to any friendly society or bank for savings duly es- posee. tablished according to law, nor from advancing to any such artificer any money for his relief in sickness, or for the education of any child or children of such artificer, nor from deducting or contracting to deduct any sum or sums of money from the wages of such artificers for the education of any such child or children of sucli artificer, and unless the agreement or contract for such deduction shall be in writing, and signed by such artificer. Definition 25. And be it further enacted and declared, that in the meaning of terms, and for the purposes of this act all workmen, labourers (0) and other persons in any manner engaged in the performance of any work, em- ployment or operation of what nature soever, in or about the several " artificers," trades and occupations aforesaid, shall be and be deemed " arti- ficers ;" and that within the meaning and for the purposes aforesaid all masters, bailiffs, foremen, managers, clerks and other persons engaged in the hiring, employment or superintendence of the labour "employers," of any such artificers, shall be and be deemed to be " employers ;" and that 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 recompence, 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 an amount uncertain, shall be deemed and («) See Chawner v. Cumndiigs, (o) See Riley v. Warden, ante, ante, p. 417; note {d). p. 423, note {m). SCHEDULE TO 1 & 2 WILL. 4, c. 37. 425 taken to be the '' wages" of such labour ; and that within the mean- " wages," ing and for the purjjoses aforesaid any agreement, 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 artificer are jjarties 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." "contract." 26. And be it further enacted, that this act shall not commence or Commeiice- take effect till the expiration of three calendar months next after the mentof act. day of passing the same. 27. And be it further enacted, that the provisions of this act shall To extend extend over the whole of that part of the United Kingdom of Great o'^?'' Great Britain and Ireland called Great Britain. SCHEDULE refen-ed to in tlie foregoing Act Form of Conviction. \ BE it remembered, that on this day of to wit. S in the year of our Lord at in the county of A. B. is duly convicted before us, C. D. and i. G., two of his Majesty's justices of the peace for the of for that the said A. B. \_specify the offence, and the time and place when and where committed^, whereby the said A. B. has forfeited the sum of this being adjudged to be the first [or second] offence [as the case may ie] against tiie provisions of an act to prohibit the pay- ment of wages in goods, besides the costs of this conviction, which we assess at the sum of [here state to whom and in what pro- portions the penalty and costs are to be paid^ pursuant to the statute in that case provided. Givea under our hands and seals, Summons to Witness, 1 WHEREAS information upon oath hath been made to wit. j before me, A. B. Esquire, one of his Majesty's justices of the peace for the county aforesaid, that C. D. of has been guilty of an offence against the laws prohibiting the payment of wages in goods, and that you are a material witness to be examined on the hearing and determination of such information : These are therefore to require you to appear personally before me and such other justice or justices as shall hear and determine such information, at in the county aforesaid, on the day of at the hour of of the same day, there to be examined touching the matters alleged in such information. As witness my hand, Warrant of Commitment of a Witness, "V To the constable or other proper officer and to the keeper to wit. J or gaoler of Whereas C. D. hath been duly summoned to appear and give evidence before us, A. O. and (i. F., two of his Majesty's justices of the peace for the county [or riding, city, division or place], of on this day of being the time and place appointed 426 APPENDIX. for hearing and cU'tcrmiiiinot have completed his or her twelfth year of age, without a certificate of the same form, nor from and after the expiration of thirty months after the passing of this act any child who shall not have completed his or her thirteenth year of age, without a certificate of the same form, which certificate shall be taken to be sufficient evidence of the ages respectively certified therein (a). 12. And be it further enacted, that for the purpose of obtaining the certificate hereinbefore required in the case of children under the age of eleven, twelve or thirteen years respectively, the child shall personally appear before some surgeon or physician of the place or neighbourhood of its residence, and shall submit itself to his examination ; and unless the surgeon or physician before whom the child has so appeared shall certify his having had a personal ex- amination or inspection of such child, and also that such child is of the ordinary strength and appearance of children of or exceeding the age of nine years, and unless also such certificate shall within three months of its date be countersigned by some inspector or jus- tice, or in that part of the United Kingdom called Scotland by some inspector or justice or burgh magistrate, such child shall not be em- ployed in any factory or mill (a). 13. And be it further enacted, that the certificates hereinbefore required in the case of children under the age of eleven, twelve or thirteen years respectively shall be in the form following (6) : — I \^iia7ne and place of resii/eiice], surgeon [or physician], do hereby certify, that A. B. the son [or daughter] of [name and residence of parents, or if no parents, then the residence of the child] has appeared before me, and submitted to my examination ; and that the said [name] is of the ordinary strength and appearance [according to the fact] of a child of at least nine years of age [or if apparently above nine, say exceeding]. 14. And be it further enacted, that from and after the commence- ment of the several periods hereinbefore appointed for restricting the employment of children under the ages of eleven, twelve and thirteen years respectively, it shall not be lawful to employ, keep or allow to remain in any factory or mill any person between the said ages respectively and the age of eighteen for more than nine hours in any day, nor between the hours of nine o'clock in the evening and five o'clock in the morning, without first requiring and receiving from such person a certificate in proof that such person is above the (a) See further as to these certificates, 7 & 8 Vict. c. 15, ss. 8 to 17, inclusive, post, {b) See last note. 3 & 4 WILL. 4, c. 103. 431 age of eleven, twelve and thirteen respectively, which certificate, if a new certificate shall be required, shall be in such form as may be ordered by an inspector. 15. Provided nevertheless, and be it enacted, that the penalties Penalties and punishments hereinafter provided against any person not re- against per- quiring or not receiving such certificate shall not be levied, if upon f""^- "'" .1 1 ■ ^ 1- r 1 ,■ ,. , , . ' . having cer- tlie complaint or proceedmg tor the entorcement of such penalties it tificates not shall appear to the satisfaction of the inspector or justice, or in that to be levied )jart of the United Kingdom called Scotland to the satisfaction of ''^"*^^^,' the inspector or justice or burgh magistrate, by or before whom such u'l'e person ))roceeding shall be had, that the person so employed more than employed nine hours in the day, or between the hours of nine o'clock in the '"^'* above evening and half-past five o'clock in the morning, without such cer- ^'jfjfg^^ '^'^' tificate, was at the time of the alleged otience above the age of eleven, twelve or thirteen respectively. 16. And be it further enacted, that in case any inspector or justice Provision in or burgh magistrate shall refuse to countersign any such certificate, casemagis- he shall state in writing his reasons for such refusal, and the parents '""^'^^ refuse ..,,.,, , '^ , , . ,. , . i^. „ to counter- or such child may thereupon take the certificate to the justices ot sjn-n certiti- the peace at petty sessions for the place or district of the child's re- cate. sidence, who are hereby empowered and required to decide upon the validity of such refusal ; and every such act of any such petty ses- sions shall be free of all charge, cost or expence whatsoever. 17. And whereas by an act, intituled " An Act for the Preserva- 42 Geo. 3, tion of the Health and Morals of Apprentices and others employed c- ^3. in Cotton and other Mills and Cotton and other Factories," passed in the forty-second year of the reign of his late Majesty George the Third (o), it was amongst other things provided, that the justices of the peace for every county or place in which such mill was situated should appoint yearly two persons not interested in or in any way connected with such mills or factories in such county to be visitors ■ of such mills or factories, which visitors so appointed were em- powered and required by the aforesaid act to enter such factories at any time they might think fit, and examine and report in writing whether tjie same were conducted according to the laws of the realm, and also to direct the adoption of such sanitary regulations as they might, on advice, think proper: And whereas it appears that the provisions of the said act with relation to tlie appointment of in- • spectors were not duly carried into execution, and that the laws for the regulation of the labour of children in factories have been evaded, partly in consequence of the want of the appointment of proper visitors or officers whose special duty it was to enforce their execution ; be it therefore enacted, that upon the passing of this act Inspectors it shall be lawful for his Majesty by warrant under his sign manual 1° }><^ ^P- to appoint during his Majesty's pleasure four persons to be inspectors P"'"'''''- of factories and places where the labour of children and young per- sons under eighteen years of age is employed, and in the case of the death or dismissal of any of them to appoint another in the place of such deceased inspector, which said several inspectors shall carry into effect the powers, authorities, and provisions of the present act ; and such inspectors or any of tliem arc hereby empowered to enter any factory or mill, and any school attached or belonging thereto, at all times and seasons, by day or by night, when such mills or factories are at work, and having so entered to examine therein the children and any other person or persons employed therein, and to make in- (e) ^nte, p. 408, and see fur- duties, &c., 7 & 8 Vict. c. 15, ss. ther as to inspectors and their 2 to 8 inclusive, post. 432 APPENDIX. Powers and duties of inspectors for the en- forcement of this act. One of the Secretaries of State may appoint per- sons to su- perintend under the inspector the execution of this act. qiiiry respecting their condition, employment and education ; and such inspectors or any of them are hereby empowered to take or call to their aid in such examination and inquiry such persons as they may choose, and to summon and require any person upon the spot or elsewhere to give evidence upon such examinations and inquiry, and to administer to such person an oath. 18. And be it furtlier enacted, that the said inspectors or any of them shall have power and are hereby required to make all such rules, regulations and orders as may be necessary for the due execu- tion of this act, which rules, regulations and orders shall be binding bn all persons subject to the provisions of tliis act : and such inspec- tors are also hereby authorized and required to enforce the attendance at school of children em])loyed in factories according to the provi- sions of this act, and to order tickets or such other means as they may think fit for voucliers of attendance at such schools ; and such inspectors are also hereby required to regulate the custody of such tickets or vouchers, and such inspectors may require a register of them to be kept in every school and factory ; and such inspectors are also hereby authorized and required to order a register of the children employed in any factory, and of tlieir sex and hours of attendance, and of their absence on account of sickness, to be kept in such fac- tory; and all registers, books, entries, accounts and pa])ers kept in pursuance of this act shall at ail times be open to such inspectors, and such inspectors may take or cause to be taken for their own use such copy as they may think pro])er ; and such inspecto.s shall also make such regulations as may be proper to continue in force any certificates, tickets or vouchers required by this act, and such cer- tificates, tickets or vouchers so continued in force shall have the same operation and effect as new certificates, tickets or vouchers; and such inspector shall order and is hereby authorized to order the occupier of any factory or mill to register or cause to be registered any information with relation to the performance of any labour in such mill or factory, if such inspector deem such information neces- sary to facilitate the due enforcement of any of the provisions of this act or of any of the regulations which he may make under the autho- rity of this act ; and such inspector is hereby authorized to order such occupier of any mill or factory to transmit, in snch manner as may be directed in such order, any information with relation to the persons employed or the labour performed in such mill or factory that such inspector may deem requisite to facilitate the performance of his duties, or any inquiry made under the authority of this act. 19. And be it further enacted, that it shall be lawful for one of his Majesty's principal Secretaries of State, if he shall see fit, upon the application of any inspector, to appoint any one or more persons to superintend, under the direction of any inspector, the execution of the provisions of this act, and of all rules, regulations and orders made under the authority thereof; and such person shall be paid by such salary as may be determined by one of his Majesty's principal Secretaries of State; and such person so appointed shall have autho- rity to enter any school-room, counting-house, or any part of any factory or mill, excepting sucli part or parts as may be used for manufacturing processes ; and if any constable or peace officer shall be required by any inspector to perform any continuous service, it shall be lawful for such inspector to allow a special recompence to such constable or peace oificer for such service : provided, never- theless, that any such orders may be altered or disallowed by one of his Majesty's principal Secretaries of State, on complaint made to him by memorial from any party interested. 3 & 4 WILL. 4, c. 103. 433 20. And be it further enacted, that from and after the expiration Children in of six months from the passing of this act every child hereinbefore factories to restricted to the performance of forty-eight hours of labour in any school, one week shall, so long as such child shall be within the said re- stricted age, attend some school to be chosen by the parents or guardians of such child, or such school as may be appointed by any inspector in case the parents or guardians of such child shall omit to appoint any school, or in case such child shall be without parents or guardians ; and it shall and may be lawful, in such last-mentioned case, for any inspector to order the employer of any such child to make a deduction from the weekly wages of such child as the same shall become due, not exceeding the rate of one penny in every shilling, to pay for the schooling of such child; and such employer is hereby required to pay the sum so deducted according to the order and direction of such inspector {d). 21. And be it further enacted, that after the expiration of six Schoolmas- months from the passing of this act it shall not he lawful to employ t'^'' s voucher or continue to employ in any factory or mill any child restricted by this act to the performance of forty-eight hours of labour in any one week, unless such child shall, on Monday in every week next after the commencement of such employment, and during every succeed- ing Monday or other day appointed for that purpose by an inspector give to the factory master or proprietor, or to his agent, a school- master's ticket or voucher, certifying that such child has for two hours at least for six out of seven days of the week next preced- ing attended his school, excepting in cases of sickness, to be cer- tified in such manner as such inspector may appoint, and in case of any holiday, and in case of absence from any other cause allowed by such inspector, or by any justice of the peace in the absence of the inspector; and the said last-mentioned ticket shall be in such form as may be settled by any inspector (e). 22. And be it further enacted, that wherever it shall appear to any Means of inspector that a new or additional school is necessary or desirable to ''jj^i^'"°i enable the children employed in any factory to obtain the education schools, required by this act, such inspector is herehy authorized to establish or procure the establishment of such school. 23. And be it further enacted, that if upon any examination or Inspector inquiry any inspector shall be of opinion that any schoolmaster or l|'iU)^w''order schoolmistress is incompetent or in any way unfit for the performance f„r salary, if of the duties of that office, it shall and may be lawful for such in- schoolmaster spector to disallow and withhold the order for any payment or any or school- salary to such schoolmaster or schoolmistress as hereinbeibre pro- competent. vided. 24. And be it further enacted, that if any child within the several Mill-owner ages hereinbefore restricted to the performance of nine hours of day liable to labour shall be kept or allowed to remain in any room or place J^i^'i'^^j-emain- whatsoever where any machinery is used, or shall be kept or allowed ;„„ on the to remain on any premises within the outer walls of any factory or premises mill, for any longer time than nine hours during any one day, or for more than , •'. ^, , ., „ 1 • t. • ..1 ' r- nme hours. any longer tnne than the residue of such nme hours m the case ot any child which has been previously employed for any shorter time during the same day in any other factory or mill, the occupier of such factory or mill shall, without any evidence of the employment of such child, be liable to the same penalty and punishment as for employing (d) See further, 7 & 8 Vict. c. (e) See further, 7 & 8 Vict. c. 15, ss. 38, 57, post. 15, s. 39. u 434 APPENDIX. Proviso as to play- grounds and schools. Notices by inspectors. Interior walls of every mill, &c., to be lime-washed. An abstract nf this a"t, aiid such rules and regulations as any in- spector may determine, .shall be hung up in mills. Punishment for forgery of certificates. Parents liable to jienalty of •20s. for the employment of cliildren beyond the legal hours, &c. such child for such lonj^er period: provided ncvertlicless, that no place, yard or play-ground open to the public view shall be con- sidered part of tlie premises on which children shall not be allowed to remain beyond tlie hours hereinbefore stated : And be it further provided, that the children may be allowed to remain in any school- room attached to such factory or mill, or in any other waiting room or parts of the premises where no machinery is usc^d, and whicli shall at all times be open to the inspection of any mill warden or peace officer duly appointed under the jjiovisions of this act. 25. And be it further enacted, that notice of any general order or regulation applying to moie than one mill or factory, made by any inspector, if published for two successive weeks in one or more news- papers published in the town, place or county where any such mill or factory is situate, shall in all cases, at the end of seven days after the second publication thereof, have the same effect in attaching a responsibility upon any offender against such order or regulation as a notice personally served upon such offender : yirovided nevertheless, that such notice shall not be to the exclusion of any other special notice which any inspector may deem expedient or proper. 2(). And be it further enacted, that the interior walls, except such parts as are painted, of every mill or factory or building where tlie process of manufacturing is carried on, shall be limewashed, and the ceilings of all rooms which have rooms or lofts above them, and all ceilings which are plastered, sliall be whitewashed once every year, unless permission to the contrary, in writing, be granted by any inspector (/). 27. And be it further enacted, that a copy or copies of such abstract of this act, and also such copy or copies of any regulation or regulations made in pursuance of this act, as any inspector shall direct, shall be hung up and affixed in a conspicuous part or in the several departinents of every mill or factory; and such copy or copies of such abstract and of such rules or regulations, so hung up and affixed, shall be signed by the master or manager or overseer of such mill or factory ; and such copy or copies shall be renewed by such master, manager or overseer sq often as any inspector may direct (g). 28. And be it further enacted, that if any person shall give, sign, countersign, endorse, or in any manner give currency to any false certificate, knowing the same to be untrue, or if any person shall forge any certificate, or sliall forge any signature or endorsement on any certificate, or shall knowingly and wilfully give false testimony upon any point material to any certificate of any inspector or school- master, such person shall be deemed guilty of a misdemeanor, and shall, on conviction thereof before any inspector or justice, be liable to be imprisoned for any period not exceeding two months, in the house of correction in the county, town or place, where such oifence was committed. 29. And be it further enacted, that in case of the employment of any child contrary to the provisions of this act, or for a longer time than is hereinbefore limited and allowed, or without a due compli- ance with the provisions of this act touching the education of children, or the certificates of surgeons or magistrates, the parent or parents of such child, or any person having any benefit from the wages of such child, shall be liable to a penalty (A) of twenty (/) See also 42 Geo. 3, c. 73, s. 2, ante, p. 409; 7 & 8 Vict. c. 15, ss. 18, 58, poxl. (g) See also 42 Geo. 3, c. 73, s. 12, ante, p. 411; 7 & 8 Vict. c. 15, s. 28, post. (//) See 7 & 8 Vict. c. 15, s. 40, post. 3 & 4 WILL. 4, c. 103. 435 shillings, unless it shall appear to the satisfaction of the justice or inspector that such unlawful employment has been without the wilful default of such parent or person so benefited as aforesaid. 30. And be it further enacted, that if any offence shall be com- Agents and mitted against this act, for which the master of any factory or mill is servants of legally responsible, and it sliall appear to the satisfaction of any o^yner's to justice or inspector that tlie same has been committed without the be person- personal consent, concurrence or knowledge of such master, by or ally liable, under the authority of some agent or servant or workman of such master, it shall be lawful for such inspector or justice to summon such agent or servant or workman before him to answer for such offence, and such agent or servant or workman shall be liable to the penalties and punishment for such offence herein provided, and such inspector or justice shall convict such agent or servant or workman in lieu of such master. 31. And be it further enacted, that if any employer of children in Penalties any factory or mill shall by himself or by his servants or workmen for offences offend against any of the provisions of this act. or any order or regu- ^^f'"^' ''^ lation of any inspector made in pursuance hereof, such offender shall for such offence (except in the case of any offence for which some other penalty or punishment is specially provided) forfeit and pay any sum not exceeding twenty pounds, nor less than one pound, at the discretion of the inspector or justice before whom such offender shall be convicted : provided nevertheless, that if it shall appear to such inspector or justice that such offence was not wilful nor grossly negligent, such inspector or justice may mitigate such penalty below the said sum of one pound, or discharge the person charged with such offence (i). 32. And be it further enacted, that if any person shall knowingly Penalty for and wilfully obstruct any inspector in the execution of any of the fns^jec-ors^ powers entrusted to him by this act, such person shall for every such offence forfeit and pay a sum not exceeding ten pounds (/c). 33. And be it further enacted, that such inspector shall have the Inspectors to ^, ■ ] • ■ J- ^- ..11 J have same same powers, authority and jurisdiction, over constables and peace powers over officers, as regards the execution of the provisions of this act, as may constables as by law be exercised by his Majesty's justices of the peace over such justices. constables and peace officers. 34. And be it further enacted, that all proceedings for the en- Proceedings forcement of any penalty or punishment imposed by or under the a?t roa v be authority of this act may be had before any inspector or justice of i,^(j before the peace acting in or for the town, place, county or division, where any one in- the offence shall be committed : and the inspector or ju^tice before ^P^'^'"'' "'^ whom any person shall be summarily convicted and adjudged to pay niagistrate. any sum of money for any offence against this act may adjudge that such person shall pay the same either immediately or within such period as the said inspector or justice shall think fit; and in case such sum of money shall not be paid immediately or at the time so appointed, the same shall be levied by distress and sale of the goods and chattels of the offender, together with the reasonable charges of such distress ; and for want of sufficient distress such offender shall be imprisoned in the common gaol for any term not exceeding one calendar month where the sum to be paid shall not exceed five pounds, or for any term not exceeding two calendar months in any (0 See 7 & 8 Vict. c. 15, s. (k) See 7 & 8 Vict. c. 15, ss- 40, and ss. 56 to G5 inclusive, 40, 61, post, post. U 2 436 APPENDIX. Complaints to be pre- ferred at or before the visit of tlie inspector ; and previous notice given. Proviso as to penalties. In case of partnerships, one name f utiicient for summons, &c. Service of summons. Inspectors and jus- tices may .summon witnesses to appear and give evi- dence, and on neglect may commit to prison ; and aft.'^r- ivards dis- charge them on sufficient excuse or compliance. Convictions to he filed amongst records of county. one case, the imprisonment to cease in each of the cases aforesaid ujjon payment of the sum due. 35. And be it further enacted, that all complaints for offences against this act sliall be preferred at or before the time of the visit, duly notified, of any inspector next after the commission of such offence ; atid written notice of the intention to prefer the com])laint for such offence shall by the complainant be given witliin fourteen days after the commission of such offence to the party or parties complained against: provided always, that no more than one penalty for a repetition of the same off'ence shall be recoverable, except after the service of the written notice as aforesaid (/). 36. And be it further enacted, that it shall not be deemed neces- sary in any summons or warrant issued in pursuance of this act to set forth the name or other designation of each and every the ))arf ners in any such mill or factory, but that it sliall be lawful to insert in stich summons or warrant the name of the ostensible occupier, or title of the firm by which the occupier or occupiers employing the workpeople of every such mill or factory are usually designated and known. 37. And be it further enacted, that the service of such summons or warrant on any occupier, principal manager, conductor or agent of any such mill or factory shall be good and lawful service. 38. And be it further enacted, that it shall be lawful for the in- spectors or any of them, or for any justice of the peace, upon any complaint, or upon any investigation under this act, without any com- plaint, to administer an oath to any witness, and to summon any witness forthwith to appear and give evidence before him or them, or at a time and place appointed for hearing such complaint or making such investigation, or to order such witness to be l^rought before him by any constable or peace officer; and if such witness shall not appear according to such summons, proof upon oath having been given of the due service of such summons, or shall resist such constable or peace officer, or shall not submit to be examined as a witness, it shall be lawful for such inspectors and justices by warrant under their hand and seal to commit such person for such non-ap- pearance, resistance or non-submission to the county prison, or prison of the place where such offence was committed, there to remain without bail or mainprize for any time not exceeding two calendar months. 39. Provided nevertheless, and be it enacted, that, except in the case of resistance to any constable or peace officer, it shall be lawful for the inspector or justice by whom such person shall have been committed to discharge such person from prison, if such person shall show any cause to such inspector or justice which shall be deemed satisfactory as an excuse for such non-appearance, or if such person shall afterwards submit himself to be examined to the satisfaction of such inspector or justice, and the order of such inspector or jus- tice for such discharge shall be a sufficient warrant to any gaoler or prison keeper. 40. And be it further enacted, that every conviction under this act before any inspector or justice may be made according to the form in the schedule to this act annexed; which conviction shall be certified to the next general quarter sessions, there to be filed amongst the records of the county, riding or division, and shall have the force of an act of record, whether the same shall be by an in- spector or by a justice of the peace for such county, riding or division ; (/) See 7 & 8 Vict. c. 15, s. iO,post. 3 & 4 WILL. 4, c. 103. 437 and no conviction or other proceeding of any inspector or justice under tliis act shall be deemed illegal for any mere informality. 41. And be it fLirtlier enacted, that if any person who shall have Inspector or been sentenced or adjudged to pay any penalty or forfeiture under justice may this act shall neg-lect or refuse to pay the same, it shall be lawful for commit to . . ° . , ,- 1 1 1111 prison lor tlie inspector or magistrates beiore whom such person shall have t^o months been convicted to issue his warrant to distrain the goods and chattels in case pay- of such person; and if no sufficient distress shall be found, it shall ment of be lawful for the said inspector or magistrates, upon such fact being ^f^^e^ or certified by the constable having the execution of such distress distress is warrant, to commit such person to the house of correction or common iusufli<;ient. gaol of the town, county or place wliere such offence was committed for any time not exceeding two months ; and the said warrant of dis- tress, commitment and certificate of the constable may be in the forms contained in the schedule to this act annexed. 42. And be it further enacted, that no appeal against any convic- As to appea'. tion under this act shall be allowed, except in the case of a convic- tion for the forgery of any certificates, vouchers or other documents required by this act, or by any inspector under the authority of this act, neither shall any conviction, except in the case herein last ex- As to con- cepted, be removable by certiorari or bill of advocation into any ^'"-'tions. court whatever (m). 43. And be it further enacted, that any justice or inspector by Application whom any complaint under this act is determined shall, if he so of penalties, thinks fit, give to the complainant or prosecutor one-half of any penalty imposed for any offence against any of the provisions of this act, together with all costs of prosecution and conviction, and the remainder of the penalty, or the whole if he shall think fit, shall be applied as such justice or inspector may direct for the benefit of any school wherein children employed in mills or factories are educated in such township or place where such offence shall be committed : provided always, that only one penalty shall be recoverable for any Restriction one description of offence from any one person for any one day ; and ^M" P^nal- that it shall not be deemed necessary for the complainant or prose- cutor to name in any summons the particular township in which Summons, such offence shall have been committed, but it shall be lawful to set forth in such summons the name of the parish where such offence may have been committed : provided always, that such summons shall be issued upon complaint being made upon oath(M). 44. And be it further enacted, that every inspector shall be and is Inspector hereby authorized to order any constable or peace officer to provide "i=>y "l'''^'' r -^ , ■ -1 I- t, 1 1- •»..• 1 constable to for such inspector a convenient place tor holding any sitting; and provide a the expense of providing such place shall be defrayed in the manner convenient and proportions and by the person or persons herein appointed for pliice for the payment of jmy special remuneration to any constable or peace ^^t^^"^ officer. 45. And be it further enacted, that every inspector shall keep full Inspectors minutes of all his visits and proceedings, and shail report the same to ^" make an- ,. , . ,, . , . •' , c • !• c ^ \. • • "ual reports, one ot his Majesty's principal Secretaries ot state twice in every year, and oftener if required, and shall also report tiie state and con- dition of the factories or mills and of the children employed therein, and whether such factories or mills a!c or are not conducted accord- ing to the directions of this act and of the laws of the realm : and Proceedings whereas it is expedient that the proceedings, rules, orders and regu- "<' inspectors lations of the several inspectors appointed under this actsliould beas {,e''un^fo/„" (m) See 7 & 8 Vict. c. 1.3, ss. (n) See 7 & 8 Vict. c. 15, ss. 40, 69, 70, post. 40, 66, post. 438 APPENDIX. Bursh ma- gistrates in Scotland to exercise same powers as justices of peace in England. Act not to extend to persons on repairs. The act 1 & 2 Will. 4, c. 39, re- pealed, ex- cept as it repeals any other acts. Construction 'of terms. Public act. nearly alike as is practicable under all circumstances, therefore such inspectors are hereby required, within three months next after they shall have commenced the execution of their several duties and powers under this act, and twice at least in every year afterwards, to meet and confer together respecting their several proceedings, rules, orders, regulations, duties and powers under this act, and at such meeting to make their ])roceedings, rules, orders and regulations as uniform as is expedient and practicable ; and such inspectors are hereby required to make and keep full minutes of such meetings, and to report the same to such Secretary of State when they make the report hereinbefore required. 46. And be it further enacted, and it is hereby declared, that in all cases in which any justices or justice of the peace are or is re- quired to act or do any thing in any manner under tliis act, or are or is named therein, and whenever the subject-matter of any one of the enactments or provisions of this act shall arise within that part of the United Kingdom called Scotland, the burgh magistrates shall be held to have and shall have within the limits of their own jurisdic- tion the same powers, duties and authorities, and which they are hereby required to exercise, as are by this act conferred upon the said justices of the peace, and are required to be exercised by them. 47. Provided always, and be it enacted, that nothing in this act contained shall apply to mechanics, artisans or labourers under, the prescribed ages working only in repairing the machinery or pre- mises (o). 48. And be it further enacted, that from and after the first day of January one thousand eight hundred and thirty-four the act passed in the first and second years of the reign of his })resent Majesty, intituled " An Act to amend the Laws relating to Apprentices and other Persons employed in Cotton Mills, and to make further Pro- visions in lieu thereof," shall be repealed, and the same is hereby repealed, except as to any act or acts repealed by the same. 49. And be it further enacted, that any words in this act denoting the masculine gender shall be construed to extend to ])ersons of either sex, and any words denoting the singular number shall be construed to extend to any number of persons or things, if the subject-matter or context shall admit of such an interpretation, unless sucli con- struction shall be in express opposition to any other enactment. 50. And be it further enacted, that this act shall be deemed and taken to be a public act, and shall be judicially taken notice of as such by all judges, justices and others. The SCHEDULE to which this Act refers. - Form of Conviction. County of [town of ? BE it remembered, that on the as the fact may be~\ to wit. \ day of in the year A. B. {^describe the offender'\ was, upon the complaint of C. D. [or upon the view of C. D.,one of his Majesty's inspectors of factories], convicted before E. F., one of his Majesty's inspectors of factories, or justices of the peace, of and for, 4"C- \_as the case may he'], in pur- suance of an act passed in the fourth year of the reign of his Majesty King William tlie Fourth, for \descrihe the offence]. Given under my hand and seal the day and year above mentioned. (o) See also 7 & 8 Vict. c. 15, s. 73. SCHEDULE TO 3 & 4 -WILL. 4, c. 103. 439 Warrant to distrain for Forfeiture, To the Constable, ^-c. County of J WHEREAS A. B. of in the said to wit. s county is this day convicted before me C. D., one of his Majesty's inspectors of factories, [or justices of the peace in and for the said county], upon the oath of a credible witness, [or upon my own view, as the case may fee], for that he the said A. B. hath \_here set forth the offence, describing it particularly in the words of tlie statute or rule, as near as can be^, contrary to the statute \_or rule, if the offence is a;^ainst some rule or regulation or order of an inspector^ in that case made and provided, by reason whereof the said A.B. is adjudged to have forfeited the sum oi £ to be distributed as hereinafter mentioned : These are therefore in his Majesty's name to command you to levy the said sum of £ by distress of the goods and chattels of him the said A.B. ; and if within the space of four days next after such distress by you taken, the said sum of £ together with the reasonable charges of taking and keeping the same, shall not be paid, that then you do sell the said goods and chattels by you so distrained, and out of the money arising by such sale that you do pay [^according to the award of the justice^, returning tlie overplus, on demand, to him the said A. B., the reason- able charges of taking, keeping and selling the said distress being first deducted ; and if sufficient distress cannot be found of tlie goods and chattels of the said A. B. whereon to levy the said sum of £ that then you certify the same to me, together with this warrant. Given under my hand and seal the day of CD. Return of Constable upon IVarrant of Distress where 7io Effects. I, A.B., constable of in the county of do hereby certify and make oath, that by virtue of this warrant I have made diligent search for the goods of the within named and that I can find no sufficient goods whereon to levy the same. As witness ray hand the day of A.B. Sworn before me the day and year C. D. Commitment for Want of Disti'ess. County of I To the constable of in the county of to wit. S ^^^ to the keeper of the common gaol [or house of correction] at in the said county. Whereas A. B. of in the said county was, on the day of convicted before me C. D. Esquire, one of his Majesty's justices of the peace in and for the said county, [or inspector of factories, as the fact may he~\, upon the oath of a credi- ble witness, [or upon my own view, as the case may be], for that he [here set forth the offence], contrary to the statute made in the year of the reign of his Majesty King William the Fourth for [according to the title of the act, or contrary to a certain rule or order or regulation of his Majesty's inspectors of factories], and the said A. B. l)y reason thereof hath been adjudged to forfeit and pay the sum of : And whereas on the day of in the year aforesaid, I did issue my warrant to the constable of to levy the said sum of by distress and sale of the goods and chattels of him the said A. B., and to distribute 440 APPENBIX. the same as in my said warrant was mentioned : And whereas it duly appears to me, upon tlie oath of the said constable, that he hath used his best endeavours to levy the said sum on the goods and chat- tels of the said A. B., but that no sufficient distress can be had whereon to levy the same : These are therefore to command you the said constable of aforesaid to apprehend the said A. B., and him safely to convey to the common gaol [or house of correction] at in the said county, and there deliver him to the keeper thereof, together with this precept ; and I do also command you the said keeper to receive and keep in your custody the said A. B. for the space of unless the said sum shall be sooner paid, pur- suant to the said conviction and warrant; and for so doing this shall be your sufficient warrant. Given under my hand and seal the day of CD. Females not to be em- ployed in mines or collieries after the periods herein men- tioned. Indentures of appren- ticeship of females to be void after the periods herein men- tioned. 5 & 6 Vict. c. 99. An Act to prohibit the Employment of Women and Girls in Mines and Collieries, to regulate the Employvient of Boys, and to make other Provisions relating to Persons working therein (p). [10th August, 1812.] Whereas it is unfit that women and girls should be employed in any mine or colliery, and it is expedient to make regulations regard- ing the employment of boys in mines and collieries, and to make provisions for the safety of persons working therein: be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that from and after the passing of this act it shall not be lawful for any owner of any mine or colliery whatsoever to employ any female person within any mine or colliery, or permit any female person to work or be therein, for the purpose of working therein, other than such as were at or before the passing of this act employed within such mine or colliery • and that from and after three calendar months Irom the passing of this act it shall not be lawful for any owner of any mine or colliery to employ any female person who at the passing of this act shall be under the age of eighteen years within any mine or colliery, or permit such person to work or be therein as aforesaid ; and any indentures of apprenticeship wliereby any female person who at the passing of this act was under the age of eighteen years shall be bound to work or be liable to be called on to work in any mine or colliery shall, at the expiration of three calendar m.onths from the passing of this act, be absolutely void ; and from and after the first day of March one thousand eight hundred and forty-three it shall not be lawful for any owner of any mine or colliery to em- ploy any female person whatsoever within any mine or colliery, or to allow or permit any female person to work or be therein as afore- said ; and every indenture of apprenticeship, or other contract or engagement, whereby any female person whatsoever shall be bound to work or be liable to be called on to work within any mine or col- liery (other than such as are before declared to be void at the end of three calendar months aforesaid) shall, from and after the said first {p) See also 18 & 19 Vict. c. 108, post. 5 & 6 VICT. c. 99. 441 day of March one thousand eight hundred and forty-three, be abso- lutely void. 2. And be it enacted, that from and after the first Jay of March, Males not to one thousand eight hundred and forty-three, it shall not be lawful !^e employed for any owner of any mine or colliery to employ any male person '"nYi";';'! ""^ under the age oi ten years within any mine or colliery, or to permit under ten any such male person to work, or be therein for the purpose of work- years, of ing therein, other than such as at the passing of this act shall have '^S^' *^'- attained the age of nine years, and were at or before the passing of this act employed within such mine or colliery. 3. And he it enacted, that it shall be la.iful for one of her Ma- Appointment jesty's principal Secretaries of State, if and when he shall think fit, of inspectors to appoint any proper person or persons to visit and inspect any coHieiies ■ mine or colliery ; and it shall be lawful for every person so autho- rized to enter and examine such mine or colliery, and the works, buildings and machinery belonging thereto, at all times and sea- sons, by day or by night, and to make inquiry touching any matter within the provisions of this act ; and the owner or occupiers of such mines and collieries, or their agiuts, are iiereby required to furnish the means necessary for such person or persons so appointed to visit and inspect such mines and collieries, works, buildings and machinery ; and every person to be so appointed shall report his who shall proceedings in the execution of this act in such manner as may be report as directed by the Secretary of State ; and he shall in like manner "'^^'^''• report the state and condition of the persons working in such mine or colliery, and whether or not the provisions of this act are properly observed in the mine or colliery which he shall so inspect. 4. And be it enacted, that from and after the passing of this act No person no person or persons shall take any apprentice who shall be bound tobeappren- to work, or be liable to be called on to work, or be otherwise occu- ^^^ years of pied, within a mine or colliery, who shall be under the age of ten age, nor for years, or for a longer term of apprenticeship than eight years, except longer than as the apprentice of a mason, joiner, engine wright or other mechanic, ^'S"' years. whose services may be occasionally required below as well as above ground ; and every indenture of apprenticeship whereby any person indentures shall be hereafter bound contrary to the provisions of this act shall contrary to be void ; and when any person who is now serving under articles of ^'^' ^""^ ' apprenticeship within any mine or colliery shall attain the age of t''°se '" eighteen years, he shall be discharged from such apprenticeship, ^henappren- and the articles of apprenticeship shall become absolutely null and tice attains void. eighteen 5. And be it enacted, that every person or persons, body or com- years, pany, offending against any of the aforesaid provisions, shall forfeit Penalties a sum not more than ten pounds nor less than five pounds, for every !|°a°n'^*j."hTs person employed or suffered to be in a mine or colliery contrary to ^^j the aforesaid provisions, to be sued for and recovered as after men- tioned. 6. Provided always, and be it enacted, that if it shall appear on Penalty on inquiry before any justices under the provisions of this act that any parents or person under the age hereinbefore specified has been employed in *;,"^repr"-'* any colliery on the representation of the parent or natural guardian senting ages of such person that he was above the age so hereinbefore specified, of persons aiid if it shall appear to such justices that such person was so em- employed, ployed under the bond fide impression and belief on tlie part of the employer that he was not under the age so s))ecified, it shall be lawful'for such justices, if they see fit, to remit the said penalty as against the party employing such person, and to summon the parent or natural guardian of the person employed to appear before them U 5 442 APPENDIX. Not to affect persons em- ployed above ground. Where there are vertical or other shafts, no steam or other engine to be under the care of a person under the age of fifteen years. AVho shall be deemed in charge of windlass worked by a horse, &c. Proprietors of mines, &c., not to pay wages at public houses, &c. Wages 80 paid recover- able as if not paid. Penalty of 10/. for pay- ing wages at public houses, &c. on a day to be named for the purpose, and on conviction of such parent or guardian of having wilfully misrepresented the age of the person em])l()yed, such parent or guardian shall forfeit a sum not exceeding forty shillings. 7. And be it enacted, that nothing hereinbefore contained shall prevent any person whatever from being employed in or about any mine or colliery, so as such employment shall be carried on above ground. 8. And be it enacted, that where there shall be any entrance to a mine or colliery by means of a vertical shaft or pit or inclined plane, or where there shall be any communication within any part of a mine or colliery to any other part thereof by a vertical shaft or pit or inclined jilane, then it shall not be lawful for any owner of any such mine or colliery to allow any person or persons other than a male of the age of fifteen years and upwards to have charge of any steam engine or other engine, windlass or gin, (whether driven or worked by manual labour or any other power whatsoever), or to have charge of any part of the machinery, ropes, chains or other tackle of any such engine, by or by means of which engine, ma- chinery, ropes, chains or other tackle, persons are brought up or passed down any such vertical shaft or pit or inclined plane ; and any person or persons offending against the provision last aforesaid shall for every such offence forfeit a sum not exceeding fifty pounds nor less than twenty pounds, to be recovered as after provided. 9. Provided always, and be it enacted, that in the case of a wind- lass or gin worked by a horse or other animal, the person on the bank under whose direction the diiver of the animal used for such windlass or gin shall act shall for the purposes of this act be deemed and taken to be the person having the charge thereof. 10. And whereas the practice of paying wages to workmen at public houses is found to be highly injurious to the best interests of the working classes: be it therefore enacted, that from and after the expiration of three months from the passing of this act no proprietor or worker of any mine or colliery or other person shall pay or cause to be paid any wages or money in respect of wages for work or labour or services done in or about any mine or colliery to anyjierson employed in or about such mine or colliery, or to any person what- ever entitled to or having authority or claiming to have authority to receive such wages, at or within any tavern, public house, beer shop or other house of entertainment, or any office, garden or place belonging thereto or occupied therewith, but all payments in respect of such wages are hereby strictly prohibited and forbidden to be made at or within such places as aforesaid, and all payments so made are hereby declared to be of no effect whatever. 11. And be it enacted, that notwithstanding any payment of wages or money in respect of wages which shall or may be made at any such prohibited place, the person or persons to whom such wages were due or payable, or but for such payment would be due or pay- able, slinll and may recover and receive the same in like manner as if no such payments had been made (17). 12. And be it enacted, that in case any owner of any mine or colliery, or any person liable or intrusted, or employed to pay any wages or money in respect of wages for such work, labour or services aforesaid, shall, contrary to the provision lastly hereinbefore con- tained, pay or cause to be paid any such wages or money to any person whatever, at any such prohibited place as aforesaid, the (q) See Weaver V. Floyd, 21 L. J., Q. B. 151. 5 & 6 VICT. c. 99. 443 person or persons so offending shall for every such offence forfeit a sum not exceeding ten pounds nor less than five pounds, to be re- covered as after ])rovided. 1.'?. And be it enacted, that if any offence shall be committed Agents may against this act for which the owner of any mine or colliery is hereby ^'^ ^" j'"i- made responsible, and it shall be made to appear to the satisfaction ^?iJf„ con- of any justices or sheriff, that the offence has been committed by or trarytothe under the authority of some agent, servant or workman of such act without owner or bv or under the authority of a contractor, without the per- ?''f know- 1 " 111... ■ ■ ,r . ledge 01 sonal consent, concurrence or Knowledge of such owner, it shall be owners. lawful for such justices or sheriff' to summon such agent, servant, workman or contractor before them or him to answer for such offence ; and such agent, servant, workman or contractor, if convicted, shall be liable to the penalties and punishment for such offence herein specified ; and such justices or sheriff may convict such agent, ser- vant, workman or contractor in lieu of such owner. 14. And be it enacted that the "owner" of a mine or colliery Definition shall he taken to mean the immediate proprietor or lessee or occupier of terms^ thereof, and all persons working any mine or colliery, or any part of ii°^J"",,^ any mine or colliery or any lode or seam thereof, for their own benefit ° or as sharers of the profit, and also all partners and companies so working such mine or colliery or any part thereof; and the words "agent" and "servant" shall be taken to mean any person re- ceiving a salary, wages, payment or remuneration for any description of service or work performed in a mine or colliery. 15. And be it enacted, that it shall not be necessary in any infor- Summonses mation, summons or warrant issued under or in consequence of the "^ed not set provisions of this act, to set forth the name or other designation of oTall the"^^ all the partners in any mine or colliery or in the working of any proprietors such mine or colliery, but that it shall be sufficient to insert in any in cases of such information, summons or warrant the name of the ostensible partnership, proprietor, occujjier, lessee or adventurer or title of the firm or com- pany by which the owners, lessees or workers of such mine or col- liery are usually designated and known. 16. And be it enacted, that the service of any summons or war- Service of rant by delivering the same or a copy thereof at the office or counting summons on house of any mine or colliery shall be good and sufficient service ^^""^ ^i*„ j^ thereof on the owner of such mine or colliery (and all complaints service." for offences against this act shall be preferred within three calendar months next after the commission of the ofi'ence). 17. And be it enacted, that all convictions for penalties for any Recovery and. offence against this act may be had before two or more justices application of the peace acting for the county, riding, city, borough, division or ° P'^"^ place where the offence shall haj)pen, or before such justices or the sheriff' of any county or stewartry in Scotland witliin which the offence may have been committed ; and such penalties and the costs and charges att nding the recovery thereof shall be levied by dis- tress and sale of the goods and chattels of the offender or person liable or ordered to pay the same respectively, by warrant under the hands and seals of two or more of the said justices or under the hand of any such sheriff", 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 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 t'lie penalties, costs and charges, when so levied, shall be paid, the oi,e lialf to the informer and the other half to the overseers or managers of tiie poor of the parish, township or place where the 444 APPENDIX. Persons not paying pe- nalties may be impri- soned. Inhabitants of parishes not incom- petent as witnesses. Distress not unliuvful for want of form Appeal to quarter sessions. offence shall have been committed, to be by such overseers or ma- nagers applied in aid of the rate or assessment raised for the relief of the poor of such parish, township or place, and in Scotland, in parishes where there sliall be no assessment for the relief of the poor, as the said managers shall direct, or to her Majesty, in case there shall be no such overseer or manager. 18. And be it enacted, that the justices of the peace or sheriffs by whom any person shall be convicted and adjudged to pay any sum of money for any offence against this act may adjudge that such person shall pay the same, togetlier witli costs, either immediately or within such period as the said justices or sheriffs shall think tit ; and that in default of payment at the time appointed, and in the event of no sufficient distress of the goods and chattels of such per- son being found within the limits of the jurisdiction of the said justices or sheriffs, such person shall be imprisoned in the common gaol or house of correction (with or without hard labour), as to the said justices or sheriffs sliall seem meet, for any time not exceeding two calendar months, the commitment to be determinable upon pay- ment of the amount of the penalty and costs. 19. And be it enacted, that no inhabitant of any parish, township or place shall be deemed an incompetent witness in any suit, action, information, complaint, appeal, prosecution or proceeding to be had, made, prosecuted or carried on under the authority of this act for any offence committed within such parish, township or place, by reason of such person being rated or assessed to, or liable to be rated or assessed to, or being otherwise interested in, the rates or assess- ments of any such parish, township or place. 20. And be it enacted, that where any distress shall be made for any sum or sums of money to be levied by virtue of this act, the distress itself shall not be deemed unlawful, nor the party or parties making the same be deemed a trespasser or trespassers, on account of any defect or want of form in any proceedings relating thereto, nor shall the party or parties distraining be deemed a trespasser or trespassers from the beginning on account of any irregularity which shall be afterwards done by the party or parties distraining, but the person or persons aggrieved by such irregularity may recover full satisfaction for the special damage in an action on the case, to be brought in some of the courts of record at Westminster or Dublin, or by action raised or complaint preferred in the court of session in Scotland : provided always, that no plaintiff or plaintiffs shall re- cover in any action for any such irregularity, trespass or wrongful proceeding, if tender of sufficient amends for any such special damage shall be made by or on behalf of the party or parties who shall have committed or caused to have been committed any such irregularity or wrongful proceeding before such action or complaint brought ; and in case no such tender shall have been made it shall be lawful for the defendant or defendants in any such action, by leave of the court wbere such action shall depend, at any time be- fore issue joined, to pay into court such sum of money as he or they shall see fit; whereupon such proceedings or orders and judgments shall be had, made and given in, and by such court as in other actions where the defendant is allowed to pay money into court. 21. And be it enacted, that any person who shall think himself or herself aggrieved by any conviction by any justices of the peace under this act may appeal to the next court of general or quarter sessions of the peace which shall be holden not less than fifteen days after the day of such conviction for the county, stewartry, riding, city, borough, division or place wherein the cause of complaint shall have 5 & 6 VICT. c. 99.-6 & 7 viCT. c. 40. 440 arisen ; provided that such person shall give to the complainant a notice in writing of such appeal, and of the cause and matter there- of, within seven days after such conviction, and seven clear days at the least before such session, and shall also either remain in custody until the session, or enter into a recognizance with two sufficient sureties before a justice of the peace, conditioned personally to ap- pear at the said session of the peace, and to try such appeal, and to abide the judgment of the court thereupon, and to pay such costs as shall be by the court awarded ; and upon such notice being given and such recognizance being entered into the justice before whom the same shall be entered into shall liberate such person, if in cus- tody ; and the court at such session shall hear and determine the matter of the appeal, and shall make such order therein, with or without costs to either party, as to the court shall seem meet, and in case of the dismissal of the appeal or affirmance of the conviction, shall order and adjudge the offender to be punished according to the conviction, and to pay such costs as shall be awarded, and shall, if necessary, issue process for enforcing such judgment ; and all judg- ments, determinations and proceedings of such justices not appealed from as aforesaid, and of such sheriff or quarter sessions, shall be final, and not subject to review by any process of law or court what- ever, any law or usage to the contrary notwithstanding. 22. And belt enacted, that no conviction, or adjudication made on Convictions appeal therefrom, shall be quashed for want of form, or be removed, "°^ remov- by certiorari or otherwise, into any of her Majesty's superior courts certiorari. of record ; and no warrant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and there be a good and valid conviction to sustain the same. 23. And be it enacted, that this act may be amended or repealed Act may be by any act to be passed in this session of Parliament. &c.^"thVs' 6 & 7 Vict. c. 40. An Act to amend the Laws for the Prevention of Frauds and Abuses hy Persons employed in the Woollen, Worsted, Linen, Cotton, Flax, Mohair and Silk Hosiery Manufactures, and for tlie further securing the Property of the Manufacturers and the Wages of the Workmen engaged therein. [1st August, 1843.] Whereas an act was passed in the session of Parliament held in 8 & 9 Will. 3, the eighth and ninth years of King William the Third, intituled " An '•• ^'^* Act for the further Encouragement of the Manufacture of Lustrings and Alamodes within this Realm, and for the better preventing the Importation of the same, whereby (amongst other matters therein contained) certain penalties, forfeitures and punishments therein referred to were imposed upon persons embezzling or otherwise un- lawfully selling or receiving, as therein is mentioned, silk delivered by the silk manufacturers to be worked up :" and whereas an act was passed in the first year of the reign of her late Majesty Queen Anne, 1 Ann. st. 2, intituled " An Act for the more effectual preventing the Abuses and *•'• "*• Frauds of Persons employed in Working up the Woollen, Linen, Fustian, Cotton and Iron Manufactures of this Kingdom:" and whereas the said act was made perpetual by an act passed in the 440 AVPEXBIX. Ann. c. 30. ninth year of (he reign of her said late Majesty Queen Anne, in- tituled •' An Act for reviving and continuing an Act made in the First Year of Ilcr Majesty's lleign for the more etlectual preventing Abuses and Frauds of Persons employed in the Working up tiie Woollen, Linen, Fustian, Cotton and Iron Manufactures of this 12 Geo. 1, Kin;.!dom :" and wliereas an act was passed in the twelfth year of ^' ■*■*• the reign of his late Majesty King George the First, intituled "An Act to prevent unlawful Combinations of Workmen employed in the Woollen Manufactures, and for better Payment of their Wages:" 13 Geo. 2, And whereas an act was passed in the thirteenth year of his late <^> 8- Majesty King George the Second, intituled " An Act to explain and amend an Act made in the First Year of the Reign of her late Majesty Queen Aiuie, intituled ' An Act for the more effectual pre- venting the Abuses and Frauds of Persons employed in the Work- ing up the Woollen, Linen, Fustian, Cotton and Iron Manufactures of this Kingdom, and also for extending the said Act to the Manufacture of Leather:'" and whereas an act was passed in the 22 Geo. 2, twenty- second year of the reign of his late Majesty King George '^■~^- the Second, intituled "An Act for the more effectual preventing of Frauds and Abuses committed by Persons employed in the Manufacture of Hats, and in the Woollen, Linen, Fustian, Cot- ton, Iron, Leather, Fur, Hemp, Flax, Mohair and Silk Manu- factures, and for preventing unlawful Combinations of Journey- men Dyers and Journeymen Hotpressers, and of all Persons em- ployed in the said several Manufactures, and for the better Payment 17 Geo. 3, of their Wages :" and whereas another act was passed in the seven- c. 56. teenth year of the reign of his late Majesty King George the Third, intituled " An Act for amending and rendering more effectual the several Laws now in being for the more effectual preventing of Frauds and Abuses by Persons employed in the Manufacture of Hats, and in the Woollen, Linen, Fustian, Cotton, Iron, Leather, Fur, Hemp, Flax, Mohair and Silk Manufactures; and also for making Pro- visions to prevent Frauds by Journeymen Dyers:" and whereas an 32 Geo. 3, act was passed in the thirty-second year of his late Majesty King =• **• George the Third, intituled "An Act for extending the Provisions of an Act made in the Thirteenth Year of the Reign of his present Majesty, intituled 'An Act to empower the Magistrates therein mentioned to settle and regulate the Wages of Persons employed in the Silk Manufactures within their respective Jurisdictions, to Manufactures of Silk mixed with other Materials, and for the more effectual Punislunent of Buyers and Receivers of Silk purloined and embezzled by Persons employed in the Matuifacture thereof:' " and whereas the provisions of the said acts have not been effectual to prevent frauds, embezzlements and abuses by persons employed in the woollen, linen, cotton, flax, mohair and silk hosiery manufac- tures, and it is expedient to repeal so much of the said recited acts as relates to the said manufactures, and to make further provisions in lieu thereof, as well for the benefit and encouragement of trade and manufactures as for the security of the property of manufacturers and the wages of the workmen engaged in the said manufactures : be it therefore enacted, by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that from and after the commencement of this So much of act, so much of the said recited acts or any of them as relates to the the said acts woollen, linen, cotton, flax, mohair and silk manufactures, or any as relates to ^f tj^gm, or any manufactures whatsoever made of wool, cotton, flax, linen cotton niohair or silk materials, whether t!ie same be or be not mixed with 6 fie 7 VICT, c. 40. 447 each other or with any other materials, shall, so far as respects the flax, mohair manufactures, trades, occupations and employments hereinafter men- ^"'^ ^^^^ ™=*- tioned, be and the same are hereby repealed save and except so far "e^p^aled^^ as the same may have repealed any former acts or enactments. 2. And be it enacted, that if any person whosoever entrusted with Persons any woollen, worsted, linen, cotton, tlax, mohair or silk materials convicted of for the purpose of being prepared, worked up or manufactured either em|,ez"fing by himself or by any person or persons to be employed by or under any mate- him, or by himself jointly with any person or persons to be employed rials lierein with, by or under him, or for any purpose or work connected with prt'cular- manufacture or incidental thereto, or any parts, branches or pro- feit the value ces-ses thereof, or any tools or apparatus for manufacturing the said of the same materials, shall sell, pawn, purloin, embezzle, secrete, exchange or ^'it'' penalty otherwise fraudulently dispose of the same materials, tools or appa- *° cobts. ratus, or any part thereof, he shall, upon being thereof lawfully con- victed by the oath of the owner of such materials, tools or apparatus, or any part thereof, or of any other credible witness or witnesses before two or more justices of the peace, forfeit the full value of the same, and also forfeit such penalty not exceeding ten pounds, together with costs as to the said justices shall seem meet ; and every such for- Application feiture and penalty shall be applied under the direction of the con- "' penalty victing justices in manner following (that is to say), in the first place f„jtuie" in making suchsatisfaction to the party injured as the said justices shall think proper, and the remainder, if any, shall be applied in the same manner as is hereinafter directed for the disposal of any other penalty under this act ; and in default of payment of such forfeiture Distress war- and penalty with costs immediately on conviction, or within such rant on non- period as the justices so convicting may direct, the said justices may P*>™ent. issue their warrant to distrain and sell the goods and chattels of the person so convicted for the amount thereof and costs; and the pro- ceeds of any distress, after paying the penalty, forfeiture and costs, and also the costs of such distress, shall be paid over to the person convicted ; but if no sufficient distress shall appear or shall be found Conimit- whereon to levy the said penalty, forfeiture and costs, the said justices went in ^ may either immediately, or at anytime after such conviction, commit sufilcien't^ any person so convicted to the common gaol or house of correction, distress. to be there imprisoned with or without hard labour, as to the said justices shall seem meet, for any term not exceeding three calendar months, unless the amount of such forfeiture and penalty with costs, or so much thereof as shall not have been paid previously to the commencement of such imprisonment, be sooner paid. 3. And be it enacted, that if any person whosoever entrusted with Persons any woollen, worsted, linen, cotton, flax, mohair or silk materials for nej/U-cting 1 !• 1 • 111 !• .. J -..1 t" return the purpose of being prepared, worked up or manufactured, either ,„;,t^,riai3 by himself or by any person or persons to be employed by or wniiin a under him, or by himself jointly with any person or persons to be i)rescribed employed with, by or under him, or for any purpose or work eon- '"',J|gJ.° j^ nected with manufacture or incidental thereto, or any parts, branches Jin. sanie or processes thereof, or with any tools or apparatus for manufactur- puniHhment ing the said materials, shall neglect or delay to return the said mate- f^ '<" '-"'i'- . ^, , " 1 ,. !• 1 r !• . bezzltment. rials, tools or apparatus, or any part thereot, tor the space oi fourteen clear days after being required so to do by the party entrusting him therewith, or by some person on his behalf, by notice in writing to be served upon or left at the last or usual place of abode or l)usiiiess of such person (unless j)reventtd by some reasonable and suliicicnt cause to be allowed by the justices before whom he sliall be brought), ' then and in every such case all or so much or so many of the said 448 ArrENDix. Persons knowingly purchfising or receiving embezzled materials or tools guilty of a misde- meanor, punishable as after mentioned. Persons knowingly selling, &c., embezzled materials or tools guilty of a misde- meanor, punishable as after mentioned. Justices empowered to issue warrant for apprehen- sion of offenders against this act, and to commit them for trial. materials, tools or apparatus as shall not be returned to the person so entrusting him therewith within the time aforesaid shall be deemed to be embezzled by the person so neglecting or delaying to return the same ; and the person so neglecting or delaying to return the same shall for every such ofl'ence be liable to be proceeded against for embezzlement in the same manner and subject to the same for- feiture and penalty with costs, and to be applied in the same manner, as are respecti^'ely hereinbefore prescribed and imposed in respect to persons selling, pawning, purloining, embezzling, secreting, ex- changing, or otherwise fraudulently disposing of the said materials. 4. And be it enacted, that any person who shall purchase or take in pawn, or who in any other way shall receive into his premises or possession any woollen, worsted, linen, cotton, flax, moliair or silk materials, and whether the same or any part of the said materials be or be not wholly or partially wrought, made up or manufactured into merchantable wares, or any tools or apparatus for manufacturing the same, knowing that such materials, tools or apparatus are pur- loined or embezzled or fraudulently disposed of, or that the person from whom he shall purchase, take in pawn, or receive the same is fraudulently or unlawfully disposing thereof, or knowing such per- son to be employed or entrusted by any other person or persons to work up, either by himself or by or with others, the materials so pur- chased, taken in pawn, or received for any other person or persons, and not having first obtained the consent of the person or persons so employing or entrusting him therewith, shall, on conviction by the oath of the owner or of any other credible witness or witnesses, be deemed and adjudged guilty of a misdemeanor, and be punished in manner hereinafter mentioned. 5. And be it enacted, that if any person shall sell, pawn, pledge, exchange or otherwise unlawfully dispose of, or ofier to sell, pawn, pledge, exchange or otherwise dispose of any such materials, tools or apparatus as aforesaid, knowing the same to have been so pur- loined or embezzled or received from persons fraudulently disposing thereof as aforesaid, he shall, on conviction by the oath of the owner of such materials, tools or apparatus, or any part thereof, or of any other credible witness or witnesses, be deemed and adjudged guilty of a misdemeanor, and be punished in manner hereinafter mentioned. 6. And be it enacted, that on proof on oath that there is just cause to suspect that any such materials, tools or apparatus as aforesaid have been fraudulently sold, pawned, pledged, purloined or em- bezzled by the person to whom the same were entrusted, or that any such materials, tools or apparatus have been purchased or received, or sold, pawned, pledged, exchanged or otherwise unlawfully dis- posed of or offered for sale, pawn, pledge, exchange or other disposal by any person knowing the same to have been purloined or embez- zled, or received from some person fraudulently disposing thereof, it shall and may be lawful for any one justice of the peace, and such justice is hereby required to issue his warrant for apprehending any such person and bringing him before him or some other justice of the peace for examination ; and if, upon such examination, the charge of having fraudulently sold, pawned, purloined, embezzled or otherwise fraudulently disposed of any such materials, tools or apparatus, or of having purchased, or received, or sold, pawned, pledged, exchanged or otherwise fraudulently disposed of, or of hav- ing offered for sale, pawn, pledge, exchange or other disposal any such materials, tools or apparatus, knowing them to have been pur- loined, or embezzled, or received from some person fraudulently 6 & 7 VICT. c. 40. 449 disposing thereof, shall he supported by evidence to raise a strong presumption of guilt, such justice shall commit such person to the common gaol or house of correction, in order that he may be brought forward for trial at the next petty sessions, unless he enter into such bail witli two sufficient sureties as may be required for his appear- ance before such court on any day to be fixed by such justice. 7. And be it enacted, that if any person entrusted, employed or Workmen contracting to prepare, work up or manufacture, or to have prepared, neglecting worked up or manufactured, either by himself or by any person or \? . '^ persons to be employed by or under him, or by himself jointly with gagements. any person or persons to be employed by or under him, any woollen, not finishing worsted, linen, cotton, flax, mohair or silk materials, shall not pre- "'Y"^ work, pare, work up or manufacture, or cause to be prepared, worked up without or manufactured, the said materials, and return the same within notice. seven clear days after the time which shall have been agreed upon between such person and the owner of the said materials or other the person entrusting him therewith, and in case no such time shall have been so agreed upon, then within seven clear days after being required so to do (unless prevented by some reasonable and suffi- cient cause to be allowed by the justices before whom he shall be brought), or shall leave or return such materials without having performed, as he could and ought to have done, the work he was employed to perform thereon or thereto, and without the consent of the person entrusting him with such materials as aforesaid, or shall damage the same, or if any person shall contract or engage to work or be employed to do or perform, or to have done or performed, any work in any of the said manufactures or connected therewith or incidental thereto, or any parts, branches or processes thereof, either by himself or by any person or persons to be employed by or under him, and whether such contract or engagement shall be to work or be employed for any person exclusively, or for all or part of his time, or for specific work or otherwise, and whether such person is to be paid according to the value or amount of the work done, the time employed, or in any other manner whatsoever, and shall neglect to fulfil such contract or engagement, or absent himself from such work or employment before such notice (if any) as shall have been agreed upon between the said parties for determining the said con- tract or engagement shall have expired, or without giving such notice, or contrary to the terms of such contract or engagement (unless prevented as aforesaid, to be allowed as aforesaid), then and in every such case such person, being thereof lawfully convicted on oath before two or more justices of the peace, shall forfeit any sum not exceeding two pounds as to such justices shall seem meet, and Penalty, also, in case the said materials shall be damaged, the amount of the injury done thereto, to be ascertained by the said justices, together with costs ; and every such forfeiture shall be applied under the direction of the justices so convicting in manner following (that is to say), in the first place in making such satisfaction to the party injured as the said justices shall think proper, and the remainder, if any, shall be applied in the same manner as any penalty under this act ; and in default of payment of such forfeiture and costs imme- diately on conviction, or within such period as the justices so con- victing shall direct, the said justices may either immediately, or at any time after such conviction, commit any person so convicted to the common gaol or house of correction, there to be imprisoned with or without hard labour, as to the said justices shall seem meet, for any term not exceeding two calendar months, unless the amount of such forfeiture and costs be sooner paid. 450 APPENDIX. Justice em- powered to grant search warrants. Peace offi- cers to ap- prehend suspected persons. Persons ap- prehended, and not proving that the property is honestly come by to he punish- able. Adjournment of time for trial allowed on prisoner findiner bail. Punishment of persons convicted of misdemea- nor. 8. And be it enacted, that upon proof on oath before a justice of the j)cace, tliat there is reasonable cause to suspect that any person has in his possession or on his premises any such materials, tools or apparatus as aforesaid, which have been purloined, embezzled or otherwise fraudulently disposed of, it shall be lawful for the said justice, and such justice is hereby required to grant his warrant to search the dwelling-house and premises of such person, and if any such ])roperty shall be found therein to cause such materials, tools or apparatus, and the person in whose possession or on wliose pre- mises the same shall be found, to be brought before him or some other justice oftlie peace to be dealt with in the same manner as any person brought before a justice under the enactment next hereinafter contained. 9. And be it enacted, that every peace officer and constable, and every watchman duly appointed by law, during such time as he shall he on duty, shall and may apprehend or cause be apprehended any per.^^on whom he inay reasonably suspect of having or carrying or in any way conveying, at any time after sunsetting and before sun- rising, any such materials, tools or apparatus as aforesaid, suspected to be purloined, embezzled or otherwise fraudulently disposed of, and shall lodge such person, together with tlie property, in a police office or other place of security, in order that he may be brought before a justice of the peace as soon as convenient, who is hereby empowered to discharge such person, or to order his detention uritil the next court of petty sessions, unless he enter into such bail with two sufficient sureties as may be required for his appearance before such court on any day to be fixed by the said justice, and if the person so apprehended in the act of committing any such offence as aforesaid, or of conveying any such property as last aforesaid, shall not produce before the said court tlie person duly entitled to dispose of such property from whom he bought or received the same, or shall not give an account to the satisfactiori of the said court that the property is honestly come by, then the person so ap- prehended shall be deemed and adjudged guilty of a misdemeanor, and be punished in manner hereinafter mentioned, although no proof shall be given as to whom such property belongs. 10. And be it enacted, that it shall be competent for the party accused, in all proceedings brought under the authority of this act, to move for and obtain an adjournment of the time fixed for trial for such a reasonable time as may appear to the court to be necessary for the party accused to produce the person, duly entitled to sell or dispose of the said property, of whom he bought or received the same, or evidence respecting the same, but the party accused and requesting such adjournment shall be detained in custody or com- mitted to prison, unless he enter into such bail, with two sufficient sureties as shall be required for his appearance before such court, at such time and place as shall be appointed. 11. And be it enacted, that any person who shall be deemed and adjudged guilty of a misdemeanor agreeably to any of the provisions of this act, shall, in addition to being deprived, witiiout com))ensation, of any such materials, tools and apparatus which have been pur- loined, embezzled or otherwise fraudulently disposed of, and which sliall have been found in his possession, forfeit any sum not exceeding twenty pounds for each offence, together with costs, upon being thereof lawfully convicted, by the oath of one or more credible witness or witnesses, before two or more justices of the peace; and every such forfeiture shall be apj)lied under the direction of the justices so convicting in manner following (that is to say^, in the first 6 & 7 VICT. c. 40. 451 place, in making such satisfaction to the party injured as the said justices shall think fit, and the remainder (if any) shall be applied in the same manner as is hereinafter directed for the disposal of any other penalty under this act, and in default of payment of such forfeiture and penalty with costs, immediately on conviction, or within such period as the court shall direct, any justice or justices may issue his or their warrant to distrain and sell the goods and chattels of the person so convicted for the amount thereof and costs, and the proceeds of any distress, after paying the forfeiture and costs and also the costs of such distress, shall be paid over to the person convicted : but if no sufficient distress shall appear or shall be found whereon to levy the said forfeiture and costs, any justice or justices may either immediately, or at any time after such conviction, com- mit any person so convicted to the common gaol or house of correction, to be imprisoned therewith or without hard labour, as to the said court shall seem meet, for any term not exceeding four calendar months, unless the amount of such forfeiture and costs, or so much thereof, as shall not have been paid previously to the commencement of such imprisonment, be sooner paid. 12. And be it enacted, that where no proof shall be given, at the Disposal of time of conviction, of the ownership of property found in the unclaimed possession of a person convicted under this act, the justices or court ^v^'i'c'h lias shall cause the property so found to be deposited in some safe place been seized, for any time not exceeding thirty days, and shall, if the property be of sufficient value to pay the expenses thereof, order an advertisement to be inserted in one-or more of the public newspapers of the town or city where or nearest the place where the same was found, and by fixing a notice on some public place, describing such property and where the same may be inspected, or in case of the said property not being of sufficient value to pay the said expenses, then by fixing such notice as aforesaid only ; and in case any person shall prove his own or his employer's ownership or property therein, upon oath, to the satis- faction of a justice, restitution of such property shall be ordered to the owner thereof, after paying the reasonable cost of removing, de- positing, advertising and giving notice of the same; but if no owner- ship be proved to such property, thejustice shall, at the termination of thirty days, order such property to be sold, and after deducting the charges aforesaid with the charges of sale, shall order the residue to be applied in the same manner as is hereafter directed for the dis- posal of any other penalty under this act. 13. And be it enacted, that it shall be lawful for the owner of any Owner of such materials as aforesaid, or any other person duly authorised by materials him, or other the person who shall have so entrusted such materials 'V^^i"lPf'^ /- • ■ -111 • 11 !• shops, &c,, from time to time as occasion shall require, to demand leave or of persons entrance and enter, at all reasonable hours in the daytime, into the employed, shops or outhouses of any person employed to work up or manufac- ture, either by himself or by any other person under him, 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 ; penalty for and in case of refusal or neglect by any such person or persons so refusal, employed to permit such entrance or inspection, such person shall, for so refusing to permit such entrance or inspection, forl'eit any sum not exceeding twenty shillings as the justices before whom he shall appear or be brought, shall think proper, to be applied in the same manner as is hereinafter directed for the disj)osal of any other jienalty under this act: provided always, that nothing herein contained shall Pf(,yjs(,_ authorize any such owner or other person as aforesaid to inspect any 453 APPENDIX. Warrant may be , pranted by justice on complaint on oath that person is about to abscond. Receiving fjoods ill fictitious name. Justice to issue warrant to constable to take pos- session of property entrusted to any person committed for emhez- zlement. &c. Recovery of wages and sums due for work. frame, tools or apparatus wherewith such materials are worked up, in case such frame, tools or apparatus comprise any new invention or improvement not disclosed to the public. 14. And be it enacted, that if any manufacturer, agent or any other person in his eiii))loyment or servii:e, shall make oath before a justice of the peace that any such materials, tools or apparatus as aforesaid, have been entrusted to any person as aforesaid, and that he has absconded, or that the deponent has just cause to suspect and does suspect that such person is about to ab- scond, it shall be lawful for such justice, and he is hereby required to issue his warrant to ajiprehend such person and bring him before him or some other justice of the peace, and if such person shall have absconded, or shall not forthwith give security, to be approved of by the said justice, for the return, in a finished state, of all such mate- rials so entrusted to him within such time as shall be then agreed on, such justice shall, by warrant, order any constable, with his assistants, to enter the house or other premises of such person and take pos- session of all such materials, tools or apparatus so delivered to him as aforesaid, and to bring the same before the said justice or any other justice, when such justice shall direct the same to be delivered to the owner or his agent or servant, or other person duly authorized by him, and shall forthwith release the person in custody ; but if all such materials, tools or apparatus shall not be found in die house or other premises or the jjossession of such person, or shall not be pro- duced before such justice, such person shall be deemed and taken to have purloined or embezzled such materials, tools or apparatus, or such part thereof as shall not be found or produced, and shall be liable to any of the punishments awarded for such otfence. 15. And be it enacted, that if any person shall receive any of the aforesaid materials in a fictitious name, in order to be manufac- tured, every such person so offending, and being convicted thereof on the oath of one or more credible witness or witnesses before two or more justices, shall, for every such ofience, be liable to the same punishment as is hereinbefore directed in respect to persons not ful- filling their engagements. 16. And be it enacted, that in cases where any person shall have been committed for purloining, embezzling or fraudulently disposing of all or any part of such materials, tools or apparatus as aforesaid which may have been entrusted to him, or shall have been convicted of any other offence against any of the provisions of this act, it shall be lawful for the justice who so committed such person or for any justice or court before whom he has been convicted for that or any other offence, and he .or they is or are hereby required to issue his or their warrant authorizing a constable, with his assistants, to enter the house and premises of such person, and take possession of all such property so entrusted as shall be found therein, and to bring the same before the said justice or court, when the said justice or court shall direct the same to bed'elivered to the manufacturer, agent or person duly authorized to receive the same. 17. And be it enacted, that if any manufacturer or other party employing, contracting or engaging with any person for any work in any of the said manufactures or connected therewith or incidental thereto or any parts, branches or processes thereof, and whether such work is to be performed by the said person or by any person or persons to be employed by or under him or by himself jointly with any person or persons to be employed with, by or under him, and whether the contractor engagement shall be to work or be employed for such manufacturer or other party exclusively or for all or part of G & 7 VICT. c. 40. 453 his time or for specific work or otherwise, and whetlier such person is to be paid according to the nature or amount of the work done, the time employed or any other manner, shall not from time to time pay and discharge all such sums of money, wages and hire as shall be justly due and payable to any such person, it shall be lawful for a justice of the peace, on complaint made for that purpose, to summon such manufacturer or other party to appear at a time and place to be named in such summons, and for any two or more jus- tices of the peace to hear and determine such complaint, and order payment of such sum as shall appear to such justices to be justly due and payable, together with costs for loss of time and recovering the same, and in default of payment immediately or within such period as the said justices shall direct, the said justices shall issue their warrant to levy the same by distress and sale of the goods and chattels of the said manufacturer or other party, and the said justices, if they shall think fit, may also, by order in writing, authorize such person to return his work unfinished, in which case such person shall not be liable to the penalties awarded by this act. 18. And be it enacted, that no frame, loom or machine, materials, Frames, &c. tools or apparatus which shall be entrusted for the purpose of being pot belong- used or worked in any of the said manufactures or any work con- J"^ *° work- 11 -1 • ■ I 11 11 "i^n not nected therewith or incidental thereto or any parts, branches or pro- liable to be cesses thereof, whether such frame, loom or machine, materials, seized for tools or apparatus shall or shall not be rented or taken by the hire, '^^".' ^"^ ''ebt shall at any time or times hereafter be distrained or seized or be workmen liable to be distrained or seized for rent or for debt or under any execution or other proceedings whatever, unless the rent be due or the money be owing by the owner of the said frame, loom or ma- chine, or of the said materials or tools or apparatus aforesaid, or of any part thereof respectively. 19. And be it enacted, that if any landlord or other person by In case of virtue of any distress, warrant, execution or other proceedings for refusal to rent in arrear or money due or alleged to be due by any person '[^^'''''s 1 1. 11 J- . • • iv ^■t ii • " 1- frames, Src, whomsoever, shall distrain, seize, carry oti, sell or otherwise dispose unlawfully of any frame, loom or machine, materials, tools or apparatus belong- seized, jus- ing to any other person which sliall have been entrusted for the pur- ''"^^ may pose of being used or worked in any of the said manufactures, or ^U^^lJ" * ^ , '' ICMUrdUOIl. any work connected therewith or incidental thereto or any parts, branches or processes thereof, and whether the same shall or shall not be rented or taken by the hire, or shall distrain, seize, carry off, sell or otiierwise dispose of any materials as aforesaid, or any tools or ap- paratus as aforesaid, belonging to any other person, and shall refuse to restore possession of all such frames, looms, machines, tools or ap- paratus to the person owning, letting or entrusting the same when demanded by him or some person duly authorized by him of the said landlord or other person or the person acting as agent or bailiff of such landlord or other person, it shall and may be lawful to and for any justice of the peace, upon complaint on oath before him, to summon the said landlord or other ])erson to apjiear before any two or more justices of the peace to answer the said complaint, and, on proof of the said offence, the said justices may thereupon order the property so seized, distrained, carried off or sold, to be forthwith restored, and issue their warrant to a constable or constables em- powering him or them to seize the said property wlierever the same shall be found, and deliver possession thereof to the person owning, letting or entrusting the same, and to levy by distress and sale of the goods of the said landlord or other person the costs of obtaining the said order and recovering and obtaining possession of the said 454 APPENDIX. Penalty for obliterating mark on machine. Power to award costs to defend- ant. Mode of pro- ceeding to enforce appearance. property ; and in case the said property cannot he found and seized within a time not exceeding twonty-onc days, to be limited in tlie said warrant, or in case the said property shall have heen daniafrpd by the same having been distrained, seized, carried off or sold, tlien it shall be lawful for such two justices or any other two justices, on proof thereof (the said landlord or other person having been first summoned by a justice) to issue their warrant to levy by distress and sale of the goods and chattels of such landlord or other person the full value of the said property or the amount of such damage as the case may be, together with all costs of recovering and levying the same. 20. And be it enacted, that if any person or persons shall oblite- rate, efface or alter the owner's name or initials, or other distin- guishing mark on any frame, loom or machine, or any bar or part thereof, or the moulds thereof, without the order or authority of the owner thereof, he shall, on conviction thereof before two justices of the peace, forfeit any such sum not exceeding two pounds as such two justices shall order and direct, to be applied in the first place in paying the costs of the proceedings before such justices, and the surplus, if any, to the party injured; and in default of payment of such forfeiture immediately on conviction or within such period as the justices so convicting shall direct, then the said justices may either immediately or at any time after such conviction commit any person so convicted to the common gaol or house of correction, there to he imprisoned with or without hard labour as to the said justices shall seem meet, for any term not exceeding two calendar months, unless the amount of such forfeiture be sooner paid. 21. And for the discouragement of frivolous and vexatious infor- mations and prosecutions under this act, be it enacted, that it shall be lawful for any justices or court of petty sessions before whom any case under this act is tried to award costs to the defendant with an allowance for his loss of time in case of acquittal, to be paid by the prosecutor, and also if it shall appear to such justices or court that the charge was made from a malicious, vexatious or frivolous motive, or in case the party shall be charged with embezzlement of materials by reason of any deficiency in the weight of the materials which he shall have returned to the person by whom they were en- trusted to such party as compared with the weight of the materials received, and it shall be proved upon tlie hearing of the case that such materials were knowingly and fraudulently delivered to the party charged whilst in a damp state, so that the apparent weight ' thereof was thereby increased, it shall be lawful for such justices or court to award to the defendant such further sum of money not ex- ceeding twenty pounds as to such justices or court shall seem fit, to be paid by such prosecutor as a compensation for the injury done; and, in default of payment, such costs and allowances and compen- sations may be levied by distress and sale of the prosecutor's goods. 22. And be it enacted, that where any person shall be charged on oatit with any offence punishable under this act, one justice may receive the original information and summon the person charged to appear before any two justices of the peace at a time and place to be named in such summons, and if he shall not appear accordingly, then the justices there present may either proceed to hear and de- termine the case ex parte, or any of such justices may issue a warrant for apprehending such person and bringing him to answer the said charge before any two or more justices, or the justice before whom the charge shall be made may, if he shall so think fit, issue such warrant in the first instance without any previous summons, and 6 & 7 YiCT. c. 40. 455 commit the person so charged to prison in order that he may be brought forward for trial (unless he enter into such bail as may be required by such justice for his appearance at such time and place as shall lie appointed), and the justices before whom the person charged shall appear or be brought shall proceed to hear and determine the case; and after adjudication all and every the subsequent proceed- Proceedings ings to enforce obedience thereto, whether respecting the penalty, for- after adju- feiture, distress, imprisonment, costs or other matter or thing relating ''"^^''""• thereto, may be enforced by any one of the said justices. 23. And be it enacted, that every simimons to be granted by a Service of justice of the peace under this act may be served by delivering a summons. copy thereof to the party, or by delivering such copy at the party's usual place of abode to some inmate thereat and explaining the purport thereof to such inmate. 24. Provided always, and be it enacted, that every complaint and Limitation prosecution under this act shall be commenced within six calendar pf time viith- inonths after the commission of the offence, unless the offending '" "hich party shall have in the mean time left the country and not otherwise, to be com-^ and that the informer or prosecutor, or any person aiding, abetting, menced. party or privy to the commission of the otfence charged, shall in every case under this act be deemed a competent witness to prove Witness. the offence. 25. And be it enacted, that in all complaints, warrants, proceed- Whatjus- ings or prosecutions under this act any justice or justices of the tices to have peace and the court of petty sessions for the county, city, borough ^^'^"' "^'^°"- or place where the offence shall be committed or the complaint arise, or where the said materials, frame, loom, machine, tools or appara- tus shall be given out or entrusted, lent or hired, or where the manu- facturer, master or employer shall carry on his trade or business, shall have full power and authority to act and to hear and determine such complaint, warrant, proceeding or prosecution, and do all other matters incident thereto : provided always, that in all convictions Proviso, or adjudications under this act one at least of the convicting or ad- judicating justices shall be a person not engaged in any manufacture, ' trade, occupation or employment .to which this act extends, and shall not be the father, son or brother of any such person. 26. And be it enacted, that all forfeitures and penalties upon con- Application victions under this act not specially provided for shall be paid to the of P^^nalties. sheriff or other proper officer of the county, city, borough or place in which such conviction shall take place for her Majesty's use, and shall be returned to the court of quarter sessions under the provisions of an act passed in the third year of the reign of his late Majesty 3 Geo. 4, King George the Fourth, intituled " An Act for the more speedy c. 46. return and levying of Fines, Penalties and Forfeitures, and Recogni- zances estreated." 27. And be it enacted, that in every case of summary conviction Scale of im- or adjudication under this act not sj)ecially provided for, where the prisonment sum forfeited or adjudged to be paid, or which shall be imposed as °" summary a penalty by any justice or justices of the peace, together with costs, ^ot speciallv if awarded, which costs such justice or justices is and are hereby provided for. authorized to award if he or they shall think fit in any proceeding, adjudication or conviction under this act, shall not be paid imme- diately, or within sucii period as the said justice or justices shall .direct, or where a warrant of distress shall be issued and no sufficient distress shall be found, it shall be lawful for the convicting justice or justices to commit the offender to the common g;*)l or liouse of cor- rection, there to be imprisoned with or without hard labour, accord- ing to the discretion of the said justice or justices, for any term not 456 APPENDIX. Form of conviction. Appeal to quarter ses- sions in cer- tain cases. exceeding two caleiular months, when the amount of the sum for- feited or adjudged to be paid, or of the penalty imposed, together with costs, shall not exceed five pounds, and for any term not ex- ceeding three calendar months in any other case, unless the amount and costs be sooner paid. 28. And be it enacted, that the justices before whom any person shall be convicted of any oilence against this act may cause the conviction to be drawn up on paper or parchment in the following form of words, or in any other form of words to the like effect, and with such variations as the case shall require ; (that is to say), ^ BE it remembered, that on tlie day of to wit. S in the year of our Lord at in the of CD. is convicted before us, A. B. and J. P., two of her Majesty's justices of the peace for the said for tliat he the said C. D. [here specify the offence, and the time and place where the same was committed, as the case may he'\, and we do adjudge tliat the said C. D. shall for the said offence for- feit and pay \_here state the penalty actually imposed, or the penalty and also the sum adjudged as the value of the articles or the amount of the injury, as the case may be'\, and also pay the sum of for costs [if so ordered^ ; and we direct that the sum of shall be paid to E. F. the party aggrieved, on the day of [instant or next ensuing], and that the sum of shall, on the day of [instant or next ensuing], be paid and applied accord- ing to the direction of the statute in such case made and provided [or as the case may /;e], and that the sum of for costs shall be paid to the complainant [if so ordered']. Given under our hands and seals the day and year first above written. 29. And be it enacted, that in all cases of summary conviction under tliis act where the sum adjudged to be paid shall exceed twenty shillings, or the imprisonment shall exceed one calendar month, any person who shall think himself aggrieved by any such conviction may appeal to the next court of general or quarter ses- sions which shall be held for the county, city, borough or place where such conviction shall \\a\e been made, (such person at the time of such conviction giving to the justices so convicting, or to the justice so presiding at the court of petty sessions at which such conviction shall take place, notice in writing of his intention to appeal and also entering into a recognizance at the time of such notice with two sufficient sureties conditioned personally to appear at the said sessions and to try such appeal, and to abide the judg- ment of the court tliereupon, and to pay such costs as shall by the court be awarded), and upon such notice being given and such re- cognizance being entered into, the justice or justices before whom the same shall be entered into slinll liberate such person if in cus- tody, and the court at such sessions shall hear and determine the matter of the appeal, and shall make such order therein with or with- out costs to either party as to the court shall seem meet, and in case of the dismissal of the appeal or the confirmation of the conviction, the said court shall order and adjudge the offender to pay such costs, if any, as shall be awarded, and.shall, if necessary, issue process for enforcing payment of the same: and it shall be lawful for t!ie said Court, or on the production of a certificate under the hand of the clerk of the peace for the said county, city, borough or' place, or his deputy, for any justice or justices of the peace for such county, city, borough or place, either immediately or at anytime thereafter to issue a warrant of distress and sale, or a warrant for the apprehension and commit- ment of such offender for such period of time as together with the 6 & 7 VICT. c. 40. 457 days during which such person so convicted shall have been im- prisoned, if any, previously to being discharged by reason of such appeal, shall amount to the same period or term of imprisonment for which such person was adjudged to be imprisoned at the time of conviction, or to issue a warrant of distress and sale, and if there be no sufficient distress a warrant of apprehension and com- mitment, as the case may require, in like manner in all respects as any justice or justices could or might have done in case no notice of appeal had been given. 30. And be it enacted, that no order or conviction, or proceedings Proceedings touching the same respectively, nor adjudication made or appeal not to be therefrom shall be quashed for want of form or be removed by cer- 1"'i*hed for tiorari or otherwise into any of her Majesty's superior courts of fo^m or re- record, and that no warrant of commitment shall be held void by moved by reason of any defect therein, provided it be therein alleged that it is certiorari. founded on a conviction, and there be a good and valid conviction to sustain the same, and that where any distress shall be made for levying any money by virtue of this act the distress itself shall not be deemed unlawful, nor the party making the same be deemed a trespasser on account of any defect or want of form in the summons, warrant, conviction, warrant of distress or other proceedings relating thereto, nor shall the party distraining be deemed a trespasser from the beginning on account of any irregularity afterwards committed by him, but the person aggrieved by such irregularity may recover full satisfaction for the special damage (if any) upon (r) an action on the case. 31. And be it enacted, that for the protection of persons acting in Limitation the execution of this act all actions and prosecutions for damage to "factions be commenced against any person tor anythmg done in pursuance persons of this act shall be laid and tried in the county where the fact was acting in or is charged to have been committed, and shall be commenced execution of within two calendar months after the fact committed, and not other- ^ *'^'" wise, and notice in writing of such action and of the cause thereof shall be given to the defendant one calendar month at least before the commencement of the action, and in any such action the de- fendant may plead the general issue,* or in case of any action of General replevin may avow generally that the goods and chattels in question '^sue. were taken under and by virtue of this said act, and may give this act and the special matter in evidence at the trial to be had there- upon, and no plaintifT shall recover in any such action if tender of Tender of sufficient amends shall have been made before such action brought, ^™*" *' nor if a sufficient sum of money shall have been paid into court after such action brought, by or on behalf of the defendant or avowant : provided always, that in all such actions of damages the plaintiff' shall be bound to establish not merely that damages have been suf- fered by him, but that the same have been wilfully and maliciously caused by the defendant or avowant. 32. And be it enacted, that nothing in this act contained shall ex- Offences tend to any person for any ofTence committed against the said here- J^gJ^iJ^Hfig inbefore recited acts, or any of them, before the passing of this act, act. but every such offender shall and may be prosecuted and punished in the same manner as if this act bad not been made. 33. And be it enacted, that nothing in this act contained shall ex- This act not tend to Scotland or Ireland or be construed to extend to repeal any s^cotland or" act or statute or part thereof now in force and not repealed by Ireland, this act (r) Sic. 458 APPENDIX. To what trades this act shall extend. Construction of terms. Commence- ment of act. Act may be amended, &c. 3't. And be it enacted, that this act shal] not extend or be con- strued to extend to any niaiiut'acture, trade, occu))ation or employ- ment, except only the manufactures (.s), trades, occupations and employments following (that is to say), the manufacture of woollen, worsted, linen, cotton, flax, mohair or silk materials in, on or by the stocking frame, warp machine or any otiier machine employed in the manufacture of framework knitted or looped fabrics, and every trade, occupation, operation or employment whatsoever connected with or incidental to the manufacture of stockings, gloves, and other articles of hosiery. 35. And be it enacted, that in all cases under this act the singular is to include the plural, and the masculine the feminine, and in an indictment or information for ofi'ences against the property of part- ners, joint stock companies or trustees, it shall be sufficient to lay the ownership in the name of one partner or trustee and another or others ; that the words " woollen, worsted, linen, cotton, flax, mohair or silk materials," shall be construed to extend to any of the said mate- rials mixed with each other or with any other material or materials, and that the words " manufacture" and " work" shall extend to all trades, occupations, operations and employments whatsoever con- nected with or incidental to the manufacture of any of the said materials or any parts, branches or processes thereof, and likewise to such materials whether the same or any part thereof be or he not, in the whole or in part, first wrought, made up or manufactured, or converted into merchantable wares. 3G. And be it enacted, that this act shall commence on the first day of August, one thousand eight hundred and forty-three. 37. And be it enacted, that this act may be amended or repealed by any act to be passed in this present session of parliament. 7 & 8 Vict. c. 15. An Act to amend the Laws relating to Labour in Factories (i). . [6th June, 1844.] Whereas the laws relating to labour in factories require to be amended: be it enacted by the Queen's most excellent Majesty, by (s) See R.y. Button, 11 Q. B. 941. {t) See also 10 & 11 Vict. c. 29; 13 & 14 Vict. c. 54, post ; 16 & 17 Vict. c. 104, jooi^• 19 & 20 Vict. c. 38, post. By 9 & 10 Vict. c. 40, alter reciting 3 & 4 Will. 4, c. 103, and 7 & 8 Vict. c. 15, and that the said acts had been construed to apply to rope- works ; and it is expedient to re- lieve ropemakers from the efTect cf such construction and of the said acts : it is declared and en- acted, " that no ropery, ropewalk or ropework, 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, but only for laying or twisting or other process of preparing or finishing the lines, twines, cords or ropes, and which has no in- ternal communication with any buildings or premises forming or forming part of a mill or factory within the meaning of the said acts, except such as is necessary for the transmission of power, shall be deemed to be a mill or factory within the provisions of the said acts or of either of them, and that nothing in the said acts or in either of them shall be deemed to apply to the employ- ment of children, young persons or women in any such ropery, ropewalk or ropework." 7 & 8 VICT. c. 15. 459 and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the Commpnce- authority of the same, that this act shall take effect from and after ™s"' °^ '"^'• the first day of October, in the year one thousand eight hundred and forty-four, except any provisions for the taking effect of which any other time shall be hereinafter specially limited, all uhicli last men- tioned provisions shall take effect from and after such time as shall be hereinafter specially mentioned in that behalf. 2. And belt enacted, that after the passing of this act no inspector Restriction of factories shall have power in that capacity to act as a magistrate, ?" power of or to make rules, regulations and orders, as authorized by an act, ''^^^^ ^^^_ hereinafter called " the Factory Act," passed in the fourth year of inspectors, the reign of his late Majesty, and intituled " An Act to regulate the 3 & 4 wni. 4 Labour of Children and young Persons in the Mills and Factories of c. 103. the United Kingdom," except as hereinafter mentioned; and that Their ex- no inspector or person appointed to superintend tlie execution of emption the provisions of the Factory Act and of this act under the direction ^"^"'y f^^rtam of an inspector, hereinafter called a sub-inspector, shall be liable to serve upon any jury, or to serve any ])arochial or municipal office, so long as he shall continue to hold the office of inspector or sub- inspector. 3. And be it enacted, that every inspector and sub-inspector shall Power of have power to enter every part of any factory at any time, by day inspectors or by night, when any person shall be employed therein, and to enter inspectors. by day any place which he shall have reason to believe to be a factory, and to enter any school in which children employed in fac- tories are educated, and at all times to take with him into any factory the certifying surgeon of the district hereinafter mentioned, and any constable or other peace officer whom he may need to assist him, and shall have power to examine, either alone or in t'le presence of any other person, as he shall think fit, every person whom he shall find in a factory or in such a school, or whom he sliall have reason to believe to be or to have been employed in a factory within two months next preceding the time when he shall require him to be examined touching any matter within the provisions of this act, and the inspector or sub-inspector may, if he shall see fit, require such person to make and sign a declaration of the truth of the matters respecting which he shall have been or shall be so examined ; and every inspector and sub-inspector shall have power to examine the registers, certificates, notices and other documents, kept in pur- suance of this act; and every person who shall refuse to be examined as aforesaid, or who shall refuse to sign his name or affix his mark to a declaration of the truth of the matters respecting which he shall have been examined, or who shall in any manner attempt to conceal or otherwise prevent any child or other person from appearing before or being examined by an inspector or sub-inspector, or who shall prevent or knowingly delay the admission of an inspector or sub- inspector to any part of a factory or school, or sliall prevent an in- spector or sub-inspector from examining any register, certificate, notice or other document kept in pursuance of this act, shall be deemed guilty of wilfully obstructing the inspector or sub-inspector in the execution of the powers entrusted to him. 4. And be it enacted, that the provisions of an act passed in the Protection , ,. , • /• V • r^ .! o 1 • »•• I I "1 nispectors twenty- fourth year of the reign of King George the bccond, intitulecl .j,,,, j^|j,,_ " An Act for the rendering Justices of the Peace more safe in the inspectors. Execution of their Office, and for indemnifying Constables and 24 Geo. 2, others acting in obedience to their Warrants," as amended by any c. 44. subsequent act, so far as they relate to rendering justices of the peace x2 4G0 APPENDIX. Office of factory inspectors. Management of the office, and regu- lating tlie duties of the inspectors, Persons be- ginning to occupy a factory to send notice to the Office of Factory Inspectors. Certifying surgeons to be appointed by an in- spector. Form of sur- gical certifi- cate. more safe in the execution of their office, shall extend to protect the inspectors and sub-inspectors in the exercise of their duties under this act. 5. And be it enacted, that a proper office, to be called " The Office of the Factory Inspectors," shall be provided in London or Westminster for the use of the inspectors, and for the preservation of the factory records and all documents relating to the several j)roceedings under this act; and one of her Majesty's principal Secretaries of State shall appoint from time to time such clerks and servants as may be deemed necessary to carry on the business of the said office, and may at pleasure remove them or any of them ; and the Commissioners of her Majesty's Treasury of the United King- dom of Great Britain and Ireland shall fix the salaries of the clerks and servants in fit proportion according to the duties they may have to perform. 6. And be it enacted, that one of her Majesty's principal Secre- taries of State, or the inspectors, with the approval of such principal Secretary, from time to time may make regulations for the manage- ment of the said office, and for regulating the duties of the several insj)ectors and sub-inspectors, and of the clerks and servants of the said office, in the execution of this act, so that they be not contrary to the provisions herein contained ; and the regulations so made and approved shall be binding on the said inspectors and sub-inspectors, clerks and servants respectively. 7. And be it enacted, that after the passing of this act every person, on beginning to occupy a factory, shall within one month send, addressed "To the OHiceof the Factory Inspectors, London," a written notice, containing the name of the factory, the place, township, parish and county where it is situated, the post office to which he desires his letters to be addressed, the nature of the work, the nature and amount of the moving power, and the name of the firm under which the business of the factory is to be carried on. 8. And be it enacted, that after the passing of this act any insjiector shall have power to appoint a sutticient number of persons practising surgery or medicine to be certifying surgeons, for the purpose of examining persons who shall be brought before them to obtain the surgical certificates of age required 1 y the Factory Act and by this act, and of givii-.g the said certificates, and shall from time to time make regulations for their guidance, and shall in every such appointment specify the factories or district for which each surgeon is appointed, and may from time to time annul any such appointment, and in like manner make another or others ; but every appointment of a certifying surgeon, and every order annulling such appointment, may be revoked by the Secretary of State, on appeal made to him for either purpose ; and the inspector of. the district shall make known the name of the certifying surgeons so from time to time appointed or discontinued to the occupiers of the factories in that district in such manner as to him shall seem fit ; but no surgeon, being the occupier of a factory, or having a beneficial interest in any factory, shall be a certifying surgeon. 9. And be it enacted, that the certificates of age required by the Factory Act or by this act, herein called surgical certificates, shall be given according to the form and directions contained in the Schedule (A.) annexed to this act; and the certificates given by any such certifying surgeon shall be as valid as if counteisigned by an inspector, justice of the peace or burgh magistrate ; and the name of every person for whom a certificate of age is required by the Factory Act or by this act, and the date of the first day of employment or 7 & 8 VICT. c. 15. 461 re-employment of such person shall be registered in the form and according to the directions given in the Schedule (B. ) annexed to this act, before it shall be lawful to employ such person in a factory : provided always, that no surgical certificate shall be required for any young person above the age of sixteen years. 10. And be it enacted, that no such surgical certificate given by Certificates any person who is not an appointed certifying surgeon shall be of "'•' ?P'.^" ^y any force, unless it is given by a person duly authorized by an surgeon"^ university or college, or other public body having authority in that must be by behalf, to practise surgery or medicine, and countersigned, ac- persons duly- cording to the form and directions given in the Schedule (A.) to this authorized, find coun- act annexed, by some justice of the peace, not being the occupier of tersio-ned bv a factory, and not being the father, son or brother of the occupier of a magistrate. a factory ; and no person shall countersign any such surgical cer- tificate in the absence of the person named therein, or without proof that the person brought before him is the same to whom the cer- tificate was granted. 11. And be it enacted, that no person shall grant any surgical Surgical certificate required by ti e Factory Act or by this act, except upon certificates „ 1 • ^- J? .1 J »i " • J ^T • to be given personal mspection oi the person named therein ; and no certifying ^^ the fac- surgeon shall examine any person for the purposes of this act, or tory. sign or issue any such surgical certificate, elsewhere than at the factory where such person is to be employed, unless for special cause, to be allowed by an inspector ; and if a certifying surgeon shall refuse to grant a certificate of age for any person presented to him for such examination, he shall give, when required, instead of such certificate, a paper specifying under his hand the reasons for such refusal, in the form and directions given in the Schedule (A.) to this act annexed. 12. And be it enacted, that if the occupier of a factory shall Agreement agree in writing with the certifying surgeon of a district for the occup^rand payment to be made by the occupier of the factory to the certi- certifying fying surgeon for the examination of persons for whom surgical surgeon, certificates are required by the Factory Act or by this act, and if the terms of such agreement shall be in conformity with such regulations for the guidance of the surgeons as shall be made by the inspector of the district, and shall be countersigned by the inspector in token of such conformity, all penalties which may be incurred by any party for breach of such agreement may be recovered as other penalties under this act may be recovered, and shall be applied as other penalties under this act are directed to be applied, and no such agreement shall be liable to any stamp duty. 13. And be it enacted, that an inspector shall fix the amount of Inspector fees to be paid by the occupier of a factory, and t!ie times when such '^^y ^^ ^"''" fees shall be paid to the certifying surgeon, and also the times when ^*^°" ^ '^^^' such certifying surgeon shall visit a factory, provided he shall be re- quired to fix such fees and visits by the occupier of a factory ; and tlie fees so to be fixed by the inspector shall not in any case where the surgeon shall examine more than one person exceed one shilling for each person who shall be presented to him at the factory by the mill owner or his agent to be examined, together with sixpence for every half mile that the distance of the factory from the residence of such surgeon shall exceed one mile ; and such fees, including mileage, shall not.be less than one shilling and shall in no case exceed five shillings for any one visit, except when upon such visit the certifying surgeon shall examine for the said certificates of age more than ten persons who may be brought before him as aforesaid, in wliich case 463 APPENDIX. New sur- gical certi- ficate not required for persons at present em- ployed. Inspectors and sub- inspectors may annul certificates. Certificates of real age may be obtained. he shall receive sixpence for each person that he may so examine, instead of all other fees; and in any case where a factory is situated within the distance of one mile from the residence of a certifying surgeon the fee for such factory shall not exceed two shillings and sixpence for each visit, except when at any one visit he shall examine for tlie said certificates of age more than five persons who may be brought before him as aforesaid, in which case he shall receive six- pence for each person that he may so examine, instead of all other fees ; and no certifying surgeon shall receive more than sixpence for any certificate which lie may be allowed by an inspector, as hereinbefore provided, to sign or issue otherwise than at the iactory where the person is to be employed ; and the occupier of any factory shall pay such fees to the certifying surgeon at the time of signing such cer- tificates, or at any other time when he may be directed by the inspector to do so ; and the occupier of such factory may deduct the fee or any part thereof, not exceeding in any one case the sum of three-pence, from tlie wages of tlie person for whom the certificate may have been granted ; but in any case where such agreement as aforesaid has been executed between an occupier of a factory and the certifying surgeon the amount named in such agreement shall be instead of the fees fixed by any inspector in virtue of this act : pro- vided always, that no certifying surgeon shall be required to visit any factory situated within three miles of his residence oltener than once in each week, or to visit any factory situated at a greater distance than three miles oftener than once in every fortnight, unless with the consent of the occupier of the factory. H. And be it enacted, that no person who shall be employed in a factory at the time when this act shall come into force, under a sur- gical certificate granted under the Factory Act, shall be required to have a new surgical certificate, in the form and manner provided by this act, so long as he shall continue in the same factory ; but every inspector and sub-inspector may annul any surgical certificate granted under this act, and any surgical certificate granted before the passing of this act, by writing across the surgical certificate the word " an- nulled," with his name, and the date of annulling such certificate ; provided that in either case he shall have reason to believe the real age of the person mentioned therein to he less than that mentioned in the certificate, or provided the certifying surgeon of the dis- trict shall, upon reference made to him, deem such person to be then of deficient health or strength, or by disease or bodily infirmity in- capacitated for labour, or liable tn be injured by continued employ- ment : and no certificate so annulled shall be valid in respect of the person named therein for the purposes of this act from the day when the certificate shall have been so annulled ; and the production of the certificate shall be evidence that the certificate wa& annulled on the day so stated. 15. And be it enacted, that in case any person shall be desirous of proving the real age of any person for whom a certifying surgeon shall have refused to grant a certificate of age for the purposes of this act, or whose surgical certificate any inspector or sub-inspector shall have annulled, the inspector or sub-inspector shall, on demand, give to such person a requisition under his hand, in a form to be approved of by the inspectors and by the registrar general, for the production of a duly certified copy of the entry of the birth or baptism of such person, provided the party demanding the same shall declare the names of such person and of his parents, with the place where and the year in which he was born or baptized, which particulars shall be set forth in the requisition; and every party to whom such requisi- 7 & 8 VICT. c. 15. 4G3 tion shall have been given shall be entitled, upon payment of one shilling, to receive, on personal application, or on application in writing, in such form and under such regulations as shall be approved of by the inspectors and registrar general, from any minister, registrar or other person having the care of any register of births or baptisms in which the birth or baptism of such person is entered, a duly certi- fied copy of the entry in such register, which shall be indorsed on the aforesaid requisition, and shall be signed by the minister, registrar, or other person having charge of such register ; and such payment of one shilling shall be instead of all other fees or payments to which such minister, registrar or other person shall be entitled ; and if the said certified copy, proving the age of the person named therein to be such as to entitle him to have the surgical certificate required, shall be produced to the certifying surgeon of the district, he shall examine the same, and if it shall appear to him that the said certified copy has not been altered or falsified in any manner, the certifying surgeon shall thereupon, without further fee or reward, give a surgical certi- ficate in the form provided for tliat case in Schedule (A.) to this act annexed, and shall write the word " Examined " upon the certified copy of the entry of the birth or baptism which he shall have received, with his signature, and the date of such signature, and shall send such certified co))y by the post to the sub-inspector of the district, who shall send a receipt for the same by post to the said surgeon, and shall keep such certified copy of the entry of the birth or bap- tism, for future reference, if necessary ; and if any inspector of factories shall require a certified copy of the entry of the birth of any person employed in any fiictory from the office of the registrar general, he, or any person deputed by him, shall, on producing a requisition in the form hereinbefore provided, be entitled to examine the indexes to the registers in the general register office, and to receive such certified copy indorsed on the requisition without the payment of any fee; but no certified copy of the entry of any birth or baptism issued in consequence of any such requisition hereinbefore provided shall be admissible in evidence in any court or for any pur- pose, save for the purposes of this act : provided always, that in those cases in which a surgical certificate shall have been refused or an- nulled in consequence of deficient health or strength, or by reason of disease or bodily infirmity, the inspector or sub-inspector shall not sign the requisition hereinbefore mentioned, and such person shall not be employed on proof of real age only. 16. And be it enacted, that before employing any person requiring Certificate a surgical certificate under the Factory Act as amended by this act, to.b<^ "''- the occupier of the factory shall obtain the surgical certificate, save If/^person is as hereinafter excepted, and shall keep, and be bound to produce employed, every such certificate, when required, to the inspector or sub-inspec- and to serve tor ; and no surgical certificate shall be valid except for employ- °"^y '"'' "^"^ ment at the factory for which it was originally granted, or, if granted by a certifying surgeon, at any other factory in the occupation of the same person who is occupier of the factory for which tlie certificate was originally granted, provided such other factory be in the district of the certifying surgeon who granted the certificate, and the certi- ficate be produced in the factory where the person named in the certificate is at work ; and the certifying surgeon, as often as he shall visit a factory for the purpose of granting certificates, shall enter in the register of workers tlie date of his visit, and the other particulars set forth in the form and according to the directions given in Schedule (B.) to this act annexed. 464 APPENDIX. Surgical certificates may be dis- pensed witli for seven or thirteen days. Limewash- in^-and otlier wasliinir of tlie interior of factories. Protection of worliers in wet- spinning flax mills. Mill-gearing n(it to be cleaned while in motion. Machinery to be guard- ed. 17. Provided always, and be it enacted, that no occupier of any factory shall be liable to any penalty for employing any person in any manner not contrary to the other provisions of the Factory Act as amended by this act, without a surgical certificate, for any time not exceeding seven working days, or, when the certifying surgeon shall reside more than three miles from the factory, for any time not exceeding thirteen working days, provided all surgical certificates for that factory be granted only by the certifying surgeon appointed for that factory ; but this enactment shall not be construed to dis- pense with the certificate of school attendance, or to authorize the employment of any person in respect of whom the certifying surgeon shall have refused to grant such surgical certificate. 18. And be it enacted, that after the passing of this act it shall not be necessary to limewash the walls of any mill, factory or build- ing, or to whitewash the ceilings of any rooms therein, otherwise than is hereinafter ])rovided ; and that all the inside walls, ceilings or tops of rooms, whether plastered or not, and all the passages and staircases of every factory, which shall not have been painted with oil once at least within seven years, shall be limewashed once at least within every successive period of fourteen months, to date from the period when last whitewashed ; and all the inside walls and ceilings or tops of rooms in which children or young persons are employed, and which are painted with oil, shall be washed with hot water and soap once at least within every successive period of fourteen months, as aforesaid. 19. And be it enacted, that after the expiration of six months from the date of this act coming into operation no child or young person shall be employed in any part of a factory in which the wet- spinning of flax, hemp, jute or tow is carried on, unless sufficient means shall be employed and continued for protecting the workers from being wetted, and, where hot water is used, for preventing the escape of steam into the room occupied by the workers. 20. And be it enacted, that no child or young person shall be allowed to clean any part of the mill-gearing in a factory while the same is in motion for the purpose of propelling any part of the manufacturing machinery ; and no child or young person shall be allowed to work between the fixed and traversing part of any self- acting machine while the latter is in motion by the action of the steam engine, water-wheel or other mechanical power. 21. And be it enacted, that every fly-wheel directly connected with the steam engine or water-wheel or other mechanical power, whether in the engine house or not, and every part of a steam engine and water-wheel, and every hoist or teagle, near to which children or young persons (u) are liable to pass or be employed, and all parts (m) In Coe V. Platf, 2 L. M. & P. 488 ; S. C. 6 Exc. 752, it was held that the subsequent part of this section is not confined to children and young persons, or even to persons employed in the factory. And it also held, that a declaration in an action brought for injuries sustained in conse- quence of non-compliance with this section, must show that the shaft was in motion for some ma- nufacturing process ; and as the declaration in that case did not do so, judgment was arrested. This decision was upheld in the Exchequer Chamber, 7 Exc. 460. Thereupon the declaration was amended and the case tried again before Alderson, B., at the Liver- pool Spring Assizes, 1852. The evidence showed, that the shaft on the ground floor of the building was in motion, and ivas in use for the purpose of working the machinery, but the shaft in the 7 & 8 VICT. c. 15. 465 of the mill-gearing in a factory, shall be securely fenced; and every wheel-race not otherwise secured shall be fenced close to the edge of the wheel-race; and the said protection to each part shall not be re- moved while the parts required to be fenced are in motion by the action of the steam engine, water-wheel or other mechanical power for any manufactuii'ig process (x). 22. And be it enacted, that if any accident shall occur in a factory Notice to which shall cause any bodily injury to any person employed therein ^^ given of which shall have been of such a nature as to prevent the person so causing injured from returning to his work in the factory before nine of the bodily clock of the following morning, the occupier of the factory, or in injury, his absence his principal agent, shall within twenty-four hours of such absence send a notice thereof in writing to the surgeon ap- pointed to grant certificates of age for the district in which the factory is situated, in which notice the place of residence of the per- son injured, or the place to which he may have been removed, shall be stated ; and the surgeon shall send a copy of such notice to the sub-inspector of the district by the first post after the receipt thereof. 23. And be it enacted, that if a certifying surgeon shall receive Certifying notice as aforesaid that an accident has occurred which has caused surgeon to bodily injury to any person employed in a factory for which he has jj,(o jj,g been appointed to grant certificates of age, and that it has been of causes and such a nature as to have prevented the person so injured from return- extent of iiig to his work in the factory the following morning, he shall with ^nd report the least possible delay proceed to the said factory, and make a full tliereon investigation as to the nature and cause of such bodily injury, and shall within the next twenty-four hours send to the inspector of the district a report thereof, a copy of whicli report, together with any other information which he may receive respecting the said accident, the inspector of the district shall send to the office of the factory in- spectors as soon as conveniently may be; and the certifying surgeon, for the purpose of such investigations only, shall have the same power, authority and protection as an inspector, and shall also have power to enter any room in any building to which the injured person may have been removed; and for such investigation the said surgeon shall receive a fee not exceeding ten shillings, or such part thereof, not being less than three shillings, as the inspector of the district may consider a reasonable remuneration to the surgeon for his trouble, which fee shall be paid as other expenses incurred under this act. 24. And be it enacted, that one of her Majesty's principal Secre- Prosecution taries of State, on the report and recommendation of an inspector, ^°^"'"?Pf"" ' . •■ -. . ' , sdiion oy all may empower such inspector to direct one or more actions to be inspector. upper floor, and by which the acci- damages, directed a verdict to detit was occasioned was not in use be entered for the defendant ; for that purpose, although in giving the plaintiff leave to move motion, from the difficulty of to enter the verdict for her for disconnecting it from the main the amount found by the jury, shaft. It was contended, that But the rule granted for that the upper shaft formvd a portion purpose was discharged, 7 Exc. of the lower; and that, therefore, 923. See also Cnswc// v. Worth, at the time of the accident, it 5 E. & B.849; Doelv. Sheppard, was in motion for the purpose of -5 E. & B. 8.56. In consequence working machinery within this of which, 19 & 20 Vict. c. 38, section ; Alderson, B., however, post, was ])assed. intimated a contrary opinion, (.r) Ibid. and, the jury having assessed X5 466 APPENDIX. Application of compen- sation when recovered. For ensuring regularity in the observ- ance of time. Registers to be kept in every fac- tory. An abstract of this act, and certain notices, to be hung up in every factory. brought in the name and on behalf of any person who shall be re- ported by such inspector to have received any bodily injury from the machinery (//) of any factory, for the recovery of damages for and on behalf of such person (z). 25. And be it enacted, that any damages which shall be recovered in any action so directed to be brought shall be paid, as soon after they are received as conveniently may be, to the person in whose behalf they have been recovered, or shall be otherwise settled for the use and benefit of the said person in such manner as shall be ap- proved of by the Secretary of State ; and in case a verdict shall be found for the defendant, or judgment shall be recovered against the plaintitf, or the plaintitf shall be nonsuited, the defetidant shall have the like remedies for his costs against the inspector as he might have had against the plaintiff; and all charges and expenses incurred in bringing any such action, beyond what are recovered from the de- fendant, and not otherwise provided for, shall be paid as other expenses incurred under this act are to be paid. 2(1. And be it enacted, that the hours of the work of children and young persons in every factory shall be reckoned from the time when any child or young person shall first begin to work in the morning in such factory (a), and shall be regulated by a public clock, or by some other clock open to the public view, to be approved of in either case in writing under the hand of the inspector or sub-inspector of the district. 27. And be it enacted, that registers shall be kept in the factory to which they relate, by the occupier of every factory, according to the forms and directions given in Schedule (B.) to this act annexed ; and every inspector shall have power to require such occupier to send to him, in such manner as may be directed in tlie requisition, any extracts from such registers, and any other information with relation to the persons employed in the factory, which may be requi- site to facilitate the performance of the duties of such inspector in any inquiry made under the authority of the Factory Act or of this act ; but no information so sent by the occupier of any factory which is not contained in the registers, certificates and other documents required by this act to be received or kept shall be admissible in evidence in any proceeding against him for the recovery of any penalty ; and the registers, certificates and other documents required by this act to be received or kept shall be forthwith produced to the inspector or sub- inspector, on his demanding to examine the same, at any time when the factory is at work. 28. And be it enacted, that it shall not be necessary to hang up in any mill or factory any copy of any abstract of the Factory Act, or of any regulations made in pursuance of the said act, other than is hereinafter provided; and that such abstract of the Factory Act as amended by this act as shall be directed by one of her Ma- jesty's principal secretaries of state shall be fixed on a moveable board, and be hung up as soon as received by the occupier of the factory or his agent in the entrance of the factory, and in such other places as the inspector or sub-inspector of the district may direct ; and notices of the names and addresses of the inspector and sub- inspector of the district in which the factory is situated, of the name (y) See 19 & 20 Vict c. 38, s. 5, post. {z) The provisions in this and the following section do not take away the right of the party in- jured to sue for damages, Caswell V. Worth, 5 E. & B. 849 ; S. C. 25 L. J., Q. B. 121. (o) See further 10 & 11 Vict, c. 29 ; 13 & 14 Vict. c. 54, post. 7 & 8 VICT. c. 15. 467 and address of the surgeon who grants certificates of age for the factory, of the clock by which the hours of work in the factory are regulated, of the times of beginning and ending daily work of all persons employed in the factory, and any alteration thereof, of the times of the day and amount of time allowed for their several meals, of all time lost which is intended to be recovered, and of all time which shall be recovered, together with every other notice required by this act, written or printed in legible characters, and fixed on moveable boards, (each particular notice being signed by the oc- cupier of every factory or his agent,) shall be hung up in the entrance of the factory, where they may be easily read by the persons em- ployed in the factory, and in such other places as the inspector or sub-inspector of the district may direct, and whence they shall not be removed while the factory is at work ; and in case any such abstract of the Factory Act as amended by this act, or notice, shall become illegible in any part, the occupier of the factory shall cause a new copy thereof to be provided and hung up as aforesaid ; but the notice of lost time need not remain after the whole of the lost time intended to be recovered shall have been recovered ; and every notice required to be hung up shall be in the forms and ac- cording to the directions given in the Schedule (C.) hereunto annexed (6). 29. And be it enacted, that every child who shall have com- Children pleted his eiglith year, and shall have obtained the surgical certifi- "i^y be em- cate required by this act of having completed his eighth year, may faefg^ries^at be employed in a factory in the same manner and under the same eight years regulations as children who have completed their ninth year; of age. but no child under eight years of age shall be employed in any factory, 30. And be it enacted, that no child shall be employed in any Time of factory more than six hours and thirty minutes in any one day, save children's as hereinafter excepted, unless the dinner time of the young persons in such factory shall begin at one of the clock, in which case chil- dren beginning to work in the morning may work for seven hours in one day ; and no child who shall have been employed in a factory before noon of any day shall be employed in the same or any other factory, either for the purpose of recovering lost time or otherwise, after one of the clock in the afternoon of the same day, save in the cases when children may work on alternate days, or in silk factories more than seven hours in any one day, as hereinafter provided (c). 31. And be it enacted, that in any factory in which the labour of Howchil- young persons is restricted to ten hours in any one dav it shall be ^^f", ™^j J, I'l 1 I'll 1 • 1 'i 1 cllipiuvcu Oil lawtul to employ any child ten hours in any one day on three alter- three alter- nate days of every week, provided that such child shall not be em- nate days of ployed in any manner in the same or in any other factory on two ^^^ week, successive days, nor after half-past four of the clock in the afternoon of any Saturday : provided always, that the parent or person having direct benefit from the wages of any child so employed shall cause such child to attend some school for at least five hours between the hours of eight of the clock in the morning and six of the clock in the afternoon of the same day on each week day preceding each day of employment in the factory, unless such preceding day shall be a Saturday, when no school attendance of such child shall be required : (b) See Ryder v. Mills, 3 Exc. (c) Ryder v. Mills, 3 Exc. 853 ; 853 ; but see now 13 & H Vict, and infra, note(d). See also 16 c. 54, s. 2. & 17 Vict. c. 101, post. 468 APPENDIX. as young persons provided also, that on Monday in every week after that in which such child began to work in the factory, or any other day appointed for that purpose by the inspector of the district, the occupier of the factory shall obtain a certificate from a schoolmaster, according to the form and directions given in the schedule (A.) to this act annexed, that such child has attended school as required by this act ; but it shall not be lawful to employ any child in a factory more than seven hours in any one day, until the owner of the factory shall have sent a notice in writing to the inspector of the district of his intention to restrict the hours of labour of young persons in the factory to ten hours a day, and to employ children ten hours a day; and if such occupier of a factory shall at any time cease so to employ children ten hours a day he shall not again employ any child in his factory more than seven hours in any one day until he shall have sent a further notice to the inspector in the manner hereinbefore provided. Women to 32. And be it enacted, that no female above the age of eighteen be employed years shall be employed in any factory save for the same time and in "° ""'""' the same manner as young persons may be employed in factories (rf) ; and that any person who shall be convicted of employing a female above the age of eighteen years for any longer time or in any other manner shall for every such offence be adjudged to pay the same penalty as is provided in the like case for employing a young person contrary to law : provided always, that nothing herein or in the Fac- tory Act contained as to certificates of age shall be taken to apply to females above the age of eighteen years. 33. And be it enacted, that no time lost by accident or otherwise in any factory shall be made good or worked up by extension of ordinary hours of labour, save as is hereinafter provided ; and that in any factory in which any part of the machinery is moved by the power of water the time which shall have been lost by stoppages from want of water, or from too much water, may be recovered in manner following, within six months next after the stoppage, be- tween the hours specified in the Factory Act as those within which time lost by drought or excess of water may be recovered ; and in order to recover time so lost any child or young person may be employed one hour in each day more than the time to which the ordinary daily labour of children and young persons respectively is restricted by law, except on Saturday ; but it shall ni t be lawful so to recover any lost time until a notice shall have been sent by post to the sub-inspector of the district in which the factory is situated, stating the intention so to recover time that has been lost, nor unless a notice according to the form and directions given in the schedule (C.) to this act annexed shall have been previously fixed up in the entrance of the factory, and in suth other places as an inspector or sub-inspector may direct ; and such notice shall be kept so fixed up during the whole time while the lost time is in course of being reco- vered ; and such notice shall be kept in a book as directed in the said schedule (C.) ; nor shall lost time be so recovered on two suc- cessive days, unless the amount of time recovered on any one day shall be inserted before nine of the clock in the morning of the follow- ing day in the last mentioned notice. 34. And be it enacted, that in any factory in which any part of the machinery is moved by the power of water, when the stream is bv^DMtfal * ^'^ diminished by drought or swollen by flood during any part of the stoppages. day that any part of the manufacturing machinery driven by the Provision for recover- ing lost time by stoppage of the ma- chinery. Provision' for recover- {d) See further, 10 & 11 Vict. c. 29 ; 13 & 14 Vict. c. 54, post. 7 & 8 VICT. c. 15. 469 water-wheel has been stopped by reason of such drought or flood, the young persons who would have been employed at such machi- nery may recover such lost time during the night next following the said day, unless the said day be Saturday : provided always, that no such young person shall be employed during any twenty-four consecutive hours for a greater number of hours than that to which the ordinary daily labour of such young persons in factories is other- wise restricted by law; and that no young person so employed in the night shall work more than five hours, without an entire cessation from work of at least thirty minutes; but it shall not be lawful to recover any such lost time unless a notice according to the form and directions given in the Schedule (C.) to this act annexed shall have been previously fixed up in the entrance of the factory, and in such other places as an inspector or sub-inspector may direct, and unless such notice be kept so fixed up during the whole time while the lost time is in course of being recovered; and such notice shall be kept in a book as directed in the said Sche- dule (C.)(e). 3.5. And be it enacted, that no child or young person shall be Work to employed in a factory, either to recover lost time or for any other cease on purpose, on any Saturday after half-past four of the clock in the ija'f.past * afternoon. four. 36. And be it enacted, that the times allowed for meal times as Additional provided by the Factory Act sliall be taken between the hours of regulations half-past seven in the morning and half-past seven in the evening of ^.^ to meal every day, and one hour thereof at the least shall be given, either t'™^'* the whole at one time or at different times, before three of the clock in the afternoon ; and no child or young person shall be employed more than five hours before one of the clock in the afternoon of any day without an interval for meal time of at least thirty minutes; and during any meal time which shall form any part of the hour and a half allowed for meals no child or young person shall be employed or allowed to remain in any room in which any manufacturing pro- cess is then carried on ; and all the young persons employed in a factory shall have the time for meals at the same period of the day, unless some alteration for special cause shall be allowed in writing by an inspector (/). 37. And be it enacted, that each of the half holidays required by Additional the Factory Act to be given shall comprise not less than one half of regulations the day, and during such time no young person shall be employed in ^^ ° ° '' the factory ; and that at least four of such half holidays shall be given between the fifteenth day of March and the first day of October in each year to every young person who shall be employed in the fac- tory during the whole of such period ; but no cessation from work shall be deemed a half holiday, unless notice of such half holiday, and of the time of such cessation from work, shall have been fixed up on the preceding day in the entrance of the factory, and in any other place that the inspector or sub-inspector may direct ; and that in addition to such eight half days no child or young person shall be allowed to work in any factory on Christmas Day or Good Friday, in England or Ireland ; and in Scotland no child or young person shall be allowed to work on any day the whole of which is set apart by the Church of Scotland for the observance of the sacramental fast in the parish in which the factory is situated. (e) See 13 & 14 Vict. c. 54, s. 8.53; 13 & 14 Vict. c. 54,po«<; 5, poU. 16 & 17 Vict. c. \.Oi,post. (/) Ryder v. Mills, 3 Exc. 470 APPENDIX. Additional refjulations for the at- tendance of children at school. Occupier of factory to obtain school certificate, and to pay school fees. Inspector may, by notice, annul the certificate of any school- master found unfit. 38. And be it enacted, that, save as herein otherwise provided, the yjarent or jierson having any direct benefit from the wages of any child employed in a factory siiall cause such child to attend some school on the day after the first employment of such child, and thenceforth on each working day of every week during any ])art of which the said child shall continue in such employment; so that on every such day, except in the cases hereinafter provided, such child shall attend school during at least three hours after tlie hour of eight of the clock in the morning and before the hour of six of the clock in the evening : provided always, that any child attending school after one of the clock in the afternoon shall not be required to remain in school more than two hours and a half on any one day between the first day of November and the last day of February, and no child, shall be required to attend school on any Saturday, and the non- attendance of every such child shall be excused on every day on which such child shall be certified by the schoolmaster to have been prevented by sickness or other unavoidable cause from attending the school, and during any holiday or half holiday authorized by this act, or by consent in writing of the inspector of the district in which the factory is situated, or where the school-room is situated within the outer boundary of the factory at which such child is employed, on every day on which the school shall be closed in consequence of the said factory ceasing to be at work during the whole day. 39. And be it enacted, that no schoolmaster's tickets or vouchers shall be required or valid other than is hereinafter provided, and that the occupier of every factory in which a child is employed shall on Monday in every week after the first week in which such child began to work in the factory, or on any other day appointed for that purpose by an inspector, obtain a certificate from a schoolmaster, according to the form and directions given in the Schedule (A.) to this act annexed, that such child lias attended school as required by this act during the foregone week ; and such occupier shall keep such certificate for six months after the date thereof, and shall pro- duce the same to any inspector or sub-inspector when required during such period, and shall, when required by the inspector for the district, pay to the schoolmaster of such child, or to such other person as tlie said inspector may direct, towards the expenses of educating such child, such sum as the inspector may require, not exceeding two-pence per week, and shall be entitled to deduct from the wages payable to such child any such sum as he shall have been required to pay for such expenses, not exceeding the rate of one- twelfth part of the weekly wages of such child : provided always, that if an inspector, on his personal examination, or on the report of a sub-inspector, shall be of opinion that any schoolmaster who grants certificates of the school attendance of children employed in a factory is unfit to instruct children, by reason of his incapacity to teach them to read and write, from his gross ignorance, or from his not having the hooks and materials necessary to teach them reading and writing, or because of his immoral conduct, or of his continual neglect to fill up and sign the certificates of scliool attendance re- quired by this act, the inspector of the district may annul any certi- ficate granted by such disqualified schoolmaster, by a notice in writing addressed to the occupier of the factory in which the children named in the certificate are employed, or his principal agent, setting forth the grounds on which he deems such schoolmaster to be unfit ; and after the date of such notice no certificate of school attendance granted by such schoolmaster shall be valid for the purposes of this act, unless with the consent in writing of the inspector of the district ; 7 & 8 VICT. c. 15. 471 but no inspector shall annul any such certificate unless in the afore- said notice he shall name some other school situated within two miles of the factory where the children named in the certificate are employed : provided also, that any schoolmaster whose certificate Appeal, shall have been annulled, or the occupier of the factory in which the children named in the said certificate are employed on behalf of the schoolmaster, may appeal to the Secretary of State against such decisions of the inspector, and the Secretary of State may, if he thinks fit, rescind such decision : provided also, that every inspector shall in his annual report to the Secretary of State for the Home Department state the instances (if any) in which he shall have had occasion to annul any such certificate, together with the reasons which he has in each case assigned for so doing. 40. And be it enacted, that so much of the Factory Act as limits Repeal of the time for preferring complaints for cflfences against the said act, P^f' of 3 & 4 and as requires any written notice to be given of the intention to ^ jQg ' prefer any complaint for such offence, and as fixes any penalty or punishment for offences against the said act, and as relates to the procedure for convicting any person of any offence against the said act, and for levying or inflicting the ]ienalty or punishment im- posed, and for appealing against any such conviction, and as specifies the circumstances under which any penalties and punishments shall not be levied or inflicted, and as relates to the application of penalties, shall be repealed. 41. And be it enacted, that the occupier of any factory in which Occupier of any offence against this act has been proved to have been committed, J'^^/^f'.°J7 and for which a pecuniary penalty may be imposed, shall in every f^j. offences case (save as hereinafter provided) be deemed in the first instance to against this have committed the offence, and shall be liable to pay the penalty ; ^'^^ ■" the but any occupier who shall have been proceeded against by any "fst instance, inspector or sub-inspector shall be entitled, upon complaint or infor- mation duly made by such occupier, to have any agent, servant or workman whom he shall charge as the actual offender brought by summons before the justices at the time appointed for hearing the complaint made against him by the inspector or sub-inspector ; and if after the commission of the offence has been proved the occupier of the factory shall prove, to the satisfaction of the justices, that he had used due diligence to enforce the execution of the act, and that the said agent, servant or workman had committed the offence in question without his knowledge, consent or connivance, the said agent servant or workman shall be convicted of such off"ence, and shall pay the penalty instead of the occupier of the factory ; and the payment of such penalty and costs shall be enforced against the agent, servant or workman in like manner as penalties are made re- coverable by this act: provided always, that when it shall be made to appear to the satisfaction of the inspector or sub-inspector, at the time of discovering the offence, that the occupier of the factory had used all due diligence to enforce the execution of this act, and also by what person such otfence had been committed, and also that it had been committed without the personal consent, connivance or knowledge of the occupier, and in contravention of his orders, then the inspector or sub-inspector sliall proceed against the person whom he shall believe to be the actual offender in the first instance, with- out first proceeding against the occupier of the factory. 42. And be it enacted, that notice in writing of .'ijn intention to Notice of prefer a comjjlaint that a child or youngperson had been employed in a complaints factory in which sufficient means had not been employed or continued °f "','f,"^'''*''** /■ • , . ,- . • 1 /■ -1 inacliincry. lor protecting the workers from being wetted or lor preventing the 472 APPENDIX. Inspector or sub- inspector to give notice of dangerous machinery. Upon appli- cation by the occupier arbitrators may be ap- pointed to examine the machinery. Complaints to be pre- ferred within two months. escape of steam into the room occupied by tlie workers, or that any part of the aforesaid machinery (^r), hoist or teajjle or wheel-race has not been securely fenced, shall be given four days at least previous to the day fixed for hearing the complaint; and if the party com- plained against intend to bring forward any millwright or other person skilled in the construction of the aforesaid machinery as a witness at the hearing of the case, he shall give notice in writing of such intention to the inspector or sub-inspector who shall be the complainant forty-eight hours previous to the day fixed for hearing the case. 43. And be it enacted, that if an inspector or sub-inspector shall observe in a factory any part of the machinery (A) of any kind or description or any driving strap or band not securely fenced, which he shall deem likely to cause bodily injury to any person employed in such factory, he shall give notice in writing to the occupier of such factory or his agent of such part of the machinery or such strap or band as he shall deem to be dangerous, acconling to the form and directions given in Schedule (D.) to this act annexed ; and the oc- cupier of the factory or his agent shall sign a duplicate copy of such notice in acknowledgment of his having received it : provided always, that upon an a])plication in writing made by the occupier of the factory, within fourteen days after he shall have received such notice, two arbitrators skilled in the construction of the kind of ma- chinery to which such notice refers shall be apjjointed, one of whom shall be named by the occupier of the factory in the aforesaid appli- cation, and the other by the inspector of the district, with the least possible delay after he shall have received such application ; and the said arbitrators shall proceed to examine the machinery alleged to be dangerous within fourteen days of the appointment of the arbitrator named by the inspector ; and if the arbitrators so appointed shall not agree in opinion the said arbitrators shall choose a third arbi- trator possessing a similrir knowledge of machinery ; and if the said arbitrators or any two of them shall sign an opinion in writing addressed to the inspector of the district, that it is unnecessary or impossible to fence the machinery or strap or band alleged in the notice to be dangerous, the inspector of the district on receipt of the same shall cancel the said notice; and if the decision of the arbi- trators shall be that it is unnecessary or impossible to fence the ma- chinery so alleged to be dangerous, the expense of such reference shall be ])aid as other expenses under this act, but if the decision of the arbitrators shall be that it is necessary and possible to fence the said machinery, then the experises of the reference shall be paid by the occupier of the factory, and shall be recoverable as the penalties under this act are recoverable. 44. And be it enacted, that all complaints for offences against this act shall be preferred within two months next after the commission of the offence, except in the case of complaints for offences punish- able at discretion by fine or imprisonment, or for working on Christ- mas Day, Good Friday or the Sacramental Fast Days, or for not giving all or any of the eight half days for holidays required to be given, in each of which cases the complaints may be preferred within three months next after the commission of the offence ; and no person shall be liable to a larger amount of penalties for any repetition from day to day of the same kind of offence than the highest penalty here- (g) See 19 & 20 Vict. c. 38, s. 5, post. (k) See also 19 & 20 Vict. c. 38, ss. 5, 6, post. 7 & 8 VICT. c. 15. 473 inafter named for such offence, unless such repetition of offence shall have been committed after a complaint shall have been made for the previous oiTence, and except also for offences of employing two or more children or young persons contrary to law. 45. And be it enacted, that all complaints for the enforcement of Proceedings any penalty under this act shall be heard and determined by two or under this „ • ,• r 1 ■ ,- 1 > ■ ■ 1- • act may be more justices ot the peace acting lor the county or other jurisdiction ^ad before wherein the offence was committed, or for any adjoining county or any justices. jurisdiction, with the like authority as though the cause of complaint had arisen witliin such adjoining county or jurisdiction, provided that the place of hearing the complaint in such other county or jurisdiction be not more than five miles from the place where the offence was committed ; and the justices by whom any person shall Penalties be fined for any offence against this act may order that such person ^^^y ^h"^^" shall pay the penalty, and also the reasonable costs and charges of jjj 5 ggg^ 4 such proceedings and conviction, either immediately or within such c. 18. time as the said justices shall think fit ; and in default of payment thereof any justice may cause the same to be levied by distress and sale of the goods and chattels of the party convicted, together with the reasonable costs and charges of such conviction, distress and sale, by warrant under the hand and seal of any such justice : and Power of where the warrant of distress is directed against the goods and chat- distraining tels of any person being the occupier of a factory it shall be lawful factory where under such warrant to distrain any goods and chattels found in occupier is the said factory which would be liable to be distrained for rent in convicted. aiTear. 46. And be it enacted, that in England and Ireland a summons Issue of for an offence against this act shall be issued by any justice, upon ^"™™;*'"* complaint being made to him in writing by an inspector or sub- against act. inspector, or upon oath before him by any other person, that to the best of the knowledge and belief of the inspector, sub-inspector or such other person such an offence has been committed, and in Scot- land a summons for an offence against this act shall be issued by any justice upon complaint being made to him in writing by an inspector or sub-inspector, or by the procurator fiscal, or by any person having a title and interest to prosecute with the concurrence of the procu- rator fiscal, that to the best of the knowledge and belief of such inspector, sub- inspector, procurator fiscal or other person such an offence has been committed ; and in every such prosecution in Scot- land the proceedings shall be summary, and it shall not be necessary to take down in writing more than the substance of the evidence ; and no higher or other fees shall be allowed in Scotland to the clerk of court or constables than are allowed to be paid to the sheriff clerk and sheriff officers in causes and prosecutions under the autho- rity of an act passed in the tenth year of the reign of King George 10 Geo. 4, the Fourth, intituled " An Act for the more effectual Recovery of *^- ^^• Small Debts, and for diminishing the Expenses of Litigation in Causes of small Amount in the Sheriff Courts in Scotland." 47. And be it enacted, that every person who shall be summoned Compelling to answer any complaint shall be bound to appear at the time («) P^i^'i^s '" (0 Where the proceedings are appear; Ex parte Hopwood, 15 taken under sect. 47, the time is Q. B. 121. See further, infra, in the discretion of the justices ; note to sect. 69. In Ex parte but semble, that, under sect. .50, Williams, 2 L. M. & P. 580, it the summons must be served was held that under II & 12 twenty-four hours before the Vict. c. 43, s. 2, which authorizes time at which the party is to justices to proceed ej;/^ar for the factory - - - J Clock by which the hours of work } are regulated - - . j[ The Hours of Work of all Young Persons and Females above Eighteen Years of Age employed in this Factory (r). Days of Week. Morning. Forenoon. Afternoon. Evening. Total hours. From To From To From To From To * * In this space the days of the week to which the hours of work refer shall be entered. S Signature of the occupier of \ the factory or his agent. In every silk factory in which children above eleven years of age are employed more than seven hours in any one day, a separate notice in the above form shall be fixed up of the hours such children are employed. (r) See 13 & 14 Vict. c. 54, s. 2, post. SCHEDULES TO 7 & 8 VICT. C. 15. 489 Form for the Notice to he fixed up of the Times allowed for Meals. The Times allowed for Meals in this Factory. Days of the Week. Breakfast. Dinner. Tea. From To From To From To # * In this space the day to which the meal hours refer shall be entered. S Signature of the occupier of i the factory or his agent. These notices of the regular hours of work fixed up in a factory are not required to be altered when young persons are only employed at other hours for the recovery of lost time as authorized by this act, provided the notice required to be fixed up when recovering lost time be fixed up, and provided on such notice it is stated at what time of the day it is intended to recover the time so lost. Form of the Notice to he fixed up when the Occupier of the Factory intends to recover all or any part of the Time which has been lost by the Stoppage of the Machinery in the Factory, as allowed by this Act. Account of Time lost and recovered. TIME LOST. TIME RECOVERED. Date. Cause of Loss, Time of Day when lost. Amount lost. *-• O K _« p Date. Time of Day wiien reco- vered. Amount recovered. Hours. Min. Hours. Min. /Signature of the occupier of \ the factory or his agent. y 5 490 APPENDIX. No lost time is required to be entered except such as it may be intended to recover. The entries of all the details in this notice relating to any time lost or recovered shall be made in conformity with the provisions in the act. Form of the Notice to he fixed up when Time has been lost by partial Stoppage of the Macldnery by Drought or Floods, and is intended to be recovered during the following Night, Notice of Time lost and recovered. TIME LOST. TIME RECOVERED. Description of the room where the stoppage took place, and of the ma- chinery stopped. Time of the day when the stoppage took place. Amount of Time lost. Signature of the person taking Time. Time of the night when the young persons are employed. Amount of Time recovered. Hours. Min. Hours. Min. Names of the Females and Young Persons who have lost Time by the Stoppage of the Machinery at the Dates affixed. Date when Time vraa lost. Christian Name. Date when Time was lost. Christian Name. The entries of time lost, and of the names of the females and young persons who have lost time, si)all be made in these notices before any part of the time can be recovered. SCHEDULES TO 7 & 8 VICT. C. 15. 4U1 All notices of time lost and recovered, except when they are kepi hung up in the factory, as required by this act, shall be preserved in a book in the order of their respective dates, and be open for the examination of any inspector or sub- inspector, and all such notices shall be kept for six calendar months after the lost time entered therein shall have been recovered. SCHEDULE (D.) Forms of Notices, Summonses and Conviction. Form of Notice to be given to the Occupier of a Factory, by an Inspector or Sub- Inspector of such part of the Machinery , or such Driving Strap, or Band, in the Factory, as appears to him to be dangerous to the Workers. To [name of occupier\ occupier of a [description of the maniifacture~\ factory, situated in the jiarish of and county of I hereby give you notice, that the following parts of the ma- chinery in your factory, namely [here enumerate the parts^, appea"^ to me to be dangerous, and likely to cause bodily injury to the workers employed in the factory ; and I am of opinion that they ought severally to be immediately well and securely fenced. And I hereby further give you notice, that by the act made in the year of her Majesty's reign, intituled [here set forth the title of this act^, it is provided, that if, after receiving this notice, you shall neglect or fail to fence the above enumerated machinery, and if any persons shall suffer any bodily injury in consequence of such neglect or failure, you will be liable to a penalty of one hundred pounds, over and above all damages, costs and charges to which you may be found liable in any action brought against you by or on behalf of the person so injured. Given under my hand, this day of in the year one thousand eight hundred and (Signed) Inspector [or Sub-Inspector]. Form of Summons to be issued by an Inspector or Sub-Inspector against a Person who has committed an Offence. County of } [or borough of] j To the constable of Whereas it appeareth to me I. F., one of her Majesty's inspectors [or sub-inspectors] of factories, that A. D. of in the county [or borough, <^-c.] of hath offended against the act made in the year of her Majesty's reign, intituled [here set forth the title of this act], forasmuch as he the said A. D., on tlie day of in the year of Lord at in the county [or borough, Ac] of ' did [here set forth the substance of the charge'] ; these therefore are to require you forthwith to summon the said ■193 APPENDIX. A. D. to apjiear before such two or more of her Majesty's justices of the peace acting in and for the county \^or borough, <^c.] of who shall be present at in the county [or borough, <|-c.] of on the day of at the hour of in the noon of the same day, to answer to the said charge, and to be further dealt with according to law. And be you then there to certify what you have done in the premises. Herein fail not. Given under my hand, this day of in the year of our Lord (Signed) 1. F., Inspector [or Sub- Inspector]. Form of Summons of a Witness to be issued by an Inspector or Sub- Inspector, County of 2 [or borough of] j To the constable of Whereas it appeareth to me, I. ¥., one of her Majesty's inspectors [or sub -inspector] of factories, that A. D. of in the county [or borough, t' filed amongst the records of the county. No appeal from con- victions, except in certain cases. Appeal. Who are to exercise the powers of justices. of such conviction upon any future proceeding under this act; and for every sucli copy the clerk shall be entitled to have a fee of one shilling and no more. 50. And be it enacted, that every conviction under this act may be in the form given in the Schedule (D.) to this act annexed, or in any other form more suitable to the case, and shall be certified in England and Ireland to the next general or quarter session of the peace, and in Scotland to the clerk of the justices of the peace, there to be fiied amongst the records of the county, riding, division, stewartry, town or place. 51. And be it enacted, that no appeal shall be allowed against any conviction under this act, except for an offence punishable, at dis- cretion, by fine or imprisonment, or when the penalty awarded shall be more than three pounds; neither shall any conviction, except as aforesaid, be removable by certiorari or bill of advocation into any court whatever; and no information, conviction or other proceeding on any complaint for an offence against this act shall be quashed or deemed illegal for matter of form, or for the want of any averment unnecessary to be proved, or the omission of any word, or for the insertion of any word, in any case in which such omission or such insertion respectively do not affect the essence of the offence, nor for the wrong designation of a name or time or place, where the person, time and place intended shall have been so stated as to have been, in the opinion of the justices by whom the complaint shall have been heard, clearly understood by the person charged with such offence ; and it shall not be necessary, in any information, conviction or other proceeding under this act, to define the pro- cesses carried on in such print work, or to set out that the print work or process of emj)loyment referred to is not within any of the cases excepted, provided that it be therein stated that such print work is a print work within this act ; and tlie proof of being within any such excepted case shall lie upon the party claiming the benefit of such exception. 52. And be it enacted, that any person aggrieved by any such conviction for which an appeal is allowed by this act may appeal to the next court of general or quarter sessions which shall be holden not less than twelve days after the day of the conviction for the county or other jurisdiction wherein the cause of complaint shall have arisen ; provided that the person so intending to appeal shall give to the inspector or sub- inspector of the district notice in writing of such appeal, and of the cause or matter thereof, within three days after the conviction or order, and seven clear days at the least before such session, and shall also enter into a recognizance with two sufficient sureties before a justice of the peace for the county or other jurisdiction seven clear days at the least before such session, conditioned personally to appear at the said session, and to try such appeal, and to abide the judgment of the court thereon, and to pay such costs as shall be by the court awarded; and the court at such session shall hear and determine the matter of appeal, and shall make such order thereon as to the court shall seem meet ; and in case of the dismissal of the appeal or the affirmance of the convic- tion or order the court shall adjudge and order tlie party to be puni.shed according to the conviction, or to obey the order appealed against, and to pay such costs as shall be awarded, and shall, if necessary, issue process for enforcing such judgment. 53. And be it enacted, that in all cases in which a justice of the peace is required or empowered to do any thing under this act, or is named therein, a burgh magistrate shall have within his jurisdiction SCHEDULES TO 8 & 9 VICT. c. 29. 507 the same powers and duties as are herein given to such justice, and shall exercise the same in Scotland ; but no complaint preferred for any offence against this act committed in a print vvorli shall be heard by a justice of the peace or burgh magistrate, being an occu- pier of the print work, or being the father, son or brother of the occupier of the print work, in which the offence set forth in the complaint shall have been committed. 54. And be it enacted, that this act may be amended or repealed Alteration by any act to be passed in this session of Parliament. of act. SCHEDULES to which the Act refers. SCHEDULE (A.) Surgical Certificate. [To be written or printed on white Paper.'\ Print Works Regulation Act, Victoria, c. No. . Certificate of Age for a Child to be employed in the Print Work of situate at in I of duly appointed a certifying surgeon, do hereby certify, that son [o;- daugliter] of and residing in has been personally examined by me this day of one thousand eight hundred and and that the said child has the ordinary strength and appearance of a child of at least eight years of age, and that I believe the real age of the said child to be at least eight years ; and that the said child is not incapacitated by disease or bodily infirmity from working in the above-named print work for the time allowed by this act. Signed Certifying Surgeon. The form of surgical certificate to be given to a child who has obtained a certificate of real age shall be tliesame as above, omitting the words " and that the said child has the ordinary strength and appearance of a child of at least eight years of age, and that T be- lieve the real age of the said child to be at least eight years," and substituting these words in their place, " and that a certificate of the birth \_or baptism] of the said child has been produced to me in the form required by this act, proving that the real age of such child is at least eight years." [ To be written or printed on coloured Paper. ] Print Works Regulation Act, Victoria, c. No. . Certificate of Age for a Young Person to be employed in the Print Work of situate at in I of duly appointed a certifying surgeon, do hereby certify, that son [or daughter] of and residing in has been personally examined by me this day of one thousand eight hundred and z2 508 APPENDIX. and that the said young person has the ordinary strength and ap- pearance of a young person of at least thirteen years of age, and that I believe the real age of the said young person to be at least thirteen years ; and that tlie said young person is not incapacitated by disease or bodily infirmity from working in the above-named print work for the time allowed by this act. Signed Certifying Surgeon. The form of surgical certificate to be given to a young person who has obtained a certificate of real age shall be the same as the above, omitting the words "and that the said young person has the ordinary strength and appearance of a young person of at least thirteen years of age, and that 1 believe the real age of the said young jjerson to be at least thirteen years," and substituting these words in their place, "and that a certificate of the birth [oc baptism] of the said young person has been produced to me in the form required by this act, proving that the real age of such young person is at least thir- teen years." The form of surgical certificate to be given in either case by any practitioner who is not a certifying surgeon must be the same as the corresponding form above given, omitting the words " duly appointed a certifying surgeon," and substituting the words " duly authorized by the university [^or college or other public hodi/ having authority in that behalf^ of to practise surgery [or medicine]," and making the following addition which must be signed by a justice of the peace or burgh magistrate : — The child [or young person] named in the above written certifi- cate has been this day brought before me ; and the appearance of the said child [or young person] agrees with the description therein g^ven ; and I believe the real age of the said child [or young person] to be at least [here insert the word " eight" or " thirteen" in the case of a young person] years ; and I declare that I have no beneficial interest in and am not the occupier of any print work, and that I am not the father, son or brother of the occupier of any print work. Dated this day of one thousand eight hundred and Signed C. D., Justice, [or Burgh Magistrate.] In every surgical certificate of age the day of the month on which it shall be granted shall be written in words, and not in figures. So soon as any certificates authorized by this act to be received as proof of the age of any persons shall be obtained by the occupier of a print work or his agent, they shall be fixed in a book to be called " The Age Certificate Book," in the order of the dates at which they shall have been respectively received ; and such certificates shall be numbered in the order in which they are so fixed in the book ; but the certificates for children shall be kept in a separate and distinct place in the said book, or in a separate book, and shall be marked with a series of running numbers distinct from that of the certificates for young persons. So soon as any certificate of age authorized by this act shall be obtained, the number hereinbefore required to be set against each certificate shall be set against the name of the child or young person to whom such certificate has been granted in the first column of the register of the persons employed required by this act to be kept in each factory. SCHEDULES TO 8 & 9 VICT. C. 29. If a surgeon shall have refused to grant a certificate of age to any child or young person the word "refused" shall be written by the surgeon in the column of the register where the numbers of the cer- tificates are required to be inserted. 509 Print Works Regulation Act, Victoria, c. Certificate Refused. I of duly appointed a certifying surgeon, do hereby declare, that son \_or daughter] of residing in has been personally examined by me this day of one thousand eight hundred and and that in my opinion the said child \_or young person] has not the ordinary strength and appearance of a child of at least eight years of age \^or of a young person of at least thirteen years of age], or [or and] is incapacitated by disease and bodily infirmity from working in a print work for the time allowed by this act. Signed Certifying Surgeon. N.B. — The words within brackets shall be in the hand- writing of the certifying surgeon, who shall insert the reason of his refusal to be either on account of deficient age or bodily infirmity, or both, as the case may be. Print Works Regulation Act, Victoria, c. School Certificate Book {y). I hereby certify, that the child A. B., son \^or daughter] of C. D. and E. F., residing in attended the school kept by me at in the parish and county of for the number of hours and at the time on each day specified in the columns opposite to his \_or her] name. During the week ending on Saturday the day of 18 . Monday. Tuesday. Wednesdy. Thursday. Friday. Saturday. Total number of hours during this Week. From To From To From To From To From To From To Signed this Schoolmaster, day of 18 . {y) Repealed by 10 & 11 Vict. c. 70, post. 610 APPENDIX. During the week ending on Saturday the of If day Monday. Tuesday. Wednesdy. Thursday. Friday. Saturday. Total number of hours during this Week. From To From To From To From To From To From To Signed this Schoolmaster, day of 18 , Under the column headed with the days of the week the periods of the day that each child attends school shall be stated, as thus, from nine to twelve, or from two to five, or any other time, as the case may be. The time when each child attends school, or the word " Absent," shall be stated in the column for each day in the handwriting of the schoolmaster; and no certificate shall be valid unless the school- master shall, in his own handwriting, subscribe to it his christian and surname in full. Each certificate book shall contain twenty- six forms similar to the above, and shall be valid for the purposes of this act for six months only, either from the first day of January to the last day of June, or from the first day of July to the last day of December of any year ; and at the expiration of either period of six months such certificate book, containing the school attendance of the child certified, shall be delivered by tlie parent or other person having direct benefit from the wages of such child to the occupier of the print work where such child is employed, and if the child cease to be employed in the print work to the occupier of which such school certificate book was delivered, the parent or otiier person as aforesaid shall be entitled, on demand, to have the said certificate book restored to him. SCHEDULES TO 8 & 9 VICT. C. 29. 511 SCHEDULE (B.) Registers. Form of the Register of Children. List of Children employed in this Print Work. No. of Re- ference to Age Certifi- cate Book, as required by Schedule (A.) NAMES. Date of first day of being employed or re-employed. When any Child ceases to be employed, insert opposite the name the word Left ; and when any Child completes his thir- teenth year of age, the word Thirteen. School at -which the Child attends. 1 a 3 03 " s Month. Day. Year. Name of the Master. Situa- tion of the School. This register shall contain the name of every child employed in the print work, to be entered in alphabetical order, successively when engaged to work, whether for the first time, or, after having left, when re-engaged to work. At the beginning of this register shall be inserted — \. The name of the occupier or firm. 2. The name of the print work, the place, township, parish and county where it is situated, and the post office to which the occupier desires his letters to be directed. 3. The nature of the work carried on. 4. The clock by which the employment of the workers in the print work is regulated. Every alteration in any of the above particulars shall be inserted immediately after the alteration shall have been made. 612 APPENDIX. Form for the Register of Young Persons. List of Young Persons employed in this Factory. No. of Refer- ence to Age Certificate Book, as re- quired in Schedule (A.) NAMES. Date of first day of being employed or re-employed. When any young person ceases to be employed, insert opposite the name the word Left ; and when any young person com- pletes his sixteenth year of age, the word Sixteen. Surname. Christian Name. Month. Day. Year. The visits of the certifying surgeon to the print work shall be recorded in this register in the manner following. Date of Visit. Number of Persons presented for Examination. Number of Certificates granted. Signature of Surgeon. * If the surgeon shall be told that there is no cliild or young person in the print work to be examined at the time of his visit he shall insert in this column the word " None." f If none granted he shall insert the word " None." SCHEDULES TO 8 & 9 VICT. c. 29. 513 SCHEDULE (C.) Notice to be fixed up in the Print Work. Form for the Notice to he fixed up of the Names and Addresses of the Inspector and Sub- Inspector, and the Clock for regulating the Hours of Work in the Print Work. Name and address of the inspector ) of the district .. .• .. \ Name and address of the sub- ^ inspector of the district . . S Name and address of the surgeon^ who grants certificates of age for the print work . . Clock by which the hours of work ) are regulated . . . . . . ) SCHEDULE (D.) Forms of Summonses and Conviction. Form of Summons to he issued hij an Inspector or Suh- Inspector against a Person who has committed an Offence. County of \ [or borough of ] i To the constable of Whereas it appeareth to me, L F., one of her Majesty's inspectors [or sub-inspector] of factories, that A. D. of in the county [or borough, Sj-c.'\ of hath oifended against the act made in the year of her Majesty's reign, intituled [here set forth the title of this act] ; forasmuch as he the said A. D., on the day of in the year of our Lord at in the county [or borough, <^-c.] of did [here set forth the substance of the charge'] : These, therefore, are to require you forthwith to summon the said A. D. to appear before such two or more of her Majesty's justices of the peace acting in and for the county [or borough, cfc] of who shall be present at in the county [or borough, 4'C-] of on the day of at the hour of in the noon of the same day, to answer to the said charge, and to be further dealt with according to law, and be you then there to certify what you have done in the premises. Herein fail not. Given under my hand, this day of in the year of our Lord (Signed) \. F., Inspector [or Sub-Inspector]. 514 APPENDIX. Form of Summons of a Witness to he issued by an Inspector or Sub- Inspector, County of } [or borough of ] i To the constable of Whereas it appeareth to me, I. F., one of her Majesty's inspectors [or sub-inspeclor] of factories, that A. D. of in the county [or borough, 8fc.~\ of hath offended against the act made in the year of her Majesty's reign, intituled [here set forth the title of the act^ : forasmuch as he the said A. D., on the day of in the year of our Lord at in the county [or borough, cjc] of did [here set forth the substance of the charge'], and that B. P. of in the county [or borough, i^c] is a material witness to be examined concerning the said charge: These, therefore, are to require you forthwith to summon the said B. P. to appear before such two or more of her Majesty's justices of the peace acting in and for the county [or borough, ^•c.'\ of as shall be present at in the county [or borough, Sfc.'] of on the day of at the hour of in the noon of the same day, to testify his knowledge con- cerning the premises, and be you then there to certify what you have done in the premises. Herein fail not. Given under my hand, this day of in the year of our Lord (Signed) L F., Inspector [or Sub-Inspector]. Form of Conviction. County of ^ BE it remembered, that on the day [liberty or borough, > of in the year one thousand eight as the case ivay be]. ) hundred ^nd A. B. [describe the offender] is convicted before us J. P. and K. Q., two of her Majesty's justices of the peace for the county [liberty or borough, as the case may be], of in pursuance of an act passed in the year of the reign of Queen Victoria, intituled [here insert the title of this act], for that he [describe the offence]. Given under our hands and seals, the day and year above written. J. P. (l.s.) K.Q. (l.s.) 8 & 9 Vict. c. 77. An Act to make further Regulations respecting the Tickets of Work to be delivered to Persons employed in the Manufacture of Hosiery, in certain cases. [4th August, 1845.] Whereas by an act passed in the fifth year of the reign of King 6 Geo. 4, George the Fourth, intituled "An Act to consolidate and amend c. 96. the Laws relative to the Arbitration of Disputes between Masters and Workmen," it was enacted («), amongst other things, that "with (2) Sect. 18, ante, p. 348. 8 & 9 VICT. c. 77. 515 every piece of work given out by the manufacturer to a workntian to be done, there shall (if both parties are agreed) be delivered a note or ticket in such form as the said parties shall mutually agree upon :" And whereas it is expedient that, so far as relates to persons em- ployed in the woollen, worsted, linen, cotton and silk hosiery manu- factures, such further provision should be made for delivery to them of a note or ticket of work as hereinafter is expressed : Beit there- fore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the autho- rity of the same, that Irom and after the first day of January in the year one thousand eight hundred and forty-six, when any manufac- turer of hosiery, or the agent of any such manufacturer, gives out to Manufac- a workman the materials to be wrought, such manufacturer or agent turerto de- shall at the same time deliver to such workman a printed or written materials a ticket, signed by such manufacturer, containing the particulars of ticket of the agreement between such manufacturer and such workman, as in work, the schedule to this act annexed ; and such manufacturer or agent delivering such ticket shall make or cause to be made, and shall preserve until the work contracted to be done shall have been com- pleted or paid for, a duplicate of such note or ticket. 2. And be it enacted, that in the event of any dispute between Ticket to be the manufacturer or his agent and the workman, such ticket, and the evidence, said duplicate thereof, shall be required to be produced, and shall, together or either of them, be evidence of all things mentioned therein or respecting the same. 3. Provided always, and be it enacted, that where the subject of When dis- djspute relates to the alleged improper or imperfect execution of anv pute^f'^^'' work delivered to a manufacturer or his agent, such piece of work j-gct execu- shall be produced in order to adjudication, or if not produced, shall tion the be deemed and taken to have been sufficiently and properly ex- ^°^^ ^o be ^1 ./ J i ./ produced, ecuted. ^ 4. And be it enacted, that if any manufacturer or agent shall Penalty on neglect or refuse to deliver such ticket to such workman as afore- manufac- said, with the materials so given out, and if such workman shall „on-delivery complain thereof to any justice of th? ])eace having jurisdiction in of ticket, the place where the materials shall have been delivered out, or where the workman shall reside, such justice may summon such manufacturer or agent io attend before two justices at a time or place appointed for hearing the complaint, and set forth in the summons; and if the person to whom such summons so directed appears accord- ing to the tenor thereof, or if he does not appear, and the due ser- vice of the summons is proved, the said justices may proceed to hear and determine the complaint ; and if such neglect or refusal as aforesaid be proved, either by the confession of the party complained against, or by the oath of the complainant, or of any other credible witness or witnesses, such justices may convict such oflen.ler, and may, upon such conviction, adjudge him to pay such penalty not exceeding five pounds, together with the costs attending the convic- tion, as such justices shall think fit, and the party so adjudged to pay such penalty and costs shall pay the same accordingly ; pro- vided always, that in all convictions of adjudications under this act, one at least of the convicting or adjudicating justices shall be a per- son not engaged in any manufacture, trade, occupation or employ- ment to which this act extends, and shall not be the father, son or brother of any such person. 5. And be it enacted, that if any of the parties to the said com- Power of plaint shall make oath before any justice having cognizance of such sii'iimomng 1 J ■! o o witnesses. 516 APPENDIX. complaint that lie or she believes tliat the attendance of any person as a witness will be material to the hearing of such complaint, such justice may summon such person, having been paid or tendered a reasonable sum for his expenses, to appear and give evidence on oath at a time and place set forih in the said summons ; and if any person so summoned shall not appear at the time and place set forth in the said sunnnons, and shall not make excuse for the default to the satisfaction of the justices there present, and if the due service of the summons be proved, or if such person appearing according to the summons shall not submit to be examined as a witness, then such justices may adjudge such person so making default in appear- ing or refusing to give evidence to pay such penalty not exceeding two pounds, as such justices shall think tit, and the party so ad- judged to pay such penalty shall pay the same accordingly. Service of 5. And be it enacted, that every summons required by this act summons. shall be served by delivering the same to the person summoned, or by leaving the same at his or her usual place of abode, twenty-four hours at least before the time appointed by the summons for such person to appear. Levyinpr and 7_ ^j^j [,g jj enacted, that if any such penalty or costs so adjudged of penalty" by any justices to be paid is not paid inmiediately upon adjudica- tion, such justices may issue their warrant to distrain and sell the goods and chattels of the person so adjudged to pay the same, for the amount thereof, with costs; and the proceeds of such distress, after paying the penalty and costs, and the costs of such distress and sale, shall be paid over to the person convicted ; and the said penalty shall be paid over to the sheriff or other proper officer of the county, city, borough or place in which such conviction shall take place, for her Majesty's use, and shall be returned to the court of quarter sessions, under the provisions of an act passed in the third 3 Geo. 4, year of the reign of King George the Fourth, intituled "An Act c- 46. for the more speedy Return and levying of Fines, Penalties, and Forfeitures, and Recognizances estreated." No cerlio- 8. And be it enacted, that no order or conviction, or proceeding rarj allowed, touching the same respectively, shall be quashed for want of form, nor distress , ^ , , .f . •' ^, ■ . ^ ^ , at • . . unlawful °'' "^ removed by certiorari or otherwise into any of her Majesty s for want of superior courts of record ; and that when any distress shall have form. been made for levying any money by virtue of this act the distress itself shall not be deemed unlawful, nor the party making the same a trespasser, on account of any defect or want of form in the sum- mons, warrant, conviction, warrant of distress, or other proceedings in relation thereto, nor shall the party distraining be deemed a tres- passer from the beginning, on account of any irregularity afterwards committed by him, but the person aggrieved by such irregularity may recover full satisfaction for special damage (if any) by action on the case. Interprefa- 9. And be it enacted, that the word " manufacturer" in this act lion of act. shall be understood to mean any person furnishing the materials of work to be wrought into hosiery goods, to be sold or disposed of on his own account, and the word "agent" to include any person conveying or delivering the same to the workman, and the word " workman" any person actually employed in the manufacture of the same, of a^-'t^''°° ^^' ^^^ ^^ '*■ s"^'^*^'^' tliat this act may be amended or repealed by any act to be passed in the present session of Parliament. SCHEDULE TO 8 & 9 VICT. c. 77. 517 SCHEDULE. If the material to be manufactured be into stockings : Gauge. Ribbed or plain. What kind of material. Size. Jacks in width. Mark. Length of leg. Length of foot. Narrowings in leg. Narrowings in heel. Narrowings in gusset. Narrowings in toe. Dumps or clocks. Bound heels or toes. Wrought heels or cut. Wrought feet or cut. Turnings in leg. Welted or not. Weight per dozen. Price per dozen pair of making legs. Price per^dozen pair of making feet. Name of party putting out the work. Name of artificer. If the material to be manufactured be into socks : Gauge. Ribbed or plain. What kind of material. Size. Jacks in width. Mark. Length of leg with top. Length of foot. Narrowings in heel. Narrowings in gusset. Narrowings in toe. Cut or wrought heels. Cut or wrought feet. Price pel dozen pair. Name of party putting out the work. Name of artificer. If the material to be manufactured be into gloves : Gauge. Ribbed or plain. What kind of material. Size. Jacks in width of hand. Jacks in width of finger. Mark. Length of hand. Length of finger. 518 APPENDIX. What kind of welts. Plaited or not. What figure in back of hand. Weight per dozen. Price per dozen pair of making hands. Price per dozen pair of making fingers. Name of party putting out the work. Name of artificer. If the material to be manufactured be into shirts : Gauge. Ribbed or plain. Wliat kind of material. Size. Jacks in widtli of body. Jacks in width of sleeve. Mark. Length of body. Length of sleeve. Fashioned or not. Welted or not. Weight per dozen. Price per dozen of making bodies. Price per dozen pair of making sleeves. Name of party putting out the work. Name of artificer. If the material to be manufactured be into caps : Gauge. Ribbed or plain. Material. Jacks in width. Fashion. Striped or plain. Weight per dozen. Price per dozen. Name of party putting out the work. Name of artificer. If the material to be manufactured be into any other description of hosiery : Gauge. Length. Width. Weight. Price. Fashion. Name of party putting out the work. • Name of artificer. 8 & 9 VICT. c. 1-28. 619 8 & 9 Vict. c. 128. j4n Act to make further Regulations respecting the Tickets of Work to be delivered to Silk Weavers in certain Cases. [9th August, 1845.] Whereas by an act passed in the fifth year of the reign of King 5 Geo. 4, George the Fourth, intituled " An Act to consolidate and amend the '^- ^^■ Laws relative to the Arbitration of Disputes between Masters and Workmen," it was enacted («), amongst other things, that "with every piece of work given out by the manufacturer to a workman to be done there shall (if both parties are agreed) be delivered a note or ticket in such form as the said parties shall mutually agree upon:" and whereas it is expedient that, so far as relates to silk weavers, such further provision should be made for delivery to them of a note or ticket of work as hereinafter is expressed : be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that from and after the first day of January in the year one thousand Manufac- eight hundred and forty-five when any manufacturer of silk goods or turer to of goods made of silk mixed with other materials, or the aarentof any „,!,,'i!^" ^^ ' 1 I' • p 1 1 • (» warp a such manufacturer, gives out to a weaver oi such goods a piece or ticket of warp to be woven, such manufacturer or agent shall at the same time ^f^oik. deliver to such weaver (unless both parties shall by writing under their respective hands agree to dispense therewith) a printed or written ticket, signed by such manufacturer or agent, containing the following particulars of the agreement between such manufacturer or agent and such weaver (that is to say) : The count or richness of the warp or cane : The number of shoots or picks required in each inch: Tiie number of threads of weft to be used in each shoot : The name of the manufacturer, or the style of the firm under which he carries on business : The weaver's name, with the date of the engagement : And the price in sterling money agreed on for executing each yard imperial standard measure of thirty-six inches of such work in a workmanlike manner : And such manufacturer or agent delivering such ticket shall make or cause to be made, and shall preserve until the work contracted to be done shall have been completed or paid for, a duplicate of such note or ticket. 2. And be it enacted, that in the event of any dispute between Ticket to be the manufacturer or his agent and the workmen, such ticket and the evidence in said duplicate thereof shall be required to be produced, and shall, dispute: together or either of them, be evidence of all things mentioned therein, or respecting the same. 3. Provided always, and be it enacted, that where the subject of and work dispute relates to the alleged improper or imperfect execution of ^^ •'^Pf" any work delivered to any manufacturer or his agent, such piece of order to ad- work shall be produced, in order to adjudication, or if not produced, judication. shall be deemed and taken to have been sufficiently and properly executed. 4. And be it enacted, that if any of the parties to the said com- Power of plaint shall make oath before any justice having cognizance of such summonnig complaint, that he or she believes that the attendance of any person (a) Sect. 18, ante, p. 348. 520 APPENDIX. Service of summons. Leryinf^ and ap|)li- cation of penalty. 3 Geo. 4, c. 46. Recovery of wages and sums due for work. as a witness will be material to the hearing of such complaint, such justice may summon such person, having been paid or tendered a reasonable sum for ills expenses, to appear and give evidence on oath before him at a time and place set forth in the said summons; and if any person so sunimoi;ed shall not appear at die time and place set forth in the said summons, and shall not make excuse for the default to the satisfaction of such justice, and if the due service of the summons be ])ro\ ed, or if such person appearing according to the sunmions shall not submit to be examined as a witness, then such justice may adjudge such person so making default in appearing or refusing to give evidence to pay such penalty not exceeding five pounds as such justice shall think fit, and the party so adjudged to pay such penalty shall p«y the same accordingly. 5. And be it enacted, that every summons required by this act shall be served by delivering the same to the person summoned, or by leaving the same at his or her usual place of abode, twenty-four hours at least before the time appointed by the summons for such person to appear. 6. And be it enacted, that if any such penalty or costs so adjudged by any justice to be paid is not paid immediately upon adjudication such justice may issue his warrant to distrain and sell the goods and chattels of the person so adjudged to pay the same for the amount thereof, with costs ; and the proceeds of such distress, after paying the penalty and costs, and the costs of such distress and sale, shall be paid over to the person convicted ; and the said penalty shall be paid over to the sheriif or other proper officer of the county, city, borough or place in which such conviction shall take place, for her Majesty's use, and shall be returned to the court of quarter sessions, under the provisions of an act passed in the third year of t!ie reign of King George the Fourth, intituled " An Act for the more speedy Return and levying of Fines, Penalties and Forfeitures, and Recog- nizances estreated." 7. And be it enacted, that if any silk manufacturer or other party employing, contracting or engaging with any person for any work in any branch of the said manufacture, or connected therewith or incidental thereto, or for specific work or otherwise, and whether such })erson is to be paid according to the nature or amount of the work done, the time employed, or any other manner, shall not from time to time pay and discharge all such sums of money and wages as shall be justly due and payable to any such person, it shall be lawful for a justice of the peace, on complaint made for that purpose, to summon such manufacturer or other jiarty to appear at a time and place to be named in such summons, and for any two or more justices of the peace to hear and determine such complaint, and order pay- ment of such sum as shall appear to such justices to be justly due and payable, together with costs for loss of time and recovering the same, and in default of payment immediately, or within such period as the said justices shall direct, the said justices shall issue their warrant to levy the same by distress and" sale of the goods and chattels of the said manufacturer or other party ; and the said jus- tices, if they shall think fit, may also, by order in writing, authorize such person to return his work unfinished; and such justices shall also fine such manufacturer or other party for such neglect of pay- ment, if the first ofi'ence five pounds and for the second ten pounds, and five pounds extra for every succeeding offence, unless the said manufacturer or other party shall deliver to the said person employed a notice in writing, within four-and-twenty hours after such refusal to pay to the said person employed the amount of wages due, stating 8 & 9 VICT. c. 128.— 10 & 11 VICT. c. 29. 621 the reasons for such refusal in full, and that the said manufacturer or other party intends to have such work arbitrated. 8. And be it enacted, that no order or conviction or proceeding No certio- touching tlie same respectively shall be quashed for want of form, ''"" '° ^® or be removed by certiorari or otherwise into any of her Majesty's superior courts of record; and that when any distress shall have been made for levying any money by virtue of this act the distress itself shall not be deemed unlawful, nor the party making the same a tres- passer, on account of any defect or want of form in the summons, warrant, conviction, warrant of distress, or other proceedings in relation thereto, nor shall the party distraining be deemed a tres- passer from the beginning on account of any irregularity afterwards committed by him, but the person aggrieved by such irregularity may recover full satisfaction for special damage (if any) by action on the case. 9. And be it enacted, that this act may be amended or repealed Act may be by any act to be passed in the present session of Parliament. amended. 10 & 11 Vict. c. 29. An Act to limit the Hours of Labour of Young Persons and Females in Factories {b). [8th June, 1847.] Whereas an act was passed in the fourth year of the reign of his late Majesty, intituled " An Act to regulate the labour of Children 3 & 4 Will. 4, and Young Persons in the Mills and Factories of the United King- *'• l"^" dom" (e) : and another act was passed in the session of Parliament held in the seventh and eighth years of the reign of her present Majesty, intituled " An Act to amend the Laws relating to Labour 7 & 8 Vict, in Factories" {d) : and by the said first-mentioned act it was pro- "^^ ^''• vided, that no person under the age of eighteen years should be employed in any such mill or factory as in the said act is mentioned, in any such description of work as thereinbefore specified, more than twelve hours in any one day, nor more than sixty-nine hours in any one week, except as thereinafter is provided ; and by the said last- mentioned act it was provided, that no female above the age of eighteen years should be employed in any factory as defined by the said act, save for the same time and in the same manner as young persons (by the said act defined to be persons of the age of thirteen years and under the age of eighteen years) might be employed in factories: And whereas it is expedient to alter the said acts for the purpose of further restricting the hours of labour of young perscfns and females in factories: Be it enacted by the Queen's most excel- lent 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, notwithstanding any thing in Limiting the said acts contained, from the first day of July one thousand V^ ''"""^'^ ■ , . , ^ , , , , P J .^1 f • 1 i during wliich eight hundred and iorty-seven no person under the age ot eighteen persons are years shall lie employed in any such mill or factory, in such descrip- to be em- tion of work as in the said first-mentioned act is specified, for more P'oyed in than eleven hours in any one day, nor for more than sixty-three {^(.to^f^g hours in any one week, except as in the said act is provided ; and (6) See also 16 & 17 Vict. c. (c) Ante, p. 427. \Q^,posL (d) /^n/e, p. 458. 522 APPENDIX. I.iniitinK the number of lioiirs for which per- sons under eighteen years of age are to be employed. Act extended to females above eigh- teen. Recited acts and this act to be con- strued as one act. Act may be amended, &c. that from the said first day of July one thousand eijrht hundred and forty-seven the said two acts before mentioned shall in all respects be construed as if the provision in the provision in the (e) said first- mentioned act contained, as to persons under the age of eighteen years working in mills and factories, had been confined to eleven hours instead of twelve hours in any one day, and to sixty-three hours in any one week instead of sixty- nine hours. 2. And be it enacted, that from the first day of May one thousand eight hundred and forty-eight no person under the age of eighteen years shall be employed in any such mill or factory, in such descrip- tion of work as in the said first-mentioned act is specified, for more than ten hours in any one day nor more than fifty-eight hours in any one week, except as in the said act is provided ; and that from the first day of May one thousand eight hundred and forty -eight the said two acts shall in all respects be construed as if the provision in the said first-mentioned act contained, as to persons under the age of eighteen years working in mills and factories, had been confined to ten hours instead of twelve hours in any one day, and fifty-eight hours in any one week instead of sixty-nine hours. 3. And be it enacted, that the restrictions respectively by this act imposed as regards the working of persons under the age of eighteen years shall extend to females above the age of eighteen years. 4. And be it enacted, that the said two hereinbefore-mentioned acts as amended by this act, and this act, shall be construed together as one act. 5. And be it enacted, that this act may be amended or repealed by any act to be passed in this present session of Parliament. 8 & 9 Vict. c. 29. Sections 23, 24 and 25, and part of Schedule (A.) of re- cited act repealed. 10 & 11 Vict. c. 70. An Act to amend the Law as to the School Attendance of Children employed in Print Works. [22nd July, ISiT.] Whereas it is expedient that so much of an act passed in the ninth year of the reign of her Majesty, intituled " An Act to regu- late the Labour of Children, Young Persons and Women in Print Works" (/), as relates to the school attendance of children employed in print works, should be amended : be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that those parts of the said act wliich in the copies thereof printed by the Queen's printer are printed as separate clauses, and severally numbered 23, 24 and 25, and also so much of the schedule annexed to the said act marked (A.) as relates to certificates of school attendance shall be repealed from and after the first day of August in the year one thousand eight hundred and forty-seven ; provided that all certificates given before the said first day of August s'lall be as valid as if this act had not been passed, and all offences committed before the said first day of August against any of tlie enactments hereby repealed shall be dealt with and punished as if this act had not been passed. (e) Sic. (/) Ante, p. 493. 10& 11 VICT. c. 70, 523 2. And be it enacted, that the master of any school which shall School- be attended by children employed in a print work shall keep a keep^re*- register of their names and attendance, and if the inspector of the gister of district shall disapprove of the form of register adopted by the children's schoolmaster it shall be kept in such other form as the inspector may ^"^ndance. direct. 3. And be it enacted, that after the said first day of August the Occupiers of occupier of every print work shall, before employing any child fo obtrin^^ therein, obtain from a schoolmaster a certificate, according to one of certificate the forms and according to the directions given in the schedule f™™ school- marked (A.) to this act annexed, that such child had attended school ^^^^"^f for at least thirty days and not less than one hundred and fifty hours tendance at during the half-year immediately preceding the first day of the em- school, ployment of such child, or if it shall have left the said print works and shall be again employed therein, the said school attendance shall have been during the half-year immediately preceding the first day of such re-employment, and such school attendance shall be after the hour of eight of tiie clock in the morning, and before the hour of six of the clock in the evening ; but no attendance of less than two and a half hours on any one day shall be reckoned as any part of the said one hundred and fifty hours, nor shall any attendance on any one day for more than five hours be reckoned for more than five hours : and a like certificate shall be obtained at the beginning of each period of six calendar months during which the employment of such child shall be continued in that print work; and such occu- pier shall keep every such certificate so long as such child shall con- tinue in his employment for twelve calendar months after the date thereof, and shall produce the same to any inspector or sub-inspector when required during such period. 4. And be it enacted, that from and after the said first day of Certificate to August the forms of certificates of school attendance of children ^® g'^,en employed in print works shall be in one of the forms given in the schedule, schedule marked (A.) annexed to this act. 5. And be it enacted, that this act and the said act as amended -^"^'^ *° ^^ by this act shall be construed together and as one act. to"ether 6. And be it enacted, that this act may be amended or repealed " by any act to be passed in this session of Parliament. amended &c. \_See the Schedule, next page.^ 524 APPENDIX. tSi s "^ H o _^ w <^ -n »- >-) c "" ^ a >, Q ' ^J W o r-* a ■^ U ^ u =>! •^ ^ i/2 "^ S ^ P. 1 bD-rl 3 CO a> M 5 ^ . o •" ■< -a be bo ;: Q Is Q.I Signature of School Master. Total No. of hours during this Week. ■s 3 o H 1 ."2 o H B V 3 H S i a ■3 O H E o 3 o H 1 >> a C 1 H 2 bo .s ■■ •S S" J: c o 2 TJ 3 . 466. (i) Sect. 32, ante, p. 468. (A-) See the act, ante, p. 521. 13 & 14 VICT. c. 54. 527 3. And whereas, by the said secondly recited act it was enacted, Meal times that the times allowed for meal times, as provided by the said firstly ^^^^ taken recited act, sliould be taken between the hours of half-past seven in half-past the mornins and half-past seven in the evening : be it enacted, that seven in the the times allowed for such meal times as aforesaid shall be taken ^'"■.""'S and between the iiours of half-past seven in the morning and six in the e\^ninf evening; and, subject to such alteration as aforesaid, all the provi- sions of the said firstly and secondly recited acts concerning meal times and notice of meal times shall remain applicable to all young persons, and to all females above the age of eighteen yeai's, em- ployed in any factory. 4. And whereas by the said secondly recited act it was enacted, Young per- that in any factory in which any part of the machinery was moved sons or by the power of water the time which should have been lost by to be em- stoppages from want of water, or from too much water, might be ployed recovered within six months next after the stoppage, between the '"^'^^'^ ^ & 8 hours specified in the said firstly recited act as those within which in^fgcover.' time lost by drought or excess of water might be recovered, and that ing lost time in order to recover time so lost any child or young person might be after seven employed one hour in each day more than the time to which the )" the even- ordinary labour of children and young persons resjectively was restricted by law, except on Saturday : be it enacted, that no young person, and no female above the age of eighteen years, shall, in order to recover time so lost as aforesaid, be employed after seven of the clock in the evening of any day ; and the times before six of the clock in the morning and after six of the clock in the evening during which any sue!) young person or female is so employed in any day shall not together exceed one hour. 5. And whereas by the said secondly recited act it was enacted, that Time during in any factory in which any part of the machinery was moved by the persons ^"^^ power of water, when the stream was so diminished by drought or ivniales may swollen by flood during any part of the day that any pait of the be employed manufacturing machinery driven by the water-wheel had been stopped ""''" ' f^ ^ by reason of such drouaht or flood, the young persons who would ^ 3^' j^ jg". have been employed at such machinery might recover such lost time covering during the night next following the said day, unless the said day lost time, were Saturday; provided that no such young person should be em- ployed during any twenty-four consecutive hours for a greater number of hours than that to which the ordinary daily labour of such young ])ersons in factories was otherwise restricted by law, and that no young person so employed in the night should work more than five hours without an entire cessation from work of at least thirty minutes: be it enacted, that for the purposes of the last re- cited enactment the word " night" shall include the whole period between six of the clock in the evening and six of the clock in the morning ; and no young person, and no female above the age of eighteen years, shall be employed to recover such lost time as last aforesaid during any twenty-four consecutive hours for more than ten hours and half of another hour; and, save as hereinbefore mentioned, young persons and females may be employed to recover lost time according to the provisions of the said secondly recited act. 6. Provided always, and be it enacted, that during all or part of ^^'^" '" the period between the thirtieth day of September of any year and young per- the first day of April of the following year, young persons, and sons from females above the age of eighteen years, may be employed, except seven m the on Saturday, between the hours of seven of the clock in the morning "even'"in the and seven of the clock in the evening, instead of the hours herein- evening, 528 APPENDIX. from 30th Sept. to 1st April, under cer- tain regu- lations. Repeal of provision in 7 & 8 Vict. c. 15, as to chil- dren above eleven years of age em- ployed solely in winding and throwing of raw silk; and in lieu thereof chil- dren above eleven may be employed as young persons. Young per- sons and females employed during meal times, &c., to be held to be em- ployed con- trary to acts. Recited acts and this act to be construed as one act. Act may be amended, &c. before limited, under the following regulations and conditions; (that is to say) notice signed by the occupier of any factory or his agent of the intention to enij)loy young persons and females under this provision, specifying the period, not being less than one month, during which they are to be so employed in such factory, shall be given to one of the inspectors of factories, and a notice to the like effect, in such form as shall be approved by such inspector, and signed by such occupier, or his agent, and by .such inspector, shall be hung or fixed up, and during the period specified in the notice shall be kept fixed up, according to tlie directions for other notices in the said secondly recited act, in such factory ; and during the period specified in such notice young persons, and females above the age of eighteen years, may be employed in such factory after six of the clock and not later tban seven of the clock in the evening of any day, except Saturday ; and during the period specified in such notice (save to recover lost time as herein provided) no young per- son, and no female above the age of eighteen years, shall be employed in such factory before seven of the clock in the morning of any day, except Saturday ; and the provisions hereinbefore contained shall, as to every day, except Saturday, during the period specified in such notice, take effect as if seven of the clock in the morning and seven of the clock in the evening were throughout substituted for six of the clock in the morning and six of the clock in the evening re- spectively. 7. And whereas by the said secondly recited act it was enacted, that any child above eleven years of age, employed solely in winding and throwing of raw silk, and who shall have obtained the surgical certificate required by this act of his having completed his eleventh year, may work, without any proof of having attended a school, for any time not exceeding ten hours on any working day, but not after half- past four of the clock in tlie afternoon of any Saturday: and whereas it is expedient that so much of the said recited act should be repealed: be it therefore enacted, that so much of the said act as is hereinbefore recited shall be and the same is hereby repealed ; and in lieu thereof it shall be lawful for any child employed solely in the winding and throwing of raw silk, who shall have obtained the surgical certificate required by the said secondly recited act of his having completed his eleventh year, to be employed in all re- spects as young persons may be employed under this act. 8. And be it enacted, that every young person, and every female above the age of eighteen years, who shall be employed in any fac- tory, or shall be allowed to remain in any room where any manu- facturing process is then carried on in any factory, during any part of the times which by the notice then fixed up in such factory in that behalf are mentioned as the times allowed for meals, shall be deemed to be employed contrary to the provisions of the said recited acts as amended by this act. 9. And be it enacted, that the three hereinbefore recited acts as amended by this act, and this act, shall be construed together as one act, and in all respects as if the provisions hereinbefore contained had been contained in the secondly hereinbefore recited act : pro- vided nevertheless, that nothing herein contained shall apply to any offence committed under the said recited acts before the passing of this act, or to any proceedings taken under any of the said acts, and pending at the time of the passing of this act. 10. And be it further enacted, that this act may be amended or repealed by any act to be passed in this present session of Parliament. 14 & 15 VICT. c. 11. 529 14 & 15 Vict. c. 11. An Act for the better Protection of Persons under the Care and Control of others as Apprentices or Servants ; and to enable the Guardians arid Overseers of the Poor to institute and conduct Prosecutions in certain Cases {I). [20th May, 1851.] Whereas it is expedient to make provision for the better protec- tion of persons who are under the care and control of others as ap- prentices or servants : be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same : 1. That where the master or mistress of any person shall be legally Persons liable to provide for such person, as an apprentice or as a servant, '■^fusing or necessary food, clothing or lodging, and shall wilfully and without to supply" lawful excuse refuse or neglect to provide the same, or where the necefsary master or mistress of any such person shall unlawfully and mali- ^°°^ to ap- ciously assault such person whereby the life of such person shall be servanT-^ or endangered, or the health of such person shall have been or shall be unlawfully likely to be permanently injured, such master or mistress shall be assaulting guilty of a misdemeanor, and being convicted thereof shall be liable '^'^"1' S^ilty to be imprisoned, with or without hard labour, in the common gaol meanor. or house of correction, for any term not exceeding three years. 2. That the costs and expenses of the prosecution of any such Costs of pro- misdemeanor as aforesaid may be allowed and ordered by the court secution. before which the indictment shall be tried, in like manner as the costs of the prosecution in certain cases of misdemeanor under the act of the seventh year of the reign of King George the Fourth, chapter sixty-four, or may be allowed and ordered by the Court of Queen's Bench, in case the indictment shall have been removed into that court, to be paid by the treasurer of the county or other officer who would have been liable to pay under tlie order of the court in which, but for such removal, the indictment would have been tried. 3. That the guardians of every union and of every sepirate parish A register to under the management of a board of guardians, and the overseers 'j^ l^^Pt of of every parish not in union or under the management of a board son"hi'red' of guardians, shall provide and keep a book or books, and shall or taken as cause to be registered therein the name of every young person under servants the age of sixteen who shall thereafter be hired or taken as a servant ■''O'ti any r ■, ,1 ,• 1 • , , -11 workhouse. irom the workhouse oi such union or parish, together with the several other particulars specified in the schedule hereunto annexed; and every such entry shall be signed by t'le presiding chairman of such board of guardians at an ordinary meeting thereof, or by some one of such overseers ; provided that nothing herein contained shall Not to su- be taken to sui)ersede or affect the obligation to keep such register persede ob- of poor children apprenticed by overseers or guardians as is required keep'register by the statute of the forty-second year of King George the Third, as required chapter forty-six, and the statute of the eightli year of Queen Victoria, iiy 42 Geo. 3, chapter one hundred and one. 2'^"'^ y"^. 4. That where any young person under the age of sixteen shall ^ ioi_ have been or shall be hired or taken as a servant from the workhouse Young per- of any union or parish, or shall have been or shall i)e bound out as sonsliired an apprentice by the guardians of any union, or the guardians or from work- {l) See ante, ^. 130. 030 APPENUIX. houses or bound out as pauper apprentices to be visited perioilically by ollicer of guardians or overseers. As to young persons hired or bound to masters re- siding; at a distance from unions or parishes. Guardians and overseers autliorized and required to prosecute in certain cases. Costs of prosei;ution. Justice em- powered to bind over officer of guardians or overseer to prosecute. overseers of any parish, it shall be lawful for such guardians or overseers respectively, and they are hereby required, so long as such young person shall be under the age of sixteen, and shall be known to them to reside as servant or apprentice in the same service into which such young person shall have so gone as a servant from such workhouse or as such apprentice within such union or parish re- spectively, or within five miles of any part of such union or parish, to cause the relieving officer, or, where there is no relieving officer, then some other officer duly authorized for the purpose, to visit such young ])erson at least twice in every year, and to report to them in writing whether he has found reason to believe that such young per- son is not sup})lied with necessary food, or is subjected to cruel or illegal treatment in any respect, 3. That where any young person under the age of sixteen shall hereafter be hired or taken as a servant from the workhouse of any union or parisli, or shall be bound out as an ap))reiuice by the guardians of any union, or by the guardians or overseers of any parish, and the residence of the master or mistress shall be more than five miles from any part of such union or pari-^h, then a written notice of such hiring, taking or binding, specifying the name and age of the apprentice or servant, and the name, description and residence of such master or mistress, sliall be forthwith sent from such guardians or overseers to the guardians or overseers of the union or parish in which such master or mistress sliall reside ; and there- upon it shall become the duty of such last-mentioned guardians or overseers to cause the particulars contained in such notice to be registered in some book or books, to be provided by them for the purpose, together with the name of the union or parish from which such notice sliall have been received; and such last-mentioned guardians or overseers shall cause such young person to be visited as frequently and in the same manner in all respects as if such young person had been hired or taken from their own workhouse, or had been bound out as an apprentice by themselves. 6. That where any complaint shall be made of an offence against this act, or of any bodily injury inflicted upon any poor person under the age of sixteen years, for which the party committing it is liable to be indicted, and the circunjstances of which offence amount in point of law to a felony or an attempt to commit a felony, or an assault with intent to commit a felony, and two justices of the peace before whom the examination is taken shall certify under their hands that they deem it necessary for the purposes of public justice that the prosecution should be conducted by the guardians of the union or of the parish, or where there are no guardians by the overseers of the parish in which the oftence shall have been committed, such guardians or overseers, as the case may be, shall, upon personal service of such certificate or a duplicate thereof upon the clerk of such guardians, or upon any one of such overseers, conduct the pro- secution, and shall pay the costs reasonably and properly incurred by them therein (so far as the same shall not be allowed to them under any order of the court trying the indictment, or of tlie Court of Queen's Bench) out of the common fund of the union, or out of the funds in the hands of the guardians or overseers (as the case may be) of such parish. 7. That in the case of a union or parish under a board of guardians the clerk or some other officer of such union or parish, and in the case of a parish not under a board of guardians one of the overseers thereof, may, if such two justices of the (leace before wlioui the exami- nation is taken shall deem it necessary for the purposes of public 16 & 17 VICT. c. 104. 531 justice and shall certify as hereinbefore mentioned, be bound over to prosecute. 8. That the words "guardians," "union," "overseers," "jus- Interpreta- tice of the peace/' "officer," " poor," " parish" and " workhouse," t'onolierms. used ill this act shall be construed in like manner as in the act of the fifth year of the reign of King William the Fourth, chapter seventy-six. 9. That this act shall extend only to England and Wales. Extent of SCHEDULE. Form of Register. Name of Child. Age. Date of hiring or taking as Servant. Name of Master or Mistress. Trade or other descrip- tion of Master or Mistress. Residence of Master or Mistress. 16 & 17 Vict. c. 104. An Act further to regulate the Employment of Children in Factories, [20th August, 1853.] Whereas by an act passed in the fourth year of King William the Fourth, intituled " An Act to regulate the Labour of Children and 3 & 4 Will. 4, Young Persotis in Wills and Factories of the United Kingdom," and c. 103. an act passed in the seventh year of her Majesty, intituled " An Act 7 & 8 Vict, to amend the Laws relating to Labour in Factories," and an act passed '^- '^* in the tenth year of her present Majesty, intituled "An Act to limit lo & 11 Vict. the Hours of Labour of Young Persons and Females in Facto- <-". 29. ries," and an act passed in the thirteenth and fourteenth years 13&14 Vict. of her Majesty, intituled " An Act to amend the Acts relating to '^- ^^■ Labour in Factories," the labour of children, young persons and females in factories has been regulated, and by the said last recited act no young person and no female above the age of eighteen years can be employed in any factory before six of the clock of the morning or after six of the clock of the evening, save as therein otherwise pro- vided : and whereas it is expedient that children should not he em- ployed in factories at times during which young persotis and women may not now by law be employed therein : be it enacted by the Queen's most excellent Majesty, by and with the advice and consent A a2 532 APPENDIX. April, under certain regu- lations. of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, as follows : No diild to 1. After the commencement of this act no child shall be employed before'si'x in ^" ^^^ factory before six of tlie clock in the morning or after six of the morning t'^e clock in the evening of any day (save to recover lost time, as nor after six hereinafter provided), and no child shall be employed in any factory in the alter- either to recover lost time or for any other purpose on any Saturday after two of the clock in the afternoon. Power to 2. Provided always, that during all or part of the period between employ chil- ^i ■ ■ .• ,■ j r o .. i r , , /- . ,. dren iii tlie *"^ thirtieth day ot beptember of any year, and the first day of hours be- April of the following year, children may be employed in any fac- tween seven tory, except on Saturday, after six until seven of the clock of the inio^n"!^!!!,, evening, under the following regulations and conditions : (that is to jny aiiu seven '-' . . iii* /. f ,- in the even- say), notice signed by the occupier of any factory or his agent ing from 30th of the intention to employ children under this provision, specifying Sept. to 1st ^]jg period, not being less than one month, during which they are to be so employed in such factory, shall be given tooneofthe insjiectors of factories ; and a notice to the like effect, in such form as shall be approved by such inspector, and signed by such occupier or his agent, and by such inspector, shall be hung or fixed up, according to tlie directions for other notices in the said secondlv recited act, in such factory, and during the period specified in such notice, chil- dren may be employed in such factory after six of the clock and not later than seven of the clock of any day except Saturday, and during the period specified in such notice (save to recover lost time, as herein provided), no child shall be employed in such fac- tory before seven of the clock in the morning of any day except Saturday. 3. And whereas by the said act of the seventh and eighth years of her Majesty it was enacted, that in any factory in which any part of the machinery was moved by the power of water, the time which should have been lost by stoppages fn m want of water, or from too los'tTime""^ much Water, might be recovered within six months next after the after seven Stoppage between the hours specified in the said firstly recited act as those within which time loft by drought or excess cf water might be recovered, and that in order to recover time so lost any child or young person might be employed one hour in each day more than the time to which the ordinary daily labour of children and young persons respectively was restricted by law, except on Saturday : be it therefore enacted, that no child shall, in order to recover time so lost as aforesaid, be employed after seven of the clock iii the even- ing of any day ; and the times before six of the clock in the morn- ing and after six of the clock in the evening during which any such child is so employed in any day shall not together exceed one hour. 4. Nothing in this act shall be construed to authorize the employ' ment of any children in any factory for any longer time in any day than is now authorized under the said recited acts, or to interfere with or affect the provisions of the said acts as to meal times or holi- days, or any other provisions whatsoever of the said acts, save so far as the same authorize the emi)loyment of children between any other hours of the day than are limited by this act. 5. The hereinbefore recited acts, as amended by this act, and this act, shall be construed together as one act. 6. This act shall commence and take effect on the first day of September, one thousand eight hundred and fifty-three. Children not to be em- ployed under 7 & 8 Vict. c. 15, s. 36, in the even ing. Hours of employment of children not to be extended. Acts to be construed as one act. Commence- ment of act. 18 & 19 VICT. c. 108. 533 18 & 19 YicT. c. 108. An Act to amend the Law for the Inspection of Coal Mines in Great Britain. [14th August, 1855.] Whereas an act of the session of Parliament holden in the thir- 13 & 14 Vict, teenth and fourteenth years of her Majesty, chapter one hundred, <=. 100. was passed " for Inspection of Coal Mines in Great Britain:" and whereas, with a view to the safety of the persons employed in such mines, it is expedient that further provision be made for the inspec- ison and regulation tliereof : be it tlierefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parlia- ment assembled, and by the authority of the same, as follows: 1. The said act of the thirteenth and fourteenth years of her 13 & 14 Vict. Majesty shall be repealed; provided always, that the inspectors of ''• l*"*' '■^" coal mines appointed under such act shall continue to be such in- P^^'^"- spectors under this act, subject, neverthtless, to removal by one of her Majesty's principal Secretaries of State: provided also, that all penalties incurred under the said act before the repeal thereof may be proceeded for and applied as if this act had not been passed. 2. It shall be lawful for one of her Majesty's principal Secretaries Power to of State from time to time to appoint any fit person or persons to be Secretary of an inspector or inspectors of coal mines, and from time to time to ,„t'„1i?:„ , . . I • f 1 • appoini in- remove any such inspector or inspectors; and notice or the a})point- spectors of ment of every such inspector shall be published in the London mines. Gazette. 3. No person who shall act or practise as a land agent, or as a No land manager, viewer or agent, or mining engineer, or valuer of mines, or ^S"^"* o"" , • ° ■ r r 1- ^ ■ ■ 1^ 1 c ■ manager, &c. arbitrator in any matters ot dispute arising between owners of mines, of coal mine or be otherwise employed in any coal mine or colliery, shall act as an to act as in- inspector of coal mines under this act. spector. 4. The following rules (hereinafter referred to as the general General rules) shall be observed in every coal mine and colliery by the owner ''"'^^ iohe A ^\ c observed and agent thereot : in all ^^^^ 1. An adequate amount of ventilation shall be constantly produced mines. at all collieries to dilute and render harmless noxious gases to such an extent as that the working places of the pits and levels of such collieries shall under ordinary circumstances be in a fit state for working: 2. Every shaft or pit which is out of use, or used only as an air pit, shall be securely fenced : 3. Every working and pumping pit or shaft shall be properly fenced when not at work : 4. Every working and pumping pit or shaft where tlie natural strata under ordinary circumstances are not safe shall be securely cased or lined : 5. Every working pit or shaft shall be provided with some proper means of signalling from the bottom of the shaft to the sur- face, and from the surface to the bottoiri of the shaft : 6. A proper indicator to show the position of the load in the pit or shaft, and also an adequate break, shall be attached to every machine worked by steam or water power used for lowering or raising persons : 7. Every steam boiler shall be provided with a proper steam gauge, water gauge, and s;ifeiy valve. 5. In addition to the general rules, there shall be established and Special rules observed in every coal mine or colliery such other rules (hereinafter '" '"-' "''*'''^ 534 APPENDIX. for each col- referred to as special rules) for the conduct and guidance of the liery, with persons acting in the management of such coal mine or colliery, and of Secre'tary "^^ ^" persons employed in or about the same, as under the particular ofState. state and circumstances of such coal mine or colliery may ajipear best calculated to prevent dangerous accidents : and such special rules for each coal mine or colliery shall be framed by the owner thereof, and forthwith transmitted to one of her Majesty's principal Secretariesof State; and such rules, if notobjccted tobysuch Secretary of State within forty days from the day upon which they are received by him, shall be established; and in case such Secretary of State shall be of opinion that such rules or any of them do not sufficiently provide for the safety of the person or persons employeil in or about such coal mine or colliery, it shall be lawful for such Secretary of State, within the forty days aforesaid, to proj)ose any alterations in or additions to such special rules ; and in case such owner shall not within twenty days from the day on which such alterations or addi- tions are proposed to him object to the same, the special rules shall be established v\ith such alterations and additions ; and in case such owner shall, within the said twenty days, object to such alterations or additions, or any of them, it shall be lawful for such owner, within seven days after he shall have so objected, to nominate three or more practical mining engineers, or other competent persons of experience in the district within which such coal mine or colliery is situate, and who shall not be interested in or employed in the management of such coalmine or colliery, of whom such Secretary of State may ap- point one or more, to determine the matter in difference, and to decide what special rules shall be established in such coal mine or colliery ; and if such owner shall not within such seven days nomi- nate such mining engineers as aforesaid, or if such Secretary of State shall not within one month from the time of such nomination ap- point one or more of the persons so nominated by the owner as aforesaid, then and in such case two such mining engineers or other competent persons as aforesaid shall be appointed, one of whom shall be named by the owner of such coal mine or colliery, and one by the Secretary of State ; and the said persons so appointed shall, before they proceed to determine the matters in difference, and to decide what special rules shall be established in such coal mine or colliery, appoint a third person, being such mining engineer or such other competent person as aforesaid, to be their umpire in case of differ- ence of opinion between them ; and the determination of such per- sons and the said umpire, or of any two of them, shall be final, and the special rules shall be established accordingly: provided, that after such rules are established it shall be lawful for the owner of any coal mine or colliery (or for the Secretary of State) to propose from time to time any amendments of such rules, whicli amendments, if not objected to by the Secretary of State within the time aforesaid, or owners, as the case may be, shall be established ; and in case of objection being made to any of them, and of a difference arising out of such objection, the same proceedings shall be had respecting them as hereinbefore provided in reference to the special rules when originally submitted to such Secretary of State, and objected to: pro- vided also, that the ai.nount of jiayment to be made to all such per- sons, and to such umpire so nominated or appointed as aforesaid, for their services, shall be fixed by such Secretary of State, and paid in equal moieties by such owner and the commissioners of her Ma- jesty's Treasury, who are hereby authorized to make such payment accordin-ily. 18 & 19 VICT. c. 108. 535 6. For the purpose of making- known the general rules and special Publication rules to all persons employed in or about each coal mine or colliery, of rules. the owner thereof shall cause the general rules and the special rules for such coal mine or colliery to be painted on a board or printed upon paper to be pasted thereon, and shall cause such board to be hung up or affixed on some conspicuous part of the principal office or place of business of the coal mine or colliery ; and the general rules and special rules so painted or printed and hung up shall be renewed and restored with all reasonable despatch as often as the same or any part thereof may be defaced, obliterated or destroyed ; and a printed copy of such general and special rules shall be sup- plied to all persons employed in and about the same. 7. Itsliall be lawful for any inspector to enter, inspect and examine Powers and any coal mine or colliery, and the works and machinery belonging ^"''^^tors thereto, at all reasonable times and seasons, by day or night, but so as not to impede or obstruct the working of the said coal mine or colliery, and to make inquiry into and touching the state and con- dition of such coal mine or colliery, works and machinery, and the ventilation of such mine or colliery, and the mode of lighting or using lights in the same, and into all matters and things connected with or relating to the safety of the persons employed in or about the same, and especially to make inquiry whether the provisions of this act are complied with in relation to such coal mine or colliery ; and the owner or agent of such coal mine or colliery is hereby re- quired to furnish the means necessary for such entry, inspection, examination and inquiry; and if such inspector find any of the general rules or any of the special rules established for such coal mine or colliery to be neglected or wilfully violated, such inspector shall forthwith give notice in writing thereof to the owner or agent of such coal mine or colliery ; and if such inspector find any part of such coal mine or colliery, works or machinery, or any aircourses, airdoors, waterways, drains, pits, levels, shafts or other matter or thing in or connected with such coal mine or colliery, or the mode of lighting or using lights in the same, to be otherwise dangerous or defective, so as in his opinion to threaten or tend to the bodily injury of any person employed in or about such coal mine or colliery, such inspector shall thereupon, by notice in writing, summon before him at the colliery office the manager or principal colliery viewer or agent having charge of the said coal mine or colliery, in order to his being heard upon the matter giving rise to such finding as afore- said ; and if such manager or principal colliery viewer or agent do not attend after reasonable notice, or having attended fail to satisfy such inspector, then such inspector shall serve notice in writing of the particular grounds on which he is of opinion that the said coal mine or colliery or any part thereof, or any otlier of the particulars above mentioned, is dangerous or defective on the owner or agent thereof, and shall also report the same to one of her Majesty's principal Secretaries of State, and in case of any difference arising thereupon the same shall be determined in the manner herein- before provided with respect to proposed alterations or additions to the special rules, and a copy of such notice in case of no such difference as aforesaid, or of the determination in case of such differ- ence arising, shall, if the said danger or defect be not fortiiwith removed or remedied, and if the Secretary of State shall so direct, be hung up or affixed on some conspicuous part of the principal office or place of business of the coal mine or colliery, and a copy supplied to every workman to whom such notice or determination sliall ap])ly, such copy so to be hung up or affixed as aforesaid to be removed 536 APrENDIX, Owners of coal mines to produce maps or plans of mines to inspector. If owners do not produce maps, &c., inspector may require them to be made. Notice of accidents in mines to be given to Secretary of State. on the certificate of the inspector of the district, or of the persons by whom such deterniiiiation sliall have been made, that sucli danger or defect has been removed or remedied : provided always, that so long- as any copy of such notice or determination purporting that the coal mine or colliery, or any part thereof, or any otlier of the par- ticulars above mentioned, is dangerous or defective, shall remain so hung up or affixed, and the danger or defect notified therein shall not be removed or remedied, it shall be lawful for any person em- ployed in or about such coal mine or colliery to discontinue his service in any part of such coal mine or colliery to which part the said notice or determination shall apply, without being therefore liable to be proceeded against under the act passed in the fourth year of the reign of his late Majesty King Geoige the Fourth, chapter thirty-four, as for absence from his service, or misconduct in the execution thereof: provided also, that unless the owner or agent on whom the notice is served as aforesaid shall within seven days of such service signify to the said insj)ector his objections to the same, and at the same time nominate three competent persons as hereinbefore provided in the fifth section, with a view to the de- termination of such objection, such notice shall be considered good and valid, and shall be hung up or affixed as hereinbefore pro- vided. 8. The owner or agent of every coal mine or colliery shall, on the occasion and for the purpose of the inspection and examination thereof, produce and submit for examination to any such inspector as aforesaid, a map or plan of the workings of such coal mine or colliery, upon which map or plan shall be delineated the several parts, aircourses, airdoors, waterways, drains, pits, levels and shafts in and connected with such coal mine or colliery ; and if such owner or agent do not produce and submit for examination as aforesaid such a map or plan as aforesaid, or if any such inspector as aforesaid find that any portion of any map or plan is withheld, or any part of the workings of any such mine or colliery is concealed from his in- spection, or if he find, on examining and verifying any map or plan, that the same is imperfect or inaccurate, he is hereby empowered to require that an accurate map or plan of the actual workings of such coal mine or colliery, and the works thereto belonging, clearly de- lineating such matters and things as aforesaid, be made within a reasonable time, by and at the expense of the owner of such mine, on a scale of not less than two chains to one inch, or on such other scale as the plan then used in the colliery is constructed on ; and every such map or plan as aforesaid shall show the workings of the mine up to within six months of the time of inspection ; and the owner or agent of the coal mine or colliery shall, if required so to do by any such inspector as aforesaid, mark or cause to be marked on such map or plan the progress of the workings of the coal mine or colliery up to the time of his inspection thereof: provided, that nothing herein contained shall be construed to authorize any inspec- tor to make a copy of the whole or any part of a map or plan which shall be produced or made. 9. If and when loss of life to any person employed in or about any coal mine or colliery occurs by reason of any accident within such coal mine or colliery, or any pits or shafts thereof, or any works or machinery connected with such pits or shafts, or if any serious personal injury arises from explosion therein, the owner or agent of such mine or colliery shall, within twenty-four hours next after such loss of life, send notice of such accident, under the hand of such owner or agent, to one of her Majesty's principal Secretaries of State, 18 & 19 VICT, c. 108. 637 and in Scotland to the Lord Advocate, and in all cases to the in- spector of the district within which such loss of life {a) shall occur, and sliall specify in such notice the probable cause of sach accident, and such notice may be sent through the post office, by letter ad- dressed to such Secretary of State or Lord Advocate, and to the inspector of the district at his usual place of residence : and every owner or agent who neglects to send or cause to be sent such notice as aforesaid within the time aforesaid shall for such offence be liable to a penalty of not less than ten pounds and not exceeding twenty pounds. 10. Every coroner holding an inquest upon the body of any per- Provision for son whose death may have been caused by any such accident as g'^'"S notice aforesaid shall (unless some person be present on behalf of one of ofsf^teof her Majesty's principal Secretaries of State to watch the proceedings holding in- at such inquest, or notice of such accident shall have been sent, four quests on clear days at the least previously thereto, through the post office, by accidents"in letter addressed to one of such Secretaries of State, and the sending coal mines. of the same be proved to the satisfaction of the coroner), adjourn such inquest, and by letter sent two days at the least before holding such adjourned inquest, through the post office, addressed to one of such Secretaries of State, give notice to such Secretary of State of the time and place of holding the same : provided always, that it shall be lawful for such coroner, before the adjournment of any such inquest, to take evidence to identify the body, and to order the interment thereof. 11. If after the thirty-first day of December one thousand eight Penalties hundred and fifty-five any coal mine or colliery be worked, and, agaUist"tlfis through the default of tlie owner thereof, special rules have not act. been established for the same, according to the provisions of this act, or the general rules, or the special rules for such coal mine or col- liery, by this act required to be established, have not been hung up or affixed, or have not, after obliteration or destruction, been re- newed or restored, as required by this act, or any of such general rules or special rules which ought to be observed by the owner and principal agent or viewer of such coal mine or colliery be neglected or wilfully violated by any such owner, agent or viewer, such per- son shall be liable to a penalty of not exceeding five pounds, and also, in case the default or neglect be not remedied with all reason- able despatch, after notice in writing thereof given by an inspector to the owner or agent of such coal mine or colliery, to a further penalty of not exceeding one pound for every day during which the offence continues after such notice ; and every person, other than aforesaid, employed in or about a coal mine or colliery, who neglects or wilfully violates any of the special rules established for such coal mine or colliery, shall for every such offence hs liable to a penalty not exceeding two pounds, or to be imi)risonett, with or with- out hard labour, in the common gaol or house of correction for any period not exceeding three calendar months, or to be proceeded against and punished according to the provisions of the act fourth George the Fourth, chapter thirty-four, intituled " An Act to enlarge 4 Geo. 4, the Power of Justices in determining Complaints between Masters '-■•"*■*• and Servants." 12. Every owner or principal agent of any coal mine or colliery Penalty for who refuses or neglects to produce, as hereinbefore required, a map obstrueting , ., °, . i ,,.' . , c ■ V inspectors. or plan of the workings of a colliery to any inspector, or to turnish (a) When an accident in a victed under this section for not mine is not attended with loss of sending the notices required by life, hut on\y with personaliiijiiri/, it, Underhill v. Longridge, 29 the owner, &c., cannot be con- L. J., M. C. 05. A A 5 638 APPENDIX. Penalty for defacing notice used for such publication. Penalties, how recover- able. Certified copy of spe- cial rules to be evidence. Reports of inspectors to be laid before Par- liament. Interpreta- tion of terms, " Owner." " Agent." " Inspector.' " District." Extent of act. Term of this act. to said inspector the means necessary for making any entry, inspec- tion, examination or inquiry under this act, anil every person who wilfully obstructs any inspector in the execution of this act, shall, for every such offence, be liable to a penalty of not less than five pounds and not exceeding ten pounds. J3. Every person who pulls down, injures or defaces any notice hung up or affixed as required by tiiis act shall for every such of- fence be liable to a penalty of not exceedipg forty shillings. 14. All penalties imposed by this act may be recovered in a sum- mary manner before two justices of tlie peace, or in Scotland before the sheriff having jurisdiction in the county or place where the offence is committed, within three months of the commission of the same, in the manner prescribed by the law in that behalf; and it shall be lawful for the commissioners of her Majesty's Treasury, upon the recominendation of one of her Majesty's principal Secre- taries of State, to direct that any penalty imposed for neglecting to send or cause to be sent notice of any accident, as required by this act, shall be ])aid to or among any of the family or relatives of any person or persons killed by such accident, as he may think fit ; and, save as aforesaid, all penalties imposed by this act shall, when re- covered, be paid, for the use of her Majesty, to the sherift'or other proper officer of the county, riding, division or place for which the justices or otiier competent authority before whom the penalty is recovered shall have acted. 15. A copy of the special rules for the time being established in any coal mine or colliery, certified under the hands of one of the inspectors to be a copy of the special rules established in such coal mine or colliery, shall be evidence of such special rules, and of their being duly established under this act, without fjrtlier proof. 16. Every inspector shall on or before the first day of March in every year make a separate and distinct report in writing of his pro- ceedings during the preceding year, and shall transmit the same to one ot her Majesty's principal Secretaries of State, and a copy of suclt report shall be laid before both houses of Parliament. 17. In the construction of this act the term "owner" of a coal mine or colliery shall mean the immediate proprietor, lessee or occupier of a coal mine or colliery, or of any part thereof; and the term " agent" of a mine shall mean any person having on behalf of the owner of any mine the care or direction thereof; and the term "inspector" or " inspectors" shall respectively mean an inspector or inspectors of coal mines appointed under the said act of the thir- teenth and fourteenth years of her Majesty or this act; and the term "district" shall mean that portion of Great Britain which shall be assigned to any one of such inspectors. 18. This act shall not extend to Ireland. 19. This act shall continue until the expiration of five years after the passing of this act, and thenceforth until the end of the then next session of Parliament. 7 & 8 Vict. c. 15. 19 & 20 Vict. c. 38. An Act for the further Amendment of the Laws relating to Labour in Factories. [30th June, 1856.] Whereas an act was passed in the session of Parliament held in the seventh and eighth) ears of her present Majesty's reign, chapter fifteen, intituled "An Act to amend the Laws relating to Labour in 19 & 20 VICT. c. 38. 639 Factories:" and whereas by section twenty-one of the said act it was amongst other things enacted, tliat all parts of the mill- gearing in a factory should be securely fenced ; and by section forty-three of the said act provision was made for referring to competent persons as arbitrators all questions relating to machinery which an inspector or sub- inspector might observe in a factory not securely fenced, and which he might deem to be likely to cause bodily injury, and of which he should give notice to the occupier of a factory ; and by sections fifty-nine and sixty certain penalties are incurred for not fencing such machinery, and for any accident arising from such non- fencing, and for any disobedience of the notice given by such in- spector or sub inspector : and whereas doubts have arisen as to the true construction of the said several sections ; and it is expedient that such doubts should be removed, and that the aforesaid provision of the said act should be explained and amended : be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and com- mons, in this present Parliament assembled, and by the autliority of the same, as follows : 1. This act may be cited for any purpose as "The Factory Act, Short title. 1856." 2. This act shall commence and take effect on and from the first Commence- day of June one thousand eight hundred and fifty-six. "i^"' of act. 3. The said recited act and this act shall be construed and exe- Recited art cuted as if they were one act. and this act 4. The said section twenty-one, so far as the same refers to the '" ^^ °"'^' mill-gearing, shall apply only to those parts thereof with which ^'^'^'- 21 to children and young persons and women are liable to come in contact, mm-geari^n°° either in passing or in their ordinary occupation in the factory. liable to 5. The word "machinery" in the said section forty-three shall be come into considered as applicable to and including all other parts of the mill- '^""'^C' ^'<'- gearing in a factory with which children and young persons are not The word liable to come in contact in passing or in their ordinary occupation iJ'^grt^^ip in the factory ; and the word " machinery,"' in the twenty-fourth, to extend to forty-second, fifty-ninth, and sixtieth sections of the said act shall other mill- be considered as applicable to and as including mill-gearing. gearmg. 6. Where, under the said section forty-three as amended by this Penalty for act, an inspector or sub-inspector gives notice in writing to the "^^ ('^"'^'"S occupier of a factory or his agent in relation to any part of the afjgj. notice, machinery or any driving strap or band not securely fenced which such inspector or sub-inspector deems likely to cause bodily injury to any person employed in the factory, if the occupier of such factory do not within the time in this behalf limited by the said section make application in writing for referring the question of the fencing of the machinery, strap or band to which the notice refers to arbi- tration, and with the least possible delay appoint an arbitrator, or if the decision in any such arbitration be that it is necessary and possible to fence the said machinery, strap or band, the occupier of the factory shall be liable to a penalty of not less than five pounds and not more than twenty pounds if he do not within a reasonable time after such notice or decision (as the case may be) cause such machinery, strap or band to be well and securely fenced, and at all times thereafter keep the same well and securely fenced. INDEX. *»* The figures refer to the pages. ACCOUNT, servant bound to account to master, 74. ACTION BY Master v. Servant, for refusing to serve, 71. leaving too soon, 72. gross negligence, 72. indemnity from consequences of servant's negligence, 73, not accounting, 74. fraud or misfeasance, 73. not for accident, 73. or soliciting future custom from master's customers, 73. for money had and received, 75. servant cannot set up^'u* tertii, 74. presumption of payment Irom course of dealing, 75. after conviction for embezzlement, 315. Master v. Third Person, for enticing away servant, 87. harbouring servant, 89. servant's earnings, 90. personal injuries to servant, 96. seduction of female servant or child, 98. Servant v. Master, for refusing to receive him, 104. wrongful discharge, 108. wages in such case, 108. wages, 113. And see Wages. not supplying food and medicine, 130. indemnity from consequences of obeying master's orders, 133. Servant v. Third Person, for loss of his luggage, where master paid carriage, 242, n. (<). Third Person v. Master, upon contracts of servant, 154. when made in servant's name, 164. warranty of servant, 161. for torts of servant, 183. Third Person v. Servant, upon contracts made in his master's behalf, 222. bills of exchange, 223. 642 INDEX. ACTION BY Third Perso7t v. Servant — (continued.) for money paid to servant on account of his master, 227. if ])aid over to his master, 229. if jiaid by mistake and not paid over, 232. for money given to servant by master to be paid to tliird person, 234'. for money obtained wrongfully by servant, 230. for torts of servant, 2'H. misfeasance, 241. nonfeasance, 242. ■ fraud, 246. ADMISSION, of liability, effect of when made by master, 157. not always an estoppel, 157. by servant when not binding on master, 163. AFFIDAVITS, on return to habeas corpus, 342. in support of rule to remove conviction under Truck Act, how intituled, 419. AGENT. See Servant. signature of agreement by, 28. APPORTIONMENT, act does not apply to cases of hiring and service, 126. APPRENTICE, contract of hiring and service by, 2. infant may bind himself, or take, 7. not liable on covenants, 7, n. (a), povver of master to correct, 76. not discharge, 76, n. (z). disputes between, and their masters, 325. or servant, 44. parish apprentices, 8, n. (/). bound to sea service, ib. to watermen, &c., on the Thames, ib. under General Merchant Seamen's Act, ib. to chimney-sweeps, ib. servant inducing apprentice to leave master, 73. neglecting to supply with sufficient food, 130. is a servant witliin statutes of embezzlement, 300. power of justices to discharge, 328 — 378. order clothes to be given up and return of pre- mium, 328, n. order payment of wages to, 332. punish, 329, 330. ARBITRATION, of disputes between masters and servants, 342. what disputes may be referred, 342. appointment of referees, 343. meetings and proceedings of arbitrators, 345. award, how enforced, 349. ARTIFICER, who is, within Truck Act, 31. ASSAULT, by servant on master, 280. in pursuance of conspiracy to raise wages, 280. admission to bail of servant charged with, 280, n. (/). INDEX. 543 ASSIGNEES, of insolvent or bankrupt not entitled to wages of his personal labour, 19. entitled to stipulated penalty for not employing bankrupt, 19. ATTORNEY, to corporation can only be appointed by deed, except in London, 11. AUTHOR, within Dramatic Copyright Act, who is, 93. of articles in periodicals, &c., 94. composer of music, employed by manager, 95. AUTHORITY. And see Liability. of servant, rule as to extent of implied, 157. AWARD. See Arbitration. form of, when disputes referred to arbitration, 349. BAIL, justices have discretion in admitting to, persons charged with assault in pursuance of conspiracy to raise wages, 280, n. (/). BANKRUPT, contracts of hiring by, 19. may sue for wages for his own personal labour, 19. but not for liquidated damages on bieach of contract to employ, 19. when liable to gay wages after bankruptcy, 20, 121. BANKRUPTCY OF MASTER, provisions of Bankrupt Act for wages of clerks and servants, 121. labourers and workmen, 125. practice previous to 6 Geo. 4, c. 10, s. 48. . 121. service, to come within the act, must be under a contract, 122. what contracts within the act, 123. not within it, 124. out of what money wages to be paid, 125. where disj)ute referred to arbitration under 5 Geo. 4, c. 96 . . 348. BILL OF EXCHANGE, liability of servant upon, when drawn on behalf of master, 223. master on, when drawn by servant, 160. after discharge, 173. BOARDING-HOUSE KEEPER, liability of, for servants' acts, 204. BOARD WAGES, domestic servant not entitled to, when discharged with a month's wages. See Addenda to p. 52. BURGLARY, by servant in master's house, 280. CAPIAS, against runaway servants or apprentices, 380. CARRIER, liable for acts of servant, 185. by land, limitation of liability, 185, n. (/). water, 186. liable to servant for loss of his luggage, though master paid the fare, 242, n. (0. 544 INDEX. CERTIFICATE. See Bankrupt. of third person when necessary to entitle servant to wages, 117. to prevent settlement, 376, n. (e). CHARACTER, 249. And see Seduction. master not bound to give discharged servant any, 249. when he does, communication privileged, 2-i9. no action lies for false character unless maliciously given, 250. mere falsehood not suthcient to sustain action, 250. nor that facts consistent with malice, 252. cases showing malice, 252. facts not showing malice, 257. part privileged, part not, 260. privilege threefold, 1. Communications made in discharge of public duty, 2G1. in course of judicial proceedings, 261. 2. In discharge of private duty, 262. master to friend of servant, 263. other servants, 259, 264. tenant to landlord respecting his servant, 264. stranger to master, 265. directors' report, 266. 3. Cases in which interest is concerned, 267. Complaints made to master with a view to redress, 267, 268. where communication privileged, presence of third party does not make it less so, 269. when not privileged, 271. And see Slander. making indorsement upon servant's written character, 274. liability consequent on giving false character, 275. CHASTISEMENT, of servant, 76. COAL MINES, inspection of, 533. COHABITATION, agreement for, void, 27. COIN, and bank notes, may be described as money in indictments, 296. COLLABORATEURS, who are, 144. COLLECTOR of poor rates, servant of inhabitants, 302. COLONIES, contracts for service in, exempt from stamp, 29. COMBINATION, amongst masters and workmen, 352. mere combination to raise or lower wages not illegal, 357. when it becomes so, 357. bond illegal, 58. COMMERCIAL TRAVELLER, what notice entitled to, 53. COMMISSION, remuneration of servant by, does not make him a partner, 34. COMMISSIONERS. See Public Officers. when not liable for acts of persons obeying their orders, 215. INDEX. 545 COMMITMENT, of servant under 4 Geo. 4, c. 34 . . 339. should agree with conviction, 341. CONDITIONAL, hiring not less yearly because, 48. CONSIDERATION, must appear in contracts of hiring within Statute of Frauds, 25. when necessary to support agreements in restraint of trade, 66. courts will not inquire into adequacy of, 27, 66. must not be illegal, ib. CONSPIRACY, to dictate to master what workmen he shall employ, 359. to reduce or raise wages, 360. to persuade workman to leave master, 87. to ])revent master taking apprentices, 360. to depart from service no good reason for discharging servant, un- less acted on, 105. to induce workmen to absent themselves from service, 87. what is a, 360. CONTRACT, liability of master upon contract of servant, 154. servant upon contract entered into for his master, 222. CONTRACT OF HIRING AND SERVICE, parties to the contract, 1. servant must be sui juris, or hiring would not confer a settlement, 1. by married women, 3. infants, 6. lunatics, 9. partners, 9. corporations, 11. bankrupts and insolvents, 19. requisites of, at common law, 21. writing, when necessary — Statute of Frauds, 21. in cases under 4 Geo. 4, c. 34.. 335. stamp, 29. construction of, parol evidence, when admissible to explain written contract, 32. partner or servant, inter se, 35. in criminal cases, 39. as regards third persons, 40. apprentice or servant, 44. tenant or servant, 45. effect of general liiririg, 46. master may not be bound to find employment, though bound to pay wages, 54. Courts disposed to imply contract to find work, 56. agreements in restraint of trade in, 57. general restraint, 57. partial restraint upheld in some cases, 60. what reasonable, 65. jiartly good and partly bad, 68. injunction to enforce, 69. CONTRACTOR, person employing, not generally liable for acts of his servants, 200. but may render himself liable, 203. head contractor not liable to sub-contractor's workmen for injuries, 141. 546 INDEX. CONVICT, contract of hiring by wife of, 5. CONVICTION, of servant, when exemption of master, 182. if fraudulent, quashed, 182. under 4 Geo. 4, c. 34. .339. CORPORATION, servants to, in general, must be appointed by deed, 11. so attorneys, except in London, 11. exception in cases of inferior servants, 13. tryding corporations. 15. under Companies Clauses Consolidation Act, 16. Joint Stock Companies Act, 1 1. power to appoint servants without seal only applies to ordinary servants, 18. liable in tort for acts of servant, though not appointed by deed, 13. CORRECTION, of servant by master, 76. CRIMINAL, responsibility of master for acts of servant, 174. of servant for acts done by command of master, 234. contributory negligence no answer in criminal cases, 241. And see Offences. CUSTOM, evidence of, admissible to explain contract, 32. CUSTOMERS, contract not to solicit masters, 67. servant not liable for soMcking future business from master's, 73. CUSTOMS, bond by infant servant of, 8, n. (h), DAMAGES, in action for wrongful discharge, 112. seduction, 103. DEATH, of master, discharges servant, 125. revocation of servant's authority to pledge master's credit, 173. of servant, 97. DEBAUCHING, female servant, 98. And see Seduction. DEED, hiring by. Statute of Frauds does not apply to, 24. DEFAMATION, 249. DEPUTY CLERK OF PEACE, liability of, for negligence of assistant, 215, n. (o). DISCHARGE, of servant, what causes will justify, 76. wilful disobedience of lawful orders, 77. gross moral misconduct, 78. habitual negligence in business, &c., 79. incompetence, or permanent disability from illness, 83. wages on. See Wages. DISTANCE, how measured in construing contracts in restraint of trade, 63. INDEX. 647 DOMESTIC SERVANTS, entitled to month's warning or month's wages, 52. magistrates have no jurisdiction over, 330, 336. who are " servants on domestic establis.iment," 363. not within Truck Act, 423. DROVER, by trade, is not a servant, 200, n. (i), 294. but a bailee, 288. embezzlement by, 294. DRUNKENNESS, discharge of servant for, 79, 81. DUTY, of servant to master, and master's remedies, 71. of master to servant, and servant's remedies, 104. to indemnify servant, 133. as to character, 249. food, 130. medicine, 131. wages, 113. DYERS, embezzlement, &c., of drugs by dyer's workmen, 403. EARNINGS, of servants, master entitled to, 90. EMBEZZLEMENT, by clerks and servants, 284. And see Larceny. distinction between larceny and, 284. person indicted for one may be convicted of the other, 285, 315. servant misappropriating property which has iiever beei in master's possession, embezzlement, 298. punishment of, 299. what must concur to constitute the offence, 300. who is a servant within the statute, 300. who is not, 303. servant receiving money without authority to do so not within the act, 304. aliter, if employed to receive it, though on one occasion only, 305. or from particular class of customers, 306. embezzlement of money received from master, larceny, 307. from master's agent to be paid to master, embezzlement, 308. of change by servant sent to get change, 308. refusal to account must be sliown, 309. omission to account not sufficient, 309. even after promise to do so, 309, 310. utdess wilful, 309. leaving situation and absconding, evidence of embezzlement, 309. claim of right to money no embezzlement, 310. some specific sum must be proved, 310. no objection that master had no right to money, if received for him, 312, 313. aliler, clerk of illegal society, 313. receipt need not be stamped, to prove embezzlement, 313. indictment, 313. particulars, 314. by persons employed in public service, 316. by servants of the liank of England, 319. Ireland, 320. South Sea Company, 320. 548 INDEX, EMBEZZLEMENT— (conHnued.) by servants of the Post Office, 320. of postage of letters, 321. wlio is a servant of Post Office, 322. what is a "post letter," 322. ENTICING, servant from master, action for, 87. ENTRY, by deceased clerk in master's book, evidence, 163. EVIDENCE, parol, when admissible to explain contract, 32. entry by deceased servant, 163. of acting as servant, when sufficient, 1, n. (a). EXCEPTIVE HIRING, not yearly hiring, if express, 49. aliter, if merely implied by custom, 50. EXECUTORS, of master liable to pay servant's wages, 126. FACTORY, acts relating to, xxxviii. FALSE CHARACTER, consequence of giving, 275. uttering forged testimonial, forgery, 275. FALSE PRETENCES, by guilty master by means of innocent servant, 175. obtaining goods from servant by, is taking from master, 286, n. (/O- FARM BAILIFF, implied authority of, 171. what warning entitled to, 52. entitled to legacy as a servant, 362. FEES, under 5 Geo. 4, c. 96—350. FELLOW-WORKMEN, who are, 144. FELONY. See Larceny, Stealing, &c. FERRY, master liable for invasion of, by servant, 187. FIDELITY, bonds given to partners, 10. FIRE, liability of master for fire caused by negligence of servant, 185. servant for negligently firing master's house, 281. wilfully doing so, 281, n. {n). FOOD, liability of master to supply, 130. parish, 132. FORGED CHARACTER, 275. FORGERY, by master, by means of innocent servant, 175. servant intrusted with money to pay bill, foi-ging receipt, 282, n. {v). 549. FRAUD, liability of master for servant's fraud, 188. of servant to master for fraud, 73. for his own fraud, 246. FRAUDS, STATUTE OF, what contracts of liiring and service are within, 21. not within, 23. requisites of, — consideration must appear, 25. signature, 28. FRAUDULENT, conviction of servant quashed, 182. GARDENER, is a menial servant, 52. GENERAL HIRING, effect of, 46. GOVERNESS, what notice entitled to, 52. HABEAS CORPUS, for servant convicted under 4 Geo. 4, c. 34.. 341, HARBOURING, a servant, 89. HIRING. See Contract. hours of work limited, hiring not yearly, 50. ILLEGALITY, parol evidence admissible to show, 27. ILLNESS, of servant when ground of discharge, 83. parish liable to find medicine, 132. IMMORALITY, when ground of discharge, 78. IMPLIED CONTRACT, Statute of Frauds does not apply to, 24. when contract of hiring implied, 47. yearly hiring, 47. to pay wages. See Wages. INDEMNITY, how far master bound to indemnify his servant, 132. servant his master, 73. INDICTMENT, will not lie for enticing away servants, 87- will for conspiracy, 87. for embezzlement, 313. three counts, when advisable, 314. of master for stealing by hands of servant, 176. for nuisance committed by servant, 181. INFANT. And see Apprentice. liable upon contracts beneficial to him, 6, 7. what contracts of hiring are beneficial to him, 7. for necessaries, 7. livery for servant to officer in the army necessaries, 7. 550 INDEX. INFANT— (continued.) may recover wages in County Court, 8. give bond under Customs Regulation Act, 8. proceed under 5 Geo, 4, c. 96, in name of parent, &c., SiS. power of master to chastise, 76. employment of, in mines and collieries, 8, n. (i), 440. in factories, ib., xxxviii. in print-works, ib., xli. INFORMATION, for penalties against master for act of servant, 178. INJUNCTION, not granted to enforce contract of hiring, 72, 106. to restrain breach of covenant in restraint of trade, 69. master from dismissing servant, refused, 106. INNKEEPER, liable for refusal by servant to receive guest, 182. INSOLVENTS, contracts of hiring by, 19. INVENTION, of servant, when master may take out patent for, 92. JOB, servant hired by, not servant within Bankrupt Act, 124. not yearly servant, 49. with carriage, not servant of hirer so as to render him lia- ble, 198. nor within 7 & 8 Geo. 4, c. 29, s. 46 . . 199, n. (e). nor entitled to legacy as servant, 362. JUS TERTII, when servant may set up, in opposition to master, 74, 75. JUSTICES OF THE PEACE, jurisdiction of, in disputes between masters and servants, 325. in trade, 329. what contracts of hiring are within the jurisdiction of, 336. not within, 336. menial servants not within, 336. form of order, conviction or warrant by, 339. may hear complaints against servants, and punish them, 327, 330, 333. may hear servant's complaint and summon master, 326, 328. in master's absence, 334. may issue warrant against artificers to compel attendance, 330. ' power to order payment of wages, 327. arbitration of disputes by, 342. master not to act on SLich arbitration as, 347. nor under 6 Geo. 4, c. 1 29 .. 357. LABOURERS, agreements for hire of, exempt from stamp, 29. recovery of wages in case of bankru))tcy of master, 125. who are within 20 Geo. 2, c. 193.. 326. Stamp and Truck Acts, 326, n. (/), 423, n. (ot). LAPSE OF TIME, presumption of payment of wages from, 120. presumption of revocation of servant's authority from, 174. INDEX. 551 LARCENY BY SERVANTS. And see Embezzlement ; Stealing. distinction between larceny and embezzlement, 284. what is larceny, 284, n. (z). at common law, 285. where servant has bare custody, 285. other cases, taking goods out of master's possession, though constructive only, 286, 287. offering master his own goods for sale, 291. giving away master's property, 289. appropriating property found in master's house, 290. where master parts with possession as well as custody, felonious intent at time of receipt necessary to constitute larceny, 293. punishment of larceny by servants, 296. who is servant, 297. three in six months, 295. servant indicted for, may be convicted of embezzlement, 315. LEGACY, by master to servant, 361. what servants entitled to, 361. how far satisfaction of wages, 366. LIABILITY. And see Action. of master to indemnify servant, 133. one servant for injuries caused by fellow-servant, 134, 221. of master to third person for acts of servant, 154. upon contracts, 154. although servant incapable of contracting for himself. 154, express authority to servant in writing, 155. writing should be inspected, 169. letters of instruction need not, 169. verbal, 155. implied authority, extent of, 157. cannot be extended to collateral transactions, 162. nor is it increased by emergency, 164. termination of, by notice, 173. lapse of time, 174. master not bound if servant had no authority to pledge his credit, 170. nor if credit given to servant, 172. effect oi' private orders to servant on master's liability, 166. distinction between general and sjjecial agent, 165. implied general authority cannot be limited by private orders, 166. effect of notice of private orders, 168. where servant s/jcaa/ agent, his authority must be inquired into, 168. so where parties have notice that he is special agent, 169. servant without precise authority has all usual powers, 161. warranty by servant entrusted to sell, 161. of master for torts of servant, crirninaliler, master not generally liable, 174. exceptions in cases of express orders, 174. implied orders, 176. libel, 176. actions for penalties, 177. informations for jjenalties, 178. indictments for nuisances, 181. master only liable for breach by servant of public duty, binding on master, 183. 552 INDEX. LIABILITY— (coH/;««f(f.) civiliter, master generally liable for torts of servant in course of his em- ployn)ei\t, 183. although he do not imuieiliately appoint the servant, 188. or servant's act not necessary to perforin his orders, 190. and for all consequences, 192. and thougli damage immvcliately caus(d by stranger, 192. but not if servant go beyond scoj)e of his employment, 193. nor if person injured miglit, by care, have avoided consequences of servant's negligence, If).*), for which purpose servant of person injured is identified with him, 195. driver of public conveyance with passenger, 196. alHer, if person injured incapable of exercising care, 198. nor for acts of another person's servant, as in case of hired car- riage, 198. or where contractor employed, 200. though in such cases lie may make himself liable, 203. nor where bound by law to employ particular servant, 205. oilier, if he have power of selection, 20fJ. of master for tresjiass of servant, 207. if command express, master liable whether present or not, 208. so if trespass necessary consequence of obeying express com- mand, 208. or if done in pursuance of general orders, 208. or for the benefit of, and adopted by master, 209. if trespass committed by servant without master's orders, master may be liable if present, 209. master not liable in trespass if his will do not concur in ser- vant's act, 210. master liable in trespass for act of one not his servant, 213. public officers not liable for inferior officers, 213. liable for their own servants, 215. master not liable to one servant for negligence of another, 134. of servant to third person for acts done on behalf of his mas- ter, 222. servant not generally liable upon contracts, 222. but may be, 222. how to avoid liability, 223. clerk signing master's name not liable upon the instru- ment, 227. where he is liable parol evidence not admissible to dis- charge him, 223. servant not generally liable to third person for money paid to him on account of his master, 227. where he has paid it over, 229. but may be, if he obtain the money wTongfully, 230. or by trespass or other tort, 231. or if money paid by mistake, and not paid over, 232. when liable to third perscns for money given to him. by his master to be paid to them, 234. of servant in cases of tort, criminaliler, servant liable for acts mala in se, 235. aliter, in some cases of mala prohlbita, 235. servant liable for breach of duty to master, which involves breach of public duty, 237. INDEX. 553 LlAmLlTY— continued. in cases of mere omission, 237. nuisance, 238. civililer, servant liable for misfeasance, 241. not for nonfeasance, 242. injuries by fellow-servant, 137, n. (o), 1-52. nor where act did not amount to conversion, 244. subordinate public officers liable for misfeasance, 246. ministerial public officers liable for negligence, 247. LIBEL. See Slander. Corporation liable for, published by servant, 14. owner of newspaper, when liable to information for libel published by his servant, 176. LIMITATIONS, Statute of, no bar to suit against confidential agent, 316. LIQUIDATED DAMAGES, OR PENALTY, 68. LIVERY, infant master, when liable to pay for, 7. master not liable to pay for, when fraudulently returned to tailor by servant, 170. property in, is in master who provided it. See Addenda to p. 108. LODGING-HOUSE KEEPER, liability of, for negligence of servants, 204. LUNATICS, contracts of hiring and service by, 9. MAGISTRATE. See Justice of the Peace. MALICE, express malice must be proved in actions of slander, S:c., for cha- racter given to servants, 251. what is evidence of, 252. MALICIOUS PROSECUTION, action against corporation for, 14. MARINERS, agreement between masters, &c., free from stamp duty, 29. stokers are not, 30. MARRIED WOMEN, cannot take apprentice, 3. contracts of hiring by, 3. liability of husband on such contracts, 3. power of husband to take advantage of such contracts, 4. their power in equity, 5. payment of wages to, 5. deserted by husband, 6. complainant in cases under 5 Geo. 4, c. 96. .348. MASTER, who may be, generally, 1. infar.t, livery for servants of, 6. lunatic. 9. partners, 9. corporations, 1 1. bankrupt or insolvent, 19. 11 u 554 INDEX. MASTEH— continued. rijrlus of afjainst servant or third person, 71. And see Action. semble, cannot chastise servant of full age, 76. may dismiss him for wilful disobedience, 77. moral misconduct, 78. habitual negligence in business, 79. incompetence or permanent disability, 83. liability of master to servant, or for his acts. See Action ; Lia- bility. MATERIALS, workmen embezzling, 384, 394, 447. not returning remains of, 388, 447. receivers of embezzled, 385, 396, 448. search warrant for embezzled, 387, 450. mode of proceeding by justices against persons suspected of having embezzled, or received embezzled materials, 397, 448. search warrant in such cases, 400, 450. owners of, may enter shops, &c., of workmen, 403, 451. MEDICINE, master not bound to find for servant, 131. but may render himself liable by conduct, 132. parish liable, 132. qucere, whether master bound to supply medicine as necessary food, 133. MENIAL SERVANT, who are within rule as to, 52. entitled to month's notice or month's wages, 52. contract of hiring free from stamp, 29. j MERCHANT SERVICE, apprentices in, 8, n. {I). agreements between masters and mariners in, free from stamp, 29. MESSMAN to regiment, 31. METROPOLITAN BUILDING ACT, penalty on workmen violating, 241. MILITIAMEN, contracts of hiring and service by, 2. MINES, employment of women and children in, 8, n.{l), 440. frauds in, in Cornwall and Devon, 291, n. (/). inspection of coal mines, 533. MINING AGENT, extent of authority of, 171. MONEY ORDER, issuing fraudulently by officers of Post Office, 324. MURDER, of master by servant, 279. third person by master by innocent servant, 175. NEGLIGENCE. See Action; Liability. NOTICE, what notice domestic servant entitled to, 52. to other yearly servants, 53. of termination of servant's authority, 173. INDEX. 555 NUISANCE, liability of master for nuisance committed by servant, 181. servant, 238. owners of real property, though committed by person not their servant, 207. OATH, administering, not to work under certain prices, unlawfid, 358, n.(0. OFFENCES, by servants against master, 279. murder of master, 279. assault on him in pursuance of conspiracy to raise wages, 280. burglary in master's house, 280. firing master's house by negligence, 281. stealing in master's dwelling-house to the value of 5/... 282. shop, warehouse or counting-house, 284'. larceny and embezzlement, 284. by public servants, 316. servants of Bank of England, 319. Ireland, 320. South Sea Company, 320. Post Office, 320. PAROL EVIDENCE, admissibility of, to explain contract, 32. PARTICULARS, of plaintiff's demand in action for wages, 113, n. (x). running down case, 184, n. (a). of charges of embezzlement, order for, when granted, 314. PARTNER, power of hiring and dismissing servants, 9. or servant, 34. considered principal in arbitration cases under 5 Geo. 4, c. 96 •» 347. PATENT, when master may take out, for invention of servant, 92, 93. PAYMENT, presumption of, by servant to master, 75. of servant's wages, presumption of, 120. earnings to master, good, 91. to servant, payment to master, when, 227. PENALTY, liability of master to, for acts of servant, 177. or liquidated damages, 68. injunction refused, after payment of, 70. PERSONATING master, and giving false character, 275. PHYSIC, 130. And see Medicine. PIECEWORK, stipulation for, will not render express yearly hiring less so, 49. POLICE, superintendent of, servant to chief constable, 302. POOR RATE, servant occupying master's house not liable to, 45. B B 2 .i 556 INDEX. POST OFFICE, embezzlement by servants of, 321. wbat is "a post letter," 322. POST OFFICE ORDER, officers of Post Office issuing fraudulently, 324. PRIVATE ORDERS, to servant, effect of, 169. PRIVILEGED COMMUNICATION. See Character. PRODUCTION of master's books, order for, refused, 130, n. (m). PUBLIC OFFICERS AND SERVANTS, not responsible for acts of subordinates, 213. responsible for their own servants, 215. subordinates responsible for their own acts, 246. ministerial liable for negligence, 247. may appoint deputy, 3. PUBLIC BODY, when acting for profit, liable, 221. offences by, 31G. QUICQUID acquiritur servo acquiritur dvmhw, 90. RAILWAY COMPANY. See Corporatio n. power of secretary to bind, 171. station masters and other servants, 164. indictment of, for servants obstructing highway, 181. held not liable in trespass for driver running over sheep on line, 211. for arrest of passenger by officer not authorized to do it, 213. servants, punishment of, 238. RATIFICATION, by master of contract made by servant, 155. must be of entire contract, 156. RECEIPT, by master of servant's wages, 91. by servant, receipt by master, when, 227, 228. servant forging, 308, n. («). stamped not necessary to prove embezzlement, 313. RECEIVER of property embezzled, indictment of, 313. REGISTER of parish servants under 16. . 529. RELATIONSHIP, created by contract, 34. REMEDIES for servant wrongfully discharged, 104, 108. RESIDENCE, of child with parent, when service may be inferred from, 101. RESPONDEAT SUPERIOR, 183. ROBBERY, • of master by servant will justify his discharge, 78. servant, servant not responsible to master for, 73. And see Larceny; Stealing. INDEX. 657 SAILOR, wages of servant turning, 129. SCHOOLMASTER, injunction granted to restrain discharge of, 106, note (A). SCIENTER, in actions for enticing away and liarbouring servants, 88. SECRET, of trade, contract not to use, valid, 68. SEDUCTION, of artificers from their employ to go abroad — statutes repealed, 87, note (e). of daughter or servant, 98. who may bring action for, 99. form of action, 100. cannot be brought in County Court, 101. what loss of service sufficient to support, 101. And see Manley v. Field, 29 L. J., C. P., 79. of daughter residing with parent, 101. out in service parent cannot sue for, 100. iJaughter or servant a good witness;, 101. evidence of general good character, 102. promise of marriage, 102. defence— pleas, 102. evidence, 102. damages, 103. SERVANT, rights of, 104. duties of, 71. liability of. See Liability. offences by, against master, 279. And see Offences. or partner, 34. or apprentice, 44. or tenant, 45. SET-OFF, of wages due to servant on discharge, 107. against claim for wages, what may be, 120. SETTLEMENT, by hiring and service, servant must be sui juris to gain, 1. abolished, 1, note (6). SHERIFF, action for wages on discharge of servant, may be tried before, 107. liability of, for acts of his bailiff, 174, note (a). SHIPOWNER, not liable to seaman, if ship not seaworthy, 140. SIGNATURE, when necessary, 28. what sufficient to satisfy Statute of Frauds, 28. SLANDER. See Character. general rules in, 250. imputations on servants affecting them in their situations, 271. unless connected with occupation or imputing general disability will not support action, 272. speciSl damage, 272. SOLDIERS, contracts of hiring and service by, 2. wages of servant enlisting as, 128. 558 INDEX. SOUTH SEA COMPANY, embezzlement by servants of, 320. STAMP, when necessary, 29. not in criminal proceedings, 31, 313. exemptions in favour of servants and mariners, 29. contracts for service in the colonies,'29. mixed contracts for labour and something more, 30. proceedings under 5 Geo. 4, c. 96, exempt from, 351. STATUTE, who entitled to protection given by, 215, note (u). STATUTE FAIRS, origin of, p. xlvii. STEALING. And see Larceny. master stealing by hands of servant, 176. in a dwelling-house to the value of 51. or more, 282. in a shop, warehouse, or counting-house, 284. soliciting servant to steal his master's goods, misdemeanor, 286, note (e). STEVEDORE, master of general ship, not liable for careless stowage by, 200, note (e). STOKERS, on board a ship are labourers, not mariners, 30. STOLEN GOODS, receiving by master by hands of servant, 175. STREET KEEPER, appointed by commissioners, how to recover salary, 215, note («). SUNDAY, contract of hiring made on, valid, 28. TENANT, servant is not, 45. TICKETS OF WORK, by manufacturers generally, 348. in the manufacture of hosiery, 514. silk weavers, 519. TOOLS, embezzlement of, 403. TORTS, See Action ; Liability. TRADE, contracts in restraint of, 57. And see Contract. how distance measured, 63. not to use particular secret valid, 68. not to solicit certain customers valid, 67. statutes for protection of masters, p. xxxvii. TRUCK ACT, 417. And see Wages. does not apply to domestic servants, 118. TRUST, direction in will to employ particular servant does not create a trust in his favour, 367. » TURNPIKE TRUSTEES, how far liable for acts of servants, 215. INDEX. 559 TUTOR, what notice to quit, entitled to, 53<. USER, by master of goods obtained by servant on master's credit, effect of, 172. VOLUNTEER CORPS, contract of hiring and service by members of, 2. VOTE, when servant entitled to, 46. WAGES, when master bound to pay, though no work found for servant, 54. when servant entitled to, 113. discharged wrongfully, 113. for misconduct, 127. increased, not due without agreement to pay them, 114. on dissolution of special contract of hiring, 115. where amount left to employer's generosity, 115. certificate of third person, 117. in case of bankruptcy of master, 120. See Bankruptcy. death of master, 125. servant, 129. default of servant, 127. when to sue in County Court, 119. or proceed before justices, 119.' And see Addenda. payment of, in goods — Truck Act, 118. And see App. 417. set-off by master against, 120. presumption of payment of, 120. legacy to servant, how far satisfaction of, 126. right of master to sue for servant's wages, 90. payment to master, answer to action by servant, 91. left in master's hands, interest, 127. in case of servant enlisting, 128. going to sea, 129. due to apprentices, when justice may order payment of, 332. servants and labourers, 327. when master absent, 334. rate of, cannot be made by justices without consent, 343. WARNING, what warning servants entitled to, 52. WARRANTY. And see Liability. liability of master upon warranty of servant, 161, 168. must be part of transaction of sale, 162. WEEKLY HIRING, what is, 50. servant under, not entitled to legacy of year's wages, 363. entitled to legacy left to servants, 364. WESTMINSTER BRIDGE, punishment of servants wilfully injuring, 240. WILL, direction in, to employ particular servant or agent, 367. 560 INDEX. WITNESS, servant formerly not admissible for master in action against him for servant's negligence, 74. WORK, how far master bound to find, 54. WORKMEN, wages of, on bankruptcy of master, 125. recovery of, before justices, 327, 332, 334. written contract of hiring when necessary, 21. YEARLY HIRING, what is, 46. when contract for indefinite time is,. 48. presumption of, when excluded, 48. effect of, when it may be terminated, 51. LONDON : PRINTED BY C. ROWORTH AND SONS, BELL YARD, TEMPLE BAR. LAW LIBRART XJNIVEKSITY OF CALIFORNIA L0S ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 872 402 3