UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE LAW OP MASTER AND SEEVANT, Part I -COMMON LAW. Paet II.-STATUTE law. JOHN MACDONELL, M.A, OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, AUTHOR OF " THE LAND QUESTION," ETC., ETC. LONDON : STEVENS AND SONS, 119, CHANCERY LANE, 1883. r LONDON : BnAUBL-RY, AGNEW, & CO., rUlNTKns, WIlITLKUIAns. V ? TO CHAELES EUSSELL, Q.C., M.P., S^bis ilooli is ticbicatcb UlTH ADJriRATION AND RE.srECT. "XOJJ IMMEEITO KEGXARE IN .Ji:DICnS DICTUS EST.' 787796 PEEFACE. I HAVE souglit to include in this book tlie chief recent decisions and Acts relating to Masters and Servants. The statutory and case law is of great bulk, and is rapidly increasing ; and my chief desire has been to make it readily accessible. Though many of the statutes arc of consider- able length, they have, with few exceptions, been printed in full ; no lawyer would care much for them in an abridged form. The dates are appended to the authorities ; the opinion of many lawyers and my own experience lead me to believe that this may be useful. From several excellent works in English, Scotch, and American legal literature, I have received assistance ; but I have deviated in some respects from the plans followed in them. The law of ^Master and Servant has been peculiarly affected by social f*) changes. Much that was once of great consequence has -Cv, become unimportant, if not obsolete, and I have been at -0 pains to give prominence to the portions of the law which VI rKi:rA( E. now most concern tlic practical lawyer, the employer, and the workman, and to make the reader remember that the value of H decision or a dictum may de})ciid not a little upon its age. J. :sL 4, I'lMr CoiKi, Miimi.K Tkmi'I.i:, Dcrnnbci; 1SS2. TABLE OF CONTENTS, Table of Cases Addenda Introduction rA(ii-: xiii xxxiu . 1 PAET I. CO MM ox LAW. CHAPTER I. Master and Servant and Master and Slave 29 CHAPTER 11. Definitions of Master and Servant a4 CHAPTER III. Hiring and Service and similar Contracts 53 CHAPTER IV. Parties to the Contract . 83 CHAPTER Y. Infants 87 Vlll TABLE OF COKTENTS. CHArTER VI. PACK Married Women I>3 CHAPTER VII. LrNATics 104 CHAPTER VIII. Partners 105 CHAPTER IX. Formation of the Contract 106 CHAPTER X. Corporations 113 CHAPTER XI. Stamps 121 CHAPTER [XII. The Consideration l-(j CHAPTER XI II. Duties of Masters 1-1^ CHAPTER XIV. DfllATION OF THE CoNTHACT 1(37 CHAPTER XV. Master's Duty to Indemnify 17G TABLE OF CONTENT?:. IX CHAPTER XVI. PAOE Master's Duty to Provide Sustenance JJ^o CHAPTER XVIT. Master's Duty to Teach Trade 183 CHAPTER XVIII. Master's Duty in regard to Servant's Character . .185 CHAPTER XIX. Measure op Damages 1^1 CHAPTER XX. Specific Performance 197 CHAPTER XXI. Lien 201 CHAPTER XXII. Duties of Servants 205 CHAPTER XXIII. Eights of Masters against Third Persons . . . . 228 CHAPTER XXIV. Dissolution of the Contract of Hiring and Service . . 235 CHAPTER XXV. Assignment of Personal Contracts 242 X TABLE OF CONTENTS. ("ILVrTER XXYI. I'AOK Servant's Authority as to Contracts 244 CHAPTER XXVII. Servant's Liability to Third Persons 2')3 CHAPTER XXVIII. Liability of a Master to Third Pehsons for the Acts of HIS Servants 257 CHAPTER XXIX. Master's Liability to Servants 302 PAET II. STATUTE LA"\V. CHAPTER I. Sunday Observance 337 CHAPTER II. The Embezzlement Acts 340 CHAPTER III. Servants' Characters 303 CHAPTER IV. The Truck Act 3GG TABLE 01-' CONTENTS. XI CHAPTER V. PAOE Acts relating to Chimney Sweepers . , . . . 385 CHAPTER YI. Acts relating to Employmext in Mines . . . . 390 CHAPTER VII. Agricultural Gangs 464 CHAPTER VIII. Children's Dangerous Performances Act 467 CHAPTER IX. The Factory Act 469 CHAPTER X. Education of Children in Employment 541 CHAPTER XI. Acts relating to Seamen .... ... 548 CHAPTER XII. Acts relating to Arbitration 572 CHAPTER XIII. Trade Unions 596 XU TABLE ()F CONTENTS. CHAPTER XIV. PAGC EmPLOYEKS and "WORKSIEK AcT 630 CHAPTER XY. Employek's Liahility Act 65-i INDEX 681 TABLE OF CASES. A. Abbott D. Bates, 110 — V. Macfie, 329 Abraham v. Revnolds, 30."), 30(!, 308, 311, 332 ■ Acey r. Feniie, 250 Adams v. Glasgow & S. W. Rail. Co., 333 — V. Ni^L^htmo-ale, 670, 671 Adamsou v. Jarvis, 177 Addams v. Carter, 222 Addie v. The ■\Ve>teru Bank of Scotland, 290 Advocate General v. Grant, 27") Af,dnconrt, The, 33 Albert Crofil)y, The, 'uA Albion Steel and Wire Co., In re, 161 Albro V. Jaquitb, 2,")6, 313 Alderson r. Maddison, ].j9 Aldrid,L,^e, JtJx piaie, 96 Alexander v. Soutliey, 25.3 Alfred v. St. James, 143 Allen V. Havward, 41 — r. London & S. \V. Rail. Co., 280 287, 288, 297 — V. Xew Gas Co., 322, 335 — ?'. Rawson, 222 — r. Reseons, 132, 176 - — r. Shene, 31 Alsop V. Yates, 334 Althorf r. Wolfe, 272, 300 Alton r. Midland Rail. Co., 233, 254 Amalgamated Society of Railway Servants for Scotland v. Mother- -vvell Branch, 604 Amann v. Damm, 186 Ames V. Union Rail. Co., 233 Amor V. Fearon, 211, 217 Anderson v. Moon, 227 Andrews v. Garstein, 213 — V. Pugh, 77 Angus ?". Dalton, 267 Annie Sherwood, 551 Anon., 220, 597 — V. Harrison, 249 Applebee v. Percy, 325 Apjilebv V. Dodds, 156 — ' r. Myers, 216 Araminta, The, 151, 152 Arcliard v. Hornor, 194 Arclier r. James, 367, 376 Arding i\ Lomax, 210 Armstrong v. Clavering, 36 Arnold v. Mavor of Poole, 117, 127 Ashcroft r. Bertles, 231 Ashworth r. Stainwix, 41, 105,315 — r. Outram, 97 Aspdin r. Austin, 139 Association of Land Fiiiancier.i)U' r. Cooper, 89 Charles r. Taylor, 307, 332 Chase r. Westmore, 201 Chawner r. Cumminf^s, 376 Cheap V. Cramond, 75 Cherry r. Bank (if Australasia, 253 — r. Heming, 107 Chilcot V. Bromlev, 35, 42 Child V. Affleck, 189 Chipchase, Ex parte, 166 Chippendall v. Tomlinson, 239 Churchward v. Chambers, 208 — V. Queen, 130 CJity of London Case, 14 Clark's Case, 166, 193 Clark V. Bury St. Edmunds, 72 — V. Chamhers, 329 — V. jMacLaren, 333 — V. Mumford, 59 Clarke r. Cucktiidd Uni(m, 115, 116 — r. Earnshaw, 209 — r. fiapc, 31 — V. Holmes, 323 Clarkson v. ^lus^'rave, 670 Clay V. Yates, 59 Clemenshaw v. Corporation of Dublin, 117 Cleyeland r. Spiers, 333 CleAvurth v. Pickford, 158 Cluttcrbuck V. Cotlin, 153 Cockayne v. Hodgkinsim, 189 Code r. Tbdmes, 90 Coc V. Plan, 478, 479 Cogf^s V. Bernard, 209 Coin V. St. <}ermoii lirown, 33!> Colburn v. Patmore, 176 Coleman r. Riches, 252, 262 Coles r. Dickinson, 521, 537 CoUen V. Wright, 253 Collett r. Foster, 271 Collins V. Locke, 136 Collins V. Price, 194 Collyer, Ex parte, 165 Combes' Case, 32 Commercial Union Assurance Co., V. Lister, 658 Condon V. Gt. South (& West. EaiL Co., 679 Ciingreve v. Upton, 73 Connors v. Justice, 212 Contract Co., In re, Claim of Ebbw Vale Co., 114 Conway v. Belfast, 332 Conybeare v. The New Brunswick Bail. Co., 261 Coombes r. Houghton, 31 1 Cooper V. Martin, 91 — V. Phillips, 180 — V. Reilly, 134 — V. Simmonds, 89, 236, 243 Cope V. Doherty, 548 — r. Bowlands, 132 Copley V. Burton, 276 Corby V. Hill, 660 Core V. James, 275 Cormick v. Digby, 298 Cornwall v. Hawkins, 88 Corporation of Liyerpool r. Wright, 133, 134 Costigau V. Mohawk Eail. Co., 193 Couch V. Steel, 182, 303, 321, 479. 566 Couchman r. Sillar, 183 Countess of Harcourt, The, 156, 551 — Salop V. Cronipton, 256 County Assurance Co., Be, 50 Coventry r. ^\'indal, xxxiv — V. AV(.odhall, 227, 242 Cowlesv. Potts, 189 Cox V. Gt. West. Eail. Co., 666 — V. Hickman, 67, 68, 77 — r. Mathews, 222 — r. l\ndlaiRl Rail. Co., 251 — V. Munc^ey, 231 Coxhead v. ]\lullis, 87 — ^j. Richards, 185, 188, 189 Crampton v. The Varna Eail. Co., 114 Cranch v. White, 255 Crane v. Powell, 109 Crawfoot, Ex parte, 165 Creen v. Wright, 167, 172 TABLE OF CASES. XVll (,'repps ('. Dunk'ii, .'3:3".) C^risp r. Bimbni y, o~',i (h'ocker r. Molyiieux, L'Tj Croft r. Alison, ^8G, 2U.i (Jrol'ton V. Pdok', 2:39 Crowtlu'i- V. IJainsbuttom, 218 Ciicksou V. Stdiu's, 215, 217 CuUen r. Thomi^.'^on'.s Trustees, Cunningluim r. FouLlaiKj^ue, 211 Currie v. Misa, 12G Cussons r. Skiuin-r, 207, 218 Cuthbertsoii v. Parsons, 2G3 Cutler V. Turner, (i21, (335 Cutter V. Powell, 150, 154, 194 Cutts V. Ward, 37(3 1). Dakin v. Watson, 121 Dallinger v. St. All)yn, 150 Dalryniple v. McGill, 286 Dalton V. South Eastern Rail. Co., (378 Dalyell v. Tyrer, 2(39 Danube Eail. Co. v. Xenos, 195 Darby v. Humber, 184 Daring, The, 557 Darlow v. Edwards, 36 Daul)igny v. Duval, 203 Daugars v. Rivaz, 199 Daun r. Sinimins, 244 Davenant v. Hnrdis, 14 Davey v. Shannon, 107 Davidson v. Moss, 670 Davies v. Berwick, 624, 637 — V. Davies, 145 — V. England, 321, 335 — T. Goodeuow, 145 — V. Marshall, 168, 174 — r. Williams, 234 Davis V. Duke of Marlborough, 129 — Exparfp, 90, 91 — V. Marshall, 168, 174 — V. Moxon, 136 — V. Nest, 350 Day V. Boswell, 75 Dean and Gill)ert's Case, 193 Dean r. Peel, 230, 233 De Begnis r. Arnnstead, 132 Deben'hani v. Mellon, 94, 95 Degg V. Midland Kail. Cu., 314, 315, 331, 333, (;59, ()60 Delanianier v. Winteringhani, 560 Delhasse, Exjnn-tc, 66 De Mattos^^ (;;ibson, 199 Derby r. Humber, 184 Dewhurst, Kr parte, 239 Dickenson v. Fletcher, 276, 426 Dickinson v. North Eastern Kail. Co., 678 Dickson v. Pieuter's Telegraph Co.^ 254. Dixon r. Birch, 277 — r. Parsons, 189 — V. Ranken, 313 Dolibin V. Foster, 23(5 Dobson V. Collins, 108 — V. Jones, 71 Dodgson's Case, 260 Doel r. Sheppard, 335, 479 Doherty v. AUman, 199 Donaldson r. Fulton, 123 — V. Williams, 105 Doolan v. Midland Rail. Co., 49 Down r. Pinto, 170, 174 Downnian v. Jones, 253 Drew f. Nnnn, 104 Drury r. Defontaine, 338 Dry r. Boswell, 75 DuLilin i\ Foster, 230 ~ r. Wicklow Rail. Co., 91 Duckworth i: Johnson, 679 Dudley v. Biown, 320 Duignan v. Walker, 136 Duke r. Littleboy, 604 Duncan r. Blundell, 158 — r. Findlater, 295 Dunn r. Sayle.s, 127, 140 Dunstan r. Imperial Gas Light Co.y 126 Duranty's Case, 200 Dynen v. Leach, 334, 655 Dvte f. St. Pancras Guardians, 114,. 116 E. Eades v. Yandepnt, 221 Eager v. Giimwood, 233 Earl of Bute v. Grindell, 64 Earratt v. Burghart, 112 East Anglian Rail. Co. r. Lvthgoe, 210, 21S b XVlil TABLE OF CASES. Easftcrn Cmmtios Rail. Co. v. Brocmi, 2()0. 280, 29G East India Co. v. Hen.sley, 246 — V. Vincent, 197 East London Waterworks Co. v. Bailey, 114 Eaton V. "Western, 184, xxxiii Ecclesiastical Commissioners r. Merral, 114 Eden's Case, 90 Edinburgh & Clasgow Co. v. Show, 235 Edmondson v. Machell, 233, 234 Edwards v. Levy, 214 — V. London & North Wes- tern Rail. Co.. 258,287, 297 — V. Mackie, 212 — V. ]\Iidland Rail. Co., 260, 261, 299 — V. Trevellick, 205, 560 Egerton v. Brownlow, 133 Emmens v. Eldertou, 140, 141, 168, 191 Eley V. Positive Government Secu- rity Life Assurance Co., 109 Elizabeth, The, 551 Ellen V. Topp, 183 Elliott V. Clayton, 239 Ellis V. London & South Western Rail. Co., 292, 660 — V. Sliefheld Gas Co., 264, 266 ELsee r. Gatward, 127 Ebworth v. Wolhnore, 111, 151 Emden v. Carte, 240 Emmens y.Elderton, 134, 141, 168, 191 Enchantress, The, 33 English Joint Stock Bank, 156 Evans v. Mostvn, 414, 444, 459 — V. Roe, "108, 175 — V. Walton, 229, 230 — r. Wills, 635 Ewart V. (Jlurbb, 96 Exeter, Tlie, 158 Eyre v. Sniallj)age, 70 Fairmau r. Oakibrd, 168, 174 Farebrother v. Ansley, 176 Faring v. Feason, 545 Farnsw, ith r. Garrard, 150, 157 Farrer v. Close, 599, 602 Farrow v. Wilson, 235 Far well v. Boston Railroad Co., 302, 306, 331 Faulds r. Townseiid, 300 Faulkner r. Erie Bail. Co., 336 Faviell r. Eastern Counties Rail. Co., 117 Fawcett v. Beavres, 231 — V. Cash, 167, 169, 172, 174 Featherstone v. Hutchinson, 176 Fechter V. Montgomerv, 199 Feltham r. England, 304, 332 Fenn v. Harrison, 246 Fennell v. Ridler, 339 Fenton v. City Hampson, Ji.c 2^((rte, 16G Hance r Burnett, 542 HaniUev v. :M()llatt, 185 Hankin's r. Clutterbuck, 123 Hands V. Slanev, 89 Handysule r. Artliuv, 214 Hanington v. Ducliastel, 134 Hannatord r. Hunn, 33 Hanson r. Royden, 153 Harcunrt, Ex pn/ir, 1(56 Hard f. Vermont Central Rail. Co. 334 Hard castle r. Junes, 520 Hardy v. Ryle, 46, 637 Tlarkins r. Smith, 237 Harmer v. Cornelius, 214 — r. Killing, 88 Harms r. Parsons, 136 Har]ier r. liuttkin, 233 Harrington v. Victoria Graving Dock Co., 132 Harris r. Butler, 233 — V. Carter, 151, 152 — Ex parte, 166, 217 — r. Thomp.son, 187 — X. Watson, 151 Harrison r. l^.ush, 186, 190 — r. James, 112 — V. Leaper, 276 Hart V. Eldridge, 229 — r. Prater, 88 Hartland r. Ceneral Exchange Bank, 191 Hartley r. Cummings, 128, 139 — V. Harnnin, 191 — V. Ponsonliy, 152 Hartley's Trust, lie, 36 Haseler r. Lemoyne, 271 Hassard v. Smith, 104 Hawkins, Re, 164 HaAvtayne r. Bourne, 24(> Haydon r. Taylor, 521 HaVsler r. (!t. Western Rail. Co., (i(;6 Hazard e. Treadwell, 250 Hearue I-. Carton, :^76 lleiiven r. I'endcr, (.61 HelHion V. West, 658 Hedges f. Tagg, 230, 234 ■ Hedgley v. Holt, 149 Helyear v. Hawke, 24(;, 250 Henderson r. ]\Iidland Rail. Co., 261 Herbert r. Reid, 35 Hern v. Nichols, 259, 271, 294, 295 Hesketli r. Blanchard, 75 — V. Braddock, 14 Hesse r. Stevenson, 239 Hetherington r.North-E.Rail. Co., 679 Heyhoe v. Burge, 67, 68, 75 Hibl.s c. Ross,'244 Hickin, Ex ptarte, 166 Hidden, Ex parte, 82 Hiugins r. Butcher, 231, 232 '— . r. Hopkins, 143, 144 Hi;4ham r. Wright, 427 Hill r. Arbon, 88 — V. Thompson, 222 Hilton V. Eekerslev, 32, 135, 597, 599,601,602 Hilyard v. Mount, 156 Hinde r. Grav, 13(5 Hindley v. Haslam, 159, 632 Hingeston r. Kelly, 147 Hinshaw v. Adam, 215 Hirschtield i: L. B. & S. C. Rail. Co., 657 Hiscoxr. Batchellor, 172 — V. Greenwood, 247, 250 Hitchcock V. Coker, 126, 138 Hobl).s V. Young, 21 Holjson r. Cowley, 236 Hochster r. De La Tour, 195 Hodi;kin.son r. Green, 93 Hod'soU r. Stallebrass, 229 Hoey r. McEwan, 23(5 Hoggard r. Mackenzie, 82 Holcroft r. Barber, 168, 169, 174 Holder v. Fitchburg Rail. Co., 334 H(de r. Sittingbourne Rail. Co., 265, 26(5 Holloway r. Abell, 233 Holmes 'r. Clarke, 320, 326, 335, 479, 662 — V. North- Eastern Rail. Co. , 315 — r. Onion, 42 — r. Worthin-toii, 320, 327, 335, 662 Homborg, Ex parte, 1(56 Homer r. Ash lord, 138 TABLE OF CASES. .\Xl Hojnvood r. Thorn, ]8() Horn V. Ivy, 1 1 ;"> Hornby v. Close, 602 Home V. Blake, 242 Horr.er v. Groves, 136 Horton v. McMurtry, 209, 211, 218 Hough r. Texas & Pacific Rail. Co., 323 Houltlswortli V. City of Glasgow . Bank, 259, 261, 262, 290 Howard v. Slieward, 245, 251 — V. Wilson, 36 — r. Woodward, 200 • Howartli i\ Coles, 521 Howells V. Landore Steel Co., 304, 305, 306, 332, 408,_426 Howells V. Wynne, 275 Hoyle V. Oram, 520, 521 • Huddlestone v. Lowell INIacliine Shop, 336 Hughes r. Budd^ 121 — V. Chatham, 72 — E.r parti', (i37 — V. Humphreys, 183 H\t11 and London Life Assurance Co., Re, 260 Hulle v. Heightman, 156 Hujnphreys, Ex parte, 165 Humplirys i\ Pratt, 177 Hunt V. Colson, 71 — i: Wiml)ledon Local Board, 114, 115,118 Hunter v. Berkeley, 250 Hussey v. Pacej^, 210, 256 Hutchinson i\ York, Newcastle & Berwick RaiL Co., 295, 303, 305, 331 Huttman v. Bonlnois, 167, 170 Hutton V. Bragg, 202 Huxani v. Thorns, 664 Huzzey v. Field, 283 Hyams r. Webster, 266 Hyman v. Nye, 325 Illidge V. Goodwin, 279 Ilott V. Wilkes, 660 Indermaur v. Dames, 661, 662 Ingram v. Barnes, 368 Zona, The, 270 Irwin V. Dearman, 234 Jackson v. Cummins, 202 — V. Irvin, 82 — V. Warwick, 123 Jacobs r. Latour, 202 Jacfjuot V. Bourra, 208, 209 James v. Carswells, 183 Jenkins v. Belthum, 214 Jennings v. Pitman, 90 Jesse V. Roy, 156 Jewry v. Busk, 145 Joel V. Morison, 284, 296 Johnson r. Appleby, 106, 109 — V. Baytup, Doe dem., 63 — V. Blenkensop, 169 — V. Boston, 48, 334 — V. Evans, 189 — V. Shrewsbury & Birming- ham Rail Co., 197, 198 — V. Sumner, 95 Johnstone, Ex jxtrte, 637 Jolly fe r. Broad, 134 Jones V. Hart, 294 — V. Jones, Doe dem., 71 — r. Victoria Graving Dock Co., 108, 109 ' Jonge Andries, The, 152 Joseph V. Corvander, 230 Josephine, The, 558 Judson V. Etheridge, 202 Juliana, The, 155, 156, 165 Julius V. Bishop of Oxford, 573 K. Keane v. Boycott, 229 Keat's case, 32 Keen v. The Millwall Dock Co., 668 Keene v. Parsons, 112 Kein v. Hart, 172 Kelly V. Partington, 187 Kelner v. Baxter, 253 Kemble v. Kean, 199 Kennedy v. Broun, 83 Kent r. Astley, 477, 522 — V. Shuckard, 277 Kerrains v. State of New York, ()3 XXll TABLE OF CASES. Kt-rsliaw r. Mitchell, 107 Kibble, Ex 2M)tc, 88 Kimball r. Cuslmiau, 48, 310 Kimbeiley v. Jennings, 191) Kingv. Glover, Ki") — V. Journeyman Tailors of Cambridge, 597 — V. Norris, 597 — The, V. Pope, 18 — f. Spurr, 49, 57, 269 Kingston v. Booth, 293, 294 Knight v. Fox, 43, 2H3 — V. Harrison, 204 — r. Wcddeiliurn, 29 Knowles i-. Diikinson, 421 Knox V. Gye, 48 L. Lacy V. Osbaldiston, 211, 212 Lake r. Campbell, 63, 71, 149 Lakeman v. Stephenson, 492 Lamb v. Attenborough, 54 — V. Burnett, 33 — V. Palk, 286, 296 Lambert v. Atkins, 93 — V. Buenos Ayres Co., 126 Lambuiu v. Cruden, 143 Laming i\ Webb, 6()5, 666 Lamprell r. Billerieay Union, 116 Lancaster v. Greaves, 637 Lane v. Cotton, 254, 290 Langan v. Gt. Western Rail. Co., 245, 252 Langham v. Young, 664 Langton v. Carleton, 175 Laning ■;;. New York Central l!ail. Co., 336 Lannen v. Albany Gas Light Co., 300 Lanphier v. Phipos, 215 Latter v. Braddell, 32 Laugher v. Pointei-, 42, 43, 44, 45, 46, 268, 269 Lavie v. Phillips, 95 Law V. Pratt, 369 Lawless r. Anglo-Egyptian Ctjtton Co., 186 Lawrence v. Todd, 368, 636 Lax V. Darlington, 292 Lcary r. Lloyd, 559 Lt'atlier Cloth Co. v. Lorsout, 136, 138 Leek V. Maestaer, 210 Leddy r. Gibson, 333 Lee V. Bayes, 255 — r. Griffin, 59 — V. Lancashire and Yorkshire Bail. Co., 657 — V. Walker, 214 Lees V. Whitconib, 139 Leewerd v. Basilee, 23 Leggott V. Great Northern Bail. Co., 679 Lt' Loir V. Bristow, 157, 159 Lempriere t\ Paslcy, 203 Leroux r. Brown, 107 Le Sage r. Coussmaker, 149 Leslie r. Fitzpatrick, 89, 632 Levison v. Kirk, 210 Lewis T. Fogg, 229 — V. Peachev, 223 Lightly V. Clouston, 221 Lilley r. ElAvin, 168, 170, 208, 220 Lima, The, 33 Limland v. Stephen, 205, 560 Limpus V. General Omnibus Co., 257, 280, 283, 286, 295, 297 Linwood v. Hathorn, 299 Liverpool Adelphi Loan Assoc, r. Fairhurst, 93 Lloyd V. Jolmson, 132 Llynvi Cual Co., Ex paric, 166 Logan, Ex -parte, 193 London, Leith, and Glasgow Ship- ping Co. V. Ferguson, 129 London and Xorth-Western Rail. Co. V. ^Ic:Micliael, 91 London Tramway Co. %: Bailey, 148, 632 Long r. Keightley, 230, 234 Lovegrove r. London, Brighton, and South Coast Bail. Co., 331 Lovell V. Charrington, 665 — V. Howell,' 304, 332, 659 Low V. Low, 134 Lowry v. Aikeidicad, 188 Lowther Castle, The, 33 — V. Radnor, 637 Lucas r. Mason, 271 — r. Nodisiliski, 164 Lucey r. Ligiam, 270 Lundey r. Gyi>, 23, 24, 34, 48, 229 — r. Wagner, 199 Lunt r. London and North. Western Rail. Co., 297 Lygo v. Newbold, 297, 330 TABLE or CASES. XXIU Lylly's Case, 90 Lynch v. Nurdiii, 314, 330 Lyons V. Martin, 282, 283, 29G M. Macey r. Hodson, (iTO Macfarlane v. Caledonian Eail. Co., 333 j\Iaclui V. London & South "West. Rail. Co., 49, 278 ]\Iackay v. Commercial Bank (if New Brunswick, 259, 261, 290, 299 Mackenzie v. ]\Iac Leod, 2r)8, 295 Macklin, Ex parte, 91 Macleod v. Sinclair, 123 Maclure, Ex parte, 129, 130, 193 Maddicks v. Gt. Northern Kail. Co., 335 Madonna d' Lira, 204 Madrazd i: Willes, 30 Mair v. Glennie, 75 — V. Himalaya Tea Co., IDS Majorihanks, Ex parte, 82 Makepeace v. Jackson, 221 Mali v. Lord, 300 Mallan v. Mav, 135, 13(; Malta, The, 158 Manby v. Scott, 94 — r. Witt, 188 Mangan v. Atherton, 329 Manley v. Field, 234 Mann v. Barrett, 233 — V. Lent, 123 Mansfield v. Baddeley, 305, 331 Manvell i\ Thompson, 233 Margaret, The, 204 Marshall r. Corporation of Queen- borough, 115 ^ — r. Button, 93 Martin v. Temperley, 270 Martinez r. Gerber, 229 Mason v. Mitchell, 96 Mathews v. Mathews, 164 Matthews v. Baxter, 104 Maiurder v. Conyers, 250 — V. Venn, 233 May V. Thomson, xxxiii Mayhew v. Suttle, 71 Mayor of Kidderminster v. Hard- wick, 117, 127 Mavor of Lndluw v. Charlton, 113, 115,117 — York V. Wellbank, 14 M'Cawley v. Furness Eail. Co., 655 McCracken v. Dargan, 479 McEnerv v. Waterfurd Eail. Co., 306 McGiflin v. Palmer's Iron Ship- building Co., 664, xxxiv McGinn v. Pilling, 665 McLityre v. Belcher, 129, 141 McKean v. Cowlev, 194 McKellar r. Maclarlane, 212 McKune v. Joynson, 553 McLaughlin v. Prvor, 269 McManus v. Crickett, 286, 295 — V. Hay, 665 McMonagle v. Baird & Co., 667 McQueen v. Gt. Western Rail. Co., 278 Mechanics' Bank v. The Bank of Columbia, 258 Meiklereid v. West, 553 Melhir v. Denhan, 541 Mellorsr. Shaw, 41, 316 Mercer v. Whall, 210, 217, 219, 222 Mersev Dock Trustees v. Gibbs, 26()'i 291 Metcalfe, £./: ^;rt)'/c, 148 — T. Lumsden, 250 Metzger v. Hearn, 321 Metzner r. Bolton, 172 Michael v. Alestree, 294 Michell V. Brown, 275 Middleton, Ex parte, 338 — V. Fowler, 294 Midland Insurance Co. v. Smith, 232 Milford, The, 557 Mill V. Hawke, 25(5 Millard v. Kelly, 368 Miller r. Hamilton, 250 — r. Lawton, 246 Millett V. Coleman, 632 ]\imigan V. Wedge, 263 Milsoni V. Howard, 164 Minerva, The, 156, 548, 560 Mires v. Solebay, 255 Mitchel V. Reynolds, 134 Mitchell r. Cressweller, 285, 29(> — V. Torup, 275 ]\Iofl'att V. Dickson, 148 — V. Parsons, 252 XXIV TABLE OF CASES. ^lollwo r. Court of Wards, 78 Moltou r. Canu'oux, 104 Money v. Haniiau, 151 Monneypenuy ?'. Haitland, 157 Moiitagiu' c. Flockton, ID!) Montgoiuiivy c. Nurtli Briti^^ll Rail. Co.', 251 Moore r. Motropolitau Rail. Co., 288, 298 — V. Smith, 90 Moorliouse v. Lee, 368 Morgan v. Birnie, 148 — V. Vale of Neath Rail. Co., 302, 304, 305, 306, 307, 332 Mori.son v. Thompson, 25, 221 Morley v. Dun.sconiLe, 269 Morris v. Cox, 122 Mortimore v. Wright, 91 Mostvn I'. :\Iostyn', 83 Moufiet V. Cole, 136 Moyle V. Jenkins, 668 Mullens v. Collins, 275 Munday v. Thames Iron Works Co., 670, xxxiv Munro v. Butt, 150 Murdock v. Glasgow and South AVestern Rail. Co., 479 Murphey v. Caralli, 269. 297, 3i Murphy v. Phillips, 320, 323, 335 — V. Smith, 329, 332 Murray v. Currie, 308, 332 — V. jMoutrie, 33 Myers v. Willis, 246 N. Nabonie v. Scott, 160 Naylor v. Farrer, 07 Neal, Ex jnnie, 165 Neptune, The, 155, 165, 204 Xewby c. Wiltshii'e, 180 Xewington Board v. Eldridge, 203 New Pliccnix, The, 212 Ncwrv, &e., Rail. Co. r. Co(mibe, 91 ^ Newton v. Forster, 158 Nicholl V. Martyn, 211, 229 — Doe de)n. r. McKaeg, 63, 71 Ni.holls r. Strclton, 136 Nichols ('. C' ■ han, 146 — V. Ha] J, 270 Nieliolson V. The Bradtield Union, 116 — V. Mounsey, 271, 291 Nickson v. Brohan, 244, 250 Nicoll V. (ireaves, 1()9, 170 Nimmo r. Clark, 425 Nisbett V. Dixon, 265 Noble V. Ames Manufacturing Co., 193 Norris r. Barnes, 478 North of England Joint Stock Banking Co., Be, 260 North r. Smith, 279 Northcote v. Doughty, 88 Norton Iron Works Co., AV, 161 — V. Powell, 338 Nowlan r. Ablett, l(i9, 170 0. Ochsenbein v. Shaplev, 321 Offley V. Clay, 93 Ogden V. Fossick, 198 — V. Jjancashire, 234 — c. Rummens, 335 Ogle c. Morgan, 36 O'Crady r. Cardwell, 291 Oldham, Ex 'parte, 166 Olding V. Smith, 369 O'Neil V. Longman, 600 Oppenheim r. White Lion Hotel Co., 277 Organ v. Brodie, 559 Ormerod, Ex parte, 630 Ormond v. Holland, 320, 334 Osborn v. Governors of Guv's Hos- pital, 149 Osborne v. Gillett, 232 Overton v. Freeman, 60, 263, 264 Ovington v. McYicar, 658 Owen V. Bowen, 148 Owens V. Maudslav, ()()5, 66G Packet Co. r. M'Cue, 305 Page V. Defries, 286, 297 Paine v. The Strand L'nion, 11 Palmer v. Bate, 134 Palmer's Shipbuilding Co. v. Chavtor, 477, 538 Parker v. Ibbetson, 149, l7l TABLE OF CASES. XXV Parker c. ^lardiant, 36 Parsons v. Thompson, 133 Patent Floor Cloth Co., In re, 130 Paterson r. Wallace, 317 Patten v. Rea^ 257, 2o8, 296 Pattison i>. Jones, 187 Paul V. Eden, 156 Pawsey v. Arnistronj^-, 6() Payne v. New Soiitli Wales Coal, &c., Co., 141 Peachey v. Rowland, 60, 262, 264 Peacock v. Peacock, 147 Pearce v. Brooks, 132 — V. Rogers, 250 Pearl, The, 158, 560 Pearne v. Lisle, 29 Pearse v. Green, 164 Peate v. Dicken, 338 Penhallow v. Mersey Docks Board, 325 Penn v. Ward, 32 Percival v. Hughes, 267 Pei'kins v. Smith, 255 Peter v. Staveley, 171 Peto V. Brighton, Uckfield, &c.. Rail. Co., 198 Phelps r. Wiuclicomhe, 243 Philadelphia and Reading Rail. Co. V. Der1_iv, 300 Phillips i( Clift, 222 — v. Innes, 339 — v. Jones, 112 — V. London & South West. Rail Co., 678 — r. ]^Ic Innes, 368 Phillipson v. Hayter, 95 Pickard v. Smith, 265 Pickering v. Bishop of Ely, 198 Pigg V. Caley, 12 Pilkington v. Scott, 139, 231 Pillar V. LljTivi Coal Co., 368, 377 Pinclion's Case, 142 Pinner v. Arnold, 121 Playford r. United Kingdom Elec- tric Telegraph Co.,, 254 Pollock V. Cassidy, 321 Pooley V. Driver, 68 Poplett V. Stockdale, 131 Portland v. St. Margaret, 64 Pott r. Eyton, 76 Potter r. Faulkner, 331 P.itts V. Port of Carlisle Dock Co., 325, 335 Poucher v. Norman, 142 Poulton V. London & South West. Rail. Co., 281, 290, 297 — V. Wilson, 121 Poussard v. Spiers, 215, 226 Power V. Hoey, 177 Powis, Ex jiarte, 166 Powles r. Hider, 49, 56, 57, 2(V.) Precious v. Abel, 247 Prentice r. Hall, 403 Price V. Green, 136 — V. Mouatt, 208, 218 Priestley v. Fowler, 205, 302, 303, 312, 330, 654, 666 Prince Frederick, The, 15(; Prince George, The, 201 Princess Helena, The, 555, 557 Procter v. Sargent, 136, 13S Pro\'idence, The, 153 Puller V. Faulkner, 314 Pulling V. Gt. Eastern Rail. Co., 664 Pyni V. Great Northern Rail. Co., 678 Q. Quarman r. Burnett, 42, 43, 47, 4S, 271 R. Radley v. London & North West. Rail. Co., 660 Railroad Co. r. Hanning, 301 Raitt v. Mitchell, 202 Rajah of Cochin, 557 Randell v. Trimen, 253 Randleson v. Murray, 45, 269 Rapson r. Cubitt, 60, 263 Rawlings v. Chandler, 148 Rawlinson v. Claike, 76 — V. Moss, 236 Raymond v. Minton, 183, 223 Raynard v. Cliase, 21 Rayner v. Mitchell, 285, 298 Read v. Dunsmore, 196, 208, 213, 217 — V. Great East. Rail. Co., 656 Reddie v. Scoolt, 233 Redgate v. Haj^nes, 275 Redgrave v. Lee, 477, 522 Reedie v. London & North West. Rail. Co., 41, 60, 263 XXVI TABLE OF CASES. Keeve v. Reeve, 143 llcid V. Bartonsliill Coal Co., 313, 333 Renuo r. Bennett, 208 11. V. Alnion, 273 — f. Amershani, 123 — ('. ArdiuL^ton, 173 — V. Arkwriuht, 222 — V. Arundel, 8!) — V. Ashley, ()5 — r. Aylesiiuiy, 122 — r. Baildon, 123 — V. Bailey, 39 — V. Baidwell, 70 — r. Batty, 4G — r. Bauld, (il8 — V. Beacall, 50 — r. Beaulieu, 84 — r. Beechev, 289 — V. Bilborough, 69 — V. Billin;j;liay, 69 — V. Birdbrooke, 173 — V. Bislio]), 27(5 — V. Bislu)pton, 71 ■ — V. Bolton, (il — V. Bourton, 122 — V. Bowers, 38, 40, 54 — V. Bradford, 122 — r. Brampton, 212, 225 — V. Bren, 38 — ('. Brown, 430 — v. Bunn, 614 — r. Burbach, 69 — r. Burton, 38 — r. Bvker, 168, 169 — r. Bykerdyke, 599 — V. Callahan, 41 — V. Canifield, 65 — r. Carpenter, 39 — V. CaiT, 47 — V. Charretie, 134 — r. Cheshunt, 70 _ r. Chillesford, 84, 89, 00 — V. Chirk, 23() — V. Christ's Parish, 173 _ V. Church Huhne, 122 — V. City of London, 260 — r. Combe, 69 — V. Cooke, 56 — V. Ciediton, 62, 69 — V. Crond'ord, 90 — V. ('iiiiiberhuid, 22 — V. Dedham, 172 — V. Dixon, 38, 273, 275 R. r. — v. — r. — V. — i: — ■ V. — -r. — V. — V. V. ■ — V. V. V. V. V. V. V. - v. V. V. V. V. V. - V. - V. V. V. V. V. - V. V. V. V. V. V, - V. V, - V. V. V. Dodderhill, 1C8, 173 Druitt, 617 Dutiiehl, 600 Eccles, 597 Eccleston, 69 Edingale, 69 Edwardscjn, 350 Elmlev Castle, 84 Elsack, 173 E\'ered, 90 Field, 70 FisluT, 360 Foulkes, 40 Freemen of Leicester, 671 Friend, 181 Gardner, 559 Gilrovs, 276 Glover, 38 Goodbodv, 46, 56 Gouch, 18 Gould, 180 Great North of England Rail Co., 260, 261 Great Yarmouth, 173 Guildford, 93 Gutch, 273 Hales, 173 Hales Owen, 215 Halidav, 613 Hall, 39, 40 Hammonel, 597 Hanqneston, 173 Hamstall Ridware, 550 Handler, 276, 401 Harburton, 238 Harrington, 123 Harrison, 14 Hartley, 75 Ha^tie^ 38 Hawkins, 65 Hewitt, 600 Hey, 55 Hibbfrt, 617 Highnam, 69 Hindrin-ham, 84, 91 Holbrook, 274 Hoseason, 19, 41 Hughes, 37, 38 Hulc.ott, 217, 225 Huntley, 32 Ide, 122 Ightham, 69 , Islip, 217 '. Ivinghoe, 42 TABLE OF CASES. \XVU i;. r — V. — r. — V. — V. — v. V. — V. . J;ii\is!, G.') , .Fciison, 41 , Justici's of Cuiuberlaud, 117 Kcynshfiin, 112 Kidwelly, 6!) Kiiit^f'.s Lvnn, 62, (>£) Kiiutsfonl, 69 Laiiidou, 69 , Lei'cli, 46, 105 Lt'li^liton, 122 Lichtield, 117 Little liultoii, 61, 69 Longiior, 90 Longwhatton, 146, 173 Lord, 89 Louth, 122 L(A\-, 122 Lvth, 169, 173 Macclesfield, 172 Macdonald, 38, 42, 77 Margctts, 65 Marshall, 39 Mathews, 64, 70 Mawbev, 597 IMay, 38, 40 INIayle, 39 Mayor of Stamford, 117 Medley, 276 Melkridge, 70 Mellish, 61, 289 Minster, 71 Mitchaia, 173 Mountsorrel, 61, 69 Mutters, 255 Negus, 34, 39, 40, 54 Xewton, 69, 168, 172 Xorthowran, 69 Northwingfield, 131, 13S Norton, 84 Odiham, 172 Parnell, 597 Peck, 243 Pendleton, 169, 173 Peyton, 65 Portsea, 122 Ponsonby, 64, 72 Pope, 18 Prince, 81 Privett, 361 Proud, 38, 633 Pucklechurch, 173 Rainham, 61, 69 Easehen, 217 Bedford, 39 R. V. Rees, 65 — y. Registrar of Friendly Socie- ties, 607 ~v. Ridley, 181 Riley, 55 Ripon, 90 Roach, 92 Rolyenden, 173 Rowlands, 59!) St. Andrew's, 168, 173 St. John, 84, 206 St. Luke's Hospital, 70 - v. St. Martin's, 173, 236 - V. St. Mary, 146, 173 - V. St. Mary-at-the-Wall, 81 - V. St. Nicholas, 90 - V. St. Paul's, Bedford, 121 -V. St. Peter's, 92, 172 - V. St. Petrox, 89, 122 - V. Sandhurst, 168 - V. Sankey, 203 - V. Scott, 261 - V. Seaton, 173 - r. Selborne, 92 - r. Selsl.y, 599 - r. Shanuan, 190 r. Shiufield, 69, 142 v. Silvester, 338 r V. SkefUngton, 238 - V. Smith, 180, 289 - V. South Newton, 62 - V. Sow, 145 - V. Spencer, 35 - f . Spon Lane Colliii'v Co., 416 ■ V. Spurrell, 62, (iO, 7 - V. S(|uire, 38 r. Stephen, 27() • V. Stf)ckbridge, ] 72 ■ r. Stoke-upon-Tjeut, 110 V. Stokesley, ] 46 V. Stowmarket, 31 V. Sudbrook, 217 V. Sutton, 217, 225 ('. Tardebigg, 103, 225 V. Taunton, 84 V. Terrott, 70 r. Thames Ditton, 30, 143 V. Tipton, 69 V. Tite, 38, 40 V. Tiyerton, 72 V. Tongue, 38 r. Totness, 550 r. Turner, 39 XXVIU TABLE OF CASES. 11. r. Tynoiuoutli, TO — i\ Walker, 3^, 53, 77 — r. AVall Lvim, 71 — V. "Walter," -Illi — r. Walton, 122 — r. Waiita.ije, 122 — V. Wai'tleii, 238 — r. Wainiiiis-ter, 173 — V. Waterliouse, 478 — V. Watts, 3!) — f. Webb, 3.-)S — r. AVeddiiigtou, 238 — r. Welch, 13!) — r. Wellbrd, 212, 22.-> — f. "Westei'leigli. 84 — r. Westmeon, 212, 213 — V. Wevliill, 144 — V. Wheatly, 597 — V. White, *42 — V. Whitnash, 338 — V. Wigston, 89 — V. Wilcox, 350 — V. Wilson, 65 — V. Wilt, 65 — v. Winclicomb, 84 — V. Winterset, 217 — r. Wishfoi-a, (59 — r. Witneshaiii, 84 — c. Witt, 65 — V. Woddliead, 359 — V. Wuodhurst, 173 — y. Woitield, 1(59, 173 — c. AVoitley, 77, 121 — v. Youle, 21 Reynolds r. Gex, 246 Rhodes i'. Forwood, 128 — r. Leach, 33 Rich V. Pierpont, 215 itichard.son v. C'ailwii^lit, 214 — V. Dubois, 104 — J'. Ciiecse, 1()3 — r. Mellish, 134, 192 — V. AV'illianison, 253 Richmond r. Smith, 277 Jiidgware, 537 Itidj^way i\ Kurdish, 1 15 — r. lIun^^H'il'ord ^Market, Co., 160,211, 217, 218, 219, 220 — V. Wharton, lOi) Rigby i\ Con no), 198, 603 Riley v. I'axendale, 334 — V. Warden, 367, 368 Eimell V. Sanipayo, 248, 250 Rishton v. Grissell, 164 Rist t-. Faux, 23(t, 234 Ritchie r. liowstield, 270 Roberts v. ria\elo( k, 155 — V. Smith, 148, 320, 335 Robertson v. Jenuer, 175 — r. McDonagh, 83 Robinett v. The Exeter, 553 Robins v. Cubitt, 659 Robinson v. Cushnian, 145 — V. Davison, 217, 235 — V. Hindman, 209 Robson V. Sharpe, 242 Roe r. Lirkenhead Rail. ( 'o., 289, 296 Rogers v. Clifton, 186, 187 Rolfe V. Hyde, 52 Rollo V. Thompson, 222 Rosario, The, 555 Ross t: Parkvns, 77 - i: Fender, 192, 193, 206 Rourke v. White Moss Co., 43, 47, 48, 308, 309, 332 Routledge v. Hisl.ip, 619, 632 Royalist. The, 5(ii) lioyce c. Charlton, 184, xxxiii RumsL-y r. Webb, 189 Rusbv "('. Scarlett, 247 Rush'torth v. Hadtield, 201 Russell V. Lee, 89 Russell's Patent, Be, 222 Rutheribid v. R<>ak, 210 Ryan r. Fowler, 336 — V. Jenkinsiin, 172 Ryder v. Wombwell, 88 S. Saboni v. Kirkman, 235 Sadler r. Heidock, 61, 2()8 St. iiartholomew Case, 70 St. Nicholas i: St. Pnt..l|.!i, 90 Sandemann r. Scurr, 2i() Sanders, Ex2)arte, 165 — V. St. Neot's I'nirii, lie. Sandt'rson v. litdl, 250 Sandiman r. Rreacli, 337 Santos ('. lUidge, 30 Saterthwaite r. Duci'st, 233 Saunders v. Crawford, 545, 547 — V. Crnwford, xxxiii — V. Whittle, ()38 Savaije ;•. AValthew, 25<> TABLE OF CASES. XXIX SiiviU; r. llohoits, 590 Saxtoii v. Hawksworth, 317, 335 Scarfe v. Moi'^an, 202, 204, 33!) Scariiiau r. Castell, 180 Schiiialiu!^' r. Tomlinson, 242 .Scliotk'kl r. Sclmuk, 47!) Scott V. Loudon Dock Co., G()5 Seaiiiau r. Cuppledick, 23 Scare i\ Prentice, 214 Searle v. Lindsay, 305, 331 — V. Reynolds, 27") — r. Ridley, 214, 220 Secretary of Jjoard of Trade v. Snndholme, 559 Selby V. Baldry, 214 Self V. London & Brighton Rail. Co., 47 Sellen v. Norman, 1(54, 180 Selsey r. Elu.a.les, (i2 Senior v. Ward, 32G, 329, 331, 334 Seymour r. Greenwood, 283, 297 ' — r. Maddox, 303, 304, 331, 334, mi Shackell v. Rosier, 176 Sliallcross r. Wri,glit, 150 Sluirnian r. Sanders, 367, 368 Shaw r. Chairitie, 214 Shelbonrne v. Oliver, 600 Shejiherd r. Hall, 123 Sherman i: Rochester Rail. Co., 334 Shield V. Leg.^e, 207 Shiells r. Blackljurne, 214 — f. Edinburgli & Glasgow Rail. Co., 268 Shilling r. Accidental, &c., Co., 658 ' Shirrelfs Case, 161, 193 Silk V. Osljorn, 239 Sim V. Evans, 440, 459 Simmons, Ex ■parte, 166 Simpson r. Crippin, 226 — V. Moore, 421 Simson v. Cook, 237 Sinclair r. Bowles, 154, 156 Singleton r. Eastern Rail. Co., 329 Skinnei-, Ex parte, 165 — V. Kitcli, 600 Skipp V. Eastern Counties Rail. Co., 303, 317, 331, 334 Skrine v. Gordon, 88 Slater v. Baker, 214 Slattery r. DuMin, Wicklow, &c. Bail. Co., 660 Shive Grace Case, Tlic, .3() Sleath V. Wilson, 2s5, 29(j Sleech V. Tliorington, 35 Sleenian v. Barrett, 367, 368 Sly V. E — c. Midland Counties Ivail. Co., 261 — ■ V. Woodward, 257, 2hO, 287, 298 Stewart v. Great Western Rail. Co., 657 Stiff V. Cassell, 173 Stiles V. Cardiff Steam Xavi^'ation Co., 259, 325 Stilk T. Mevrick, 151 Stirling v. ilaitland, 129 Stocker v. Brnckt^'lbank, 76, 1 9S Stoke V. Pitminster, 144 — V. Twitchen, 123 Stoke-iipon-Trent, 111 Stokes V. 3Iellor, 435 — V. Sanders, 604 Stone r. Cartwri-ht, 41, 256. 271, 272 — V. Hyde, 66!) Storey v. Ashton, 285, 297 StottV Dickinson, 414, 434 Stulibing r. Heintz, 247, 250 Stiihhs r. HolvAVcll Rail. Co., 235 Sullivan r. Waters, 661 Summers v. Solomon, 251 Sutton V. Clarke, 291 Swainson v. North Eastern ]\ail. Co., 48, 295, 302, 307, 312, 333 Swift V. AVinterbotham, 259 Sword V. Cameron, 313 Sydney Cove, The, 204 Sykes v. Di.xon, 110, 139, 231 — r. Noith Ewsteuu Rail. Co. 679 Tailors of Ipswich, Case of, 13, 14 Tallis r. Tallis, 136 TaiTant r. AVebb, 304, 325, 335 Tany v. Ashton, 266 Tasker v. Shepherd, 236, 237 Taj'lor V. Brewei-, 147 — V. Caldwell, 216, 236 — r. Carr, 220 — V. Grecnhaigh, 263 — r. Hawkins^ 188 — V. Hickes, 520 — V. Laird, 144, 220 Tebbutt r. Bristol Rail. C"o., 298 Teed ?-. Beere, 164 Temple v. Prescott, 225 Terry r. Hutchinsdii, 234 Test, Tlie, 560 Thames HaAen Co. v. Hall, 117 Thames Iron Works Co. c. Patent Derrick Co., 203 Thomas r. Vivian, 141 — V. Williams, 238 Thomas Worthington, The, 15s Thompson I'. Havelock, 221 — V. Ross, 230, 234 — V. Tliompsdu, 9(i Thomson r. Leech, l(i4 — r. Thomson, 134 Thorn f. Mavor of London, 128 Th.irold v. Smith, 252 Throgmorton r. Countess of Ply- mouth, 155 Thrupp V. Colh'tt, 36 Tickell *•. Read, 23 Tite's Case, 46 Toddr. Hawkins, 186 — V. Kerrich, 169, 170 Tomkinson r. West, 93, (536 Toogood r. Sjivrinu', 186, 188, 189 Toi)ham r. Goodwin, 664 Totterdell c. Fareham Blue Ihick Co., 251 Towers v. Osborne, 58 Townshend r. AVindham, 35 Train r. Bennet, 560 Trelawney r. Thomas, 1()4 Treswell c. Middleton, 221 Triggs r. Lester, 338 Trotman v. Dunn, 211 TuniU'V r. Midlainl Rail. Co., 305, 306,'332 Turberville r. Staiiq., 294 Turner v. Dia])er, 158 — r. Evans, 136 — r. Great Eastern Rail. Co., 312, 313, 333 TABLE (»F CASES. X X X 1 Turmr v. Letts, 204 — V. Mason, Kii), 172, 20.% 20G, 207, 208 — V. Robinson, 1G7, 1(J8, 174, 211, 220 Turner's Case, 20 U. Udell V. Athcrton, 271 Underhill r. Longrid^e, 413 Unwin i\ Clarke, 20 ' Van Den Evnde r. Ulster Eail. Co., 2.S8, 298 Vanderliilt v. Ricluuonil Turnpike Co., 286 Veitcii V. Eussell, 83 Velasfjuez, The, 270 Venables v. Smith, .50, 29!) Vose i\ Lancasliire & Yorkshire Rail. Co., 332, 663 Vrede, The, 1.j3 W. Wadling v. Oliphant, 239, 24o Wadsworth v. Gye, 243 Wain v. Warlters, 127 Waite V. North Eastern R v. Co., 329 Waldie v. Duke of Roxln'irghe, 282, 299 Waldo V. Martin, 134 AValker v. British Guarantee Asso- ciation, 210 — r. Great Western Rail. Co., 2.51 — r. Hull, 243 — V. Nicholson, 90 — V. South Eastern Rail. Co., 297 — v. Southwestern Rail. Co., 258, 287 Waller v. South Eastern Rail. Co., 331 Walley v. Holt, 659 Wallis V. Day, 31 Walsby v. Anley, 599, 600 Walsh V. Southworth, 243 Co., AValsh r. Walh-y, 220, ()3K Walter, Kr parte, 162, 166 Walters, Kr parti', 239 Waltham r. Miilgar, 293 Wannel's Case, 13 A\'anstall v. Pooler, 272 Warburton v. (Jreat Western Rail. Co., 312, 333 — c. Hevworth, 638 Ward r. Byrne, 135, 136 — r. ( ieneral Oinnibus Co., 29s — V. ^lacauley, 55 Warden, &c., of Weavers r. Brown, 14 Wardleworth ;•. Walker, 329 Warner v. Erie Rail. Co., 324 — r. Smith, 339 Warren r. Wildee, 305 Watt'rs r. Brogden, 250 Watling r. Oa'stler, 335 Watson V. Christie, 33 Waugh v. Carver, 67, 75 — " V. Mollis, 132 Way r. Great Eastern Rail. 278 "Weatherston v. Hawkins, 1 88 Weaver v. Floyd, 368 "W^ebb V. East, 187 — V. England, 184, 198 — r. Rennie, 335 Webster r. Dillon, 199 Weems v. Mathieson, 319 Weir V. Bell, 259 Wennall r. Adney, 180 Western Bank of Scotland 260, 290 Westlake v. Adams, 1 23 Westmoreland, The, 551, 560 Westwickr. Theodor, 183, 223 Whartman v. Pearson, 297 Wheatley r. Patrick, 272 Whincup V. Hughes, 184 White V. Bavlev, 73 — r. Boby,'l98 — r. Cuyler, 95 — r. France, 661 — V. Spettigue, 232 — r. Wilson, 111 Whitehead v. Holdswortli, 4u3 Whiteley v. Arniitage, (;36 — V. Pei)per. 279 Whitely v. Adams, 186 Whitfield v. Lord Le Desponscr, 290 Addi XXXll TARLK OF CASKS. Whittield v. South Eastern Rail. Co., 260, 2HI Whittaker c. r.almfortli, (KM Whittle V. Fniiikhnia, 127, 141 Whvnipri- i: Hainhi-y, 'rlO Wirks, /;.'• jiarh; 103 Wi--ett t: Fox, 48, 308, 312, 313, 331 Wi-more v. Jav, 303, 320, 331 Wiikiu V. Eei(l, UiO . Wilkins I'. Wells, 112 Wilkinson v. Frasier, 75 Willets c. Given, 219 AViUett r. Boole, 41, 636 Willetts r. I3uttaln Eail. Co., 329 AVilliani r. Jones, 287, 297 Williams c. r>yine, 170, 172 — V. Ciiamhers, 239 — r. (/lough, 320, 335 — r. Wheeler, 107 Williamson r. Barton, 249 — V. Taylor, 139 Willis, Doe dem. V. Birchmore, 63 — r. ChiUle, 199 — r. Thorp, 384, 638 Wilmott V. Smith, 252 AVilsun r. Barker, 289 — r. Cdokson, 371 — V. GlasLjow Tramway Cu., 148,632 — r. Merry, 272, 304, 316,321, 333, 663 _ r. Peto, 256, 272 — f. Simson, 150, 339 — V. Tummon, 289 — ,-. Zulueta, 121 Winne r. Bamptun, 113 Winsmore r. (Ireenbank, 24 Winstone i\ Linn, 32, 222 Wintun r. Wilkes, 90 Winyard r. Ti)o-i>oil, xxxiv Wise V. Wils.-n, 212, 222, 223 Wolfe V. Matthews, (;04 — V. Mersereau, 300 Wdltou /•. Cavin, .339 Wolverham]ilon it W. Bail. Co. •/•. London & North Western Rail. C..., 197 Wood V. Bowton, 600 — r. Fenwick, 89 — V. Finnis, 291 Wooj v. Thomson, L. E. 20 Ch. D. 705 ; 47 L. T., X. S. 295 as to specific performance of contract for sale of medical practice. „ 223. In note {d} for " is not," read "is not often.'' ,, 227. Coventry v. Windal (1615), Brown. 67. A man cannot compel an apprentice (to a surgeon) to go beyond seas except he go with liim, "but clearly he migjit send his apprentice to Chester, or any other part of England." „ 231. See Gunter v. Astor (1S19), 4 Moore 12, as to damages for enticing away servant. ,, 482. As to the meaning of " employed," see i?crtt/o/? v. Pairot (1871), L.K. 6 Q. B. 718, where it was held that the respondent had committed the offence of employing a child within sections 6 & 7 of 30 &; 31 Vict, c. 146, though the respondent had no interest in the proceeds of the sale of the child's work, and though the materials were supplied by the child's mother. XXXIV ADDENDA. Page 545. Saunders v. Crowfui-d, has been overruled by JFini/ard v. Tooyood, W. K, Dec. 23, 1882, i-. 187; Times, Dec. 20,1882; Solicitor's Journal, Dec. 23, 1882. ,, 604. McGlJin v. Ptdmcr's Hhiphullding Co. is reported in 47 L. T. N. S. 346, where Field, J., says the " defect" must be "something in the l)ermaneut condition " of the way. ,, GC6. Bunker v. Midland Jiad. Co., Law Times, Dec. 16, 1882 ; Solicitors' Journal, Dec. 16, 1882 (plaintiff, a van guard, ordered by foreman to drive a van to D. market, and injured in so doing ; phiintitf could not recover damages, inasmuch as the order was not, by tlie defendants' rule?, one to which he was l)ound to conform). ,, 670. Mundaij v. Thames Iron Works Co. is reported in 47 L. T., N. S. 351. "The liability of employers is considerably increased, and if the Legislature had intended that workmen should have a double remedy, I think we should have found something in the Act to indicate it." — Manisty, J, THE LAW OF MASTEE AND SEEVANT. INTRODUCTION. The relation of Master and Servant is created by contract. Their duties to, and rights against, each other arise out of contracts, express or imphed. The only exceptions are duties and rights created by statute (a). This is a statement of the law of Master and Servant as it is and as it has long been ; and abundance of authority in support of these propositions will be found in this book. But labourers and workmen were not always free to make contracts with their masters. Services were not performed and exacted in virtue of any agreement. Traces of serfage are said to be still found in the law of Master and Servant. It may be well to preface the description of the law as it is with a short history of its growth. Serfage or villenage is an early English institution ; even slavery once existed in this country. The ceorl of early times — who corresponded to the liten, leten, lazzen, aldien, aldionen of old German society — was not exactly a (a) See Austin's Jurisprudence, Master and Servant. Out of the re- voi. L, p. 396, and vol. ii., p. 970, as latiou grow not only rights t?i ^;c?-- to certain peculiarities of the Law of sonam, but rights in ran. B 2 THE LAW OF MASTER AND SERVANT. slave. Nor was ho in all respects a freeman ; he had some of the qualities of both (h). His condition varied at diffe'rent times ; but it seems to have been always better than that of the slave or even of the villain as described by Bracton. His social rank was not fixed. He might purchase his freedom (c). He might acquire property and become a thane. He might possess slaves of his own, and he had rights over the common land of the township (d). Sometimes, at all events, he had the choice of a master ; and the vxhrgdd or blood money to be paid by one who killed him, did not differ very much from the fine paid by the slayer of a free- man (e). " The ceorl," says Mr. Freeman, " like the ancient Greek citizen, though he might be looked down upon by an aristocratic class, was actually a privileged person as com- pared with a large number of human beings in his own city or district" (f). But the theows, who were the other branch of the servile class before the Conquest, were really slaves. They were fixed to the soil, so that when it was sold they were sold also (g). They might be beaten and imprisoned by their masters ; they were freely bought and sold ; they had no wehvgeld, at all events none payable in the event of their being slain by their own masters (/t), whose property they were ; wu-ongs done to a iheoiu were wrongs done to his owner. Though the sale of slaves abroad was prohibited, the prohibition was habitually {b) Waitz's Vcrfassungsgr.ichifhtc, obscure, and f^roat diircronces bi'- vol. i., p. 176. As to the hit and tweeu the autliorities exist. See ceorl, see Green's History of the Eng- Stuljbs' Constitutional History, vol. lish People, vol. i. 11. i. 78 ; Lappenberg, ii. 320 ;_ Gierke's (c) Thorpe's Dijiloniatarium Angli- Ocnoxsrnsdiaflsrccht ; Waifz^s J'crfaa- ciim, xviii. ; Stulibs' Constitutional suiigsiicsrhirhtc, vol. i. 17C ; Von History, vol. i. 79. Keniblu thinks >,\Mnuv,Oixchiclttc dcr Fronhofc, \.V1. that even the slaves could redeem Compare with the distinction between themselves in later periods. The vcorh and thcoics the account of Saxons in England, vol. i. 212. certain slaves given by Tacitus in lys {(l) Stubbs, vol. i. 81, 1.'5."), 1G2, ii. Germania, c. 24 ami 25. 453. The rrorZ seems generally to have (h) There is a dillerence of opinion possessed land. on this point : Lappenbcrg, ii. 321 ; (c) Stubbs, vol. i. 161. Cobb on Slavery, cxxiii. ; and Kem- (/) Norman Conquest, i. 88. ble, i. 20osed untler the Statute of should not he in want of servants." Lahourers sliould not go to the Koyal For enumeration of the laws regu- E.\che(iucr hut he distributed among iating wages, see Eden's Histoiy of the Commons, the Poor, i. 43. (r) 37 Ed. III., c. S-14. INTRODUCTION. 11 an attempt to reduce agricultural labourers, and artisans engaged in trades useful to agriculture to a state of villenage. The villains resisted. Frequent mention is made of isolated revolts. The story told in the Chronicon Monaaterii de Meha of the litigation protracted for years between the abbot and serfs of that monastery, and carried from Court to Court with varying success and with obstinacy on either side, is an instance of the perseverance of the villains in contending against their masters (s). We find in the preamble to the 1 Richard II. c. 6 (1377) evidence that they had powerful aiders and abettors in the struggle. "The villains," says Mr. Stubbs, " ignored the statute (of labourers), and the landlords fell back on their demesne rights over the villains. The old rolls were searched, the pedigree of the labourer was tested like the pedigree of a peer, and there was a dread of worse things to come " (f). The imposing of a poll tax, which was vexatiously collected, gave occasion to the peasants' revolt of 1:581. The hardships of villenage were not their only grievances, and in fact the strength of the movement was in Kent, where the villains had always held a better position than elsewhere {ii). But the chief demand of the insurgents was the abolition of bondage. After about a fortnight of success the outbreak was quelled. The charters of manumission granted by the king to the peasants when in London were cancelled, and many of the leaders were put to death. But in spite of the failure of the insurrection — in spite of the vow of the king "You were and are rustics, and shall remain in bondage ; not that of old, but in one infinitely worse " — the work of enfranchisement went on. The efforts made to prevent it were numerous but ineffectual. In 1.388 a strict system of passports was established (a,-). A servant or labourer who left the hundred, rape, or wapeu- (fi) iii. 129. Kent, is not (juite correct. Fnrloy's (/) Constitutional History, ii. 455. Historyof the Weald of Kent ; Elton's See also Pike's History of Crime, Tenures of Kent, 38 : and Lappen- i. 330. berg, ii. 321. See, however, Fitz- (m) The statement, often broadly lierbert, 46. made, that there were no serfs in {_x) 12 Rich. II. c. 3. 12 THE LAW OF MASTER AND SERVANT. take in which he dwelt must carry " a letter patent contain- ing the cause of his going and the time, if he is to re- turn," on pain of being j>ut in the stocks. The Commons petitioned in 131)1 that the sons of villains should not be allowed to frequent the universities ; and from time to time the Legislature interposed with various measures to prevent the rural poiDidation from apprenticing their children to trades in cities and boroughs, and so reducing the number of husband- men (2/). Labourers were bound to take an oath annually at the leet to observe the laws relating to wages and service (7 Hen. IV. c. 17 (1405) ). The free labourers could not bargain as to their hire ; if they were not bound to take the old rates, they must accept the wages which the Justices proclaimed at Easter and Michaelmas (0). Meanwhile villenage liad all but died out. It is a significant fact that the rebels who were led by Jack Cade in 1450 did not complain of the exac- tions of their lords ; in the interval of sixty-nine years between this popular rising and the earlier peasants' revolt, the institution had lost its importance. Sir Thomas Smith, who wrote in the reign of Edward VI,, says that he had never known a villain in gross ; and villains regardant had apparently been almost entirely merged in copyholders (a). Yet villenage existed in the reis^n of Elizabeth. This is shown by the case of Butler v. Crouch, in Dyer's Reports, {h) which decided that a villain and his issue not having been claimed for sixty years could not be seized by the lord, and also by the fact that in 1574 Elizabeth issued a commission to compound with her bondmen in Cornwall for their manumission. The last case of villenage recorded in the law books is an action of trespass, Pigg v. Calcy, in which a plea of villenage was set up (c). (y) 7 lien. IV., c. 17. See as to did away with tlio rate of wages as exerrqitions enjoyed by London and fixed by statute of Ed. III. Nonviuli, S Hen. VI., c. 11 ; 11 lien. {(i) Conimonwealtli, b. 2, c. 10. VII., c. 11 ; 12 Hen. VII., e. 1. See See Scriven on Cojiyhold Tenure, p. 1> Richard II. c. 2, as to villains Hying 46, 3rd ed.,astooiigin oi'eui)yholders. into cities and suing their lords. {b) 266a. (z) 13 llich. II., c. 8. This Act (c) Koy's Reports (1618), 27. INTRODUCTION. 13 Centuries before this, a large class of free artisans, crafts- men, and labourers had sprung up, especially in towns. Though nominally free, they did not in fact buy orcontract as each thought fit. They were for most part members of guilds or trade companies, by the rules and ordinances of which they were bound. The principle of the Common Law was that each man was free to trade as he thought fit (d) ; that he might bind himself apprentice as he liked ; that he might practise his trade anywhere, even if he had not been appren- ticed to it — a principle often invoked against guilds or corpo- rations which made ordinances creating monopolies (e). Nevertheless the guilds obtained enormous power. In London, for example, no one could be a freeman of the city until he was free of one of those fraternities, and only free- men might trade within the city or its liberties (/). Origi- nally not incorporated, but mere voluntary associations, these guilds received grants of incorporation, and acquired a dis- tinct political and legal existence. They made bye-laws regulating the use of tools, the quality of wares, the settle- ment of disputes, the hours of work and the number of servants or apprentices whom a master might employ. They rigorously enforced the rule that no artificers who were not free might be employed within the city. Parliament occasion- ally interposed to lighten the burden of monopolies which were, as the statutes said, " against the common profit of the people," (g) and the validity of such bye-laws was sometimes questioned with success in Courts of law. A series of deci- (d) Case of Tailors of IiKivich attack upon them, vol. iii. ji. 333, (1615), 11 Eepoi-ts, 55; Bacon's of English "Works. Abiidg., V. 353. Kyd on Corpora- (/) Pulling on the Customs of lions, i. 125. The principle was not London, 62, 66, referring to Wan- adhered to very rigorously ; see 2 Rol. neVs Crt.sc (1739), 1 Str. 675. Cora- Eep. 392. pare the clause in the charter of (c) As to these guilds, see Report Hereford, " We have granted that no of Municipal Commissioners of 1S35 ; one who is not of the guild shall buy Mr. Black's History of the Leather- or sell in the city or its suburbs sellers' Company; Brand's History without the consent of the citizens." of Newcastle. Contrast Mr. Froudc's Pike's History of Crime, i. 184, roseate account of the guilds (History 378. of Eug., vol. i. 48), with AVicklif s (;y) 15 Hen. YL, c. 5, and 19 Hen. 14 THE LAW OF MASTER AND SERVANT. sions, extending from the time of Elizabeth to the end of last century, bears testimony to the efforts made to upset bye- laws excluding from the practice of their trade persons who had not been apprenticed in a certain town or were not free of a particular cit}^ (It). The validity of such ordinances, when founded on prescription or custom, was recognised (i). This con- dition could generally be shown to exist, and hence in most towns " foreigners," that is to say all Englishmen not belong- ing to particular towns, were prevented practising their art or trade. This state of things was not entirely destroyed until the Municipal Corporation Act of 183o was passed (/i). Here may be mentioned one of the momentous events in the history of legislation with respect to labourers — the passing of the 5 Eliz., c. 4 ; a statute which repealed all the former laws on the subject, and which for some centuries formed the principal part of the English law of master and servant. The circumstances in which the Act was passed are thus described by the Royal Commissioners who reported upon the working of the Masters and Servants' Act of 18G7 (0- " In the meantime a great social evil had arisen, with wliich it was necessary that the Legislatiu'e should <,'rap])h', and which it sought to overcome by imposing rigorous restraints on tlie freechan of labour. The great social revolution caused by the suppression of the monasteries, VII c 7 ; 3 lli'n. YII. c. 9 ; 12Hen. vol. i. 131-156. Clfi/ of London YIl. c. G, and 19 Hon. VII. c. 7. 6'((Ar; (1609), 8 licp. 1211). ; Wardai, See Hallaiu's Constitutional History, and 486, as to the debates Cro. YAv/.., 803 ; Ilex v. Harrison on monopolies in tlie reigns of Eliza- (1762), 3 Www 1323, and 1 VA. W. betli and James 1. 372; Woollnj \. Idlr (1766), 4 Bur. {h) Uavcnant v. Jlurdis (1599), 1952 ; llrskith v. BraiUock (1770), ]^Ioorc, 576 ; City of London Case 3 15ur. 1846 ; Maiior of York v. (1609), 8 Kep. 121 b. ; Tailor>< of Wclhank (1821), 4 15. ^: Aid. 438 ; Ijjsvick (1615), 11 Hep. 53; (/raves v. CV;% (1S38), 9 A. & E. Jlo'kcUi v. Braddovk (1766), 3 P.nr. 369. 1846. See also, Kyd on Corporations, (/.) 5 & 6 Will. lY. e. 76, s. 14. i. 131. The.se nionoi)olies seem to (/) Second and liiud IJejiort, p. 13. liavc been relaxed vlien fairs wen; For some excellent remarks on tho "oin" on. dill'erence between the two Stiitutes (tT Almost all the authorities are of Labourers, see I'die's History of collected in Kyd on Corporations, Crime, ii. 78. INTRODUCTION. 15 and by the conseciuent wiUidr;nval of tlie support which those institu- tions aflbrded to the indi,L;ent, and too often to the idle, had led to the dispersion of a multitude of people over the face of the country for the ])urpose of begging, under the pretence of which majiy persons of strength and capacity to labour, but preferring a life of vagrancy and idleness to earning their livelihood l)y industry, too often superadded depredation and robbery. Under these circumstances Parliament set to Avork to suppress vagrancy by comjielling every one wandering with(jut employment to return to their furmer place of abode, to be there relieved if unable to earn their living by labour, but if capable of labour there to obtain employment. Above all, the strong and ableljodied vagrant, known in the language of the time as the 'sturdy' or ' valiant beggar,' was to be dealt Avith with a strong hand and restrained by merciless severity. The primary object of this legislation being to suppress vagrancy, it was thought that the best mode of effecting the purpose was to localise poverty with reference to relief, and labour with reference to employ- ment, in the parish or district to which each individual belonged, or, as it was called, the place of his settlement, which was taken to l)e the place where he was born, or had last resided for a certain period. The misery and want occasioned by the sudden withdiawal of the assistance to the poor, previously supplied by the bounty of the monastic institu- tions, could not but be sensibly felt, and a sense of a duty of pre- venting the needy, aged, and infirm, from perishing from want appears to have been awakened. As yet, indeed, the idea of taxing the wealthier portion of the community for the maintenance of the poor — afterwards embodied in the statute of the 43rd of Elizabeth — had not occurred to the Legislature ; but Statutes were passed calling upon those in authority tu endeavour to induce persons having sufficient means to contribute to a common fund, for the relief of the impotent, and the employment of the ablebodied. To the latter, if he refused to accept employment and to labour honestly, no mercy was to be shewn ; the scourge and j^rison were the alternative of labour. And, while employment was thus to be found at their place of their settlement, for those who had no other means of living, all wandering in search of employment was rigorouslv inter- dicted and punishable as vagrancy. Such, under a succession of harsli and cruel Statutes, passed in the reigns of Henry VIII., Edward VI., and Queen Elizabeth, continued to be the law to the commencement of the last century." The statute of Elizabeth admitted the imperfections and failure of previous Acts controlling wages, and stated that they could not be carried into effect without the great grief and burden of the poor labourers and hired men. 16 THE LAW OF MASTER AND SERVANT. Nevertheless, the Legislature proceeded to regulate the rela- tions of master and servant in their minutest details. The statute mentions the various sorts of artificers then known, and provides that every person brought up in any of the said arts, crafts, or sciences, or who has exercised any of them for three years, unless he has an estate of the clear yearly value of forty shillings, or has goods of his own to the clear yearly value of ten pounds, or is retained with any person in husbandry, or in any art or science, or lawfully retained in the household, or in any office, with any nobleman, gentleman, and others, or unless he has a farm or holding in tillage whereupon he may employ his labour, shall, if re- quired by any person using the art or mystery wherein he has been exercised, be retained, and shall not refuse to serve under the penalty of imprisonment. Section 5 enacts that " no person which shall retain any servant shall put aAvay his or her 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 inbabitcth, 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." Section G provides for one quarter's warning or notice. Section 7 compels all persons l)etween the ages of twelve and sixty, except certain classes, to serve in husbandry. Section 8 enacts that " if any person after he hath retained any servant, shall put away the same servant before tlie end of his term, unless it be for some reasonable and sufficient cause to be allowed as is aforesaid ; or if any such master, mistress, or dame shall put away any such servant at the end of his term, without one quarter's warning given INTKODUCTIOX. 17 before the said end, as is above remembered, that then every such master, mistress, or dame so offending," &c., shall forfeit the sum of 40.s. A servant who departed from his master before the end of his term might be committed to prison (sec- tion 9). No servant within the statute might go from one city, town, or parish to another, unless he first got a testi- monial or licence to depart (section 10). The hours of work were fixed (section 12) ; and the justices were empowered to assess at the Easter Sessions the rates of wages (section 15). To give or to take wages in excess of those proclaimed was an offence punishable by imprisonment. Even more important was the section which declared that " it shall not be lawful to any person or persons, other than such as now do lawfully use or exercise any art, mystery, or manual occupation, to set up, occupy, use or exercise any craft, mystery or occupation now used or occupied within the realm of England or Wales, except he shall have been brought up therein seven years at the least as an apprentice, in manner and form abovesaid." To refuse to be an apprentice and to serve in husbandry was an offence for which the offender might be committed to prison (section 35). To the justices of the peace and mayors was assigned the duty of hearing and determining offences against the statute. One indirect effect of this legislation was to prevent labourers moving freely to and fro in search of employment. This had also been the purpose of previous laws as far back as the 23rd of Edward III. The 12 Kichard II. c. 7 (1388), laid the foundation of a settlement law (m), for it ordained that beggars should abide in the cities and towns where they were dwelling at the time of the proclamation of the statute ; if the people could not maintain them, they were to go to the towns where they were born, within forty days after the pro- clamation, and there abide during their lives. Other statutes with a similar object, but of still greater severity, were {m) The law of domicile before Removal (Parliamentary Papers, llns, as is shown hy Jlr. Coode in his I60I), p. 7, restricted locomotion. Report on Law of Settlement and 18 ■ THE LAW (»F MASTKU AND SERVANT. enacted during the reigns of Henry A''II. and Henry VIII. (n). The most remarkable of these was a statute passed in 1547. It empowered the justices to cause a runaway servant to be branded Avith a hot iron, and to be adjudged a " slave." This extraordinary statute — apparently a deliberate attempt to reintroduce slavery — was repealed in 1549. The 39 Elizabeth, c. 17, and 43 Elizabeth, c. 2, made provision for the removal of vagrants to the place of their birth or last legal settlement. Then came various acts of the time of Charles IL, William and Mary, and Anne (o). Thus was created a settlement system which lasted with few modi- fications from IGOl to 1834, and which helped to tie the labouring poor to their birth-places, no matter how little their services might be there in demand. To clench this policy, laws were passed to prevent English workmen going abroad ; and as late as 17()(! they were put in force (see State Papers, Domestic Series, 17G6 — 17(>J), xxxvi.). The Statute of Labourers of Elizabeth gave justices power to " limit, rate, and appoint" the wages of artificers. The justices claimed jurisdiction to order payment of wages (jy) ; and the provisions of the statute were extended by the Legis- lature (q). By the beginning of last century justices had ceased to assess wages regularly. About this time they re- ceived a new kind of power from Parliament. From the reign of George II. to that of George IV. a series of statutes was passed with the object of giving the justices authority to settle disputes and difficulties between masters and work- men. The first of these was the 20 Geo. II. c. IJ). It gave summary jurisdiction to the justices in disputes between masters and servants. " All complaints, ditierences, (*() Iicevcs' Hi.ston- of English toiii'iiiciit of the yearly value of ten Law, iii. 6(i2. " IhhuhIs." Sue also tlie .'ith of Geo. I., (o) Of the chief of these Acts (14 c. 27, ami 23 Geo. II., c. 13, in- (Jha.s. II., c. 12, l(i()2), Mr. Coode tciulcd to iirevent enticing ahroad of .says, that it " destroyed tlie right artificers. of locomotion and free choice of (]>) The King v. Popr (1699) ; r> doniieil(! of tlie entire Englisii j)eoplc, Jlod. 419 ; iiV.r v. Govch [llOl) ; 2, excepting only the comparatively Salk. 441. small number who could hire a {q) 2 James I., c. 6. JNTI{()I)U(TK»N'. 19 unJ disputes," says scctiuu I, "which shall happen or arise between masters or mistresses, and servants in husbanchy, wlio sliall be hired for one year or longer, or which shall hapj)en or arise between masters or mistresses, and artificers, haudi- craftsnien, miners, colliers, keelmen, pitmen, glassmen, potters and other labourers employed for any certain time, or in any other manner, shall be heard and determined l)y one or more justice or justices of the peace of the county, riding, city, liberty, town corporate or place, where such master or mistress shall inhabit." The justices might make such order for pay- ment of so much wages as seemed just and reasonable, provided that the sum did not exceed ten pounds in the case of any servant, and five pounds in case of an artificer or labourer. Section 2 states " that it shall and may be law- ful for such justice or justices upon application or complaint made upon oath, by any master, mistress, or employer," " touching or concerning any misdemeanour, miscarriage, or ill behaviour in such his or her service or employment, to hear, examine, and determine the same ; and to punish the offender by commitment to the House of Correction, there to remain and be corrected, and hold to hard labour for a reasonable time, not exceeding one calendar month, or otherwise by abating some part of his or her wages, or by discharging such servant, &c." Provision was also made for hearing the ser- vant's application or complaint against his master, "touching or concerning any misusage, refusal of necessary provision, cruelty, or other ill treatment," and the justices were em- powered to discharge the servant if matter of complaint were proved. The Court lield that " there to be corrected " meant corrected by whipping (r). This statute was extended by .*U Geo. II. c. 11, to servants in husbandry hired for less than a year, and by the 4 Geo. IV. c. 34 and 10 Geo. IV. c. 52, to persons engaged in manufactures. Section .S of the former enacted that if any servant in husbandry, Ovc, "shall contract with any person to serve (/•) Jicvy. J{os-'C!son{lSn), UEixst, 605. 20 THE LAW OF MASTER AND SERVANT. him, &c., and shall not enter into or commence his service according to his or her contract (such contract being in writing, and signed by the contracting parties), or having entered into such service shall absent himself from his or her service before the term of his or her contract shall be com- pleted, or neglect to fulfil the same, or be guilty of any other misconduct or misdemeanour in the execution thereof," any nistice might issue his warrant for the apprehension of the servant. Such a servant might be sent to the House of Cor- rection for three months ; his wages might be abated ; or he might be discharged. In Turner's Case (s), the Court of Queen's Bench decided that though the words " lawful ex- cuse " were not in the statute, it was to be read as if they were, and that the offence contemplated by it was absenting from service "without lawful excuse." A servant might be punished under this statute more than once if he persisted in absenting himself. In Ex iDarte Baker (t), and Unwin v. Clarke {ii) the Court of Queen's Bench held that, as the con- tract was still in force, he might be punished for a fresh breach of it, and in the latter case it was also decided that io?iayi(?e belief by the servant that he could not be com- pelled to return was not "a lawful excuse." A new departure in legislation with respect to differences between workmen and employers took place in 18G7. A Select Committee of the House of Commons having reported the year before that the law relating to masters and servants was objectionable in several respects, the 80 & 31 Vict., c. 141, was passed. The magistrate by whom disputes between employers and employed were heard might order an abatement of the whole or part of the wages, direct that the contract be fulfilled, annul the contract, assess the amount of compensation, or impose a fine in case of simple breaches of contract. Imprisonment might be inflicted as a consequence of disobedience to the orders of (,s) (1816), 9 Q. B. 80. (") (ISOG), L. E., 1 Q. B 417 ; (t) (1857), 7 E. & B. 697 ; 2G L. J. sec, liowevcr, Kx pnrtr liakn- (ISf)?), M. C, 193. 26 L. J. M. C. 153, 2 H. & N. 219 ; INTRODUCTION. 21 the Court, In cases, liowever, of breaches of " an aggravated character," tl^e offender might at once be committed to prison with or without hard labour. This statute has been repealed by the Employers' and Workmen Act of 1875 (38 & .30 Vict., c. 90), the text of which will be found in the second part of this volume. For the first time the Legislature in this Act ceased to regard a breach of contract of hiring and service as an offence punishable by imprisonment. This sketch ought not to close without further refer- ence to the 5 Ehz., c. 4, the corner stone of the labour laws of England. In last century that Act ceased to be rigorously applied. It was, however, still unrepealed. Any single man between twelve and sixty, any married man under thirty, any woman between twelve and forty, not having any visible livelihood, might be compelled to go out to service " for the promotion of honest industry." The regulations of the 5 Elizabeth Avith respect to service in husbandry, the necessity of a labourer procuring a testimonial before quitting his parish, the hours of work, and the powers of justices to settle the rates of wages were still part of the law of the land. But the justices ceased to settle wages ; and they were not compelled to do so. Both masters and servants disregarded the law as to testimonials (see complaints as to this in "Laws Concerning Masters and Servants," published in 1767, p. 238). The Courts, too, had shown no favour to- wards the Act. They had early confined its application, so far as regards apprenticeship to trades, which had existed at the passing of the Act, and which required skill for their exercise (x). Economists condemned its operation ; judges from the bench questioned its policy (y) ; and the Legislature .andiJ. V. Youlr (ISGl), 30 L. J. M. C. Camp. 397 : see also 1 Bur. 2, and 234 ; 6 H. .V: N. 753. 4 Bur. 2450 ; and Adam Smith's (.'•) (1613) 2 Bui. 18G. The dis- Wealth of Nations, Book i. c. x. tinctions were curious. Thus bar- (y) Lord :\Ianstield, in l!>of)tard v. bers were ^yithin the statute, Chitty Chase {17 o6),l Bur. 6; Lord Kenyon on Apprentices, 117 ; Viner's Abridg., in Smith v. Company of Armourers, Trade A. Coachmakers, on the other (1792), 1 Peake, 199; Dolben, J., in hand, were not, because coaches were Hobbs v. Young (1690), 3 Mod. 317. not introduced until about 1580, 2 2Z THE LAW OF MASTER AM) SEKVANT. introduced a long series of exceptions in favour of many classes (c). The justices ceased to settle the rate of wages ; and Avhen journeymen weavers, with a view to keep up their remuneration, sought to compel the justices to fix a rate of wages, the Court of King's Bench declined to interfere by mandamus {a). The establishment of factories led to its disuse, and made it highly inconvenient in the woollen trade, which was excluded in 1809 from the operation of the statute (6). In 1814 the provisions of the Act of Elizabeth relative to apprenticeships Avere repealed (c). Thus ended the old industrial system of England. In the second part of this volume will be found the chief statutes which have been passed with reference to master and servant. They are numerous and important. Parlia- ment has passed a series of Acts known as the Factory Acts, beginning with the 42 Geo. III., c. 73, in 1802, and ending with the Factory and Workshop Act of 1878, with a view to improve the lot of women and children labouring in factories. It has consolidated in the Merchant Shipping Act of 1854, and other measures tlie law relative to seamen. The evils produced by the practice of jDaying workmen in goods instead of money early attracted the attention of the Legislature, and led to the passing of various Acts, which .were replaced by the measure now in force { Chas. and 1 James I. o. 0, iu regard to the II., c. If), and one of the last 50 Geo. assessment and rating of wages by tlio III., c. 41, s. 22. justiecs. (a) Era- v. Vumbrrhind (1S13), 1 ' («:) ^A Ceo. III. c. »6. M. k S. 100. (d) 1 ic 2 Will. IV. c. 37. (b) 49 Geo. III. c, 109. rr.i Ceo. (c) 5 Geo. IV. e. 'J7. III. c. 40, repealed the .0 Eliz. c. 4, INTRODUCTION. 23 man of these days is tliu.s iinmoas\iral)ly removed, not only from the villain as described by Bracton, but from the free workman of Tudor times, who was bound by the rules of liis guild, who must often take what wages others had deter- mined to be his duo, and who could not move freely about. APPENDIX A. Traces op Villenage. It is often contended that several peculiarities of the law of master and servant may be traced to tlie time wlien the villain was the pruperty of his lord (a). The following are some of the principles said to be borrowed from villena^'e : (1.) There is authority, as will be seen, for the pro])osilion tliat a master may justify an assault committed in defence of his servant. This may liave oriij,inated in the notion that, toniiote a phrase in one of the Year Books, le servant est en manner son chattel (b), or, to (piote the language of Crook, J., in Seaman v. Cuppledick (c), that " The lord may jusiifie in defence of his villain for he is his inheritance." But the .servant may also justify an assault in defence of his master {d) ; and these rights may be deduced from an obligation in the master and ser- vant as members of the same household to render each other protection. In early decisions will be found many expressions which show that the relations of master and servant, fatlier and children, husband and wife, were regarded as in many resjiects the same {e). (2.) Tlie liability of a master for the acts of his servant in the course of emjiloyment, which is treated of in Chapter XXVllL, is sometimes (rt) Mr. Willes's arguTiient in Z»7;i.- jury) a master interposing when his iey v. Gyc (1853), 2 E. & B. 216 ; servant is assailed is not justifiable Holland's .lurisprndcnce, 194. under the cireuuistances of the case, {b) 19 Henrj'-VI. I'd. 31, 6, pi. 66. as well as a servant interpo.sing for ((■) (1614), Owen, 150. liis nia.ster : it rests on tlie relation." (f/) There is no doubt as to the right Sec also Dalton's .Justice, 121 ; Httw- of the servant ; and it has been held kins' 1'. of C. ii. 60, and Pulton, that a servant may justify an assault De Pace Regis, 13. There is authority in order to obtain repossession of for holding that a master may aid liis his master's property. Blade v. Higgx servant in bringing an action without <1861), 10 C. P)., N. S. 713. On the being liable for maintenance. Russell other hand, the right of the master to on Crimes, vol. i. 354 ; Blackstoue, ju.stify an assault in defence of his i. 428. servant has been questioned, Lcciccrd (e) See the curiotis i)assage in V. BusUm (1696), 1 Salk. 407, and Hale's Pleas of the Crown, i. 483, 1 1^(1. Ray. 62, on the uusatislaetory where it is said, "The like law had ground that he could have an action been for a master killing, in the for loss of service. But this was necessary defence of his servant, the not followed in Tkkcll v. Read husband in the defence of the wife, (1773), Loft. 215, where Lord Mans- the wife of the hu.sband, the child of field said. " 1 cannot tell them (the the parent, the parent of the child 24 THE LAW OF MASTER AND SERVANT. ascribed to the theory, once true of villains, that the serA-ant was the pro- perty of the master, wlio oii.L;ht to answer for tlieacts of a person Avho had no rights apart from his masti-r. Unu nbjection to tho accuracy of this view is, that the ]irinciple of liability, as now understoi.d, was not clearly laid down until long after villenage was extinct, and that for some time after it was destroyed, a master's responsil)ility was often described as more limited than it is now ailmitted to be. "While villenage disap- peared about the beginning of the seventeenth century, no clear traces of the modern doctrine of the masters lialiilitv exist before the time of Holt, C.J. (/). (3.) To the influence of villenage is sometimes ascribed the principle of the Common Law, that possession by servants of their masters' goods is regarded as possession of the master himself. Hereafter (j/) it will be necessary to return to this principle, which is productive of import- ant conse([uences, civil and criminal. In the oldest cases on the sul)ject there is no reference to villenage (/t). The distinction between pro- pertj", possession, and mere ddcntio, exists in the nature of things, and must be more or less clearly recognised in all systems of jurisprudence. Ko doubt the English lawyers foimd in the Civil Law the distinction. The development of its conse(iuences was dilferent in the two systems, because the Roman lawyers were chiefly concerned with the cases in which possession existed without property according to the Jus Quiritium, while the English Common Law was mainly interested in the cases in which persons had bare detcntio, and not possession, and could be indicted for larceny in the case of their converting chattels (i). (4.) It has also been suggested that the action for enticing or harbour- ing a servant originated in the same way. According to the view put forward by Coleridge, J., in Lumleij v. Gye {1-), no action for enticing away or procuring a servant to depart lay before the Statute of Labourers, the 2;3rd Edward III. The objections to this view are neither few nor unimportant, and most of them are stated Ijelow (/). (5.) At Common Law a master has the right to correct or chastise . . . for they arc in a mutual relation more v. Grccnhanlc (174.')), "Willes, to each other." He classes the rela- 577. 2. The action for enticing away tionship of master and servant has survived the repeal of the Statute amongst "relationships ojcononjical." of Labourers. C. As is jiointed out Hale's Analysis, p. '66. in Smith's Master and Servant, re- (/) See cliapter xxviii. Icning to Lut. ii. 1548, the (;/) Chapter iii. ciicuinstaiice tliat the writ for (h) See, however, Bracton, f. 1C5. enticing away lecited the Statute did (i) Chajjter iii. not necessarily sliow that the action \k) (1853), 2 E. & B. 216 ; 1 W. did not lie at (.'oniniou Law. 4. K. 432 ; Bov-cn v. Hull (1881), L. 1{. Pulton, p. 3, citing a case in 22 Lib. (; Q. B. D. 333 ; 29 W. II. Ass. Kd. III., p. 70, decided three (/) 1. It is not certain tliat at years bel'ore tiie Staiute, shows that Conmion Law an action for Iho an artion lay against a person who by wrongful i>rocuring of the violaiiou menaces drove away a servant. of other contracts than hi.ing and rnltun also states the law in the service would not lie. See Cronipuon, same manner willi respect to the J., Luiahy v. (hjc, 2 E. k. \). 230, enticing away of servants and . and that if the jirojierty in the slave & Aid. 354 ; BHroii v. JJcmudu is interfered witii hy a 15riti.sh sub- (1848), 2 Ex. 167 ; Scmlon v. lIUilijc ject, to tlie injury of th(! owner, an (I860), 8 (A B., N. S. 861; 29 L. .(. action for damages will lie to the ('. ]'. . 348. The effect of tlicse extent of the loss sustained." The decisions is thus stated by Coekljurii. liictuiu of I'.est, C.J., in Forbes \. <'..!., in his memorandum on tlie Cuflurnir (1824), 2 15. k C. 468, subject, to be found in the rcjiort of that " no action founded upon a. tlie lloyal Commission on Fugitive right aiising out of slavery," could Maves, ]>. xxvii. : " 'i'he.se ca.scs be maintained in Kiiglisii courts, establish beyoml controversy that the must therefore be takoi with reser- tribunals of this country recog}iisi' vation. The iirojiositiou at the the right of projierty of the owner of head of this chapter must be read MASTER AND SERVANT AND MASTEI! AND SLAVH. 31 Slavery being illegal in this coimtrv, it lias often been contended that contracts of hiring and service for liR- are in substance slavery, and as such sliould Ije regarded as null and void. In some countries the inaxim iierno potest locare 02)11^ In pevpctiiu'in is strictly applied (/) ; but licre a contract to serve for life is valid, provided it be not open to the ob- jection of fraud or duress, and provided there be considera- tion for the promise. This was first decided in 1887 by the Court of Exchequer in Wallis v. Day (m). The plaintiff, sold his business as carrier to the defendants, and cove- nanted that he would liencefortli during his life serve them as an assistant in the trade of carrier. The plaintiff's cove- nant to serve was held good. A contract of hiring must not bo made a cover for the reality of slavery. Thus English law will not recognise in a master aright to imprison his servant for disobedience to orders or any other offence, even if a servant agreed to such terms of service {n). The Common Law wonld not even recognise the in the light of the above de- cisions. {I) On nc pcul nigagcr scs services qu' a temps on pour cnlreprise ilttcr- ininic, Art. 1780 of Code Civil. See JI. Laurent's Principcs clc Droit, Civil Fran(;ais, 25, 542, Bi meme Ic tcmps stipidi etait tellcment lonr/ qu' il pM iquivaloir d une alienation de he liberie, Men qu'il ne compril 2>(is Ic vie cntierc clu locatcur, lcsjuges2>our- raicnt roinpre Uit, tcl cii'jagciiicnf. Troplong's I^ouage, ii. 288. M. Lau- i"ent takes up the same position. So i'ar, however, as his remarks do not relate to cases in which there is no consideration for tlie promise to ser\c for life, they would be fatal to all contracts of hiring and service, what- ever might be their duration. In Allen V. S/wne, JMorrison's Dictionary of Decisions, 23, 9454, a contract to serve three terms of nineteen years was "reduced," as being in restraint of trade. As to other Scotch deci- sions, Campbell's edition of Fraser on Master and Servant, 3, 4. (;)() (1837), 2 i\I. & Vr. 273. In Viner's Abridg., blaster and Servant, N. 5, XV. 323, it is stated that a contract to serve for life nnist be liy deed. The reference given is 2 H. f. 14, p. 15. The action, however, ia this case was not l)y the master against the servant upon a contract to serve for life, lait an action of simple debt against executors by a servant to recover arrears of wnges for ser\ices actirally j'crformed. Such an action was not then maintainable. 3 iV; 4 Will. lY. c. 42, s. 14. The case, too, turned on the Statute of Labourers. See also I31ackstone,i. 424; Chitty on Contracts, 10th ed., 532. (/(.) Clarke v. (,'apc (1596), 5 IJe- ports, 129. It turns on the doctrine of Magna Charta, c. 9, Xullus liber Jiiimii imprisonctur ; Foster v. Jacksov, (no date; but in time of Charles II.), Hob. 61. See the protest of Ellen- borough, C.J., in Ile.e V. Stowmarket (1808), 9 East, 211, against the idea that a parish apprentice could Ije transferred as if a parish slave. 32 THE LAW OF MASTER AND SERVANT. validity of an agreement by certain workmen or masters to work or not according to the decision of a majority (o). It is said, however, that there is one distinct exception to the prin- ciple that purely servile incidents cannot be attached to a con- tract of hiring ; a master may, it is said, chastise a hired ser- vant (p). Notwithstanding fJicto to be found to this effect, it is improbable that such a right would be admitted in modern times. The authorities in favour of it are old. Some of them referred to the relation of lord and villain ; such a right does not flow from the contract of hiring and service as now understood ; usage is wholly against the existence of so dangerous a power ; and there are dicta — in Wlnstone v. Linn {q), for example — against it. On the other hand, a master may chastise his apprentice for neg- ligence or disobedience, provided it be done moderately (r). The apprentice is placed with the master to be instructed ; (o) Eilton V. Eclerslcij (1856), 6 E. & B. 47. ip) Bacon's Aliridgement, Master and Servant, N. Probably the law upon this subject has changed. It is clear that Hale (History of Pleas of the Crown, 453) and Hawkins (Pleas of the Crown, i. 85) understood that such a power existed. See also Foster's Criminal Law, 262, and 3 Salk. 47. Such, too, seems to have been Holt, C.J.'s, niling in Kcat's Case, whicli was a case of master and servant. Skinner (1097), 668. Black- stone, i. 0. 14, ouly goes so far as to say that "if the master or master's wffc beat any other servant of full (ujc, it is good cause of departure. In an anonymous case of tlie 2Josing duty on male servants^ Herbert v. llriil (ISl(i), 16 Ves. 4S1 (legacy to plain- tiff "if in his service" at time of 36 LAW OF MASTER AN'D SERVANT. upon the distinction between servant and contractor, servant and bailee, servant and a0 (a person in the testator's scrnce at time of date of codicil, but who quitted it before his decease, entitled, under bequest, "to the otlier ser- vants"). nUlinrf V. EUia-. (1845), 9 Jur. 936 (a farm baililf who had lived with testator twenty-eight years, who had £350 a-year, and wIki was entitled to take pu])ils in agriculture, enti- tled under "one year's wages to each of my servants in my service at my death who shall have lived witli me five vears or upwards "). Oqle v. Morij'fui (1852), 1 D. M. & G. 359 (liead gardener, living in one of tes- tator's cottages, and not fed by him, not "a .servant in my dnme.'stic estab- lishment "). Blackimll v. Pennant (1852), 9 Hare, 551 (bequest of a. year's wages to "servants living with mo at tlie time of my dcccasr;, and who .shall then have lived in my service for three years," included servants living in a dilferent house from that in which testator lived ; excluded servants not hired by the yeai'). Thrupp v. CoUdt (1858), 26 r>eav. 147, 5 Jiu-. X. S. Ill (under bequest to "servants in his (testator's) service at the time of his decease,"' two outdoor servants continuouslj' employed at weekly wages, entitled ; not so a boy employed at weekly wages in carrying letters a few months in tlie year, whilst the testator was at his country residence, though the boy was so employed at testator's death). Armstrong v. Clavcring (1859), 27 Beav. 226 (a land agent and house steward, residing out of the house, entitled under a bequest to " all my servants and day labour- ers who .shall be in my service at the time of my death"). Darlow v. Edwards (1862), 1 H. & C. 547 ; 32 L. J. Ex. 51 ; (5 L. T., X. S., 905 (a servant who had been wrongfuUj' dismissed two days before the testa- tor's death, not entitled under beipiest of an annuity, "jTovided she shall 1)0 in my service at the time of ni}' decease "). Ih' Hartley's Trust, "NV. N., May 4, 1878 (legacy to M. B., provided she ri'inaincd in testatrix'.*; service till her death ; testatrix i-e- moved to lunatic asylum : M. U. dismissed with wages in lieu of notice ; order in lunacy directing .sale of ])ro- pcrty of testatrix ; M. IJ. not entitled to legacy). See .Tarman on Wills, M\\ ed., vol i., ]>. 32.'j ; Williams on Kxecutor.s, ii. 1152 ; lledlield on AVills, vol. i. , sec. 53. (/') An embroiderer a servant or labourer within the statute, 47 Ed. III., f. 22; a collector of rents not within it. 19 Hen. YI., f. 53. DEFINITIONS OF MASTER AND SERVANT. 37 arise as to wlio is a servant within the meaning of the many Acts in which the word occurs. Yet the Legislature has rarely attempted to define it. The above definition is not offered as perfect. The term is, in fact, used loosely and in different senses, No definition which would include all its significations in statutes, in settlement cases, in actions for seduction or for enticing away, and in wills, is possible. The word has not been employed in the same sense at different periods of history. It has been extended to relations to which it was not once applicable. Originally the term indicated a sort of status. A servant was generally a member of his master's household. He was in a sense under his master's 'potestas. He is mentioned in the same context as the wife or son or daughter of the house. The relation is often described as one of allegiance (c). The statute of treason, 25 Edward III. s. 5, which enumerates various forms of treason, and which adds " there is another manner of treason (petit treason), that is to say, when a servant slayeth his master, or a wife her husband, or when a man, secular or religious, slayeth his prelate, to whom he oweth faith and obedience," presupposed that master and servant stood to each other in a degree of intimacy which is not now implied. Even at the same date the use of the term has varied according to the subject matter. In actions for seduc- tion, a person who does any trifling act of service is regarded as a servant (cZ). Mere casual temporary employment for a particular purpose will not suffice to make a person a servant within the meaning of some statutes (e). In the case of others this is enough (/). Servant is used, for example, in one sense in the Carriers Act (11 Geo. I. and 4 Will. lY. c. 68, s, 8) {g), and in another in the Larceny Act (24 & 25 See as to the difficulties whicli arose cd., 453; see, however, li. v. Huglics as to what servants could be luuiislicd (1832), 1 Jlood. C. I'., 370. for pettj' treason, 1 Hale 1'. of C, (f) It is often used as a sjTionyra 3 80. for domestic servant, Ycucns v. Noakcs (c) Bacon's Ahridg. V. 333. (ISSO), L. K., 6 Q. B., 538. {d) See Chapter XXIII. [(j) See p. 49. (e) Koscoe, Criminal Evidence, 9th 88 LAW OF MASTER AND SERVANT. Vict. c. 96, s. CJS) (//,). The above definition is offered only us explanatory of a usual acceptation. No Avord in legal lite- rature is more common or more ambiu-uous than " servant." (h) The following are some of the respect to " servant " and " clerk." Skrvant — JiexY. Squire (1818), E. & 1!. 349, (overseers of a township employed prisoner as their accountant and trea- surer ; received and paid all money receivable or payable on their ac- count ; servant or clerk ■within 39 Geo. III. c. 85). J!r.r V. Jlwjhcs (1832), 1 M. C. C, 370, (prisoner employed as thiver to drive a cow and calf and to ]mu^ back tlie price. He Avas employed to receive in one instance only ; witliin 7 &; 8 Geo. TV. c. 29, s. 47). 7.Vr/. V. Tongue (1860), 30 L. J., M. C. 49, (prisoner secretary to a money club ; his duty to summon meetings and to make out the promissory notes on demand and to countersign all chef[ues upon the treasurer ; he re- ceived a salary). Ilej. V. Maedoiiald (1S61\ 31 L. J., M. C, 67, .'i L. T., N.' S., 330, (prisoner a cashier and collector of a firm ; he received in lieu of increase of salary percentage of protits ; no con- trol over business). Jifrj. v. Proud (IS61), 31 L. ,T., M. C. N. S. 71, (paid secretary of a friendly society, whose duties were to attend meetings of lodge, write minutes of proceedings, keej) correct accounts of receipts and exjifuditures, i:c. He was a-membcr of the society). Jieg. V. Ti/e (1861), L. & C. 29, 30 L. J., M. C. 142, 14 L. T., N. S., 259 (prisoner a commercial traveller emphiyed by jirosecutors ; paid by commission ; at liberty to receive orders from others). Jif'j. v. i/«.frosecuturs for any mone}" he received). Jiecj. V. 2,Vc?t (1863), 33 L. J., M. C. 59; 9 L. T., N. S. 452, (prisoiu-r a member of a committee formed of uiembers of two Iriendly societies for the purpose of conducting a railway excursion ; defemhint and others nominated to sell tickets ; received no lemuneration ; he did not pay over proceeds of tickets to person a[i])ointed to receive the money). J!eg. V. (timer (1864), L. & G. 466 ; 33 L. J., M. G. 169 : 10 L. T., N. S. 582 (under-bailitl' of County Court, not seivant of higli bailitf, though apj)ointeil liy him ; servant of the Court). Reij. v. 5oM.c/-.'((1866), L. I?., 1 C. C. 41 ; 35 L. .!., M. G. 206 ; 14 L. T., N. S. 671, (prisoner first employed as agent or traveller for tlic sale of coals, at a salary of one guinea a week and ].s\ a tun commission to cnllect debts. Snbse(|uently on his going into tl:o retail trade salary stopped, and only paiil by commission). DEFINITIONS OF MASTER AND SERVANT. 39 Many contracts relating to work, labour, and services do not establish the relation of master and servant. Bail- 178, (prisoner engaged by U. at weekly wages to manage a shop. U. luiving assigned all his estate and effects to It., a notice was served on prisoner to act as agent of R. in the maiiagenient of the shop. For four- teen days R. received the money from U., who continued to pay prisoner his wages during the whole period. Sub- se(]uently R. reconveycd the estate and effects to (J. But the deed was not registered until after the em- bezzlement charged against the pri- soner. Prisoner servant of U.). Ikxj. V. Carpenter (1869), L. R. 1 C. C. 29; 35 L. J., M. C. 169; 14 L. T. N. S. 572 ; 14 W. R. 773 (pri- soner, who was elected assistant over- seer by the inhabitants in vestiy, and subsec|ueutly appointed to that office by warrant of two justices, and who ptirformed the duties of overseer, well described in an indictment for embezzlement as the servant of the vestry, on the authority of Rc)l V siihiry and partly by a ptTci-ntage on (s) (1857) 2 C. 15. K. S. 790. profits ; a servant within 7 & 8 {t) (1806) 12 Ves. 114. Ceo. IV., c. 29, s. 47.) Sec Re'i. v. (u) (1826) 5 B. & C. 541. J White (18.39), 8 C. & V. 742, as to (.r) (1840) 6 M. k W. 4901 The servant paid by gratuities. point had also been considered in DEFINITIONS OF MASTER AND SERVANT. 4.'d longed to a livery-stable keeper in -whose employment tlie driver was. The plaintiff having been injured in consequence of the negligence of the driver, the question arose whether the owner of the carriage was liable. Two judges, Bayley, J., and Holroyd, J., were of opinion that he was liable. Two judges, Abbott, C.J., and Littledale, J., took the opposite view. The point was finally decided in Quarman v. Burnett, the facts of which were these : the owners of a carriage, who were in the habit of hiring horses from the same person for a day or for a drive, always had the same driver, gave him a fixed gratuity, ami provided him with a livery, which he kept in the hirers' hall. While he was hanging up the livery, he left the horses. An accident happened, and the plaintiff was injured. The Court of Exchequer adopted the view of Abbott, C.J., and Littledale, J. In delivering the judgment of the Court, Baron Parke said, " It is undoubtedly true that there may be special cir- cumstances, which may render tlie hirer of job horses and servants responsible for the neglect of a servant, though not liable by virtue of the general relation of master. He may become so by his own conduct, as by taking the actual management of the horses, or ordering the servant to drive in a particular manner, which occasions the damage com- plained of, or to absent himself at one particular moment, and the like." Baron Parke proceeded to say : — "As to the supposed choice of a particular servant, my brother Maiile thought there was some evidence to go to the jury of the horses being under the defendants' care, in respect of their choosing this particuhir coachman. We feel a difficulty in saying that tliere was an}- evitlence of choice, for the servant was the onhj regular coachman of the job-mistress's yard ; when he was not at home, the defendants had occasionally been Smith V. Lau'rence (1828), 2 M. & Co., L. R. 5 C. P. ; and Kiw/ht v. K I, & Brachjv. Giles {IS55),1]SL k Fo.v, 5 Ex. 721. Would not the Bob. 494. It may be doubted wlicther driver in Quarman v. Burnett have the authorities are [consistent as to been regarded as the fellow-servant this point. Compare Laugher v. of a footman of the hirer ] Pointer with Bourkc v. Wldte Moss 44 THE LAW OF MASTER AND SERVANT. driven by another man, and it did not appear that at any time since they had their own carriage, the reguLir coaclnnan was engaged, and they had refused to be driven by another ; and the circumstances of their having a livery, for which he Avas measured, is at once explained by the fact, that he was only the servant of Miss jNIortlock (the livery-stable keeper), ever likely to drive them. Without, however, pronouncing any opinion upon a point of so much nicety, and so little defined, as the question, Avhether there is some evidence to go to a jury, of any fact, it seems to us, that if the defendants had asked for this particular servant, amongst many, and refused to be driven by any other, they would not have been responsible for his acts and neglects. If the driver be the servant of a job-master, we do not think he ceases to be so by reason of the owner of the carriage preferring to be driven by that particular servant, where there is a choice amongst more, any more than a hack post-boy ceases to be the servant of an innkeeper, where a traveller has a particular preference of one over the rest, on account of his sobriety and carefulness. If, indeed, the defendants had insisted up(in the horses being driven, not by one of the regular servants, but liy a stranger to the job-master, appointed by themselves, it would have made all the difference. Kor do we think that there is any distinction in this case, occasioned by the fact that the coachman went into the house to leave his hat, and might therefore be considered as acting by their directions, and in their service. There is no evidence of any special order, in this case, or of any general order to do so at all times, icifhoiit leaving any one, at the ]i,orses' heads. If there had been any evidence of that kind, the defendants might have been well considered as having taken the care of the horses upon themselves in the meantime. Besides these two circumstances, the fact of the coachman wearing the defendants' livery with their consent, whereby they were the means of inducing third l)ersons to believe that he was their servant, was mentioned in the course of the argument as a ground of liability, but cannot affect our decision. If the defendants had told the pluiutilf that he might sell goods to their livery servants, and had induced him to contiact with the coachman, on the footing of his really being such servant, they would have been liable on such contract : Init this repivsentation can only conclude the de- fendants with respect to those who have altered their condition on the faith of its being true. In the present case, it is matter of evidence only of the man being their servant, which the fact at once answers. We are therefore com])elled to decide upon the (question left unsettled by the case of Lau.rjher v. Pointer, in wliich the able judgments on both sides have, as is observed by Mr. Justice Story in his book on Agency, page 406, ' exhausted the whole leariung of the sulyect, and should on that account attentively be studied.' We have considered them fully, and we think the weight of authority and legal principle is in favour of the view taken by Lord Tenterden and Mr. Justice l.ittledale. The immediate cause of the injury is the personal neglect of the coachman, in DEFINITIONS OF MASTER AND SERVANT. 45 loiiving Ihe horses, wliidi were ), sent his servant to V>.'s store to get a 118, Mass. 114. (Plaintiff, in tlic em- hox which he had bought of P. Uy i)loynicnt of T., whocinphiycd a lart,'c ]KTniission of P. the servant went to nuiiihcr of workmen in drillin<< ami a Inf't for the hox, and lowered it hlastin;: rocks. Plaintiff was sent by down. Throuj,di the ne<,di<,'ence of T. to (iTill and blast rocks in a sewer the servant the box fell, and injured which the defendants were construct- the ]ilaintiff. The Court lield that ing ; the whole work was uiuha- the while so engaged the servant was the general supervision of the defendants' servant of P.) But (|uery. sut.erintendentofsi-wers and foreman; ('■) LumJqi \. G.i/r- (1853), 2 E. & T. paid his m<>n $2-25 a-day, and had B. 21(i ; 22 L. J. (,>. 15.463. Com- 110 ])0wcr to dismiss them or give pare the remarks of Eord Westbury orders; the defendants iMiilT. $2.45 in A'no.r v. Oijr, L. li. .'">, E. & I. each 3) 13 ('. B. 182. Under the.se statutes the Courts held (;/) 1877, vol. x. ]). 123. tliat a man who sold stones from a (li) W(n)d (AFaster & .Servant, p. (juarry on his own estate, or bought 601) thus ilistingui.shes the two rehi- a coal mine, and worked it, and sold lions : " Wlien a ]ierson lets out the coals, did not come within the work to another to bi; dune by him, above words ; Montagu and Gregg's such per.son to Jurnish tlie labour, HIRING AND SKRVICE AND SIMILAR CONTRACTS. Gl Servant and Aiyprentice. Tl)(! distinction between servant and apprentice is of less importance than it was before the repeal of the 5 Eliz. c. 4, s. 5, when apprenticeship was compulsory. That statute made it wrongful for "any person or persons, other than such as now do lawfully use or exercise any art, mystery, or manual occupation, to set up, occupy, use, or exercise any craft, mystery, or occupation now used or occupied within the realm of England or "Wales, except he shall have been brought up therein seven years at the least as an appren- tice, in manner and form abovesaid." This was extended to other trades than those mentioned in the Act ; and the law remained so until 1S14 (j). It is still, however, occa- sionally necessary — for example, with reference to stamps — to determine whether a contract is one of apprenticeship or hiring and service, the rights and duties under the two con- tracts not being in all respects the same {h). In some of the early settlement cases in which the question was considered whether a person had obtained a settlement by contract of service for a year — for example, in R. v. Boltun {I) — it was laid down that a contract of apprenticeship did not exist unless the word apprentice was used ; but at all events, since R. v. Mounisorrcl {in) this has not been held essen- tial. " No technical words," said Lord Kenyon in Rex w Rainham {n), "are necessary to constitute the relation of and the oontractee reservinpf no con- Sadler r. Henloch (IS'lo), 4 E. & ]>. trol over the work or workmen, the 570, and Sproul v. llemmimju-ay, 1-i relation of contractor and eontractee Pick. 1. exists, and not that of master and (() 54 Geo. III. c. 96. Sec remarks^ servant." (Action against secretary oi ieaacl, '^\.\{.,\xy Re Camden Chari- of Commissioners to improve Wicklow tks, L. R. 18 Cli. 1)., \>. 325. harbonr, for placing certain piles not (ic) See with respect to stamps, lighted ; defence that the defendants Chapter XI. For ])nrpcses of em- had committed the execution of the hezzlenicnt Acts an ap])rentice is a work to a certain contractor ; held servant ; It. v. J/ellish (1805), Russ, a f'ood defence.) dilbcrt v. Jfalpin, k Ky. 80. Z^\v. .Tur. N. S. 300. Tlie difficulty (/) (1783) Cald. 360. of distinguishing the two will he best (w) (1814) 2 M. & S. 460. appreciated by referring to two cases ; (») (ISOl) 1 East, 531. 62 THE LAW OF MASTER AND SERVANT. master and apprentice." The words " teach " or " instruct," or the like, need not be employed. The Court will judge from the wliole contract whether the substantial and principal object of the contract be to hire and serve, or to teach and learn ; in other words, to create the relation of master and servant, or that of master and pupil (o). The payment of a premium is strong evidence of apprenticeship, but it is not decisive ; nor will the absence of a premium be proof that the contract is one of hiring and service (p). " Where teaching on the part of the master," said Taunton, J., in R. v. Credl- ton iq), " or learning on the part of the pauper is not the primary, but only the secondary, object of tlie parties, that will not prevent (where work is to be done for the master) the contract being considered one of hiring and service " (r). Servant and Tenant. The same person may be at once the servant and the tenant of another; there is no incompatibility between the rela- tions (s). But in law, the possession of the servant is that of the master ; and from this principle follow important conse- quences with respect to the occupation of premises by ser- vants. (1.) As regards menial or domestic servants, or officials occupying premises belonging to their masters or employers. The cases which arc cited below show that when a servant or an official occupies a house, or room, or land for the purpose of his service, and for the more convenient discharge of his duties, the relation of landlord and tenant is not created ; the servant or official has no estate or interest in the pre- mises or land (t) ; and he did not ac(|uire a settlement by (o) Jt V. Kinr/s Lijnn (1826), ]'.. (.v) Cockburn, C.J., in A', v. Sptir- &C 97 J -^ ^ .^.^j, (iser,)^ L. i{. 1 Q H, 72; 35 (») Bayley, J., in 7?. v. Ki,Hj\s J.. J. M. C. 74. As to steward r jf ' l.cing k'ssce of employer, Hdscij v. (7)*(1831) 2 B. k A. 493. llhoa,h, (1824), 2 S. & S. 49. (r) Sec Api-cudix A to this {!) R. w. South Newton {imO\ 10 chapter. 1^- ^ <-'• ^38. HIRING AND SERVICE AND SIMILAR CONTRACTS. G3 such occupation. " If the occupation of the servant be neces- sary to the service,"^said Cockburn, C.J., in R. v. Spurrell (w), " then I think his occupation is the occupation of the master, although the remuneration which the servant receives is the less on account of his having the advantage of premises, or a house for the purpose of his habitation. On the other hand, if the occupation be not necessary to the service, then the fact that the advantage of the occupation is part of the remuneration of the service -vvill not render that occupation less an occupation qua tenant than it would have been if the man had paid rent." Hence it has been held that a servant who was wrongfully dismissed, and whose chattels had been removed to a place where he might have taken them but did not, cannot recover damages for injury to his goods by the weather {x). The relation of master and servant having been broken, though wrongfully, the former had a right to remove the furniture. It may be added, that a servant residing in premises assigned to him for residence by his master, cannot dispute the title ; and that havino- got in as a licensee, he must first give up possession if he intends to do so {y). When a servant is allowed to remain in a house or room long after the termination of the relation of master and servant is at an end, it may be a question whether a tenancy is not formed. But no tenancy, not even a tenancy at will, is to be presumed from the mere circumstance that a servant does in fact remain in possession for a short time after the termination of the service. Probably the rule is accurately stated in Kerrcdus v. State of Nevj York (z), in which, in answer to a contention that immediately upon the termination of service a tenancy at will arose, the Court said, "In order to have that effect, the occupancy must be sufficiently long to warrant an inference of consent to a different holding. Any considerable delay would be suffi- {u) See note (s). (y) Doc dem. Willis v. Birchmorc (x) Lake y. Camphell (1S62), 5 (1839), 9 A. & E. 662;/)oc dem. /c/(?^- L. T. N. S. 582 ; ])oe dem. Nichvll son v. Baytup (1835), 3 A. & E 188 V. McKcKg (1830), 10 B. & C. 721. [z] 15 Sickle, 225. 64 THE LAW OF MASTER AND SERVANT. cicnt, but I can see no principle which would change the occupant eo instante from a mere licensee to a tenant." (2.) Officers or servants of Government claiming to be exempted from the payment of rates. Pei'sons who occupy property belonging to the Crown merely as servants of the Crown, and solely for the purposes of their duties, are exempt. But if the occupation be more than what is reasonably required for the performance of their duties, they are liable to be rated in respect of the excess («). (3.) As regards the right to vote, the rule is thus stated in "Rogers on Election Law " (?>) : ''Where residence in an official or other house is necessary or conducive to the efficient performance of the duty or service required, and is either expressly or impliedly made a part of such duty or service, there the relation of landlord and tenant is not created. But where, without any obligation to reside in a particular dwell- ing, an officer or servant chooses to occupy a house which is provided for hira, the circumstance that he receives less salary or wages in consideration of the benefit he derives from occupying a house convenient for the discharge of his duty or service, or that he would have an allowance for rent or lodging-money if he did not occupy it, will not prevent him from occupying as tenant " {c). (4.) Very much the same question has arisen in regard to burglary : it being requisite to state, in an indictment for that crime, who is the owner of the premises which have been broken into. It lias been held that if a public servant or other person reside in royal palaces or apartments which belong to the Crown, the apartments cannot properly be described as his ; they are the property of the Crown. Thus, when three persons were indicted for breaking into the lodgings of Sir Henry Hungate at Whitehall, and there stealing certain goods, the judges thought that the indictment must be laid f(n- breaking into the king's mansion called (a) EarlofJUilev. OrlndaU (VSn), 3 Q. I'.. 1 I. AjiiMiiaix B. 1 T. l:. 338. II. V. Mathevs (1777), {!>) VM\\ oil. j). :A. C.iM. 1 ; I'uTtland v. St. Mnrayley, J., took occasion to say that li. v. Minder was " open to much ob- servation." Hunt V. Cobon (1833), 3 Moore & Scott, 790. Servant, employed by Highgate Archway Comi>any ta collect tolls. He lived in the toll- house, and one shilling a week was deducted from his wages by way of rent. The company having con- tracted to sell the land on which the cottage stood, discharged the plaintiff from their employment and gave him notice to quit, to which he assented. Held, not a tenancy, and plaintiff could not maintain trespass for pulling down the toll-house. At Nisi Prius, Tindal, C.J., ruled that there was a tenancy, and the Court appears to have assumed that there was a tenancy before the determination of service. DobsoH V. Jones (1844), 5 M. & G. 112. Surgeon in Greenwich hos- pital, who was re(|uired to occupy rooms in the hospital ; not entitled to vote as tenant. The Court obserA-ed that " the relation of landlord and tenant could not be created by the appropria- tion of a particular house to an officer or servant as his resi- dence where such appropriation was made with a view not to the remuneration of the occupier, but to the interest of the employer, and to tlie more effectual perform- ance of the service requiied from such officer or servant." Mayht'W v. ^'u«auper worked as a hushand- man. Held, that the relation of landlord and tenant existed. " There was," as Williams, J., ob- served, "a renting by one who was not servant." B. V. I'onsonhii (1841), 3 Q. B. 14 ; G Jurist, 642. The occupiers of apartments in Hampton Court, who reside there with their families and provide their own furniture, rateable. Huyhcs V. Chatham (184.3), 5 M. & G. 54 ; 1 Lutw. R. C. 51. A master ropemaker occupied a house in a Government dockyard. He paid no rent for it, and held it as part remuneration for his services. No part of the house was used for public purposes, and he had the exclusive control of it. The distinction to be deduced from the settlement casus, Tindal, C. J., took to be this : — If a servant is not permiitcd to occupy as a reward, in the performance of his master's contract to pay him, but re(|uired to occupy in the performance of his masters contract to seiTe his master, his occupation is that of his master. As nothing in the facts of the case showed tliat the master ro])emaker was required to occupy the house for the performance of his duties, or did occupy it in order to perform them, or that the occupation was conducive to that f)urpose more than any other louse, held that the claimant oc- cupied the house as tenant within 2 Will. IV., c. 45, s. 27. Gamhier v. Liiilfanl (1854), 3 E. & B. 34(;. The governor of a prison rateable in respect of a coach-h(juse and stabling within the precincts of the prison to the extent to which the occupation Not Tenant. in default of payment by the plain- till", to let the pluintitf enter into the premises and carry on therein thetrade for thedeiV-ndant until the agreement should be rotit or loss. The House of Lords, looking to the whole of the articles, and to the conduct of the parties, decided that as between him and them, he was not a partner. Smith V. Watson (1824), 2 B. & C. 401. A., a merchant, bought wlialebone through B., a broker. It was agreed that, as remuneration for his troulde, B. should receive one-fourth of the profits arising from the sale, and bear an eightlv proportion of the losses. Although B. might be liable^to third persons, there was no partnership with A. Pott v. Eyton (1846), 3 C. B. 32. Eyton's name appeared over door of shop kept by J ones, and he re- ceived per-centage of ]irofits ; goods purchased in Eyton's name ; no evidence of credit given to Eyton ; not a partner as to third persons. Eauiiniion v. Clarice (1846), 15 M. & W. 292. Plaintiff sold to de- fendant liis business as a surgeon and apothecary. Plaintitt' agreed to continue to reside at his place of business and to carry on the jno- fession as before for a year, and to introduce defendant to his j)atients. Defendant to allow plaintitt' during the year a moiety of the clear profits ; the deed ilid not create a partnershij). tSiockcr V. Jiroclcelhaiik (1851), 3 Mac. & (I. 250; 20 L. J. Ch. N. S. 401. Agreement between ]ilaintitt' and defendant that the ]>hviiititt' would serve the said "partners •"' as " manager," and that tlie ]ilaiiititr should have the con- duct and management of the busi- ness, and should receive for his services such a sum as would be equal to £40 per cent. u\Hm the nett profits ; no partnership existed. HIRING AND SERVICE AND SIMILAR CONTRACTS. 77 Partner. Xot I'artner. li. V. M'orth-,1 (1851), 21 L. J. M. C 44. Deri-mlant entered into an a,i,'reement "to take charge; of tlie gli'be-laad of tlie Rev. .J. \',. 15. Clarke ; his wile undertaking; tin; dairy and ]>onltry, &c., at lox. a--\veek, till JMicliaelmas, lsr)0, and afterwards at a salary of 1,'2.'3 a year and a third of the clear annual jn-ofit, after all expenses of rent, rates, labour, interest on capital, &c., are paid, on a fair valuati(jn made from Micliaelmas to Michaelmas. Three months' notice on either side to be given, at the expiration of which time the cottage to be vacated byWortley" ; * defendant and his master not partners inter se. Andreu-s v. Purjh (1854), 24 L. J. Ch. 58. Plaintiff employed the defendant to obtain orders for him, the plaintiff allowing to the defendant a commission of 15 per cent, on the gross amount of prohts. The defendant carried on the busi- ness with the plaintiff, but his name was not joined with that of tlie plaintiff ; no partnership inter se. Coxv.Hichnan (1860), 8 H. of L. 267. S. & S., having become em- barrassed, assigned their property to trustees, and empowered them to carry on the business, and to di- vide the income rateably among the creditors. Held, no partnershij) created so as to make creditors- liable to third parties. E. V. MacdonaUl (1861), ,31 L. J. M. C. 67. Cashier and col- lector of a firm, received in addition to fixed salarj- a certain per-centage on profits ; was not liable to losses, and had no control over business ;: a servant. Boss V. Parhjiis (1875), L. P. 20 Eq. 331 ; 44 L. J. Ch. 610 ; 30 L. T. 331 ; 24 W. P. 5. Agreement between plaintiff" and defendant to carry on under- ■\vriting business in the name of defendant ; all policies, losses, and 78 THE LAW OF MASTER AKD SERVANT. Partner. Not Partner. averages to T)e .signed uiid settled by defendant, or Ijy tlie ]ilaintiir as his agent. Plaintilt' to be ])aidor allowed a salary or sum vi £\!'^0 per annum, ami one-filth of tlie profits ; plaintitl to keep the books of accounts, he obtaining such as- sistance from time to time as he may lind neces.sary, subject to the approval of the defendant ; i)lain- titf not to bear any loss; contract, one of hiring and service and not of ])artnership. See also BuUen v. t. It implied, no doul)t, that the plaintiff had been disturbed in the possession of his property ; but owing to the absence of other remedies — no action on the case' is mentioned in the books until the reign of Eiw. III., 22, Ass. 41,— the G 82 THE LAW OK JIASTEK AND SERVANT. action of trespass m';"13 fieijiicntly iiseil in circumstances to wliicli it was nut obviously applicable. As late as the reign of Elizabeth it was still luiilecided whether a master could maintain trespass against a servant for taking and carrying away his goods which wen; in the custody of the K-rvant, who was employed in his master's shoj). The Court decided in J>lo.-;s v. Hohaiin, Owen 52, that trespass lay in tliese circumstances. See as to master's posso.ssiou, Hall v. DavU (1825), 2 C & P. 33. On the other liaud, as against a mere wrongdoer, a servant had such pos- .viission as enabled liim to maintain an action of trespass. (Chitty's Pleading, i. 196.) 4. For many other puri)oses the pos3essi(jn of the servant is that of the master. Thus in bankruptcy it is held that goods whicli are in the ])Osses3ion of a servant are within the order and disposition of his master, tmd as such pass to his creditors. This is illustrated by Hnggard v. Machenzio (185S), 25 Beav. 4!)3. A Scotch firm established a branch in London, which was wholly conducted by an agent and manager at a fixeil salary. It was agreed that he was to have a general lien on all goods consigned to him for bills accepted by him for the firm. The ~\Vhen a son had possession of certain goods as the servant of his father, and for tlie purpose of carrying on business for his father's benefit only, it was held that the goods did not pass to the sou's assignees under the 21 James I., c. 19 ; Stafford v. Clark (1823), 1 C. & P. 24. See the curious case, Jachson r. Irviii (1809), 2 Camp. 48, where a warrant under iifi.fa. against a jierson was directed to his servant and another person as special bailitt's, and E:c imrk Majorihanlcs, De Gex (1847), 4()f), as to the effect of joint possession of goods by servants of bankrupt and owner ot goods. CHAPTER IV. PARTIES TO THE CONTRACT. Any one who is of the acjc of twenty-one, and is under no legal or natural disability, may make either as master or servant a valid contract of hiring and service. This proposition is imperfect and unsatisfactory : but it is impossible to comprehend under one head the various forms of disability or qualified power of contracting, such as idiocy, infancy, coverture, &c. (a). EngHsh law scarcely recognises the distinction known to and of so much importance in Roman law between liberales operm and illiberal es opercv (h), occupations for which no wages proper were given, and those for which they were. But there is a peculiarity with respect to counsel or barristers. The relation of client and counsel is incompatible with that of master and servant ; there can be no contract of hiring between them with respect to litigation. The whole subject was reviewed by the Court of Common Pleas in Kennedy v. Broun (a"!, and the chief conclusion wliich was (a) Smith's Jlastor and Servant, 1 ; of inciliciil practitioners to sue for Wood's Mnstcr and Servant, 8. fees, see Medical Act of 1858, and (//) Windsclieid, ii. s. 404. Apothecaries Act, 55 Geo. III., c. (c) (1863) la a B. N. S. 677 ; f> 194 ; and as to the state of the law Jur. N. S. 119 ; 32 L. J. C. V. ItiT ; before the passing of the former Act, 11 W. II. 284 ; 7 L. T. N. S. 626 ; see Vrifch v. Ilusadl (1342), 3 Q. 13. action on a promise, in considcra- 028 ; 12 L. J. Q. 1>. 13. "The phy- tion of services as counsel, held not sician has a claim, usually recognised, to lie. See remarks on tins case in to remuneration for his services ; but Pollock on Contracts, 3rd ml.. 6'-\S ; lie has no legal title to it." He also Most'piy. MoM-jin (1870), Ii. R. ^ could, liowcver, have made a contract Ch. 457, and Rohcrtson v. McPonnqJi, with respect to it. 14 Cox, C. C. 469. As to the ri-ht u 2 84 THE LAW or MASTER AND SERVANT. come to was thus expressed : " We consider that a promise by a client to pay money to a counsel for his advocacy, whether made before, or during, or after the litigation, has no binding effect ; and, furthermore, that the relation of counsel and client renders the parties mutually incapable of making any contract of hiring and service concerning advo- cacy in litigation." A person who is under a binding contract to serve A. for a certain time, cannot enter into a binding contract with B. for the same period. " One who has contracted," says Lord Ellenborough, in R. \. Norton, "a relation which disables him from serving any other without the consent of his first master is not sui juris, and cannot lawfully bind himself to serve such second master "(fZ). Hence the Courts refused to admit that soldiers gained settlements by hiring and service while they were still in the employment of the Crown (e). Ixi R. V. l^orton{f) it was held that a deserter from the Kino-'s service could not be " lawfullv hired " within the meaning of 3 Will. & Mary, c. 11, s. 7. But one who is not in all respects the servant of A., because he has previously entered into a binding contract with B., may be the servant of A. in such a sense that A. will be liable to him for his wages, and will be responsible to third persons for his acts. {(l) Ji. V. Jlindringham (1796), 6 service as would givi- a sottlcincnt T. It. 557. A., an infant indentured unless the master had an ahsoluto as an apprentice to B. ; during the right to the services for the wliolc apprenticeship he entered the navy time. On the other hand, it was with tlie consent of his master ; hut held that hiring for a year by a his articles were not delivered U]>. militiaman, if tlie fact of' his being After quitting the navy, and before such were made known to the master the exiiiration of the apprenticeship, at the time of hiring, gave a .settle- he hire(i himself to C. Held, that mcnt ; II. v. WcslcrleHjh (1773), A., not being sui juris at the time, I'.urr. S. C. 753 ; R. v. Winchfomb could not enter into a legal con- (17S0), 1 Doug. 391 ; It. v. 2'aun- tract. As to difference between ton (1829). 9 H. k C. 831 ; R. v, contract with soldier and one with ,S7. John (IS'29), 9 H. & C. 896 ; R. infant, R. v. Chilksford (1825), 4 v. Elmlcy Castle (1832), 3 B. k Ad. B. & C. 94, 100. 826; R. v. St. Mary-at-lhc-n^aU (<•) 7.'. V. BcauUcu (1814), 3 M. (1834), 5 B. k Ad. 1023 ; R. v. k S. 229. A soldier, though not ff'itncsham (1835), 2 A. & E. 648 ; " lawfully hired" within the meaning case of member of a Volunteer corps of tlie statute, could have recovered under 44 Geo. III., c. 54. wages for hi.s services. The Court [/) (1808), 9 East, 206. refused to find such a hiring and PARTI K3 TO THE CONTRACT. 86 The position of servants and apprentices who enlist in the army is now governed by statute. Sect. 9G of the Army Act, 1881 (44 & 45 Vict., c. 58), states that "the master of an apprentice in the United Kingdom who has been attested as a soldier of the regular forces may claim him while under the age of twenty-one years, as follows, and not otherwise : (1.) The master, within one month after the apprentice left his service, must take before a justice of the peace the oath in that behalf specified in the First Schedule to this Act, and obtain from the justice a certifi- cate of having taken such oath, which certificate the justice shall orivo in the form in the said Schedule, or to the like effect : (2.) A court of summary jurisdiction within whose jurisdiction the apprentice may be, if satisfied on com- plaint by the master that he is entitled to have the appren- tice delivered up to him, may order the officer under whose command the apprentice is to deliver him to the master ; but if satisfied that the apprentice stated on his attestation that lie was not an apprentice, may, and if recjuired by or on behalf of the said commanding officer shall, try the apprentice for the offence of making such false statements, and if need be may adjourn the case for the purpose : (3.) Except in pursu- ance of an order of a court of summary jurisdiction, an apprentice sliall not be taken from her Majesty's service : (4.) An apprentice shall not be claimed in pursuance of this section unless he was bound for at least four years by a regular indenture, and Avas under the age of sixteen years v.'hen so bound : (5.) A master who gives up the indenture of his apprentice within one month after the attestation of such apprentice shall be entitled to receive to his own use so much of the bounty (if any) payable to such apprentice on enlistment as has not been paid to the apprentice before notice w^as given of his being an apprentice." As to servants enrolled in Militia, see Voluntary Enlistment Act of 1875, 38 & 39 Vict., c. 6.9, sect. 78. In regard to seamen volunteering into the Navy, see Mer- chant Shipping Act, 1854, sections 214 — 220. By section 215, ■86 THE LAW OF MASTER AND KERVAN'J. a j)roportionato part of wages dowj) to the time of entiy must be paid by the master. By section 214 seamen are allowed to leave their ships to enter the Navy, and " all stipulations introduced into any agreement whereby any seaman is de- clared to incur any forfeiture, or be exposed to any lovSs in case he enters into her Majesty's naval service shall be void, and every master or owner who causes any such stipulation to be so introduced shall incur a penalty not exceeding {(j) Sec rart 11.. fliapter JX. CHAPTEK V. INFANTS. Contracts of liiriug and service by infants — that is, by persons who have not attained the age of twenty- one — arc voidable at their option, unk^ss they be for necessaries or for the benefit of the infants (a). On coming of age an infant might, at Common Law, ratify a promise previously made by him so as to render it binding. The Legislature, however, has greatly limited the power of ratification. The Infants' Relief Act of 1874 (37 & 88 Vict., c. 02) enacts (s. 1) that, " All contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repayment of money lent or to be lent, or for goods sup- plied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void ; provided always that this enactment shall not invalidate any contract into which any infant may, by any existing or future statute, or by the rules of Common Law or Equity, enter, except such as now by law are voidable." Section 2, Avhich is of most consequence in this connection, says, " No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." It was decided in Coxhead ((/) Coke on Litt. 78 6. 88 THE LAW OF MASTER AND SERVANT. V. MvMls (h) — an action for breach of promise of mamage — that tlie second section does not exclusively apply to such contracts as are mentioned or referred to in the first section ; the section extends to contracts of hiring and service. The chief exception at Common Law to the principle, that infants' contracts do not bind them, was in the case of con- tracts for necessaries, which include, according to Coke's explanation, " necessary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for good teaching or instruction whereby he (the infant) may profit himself afterwards," (c) and which need not exclude many articles popularly known as luxuries. An infant will also be bound by contracts which are to his benefit or advan- tage (d) ; and it is for the Court to determine whether this is the case. Contracts of hiring and service and appren- {!>) (1878), L. K. 3 C. P. D. 439 ; 47 L. J. V. P. 7(51 ; 39 L. T. 349 ; 27 AV. R. 136 ; see also Northcote v. ])ou(jhtii (1879), L. K. 4 C. P. D. 335; Ej; parte Kibble (1S7 5), L. R. 10 Ch. 373 ; 44 L. J. B. 63. As to what will amount to a ratifica- tion of a contract, by an infant, see Cornv:all v. Hav:kins (1872), 41 L. J. Ch. 435 ; 26 L. J. 607 ; 20 W. R. 653 ; infant entered into service of milk-seller, and covenanted not to carry on same trade ; and, after coniinj; of age, ht> continued in the same service for ei<:;litoen months witli- out repudiating his promise. Held, that tliis amounted to ratification. \nBukin\. Forth (1875), 33 L. T. 532, it was held that a minor, who agreed on the lltli Dec, 1871, to serve for live years as a warehouse- man, and who having attained the age of 21 in April, 1873, continued in the sei-vice of his employers, diil not ratify his agreement by writing on th(! 17th of Jan., 1874 a letter saying tluit \w. would give up his situation in twenty-eiglit days. Pro- bably the decision turned more; on the fact that the (Jourt relied on JIarmer V. KiUinij (1804), 5 Esp. 10'2, whicli shows that a promise to bind as a ratification must be given voluntarily by a minor, and with full knowledge that he was released. (c) Coke Litt. 172(7. See Lord Jlansfield's judgment in Zouch v. Parsons (1765), 3 Bur. 1801 ; Bacon's Abridg. " Infancy," I., 3, 360 ; Skrine v. Gordon (1875), 9 Ir. C. L. 479 ; Hill v. Arbon (1876), 34 L. T. 125 ; Hart v. Prater (1837), 1 Jur. 623 (riding-horse a necessary for a chemist's apotliecary, who was ordered by doctor to take riding exercise). As Kelly, C.B., pointed out in Ihjdcr v. Jl'omhwrll (1868), L. R. 3 Ex. 90 (jewelled solitaires and a silver goblet necessaries for a baronet's son), "necessaries" cannot be sejiarated from " its legal ad- junct, suitable to the estate and con- dition of the infant." (d) " And an infant shall be bounden by all acts done by him during his nonage, which acts arc for liis advantage, if not in some special cases ; and, therefore, if an infant at the years of discretion make a bond for his necessary meats and ilrink, or for his necessary ajjparel, or for his schooling, he shall not avoid the same." Perkins, C. I. S. 14. liJFANTS- 89 ticesliip arc primd facie regarded as for the benefit of infants (c). An infant who has hound himself as apprentice to one master cannot before the expiration of the period of service transfer his services to another (/"). But if a contract of liiring and service between a minor and a person of full age be inequitable and prejudicial to the former it will not bind him (g). Thus a contract of hiring and service which subjects an infant to a penalty or forfeiture will not be binding (//). There is no reason why an infant should not be a master (l). (c) Tollock on Contracts, p. 65 of 3rd ed. (/) Ji. V. Amndcl (181(3), f. U. k S. '257; IL v. ChiUcsford (18-25). 4 B. & C. 102 (infant who enters into a contract of apprenticeship ■will he liable to the statutory ruf^ulations applicable to master and servant) ; Wood V. Fenwkk (1842), 10 M. & W. 195 : "There can be uo donbt that, generally speaking, a contract for an infant to receive wages for his labour is binding upon him." In Cooper V. Simmons (1862), 31 L. .1. M. C. 138, Martin, B., & AVilde, B., state that a contract of service is binding on an infant unless it be manifestly not to his advantage. Must the contract, to be binding, be manifestly to the advantage of the infant, or is it binding unless it be manifestly to the prejudice of the infant ? The rule is stated in the former way in A', v. ]Viqston'^%1\), 3 B. & C. 484, and in the latter way in Cooper v. Simmons, by Wilde, B. It is submitted that the first is correct. (q) J!. V. Lord (1850), 12 Q. B. 757 ; 17 L. J. M. C. 181 (an infant bound for twelve months not to en- gage in any other service or business liuring the whole time ; the master free to stop work and wages when he thought fit ; the servant liable to be dismissed for misconduct or disobe- dience, and, in the event of dismissal, to forfeit his wages ; contract held void). Leslie v. Fitzixdrick (1877), L. K. 3 Q. B. D. 229 ; 47 L. J. M. C. 22 ; 37 L. T. 461 ; where the Court of Queen's Beach refused to declare void a contract by which an infant undertook to serve as an iron ship- builder lor five years, at weekly wages, with a ]>roviso that, if the employers ceased to carry on business, or found it necessary to reduce their works, or in consecpience of any accident, they might terminate the contract at four- teen days' notice. " If such provi- sions," it was said by the Court, in a passage which seems to furnish the true rule, "were at the time common to labour contracts, or were in tlio then condition of the trade such as the nuister was reasonably justified in imposing as a just measure of protec- tion to himself, and if the wages were a fair compensation for the ser- vices of the youth, the contract is binding, inasmuch as it was beneficial to him by securing him permanent employment and the means of main- taining himself." This seems to conflict with Birkin v. Forth (1875), 33 L. T. N. S. 532. (/() Coke, Litt. 172 a. ; Bacon's Abridg. " Infancy," I., 1, 356 ; A;iUf V. ArelidnJe, Cro. Eliz. 920 ; Eusseli V. Zc'^ (14Ch. ii.), 1 Lev. 86 ; Fis/ter v. Movbrarj (1807), 8 East, 330, (infant not bound by bond bearing interest) ; Baylis v. Dineley (1815), 3 M. k, S. 477. But see U'ood v. Fenvnek. (i) Hands v. Slaney (1800), 8 T. W. 578 ; ChnppJe v. Cooper (1844), 13 M. k ^X. 252, 258, where Alder- son, B., held that in certain circum- stances a servant would be a neces- sary for an infant ; R. v. St. Petrox (1791), 4 T. E. 196 ; 2 Bott, 377, and Cald. 444. 90 THE LAW OF MASTER AND SKllVAKT. Au iufant may enter into a contract of hiring and service with his father or mother (/.). A father cannot bind his son apprentice without his consent, and the son must execute the indenture. Parish apprentices were, in virtue of a special statute, exceptions to this rule (/). An infant who is apprenticed cannot be sued upon the covenants in an indenture of apprenticeship, except by the custom of London (yn). But apprentices have been always liable to certain statutory regulations {n). (/,■) /;. V. Chillcsfonl (1825), 4 B. k C. 'J4. (0 It. V. C'roviford{18W),&i::\y.t, 2r> ; E. V. liipoa (1808), 9 East, -29;'. ; AY. ]SHcholaii\. St. JJutoIph {18i52), 31 L. J. M. C. 258. Compulsory apprentice- ship abolished, 7 & 8 Vict. c. 10], s. 13. All iiii'aiit iiiaj' have his iiaiuc affixed to the iiidentiue hy an agent ; JL V. Lonrjnor (1833), 4 13. ^ Ad. 647. («i) Bacon's Abridg. , "Infancy" A, 340 ; Gylbcrl v. Fletcher, ( 'rokc, Car. 179; Jennings v. Pitman (19 Jac. ), Hiitton, 63 ; Li/Uu'ii Case (1 Anne), 7 Mod. 16. Nor could the minor be sued at ecpiity, 1 Eij. C, Abridg. 6. The cu.stom of London, which was instituted for the promo- tion of trade, is stated in various ways. Thus, in Bn/rlon v. Palmer (11 James L), 2 Buls. 191: "An infant within the age of fourteen years ; " in Walker v. Xichcihon, Croke, Eliz. 652, " Any infant above the age of twelve years ; " in Code v. Jlobncs (21 James 1.), Talmer, 361, a person bound at fourteen, if the in- denture be enrolled at Guildhall ; in Hall v. Chandler (22 Clias. II.), 1 Mod. 271, "Any person above four- teen years, and untler twenty-one, and unmarried;" .soin Eden'. •< Case {I^Vi), 2 M. & S. 226 (a return held de- fective because it failed to state tliat an apfirentice wjls between the age of fourteen and twenty-one. ) J5y the cus- tom of J..ontl<)n ajiprentices might bo assigned. Viner's Aliridg. "Appren- tices," F. it is stated by Holt, C. .)., in IVinlon v. Wilkes (4 Anne), 1 Salk. 204, that no other cities tlian London have Buch custom. See, however, T. Smith's English Guilds, 209. {n) E.C parte Jhu- is (1794), 5 T. 1!. 715, decides that an infant, on coming of age, may disaffirm a con- tract of apprenticeship. This ca.se is said in li.e jia.tc Gill (1806), 7 East, 376, to have been misreported. It was, however, affirmed in Wreui v. //«■;; (1866), 15 L. T. 180, where it was laid down that an infant must disaffirm his indentures within a reasonable time after coming of age. In M(wrc v. AVuVA (1875), 39 J. P. 772, the Court of Queen's Bench was asked to say whether this rule was altered by the Master and Servant Act, 1867 ; and the Court decided that it was not. It is cited as still binding in text books ; e.ej. Leake on Contracts, 550 ; Smith's Jlercan- tile Law, 56. Nothing in the Em- ployers and Workmen Act, 1875, aijjiarently, atieets the decision. It was early decided that an infant, though not liable to an action on tiie covenant of an indenture, was subject to the statutory regulations afleeting a})prentices ; that is to tlie 5 Eliz. c. 4. The contract ol' apprenticeship was treated as void- ■AAv. P. V. St. Miehola.i\. Con]cson(\8\2), 16 Jlast, 13, this was held not to he an efficient election so as to void inileiduies, and ]irc\-ent (he justices punishing runaway a])prenti('es under 20 Geo. II. c. 19, s. 4. Tiie Courts were careful not to say that, in some INFANTS. 91 It is stated by Blackstonc that a father may " have the benefit of his children's labour wliile they live ^Yitll him, and are maintained by him ; but this is no more than lie is entitled to from his apprentices or servants " (o). The authorities in EngHsh reports and text books on this subject are few (_25). Blackstone cites none in support of his dicturn, though probably it is correct. According to a series of deci- sions in the American Courts, the right to recover for the services of a miuor is presumed to belong to the father, and he is entitled to the earnings of his children unless he has forfeited the right by misconduct or has expressly or by implication emancipated them {q). Accordingly payment of wages to a minor has been held to be no "answer to an action by a father against an employer. " In con- sideration of this obligation on the part of the father to maintain his children," says Story, stating the effect of the American decisions, " the law gives him a right to all their earnines, and in case of his death the mother has the right " (/■). This has been extended to adopted and illegiti- mate children. It is admitted in the American decisions, way, an infant might not during infancy disaftirm a contract of ap- prenticesliip. Gnaj v. Cookson, 16 East, p. 28 ; E. v. HhulringJKHn (1796), 6 T. R. 558, and in such a manner as to make it wliolly inopera- tive. The decision in E.r parte ]) SERVANT. As the agent of licr husband, a wife may contract obliga- tions which will bind him. The question of authority is one of fact to be determined either by evidence of express authority or by circumstances showing implied autliority (ower to bind her husband. There may be cases in which a wife has a similar power when she and her husband are living and cohabiting together, and where the article bought upon credit is of such a kind and character that persons living in the same class of life with themselves, and having the same means, and living in the same neigh- bourhood, are in tlic habit of onlering it upon credit. Take the case of an ordinary butcher's bill ; if it is not the ]iractice of persons belonging to a particular class of life (and undoubtedly sometimes it is not), living in certain neighbourhoods in a certain style, to pay for each joint of meat at the moment of its delivery, and if the practice is to have weekly, monthly, or (quarterly bills, it seems to me that the wife in such a case (c) Notes to Manhy v. Scott, 2 willing to supply liis wife with nercs- Sniitli, L. C, 8tli rd., 44.'5. saiies, ami who has forbidilcn her to (/■) Sec .jud^'mcnts of Braniwcll, jilcdge his credit is not liable for L. if. and Thesif,'('r, Ij. S.,\n Jk ben- necessiiries onlevcd by Inn-, even when /lam V. i/c/^/7i (ISSO), L, 11. .0 Q. I'.. the tradesman who supplied them D. 394. In tliis rase it was held liad no knowledge of the proiiibition. that a husband who is able and MARRIED WOMEN. 95 ■would have a preKuniaMc authority ; and if tlie huslxind mean-; to negative it, ho not only must give her notice that he witlidraw.s it, hut also nmst inform tlie tradesmen in the neighhourhood with whom she mij^ht deal that the presumable authority has heen withdrawn. It seems to me that the authority exercised by a wife in a case such as I have mentioned does not sjjHng merely out of the contract of marriage but that tlie same authority would exist in favour of a sister, or a housekeeper, or other person presiding over the management of the house" ((/). If a wife were penuittod by her husband to carry on a trade or business, she would be regarded as having aiithorityto enter into all contracts, including those of hiring and service, necessary for the conduct of the business (Ji). Equity has long recognised a wife's right to deal freely with her separate estate as if she were unmarried, and she might no doubt hire servants so as to bind it. Recent {<)) Drhenhom v. Mdlon (1880), L. 'R. 5 Q. B. I). 398 ; Juhn-itoii. V. Suvvin- (1858), 3 H. & N. 261 ; 27 L. J. Ex. 341. But see 4.5 & 46 Vict. e. 75. Xect'ssaries would include hiring servants reasouahly tit for her degree. Blackburn, J., in Bazelci/y. Fordn; L. 1!. 3 (J. 11. 563; and Whitrw. (Jmjlcr (1795), 6 T. K. 176 ; 1 Esp. 200. The head note "if a feme co\evt without any authority from hor hushand contract with a servant by deed, the servant liaving perfonaed the service stipuliitinl may maintain assumpsit against the husband," is misleading. It appears ia the report of Espinasse that the deed was used as evidence of a contract which the wife Avould be authorised to make. (/(■) Philllpsoi) V. /Inyfn- (1870), L. B. 6 C. 1'. 38. As to the custom of London by which a married woman trading on her own account may be charged as a feme sole on contracts concerning her business, see Ln.vic v. Phillips (1765), 3 Bur. 1776. In some cases at Common Law the right of action survived to the wife. The i)recise rule as to this can with dithculty be extracted from tlie authorities. The purport of the decisions is thus stated in Chitty, Pleadings, vol. i., p. 34: "In general, the Avife cannot join in any action upon a contract made (hiring the marriage, as for her work and labour, goods sold, or money lent by her during that time : for the hus- band is entitled to her earnings, and they shall not survive to her, but go to the personal representatives of the husband, and she could have no property in the money lent or the goods sold. But when the wife can be considered as the mrritorious cause of action, as if a bond or other contract under seal, or a promissory note, be made to her separately, or with her husband, or if slie Ix'stow her personal labour and skill in curing a wound, &c., she may join with the husband, or he may sue alone. ' .See remarks on this passage in F>ishop on Law of Married Women, vol. i., sect. 106, where the true view is said to be that if a contract is taken to the husband and wife alone with the assent of the former, the action survives to her, and she is entitled to the proceeds as against the rei>rosentative3 of tlie husband, lloper, Husband and Wife, Jacob's ed. ii., 165. 9G THE LAW OF MASTER AND SERVANT. lef^islation lias much extended the power of married women in regard to service and earnings. 20 & 21 Vict. c. 85, enacts— Section 2\. A uife deserted by lier husband (i) may at any time after such desertion, if resident -within the metropolitan di^tl•iet, apply to a police magistrate, or if resident in the country to justices in petty sessions, or in either case to the Court, for an order to protect any money or property she may aaiuire by her own lawful industry, and property which she may become possessed of, after such desertion, against lier 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 that the same was without reasonable cause, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings (/>) and j^roperty acquired since the commencement of sucli desertion from her husband and all creditors and persons claiming under him, and such earnings and j.roperty shall belong to the wife as if she were a feme sole : Provided always, that every such order, if made by a ])olice 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 jurisdic- tion 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 tlie husband or any creditor of or person claiming under the husband shall seize or continue t(j 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 hereby empowered to bring), to restore the specific property, and also for a sum efiual to double the value of the property so seizetl or held after such notice as aforesaid : If any su;h order of protection be made, the wife shall during the continuan/e thereof (//() be and be deemed to have been, during such desertion of her, in the like position in all respects^ with regard to ((■) Absence of a liusliand in his 3 H. & <'. 528. ordiiiaty occupation is not desertion, (I) '27 k. 28 Vict. c. 44, extends lijc parte Ahlrid(jf, 1 S. & T. 88. this to tlie magistrate lor tlie time Tlie wife must not be a consenting being acting as the successor or in jiaity to the cessation of cohabita- the i)lacp of tlie magistrate who JuaJc Uon, Thorn iiHon v. y/wj/iyww (1858), the order of iinitection. 1 S.'& T. 23; 27 L. J. 1'. A: M. 65. (*/') It wimld appear from Ewart Sec also ra/^/(rot V. Fca/wum (ISOS), v. Chnhh (1875), L. H. 20 Ec]. 454, L. 1!. 1 r. & D. 489 ; 37 L. J. P. & that evidence that the desertion is JI_ 37. a eontiiming one must be i)roduced (k) " Earnings" mean lawful cam- not only at the hearing of the cause, ings. anil not riierelbre projierty no- but when it comes on for further l liv keejiing a brothel, jila-iun consideration. V. Micche.l (ISai), 34 L. J. Ex. 68 ; MAHIlli:i) WOMEN'. 97 ])ropt'rty (n) and contracts, and snin,L,' and bi-in;:; sued, as slif! would lie under this Act, ifslic obtained a decree of judicial separation. Section 25. In every case of a judicial separation, the wife shall from the date of the sentence, and whilst the separation shall continue, lie considered as a, feme sole with respect to jiroperty of every descriiitiou which she may acquire, or which may come to or devolve upon her; and such property may be disposed of by her in all respects as a feme aole, and on her decease the same shall, in case she shall die intestate, go as the same would have gone if her husband had been then dead ; Provided that if any such wife should again cohabit with her husband, all such property as she may be entitled to when such cohabitation shall take place shall be held to her separate use, subject, however, to any agreement in writing made lietween herself and her husband whilst separate. Section 26. In every case of a judicial se[)aration, the wife shall, whilst so separated, be considered as a feme sole for the purposes of ccjntract, and wrongs and injuries, and suing and being sued in any civil proceed- ing ; and her husband shall not be liable in respect of any engagement or contract she may have entered into, or for any wrongful act or omission, by her, or for any costs she may incur as plaintiff or defendant : Pro- vided, that where, upon any such judicial separation, alimony has been decreed or ordered to be paid to the wife, and the same shall not be duly paid by the husband, he shall be liable for necessaries supplied for her use : Provided also, that nothing shall prevent the wife from joining, at any time during such separation, in the exercise of any joint power given to herself and lu-r husband. The Matrimonial Causes Act of 1878 (41 Vict., c. 19, sec. 4) states that — "If a husl)and shall be convicted summarily, or otherwise, of an aggravated assault within the meaning of the statute, twenty-fourth and twenty-tifth Victoria, chapter one hundred, section forty-three, ujion his wife, the Court or magistrate before whom he shall be so convicted may, if satisfied that the future safety of the wife is in peril, order that the wife shall be no longer bound to cohabit with her husband ; and such order shall have the force and effect in all respects of a decree of judicial separation on the ground of cruelty." It is necessary to refer here also to the Married Women's Property Act of 1870 (33 .1 .34 Vict. c. 93) and the Amend- (n) This protection extends to earnings which are to be protected," "those things (tools, &c.) which are Asltwurth x. Outram (1877), L. K. 6 necess:iry to make the wages and Ch. D. 923 ; 46 L. J. Ch. 687. 98 TllH LAW or MA^TEU AND SERVANT. mcnt Act of 1874 (37 anel 38 Vict. c. 50). The Act of 1870 (sect. 1) was to this effect : — The wages and earnings of any married woman acquired or gained by her after the passing of this Act in any employment, occupation, or trade in which she is engaged, or which she carries on separately from her husband, and also any money or property so acquired by her through the exercise of any literary, artistic, or scientific skill, and all investments of such wages, earnings, money, or property, shall be deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good discharge for such wages, earnings, money, and property. Botli of the above Acts are repealed by the Married Women's Property Act, 1882 (45 & 40 Vict. c. 75), s. 22. This Act comes into operation on the 1st January, 1883 (sect. 25). 1. (1.) A married woman shall, in accordance with the provisions of this Act, be capable of acquiring, holding, and disposing by will or other- wise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee. (2.) A married woman shall be capable of entering into and ren- dering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate property ; and any damages or costs reccn-ered against her in any such action or proceeding shall be payable out of her separate jiroperty, and not otherwise. (3.) Every contract enteri'd into liy a married woman sliall be deemed to be a contract entered into by her with respect to and to bind her sepa- rate property, unless the contrary be shown. (4.) Every contract entered into by a married woman witli respect to and to bind her separate jiroperty shall bind not only the separate pro- perty which she is ])ossessed of or i-ntitled to at the date of the contract, Init'also all separate property which she may tht-reafter acquire. (5.) Every married woman carrying on a trade separately from her husband shall, in respect of her sejtarate property, be subject to the bankruptcy laws in the same way as if she were a feme sole. 2. Every woman who marries after the commencement of tliis Act shall be entitled to have and to hold as her separate property and to dispose of in manner aforesaid all real and personal property which MARRIED WOMEN. 99 sliall belong to licr at the time of iiKirria;,'e, dv shall be acquired by or devolve upon her after marriage, including any wages, earnings, money, and i>roperty gained or acquired by her in any employment, trade, or occupation in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill. 3. Any money or other estate of the wife lent or entrusted by her to her husband for the purpose of any trade or business carried on l>y him or otherwise, shall be treated as assets of her husband's estate in case of liis bankruptcy, under reservation of the Avife's claim to a dividend as a creditor for the amount or value of such money or other estate after, but not before, all claims of the other creditors of the husband tor valualjle consideration in money or money's worth have been satisfied. 5. Every Avoman married before the commencement of tliis Act shall be entitled to have and to hold and to dispose of in manner aforesaid as her separate property all real and personal property, her title to which, whether vested or contingent, and whether in possession, reversion, or remainder, shall accrue after the commencement of this Act, including any Avages, earnings, money, and property so gained or acquired by her as aforesaid. 12. EA-ery Avoman, Avhether married before or after this Act, shall have in her own name against all persons Avhomsoever, including her husband, the same civil remedies, and also (subject, as regards her husband, to the j^roviso hereinafter contained) the same remedies and redress by Avay of criminal proceedings, for the protection and security of her OAvn separate property, as if such property belonged to her as a feme sole, but, except as aforesaid, no husband or Avife shall be entitled to sue the other for a tort. In any indictment or other proceeding under this section it sliall be sufficient to allege such property to be her pro- perty ; and in any proceeding under this section a husband or wife shall be competent to give evidence against each other, any statute or rule of law to the contrary notAvithstanding : Provided ahvays, that no criminal proceeding shall be taken by any wife against her husband by virtue of this Act Avhile they are living together, as to or concerning any property claimed by her, nor Avhile they are living apart, as to or concerning any act done by the husband A\hile they Avere living together, concerning property claimed by the Avife, unless such property shall have been Avrongfully taken by the husband Avhen leaving or deserting, or about to leave or desert, his AA'ife. 13. A woman after her marriage shall continue to be liable in respect and to the extent of her separate property for all debts contracted, and all contracts entered into or Avrongs committed by her before her mar- riage, including any sums for Avhicli she may be liable as a contributory, either before or after she has been placed on the list of contributories, under and by virtue of the Acts relating to joint stock companies ; and she may be sued for any such debt and for any liability in damages or other- 100 THE LAW OF MASTER AND SERVANT. wise uinler any such contract, or in re.-^pect of any sucli wrong ; and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be ])uyal)le out of her separate pri^perty ; and, as between her and her husband, unless there be any cnutract between them to the contrary, her separate pmperty shall be deemed to be jtrimarily liable for all such debti«, contracts, or wrongs, and lor all damages or costs recovered in respect thereof : Provided always, that nothing in this Act shall operate to increase or diminish the liabilitj- of any woman married before the commencement of this Act, for any such debt, contract, or wrong, as aforesaid, except as to any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for her separate use under the Acts hereby repealed or otherwise, if this Act had not passed. 14. A husband shall be liable for the debts of his wife contracted, and for all contracts entered into and wrongs committed l)y her, before marriage, including any liabilities to which she may be so subject under the Acts relating to joint stock companies as aforesaid, to the extent of all property whatsoever belonging to his wife which he shall have acquired or become entitled to from or through his wife, after deducting there- from any payments made by liim, and any sums for which judgment may have been bond fide recovered against him in any proceeding at law, in respect of any such debts, contracts, or wrongs for or in respect of which his wife was liable before her marriage as aforesaid ; but he shall not be liable for the same any further or otherwise ; and any court in which a husband shall be sued for any such debt shall have power to direct any inquiry or i)roceedings wliich it may think proper for the purpose of ascertaining the nature, amount, or value of such property : Provided always, that nothing in this Act contained shall operate to increase or dimini.sh the liability of any husband married before the conmiencement of this Act for or in respect of any such debt or other liability of his wife aforesaid. 15. A husband and wife may be jointly sued in respect of any such debt or other liability (whether by contract or for any wrong) contracted or incurred by the wife before marriage as aforesaid, if the plaintiff in the action shall seek to establish his claim, either wholly or in part, against both of them ; and if in any such action, or in any action brought in resjjcct of any such debt or liability against the husband alone, it is not found that the husband is lialile in respect of any i)roi)erty of the wife so aci[uired by him or to which he shall have become so entitled as aforesaid, he shall have judgment f<;r his costs of defence, whatever may be the result of the action against the wife iljoiutly sued with him ; and in any such action against husliand and wife jointly, if it appears that the husband is liable for the debt or damages recovered, or any part thereof, the judgment to llie extent of the amoiint for which the husband is liable sliall be a joint judgment against the husband personally and against tbe wife as to her sej)arate pro])erty ; and as t^ the residue, if MAlUtlED Wf)MKN. 101 any, of such debt and dniiages, tlie ju(l<,'iiient sliall be a separate judg- ment against tlie wife as to her separate, property only. 16. A wife doing any act with respect to any property of lier husband, which, if done by tlie husband with respect to property of the wife, would make tlie husband liable to criminal proceedings by the wife under this Act, shall in like manner be lial>le to criminal proceedings by her husband. 17. In any (piestion between husband and wife as to the title to or possession of property, either party, or any such bank, corporation, company, public body, or society as aforesaid in whose books any stocks, funds, or shares of either party are standing, may apply by summons or otherwise in a summary way to any judge of the High Court of Justice in England or in Ireland, according as such property is in England or Ireland, or (at the option of the applicant, irrespectively of the value of the property in dispute) in England to the judge of the county court of the district, or in Ireland to the chairman of the civil bill court of the division in which either party resides, and the judge of the Higli Court of Justice or of the county court, or the chairman of the civil bill court (as the case may be) may make such order with respect to the property in dispute, and as to the costs of and consequent on the application as lie thinks fit, or may direct such application to stand over from time to time, and any inquiry touching the matters in question to be made in such manner as he shall think fit : Provided always, that any order of a judge of the High Court of Justice to be made under the provisions of this section sliall be subject to appeal in the same way as an order made by the same judge in a suit pending or on an equitable plaint in the said court would be ; and any order of a county or civil bill court under the provisions of this section shall be subject to appeal in the same way as any other order made by the same court would be, and all proceedings in a county court or civil bill court under this section in which, by reason of the value of the property in dispute, such court would not have had jurisdiction if this Act or the Married Women's Property Act, 1870, had not passed, may, at the option of the defendant or respondent to such proceedings, be removed as of right into the High Court of Justice in England or Ireland (as the case may be), by writ of certiorari or otherwise as may be prescribed by any rule of such High Court ; but any order made or act done in the course of such proceedings prior to such removal shall be valid, unless order shall be made to the contrar}' by such High Court : Provided also, that the judge of the High Court of Justice or of the county court, or the chairman of the civil bill court, if either party so require, may hear any such application in his private room : Provided also, that any such bank, corporation, company, public body, or society as aforesaid, shall, in the matter of any such application for the purposes of costs or otherwise, be treated as a stakeliolder only. 19. Nothing in this Act contained shall interfere -nHth or alfect any settlement or agreement for a settlement made or to be made, whether 102 THE LAW OF MASTER AND SERVANT. before or after marriage, resiiecting the property of any married woman, or sliall interfere with or remler inoperative any restriction against anticipation at present attached or to be hereafter attached to the enjoy- ment of any property or income by a woman under any settlement, agreement for a settlement, will, or other instrument ; but no restriction against antici]ialion contained in any settlement or agreement for a settle- ment of a woman's own property to l)e made or entered into by herself shall have any validity against debts contracted by her liefore marriage, and no settlement or agreement for a settlement sliall have any greater force or validity against creditors of such woman than a like settlement or agreement for a settlement made or entered into by a man would have against his creditors. 20. Where in England the husband of any woman ha\-ing separate property l)ecomes chargeable to any union or parish, the justices having jurisdiction in such union or parish may, in petty sessions assembled, upon application of the guardians of the poor, issue a summons against the wife, and make and enforce such order against her for the maintenance of her husband out of such separate property as by the thii-ty-thii'd section of the Poor Law Amendment Act, 1868, they may now make and enforce against a husband for the maintenance of his wife if she becomes chargeable to any union or parish. 21. A married woman having separate property shall be subject to all such liability for the maintenance of her children and grandchildren as the husband is now by law subject to for [the maintenance of her children and grandchildren : Provided always, that nothing in this Act shall relieve her husband from any liability imposed upon liim by law to maintain her children or grandchihlren. 22. The Married Women's Property Act, 1870, and the Married Women's Property Act, 1870, Amendment Act, 1874, are hereby re- pealed : Provided that such repeal shall not affect any act done or right ac(piired while either of such Acts was in force, or any right or liability of any husband or wife, married before the conmiencement of tliis Act, to sue or ]>e sued under the provisions of the said repealed Acts or either of tliem, for or in respect of any debt, contract, wrong, or other matter or thing whatsoever, for or in respect of which any such right or liability shall have accrued to or against such husl>and or wife before the commencement of this Act. 23. For the purposes of this Act the legal personal. [representative of any married woman shall in respect of her separate estate liave the same rights and liabilities and be subject to the same jurisdiction as she would be if she were living. 24. The word " contract" in tliis Act shall include tlie acceptance of any trust, or of the otiice of executrix or administratrix, and the pro visions of this Act as to liabilities of married women shall extend to all liabilities by reason of any breach of trustor devastavit committed by any married wonum being a trustee or executrix or administratri.x either MARRIED WOMEN. 103 Ijclbro or after her marriaf^n', and her luisband shall nnt he subject to such liabilities unless he has acted or intermeddled in the ti-ust or administration. The word " property " in 'this Act includes a thing in action. If a woman who is a party to a contract of service marries, the marriage will not dissolve the contract, and is no excuse for her leaving the service (o). (o) Burn's Justice, Y., 222, 30th Chitty's General Practice, 3rd ed., od. ; r.. V. Tardchigg (17.53),' Sayer, 77« ; Fitzherbert, 168, N. 100 ; S. C. Burr. Settl. Cases, 322 ; CHAPTER VII. LUNATICS. A CONTRACT of hiring and service entered into by a lunatic is binding if the fact of insanity be not known to the person contracting with the lunatic, if the contract have been executed in whole or in part, and if tln^ parties cannot be restored to their original position. Some of the older authorities state that the acts of a lunatic are wholly void (a). But modern cases, and espe- cially Moltun V. Camrovx (b), seem to have laid down the doctrine stated above. A lunatic may be bound by contracts for necessaries, in- cluding services suitable to his rank and station (c). (a) See Holt, C. J., in rhomsun v. Leech, (9 Will. III.), 3 Salk. 301 ; see iilso Garth. 483, and ca.ses cited in Mo! tan v. Cnmroii.y. (b) (1848), 2 E.x. 487 ; 12 Jnr. 800 ; 18 L. J. ]ix. 68 ; 4 Ex. 17 ; 18 L. J. Ex. 356. See also Bra- van V. McDonnell (1854). 9 Ex. 309 ; 23 L. J. Ex. 94 ; 2 C. L. R. 474 ; JInssard v. Smith (1872), 6 Ir. Ya\. 429. As to contract made liy wifc of a lunatic, see Dreir v. Niinn (1879), L. H. 4 Q. B. D. 661 ; 48 E. J. 591 ; 40 E. T. N. S. 671 ; 27 W. ]!. 810. (Defendant authorised liis wife to deal with tlic plaintiff and ])Iedf;c }iis credit ; defendant sub.se(|Uently he- Ciiine in.sane ; lield liable for floods ordered by her during his insanitj'. the jilaintilf not ha\ing had notice of the defendant's insanity), liichard- son V. Dubois (Um), E. K. 5 Q. B. 51 ; 39 E. J. Q. H. 69 ; 21 L. T. 635 ; 18 W. R. 62 ; 10 B. & S. 830. (Action against lunatic for necessary re}iairs done to his house at the reijuest of his Avife ; plaintilf knew of defendant's lunacy ; his wife received a sufficient allowance to provide all necessaries ; no cause of action.) ((•) Barter v. Karl of Portsmouth (1826), 5 B. ii^ C. 170 (tradesman su])|>lying a lunatic with carriages suitable tn his station) ; and see also Jiroiniv. Jodrrll (1S27), 3 0. k P. 30. As to contracts with drunken person.s, Malthcvs V. Barter (1873), E. R. 8 r.x. 132. CHAPTER VIII. PARTNERS. A PARTNER has, in the absence of any stipulation to the contrary in the articles of partnership, implied authority to hire servants for the purposes of the partnership (a). One partner would have power to discharge a servant, though, not of course, against the will of his co-partners (6). Joint Stock Companies. By Schedule A. (55), the business of a company under the Companies Act, 1802, shall be managed by the directors. They may exercise all such powers of the company, as are not required by the Act or Articles of Association to be exercised by the company or by general meeting, and may do all acts (including the hiring of servants) reasonably necessary for the business of the company. (a) Beckham v. Dralr (1841), 9 M. v. JriUiavis(18BB), 1 Cr. k ^l. 345, h few. 79. A dormant partner held was held that one of two partners, joint liable on a contract not signed by tenants of a hoiise where their busi- him, liy which the plaintiff was hired ii ess was carried on, had a T\g,ht to for seven years, in /u V. Xrrc7i!. (18"21), anthorise a weekly tenant to remain •3 Stark. 7*^, it was held that a servant in the house, though the other part- in the emjdoyment of a firm is the ner had given him a week's notice to servant of each of the partners. leave the service of the firm, and that {b) In Dixon on Partnership, p. it would be lawful for the servant to ]3ii, tlie law is thus stated : "As a remain in conscfjuence of such autho- ]iartner may hire servants, so he may rity. If a servant is injured by dismiss them if the other partners do reason of the negligence of one not forbid ; and even if they do for! lid partner within the scope of the it, it is conceived that, at least as partnership, the other will be liable against the servant, a valid dismissal also. Ashworth v. Sktny.-ix (1861), 30 .•uuld be effected." Lindley on Part- L. T. Q. R. 183. nership, vol. i. 296. In DonnJditni' CHAPTER IX. FORMATION OF THE CONTRACT. A CONTRACT of hiring and service to be completed mtliin a year need not be in uniting ; if not to be so completed, it must be in writing («). At Common Law a verbal promise for good consideration sufficed to create a contract of hiring and service; and no particular form of words was required (b). Indeed, it is possible and common to conclude contracts of hiring and service without expressing the whole of the terms orally ; some of the terms are implied. The parties must be at one ; the terms must be fixed ; there mnst, in short, be an agreement (r). The payment of "earnest" or "fastening money," for example, Avill often suffice. The Common Law, however, is qualified by the 4th section of the Statute of Frauds, which states that " no action shall be brought upon any agreement that is not to be performed within the space of one year from the making thereof unless the agreement upon which such action shall be (a) Brcston v. CoUycr (1827), 4 for the year to be £1-20 kc. If tlie Bing. 309 ; Chittyon Contracts, 11th terms licrein siiecifieil are in accor- ed. 70 ; 29 Car. 2, c. 3, s. 4. dance with your ideas, kindly confirm (b) Bceston v. Collycr, see note («). them l)y return, and 1 will then (c) Johnson v. Appleby (1874), 1.. prepare to enter on my duties at R. 9 C. P. 158 ; 43 L. J. C. P. 146 ; your warehouse on Monday morning 30 L. T. 261 ; 22 W. K. 51.0. The next." The defendants wrote : plaintiff proposed to enter the service "Yours of yesterday embodies the of defendant and wrote as follows : substance of our conversation and " Referring to my conversation with terms. If we can define some of you, I have now the pleasure to state the terms a little clearer, it might my willingness to enter the service of jireveiit mistakes ; but 1 think we are your firm for one year on trial on (piite agreed on all." Held that evi- the following terms, viz., a list of dencc of a custom to dismiss salesmen the merchants to be regularly callelfi7is (UC>r,), } II. 317; 2.^. W. K. .^01. Signing by & N. 81. biitli particK is not rcfjuisite. Mere (1) Cauihornev. Cordrci/(lSC>Z),1S initials are apparently sufficient: C. B. X. S. 406 ; 32 L. J. C. \\ 152. brnko on Contracts, p, 275. FOnMATIOX OK THH fOXTKArT. lU'J culars as to the kind of" employmcut and terms offered by him at S., and when B., having heard the form read over to him, signed an agreement headed " Free Labour Society," by wliich he stated that he liad accepted employment at S., and that he would not quit the service of his employer without just cause, it was held that the documents sufficiently referred to each other, and constituted a contract in writing signed by both parties (o). The signature may be on one part of the memorandum or agreement; the terms of the employment may be on another ; and the signature need not have been put to attest or verify the contract. A draft agreement between plaintiffs and a company was prepared ; a minute of a resolution to engross, sign, seal, and execute the agree- ment was entered in the company's books ; and at the next board meeting the chairman signed the minute thus : " Read and confirmed ; Claud Hamilton." Held that, though the signature might have been intended merely to be in compli- ance with the requirements of the Companies Act, 1862, s. 67, it satisfied the Statute of Frauds (p). The fact that an agreement otherwise within the statute has been partially performed, does not take it out of the statute (q). But when work has been done — whether it was (o) Cranr. v. Fowcll (1868), L. 11. (1857), 6 H. of L. 238 ; 27 L. J. Ch. 4 C. P. 123. A clause in articles of 46 ; Johnson v. A])jjle/ji/, see note (c). association that Mr. W. E. "shall (cj) Boydell \. iJrurnniond (1809), be solicitor of the company, kc," 11 East, 142. The equitable doctrine does not create a contract between of part performance is applicable only the plaintiff and the company. It to sale of land, not to contracts of is res inter alios acta, of which the service. Britain v. Ilossitcr (1879), former cannot take advantage. Etey 48 L. J. Q. B. 362 ; 40 L. T. 240 ; 27 V. Positirc Government Sceuriti/ Life W. K. 482. (Agreement verbally on Assurance Co. (1876), L. 11. 1 Ex. Saturday to serve for a year ; eni- D. 20, and 88 ; 45 L. J. Ex. 58, and ploynu-nt to commence next Monday ; 451 ; 33 L. T. 743 ; 34 L. T. 190 ; plaintilf served for part of ayearand 24 W. K. 252 and 338. As to then was dismissed ; held that the evidence of appointment of officer, contract was within sec. 4 of the Browningv. Great Central Mining Co. Statute of Frauds, and that the case (1860), 5 H. & N. 856 ; 29 L. J. Ex. was not taken out of the Statute by 399. part performance.) Here all wages (y) Jones v. Victoria Graving Dock due up to dismissal were paid. See Co. (1S77), L. R. 2 Q. B. D. 314 ; 46 Wood's Master and Servant, pp. 357 L. J. Q. B. 219 ; 36 L. T. 347 ; 25 —374. W. R. 501 ; Ridgway v. TVharton 110 THE LAW OF MASTER AND SERVANT. done within a year or not — and an action is brought on an express or implied agi'eement to pay for the worth of the work actually done, the absence of writing is no defence to the action (r). The statute was intended to exclude the mistakes and con- flicts of evidence which arise when there is no complete written record of a contract. The object of the statute would be defeated, the evils which it was designed to avert would be introduced, if it were permissible to vary, add to or subtract from the wTitten words by verbal testimony, and if one of the parties might say, "This was qualified by an arrangement made at the time ; " or " our meaning was not completely expressed by the written agreement, and was so and so." In Giraiid V. Richmond{.s), the written agreement between a master and his clerk stated that the latter should receive a certain annual salary, increasing each year ; the clerk sought to show that it was agreed that the salary should be paid quarterly ; the Court would not receive evidence with this view, nor would it infer such an agreement from the fact that the salary had been paid quarterly. The consideration for the promise must be stated ; if the agreement merely mentions the promise on the part of one person, without stating the consideration — e.g., if it merely says, " A. B. hereby promises to be groom to C. B. for two years," it will not be enforced against A. B. (/). The above principles must be taken with some reserva- tions. Men rarely commit to writing all that they intend and agi'ee to ; they do not write out what may be taken for granted; cela va sans dire holds as to many things which good sense would imply. The law recognises this fact, and if a jury are of opinion that a contract was made with reference to a particular custom, it will be regarded as part of the contract. Whether such a custom exists, and whether the contract was intended to embody it, is a question of fact for the jury (u). ('/•) Cliitty on Contracts, lltli Ed., E. 693. Sec cliap. XII. 57. in) Ahholt v. Bates (1874), 43 L. (s) (]84fj), 2C. H. 83r>. .I-'O. P. 150, as to "necessaries" in {t) Sykcs V. JJixon (1839), 9 A. k articles ol' appreuticesliip, R. v. FORMATION OF THE CONTRACT. Ill A term in the contract may be the rules of the establish- ment or workshop in which a workman is engaged (.r), Knowledge of such rules by the servant must be shown ; e.g., by proving that the rules were stuck up in a prominent place in the workshop, and that the workman could read. It will be seen hereafter that a contract of hiring and service is lyriind facie a contract for a year [y). Contracts of Seamen. Agreements with seamen have been the subject of the special attention of the Legislature. By section 149 of the Merchant Shipping Act of 1854, they must be in writing, except in case of ships of less than eighty tons register tonnage, exclusively employed in the coasting trade of the United Kingdom. The Merchant Shipping Acts contain many regidations with respect to the form of and particulars in agreements with seamen. They are mainly comprised in sections 14G — 167 of the Merchant Shipping Act of 1854 (17 & 18 Vict, c. 104), sections 7 and 8 of Act of 1873 (36 & 37 Vict., c 85), and section 26, subsection 5 of Act of 1876 (39 & 40 Vict., c. 80). These agreements are exempt from the Stamp Act (Merchant Shipping Act, 1854, section 9, and 33 & 34 Vict., c. 97. s. 3). Under the 2 Geo. II., c. 36, which required all agreements for wages between captains and their crews to be in writing, it was decided in WJdte v. Wilson (z), that a con- tract which did not mention, besides the money wages, the fact that a sailor was to get "the average price of a negro slave " was void. It seems probable that an agreement not in writing would now be binding (a). Stoke iqmb Trent (1843), o Q. V,. 303, (//) Chapter XIV. as to custom as to holidays ; Grantv. (z) (1800), 2 B. & P. 116. See also Maddox (1846), 15 M. & W. 737 as Elsworth v. Wollmorc (1803), 5 Esp. to usage as to payment in theatrical 84. profession. (a) Pollock and Bruce's Edition of {x) Carus v. Eastwood (1875), 32 Maude and Pollock ou Shipping, L. T. 855. vol. I., 196. 112 THE LAW OF MASTEU AXD SERVANT. Contracts of Apprenticeship. The 5 Eliz. c. 4, s. 25, required that the binding of apprentices should be by indenture. As has been stated in Chapter III., where there was an expressed or implied agreement to teach a person a trade, the Courts held that a defective contract of apprenticeship — that is, a contract not sufficient to support a settlement — existed. The 54 Geo. III., c. 96, s. 2, declares that " it shall and may- be lawful for any person to take or retain or become an apprentice, though not according to the provisions of the said Act ; and that indentures, deeds, and agreements in writing entered into for that purpose, which would be otherwise valid and effectual, shall be valid and effectual in law, the repeal of so much of the said Act as is herein last above recited notwithstanding." The indenture must be executed by the infant (b). As contracts of apprenticeship are for more than a year, they must be in writing. For the reasons stated in Chapter XL, with respect to stamps, the consideration must be stated correctly in the indenture. The Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 142, prescribes regulations as to the indentures of apprentices to the sea. By section 143, they are exempted from stamp duties (c). (6) R V. Kcynshavi (1804), 5 Phillips v. Jones (1834), 1 A. & E. East, 309. As torecoveiingcoiiiiiL'n- 333; Jlcrrrison v. James [1362), 7 U. satioii for boy's labour or for board & N. 804 ; 31 L. J. Ex. '248. during probation, Kcenc v. Parso^is (c) Part II. L'hap. IX. For prece- (1819), 2 Stark. 506; Wilkins v. deiitsof indentures, see I. Crabb. 290, Wells (1825), 2 C. k P. 231 ; Earratt 302, 305, 306. V. Burghart (1828), 3 C. & P. 381 ; CHAPTER X. CORPORATIONS. Contracts of hiring and service by corporations must be under seal, if the contracts be of an unusual or important character (a). Contracts of hiring and service, in the case of trading companies, need not be under seal. "The seal is required," as Rolfe, B., explains in Mayor of Liullotv V. Charlton (6), "as authenticating the concurrence of the whole body corporate." The principle that a seal must be used in contracts is stated in unqualified terms in some ancient authorities (c) ; but it has been subjected to important exceptions, the exact limits of which are not easily determined. The following exceptions, however, seem to be established : (1.) Contracts of trading companies entered into for the purposes for which they are established need not be under seal. This exception is now clearly recognised (<^/) ; and it would seem that the old rule is obsolete so far as trading companies are concerned. Actions by a gas company for the supply of gas {e), by a colliery company (/) against an engineer who had agreed to erect pumping engines, by a (a) See generally as to contracts of fol. 12. corporations, Bacon's Abridg. "Cor- {d) Rolfe, B., in Mayor of Ludlov) porations," E. 3, and Viner's Abridg. v. Charlton, see note {h). "Corporations," K. The rule held (e) Beverley v. The Lincoln Gas good in equity as well as at law ; Co. (1837), 6 A. & E. 829. JFimic V. Bamjiton (1747), 3 Atk. ( /) South of Ireland Colliery Co. 473. V. iVaddlc (18C8), L. R. 3 C. P. 463 ; (b) (1840), 6 M. & AV. 815. L. R. 4 C. P. 617. (c) For example, 13 Hen. VIII., 114 THE LAW OF MASTER AND REUVAXT. tradinlaintiff be appointed medi- cal oflicei' for three months ; plaintiff entered upon his duties, and per- fornu'd tliom for three months ; con- tract not under seal : no action lay.) Some of the reasons given, t'.'/., the reasons given by Martin, B., seem not sustainable. Austin v. lirlhnal f/nrn I'uion (1874), L. K. !» C. P. 91 ; 43 E. J. C. 1'. 100; 29 L. T. 807 ; 22 W. K. 4(i6. (Appoint- ment of a clerk to woikhouse ; no action lay, becnnse appointment not under seal.) CViKroHATloNS. 117 they cannot appoint a solicitor, or conclude any other con- tract of a special and unusual character, without employing the corporate seal (a). Local Boards and Urban Authorities. The 38 & 39 Vict. c. o5, s. 174, enacts that with respect to contracts made by an urban authority under this Act, the following regulations should be observed, viz. : — " (1.) Every contract made by an urban authority whereof the value or amount exceeds £50 shall be in writing and sealed with the common seal of such authority : (2.) Every such contract shall specify the work materials matters or things to be furnished had or done, the price to be paid, and the time or times within which the contract is to be performed, and shall specify some pecuniary penalty to be paid, in case the terms of the contract are not duly performed : (3.) Before con- tracting for the execution of any works under the pro- visions of this Act, an urban authority shall obtain from their surveyor an estimate in writing," &c., as to the pro- bable expenses and annual repairs : (4.) " Before any con- (a) Mayor of Ludlow v. Charlton (1840),6M. &W. 815 ; Arnold v. Mnyor of Poole (1842), 4 M. & G. 860. (An at- torney could not succeed in an action for work and labour in opposing cer- tain bills in parliament in pursuance of instructions from mayor and mem- bers of town council, the contract not being under seal.) But see Favicll V. E. ('. E. Co. (1848), 2 Ex. 344 ; 17 L. J. Ex. 223 ; B. v. Mayor of' Stam- ford (1844), (J Q. B. 433. ' (Reso- lution to increase town clerk's salary in lieu of compensation ; such a con- tract mu.st be under seal.) M. v. Lichfirld (1843), 4 Q. R. 893. (A resolution of the town council suffi- cient authority to warrant payment of costs to attoMiiy.) Shiilh v. Carta-yiifhl. (1851), 6 Ex. 927 ; 20 L. J. Ex. 4ul. (Plaintiff sued as coal meter of King's Lynn. His appointment not under seal, but evidence of it by entry in books of the corporation ; held that, not being a servant but an officer of the corporation, he could not be ap- pointed without deed.) See, how- ever, Thames Haven Co. v. Hall (1843), 5 M. & G. 274, and R. x. Jus- tires of Cumherland (lSi7), 17 L. J. Q. P>. 102 ; Mayor of Kidderminster V. Hardwick (1873), L. K. 9 Ex. 13. (Contract by jdaintifls letting certain tolls, not under seal ; nut binding on defendant, the highest bidder.) Cle- menshaio v. Corporation of Dublin (1875), 10 Irish C. L. 1. (Defendauts emploj'cd plaintiff to promote a bill in j)ailiament to etialile defendants to purchase gas work and become vendois of gas ; contract not under seal ; not binding.) This last case nudnly turned on a question of ultra vires. 118 THE LAW OF MASTER AM) SERVANT. tract of the value or amount of i'lOO or upwards is entered into by an urban authority ten days' public notice at thB least shall be given, expressing the nature and purpose thereof and inviting tenders for the execution of the same ; and such authority shall require and take sufficient secu- rity for the due performance of the same : (5.) Every con- tract entered into by an urbiln authority in conformity with the provisions of this section, and duly executed by the other parties thereto, shall be binding on the authority by Avhoni tlio same is executed, and their successors and on all other parties thereto and their executors administrators successors or assigns to all intents and purposes," »S:c. So much of this section as relates to sealing is not directory only ; it is imperative. Hence, when a local board — an urban authority under the Public Health Act of lS-i8 and the Public Health Act of 1875 — verbally directed their surveyor to employ the plaintiff, an architect, to prepare plans for new offices, it was held by the Court of Appeal, that the contract could not be enforced, owing to non- compliance with the statutory re(|uircments ; although the jury found that the local board had authorised their surveyor to procure the plans, and ratified his acts, that the new offices were necessar_y for the purposes of the defendants, and that the plaintiff's plans were necessary for the erection of the buildings (b). Contracts hy Companies under (he Ar(s of 1862 (md 1867. The 37th section of the latter Act runs thus : " Contracts on behalf of any company under the principal Act may be made as follows : (that is to say) ; ( I. ) Any contract which if made between private persons would be by law required to be in writing, and if made according to English law to be under seal, may be made on behalf of the company in writing (6) Hunt V. ]\'ii,ililril(})i Lnml Yonnr) V. Corporation nf Lramington Board (1878), L. li. 1 C. 1'. D. 48 ; (1882), 8 Q. B. D. 57i>. CORPORATIONS. 119 under the commou seal of the company, and such contract may be in the same manner varied or discharged. (2.) Any contract which if made betAveen private persons would be by law required to be in writing, and signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under the express or implied authority of the company, and such contract may in the same manner be varied or discharged. (3.) Any con- tract which if made between private persons would by law be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any person acting under the express or implied authority of the company, and such contract may in the same way be varied or discharged. And all contracts made according to the provisions herein contained shall be effectual in law, and shall be binding upon the company, and their successors, and all other parties thereto, their heirs, executors, or adminis- trators, as the case may be." Companies under the Companies Clauses Act. The 8 & Vict., c. 10, s. 97, enacts as follows :— " With respect to any contract which, if made between private persons, w^ould be by law required to be in wa-iting, and under seal, such committee (see section 95) or the directors, may make such contract on behalf of the company in writing, and under the common seal of the company, and in the same manner may vary or discharge the same : With respect to any contract which, if made between private persons, would be by law required to be in waiting, and signed by the parties to be charged therewith, then such committee or the directors may make such contract on behalf of the company in writing, signed by such committee, or any two of them, or any two of the directors, and in the same manner ma}' vary or discharge the same : ^^'ith respect 120 TBi: LAW OF MASTER AXD SERVANT. to any contract which, if made between private persons, would by law be valid although made by parol only, and not reduced into writing, such committee or the directors may make such contract on behalf of the company by parol only, without writing, and in the same manner nuiy vary or discharge the same" (c). (c) See Bill y. Darcnth rnVnj suing for salary which had not been Railimy Co. (1856), 1 H. & N. determined at a general meeting in 305 ; 26 L. J. Ex. Si, as to secretary accordance with the 91st section. CHAPTER XI. STAMPS. Agreements for tlio liire of labourers, artificers, " manufacturers," menial servants, and sailors coasting from port to port in the United Kingdom do not require to he stamped (a). Agreements, as a rule, require to he stamped ; and no document, letter, or contract, can be admitted in evidence (ffl) Agreoinciits with seamen mado in forms sanctionetl by tlie l^ioard of Trade are also exempt from stamp duty, 17 & 18 Vict. c. 104, ss. 9. 149. E. V. St. PimVs, Bedfoid (1795), 6 T. E. 452. (An apprentice not within the exemption.) Dakm v. JFatson (1841), 2 Cv. k Dix, 224. (Quoted in Tilsley on the Stamp Acts, p. 45 ; a clerk not within exception.) JVilson V. Zulutta (1849), 14 i}. 15. 405 ; 19 L. J. Q. B. 49. (A stoker or fireman on a steamship, who was bound to obey tlie orders of the engineers, held to be a labourer or artificer.) Jl. V. Wortldi (1851), 21 L. .1. U. C. 44 ; 15 Jur. hs7 ; 2 Den. L\ ('. 33:3. (Man employed to look after glebe land, his wife undertaking the care of the dairy and poultry ; a labourer. ) Bishop V. Letts (1858), 1 F. & F. 401. (Overseer in a printing office an arti- ficer.) I am not aware i f any decision explaining what is meant by " liiie of any manufacturer," nor do I know what it means. There have been many discussions as to whether a contraet was for the sale of goods or for work or labour. This (luestion has already been considered with reference to the Statute of Frauds. Here maj' be also cited. Pinner v. Arnold (1835\ 2 ('. I\l. A: IJ. 613. (Agreement between ])laintiff, a ])ressniaker, and defendant, copjierplate printers, to make an eagle press ; the agreement within the third exemption.) Hughes V. Budd{\8A0), 8 Dowl. 478. (Agi-ee- nient by jilaintiff to (piai n- a sufficient ([uaiitity of .--tone at ('. to complete a dry wall : imt within the exemption, and ]ilaiiititf unable to recover, though the defendant had had the benefit of the work.) Chanter v. Dickenson (1843), 5M. & G. 253. (Memorandum as follows: "Send me a licence to use two of ( 'banter & Co. 's patent i'urnaces, to be supplied to a singe ])late and cloth boiler, for which I agree to pay Mr. Chanter or his order as ag. , £25 as a patent right, and which is to include iron-works, fire-bricks, and labour ; engineers' or furnace-builders' time to suj)erintcnd or fix the above order, to be paid 6.s. per day, &c. " ; not within the exemption.) See also /'oi«/ iSEUVANT. unless it be stamped. The schedule to the Stamp Act of LS70, 33 & 34 Vict, c. 97, exempts: — (1.) Agreement or memorauduni the matter whereof is not of the value of £5. (2.) Agreement or memorandum for the hire of any labourer, artificer, manufacturer, or menial servant. (3.) Agreement, letter, or memorandum made for or relating to the sale of au}^ goods, -wares, or merchandise. (4.) Agreement or memo- randum made between the masters and mariners of any ship or vessel for wages on any voyage coastwise from port to port in the United Kingdom. These exceptions are taken from the Stamp Act, the 55 Geo. III., c. 184, and the decisions upon that statute illus- trate the later Act. The chief of them are stated below. The Stamp Act (33 & 34 Vict. c. 97, s. 39) of 1870 states that — Every writing relatiiiL; to the service or tuition of any appren- tice (/*}, clerk, or servant placed witli any master to learn any profession, (/') As to -vvliat iU'C contracts of a])prenticesliip, see cliap. III. The followiur; arc some of the cliicf deci- sions with resjtcct to duties ]iaYable on indentures of apprenticeship : Ji. V. Lcuih (1828), 8 B. & 0. 24 7. (An indenture to two nia.sters to serve them consecutively in two di.stinct trades for })eriods of four and three Years, reipiires only one stani]). ) J!. V. L/C (]8:n), 2 H. i]irentice need not be set out. ) J{. V. Church Jlulme (]Si\), 5 B. & Ad. 1029 b. (An iudentine nnist W stam])ed with the nd-vdlorcvt duty within the time prescribed by 8 Ann, c. 9, ss. 36, .'57, and 88.) Morris v. Cox (1841), 2 M. i: (1. 6.09; 5 Jur. 367. (An assignment with new terms inserted does not reipiire new stamp.) Co.NsiiiKit.vnoN — Valid.— 7l. v. Waltoji (1790), 3 T. K. .515. (Aj)- prentice to provide himself meat, drink &c. ; the master covenanted to makeweekly jmymentsto apjirentice ; the justices not having found tiiat the jmyments were not eipiivalcnt, no additional duty payable, j /,'. v. St. I'rtro.r (1791), 4 T. K. 196. (Pay- nunt to master's mother not men- tiimed in indenture.) 1!. y. Lcighton (1792), 4 T. 1!. 732. (No duty pay- able when meat, drink, lodging, clothes and washing ]irovided for ap- prentice .and no money given to master.) Also R. v. I'urfsia (1776), Bur. S. C. 834 ; /.'. v. Wantrnjc (1801), 1 East, 601. (No duty when master stipulates for ])art of apprentice's wages, all of which belong to the master in the alwence of agreement.) n. V. Jylishiiri/(lS3-2), 3 11 . (18G9), 18 W. R. seal. 180 In Dun.ston v. Ivipirinl Gas (c) (187")) L. 11. 10 Ex. 162 ; 44 L. Light Co. (1831), 3 B. & Ad. 125, it .T. Ex. 99. ■wa-s held that directors of a company, {d) Ililrhcoch v. Cokcr (1837), 6 A. not being servants, but managers or & E. 438. THE COXSIDKKATION. 127 deration cannot consist of byg'onc transactions, unless any- thing was done at the request of the person making the promise (c). A promise made in respect of a past matter may be induced by gratitude for what has been done ; the trans- action is not the less, in a legal point of view, purely voluntary. If the contract be within the Statute of Frauds, the con- sideration must be stated in writing (ce). In many contracts of service the consideration is not ex- pressed. The parties have in their minds certain usages. They do not state that which they assume need not be stated, and they are content to take for granted many of the terms of their agreement. Questions of difficulty frequently arise as to whether there exists a contract the consideration of which is implied or may be fairly inferred, or whether there is a mere promise which is not binding owing to tlie absence of consideration. In other words, is there mutuality ? A., for instance, agrees to serve B. for seven years. Does B. thereby by implication agree to retain A. in his service for the same period ? The current of the authorities is, as will be seen from Appendix A., far from uniform ( /'), The Courts will not allow an action where A. is not bound to serve, and B. to retain him in service. No doubt, if A. enter upon his duties, and perform certain work, the law will imply a promise by B. to pay, and A. will be entitled to recover (g). But when B. seeks to compel A. to fulfil an agreement to work, it must be shown that there is an obligation on the part of B. to retain him in service. Thus, in Dunn v. Sayles (h), the Court refused to imply a covenant to retain the plaintiff in the service of (e) Leake on Contracts, 19, and and anotlier makes a promise to sup- authorities there cited. port it. See as to want of mutualitj'-, (cf) Wain V. irarHcrs (1804), Mmior of Kiddcrmitisterv. Hardivid: 5 East 10. (18'73), L. K. 9 Ex. 13 ; Arnold v. (/ ) Tliere is much ambiguity as to Mayor of Poole (1842), 4 M. & G. 896. the meaning of mutuality : Cromp- See Appendix A, for chief decisions ton, i., in Whittle v. FranJcland on this ([uestion. (1862), 2 B. &, S. 55. Here it is (g) See Elsce v. Gaticard (1/93), taken in the sense of mutual pro- 5 T. R. 143. mises ; one party makes one promise, {h) (1844), 5 Q. B. 685. 128 TUF. l.AW OK MASTER AXli SERVAXT. the defendant for five years, when it was agreed by deed that the plaintiff's son should continue with the defendant as an assistant surgeon dentist for five years, and that the de- fendant should pay weekly wages. This decision has been much criticised ; and the tendency in recent cases has been to imply a promise on the part of the master to retain " when- ever there is something not expressed which it is clear to all men of ordinary intelligence and knowledge of business must either have been latent in, or palpably present to, the minds of both parties when the contract was made" (i). Thus, when A. agreed to serve B. for seven years on certain terms, and B. to pay his wages so long as he was so employed, it was held that B. was bound to employ A. for seven years (/.). While the Courts will often presume a promise to hire or retain in service, though it be not actually expressed, they will sometimes imply a right to terminate a contract of hiring or service, though no such right be expressed. Suppose that it is agreed between A. and B, that for seven years, or so long as A. shall continue to carry on business in Liverpool, A. shall be the sole agent there for the sale of B.'s coals, and that B. shall not employ any other agent there. Suppose further, that it is a term of the agreement that if A. does not sell a certain amount a year, or if B. cannot supply a certain amount a year, either party may determine -the agree- ment; and that B. sells the colliery at the end of four years. Has B. been guilty of a breach of contract ? Such were the chief facts in Rhodes v. Forwood (l). The House of Lords, reversing the decision of the Exchequer Chamber and affirm- ing that of the Court of Exchequer, held that no action Avould lie against B. for breach of contract. The House of Lords thought that there was no implied obligation on the part of B. to carry on his business and not to sell it for seven years. It would be different if the agreement were in (i) Brett, J., in Thorn v. Mai/or of {k') Ilartlyv. Cummings. See Ap- Lmdwi (1875), L. K. 10 Ex. 123 ; 44 iK-nUix. L. J. Ex. 70. 'J) (1876), L. K. 1 Ap. 256. THE CONSIDERATION. 129 effect, that the business should be carried on in order that the profits might be remuneration for advantages ah-eady received. In such circumstances, it would be obviously unfair that one party should be able to cast off all obliga- tions to the detriment of the other. Such was the case in Mclntyi'e\. Belcher {ht). The plaintiff, a surgeon, sold his business to the defendant. It was agreed that he should in- troduce the defendant to his patients, and should receive for the first four years one fourth part of the gross earnings. In such a state of facts it was held that there was an implied covenant on the part of the defendant to continue the prac- tice {m). (to) Tlie following are the cliief de- cisions : Burton v. Great Northcni By. Co. (1854), 9 Ex. 507. (By agreement on 1st October, 1851, plaintiff luulcrtook to provide all waggons, horses, kc, necessary for the cartage of all grain, &:c., between Hatfield and Ware, that might be pre- sented to him, at 5s. a ton. " It is mutnally agreed that this agreement shall continne in force for the period of twelve months from the date hereof." The company gave notice that the arrangement would cease after 1st April, 1852. Held that the only contract by defendants was to pay the stipulated i)rice of such goods as might be })reseiited.) London, Lcitli, and Glasgow Shipping Co. v. Ferguson (13th Nov., 1850), 13 D. 51 ; 23 Jur. 4. (An agent paid by the company by a commission on profits not presumed to be engaged from year to year ; tlie company entitled to discontinue their trade without giving any previous notice or any compensation for the loss of his situation.) Mclntyrc v. Belcher (1863), U C. B. N. S. 651; 32 L. J. C. v. 254. (Agreement for the sale of goodwill of practice of a surgeon ; the purdiaser to have de- livered up to him the hou.se, and to have sold to him horse, drugs, kc, for £17 5.s\ ; the vendors to pa)' rent and taxes up to a certain date : the purchaser to pay on condition of the premises, in respect of each of the four following years, if he should be living, at end of each respective year, one- fourth part of the receipts and earn- ings. Held an im])lied covenant by purchaser to do nothing to prevent the receipt of earnings. " If I grant a man all the apjdes growing ujion a certain tree, and I cut down the tree, I am guilty of a breach." AVilles, ,T.) Stirling v. ifaitlan/l (18(54), 5 ]'.. &S. 840. (An insurance company covenanted for valuable con- sideration with C. D., to appoint him their agent in Glasgow, together with A. B., and if A. B. .should be dis- placed from the agency, to pay C. D. a certain sum. The company, liaving transferred their business to another comjiany, were wound up and dis- solved. The sole remuneration was by commission. Held that the plaintiff was "displaced" within the meaning of the contract. " I look on the law to l>e that, if a party enters into an arrangement wliich can only take effect by the continuance of certain existing state of circum- stances, there is an implied engage- ment on his part that he .shall do nothing of his own motion to put an end to that state of circumstances, under wliicli alone the arrangement can be operative." Cockburn, C. .1.) Ex parte Mnclurc (1870), L. K. 5 Ch. Ap. 737 ; 39 L. J. Ch. 685. (A. en- tenul into an agreement with an in- surance com[)any to act as their agent for live years, and to transact no other insurance business without the con- 130 THE LAW OF MASTER AXn SKKVAXT. A similai' question arises as to whether there is an obliga- tion on the part of the master to find work for his servant. Where the contract of hiring merely contains an undertaking to pay stipulated wages in proportion to the work done, there is no implied obligation on the master's part to find work ; though the disposition is to construe contracts of doubtful significance as to this into an agreement on the master's part to enable the servant to earn regular wages (p). On this subject the words of Cockburn, C.J., in Churchwcuxl v. Queen (q), are of value. "Where the act to be done by the party binding himself can only be done upon something of a corresponding character being done by the opposite party, you would there imply a corresponding obligation to do the tilings necessary for the completion of the contract." So if a man engages to work, and goes to great expense, and he is only to be paid by the measure of the work he has performed, the contract pre-supposes and implies an obligation to supply the work. A review of the authorities as to this point discloses no definite rule. Each case must be decided on its merits. It is the duty of the Court to decide by reference to the words of the documents, and of a jury by looking at all the facts, or tbc practices of mankind, to say whether it was intended that work should be found, or a servant or labourer should bo retained. When a servant is engaged in order to perform duties in regard to a certain definite business rather than to Kent of tlie company, in consideration roinniission on all goods ordered, of wliich lie was to receive a fixed thronfjh them ; the comjiany was salary and 10 per cent, commission on wound up voluntarily before the the nett profits. Before the end of the end of the three years; Bacon, five years the company was wound nji. V.-C, held that D. and (K were Agent entitled to claim for salary, but entitled to compensation for com- not entitled to claim against the roni- mission for the unexpired jiortion of l)a7iy for loss of commission, inasmuch the three years. He distinguished as the contract h^ft the company I'ree the case I'rom Maclurca Case, on to determine the extent of their Imsi- the ground that there the servant ness. ) //) re relent Floor I'/ofh Co. had sti))ulated lor salary and coni- (1S72), 41 L. J. (Jh. 47G ; 2t3 L. T. mission.) N. S. 467. (Company engageil D. (;)) See Ajiiiendix. and G. as commercial travellers for (v) (ISGo), !.. K. 1 Q. V>. 195. three years ; they were paid by a THE CONSIDKUATION. 131 give his services in general, tlie dunition of the contract is naturally regulated by the duration of the thing itself. Ser- vants are for the business, and not the business for the servants. It -would be improbable in most cases that it was imderstood that a business was kept up merely or mainly to give employment to them. When a contract is one of agency rather than of hiring and service, the natural inference would seem to be that the employer is free to terminate the relation at any time, provided the employment be not coupled with an interest. Contracts of hiring and service will not be enforced if they are for illegal or immoral purposes. Most contracts of hiring and service and work and labour which have been pronounced void, on the ground that they are offensive to morality, have related to sexual morality. But the principle is not confined to cases of this sort ; the maxim ex turpi causd non oritur actio holds good gene- rally. The application of it to contracts of hiring and service and work and labour is simple, when the contract is on the face of it, or necessarily, immoral. Thus, in Poplett V. Stockdale (r), the plaintiff sued for the expense of printing an immoral book called " The Memoirs of Harriette Wilson," coQtaining the history of a celebrated prostitute ; and the Court refused to assist the plaintiff. " Every ser- vant, to the lowest, engaged in such a transaction, is pre- vented from receiving compensation." Equally clear are the cases in which statute law is broken. Thus, it has been held that a printer cannot recover the cost of printing a pamphlet upon the first and last leaves of which he had not, in compliance with the 39 Geo. III., c. 70, sec. 27, (r) (1825), E. & Moo. 337 ; 2 C. k It. v. Norfhirinc/Jicld (1831), 1 B. & r. 198 ; Forbes v. Johncs (1802), 4 Ad. 912 ; Bradshaw v. Hayward Esp. 97. Assumpsit Avill not lie to (1842), Car. & M. 591. recover the price of obscene prints. K 2 132 THE LAW OF MASTER AND SERVANT. printed liis name (.s). So, too, it was held that a person could not recover money advanced for tlie bringing out of Italian operas at a theatre, which he must have known was not licensed as required by 10 Geo. II.,c. 28, and 28 Geo. III. c. 30 (t). The chief difficulty arises when the object of the contract is not necessarily or manifestly immoral. A lessor, for example, sues for the rent of lodgings which he knows are to be used for the purposes of prostitution (u). A washerwoman washes and does up clothes for a woman known to be a pros- titute (.r). An owner of a brougham lets it to a prostitute to enable her to ply her calling (y). The cases in which facts such as these have been proved, have not been consistent ; but the true rule seems to be laid down by the Court of Exche- quer in Fearce v. Brooks (z), — an action by coachmakers for the hire of a brougham let to one who used it for immoral purposes — that the plaintiff cannot recover if an article were supplied with a knowledge that it was to be used for such a purpose. The application to cases of hiring and service is obvious. No one could recover for services which he knew were given in furtherance of an immoral object. It is impossible to enumerate here all the kinds of con- siderations which have been pronounced invalid as being •contrary to public policy. The views of the Courts as to this have varied from time to time. Some judges have claimed (.f) Bcjislcij V. Bignohl (1822), 5 U. (t) DcBegnis v. Armistcad (1833), A Aid. 335. Seealso J«e?iv. Rcscoux, 10 liiiig. 107. (28 Chas. II.), 2 Lev. 174. Contract {«) Girardy v. lUcJuirdson {1793), " to beat J. 8. out of a close." Cope 1 Esp. 13. V. Bou-lands (183G), 2 M. & W. 149. (x) Lloyd v. Johnson (1798), 1 B. {Unlicensed broker in London cannot & P. 340. recover coniniission.) IlarriiK/lon v. (?/) Pcarccv. Brooks (1866), L. R. Victoria Graving Dock Co. (1878), 1 Ex. 213. L. R. 3 Q. B. D."549 ; 47 L. J. Q. B. (;) See note ()/). See also Waxcgh v. 594. (Plaintiir, an ent^incer of rail- ;\/wm (1873), L. R. 8 Q. B. 202; 42 way company, .sued the defendants L. .1. (J. B. 57. The dictum of EUen- tipon a contract for commission in borou^'h, C. J., in Boirry v. Bcnnel consideration of his using liis in- (]8(JS), 1 Camp. 348, that it must be Iluence to induce the railway com- shown not oidy that the ]>luintiir had pany to accept tlie defendants' not ice of the defendant's immoral tender for the repair of shii)s ; no calling, but that he exjiected to be light of action, though the jury found p:iiil from the jirolits derived from it, lluxt this rcntract liad not "in fart cannot be regarded as correct, alfected the mind of the jilaintilf.) THE CONSIDERATION. l'}3 almost uncontrolled power to dccule what is puLlic policy. Others have declined to go beyond the lines of past decisions. . The doctrine has been acted upon with respect to marriage brokage bonds, contracts in restraint of trade, insurances by sailors of their wages, and sales of offices (a). The following are two of the most important classes bearing upon the subject of this book : — (1.) Contracts for sale of i)uhlic offices. At Common Law contracts for the sale of public offices are null and void {])). The Legislature has also declared that such transactions are invalid; see 12 Rich. IL, c. 2; 5 & 6 Edvv. VL, c. IG, and 49 Geo. IIL, c. 126. The Act of Edward VI. enumerates a large number of public offices, and imposes (sec. 1) a penalty for the buying and selling of them. Bargains, sales, promises, bonds, agreements relating to such transactions are declared void. The 49 Geo. III., c. 12G, ex- tended the provisions of 5 & 6 Edw. VI., to all offices in the gift of the Crown (sec. 1), and declared that persons buying, selling, receiving, or paying money or rewards for offices were guilty of misdemeanors. An agreement which stated that the defendant held the office of " customer " at Carlisle in trust for the plaintiff, and by which the defendant promised to appoint such deputy as the plaintiff should nominate, and to empower him to receive the salar}^ was held to be illegal at Common Law, and contrary to the two first- named statutes (c). So, too, where the defendant promised the plaintiff, who was master joiner at His Majest3''s dock -yard at Chatham, in case the defendant should succeed tlie plaintiff in his post, to allow him a certain annual share of the profits of the office. Lord Loughborough refused to recognise that there was a good consideration, and declared the agreement invalid {d). For similar reasons the Courts have declared («) For discussion of the subject, J. Ch. 868. see o]iinious of the judiies in Egcrton (c) Gayforth v. Fearon (1787), 1 H. V. Brownlow (1853), 4 H. of L. 1. B. 328. (fc) Coke, Litt. '234a ; Corporation (d) Parsons v. Thompson (1790), 1 of LivayoolY. JVr ig Id {1S59), 28 L. H. B. 322. 134 THE LAW OP MASTER AND SERVANT. that agi-ecments for a sale or an assignmcut of the profits or emohiments of such offices (e) are invahd. But in order to come within the principle, the offices must be really of a public character. In GrenfeRv. The Dean and Canons of Windsor (/), it was proved that the defendant, M., a Canon of Windsor, had granted his canonry and the profits of it to the plaintiff's to secure a sum of money. There was no cure of souls ; the only requirement was residence within the Castle, and attendance at chapel twenty-one days a year. Lord Langdale held the agreement to be valid; the duties not having been shoAvn to be in any way for the benefit of the public, or the maintenance of the dignity of the sovereign (cj). (2.) Coniracfs hi restraint of trade. Contracts which are in general restraint of trade are void. It will be seen from the note below, that the origin of the rule is uncertain, and that its exact limitation was not always understood (A). But since the decision in Mitchel v. (e) Pahnerv. Bate {1821), 2 T,. & B. 673. (Sale of profits of clerk of the iieace. ) (/) (1846), 2 Beav. 544. (y) See also Zow V. Low (1735), 3 P. W. 391 ; Blackford v. Preston (1799), 8 T. R. 89 ; Ilanincjton v. Duchastel (1781), 1 Bro. C. C. 124 ; iSw. 139 11.; Flar/.i/v. (hlhua{n90), 3 T. K. 631 ; Jraldo v. Marfiib (1825), 4 B. & C. 319 ; Thomson V. Thomson (1802), 7 Yes. 478 ; Card V. Hope (1824), 2 V,. & C. 6(il ; 4 D. & 1!. 164 (a Jwl of sale of ship in service of East India Com- pany) ; Jlichardsonv. Mcllisfu (1824), 2 Bing. 229 ; 6W;;r;- v. lleiUy (1829), 2 Sim. 560 (salary of assistant ])ar- liamentary counsel to Treasury not assignable); A', v. Charrctic {\%iSi), 13 Q. B. 447 ; Gracinc v. U'roughton (1855), 11 K.x. 146 ; 24 L. J. E.\. 265 ; CoTfioration of Livcrjiool v. ]l'ri(iht (1859), 28 L. J. Ch. 868. (For other cases under the above Acts, .see Cliitty's Statutes, Vol. iv., edited by Lely.) (ii) As to the difference of opinion, see Jollyfc v. Broad. (1621), Cro. Jac. 596. Mr. "arsons suggests (Contract 2, 748) tliat the law as to re- straint of trade grew out of the English law of appicnticesliip, by whii'li no ])erson ^•o\\\^\ exercise any regular trade or handicraft, except alter a long ajjprenticeshiji, and generall}' a formal admission to the pro])er guild. " If he had a trade, lie must continue in tliat trade, or liavo none. To rcliii([uisli it, llicrc- forc, was to throw himself out of em- ])loyment ; to fall as a burtlien upon the community ; to become a pauper." Tile principle was not, perliaps, defi- nitely laid down until 1711, when MUcitf.l V. Pitijnolils was decided ; but it is stated long before tlie ])ass- CONTRACTS IN RESTRAINT OF TRADE. 135 lieymlds (i), in the King's Bench, in 1711, tlic following principles licave been established : — (1.) That all contracts in general restraint of trade are void ; (2.) That particular or limited restraints, if for good consideration, are valid. " Frimd fade," to quote the language of the Court in Hilton V. Echershy (k), " 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 (his trade) on, according to his own discretion and choice. If the law has in any matter re- ofulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion." Hence the Courts have refused to give effect to agreements by which persons professed to surrender this right. (1.) The first requisite of valid agreements in any way in restraint of trade is that they must be partial as regards space. Even if limited in time, a contract unlimited as re- gards space will be void. Thus, a bond by which a person bound himself not to follow, or be employed in, the business of a coal merchant for nine months after he should have left his employment, was held bad (/). But the Courts will enforce an agreement to take an apprentice, servant, or clerk or traveller, on condition that he shall not solicit custom from the master's customers after or during his engagement, or set up the same trade in opposition to his employer in the immediate neighbourhood. (2.) The restraint or limitation must be reasonable. This is a question of law for the Court (m). The test will be whether the limit imposed is in excess of what is required iug of the 5tli of Elizabeth— the first exercising trades, except tliey were reported case bearing date 1415(2 free of the city. See Introduction. Hen. v., f 0, pi. 16)— and at Com- (i) 1 P. W. 181 ; 1 Smith's L. C, mon Law there was no such restric- 8th Ed. 417. For reasons of the tion. In Owen, p. 143, the doctrine distinction, IFard v. Byriic (1839), is based on the words of Magna o M. & W. 54S. Charta. Probably it arosc^ out of (/•) (1856), 6 E. &; B. 6Q ; 25 L. J. the necessity of putting limits to the Q. B. K'9. practice of corporations by bye-laws, (1) IVard v. Byrne ; see note (t). and otlicrwise preventing persons {in) Parke, B., in Malhui v. May 136 THE LAW OF MASTER AND SERVANT. for the protection of the party in favour of whom it is made. " Whatever restraint," it has been said, " is larger than the necessary protection of the party, can be of no benefit to either; it can only be oppressive; and, if oppressive, it is in the eyes of the law unreasonable " (n). Agreements not to carry on business of perfumer and hair merchant within London or Westminster, or GOO miles from the same (o) ; not to be employed as coal merchants for nine months (2?); not to carry on trade as brewer, Szc, in Sheffield or else- where for ten years (q), have been held void. On the other hand, agreements by vendors of a patent process of manufacture, not to carry on in any part of Europe a manu- facture with the same object as the patent (r) ; not to carry on business as a surgeon within ten miles of a place for fourteen years (s) ; not to practise as attorney within London or 150 miles of it(t); not to carry on business in horse- hair within 200 miles of Birmingham (u) ; not to carry on trade as a milkman for twenty-four months within five miles of Northampton Square (y), have been held valid. The de- cision of the Privy Council in Collins v. Loche (z), illustrates the mode of dealing with this question. Certain persons carrying on the business of stevedores in Melbourne, entered into an agreement with a view to prevent competition. One (1843), 11 M. & W. at p. 668 ; (n) Harris v. Parsons (1862), 32 Tallis V. Tallis (1853), 1 E. & 13. IJ.^av. 328 ; 32 L. J. Ch. 247. 3'Jl ; 22 L. J. Q. B. 185. (?/) Proctor v. Sargnit (1840), 2 M. (n) Tindal, C. J., in Horner v. & G. 20. As to wliat is meant by <7?mvs (1831), 7 Bing. 743 ; see also carrying on business, see Turner v. Parke, B.'s, judgment in Mallnnv. Evans (\9,52), -iK kK b^2■, Arn-yx. May (1843), ll M. k W. 653. Lnmjpml (1854), Kay, 663 ; 23 L. J. (o) Pricey. GrccJi (1839), 16 M. k Cli. 837. As to mode of measure- ■\V 346 nicnt of distance, Atk'jns v. Kinnicr, (p) iVnrd V. Byrne (1839), 5 M. (1850), 19 L. J. Ex. 132 ; DuUjnan & \V .-548 V. Walker (1359), 28 E. J. Oh. 867 ; (n) Ilinde v. Gray (1840), 1 ]M. & Mouflct v. Cole (1872), E. R. 8 Ex. G. 195. 32 ; 42 L. J. Ex. 8. As to how (r) Leather Cloth Co., v. Lorsont far .such contracts may be partly sus- (1869), L. R. 9 En. 345; 39 L. J. tained and iiartly rejected. Price v. (jl, 86 ''?'•'•«"• (1847), 16 M. k W. 346 ; is) Davis V. Moxon (1793), 5 T. Mallan v. Mny (1843), 11 M. k W. R 118 653 ; Nickolls v. Strefton (1847), 10 '(t) Bmm V. Gay (1803), 4 East, Q. B. 346. 190 (.) (1879) E. 15. 4 Ap. 674. CONTRACTS IX RESTRAINT <)V TRADE. 137 provision was tliat, if any merchant refused to allow the stevedoring of any ship consigned to them to be done by the party entitled to it luidor the agreement, but should require any other of the parties to the agreement to do it, the party doing the work should give an equivalent to the persons so losing the stevedoring of an amount to be determined by arbitration. The Judicial Committee thought this not un- reasonable. "It provides in a fair and reasonable Avay for each party obtaining the benefit of the stevedoring of the ships to which by the contract he was to be entitled. Each party might in turn derive benefit from this clause, and one of the four firms would always get the profit of the ship stevedored, though the work might be done by another of them. As regards the merchant, also, he can have his ship stevedored by the party whom he may require to do it, at least there is no prohibition against his having it so done." Another pro- vision in the agreement was, that the parties to it would not " undertake or be in any way concerned in or interfere in the stevedoring, either in whole or in part, of any ship or vessel consigned to any of the said persons or firms otherwise than according to the provision in that behalf hereinbefore con- tained." " The covenant in such cases," said the Court, " re- strains three of the four parties to the agreement from exer- cising their trade, without giving any profit or benefit to compensate for the restriction to either of the four, whilst the combination they have thus entered into is obviously detri- mental to the public, by depriving the merchants of the power of employing any of these parties, who are pi'obably the chief stevedores of the port, to load their ships, unless in each case they employ the one of the four to whom the ship, as between themselves, has been allotted, however great and well founded their objection may be to employ him. Such a restriction cannot be justified upon any of the grounds on which partial restraints of trade have been supported. It is entirely beyond anything the legitimate interests of the parties required, and is utterly unprofitable and unnecessary at least for any purpose that can be avowed." 138 THE LAW OF MASTER AND SERVANT. There must be a consideration for a contract in partial restraint of trade. It was once supposed that tlie considera- tion must be " adequate." It has, however, long been settled that the Courts will not inquire into the adequacy or suffi- ciency of the consideration {((). It is enough that it is not merely nominal or colourable. The restraint may be indefinite in point of time ; a man may bind himself not to practise a certain trade in a district for his whole life-time (6). Indeed such agreements are very common in the case of the sales of goodwills of businesses. Yet the element of time is not wholly unimportant. When the question is whether a contract is reasonable or not in point of space, it may be material to know how long the restraint is to be in force {c). An agreement to restrain A. from exercising his trade is obviously different in substance from an agreement binding A. not to use a secret process discovered or purchased by B. ; and Courts of Equity have always prevented persons making use of trade secrets contrary to an agreement (d). Thus A., who sells a jDatent to B., may be bound by a promise not to divulge the process to any other person. The question sometimes arises whether a contract of service may be enforced, if the consideration be partly illegal or immoral. Suppose a person is engaged to buy spirits abroad and smuggle them into this country ; it would no doubt be held that the two acts were incapable of separation, and that the whole contract was void (e). But if it be possible to separate the legal from the illegal part of the consideration — if there be, in substance, separate considerations for sepa- rate contracts — a Court will enforce one part of the contract and reject the other. (a) Gravel ij v. Barnard (1S74), ^wic {r) ; Bryson v. Whitehead {li22), L. R. 18 K(|. .018. 1 Sim. k St 74 ; Uest, C. J., in Homer (b) HUchiock V. C'okcr (IHS7), (> A. v. Ashford (18'_>5), 3 Biii;^. 322, fc E. 438 ; Cattle v. Tourle (ISGH), 327. L. K. 4 Vh. 0;:4. [r) Loake on Contracts, 779; R. (c) Pnnior V. Sarijcnl (1840), 2 v. Nartkwingfidd (1831), 1 B. & Ad. M. & G. 20. 912. (d) Leat/ur Cloth Co. v. Lorsont, see CONTRACTS IN RESTRAINT OF T15AT)]:. ini) APPENDIX A. Cases of Mutualitii. No CONSIDKRATION. V. IFliitcomh (1828), ;■) Bing. 34, 3 C. & P. 289. Defendant signed a written agreement to the fol- lowing effect : " I agree to remain with Mrs. Lees, of 302, Regent Street, for two years from the date hereof, for the purpose of learning the business of a dress-maker." No binding agreement ; tliere being no obligation to teach, and no consideration being expressed. Sykes V. IHxou (1839), 9 A. & E. 693 ; 1 P. & D. 463. Memo- randum of an agreement in the following terms : " I, William Bradly, of Sheffield, do agree that I will work for you and with John Sykes, of Sheffield, manufacturer of powder-flasks, at such work as he shall order and direct, and no other person whatsoever from this date hencefortli during and until the expiration of twelve months, and so on from twelve months' end to twelve months' end, until I shall give the said John Sykes twelve montlis' notice in writing that I shall quit his service." Agreement was a nudum factum, and could not be enforced. Williamson v. Taylor (1843), 5 Q. B. 175. Defendants, owners of a colliery, hired plaintiff to hew coals at certain rates, according to work done, and plaintift" agreed to continue defendant's servant all the time the pit should be laid off work, and, when required, to do a full clay's work on every working day. Defendants not obliged to employ plaintiff foi: a reasonable niunber of working days during the term. Aspdin V. Austin (1844), 5 Q. B. 071. The plaintiif agreed to Consideration. J'ilkin(jtvnv.Scott{l84iJ), 15 M.&; W. 657. Plaintiffs agreed with L. tliat he should serve tiieni for seven years ; that he should not during tliat term work for any oilier person without the license of the ]ilain- tifl's ; that it sliould be lawful for the plaintifl's to deduct from his wages any fines, &c. ; and that the plaintifl's should have the option of dismissing him from their service on giving a month's notice or a month's wages. Held that, look- ing to the provisions of the agree- ]nent, there was an undertaking to employ L. for seven years. Hartley v. CumlniiKis (1847), 5 C. B. 247; 17 L. J. C P. 84. Agreement between plaintift' and A. that A. should serve for seven years at a given rate of wages, and not \\'ork or serve any other i)erson without master's consent ; in con- sideration of which plaintift' agreed to pay A. 24s. per week for certain work ; plaintift' to be at liberty, if A. were sick, or if A. discontinued the trade, to retain any other person in A.'s place, without pay- ing him wages. The agreement not void for want of mutuality, or for being in unreasonable restraint of trade. R. V. Welch (1853), 2 E. & B. 357 ; 22 L. J. M. C. 145. R.Whit- taker, in consideration of £Z lent or advajiced to him by cer- tain persons nieiitioned in the agreement and of wages to be paid by them, agreed to serve them and no one else, without their consent, for twelve months and during and until the ex- piration of three months from notice of his desire to termi- 140 THE LAW OF MASTER AND SERVANT. No Consideration. iiiaimfacture for the defeiulant cement, and the defendant, on condition of his faithfully ])er- fonniug the aforesaid contract, covenanted to pay the plaintitf the weekly sum of £4 durin;.; the two years followinf. Held, on juotion in arrest of judf^ment, tliat there was no covenant corresponding to tlie breach. See, however, Mclntifrc V. Bdcher, 32 L. J. U. 1^ 254 ; JFortliington v. Sndlow, 31 L. J. Q. B. 134 ; and Cronipton, J., iu Evvinens v. Eldcrton, 4 H. of L., p. (;24. Fayne v. New South JJ'ales Coal, dx., I'o. (1854), 10 Ex. 283. De- fendants agreed with plaintiffs that plaintiffs should have defendants' ship-brokering business at Sydney upon certain terms, and that de- fendants would provide plaintitls with free passage to that fjort ; void, plaintiffs not being bound to serve defendants. Consideration. Exchequer Chamber reversed the judgment of the ('omnion Pleas ; the House of Lords aflirined the judgment of tlie former. The company was bound to continue tlie lelatiou for a year, but not boun). On the other hand, there are autho- {(i) Vol. V. p. 362, citing Pi«c7i07(,'s (h) Ponchcr v. Norninn {\h2^), ?i Case, 9 Kfipoits, 86b (whicli socnis 15. & C. 744 (ixctioii by certilicated .scarcely in imint). See Lc Blanc J., convcynncer for work done) : "The in A". V. Shinfirld (1811), 14 East, general rule," said the Court, "is, r,47_ ' that any man who be.stow.s his labour DUTIES OF MASTERS. 143 rities wliicli go to show — and tliis seems the true view — that service, however long continued, creates no claim for remu- neration without a bargain for it, either expressed, or implied from circumstances showing an understanding on both sides that there should bo payment (c). It is highly doubtful whether there exists any presumption on the subject ; if it exist, it is not irrebuttable, and it appears to be only the con- clusion to which general usage and knowledge of the world warrant juries in arriving. Service is usually performed in the expectation of receiving wajres, and in most cases it would be correct, looking to usage, to say that there was an implied promise to pay them. But one may serve another out of gratitude or affection ; one may intrude one's services upon another, or render them with- out his privity or assent. It is not uncommon for persons to work for years in the mere hope that they will be remem- bered by a testator in his will. A person, too, may serve for a time on the understanding that he is on probation, and that nothing is to be paid to him in the meantime. In every contract of hiring and service are presumed a request and promise to pay; but in a multitude of cases there is, in fact, for another lias a viiijht of action to Courts against infening a jiromise to recover compensation for the labour. pay froni the mere fact that services There are two exceptions to that are rendered, is shown by Lamburn rule, viz., physicians and barristers." v. Crudeii (1841), 2 M. & G. 253; ((•) Martin, 11., in Reeve v. Beeve 2 Scott, N. P.. 533. (Servant engaged (1858), 1 F. & F. 280, and Foonl v. at a yearly salary payable quarterly ;_ Morlcy (1859), 1 F. & F. 496 ; see also about a month after the termination of Higgins v. Hopkins, note [d). Slaves one of the years of his service, he who came to this country, and who tendered hisresignation; after another brought actions in the time of Lord month the resignation was accepted ; Mansfield and Lord Kenyon against nothing was said as to tlie remunera- their masters for remuneration, were tion for the time which hud elapsed always nonsuited in the absence of since the termination of the last proof of a special agreement to pay. year's service. Held that "no new Rex v. Thames hiffon (1785), 4 contract arises by implication of law Doug. 300; Alfred v. St. James upon a simple dissolution of a special (1799), 3 Esp." 3. In tlie latter contract of hiring and service, in case a promise to pay wages was resi)ect of services performed under proved, and it might" be inferred such special contract previously to that, previous to the promise, no re- its being dissolved.") See, on the muneration was intended. See as to other liand, Bayleijx. Rimmell (1836), the contrary doctrine in the American 1 AI. & W. 506. Courts, Wood. 107. The bias of our 144 THE LAW OF MASTER AND SERVANT. neither request nor promise. Often the parties never give a thought to their legal position until their relation is ended by a quarrel or death. The question is one of fact : was there an agreeipent or distinct understanding that the person who does the work should he remunerated ? Obviously this can be determined only by considering the whole circumstances, the situation and relationship and condition of the parties ; and the character and value of the services performed. When people do work for another with his knowledge — say, labour in his fields, or paint his house— they, as a rule, expect to be paid for it ; the law will infer a promise to pay for such work (d). But this is not inevitable ; and the true view seems to be, that if a person " does work on the order of another, under such circumstances, that it must be pre- sumed that he looks to be paid as a matter of right by him, then a contract would be implied with that person " (e). This rule may not be of much assistance in determining cases as they arise ; it is difficult to state any clearer rule as to the circumstances in which the law will raise an implied promise to pay. Tro?7i- done fur Relatives and Friends. Frequently, when work is done for relatives or friends, it is hard to say whether wages or remuneration is due. The difficulty is one not of law, but of fact, which it is for a jury, on a review of the Avholc circumstances, to settle. In several American cases, attempts are made to lay down rules of law as to the circumstances in which it is proper, and as to the rela- tives for whom it is right to presume that services are or are not rendered for hire. " In all cases," says Mr. Wood, in his " Law of Master and Servant," summarising several decisions (d) Jliygins v. Hopkins (1348), 3 do but put thcni on » Is thut cvi- •^^ jgg dcnce of a contract to pay for (e) Tlie words of Pollofk, C. V>., in cleaning? " See Bradshaw v. Hay- Taylor v. Laird (IS.'ir,), 25 L. J. Kx. i/v,n/ (1842), Ciir. k M. r,91 ; Slokrv. 329 may lie (juotcd : "One cleaii.s J'itmiiistcr {17-26), 2 liott.lSH ; Ji. v. another's shoes ; what can the other Wcyliill (1759), 2 Bott. 185. DUTIES OV l\rASTEKS. 145 " where compensation is claimed for services rendered for near relatives, as a fatlier, brother, grandfather, &c., the law Avill not imply a promise, and no recovery can be had unless an express contract, or circumstances equivalent thereto, is shown" (/). "Where the parties stand to each other in the relation of members of tlic same family, as brothers, father and son, or father and daughter ; or, if inmates of the same family, though only remotely related, there is prim.d facie no implied promise to pay for labour done " (any not being carried out, or of making any further advance for the continuing of the same." The com- jiaiiy was Jiot registered or "carried out." No action lay for salary or conipensiition.) ii*.'' 2)arte Metcalfe (1856), H K. k P.. 287. (Refusal to grant mandamus to Local Board of Health to pay reasonable remunera- tion to a ])erson wdio jiresided at the first election of the board ; the board having, under the 11 & 12 Vict. c. 03, s. 30, discretion as to what thev thought reasonable.) Bird v. Mcbahcy a!5-i!"). 2 C. ^ K. 707 ; ' llau-limjs v. L'iKtndkr (1854), 9 l"2x. 687. (;0 (1820), 4 C. & r. 93 ; see also L(iH(lo)i- I'rdmiray Co. v. Bailey (1877), J>. \\. 3 Q. B. D. 217; 47 \u J. M. C. 3 ; 37 L. T. 499 ; 26 AV. H. 494 ; and as to the power to rescind unilcr the blaster and Ser- vant xVct of 1867, and Employers and Workmen Act of 1875, arbitra- tion clauses ; Wilson v. Glasi/oir Traiiurcnj Co. (1878), 5 K. 981. (o) (1833), 9 Hing. 672 : MothUl v. Dicl-smi (1853), 13 C. B. 375 ; Forbes V. Milne (1827), 6 S. 75 : (lady engaged a servant on condition that lie oljtaincd a certilicatc of character I'rom his last employer ; no cause of action unless such certilieate ob- tained). DUTIES OF MASTERS. 149 and had sent them to the defendant ; there was no certificate, and the action therefore couKl not lie. Gvdtuitu'S, and Work done in Exiieddtlon of Le(j^. No action will lie to recover gifts or gratuities. It is not always easy, however, to ascertain what are gifts or gratuities ; that a particular sum is spoken of as a gratuity does not necessarily decide that it is not of the nature of wages {'p). Presents or gratuities to a servant under age cannot be deducted by a master from wages. Thus, in one case in which a master gave to a maid of all work a silk dress, and paid for coach fares to her mother's house, it was held that he could not deduct these sums from her wages {q). We need not examine here all the decisions as to services rendered in expectation of a legacy. Few general principles can be extracted from the authorities. Tiic question in every case appears to be whether the person who rendered the services trusted to the generosity of him for wliom he worked, or whether there was an implied understanding (or, to be more accurate, a contract), that remuneration was to be given him (r). If the work were done on the strength (;?) (1862), Lake v. Campbell, 5 legacy, cannot afterwards resort to L. T. N. S. 583 ; Parker v. Ibbctson his action.") Baxter v. Gran (1842;, (1858), 27 L. J. C. P. 286 ; 4 Jur. 4 Scott, N. K. 374 ; 3 U. & il 771. N. S. 536. (Action for -vvork and labour hy a [q) Hcdijky V. IIuU (1829), 4 0. k surgeon against executors of a lady P. 104. whoni he had attended ; no bill {r) Le Sage y. Co ussmaker (17^4), I was sent in durin^i; the lady's Esp. 187. (Assumpsit for work and lifetime, plaintilf being in hoi)es labour by a stockbroker ; defence tliat that she would leave him a legacy ; theservices were gratuitous, and done jury gave plaintiff £250 damages, solely with a view to a legacy : lield Court refused to disturb the verdict, by Lord Kenyon, that it was a (jues- Tindal, C.J., observed : "The plain- tion for the jury.) Osboni v. Gover- tiff probably hoped and expected nors of Gui/s Hospital (1726), 2 to receive a legacy ; but, this lio})e Stra. 728. (Action for work and la- failing, I see no reason wliy he hour in transacting Mr. Guy's stock should not be held, to be remitted to affaii-s. Eaymond,'C. J., directed the his legal right." " The ordinary pre- jury to decide what was the under- sumption is that services are ren- standing between the parties ; "a man dered in expectation of a rennme- who expects to be made amends by a ration, unless the contrary is proved :" 150 THE LAW OF MASTER AND SERVANT. of the expectation of a legacy, and executors were to pay such clauns, thi."y might be disalloweil in their accounts (.s). Remuneration fo r Work done wider a Contract Terminated l)y Mutual Consent, dr. If a contract of hiring and service be dissolved by mutual consent, a servant may recover wages jrro rata. Such also is the case when he is dismissed without proper cause before the end of the term (though he may also recover damages calculated with reference to the loss he has sustained) ; or, when a servant, without having actually done all which he agreed to do, has performed services which are of value, and by which his master has benefited (t). Remuneration fur Extra Wo)i\ What is a fair day's work is to be ascertained by reference to the agreement, or to custom. Failing that, it is a question of what is reasonable in the circumstances. Of cour.se, a servant njust be allowed a reasonable time to eat and sleep (x). Whetlicr he must work on Sunday depends also on the nature of his employment and usage. A servant may recover remuneration for work done out of hours, or outside the scope of his regular employment (?/). But in order to entitle him to Coltinan, J.). Sludlcrvas x. Jl'ri(jhl faction dl' tlic lioiid. Tlic trstator hiul (185(t), 12 Jieav. .^j.58 ; and DalUiKjcr by liis will diiectcd that all debts and V. fit. Albyii (1879), 41 L. T. N. \S. legacies .should be paid. 406. (0 ^^'*^ <'s to this. Fa nisirorth v. (s) As to beciuests in satisfaction Garrard (1S()7), 1 t^anip. 38 ; Munro of wages, sec Koper on Legacies, 4th v. Butt (1858), 8 E. k K 738; and Kd. I(i2(j and 10r<:3 : also Cliancijs the notes in Smith's L. C. to Cutter (Jasc (1717), 1 l\ W. 408. (A master v. Powell. being indebted to his man-servant for (.c) IVilson v. Sutisoii (1844), 6 D. wages, £100, gave him a Ijond for the 125t) ; Parsons, 2, 41 ; and see as to .t;iOO, as dui! for wages, and after- this, C> Eiiz. c. 4, ss. 12 & 13. Fra- wards, by will, gave £51)0 for long and scr's blaster and Servant, p. 408. tiithful services. Lord Chancellor (y) Wood, 172. King held that this was not in satis- DUTIES OF MASTERS. 151 recover, the services must clearl}^ not be such as he is bound to perform under his contract of hiring and service ; the services must be wliolly diffei-ent from these either in kind or amount. Otherwise an agreement for extra remunera- tion will be nudum pactum ; there will be no consideration for it, (a promise to do what one is bound to do forming no consideration), and it will not be en forced (z). Harris V. Carter (a) illustrates this principle. The plaintiff, a sailor had signed articles for a voyage out and home at £8 a month. Several of the crew deserted at the outward port, and the captain, to induce the plaintiff and others to stay, agreed to articles for the homeward voyage at £6 a month. It was held by the Queen's Bench, that it was the duty of the plaintiff to perform the contract into which he had originally entered for the outward and homeward voyages, and that the subse- quent promise was void for want of consideration. " Had the plaintiff," said Lord Campbell, " been relieved from the obligation which he had contracted towards the shipowners, (::) Chap. X. («) (1854). 3 E. & B. .559 ; 23 L. J. Q. 13. 295 ; Bell v. Drummond (1791), 1 Teake, 63. (Plaintiff acted as deputy to clerk of commission- ers of land tax, at salary of £100. New duties afterwards imposed upon the plaintiff : held that this raised no implication that servant was entitled to additional salary.) Harris v. Watson (1791), 1 Peake, 102. (No action will lie on a ])romise by a cap- tain to a sailor of extra wages if \w would ]ierform extra work). Elsworth V. Wuolnwrc (1803), 5 Esp. 84. (Sea- men cannot recover extra wages in virtue of any usage or custom.) sulk V. Mcyrkk (1809), 6 Esp. 129 and 2 Cam]). 317. (Promise by de- fendant, a captain, to divide among ci'ew the wages of two men who had deserted ; no action lay. "They had undertaken to doallthej'- could under all the emergencies of the voyage." Ellenborougli, C. J.) Frazcr v. Hattmi (18.57), 2 C. B. N. S. 512 : 26 L. ,T. C. P. 22(i. .Agreement by plaintilf to serve as steward tor three years on board defendant's shi}) Gustos at £3 a month; stipulation that lie should, if required, be transferred to any other sliip in the same employment ; during tlie three years, plaintiff was trans- ferred to the ship Dauntless ; by a second agi'eenient the captain pro- mised to pay plaintiff £4 a month : held that there was no consideration for tlie second agreement.) Carter v. Hall (1818), 2 Sta. 361. (Plaintiff, pur- ser's steward on board one of tlie king's ships, in receipt of a salary from the Crown : held that lie could not re- cover extra remuneration from the defendant, the purser, thougli there was evidence that it was usual for the purser to pay one ])ound for I'very gun by way of annual salary). The Araminta (iS54), 18 Jur. 793. (.Master of a ship distributed the amount of wages forfeited bj'- de- serters among those sailors who wouM manage the ship home : held that the owners were entitled to deduct the amount from the wages due.) Money V. Htnnan (1867), 5 S. L. K. 32. 152 THE LAW OF :master and servant. he might have entered into a fresli contract, and, under some circumstances, the captain might have had authority to bind the owners by entering into afresh agreement on their behalf with him. Had there, for instance, been an entire change of the voyage, it might have been so. But here there were no circumstances of that kind. The voyage remained the same voyage for which the men had shipped ; there was no con- sideration for a promise to the pLaintiff ; and the captain liad no authority to bind the owners." So, too, a promise to pay a pilot unusual remuneration for services which he was bound by statute to render to a ship would be held void (h). The question has generally arisen between owners of ships and seamen, when the latter, owing to desertion or other causes, have refused to proceed on a voyage unless they were paid extra remuneration. The Courts have always held that promises made in such circumstances are invalid. There is authority for saying tho.t if payments are made by a captain under such a contract, they may be recovered by the owner (c). If, however, extraordinary services be required and rendered, if risk far in excess of what was contemplated have to be encountered, if the work to be performed be clearly additional to the servant's duties, a promise to pay extra Avages will be enforced. The limitations of the principle stated in Harrifi v. Carter, will be understood by comparing it with Hartleys. FonsonJnj (d). The crew of a ship was reduced from tliirty-six (the number on board when she sailed from Liverpool) to nineteen, only four or five of whom were able seamen. The captain entered into an agreement with certain of the seamen to pay them increased wnges if they would continue to navigate the ship. The agreement was held binding. "If there had been merely additional labour, and the voyage dangerous to life from this excess only," said Lord Campbell, " I should have thought that the new contract was not binding on the master any more than on (b) Mfiuil<- k I'olloc.k, 4lli oil., ]). (c) The J nnninta, see note (a). 64G; but see the Jonyc Andrics {d) (1857), 7 E. & B. 872; 26 L. (1857), Swa. 226. J. Q- B. 322. DUTIES OF MASTERS. loo the owners. But I think that wc must take it, from tlie finding (that it was unreasonable fur a ship (jf 1,04.5 tons to go to sea with only nineteen men), that tiie plaintiff and the remaining crew were not bound under these articles to proceed on the voyage, and so were free men and at liberty to make a fresh bargain " (c). There is nothing to hinder a seaman recovering for salvage services, and any stipulation in an agreement by which he consents to abandon his right, will be Avholly inoperative (/). Entire and Divisible Contracts of Service. A contract of service may be entire and indivisible, that is, the consideration may be dependent on the entire fulfilment of the contract — the entire fulfilment of the j)romise given by one party being a condition precedent to the fulfilment of any part by the other (g). It may be severable or divisible, that is, the consideration may be susceptible of apportion- ment according as the contract is more or less carried out. The terms of the contract may make it perfectly clear whether it is divisible or not. For example, a man may engage to do work at so much an hour or a day, or so much a foot, in which case he is free to leave off at any time and claim the (c) Sec also The Providence (1825), case of a person perfectlj' free when lie 1 Hag. Ad. 391. (Second mate entered into tlie agreement.) succeeded tu the otlice of chief mate (/) 17 & 18 Vict., c. 104, .s. 182, during the voyage ; no alteration in and sec. 2. live Florence (1852), I'i contract with reference to change of .Jur. 572. (Ship abandoned at sea ; office ; held entitled to rate of \vages subsequently recovered by her crew : given to chief officers in similar voy- held that crew were entitled to be ages.) Cluttcrbuck V. Coffin {IM2), 3 rewarded as salvors.) See also the M. L G. 842. (Plauitiif engaged by ^ame view taken in The Vrcde{\%&\), commander of a brig of war to serve 30 L. J. P. 209, and Hanson \. Roy- as cook, at tlie rate of £12 a year clcn (1867), L. R. 3 C. P. 47 ; 37 1.. beyond tlie rating of a seaman : J. C. P. 66. (Captain died during action for wages ; defence tliat there voyage ; first mate took his place and was no con.sideration ; but held that appointed A., an able seaman, second the plaintiff could recover, this not mate ; held that A. could recover being a case in which the plaintiff second mate's wages.) contracted to do work which he was {g) See Smith's L. C. vol. ii. p. 1. already bound to perform, but the 154 THE LAW OF MASTER AND SERVANT. value of the Avork which he has dom-. If the contract, on the other hand, be that the one party sliall do the whole of a certain amount of work, and that the other shall pay for the whole — if one promise a lump sum for a detinite and complete thing — it is different. No one would say that a portrait-painter could sue for his labour upon an unfinished picture, or that a watch-maker emj)loyed to repair a watch could be entitled to recover before he had completed his work. He cannot sue for the wdiole remuneration, because he has not performed the whole work ; he cannot recover on a quantum meruit, because the contract is entire. Thus, a workman who had agreed to repair and make perfect chandeliers for £10, was held not entitled to recover anything, though the jury found that he had done work to the value of £'o (ji). The rule appears to be, that if a contract be for a certain defined time, even if the rate of compensation be at so much a day or week, it is indivisible, nnd full performance is a condition pre- cedent to recovery, in the absence of some custom to the con- trary. Thus, to refer to the leading case of Cutter v. Poivell {%), the executrix of a sailor, who was hired as second mate for a voyage from Jamaica to Liverpool for thirty guineas, failed to recover a proportionate part of his wages in these circum- stances : The sailor had died before the whole voyage was completed ; the contract was held to be entire ; the per- formance of the whole service was a condition precedent, and in the absence of proof of any usage to pay proportionate suras, his executrix could recover no part of the thirty guineas. So, too, sailors, who IkuI agreed not to demand their wages or any part thereof, until they arrived at the port of discharge, were held to be incapable of recovering ■wages pro raid if their ship were lost, or the voyage from any cause were not brought to completion (/.:). An early (/t) Sinclair V. Bowles (\S2'J), '.» 1!. C. vol. ii. ]>. 1. & C. 92; 4 M. k K. 1. Tliis case, (/■) Abbott on Sliipj.inr; (Prentice's liowever, partly turned on the form of cd.), 464 : .see, however, Chaiidler v, the action. Orfvoi (171)2), 2 H. HI. 606, n. (i) (1795), 6 T. II. 320; Smith's L. DUTIES OF MASTERS. lOJj case, which strikingly ilhistrates this doctrine, is Throf/- morton v. Countess of Flyniouth {I). The Earl of Plymouth had appointed a person, of whom the plaintiff was adminis- trator, to collect rents at a salary of £100 a year. He died after serving three c[uarters of a year. The administrator sued the Earl's administratrix for remuneration pro rata. The Court held that nothing was due. The most frequent illustration of the doctrine occurs in the case of domestic servants hired for a definite time. If dismissed for mis- conduct, they forfeit all right to any wages which have not accrued due, even for the time which they have served {m). On the other hand, if a contract be not to do a specific work for a specific sum, or work for a definite term ; if the work be in its nature apportionable, and no remuneration be fixed upon ; if the parties obviously intended payment to keep pace with accrual of benefit ; if there be no express contract or custom to complete work before any remuneration is paid ; if something be done under a special contract which is not in strict accordance with it, but from Avhich benefit has been derived ; the performance of a part will entitle a Avorkman to partial payment. A shipwright was employed to repair a ship ; no sum for the total repairs was fixed ; after having completed a portion of the work, he refused to go on till he was paid for what he had already done ; it was held that he could recover on a quantum meruit (n). According to the maritime law, freight was the mother of wages, and if the former w-ere not earned, neither were the latter (o). The Court of Admiralty, especially in Lord Stowell's time, sought to prevent the harsh consequences of this principle (p). In the exercise of an equitable jurisdic- (l) (1686) 3 Mod. 153 ; 1 Salk. 65. titled to the suit.) (»!) Chap. XXllI. Croclccr v. (n) Roberts v. Havelock (1832), 3 Mohjiiru.!- (1828), 3 C. & P. 470. B. & Ad. 404. (Plaintill" hired for a year and pro- (o) See The Juliana (l?>-2-2), 2 Dod. vided witli a livery suit ; wroni^fully 504 ; ilaelachlan, 215. dismissed withiu the year ; couid not {p) The Neptune (\S-2i), 1 Hag. maintain trover for suit. Of course, 227 ; and see cases cited in Lord lie might have brought an action for Stowell's judgment in TM Juliana, being prevented from becoming en- note {o). 156 THE LAW OF MASTER AND SERVANT. tion, the Admiralty Court, decided tliat Avhen a voyage was described in the articles of agreement by reference to various ports of delivery, a proportionate claim for the payment of wages attached at each of them, and that all attempts to prevent this by special contracts were ineffectual and void (q). The Legislature has abolished the rule that wages are depen- dent on the earning of freight. The Merchant Shipping Act of 1854, 17 & 18 Vict., 104, sec. 18?, says : " No right to wages shall be dependent on the earning of freight ; and every seaman and apprentice who would be entitled to demand and recover any wages if the ship in which he has served had earned freight, sliall, subject to all other rules of law and conditions applicable to the case, be entitled to claim and recover the same, notwithstanding that freight has not been earned ; but in all cases of wreck or loss of the ship, proof that he has not exerted himself to the utmost to save the ship, cargo and stores shall bar his claim." Section 184 of the same Act says : " If any seaman or apprentice to whom wages are due under the last preceding enactment, dies before the same are paid, they shall be paid and applied in the manner herein- after specified with regard to the wages of seamen who die during a voyage." By the maritime law, a sailor's wages could not be with- held or reduced because he was sick or had been disabled by an accident in the course of his duties (;•). This is still so if a seaman remain on board, unless the sickness or accident be the result of his own default. If any temporary detention of a vessel by force — for example, by an embargo or capture followed by recapture — occurs, the seamen will be entitled, (<2) The Jidiana; Ahhott on Shii>- (1824), 1 Hag. 248; The Mhurra ping, Prentice's ed., p. 46.5. (1825), 1 Hag. 347; George Home (r) read V. Eden, Abbott on (IS'j:)), 1 Hag. 370; HUhjard v. Shipping, 4G7, I'rentice's ed. ; Chan- Mo>nU (1828), 3 C. & P. 93 ; Sinclair dler V. Grieves, .sec note [k), supra. Tlie v. Bowks (1829), 9 B. & C. 92 ; Friiice following arc tlic chief cases on tliis Frederick (1832), 2 Hag. 394 ; Jesse snh\evt:—ni(l!cy.IIei'/hhnan(l8i)-l), v. A'oy (1834), 1 Cr. M. & R. 316; 2 East, 145 ; Appleby v. IJodds (1807), Butlon v. Thompson (1869), L. R. 2 8 Ea„st, 300 ; Countess of JIareourt C. P. 330. DUTIES OF MASTERS. 167 not only to their own full wages, but also to wagos f(jr the period of detention (.s). Reinimeration for vjork Unskilfully Done. For work which is executed unskilfully or improperly, or not in such a manner as was bargained for, a workman will be entitled to recover only the reasonable value of his services. The rule, as laid down in some early cases, was different. If the work were executed under a special contract, the employer, it was said, must pay the stipulated price and obtain compensation by resorting to a cross action. But since the decision of the King's Bench in Basten v. Buffer (f), a more reasonable rule has been recognised. That was an action by a carpenter against a farmer who had employed him to roof a barn. Evidence Avas offered at nisi prius, with a view to show that the Avork was improperly done. The evidence was rejected. The Court of King's Bench set the verdict for the plaintiff aside on the ground that the evidence should have been admitted ; and in the subsequent case of Farns- uvrth V. Garrard (u), Lord EUenborough stated thus the correct rule : " If there has been no beneficial service, there shall be no pay ; but if some benefit has been derived, though not to the extent expected, this shall go to the amount of the plaintiff's demand, leaving the defendant to his action for negligence. The claim shall be co-extensive with the demand." In illustration of this, Monneypcnny v. Hartland (x) may be mentioned. There it Avas held by Abbott, C.J., that a surveyor whose estimate of the cost of a bridge turned out to be incorrect to a considerable amount, owing to his not having examined the nature of the soil, could recover nothing. So in Bracey v. Carter ( y), it was (s) Beale v. Thomjyson (1S04), 4 terials employed, in rebuilding the East, 546 ; Maclaclilaii, 231 ; i\laude front of a liouse, which, when finished, & Pollock, 4th ed. I. 2-23. -was in great danger of falling.) (t) (1806) 7 East, 479. (a-) (1S24) 1 C. & P. 352. (u) (1807) 1 Camp. 38. (Action {y) (1840) 12 A. & E. 373 ; see for work and labour done, and ma- a\so Le Loirw Bristoio{\'i,\s), ^Ca.m]}. 158 THE LAW OF MASTER AND SERVANT. decided that a solicitor guilty of negligence, by reason of which all tlie previous steps taken in an action entrusted to him became useless, could obtain nothing for his labour. In the Admiralty Court it is well understood that a seaman may wholly forfeit, by drunkenness or other miscon- duct, his right to wages. Desertion formerly always involved this result {z) ; but the JMerchant Shipping Act has invested the Court with discretion as to this ((()• It is said to have been laid down by Lord Stowell (6) that " any acts which will justify a master in discharging a seaman during the voyage Avill also deprive the seaman of his wages." This rule, how- ever, is not followed, at all events in the case of ordinary seamen. Thus a common sailor will not, though a mate or other person in authority might, forfeit his wages foi- having been once drunk. To warrant this there must be habitual drunkenness or mutinous conduct, or gross dis- obedience, or conduct endangering the safety of the ship (c). In TIu! Thomas Wortldngton (d), Dr. Lusliington thus indicates the principles on Avhich the Court acts : " Cases, indeed, may occur, even in this Court, where the misconduct may be of so gross a description that, independent of any actual loss sustained by the owners, the entire forfeiture of wages would ensue ; as, for instance, if a master had at- tempted to commit barratry ; or if throughout a voyage he had shown gross incapacity, or had been constantly drunk. 134. (Valuo of goods lost liy a be unnecessary to counterclaim, servant (IfilucU'd iVi/iu wages due ; it (z) Thr I'm rl (TiS04), 5 ('. Koli. being part of the agreement between 2'24 ; Mailil. on Merchant Shipping, plaintilf and defendant tliat the '240. former shoidd jiay out of his wages (a) 17 & IS Vict., c. 104, s. 243. for the value of goods which were in- (6) T/ic Knicr (1799), 2 C. IJob. trusted to liim, and which were lost 2r)l. Dr. Lusliington in T/ir Jilak^ by his negligence.) JJuncan v. Blini- (18:J0), 1 W. Koh. 73. No such dell (1820), 3 Sta. 6 ; Chaprl v. e.vpressions are found in the report Hickrs (1833), 2 Cr. & M. 214 ; Clr- of Thr J-Jxcln; in 2 C. Kob. 2(il. worth V. Pid-ford (1S40), 7 M. & W. (c) The Malta (1828), 2 Hag. If.S ; 314; Turner v. Diaper (1841), 2 M. The Owdol ier {}Si5), 3 Hag. 190; &G. m ; Newton V. FurslmlSii), The Jllakc (1839), 1 W. ]!ob. 73; 12 M. & W. 772. It is submitted Maclachlan, 231. that in cases where the original ((/) (184S), 3 AV. Kob. 128, 133; contract was to y)ay so much, subject Macladiian, 231. to certain deductions, it would still DUTIES OF MASTERS. 150 In eitlicr of these cases, would this Court be justified in pronouncing for any part of his wages under the contract? Unquestionably not ; and, if any such case came before me, I should not hesitate for a single moment in rejecting his claim in toto." It is sometimes laid down that a master cannot set-off, by way of equitable defence, damage sustained in consequence of goods having been lost by a servant's negligence (e). Now^ however, under the Judicature Acts, Order XIX., r. 3, " a defendant in an action may set off, or set up, by way of counterclaim against the claims of tlie plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and such set-off or counterclaim shall have the same effect as a statement of daim in a cross action, so as to enable the Court to pronounce a final judgment in the same action, both on the original and on the cross claim. But the Court or a Judge ma}-, on the application of the plaintiff before trial, if in the opinion of the Court or Judge such set-off or counterclaim cannot be conveniently disposed of in the pending action, or ought not to be allowed, refuse permission to the defendant to avail himself thereof" (/). Under the Employers and Workmen Act, 1875 (38 & 39 Vict, c. 90, s. 3, subs. 1), the County Court " may adjust and set-ofif, the one against the other, all such claims on the part either of the employer or of the workman, arising out of or inci- dental to tlie relation between them, as the Court may find to be subsisting, whether such claims are liquidated or unli- quidated, and are for wages, damages, or otherwise" (g). (c) Le Loir Y. Bristoic (1815), 4 asliou.sekeeperLyapronii.se made ver- Camp. 134. ball v to her lo make a will, leaving li^r (;') Aldcrson v. Maddison. (1881), a lite interest in the farm. The Judge 50 L. .]. Q. B. 4t)G. (Action hrought entered .iud,^^nellt for the defendant ; hy the plaintiff as heir-at-law to but the Court of Appeal set it a.side recover title-deeds of eertain pro- on the ground that the contract re- perty. Tiie defemlant, who had been lated to laud, and that there had not for some years in the .service of the in- been part performance sunieient to testate T. A. as hou.sekeeper, counter- take the case out of the Statute of claimed for a declaration that she was Frauds.) entitled to a life estate in a farm. (/t/W.'/^ (1881), L. K. 18 Cli. D. 254. Rishton v. Grissell (1870), L. K. 10 Eq. 393 ; 18 W. 11. 821. (The plaintiff, defendant's ma- nager, was lield not entitled, in ahsence of fraud, to interest on each overhalance front the year at which it was ascertained, hut only from the time of demand). Pcarsc v. Green (181!)), 1 .Tac. & W. 135 ; Ted v. Bceix ri85!i), 24 L. J. Ch. 782. (r) See ,SV//cH- v. Korman (1820), 4 ('. k V. 81 n ; Litatfi v. Xodisi- lisld (17it5), 1 Esp. 290. Interest not allowed on claims for work and lahour; 'f I'll ate niji V. Tlmmas (178'.)), 1 II. I>. 303 ; Mi/soni Price 134. (x) ' Hiiinlnmi (1842), 2 Mont. ] ). & l)c' ( i . ()42." The mate of a vessel hired by master, wlio was part owner, within sec. 48 of 6 Geo. iV., c. IG. Ex parte i/.OTix (1845), 9 Jiir. 497 ; DeGex, IGj. Clerk entitled, tlionj,di absent from business owini,' to ill health for three montlis before the bankruptcy. Ex parte Hickin (1850), 14 Jur. 405 ; 3 De. G. & S. iHii. Petitioner entered service of banki'Upt as book-keeper and cashier in 1844 ; continued as such until December, 1848, without coming to agreement as to salary. It was then agreed that the salary should be £250 a year from 1844 ; the reason why no earlier arrangement was made being that the bankrupt led peti- tioner to believe that he should share in the profits of a certain patent. Ex parte Oldham (1858), 32 L. T. 181. A clerk to a custom house agent, engaged his evenings in the bankrupt's services, held entitled to allowance under 1G8 sec. of Act of 1849.— Commissioner Goul- burn. Ex parte Chi2)chasc (1862), 11 W. K. 11 ; 7 L. T. N. S. 290. A city editor of a newspaper em- ployed at a weekly salary ; engage- ment terminable at month's notice. Not Servant. ment elsewhere, not within the Act. Ex parte Hall (185.3), 3 Dc G. M. & G. 155. " Drawers " who were paid by and attached to the colliers employed by the bankrupt, and who were in attendance on the colliers. Ex parte Siuinwns (1858), 30 L. T. 311. A clerk paid by commis- sion on the goods sold by him, and not at a iixed salary, not within sec. 168 of Act 1849.— Commis- sioner Fane. Ex parte Butler (1857), 28 L. T. M. 375. A pers(jn wlio was em- ployed as accountant at an annual salary of £120, and who was the petitioning creditor in res])ect of salary upon which the adjuilication issued, not a servant within 168 sec. of Act of 1849. — Com- missioner Goulburn. Ex parte Harcourt (1858), 31 L. T. 188. A singer at a tavern not Avithin the Act of 1849. — Commis- sioner Fane. Ex parte Walter (1873), L. R. 15 Eq. 412 ; 42 L. J. B. 49 ; 21 "W. R. 523. A non-resident music- master and a drill-sergeant engaged to attend a school twice a week at a certain rate per hour or per lesson, not preferential creditors within sec. 32, sub-sec. 2 of the Act of 1869. Ex parte Ha mptaon ( 1 842), 2 ]\Iont . D. & Dc (i. 462. Question con- sidere. 468, it was said that a clerk must wait till there is a sutiicient sum for i.ayment of his demand after the expenses of working the liat have been provided. .Servants are not bound to wait until the trustee has examined the debtor as to his aflairs : Ex parte I'ovi.t (1873), L. R. 17 Eq. 130. See as tf) proof for ])roportion of salarv, which woidd have accnied after winding up, Yellamrs Case (1867), L. II. 4 Eq. 350 ; Clark\-i Case (1869), L. R. 7 E(i. 550 ; 38 L. .1. Cli. 562 ; 20 ].. T. N. S. 774 ; Ex parte Lbinvi Coal Co. (1871), L. R. 7 Ch. Ap. 28. CHAPTER XIY DURATION OF THE CONTRACT. It is tlie duty of a mas^ter to receive his servant into his employment, and to retain him in his service for the time agreed upon. In the absence of circumstances showing an intention or custom to the contrary, hiring will be presumed to be for a year (a), or, as it is often expressed, general hiring or hiring when no term is fixed is presumed to be a yearly hiring. This presumption, it has been said, was established in order to give master and servant the benefit of all the seasons (h). A more probable explanation of it is that it arose in conse- quence of the statutory enactment (5 Eliz. c. 4, sections 3 and 7, and other statutes), long in force, that hirings should be by the year. The presumption is limited, according to some judges, to servants in husbandry (c) ; but the weight of authority appears to show that it is applicable to (rt) Coke Litt. 42 b. : " If a man iiiontlily wages) ; Turner \. Bobinson retain a servant generally without (1833j, 2 N. & M. 829 ; Huttman expressing any time, the law shall v. Boulnois (1826), 2 C. & P. 510 ; construe it to be for one year, for Crccn v. H'rUjlit (1876), L. R. 1 C. that retainer is according to law." P. 1). 591. In America a general Faiccctt V. Cash (1834), 3 N. & M. hiring is regarded as prima facie 177 ; 5 B. & Ad. 904. (Hiring a hiring at will. Wood, 272. of a warehou-seman, wages payable (b) Story on Contracts, s. 1290. monthly.) Bccston v. Collycr {IS27), (c) Huttman \. Boulnois, see note 4 Ring. 309; 12 Moore, 552; 2 C. («\ & P. ' 607 : (hiring of a clerk at 1G8 TIIK LAW OF MASTER AND SERVANT. all kinds of servants (d). It exists whether a contract be in writing or not (e), and even if it be conditional (/). This presumption is not irrebuttable (g) ; it may be dis- placed by stipulations in the contract as to times of payment, or by other circumstances. It does not exist when there really is no hiring or agreement to retain. Thus, in Bayley V. liimmell(Ji), the plaintiff served the defendant as as- sistant surgeon for nearly half a year without a specific contract of hiring ; and had been paid various sums at no fixed periods. He fell ill and did not return to his employ- ment. In an action by the plaintiff for remuneration, on behalf of the defendant it was contended that he could not recover anything, as tlie hiring was for a year. But the Court decided that the plaintiff might re- cover on a quantiiin onentit for the services which he had actually performed. lu practice the presumption is no sure guide. No precise rules on the subject can be laid down ; each case must be considered by itself. The following considerations, however, may be useful as guides : (1.) The circumstance that payment of wages takes place weekly or monthly is strongly in favour of the vicAv that a hiring is for a week or a month ; if this circumstance stand by itself, it will be conclusive as to the duration of the con- tract (i). (2.) This fact may be modified by others, as was pointed out in Davis v. Marshall (Jc). Yearly servants often stipulate for the payment cf their wages at short intervals ; and an arrangement to pay weekly or monthly may be merely for the convenience of a yearly servant. (3.) The nature of {(l) Lillcy V. £';»irt (1848), 11 Q. (. & C. 114. grounds in order, to assist in the See Appendix. stables, and to make himself generally (j:?) Sec note (rt) ; so Parke, B., iu useful.) NicoU v. Gmar,s (1864), Ttmvcry. Mason {\Mb),li^l. k\\. 17 C. B. N. S. 27; 10 Jur. X. v«!. 112. 919 ; 33 L. J. C. P. 259 ; 12 W. R. (r) Menial — Noidan v. Jhlctt 961 ; 10 L. T. K. S. 531. (A hunts- (1835), 2 C. M. &, Iv. 54 ; 1 Gale, man a menial servant, thougli liired 72; 5 Tyr. 709. (A head gardener for a year.) Xor Menial — Toddx. -with several under gardeners subject Kcrri'ch (1853), S P^x. 151 ; 17 Jur. 170 THK LAW OF MASTEK AND SERVANT. The question is one of extreme difficulty, especially when the situation of the servant is of a novel kind. The cases cited below show tliat living in the master's house is not a decisive test. If the nature of the service bring a person into close and frequent contact with his master, where, to quote Erie, C.J., in Nicoll v. Greaves (s), " the service is of such a domestic nature as to require the servant to be frequently about his master's person, or as in the case of the gardener about his grounds," the servant is generally con- sidered a domestic or menial servant. Having regard, how- ever, to the common use of the Avord " menial," and also to the judgment of the Court in Todd v. Kerrich (t), only servants holding an inferior situation in a household would be regarded as menial servants. No clear rule as to length of notice to be given to servants other than menial or domestic servants exists. The custom above stated does not apply to trade servants or servants in husbandry (u), clerks (x), newspaper reporters (?/), or governesses {<(). The question of duration of agreements is often one of con- struction of the agreement of hiring. In an Irish case decided in 18C1, where the agreement was, " I agree to serve Major B. as steward from May 81st, 1858, for £80 per annum, &c., three months' notice required on each side," it was held that tlie hiring was a yearly one, subject to be determined by either party by giving three months' notice before the end of the year (h). In Down v. Finto (c), the defendants, who had established smelting works in Spain, offered to employ the plaintiff as foreman, on the following terms : " I should require lit); 22].. J. Ex. 1. (A ^'ovenicss (a) Lillaj \. Jilwin {IS4S), 11 Q. iiif,'agi!(l at yt'iirly salary.) Tlic IJ. 742. iiioiitli'.s waf(('s are for a calendar (.'■) JSccMnn v. Collycr (1827), 4 moiitli, and do not include board I'iiig- ^'''J ; JIuUman v. Boulnois \vag(;.s. Hill, .!.. in Gordon v. Putter (1826), 2 0. & T. TilO. (]8o9), 1 V. k V. ()44. As to ety- (//) WilliamH \. JhjrnciUZI),! X. inoloiiy of "nionial," set; Nowlan v. k K. 177 ; 1 .hir. r>78. ./We/?, and Littn'''.s Oictionary, under (a) Twld y. Kerrich (1853), 8 Ex. In-ad of Millie. ir>l. (.v) Sec note (r). {'') Fon/an\. Ri(rkr,V2 Ir. C. L.495. (0 See note (/•). • ; ('■) (1854), 9 Ex. 327. DURA'I'ION OF TIIK CDNTKACT. 171 you to cuter into an engagement to remain Avitli me for at least three years, at my option. Salary, £2.')() per annum." The Court thought that there was a yearly hiring, and that " at my option," did not enable the plaintiff to ter- minate the agreement at any time. " These words mean that the defendants are to have the option of saying whether the service shall continue for one, two, or three years." In Broirn v. Sijrnons (d), there was an agreement to employ the defendant as a commercial traveller at a yearly salary, which was payable quarterly ; the agreement to " be binding between the parties for twelve months certain from the date hereof, and continue from time to time until three months' notice in writing be given by either party to determine the same." Transposing the words the Court read the agreement as if it ran thus : " This agreement to continue from time to time until three months' notice, &c., but to be binding between the said parties for twelve months certain." It was an agreement for twelve months certain and no more. In Farher v. Ibbetson (e), there was an agree- ment in writing to serve as agent or representative of a manufacturer of woollen and mohair cloths, at a salary of £150 a year, and a proviso that if at the end of the year the plaintiff had done sufficient business the defendant wo\ild make up his salary to £180. It Avas held that there was nothing in the contract to exclude an usage to ter- minate it by either party giving a month's notice. This matter is often provided for by regulations of the factory, mine, or workshop in which workmen are em- ployed. When the contract is silent as to this point, the period of notice or warning is to be governed by the usage or the custom of the trade, profession, or business. Where both custom and contract are silent as to this, it will be for a jury to say what is reasonable in all the circumstances. {d) (I860), 8 C. B. N. S. 208 ; 29 L. J. C. P. 236. On the other hand, L. J. C. P. 251. see Pefn-y. StavcUy (1866), 15 L. T. (c) (1858), 4 C. B. X. S. 346 ; 27 X. S. 275. 172 THE LAW OF MASTER AND SERVANT. Thus in Jliscoxy.Batchellor(g), and Foxcdl v. International Land Credit Co. (h), Byles, J., left it to the jury to say what was reasonable notice in the case of an advertising agent and a clerk. In Creen v. Wright (/), the contract gave the defendants, Avho were owners of a ship, power to dismiss a master abroad Avithout notice. The Court refused to hold that a like right existed when the master was in this country. "He was entitled to some, and that is, to reasonable notice." (g) (1867), 15 L. T. N. S. 543. (h) (1867), 16 L. T. N. S. 637. (0 (1876), L. 1!. 1 C. P. D. 591. The Courts have sometimes refused to follow the analogy of notices for the expiration of tenancies, which must be given so as to terminate at the end of t h e current year. Thu s in Mi/an v. Jenkinson (1855), 25 L. J. (J. B. H, a schoolmaster was a|ipointcd, "at the rate of £55 per annum." His appointment was to be subject to termination by three montlis' notice from either partj'. The Court thought that the notice need not be given so as to terminate at the end of a current year. In Berston. v. CuJbjer (1827), 4 Bing. 309, the Court refused to say whctli'ir the rule as to notice in case of tenancies was to be engrafted on contiacts for the hire of servants. In Kcin V. Hart (1868), 2 I. R. C. L. 138 ; 3 1. R. C. L. 388, the Court had before it an agreement in which the words were, "This agreement shall stand good for tlie term of six months, and six mouths' notice from either side shall terminate the agreement." The Judges thought that the agreement was capable of being terminated by a six months' notice, expiring Jit any time after first six months. The -same case may be consulted as to what words constitute a notice. See further as to notice, Fawcdt v. Casli (1834), 5 P>. & Ad. 904 ; WilUams v. Bynir (1837), 2K. & P. 139 ; 7 A. .t E. 177 (newspaper reporter) ; Brv.rliam v. Wuf/staflc (1841), 5 Jur. 845 (chemist's assistant) ; Turner v. Mason (1845), 14 U. k W. 112 ; Jfcfziicr v. BoUwi (1854), 9 Ex. 518 (commercial traveller). APPENDIX A. Yearly Hiring. Bex V. HtochhriiUje (1773), Bur. S. C. 759. Postilion .served lor a year ; iiotliing said as to wages ; yearly- luring. Hex V. Macclesfield (1789), 3 T. R, 76. S-rvaut hired for eleven months at 10 guineas ; at the ex- piration of the time told by his master " You may as well stay on an end in your place;" servant assented ; second agreement a KoT Yearly Hiring. Bex V. l^'(//irt//( (17G9),Bur.S. C. (!r)3. Glazier hired at the Avages of (js. a week ; suuiiuer and winter. ]ux V. Neirtmi To)icii (IISS), '2, T. K. 453. Oetler hired'" at 4.s-. 6d. a week ; " wceklv hiring. ii't.-c V. Udiham (1788), 2 T. R. G22. Service for a year at so much a week without fixing any time of service ; no ycarlv hiring. Jicx V. St. J'etcrs (17G3), Bur. DURATION OF THE CONTRACT. 17:J Yearly Hiring. general liiriiig. Rex V. i>caton (1784), Cald. 440. Wages payable weekly ; i)roinise to stay another year. Rex V. Hirdbrooke (1791), 4 T. R. 245. Labourer agrees to serve farmer " at 3.s'. per week the year round." Rex V. JLanprcston (1791), ") T. R. 20"). Serve at so niueli a week with liberty to irdvt on a month's notice. Rix V. L;ith (1793), 5 T. R. 327. A husbandman served for a year ; strong evidence of hiring for a year. Rex V. Long WhaWm (1793), 5 T. R. 447. Service with the same master for three years evidence of hiring for a year, though servant at first hired only for part of a vear. See also Rex\. //n/f.s (1794), 5 T. R. 668; Rex v. JFor/a'W (1794), 5 T. R. 506. Rex V. Pendleton (1812), 15 East, 449. Hiring for a year presumed from service for three years. Rex V. Great Yarmouth (1816), 5 M. & S. 114. Hiring at weekly wages, either ]>arty to be free to part at a montli's notice ; held to be a yearly hiring, though the case stated that the servant let himself by the week. Beeston v. Colbjir {1827), 4 Bing. 309. Defendant entered jalaintiti's service as clerk in 1793 ; was paid quarterly in 1811 ; during last six years the salary was paid montlilv. Rex V. St. Martins (lS-28), \s B. & C. 674. Yearly hiring of a boots and tap-boy inferi-ed from service for three years and a quarter, and the fact that the master had retained him after the fortnight for which he had at first invited him to stav. Rex v. St. Andrew.'^ (1828), 8 B. 6 C. 679. Hiring at £1 a week with a month's notice or a mouth's wages ; vearlv hiring. St if v. Cassell (1856), 2 .Jur. N. S. 348. Contract by author to write tales for a weekly publica- NoT Yearly Hiring. S. C. 513. Hiring at so much and to part on a week's notice, not a hiring for a year, tliougli servant continued si.x years with lier master. Rex V. I'ucJchrhurch (1804), 5 East, 382. Servant hired himself in the first instance for eiglit weeks, and afterwards to tlie same master for less than a year at weekly wages ; then entered into new agreement witli same master at weekly wages, nothing said as to duration of service ; weeklvhiiing. Rex V. Mitcham (1810), "12 East, 351. Hiring at so much a week for as long time as master and servant could agree ; a weekly hiring. AV.r V. Jhdderhill (1814), 3 M. & S. 243. Servant hiretl to serve for weekly wages of -is. and board and wasliing, excejit in the harvest month, wlien wages to be 10s. (5d. ^ Rex V. St. Murij (1815), 4 M. & S. 315. Hiring at so much a week and 2 guineas for harvest ; not yearly hiring. Rex V. Rolvenden (1815), 1 M. & R. 691. Ostler hired at so much a week for the winter and so much for the summer ; weeklv hiring. Rex V Elsack (1785), 2 Bott, 203. Maidservant hired "at Is. 4'1. a week and board and lodging for so long as they should want ; " weekly hiring. R. V. JFoodhursf, (1818), 1 B. & Aid. 325. Agreement to serve from Michaelmas to Michaelmas, and tci make 70,000 bricks at a stipulated price. Rexx. Christ's Parish (1824), 3B. & C. 459. Boy entered service of farmer for meat and clothes as long as he had a mind to stop ; hiring at will. Re-c v. Warminster (1826), B. & C. 77 ; 9 D. & R. 70. Hiring at 6s. a week for winter and 9s. a week for summer, nothing being said as to duration of service; Rfx v. Ardinrjtcn (1834), 1 A. & 17-t THE LAW OF MASTER AND SERVANT. Yearly Hiring. tioii, "extending over the period of one year,'' to be paid i-'lO a week for eacli niinilier; matter to be supplied each week. Turnrr v. Jt'ohinsuii (1S3;3), ."> B. & Ad. 781). Foreman of silk manu- facturers ; wages to be " at the rate of £80* a year;" yearly liiring. Faicait V. Cu^h (1834), f. P,. & Ad. !)04. riaintitf entered the service of defendant under the following agreement : " Plaintiff engages to pay defendant £12 lOs. per month for the tirst year, and advance £10 ])er annum until the salary is £180, from the 5th of ]\Iarch, 1832 ; " contract for at least a vear. ' Douii v. Pinto (1854), 9 Ex. 327. See p. 170. Brown v. Synions (I860), 8 C. B. N. S. 208 ; 29 L. J. C. P. 251. See p. 171. J)avis v. Marshnll (1861), 4 L. T. N. S. 216 ; 9 AV. R. 520. Plaintiff, manager of a shop under an agreement by wliich he was to receive a salary of £30 payable monthly ; hiring for a year. Buchinyham v. The Sitrrcii and Hants Canal Co. (1882), 46 L. T. N. S. 885. Plaintiff appointed engineer to defendants at a salary of"£500 a year ; dismissed at a three months' notice. A yearly hiring ; plaintilf entitled to recover salary for the unexpired portion of the year. Not Yk.vrly Hirixo. E. 260. A. hired a sheplierd for a term less than a year ending Michaelmas, l!^25 ; he served for a few days after Michaelmas under no new agiei-nuMit ; master asked him if he cliose to go on with him ; wages to be the same ; A. con- tinued in SL-rvice until Lady Day, 1826 ; no vearlv hiring. Baxter v. X'nr.^c (1843), 1 C. & K. 10 ; (1844) 6 M. & G. 938. Action by editor of " Pcdytechnic Review '' for wrongful dismissal ; evidence that by general usage editors, sub - editors, reporters, and other peisons regularly em- ]il()ved on newspapers are em- ployed for a year ; jury fouiul that the' usage did not apply to the " Polyte'chnic Review," which was a new ]mblication ; application for new trial refused. Hokroft V. L''n-/)er(1843), 1 C.& K. 4. Action fiu- wrongfully dis- missing an editor ; evidence that any person permanently employed (not occasionally only), whether as editor, sub-editor, or reporter, to supply a particular department of a news]>aper, is to be ])resruued to be hired for a year ; the jury found for the defendant. ButterfieU v. Markr (1851), 3 C. & K. 163. Plaintiff, commission agent, acting for defendants ; ]u-oof that for more than a year he had reiulered his accounts. Blachrdl v. I'cnnant (1852), 9 Hare, 551. Servant paid weekly wages though irregularly ; not yearlv hiring. Fairman v. Ouhford (1860), 5 H. & N. 635 ; 29 L. J. Ex. 459. Plaintilf, a clerk of ship broker, Mi defendant's service, receiving a month's wages instead of notice ; 8ubset|uently entered the de- fendant's service at a yearly salary of £250 ; nothing expressly said as to notice <>r duration of service ; plaintilf paid weekly. Judge left It to the jury to say whether there was a hiring for a year, telling DURATION OF THE CONTRACT. 175 Yearly Hiring. Lamfton v. Carldon (l.s73), '.) L. R. Ex. 57 ; 43 L. J. E.\. 54 ; 29 L. T. (ioO. At^n'i'iueut Ijetwceu plaintiU's and det'eutlaut ; latter en- gaged at salary i)f i;2()0 a year payable fortnightly ; the agree- ment between the parties to be ft)r twelve months certain, after which time either jiarty to be at liberty to terminate the agreement by giving the other a three months' notice ; and alter twelve months or before any notice shall have ex- pired, plaintiffs may do so on pay- ment to defendant of £50. — Bram- well, B., and Pigott, B. held that it was an agreement to expire without notice at end of twelve months, and then to continue, if the parties so pleased, until terminated by three months' notice. Kelly, C. B., thought the contract contem- plated a continuance of service beyond the three months. Not Ykarly TIirinc;. them, according to the report in the Lav) Journal, that, except in the case of menial servants, there ■was n(j inilexiljle rule that a general hiring is for a year. The jury fouml no contract for a year, and the C(jurt refused to say that there was misdirection, or that the verdict was against the weight <>f eviilence. llohm-ti^nii V. .Tenner (1807), 15 L. T. N. 8. 514. Hiring at 2 guineas a week for a year is hiring by the Aveek and not bv the vear. A'm)*.s V. 7iV (1872), L. R. 7 C. P. 138. Plaintiff entered service of defendants under a memorandum which, ni?cr«ZiVf,said," April 13th, 1871. I hereby agreee to accept the situation as foreman, &c., on my receiving a salary of £2 per week and house to live in from the 19th of April, 1871.'' Weekly hiring, and no evidence of con- versation at the time of signing with a view to show yearly con- tract intended, was admissible. See Znrhor.^t v. Millincrnd- Dress Associatwn, Times, Feb. 25, 1882. CHAPTER XV. master's duty to indemnify. A MASTER is boiind to indemnify his servant for all expenses or loss incurred or sustained, in obeying his laAA'ful orders. No express contract of indemnity is required; the law will presume from the relation of master and servant — as in fact from any other contract of agency — an obligation to hold the latter harmless from the consequences of obedience to the lawful orders of the former (a). The first important exception to the rule is that a promise, expressed or implied, to indemnify a servant against the con- sequences of violation of a statute, or a felony or misde- meanour, or a manifest civil wrong, is of no effect. Thus a promise to indemnify a printer against the consequences of publishing a libel (/>), or to indemnify a police constable for suffering a prisoner to escape (c), or for an assault (cZ), (a) Story on Agency, s. 339 ; bveacli of the law, the (h^feudant Wharton on Agency, s. 340 ; Dif,'. promised to save the phiintili' harm- Lib. 26, 18. Tothier (Mandat, less?" Tindal, C. J.) Colbuiii v. Chap. IV., s. I., A. I.) says of Fatmore (1834), Cr. M. & K. 173. " r/ol)ligation de rembourser le (Action by proprietor of a paper mandatairc :"" Ponr qu'il y ait lien against an editor for pnblishing a h cette obligation, il fant 1'^ que lo libel, for whicli jdaintilf was con- niandataire ait dobourse quuhjiie victed and lined ; the judges indi- cliose ; "2" qu'il I'ait debonrse ex catcd their opinion that a ]>roprietor causa niandati ; 3° qu'il I'ait de- couKl not recover against tlie editor bourse sans faute, inculpabilitei." tlie thmiages sustained by such con- {b) Sliackcll V. Mosicr (183(5), 2 vietion.) Bing. N. C. 634. ("The plaintilf, (c) Feathcrslonc v. Hutchinson, at tlie request of the defendant, had Cro. Eliz. 199. puldished the libel; that is, liad (d) AUcnv. Itcscons, 2 Lev. 174; coMunitteil an indictable olfence. /^rt^/n-.w/'.f Case (20 James I. ), Winch Wliat is that but saying tliat, in eon- 48, and Parchrothn- v. y/«.'(/(7/(1808), sideration that tlu' plaintilf and de- 1 Camp. 344 ; said by Story (Agency, I'endant had combined to commit a 339) to be overruled. master's duty to indemnify. ]77 would be void. In all such cases the principle that there is no contribution between tort-feasors or wrong-doers npplies. Where, however, an act is not palpably illegal, and is done honestly, in discharge of the directions of the master ; where a servant does not know, and has no reasonable ground for believing, that that which he did was wrongful ; where he had a right to suppose that the orders which he obeyed were lawfully given, the servant will be entitled to indemnity, even though his acts have injured others. His duty is, in general, to obey ; it would be wholly unreasonable to deprive him of indemnity, where the orders are not on the face of them unlawful. The principle that at law joint trespassers cannot sue inter se for contribution, must in fairness be limited to cases where the servant could know that he was doing wrong. The older authorities may not support this view, but many decisions, such as Adamson v. Jarvls (e), and Humphry s v. Pratt (/), show that a principal who employs another to do an act, apparently lawful, undertakes to indem- nify him against all the consequences. " The rule that wrong- doers cannot have redress or contribution against each other," says Best, C. J. in the former case(^), "is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act." No distinction between 'inalLim in se and inaluin pro- hibitum exists in this point of view. A servant can no (e) (1827) 4 Biiig. 66. Plaintiff, undertakes to indemnify liim for all an auctioneer, sold cattle wliicli were sucli acts as would be lawful if the not the propertj' of the defendant, in employer had the authority he pre- whose possession they were, and who tends to have." employed him ; owner recovered (/) (1331), .5 Bli. N. S. 1.54 ; 2 judgment against the plaintiff for Dow&Clark, 238. Plaintiff, a sheriff, selling the cattle : held that the seized cattle under a Ji. fa,, given by plaintilf was entitled to be indemni- defendant ; owner recovered damages tied by the defendant. Best, C.J., again.st plaintilf : held tlie plaintiff stated the rule thus : " Every man was entitled to indemnity from the who employs another to do an act defendant. See /'^(wr v. iZocy (1871), which the employer appears to have 19 W. R. 916. right to authorise him to do, (y) p. 73. 178 THE LAW OF MASTER ANO SERVANT. more recover indemnity for contravening a statute than com- mittinir a crime at Common Law : it is clear that a servant could not recover expenses incurred in smuggling goods m pursuance of the orders of his master, any more than he could recover the expenses of carrying out a conspiracy to effect a felony. No right to indemnity will exist in respect of losses or expenses caused by the servant's failure to comply with orders or by reason of his exceeding them. A servant can, of course, claim indemnity only for the losses which are directly due to the execution of his employer's orders. As to this point, in the Civil Law, nice distinctions are drawn (h). It is enough for our purpose to say that indemnity cannot be legally claimed for merely collateral losses (i). In a subsequent chapter, in dealing with the duties of a master to his servant, it will be pointed out that the latter is entitled to indemnity for losses due to the Avant of skill or negligence on the part of the former. It has been said that " as to servants doing an act in obedience to the master's orders, knowing the act to be un- lawful, the rule, as to parties in pari delicto does not apply with that strictness that is given to it in cases where the party is not in any measure subject to the control of the other (A;)." The authorities for this statement are Smith v. Cuf (I), Atkinson v. Denhy (m), and the class of cases, in which embarrassed debtors, who have paid sums of money to parti- cular creditors, in order to procure their assent to composi- tions, have been allowed to recover what they have so paid. Particular expressions used by Ellenborough, C. J. and Cockburn, C. J. in these cases, are wide enough to warrant the statement which we have quoted. When servants (h) Pothier, Chap. III., sec. 2. (0 (1817), 6 M. & S. 160. (i) Dip. L. XVII. tit. 1, 1. 26 s. 6. (VI) (1S62), 7 U. k N. 9'M ; 8 Jur. (k) Wood, Master aiul Servant, ]>. N. S. 1012 ; 31 L. J. Ex. 362. 397. master's duty to indemnify. 17!) execute illegal orders through fear of dismissal, there is, to quote the language of the former, " Oppression on the one side, and obedience on the other." No decision, however. has gone so far as to say that a servant may claim indemnity for the consequences of obeying illegal orders through fear of losing- his place. k2 CHAPTER XVI. master's duty to provide sustenance. It is the duty of a master to provide his (domestic) servants with wholesome and sufficient food and suit- able lodging. We read in Fitzherbert that the " keeping from the servant meat or drink is a good cause for his departure from his service " (a). At Common Law a master is not bound to furnish medical aid or medicine to his servant (/>). He is not even liable upon an implied contract or otherwise if a doctor or surgeon be called in to attend a servant who is injured in the course of his employment. But slight evidence of assent — for example, iuterfercnce on the part of the master, or the fact that he called in his own doctor — will suffice to fix him with liabilit}' (c), and he will not be permitted to de- duct the charge from the servant's wages. The position of an apprentice is different ; in sickness he is entitled to proper medical attendance and medicine () Nr.Kby v. WULsliirr (HSf)), 4 house on paying board wages ; not Doug. 284 ; ^//<:j?!sv. //«.Hwr// (1802), so a female domestic servant. '2 East, r)Or> ; Wcnnall v. Advry Graham v. Tliom-non (li<22), 1 i^. 287. (]802\ '6 B. & 1'. 217. (Plaiutiir's (r) Cooper v. Phillips (lS;n), 4 (". arm broken while driving defendant's .^ I*. TjSI ; Scllcn v. Norman {\9i2^), 4 Irani.) S<-nrvmn\. Cadell (1795), 1 C. &; P. 80. Es].. 270, is over-ruled. {d) J,', v. S„ii//i, (1837), S C. »t P. In Scotland it would seem that 153. a master may compel a male do- ('■) (3 Anne), 1 Salk. 381. master's duty to I'llOVIDE SUSTENANCP]. IHl boy was put out as apprentice was indicted for refusing to provide for him. In R v. Friend (/), a girl of thirteen or fourteen had been apprenticed to the prisoner. He and his wife were mdicted for having refused and neglected to supply sufficient meat, drink, wearing apparel, bedding, &c. At a meeting of all the Judges, except Lord Kenyon and Mr. Justice Rooke, the opinion was expressed (Mr. Justice Chanibro dissenting) that it was " an indictable offence, as a misdemeanour, to refuse or neglect to provide sufficient food bedding, &c., to any infant of temler years, unable to pro- vide for and take care of itself (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." In the subsequent case of R. v. Ridleij {g), Mr. Justice Lawrence confined the liability to the case of children of tender years and under the dominion of the defendant. Tlie defects of the law having been revealed in the case of the Sloanes in 1851, the 14 & lo Vict. c. 11, was passed. The whole of this Act, with the exception of sections 3, 4, 5, 8 and 9, was repealed by 24 & 25 Vict. c. 95. Under section 3 a register is to be kept of young persons under the age of sixteen hired or taken as servants from any work- house. Under section 4 such young persons hired from work- houses or bound out as pauper apprentices are to be visited periodically by the relieving officer. The 24 & 25 Vict. c. 100, s. 2() (Offences Against the Person Act, 18G1) says : — "Whosoever, Leing legally liable, either as a master or mistress, to provide for any apprentice or servant necessary food, clothing, or lodg- ing, shall wilfully and without lawful excuse refuse or neglect to provide the same, or shaU unlawfully and maliciously do or cause to be done any bodily harm to any such apprentice or servant, so that the life ot such apprentice or servant shall be endangered, or the health of such apprentice or servant shall have been or shall be likely to be per- manently injured, shall be guilty of a misdemeanor, and being convicted (/) (1802), Russ. & Ky. 22 ; p. 181. Stephen's Digest of Criminal Law, (g) (1811), 2 Camp. 650. 182 THE LAW OF MASTER AND SERVANT. (lu'rcdl' shall be liable, at the discretion of the Court, tu be ke])t in penal servitude for the term of three years, or to be imprisoned for any tenn not exceeding two years, with or without hard lalxmr "(/(). Section 6 of the Conspiracy and Protection of Property Act, 1875 (88 &; 39 Vict. c. 86), makes it an offence punisliable on summary conviction to wilfully and without lawful excuse refuse or neglect to provide, when one is legally liable to do so, a servant or apprentice with necessary food, clothing, &c. (i). [h) See also 31 k 32 Yict. c. 122, ss. 221 to 231, and 30 & 31 Vict. c. s. 37. 124, s. 4 ; and as to sailor suing (i) Part II. Chap. XIII. As to duties owners for not su])])lyiiig uipdiciuc, of owner to provide food, medicine. Couch v. t^ter.l (18.'')4, 3 E. & B. 402 ; &c., to seamen, see 17&18Vict.c. 104, 23 L. J. Q. B. 121. CHAPTER XVII. Master's duty to teach tuaue. It is the duty of a iiiastor to teach liis apprcntico the trade or profession to which he has been apprenticed. This follows fioui the very nature of apprenticeship. It is in fact stipulated for in every indenture. Where two partners agreed to teach an apprentice his trade and one of them retired from the business, it was held that there was a breach of the agreement (a). It is a breach of a contract of apprenticeship for a master who has covenanted to teach three trades to cease to carry on one of them ; and the apprentice may refuse to continue serving (h). In Scotland it has been held that if a master did not teach the apprentice his whole trade and mystery — for example, if a stonemason taught his apprentice only to hew stones— the contract might be annulled (c). It is an answer to an action by the father on the covenants of an indenture for not teaching that the apprentice absented himself, and thereby became incapacitated from serving as an apprentice {(/). (a) Couch man v. SiUaj- (1870), 22 smuggler, and that he seldom at- L. T. N. S. 480 ; 18 W. R. 757. tended tlie shop, and took no care to {b) EUcti V. Top}} (1851), 6 Ex. instruct the apprentice. The rele- 424 ; Batty v. J/on^•s(1864), 12 L. T. vancy of this (Jefence was not denied, N. S. 832. but the Court thought it " not proved (c) James v. Carswclls, 7th July that the apprentice was deprived of (1794); Campbell's edition of Eraser's daily instruction by reason of the Master and Servant, p. 360, where casual absence of the master." reference is made to a curious case, {d) Hughes v. Hamphrajs (1827), Gardner v. Smith, in which an ap- 6 B. & C. 680; 9 1). . 5()2. Sec, however, Derby v. IJumhcr (g) Whincupv.JIughcs (1871), I.. \i. (I8G7), L. IJ. 2 C. r.'247, ami s. 6, 6 C. P. 78 ; 40 L. J. V. P. 104 ; 24 sub-.s. 2, ol' Kiliplovors iuul Work- L. T. N. S. 76; 19 W. P. 43'J ; J^cbb men Aet, 1875 (38 & 39 Vict. c. V. England (18CU), 29 Beav. 44 ; 7 90). CHAPTER XVIII. master's duty in regard to servant's character. A MASTER is not obliged to give his servant a character. Should a master, in giving a servant a character, state that which A^ould be jjrimd facie libellous or slanderous, no action, in the absence of malice, will lie. It matters not how ranch the servant is entitled to a character in fairness, and how cruel the refusal may be ; it has not been disputed since the ruling of Lord Kenyon in 1800 in Carrol v. Bird (a) that a servant cannot sue his master because the latter does not give him a character. The above immunity does not arise out of any peculiarity in the relation of master and servant (b). It is one of a large class of exceptions instituted in the interests of society. It is a particular application of a general principle, viz., that a communication made bond Jide upon any subject matter in which the party communicating has an interest, or in reference to which he has, or honestly believes that he has a duty, is privileged if made to a person having a corresponding («.) 3 Esp., 201. See also Handlcy v. Mofatt (1872), 7 Ir. W. C. L. 104. (The 2 Geo. I. c. 17, s. 4, requires a nia.ster to give a certificate of disohiirgc, and, in case of refusal, the servant may a])ply to a justice : held that the statutory remedy was exclusive, and that no action for refusing certiUcate lay against the master.) (b) Eric, J., in Cojhcad v. Richards, (1846), 15 L. J. C. V. 273 ; 10 Jur. 984 ; 2 C. B. 569. The origin of the exemption may, however, have some- thing to do with the testimonials retjuired by the 5 Eliz, c. 4, s. 10, to be given to servants. 18G THE LAW OF MASTER AND SEKVAXT. interest or duty (c). The master's privilege is but an appli- cation of the general rule which shielded a person who wrote a letter to his mother-in-law containing defamatory statements respecting a person whom she Avas about to marry (d) ; a person who, bond Jide heliew'mg that the plaintiff had stolen a box from the shop of the defendant's master, went to his master and said, " There was no one else in the room, and he must have taken it(e);" one who inserted a libel of the plaintiff in a correspondence with plaintiff's friend which was begun with the plaintiff's concurrence in order to investigate certain charges against him {) — though that is not always conclusive — or Clifton (1803), 3 B. & p. 587 ; Den man, C.J., in Fountain v. Iktodle (1842), 3 (,). 15. 5. A letter written in answer to incjuiries about a servant is not privileged in the sense that it is protected from discovery, witliout the person wlio refuses to pi'oduee it pledging his oath that it will tend to criminate him : IVchb v. Eust (1880), L. K. 5 Ex. V>. 108. (I) Bayley, J.'s, definition of malice in Bromaqev. Protiscr (1825), 4 B. & C. at p. 255. (??!.) There "must be something that is consistent only witli a desire to injure the plaintiff, tojustifya judge in leaving the question of malice to the jury." Jervis, C. J., in If arria v. Thomjjson, see note (n), citing -So/hy'/-- ville V. Ilawl-iihi (1851), 10 cCB. 583 ; 20 L. J. C. P. 131 ; 15 Jur. 450. Kcl/i/ V. Partington (1833), 2 N. & M. 460, is sometimes quoted as an authority for the statement that " Slight evidence is sufficient in these cases to ■warrant the jury in finding malice." It i-s sulmiitted that the same rule as to leaving (questions to the jury applies to these a.s to other cases. (n) Fountain v. Boodle (1842), 3 Q. B. 5. (Plaintiff employed as a governess for upwards of a year, during Avhicli time she was twice recommended to other situations by defendant ; dismissed abruptly, with- out cause assigned ; lost another situation, in consequence of the de- fendant writing in answer to in(|uiry. " I parted with her on account of her incompetency, and not being ladylike? nor good-temjiered." A l)ostscript was added, " May 1 trouble you to tell her that this is the third time I have been referred to ? I beg to decline any more applications." The Judge directed the jury that the occasion was privileged ; but some proof of illwill having been adduced, and there being no evidences to tin? contrary, he held that there was a question for the jury.) Harris v. Thompson (1853), li3 C. B. 333. (Defendant, director of two com- panies, kc. ; plaintilf, an official in both ; plaintiff dismissed from an office for misconduct ; defendant com- municated the fact to the directors of the company ; and, in rejdy to the inquiries, stated that one of the reasons was, obtaining money by false pretences : privileged communica- tion. ) (o) Rorjers v. Clifton (1803), 3 B. & P. 587. (Defendant quarrelled with ])laintiti', his butlei' ; called on his former master to inform him that plaintiff had behaved in an imperti- nent manner, and to desire him not to give him another character ; being applied to by H., who wrote to him for a character, repeated the charges in a letter in strong terms : left to tln^ jury to say, looking to all the cir- cimistances, whether there was malice.) {p) Fattisonv. Jones {1S2S), 8 B. 188 THE LAW OF MASTPm AND SERVANT. that they were uttered needlessly in the presence of third parties {q), may substantiate the existence of malice, that is, a design to injure the servant. No enumeration of the cir- cumstances which may prove this, and constitute extrinsic or intrinsic evidence of malice, is possible ; the question of malice or houa fides, of proper or improper feeling, being peculiarly one for a jur3^ It is their business to say whether a master has made a letter about a servant a pre- text for expressing private spite or conveying an ill-natured and unjust insinuation, or has described faults in an exag- gerated fashion, indicating a wish to harm the servant. In modern times the courts have been disposed to give a liberal application to the rule stated above, and they have not confined privilege to cases in which communications are made to a person about to engage a servant. This is illustrated by Weatherston v. Haivkins {r). The defendant, in answer to an application made to him by E,., to whom the plaintiff was recommended, gave the plaintiff a bad character. The brother-in-law of the plaintiff having re- peatedly called on the defendant with reference to the subject, the defendant sent him a letter containing specific charges of fraud ; it was held that this was a privileged communication as being incidental to the application for a character. This species of privilege, it is said, extends even to the communica- tion of facts Avhich were unknown to a master while a servant was in his employment; "the privilege lasts as long as any thing- is discovered before unknown to the master." It will cover communications respecting the conduct of a servant after he & C. 578 ; 3 M. & R. 101. (Master Linrrii v. Aikcnhcad, Folkanl'.s wrote first letter about a servant's Starki<', p. '2.53, must be taken with misconduct, without having heen ap- reservation. ])iie(lto, and wrote a second in an.swer {q) Taylor v. Hawkins (1851), It! to inquiries : held that tliere was Q. li. 308 ; 20 L. J. (.). B. 313 ; 15 evidence of" malice.) IJaylev, -1., Jur. 746 ; Manbi/ v. JFitt (185(i), pointed out that there might be 18 (.:. B. 544 ; 25 L. J. C. P. 294 ; occasions on which eonimunications, 2 Jur. N. S. 1004 ; Tootjoad v. Sj>y/-- though nn.solicited, would be privi- imj (1834), 1 (". ^I. .t I>. 181 ;" 3 legcd. See also Coltman, .1., in L. .1. Kx. 347. Coxhcadv. Richards {\U^), 2 C. B. (r) (178(5), 1 T. K. 110. p. 601. Lord Mansfield's ruling in master's duty as to servant's f'HARAf.'TER, ] S9 has quitted a master's employment. When a master wrote in answer to inquiries " nothing can be in justice said in her favour," and that " she (defendant) has, since her dismissal, been credibly informed she (plaintiff) has been and now is a prostitute at Bury," it Avas held, in the absence of any evidence of the falsehood of the statement, that the letter was privileged (s). A mutual insurance society for shipping may, in order to pi'otect its interests, communicate to the owner of a vessel that if he gives the command to a certain person whom they believe guilty of drunkenness, tliey will decline to continue to insure the vessel. If made in good faith and without malice towards the plaintiff, such a communication will be privileged (f). The exact limits of the qualified privilege described in Toogood V. Spyring {u) are hard to define. Such expressions as "public and private duty," " matters where his interest is concerned," "the discharge of some duty, public, private or official, which the ordinary exigencies of society, his own private interest, or even that of another called upon him to perform," [x] arc ambiguous. It cannot be said that they are yet clearly explained by the decisions. This much, however, is certain — by duties are not to be understood merely legal duties ; they include moral and social duties of imperfect obli- gation ; the duties, for example, which neighbours owe to each (s) Child V. Afflcxl (1829), 9 B. & {t) Hamon v. Fallc (1879), L. R. 4 C. 403 ; 4 M. & K. 3.38 ; Gardner v. Ap. C. 247. Sladc (1849), 13 Q. B. 79G ; 18 L. J. («) See note (-?). Q. B. 334 : 13 Jur. 826. Db-on v. (,r) Folkard's edition of Starkie on Parsons (1858), 1 F. & F. 24. (Letter Slander, 250. See fnrtlu'V as to privi- to a person who lias given a good lege in communications respecting character to a servant which had aervnnts ; Johnson v. Uvans (ISOO), '-i procured a situation with defendant, Esp. 32 ; Cockayne v. Hodgkinson saying that the servant does (1833), 5 C. & P. 543 ; Rumseij v. not deserve the character given ; Webb (1841), C. & j\I. 104 ; Coxhead privileged.) Somervillc v. Havjkins v. Jiichards (IS46), 2 C. &. B. 569; (1851), 10 C. B. 583 ; 20 L. J. C. P. Gilpin v. Fowler (1854), 9 Ex. 615 ; 131 ; 15 .Tur. 450. (Warning by Fryer v. Kinncrsley (1863), 33 L. J. master to servants not to associate C. P. 96 ; 15 C. B. N. S. 422 ; with a dismissed servant, and state- Condes v. Potts (1865), 34 L. .T. Q. B. ment of cause of dismissal ; privi- 248. leged. ) 190 THE LAW OF MASTER AND SERVANT. other, and wliich solicitors owe in vindication of the cliaracter of their clients (y). An action Avill lie against a person who makes a false and fraudulent statement with respect to the character of a servant (s). The uttering of a forged character or testimonial is an offence at common law. Tims Avhen a person had forged and uttered a document purporting to be a testimonial by a clergy- man, and recommending him for the situation of a school- master, he was properly convicted of a misdemeanour at com- mon law («). (i/) }T(trrL'iO)i v. Bush (ISo.")), 5 396. E. & B. 344. {a) R. v. Sharman. (1854), Dears. (z) IVilkiav. Rrid{lS5 i), 15 C. B. 285. See 32 Geo. III. c. 56, ami 192 ; Foster v. Charles (IS-iO), 6 Bing. Part II., Chapter III. CHAPTER XIX. MEASURE OF DAMAGES. A SERVANT who is discharged improperly or without due notice is entitled to recover such damages as a jury thinks compensation for the actual loss which he has sustained. Sometimes the master and servant agree as to the terms on which they shall be at liberty to terminate the contract. If it be agreed that they may determine the engagement on a month's notice, the servant can recover only a month's wages in the event of his being improperly discharged (a). A servant who is dismissed is bound to make reasonable exer- tion and show dihgence in endeavouring to procure employ- ment. It is deemed contrary to public policy that he sliould remain idle. He must seek for employment and accept it if it be offered. The true measure of damages is therefore not the amount of Avages which he was promised under the agree- ment, but his probable loss. This will be his wages less the value of any place which he has obtained, or might have got by reasonable exertions. Mr. Justice Willes, in Hartland v, Tlte General Exchange Bank (h), told the jury that in estimating the damages due to the plaintiff — the manager of a banking company — who had been engaged for a term of three years, and who had been dismissed at the end of four months, (a) Uarilr.i/ V. ITarman (1840), 11 burn, J., in Sou-don v. Mills (1861), A. k E. 798 ; see Gordon, v. Fotlcr 30 I.. J. Q. B. 176 ; Emmcns v. (1859), 1 F. & F. 644. Eldcrton (1853), 13 C. B. 508 ; [h) (1866), 14 L. T. N. S. 863; Speck v. Fhillips {1SZ9), 5 M. & W. see also statement of law by Black- 283. 192 TIIK LAW OF MASTER AND SERVANT. tlicy should take liis salary into account ; that they were not to give him the whole of his salary for the three years ; but that they were to take into account tlie probability of his obtaining other employment. The rule was thus expressed by Erie, J., in Beckham v. Drahe{c): "The measure of damages for the breach of promise now in question is obtained by considering what is the usual rate of wages for the employ- ment here contracted for, and what time would be lost before a similar employment could be obtained. The law considers that employment in any ordinary branch of industry can be obtained by a person competent for the place, and that the usual rate of wages for such employment can be proved, and that when a promise for continuing employment is broken by the master, it is the duty of the servant to use diligence to find other employment." The damages awarded must not be too remote. A sea- man who had left his ship at Rio because he refused to take part in an illegal voyage, and who was committed to prison by the Brazilian Government as a deserter, was held entitled to recover loss of wages under his contract. But a claim for a loss of clothes, which had been carried away in the ship, was disallowed (<1). In another case the facts were these : The plaintiff was engaged as manager of a mining- company in South America for three years. The directors were at liberty to dissolve the agreement at any time on giving him twelve months' notice, or in lieu of svich notice paying him twelve months' salary and his reasonable expenses in returning to England. If he served three years he was to be entitled to the expenses of the return of himself and his family. He was dismissed with- out notice or receiving a year's salary. The jury gave him a (c) (1849) 2 H. of L. at p. 606 ; McUis (1824), 2 liiiig. 229. Smith V. Thompson (1849), 8 C. H. (d) Burton v. Finkcrton (1867). 2 44 ; (clerk liiieil for two years ; wioiif^- L. K. Ex. 340; 36 L. J. E.\. 137; fully (lisiiii.s.sed after about one 17 L. T. N. S. 1;".. Ross v. Pender, (luartor'.s service ; jury awarded one .Tan. 1874, 1 K. 3.12 (loss of gratui- year's salary ; Court refused to disturl) ties not to bo considered in estinuU- the verdict) ; Goodman v. I'ococh ing damages). (1850), 15 (j. B. 570 ; Richardson v. MEASURE OF DAMAGES. ] f)3 year's salary from the date of dismissal and Iiis own expenses in returninjr to Enflfland. The Court refused to add to the damages the expenses incurred in the return of his family or the amount of his salary to the end of the third year (e). Though it is the duty of a servant who is discharged to seek employment, it appears that the onus rests with the person who denies his right to receive his wages in full to show that he could have obtained employment (/). When it is said that a servant should diligently look for employment, it is not meant that a clerk should be ready to become a ploughman or a navvy, or that a farm bailiff sliould be ready to undertake the work of a ploughman. This is illustrated by a Scotch case, Ross v. Pender (y). The plaintiff, Avho had been employed as head gamekeeper, Avas dismissed, but he was offered the same wages and the post of assistant gamekeeper. The Court held that he was not bound to accept the subordinate situation. " I think," said the Lord President, "it is sufficient for the disposal of the defence to show how the employment offered him if he would return was wholly different from his former one as head keeper." A servant wlio is improperly dismissed, or Avliom the master refuses to take into his service, may at once sue for damages. He may also in the former case recover the value of services actually performed. In other words, the servant may treat the contract as at an end and rescinded, and sue on a qiianiiiin rneruit for his (e) French v. Brookes (1830), 6 prospective reimincration in wiuiling Bing. 354 ; 4 M. & P. 11 ; Noblr v. up of oompaiiios. YcUaiul's f'asc Allies Manufadurinrj Co., 112 Mass. (1876), I>. K. 4 Etj. 3.'>() ; Clark's Case 492. (Plaintiff, who had come from (1869), L. E. 7 Eq. 5.50 ; 38 L..T. Ch. the Sandwich Ishinds to Massachus- 562 ; 20 L. T. N. S. 774 ; Ex parte setts, could not recover in an action Machirt (1870), L. P. 5 Ch. 737 ; 39 for refusal to receive hira into service, L. J. Ch. 685 ; 23 L. T. N. S. 685 ; damages for loss of time or expenses Ex parte Logan (1870), L. R. 9 Eq. in journey.) 149; Dm n and Gillin-i's Cn,ic {IS7 2), (/) Costigan v. Mohawk Hail Road 41 L. .1. Ch. 476 ; 26 L. T. N. S. 467 ; Co., 2Denio, 609. ShirrcfFs Case {1S7 2). L. R. 14 Eq. {g) (1874) 1 R. 352. See as to 417 ; 42 L. J. Ch. 5 ; 20 ^Y. R. 966. Id4< THK LAW OF MASTKi: ANI> SKKVANT. services, or he may treat the contract as still in existence and sue on a breach of it. In the notes to Gutter v. Powell (h) another remedy is stated ; " the servant," it is said, " may wait for the termination of the period for which he was hired, and may then sue for his whole wages, in indebitatus (issumjjsit, relying on the doctrine of constructive service." This phrase is borrowed from decisions in settlement cases," and the doctrine was first suggested by Lord Ellenborough in the case of Gandcll v. Pontigny {[), an action for wages for the whole quarter by a servant wrongfully discharged before the end of the quarter. Lord Ellenborough suggested that the plaintiff might be entitled to recover on the ground that as he was "willing to serve for residue in contem- plation of law, he may be considered to have served the whole." This was followed in Smith v. Kingsford (k) and Collins V. Price (/). But since the case of Archard v. Hornor (m), decided in 1828, by Lord Tenterden, this doctrine has been questioned. In SmitJi v. Hayivard{n) the Court of Queen's Bench declared their preference for the law as laid down in Archard v. Hornor, and the same view was expressed in Fewings v. Tisdal (o). No doubt a servant who has been improperly dismissed is not bound to sue at once ; he may sue at the end of the term ; but the sum which he will recover will be calculated not on the basis of fictitious service, but the actual damages which he has sustained. Now that it is suflficient for a plaintiff to state in his statement of claim the facts upon which he relies, these decisions arc \iiiimportant {j)). A servant Avho has been improperly dismissed need not (7i) Smith's L. C. vol. ii. ]>. 3S, much as woiihl compensate liim for 5th ed. the loss of the opportunity of earn- {i) (1816) 4 Camp. 37;'). ing £50.") lie) (1836) 3 Scott, 279. McKeaiiv. (/) (1828) r> Bing. 132. (Joir/cy (1863), 7 L. T. N. S. 82S. (,/») (182_8) 3 C. k P. 340. (I'laiiitilf engaged as commission (/() (1837) 7 A. k K. 544. agi'iit, at salary of £')0 a year; en- {<>) (1847) 1 Ex. 295. gagcment to be terminated "at end of (p) Sec liarvslrj/ v. Tn>//or(1867) any year on giving three months' 32 .1. P. 229, as to efl'eet of olitaining notioe ; not entitled to receive tin; damages for improper dismissal, whole year's salary ; "entitled to so MKA.SURE OF DAMAGES. 105 wait until the expiration of the tcrni for which he engaged to serve before bringing his action. So also if his master has refused without proper reason to receive him into his service, he may at once institute an action. This was decided in Hochster v. De La Tour [q), the facts of which were as follows : A coiuier was engaged in April of l.So2 to go on a tour of three months, which were to commence on the first of June, 1852. On the 11th of May of that year the defendant wrote to say that he had changed his mind, and that he did not require the courier's services. He refused to make compensation. The courier began an action on the 22nd of May, 1852. The declaration averred that from the time of making the agreement until the time when the defendant re- fused to perform his promise and exonerated the plaintiff from performance, the plaintiff was ready and willing to perform the ao-reement. Breach that the defendant before the said 1st of June wrongfully refused to engage the plaintiff or perform his promise, and then wrongfully exonerated the plaintiff from the performance of the agreement, to the damage of the plain- tiff. The plaintiff between the commencement of the action and the 1st of June obtained another engagement on equally good terms, but not beginning until the 4th of July. On a motion in arrest of judgment. Lord Campbell said, " The man who wrongfully renounces a contract into which he has delibe- rately entered cannot justly complain if he is immediately sued for a compensation 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 prospec- tively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrong-doer. An argument against the action before the 1st of June is urged from the difficulty of calculating the damages ; but this argument is equally strong against an (q) (1853) 2 E. k B. 678 ; Danube S. 152 ; (1863) 13 C. B. N. S. 825. Ilij. Co. V. Xerws (1861), 11 C. B. N. 196 THE LAW OF MASTER AND SERVANT. action before the 1st of September, when the three months would expire. In either case, the jury in assessing the damages would be justified in looking to all that had happened, or was likely to happen, to increase or mitigate the loss of the plaintiff down to the day of trial ()•)." (r) In spite of a common opinion cuncd in goinf^ to his master's house to the contrary, it does not appear to before being engaged, or returning be the case that, in tlie absence of from it after being dismissed, Burn's any stipulation on the subject, a Justice, 5tli cd., 225, and also Head servant is entitled to expenses in- v. Dunsmoix (1840), 9 C. & P. 588. CHAPTER XX. SPECIFIC PERFORMANCE. A CONTRACT of hiring and service will not be spccifi- cally enforced. A master or servant claiming redress for the breach of such a contract will be left to sue for damages. In contracts of hiring and service the parties bargain for the personal qualities of each other. One servant is not as suitable as another, any more than one piece of land is as good as another; and at first blush it might seem that the reasons Avhich have induced Courts of Equity to decree specific performance of contracts relating to land would equally apply to contracts relating to services. In point of fact, Courts of Equity did at one time act upon this view, and the books contain more than one instance in which masters were ordered to retain in their service persons whom they had impropei'ly dismissed (a). This is, however, no longer done ; Courts refuse to interfere in order to prevent a master discharging a servant; if improperly dismissed, the latter must seek his remedy in an action for breach of contract. It is thought inadvisable to force upon a master a servant whom he does not like, and with whom he must be brought into close proximity. " We are asked," said Lord Justice Knight Bruce in Johnson v. Shreiusbary & Birmingham Bail. Co. (b) — which was a case in which the plaintiffs had contracted for (a) Ball V. Coggs (1710), 1 Bro. (6) Seenote(c), and Selborne, L.C., Par. C. 140 ; Ea^t India Co. v. Vin- in Wolverhampton and W. Ry. Co. cent(niQ), 2 Atk. 82. See Camp- v. London and N . JF. Ry. Co., L. R. bell's edition of Fraser, Master and 16 Eq. 439 ; 43 L. J. C. 133. ervant, 102. 198 HE LAW OF MASTER AXD SERVANT. a specific sum to work the defendants' line and to keep the rolling stock in repair — " to compel one person to employ aarainst 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 persons do not always agree, enormous mischief may be "done." Another reason against inter- fering, mentioned in the above case, is that there could be no " mutuality." A Court could compel a master to retain in his employment a certain servant : it could not compel the latter to perform faithfully his part of the contract, and to work diligently and skilfully (c). The difficulty of securing real performance of such a contract is too great. Hence, if the substance of an agreement be an agreement for personal service, even though it be connected with other matters, the Court will not decree specific performance (d). (c) Ficlrrlmi v. Bishop of Ely (1843), 2 Y. & C. C. C. 249. (A bill praying that the jilaintiff might he (juieted in the ottlce of receiver- general to the defendant, and that the defendant might he restrained Ironi preventing the plaintiff exercising the duties of the oflice, dismissed.) Slacker v. BrorJcclbank (IS.'il), 3 Mac. & G. 250 ; 20 L. J. Ch. 401. (Plaintiff, manager of the business of the defendants, dismissed by them for negligence ; reversing an order by Ixird Cranworth, V.C, l^ord Chancellor Truro refused to restrain the defendants from excluding ])lain- tifi" from the exercise of liis duties as manager.) Johnson v. HhreKsburij tb JJirmivrffunn Jly. Co. (1853), 3 Do G. M. & G. 914 ;'22 L. J. ("h. 921. (Agreement that jilaintilfs shuuld run and work all the trains of the com- pany, and provide foreman, me- chanics, &c. ; Lord Ju.stices Knight Bruce and Turner refused to restrain the defendants from discharging plaintiffs. ) mhb v. Enqlavd (1 8(i0), 29 Heav. 44 ; 30 L. J. Ch. 222. (Apprentice dismissed by master ; Master of the Rolls refused to cancel articles of apprenticeship, or to order a return of a portion of the i>remium.) Cliapliny. London tO North- Western lly. Co. (1862), 5 L. T. N. S. 601. (Agreement by which the ])laintiti's should collect, and deliver goods at certain stations of the defendants : "Wood, Y.C., refused to restrain the defend- ants from terminating the arrange- ment.) Ocjdcn V. Fossick [l^^Z), 32 L. J. Ch. 73. (The Lord Justices refused to enforce an agreement whereby the defendant agreed to grant the plaintiff a lease of a certain wharf, and plaintiff agreed to tinploy defendant as manager of the wliarf.) i'etow Bri(jhto)i ,\UckJirhl, tix:, lly. Co. (1863), 32 L. J. Ch. 077. aiflisw. j/cr,7(cc(1863), 13h'.Cli. 48. (Plain- tiff engaged to take management of baths ; no sjiecific ]ierformance). Mair V. Himalaya 2'ea Company (1865), L. K. 1 Eq. 411. (d) Oqdrn v. Fossick, see n. (c). While V. lioby (1877), 37 L. T. N. S. 052 : 26 Nv. IL 133. See re- marks of .lessel, M.It., in Figby v. 6'<;vi»(c//(]SS(>), L. K. 14 Ch. \). at p. 487. SPECIFIC PERFORMANCE. 199 What Courts have refused to tlo directly, they may hy injunction effect indirectly. If a contract of service contains a positive agreement to do something, and a negative agreement not to do another, or if such a negative agreement can be implied, they will restrain the breach of the negative agreement even though they arc unable to enforce the affirmative. This is a comparatively new branch of Jurisprudence. For a time the Courts occasionally refused to interfere by injunction in aid of the negative part of an agreement when they could not enforce the positive part (e). Since the decision of Lord St. Leonards in Luonley V. Wagner (/), in 1852, they have acted differently. There the defendant, a singer, agreed to sing during a certain period at the plaintiff"'s theatre. She also engaged not to sing at any other theatre or any concert without the plaintiff's written authority. Lord St. Leonards held that, though unable to compel the defendant to perform her agree- ment, he could and ought to restrain her from singing else- where than at the plaintiff"s theatre. It is apparently un- necessary that the contract should contain an express negative stijudation, if it be clear that the parties intended that the services should be exclusively given to one person (g). Courts will also interfere to restrain by injunction persons (e) Koable v. Kean (1829), 6 Dilloit (1857), 3 Jur. X. S. 432; Sim. 333 : Kimberlci/ v. Jrnnings 5 "W. K. 867 ; Fechtcr v. Mont- (1836), 6 Sim. 340. ' gomeni (1863), 33 Beav. 22. Sec (/) 1 D. G. M. & G. 604 : Willis also JDc Mattos v. Gibson (1859), 4 V. VMlcU (1851), 13 Beav. 117 D. G. & .J. 276, and Brett v. Ea^it (injunction restraining; trustees of India 7^tn^ Co. (1860), 8 H. of L. 338. Mudonna d'Idra (1811), 1 Dod. (/•) Buardman v. Sill (1809), 1 37. Camp. 410; Kniiiht v. Harrison (.c) Tlic Sudncy Covc{,\?^\^),2\)odi. \18'23), cited ill Scnrfc v. Monjan 500; T/w Batavia (1822), 2 Dod. 0838)! 4 iM. & W. at p. 279. " 500; Tlic Margaret (1862), 3 Hag. (h) Hairfe v. Morqan, at p. 279. 238. {t) Turner v. i,f«s (1855), 20 licav. (y) 17 k 18 Wet. c. 104, s. 182. 185. CHAPTER XXII. DUTIES OF SERVANTS. Servants are bound to obey the la^vfiil orders of their masters, and they may be dismissed without notice for wilful disobedience of such orders (a). The obedience wliicli is required is not limitless. A servant is not bound to obey unlawful orders. Neither is be oblio-ed to risk his safety (h). Servants may not be dismissed if they refuse to perform services of a kind U'liich they did not undertake to perform. A lady's maid cannot be expected to milk cows(c), or a farm labourer to act as a domestic servant (d). A seaman, who is engaged for one voycige, is not bound to serve for another vo}'age, the risks of which may be very different from those which he agreed to face. This is iUustrated by Burton v. Plnherton (e), which has («.) As to the general principles not desertion within 7 & 8 Vict. c. stated in the text, see Lord Abinger 112, s. 9, if a seaman quits a ship in Prifsf,ley v. Fowirr (1837), 3 M. & in consequence of the cruel treat- W. 1 ; Tamer y. Mason {lS^5), 2 J). ment by tlie master ; Ed/cards v. & L. 898 ; 14 M. & AV. 112 ; 14 L. J. TrcceUick (1854), 4 E. & R. .59 : or Ex. 311 ; Callo v. Brounckcr {\%Zl), because the provisions are insufiicient- 4 C. & P. 518. The Cast ilia {IS22), 1 Hag. 59. {h) If a servant has been misled as (c) Bell's Principles, 77. to the dangers of his employment, he (d) See Campbell's edition of may throw up his engagement; Eraser's Master and Servant, 78, where Cockburn, C. J., in JFoodlcij v. it is said : " Nor is a person hired to Mctropolllan Disirid llif. Co. (1877), manage a farm bound to otficiate L. R. 2 Ex. 1). at p. 388, and Lord as a servant of all work ; nor can Abinger in P>-iM«c?/ V. i^'oK'Zc/- (1837), a gardener be forced to work in a 3 M. k W., at p. 6; Liiiiland v. turnip-lield ; nor a grieve and over- Stcphens (1801), 3 Esp. 269. (If seer of a coalwork be compelled to a master, by inhuman treatment, assist at the windlass-wheel, and compels a sailor, for his safety, to click the coals at the pit ; nor a head quit the ship, this will not be de- gamekeeper to act a« under game- sertion, and will not cause a for- keeper."' feiture of wages. Accordingly it (c) L. E. 2 Ex. 340 ; Ross v. 206 'JIU-; LAW OF JIASTEll AND SHRVANT. been already mentioned. The plaintiff had engaged to serve for twelve months as a mariner from London to various ports in North and Sontli America, and to obey all lawful com- mands. War was declared between Spain and Peru, and a proclamation enjoining neutrality was issued by the English Government. Acting under the orders of the Peruvian Government, the captain told the crew at Rio that tbe next destination was Callao. The plaintiff" objected to serve further, on the ground that the voyage was illegal, and he left the ship. It was held that an action for breach of contract lay against the owners, inasmuch as the vessel was used for purposes which made the crew liable to more risks than were incident to an ordinary commercial voyage. The general rule, however, is, as Baron Parke stated in Turner v. Mason {f),th' 277. 9^ (1851), 2 L. M. i: P. 221 ; also (r) Bailment, sec. 429. Mercer v. IVhall (1845), 5 Q. B. (j) (1807) 1 Camp. 138. 447. (t) Ardin'j v. Lomax (1855), 24 L. DUTIES OF SERVANTS. 211 quit his master's service (z), entry by a clerk of a com- pany on the margin of a minute-book of a protest against a resohition of the directors to call a meeting to appoint his successor (a), an acting manager at the Covent Garden Theatre ridiculing and finding fault with his master's arrangements and choice of plays so as to excite discontent among the actors (/>), receiving money contrary to express orders (c), — in all these instances masters have been warranted in dismissing servants. Conduct on the part of a servant wholly inconsistent with his position as such, and showing an intention to assert another position than that which he properly has, would be good ground for discharging him. Thus, a claim to be a partner by a servant who at certain periods received a portion of the profits of a business, was held to excuse dismissal without notice {d ). For the same reasons dismissal, in cases where a master has been robbed by a servant (e), or where the latter has been guilty of some act of dishonesty towards the master, would be warranted. Such would be the case even if the (*) Turner v. Robinson, sec note (n). See as to soliciting business, Nichol V. Mart i/n (1799), 2 Es)). 732. (ft) Ridi/wai/ V. Hunqcrford Market Co. (1835)', 3 A. & E. 171. (6) Lacy v. Oshaldiston (1837), 8 0. & P. 80. (c) Bray v. C. B. 718. (d) Anioi Chamlkr (1856), 18 f'e«ron. (1839), 9 A. i: E. 548 ; 1 P. & D. 398 ; 2 W. W. .<: H. 81. Smithy. Thomji.son (IS ^9), 8 C. B. 44. (A servant ajipiopriated to payment of his own salary, wliicli ■was due, £30, part of a sum remitted to him by his master for business purposes ; left to jury to say whether plaintiff guilty of wrongful appro- priation.) Horton v. McMnrtry (1860), 5 H. & N. 667 ; 29 L. J. Ex. 260. (Plaintiff, manager of defend- ant's factory, entered into a contract Avith V. for supply of bladders, which were necessary to defendant's busi- ness ; the bladders were consigned to G., who let ])laintiff have as many as he wanted for defendant's business ; it did not appear that plaintiff ehavgi'd defendant any more than he gave for them : good ground of discharge.) £lcnkai-n v. Iludyrs' IJistillcry Co. (1867), 16 L. T. N. S. 608. (Traveller of a distillery company l)ound to remit immedi- ately all sums collected by him, sold some of the company's wines to brothel keeper, ami neglected to remit sums immediately.) Niclwl v. Martyn (1799), 2 Esp. 732. (A clerk or servant at liberty to solicit from his master's customers business to be given him after he quits his master's service ; not so in case of orders to be n-iven him while in master's service. ) * (e) Lord EUenboroiigh in Trotman V. Dunn (1815), 4 Camp. 211 ; Cunningham v. Fonblanque (1833), 6 C. & P. 44, 49 ; l^potswood v. Barrow (1850), 5 Ex. 110. 212 THE LAW DP MASTER AND SEUVANT. master sustained no loss (/), So, too, is desertion by a sea- man — that is, abandoning a ship before the end of the time for which he is engaged without just cause and without the intention of returning. The question is always one of fact. Has the servant so conducted liimsulf that it would be manifestly injurious to the interests of the master to retain him ((/). A servant (domestic) may be dismissed for gross acts of immorality. Thus a female domestic servant who, while in the service of her master, is delivered of a bastard child, may be dis- missed (h). So if a man servant debauches a female servant, both may be dismissed (/). A clerk who assaulted his master's maid servant with intent to ravish her, was held to be rightly dismissed (/,•). Habitual drunkenness, if it inter- fered with the due discharge of a servant's duties, would justify dismissal (I). The authorities are not clear as to the limitations, if any, with which the above principle must be taken. They lay it down as a general rule that gross immorality on the part of a servant will be a good reason for the master putting an end to the contract. But it is submitted that the immorality must have direct reference to (/) Brown v. Oroff (1828), 6 C. & 1 Hagg. Ail. 198. There ha.s P. 16 (n.). been a considerable amount of dis- {(/) VanKban, .1., in Larij v. Oshal- eussion in the Scotch cases as to disfon, 8 C. & P. 80. when intoxication is a ground for (A) A'. V. Brampton [lin), Cald. dismissal. Jlr. Wood .seems to indi- 11 ; Connors v. Juslic; (1862), 13 Ir. cate the true rule when he .says : C. L. 451. "Ill all .such ca.ses it is for tlie jury (i) J\. V. U'clford (1778), Cald. to .say, in view of tlie jiositiim occu- .57; but .see 7c'. V. TFe.itmron (\7Sl), pied liy the .servant and the jiartieulai' Cald. 129. circumstances, wlietlicr his discharge (k-) Alkin V. Acton (1830), 4 C. & is reasonable. A minister who should P. 208. become into.xicated on any occasion {D SlKckv. PhilUj)s{\m9),5^\. k wouLl, of cour.se, be subject to W. 279, 281 ; 7/7.svv. //7/.w»(184.'>), instant dismi.s.sal, because incon.sist- 1 C. & K. 662 ; McKrllnr v. Macfnr- ent witli liis i)osition ; but a farm liuir (1852), 15 D. 2nd Ser. 246 : labouicr or a clerk, when otf from Kilv)ard-'s v. Marbi'- (1848), 11 D. duty, upon a holiday, would not ;" 2ud Ser, 67 ; Nnn rimnix (1823), p. 212. DUTIES OF SERVANTS, 213 tlie services to be performed, so as to render them worthless or less valuable than was to be reasonably anticipated. Acts bf inmiorality on the part of a governess, a secretary, a menial servant, or other members of a household, during the time they were employed, would naturally warrant a master in discharging them ; such conduct unfits them for their place. But it is not to be supposed that a cotton manufacturer would be at liberty to discharge one of his hands without notice, or that a newspaper proprietor could dismiss a reporter because these servants had been guilty of immorality which had no relation to the duties which they were hired to per- form {m). Even as regards servants who live in a master's house, and are brought into close relationship with his family, the misconduct which will justify dismissal must occur in the course of their service ; they may not be dismissed for past misconduct. This is illustrated by Fletcher v. Krell{n). The plaintiff had engaged the defendant as governess for three years. In an action for breach of contract the defendant set up the plea that she had concealed the fact of her having been divorced from her husband. This was held a bad plea in the absence of any allegation of fraud. A servant may be dismissed for gross insolence or rudeness to his master. In most of the cases in Avhich this point was considered, there was insubordination or disobedience. But gross inso- lence would also warrant dismissal. Each case must be con- sidered by itself ; the social rank and position of the parties and the habits and customary language of people in their {in) "It would appear that im- p. .594. proper conduct out of the uia.ster's {n) (187:3) 42 L. J. (,'. 15. oo ; '28 household is uot a ground of dis- L. T. N. S. 105. The plaintiff had missal, unless, indeed, it can be described herself in the written ayree- shown to be prejudicial to the master, nient as " spinster." The case turned and liurtful to his feelings or on a point of pleading. li. v. U'cxt- reputution." Fraser, ii. p. 413. And meun (1781), Cald. l^y ; Andrews v. see Head v. Bunsriwre, 9 C. & P. at Garstein (1861), 31 I.. J. C. T. 15. 214 THE LAW 01-' MASTER AND SERVANT. condition of life must be considered. It is useless to try to give more precision to matter, which is peculiarly one of degree, than it admits of. Wlien an action was brought by a musical critic against a newspaper propi'ietor for wrongful dismissal, and the latter pleaded that the former had been liegligent and insolent, Hill, J., said "A single instance of insolence on the part of a gentleman employed in such a capacity would hardly justify dismissal " (o). A servant is bound to possess reasonable skill in performing the duties which he inidertakes, and gross incompetence will justify dismissal. " The public profession of an art," said Mr. Justice Willes in Harnier v. Cornelius {li), " is a representation and under- taking to all the world that the professor possesses the requisite ability and skill." No express representation of fitness is necessary. A warranty of this is implied in the fact that a man holds himself out as a doctor, or an architect, or a painter, or a ploughman. No doubt this would not hold good if the employer had notice of the incompetence of his servant before engaging him, or if he chose to employ him in work for which he did not profess to be specially fitted ((/). It is equally clear that there is no implied undertaking on the part of a servant to use the highest possible skill. The circumstance that some other workman would have done (o) Eibamh v. Lcry (1860), 'J F. v. Prentice (1807), 8 East, 348 ; k ¥. 94 ; Smith v. Allen (18t;-2), a Jenkins v. Bcllham (1855), 15 C. H. F. kY. 157 ; Ilintib/yide v. Arthur, 168 ; Seurlc v. nidhn (1873), 28 CainiilieH's edition of Fniscr'-s MiLstor L. T. 411 (.servunt dismissed lor iii- aiui .Servant, p. 71 ; iSclInf v. Jinlilri/, eoniiu'tence without notice : held not (18()7), 5 S. L. J!. (i4. As to master's entitled to wajjes) ; Lee v. JValkcr right to turn out a servant who makes (187'2), L. R. 7 C. P. 11\ ; Buhner a noise and disturbs the peace of the v. Gilmrin (1842), 4 M. & G. 108 ; family, Shaw v. Chairitic (1850), 3 I'othier, Lonage, 419 to 433; Story C. &K. 21. oil IJailmeiits, s. 428. (;;) (18.58) 5 C. I?. N. S. 236; (7) Willes, .1., m Harmtr \. Cw- 28 L. J. C. V. 85. (A seeiie-jiainter nelins (1858), 28 L. J. Q. B. 85 ; disiiii.ssed for ineonnieteiico.) Slater Shirlls v. Jilackbumc (1789), 1 H. V. Laker (1767), 2 Wils. 359 ; Scare ]^. 158. DUTIES OF SERVANTS. iil 5 better what was undertaken is no proof that tliere was a Avant of care or skill warranting dismissal, or an action for negligence, or a deduction in remuneration (v). The degree of diligence required will vary according to the delicacy and importance of the occupation (s). A servant may be dismissed if from sickness or other cause he becomes for a considerable time or permanently unable to perform his duties. But if the servant be not dismissed, sickness will be no defence to an action for wages. This principle, which is only a particular application of the former principle, was affirmed in Cucksun v. Stones (t). The plaintiff had agreed to serve the defendant as a brewer for ten years, at £2 lO^. a week. The plaintiff was taken ill in Christmas of 1857, and was unable to attend to his work until July of 1858. He then tendered his services, and was again employed about the brewery. In an action for wages for the thirteen weeks during which he had been absent, it was admitted that the contract had not been rescinded. The defendant set up the defence that the plaintiff was not ready or willing and able to render the agreed service. The plaintiff demurred ; and the Court gave judgment for the defendant on the demurrer. But on a motion to set aside (r) Tindal, C.J., iu Lanphkr v. (1876), L. R. 1 Q. B. D. 414. The Phipos (1838), 8 C. & P. 475, 479 ; law is thus stated by Mr. Bell in his Jlich V. Fiayont (1862), 3 F. & Principles. Sickness, or inevitable F. 35. accident, "will excuse non-perlbrni- (*•) Dig. 19, 2 ; 13, 5 ; Story on ance for a short time ; but if the Bailments, s. 432 ; Pothier, Louage, inability should continue long, and a c. II. s. 4, a. 1 ; see also Cockburn, substitute shouUl be re([uired, the C.J., Reasons for Dissent in regard master will be discharged from his to Alabama Award, Supplement to counter obligation to pay wages," sec. London Gazette, 1872, 4139; Hinshaio 177, 6th ed. Sickness or incaiiacity V. Adam (1870), 8 M. 933. to serve on the part of an apprentice, (t) (1858) 1 E. & E. 248 ; 28 L. however, apparently, does not dis- J. Q. B. 25. Campbell, C.J., ob- charge his master from the covenaut serves : "He (the servant) could to provide for and maintain him ; he not be considered incompetent by takes the apprentice for better or illness of a temporary nature." See worse. Addison on Contracts, 696, Blackburn, J., in Poussard v. Spiers, li. v. Hales Given (1717), 1 Str. 99. 21G THE LAW OF MASTKR AND SEKVAKT. the verdict obtained by the plaintiff, the Court refused to enter judgment for the defendant. " Looking to the nature of the contract sued upon in this action," said Campbell C.J., we think that want of ability to serve for a week would not of necessity be an answer to a claim for a week's wages, if in truth the plaintiff was ready and willing to serve had he been able to do so and was only prevented from serving during the week by the visitation of God, the contract to serve never having been determined." " If the plaintiff," added Lord Campbell, " from unskilfulness, had been wholly incom- petent to brew, or, by the visitation of God, he had become, from paralysis or any other bodily illness, permanently incom- petent to act in the capacity of brewer for the defendant, we think that the defendant might have determined the con- tract. . . . 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 inability to work." While permanent inability or incompetence owing to sick- ness would, as the above case shows, warrant dismissal, it would be a good defence in an action for non-performance of service. This was decided in Boast v. Firth (u), which was an action by a master for breach of an apprenticeship deed. The defendant, the father of the apprentice, pleaded that his son was prevented by the act of God, to wit, by permanent illness, happening and arising after the making of the indenture, from remaining with or serving the plaintiff. This was considered a good plea, it being in the contem- ])lation of parties to all contracts for personal services that the parties to them should be in a position to perform them. The right of a servant to wages tluriug temporary sickness is not quite clear. Some writers have drawn a distinction between illness caused by the servant's own fault and that for which he is not to blame (x). But the authorities, on the (a) (1868) L. K. 4 ('. P. 1 ; Comt of Ccmmion Pleas ; 35 L. J. TuTjlor V. Caldircll (18(J3), 3 15. k S. C. 1'. 29.'") ; 30 L. .F. C. P. 331. 826, 839; A]ijdel»j v. Mci/rrs (1866 (a) See Caiii]ili(irs edition oi'Fraser & 1867), L. K. 1 C. P. 61.'".; L. \L on Waster ami Si ivant, \k 14U. 2 C. P. 651, reversing dccisiou of DUTIES OF SEUVANTS. 217 whole, show that if" the contract of service remains in force a servant, even if ill, will be entitled to his wages. In Guckson v. Stones the Court observed : " It is allowed that under this contract, there could be no deduction from the weekly sum in respect of his having been disabled by illness from working for one day of the week ; and, while the con- tract remained in force, we see no difference between his being so disabled for a day, or a week, or a month" (,y). It is for the Coiu't to say whether the facts alleged against a servant constitute a reason for dismissal ; it is for the jury to say whether the alleged facts exist. The practice as to this has been by no means uniform. In some instances the question has been left mainly to the jury. Thus in Ridgiuay v. TJte Hiingerford Market Com- pany (z), the jury were asked to decide whether entering a protest on the margin of a minute-book was a good ground for dismissal. In Amor v. Fearou (a), Denman, C.J., told the jury that if a servant claimed a right to overhaul his master's accounts, that would justify putting an end to the relation of master and servant. But he left it to the jury to say whether there was a reasonable ground for dismissal. It was objected that he ought to have decided this question himself. But the Court decided that there was no mis- direction. See also Head v. Dimsmore (h) ; Mercer v. (ij) II. V. Islip {7 Geo. I.) Str. 42-2; held that absence in order to cure Hex V. Sudhrook (1803), 1 Smith, a hurt received by a servant in Ins 55 ; Hex V. Wintcrsct (1783), Cakl. master's service, or from in.sanity, 298 ; Ex parte. Harris (1845), 1 De does not by itself determine the rela- Gex, 165; Garry. HadsiU, 39 J. P. tion of master and servant. See also 246 ; K. V. Raschcn. (1878), 38 L. T. as to insanity being ground of dis- 38 ; 42 J. r. 38 (no answer to an charge, Jl. v. llulcvtl (1796), 6 T. K. action for wages that jilaintitf was ill 583. and unable to work owing to his own (~) See note (a). misconduct) ; llohinson v. Davison (a) See note {d). (1871), L. li. 6 Ex. 269. In Rex v. {l>) (1840), 9 C. & P. 5 Sutton (1794), 5 T. R. 657, it was 2 IS THE LAW OF MASTER AND SEKVANT. W/iall (c) ; and Horton v. McMurtrij (d). The authorities and tlie present practice are in favour of the statement given above. It is not necessary tliat a servant should be dis- missed by his master for a valid reason ; it is sufhcient if a valid reason in fact exists, even if the master be not aware of it at the time of dismissal. There has been much discussion as to the limits of this rule, and considerable reluctance to adopt it. It Avas first laid down in Bidgivaij v. The Hungevford Market Com- 2)any{e). It was followed in Baillie v. Kell (f). In this case it was supported by the analogy of justifications in actions of trespass and wrongful distress. A defendant may justify breaking and entering plaintiff's close under any sufficient legal process open to him at the time, and a person who is sued for distraining wrongfully may set up in justification any legal cause, even although in fact he distrained for another (^). So it was said that it mattered not what ground for dismissal the master alleged, it was enough that he had some good ground. At all events, the servant suffered no wrong. The rule was qualified thus in Cnssons v. Skiimer{/i), by Baron Parke : where there has been " disobedience or an act of misconduct by a servant, known to the master at the time he discharges him, although he does not insist on that as the precise ground of the discharge, he may after- wards, by showing the fact existed, and tliat lie knew it, justify such discharge. " (o) Si'i- (184."^) 5 <.ii. 15.447. tlie jiistiruatioii. liut. no such liiiiitii- ((/) See especially leniailcs of tion appears in tlie judgniciits. Pollock, C.B., at p. 265, 29 L. J. Kx. (/) (1838) 4 15iii<;. :N. (538. 265, Price V. MoHatt (1862), 11 C. 13. (;/) L'mirthcr v. j;'(: W. 161, 172; the i-ei)ort of tins case limits tlie doe- Smilli v. Allni (1861'"), 3 F. k F. trine to cases in which the master had l.'J7, the luiill^ in which scem.s no knowled w of the facts constituting doubtful. DUTIES OF SERVANTS. 219 Tlie introduction of this qualification was not necessary for the decision of tlie case, and it is to be observed that the Court quote as their authority Ridc/icay v. The HuiKjerford Market Company, where no such hmitation is mentioned. In Spotswooil V. Barroiv (i) the Court of Exchequer followed Rklgivay v. TJie Hiingerford Marl-et Comjxniy. The plaintiff, a traveller, was discharged by the defendants, his employers. They pleaded as a defence the fact that he had refused to obey lawful orders, and that he had misappropriated money paid to him by their customers. The misappropriation was proved at the trial ; and the judge left it to the jury to say whetlier or not the defendants discharged the jolaiutiff for that cause. This was held to be a misdirection ; the moti\'es or intentions of the defendauts being immaterial, if their conduct was in fact justified. The fact of knowledge, however, may be sometimes mate- rial. According to one case, if it be alleged in the pleadings that the master have knowledge of certain facts, and that they were the reasons of dismissal, it may be incumbent on him to prove such knowledge {h). It might also be material in regard to the question of condonation (/). When a servant is discharged for a valid reason before the expii-atiou of the time for which he was engaged, he cannot recover the vahie of services which he has rendered imder the contract. This follows from the nature of indivisible contracts. Of course a servant does not forfeit wages which are due but not paid. The doctrine was above enunciated by Lord EUenborough, who in a case at Nisi Prius in 1817 — an (0 (1850) 5 Ex. 110 ; see Alder- (/) The rule lias not been followed son, B., in Willets v. 6^'ccti (1850), in America. Query — would a servant 3 C. & K. 59. be able to set up, as ground of depar- (/»■) Mrrcr V. Whall (1845), 5 ture from .service, a fact which he Q. B. 447, 466, by Denman, C.J. did not know at the time ? 220 THK LAW OF MASTER AND SERVANT. action by a farm servant who had Leon dismissed for dis- obedience {ui) — said : "If the contract be for a year's service, the year must be completed before the servant is entitled to be paid." The rule does not seem to have been clearly settled in 1833, as appears from the remarks of Denman, O.J., in Turner v. Robinson (n). But it was laid down in liiihjway V. Jliingerford Market Coitii)any{o), and Lille ij\. Ehoin{'p)\ and, however harsh the rule may seem, it is nndisputed. The same principle was recognised in the Court of Admiralty with respect to forfeiture of wages by desertion. It has, however, been modified by 17 & 18 Vict, c. 104, s. 243 (f/). A master is entitled to all the earnings of liis ap- prentice. He is entitled to the earnings of his servant acqnired Avhile he is acting as servant. There is no doubt as to the master's right to the earnings of his apprentice. It is affirmed in several cases, iione of which have been overruled, that a master may sue for Avhat his apprentice has earned, even when serving with some other person. In Barber v. DeiLius (r), the apprentice of the widow of a waterman was impressed, and put on board a Queen's ship, where he earned two tickets ; they came into ihe hands of the defendant. It was held that trover for the tickets lay. The same principles appear to extend to (r/i) Spain v. ArnoU, 2 Stark. 256. was held entitled to his wages uj) to \n) (1833) 6 C. & P. 15. the time of lieiiig lett behind. See also (o) (1835)3 A. &E. 171. Taijlorx. Laird (185(j), 1 11. & N. (p) (1848) 11 Q. 15. 742 ; Searlc v. 2(iG ; 25 L. ,1. E.k. 329. As to eases /i'/'//c?/0873), 28 I>. T. 411. Of course in which the contract of hiring cx- Jtiic forfeiture will not allect wages grossly provides for forfeiture of wiuch have already accrued due. In wages, .see Taijlor v. Carr (18(31), 30 JUMun V. Tho-mpnun (1869), L. II. 4 L. J. M. V. 201, and IFalsh v. C. P. 330, a mate, engaged at £5 10,v. JFalleij (1874), L. 11. 9 Q. B. 367. ]ier month, under articles sanctioned (7) lilaclaehlan on Law of Merchant by the Hoard of Trader, who was lel't Sliipliing, 3r(l ed. 240. behind through his own fault at one (r) (US3) 6 Mod. 69; Jnon. 12 of tiic ports at which the ship sto]>ped, ^lod. 415. DIRTIES OF SKRVANTS. 221 servants. "They apply," said Cock])iirn, C.J., in Morlson v. Tltohi'pson (s'), "to all cases of employment as servants or agents, the profits accpiired by the servant or agent in the course of, or in connection Avilh, his services or agency be- longing to the master or principal"; in other words, if the servant receives such earnings or profits he will be treated as the agent of his master, and an action will lie at the instance of the latter (t). No doubt a master, as between himself and his servant, is entitled to all which the ser- vant earns as his servant ; but as against third persons the master would seem to have a right to his servant's earnings only when he acted as his master's agent. If he hires a servant to design or invent, the inventions belonof to the master. Such was the case in Makepeo.cc v. Jackson (u), in which a calico printer was held entitled to a book in which his colour-man entered the recipes of processes, although the book contained processes invented by the latter. Should a master discover some valuable invention, and a workman whom he employs make a discovery subordinate and accessory to it, "such improvements," it has been said, "are the property of the inventor of the original improved principle, and may be embodied in his patent ; and, if so (*•) (1874) L. l\. 9 Q. B. 480 ; 43 turnod on ui^a.ge) ; Emlcs v. Vandeput L. J. (,). B. 215 ; 30 L. T. 869 ; 22 (1785), (25 Geo. 3), 5 East, 39n. (but AV. 11. 859. The judgment of the aeo Foster v. ,yfrivarf); Briqiif v. Lucas Court is that of Cockburn, C.J. ; (1796), 2 I'eake, 12 (indi'iitup'd np- BLickburn, J. ; and Archibahl, J. prentice who had deserted from Ids See alao Tho)iq)Soiiv. Ilavclock {1S08), master's service cannot maintain 1 Camp. 527. action for Avages) ; Li(jfdly\. Clousfon (t) This ease does not, howevei-, it (1808) (the master of apprentice wlio is submitted, overrule Treswell v. has been seduced from his work Middlrfon, Crok. ,Tac. 653 ; 2 Koll. may maintain action of indebitatus 269. (Judgment for plaintiff, inaction assiim])sit against the ])erson who for debt against defendant who had has seduced hiin) ; Foster v. Stewart retained his servant to make chairs (1814), 3 M. & S. 191 (plaintiff's for five days. Judgment reversed ; apprentice deserted from plaintiff's debt did not lie because it may be ship; went on board defendant's ship; the master never consented to the defendant persuaded him to remain : retainer, and the servant never in- held iilaintitf could waive tort and tended to contract for his master.) bring action of assiimimt against Carson v. If'attsilTM), 3 Doug. 350 defendant). (prize-money gained by ap])rentice ((/) (1813) 4 Taunt. 770. Here, serving on board ship-of-war does not howevei-, the action was in trover for belong to master of apprentice. This the book. 222 THE LAW OF MASTER AND SERVANT. embodied, the patent is not avoided by evidence that tlie agent or servant made the suggestions of that subordinate improvement of the primary and improved principle" (x). But if an invention be discovered by a servant, the master, not being the first and true inventor, cannot get a patent (y). Accordingly Arkwright failed to obtain a ])atent for a certain roller -when it Avas proved that he had been told of it by one Kay, whom he had had in his service and whom he em- ployed in making models (z). An apprentice cannot be dismissed by his master for misconduct unless there be a stipulation to that effect in the indenture of apprenticeship). Thus, in an action against a master for refusing to instruct and maintain an apprentice, in which the former set up as a defence disobedience of orders and other acts of misconduct, the Court drew a distinction between the relation of master and servant and that of master and apprentice, and held that the latter contract could not be dissolved for acts of miscon- duct (ct). " The master," Best, C. J., observed, " has at common law a complete remedy, if the apprentice misconducts himself, by an action for a breach of the covenants. The provisions contained in the statute relative to parish apprentices show that, at common law, the master could not determine the contract, if the apprentice misconducted himself" (/>). So, in Phillip'^ V. Cliff {(■), it was held to be no answer to an (r) Erie, .1., ill .41101 v. Jiairson [a) Wiiidiuic v. /,//(?/. (IS'CS), 1 H. (184o), 1 C. 15. 55], r.t57. r.ut tlic c^ C. 400, 47(1 ; 2 1). & K. 46.-. ; Wise above does not seem to he a priiicijdc v. Wilsuii (1845), 1 C. & K., Deii- oflaw p. 576, and .see Z?;o.m//( V. £/Arc man, C.J., at p. 669. (1825), 1 C. & P. 558; Hollo v. (6) 20 (ieo. II., c. 17. Thompson (1857), 10 D. 094. (c) (1859) 4 H. k N. 168 ; 28 L. {y) Rrx\. Arkirriijld (1785), cited .T. E.\. 153. Sec also Addams v. in ///// V. TAr-z/vw""! 8 Taunt. 395. Cartrr (1862), t! L. T. N. S. 130 ; [z] Cuitis, Patent Law, 101 ; and Mcrcrr v. W/xill {IS45), 5 Q. B. 447. .scci.'c Ruancirs Pu'rul, 2 De U. & J. In Cox v. Malhvirs (1861), 2 V. k 130 F. 397, Byles, ■!., ruled that a DUTIES OF SERVANTS. 223 action against the master who liad turned away his appren- tice, that he conducted himself in so dishonest a manner that it became unsafe for the defendant to keep him in his service. The covenants in the indenture were independent; the master might have chastised his apprentice ; he could not dismiss him. But a power to dismiss may be provided by the terms of the deed. Thus, where a master agreed to take plaintiff's son as an apprentice for three years and to teach him, and the agreement concluded, " provided always tliat he (the appren- tice) obeys all commands and gives his services entirely to the business during office hours," misconduct on the part of the apprentice was held a good answer to an action for dis- missing the apprentice (d). jeweller would not 1io liomiil to retain shaken, and in these days, when an habitual thief as apprentice. In an a])prentice is rarely sent to prison, JFise V. Wilson (1845). 1 C. & K. it woidd Le, perhajis, more correct 662, Deninnn, C.J., ruhnl that a to say, that the misconduct whicli doctor might dismiss a " ])upil and would entitle a master to dismiss a assistant " if he endangered his servant M'ill not entitle him to dis- master's practiie ])y carelessness. On mi.ss an a])prentioe. It is a good plea the other hand, probably, an appren- to an action for not teaching an tice, having reasonable grounds for ajiprentice, that the conduct of tlie fearing grievous bodily harm, may apprentice was such as to prevent it. leave the service of his master ; //«///- Rayment v. Mintvii (1866), L. K. 1 well V. Counsell (1878), 38 L. T. 176. Ex. 244 ; 35 L. J. Ex. 3. 56 Geo. III., c. 139. As to damages for breach of {d) Wcstwick V. Thcodor (1875), covenant in an indenture of aiipron- L. R. 10 Q. B. 224 ; 44 L. J. Q. B. ticcsliip, Lnds v. Prwlinj (1862), 1 110. The rule stated in the text H. k. C. 518 ; 31 L. J. Ex. 496. appears to have been somewhat 224' THK LAW OF MASTER AND SKRVANT. APPENDIX A. 1. The villus stated in the text as to the cii'Liuiistaiues in which servants may be dismissed have been reco^uniscd for many years. It was, however, long supposed that a master had no right to dismiss a servant for disol)edience or misconduct. In 19 Hen. XL, 30, cited in Brookes' Abridgment, title " Labourers," 27, it is said, " It seems the master cannot discharge his servant Avithin the time, &c., unless he agree to it, no more than a servant can depart without the agreement of his master." See, however, Fitzherbeit, 168. In Dalton's Justice, edition of 1697, p. 128, the same view is stated,—" The master cannot discharge his servant, during his'term, without the agreement of the servant. And now by the statute 5 Eliz. 4, it must be for some reasonal)le cause to be allowed by one justice of the peace at least ; otherwise the master shall forfeit forty shillings. Tamen qncere. For where the departure or putting away of the servant is by the joint consent of the master and of the servant, such putting away or departure, seemeth not to l^e Avithin the statute of 5 Eliz., neither is the allowance of the justice of the peace refiuisite or needful therein." " If a servant shall refuse to do his service, that is a departure in law, although he stay still with his master. If the master shall detain from his servant liis wages, meat or drink, this is a good cause of departure : But yet this cause is now by the statute of 5 Eliz. to be alloAved of by the justices of peace, before the servant may lawfully or safely depart. So if the master shall license his servant to depart, or if the master, or wife of tlie master shall beat the servant ; these were good causes for the servant to depart, before the statute 5 Eliz. 4. But now the allowance of the justice of the peace is reipiisite as aforesaid." The fifth section of 5 Eliz. c. 4, stated " that no person which shall retain any servant shall put away his or lier said servant unless it be for some reasonable and sufficient cause or matter to be allowed l)efore two justices, or one at the least within the said county, &c." Some editors of the statute read differently fbe section which I have (piotcd ; for "to" they read "or," as if resort to the justices were an alternate remedy. But the "enerally accepted reading, l)orne out by the statute itself, is that which I have given. The question was considered by the judges in 1«:33, and their answer is clear :— " If a Avoman lieing Avith child," say the judges in their resolution, " i)rocure lierself to be retained Avith a master Avho knoweth nothing thereof, this is a good cause to discharge her from her service. And if she be gotten Avitli child during her service, it is all one. But the master in neither case must turn away such a servant of his own authority. But if lier term be ended, or she DUTIES OF SERVANTS. 225 lawfully discharged, the master is not bound to provide for her," &c. Dalton's Justice, p. 1()5. Tlie law was so understood in 1773. Lord Mansfield in Temple v. Prescott, Cald. 14, n. — an action l)y a wet nurse who was discharged by her mistress — ruled that frequent acts of insolence to her mistress and fits of passion did not warrant her discharge. "No person," he said, " can be judge in his own cause ; and this first principle could not be meant to be overturned by any law or usage whatsoever." He refused to receive evidence of usage, now Avell recognised, to dismiss domestic servants on payment of a month's wages. See also Hex v. Turdehriijg, Sayer, 100 (1753). In 1777 Lord Mansfield and Willes, J., in Rex v. Brampton, had to consider the same point. Eelying mainly npon a dictum in Viner's Abridgment, title Removal, p. 459, which does not bear out Lord Mansfield's statement, they ruled that a master was entitled to turn away a maidservant Avho was with child. " Sliall the master," asked Lord Mansfield, "he bound to keep her in his house? To do so would be contra honos mores, and in a family where there are young persons both scandalous and dangerous." This decision was put by Willes, J., on the ground that the justices had no jurisdiction in case of domestic servants. See Rex v. Welford, Cald. 56. To show how the law was understooil till some time after Rex v. Brampton, I may refer to Mr. Bird's book on the " Law of Master and Servant," the first edition of Avhich was publislied in the end of last century. In the third edition, published in 1801, he cites at p. 3 Rexv. Brampton, to show that notwith- standing the statute of Elizabeth, if a servant be guilty of incontinence or other moral offence whilst in his master's service, the master may discharge him without application to a justice. But Mr. Bird adds, '' neither for rudeness or other misbehaviour of servant, can the master discharge him, before the end of his term, nor can the servant leave his master on account of ill-treatment by the master or mistress ; but in these and like cases, application must be made to a justice for a discharge as directed by tlie statute of Elizabeth." See remarks of Lord Kenyon in Rex v. Hulcot (1796), 6 T. R. 587, and Bex v. Sutton (1794), 5 T. R. 659. Sections 5, 6 and 9 of the statute of Elizabeth are mentioned by Mr. Crabb in his Digest of Statutes as being in force in 1844 ; they do not seem to have been repealed until 1875. See Chitty's General Practice (edition of 1837), p. 76. I do not find any clear assertion of the principle, now universally admitted, that a master may for disobedience, &c., discharge any servant, until 1817, when Lord EUenborough at Nisi Prius, in Spain v. Arnott, 2 Starkie, 25G, — a case of a servant in husbandly— said, " He (the master) might have obtained relief by applying to a magistrate ; but he was not bound to pureue that coui-se ; the relation between master and servant, and the laws by which that relation is regulated existed long before the statute." These words seem directly contrary to the express terms of the 5th section. (2) At 22G THE LAW OF MASTER AND SEJUANT. coiuinou law a ])ci'soti is not entitled to treat a contract as at an end for every breach, but only when there is a breach wliich j,'oes to the root of the matter and which cannot be properly compensated for : Simps(m V. Crijipin (1873), L. K. 8 Q B. 14. When a singer wlio had engaged with defendant to sing for fifteen weeks, and who had agreed that he would be ready for rehearsals six days before the engagement commenced, failed to attend tliese rehearsals, it was held that the defendant was not entitled to refuse to take the plaintifl' into his service : Bettini v. Gye (1876), L. R. 1 Q. B. D. 183. No doulit failure or refusal on a single occasion to do Avhat one was bound to do under a contract of personal service — as in Poussnrd v. Spiers (1876), L. R. 1 Q. B. D. 410, which was a case of failure on the part of a leading singer to join in the opening performance of a new opera — might go to the root of the contract and justify recision. But apart from the decisions Avhich are quoted in the text, it might not have occurred to anyone that refusal by a maidservant to answer a bell, or by a clerk to fetch a book on a single occasion, would justify instant dismissal and forfeiture of wages : Gould v. JJ'chh (1855), 4 E. & B. 933. APPENDIX 13. There is an absence of authority in English law as to the place at which a servant is boimd to serve, p. 184. The point has been much discussed in the Scotch Courts, and the following is said to be the rule on the subject : — " It seems to be the general opinion of lawyers, that all domestic servants, secretaries, and other servants similarly circumstanced whose duties have rehititju solely to the master's presence are bound to attend his movements, and cannot object to go with him from country to town, from town to country. But this under the following conditions : No servant is bound to go out of the British Isles to a foreign country, seeing that there he is without the protection of British law, and in circumstances, it may be, far dillerent from those under which he would have lived in his own country. Nay, some lawyers think, that no servant hired in Scotland is bound to go to either England or Ireland." " In the case of servants whose Avork has reference to a ^'^"ce, not to the master's person, such as overseers, ploughmen, or workmen at manufactories, the master cannot remove the servant to any other farm or manufactury at any distance inconvenient to the servant. The place where the master has his work at the time of the engagement would be held the place where (in the absence of express stipulation) it is implied that the servant was to labour ; and, DUTIES OF SERVANTS. 227 having once entered to his service, he cannot be removed to any place which may occasion him trouble or expense." Campbell'.s edition of Fraser's Law of Master and Servant, pp. 83 and 352. The above distinction between servants whose work has reference to a place, and those whose work has reference to a master's person, seems to be recognised in all systems of jurisprudence ; Savigny, Obligationenrecht, I. 49 ; Levi, Delia Locazione ; ylmhyrson v. Moon (1837), 1(5 S. 412. It was decided in Coventry v. Woodhall, Hob. 134, that "i^'enerally no man can force his apprentice to go out of the kingdom, unless it be so expressly agreed, or that the nature of his apprenticehood doth import it, as if he be bound apprentice to a merchant adventurer or a .sailor, or th.e like." <)2 CHAPTER XXIII. RIGHTS OF MASTERS AGAINST THIRD PERSONS. Masters may recover damages against j^crsons wlio ^^Tongfully deprive them of the services of their servants. The rights of masters and servants arise out of contract. It might therefore be supposed that they would consist merely of rights in 'personam and not of rights ad rem. This, however, is not entirely the case. The relation is, in some respects, status. The master's rights to the labour of his servants are regai'ded as rights ad rem ; they are some- what of the nature of property (a). Such a right of action as that which is above stated existed from early times. According to Bracton (b), the master might bring an action for insult and disgrace in- flicted upon his servant, apparently though he had not lost service (c). Actual bodily injury was not necessary to sustain such an action : mere intimidation or menaces were enough, as appears by 40 Ed. III. and 20 Hen. VII., p. 5 (d). The rul.e clearly recognised nowadays is, that the master may recover damages from persons who have wrongfully (n) Inlrodiu'tioii, note (rt). 3,4. It may he noted that iicconling (li) Hracton, 115 and 155. Sec to I'nlton, the master's remedy for lJi;(elow on Torts, p. 224. menaces to his servant extended to a (c) The rule was different in I'rit- "servant, tenant, or any other person ton'.s time. Nicholl's Britton, i. by wliom he liveth or receivetli p. 131. benefit." (d) Sec also Pulton d'' Pace Ilejis, RIGHTS OF MASTERS AGAINST THIRD PERSONS. 220 injured liis servauts, provided a loss of service is thereby caused (e). Thus actions have been brought by masters against persons for negligently driving over a servant (/), administering injurious drugs to him {(j), or for injuries from the bite of a dog (h). Common instances of such actions are those which are brought against persons who knowingly entice away or procure the departure of servants (i). To sustain such an action, it is not necessary to prove any binding contract of services (/) ; it will be enough for the plaintiff to show that he was actually receiving the benefit of certain services at the time at which the injury of which he complains was committed, and that the dcfendc'nt was aware of this fact. In Liimleij v. Gye {m), it was held that an action might be brought by one theatre manager against another for procuring a prima donna to break her engagement to sing at the theatre of the former. In short, the action lies when the relation of master and servant does not in the strictest sense exist. The Courts have extended the action for loss of service to the case of children who are injured, a child being con- structively in the service of its parent. There must, how- ever, be some foundation for the theory. A father will not (f) 'Would an action lie for inducing 15 W. K, 1062 ; 17 L. T. X. S. i)2 ; a master to discharge workmen i Luinlcy v. Gijc (1853), 2 E. & B. (/) Martinez v. (Jerber (1841), 3 216 ; 22 L. .T. (>. B. 463 ; 17 Jur. 827 ; M. & G. 88. Bourn v. Hall (1881), L. R. 6 Q. B. ((/) Bacon's Abridgment, -Master 333. Trespass will lie for enticing and Servant, 0. away a journeyman, Ilarl v. E/driJ'ji: (h) Eodsoll V. Stallchrasa (1840), (1774), Cowp. 54, although only hired 11 A. & E. 301. by the piece and not for any certain (t) The Scotch courts have held time. Tres^iass will not lie for that a master is entitletl to damages inducing a servant to leave at the liom one who induces a servant to expiration of the period for which reveal the secrets of his master's trade. he was engaged, althougli he had Fraser, 314. See as to the above no intention at the time of leaving, class of actions Hall v. Hollander Nichol v. Martin (1799), 2 E.sp. (1825), 4 B. & C. 660 ; Lewis v. 734. As to evidence of enticing Foijij {112,2), 2 Str. 944 ; Furcs v. away, Kcane v. BoycottXH^b), 2 H. Wilson (1791), Peake, 78. B. 512. (I) Evans v. Walton (1867), L. R. (ra) Sec note [1). 2 V: V. 615 ; 36 L. J. C. V. 307 ; L'oO THE LAW OF MASTER AND SERVANT. be able to recover damages if his child be incapable by reason of youth, as in Hall v. Hollander (n), of rendering services. This remedy has been used by a sort of fiction for the purpose of jDunishing seducers of women. The action is based u23on loss of service, and is said to be maintainable only when the relation of master and servant exists ( o). But in order to extend the remedy, the Courts have been inclined to find that relation, when in point of fact it does not exist. Proofs of trivial acts have been accepted as evi- dence of service. It is enough that there is a service at will. The fact that a daughter, as in Bist v. Faux (q), assisted in household work after coming home in the evening from the fields where she worked for hire, has been held sufficient. The length to which the Courts have gone is seen by Evans V. Walton (r), which was an action for enticing away the plaintiff's daughter. She resided Avith her father and assisted him in his business as a licensed victualler, but she was free to leave at any time. Having quitted home with her mother's consent, she was seduced. The Court thought that, as she had been induced to quit a continuing service, an action was maintainable. On the other hand, no action will lie for enticing away an apprentice if there exist no valid contract of appren- ticeship. In a case in Avhich an indenture was void by rea.son of the 8th of Ann. c. 9, sec. 35 & 39, for not truly and fully setting forth the consideration or premium paid, the (n) (1825), 4 B. & C. 660. confinement she was in service of (u) Fines V. JVi/smi (1791), I'eakc anotlicr eniiiloyer, and afterwards re- N. P. 77 ; 7'hoiii2}son V. lioss ilSbd), tnnied home to her mother ; no action 5 H. u N. 16. because no eviiU-nce of service at the (y) (1863), 4 B. & S. 409 ; but see time of sechiction ; and by Kelly, Dca7i. V. Feci (1804), 5 East, 45 ; C. B., Jlartin, Hraniwell, BB., he- and IIcd(/cii V. 7'i'(!on a servant cause his immediate death, the master has no right of action. The reason of this qualification is very obscure. It was quaintly said by Tarfield, J., in Higgins v. Butcher (y), " That the servant dying of the extremity of a battery, it is now (s) Cox V. Munc'i/ (1S59), (5 C. B. (.r) Faircet v. Bcavrcs i\&7\), 2 N. S. 375. Lev. 63 ; Fosscl v. Brccr (lii71), 3 (t) Bloke V. Lanyon (1795), 6 T. K. Keb. 59 ; Fores v. Wilson (17^1), 221 ; Ashcroft v. Bcrllcs [ll'i^), 6 T. Peake, 77. (No notice necessary iu li. 652. case of action of seduction. ) (u) Syh-cs V. Dixon (1S39), 9 A. & (y) (lG06),Yelv. 90. Notice does not E. 693; 1 W. W. & H. 120 \J'il!:i)igton seeui to have been re(juired when the V. Scott (1816), 15 M. & W. Gr>7. Statute of Labourers was in force. 232 THE LAW OF MAiSTER Alv'D SERVANT. become an offence to the Crown, being converted into a felony, and that drowns the particular offence and private wrong offered to the master before, and his action is thereby lost." There are several objections to this explanation, which was a dictum not essential to the decision of the case. One of these is the fact that White v. Spettigue {yy), followed in this respect by Osborne v. Gillett (z), has decided that the rule as to a right of action being suspended in case of felony applies only between tlie person injured and the criminal ; it does not affect a third party, such as the master. According to another explanation, "The master's riglit to his servant's services is instantly abrogated, and, in the eye of the law, no damage is sustained by him because no right " (a). This reason explains nothing. Does not a right of action accrue to the master between the moment when the injury was inflicted or the wrong done, and the moment when death took place ? And, if it does accrue, what becomes of it ? Probably the rule originated in a mistake as to the meaning of the maxim Actio ■pei'sonalismorltur cum persona. The existence of the rule has been disputed by some American Courts (c). Whatever be its origin, it is in force. It was stated in Higgins v. Butcher, it was affirmed by Lord Ellen- borough at nisi prills in Baler y. Bolton { WmcjiIi. 814 ; 31) Jur. 450. (Agree- (I'laintiff agreed witli defendants, ('. nunt between a lirm and theii- and Al., to serve' for seven years ; L. cleik ; the clerk engaged i'or five \w. contract is rescinded; clerk not S. C. 766 ; Ilex v. Harburlun (1780)' barred by certilicate from recovering 1 T. R. 139 ; on otlier band. Hex v. all tbe wages due from the expira- Wardcn (1828), 2 M. & 11. 24, and tion of the year last before the com- Rex V. Sfccffington (1820), 3 B. & A. mission up to the time of rescinding, 382. nothing being duo, and jiroveable (p) Fraser's Master and Servant, at the date of issuing tiic com- 3rcl cd. p. 315. }ni.ssion. It is almost ncedh'ss to say (q) Thnhins v. Williams (1834), that the assignees of the banknipt 1 A. & K. 685 ; 3 N. & M. 545, could not require the fuHilment of ■clerk hired by the year continues in the contract of service by a servant bankrupt's oiKce after bankrupt. In Aliinger, C.B., in Gibson v. Carruthers .the mid.iif of year l)y mutual consent (1841), 8 M. & W. at !>. 343. BANKRUPTCY. 239 bankrupt, the order of adjudication shall, if either the bank- rupt or apprentice rc(|uire notice in writing to the trustee to the effect, be a complete discharge of the indenture of apprenticeship or articles of agreement. A trustee lias no riglit to tlie proceeds of the personal and daily laboiu' of a banla-upt. The old law — and it is still in force — was that wages earned by a bankrupt before his discharge did not pass to his assignees, at all events so far as the wages were necessary to his maintenance (r). Williams v. Chambers (s) decided that the assignee of an insolvent debtor could not recover in respect of work and labour performed by the debtor if the remuneration were necessary for his maintenance. But if the claim were not for " mere personal labour " — if, as in Elliot V. Clayton (t), the claim were for medical attendance and medicines, or for services rendered by a furniture broker, who employed men and vans in the course of the services for which he sued (u) — a different rule prevailed. No doubt, too, if a person accumulated a large sum, even by personal labour, the assignees might claim it (x). In like manner the trustee, and not the bankrupt, could sue in respect of a sum which was not the remuneration for work and labour, but damages for breach of contract ; as in Wadling v. Oliphant (y), where the trustee was entitled to claim a sum awarded by the Court of Chancery to the bankrupt, after (r) ChipiJcndall v. TomUnson [x) Hesse v. Stevenson (1803), 3 B. (1785), 4 Doug. 318. (In this case & V. 578. the assignees did not interfere.) Silk (y) (1875), L. R 1 Q. B. D. V. Osborn (1794), 1 Esp. 139 ; Ex 145. See also Beckham v. Drake parte iFalters (I8i2), 2 M. D. & 1). (1847), 2 H. of ].. U. 579, right of 635 ; Ex parte Grivistead (1844), De action for breach of agreement to hire G. 72. for seven years which accrued before (s) (1847), 10 Q. B. 337. bankruptcy passed to assignees, and (t) (1851), 16 Q. B. 581. on the other hand Ex parte Daohurst (u) Crofton v. Pooh (1830), 1 B. & (1871), L. E. 7 Ch. 185. Ad. 568. 240 THE LAW OF MASTER AND SERVANT. bankruptcy ami before discharge, in lieu of proper notice of dismissal. " If salary or wages, or commission under a contract of service," says Wilde, C. J., in Beckham v. Drake (?) — in which the question was whether a sum in the nature of a penalty for breach of a contract to employ passed to the assigneesof a servant — "are due at the time of the bankruptcy, the right to recover such wages, salary, or commission, would pass to the assignees as part of the personal estate, without regard to the consideration of whether the contractor's services had had relation to the personal skill or labour of the bankrupt," &c. ... To the argument that the action was personal to the bankrupt, Wilde, C.J., replied, " It arose out of a contract founded on the personal confidence in the bankrupt, and which could only be performed by his personal labour and skill ; and, in the same sense, contracts are per- sonal made with factors, salesmen, agents of various kinds, masters of ships, bankers, attorneys, architects, engineers, and various other persons whose personal skill, knowledge, and integrity, are the inducements to the contracts. But surely it cannot be contended that the right of action for breaches of contract in relation to such employments accruing before the bankruptcy would not pass to the assignees." In Emden v. Carte (a), the trustee of an archi- tect was held entitled to sue for remuneration in respect of a contract to employ the bankrupt as architect, and for damages for wrongful dismissal from such employment. The circumstance that the master is likely to become bankrupt, or that his property has been all taken in execu- tion, will not exonerate the servant from performance of his contract " (h). Sec. 1)0 of the Act of 1869 says that, " where the bankrupt is in receipt of a salary or income other than as aforesaid (officers, &c.), the Court, upon the application of the trustee, (;) (1849), 2 H. L. C. 633. v. Oliphant, L. K. 1 i.}. ]5. M5. (a) L. K. (1880), 17 Ch. J). 169 ; {h) Wood, 307. L. K. 17 Ch. D. 763 ; also Wndlimj BANKRUPTCY. 241 shall from time to time make such order as it thinks just for the payment of such salary, income, or of any part thereof, to the trustee during the bankruptcy, and to the registrar if necessary after the close of the bankruptcy, to be applied by him in such manner as the Court may direct." CHAPTER XXV. ASSIGNMENT OF PERSONAL CONTRACTS. Contracts of hiring and service cannot be trans- ferred or assigned without the consent of the parties thereto (a). Master and servant both contract with regard to the personal quahties of each other. The relation is one of personal confidence, and the one cannot compel the other to accept a third person in substitution. If A., for example, sells his business to B., he cannot turn over I)., his servant, to the purchaser. Neither will a servant be permitted to say to his master, " I decline to work myself, but I have procured a competent substitute," or, " I have let out a part of the work." In one case the plaintiff was employed as master of a ship ; he engaged A. to act for him. In an action which the former brought for wages, it was held tiiat B. could not recover, as the contract contemplated personal service (h). In like manner tlic contract of apprenticeship is iwimd facie not assignahle (c). As it is expressed in Coventry V. Woodhall, "The matter of putting an apprentice is (a) Adilison on Contracts, 7th od., femlant). See also Stevens v. Ben- WW ; Pollock nn Contracts, p. 411. vinrf (1S54), 1 K. & J. 168; 6 D. (h) Campbell V. rrirc (1831), 9 S. M. k G. 223 (agreement between 26i ; Srhmnlingv. Tornlinson {ISIb), aiitlior and publisher); Rolstm v. r, TaiHit. 147. " (A. employed by de- Sharpe (1831), 2 15. k A. 302. fend.nit to carry goods to a foreign As to .servant agreeing to serve market ; A. dclei^ated tlie jicrlorm- master's assignee, Beniirll v. Inns ancr to ]ilaintifr, who did the work (ISf)?), 2*3 L. J. CIi. 663. witliont knowledge of tlie defendant ; (r) fiurt'T v. Burfield (1747), 2 jdiiintiir could not recover com- Str. 1266 ; Home v. Blake, 2 Str. pcnsation for .services from de- 1267. ASSIGNMENT OF PERSONAL CONTRACT.S. 243 a matter of great trust, for liis diet, for his health, for his safety ; and therefore I will, by choice, commit him to one and not to another " (d). Such a contract, however, may be assignable if the master's assignees, or executors are named (e), or if there be, as is the case in the City of London, a custom in virtue of which an apprentice may be turned over to a new master (_/"). (d) Hob. 134 A. (<•) Cooper V. Simmonds (1862), 7 H. &N. 707; 31 L. J. M. C. 133. All infant bound himself apprentice to a tradesman, his executors and adtninistrators for seven years carry- ing on the same business in the town of Wolverhampton ; the apprentice bound to serve the widow, who was sole executrix, and who carried on the same business in Wolverhampton. (/) Jiex V. Peck (1699), 1 Salk. 66 ; Bowchicr V. Coster, Kelilo, 250. But apparently, the assiffnee could not sue on tlie deed ; Show. 4. There are authorities ( IVadsworth v. Gye, Sid. 216 ; IValkcr v. Hull, 1 Lev. 177) that where a master covenants to find the apprentice in meat, drink, and necessaries during the term of apprenticeship, his executor.s are bound to perform the covenant. But query. As to right to appoint deputies, Phelps v. Winchcombe, 3 Bulst. 77 ; Walsh v. Southworth, 6 Ex. 150. E 2 CHAPTER XXVI. servant's authority as to contracts. A servant may bind his master by contracts (1) when lie is specially authorised to do so ; (2) wlien he is placed in a position of trust for the due discharge of which authority to make such contracts is necessary or usual ; or (3j when third persons have reason to believe from his master's conduct that he has autho- rity to bind his master. When a master entrusts to a servant the performance of certain duties, it will be held that there is an implied authority ■or mandate to enter into contracts which are necessary or usual for the performance of such duties, and persons dealing with servants will not be affected by restrictions which are placed upon the servants' authority unless such restrictions are known to them (a). The relation of master and servant invests the latter with no authority to bind the former (6), but the servant may have from the particular duties assigned to him the right to bind his master in regard to contracts. When, for instance, a foreman employed by the owner of a sawmill agreed to supply a quan- tity of fir-staves, the latter, it was held, was bound by the contract though he had given his foreman no special authority to enter into it (c). It will often be left to a jury to say whether (a) For early authorities on this Jlosn (ISGC), L. R. 1 Q. B. 534. subject, SCO i)octnr and Student, (h) I.oiike on Contracts, 467. II., chap, xlii., and Noy's Maxims, (r) lUc/mrdsonv. Carhrri. 886 ; Sandemann &ec. Via. V. licurr (1866), L. E. 2 Q. U. 86. servant's authority as to coi^tracts. 247 acrainst the master that lie had made a special arrangenieut with his groom by which for a year the groom was to keep his master's horses properly shod and to furnish them with medicine (I). On the other hand, if a servant chooses to go to a tradesman with whom there have been no pre- vious dealings — if, for example, as was the case in Hlscox v. Greemvood (m), a coachman sends, without his master's knowledge, a chaise to a coachmaker who had never been before emiDloyed — the master incurs no liability. A common example of this principle occurs when a servant is allowed to make repeatedly purchases on credit. Tradesmen dealing with him are entitled to assume that he has in these circum- stances authority to do that which he us\ially does with the knowledge or permission of his master, in the absence of notice that his authority is limited, or has been withdrawn. Accordingly, if a servant who usually buys for his master on credit, appropriates to his own use things which have been so bought, the master is liable. On the other hand, if the servant is always in cash beforehand to pay for goods, the master is not liable if the servant misappropriates the money or the goods (n). " Nothing," said Lord Kenyon, in Stubbing V. Hentz (o), " could be clearer than that where a man gives his servant money to pay for commodities as he buys them, if the servant pockets the money, the master will not be liable to pay it over again." To rebut the presumption of authority raised by a previous course of dealings, it must be shown that notice was given of the intention to make a change. The cases seem to show that notice to a servant of a tradesman will not suffice. In Gmtland v. Freeman ( i>) it appeared that the defendant was in the habit of dealing with the plaintiff, a publican, on credit. He paid his bill and then gave notice to the plaintiff's servant that he would run up (I) Precious V. Abel (179j), 1 Esp. Esp. 76. 350. (0) (1791), 1 Peake, N. P. 6Q. (m) (1802), 4 Esp. 174. {p) (1799), 3 Esp. 85. («) Jiusby V. Scarlett (1803), 5 248 THE LAW OF MASTER AND SERVANT. no more bills, but only pay for beer as it came. Lord Eldon ruled that tlic defendant must sho^Y that the plaintiff had notice of this change in the manner of dealing, and that notice to the servant alone would not be sufficient. Even if there have been no previous dealings, the master's conduct may amount to a representation that the servant has authority to contract in his name. Thus, when a coachman with whom his master had a private arrangement that he was to provide horses, went to a stable keeper in his master's livery and ordered horses, the master was liable. Littledale, J., in directing the jury, said "If he (the servant) made the contract in his own name, and represented to the plaintiff the agree- ment between himself and the master, of course under such circumstances the plaintiff cannot recover. But if he made no such representation of any agreement between himself and his master, I think that, by the master's sending him forth into the world wearing his livery, to hire horses which 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 master is bound to pay the hire " {q). A master will render himself liable if he ratifies the acts of his servant. Ratification may take place in many ways. If the servant orders goods in his master's name, and the latter uses them, knowing or having grounds for believing that they have been so ordered, he will be held to have ratified his servant's act. If he ratify a contract concluded by his servant, he will ratify it altogether. Thus if he re- ceive the price of a horse sold by his servant, he will be bound by a warranty which the servant may have given in selling it (7"). It is often a difficult question, especially when contracts are made orally, to determine whether a master or a ser- vant has been, in fact, trusted. If the servant did not act as 0/) IlimcU V. iSaiimayo (1824), 1 (r) Briatoirc v. IVhiUjwrc, -1 L. T. C. & P. '254. N. S. 6-22. servant's authority as to contracts. 249 •liis master's ag-cut — if ho either expressly or hy implicatiou contracted on his own behalf — the master is not liable (.s). Has a servant power to pledgt; his master's credit after he quits his employment ? This is a mixed question of law and fact, and depends upon whether his master still in any way holds the servant out to the world as his agent. With refer- ence to a servant, who had been in the habit of drawing bills of exchange in his master's name, and who was dis- charged, Holt, 0. J., said, " If he draw a bill in so little time after that the world cannot take notice of his being out of service, the bill, in these cases, shall Ijind the master" (t). In a Nisi Prius case (u), Pollock, C. B., ruled that a gentleman was liable for corn ordered in his name by a livery stable keeper, H., who had been his coachman, who used to order corn, &c., of the plaintiff, and who continued to wear his livery. The defendant did not give notice to the plaintiff that H. was no longer in his service. It seems that an account was sent to the defendant ; but he did not then give any notice to the plaintiff, who continued to supply corn on H.'s orders. In some cases both master and servant will be bound. This will happen when a servant contracts as the agent of his master without naming his master, according to a well- known rule of lav/, that an undisclosed principal or his agent may be sued (y). (s) JVilliamson v. Barton (1862), there is inucli more than that in 7 H. & N. 899 ; 31 L. J. Ex. 170 ; this case, and there may be notice 5 L. T. N. S. 800. hy other means than express or {t) Anon. V. Harrison (1699), 1-2 actual notice. And here you have Mod. 346. In Staveli/ v. Uzidll the fact tliat no accounts wore sent (1860), 2 F. & F. 30, Erie, C. J., ruled in, even to the servant (and none to tluis : "Although the law is clear the master), for four years before the that the master who has once held servant's death ; and no accounts out a servant as having autho- sent in until after his death, and the rity to contract on credit must with- plaintifl's removaL" draw that authority by notice, not to (») Ade v. Montague (1858), 1 F. the servant, but to the tradesman, k F. 'Hii. and that it is not enough to do so [y) 2 Sm. L. C. 8th ed. 360. merely by notice to the servant ; yet 250 THE LAW OF JIASTER AND SERVANT. ArrENDIX A. Authority. Xiclcson V. Brolian (1713), 10 Mod. 109 ; master frcnt a clerk \\\\o lia<] the i^eiieral laanagemeiit of his casli concenis with a note to a banker to receive money or hank bills, and the servant got another ])erson to give him fur tlie note a draft upon tlie banker. Tlie banker failed lief ore the draft was pre- sented : the master liable on the ground that a servant, by trans- acting affairs for his master there- by derives a general authority and credit from him. Hazard v. Treadwell (1722), 1 Str. 506. Master sent Avaternian to plaintifi' to buy iron on credit, and paid for it afterwarels ; sent the same "waterman a second time witli money ; the waterman re- ceived the goods, but did not pay the money. Heltjear v. HairJie (1803), 5 Esp. 71. Person not a horse-dealer sent his servant to 2\dtersairs witli horse for sale, witli instructions to warrant sound ; servant war- ranted free from vice ; " servant entrusted to do all that he can to eflectuate the sale." Ellenborougli, ('.J. See, however, Brady v. I'odd, and IVoodin v. Jhirford (1834), 2 Cr. & M. 3i)l. Barrett v. Dccrc (1823), Mood. & Malk. 200. Payment to a person in a merchant's counting-house, who appears to be entrusted with the conduct of business there, good payment to the merchant though it turned out the jieison was never so employed l)y him. Tenterden, C. J. llimdl V. Sampayo (1824), 1 C & 1'. 254. J). 248. Miller V. Hamilton (1832), 5 ('. & P. 433. Paker delixered luead from Week to week. He was paid many sums by liousekeeper and receipted weekly bills lor a date No Authority. Stubhiny v. Heintz (17!)l),Peake's N. P. ()G. Master gave successive servants money to ])ay the bills once a week ; one servant did not ]iay the bills but bought meat on credit for herself. Master not liable. Pcarce v. lioyers (1800), 3 Esp. 214. Plaintiff sued for ])rice of beer supjilied todefendants family. Defendant dealt with ^daintitf for porter used by his family, and was in the habit of paying leady money. Hisco.i: V. (T')-t'e9acoo(/(1802),4Esp. 174. See p. 247. Maunder v. Conyers (1817), 2 Stark. 281. A master not re- sponsible for liquors ordered by his butler in the name of his master without authority, unless he has been in the habit of jxiying for goods ordered by the butler. Ellen- borough, C J. Waters \. Broyden {1821 \ 1 Y. & J. 457. Clieque given by B. to liis bailiff to give to C, in whose favour it was drawn ; no autliority in bailiff to discount the cheque with A. Sanderson v. Bell (1834), 2 C"r. ^; M. 304. Semblc, payment to an apprentice in master's counting- house not in the usual course of business is not a good payment to the master. Hanicr v. Berkeley (183«i) 7 C. it P. 413. A. ordered of P. two suits of livery a year for lier coacliman. At the request of the coachman, ]j. sup])lied plain clothes instead of one of tlie suits ; P. could re- cover onlv for livery supplied. ylf(;//v.''j'''min'(1840), 7 M. ikW. 151. Payment to country agent of insurance company after ])eriod for payment ; no authority to vary time of ]>ayment. Metcalfe v. Lumsden (1844), 1 C. & K. 309. An authority to a servant's authority as to contracts. 251 Author I TV. after the time lor wliii'h lioiiEie- keeper paid liim ; (U't'emlaiit liable, as he did not prove he had given to housekeeper money to pay. Smith V. Jllall dlnss Co. (1852), 11 C. B. 897. Defendants liable for goods supplied to them on the orders of manager, appointed to superintend and transact, under the control of the directors, the manufacturing business of the company, " although no express delegation of authority."' So Tut- terdell v. Farcham Jilue Brick Co. (18G6), 35 L. J. C. P. 278 ; Geuke V. Jackson {18(J1), 36 L. J. C. P. 108. Summers v. Solomon (1857), 7 E. & B. 879. Defendant, who resided near London, had a jewellei-'s shop at Lewes managed by A., who gave orders at Lewes for articles to be sent to the shop. Plaintiff, who resided in London, sent articles by A.'s orders to Lewes. A. ran aAvay from Lewes, came to Lon- don, verbally ordered articles of jewellery, and took them away, telling plaintitf he was going to take them to Lewes. Plaintitf had no notice of withdrawal of agency. Held, that there was evidence upon which the jury might find A. to be defendant's general manager. But see 3 H. & N. 794. Smith V. McGnire (1858), 3 H. & N. 501 ; 27 L. J. Ex. 465. De- fendant liable on charter-party signed by person whom he had left in charge of his business, although that person signed " per pro," and had received special in- structions, which he exceeded. Howard v. Sheicard (1866), 12 Jnr. N. S. 1015 ; 36 L. J. C. P. 42 ; L. R. 2 C. P. 148. p. 245. IFalker v. Great JVestern Rtj Co. (1867), L. R. 2 Ex. 228 ; 36 L. J. Ex. 123 ; 16 L. T. N. S. 327. Defendants liable for services of surgeon employed by their general manager to perform an operation No Authority. servant, a common diover, to sell in market overt ; not general authority to sell elsewhere. — Rolfe, B. Cox v. Midland Rtj. Co. (1849), 3 Ex. 268. Defendants not liable i'or surgical attendance on injured passengers ordered by station- master. But query. To same ef- fect, Montgomery v. North British By. Co. (1878), 5 R. 796. 2.") 2 THE LAW OF MASTER AND SERVANT. Authority. No Authority. on a servant iujured by an ac- cident. Langan v. Great Western Ry. Co. (1874), 30 L. T. N. S. 173, Ex. Cli., atlirminu 26 L. T. N. S. 077 ; !>. 245. Beer V. London ct- Paris Hotel Co. (1875), L. B. 20 Ecj. 412. Secretary of conipauy authorised agent to execute contract of sale, both within Statute of Frauds and Coiupauies Act, 18G7. As to servant's authority to give receipts, Thorohl v. Smith (1700), 1 1 j\Iod. 87 ; Bridges v. Garrett (18G9), 38 L. J. C. P. 242 ; and C'ole)rucn^v. Eiehes (1855), 16 C. B. 104. As to tender to servant being ec^uivalent to tender to master, Mqffatt v. Parsons (1814), 5 Taunt. 307 ; and Wilmott v. Smith (1828), Mood. & Malk. 238. As to admissions by servants. Garth v. Howard (1832), 8 Bing. 451 ; and Great Western Ry. Co. v. Willis (1865), 34 L. J. Ch. 195. CHAPTER XXVIT. servants' liability to third persons. Servants iuciir no liability on contracts made throngh them if they contract as their masters' agents. Servants are subject to the ordinary liabilities of agents. They are not Hable if they contract as agents, but if they contract as principals — if they pledge their own credit, if they exceed their authority, or if they contract without authority, they are personally answerable (a). If, in entering into a contract, a servant do not disclose the fact that he is acting for his master, those with whom he deals may sue either him or his master. To whom credit was given will be a question for a jury if the servant be sued (6). The settled principle is that " persons who induce others to act on the supposition that they have authority to enter into a binding contract on behalf of third persons, on it turning out that they have no such authority, may l)e sued for damages for the breach of an implied warranty of authority " (c). (a) Ch/^rry V. Bank of Australasia vian v. Junes, 9 Jiir. (1845), 454. (1869), 38 L. J. r. C. 49 ; 17 W. K. Apparently, according to tlie autlio- 1031 ; Story on Agencj^ sec. 264. rities, a servant would be ro.spoii.sible {b) Fisher v. Marsh, 34 L. J. Q. P.. when lie entered into a contract under 177. the belief, bond fide but erroneous, (c) Cockburn, C.J. in Jtidiardson that he had authority ; Pianddl v. V. WilliamsLm (1871), L. K. 6 Q. B. Trimm (1856), 18 C. B. 786 : 25 L. p. 279, and 40 L. J. Q. B. 145, re- J. C. P. 307 ; Smoutv. Ilbimj (1842), ferring to Collcn v. Wriqht, 7 E. & 10 M. & W. 1 ; Kehicr v. Baxter B. 301 ; 26 L. J. Q. B. 47 ; 8 E. & (1866), L. E. 2 C. P. 174. B. 647 ; 27 L. J. Q. B. 215 ; Doiun- 254 THE LAW OF MASTER AND SERVANT. Torts. A servant is not liable to tliird persons for negli- gence or acts of non-feasance or omission, but he is liable for acts of misfeasance. This distinction has been established since 1701, when it was stated by Holt, C. J., in Lane v. Cotton (d). It has been justified on various grounds. Thus, it is said that it is a consequence of the fact that there is no privity between the servant and the party injured. "In respect to non- feasances, or mere neglects in the performance of duty, the responsibility must therefore arise from some express or implied obligation between particular parties standing in privity of law or contract with each other, and no man is bound to answer for any such violations of duty or obliga- tion except to those to whom he has become directly bound or amenable for his conduct " (e). When a servant sold goods wrongfully or, in other words, was guilty of conversion, he was held liable as a tort feasor, and he was not excused because he disposed of them for his {d) 12 Mod. 488. The exact limits omissions of duty in the course of his of the doctrine arc hard to define, employment." A servant keeping the and the authorities are not at one. key of a room in wliicli he knows a Mr. Wood thus states the rule recog- man is imprisoned, is snid to be a iiised in America at p. 674 of his trespasser; Bro. Abrd. "Trespass," "Lawof Master and Servant": "Tlie 133, 256. The true distinction is servant is never liable to third ])er- perhaps not between misfeasance sons for his failure to perform his and nonfeasance, but between duties master's obligations ; but for his own arising solely out of contracts, and wrongful or iiegligent acts he is liable duties which the law will imply, to third persons injured thereby, indei)endently of any contract. See either alone or jointly with his J)irkson v. Heutcr's 'Telegraph Co. master." Mr. Wharton, on the other (1877), L. R. 2 C. P. D. 602; 46 hand, states that the servant is not L. .1. C. V. 197 ; 35 L. T. 842 ; liable where there is negligence, but L. K. 3 C. V. D. 1 ; 47 L. J. C. is so when malice exists. Story thus I'. 1 ; 37 L. T. 370 ; Alton v. Mid- states the rule : "The agent is also land Ry. Co. (1865), 19 0. B. N. personally liable to third persons for S. 213; 34 L. J. C. P. 292; and liis own misfeasances and positive I'lnyford v. United Kiiuidom Electric wrongs ; but he is not in general (for Telegraph Co., L. K. 4 Q. B. 706. thfre'are exceptions) liable to third {r) Story on Agency, sec. 309. persons for his own nonfeasance or servants' liability Tf) THIRD PERSONS. 255 master's use (/<-). So, too, a servant was held guilty of con- version of certain goods in the following circumstances : the goods of a bankrupt were sent after bankruptcy to the de- fendant, a clerk in the employment of one Heathcote, and the defendant delivered them to Heathcote. The clerk, it was held, was guilty of conversion, though he acted from unavoidable ignorance, and for his master's benefit (l). On the other hand, refusal by a servant of an insurance com- pany to deliver up to the j^laintiff goods, the property of the plaintiff, in a warehouse, of which the servant kept the keys, was not conversion (Jc). It has been already stated that a servant who executes un- lawful orders will be liable. Individual expressions to the contrary in old reports cannot be regarded as law (/). " Can it be maintained as a proposition of law," said Westbury, L. C, in Cidlen v. Thomj^son's trustees (m), " that a servant who knowingly joins with and assists his master in the commission of a fraud, is not civilly respon- sible for the consequences ? All persons directly concerned in the commission of a fraud are to be treated as principals. No party can be permitted to excuse himself on the ground (/() Perkins v. Smith (1752), and Lee v. Baycfi (1856), 18 C. B. S;iyer, 40. 607. In the last mentioned case, (i) Cary\. JFcbstcr {1716), 1 Stra. Jervis, C.J., observed: "As between 480. An action against a clerk by a master and servant, or perhaps as jK'rson who liad paid him money ; between principal and agent, where the defendant had paid it over to his the servant or agent receives from employer, but did not make further his master or his principal goods, entry ; no action. But if he had not which belong to a tliird person, on paid it over, the plaintiff would have their being demanded of him by such had his ojitiou cither to charge liim third person, he is entitled to say : or the company. " A conclusion no ' I received them from my master or doubt correct, whatever may be my principal ; and I re(|uire a rea- thought of the reason that the sonable time to ascertain whether plaintiff ' may charge ' the servant, the party making the demand is the because till the money is paid over, real owner;' and such (jualified re- the servant receives it to his use." fusal would not be evitlence of a Stcj)hcns V. Elwall (1815), 4 ^I. & conversion, so as to render him S. 259 ; Craneh v. White (1835), liable." 1 Scott, ;U4. AVhat would be con- {k) Alexander v. Southe;/ (1821), version in a principal may not be 5 B. k Aid. 247. such in a servant. See Mires v. {!) Story on Agency, see 310. Solebay, 2 Jlod. 245 ; Alexander v. \m) (1862), 4 Macq. 424 ; R. y Southeij (1821), 5 B. & Aid. 247; 2f utters {ISQ5), Si L. J. -M. C. 5i. 256 THE LAW OF JfASTER AND SERVANT. that lie acted as the servant of another ; and the reason is plain, for the contract of agency or of service cannot impose any obligation on the agent or servant to commit or assist in connnitting a fraud." In Mill V. Hairke {n), it was held that a surveyor required b}' statute to obey the orders of a higlnvay board Avas liable for trespasses committed in the course of obeying the orders of the Board. So, too, it is said that if a clerk of works who superintends the erection of buildings give directions which result in the darkening of ancient lights, he will be liable (o). It is laid down in an American case ( 2^) that one servant cannot maintain an action against another for negligence, while they are engaged in a common employment ; and in Southcote V. Stanley (q), there is a dictum by Pollock, C. B., to the same effect. But the reasoning upon which this decision proceeds is open to question, and has never been acted upon in this country. A master who suffers damage by reason of his servant's negligence or misconduct may, of course, bring an action against him (r). (n) (1875), Ti. R. 10 Kx. 92; 44 (r) C'ountrs.t of Snlo}i v. Crompton L. J. Ex. 49. (ItJOO), Croke, Eliz. 7o7 (action of (o) Wihonx. Pc SERVANT. business " {g) ; " for negligences and omissions of duty of their servant, in all cases within the scope of his employ- ment " (/t), "ill the ordinary course of business " (i), "in the course of the exercise of their duties " (/,), "in the course of the service and for his (the master's) benefit" {I), in the master's business and " within the scope of the pro- bable authority which must be supposed to be given to the servant " (m), " within the scope of the power or confidence reposed in the servant" {n), or "in the particular or general employment of a servant" (o). All of these expressions are somewhat ambiguous, though they have been elucidated in a long series of decisions. They arc various modes of express- in^r the fact that, in the case of masters of servants, the maxim, culjm tenet suos auctores, does not hold good ; that there is an exception to the general rule, that no one is responsible for any conduct but his own ; and that masters are answerable to third parties or strangers for the acts of their servants when engaged in or about their business (2))- This liability is not confined to acts of negligence, though they are the torts for which masters are most frequently held responsible. The liability extends to all other torts — for example, to fraud — if committed within the scope of a ser- vant's duties. The rule which is now established is, to quote the words of Willes, J., in Bariulch v. The EmjlhU Jolnt-Stod; Banh{q)— an action against a bank for fraudulent misrepresentation on the part of its manager—" that the master is answerable for every such wrong of the .servant or agent as is committed in the course of the service and for the master's benefit, though {g) Cockburn, C.J., in ratten v. Ilea IJ. 2 Ex. 2.59. (1857), 2C. 15. N. S. 607. {m) T.aylcy, J., in A.-G. v. Sid- (h) Story on Agency, s. 423. (Jo,i (1830), 1 Tyr. 41. , , , (t) Edimrds v. London and Nortli- {n) Mechanics Bank v. The Bank Wrslcrn Rv. Co. (1870), L. K. :> V. of Columhui, 5 Whcaton, 326. p_ 44.5 '' ■ („) Morkrnzir. v. MacLeod (1834), \k) Walker \. South- Westcni By. 10 I5ing. 385. Co. (1870), li. R. Tj C. p. 640. (;') See Appendix ?.. as to reasons {,1) Willes. J., in Barvick v. for the rule. English Joint Stock Bank (18G7), L. ('/) (18<^7) L. 1!. 2 Ex. 259. MASTElfs LI.VDILITY' TO TIIIKl) PERSONS. 250 no express coniniand or privity of the master bo proved." This statement of the law has not been universally or readily acquiesced in. Several judges have been reluctant to admit that it is true of certain torts, a.nd in particular of fraud. AVhy should A. be responsible for the false statements of B, which he never in fact authorised, and which may be contrary to his wishes ? Fraud without any fraudulent mind in the person who is made answerable for it, seems nonsensical. '•' I do not understand legal fraud," said Bramwell, L. J., in Weir v. Bell (r) ; "to my mind it has no mora meaning than legal heat or legal cold, legal light or legal shade." It is, however, too late to question the doctrine stated in Barwick v. English Joint- Stock Bank. It is in accordance with a long series of decisions beginning with Hern v. Nichols (s). Mr. Justice Willes's statement of the law has frequently been cited with approval (t) ; and it has been acted upon more than once by the House of Lords and the Privy Council (u). The doctrine may rest upon a fiction ; but if so, it is a fiction in accordance with others which are well recognised — the doctrine, for example, that notice to the agent may be notice to the principal, and that a servant's know- ledge may sometimes bo treated as the master's {x). It is as easy to admit that A., though morally innocent, is legally guilt}'- of fraud through his servant or agent, as it is to admit that A. has been negligent throagh his servants, when in point of fact he has not been wanting in prudence, and when they have done in their folly that which he in his wisdom forbade. The rule just stated applies to corporations or companies. (?•) (1877), L. R. 3 Ex. D. 238. Steavi Navigation Co. (1864), 33 L. (a-) (1701), 1 Salk. 289. J. Q. 15. 310 ; 10 L. T. N. S. 844 ; [t) Mackayv. Commercial Bank of 12 W. R. 1080 ; 10 Jur. N. S. 1199 New Brunswick (19>1 i), L. R. 5 P. C. In his criticism of tho judgment in .H94 ; Sioift V. Wintcrbotham (1873), Barwick v. The Enrjlish Joint-Stock L. R. 8 Q. B. 244. Bank, Bramwell, L.J., suggests as (u) Bank of New South Wales v. "the true ground," " tliat every Owston (1879), L. R. 4 Ap. 270; and person who authorises another to act Houldsworth v. City of Glasgow Bank for him in the making of" any con- (1880), L. R. 5 Ap. 317. tract, undertakes for the a])sence of (./:) Baldwin v. Cassell'X (1872), fraud in the execution of the autho- L. R. 7 Ex. 325; Stiles v. Cardiff rity given." s 2 260 THE LAW OF MASTEPw AND SEKVANT. It extends to companies or corporations — such as Dock Trusts— entrusted by the State with the performance of cer- tain (Uitics, althongh the revenues are not appropriated to the use of the individual corporators, or to that of the cor- poration itself (?/). Companies have been held responsible for creating a nuisance, such as obstructing a highway (z) ; for publishing by telegram a libel (a) ; for wrongful arrests or malicious prosecutions (b) ; for wrongful detaining bank notes (c) ; for wrongful assault by their servant (e) ; for reckless driving (/) ; and for infringing a patent (g). There was a reluctance, especially in the Chancery Courts, to impute to companies the frauds of their directors or ser- vants. How could directors, it was asked, be the agents of the company, their employer, to cheat or deceive ? In Re North of England Joint-Stock BanJcing Company, ex parte Bernard (h), Parker, V.-C, said that they could not be the company's agents for that purpose. So in Dodgson's Gase{i), Knight-Bruce, V.-C, said, that " whatever fraud there may be, if fraud there be, it is charged against the directors, who cannot be the agents of the body of shareholders to commit a fraud." Similar expressions were used by Page Wood, V.-C, in Re Athencewm Assurance Com2ximj {k) ; Romilly, M.R, in Duranty's Case (I) ; Lord Chelmsford in Re Hull and London Life Assurance Company (m). In the Western Bank of Scotlccnd v. Addie (n), decided in 1SG7, Lord Cran- worth said, "An attentive consideration of the cases has (y) Mersey Bock Trustees v. Gihhs Broom (1851), G Ex. 314 ; Baylcy v. (1866), L. R. 1 H. of L. 93. Manchester Ry. Co. (1873), L. 1{. 8 (z) R. V. Great North of England C. P. 148. Ry. Co. (1846), 9 Q. 15. 315. (/) Orecn\. London General Om- (a) Whitfirldv. South- Eastern Ry. nibiis Co. (1859), 7 C. B. N. S. 290. Co. (1858), "E. 11 k E. 115 ; 27 L. J. {g) Retts r. JJc Vitre (1868), L. Q. B. 229. See also R. v. City oj R. 3 Ch. 429. London, cited in note to Whitfield v. (h) (1852) 5 Do G. & Sm. 283 ; 21 South- Eastern Ry. Co. L. J. ('h. 468. (h) Edivards v. Midland Ry. Co. (i) (1849), 3 De G. k Sm. 85. (1880), L. K. 6 Q. B. D. 287. (k) (1859), John. 451. (c) Yarlwrough v. Ban/c of Eng- (/) (1858) 26 Beav. 268 land (1812), 16 East. 6. (w) (1858), 2 De (!. .^ J. 275. (c) Eastern Counties Ry. Co. v. («) L. K. 1 S. & D. 145. master's liability to tuiud persons. 2G1 convinced nic that the true principle is, that these large cor- porate bodies, through whose agencies so large a portion of the business of the country is now carried ou, may be made responsible for the frauds of those agents to the extent to which the companies have profited from those frauds ; but that they cannot be sued as wrong-doers, by imputing to them the misconduct of those whom they have employed." In Common Law pleading the fraud of the agent was treated by a sort of fiction as the fraud of the principal. Courts of Common Law were therefore more disposed to entertain the view that a company might be sued for its servants' or agents' fraud. Courts of Equity were familiar with the doctrine that a principal, though innocent, might suffer for the fraud of an agent to the extent to which he was benefited thereby (o). They were, therefore, disposed to confine the liability of companies for the fraudulent repre- sentations of directors to those cases in which the former were benefited. It is submitted that the words cited above from the judgment of Willes, J., express the true rule. Strange though it may seem to attribute malice, fraud, or an intention of any kind to a corporation, practical exigencies have required the law to be moulded so as to meet the de- velopment of joint-stock enterprise. Not finding a remedy to hand, the Courts have made one (o). (o) See remarks of Sclborne, L. C, Xurth of England liy. Co. (1846), in Eouldsu-urth v. Oily of Glasgow 9 Q. B. 314 ; 11. v. Scott (1842), 3 Bank (188U), L. B. 5 Ap. 326 ; Lord Q. 13. 547. Some judges iu modern Westbury in Conybcnre v. New times have adhered to the old doc- Brunswick Ry. Co. (1862), 9 H. of L. trine in regard to acts wliich appeared C. 725 ; Sh- Montague Smith in to imply malice, e.g., Aldersou, B., Mackay v. Commercial Bank of Kcv: in Stevens v. Midland Counties By. Brunswick, L. R. 5 P. C. 411. Co. (1854), 10 Ex. 352. See, how- It was once doubtful whether any ever, Henderson v. Midland By. Co. action for trespass lay against a (1871), 20 W. R. 23 ; Edwards v. corporation, Kyd. 1,223. Intres])ass, Midland By. Co. (1881), L. R. 6 Q. capias and exigent are the proper B. D. 27 ; Whitfield v. South- processes. How, it was argued, could Eastern By. Co. (1858), E. B. & E. they be eiuploved against a corpora- 122 ; Green v. Lomlon General Omni- tion? Similarly Holt, (A J., laid it hus Co. (1859), 7 C. B. N. S. 290. down that a corixiratiun was not in- The fact is that the law has been dictable, 12 Mod. 559. Tliecon- altered, and that various hctions have rary is now clear ; B v. Great been resorted to in order to conceal 2G2 THE LAW OF JIASTEll AND bEKVANT. One wlio employs a contractor to execute a work incurs no liability (except in the cases mentioned below) for the acts of the contractor, or sub-contractor, or his servants. This principle has been at length firmly established. But it was not at once adopted. There was for a long time a disposi- tion to extend the liability of persons who set on foot or ordered the execution of works to the negligent or other tortious acts of contractors. It was not until after mach discussion that the doctrine which is now recognised was adopted. Thus it was supposed that owners of fixed property, as distinguished from movable chattels, were liable for acts done thereon, even though not done by their servants. It was thought to be highly convenient that the owner of a house or other real property should be responsible for all injuries done in the course of work on his property or for his benefit (^9). Persons who employed contractors were in some of the early cases made responsible for the acts of the latter ; bailors answered for bailees. Now, however, it is well settled, subject to the excep- tions hereafter stated, that an employer is not answerable for the conduct of a contractor, a sub-contractor, and their ser- vants ; and the only difficulty is in distinguishing in practice contractors from servants. The defendants in Pcachey v. Roicland(q), entered with two the change. As an instance of such (]>) Bush v. Steinman (1799), 1 fictions, the following may be citcil : ]>. & P. 404. (A. who had a "A railroad coiiioration is to be re- liouse by the wayside, engaged 1*>. to gardcd as constructively present in repair it. B. contracted with C, all acts jierfornied by its agents and and C with D. to iurnish the servants within the range of the ordi- materials. Tiie servant of D. placed nary emiiloymcnts. " Wharton on a (juantity of lime on the road, ^Negligence, H. 158. It is not every wliereby jiiaintifr was injured. A. fraud of a servant or agent for whieii held answerable on the ground a master oi- principal will be answt'r- acrordiiig to Eyre, C. J., stated above, able. See 6'//rs V. Norirmi ; Jiiirncs This case was (juestioncd in 6'^?/- V. Pcnndl (1849), 2 H. of L. 497; jWdx. KHwlh (1854), 9 E.x. 702, Colnnan v. Jlkhcs (1855), 16 C". V>. and di.sajipioved of in manv other 104 ; 1 Jur. N. S. 376 ; 24 L. J. C. cases. P. 125. Almost all the authorities (7) (1853), 13 C. 15. 182 ; 22 L. .T. arc collected in the argument in C. 1'. 81; 17 Jur. 764. No notice is Jloiilds-uorthx.City of ClUisfjuw Ilinik taken in the judgment of the fact (1880), L. It. 5 Ap. 317. that one of the defendants saw the master's liability to TIIIKl) PERSONS. 203 contractors into a contract, by ^vliicli they agreed to construct a drain in the road in connexion with the houses of tlie defencUints. The contractors employed A. to excavate and fill in the work. A. did this negligently ; and the plaintiff was thereby injured. Yet the defendants were not liable ; A. not being the servant of the defendants, and the con- tractors having been employed by them to do a lawful work. So, too, in the leading case of Meedie v. The London and North- Wedei-ii Raihuay Gomixiny {r). The defendants en- gaged a contractor to construct a portion of their railway, but reserved the right to the company to dismiss any incompetent workmen. Through the negligence of the workmen of the contractor, a stone fell upon the plaintiff's husband, who was passing under a bridge, and killed him. The company were exonerated from liability. In another case, Ilapson v. Ciibitt (s), the defendant, a builder, was employed by the committee of a club to do certain work, including the putting up of gas-fittings at a club-house. He made a sub- improper maniu-r iu wliich the work a bullock from SmitliKeld. The was being done. drover employed a boy, and, Ijy the (»•) (1849), i Ex. 244. See also negligence of the latter, tlie plain- Knifjht V. Fox (1850), 5 Ex. 721. titf's property was injured.) Ovcrtwb (A. contracted with a railway com- v. Freeman (1852), 11 C. B. 867. pany to complete a portion of their (Defendants contracted with parish line' B. contracted with A. to erect officers to pave certain streets, and a bridge. B. had in his service C, entered into a sub-contract with W., who acted as general servant of B., who agreed to lay the curb-stone and as his surveyor. B. entered into under the superintendence of the sui-- a contract with C, by which the veyor of the local commissioners, latter was to supply scafiblding for The stones were supplied by the de- the bridge, the defendant, B., to pro- fendants, and brouglit to the spot by vide the requisite materials and tlicm. Some of them wen; placed in lights. One of the poles of the tlie pathway by workmen eniployed scaffolding improperly projected on and paid by W. I'laintill injured the footway. In consequence of this, by falling over the stones ; the de- and owing to the want of sufficient fendants not hable.) Cuthbcrtson v. light, D. was injured. No action Parsons (1852), 12 0. B. 304 ; Steel by D. lay against B. The circum- v. Soulh-Ecistern Ry. Co. (1855), 16 stance that 0. was the general ser- C. B. 550; Broicn v. Accriiujton vant of B. did not the less make him Cotton Co. (1865), 3 H. & C. 511 ; a contractor in regard to the scaffold- Taylor v. Greenhaigh (1874), L. R. ing.) 9 Q. B, 487 ; 43 L. J. Q. B. 168. For (s) (1842), 9 M. & AV. 710. a clear statement of the law, see Milliganw. TFcdijc (ISiO), 12 A. & Wigclow, C.,h, in Sproid v. Hcmviing- E. 737. (The defendant, a butcher, waij, 14 Pick. Mass. 1. employed a licensed drover to drive 264 THE LAW OF MASTER AND SERVANT. contract with a gasfitter to execute this part of the work. An explosion of gas took pLace by reason of the carelessness of the latter, and the plaintiff was injured. Yet no action lay against the defendant. A person who employs a contractor to do work which is necessarily unlawful is liable for the acts of the contractor. In such a case the contractor's acts are really his em- ployer's. The latter has done just what he was ordered to do, and that Avhich was ordei'ed was itself wrong. A gas company, for example, entered into a contract with W., to open trenches and lay their mains in the streets of Sheffield. W. employed men to do the work. They left a heap of work and stones in such a position that the plaintiff fell over them and was injured. The company were responsible inasmuch as they had no right to make excavations in the streets (x). Distinguishing the case from Peachey v. Roiv- land (y), Overton v. Freeman (s), and other cases in which employers of contractors were exonerated, Lord Campbell observed, " In these cases nothing was ordered except what the person giving the order had a right to order, and the contract was to do what was legal, and the employer was held properly not liable for what the contractor did negligently, the relation of master and servant not existing. But here the defendants employ a contractor to do that which was unlawful, and an act done in consequence of sucli emi^loyment is tiie cause of the injury for which the action is brought. It is simply the case of persons employing another to do an unlawful act, and a damage to the plaintiff from the doing of such unlawful act." Sometimes the distinction is put in (x) Ellis V. Sheffidd Gas Co. J. C. P. 81 ; 17 Jur. 764. (1853), 23 J.. J. N. S. Q. B. 42. {z) See note (a). (2/) (1853), 13 (J. B. 182 ; 22 L. master's liability to third persons. 205 another way. It is said that, when tlio act whicli was ordered caused the injury, the person Avho gave the order is liable. When the cause of action is something- collateral, done in the course of the work, the responsibility rests with the contractor. If the contractor have done in an improper manner that which might well have been done in a proper manner, there is no redress against the person who set the contractor in motion. The owner of a house employed a builder to take down and reconstruct the front. The contractor removed a brest-summer inserted in a party-wall, without taking proper care to shore up the adjoining house. The emploj'^er was not bound to make good the damages. He had a right to suppose that the builder would take ordinary precautions (ct). A person who employs a contractor to execute work is liable for the nonperformance of duties which the former is bound at Common Law or by Statute to fulfil. This is scarcely distinguishable from the last class of cases. At Common Law there is a duty incumbent upon persons not to have their house or premises in such a state as to be a nuisance or to be dangerous to passers by, and they will not be heard to say that they entrusted the performance of their duty to an independent contractor, and that they are not answerable for what has befallen travellers or passers by. This is illustrated by Pidxtrd v. Smith (&). A passenger by a railway train fell into the coal-cellar of a refreshment room at a railway station ; the servants of a coal merchant had been putting coals into the cellar and had negli- gently left the trap-door open and unguarded. The lessee and occupant of the refreshment room was held liable to the (a) Butler v. Hunter (1862), 7 H. Co. (1872), 9 S. L. R. 254. Pick- Si N. 826 ; 31 L. J. Ex. 214 ; Hole v. ard v. Smith is sometimes iiuoted as Sittinghonrne Ry. Co., 2 E. & B. 767. if reaffirming the principle stated in {h) (1861), 10 C. B. K S. 470; Bush v. Stcinman. It; is submitted 4^ L. T. N. S. 470 ; and compare tliat tlie principle of the former in no Nisbett V. Dixon (1852), 14 D. way peculiarly refers to real property 973, and Grant v. West Calder Oil 2CG THE LAW OF MASTER AND SERVANT. plaintiff on the ground that the eraploymeut of an indepen- dent contractor did not absolve him from the duty of taking reasonable precautions to prevent mischief from the opening of the trap-door. The duty was incumbent upon the lessee, and he was liable for its non-fulfilment. For similar reasons, one who is bound by statute to perform certain duties cannot shield himself from responsibility by employing a competent contractor. His duty is to do the particular thing which the Legislature ordered — not merely to do his best to perform it. A company was authorised by a private Act of Parliament to construct a bridge which opened, and it w\as bound by the Act not to detain vessels navigating the river longer than was required to allow carriages, &c., to cross. A vessel having been delayed for a longer period owing to a defect in the construction of the bridge, it was held to be no defence to an action against the company that it had employed a competent contractor (c). A person who employs a contractor to do work which is lawful, but which is dangerous, and is likely in the natural com-se of things to cause injury, is liable, if injuries result therefrom. This principle — which is really only an instance of the last — may be collected from Bower v. Peate ((/), Tarry v. (c) Hole V. Sittinqhournc Ry. Co. (d) (1876), L. 1\. 1 (,). B. L). 321 ; •!') (1861), 6 H. & N. 488 ; 30 L. J. Ex. L. .1. Q. J5. 446. Tlie rosemblaiice 81. This is stated in .some judg- between this case and Biillcr v. ments to be in ])iinciple the same as Hunter — which does not seem to Ellis V. Slicjjldd Gas Co., idrcady liave been referred to in the argii- nientioned, but in the hitter the con- nient — is close. The iinal gronnd tractor was emjiloyed to do wliat upon wliicli tlie Court pul tiieir de- must liave been a nuisance. See also cision in JUnrcrw I'catc was, " that a Oray \. J'lillr/i, (ISdi), .'» ]}. & E. man who orders a work to be executed, 971 ; 32 L. J. Q. 15. 169 ; 34 L. J. from which, in the natural course of Q. B. 265. (Defendants being em- things, injurious conseciuences 1o ])owered under a Local Manage- his neighbour must be expected to inent Act to make a drain, employed arise, unle.'is means are ado])led by a contractor, who negligently exe- which such consojuences may be cuted the work ; held liable.) ////"?/(« j)reventcd, is bound to .see to the V. IFchstcr ilS67), 36 L. J. Q. 15. 166 ; doing of that which is necessary to Wood on Master and Servant, 626. i)rcvent the mischief, and cannot MASTIin's LIAI'-ILITY TO TIIlIll) TKItSONS. 207 Asldon (e), Angus v. Dalton (/). In the first of these cases the plaintiff and the defendant were owners of two adjoining houses, and the plaintiff was entitled to the support for his house of the defendant's land. The defendant employed a contractor to pull down his house, excavate the foundations of it, and to rebuild it. The contractor under- took the risk of supporting the plaintiff's house, as far as might be necessary, during the work, and to make good any damage and satisfy any claims arising therefrom. The means taken by the contractor to support the house Avere insufficient ; it was injured ; and the defendant was held liable. These cases need not be taken to re-affirra the doctrine stated in Bush V. Steinman ig). They merely lay it down that no one can escape from the consequences of interfering with or endangering a neighbour's right of support or of ordering work dangerous to others by handing over the execution of it to a contractor. relieve himself of liis responsibility by employing someone else — whether it be the contractor employed to do the work from which tlie danger arises, or some independent person — to do what is necessary to ]irevent the act he has ordered to be done from becoming wrongful. There is an obvious difl'erence between commit- ting work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preven- tive measures are adopted." All this seems applicable to Butler v. Hunter. See also Fcrcival v. Hughes (1882), L. R. 9 Q. B. D. 441 ; 51 L. J. Q. B. 338 ; 46 L. T. N. S. 677. (De- fendant, owner of a house adjoining to the liousc of plaintilf, employed a compietcnt architect and contractor to rebuild former ; the workmen of the contractor negligent!}' and with- out the knowledge of the defendant, cut into a party wall to fix a stair- case, whereby the plaintiffs house fell ; defendant liable, though the contractors were competent, and though the fixing of the staircase was not in itself a hazardous opera- tion. Holker, L. J., dissented). The majority of the judges of the Court of Appeal appear to ])ut their decision on the ground that the fixing of the staircase was part of a hazardous operation ; but, as Holker, L. J., pointed out, the hazardous part of the operation was over before the fixing of tlie staircase was commenced. (e) (1876), L. K. 1 Q. B. D. 314 ; 45 L. J. Q. B. 260. (Defendant, lessee and occupier of a house ; from the front of it projected a heavy lamp, which fell upon and injured the plaintiff. The detV-ndant employed an experienced gas-fitter, through whose careles-sness the lamp was loosened ; held that the defendant was liable.) (/) (1877), L. R. 3Q. B. D. 85 ; 4 Q. B. D. 162 ; 6 Ap. 746. ((/) See note, p. 262. 268 THE LAW OF MASTER AND SERVANT. A person wlio employs a contractor to execute work is liable for the ^vi'ongfiil acts of the contractor if the former controls and interferes with the execution of the work. The case most frequently cited in iUustration of this pro- position is Burgess v. Gray {Jl), the facts of which were these : — A. employed B. to make a drain to communicate with the common sewer. B.'s servant left a heap of gravel on the highway, and the plaintifi' was thereby injured. Before the accident, A. had been informed that the heap was dangerous, and had promised to remove it. It also appeared that B. had charged A. a certain rate per load for the removal of the gravel ; in these circumstances the Court thought that there was evidence that A. had not abandoned the entire control of the work, and that he was consequently re- sponsible to the plaintiff. In another case a person had hired for the day a carriage. According to the decision in Laugher V. Pointer (i), he would not bo responsible for the acts of the (/() (1845), 1 C. B. 578. See also Blake v. Thirst (T863), 2 H. & C. 20 ; 32 L. J. Ex. 188. (Defend- ant, a builder, contracted with local commissioners to make a sewer, and underlet to N. the excavation and tlie brickwork at a ii.xed price per yard ; N. employed his own men, but defendant had the right of dis- missing them. In consiM]uen(o of N.'s negligence to provide a.sullicient light, plaintiff fell into an unfenced track ; held that defendant was liable. Ikit see remarks of ]\Iartin. 15.) ; Slcjthcii V. 2'hurso rolkc Cum- viissionrrs (187t)), 3 1?. 535 ; i>adlcr V. Henlock (1855), 4 E. k K. 570 ; 3 C. L. K. 760 ; 1 .Jur. N. S. 677 ; 24 L. J. Q. B. 138. (i) See p. 59 ; also Shiclls v. Kdin- buvfjh and Glasqun; A'//. Co. (1856), 18 F. 1199. (hcfcmlants provided cart, a contractor tli.- iiorse and di'iver ; defendants not liable.) In auotlier Scotch caBC — Stephen v. Thurso Police Oominissioners {187 6), 31a. at p. 542 — Lord Giflbrd made the follow- ing remarks: "The test always is, ' Had the superior personal control or power over the acting or mode of acting of the subordinate ? ' 1 use the expression ' ])ersunal control,' because 1 think tliat this is always the turn- ing point in such cases. Was there a control or direction of the person, in opposition to a mere right to object to the (]uality or description of the work done ? . . It is sometimes said that the (piestiou is, whether the relation between the immediate wrong-tloer and the defender is that of master and .servant, or employer and contractor. But these words are a litth ambiguous ; and, though they i"iiy indicate generally the rule ol law, tlic real (piestion always is, I think, who bad the control and direction of the person who did the wron;; i " master's liability to third persons. 2G9 postilions, who were the servants of the owner. But havin"- interfered with them, he was held responsible (Jc). Difference of opinion has arisen as to the precise position of drivers of cabs who are remunerated Ijy their receipts over a certain fixed sum. The question whether they are the servants of the owners of cabs, or merely bailees, has ah-eady been dealt with. The point was first considered in Morley v. Dunsco7nbe (l), and the Court there thought that the driver was a servant remunerated in a peculiar way. This view was also taken in Poivles v. Hider (m), where it was held that having regard to the 1 & 2 Will. IV., c. 22, s. 20, and C & 7 Vict. c. 86, ss. 23, 24, 27 and 28, the driver was the servant of the owner, and that the latter Avas liable to third persons for the negligence of the former. When, however, the question arose in a different form in Fowler v. Lock (n), and King v. Spurr (o), the Courts did not take the view of the relation adopted in Poivles v. Hider. It has already been stated with reference to Laugher v. Pointer, that persons who hire a carriage and servant do not thereby become responsible for the acts of the servant ; he remains the servant of the owner. In like manner the owners of ships have been held liable for the wrongful acts of their servants, even though at the time the injury was committed the vessel was chartered or hired by some other person. Thus in Balyell v. Tyrer (j)), the lessee of a ferry hired for a day a steam-tug with its crew from the defendants ; the plaintiff, who was a passenger on board the tug, was injured by the breaking of a rope, owing to the {k) McLatcghlin y. Fryo?- (18i2), 4 plaintiff; held that the warehouse- M. & G. 48; Smith v. Lamrcnce man was liable.) This case has often (18281, 2 M. & R. 1 ; Brady v. Giles been questioned ; Murplv:y v. Ca- (1835), 1 Mood. & Ro. 494. The ralU (18i)4), 3 II. & C. 462. last case cannot be regarded as a sub- (/) (1848), 11 L. T. 199. sistinif authority. '^qh^Xso llandlcson (m) (1856), 6 E. & B. 207. V. Murray (183S), 8 A. k E. 109. (A {n) (1872-74), L. R. 7 C. V. 272 ; ■warehouseman employed a master 26 L. T. 476 ; 20 W. II. 672 ; 41 L. porter to remove a barrel from his J. C. P. 99. ■warehouse; the master porter em- (o) (1881), L. R. 8 Q. R. 104. ployed his own men and tackle, (p) (1858), E. B. & E. 899 ; 28 and, through the ripgligence of the L. J. Q. B. 52. men, the barrel fell and injured the 270 THE LAW OF MASTER AND SERVANT. negligence of the crew in mooring the tug. It was held tliat the crew remained the servants of the defendants, and that they were answerable. A person is not liable for the acts of those whom he has not chosen to serve him, and whose services he is bomid by statute or otherwise to accept. This is exemplified in regard to pilots. Siiip-owners being compelled in certain circumstances to take them on board and give them the charge of their ships, are not made to suffer for a pilot's mistakes or carelessness (q). It is sometimes a question of difficulty to know when the employ- ment of a pilot is imperative, but if a vessel be under the care of a compulsory pilot he is not regarded as the servant of the owner. Indeed, the 388th section of the Merchant Shipping Act of 1854, 17 & 18 Vict. c. 104, expressly declares that " no owner or master of any ship shall be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any district where the employment of such pilot is compulsory by law." (r/) Licrcij V. Inriram (1840), 6 M. still iiitimateil his view that at k W. 302. (Owner not liable when Conimon Law the owners would not ship under conduet of a licensed hi' liable. See also llifxhic v. pilot. This case turned chiefly on Btncsfii'Id (1817), 7 Taunt. 309 ; Thr 6 Geo. IV., c. 125. "The master, AVW/./w (18(33), Br. & Lush. 199 '; r/tr- however well (lualified to conduct the lona (1807), L. K. 1 P. C. 426 •' The ship himseli", is bound, under a Velasquez (1867), L. \\. 1 P. C. 494. penalty, in a ^reat measure to SoniewJiat inconsistently, the owner divest himself of its control, and to has sometimes been reciirded as liable give up the charge to the ])ilot. Asa for t!ie contributory" negligence of necessary consequence the master the jiilot. See judgment of Lord and owners are exempted from re- Ulackburn in SJiniij/U v. Talcastlc sponsibility for acts resulting from (1881), L. R. G App. 217. It is to the mismanagement of the ])ilot.") be observed that the e.xemption does dnicral Stmm Navif/a/io>i, Cu. v. not apply when the jiilot has to be Jiritisk ami Colonial Steam Navit/a- sidecteil out of a limited class • tioa Co. (1868), L. 11. 3 Ex. 330 ; Martin v. TciDprrlcif (1S43) 4 o' (1869), L. \i. 4 Ex. 238. The 15. 298 ; and .see also The Gin/ main question here was, whether Manncrinfj (1882), L. K. 7 P. D. tlie employment of the pilot was T>2 and 132, as to a case in which the compulsory at the .spot wiiere the pilot has not control of the navigation, collision took place. ATartin, H. , master's LIAr.rLITY TO TIITTtD TERSONS. 271 In like manner the captain of a man-of-war is not ac- countable for the acts of his officers (r). So, too, as explained ill Stone V. Garhurifjld (u), a bailiff, steward, or manager is not liable for the acts of the servants whom he appoints. In Qiiariimn v. Burnett (r), it is observed by Parke, B. , that " the liability by virtue of the principle of relation of master and servant must cease where the relation itself ceases to exist ; and no other person than the master of such servant can be liable, on the simple ground that the servant is the servant of anotlior, and his act tlie act of another ; consequently, a third person entering into a contract with a master, which does not raise the relation of master and servant at all, is not thereby rendered liable." Such ex- pressions, however, must not be understood to interfere with the general rule that principals are answerable for the acts of their agents within the scope of their employment. Thus litigants may be liable for the acts of their solicitors in the course of litigation {y), and merchants for the conduct of their factors or agents (~). The responsibility of masters is but an application of a general rule (ct). Masters are liable to tliii'd persons for the conse- quences of negligence in employing incompetent servants. This question has usually arisen in actions brought by servants against masters when the defence of common employ- (r) Nichohon v. Mowi.snf (183S), S;ilk. 289; on the other hand, Luca^ 15 East, 384; hut see as to liiilnlity v. Mason (1875), L. E. 10 Kx. 251. of master of a merchant-ship, wlio is {n) As to this point, see Haselcr v. for some purposes regarded as owner, Lcmoyne (1858), 28 L. J. C. P. 103 ; Maude and Pollock, 4th Ed. i., 155 ; remarks of IJramwcll, P)., at p. 344, in Story on Agenc.y, sec. 317. Udell v. Atherlon (1861), 30 L. J. (u) (1795), 6 T. R. 411. Ex. ; Lindley on Partnership, vol. i. {x) (1840), 6 M. k W. 499, 509 ; 253 ; Wharton on Agency, .sec. 19 ; Stone V. Carticrigld, 6 T. R. 411. Story on Agencj'', sec. 308, aiid Mr. {y) Collctt V. Foder (1857), 2 H. k Green's note to sec. 451. Probably IT. 356 ; and compare Smith v. Keal the correct view is that the servant (1882), L. R. 9 Q. B. D. 340. is one kind of agent, the extent of (s) Grammar v. Nixon (1725), 1 whose authority is to be inferred from Str. 653; Hern v. Nichols (1701), 1 the nature of his emijloyment. 272 THE LAW OF MASTER AND SERVANT. ment is in question. It may, however, arise otherwise; being liable to fellow workers who suffer from their negli- gence or recklessness in employing men who have no skill, masters are not less liable to strangers (h). A master is liable for the acts of his servant done in execution of his express orders. This liability is criminal as well as civil. The act which the master has ordered is for all purposes his. In an early case Mr. Justice Foster thus explained the criminal responsi- bility of a master, who orders his servant to do that which is unlawful. " A. biddeth his servant hire somebody, no matter whom, to murder B., and furnisheth him wath money for that purpose ; the servant procureth C, a person whom A. never saw nor heard of, to do it ; is not A., who is manifestly the first mover or contriver of the murder, an accessory before the {h) Wilson V. Merry (1868), L. E. 1 S. c. B. 474 ; 41 L. J. M. C. 110. (Occui)iers of factory liable under IS & 19 Vict, c. 121, s. 12, and 23 & 24 Vict. c. 77, s. 13, for a nuisance bj- emission of smoke caused by their servants.) Mullins V. Collins (1874), L. R. 9 Q. B. 292 ; 43 L. J. M. C. 67 ; 29 L. T. N. S. 838. (A licensed victualler liable, under 35 & 36 Vict. c. 94, s. 16, sub-s. 2 ; although he had no knowledge that his servant had sujtplied drink to a constable on duty.) Bosley Y. Davies {IS7 5), L. R. 1 Q. B. D. 84 ; 45 L. .J. M. C. 27 ; 33 L. T. N. S. 528. (Appellant charged with "suffering " gaming on his licensed premises ; case sent back to the justices with an intimation * that, though actual knowlerlge of card-playing on the part of the appel- lant or his servants need not be siiown, some circuinstiinces must be proved from whicii it could be in- ferred tliat they connived at what was going on.) Bediiatr v. Baync^ (1876), L. R. 1 Q. B. D. 89. (Ap- pellant cliarged under section 17 of the Intoxicating Li(),uors Licensing Act, 1S72, 35 & 36 Vict. c. 94, with "suffi'riiis" giming to be carried on in an hotel : justices inferred that the appellant knew that gaming was in- tended to be carried on, and took T 2 270 THE LAW OF MASTER AND SERVANT. Looking to the variety of the decisions collected below, all that can be said is that there is a i^nind facie improbability against criminal liability in the absence of mens rea ; that the Legislature may, nevertheless, for public reasons, impose penalties on those who do not prevent as well as those who commit certain offences ; and that the words of each statute must determine whether a master is chargeable for acts which are unknown to him. Employers have frequently been held criminally answerable for nuisances committed by their servants. Thus in R. v. Medley (m) the directors of a gas company were indicted jointly with their servants, who conducted the works, for turning refuse into a stream. Denman, C. J., directed the jury to find the defendants guilty, though they were ignorant of what had been done. Perhaps some of such decisions were given at a time when the difference between criminal and civil responsibility had not been precisely determined. jiaiiis not to know what her guests were doing. ) jMaster not Liable. —Harrison v. LcajKr (1862), 5 L. T. X. S. 640. (Owner of a steam thresh- ing niachiiu' not liable when his servant put it, without his master's orders and contrary to the High- way Act, too near the road.) Oupfry V. Burto7i (IS70), 39 L. J. M. C. 141. (A. kept a refreshment room, and liad a notice as to penalties incurred for supplying'refre.shnients to ])ersons not travelleis during prohibited hours ; Ins servajit neglected to (pies- tion certain strangers ; "(iross negli- gence or want of j)recaution in this matter would be evidence of guilt, but there is nothing of the sort here," Wille.s, .1.) .\lr/io}s \. Hall (lS7^i), L. K. 8 V. P. 322. (To convict a person of an ofl'ence under order made in virtue of Contagious Diseases f Animal) Act, knowledge that animal is diseased, necessary. ) Ji. v. Hand- Ini (1864), 9 L. T. N. .S. 827. (To sustain conviction under b k Q Vict, c. 99, ss. 8 & 13, for employment f)f females in mines, knowledge or acrjuicsccnce must be proved.) II. V. WiVroys (1866), 4 1!. (3rd series) 656. (Sale of beer from cart on highway by a servant employed to deliver beer, for which orders had not previously been given at the brewery : no ])art of the duty of the servant to sell beer ; no evidence of servant's knowledge.) Dickevson v. Flctrhcr (1873), L. K. 9 C. P. 1 ; 43 L. J. M. C. 25. (See Mines Pegulation Act, 23 & 24 Vict. c. 151, .ss. 10 & 22.) Baker V. Carter (1878), L. K. 3 Ex. D. 132. (See Coal Mines liegulation Act, 1872, s. 51.) Under the "Wine and Beer House Acts, 1869 and 1870 (32 & 33 Vict. c. 27, s. 12, and 33 & 34 Vict. c. 29, s. 15), masters are liable for acts of ser- vants.) See also //caj-Jic v. Garton (1859), 28 L. J. M. C. 216; It v. Bishop (1880), L. P. 5 (>. 15. D. 259. (wO (1834), 6 C. & P. 202. See also R. V. Stephen (\%m), L. R. 1 i}. B. 702. (Owner of works carried on by his agents, indictable forc.-uising nuisance by depositing rubbish in a ])nblic navigalde river, though the defendant had prohibited the work- men from so depositing the rubbish.) master's liability to thiiu) persons. 277 Perliaps, too, they arc justified by the fact that proceed iii'^s for nuisances are in substance, though not in form, civil. Under this class of cases may be ranged those of which Gregory v. Piper {n) is a type. That was a case in which a servant, though careful and skilful, could not carry out the orders of his master without doing tlic mischief which was complained of A servant Avas ordered to lay down a quantity of rubbish near the plaintiff's wall and gates — which could not be done without some of the rubbish touch- ing the wall or gates ; the defendant was made answerable for the inevitable or natural consequences of his instructions. Innkeepers are at Common Law liable to their guests for loss of luggage, kc, caused by the negligence or larceny of their servants (o). But it is an answer to show that the guest has been guilty of gross negligence which has contributed to his loss (p). When a guest at an inn went to bed leaving his door ajar, and some one entered in the night and stole money from the pockets of his trousers which he had left on a chair, it was held that the proper question for a jury, was whether the loss would have occurred " if the guest had used the ordinary care that a prudent man may be reasonably expected to have taken under the circumstances " {(f). The 27 & 28 Vict. c. 41, s. 1, limits the liability of an innkeeper to i^30, except when the goods or property shall have been lost, stolen, or injured through the wilful act, default, or neglect of the innkeeper or any servant in his employ, or shall have been deposited wdth the innkeeper expressly for safe custody (?'). At Common Law common carriers are liable not only for the negligence but also for the frauds and larceny of their («.) (1829), 9 V,. k C. 591. Co. (1871), L. K. 6 C.P. 515 ; 40 L. J. (o) Kent V. IShuckard (1831), 2 B. C. P. 93 ; 25 L. T. 93. See IHxoa k Ad. 803. V. Birch (1873), L. II. 8 Ex. 135 ; (p) Cahje's Case, 8 Rep. 32 a. ; 42 L. J. Ex. 135 ; 28 L. T. 360 ; Eiohmond v. Smith (1828), 8 15. k 21 W. R. 443. (Salaried manager C. 9. not innkeeper. ) See as to defects in ((7) CashiUv. Wright (1856), 6 E. notice, Spice v. Bacon (1877), L. R. k B. 891 ; 2 Jur. X. S. 1072. 2 Ex. D. 463 ; 46 L. J. (,). B. 713 ; (r) Oppcnlceimx. White Lion Hotel 36 L. T, 896; 25 W. R. 840. 1278 THE LAW (»F MASTER AND SERVANT. servants («). Though their liability for felony on the part of their servants has been disputed, it follows from the fact of their being- insurers. The 11 Geo. IV. & 1 Will. IV. c. 68, s. 8, expressly says, " nothing in this Act shall be deemed to protect any mail contractor, stage coach proprietor, or other common 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, bookkeeper, porter, or other servant in his or their employ, nor to protect any such coachman, guard, bookkeeper, or other servant, from liability for any loss or injury occasioned by his or their own personal neglect or misconduct (0-" A master is answerable for the negligence or other tortious conduct of his servant in doing the class of acts which Ik^ Avas ordered or authorised to do. In dealing with cases of negligence or other misconduct on the part of servants coming within this category, the law has pursued a middle course. It would, on the one hand, be Avholly unreasonable to hold a master answerable for acts of his servants, the connection of which with their service was fortuitous, or exceedingly remote. No prudent man would venture to employ another if such were an incident of the contract of hiring and service. On the other hand, the responsibility of masters would be slight, the remedies of injured persons would be worth little, if a master wcjre liable only for acts Avhich he had expressly or by implication ordered. Between these two extremes, a line has been drawn ; and probably the exact character of tiie employer's responsibility cannot be more accurately defined than it is by Willes, J., in words frequently quoted (s) Brown on Law of Carriers, D. 692. As to what will be evidence .,_ 58. of stciiliufj by servant, sec (7rcat (l) As to who arc servants, sec JFesteni Ry. Co. v. Jiimcll (18.56), Mnchu V. London .t Soafh-WcsUiii 18 C. 15. .'')7r> ; i\\\A McQueen \ . Great lly Co (1848), 2 Ex. 415; 12 Jur. Wcdcrn Rii. Co. (1S7.'>), L. K. 10 Q. 501 ; 17 \.. .1. Ex. 271 ; and Way v. B. 569 ; 44 L. J. Q. B. 130. iJrrat Eaxtn-n Ry. Co., L. R. 1 Q. B. M.VSTKIl'S LIABILITY TO TIIIKD PP^RSONS. 27D with judicial approval. " He (the employer) has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in " (u). Servants are liable to err and to abuse their position. Masters must take the risk of mistakes ; they will not be heard to say, " I told my coach- man to drive slowly ; I am not answerable if he dro\e too fast." A groom who was riding his master's horse, and who was desirous of overtaking his master, spurred it recklessly as he passed a waggon ; the horse kicked and struck the wairo-oner (x) ; the master was liable for this reckless act. A coal-merchant sends his carman to deliver coals at the house of a customer ; the carman allows the coal-hole in the pave- ment to be open and unguarded ; a passer-by, faUing into the opening, is hurt ; the coal-merchant is responsible (y). A servant negligently leaves a horse and cart in the street ; a passer-by strikes the horse ; an accident occurs ; the master is liable (:;). So where a person was induced to continue to supply oats on credit to a customer of a bank on the strength of the representation of the manager, wdio fraudulently concealed the fact that a certain guarantee must be of no value, the bank was held answerable for his fraud (a). It matters not what were the instructions given to the servant as to the manner in which he ought to do his duty ; it matters not that a servant has abused his authority, exceeded or deviated from his instructions ; it will be no defence in proceedings against the master that his servant has done wrongfully that which he was ordered to do pro- perly. Thus it is no answer in an action against a company for infringement of a patent that its servants acted against (w) Barivick v. English Joint R. 2 Q. 15. D. 276. Stock Co. (1867), L. E. 2 Ex. 259 ; 36 (c) llUdgcr. Goodvin (18.31), .". C. L. J. Kx. U7. & P. 190. (.i-) iVor^Av. 6';«i7/i (1861), 4 L. T. [a) Barwick v. E)ir/Ii,sh Joint N. S. 407 ; 10 C. B. N. S. 572. Stock Co., see uotc («)• (y) Whitehy v. PrpjKr (1877), L. 280 THE LAW OF MASTER AND SERVANT. the express orders of the directors (6). It is immaterial, except so far as it helps to define the servant's duties, that he received precise instructions or that he was directed to be careful. The maxim respondeat superior would be nullified if an employer could escape liability by merely enjoining care or caution. In short, it is the nature of the employ- ment and not that of the particular instructions which deter- mines the master's liability. Whatever arrangement he makes with his servants, the law will hold that " there is an implied authority to do all those things that are neces- sary for the protection of the property entrusted to a person, or for fulfilling the duty which a person has to perform " (c). Tliis was strikingly exemplified in the case of Limj^us v. General Omnibus Co. (aie Slcvtn.sy. (18G'2), 32 L. .1. Kx. 35; 1 JI. & C. Woodward (1881), L. R. 6 Q. B. D. 52(5 ; Jktyhv v. Manehesier, Sheffield, 318. and Lineal ii lly. V„. (1873), L. K. 8 (c) I5la.,klmni, .1., iti Alien v. C. P. 148, 472. London ), a coffin at the house of a relative, infra. but, in the course of tlie joiirney, (/<) Mitchell V. Cressivcller (1853), picked up two of his master's casks : 13 C. B. 237 ; 22 L. J. C. P. 100 ; held that the master was not liable. 286 THE LAW OF MASTER AND SERVANT. his duties or of the confidence reposed in liini (q). It would lie wholly unjust to throw upon the employer the responsibility fur acts done in those circumstances. The two cases commonly quoted in illustration of this limitation are McManus v. Crickett (r) and Croft v. Alison (n). The evidence in the former case Avas that a servant of the defendant had wilfully driven a chariot against the plaintiff's chaise ; and the Court held that an action of trespass did not lie ao-ainst the master. In the latter, the facts were that the plaintiff's carriage became entangled with the defendant's through the negligence of the defendant's driver, and that the defendant's driver wantonly struck the ]:)laintiff's horses with his whip, so that they started and injured the plaintiff's carriage. In these circumstances the defendant was held not liable. So, too, when a clerk to a firm of solicitors went contrary to orders into a lavatory intended exclusively for the use of one of the partners and allowed a tap to run, the (q) In Angell and Ames, on Corpo- rations, s. 388, the rule is thus expressed: ""When a servant (piits sight of the ohject tor which he is employed, and, without having in view his regular duties, pursues a course suggested by malice, he no longer acts in jiursuimce of the authority given him. The dividing line is the wilfuhuss of the act ; and there is no case whore tlie ]irin- cipal has been made iialile for a wil- ful trespass committed by a servant, because commanded and approved by a general agent." The authors refer to Vandf.rl)iU v. Eichvionrl Turnjdke Co., 2 Const. -17!). This statement, which is often substantially repeated, is too wide. (r) (1800), 1 East, 106. (s) (1821), 4 15. & Aid. 590. The Court drew the following distinc- tion .• " If a servant dnving a carriage, in order to ellcat some ])ur- ])ose of Iiis own, wantonly strike tlie horses of another piTson, and jiroduce tlie 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 extri- cate himself from a dilKculty, that will be negligent and careless con- duct, for which the master will be liable, being an act done in jmrsuance of the servant's emjdoyment." See also Lamb v. PaJk (1840), 9 C. & P. 629. (A van standing at the door of A.'s shop from which goods were being removed. A.'s gig stood be- hind the_ van. 15. 's coachman got oir his box and laid hold of the van- horse's head. A ]iacking-case lell from the van and Iiroke the .shafts of the gig: Iield by Gurney, IJ., that B. was not liable, as the coarhman was not at the time acting in the service of B.) "With McManus \. Crirkdt comjiare Dal- rymplc v. McGill (1813), Home, 3^7. (A master not liable for act of ser- vant, who, without orders, took a horse of a neighbour, and rode it so hard that the liorse was permanentl)' injured.) These ca.scs seem incon- sisti nt with Linipvs v. Gemral Oiiu\ilins Co., land J'age v. Defries (18GC), 7 15. k S. 137. master's liability to Tlliur) I'KHSONi^. 287 defendants were held not to be liable for the damage done to the premises of the plaintiff (t). The same conclusion was arrived at in William v. Jones (u), the facts of which were these : defendant's servant, a carpenter, was employed in making a signboard in plaintiff's shed. The carpenter, in liohting his pipe, negligently set fire to the shed. The master was not liable. In Allen v. Tlte London and South- Western Ry. Co. (6), a ticket clerk in the service of the defendants, erroneously suspecting that a person had attempted to rob the till, gave him into custody after the attempt. In an action for false im- prisonment against the company, the plaintiff failed on the ground that the clerk had no authority to take steps to punish an offender. " There is a marked distinction," said Black- burn, J., " between an act done for the purpose of protecting the property by preventing a felony or of recovering it back, and an act done for the purpose of punishing the offender for that which has already been done. There is no implied authority in a person having the custody of property to take such steps as he thinks fit to punish a person who he supposes has done something with reference to the property which he has not done. The act of punishing the offender is not anything done with reference to the property, it is done merely for the purpose of vindicating justice. . . . There is an implied authority to do all those things that are necessary for the protection of the property entrusted to a person, or for fulfilling the duty which a person has to perform." So in Edwards v. London and North- Western Ry. Co. (c), it was decided by the Court of Common Pleas that a foreman porter had not from his position implied authority to give into custody a person reasonably suspected of stealing the company's property, though the porter happened to be in charoje of the station at the time. The facts of Walher v. {t) Stevens v. Woodward (1881), (6) (1870), L. R. 6 Q. B. 65 ; 40 L. R. 6 Q. B. D. 318. L. J. Q. B. 55 ; 19 W. R. 127. {u) (1864-65), 3 H. & C. 602 ; 33 (c) (1870), L. R. 5 C, P. 445. L. J. Ex. 297. 288 THE LAW OF MASTER AND SERVANT. South-Western Ry. Co. ((?) show the fineness of the distinctions upon which tlie Courts proceed. It was decided that the defendants were not answerable for the act of their servant, a constable, in giving the plaintiff into custody on a charge of assaulting the defendants' servants after a struggle was over and when the plaintiff was walking quietly away. On the other hand, the Court thought it might be within the scope of the authority of a servant, who was a constable, to give into custody while a struggle was going on and before it was over, a person who, it was said, refused to (|uit the company's premises, or had assaulted the company's servants. In Moore v. Metroiiolitaii Ry. Co. (e), the company were held liable for the act of an inspector of one of their stations who gave plaintiff into custody on a charge of fraud, on the ground that the defendants were empowered under sec. 104 of their Act to arrest persons committing frauds under sec. 103, and that it might be presumed, in the absence of evidence to the contrary, that the inspector as representa- tive of the defendants had authority to arrest. All these cases are applications — though not very obvious or perhaps consistent — of the principle stated by Blackburn, J., in Allen V. London and South-Western Ry. Co. (/'), that " there is ((/) (1870), L. ]{. 5 C. P. 640. tlio iipj,'li.i,'07ice of a servant, oven if (c) (1872), L. K. 8 Q. 15. 36 ; 42 the .servant lias been e.xpressly told L. J. Q. B. 23 ; 27 L. T. N. S. 579. not to publish the particular libellou.s See ai.so (rojf v. Grnal Northern Jli/. nuitter. A banker is liable for a Co. (1861), L. R. 2 Q. B. 584; Van fraud of a cashier, wHh-Ii is coni- dcn Hijnde V. Ulster Bi/. Co. (1871), mitted in some matter connected 5 Ir. 6. L. 328. with his duties, even thouijli the (/) Page 69. Many decisions state fraud be contrary to the wishes of that the test is wliether the servant the banker. It is only by straining has "authority." This term is the language that we can say in such .source of much confusion. It means cases that a person had implied either (1) express authority given authority to do that which he was by a principal to an agent ; (2) con- expressly forbidden to do. See L'/ink duct which would leave ])ersons to of New Sonth JFah's v. Owsfon, L. believe an agreement was authorized K. 5 Ap. 4. It is, in fact, basing by his ])rincipal ; and (3) in regard the master's and emjiloyer's liability to torts, conduct which is inci- on a legal fiction, to make it turn dental to and .somehow connected on a (juestion of authority. The with the duties of the agent or term has, no doubt, jiroduced mis- servant. A news])aper ])roprietor conceptions. A whohMdass of dicta, is at Common Law liable, as has noW doubtful or overruled, may be been stated, for libels published by traced to its use. A somewhat similar jlvstkr's liability to tiiird peusons. 289 an implied authority to do all those things that are necessary for the protection of the property entrusted to a person, or for fulfilling the duty which a person has to perform." A master will b(^- liable for the tortious acts of liis servant when assiuiiiujz; to act for liim if the master adopts or ratifies them. The principle is thus stated in Wilson v. Tumnwn (r/) : " An act done for another by a person not assuming to act for himself but for such other person, though without any precedent authority whatever, becomes the act of the principal, if subse(iuently ratified by him, whether it be for his detri- ment or advantage, and whether it be founded on a tort or a contract, to the same extent and with all the consequences Avhich follow from the same act if done by his previous authority." The act must be done for and on behalf of the master {h). What is evidence of ratification is a (question of fact. In order that ratification be proved, there must be a knowledge of the fact to be ratified and an intention to ratify. Masters are liable for • the frauds or other torts of their servants to the extent to which they are benefited thereby. This is affirmed in many cases, and it is necessary to refer question arose in trials for embezzle- Ke.v v. Siaith (1823), K. & K. 516 ; ments by servants nnder 39 (ieo. III. Rco: v. Bccchcy (1817), R. k. R. 319. c. 85. It was necessary to show that (;/) (1843), 6 Scott, N. R. p. 904. the servant had, " liy Virtue of such See Eastern Counties Ry. Co. v. employment," received or taken into Broom (1851), 6 Ex. 314; Hoc v. possession the chattel which he was Birkenkrnd (1851), 21 L. J. E.K. 90 ; charged with misajniropriating. See 7 Ex. 36. as to decisions under this section, (/<) Wilson v. Barker (1833), 4 B. Rex V. Mellisk (1805), R. & R. 80 ; & Ad. 616. 290 TIIK LAW OF MASTEU AND SERVANT. here only to Lord Selborne's judgment in Houldswwth v. City of Glasgoii' Bank (^) ; and Lord Cranworth's judg- ment in Addie v. The Wrstern Banl- of Scotland (k). Companies are not liable for the acts of their servants if the acts are not sncli as the comiDanies could be entitled to do. Under this head fall several decisions, of which the most important is Poidton v. London and South-Wesfern Ry. Co. (/). A station master demanded payment for carriage of a horse, arrested the plaintiff, who refused to pay, and kept him in custody for a time. The plaintiff brought an action for false imprisonment. The company had no power under their Act to arrest a person for non-payment of carriage of a horse, and the Court held that the action would not lie, on the ground, as stated by Blackburn, J., " that an act was done by the station master completely out of the scope of his authority, which there can be no possible ground for sup- posing the railway company authorised him to do, and a thing which could never be right on the part of the company to do." Public officers under Government are not respon- sible for torts committed by their servants. Thus in the well-known case of Lane v. Cotton (m), the Postmaster-General, it was held, incurred no responsi- bility for the loss of letters in the office by reason of the no'difrence of a servant ; and in Whitfield v. Lord Le (i) h. R. 5 Ap. 317. (/) (1867), L. R. 2 Q. B. 534 and (k) L. R. 1 H. of L. (8c.) 154 ; 540. ]fackai/ V. Commercial Bank of JS'rw (w) 1 Lord liayiu. CJG; 12 Mod. Brunswick (1874), L. K. 5 P. C. 394. 473. master's LTABrUTY TO Til I III) T'F.RSONS. 2f)l JDespenser (n), decided in ITTS, it was held tliat case di<] not lie against the Postmaster-General for a bank note which was stolen by one of the sorters out of a letter put into the Post Office. The principles upon which a master or employer is held answerable for the acts of servants do not apply to the Crown. " If the master or employer is answer- able upon the principle that qui fecit iwr aliuvi facit per ,se, this would not apply to the sovereign, -who cannot be required to answer for his own personal acts. If it be said that the master is answerable for the negligence of his servant, because it may be considered to have arisen from his own misconduct or negligence in selecting or retaining a careless servant, that principle cannot npply to the sove- reign, to whom negligence or misconduct cannot be imputcfl, and for which, if they occur in fact, the law afitbrds no remedy" (o). Sometimes the Legislature has expressly relieved Govern- ment officials from liability for the acts of their subordinates. See as to this, 0' Grady v. Carchuell, in which the defendant, Secretary of State for War, was held not personally liable in an action for breach of contract entered into by hiiu on behalf of the War Department (p). This exemption does not exj,end, as was held in Sutton v. Clarke {q) and Hall v. Smith {r), and other cases, to trustees and other bodies which perform statutory duties, and tlie profits of which are appropriated to public purposes (s). A master is not liable for injuries caused by his (ji) Cowper, 754 ; A^icJwlson v. Commissioners of Woods and Forests. ) Moumey, 15 East, 384 ; see Story on As to the liability of a sheritl" for the Agency, 319. acts of a bailitF, see Wood v. Finnis (o) CantcrbnniY.AttornrAj-Gmeral (1852), 7 Ex. 363. (1843), 1 Phili 306. (Petition of (p) (1873), 21 W. R. 340. right against the Crown by the (q) (1815), 1 j\Iarsh. 429. Speaker of House of Commons for (r) (1824), 2 Bing. 156. loss of furniture, plate, pictures, (.«) Mersey Dock Trustees v. Gihbs by a fire alleged to have been caused (1866), L. R. 1 H. of L. 93 ; 35 by the negligence of servants of the L. J. Ex. 225. 202 TOE LAW OF JIASTER AND ^>ERVAXT. servant's negligence if they might liavc been avoided by reasonable care on the part of the person injured. What constitutes such contributory negligence as will disentitle a plaintiff to recover is a question which does not belong exclusively to the Law of Master and Servant, and it need not be here discussed (t). APPENDIX A. It is sometimes said that the present law as to the liability of a -master for the torts of his servants is a relic of the time when services were performed, as a rule, by slaves or villeins who were the propertv of their masters, and for whose acts they were naturally held responsiVile. This plausible view is not home out by the authorities. No clear trace of the modern doctrine is to be found in early authorities, such as Bracton. One of the few passaji;es in his treatise bearing on the subject is the iollowin.ti (de Corona, f. 158), where, discussing wroTigs committed bv servants^ he puts this case : " But what if the serA'ant of any one, in the absence of his lord, has seized the cattle of any tenant of his lord, and tlie tenant himself complains concerning the servant that he has seized his cattle unjustly, and detained them against bail and surety, and that servant has called the Court of his had to warrant, and the Coui't has warranted to him concerning the service / The servant shall be released and the Court shall answer for his own act. But cannot the Court answer without the lord, when the service touches the lord himself? Yes, so that the judgment be amended. But if the cattle be seized without a judgment of the Court, and have been claimed by the lord himself when he was iiresent, and he himself has refused them on bail and not surety, each shall be liable, as it apjiears, the one for the seizure and the other for the refusal of release. And although his lord himself has avowed the seizure of his servant, he does not acquit the servant, but he charges himself, and each is liable for the act of the servant, the servant because he seized it, and the lord doubly, because he avows the act of his servant, and because he refuses (the release of the thing seized)." "Likewise let it be, that nothing has been done by the Court, nor by the lord of the Court, but only by the H) Laxv. Darlinqlonnf^:^),^'. 1^ <(• South Western Ry. Co. (1857), 2 .--, Ex. 1). '28 ; 48 L. J. Q. B. 143 : II. k N. 424 ; 2G L. J. Ex. 349. 49 L. J. Ex. 105 ; Ellis v. London MASTKli's INABILITY TO TIIIKD I'KKSONS. 20:} servant, as if the servant witliout the h)ril or witliout tlie CdUit, ha.s levied a tax upon the tenants of liis hji'd as villeins wlio ai-e free, or who say tliat they are perchance, wlieii they are serfs, and afterwards, when lie has of liis own authority made a distress, and the cattle upon the coni])laint of the tenant have been released by the visecjunt upon bail and surety, and a complaint has been made only respecting the servant without the hu'd, it is asked whether the servant can or ought to answer without the lord, and to bring the case to judgment without him? In which case, it will have to be inquired from the lord, whether he will avow the act of liis servants or not, but if not, then the lord may amend it, but if he has avowed, or not amended it, he makes the injury his own, if there has been any injury." Neither in that passage nor any other, as lar as I know, in Bi-acton, is there anything to show that a master was regarded or liable tor the conduct of his villein Avhen acting with(uit orders. Apparently the master was liable lor the acts of his \'illeins when he had ratitied them, or what is the same, had availed himself of Avhat was done or refusetl to release wliat had been seized by them. I am not aware of any case in the Year Books, or any passage in Plowden's Reports, Rastell, or Fitzlierbert, which clearly lays ilown the doctrine now acce])ted. No doubt, instances are to be found in which actions were brought (for example, i>V(//(»j(i v. Fitujlam, 2 H. lY., fol. 18, pi. ti), against masters for the acts of their servants on a custom of the realm. Thus a person was held answerable for the spread of tire when it was due to his guest or servant : C'owells Institutes, 201, and actions on the case lay against innkeepers for the loss of goods by their servants. That the law was not understood as it is now will be seen from the following citations from KoUe's Abridg. Action on Case, 95 : " If a servant, who is my merchant, sells an unsound horse or other chattel at a fair to a man, no action lies against the master for the deceit, for he did not command the servant to sell this to any onein jjartkular :" y Hen. VI., 53. Other authorities might be cited to show that a master was not supposed to l)e liable if a servant abused his authority. Thus Pophaui, C. J., lays it down in JFalthavi v. Muhjar, Moore, 776 (3 James I.), that " where a master sends his servant to do an unlawful act he shall answer for him if he made a mistake in doing the act. But where he sent him to do a lawful act as here to take the goods of the enemies of the king, and he takes the goods of a friend, the master shall not answer. If a master send his servant to market to buy or sell, and lie rob or kill by the way, the master shall not answer, but if he sent him to beat one, and he kill or mistake the person and kill another, the master is a murderer." Dodderidge argued that tlie master was answerable in all public matters. In this case the question was whether the owner of a vessel with letters of marque to seize Spanish sliijis was responsible to the subjects of a friendly State whose ship had been wrong- fully taken. It does not appear to have been contended, as of course would be done in such circumstances in the jjresent day, that a master as a general rule was liable for the acts of his servants in their employment. The sole contention was that the master was liable in all public matters. As late as the time of Charles II. the modern doctrine was virtually denied in Kingston v. Booth (1G83), Skinner, 228, where three justices of the King's Bench laid down the following rule : — " If I command my servant to do what is lawful, and he misbehave himself, or do more, 1 shall not answer for my servant, but my servant for him- 294- THE LAW OF PIASTER AJiD SKRVANT. self, for that it was liis own act ; otherwise it was in the power of every servant to siibjeut his master to what actions or jjenalties he pleased. 'I'hinlly, if I coinniand luy servant to do a lawful act, as in this case, to jiull down a little wooden' house (wherein the plaintitf was and would not come out, and which was carried ujion wheels into the house to trick the defendant out of possession) and bid tiiem take care they hurt not the plaintiff ; if in this doing my servant wound the plaintiti', in trespass and assault of wouiuling brought against me, I may jilead 'not guilty,' and give this in evidence, for that 1 Avas not guilty of the Avounding ; and the pulling down the house was a lawful act." The Doctor and Student (published 1518), at p. 237, recognises tlie distinction between sale to a jiarticular person and sale generally. See also Noy's Maxims (published 1G41), Avhere it is said at ]). !J5, c. 44, " If a servant keeps his master's fire negligently, an action lies against the master; otherwise, if he carry it negligently in the street. If 1 com- mand my servant to distrain, and he ride on the horse taken for the distress, "he shall be punisheil, not I. If a man command his servant to sell a thing which is defective generally to whom he can sell it, deceit lies not against him ; otherwise if he bid him sell it to such a man, it does." The doctrine stated in the text is usually said to have been tirst laid down in Micluul v. Akstree, 2 Lev. (167(5), 172, 3 Keb. C50, an action on the case against a master and servant for bringing horses to train in Lincoln's Inn Fields, whereby the plaintitf Avas injured. Judg- ment Avas given for the plaintiff. " It shall be intended the master sent the servant to train the horses there." In the report in Ventris (i. 295), no mention is made of this point or indeed of the action being against the master, and in the report in Keble the master's liability is apparently justilied by the fact that he ordered the horses to be brought to an open i)ublic ])lace. The modern doctrine Avas more clearly athrnud by Holt, C. J., in Turhernlle v. >Staviji, Comb. 45!), in 1()98, decided only a few years after Kingston v. Bootlt, already mentioned — Avhicli Avas an action against a person ibr alloAving fire to extend beyond his close. Holt, C. J., observed, " Th(.ugh I am not bound by the act of a stranger in any case, yet if my servant doth anything prejudicial to another, it shall bind" me, Avhere it may be presumed tliat he acts l)y niy authority, being about my business." The same view Avas taken in MidtUdon V. Fowler (1(599), 1 Salk. 282. {Nid I'rins, coram Holt, C.J.) This Avas an actic)n on the ciurivate l»usines.s.) Coif V. Creat Nortlurn Ibj. Co. (1861), 3 E. & E. 672; 30 li. J. g.B. 148. (Plaintiff, at the instance of ticket-collector, defendants' in- No Liability. Bing. 385. (Housemaid lighted straw in order to clean a smoky chimney ; master not" liable on the ground that it was no part of her duty to clean the chimney.) Liions v. Martin (1838), 8 A. & E. 512 ; 3 N. it P. 509. (See p. 282.) Lamb v. Palk (1840), 9 C. & P. 629. (See p. 286.) Conhm v. Holt (1849), 4 Ex. 365 ; 7 1). & L. 87 ; 18 L. J. Ex. 432. (Defendant, a contractor for certain works, employed sub- contractor, whose men in the execution of the works but without the defendant's authority used the i)laintiff's crane, and broke it ; defendant not liable in an action of trespass.) Easttrn Counties Ry. Co. v. nrooni (1851), 6 Ex. 314. (Ser- vant of a railway company took plaintiff, a passenger, into custody for an alleged breach of a liye- law, &c., and carried him before a magistrate. The attorney of the company attended to ])rosecute ; held no eWdence of authority, on the ground that " it was not shown there had been any direc- tions given to the (ser\ants) in general to enforce the l)ye-laws and no evidence of ratification." This case seems not reconcilable with Giles \. Taf Vale. Co. See Goff v. Great Northern Rij. Co., and Jhink of Xeic Sontli IVales v. Uu-ston.) Roe v. JJirkeiihcad li'ii. Co. (1851), 7 Ex. 36. (Plaintiff, a passenger, who refused to pay an additional fare, Avas taken into custody by a railway servant acting under the direction of the suiKrintendent of the station ; defendants not liable. There was doubt whetlier the servants wei'e really the servant.s of the comjiany ; Alderson, B. But the case is doubtful.) Mitrhrll V. Craswcller (185.3), 22 L. J. C. P. 100; 13 C. B. 237. (See p. 285.) master's liability to tiiiiu) persons. 207 LlAHILITY. sptrtor ol'jiolicc, iind sujieiintcu- di'iitoniiu'.c'liarged witli tiiivcllin^- "witlioiit 11 ticket witli intent to de- fraud. " We tliink it a reasomible inference that, in the conduct of •their business, tlie c(ini]>any have iin tlie spot otticcrs Avitli authority to determine, TS'ithdnt the dehiy at- tending on convening the diiectors, whetlier tlie servants of the com- jiany shall or shall not, on the company's behalf, ai3}irehen(l a 2>erson accused of this otfence.") Scijviour V. Checinoood (1861), 6 H. & N. 359, and 7 H. & N. 355 ; 8 Jur. N. S. 24 ; 30 L. J. Ex. 189 and 327 ; 9 W. E. 785 ; 4 L. T. N. S. 833. (Defendant liable for the act of his servant, a guard of an omnibus, in forcibly removing passenger whom he be- lieved to be drunk. " It is not con- venient for tlie master iiersonally to condnct the omnibus, and he puts the guard iuhisjilace ; tlierefore if the guard forms a wrong judgment the master is responsible.") Limjniii v. (ji'iu'rid Oinrnhvs Co., (1862), 3 H. & C. 526. (See p. 280.) Parje V. lkfri<'>< (1866), 7 1). & S. 137. (Defendants sent their barge nnder management of lighterman to a wharf to bring it alongside. At suggestion of foreman of wharf, the lighterman moved .away from the Avliarf plaintiff's barge and fastened it to a pile in tlie river. The plaintiff's barge settled on a projection in bed of river and M^as injured.) Lunt V. London and Nortli- TVestern Bif. Co. (1866), L. R. 1 Q. B. 277 ; 35 L. J. Q. B. 105. (Gate- keeper inviting jilamtitf to pass over a railway crossing.) Whartmnn v. Peanvii (1868\ L. E. 3 C. r. 422. (Defendant, a contractor, employed men and liorses ; the men were allowed an hour for dinner, but not allowed to leave the horses. One of the men left his horse unattended ; it r;^ii away ; held that it was No LlATJII.lTV. Li/ijo V. Neu-bold (1854), 9 Ex. :502'; 2C. L. 449 ; 23 L. J. Ex. 108. (Plaintiff agreed to cany defendant's goods for her in his cart ; defendant's .servant, without defendant's authority, alloweil ]i]aiiititf to ride on the cart ; cart broke down, and tlie plaintiff in- jured.) Murjilnj V. Cimdli. (1864), 3 11. & C. 462. (Bales of cotton stored insecurely in a warehouse by porters in the defendant's employ- ment under the superintendence of J., the warehouse-keeiier em- ployed by the owner of warehouse ; defendant not liable, the bales having been stowed under J.'s directions.) Williaiii V. Jones (1865), 33 L. J. Ex. 297 ; 3 H. & C. 602. (See p. 287.) Poulton V. London and Soutli- Wedern Ihi- Co. (1867), L. E. 2 Q. B. 534. ' (See p. 290.) morey v. A.^h(ou (1869), li. E. 4 Q. B. 476 : 38 L. J. Q. B. 223 ; 17 W. R. 727 ; 10 B. & S. 337. (A carman, sent with horse and cart by his employer, a Avine- meichant, to deliver wine and bring back em])ty bottles ; while .returning, after business hours, fie drove out of his way on busines.s, not his master's ; while he was so driAing, the plaintiff was run over.) Edirard>^ \. London and North- JFesfern. lixj. Co. (May, 1870), L. E. 5 C. P. 445 ; 39 L. .J. C. P. 241 ; -l-l L. T. 656 ; 18 W. E. 834. (See p. 287.) JJ'alker v. South EosteDi Ih/. Co. (1870), L. E. 5 C. P. 640 : 39 L. J. C. P. 346; 23 L. T. 14; 18 W. E. 1032. (See p. 287.) Allen V. London and (Treat JFestcni L'lf. Co. (1870), L. E. 6 Q. B. 65 ; 40 L. J. Q. B. 55 ; 23 L. T. 612; 19 W. K. 127. (See p. 287.) Foreman v. Mai/or of Canterbnrii (1871), L. E. 6 Q. B. 214. (De- fendants liable for negligence of 298 THE LAW OF MASTER AND SERVANT. LlAltlLlTY. ])roperly left to tlu' jury to say Avlii'tlier driver was acting Avitliiu scope of liis einploymeiit, and that tliey were jiistitied in tinding that lie was.) Van Den Enynde v. Ulster Uy. Co. (1871), 5 Ir. C. L. 6 and .328. (A clerk of the defendants, while issuing tickets, erroneously thought he had seen a ticket in tlie plaintilf's hand ; charged him with having stolen a ticket ; and detained him ; defendants liable.) Moore v. Metropolitan liif. Co. (1872), L. E. 8 Q. B. 36 ; 42 L. J. q. B. 23 ; 27 L. T. 579 ; 21 W. R. 145. (See p. 288.) Bay ley v. Man ch ester a nd Stafth'd- .shire liii. Co-. (1872), L. K. 7'C. P. 415 ; 41 L. J. C. P. 278. (Plaintiff took his seat in defendants' train i'or Macclesfield ; a porter of tlie defendants, supposing he was in the wrong train, violently pulled him out and injured him.) JFard v. (leneral Oimnhus Co. (1873), 42 L. J. C. P. 265 ; 28 L. T. 850 ; affirmed, 27 L. T. 761 ; 21 W. K. 358. (Blow struck by driver of defendants' omnibus at <1 river of another omnibus ; pas- senger in former injured ; Court lefused to set aside verdict for j)laintitf on the ground that there ■w as evidence of negligence in the course of employment.) Burns v. Poulsom (1873), L. R. 8 C. P. 563 ; 42 L. J. C. P. 302 ; 29 L. T. 329: 22 W. R. 20. (De- fendant, a stevedore, employed to .sliip lails, had a foi'eman, whose duty it was to carry the rails to the .ship after the .carman liad brought tlieni to the (piay, and ludoaded them. Tlie foreman voluntarily got into the cait, and negligently unloaded some lails whereby the jilaintilf was injured. Evidence lor a jury that foreman was acting- w ithin scojie of his duty so as to make stevedore liable. Brett, J., ilissenting.) Tehbutlv.Bristolliy. C'o.(1870), L. No Liability. servants employed in repairing road.) Cormieh v. Diijhij (1876), i) Irish C. L. 557. (Defendant's Steward and herd got leave to go to a neighbouring town, on business of his own, with his master's hor.se and cart ; it was afterwards agreed that he should l)ring home meat for the defendant ; he drove the cart so negligently as to injure the plaintiff ; Court refused to hold, as matter of law, defendant liable. liaynerx. Mitchell (1817), L.R. 2 C. P. D. 357. (Defendant's carman, without his master's jiermission, took horse and cart out of his master's stable to deliver a child's coffin at a relative's house ; he picked up two or three barrels at public-houses which defendant su])plied. He drove against Ijlaintiffs cart, and inj ured it. Bank of New South Jl'cdes v. Oicston (1879), L. R. 4 Ap. 270. (Action for malicious prosecution against a bank ; prosecution insti- tuted by bank manager ; no im- 2)lied authority from his position to institute prosecutions.) Bolinqhroole v. Local Board, Swindon (l):il4), L. R. 9 C. P. 575 ; 43 L. .1. C. P. 575; 3 L. T. 723; 23 W. R. 47. (See p. 282.) Stercns v. Woodicnrd (1881), L. R. 6 Q. B. D. 318. (See p. 286.) master's liability to third ti^rsons. 2!)f) LlAHILITV. ]l. 6 Q. B. 73 ; 40 L. .1. Q. B. 78 ; 23 L. T. 772 ; 1!) W. K. 383. (The stiitionsofdeleiulantsiiiul two (ithcr luilwiiy conipiiuies were adjoining, and the passenger.- of the dillerent companies passed from one to the other, the y\-\u>\(' area being used in common. Tlie phiintilf, while on the phitform (if the (k'fendants on his way from the terminus of 1 me of the (companies to the Ijooking oihce of another, >\as injurecl by the negligence of a i>orter of the defendants. Defendants liable, al- liiough plaintiff not a passenger of the (lefendants.) Mackay v. Commercial Bank of New Brunswick (1874), L. R. 5 P. C. 394. (Cashier of a bank who acted as manager, fraudulently induced plaintilf to accept certain bills ; the defendants obtained the • benefit of the bills.) Venables v. Smith (1877), L. R. 2 Q. B. D. 279 ; 46 L. J. Q. B. 470 ; 36 L. T. 509 ; 2o W. R. 384. (Cab- owner liable for negligence of driver who, on his return to owner's mews, drove a little way from them to purchase snuff for liimself.) Edwards v. Midland liij. Co. (1880), L. R. 6 Q. B. D. 287. (Ac- tion for malicious prosecution lies against a company. ) Scotch Cases. Limoood v. Hathorn, (1817), 19 F. C. 327 ; I. S. App. 20. (The ser- vants of defendant cut down a tree close to a public road ; it fell upon and killed a man ; the defendant not liable, — he being at the time absent, and having given no authority to cut the tree, nor apparently any authority to cut trees in that locality.) Bairdx. Graham {It^rvZ), 14 D. 61"). (A master sent his servant with glandered horse to a fair at such a distance that th e servant was obliged to put up for the night ; action by owner of stable for loss of horses No Liability. Scotch Cases. Waldie v. Duke of Boxburfjh (1822), 1 S. 367. (R. obtained an interdict against W. from deepen- ing part of the river Tweed ; W.'s servant, in his masters absence, and against his'^press orders, com- mitted a breach of the interdict ; W. not responsible.) 300 THE LAW OF PIASTER AND SERVANT. Liability. No Liability Scotch Casks. and cattle which dereiidaiit's liur.se had infected with glandeis.) Faukh V. ToH-Hsend (1801), 23 D. 437 ; 33 ,lur. 224. (A manufactur- ing chemist, whose business con- sisted partly in hoiling down the carcases of horses for manure, liable in the full value of a .stolen horse/ which had l)een purchased liy his servant and used for the above purpose. ) Gregunj x. Hill (1869), 8 U. 282. (Defendant employed foreman and masons to build a house, and paid them wages ; he also entered int(i a contract with a carpenter for carpenter's work ; held that the detendant was liable for injuries to carpenter l)y the negligence of the masons.) AiiEiiicAN Cases. Philadelplda and Reading liy. Co. V. Uerhij (1852), 14 How. 468. (Defendants liable for collision caused Ijy servants disobeying an express order.) Carman v. Mayor of Neiu York (1862), 14 Abb. 301. (Owner of land employed workmen to cut trees on his own hind without employing a competent superin- tendent, or instructing them as to the boundaries ; defendant liable for trees of plaintiif which his workmen ignorantly cut down and removed.) Althorf v. JFolf (1860), 8 8m. ,355. (8ee page 272.) Chapman v. X^ York Cndrul Ji'y. Co. (1865). (Defendants liable for torts of servants when drunk.) Lannoi v. A Ihany Cas Liijlit Co. (1871), 44 N. Y. 459. (Defendants, informed that gas was escaping in the cellar of a house, sent servant to ascertain where the leak was ; the servant lighted a match for this purpose, and an explo.sion took place ; defendants liable.) H'ulfey. Ahnwi ean {IH^)'.)), 4 Duer American Casios. Wright V. Wilcox (1838), 19 Wend. 343. (Master not liable when a servant wilfully threw a lail off a waygonand drove over him.) MaliY. Lord (1868). 39 N. Y. 381. (Defendant not liable for the act of his superintendent in arresting and searching the plaintiff, on a charge of stealing goods from the defendant.) Frascr v. Frecmnn (1871), 43 N. Y. 566. Defendant, under claim of right, endeavoured to force his way, with the aiil of his servant, into premises of plaintilf's intes- tate ; servant shot the latter in the struggle ; defendant not liabh-, in the ab-sence of evidence tliat sliot was fired Avith assent or by direction of defendant.) master's liability to THIIU) PERSONS. 301 Liability. Ajierican Casks. 473. (No defencu tluit defendant's servant, wilfully drove a.^^ainst plaintitrs wa.^gon, if he did soin order to avoid greater peril, which it was the defendant's interest to avoid.) Railroad Co. v. Hanning (1872), 19 Wal. G49. (Contractor agreed to furnish the materials and labour for building a wharf ; to do the work under the direction and supervision of the railway com- pany's engineer and to his satis- faction ; the comijany liable for the negligence of the contractor or his servants.) No Liability. CHAPTER XXIX. master's liability to servants. A MASTER is not liable at Common Law to his servants for the acts of fellow servants in the course of their employment. This has been altered by the Employers' LiabiHty Act of 1880, which is printed in the second part of this volume. But as the Common Law is still partly in force, it will be advisable to state what it was before the passing of that Act. The reasons assigned for the exemption above stated are very various. Sometimes it is put on the ground of general policy, and on the inexpediency of exposing a master to a multipli- city of actions (a). Sometimes the reason assigned is that a servant does, as an implied part of the contract between himself and his master, take upon himself the natural risks and perils incident to the performance of his services (h) ; or it is said that the liability of the master for the acts of the servant is an exception which ought not to be extended, and that the servant has no cause of action against his fellow servant because, " he has not stipulated for a right of action against his master if he sustains damage from the negligence of a fellow servant " (c). Perhaps the most generally accepted reason is that stated by Shaw, J., in Farwcll v. Bodov Railroad Co. (d). " The implied contract of the master does (a) PrlrsHrijv. Fonicr(lS^7),^'M. ('•) liramwcll, B., in Sirninson v. & W. 1. f/tc Kiirth-Eadcrn liij. Go. (1878), (h) Morqan v. Yah of Neath Ji>i. \.. R. 3 Kx. D. 341 ;' 47 L. J. E.x. Co., 33 L.' J. Q. B. 260 ; 5 B. & S. 372 ; 38 L. T. 201 ; 26 W. K. 413. 570; L. R. 1 Q. B. 149. {d) 4 Met. (Mass.) 49. master's liability to servants. '.Wi not cxteiul ti) indcninify tlic sorvaiit against the negligence of anyone but liiniself ; and he is not liable in tort, as for the negligence of his servant, because the person suffei'ing does not stand towards him in the relation of a stranger, but is one whose rights are regulated, by contract express or implied." Whatever be the true reason, it has been undisputed law since the decision of the Exchequer Court in l^ricsthnj v. Fowler in 1837 (e), that a master is not answerable to one servant for the conduct of another in the same common employment. How far this has been altered by legislation will be subsequently explained ; for the present I state the Common Law. "The principle is," said Alderson, B., in Hutchinson V. Yorl-, Newcastle d- Bervjich RaAhvay Co. ( /'), "that a servant, when he engages to serve a master, under- takes as between himself and his master, to run all the ordinary risks of the service ; and this includes the risk of negligence upon the part of a fellow servant, whenever he is acting in the discharge of his dut\^ as servant of him who is the common master of both." It matters not that the work is dangerous if the dangers be incidental to the employment. No one is bound to enter or continue in employment in which he runs serious risk, and if he does, he must take things as he finds them (/y). • The master is not the insurer of those whom he employs. He does not warrant the competency and care of his (r) 3 JI. i^ AV. 1. liole in the floor, owing to the want (/) (1850), 5 Ex. 352. of liglit and fencing ; no breach of (f/) Sec IVigmora v. Jay (1850), duty shown.) This case is open to 5 Ex. 354 ; 19 L. J. Ex. 300. doubr. Skipp v. Eastern Counties (Action by the administratrix of Rii. Co. (1853), 9 Ex. 223. (A guard Wigmore under 9 & 10 Vict. c. 93 ; injured ; evidenc'e tliat tlie work was the deceased, a workman in the too nuich for the stalf of the com- eniploynient of the defendant, a pany ; the servant liad for several master builder, liad been killed by niontlis acted as a guard, and had the fall of a scaffold, constructed under made no eomjilaint : no liability.) sui>erintendence of defendant's fore- Couch v. Steel (1854), 3 E. »^ 15. 402 ; man, who used an unsound pole; 23 L. J. Q. 1>. 121. (Xo implied obli- no cause of action.) Seymour v. gation on the part of the owmer of a Maddox (1851), 16 (J. I'. 326 ; 20 L. siiip towards a seaman that the ship J. Q. B. 327. (Action by a cliorus shall be in a lit state to perform the .singer against defendant, owner of a voyage.) See, however, 39 & 40 Vict, theatre ; the plaintiff fell through a c. 80, s. 5. ^04> THE LAW OF PIASTER AND SERVANT. servant (li), thoiigli he Avill expose himself to an action if he employs those whose incompetency is known to him (/). The carelessness of a servant in the course of his duties which results in the injury of another gives no cause of action against their common employer. A licensed waterman and lighterman in the employment of a corn merchant is injured by the fall of a sack owing to the carelessness of one of the corn merchant's men in hoisting it (/.) ; a miner is killed by the carelessness of an engineer who does not stop a cage when it emerges yom the pit, but allows it to be drawn up to the scaffold (I) ; a workman engaged in erecting scaffolding falls, and is injured owing to the negligence of the foreman, who did not supply sufficient boards (771) ; a man employed ' in carpenter's work for a railway company is injured by the negligence of porters who shift an engine so that it strikes the scaffold on which he stands (y^). In all these cases the injured persons or their representatives have at Common Law no redress against the employers on the ground that the negli- gence is that of fellow servants. The servant whose negligence or misconduct is the cause of the injury may be the superior of the person injured, and the latter may be bound to obey his orders. He is not the less a fellow servant. " A merchant's clerk, though (as is frequently the case) the equal of his employer in social position, is, in the eye of the law, a fellow servant with the boy who sweeps out the store and lights the fire (o)." In Wilson v. Mervu {p) it was held to make no difference that the accident to men sinking a shaft arose from the (/t) Sr.>/mo)/r v. Maddox, aiul .Tcrvis, 335. C.J., in Tarrant v. Welih (ltJ56), 18 (n) Morqan v. Vale of Neath Hi). C. B. 797. Co. Sco lioto (/-). (/) See page 316. (o) Slicunnan and lli'dfu'ld on \k) Loir.n V. Hou-rH (1S7G), L. R. Nt-Kliyunce, s. lOd. 1 C. V. D. 161 ; 45 L. J. C. P. 3S7 ; (//) (1868), L. K. 1 S. & D. 326. 34 L. T. 183 ; 24 W. R. 672. See also Fell/iaiii v. Em/laiui (1866), {I) Bartvnshill C'ual Co. v. Jieid K. R. 2 (,). 15. 33 ; 7 H. & S. 676 : (1858), 3 .Macf|. 266. HmceJls v. Landqrc Skel Co. (1874), {m) Gallaijhrrv. Piper (1S6U, Tl I-. 1!. 10 Q. B. 62. C. B. N. S. 669; 32 L. J. ('. 1'. master's liability to si>:rvants. .305 negligence of a manager. Wlien a third engineer, while turning a winch under tlie orders of the first, was injured by one of the handles coming off, the owners were not liable, though the handle came off in consequence of the negligence of the chief engineer in leaving the machinery in a defective state (q). [But see the Employers' Liability Act, sees. 2 and .3.] The Courts have given a very wide signification to fellow servants. Two classes of cases must be distinguished : (1) Tlie first consists of cases in which two persons are undoubtedly in the service of the same master ; and the only question is whether they arc engaged in common duties or so employed as to bring them within the rule. No authority goes so far as to say that the principle holds good between all servants employed by the same master. If a man owned a farm in the country and a warehouse in town, and if one of his farm servants happened to be injured by the negligence of a servant engaged in the warehouse, no one would say that the master would be freed from liability (r). A sailor on one ship would not be regarded as the fellow servant of a sailor on another, though both ships belonged to the same owner. (q) Scarlc v. Lindsay (1861), 11 69(5 (dressmaker bitten by a savage C. B. N. S. 429 ; .8 Jur. N. S. 746 ; dog) ; or if the injury result from 31 L. J. C. P. 106 ; 10 "vY. R. 89 ; 5 the master's negligeTice ; Wavren v. L. T. N. S. 427 ; also Willes, J., in JVildec (1872), W.' N. 87 (explosion Gallafjher v. Piper ; IlnurU v. La)i- of gas). But tlu; above exemption dore Steel Co. (1874), 10 L. R. Q. B. exists in the event of the servant 62 ; 44 L. J. (}. B. 25 ; 23 AV. R. being injured wliile returning from 335. work, if it be part of the contract ('/■) See Blackburn, J., in Morcjan that he is to be conveyed hack, as in Y. ValeofXcath Rij. (Jo., 33 li. J. Tunney v. Midland ki/. Co. (1866), Q. B. 260 ; 5 B. & S. 570 ; L. R. 1 L. R. 1 [C. P. 291. See as to this, Q. B. 149; and Pollock, C.B., in Lord. Bvo\\ : 2!? W. K. SS.-i. (y) Morgan v. Vale of Aealh Jli/. {/)) Tiinney v. Midland Hy. Co. Co. (1864), 5 13. & S. 570 ; L. R."l (1866). L. R.'l C. P. 291 ;12JuV. 691. Q. B. 149 ; M'Eniry v. JVatcrford (t) (1858), 3 Macq. 308. master's liability to servants. 'M)7 known or expected to have been involved in the service which he undertakes,"— a test which, looking- at the authorities, is scarcely comprehensive enough (d). In Chaiie^s v. Taylor (e) — which involved the (piestion whether one of a gang of "lumpers " or men engaged in un- loading coal barges for the defendants, Avho were brewers, and servants of the defendants engaged in moving barrels, were fellow servants — the Common Pleas Division held that they were such ; and Lord Justice Brett suggested the following formula : " When the two servants are servants of the same master, and where the service of each will bring them so far to work in the same place and the same time that the negli- gence of one iu what he is doing as part of the v/ork which he is bound to do may injure the other whilst doing tlie work whicli he is bound to do, the master is not liable to the servant for the negligence of the other." These formulpe seem to show that the test is whether or not the negligence of a fellow servant is a risk which may reasonably be expected to be incidental to the employment. (2). A second class of cases consists of those in which persons are in one respect the servants of different masters, and yet for some purpose are regarded as if they were the servants of the same master. No doubt it is laid down that to exempt a master there must not only be a common service or employment, but also a common master. When a signal- man engaged and paid by one company and wearing their uniform, but bound to attend also to the trains of another company, was killed by the neghgence of an engine-driver in the service of the latter, it was held that they were not in a common employment (/). Bat the Courts have in some cases recognised the fact that a man may l)e, in a certain sense, (d) The principle is thus stated by those managing that traffic is one of Blackburn, J., Morgan v. Vale of the risks necessarily and naturally Neath Rij. Co., 5 B. & S. 580 : "1 incident to sucli^an employment, and think that, whenever the employ- within the rule." ment is such as necessarily to bring (c) (1868), 3 C. P. D. 496. the person accepting it into contact (f) Sirain.^onv. North -Eastern Ry. with the tralticofthe line of a railway, Co. (1878), L. R. 3 Ex. D. 341. risk of injury from the carelessness of 308 THE LAW OF MASTER AND SERVANT. the servant of two masters, and they have treated as fellow- servants persons who, in one point of view, were not such, but were subject to different masters. The first of these cases is Wiggett v. Fox (,7), the fiicts of ■which were as follows : The defendants, who had contracted Avith the Crystal Palace Co. to erect a tower, made a sub- contract with ]\r. and four other persons to do by piece parti- cular portions of the work. The workmen of the sub-con- tractors were paid weekly by the defendants according to the time which they worked. The sub-contractors received from the defendant's foreman directions as to the execution of the piecework. The persons who contracted with the defendants to do piecework, signed printed regulations by which they were not at liberty to leave their emjDloyment until after they had completed their piecework, and had given a week's notice. While W., who was employed by M., one of the sub-contractors, was at work, a workman in the service of the defendants let fall a tool, Avhich killed W. The jury found that W. was the servant of M. The Court of Exchequer held that the defen- dants were not liable, the deceased and the workman whose neolio'ence caused the accident being common servants of the defendants. "Here both the servants were, at the time of the injury," said Alderson, B., " engaged in doing the common work of the contractors, the defendants ; and we think that the sub-contractor and all his servants must be considered as beinc, for this purpose, the servants of the defendants Avhilst en^a'^cd in doing work, each devoting his attention to the work necessary for the completion of the whole, and Avorking toc'ether.for that purpose." In this connection may be men- tioned Murray v. Currie (It). The defendant had entrusted the unloading" of a vessel to a master stevedore ; the plaintiff, ((/) (1856^, 11 Ex. 832 ; 25 L. .T. case turns, not .so much on the Ex 188 • 2 Jur. N. S. 8.55. 'J'liis doctrine of connnon cuiiiloynient as dcci-sion was questioned by t'oeklnun, on tlie fact that Davis was not acting C ,\ in llourkc y. IVhUc Moss Co. ; as defendant's servant ; audit was not and 'see remarks by Chunnell, 15., in necessary to decide that the ]daintiff Abraham v Jlcymlds. and Davis were fellow scr\'ants. (h) (1870), L. K. 6 C. r. 24. Tliis master's liability to servants. ?00 a clock labourer, was employed by the stevedore and engaged with Davis, one of the crew of the ship, in unloading, by means of one of the winches of the vessel. The plaintiff was injured through the negligence of Davis in working the winch. Davis was paid by the defendants, but his wages were deducted from the stevedore's bills. All the unloading was under the control of the stevedore and his foreman. The stevedore provided the labour, and he would have had to get labour elsewhere if the ship had not found men. The ship- owner selected such members of the crew as were to be employed in unloading, but the stevedore selected the work for them, and had control over them. The Court thought that the defendants were not liable, on the ground that Davis was not doing the work, and was not under the control, of the defendant. " The question here is," said Wilies, J., " whether Davis, who caused the mischief, was employed at the time in doing Kennedy's work or the shipowner's. It is possible that he might have been the servant of both, but the facts here seem to negative that. The rule, out of which this case forms an exception, that a servant or workman has no remedy against his employer, for an injury sustained in his employ through the negligence of a fellow-servant or workman, is subordinate to another rule, and does not come into opera- tion until a preliminary condition be fulfilled : it must be shown that if the injury had been done to a stranger, he woidd have had a remedy against the person who employed the wrongdoer ... It was Kennedy's work he was em- ployed upon, and under Kennedy's control." "I apprehend it to be a true rule of law," said Brett, J. " that if I lend my servant tg a contractor, who is to have the sole control and superintendence of the work contracted for, the independent contractor is alone liable for any wrongful act done by the person while so employed. The servant is doing, not my work, but the work of the indepen- dent contractor." Roiirke v. Wlt'ite Moss Go. (i) ought here (i) (187(3), L. K. 1 C. r. D. 55G ; (1877), L. 1!. 2 C. P. D. 205. Sec 310 THE T,AW OF MASTER AND SERVANT. to be noticed. The defendants, owners of a colliery, Mere en- gaged in sinking a sliaft, and for that purpose had employed among other "svorkmcn the plaintitf. After they had carried on the work for some time, they entered into a contract with one Whittle, to complete the sinking. Whittle was to provide all the labour, and the company were to put at the disposal of Whittle the necessary engine and to pay the engineer's wages. Lawrence, the engineer, Avas employed by the defendants and paid by them. Owing to his having fallen asleep and not stopped the engine at the proper time, the plaintiff was severely injured. Both the Common Pleas and the Court of Appeal thought that the plaintiff could not recover. In the former the decision was placed by Coleridge, C. J., Archibald, J., and Lindley, J., on the ground that both the plaintiff and Lawrence were the servants of Whittle. " He (Lawrence)," said Coleridge, C. J., " was originally, and may be now, in the employment of the defendants ; but the work he had to do at the time of the accident was a necessary part of the work to be done under Whittle's contract. He was at that time working under the direction of Whittle, the working of the engine being a part of one operation, the whole of which Avas being done by Whittle. The plaintiff therefore was clearly tiie servant of Whittle, and LaAvrence also Avas in one sense the servant of Whittle, inasmuch as he Avas Avorkiug under his orders, and subject to his control, although his Avages Avere })aid by the defendants." "The real question," said Archibald, J., " is Avhethcr LaAvrence Avas in the service of Whittle or in that of the defendant. For this purpose, I think he Avas in the service of Whittle." Cockburn, C. J. put his decision on the same grounds. But the judgments of nho Murjyhei/ V. Caralli (ISGi), S l\. liidtln'r-iii-lnw, while ridiiij,' to .sec k C. 462 ; 34 L. J. K.\. 14 ; Kimhull about .some luiy wliiili he hiid onh-ivd V. Cusliinan, lo:5 Mas.s. ]!I4. (Dc- fur tlio (h'ftndaiil, injincd the lendant hoaidcd witli Ins i'athci-in- phiiiitill'; ihtt'iulant liable on the hiw ; liis brotliii-iii-iaw took (.•arc of {ground that tlic brothcr-iii-hnv was the d( fciidaiit's liorscs and carriaf^c, ciij^a^ud in Ids business with his and ocfasioiiMJl}- drove them ; ilic assent.) master's TJATULITY to SKIIVANTS. 311 Mellisli, L. J. and Baggally, J. A., seem to go no further than deciding that at the time of the accident Lawrence was not acting as the servant of the defendants ; and it is submitted that the case does not decide that the plaintiff was the fellow- servant of Lawrence. In his judgment Mellish, L. J., observes, "that the effect of this agreement was that the wliolejob was lent out to Whittle, but the engine was to assist him in doing the work, and the engineer, though remaining the general servant of the defendants and paid by them, was while working at this shaft, to act under the control and orders of Whittle. That, in my opinion, makes the acts of Lawrence, while working the engine, the acts of Whittle and not of the defendants. Lawrence's duty, according to the orders of Whittle, was to have stopped his engine at the proper time, and not doing this, he was negligent in not obeying the orders of Whittle, and this in law amounted to the negligent act of Whittle. It follows, therefore, that the defendants are not liable ; and it is unnecessary to consider whether the plaintiff" was the fellow-servant of Lawrence in Whittle's employ." Baggallay, J. A., thought the defendants not liable on the same ground, namely, that Lawrence Avas acting as servant to the contractor, and did not express any opinion upon the question of common employment. Parallel, however, with these decisions, runs another series of cases, some of which may not be reconcileable with the above. The first one is Ahrahain]v. Reynolds (k), decided in 1860 by the Court of Exchequer. The plaintiff, a servant of J. & Son, went to defendant's warehouse to fetch cotton for defendants, whose cotton was always carted by J. & Sou. The bales were lowered by defendants' men into a lorry, and by the negli- gence of one of the defendants' men a bale fell and hurt the plaintiff. Tlie Court thought the defence of common employ- ment not open to the defendants because (according to Pollock, C. B.), though the workmen had a common object they had separate ends and for some purposes antagonistic {k) (1860), 5 H. & N. 143. See also Coomhcs v. Houghton, 102 Mass. 211. 312 THK I>A\\' OF JIASTKR AND SKKVANT. interests ; because, apparently, (according to Martin, B.) the defendants were not masters of the phiintiff; and because (according to Watson, B.) they "were "persons doing work for a common object but not under the same control or by tho same orders." In Warburton v. Great Western Raihuay (l), decided in 18G6, the Court of Exchequer took the view that a porter of the London \: North Western llailway Co., and an engine-driver in the service of the defendants, were not fellow-servants within the meaning of the rule, though both companies used the station, which belonged to the London & North Western Co., and the servants of the defendants were subject to the rules of the London & North Western Railway Co. and to the control of a stationmaster, a servant of the latter. The consistency of this decision with Wiggett v. Fox is not apparent. In the subsequent case of Siv., sideways constructed fol- that purpose. in Southcolc v. Stanley, 1 H . i^ N. 247, The contractor employed his own 250, and the decision in Alhro v. Ja- servants, among whom was the (/Mt7//, 4 Graj-, 99, there seems no good plaintiff. The plaintiff Avhile so reason for supposing that one fellow- 314 THE LA^v of master and servant. As the reason generally given for the non-liability of a master for injuries sustained by servants through the negli- gence of fellow-servants is the existence of a tacit agi'eement on the part of the former to accept all the ordinary risks attending their service, it might seem to be proper to confine this exemption to cases in which a contract of service exists. This, however, has not been done. Volunteers are treated as if they were servants. A clerk in the employment of Messrs. Pickford, carriers, voluntarily assisted the servants of a railway company in turning a truck on a turn-table. By the negligence of one of the company's servants he was killed. Such were the main facts in Deg(j v. Midland Bail. Co. (.s) ; and the Court of Exchequer came to the conclusion that the deceased by volunteering his services could not have any greater rights or impose greater duties on the defendants than would have existed if he had been a hired servant. It was urged that the plaintiff was a tres- passer or wrongdoer. The cases of Bird v. Holhrook {t) and Lynch v. Nurd in (u) were cited in support of the contention that Degg, though a wrongdoer, could main- tain an action. But the Court overruled this argument, on the ground that a man could not by his own wrong impose a duty. This decision received the approval of the Exchequer Chamber in the subsequent case of Fidler v. Faidl-ncr{x). There tiie plaintiff had, at the request of the defendants' servant, assisted him in putting bales of cotton into a lorry, and was injured while so doing. The Exchequer Chamber expressed the opinion that Bcgy v. Midland Bail. Co. was well decided. Erie, C. J., in delivering the judg- ment of the Court, said with respect to the rights of a volun- teer, " Such an one cannot stand in a better position than those with whom he associates himself in respect of their master's liability : he can impose no greater liability upon the master servant is not lifililc to aiiotlicircllow- & N. 773. servant fur danm^'i's to llic latter by (/) (1828), 4 ]',ing. ii28. the negligoiKc, ot the lornicr. {«) (1H41), 1 (,). U. 2it. (s) (18r.7). 2(J ].. .1. Kx. 171 ; 1 II. (•'•) (18G1), 1 \i. k S. 800. master's LIAIULITY TO SERVANTS. 315 tlian that to which he was subject in respect of a servant in his actual employ." In this instance the plaintiff lent his assistance at the request of a servant who had no authority to employ. Had it been part of tlie regular course of business to do what the so-called volunteer did, and had lie acted with reference to goods to be delivered to him, the difference would have been material. Thus, when a person who had sent a heifer by rail to Penrith Station assisted in shunting into a siding, with the assent of the station-master, the horse-box in which the heifer was, it was held that he was not a volunteer in the sense of the decision in Di>g6; Holmes \. lVurtInniilon(\m\), ik) (1857), 2 H. & N. 21.3 ; 3 Jur. 2 F. & F. .^)33. See, liowc'ver, Dudlot N. S. 469; 26 L. J. Kx. 319. v. llroimi. Law Times, June 25, 1881, (^) (18.58), E. B. & E. 102. i«. 135, reversing the decision of (w) (1858), 3 H. & N. 258 ; 27 L. Divisional Court. Some of tin' J. Ex. 325. remarks in tlie judf^ments in Murjihy (n) Sec note (7/1). v. P/iil/i/i.i appear to be not in ac- (0) See note {k). cordancu with other authorities. {])) (187G), 35 L. T. 477 ; also MASTI'IR's LIABILITV TO SEKVANTS. 321 have examined the state of the chain himself." Davies v. England (q) is an instructive case on this subject. The defen- dant employed the plaintiff in cutting up carcases which the former, it was alleged, knew to be diseased, but which the latter did not. The servant was injured by the virus in the meat, and the defendant was answerable. In this case two counts which did not allege knowledge by the defendant were held bad. These cases did not distinctly determine whether the obligation on the part of the master to take care might be delegated to others. This ([uestion came before the House of Lords in 1868 in Wihoii v. Merry [r), and Lord Cairns thus answered it. " The result of an obligation on the master personally to execute the work connected with his busi- ness, in place of being beneficial, might be disastrous to his servants, for the master might be incompetent personally (q) (1864), 33 L. J. Q. B. 321 ; Pollock V. Cassidji (1870), 8 M. 615. (Plainti(F, while engaged in remov- ing stones from bottom of a pier, injnred by the fall of embankment at the foot of which he was working, and which had not been sufficiently sloped ; the plaintiff not a skilled workman, accpiaiuted with the proper angle at which embankment should be sloped ; defendant liable. ) Mctzqer v. Hcarn, N. Y. S. C, American Law Review, 485 (1881). (Master liable to servant for accident caused by overloading floors of his building.) Oclbseiiheui v. Sluiplcy, N. Y. C. of Ap. (1881), American Law Kcvie\V, 619. (Defendants directed their foreman to test a boiler \mder pressure of 150 lbs. He tested it up to 200 lbs. ; it burst, and injured the plaintiff and servant ; defendants liable, even though the foreman's conduct w'as wanton and wilful.) At Common Law there is in a seaman's contract no implied war- ranty of seaworthiness as to a ship ; see Couch v. Strd, 3 E. & B. 402, also Willes, J., in Gallagher v. Piper, 33 L. J. C. P. 331. This, however, is altered by the Merchant Shipping Act of 1876, s. 5, whicli says : "In every contract of service, express or implied, between the owner of a ship and the master, or any seaman thereof, and in every instrument of apprenticeship wliereby any person is bound to serve as an apprentice on board any ship, there shall be implied, notwithstanding any agreement to the contrary, an obligation on the owner of the ship, that the owner of the ship and the master, and every agent charged with the loading of the ship, or the preparing thereof for sea, or the sending thereof to sea, shall use all reasonable means to insure the sea- worthiness of the ship for the voyage at the time when the voyage com- mences, and to keep her in a sea- worthy condition for the voyage during the same : Provided, that nothing in this section shall .suliject the owner of a ship to any liability by reason of tlie ship being sent to sea in an imseaworthy state where, owing to special circumstances, the so sending thereof to sea is reasonable and justifiable.") (r) L. R. 1 S. & D, 326. 322 THE LAW OF MASTER AKD SERVANT. to perform the work. At all c^•cnts, a servant may choose for himself between serving a master who does, and a master who docs not attend in person to his business. But what the master is, in my opinion, bound to his servant to do, in the event of his not personally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. When he has done this he has, in my opinion, done all that he is bound to do, and if the persons so selected are guilty of negligence, this is not the negligence of the master ; and if an accident occurs to a workman to-day, in consequence of the negligence of another workman^ skilful and competent, who was formerly, but is no longer, in the employ- ment of the master, the master is, in my opinion, not liable, although the two workmen cannot technically be described as fellow -workmen." What, it may be asked, is the position of corporations which always act by servants ? A railway company provides old and defective engines ; its rolling stock is not renewed, or cheap ;ind inferior plant is purchased ; one of its servants is injured in consequence of the defective state of the plant. Is the company liable ? The negligence, it may be said, is, in fact, the negligence of a fellow-servant, in respect of which the injured person has no remedy. On the other hand, it may be urged that if there be no redress, corporations which act by servants enjoy an exemption not possessed by persons who per- sonally carry on their own business. This point arose in Allen V. JS^ew Gas Go. (s)'. The plaintiff, a servant of the defendants, was injured by the fall of certain gates on the defendants' premises. The gates had for some time been out of repair, and the attention of the del'eudants' manager, Farren, had been called to them, and he had promised to repair them. " The gates," said the Court, " were dangerous when shut, not dangerous when against the wall and wedged up. Now, cither some workmen as such moved the gates, or the wind (i) (187(3), L. li. 1 Ex. 1). 251 ; 45 L. J. Hi. 663 ; 34 1.. T. 541. master's LFAllFLITY TO SKRVAXT.S. 323 did SO, and then tlie workmen ouglit to have replaced them. It was, therefore, by the improper moving of the gates by a workman, or by their being left improperly open by the work- men, that the mischief happened. " But assuming it to have been the negligence of Farren, his negligence would, as before pointed out, be that of a fellow-servant, for which, according to the cases cited, the defendants would not be liable" (t). Some American Courts have arrived at a different conclu- sion, and have decided that the knovvledge of a servant, whose duty it is to make reports as to the state of machinery or plant, is the knowledge of the company. The rule is sometimes thus stated : — •" The master cannot be held charge- able for any act of negligence on the part of the superior ser- vant except in so far as such servant is charged with the per- formance of the master's duty to the servant " (n). The point came before the Supreme Court of the United States in Hough v. Texas d- Pacific Raihvay Co. (x), in which the facts were these : — An engine-driver was killed in consequence of an engine being thrown off the track. This accident was due to defects in the cow-catcher ; defects due to the negli- gence of the company's master mechanic, who had full con- trol over the engines, and who knew of the defects, and had promised they should be repaired. His competence was un- questionable, and it was urged that there was no liability, inasmuch as he was a fellow-servant of the deceased. The {t) With the reasoning at p. 25.5 gence by liis manager, or agent, compare Murphy v. Philips^ The whose employment may he so distinct fact is that the authorities are not at from that of the injured servant, one as to this. Some judges seem to that they cannot with propriety be assume that a master cannot delegate deemed fellow-servants ? And if a ills duty, to keep machinery, plant, master's personal knowledge of &c., ill' a state of repair, "in the defects in his machinery be neces- condition in which, from the terms sary to his liability, the more a of the contract, or the nature of the master neglects his business and employment, the servant has a right abandons it to others, the less will to expect that it would be kept;" he be liable." Cockburn, C.i., \\\ Clarke v. Hohnes, («) AVood's Master and Servant, 7 H. & N. 944, "Why," asks 886. Bylcs, J., in the same case, "may (x) (1379), 10 Otto, 213. not the master be guilty of negli- 324 THE LAW OF MASTER AND SERVANT. Supreme Court, however, overruled this defence, observing, " Those, at least in the organisation of the corporation, who are invested witli controlling or superior authority in that regard, represent its legal personality ; their negligence, from Avhich injury results, is the negligence of the corporation. The latter cannot, in respect of such matters, interpose between it and the servant, who has been injured, without fault on his part, the personal responsibility of an agent, who in exercising the master's authority, has violated the duty he owes, as well to the servant as to the corporation. To guard against misapplication of these principles, we should say that the corporation is not to be held as guaranteeing or warranting the absolute safety, under all circumstances, or the perfec- tion in all its parts, of the machinery or apparatus, which may be provided for the use of emplo3'es. Its duty in that respect to its employes is discharged wdien, but only when, its agents, whose business it is to supply such instrumentalities, exercise due care, as well in their purchase originally, as in keeping and maintaining them in such condition as to be reasonably and adequately safe for use by employes." The Court also quoted, with approval, the ruling of a State Court in Ford v. Fitchhury Railway Co. (y), in which it was said, " The rule of law which exempted the master from responsibility to the servant for injuries received from the ordinary risks of his employment, including the negligence of his fellow-servants, does not excuse the exercise of ordinary care in supplying and maintaining proper instrumentalities for the performance of the work required. One who enters into the employment of another has a right to count on this duty, and is not required to assume the risks of the master's negligence in this respect. " The fact that it is a duty, which must always be discharged, when the employer is a corporation, by officers and agents, does not relieve the corporation " (s). Expressions in favour of this view may be cited from (r/) 110 Mass. 241. (c) But .see Warner v. L'rie Ry. Co., 39 N. Y. 468. MASTEIl's LIABILITY TO SKKVANT.S. 3*25 Euglisli cases { 149. Ry. Co. (1858), E. B. & E. 719 ; 5 330 THE LAW OF JIASTKH AND SERVANT. handles — though in this case also it was not clear that the defendant was guilty of any negligence. It is difficult, however, to believe that a master would not be liable if young persons were allowed to work in and about machinery, the dangers of which he did and they did not understand {q). APPENDIX A. The principle decided by Priestley v. Fowler (1837), 3 M .& "\V. 1, is obsciue. It was on a motion to arrest judgment, and it is uncertain whether the negligence was in over-loading a van or in not providing a proi)er van. The tluty of the defendants as alleged in the declaration was " to use due and proper care that the said van should be in a proper state of rejjair, that it should not be overloaded, and that the plaintiti' should be safely carried thereby." Tlie judgment can scarcely be said to lay down any J, clear rule of law. It contains loose expressions and analogies, which are not strictly accurate. It seems to show that the dilference between the obligations of one who employs a contractor and a nuister who employs a servant was not present to the Court. "Lord Abinger," says Lord Justice Brett, in his evidence before the Select Committee on Employer's Liability, " wlio had been one of the greatest advocates ever known at the bar, had an advocate's talent, which mainly consists in the invention of analogies, and there never was a more perfect master of that ai'tthan Lord Abinger, and he took it with him to the bench ; and 1 think it may be suggested that the law, as to the non-liability of masters witli regard to fellow-servants, arose j'rincipally from tlie ingenuity of Lord Abinger in suggesting analogies in the case of I'ricdky v. Fowler, where tlie Court stated the huv thus : ' Where several persons are em- jdoyed in the conduct of one common enterprise or undertaking, and tlie safety of each depends much on the care ami skill with which each other shall ])eiform liis approjiriate duty, each is an observer of the conduct of others, and can give notice of any misconduct, incapacity, or (q) Lynch v. Nardin (1841), 1 Q. yciirs of ai^c, got upon cart in play, I'>. 29, where tlie question wlicther a iiml iinotlior child led the liorse ; child cwild be guilty of conlrilmtuiy jiluintill injnied ; defendant liable negligence was decided to be a ijues- though jilaiiitilf a tres])asser, and tioii of fiict for the jury. (Defeiidiint hud contributed to mischief.) See re- left liis horse and cart in street iiii- iiKuks in Lyyo v. Ncwbvld (185-1), attended ; ])l;uiititr, a child of .seven 9 Kx. 302. WASTEll's LIABILITY T(J SERVANTS. 331 neglect of iluty, and leave the service if the common emjiloyiT will tioI take such precautions and employ such agents as the safety of the wliole party may require. By these means the safety of each will he made more eli'ectually secured than could be done by a resort to the common emi)loyer for an indemnity in case of loss by the negligence of eacli othei'.'" The doctrine was clearly laid down in America, in 1842, in Fancell v. Jloxton plied except to acts of negligence, and the like. It is clear that it lias no application to risks which are not incidental to the service. See Mansfidd v. IJuddeley, 34 L. T. 096. APPENDIX B. Tli6 Jolloinwj are the chief cases as to Common Employmeaf : — Fellow Servants. Hutchinson v. York and NeiLxastle By. Co. (1850), 5 Ex. 353. (Servant of defendants and engine-driver of train in which he was riding in dis- charge of his dutv.) Wigviore v. Jaii (1850), 5 Ex. 343 ; 19 L. J. Ex. 300. (See p. 303.) Wiggett v. i'oa:\l856), Ex. 832. (See p. 308.) Degg v. Midland By. Co. (1857) ; 1 H. & N. 773 ; 26 L. J. Ex. 171. (See p. 314). Senior v. JFard (1859), 1 E. & E. 385. (Pitman and lianksiuan of a colliery.) Searle v. Lindsay (1861), 31 L. J. C. P. 106 ; 11 C. B. N. S. 429 ; 10 VV. E. 89. (See p. 305.) Potter V. Faulkner (1861), 1 B. & S. 800 ; 8 Jur. X. S. 259 ; 31 L. J. Q. B. 30 ; 10 W. R. 93. (See p. 314.) IFaller v. South-Eastern By. Co. (1863), 32 L. J. Ex. 205 ; 9 Jur. X. S. 501 ; 2 H. & C. 102 ; 8 L. T. 325 ; 11 W. R. 731. (Railway guard and ganger of plate-layers. ) Gallagher v. Piper (1864), 16 C. B. X. S. 669 ; 33 L. J. C. P. 329. (See p. 304.) Lovegrove v. London, Brighton and. South-Coast By. Co. (1864), 16 C. B. X. S. 669 ; 33 L. J. C. P. 329. (Plaintiff, a laboiu'er, in the service of defendants, employed in filling trucks with ballast ; injured by the negligence of another servant in i)lacing insecurely temporary rails.) 332 THE LAW OF MASTER AND SEllVANT. Morqan v. Vale of Neath By. Co. (1864), L. E. 1 (,). B. 149 ; 35 L. J. Q. B. 23 ; 13 L. T. N. S. 564 ; 14 W. R. 144 ; a 13. & S. 570 ; 10 Jur. N. S. 1074 ; 33 L. J. Q. B. 2()0. (Sec p. 306.) Hall V. Johnso7i (1865), 3 H. & C. 589 ; 34 L. J. Ex. 222 ; 13 W. R. 411 ; 11 L. T. N. S. 779. (See. p. 306.) Miirphy v. Smith (1865), 12 L. T. N. S. 605. (Plaintift', a boy of tender years, and a person Avho managed the works in the absence of the manager.) Feltham v. England (1866), L. B. 2 Q. B. 33 ; 36 L. J. Q. B. 14 ; 7 B. & S. 676 ; 15 W. B. 151. (Pluintitf, a workman, in the employ- ment of maker of locomotive engines, and foreman of the workshop, his snperior, fellow servants ; plaintiti' injured by the giving way of piers supporting a tramway and ti'avelling-crane ; defendant not liable, there being no evidence of personal negligence.) Timncii V. Midland Ry. Co. (1866), L. R. 1 C. P. 291. (See p. 306.) Mumiii V. Currie (1870), L. R. 6 C. P. 24. (See p. 308.) Howell's V. Landore Siemens Steel Co. (1874), L. R. 10 Q. B. 62. (See p. 306.) Lovell V. Hovell (1876), L. E. 1 C. P. D. 161 ; 45 L. J. C. P. 387. (Plaintiff, a licensed waterman and lighterman employed by defendant, a warehouse- keeper, at weekly wages, to moor and unmoor barges ; he was in the habit of passing through the warehouse on the way to manager's office to receive orders or when sent for ; being sent for, he was on his way to the ofhce, and he was knocked down by a sack of grain through the negligence of defendant's servants in hoisting goods.) Eourb^ r. White Moss Co. (1876), L. R. 1 C. P. D. 556 ; 2C. P. D. 205. (See p. 309.) Cumcayv. Belfast Ry. Co.' (1877), 11 Ir. C. L. 345. (General traffic manager and milesman. Exchetpier Chamber affirming decision of Common Pleas.) Charles v. raijlor (1878), L. R. 3 C. P. D. 492 ; 38 L. T. 773 ; 27 W. R. 32. (Plaintilf, hired by A. to assist in unloading a barge at the wharf of defendants, who were brewers. Plaintilf and A., with other men, formed a gang, which Avas paid by defendants at \s. 9d. a ton ; the money to be paid to one of the men and distributed among the others. Defendants alone might dismiss plaintiff. A servant of the defendants engaged in moving barrels negligently let one of them slip, and plaintitt' was injured. A. held to be a foreman and not a contractor, and plaintilf and A. fellow-ser\-ants.) Not Fellow Servants. Vose v. Lancashire and Yorkshire Ry. Co. (1858), 2 H. & N. 728, N. S, 364 ; 27 L. J. Ex. 249. (Plaintiff, reju-esentative of deceased in service of East Laneashire Ry. Co., while at work in a station in the joint occu- pation of that company and the defendant company, killed by an engine belonging to the latter, which was Ix-ing shunted. The persons employed in shunting joint servants of the two com])anies, but the engine-ilriver and the persons employed in the same way as the deceased were separate servants. The accident occasioned by defects in the rules of the station.) y\hrahmn. v. Reynolds (1860), 5 II. & N. 143; 6 Jur. N. S. 53 ; 8 W. R. 181. (See p. 311.) Fletcher v. Peto (1862), 3 F. & F. 368. (PlaintilT engaged by wharlinger master's liability to servants. 333 to laiul bai^s of guano and cany tlicni to warehouse to be piled tliere by day-labourers; plaintilV injured by the fall of some of the bags, which had been negligently piled. The jury held that the plaintiff was engaged in separate work from that of defendant's men.) Cleveland v. Siners (1864), 16 (J. B. N. S. ;3S)9. (A mere passer by being asked by a workman to give information as to mode of making a hole in a gas pipe ; not a volunteer assistant, withiTi Degg v. Midland Ry. Go.) WarlmrUm v. Great Western Ry. Go. (IHfiO), L. II. 2 Ex.30 ; 30 L. J. Ex. 9 ; 4 H. & C. 695 ; L") W. R. 108. (Plaintiff, a porter in the service of the London and North- Western Ry. Co., at their Manchester station, which was used by the defendants' Company, injured by the negligence of an engine-driver in the service of the defendants' company ; the defendants' servants, when within the station were suliject to the rules of the London and North- Western Ry. Co. Defendants liable.) Smith V. Steele (1875), 32 L. T. N. S. 195 ; 44 L. J. Q. B. 60. (Pilot engaged by defendants under the compulsory clause of Merchant Ship- ping Act. 1854, and shipowner's servants.) Turner v. Great Eastern Ry. Co. (1875), 33 L. T. 431. (See ]). 313.) Wright v. London and North- Western Ry. Go. (1876), 45 L. .1. q. B. 570 ; L. R. 10 Q. B. 298 ; L. R. 1 Q. B. D. 252. (See p. 315.) Swaimon v. North-Eastern Ry. Co. (1878), L. R. 3 Ex. 1). 341 ; 47 L. J. Q. B. 372. (See p. 312.) SCOTCH CASES. Fellow Servants. Reid V. Bartonshill Coal Co. (1858), 20 D. 13 ; 3 Maeq. 266 ; Pater-son, App. L, 785. (See p. 306.) Wilson V. Merry (1868), L. R. 1 S. & D. App. 326. (Miner and general manager of mine fellow- servants, though latter had been guilty of negli- gence before the former entered the service of the plaintiff.) Macfarlane v. Caledonian Ry. Go. (6 Dec. 1867), 6 :^Iacq. 102. (A rail- way labourer and an inspector.) Leddy v. Gibson (Jan. 1, 1873), 11 M. 304. (Sailor and captain of a merchant vessel.) Not Fellow Servants. Clark V. McLaren (Nov. 2, 1871), 10 M. 31. (Plaintiff employed in a chemical work ; engaged by master to move under the managei- of the chemical department a roof which had been injured ; plaintiff' hurt by the falling in of roof. Held that the doctrine of common employment did not apply, as neither workman nor manager engaged in his proper work.) Adams v. Glasgoxo and South-Wcstern Ry. Co. (Dec. 7, 1875), 3 E. 215. (A., employed as fireman by the Caledonian Ry. Co., killed on line of defendants^ over which the Caledonian Ry. Co. had running powers, by the negligence of a clerk in the service of defendants.) 334 THK LAW OF MASTER AND SERVANT. AMERICAN CAS?]S. Fellow Servants. Ilard V. J'ermoiit (Antral I'lj. Co., 32 Vt. 473. (Mrcliaiiics in inachine shop of (lefendiints, and servants in charge of the train.s.) Shernum v. Eocheater I'lf. Co., 17 N. Y. 153. (A brakesman of a train and engineer or conductor who has directed it to he run at an unsafe speed.) Crilmau v. Fasten) Ri/. Co., 92 ilass. 233. (Carpenter em])loyed by defenchints ; part of liis duty to travel to and from his place of work on defendants' line. Felh)w-servant of pointsman.) Johnson v. Boston, 118 Mass. 114. (See p. 48.) Holder v. Fitchburg Railroad, 129 Mass. 268. (A brakesman of a train and workmen employed in widening the railway.) The following are some of the chief decisions relative to the duty of masters in regard to viachinery and plant : — Master Not Liable. Seymour v. Maddox (1851), 20 L. J. Q. B. 327 ; 16 Q. B. 326. (See p. 303.) SJcijyp V. Eastern Counties liij. Co. (1853), 9 Ex. 223 ; 23 L. J. Ex. 23. (Plaintiff employed to attacli carriages to locomotive ; defendants did not employ a sutticient number of men ; but i:)laintiff had worked several months without anv comphunt.) Ihjnen v. Leach (1857), 26 L. J. Ex. 221. (Defendant, from motives of economy, substituted for tlie usual and safest mode of lifting sugar moulds a clip. The deceased, a labourer in the employment of defen- dant, fastened the clip, whicli slipped, so that a mould fell, and kiUed the deceased. No case to go to the jury ; tlie labourer having known all the circumstances, and liaving voluntarily used the macliinery.) Ormond v. Holland (1858), K. B. & K 102. (I)elen(hants, builders, and plaintiff in their em])loyment as bricklayer ; plaintiff injured by the breaking of a round in a ladder. " There being no evidence of personal negligence, either by interference in the working oi' in hirinf^ the servants, or in choosing the implements." Defendants not liable.) Alsop V. Yates (1858), 27 L. J. Ex. D. 156. (Defendants set up a hoarding which projected too far into the street ; a lieavy machine was put between the hoarding and building ; a ladder upon which jdaintiff was, near it ; ])laintiif had complainelaintiiras a passenger on Sunday). 1 Q. V>. 259; 14 W. E. 279; 13 L. T. See, on the other hand. Ex 2>nrtc N. S. 701. Middhton (1824), 3 15. & C. 164, (r) (1827), 4 liing. 84 ; 2 C. ct P. 41). & I\. 824, wlicre a driver of at«?i 544 ; 12 Moore, 266 (action will not ■was held to be under .3 Car. I. c. 4. lie upon a contract made and com- (c) R. V. Silvester (18«;4), 33 L. J. plcted on a Sunday). ]SI. C. 79; 10 Jur. N. S.; 12 ^V. IJ. (f) Jhw v. U'/iitnash (1827), 7 15. 375 ; !) L. T. N. S. 682 ; 4 B. & S. & C. r,'.m ; 1 M. .'t R. 4.'')2. !t27 ; "other persons then must mean ((/) Poitr v. DiiJcen (1834), 1 C. lil. otlier persons not quite a tradesman, k W. 422; 5 Tyrw. 116; Norton v. labourer, &c.," 15lackbnrn, J. PoimU (1842), 4 M. & G. 42 (the {d) (1808), 1 Taunt. 131. See giving by one tradesman to another SUXDAY OnSEUVAXCE. 330 liaud, a horscJealercauiiot maiutain an action upon a contract, even if made privately, for the sale and warranty of a horse, provided it were entered into on a Sunday (It). Only one penalty can be incurred in the course of a day (?■). In some American cases it has been held that if a master forces a servant to labour on a Sunday it is a good cause for leaving the service (k). This would appear to be the case here also. In a Scotch case (0, the House of Lords laid it down that an apprentice to a barber, who was bound not to absent himself from his master's business on holidays or week- days, late hours or early, without leave, and who went away on Sundays without leave, and without shaving his master's customers, could not be lawfully required to attend his master's shop on Sundays ; the ground of the decision was that shaving was not a work of necessity or mercy. tradesman of a guarantee for the faithful services of a traveller is not an act clone in his ordinary calling^. (h) Fcnncll v. Pddler (1826), 5 13. & C. 406 ; 8 D. & K. 204. See also as to "ordinary calling," IVollon v. (?rtiv'?i(1850), 16 Q. B. 48 (enlist- ment of a soldier by a recruiting officer not within the Act, and not invalid by reason of taking place on a Sunday) ; Scarfc v. Morgan (1838), 4 M. & W. 270 (sending a mare to a i'armer to be covered by a stallion not within farmer's ordinary calling) ; Bloxsomc V. Williams (1824), 3 B. & C. 232 ; 5 D. & 11. 82 (A. not know- ing that V>. was a horse-dealer, made a verbal bargain with him on a Sunday for purchase of a horse ; assuming the contract to be void, the purchaser was ignorant of the fact that the vendor was e.xercising his ordinary calling on the Sunday, the former was therefore entitled to the price for breach of Burden (1770), 2 recover warranty). (i) Crcppi- Cowp. 640. (Jc) Coin V. St. German Brown, Penn. 24, and Wariier v. Smith, 8 Con. 14. (I) Phillips V. Lines (1837), 4 C. & F. 234. See, however, JFil- son V. Simson (Sc), 11 July, 1844, where the Court of Session held that a fanner was justified in dismissing without notice a farm labourer, who, when requested by the farmer to remain at home to attend the cattle, which were ill, in order that the other servants might go to church, refused so to do. For a review of the English and American cases, see Benjamin on Sale, 2nd edition, 442. See also the Factory Act of 1878, sec. 21 and 51. z 2 CHAPTER II. THE EMBEZZLEMENT ACTS, In consequence of defects in the Common Law witli res- pect to larceny or embezzlement by servants, the Legislature passed, especially before the introduction of the factory sys- tem, a number of Acts for the purpose of preventing the embezzlement of materials and tools, and the selling and bujang of such embezzled materials, &c. These Acts are now of comparatively small consequence. Their chief pro- visions are here set out. 1 ANNE, c. 2-2 (1702). *^ An Act for tlie more effectual lireventing the abuses and frauds of jicrsons employed in the ^corking uj} the woollen, linen, fufttian, cotton and iron manufactures of this kingdom " Section 1. — "If any person or persons employed in the working up the Avoollen, linen, fustian, cotton or iron manufactures Avithin this kingdom shall imbezzil or purloyn any wefts, thrums, or ends of yarn or any other materials of ^\o^A, hemp, flax, cotton, or iron, with which he, she or they, is or shall he entrusted to work u]ion, or shall reel short or false yarn," he " shall forfeit double the value of the damage aj. "An Act fur 2^)reventin(j jonrncijmen shocmalcers selliiuj, exduvnijiny, or pawninij hoots, shoes, slippers, cat leather, or other materials for making boots, shoes {or slippers, and for better regulating the said journeymen." By sectiuii 3, justices may i.-f her late Alajc-^tii Queen Amie, intittded an Act for the more effectual jjreventing the ahiscs and frauds of persons employed in the u-orhins. 7 & 8 by 38 &. 39 Vict. c. Sti, s. 17. 15 (;E0. II. c. 27 (1741 — 4i>). ^^ Alt Act for the more effecluul ^-nantiitfj amj cloth or woollot goods rtmaining iqion the rack or ttniirs, or any woollen yam or xcool Ujt out to dry, from being stolen or taLin avag in the night time." Section 1 empowers one or more Justices to issue search-warrant for cloth stolen off tenters. TIIK ICMBKZZLEMKNT ACTS. .'M3 22 HEO. IJ. C. 27 (174;i). An Ad for the more effectual freccntiiuj of frauds and ahusea comviitfed hij persons em^jloyed in the mamtfadure of hats, and in the icoolkn, linnen, fustian, cotton, iron, leather, furr, hemp, flax, mohair and silk manufadures ; and for preventing unlauful combinations of journeij- »7ieH (llUrs, and journeymen hotpressers, and of all persons employed in the said several manufactures^ and for the better imymenf of their wages (a). Section 1 recik'S clauses in 13 (ioo. II. v. 8 ; and i)iuceeds to extend and amend the same by enacting that " if any person or persons Avliatscj- ever, who sliall be hired or em^jloyed to make any felt or hat, or to pre- pare or work up any woollen, linnen, fustian, cotton, iron, leather, furr, hemp, flax, mohair, or silk manufactures, or any manufactures made up of wooll, furr, hemp, flax, cotton, mohair, or silk, or of any of the said materials mixed one with another, shall Irom and after the twenty- fourth day of June, one thousand seven hundred and forty -nine, purloin, imbezil, secrete, sell, pawn, i'xchanye, or otherwise unlawfully dis- pose of any of the materials with which he, she, or they shall be resjjec- tively intrusted, whether the same or any part thereof be or he nut tirst wrought, made Tip, manuiactured, (jr converted into merchant^ible wares, or shall reel false or short yarn (b), and shall be thereof lawfully convicted, 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 (r) justice or justices of the peace of the county, liding, division, city, liberty, town or place where such offence shall be committed, or where the person or persons so charged shall reside or inhabit (which oath or affirmation the said justice or justices is and are hereby empowered and required to administer), it shall and may be lawful to aiul for the said justice or justices, by warrant under his or their hand and seal or hands and seals, to commit the person or persons so convicted to the House of Correction, or other public prison of such county, riding, division, city, liberty, town or j>lace, there to be kept to hard labour for the space of fourteen days, and also to order the (a) liy 6 & 7 Vict. c. 40, so III. c. ol, s. 2. much of the above Act as relates to {b) Repealed as to reeling short the woollen, linen, cotton, flax, yarn by 14 Geo. III. c. 44. mohair, and silk manufactures, is (c) 17 Geo. III. c. 56, s. 2, siibsti- repealcd. Repealed as to penalties by 17 Geo. III. c. ot), s. 16, and 58 Geo, tutes " two or more. 344 THE LAW OF MASTER AND SERVANT. i:erson or persons SO convicted to be once publicly ^vhipped (S:c.'' TIIK KMREZZLEMENT ACTS. 34-7 U GEO. III. ('. 2.-) (1774). All Act fur the iaorccJ[)'cctiud inxvcntiiKj frauds and emhe::deiiient hj persona employed in the woollen 'inanufactunj. Section 1. " Tliat if any ])ickc'i', scribljlei', spinnei-, ui" weaver oi- other jierson or persons wliatsoever who sliall be in any^vays ciuployeil in or about tlic making or manufacturing of woollen cloth, or in pre- ]iaring materials for that purjjose, shall not return all working tools ov implements, w-ool, yarn, chain, woof or abb delivered out to be worked up and manufactured and all such materials as aforesaid where- ■with he. she, ov they shall be entrusted, or give a satisiactory account touching the same respectively to his, her, or their employer, when thereunto required by the person or persons by whom he, she, or they shall liave been so intrusted, or Ityhis, her, or their known clerk or servant, or shall fraudulently steam, dam]i, or water the wool or yarn delivered to him, her, or them to be worked u]), or if any person or persons shall take off, cut, or pick out the list, forrel, or other mark of any piece of (doth, and shall be convicted of any such offence before some justice or justices of the peace for the county, division, liberty, or place where the person or ])ersons so offending shall reside, either by the confession of the party or parties or by the oath or cmtlis of one or more credible witness or witnesses, every suidi person so convicted shall be committed to the House of Correction for the space of one calendar month." Section 2. " That if any person or persons so employed, and who shall have been entrusted wdth any tools, implements, ■\vo(j1, yarn, chain, woof or abb, or other materials as aforesaid, shall not have delivered or accounted for the same, shall abscond or cannot be found, or shall sell or otherwise dispose of the same or any part thereof ; or if any person or persons shall fraudulently buy or receive such tools, implements or materials of any person so employed or entrusted ; or if any person or persons shall be suspected of and charged on such suspicion with having embezzled and kept back, by means of fraudulently damj)- ing, steaming or watering the wool and yarn delivered out to him, her, or them ; or with having sold, liought or otherwise I'eceived the same or any iiart thereof, as aforesaid, and oath shall be made thereof respec- tively before one of his ]\Iajesty?s justices of the peace for the county, division, liberty or place where any such offence was committed ; such justice shall thereupon issue his warnmt to any constable or constables or other peace otiicer or peace officers to enter into and search, in the daytime, the place of dwelling or residence of such person or persons so offending, antl also such other house or place, houses or places, of which the clothier, clerk, or servant as aforesaid shall make oath that he, she, or they have just cause to suspect, it appearing to the said justice to be 348 THE LAW OF PIASTER AND SERVANT. reasonable suspicion, that the saitl working tools, or the said materials, or some part or parts thereof, to have been embezzled or kept back, sold, bought or received as aforesaid, may be secreted and lodged : and if upon search any of the said working tools, wool, yarn, chain, woof or abb, or any cloth with the list forrel, or other marks taken olf, cut or picked out, shall be found, the said constable or constables, peace officer or peace officers shall seize the same, and apprehend the person or persons in whose custody or possession the same shall be found and bring him, her, or them before the same or some other of his Majesty's justices of the peace for the coimty, division, liberty or place aioresaid ; and unless such person or persons in whose custody the same shall be found can give a good accoiuit how he, she, or they came by the same, to the satisfaction of such justice or justices, tlien and in such case such person orpei-sons shall be thereof convicted, and suffer such iiunishment as is herein-before directed to be inflicted on persons not returning the tools or materials as aforesaid ; and all such tools, wool, yarn, chain, woof or abl>, or such cloth as aforesaid, so seized, and not accounted for as aforesaid, shall, upon such conviction, be delivered over to the churchwardens or over- seers of tlie poor of the i)arish where the same were seized, to be by them sold ; and the monies arising by such sale, after defraying the expenses of such sale, shall be applied to the use of the poor of the said parish." Section 4 enacts that any justice, upon information made, may cause houses to be searched for ends of cloth, (S:c., antl the same if foimd to be seized, and ])arties brought before justice. 17 (iEO. III. c. 11 (177(;— 7). An Ad for more effectually ^i'reventing frauds and abuses covtmitted % persons employed in the vianufadinrs of combing u-ool, tcorsted yarn and (joods made from worsted, in the counties of York, Lancasttr, and Chester. Section 1 recites Acts 22 Geo. II. c. 27 ; 14 Geo. III. c. 44 ; and 15 Geo. III. c. 14, and, stating that " the good purposes of the said laws have been greatly frustrated," provides for a general meeting of manu- facturers of Yorkshire, Laiicasliire, and Cheshire ; those of Yorkshire to elect eighteen, and tliose of Lanca-sliire and Cheshire nine i)ersons, to be a committee. Committee to appoint inspectors. See 24 & 2J Vict. c. 101. THE EMBEZZLEMENT ACTF!. .'^40 17 GEO. ni. c. r>C, (1777). All Ad for amending and renderintj more effectual the several lairs vow in being, for the more effectual preventinri of frauds and abuses bij j^ersons employed, in the manufacture of hats, and in the vmollen, linen, fustian, cotton, iron, leatlier, fur, hemp, flax, mohair, and, silk manitfactures ; and also for maJcing provisions to prevent fravxls by journeymen dyers (/). Section 3 recites section 2 of Act of 23 Geo. II., and substitutes a penalty of not more than forty pounds, nor less than twenty pounds. Section 5. " If any person shall sell, pawn, pledge, exchange or other- wise unlawfully dispose of, or offer to sell, pawn, pledge, exchange, or otherwise unlawfully dispose of, any such materials as aforesaid, whether wrought or un\\Tought, mixed or unmixed, knowing tliem to have been purloined or embezzled, every such person lawfully convicted shall be liable to the same punishment as he or she wouLl be liable to by virtue of this Act, on being convicted of receiving purloined or embezzled materials, knowing tlu-m to have been purloined or em- bezzled." Section 6. " When any person or persons shall be brought or charged upon oath before any two or more justices of the peace, by virtue of this Act, with being suspected of, or with having purloined or em- bezzled, or with having received any such materials as aforesaid, whether the same be wrought or unwrought, mixed or unmixed, know- ing the same to have been either purloined or embezzled, or received from some person or persons not entitled to dispose thereof, and it sliall be made appear upon the oath or (being of the people called Quakers) upon the attirmation of one or more credible witness or witnesses, to the satisfaction of such justices, that such person or persons hath or have purloined or embezzled, or hath or have received any such materials as aforesaid, knowing the same to have been purloined or embezzled, or received from some person or persons not entitled to dispose thereof, it shall and may be lawful for such justices, or for the justices at their general or general quarter sessions of tlie ]ieace, and tliey are herebv respectively authorized and empowered (if they shall think fit) to convict such person or persons of having purloined or embezzled, or of havincj received such materials as aforesaid, knowing the same to have been jjurloined or embezzled, or received from some person or persons not entitled to dispose thereof, although no proof shall be given to whom such materials belong ; and the person or persons so convicted shall for (i) By 6 & 7 Vict. c. 40, s. 1, See also 6 Geo. IV. c. 129 ; 1 & 2 repealed as to woollen, linen, cotton, Will. IV. c. 36 ; 34 & 35 Vict. c. 116 • flax, mohair and silk manufactures. and 38 i^ 39 Vict. c. SC, s. 17. 350 TIIK LAW OF MASTKR AND SERVANT. every f^udi r>iri'iici-, be subject to surh and the like penalties and inmisji- meuts, at the disci'etion of such justices respectively, as persons convicted of buyin,;^' or receivin;^ any such materials as aforesaid, knowing tlie same to have been purloined or embezzled, ai'c by this Art subject and liable to " (/,•). Section 9. " If any person shall receive any of the aforesaid materials in a fictitious name, in order to be manufactured ; or if any ])erson shall receive in his or her own name any of the said materials, in order to be manufactured by himself or herself, and afterwards deliver the same, or any part thereof, to any other person to be manufactured (without the consent of the owner thereof) ; or if any carrier or other person employed to deliver any such materials to any workman, to be prepared or wrought up, shall designedly deliver the same to any other person than the person to whom such materials were ordered or intended to be delivered Ijy the owner thereof ; all and every person and persons offending in any of the cases aforesaid shall for every such ofl'ence, be liable to prosecution, in the same manner, and to the same punishment, as is by this Act directed in respect to persons taking in any of the said materials in order to work up, and afterwards wilfully neglecting or refusing the performance of their work for the space of time aforesaid." Section 10. " It shall and may be lawful for any two justices (jf the peace of any county, riding, division, city, liberty, town, or place, upon complaint made to them, upon oath by any one credible person, or (being of the people called Quakers) upon solemn affirmation, that there is cause to suspect that any such purloined or embezzled materials, whether mixed or unmixed, Avrought or unwrought, are concealed in any dwelling-house, outhouse, yard, garden, or f»ther place or places (/), by virtue of a warrant under their hands and seals, to cause every such dwelling-house, outhouse, yard, garden, or place to be searched in the daytime : and if any such (m) materials susj)ected to be ])urloined or embezzled shall be found therein, to cause the same, and the person or persons in whose house, outhouse, yard, garden, or other place the same shall bt' found, to be brought before any two justices of the peace for the same county, riding, division, city, liberty, town, or place ; and if the said person or ];n'rs by the saim-, then the suiil person or persons so oifcnilini^' sh;ill he deemed .uid adjudj,'ed Lcuilty of a misdemeanor, and sliidl be punished in manner hereinafter mentioned, ahliouifli uo pi'oof sliall he L,'iven to whom sucli materials hehmj;." Section 11. "That every ])eace officer, constable, lieadljorougli, or tvthinnman, in every county, city, town corporate, or other ]dace, wliere tliere shall be officers, and every beadli- within his ^vard, ])ai'i-r> (1788). Ail Act for the better and more effectual i)rotectioh of atocJcing frames and the ■machines or engines annexed thereto or used thereivith, and for the punishment of persons destroying or injuring of such stocking frames, machines or engines, and the framework knitted, j)ieces, stock- ings and other articles ami goods used and made in the hosiery or frameivork knitted manufactory, or breaking or destroying any ma- chinery contained in any mill or mills used or any way employed in repairing or spinning of imol or cotton for the use of the stocking frame. Section 1 states that any framework knitters who refuse to deliver up frames let to them on hire shall forfeit the sum of twenty shillings. Section 2 states that a person who has liired a stocking frame, &c., and who wrongfully disposes of it, may be imprisoned for not less than three months and not exceeding twelve. Section 3 jiunishes in like manner those who wilfully and knowingly purchase frames or machines so disposed of. Section 4 is repealed by Statute Law Revision Act, 1871. 6 & 7 VICT. C.-40 (1843). An Act to amend the laws for the prevention of frauds and, abuses by persons employed in the xooollen, worsted, linen, cotton, flax, mohair, and silk hosiery manufactures ; and for the further securing the pro- perty of the manufacturers and the wages of the vjorhnen engaged therein. Section 1 recites 8 & 9 Wm. III. c. 36 ; 1 Anne, St. 2, c. 18 ; 9 Anne, c. 32 ; 12 Geo. I. c. 34 ; 13 Geo. II. c. 8 ; 22 Geo. II. c. 27 ; 17 Geo. III. c. 56 ; 32 Geo. III. c. 44 (repealed), and enacts, " that from and after the commencement of this Act, so much of the said recited Acts or any of them as relates to the Avoollen, linen, cotton, flax, mohair, and silk manufactures, or any of them, or any manufactures whatsoever made of wool, cotton, flax, mohair, or silk materials, whether the same be or be not mixed with each other or with any other materials, shall, so far as respects the manufactures, trades, occupations, and employ- ments hereinafter mentioned, be, and the same are hereby repealed, save and except so far as the same may have repealed any former Acts or enactments." Section 2. " That if any person whosoever entrusted with any woollen, worsted, linen, cotton, flax, mohair, or silk materials for the A A 354 THE LAW OF MASTER AND SERVANT. purpose (if beiuf,' prcjiared, worked up, or manui'actured, eitlier 1)v him- self 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, or for any purpose or work connected with manufacture or incidental thereto, or any ])arts, branches, or processes thereof, or any tools or apparatus for manufacturing!; tlie said materials, shall sell, pawn, purloin, embezzle, secrete, exchange, or otherwise fraudulently dispose of the same materials, tools, or apparatus, or any part thereof, he shall, upon being thereof lawfully convicted by the oath of the owner of siu-h materials, tools, ov 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," &c. Section 3. " That if any person whosoever intrusted with any woollen, worsted, linen, cotton, flax, mohair, or silk niati-rials, for the pur- pose of being prepared, worked uji, or manufactured, either by him- self 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, or for any purpose or work connected with manufacture or incidental thereto, or any parts, branches, or processes thereof, or with any tools or apparatus for manufacturing the said materials, shall neg- lect or delay to return the said materials, tools, or apparatus, or any part thereof, for the space of fourteen clear days after being reciuired so to do by the ]iarty 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 business of such person (unless prevented by some reasonable and sufficient 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 materials, tools, or apparatus as shall not be re- turned to the person so enti'usting him therewith within the time afore- said, 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 offence be liable to be proceeded against for embezzlement, in the same manner, and subject to the same forfeiture .and penalty, with costs, and to beapjdiedin the same manner, as are respectively hereinbefore prescribed and imposed in respect to persons selling, pawning, purloining, embezzling, secreting, exchanging, or otherwise fraudulently disposing of the said materials." Section 4. "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, llax, mohair, or silk materials, and whether the same or any part of the said materials be or be not Avholly or partially wrought, made up, or manufactured into merchantable wares, or any tools or apparatus for maiuifacturing the same, knowing that such materials, tools, or apparatus are purloined or embezzled or TnE EMBEZZLEMENT ACTS. 3.55 fraudulently disposed of, or tliat the person from Avlioni lie sliall imr- chaso, take in pawn, or receive the same, is fraudulently or unlawfully disposing' thereof, or knowing,' such person tn he employed or entiusteiJ luanufacture Qy) in any LuildinL,', field, or otlier place, sliall be guilty of felony, and being convicted thereof shall be liable, at the discreti(jn of the Court, to be kept in penal servitude for any term not exceeding fourteen years, and not less than three years, — or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement." As to Larcenii or Emhezdement hj Clerks, Servants, or Persons, in the Puhlic Service. Section G7. " Whosoever, being a clerk or servant ((/), or being em])loyed for the purpose or in the capacity of a clerk or servant, shall steal any chattel, money, or valuable security belonging to ov in the jDossession or ])Ower of his master or employer shall be guilty of felony, and bein"- convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years, and not less than three years, or to be imprisoned lor any term not exceeding two years, with or without hard lab(jur, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping." Section G8. "Whosoever, being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant, shall fraudulently embezzle any chattel, money or valuable security, which shall be deli- vered to or received or taken in possession by him for or in the name or on the account of his master or employer, or any part thereof, shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money, or security was not received into the po.s- session of such master or employer otherwise than by the actual posses- sion of his clerk, servant, or other person so employed, and being con- victed thereof shall Ije liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years, — or to be imprisoned for any term not exceeding two yeai-s, with or Avithoiit hard labour, and with or without solitary confine- ment, and, if a male under the age of sixteen years, with or without whipping." 24 & 25 VICT. c. 97 (18G1). An Act to consolidate and amend the statute laiv of England and Ireland relating to malicious injuries to 'property. Section 14. " Whosoever shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any {p) B. V. Woodhcad (1836), 1 M. k (q) See Part I., Chapter III. R. 549. 3C0 THE LAW OF MASTER AND SERVANT. gooils or article of silk, Avoollcn, linon, cotton, hair, luoliair or alpaca, or of any one or more of those materials mixed with each other or mixed with any other material, or any framework knitted piece, stocking, hose or lace, being in the loom or frame, or on any machine or engine, or on the rack or tenters, or in any stage, process or progress of manufacture, or shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any warj) or shute of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any one or moi'e of those materials mixed with each other or mixed with any other material, or shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or render useless, any loom, frame, machine, engine, rack, tackle, tool or implement, whether fixed or moveable, prepared for or employed in carding, spinning, throwing, weaving, fulling, shearing, or otherAvise manufacturing or preparing any such goods or ai-ticles, or shall by force enter into any house, shop, building, or place, with intent to commit any of the offences in this section mentioned, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any time not less than three years, — or to be imprisoned iov any term not exceeding two years, with or without hard laljour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without Avliipping." Section 15. " Whosoever shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy (r) or to render useless, any machine or engine, whether fixed or moveable, used or intended to be used for sowing, reaping, mowing, threshing, ploughing or draining, or for performing any other agricultural operation, or any machine or engine, or any toed or implement, whether iixed or moveable, prepannl for or employed in any manufacture whatsoever (except the manufacture of silk, woollen, linen, cotton, hair, mohair or alpaca goods, or goods of any one or more of those materials mixed with each other or mixed with any other material, or any framework knitted piece, stocking, hose or lace), shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years, and not less than three years, — or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary coniincnicnt, antl, if a male under the age of sixteen years, with or without wliiitjiing." ('/•) Ji. V. InsJicr (1865), L. K. 1 C. C. 7. THE KMBE/.ZLKMKNl' ACTS. 3G1 26 &-27 VICT. C. 103 (l«G3j. An Act to amend the law in certain cases of luiaa^j^jro^jriation by servants ut the lyropertij of tJieir 'iiianters. " Wliereus the olfcuce ol' taking coin or other I'ood Ly a servant i'roni the possession of his master, contrary to his orders, lor the purpo.-e of yiving the same or of having the .same given to the horses or other iUiiuuds of such master, is by law a felony (a) ; Anil whereas it is desirable to alter the law in this respect : " Ue it enacted as follows :— 1. If any servant shall, contrary to the orders of his master, take from his possession any corn, pulse, roots, or other food, for the purpose of giving the same or of having the same given .to any horse or other animal belonging to or in possession of his master, the servant so oifeiid- iug shall not by reason thereof be deemed guilty of or be proceeded against for felony, but shall, on conviction of such offence before two justices of the peace, at their discretion, either be imprisoned with or without hard lab(»ur, for any term not exceeding three months, or else shall forfeit and pay such penalty as shall appear to them to be meet, not exceeding the sum of live pounds, and if such penalty shall not be paid, either immediately after the conviction, or within such period as the said justices shall at the time of the conviction appoint, the servant so offend- ing shall be imprisoned, with or without hard laboiu", for any term not exceeding three months, unless such penalty be sooner paid ; provided always, that if upon the hearing of the charge the said justices shall be of opinion that the same is too tritiiiig, or that there are circumstances in the case which render it inexpedient to inflict any punishment, they shall have power to dismiss the charge, without proceeding to a convic- tion : provided also, that if upon the trial of aiiy servant for feloniously taking from his master any corn, pulse, roots, or other food consumable by horses or other animals, such servant shall allege that he took the same under such circumstances as would constitute an ott'euce punishable under this Act, and thereof shall .satisfy the jury charged with liis trial, then it shall be lawful for^such jury to leturn a verdict accordingly ; and thereupon the Court before which such trial sliall take [dace .shall proceed to award such punishment against such servant as may be awarded by two justices of the peace on the conviction of any person under the provisions of this Act : provided also, that in case of non-pay- ment of any penalty to be imposed by the Court on such servant, he shall be imprisoned, with or without hard labom-, for any term not ex- ceeding three months, as the Court shall order, unless such penalty shall be sooner paid. (s) This Act was passed in consequence of the decision in R. v. Privett (1846), 1 Den. C. C. 193. 3G2 THE LAW OF MASTER AKD SEUVAKT. Section 2 enacts power to aiipeal against convirlion. Section 3 enacts that no certiorari shall lie. Section 4 enacts that summary proceedings may be taken under 11 & 12 Vict. c. 43, except in London and the Metrojjolitan i)olice district. Section 5 enacts that the Act shall e.xtend to England GEORCJE III. c. :>(; (ITDi). An Act for freventiiKj the anuiterfeiting of certificate.'; of the characters of servants (a). "Whkreas many false and counterfeit cliaiacters of servaiitri have either been given personally, or in writing, by evil disposed persons being, or pretending to be, the master, mistress, retainer or superintendent of such servants, or by persons who have actually retained such servants in their respective service, contrary to truth and justice, and to the -peace and security of his Majesty's subjects: And whereas the evil herein com- plained (if is not only tlitticult to be guarded against, but is also of great magnitude, and continually increasing, and no sufficient remedy has hitiierto been applied. Be it therefore enacted by the King's most excellent majesty, by and with the advice and consent of the Lords spiritual and temporal, and Conmions, in this present Parliament assem- bled, and by the authority of the same, that from and after the first day of July, one thousand seven hundred and ninety-two, if any person or persons shall falsely ])ersonate any master or mistress, or the executor, administrator, wife, relation, housekeeper, steward, agent, or servant of any such master or mistress, and shall, either personally or in writing, give any false, forged or counterfeited cliaracter to any peison offering him or her- self to be hired as a servant into the service of any person or persons, then, and in such case, every such person or persons so offending shall forfeit and undergo the penalty or punishment hereinafter mentioned and in that behalf pi-ovided. 2. And be it further enacted by the authorit)- aforesaid, that from and after the said first day of July, one thousand seven hundred and ninety- two, if any person or persons shall knowingly and wilfully pretend, or falsely assert in writing, that any servant has been hired or retained for any period of time whatsoever, or in any station or capacity whatsoever, other than that for which or in which he, she, or they shall have hired or retained such servant in his, her, or their service or employment, or (a) See as to servants' characters, Part I., Chapter XVllI. 364 THE LAW OF JIASTER AND SEKVANT. fur the soi'vice of any other person or persons, lliat then, and in cither of tlie said cases, such person or jieisons so oH'endinj^ as aforesaid shall for- feit and uudern'o the penalty or punishment liereinafter mentioned and in that behalf piovided. 3. And he it further enacted by the authority aforesaid, that from and after the said first day of July one thousand seven hundred and ninety- two, if any person or persons shall knowingly and wilfully pretend or falsely assert in writing, that any servant was discharged or left his, her, or their service at any other time than that at which lie or she was discharged or actually left such service, or that any such servant had not been hired or employed in any previous service, contrary to truth, that then, and in either of the said cases, such person or persons shall forfeit and imdergo the penalty or punishment hereinafter mentioned and in that behalf provided. 4. And be it further enacted by the authority aforesaid, that from an d after the said lii'st day of July one thousand seven hundred and ninety- two, if any person shall otter liimself or herself as a servant, asserting or pretending that he or she hath served in any service in which such servant shall not actually have served, or with a false, forged, or coun- terfeit certificate of his or her character, or shall in anywise add to or alter, efface, or erase any word, date, matter, or thing contained in or referred to in any certificate given to him or her by his or her last or former actual master or mistress, or by any other person or persons duly authorised by such master or mistress to give the same, that then, and in either of the said cases, such person or persons shall forfeit and undergo the penalty or punishment hereinafter mentioned and in that behalf pro%'ided. ."). And be it further enacted by the authority aforesaid, that from and after the said first day of July one thousand seven hundred and ninety- two, if any person or persons, having before been in service, shall, when oil'ering to hire himself, herself, or themsehes as a servant or servants in any service whatsoever, falsely and wilfully pretend not to have been hired or retained in any previous service as a servant, that then and in such case such person or persons shall forfeit and undergo the penalty or punishment hereinafter mentioned and in that behalf provided. 6. And be it further enacted by the authority aforesaid, that from and after the said first day of July one thousand seven hundred and ninety- two, if any person oi' persons shall be convicted of any or either of the ofh'nce or oflences aforesaid, by his, her, or their confession, or by the oath of one or more credible witness or witnesses, before two or more justices of the peace for the county, riding, division, city, liberty, town, or ]dace, where the offence or offences shall have been committed (which oath such justices are hereby empowered and required to administer), every such offender or offenders shall forfeit the sum of twenty pounds, one moiety whereof shall be paid to the person or persons on whose iniormation the jiarty or parties offending shall have been convicted, servants' characters. ^(jo and the other moiety thereof shall -^d and be applied foi- the use of tlie poor of the parish whei'ein the offence shall have been committed ; and if the party who shall have been so ctmvicted shall not immediately ])ay the said sum of twenty pounds so forfeited, together with the sum of ten shillings for the costs and cliarges attending such comdction, or shall not give notice of appeal, and enter into recognizance in the mannei- liereinafter mentioneil and in that behalf provided, sucli justices shall and may commit every such oii'ender to tlie house of correction or some other prison of tlie county, riding, division, city, liberty, town, or place, in wliich lie or she sliall liuve been convicted, there to remain and be kept to hard labour, without bail or mainprize, for any time not ex- ceeding three nronths, nor less than one month, or until he or she pay the said sura so forfeited, together with such costs and charges as aforesaid. 7. [Repealed by Statute Lav) Revision Act, 1871.] 8. Provided always, and be it further enacted by the authority afore- said, that if any servant or servants, wlio shall have been guilty of any of the offences aforesaid, shall, before any information has been given or lodged against him, her, or them, for such offence, discover and inform against any person or persons concerned with him, her, or them in any offence against this Act, so as such offender or offenders be convicted of such offence in manner aforesaid, every such servant or servants so discovering and informing, shall thereupon be discharged and indemnified of, from, and against all penalties and punishments to which, at the time of such information given, he, she, or they might be liable by this Act, for or by reason of such his, her, or their own offence or offences. 9. [Form of conviction, see 11 tt- 12 Vict. c. 43, s. 17, and schedule.'] 10. Provided always, and be it further enacted, that if any person shall think himself or herself aggrieved by anytliing done in pursuance of this Act, such person may appeal to the justices of the peace at the next general or quarter sessions of the peace to be held for the county or place wherein the cause of complaint shall have arisen, such appellant entering into recognizance with two sufficient sureties, in the sum of twenty pounds each, conditioned to try such appeal, and al)ide the order of, and to pay such costs as shall be awarded by, such justices at such general or ([uarter sessions, upf)n due proof of such notice being given as aforesaid, and of the entering into such recognizance ; whicli said justices shall hear and finally determine the causes and matters of such appeal in a summaiy way, and award such costs to the parties appealing or appealed against as they the said justices shall think proper, and the determination of such general or quarter sessions shall be final, binding, and conclusive to all intents and purposes ; and no conviction or order made concerning any mattei's aforesaid, or any other proceedings to be had, touching the conviction or convictions of any offender or offenders against this Act, shall be quashed for want of form, or be remo\-ed by certiorari or any other writ or process whatsoe: er into any of his Majesty's courts of record at Westminster. CHAPTER IV. THE TRUCK ACT. Enactments intended to stop frauds and abuses arising ■out of the practice of paying workmen and labourers in goods of a poor quality, or of making unreasonable and excessive deductions from wages, are very ancient. As long ago as 14G4 Parliament interfered (4 Ed. IV. c. 1, repealed by 1 & 2 Will. III. c. 36) with a view to protect labourers against being compelled to take a great part of their wages in "pins, girdles, and other unprofitable wares." Parliament declared that masters " shall pay to the carders, spinners, and all such others labourers, in any part of the said trade, lawful money for all their lawful wages, and payments of the same." In loGo the 8 Eliz. c. 7, s. G was passed for the benefit of the "sheermen, frizers, and cottoners" of Shrewsbury, to pro- hibit payment in wares. The 1 Anne, c. 18 (made per- petual by 9 Anne, c. 30 ; see also 10 Anne, c. IG, s. G) was also passed in order to prevent " the oppression of the labourers and workmen employed in the woollen, linen, fustian, cotton, and iron manufacture." It declared that payments should be by lawful coin, and not by cloth, victuals, or commodities. As the manufactures of England extended, the evils of the truck system spread ; and the Legislature interfered from time to time, now in one trade and now in another, with a view to ensure payment of wages in casli. Acts dealing with this subject were passed in 1714 (1 Geo. I. s. 2, c. 15), in 172r, (12 Geo. I. c. 34, ss. 3, 4, & 8), in 1740 (13 Goo. II. c. 8, .s. G), in l7r)G (29 Geo. II. c. 33), in THE TRUCK ACT. 367 1779 (19 Geo. III. c. 49), in 1817(57 Geo. III. c. 115, and c. 122), and 1818 (58 Geo. III. c. 51). The former Acts on the subject were repealed by 1 & 2 Will. IV., c. 36. In 1831 the present Truck Act was passed. It consolidated the whole law. It applies only to the trades mentioned in Section 19. Domestic servants and servants in husbandry are excluded from the Act (sec. 20). 1 & 2 WM. IV. c. 37. [loth October, 1831.] An Act to prohibit the payment, in certain trader, of wages in goods, or otherwise than in the current coin of the realm. Whereas it is necessary to prohibit tlie pa^aneiit, in certain trades, of wa<,^es in goods, or otherwise than in the current coin of the realm ; be it therefore unacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temijoral, and Commons, in this present Parliament assembled, and by the authority of the same, that in all contracts hereafter to be made for the hiring of any artificer («) in any of the trades hereinafter enumerated, or for the per- («) For definitions see ss. 19 & 25. For many years after the passing of the Truck Act doubts ])revailed as to the class of "artificers" to whom it applied. The Courts decided that it did not apply to persons who did not contract to work personally, and who were not paid by wages in the ordinary way. \\\ Slermanx. Barrcff, {186i), 2 H. & f;. 034 ; 33 L. J. N. S. Ex. 153, Pollock, C.B., thus defined the class of persons within the Act : " Where persons are employed to do certain work, and are to receive wages for their labour, the contract being merely for the labour, in my jiidgment that is within the Truck Act. But if the contract is not for the labour, but for tlio result or etfcct of the labour, as, for instance, a con- tract for the removal of a quantity of clay, that is not within the Act, because there the contract is not for the labour, btit for that which the labour is to accomplish." See also Parke, B., in Jiilei/ v. Warden (1848), 2 Ex. 59 ; 18 L. J. N. S. Ex. 120 ; and Bram- well, B., in Archer v. James (1862), 2 B. & S. 95 ; 31 L. J. Q. B. 153. The following are the chief cases relative to "artificers" : — Not Within the Act. EiUy V. Warden. (1848), 2 Ex. 59 ; 18 L. J. N. S. Ex. 20. (Plaintiff' had engaged to make a cutting on a projected railway at so much a cubic yard. He hired eight or nine men to work with him. Not an ' ' artificer," because he had not contracted to work personally for wages. The Act must be taken ' ' as applicable to those persons only who strictly contract as labourers, that is, to such as enter into a contract to employ their per- sonal services, and to receive pay- ment for that service in wages : " Parke, B. Sharman v. Sanders (1853), 22 L. J. N. S. C. P. 86; 13 C. B. 166 ; 3 C. & K. 298. (Plaintiff employed to load and mdoad, and burn iron-stone for defendants at a certain price per ton, paj'able at the end of each month, the defen- 308 THE LAW OF MASTER AND SERVANT. fonnance by any artificer of any labour in any of tlie said trades, the waj^es of sucli artificisr shall be made ])ayable in tlie current coin of this realm only, and not otlierwise ; and that if in any such contract the wlinle or any part of sucli waives shall be luade ])ayable in any manner otlier than in the current coin aforesaid, such contract shall be and is hereby declaref his wages or in reward for his labour, or by reason or in respect of any goods, wares, or merchandise sold, delivered, or supplied to such artificer at any shop or warehouse kept by or belong- ing to such employer, or in the profits of which such em])loyer sliall have any share or interest (b). (3. And be it further enacted, that no employer of any artificer in any of the trades hereinafter enumerated shall have or be entitled to main- tain any suit or action in any Court of law or equity against any such artificer, for or in respect of any goods, wares, or merchandise sold, delivered, or supplied to any such artificer by any such employer, whilst {b) Lair v. Praft (1843), 1 L. T. 0. you mean to get?" and gave them S. 623. (One of the defendants, the diflerence in money. In an partner in a manufacturing firm, action for wages, to whicli payment kept a shop, at which his men waspleaded,Cresswell, J., directed the were accustomed to get goods on jury that tliis mode of payment was credit. On the pay-day, once a week, vaUd. f^^ut ipiery.) Jt would appear the men who dealt at 'the shop (the that a payment in cash, but on con- plamtitf being one of them) got from dition that the money lie spent in the the shop tickets showing their debt, employer's shop, is within the Act. and carried them to the pay clerk, who Olding v. Smith (\ii)2), 16 Jar. 497 asked them, " llow much of that do 370 THE LAW OF MASTER AKD SERVANT. in his employment, ns or on account of liis wai^'cs or reward for his labmir, or for or in respect of any goods, wares, or merchandise sold, delivered, or supplied to such artificer at any shop or warehouse kept hy or belong- ing to such employer, or in the profits of which such employer shall have any share or interest. 7. And be it further enacted, that if any such artificer as aforesaid, or his wife or widow, or if any child of any such artificer, not being of the full age of twenty-one years, shall become chargeable to any parish or ])lace, and if within the space of three calendar months next before the time when any such charge shall be incurred such artificer shall have earned or have become entitled to receive any wages for any labour by him done in any of the said trades, which wages shall not have been paid to such artificer in the current coin of this realm, it shall be lawful for the overseers or overseer of the poor in such parish or place to recover from the employer of such artificer in whose service such labour was done, the full amount of wages so unpaid, and to proceed for the recovery thereof by all such ways and means as such artificer himself might have ]»roceeded for that purpose ; and the amount of the wages which may be so recovered shall l)e a^jplied 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 contained shall be construed to prevent or to render invalid any contract for the payment, or any actual payment, to any such artificer as aforesaid, of the whole or any ])art of liis wages, either in the notes of the governor and company of the Bank of England, or in tlic notes of any ])erson or persons carrying on the business of a banker, and duly licensed to issue such notes in pursuance of the laws relating to his Majesty's revenue of stamps, or in drafts or or. 15. 161. (Plaintiff and defendant in the glove trade ; plaintiff a framework knitter, and defendant a middleman, who pro- vided frames at an agreed gross i)rice ]ier dozen frames. Defendant in set- tling with the plaintiff dedneted out of the gi'ossprice per dozen certain charges which were aecording to the custom of the trade : 1, a frame lent of If. 6(1. a week per frame used by plaintiffs in his work ; 2, Is. 6(/. a week for the use of defendant's premises to work in, standing room, defendant's super- intendence of work, sorting the goods when made, and redelivering them to the master manufacturer ; 3, 7d. a week for a boy for winding the yarn, and for wear and tear of machinery ; 4, 1(/. ]ier shilling on the net earnings above 14i\ jkt week as eompensation to defendant for sums paid by him to the master manufacturer. No written contract. Held that plaintifl' was an " artificer " and defendant an " eni- ]doyer " within the Act ; that the above deductions, being according to tlie custojn of the trade and not colour- able, were not payments of wages within .see. 3, but customary modes of caleulating the amount of the wages, and not ](rohibited by sees. 1 — 3 ; that frame rents are not " rents " within sec. 23 ; that no contract in wiiting wasreipiired to make the.se deductions legal. These deductions came before the Exchequer Chamber in Arcltrr v. Jtnncs (1862), 2 15. & S. 61 ; 31 L. -1. Q. B. 1.^3; 1 L. T. K S. 26. (The decision in Cltavacr v. (Jvm- viiiiijs was revi*ewed in the Exchetpier Chamber. Three judges (Williams, AVdles, and Keating, JJ.) held that the deductions were illegal, and de- livered a joint judgment to the efleet that the benefits represented by the deductions — viz., the rent of frame and machine, fire, light, &c. — were given for work done, and that these deductions were contrivances by means of which the master made the interest of i>art of his caj)ital a first charge upon the laboiu' of his work- men. Byles, J., Bramwell, B., and Pollock, C.B., delivered separate judg- ments confirming the decision below, and in confi)rmity with Chaimrr v. Cwnuninijs. To meet this the 37 &■ 38 Viet. c. 48 (Hosiery Manufacture Wages Act) was ])assed). (c) Cutts V. IVard (1867), L. \\. 2 Q. B. 357 ; 36 L. .1. Q. B. 161. (Plaintilf signed rules of the colliery, which authorisctl the deduction from wages of rent of house, and chai-ges for tools, materials, and medical attendance generally, without specifi- cation of jiarticulars. Held that de- ductions tor rent and club for ]iro- viding medicines were legal, that parol evidence of them ndght be given, and that it was not necessary to siiecify the amounts to be deducted under each head on the written contract ; but that tlic deduction ibr wood to be used in projijiing the roof was illegal. " What the Legislature contemplated THE TRUCK ACT. 377 such artificer, for or in rcspt'ct of any such rent ; or for or in respect of any such nietUcine 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 such artificer fur any such ])urpose as aforesaid : i)rovided always, that such stoppage or deduction shall not exceed the real and true value of such fuel, materials, tools, implements, hay, corn, and provender, and shall not he in any case made from the wages of such artificer, unless the agreement or contract for such stoppage or deduction sliall he in writing, and signed liy such artificer. 24. And be it further enacted and declared, that nothing herein con- tained shall extend or be construed to extend to prevent any such employer from advancing to any such artificer any money to be by him contributed to any friendly society or bank for savings duly established according to law, nor from advancing to any such artificer any money for his relief in siclj manufacture. Whereas a custom has prevailed among the employers of artificers in the hosiery manufacture of lettinif out fi'ames and machinery to tlie artificers employed by them, and it is desirable to i)rohibit sucli letliiiLj of frames and mac;liinery, and the stoppa^^e of waj^'es for frame rents and charges in the liosii-ry manufacture. Be it enacted as follows : 1. In all conti'acts for wages the full and entire amount of all wages, the earnings of labour in the hosiery manufacture, shall be actually and positively made payable in net, in the current coin of tlie realm, and not otherwise, without any deduction or stoppage of any descriiition what- ever, save and except for bad and disputed workmanship. 2. All contracts to stop wages, and all contracts for frame rents and charges, between employers and artificers, shall l)e and are hereby declared to be illegal, null, and void. 3. If any employer shall bargain to deduct, or shall deduct, directly or indirectly, from the wages of any artificer in his employ, any part of such wages for frame rent and standing or other charges, or sliall refuse or neglect to pay the same or any part thereof in the current coin of the realm, he shall forfeit a sum of five pounds for every oftence, to be re- covered by the said artificer or any other person suing for the same in the county court in the district where the offence is committed, with full costs of suit. 4. If any frame or machine which shall have been entrusted to any artificer or other person by his employer for the purpose of being used in the hosiery manufacture for such employment, or in any process inci- dent to such manufacture, shall, Avhilst the same shall be so entrusted, be worked, used, or employed without the consent in writing of such employer or other person so entrusting such frame or machine, in the manufacture of any goods or articles Avhatever for any other jjerson than the person by whom such frame or machine shall have been so entrusted, then ami in every such case the artificer or other person to whom the same shall have been so entrusted, shall forfeit and pay the sum of ten shillings for every day on any part of which any such frame or machine shall have been so worked, used, or employed, to be recoverable by and for the benefit of the person who shall have so entrusted the same, in the county court for the district where the offence shall have Ijecn com- mitted, with full costs of suit. 5. No action, suit, or set-off between employer and artificer shall be allowed for any tleduction or stoppage of wages, nor for any contract hereby declared illegal. 6. Nothing in this Act contained shall extend to prevent the recoverv 384 THE LAW OF MASTER AND SERVANT. in the ordinui y CDurse of Lnv, by suit brought or coiumeuced for the purpose, of any dL'l)t due from tlie artificer to the emph)yer. 7. Witliiu the meanin-,^ and for the purpose of this Act, all workmen, labourers, and other persons in any manner engaged in the performance of any employment or operation, of what nature soever, in or about the hosiery manufacture, shall be and be deemed " artificers ;" and, within the meaning and for the purposes aforesaiil, all masters, foremen, managers, clerks, contractors, sub-contractors, middlemen, and other persons engaged in the hiring, employment, or superintendence of the labour of any such artificer shall be and be deemed to be " employers ;" and, within the meaning and for the purposes of this Act, any nnmey or other thing had or contracted to be paid, delivered, or given as a recom- pense, ix'ward, or remuneration for any labour done or to be done, Avhether within a certain time or to a certain amount, or for a time or for an amount uncertain, shall be deemed and taken to be the Avages of such labour; and, within the meaning and for the ])urposes aforesaid, any agreement, understanding, device, contrivance, collusion, or arrange- ment Avhatsoever on the subject of wages, whether written or oral, whether direct or indirect, to which the employer and artificers are parties, or are assenting, or by which they are mutually bound to each other, or whereby either of them shall have endeavoured to impose an obligation on the other of them, shall be and be deemed a " contract." 8. This Act shall not commence or take effect till the expiration of three calendar months next after the day of passing the same. 9. This Act may be cited for all purposes as " The Hosiery Manufac- ture (Wages) Act, 1874 " (a). (a) Willis V. Th,>rp (1875), L. \\. 10 (). 1'.. 38:3; 44 L. J. Q. B. 137. (Plaiutilf, a liiiiul IVaiiic worker in the employment of dei'eiulaiits, liosiery manufacturers ; liy the regulations of the factory, he was liable to a tine of 8(^. a day lor staying away from work without permission; plaintifi'wa.s fined for so staying away ; such deduction of wages not within section 3, and dei'endants not liable to a fine). See section 11 of the Employers' and "Workmen Act, 1875, 38 k 39 Vict, c. 'JO. CHAPTEE y. ACTS RELATIXO TO CHIMNEY SWEEPERS. ;] & 4 VICT. c. 8.-) (1S4()). An Art far titc Rcijulatinit of Cltiiniiftj Svccjn'is aiul I'hiiiiHtijx {((). 1. [Cuntinnancr of 4 d ') IT. 4, c. ;3r), //// Istddii if Jalij, 1842.J 2. That from and aiu-i' tin- 1st day of July, 1842 (//), any person who shall conij^el or knt)\viugly allow any child or young person, under the age of twenty-one years to ascend or descend a chimney, or enter a flue, for extinjj,uisliing fire therein, shall he liable to a penalty of not more than ten pounds [or less than tive pounds (c)]. 3. That from and after the passing of this Act it shall not be lawful to apprentice to any person using tlie trade or business of a chimney- sweeper any child under the age of sixteen years, and that every inden- tiu'e of such apprenticeship which may be entered into on and after such date shall be null and void. 4. [Power to j\i.stice of the peace at any time lietween the 1st July, 1841, and 1st July, 1842, to discharge from his or her apprentice.-. LEGISLATION AS TO (IIIMNKV SWKKPKUS. 3aynieiit ot'tlie amount of the penalty and costs. !). [That no inhabitant of any parish, township, or jdace shall he deemed an incompetent witness in any suit, action, information, com- plaint, a])peal, prosecution, or proceeding to he had, made, pi'osecuted, or carried on under the autliority of this Act, for any offence committed within such parish, townshij), or place, by reason of such i)ei«on bein^' rated or assessed to, or liable to be rated or assessed to, or beinu- otherwise interested in, the rates or assessments of any such jtarisli, township, or place (f).] 10. That where any distress shall l)e 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 default or want of form in any proceedings relating thereto, nor shall the party or parties distrain- ing 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 ])referred in the court of session in Scotland : Provided always, that no plaintiff or plaintiffs shall recover 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 pro- ceeding 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 where such action sliall depend, at any time before issue joined, to pay into court such sum of money as he or they shall see fit, whereupon such proceedings or orders and judgments shall be had, made, and given in, and by such coiirts as in other actions where the defendant is allowed to pay money into court. 11. That any person who shall think himself or herself aggi'ieved by any conviction by any justice or 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 twelve days after the day of such convic- tion, for the county, stewartry, riding, city, borough, division, or place wherein the cause of complaint shall have arisen ; provided that such person shall give to the complainant a notice in writing of such appeal, .and of the cause and matter thereof, within three days after such convic- tion, and seven clear days at the least before such session, and shall also either remain in custody until the session, or enter into recognizance, with two sufficient sureties, before a justice of the peace, conditioned {e) Repealed by 37 & 38 Vict. c. 96. 3S8 TIIK LAW OF :^rASTKU AXD SERVANT. personally to appear at the said se-^sinn of the 2)eace, and to try such appeal, and to abide the jud;j;nient of the court thereupon, and to pay such costs as shall be by the court awarded ; and u])ou sucli notice being given, and sucli recoj^ni/ance beinjj; entered into, the justice before wliom the same shall be entered into sliall liberate suih ]>erson, if in custody, and the Court at such sesssion shall heai' and determine the matter of the appeal, arnl 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 atlirmanee 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 en- forcing such judgment ; and all judgments, determinations, and proceed- ings of such justices not appealed from as aforesaid, and of sucli sheriff or Stewart, or quarter sessions shall be final, and not subject to review by any process of law or court wluitever, any law or usage to the contrary notwithstanding. 12. That nt) conviction or adjudication made on ai)peal therefrom shall be cpiashed for want of form, or be removed by certiorari or other- wise into any of her Majesty's superior courts of record : and no warrant of commitment shall be held void by reason of any defect therein, pro- vided it be therein alleged that the party has been convicted, and there be a "0(jd and valid conviction to sustain the same. 27 & 28 VICT. C. 87 (18G4). An Act to amend and extend the Act for the liegulation of Chimney Siceejyers. "Whereas V)y the Act of the session of the third and fourtli years of her Majesty Queen Victoria, cliapter eighty-five, ' for the reguhition of chimney .sweepeis and chimneys,' ]iro vision was made to prevent any person comi)elling or knowingly aUowing a child or young person under the age of twenty-one years to ascend or descend a chimney, or enter a flue for the purpose of sweeping, cleaning, or coring the same, or for e.x.tinguishing tire therein : And whereas it is exjtedient to amend in some particulars, and to exten i-KKVANT. 88 & :5!) A^TCT. c. 70 (1875). An Act for further AintndiiKj the Law liclating to (fliimney HveeperR. Be it t'liucted by tlie Quoeu's luos^t ExcelliMit Majesty, by and witli the advice and consent of tlie Lords .spiritual and teni])oi'al, and Commons, in this present Parliament assembled, and liy the authority of tlie same, as follows : Prdintinary. 1. This Act may be cited as The Chimney Sweepers Act, 1875. 2. This Act shall commence and take etfect from and immediately after the thirty-lirst day of December, one thousand eight hundred and seventy-five. 3. This Act shall not extend to Scotland. 4. In this Act— " Justice" means a justice of the peace or magistrate having juris- diction in the county or place where the matter lecjuiring the cognisance of a justice arises : "Court of summary jurisdiction" means justices or magistrate (however designated) acting under the Summary Jurisdiction Acts described in the schedule to this Act. Certlfirates. * 5. The chief otticer of j)olice in each police district, as defined in the schedule to this Act, may, subject to the ])rovisions of this Act, issue a certificate authorising the person thei'ein named to Ciirry on the business" of a chimney sweeper in the district. G. Every person who carries on the business of a chimney sweeper, and who employs any journeyman, assistant, or apprentice, shall take out a certificate as hereinafter mentioned. 7. A person desirous of having a certificate for a district may appl\ for one to the chief officer of police for the district, by deli\ering the application at the police station for the district nearest to the applicant's dwelling-place. The a|)pIitation shall be in \hv iuvin given in tlie sclieilule to this Act, or to the like efl'ect, and shall set I'oitli the paiticuhirs therein indicated. Thereupon a certificate shall be delivered to the ap])licant in the foi'iu given in the scheilule to this Act, or to the like etlect, signed by the chief officer of police. 8. Wliere two or more persons carry on the business of a chimney sweeper in jiarthership, it shall be sufficient for them to have one LEGISLATION AS TO CHIMNEY SWEEPKRS. .^') I c.TtificaU- fni- all llic iiartiicis, and tin- forms -ivcii in the sdicilulr 1.. this Act may 1r' iiltcird act(ir(linrisonnient for a term not exceeding six months, with or without haid labour, oi- to such imprisonment alone, with or without hard labour. ■20. If any ])erson having a certificate is convicteii of an offence against the. (Jhimney Sweepers and Chimneys Kegulution Acts, 1840 and 18(j4, LEGISLATION AS TO CHIMNKY SWEKPEKS. 303 or oitluT of tlu'iii, the court or justice bcrmt' whom he is convicted may, it" it seems fit, deprive him of his certificate for tlie residue of tlie current year ; and if any person not having' a certificate is convicted of anoffeiici- against the Chimney Sweepers and Chimneys Regulati(m Acts, 1840 and 1864, or either of tliem, the court or justice before whom he is convicted may, if it thinks fit, in addition to imposing any other penalty wliidi it may be authwised to impose, declare him dis(|ualified to hold any certificate under this Act for any term not exceeding one year ; but sucli de))rivation or discpialitication shall be suspended pending any appeal under section eleven of the Chimney Sweepers and Chimneys Regulation Act, 1840, and shall lie in the discretion of the coui't of a])] )eal in case the conviction is confirmed. 21. The chief officer of jxdice .shall enforce aiid put in execution tlie Chimney Sweepers and Chimneys Regulaticm Acts, 1840 and 18(54, without prejudice to the right of any othei- person to institute ]iroceedings thereunder. Ireland. 22. In Ireland the Lord Lieutenant (U- other chief governor or governors of Ireland for the time being .shall have power and authority under this Act in lieu of one of her Majesty's Principal Secretaries of State. 23. Penalties recovered in Ireland shall be ap])lied according to the Fines Act (Ireland), 1851, or any Act amending the same. Savings. 24. A person shall not be exempt from the provisions of any Act re- lating to idle or disorderly persons, or to rogues or vagabonds, by reason only that he has a certificate under this Act, or assists or accompanies a person having such a certificate. 25. Nothing in this Act shall interfere with the operation of any other Act in ft)rce in any city, town, or other place, or take away or abi-idge any power vested in any local authority by any general or local Act. 394 THE LAW OF MASTER AND SERVANT. THE SCHEDULE. TART 1. Police Districts akd Offickrs. Police District. Chief Officer of Police. In England. Tlie city of London, and tlie liberties thereof, exclusive of Southwark. The Metropolitan Police District. Any county, any riding, parts, divi- sion, or liberty of a county, any borough, or town maintaining a separate police force. The Commissioner of Police of the City. The Conimissioner of Police of tlie Metropolis. The chief constable or head constable, or other officer, by whatever name ealle()lice under (nio chief cdustable constitute one pcdice force for the purposes of this schedule. PAUT ir. Su.M.MARY Jurisdiction Acts. I. — England. 11 & 12 Vict. c. 43. — An Act to facilitate the ])ei formancc of the duties of Justices of the Peace out of sessions within Kn^Iand and "Wales with respect to summary convictions and orders. Any Acts amending the siinie. LEGISLATION AS TO CHIMNEY SWEEP KIW. 39i II. — Ireland. Within tlie police district of Dublin metropolis, the Acts relating' to the powers and duties of justices for that district fir the police of theii- district. Elsewhere in Ireland, tlu; Petty Sessions (Ireland) Act, 1851. Any Acts amending the same. PART III. Forms. (A). — Application for Certificate. I A. B. [names of applicant in full] of [(hoellimjplace] hereby apply for a certificate under the Chimney Sweepers Act, 1875, to authorise me to act as a chimney sweeper within police district ; and I declare that the following statement is true and correct : Dated this day of ,18 . (Signed) Names of all Ajiprentices and others iu my employment. Ages of those under 21. Date and Terra of Apprenticeship. A.B. Apprentice .... CD. Journeyman . . . . RF. 17 18 . [ ] yeai-s. A. B. (B.) — Certificate. In pursuance of the Chimney Sweepers Act, 1875, I hereby certify that A. B. [iiames of applicant infuW] of , in the county of , is authorised to carry on the business of a chimney sweeper within the from the date of this certificate. Dated the day of police district for one yeai-, reckoned ,18 . (Signed) CD., Police Officer. CHAPTER VI. ACTS RELATING TO EMPLOYMENT IN MINES. COAL MINES REGULATIOX ACT. 3', k 36 VICT. c. 76 (1872). An Ad to consolidate (ViJ anicnd the Acts relating to the Ilerjulation of Coal Mines and certain other Mines. Whereas it is expedient to consolidate and amend the law relating to the regulation and inspection of coal mines and certain other mines : 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, as follo\\'s : }'rclimi}U(nj. 1. This Act may ha cited as " The Coal Mines Kegulation Act, 1872." 2. This Act, except as herein-after piovided, .-^hall not come into operation in England and Scotland until the first day of January, one thousand eight hundred and seventy-three, and in Ireland until the first day of January, one thousand eight hundred and seventy-four, which dates are in this Act respectively referred to as the commencement of this Act. 3. This Act sliall ai)ply to mines (-0 "f ^'f''^^, niines of stratified iron- stone, mines of shale, and mines of fire-clay. PART I. Enijiloyment of Jf'omen{b), Yonnij Persons, and Children. 4. No lioy under the age of ten years, and no woman m- girl of any (a) Sees. 70 ; also llonicOlliceCii- .<: Sin. 39.5 ; and on ai>i)(^al, I.. I!, cular of 28th Nov., 1872. As to I Ch. 'iOZ ; At/. ■0'')i. of Jsic of Man- diflurence })t'tween "mine" and v. Afi/lerlirfcst, lu \l. 4 A\). 294. "iiuarry," />// v. Jl'llsn,>, -1 Dr. (/») Sec s. 72. In Faetory Aet, 41 COAL MINES RK(;ULATFON ACT. 397 age, shall Le cmployeil in or allowed to Le for llie pur])Osc of employ- ment in any mine to which this Act applies helow ground. 5. A boy of the age of ten and under the age of twelve years shall not be employed in or allowed to he for the purpose of empLjyment in any mine to which this Act applies below ground, except in a mine in which a Secretary of State, by reason of the thinness of the, seams of such mine, considers such employment necessary, and Ijy order, published as he may think lit, for the time being allows the same, nor in such case (a.) for more than six days iu any one week ; (jr, (6.) if he is employed for more than three days in any ojie week for more than six hours in any one day ; or, (c.) in any other case for more than ten hours in any one day ; or, (d.) otherwise than in accordance with the regulations hereinafter contained (c). 6. A boy of the age of twelve and under the age of thirteen j-ears, and a male young person under the age of sixteen years, shall not be em- ployed in or allowed to be for the purpose of employment in any mine to which this Act applies below ground for moi'e than tifty-four hours in any one week, or more tlian ten hours in any one day, or otherwise than in accordance with the regulations hereinafter contained. 7. For the lairjjose of the provisions of this Act with respect to the employment of boys and male young persons in a mine below ground, the following regulations shall have effect ; that is to say, (1.) There shall be allowed an interval of not less than eight hours between the period of employment on Friday and the period of employment on the following Saturday, and in other cases of not less than twelve hours between each period of em- ployment : (2.) The period of each employment shall be deemed to begin at the time of leaving the surface, and to end at the time of returning to the surface : (3.) A week shall be deemed to begin at midnight on Saturday night, and to end at midnight on the succeeding Saturday night. 8. The following regulations shall have efllect with respect to boys of the age of ten and under the age of twelve years employed in any mine to which this Act applies below ground : (1.) Every such boy shall attend school for at least twenty hours in every two weeks during which he is so employed : (2.) In computing for the purpose of this Act the time during which Vict. c. 16, " child " means a child years, and under the age of sixteen under the age of fourteen, not, as yeais ; and " woman '' a female of here, thirteen; "young person" a eigliteen years of age and upwards, person of the age of fourteen years, and not, as here, a female of the and under the age of eighteen years, age of sixteen years and upwards, not, as here, of the age of thirteen (f) See ss. 8, i', 11, ami TJ. 398 THE LAW OK MASTER AND SERVANT. a Ijny lias attended scIkkiI, tlieic shall nol lie included any time diirinj^f which such hoy has attended either, (a.) in excess of three hours at any one time, or in excess of five hours on any one day, or in excess of twelve hours in any one week ; or (6.) on •Sundays ; or (c.) before eiglit o'clock in the morning- or after six o'clock in the evening : Provided that the non-attendance of any boy at school shall be excused — (1.) For any time during which he is certified by the principal teacher of the school to have been prevented from attendance by sickness or other unavoidable cause : (2.) For any time during which the school is closed for the custi miary holidays, or for some other temporary cause ; and (3.) For any time during which there is no school which the boy can attend within two miles (measured according to the nearest road) from the residence of such boy or the mine in which he works. The immediate employer {d) of a boy in every mine to which this Act applies, who has employed such boy for any time amounting in tlu' whole to not less than fourteen days, shall on ^Monday in every week durin" the employment of such boy obtain from the i)rincipal teacher of some school a certificate that the boy so employed has in manner I'equired by this Act attended school during the preceding week, if attendance at school was so required during that week. The certificate may be in such form as a Secretary of State may from time to time prescribe. The immediate employer, Avhere he is not the owner, agent, or manager of the mine, shall deliver such certificate to the owner, agent, or manager of the mine, and the owner, agent, or manager shall obtain the delivery of such certificate, and shall keep any certificate obtained or delivered in pursuance of this section for six months in the office at the mine, and shall produce the same to any inspectfir under this Act at all rt-asonable times when required by him during that period, and allow him to inspect and copy the same. Everv l)erson who foi'ges or counterfeits any certificate requii'ed by this section or gives or signs any such certificate falsely, or wilfully makes use of any forged, counterfeit, or false certificate, shall be liable on conviction to imprisonment for a period not exceeding three montlis, with or without hard laljour. 9. The principal teacher of a school («) which is attended by any boy employed in a mine to which this Act applies may apply in writing to ((/) Not defined; hut appears to mentioned in s. 17. refer to the getter of the minerals (-•) Sec s. 10. COAL MINES IIEGULATION ACT. .'}9f) the ])ersou wlio i)ays the wages of such boy to pay such sum as herein- after mentioned on uccount of any boy in respect of wliom he may have, duly granted a certificate in pursuance of tliis Act, and after the (hite of such application, such person, so long us lie emitloys the boy, shall ])ay to the ]U'incipal teacher of the said scIkioI, for every week that the boy attends that school, the weekly sum specified in the application, not ex- ceeding two pence per week, and not exceeding one-twelfth ]iart of the wages of the boy, and may deduct the sum so paid by him from the wages payable for the services of such boy. Any person who after such application refuses to pay on demand any sum that may become due as aforesaid shall be liable to a penalty not exceeding ten shillings. 10. If an inspectoi under this Act is sutisfied 1)V iiis]>ectiiiU(if a sclmol or otherwise that the principal teacher of a sclioul who grants certificates of school attendance re([uired under this Act ought to be tlisipialified for granting such certificates for any of the following reasons ; namely, (1.) Because he is unfit to instruct children by reason either of his ignorance or neglect, or of his not having the necessary books and materials : (2.) Because of his immoral conduct : or, (3.) Because of his continued neglect to fill u]) proper certificates of school attendance : in any such case he may serve on the teacher a written notice stating the reason for such disqualification. At tlie expiration of two weeks from the date of such notice the teacher shall, subject to the appeal hereinafter mentioned, be disqualified for granting certificates. The inspector shall, so far as lie can, serve on every employer of a child who obtains certificates from such teacher a notice to the like effect as the notice served on the teacher, and also specifying a school which the child employed by such, employer can attend within two miles (measured according to the nearest road) from the place of employment or the residence of the child. Any teacher who is disqualified as aforesaid, and any employer who obtains certificates from him, may, within three weeks after the service of the notice on the teacher, appeal therefrom to the Education Department, who may confirm or reverse such dis(pialification. After a teacher is disqualified for granting certificates, no certificate given by him .shall be deemed to be a certificate in compliance with this Act, unless in the case of there being no other school which the child employed in a mine can attend within two miles (measured according to the nearest road) from the mine or the residence of such child, or unless with the ■\\Titten consent of an inspector inider this Act. The inspectors under this Act shall in their rejiorts to a Secretarv of State report the name of every teacher dis(pialified under tliis section during the preceding twelve months, the name of the school at which 400 THE LAW OF MASTER AND SERVANT. lie taught, and surli last-mentioned report shall lie conimunicated to the Committee uf Council on Education. 11. The followin;^' rejj;ulati()n shall apply to every lioy of ten and under twelve yeais of age, enqiloyed helow ground in any mine to which this Act apjdies : — The parent, guardian, or person having the custody of or control over any such hoy shall cause him to attend school in accordance with the regulations of this Act : Every such parent, guardian, or person who wilfully fails to act in conformity with this section shall be liable to a penalty of not more than twenty shillings for each oti'ence. 12. With respect to women, young persons, and children employeil above ground, in connection with any mine to which this Act applies, the following provisions shall have efi'ect : (1.) No child under the age of ten years shall be so employed : (2.) The regulations of this Act with respect to boys of ten and under twelve years of age shall apply to every child .so employi'd : (3.) The regulatnms of this Act with respect to male young persons under sixteen years of age shall apply to every woman and young person so employed : (4.) No woman, young person, or child shall be so employed Ijetween the hours of nine at night and fi\e on the follow- ing morning, or on Sunday, or after two o'clock on Saturday afternoon : {').) Intervals i'ur meals shall be allowed to e^■ery woman, young person, and child so employed, amounting in the whole to not less than half an hour during each period of employment which exceeds five hours, and to not less than one hour and a half during each jieriod of employment which exceeds eight hours. The provisions of this clause as to the employment of women, young persons, and children after two o'clock on Saturday afternoon shall not apply in the case of any mine in Ireland, so long as it is exemj)ted in writing by a Secretary of State. 13. The owner (/), agent, or manager of every mine to which this Act applies shall keep in the ofiice at the mine a register, and shall cause to be entered in such register the name, age, residence, and. date of first employment of all boys under the age of twelve y&irs, and of the age of twelve and under the age of thirteen years, and of all male young persons under the age of sixteen years who are em- ]iloyed in the mine below ground, and of all women, young persons, and children emjiloyed above ground in connection with the mine, and ;i memoian(him of the certificates uf the school attendance of such boys SEllVAKT. Wages. IC). No wages shall lie paid to any person employed in or about any mine o wliicli this Act ajtplies at or within any public hou^^e, beer simp, iir ])lafc for the sale of any spirits, beer, wine, cyder, or other spirituous or fermented li(iuor, or other house of entertainment, or any othce, t,'arden, or ])lace belonging or contiguous thereto, or occupied tlu-rewith. Every ])erson who contravenes or fails to conijih' with or jiermits any ])erson to contravene or fail to comply with this section shall be guilty (jf an offence against this Act ; and in the event of any such contraven- tion or non-compliance by any person whomsoever, the owner, agent, and manager shall each be guilty of an offence against this Act, unless lie ])rove that he had taken all reasonable means by ])ublishing and to the best of his power enfoi'ciug the ju'ovisions of this section to jirevent such contravention or non-compliance. 17. Where the amount nf wages paid to any of the persons em])loyed ill a mine to which this Act applies depends on the amount of mineral gotten l)y them, such persons shall, after the first day of August, one thousand eight hundred and seventy-three, unless the mine is exempted by a Secretary of State, be paid according tu the weight of the mineral gotten by them, and such mineral shall be truly weighed .'.ccordingly. Provided always, that nothing herein contained shall preclude the owner, agent, or manager of the mine from agreeing with the persons employed in such mine that deductions shall be made in respect of stones or materials other than mineral contracted to be gotten, which shall be sent out of the mine with the minei-al contracted to be gotten, or in respect of any tubs, baskets, or hutches being impropei'ly filled in those cases where they are filled by the getter of the mineral or his drawer, or by the ])erson immediately employed by him, such deduc- tions being determined by the banksman or weigher and check weigher (if there ba one), or in case of dillerence by a third party to be mutually agreed on by the owner, agent, or manager of the mine on the one hand, and the ])er.sons employed in the mine on the other. Where it is proved to tin- satisfaction of a Secretary of State that by reas(;n of any exigencies existing in the case of any mine or class of mines to which the foregoing provision in this section applies, it is re- ijuisite or ex})edient that the persons employed in such mine or class of mines should not be paid by the weight of the mineial gotten by them, or that the beginning of such payment l)y weight should be postponed, such Secretary of State may, if he think fit, by order exempt such mine nY class of mines I'rom tlie piovisicms of this section, either without cuiidition or during tlie time and upon tlie conditions specified in the order, or postpone in such mine or class of mines the beginning of such COAL MINES llKOULA'nON AC'l'. 403 payment Ijy M'ei^^^lit, and may from time tu time I'cvoke or alter any such order (('). II" any person contravenes or fails to comjdy witli, or i)ermits any person to contravene or fail to com])ly with, this section, he shall he l^'uilty of an offence a>i;ainst this Act ; and in the event of any con- travention of or non-compliance with this section hy any ])erson whomsoever, the owner, agent, and manager shall each he guilty of an offence against this Act, unless he prove that he had taken all reasonable means by publishing and to the best of his power enforcing the provisions of this section to prevent such contravention and non- compliance. 18. The ])ersons who are employed in a mine to which this Act api^lies, and are paid according to the weight of the mineral gcjtten by them, may, at their own cost, station a person (in this Act referred to as " a check weigher ") (j) at the place appointed for the weighing of suck mineral, in order to take an account of the weight thereof on behalf of the persons by whom he is so stationed. The check weigher shall be one of the persons employed either in the mine at whicli he is so stationed or in another mine belonging to the owner of that mine. He shall have every facility afforded to him to take a correct account of the weighing for the persons by whom he is so stationed ; and if in any mine jjropcr facilities are not aftbrded to the check weigher as re- (juired by this section, the owner, agent, and manager of such mine shall each be guilty of an offence against this Act, iinless he prove that he had taken all reasonable means by enforcing to the best of his power the provisions of this section to prevent such contravention or non-compliance. The check weigher shall not be authorised in any way to impede or interrupt the working of the mine, or to interfere with the weighing, but shall be authorised only to take such account as aforesaid, and the absence of the check weigher shall not be a reason for interrupting or delaying such weighing. If the owner, agent, or manager of the mine desires the removal of a (i) See Home Secretary's Circular, tion of the working of the mine.) Nov. 28, 1872. WhitehcAul v. Holdsicorth (1878), 4 (;■) Prentice v. Hall (1877), 37 L. Ex. D. 13 ; 48 L. J. Ex. 254 ; 39 L. T. 605 ; 26 W. R. 237. (Check T. 638 ; 27 W. E. 94. (Appellant, weigher appointed by the other appointed by the miners check miners, nuder s. 18, had been con- weigher. Subsequently, the respon- yicted and imprisoned for intimidat- dents dismissed all the miners, and ing one of the workmen, to ]irevent closed the mine. No notice was given him working for Hall. Hall applied to the appellant hy or on behalf to justices for smnmary order for of the rc.si)ondent or of the miners : check weigher's removal': lield that held that the api)ellant had, on the the check weigher had misconducted dismissal of the miners, ceased to be himself within the section, though it checkweigher, and that an action for did not appear that the intimidation damages could not be maintained.) caused any impediment or interrup- 404 THE LAW OF I\IASTER AND SERVANT. check weiiilier on tlie giduiul tliat such chock Avei^'her has impeflecl or inteiTUjDted the working of the mine, or interlerod with the weighing, or has otherwise misconducted himself, he }nay comphiin to any court of summary jurisdiction, -wlio, if of opinion that the owner, agent, or manager shows sufiicient i^riina fade ground for the I'emoval of such check weiglier, sliall call upon the check weigher to show cause against his reniDval. On the hearing of tlie case the court shall hear the parties, and if they think that at the hearing sutticient ground is shown hy the owner, agent, or manager to justhy the removal of the check weigher, shall make a summary order for his removal, and the check weigher shall thereupon be removed, hut without pn-judice to the stationing of another check weigher in his place. The Court may in every case make such order as to the costs of the proceedings as they think just. If ill pursuance of any order of exemi^tion made by a Secretary of State, the persons employed in a mine to which this Act applies are jiaid by the measure or gauge of the material gotten by them, the provisions of this section shall apply in like manner as if the term "weighing" included measuring and gauging, and the terms relating to weighing shall be construed accordingly. 19. The Weights and Measures Act, or any Act for the time being in force relating to weights and measures (k), shall apply to the weights used in any mine to Avhich this Act applies for determining the wages payable to any jjerson employed in such mine according to the weight . 24. It" a written representation is made to a Secretary of State liy tlie owner or ajj;ent of a mine not requireil at the passin;; of this Act to liave two sliafts or outlets, either — (1.) Witliin six months after the commencement of thi.'j Act, allej^in^' that by reason of the mine heinj^ nearly exhausted he ouj^lit to be exem])ted from the obligation of jn'oviding an additional shaft or outlet in ]iursuance of this Act ; or, (2.) Within six months immediately preceding the hrst day of January one thousand eight hundred and seveiity-hve, alleg- ing that an extension of time for providing an additional shaft or outlet ought to be granted to him : the (juestion as to whether such exemption or extension of time ought to be granted shall be referred t alter, and revoke rules as to the conduct of such examinations and the qualifications of the applicants, so, however, that in every such examina- tion regard shall be had to such knowledge as is necessary for the practical working of mines in the said part of the United Kingdf)m ; every such board shall make from time to time to a Secretary of State a report and return of their proceeding, and of such other matters as a Secretary of State may from time to time require. 29. A Secretary of State may from time to time make, alter, and i-evoke rules as to the places and times of examinations of applicants for certificates of competency under this Act, the number and remuneration of the examiners, and the fees to be paid by the applicants, so that the fees do not exceeil those S])ecified in schedule one to this Act. Every such rule shall be duly observed by every board appointed under this Act to whom it applies. 30. A Secretary of State shall deliver to e\ery applicant who is didy reported by the examiners to have passed the examination satisfactorily, and to have given satisfactory evidence of his sobriety, experience, ability, and general good conduct, such a certificate of competency as the case requires. The certificate shall be in such form as a Secretary of State from time to time directs, and a register of the holders of such certificates shall be kept by such person and in such manner as a Secretary of State from time to time directs. 31. Certificates of service for the purposes of this Act shall be granted by a Secretary of State to every person who satisfies him either that before the passing of this Act he was acting, and has since that day acted, or that he has at any time within five year.s before the passing of this Act for a period of not less than twelve months acted, in the capa- city of a manager of a mine or such part of a mine as can under this Act be made a separate mine for the purposes of this Act. Every such certificate of service shall contain i)articulars of the name 410 THE LAW OF MASTER AND SERVANT. place, and time of liirtli. and the length and nature of the previous ser- vice of the pei'scjn t(i whom the same is delivered, and a certificate of service may be refused to any person who fails to give a full and satis- factory account of the particulars aforesaid, or to pay such registration fee as the Secretary of State may direct, not exceeding that mentioned in schedule one to this Act. A certificate of service shall have the same effect for the pur|)t).ses of this Act as a certificate of competency granted under this Act. 32. If at any time representation is made to a Secretary of State by an inspector or otherwise, that any manager holding a certificate under this Act is by reason of incompetency or gross negligence unfit to dis- charge his duties, or has been convicted of an offence against this Act, the Secretary of State may, if he think fit, cause inepiiry to be made into the conduct of such manager, and with respect to siu'h incjuiry the following provisions shall have effect : (1.) The inquiry shall be public, and shall be held at such ]ilace as the Secretary of State may appoint by such county court judge, metropolitan police magistrate, stipendiary magistrate, or other person or persons, as may be directed by the Secretary of State, and either alone or with the assistance of any assessor or assessors named by the Secretary of State : (2.) The Secretary of State shall, before the commencement of the iiupiiry, furnish t(i the manager a statement of the case upon which the inquiry is instituted : (3.) Some person appointed by the Secretary (jf State shall under- take the management of the case : (4.) The manager may attend the incpiiry by himself, his counsel, attorney, or agent, and may, if he think tit, In' sworn and examined as an ordinary witness in the case : (5.) The persons appointed to hold the iuipiiry, in this Act referred to as the Court, shall, upon the conclusion of the inquiry, send to the Secretary of State a report containing a full statement of the case, and their opinion thereon, and such report of, or extracts from the e\idence, as the Court think fit : (6.) The Coiu't shall liave power to cancel oi' susjiend the eertificate of tlie manager, if they iind that hi' is by reason of incom- petency or gross negligence, or of his liaviug been con- victed of an offence against this Act, unfit to discharge his duty : (7.) The (Jourt may, if they think lit, reiiuire a manager to deliver u]) his certificate, and if any manager fail, without suflicient cause to the satisfacti(jn of the Court, to comply with such re(iuisition, he shall be liable to a penalty not exceeding one hundred pounds. The Court shall hold a certificate so de- livered until the conclusion of the investigation, and shall COAL MINES REGULATION ACT. 411 then either I'estore, cancel, oi' suspend the same, accf>rJin^' to their judgment on the case : (8.) The Court shall have i'or the ])urpose of the inquiry, all the powers of a court of suniniary jurisdiction, and all the powers of an inspector under this Act : (9.) The Court may also, by summons under their hands, require the attendance of all such persons as they think tit to call before them and examine for the purpose of the inquiiy, and every person so summoned shall be allowed such expenses as wi luld be allowed t(j a witness attending on subpoena befoi'e a court of record ; and in case of disjjute as to the amount to be allowed, the same shall be referred by the Court to a master of one of the superior courts, who, on request under the hands of the members of the Court, shall ascertain and certify the proper amount of such expenses. 33. The Court may make such order as tliey think fit respecting the costs and expenses of the inquiry, and such order shall, on the appli- cation of any party entitled to the benefit of the Siime, be enforced by any court of summary jurisdiction as if such costs and expenses were a ])enalty imposed by such Court. The Secretary of State may, if he think fit, pay to the members of the Court of iucpiiry, including any assessors, such remimeration as he may Avith the consent of the Treasury app<)int. Any costs and expenses ordered by the Court to be paid by a Secretarv of State, and any remuneration paid under this section, shall be paid out of moneys provided by Pailiament. 34. Where a certificate of a manager is cancelled or suspended in pur- suance of this Act, a Secretary of State shall cause such cancellation or suspension to be recorded in the register of holders of certificates. A Secretary of State may at any time, if it is shown to him to be just so to do, rencAV or restore, on such terms as he think fit, any certificate which has been cancelled or suspended in pursuance of this Act. 35. Whenever any person proves to the satisfaction of a Secretary of State that he has, without fault on his part, lost, or been deprived of any certificate previously granted to him under this Act, such Secretary of State shall, upon payment of such fee, if any, as he may direct, but not exceeding the fee specified in Schedule One to this Act, cause a copy of the certificate to which the applicant appears by the register to be entitled, to be made out and certified by the person who keeps the register, and delivered to the applicant, and any copy which purj)orts to be so made and certified as aforesaid shall have all the efi'ect of the original certificate. 36. All expenses incurred by a Secretary of State with the con- currence of the Commissioners of Her Majesty's Treasury in carrying into effect the provisions of this Act Avith resjoect to certificates of competency or service shall be defrayed out of moneys provided by Parliament. 412 THE LAW OF MASTER AND SERVANT. All fees payaMi" liy tiic ap]iliraiits for cxaiiiinatioii for or for a copy of ii cLitificatc under tliis Art sliall l)e paid into tlie receipt of Her -Majesty'.-* ExcluMiner in siicli manner us tlie Treasury may from time to time direct, and be carried to the Consolidated Fund. .37. Every person who commits any of the following nU'ences ; that is to say,— (1.) Forges, or counterfeits, or knowingly makes any false statenu'nt in any certificate of competency or ser^^ce under this Act, or any otticial copy of such certificate ; or (2.) Knowingly \itters or uses any such certificate or coi)y which has been forged or counterfeited (u- contains any false state- ment ; or (3.) For the purpose of obtaining, for himself or any other person, employment as a certificated manager, or the grant, renewal, or restoration of any certificate under this Act, or a copy thereof, either (((.) makes or gives any declaration, representation, state- ment, or evidence which is false in any particular, or (/).) knowingly utters, produces, or makes use of any such declaration, representation, statement, or evidence, or any document containing the same, shall be guilty of a misdemeanour, and be liable on conviction to imprisonment for a term not exceeding two years, with or without hard labour. Eetiir)is, Notici's, ami Ahandonnn'nf. 38. On or l)efore the first day of February in every year the ownei', agent, or manager of every mine to which this Act apjjlies shall .send to the inspector of the district on liehalf of a Secretary of State a correct return, specifying, with respect to the year ending on the preceding thirty-first day of December, the quantity of coal or other mineral wrought in such mine, and the number of persons ordinarily employed in or about such mine below ground and above ground, distinguishing the persons employed below gi-ound and above ground, and the ditlerent clas.ses and ages of the ])ersons so eniiilnyed whose hours of labour are regulated by this Act. The return shall be in such Ibrm as may be IVom time to time ])re- scribed by a Secretary of State, and the insjiector of the district on behalf of a Secretary of State shall from time tn time on apjilication tui-nish forms for the ])uri)ose of such return. The Secretary of State may publish the aggregate results of such re- turns with res])ect to any ])ai-ticular county or in.s])ector's distiict,or any large portion of a county or iiispccldi's distiict, Imt the individual letui'ii shall not l)e ]mblished without the coiisi'ut of the person making the same, or of the owner ol the mine to which tliey relate, and no person COAL MINES REGULATION ACT. 4 I :i except ivn iiisjicclor or Si'cretaiy of Slate sliall lie entitled, \villK)nt sucli consent, to see the same. Every owner, agent, or manager of a mine wlio fails to comply with this section or makes any return which is to his knowledge false in any particular shall be guilty of an offence against this Act. 39. Where in or about any mine to which this Act a])])lies, wluither above or below ground, either (1.) loss of life or any personal injury to any person em])loyed in or about the mine (jccurs by reason of any ex])losi(jn of gas, powder, or of any steam 1>oiler ; or (2.) loss of life or any serious personal injury to any pt'rson em- ployed in or about the mine occurs by reason nf any acciilent whatever, the owner, agent, or manager of the mine shall, within rweiity-fcur hours next after the explosion or accident, send notice in writing of the explosion or accident, and of the loss of life or personal injury (o) occasioned thereby to the inspector of the district on behalf of a Secre- tary of State, and shall specify in such notice the character of the explosion or accident, and tlie number of persons killed and injured res])ectively. Where any personal injury, of which notice is required to be sent under this section, results in the death of the pei'son injured, notice in writing of the death shall be sent to the in.spector of the district on behalf of a Secretary of State within twenty-four hours after such death comes tn the knowledge of the owner, agent, or manager. Every owner, agent, or manager who fails to act in compliance with this section shall be guilty of an otl'ence against this Act. 40. In any of the following cases, luimely, (1.) Where any working is commenced for the pur])ose of opening a new shaft for any mine to which this Act applies ; (2.) Where a shaft of any mine to which this Act a])plies is aban- doned or the working thereof discontinued ; (3.) Where the working of a shaft of any mine to which this Act a])plies is recommenced after any abandonment or discon- tinuance for a period exceeding two months : or (4.) Where any change occurs in the name of, or in the name of the owner, agent, or manager (jf, any mine to which this Act applies, or in the ofhcers of any incorporated company which is the owner of a mine to which this Act applies, the owner, agent, or manager of such mine shall give notice thereof to the inspector of the district within two months after such commence- ment, abandonment, discontinuance, recommencement, or change, and if such notice is not given the owner, agent, or manager sliall be guilty of an offence against this Act. (o) See UndcrhiU v. Loiiyrldge (1869), 29 L. J. M. C. 65. 414 'I'lIK LAW OF MASTER AND SKUYA-^T. 41. AVIk'Iv imviiiiiu' to -wliicli tliisAct ajiplicsis aliaiuloiUMl (^>), or tine workin-- theivot' discontinueil, at wliatever time sucli abauilomm-iit or dis- contiinianci' uecurrcd, tlu' owner thereof, and every other ])erson in- terested in tlie minerals of such mine, shall cause the top of the shaft and any side entrance from the surface to he and to Vie kept securely fenced for the prevention of accidents : Provided that — (1.) Subject to any contract to the contrary, the owner of the mine shall, as between him and any other person interested in the minerals of the mine, l)e liable to carry into effect this section, and to pay any costs incurred by any other person interested in the minerals of the mine in carrying,' this section into effect : (2.) Nothing in this section shall I'xemjit any jiersou from any liability under any other Act, or otherwise. If any person fail to act in conformity Avith this section, he shall be guilty of an offence against this Act. Any shaft or side entrance which is not fenced as required by this section, and is Avithin fifty yards of any highway, road, footpath, or place of public resort, or is in open or uninclosed land, shall be deemed to be a nuisance within the meaning of section eight of the Nuisances Kemoval Act for England, 1855, as amended and extended by the Sanitary Act, 1866 {q). 42. Where any mine to which this Act ajiplies is abandoned, the owner of such mine at the time of such abandonment shall, within three months after such abandonment, send to a Secretary of State an accurate plan on a scale of not less than a scale of two chains to one inch, or on such other iscale as the plan used in the mine at the time of such abandonment is constructed on, showing the l.)0undaries of the workings of such mine \\\^ to the time of the abandonment, with the view of its being i)roserved under the care of the Secretary of State, but no person, except an inspector under this Act, shall be entitled, Avithout the consent of the owner of the mine, to see such plan when so sent until after the lapse of ten years from the time of such abandonment. Every person who fails to comply -with this section shall be guilty of an offence against this Act. Ins^Kction. 43. A Secretary of State may from time to time apjioint any fit per.sons to be inspectors of mines to which this Act applies, and assign them their duties, and may award them such salaries as tlie Com- (p) Stott V. Dickinson (1870), 34 547 ; 47 L. J. M. C. 25. L. T. 291. •'Abandoned" ajiplies to ('/) IJotli Acts rci)eak'd by Public mines abandoned before or attcr tlie Health Act, 1875 (38 & 3, only give notice when the danger could he actually remedied by the occupier of tlic mine ; tliat the sec- tion did not extend to a case in which the source of danger was li(yond ]ns control ; and that the only icniedy in the circumstances was pro- vided by s. [)l, sub-sec. (j. COAL MINES RECULATIOX ACT. 417 ajiplies shall keep in tlic. office iit tlie mim' an accuriite plan of tlic, workiiij^s of such iiiiiu', and showing the workings up to at least six months iireviously. The owner, agent, or manager of the mine shall produce to an in- spector under this Act at the mine, such plan, and shall, if rerjuested by the insi)ector, mark on such plan the progress of the Avorkings of tlu; mine u]) to the time of such production, and shall allow the inspector to examine the same ; hut the inspector is not hereby authorized to make a copy of any part of such plan. If the owner, agent, or manager of any mine to which this Act applies fails to keep such plan as is prescribed by this section, or -wilfully refuses to produce or allow to be examined such plan, or wilfully Anthholds any portion of any plan, or conceals any part of the workings of his mine, or produces an imperfect or inaccurate plan, unless he shows that he was ignorant of such concealment, imperfection, or inaccuracy, he shall l)e guilty of an offence against this Act ; and, further, the inspector may, by notice in writing, (whether a penalty for such offence has or has not been inflicted,) require the owner, agent, or manager to cause an accurate plan, such as is prescribed by this section, to be made within a reasonable time, at the expense of the owner of the mine, on a scale of not less than a scale of two chains to one inch, or on such other scale as the plan then used in the mine is constructed on. If the owner, agent, or manager fail within twenty days, or such further time as may be shown to be necessary, after the requisition of the inspector to make or cause to lie made such })lan, he shall l)e guilty of an offence against this Act (s). 48. Every inspector under this Act shall make an annual rcjiort of his proceedings during the preceding year to a Secretary of State, which report shall be laid before both Houses of Parliament. A Secretary of State may at any time direct an inspector to make a special report with respect to any accident in a mine to Avliich this Act applies, which accident has caused loss of life or personal injury to any person, and in such case shall cause such report to be made public at such time and in such manner as he thinks expedient. Arhitration, 49. With respect to arl titrations under this Act, tlie fnlloM'ing pro- visions shall have effect : (1.) The parties to the arbitration are in this section deemed to he the owner, agent, or manager of the mine on the one hand, and the inspector of mines (on behalf of the Secretary of State) on the other : (2.) Each of the parties to the arbitration may, witliin twenty-one days after the date of the reference, appoint an arbitrator : (s) Note the difference IVoui s. 19 of Metalliferous Mines Regulation Act. 418 THE LAW OF JIASTEK AND SERVANT. (3.) No ]ier.s()ii shall ait as arliitrator or umpire under tlii.s Act who is i-mployed in or in tlu- niana^'fuiont of or is interested in the mine to which the arliitration relates : (4.) The appointment ot" an arl)itrator under this section shall he in ■writing, and notice of the ai)pointment shall he forthwith sent to the other party to the arbitration, and shall not l)e revokeil ■without the consent of such other ])arty : ' (;").) The death, removal, or other change in any of the parties to the arhitratiun sliall not atfect the proceedings under this section : (fi.) If within the said twenty-one days either of the parties fail to ai)point an arbitrator, the arbitrator ajipointed by the other jiarty may proceed to hear and determine the matter in difference, and in such case the awai'd of the single arbitrator shall be final : (7.) If before an award has been made any arbitrator appointed l)y either party die or become incapable to act, or for fourteen days refuse or neglect to act, the party by whom such arbi- trator Avas appointed may appoint some other person to act in his place ; and if he fail to do so within fourteen days after notice in writing from the other party for that purj»ose, the remaining arbitrator may proceed to hear and determine the matters in ilifference, and in such case the award of such single arbitrator shall be final : (8.) In eitliei- of the foregoing cases where an arbitrator is em- ])owered to act singly, upon one of the ]tarties failing to a])point, tlic i)arty so failing may, before the single arbitra- tor has actually jiroceeded in the arbitrati(m, aj)point an arbitrator, who shall then act as if no failui'e had been made: (!).) If the arbitrators fail to make their award within twenty-one days after the oiiited, the party who appointed him may aj)])oiiit another arbitrator to act in his jtlaee : (1.").) The arbitrators and their umpire or any of them may examine the parties and their witnesses on oath, they may also consult any counsel, engineer, or scientific person whom they may think it e.\})edient to consult : (16.) The jiayment, if any, to be made to any arbitrator or umpire for his services shall be fixed by the Secretai-y of State, and together with the costs of the arbitration and award shall bi- paid by the jiarties or one of them according as the award may direct. Such costs may be taxed by a master of one of the superior courts, who, on the written application of^ either of the parties, shall ascertain and certify the proper amoinit of such costs. The amount, if any, ])ayable by the Secretary of State .shall be i)aid a-< part of the expenses of inspectors under this Act. The amount, if any, payable by the owner, agent, or manager may in the event of non- j)ayment l>e recovered in the same manner as penalties under this Act : (17.) Every person Avho is appointed an arbitrator or umpire under thi.s section shall be a practical mining engineer, or a person accustomed to the working of mines, l)ut when an award has been made under this section the arbitrator or umpire who made the same shall be deemed to have been duly (jualified as provided by this section. Coro)icrs. 50. With respect to coroners' inquests on the bodies of persons whose death may have been caused by explosions or accidents in mines to which this Act applies, the following provisions shall have eH'ect : (I.) "Where a cm-oner holds an inquest upon a body of any person whose death may have been caused by any explosion or acci- dent, of which notice is required T)y this Act to be given to the inspector of the district, the cmoner shall adjourn such inquest unless an ins])ector, or some person on behalf of a Secretary of State, is present to watch the ]iroceedings : (2.) The coroner, at least four days before holding the adjourned inquest, shall send to the inspector for the district notice in writing of the time and place of holding the adjourned in(piest : K E 2 4£0 THE LAW OF MASTER AND SERVANT. (3.) The coroner, licfore tlit; adjounniR'nt, iiiuy take evidence to identify the body, and may order the interment thereof : (4.) If an explosion or accident has not occasioned the death of more than one person, and the coroner has sent to the in- spector of the district notice of tlie time and ]dace of liolding tlie incjuest nut less tlian fovty-eij,dit hours before the time of liolding the same, it shall not be imperative on him to ad- journ such iuipiest in pursuance of this section, if the majority of the jury think it unnecessary so to ailjouni : (5.) An inspector shall be at liberty at any sucli infj^uest to ex- amine any witness, subject nevertheless to the order of tlie coroner : (G.) Where evidence is given at an inquest at which an inspector is not jiresent of any neglect as having caused or contributed to the explosion or accident, or of any defect in or about the mine appearing to the coroner or jury to reqviire a remedy, the coroner shall send to the inspector of the district notice in writing of such neglect or defoult : (7.) Any person having a jiersonal interest in or employed in or in the management of the mine in which the explosion or acci- dent occurred shall not be qualified to serve on the jury empanelled on the incj^uest ; and it shall be the duty of the constable or other officer not to summon any person dis qualified under this provision, and it shall be the duty of the coroner not to allow any such person to be sworn or to sit on the jury. Every person who fails to comply with the provisions of this section shall be guiltv of an offence against this Act. PART II. Rules. General liiilcf:. 51. The following general rules shall l)e observed, so far as is reason- ably practicable, in every mine to which this Act applies : (1.) An adequate amount of ventilation shall be constantlj' jiroduced in eveiy mine, to dilute and render harmless noxious gases to such an extent that the working jjlaces of the shafts, levels, stables, and workings (if such mine, and the travelling roads to and from such working places, shall be in a fit state for woi'kiug and jwissiiig therein (t). it) The rejicalcd Act, 23 &. 24 Vict. ordinary circnmstanccs " In Brongh c. 151, s. 10, had tlio words "under v. Huinfraxj (1868), L. K. 3 Q. \i. 771, COAL MINES KEGULATION' ACT. 121 (2.) In every mine in whicli inflammable gas has been found witliin the preceding twelve month.s, then once in every twenty-four hours if one shift of workmen is employed, and once in every twelve hours if two shifts are employed during any twenty-four hours, a competent person or competent persons, who shall be ajipointed for the jjurpose, shall, before the time for commencing work in any part of the mine, in- s})ect with a safety lani]) that part of the mine, and the roadways leading tlu-reto, and shall make a true report of the condition thereof, so far as ventilation is concerned, and a workman shall not go to work in such part until the same and the roadways leading thereto are stated to be safe. Every such report shall be recorded without delay in a book which shall be kept at the mine for the purpose, and shall be signed by the person making the same. (3.) In every mine in which iiiHanninible gas has not been found within the preceding twelve months, then once in every twenty-four hours a competent person or competent persons, who shall lie appointed for tlie purpose, shall, so far as is reasonably practicable immediately before time for commencing wcn'k in any part of the mine, inspect that part of the mine and the roadways leading thereto, and shall make a true report of the condition thereof so far as ventilation is concerned, and a workman shall not go to Avork in such jiart until the same and the roadways leading thereto are stated to be safe. Every report shall l)e recorde SEliVANT. ((i.) If at any tiim* it is found liy tlu- in-rson for tin- tiini; l)cinj^ in ibaij^'e of tlu' mine or any pirt thereof that hy reason of noxious gtises prevailing in such mine or siieh part thereof, or, of any cause whatever, the mine or the said part is dangerous, every workman shall be with- drawn i'rom the mine or such part tliereof as is so found dangerous, and u competent person who shall be appointeil for the purpose shall inspect the mine or such ]iart thereof as is so found dangerous, and if the danger arises from inflammable gas shall inspect tlu* same witli a locked safety Uxmp, and in every case shall make a true report of the condition of siicli mine or part thereof, and a workman shall nijt, except in so far as is necessary for im^uiring into the cause of danger or for the removal thereof, or for exploration, be readmitted into the mine, or such jiart thereof as was so found dangerous, until the s;inie is stated by sncli report not to be dangerous. Every such rcpuit sliall he recorded in a book which shall be kept at the mine for the purpose, and sliall be signed by the person making the same. (7.) In every working approaching any place where tliere is likely tt) be an accumulation of explosive gas, nolanq) or light other tlian a locked safety lamp shall be allowed or used, and whenever safety lamps are required by this Act, or by the special rules made in jiursuance of this Act, to be used, a competent person Avho shall be appointed for the purpose shall examine every safety lamp immediately before it is taken into the workings for use, and ascertain it to be secure and securely locked, and in any part of a mine in which safety lamps are so rerpiired to be used, they shall not be used until they have been so examined and found secure and securely locked, and shall not without due autliority b.' unlocked, and in the said juirt of a mine a person shall not, unless lie is ap[)ointed for the jmrpose, have in bis possession any key or contrivance for opening the lock of any such safety Limp, (jr any huifer match or apparatus of any kind for striking a light. (8.) Gimpowder or other explosive or inflaninialile substance shall only be used in the mine underground as follows : (a.) It shall not be stored in the mine : {li.) It shall not be taken into the mine, except in a case or canister containing not more than four jiounds : (c.) A workman shall not have in use at one time in any one place more than one of such cases or canisters : ((/.) Ill charging holes for blasting, an iron or steel pricker sliall not be used, and a person shall not have in his posses.sion in the mine underground any iron or steel jiricker, and an iron or steel tamping rod or stenimer shall not be used for ramming either the wadding or the lirst part of tlie tani])ing or stemming on the jiowder : ((.) A charge of jiowder whiih has missi'd liii- yhall not be un- raumiid : (/) It shall not be taken into or be in the ]iossession of any person in COAL MINES RKGULATI(»N ACT. 42:'> any iiiiiu', except in caitrid^'cs, and .sliall init in- used, except in uccoidaiice with the ioUuwiu^ iv|,'ulati(iiis, duriii;,' thiee iiioiitlis lifter any inttainniulde {^as lias been found iu any such II line ; namely, (1.) A ccjinpetent person wluj shall lu- appointccl loi- lln; purpose shall, ininiediately l)efore tiiinj^ the shot, examine the place wheiv, it is to l)e used, and the phices conti^^iions thereto, and shall not allow the shot to be fired unless he finds it sale to do so, and a shot shall not be hred except by or under the direction of a competent person who shall be appointed for the ])uri)ose : (2.) If the said inflammable gas issued so freely that it showed a blue cap on the Hame of the safety lamp, it shall only be used — («.) Either in those cases ol' stone drifts, stone work and sinking of shafts, in which the ventilation is so managed that the return air from the place where the powder is used ])asses into the main return air course without passingany place in actual course of working ; or (6.) When the persons ordinaiily emjdoyed in the mine are out of the mine or out of the part of the mine Avhere it is used : {[/.) \Vliere a mine is divided into separate panels in such manner that each panel has an independent intake and return air-way fiom the main air course and the main return air course, the provisions of this rule with res[)ect to gunjjowder ov other explosive inflammable substance shall apply to each such panel in like manner as if it were a separate mine. (9.) 'Wliere a place is likely to contain a dangerous accumulation of Avater the Avorking approaching such place shall not exceed eight feet iu width, and there shall be constantly kept at a sufhcient distance, not being less than five yards, in advance, at least one bore-hole near the centre of the working, and sutficit-nt flank bore-holes on each side. (10.) Every uudei-ground plane on which persons travel, which is self- acting or worked by an engine, windlass, or gin, shall be provided (if exceeding thirty yards in length) with some proper means of signalliiii; between the stopping places and the ends of the plane, and shall be pro- vided in every case, at intervals of not more than twenty yards, a\ itli sufficient man-holes for places of refuge. (11.) Every road on which persons travel underground where the load is drawn by a horse or other animal shall be pro\ ided, at intervals of not more than fifty yards, with sufficient man-holes, or with a space for a place of refuge, which space shall be of suthcient length, and of at least 424 'J HE LAW OF MASTER AN]) SERVANT. tliieo i'l't't in widlli lictwei-u tlu- Wiig^i^'uiis running on tlio tnunioad and the side of siicli road. (12.) Every nian-liole and space for a jilace of refuge shall bo constantly kept dear, and no ])erson shall place anything in a man-hole or such space so as to prevent access thereto. (13.) The top of every shaft which for the tinu' Leing is out of use, or used only as an air shaft, shall be securely fenced. (14.) The toji and all entrances between the to]) and bottom of every working or jnunping shaft shall be properly fenced, but this shall not be taken to forbid the temporary removal of the fence for the purpose of re]>airs or other operations, if proper precautions are used. (lo.) Where the natural strata are not safe, every working or piunping shaft shall be securely cased, lined, or otherwise made secure. (l(i.) The roof and sides of every tra\elling road and working place i-hall lie made secirre, and a person sliall not, irnless appointed for the purpose of exploring or repairing, travel or work in any such tra^■elling load or working place which is not so made secure. (17.) Where there is a downcast and furnace shaft, and both such shafts are provided with apparatus in use for raising and lowering persons, every person employed in the mine shall, upon giving reasonable notice, have the option of using the downcast shaft. (18.) In any mine which is usually entered by means df machinery, a competent person of such age as prescribed by this Act shall be appointed for the purjiose of working the machinery which is employed in lowering and raising persons therein, and shall attend for the said pur])ose during the whole time that any person is below ground in the mine. (19.) Eveiy W(jrking shaft used for the purpose of ]■ ]ilaneex(e]it for tlie short coupling cliuiii attached to the cage or load. (22.) There shall be on the drum of every machine used for lowering or raising jjersons sucii fhmges or horns, and also if the drum is conical. COAL MINES RKGULATION ACT. 425 siU'li other aj)pliiinccs, as may lie sufHcic'iil to prevent, tlie rope frnm slil)piii- (v). (23.) Tlien' sliall lie attacliecl to every luacliine worked by steam, water, or iiiecluuiical ])(j\ver and used lor lowering or raising persons, an adequate break (v), and also a ])roper indicator (in addition to any mark on the rope) Avhicli shows to tlie ])erson who works the machine the position of the cage or load in the shaft. (24.) Every fly-wheel and all exposed and dangerous parts of the, machinery' used in or about the mine shall be and lie kept securely fenced. (25.) Every steam boiler shall be provided with a proper steam gauge and water gauge, to show respectively the pressure of steam and the height (jf water in the Ijoiler, and with a proper safety valve. (26.) After dangerous gas has lieen found in any mine, a barometer and thermometer shall be placed above ground in a conspicuous position near the entrance to the mine. (27.) No person shall wilfully damage, or without proper authority remove or render ;iseless any fence, fencing, casing, lining, guide, means of signalling, signal, cover, chain, flange, horn, break, indicat(jr, steam gauge, water gauge, safety valve, or (jther apjiliance or thing provided in any mine in compliance with this Act. (28.) Every person .-^hall observe such directions with respect to work- ing as may be giA-en to him with a view to comply with tliis Act or the special rules. (29.) A competent person or com})etent persons who shall lie appointed for the purpose shall, once at least in every twenty-four hours, examine the state of the external parts of the machinery, and the state of the head gear, working places, levels, planes, ropes, chains, and other works of the mine which are in actual use, and once at least in every week shall examine the state of the shafts by which persons ascend or descend, and the guides or conductors therein, and shall make a true report of the result of such examination, and such report shall be recorded in a book (v) An information was preferred the rules. The justices found, as ii imdcr this sub-suction against the fact, that the defendant had taken all part owner of a coal mine, in wiiicli reasonable means by publishing, and, one of the general rules regulating to the best of his pt)wer, enforcinrc. the employment of machines had not the rules as regulations for the work- been complied with. The general ing of the mine, to prevent such non- rules were put \ip iu various parts of compliance, and dismissed the infor- the mine, and the defendants oc- mation : held that there was evidence casionally visited the mine, but re- from which tlie justices might pro- sided at a distance, and took no part perlycome to that conclusion. Baker in the management of the mine, v. L'arfrr (1878), L. li, 3 Ex. T). which was under the exclusive con- 132 ; 47 L. J. Vi. C. 87 ; 26 AV. K. 444. trolofthe certificated manager, who (.r) Kinuaoy. Clark {IS'2), 10 M. was also part owner. The defendant 477. (I'umping gear, though serving was not examined ps a witnes.s, but the purpose of a break, not a break it was adnutted that he had not per- within the Act (23 & 24 Vict. c. sonnlly taken any means to enforce 1 •")!).) 42G THE LAW 01' jrASTF-:R A^•D sekyant. tn lie kept at till' iiiiiic Ini' the ]iin]iiis(.', and .^liall lie si,L;iie(l liy tin- pcreon ■\vlio made the siiiie [ij). (30.) The persons enipliiyiurpose, and shall be signed liy the persons who made the siime. (31.) The books mentioned in this section, or a copy therecjf, shall be kept at the office at the mine, and any inspector under this- Act, and any person employed in the mine, may, at all reasonable times, inspect and take copies of and extracts from any such books. Every person -who contravenes or does not comply Mith any of the general rules in this section shall lie gnilty of an oH'ence against this Act ; and in the event of any contravention of or non-comjiliance with any of the said general rules in the case of any mine to which this Act applies, liy any person whomsoever, being proved, the owner, agent, and manager shall each be gnilty of an oti'ence against this Act, unless he jiroves that he had taken all reasonable mean.s, by publishing and to tlut best of his power enforcing the said rules as i-egiilations for the working of the mine, to ]ucvent such contravention oi' non- compliance. iSpcriftl I'iiht<. 52. There shall be established in every mine to which this Act applies such rules (refeired to in this Act as special rules) for the conduct and guidance of the jiersdiis acting in the management of such ndne or employed in or alxiut tlie same as, under the jiarticular state aiid circumstances of sncli mine, may a]>pear best calculated to jirevent dangerous accidents, and to jirovide tor the safety and proper discipline of the persons emiiloyed in or alnjul the mine, and such special rules, w lull established, shall be signed liy the insjiector who is insjiector of the district at the time such rules are cstalilished, and shall be observed (y) Under the 2-')r(l sccliiiii i)f the re- laiiiiniiau liad delivered out certain ncahd 2'.i k 24 N'ict. c. Ifil, it was satety-lanijis unlocked. DIckinsun v. Im'M that an owner of a mine was not Flitclirr (1870), L. K. 'J C. 1'. 1 ; 43 liable! to a yieiialty in the absence of b. .1. M. C. 25 ; 29 L. T. 540. See jiersoiial ilefault when he had aji- also JJanrlls v. Landurf ISfccl t'u., pointed a coiiiiictent person to exaniiiic I,. \\. 10 (^>. !>. (i2 ; 44 L. J. Q. 13. and lock the safety lamps, ami the 2.") ; 1)2 L. T. I 'J ; 23 \V. E. 335. COAL IMIXES REGULATION ACT, 427 ill and almiit rvny .-u
  • il' tlicy were ciiucUil ill this Act. It'aiiv i)L'Vsou (■■) wlio is IkiiukI t(j oliscivi- tlic sjiccial rules cstalilisluMl lor any luiiu', acts in coiitraveiitiou of or fails to comply witli any of such special rules, he shall lie guilty of an offence a,nainst this Act, and also the owner, agent, and manager of such mine, unless he prf)ves that he had taken all reasonalile means, hy publishing ami to the l^est of his ]H)Wer enforcing the said rules as regulations for the working of the mine so as to prevent such contraventicm or non-compliance, shall each he guilty of an otfence against this Act. 53. The owner, agent, or manager of every mine to which this Act applies sliall frame and transmit to the inspector of the district, for ai)proval liy a Secretary of State, special rules for such mine -within three months after the commencement ot this Act, or within three months after the commencenieiit (if subseipient to the commencement of this Act) of any working for the purpose of o])eiiing a new mine or of renewing the working of an ohl mine. The proposed special rules, t(jgetlier with a ininted notice specifying that any objection to such rules on the ground of anything contained therein or omitted therefrom may be sent by any of the persons employed in the mine to the inspector of the district, at his address, stated in such notice, shall, during not less than two weeks before such rules are transmitted to the inspector, be posted up in like manner ivs is jirovitled in this Act respecting the publication of special rules for the information of persons employed in the mine, and a certificate that such rules and notice have been so posted up shall be sent to the inspector with the rules, signed Tiy the person sending the same. If the rules are ne liable, if the court is of opinion that a pecuniary penalty will not meet the circumstances of the case, to imi)risonnR'nt, with or without hard labour, for a period not exceeding three months. If any person fei-l aggrieved by any conviction made by a court of summary jurisdiction on determining any information under this Act, by which conviction imprisonment is adjudged in pursuance of this sec- tion, or by which conviction the sum adjudged to l^e paid amounts to or exceeds half the maxinmm penalty, the person so aggrieved may api)eal therefrom, subject to the conditions and regulations following : (1). The appeal shall be made to the next court of general or (quarter sessions for the county, division, or place in which the cause of apjieal has arisen, holden not less than twenty- one days after the decision of the court from which the ap- peal is made : (2.) The appellant sliall, within seven days after the cause of appeal has arisen, give notice to the other i>arty and to the court of summary jurisdiction of his intention to a^ipeal, and of the groiuid thereof : (3.) The appellant shall, iuiiuediateiy after such notice, enter into a recognizance before a justice of the jieace, with two sutS- cient sureties, conditioned ])ersonallv to tiy such a])peal, and to abide the judgnu'ut of the court thereon, and to pay such costs as may Ijc awarded by the court, or give such otiier security by de]>osit of nioiuy or otluvwise as the justice may allow : (4.) Tlie justice may, if lie think tit, on the a]i])el1ant entering into such recoguizauci- oi' giving suili oilier security as aforesaid, release him from custody : (5.) The court of apjieal may adjourn the ajiju-al, and ujion tlie hearing thereof they may contirm, reverse, or modify tlie ill) Ono of several owners mnv he Ih-mni, 7 K. i 1>. 7r»7 ; 26 L. J. jiroccedcd ngaiiist for jiuiKdlics ; 11. v. I\I. ( '. ]8:j. COAL MINKS ItKGULATlOX ACT. 431 (IcfisiiMi (if the tuurt ul' .suuiiuarv Jiuisdictidii, ur iciiiil llie matter to tlic court of sumnmiy jurisdiction with tlie o])iiiioii of tlic court of ai)]>L';il tlicrcoii, or make such other ordi-r in tlie matter as tlie court tliinks just. The court of ajipeal may ulso make sncli onk-r as to costs to he paid liy eitlier ])arty as the court thinks just. Provided tliat in Scothiud — (1.) This section sliall not apjily to any conviction made hy a sheriff : (•2.) Tlie term "enterin;^ into a recoj^nizance hefoii- a justice of the peace " shall mean tiudinj,' caution with the clerk of the justices of the ]ieace to the satisfaction (jf a justice of the peace, and tlie term "recognizance" shall mean a hond of cauti(jn : (3.) In Scotland it shall he comjietent to any jierson empowered to appeal by this section, to appeal against a conviction by a sheiitf to the ne.\t circuit court, or where then- are no circuit courts to the high court of justiciary at Edinburgh, in the manner prescribed by such of the provisions of the Act of the twentieth year of the reign of King George the Second, chapter forty-three, and any Acts amending the same, as relate to appeals in matters criminal, and by and imder the rules, limitations, conditions, and restiiitions contained in the said provisions. 62. All ofl'ences iinder this Act not declared t(j be misdenieanoui-s, and all penalties under this Act, and all money and costs by this Act directed to be recovered as penalties, may be prosecuted and recovered in manner directed by the Summary Jurisdiction Acts before a court of summary jurisdiction. Proceedings for the removal of a check weigher shall be deemed to be a matter on which a court of summary jurisdiction has authority by law to make an order in pursuance of the Summary Jurisdiction Acts, and summarv- orders under this Act may be madi' on com])laint before a court of summary jurisdiction in manner provided by tlie Summary Jurisdiction Acts. The " Court iif Siunmary Jurisdiction," when hearing and determining an information or complaint, shall be constituted- — {<(.) In England, either of two or more justices of the peace in petty sessions sitting at a ])lace ajj^iointed for holding petty sessions, or of some magistrate or officer for the time being empowered by law to do alone any act authorised to be done by more than one justice of the peace and sitting alone or with others at some; court or other jilace ai)pointed for the administration of justice ; or, (//.) In Scotland, of two or more justices of tlie peace sitting as jiulges in a justice of the peace court, or of the sherilf or 482 THE LAAV OF MASTER AND SERVANT. some other magistrate or otticer for the time being em- powered by law to do ah)nL' any act authorised to be done by more than (Hic justiti' of the peace, and sitting alone or with others at some conrt or otln-r jilace apjjointed for the administration of justice ; or, (r.) In Ireland, within the police district of Dublin metropolis of one of the divisional justices of that district sitting at a police court witliin the district, and elst-where of two or more justices of the peace sitting in ]>etty sessions at a place aiipointed fen- holding petty sessions. G3. In every part of the United King(him the following provisions shall have effect : (1.) Any complaint or informathm made or laid in jmrsuance of this Act shall be made or laid within three months from the time when the matter of such complaint or information respectively arose : (2.) The descriiition of any offence under this Act in the wurds of this Act shall be sufhcient in law : (3.) Any exception, exemjition, proviso, excuse, or qualification, whether it does or not accompanj^ the descrijition of the offence in this Act, m!iy be jn-oved l>y the defendant, but need not be specified or negatived in the information, and if so specified or negatived, no ]iroof in relation to the matters so specified or negatived shall be required on the part of the informant : (4.) The owner, agent, or manager may, if he think fit, be sworn and examined as an ordinary witness in the case where he is charged in respect of any contravention or non-compli- ance by another person : (5.) The court shall, if retpured by either juirty, cause minutes of the evidence to be taken and preserved : ((5.) A court of sunniiarv jurisdiction shall not imi^ose a penalty under this Act exceeding fifty pounds, but any such court may inqiose that or any less ])enalty for any one offence, notwithstanding the olfence involves a penalty of higher amount. 64. No prosecution shall be instituted against the owner, agent, or manage)- of a mine to wliich this Act applies for any offence under this Act which can be 2)rosecuted before a court of summary jurisdiction, except by an inspector or with the consent in writing of a Secretary of State ; and in the case of any offence of which the owner, agent, or manager of a mine is not guilty, if he proves that he had taken all ica- «onable means to prevent the commission then-of, an inspector shall not institute any prosecution against such owner, agent, oi- manager, if satisfied that he had taken such ivasonable means as aforesaid. Cf). In Scotland the following ))rovisions shall have efl'ect : COAL MINES REGULATION ACT. 433 (1.) All jurisdictions, powers, and autliorities necessary for tlie court of summary jurisdiction under this Act are herel)y conferred on that court : (2.) Every person found liable under this Act hy a court of sum- maiy jurisdiction in any penalty, or to pay any money or costs by this Act directed to be recovered as penalties, shall be liable in default of immediate payment to be imprisoned for a term not exceeding three months, and the conviction and warrant may be in tlie form of No. 3 of Schedule K. of the Summary Procedure Act, 1864 : (3.) In Sct)tland any penalty exceediu^Lj tifty pounds sliall be re- covered and enforced in the same manner in which any penalty due to Her Majesty under any Act of Parliament may be recovered and enforced. 66. Nothing in this Act shall prevent any person from being indicted or liable under any other Act or otherwise to any other or higher penalty or punishment than is provided for any offence by this Act, so that no person l)e ])unished twice for the same oti'ence. If the court before whom a person is charged with an offence under this Act think that proceedings ought to be taken against such person for such offence irnder any other Act or otherwise, the Court may ad- journ the case to enable such proceedings to be taken. 67. A person who is the o^vner, agent, or manager of any mine to which this Act applies, or the father, son, or brother of such owner, agent, or manager, shall not act ' as a court or member of a court of summary jurisdiction in respect of any offence under this Act. 68. "\Vliere a penalty is imposed under this Act for neglecting to send a notice of any explosion or accident or for any offence against this Act which has occasioned loss of life or personal injury, a Secretary of State may (if he think fit) direct such penalty to be paid to or distributed among the persons injured, and the relatives of any persons whose death may have been occasioned by such explosion, accident, or offence, or among some of them. Provided that — (1.) Such persons did not in his opinion occasion or contril)ute to occasion the explosion or accident, and did not commit and were not parties to committing the offence : (2.) The fact of such payment or distribution shall not in any way affect or be receivable as evidence in any legal proceeding relative to or consequential on such explosion, accident, or offence. Save as aforesaid, all penalties imposed in pursuance of this Act shall be paid into the receipt of Her Majesty's Exchequer, and shall be carried to the Consolidated Fund. In Ireland all penalties imposed and recovered under this Act shall be F F 434 THE LAW OF MASTER AND SERVANT. applied in manner directed by tlie Fines Act (Ireland), 1851, and any Act amending the same. 69. The owner, occupier, or manager of every mine shall on the first of January every year, and at any other time when recjuired by the Secretary of State, send to the inspector of his district a return of facts relating to his mine in the form given in Schedule Four. Afucellaneom. 70. If any question arises whetluT a mine is a mine to which this Act or the Metalliferous I\Iines Regulation Act, 1872, ajiplies, such question shall be refi'rred to a Secretary of State, whose decision thereon shall he final, 71. All notices under this Act shall he in writing or print, or pai'tly in writing and partly in print, and all notices and documents required by this Act to be served or sent by or to an inspector may be either de- livered personally, or served and sent by post by a prepaid letter, and if served or sent by post, shall be deemed to have been served and received respectively at the time when the letter containing the same would be delivered in the ordinary course of post, and in proving such service or sending it shall be sufficient to prove that the letter containing the notice was properly addressed and put into the post. 72. In this Act, unless the context otherwise rec^uires, — The term " mine " includes every shaft in the course of being sunk, and every level and inclined plane in the course of being driven for connnencing or opening any mine, or for searching for or proving minerals, and all the shafts, levels, planes, works, machinery, tram- ways, and sidings, both below ground and above ground, in and adjacent to a mine and any such shaft, level, and inclined i)lane, and belonging to the mine : The term " shaft" includes pit : The term " plan " includes a map and section, and a correct copy or tracing of any original plan as so defined : The term " owner " (6), when used in relation to any mine, means any person or body corporate Avho is the immediate i)roprietor, or lessee or occupier of any mine, or of any part thereof, and does not in- clude a person or body corporate who merely receives a royalty, rent, or fine from a mine, or is merely the proprietor of a mine subject to any lease, grant, or license for the working thereof, or is merely the owner of the soil, aTid not interested in the minerals of the mine ; but any contractor for the working of any mine or any part thereof shall be subject to this Act in like manner as if he were an owner, but so as not to exempt the owner from any liability : (I) See Sloti v. Dkklmon (1876), 34 L. T. 291. COAL MINES REGULATION ACT. 435 Tlic tfi-m " a,L,fcnt " (r), wlu'ii uscil in I'cliition to any mine, means any person liavinj,', on l)elialf of the owner, care or direction of any mine, or of any part thereof, and superior to a manager appointed in pur- suance 0*' this Act : The term " Secretary of State " means oul- of Her Majesty's principal Secretaries of State : The term " child " means a chihl under the age of thirteen years : The term "young person " means a person of tlie age of thirteen years and under the age of sixteen years : The term "woman" means. a female of the age of sixteen years and upwards : The term " Summary Jurisdiction Acts" means as follows : As to England, the Act of the session of the eleventh and twelfth years of the reign of Her present Majesty, chapter forty-three, intituled " An Act to facilitate the performance of the duties of justices of the peace out of sessions within England and Wales, with respect to summary convictions and orders," and any Acts amending the same : As to Scotland, "The Summary Procedure Act, 1864 : " As to Ireland, within the police district of Dublin Metropolis, the Acts regulating the powers and duties of justices of the peace for such district, or of the ]iolice of such district, and elsewhere, "The Petty Sessions (Ireland) Act, 1851," and any Act amending the same : The term " Court of Summary Jurisdiction" nieans — In Englanil and Ireland, any justice or justices of the peace, metropolitan police magistrate, stipendiary or other magistrate, or officer, hy whatever name called, to whom jurisdiction is given by the Summary Jurisdiction Acts or any Acts therein re- ferred to : In Scotland, any justice or justices of the peace, sheriff, or other magistrate, to the proceedings before whom for the trial or. prose- cution of any offence, or for the recovery of any penalty under any Act of Parliament, the provisions of the Summary Jurisdic- tion Acts may be applied. 73. In the application of this Act to Scotland — (1.) The term "Attorney- General" means the Lord Advocate : (2.) The term " injunction " means interdict : (3.) The term " misdemeanour " means " crime and offence : " (4.) The term "chairman of cpiarter sessions" means the sheriff of the county : (5.) The term " sheriff" includes sheriff substitute : (6.) The term " attending on subpoena Ijcfore a court of record " means attending on citation the Court of Justiciary : (c) As to who is " agent," see ,S7o/«s v. Jlcllor (1S75), 39 J. P. 788. F F 2 436 THE LAW OF MASTER AND SERVANT. (7.) The Queen's and Lord Treasurer's Eemembrancer shall per- form the duties of a master of one of the superior courts under this Act : (8.) The term " stipendiary magistrate " means a sheriff or sheriff substitute : (9.) Notices of explosions, accidents, loss of life, or personal injury- shall be deemed to be sent to the inspector of the district on behalf of the Lord Advocate : (10.) Section sixteen of " The Public Health (Scotland) Act, 1867," shall be substituted for " section eight of the Nuisances Re- moval Act for England, 1855, as amended and extended by the Sanitary Act, 1866." 74. The persons who at the commencement of this Act are acting as inspectors under the Acts hereby repealed shall continue to act in the same manner as if they had been appointed under this Act. 75. The special rules which at the commencement of this Act are in force under any Act hereby repealed in any mine to which this Act applies shall continue to be the special rules in such mine until special rules are established under this Act for such mine, and while they so continue shall be of the same force as if they were established under tliis Act. 76. The Acts described in Schedule Three to this Act are hereby re- pealed to the extent in the third column of that Schedule mentioned. Provided that this repeal shall not affect anything done or suffered before the commencement of this Act, and all ofi'ences committed and penalties incurred before the commencement of this Act may be punished and recovered in the same manner as if this Act had not passed. SCHEDULES. SCHEDULE L Table of maxivmm Fees to he jund in req^ed of Certificates of Managers of Mines. I'y an applicant for examination . . . Two pounds. By a])plicant for certificate of service for regis- tration Five sliillings. For copy of certificate Five shillings. COAL MINES REGULATION ACT. 437 SCHEDULE II. Proceedings of Board of Examinations. 1. Tlie board sliall meet for the despatch of LusiueBS, and shall Iroiii time to time make such regulations with respect to the summoning, notice, place, management, and adjournment of such meetings, and generally ■with respect to the transaction and management oi Ijusiness, including the (j^uoruni at meetings of the hoard, as they think fit, subject to the following conditions : — (a.) The lirst meeting shall be summoned by the inspector of the district, and shall be held on such day as may be iLxed by a (Secretary of State ; (b.) An extraordinary meeting may be held at any time on the written requisition of thi'ee members of the board addressed to the chairman ; (c.) The quorum to be fixed by the board sliall consist of not less than three members ; (d.) Every ([uestion shall be decided by a majority of votes of the members present and voting on tliat question ; (c.) The names of the members present, as well as of those voting upon each question, shall be recorded ; (/.) No business shall be transacted unless notice in writing of such business has been sent to every member of the board seven days at least before the meeting. 2. The board shall from time to time appoint some person to be chair- man, and one other person to be vice-chairman. 3. If at any meeting the chairman is not present at the time appointed for holding the same, the vice-chairman shall l)e the chairman of the meeting, and if neither the chairman nor vice-chairman shall be present, then the members present shall choose some one of their number to be chairman of such meeting. 4. In case of an equality of votes at any meeting, the chairman for the time being of such meeting shall have a second or casting vote. 5. The appointment of an examiner may be made by a minute of the board signed Ijy the chairman. 6. The board shall keep minutes of their proceedings, which may be inspected or copied by a Secretary of State, or any person authorised liy him to inspect or copy the same. 438 THE LAW OF MASTER AND SERVANT. SCHEDULE III. Date of Act. 5 & 6 Vict. c. 99 23 & 24 Vict. c. 151 25 & 26 Vict. c. 79 Title of Act. An Act to prohibit the t'liiployment of ■women and gills in mines und collieries, to regulate the employment of boys, and to make other pro- visions relating to per- sons working therein. An Act for the regulation and inspection of mines. An Act to amend the law relating to coal luines. Extent of llepeal. The whole Act so far as it relates to mines to which tliis Act ap- plies. Sections one to five, both inclusive, so far as they relate to mines to which this Act ap- plies, ami the residue of the Act entirely. The whole Act. !?; o H O W CM M ^ H-t > t— 1 Q :< pa m C O C-, .2 rt g -^ tn ^ -M •; o BD := i* a .a <5^< ■ 13 u §3 (U fl — .2 s,-s 5 >-.-^ IT 2 !z;c^^ t^ O m ■^ -s -ij rf« a ■■^ ^ s ->^ fe"g t- 1 o _rt o -^ CJ r3 r- o S^- C4-4 o -3 ti Ti . o ^ 'O B ^ 2, a o § H i^ ^5 ^ "-S 1 1 |i" o t; > c Jm i|2 C 3 rcalj, iiKlicatnr, ludder, ])latlV)rm, steam gauge, Avater gauge, safety valve, or oilier aii])liaiice or tiling jirovided in any mine in compliance with this Act. Every person wlio contravenes or does not com])ly with any of the general rules in this section shall be guilty of an offence against this Act, and in the event of any contravention of or non-compliance with any of the said general rules in the case of any mine to whicli this Act applies, hy any person whomsoever, heing proved, the owner and agent of sucli mine shall each be guilty of an offence against this Act, unless he proves that he had taken all reasonable means by i)ublishing and to the best of his power enforcing the said rules as regulations for the working of the mine to prevent such contravention or non-ccnnpliance. Special Iiide.'i. 24. The owner or agent of any mine to which this Act applies may, if he think fit, transmit to the inspector of the district, for approval by a Secretary of State, rules (referred to in this Act as special rules) for the conduct and guidance of the persons acting in the management of such mine, f)r employed in or about the same, so as to prevent dangerous accidents, and to provide for the safety and proper discipline of the l)ersons employed in or about the mine, and such special rules, when established, shall be signed liy the inspector who is inspector of the district at the time such rules are established, and shall be observed in and about every such mine in tlie same manner as if they were enacted in this Act. If any person who is bound tn obser\e the special rules established for any mine acts in contiavention of or fails to comply with any of such special rules, he shall be guilty of an offence against this Act, and also the owner and agent of such mine shall each be guilty of an offence against this Act, unless he proves that he had taken all reasonalde means by publishing and to the best of his power enforcing the said rules as regulations for the working of the mine to prevent such contra- vention or non-compliance. 25. The proposed special rules, together with a printed notice speci- fying that any objection to such rules on the ground of anything contained therein or omitted therefrom may be sent by any of the persons employed in the mine to the inspector of the district, at his address, stated in such notice, shall, during not less than two weeks before such rules are transmitted to the inspector, be posted up in like manner as is provided in this Act respecting the publication of special rules for the information of ]K'rsons employed in the mine, and a certi- ficate that such rules and notice have been so posted up shall be sent to the inspector with the rules signed by the person sending the same. If the rules are not objected to by the Secretary of State within forly days after their receipt by the inspector they shall be established. If the owner or agent makes any false statement with respect to tlie 454 TIJK LAW OF MASJHIl AND SKin'ANT. posting up of the rules and notices he shall lie guilty of an offence against this Act. 26. If the Secretary of State is of opinion that the proposed special rules so transmitted, or any of them, do not sutticiently jirovide for the ])revention of dangerous accidents in the mine, or for the safety of tlie persons employed in or about the mine, or are unreasonable, he may, within forty days after the rules are received by the ins])ector, object to the rules, aiul propose to the owner or agent in writing any modifica- tions in the rules by way either of omission, alteration, substitution, or addition. If the owner or agent do not, within twenty days after the modifica- tions proposed by the Secretary of State are received by him, object in writing to them, the proposed special rules, with such modifications, shall be established. If the owner or agent sends his objection in writing within the saitl twenty days to the Secretary of State, the matter shall be referred to arbitration, and the date of the receipt of such objection by the Secretary of State shall be deemed to be the date of the reference, and the rules shall be established as settled by an award on arbitration. 27. After .=;pecial rules are established under this Act in any mine, the owner or agent of such mine may from time to time jiropose in writing to the inspector of the district for the apjiroval of a Secretary of State any amendment of such lules or any new special rules, and the piovisions of this Act with respect to the original special rules shall apply to all such amendments and new rules in like manner, as near r.s may be, as they ajiply to the original rules. A Secretary of State may Irom time to time propose in writing to tlie o^vner or agent of a mine in which there are no sjiecial rules, any sjjecial rules, and to the owner or agent of a mine in which there are special rules, any new special rules, or any amendment to such special rules, and the provisions of this Act with respect to a jiroposal of the Secretary of State for modifying the special rules transmitted by the owner or agent of a mine shall . apply ^to all such projiosed special ruU's, new special rules, and amendments in like manner, as near as may be, as they apply to such projiosal. 28. For the purpose of making known the special rules (if any) and the provisions of this Act to all persons employed in and about each mine to which this Act applies, an abstract of the Act su})plied, on the application of the owner or agent ot the mine, by the insjiector of the district on behalf of a Secretary of State, and an entire cojty of tlie special rules (if any) .shall be jtublished as follows : (1.) The owner or agent of such mine shall cause such abstract anil rules (if any), with the name and address of the insjiector of the district, and the name of the owner or agent apjiended thereto, to be posted uj) in legible characters, in some con- spicuous place at or near the mine, where they may be con- METALLIFKIIOUS MINKS IlK(iULAT[ON ACT. 455 veiiiently read by the pi-rson employed ; and so often as tlii^ same become defaced, obliterated, or destroyed, shall cause them to be renewed with all reiisonable despatch : (2.) The owner or agent shall supply a printed copy of the abstract and the special rules (if any) gratis to each person employed in (ir about the mine who applies for such copy at the ottice at which the persons imnu'diately employed by such owner or agent ai'e paid : (3.) Every copy of the special rales shall be kept distinct from any rules which depend only on the contract between th(; employer and employed. If any owner or agent fail to act in eompiianie witli this seitiou he shall be guilty of an offence against this Act, but the owner shall not be deemed "-uilty if lie prove that he has tai-ceu all reasonable means, by enforcing the observance of this sectit)n, to prevent such non- compliance. 29. Every person who pulls dowm, injures, or defaces any proposed special rules, notice, abstract, or special rules Avhen posted up in pur- suance of the provisions of this Act with resi)ect to special rules, or any notice posted up in pursuance of the special rules, shall be guilty of an offence against this Act. 30. An inspector under this Act shall, when rec^uired, certify a copy which is shown to his satisfaction to be a true copy of any special rules which for the tinui being are established under this Act in any mine, and a copy so certified shall be evidence (but not to the exclusion of other proof) of such special rules and of the fact that they are duly established under this Act, and have been signed by the inspector. PART III. S U P P L E 11 E N T A L . Penalties. 31. Every person employed in or about a mine, other than an ovmev or agent, who is guilty of any act or omission which in the case of an owner or iigent would be an ott'ence against this Act, shall be deemed to be guilty of an offence against this Act. Every person who is guilty of an offence against this Act shall be liable to a penalty not exceeding, if he is an owner or agent, twenty pounds, and if he is any other person two pounds, for each offence ; and if an inspector has given written notice of any such offence, to a further penalty not exceeding one pound for every day after such notice that such offence continues to be committed. 32. Where a person who is an owner or agent or a person employed in or about a mine is guilty of any offence against this Act which, in the 456 THE LAW OF MASTER AND SEUVAKT. opinion of the court that tries tlio case, is one which was reasonably calcuhited to endanger tlie safety of tlie persons employed in or about tlie mine, or to cause serious personal injury to any of such persons, or tc cause a dangerous accident, and was coniniitted wilfully by the personal act, ])ersonal default, or personal negligence of tlu' pt-rson accused, such person shall be liable, if the court is of ojiiuion that a pecuniary penalty will not meet the circumstances of the case, to imprisonment, with or without hard labour, for a period not exceeding three months. If any person feel aggrieved by any conviction made by a court of sum- mary jurisdiction on deterniining any infoi'mation under this Act, by Avhich conviction imprisonment is adjudged in puisuance of this section, or 1)V which conviction the sum adjudgeil to be ])aid amounts to or exceeds half the maxinnxm penalty, the person so aggiieved iUaj'' appeal therefrom, suliject to the conditions and regulations following : (1.) The appeal shall be made to the next court of general or quarter sessions for the county, division, or place in which the cause of appeal has arisen, holden not less than twenty-one days after the decision of the court from which the ajijieal is made : (2.) The appellant shall, within se^•en days after the cause of appeal has arisen, giA'e notice to the other party and to the court of summary jurisdiction of his intentinn to aii|ieal, and of the ground thereof : (3.) The appellant shall, immediately aftt-r such notice, enter into a recognizance before a justice of the peact', with two sutticieiit sureties, conditioned personally to try such appeal, and tn abide the judgment of the court thereon, and to pay such costs as may lu- awarded l)y the lourt, or give such other security by dcpnsit (if nmney or otherwise as the justice ma>' allow : (4.) The justice may, if he think tit, on the appellant entering into siu'h recognizance or giving such other security as aforesaid, release him from custody : (5.) The court nf appeal may adjourn the ap[)eal, and upon the hearing thereof they may ct)nfirm, reverse or modify the decision of the court of summary jurisdiction, or remit the matter to the court of summary jurisdiction with the opinion of the couit of appeal thereon, oi' make such other ordei' in the mattei' as the court thinks just. The court of a])i>eal may also maki' such ordei' as to costs to be paid by either party as the court thinks just : Provided that in Scotland- (1.) This section shall not ap]dy to any conviction made by a sheriff : (2.) The term "enteiing into a recognizance before a justice of the peace" sliail mean finding caution with the clerk of the MHTALLIFEROIIS MINKS UKGIIK.VTION ACT. 457 justices of tlu' pciict' to the satisfaction of a jiistici; of tlic peace, and tlie ti^i'iii " recoL^iiizaiue " shall moan a bond of caution : (3.) It shall l)e conipeteut to any person empowered to appeal by this section, to a])peal against a conviction by a slieriff to the next circuit court, or where tliere ai-e no circuit courts to the liilace a]>piiinted for the administration of justice ; or (h.) In Scotland, of two or more justices of tlie peace sitting as judges in a justice of the peace court, or of the sheriff or some other magistrate or officer for the time bemg em- powered by law to do alone any act authorised to be done by more than one justice of the peace, and sitting alone or with others at some court or other place appointed foi- tlie administration of justice ; or (c.) In Ireland, within the police district of Dublin nietiopolis, of one of the divisional justices of that district sitting at a police court within the district, and elsewhere of two or more justices of the peace sitting in petty sessions at a place appointed for holding petty sessions. 34. In every part of the Uniteil Kingdom the following provisions shall have effect : 1. Any complaint or information made or Liid in pursuance of this Act shall be made or laid within three months froiu the time when the matter of such comjdaint or information respectivelv arose : 2. The description of any otl'ence under this Act in tlie words of this Act shall be sutlicient in law : 3. Any exception, exemption, jjroviso, excuse, or qualitication, 458 THE LAW OF MASTER AND SEUVANT. wlR'tlu-r it docs or not accompany the description of the oH'encc in this Act, may bi- proved hy the ilereu(hint, but need not be specified or negatived in tlie information, and if so specified or iie^'atived, no proof in rekition to the matters so specified or negatived shall be rec^iiired on the i)art of the infonnant : 4. The owner or agent may, if he think fit, be swoin and examined as an ordinary witness in the case where he is charged in respect of any contravention or non-compliance by anotlier person: 5. The Court shall, if retj^uired by eitlier party, cause minutes of the evidence to be taken and preserved. 35. No i)rosecution shall be instituted against the owner or agent of a mine to which tliis Act applies for any ofl'ence under this Act which can be prosecuted before a court of summary jurisdiction, except by an in- spector or with the consent in writing of a Secretary of State ; and in the case of any offence of which the owner or agent of a mine is not guilty, if he proves that he had taken all reasonable means to prevent the commission thereof, an insj^ector shall not institute any jDrosecution against such owner or agent, if satisfied that he had taken such reason- able means as aforesaid. 3(). In Scotland the following provisions shall have effect : (1.) All jurisdictions, jiowers, and authorities necessary for the court of summary jurisdiction under this Act are hereby conferred on that court : (2.) Every person found liable under this Act in any penalty, or to pay any money or costs by this Act directed to be re- covered as iienalties, shall be liable in default of immediate payment to be imprisoned for a term not e.xceeding three month.s, and the conviction and warrant may be in the form of No. 3 of Schedule K. of the Summary Proceduie Act, 1864. 37. Nothing in this Act shall jirevent any person from being indicted or liable under iiny other Act or otherwise to any other or higher ]ienalty or punishment than is provided for any offence by this Act, so that no jierson be punisheil twice tor the same offence. If the court before whom a person is charged with an offence under tliis Act think that jiroceedings ought to l)e taken against such person for such offence under any other Act or otJieivvise, llie court may adjourn the case to enable such proceedings to be taken. 38. Where a penalty is imposed under this Act for neglecting to send a notice of any explosion or accident or for any ofl'ence against this Act which has occasioned loss of life or jjersona] injuiy, the Secretary of State may (if he think fit) direct such i)enalty to be paid to or distri- Ijuted among the persons injureil,and the relatives of any persons who.se death may have been occasioned by such explosion, accident, or olfence or among some of them : METALLIFEROUS MINES llEGULATION ACT. 459 Provided that— (1.) Such persons did not in his o])iniou occasion or contribute to occasion the ex])losion or accident, and did not commit and \vei-e not parties to committing tlie ott'ence : (2.) The fact of such payment or distribution shall not in any way affect or be receivable as evidence in any legal proceed- ing relative to or conse(iuential on such explosion, accident, or oflence : Save as aforesaid, all penaltii's imposed in pursuance of tliis Act shall be paid into the recei])tof Her ^lajesty's Exchequer, and shall be carried to the Consolidated Fund, In Ireland all penalties imposed and recovered under tliis Act sliall be applied in manner directed by tlie Fines Act (Ireland), IB")!, and any Act amending the same. Miscellaneous. 39. If any ([uestion arises whether a mine is a mine to wliich this Act, or the Coal Mines Eegulation Act, 1872, applies, such (juestion shall be referred to a Secretary of State, vdiose decision thereon shall be final. 40. All notices under this Act shall be in writing or print, or jjurtly in writing and partly in print, and all notices and documents requii-ed by this Act to be served or sent by or to an inspector or Secretary of State may be either delivered personally, or served and sent by post, by a prepaid letter, and if served or sent by post shall be deemed to have been served and received respectively at tlie time when the letter con- taining the same would be delivered in the ordinary course of p(jst ; and in proving such service or sending, it shall be sufficient to i^rove that the letter containing the notice was properly addressed and i)ut int(j the post. 41. In this Act, unless the context otherwise requires, — The term " mine " (A,) includes every shaft in the course of being sunk, and every level and inclined plane in the course of being driven for commencing or opening any mine, or for searching for or proving minerals, and all the shafts, levels, planes, works, machinery, tiam- ways, and sidings, both below ground and above ground, in and a." 43. This Act shall apply to the Isle of Man, with the following modi- fications : (1.) The term " chairman of quarter sessions " means the governor, lieutenant governor, or deputy governor of the said Isle for the time lieing : (2.) The clerk of the rolls shall j.erform the duties of a master of one of the superior courts under this Act : (3.) The law of the said Isle as to the abatement or removal of nuisances affecting the health of Her Majesty's subjects shall be substituted for section eight of " The Nuisances Removal Act for England, 1855," as amended and extended by " The Sanitary Act, 186(5." 44. The persons who at the commencement of this Act are acting as inspectors under any Act hereby repealed shall continue to act in the same manner as if they had been appointed under this Act. 45. The Acts described in the Schedule to this Act are hereby re- pealed, so far as they are not repealed by the Coal Mines Regulation Act, 1872. Provided that this repeal shall not affect anytlung done or suflered before the commencement of this Act, and all offences committed and penalties incurred before the commencement of this Act may be punished and recovered in the same manner as if this Act had not passed. SCHEDULE. Date of Act. i Title of Act. 5 & G Vict. c. 99 .An Act to prohibit the employment of women and girls in mines and collieries, to regulate tlie I employment of boys, and to make f)ther provi- ' sions relating to persons working therein. _ 23 & 24 Vict. c. 151 An Act for the regulation and inspection of mines. 402 THE LAW OF MASTElt AND SERVANT. :;8 c\:- ao VICT. r. 30 (9tli July, 187;")). An Act f(i amend titc jirorisions of "The MdnUiffriiun Mi nex Regulation Act, 1872," u-ith respect to the cunntal returns fruni Mines. "Whereas hy section ten of ' The Metalliferous Mines Re^'ulation Act, 1872,' the owner and agent of every mine was reciuired to send annnally .snch return as is mentioned in that section, and it is exjtedient to make further provision with respect to such return : " Be it enacted as follows : 1. From and after the co)nniencement of this Act, the owner or agent of every mine to which "The Metalliferous Mines Regulation Act, 1872," applies shall, on or before the 1st day of Feln'uary in every year, send to the inspector of the district on behalf of a Secretary of State a correct return, specifying -with resjject to such mine, for the year ending on the preceding 31st day of December, the cj^uantity in stloye(l in any agricultimil gang : («)] (2.) No females sliall be employed in the same agricultural gang with males : (3.) No female shall be employed in any gang under any male gangniaster unless a female licensed to act as gangniaster is also ]n'esent with that gang : And any gangniaster employing any cliiLl, young person, or woman in contravention of this section, and any occupier of land on which such employment takes place, unless he proves that it took place without his knowledge, shall respectively be liable to a penalty not exceeding twenty shillings for each child, young person, or woman so employed. 5. No person shall act as a gangniaster unless he has obtained a licence to act as such under this Act. Any person acting as a gangniaster without a licence inuh'r this Act shall incur a penalty not exceeding twenty shillings for every day during which he so acts. 6. No licence shall be granted to any person who is licensed to sell beer, spirits, or any other exciseable liquor. 7. Licences to gangmasters shall be granted by two or more justices in diA-isional ]ietty sessions, on due proof to the satisfaction of such justices that the applicant for a licence is of good character, and a fit person to be intrusted with the management of an agricultural gang. The justices shall annex to their licence a condition limiting, in such manner as they think expedient, the distances within which the children employed by such gangniaster are to be allowed to travel on foot to their work, and any gangniaster violating the condition so annexed to his licence shall for each offence be liable to a penalty not exceeding ten shillings. Any person aggrieved by the refusal of the justices to grant him a licence to act as gangniaster may appeal to the next practicable Court ol General or Quarter Sessions ; and it shall be lawful for such court, if they see cause, to grant a licence to the applicant, which shall be of the same validity as if it had been granted by the justices in Petty Sessions. 8. Licences under this Act shall be in force for six months only, and may be renewed on similar proof to that on which an original licence is granted. (a) 36 k 37 Vict. c. 67, s. Ifi, 39 & 40 Vict. c. 79, employment of substituted ten for eight. By s. 5 of children under ten is generally pro- the Elementary Education Act, 1S76, liibited. 4()G THE LAW OF MASTER AND SEKVANT. 9. There shall l)e charged iu res])ect of i-ach grant or renewal of licence a fee of one shilling, ami such fee sliall be accounted for and applied in manner in wliich the fees ordinarily received by the authority gi-auting the licence are a})plicable. 10. On any conviction of a gangmastei' of any oflence against this Act the justices -who convict him shall endorse on his licence the fact of such conviction ; and on any conviction of such gangmaster of a second oflence against tliis Act the justices may, in addition to any other penalty, withhold his licence for a period not exceeding thi-ee months ; and on any conviction of any gangmaster of a third oflence against this Act the justices may, in addition to any other penalty, withhold his licence for a period not exceeding two years. And after a fourth conviction for an oflence against this Act the gangmaster shall he disqualified from holding or receiving a licence under this Act. 11. All penalties under tliis Act may be recovered summarily before two or more justices in manner directed by an Act passed in the session holden in the eleventh and twelfth years of the reign of Her Majesty Queen Victoria, chapter forty -three, intituled, An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions tvithin England and Wales with resi^ct to summanj Convictions and Orders, or any Act amending the same. 12. This Act shall not apply to Scotland or Ireland. CHAPTER YIII. children's dangerous performances act. 42 & 43 YICT. c. 34 (1879). An Act to regulate the employment of Children in places of public amusement in certain cases. Whereas it is expedient to regulate the employment of cliiklren in places of public amusement in certain cases : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the ad\ace and consent of the Lords Spiritual and Tenaporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Children's Dangerous Performances Act, 1879. 2. This Act shall not come into operation until the first day of January, one tliousand eight hundred and eighty, Avhich date is herein- after refen-ed to as the commencement of this Act. 3. From and after the commencement of this Act, any person Avho shall cause any child under the age of fourteen years to take part in any public exhibition or performance whereby, in the opinion of a court of summary jurisdiction, the life or limbs of such child shall be endangered, and the parent or guardian, or any person having the custody, of such child, who shall aid or abet the same, shall severally be guilty of an offence against this Act, and shall on summary conviction be liable for each offence to a penalty not exceeding ten pounds. And Avhere in the course of a public exhibition or performance, which in its nature is dangerous to the life or limb of a child under such age as aforesaid taking part therein, any accident causing actual bodily harm occurs to any such child, the employer of such child shall be liable to be indicted as having committed an assault ; and the . court before whom such employer is conA-icted on indictment shall have the power of award- ing compensation not exceeding twenty pounds, to be paid by such employer to the child, or to some person named by the court on behalf of the child, for the bodily harm so occasioned ; provided that no person shall be punished twice for the same offence. 4. Whenever any person is charged with an offence against this Act in respect of a child who in the opinion of the court trying the case u H H 2 468 THE LAW OF MASTER AND SERVANT. apparently of the ai;e alleged hy the informant, it shall lie on the person charged to prove that the cliikl is not of that age. 5. Every oft'ence against this Act in respect of which the person com- mitting it is liable as above mentioned to a penalty not exceeding ten pounds sliall be prosecuted and the penalty recovered with costs in a sunnnary manner, as follows : In England, in accordance with the provisions of the Act eleventh and twelfth Victoria, chapter forty-three, intituled " An Act to facilitate the perfdrniance of the duties of justices of the peace out of sessions within England and Wales with respect to sunnnary con- victions and orders," and of any Act or Acts amending the same ; and the com-t of summary jurisdiction when hearing and determining an information in respect of any offence under this Act sliall be constituted either of two or more justices of the peace in petty sessions, sitting at a place appointed for the holding of petty sessions, or some magistrate or officer sitting alone or with others at some court or other place appointed for the administration of justice for the time being empowered by law to do alone any act authorised to be done by more than one justice of the peace ; In Scotland, in accordance with the provisions of tlie Summary Procedure Act, 1864, and of any Act or Acts amending the same ; and In Ireland, within the police district of Dublin metropolis in accordance with the provisions of the Acts regulating the powers and duties of justices of the peace for such district, or of the police of such district, and elsewhere in Ireland in accordance with the provisions of the Petty Sessions ^Ireland) Act, 1851, and any Act amending or aflecting the same. CHAPTER IX. THE FACTORY ACT. During this century the Legislature has passed various Acts with a view to secure the lieallh and safety of women, young persons, and children working in factories. The first of these statutes (the 42 Geo. III. c. 73) was passed in 1802. Its operation was confined to cotton and woollen mills and factories. It was followed by several measures, all of which (with one exception) were repealed in 1833. After an ex- haustive inquiry, conducted chiefly in the seats of the textile manufactures, a general Act (3 & 4 Will. IV. c. 103) was passed. Supplementary measures were en- acted ; and before the law was consolidated, no fewer than fifteen statutes, not to mention similar Acts, such as the Chimney Sweepers Acts, the Mines Regulation Acts, were in force. A multitude of partly repealed Acts was replaced by a consolidating measure. Provisions similar to those contained in the Factory Act as to the fencing of machinery are to be found in the Threshing Machines Act of 1878 (41 & 42 Vict. c. 12). 41 VICT. c. K; (1878). ARRANGEMENT OF SECTIONS. Preliminary. Sect. 1. Short title. 2. Commencement of Act. PART I. General Law relating to Factories and Workshops. (1.) Sanitary Pronsions. 3. Sanitary condition of factory and woikshop. 470 THE LAW OF -AIASTER AND SERVANT. 4. Notice by inspector to sanitary authority of sanitary defects in factory or workshop, (2.) Safety. 5. Fencing of certain niacliinery. 6. Fencing of other dangerous machinery of which notice is given hy inspector. 7. Fencing of dangerous vats or structures of wliich notice is given hy inspector. 8. Fixing of grindstones securely and replacing of faulty grindstone when notice is given hy inspector. 9. Restriction on cleaning of machinery while in motion, or working between parts of self-acting machinery. (3.) Employment and Meal Hours. 10. Period of employment of children, young persons, and women. 11. Period of employment, &c., for young persons and women in a textile factory. 12. Period of employment for children in textile factory. 13. Period of employment, &c., for young persons and women in non- textile factory, and for young persons in workshop. 14. Period of employment for children in non-textile factory and workshop. 15. Period of employment, time for meals, and length of continuous employment for women in workshop. 16. Peri(jd of employment and time for meals for children and young l^ersons in domestic workshop. 17. Meal times to be simultaneous, and enqdoymi'iit during meal times forbidden. 18. Regulations as to period of emjjloyment on Saturday of young persons or women emj^loyed only eight hours a day. 19. Notice fixing period of employment, hours of meals, and mode of employment of children. 20. Prohibition of employment of children under ten. 21. Prohiliition of emiihiyment of children, youngpersons, and women on Sunday. (4.) Holulnys. 22. Days to be observed as holidays, and half holidays to be allowed in factories and workshops. (").) Eduration of CJiildreii. 23. Attendance at school of children employed in a factory or workshop. 24. Obtaining of sclioid alleiidance certificate by occupier of factory or workshop. THE FACTORY ACT. 471 25. Payment by occupier on application of smii for schooling of child, and deduction of it from wages. 26. ETn]>l(>ynient as young person of child of 13 on obtaining an educational certificate. (6.) Certificates of Fit ness for Employment. 27. Certificate of fitness for employment of chihlren and young persons under 16 in factories. 28. Certificate of fitness for employment of children and young persons under 16 in workshops. 29. Power of inspector to require surgical certificate of capacity of child or young person under 16 for work. 30. Supplemental provisions as to certificates of fitness for employ- ment. (7.) Arridents. 31. Notice of accidents causing death or bodily injury. 32. Investigation of and repcjrt on accidents by certifying surgeon. PART 11. Special Provisions relating to particular Classes of Factories and Workshops. (1.) Special Provisions for Health in certain Factories and JForlsluq^s. 33. Limewashing and washing of the interior of factories and workshops. 34. Limewashing, painting, and washing of the interior of bake- houses. 35. Provision as to sleeping places near bakehouses. 36. Provision as to ventilation by fan in factories and workshops. 37. Protection of workers in wet-spinning. (2.) Special Restrictions as to Employment, Meals, and Certificates of Fitness. 38. Prohibition of employment of children and young persons in certain factories or workshops. 39. Prohibition of taking meals in certain parts of factories and workshops. 40. In print works and bleaching and dyeing works, period of em- ployment and times allowed for meals. 41. Power to require certificates of fitness for eniplopuent of children and young persons under 16 in certain workshops. 472 THE LAW OK MASTKU AND SKllVANT. (3.) Special Exceptions relaxing General Law in certain Factories and IJ 'orksJiopa. (a.) Period of Employnunt. 42. Period of omploymcnt iK'twueu 8 a.m. and 8 ii.m. in cert-;un cases. 4;}. Power to Secretary of State to allow }>eriod of employment between 9 a.m. and 9 p.m. in certain cases. 44. Power of working male young persons above IG in lace factories. 4."). Power of working male young persons above 10 in bakehouses. 4(). Substitution by Secretary of State of another half holiday for Saturday. 47. Employment in Turkey red dyeing on Saturday \x\> to 4.30 p.m. 48. Continuous employment of children, young persons, and women in certain cases. 49. Giving half holidays and holidays on different days to different sets of children, young persons, and women. "lO. Employment of young persons and women by Jewish occupiers of factories or workshops. T)\. Employment of Jews by Jews on Sunday. (b.) Meal Hours. 52. Exception as to meal times being simultaneous, and as to cmi)loy- ment or remaining in room where manufacturing process is carried on during meal times, (c.) Overtime. ^3. Power to employ young persons and women for 14 hours a day. 54. Power to emploj- for half an hour after end of work where 2">rocess is in an incomplete state. 55. Employment of young persons, &c., in Turkey red dyeing and open-air bleaching. 56. Employment of women for 14 hours a day to j)reserve perishable articles. 57. Exception for factories ■) Sec. 81. (/) Sec s. 91 of rublic Health Act of 1875 (38 & 39 Vict. c. 55), and s. 101 of the ])r('sent Act ; Nurris v. Barnes (IS72), L. \l 7 Q. B. 537 ; 41 L. J. M. C. 154, and Rrg. v. JFatrr- hmse (1872), L. K. 7 Q. B. 545 ; 26 L. T. N. S. 761 ; 41 L. J. M. C. 115. {(/) Sec. 96. (h) Sec. 67. (i) Sec. 96. (^-) Not merely children, women, and young persons. Sec Coe v. I'/aU note (/) 752 ; Britfon v. Great Western Cotton Co. (1872), L. \\. 7 Kx. 130 ; 41 L. J. E.x. 99 ; 27 L. T. N. S. 125 ; 20 AV. R. 525. (/) The following are the cliiof cases as to fencing : Coe v. /'/aft (1851), 6 Ex. 752 ; (1852), 7 Ex. 460 ; 21 L. J. Ex. 146 ; 22 L. J. Ex. 164 ; 22 L. J. Ex. 164. (Tiic machinerj' ot'.i cotton mill was worked by a steani- (■ii;^iiie, which drove a liorizoiit.'d slialt ]i:issing alonj^ the lower lluor of the factory. This shaft worked several vertical shafts, which passed throuirh the u])per floors, and so worked tfie macliincry in tfie dilfcTciit rooms. One of the vertical shafts TIIK FACTOR V ACT. 479 (2.) EviM'v \vliccl-v;u'i! nut otlu-rwisc seriiivil (;/() sliall Le securely t't:ncc'd close to the cd^a' of the wlieel-racc ; and (3.) Every part of the mill ffearinj;- (n) sliall titlie'r Ije securely fenced or be in such position or of such construction as to be ecpially safe to every pei'son employed in the factory as it would be if it were securely fenced ; and (4.) All fencing shall be constantly maintained in an elticient state while the parts required to be fenced are in m(jti(in or use for tlie purpose of any manufacti;ring process (o). A factory in which there is a contravention of this section shall be deemed not to be kept in conformity with this Act (p). 6. Where an inspector (q) considers that in a fixctory any part of tlie machinery (?•) of any kind moved by steam, water, or other meclianical power, to which the foregoing pro"\dsions of this Act, with respect to the fencing of macliinery do not apply, is not securely fenced, and is so was under repair. Its fencing was removed, and the machines (h'iveu by it were at rest. Tlie machines in the other rooms were at work. The owner of the factory not liable for an accident to a girl bj^ the unfenced shaft. "The 21.st section only re- quii'es it to be so (fenced) when in motion for a manufacturing pro- cess.") Sclwfidrl y. Schirnk (1855), 24 L. T. 253. (Not eiion.',di that the machinery was fenced in the ordinary manner, used and approved as sutii- cient at the best regulated foctory in the district. ) JJud v. Shcppard (1856), 5 E. & B. 856 ; 25 L. J. Q. B. 124. (Held a bad plea that a shaft was not near to where children, young per- sons, or women, were likely to or liable to pass, and that the shaft M^as at such a distance or height that there was no danger.) Murdock v. Glasgmv and South- Western liy. Co. (1870), 8 Macp. 768. (Held 'to be sufficient that the fencing was ac- cording to the best method of fencing known at the time. ) (m) Britton v. Great Western Cotton Co., see note [k). (The edge of a wheel-race must be fenceti, though it was where it could be reached only by crossing a fence, and climbing through the spokes of a lly-wheel, and where children, or young persons were not liable to pass.) {n) For definition, see s. 96. {u) See Coe v. PlaU. \p) See ss. 81 and 82. The statu- tory penalty does not take away from the injured party the right of action. Castrdl v. Worth (1856), 5 E. & B. 849 ; 25 L. J. Q. B. 121 ; 2 Jur. N. S. 116 ; Coueh v. Steel (1854), 3 E. & B. 402 ; 23 L. T. Q. B. 402. "With respect to the defence of negligence on the part of a work- man, Caswell V. Wortli. (Action against defendant for not sufficiently fencing a shaft while in motion, in com]iliance with 7 i^t 8 Yict. c. 15, s. 21 ; plea, ailmitting that the shaft was not sufficiently fenced, but that plaintilf, contrary to the express commands of defendant, and know- ing that it was dangerous to meddle with the shaft, took hold of it ; a good plea.) MeCraeken v. Darqan, 1 Irish Jur. N. S. 404. (Action by operative against owner for not sufficiently fencing shaft ; plea that it was the duty of A., the operative, to put a certain belt upon one of the drums attached to the shaft ; that it was a known rule of the factory not to put a lielt on by hand, but by a crutch provided for the jiurpose ; and that the plaintilf, in violation of this rule and of commands, put the belt on by hand, whereby he was injured ; a good ])lea. ) Holmes v. Clarke, 6 H. & N. 349 ; Britton v. Great Western Cotton Co. ; and (/il/b v. Cromhic (1875), 2 K. 886, where it was alleged the plaintiff had made a misrepresentatiou as to his age. (q) See s. 67. 0') See sub-s. 6. 480 THE LAW OF JIARTER AND SERVAXT. dangerous as to be likely to cause limlily injury to uiiy person employed in the factory, the lbllowin<^' provisions shull upply to the fencing of such machinery : (1.) The inspector shall serve on the occupier of the factory a notice recpiiriuj,^ him to fence the part of the machinery -which the inspector so deems to he dan;^ferous : (2.) The occupier, within seven days after the receipt of the notice, may serve on the inspector a requisition to refer the matter to arbitration ; and thereupon the matter shall be referred to arbitration, and two skilled arbitrators shall be appointed, the one by the inspector and the other by the occupier , and the provisions of the Companies Clauses Consolidation Act, 1845, with respect to the settlement of disputes by arbitration shall, subject to the express provisions of this section, apply to the said arbitration, and the arbitrators or their lunpire •shall give the decision within twenty-one days after the last of the arbitrators, or, in the case of the umpire, after the umpire is appointed, or within such further time as the occupier and inspector, by writing, allow ; and if the decision is not so given the matter shall be referred to the arbitration of an imipire to be appointed by the judge of the county court within the jurisdiction of which the factory is situate : (3.) If the arbitrators or their umpire decide that it is unnecessary or impossible to fence the machinery alleged in the notice to be dangerous, the notice shall be cancelled, and the occupier shall not be required to fence in pursuance thereof, and the expenses of the arbitration shall be paid as the expenses of the inspectors under tliis Act : (4.) If the occupier does not, within the said seven days, serve on the inspector a requisition to refer the matter to arbitration or does not appoint an arbitrator within seven days after he served that requisition, or if neither the arljitrators nor the umpire decide that it is unnecessary or impossible to fence the machinery alleged in the notice to be dangerous, the occupier shall securely fence the said machinery in accord- ance with the notice, or with the award of the arbitrators or nni])ire if it modifies the notice, and the exj)enses of the ail)itration sliall be paid by the occujiier, and shall be recoverable from him by the inspector in the county court : (5.) Where the occujjier of a factory fails to comply within a reasonable time with the rcMpiirements of this section as to securely fencing the said machinery in accordance with the notice or award, or fails to keep the siiid machinery securely fciiccil in accordance therewith, or fails constantly to main- tain such fencing in an efficient state while the machinery THK FACTORY ACT. 4.S 1 iv(|uiivil to l>e leiReil is iu luutidii lor liic purpose of uny manufacturing process, the factory sliall In- dcciiiod not to hn kept in conformity with this Act : (6.) For the purpose of this section and of any jirovisioiis of this Act relating thereto, "machinery" sliall be deemed to im ludc any driving strap or band. 7. Where an inspector considers that in a factory or wcnkshop a vat, pan, or other structure, which is used in the process or handicraft carried on in such factory or workshop, and near to or over which children or young persons are liable to pass or to be employed, is so dangerous, by reason of its being filled with hot li(|uid or molten metal or otherwise, as to be likely to be a cause of bodily injury to any child or young person employed in the factory or workshop, he sliall serve on the occu])ier of the factor}' or workshop a notice requiring him to fence such vat, pan, or other structure. The provisions of this Act with respect to the fencing of machinery which an inspector considers not to be securely fenced and to be dangerous shall apply in like manner as if they were re-enacted in this section, with the substitution of the vat, pan, or other structure, for machinery, and with the addition of workshoii, and if the occupier of a factors' or workshop fails constantly to maintain the fencing required under this section in an efficient state, while such vat, pan, or other structure is so filled or otherwise dangerous as aforesaid, the factory or workshop shall be deemed not to be kept in conformity \\itb this Act. 8. Where an inspector observes in a factory that any grindst(Mie worked by steam, water, or other mechanical power is in itself so faulty, or is fixed in so faulty a manner as to be likely to cause bodily injury to the gi'inder using the same, he shall serve on the occupier of the factory a notice requiring him to replace such faulty grindstone, or to properly fix the grindstone fixed in the faulty manner. The provisions of this Act Avith respect to the fencing of machinery which an insjjector considers not to be securely fenced and to be dangerous shall apply in like manner as if they were re-enacted in this section with the necessary modifications. Where the occupier of a factory fails to keep the grindstone men- tioned in the notice or award in such a state and fixed in such manner as not to be dangerous, the factory shall be deemed not to be kept in conformity with this Act. 9. A child (.•?) shall not be allowed to clean any part of the machinery in a factory while the same is in motion by tlie aid of steam, water, or other mechanical power. A young person or wtmian (t) shall not be allowed to clean such ])art . (a) Sec. 96. {() See. 9G. I I 482 TIIK LAW OF MASTER AND SKKVANT. of the inacliiiR'i'v in a factory as is mill-i;earing («) while the same is in inotiou for the purpose of ]n-opellinj,' any part of the manufacturing niaehinery. A chihl, younn person, or woman sliall not lie allowed to work between tlie fixed and traversiiin i)art of any sell-actini,^ machine while tile machine is in motion liy the aetion of steam, water, or other mechanical power. A child, young person, or woman allowed to clean or to work in con- travention of this section shall he deemed to he enqjloyed contrary to the provisions of this Act (.v). (3.) Eiiijiloijmcnt and Meal Hours. 10. A child, young person, or woman shall not be employed in a factory or a workshop except during the period of employment herein- after mentioned (i/). 11. With respect to tlie employment of young persons and women in a textile ftictory {z) the following I'egulations shall be observed : (1.) The period of exployment, except on Saturday, shall either begin at six o'clock in the morning and end at six o'clock in the evening, or begin at seven o'clock in the morning and end at seven o'clock in the evening ; and (2.) The period of emjdoyment on Saturday shall liegin either at .six o'clock or at seven o'clock in the morning ; and (;5.) Where the period of employment on Saturday begins at si.x o'clock in the morning, that period — {a.) If not less than one hour is allowed for meals, shall end at one f)'clock in the afternoon as reg;irds em- ploynu-nt in any manufacturing process, and at half-past one o'clock in the afternoon as regards emjihiyment for any jmrpose whatever ; and (6.) If less than one liour is allowed for meals, shall end at half an hour after noon, as regards employment in any manufacturing process, and at one o'clock in the afternoon as regards employment for any i')ur- ])ose whatever ; and (4.) Where the period of employment on Saturday begins at seven (ii) S(ie s. 96. young persons in domestic work- (r) See. 81. sluips, s. 16 ; of eiii])l()yinciit oti (//) Kiiiiiloj'iiient of young persons Siitiinlay, s. 18; piohihition of cni- and wonicii in a textile factory, s. ])loyincnt of cliildrcn under ten, s. 11 ; of cliiltiren in a textile factory, -JO ; eniiiloymcnt on Sunday, s. 21 ; s. 12 ; of yoioig jicrsons and wonicn liolidays. s. 22; special exeniptionsas in a non-textili' factory, or of young to jicrioils of employment, ss. 42 — 51; Jicrsons in a workslioj), s. 1:5; of overtinu', ss. fi:] — fj? ; niglitwork, rliildrcn in a non-textile factory and ss. .")8— 60. As to meaning of " em- it woiksliop, .s. 14; of women in ployment," see note to scr. II.'!. workshops, s. I.''); of cliildiru or (:) Sec. 93, as to (Icfinilion. 'I'lIH FACTORY ACT. 483 o'clock in tlit- iiioruing, that piuiotl shall end at lialt'-past une o'clock in the afternoon as regards any manufacturing process and at two o'clock in the afternoon as regards employment for any purpose whatever ; and (5.) There shall lie allowed for meals (a) during the sailf)yment on alternate days only ; and (2.) The period of enqiloymentfor a chihl in a morning set on every day, including Saturday, shall begin at six or seven o'clock in the morning and end at one o'clock in the afternoon, or, if the dinner time begins before one o'clock, at tlie beginning of dinner time ; and (3.) The period of employment fur a cliild in an afternoon set on every day, including Saturday, shall begin at one o'clock in the afternoon, or at any hour later than half-past twelve {e) Sec. 93. {/,) Sec. 43. (/) See. 1)3. (/) Sees. 52 and 61. (g) Sec. 18. thp: factory act. 485 o'clock at which the dinner time tenuinutcs, and oml on Saturday at two o'clock in the altei-noon, and on any otlier day at six or seven o'clock in the evening, according as the period of employment for children in the morning set began at six or seven o'clock in the iiKjrning ; and (4.) A child shall not be employed in two siiccessi\e periods of seven days in a morning set, nor in two successive periods of seven days in an afternoon set, and a child shall not be em- ployed on Saturday in any week in the same set in which he has been eniployetl on any other day of the same week ; and (5.) When a child is employed on the alternate day system — (a.) The period of employment for such child shall, except on Saturday, either begin at six o'clock in the morn- ing and end at six o'clock in the evening, or T)egin at seven o'clock in the morning and end at seven o'clock in the evening ; and (h.) The period of employment for such child shall on Saturday begin at six or seven o'clock in the morn- ing, and end at two o'clock in the afternoon ; and (c.) There shall be allowed to such child for meals during the said period of employment not less, on any day except Saturday, than two hours, and on Saturday tlian half an hour ; but {fl.) The child shall not be empL)yed in any manner on two successive days, and shall not 1)6 employed on the same day of the week in two successive weeks ; and (6.) A chilli shall not on either system be employed continuously for more than five hours without an interval of at least half an hour lor a meal. 15. With respect to the employment of women in workshojis, the following regulations shall be observed : (1.) In a workshop which is conducted on the system of employ- ing therein childien and young person.s, or either of them, a woman shall not be employed except during tlie same period and subject to the same restrictions as if >;he were a young person ; and the regulations of this Act with respect to the employment of young persons in a workshop shall apply accordingly to the employment of women in that work- shop ; and (2.) In a workshop which is conducted on tlie system of not employing therein either children or young persons — (o.) The period of employment for a woman shall, except on Saturday, begin at six o'clock in the morning and end at nine o'clock in the evening, and shall on Saturday begin at six o'clock in the morning, and end at four o'clock in the afternoon ; and 480 THE LAW 01-' MASTER A'SD SEUVANT. (b.) Thei-e .shall be allowed to a woman for meals ami absence from work during the period of employ- ment not less, except on Saturday, than four hours and a lialf, and on Saturday than two hours and a half. A workshoj) shall not be deemed to be conducted on the system of not < luploying therein either children tir young persons until the occupier lias served on an in.spector notice of his intention to conduct his work- slioj) on that system. 16. Where person.s are enqdoyed at home (A;), that is to say, in a private house, room, or place which, though used as a dwelling, is by H'ason of the work carried on there a factory or workshop witliin the meaning of tliis Act, and in which neither steam, water, nor other mechanical jwwer is used in aid of the manufacturing pr5. (o) Sec. 96. THE FACTORY ACT. 4H() be cau.-^ed to attcinl on each wmk day fnr at least ont- attend- ance ; and (2.) Tlie child, ■Nvlii'ii cniiiliiyed (jh the alternate day system, shall on each work day jjreceding each day of eniployniont in the factory or Avorksho]) be caused to attend for at least two attendances : (3.) An attendance for the purposes of this section shall be an attendance as defined for the time being by a Secretary of State with tlie consent of the Education Dei)artment, and be. between the hours of eight in the morning and six in the evening : {q) Provided that — {(I.) A child shall not be required by this Act to attend school on Saturday or on any holiday or half holiday alhnved under this Act iu the factory or workshop in which the child is employed ; and (h.) Tlie non-attendance of the diild sliall be excused on every day on which he is certified by the teacher of the school to have- been prcA'ented from attending by sickness or other un- avoidable cause, also when the school is closed during the ordinary holidays or for any other temporary cause ; and (c.) Where there is not within the distance of two miles, measured according to the nearest road, from the residence of the chikl a recognised efiicient school which the child can attend, attendance at a school temporarily approved in writing by an inspector under this Act, although not a recognised efiicient school, shall for the purposes of this Act be deemed attend- ance at a recognised efficient school until such recognised efficient school as aforesaid is established, and wdth a view to such establishment the inspector shall immediately report to the Education Deixutmeirt every case of the apjiroval of a school by him under this section. A child who has not in any week attended school for all the attend- ances required by this section shall not l)e employed in the following week nntil he has attended school for the deficient number of attendances. The Education Department sliall fmm time to time, by tlie publica- tion of lists or by notices or otherwise as they think expedient, provide for giving to all persons interested information of the schools in each school district which are recognised efficient schools. 24. Tlie occupier of a factory or Avorkshop in which a child is employed shall on Monday in every Aveek (after the first Aveek iu Avliicli such child bi'gau to Avork therein), or on some other day api)ointed for {q) "The attendance of a child at a of instruction in secular sulyects." — morning or afternoon meeting of a Order of Home Secretary, Dec. 24, school durin" not less than two hours 1878. 4i)0 THE LAW OF HIASTKH AND SKKVANT. tliat pui]>oso liy an insjicctor, (ilitaiii from tlie teacher of tlie rd,cogiri*'d oHiciont school atti-iuU-d by the cliihl, a. certificate (accordiiij^ to tlie in-escribed form and directions) respecting the attendance of sucli cliihl at school in accordance with this Act. Tlie employment of a child without obtaining such certiticate as is iVM^uired by this section shall be deemed to be employment of a child contrary to the provisions of this Act(j-). The occu])ier shall keep every such certificate for two months after the date thereof, if the child so long continues to l)e employed in his factory or his workshoj), and shall produce the same to an insi)ector when re([nired during that period. 25. The board autln)rity or persons wJio manage a recognised etticieiit .school attended by a child emjiloyed in a factory or workshop, or some person authorised by such board, authority or person, may apply in ^VTiting to the occupier of the factory or workshop to pay a weekly sum specified in the application, not exceeding threepen^.e and not exceeding one-twelfth jiart of the Avages of the child, and after that application the occu])ier, so long as he employs the child, shall be liable to pay to the ai)plicants^ while the child attends their school, the said weekly sum, and the sum may be recovered as a debt, and the occupier may deduct the sum so ]iai,'reat extent jnevented \>y tin; use of a fan or other mechanical means, the inspector may direct a fan or other niedianical means of a ]>r()])er construction for prt^ventin^' such inlialation to he provided witliin a reasonable time ; and if the same is not provided, maintained, and used, the factory or ^\'orksllop sliall Ik*. deenu'd not to be kept in confonnity witli tliis Act. .'57. A chihl, yonng person, or woman shall not l).- em]iloyed in any part of a factory in which wet-spinning is carried on, unless sutHcient means be emjiloyed and continued for protecting the workers from being wetted, and, where hot water is used, for ]n'eventing the escape of steam into the room occupied by the workei's. A lactory in which there is a conti'aventiou of this section sliall be deemed not to be kept in conformity with this Act. (2.) SjKcial liegtrictions /(■■i to Enqjloijmenf, Meals, and Certificates of Fitness. 38. A cliild or young person shall not, to the extent mentioned in the First Schedule to this Act, be employed in the fixctories or workshops or parts thereof named in that schedule. Notice of the jirohiljition in this section shall be affixed in a factory or workshop to which it ai)plies(jy). 39. A child, young ])erson, or woman shall not be allowed to take a meal or to remain during the times allowed for meals (/() in the parts of factories or workshops to which this section applies ; and a child, young j)erson, or woman allowed to take a meal or to remain in contravention of this section shall be d(v an order iiiiuU' uiKlt-r tliis part of this Act, rescind the (irdor of extension, without jncjiulicc nevertheless to the subsequent niakin;:; of another onh-r. 40. In print works and bh-aihin;4 and dyeiuj,' wt)rks()') the period of <'mploynient for a child, youn.u person, and woman, and the times allowed for meals, shall hi- the same as if the said works were a textile factory, and the regulations of this Act with respect to the eraph)yment ol' children, young persons, and women in a textile factory shall apply accordingly,'as if iirint woi'ks and bleaching and dyeing works were textile factories ; save that nothing in this section shall prevent the con- tinuous em])loyment of a child, young person, or woman in the said works without an interval of half an hour for a meal, for the period allowed by this Act in a non-textile factory. 41. Where it api>ears to a Secretary of State that by reason of special circumstances affecting any class of workshops it is expedient for protect- ing the health of the children and of the young persons under the age of sixteen yeai'S employed therein, to extend thereto the prohibition in this section mentioned, he may, by order made under this part of this Act, extend to such class of workshops the prohibition in this Act of the employment of children and young persons under the age of sixteen years without a certificate of the fitness {k) of such child or young person for employment, and thereupon the provisions of this Act with respect to certificates of fitness for employment shall apply to the class of woi-kshops named in the oidei' in like manner as if they were lactones. If the prohibition is proveil to the satisfaction of the Secretary of State to be no longer necessary for^ the protection of the health of the children and the young persons under the age of .sixteen years employed in any class of workshops to which it has been extended under this .section, he may by order made under this part of this Act rescind the order of extension, without prejudice nevertheless to the subsequent making of another order. (3.) Special Exceptions relaxing General Law in certain Factories and Workshops (l). (a) Period of Employment. 42. In the factories and worksho]is or parts thereof to which this ex- ception applies the ])eriod of employment for young persons and women, if .so fixed by the occupier and specified in the notice, may, except on Saturday, begin at eight o'clock in the morning and end at eight o'clock in the evening, and on Saturday may begin at eight o'clock in thw (i) As to period of emiiloymciit, (A-) Sees. 27 to 30. .sections 11 and 12: as to jjrint, (/) Trovision as to occupier avail- l.lcacliiug, and ilyeing works, sec. y;3 ing himself of special exceptions, and 4th Sdiedulr, Part I. s. CG. THE FACTORY ACT. 497 iiidi'iiint; and end at luur o'clock in the at'ttTiioiDi, ni- wlicrc it hef,'iiis at srvi'ii o'clock in tlie iiioiniiig may end at three o'clock in the al'ternooii ; and the jieiiod of employment for a child in a mornin;^' set may begin at the same hour, tand the period of employment for a child in an after- noon set may end at the same lioi;r. This exception apj^lies to the factories and Avorkshops and parts thereof specified in Part One of the Third Schedule to this Act. Where it is proved to the satisfaction of a Secretary of State that the customs or exigencies of the trade carried on in any class of non-textile factories or workshops or parts thereof, either generally or when situate in any i)articular locality, require the extension thereto of this excep- tion, and that the extension can be made without injury to the health of the children, young persons, and women affected thereby, die may by order made iinder this part of this Act extend this exception accordingly (in). 43. Where it is proved to the satisfaction of a Secretary of State that the customs or exigencies of the trade carried on in any class of non- textile factories or workshops or parts thereof, either generally or when situate in any particular locality, require that the special exception hereafter in this section mentioned should be granted, and that such grant c;m be made without injury to the health of the children, young persons, and women affected thereby, he may by order made under this part of this Act grant to such class of factories or workshops or parts thereof a special exception, that the period of employment for young persons and women therein, if so fixed by the occupier and specified in the notice, may on any day except Saturday begin at nine o'clock in the morning and end at nine o'clock in the evening, and in such case the period of employment for a child in a morning set shall begin at nine o'clock in the morning, and the period of employment for a child in an afternoon set shall end at eight o'clock in the evening (?;). 44. The regulations of this Act with respect to the employment of young persons in textile factories shall not prevent the employment, in the i)art of a textile factory in which a machine for the manufacture of lace is moved by steam, water, or other mechanical power, of any male young person above the age of sixteen years between four o'clock in the morning and ten o'clock in the evening, if he is employed in accordance •with the following conditions ; namely, (a.) Where such young person is employed on any day before the be- ginning or after the end of the ordinary period of emphjyment in the f;ictory, there shall be allowed him for meals and absence from work between the above-mentioned hours of four in the morning and ten in the evening not less than nine hours ; and (w) Order of Home Seiaetary, June (?i) Order of Home Secretary, Dec. 3, 1881 ; Order of April 11, ISSl. 21, 1881 ; Order of July 12, 1880. K K 41)8 THK LAW OF MASTER AND SKKVANT. {().) AVlierc such youiiij; 2)Ci'.-!on is employed on ;my day before the beginning of tlie ordinary peiiod of eni]doynient in tlie factory, he shall not be employed on the same day after the end of that period ; and (c.) Where such young person is employed on any day after the end of the ordinary period of employment in tlie factory, he shall not be employed next morning befoie the beginning of the ordinary period of employment. For the purpose of this exception the ordinary juniod of employment in the factory means the period of employment for young persons under tlie age of sixteen years or women in the factory, or if none are employed means such period as can under this Act be fixed for the emidoyment of such young persons and women in the factory, and notice of such period sliall be affixed in the factoiy. 45. Tlie regulations of this Act with respect to the i-mployment of young persons in non-textile factories or Avorkshops (o) shall not jnv- A ent the employment, in the part of a bakehouse in which the ju-ocess I if baking Ijread is carried on, of any male young person above the age (if sixteen years between five o'clock in the morning and nine o'clock in tlie evening, if he is employed in accordance with the following con- ditions ; namely, (a.) Where such young person is employed on any day before the beginning or after the end of the ordinary period of em- ployment in the bakehouse, there shall be allowed him for meals and absence from work between the above-mentioned hours of five in the morning and nine in the evening not less than seven hours ; and (h.) Where such young person is empluyi'd on any day before the beginning of the ordinary period of employment in tlu' bakehouse, he shall not be employed after the end of that period on the same day ; and (c.) Where such young person is employed on any day after the end of the ordinary period of employment in the bakehouse, he shall not be employed next morning liefore the beginning of the ordinary ]ieriod of em})loyment. For the pur])ose of this exception the ordinary period of employment in tlu; l)akeliouse means the ]ieri(jd of employment for young ])ersons under the age of sixteen years or women in the bakehouse, av if none are employed, means .such period as can under this Act be lixed Ibr the em- ployment of such young persons and women in the bakehouse, and notice of such period shall be attixed in the bakehouse. Where it is proved to the satisfaction of a Secretary of State that the exigencies of the trade carried on in liakehouses, either generally or (o) Sff. 13 ; al.so Cameron v. Foi/ k 31 Vict. c. 146, as to substituting a (1674), 30 L. T. N. S. 517, under 30 AVednesday half holiday lor Saturday. TIIH FACTORY A("J'. 499 when situate in any particular hjcality, r(,'i|uiri' fliat tlie special exception lieveafter in tliis section mentioned should l»e j^ranted, and that such grant can be made without injury to the healtli of the male younj,' persons affected thereby, he may by order made under this jiart of this Act grant to bakehouses, or to bakehouses situate in the said locality, a special exception permitting the employment of male young ])ersons of six- teen years of age and upwards as if they were no longer young persons {})). 46. Whore it is jn'oved to the satisfaction of a Secretary of State that the customs or exigencies of the trade carried on in any class of non- textile factories or workshops, either generally or when situate in any jiarticular locality, reipiire some other day in the week to be substituted for Saturday as regards the hour at which the period of emjiloyment for children, young persons, and women is required by this Act to end on Saturday (q), he may by order (r) made under this part of this Act grant to sirch class of fiictoiics or workshops a special exception, authorising the occupier of every such iai:tory and workshop tosub^titnte by a notice atHxed in his factory or Avorkshoj) some other day for Saturdaj-, and in such case this Act shall apjdy in such factory or workshop in like manner as if the substituted day were Satunlay, and Saturday were an ordinary Avork day. 47. In the process of Turkey red dyeing, uothhig in Part One of this Act shall jirevent the employment of young persons and women on Satui'day until half-past four o'clock in the afternoon, but the additional number of hours so worked shall be computed as part of the week's limit of work, which shall in no case be exceeded. 48. In any of the textile factories to which this exception applies, if the ]iei'iod of employment foy J'oung ])ersons and Avomen, as fixed by the occupier and specified in the notice, begins at the hour of seven in the morning, and the whole time between that hour and eight o'clock is allowed for meals, the regulations of this Act with respect to the em- ployment of children, young persons, and women shall not prevent a child, yoimg person, or woman, between the first day of November and the last day of ]\Iarcli next following, being employed continuously, without an interval of at least half-an-hour for a meal, for the same period as if the factory were a non-textile factory (s). This exception applies to the textile factories specified in Part Seven of the Third Schedule to this Act. Where it is proved to the satisfaction of a Secretary of State that in any class of textile factories, either generally or when situate in any particular locality, the customary habits of the persons employed therein require the extension thereto of this exception, and that the manu- facturing process carried on therein is of a healthy character, and the (i?) Order of Home Secretary, 10th Dec, 1878; Order of August IS, Dec, 1878. 1880. (7) Sees. 12, 13, 14, and 16. (a) Sec. 13. (r) Home Secretary's Order, lOtli .')00 THE LAW OF MASTEll AND SKUVANT. cxteiisum can be made witluuit injury tn tlir liraltli nf the childivn, young persons, and women affected thereby, he may by order made under this part of this Act extend this exception accordingly (0- 49. "Where it is proved to the satisfaction of a Secretary of State that the customs or exigencies of tlie trade carried on in any class of uon- tt'xtik' factories or workshops, eitlier generally or Avhen situate in any particular locality, reiiuiie that the special excejjtion hereafter in this section mentioned should be granted, he may by order (») made under this part of this Act grant to such class of factories or workshops a special exception, autliorising the occupier of any such factory or work- siiop to allow all or any of the half holidays, or whole holidays in lieu of them, on different days to any of the children, young persons, and women employed in his factory or workshop, or to any sets of such children, young persons, and women, and not on the same days. 50. Where the occupier of a factory or workshop is a person of tlie. .Jewish r(digion, the regulations of this Act with resi)ect to the emjiloy- ment f)f young persons and women shall not prevent him — (1.) If he keeps his factory or workshop closed on Saturday until sunset, from employing young persons and women on Saturday from after sunset until nine o'clock in the evening ; or (2.) If he keeps his factory or workshop closed on Saturday both before and after sunset, from employing young persons and women one hour on every other day in the week (not being Sunday), in addition to the hours allowed by this Act, so that such hour be at the begiiming or end of the period of employment, and be not ])efore six o'clock in the morning or after nine o'clock in the evening ; or (3.) If all the children, young persons, and wiunen in his factorj' or workshop are of the Jewish religion, from giving them, if so specified in a notice affixed in the fixctory or workshop as by this Act ]irovided (.r), any two public holidays under the Holidays Extension Act, 1875, in lieu of Christmas Day and Good Friday, but in that casi' such factory or wt)i'ksliop shall iu)t be o^jcn for tratlic on Christmas Day or C.ood Friday. 51. No ])enalty shall be incurred by any person in respect of any work done on Sunday in a factory or Avorkshoi) by a young person or woman of the Jewish religion, subject to the following conditions : (1.) The occupier of the factory oi' workshop shall be of the Jewish 7eligi(m ; and (2.) Tlie factory or workshop shall be closed on Saturday and shall not l»e ojien for traffic on Sunday ; and (/) Onlor of Home Sccrctiirv, lotli {n } (Inlcr of Home . Secretary, 10th Dec, 1878. ■ Dec, 1878. (.J') Sec 19. TIIK FACTOIiY ACT. 501 (3.) TliL- occuiiicr sluill not aviiil hinisuH' of tlic I'xeeiitioii autlio- risiiig tlie employiuent of young persons arul women on Satur<]ay evening, or for an additional hour during any other day of the week. Where tlie occupier avails himself of tliis exception, tliis Act shall apply to the factory or Avorkshop in like manner as if in the provisions thereof respecting Sunday the word Saturday were suhstituted for Sunday, and in the ])rovisions thereof respecting Saturday the word Sunday, or, if the occupier so specify in the notice t]ie wonl Fri(hiy, were suhstituted for Saturday. (h.) Meal Hours. 52. The provisions (//) of this Act which re([uire tliat all the cliildren, young persons, and women employed in a factory or worksliop sliall have the times allowed for meals at the same hour of the day shall not apply in the cases mentioned in Pait Two of the Tliird Schedule to this Act. The provisions of this Act which re(|uire that a child, young person, and woman shall not, during any part of the times allowed for meals in a factoiy or workshop, he em])loyed in the factory or the worksliop, or l)e allowed to remain in a room in which a manufacturing process or handicraft is being carried on, shall not apply in the cases and to the extent mentioned in Part Two of the Third Schedule to this Act. Where it is proved to the satisfaction of a Secretary of State that in any class of factories or workshops or parts thereof it is necessary, by reason of the continuous nature of the process, or of S])ecial circum- stances affecting such class, to extend thereto the exceptions in this section or either of them, and that such extension can be nuide without injury to the health of the children, young persons, and women affected thereby, he may by order (.^) made imder this ])art of this Act extend the same accordingly. (c.) Overtime. 53. The regulations <)[ this Act with resjiect to the employment of young persons and W(jmen shall not prevent the employment in the factories and workshops or parts thereof to which this exception applies of young persons and of women during a period of employ- ment beginning at sLx o'clock in the morning and ending at eight o'clock in the evening, or beginning at seven o'clock in the morning and ending at nine o'clock in the evening, or beginning at eight o'clock in the morning and ending at ten o'clock in the evening, if they are employed in accordance with the following conditions ; namely, iU) Sec. 17. {z) Orders of Home Secretary, 10th Dec, 1878. 502 TIIK LAW OF MASTER AND SERVANT. (1.) There shall he allowed to eA'erv such youiii;- ]ieisoii and uoiuaii for meals during the'period o[' ciuijlovnu'iit not less than two lioiirs, of whicli halt' an hour shall In- alter live o'clock in the evening;- ; and {■2.) Any such youni; person or woman sliall not be so employed oil the whole for more than five days in any one week, nor for more than forty-eight days in any twelve months. This exception applies to the factories and workshojis and ]iarts thereof specified in Part Three of the Third Schedule to this Act. "Where it is proved to the satisfaction of a Secretary of State that in any class of non-textile factories or worksliops or parts thereof it is necessary, by reason of the material which is the subject of the manu- facturing process or handicraft therein being liable to be spoiled by the weathei', or by reason of press of work arising at certain recurring seasons of the year, or by reason of the liability of the business to a sudden press of orders arising from unforeseen events, to employ young ])ersons and women in manner authorised by this exception, and that such em2)loynient will not injure the health of the young persons and Avomen aifected thereby, he may liv order (o) made under this part of this Act extend this exception to such factories or workshops or ])arts tliereof. 54. If in any factory or woikshop or part thereof to wdiich this excep- tion ai)plies, the process in which a child, young person, or woman is employed is in an incomplete state at the end of the period of employ- ment of such child, young person, or woman, the provisions of this Act with respect to the period of employment shall not prevent such child, young person, or woman from Ijeing employed lor a further period not exceeding thirty minutes : Provided that such further periods when added to the total number of hours of the periods of em])loyment of such child, young person, or woman in that week, do not raise tliat total aliove the number otherwise allowed under this Act. This exception a])i)lies to tlie factories and workshops specitied in Part Four of the Third Schedule to this Act. "Wliere it is proved to the satisfaction of a Secretary of State that in any class of non-textile factories or workshops or parts thereof the time for the con)pletion of a process cannot by reason of the nature thereof be accurately fixed, and that the extension to such class of factories or workshops or parts thereof of this exception can be made without injury to the health of the children, joung persons, and women afl'ected thereby, he may by order made under this ])art of this Act extend this exception accordingly (fi). (a) Order of Home Secretary, 10th October 6, 1881 ; Order of June 3, Dec., 18 8();Orders of August 18, ' 1881 ; Order of Jan. 5, 1881. 1878; Order of March 11, 1880; (/y) Order of August 18, 1880. Order of May 14, 1879 ; Onier of TIIH FACTOUV" ACT. ')i)'.\ 55. NotIiiii;j; in tliis Act sliall picvml tin: (■iiij)li)yiiii'iit ot" youii;^' jtersous ami women so far a.s is necessary for the purpcjse only of ])rf- ventiTi^- any damage which may arise from spontaneous comhustion in the process of Turkey red dyeing, oi- from any extraordinary atmospheric influence in the process of oj)en-air Vdeacliing. 56. The regulations of this Act witli respect to the employment of young persons and Avomen shall not prevent the employment, in the factories and workshops and parts thereof to which this exception applies, of women during a period of employment beginning at six o'clock in the mnining and ending at eiglit o'clock in the evening, or beginning at seven o'clock in the morning and ending at nine o'clock in the evening, if they are em2)loyed in accordance with tlie following ctjii- (litions ; namely, (1.) There shall be allowed to every such woman for meals during the pei'iod of employment not less than two hours, of whicli half an hour shall be after five o'clock in the evening ; and (2.) Any such woman shall not be so employed on the whole for more than five days in any one week, nor for more than ninety-six days in any twelve months. This exception applies to the factories and w(jrkshops and parts thereof specified in Part Five of the Third Schedule to this Act. Where it is proved to the satisfaction of a Secretary of State that in any class of non-textile factories or workshops or parts thereof it is necessary, by reason of the perishable natui-e of the articles or materials which are the subject of the manufacturing process or handicraft, to employ women in manner authorised by this exception, and that such employment will not injure the health of the women employed, he may by order made under this part of this Act extend this exception to such factories or workshops or parts thereof. 57. Where it appears to a Secretary of State that factories driven by water power are liable to be stopped by drought or flood, he may, by order (c) made under this part of this Act, grant to such factories a special exception permitting the employment of young persons and women during a period of employment from six o'clock in the morning until seven o'clock in the afternoon, on such conditions as he may think proper, but so as that no person shall be deprived cf the meal hours by this Act provided, nor be so employed on Saturday, and. that as regards factories liable to be stopped by drought, such special exception shall not extend to more than ninety-six days in any period of twelve months, and as regards factories liable to be stopped by floods, such special exception shall not extend to more than forty-eight days in any period of twelve months. This overtime shall not extend in any case beyond the time already lost during the previous twelve months. (c) Order of 10th Dec, 1878. 504 THK LAW OF MASTER AND SKIIVANT. (d.) Xi^pi:cial Exception for Jhmestic ami cerffiin other Factories and JForkulioptt. 61. Tin- ])r()visions of this Act which relate — (1.) To the cleanliness (including liniewashing, painting, varnish- ing, and washing) or to the freedom from effluvia, or to the overcrowding, or ventilation of a factory or workshop (/) ; or (2.) To all children, young persons, and women employed in a factory or workshop having the tunes allowed for meals at the same hour of the day, or during any part of the times allowed for meals in a factory or workshop being employed in the factory or workshop or being allowed to remain in any room (g) ; or (3.) To the affixing of any notice or abstract in a foctory or work- shop ; or specifying any matter in the notice stj affixed (/i) ; or (4.) To the allowance of any holidays to a child, young person, or womair (i) ; or (5.) To the sending notice of accidents (/.) ; shall not apply — (a.) Where persons are employed at home (H), that is to say, to a private house, I'oom, or place which, though used as a dwell- ing, is by reason of the work carried on there a factory or workshop within the meaning of this Act, and in which neither steam, water, nor other mechanical power is used, and in which the only persons employed are members of the same family dwelling there ; or (6.) To a worksln)p which is conducted on the system of not em- (/) Sec. 3 ; ss. 33—37. (/) Sec. 22. ig) Sec. 17. (k) Sees. 31, 32. Kh) Sees. 19, 22, siib-ss. 1, 38, 39. (kk) Sec. 16. 506 TIIK LAW OF MASTER AND SERVAlxT. ploying cliildiiii or young p^-rsons therein, and the occupier of wliich has .served on an inspector notice of liis intention to conduct his workshop on tliat system. And the provisions of tliisAct witli respect to certificates of fitness tor employment (/) sliall apply to any such private liouse, room, or pkice as aforesaid, -which by reason of the nature of the work carried on there is a factory, as if the same were a worksliop within the meaning of this Act, and not a factory. Where the occui)ier of a workshop has served on an inspector notice of his intention to conduct that workshop on the system of not enqdoy- ing children or young persons therein, the workshop shall be deemed for all the purposes of this Act to be conducted on the said system until the occupier changes it, and no change sliall be made until the occupier has served on the inspector notice of his intention to change tlie system, and until the change a child or young person employed in the workshop shall l)e deemed to be employed contrary to the pro- visions of this Act. A change in the said system shall not be made (^ftener than once a quarter, unless for special cause allowed in writing by an inspector. Nothing in this section shall exempt a bakehouse from the provisions of this Act with respect to cleanliness (including lime washing, painting, varnishing, and washing,) or to freedom from efHuvia. (32. The regulations of this Act with respect to tlie employment of women (m) shall not apply to liax scutch mills which are conducted on the system of not employing either children or young persons therein, and which are worked intermittently, and for periods only which do not exceed in the whole six months in any year. A flax scutch mill shall not be deemed to be conducted on the system of not employing therein either children or young jiersons until the occu])ier has served on an in* specter notice of his intention to conduct such mill on that system. (.").) tiiqi'plcmciital as to Hpecial Provisions. ('),]. Where it appears to a Secretary of State that the adoption of any special means or provision lor the cleanliness or ventilation of a factory 01- workshop is recpiired for ihe protection of the health of any child, young person, or woman employed, in jjursuance of an exception under this part of this Act, either for a longer period than is otherwise allowed by this Act, or at night, he may by order made under this part of this Act direct that the adoption of such means or ])rovision shall be a con- dition of such em])loyment ; and if it appears to a Secretary of State that the adoption of any such means or provision is no longer required, or is, having regard to all the circumstances, inexpedient, he may, by (Z) Sees. 27— :3(). (>,i) Sees. 10, 11, 1:3, 15, 17, IS 21, 22, 42—49. THE FACTORY A(;T. .■)()7 order made under tliis pint of tliis Act, rescind the order directing .such adoption Avitliout prejudice to the subsequent making of another order. (34. Where an exception has been granted or e.\tended under this part of this Act by an order of a Secretary of State, and it appears to a Secretary of State that such exception is injurious to the health of the chihlren, young person.s, or women emph)yed in, or is no h)nger neces- sary for the carrying on of the business in, tlie class of factories or work- shops or parts thereof to which the said excci)ti(iu Avas so granted oi' extended, he may by an order made under this part of this Act rescind the grant or extensinn, without prejuilice U> the subse(jueut making of another oi'der. 65. Where a Secretary of State has power to make an order under this part of this Act, the folUnving provisions shall a[)ply to that order : (1.) Tile order shall be under the hand of the Secretary of State and shall be published in the London Gazette, and shall come into operation at the date of such publication in the London Gazette, or at any later date mentioned in the (jrder : (2.) The order may be temporary or ijermanent, conditional or un- conditional, and whether extending a prohibition or excep- tion, granting an exception, directing the adoption of any means or provisions, or rescinding a previous order, or efl'ecting any other thing, may do so either wholly or partly : (3.) The ortler shall be laid as soon as may be before both Houses of Parliament, and if either House of Parliament, within tlu; next forty days after the same has been so laid before such House, resolve that such order ought to be annulled, the same shall after the date of such resolution lie of no etiect, without prejudice to the validity of anything done in the meantime under such order or to the making of any new order : (4.) The order, while it is in force, shall, so far as is consistent with the tenor thereof, apply as if it formed part of the enactment wluch provides for the extension or grant or otherwise for making the order. 66. An occupier of a factory or workshop, not less than seven days before he avails himself of any special exception under this part of this Act, shall serve on an inspector, and (except in the case of a factory or workshop to which the jirovisions of tliis Act with respect to the affixing of notices do not apply (n) ) affix in his factory or workshop notice of his intention so to avail himsell", and whilst he avails himself of the excep- tion shall keep the notice so affixed. Before the service of such notice on the inspector the special exception shall not be deemed to apply to the factory or workshop, and after the service of such notice on the inspector it shall not be competent in any proceeding under this Act for the occupier to prove that such special («) Sec. 61. 508 THE LAW OF MASTER AND SEllVANT. exception does jiot ajiply to liis factory or workslioj), iinleris he lias previously served on an irispector notice that he no hunger intends to avail himself of siTcli special exception. The notice so served and affixed sliall specify the hours for the lieginning and end of the period of eni])loynient, and the times to lie allowed for meals to every child, young person, and -woman where they dilfer from the ordinary hours or times. An occupier of a factory or workshoi) shall enter in the prescribed register, and report to an inspector, the prescribed particulars respecting the employment of a child, young person, or woman in pursuance of an exception, but such entry and report need not be made in the case of a factory or workshop to which the provisions of this Act with respect to the athxing of notices do not apply, exce})t so far as may l)e from time to time prescribed by a Secretary of State. Where the occupier of a factory or workshop avails himself of an exception under this part of this Act, and a condition for availing lumself of such exception (whether specified in this part of this Act, or in an order of a Secretary of State made under this part of tliis Act) is not observed in that factory or workshop, then (1.) If such condition relates to the cleanliness, ventilation, or overcrowding of the factory or workshop, the factory or Avorkshop shall be deemed not to l)e kept in conformity with this Act ; and (2.) In any other case a child, young person, or woman employt-il in the factory or workshop, in alleged pursuance of the said exce^jtion, shall be deemed to l)e em])loyed contrary to the ])rovisions of this Act. PART III. Administratiox, Penalties, and Leual Proceedings. (1.) Inspection. 67. A Secretary of State from time to time, with the approval of the Treasury as to numbers and salaries, may appoint such inspectors (under whatever title he may from time to time fix (o) ) and such clerks and servants as he may think necessary for the execution of this Act, and may assign to them their duties and award tlu-m their salaries, and may constitute a princijjal inspector with an office in London, and may regulate the cases and manner in which the inspect(jrs, or any of them, are to execute and ])eiforni the powers and duties of inspectors under this Act, and may remove such inspectors, clerks, and servants. The salaries of the inspectors, clerks, and servants, ami the expenses (o) Order of Home Secretary, 24th specters imdcr former Acts, Fraser's Dec, 1878. As to powers of in- M;ister and Servant, p. 626. TIIM FACTollY ACT. •')09 iiiciirrf(l liy tliciu or liy ;i Secretary ot" State in thr cxecutinu of this Act, shall Ijc \)Md nut of luoueys ])rovi(le(l by Parliiinieut. Notice of the appointment of every such inspector shall l)e i)ul)lislied in the London Gazette. A person who is tlie occupier of a factory or workshop, cjr is directly or indirectly interested therein or in any ])rocess or business carried on therein, or in a patent connected therewith, or is employed in or about a factory or workshop, shall not act as an inspector under this Act. An inspector under this Act shall not be lialile to serve in any parochial or municipal office. Such annual report of the proceediu.^s of the inspectors as tlie Secretary of State from tinu' to time directs sliall be laid before both Houses of Parliament. A reference in this Act to an inspector n-fers, unless it is otherwise expressed, to an inspector apjiointed in pursuance of this section, and a notice or other document rec^uired by this Act to be sent to an inspector shall Ix' sent to such inspector as a Secretary of State from time to time directs, by declaration published in the London Gazette or otlier- wise as he thinks expedient for makinL^ the same known to all persons interested. 68. An inspector under this Act shall for the purpose of the execution of this Act have power to do all or any of the following thin,ns ; namely, (1.) To enter, inspect, and examine at all reasonable times by day and night a factory and a workshop and every part thereof when he has reasonable cause to believe that any person is employed therein, and to enter by day any place which he has reasonable cause to believe to be a factory or work- shop ; and (2.) To take with him in either case a constable into a factory in which he has reasonable cause to apprehend any serious ob- sti'uction in the execution of his duty ; and (3.) To require the production of the registers, certificates, notices, and documents kept in pursuance of this Act, and to inspect, examine, and copy the same ; and (4.) To make such examination and inquiry as may be necessary tf) ascertain whether the enactments for the time behig in force relating to public health and the enactments of this Act are complied with, so far as respects the factory or work.shop and the persons employed therein ; and (5.) To enter any school in which he has reasonable cause to believe that children employed in a factory or workshop are for the time being etlucated ; and (6.) To examine either alone or in the presence of anyotlier pei'son, as he thinks fit, with respect to matters under this Act, every ]ierson whom he finds in a factory or worksliop, or sucdi a school us aforesaid, or whom he has reasonable cause to 510 TIIK LAW OF MASTER AND SEJIVANT. Lelieve to be or to have hi-en within tlu' ^HTcedin^ two moTiths cmphiyod in a factory or workshop, and U> require such ])erson to he so examined and to si^ii ach'claration of the truth of tlie matters respecting which lie is so examined ; and (7.) To exercise sucli other powers as maybe necessary fcu' carrying this Act into effect. The occupier of every factory and workshop, liis agents and servants, ?;hall furnish the means required by an inspector as necessary for an •entry, inspection, examination, in(|uiry, or the exercise of liis powers amckn- this Act in relation to such factory and workshoj). Every ]iei'.son who wilfully delays an inspector in the exercise of anj' flower under this section, or who fails to comply with a requisition of an inspector in pursuance of this section, or to produce any certificate or ilocunient which he is required by or in pursuance of this Act to pro- duce, or who conceals or prevents a child, young person, or woman from appearing before or being examined by an inspector, or attempts so to conceal or prevent a child, young person, or woman, shall be deemed to obstruct an inspector in the execution of his duties under this Act : Provided always, that no one shall be required under this section to answer any ({uestion or to give anj' evidence tending to criminate himself. Where an inspectoi' is obstructed in the execution of his duties under this Act, the person obstructing him shall lie liable to a fine not exceed- ing five pounds ; and where an inspector is so obstructed in a factory or workshop, the occupier of that factory or workshop shall be liable to a fine not exceeding five, or Avhere the offence is committed at night, twenty pounds ; and where an inspector is so obstructed in a factory or workshop within the meaning of section sixteen of this Act, the occupier shall be liable to a fine not exceeding one, or where the offence is com- mitted at night, five jiounds. G9. An insi)ector before entering, in pursuance of the powers conferred by this Act, without the consent of the occupier, any room or place actually used as a dwelling as well as for a factory or workshop, shall, on an affidavit or statutory declaration of facts and reasons, obtain written authority so to do from a Secretary of State, or such wari'ant as is hereinafter mentioned from a justice of the peace. The alFahivit or statutory declaration above mentioned may l)e in- spected or produced in evidence in all respects the same as an informa- tion on oath before a justice. A justice of the peace, if satisfied by information on oath that there is reasonable cause to suppose that anj' enactment of this Act is contia- vened in any such room or place as aforesaid, may in his discretion grant a warrant imder his hand authorising the inspector named therein at any time within the 2)eriod named therein, but not exceeding one month fi'om the date thereof, to enter, in jnii'suance of this Act, the room or place named in the warrant, and exercise therein the ])owers of in- TITK FACTOHY ACT. 511 siu'ction and examination coni'crivd by this Act, and the fines ami pro- visions of this Act with ivspect to obstruction of an inspector sliall a]i]tly accordingly. 70. Every inspector under this Act shall bej'iirnished with the jire- scribed certificate of his a])pointment, and on applying for admission to a factory or workshop sh;d], if recjuii'ed, jiroduce to the occupier the said certificate. Every person who forges or counterfeits any such certificate, or makes use of any forged, counterfeited, or false certificate, or personates the inspector named in any such certificate, or falsely pretends to Ix; an inspector under this Act, shall be lial)le to be imprisoned for a period not exceeding three months, with or without hard labdur. (2.) (JertifijiiKj SurycDus. 71. Where there is no certifying surgeon resident within three miles of a factory or workshop, the poor law medical officer shall be for the time being the certifying surgeon under this Act for such factory workshoj). 72. Subject to such regulations as may l)e from time to time :uade by a Secretary of State, an inspector may from time to time appoint sufficient number of duly registered medical practitioners to be certifying surgeons for the purposes of this Act, and may from tinie to time revoke any such apppointment. Every appointment and revocation of appointment of a certifying surgeon may be annulled by a Secretary of State upon appeal to him for that purpose. A surgeon who is the occupier of a factory or workshop, or is diriectly or indirectly interested therein or in any process or business carried oa therein or in a patent connected therewith, shall not be a certifying,- surgeon for that factory or workshop. A Secretar}^ of State may from time to time make rules for the guidance of certifying surgeons, and for the particulars to be registered respecting their visits, and for the forms of certificates and other docu- ments to be used by them. 73. A certificate of fitness for employment (p) shall not be granted for the purposes of this Act, except upon personal examination of the person named tiieri>in. A certifying surgeon shall not examine a child or young person for the purposes of a certificate of fitness for employment, t r sign any such ceitificate, elsewhere than at the factory or workshojj where such child or young person is or is about to be employed, unless the number oi children and young persons employed in that factory or workshop are less than five, or unless for some special reason allowed in writing by an inspector. ip) Sees. 27—33. 512 THE LAW OF MASTER AND SERVANT, If a certifying surgeon refuses to grant for any person examined by him a certificate of fitness for employment, he shall when reciuired give in writiu"- and si^ii the reasons for such refusal. 74 AVith respect to the fe.-s to he paid to certifying surgeons in respect of the examination of, and grant of certificates of fitness for eniploynient for, children and young persons in fa.torii^s or workshops, the iollowmg proAHsions shall have effect : (1.) The occupier may agree with the certifying surgeon as to the amount of such fees : (2.) In the absence of any such agreement the fees shall be those named in the following scale : — AVhen the examination is at a factory or workshop not ex- ceeding one mile from the surgeon's residence, When the examination is at a factory or workshop more than one mile from the surgeon's residence, '2s. ad. for each visit and (id. for each per- son after the first five examined at that visit. The above fees and an additional Qd. for each complete half mile over and above the mile. \6(/. for each person ex- / amined. "When the examination is not' at the factory or workshop, l)ut at the residence of the surgt^on, or at some place appointed by the surgeon for the ])ur2"iose, and which place, as well as the day and hour, ' appointed for the purpose shall be published in the prescribed manner, ' (3.) The occupier shall pay the fees on the conii)letion of the ex- amination, or if any certificates are granted at the time at which the surgeon signs the certificates, or at any other time directed by an inspector : (4.) The occupier may deduct the fee or any part thereof, not ex- ceeding in any case threeyx'nce, from the wages of the pereon for whom the certificate Avas granted : (.").) A Secretary of State may from time to time, if he think it expedient, alter any h*es fixed by this section. {:).) Mi.icellinicojfa. 7.'). Every person shall, witliin one month after he begins to occupy a fai-tory, .serve on an ins])ector a wiitten notice containing the name of the factory, the i)lace where it is situate, tlie address to whicli he desires THE FACTORY ACT. 513 his letters to lie adilressed, tlie nature of tlie work, tlie nature and amount of the mc)vin<,' power therein, and the name of the firm under Avliich the business of the factory is to be carried on, and in default shall be lialde to a fine not exceeding five pounds. 76. Where an inspector, by notice in writing, names a jiublic clock, or some othi-r clock open to pulilic view, for the |)urpose of regulating the period of employment in a factory or workshoji, the ])eriod of em- ployment and times allowed for meals for children, young persons, and women in that factory orworkshop shall be regulated by that clock, which shall be specified in the notice {(f) aftixed in the factory or workshop. 77. The occupier of every factory and workshop to which this section applies shall keep in the prescribed form and with the prescribed particulars registers of the children and young persons employed in that factory or workshop, and of their employment, and of other matters under this Act. The occupier of a factory or workshop shall send to an inspector such extracts from any register kept in pursuance of this Act as the inspector from time to time rei^uires for the execution of his duties under this Act. This section applies to every factory and Avorkshop in which a child or young person under the age of sixteen years is, for the time being, prohibited under this Act from being employed without a certificate of fitness for employment. AVhere by reason of the numlier of children and young persons employed in a factory or workshop to which this section does not for the time being apply, or otherwise, it seems expedient to a Secretary of State so to do, he may order the occupier of that factory or Avorkshop to keep a register vinder this section, with power to rescind such order, and Avhile such order is in force this section shall apjily to that factory or workshop. In the event of a contravention of this section in a factory or Avork- shop, the occupier of the factory or AVorkshop shall be liable to a fine not exceeding forty shillings. 78. There shall be affixed at the entrance of a factory and a Avorkshop, and in such other parts thereof as an inspector for the time being directs, and be constantly kept so affixed in the prescribed form and in such position as to be easily read by the persons employed in the factory or AvorkshojD, — (1.) The i^rescribed abstract of this Act ; and (2.) A notice of the name and address of the prescriVied inspector ; and (3.) A notice of the name and address of the certifying surgeon for the district ; and (4.) A notice of the clock (if any) by Avhich the period of emjdoy- ment and times for meals in the factory or AVorkshop are regulated ; and (q) Sees. Gl and 78. 514 THE LAW OF MASTER AXD SERVANT. (5.) Every notice and tUicunu-nt icqnircil liy this Act to be affixed in the factory or workshop (r). In the event of a contravention of this section in a factory or -work- shop, the occupier of the factorj- or Avorksliop shall he liable to a fine not exceeding forty shillings. 79. Anv notice, order, requisition, summons, and document under this Act may he in writing or ]U'int, or partly in writing and partly in print. Any notice, order, retpiisition, summons, and document refpiired or authorised to he served or sent for the purposes of this Act may be served and sent by delivering the same to or at the residence of the person on or to whom it is to be served or sent, or, Avhere tliat person is the occiipier of a factoiy or workshop, by delivering the same or a true copy thereof to his agent or to some person in such factoiy or workshop ; and it may also be served or sent by i)ost by a prepaid letter, and if served or sent by post shall be deemed to have Ijeen served and received respectively at the time when the letter containing the same Avould be delivered in the ordinary course of post, and in proving such service or sending it shall be sufficient to prove that it was properly addressed and put into the post ; and where it is required to be served on or sent to tlie occujiier of a factory or workshop, it shall be deemed to be properly addressed if addressed to the occupier of such factory or workshop at the factory or workshop, witli tlie addition of the proper postal address, but ■vnthout naming the person who is the occupier. 80. Any Act for the time being in force relating to weights and measures (,s) sliall extend to weights, measures, scales, balances, steel- yards, and weighing machines used in a factory or workshop in checking or ascertaining the wages of any person employed therein, in like manner as if they were used in the sale of goods, and as if such factorj' or workshop were a place where goods are kept for sale, and such Act sliall apply accordingly, and every insiiector of, or other person autho- rised to inspect or examine, weights and measures, shall inspect, stamp, mark, search for, and examine the said weights and measures, scales, balances, steelyards, and weighing machines accordingly, and for that purpose shall have the same powers and duties as he has in relation to weights, measures, scales, balances, steelyards, and weigliing machines used in the sale of goods. (4.) Filter. 81. If a factory or workshop is not kept in conformity with this Act, the occupier thereof shall be liable to a fine not exceeding ten pounds (t). (r) See. f)l. (t) As to recovery of fines, ss. {s) Wcif;hts and Measures Act, 89, 00. See also .sees. 22 31 35, 1878, 41 &i 42 Vict. c. 49. 68, 77 and 78. THE FACTORY ACT. '')!'") The court of suiuinaiy jurisdiction, in aildition to or instead of inflicting such fine, may order certain means to Lt- adojitcd l>y the occupier, within the time named in the or(U'r, for the purpose of bring- ing his factt)ry or workshoi) into conformity with this Act ; tlic court may, upon application, euLirge the time so named, hut if, after the ex- piration (if the time as originally named or enlarged hy subsequent order, the order is not complied with, the occupier shall be liable to a fine not exceeding one pound for every day that such non-compliance continues. 82. If any person is killed oi»suffers any bodily injury in conseciuence of the occupier of a factory lia\-ing neglected to fence any machinery required by or in pur.suancc; of this Act to be securely fenced (x), oi- having neglected to inaiutain such fencing, or in consequence of the occupier of a factory or workshop having neglected to fence any ^•at, pan, or other structure lequired by (ir in pursuance of this Act to be securely fenced, or having neglected to maintain such fencing, the occupier of the factory or workshop shall be liable to a fine not exceed- ing one hundred pounds, the whole or any part of which may be applied for the benefit of the injured person or his family, or otherwise as a Secretary of State determines : Provided that the occupier of a factory shall not be lialde to a fine under tliis section if an information against him for not fencing the part of the machinery, or the vat, pan, or other structure, by which the death or bodily injury was inflicted, has been heard and dismissed previous to the time when the death or bodily injury was inflicted. 83. Where a child, young person, or woman is emj)loyed in a factory or workshop contrary to the provisions of this Act, the occupier of the factory or workshop shall be liable to a fine not exceeding three, or if the offence was committed during the night, five pounds for each child, young person, or woman so employed ; and where a child, young person, or woman is so employed in a factory or workshop within the meaning of section sixteen of this Act, the occupier shall be lial>le to a fine not exceeding one, or if the offence was committed during the night, two pounds for each child, young person, or woman so employed. A child, young person, or woman who is not allowed times for meals and absence from work as recpiired by this Act, or during any part of the times allowed for meals and absence from Avork is, in contravention of the provisions of this Act, employed in the factory or workshop or allowed to remain in any room, shall be deemed to be employed contrary to the provisions of this Act. 84. The parent (y) of a child or young person shall, — (1.) If such child or young person is employed in a factory or work- shop contrary to the provisions of this Act, lie liable to a fine not exceeding twentv shillings- for each otfence, unless it (.r) Sees. 5, 6, 7. Uj) Sec. 96. I. L 2 510 THE LAW OF MASTER AND SKRVANT. appears to the cdiirt that sncli ofTenccMvas cnminittcd without tho consent, connivance, or wilful del'ault of such parent ; and (2.) If he neglects to cause such child to attend school in accord- ance Avith this Act (v), be liable to a tine not exceeding twenty shillings for each offence. 8"). Every person wlio forges or counterfeits any certificate for the ]iurposes of this Act (for the forgery or counterfeiting of which no other punishment is provided), or who gives or signs any such certificate knowing the same t(j be false in any material particular, or wlio know- ingly utters or makes use of any certificate so forged, counterfeited, or false as aforesaid, or who knowingly utters or makes use of as api)lying to any person a certificate which does not so apply or who personates any person named in a certificate, or who wilfully connives at the forging, counterfeiting, giving, signing, uttering, making use, or personating as aforesaid, shall be liable to a fine not exceeding twenty pounds, or to im- prisonment for a term not exceeding three months Avith or A\ithout hard labour. Every person Avho wilfully makes a false entry in any register, notice, certificate, or document rei[uired by this Act to be kept or served or sent, or who Avilfully makes or signs a false declaration under this Act, t)r Avho knowingly makes use of any such false entry or declaration, shall l)e liable to a fine not exceeding tAventy pounds, or to imprisonment for a term not exceeding three months Avith or Avithout hard labour. 86. Wheie an ofi'ence for Avhich the occupier of a factory or Avorksho]> is liable under this Act to a fine, has in fact been committed by some agent, servant, Avorkman, or other person, such agent, servant, Avorkman, or other person shall be liable to the same fine as if Ik- avcic the occupier ((()• 87. "Where the occujiier of a factory or Avorkshop is charged Avith an oftence against this Act, he shall be entitled upon information duly laid by him to have any other person Avhom he charges as the actual offender brought Tjefore the court at the time ai)})ointe(l for hearing the cliarge ; and if, after the commission of the offence has been proved, the occui>ier of the factory or Avorksho]) ])roves to the satisfaction of the court that he had used due diligence to enforce the execution of the Act, and tliat the said other ])erson had committed the ottence in ([uestion Avithout his knoAA'ledge, consent, w conniA-ance, the said other person shall be summarily convicted of such oUeuci', ami the occupier shall be exempt from any fine. When it is made to appeal' to the satisfaction nf an inspector at the time of discovei-ing the otlence, that the occupier of the factory or Avorkshop had used all due diligciu'e to enforce the execution of this Act, and also by Avhat i)erson such offence had been committed, and also that it had been committed Avithout the knowledge, consent, or {z) Sec. 23. {(i) Sec. 81. THE FACTOKY ACT. 517 connivance of the occiii)ier and in eontiaventimi of his onlcr.s, tlieii tlie inspector shall proceed against the per.suii wlioui he helievess to Le the actual olfendcr in the first instance, without first proceeding against the occupier of the factory or -workshop. 88. A person shall not he lialile in respect uf a repetition of the same kind of ulfence fioni day to day to any lai'ger amount of tines than the highest fine fixed by this Act for the olfence, except— (a.) Avhere the repetition of the offence occurs after an information has been laid for the previous olfence ; or (h.) where the otfence is one of employing two or more children, young persons, or women contrary to the provisions of this Act. (5.) Li(jal I'roceediiicis. 89. All olfences under this Act shall he prosecuted, and all fines under this Act shall be recovered, on summary conviction before a court of summary jurisdiction in manner i)rovided by the Sunmiary Jurisdiction Acts (h). A summary order may be made for the purposes of this Act by a court of sunmiary jurisdiction in manner provided by the Summary Jurisdiction Acts. All fines imposed in pursuance of this Act shall, save as otherwise expressly provided by this Act, be paid into the Exchecpier. The court of summary jurisdiction, when hearing and determining a case arising under this Act, sliall be constituted either of two or more justices of the peace sitting at some court or public ])laci' at mIucIi justices are for the time being accustomed to assemble for tlie purpose of holding petty sessions or of some magistrate or officer sitting alone or with others at some court or other place a^jpointed for the public administration of justice, and for the time being empowered by law to do alone any act authorised to be done by more than one justice of the peace. "Where a proceeding is taken before a court of summary jurisdiction with respect to an offence against this Act alleged to be comnutted in or with reference to a factory or workshop, the occupier of that factory or workshop, and the father, son, or brother of such occupier, shall not be cpialified to act as a member of such court. 90. If any person feels aggrieved by a conviction or order made by a court of summary jurisdiction on determining an information or complaint nnder this Act, he may appeal (c) therefrom ; subject, in England, to the condition.s and regulations following : (1.) The appeal shall be made to the next practicable court of general or quarter sessions having jurisdiction in the county {b) 11 & 12 Yict. c. 43, and Sum- (c) Sec. 91, sub-s. G, and ss. 31 mary Jiu'isdictiou Act of 1879 (42 & and 32 of Summary Jurisdiction Act 43 Vict. c. 49). of 1879. 518 THE LAW or MASTER AND SERVANT. or place in wliicli the decision of the court was given, holJen not less than twenty-one clays after the day on which !?iich decision was given ; and (2.) Tlie appellant shall, within ten days after the day on which the decision of the court was given, serve notice on the oilier party and on the clerk of the conrt of smnniary jurisdiction of his intention to appeal, and of tlie general grounds of such appeal ; and (3.) The appellant shall, within three days after such notice is served, enter into a recognizance before a court of summary jurisdiction, with or without a surety or sureties as the court may direct, conditioned to appear at the said sessions and to try such ajjpeal, and to abide the judgment of the court thereon, and to pay such costs as may be awarded by the court, or the appellant may, if the court of summary juris- diction thinks it expedient, instead of entering into a recognizance give such other security by de])osit of money with the clerk of the court of simimarv jurisdiction or otherwise as the court deem sufficient ; and (4.) Where the appellant is in custody a court of summary juris- diction may, if they think fit, on the appellant entering into such lecognizance or giving such other security as aforesaid, release him from custody ; and (5.) The court of appeal may adjourn the hearing of tlie appeal, and upon tlie hearing thei'eof may contirm, reverse, or modify the decision of the court of summary jirrisdiction, or remit the matter to the court of summary jurisdiction with the opinion of the court of appeal thereon, or make such other order in the matter as the court thinks just ; and (6.) The court of appeal may also make such order as to costs to be paid by either ])arly as the court thinks just ; and (7.) "Whene^-er a decision is reversed by the court of appeal the clerk of the jjeace shall indorse on the conviction or order appealed against a memorandum that the same has been quashed, and whenever any cojjy or certificate of such con- viction or order is made, a copy of such memorandum shall be added thereto, ;ind shall be sufficient evidence that the conviction or oi'der has been quashed, in every case Avhere such copy (U" certificate would be sufficient evidence of such convicti(m or order ; and (8.) Eveiy notice in writing reipiired l)y this .sectit)n to l)e given by an a])])ellant may be signed by him or by his agent on his behalf, and may be transmitted in a registered letter by the jjost in the ordinary way, and shall be deemed to liave been Herved at the time when it W(nild be delivered in the ordinary course of ])ost. THE FACTORY ACT. 519 91. The following provisions hIkiII luive eflVct -with respect to .suiii- iiiary proceedings lor otlences and tines under this Act : (1.) The information shall be laid within two months, or, where the offence is punishable at discretion Ijy imprisonment, or is 11 breach of the provisions of this Act with respect to holidays, within three months after the commission of the offence : (2.) The description of an offence in the words of this Act, or in similar words, shall be sufficient in law : (3.) Any exception, exemption, proviso, excuse, or (qualification, whether it does or not accompany the description of the offence in this Act, may be proved by the defendant, but need not be specified or negatived in the information, and it so specified or negatived, no proof in relation to the matters so specified or negatived shall be re(|uired on the part of the informant : (4.) It shall be sufficient to allege that a factory or workshop is a factory or workshop within the meaning of this Act, without more : (o.) It shall be sufKcient to state the name of the ostensible occupier of the factory or workshop or the title of the firm by which he occupier employing persons in the factory or workshop is usually known : (6.) A conviction or order made in any matter arising under this Act, either originally or on appeal, shall not be quashed for Avant of form, and a conviction or order made by a court of summary jurisdiction against which a person is authorised by this Act to aj)peal shall not be removed by certiorari or otherwise, either at the instance of the Crown or of any private person, into a superior court, except for the purpose of the hearing and determination of a special case. 92. If a person is found in a factory, except at meal times, or while all the machinery of the factory is stopped, or for the sole purpose of bring- ing food to the persons employed in the factory between the hours of four and five o'clock in the afternoon, such person shall, until the con- trary is proved, be deemed for the purposes of this Act to have been then employed in the factory : Provided that yards, playgrounds, and places open to the public view, schoolrooms, waiting rooms, and other rooms belonging to the factory in which no machinery is used or manufacturing process carried on, shall not be taken to be any part of the factory within the meaning of this enact- ment ; and this enactment shall not apply to a factory or workshop to which the provisions of this Act with respect to the atlixing of notices do not apply (d). Where a child or young person is, in the opinion of the court, ap- {d) Sec. 61. 520 THE LAW OF MASTER AND SERVANT. paivntly of tla- a^o allogcil In- the iiil'drinant, it .-liall lie dU the delen- daut to pi'Dve that the ehihl or youni; person is not of that age. A dechiration in writing by a certifying surgeon lor the district that he has ])ersonally examined a person employed in a factory or worksho]i in that district, and helie\-es liim to he under the age set forth in the declaration, shall be admissible in e\i(k'nce of the age of that person. A cojiyof a conviction for an offence against this Act pni'porting to he certified under the hand of the clerk of the peace having the custody of such conviction to he a true copy shall he ieceival)le as evidence, and every such clerk of the peace shall, upon the Avritten request of an in- spector and payment of a fee of one shilling, deliver to him a copy of the conviction so certified. PART IV. Definitions, Savings, Aitlication to Scotland and Ireland, AND Repeal. (1.) Definitions. 93. The expression " textile factory " in this Act means — any premises wherein or within the close or curtilage of which steam, water, or other mechanical power is nsed to move or work any machinery employed in preparing, manufacturing, or finishing (e), (c) As to "finishing" and "inci- dent," see W/ii/mper v. Harney (1865), 18 C. B. N. S. 243 ; 34 L. J. JI. C. 113. (Weaving or plaiting of cotton tliread by steam, or other me- chanical ]io\ver, into a covering for strips of iron, to be used in making crinoline skirts, a process incidental to the manul'acture of a cotton fabric, within 7 Vict. c. 15, s. 73.) Ifardmsllc v. Junes (1862), 3 15. k S. 153 ; 32 L. .T. M. C. 49. (S. B., ein- ]iloyed ill "skut(;hing" — that is, tlie tiist jirocess of finishing goods, wliicli liave been printed — in a room where no persons were employed in ]iriiiting figures. Ihit this room liad direit communication witli the print works, in whicli all the inoccssos of printing were carried on : held that S. B. was employed in a ]irint work. The Court did not decide whether skutch- iiig was an "incident to printing Jirocess.") Tuvlor v. J/ickrs (1862), 12 C. B. JJ. S.'l52 ; L. J. M. C. 242. (Api)ellant, occiijiier of premises in wliicli steam jiower was used to drive machinery employed in manufactur- ing webbing, of -which men's braces and horses' girths were made. The premises formed a square ; on the left were the buildings in which .steam power was used ; on the right the nianufiicture of braces and girths was carried on. II., a child, was em]ilo3'cd in boring holes in pieces of leatlier to l>e attaclicd to the webbing. No part of the webbing was jilaced in his hands, and no ma- chinery was in the room in which ho was employed : held eni])loyment in a factory within 7 & 8 Vict. c. 15.) Jfoif/e V. Onnii (1862), 12 V. B. N. S. 124. (Child employed by calico ]n-inters; bleaching, dyeing, and linishing or stilfeiiiiig were jierformed at one mill belonging to appel- lants, printing at another. These jilaecs were seven miles apart : held that a child emjiloyed at tlie foinier was em]il()yed in "an inci- dental " printing process within 8 k. 9 Vict. e. 21', and tliat tiie place where lie was eniiiloyed formed a jiart of "the establi.slimi'nt wlicre the chief process of printing was carried THE FACTORY ACT. 521 or in any ])rocc'S3 incident to tlu' niamil'acture of, cotton, wool, hair, silk,lla.\, hemp, jute, tow, china-^a-ass, cocoa-nut fibre, or otlier like material, either separately or mixed together, or mixed Avith any other material, or any fabric made thereof : Provided that print works, bleaching and dyeing works, lace warehouses, paper mills, Max scutch mills, roiie works, and hat works shall not be deemed to be textile factories. The expression " non-textile factory " in this Act means — (1.) any works, warehouses, furnaces, mills, foundries, or places named in Part One of the Fourth Schedule to this Act, (2.) also any premises or places named in Part Two of the said schedule wherein or within the close or curtilage or precincts of which, steam, water, or other mechanical power is used in aid of the manufacturing process carried on there, (3.) also any premises wherein, or within the close or curtilage or precincts of which, any manual labour is exercised by way of trade or for jmri^oses of gain in or incidental U> the following purposes, or any of them ; that is to say, (((.) in or incidental to the making of any article or of part of any article, or (h.) in or incidental to thealteiing, repairing, ornamenting, or finishing of any article, or (('.) in or incidental to the adapting for sale of any article, and wherein, or within the close or curtilage or precincts of which steam, water, or other mechanical power is used in aid of the manufacturing jjrocess carried on there. The expression " factory " in this Act means textile factory and non- textile factory, or either of such descriptions of factories. The expression " workshop " in this Act means — (1.) any premises or places named in Part Two of the Fourth Schedule to this Act, which are nut a factory within the meaning of this Act, on.") Hovjnrth v. Coles (1862), 12 then on to spools : held that the C B. N. S. 139. (A child wliose latter premises were a factory within sole business Avas "raising," or 3 & 4 Will. IV., c. 103; and that finishing fustians at works where no the winding was a process incidental bleaching or dyeing was done, not to the manufacture of thread.) (Jules within tlie Bleaching and Dj'eing v. Dickinson (1864), 1(3 C. B. N. S. Works Act, 23 & 24 Vict. c. 78.) 604 ; 33 L. J. M. C. 235. (Respondents Finishing, ins. 7, " evidently means owned a paper mill at Manchester, finishing as incidental to the opera- and another in Herts ; the former tions of bleaching or dyeing." used for sorting, cleaning, and work- IByles, J. Haydoiiw Taylur{\S6'd), ing up rags, and reducing them "to 33 L. J. M. d 30. rXhread manu- half stuff." Atthelatter this "stuff" i'actured in hanks at respondent's was converted into paper : held, on manufactory at Mansfield. These the authority of IIoijlc v. Oram, that hanks were sent to his manufactory the two were parts of one factory and at Leicester, to be wound by machinery that the latter was exempted from the moved by steam on to cops, and operation of the 7 & 8 Vict. c. 15.) 522 THE LAW OF MASTER AND SERVANT. (2.) also any premises, room, or place not being a factory within the meaning of this Act, in which premises, room, or place, or vithiii the close or curtilage or precincts of which premises, any manual labour is exercised l)y way of trade or for purposes of gain in or incidental to the following jourposes or any of them ; that is to say, (((.) in or incidental to the making e)f any article or of part of any article, or (b.) in or incidental to the altering, repairing, ornamenting, or finishing of any article, or (c.) in or incidental to the adapting for sale of any article, and to which or over which premises, room, or place the employer of the persons working therein has the right of access or control. A part of a factory or workshop may fur the purposes of this Act be taken to be a separate factory or workshop ; and a place solely used as a dwelling shall not be deemed to foi-m part of the factory or workshop for the pitrposes of this Act. Where a place situate within the close, curtilage, or i)recincts forming a factory or workshop is solely used ior some purpose other than the manufacturing process or handicraft carried on in the factoiy or work- shop, such i^lace shall not be deemed to form part of that factoiy or workshop for the purposes of this Act, but shall, if otherwise it would be a factory or workshop, be deemed to be a separate factory or work- shop, and be regulated accordingly. Any premises or place shall not be excluded from the definition of a factory or workshop by reason only that such premises or place are or is in the open aii(/). This Act shall not apply to such workshops, other than bakehouses, as are conducted on the system of not employing any child, young person, or woman therein, but save as aforesaid applies to all I'actories and work- shops as before defined, inclusive of factories and workshops belonging to the Crown ; provided that in case of any jniblic emergency a Secretary of State may e.\emi)t a factory or workshop belonging to the CroAni from this Act to the extent and during the period named l)y him. The exercise by any child or young person in any recognised eflicient school during a portion of the school hours of any manual labour for the purpose of instructing such child or young person in any art or handi- craft, shall not be deemed to be an exercise of manual labour for the purpose of gain within the meaning of this Act. 94. A child, young person, or woman who works in a factory or work- shop, whether for wages or not, eillu-r in a manufacturing process or if) Intendna to obviate the (lecisiou gmvcy. L-i'. (1874), L. R. 9 Q. B. \\\'Knitv. Asllr.if {\^m),\.. W. 5 g. 363; 4.". L. J. J\I. C. 10r>. See J}. 19 ; 39 L. J. M. C. 3 ; and Itcd- note (a.) THE FACTORY ACT. 523 liaiulicraft, or in ck-aniiig any i)ait of tlic facton' or workshop used for any manufacturing jwocess or handicraft, or in cleaning or oiling any part of the machinery, or in any other kind of work whatsoever incidental to or connected with the manufacturing process or handicraft, or con- nected with the article made or otherwise the subject of the manfactur- ing process or handicraft therein, shall, save as is otherwise provided by this Act, be deemed to be emjiloyed therein within the meaning of this Act. For the purposes of this Act an apprentice shall Ije deemed to work for hire. 95. The expression " ceitified efficient school" in this Act means a public elementary school within the meaning of the Elementary Educa- tion Acts, 1870 and 1873, and any workhouse school in England certified to be efficient by the Local Government Board, and also any elementary school which is not conducted for private profit and is open at all reasonable times to the inspection of Her Majesty's inspectors of schools, and re(iuires the like attendance from its scholars as is requu-ed in a public elementary school, and keeps such registers of those attend- ances as may be for the time being re(pured by the Education Depart- ment, and is certified by the Education Department to be an " efficient school;" and the expression "recognised efficient school" means a certified efficient school as above defined, and also any school which the Education Department have not refused to take into consideration under the Elementary Education Act, 1870, as a school giving efficient elementary education to and suitable for the children of a school district, and which is recognised for the time being by an inspector under this Act as giving efficient elementary education, and the inspector shall immediately report to the Education Department every school so recognised by him. 96. In this Act, unless tlu' context otherwise re(|uires, — The expression " child " means a person under the age of fourteen years : The expression " young person " means a person of the age of fourteen years and under the age of eighteen years : The expression "woman" means a woman of eighteen years of age and upwards : The expression " parent "(;/) moans a jiarcnt or guardian (jf, or person having the legal custody of, or the control over, or having direct benefit from the wages, of a child or young person : The expression "Treasury" means the Commissioners of Her Majesty's Treasury : The expression " Secretary of State " means one of Her Majesty's Principal Secretaries of State : (g) See s. 3 of Education Act of IS 70. 524 TIIK LAW OF MASTER AND SERVANT. The expression " Ediu-ation Departiueiit '' means the Lords of the Comuiittoe of the Privy Council on Education : Tlie expression " sanitary authority " means anurl)an or rural sanitary authority within the meaning of the Puhlic Healtli Act, 1875, and any tH)mmissions, board, or vestry in the metropolis having the like powers as such urban sanitary authority : The expression " person " includes u body of persons corporate or un- incorporate : The expression "weelc" means the period between midniglit on Saturday night and midnight on the succeeding Saturday night : The expression " night "' means the period between nine o'llock in the evening and six o'clock in the succeeding morning : The expression " jtrescribed " means prescribed for the time being by [a Secretary of State : The exi>ression " Summary Jurisdiction Acts " means the Act of the session of the eleventh and twelfth years of the reign of Her present Majesty, chapter forty-three, intituled "An Act to facilitate the performance of the duties of justices of the peace out of sessions M'ithin England and Wales with respect to sunnnarj^ convictions and orders," and any Acts amending the same : The expression "court of summary jurisdiction " means any justice or justices of the peace, metroj^olitan police magistrate, stipendiary or other magistrate, or olticer, by whatever name called, to whom jurisdiction is given by the Summary Jurisdiction Acts or any Acts therein referred to : The expression "mill-gearing" comprehends every shaft, whetlier upright, obliipie, or horizontal, and every wheel, drum, or jiulley by which the motion of the first moving power is communicated to any machine appertaining to a manufacturing process. Tlie factories and workshops named in the Fourth Schedule to this Act are in this Act referied to liv the names therein assigned to them. Special Exemption of certain Trades. 97. The exercise in a private house or private room by the family dwelling therein, or Ity any of them, of manual labour by Avay of trade or foi' tlie purposes of gain in or incidental to any of the handicrafts specified in the Fifth Scliedule to this Act, sliall not of itself constitute such house or room a workshop within tlie meaning of this Act. When it is proved to the satisfaction of a Secretary of State that by reason of the light character of the liandicraft carried on in any private house or private room by the family dwelling therein, or by any of them, it is exjiedient to extend this section 1(j that handicraft, he may by order extend the same. The order shall Ijc made in manner jnovided by Part Two of this TIIK FACTOKY ACT. OZO Act, ami tliat part sliall aj)])!}' so far as ciicumstances admit as if tlie order Avere an order extending an exception. 98. The exercise in a private house or private room l)y tlic family dwelling therein, or by any of them, of manual labour for the purposes of gain in or incidental to some of the purposes in this Act in that behalf mentioned, shall not of itself constitute such house (jr room a workshop where the labour is exercised at irregular intervals, and does not furnish the whole or principal means of living to such family. {■2.) S'lvings. 99. Where in a factory the owner or hirer of a machine or implement moved l)y steam, water, or other mechanical power, in or about or in connection with which machine or implement children, young persons, or women are employed, is some person other than the occupier of the factory, and such children, young persons, or women are in the emi^loy- ment and pay of the owner or hirer of such machine or implement, in any such case such owner or hirer shall, as far as respects any offence against this Act which may be committed in relation to such children, young persons, or women, be deemed to be the occupier of the factory. 100. Nothing in this Act shall extend — (1.) To any young person, being a mechanic, artisan, or lal)ourer, Avorking only in repairing either the machinery in or any l^art of a factory or workshop ; or (2.) To the process of gutting, salting, and packing fish immediately upon its arrival in the fishing boats. 101. The provisions of section ninety-one of the Public Health Act, 1875, with respect to a factory, workshop, or workplace not kept in a cleanly state, or not ventilated or overcrowded, shall not apply to a factory or woikshop which is subject to the provisions of this Act relating to cleanliness, ventilation, and overcrowding, but shall apply to every other factory, workshop, and workplace. It is hereby declared that the Public Health Act, 187"), siiall apply to buildings in which persons are employed, whatever their number may be, in like manner as it applies to buildings where more than twenty are employed. 102. Any enactment or document referring to the Acts repealed by this Act, or any of them, or to any enactment thereof, shall l)e construed to refer to this Act and to the corresponding enactment thereof. (3.) ApiAiadion of Act to Scotland and Ireland. 103. The provisions of this Act shall, in the case of a factory or work- shop in Scotland or Ireland, in Avhich a child under the age of ten years may lawfully be employed at the passing of this Act, be modified as follows ; that is to say. 52G THE LAW OF JIASTEIl AND SERVANT. (1.) Shall ajtply duiiiiL:; Iwelvr inonths after the coimneiiceiueut of this Act to children of the aj^e of nine years and upwards, as if they -were of the age of ten years ; and (2.) Sliall not prevent a child who, hefore the comniencenieut of this Act, is lawfully employed in any factory or workshop as a child under the age df nine years, or any child who duiing the twelve months next after the connnencement of this Act is lawfully employed in any factory or workshop as a child under the age of ten years, from continuing to be employed in a factory or workshop in like manner as if the child were above the age of ten years ; and (3.) Shall apph' during twelve months after the commencement of this Act to children of the age of thirteen years and upwards as if they were young persons ; and (4.) Shall not prevent a child, Avho before the expiration (jf twelw months after the commencement of this Act is lawfully em- ployed in a factory or workshop as a young person, from continuing to be emi>loyed in a factory or workshoji as a young person. 104. "Where the age of any child is recpiired to be ascertained or proved for the purposes of this Act, or for any purpose connected Avilh the elementary education or employment in lal)our of such child, any person, on presentijig a written requisition in such form and containing such particuhirs as may be from time to time prescribed by a Secretary •of State, and on payment of such fee, not exceeding one shilling, as a Secretary of State from time to time fixes, shall be entitled to ol)tjun — (1.) In Scotland an extract binder the hand of the registrar imder the Act of the seventeenth and eighteenth years of Her jiresent ]\iajesty, chaiiter eighty, and any Acts amending the same, of the entry in the register kept under those Acts ; and (2.) In Ireland a certilied copy under the hand of the n-gistrar or superintendent registrar under the Eegistration of Births and Deaths (Ireland) Act of the entry in the register under that Act of the birth of the child named in the reij^uisition. 105. In the application of this Act to Scotland — (1.) The expression " certified efficient School " means any public or other elementary school under Government in.sj)ection : (2.) In lieii of Christmas J^ay and either (Jood Friday or the lU'xt ]niblic holiday under the Holidays Extension Act, 187'), there shall be allowed as a holiday to every cliild, young jterson, and woman eni])loycd in a factory or workshop the whole of two days separated from each other by an interval of not less than three months, one of which shall be a day set apart by the Church of Scotland for the observance of the sacra- mental fast in the parish in which the factory or workshop TIIH FACTORY ACT. 527 is situate, or some otlier day substituted for siu-li day as aforesaid by the occupier specifying the same in the notice affixed in tlie factory or -workshop : (3.) The expression " sanitary authority " means the hical authority under the Public Health (Scotland) Act, 18G7 : (4.) The expression " medical officer of health " means the medical officer under the Public Health (Scotland) Act, 1867, or -where no such officer has been appointed, the medical oflicer appointed by the parochial lioard : The expression " poor law medical oilicer " means the medical officer appointed by the parochial board : (5.) The expression " Companies Clauses Consolidation Act, 1845," means the Companies Clauses Consolidation (Scotland) Act, 1845: (6.) The expression " Summary Jurisdiction Acts " means the Summary Procedure Act, 18(54, and any Acts amending the same : (7.) The expression "court of summary jurisdiction" means the sheriff of the county or any of his substitutes : (8.) Tlie expression " Education Department " means the Lords of the Conmiittee of the Privy Counsel appointed by Her Majesty on Education in Scotland : (9.) The expression " county court " nutans the slierifl' court : (10.) All matters required by this Act to l)e published in the London Gazette shall (if they relate exclusively to Scotland), instead of being published in the Lonthm Gazette, be published in the Edinburgh Gazette only : (11.) The expression " information " means petition or complaint : (12.) The expression "informant" means petitioner, pursuer, or complainer : (13.) The expression " defendant " means defendant or respondent : (14.) The expression " clerk of the peace " means sheriff clerk : (15.) All offences under this Act shall be prosecuted and all penal- ties under this Act shall be recovered under the provisions of the Summary Jurisdiction Acts at the instance of the procurator fiscal or of an inspector under this Act : (16.) The court may make, and may also from time to time alter or vary, summary orders under this Act on petition by such procurator fiscal or inspector presented in eonnnon form : (17.) All lines under this Act in default of payment, and all orders made under this Act failing compliance, may be enforced by imprisonment for a term to be specified in the order or con- viction, but not exceeding three months : (18.) It shall be no objection to the competency of an inspector to give evidence as a -witness in any prosecution for offences 528 Tiu: LAW OF mastku and sehvant. iiudc'i- tliis Act, that sucli prosecution is ljrouL;ht at the instance of i^uch inspectoi' : (1!).) Every person convicted of an uifcnce vunlcr this Act shall be lialilc in the reasonahle costs and chai'ges of such conviction : {■20.) All penalties imposed and recovered under tliis Act shall be paid to the clerk of the court, and by him accounted for and ])aid to the Queen's and Lord Treasurer's Eemembrancer, on liehalf of H5r Majesty's Exche(|uer, and shall be carried to the Consolidated Fund : (21.) All jurisdictions, powers, and authoiities necessary for the purposes of this section are conferred on the sheritl's and their substitutes : (22.) Any pel son may appeal from any order or conviction under this Act to the Court of Justiciary, under and in terms of the Act of the twentieth ye?ft" of the reign of His Majesty King' George the Second, chapter forty-three, or under any enact- ment amending that Act, or applying or incorporating its provisions, or any of them, with regard to appeals, or to the Court of Justiciary at Edinburgh under and in terms of the Summary, Prosecutions Ap})eal (Scotland) Act, 1875. 10(). In the application of this Act to Ireland — (1.) Tlie expression " certified efficient School" means any national school, or any school recognised by the Lord Lieutenant and Privy Council as aftbrding sufficient means of literary educa- tion for the purposes of this Act : (2.) In lieu of any two half-holidays alloM-ed under (he provisions of sub-section (2) in section twenty -two of this Act, there shall be allowed as a holiday to every child, young person, and woman employed in a factory or workslio]) the whole of the seventeenth day of March ; Provided, that when this date falls on a Sunday, this sub-section shall have no eftect as regards such date : (:;.) The expression "sanitary authority" means an urban or rural sanitary authority within the meaning of the Public Health (Ireland) Act, 1874, and any Act amending the same : (4.) The expression " medical ofiicer of health " means the medical .sanitary officer of the sanitary district : The expressi(m " poor law medical olficer '' means the dispensary doctor : (').) Any act authorised to be done or consent riMj^uirt'd to be given bv the Education Department under this Act shall be done and Liiven by the Lord Lieutenant or Lords Justices of Ireland, acting by and with the advice of the Privy Council in Ireland : (6.) Tlie expression "county court" means the civil bill couit : (7.) The expression "Summary Jurisdiction Acts" means, within THE FACTORY ACT. 'y-'.) tlie police distiict of Dublin metropolis, the Acts regulating the ])()Wi'r.s and duties of Justices of the peace for such distiic.t, or of the police of such district, and elsewhere in Ireland tlie Petty Sessions (Ireland) Act, ISol, and any Act amending; the same : (8.) A court of summary jurisdiction when hearing and (U'teiniining an information or comi)laint in any matter arising under this Act shall be constituted within the police district of Dublin metropolis of one of the divisional justices of that district sitting at a police court within the district, and elsewhere of a stipendiary magistrate sitting alone, or with others, or of two or more justices of the peace sitting in petty sessions at a place appointc^l for holding petty sessions : (9.) Appeals from a court of summary jurisdiction shall lie in the ' manner and subject to fhe conjjitions and regulations pre- scribed in the twenty-fourth section of the Petty Sessions (Ireland) Act, 1851, and any Acts amending the same : (10.) All fines imposed under this Act shall, save as is otherwise expressly provided by this Act, be applied in the manner . directed by the Fines Act (Ireland), .1851, and any Act amending the same : (11.) The ]n-ovisions of section nineteen of the Public Health Act 1866, or of any enactment substituted for that section, with Inspect to any factory, workshop, or worki)lace not kejit in a cleanly state, or not ventilated, or overcrowded, shall not apply to any factory or Avorksho}) which is subject to the provisions of this Act with respect to cleanliness, ventilation, and overcrowding, but shall apply to every other factory, workshop, and workplace : It is hereby declared that the Sanitary Acts within the meaning of the Public Health (Ireland) Act, 1874, shall apply to buildings in which persons are employed, whatever their number may be, in like manner as they apply to buildings where more than twenty persons are employeil : (12.) All matters reij^uired by this Act to be published in the London Gazette shall, if they relate exclusively to Ireland, instead of being published in the London (iazette, be pub- lished in the Dublin Gazette only. (4.) Repeal. 107. The Acts specified in the Sixth Schedule to this Act are hereby repealed from and after the commencement of this Act to the extent in the third column of that schedule mentioned : Provided that — (1.) All notices affixed in the factory in iiursuance of the Acts K M O')0 THE LAW f>F MASTKll AND SKinANT. ]ieivl)y repealed .shall, so far as they are in accordance with the provisions of this Act, be deemed to have been affixed in pursuance of this Act ; and (2.) All inspectors, sub-inspectors, otlicevs, clerks, anroticiencv fixed by the Education Dei)art- ment in ])ursuance of any enactment hereby repealed shall be deemed to have been fixed in ])ursuance of this Act ; and (7.) A child exempted by section eight of the Elementary Education Act, 1870, from the provisions of section twelve of the Factory Act, 1S74, by reason of his having attained the age of eleven years before the first day of January, 1877, shall, on attaining the age of thirteen years, be deemed to be a young person within the meaning of this Act : (8.) This repeal shall not affect — (((.) Anything duly done or suffered under any enactment hei'cby n^pealed ; or (h.) Any obligation oi' liability iniuru'd under any enact- ment hereby repealed ; or ((•,) Any ])enalty or punishment incurred in respect of any olfence committed against an enactment liereby repealed ; or (r/.) Any legal ]irocceding or remedy in respect of any such obligation, liability, penalty, or ]umishnu'nt as afore- said, and any such legal ])roceeding and remedy may be carried on as if this Act had not passeil. THE FACTORY ACT. ."331 SCHEDULES. FIRST SCHEDULE. Special Provisions for Health. Factories and JVorhhops in, vMch the Emi)loyment of Younr/ Persons and Children is Restricted. 1. In a part of a factory or workshop in -which there is carried on — the process of silverin^ of mirrors by tlie mercurial process ; or the process of making,' wliite lead, a young person or child shall not l)e employed. 2. In tlie part of a factory in which tlie process of melting or anneal- ing glass is carried on a child or fi-male young person sliall not be employed. 3. In a factory or workshop in which there is carried on — («.) the making or finishing of bricks or tiles not being ornamental tiles ; or {h.) the making or finishing of suit, a girl under the age of sixteen years shall not be employed. 4. In a part of a factory or workshoj) in wliich there is carried on — ((7.) Any dry grinding in the metal trade, or (h.) the dipjiiug of lucifer matches, a child shall not be employed. 5. In any grinding in the metal trades other than dry grinding or in fustian cutting a child nnder the age of eleven years sliall not be employed. SECOND SCHEDULE. Special Restrictions. Places forbidden for Meals. The prohibition on a child, young jierson, or woman taking a meal or remaining during the times allowed for meals in certain parts oi factorie.s or workshops applies to the jiarts of factories and workshops following ; that is to say, (1.) In the case of glass works, to any part in which the materials are mixed ; and (2.) In the case of glass works where flint glass is made, to any part in which the work of grinding, cutting, or pulishing is carried on ; and (3.) In the case of lucifer-match works, to any part in which any manufacturing process or handicraft (except that of cutting the wood) is usually carried on ; and (4.) In the case of earthenware works, to any part known or used as dippers' house, dippers' drying room, or china scouring room. M ii 2 532 THE LAW OF MASTER AND SKHVANT. THIRD SCHEDULE. Spkcial Exckptioxs. Part I. Period of EiDjihujnienf. The exception respcMting the eiuployiiu-ut of children, yonng persons, nnd women between the hours of eiglit in tlie morning and eight in the I'vening, and on Saturday between the liours of eight in the morning and four in the afternoon or between the hours of seven in the morning and three in the afternoon, applies to any factory or workshop or part thereof in which any of the following manufacturing processes or handicrafts are carried on ; that is to say, (fit.) Lithographic printing : (b.) Turkey red dyeing : (c.) The making of any article of wearing apparel : ((/.) The making of furniture hangings : (e.) Artificial Hower making : (/.) Bon-]jon and CJhristmas present making : ((J.) Valentine making : (/^.) Fancy box making : (i.) Envelope making : (k.) Almanack making : (/.) Playing card making : (m.) Machine ruling : (n.) Biscuit making : (o.) Firewood cutting : (p.) Job dyeing : or (q.) Aerated water making ; and also to (r.) Book1)inding works : (s.) Letter-press printing works : and (t.) A part of a factory or workshop which is a warehouse not used for any manufacturing process or handicraft, and in which persons are solely employed in polishing, cleaning, wrapping, or packing up goods. Part IL Meal Hours. The case in wliicli tlie provisions of this Act as to meal times being allowed at the same hour of the day are not to apply are — (1.) The case of children, young ])ersons, and women employed in the following factories ; that is to say, Blast furnaces. TIIK FACTORY ACT. 533 Iioii mills, Paper mills, Glass works, and Letter-press jjriiitiug works ; (2.) The case of male young persons employed in that part of any print works or bleaching or dyeing works in whicli tlie process of dyeing or open-air bleaching is carried on. The cases in Avhich and the extent to which the iiruvisions of this Act as to a child, young person, or woman during the times allowed for meals being employed or being allowed to remain in a room in which a manufacturing process or handicraft is being carried on, are not to a])ply are,— (1.) The case of children, young persons, and women employed in the following factories ; that is to say, Iron mills. Paper mills, Glass works (save as otherwise provided by this Act), and Letter-press printing works ; and (2.) The case of a male young person employed in that part of any print works or bleaching and dyeing works in which the process of dyeing or open-air bleaching is carried on, to this extent, that the said provisions shall not i)revent him, during the times allowed for meals to any other young person or to any child or woman, from being employed or being allowed to remain in any room in Avliich any manufacturmg process is carried on, and shall not prevent, during the times allowed for meals to such male young person, any other young person or any child or woman from being employed in the factory or allowed to remain in any room in which any manufacturing process is carried on. Part IIL Overtime. The exception with respect to the employment of young persons and women for forty-eight days in any twelve months during a period of employment beginning at six or seven o'clock in the morning and ending at eight or nine o'clock in the evening, or beginning at eight o'clock in the morning and ending at ten o'clock in the evening, applies to each of the factories and workshops, and parts thereof, following ; that is to say, (1.) Where the material which is the subject of the manufacturing process or handicraft is liable to be spoiled by weather ; namely, {(I.) Flax scutch mills ; and 534 TIIK LAW OF JIASTEK AND SKKVANT. (6.) A factory or \vorksho]i ov jiait tlien-of in ■which is carried on the making or iiiiishing uf bricks or tiles not being ornamental tiles ; and (c.) The part of rope works in which is carried on the open-air process ; and {(I.) The part of bleaching and rocess incidental ti. making percussion ca])s ; (().) " Cartridge works," that is to say, any place in which persons work for hire in making cartridges, or in any process incidental to making cartridges, except the manufacture of the pajjcr or other material that is used in making the cases of the cartridges ; (7.) "Paper-staining works," that is to say, any i>lace in wliicli THE FACTORY ACT. 5'J7 persons work fur hire in ])riiiliii,L,' ii juitti'ru in colours upon sheets of paper, either l)y blocks appliiMl by hand, or l>y rollers worked by steam, water, or other mi-chanieal power ; (8.) "Fustiiin-cuttin;,^ works," that is to say, any place in whicli persons work for hire in fustian-cutting ; (9.) " Blast furnaces," that is to say, any blast furnace or other furnace or premises in or on which the process of smelting or otherwise obtain- ing any nuital from the lavs is carried on ; (10.) " Copper mills " ; (11.) " Iron mills," that is to say, any mill, forge or other premises in or on which any process is carried on for converting iron into malleable iron, steel, or tin plate, or for otherwise making or converting steel ; (12.) "Foundries," that is to say, iron foundries, copper foundries, brass foundries, and other premises or places in which the process of founding or casting any metal is carried on ; e.xcept any premises or places in which such process is carried on by not more than live persons and as subsidiary to the re])air or completion of some other work ; (13.) " Metal and india-rubber works," that is to say, any premises in wliich steam, water, or other mechanical power is used for moving machinery employed in the' manufacture of machinery, or in the manu- facture of any article of metal not being machinery, or in the manufacture of india-rubl)er or gutta-percha, or of articles made wholly or partially of india-rubbej' or gutta-]iercha ; (14.) "Paper mills" (/(), that is to say, any premises in which the manufacture of pajier is carried on ; (15.) "Glass works," that is to say, any premises in wliich the manu- facture of glass is carried on ; (16.) "Tobacco factories," that is to say, any premises in which the manufacture of tobacco is carried on ; (17.) " Letter-press printing works," that is to say, any premises in which the process of letter-press printing is carried on ; (18.) " Bookbinding works," that is to say, any premises in wliich the ])rocess of bookbinding is carried on ; (19.) Fla.v scutch mills. Part II. Non-Textile Factories and Workshops. (20.) " Hat works," that is to say, any premises in which the manufac- ture of hats or any process incidental to their manufacture is carried on ; (21.) " Eope works," tliat is to say, any premises being a ropery, rope- walk, or rope work, in whicli is carried on the laying or twisting or other process of preparing or finishing the lines, twines, cords, or ropes, and in (A) Colcji y. Dickinson. See note (c). 538 THE LAW OF MASTER AND SEHVANT. wliicli machinery luovetl by ^^teaiu, water, or other niL'ilianical power is not used for drawing' or siiinniiiL; the fibres oi" ilax, heniji, jute, or tow, aiv.l which has no internal conmiunication witli any biiiklings or pre- mises joinini; or forming ])art of a textile factory, except such conmiuni- cation as is necessary for the transmission of jjower ; (22.) *' Bakehouses,"' that is to say, any places in wliich are Ijaked liread, biscuits, or confectionery from the baking or selling of which a jjiofit is derived ; (23.) " Lace warehouses," that is to say, any premises, room, or place not included in bleaching and dyeing works as hereinbefore defined, in which persons are employed upon any manufacturing process or handi- craft in relation to lace, subsecpient to tlie making of lace upon a lace machine moved by steam, water, or other mechanical power ; (24.) "Shipbuilding yards " (A, that is to say, any jiremiscs in which any ships, boats, or vessels used in navigation are made, finished, or repaired ; (25.) " Quarries," that is to say, any place, not being a nune, in which persons work in getting slate, stone, coprolites, or other minerals ; (26.) " Pit-banks," that is to say, any place above ground adjacent to a shaft of a mine, in which place the em]doyment of women is not regu- lated by the Coal Mines Eegulation Act, 1872, or the Metalliferous Mines Regulation Act, 1872, Avhether such place does or does not form part of the mine within the meaning of those Acts. FIFTH SCHEDULE. Spkcial Exemptions. Straw plaiting. Pillow-lace making. Glove making. (i) Palmers Shiji-hiiU'lin'j Co. v. C7/'////r/r (18()9), b. 1!. 4 (^ B. 209. THE FACTORY ACT. SIXTH SCHEDULE. biil) ACTS REPEALED. Session and Chapter. 42 Geo. 3, c. 73 . . 3&4 Will. 4, c. 103 7 & 8 Vict. c. 15 . 9 & 10 Vict. c. 40 . 13 & 14 Vict. c. 54. 16 & 17 Vict. c. 104 19 & 20 Vict. c. 38 . 24 & 25 Vict. c. 117 26 & 27 Vict. c. 40 . 27 & 28 Vict. c. 48 . 29 k 30 Vict. c. 90 . 30 & 31 Vict. c. 103 30 k 31 Vict. c. 146 33 & 34 Vict, c, 62 . 34 & 35 Vict. c. 19 . Title of Act. Extent of Repeal. An Act for the preservation of; the health anil morals of ap- prentices and others eniploj'ed in cotton and other mills and cotton and other factories. An Act to regulate the labour of children and young persons in the mills and factoiies of the United Kingdom. An Act to amend the laws relat- ing to labour in factories. An Act to declaie certain rope- works not within the operation of the Factory Acts. An Act to amend the Acts relat- ing to labour in lactones. An Act further to regulate the employment of children in fac- tories. The Factory Act, 1856. An Act to place the employment of women, young persons, youths, and children in lace factories under the regulations of the Factories Acts. The Bakehouse Eegidation Act, 1S6.3. The Factory Acts Extension Act, 1864. The Sanitary Act, 1866. The Factory Acts Extension Act, 1867. The AVorkshop Eegulation Act, 1867. The Factory and "Workshop Act, 1870. An Act for exempting persons professing the Jewish religion from penalties in respect of young persons and females professing the said religion working on Sundays. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act. The whole Act, The whole Act. The whole Act. The whole Act. The whole Act. The following words (so far as unre- pealed) in section nineteen, " not al- icady under the operation of any general Act for the regidation of factories or bake- houses." The whole Act. The whole Act. The whole Act. The whole Act. 540 THE LAW OF l\rASTER AND SERVANT. fc^cssioii and t'liaiiU'r. Title of Act. 34 k 35 Vict. c. 104 Tlic Factory and "Workshop Act, ' 1871. 37 & 38 Vict. c. 44 . The Factory Act, 1874. 38 & 39 Vict. c. 55. The ruUic* Health Act, 1875. 39 & 40 Vict. c. 79 The Ehnueutary Education Act, I 1876. Extent of Repeal. The whole Act. The whole Act. The following words in section four, " ni ore than twenty," and the words " at one time," and the fol- lowing words in section ninety-one, "not already under the operation of any general Act for the regulation of factories or hakehouses. " Section eight and the following words in section forty-eight, '•the Factory Acts, 1833 to 1874, as amended by this Act, and includes the Workshop Acts, 1867 to 1871, as amended by this Act, and ". CHAPTER X. EDUCATION OF CHILDREN IN EMPLOYMENT. In the Coal Mines Regulation Act, 1872 (ss. 8 — 10), and in the Factory and Workshop Act, 1878 (ss. 23 — 20), are sections dealing with the education of children. Appended are the chief sections of the Elementary Education Act, 1870 (33 & 34 Vict. c. 75), and the amending Acts relative to the education of children in employment. Some of these Acts are, apparently, not consistent; and in Bury v. Cherryholme, L. R. 1 Ex. D. 457, the question arose which of the Acts was to be followed. In that case the facts were these : — the respondent's child was employed in a workshop at Barnsley, and attended a school pursuant to the provisions of the Workshop Regulation Act, 1867, s. 14, which enacted that every child " employed in a workshop shall attend school for at least ten hours in every week." The School Board of Barnsley made bj^e-laws, by which all children were required to attend school, " the whole time that the school shall be open for the instruction of children of the same sex, age, and class." The Exchequer Division held that the two statutes could be read together. " The result is that the School Board may determine the time during which a child employed in a workshop shall attend school, provided the tim.e fixed on is not less than ten hours a-week ; but a bye-law that a child should attend school during only nine hours in the week would be void, as being against the provisions of the Workshop Act of 18G7," Bramwell, B. The case was not argued for the respondent ; and the decision is not in harmony Avith the subsequent case of McUor v. Dcnhc.m, L, R. 4 Q. B. 542 TllK LAW OF MASTER AND SERVANT. D. 241 , decided in 1879. An intbrniation had been laid against tlie father of a boy between ten and eleven years old for neglecting to cause him to attend school as required by the bye-laws of the School Board for Oldham. The boy was employed in a cotton factory at Oklham, and was attending an efficient elementary school, pursuant to the Factory Acts. The Court relied upon the 74th section of the Elementary Education Act, 1870, which enacts that no bye-law made by a school board " shall be contrary to anything contained in any Act for regulating the education of children employed in labour." The Court decided, " 1st, the school board are not entitled to enforce their bye-laws against children be- tween the ages of ten and thirteen years, v/ho, although not obeying such bye-laws, are attending efficient elementary schools, pursuant to and otherwise fulfilling and observing the conditions of the Factory Acts ; 2nd, the Elementary Education Acts do not control the provisions of the Factory Acts, regulating the education of children employed in ac- cordance with those Acts " {c). ?>:; & 34 A'ICT. c. 75 (1reviously made. Provided that any bye-law under this section re([uiring a child between ten and thirteen years of age to attend school shall provide for the total or partial exemption of such child from the obligation to attend school if one of Her Majesty's inspectors certifies that sirch child has reached a standard of education specified in snch bye-law. Any of the following reasons shall be a reasonable excuse ; namely, (1.) That the child is under efficient instruction in some other manner : (2.) That the child has been prevented fmm attending school by sickness or any imavoidable cause : (3.) That there is no public elementary school open which the child can attend within such distance, not exceeding three miles measured according to the nearest road from the residence of such child, as the bye-laws may prescribe. The school board, not less than one month before submitting any bye-law under this section for the approval of the education department, shall deposit a printed copy of the proposed bye-laws at tlieir office for insjiection by any ratepayer, and supply a ])rinted copy thereof gratis to any ratejjayer, and shall publish a notice of such deposit. The education department before approving of any bye-laws shall be satisfied that such deposit has l)een made and notice published, and shall cause such inquiry to be made in the school district as tliey tliink requisite. Any proceeding to enforce any bye-law may be taken, and any penalty for the breach of any bye-law may be recovered, in a summary manner ; but no penalty imposed for the breach of any Ijye-law shall exceed such amount as with the costs, will amount to five shillings for each offence, and such bye-laws shall not come into operation until they have been sanctioned by her Majesty in coirncil. It shall l)e lawful for her ]\Iajesty, by order in council, to sanction the said bye-laws, and thereupon the same shall have effect asif they Avere enacted in this Act. All bye-laws sanctioned by her Majesty in council under this section shall be set out in an appendix to the annual report of the education department. 544 THK LAW OF MASTER AND SERVAKT. Khtncniiirii Kdiirdttvii Art, 1873. ;](; ct 37 VICT. c. 80. Sect. 24, sub-sect. 4. Any justice may reijuire by summons any parent or em])]()yer oi a cliikl, re([uired by a bye-law to attend school, to produce the child before a court of summary jurisdiction, and any person failing, without reasonable excuse to the satisfaction of the Court, to conqdy with such summons shall be liable to a penalty not e.xceeding twenty shillings. no & 40 VICT. c. 79 (187G). PART I. Law as to Emjiloijiacnt and EdncaticDi af Children. 4. It shall be the duty of the jiarent of evei'y child to cause such child to receive efficient elementary instruction in reading, writing, and arithmetic, and if such parent fail to perform such duty, he shaU. be liable to such orders and penalties as are provided by this Act. 5. A person shall not, after the commencement of this Act, take into his employment (except as hereinafter in this Act mentioned) any child— (1.) Who is nnder the age of ten years ; or, (2.) Who, being of the age of ten years or upwards, has not obtaineil .such certificate either of his proficiency in reading, writing, and elementary arithmetic, or of previoxis due attendance at a certified efiicient scho(d, as is in this Act in that behalf mentioned, unless such child, being of the age of ten years or upwards, is employed, and is attending school in accordance with the ])rovisions of the Factory Acts, or of any bye-law of the local authority (hereinafter mentioned) made imder section seventy-four of " The Elementary Education Act, 1870," as amended by " The Elementary Education Act, 1873," and this Act, and sanctioned by the education department. 6. Every person who takes a child into his employment in contra- vention of this Act shall be liable, on summary con\dction, to a penalty not exceeding forty shillings. 7. The ]irovisions of this Act respecting the employment of children shall be enforced — (1.) In a school district witliiii tlie jnriMliclion of a scliool board by that board ; and (2.) In every other school district by a committee (in tlii< Act referred toas a school atti-ndance coiumitlee) ajipoiuted annually, if it EDUCATION OF CHILDREN TN EMPLOYMENT. 545 is a borou^'h, Ly the council of tlie liorough, and if it is a Ijarish, by the guardians of the union comprising such parish. A school attendance committee under this section maj'' consist of not less than six nor more than twelve members of the council or guardians appointing tlie coumiittee, so, liowever, that, in the case of a committee appointed by guardians, one-third at least shall consist of ex officio guardians, if there are any, and sufficient ex officio guardians. Every such school board and school attendance committee (in this Act referred to as the local authority) shall, as soon as may be, publish the provisions of this Act within their jurisdiction in such a manner as they think best calculated for making those provisions known. Provided that it shall be the duty of the inspectors and sub-inspectors acting under the Acts regulating factories, workshops, and mines resjjeotively, and not of the local authority, to enforce the observance by the employers of children in such factories, workshops, and mines, of the provisions of this Act respecting the employment of children ; but it shall be the duty of the local authority to assist the said inspector and sub-ins2iectors in the performance of their dutj^ by information and otherwise. It shall be the duty of such local authority to report to the educatio n department any infraction of the provisions of section seven of "The Elementary Education Act, 1870," in any public elementary scliool within their district which may come to their knowledge, and also to forward to the education department any complaint which they nuiy receive of the infraction of those provisions. 8. [Refers to sections [in Workshop or Factory Acts, repealed by "Factory and Workshop Act, 1878," sect. 107] (c). 9. A person shall not be deemed to have taken any child into his employment contrary to the provisions of this Act, if it is i^roved to the satisfaction of the court having cognizance of the case either — (1.) That during the employment there is not Avithin two miles, measured according to the nearest road, from the residence of such chiLl any public elementary school open Avliich tlie child can attend ; or (2.) Tliat such employment, by reason of being during the school holidays, or during the hours during which the school is not open, or otherwise, does not interfere witli the efficient elementary instruction of such child, and that the child obtains such instruction bj^ regular attendance for full time at a certified ethcient school or in some other equally efficient manner ; or (c) Saundn-s v. Cmvford (1882), L. for not educating childron between the R. 9 Q. F). D. 613. (In conscquoiice ngc of thirteu and fourteen not having of repeal of Acts referred to in this full time employment.) section, no power to punish parents K N 546 THE LAW OF MASTER AND SERVANT. (3.) Tlmt the eiuployuu-ut is cxeiupteJ l)y the notice of thi; local authority hereinafter next mentioned ; (that is to say), The local authority may, if it thinks fit, issue a notic». exempting irom the prohibitions antl restrictions of this Act the employment of cliihlren above the age of eight years, for the necessary operations of liusbandry and the ingathering of crops, for the period to be named in such notice, provided that the period or jieriods so named by any such local authority shall not exceed in the M-hole six weeks between the first day of January and the 31st day of December in any year. The local authority shall cause a copy of every notice so issued to be sent to the education department and to the overseers of every parish within its jurisdiction, and the overseers shall cause such notice to be fixed to the door of all churches and chapels in the parish, and the local authority may further ae deemed for the purposes of this Act to take such child into his eiuployiuent. Elementary Education Act, 1880. 43 & 44 VICT. C. 23. 4. Every person who takes into his employment a child of the age of ten and under the age of thirteen years, resident in a school district, hefore that child has obtained a certificate of having reached the standard of education fixed Ijy a bye-law in force in the district for the total or partial exemption of children of the like age from the obligation to attend school, shall be deemed to take such child into his employment in contravention of the Elementary Education Act of 1876, and shall be liable to a penalty accordingly. Proceedings may, in the tliscretion of the local authority or person instituting the same, be taken for piinishing the contravention of a bye- law, notwithstanding that the act or neglect or default alleged as such contravention constitutes habitual neglect to provide efficient elementary education for a child within the meaning of section eleven of the Elementary Education Act, 1876 {d) : Provided that nothing in this section shall prevent an employer from employing any child who is employed by him or by any other person at the time of the passing of this Act, and who attends school in accordance with the provisions of the Factory and Workshop Act, 1878. (d) That is, rliililrpii habitually See, however, Saunders v. Crairfordy eglected by parents, habitually wan- note (c). dcriucj, or consorting ^vith criminals. CHAPTER XL SEAMEN. Seamen have been the subject of many special acts (a). The hxw in force as to them is, however, chiefly contained in the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), the principal sections of which are here set out. 17 & 18 YICT. c. 104. An Act to amend and consolidate the Acts relative to Merchant Shipping^ PART III. Masters and Seamen. Sect. 109 states that, " The whole of the third part of this Act shall apply to all sea-goiiig ships registered in tlie United Kingdom, and also to all ships registered in any British possession and employed in trading or going between any place in the United Kingdom and any place or places not situate in the possession in which such ships are regis- tered, and to the owners, masters, and crews of such ships respectively, wherever the same may l)e " (?>). Sects. 110 — 121 provide for the constitution of local marine boards, the ([ualification of voters for members of such lioards, and preparation of list of voters. Sects. 122 —130 provide for the establishment df shipping offices (by the 25 & 26 Vict. c. 63, s. 15, called ]\Iercantile Marine Offices) and the appointment of shipping masters (called superintendents). * 124. It shall be the general business of shipjiing masters appointed as aforesaid — {a) See tlic Minerva, 1 llag. Ad. rmployocl in fisliins on the coasts of 347, for tlie histoiy of this legislation. the Uiiitfd Kingdom; (2) Seagoing Tiie otliercliii't' .statutes in i'orce are 18 sliijis lich)n.L;iiig to any of the three kVJ Vict. c. 91 ; 25 & 26 Viet. c. G3 ; general Lightlumse IJoards ; (3) Sca- 30 k 31 Viet. c. 121; 34 & 35 Vict. c. going sliips being ))leasure-yachts." 110 ; 35 & 36 Vict. c. 73 ; 36 & 37 Seetions 136, 143, 14.5, 147, 149,150, Vict. c. 85 ; 39 & 40 Vict. c. 80 ; 43 161, 152, 153, ]54, 15.5, 157, 158, & 44 Viet. c. 16. 161, 162, 166, 170, 171, 231, 2.56, (//) Sec. 13 of 25 k 26 Vict. c. G3 279, 280, 281, 282, 283, 284, 285, extends the operation of the tliird "IV-Cy, 287, do not aiiply to the three jiart of the Act of 1854 to "(1) above classes of ships. See Cope v. llegistered seagoing shii'S exclusively Uolicrly {libi), 27 L. J. Ch. 600. SEAMKN'. 519 To afford facilities for eng;iging seamen liy keeping registries of tlicir names and characters ; To superintend and facilitate their engagement and discharge in manner hereinafter mentioned ; To jnovide means for securing the presence on Ijoard at tlie jjroper times of men who are so engaged ; To facilitate the making of apprenticeships to the sea service ; To perform such other duties relating to merchant seamen and merchant ships as are hereby or may hereafter under the powers herein contained be committed to tliem. Sects. 131 — 140 provide for certificates to be given after examinations for master and mates ; and there are similar provisions in 25 & 2U A'ict. c. 63, ss. 5 — 12, as to certificates for engineers. 136. No foreign-going ship or home trade passenger ship shall go to sea from any port in the United Kingdom unless the master thereof, and in the case of a foreign-going ship the first and second mates or only mate (as the case may be), and in the case of a home trade passenger ship the first or only mate (as the case may be), have obtained and possess valid certiticates, either of competency or service appropriate to their several stations in such ship, or of higher grade ; and no such ship, if of one hundred tons burden or upwards, shall go to sea as aforesaid, unless at least one officer besides the master has obtained and possesses a valid certificate apj)ropriate to the grade of only mate therein or to a higher grade ; and every person who, having been engaged to serve as master or as first or second or only mate of any foreign-going ship, or as master or first or only mate of a home trade passenger ship, goes to sea as afore- said as such master or mate without being at the time entitled to and possessed of such a certificate as hereinbefore required, or who employs any person as master, or first, second, or only mate of any foreign-going sliip, or as master or first or only mate of a home trade passenger ship, without ascertaining that he is at the time entitled to and possessed of such, certificate, shall for each such oftence incur a penalty not exceeding fifty pounds." Apprentkeshijjs to the Sea Service. 141. All shipping masters appointed under this Act shall, if applied to for the purpose, give to any board of guardians, overseers, or other persons desirous of apprenticing boys to the sea service, and to masters and owners of ships reijuiring apprentices, such assistance as is in their power for facilitating the making of such a2)prenticeshii:)S, and may receive from persons availing themselves of such assistance such fees as may be determined in that behalf by the Board of Trade, with the con- currence, so far as relates to pauper apprentices in England, of the Poor Law Board in England, and so far as relates to pauper apprentices in Ireland, of the Poor Law Commissioners in Ireland. 142. In the case of every boy bound apprentice to the sea service by 550 THE LAW OF MASTER AND SERVANT. any guardians or overseers of the poor, or other persons having the authority of guardians of the poor, the indentures shall he executed by the boy and the person to whom he is bound in the presence of and shall be attested by two justices of the peace, who shall ascertain that the boy has consented to be bound, and has attained tlie age of twelve years, and is of sufficient healtli and strength, and tliut the master to whom the boy is to be bound is a proper person for the purpose (f). 143. All indentures of apj^renticeshii) to the sea service shall be exempt from stamp duty {- for wages, but not for the penalty (/7/rtrco/oY (1824), 1 Hag. 248. (On a contained in the indenture.) contractto"V.-D. Land and elsewhere {g) See Boyd's Merchant Shipping back to London," forfeiture of wages Laws, p. 131. not incurred by refusal of seamen to {h) hy 36 & 37 Yict. c. 85, s. 7, work during voyage to Kotterdam.) the agreement may state "the Frazer v. Hatton (1857), 2 C. B. niaxiniuni period of the voyage or N. S. 512. (Articles which required engagement, and the places or parts ■ the plaintiff, a seaman, to go "from of the world (if any) to which the Liverpool to the We.st Coast of voyage or engagement is not to ex- Africa and back, or for a term not to tend." As to agreements with fisher- exceed three j'ears," not invalid men, 36 & 37 Vict. c. S:^, s. 8. under 13 & 14 Vict. c. 93 for " The words ' nature of the voyage' being in tlie alternative; a pro- must have such a rational construe- vision, "the crew, if required, to be tion as to answer the main and lead- transferred to any other ship in the ing pinpose for which they were same employ," not invalid.) framed, namely, to give the mariner (/) In Annie Ulicricood (1S65), 12 a fair intimation of the nature of the L. '1'. N. S. 582, the Court refused to service in which he was about to iuforce against a seaman a stipulation engage himself when he signed the that he should be paid in United ship's articles." J)r. Lushuigton in States currency, or its equivalent, the Westmoreland (1841), in 1 "\V. 552 THE LAW OF MASTER AND SERVANT. (7.) Any regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful punishments for misconduct, -which have heen sanctioned by the Board of Trade as regulations proper to be adopted, and which the parties agree to adopt : (/.) And every such agveenieut shall be so framed as to admit of stipulations, to be ado2)ted at the will of the master and seanum in each case, as to advance and allotment of wages, and may contain any other stipulations which are not contrary to law : Provided that if the master of any ship belonging to any British possession has an agreement with his crew made in due form according to the law of the possession to which such ship belongs or in which her crew were engaged, and engages single seamen in the United Kingdom, such seamen may sign the agreement so made, and it shall not be necessary for them to sign an agreement in the form sanctioned by the Board of Trade (/). 150. In the case of all foreign-going ships, in whate^•er part of Her ]\lajesty's dominions the same are registered, the following rules shall be observed with respect to agreements ; (that is to say), (1.) Every agreement made in the United Kingdom (except in such cases of agreements with substitutes as are hereinafter speci- ally provided for) shall be signed by each seaman in the presence of a shipping master : (2.) Such shipping master shall cause the agreement to be read over and explained to each seaman, or otherwise ascertain that each seaman understands the same before he signs it, and shall attest each signature : (3.) When the crew is tirst engaged the agreement shall be signed in duplicate, and one part shall be retained by the shipping master, and the other part shall contain a special place or form for the descriptions and signatures of sub.stitutes or persons engaged subsetiuently to the first departure of the ship, and shall be delivered to the master : (4.) In the case of substitutes engaged in the place of seamen who have duly signed the agreement, and whose services are lost within twenty-four hours of the ship's putting to sea by death, desertion, or other unforeseen cause, the engagement shall, when practicable, be made before some shipping master duly appointed in the manner hereinbefore specified ; and Avhenever such last-mentioned engagement cannot be so made, the master shall, before the ship puts to sea, if prac- ticable, and if not, as soon afterwards as possible, cause the a'Teement to be read over and explained tu the seamen ; and (k) See IJoyd's Merchant Sliipiiing to obligation of sliipowner to crew Laws, p. 137, ami 43 & 41 Vict. c. 16, to use reasonable cllorts to secure ,v;_ :j. seawortliineb.s. (I) 39 k 40 Vict. c. 80, s. 5, as SEAMEN. 553 the seamen shall thereupon sign the same in the presence uf a witness, who shall attest their signatures. 1G5. Any seaman may bring forward evidence to prove the contents of any agreement or otherwise to support his case, without producing or giving notice to produce the agreement or any copy thereof. 166. The master shall at the commencement of every voyage or engagement cause a legible copy of the agreement (omitting the signa- tures) to be placed or posted up in such part of the ship as to be accessiljle to the crew, and in default shall for each oifence incur a penalty not exceeding live pounds. 167. Any seaman who has signed an agreement, and is afterwards discharged before the commencement of the voyage, or before one month's wages are earned, without fault on his part justifying such dis- charge (7?i) and without his ccmsent, shall be entitled to receive from the master or owner, in addition to any wages he may have earned, due compensation for the damage thereby caused to him, not exceeding one month's wages, and may, on adducing such evidence as the Court hearing the case deems satisfactory of his having been so improperly discharged as aforesaid, recover such compensation as if it were wages duly earned (?()• Allotment of Wages. 168. All stipulations for the allotment of any part of the wages of a seaman during his absence which are made at the commencement of the voyage shall be inserted in the agreement, and shall state the amounts and times of the payments to be made ; and all allotment notes shall be in forms sanctioned by the Board of Trade (o). 169. The wife {})), or the father or mother, or the grandfather or grand- mother, or any child or grandchild, or any brother or sister of any seaman in whose favour an allotment ncjte of part of the wages of such {m) See Iluhinett v. The Exdcr Q)) Meiklcrcid v. West (1876), L. (1799), 2 C. Hob. 263, as to drmikcii- E. 1 Q. B. D. 428 ; 45 L. J. M. C. ness, neglect of duty, and disobe- 91 ; 34 L. T. 353 ; 24 W. K. 713. dience, being grounds of discharge. (Appellant, registered owner of a See as to forfeiture of wages, p. 5(50. sliip, entered into a charter party with (?i) Sec. 188. H. by which he demised a ship to H. (o) See Boyd's Merchant Shipping for a stipnhited i)eriod, and parted Laws, 155. This does not atlect with all control over it. H. took advance notes (43 & 44 Yict. c. 16, possession of tlie ship, and appointed s. 2 (3). As to payment of allotment a master, who engaged the respond- notes, McKunc v. Joynson (1858), 5 ent's husband, and gave her an allot- C. B. N. S. 218, where (Willes, J., dis- meut note, reijuiring the charterer senting) it was held that a person wlio to pay her £6 out of her husband's had given for an advance note £3 15.s'. wages. H. paid several instalments, in cash, and £2 15s. in clothes, was but became insolvent : heUl tliat the entitled to sue on a note "to i)ay to appellant, though registered owner, any person who shall advance to II. was not liable to pay the arrears due H. on this agreement the sum of £6." under the note.) 554 THE LAW OF MASTER AND SERVANT. seaman is niailo, may, \nik'ss the seaman is sluiwn in manner hereinafter mentioned to have forfeited or ceased to he entitled to the wages out ot" Avliich the aUotment is to he paid, and subject, as to the wife, to the provision hereinafter contained, sue for and recover the sums allotted by the note when and as the same are made payable, Avith costs, from the oAvner or any agent who has authorized the drawing of the note, either in the County Court or in the summary manner in which seamen are by this Act enabled to sue for and recover wages not exceeding fifty pounds ; and in any such proceeding it shall be suthcient for the claimant to prove that he or she is the person mentioned in the note, and that the note was given by the owner or by the master or some other authorized agent ; and the seaman shall be presumed to be duly earning his wages, unless the contrary is shown to the satisfaction of the Court, eitlier by the otiiciul statement of the change in the crew caused by his absence made and signed by the master, as by this Act is rei^uired, or by a duly certified copy of some entry in the official log book to the effect that he has left the ship, or by a credible letter from the master of the ship to tlie same effect, or by such other evidence, of whatever description, as the Court in its absolute discretion considers sufficient to show satisfactorily that the seaman has ceased to be entitled to the wages out of which the allotment is to be paid : Pi-ovided that the wife of any seaman who deserts her children, or so misconducts herself as to be undeserving of support from her husband, shall thereupon forfeit all right to further payments of any allotment of his wages which has been made in her favour. Discluirgc and Payment of Wages. Sections 170 — 17G deal with the discharge of seamen and payment of wages. Discharge of seamen in the United Kingdom from foreign-going ships is to be made, and such seamen are to receive their wages, in the 2)resence of a shijiping master (sect. 170). Every master before paying off or discharging any seaman shall deliver a full and true account of wages and all deductions (sect. 171, and 43 ifc 44 Vict. c. 116, s. 4). Upon the discharge of any seaman, or uiiou i)ayment of his wages, the master shall sign and give a certificate of discharge in a form sanctioned by the Board of Trade (sect. 172 ; see also 43 & 44 Vict. c. 16, s. 4). Sections 177 to 180 deal with the remittance of wages of seamen and apprentices to their relatives or other persons by means of money orders, and with the establishment of savings lianks for seamen. Legal 1 lights to 11' ages. 181. A seaman's right to wages and ]iro\isions shall be taken to com- mence either at the time at which he commences work or at the time specified in the agreement for his conimencement of worlc or jiresence on board, whichever first happens. 182. No seaman shall by any agreement forfeit his lien upon tlie shiji, SEAMEN. bbi) or be deprived of any reraedj' for the recovery of his wages to whitdi lie would olherwise have been entitled ; and eA'ery stii^ulatiou in any agree- ment inconsistent with any provision of this Act, and every stipulation by which any seaman consents to abandon his right to Avages in the avse of the loss of the ship, or to abandon any right which he may have or obtain in the nature of salvage, shall be wholly inoperative (r). 183. No right to wages shall be dependent on the earning of freight ; and every seaman and apprentice who Avould be entitled to dt-mand and recover any wages if the shii) in which he has served had earned freight, shall, subject to all other rules of law and conditions applicable to the case, be entitled to claim and recover the same, notwithstanding that freight has not been earned ; but in all cases of wreck or loss of the ship, ]iroof that he has not exerted himself to the utmost to save the ship, cargo, and stores shall bar his claim. 18(5. No seaman or apprentice shall be entitled to wages for any period during which he unlawfully refuses or neglects to work when required, whether before or after the time fixed by the agreement for his beginning work, nor, unless the Court hearing the case otherwise directs, for any period during which he is lawfully imprisoned for any offence committed by him. 187. The master or owner of every ship shall pay to every seaman (.s) his wages within the respective periods following ; (that is to say), in the case of a home trade ship within two days after the termination of the agreement or at the time when such seaman is discharged, whichever first hajipens ; and in the case of all other ships (except ships employed in the Southern Whale Fishery or on other voyages for which seamen by the terms of their agreement are wholly compensated by shares in the profits of the adventure) within three days after the cargo has been delivered, or within five days after the seaman's discharge, whichever first happens ; and in all cases the seaman shall at the time of his dis- charge Ije entitled to be paid on account a sum equal to one-fourth part of the balance due to him ; and every master or owner who neglects or refuses to make payment in manner aforesaid, without sulhcient cause, shall pay to the seaman a sum not exceeding the amount of two days' pay for each of the days, not exceeding ten daj's, during which payment is delayed beyond the respective j)eriods aforesaid, and such sum shall be recoverable as wages. (r) See s. 18 of 25 & 26 Yict. c. The Ganges (1869), L. R. 2 A. & E. 63. Tliis section is aimed against 370 ; see as to liens having priority assignment of riglits after as over seameus, the L'liii (1S82), 51 L. well as before salvage services J. P. &. A. 77. rendered. The Fiosarw (1876), L. (s) Master within this section, R. 2 P. D. 41; 46 L. J. A. 52. Pruiccus Helena (1861), Lush. 191. This section does not fetter the dis- The Fleur dc Lis (1865), L. E. 1 A. cretiou of the Court as to such agree- & E. 49. (A master ought to furnish ments ; they are in the same position accounts before bringing liis suit for as they were before any legislation. wages and disbursements.) 556 THE LAW OF MASTER AND SERVANT. Mode of liecoverimj JFages. 188. Any seaman or apprentice, or any person duly autliorizecl on Lis behalf, may sue in a summary manner before any two justices of the peace acting in or near to the place at which the service has terminated, or at whicli the seaman or apprentice has been discharged, or at whicli any person upon whom the claim is made is or resides, or in Scotland eitliLT before any such justices or before the sheriff of the county within wliich any such place is situated, for any amount of wages due to such seaman or apprentice not exceeding tifty pounds over and above the costs of any proceeding for tlie recovery thereof, so soon as the same becomes payable ; and every order made by such justices or sheriff in the matter shall be final. 189. No suit (0 or proceeding for the recovery of wages under the sum of fifty pounds shall be instituted Ijy or on behalf of any seaman or apprentice in any Court of Admiralty or Vice-Admiralty, or in the Court of Session in Scotland, or in any superior court of record in Her j\Iajesty's dominions, unless the owner of the ship is adjudged bankrupt or declared insolvent, or unless the ship is under arrest or is sold by the authority of any such Court as aforesaid, or unless any justices acting under the authority of this Act refer the case to be adjudged by such Co\irt, or unless neither the owner nor master is or resides («) within twenty miles of the place where the seaman or apprentice is discharged or put ashore. 190. No seaman who is engaged for a voyage or engagement which is to terminate in the United Kingdom shall be entitled to sue in any court abroad for wages, unless he is discharged with such sanction as herein retpiired and with the Avritten consent of the master, or proves such ill-usage on the part of the master or by his authority as to warrant reasonable apprehension of danger to the life of such seaman if he were to remain on board ; but if any seaman on his return to the United Kingdom proves that the master or owner has been guilty of any conduct or default which but for this enactment would have entitled the .seaman to sue for wages before the termination of the voyage or engage- ment, he shall be entitled to recover in addition to his wages such compensation not exceeding twenty pounds as the Court hearing the case thinks reasonable. 191. Every master of a ship shall, so far as the case permits, have the same rights, liens, and remedies for the recovery of his wages wliich l)y this Act or by any law or custom any seaman, not being a master, has for the recovery of his wages (x), and if in any proceeding in any Court (0 See 24 Vict. c. 10, s. 10, and («) 'Y\\q Blakcnnj. (Place of occa- 31 & 32 Vict. c. 71, ss. 3 k 9. This sional business not a residence witliiu section applies to master. The meaning of the section.) lilakcncy (185'J), Swa. 428. (x) See as to this section the SEAMEN. 557 of Admiralty or Vice-Admiralty touchiiii,' the claim of a master to wages any right of set-off ((/) or counter-claim is set up, it shall be lawful for sucli Court to enter into and adjudicate upon all (piestions and to settle all accounts then arising or outstanding and unsettled between the jiarties to the proceeding, and to direct payment of any balance which is found to be due. Sections 192, 1!);3 deal with relief to seamen's families out of pour rates. Sections 194 — 204 deal with the wages and etieots of deceased seamen. IMasters are to take charge of or sell the elfects of deceased seamen which are on board, and enter the same and a statenient of the wages due and deductions, if any, in the olhcial log (sect. 194). Such effects and wages are to be paid either to a consul or to a shipping master with full accounts (sect. 195). Sections 205 — 213 deal with leaving seamen abroad. On discharge of seamen abroad by sale of ship or otherwise, and whenever the service of any seaman or apprentice belonging to a British ship terminates at anj^ place out of Her Majesty's dominions, the master shall give to any such seaman or apprentice a certificate of discharge, and the seaman or apprentice is to be sent home at the expense of the owner (sect. 205). Forcing seamen on shore is made a misdemeanor (sect. 206). Distressed Seamen found abroad may be relieved and sent home at the public expense (sect. 211) (z), and masters of British ships are compelled to take them (sect. 212). Sections •214— 220 deal with volunteering into the Xavy. "Any seaman may leave his ship forthwith for the purpose of entering into the naval service of Her Majesty, and such leaving his ship shall not be deemed a desertion therefrom, and shall not render him liable to any punishment or forfeiture whatever" (sect. 214). Provisions, Health, and Accommodation. Sections 221 — 231 deal with provisions, health, and accommodation 221. A.n\ three or more of the crew of any British ship may complain to any officer in command of any of Her Majesty's ships, or any British consular officer, or any shipping master, or any chief officer of customs. Rajah of Cochin (1859), S\v. 473. of a ship refused to pay waives due to At Common Law a Tiiaster had no master, unless credited with certain lien for wages. Smith v. Plummcr salvage money received by master (1818), 1 B. & Aid. 574 ; Bristoiv under an award, and kept by him for V. Whitinore (1861), 31 L. J. C'h. his share ; the master refused to 467. This section extends to masters account for a subsequent voyage of foreign ships. Milford (1858), except on condition ot a settlement Swa. 362. for former voyage without reference to (y) The Darinrj (1868), L. R. 2 A. salvage money ; payment of wages & E.260. (A counterclaim by owner improperly withheld.) of cargo will not be entertained in a (~) 18 i*c 19 Vict. c. 91, .•:. 16, and suit under this section.) The Princess 25 k 26 Vict. c. 63, s. 22. Helena (1S61), Lush. 190. (Owners 658 THE LAW OF MASTER AND SEIUANT. that the |)rovisioiis or water for the nse of the crew are at any time of bad ([uality, unfit for use, or deficient in quantity ; and such olficer may thereupon examine the said provisions or water, or cause them to be examined, &c. 222. If the officer to whom any such comjihvint as last aforesaid is made ' certifies in such statement as aforesaid that there was no reasonable ground for such complaint, each of the parties so complaining shall be liable to forfeit to the owner out of his wages a sum not exceeding one week's wages. 223. In the following cases ; (that is to say), (1.) If during a voyage the allowance of any of the provisions which any seaman has by his agreement stipulated for is reduced (except in accordance with any regulations for re- duction by way of punishment contained in the agreement, and also except for any time during which such seaman wilfully and without sufficient cause refuses or neglects to perform his duty, or is lawfully under confinement for mis- conduct, either on board or on shore) ; (2.) If it is shoAvn that any of such provisions are or have during the voyage been bad in quality and unfit for use ; The seaman shall receive by way of compensation («) for such reduction or bad quality, according to the time of its continuance, tlie following sums, to be paid to him in addition to and to be recoverable as wages ; (that is to say), (1.) If his allowance is reduced by any quantity not exceeding one- third of the quantity specified in the agreement, a sum not exceeding fourpence a day ; (2.) If his allowance is reduced by more than one-third of such quantity, eightpence a day ; (3.) In respect of such bad quality as aforesaid, a sum not exceeding one shilling a day : But if it is sliown to the satisfaction of tlie Court before which tlie case is tried that any provisions the allowance of which has been reduced could not be procured or supplied in ])roper quantities, and that proper and equivalent substitutes were su]iYjlied in lieu thereof, the Court shall take such circumstances into consideration, and shall modify or refuse compensation as the justice of the case may require. Every master shall keep on board jjrojier weights and measures for the purpose of determining the ([uantities of provisions and articles served out (sect. 225). The Board of Trade and local marine boards may appoint inspectors of medicines to see that ships are properly {a) Tlie Josrphinc (1856). 1 Swa. S/rrl (18r)4), 3 E. & I!. 402; 2-3 L. 1.^2. (Crew kept on sliort allowance! J. (). B. 121 ; sne also 34 k 35 Vict. oAvinp; to unexpected lenj^'tli of c. 110, s. 7, and 3G k 37 Vict. c. 85, voynf^e, entitled to compensation.) s. 0. As to Common Law right, Couch v. SEAMEN. 559 provided (sect. 226). Section 228 provides for expenses of medical attendance and .subsistence in case of illness, and of burial in case of death, being defrayed by owner (h). If any seaman or apprentice wliilston board a ship states to the master that he desires to make complaint to a justice or consular officer or naval officer he is to be allowed to '^d ashore (sect. 232). Protection uf Semmn from Imposition. Sections 233 — 238 are for the protection of seamen from imposition (c). 233. No wa,i,'es due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any Court ; and every payment of wages to seaman or apprentice shall be valid in law, notwitlistanding any previous sale or assignment of such wages, or of any attachment incumbrance, or arrestment thereon ; and no assignment or sjvle of such wages or of salvage made prior to the accruing thereof shall bind the party making the same ; and no power of attorney or authority for the receipt of any such wages or salvage shall be irrevocable. 234. No debt exceeding in amount five shillings, incurred by any sea- man after he has engaged to serve, shall be recoverable until the service agreed for is concluded. Discipline. Sections 239—259 deal with discipline {d). 239. Any master of or any seaman or apprentice belonging to any British ship who by wilful breach of duty, or by neglect of duty, or by reason of drunkenness, does any act tending to the immediate loss, de- struction, or serious damage of such ship, or tending (c) immediately to endanger the life or limb of any person belonging to or on board of such ship, or who by wilful breach of duty, or by neglect of duty, or by reason of drunkenness, refuses or omits to do any lawful act proper and re{[uisite to be done by him for preserving such ship from immediate loss, destruction, or serious damage, or for preserving any person belonging to or on board of such ship from immediate danger to life or limb, shall for everv such offence be deemed guilty of a misdemeanour. 240. Any Court having Admiralty jurisdiction in any of Her Majesty's dominions may, upon application by the owoier of any ship being within the jurisdiction of such Court, or by the part owner or consignee, or by the agent of the owner, or by any certificated mate, or by one-third or (b) See Orqan v. Brodir (1854), 10 Lcary v. Lloyd (1860), 6 .lur. N. S. Ex. 449 ; 24' L. J. Ex. 70. As to 1246j 29 L. J. M. C. 194 ; 3 E. i this section, Secretary of Board of E. 178. Trade v. SundJwIm, 4 Asp. 196. ('') B'^iJ. v. Gardner (1859), 1 F. (<■•) 43 & 44 Vict. c. 16. & F. 669. (Act " tending? to, &c," {d) The sections relating to disci- need not be followed by actual pline apply to British ships only. loss.) 5r)0 THE LAW OF MASTER AND SERVANT. mort' cf tlie crew of such ship, and upon proof on oath to the satisfaction of such Court that the (/) removal of the master of such ship is neces- sary, rcnuive him atconliiigly ; and may also, with the consent of the owner or his agent, or the consignee of the ship, or if there is no owner or agent of the owner or consignee of the slii]) within tlie jurisdiction of the Court, then without such consent, api)oint a new master in his stead ; and may also make such order, and nuiy recjuirc such security in respect of costs in the matter, as it thinks tit. The Board of Trade nuiy cancel or suspend certificates of master or mate in certain specified cases (sect. 242). 243. Whenever any seaman who has been lawfully eugaged or any apprentice to the sea service commits any of the following [otfences he shall be liable to lie punished summarily as follows ; (that is to say), (1.) Fordesertion (g) he shall Ije liable [to imprisonmeut for any period (/) The RoijaUst (1863), 32 L. J. P. 105. (An attempt to defraud by master justifies removal. The power under this section is not contiiied to cases mentioned in s. 239. See 25 it 26 Vict. c. 63, s. 23.) (f/) 43 & 44 A'ict. c. 16, s. 10. Desertion' and For.FEirrKE. — Limland v. Stcplicn (1801), 3 Esp. 265. (No desertion or forfeiture of wages where a sailor cannot remain without personal danger from the violence of master.) The Pcnrl 11804), 5 C. Eob. 224. (Wages for a run to Hull forfeited by leaving sliip in the Hnmber before arrival at Hull, though master consented. ) Dcla- maincr v. JFlnfcriucjhnm (1815), 4 Camp. 186. (The whole wages due when vessel detained abroad by em- bargo, and when freight was earned, thougli plaintiff im]nisonfd on sliore during embargo. "> CantiUa (1822), 1 Hag. Ad. 59. (No forfeiture for leav- inc vessel if provisions insufficient.) The Buhnn-{\9,-l'i), 1 Hag. 163. (For- feiture of wages of a sailor, wlio, lieing allowed to perfi, witli oi' witliout lianl laljoni'] Hi), and also to forfeit all or any part of the clotlies and effects liu leaves on boanl, and all or any part of the wages or eniohi- ments which he has then earned, and also, if such desertion takes place abroad, at tlie discretion of tlie Court, to foi'l'eit all or any part of tin; wages or emoluments he may earn in any other ship in which he may he employed until his next return to the United Kingdom, and to satisfy any excess of wages paid by the master or owner of the ship from which he deserts to any substitute engaged in his place at a higher rate of wages than the rate stipulated to be paid to him : (2.) For neglecting or refusing, without reasonable cause, to join his ship, or to jn'oceed to sea in his ship, or for absence with- out leav^e at any time within twenty-fcjur hours of the ship's sailing from any port either at the commencement or during the progress of any voyage, or for absence at any time witli- out leave and without sulHcient reason from his ship or from his duty not amounting to desertion or not treated as such by the master, he shall be liable [to imprisonment for any period not exceeding ten weeks, with or without hard labour, and also, at the discretion of the Court] (i), to forfeit out of his wages a sum not exceeding the amount of two days' pay, and in addition for every twentj^-four hours of absence either a sum not exceeding six days' pay, or any expenses which have been properly incurred in hiring a substitute : (3.) For quitting the ship without leave after her arrival at her port of delivery and before she is placed in security, he shall be liable to forfeit out of his wages a sum not exceeding one month's pay : ("4.) For wilful disobedience to any lawful command he shall be liable to imprisonment for any period not exceeding four weeks, with or without hard lal)0ur, and also, at the discre- tion of the Court, to forfeit out of his wages a sum not exceeding two days' pay : (5.) For continued wilful disobedience to lawful commands, or con- tinued wilful neglect of duty, he shall be liable to imprison- ment for any period not exceeding twelve weeks, with or without hard labour, and also, at the discretion of the Court, to forfeit for every twenty-four hours' continuance of such disobedience or neglect either a sum not exceeding six days' pay, or any expenses which have been properly incurred in hiring a substitute : Smith, J.J., that he was entitled to 16, s. 12. receive wages iu.1 to time of being lut't (0 Itcpcaled by 43 & 44 Yict. c. behind ; Brett, J., dissenting.) 16, s. 12. (A) Repealed by 43 & 44^ Viet. c. 502 THE LAM' OF IMASTER AND SERVANT. (6.) For assuiiltiiiLT any master oi" mate lie shall he liable to im- prisonment for any period not exceeding twelve weeks, with or without hard lahour : (7.) For combining with any other or others of the crew to disobey lawful commands, or to neglect duty, or to impede the navigation of the ship or the progress of the voyage, he shall be liable to imprisonment for any period not exceeding twelve weeks, with or without hard labour : (8.) F(U- wilfully damaging the ship, or embezzling or wilfully damaging uny (jf her stores or cargo, he shall be liable to forfeit out of his wages a sum eipial in amount to the loss thereby sustained, and also, at the discretion of the Court, to imprisonment for any period not exceeding twelve weeks, with or without hard labour : (9.) For any act of smuggling of which he is convicted, and whereby loss or damage is occasioned to the master or owner, he shall be liable to pay to such master or owner such a sum as is sufiicient to reimburse the master or owner for such loss or damage ; and the whole or a proportionate part of his wages maybe retained in satisfaction or on account of such liability, without prejuilice to any further remedy. Entry of offences enumerated in sect. 243 shall be made in the official log-book, and the offender shall be furnished with a copy of the entry, or it shall be read over to him, and his reply, if any, shall also be entered (sect. 244). The master, or mate, or o^ner may apprehend ort where there is a local marine board the local marine board, and at other ports in tlie United Kingdom the Board of Trade, may appoint a medical inspector of seamen. (2.) Such medical inspector of seamen shall, on application by the owner or master of any ship, examine any seaman api)lying for employment in such ship, and shall give to the superintendent of the mercantile marine oftice a report under his hand stating whether such seaman is in a fit state for duty at sea, &c. 34 & 35 VICT. ('. no (1871). An Art to amend the Merchant Shijijnnn Acts. Masters and Seamen (Part HI. of "Merchant Shipjnng Act, 1854"). Sect. 7. Whenever in any proceeding against any seaman or apprentice belonging to any .shi]i for desertion, or for neglecting or refusing to join or to ])roceed to sea in his ship, or for being absent from or quitting the same without leave, it is allegeil by one-fourth of the seamen belonging to such ship, or, if the number of such seamen excee0 & AO VICT. c. 80 (187G). A71 Act to ameiid the Merchant Shipping Acts. Unseaworthy Ships. Sect. 5. In every contract of service, expressed or implied, Ijetweeu the owner of a ship and the master or any seaman thereof, and in every in.strnnient of apprenticesship -vvhereljy any person is bound to serve as an a])prentice on hoard any ship, there shall he implied, notwithstanding,' any atfreement to the contrary, an obligation on the owner of the sliij) that the owner of the ship, and the master, and every agent cliarged with the loading of the ship, or tlae preparing thereof for sea, or the sending thereof to sea, shall use all reasonable means to insure the sea- worthiness of the ship for the voyage at the time when the voyage com- mences, and to keep her in a seaworthy condition for the voyage during the same : Provide], that nothing in this section shall subject the owner (jf a ship to any liability by reason of the ship being sent to sea in an- unseaworthy state where, owing to special circumstances, the so sending thereof to sea is reasonable and justifiable (tn). 43 & 44 YICT. c. 16. An Act to amend the law rclatinu to the Paijinent of Jfages and Rating of Merchant Seamen. [2nd August, 1880.] Sect. 2. (1.) After the first day of August, one thousand eight hundred and eighty-one, any document authorising or promising, or purporting to authorise or promise, the future payment of money on account of a seaman's wages conditionally on his going to sea from any jjort in the United Kingdom, and made before those wages liave been earned, shall be void. (2.) No money paid in satisfaction or in respect of any such docu- ment shall be deducted from a seaman's wages, and no person shall have any right of action, suit, or set-olf against the seaman or his assignee in respect of any money so paid or purporting to have been so paid. (3.) Nothing in tliis section shall atlVct any allotment note made under the Merchant Shipping Act, 185-i. 3. (1.) Every agreement with a seaman which is re(iuired by the (m) No sucli implied coiitn.ct at 3 E. k 15. 402 ; 23 L. J. Q. 15. 121. Coiiiiuon Law. Cvuchv. AfccZ(lS54), bEAJlliN. oG7 Morcliant Sliippin;< Act, 1854, to be iiuide iu the Ibrui .sauctiuned by ti.e lioard of Tiiule sliuU, if the .seaman so require, stipulate for tlie alloi - ment of any jjart not exceeding' one-half of the wages of tlie seaniau in favour of one or more of tlie persons mentioned in section one hiindrc(l and sixty-nine of the Merchant Sliipping Act, 1«54, as amended by this section. (2.) The allotment may also l)e matle iu i'avour of a savings bank, and in that case shall be in favour of such persons and carried into effect in sucJi manner as may be for the time being directed by regulations of the I'oard of Trade, and section one hundred and sixty-nine of the ]\Ierchant Shipping Act, l8o4, shall l>e construed as if the said persons were named therein. (3.) The sum received in pursuance of such allotment by a savings bank shall be paid out only on an ajiplication made, through a super- intendent of a mercantile marine office or the Board of Trade, by the seaman himself, or, in case of death, by some person to whom the same might be paid under secticju one hundred and ninety-nine of the Merchant Shipping Act, 18.34. (4.) A payment under an allotment note shall Ijegin at the expiration of one month, or, if the allotment is in favour of a savings bank, of three months, from the date of the agreement, or at such later date as may be fixed by the agreement, and sliall be paid at the expiration of every subset|Uent month, or of sucli other periods as may be fixed by the agreement, and shall l)e paid only in re.spect of wages earned before the date of payment. {'}.) For the purposes of this section " .savings bank " means a savings bank established under one of the Acts mentioned in the first schedule to this Act, 4. In the case of foreign-going ships — (1.) The owner or master of the ship shall pay to each seaman oa account, at the time when he lawfully leaves the ship at the end of his engagement, two pounds, or one fourth of the balance due to him, whichever is least ; and shall pay him the remainder of his wages within two clear days (exclusive of any Sunday, fast day in Scotland, or bank holiday) after he so leaves the ship. {■2.) The master of the ship may deliver the account (jf wages men- tioned in section one hundred and seventy-one of the ^Merchant Shipping Act, 1854, to the seaman himself at or before the time when he leaves the ship instead of delivering it to a superintendent of a mercantile marine office, (3.) If the seaman consents, the final settlement of his wages may be left to the superintendent of a mercantile marine office under the regu- lations to be made by the Board of Trade, and the receipt of the super- intendent shall in that case operate as a release by the seaman untler section one hundred and seventy-ilve of the Merchant Sliipping Act, 18.34, 508 THE LAW OF JIASTER AND Sr:UVANT. (4.) In the event of the seaman's wages or any part thereof not being paid or settled as in this section mentioned, then, unless the delay is due to the act or defiiult of the seaman, or to any reasonable dispute as to liability, or to any other cause not being the ;ict or default of the owner or master, the seaman's wages shall continui- to run and be payable until the time of the final settlement thereof. (5.) Where a question as to wages is raised bi'fore the superintendent of a mercantile nuirine otlice between the ma^^ter or owner of a ship, and a seaman or apprentice, if the amount in question does not exceed five pounds, the superintendent may adjudicate, and the decision of the superintendent in the matter shall be iinal ; but if the superintendent is of opinion that the question is one which ought to be decided by a court of law he may refuse to decide it. 7. A seaman shall not be entitled to the rating of A.H, that is to say, of an able-bodied seaman, unless he has served at sea for four years byfore the nuist, but the employment of fishermen in registered decked fishing vessels shall only count as sea service up to the period of three years of such emplojmcnt ; and the] rating of A.B. shall only be granted after at least one year's sea service in a trading vessel in addition to three or more years' sea service on board of registered decked fishing vessels. Such service maj'' be proved by certificates of discharge, by a certificate of service from the Registrar General of Shipping and Seamen (which certificate the registrar shall grant on ]iayment of a fee not exceeding sixpence), and in which shall be spi-ciiied whether the service was rendered in whole or in part in steam shiji or in sailing ship, or by other satisfactory proof. Nothing in this section shall affect a seaman who has been rated and has served as A. B. before the passing of this Act. 8. Where a proceeding is instituted in or before any court in relation to any dispute between an owner or master of a ship and a seaman or apprentice to the sea service, arising out of or incidental to their relation as such, or is instituted for the purpose of this section, the court, if, having regard to all the circumstances of the case, they think it just so to do, may rescind any contract between the owner or master and the seaman or apprentice, or any contract of apprenticeship, upon such terms as the court may think just, and this power shall be in addition to any other jurisdiction which the court can exercise independently of this section. For the purposes of this section the term " court " includes any magis- trate or justice having juiisdiction in the matter to which tliepmceeding relates. 9. It shall be lawful for the sanitary autlnirity nf any seaport town to pass byelaws for tin- licensing of seamen's lodging-houses, for the fieriodical inspection of the same, for the granting to the jiersons to whom such licences are given, the authority to designate their houses as SEAMEN. oG9 seamen's licensed lo(l<,nng-li(mses, and for piescviLing the jienalties for the breach of the jjrovisions of tlie byelaws : Provided always, that no such byelaws shall take effect till they have received the approval of tlie Board of Trade. 10. The following provisions shall from the conmiencement of this Act have operation within the United Kingdom : A seaman or apprentice to the sea .service sliall not he liable to im- prisonment for deserting or for neglecting or refusing -without reasonalde cause to join his ship or to jiroceed to sea in his ship, or for absence •without leave at any time within twenty-four hours of his shijj's sailing from any port, or for absence at any time without leave and without sufficient reason from his ship or from his duty. Whenever either at the commencement or during the progress of any voyage any seaman or apprentice neglects or refuses to join or desert-'' from or refuses to proceed to sea in any ship in which he is duly engaged to serve, or is found otherwise alisenting himself therefrom without leave, the master or any mate, or the owner, ship's husband, or consignee jnay, with or without the assistance of the local police officers or constables, who are herel)y directed to give the same, if required, convey him on Ijoard : Provided that if the seaman or apprentice so requires he shall first be taken before some court capable of taking cognizance of the matters to be dealt with according to law ; and that if it appears to the court before which the case is brought that the seaman or apprentice has been conveyed on board or taken before the court on improper or in.su tfi- cient grounds, the master, mate, ow^ler, ship's husband, or consignee, as the case may be. shall incur a penalty not exceeding twenty pounds, but such penalty, if inflicted, shall be a bar to any action for false imprison- ment. If a seaman or apprentice to the sea service intends to absent himself from his ship or his duty, he may give notice of his intention, either to the owner or to the master of the ship, not less than forty-eight hours before the time at which he ought to be on board his ship ; and in the event of such notice being given, the court shall not exercise any of the powers conferred on it bj^ section two hundred and forty-seven of the Merchant Shipping Act, 1854. Subject to the foregoing provision of this section, the powers con- ferred l)y section two hundred and forty-seven of the Merchant Shipping Act, 1854, may be exercised, notwithstanding the abolition of imprison- ment for desertion and similar oftences, and of apprehension witlmut warrant. Nothing in this section shall affect section two hundred and thirty- nine of the Merchant Shipping Act, 1854. 11. The thirteenth section of the Employers and Workmen Act, 1875 (n), shall be repealed in so far as it operates to exclude seamen and (n) Sep Chapter XIV. 670 TIIK LAW OF JIASTEU AND SflUVANT. apprentices to the sea service from the said Act, and the said Act shall apply to seamen and apprentices to the sea service accordingly ; hut such repeal shall not, in the absence of any enactment to the contrary, extend to or or affect any provision contained in any other Act of Parliament passed, or to be passed, wherel)y Avorkman is detined by reference to the per.sons to ^vhom the Employers and Workmen Act, 1875, applies. 12. The enactments descril)ed in the Second Schedule to this Act shall be repealed as from the commencement of this Act within the United Kingdom. Provided that this repeal shall not all'ect — (1.) Anything duly done or suffered before the commencement of this Act under any enactment hereby repealed ; or (2.) Any right or privilege acipiirud or any liability incurred before the commencement of this Act, umlur any enactment hereby repealed ; or (3.) Any imprisonment, fine, or forfeiture, or other punishment incurred or to be incurred, in respect of any offence committed before the commencement of this Act, under any enactment hereby repealed ; or (4.) The institution or prosecution to its termination of any investi- gation or legal proceeding, or any other remedy for prose- cuting any such offence, or ascertaining, enforcing, or recover- ing any such liability, imprisonment, fine, forfeiture, or piuiishment as aforesaid, and any such investigation, legal proceeding, and remedy may be carried on as if this repeal had not been enacted. SCHEDULES. FIRST SCHEDULE. Chapter. Savings Dunks. 24 & 25 Vict. c. 14. . . . Post Office Savings Banks. 2(j & 27 Vict. c. 87. . . . 'i rr i. c' ■ hi _ „ „. / Trustee Savings Banks. 17 & 18 Vict. c. 104, s. 180. . . > ^ - c i> i ,„ „ ,-. ' I Seamen s Savings Banks. 19 & 20 Vict. c. 41 . . . ) SEAMEN. 571 SECOND SCHEDULE. (17 ct 18 VICT. c. 104, in part.) The Mcrcliant >S]ii]iphig Act, 1854, in part : namely, In section two hundred and forty-three, suL-seetion (1), the wor " to imprifionnient for any period not exceeding twelve weeks with or Avithont hard labour ; and also." In section two hundred and forty-three, sub-section (2), the words " to imprisonment for any period not exceeding ten weeks with or without hard lalnnir, and also at tlie discretion of the court." Section two hundred and forty-six. In section two hundred and forty-seven the words " instead of com- mitting the otfender to prison ; " And section two hundred and forty-eight. CHAPTER XII. ACTS RELATING TO ARBITRATION. 5 GEO. IV,, c. IK; (1824). An Act to consolidate and amend the Law relative to the Arhitmtio)i of Disputes hettceen Master and Men. Sect. 2. And be it further enacted that the following suTijects of dispute arising between masters and workmen, or between workmen and those employed by them, in any trade or manufacture in any part of the United Kingdom of Great Britain and Ireland, may be settled and adjusted in manner hereafter mentioned ; that is to say, disagreements respecting the price to be paid for work done, or in the course of being done, whether such disputes shall happen or arise between them respect- ing the piiyment of wages as agreed upon, or the hours of work as agreed upon, or any injury or damage done or alleged to have been done to the work, or respecting any delay or supposed delay in finishing the work, or the not finishing the work in a good and workmanlike manner, or according to any contract, or to bad materials ; cases where the work- men are to be employed to work any new pattern which shall rec^uire them to purchase any new implements of manufacture, or to make any alteration upon the old implements for the working thereof, and the masters and workmen cannot agree upon the compensation to be made to such workmen for or in respect tliereof ; disputes respecting the length, breadth, or quality of pieces of goods, or, in the case of cotton manufacture, the yarn thereof, or the quantity and (|ualityof the wool tliereof ; disputes respecting the wages or compensation to be paid for pieces of goods that are made of any great or extraordinary length ; dis])utes in the cotton manu- facture respecting the manufacture of cravats, shawls, policat, romal, and other handkerchiefs, and the number to be contained in one piece of such handkerchiefs ; (lis])utes arising out of, for, or touching the par- ticular trade or manufacture, or contracts relative thereto, which cannot be otherwise mutually adjusted and settled ; disputes between masters and persons engaged in sizing or ornamenting goods ; Init nothing in this Act contained shall authorize any justice or justices acting as hereinafter mentioned to estaldish a late of wages or price of labour or workmanshii) at which the workmen shall in future be paid, unless with the mutual consent of both master and workman : Provided ACTS RELATING TO ARBITRATION. 573- always, that all complaints by any workman as to bad materials shall be made within throe weeks of his receiving the same ; and all com- plaints arising from any other cause shall be made within six («) days after such cause of complaint shall arise, 3. And be it further enacted, that whenever such subjects of dispute shall arise as aforesaid, it shall bu lawful (h) for the master aiid workman or either of them, to demand and have an arbiti'ation or reference thereof in manner following ; that is to say, where the party complaining and the party complained of shall come before or agree by any writing under their hands to abide by the determination of any justice of the peace (c) or magistrate of any county, riding, division, stewartry, barony, city, burgh, town, or place, within which the parties reside (r/), it shall be lawful for any justice of the peace or magistrate to hear and finally determine, in a summary manner, the matter in dis])ute between such parties ; but if such parties shall not come before or so agree to abide by the determination of such justice of the peace or magistrate, then it shall be lawful for any such justice or magistrate, and such justice of the peace or magistrate is hereby required, on complaint made before him, and proof by the examination of the party making such complaint, that application has been made to the person or persons against whom such caixse of complaint has arisen, or his, her, or their agent or agents, if such dispute has arisen with such agent or agents, to settle such dispute, and that the same has not lieen settled upon such comjilaint being made, or where the dispute relates to a bad war]), that such cause of complaint has not been done away with within forty-eight hours after such ap23lieation to summon before him such jjerson or persons, or agents or agents, on some day not exceeding three days, exclusive of Sunday, after the making such complaint, giving notice to the person making such complaint of the time and place appointed in such summons for the attendance of such person or persons, agent or agents as aforesaid ; and if at such time and place the person or persons so summoned shall not appear by himself, herself, or themselves, or send some person on his, her, or their behalf, to settle such dispute, or, appearing, shall not do away with such cause of complaint, then and in such case it shall be lawful for sucli justice, and he is hereby required, at the request of either of such pai-ties, to nominate arbitrators or referees for settling the matters in dispute ; and such justice shall then and there at such meeting proj^ose not less than four nor more than six persons, one half of whom shall be master manu- facturers, or agents or foremen of some master manufacturer, and the fa) Fourteen days by 1 & 2 Vict. wn^s, jrerchant Shipping Act, 1854 c. 67. ' s. 173. a') See Criip v. Bunhuni (183-2) («•) Bv 7 Will. \Y. and 1 Vict 8 Bin,?. 394; 1 M. & S. 646. Soo c 67. s. 3, the term "justice'"' also JuIiK.f V. Bishop of Oxford, L. iueluJes '^masfistrate." IL r,, Ap., 214. " ' on See 7 Will. IV. & 1 Vict. c. As to disputes about seamen's 67, s. 2. 574 THE LAW OF MASTER AND SERVANT. other half of whom shall he workmen in such manufacture ; such respective persons residing; in or near to the place -where such dispute shall have arisen ; out of which master manufacturers, agents, or fore- men, the master engaged in such dis])ute, or his agent, shall choose one, and nut of which workmen so proposed the workman or his agent f;hall choose another, who shall have full power to hear and finally eace acting for , do hereby certify that the above and [or one of them, an the case may he], having refused or delayed to act in the above-mentioned reference, and [or only, as the case may he], are [or is] by me duly nominated referees [or referee], together witli tlie above-named [or ], to settle the matters in difference between the above-named and ; and the said or together with the said [or the said or , as the case may he], are directed to meet at the place above mentioned, en the day of in the year of our Lord at of the clock in the forenoon [or afternoon, as the case rnaij he']. A. B. And the persons so appointed as aforesaid shall hear and examine tlie ]arties and their witnesses, and determine such dispute within two days after such nomination, exclusive of Sundays ; and the determination of such arbitrators shall be final and conclusive. 6. And be it further enacted, That in all cases where complaints are made respecting bad warps or utensils by workmen, the ]ilace of meeting of the referees shall be at or as near as may be to the place ■where the -work shall be carrying on ; and in all other cases at or as near as may be to the place or places where the work has been given out. 7. (If any person so complaining shall not attend, or send some person on his or her behalf, the justice of the peace shall thereupon nominate a person for him out of such persons so proposed as aforesaid). 8. And be it further enacted. That the said arbitrators and referees shall meet at the time and place fixed by the justice of the peace by •whom such referees were appointed, and shall, by inspection of the work in regard to which the dispute may have arisen, by hearing and examining the parties, or any other persons on their behalf, or that attend to give evidence respecting the matters in dispute, upon oath (which the said arbitrators and referees are hereby empowered to administer), or otherwise, or by otherwise ascertaining the true state of the case, in such manner as to such arbitrators and referees shall appear necessary, proceed to determine the matter or matters in dispute referred to them ; and the award to be made by such arbitrators and referees shall be final and conclusive between the parties, without being subject to review or challenge by any court or authority whatsoever. 576 TUE LAW OF MASTER AND SERVANT. 9. It shall lie lawful for any arbitrator or arbitrators, referee or referees, and he or they are hereby authorised and re(inired, at thu request in writing of any of the parties to issue his or tlieir summons to any witness or Avitnesses to appear and give evidence before such ar1)i- trator or arbitrators, referee or referees, &c. If any person so summoned to appear as a witness as aforesaid shall not appear, &c., it shall be lawful for any one or more of His ]\Iajesty's justices of the peace, &c., and they are hereby authorised, &c., by warrant under the hands of any such justice or justices to commit any such person so making default in appearing, or appearing and refusing to give evidence, to some prison within the jurisdiction of any such justice or justices, there to remain, without l)ail or mainprize, for any time not exceeding two calendar inonths, nor less than seven days, &c. 10. And be it further enacted, That in case such arbitrators and referees so appointed cannot agree upon and decide such matter or matters in dispute so referred as aforesaid, or shall not make and sign their award within three days after the date of the order of such justice, certifying their appointment, then the said arbitrators and referees shall without delay go before tlie justice by whom they were appointed ; and, in case of his absence or indisi)Osition, before any other of His ]\Iajesty's justices of the peace acting in and for the county, stewartry, riding, division, baronry, city, burgh, town, liberty, or place, and residing nearest to the place where the meeting to settle such dispute shall have taken place, and shall state to such justice or justices who may be present the points in difference between them the said arbitrators and referees, which points in difference the said justice or justices shall and is and are hereby authorised and required to hear and determine upon the statement of tlu^ arbitrators and referees ; and tlie said justice or justices is and are hereby directed and required to settle and determine the matter in dispute with all possiljle dispatch, and in all cases within the space of two days after the expiration of the time hereby allowed to the arbitrators and referees to make and sign their award ; and the determination of such justice or justices shall be final and conclusive between the parties so differing as aforesaid, without being subject to review or challenge by any court whatsoever. 11. And be it further enacted, That if either arbitrator or referee shall neglect or refuse to go before such justice of tlie peace in the manner herein directed, it shall and may be lawful for such justice, after sum- moning the arbitrators to attend him, to determine the matter or matters in dispute, upon the statement and representation of either of the arbi- trators who shall come before him. 12. Provided always, and be it further enacted, That no justice of the peace, being also a master manufacturer or agent, shall act as such justice under this Act. 13. Provided always, and be it further enacted, That as well in all such cases of dispute as aforesaid as in all other cases, if the i)artics ACTS RELATING TO ARBITRATION. 577 mutually agree that tlie matter in dispute sliall be arbitrated and determined in a ditlerent mode to the one hereby prescribed, such agreement shall be valid, and the award and determination thereon fuial and conclusive between the parties and the same proceedings of distress, sale, and imprisonment, as hereafter mentioned, shall be had towards en- forcing such award, (by application to any justice of the peace of the county, stewartry, riding, division, barony, city, town, burgh, or jjlace ■within which the parties shall reside), as are by this Act prescribed for enforcing awards made under and by virtue of its provisions. 14. Provided always, and be it further enacted, That where any work shall have been delivered to any workman by the agent or servant of any master or masters, to be when finished delivered to such agent or servant ; and also where two or more pei'sons shall carry on the business of such manufacture as partners, in every sucli case respectively the like proceedings shall and may be had and made against such agent, servant, or any partner, and shall be as effectual as if the same had been had and made against the principal, or all the partners ; and all the said persons respectively shall obey the awai'd made thereiipon, and all such order or orders as shall be made by tlie said justice or justices in or respecting the matters in dispute, and shall be subject to the same proceedings and consequences for refusing or delaying to abide by or perform the same, as if the proceedings had been liad against tlie principal, or against all the partners, 15. And be it further enacted. That it shall be lawful in all cases for any master or workman, by writing under his hand, to authorize any person to act for him in submitting to arbitration and attending arljitra- tors or justices touching the matter of any arbitration. 16. Provided a master or masters shall become or be bankrupt, or any assignment of his or their estate or effects shall have been made under the said bankruptcy, or otherwise by deed or in law, the factor or trustee upon, or the assignee or assignees of such estate or effects shall be liable to the proceedings authorized liy this Act against the master or masters, as fully as the master or masters was or were before the bankruptcy or assignment, &c. 17. Where any married woman or infant under the age of twenty- one years shall have cause of complaint in any of the cases provided for by this Act, &c., such complaint may be lodged, and all further proceed- ings thereupon had, by and in the name of the husband of such married woman, and of the father, or, if dead, of the mother, or if on the death of both parents, of any of the kindred of any such infant, or of the surety or sureties in any indenture of apprenticeship of any such infant, being an apprentice, or of any person nominated by such infant, if he or she shall not have parent, kindred, or surety, &c. 18. And be it further enacted. 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 delivere'l a note or ticket, in such form as the said 678 THE LAW OF MASTER AND SERVANT. parties shall mutually agree upon ; and wliicli said note or ticket, in the event of dispute between the manufacturer and workman, shall he evidence of all matters and things mentioned therein or respecting the same. 19. And he it further enacted, That a duplicate of every such note or ticket shall be made and kept by the master or agent delivering the same, which duplicate shall be evidence of all the matters and things therein contained, in case the workman shall not produce to the arbitra- tors, or the said justice, as the case may be, the said note or ticket so delivered to him with the said work. 20. And be it further enacted, That it shall not be allowable to any manufacturer, who shall have received into his possession any article without objection made within twenty-four hours, by himself or his clerk or foreman, afterwards to make any complaint on account of worlc so received. 21. ProWded always, and be it further enacted. That if the parties by and between whom the said reference shall take place as aforesaid, shall think it expedient, or be desirous to extend the time hereby limited for the making the award or umpirage, it shall and may be lawful for them to extend the same accordingly by endorsement, according to the form ia the schedule hereunto annexed, on the back of the orderof the justice of peace, certifying the appointment of the referees, to be signed by both of them in the presence of one or more credible witness or witnesses. 22. And be it further enacted. That the award or umpirage to be made upon any reference demanded under this Act shall and may be drawn nn and written at the foot or upon the back of the said order, certifying the appointment of the referees, according to the form in the schedule hereunto annexed. 23. And be it further enacted, That upon fulfilment of the award or umpirage, the same shall be acknowledged by the party in whose behalf the same was" made, by an acknowledgment at the foot of the said award, in the form of the schedule hereunto annexed, which, with the award, shall thereupon be delivered to the party fulfilling tlie same. 24. And be it further enacted. That if any party shall refuse or delay to fulfil an award under this Act, for the space or term of two days after the same shall have been reduced into writing, it shall be lawful for any Buch justice as aforesaid, on the application of the party aggrieved, and he is hereby refpiired by warrant under his hand according to the form of the schedule hereunto annexed, or in some other form to the like effect, to cause the sum and sums of money directed to be paid by any such award to be levied by distress and sale of any goods and chattels of the person or persons liable to pay the same, together with all costs and charges attending such distress and sale, such sale to t;ike place within sucli time, not exceeding five days, as the said justice shall think projier ; and the overplus, if any, to arise by such sale, to be rendered to the owners of the goods and chattels distrained ; and in case it shall ajipear ACTS RELATING TO ARBITIIATION. 579 liy any return to sucli warrant tliat no sullicient distress can he readily- had, wliich ret\irn may he in the form contained in the schedule here- unto annexed, or in some other form to the like effect, it shall he lawful for any such justice as aforesaid, and he is hcrehy required hy wan-ant under his haud accordiui; to tlie form of the schedule hereunto annexed, or in some other form to the like effect, to commit the person or persons so liahle as aforesaid to the common gaol, or some house of correction within his or their jurisdiction, there to remain without hail for any term not exceeding three months. 25. " And whereas cases may occur where the recovery of such sum or sums of money hy distress and sale of goods and chattels of the defaulter may a])pcar to the justice or justices of the ])oace hy whom the warrant is to he issued to he attended with conse(iuences ruinous or in an especial manner injurious to the defaulter and his family ;" to prevent which consequences, he it further enacted, That the said justice or justices, in all such cases, shall withhold such warrant, and commit the defaulter to the common gaol or some house of correction within his or their juris- diction, there to remain without hail for any time not exceeding three months ; such commitnu-nt to he in the form or to the effect of the form in the schedule to this Act annexed. 26. And he it further enacted, that where any person shall he com- mitted to prison for refusing or delaying to fulfil an award as afore- said, and such person shall, at any time during the period of his or her imprisonment, pay to the governor or keeper of the prison the full amount of the sum awarded, with all reasonable exjjenses incurred through such refusal or delay, it shall be lawful for such governor or keeper of such prison, and he is hereby required forthwith to discharge .such person from his custody. 27. And be it further enacted, That the justice or justices by whom any person or persons shall be committed to prison for not appearing as a witness, or not submitting to be examined, shall cause the warrant or order for such commitment to be drawn up in the form or to the effect set forth in the schedule to this Act. 28. And be it further enacted. That no appeal or certiorari shall lie against any proceedings under this Act. 29. And be it further enacted. That no proceedings nndi-r this Act shall be invalid for want of form. 30. (e) And be it further enacted, That tlie following and no higher fees shall be allowed to be taken for any proceeding under tliis Act ; (that is to say,) To the clerk of the justice or justices : for each summons, two pence ; for every oath or affirmation, three pence ; for drawing and entering the order, four pence ; for every warrant, six pence. To the constable or other peace officer :^For service of summons or order, fourpence ; for executing warrant of distress and .sale of goods, (0 Sec 40 & 41 Vict. c. 43. 580 THE LAW OF MASTER AND SERVANT. one sliilliug ; for aistody of goods diRtraine Form of the Oath to be administered hy the arbitrators or justice to the 2)artics and witnesses under this Act. The evidence that you shall give before us, the arbitrators appointed by and [tlie 2}arties'] to determine the matters in dilfer- ence between them, under and by virtue of an Act passed in the fifth year of the reign of King George the Fourth, intituled An Act [state the title of this Act], shall be the truth, the whole truth, and nothing but the truth. So help you GOD. Form of Comniitment of a i)erson summoned as a witness before the Arbitrators. Whereas proof on oath hath been made before me, one of his majesty's justices of the peace for the county [or riding, stewartry, division, city, burgh, liberty, town, or place] of on this Jay of that hath been duly summoned, and iiath neglected to appear and give evidence before and , the arbitrators appointed by and between and , to deter- mine the matters in dispute between them at in tlie county [or riding, stewartry, division, city, burgh, Kberty, town, or jjlace] of on the day of under and by virtue of an Act made in the fifth year of the reign of his present majesty, intituled An Act [liere set forth the title of this Act], and the said being required by me, the said justice, to give evidence before the said arbitrators, and still refusing so to do, therefore I, the said justice, do hereby, in pursuance of the said Act, commit the said to the [describing the p-ison and the house of correction] there to remain without bail or mainprize for liis [or her] offence aforesaid, until he [or she] shall submit himself [or herself] to be examined, and give his [or her] evidence before the said arbitrators, touching the matters referred to them as aforesaid, or shall otherwise be discharged by due course of law : And you the [constable or other peace officer or officers to whom the warrant is directed] are hereby authorized 582 THE LAW OF MASTER AND SERV^VJNT. imd rt'cjuircil to take into yoitr custody the body of the said and liini [(,;• lier] 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 liex-eby authorized and required to receive into his custody the body of the Siiid , and him [or her] safely to detain and keep, pursuant to this coniniitnient. CJiven 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 Correction].] Form of JFarrant 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 jiresent Majesty, intituled an Act [state the title of this Act], is liable to pay to , of , the sum of , and also the sum of , and the said having refused or neglected to pay the same for the space of two days and upwards subsequent to the making such award, these are therefore to command you to levy the said sum of by distress and sale of the goods and chattels of the said , and I do hereby order and direct the goods and chattels so to be distrained to be sold and disjjosed of within days, unless the said sum of , for which such distress shall be made, together with the reasonable charges of taking and keeping such distress, shall be sooner paid ; and you are also hereby commanded to certify to me what you shall do by virtue of this my warrant. Given under my hand and seal at the day of Form of the ConstahWs lleturn to the IVarrant of Distress. I, , constable of , do hereby certify to , justice of the peace of , that I have made diligent search for, but do not know of, nor can find any goods and chattels of by distress and sale whereof I may levy the sum of , jiursnant to his wariant 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 therenj)on to tlie House of Correction. anie ) To the Constable of , !urpose of compelling those masters to raise their wages." See also Jlrx V. Hndlt (1851), 5 Cox, 162. (i) (1861), 3 E. k E. 516; 30 L. J. M. C. 121 ; 9 AY. K. 271 ; 3 L. T. N. S. 666. (Appellant sum- marily convicted because he and two other workmen of A. went to him with a paper signed by appellant and other workmen of A., saying that they had resolved at a meeting to cease working immediately unless certain workmen were discharged, and they liad a definite answer by dinner time.) (k) (1863), 4 B. & S. 376. (Chair- man at a meeting of a benefit club asked workman whether he would leave certain shop, or stay ami be despised by the club, have his name sent round the countr}', and be put to all sorts of unpleasantness ; a threat within the statute.) (/) (1866), 13 L. T. N. S. 630. (Workmen going in a body to a nuister and saying, "Unless you discharge him (a person who had not struck work) your men .shall not be allowed to work ; " a threat under s. 3.) (m) (1867), L. K. 2 Q. B. 393. (A notice served by secretar}' ol' liranch lodge of carpenters' union upon a master builder, stating that he had been requested by the com- mittee to give the men in the builder's employment notice to come out on strike against him, unless he became a member of the society ; ajipcllaut rightly convicted.) ()i) 30 E. J. U. C, ]). 123; Lush, ,l..in iroidv.Jhnrton (1866), 10 Cox, |). 351 ; and compare remarks of Sir W. Erie in Memorandum on Trade Unions, p. 65. TRADE UNIONS. «>01 trade aflfected by the legislation just described ? This was considered by the Court of Queen's Bench in Hilton v. Ech-rshy (o) in 185C. An agreement under seal was entered into by eighteen cotton spinners to carry on or suspend for twelve months their works in conformity with the resolution of a majority, under a penalty of five hundred pounds. The Court held the bond to be void, as being in restraint of trade, and this was affirmed in the Exchequer Chamber. The remarks of Crompton, J., are worth noting : " I think," he said, " that combinations like that disclosed in the pleadings in this case Avere illegal and indictable at Common Law, as tending directly to impede and interfere with the free course of trade and manufacture. Combinations of this nature, whether on the part of the workmen to increase, or of the masters to lower, wages were equally illegal. By recent enactments, carefully worded, combina- tions to raise or lower the rate of wages, and to regulate the hours of labour, are made no longer punishable. But these enactments do not make such agreements legal agreements in the sense that the breach of them can be enforced at law ; and still less do they apply to make enforceable at law an agreement, not being a mere stipulation among the parties themselves, which any one might withdraw from at his pleasure, but binding and tying themselves up, under a penalty, to close their works if a majority of a particular body shall dictate to them so to do. I think this bond void, as being in restraint of the freedom of trade, and from its mis- chievous and dangerous tendency, pointed out in the agree- ment, with respect to strikes and combinations. . . . The public are not recompensed for the ceasing of one party by the other parties being able to carry on their trade with increased facilities." Lord Campbell agreed with Crompton, J., in his conclusion, and he thought that the bond was invalid, on the ground that it was against pubhc policy; but he declined to say that a criminal offence at Common Law had been (o) 5 E. & B. 682 ; 6 E. & B. 47 ; 199 ; 26 L. T. 314. 24 L. J. Q. B. 353 ; 25 L. J. Q. B. 602 THE LAW OF :\rASTER AND SERVANT. committed. A similar question arose in 1«S()7 in Horuhy v. Close (p). A society which liad a considerable number of rules intended for the maintenance of men on strike was held not to be a Friendly Society within sections 9 and 44 of the Friendly Societies Act, 18 eV: 19 Vict. c. 03, which gave certain remedies to a friendly society established " for any purpose which is nut illegal." Consequently the justices had no summary jurisdiction in case of fraud or misappro- priation of funds by members. The same point came up in Fdrrer v. Close (q). An information had been laid against an officer of a Friendly Society under sections 24 and 44, 1) 36 L. J. M. C. 43; 8 15. i: S. K. 4 Q. B. C02 ; 20 L. T. N. S. 175; 10 Cox, C.C. 393. 802; 17 W. K. 1129; 10 U. & S. {q ) (1869) 38 L. J. M. ('. 132 ; L. 553. TRADK UNIONS. GO-'i (the Criminal Law Amendment Act, 1871), were passed. The second of these was repealed by the 38 t^ 39 Vict. c. 86, s. 17. The first as amended is still in force. 34 & 35 VICT. c. 31 (]871). An Act to amend the Law relating to Trade Unions. Be it enacted by the Queen's most Excellent Majesty, hy and witli the advice and consent uf the Lords Spiritual and Temporal, and Commons, in this present Parliament assembh'd, and by thu authority of the same, as follows : Preliminary. 1. This Act may be cited as " The Trade Union Act, 1S7I." Crimi)utl Provisions. 2. The jjurposes of any trad^' union shall not, by reason merely that they are in restraint of trade, Ix; deemed to be unlawful, so as to render any member of such trade union liable to criminal prosecution for con- spiracy or otherwise. 3. The purposes of any trade union sluill not, by reason merely that they are in restraint of trade, 1 le unlawful so as to render void or voidable any agreement or trust. 4. Nothing in this Act .shall enable any Court to entertain any legal proceeding instituted Avith the object of directly enforcing or recovering damages for the breach of any of the following agreements, namely, (1.) Any agreement between members of a trade union as such, con- cerning the conditions on which any members for the time being of such trade union shall or shall not sell their goods, transact business, employ, or be employed : (2.) Any agreement for the payment by any person of any sub.scrip- tit)n or penalty to a trade union : (.3.) Any agreement for the application of the funds of a trade union (r), — (;•) Jligby v. (Jonnol (1880), 14 Cli. that is a slioii iu wiiicli persons not D. 482 ; 42 L. T. N. S. 139. (A mem- menib(Ms ol'tliis luiiou were employed, ber of a trade union, who was e.\- asked for a declaration that he was pellcd therefrom because, contrary to entitled to participate in the pro- the rules of the imion, he bound Lis peity and benelits ot the union, son apprentiit! in a "foul shop," and an injunction restraining the G04 THE LAW OF MASTER AND SERVANT. (rt.) To provide benefits to meiubers ; or, (6.) To furnish contributions to any employer or -workman not a member of such trade union, in consideration of such employer or workman acting in conformity with the rules or resolutions of such trade union ; or, (c.) To discharge any fine imposed upon any person by sentence of a court of justice ; or, (4.) Any agreement made between one trade union and another ; or, (5.) Any bond to secure the perfonuance of any of the above- mentioned agreements. But nothing in this section shall be deemed to constitute any of the above-mentioned agreements unlawful. 5. The following Acts, that is to say, (1.) The Friendly Societies Acts, 185.") and 1858, and the Acts amending the same ; (2.) The Industrial and Provident Societies Act, 1867, and any Act amending the same ; and (3.) The Companies Acts, 1862 and 1867, shall not apply to any trade union, and the registration of any trade union under any of the said Acts shall be void, and the deposit of the rules of any trade union made under the Friendly Societies Acts, 1855 and 1858, and the Acts amending the same, before the passing of this Act, shall cease to be of any ettect. (lefciulants from excluding liiiu from such ]i;uticipiitioii. Jesscl, M. K., declined to interfere (1) because it was not stated that there were any profits; (2) because the application was contrary to s. 4, sub-s. 3 ; and (3) because many of the stipulations in the rules being in restraint of trade, were illegal apart ironi the Act. " If nothing in the Act will assist the plaintitr," said .Icssel, .M.H., "he must still be in the ]H)sition of a member of an illegal as.sociation com- ing to a Court of justice to assist hiiu to enfiircc his ri,u:hts under that illej;al association. If that is so, it is im- possible for mc. and I do not think it was ever intended by the Legisla- ture, looking to the terms of tlie Act of rarlianient, to enable the Courts to interfere on behalf of the mem- bers of these societies, for the purpose of getting relief intrr sc with respect to rights and liabilities contrary to the Act." In a subsequent case decided by Denman, J., Duke v. Litllchoy (1880), 43 L. T. N. S. 266 ; 49 h. J. Ch. SO'2, it was lield that the executive of a trade union, the rules of which l)rovided for the ordeiing of strikes by the executive council, and also for rendering assistance to other bodies on strike, were not entitled to claim an injunction to restrain the otticers of a branch from dividing the lialance of the funds, on the ground that it was a proceeding instituted with the object of directly enforcing " an ngreenient for the application of the lunds of a trade union to provide for the lienefit of members." Wolfe v. Matthews {l%^2), h. K. 21 Ch. D."l94 ; :J0 W. K. 839. (.Vction by certain olticeis of a trade union to restrain defendants from amalgamating with other trade unions; held that theaction lay.) See also Amahjitmalcd ,Socicti) of Ji'((i/ir((y Servants for Scotland v. The Moth rrircll Bra nch of the Socicti/ (1880). 7 1!. S()7, where the Court of Session granted an interdict aj;ainst the defen- dants jiartinj; with the funds in their hanils until the rights of the i)arties could be ascertained ; and Stokes v. Sanders, Law Times, June 3, 1 882, p. 85. TIIADH UNIONS. OOo Registered Trade Union.'i. (). Any suvi'U or iiion' iiU'iubtTS of a tnule iiuinu may by subscriljiiif,' tlieir nanic's to the rules of tlie union, and otliurwi^e complying with the, provisions of this Act with respect to registry, register such trade union under tliis Act, jirovided that if any one of tlie purposes of such trade union be unhiwful such registration shall be void. 7. It shall be lawful for any trade union registered under this Act to purchase or take upon lease in the names of tlie trustees for the time being of such imion any land not exceeding one acre, and to sell, exchange, mortgage, or let the same, and no purchaser, assignee, mort- gagee, or tenant shall be bound to in([uire -whether the trustees have authority for any sale, exchange, mortgage, or letting, and the receipt of the trustees shall be a discharge for the money arising tlu-refrom ; and for the purpose of this section every branch of a trade union shall be considered a distinct union. 8. All real and personal estate whatsoever belonging to any trade union registered under this Act shall be vested in the trustees for the time being of the trade union appointed as provided by this Act for the use and benefit of such trade union and the members thereof, and the real or personal estate of any brancli of a trade union shall be vested in the trustees of such branch, and be under the control of such trustees, their respective executors or administrators, according to tlieir respective claims and interests, and upon the death or removal of any such trustees the same shall vest in the succeeding trustees for the same estate and interest as the former trustees had therein, and subject to the same trusts, without any conveyance or assignment whatsoever, save and except in the case of stocks and securities in the public funds of Great Britain and Ireland, which shall be transferred into the names of such new trustees ; and in all actions, or suits, or indictments, or summary proceedings before any court of summary jurisdiction, touching or concerning any such property, the same shall be stated to l)e the pro- perty of the person or persons for the time being holding the said office of trustee, in their proper names, as trustees of sucli trade union, without any further description. 9. The trustees of any trade union registered under this Act, or any other officer of such trade uninn who may be authorised so to do by the rules thereof, are hereby empowered to bring or defend, or cause to be brought or defended, any action, suit, prosecution, or complaint in any court of law or equity, touching or concerning the jn'operty, right, or claim to property of tlie trade union ; and shall and may, in all cases concerning the real or personal property of such ti-ade union, sue and be sued, plead and be impleaded, in any court of law or equity, in their proper names, without other description than the title of their office ; and no such action, suit, prosecution, or complaint shall be discontinued or shall abate by the death or removal from office of such persons or any 60C THE LAW OF ^MASTKU AND SERVANT. of them, liut the same Av.\\\ and may ha proceeded in by their successor or successors as if such death, resignation, or removal had iKjt taken place; and such successors sliall pay or receive the like costs as if the action, suit, prosecution, or complaint had been commenced in their names for the benefit of or to be reimbursed from the funds of such trade union, and the summons to be issued to such trustee or other officer may be served by U-avin;^' the same at the registered ottice of the trade union. 10. A trustee of any trade union registered imder this Act shall not be lialile to make good any deficiency which may arise or hajipen in the funds of such trade union, but shall be liable only for the moneys vhicli shall be actually received by him on account of such trade union. 11. Every treasurer or other officer of a trade union registered under this Act, at such times as by the rules of such trade union he should render such account as hereinafter mentioned, or upon being required so to do, shall render to the trustees of the trade iinion, or to the members of such trade union, at a meeting of the trade union, a just and true account of all moneys received and paid by him since he last rendered the like account, and of the balance then lemaining in his hands, and of all bonds or securities of such trade union, ^vhich account the said trustees shall cause to be audited by some fit and proper 2)erson or persfms by them to be appointed ; and such treasurer, if thereunto recpiired, upon the said account being audited, shall forthwith hand over to the said trustees the balance which on such audit appears to be K UNIONS. C07 situate iqion a complaint niatlc l)y any person on liclialf of such traSuniniary Jurisdiction Act. 11. Provided, that upon the liefiriii^^- ami determining of any in the manufacture of woollen cloth in the county of York," and ends with the words " for preserving the credit of the said manufactures at the foreign market ; " and (d.) An Act passed in the nineteenth year of King George the Third, chapter forty-nine, and intituled " An Act to prevent abuses in the payment of wages to persons em])loyed in the bone and thread lace manufactory ; " and (c.) Sections eighteen and twenty-three of an Act passed in the session of the third and fourth years of her present Majesty, chapter ninety-one, intituled " An Act for the more effectual prevention of frauds and abuses committed by weavers, sewers, and other persons employed in the linen, hempen, miion, cotton, silk, and woollen manufactures in Ireland, and for the better payment of their wages, for one yeai-, and fiom tlience to the end of the next session of I'arlianient ; " and (/.) Section seventeen of an Act i>assed in the session of the sixth and seventh years of lier ])resent Majestj", eliajiter forty, the title of which begins with the words " An Act to amend the laws," and ends with the words " workmen engaged therein ; " and {(J.) Section seven of an Act jiassed in the sessicm of the eighth and ninth years of her ])resent Majesty, c]iai)ter one hundred and twenty-eight, and intituled "An Act to make further TKADH UNIONS. G2:J regulations respecting the ticlvL-ts of work to be delivered to silk weavers in certain cases." Provided that, — (1.) Any order for wa.ges or further sum of compensation in addition to wages made in pursuance of section sixteen of " The Summary Jurisdiction (Ireland) Act, 1851," may he enforced in like manner as if it were an order made by a court of summary jurisdiction in pursuance of the Employers and Workmen Act, 1875, and not other- Avise ; and (2.) The repeal enacted by this section shall not affect — (a.) Anything duly done or sufiered, or any right or liability acquired or incurred under any enactment hereby repealed ; or (6.) Any penalty, forfeiture, or punishment incurred in respect of any ofience committed against any enactment hereby re- pealed ; or (c.) Any investigation, legal proceeding, or remedy in respect of any such right, liability, penalty, forfeiture, or punishment as aforesaid ; and any such investigation, legal proceeding, and remedy may be carried on as if this Act had not passed. Ajiplication of Ad to Scotland. 18. This Act shall extend to Scotland, with the modifications following : that is to say, (1.) The expression "municipal authority" means the town council of any royal or parliamentary burgh, or the commissioners of police of any burgh, town, or populous place under the provisions of the General Police and Improvement (Scotland) Act, 1862, or any local authority under the provisions of the Public Health (Scotland) Act, 1867 : (2.) The expression " The Summary Jurisdiction Act " means the Summary Procedure Act, 1864, and any Acts amending the same : (3.) The expression "the court of summary jurisdiction " means the sheriff of the county or any one of his substitutes. 19. In Scotland the following provisions shall have effect in regard to the prosecution of offences, recovery of penalties, and making (jf orders under this Act : — (1.) Every offence under this Act shall be prosecuted, every penalty recovered, and every order made at the instance of the lord advocate or of the procurator fiscal of the sherifT court : (2.) The proceedings may be on indictment in the Court of Justiciary in Edinburgh, or on circuit, or in a sheriff court, or may be taken summarily in the sheriff court under the provisions of the Summary Procedure Act, 1864 : (3.) Every person found liable on conviction to pay any penalty under this Act shall be liable, in default of payment within 624 THE LAW OF JIASTER AND SEKVANT. a tiino to be fixed in tlie conviction, to be imprisoned for a term, to be also fixed therein, not exceeding two months, or imtil such penalty shall be sooner paid, and the conviction and warrant may ])e in the form of No. 3 of schedule K. of the Summary Procedure Act, 1864 : (4.) In Scotland all penalties imposed in pursuance of this Act shall be paid to the clerk of the court imposing them, and shall by him be accounted for and paid to the Queen's and Lord Treasurer's Remembrancer, and be carried to the Con- solidated Fund. 20. In Scotland it shall be competent to any person to appeal against any order or conviction under this Act to the next circuit court of Justiciary, or where there are no circuit courts, to the High Court of Justiciary at Edinburgh, in the manner prescribed by and under the rules, limitations, conditions, and restrictions contained in the Act passed in the twentieth year of the reign of his Majesty King George the Second, chapter forty-three, in regard to appeals to circuit courts in matters criminal, as the same may be altered or amended by any Acts of Parliament for the time being in force. Ai^plication of Act to Ireland. 21. This Act shall extend to Ireland with the modifications following, that is to say : — The expression " The Summary Jurisdiction Act " shall l)e construed to mean, as regards the police district of Dublin metropolis, the xVcts regulating the powers and duties of justices of the peace for such district ; and elsewhere in Ireland, the Petty Sessions (Ireland) Act, 1851, and any Act amending the same : The expression "court of summary jurisdiction " shall be construed to mean any justice or justices of the peace, or other magistrate to whom jurisdiction is given by the Summary Jurisdiction Act : The court of smnmary jurisdiction Avhen hearing and determining complaints under this Act, shall in the police district of Dublin metropolis be constituted of one or more of the divisional justices of the said district, and elsewhere in Ireland of two or more justices of the ])eace in petty sessions sitting at a place appointed for holding petty sessions : The expression "muuiciiial authority" shall be construed to mean the town council of any borough for the time being, subject to the Act of tlie session of the third and fourth years of the reign of her present Majesty, chapter one hundred and eight, entitled "An Act for the Regulation of Municipal Corporations in Ireland," and any commissioners invested by any general or local Act of Parliament, with ]iower of improving, cleansing, lighting, or paving any town or township. TRADE UNIONS. G25 30 & 40 VICT. c. 22. Arrangemknt of Clauses. CLiusc. 1. Construction and short title. 2. Trade unions to be witliin s. 28 of Friendly Societies Act, 1875. 3. Amendment of s. 8 of principal Act. 4. Provision in case of absence, &c., of trustee. 5. Jurisdiction in offences. 6. Registry of unions doing business in more than one country. 7. Life Assurance Coni])anies Acts not to apply to registered unions. 8. Witlidrawal or cancelling of certiticate. 9. Membership of minors. 10. Nomination. 11. ( 'hange of name. 12. Amalgamation. 13. Registration of changes of names and amalgamations. 14. Dissolution. 15. Penalty for failure to give notice. 16. Definition of " trade union " altered. An Act to amend the Trade Union Act, 1871 (1876). Whereas it is expedient to amend the Trade Union Act, 1871 : 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, as follows : 1. This Act and the Trade L'nion Act, 1871, hereinafter termed the princi])al Act, shall be construed as one Act, and may be cited together as the " Trade Union Acts, 1871 and 1876," and this Act may be cited sejiarately as the " Trade Union Act Amendment Act, 1876." 2. Notwithstanding anything in section five of the principal Act contained, a trade union, whether registered or unregistered, Avhich insures or pays money on the death of a child under ten years of age shall be deemed to be within the provisions (jf section twenty-eight of the Friendly Societies Act, 1875. 3. Whereas by section eight of the principal Act it is enacted that " the real or personal estate of any branch of a trade union shall be vested in the trustees of such brancli : " The said section shall be read and construed as if immediatelv after the hereinbefore recited words 626 THE LAW OF ^fASTEU AND SERVANT. there were inserted the words " or of the trustees of the trade union, if the rules of tlie trade union so jirovide." 4. When any person, being or having been a trustee of a trade iinitin or of any branch of a trade imiion, and Avliether appointed before or after the legal establishment thereof, in whose name any stock belonging to such union or branch transferable at the Bank of England or Bank of Ireland is standing, either jointly with another or others, or solely, is absent from Great Britain f)r Ireland respectively, or becomes bankrupt, or tiles any petition, or executes any deed for li(|uidati(m of his affairs by assign- ment or arrangement, or for composition with his creditors, (jr becomes a lunatic, or is dead, or has been removed from his oftice of trustee, or if it be unkno^\^l whether such person is living or dead, the registrar, on application in WTiting from the secretary and three members of the imion or branch, and on proof satisfactory to him, may direct the transfer of the stock into the names of any other persons as trustees for the union or branch ; and such transfer shall be made by the surviving or continuing trustees, and if there be no such trustee, or if such trustees refuse or be unable to make such transfer, and the registrar so direct, then by the Accountant-General or depiity or assistant Accountant- General of the Bank of England or Bank of Ireland, as the case may be ; and the Governors and Companies of the Bank of England and Bank of Ireland respectively are hereby indemnified for anything done by them or any of their officers in pursuance of this provision against any claim or demand of any person injuriously affected thereby. 5. The jurisdiction conferred in the case of certain ofl'ences by section twelve of the principal Act upon the court of summary jurisdiction for the place in which the registered office of a trade union is situate may be exercised either by that court or by the court of summary jurisdiction for the place where the offence has been committed. 6. Trade unions carrying or intending to carry on busiiu'ss in more than one country shall be registered in the country in which their registered office is situate ; biit copies of the rules of such unions, and of all amendments of the same, shall, when registered, be sent to the registrar of each of the other countries, to be recorded by him, and until such rules be so recorded the luiion shall not l)e entitled to any of the privileges of this Act or the priucijial Act, in the country in Avhich such rules have not been recorded, and until such ameiulments of rules be recorded the same shall not take effect in such countiv. In this section "country" means England, Scotland, or Ireland. 7. Whereas by the " Life Assurance Companies Act, 1870," it is pro- vided that the said Act shall not apply to societies registered under the Acts relating to Friendly Societies : The said Act (or the amending Acts) shall not apply nor be deemed to have applied to trade unions registered or to be registered uiuler the ])rincipal Act. 8. No certificate of registration of a trade union sliall be withdrawn or cancelled otherwise tlian by the chief registrar of friendly societies, or TRADE UNIONS. G27 ill the case of trade unions registered and doini,' Ijusincss ex. D. 229 ; 47 I.. J. M. C. 22 ; 37 L. T. N. S. 446. The following cases bear iipon this section : —lioutledtjc V. Jlisloj) (1860), 29 L. J. M. C. 90. (Judgment in action by ser- vant in (Jounty (Jourt for a wrongful dismissal is a bar to jiroceedings before justices to recover (juarter's wages.) Mil/ctt v. Cokmaii (1873), 44 L. J. Q. 15. 194 ; 33 L. T. N. S. 204. (Summons for wages, lieaiil by justices under the Master and Servant Act, 1867, dismissed ; plaintitls then issued ]>laints for the same in ( 'ounty Courts ; judgment for tiie defendant on the grounds that the matter was rea judicata. JliiuUaj V. lluslam (1878), L. R- 3 Q. P.. D. 481. (Appellant em- ployed by respondents as a spinner ; discharged for neglecting his work. The resjjondents refusing to pay wages in lieu of notice, appellant took pro- ceedings against respondents in the County Court. No counter-claim or set-olf liled or set up ; but evidence was produced to show appellant guilty of negligence. Verdict for £'i 10s. ; lield that tlie resj)ondents Avere not precluded from i)referring a claim before the justices under ss. 3 & 4, for wrongfully and negligently damaging materials.) L'^pon a complaint under 20 Geo. II., c. 19, by an artificer for wages due by his employer, the justices were at liberty to take into account the ((uality of the work, and to make, a deduction from the wages for bad workmanship. Sliarp v. JIainsworth (1862), 32 L. J. M. C. 33. {d) Under this .section the Scotch Courts have held that it is compe- tent to disregard arbitration clau.ses in contracts of service. Wi/stin v. Glasgow Tranucaijs Co. (1878), 5 K. 981 ; (j'/d.'iguw Tramicdi/ Co. v. Dfm2>snii (1877), 3 Coup. 440 ; but see London I'mimrai/s Co. v. Bailcij (1877), L. li. 3 Q. B. D. 127. EMI'LOVKUS AND AVOUKIMEN ACT. G33 The security shall be an umluitakiiij,' by tlie defendant and f)ne or more surety or sureties tliat tlie defendant will jiL-rl'nrni liis contract, subject on non-perl'orniance to tlie payment of a sum to be specified in the undiutaking. Any sum paid by a surety on behalf of a defendant in respect of a security under this Act, together with all costs incurred Ijy such surety in respect of such security, shall be deemed to be a debt due to him from the defendant ; and Avhere such security has been given in or under the direction of a court of summary jurisdiction, that court may order payment to the surety of the sum which has so become due to hiiu from the defendant. Court of Suinmarii JtiriaUctioi. 4. A dispiite under this Act lietween an employer and a workman may be heard and determined by a court of summary jurisdiction, and such court, for the purposes of this Act, shall be deemed to be a court of civil jurisdiction, and in a proceeding in relation to any such dispute the court may order payment of any sum which it may find to be due as wages, or ilamages, or otherwise, and may exercise all or any of the powers by this Act conferred on a county court : provided that in any proceeding in relation to any such dispute the court of summary jurisdiction — (1.) Shall not exercise any jurisdiction where the amount claimed exceeds ten pounds ; and (2.) Shall not make an order for the payment of any sum ex- ceeding ten pounds, exclusive of the costs incurred in the case ; and (3.) Shall not require security to an amount exceeding ten pounds from any defendant or his surety or sureties. 5. Any dispute between an apprentice to whom this Act applies and his master, arising out of or incidental to their relation as such (e) (which dispute is hereinafter referred to as a dispute under this Act), may be heard and determined Ijy a court of summary jurisdiction. G. In a proceeding before a court of summary jurisdiction in relation to a dispute under this Act between a master and an apprentice, the court shall have the same powers as if the dis^jute were between an employer and a workman, and the master were the employer and the apprentice the workman, and the instrument of apprenticeship a contract between an employer and a workman, and shall also have the following powers : (1.) It may make an order directing the apprentice to perform his duties under the apprenticeship ; and, (c) Under i Geo. IV. c. 34, s. 2, master and apprentice had ceased ; magistrates had jurisdiction, thougli Ji. v. Frond (1867), L. R. 1 0. C. K. summons taken out after relation of 71 ; 3t3 L. J. M. C. tJ2. 684 THE LAW OF MASTER AND SERVANT. (2.) If it rescinds the instruiiient of apprenticeship it may, if it thinks it is just so to do, order the whoh^ or any part of tlie premium paid on the binding of the apprentice to be repaid. "Where an order is made directing an apprentice to perform his duties under the apprenticeship, the court may, from time to time, if satisfied after the exjnration of not less than one month from the date of the order tliat the apprentice has failed to comply therewith, order him to be imprisoned for a period not exceeding fourteen days. 7. In a proceeding before a court of summary jurisdiction in relation to a dispute under this Act between a master and an apprentice, if there is any person liable, under the instrument of apprenticeship, for the good conduct of the apprentice, that person may, if the court so direct, be summoned in like manner as if he were the defendant in such pro- ceeding to attend on the hearing of the proceeding, and the court may, in addition to or in substitution for any order which the court is autho- rised to make against the apprentice, order the person so summoned to pay damages for any breach of the contract of apprenticeship to an amount not exceeding the limit (if any) to which he is liable under the instrument of apprenticeship. Tlie court may, if the person so summoned, or any other person, is willing to give security to the satisfaction of the court for the perform- ance by the apprentice of his contract of apprenticeship, accept such security instead of or in mitigation of any punishment which it is authorised to inflict upon the apprentice. Part II. Procedure. 8. A person may give security under this Act in a county court or court of summary jurisdiction by an oral or written acknowledgment in orunder the direction of the court of the undertaking or condition by which and the sum for which he is bound, in such manner and form as may lie prescribed l)y any rule for the time being in iV)rce, and in any case Avhere security is so given, tlie court in or under the direction of which it is given may order payment of any sum A\hicli may become due in pursuance of such security. The liord Chancellor may at any time after the passing of this Act, and from time to time make, and Avhen made, rescind, alter, and add to rules with respect to giving security under this Act. 9. Any dispute or matter in respect of which jurisdiction is given by this Act to a court of summary jurisdiction shall be deemed to be a matter on which that court has authority by law to make an order on complaint in pursuance of tlie Summary Jurisdiction Act (/), but shall (/■) 11 ^ 12 Vict. c. 43, and 42 L 43 Vict. c. 4i>. E:\irLOYERS AND AVOKKMEN ACT. (3*^") not be deemecl to be a criminal proceeding ; and all powers by tliis Act conferred on a court of summary jurisdiction shall be deemed to be in addition to and not in derogation of any powers conferred on it by the Summary Jurisdiction Act, except that a warrant shall not be issued under that Act for apprehending any person other than an apiirentice for failing to appear to answer a complaint in any proceeding under tins Act, and tliat an order made by a court of summary jurisdiction under this Act for the payment of any money shall not l)e enforced by imprison- ment except in the manner and under the conditions by this Act provided ; and no goods or chattels shall be taken under a distress ordered by a court of sunmiary jurisdiction which might not be taken under an execution issued by a county court. A court of summary jurisdiction may direct any sum of money, for the payment of which it makes an order under this Act, to be ])aid by instalments, and may from time to time I'escind or vary such order. Anj' sum payable by any j)erson nnder the order of a court of summary jurisdiction in pursuance of this Act, shall be deemed to be a del)t due from him in pursuance of a judgment of a competent court within the meaning of the fifth section of the Debtors Act, 1869, and may be enforced accordingly [g) ; and as regards any such debt a court of summary jurisdiction shall be deemed to be a court within the meaning of the said section. The Lord Chancellor may at any time after the passing of this Act, and from time to time make, and when made, rescind, alter, and add to, rules for carrying into effect the jurisdiction by this Act given to a court of summary jurisdiction, and in particular for the purpose of regulating the costs of anj- proceedings in a court of summary jurisdiction, with power to 2irovide that the same shall not exceed the costs whicli would in a similar case be incurred in a county court, and any rules so made, in so far as they relate to the exercise of jurisdiction under the said fifth section of the Debtors Act, 1869, shall be deemed to be prescribed rules within the meaning of the said section. Part III. Definitions foul Miscellaneous. Definitions. 10. In this Act— The expression " workman " does not include a domestic or menial servant, but save as aforesaid, means any person who, being a labourer, (g) In Cutler V. Turner (^187 i), u. for breach of contract of service, R. 9 Q. B. 502 ; 43 L. J. M. C. though the appelhint had been 124 ; 30 L. T. 706 ; 22 W. R. 840, previously ordered to fulfil the same the Court held there was a right contract, and to be imiirisoned for under the repealed blaster and ISer- not doing so. See Evans v. Wills vaut Act, 1867 (30 &31 Vict. c. 141), (1876), 45 L. J. C. T. 420. to recover a sum as compensation 636 THE LXIY OF MASTER AND SERVANT. Servant iu husbandry, journeyman, artilicer, handicraftsman, miner, or otherwise eni^^ai^'ed in manual Ldjour, whether under tlie a.Lje of twenty- one years or above that age, has entered into or works under a contract ■vvitli an employer, wlietlier the contract be made before or after the glass- ing of this Act, be express or implied, oral or in writing {h), and l)e a con- tract of service or a contract pei-sonally to execute any work or labour (i). (h) This does away with the effect oi £a)ik-s V. Crosslands (1874), 10 L. R. Q. B. 97 ; U L. J. M. C. 8 ; 32 L. T. N. S. 226 ; 23 W. R. 414. But the section does not atlect the Statute of Frauds. Under the Master and Servant Act of 1867, it was held that a married woman could not enter into a con- tract within the meaning of the Act ; Tomkinsoii v. West (1875), 32 L. T. N. S. 462. But see the MarriedAVomeu's Property Act of 1882, sec. 1 (2). (0 See Grainger v. Ayiislcy note («), wliere Lindley, J., observes : "What the exact meaning of the distinction between ' contract of ser- vice ' and ' contract personally to exe- cute any work or labour ' may be is not quite easy to see. The words may refer to a contract to serve, say for a month, as distinguished from a ' contract ' to execute any work or labour, say to dig a drain. That may or may not be the dis- tinction. ' Manual labour ' is the key- note to it, and, if so, the ajipellants are within it." Lopes, J., observed, in the same case : "I should say that a contract of service is when a man is employed, say, as farm labourer, for three months or one year, and that the other words, ' contract personally to execute any work or labour,' apply to ca.ses where a man is employed to do any specific work or labour." Assist- ance in construing this section may be obtained from the chief decisions under the repealed Act 4 George IV., c. 34, which applied to any servant in husliandry, or "any artificer, calico printer, handicrafts- man, nnner, collier, keidman, pit- man, glassman, ])otter, labourer, or other person." It did not contain the words contract " juTsoiially to execute any work or labour," or tliiir equivalent ; and the Courts reipunKl proof of service, or of a contract to serve. AVrrnix tiik Statutk (4 Geo. IV. c. 34). Ex 2)arte Ormcrod (1844), 13 L. J. N. S. M. C. 73 ; 1 D. & L. 82.5. (A designer who contracted to serve a calico printer for a term of years, and Avliose duty it was to draw patterns, to be after- wards engraved on copper rollers, " an artificer.") In re Bailey (1854), 3 E. & B. 607 ; 23 L. J. N. S. ]\I. C. 161. (Contract to serve as a collier until a month's notice on either side ; wages to be Lv. \Qd. per ton of coals, paid monthly ; evidence of obligation to serve per- sonally.) Exitarlc Gordon (1855), 25 L. J. N. S. M. C. 12 ; 3 W. R. 568. (A journeyman tailor working with others for a master tailor on the premises of the latter ; paid at a certain price per garment. The contract did not extend beyond the job, but, while executing it, the former was bound to work exclusively for his employer.) Wilhtt v. Boo'.c (1860), 30 L. J. N. S. M. C. 6 ; 6 H. & N. 26. (B., a potter, engaged "W. to work for liim as a biscuit oveu- ])lacer, at daily wages for a year. By another agreement of the same date, B. en,t,'aged IJ. to work for liim by liieee-work, ibr the same time, us biscuit oven- fireman. R. paid W. his wages out of the amount earned by R. for piece-work. A con- tract of master and servant subsisted between \\. and "\V., notwithstanding the fact that payments of wages were nuide to W. bv K.) Laurence v. 2'odd (1803), 14 C. B. N. S. 554 ; 32 L. J. M. C. 238. (T., with six other artisans, agreed under a written con- tract to complete an iron ship ; they were to work exclusively for the ap- pellant, but were at liberty to employ skilh'd and unskilled workmen to assist them.) W/iifeley v. Armitage (1864), 13 W. K. 144. (A .stulf- linisher of Italian goods, who worked manually for weekly wages and a com- mission, but whodiiected other work- men.) Not within tiu; Act. — EMPLOYERS AND AVORKMEN ACT. 037 The expression "the Smnmary Jurisdiction Act" means the A(;t of the session of the eleventh and twell'tli years of the reign of her present Majesty, cliapter forty-three, intituh-d " An Act to facilitate the per- formance of the duties of justices of the ]ieace out of sessions within England and Wales with respect to summary convictions and orders," inclusive of any Acts amending tlie same. The expression " court of summary jurisdiction" means — (1.) As respects the city of London, the Lord Mayor or any alder- man of the said city sitting at the Mansion House or Guildhall justice room ; and (2.) As respects any police court division in the metropolitan police district, any metropolitan police magistrate sitting at the police court for that division ; and (3.) As respects any city, town, liberty, borough, ]>lace, or district for which a stipendiary magistrate is for the time being acting, such stipendiary magistrate sitting at a police court or other place appointed in that behalf ; and (4.) Elsewhere any justice or justices of the peace to whom jurisdic- tion is given bj^ the Summary Jurisdiction Act : ])rovided that, as respects any case within the cognizance of such justice or justices as last aforesaid, a complaint under this Act shall be heard and determined and an order for im- prisonment made l>y two or more justices of the peace in petty sessions sitting at some place appointed for hoLling petty sessions. Nothing in this section contained shall restrict the jurisdiction of the Lord Mayor or any alderman of the city of London, or of any metro- politan police or stipendary magistrate in respect of any act or jurisdiction which may now be done or exercised by him out of court. Hardy v. nylc (1829\ 9 11 & C. 603. though hired for less time than a (^Contract to weave certain pieces of year), or between masters and mis- silk goods.) Lancaster v. Greaves tre.sses and artificers, handicrafts- (1829), 9 B. &C. 628. (A. contracted men, miners, colHers, keelmcn, i)it- to build a wall for a certain price, and men, glassmen, potters, and other within a certain time.) E.c parte John- labourers emjiloyed for any certain s. k C. 536, a husbandry," or "other person."') person emploved by an attorney' to Under the repealed 20 Geo. II. c. 19 keep possession of goods seized uiidcr (which gave jurisdiction to justices afi.fa. In E.c parte Htiqhr.s ClShi'^ in disputes between masters and mis- 23 L. J. N. S. ]M. C. 138, a dairv- tresses, and servants in husbandry, maid at a farm, who had also to keep who shall be hired for one year or house and cook for men-servants was longer (extended by 31 Geo. 11. c. held to be within the Act. ' 11, s. 3, to all servants in husbandry. 638 THE LAW OF MASTER AND SERVANT. 11. Ill tlie case of a cliiM, youni,' iici'sf)ii, or woman subject to the provisions of tlie Factory Acts, 1833 to 1874 (/.-), any forfeiture on the ground of absence or leaving work shall not be deducted from or set off against a claim for wages or other sum due for work done before such absence (ir leaving work, excejjt to the auKJunt of tlie damage (if any) which tile em])l()yer may have sustained by reason of such absence or leaving work (/). A2)plication. 12. This Act in so far as it relates to apprentices shall apply only to an apprentice to the business of a workman as defined by this Act ui^on whose binding either no premium is paid, or the premium (if any) paid ■ {k) These Acts are repealed. (I) See as to forfeiture of wages the following cases : Wahh v. JVttlh'tj mid another (IS7 4), L. R. 9 Q. B. 367; 43 L. J. Q. B. 102. (Plaintiff, a weaver, and weekly servant, whose wages depended upon the number of pieces which he wove. The wages were ascertained at noon on Thursday, and paid next Saturday. The rules under which he worked reipiired fourteen days' notice before leaving ; and persons leaving without notice were to forfeit wages due. I5s. were ascer- tained as due on Thursday, April 2.')tli, 1872, at noon ; the plaiutilV woiked on tlie 26th, and earned 7.s., and then left without notice. Held that thei)laintiirhad forfeited thel.o.s'. aiul 7.S-. JFillis V. Thorp (1875), L. K. 10 Q. B. 383 ; 41 L. J. q. B. 137. (See Hosiery Manufacture (Wages) Act, 1874, and p. 384.) Sit tinders v. jniifllc (lS7tJ), 33 L. T. N. S. 816 ; 24 W. It. 406. (Plaintiff hired by the week ; his wages 7d. an hour, pavalile every Saturday at noon. The full week consisted of fifty-four and a lialf hours, ending at 5.30 p.m. on Friday. Overtime i)aid at the same rate. Engagement determinal)l(' by a week's notice on either side. Plaiutilf left without notice on Friday at noon before the week had ended. He had worked fifty-sevi'U hours, including overtime, since the previous Friday. Held that the plaintilf coidd not recover wages for current week on tlie ground that he was engaged by the week, though his wages were coni- imted by the hour.) Sec also lUillini V. Thovqjson, L. K. 4 Q. B. 367 ; Grc'jsony. JVntsoa (1876), 34 L. T. N. S. 143. (A factory winder, paid on Saturday for the sets which she had wound off ilmiiig the preceding week, ending Wednesday night, absented herself from work on Saturday and Monday, after work- ing Thursday and Friday, and doing work to the value of '3s. 7d., and did not return. By one of the rules of the factory, fourteen days' notice was recjuired, and all persons leaving without notice were to forfeit tJie whole of the wages to which they would otherwise be entitled. The County Court Jiulge assessed the damages at 3s., and found that the hiring was a weekly hiring ; held that there were no wages or sum due, the hiring being weekly, and the servant having left without notice.) Warhurlon v. Ilniivorth (1880), L. 11. 6 (,). B. D. 1 ; 50 L. J. Q. B. 137. (A factory weaver, paid by the piece, all work being booked u]) at three o'clock on Wednesday afternoon in each week, and paid tor on Saturday. The cuts which she l.ad completed were, in accordance with the practice of the factoi-y, booked on Wednesday ; the value of the cuts, 13.s'. iiK She returned to her work on Wednesday for a iiuarter of an horir, and then left without giving notice. B}' the lulcs of the factory, fourteen days' notice was necessary, on pain of forfeiture of wages. The justices found that the hiring was weekly, liut the Court of A})peal was of o]iini(in that there was not a weekly liiring; that a sum became . The forms given in the schedule shall be used, with such variations ;is may be necessary to meet the ciicumstances of each court. 29//t AtKjnst, 1877. CAIRNS, C. E3IPL0YEKS AND WORKMEN ACT. 643 SCHEDULE. 1. Summons to Appear. Emploijers and Worhiacii Ad, 1875. In the [coimtij of . Fettij Sc.t>;ions (listrict of .] Between A. B., Plaintiff, [A ddress, description,'] and C. ])., Defendant, [Address, description.] You are hereby summoned to appear on the day of 18 , at tlie hour of in the noon, at , before [tu-o of such justices of the peace for the above- county as might there he\ to answer the plaintiff, to a chxini, the particulars of -which are hereunto annexed. Given unde^my hand and seal this day of 18 . J. 8. (L.S.) To the defendant herein Note.— (This, and all other summonses issucxl under the Employers and AVorkmen Act, 1875, may be signed by the clerk to the justices, where such justices shall, by a f^^eneral direction, authorise their clerks to sign them in lieu of one of themselves). ■ 2. Summons to Witness. Employers and IVorlcmcn Act, 1875. In the \_connt\i of . Petty Sessions District of .] Between A. B., Plaintiff, and C. D., Defendant. You are herebj' required to attend at on , the day of ,187 , at the hour of in the noon, to give evidence in the above cause on behalf of the [plaintilf or defendant, as the case may be]. Given under my hand and seal this day of 187 . J. S. (L.8.) to 644 THE LAW OF MASTER AND SERVANT. 3. JODliMENT FOR PLAINTIFF. Einployers and IJ'orknu'n Act, 1875. Ill the [cotnidi of . Peffn Sessions District of Between A. B., Plaintiff, and C. D., Defendant. It is tins day adjudged that the plaintill" do recover against the defendant tlie sum of £ for deht [or damages], and £ for costs, amounting togetlier to the sum of £ And it is orth'red that the defendant do pay the same to the plaintiff on or before the day of [or by instalments of for every days ; the first instalment to be paid on or before the day of 18 ] ; find if the same be not paid as ordered it is hereby further ordered that the same be levied by distress and sale of the goods and chattels of the said defendant. Given under our hands and seals this day of £ s. d. Amount of debts or damages Costs : — £ s. d. Summons Witnesses ..... This order Total Signatures of tivo of the Justices} J. S. (l.s.) by whom order made. ) J. S. (L.s.) Judgment for Defendant. Employers and IForhnen Act, 1875. In the [county rf , Petty Sessions District of ] Between A. B., Plaintiff, and C. D., Defendant. Upon hearing this cause this day, it is adjudged that judgment be entered for the defendant, anil that the plaintiff do pay the sum of £ for the defendant's costs on or before the day of ; and if the same be not paid as ordered it is hereby further EMPLOYERS AND WORKMEN ACT. 645 ordered that the same be levied by distress and sale of tlie j,'oods and chattels of the said plaintili". Given iiiidi-r our hands and seals this day of , 187 . HicjnutHrcs of tiro of the Justiroi ) J. S. (l.s.) hy ii'hom order mcule. j J. S. (l.s.) JroGJiENT Summons. Employers and JVorkmen Act, 1875, and The Debtors Act, 1869. In the [county of . Petty Sessions District of .] Between A. B., Plaint itf, [Address, description,] and C. D., Defendant, [.4 ddi-ess, description.] Whereas the plaintiff [or defendant] obtained an order against you the above-named defendant [or plaintiff"] in this eourt on the day of , 187 , for the payment of pounds, shillings, and pence [or that you {liere set out the order made, in tlie case of an apprentice, upon him to jierform Jiis dnties)] : And whereas you have made default therein : You are therefore hei-eljy summoned to appeal' ])ersonally in this court at [place u-here court holden] on , the day of , 18 , at the hour of in the noon * to be examined on oath by the court toviching the means you have or have had since the date of the order to satisfy the sum payable in pursuance of the said order ; and also * to show cause why you should not be committed to prison foi- such default. Given under my hand and seal this day of , 187 . J. S. (L.S.) £ s. d. ■^Amount of order, and costs Costs of distress against the goods, if any £ Deduct Paid into court Instalments which were not re- quired to have been paid be- fore the date of the summons 646 THE LAW OF MASTER AND SERVANT. Sum payable Costs of this summons Amount upon the payment of whirh no further proceedings will l)e had until default in paynu-nt of next instalment Tliei)arts v:ithin asterids to he omitted where siivimoits issued against jin a^yprentice under section (5 of Envployers and JVorhnm Act, 1875. Order of Commitmen't. Employers and IVorhmen Act, 1875, and The Debtors Act, 186!). In the [county of . Petty Sessions District of .] Between A. B., Plaintiff, and C. D., Defendant. To the constable of and all other peace oflicers of the county, and to the governor or keeper of the ['prison of the countij to vhich debtors arc committed}. Wliereas the plaintiff [or defendant] olitained an order against the defendant [or plaintiff] in this court on the day of , 18 , for the payment of £ [or, in the case of an apprentice, that he should, &c.] : And whereas the defendant had made default therein : And whereas a summons was, at the instance of the jjlaintiff [irr defendant] duly issued out of this court, by which tlie defendant [or plaintiff] was required to appear personally at this court on the day of , 187 ,* to be examined on oath touchin,^' the means he had then or has had since the date of the order to satisfy the sum then due and payable in pursuance of the order, and * to show cause why he should not be committed to prison for such default : And whereas, at the hearing of the said sunniions, the defendant [or plaintiff] appeared [nr the summons was proved to have been per- sonally and duly served] and * it has now been proved to the satisfac- tion of the court that the defendant [or idaintiff] now lias [or has had] since the date of the order the means to pay the sum then due and payable in pursuance of the order, and has refused [or neglected] [or then refused or neglected] to pay the same, and the defendant [or plaintiff] * has shown no cause why he should not be committed to prison : Now, therefore, it is ordered that, for such default as aforesaid, the defendant [or plaintiff] shall be committed to prison for days^ * unless he shall sooner ])ay the sum stated below as that upon the payment ol which he is to be discharged.* EMPLOYERS AND WOKKMKN ACT. ()i7 These are, llicrefoiv, tn re([uin- you, tlie .said con.stal;le ami peace officers, to take tlie tlefeiidaiit [or plaiutili'j and to deliver liim to the <,'Overnor or keeper of tlie [prison (f/o;Y'sr( iW], and you the said j,'overnor or keejK'r to receive the defendant [or jilaintiff] and liim safely keep in the said prison for days from the arrest under this order, or until he shall be sooner discharged by due course of law. Given under oar hands and seals this [insert date of order of commitmintt] day of ,18. Signatures of two of the Justices bij u-ho7n ) J. S. {L.fi.) order of committal is made. J J. S. (l.s.) £ s. d. *Total sum payable at the time of hearing of the judgment-summons Hearing of summons, cost of this order, and mileage Total sum upon payment of which the j)risoner will be discharged prior to conveyance to prison If conveyed to jirison the conveyance thereto * The parts withia astcrisLs to he omitted icliere order made binder section G of Emiiloyers and Workmen Act, \^lf>. 7. Certificate for the Discharge of a Prisoner from Custody. Employers and JForkmen Act, 1875, and the Debtors Act, 18G9. In the [county of . Petty Sessions District of ]. Between A. B., Plaintiff, and C. D., Defendant. I hereby certify that the defendant [or plaintiff] who was committed to your custody by virtue of an order of commitment under the seals of two justices of this court, bearing date the day of , 187 , has paid and satisfied the sum of money for the non-payment whereof he was so committed, together with all costs due and payable by him in respect thereof ; and that the defendant [or plaintitf] may, in respect of such order, be f(jrthwith discharged out of your custody. Dated this day of , 187 . Clerk of the Court To the Governor or Keeper of 648 THE LAW OF MASTER AKD SEllV.\2s'T. Distress Warrant. Employeri; and Worhnitn Act, 187'). \\\ Wm [county of . I'ettij Sessions District nf ]. Between A. B., PlaintilJ", and C. D., Defendant. "Whereas at a court liolden at on the thiy of IS , it was ordered by the conrt that Jud^'ment should be entered for tlie plaintiff [or defendant], and that the plaintiff [or defendant] should, pay to the defendant [or plaintiff] the sum of £ for debt [or daina<^es] and costs [or the defendant's costs of action] on or before the day of , [or by instalments of for every days, the first instalment being ordered to be paid on or before the day of 18 ]; and that if the same were not paid as ordered, it was further ordered that the same should be levied by distress and sale of the goods and chattels of the said defendant [or plaintiff ] : And whereas default has been made in payment according to the said order : These are therefore to command you forthwith to levy the sum of £ , being the amount due to the plaintifi" [or defendant] under the said order, by distress of the goods and chattels of the plaintiff (except- ing the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of five pounds), together with the reasonable charges for taking and keeping the said distress ; and that you do pay wliat you shall have so levied to the clerk of this court. Given inider my hand and seal this day of 187 . J.S. (L.S.) To the Constable of , and all other Peace Officers in the county. Notice. — Tlie goods and chattels are not to be sold imtil after tlie end of five clear days next following the day on which they were .-eized, unless they be of a perishable nature, or at tlie recpiestof the said defen- dant [o?- plaintifi'] (7i)- (?t) Sec Siniiniiiiy .IiiiisdiL-tioii Act of 1879, ss. 21 k 43. EMPLOYERS AND WORKMEN ACT. (Hi) 9. Undertakixcj in AVriting by Defendant to Perform Contray him in conse([Uence of such breach, and would have ordered him to have paid such sum, but that the defendant was willing to give security for the iierformance by him of so much of the contract as remains unperformed : Now therefore I the undersigned defendant, and we the undersigned sureties [or the undersigned surety], do undertake that the said defen- dant will perform so much of the said contract as remains unperfonued, that is to say [here set out so much of the contract as remains to he 2>er- formed] : And I the said defendant, and we [or I] the said sureties [or surety] hereby severally acknowledge ourselves bound to forfeit to A. B., the plaintift", the sum of luninds and shillings, in case the said defendant fails to j)erform what he has hereby undertaken to perform. (Signed, icJterc not taJccn orally) C. D., Defendant. E. F., I ^. ^ jjjburetus. Taken before me this day of , IS . J. S. (i..s.) Note. — This undertakintj may he rjivcn orally, and inoved hy tlic 2>rodnc- tion of a note of the same made at the time hy the clerk of the court. 10. Order on an Apprentice to perform his Duties. Employers and Workmen Act, 1875. In the [county of . Petty Sessions District of ]. Between A. B., Plaintitf, and C. D., Defendant. It is ordered that the defendant do forthwith perfomi the duties he has contracted to perform under his apprenticeship to the plaintiff. Given under our hands and seals this day of 18 . Siynatures of two of the jmticcs ) J. S. (l-S.) hy ichom order made. ) J. S. (l.s.) 650 THE LAW OF MASTER AND SERVANT. 11. Ohdku Rescinding a Contkact of Apprenticeship. Ill tllO [roirnt>i nf . I'vUtj ,SV.SSiO,/s District of ]. BetwiL'ii A. i>., Plaiiitiir, and ('. D., Defendant. It is adjudged that the [nr tins, iclioi order endorsed on deed of ay- jn-enticeshij)] instrument of apprenticeshi}) made between the idaintilf and defendant be rescinded, and that the plaintiff [or defendant] do jjay to M. K. of the t^um of pounds, beini,' the whole [or a part] of the piemiuiu paid by the said M. N. on the binding of the defendant [or idaintiif] a.s ai)iiientice to the plaintiff [or defendant]. Given under our hands and seals this day of 18 . Siynatures of tiro ofthejustires J J. S. (l.S.) /*// 'ichoiii or 12. 5 oj the justices i J. ►>. (L.S.; der made. ) J. S. (l.S.) Order where Security given eor Performance of Contract by AN Apprentice. Emjjloyers and, IJ'orhiwn Act, 1S75. In the [county of . Fetti/ Sessions JHstrict of ]. Between A. B., Plaintitf, and C. D., Defendant, and E. F., bondsman under the contract of a2)]treiiticeship of the Defendant. Whereas on the day of 18 it was ordered that the defendant should forthwith perforin the duties he had contracted to perfonii under his contract of apj)reiiticeship to the plaintiff : And whereas it hath been made to ap])ear to the satisfaction of the court on the oath of the plaintiff [and of (!. H. of ] that the de- fendant has failed to comjily with the itMiuiivniciits nf the said order : And wliereas by the said failure the delemhint hath rendered himself liable to be CDiiimitled : And whereas E. V. [or R. S. of ] is willing to give security to the amount of pounds for the due performance by the defen- dant of his duties under his said contract of api)renticeship : Now, therefore, the court doth direct such security to be forthwith given, and doth order that if payment of the said sum be not made on the defendant failing to perform his contract such sum may be levied by EMPLOYERS AND WORKMRK ACT. 651 distress of the goods and chattels of the said E. F. [or K. S.j, or an apjdi- cation l)e made to this court for comniitnient of the said E. F. [or R. S.] according to the provisions of this Act. Given under our hands and seals this day of IH . Signatures of tu-o of the just ices M- >'^- (i-.s.) hy lohom order made. ) J. S. (l.s.) 13. Security in Writixo for Performanck of Contract isy an Apprentice. Eiuployers and ll'orhnen Act, 1875. In the [county (f . Petty Sessions District of ]. Between A. B., Plaintiff, and C. ])., Defendant, and E. F., bondsman under the contract of a] •prenticuship of the Defendant. Whereas (jn the day of 18 it was ordt-red that tlie defendant should forthwith perform the duties he had contracted t(; per- form under his contract of apprenticeship to the plaintilf : And whereas it was made to appear to the satisfaction of the court that the defendant had failed to comply with the requirements of the said order : Anil whereas by the said failure the defendant hath lendcred himself liable to be committed : And whereas I, E. F. [or E. 8. of ] am ^villing to and do hereby give security to the amount of pounds fur the due per- formance by the defendant of his duties under the said contract of ap- prenticeship, and do hereby acknowledge myself bound to forfeit to the said plaintilf the above sum in case the said defendant do fail to perform the duties that have been ordered to be performed hy the court. (Signed) E. F. or E. S. Signed before me this day of 187 . J. S. (L.S.) Note. — llie security nnty be given orally, and])rond by tlie irroduction of a note of the same made at tlie time by the cleric of the court. Go2 THE LAW OF JfASTER AND SEKVANT. 14. [Summons to a Bondsman for an Apprentice. Employers and Worhnen Act, 1875. In i\\v [county of . Petty Sessionti JJistrict oj ]. Between A. B., Plaintiff, anil C. D. Defendant. To E. F. of Take notice that you are hereby summoned to attend at on tlie day of 18 , at o'clock in the noon, to show cause Avhy tlie court should not, in addition to or in substitu- tion for any order to be made against the said defendant, order you to pay the amount of any damages wliich it may find that the plaintifl" has suffered in consec^uenoe of the Ijreach of the cuntract of apprenticeship made between you and the plaintiff and the defe)idant. Given under my hand and seal this day of 18 . J. .S. (l.s.) 15. Order on a Bondsman for an Apprentice to pay Damages. Employers and IForhnen Act, 1875. ■♦ In the [county of . Pdty Sesaions District of ]. Between A. B., Plaintiff, and C. D., Defendant, and E. F., bondsman under llic contract of apjn'enti^ieship of the Defendant. It is adjudged that the said bondsman do ])ay to tlie plaintiff, on or Ijefore the day of 18 ? tlie sum of pounds for damages suffered by liim in consequence of the breach of the contract of apprenticeship made between tlie plaintiff, defendant, and the said bondsman ; and if tlie same be not jiaid as ordered, it is hereby further ordered that the same be levied by distress and sale of the goods and chattels of the said bondsman. Given under our hands and seals this day of IS . liiijnaturcs of Uco of the justices \ J. S. (j...s.) hy u-hom order made. \ J. S. (i-.s.) EMPLOYERS AND WORKMEN ACT. 653 IG. Plaint and Minutk Book. ]'Jm}ib>!ii'r.'i ami Workmen Art, 1875. ti o « c; CS-M ^ li -2 fi ., in ling "at his own risk"). Btjnai V. Leach (1857), '26 L. .J. Ex. (d) L. K. 9 Q. H. D. 3.^7 ; 51 L. J. 221 ; and McCau:ln/ v. Fnrnc.ss Jkti/- (,». H. 543: 47 L. T. N. S. 10; 30 vaij Co. (1872), L.' U. 8 Q. H. 57 ; W. U. 797. GoG THE LAW OF MASTER AND SERVANT. circulated auiong them printed conditions, by which all work- men were to be members of the cUib on the existing basis, and no workman, or in any case of death, no person entitled to look to the funds of the society for compensation, would be entitled to sue the defendant. Griffiths read these condi- tions, and continued to work as before, and to pay his subscrip- tion to the club. In an action by the widow, as executrix of the deceased, against the defendant, the county court judge gave judgment for lier, on the ground that the contract Avas void for want of mutuality and consideration, and as being contrary to public policy. On appeal, this decision was reversed, the Court holding that such a contract was not contrar}'' to public policy, and that the widow had no right of action. The ratio decidendi in this case seems to show that em- ployers might contract themselves out of any section or part of the Act ; e.g., they might agree with their workmen that infoi'mation of defects mentioned in sec. 2, sub-sec. 3, be given to a certain specified " superior," and to him only. To support an agreement to give up claims to compen- sation under the Act, consideration of some sort is required; and if the contract Avitli respect to this be in writing, the consideration must be expressed (c). Section 1 gives " the legal personal representatives of the workman and any persons entitled in case of death," "the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work." As stated above, it was decided in Griffiths v. Dudltnj, that the widow of a deceased workman could not sue when the latter had contracted himself and his representatives out of the Act. The principle of Read v. Gt. Eastern Ry. Co. (/), applies to the right con- ferred by the statute. There it was held to be a good plea to an action under 9 & 10 Vict. c. 9*3, by the plaintiff' as widow of («) Chap. X. (/•) (]S()S\ I.. 1?. 3 Q. 15. JiC.'i ; 37 L. J. (,). 15. 278. employers' liability act. 057 a passenger, for negligence which had caused his death, tliat he had in his hfetime been paid, and had accepted, a sum of money in full satisfaction of all claims. ('Ontracts between masters and servants, by which the latter agree to waive the benefits of the Act, need not be in writing ; though, for obvious reasons, it is, in practice, expedient to commit such a contract to writing. It might be concluded b}^ posting up in mills or works printed regulations or notices, provided the workmen saw them before they were engaged ig). A workman who has been injured may lose the benefit of the Act by accepting a sum as compensation for injuries which he has sustained (li) ; on the other hand, he will be deprived of all right to any penalty if he brings an action under the Act for the same cause of action (i). If a servant, who has been injured in circumstances which entitle him to compensation from his master, has been induced by fraud to give a receipt in full discharge, or execute a release, the receipt or release will not be conclusive, and need not pre- vent him from suing. The plaintiff in Lee v. Lancashire d- Yorkshire Ry. Co. (k), had been injured in a collision on the defendants' railway, and gave on October 18th, 1865, a receipt for £400, " in discharge of my claim in full for all loss sustained." On the Gth Nov. of the following year, he com- menced an action for .4iG00, alleging that his injuries were more serious than had been supposed. The receipt which he had given was, in the view of the Court of Appeal, no bar to an action, if the plaintiff could show that it had been given upon the distinct understanding that it was not to be conclu- sive (I). In Jiirschfieldv. London, Brighton, c£- South Coast My. Co. (m), a release under seal had been given ; but it was {(/) Cams V. Eastwood {1S7 5), 32 jured). L. t. N. S. 855. (0 Sec. 5. (/() Addison on Torts, 4 ed. ]>. 46 ; (k) <1871) L. R. 6 Ch. 527 ; 25 L. jrri(i/it V. London General Omnibus T. N. S. 77 ; 19 W. K. 729. Co. (1877), L. E. 2 Q. B. D. 271 (/) See also Stewart v. Great (award of (•mnpensiition by a niagis- Western Ry. Co. (1865), 2 D. J. & trate under li k 7 Vicf. c. 86, s. 28, S. 319. against a driver of cab, bar to action (ni) (1876) L. R. 2 Q. B. D. 1 ; 4& against his employers by person in- L. J. Q. B. 94 ; 35 L. T. 473. 658 THE LAW OF MASTER AND SERVANT. held to be a good reply to a defence founded on the deed that the defendants' officer had induced the plaintiff to execute the release, by fraudulently representing to him that the injuries were of a trivial character, and that if they turned out to be serious, he might obtain further compensation. Insurance. Employers have sought to insure themselves against liabilities under the Act. The usual plan is for an insu- rance company to agree, in consideration of aimual pay- ments varying with the amount of wages and nature of the employment, to indemnify employers against claims under the Act. An employer has an insurable interest, and such contracts are no doubt valid. An insurer who pays an assuree is, as a rule, subrogated to the remedies of the assuree, and this may have important consequences. (1) If the former indemnifies the latter for claims made by a workman injured by reason of the negligence of a foreman, what is the position of the insurer ? The employer might sue his foreman, or the insurer after payment might, in the employer's name, also do so {n). (2.) If the insurer indemnifies the assuree for claims made under sec. 1, sub-sec. 1 of the Act, what is the position of the assuree ? Suppose, for example, that A. purchased a crane from B. warranted to lift three tons. Under a strain of only two tons it broke, and one of A.'s workmen was injured. What is the position of C. the insurer ? The workman would have no rioflit to recover acjainst A. unless A. himself or some one within sec. 2, sub-sec. 1, had been guilty of negligence. A. coiUd not recover from B. in respect of damages which were the result, not of a breach of warranty, but of the negligence of A. or his agent ; and C. would be in no better position (nn). {n) Lcakf! on Contracts, 7.')4 ; May ("") Ofinriton v. McVlcar, (1864), on\ni^\i\-AnCK, ^^i\CummrrcialUniini Macph. 1066. (0. ))aiil daiiiugcs to Assurance Co. v. Lister (1S74), L. K. tlie relatives of a workman killed by 9 Ch. 483 ; /A'Wo« V. ;/'«■< (1863), 3 the breaking of a chain. O. broufjht B. & S. 5('9 ; iShilliiifj V. Accidcnlal an action aj^ainst M. who snpjilietl the Assurance Co. (1858), 1 F. & F. 116. chain. Held, thattheactiondidnotlie). employers' liability act. 659 TJlg Effect of the Act on the Common Law. (1.) The statute does not wholly do away with the doctrine of common employment. It does not affect such decisions as Lovell V. Hoivell (o). It merely specifies certain classes of servants for whoso acts employers are liable to fellow servants. This is clearly affirmed in Roh'tns v. Cuhltt {'p), where a workman who was injured by the improper lowering of a pail failed to recover ; the accident having been caused by the negligence of two fellow workmen not in positions of authority, who were employed to lower the pail. The Employers' Liability Act, said Cave, J., in GrltjUtlis v. Dudley, " provided that in five specified classes of cases, a workman might bring his action as if he had not been a workman, which I take to mean nothing more than this — viz. : that, when a workman brings his action within these five specified cases, the em- ployer shall not be at liberty to say, ' You occupied the position of a workman in my service, and therefore you must be taken to have impliedly contracted to bear the conse- quences arising from the negligence of your fellow workmen in these five cases '".... "In the five cases specified in sec. 1 of the Act, the workman shall not be held to have impliedly contracted to bear those risks " (^?p). (2), The statute does not apply to all servants, but merely to those who are defined as " workmen " by sec. 8 of the Employers and Workmen Act, 1875. Accordingly it does not apply to domestic servants or seamen, or to servants who are not engaged in manual work. Apparently the Act includes all railway servants of whatever grade, and whether engaged in manual labour or not (q). The Act does not seem to affect such decisions as Deg;/ v. Midland Rij. Co. (r). (3.) A workman's remedy at Common Law for injuries sus- tained in circumstances described in Chapter XXIX. is not (o) (1876) L. R. 1 C. P. D. 101. "workmen." As to the liability of (])) (1881) 46 L. T. X. S. 535. infants who are eni]iloyers for tort-^, I])})) 47 L. T. p. 19. see llurnnrd v. Haqqis, 14 C. l'>. N. (q) Sec. 8. S 45 ; 32 L. J. C.'r. KS9 ; Walley (r) (1857) 26 L. J. Ex. 171. v. Holt (1876), 35 L. T. 631. Infants are within the delinition of T T- 2 600 THE LAW OF MASTER AND SERVANT. abolished. No doubt the terms of sec, 1 are unqualified ; in the cases therein mentioned they appear to do away entirely with the doctrine of common employment. But, having regard to the other sections of the Act, and especially to the frequent recurrence of the phrase " under this Act," it is conceived that sec. 1 applies only to actions brought under the statute (s). (4.) The statute merely places a workman in the same position as if he " had not been a workman of nor in the service of the employer, nor engaged in his work." Conse- quently all defences of which an employer might avail him- self if a stranger were to sue him are open to an employer in resisting claims under the Act. (A.) One of these is con- tributory negligence. This has already been mentioned in Chapter XXVIII. ; and it is enough to refer to such cases as lladley v. London and North Western My. Co. (t^, and flattery v. Dublin, Wicldoiv, ii-c., Ry. Co. (ii). (b.) Ac- ceptance of the risks of employment is another defence. See as to this, Woodley v. Metropolitan Ry. (x). (c.) A third defence is the fact that a servant who was negligent was not acting within the scope or sphere of his duties (y). (D.) The framers of the Act have defined the position of workmen by reference to an indefinite standard. They do not seem to have sufficiently borne in mind that several classes of persons with different rights are com- prised in the negative description, " as if not w^orkmen, &c." To trespassers who know the existence of defects in machinery or dangers, there may be no liability, even if such defects or dangers are known to the persons upon whose property they trespass (s). Servants are at Common Law (.v) Campbell's edition of Frasor's I.. T. 440 ; Corhi/ v. Hill (1858), 4 Law of jMastcr and Servant, p. 173. V. 1>. N. S. H.'jG. (<) (187<;) L. ]!. 1 Ap. ('. 754 ; 4G (y) See Cliap. XXVIII. L. J. (ui. (~) Deip) V. Ml'/lan,l h'l/. Co. (1857), (u) (1378) L. K. 3 Ap. ('. 1155; 2(J K.v. "171. Sec J/otl v. WiUrs Ellis V. L. B. wicc(lS77), 31 L. J. Ex. 201 ; Gautret v. Ecicr- L. K. 2 C. P. 1). 308, and Heaven v. ton (1867), L. R. 2 C. P. 371 ; Fender (1882), L. R. 9 Q. B. D. 302 ; Sullivan V. Waters (1864), 14 Ir. C. 30 AV. R. 749. L 4(30. (c) See sec. 8, and the expressions \h) (1851) 16 Q. B. 326 ; 20 L. J. used in sec. 1 and sec. 5 to denote Q. B. 327. persons entitled in case of death. (J02 THK LAAV OF IM ASTER AND SERVAKT. in an Act intended to extend it; to define words not iu the Act, and not to define ambiguous phrases which are there (/). But, apparently, the main effect of the Act is this : standing by itself sec. I, sub.-sec. 1, places a Avorkman in the same position as the plaintiff in Indei^iaur v. Dames. This is qualified by sec. 2, sub.-secs. 1 and 3. The effect of the first part of sec. 2, sub.-sec. 1, is, apparently, null. It repeats the Common Law ; there being no doubt that, apart from the Act, an employer is liable to servants for injuries caused by defects in machinery, arising from or not dis- covered or remedied, owing to his own negligence. The second part of sec. 2, sub.-sec. 2, overrules the cases in which employers have been absolved from responsibility for the negligence of their foremen in regard to plant or machinery. Sec. 2, sub.-sec. 3, introduces a qualification to sec. 1, sub.-sec. 1. Holmes v. Clarke (h), and Holmes y. Worthing- fon (i), show that a servant's knowledge of defects or dangers is not, as a matter of law, an answer to an action against an employer. Sub.-sec. 3 makes such knowledge and failure to communicate within a reasonable time to the employer or "some superior," as a matter of law, an answer to an action under the Act. The alteration made by sec. 1, sub.-sec. 1, of the Act, it is submitted, is not so large as might at first blush seem to be tlie case. A workman is in no better position than a person who is not a workman, but who is on premises upon invitation ; and to rebut the defence of acquiescence it would not suffice for the latter to com- municate with " some person superior," but with some one who was the agent of the employer to receive sucli communications. Sec. 1, sub-sec. 2, does away with the effect of decisions in which employers have not been made answerable for the if) See page 665. 81 L. T. Ex. 356. (h) (1862) 30 L. J. Ex. 135 ; and (/) (1861) 2 ¥. k F. 533. employers' LIAlilLITY ACT. 003 negligence of persons in autliority uiid not ordinarily em- ployed in manual labour (l). Sec. 1, sub-sec. 8, alters the Common Law by making the employer answerable for the negligence of those who have not general superintendence, and who may be engaged in manual labour. Sec. 1, sub-sec. 4, is in itself obscure, and it is made still more so by sec. 2, sub-sec. 2. The first part of the former contemplates the case of A. doing or not doing something in obedience to the rules or bye-laws of the employer B., and C. a workman, being thereby injured. It is conceived that a stranger injured in such circumstances could recover if the injury Avere the natural consequence of such act or omission. But the statute appends two qualifications to a workman's right of action. The injury must result from some impropriety or defect in the bye-laws — which, however, is, perhaps, only another way of saying that it must be the natural consequence of obedience to the rules or bye-laws. Secondly^ a really improper or defective rule or bye-law will, for the pur- pose of the Act, be proper and not defective if approved or accepted as stated in sec. 2, sub-sec. 2 ; a jDroviso which makes the position of the workman under the Act worse than it is at Common Law, for an employer would be answerable for accidents due to defective rules or bye -laws which he had negli- gently prepared (n). The second part of sec. 1, sub-sec. 4, mentions "particular instructions." This may mean instructions which are a repe- tition of the orders of the employer ; the person delegated being only the mouthpiece of the employer. In this view, it is conceived, the Act merely repeats the Common Law. Or "particular instructions" may mean instructions given by one who is entrusted with authority to use his discretion in giving instructions on a particular occasion ; in which case the sub- section apparently only deals with instances of the rule laid down in sec. 1, sub.-sec. 3. (I) See Jf'ihon v. Merry, L. 1!. 1 {n) Vose\. Lanm shire A- Yorkshire S . & D., p. 338. Ry. Co. (1858), 27 L. J. Ex. 249. G(i4 THE LAW OF MASTER AKD SERVANT. 43 & 44 VICT. c. 42. Arrangement op Sections. Sections. 1. Amendment of law. 2. Exceptions to amendment of law. 3. Limit of sum recoverable as compensation. 4. Limit of time for recovery of conipensation . 5. ]\Ioney payable under penalty to be deducted from compensation under Act. 6. Trial of actions. 7. Mode of serving notice of injury. 8. Definitions. 9. Commencement of Act. 10. Short title. An Act to extend and regulate the Liahility of Emi)lo]jers to make Compen- sation for Personal Injuries suffered hj IForlmen in their Service. [7th September, 1880.] Be it enacted by the Queen's most Excellent Majesty, liy and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, tmd by the authority of the same, as foUoAvs : 1. Where after the commencement of this Act personal injury (o) is caused to a workman (^j), (1.) By reason of any defect (7) in the condition of the ways (?•), (o) Injury to the person of the Timrs, Nov. 15, p. 4 (sonietliiiig woikniau iis distins"isheJ from in- casually thrown or put upon a ti-ani- jury to property. It would not in- way not a "detect."') Hwxam v. elude the case of a workman whose Thorns, L. T., Jan. '1%, 1882, p. tools were destroyed, or, probably, 227 ((,)u('eu's Iknch Division), and claims by executors for " damaf,'c to the following cases in County Courts : the estate" of deceased. i>vv. l'ullhi(/ Lavqham v. Yoviiii, L. T., July 30, V. Great Easier a Jiy. Co. (1882), 9 1881, p. 233 ; Whittahr v. Jlahn- Q. 13. D. 110 ; 30 W. K. 7li8. forth, L. T., Sept. 10, 1881, ]). 327 ; (p) See sec. 8. Topham \. Goodwin, L. T., Nov. 5, {q) This is controlled by the 1881, p. 10. words at the end of the .section. "As (r) As to meaning of ways, "see if the workman had not been," &c., Beaufort v. Bates (1862), 3 De G. F. and also by sec. 2. See McGifJin v. & J. 381. Palmer's Iron Shijibuildinrj Co., EMI'LOYEUS LIABILITY ACT. 6G5 works, machinery, or plant (s) conuectcd with or used in tin; business of the employer (<) ; or (2.) By reason of the negligence («) of any person in tlu; service of the employer who has any sujierintenilcnce entrusted to him (y) whilst (.-j) in the exercise of such superintenarticular man, not to tlie custom of the trade or the ordinary coiu'se of business. See Bonttcriti/if v. J)cnvn- inq, L. T., April 15, 1882, p. 424 ; Snuth V. Loftus, L. T., July 22, 1882, p. 220 ; Oicens v. Maitdslay (Q. B. D.), L. T., Feb. 25, 1882, p. 299. {z) ] t is important to know whether 6GG THE LAW OF MASTER AND SEUVANT. (3.) By reason of tlu' ncLjligeiice of any person ill the sendee of the enipkiyer to wliose orders or directions the workman at the time of the injury Avas l)ound to conform («), and did conform, uhere siicli injury rt-sulted from his having so con- formed ; or (4.) By reason of the act or omission of any person in the seivice of the emploj^er done or made in obedience to the rules or bye- laws (c) of the employer, or in obedience to particular in- structions ((/) given by any person delegated with the au- thority of the employer in that behalf (e) ; or (5.) By reason of the negligence of any person in the service of the employer who has the charge (/) or control of any signal, points, loconn)tive engine, or train (;/) upon a railway (/(), this refers to the time when, or tlii' character or capacity in Avhicli, the negligence was conmiitted. Mr. Campbell, in his edition of Fraser's Law of Master and Servant, p. 2"i9, says: "The employer woidd he liable if a sni)erinten(lent of a mine negligently allows the miners to smoke and an explosion ensues, but not if the sni)erintendent himself is guilty of the oti'enee." See Owens y. Muudday. This sub-sect, would probablj' ex- tend to the case of a wurkman over whom superintendence was not di- rectly exercised. (a) Lulling \. U'chh, I,. T. Feb. 4, 1882, p. -247. Orders to do sumething distinctly perilous and hazardous, and out of the .scope of a servant's em- ployment, would therefore be oiitside the Act : Prirstlcy v. Fvwlcr, 3 M. & W. 1 ; Addison on Torts, 4th cd. 397. {(•) For example, Petroleum Act, 34 ct 2,5 Viet. c. 105, s. 4 ; Coal Mines Regulation Act, 35 k 36 Vict, c. 76, .ss. 51 — 59 ; ]\letalliferous Mines Act, 35 & 36 Vict. c. 77, .ss. 23—30 ; Explosives Act, 38 ct 3!) Vict. c. 17, ss. 35—37; Alkalis Act, 44 & 45 Vict. c. 37, s. 20. {(I) See page 662. (c) Sec ])age 662. (/) In Cox V. The dreed Wester tt Ry. Co. (see note (.7) ), th(^ jury found as a fact that H., a "ca])stan man," in tlie eniployineiit of the defendants — that is, a man, who, by means of a capstan, to which motive power was imparted by a fixed hydraulic engine, could put a train of trucks in motion — was "in charge" of a train. The County Court judge ruled that H. had not "the charge or control ; " but the Queen's Bench Division decided that this was wrong. In Hcnislrr v. Tlte Greet f Western Ry. Co., Dec. 17. 1 881, 1 7 L. T. p. 120, the (Jueen's liench Division declined to interfere with a decision of a county court judge, who held the defendants liable for the negligence of a fireman of an engine. ((/) A "train" being, to quote AVebster's Dictionary, "a continuous line of cars on a railroad," woidd in- clude a number of carriages without a locomotive. In Co.r v. Great Western Ry. Co. (1882). L. W. 9 Q. B. D. 107 ; 30 W. 11. 816, Mathew, J., said with reference to a contention that a number of trucks placed in a goods station to be un- loaded, was not a train, that, in his ojiinion. a locomotive was not essentiid. {li) This would, no doubt, include a private railway. It has not yet been decided whether the term in- cludes tramways. As defined in " Welister and Latham's Johnson," it would in(dude a tramway. The objection to this view is that railways and tramways have been dealt with Ijy I'arliamiMit in different Acts ; that in the General Tramway Act (33 & 34 Vict. c. 78, .ss. 25 anir26), " tram- way " is used in contrast to railway ; that the reference in the sub-section EMPLOYKKS' LIAIJILITY ACT. GG7 the workinaii, or in case the injury results in death, the legal personal representatives of the workman, and any persons entitled in case of death (i), shall have the same right of compensation and remedies against the employer as if the workman had not heen a workman of nor in tiie ervice of the enrployer, nor engaged in his work (i). 2. A workman shall not be entitled under this Act (/.:) to any right of compensation or remedy against the employer in any of the following cases ; that is to say, (1.) Under suh-section 1 of section 1, imless the defect therein mentioned arose from, or had not been discovered or remedied owing to the negligence of the emjjloyer, or of some person in the service of the employer, and entrusted by him with the duty of seeing that the Avays, Avorks, machinerj', or plant were in proper condition. (2.) Under sub-section 4 of section 1, unless the injury resulted from some impropriety or defect in the rules, byelaws, or in- structions therein mentioned ; provided that where a rule or byelaw has been approved or has been accepted as a proper rule or byelaAv by one of Her Majesty's Principal Secretaries of State, or by the Board of Trade or any other deiwrtnient of the Government, under or by virtue of any Act of Parlia- ment, it shall not be deemed for the purposes of tliis Act to be an improjier or tlefective rule or byelaw (/). (3.) In any case where the workmen know of the defect or negligence which caused his injury, and failed Avithin a reasonable time to gi\'e, or cause to be giA^en, information thereof to the em- jiloyer or some i)erson superior to himself in the serAnce of the employer, unless he Avas aAvare that the employer or such superior already kneAV of the said defect or negligence (m). to "locomotive engine," is against knew." There is no definition of this view; and that the legislature "sniirrior ;'" but it is submitted obviously intended in tlie Enijiloyeis' that it does not mean any person Liability Act to deal specially with superior in the sense of having higher raihvays (sec. 8). Avages. {{■} The chief Acts regulating the In McJ/onagJe x. Balrd tfc Co. rights of personal representatives in (Dec. 17, 1881), 9 R. 364, a miner case of death are to be found in recovered under tlie Act for an injury Appendix A. As to the Avords "as caused by the falling in of the roof if tiie workman," &c., see Gn'Jidisv. of a main roadway. The uversmau Dudley, page (559, supra, had caused it to be partially .secured, (k) See page 659. As to the onus and told the miner to go on with of negativing the exceptions in sec. his work. Though not thinking it 2, see Grand Junction Jl>/. Co. v. .suJficiently propped, the miner con- JVhite (1841), 8 M. & "W. 214. tinned to" work, in the expectation (/) See page 663. that more men would return and (m) The sub-section does not run complete the prop]iing. The Court "unless the employer or such superior of Session thought he was entitled already knew," kc, but "unless he to bring an action, although he had (the Avorkman) Avas aware that the continued working Avith knowledge employer or such superior already of the danger. " If there is a known 668 THE LAW OF MASTER A'SD SERVANT. 3. The amount of compensation recoverable under this Act shall not exceed such sum as may be found to be equivalent to the estimated earnings, during the three years preci-ding the injury, of a person in the same grade employed during those years in the like employment and in the district in which the -workman is employed at the time of the injury (n). 4. An action for the recovery' under this Act of coni])eusation for an injuiy shall not be maintainable unless notice («) liuit injuiy lias danger which anyone could see, that is one thiug. ]5ut wlieu he has reported a danger, and liis report has been so far acted u}ion as to have the thing complained of made practically secure, and it has turned out that the oversman was wrong and the place Avas not secure, it would be a hardship, and it wonld be oppression to make the man suli'er.'' Lord Justice Clerk. («) See page 678. (o) Notice is a condition precedent, and no exception is made, except in case of death even wliere the full ell'ect of the injury is not detected mi til after the expiration of six weeks. A curious r(!sult seems to follow : — If A. is in- jured and six weeks expire without notice being given, no action is niain- tainahle ; if he subsequently dies, the right of action revives. In Moyh v. Jenkins (Dec. 6, 1881), L. K. 8 Q. B. T). 116, 51 L. J. (). B. 112 ; .30 W. 1!. 3'24, it was lield that tlie notice must be in writ- ing, though tlie employer had arrived on the spot after tlie accident took place, and liad ;issistetl and given moniy to the plaiiitiif, and tliough within six weeks tlie defendant re- ceived a letter written for tlie plaintilf l)y the matron of the hospital, in which it was said, "I beg to inform you that it was found necessary to ain])utate the right arm of Alfred Moyle to-day, and lie is getting on as well as can be expected." " The terms of sec. 7," observed Grove, .1., "can- not icfcr to a verbal notice. All tlic provisions as to .servici^ through tlie post, &c., would be Useless if verlial notice would sudicc. Thisisnotaques- tion of 'defect or inaccuracy' in tin; notice. The letter mentioned in tin; case docs not come in any respect within sec. 7, and indeed it was not contended that it did. Then can it be said that sec. 4 contemplated a verbal notice sucii as a workman say- ing to his eni])loyer, ' I have broken my arm,' when sec. 4 merely refers to the time within which notice must lie given, and sec. 7 contains all the re- quirements of a written notice ' It has been argued that sec. 7 is immaterial if verbal notice is given. But I can- not separate sec. 4 from sec. 7, and thereby make sec. 7 almost if not wholly useless. The Act has, for good reason, recjuired notice to be given, to jiri'Vent frivolous actions, and to enable the employer to ascertain wliether he is really liable,or whether there has bei-ii an injury at all, or whether the claim is fraudulent. The proviso in sec. 4, for dispensing with notice in case of death, seems to show that the case of death is the only one in wliiili notice is not necessary to tlie maintenance of the action." In the same case, Lopes, .1 . , observed : "A letter was sent in this case, but the learned counsel for the plaintiff rightly ad- mitted that he could not rely on it as a written notice." In Keen v. The MlUicall JJoe/c Co. (Marcli If), 1882), L. K. 8 Q. B. D. 482: 51 L. .1. (.>. lb 277 ; 4G L. T. N. S. 472 ; 30 W. R. 503, the above decision as to the necessity of a written notice was ap- proved. An accident occurred to tlie ])laintiff on the31st Way, 1881, and a veibal icjiort of it was made the same day by tiie ]ilaintiif to the defendants' inspector, wlio took down in writing the details, and afterwards, on tlic; same day, sent a memorandum of them to the .superintendent of the defendants. On the 7tli .June the j)lainli(rs solicitor wrote to the secre- tary of the defendants the following letter : — EMPLOYKRS LIABILITY ACT. GGO l)eon suj^taineil is given within six weeks, ;uul tlie action is commenced ■within six months from the occnrrence of tlie accident causing the injury, or, in case of death, within twelve months from tlie time (jfdeatli : Pro- "llhJioir, 1881. *' Sin, — I am instructed by (Jeorge Keen, of 136, Khodeswull Koad, Limehouse, to apply to you for com- pensatiou for injuries received at your dock, particulars of which have already hecu communicated to yom- superintendent. I sludl l)c ghul to hear from you on the subject. " Yours faithfully, (Signed) -'Hknuy Bkadlf.y." The ( 'ourt held that this was Tint a sufficient notice, niul nonsuited the plaintitf. .V new trial was refused l)y the (>uoen's T»ench Division. On appeal to the Court of Appeal, Cole- ridge, C. J., said, with reference to the 7th section, "The words there are apt only to a written notice, and it is clear, I think, that that section cannot lu' fairly fullilled, except l>y the notice Ix'ing in writing. It has been argued ^tliat a notice to satisfy this enactment can be made l)y a reference in it to some other docu- ment. In my opinion it cannot. If the letter relied on in this case had referred to some written document in which the nature and particulars (;f the [injury were given, it would not, I should have thought, have becrx a compliance with the Avords of this enactnifut, which describes the notice as one and single, containing in it the incidents which the statute has re(|uired it to contain as a condi- tion precedent to maintaining anj- action."' Brett, L. J., said: "It seems to nie that there must be a notice in writing of the injury sus- tained, that it must be served on the em]ployer, and given within six weeks from the oeeurrence of the accident, that it must be a notice that iiijuiy has been sustained, and must contain certain partieulars, such as the cause of the injury, and date at which it was sustained. It must give also the name and address of the jierson in- jured, liut it need not be signed by anv one. However the notice under this Act is not to be deemed invalid by reason of any defect or inac(;uracy uidess tli(! Judge who tries the action is of opinion that the defendant is prejudiced Ity it, and that the defect or inaccuracy was for the purpose of misleading. It seems, therefore, to me tliat a notice might be available evt'n if it should be defective in any of the matters re(piired to be stated, as for instance, if it did not in terms name the day when the injury Avas sustained, butshoAved it by reference, so also if it did not descrilie the cause of the injury with sullicient particu- larity, but still did not describe it so as to mislead. I agree that as a general rule the notice must be given in one notice, but I am not prepared to say that it would be fatal if it were contained in more than one notice." Holker^ L. J., also declined to ex- press an opinion that the notice must be in one document. In Stone v. Ifi/dc (Ainil 3, 1882), L. II. 9 Q. B. D. 76 ; 51 L. J. Q. B. 452 ; 46 L. T. IST. S. 421 ; 30 W. B. 816, the alleged notice was as follows: — "JMr. Stone, of 193, St. George's Eoad, Peckham, has con- sulted me respecting the injuries sustained by him wdiile in your em- ploy on the 19th of November last, and also respecting the improper manner in which he was discharged by j'ou. He is now, and has for some time past been, under medical treat- ment at ( Juy's Hospital as out jiatient, particularly for the injur}' to his leg, and has been unable to i>arn anything, and will be so for some tinu? to come. " I shall be glad to know if you care about your medical man seeing him, and what you ]n"opose to do in the matter. (Signed) "AV. H. Matthews.' The County Court Judge held that this was not a suliicient notice, and that the defect was not a "defect " or " inaccuracy '' within sec. 7. The Queen's 1 jench Division, however, took a dilferent view. The County Court Judge "has here found that this defect is such as woidd prejudice the defend- 670 THE LAW OF MASTER AND SERVANT. vidod always, that in rase of dcatli the want of such notice shall be no liar to the maintenance of such action if the judge sliall be of opinion that there was reasonable excuse for such want of notice (j)). o. There shall be deducted from any compensation awarded to any ■workman, or representatives of a workman, or persons claiming by, under, or through a workman in respect of any cause of action arising under this Act, any penalty {q) or part of a penalty which may have been paid in pursuance of any other Act of Parliament to such work- man, I'epresentatives, or persons in respect of the same cause of action ; and where an action has been brought under this Act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman, for compensation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action, such workman, repre- sentatives, or person shall not be entitled thereafter to receive any penalty or part of a penalty under any other Act of Parliament in respect of the same cause of action. 6. — (1.) Every action for recovery of compensation imder this Act shall be brought in a county court, but may upon the application of either plaintiff or defendant, be removed (r) into a superior court in like manner and upon the same conditions as an action commenced in a county court may by law be removed (.s). (2.) Upon the trial of any such action in a county court before the judge without a jurj' one or more assessors may be appointed for the purpose of ascertaining the amount of compensation. ant in his defence, and must have trial on the ground that the defendant Ijeen made for the imrposc of mislead- had been informed of the accident by ing ; but there was no evidence before his own foreman, was refused, him at all, so that it is not possible 0*) In Macoj v. Hodson, L. T., for him to fuid as a fact that it was Dec. 24, 1881, p. 140, the County for the purpose of misleading." Court Judge lield that tlie fact of In (Jlarksuii v. Musgrave (1882), the defendant having tluee times L. R. 9 Q. B. D. 386 ; 51 L. J. pronused compensation, was not a r Court ; note («) ) an application for a new application refused). employers' liability act. 071 (3.) For tlie purpose of re^'ulaling the (;oii(lition>^ and mode of appoint- ment and remuiKMiition of such assessors, and all matters of procedure relatin<^ to their duties, and also for the ]iurpose of consolidatinj,' any actions under this Act in a county court, and otherwise preventing multiplicity of such actions, rules and retaliations may be made, varied, and repealed from time to time in the same manner as rules and retal- iations for regulating,' the practice and procedure in other actions in county courts. " County court " shall, with respect to Scotland, mean the "Sheriff's Court," and shall, with respect to Ireland, mean the " Civil Bill Court." In Scotland any action under this Act may be removed to the Court of Session at the instance of either party, in tlie manner ])rovided by, and subject to the conditions 2)rescribed by, section nine of the Sheriff Courts (Scotland) Act, 1877. In Scotland the sheriff may conjoin actions arising out of the same occurrence or cause of action, though at the instance of different parties and in respect of different injuries. 7. Notice in respect of an injury under this Act shall give the name and address {() of the person injured, and shall state in ordinary language the cause of the injury and the date at which it was sustained, and shall be served on the employer, or, if there is more than one employer, upon one of such employers. The notice may be served by delivering the same to or at the residence or place of business of the person on \\hoin it is to be served. The notice may also be served by post by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business (u) ; and, if served by post, shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post ; and, in proving the service of such notice, it shall be sufficient to prove that the notice was properly addressed and registered. Where the employer is a body of persons corporate or unincoiporate, the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or, if there l)e more tlian one office, any one of the offices of such body. A notice under this section shall not be deemed invalid 1)y reason of {t) Brigrfs v. Jloss (1808), L. E. box in tlic yard used liy the foreman. 3 Q. B. 268. Tlie Court laid it down that "a (v() \n Adams w. Night hujaJe,' Lain notice under the Act must be deli- Timcs, April 15, 1882, p. 424, the vered in such a luanncr that it is Court were of opinion that a notice reasonable to expect that it will come had been improperly served which to the defendant's knowledge in the had been left at the defendant's jilace ordinary course of business." See R. of business out of business hours, and v. Frccmnn of Leicester (1880), 15 Q. not in the letter box, but in a wooden B. 671. 672 Tllli: LAW OF JIASTKll AND SERVANT. any defert or inaccuracy lliorcin, unless the judge avIio tries the action arising from the injury inentionod iu tlie notice shall be of ojnnion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the inirpose of misleading. 8. For the purposes of this Act, unless the context otherwise ret lu ires, — The expression " person who has superintendence entrusted to him " mealis a person whose sole or priucii)al duty is that of superintend- ence, and who is not ordinarily engaged in manual labour : The expression " employer " includes a l)ody of i)ersons cori)orate or unincorporate : The expression " -workman " means a railway servant and any person to whom the Employers and Workmen Act, 1875 {x), applies. 9. This Act shall not come into operation until the first day of .January one thousand eight hundred and eighty-one, which date is in this Act referred to as the commencement of this Act. 10 This Act may be cited as the Employers' Liability Act, 1880, and shall continue in force till the thirty-first day of December one thousand. ei"ht hundred and eighty-seven, and to the end of the then next Session of Parliament, and no longer, nnless Parliament shall otherwise deter- mine and all actions commenced under this Act before that period shall be continued as if the said Act had not expired. The Col-nty Court Rri>i;s, 1880. 1. These rules may be cited as "The County Court Eules, 1880,"' or each rule may lie cited as if it had been one of " The County Court Rules, 1875 " and had l)een numbereil therein by the number of the order and rule placed in the margin opposite each of these rules. 2. An order and rule referred to by number in these rules shall mean, the order and rule so numbered in " The County Court Rules, 1875." (3;) See part 11. ill. XIV. "Work- s. 11. P.ut section 11 ucMs, ".such mnu" includes "woman," 13 & 14 repeal .shall not, in tlic ab.sence of any Vict e 214. The Employers' enactment to tlie contrary, extend to f iah'ilitv Act ilocs not extend to or allect any provision contained in \vorlcmen in the .service of tlie Crown, any otlier Act of Parliament passed, which is not mentioned in it. Max- or to he passed, whereby workman is well on Statutes," p. 112. defined by refenmco to the persons to Seamen and apprentices to the sea whom the I'.mploycrs and Workmen service were expressly exelud.;d from Act, 187r., api)lies."_ It follows that the operation of the Employers and seamen are not within the Employers Workmen Act, 1875, by .sec. 13. Liability Act. Tliis was n-pualed by sec. 11 of the As regards apprentices, .see sec. 12 McrcliantSeamen ( Tavinent of Wages. of Employers and Workmen Act. &c.) Act, 1880, r.i & 41 Viet. c. K,, employers' liability act. CT-'^ Order XXXIXA. The E.MrLOYKR;^' Liaiulitv Act, 1880. Service (if Suiiviiwiis. 13. A siuinnons in an action ln'ouglit inuU'V the provisions of tlio Emi)loyci'.s' Liability Art, I't^S^'i, wIutc it is to Le served in the home district, shall be delivered to the bailiff thirty-two clear days at least, and where it is to be served in a foreign district, thirty-five clear days before tlie return day, but it shall in either case be ser\ed thirty clear days before the return day thereof. 14. Particulars of demand .shall Ijc filed by the plaintitt' at the time of the entry of the plauit, whatever the amount claimed may be ; and a copy thereof shall be forthwith sent to the judge. 15. The particulars of demand .shall .state in ordinary language the cau>e of tlie injuiy, and the date at which it was sustained, and the amoruit of compensation cUiimed, and where tlie action is brought by more than one plaint! If, the amount of compensation claimed by each plaintirt", and where the injury of which the plaintifi' complains shall have arisen by reason of tlie act or mnission of any jierson in the service of the defendant, the jiarticulars diall give the name and descrijition of such person. J«r,j. IG. Notice of a demand for a jur^- shall be given in writing to the registrar of the Court fifteen clear days at least before the return day, and the summonses to the intended jurors shall be delivered to the bailifl" forthwith. Assessors. 17. Any person who shall, as hereinafter provided, be appointed liy the judge to act as an as.sessor in the action, shall be qualifieil so to act. 18. "Where no demand for a jury shall ha\e been made, a jiarty who desires assessoi-s to be appointed shall, ten clear days at least before the return daj', file an ajiplication. accf)rding to the form in the schedule, stating the number of assessors he ])roposes to be appointed, and the names, addresses, and occupations of the persons who may have expressed theii" willingness in writing to act as assessor.?. If the applicant has obtained the consent of the other party to the persons named being appointed, he shall file such consent with his application. 19. Where the application for the apjiointment of assessoi-s has been made Ijy one party to an action only, the registrar shall forward the application so made to the other party who may then either file an application for assessors, or file objections to one or more of the persons proposed. 674 THE LAW OF PIASTER AND SERVANT. 20. Where separate applications are tiled by the parlies, no objection to the persons proposed shall be made by either party, but tlie judge may appoint from the persons named in each application one or more assessor or assessors, provided that the same number of assessors be appointed from the names given in such applications respectively. 21. The applications for tlie appointment of assessors, together with any objections made to the persons proposed, shall be forwarded by the registrar to the judge. 22. Where the judge shall grant the application for the appointment of assessors he shall appoint such of the persons proposed for assessors as he maj" think fit, subject to the provisions hereinbefore or hereinafter contained in this ordc'r. 23. In any action where no demand for a jury has been made, and an application for the appointment of assessors has been filed, the judge may, either before or at the return day, nominate one or more additional persons to act as assessor or assessors in the action. Where no applica- tion for assessors has been made, the judge may, if he think fit, appoint any one or more persons to act as assessor or assessors in the action before or at the return day. 24. If at the time and place appointed for the trial all or any of the assessors appointed shall not attend, the judge may eitluT proceed to try the action with the assistance of such of the assessors, if any, as shall attend, or he may adjourn the trial generally, or upon any terms which he may think fit, or he may appoint any person who may be available and who is willing to act, and who is not objected to or who if objected to is oljjected to on some insufficient ground, or the juilge may try the action without assessors if he shall think fit. 25. Every person nominated as an assessor shall receive for each day's attendance in every action the sum of two guineas, together with such further sum, if any, for his expenses as the judge may order. 26. Every person rei^uiring the judge to be assisted by assessors shall at tlie time of filing his application deposit with the registrar the sum of two guineas for each assessor proposed, and such payments shall be con- sidered as costs in the action, unless otherwise ordered by the judge. Provided that where a ])eis(in proposed as an assessor shall have in wi'iting informed the registrar that lie does not reciuire his remuneration to be so deposited, no deposit in r^'spect of such person shall be reiiuiri'd. 27. Where an action shall be tried by the ju(lge with the assistance of any assessors in addition to or independently of any assessoi-s proposed by the parties, the remuneration of such assessors shall bi- bor)ie by the paities, or either of them, as the judge shall direct. 28. If after an assessor has been ai)pointed the action shall not be tried, the judge shall have; pt)wer to make an allowance to him in respect of any expense or trouble which he may have incurred by reason of liis appointment, and direct the jiayment to be made out of the sum deposited for his remuneration. E:\rPLOTERS' LIABILITY ACT. C75 29. The afisessors .shall sit in Court with the judge, and assist («) him when reciuired with their opinion and sjoecial knowledge for the purpose of ascertaining the amount of compensation, if any, wliicli tlie plaintiff shall be entitled to recover. CunsoUdation- of Actions or Stay of Proceediiif/s. 30. "Where several actions shall be brought under this Act against a defendant in the same Court in respect of the same negligence, act or omission, the defendant shall be at liberty to apply to the judge that the said actions shall be consolidated. 31. Applications for consolidation of actions shall be made upon notice to the plaintiffs afi'ected by such consolidation. 32. In case several actions shall be brought under this Act against a defendant in the same Court in respect of the same negligence, act, or omission, the defendant may, on filing an luidertaking to be bound so far as his liability for such negligence, act, or omissicm is concerned by the decision in such one of the said actions as may be selected by the judge, apply to the judge for an order to stay the jiroceedings in the actions other than in the one so selected, until judgment is given in such selected action. 33. Applications for stay of proceedings shall be made upon notice to the plaintiffs affected by stay of proceedings or ex ^wn-fc. 34. Upon the hearing of any application for consolidation of actions or for stay of proceedings, the judge shall liave power to impose such terms and conditions and make such Order in the matter as may be just. 35. If any Order shall be made by a judge upon an ex parte application to stay proceedings, it shall be competent to the jilaintiffs affected by such. Order to apply to the judge, upon notice or exjiarte, to vary or discharge the Order so made, and upon such last-mentioned application such Order shall be made as the judge shall think fit, and the judge shall have power to dispose of the costs occasioned bj- such Order or Orders as he may deem right. 36. In case a verdict in the selected action shall be given against the defendant, the plaintiffs in the actions stayed shall be at liberty to pro- ceed for the purpose of ascertaining and recovering tlieir damages and costs. 37. A defendant may admit tlie truth in the plaintiff's particulars in the actions of any statement of liis liability for such negligence, act, or omission, and thereupon the provisions of Order XII. r. 3, sliall apply. Wliere two or more persons are joined as plaintiffs under Order V. r. 1, and the negligence, act, or omission which is the cause of action shall be proved, the judgment shall be for all the plaintiffs, but the (rt) See sec. 6 (2). 676 THE LAW OF MASTER AND SERNANT. amount of coiupensation, ii' any, that each phiiutill' i.s entitled to shall be sepai'ately found and set forth in the judgment, and the amount of costs awarded in the action shall be ordered to be paid to such person and in such manner as the Court may think fit. Should the defendant fail to pay the several amounts of compensation and the costs awarded in the action, execution against his goods may issue as in an ordinary action ; and should the proceeds of the execution be insufficient, after deducting all costs, to pay the -whole of the amounts awarded, a dividend shall he paid to each jjlaintitf, calculated upon the proportion of the amount which shall have been awarded to the respec- tive pltuntiffs to the total amount realised after the deduction of all the costs of the action as aforesaid. SCHEDULE. Applicatiox for Assessors. The Employers' LiahiUtij Ad, 1880. In the County Court of holden at Between Plaintiff. Defendant. The plaintiff [or defencUuit] applies to have an assessor [or assessors] appointed to assist the Court in ascertaining the amount of compensation to be awarded to the plaintiff, should the judgment bt- in his favour ; and he submits the names of the following persons, who liave expres.sed their willingness in writing to act as assessors, should theylje appointed. {Here set out the names, addresses, and ocaqndions of the 2)ersons above referred to.) * The (Icft-ndant [or idaintilf] consents to tin- aiipointnient of any of the ])ersons above named to act as assessors in this action, as ai)pears by his consent thereto filed herewith. Plaintiff [G7 of wages, 553 AMERICAN COURTS, views of as to lialulity of companies, 323 AI^PORTIONMENT OF SALARY, xxxiii. APPRENTICE, punishing, 24, 32 earnings, master's right to, 25, 220 and servant, distinction between, Ol, G!) enlisting, 85 infont contracting as, 88 pauper, 181 master's duty to teach, 183 place of teaching, 184, 227, xxxiii. ordered to fulfil duties, 200 dismissal of, 222, 223 action for enticing away, 230 action for harbouring, 231 assignment of, 242 to chimney sweepers, 385 imprisonment of, {134 sureties for, G34 APPRENTICESHIP, early legislation as to, 14, 17 requisites of contracts of, 112 precedents of indentures, 112ji. to the sea, 112, 549 defective contracts of, Gl, (19 stamp payable upon, 122 premium to be correctly stated in indenture, 122 dissolution of contract by death, 235 dissolution of contract by bankruptcy, 238 ARBITRATION Acts, 572 award to be final, 575 arbitrators differing, 576 INDEX. 0^3 ARBITRATION— co»//>? vcd. nomination of arbitrators, o?;; equitable councils of conciliation, 585 formation of councils, r)8G proceedings of councils, 587 councils not to settle future rates of wages, 587 arbitration agreements, 594 rescission of arbitration clauses, G32n. ARREARS of wages, IG-I- ARTIFICER, within the Stamp Acts, 121 within the Truck Act, 3G7n., ?>74, 377 within the Hosiery Manufacture Act, 384 within 4 George IV. c. 34, (;3Gn. ARIMY, apprentice enlisting in, 85 servant enlisting in, 85 ASSAULT, by master in defence of servant, 23 by servant in defence of master, 23 by servant, master's liability for, 260, 297 ASSESSORS, under Em^oloyers' Liability Act, G73 appointment of, G73 trial by, G73 remuneration of, G74 ASSIGNMENT of contracts of hiring and service, 242 of contracts of apprenticeship, 242 ASSIGNEES in bankruptc}-. Sec Trustee. ATTACHMENT of wages, 1G3 of seamen's wages, 559 084 INDEX. AUTHORITY of servant to contract tor master, 244 of servant from position, 244 from previous dcalinf];s, 24G cliief cases as to, 250 as to torts, 257 ambiguity of terra, 288 BAILEE and servant, 55 BAKEHOUSES. See Factory Act, 494, 538 BANKRUPT, personal labour of, 239 damages for breach of contract, 239 salary and wages of, 240 BANKRUPTCY, eflFect of upon wages, 1 'o'l priority of claims for wages in, 102 servant and clerk within Bankruptcy Acts, 1C5 of master, apprenticeship terminated by, 238 effect of upon contract of service, 238 BARRISTERS, contracts with, 83n. BLAST FURNACES. See Factory Act, 532 BLEACHING WORKS. Sec Factory Act, 533 BREACH, See Master, Servant, Measure of Damages. BREAKAGE, by servant. See Loss BY Servant. BOARD, 14Gn. BURGLARY, indictment for, G4 INDEX. BUTTY COLLIER, SOSn. liYE-LAWS, del'ective, 332, COS, GGG, CG7 OAJ]-OWNERS, liability of, 48, 50, 200 CAMrBELL'S (LORD) ACT, 077 CARRIERS, liability of for acts of servants, 49, 277 CERTIFICATE, necessary to right to wages, 148 CHARACTER, of servant, commnnieations respecting, 185 master not bound to give, 185 master's privilege with regard to, 185 proof of malice, 187 misrepresentation as to, 1 00 uttering forged, 1 0( t counterfeiting, .")03 CHARTERER, of vessel, liability of, 200 CHASTISING, of servant, 32 of apprentice, 32 by upper servant, 32 CHASTITY, of female servant, 212 (HECK T\'EIGHER, appointment otj 403 CHILD, father's right to earnings of, 01 emancipation of, 92 parents suing for loss of service of, 22[) parent suing in respect of death of, 070 685 (j8G index. CHI LD — coniin tied. contributory ncg,ligencc of, 329 employment of, in chimney sweeping, 885 in mines (coal), of, ;!'.)(; in mines (metalliferous), 440 in agricultural gangs, 405 in dangerous performances, 467 in factories, 482 in husbandry, 54G education of, 488, 541 forfeiture of wages of, 638 CHIMNEY SWEEPERS, Acts, 385 apprentices to, 385 construction of chimneys, 385 children not to be apprenticed to, 385, 389 certificates of, 390 CLEEK, stamp on hiring of, ] 22 clerks to solicitors, 122 priority of claim ibr wages in bankruptcy, 162, 165 within the Bankruptcy Acts, 165 lien of, 203 CLOCK MANUFACTURES, frauds in, 345 CLOTHING, master not providing, 181 COAL MINES REGULATION ACT. >Soe Mixes. COMBINATION LAWS, S'JC See Tradk Unions. C0:\IPLA1XTS, by servants, as to defects in machinery, 325, 667 COMMON EMPJiOYMENT, 302 tests of, 307 chief cases as to, 331 defence of, as between felU»w servants, 256. See also E.MJ'LOVKliS' iilAlULITY A'T. INDEX. 687 COMMERCIAL TRAVELLER, liiring of, 171 COMMLSSIOX, payment by, (J5, 75 COMPANIES, contracts of hiring and service of, 118, 119 wages of servants of, in wii^ding-up, IGl liability for acts of servants of, 259, 287, 290, 322 CONSIDERATION, mnst be stated, 110 what is, 12G immoral, IIU absence of, 139 CONCILIATION, councils of, 585 CONSOLIDATION OF ACTIONS, 075. See Employers' Liability Act. CONSPIRACY AND PROTECTION OF PROPERTY. &e Trade Unions, G15 CONTRACT, for hfe, 31 parties to, 83 of hiring and service, how formed, lOG duration of, lOG, 1G7 part performance of, 109n., 159n. not to be performed within a year, lOG under seal, 11." consideration ol", 139 divisible, l.'jS entire, 153 dissolution of, by death, 1^35 by bankruptcy, 238 by consent, 238 by servants for masters, 244 by servant as general agent, 24G CONTRACTOR, and servant, GO GS8 INDEX. CONTRACTOR— fw?/mwprf. employer not liable for acts of, 2G2 liable for unlawful work of, 20-4 dangerous work of, 26G interference with, 208 See also Truck Act and Employers' Liability Act. CONTRIBUTORY NEGLIGENCE, of third persons, 292 of servants, 325, r>29 of children, ;)29 CORN, misappropriation of master's, 3C1 CORPORATION, appointment of servants by deed, ] !?> exceptions, 113 contracts of hirinc," and service of, 113 municipal, contracts of, 1 1 (i liability of, for acts of servants, 259, 2G1, 290 knowledge of servants of, 32 5n. CORRECTION, of servants, 32 COTTON MANUFACTURES, frauds in, 340, 342, 343, 319, 353 COUNTER CLAIMS, 159 CRIMINAL, liability of masters for acts of servants, :^72 CREDIT, servant's power to pledge master's, 24G CUSTOM, 110, 1G9 DAMAGES, measure of for iinproi)er dismissal, 191, xxxiii. caused by workmen, G31n., G32n. under Employers' Liability Act, 6G8, 078 DANClEROrS PERFORMANCES ACT, 4G7 INDEX. CSO DANGEROUS WORK, servant engaging in, 208, 300 contractor employed to execute, 2GG master's duty in regard to, IU8 Sep also Employers' Liability Act. DEATH, of master, 23.") of servant, 23r> dissolution of contract by, 235 of apprentice, 23G wages and effects of seamen at, 557 DEDUCTIONS, fi-om wages, 157n., 309, 37G, 383, G38 from seamen's wages, 5GG See Truck Act, Hosieky Manufacture Act, E^i- PLOYERS AND "WORKMEN ACT. DEFECTS, in machinery, 317 servant's knowledge of, 325, GG2 See Employers' Liability Act, GG4 and xxxiv. DESERTION, by seamen, 5 GO punishment for, SCO, 5G9 DETOUR, servant making, 284 DIRECTORS, authority to hire servants, 119 fraud by, 2 GO DISCHARGE OF SERVANT. See Dismissal. DISCRETION, renmneration left to employer's, 1 17 DISMISSAL, when servant may sue for wrongful, 193 Y V GOO INDEX. BlS^SnSSXlj—confuiiirtL damages for wrongful, 191 grounds for, 205 disobedience, 205 habitual negligence, 208 dishonesty, 210 claiming to be partner, 211 gross immoralitj', 212 gross insolence, 213 want of skill, 214 permanent sickness, 215 when question for Court, 217 master need not state grounds of, 218 of apprentice, 222 old law as to, 224 DISPUTES, former jurisdiction of justices as to, 18 jurisdiction under Emploj-ers and Workmen Act, G31 DISSOLUTION of contract by death, 235 by consent, 238 by bankruptcy, 238 DISTANCE, how measured in contracts in restraint of trade, 13Gn. DIVISIBLE CONTRACTS OF SERVICE, 153 DOMESTIC SERVANT, hiring of, 1G9 notice to, 109 See Truck Act, Council of Conciliation, and Employers' Liability Act. DRAWERS, 106 DRUNKENNESS, disciiarge for, 158, 212, 560n. DURATION OF CONTRACT, 1G7 DUTIES. See Master and Servant. INDKX. 091 DUTY. Spp Stamps. DYEIXG WORKS. Sec Factory Act, 533, 535, 537 EARNEST MONEY, payment of, 1 ()(» EARNINGS, of apprentice, master's right to, 2."), 220 of servant, master's right to, 25, 220 EDITOR, engagement of, 109 EDUCATION ACTS, 541 See also Factory Act, Mines, Agricultural Gangs. EJECTMENT OF SERVANTS, (53 EMBEZZLEMENT ACTS, 340 EMPLOYERS' LIAlilLITY. Act, 054 contracting out of, 655 rights of personal representatives, 050 vrorkmen accepting compensation, 057 insurance, 058 effect of Act, 059 "workmen," 659,072 defences open to employer, 600 servant's knowledge of defects, 602 " defects," 004 plant, 605 persons entrusted with suiierintendence, 605 persons in charge of signal, &c., 006 railway, 660n. bye-laws, 667 amount of compensation, 068, 678 notice necessary, OOs defects in notice, 008n, deduction from compensation, 070 action to be tried in county court, (570 service of notice, 071 definitions, 072 rules, 072 Y V 2 G92 INDEX. EMPLOYERS' JAABlUTY--contume(7. assessors, G73 application for, GTo consolidation of actions, G75 Lord Campbell's Act, 077 See Addenda, xxxiv. EMPLOYERS' AND WORKMEN ACT, G^O ■workmen within, Coin., G35 jurisdiction of County Courts, G31 powers of County Courts, G;52 disputes between masters and workmen, 03 1, 033 adjusting- and setting off claims, G32 rescinding contracts, G32 awarding damages, 032 accepting security, 032 Res judicata, G32n. arbitration clauees, G32u. Court of Summary Jurisdiction, G33 dispute between master and apprentice, G33 jurisdiction as to apprentice, 633 order to perform duties, 633 rescinding contracts of apprenticeship, 034 return of premium, 034 Imprisonment of apprentice, G34 summoning surety for apprentice, 034 procedure, 634 giving security, 034 ])ayment by instalments, 034 " workmen," G;)5 " artificer," 03 On. deduction from wages in case of those subject to Factory Acts, 639 rules, 039 EMPLOYMENT, duty of servant to seek, 191 ENGAGEMENT OE SEAMEN, 5;a ENLIST]\IENT, 85 ENTIRE CONTRACTS OE SERVICE, 153 INDEX. (>f)3 EXECUTOI^S, payment of wa,<^cs by, 1 G;} EXTRA WORK, rouuneration for, 150 FACTORY ACT, 400 (for full index to, sop p. 4G9) pi-ovisious for safety, 478 sanitary provisions, 479, 505, 5:51 employment of children, yonng persons, and women, 482, 49G, 532 hom-s of meals, 482, 480, 495, 501, 505, 532 textile factories, 483, 497, 520 holidays, 488 education of cliildren, 488 certificate ol" fitness, 490 accidents, 492 special provisions relating to particnlar classes of factories and workshops, 493 special restrictions as to employment, meals, and certifi- cates of fitness, 495 special exceptions relaxing general law ni certain factories and workshops— («) period of employment, 490 (&) meal hours, 50 1 (c) overtime, 501 {d) night work, 504 special exception for domestic and certain other factories and workshops, 505 supplemental as to special provisions, 500 administration, penalties, and legal proceedings — (1) insi)ection, 508 (2) certifying surgeons, 511 (3) miscellaneous, 512 (4) fines, 514 (5) legal proceedings, 517 definitions, savings, &c. (1) definitions (factory, workshop, &c.), 520 special exemption of certain trades, 524 (2) savings, 525 (3) application of Act to Scotland and Ireland, 525 604 INDEX. F ACTOll Y ACT— con fin rml repeal of Acts, 529, 539 schedules — first schedule — special provisions for health — factories in which the employment of young persons and children is restricted, 531 second schedule — special restrictions — places forbidden for meals, 531 third schedule— special exceptions — period of employ- ment, 532 meal hours, 532 overtime, 533 additional half-hour, 535 overtime for perishable articles, 535 night work, 535 spell, 53 G fourth schedule — list of factories and workshops, 536 non-textile factories, 536 non- textile factories and workshops, 537 fifth schedule — special exemptions, 538 sixth schedule — Acts repealed, 539 FARM SERVANT, 375, 637n. FARMER working on Sunday, 338 FATHER, right of to children's earnings, 91 emancipation of children, 91 action for loss of service of children, 229 See also Education Acts. FELLOW SERVANT, W'ho, 304, 331 chief cases as to, 331 FEMALE SERVANT, chastity of, 2 1 2 marriage of does not dissolve contract of hiring, 103 FENCING. Sen Coal ^Iinks Rkgulation Act, 421 ; Mktal- LiFKuous Mines Act, 451 ; and Factory Act, 478. INDEX. 695 FIRE, liability of master for damage by, 287, 29;> FLAX manufiicturcs, frands in, iMo, 310, D.jS mills. Sec Factory Act, 533, 537 FOOD, master's duty to provide, 180 of seamen, 558 FOREMAN, a fellow servant, 332 FORFEITURE, of seamen's wages, 158, 5 CO of wages, 219 of wages of children, young persons, and women, 38-ln., G38 FRAME RENT, deductions for, 37G, 383 FRAUDS, Statute of, lOG master's liability for frauds of servant, 250, 281) of directors, '2^^ FREIGHT, not the mother of wages, 155, 555 GANGS, agricultural, 4G4 gang-masters, 465 GAS, breaches of contracts of service by gasmen, GIG GENERAL HIRING, 1G7 GLASS MAKING. iSee Factory Act, 531, 533, 537 COG IKDFA'. GOODS, payment of wages in, "09 See Truck Act. GOVERNESS, hiring of, ]69n. past misconduct of, 213 GOVERNMENT, liability of servants of, 290 servants of not within the Employers' Lia^ility Act, G72n. GRATUITIES to servants, 149 GRATUITOUSLY, promise to work, 126n. GRINDING, in metal trades, employment of children in, 531. See Factory Act. GUARANTEES to firm, 237n. GUARDIANS, contract of liiring by, 115 GUILDS, 13 HARBOURING, of servant, action for, 231 of apprentice, 231 HEALTH, of seamen, 557 See Master's Duty, and Factory Act. HEMP lilANUFACTURES, frauds in, 349 HIRER of carriage not liable for acts of driver, 12, 2C9 HOSIERY MANUFACTURE ACT, 383 INDEX. 007 HOTEL KEEPER, servants of, 125 HUNTSMAN, lG9n. HUSBANDRY, employment of diiklren in, 540 See Agricultural Gangs Act, Truck Act, Councils OF Conciliation Act. ILLEGAL CONTRACTS, 131 ILLNESS. See Sickness. I^iLMORAL CONTRACTS, 131 IMMORALITY, ground for dismissal, 212 IMPLIED contract of service, 1 43 authority of servant, 244, 288n. See also Liability. INCOMPETENT servants, liability of master for employing, 271, 316 INCOMPETENCY, ground for dismissal, 214 INDENTURES. See ArrRENTiCESHiP. INFANTS, contracts by, 87 ratification by, 87 necessaries for, 88 contracts subjecting to penalties, 89 not liable on covenants of apprenticeship, 90 disaffirming contracts of service, 9 On. father's right to earnings, 91 emancipation of, 91 remedies for wages, IGlii. not within Councils of Conciliation Act, 587 COS INDEX. mFXKTS—confhmed. subject to Employers and Workmen Act, G3G See Trade Unions, G27 INJUNCTION", to restrain servant from breaking contract, 199 ^ INJURIES, to servant, master's right of action for, 228 to servants, causing death, 231 breach of contract of service causing bodily, 017 by servants. See Liability. INNKEEPER, liabihty for acts of servants, 277 INSOLENCE of servant, ground for dismissal, 213 INSURANCE, of servant's wages, 105 of captain's wages, 105 under Employers' Liability Act, 058 amount of, when to be deducted from compensation, 078 INSURER, master not insurer of servant, 303 INTEREST, not payable on work and labour, lG4n. INVENTION by servant, 221 IRON manufactures, frauds in, 310, 342, 313, 349 IRON MILLS. See Factory Act, 533, 535, 537 JUSTICES, former jurisdiction of, as to wages, 18 See also Employers and Workmex Act. LABOURERS, statutes of, 9, 14 growth of free, 1 3 INDEX. 099 LACE FACTORIES, 538 LARCENY by servants, 80, ."59 in mines, ;>58 in manufactures, 358 LEGACIES, work done in expectation of, 141) to servants in satisfaction of wages, 1G3 LENDING of servants, 42 LETTER PRESS PRINTING WORKS. See Factory Act, 533, 534, 535, 537 LIABILITY, of master for contracts made by servants, 244 of servant to third persons, 253 of servant on contracts, 253 of servant to fellow servant, 25 G of servant to master, 25G of master for torts of servants, 257 of companies for acts of servants, 259 of employer for acts of contractor, 2G2 of charterer, 2G9 of principal for acts of agent, 271 of master for acts done by his orders, 272 criminal liability of master, 272 of master for libels by servant, 273 of master for penalties, 273 for nuisances, 27G master's instructions to servant no defence, 279 for what acts master not liable, 282, 285, 290 history of liability of master, 292 chief cases as to, 295 of master to his servants, 302 for his own negligence, 305. Sec Employers' Lia- bility Act. LIBEL, by servants, master's liability for, 273 on servants, 185 700 INDEX. LICENCES for male servants, 124 TJEN, workman's, 201 seaman's, 204, 554: master's, 556 LIFE, contracts for, 31 LIMITATION, statnte of as to wages, 1(14 LINEN manufactures, frauds in, 340, 342, 343, 340, 353 LITHOGRAPHIC PHINTING. See Factory Act, 532, 534 LIVERY, servant's right to, 155n. LOCAL BOARDS, contracts of hiring of, 117 LOCATIO CONDUCTIO, 70 LODGING, master's duty to provide, 1 80 LOSS BY SERVANT, 157n. LUCIFER MATCHES, making of. See Factory Act, 531, 53G LUNACY, ■whether a gi'ound of discharge, 217n. LUNATICS, contracts of, 104 :\IACHINERY, master's duty in regard to, 317 cliief cases as to, 334 Sec al.so Factory Act and Employers' Liabimty Act. MALK SEIiVANT, duty on, 124 INDKX. 701 MALICE, jiroof of in actions for slander, 187 MALICIOUS prosecution, 200 injury to property, 359 MANDATE, 12G MAERIAGE not a dissolution of contract of hiring and service, lOcn. MAERIED WOIMEN, contracts of, 93 payment to, 93 carrying- on business, 95 custom of London as to, 'Jon. desertion of, 96 protection order, 9G MARPJED WOMEN'S PROPERTY ACT, 1870, 97 18S2, 98 MASTER'S duty to pay wages, 112 to indemnify servants, 17G to provide food, 180 to teach apprentices, 183 to select servants with care, 31G MASTER'S CERTIFICATE, 5 19 MATERIALS, embezzling of, 340 MATE'S CERTIFICATE, 519 MEAL HOURS. See Factory Act, 482, 480, 495, 501, 505, 532. MEDICINES, master not bound to provide, 180 duty to provide seamen with, 182, 557, 5G3 MENIAL SERVANTS, 169 702 INl^EX. MILITIAMEX, contracts of hiving and service by, 84n. MINES (COAL) REOULATION ACT, 396 application of the Act, yi>G employment of women, yonng persons, and children, 39G employment of boys under ten and women and girls below ground prohibited, 39G employment of boys of the age of ten and under twelve, 397 boys of twelve and under thirteen, 397 regulation as to employment of boys and male young persons below ground, 397 regulations as to attendance at school, 397 deduction from wages for education, 399 provisions with respect to employment of women, young persons, and children above ground, 400 register of boys, &c., employed below ground, and women, &c., above ground, 400 person having charge of engine,- &c., 401 no wages to be ]mid at public-house, 402 payment by weight, 402 appointment and removal of check weigher, 403 single shafts, prohibition of, 405 exceptions as to, 40G division of mine into parts, 407 certificated managers, appointment of, 407 appointment of board of examiners for granting certificates of competency, 408 constitution and proceedings of the board, 409 certificates of com])ctency, 409 certificates of service, 409 inquiry into conduct of manager, 410 returns, notices, and abandonment, 412 returns as to quantity of coal wrought, &c., 412 notice of loss of life, or jiersonal injury, 413 notice of abandonment of mine, 414 fencing of al)an(loncd mine, 414 inspection, 411 appointment of inspector, 41.") powers of inspector, 415 INDEX. 703 MINES (COAL) REGULATION KQT—contl,im,L notice by inspector us to mine Ijcing dangerous or defective, 41G plans of, to 1)0 kept l)y owners, 410 inspectors to make annual rei)ort, 417 arbitration, provisions as to, 417 coroners' inquests, provisions as to, 419 general rules to be observed, 420 ventilation, 420 fencing of entrances to places not in actual working, 421 withdrawal of workmen, 422 use of locked safety-lamps, 422 use of gunpowder, 422 dangerous accumulation of water, 423 man-holes, 423 fencing of tops of shafts out of use, 424 securing of roofs, 424 slipping of ropes, 424 break power, 425 fencing fly-wheels, &c., 425 steam gauges, 425 wilful damage to fences, &c., 425 inspection by miners, 426 special rules, 426 approval of special rules by Secretary of State, 426 penalties, 429 imprisonment, 430 prosecutions, 432 definitions, 434 schedules — schedule I. — table of fees, 436 schedule O. — proceedings of Board of Examinations, 437 schedule III. — Acts repealed, 438 schedule IV. — annual return, 439 MINES (METALLIFEROUS) REGULATION ACT, 440 application of Act, 440 employment of women, young persons, and children, 440 employment of boys under twelve, women and girls below ground prohibited, 440 704 INDEX. MINES (METALLIFEROUS) EEDULATION kGT—conUl employment of boys of twelve and under thirteen, and male young persons below .ground, 440 register of boys, &c., employed below, and of women, young- persons, and children above ground, 441 person having charge of engine, &c., 441 no wages to be paid at public-house, 442 returns, notices, and abandonment, 442 notice as to loss of life or personal injury, 443 notice of abandonment of mine, 443 fencing of abandoned mine, 444 inspection, 445 appointment of inspector, 445 powers of, 445 notice by inspector as to mine being dangerous or de- fective, 446 plans to be kept by owners, 44 G inspector to make annual rei)ort, 447 arbitration, provisions as to, 447 coroners' inquests, provisions as to, 449 general rules to be observed, 450 ventilation, 450 use of gunpowder, 450 signalling, 451, 452 man-holes, 451 fencing top of shafts, 451 slipping of ropes, 452 break power, 452 steam gauges, 452 wilful damage to fencing, &c., 452 special rules, 453 * ]ienalties, 455 :mi)risonment, 450 prosecutions, 45s miscellaneous — definitions, 459 schedule — Acts repealed, 4G1 Amendment Act of 1875, 462 MINING agent, authority of, 246 70{ INDEX. MOLESTATION by workmen, 508, G18 MONOPOLIES, 13 MONTHLY hiring, 168 MUNICIPAL CORPORATIONS, contracts of, IIG MUTUALITY, 127n. contracts void for want of, 127, 139 NAVAL captain not liable for acts of officers, 271 Courts, 502 NAYY, seamen volunteering into, 8."), bo7 NECESSARIES. See Married Women, Infant, Lunatic. NEGLIGENCE. See Liability and Contributory Negli- gence. KOTICE, to domestic servants, IGO length of, 1G9, 170, 172 custom as to, 171 reasonable notice, 172 of termination of servant's authority, 247. See also Mines and Factory Act. NUISANCE, roaster's liability for, 270 See also Factory Act, 478 OBEDIENCE, servant's duty of, 20^ OBSTRUCTION by workmen, 598, 618 TOG INDEX. OCCUPATIOX, by servant, G2 by public officers, G4 OFFENCES by seamen, 559 punishment of, 560 OFFICES, PUBLIC, contracts for sale of, 133 PAPER MILLS. See Factory Act, 533, 535, 537 PARENTS, right of to children's earnings, 91 employment by contrary to Education Acts, 547 PAROL agreements, lOG evidence, 110 PART PERFORMANCE of contract, 109n., 159n. PARTICULAR INSTRUCTIONS. See Employers' Liability Act, G63, GGG PARTIES to contract of hiring, 83 PARTNER and servant, G5 power of to hire servant, 105 to discharge servant, 105 death of, 23G rights of new, 237 liability of, for acts of co-partner, 315 PATENT. See Invention. PAYMENT of wages, presumption of, IGI PENALTIES, master's liability for, 273 Sec also i\IiNE.s, Factory, and Education Acts, INDEX. 707 PERSONATION of master, and giving false character, 363 PICKETTING, 618 PILOTS, liability for act of, 270 PLACE, for instructing apprentices, 184, xxxiii. of service, 226 POSSESSION, by servant, 24, 80 by wrong-doer, 81 PREFERENCE, as to payment of wages. See Executors, Baxkruptcy, WiNDixa-UP. PREMIUMS, recovery of, 123n., 184, 634 PRINCIPALS, liability of, for acts of agents, 271 PRINT WORKS. See Factory Act, 533, 535 PRIVATE ORDERS, 246, 279 PRIVILEGE, of master in regard to servant's character, 185 PROPERTY, servant's duty in regard to, 209 PROTECTION ORDER, 96 PROVOCATION, by master, 207 PUBLIC HOUSE, payment of wages in, 160, 402, 444 z z '2 708 INDEX. PUBLIC OFFICERS not responsible for subordinates, 200 PUBLIC OFFICES, contracts for sale of, 133 PUNISHMENT, of apprentices, 24, 32 of servants, 25, 31 of seamen, 5G0 QUANTV3I MERUIT, payment of, 154, 157 QUAERY, 538 RAILWAY, meaning of, 66Gn. RAILWAY COMPANY, authority of servants of, 245, 251, 287 servants of. Sec Employers' Liability Act, G59, G72 RATIFICATION by infants, 87 by master of servant's contracts, 248 by master of servant's torts, 289 RECOVERY OF WACJES, IGO, 55G RELATIVES, work done for, 144 RES JUDICATA, G32n. RESCISSION, of contracts by courts, G32, G34 RESTRAINT of trade, contracts in, 134 what contracts valid, 135 Sec also Trade Unions. RETAINER, 142 EULES, defective under Employers' Liability Act, GG3, CGG, GG7 INDEX. 709 SALARY of bankrupt, 240 apportionment of, xxxiii. SALE and contracts of service, 57 of public offices, 133 SALVAGE, seamen's right to, 555 SCIENTER, 325n. SCOTCH COURTS, views of as to common employment, 312 SEAL, contracts under, 113 SEAMEN, punishment of, 33, 5 GO agi-eements with. 111, 551 right to extra remuneration, 151 recovery of wages by, IGO, 556 Acts relating to, 548 to what ships Acts apply, 548 shipping offices, 548 mercantile marine offices, 548 certificates of masters, 540 of mates, 549 apprenticeships to the sea service, 549 indentures, how executed, 550 engagement of seamen, 551 form of agreement in home vessels, 551 in foreign-going vessels, 552 allotment of wages, 553 allotment notes, 553, 567 discharge and payment of wages, 554 legal rights to wages, 554 liens, 554 wages not dependent on freight, 555 mode of recovering wages, 556 discharge of seamen abroad, 557 volunteering into navy, 557 provisions, health and accommodatioD, 557 710 ' INDEX. seamen kept on short allowance, 558 protection of seamen from imposition, 559 attachment of wages, 559 discipline, 559 ott'ences by seamen, 559 desertion and forfeiture of wages, 500 punishment for desertion, &c., 560 naval courts, 562 returns as to seamen, 562 entry of punishments, &c., in log, 563 30 & 31 Vict. c. 124—563 scale of medicines, 563 illness caused by neglect of master, 563 by wilful act of seaman, 564 accommodation, 564 34 & 35 Vict. c. 110—564 inquiry into seaworthiness at request of crew, 565 36 & 37 Vict. c. 85—505 compensation to seamen when ship not fit to proceed to sea, 565 39 & 40 Vict. c. 80—566 implied obligation of seaworthiness, 566 43 & 44 Vict. c. 16—560 payment of wages and rating of, 566 document authorising future payment of wages, 566 allotment of wages, 567 settlement of wages, 567 desertion or refusal to serve, 569 SEAWORTHINESS, implied obligation of, 566 SECRET processes, contracts restraining use of, 138 SECRETS, servant divulging master's, 210 SEDUCTION, actions for, 230 chief cases as to, 233 INDEX. 711 SERFAGE, history of, L SERVANT, definition of, 34 in wills, 35n. different meanings of, 37 in Larceny Acts, 3.sn. tests of relationship, U working for other than his master, 42, 309 of two masters, 46 in Carrier's Act, 49 de facto, 50 and agent, 53 bailee, 55 contractor, GO apprentice, 01, 09 tenant, 02, 70 partner, G5, 75 within the Bankruptcy Acts, 105 duties of, 205 duty to obey, 205 to be diligent, 208 to exercise care in regard to property, 2»»9 to consult his master's interests, 210 dismissal for immorality, 212 dismissal for insolence, 213 duty to possess skill, 214 dismissal for permanent sickness, 215 province of court and jury, 217 valid reason for discharge need not be given, 2 is forfeiture of wages, 219, 638 earnings of servant, 220 authority to contract for master, 244 to pledge master's credit, 246 of, after quitting employment, 2}'.) fellow, 304 selection of, 310 contributory negligence of, 325, 329 SET-OFF to claim for wages, 159 712 INDEX. SETTLEMENT, law of, 1 7 SICKNESS, wages of seamen in, 156 master's duty in, ] 80 servant visiting sick relations, 206 permanent, 215 of apprentice, 260 SIGNALS, person in charge of, G05 SILK manufactures, frauds in, 343, 349, 353 weavers' tickets of work, 381 SKILL, servant's duty to possess, 214 SLAVERY in England, 1 SOLDIER, hiring of, 84, 85 SOMMERSETT'S CASE, 29 SPECIFIC PERFORMANCE of contracts of hiring, 197 apprenticeship, 638 STAMP ACT, 121 agreements witli labourers, &c., exempt from, 121 upon indentures, 122, 550 agreements with seamen exempt from, 122 STOCKING FRAMES, refusal to deliver up, 353 hire of, 383 STRIKES, 599, 6Q2, 616, 618 SUNDAY, work on, 150,337 statutes as to, 337 SUPERINTENDENCE. See Employers' Liability Act, 665, 672 INDEX. 713 SUPERIOR. See Employers' Liability Act, cgt SURETIES for servants, 237 See also Employers and Workmen Act, G?>?> TENANT, servant when, (^2, 70 TERMINATE, implied power to terminate contract of hiring, 1 l^s TESTIMONIALS of servants, 21 TICKETS OF WORK, 381 TRADE UNIONS, 5!)fi state of law before ;") Geo. lY. c. 95, 507 state of law after, 599 strikes, 599 threats, 600 how far in restraint of trade, 600 34 & 35 Vict. c. 31, 603 member of trade union not lial)le to criminal prosecution, G03 agreements not void, 603 excepted agreements, 603 registered trade unions, 605 registry of trade unions, 607 legal proceedings, 609 definitions — trade union, itc, 611 Acts repealed, 612 schedules, 613 Conspiracy and Protection of Property kcl.--{For full index, see }). 614) conspiracy and protection of property, 616 crime, definition of, 616 breach of contract of service in supplying of gas or water, 616 breach of contracts of service injurious to property or per- son, 617 neglect of master to provide servant with food, 617 intimidation, 617 714 INDEX. TRADE VmO^^— continued. persistently following, hiding tools, watching, &c., G18 legal proceedings, G18 definitions, 619 saving as to sea service, 621 repeal of Acts, 621 application of Act, G23 39 & 40 Vict. c. 22— trade unions to be within s. 28 of the Friendly Societies Act, 1875 — 625 membership of minors, 627 dissolution of, 628 definition of, 629 TRADING COMPANIES, contracts of hiring of, 113 TRAIN, person in charge of, 606 meaning of, 666n. TRAMWAY, 6 6 On. TREASON, petit, 87 TRUCK ACT, 366 former legislation, 366 payment to l)e made in cuiTcnt coin, 367 artificers within the Act, 3G7n., 374, 377 contracts as to mode of expending wages, 368 no set-off or deduction in respect of goods supplied, 369 no action for goods supplied, 369 payment in bank notes permitted, 370 penalties, 371 proceedings under the Act, 371 trades excepted, 374 domestic servant and servant in husbandry not within the Act, 375 employer supplying medicine, fuel, &c., or making deduc- tion for rent, 376 what deductions permissible, 376 artificers within the Act, 277 INDEX. 715 TRUCK ACT— conimucd. schedule of forms, 378 8&9 Vict. c. 128, 381 tickets of work to be delivered to silk weavers, ;]81 37 & 38 Vict. c. 48—383 stoppage of wages in hosiery luaimfacture, 383 full and entire amount of wages to be paid, 383 contracts for frame rents illegal, 383 artificers within the Act, 384 TRUSTEE, in bankruptcy, rights of to proceeds of personal labour, 231) UNIONS, contracts of hiring of, 115 URBAN AUTHORITIES, contracts of hiring of, 117 USAGE, no, 109 WAGES, apportionment of, xxxiii. master's duty to pay, 142 implied duty to pay, 142, 140 left to employer's discretion, 147 remuneration for extra work, 150 wages and freight, 155, 555 of seamen in sickness, 150 forfeiture of seamen's wages, 158, 500 seamen's wages when recoverable, 100, 550 time of payment of wages, 100, 555 payment of wages of miners in public-houses, 100, 402, 442 payment of wages in winding-up companies, 101, IGG effect of bankruptcy upon, 102 attachment of, 103, 55'J claim for when barred, 104 presumption of payment, 104 insurance of, 105 forfeiture of on dismissal, 219, 038 payment in coin, 308 716 INDEX. y^ AGES— contmned. deductions from, 376 deductions from in liosiery manufacture, 383 payment of wages of coal miners, 402 of metalliferous miners, 442 allotment of seamen's, 55o attachment of seamen's, 559 forfeiture of wages of persons within the Factory Acts, 638 WARRANTY, servant's authority to give, 245 WATCH MANUFACTURES, frauds in, 345 WEAVERS, spoiling materials, 341 WEEKLY HIRING, 168, 173 WILLS, meaning of servant in, 35n. WINDING-UP, payment of wages in, 161, 160 WO:\IEN, EMPLOYMENT OF in coal mines, 396 in metalliferous mines, 440 in agricultural gangs, 405 in factories, 482. See Factory Act and ]\[ines. WOOL COMBERS, spoiling materials, 341 WOOLLEN MANUFACTURES, frauds in, 310, 342, 343, 347, 349, 353 WORK, obligation to find, 130 AVORKMEN within Employers and Workmen Act, 632n., 635 within Employers' Liability Act, 059, 072 INDEX. 717 WORKSHOP. Spc Factory Act. WORSTED manufactures, frauds in, 353 WRECK, shipwrecked, wa^cs of seamen, 555 WRITING, when necessary to contract of liiring, lOG, 107, 1 11 YEAR, contracts not to be performed witliin a, 107 YEARLY HIRING, 1G7, 172 YOUNG PERSON, employment of in mmes (coal), 39 G in mines (metalliferous), 440 in factories, 482 forfeiture of wages of, 638 THE END. BRADBURY, AGKEW, & CO., PRINTERS, WHITEFRLABS. 3 A u Fovemher, 1882. J^ C^T^LOC3-XJE LAW WORKS, PUBLISHED BY STEVENS AND SONS, 119, CHANCERY LANE, LONDON, W.C. (And at 14, Bell Yard, Lincoln^s Inn). 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Second Edition, con- taining the County Courts (Costs and Salaries) Act, 1S82, and the Important Legislation (as to Married Women's Property, Bills of Sale, Inferior Courts Judguicnts, &c. &c.) of the Session, 1882. By G. PITT-LEWIS, of the Middle Temple and Western Circuit, Esq., Barrister-at-Law, sometime Holder of the Studentship of the Four Inns of Court, assisted by H. A. De Colyar, of the Middle Temple, Esq., Barrister-at-Law. In 2 vols. DemySvo. (I n the press.) "The late Lord Chief Justice of England in his written judgment in Stooke V. Taylor, says, ' The law as to the difference between set-off and counter-claim is correctly stated by Mr. Pitt-Lewis, in his very useful work on County Court Practice.' " — See Laio Times Reports, October 16, 1880, p. 204. Mr. Justice Fry in Bedckdl v. Maitland also cites and approves the same passage. — See L. E., Chancery, June, 1880. " It is very clearly written, and is always practical. ... Is likely to become the standard County Court practice." — Solicitors' JoumaL " One of the best books of practice which is to be found in our legal literature." — Lavj Times " "We have rarely met with a work displaying more honest industry on the part of the author than the one before us." — Law Journal. "Mr. Pitt-Lewis has, in fact, aimed — and we are glad to say success- fully — at providing for the County Courts' practitioner what 'Chitty's Archbold' and ' Daniell's Chancery Practice' have long been to practi- tioners in the High Court." — Laio Magazine. CRIMINAL LAW.— Archbold's Pleading and Evidence in Criminal Cases. — With the Statutes, Precedents of Indictments, &c., and the Evidence necessary to support them. Nineteenth Edition, including the Practice in Criminal Proceedings V Indictment. By WILLIAM BRUCE, Esq., Barrister-at-Law, and Stipendiary Magistrate for the Borough of Leeds. Royal I2mo. 1878. 1^. lis. 6d. Roscoe's Digest of the Law of Evidence in Criminal Cases.— Ninth Edition. By HORACE SMITH, Eeq., Barrister-at-Law. Royal 12mo. 1878. \l.\\s.&d. Russell's Treatise on Crimes and Misdemea- nors.— Fifth Edition. By SAMUEL PRENTICE, Esq., one of Her Majesty's Counsel 3 vols. Royal 8vo. 1877. 51. ISs. 6d. "What better Digest of Criminal Law could wa possibly hope for than 'Russell oi. Crimee? ' " — Sir Jamet Fitzjames Stepliert's Speech cm Cmlitkation. " No more trustworthy authority, or more exhaustive expositor than 'Russell' can be consulted." — Lata Magazine and Review. " Alterations have beeu made in the arranpenaent of the work which without interfering with the general plan are suflicieut to show tiiat great care and tiiought have been bestowed We are amazed at the patience, industry and skill which are eshibitod in the collection and arrangement of all this mass of learning." — 27i« Timet. Shirley's Sketch of the Criminal Law.— By W. SHIRLEY SHIRLEY, M.A., Esq., Barrister-at-Law, Author of " L 10 6 5 119, CHANCERY LANE, LONDON, W.C. 11 DIARY Lawyer's Companion (The), Diary, and Law- Directory for 1883. — For the use of the Legal ProfesBion, Public Companies, Justices, Merchants, Estate Agents, Auctioneers, &c., &c. Edited by JOHN THOMPSON, of the Inner Temple, Esq., Barrister-at-Law ; and contains Costs in Cunveyancing and business other than in any Action, Court, or Chambers, Cencral Charges in Conveyancing, before 1st January, 18S3 ; a Digest of Useful Decisions on Costs; Monthly Diary of County, Local Govern- ment, and Parish Business ; Oaths in Supreme Court ; Summary of Legislation of 1882; Alphabetical Index to the Practical Statutes; a Copious Table of Stamp Duties; Legal Time, Interest, Discount, Income, Wages and other Tables; Probate, Legacy and Succession Duties ; and a variety of matters of practical utility. Published Annually. Thirty-seventh Issue. {Now raidy.) Contains the most complete List published of the English Bar, and London and Country Solicitors, with date of admission and appointments, and is issued in the following forms, octavo size, strongly Ijound in cloth : — s, (I. 1. Two days on a page, plain .5 2. The above, interleaved for Attendances ..." 3. Two days on a page, ruled, with or without money columnfl 4. The above, interleaved for Attendances .... 5. Whole page for each day, plain 6. The above, interleaved for Attendances 7. Whole page for each day, riiled, with or without money cols. 8. The above, interleaved for Attendances 9. Three days on a page, ruled blue lines, without money cols. The Diary contains memoranda of Legal Business throughout the Tear. " An excellent work." — The Times. " A jinblication which has long ago secured to itself the favour of the proffession, ami which, as heretofore, justifies by its contents the title assumed by it." — Laio Joanxai: "Contains all the information which could be looked for in such a work, and gives it in a most convenient form and very completely. We may unhesitatingly recommend the work to our readers." — Solicitors' Jov.riuil. " The ' Lawyer's Companion and Diary ' is a book that ought to be in the possession ot every lawyer, and of every man of business." " The ' Lawjer's Companion ' is, indeed, what it is called, for it combines everything required for reference in the lawyer's office." — Law Times. " It is a book without which no lawyer's library or office can be complete."— /rwA Law IHmes. . „ ., • " This work has attained to a completeness which is beyond all praise. — J/oi-mn*? Post. DICTIONARY Student's (The) Pocket Law Lexicon, or Dictionary of Jurisprudence. Explaining Technical Words and Phrases used in English Law, together with a Literal Translation of Latin Maxims. Fcp. 8vo. 1882. 6s. " A wonderful little legal Dictionary."— /n'^Tni^'ur'a Law Slud'ttts' Journal. " A very handy, complete, and useful little wovk."—Salunlay /:ccuw, April S, lj)82. Wnarton's Law Lexicon.— A Dictionary of Jurispru- dence, explaining the Technical Words and Phriuses employed in the several Departments of English Law ; including the various Legal Terms used in Commercial T ran .tactions. Together with an Explanatory as well as Literal Translation of the Latin JIaxima contained in the Writings of the Ancient and Modem Commentators, Sixth Edition. Enlarged and revised in accordance with the Judicature Acts, by J. SHIRESS WILL, of the ISIiddle Temple, Esq. , Barrister-at-Law. Super royal 8yo. 1876. 2/. 2s. " No law library m complete without a law dictionary or Uw lexicon. To the practi- tioner it is always useful to have at hand a book where, in a small comi)ass, he can find an explanation of terms of infrequent occurrence, or obtain a reference lo statutes on most subjects, or to books wherein particular subjects are treated of at full Icutrth. '—Laio Time.". * * All Standard Law Works are kepi in Siock, in lav: calf and other bindings. * A 4 12 STEVENS AND SONS' LAW PUBLICATIONS. DIGESTS.— Bedford.— Ftdc " Examination Guides." Chambers'— Ftcic " Public Health." Chitty's Index to all the Reported Cases decided in the several Courts of Equity in England, the Privy Council, and the House of Lords. With a selection of Irish Cases, on or relating to the Principles, Pleading, and Practice of Ecjuity and Bankruptcy ; from the earliest period. The Eourth Edition, wholly revised, reclassified and brought do\vTi to the date of publication by WILLIAM FRANK JONES, B.C.L., M.A., and HENRY EDWARD HIRST, B.C.L., M.A., both of Lincoln's Inn, Esqrs., Barristers-at-Law. In 5 vols. {Vol. 1 . in the press.) *,* Volume I. will contain the Titles "Abandonment" to '• Bankruptcy." The litle Bankruptcy will be a Complete Digest of all cases, including the Decisions at Common Law. Volume II. is in active preparation, and will be issued shortly, and it is confidently expected that the whole work will be com- pleted by the end of 1883. Godefroi. — Vide "Trusts and Trustees." Leake. — Vide "Real Property" and "Contracts." Notanda Digest in Law^, Equity, Bankruptcy, Admiralty, Divorce, and Probate Cases. — By H. TUDOR BODDAM, of the Inner Temple, and HARRY GREENWOOD, of Lincoln's Inn, Esqrs., Barristers-at-Law. Third Series, 1873 to 1876 inclusive, half-bound. Net, H. Us. 6d. Ditto, Fourth Series, for the years 1877, 1878, 1879, 1880, and 1881, with Index. Each, net, \l. Is. Ditto, ditto, for 1882. By H. TUDOR BODDAM and E. W. D. MANSON, Esqrs., Barristers-at-Law. Plain Copy and Two Indexes, or Adhesive Copy for insertion in Text-Books (without Index). Annual Subscription, payable in advance. Net, 21«. *^^* The numbers are issued regularly every alternate month. Each number contains a concise analysis of every case reported in the Law Hepm'ts, Law Journal, Weekly Reporter; Law Times, and the Irish Law Reports, up to and including the cases contained in the parts for the current month, with references to Text-boolcs, Statutes, and the Law Reports Consolidated Digest, and an alphabetical INDEX of the subjects contained in each ndmbeb. Odgers. — Vide "Libel and Slander." Pollock. — Vide " Partnership." Roscoe. — Vide " Criminal Law " and " Nisi Prius." DISCOVERY.— Hare's Treatise on the Discovery of Evidence. — Second Edition. Adapted to the Procedure in the High Court of Justice, with Addenda, containing all the Reported Cases to the end of 1876, By SHERLOCK HARE, Barrister-at- Law. Post 8vo. 1877. 12s. "The book is a useful coutrihutioii to our text-books on practice."— 5oHaefore us." — Law Journal. Bedford's Final Examination Digest : containing a Dige.st of the Final Examination Question.? in matters of Law and Procedure determined by the Chancery, Queen's Bench, Common Pleas, and Exchequer Di\dsion3 of the High Court of Justice, and on the Law of Real and Personal Property and the Practice of Conveyancing, with the Answers. 8vo. 1879. 16«. " "Will furnish stud»jnts with a large armoury of weapons with which to meet the attacks of the examiners of the Incoi-porated Law Society."— Zau? Tinut. Shearwood's Law Student's Annual.— Containing the Questions with Answers to the Solicitor's and Bar Examinations (Michaelmas Term, 1881, to Trinity Term, 1882, inclusive), with Remarks and Comments. A list of l^ooks suggested for Students, the Rules for the Solicitors' and Bar Examinations. 1883, and the Scholarships, etc., at the different Inns of Court, Cases and Statutes, Extracts from Law Students' Debating Societies, and a subject for Prize Essays. Edited by JOSEPH A. SHEARWUOD. Esq., Bar- rister-at Law, Author of "A Concise Abridgment of Real Property," and of " Personal Property," etc. Demy 8vo. 1882. 5s. Shearw^ood's Student's Guide to the Bar, the Solicitor's Intermediate and Final and the Universities Law Examinations.— With Suggestions as to the books usually read, and the passages therein to which attention should be paid. By JOSEPH A. SHEARWOOD, B.A., Esq., Barrister-at-law. 8vo. 1879. 5s. 6d. •' Anv student of average iniellisence who conacientiously follows the path and obeys the instructions given him by the author, need not fear to present himself as a candidate for any of the examiuationa to which this book is iutended as a guide. —Lair JottrnaC. EXECUTORS.— Macaskie's Treatise on the Law of Executors and Administrators, and of the Admmi^- tration of the Estates of Deceased Persons. With an Appendix of Statutes and Forms. By STUART CUNNINGHAM MA- CASKIE of Gray's Inn, Esq., Barrister-at-Law. 8vo. 1881. 10s. 6d. "An able summary of the law of administration, now forming one of the subjects set for the general examination for call to the bar." . ^ , . . . , trjn!„^» ■ „^a "Students may read the book with advantage iW an nitroduction to ' WiUiams and by practitioners not possessing the larger work it will undoubtedly be found useful." — Li'.w Journal. , , •„•_ Williams' Law of Executors and Admmis- trators.-By the Rt. Hon. Sir EDWARD VAUGHAN WILLIAMS, late one of the Judges of Her Majesty's Court of Common Pleas. Ei.'bth Edition. By W.ALTER VAUCxIIAN WILLIAMS and ROLAND VAUGHAN WILLIAMS, Esqra., Barristers-at-Law. 2 vols. Royal 8vo. 1879 3/. 16«. " A treatise which occupies .on unique position and which is recognised by the Bench and the profession as having paramount authoniy in the domam of law with which it deals."— iajc Journal. FACTORY ACTS.— Notcutt's Law relating to Factories and "WorkshOTDS. Second Edition. 12mo. 1879. 9j. • • AU standard Law ^\orUare. kept in Stock, in Imc ccdf and other bindingi. 16 STEVENS AND SONS' LAW PUBLICATIONS. FARM, LAW OF.— Addison ; Cooke.— Firfe "Agricultural Law." Dixon's Law of the Farm.— A Digest of Cases connected ^v^th the Law of the Farm, and including the Agricultural Customa of England and Wales. Fourth Edition. (Including the "Ground Game Act, 1880.") By HENRY PERKINS, Esq., Barrister-at-Law and Midland Circuit. Demy 8vo, 1879. 1?. 6s. *' It is impofigible not to be struck witli the extraordinary reaearch that must have been Hsed in the compilation of such a book as this." — Loao Jottmal. FINAL EXAMINATION DIGEST.-Bedford.— Fide "Examination Guides." FOREIGN JUDGMENTS.— Piggott's Foreign Judaments theireffect in the English Courts. The iEnglish Doctrine, Defences, Judgments in Rem. Status.— By F. T. PIGGOTT, M.A., LL.M., of the Middle Temple, Esq , Barrister-at-Law. Royal 8 vo. 1879. 15s. " A useful and well-timed volume." — Law Magaznie. "Mr. Pigi?ott writes under strong conviction, but he la always careftil to rest his arguments on authority, and thereby adds considerably to the value of his handy volume." Law Magazine and Review. Part II. — The Effect of an English Judgment Abroad. Service on Absent Defendants. Royal 8vo. 1881. 15». " Mr. Pigg'ott, in liis present volume, brings together a mass of details which it would be difficult to find elsewhere in our legal literature stated in so concise and jkccurato a form." — Law Magazine, Jlay, 18S1. FORMS. — Archibald. — Vide "Judges' Chambers Practice." Bullen and Leake. — Vide "Pkadinr/." Chitty's Forms of Practical Proceedings in the Queen's Bench, Common Pleas and Ex- chequer Divisions of the High Court of Jus- tice : with Notes containing the Statutes, Rules and Practice relating thereto. Eleventh Edition. By THOS. WILLES CHITTY, Esq., Barrister-at-Law. Demy 8vo. 1879. 11. 18s. Daniell's Forms and Precedents of Proceed- ings in the Chancery Division of the High Court of Justice and on Appeal therefrom ; with Dissertations and Notes, forming a complete guide to the Practice of the Chancery Division of the High Court and of the Courts of AppeaL Being the Tliird Edition of " Daniell's Chancery ' Forms." By WILLIAM HENRY UPJOHN, Esq., of Gray's Inn, &c., &c. Demy 8vo. 1879. • '21. 2s. " 5Ir Upjohn has restored the volume of Chancery Forms to the place It held before the recent changes, as a trustworthy aud complete collection of precedents." — Solicitors' Journal. "So careful 1b the noting up of the authorities, so clearly and concisely are the notes expressed, that we have found it of as much value as the ordinary text books on the Judi- cature Acts. It will be as useful a work to practitioners at Westminster as it will be to those in Lincoln s Inn." — Law Times. FRENCH COMMERCIAL LAW.-Goirand.-rWc"CommercialLaw.'* HIGHWAYS.-Baker's Law of Highways in England and Wales, including Bridges and Locomotives. Comprising a succinct code of the several provisions under each head, the statutes at length in an Appendix ; with Notes of Cases, Forms, and copious Index. By THOMAS BAKER, of the Inner Temple, Estj., Barrister-at-Law. Royal 12mo. 1880. 16s. *,* All standard Law Works are kept in Stock, in law calf and other bindingt. 119, CHANCERY LANE, LONDON, W.C. 17 HIGH W AYS. -Co««n««i. "This is distinctly a well-planned book, and oannot fail to be ufieful, not only to lawyers, but to thoHc who may be locally engaged in the management of highways."— Jauo Journal. " The general plan of Mr. Baker's book is goorl. He grnnps together condensed statements of the effect of the provi.siuns of the dilTcront Highway Attn rclutiiig to the same nvittev, giving in all cases rcferencos to the sccti(jns, wliich are printed in full in the appendix, 'i'o each condensed section, or (.froiip of sections, he appends a note, stating concisely the ettect of the deei«ions."— So/icitwf" Journal. Chambers' La^A^ relating to Highways and Bridges, being the Statutes in full and brief Notes of 700 Leading Cases ; together with the Lighting Act, 1833. By GEO. F. CIIAMBEES, Escp, Barri.ster-at-Law. 1878. Reduced to V2s. INJUNCTIONS.— Seton.— Fic^" Equity." INLAND REVENUE CASES Highmore's Summary Pro- ceedings in Inland RevenueCases in England and Wales. By NATHANIEL JOSEPH HIGH.MURE, of the Middle Temple, Esip, Barrister-at-Law, and of the Inland Revenue Department. Royal l"2uao. 1882. 6s. " A complete treatise on tirocodiu'o applied to cases tmder the Revenue Act, and !i3 a book of practice it is the bjst we have seen." — T/ie Justice of lUe Peace, Jan. "JS, l^iSi. INSURANCE.— Arnould on the Law of Marine Insu- rance.— Fifth Edition. By DAVID MACLACHLAN, Esq., ' Barrister-at-Lavv. 2 vols. Royal 8vo. 1877. Zl, " As a text book, ' Arnould ' is now all the practitioner can want, and we conp-atirfate the editor upon the skill with which he has incorporated the new decisions." — Lau) Tinxet. Hopkins' Manual of Marine Insurance.— 3vo. 1867. 18s. Lowndes on the Law of Marine Insurance. — A Practical Treatise. By RICHARD LOWNDJtlS. Author of " The Law of General Average," &c. Demy 8vo. 1881. 10s. 6d. "It is rarely, indeed, that we have been able to express such unqualified approval of a new legal work." — Solicitors Journal, February 12th, ISSl. INTERNATIONAL LAW. — Amos' Lectures on Inter- national Law. — Delivered in the Middle Temple Hall to the Students of the Inns of Court, by SHELDON AMOS, M.A., Pro- fessor of Jurisprudence (including International Law) to the Inns of Court, &c. Royal 8vo. 1874. 10s. 6d. Dicey. — Vide "Domicil." Kent's International Law. — Kent's Commentary on International Law. Edited by J. T. ABDY, LL.D., Judge of County Courts. Second Edition. Revised and brought down to the present time. Crown 8vo. 1878. 10s. 6d. "Altogether Dr. Abdy has performed his task in a manner worthy of his roputatiou. His book will be useful not only to Lawyers and Law Students, for whom it was primarily intended, out also for laymen." — Solicitors' Journal. Levi's International Comtnercial Law. — Being the Principles of Mercantile Law of the following and other Countries — viz. : England, Ireland, Scotland, British India, British Colonies, Austria, Belgium, Brazil, Buenos Ayres, Denmark, France, Germany, Greece, Hans Towns, Italy, Netherlands. Norway, Portugal, Prussia, Russia, Spain, Sweden, Switzerland, L^nited States, and Wiirtemberg. By LEONE LEVI, Esq., F.S.A., F.S.S., Barri3ter-.at-Law, &c. Second Edition. 2 vols. Royal 8vo." 1863. 11.15s. *,* All standard Law Works are kept in Stock, in law calf nnd other bindings, 18 STEVENS AND SONS' LAV/ PUBLICATIONS. INTERNATIONAL LAW.-Coii/mxcd. Vattel's Law of Nations.— By JOSEPH CHITTY, Esq. Royal 8vo. 1834. H- Is- Wheaton's Elements of International Law; Second English Edition. Edited with Notes and Appendix of Statutes and Treaties, bringing the work down to the present time. By A. C. BOYD, Esq., LL.B., J. P., Barrister-at-Law. Author of " The Merchant Shipping Laws." Demy 8vo. 1880. U. 10«. " Mr. BoyH, the latest editor, has added many useful notes ; be has inserted in the Appendix public documeuts of permanent value, aud there 13 the prospect that, as edited by Mr. Boyd, Mr. Wheaton's voliitne will outer ou a new lease of life." — Tlie Times. '' Both the' plan aud execution of the work before us deserves commendation. . . . The text of Wheaton is presented without alteration, and Mr. Dana's numbering of the sections is preserved. . . . The Index, which could not hare been compiled without much thought and labour, makes the book handv lor reference."— //OU! Journal. " Students who require a knowledge of Wheuton's text will find Mr. Uoyd's volume very conyenient."— Xa«o Magazine. JOINT OWNERSHIP.-Foster.— nde "Real Estate." JOINT STOCKS.— Palmer.— Fip. 850.) 25«. OPINIONS OP THE PRKSS ON TlIK THIKO EIJITION. ■'Thiscilitiuii maintainsthcixisitiunuf its iircdcccs.sor.s."—Z"t<'Jc(<'ages, and yet, .Hlthough necessary additions have been made in several imixirtant i>articulars, the book has skilfully been kept within a most moderate compass, so tliat Wilson's 'Judicature Aits' remains what it ahv.ays was, one of the iu(«t handy ;is well as one (if tile bust appreciated editions of the Acis."^ Law Maffazi.ie. Au>,'ust, issj. JURISPRUDENCE.— Pliillimore's (J. G.) Jurisprudence.— An Inaugural Lecture on Jurisprudence, and a Lecture on Canon Law, delivered at the Hall of the Inner Temple, Hihtry Term, 1851. By J. G. PHILLIMORE, Esq., Q.C. 8vo. 1851. Sewed. 3«. 6rf. JURY LAWS.— Erie's The Jury I^aws and their Amend- l-nent. By T. W. ERLE, Es([., one of the Ma-sters of the Supreme Court. Royal Svo. 1882. 5s. JUSTINIAN, INSTITUTES Of-Cuniin.— Vkle "CivU Law." Mears. — Vide "Roman Law."' Ruegg's Student's " Auxilium " to the Institutes of Justinian. — Being a complete synopsis thereof in the form of Question and Answer. By ALFRED HENRY RUEGG, of the Middle Temple, Barrister-at-Law. Post Svo. 1879. 5». " The student will be greatly assisted in clearing and arranging his knowledge by a work of this kiud." — Law Journal. JUSTICE OF THE PEACE.— Burn's Justice of the Peace and Parish Officer. — Edited under the Superintendence of JOHN BLOSSETT MAULE, Esq., Q.C. The Thirtieth Edition. Five large vols. Svo. 1869. 71. 7s. Stone's Practice for Justices of the Peace, Justices' Clerks and Solicitors at Petty and Special Sessions, in .Summary matters, and Indictable Offences, with a list of Summary Convic- tions, and matters not Criminal. With Forms. Ninth Edition. By WALTER HENRY MACNAMARA, Esq., Barrister-at-Law. Editor of "Paley's Summary Convictions," "Steer's Parish Law," &c. Demy Svo. 18S2. 25s. " A very credifc\1)le effort has been made to condense and abridge, which h:is beeu awccessful, whilst the completeness of the work has not been i»ipain-d." Z^iw Ti>n>\<. Wigram'sThe Justices' Note Book.— By W. KNOX WIGRAM, Esq., Bairister-at-Law, J.P. Middlesex. Second P^di- tiou. With a copious Index. Royal 12mo. 1881. 12s. Gd. " We have foiuid in it all the information which a Justice can require as to recent legislation." — The Times. " This is altogether a capital book. Mr. Wigram is a good lawyer and a good justices' lawyer."— Z«w Journal. " We Ciin thoroughly recommend the volume to magistr.ates."— inir l\itiet. •- * All standard Law Works are kept in Stock, in law calf and other binditigt. 20 STEVENS AND SONS' LAW PUBLICATIONS. LAND ACT.— 5ee "Settled E«tates."— Middleton. LAND TAX.— Bourdin's Land Tax. — An Exposition of the Land Tax ; its Assessment and Collection, with a statement of the rights conferred by the Redemption Acts. By MARK A. BOUR- DIN (late Registrar of Land Tax). Second Edition. 1870. is. LANDLORD AND TENANT.— Woodfall's Law of Landlord and Tenant. — With a fuU Collection ot Precedents and Forms of Procedure. Containing also an Abstract of Leading Pro- positions, and Tables of certain Customs of the Country. Twelfth Edition. In which the Precedents of Leases have been revised and enlarged, with the assistance of L. G. G. Robbins, Esq. By J. M. LELY, Esq., Barrister-at-Law, Editor of " Chitty's Statutes," &c., &c. Royal 8vo. 1S81. 1?. 18s. " The editor has expended elaborate industry and systematic ability in making the work as perfect as possible." — Solicitors' Jovrnal. LANDS CLAUSES ACTS.— Jepson's Lands Clauses Con- solidation Acts; with Decisions, Forms, & Table of Costs. By ARTHUR JEPSON, Esq., Barrister-at-Law. Demy 8vo. 1880. 18s. " The work concludes with a number of forms and a remarkably good index."— Law Times. " As far as we have been able to discover, all the deci.sions have been stated, and the effect of them correctly given."— iarc Journal. " We have not obsei-ved any omissions of cases of importance, and the purport of the decisions we have examined is fairly well stated. The costs under the Acts are given, and the book contains a large number of foi-ms, which will be found useinl."— Solicitors' Journal. LAW, GUIDE 1 O.— A Guide to the Law: for General Use. By a Barrister. Twenty-third Edition. Cro\vn 8vo. 1880. Net, 3s. 6rf. " Within a marvellously small compass the author has condensed the main provi- sions of the law of England, applicable to almost every transaction, matter, or thing incidental to the relations between one individual and another." LAW LIST.— Law List (The). — Comprising the Judges and OflBcers of the different Courts of Justice, Counsel, Special Pleaders, Draftsmen, Conveyancers, Solicitors, Notaries, &c., in England and Wales ; the Circuits, Judges, Treasurers, Registrars, and High Bailiffs of the County Courts ; Metropolitan and Stipendiary Magistrates, Law and Public Ofl&cers in England and the Colonies, Foreign Lawyers with their English Agents, Sheriffs, Under-Sheriffs, and their Deputies, Clerks of the Peace, Town Clerks, Coroners, &c., &c., and Commissioners for taking Oaths, Conveyancers Practising in England under Certificates obtained in Scotland. So far as relates to Special Pleaders, Draftsmen, Conveyancers, Solicitors, Proctors and Notaries. Compiled by WILLIAM HENRY COUSINS, of the Inland Revenue Office Somerset House, Registrar of Stamped Certificates, and of Joint Stock Companies, and Published by the Authority of the Commissioners of Inland Revenue. 1882, ^et, 10s. 6d. LAW REPORTS. — A very large Stock of second-hand and new Reports. Prices on application. LAW STUDENT'S ANNUAL.— Shearwood.-Ficie "Examination Guides." LAWYER'S COMPANION.— Fttfc "Diary." LEADING CASES.— Haynes' Student's Leading Cases. Being some of the Principal Decisions of the Courts in Constitutional Law, Common Law, Conveyancing and Equity, Probate, Divorce, Bankruptcy, and Criminal Law. With Notes for the use of Students. By JOHN'F. haynes, LL.D. Demy 8vo. 1878. 16s. " Win prove of great utility, not only to Students, but Practitioners. The Notea are clear, pointed and concise."— ia?o limes. "We think that this hook win supply a want the book is singulju-ly weU arranged for reference." — Law Journal. "J* All standard Law Wwki are kept in Stock,in law calf and other bindings. 119, CHANCERY LANE, LONDON, W.C. 21 LEADING CASES.-Continutd. " Shirley's Leading Cases made Easy. A Selection of Leading Cases in the Common Law. By W. SHIRLJIY SHIR- LEY, M.A., B.C.L., Esq., Barrister-at-Law. Secund Edition. (In the press.) " The selection is very large, though all are distinctly 'leading cases,' and tbc notes are by no moans tlio least meritorious part of the work."— Xciic Jniimal. "Mr. Shirley writes well and clearly, and evidently understands what he is writing about." — Law Timet. LEGACY DUTIES.- Vide " Ta.xes on Succession." LEXICON. — Vide "Dictionary." LIBEL AND SLANDER.-Odgers on Libel and Slander.— A Digest of the Law of Libel and Slander, with the Evidence, Pro- cedure and Practice, both in Civil and Criminal Cases, with Precedents of Pleadings. With Appendix of Statute.s includino the Newspaper Libel and Registration Act, 1881. By W. BLAKE ODGERS, M. A, LL.D., Barrister-at-Law. Demy 8vo. 1881. 24«. " We have rarely examined a work which shows so much industry. . . So good is the book, which in its topical arrangement is vastly superior to the general run of law books, that criticism of it is a compli- ment rather than the reverse." — Law Journal. "The excuse, if one bo needed, for another book on Libel and Slander, and that an English one, may be found in tlio excellence of the author's work. A clear head and a skilled h^\ud are to he seen thi-()\ighout. " — Extract from Preface to American reprint. LIBRARIES AND MUSEUMS.— Chambers' Digest of the Law relating to Public Libraries and Museums and Literary and Scientific Insti- tutions generally. Second Edition. By G. F, CHAM- BERS, Barrister-at-Law. Imperial 8vo. 1879. 8s. Qd. LICENSING.— LeIy and Foulkes' Licensing Acts, 1828, 1869, 1872, and 1874; Containing; the Law of the Sale of Liquors by Retail and the Management of Licensed Houses ; with Notes to the Acts, a Summary of the Law, and an Appendix of Forms. Second Edition. By J. M. LELY and W. D. I. FOULKES, Esqrs., Barristers-at-Law. Royal 12mo. 1874, 8«. *' The notes are sensible and to the point, and give evidence both of care and know- ledge of the subject." — Solicitors' Journal. LIFE ASSURANCE.— Scratchley's Decisions in Life As- surance Law^, collated alphabetically according to the point involved ; with the Statutes. Revised Edition. By ARTHUR SCRATCHLEY, M.A.. Barrister-at-Law. Demy Svo. 1878, 5s. LIQUIDATION BY ARRANGEMENT.-Salaman's Practical Treatise on Liquidation by Arrangement and Composition with Creditors, under the Bank- ruptcy Act, 1869 : comprising the Practice of the OtKce for Registration of Arrangement Proceedings ; the Practice as to Receivers, Injunctions, Meetings of Creditors, &c. ; all the Autho- rised and Original Forms, Bills of Costs under Liquidation and Composition ; Notes of Cases ; the Sections of the Bankruptcy and Debtoi's' Acts ; and the Rules applicable to Liquidation and Com- position; the Rules of 1871. With Index. By JOSEPH SEYMOUR SALAMAN, Solicitor. Crown Svo. Re-issue. 10s. LUNACY.— Elmer's Practice in Lunacy.— The Practice in Lunacy under Commissions and Inquisitions, with Notes of Cases and Recent Decisions, the Statutes and General Orders, Forms and Costs of Proceedings in Lunacy, an Index and Schedule of Cases, Sixth Edition. By JOSEPH ELMER, of the Office of the Masters in Limacy, Svo, 1877 21». *jj* All standa/rd Law WorJcs are kept in Stock, in law calf and other hindinrja. ■ 22 STEVENS AND SONS' LAW PUBLICATIONS. MAGISTERIAL LAW.— Burn.— Virfe « Justice of the Peace." Shirley's Elementary Treatise on Magisterial Law, and on the Practice of Magistrates Courts.— By W. SHIRLEY SHIRLEY, M.A., B.C.L., Esq., Ban-istcr-at-Law. Royal 12mo. ISSl. 6s. 6d. "Wigram. — Vide "Justice of the Peace." MAYOR'S COURT PRACTICE.— Candy's Mayor's Court Practice.— The Jurisdiction, Process.Practice, and Mode of Plead- ing in Ordinary Actions in the Mayor's Court, London (commonly called the "Lord Maj-or's Court"). Founded on Brandon. By GEORGE CANDY, Esq., Barrister-at-Law. Demy 8vo. 1879. 14s. MARRIED WOMEN'S PROPERTY. — Smith's Married Women's Property Act, 1882, with an Introduction and Critical and Explanatory Notes, together with the ISIarried Women's Property Acts, 1870 and 1874, &c. By H. ARTHUR SMITH, of the Middle Temple, Esq., Barrister-at-Law, Author of "The Principles of Equity." Royal 12mo. 1882. 5s. MASTER AND SERVANT.— Macdonell's Law of Master and Servant. Part I, Common Law. Part II, Statute Law. By JOHN MACDONELL, M.A., Esq., Barrister-at-Law, of the South Eastern Circuit. Demv Svo. {Xcarly ready). MERCANTILE LAW.— Boyd.— Tide "Shipping." Smith's Compendium of Mercantile Law. — Ninth Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., one of Her Majesty's Counsel. Royal Svo. 1877. V. ISs. Tudor's Selection of Leading Cases on Mercan- tile and Maritime Law.— With Notes. By O.D.TUDOR, Esq., Barrister-at-Law. Second Edition. Royal Svo. 1868. IZ. 18s. METROPOLIS BUILDING ACTS.-^A^oolrych's Metropoli- tan Building Acts, together with such clauses of the Metro- polis ^Management Acts as more particularly relate to the Building Acts, with "Notes and Forms. Third Edition. By W. H. MAC- NAMARA, Esq., Barrister-at-Law. 12mo. 1882. 10s. MINES.— Rogers' Law relating to Mines, Minerals, and Quarries in Great Britain and Ireland; with a Summary of the Laws of Foreign States, &c. Second Edition Enlarged. By ARUNDEL ROGERS, Esq., Judge of County Courts. Svo. 1876. 11. lis. 6ri. "The volume will prove invaluable as a work of legal reference." — TJie Mining Journal. MONEY SECURITIES.— Cavanagh's Law^ of Money Secu- rities. — In Three Books. I. Personal Securities. II. Securities on Property. III. Miscellaneous; with an Appendix of Statutes. By C. CAVANAGH, B.A-, LL.B. (Lond.), of the Middle Temple, Esq., Barrister-at-Law. In 1 vol. Demy 8vo. 1870. 21s. " Au admirable synopsis of the whole law and practice with rcy'i'd to securities of every sort." — Saturday Hevitw. MORTGAGE.— Coote's Treatise on the La-w of Mort- gage. — Fourth Edition. Thoroughly revised. By WILLIAM WYLLYS ]MACKESON, Esq., one of Her Majesty's Counsel. In 1 Vol. (1436 pp.) Royal Svo. 1880. 21. 2«. "There oiin be no do\ibt that the work is most coni])rehcnsive in its scope and ex- haustive in its treatment, and that it affords to the practitioner a mine of valuable .and trustworthy information conveniently arranb'cd and clcai-ly expressed."— Zaw "A complete, terse, and praptlcal treatise for tlie moilom law\-cr. " — Sohcilors Journal. " Mr. JIackcsciu'.s manner is clear and practical, and in many ca.scs he supplicsu.sefiil .summaries by way of rcLaiiitulatiook is praise- worthy in dcsig-u, scholarly and complete in execution."— i'a/i'/iiTy Rtvieir. *,* AU standard Law Works are kef t in Stock, in law caJf and other bindings. 24 STEVENS AND SONS' LAW PUBLICATIONS. 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" As far as we have examined the volume the learned authors aecm to have pre- sented the profession and the public with tlie most ample information to be found, whether tliey want to know how to start a railway, how to frame its bye-laws, how to work it, how to attack it for injury to pereon or property, or how to wir^ it up." — Law Times. "There can be no doubt that the book under review offers to the practitioner an .Umost indispensable aid in all ca.ses of railway law and its kindred topics. No less than seventy-five Act.f, from the Carriers Act (1 William IV, c. OS), down t» tho Employers' Liability Act, ixissed on the Tth September, ISSO, are set forth in chr. logical order. Between tlie sections are intercalated notes — often lengthy, tlioiigli concisely worded — setting forth the effect of all the decided cases to Novemljer, 1880. . . . The index, for which Mr. Montague Lush is responsible, is full and well executed." — Law Magazine. 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Designed to facilitate the subject for Students preparing for Examination (incorporating the changes effected by the Convey- ancing Act). By JOSEPH A. SHEARWOOD, of Lincoln's Inn, Esq., Barrister-at-Law. Second Edition. Demy 8vo. 1882. 7s. 6d. "VTe heartily recommend the work to students for any examination on real pro- perty and conveyancing, advising them to read it after a perusal of Cither works and shortly before going in for the ex:imination." — Law Student's Jour-iial April 1, 1SS2. " A very useful little work, particularly to students just before their examination." — Gibson K Lnw Sotcs, May, lSS'.i. " Excellently adapted to its purpose, and is in the present edition brought well down to date."- Law Magazine, May, 1SS2. " A very excellent specimen of a student's manual.'" — La7c Jovrnal, Jtay 20, 1S82. " Will be found useful as u stepping-stone to the study of more comprehensive works." — Law Timea, June 17, 1SS2. Shelford's Real Property Statutes. — Ninth Edition. By T. H. 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Completely rearranged and thoroughly revised. By EVELYN FREETH and ROBERT J. WALLACE, of the Legacy and Succession Duty Office. Fourth Edition, containing full infoniiation as to the Altera- tions made in the above Taxes by the 44 Vict. c. 12, and the Stamj: Duty thereby imposed on " Accounts." Royal 12mo. 1881. 12«.6rf. " Contains a great deol of practical information, which i.s likely to uiake it verj' useful to solicitoi-s." — Low Journal. " The mode of treatment of the subject .idopted by the authors is omiiieutlv pric- tical." — Solicitors' Journal. TITHES.— Burnell.— The London City Tithe Act, 1879, and the other Tithe Acts effecting the Com- mutation and Redemption of Tithes in the City of London, u-ith an Introduction and Nott^s, &c. By HENRY BLOMFIELD BURNELL, B.A.. LL.B., of Lincoln's Inn, Esq., Barrister-at-Law. Demy Svo. 1880. 10«. 6d. TORTS,— Addison on Wrongs and their Remedies.— Being a Treatise on the Law of Torts. By C. G. 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Sebastian on the Law of Trade Marks.— The Law of Trade Marks and their Registration, and matters connected therewith, including a chapter on Goodwill. Together with Appen- dices containing Precedents of Injunctions, &c. ; The Trade Marks Registration Acts, 1875 — 7, the Rules and Instructions thereunder; The Merchandise Marks Act. 1862, and other Statutory enactments; The United States Statute, 1870 and 1875, the Treaty with the United States, 1877 ; and the Evdes and Instructions issued in February, 1878. With a copious Index. By liEWIS BOYD SEBASTIAN, B.C.L., M.A., of Lincoln's Inn, Esq., Barrister-at- Law. 8vo. 1878. 14s. " The :Master of the KoUs in liis judgment in Re Pahner's Trade Marks, said ' He was glad to see that the well-known writer on trade marks, Jlr. Sebastian, had taken the same view of the Act."— 7'Ae Tima. May :j, 1SS2. " The book cannot fail to he of service to a larfie class of lawyers.' —Solicitms' Jouittal. " Mr. Sebastian has written the fullest and most methodical book on trade marks which has appea-ed in England since the passing of the Trade JIarks Registration Acts."— Trade 31arks. ,.,,,. ^ " Viewed as a compilation, the book leaves little to be desired. Viewed as a treatise on a subject of growing importance, it also strikes us as being well, and at any rate carefully executed." — Laio Journal. Sebastian's Digest of Cases of Trade Mark, Trade Name, Trade Secret, Goodwill, &c., de- cided in the Courts of the United Kingdom, India, the Colonies, and the United States of America. By LEWIS BOYD SEBASTIAN, B.C.L., M.A., of Lincoln's Inn, Esq., Barrister-at-Law, Author of "TheLawof Trade Marks." Demy Svo. 1879. IZ. Is. " A digest which will be of very great value to all practitioners who have to advise en matters connected with trade laArks."— Solicitors' Journal. Trade Marks Journal. — 4to. Sewed, {Issued fortniyhtly.) Nos. 1 to 262 are noio ready. Net, each Is. Index to Vols. I. to VI. Each Net, 3s. TRUSTS AND TRUSTEES.— Godefroi's Digest of the Principles of the Law of Trusts and Trus- tees.— By HENRY GODEFROI, of Lincoln's Inn, Esq., Barrister-at-Law. Joint Author of " Godefroi and Shortt's Law of Railway Companies." Demy 8vo. 1879. 1^. Is. "No one who refers to tbi.s book for information on a question within its range is, we think, likely to go away unsatisfied."— Sn^ui-i/a;/ Review. " is a work of great utility to the practitioner."— iaw Magazine. " As a digest of the law, Mr. Goiiefroi's work merits commendation, for the author's statements are brief and clear, and for his .statements ho refers to a goodly ai-ray of authorities. In the table of cases the references to the several contemporaneous reports arc given, and there is a very copious index to subjects."- iaui Jourtutl. USES— Jones (W. Hanbury) on Uses.— 8vo. 1862. 7s. VENDORS AND PURCHASERS — Dart's Vendors and Pur- chasers. — A Treatise on the Law and Practice relating to Ven- dors and Purchasers of Real Estate. By J. HENRY DART, of Lincoln's Inn, Esq.. one of the Six Conveyancing Counsel of the High Court of Justice, Chancery Division. Fifth Edition. By the AUTHOR and WILLIAM BARBER, of Lincoln's Inn, Esq., Barrister-at-Law. 2 vols. Royal 8vo, 1876. 3^. 13s. 6rf. " A standard work like Mr. Dart's is beyond all praise."— TV Law Journal. "sTEVENS & SONST 119, CHANCERY LANE, LONDON, W.C. 110, CHANCERY LAXE, LONDOX, W.C. 31 VOLUNTEER L^W— A. Manual of the Law regulating the Volunteer Forces— TnchulinK the Voluntuer Acts, 1S63 to 1869, and other Acts relating tn VolunteerH. With Forms of Complaint, Summons and Order, &<;. By W. A. BURN and W. T. RAY]MOND, Esqrs., Barristers-at-Law, and Captains in H.M. Volunteer Forces. Royal 12nio. 1832. NH 'Ix. WATERS.— Wool rych on the Law of "Waters.— Including Rights in the Sea, Rivers, &c. 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