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THE
LAW OF MASTER AND SERVANT.
BY
E. A. PAEKYN, M.A.
Willis' Workmen's Compensation Act, 1897.
(60 & 61 Vict. Cap. 37.)
With Copious Notes, and an Appendix containing the
Employers' Liability Act, 1890 (58 & 54 Vict. c. 42).
By W. Addinoton Wilus, LL.B. (Lond.), of the
Inner Temple, Barrister-at-Law. Price 2.v. 8f/., post
free.
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undoi-stancling an<l cunipiciicnrting its pro\islons."— Justice 0/
the Peace.
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is a good imlex."— Lata Ihmes.
"A helpful text book, clear in its exposition and directions,
and admirably indexed."— North Eastern Daily Gazette.
Ruegg's Employers' Liability Act.
The Employers' Liability Act, 1880 (42 & 43 Vict,
c. 42). With Statutes affecting same, and Forms,
together with the " Workmen's Compensation Act,
1897," with Notes, Rules and Forms. Third Edition.
By A. H. RuEGG, Q.C., of the Middle Temple. In
preparation.
" A very excellent little treatise . . . rontains abundant
evidence "of care and \-a\iouv ." —Justice of the Peace.
5t|e l^afo
MASTER AND SERVANT
WITH A CHAPTER
APPRENTICESHIP.
EKNEST ALBERT PAEKYN, M.A.,
Of the Inner Temple, Burrister-at-Laic,
LONDON :
BUTTERWOETH & CO., 7, FLEET STREET, E.C.
SHAW & SONS, 7 & 8, FETTER LANE, E.C.
3La\v printers an& ipublisJjcus.
1897.
LONDON : PRINTED BY SItAW AND SONS, FETTER LANE AND CRANE COURT, E.C.
o
I
PREFACE
TJECENT legislation affecting the Law of Master
-^^ and Servant does not apply to several classes of
servants. The Employers and Workmen Act, 1875,
the Employers' Liability Act, 1880, and the Workmen's
Compensation Act of the present year, do not, for
example, include domestic and menial servants, clerks,
shopmen, omnibus and tramway men, and those
employed in professional pursuits. All such servants
come under the Common Law, with which this Work
more particularly deals.
The vexed question of Employers' Liability has now
reached an interesting and important stage. The
discontent regarding the Employers' Liability Act of
1880, on account of its restricted application, the power
of contracting out of it, and its failing to settle the
difficulty of Common Employment, has at last obtained
statutory expression in the Workmen's Compensation
Act just passed, but which does not come into operation
until July 1st, 1898. Although the new statute does
not repeal the Act of 1880, it is anticipated that it will
largely, if not wholly, supersede it. As, however, the
M. & s. « 3
Yl PREFACE.
Workmen's Compensation Act is made applicable only
to certain specified employments — railways, factories,
mines, quarries, engineering works, and partly the
building trade — it by no means settles the question
of Employers' Liability. An acquaintance with the
Common Law on the subject is still, therefore, necessary
and imx')ortant.
The full text of the above-mentioned Statutes will be
found in the Appendix.
Full references to the Eeports of the Cases cited
will be found in the Table of Cases. If the Beport
mentioned in the Text is not one easily accessible to
the reader, he will find all the other Eeports on turning
to this Table, in the compilation of which I have had
the assistance of the work on Master and Servant by
the late Mr. Paterson, placed at my disposal by the
publishers, who own the copyright.
E. A. P.
3, Temple Gardens, Tejitle, E.G.,
October, 1897.
CONTEXTS.
Preface
Contexts
Table of Statutes
Table of Cases . . .
Addenda
Vll
Tiii
Ch^vp.
I. The Parties to the Contract ... ... ... ... ... 1
n. The Contract of Hiring and Service 14
m. The Consideration — Wages 23
IV. Dissohitiou of the Contract — Discharge ... ... ... 33
V. The Rights and Duties of Master and Servant 45
VI. The Rights of the Master as against Third Parties 61
VII. Liability of the Master for Injury to his Servant ... ... 66
VIII. Liability of the Master to Third Parties for the Torts of his
Servant ... ... ... ... ,,. SO
IX. Liability of the Master to Thii-d Parties for the Contracts
of his Servant ... ... ... ... ... ... 101
X. Liability of the Master for Crimes of his Servant ... ... 113
XL Liability, of the Servant to Third Persons 118
XIL Criminal Liability of the Servant 123
XIIL Character 132
XIV. Apprenticeship ... ... ... ... ... 151
Appendix ok Statutes
ISl
Index.
ai
TABLE OF STATUTES.
I'AGE
12Ric. 2, c. 4 152
7 Hen. 4, c. 87 152
14 & 15 Hen. 8, c. 2 157
5Eliz. C.4 151,152,158,160,
171, 173, 174
43Eliz. c. 2 159, 175
21 Jac. l,c. 16 28
14 Car. 2, c. 12 157
29 Car. 2, c. 3 14
3W. & M. c. 11 157
8&9 W. 3, c. 30 175
20 Geo. 2, c. 17 166
31 Geo. 2, c. 11 158
20 Geo. 3, c. 36 175
22 Geo. 3, c. 46 178
32 Geo. 3, c. 56 147
32 Geo. 3, c. 57 178, 179
36 Geo. 3, c. 22 115
37 Geo. 3, c. 98 115
39 Geo. 3, c. 85 127
42 Geo. 3, c. 46 179
54 Geo. 3, c. 96 155, 158
56 Geo. 3, c. 139 157, 178
9 Geo. 4, c. 31 123
1 & 2 Will. 4, c. 22 5
3&4WiIl. 4, c. 63 158
5&6 Will. 4, c. 76 156
6& 7 Will. 4, c. 37 115
6& 7 Vict. c. 86 5
6& 7 Vict. c. 96 114
7&8 Vict. c. 101 176
9& 10 Vict. 0. 93 63, 76, 181
14 & 15 Vict. c. 11 53, 179
14 & 15 Vict. c. 100 127
18 & 19 Vict. 120 13
19 & 20 Vict. c. 64 157
22 & 23 Vict. c. 123 71, 97
24 & 25 Vict. c. 95 5.3, 127
24&26 Vict. c. 96 127
24 & 25 Vict. c. 100... 53, 123, 178
26 & 27 Vict. c. 103 126
27 & 28 Vict. c. 95 182
29 & 30 Vict. c. 117 175
29 &
31 &
31 &
32 &
33 &
34 &
34 &
35 &
35 &
35 &
36 &
37 &
37 &
38 &
38 &
38 &
30 V
32 V
32 V
33 V
34 V
35 V
35 V
36 V
36 V
36 V
37 V
38 V
38 V
39 V
39 V
39 V
ct. c.
ct. c.
ct. c.
ct. c.
ct. c.
ct. c.
ct. c.
ct. c.
ct. c.
ct. c.
ct. c,
ct. c.
38 & 39 Vict. c.
164, 165,
39 & 40 Vict, c,
41 & 42 Vict. c.
42 & 43 Vict. c.
43 & 44 Vict. c.
45 &
45 &
46 &
46 &
47 &
48 &
50 &
51 &
51 &
53 &
54 &
54 &
54 &
55 &
56 &
57 &
57 &
59 &
60 &
46 V
46 V
47 V
47 V
48 V
49 \
51 V
52 V
52 V
54 V
55 V
55 V
55 V
56 V
57 V
58 V
58 V
60 V
61 V
.... 175
.... 128
.... 116
22
To
.... 31
.... 150
71
116
115
20
1(»
9
12, 117
116
...53, 156, 171,
183
90 ... 15, 32, 79,
172, 174, 175, 192
16 22
71
128
... 71, 78, 175,
19!)
75 9, 157, 177
32
31,34
71
150
52
71
34
32
6
175
...22, 158, 161
71
118.
116.
121.
14 .
93 .
31 .
116.
77 .
93 .
94 .
66 .
50 .
62 .
55 .
63 .
86
16
49
42
87
52
53
43
69
58
62
87
39
23
39
75
19
60
57
60
30
53
96
116
178
32
37 79, 202
TABLE OF CASES.
A.
PAGE
Abrahams i\ Deakin, [1891] 1 Q. B. 586 93
Adamson ?'. Jarvis, 4 Bing. 66 ; 12 Moore, 241 ... ... ... 59
Alexander ('. Mackenzie, 6 C. B. 766 ... .., ... ... H
Alexander c. Southey, 5 B. & Aid. 247 119
AIsop V. Yates, 27 L. J. Ex. 156 70
Amor V. Fearon, 9 A. & E. 548 ; 1 P. & D. 398 40
Andrews ?;. Askey, 8 C. & P. 7 65
Andrews?'. Garstein, 31 L. J. C. P. 15; 10 C. B. (s.s.) 444;
7 Jur. (N.s.) 1124 ; 4 L. T. 580 ; 9 W. R. 782 38
Andrews r. Pugh, 24 L. J. Ch. 58 6
Anon r. Harrison, 12 Mod. 346 112
Arding r. Lomax, 24 L. J. Ex. 80 40
Armstrong r. >South London Tram. Co., 64 L. T. 96 ... ... 31
Arnold r. Poole, 4 M. & G. 860 ; 5 Sc. N. R. 741 ; 12 L. J. C. P. 97 ;
7 Jur. 643 12
Ashby V. White, 1 Salk. 19 ; 1 Smith L. C. 227 120
Ashton V. Spiers & Pond (1893), T. L. R. 606 94
Ashworth r. Stanwix, 30 L. J. Q. B. 183 ; 3 E. & E. 701 ;
4L. T. 85; 7 Jur. (x.s.)467 11,69
Aspden I'. Austin, 5 Q. B. 671 ; 13 L. J. Q. B. 155 19
Atkin r. Acton, 4 C. & P. 208 38
Atkins r. Pearce, 26 L. J. C. P. 252; 2 C. B. (n.s.) 763;
3 Jur. (N.s.) 1180 109
Att.-Gen. r. Siddon, 1 Cro. J. 220 ; 1 Tyr. 41 114
Auckland, The Earl of, 30 L. J. Ad. 124 96
Austin r. Bethnal Green, 43 L. J. C. P. 100 ; 29 L. T. 807 ;
38 J. P. 248 ; L. R. 9 C. P. 91 ; 22 W. R. 406 13
B.
Baillie ('. Kell, 4 Bing. N. C. 638 42
Baldry r. Bates, 52 L. T. 620 105
X TABLE OF CASES.
PAGE
Bamfield r. Massej', 1 Camp. 460 65
Banks /•. Crossficld, 44 L. J. M. C. 8 ; 32 L. T. 226 ; 10 Q. B. 97 ;
23W. R. 414 15
Barber V. Dennis, 1 Salk. 68 ; 6 Mod. 69 170
Barrett V. Deere, Moo. & M. 200 107
Barry c. Arnaiul, 10 A. & E. 646 120
Barry r. Dublin Tram. Co., 26 L. R. Ir. 150 93
Bartoiishill v. McGuire, 3 Macq. 309 ... ... ... ... 75
Bartonshill v. Reid, 3 Macq. 266 ; 1 Paters. 785 ... ... 74
Barwick v. English Joint Stock Bank, 36 L. J. Ex. 147 ;
2 Ex. 259 ; 16 L. T. 461 ; 15 W. R. 877 87
Batchelor t;. Fortescue, 11 Q. B. D. 474 78
Baxter r. Burfield, 2 Stra. 1266 167,171
Baxter v. Nurse, 6 M. & G. 938 ; 13 L. J. C. P. 82 18
Beckham r. Drake, 9 M. & W. 79 11
Bell V. Drummond, 1 Peake, 65 ... ... ... ... ... 25
Bedford^. McKowl, 3Esp. 119 65
Beeston v. Collyer, 4 Bing. 309 ; 12 Moore, 552 14, 16
Bennett w. Alcot, 2 T. R. 166 64
Bergheim v. S. E. R. Co., 17 Q. B. D. 215 90, 93
Bertie I'. Beaumont, 16 East, 33 ... ... ... ... ... 7
Besley v. Davies, 1 Q. B. D. 84 ; 45 L. J. M. C. 27 115
Bettini v. Gye, 1 Q. B. D. 183 ; 45 L. J. Q. B. 209; 34 L. T. 246 ;
24W. R. 551 44
Beveridge r. Beveridge, L. R. 2 Sc. Ap. 183 ; 2 Paters. 1976... 12
Bird r. McGahey, 2 C. & K. 707 24
Bird V. Randall, 3 Burr. 1345 27,62
Birkett V. Whitehaven, 28 L. J. Ex. 348 90
Bishop V. Letts, 1 F. & F. 401 22
Blades V. Tree, 9 B. & C. 169 112,122
Blake t^. Lanyon, 6 T. R. 221 62
Bloxam V. Elsie, 1 C. & P. 558 50
Boastt;.Firth,38L.J.C.P.l;4C.P.l; 19L.T.264; 17W.R.29 167
Bolton V. Hillersden, 1 Ld. Raym. 224 103
Bolton V. Lambert, 58 L. J. Ch. 425 112
Bond t>. Evans, 21 Q. B. D. 249 103
Boston V. Ansell, 39 Ch. D. 339 ; 59 L. T. 345 44
Bound V. Lawrence, 61 L. J. M. C. 21 ; 56 J. P. 118 79
Bower v. Pcatc, 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 84
Brace I'. Calder, [1895] 2 Q. B. 253 34
Bracegirdle v. Heald, 1 B. & Aid. 722 14, 45
Brady ?;. Giles, 1 Mo. & Rob. 1 99
Brady v. Todd, 30 L. J. C. P. 223 ; 4 L. T. 212 ; 9 C. B. (n.s. ) 502 105
Bradshaw v. Hayward, Car. & M. 591 23, 29
TABLE OF CASES. XI
PAGE
Breay v. Royal Nurses Association, 1 W. N. (1897) 63 ... 61
Brennan r. Uilbart Smith, 8 T. L. R. 284 36
Bridge I'. G. J. R. Co.,3M. & N. 244 9.5
Bright f. Lucas, 2 Peake, 121 170
Britain i: Rossiter, 11 Q. B. B. 123 ; 48 L. J. Ex. 362 ;
40 L. T. 240 ; 27 W. R. 482 20
Britton V. G. W. Cott. Co., 7 Ex. 130; 41 L. J. Ex. 99;
27 L. T. 125 ; 20 W. R. 525 71
Brooks 1-. Dawson, 33 J. P. 720 158,168
Brooks r. Hassall, 49 L. T. 669 105
Brown V. Chapman, 6 C. B. 365 131
Brown I'. Copley, 7 M. & G. 566 86
Browni'. Croft, 6 C. & P. 46 27
Brown r. Foot, 61 L. J. M. C. 160 116
Brownr. Hall, 6 Q. B. D. 333 62
Brown f. Symons, 29 L. J. C. P. 251 ; 8 C. B. (k.s.) 208;
8W. R. 460; 5 Jur. (x.s.) 1079 18
Bryant 1-. Flight, 5 M. &W. 114 24
Brj-don r. Stewart. 2 Macq. 30 ; 1 Paters. 447 67, 68
Brunsden r. Humphrey, 53 L. J. Ex. 476 100
Buckingham /•. Surrey, 46 L. T. 685 ; 46 J. P. 774 17
Buller I'. Harrison, Cowp. 565 122
Burgess v. Gray, 1 C. B. 578 ; 14 L. J. C. P. 184 84
Burleigh r. Stibbs, 5 T. R. 465 160
Biu-uley r. Carson, [1891] 1 Q. B. 75 158
Burnley r. .Jennings, 6 Esp. 8 160
Bush r. Steinman, 1 B. & P. 404 82
Butler r. Basing, 2 C. & P. 613 90,119
Butterfield I'. Forrester, 11 East, 60 95
C.
Callo v. Brouncker, 4 C. & P. 518 36, 37, 40
Cameron r. Nystrom, [1893] App. Cas. 308 77, 97
Carey I'. Webster, 1 Stra. 480 118,122
Carol 17. Bird, 3 Esp. 202 i32
Carr i'. Clarke, 2 Chit. Rep. 260 63
Cams V. Eastwood, 32 L. T. 855 15
Chamberlain c. Bennett, 8 T. L. R. 234 36
Cliandler r. Broughton, 1 C. & M. 29 : 3 Tyr. 220 ... 95,96
Charles r. Blackwell, 45 L. J. C. P. 542 ; L. R. 2 C. P. 151 ... 106
Charleston r. London Tram. Co., 36 W. R. 367 . 93
Xll TABLE OF CASES.
PAGE
Chostcrtield's case, 2 Salk. 479 159,160
Child ('. Affleck et Ux., 9 B. &C. 403; 4 M. & Ry. 388 ... 140
Clierry v. Hemming, 4 Ex. 631 ; 19 L. J. Ex. 63 15
Chipchase's case, 2 East. P. C. 567 ; 2 Leach, 699 125
Chisholm v. Doulton, 22 Q. B. D. 736 117
Churchward v. Chambers, 2 F. & F. 229 37, 48
Clark V. Bury ^t. Edmunds, 26 L. J. C. P. 12 ; 1 C. B. (n.s. ) 23. . . 7
Cockayne *'. Hodgkinson, 5 C. & P. 543 ... ... ... 143
Collins )'. Locke, L. R. 4 App. 674; 48 L. J. P. C. 68; 41
L. T. 292; 28 W. R. 189 30
Collins I'. Price, 5 Bing. 132 ... ... ... ... ... 27
Contract Co., Re, 8 Eq. 14 12
Cooper r. Phillips, 4 C. & P. 581 58
Cooper I'. Simmons, 31 L. J. M. C. 138 ; 5 L. T. 712 ; 7 H. &
N. 707 ; 10 W. R. 270 ; 8 Jur. (x.s.) 81 158, 167
Cooper V. Slade, 6 H. L. C. 793 ; 27 L. J. Q. B. 449 ; 4 Jur.
(N.s.)791 114
Corn V. Matthews, [1893] 1 Q. B. 310 151, 163
Cornwall's case, 2 Stra. 881 123
Couchman v. Sillar, 22 L. T. 480 ; 18 W. R. 757 172
Coulbomn ?'. Patmore, 1 C. M . & R. 73 60
Coupe Co. V. Maddick, [1891] 2 Q. B. 413 87
Coventry *'. Woodhall, Hob. Rep. 134 171,172
Cowan i'. Milbourn, 36 L. J. Ex. 124 43
Cowlesi'.Potts,34L.J.Q.B.247 ; llJur.(N.s.)946; 13W.R.858 143
Cox V. Midland Rail. Co., 48 L. J. Ex. 65 ; 3 Exo. 268 ... 109
Coxhead v. Mullis, 47 L. J. C. P. 761 ; 39 L. T. 349 ; 3
C. P. D. 439 ; 42 J. P. 808 ; 27 W. R. 136 9
Cranch v. White, 1 Scott, 314; 1 Bing. N. C. 414 118
Crane v. Powell, 38 L. J. C. P. 43 ; 20 h. T. 703 ; L. R. 4
C. P. 123 ; 17 W. R. 161 :.. 15
Crocker V. Molyneux, 3 C. & P. 470 20
Croft t>. Alison, 4 B. & Ad. 590 81,86
Crofts I'. Watcrhouse, 3 Bing. 321 89
Crowther r. Ramsbotham, 7 T. R. 754 42
Cuckson V. Stones, 28 L. J. Q. B. 24 ; 1 E. & B. 248;
7 W. R. 134; 5 Jur. (N.s.)337 26,44
Cullen V. Thompson, 6 L. T. (x.s.) 870; 9 Jur. (x.s.) 85;
4 Macq. 424; 2 Paters. 1143 119
Cundy v. Lecocq, 13 Q. B. 1). 207 ; 53 L. J. M. C. 125 ; 51
L. T. 265; 48 J. P. 599 ; 32 W. R. 769 115
Cunningham v. Fonblanque, 6 C. & P. 44 ... ... ... 39
Cussons V. Skinner, 11 M. & W. 171 ; 12 L. J. Ex. 347 37, 42
Cutter ('. PowelL 6 T. R. 826 15
TABLE OF CASES. Xlll
D.
PAGE
Dalyell r. Tyrer, 28 L. J. Q. B. 52 ; E. B. & E. 899 ; 5 Jur.
(N.s.)335 ^
Dausey v. Richardson, 3 E. & B. 144 ; 23 L. J. Q. B. 217 ... 9
Davcy V. Shannon, 48 L. J. Ex. 459 ; 40 L. T. G28 ; 4 Ex. D. 81 ;
27 W. R. .'J99 1^
Davidson r. Stanley, 2 M. & G. 721 109
Da\nes 1'. Davies, 9 C. & P. 89 52
Davies r. England, .33 L. J. Q. B. 321 ; 10 .Jur (n.s.) 1235 ... 68
Davis, Ex parte, 5 T. R. 715 165
Davis y. Foreman, [1894] 3 Ch. 654 21
Davis r. Mann, 10 M. & W. 546 95
Davis r. Marshall, 4 L. T. (x.s.) 266 ; 9 W. R. 520 17
Davis ?;. Russell, 5 Bing. 354 131
Davison r. Reeves, 8 T. L. R. 391 33
Dean r. Braithwaite, 5 Esp. 36 98
Debenham v. Mellon, 5 Q. B. D. 394 ; 6 App. Cas. 24 ; 50 L. J.
Q. B. 155 ; 43 L. T. 673 ; 29 W. R. 141 ; 45 J. P. 252 ... 10
De Francesco ?'. Barnum, 43 Ch. 165 1"3
De Francesco i\ Barnum, 45 Ch. D. 430 162, 164
De Francesco r. Barnum, 63 L. T. 514 ; 6 T. L. R. 486 ... 62
Degg v. Midland Rail. Co., 26 L. J. Ex. 171 ; 1 H. & N. 773 ;
3 Jur. (N.s.)395 V8
Ditcham r. Bond, 2 M. & S. 436 63
Dixon t'. Fawcus, 30 L. J. Q. B. 137 59
Dixon V. Renter, 46 L. J. Q. B. 197 98
Dobson r. CoUis, 25 L. J. Ex. 267 ; 1 H. & N. 81 15
Dobsonr. Jones, 13 L. J. C. P. 126; 5 M. & G. 112 ; 8 Sc.
N. R. 80 7
Donaldson r. Williams, 1 Cr. & M. 345; 3 Tyr. .371 ... H, 34
Donovan r. Laing, [1893] 1 Q. B. 629 74, 97
Down r. Pinto, 9 Ex. 327 ; 23 L. J. Ex. 103 19
Dunkley r. Ferris, 11 C. B. 457 87
Dunn r. Sayles, 5 Q. B. 685 ; 13 L. J. Q. B. 159 19
Dyer v. Munday, [1895] 1 Q. B. 742 88, 93
Dynen v. Leach, 2(i L. J. Ex. 221 68, 70
Dyte V. St. Pancras, 27 L. T. 342 ; 36 J. P. .375 12
E.
Eaton V. Western, 9 Q. B. D. 636 ; 52 L. J. Q. B. 41 ; 47 L. T.
593 ; 47 J. P. 196 158,162,168,172
XIV TABLE OF CA&ES.
PAGE
Edden r. Read. 3 Camp. ;W9 121
Edmondson r. IMachell, 2 T. R. 1 65
Edmondson v. Stevenson, Bull. N. P. 8 ... 133, 141
Edwards V. Levy, 2 F. & F. 94 37
Elborough I'. Ayres, L. R. 10 Eq. 3G7 61
Eley V. Positive, 45 L. J. Ex, 58 ; 34 L. T. 141 ; 1 Ex. D. 88 ;
24W. R. 338 12
Ellen V. Topp, 20 L. J. Ex. 241 ; 6 Ex. 424 ; 15 Jur. 451 .. . 170, 172
Ellis V. Sheffield Gas Co., 2 E. & 1). 767 ; 23 L. J. Q. B. 45 ... 84
Emmens v. Elderton, 4 H. L. C. 624 ; 13 C. B. 495 ; 18 Jiir. 21 19
Engelhart v. Farrant, [1897] 1 Q. B. 240 85
Evans V. Birch, 3 Camp. 10... ... ... ... ... ... 112
Evans v. Roe, L. R. 7 C. P. 138 ; 26 L. T. 70 18
Evans v. Walton, L. R. 2 C. P. 615 ; 36 L. J. C. P. 307 ; 17
L. T. 92 ; 15 W. R. 1062 62,64
Fairman r. Oakford, 29 L. J. Ex. 459 ; 5 H. & N. 635 ... 18
Farquhar r. Naish, 17 Ct. of Sess. Cas. 716 (Sc.) 38
Farrow v. Wilson, L. R. 4 C. P. 764 ; 38 L. J. C. P. 326 ; 20
L. T. 810 ; 18 W. R. 43 33
Fawcett v. Cash, 5 B. & Ad. 904 ; 3 N. & M. 177 15, 35
Fellows V. Wood, 59 L. T. 513 164,173
Feltham v. England, L. R. 2 Q. B. 33 ; 7 B. & S. 676 ; 15
W. R. 151 ; 36 L. J. Q. B. 14 77
Fenn ?;. Harrison, 3 T. R. 760 105
Ferguson V. Taylor, 9 B. & C. 59 112
Ferris V. Carr, 54 L. J. Ch. 478 [ 167
FeAvings r. Tisdal, 1 Ex. 295 ' 27
FilleuH'. Armstrong, 7 A. & E. 557 ; 2N. &P. 406 ; 1 Jur. 921... 42
Fletcher v. Krell, 42 L. J. Q. B. 55 ; 28 L. T. 105 ... 38, 147
Flood V. Jackson, [1895] 2 Q. B. 21 ; 64 L. J. Q. B. 665 ... 5
Ford V. Harrington, 39 L. J. C. P. 107 ; 21 L. T. 609 ; L. R.
5 C. P. 282 ; 18 W. R. 289 8
Fores w. Wilson, 1 Peake, 55 63,64,65
Forgan V. Burke, 12 Ir. C. L. R. 495 16
FoAvler v. Lock, 41 L. J. C. P. 99 ; 43 L. J. C. P. 394 ; 31
L. T. 844; L. R. IOC. P. 90 i 23 W. R. 415 5
Fox V. Dalby, 44 L. J. C. P. 42 ; L. R. 10 C. P. 285 ; 31
L. T. 478 ; 23 W. R. 244 8
Foreman v. Canterbury (Mayor of), 40 L. J. Q. B. 138 ... 83
Foster v. Cliarles, 6 Bing. 396 ; 7 Ring. 105 ; 4 M. & P. 741 .„ 146
TABLE OF CASES. XV
PAGE
Foulger r. Newcomb, 36 L. J. Ex. 169 146
Fountain r. Boodle, 3 Q. B. 5 ; 2 G. & D. 455 138, 139
Fryer v. Kinncrsley, 33 L. J. C. P. 98 ; 15 C. B. (n.s.) 422 ;
9 L. T. 415 ; 10 Jur. (n.s.) 441 ; 12 W. R. 155 136
Furlong v. South London Tramways Co., 48 J. P. 322 93
G.
Gallagher v. Piper, 33 L. J. C. P. 329 ; 16 C. B. (t^.s.) 669 ... 77
Gambier r. Lydford, 3 E. &B. 346 ; 23 L. J.M.C. 69 ; 18 Jur. 352 8
Gandall V. Pontigny, I Stark. 198 27,35
Gardner r. Slade and wife, 13 Q. B. 796; IS L. J. Q. B. 334;
13 Jur. 826 141
Garth ('. Howard, 8 Bing. 451 110
Geakesr. Jack.son, 36 L. J. C. P. 108 106
Gibson r. Carruthers, 8 M. & W. 343 31,34
Gilpin V. Fowler, 23 L. J. Ex. 152 ; 9 Ex. 615 ; 18 Jur. 292 ... 138
Gingell r. Glasscock, 8 Bing. 86 ... ... ... ... ... 107
Girardy v. Richardson, 1 Esp. 13 ; 1 B. & P. 340 29
Gratland v. Ficcnian, 3 Esp. 85 ... ... ... ... ... Ill
Gray V. Cookson, 16 East, 13 100,166
Gray v. PuUen, 34 L. J. Q. B. 265 84
G. W. Rail. Co. v. Willis, 34 L. J. C. P. 195 ; 18 C. B. (n.s.) 748 110
Greenway V. Fisher, 1 C. & P. 190 118
Gregory t'. Cottrell, 5 E. & B. 571 107
Gregory u. Piper, 2 B. & C. 591 88
Griffiths V. Dudley, 51 L. J. Q. B. 543; 9 Q. B. D. 357;
47 L. T. 10 ; 46 J. P. 711 ; 30 W. R. 797 79
Griffiths V. Gidlow, 27 L. J. Ex. 405 ; 3 H. & N. 648 70
Griffiths V. London and St. Katheriue Dock Co. , 19 Q. B. D. 259 ;
53 L. J. Q. B. 504 ; 51 L. T. 533; 33 W. R. 35 68
Grimston v. Cunningham, [1894] 1 Q. B. 125 22
Grinnell r. Wells, 7 M. & G. 1042; 14 L. J. C. P. 19;
8 Jur. 1101 ; 8 Sc. N. R. 741 63, 65
Grizzle ^j. Frost, 3 F. & F. 623 71
Grylls r. Davis, 2 B. & Ad. 516 59
Gunter V. Astor, 4 Moore, 12 169
Gwilliam v. Twist, [1895] 2 Q. B.184 ; 64 L. J. Q. B. 474 ... 51,
95, 109
Gylbertr. Fletcher, Cro. Car. 179 162, 170, 173
H.
HalU'. Hollander, 4 B. & C. 660 63
XVI
TABLE OF CASES.
Halliwell v. Coimsell, ^8 L. T. 176
Hammond r. Rogers, 7 Moore P. C. C. 160
Hamon r. Falle, L. R. 4 App. Cas. 247
Hanna, The, 36 L. J. Ad. 1
Hargreave r. Lc Breton, 4 Bur. 2425
Harmer v. Cornelius, 28 L. J. C. P. 86; 5 C. B. (n.s.)236;
4 Jur. (N.s.) 1110
Harper v. Luftkin, 7 B. & C. 387 ; 1 M. & Ry. 166
Harrington v. Churchward, 29 L. Ch. 521 ; 6 Jur. (n.s.) 576;
8W. R. 302
Harris r. Carter, 3 E. & B. 559 ; 23 L. J. Q. B. 295 ; 18
Jur. 1014
Harris v. Thompson, 13 C. B. 333...
Harrison v. Bush, 25 L. J. Q. B. 25; 5 E. & B. 344; 1
Jur. (N.s.) 896
Hartley v. Cummings, 5 C. B. 247 ; 17 L. J. C. P. 84
Hawtayne v. Bourne, 7 M. & W. 595
Hazard v. Tread well, 1 Stra. 506 ...
Hedgley I'. Holt, 4 C. & P. 104
Hedley r. Pinkney & Sons, [1894] App. Cas. 222
Helyear v. Hawke, 5 Esp. 72
Henkel ?•. Pape, 40 L. J. Ex. 15
Hern f. Nichols, 1 Salk. 285
Hilton V. Eckersley, 25 L. J. Q. B. 199 ; 6 E. & B. 47
Jur. (n.s.) 587
Hiscox 'V. Greenwood, 4 Esp. 174 ...
Hitchcock V. Coker, 6 A. & E. 438 ; 1 N. & P. 796
Hobbs r. Young, 3 Mod. 317
Hochster v. De la Tour, 2 E. & B. 678 ; 22 L. J. Q. B. 455
17 Jur. 972
Hodsall V. Stallybrass, 11 A. & E. 301
Hodsoll V. Taylor, 43 L. J. Q. B. 14 ; L. R. 9 Q. B. 79 :
29 L. T. 53 ; 22 W. R. 89
Holcroft I'. Barber, 1 C. & K. 4 ...
Holder v. Soulby, 29 L. J. C. P. 246 ; 8 C. B. (n.s.) 254
Hole V. Sittingbournc, 30 L. J. Ex. 81 ; 6 H. & N. 488
Holmes v. Clarke, 31 L. J. Ex. 356; 9 L. T. 178; 7 H. & N. 937
9 W. R. 419; 7 Jur. (n.s.) 397
Holmes r. N. E. R. Co., 40 L. J. Ex. 121 ; L. R. 6 Ex. 123
24L. T. 69
Howard v. Chapman, 4 C. & P. 508
Howard v. Crowther, 8 M. & W. 601
Howard v. Sherrard, 36 L. J. C. P. 42 ; L. R. 2 C. P. 150 .,
Howell V. Batt, 2 Nev. & M. 381 ; 5 B. & Ad. 354
PACE
168, 170
96
144
96
134
39
64
25
141
.. 143
.. 19
.. 109
.. 103
.. 28
.. 177
.. 105
.. Ill
87, 107
2
.. 30
.. 108
.. 29
.. 153
45
63
65
18
91
84
70
78
110
65
105
121
TABLE OF CASES. XVll
PAGE
Hughes V. Humphreys, 6 B. & C. 620 ; 9 D. & R. 715 160
number r. Derby, 15 L. T. 538 167
Hunt y. Colsous, 3 Mo. & Sc. 790 7
Hunt v. G. N. R. Co. (No. 1 ), [1891] 1 Q. B. 601 ; 60 L. J. Q. B. 216 79
Hunter r. Berkeley, 7 C. & P. 413 108
Huntley r. Bedford Hotel Co. (1892), 56 J. P. 55 90
Hurrell r. ElUs, 2 C. B. 295 145
Hussey r. Pacey, 1 Lev. 188 50
Hutchinson r. Y. N. & B. Rail. Co., 19 L. J. Ex. 296;
5 Ex. 352 68,73
Huttman v. Boulnois, 2 C. & P. 510 20, 27, 35
Huzzey r. Field, 2 C. M. & R. 432 81
Hyeman r. Nye, 6 Q. B. D. 635 89
Hlidge i\ Goodwin, 5 C. & P. 190 8
Imperial Loan Co. v. Stone, [1892] 1 Q. B. 599 11
Ingerson v. Miller, 47 Barb. 47 (Am. Cas.) 64
Inglisi'. East Indian Co., 18 L. T. 93 26
Ipswich Tailors case, 11 Co. 54 n 155
Irwin V. Brandwood, 33 L. J. Ex. 257 ; 2 H. & C. 960 ... 146
Irwin r. Dearman, 11 East, 23 ... ... ... ... ... 65
Jackson f. Tollett, 2 Stark. 38 89
Jacquot V. Bourra, 3 Jui-. 776 ; 7 Uowl. 348 ... ... ... 37
Jenkins i\ Gould, 3 Russ. 385 51
Jewin r. Busk, 5 Taunt. 302 25
Joel V. Morison, 6 C. & P. 501 86
Johnson *•. Evans, 3 Esp. 32 143
Johnson r. Lindsay, [1891] App. Cas. 371 70, 70, 97
Jones, In re, Ex parte Lloyd (No. 2), [1891] 2 Q. B. 231 ... 31
Jones V. Brown, 1 Esp. 217 ... ■•■ ■■• • • ... 64
Jones r. Hart, 2 Salk. 441 81
Jones V. Liverpool, 14 Q. B. D. 890 3, 100
Jones V. Victoria, 46 L. J. Q. B. 216; .36 L. T. 347;
2 Q. B. D. 314 ; 25 W. R. 501 15
Jordan v. Norton, 4 M. & W . 1 55 11
M. & s. h
XVlll
TABLE OF CASES.
K.
Kaye i\ Brett, 5 Exch. 269
Kearley r. Tongo, GO L. J. M. C. 159
Kelly V. Partington, 4 B. & Ad. 700
Kemp V. Caddington School Board, 9 T. L. R. 301
Kennedy r. Brown et Ux, 32 L. J. C. P. 137 ; 7 L.,T. (n.s.
11 W. R. 284 ; 13 C. B. (n.s.) 677 ; 9 Jur. (n.s.) 119
Kent r. Shnckard, 2 B. & Ad. 803
King /'. London Improved Cab Co., 23 Q. B. D. 281 ...
King V. Spurr, 51 L. J. Q. B. 105; 8 Q. B. D.
45L. T. 709
King ('. Waring, 5 Esp. 13...
Knight r. Cihbs, 1 A. & E. 43
PAGE
110, 111
... 116
1.S5, 139, 140
... 39
s.)626;
104
8
90
6
134
145
Lamb v. Attenborongh, 31 L. J. Q. B. 41 ; 8 Jnr. (n.s.) 280;
1 B. &S. 831 ; 10 W. R. 211
Lamb v. Bunco, 4 M. & 8. 275
Lambert r. Northern, 18 W. R. 180
Lane v. Cotton, Ld. Raym. 646 ; 12 Mod. 482 ...
4
55
Langan v. G. W. Rail. Co., 30 L. T. 173
Latter r. Braddell, 50 L. J. Q. B. 448 ; 44 L.
45 J. P. 520 ; 29 W. R. 366
Laugher r. Pointer, 5 B. & C. 554...
Lawler v. Linden, 10 Ir. Rep. C. L. 188
Learoyd v. Brook , [ 1 89 1 ] 1 Q. B. 43 1
Lees r. Whitcomb, 5 Bing. 34
Leeward ('. Basilce, 1 Salk. 406 ...
Leloir I'. Bristow, 4 Camp. 134
Leroux v. Brown, 22 L. J. C. P. 1 ; 12 C. B. 801 ; 16 Ju
Lesage v. Coussmaker, 1 Esp. 1 88 . . .
Leslie v. Kirkpatrick, 3 Q. B. 1). 229 ; 47 L. J. M
67L. T. 461
Lewis V. Peachey, 31 L. J. Ex. 496; 1 H. &
low. R. 797
Lightly V. Clouston, 1 Taunt. 112
Lilley v. El win, 11 Q. B. 742; 17 L. J. Q.
12 Jur. 623 17,
Limland r. Stcplicn.s, 3 Esp. 269
Limpus r. L. C. Oni. Co., 32 L. J. Ex. 34 ; 1 H. & C.
, 114, 118, 120
109
T. 369 ;
38
82, 98
2
162, 166, 170
160, 170, 171
63
19,28,51
-.1021... 14
... 23
C. 22 ;
... 164
C. 518;
... 166
169
B. 132;
26, 27, 37, 48
... 45
526 ... 86
TABLE OF CASES. XIX
PAGE
Lion, The, 38 J.. .1. Ail ol 96
Lloyd V. Elackbuni, 11 L. J. Ex. 210; 9 M. & W. 363;
1 Dowl. (N.s.)647 168
L. G. Om. Co. V. Booth, 63 L. J. Q. B. 244 94
Long w. Home, 1 C. & P. 610 106
Louis f. Smedley, 73 L. T. 226 21
Lowe V. G. N. Rail. Co., 62 L. J. Q. B. 524 94
Lowe V. Walter, 8 T. L. R. 3o8 .... 36
Lowry t'. Akenhead, Bull. N. P. 8 134
Lucas V. Mason, 44 L. J. Ex. 145 ; 33 L. T. 135 ; L. R.
10 Ex. 251 ; 23 W. R. 924 2
Lucey v. Ingram, 3 M. & W. 302 ... ... ... ... ... 96
Ludlow r. Charlton, 6 M. & W. 815 2
Lumley v. Gye, 22 L. J. Q. B. 463; 2 E. & B. 216;
17Jur. 827 2,62
Lynch c. Knight, 9 H. L. C. 577 145
Lynch r. Nurdin, 1 Q. B. 29 71
Lyons v. Martin, 8 A. & E. 512 ; S^N. & P. 509 ... 88, 92
M.
McCallum i: N. B. Rail. Co., 20;Ct. Sess. Cas. 388 (Sc.) ... 77
Mackay y. Ford, 29 L. J. Ex. 404 35
McKenzie v. Douglas, 6 Q. B. D. 145 ; 50 L. J. Q. B. 289 ... 89
M'Laughlin r. Pryor, 4 M. & G. 48; Car. & M. 354;
4Sc. N. R. 655 100
McMamis r. Crickett, 1 East, 106 95,96,119
Maddick V. Marshall, 17 C. B. (n.s.) 829 ; 16 C. B. (x.s.)387... 106
Makepeace r. Jackson, 4 Taunt. 770 50
Mallan v. May, 11 M. & W. 653: 12 L. J. Ex. ^76;
7. Tar. 536 30
Manby r. Witt, 25 L. J. C. P. 294; 18 C. B. (n.s.) 544;
2 Jur. (N.s.) 1004
Mann v. Ward, 8 T. L. R. 699
Mansfield v. Scott, 1 CI. & F. 329
Manzoni v. Douglas, 6 Q. B. D. 145 ; 50 L. J.
Marshall v. York, N. & B. Rail. Co., 21 L. J.
Martin r. Temperley, 4 Q. B. 298 ; 12 L.
3G. &D. 447; 7 Jur.. 150
Martin r. Ward, C. S. Cas. 814
Maunder v. Conyers, 2 Stark. 281
Maunder r. Venn, M. & M. 323
Maw i\ Jones, 25 Q. B. D. 107
... 142
... 85
... 23
Q. B. 289
... 89
C. P. 34
... 90
J. Q. B.
129;
81,97
93
...
... 108
64
... ...
... 166
XX TABLE OF CASES.
PAGE
Mayhew r. Boyce, 1 Stark. 423 89
Mayhew v. Suttle, 4 E. & B. 347 ; 24 L. J. Q. B. 54 ;
IJur. (N.s.)303 7
Meakin v. Morris, 12 Q. B. D. 352; 53 L. J. M. C. 72;
48 J. P. 344 ; 32 W. R. 661 151,163
Medawar v. Grand Hotel Co., [1891] 2 Q. B. 11 90
Mellors v. Shaw, 30 L. J. Q. B. 333 ; 1 B. & S. 437 ;
7 Jur. (x.s.)845 69
Mercer v. ^\^lall, 5 Q. B. D. 447 ; 14 L. J. Q. B. 267 ;
9Jur. 576 43
Merryweather v. Moore, [1892] 2 Cli. 518 ; 61 L. J. Cli. 505 ... 21
Merryweather ?,'. Nixon, 8 T. R. 186 118
Mersey Docks v. Gibbs, 35 L. J. Ex. 225 ; 1 H. L. 93 ;
14 W. R. 872 ; 14 L. T. 677 ; 12 Jur. (x.s.) 871 91
Michael v. Alestree, 2 Levinz, 172 80
Miller v. Aris, 3 Esp. 231 ; Sehv. N. P. 103 122
Miller v. Hamilton, 5 0. & P. 433 103, 104
Millership I'. Brookes, 29 L. J. Ex. 369 160
Milligan v. Wedge, 12 A. & E. 737 ; 1 Q. B. 714 83
Mires y. Solebay, 2 Mod. 242 119
Mitchel V. Reynolds, 1 Sm. L.C. 356; 10 Mod. 130 ; 1 P.Win. 181 30
Mitchell !•. Crassweller, 13 C. B. 237 86,92
Molton v. Cararoux, 18 L. J. Ex. 356 ; 4 Ex. 17 11
Monk V. Clayton, quoted in Nickson v. Brohan, q.r. ... ... 103
Monkman 2-. Shepherd.son, 11 A. & E. 411 23
Moore i7. Smith, 39 J. P. 772 165
Morgan ?•. London General Omnibus Co., 13 Q. B. D. 832;
53 L. J. Q. B. 3.52 ; 51 L. T. 213 ; 48 J. P. 503 ; 32 W.R. 759 79
Morison v. Thompson, 43 L. J. Q. B. 215 ; L. R. 5 Q. B. 480 ;
30 L. T. 869 ; 22 W. R. 859 49
Morley n Gaisford, 2 H. Bl. 441 88
Motion V. Michand, 8 T. L. R. 253, 447 4
Mulken v. Metropolitan Rail. Co., 8 T. L. R. 232 94
Mullins V. Collins, 43 L. J. M. C. 110 ; 9 Q. B. 292 ; 29 L.T. 838;
38 J. P. 84 ; 22 W. R. 297 115
Murphy v. Phillips, 35 L. T. 477 ; 24 W. R. 647 68
Murphy v. Smith, 12 L. T. (n.s.) 605 ; 19 C. B. (n.s.) 361 ...71, 77
Murray v. Currie, 40 L. J. C. P. 26 ; L. R. 6 C. P. 24 ;
23 L. T. 557 ; 19 W. R. 104 82
Mytton V. Midland Rail, Co., 28 L. J. Ex. 385 90
•N.
Nash r, Armstrong, IOC. B. (x.s.) 259 169
TABLE OP CASES. XXI
PAGE
Neile i'. Tiuton, 4 Bing. 149 .« HI
Neuwith y. Over Daiwen, 63 L. J. Q. B. 290 94
Newby v. Wiltshire (1785), 2 Esp. 739, quoted in 3 B. & P. 247
(1802) ; 4 Doug. 284 28,55
Xewman i,-. Jones, 17 Q. B. D. 132 116
Nichol V. Marty n , 2 Esp. 732 62
Nichols V. Hall, 42 L. J. il. C. 105 ; 23 L. T. 473 ; 21 W.R. 579;
8C. P. 322 116
Nicholson v. Bradfield, 35 L. J. Q. B. 176 ; 14 L. T. 830 ;
L. R. 1 Q. B. 620 ; 30 J. P. 549 ; 14 W. R. 731 12
Nicholson r. Mounsey, 15 East 384 97
Nickson r. Brohan, 10 Mod. 109 51,102,103
Nicoll V. Greaves, 33 L. J. C. P. 259 ; 10 L. T. (x.s.) 531 ;
17 C. B. (xv.s.) 27 ; 10 Jur. (x.s.) 919 ; 12 W. R. 961 ... 2
Niven r. Greaves, 55 J. P. 548 117
Nordenfelt v. Maxim-Nordeufelt, [1894] A. C. 535 30
North's case. Lord, Dyei-, 161 97
Nottage V. Jackson, 11 Q. B. D. 627; 52 L. J. Q. B. 760;
49 L. T. 339 ; 32 W. R. 106 50
Nowlan i'. Ablett, 2 C. M. & R. 54 1
0.
O'Byrnev. Burn, 16 Ses. Ser. (Sc. Rep.) 1025 77
Oldtield V. Furness, Withey & Co., 9 T. L. R. 515 4
Olive v. Eames, 2 Stark. 181 106
O'Niel I'. Armstrong, [1895] 2 Q. B. 418 31
Oppenheim v. White Lion Hotel Co., 40 L. J. C. P. 93 ;
6 C. P. 515 ; 25 L. T. 93 90
Oriental Bank Corp. (McDowall's case). In re, 55 L. J. Ch. 620 34
Ormond c. Holland, E. B. & E. 102 69
Ormond, Lady ('. Hutchinson, 13 Ves. 53, 92 51
Osborn v. Gillctt, 42 L. J. Ex. 53 ; L. R. 8 Ex. 88 ; 28 L.T. 197 ;
21 W. R. 409 63
Osbora i\ Guy's Hospital, 2 Stra. 728 23
Overton v. Freeman, 11 C. B. 867 ; 21 L. J. C. P. 52 ; 16 Jur. 65 83
Owen V. Bowen, 4 C. & P. 93 25
Palmer r. Wick Steam Co., [1894] A. C. 318 60
Parker r. Ibbotson, 27 L. J. C. P. 236; 4 C. B. (x.s.) 346
4 Jur. (N.s.)536 1S» 23
XXll TABLE OF CASES.
PAGE
Parsons r. London County Council, 9 T. L. R. G 19 .. ... 39
Patten v. Rea, 26 L. J. C. P. 235; 2 C. B. (.v.s.) 600;
3 Jur. (x.s.)892 86
Patten c. Wood, 51 J. P. 5i9 172
Patterson r. Wallace, 1 Maccj. 748; 1 Paters. 389 68
Pattison ?•. Jones, 8 B. & C. 578 ; 3 M. & Ry. 101 ... 136, 139
Peachey r. Rowland, 22 L. J. C. P. 81 ; 13 C. B. 182 ; 17 Jur. 764 a
Peacock r. Peacock, 2 Camp. 45 ... ... ... ... ... 24
Pearce !-. Rogers, 3 Esp. 214 108,112
Pearse v. Foster, 17 Q. B. D. 536 ; 55 L. J. Q. B. 306... 39, 41
Penn r. Ward, 2 C. M. & R. 338 170
Perkins r. Smith, Sayer, 40 119
Perring r. Harris, 2 Mo. & Rob. 5 120
Pe^re/, T^e, 62 L. J. P. C. 92 ; P. 230 77
Phillips V. Clift, 28 L. J. Ex. 153 ; 4 H. & N. 168 ; 5 Jur.
(N.s.)74 162, 166
Phillips r. Turner, 4 CI. & F. 234 173
Pickard v. Smith, 4L. T. (n.s.) 470 ; 10 C. B. (x.s.) 470 ... 84
Pilkington v. Scott, 15 M. & W. 637 ; 15 L. J. Ex. 329 ... 19
Planche v. Colburn, 8 Bing. 14 ... ... ... ... ... 27
Playford *'. United Kingdom Elect. Co., 4 Q. B. 706 ; 38 L. J.
Q. B. 249 98
Poplett r. Stockdale, 2 C. & P. 198 29
Potter r. Falkner, 31 L. J. Q. B. 30 ; 1 B. & S. 800 78
Pottle V. Sharp, 65 L. J. Ch. 908 ; 75 L. T. 265 35
Potts r. Plunkett, 33 L. T. Ill 70
Poulton V. L. & S. W. R. Co., 36 L. J. Q. B. 294 ; 2 Q. B. 534;
17 L. T. 11; SB. &S. 616 88,92
Poussard v. Spiers & Pond, 1 Q. B. I). 414 ; 45 L. J. Q. B. 621 ;
34 L. T. 572 ; 24 W. R. 819 44
Powis, Ex parte, Re Brown, 43 L. J. Bk. 24 ; 29 L. T. 654 ;
17Eq. 130; 22 W. R. 218 34
Powles V. Hider, 25 L. J. Q. B., 331 ; 6 E. & B. 207 5
Precious v. Abel, 1 Esp. 350 104
Price V. Mouatt, 11 C. B. (x.s.) 508 36, 48
Priestley v. Fowler, 3 M. & W. 1 ; 1 Jur. 987 66, 72
Pritchard ?'. Hitchcock, 6 M. & G. 165 51
Puttock r. Warr, 31 L. T. 86 110
Quarman v. Burnett, 6 M. & W. 499 ; 9 L. J. Ex. 308 ; 4
Jur. 969 3, 98
TABLE OF CASES. XXI 1
Raphael r. Goodman, 8 A. & K. 565
Rapson r. Cuhitt, 9 M. & W. 760
Redhead r. Midhmd Rail. Co., 38 L. J. Q. B. 169
Read v. Dun.sinore, 9 C. & P. 594
Reddie v. Scott, 1 Peake, 316
Redgate r. Haynes, 1 Q. B. D. 89; 45 L. J. iM. C.
SSL. T. 779; 41 J. P. 86
Reed r. Moore, 5 C. & P. -200
Reedie v. London and North Western Rail. Co. , 4 Ex. i
20 L. J. Ex. 65
Reid V. Explosives Co., 19 Q. B. D. 264
Rejnmrd r. Chase, 1 Burr. Rep. 2
Richards r. London, Brighton, and South Coast Rail.
7C. B. 839
Richards v. West Middlesex Water Co. , 15 Q. B. 1). 660. . .
Richardson r. Cartwright, 1 C. & K. 328
Ridgeway v. Hungerford, 3 A. & E. 171 ...
Riley r. kaxendalc, 30 L. J. Ex. 87
Rist V. Faux, 32 L. J. Q. B. 386 ; 4 B. & S. 409 ; 8 L. T.
10 Jur. (N.s.) 202 ; 11 W. R. 918
Rimell r. Sampays, 1 C. & P. 254
R. r. Almon, 5 Burr. 2686
R. V. Amersham, 4 A. & E. 508 ; 6 X. & M. 12
R. r. Arkwright, 1 Web. P. C. 71
R. r. Arnesby, 3 B. & Aid. 584
R. r. Austrey, Burr. S. C. 441
R. V. Baildon, 3 B. & Ad. 427
R. r. Bardwell, 2 B. & C. 161
R. r. Bass, 1 Leach, 251
R. V. Batty, 2 Moo. C. C. 257
R. r. Baxter, 5 Cox C. C. 302
R. r. Bazeley, 2 East P. C. 571 ; 2 Leach, 835
R. r. Beachey, R. & R. 319
R. r. Bleasdale, 2 C. & K. 756
R. /•. Bowers, 35 L. J. M. C. 206 ; 14 L. T. 671 ; 1 C. C. R
12 Jur. (N.s.) 550
R. r. Brampton, Cald. 11 ...
R. r. Bull, 2 Leach, 841
R. r. Burton, 32 L. J. M. C. 102
R. r. Carr, R. & R. 198
R. r. Chalbery, 1 Bott. 706
R. r. Charles, 2 Bott. 565
PAGE
87
83
89
38
65
65
D t 1
115
10
i44
2
, 83
34
153
Co.
89
88,
92
:, 95
106
26,
41
, 42
68
737
64
104
113
160
49
li
51,
159
178
160
7
125
9
129
126,
127
129
113
. 41
4
38
126
160
129,
130
160
ito
XXIV
TABLE OF CASES.
R. 295 ;
R. V. Cheshunl, 1 B. & Aid. 47.3
R. V. Cirencester, 1 Stra. 579
R. V. Cooke, 40 L. J. M. C. 68 ; 24 L. T. 108 ; 1 C. C
12Cox, 10
R. V. Cromford, 8 East, 24
R. V. Daniel, 6 Mod. 182
R. V. Dixon, 3 M. & S. 11 ; 4 Camp. 12
R. V. Dodderhill, .3 M. & S. 243 ...
R. V. Edwards, 7 T. R. 745
R. V. Everard, 1 Bott. 638
R. V. Friend, Russ. & Ry. 22
R. V. Goodbody, 8 C. & P. 665 ...
R. (;. Gorbutt, 26 L. J. M. C. 49 ; 7 Cox, 221 ; 3 Jur. (n.s.)371;
D. &B. 169
R. t'. Gould, 1 Salk. 380
R. V. Gray, 1 Stra. 485
R. V. Great Northern Rail. Co., 9 Q. B. 315
R. V. Gutch, Moo. & Mai. 433
R. V. Hall, 3 Stark. 67
R. V. Hammon, 4 Taunt. 304
R. V. Harburton, 1 T. R. 139
R. r. Harding, Russ. & Ry. 125 ...
R. V. Harris, 69 L. T. 25 ; 57 J. P. 729 ...
R. V. Hawtin, 7 C. & P. 281
R. V. Higgins, 2 East, 5
R. V. Higgins, 2 Stra. 882 ; 2 Ld. Raym. 1574
R. V. Hinckley, 32 L. J. M. C. 158 ' ...
R. V. Hindringham, 6 T. R. 557 ...
R. V. Holbrook, 4 Q. B. 42 : 48 L. J. Q. B. 11 ; 39 L
27W. R. 313
R. V. Huntley, 3 C. & K. 142
R. V. Ightman, 4 A. & E. 937 ; 6 N. & M. 320
R. V. Johnson, 3 M. & S. 548
R. V. Laindon, 8 T. R. 379
R. V. Leach, 3 Stark. 70
R. V. Leggett, 8 C. & P. 191
R. V. Longnor, 4 B. & Ad. 647
R. V. Lord, 17 L. J. M. C. 181 ; 12
R. V. Lyth, 5T. R. 327
R. V. Macdonald, 31 L. J. M. C.
(N.s.) 1127; low. R. 21
R. V. Medley, 6 C. et P. 292
R. V. Mellish, R. & R. C. C. 80 ..
R. r. Miller, 4 Cox, 166
Q. B. 757 ; 1
T.
L.
Jur
330
PAGE
71
160
T. 536
160
169
115
17
170
160
52
128
176
123
116
114
130
125
165
126
130
129
131
113
165
162
... 114
... 50
152, 159
... 128
152, 159
11, 130
... 50
... 159
1001 ...9,163
... 17
Jur.
6
116
129
129
TABLE OF CASES. XXV
PAGE
R. V. Minster, 3 M. & S. 276 8
R. V. Moah, 27 L.J. M.C. 204 ; 1 D. & B. 550; 4 Jur. (n.s.) 464... 146
R. V. Morfit, R. & R. C. C. 307 126
R. u. Murphy, 4 Cox, 101 129
R. r. Murray, 1 Leach, 344 125
R. V. Murray, 5 C. & P. 146 n. ; 1 Moo. C. C. 270 ... 126, 130
K V. Negus, 42 L. J. M. C. 02 ; 2 C. C. R. 34 ; 28 L. T. 040 ;
21 W. R. 687 1.4
R. (?. Northorani, 2 Stra. 1132 101
R. ('. Northwiuglield, 1 B. & Ad. 912 29
R. r. Parr, 2 Moo. & R. 346 H-'^
R. V. Peck, 1 Salk. 65 107
R. V. Pendleton, 1 5 East, 449 17
R. v. PolesAvorth, 2 B. & Aid. 483 ^7
R. i;. Ponsonby, L. R. 3 Q. B. 14 »
R. V. Rainham, 1 East, 531 152, 159, 101
R. V. Raschcn, 38 L. T. 38 ; 42 J. P. 264 44
R. n Reynolds, 0 T. R. 497 169
R. i'. Ridley, 2 Camp. 050 52
R. r. Ripen, 9 East, 295 159
R. r. Robinson, 2 East P. C. 565 124
R. V. Rolvenden, 1 M. & Ry. 689 18
R. V. St. Luke's, 1 Bott. 710 105
R. ?'. St. Martin's, 8 B. & C. 074 18
R. V. St. Martin's, Exeter, 2 A. & E. 655 158
R. V. St. Nicholas, Burr. S. C. 91 170
R. v. St. Petrox, 4 T. R. 196 157
R. V. Saltern, 1 Bott. 613 157
R. V. Sharman, 22 L. J. M. C. 51 ; 6 Cox, 212 ; 18 Jur. 157 ... 146
R. V. Sloane et Ux, 33 Sess. Pap. (C. C. C.) 482 53
R. V. C. J. Smith, 34 L. J. M. C. 155 ; 10 Cox C. C. 82 ... 53
R. t'. Smith, R. & R. 267 129
R. V. Snowley, 4 C. & P. 390 129
R. V. Spears, 2 East P. C. 56 ; 2 Leach, 826 125
R. V. Spencer, R. & R. 299 129
R. r. Spreyton, 3 B. & Ad. 818 178
R. V. Spurrcll, 35 L. J. M. C. 72 ; 13 L. T. 304 ; 1 Q. B. 72 ;
14W. R. 81 ; 12 Jur. (N'.s.)208 7
R. V. Stephen, 1 Q. B. 702 ; 35 L. J. M. C. 251 ; 14 L. T. 593 ;
7 B. & S. 710 ; 14 W. R. 859 117
R. V. Sullens, 1 Moo. C. C. 129 126
R. V. Tardcbigg, Sayer, 100 109
R. V. Thorpe, 27 L. J. M. C. 264; 8 Cox, 267; 18 Jur.
(N.s.)460; 1). &B. 02 128
XXVI
TABLE OF CASES.
R. r. Tyrie, 38 L. J. M. C. oS ; 19 L. T. (mT ; ICC
17 W. R. 334; 11 Cox, 24
R. r. Walker, L. R. 2 C. C. 37 ; 42 L. J. M. C. 62
R. V. Wallings, 1 C. & P. 457
R. ('. Walter, 3 Esp. 21
R. V. Warren, R. & R. C. C. R. 482
R. /'. Welford, Cald. 57
R. v. Wigston, 3 B. & C. 484 ; 5 I). & R. 339 ...
R. V. Williams, 1 C. & K. 589
R. r. Worfield, 5 T. R. 506
R. V. Wortley, 21 L. J. M. C. 44 ; 15 Jur. 1137 ; 2 Den.
R. V. Wotton, 1 Bott. 712
R. V. Wright, 27 L. J. M. C. 65 ; 7 Cox, 413 ; J). &
4 Jur. (N.s.) 313
Robb V. Green, [1895] 2 Q. B. 315 ; 64 L. J. Q. B.
J. P. 695
Roberts ;;. Smith, 26 L. J. Ex. 319 ; 32 L. T. 320
Robertson v. Jenner, 15 L. T. 564
Robinson v. Hindman, 3 Esp. 235...
Roe t'. Birkenhead Rail. Co. 21 L. J. Ex. 9 ; 7 Ex. 36
Rogers v. Clifton, 3 B. & C. 587
Ross V. Parkyns, 44 L. J. Ch. 610 ; 30 L. T. 331 ; 20
24W. R. 5
Rourke v. White ISIoss, 46 L. J. C. P. 283 ; 2 C.
36 L. T. 49; 25 W. R. 263
Royce r. Charlton, 8 Q. B. D. 1 ; 45 L. T. 712 ; 46 J
30W. R. 274
Ruddiman r. Smith, 53 J. P. 528 ; 60 L. T. 708
Rusby V. Scarlett, 5 p]sp. 76
Russell's Patent, Re, 30 L. T. 178 ; 2 De ii. & J. 130
R\'an i\ Jenkinson, 25 L. J. Q. B. 11
PACE
R. 177;
130
1
130
60, 114
56
26, 38
165
113
15,27
C. 333... 22
165
B. 431 ;
124
593; 59
21
69
18
16, 27, 37, 49
96
136, 139, 141
Fai. 331 ;
6
P. 205;
... 97
P. 197 ;
162, 172
... 92
101, 103
... 49
... 35
S.
St. Mary r. Radclitlb, 1 Stra. 59
St. Nicholas v. St. Botolph, 31 L. J. M. C. 258...
St. Nicholas r. St. Peter, 2 Bott. 493 ; Burr. S. C. 91
Sadler v. Henlock, 24 L. J. Q. B. 138 ; 4 E. & B. 570
(N.s.) 677
Salop, Countess of r. Crompton, Cro. Eli/.. 777...
Sammell v. Wright, 5 Esp. 263
Sanderson r. Bell, 2 Cr. & M. 304
Sandby, Ex parte, 1 Atk. 140
1 Jul
160
159
160
3
51
98
110
16S
TABLE OF CASES. XXVll
PAGE
Sands r. Child, 3 Levinz, 3ry2 11»
Savage i'. Waltham, 11 Mod. 135 51
Saxton r. Hawkesworth, 26 L. T. 851 69
Scai-man v. Castcll, 1 Esp. 270 "^'-i
Schumann, Ex parte, Re Foster & Co., 19 L. R. Ir. 241 ... 34
Seaman v. Bigg, Cro. Car. 480 1-45
Searle r. Lindsay, 31 L. J. C. P. 106; 11 C. B. (n.s.) 429;
5 L. T. 427 ; 8 Jur. (n.s.) 746; 10 W. R. 69 77
Searle r. Ridley, 28 L. T. 411 40
Sellen r. Norman, 4 C. & P. 80 27,28,58
Senior v. Ward, 28 L. J. Q. B. 139 ; 1 E. & E. 385 ; 7 Jur.
(N.s.) 172; 7 VV. R. 261 70,71
Seymour r. Maddox, 20 L. J. Q. B. 326 ; 16 Q. B. 326 ;
15 Jur. 72 68
Sharrod r. L. & N. W. Rail. Co., 4 Ex. 580 2,96
Shawr. Chairritie, 3 C. & K. 21 39, 50
Shepherd r. Conquest, 25 L. J. C. P. 127 ; 17 C. B. 427 ... 50
Simmons c. Willmott, 3 Esp. 91 54
Sims r. Kinder, 1 C. & P. 279 134
Skipp V. East. Co. Rail. Co., 23 L. J. Ex. 23 ; 9 Ex. 223 ... 69
Sleath r. Wilson, 9 C. & P. 612 86
Smart r. West Ham, 25 L. J. Ex. 210 ; 11 Ex. 867 13
Smith *■. Armoures, Peake's Cases, 148 153
Smith i". Baker, [1891] App. Cas. 325 70
Smith V. Cartwright, 6 Ex. 927 ; 20 L. J. Ex. 401 12
Smith V. Hull Glass Co., 11 C. B. 897; 21 L. J. C. P. 106;
16 Jur. 595 106
Smith c. Francis, 55 J. P. 407 171
Smith r. Lawrence, 2 M. & R. 1 98
Smith V. Neale, 26 L. J. C. P. 143 ; 2 C. B. (n.s.) 67 ; 3 Jur.
(N.s.) 516 14
Smith V. N. Met. Tram. Co., 55 J. P. 630 ; 7 T. L. R. 459 ... 87
Smith r. Seghill, 44 L. J. M. C. 114; 32 L. T. 8.59; 10
Q. B. 422 ; 23 W. R. 715 8
Smout r. nbury, 10 M. & W. 1 ; 12 L. J. Ex. 357 121
Snowdon ?•. Dairs, 1 Taunt. 359 122
Somerset v. Hart, 12 Q. B. 1). 360; 53 L. J. M. C. 77;
48J.P. 32 115
Somerville v. Hawkins, 20 L. J. C. P. 133 ; 10 C. B. 583 ;
15 Jur. 450 135
Southern c. How, Cro. Jac. 471 ... ... ■•■ ••• ■•. ^~
Spain 1-. Arnott, 2 Stark. 256 17,26,-36,47
Speck r. Phillips, 5 M. & W. 279 38
Spencer r. Scheerman, 23 L. T. 873 ... ... ... ... 22
XXVlll TABLE OF CASES.
PAGE
Spotswoode V. Barrow, 5 Ex. 110 ; 19 L. J. Ex. 226 ... 39, 43
" Star" Ncw.spaper v. O'Connor, 9 T. L. R. 526 21
Staveley ?;. Uzziclli, 1 F. & F. 284 112
Stephens V. Badcock, 3 B. & Ad. 354 121
Stephens r. Elwall, 4 M. & S. 259 119
Stevens v. Woodward, 6 Q. B. D. 318 ; 50 L. J. Q. B. 231 ; 44
L. T. 153 ; 45 J. P. 603 ; 29 W. R. 506 92
Stiffr. Cassell, SJur. (N.s.)348 18
Stock V. Harris, 5 Burr. 2709 120
Stocker v. Brocklebank, 20 L. J. Ch. 401 ; 15 Jur. 591 ; 3
Mac. &G. 250 6
Stone V. Cartwright, 6 T. R. 441 82
Storey v. Ashton, 4 Q. B. 476 ; 38 L. J. Q. B. 223 ; 10 B. &
S. 337 ; 17 W. R. 727 87,92
Strode V. Dyson, 1 Smith, 400 106
Stubbing i\ Hertz, 1 Peake, 66 108
Sturm V. Hinshelwood, 55 J. P. 341 ... ... ... ... 93
Summers v. Solomon, 7 E. & B. 879 ; 26 L. J. Q. B. 301 ;
3 Jur. (x.s.)963 103,111
Swainson v. N. E. R. Co., 3 Ex. D. 341 ; 47 L. J. Q. B. 372;
38 L. T. 201 ; 26 W. R. 413 76
T.
Tarrant r. Webb, 25 L. J. C. P. 261 ; 18 C. B. 797 68, 69
Tarry v. Ashton, 1 Q. B. D. 314; 45 L. J. Q. B. 260; 34
L. T. 97 ; 24 W. R. 581 84
Tasker v. Shepherd, 30 L. J. Ex. 207 ; 6 H. & N. 575 ... 34
Taylor ?;. Brewer, 1 M. & S. 290 24
Taylor v. Caldwell, 32 L. J. Q. B. 64 ; 3 B. & S. 826 167
Taylor v. Hawkins, 20 L. J, Q. B. 313; 16 Q. B. 308;
15 Jur. 746 135
Taylor v. Rowan, 1 M. & Rob. 490 ; 7 C. & P. 70 145
Temperton r. Russell, [1893] 1 Q. B. 715 ; 62 L. J. Q. B. 412 22
Terry v. Hutchinson, L. R. 3 Q. B. 599 ; 37 L. J. Q. B. 257 ;
18 L. T. 521 ; 9 B. & S. 487 ; 16 W. R. 932 64
Thomas V. Quartermaine, 18 Q. B. D. 685 70
Thomas v. Rliymney Rail. Co., L. R. 6 Q. B. 266 ; 40 L. J.
Q. B. 89 ; 24 L. T. 145 ; 19 W. R. 477 90
Thomas i;. Williams, 1 A. & E. 685 33
Thompson r. Davenport, 9 B. & C. 90 109
Thorold r. Smith, 11 Mod. 87 Ill
ThrusseU v. Handyside, 20 Q. B. D. 359 71
TABLE OF CASES. XXIX
PAGE
Tickell i-. Read, Lofft. 215 G3
Tite's case, 30 L. J. M. C. 142 ; 4 L. T. 2r)9 ; L. & C. 29 ;
8 Cox, 458; 9 W. R. 554 ; 7 Jur. (N.s.) 556 9
Tobin r. Crawford, 9 M. & W. 718 103
Todd V. Kerrick, 22 L. J. Ex. 1 ; 8 Ex. 151 ; 17 Jur. 119 2, 16, 35
Toogood r. Spyring, 1 C. M. & R. 193 ; 3 L. J. Ex. 347 ... 142
Toplis I'. Grane, 5 Bing. N. C. 6.36 59
Totterdell v. Fareham, 35 L. J. C. P. 278 106
Touch V. Strawbridge, 2 C. B. 803 ; 15 L. .J. C. P. 170 ... 15
Tuff r. Warman, 27 L. J. C. P. 322 95
Turbe\'ille v. Stamp, 1 Salk. 13 ; Ld. Raym. 264 ; 1 Coniyn's
Rep. 32 81,116
Turner v. Mason, 14 M. & W. 112 ; 14 L. J. (n.s.) Ex. 311 ;
2D. &L. 898 36,37,46,49
Turner r. Robinson, 5 B. & Ad. 789; 2 N. & M. 829 ... 26, 40
U.
Union Steamship Co. r. Claridge, 63 L. J. P. C. 56 3
V.
Velasquez, The, SQL. J. Ad. \9 96
Venables v. Smith, 46 L. J. Q. B. 470 ; 2 Q. B. D. 279 ; 36
L. T. 509 ; 25 W. R. 584 5
Verrey f. Watkins, 7 C. & P. 308 65
Vicars i'. Wilcock, 8 East, 1 ; 2 Sm. L. C. 487 144, 145
Vose V. Lancashire Rail. Co., 27 L. J. Ex. 249; 4 Jur.
(N.s.)364 ; 2H. &N. 728 76
W.
Wagstaff r. Wilson, 4 B. & Ad. 339 110
Walker v. G. W. R. Co., 36 L. J. Ex. 123 ; L. R. 2 Exc. 228 109
Walker v. British Guar. Ass. 18 Q. B. 277 ; 21 L. J. Q. B. 257 42
Walsh V. Walley, 43 L. J. Q. B. 102 ; L. R. 9 Q. B. 267 ; 38
J. P. 470 ; 22 W. R. 571 35
Walter !'. Everard, [1891] 2 Q. B. 369 163
Wanstall V. Pooley, 6 CI. & M. 910 n 87
Warbm-ton v. G. W. R. Co., 36 L. J. Ex. 9 ; 15 L. T. 361 ;
L. R. 2 Ex. 30 ; 15 W. R. 108 76
Ward i: Byrne, 5 :SI. & W. 548 ; 3 Jur. 1175 30
XXX TABLE OF CASES.
PAGE
Ward V. Evans, 2 Salk. 442 ; 6 Mod. 36 ; 2 Ld. Kaym. 928... 110, 111
Ward V. L. G. Om. Co., 42 L. J. C. P. 265 ; 28 L.^T. 850 ... 86
Waters r. Brogden, 1 Y. & J. 457 Ill
Watkins r. Vince, 2 Stark. 368 107
Watling r. Walters, 1 C. & P. 132 54
Watson V. Turner, Bull. N. P. 147 55
Wayland's(Sir-Rob.)case, 3.Salk. 234 103
Weathcrstone r. Hawkins, 1 T. R. 110 134
Webb r. England, 30 L. J. Cli. 222 ; 3 L. T. 574 ; 7 Jur.
(x.s.) 153 ; 29 Bcav. 44 173
Welch V. L. & N. W. R. Co., 34 W. R. 166 90, 93
Wennall v. Adney, 3 B. & P. 247 56
Westlake r. Adams, 27 L. J. C. P. 27; 5 C. P. (n.s.)248;
4. Jur. (N.s.) 1021 161
Wcstwick V. Theodore, 10 Q. B. 224 ; 44 L. J. Q. B. 120 ;
32 L. T. 696 ; 23 W. R. 620 166
Wliatman r. Pearson, L. R. 3 C. P. 422 86
Wliincup r. Hughes, 6 C.P. 78 ; 40 L. J.C.P. 104 ; 24 L.T. 79 ;
9W. R. 830 167
White V. Bailey, 30 L. J. C. P. 253 ; 10 C. B. (x.s.) 227 ; 7 Jur.
(N.s.) 948 7
Whitelev r. Pepper, 46 L. J. Q. B. 436 ; 2 Q. B. 1). 27() ; 36
L. T. 588 ; 25 W. R. 607 81
Whitfield i\ Lc Dcspenser, Cowp. 754 97
Wiiitley r. Loftus, 8 Mod. 190 157
Whitwood r. Hardnian, [18911 2 Ch. 416 ; 60 L. J. Ch. 428 ... 21
Wiggett r. Fox, 11 Ex. 832 ; 25 L. J. Ex. 188; 2 Jur. (n.s.) 955 74
Wigmore r. Jay, 19 L. J. Ex. 300 ; 5 Ex. 354; 14 Jur. 837 ... 73
Wilkin r. Reed, 15 C. B. 192 ; 23 L. J. C. P. 193 ; 18 Jur. 1081 146
Wilkins r. Wells, 2 C. & P. 231 23
Willett r. Green, 3 C. & K. 59 43
Williams V. Byrne, 7 A. & E. 177 ; 2 N. & P. 139 ; 1 Jur. 578 ...16, 35
Williams v. Clough, 27 L. J. Ex. 825 ; 3 H. & N. 258 68
Williams r. Stott, 1 Cr. & M. 685 ; 3 Tyr. 688 129, 130
Williamson r. Taylor, 5 Q. B. 175 ; 13 L. J. Q. B. 81 ... 19
Wilmott y. Smith, Mood. & Mah 238 107
Wilson r. Barker, 4 B. & Ad. 616 100
Wilson V. Merry, L. R. 1 So. App. 326 ; 2 Paters. 1.597 67, 77
Wilson r. Rankin, 34 L. J. Q. B. 62 88,95
Wilson r. Tummon, 6 Sc. N. R. 904 ; 6 M. & G. 226 ; 12 L. J.
C. P. 307; 1 I), fc L. 513 100, 112
Wilson V. W. Hartlepool, 34 L. J. Ch. 241 : 11 L. T. (n.s.) .327 110
Wilson r. Zuluetta, 14 Q. B. 405; 19 L. J. Q. B. 49; 14
Jur. 366 22
TABLE OF CASES.
XXXI
PAGE
IGl,
384
Wing ('. Mill, 1 B. & Aid. 104
Wingfield ;•. Packington, 2 C. & P. 599
Wiimell i: Adney, 3 B. & P. 247 ...
Winstone r. Linn, 1 B. & C. 460 50
Wood V. Fenwick, 10 M. & W. 195
Woodin r. Burford, 2 Cr. & M. 391 ; 4 Tyr. 2G4
Woodley r. Metropolitan Dist. Rail. Co. , 2 Ex. D.
L. J. Ex. 521
Woodhouse r. Shapley, 2 Atk. 535
Wiay I'. West, 15 L. T. (x.s.) 180 ; 30 J. P. 726
Wright V. Lond. Gen. Om. Co., 46 L. J. Q. B. 429; 2 Q. B. 271 100
Wright V. L. & N. W. R. Co., 1 Q. B. D. 252; 45 L. J.
Q. B. 570 ; 33 L. T. 830 78
Wright V. Mid. Rail. Co., 42 L. J. Ex. 89; 29 L. T. 430;
8 Ex. 137 ; 21 W. R. 460 90
106
28
166, 170
9
105
46
49,70
169
165
Y.
Yarmouth v. Prance, 19 Q. B. D. 647
Yelland r. Vincent, 47 J. P. 230
Young V. Leamington, 52 L. .J. Q. B. 713 ; 49 L. T. 1.
70
22
12
CORRIGENDA.
Page 5 («), for 60 nad 64.
Page 12 {a), for " Berridge" read Beveridge.
Page 15 (<), for " Ching " rtad Cherry.
Page 17 (0, for " 45 L. J." rtad 46 L. T.
Page 38 (c), /or " 8 C. & P. 80 " rtad 18 C. B. 718.
Page 38 {h),for " Spark " rtad Speck.
Page 62 (y),for " L. T." read T. L. R.
Page 63 (t),for " 11 B. & E." rtad 11 A. & E.
/or " 1884 " /-cacZ 1834.
Page 68 {m)for " 38 L. J. Q. B.'' reatZ 33 L. J. Q. B.
Page 84 (/), for " 53 " rtad 23.
Page 84 (i), for " 64 rearf 14.
/or "6C. B."rearflC. B.
Page 85 {k),for " 1 C. & P." rtad 5 C. & P.
87 (2), /or " B. & E." read A. & E.
97 (h),for " 1858 " read 1558.
103 (2), /or " Stark." recwZ Stra.
/or "C. &K. " reatZC. & P.
Page 136, 10 lines from bottom of page, for " therein " read those.
CHAPTER I.
The Parties to the Contract.
It is difficult to define the relationship of master and
servant so as to include all the numerous instances
of it recognized by the law. " The relation of master
and servant," says BlacTxstone (a), "is founded in con-
venience, whereby a man is directed to call in the
assistance of others where his own skill and labour
will not be sufficient to answer the cares incumbent
upon him." It must further be added, however, that
it is of the essence of the relationship that the master
not only has the right to say what his servant shall do,
but also the way in which the work is to be done (6).
"A sen^ant is a person subject to the command of his
master as to the manner in which he shall do his
work " (c).
Different kinds of servants. — A distinction has always
been made between servants intra moenia or domestics,
and such as are not employed in a menial capacity as
clerks, shopmen, and the like, though these are engaged
within the offices or shops of their employers. And
on the other hand, a servant may be menial, though he
does not reside within his master's house. A head
gardener, for example, hired at a yearly wage of 100?.,
with a house in his master's grounds, and who was
allowed to take apprentices at a premium, and had five
under-gardencrs to assist him, was held to be a menial
servant {d). In like manner, a huntsman, though hired
(a) Comm. I. 422.
(h) Rtq. V. Walktr (1858), 27 L. J. M. C. 207.
((■) Blackburn, J., iu Rtg. v. Ntgtis (1873), L. R. 2 C. C. 37;
42 L. J. M. C. 62.
{d) Xoir/an v. Ahlett (1835), 2 Cr. M. & R. 54.
M. & S. B
2 PABTIES TO THE CONTEACT.
at yearly wages (e). On the other hand, a governess (/)
at a yearly salary, and the housekeeper (g) of a large
hotel are not menial servants. A j^^ima donna giving
her exclusive service, and acting under directions, is to
be regarded as a servant (h) . The chamnan of a public
meeting is not in the relation of master to the stewards
or managers appointed for the purpose of keeping order.
In the com'se of his judgment in this case {i),
Amphlett, B., said : "In the case of master and servant,
the character and duties attaching to the employment
are known and defined beforehand. The servant who
is to perforin these is selected accordingly. In the
present case, no such relationship existed in the first
instance, nor did it arise during the transaction."
A third class of servant is distinguished, viz., those
engaged in husbandry and manufactures, and known as
labourers, ivorlanen, and artizans.
Lastly, there is a class of servants quite siii generis,
that of apprentices, w'hich will be separately treated of
hereafter (k).
Difficulties sometimes arise in distinguishing the
relationship of the servant to his master from others
more or less closely allied to it, as the relationship of
contractors, agents, and bailees to their employers.
Servant distinguished from contractor. — A contractor
is left by his employer to use his own judgment, and is
not directed by him as to details. An employer is
consequently not hable for the acts of the servant of a
contractor employed by him (/). A contractor was
employed to fill in the earth over a drain which was
(e) Nkoll V. Greaves (1864), 33 L. J. C. P. 259 ; 10 L. T. (n.s.) o31.
(/) Todd V. Ktrrich (1852), 22 L. J. Ex. 1.
(f7) Laiderv. Linden (1876), 10 Ir. Rep. C. L. 188.
(h) Liimhy v. Gi/e (1853), 22 L. J. Q. B. 463.
(i) Lnca-s v. Mason (1875), 44 L. J. Ex. 145.
{h) Vide Chapter XIV.
[1] Rmlerv. L.dX. W.Ii. (1849^ 4 Ex. 244 ; Cf.Sharrod v. L.d^X. W.R.
(1849), 4 Ex. 580.
SERVANT DISTINGUISHED PEOM CONTRACTOR. 3
being made across a highway. The contractor's
servants did the work so carelessly that a person
driving along the road sustained personal injury. It
was held that there was no evidence to go to the jury
of the employer's liability (m). Where, however, a
labourer was directly employed to cleanse a drain, the
employer was held liable for injury arising from the
negligent manner in which the labourer had done his
work (n) . A corporation is not the master of the servants
of a contractor who supplied horses and drivers for
their watering-carts (o). But the owner of a steamer
hired for a day remains the master of those employed,
and he, not the hirer, is responsible for injury happening
to passengers, although they pay their fares to the
hirer (p). And a jobmaster remains the master of a
driver he lets out with horses to di-aw a customer's
carriage, even where the same driver is habitually
employed, and is paid a daily fee and provided with
livery by the customer (q). A recent case illustrates
very well how, where contractors are employed,
difficulty may arise in fixing responsibility. Certain
stevedores contracted with the owners of a ship to
discharge her cargo. The lifting tackle was worked by
steam power — the ship boilers — and was attended to by
two of the crew, who were paid by the shipowners, one
of whom acted as winchman, the other as hatchman.
Through the negligence of the winchman, a servant of
the stevedores was injured. It was held that the winch-
man was still in the employment of the shipowners, and
not of the stevedores, and therefore the shipovniers, and
not the contractors, were liable (/•).
{m) Pearhey v. Bowland (1853), 22 L. J. C. P. 81.
(n) Sadler v. Henlock (1855), 24 L. .J. Q. B. 138.
(o) Jone.-i V. Liverpool Corporation (1SS5), 14 Q. B. D. 800.
ip) Dnlzell V. Tyrer (1858), 28 L. J. Q. B. 52.
{q) Quarman v. Burnett (1840), 6 M. & AN'. 409 ; 9 L. -T. Ex. 308.
(r) Union Steamship Co. v. Claridge (1894), 63 L. J. 1'. C. 56.
4 TAETIES TO THE CONTRACT.
The sen^ant of a foreman is the servant of the
foreman's employer (s).
Servant distinguished from agent. — " A principal has
the right to direct what the agent has to do, but a
master has not only that right, but also the right to say
how it is to be done" (t). A clerk to a wine merchant
authorized by his employer to sign delivery orders pe?'
pro, and who by so doing got possession of dock warrants,
on which he obtained an advance of money, was held
to be a servant, not an agent {u). A retail coal trader,
B., agreed to sell coals on commission for a firm of coal
merchants, to collect moneys due for the orders he
obtained, such moneys not to be kept longer than a
week after receiving the same, and the conmiission not
to be due until the money was received by the employer ;
but he was not to be held responsible for bad debts, and
the agreement to be terminable at a month's notice.
The court decided that B. was only an agent, not a
clerk or servant. Erie, C.J., in delivering judgment,
said : " If a man be entrusted to get orders and to
receive money, getting the orders when and where
he chooses, and getting the money when and where he
chooses, he is not a clerk or servant " (x). And a person
exclusively engaged by his employer to obtain orders on
commission, though free to apply for orders when most
convenient to himself, was held to be an agent, and not
a servant. (//).
A person selling wine on commission is an agent, not
a servant (z).
A servant cannot, as a rule, delegate his authority to
another. Only in certain exceptional cases as, e.g., the
(.s) Ohljhhl V. FnrnesH, Withey <t- Co. (189.3), 9 T. L. R. 51.5.
(0 Bramwell, B., in Reij. v. Walker (18,38), 27 L. J. Q. B. 207.
(?«) LamJ) V. AUenlioroui/h (18G2), 31 L. J. Q. B 41
(x) Rt<j. V. Bowtr.-i (18(i(i), ?,-, L. .1. M. C. 20G.
(y) Beg. v. lYer/iw (1873), 42 L. ,T. W. C. 02.
(z) Motion V. Michaud (1892), 8 T. L. R. 253, 447.
SEEVANT DISTINGUISHED FROM BAILEE. 5
master of ship, can the servant become the agent by
necessity of his master (a).
A district delegate appointed by the members of a
trade union to confer with and advise them in disputes,
is neither the servant nor the agent of the union (h) .
Servant distinguished from bailee. — A foreman who
obtaining fraudulently from the cashier more than was
suhicient to pay the men under him their proper wages,
appropriated the balance, is a servant, not a bailee (c).
But a drover employed to sell an animal at market,
and bring back the money received for it, is not a
servant, but a bailee (d). Although a cabdriver who
hires a horse and cab at so much a day, and keeps all
he earns, would otherwise be regarded as a bailee (e) , he
is under the provisions of the Hackney Carriage Acts (/) ,
the servant of the cab proprietor. Jjovd Camjjbell, C.J.,
in Powles v. Hider (g) said: " The Hackney Carriage Acts
always regard the proprietor and driver of the hackney
cab as employer and employed, or as master and servant,
and clearly contemplate that the party who engages the
cab under the care of the driver shall have a remedy
against the proprietor." Where a cab proprietor let out
only the cab at so much a week, and the driver provided
his own horse and harness, the relationship was held to
be that of bailor and bailee (h). In this case, both
Grove and Boiven, JJ., dissented from the sweeping
interpretation of the Hackney Carriage Acts by Lord
Camjpbell in Powles v, Hider. It is submitted that the
(a) Groilliam v. Twist, [1895] 2 Q. B. 84 ; 60 L. J. Q. B. 474.
(/)) Flood V. Jackson, [1895] 2 Q. B. 21 ; 64 L. J. Q. B. 665.
(c) Req. V. Cooke (1871), 40 L. J. M. C. 68.
(d) Re'i. V. (ioodbody (1838), 8 C. & P. 665.
(e) Fowkr v. Locke (1872), 41 L. J. C. P. 99; 4.3 L. ,J. C. P. 394 ;
Cf. CocKBURX, C.J., in Venahlcs v. Smith, ride itij'm.
(/) 1 & 2 Will. 4, c. 22, and 6 & 7 Vict. c. 86.
((/) Poirles V. Hider (1856), 25 L. J. Q. B. 331 ; Venables v. Smith
<18'77), 46 L. J. Q. B. 470.
(/i) KiiKj V. Spun- (1881), 51 L. J. Q. B. 105.
6 PARTIES TO THE CONTRACT*
Acts refeiTed to amount to this : that failing recovery
from the driver, action may be taken against the pro-
prietor. The owner is therefore ultimately responsible
for the acts of the driver, which is tantamount to the
relationship of master and serv^ant. The decisions in
Powlcs V. Hitler and Venahlcs v. Smith were followed
and fully endorsed in the more recent case of King v.
London Improved Cah Co. {i), where Lord Esher, M.E.,
approved what Cockhurn, C.J., had said in Venahles v.
iSmzY/i, and added : "Though between the driver and
the proprietor, the driver may not in fact be the servant of
the proprietor, yet as the proprietor selects the driver, the
latter, as regards the public, and for the protection of
the public, is to be deemed the servant of the proprietor."
Servant distinguished from partner. — The remunera-
tion of the servant of a person engaged in business by
a share of the profits does not of itself make the
servant a partner in the business (k). A manager of a
firm who received forty per cent, on the profits ij) ; a
tailor who obtained orders for another, and was paid by
a share of the profits as a conmaission {m) ; and a cashier
who received in addition to a fixed salary, a percentage
on the profits, but had no control over the management
of the business (n), were held to be servants, not
partners. The carrying on of an underwriting business
at a fixed salary and one-fifth of the profits, but also to
be liable to meet a share of unexpected claims, were
insufficient in the opinion of Jcsscl, M.R., to constitute
a partnership. "It is not a partnership at all, but a
contract of hiring and service " (o).
(i) King v. Loudon Improved Cah Co. (1889), 1:3 Q. B. D. 281.
{k) 53 & 54 Vict. c. 39, s. 1, ss. 3, 6,
(/) Stockerv. BrorUthunk (1851), 20 L. J. Ch. 401.
(m) Aiidreu-s v. Pwjh (1855), 24 L. J. Ch. 58.
(n) Jieg. V. Macdoiudd (1861), 31 L. J. M. C. G7 ; 5 L. T. 330.
(o) Bo'.s.i V. Purkyn.s (1875), 44 L. J. Ch. 610 ; 30 L. T. 331 ; see also
Ilarriwjtony. Churchward (1849), 29 L. J. Ch. 521; and lieg. v. Worthy
SEHVANT AS TENANT. 7
SerYant as tenant. — The occupation of a house as
apparent tenant {p), even when for the purpose of
carrjdng on business, does not necessarily alter the
relation of master and servant, nor make any difference
in the power of dismissal possessed by the former. A
farm-bailiff allowed to occupy a cottage as part pay-
ment for his wages, and to enable him properly to fulfil
his duties, is not a tenant, for he was held to be not a
substantial householder within 43 Eliz. c. 2, s. 1, and,
therefore, incapable of being appointed overseer of the
parish {q). A servant whose wages were less by 5/. per
annum because he occupied, rent free, a cottage
belonging to his master (r), a labourer who received 25.
a week less wages for a similar reason (s), a shepherd
whose remmieration was 7s. a week and a free cottage {t),
and a toll collector {u) living in the toll-house, and Is. a
week deducted from his wages in consequence, have all
been held not to be tenants. The following are all
further instances in which it was decided there was no
tenancy. A surgeon in Greenwich Hospital occupying
rooms in the hospital {x) . The manager of a beerhouse
who lived on the premises and agreed to leave the
business at a month's notice (y). A Wesleyan minister
living in the house taken by the stewards of the circuit
who did the repairs, although he pays the rates and
taxes and the rent, for he is in the position of a servant
of the circuit stewards (z) . A militia sergeant occupjang
(1851), 21 L. .J. M. C. 44 ; Per Lord Cajipbell, " Inter se, the prisoner
and his master were not partners. There was no community of profit
and loss."
{p) White V. Bailey (1861), 30 L. J. C. P. 253.
(q) Reg. v. Spurrell[\^m), 35 L. J. M. C. 72.
(r) Bertie v. Beaumont (1812), 16 East. 33.
(«) R. V. Gheshunt (1815), 1 B. & Aid. 473.
(t) R. V. BardireU (1823), 2 B. & C. 161.
00 Hunt V. Colson (1833), 3 Mo. & Sc. 790.
(.r) Dohson v. Jones (1844), 13 L. J. C. P. 126 ; 5 M. & G. 112.
{y) Mayliew v. iiuttle (1854), 24 L. J. Q. B. 54 ; 4 E. & B. 347.
{%) Clark V. Bury St. Edmunds (1856), 26 L. J. C. P. 12.
8 PAETIES TO THE CONTEACT.
a house rent free (a). On the other hand, the following
have all been held to be tenants. A collier living in a
house belonging to his employer, provided the occupation
is not connected with his service in the colliery (h).
The governor of a gaol who resides outside the prison (c).
The canon of a cathedral occupying a house with which
the chapter could not interfere, and which he himself
repaired (c?). A bailiff in the receipt of weekly wages
provided with a house and pasturage for two cows by
his master. The house and j)asturage w^re not
connected with his service, nor were they necessary for
the convenient performance of it (e). The occupiers of
Hampton Court provided they are rateable (/).
Who may be parties. — Generally, every person of
full agc! and siii juris may enter into a contract either
as master or as servant. There is one curious exception
to this rule, viz., the relation between a barrister and
his client. On this subject, the learned judgment of
Erie, C.J., in Kcnnedjj v. Brown et Ux (g) may be con-
sulted, in which he says : " The relation of counsel and
client renders the parties mutually incapable of making
any legal contract of hiring and service concerning
advocacy in litigation. For authority in support of this
proposition, we place reliance on the fact that in all tlie
records of our law, from the earliest time till now,
there is no trace whatever either that an advocate has
maintained a suit against his client for his fees in
litigation, or a client against an advocate for breach of
a contract to advocate."
A servant may have tico masters at the same time.
(a) Fox V. Dalhi/ (1874), 44 L. J. C. P. 42 ; L. R. 10 C. P. 285.
(h) Smith V. Serj/ii// (187.-)), 44 L. J. M. C. 114 ; 32 L. T. 859.
(r) Gamhkr v. Lydford (1854), 2.S L. J. AI. C. 69 ; 3 E. & 15. 340.
(d) Ford V. ITarrhxiton (1869), 39 L. J. C. P. 107 ; 21 L. T. 009.
(e) Kerj. V. Minstcr\\^U), 3 M. & S. 270.
(/) Rerj. V. Ponsonlnj (\M\), L. R. 3 Q. B. 14.
(ij) Kemmhj v. Brown et Ux- (1803), 32 L. J. C. P. 137.
INFANTS. — MARRIED WOMEN. U
For example, a clerk who sells goods for several persons
may be the servant of each of them (A), and a commercial
traveller who obtains orders, or is free to obtain orders
for several different firms, is the servant of each of them (i) .
The exceptions to the general rule just stated are
infants, married women and lunatics. These must
therefore be briefly considered, and a few words added
respecting partners and corporations.
Infants. — An infant may be either a master or a
servant, but the contract of hiring and service is void-
able by him unless it can be shown to be for his
benefit (k). A contract whereby an infant agreed to
enter into the service of his master for twelve months,
at certain weekly wages, to serve him at all times
during that term, and to work fifty-eight hours a week,
and containing a proviso that in case the steam engine
should be stopped from accident, or any other cause,
the master might retain all wages of the servant during
that time, was held wholly void (/). In view of the
decision in Coxhead v. Mullis (m), it would appear clear
that a contract of service entered into by an infant
would not be binding even if ratified after attaining
full age. The court in that case decided that a promise
of marriage came under section 2 of the Infants' Eelief
x4.ct, 1874 {n). Lord Coleridge, C.J., referring to this
section in concluding his judgment, said : — " I see
nothing to limit the words of the Act."
Married women. — At common law a married woman
cannot enter into a contract of hiring or service as
master or servant. By the Married Women's Property
Act, 1882 (o), repealing the previous Acts of 1870 and
(h) Reg. v. Batfy (1842), 2 Mood. C. C. 257.
{i) Tile's ca.se (1861), 30 L. J. M. C. 142; 4 L. T. 259.
{k) Wood V. Fenirirk (1842), 10 M. & W. 195.
(I) Beg. V. Lord (1848), 17 L. .J. M. C. 181; 12 Q. B. 757.
im) Coxhead v. 3fidlis (1878), 47 L. J. C. P. 761 ; 39 L. T. 349.
(») 37 & 38 Vict. c. 62. (o) 45 & 46 Vict. c. 75.
10 PARTIES TO THE CONTRACT.
1874 (/)), a married woman is presmnedly free to enter
into a contract either as master or servant indepen-
dently of her husband. Section 1, sub-section (2) of
this statute enacts that " A married woman shall be
capable of entering into and rendering 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 other-^ase, 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 by section 2 she is
" entitled to have and to hold as her separate property
. . . . any wages, earnings, money and property
gained or acquired by her in any employment, trade or
occupation in which she is engaged, or which she
carries on separately from her husband." Section 5
confers the same freedom on women married before the
Act as regards any wages or earnings accruing to them
after the Act came into operation. Notwithstanding
the words of the Act it is difdcult to see how the law
could permit a contract of service by the wife against
the wishes of the husband, which rendered cohabita-
tion impossible. How far the act of a wife, as for
example in hiring a servant, binds her husband, rests
now not on the bond of marriage but on the ordinary
relations of the parties, on the words or acts of the
husband, or the circumstance of their living together (r^^) .
Any presumption arising in favour of the liability of
the husband for such acts of his wife might equally
well arise in the care of a sister or housekeeper (r).
(p) 33 & 34 Vict. c. 93 ; 37 & 38 Vict. c. 50.
(g) Retd v. Moore, 5 C. & P. 200.
()•) Dthfnham v. Mrllon (1880), 5 Q. B. D. 304; 6 App. Cas. 24;
50 L. J. Q. B. 155. TiiKsicEK L.J. : " The liability of a husl)anfl for
debts incurred by his wife during cohabitation is based in the main upon
the ordinary principles of agency."
LUNATICS — PARTNERS. 11
If a female servant marry, the contract of sennce is
not dissolved, but she must serve out her time (s).
Lunatics. — A contract entered into by a lunatic is
binding unless it can be shown that the other party
was aware of the unsoundness of mind of the lunatic at
the time the contract was made. It seems clear there-
fore, that if a lunatic were to hire a servant who was
unaware of the unsoundness of mind of his master
there would be a valid contract of hiring and service.
Whatever may have been the old law on the subject
the above appears now clearly established by the cases
of Molton V. Camroux (t) and the Imperial Loan Co. v.
Stone («) . In the latter case the law was succinctly
stated by Lord Esher, M.E., as follows: — " AVhen a
person enters into a contract and afterwards alleges
that he was so insane at the time that he did not know
what he was doing, and proves the allegation, the
contract is as binding on him in every respect, whether
it is executory or executed, as if he had been sane w^hen
he made it, unless he can prove further that the person
with whom he contracted knew him to be so insane as
not to be capable of understanding what he was about."
Partners. — A partner has implied authority to hire a
servant on behalf of the firm (v) . A servant of a firm
of partners is the servant of each partner (x) . Where
a servant received directly contrary orders from two
partners it was held he might obey either (y) . All
partners are liable for injury to a servant caused by one
of them, if it occm's in a matter within the scope of the
common undertaking of the partnership (c). The
(s) Burn's Justice of the Peace, "Servants" 222 (30th ed.)
It) Molton Y. Camroux (1848), 18 L. J. Ex. 356 ; 4 Ex. 17.
(?t) Imperial Loan Co. v. Stone (1892), L. R. 1 Q. B. 599.
{v) Beckham v. Drake (1841), 9 M. & W. 79.
(a:) B. V. Leech (1821), 3 Stark. 70.
(y) Donaldson v. Williams (1853), 1 Cr. & M. 345.
(s) Ashworth v. Stamerix (1861), 30 L. J. Q. B. 183.
12 PARTIES TO THE CONTRACT.
general manager of a firm is not entitled to engage clerks
for long periods without the consent of the partners (a).
Corporations. — The general rule being that all con-
tracts of importance entered into by a corporation must
be under seal, but in trifling matters or those of urgent
necessity a parol agreement is sufficient, it follows that
all the higher class servants hired by a corporation
must be appointed under seal, but the hiring of an
inferior servant may be by parol {b) .
In the case of Trading Companies the appointment
of servants need not be under seal, when incidental to
the main business, for such contracts may be made by
parol. Contracts by companies are in fact on exactly
the same footing as those between private individuals (c).
A solicitor appointed by the articles of association of
a company (before incorporation) to be the sole legal
adviser to the company, failed in an action against the
company for employing other solicitors, it being held
that there was no contract on the part of the company
to emi^loy him as alleged (cZ) .
With regard to contracts made by Urban Authorities
the Public Health Act, 1875 (e), provides that "every
contract made by an authority whereof the value or
amount exceeds 50Z. shall be in writing and sealed with
the common seal of the authority "(/). The appoint-
ment of a medical officer by guardians must be under
seal ig) . A rate collector not appointed under seal was
(a) Berridfje v. Berridrje (1872), L. R. 2 Sc. Ap. 183.
(/>) Ludloic V. Charlton (1840), 6 M. & W. 815; Arnold v. Poole
(1842), 4 M. & G. 860 ; Smith v. Cartwriijht (18,>1), 6 Ex. 927 ; 20 L. J.
Ex. 401 ; Nicholson v. Bradjtdd Union (18GG), 35 L. J. Q. B. 176 ;
14 L. T. 8.30.
(r) R(i Contract Co. (1869), 8 Eq. 14. See Companies Act, 1867
(30&31 Vict. c. 131), s. 37.
{d) Elcy V. Podtive, etc. Co. (1876), 45 L. J. Ex. 58 ; 34 L. T. 141.
(e) 38 & .39 Vict. c. 55, s. 174, sub-s. (1).
If) Young v. Leamington Corporation (1882), 52 L. .J. Q. B. 713 ;
49 L. T. 1.
(y) Dijte V. .S";. Pancra-^ G uardiam (1863), 27 L. T. 342.
COEPORATIONS. 13
unable to recover against the guardians {h). The clerk
to the master of a workhouse has been held not to be
an inferior servant and his appointment not a matter
of necessity, and therefore his appointment by a board
of guardians ought to be under seal (i) .
The London Vestries are corporations under the
Metropolitan Management Act, 1855 (k), but the
vestries outside the metropolis are not.
(h) Smart v. WeM Ham Union (1856), 25 L. J. Ex. 210.
(i) Au.sfin V. Bethnal Green (1874), 43 L. J. C, P. 100 ; 29 L. T. 807.
(k) 18 & 19 Vict. c. 120, s. 42 and Sch. (A).
( 1^ )
CHAPTER II.
The Contract of Hibing and Service.
Wherever the relation of master and servant exists
there must be a contract expressed or implied between
them, that the latter should enter for pay or other valu-
able consideration into the service of the former, and
devote to him his personal skill and labour. This is
called the contract of hiring, and the rules respecting it
differ according to the capacity in which the servant
enters into the service of the master (I).
Contract in writing. — Statute of Frauds. — If the
contract of service is not to be completed within one
year it must, by the Statute of Frauds, be in
writing (??0. A groom and gardener was engaged
verbally on May 27th to enter into service on June 30th
following for one year. Although ready and willing to
enter upon his duties on that day the master refused to
take him into his service. It was held that no action
lay for breach of contract, that a full, effective, and
complete performance will alone satisfy the terms of
the statute (n). A writing on one side with acceptance
of it on the other is siifficient to satisfy the statute (o).
The Statute of Frauds does not, however, make a parol
agreement for more than a year void, but only renders
such contracts unenforceable (j)) . The agreement need
not be in one writing, but may be contained in several
separate documents if they clearly show that they refer
{I) Beeston v. Colhjer (1827), 4 Bing. 309.
(m) 29 Car. II. c. .3, s. 4.
(n) Rraecjjirdle v. ITeahl (1818), 1 B. & Aid. 722.
(o) Smil.h V. Neah (1857), 26 L. J. C. P. 143.
{p) Leroux v. Brown (1852), 22 L. J. C. P. 1.
GENERAL HIRING. 15
to each other (q). The rules of a workshop may form
part of the written contract between a workman and
his master (;•)• If the contract might be performed
within the year and there is no agreement to the
contrary it is not within the statute (s), nor if it is per-
formed by one party within the year (t) ; but a contract,
which according to its terms is prima facie not to be
performed within a year, is not the less within the
statute because it is made_ defeasible by a contingency
which may occur within that period (u) .
A verbal contract of service for more than a year by a
*' workman" was not enforceable unless service had
been entered upon {x) under the Master and Servant
Act, 1867, now repealed. Such a contract is, however,
now enforceable by the Employers and Workmen Act,
1875 (^).
General hiring. — If the terms of the contract are
general the hiring is for a year. That a general hiring
is a yearly one with domestic and menial servants has
not been disputed for a very long time {2) . And in all
other cases the same will be assumed in the absence of
circumstances combating it. In the case of menial or
domestic servants it is the rule, however, that Tvdth a
general hiring, either party may determine the service
at pleasure on giving a month's notice (a). And it has
been decided again and again that a servant may be
dismissed without notice on papnent of a month's
(q) Crane v. Powell (1868), 38 L. J. C. P. 43 ; 20 L. T. 703 ; Jones v.
Victoria Graving Dock Co. (1877), 46 L. J. Q. B. 219 ; 36 L. T. 347.
(r) Cams v. Ea-sticood (1875), 32 L. T. 855.
(s) Touch V. Sfrawbridcje (1846), 2 C. B. 803 ; 15 L. ,J. C. P. 170.
(t) Ching v. Htmming (1849), 4 Ex. 531 ; 19 L. .J. Ex. 63.
{u) Duvey v. Shannon (1879), 48 L. J. Ex. 459 ; 40 L. T. 628 ; Dohson
V, Collis (1856), 25 L. J. Ex. 267.
(a;) Banks v. Crossland (1874), 44 L. J. M. C. 8 ; 32 L. T. 226.
(y) 38 & 39 Vict. c. 90, s. 10.
[z) B. V. Worfiekl (1794), 5 T. R. 506.
(a) Cutter y/ Powell (1795), 6 T. R. 826; Fawcett v. Cash (1834),
5 B. & Ad. 904.
16 CONTRACT OF HIRING AND SERVICE.
wages from the day of dismissal (h). This power has,
indeed, been so often exercised by the master and
acquiesced in by the servant, that it is a matter of dail}'
occurrence. Objection has been made to it on the
ground that it works an injustice to the servant since
he is thereby deprived of a month's board and lodging.
But to this it may be answered that in cases where
there is good reason for the dismissal, which will
probably be in most of them, there would be manifest
injustice to the master were he obliged to maintain a
servant whose services he evidently does not consider
equal in value to his keep. On hiring a domestic or
menial servant, therefore, if it is intended that the
contract shall be only for one month, or some other
definite period, or that more or less than a month's
notice or wages shall be given or be sufficient, there
should be a clear understanding to that effect, and the
agreement made so that it is capable of proof in order
to rebut the presumption of its being a general hiring,
AVith regard to clerks, and other servants of a
superior class, although if the hiring is a general one it
will be assumed to be for a year, and so on until
determined by notice, yet it must be a notice expiring
at the cud of some current year ; the rule that a
month's notice or wages will be sufficient to determine
the hiring at any period of the year not applying to this
class of servants ; it has, however, never been clearly
decided what length of notice is required ; probably
three months would be requisite and sufficient (c).
Where the contract would otherwise be deemed a
yearly hiring, the mode of payment of the wages will
not vary the construction, nor affect its other inci-
dents {(■) . In any contract of hiring of a servant of this
(h) RoJiinson v. Hindmnn (1801), 3 K.s|>. 2.3.5.
(r) ]h<"<ton V. Collye.r (1827), 4 Bing. HO!) ; Williains v. Byrne (1857),
7 A. & E. 177 ; Todd v. Ktrrkh (1852), 8 E.\. 181 ; '^ L. J. Ex. 1 ;
For(jan v. liurkt (1801), 12 Ir. C. L. R. 495.
GEKEEAL HIEITTG, 17
description in which there are any conditions different
from those impHed in a general hiring, the agreement
should be made in writing or under such circumstances
that proof of the conditions may be forthcoming if
required.
With agricultural labourers a general hiring is a
hiring for a year, and such a servant dismissed with
good cause before the end of the year cannot recover
any wages for that year {d) . But where an agricultural
labourer was hired at so much a week with board and
lodging it was held to be a weekly hiring (e). If an
agricultural labourer serve for a year it is strong pre-
sumptive evidence that he served under a yearly
hiring (/). And after three years' service at even
weekly wages a yearly hiring has been presumed (g).
A hiring for clothes, meat and drink with no mention
of time is a yearly hiring (h) .
An engineer was engaged at a salary of 500/. a year.
He was dismissed at three months' notice. It was held
to be a yearly hiring, and he recovered his salary for the
part of the year unexpired. " The general rule of law
applicable," said Grove, J., "is that where the hiring
is a yearly one, it cannot be determined by either party
before the expiration of the year (/). The manager of
a shop who was paid his salary of 30/. a year monthly
was held to be hired for a year (k). In the case of a
manufacturer s agent, however, liired at a yearly salary,
the hiring was not a yearly one as there was a well-
proved custom that a month's notice was sufficient for
(d) Spain V. ^rH.o« [(1817), 2 Stark. 256; Lilley v. Ehciii (1S4S),
11 Q. B. 742 ; 17 L. J. Q. B. 132.
(e) R. V. DodderJiill (1814), 3M. & S. 243.
(/) R. V. Lyth (1793), 5 T. R. 327.
[g) R. V. Pendleton (1812), 15 East, 449.
(h) R. V. Worfield (1794), 5 T. R. 506.
(?) Buckingham v. Surreij Canal Go. (1882), 45 L. J, 885 ; 46 J. P. 774.
[k) Davis V. Marshall (1861), 4 L. T. (K.s.) 266.
M. & S. C
18 CONTRACT OF HIRING AND SERVICE.
dismissal (I). A commercial traveller entered into the
service of a firm of wine merchants on the agree-
ment that he should receive a yearly salary payable
quarterly, that it should be binding for twelve months,
and continue until three months' notice on either side
should determine it. It was decided that the employ-
ment might be determined at the end of the first year
by three months' notice {m) .
A foreman hired at 21. a week and a house to live in,
is hired by the week only (ji). Whilst an ostler's has
been held to be a weekly hiring (o) ; that of a hoots,
who had served for three years, is a yearly hiring (p).
An engagement of an author to write tales weekly in
a magazine for twelve months, for which he was to be
paid 10/. a month, was a yearly hiring (q).
With regard to editors there appears to be a generally
acknowledged custom, that the editor of a periodical
is hired by the year, but it was decided in Baxter v.
Nurse (r), that this does not apply to the editor of a new
publication. In that case Tindal, C.J. said, " It is not
a rule of law that a general hiring is for a year, but a
question for the jury, depending upon the facts of each
particular case." In an action by an editor, the year
before, for wrongful dismissal, the jury found, in face of
evidence going to show that editors, sub-editors, and
reporters of a newspaper permanently employed are
hired for the year, that his was a yearly engagement (.s).
In Fairman v. Oakford (t), it was again laid down by
{I) Parker v. Ibbetson (1858), 27 L. J. C. P. 236 ; 4 C. B. (n.s.) 346.
(m) Brown v. 5y??^o^^v (I860), 29 L. J. C. P. 2.11.
(n) Eram v. lloa (1872), L. R. 7 C. P. 138 ; 26 L. T. 70; see also
lioberl-son v. Jtnner (1867), 15 L. T. 514.
(o) R. V. Rolvenden (1815), 1 M. & Ry. 689.
(p) R. V. St. Marti7i:.s (1828), 8 B. & C. 674.
(7) Stijfy. Ccvs-scll (1856), 2 Jur. (N.s.) 348.
(/•) Baxter v. .V»rw (1844), 6 M. & (i. 938.
(/<) I/o/rroft V. Barher (1843), 1 C. & K. 4.
(t) Fairman v. Oakford (1860), 29 L. J. Ex. 459.
PEEMANENT EMPLOYMENT. 19
ChanneU, B., and apparently endorsed on appeal that
" except in the case of menial servants there is no
inflexible rule that a general hiring was a hiring for a
year, but that every case depended on its own peculiar
circumstances, and is for the jury to determine."
Agreement to serve not agreement to employ. — If a
servant agrees to serve for a term of years at so much a
week, the law does not imply from such an agreement
to serve a corresponding agreement to employ, and
consequently the master may dismiss the servant at any
time (without notice), and refuse to give him further
employment (a) . Mutuality can be said to be essential
to the contract of hiring only in the sense of reciprocity
of assent, and not in that of reciprocity of obligation.
If, however, the terms of the agreement are minutely
stated on the part of the servant who also agrees not to
take other employment, the master would be impliedly
bound for the same period (x) .
Permanent employment. — A contract to find a person
permanent employment means only that he shall be
employed for some substantial period of time, and shall
not be dismissed without a cause (y) .
Breakages and losses by servant. — The master can-
not keep back out of wages the value of any things
which may have been broken or lost by the servant
unless there is a distinct agreement to that effect.
To prevent misunderstanding thereafter it is desirable
therefore to insert such a proviso in the contract (z).
ill) Williamson v. Tai/lor (1843), 5 Q. B. 175; 13 L. J. Q. B. 81;
Aspden v. Austin. (1844), 5 Q. B. 671 ; 13 L. J. Q. B. 155; Dunn v.
Sayler (1844), 5 Q. B. 085 ; 13 L. J. Q. B. 159 ; Down v. Pinto (1854),
9 Ex. 327 ; 23 L. J. Ex. 103.
(x) Pilkinqton v. Scott (1846), 15 M. & W. 637 ; Hartley v. Cummings
(1847), 5 C. B. 247 ; 17 L. J. C. P. 84.
(?/) Emmens v. Elderton (1853), 4 H. L. C. 624 ; Hartley v. Cummintjs
(1847), 5 C. B. 247 ; Pilkinytonv. Scott (1846), 15 M. & W. 637 ; Doivn v.
Pinto (1854), 9 Ex. 327.
(z) Leloir v. Brintow (1815), 4 Camp. 134.
c2
20 CONTEACT OF HIEING AND SEEVICE.
Or a sum of money may be deposited by the servant
with the master as a guarantee fund, as is sometimes
done in hotels, to meet such losses. And as the master
will 1)0 bound to pay wages according to the length of
service although the servant may have left without
notice, it is well to stipulate that in such a case the
servant shall forfeit a month's wages, which the master
may deduct from the amount due, otherwise the master's
only remedy will be by action against the servant for
damages (a). If a servant is provided with a suit of
clothes in addition to his wages, he cannot retain it on
leaving his situation, unless there is a distinct proviso
to that effect (b) .
When servant entitled to quantum meruit. — If the
engagement is for no definite time, and payments are
not made at any regular periods, the servant may
recover on a quantum meruit for the time served. Thus
an assistant surgeon so engaged, after serving six
months fell ill and was incapacitated from serving.
After his recovery, he did not apply to return to his
employment, nor was he called upon to do so by his
employer. On action being brought to recover a year's
wages it was held not to be a yearly hiring, but that he
was entitled to a quantum meruit for the time actually
served and not paid for (c).
Injunction as a remedy for breach of the contract. —
The court will not decree specific performance in
contracts of personal service (d). There are several
remedies as (1) dismissal ; (2) by an action at law ;
(3) by injunction. The last will not lie where there
is only an affirmative agreement. But the court will
grant an injunction in aid of a contract of service
(n) Hnttman v. Bonbwis (1826), 2 C. & P. 510.
(//) Crorhr V. Molymux (1S28), '^ C. & 1'. 470.
((•) lUti/hy V. Rimmdl (1.S.3G), 1 M. & W. m{\.
(d) .Tiulioature Act, 1873, s. 25, sub-s. (7) ; Britain v. liossiter (1879),
11 Q. 15. I). 123.
BEEACH OP THE CONTRACT. 21
provided there is at least an express negative purpose,
if no express negative clause (e). An injunction was
therefore refused to restrain a manager who had agreed
to give his whole time, from joining another business.
The remedy it was said in such a case is by dismissal,
or by an action at law (/). The communication of
trade secrets acquired during service by a clerk is a
breach of the implied contract arising from the con-
fidence of his master, and in such a case an interim
injunction has been granted to restrain a clerk from
pubhshing or communicating the information thus
obtained irj) . This princii^le was still more emphatically
stated in a later case ili) in which a clerk copied
surreptitiously from the order book a list of his master's
customers for his own use after leaving and setting up
in a rival business. It was held that by such conduct
the imphed term in a contract of service involving
confidential relations of fidelity and good faith on the
part of the servant was broken, and that such a servant
is guilty both of breach of contract and of breach of
trust, and the master was entitled to (1) damages;
(2) dehvery up to him of all copies and extracts made ;
and (3) an injunction restraining the servant from
making use of the information thus improperly obtained.
An injunction was refused to restrain a carrier from
terminating an engagement with his manager when he
had agreed not to require the said manager to leave his
employ and determine their agreement^ on the ground
that although negative in form, it was positive and
affirmative in substance {i). But an injunction was
(e) ''Star" New.'^paper Go. v. O'Connor (1893), 9 T. L. E. 526.
(/) Whitwood Chemkal Co. v. Hardman, [1891] 2 CIi. -ilG ; 60 L. J.
Ch. 428. See judgment of Lindley, L.J.
(r/) Iferry weather v. Moore, [1892] 2 Ch. 518 ; 61 L. J. Ch. 505.
(h) Eobh V. Green, [1895] 2 Q. B. 315 ; 64 L. J. Q. B. 593 ; 59 J. P. 695 ;
Louis V. Smellie (1895), 73 L. T. 226.
{i) Davis v. Foreman, [1894] 3 Ch. 654.
22 CONTRACT OF IIIRING AND SERVICE.
granted against an actor, who having contracted to act
for a certain period in America with a company, one of
the rules of which was that no member should be
allowed to act at any other theatre without permission,
left it, returned to England and entered into an
engagement to act at a theatre in London. It was held
that the negative stipulation against acting elsewhere
could be enforced by injunction (/).
Conspiracy to interfere with contract of service. — It
was decided in a recent important case {k) that a com-
bination by two or more persons to induce others not to
employ a particular individual is actionable, if done for
the purpose of injuring that individual, and provided he
is thereby injured.
Stamps. — No stamp is required to an agreement or
memorandum for the hire of any labourer, artificer,
manufacturer, or menial servant (/). Stokers on a
steamship (m) , an overseer in a printing office (m) , are
artificers, and a man engaged to look after a glebe is a
labourer (o). By the Customs and Inland Bevenue Act,
18G9 ip), a duty of 15s. is payable for any male servant.
Sub-section (3) of s. 69 of the Act defines the term
male servant. No duty is payable if the engagement is
to serve for a portion only of each day (q) . Temporary
waiters at a hotel (r), a man regularly employed as
groom and yardman (.s), have been held subject to duty.
(/) Orim.^fonv. Cimnini/Iiam, [1894] 1 Q. B. 1'2.">.
(/•) Timperton v. Rmsi^ll, [189.3] 1 Q. B. 715 ; 02 L. J. Q. B. 412.
(/) 54 & 55 Vict. c. 39, sclied. 1.
[m) Wilmn v. Zidueta (18.')()), 14 Q. B. 405 ; 19 L. J. Q. B. 49.
(71) Bixhopv. LeAts (18.58), 1 F. & F. 401.
(o) niq. V. Worthy (1852), 21 L. J. M. C. 44 ; 11 Jur. 11:57.
(;;) .32 & 33 Vict. c. 14, s. 19.
(7) .39 & 40 Vict. c. 16, s. 5.
(r) Spcnrtr v. Srhuman (1821), 28 L. T. 873.
(.s) Ytlland v. Vincmt (1883), 47 J. P. 230.
(23)
CHAPTEE III.
The Consideration — Wages.
Consideration — express or implied. — The contract of
liiring to be valid requires consideration which may be
express or imphed. To entitle a servant to wages no
express agreement to that effect is required ; but every
retainer of a servant will be presumed to be in con-
sideration of wages until the contrary is shown, which
may be done either by proving an express agreement
that the services were to be rendered gratuitously as
wdth a view to a legacy from the employer (t) , or to
being bound as an apprentice {u) . Where, however,
work is done in expectation of a legacy, the executor
cannot be sued on a quantum meruit for it {v). But if
there is from the circumstances of the case an implied
promise to pay wages the servant may claim fair
remuneration on a quantum meruit. Such a claim may
be met by pleading cohabitation {w) or misconduct (x).
A promise to pay a gratuity is no ground for action (?/) ,
unless it has been agreed that it shall form part of the
wages {z) .
When wages cannot be claimed. — If the amount of
remuneration is left absolutely at the discretion of the
master no action will lie for wages. Thus, for example,
a person who had performed work for a committee
{t) Le Sage v. Coussmalcer (1794), 1 Esp. 188.
(?a) WUhins V. Welti (1825), 2 C. & P. 231.
(v) Oshorn v. Guy's Hospital (1726), 2 Stra. 728.
(«') Bradshaw v. Hay ward (1842), Car. & M. 591.
\x) Monhnan v. Shepherdson (1840), 11 A. & E. 411.
(y) Parker v. Ihbetson (1858), 27 L. J. C. P. 236.
(2) Man.^dd v. Scott (1833), 1 CI. & F. 329.
24 THE CONSIDERATION — WAGES.
under a resolution " that any service to be rendered by
him should be taken into consideration, and such
remuneration should be made as shoidd be deemed
right," was unable to recover anything. Lord Ellcn-
horoucjli saying " it was an engagement accepted by the
plaintiff on no definite terms , . . and who was
thus throwing himself on the mercy of those with
whom he contracted" {a). It is somewhat difficult to
reconcile this view with some other decisions. For
instance, where a manager wrote to his would-be
employer saying " the amount of payment I am to
receive I leave entirely to you," it was held that he was
entitled to what a jury might award, on a quantum
meruit, the amount, his employer acting bond fide, ought
to have given {h) : and a surgeon who, at the request of
a board of guardians, attended pauper children attacked
by cholera on a verbal understanding that they would
pay him what they thought a right and proper
remuneration, was entitled, not to accept 501. offered
him, but to maintain an action for what was proper
recompense for his services, the amount to be ascertained
by a jury(c). The distinction, if any, must be that
where there is definite promise to pay something though
undetermined, remuneration may then be recovered in
proportion to the services rendered. On this principle
a father who made a definite promise of a share of his
business to his son, to be settled later on, was held
liable to give the son what a jury should decide was a
fair proportion (d). Again, reasonable remuneration,
the actual amount to be determined by a jury, was held
recoverable in the case of a tradesman who, at the
defendant's request, and promise to " make him a
(a) Taylor v, Breiver (1813), 1 .M. & 8. 290.
{b) Jinjant v. niyht (1839), 5 M. & W. 114.
{<■) Bird V. McGahey (1849), 2 C. & K. 707.
(d) Peacock v. rtacock (1809), 2 Cuini>. 45.
WAGES. 25
handsome present," undertook to take care of his house,
and shew it for the purpose of letting (e) . It may at
least be inferred from these cases that where there is no
express agreement as to the amomit of the wages or
remuneration, or the same cannot be proved, a i3romise
may be imphed on the part of the master to pay the
servant so much as his services are worth, wliich if
disputed between them must be settled by a jmy. If,
however, there is a proviso in the agreement that the
amount of remuneration is to be determined by some
third person, then the servant cannot recover any w^ages
without first applying to the third party to fix their
amount (/).
Additional remuneration and extra work. — A servant
is not entitled, in the absence of an express agreement,
to extra remuneration beyond his ordinary wages for
any extra work or duty, unless such work or duty is
clearly outside that which he undertook to perform
under the original contract of hiring. And even where
there is a promise to pay additional wages, but no
increase of the work, such promise cannot be enforced,
for it is made without consideration (g). In a case (A)
where a deputy to a clerk to Land Tax Commissioners
sought to recover against the executor of his deceased
principal increased salary for executing the duties of a
new office to which the deceased had been appointed,
it was observed that had the plaintiff's case rested
whoUy on the fact of the new duty being imposed upon
him, he would not have been entitled to any additional
salary on a quantum meruit', if it did, every porter in a
shop, or clerk in an office, would upon an increase in his
master's business be equally entitled to demand an
(e) Jeu-ry v. Bush (1814), 5 Taunt. 302.
(/) Oiren v. Bowen (1829), 4 C. & P. 93.
(g) Harris v. Carter (1854), 3 E. & B. 559.
0i) Bell V. Drummond (1791), 1 Peake, 63.
26 THE CONSIDERATION — WAGES.
increase of wages, But upon the evidence it was clear
that the testator himself thought he ought to pay
something, and the only matter in dispute between him
and his deputy was the amount of the allowance.
Absence from temporary illness. — If the contract
docs not otherwise provide, and no other arrangement
is made, a servant temporarily absent from his work on
account of illness will be entitled to his wages during
his enforced absence. A brewer who had entered into
an agreement to serve ten years at a weekly wage, with
a house and coals, fell ill and was unable to do his usual
work for thirteen weeks. After recovery he returned
to his work and was paid as usual. He was successful
in an action to recover his wages for the weeks he was
away, on the ground that as the contract was not
rescinded there was no suspension of the weekly pay-
ments (i) . If, however, there is a distinct agreement
that the servant shall be able to perform and shall
actually perform the services contracted for, he would
not be able to recover wages for any time during which
illness prevented him from serving, although the hiring
continued throughout (A') .
What servant entitled to if dismissed. — Wliere a
yearly servant (not menial) is dismissed for any cause
which justifies the master in discharging him without
notice, he cannot recover any of the year's wages, as
the year must be completed before the servant is entitled
to anything (Z) ; and that even though the master may
have recovered damages against him for the same act of
misconduct (m) . But menial servants would appear to
{i) Cuckwn V. Stones (185.3), 28 L. J. Q. B. 24.
(k) I)i</li.i V. East India Co. (1851), 18 L. T. 9.3.
(/) Spain V. Aniott (1817), 2 Stark. 2.56; Ix\ v. Wtl/ord (1778),
Calfl. 57; Turner v. Rohin-^on (1833), 5 B. & Ad. 789; Ridqu-aif v.
JInnijerford Market Co. (1835), 3 A. & E. 171 ; Lilley v. Elwin (1848),
II Q. B. 742.
(m) Turner v. Bobin^on, supra.
DISMISSAL. 27
be entitled to wages up to the day of dismissal, upon
the ground, it is said, of that being the general under-
standing on the subject; unless, indeed, the dismissal
be for embezzlement, in which case it has been ruled (w)
that the amount of the embezzlement is immaterial,
and that though the arrears of wages may exceed in
value the amount embezzled the servant cannot recover
any part of them.
If a clerk or other yearly servant (not menial)
improperly without just cause leave his situation without
notice, it seems to be doubtful whether he thereby dis-
entitles himself to any unpaid part of the current year's
wages, but by so doing he would unquestionably be
liable to an action for leaving without notice (o) .
Remedies of servant unjustly dismissed. — If a servant
is dismissed without good cause he may either regard
the contract as at an end, and sue his master on a
quantum meruit for the wages due for the service he has
actuaUy rendered {p) ; or he may regard the contract as
still existing and bring an action for damages (g) ; and
he may do this whether his wages have been paid up to
the time he was discharged or not ; the maximum
amount of such damage in the case of a domestic servant
would be one month's wages (?•) ; or he may wait until
the time of the contract has expired and sue for the
whole of his wages (s) .
Receipts for, and application of wages. — It is well to
be able to prove the payment of wages, and therefore
(n) Broivn v. Croft flS28), 6 C. & P. 46.
(o) Bird V. Randall (1762), 3 Burr. 1345 ; Hidtman v. Boiduois (1826),
2 C. & P. 510.
(2i) Lilleyv. Ehcin (1848), 61 Q. B. 755; Planche v. Colhurn (1831),
8 Bing. 14.
(q) Gandall v. Pontignay (1816), 1 Stark. 190; CoUimv. Price (1828),
5 Bing. 132.
(r) FewingsY. Tisdal (1847), 1 Ex. 295.
(s) Rohinwn v. Hindman (1801), 3 Esp. 235.
28 THE CONSIDERATION — WAGES.
receipts for the same should be taken ; but if a servant
has left his situation for any considerable time the
presumption will be that he has been paid(0. The
Statute of Limitations (u) includes claims for wages, so
that they are barred after six years. "V^Tien a servant
is under age the master may be considered to stand as
it were in loco parentis, and it will not be safe for him
to advance money on account of wages without seeing
to its proper application, for if spent on articles of
finery or other unnecessary things, or expended in a
way not for the servant's benefit, the master will be
liable to pay it over again. This was the decision in a
case (x) where the master advanced money to his infant
female servant to buy a silk dress, lace, and other
unnecessary articles to the value of G^., and also money
to pay the coach fare of her mother. It was held that
the master could not set off against the servant's claim
for wages, the moneys so paid, and that only as to so
much as was for the purchase of necessaries, was the
papncnt valid.
Breakages and losses by servant. — If goods are lost
or broken by a servant the master cannot, in the
absence of express agreement, retain out of, or set
off against the servant's wages the value of the damage
he has suffered (?/). The master's only remedy is by
proceeding against the servant, or, by refusing to pay
the wages, enabling himself to set u]3 a counter-claim
when the servant brings an action for their recovery.
Provision of medical attendance for servant. — A
master is not Ijound to provide liis servant witli medical
attendance in case of illness or accident (z) ; but if a
(t) Sdlen V. Norinan (1829), 4 C. & P. 80.
(m) 21 Jac. I., c. 16.
{x) Heduky v. Holt (1829), 4 C. & P. 104.
(y) Lbloir v. Bn'sfon- (ISI.")), 4 Camp. 1.34.
(z) Newby v. Wiltshire (1802), 3 li. & P. 247; Winutll v. Adney
(1802), 3 B. & P. 247.
ILLEGAL CONTRACTS. 29
servant fall ill, and the master calls in his own medical
man to attend on him, the master will not be permitted
to deduct the amount of the doctor's bill from the
servant's wages unless there is a special agreement
between them that he should do so (a) .
Adequacy. — Although it is essential to the contract
of hiring that there should be consideration, the courts
will not inquire into its adequacy. If there is some
valuable consideration the law will not attempt to go
behind it. It is for the parties to agree among them-
selves what its amomit shall be (h) . A verbal promise
to work without wages is not binding (c) .
Illegal and immoral contracts. — Any contract of
hiring made for an illegal or immoral purpose is void.
In an action (d) by a printer to recover from a publisher
for work done in accordance with an agreement to
print an obscene work, Best, C.J., said, " Every servant
to the lowest engaged in such a transaction is prevented
from recovering compensation."
If there are both good and bad considerations for the
same entire promise, and one of such considerations is
against the law the whole contract is void (e). In
cases, therefore, where a female servant, hired at certain
wages, has cohabited with her master she has been
unable to recover any part of them, there not having
been in law any contract between them (/).
Contracts in restraint of trade. — Any contract of
hirino- which necessitated a general restraint of trade
would be void. Ever since the leading case of Mitchel v.
(a) SeHen v. Norvian (18-29), 4 C. & P. 80.
(b) Hitchcock V. Coker (1837), 6 A. & E. 438.
(c) Lambert v. Northern (1869), 18 W. R. 180.
(d) Poplett V. Stockdale (1825), 2 C. & P. 198,
(e) Girardy v. Richardson (1798), 1 Esp. 131.
(/) R. V. Northwinqfield (1831), 1 B. & Ad. 912; Bradshaw v.
Hayward (1842), Car. & M. 591.
30 THE CONSIDERATION — WAGES.
Reynolds ig), decided as long ago as 1711, it has always
been held that all contracts in general restraint of
trade are void, l)ut that limited restraints, if for good
consideration, are legal (li). A number of manufacturers
of cotton yarn and cloth entered into a bond which,
among other things, determined the amount of wages
to be paid to their workpeople and servants engaged in
the factories (/). This bond was held to be illegal at
common law, and in delivering the judgment of the
Court of Exchequer Chamber, Aldcrson, B., said,
" Prima facie, it is the privilege of a trader in a free
country, in all matters not contrary to law, to regulate
his own mode of carrying it on according to his own
discretion and choice. If the law has in any matter
regulated 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. Now, here the
obligors to this bond have clearly put themselves into
a situation of restraint. First, each of them is prevented
from paying any amount of wages, except such as the
majority may fix, whatever may be the circumstances
of the work to be done and his own opinion thereon ;
secondly, they can only employ persons for such times
and ])eriods as the majority may fix on, however much
the minority may deem it for their interest to do other-
wise. . . . We see no way of avoiding the con-
clusion that if a l)ond of this sort between masters is
capable of being enforced at law, an agreement to the
same effect amongst workmen must be equally legal
and enforceable, and so we shall be giving legal
(()) Mitrhel v. Reynolds, 1 Smith's L. C.
(h) Collim V. Lork-e (1879), L. R. 4 Ap. 674. Sec, liowover, tlic
important case of Xoydmfcldt v. Maxim-Xordenftlilt Co., [1894]
A. C. 53;"), and the judgment of Lord Herschkli,.
(i) Hilton V. Ecktrdey (18.56), 25 L. J. Q. V.. 199 ; 6 E. & B. 47. See
also Ward v. Byrne (1839), 5 M. & W. 548 ; Mallaii v. Ma,y (1843),
1 1 M. & W. 653.
BANKRUPT SERVANT, ETC. 31
effect to combinations of workmen for the purpose of
raising wages, and make their strikes capable of being
enforced by law."
By the Trades TJyiion Act, 1871 (k), it was enacted
that the purposes of any trade union shall not, by reason
merely that they are in restraint of trade, be unlawful,
so as to render void or voidable any agreement or
trust.
Servant absolved from service if great additional
risk. — If the risks of an enterprise for which a servant
has been engaged at a fixed sum be intensified in the
course of it, the servant is not bound to continue in the
service of his master, and is entitled to the full sum
bargained for (/) .
Bankrupt servant. — If a servant becomes bankrupt
the wages earned by him are not " salary or income "
within the meaning of s. 53, sub-s. (2), of the Bankruptcy
Act, 1883 (??0, and therefore no order can be made
under that section for payment of any part of such
wages to his trustee in bankruptcy (;0-
When agreement in writing not binding on servant. —
A tramway conductor was held not precluded from
bringing an action against his employers for wages,
although he had signed an agreement to forfeit his
wages for breach of the rules, because the manager
refused him the opportunity of being heard on the
question (o) .
Procedure. — In case of a dispute about wages the
servant should bring an action for their recovery in
the county court if the amount is not more than 50L
(Z-) 34 & 35 Vict. c. 31, s. .3.
(/) O'Neil V. Armstrong, [1895] 2 Q. B. 418.
{m) 46 & 47 Vict. c. 52.
(71) In re Jo7ie.% Ex parte Lloyd (No. 2), [1891] 2 Q. B. 231 ;
Cf. Gihson V. Carrnther.i (1841), 8 M. & W. 343.
(o) Armstrong v. South London Tramways Co. (1891), 64 L. T. 96.
32 THE COXSroERATION — ^WAGES.
By consent of the parties the county court may deal
with a larger amount. If the action is brought in the
High Court, and not more than 101. is recovered,
the plaintiff will lose his costs unless the court
especially decrees otherwise on the ground that there
was sufficient reason for bringing the action in that
court (p).
The Employers and Worhnen Act, 1875 (q), enabling
a court of summary jurisdiction to settle disputes
regarding w^ages where the amount claimed does not
exceed 10/., does not apply to domestic or menial
servants : they are expressly excluded.
The Councils of Conciliation Act, 1867 (r), does
not apply to domestic servants nor to servants in
industry.
(p) 51 & r)-2 Vict. c. 43, s. 116.
(q) 38 & 39 Vict. c. 90, s. 10.
(r) Conciliation Act, 189G (59 & GO Vict. c. 30).
( 33 )
CHAPTER IV.
Dissolution of the Conteact. — Discharge.
The contract of hiring may be determined by the
following causes : —
1. Death of either party to it. — It is dissolved by the
death either of the master or of the servant. There
could be no question on this point, as far as the servant
is concerned, and with regard to the master, the case of
Farroio v. Wilson (s) clearly decides the matter. The
decision there was that a farm bailiff, who had been
Iiired under a contract requiring six months' notice on
either side for its determination, could not compel the
administratrix of his late master to continue him in her
service, nor to pay him the six months' wages. If,
■however, the executors of the deceased master continue
the servant in their employ, the original contract being
with the master and his executors, the latter will be
liable. An engineer who entered into a six years'
agreement of this nature was dismissed by the executors,
after they had continued him in their employment and
■actually raised his salary. He was successful in action
■against the executors, and the jury awarded him 600/. {t).
2. Bankruptcy of the master does not in itself effect
a dissolution of the contract. If, in fact, the servant
continues to serve he would appear to be entitled to be
paid pro rata for the time he so served {u) ; but if the
service terminates directly the bankruptcy occurs, the
contract would probably be held to have come to an end.
(,s) Farrow v. Wihon (1869), L. R. 4 C. P. 764 ; 38 L. J. C. P. .326.
(t) Danson v. Jieeve.^ (1892), 8 T. L. R. 391.
ill) Thomas Y. Williaim {\%M), 1 A. & E. 685.
M. & S. D
34 DISSOLUTIOX OF THE CONTRACT — DISCHARGE.
Clerks and servants are entitled under the Preferential
Patjments Act, 1888 {x), repeating and re-enacting
section 40, sub-section (1) (c) of the Banhruptcij Act,
1883 iy), to have four months' wages, if so much is due
to them, and not exceeding 50Z. Labourers and workmen
are entitled to two months' wages up to 25Z. Servants
need not wait for the payment due to them under the
Act until the affairs of the bankrupt have been investi-
gated by his examination {z) .
In the case of Companies, going into liquidation (a), or
the appointment of a receiver (b) operates to discharge
the servants. And passing a resolution to wind up a
company operates as a notice of dismissal to the
company's servants (c).
The creditors or the official receiver of a bankrupt's
projDerty cannot insist upon the fulfilment of the
contract by the servant (d) .
3. Change of the employers, as a change in the con-
stitution of a firm of partners. — In the absence of an
express agreement to the contraiy, the death or retire-
ment of one or more of the partners in a partnership
firm dissolves any contract of hiring and service which
has been entered into with the original firm (e). If
there are two partners, and one of them gives a servant
notice to leave, whilst the other gives him permission to
remain, there is no discharge, and he may remain in his
situation (/).
i. By notice. — (i.) In the case of domestic servants,
a month's notice is requisite, or in lieu thereof a month's
(.r) 51 & 52 Vict. c. 62. (y) 46 & 47 Vict. c. 52.
(;:) Ex parte Powis, L't Brown (1874), 4.3 L". J. 15k. 24 ; 29 L. T. 654.
(«) In ri'. Oriental Rank Corporation [MnrDou-airs cam), (1886),
55 L. J. Ch. 620.
(h) Reid V. Exp/osire.x Co. (1887), 19 Q. B. D. 264.
(r) Ex parte Schumann, Jic Fo-stir ami Co. (1SS7), 19 L. R. Ir. 241.
(d) (lihmn V. CarrnthtrH (1841), 8 M. & W. 84;5.
(,] Tasbr V. Shepherd (1861), 30 L. J. Jv\. 207 ; Bract v. Colder,
f 189.") 12 q. B. 2.").3.
(/) Donaldson v. Williaim (1833), 1 Cr. & M. 345.
BY NOTICE. 35
wages must be paid. If such a servant leaves his
situation without just cause, or is for some good reason
rightfully dismissed, he cannot recover any wages,
which otherwise would be due since the date of the
last monthlj' payment. For example, if the servant is
paid monthly on the first of each month, and leaves
without notice, or is dismissed on the 20th, he would
be unable to recover any wages for the interval between
the first and the '20th ; and further might be subject to
an action for damages by his master, which would be
assessed probably in such a case at one month's
wages {g) . If, after proper notice, a servant refuses to
leave, the master is justified in emplojang a certain
amount of force to compel him to do so (li).
(ii.) In the case of clerks and other superior servants
of this class, employed on a general hiring, that is to
say a yearly one, neither party has the right to
determine the contract, except for some good reason,
which will be considered later, at any other period than
at the expiration of the current year (/) ; but it has
never been clearly decided what the length of notice
must be, and the decisions on the point are anything
but uniform. It would be wise always to give at least
three months' notice, and in most cases this would no
doubt be adequate. Clerks, commercial travellers, and
governesses have been held entitled to three months'
notice {j). The sub-editor of a daily newspaper has
{(I) Walsh X. Wnlley (1874), 43 L. J. Q. B. 102 ; L. R. 9 Q. B. 267.
(h) Markuy v. Ford (1860), 29 L. Ex. 404 ; Walsh v. Wallty,
■nipra.
(?) This is by no means certain. See Bkst, C.J., in Bicston v. Collifcr
(1827), 4 Bing. 309; and Coleridge, J., in Eyan v. Jenkinvon (X'SoQ),
25 L. J. Q. B. 11. But see Dexma.x, C.J., in Faircett v. Cash (1834),
5 B. & Ad. 904.
(/) Gandnll v. Pontignay (1816), 1 Stark. 198; Williams v. Bi/rne
(1837), 7 A. & E. 177; Hultman v. Bonlnois (1S26), 2 C. & P. 81;);
Todd V. Kerrirh (1852), 22 L. J. Ex. 1; Beesfoii v. Collyer (1827),
4 Bing. 309 ; Pottle v. Sharp (1896), 65 L. J. Ch. 908 ; 75 L. T. 265.
3G DISSOLUTION OF THE CONTRACT. — DISCIIAKGE.
been found by a jury to be entitled to six months'
notice (/v) . Shortly after, the editor of a weekly news-
paper was held entitled to twelve months' notice (/).
And a foreign correspondent of the " Times," where no
custom was proved, entitled to reasonable notice, and
six months was considered reasonable (m).
When a servant may be dismissed without notice. —
A servant may be dismissed without notice under
certain circumstances, as wilful disobedience, grossly
immoral conduct, habitual negligence, conduct such as
to seriously injure his master's business, incompetency,
illness causing permanent incapacity for work. Each
of these will now be briefly considered.
(a.) Wilful disobedience to lawful orders (n). — The
orders, the disobedience to which will justify dismissal,
must be within the scope of the servant's duties. A
man, for example, engaged as a lace buyer, refused to
obey an order to card lace, and was consequently dis-
missed. It was held that there was no good ground for
his dismissal, as carding was not within the scope of his
work as buyer (o). The refusal, however, of a servant
oo obey his master's order to take his horse to the
marsh until he had had his dinner, which was just
ready, was considered good cause for dismissal (j)).
This principle has been carried to an extreme, as in the
case of Turner v. Mason (q), in which a servant was
dismissed for having visited, without leave, her dying
mother. On the other hand, it was decided in an older
case, that the absence of a servant without leave to
{k) Chnmher/ain v. /Jnineff (1892), 8 T. L. R. 2M.
(/) Hmnum v. aiUiart Smith (I8!I2), 8 T. L. R. 284.
[m] Loire v. Wa/fer (18i)2), 8 T. L. R. 3.")S.
(M) Callo V. Jh-oiuirkn- (]S:i\), 4 C. k V. .")18.
(o) J'rirc v. Mouatt (1802), 11 (J. H. (n.s.) .")08.
\p) Spain V. Ariioff (1817), 2 Stark. 2.')().
(7) Tunn-rv. Ma.-<oii (184.")), 14 .M. iV \V. 112.
WILFUL DISOBEDIEXCE. 37
find another situation, is not sufficient ground for
dismissal (;•). Speaking generally, the commands of
the master must be reasonable if the disobedience is to
justify dismissal (s).- And no doubt cases might arise
where disobedience on the part of the servant would be
justifiable, as where a servant apprehended danger to
his life or violence to his person. And if for any cause,
such as infectious disease, a servant had good reason
to believe his life depended on leaving the house, it is
questionable whether the command of his master to
remain in the house under such circumstances would
be lawful (t).
A single act of disobedience, if it does not cause loss
to the master, will not justify dismissal, though, if
repeated, the servant might rightly suffer dismissal. A
courier, for instance, was not justly dismissed for being
sulky, and on one occasion engaging rooms at a hotel
contrary to orders (u). Though the messman of a
regiment, who refused for half-an-hour to serve up
dinner, was held rightfully dismissed (x) . And although
a servant might be dismissed for repeated acts of
insolence, being insolent once would hardly justify
dismissal (y).
If dismissal for disobedience is based on the injury
resulting therefrom to the master's business, it is
essential that proof of such actual loss should be forth-
coming (4). A waggoner refusing to work without
extra beer (a), and a domestic servant for staying out
all night {h), were held justly dismissed. Receiving
(;•) R. V. Polesworth (1811), 2 B. & Aid. 483.
(,s) Jacquof V. Bourra (1839), 3 Jur. 776.
(0 Tiirmr v. Mason. (1845), 14 M. & W. 112.
((() Callo V. BroHUcktr (1831), 4 C. & P. 518.
(x) Churchtrard v. Chainher.t (1860), 2 F. & F. 229.
(y) Edirard-s v. Lenn/ (1860), 2 F. & F. 94.
(z) C«.s'.sOH.v V. SHiuier (1843), 11 M. & W. 171.
(n) Lilley v. Ehcin (1848), 11 Q. B. 742 ; 12 Jur. 623.
[b) A'ohin.son v. Hindman (1801), 3 Esp. 235.
38 DISSOLUTION OF THE CONTRACT — DISCHAEGE.
money contrary to an express agreement at the time
of liiriiig is a sufficient cause for dismissal (c).
(b.) Grossly immoral conduct. — The following are
instances of immoral conduct wliicli the courts have
held to justify dismissal in the case of domestic
servants : Being found with child (d), though a servant
cannot be compelled to be examined to see whether she
is enciente (e). A man servant indecently assaulting a
maid servant (/), and if the latter is in the same
service, both may be dismissed {g). Habitual drunken-
ness {li) . If a principle is to be found for these decisions,
it may be that such conduct in one so closely associated
with the house and family of the master, as a domestic
is, must seriously injure the master's family. It is in
harmony with this principle that servants not resident
in the master's house and employed in outside work are
not dismissable for immorality unconnected with their
service (i) . It Avould appear, if the case of Fletcher v.
Krell (Ix) is to be relied on, that misconduct previous to
entering into service which requires residence in the
master's house will not justify dismissal. It this case,
a lady obtained the situation of governess in a gentle-
man's family, and in her application for the post
described herself as a spinster, whereas she was in reality
a divorced woman. This was the plea set up by the
master in defence of an action brought for breach of
contract, and the plea was held bad, as there was no
allegation of fraud.
(r) Una/ V. Chandler (1856), 8 C. & V. 80.
(d) R. V. Brampton (1777), Cald. 11.
(c) Lattir V. Brnddcll (1881), M L. J. Q. B. 448 ; 44 L. T. 309.
( /•) A/ kill V. Ar/on (18.S0), 4 C. & P. 208.
((/) It V. HW/o>t/(1778), Cald. 57.
()*) Spark V. Phillips (1839), 5 M. & W. 279; Farquhar v. Xaish
(1893), 17 C. of Scss. Cas. 716 (Sc).
(/) Rrad V. Dnmmorc (1840), 9 C. & P. 594.
(k) Fhtcher v. Kr(ll (1873), 42 L. J. Q. B. 55 ; Cf. Andrewsv. Oarstein
(1861), 31 L. J. C. P. 15.
INCOMPETENCE. 39
For noisy and turbulent conduct late at niglit, a
servant may not only be dismissed, but may be given
into custody (/).
Theft {m) or embezzlement {n) from his master would,
of course, justify dismissal. But where a school teacher
was dismissed a fortnight after being arrested on a
criminal charge, it was held that proper notice had not
been given, and that an injunction was rightly applied
for immediately the letter of dismissal w^as received,
and 40Z. damages were awarded (o). A surveyor who
was wrongfully dismissed because a charge of defrauding
a railway company was brought against him, applied
for an injunction to restrain the county council from
dismissing him. The court decided that the plaintiff
was, on the evidence brought before it, entitled to a
declaration that he was not guilty of the offence with
which he had been charged. The actual injunction
being: left over for consideration later if occasion should
arise {p) .
A master would be justified in dismissing a clerk
whom he found had been engaged in gambling in
differences on a large scale {q).
(c.) Incompetence or unskilfulness. — Any one who
holds himself out as possessing special skill in any
particular direction, and is engaged on the faith of his
profession, may be dismissed if he shows himself grossly
incompetent. For instance, a scene painter who showed
gross unskilfulness in the work he had undertaken (r).
The superintendent of a railway contractor's works
at 350Z. a year, paid monthly, being dismissed for
[1) Shaw V. Chairritie (1850), 3 C. & K. 21.
(m) Ciuiningham v. Fonhlanque (1833), 6 C. & P. 44.
(h) Spotswoode v. Harrow (1850), 5 Exc. 110 ; 19 L. J. Ex. 22G.
(o) Kemp V. Gaddington School Board (1893), 9 T. L. R. 301.
(p) Pamoris v. London County Council (1893), 9 T. L. R. 619.
(q) Pearse v. Fo-ster (1S86), 17 Q. B. D. 536.
(r) Harmer v. Corndius (1858), 28 L. J. C. P, 86.
40 DISSOLUTION OF THE CONTRACT — DISCHARGE.
incompetence, was able to recover only a month's
salary (s). This principle would hardly apply to the
ordinary domestic servant who may be said to be
always knowingly taken with all faults. When, however,
a domestic servant is hired for a special purpose, and
that alone, and higher wages are paid on that under-
standing, as in the case of a skilled cook, dismissal lor
incompetence would no doubt be held justifiable.
(d.) Negligence. — Habitual negligence on the part of
the servant such as will cause injury to his master's
business is good ground for his dismissal. This was
laid down by Parke, J., in his judgment in the case of
Callo V. Brouncker (t). In a later case, the manager of
an ironworks, engaged for three years on the under-
standing that he would use his best endeavours to
promote the interests of his employer, failed in an
action for wages, after being dismissed before the com-
pletion of the term for negligence in so doing (ii).
The foreman of a firm of silk manufacturers who
was dismissed for having advised and assisted their
apprentice to quit their service, and go to America, not
only failed to recover wages on the ground that his
dismissal was unjustifiable, but his employers recovered
damages against him {x). If a clerk who is employed
to conduct his master's business sets up a claim to be a
partner, his master is justified in dismissing him
instantly from his service (y).
A clerk employed by a company to enter proceedings
in their minute book, wrote on the margin of the book
a protest in his own name against a summons to
appoint his successor. In an action brought by him for
(s) Smrh V. niiUr;/ (\S7^), 2S L. T. 411.
(t) Callo V. B)-oinicl-er{\S'M), 4 C. & P. -llS.
(n) Ardinq v. Lomax (185o), 24 L. J. Ex. SO.
{x) Turnery. Robinson {\SZ'i), 5 B. & Ad. 789.
(y) Amor v. Fearon (1839), 9 A. & E. 548.
NEGLIGENCE. 41
wrongful dismissal, it was held that the jury were
justified in finding this to be a sufficient cause for
dismissal (2). If a servant has been engaged in
practices — as, for example, gambling on the Stock
Exchange — which may put him in such a position as to
lay him open to very strong temptation to seriously
neglect, or even injure his master's business, the master
would, on becoming aware of the fact, be justified in
instantly dismissing him. This was clearly decided in
the case of Pearce\. Foster (a), when Lord Esher, M.K.,
in his judgment, said: " The rule of law is that where
a person has entered into the position of servant, if he
does anything incompatible with the due or faithful
discharge of his duty to his master, the latter has the
right to dismiss him. The relation of master and
servant implies necessarily that the servant shall be in
a position to perform his duty duly and faithfully, and
if by his own act he prevents himself from doing so, the
master may dismiss him. ... If a servant is
guilty of such a crime outside his service as to make it
unsafe for a master to keep him in his employ, the
servant may be dismissed by his master. ... I
should like to say in plain terms, so that it may be
understood, that the moment it is made known to a
master that his clerk has been gambling to anything
like this extent on the Stock Exchange, that of itself
will authorize any tribunal in saying that the master
was justified in dismissing the servant."
A merely temporary negligence which results in no
real loss to the master, will not warrant the servant's
dismissal. This was the decision arrived at in the case
of a French master in a school, who came back four
days late after the holidays. There was no proof that
his employer had suffered any loss in consequence in the
(z) Bidtjivay v. Hunger ford Market. Co. (1835), 3 A. & E. 171.
(a) Pearce v. Foster (1886), 17 Q. B. D. 536 ; 55 L. J. Q. B. 306.
42 DISSOLUTION OF THE CONTRACT — DISCHARGE.
carrying on of his school, and he was, therefore, not
justified in terminating the engagement (h). A servant
entrusted with his master's goods would be dismissible
for negligence if he did not take proper care of them ;
but where he loses them as the result of irresistible
violence, e.g., robbery, he would not be adjudged guilty
of negligence (c).
If a master dismiss a servant without good reason, he
may justify such dismissal by showing that there was
just cause for the dismissal at the time. This was first
decided in the case of Ridgioay v. Hungcrford Market
Co. {d), and this decision was followed shortly after in
another case (e), in which an accountant was held
rightfully discharged for having made a false entry and
representation, though the reason assigned for his dis-
charge was disrespect towards his employer. TindaI,C.J.,
remarked in his judgment: "I am not prepared to
say that when a party is discharged on good ground
and a reason is assigned at the time, another reason
may not afterwards be proved, as in Crowther v.
Bamshotham (/), where in trespass for breaking and
entering the plaintiff's close and taking his goods, it was
held, that the defendant might justify under a sufficient
legal process if he had it in fact at the time, although
he declared then that he entered for another cause."
Again in Cussons v. Shinner (g), where it was decided
that the proprietors of a cotton factory could plead in
justification of the discharge of their manager, an act
of misconduct known to them at the time, though he
was, in fact, dismissed on other grounds. As to whether
the master must be aivare of the misconduct which
(}>) Fitleid V. Armstrong (1837), 7 A. & E. 557.
(c) Walktr V. British GuaraiUee Asuoc. (1852), 18 Q. B. 277 ;
21 L. J. Q. B. 257.
(d) Ridijway v. Hinx/erford Market Co. (1835), 3 A. & K. 171.
(e) Baillie v. Kell (1838), 4 Bing. N. C. 038.
(/) Crowther Y. Ranusbot ham {170^), 7 T. R. 754.
(ij) Cmaons v. Skinner (1843), 11 M. & W. IGl ; 12 L. J. Ex. 347.
neglige:\'ce. 43
would justify dismissal at the time he gave his servant
notice, the decisions are somewhat conflicting. In the
last-mentioned case, Farke, B., clearly laid it down that
scienter at the time of dismissal was material ; in his
judgment, the learned baron said : "It would be
necessary for the defendants, to justify the discharge, to
show that at the time the discharge took place they
knew at least of the act of misconduct (g)." And a
little later, it was decided that a solicitor was bound to
show that he knew of the misconduct alleged in the
justification of the dismissal of his articled pupil, viz.,
that he had set his clients against his master, before he
dismissed him {h). In Spotswoocle v. Barrow {i), a
case tried some time after those just mentioned, it
appears doubtful from the reports whether knowledge
at the time of dismissal was considered essential.
Alderson, B., is reported to have said: "i\.ll the defendants
undertake to prove is, that they had justifiable cause for
the dismissal." This case was referred to at some length
by Bramicell, B., in his judgment in Cowan v. Mil-
bourn (k), and makes it clearer that in the report, that
knowledge is not necessary. This is certainly the
decision in a case (/) decided in the same year, in
which it was laid down, that if an employer discharge
his servant, and at the time of the discharge, a good
cause for dismissal in fact exists, the employer is justified
in discharging the servant, although at the time of the
dismissal, the employer did not know of that cause.
Ajid this was followed in a recent case of the dismissal
of a managing director of a company. Beceiving a
commission from a shipbuilding company was held to
be a good ground for dismissal, although not discovered
(h) Mercer v. Whall (1845), 5 Q. B. 447.
(«') Spot-iiooode V. Barrow (1850), 5 Ex. 110.
(k) Cowan X. Milbouni, (18Q1), 36 L. J. Ex. 124.
(I) Willets Y. Green (1850), 3 C. & K. 59.
44 DISSOLrXION of the contract — DISCHARGE.
until after the dismissal had taken place. It was also
decided, that his salary being payable yearly, and he
hehv^ dismissed for misconduct, he was not entitled to
any part of the unpaid salary for the current year of
his service {)i).
(e.) Permanent illness. — If a servant suffer from
temporary illness, and the contract of hiring is not
rescinded, and there is no express agreement on the
matter, dismissal will not be justifiable ; but if the
ilness is permanent, it is good ground for discharging
the servant (o). Where, however, illness is temporary,
and, indeed, last for only a very short time, yet if it is
of vital importance to the proper carrying out of the
contract, goes, in fact, to the root of the matter, the
employer is justified in rescinding the contract, and
appointing another person in the place of the servant
rendered hors cle combat at the critical moment by
illness. This is what happened in the case of an opera
sinser who was too ill to attend the later rehearsals and
the first four performances of an opera in which she had
contracted to sing and play. Her employers were held
justified in appointing a substitute and rescinding the con-
tract ijj). But being prevented from attending merely
the rehearsals, is not sufficient ground for dismissal (q).
The illness of a clerk caused by an act of misconduct
before he entered into the contract of hiring, but which
he did not know at that time would lead to his illness
and render him incapable of doing his work, was held
not to justify his dismissal though he was k(>pt away
from business for more than a month (r) .
{») BoMon Deep Sea Fishery Co. v. AnseU (1888), .39 Cli. I). 339 ;,
59 L. T. 345.
(0) Cook-soti V. SfoneM (1859), 28 L. J. Q. B. 25 ; 1 E. & B. 248.
(p) PouxMard v. Sjners mid Pond (187(>), 1 Q. B. T). 414.
(7) Bcttiuiv. di/c (IST.')), 1 g. U. 1). 1S.3 ; 45 L. .J. Q. ]'.. 209.
(r) R((j. V. Ra.-i'rhtn (187S), .38 L. T. .38 ; 42 J. P. 2G4.
( 45 )
CHAPTEK V.
The Eights and Duties of Master and Servant.
Rights and duties of the parties reciprocal. — There
are reciprocal duties between masters and servants. .
From the servant is due obedience and respect, from
the master protection and good treatment, are words
spoken nearly a century ago by 'a distinguished and
most humane judge (s). The servant, having agreed to
a contract of hiring and service, it becomes his duty
to enter upon that service and to obey all lawful orders,
and to work at all reasonable hours when required. If
he fails to do so, an action may be brought against him
by his master, though such a course is scarcely desirable
from the master's point of view since the means of the
servant will usually not permit of any substantial
damages being recovered. Keciprocally it is the duty
of the master to receive the servant into his service as
agreed upon, and if he refuses to do so for no just cause,
the servant may bring an action against him for breach
of contract, provided he is not precluded from doing
so by the Statute of Frauds (t). If a master openly
avers that it is not his intention to keep the contract he
has made to take the servant into his service, the
servant may immediately bring an action, and need
not wait until the date when the contract of service
begins («)•
Rights of the master. — In the absence of any stipu-
lation on the subject, a servant hired under a general
hiring may at any time be required by his master to
(.s) Lord Kenyon in Lim/aiid v. Stepheu-s (1801), 3 Esp. 2G9.
(f) Braceqirdle v. Haald (1818), 1 B. & Aid. 722.
((() HocMtv V. Dt La Tour {\'6oi), 2 E. & B. 078 ; 22 L. J. Q. B. 455.
4() rxIGIITS AND DUTIES OF MASTER AND SERVANT.
perform any lawful and reasonable service whatever {x) ;
and the servant is bound to execute the same with all
reasonable dispatch, and to the best of his ability.
This general right is however so universally restrained,
either expressly or by implication, that the limited
right may be considered the rule, and the general right
the exception. It maj'^ be expressly limited by a
stipulation that the servant shall only be required to
render certain defined services, or that certain others
shall not be required of him, or as is more commonly
the case it may be impliedly restrained by hiring the
servant to fill a particular capacity.
What orders are reasonable. — In order to ascertain
therefore whether a master is entitled to exact from
his sers^ant any particular service, it is necessary to
inquire first, "What were the services contracted for ?"
and secondly, " Does the service required come within
the scope of them?" Where the servant has only agreed
to render certain definite services, as to collect moneys,
or to solicit orders for his employer, or even to act as a
clerk, questions can seldom, if ever arise ; nor indeed,
where the hiring is general, and the only stipulation is
with regard to the services which shall not be required
or rendered. The difficulty chiefly arises in respect to
menial servants where the limitations of the master's
general rights is merely to be implied by reason of the
servant having been hired to fill a particular capacity.
In this case if the scope of the servant's contract is only
to be ascertained by defining what are the peculiar
duties attached to his situation, to the exclusion of all
others, the question would seem to be open to endless
discussion, from the infinitely varied customs in
different families. But if the true construction of such
a contract on the part of the servant be that the
(.r) Titrnr-r v. Mumou (1845), 14 M. & \\'. ll-J ; 14 L. .1. Kx. lUl.
WHAT OEDERS ARE REASOXABLE, 47
servant engages to perform the duties peculiarly in-
cident to that capacity, and in subordination thereto to
perform such other reasonable services as the master
may require of him, and his time will allow, the
difficulty is greatly diminished. The usual custom of
servants, before engaging themselves, of inquiring what
other servants are kept, strongly countenances, such a
view, on their part at least, of the contract. If it were
otherwise there would be violation of the principle
before stated, that the master is entitled to require his
servant to work at all reasonable hours, during the
continuance of the contract. The question whether
the service required comes within the scope of those
contracted for would therefore appear to resolve itself
into whether or not such service is reasonable, as
regards the servant concerned. That the courts are not
disposed to narrowly limit the master's judgment as to
what are reasonable orders, was shown iu the case of
Spam V. Arnott {y), in which a servant who usually
breakfasted at five o'clock in the morning and dined at
two, was ordered by his master to take a horse to the
marsh, about a mile away, just as dinner was ready, and
upon his refusal to go until he had dined, was instantly
discharged by his master, and one of the questions
raised at the trial was the propriety of such a dismissal.
It was then said by Lord EUenborough that by
persisting in his refusal to obey his master's orders
" the master was warranted in turning him away ....
there is no contract between the parties except that
which the law makes for them, and it may be hard
upon the servant, but it would be exceedingly incon-
venient if the servant were permitted to set himself up
to control his master in his domestic regulations, such
as the time of dinner In this instance it
(y) Spain v. Arnotf (1817), 2 Stark, 256.
48 RIGHTS AND DUTIES OF MASTER AND SERVANT.
might be very inconvenient for the master to change
the horn* of dinner. After a refusal on the part of a
servant to perform his work, the master is not bound to
keep him on as a burthensome and useless servant to
the end of the year. The question really comes to this,
whether the master or the servant is to have the
superior authority."
Servant must not be unreasonable. — Conversely,
umvasoniible demands by the servant may justify the
master in putting an end to the contract. A waggoner,
for example, was held rightly dismissed for refusing
to work at harvest time until eight in the evening,
because suitable beer was not supplied (/:). And the
refusal of the messman of a regiment to send up dinner
for half-an-hour was considered reasonable ground for
his dismissal ((/)•
Capacity and status of servant. — In determining
wliL'Uicr any given service may or may not reasonably
be required of a servant, hired to fill a particular
capacity, not only must the nominal rank or class of
the servant be taken into consideration, but also his
real and acknowledged station in society as an indi-
vidual. To take, for example, the class of clerks. What
would be reasonable in the case of one engaged in
simple routine work requiring little education, and
involving no responsibility, hired at a weekly wage,
mif'ht be very unreasonable in that of one placed in a
position of responsibility and confidence, at a large
yearly salary, and of superior education. Where a lace
buyer was ordered to card lace and on his refusal to do
so was discharged by his employer, the jury found that
carding lace was not within the scope of his duties, and
therefore the order was not reasonable (b) .
(z) Lilley v. Ehrin (1848), 11 Q. B. 742 ; 17 L. J. Q. 15. 132.
{a) Churchward v. Chnmhus (18G0), 2 F. & Y. 22U.
(},) I'rirt V. Mvuatt (18(32), 1 1 C. B. (n.s.) .308.
INVENTIONS BY SERVANTS. 49
Orders accompanied by danger.— Orders involvinf^
risk, not in view when the contract was made, such as
from the presence of infectious disease, or from fear of
personal violence, are not reasonable, and the servant
would 1)6 justified in not obeying them (c).
Domestic regulations by master.^ — In addition to the
performance of certain services a master may lay down
and insist upon the observance by his domestic servants
of such rules for the regulation of his household as he
may think proper, and provided the same be reasonable
and the infringement of them interfere with the due
economy of the family, there can be no reason to doubt
the right of the master to dismiss without notice a
servant who wilfully broke or habitually neglected such
rules (d).
Master entitled to servant's earnings. — The master
has a right to all the earnings of his servant which he
gains whilst acting as servant, and will be able to
recover the same from the servant if he works for a
third party, whether that work be undertaken with or
without his consent (e). The master will be able to
recover from the third party only when permission has
been given to the servant to work for him ; the servant
then may be regarded as the agent of his master.
Inventions by servants. — A master as such has no
right to an invention because the inventor happens to
be his servant at the time (/) ; but if the servant be
expressly employed on account of his skill to invent or
design, any inventions or designs made by him will
((•) Turnery. Ma-son (184.5), 14 M. & W. 112; 14 L. .T. Ex. .Sll.
Woodley v. Mefropo/ifau iJistrirf Rail. Co. (1S77), 2 Ex. I). .S84 ;
46 L. J. Ex. 521.
((/) Rohivson V. Jlindman (1801), 3 Esp. 23.").
{(') Mori.son v. Thompwn (1874), 43 L. J. Q. B. 21.').
(/) n. V. Arhrri<iht (178.1), I W'cl). P. C. 71 ; Re Rii.'<-«e/r.'< Patent
(1807), 30 L. T. 178 : 2 De ({. iV .T. l.'^d.
.M. & s. E
.')0 i;[(HIl'S AND DT'TIES OF MASTEIJ AND SERVANT.
l)(!lon<:( to his master, and the master will he ahle to
rcfristcr or ]Kiteiit th(Mn (7).
May a master chastise his servant. — As regards the
right of tlie master to chastise his servant the old
authorities appear to recocrnize such a right, hut it may
well he douhted whether such a right exists at the
present day. Whilst the infliction of coi*poral punish-
ment hy the master may he permissihle (Ji) in the case
of young servants under age on the principle that the
master stands to some extent in loco parentis, it will at
least in the case of servants of full age be in the words
of BlacJistonc " good cause of departure" (i). If death
follow'ed the infliction of such punishment the master
would be guilty of manslaughter (k). It has been
expressly decided that an upper servant has no right to
chastise a lower one (/).
If servant injures master. — For breach of contract,
express or implied, and for wanton damage, a master has
precisely the same rights and remedies against his servant
as against any other person, however inexpedient it may
he to pursue the same on account of the inability,
usually, of the servant to pay the consequent damages
and costs. For personal injury amounting to a breach
of the peace the master would be justified in giving the
servant into the custody of the police (;»).
If a servant knowingly make his master break his
covenant he is liable in damnges (n).
Duty of servant to be diligent. — It is the duty of a
{(/) Mdkepcacc. v. J nekton (1H13), 4 'rauiit. TT'I ; liloxnm v. Eliic
(l«2;j), 1 C. & P. o.lS ; Shiiherd v. Conquest (18o()), 2.) L. J. (J. P. 127 ;
Xottwic V. Jnrkmn (1883), 52 L. .J. Q. B. 7fiO ; 1 1 Q. B. D. 627.
(h) Winslom V. Unn (182.S), 1 B. & ('. 4(i0 : Hi.LKOYn. J.
(/) 1 C. 427.
a-) /.V7. V. Lfqiiflt (1838), 8C. & P. 1!)1.
(/) /.V7. V. IIinithi/iX^rA), 3 C. & K. 142.
(m) S'lidv V. Ufialrlfic (IS.IO), 3 C. it K. 21.
(«) ///(.s-vy V. Pnr,/(mu), 1 Lev. 188.
PROTECTION OF YOUNG SERVANTS. 51
servant to regard with care and diligence the interests of
his master, and to exercise the same vigilance and atten-
tion as his master himself would have done. If he
undertakes an office of skill he impliedly represents
himself to be possessed of the skill requisite for the due
discharge of the functions of his office, and will be liable
for a breach of contract if he does not possess that skill,
or if possessing it he fails to exercise it.
Duty of servant to be careful of his master's property.
— It is the duty of the servant to take proper care of the
goods of his master entrusted to him, but the master
cannot recover against his servant for any such goods
accidentally lost or damaged by him unless negligence
also be shown (o) , and then he cannot retain the amount
of the damage out of the servant's wages, unless it has
been so stipulated in the contract of hiring (^j).
Clerks and stewards must account for moneys
received. — It is the duty of a clerk, or other servant
employed to receive and pay money for his master, to
keep and render true and explicit accounts and
vouchers (q), and of a steward to account periodically,
although not called upon to do so, and if through
neglect in this respect he should at a future time be
unable to vouch his accounts, the Court of Chancery
will not assist him (r).
Duty of the master to protect young servants. — It
is the master's duty to protect young servants, and if the
master so abuse his position as to be the cause of the
seduction or prostitution of a servant under sixteen
(o) Countess of Salop V. Crompton (1601), Cro. Eliz. 777; Savage v.
WaWiam (1708), 11 Mod. 135 ; Xkkvoii v. Brohan (1713), luMod. 109;
Pritchard v. Hitchcock (\9,\^ , Q> M. & G. 165, Cresswell, J.
[p) Leloirx. Bristow (1815), 4 Camp. 134.
(7) Jenkins V. Gould (1827), 3 Russ. 385.
[r) Onnond [Lady] v. Hutchinson (1806), 13 Ves. 53, 92.
e2
52 rJGIITS AND DUTIES OF MASTER AND SERVANT.
years of age, there is power by statute (s) to remove her
from his service, and place her in charge of any suitable
person ready to take her.
Duty of master to pay wages agreed on. — It is the duty
of the master to pay the wages agreed on{t) in the con-
tract of hiring, and the parties cannot be too clear and
explicit in thisrespect in order to prevent subsequent mis-
understanding and dispute. This is especially desirable
when the master is a relative, as a father or brother,
for in such a case it might be contended that board and
residence were sufficient consideration, and the law
would not necessarily infer, in the absence of an express
agreement, that wages were to be paid. Under such
circumstances it would be for a jury to decide (u).
Duty of master to provide food if agreement to do so.
— Where by the contract of hiring there is an agreement,
either expressed or implied, that the servant shall be
provided with food, it is the master's duty to supply the
same, and in case of his failing to do so, the servant
may recover against him for breach of the contract,
and would no doubt be justified in leaving his master's
service without notice, but he would probably not in
consequence be entitled to obtain the food requisite for
his maintenance by pledging his master's credit.
Formerly the only redress the servant had was a cixal
one for breach of contract, unless he was of tender
years and under the dominion and control of the
master {x). In such case it was considered a mis-
demeanor for the master or mistress to refuse, or to
neglect to provide such a servant with sufficient food or
other necessaries so as thereby to injure his health (//),
(.i) 48&49 Viri. c. U!), s. 12.
(<) Sec Chap. 111.
(ii) Darks V. JJaries {18.S9), 9 C. & P. 89.
(,r) J{. V. Riil/(n/ (1811), 2 Camj). (j.jO.
(>j) N. V, Fritiid (18U2), Ku.ss. & Kv. 22.
FOOD. 53
and if death ensued they might be indicted for murder,
or at least manslaughter. The expression " tender
years " was interpreted in a notorious case {z) as
meaning under sixteen years of age. Servants above
this age were therefore not protected until the Legis-
lature stepped in and by statute (a) enacted that "where
a master, being legally liable to provide for his servant
necessary food, clothing, medical aid or lodging, shall
wilfully and without lawful excuse refuses or neglects to
provide the same, whereby the health of such servant
is, or is likely to be seriously or permanently injured, he
shall on summary conviction be liable either to pay a
penalty not exceeding 201., or to be imprisoned for a
term not exceeding six months, with or without hard
labour." Under certain ckcumstances where bodily
injury is inflicted on servants under sixteen years of
age, for which the party committing it is liable to be
indicted, and the circumstances of which offence
amount in point of law to a felony, or an attempt to
commit a felony, the guardians or overseers may be
required to prosecute, and the cost of the prosecution
may be paid out of the common fund of the union, and
the clerk to the guardians may be bound over to
prosecute (b) . From the remarks of the judges in the
case of Beg. v. G. J. Smith (c) when reviewed and the
conviction quashed by the Com^t for Crown Cases
Eeserved it clearly appears that if a master wilfully
neglects to supply proper food and lodging to his servant
at a time when the servant is reduced to such an
enfeebled state of body or mind as to be helpless and
(2) Heg. V. Sloane, et Ux. (1851), 33 Sess. Pap. (C. C. C.) 482.
la) 14 & 15 Vict. c. 11, s. 1, repealed by 24 <fc 25 Vict. c. 95, s. 1,
and re-enacted by 24 & 25 Vict. c. 100, s. 26, partly repealed by
S. L. R. Act, 1892 (55 & 56 Vict. c. 19 ) ; See also 38 & 39 Vict. c. 86, .s. 6
(Conspiracy and Protection of Property Act, 1875).
{!)) 24 & 25 Vict. c. 100, s. 73.
(c) Reij. V. C. /. Smith (1865), 34 L. J. M. C. 155. See especially the
judgments of Erle, C.J., and BL.\CKBTiEiN, J.
54 RIGHTS AND DUTIES OF MASTER AND SERVANT.
unable to take care of hiiiiself, or is so under the
dominion and restraint of his master, as to be unable to
withdraw himself from his control, and the death of
the servant is caused or accelerated by such neglect,
the master is liable to be convicted of manslaughter.
How far master's duty to provide medical attend-
ance.— It is not the duty of the master to supply his
servant with medical attendance and medicine when ill,
nor surgical aid if he meet with an accident, unless
there has been an agreement to that effect, or from the
circumstances it may be implied that he has undertaken
or consented to do so. This is the conclusion to be drawn
from an examination of the various cases dealing with
the subject which however, at a first glance, seem to be
somewhat conflicting. If the master direct a doctor to
attend his servant there can be no doubt of his liability to
pay, for even a mere stranger asking a medical man to
attend a poor person will be liable to pay him for his
trouble (d). In a case (c) at nisi 2) fins for the recovery
of an apothecary's bill for medicine and attendance
provided to the servant of the defendant. Lord
Kenyon, C.J., said " he was of opinion that the master
was obhged to provide for his servant in sickness and
in health, and that therefore he was liable for medicines
furnished to his servant while in his service ; not that
his servant was at liberty to go alone and contract
debts for medicines, but that while he was under his
master's roof, the master was under a legal as well as a
moral obligation to provide the necessary medicines,
and to pay for such as were administered to his servant
under such circumstances." This opinion was endorsed
not long after in another case (/) at nisi pr ins by Lord
EJdon, C.J.
(,l) Watlim, V. Waltn-s (1S23), 1 C. & P. l.S'i.
(e) Srurmanv. CaMel/ (1795), 1 Esp. 270.
(/) Simmons v. WiUmott (1800), 3 Esp. 91.
MEDICAL ATTENDANCE. 55
The liability of the master for medical attendance
furnished to his servant has often been raised in cases
where servants have received such assistance from the
Poor Law Autliorities who have endeavoured to recoup
themselves by bringing an action against the master
for moneys they have so expended. From various
decisions it is plain that the parish authorities are
liable for medical aid supplied to a servant, who from
illness is unable to support himself, and in the absence
of any express agreement between master and servant
they cannot recover the cost of such medical assistance
from the master. Thus where a farmer's servant
whilst attending his master's waggon had broken his
leg, it was held that the master was not liable to
reimburse the parish for medicines supplied to his
servant, and Lord Mansfield said, "there is, in point of
law, no action against the master to compel hiin to
repay the parish for the cure of his servant ; the parish
is bound to take care of accidents" {g). The parish
which gives the medical assistance cannot recover from
an adjoining parish where the accident actually took
place, if the overseers knew of the surgeon's attendance
and did not repudiate it, for this is equivalent to a
request on their part iji) . But a surgeon who attended
a pauper in a j)arish other than that of his settlement,
which latter allowed him 4s., recovered the amount of
his medical attendance from the latter parish (i). In
the case of a servant in industry requiring medical aid,
the overseers of the parish in which he is legally settled
at the time are liable for such medical attendance and
medicines as may have been supplied (A;), and conse-
quently the master of such a servant would not be liable
{(j) Xeirhj V. Wiltshire (1785), 2 Esp. 739.
(h) Lamb v. Burne (1815), 4 M. & S. 275.
[i) Winq V. Mill (1817), 1 B. & A. 104.
(l) Watson V. Turner (1767), Bull. N. P. 147.
56 RIGHTS AND DUTIES OF MASTER AND SERVANT.
unless he expressly desired a medical man to attend
him, or has so acted that it may be implied he has
undertalven to supply the servant with medical atten-
dance in illness. An overseer who neglects to provide
medical aid for a pauper in illness is indictable, and
that although the pauper has never received or been in
need of relief before (T) .
The decision of Lord Kenyon was overruled, the law
being laid down both as regards the'liability of the master
to his servant and to the poor law authorities in the
important case of Wennall v.Adney {m). This was an
action brought by a surgeon against the master to
recover the cost of medicine and attendance furnished
to his servant who had broken his arm whilst driving
his master's team, and who had been hired at the yearly
wage of 3Z. 10s. and his victuals. Le Blanc, J., non-
suited the plaintiff on the ground that the defendant, not
having employed him, nor made any promise of pay-
ment, was not liable. On discharging a rule nid to set
aside the non-suit, the several judges delivered their
opinions at length. Lord Alvanley, C.J., said, " I have
reason to believe that the opinion delivered by Lord
Kenyon in the case of Scarman v. Casfell was not a
hasty opinion, but fonncd upon reflection. I have,
however, no difficulty in saying that I concur with the
learned judge before whom this case was tried, in
thinking that the defendant is not liable ... In this
kind of question much may depend upon the nature of
the contract entered into between the master and the
servant . . . It is sufficient to observe that previous
to the case of Scarijian v. Castell there is no authority
in the law of England to be found which warrants the
position contended for by the plaintiff. I have no
(/) i?. V. Warren (1803), Kus.s. & Rv. C. C. R. 482.
(m) WennaU v. Adnei/ (1802), 3 B. & P. 247.
MEDICAL ATTENDANCE. 5/
doubt whatever that the parish officers are bound to
assist where such accidents as this take place, and that
the law will so far raise an implied contract against
them as to enable any person who offers that imme-
diate assistance, which the necessity of the case usually
requires, to recover against them the amount of money
expended." Heath, J. added, " I believe the humanity
of Lord Kcnyon misled him when he adopted the
doctrine upon which he decided the case of Scarman v.
Castelh Probably at the moment it occurred to him,
that if the master was not bound to provide medical
assistance for his servant, the latter would be left
whohy destitute, but I am perfectly sure it is more for
the advantage of servants that the legal claim for such
assistance should be against the parish officers, rather
than against the master, for the situation of many
masters, who are obliged to keep servants, is not such
as to enable them to afford sufficient assistance in cases
of serious illness." Boohe and Chambre, JJ., concurred,
the former observing, "If the general principle con-
tended for by the plaintiff were to be adopted as a rule
of law, many persons who are obhged, for the purposes
of their trade, to keep a number of servants would be
unable to fulfil the duty imposed upon them by the law.
It must be left to the humanity of every master to
decide whether he will assist his servant according to
his capacity or not."
AVhere a master had called in a medical man to
attend his servant, and sought to deduct the amount
of the doctor's bill from her wages, it was held that he
could not do so, and Gaselee, J., said, "I am not pre-
pared to say that a master is bomid to provide a menial
servant with medicines ; with respect to some other
servants he clearly is not so ; however, though it is
often done by masters for their menial servants, I do
.58 RIGHTS AND DUTIES OF MASTER AND SERVANT.
not think 1 sliuuld bo authorized in saying that they are
bound to do so " {)i).
That a master may render himself Hable to pay for
the medical aid given to his servant in consequence of
his acquiescence and knowledge implying a contract to
sn]')ply it, is shown by the case of Cooper v. Phillips (o),
which also brings out clearly when the master is and
when he is not liable to pay such charges. The facts
of this case were as follows : It was an action by a
surgeon for medical attendance on the defendant and
his family, and it appeared that the defendant and his
wife resided at a distance of about a mile and a half
from a house in which their younger children were
living under the charge of Susan Parry, who had acted
as wet nurse to two of the youngest children. The
defendant's wife was in the habit of going to see the
children three or four times a week, but it did not tran-
spire when the defendant himself was at the house.
Susan Parry was taken ill in consequence of suckling
the youngest of the children, and was attended for this
complaint by the plaintiff who was unknown to the
defendant, a Mr. Perry being the surgeon who regularly
attended his family. The defendant's wife knew of the
plaintiff's attending Parry, and did not express dis-
approbation of it ; the defendant hearing of Parry's
illness desired Mr. Berry to see her, and sent her lO.s.
to pay for medicine. There was a further charge in
the bill for attendance upon another servant, Ellen
Rea<l, who h;i(l hint her ankle in getting over a gate.
The plaintiff did not attend her by the desire of the
defendant or his wife, and for anything that appeared
without llicif Iviiowlcd^c. Tt was held tliat tlie master,
the defendant, was lial)le in the case of Parry, but not
in that of Pead. Mr. Justice Taunton in his judgment
(n) Sellen v. Norman (1829), 4 C. & P. 80.
(o) Cooper V. PhU/ijM (1831), 4 C. & P. 581.
INDEMNITY. 59
observed in regard to the case of Parry, "It appears her
illness arose whilst in the defendant's service and that
the defendant was informed of it, and that he sent Mr.
Berry to see her. This shows that he considered him-
self liable to take care of her in this illness ; and it is
also shown that his wife knew and did not disapprove
of the plaintiff's attendance ; and I think it must be
taken that the defendant's wife had the general super-
intendence of this house. It therefore appears to me
that for this part of the charge the defendant is liable.
Duty of master to indemnify servant for consequences
of obeying lawful orders. — It is the duty of the master to
indemnify the servant from the consequences of obeying
his lawful orders, and if a servant in carrying out his
master's orders do hond fide what he believes is a lawful
act, the master will be bound to indemnify him. Thus
an auctioneer having sold cattle for a man who falsely
held himself out to be their rightful owner, and, conse-
quently, being obliged to pay their value to the true
owner, was held entitled to be reimbursed by the person
who had so employed him {p). And again, where a
brickmaker in ignorance used another's trade mark at
the direction of his employer, he was held entitled to
recover from his employer the costs to which he had
been put in consequence of an action against him by
the aggrieved party {q).
If a servant act contrary to his master's orders, the
master is not bound to indemnify him from any loss he
may suffer {r). For example, if a servant sells goods
with a warranty after being expressly ordered not to
warrant them, he is not entitled to be reimbursed by
his master for any loss he suffers in consequence. And
[p) A damson v. Jarvis (1827), 4 Bing. 66.
(q) Dixon V. Fmvcus (1861), 30 L. J. Q. B. 137; TopHs v. Gram
(18.39), ,5 Bing. N. C. 636.
(/•) GrylU V. Davis (1831), 2 B. & Ad. 516.
GO RIGHTS AND DUTIES OF MASTER AND SERVANT.
if the servant commit a tortious act knowingly, as, for
example, an assault at the request of his master, he can
claim no indemnity from his master for the conse-
quences therehy falling on him.
Master cannot recover from servant for an illegal
act. — If a master suffer through the illegal act of his
servant he cannot recover the damages he suffers from
the servant. The proprietor of a newspaper, for
example, convicted and fined for the publication of a
libel in his paper, inserted "without his knowledge or
consent by the editor, cannot recover against the editor
the damages sustained by such conviction (s). In this
case Lord Lyndhurst remarked "I may say I entertain
little doubt that a person who is declared by the law to
be guilty of a crime cannot be allowed to recover
damages against another who has participated in its
commission."
(.S-) Colhourn v. Pafmore (1834), 1 C. M. k R. 73 ; Cf. R. v. Wa/fer
(1799), 3 Esp. 21. But see the remarks of Lord Hebscuell, C, in
Fa/mer v. Wick Sleuimhip Co., [1894] A. C. 318.
(61)
CHAPTEE VI.
The Eights of the Master as against
Third Parties.
Maintenance. — As one of the incidents to the relation
of master and servant the law looks upon the former to
some extent as a protector or patron, and therefore
sanctions the master's maintaining, that is assisting his
servant in any action at law against a stranger ;
although in general it is an offence against public
justice to encourage suits and animosities by helping to
bear the expenses of them and is in law called main-
tenance (t). But it is said that the master in real actions
cannot justify laying out money for his servant unless
he has some of his wages in his hands : which if the
ser^^ant be wilhng he may safely lay out on his behalf {u) .
Enticing away servant. — Since by the contract of
hiring the master is entitled to the full benefit of the
services impliedly promised to be rendered by the
servant, any act whereby the servant is enticed away,
prevented, or seduced from rendering those services,
either wholly or partially, is a wrong against the
master. For such an act (unless it happen by unavoid-
able accident or misfortune) the law gives the master a
remedy against the wrongdoer by an action to recover
damages for the loss occasioned by reason of his being
deprived of the services of his servant, technically
expressed by the phrase, ^er quod servitiiim amisit.
Thus where an opera singer having contracted to sing
at a particular theatre during a certain period was
[t] Elhoroutjh v. Ayre.<< (1870), L. R. 10 Eq. 367; Russell on
Crimes, i. 480 ; Bre.ay v. The Roijcd British Nurses Association (C. A.)
W. N. (1897), 63 ; Blackstoxe, i. 428.
(m) Hawkins P. C. 400.
(')2 RIGHTS OF MASTER AS AGAINST THIRD PARTIES.
enticed and procured by another theatre proprietor to
depart from her agreed employment during the term,
it was held by the court {Coleridge, J., diss.) that an
action was maintainable at common law, as maliciously
procuring the singer to break her contract was a wrong-
lul act from which damage accrued to the plaintiff ;
and that the action for maliciously persuading a servant
to quit his service is maintainable wherever there is at
the time of the persuading a binding contract of hiring
and service existing between the parties, whether the
service be then actually subsisting or not {x) .
If a person not having enticed or procured a servant
to leave his master, or at the time be ignorant that he
was in the service of another, employ such a servant
after receiving notice of the existence of the other
enofairement, he wull render himself liable to an action
for damages at the suit of the master (?/) . It has been
further held that in order to maintain such an action it
is not necessary for the employer and employed to be
in the strict relation of master and servant {z).
When action for enticing away does not lie. — Ko
action lies, however, for seducing a servant from his
master if the master has already recovered from the
servant the penalty which by agreement between them
should be paid by either of them on Ids faihng to carry
out his part of the contract {a).
Acain it is not actionable to induce a servant to leave
his master's service at the expiration of the time for
which the servant had hired himself, although the
servant had no intention at the time of quitting his
master's service {h).
(x) Lmnley v. G'.yR (ISoS), 22 L. J. Q. B. 463.
(?/) HIakaw. Lavyon (1795), G T. R. 221; l)e FranaMO \. liUDuim
(ISflO). ()3 L. T. 514 ; G L. T. R. 4Sf).
(:) /)< Fniin-i'sro v. Barniim, vhi supra; Eran-s v. Walton (1867),
L. R. 2 {'. P. 615 : Iiro>n, v. Ilnll (1881), 6 Q. B. I). 333.
('/) liird V. Ilnmlnll {\-{Yl), 3 Burr. 1345; 1 W. Bl. 372.
(Ii) Sidiol V. J/a?7y« {17!)y),2 Esp. 732. See Lord Kknyon's judgment.
SEDUCTION. 6B
Master may defend his servant from assault. — A
master may defend his servant from being beaten, or in
other words an assault is justifiable by a master in
defence of his servant (c), although there is an early
dictum to the contrary (d). And the master may
recover damages from the v^rongdoer, and this although
the servant may have recovered damages for the same
assault, for the servant is thus compensated for
personal injury, w^hereas the master is remunerated for
the loss of the services of his servant {e). There is,
however, this anomaly that if the servant dies as the
result of the injuries inflicted the master cannot
recover. Apart from Lord Campbell's Act (/), no
civil action is maintainable against a person who has
by negligence caused the death of another (g) .
A servant may in like manner lawfully assault a
third person in defence of his master {h) .
Upon the same principle of being deprived of his
servant's services a master may maintain an action for
debauching his female servant, though he is in no way
related to her by blood {i) .
Action for seduction. — The action brought by a
parent for the seduction of his daughter is based on the
fiction that the relationship of master and servant
exists between them, and that in consequence he is
entitled to compensation for the loss of his daughter's
services. Evidence of the most trifling services by the
daughter, as, for example, making the tea (A-), or doing
some little household work on returning home at night
(c) TicMl V. Bead (1773), LoflFt. 215. Lord Mansfield and note of
the learned reporter. 1 ((/) Salk. 407.
(e) Ditcham v. Bond (1884), 2 M. & S. 43G ; Hall v. Ho'Uamler (182,5),
4 B. & C. 660 ; Hodmll v. Stallyhraiis (1840), 11 B. & E. 301 ; and see
the remarks of Tindal, C.J., in GrinneU v. WtUs (1844), 7 M. &
G. 1042. (/) 9 & 10 Vict. c. 93.
((/) Oshorn V. Gillett (1873), 42 L. J. Ex. 53 (Bramwell, B., diss.)
(h) Leeward \. Basi/ee (1695), 1 Salk. 405.
(i) Fore,s v. Wilson (1791), 1 Peake, 55.
{k) Carr v. Clarke (1818), 2 Chit. Rep. 260.
64 RIGHTS OF MASTEB AS AGAINST THIRD PARTIES.
after serving elsewhere all day (/), liave been held
sufficient ground for bringing an action. Some of the
cases go even further, and the tendency is to infer from
the mere fact of the daughter residing with the father
that she is there for the purpose of service. In Evans
V. Walton (m), Bovill, C.J., observed: " In the case of
an action for seduction of a daughter, no proof of
service is necessary beyond the service implied from
the daughter living in her father's house as a member
of his family." And in another case («) the court held
that a girl not actually resident in her father's house,
but on her way home after leaving a situation was
sufficiently in her father's service to support an action.
"The girl," said the court, "is under twenty-one,
and is thereiore prima facie under the dominion of her
natural guardian, and as soon as a girl ceases to be
under the control of a real master, and intends to
return to her father's house, he has a right to her
services, and therefore there was a constructive service
in the present case." If the seduction is not followed
by pregnancy and illness by which loss of service might
be presumed an action will not lie (o). The daughter
need not be under age {])). And the seduction of a
married daughter separated from her husband and
living with her father and rendering him service is
good ground for an action by the father {q). Absence
of knowledge on the part of the seducer that the girl
was the plaintiff's servant does not affect his liability.
The plaintiff" need not prove that the defendant knew
the servant was in his service (;•)•
(I) liU V. Faux (186.S), .32 L. J. Q. B. .S86.
(m) Evam v. M a//o« (1SG7), L. R. 2 C. P. G15 ; 36 L. J. C. P. 307.
(n) Terry v. Ilutchimoti (1868), L. R. 3 Q. B. 599 ; 37 L.T. Q. B. •2-)7;
see also Maunder v. Venn (1829), M. & M. 323 : Jo)ien v. brown (1724),
1 Esp. 217.
(o) Lxier-son v. Miller (186G), 47 Barb. 47 (Am. Cas.)
(p) Bennett v. Alrott (1787), 2 T. R. 166.
(q) Harper v. /.»////« (1S27), 7 B. & C. 387.
(r) Foretsv. WtV:>o?t(1791), 1 Peake, 77. See Lord Kenyon's judgment
SEDUCTION. 65
In awarding damages of this nature the chief con-
sideration placed before the jury is the injured feeHngs
of the plaintiff, and it is for this that the compensation
is given, and not unfrequently to a liberal extent. " In
point of form," said Lord Eldon, "the action only
purports to give a recompense for loss of service ; but
we cannot shut our eyes to the fact that this is an
action brought by a parent for an injury to her child ;
in such cases I am of opinion that the jury may take
into their consideration all that she can feel from the
nature of the loss. They may look upon her as a
parent losing the comfort as well as the service of her
daughter " (s). An action may be brought not merely
by the parents, but also by any one in the relation of
master {t), by a brother {it), an aunt {x), or an adoptive
father {y) . The plaintiff may show the position in life {z)
of the defendant, but not his pecuniary condition (a).
The plaintiff cannot give evidence of his daughter's
good character till the other side try to shake it (6).
But in mitigation of damages, evidence of the girl's
immodest character may be given (c) ; or that by
keeping loose company she is the author of her own
wrong {d) .
In bringing an action for seduction it is stiU necessary
to allege the loss of service, to make an allegation per
quod servitium amisit.
(s) Bedford v. AFKowl (1800), 3 Esp. 119. See also Grinndl v. WdU
(1844), 7 M. & G. 1033 ; Andrews v. Askey (1837), 8 C. & P. 7.
(0 Fores v. Wihon (1791), 1 Peake, 77.
{II,) Howard v. Crowther (1841), 8 M. & W. 601.
[x) Edmondson v. Machell (1787), 2 T. R. 4.
(y) Irwin v. Dearman (1809), 11 East, 23.
(z) Andreivs v. Askey (1837), 8 C. & P. 7.
(a) HodsoU V. Taylor (1874), 43 L. J. Q. B. 14.
(b) Bamfield v. Massey (1808), 1 Camp. 460.
<r) Verrey v. WatUns (1836), 7 C. & P. 308.
{d) Reddie v. Scott (1795), 1 Peake, 316.
M. & S. F
( GG )
CHAPTEE VII.
Liability of the Master fok Injury to his
Servant.
The common law principle. — By the coininoii law
the relationship of master and servant does not impose
on the master a liahility to compensate his servant for
injury which may happen to him in the ordinary course
of his employment. This principle was distinctly laid
down in the case of Priestley v. Foioler{e), where a
servant, when engaged in taking goods to his master's
customers in an overloaded van, was thrown out and
his thigh broken through the van breaking down.
It was held that an action did not lie against the
master to compensate the servant for this injury.
Lord Ahinger, C.B., in his judgment, said, "It is
admitted there is no precedent for the present action
by a servant against a master. We are therefore to
decide the question on general principles, and in doing
so we are at liberty to look at the consequences one
way or the other The mere relation of
master and servant never can imply an obligation on
the part of the master to take more care of the
servant than he may reasonably be expected to do
of himself. He is no doul)t bound to provide for the
safety of his servant in the course of his employ-
ment to the best of his judgment, information and
belief. The servant is not bound to risk his safety
in the service of his master, and may, if he think
fit, decline any service in which he reasonably appre-
hends injury to himself : and in most of the cases in
which danger may be incurred, if not in all, he is
(e) Prk.itky v. Fowltr (1837), 3 M. & W. 1.
COMMON LAW PRINCIPLE. 67
just as likely to be acquainted with the probability
and extent of it as the master."
The simple common law principle, that a master is
not liable for injury to his servant in the course of
his service, has been often obscured, owing to the
numerous cases in which actions have been brought
against the master by a servant who has been
injured through the act of another servant of the
same master employed on the same work, or in
"common employment," as the phrase is. The case
of Priestley v. Fowler is constantly cited in illustra-
tion of this doctrine of common employment, though
it is uncertain how far that question was really
raised before the court which decided it. The law
was clearly stated by Lord Chancellor Cairns in the
case of Wilson v. Merry (/), when he observed, " The
liability or non-liability of a master to his workmen
cannot depend upon the question whether the author
of the accident is or is not, in any technical sense,
the fellow-workman or collaborateur of the sufferer.
The case of the fellow- workman is an example of the
rule, not the rule itself; the rule stands on broader
grounds. The master is not, and cannot be, liable
to his servant unless there be negligence on the part
of the master in that which he, the master, has con-
tracted or undertaken with his servant to do."
A master is bound to take all reasonable precautions
to secure the safety of his servants (g) .
Master liable if negligent. — A master therefore
becomes liable to his servant for injury if due to
the master's neghgence. Such negligence may be
shown in several ways, as by —
1. Not supplying sound and suitable tackle. — It is
{/) Wi/wn V. Merri/ (1868), L. R. 1 Sc A^j. 32G.
((/) Brydon v. Stewart (1885), 2 Macq. 30.
F 2
G8 LIABILITY OF M^LSTEE FOR INJURY TO HIS SERVANT.
incumbent on the master to take care that the tackle,
machinery or premises supphed are suitable and
sufficiently strong for the work in which they are
used. Examples of such liability are a miner being
injured by a stone falling from the roof of the pit in
which he was working owing to its not being safely
secured (h) ; or a miner being injured on ascending a
shaft which was unsafe (i) ; providing an unsafe
ladder (k) ; a shipowner supplying a stevedore with an
unsound chain (/) ; injury caused by the falling of a
defective door (in). In the last case, however, the
servant failed to fix liability on the master because
the statement of claim did not allege that the servant
was ignorant of the danger. The court held that there
was no right of action unless the statement of claim
alleged both that the master knew and the servant
was ignorant of the danger. It must not be inferred
from the preceding that the master is mider any
obligation not to expose the servant to extraordi-
nary danger and risk in the course of his employ-
ment : the relation of master and servant implies no
such undertaking on the part of the master (/?).
2. Carelessness in selecting his servants, and so
provide himself with incompetent ones(o), or an
insufficient number for the work in hand. But the
servant must be ignorant of this incompetency or
insufficiency, or at least, if aware of it, have called
{h) l'alltrso)i\. MV(/A<^'e (1S.")4), 1 Mac(i. 748.
(i) Brydon v. Sftivart (ISa.)), '2 Macq. 30.
(k) Wiliianu v. Clowih (IS.IS), 27 L. .J. Kx. 825.
(/) Murphy v. PhUlipH (1876), 35 L. T. 477.
{m) Griffiths v. London and St. Katheriiie's Dock Co. (1884),
19 Q. B. D. 259. See also Dynm v. Lmrh (1857), 2(j L. J. Ex. 221;
Davits V. ICnijland (18(54), 38 L. J. Q. B. .321.
(?(,) Riliy V. Jiaxi')ulal<:{ViHj\), 30 L. J. K\. 87 ; Seymow v. Maddicks
(1851), 20 L. J. Q. B. 326.
(o) llntrhin'<on v. Y. N. A- li. Rail. Co. (18.50), 19 L. J. Ex. 296;
Wiipnorev. Jay (1850), 19 L. J. Kx. 300; Tarrant v. Webb (ISdd),
25 L. J. C. P. 261.
MASTEE WORiaNG WITH SERVANT. 69
the attention of his master to the fact, or he will he
unahle to recover {p) .
It mnst not be inferred from the above that a master
by implication can be held to warrant to one servant
the competency of other servants working vdth him.
The only obligation upon him is to use proper dihgence
and care in securing competent servants {q) .
3. Personally interferes or actually works with his
servant. — If the master personally interferes with or
directs the work he will be hable for injury occurring
to his ser\^ants through his negligence. For instance,
a builder who personally interfered and directed his
workmen to make a scaffolding out of poles which
he knew to be unsound was held liable to make
compensation to a workman who was injured by the
scaffolding giving way and falling upon him, the said
workman having had no notice of the unsoundness (r) .
If the master actually works vdth his servant he
will be liable for injury occurring to the servant
through his (the master's) negHgence. And if such
a master be one of a partnership, and if his act of
negligence occurs in a matter within the scope of
the common undertaking of the partnership, all the
partners will be liable for the injury caused to the
servant (s) .
When a master is not liable. — A master is not liable
for injury to his servant if there is —
1. Contributory negligence on the servant's part. —
If, for instance, a servant continue to use tackle which
he knows to be unsafe he will be unable to recover from
(p) Skipp V. Eufitern Counties Rail. Co. (1854), 23 L. J. Ex. 23;
9 Ex. 223 ; Saxton v. Hawkesworth (1872), 26 L. T. 851.
(q) Tarrant v. Webb (1856), 25 L. J. C. P. 261.
(r) Roberts \: Smith (IS57), 26 L. J. Ex.319; Ormoml v. Holland
(1858), E. B. & K. 102.
(«) Ashworth v. Stamoick (1861), 30 L. J. Q. B. 182; 4 L. T. 85;
Mellors v. Shaiv (1861), 30 L. J. Q. B. 333.
70 LTAr.ir.TTY OF MASTEE FOE INJURY TO ITIS SERVANT.
his master for any injury arising therefrom. The
maxim Volenti non fit injuria appHes. This is ihus-
trated by the case of Griffiths v. Gidlow {t), in which a
workman knowingly used an unsafe hook for raising
water from a pit ; the hook broke, and in consequence
a tub of water fell and injured him. In another
case {li) a workman was injured whilst employed in a
dark narrow tunnel ; he was unable to recover, for it
was held that he had engaged in the work well knowing
the risks which must necessarily attend it. And again
where a miner was killed through the breaking of a
rope, he having negligently refused to accept the offer
to have it tested before use {x) .
The principle of Volenti nun. Jit injuria equally
applies if the master is aware of the defect causing the
injury (y). If, however, the master's attention has
been called to the defect, and under a promise that it
shall be rectified the servant continues the dangerous
employment and is injured, he will th(Mi linvo a right
of action against his master (£'). But in the light of a
recent case the inference may be drawn that the mere
continuance of a servant in an employment which he
knows renders him liable to injury is not ncn-c^ssarily
conclusive against his right of action if he is injured in
the course of such employment. In this case {a) the
House of Lords decided that when a workman engaged
in an employment not in itself dangerous is exposed to
danger arising from an operation in another department
(/) OnlUfhs V. aid/oir (18.")8), 27 L. J. Ex. 40,") ; 3 H. & N. 048.
(h) W'ooUcti V. Mttrop. Rail. Co. (1877), 4(5 L. J. Kx. iVil.
(x) Srnior'y. Ward (IS.jO), 28 L. J. (}. B. 139 ; 1 K. & K. 385. See
also Af-sop V. Yates (\Sm, 27 L. J. Ex. MG.
(V) J)i/ne7i V. Lmrh (18.17), 2(i L. J. Ex. 221 ; Pottsy. Plmihrtf {ISm,
33'L. t. Ill; Thomas v. QuarUrmaine (1887), 18 Q. B. D. 085;
Yarmouth v. I'rance (1887), 19 Q. B. 1). 047.
(%) Holmes V. Clarke (18()2), 31 L. J. Ex. 3.')0 ; 9 L. '1'. ITS.
(a) Smith v. Haker (1891), App. Cases, 325. See also Johnson v.
Lindsay (1891), App. Cases, 371.
CONTRIBUTORY NEGLIGENCE. 71
over which he has no control, the danger being created
or enhanced by the negHgence of the employer, the
mere fact that he undertakes or continues in such
employment, with full knowledge and understanding
of the danger, is not conclusive to show that he has
undertaken the risk so as to make the maxim Volenti
non fit injuria applicable in case of injury. The
question whether he has so undertaken the risk is on^
of fact, and not of law. And this is so both at common
law and in cases arising under the Employers' LiabiHty
Act, 1880 (i).
And in another case (c) it was held that the maxim
Volenti non fit injuria did not apply to a servant com-
pelled by the orders of his employer to work in a
place which he knew might be dangerous owing to
other work being carried out by another party, and
that he was entitled to recover from this party.
If the employment in which the servant is engaged
is subject to statutory regulations, under, for example,
the Factory and Workshop Acts {d) or the Coal and
Metalliferous Mines Kegulation Acts (e) , and injury
happens to the servant owing to breach of such regu-
lations on the part of such employer (there being no
contributory negligence on the part of the servant), the
employer will not be exempt from liability, although
the servant knew of the breach (/).
The master will also be liable if he employ an
inexperienced child to manage dangerous machinery,
although the danger would be evident to an adult {g) .
(h) 4.3 & 44 Vict. c. 42.
(c) Thrus,'idl v. Handyside (1888), 20 Q. B. D. 359.
(f/) 41 & 42 Vict. c. '16 (1878) ; 46 & 47 Vict. c. 53 (1883) ; 54 & 55
Vict. c. 75 (1891).
(e) 50 & 51 Vict. c. 58 (1887) ; 35 & .36 Vict. c. 77 (1872).
(/) Brittonv. Great Wt.-itern Cotton Co. (1872), L. R. 7 Ex. 130;
Senior v. Ward (1859), 28 L. .7. Q. B. 132.
{g) Grizzle v. Fmv^ (1863), 3 F. & F. 623 ; thoncrh see contra Murphy \.
Smith {IS65), 12 L. T. (n.s.) 605 ; also Lynch v. Nnrdla (1841), 1 Q. B. 29.
72 LIABILITY OF MASTER FOE INJURY TO HIS SERVANT.
2. The injury is caused by a fellow-servant in
common employment. — This has heeu the law ever
smce the case of Pricsfkij v. Foioler (Ji) was decided in
1837, where from the judgment of Lord Ahinger, C.B.,
it has been assumed that the accident which occurred
to the servant who was thrown from the van which
broke down was attributed to another servant who was
driving it. The Chief Baron, in the course of his
judgment, said, " If the master is hable to the servant
in this action, the principle of that liability will be
found to carry us to an alarming extent. He
who is responsible by his general duty, or by
the terms of his contract, for all the consequences
of negligence in a matter in which he is the
principal, is responsible for the neghgencc of all his
inferior agents. If the owner of the carriage is
therefore responsible for the sufficiency of his carriage
to his servant, he is responsible for the negligence of
his coachmaker, or his harness-maker, or his coachman.
The footman, therefore, who rides behind the carriage
may have an action against his master for a defect in
the carriage owing to the negligence of the coach-
maker, or for a defect in the harness arising from the
nedi^ence of the harness-maker, or for drunlienness,
neglect or want of skill in the coachman : nor is there
any reason why the principle should not, if apphcable
in this class of cases, extend to many others. The
master, for example, would be liable to the servant for
the negligence of the chambennaid, for putting him
into a damp bed ; for that of the upholsterer for sending
in a crazy bedstead, whereby he w^as made to fall
down while asleep and injure himself ; for the negli-
gence of the cook in not properly cleaning the copper
vessels used in the kitchen ; of the butcher, in supplying
the family with meat of a quality injurious to health ;
[h) Prkdky V. Folder (1837), 3 M. & W. L
INJURY BY FELLOW SERVANT. 7S
of the builder, for a defect in the foundations of the
house, whereby it fell and injured both the master and
the servant in the ruins. The inconvenience — ^not to say
the absurdity — of these consequences afford a sufficient
argument against the application of this principle to
the present case." It may be doubted whether some
of the analogies used by the learned judge are true
ones, and fairly illustrate the liability the servant tried
to fix on his master for the accident which gave rise to
Priestley v. Foioler. This judgment of Lord Ahinger
is, however, of very great importance, for it no doubt
largely guided subsequent decisions, and made Priestley
V. Foioler the leading case on the subject. It was
followed in 1850 in Hutchinson v. The York, New-
castle and BerivicTc Bail. Co. (i), where the railway
company was held not liable for the injury occasioned
to one of their own servants by a collision while he was
travelhng in one of their carriages in discharge of his
duty as their servant, the train causing the collision
being in charge of other servants of the company. The
injury was so caused that the company would un-
doubtedly have been liable if the party injured had
been a stranger travelhng as a passenger for hire. The
reasons for this decision appear from the judgment of
the court delivered by Alderson, B., who, in the course
of it, observed that, " The principle is that a servant
when he engages to serve a master undertakes 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 when he
is acting in the discharge of his duty as servant of him
who is the common servant of both The
master is not exempt from responsibility to his servant
for an injury occasioned to him by the act of another
(i) Hutchinson v. York, N. and B. Rail. Co. (18.50), 5 Ex. 3-13;
19 L. J. Ex. 296. See also Wvjmore v. Jaij (1850), 19 L. J. Ex. 300.
74 LIABILITY OF MASTER FOR INJURY TO HIS SERVANT.
servant when the servant injured was not at the time
of the injury acting in the service of liis master. In
such a case the servant injured is substantially a
stranger, and entitled to all the privileges which he
would have had if he had not been a servant."
The same principle has been held to apply to servants
of different masters when those masters are employed
for a common purpose by another, as sub-contractors
by a head contractor. All such servants are in the
common employment of the head contractor {k) . In a
recent case (l) the defendants lent a crane and the man
in charge of it to a firm engaged in loading a ship.
Through the negligence of this man injury resulted to
one of the servants of the loaders who was employed
to direct the working of the crane. It was held that
the defendants were not liable, for they had parted
with the power of controlling their servant in regard to
the matter in which he was engaged.
The law with regard to common employment was
plainly put by Lord Cramcorth, C, in the important
case of Bartonshill Coal Co. v. Reid{m). This case is
all the more important from its being a Scotch appeal
to the House of Lords, for the Scotch courts had not
previously taken the same view of the law on this
subject as that laid down in Priestley v. Foioler and
subsequently followed in England. That this case
received most careful and anxious consideration from
the law lords may be inferred from the fact that
judgment was not delivered until two years after the
case was argued before them. The Lord Chancellor, in
the course of his judgment, said, " Servants must be
supposed to have the risks of the service in contempla-
tion when they voluntarily undertake it and agree to
accept the stipulated remuneration. If, therefore, one
(k) Wifiqet V. Fox (1856), 11 Ex. 832 ; 25 L. J. Ex. 188.
(0 Doiioran v. Lniii'/, Wharton, iVc, Const. Si/nd., [18U3] 1 Q. B. 629.
(m) Bartonshill Coal Co. v. litid (1858), 3 Macq. 266.
INJURY BY FELLOW SERVANT. 75
of them suffers from the wrongful act or carelessness of
another the master will not be responsible. This,
however, supposes that the master has secured proper
servants and proper machinery for the conduct of
the work. To constitute fellow-labourers within the
meaning of the doctrine which protects the master from
responsibility for injuries sustained by one servant
through the wrongful act or carelessness of another, it is
not necessary that the servant causing and the servant
sustaining the injury shall both be engaged in precisely
the same, or even similar acts. Thus the driver and
guard of a stage coach, the steersman and rowers of a
boat, the man who draws the red-hot iron from the
forge and those who hammer it into shape, the engine-
man and the switcher, the man who lets the miners
down into and who afterwards bring them up from the
mine and the miners themselves ; all these are fellow-
labourers or collaborateurs within the meaning of the
doctrine in question."
In another case (ii) against the same company, also
carried to the House of Lords, Lord Chelmsford, C, in
delivering their lordships' judgment, observed: "It is
necessary to ascertain whether the servants are fellow-
labourers in the same common work, because, although
a servant may be taken to have engaged to encounter
all risks which are incident to the service which he
undertakes, he cannot be expected to anticipate those
which may happen to him on occasions foreign to his
•employment. When, therefore, servants are engaged
in different departments of duty, an injury committed
by one servant on another by carelessness or negligence
in the course of his peculiar work is not within the
exception, and the master's liability attaches in that
case in the same manner as if the injured servant stood
in no such relation to him." There are numerous cases
(;i) Bartonshill Coal Co. v. McGitire (1858), 3 Macq. 307.
7G LIAT3ILITY OF MASTER FOR INJITRY TO HIS SERVANT.
whicli illustrate the last point referred to in this judg-
ment. Where, for example, a workman in the employ
of one railway company working on a siding which was
in the joint occupation of this and another company
was killed hy an engine of that other company running
on to the siding (through a defect in the rails), it was
held that his representative could recover under Lord
Campbell's Act (o) from the other company (^j). A
railway company has also been held hable for injury to
a porter of another company occasioned by one of their
own servants, both being employed at a railway station
jointly used by the two companies (q). And again, the
representatives of a signalman employed by one railway
company who was killed through the act of an engine-
driver of another company at a joint station of the two
companies recovered against the company employing
the said engine-driver (r) . And more recently, in the
important case of Johnson v. Lindsay (s) , certain builders
contracted with a landowner to build certain houses, the
contract providing that the defendants, a firm of iron
founders (selected by the landowner's architect), should
lay a fire-proof roofing on the houses, for which the
builders were to pay 213Z., and were also to provide
scaffolding and other assistance. The defendants
employed their own workmen. In the course of the
work the plaintiff, one of the builders' workmen, was
injured by the negfigence of one of the defendant's
workmen. The Court of x\ppeal {Fry, L.J., diss.) held
that the workmen were in common employment of the
builders, and therefore the plaintiff could not recover.
The House of Lords reversed the decision of the Court
(o) 9 & 10 Vict. c. 93.
(/>)• Vo.'<e V. LancoMhire Rail. Co. (1858), 27 L. J. Ex. 249; 4 Jur.
(N.s.)3fi4.
(7) Warharlon v. Great WeMern Rail. Co. (18G7), 30 L. J. Ex. 9;
15 L. T. 3(51.
(r) Swaiihson v. North- Ea.^lnii Rail. Co. (1878), 47 L. J. Q. B. 372.
{a) Johnson v. Lindsay, [1891J App. Cas. 371.
VOLUNTEEHS. 77
of Appeal, holding that since the relation of master and
servant did not exist between the respondents and the
appellant, the doctrine of collaborateur did not apply,
and the action was maintainable. The bearing of the
case of Wiggett v. Fox (referred to above, p. 74) and
how distinguishable was explained by Lord Herschell in
his judgment. The case of Johnson v. Lindsay has been
followed or approved on several occasions since {t) .
If two vessels belonging to the same owner and same
line, frequenting the same river and port, come into
collision, the master and crew of one vessel are not in
common employment with the master and crew of the
other {u) .
Upper and lower servants of the same master are in
common employment. A miner and the general
manager of the mine have been held to be fellow-
servants, and that even where the latter has been guilty
of the neghgence causing the injiuy before the former
entered the service of the common master {x) . The
chief and third engineers on board the same steamer are
fellow-servants {y), as also a builder's labourer and his
foreman {z). If, however, the superior servant has been
placed in a position of trust and authority, and the lower
servant directed to obey him, the master will be liable (a).
Volunteers. — If a person volimtarily assists a servant,
and whilst so doing is injured by the unauthorized
neghgent act of another competent servant of the same
master, he will place himself in the same position as
a servant, and will be unable to recover from the
(0 Cameron v. JSfystrom, [1893] App. Cas. 308 ; McCaUum v. Xorth
British) Rail. Co. (1893), 20 Ct. of Sess. Cas. 385 (Sc.) ; Hedky v.
Pinkney ci- tions, [1894] App. Cas. 222.
{u) The Petrd (1893), 62 L. J. C. P. 92; P. 230.
[x) Wilson V. Merry (1868), L. R. 1 Sc. Ap. 326.
(y) Searle v. Lindsay (1862), 31 L. J. C. P. 106.
(2) Gallaijher v. Pijjer (1864), 33 L. J. C. P. 329.
(a) O'lhjrne v. Burn (1854), 16 Sec. Ser. (Sc. Rep.) 1025. See also
Murphy v. Smith (1865), 12 L. T. 605 ; 19 C. B. (N.s.) 361 ; Ftltham v,
Enijland (1866), L. R. 2 Q. B. 33.
78 LIABILITY OF MASTER FOR INJURY TO HIS SERVANT.
master (6). In other words, a stranger by volunteering
his assistance cannot impose upon the master a greater
Hability than his own servant (c). But where a con-
signor or consignee of goods to a railway company
assists the stationmaster in sending off or in receiving
such goods they are not mere volunteers or licensees,
and are entitled to compensation from the company for
injury occurring to them when engaged on such work (d).
A bare licensee would have no such claim (e).
Employers' Liability Act, 1880. — The decisions on the
subject of common employment, to which attention
has been directed, caused much criticism and dis-
content from the workmen's point of view. Although
theoretically it might be said, as indeed it was said by
eminent judges upon the bench, that the servant need
not engage in the work unless he liked, and must be
taken to know very well the risks attending the occupa-
tion upon which he engaged, yet in actual practice the
servant often had really no choice, and certainly had
little or no voice in the selection of, and no control over
his fellow-workmen, by the negligence of whom he
might suffer injury (/). As a result the Employers'
Liability Act ig) was passed in the year 1880. This
statute enacts that the workman, or, in case of death,
his representatives, shall have the same rights of com-
pensation as a stranger in five specified cases, which
include any negligence on the part of any one acting
directly on behalf of the master, and railway signalmen
and engine-drivers (/O- This Act does not, tlicrefore,
finally dispose of the subject of common employment.
(h) Dean v. Midland Rail. Co. (1857), 26 L. J. Ex. 17L
c Potter V. Faulkner (1862), 31 L. J. Q. B. .30.
id) Holmes V. North- Ea-^tn-n Rail. Co. (1871), 4(» L. .1. I'.x. 121 ;
Wriitht V London and North- WeMcrn Rail. Co. (1875), 1 Ij. 13. I). 2.32.
(e) Hnlrh^lor v. Forfe.-«-ue (1883), 11 Q. B. I). 474.
( /■) I'ide Report of Solect Committee of House of Comnion.s (1S77) on
Kiiiplovers' Liability. {<j) 43 <& 44 Vict. c. 42.
(/t) Section 1, sub-ss. (1)— (5).
workmen's compensation act, 1897. 79
As regards an ordinary fellow-servant the law remains
what it was before the passing of the Act, and the
outlines of which have been briefly explained in the
preceding pages. Moreover, the workman may contract
himself out of the Act (i). Section 8 of the Act defines
the particular class of servants to whom it applies by
saying that "workman" means a railway servant and
any person to whom the Employers and Workmen Act,
1875 {k), applies, i.e., any labom-er, servant in industry,
journeyman, artificer, handicraftsman, miner, or any
one otherwise engaged in manual labour. It will be
seen, therefore, that the Act does not include domestic
or menial servants, nor clerks ; and a number of cases
have arisen in which it has been a question in dispute
whether persons engaged in certain occupations are
included in the Act as being embraced by the descrip-
tion " otherwise engaged in manual labour." It has
been held that an omnibus conductor (/) is not included
in this description ; that a grocer's shop assistant (m) is
not engaged in manual labour. Also, that the guard of
a goods train who assisted in coupling and uncoupling
trucks is not a workman as defined by the Employers
and Workmen Act, 1875, and, therefore, is not a person
to whom the Employers' Liability Act applies [n) .
Workmen's Compensation Act, 1897. — It is anticipated
that the Act for compensating workmen injured by
accidents just passed through Parliament, although
not repealing it, will largely replace the Employers'
Liability Act.
The text of this new Act icill he found in tJie Appendix.
(i) Grifiith v. Earl Dudley (1882), ol L. J. Q. B. 5-43.
(k) 38 & 39 Vict. c. 90, s. 10.
(/) Morf/an v. London General Omnibus Co. (1884), 13 Q. B. I). 83-2.
[m) Bound v. Lawrence (1892), 61 L. J. M. C. 21 ; 56 J. P. 118.
(«) Hunt V. Great Northern Rail Co. (No. 1), [1891J 1 g. B. 601 ;
60 L. J. Q. B. 216.
( 80 )
CHAPTER VIII.
Liability of the Master to Third Parties for
THE Torts of his Servant.
1. Generally. — That one who acts through the
mediation of another is responsible for the latter's acts
in relation to third persons is an old and deep-seated
principle of law expressed by the maxim adopted from
the Roman Law of Qui facit per ahum, facit x>cr se.
But inasmuch as it is impossible in many instances for
a stranger to kncnv how far a servant is acting under
the orders of his master, and it would be very unjust to
make the remedy of a third party dependent upon the
interested testimony of the impHcated parties, the law
has gone further, and laid down what may now be
taken to be a general rule of law, viz., that a master is
responsible for every act of his servant done in the
ordinary course of his emplopnent, and this though the
servant may be acting contrary to express orders, if
the act is one which it might be reasonably presumed
the servant as such would have authority to do. This
responsibility is not altered if the servant act negligently
or injudiciously. Moreover, if the master be absent
and the act illegal the master is responsible if the act is
within the scope of the servant's authority and done for
the master's benefit.
This general rule is illustrated by the following
cases: — As far back as 1677 a master was held liable for
damage caused by his horses, which were being driven
i)y his servants in Lincoln's Inn Fields (o). A servant
having made a fire on his master's land, and neglecting
(o) Michael v. Akatret (1G77), 2 Lcvinz. 172.
TORTS OF SERVANTS. 81
to take proper precautions, set fire to corn on a neigh-
bour's close, his master was held liable for the damage
so caused {p) . A pawnbroker is liable for a pledge lost
by his servant {q) . An innkeeper is liable for injury to
his customer's horse and gig through the carelessness
of his ostler {r) . Where the owner of a boat, which was
accustomed to ply for hire and to carry passengers
across a haven, employed a servant for that purpose,
and the servant on one occasion received a passenger on
board, and carried him across the haven near the line of
an ancient ferry, and paid the fare over to his master,
it was held that the servant was acting at the time in
the course of his master's service and for his master's
benefit, and that the master was answerable for his act,
and would have been liable for such act if it had been
distinctly proved to have amounted to an invasion of
the ferry (s) . A coal merchant is liable for injury to a
foot passenger due to his carman leaving a coal shoot
open it) . Where the carriages of a plaintiff and
defendant had become entangled, and the defendant's
coachman, in order to extricate his master's carriage,
whipped the horses in that of the plaintiff and thereby
occasioned an injury, the defendant was held liable for
the consequences {u) . The owner of the barge was
liable for injury due to the negligent management of
two qualified men hired to navigate it, for they were
considered to be his servants {x).
The servant need not be in the immediate employment
of the master to make the latter liable. This was
clearly put by Littledale, J., in the case of Laugher v.
{p) Tnrhevillev. Stamp (Hi!)?), 1 Salk. 13.
(7) Jone-^ V. Hart (1698), 2 iSalk. 441.
(r) Bather v. Dmj (1863), 32 L. J. Ex. 171.
(.s) H>tzzcy V. Field (183.5), 2 C. M. & R. 432.
(t) Whitdey v. Feppej- (1877), 46 L. J. Q. B. 436.
(?«) Croft V. Alison (1821), 4 B. & Ad. 590.
(x) Martin v. Temperky (1843), 4 Q. B. 298.
M. & S. G
82 LIABILITY OF MASTER TO THIRD PARTIES.
Pointer (y) , when he pointed out how the owner of a
ship is hable for acts of the crew altliough appointed
by the master, the owner of a farm in Hke mamier for
the farm labourers hired by his baihff or hind, or a mine
owner (z) for the worlanen engaged by his steward or
manager. This principle was carried to an extreme in
the case of Bush v. Steinman (a), which has not since
been regarded with favour, or held binding. In that
case A., having a house by the roadside, contracted with
B. to repair it for a stipulated sum ; B. contracted
with C. to do the work ; and C. with D. to furnish
the materials. The servant of D. brought a quantity of
lime to the house and placed it in the road, by which
the plaintiff's carriage was overturned. It was decided
that A. was answerable for the damage sustained.
Liability of contractors. — This naturally leads to the
question of how far a person emplo3ang a contractor is
liable for the acts of the workmen employed by the
contractor. As a general principle, persons employing
a contractor are not responsible for the acts of his
servants. " I apprehend it to be a clear rule," said
Willis, J., in Murray v. CurrieQj), "in ascertaining
who is liable for the act of a wrong doer, that you must
look to the wrong doer himself, or to the first person in
the ascending line who is the employer and has the
control of the work. You cannot go further back and
make the employer of that person liable."
The test of a person's liability for the acts of the
servants of a contractor he employs is, therefore,
whether he has parted with the whole control of the
work. For example, the buyer of a bullock employed
a licensed drover to drive it from Smithfield, and by the
((/) Lavgher v. Poin/or (1826), .'5 B. & C. 5.54.
(z) Stone V. Cartn-riijlit (IT!).")), 0 T. R. 41 1.
(a) IhL.ih V. Steinman (1799), 1 B. & V. 404.
(6) Murray v. Currk (1871), 40 L. J. C. P. 26.
WHEN CONTEACTORS NOT LIABLE. 83
b5^e-laws a licence was necessary for such employment.
The drover employed a boy to drive the bullock together
with others, the property of different persons. Through
the careless driving of the boy damage was caused by
the bullock. The buyer of the bullock was not liable,
for the drover was here following an independent
emplopnent, and was not the servant of the person who
engaged him (c) . A builder was not liable for injury
due to an explosion of gas arising from the carelessness
of a gas fitter with whom he had made a sub-contract
to put up certain gas fittings {cT) . Again, a railway
company agreed v^th a firm of contractors to build part
of their line. Through the carelessness of one of the
contractor's workmen a stone fell on a person passing
under a bridge and killed him. Notwithstanding that
by the terms of the agreement the company was to
have a general right of superintending the progress of
the work, and if the contractors employed incompetent
workmen the power to dismiss them, the court was of
opinion that the workmen were not thereby made the
servants of the company, and the company was, therefore,
not responsible for the injury (e) .
When contractors not liable. — Under exceptional
circumstances however, the person employing the con-
tractor may be liable, e.g. :
(a.) If the contractor is employed to do an unlawful
act. This is illustrated by a case in which a registered
joint-stock company contracted with a contractor, W.,
for the laying of their main gas pipes in the streets of
Sheffield, though having no special power for tiiat
purpose. The servants of W. left a heap of earth and
(c) MiUigan v. Wedrje (1840), 12 A. & E. 737 j 1 Q. B. 714.
(d) Bapson v. Cithift (1842), 9 M. & W. 760.
(e) Beedie v. London and Xorth- Western Bail. Co. (1849), 20 L. J.
Ex. 65 ; 4 Ex. 244 ; see also Overtonv. Freeman (1852), 21 L. J. C, P. 52 ;
16 Jur. 65; Foreman v. Maijor of Canterbury (1871), 40 L. J. Q. B. 138.
84 LIABILITY OF MASTER TO THIRD PARTIES .
stones whic-li li;ul Ix'cn tlirowii out of tlie trenches tlii*]^
for receiving the pipes in one of the streets. The
phiintiff, who in passing along, tumbled over it and was
injured, brought an action against the company and
was successful (/).
(b.) If the work to he executed is such that in the
natural course of things injurious consequences must he
expected to arise, unless means are adopted by which
such consequences may be prevented, and the employer
does not take precautions to prevent the mischief (g).
(c.) If the employer is under an ohligation either hij
statute, or by common law to do a thing efficiently. So
that where a railway company being empowered by an
Act of Parhament to construct a bridge over a navigable
river, but with the proviso that it should be opened
within a certain time for the passage of vessels, and the
contractors so constructed the bridge that it would not
open, the railway company was held liable (li).
(d.) // tlic employer ■perso)uilhi interferes u-ith the
ivork. The owner of some newly built houses employed
to make a drain a contractor who left on the road a heap
of gravel which caused injury to a person driving by.
Previously, on complaint being made, the owner had
promised to remove the gravel, and had instructed a
man to do so, and he was therefore held liable because
it was not clear that the contractor had undertaken to
remove the gravel, and he (the owner) had busied
himself about it (i).
2. Liability when servant not immediate cause of
injury. — The master may be liable when the immediate
( /■) Ellis V. Shcflleld fla-x Co. (1854), 53 L. J. (.,>. 15. 45.
(V) Bower V. Ftate (1876), 45 L. J. Q. B. 446; 1 Q. B. 1). 321 ; .see
also J'irkardv. Smith (1861), 4 L. T. (N.s.) 470 ; Tarry v. Ashton (1876),
1 Q. B. D. 314.
(h) Hole V. SiUinqhonrne Rail. Co. (1861), 30 L. J. Ex. 81 ; see also
Gray v. Pidlen (1865), 34 L. J. Q. B. 265.
(i) Bur<jtii.f V. Cray (1845), 64 L. J. C. P. 184 ; 6 C. B. 378.
SEEVANT ACTS CONTRARY TO ORDERS. 00
cause of the injury is not the act of the servant, but
that of a third person, made possible by the negHgence
of the servant. The case of Illidge v. Goodwin (k), is
a good iUustration of this. Here a master scavenger
was held liable for damages done by his horse and cart,
due to a passer-by havin truck the horse whilst his
servant had left it unattended. And in a very recent
case (/) it was laid down that there is no rule of law to
prevent a master being liable for the negligence of his
servant, whereby opportunity was given for a third
person to commit a wrongful or negligent act imme-
diately producing the damage complained of. Whether
the original negligence was an effective cause of the
damage is a question of fact in each case, In this
particular case the defendant employed a man to drive
a cart, with instructions not to leave it, and a lad,
who had nothing to do with the driving, to go in
the cart and deliver parcels to the customers. The
driver left the cart, leaving the boy in charge of it,
to go into a house. While the driver was absent the
lad drove on and came into collision with the plaintiff's
carriage. The defendant was held liable on the ground
that the effective cause of the damage was the negli-
gence of the driver in leaving the cart in the way he did.
3. Liability when servant acts contrary to orders. —
A master may be liable for the acts of his servant
though they are not necessary for the proper perfor-
mance of his work, or are even contrary to the express
orders of his master. Two carriages became entangled
and the coachman of one of them whipped the horses
in the other in order to extricate his master's carriage,
and thereby caused injury. His master was held
{k) Illidge V. Goodwill (1831), 1 C. & P. 190.
(/) Enijdhart v. Farrant and others, [1897] 1 Q. B. 240 ; but see Mann
V. Ward (1892), 8 T. L. R. 699; where a cab owner was held not
liable for injuries caused by his cab being driven by some one, not his
servant, when the latter was inside the cab drunii.
8G LI.VBILITY OF JLVSTEK TO TIIIKD PARTIES.
liable (w). An omnibus company is responsible for
injuiies arising from their drivers acting recklessly and
improperly, though in so doing tliey may be acting in
direct disobedience to the regulations of the company («) .
The principle on which these decisions are based was
stated in the case of Fatten v. liea (o), in which it was
laid down that " in an action for damages done by the
negligent driving of a servant, the proper question to
leave to the jury is — whether, at the time of the act
complained of, the servant was driving on his master's
business, and with his authority." In some instances
however, it becomes a nice question, how far the ser-
vant can be regarded as being on his master's business,
and thereby bringing his master within the rule just
stated. Where a servant made a detour to call upon a
friend whilst driving on his master's business (p), or
drove out of his way to deliver a parcel of his own (q),
or again, a carman, contrary to orders, leaving his
horses and cart unattended whilst he went home to
dinner, in consequence of which they ran away and
caused damage (r) : in all these cases the master was
held liable. But the master was reUeved of responsibility
for injury caused by his driver when he had started on
an entirely independent journey after returning to his
master's house (s) ; and also where a wine merchant's
carman and clerk after delivering goods at Blacklieath,
were ordered to bring back empty bottles to the office at
the Minories, and on the way back after crossing
London Bridge, they went o(T in quite the opposite
(m) Croft V. Ah\-on (1S'21), 4 B. & Ad. 590.
(«) Limpns v. Lowloii (Uatral, Omiiihii-s Co. (1863), 32 L. J. Ex. 34 ;
Ward V. London Orncra/ Onuiihiis Co. (1873), 42 L. J. C. P. 265.
(o) Patten v. Bea (1857), 26 L. J. C. P. 235.
(p) Joel V. iMori.'^on (183G), 6 C. & P. 501.
(q) Slealhv. WU.son (1839), 9 C. & P. 612; sec also the reniark.s of
Cn.Ks.s\VEiA, J., in Brown v. Coplei/ (1844), 7 M. & O. 566.
(r) IVhatmaii v. Pearson (1858),' L. R. 3 C. P. 422.
(.y) Mitchell v. Crasswdkr (1853), 13 C. B. 237-
CRIMINAL ACTS OF SERVANT. 87
direction to that leading to the office, on some private
errand of the clerk's, and whilst on this enteqmse, ran
over a child {t). The distinction between this last case
and that of Joel v. Morison (jj) is, to say the least of
it, a fine one.
A master as bailee for hire, is liable for the negligence
of his servant. This was decided in a case (u) where a
master hired a carriage and horses which his servant
drove, and instead of driving, as he should have done,
direct back to the stable, drove off elsewhere on his own
account, and whilst so doing caused the horses injury.
A master has even been held liable for injury resulting
from the drunkenness of a servant not in his regular
employ, and engaged by his sister who w^as managing
the business in his absence (x).
i. Master may be civilly liable for criminal acts of
his servant. — e.g., fraud. A goldsmith makes plate
wherein he mingles dross, so that it was not according
to the standard, and sent his servant to a fair to
sell it according to the standard. The master was
held responsible (?/). A sheriff has been held liable
for the fraud of his officer (z) ; an attorney for that
of his clerk (a) ; a tramway company for an assault
by a conductor on a passenger in the course of his
employment (b) ; a banking company for that of their
manager (c). The principle of these decisions was
explained by Willis, J., in giving judgment in the last
case. " But with respect to the question," said the
(0 Storey v. Ashton (1869), 38 L. J. Q. B. 223 ; 4 Q. B. 476.
(a) Coup6 Co. V. Maddick, [1891] 2 Q. B. 413.
(x) WanMall v. Poohij (1841), 6 CI. & Fin. 910 (n).
(>/) SoKfheni v. How (1618), Cro. Jac. 471 ; Cf. Hern v. Xlchols (1109),
1 Salk. 288.
(z) Raphael v. Goodman (1835), 8 B. & E. 565.
(a) Dunkleij v. Ferris (1851), 11 C. B. 457.
(h) Smith V. North Metropolitan Tramways Go. (1891), 55 J. P. 630;
7 T. L. R. 459.
(c) Barwick v. Eajlish Joint Stock Bank (1867), 36 L. J. Ex. 147.
88 LIABILITY OF MASTER TO THIRD PARTIES.
learned judge, " whether a principal is answerable for
the acts of his agent done in the course of his master's
business, and for the master's benefit, no sensible
distinction can be drawn between the case of fraud and
that of any other wrong, as to which the general rule is
that the master is answerable for such wrong, if com-
mitted in the course of his service and for his benefit
. . . In all these cases it may be said, as it was
said here, that the master has not authorized the act.
It is true he has not authorized the particular act, but
he has put his agent in his place as to a class of acts,
and he must be answerable for the manner in which
the agent conducts himself, in doing his business." A
furniture dealer was held liable for the acts of his
manager, who, having committed an assault, was con-
victed, and the release thereby of the servant under
24 & 25 Vict. c. 100, s. 45, from civil proceedings did
not free the master from liability (d). Th master
will not, however, be liable if his servant in carrying
out his orders act illegally, when the purpose of his
employment could be done in a lawful manner (e) . It
has been decided, for example, that a company is not
responsible for an assault committed by the broker or
his assistant when executing the warrant for recovery
of arrears by distress, or sale of one of their customer's
goods (/).
A master is liable for a trespass by his servant if
connnitted by his command (g), or if it be the necessary
consequence of something the master has ordered to be
done (/i).
(d) Di/erx. Munday, [1895] 1 Q. B. 742.
(e) W'ilsoa v. Rankin (18()5), 34 L. J. Q. B. 67.
(/) Rirhard-s v. West Middlesex Water Co. (1886), 15 Q. B. D. 660;
.see also PouUon v. London and South- Western Rail. Go. (1867), 36 L. J.
Q. B. 294.
(()) Morlni V. Gnisford (1795), 2 H. Bl. 441.
(h) Greipry v. Piper (1829), 9 B. & C. 591 ; Lyom v. Martin (1838),
8 A. & E."512.
PROPRIETORS OF PUBLIC CONVEYANCE. 89
5. Liability of proprietors of public conveyances. —
The proprietors of piiLlic conveyances arc responsible
for accidents caused not only as the result of negligence,
but also for those due to want of judgment or skill on
the part of their servants (i). "Every person," said
Lord Ellenhorough, in Jackson v. Tollett ij), "who
contracts for the conveyance of others is bound to use
the utmost care and skill, and if through any erroneous
judgment on his part any mischief is occasioned, he
must answer for the consequences .... in order
to subject the master to damages, it must appear that
there has been something to blame on the part of his
servant, and he is blameable if he has not exercised the
best and soundest judgment upon the subject ; if he
could have exercised a better judgment than he did,
the owner is liable." The liability here referred to of
the carriers of passengers is quite distinct from that
of the carriers of goods. The latter are liable in all
events save those due to the act of God or to the
King's enemies. The former is not liable in case of
accident (k) . A railway company was held liable where
a passenger on arriving at the station at which he
intended to stop, entrusted his luggage to a servant of
the company to be placed on a cab and the luggage was-
lost (l). And again a railway company was responsible
for the negligence of their porter with whom luggage
was left for ten minutes by a passenger whilst he went
to take his ticket, and on coming back found it gone.
The court was of opinion that the luggage being in the
porter's hands for the purpose of transit, he was acting
(i) Mayheiv v. Boyre (1816), 1 Stark. 423; Jackson y. Tollett {\S\7),
2 Stark. 38 ; Ihjtman v. Xye (1888), 6 Q. B. D. 635, Lindley, J.
(k) Crofts V. Waterkouse (IS25), 3 Bing. 321; Bedhead v. Midlnnd,
Rail. Co. (1869), 38 L. J. Q. B. 169; Cf. Manzoni v. Vongla,s (1880),
6 Q. B. D. 145.
(I) Birhards v. London, Briyhton, and South Coast Bail. Go. (1847),
7 C. B. Rep. 839.
90 LIABILITY OF MASTER TO THIBD PARTIES.
witliin the scope of his employment in undertaking the
charge of it {))i). On the other hand, where, after
leaving his luggage with a porter, the passenger left
the station for an hour, the railway company was
absolved from responsibility. It was said that here the .
luggage was watched by the porter on his own respon-
sibility («). If a railway company issues a through
ticket available beyond its own system, and accident or
loss occurs on another line over which the through
journey passes, the company is liable (o). This only
applies, however, to accidents due directly to the other
company, and not to collateral operations (j?). A
servant travelling with his master by railway lost his
luggage during the journey; the fact that his ticket had
been taken by his master was no objection to his suing
the company (q) . A carrier is not liable for the loss of
goods which have been entrusted to his sers^ants to be
carried by them for their own private gain (;•)•
6. Liability of innkeepers. — Innkeepers are responsible
for the loss of the property of their guests due to their
servant's negligence, unless the guest contributed by his
negligence to the loss (s). The amount recoverable
may be limited by statute (f) to SOI. An innkeeper is
hable for larceny by his servant of a guest's property (u).
Lodging-house keepers, on the other hand, are not
liable for the dishonesty of their servants, if there is no
(m) Berqheimx. Soulh-Ea^stern nail. Co. (1S86), 17 Q. B. D. 21.-).
(70 W</rh V. Loudon ami Xorth- Wrslmi Hail. Co. (1880), 34 W. R. 106.
(o) BirkM v. Whitehaven .Juiirfion Bail. Co. (1859), 28 L. J. Kx. 348 ;
Mi/f/oH V. Midland Bail. Co. (1859), 28 L. J. Ex. 385; Thonms v.
Bh>/mnei/ Bail. Co. (1871), 40 L. J. Q. B. 89.
(p) Wriqhl V. Midland Bail. Co. (1873), 42 L. .J. Ex. 89 ; 29 L. T. 436.
{q) Marshall v. York N. and B. Hail. Co. (1852), 21 L. J. C. P. 34.
(r) Btdler v. Ba-sinq (1827), 2 C. k P. 613.
(«) Medawar v. Grand Ilotd Co., [1891] 2 Q. B. 11; Ilnntly v.
Bedford Hotel Co. (1892), 56 J. P. 55.
(0 20 & 27 Vict. f. 41, s. 3.
(«) Kent V. Shiirkard (1H31), 2 B. & Ad. 803 ; Oppenhcim v. WliiU
Lion Hotel Co. (1871), 40 L. J. C. P. 93.
WHEN MASTER NOT LIABLE. 91
misfeasance on their part {x). But it is doubtful how
far a lodging house keeper is responsible for the negli-
gence of his servants. The court was equally divided
in the case of Da?isey v. Bichardson (?/), where the
plaintiff lost a box, through the door being left open by
a servant whilst on an errand on behalf of the plaintiff.
Although divided as to the Hability of the lodging-house
keeper, the whole court were of opinion " that at least
it was the duty of the defendant to take such care of
her house and the things of her guests in it as every
prudent householder would take."
7. Liability of corporations and trustees. — Corpora-
tions are subject to the same liability in regard to their
servants as private individuals, unless there is some
exemption on their behalf express or implied. Trustees
appointed by statute for public purposes to levy toll,
and deriving no personal benefit, are Hable in their
corporate capacity for damage sustained by default of
their servants, to the same extent as absolute owners
levying toll for their own benefit (~) .
8. When master not liable. — It may now be useful
to consider and endeavour to summarize those con-
ditions in which it has been decided that the master is
not Hable for the acts of his servants.
(a.) If servant act outside the scoj^e of his authority,
and in so doing by his negligence cause injury. It is
often a very nice question whether a servant is or is not
acting witliin the scope of his authority. The dividing
line is a very fine one. Consequently it is a point
which has often been raised in the courts. In light of
the decisions it is practically impossible to lay down
any guiding principle. Each case must be decided
{x) Holder v. Sonlhy (1860), 29 L. J. C. V. 246.
(y) Dansey v. Richardson (18.->4), 23 L. J. Q. B. 217 ; ?> E. & B. 144.
(z) Mersey Docks and JIarhour Boardy. Gihb.-! (1865), 35 L. J. Ex. 225.
9-2 IJAliirJTY OF MASTER TO THIRD PARTIES.
according to its own peculiar circumstances. A servant
whose duty it was to keep good fires thought it desirable
to clean the chimneys by a method of her own which
consists in making a large fire of furze and straw. A
much greater conflagration was caused than she
anticipated, resulting in the next house being burnt
down. Her master was held not liable for the damage
done, on the ground that the servant had acted quite
outside her duty and beyond the scope of any authority
given her (a) . A servant is acting outside the scope of
his authority if he do an unlawful act not authorized by
his master (6). Where a servant returning from his
master's business drove in a direction contrary to his
proper course home in order to do some business of his
own, or, as Lord Wensleydale put it in another case, on
some frolic of his own, the master was absolved from
liability for injury then caused (c). A station-master
wrongly arrested a passenger on the ground that he had
not taken a ticket for his horse. The railway company
successfully defended an action against them by the
passenger for false imprisonment on the plea that
the station-master could have no authority to act as he
had done {d). After his master had left, a clerk went
into his private room and used the lavatory. Having
done so he forgot to turn off the tap and in consequence
the water passed through the floor and injured the
stock of a bookseller who had his shop underneath.
The bookseller failed in his action against the master
for compensation because his clerk had acted outside
the scope of his authority in using the lavatory (e). It
(a) MrKenzie v. MrLcod (1834), 10 Bing. 385.
(//) Li/ou.s V. M(u-li>i (1838), 8 A. & E. 512; RirhardH v. WeM
Mi,ldl<s,'x Water Co. (1885), 15 Q. B. I). 660.
(r) Ston/ V. AshtoH. (18G9), L. R. 4 Q. B. 476 ; see also Mitchtll v.
Crax-iireller (1853), 13 C. B. 237.
(d) Poultonv. L. .C- .S'. W. /.'. Co. (1867), 36 L. J. Q. B. 294.
(fi) S/ereti.'< v. Woodward (l^i^l), 6 Q. B. D. 318 ; Cf. Ruddimaii v.
Smith (1891), 53 J. P. .528 ; 60 L. T. 708.
WHEN MASTER NOT LIABLE. 93
has been decided that a railway porter who takes charge
of a passenger's luggage for an hour whilst the passen-
ger goes away altogether from the station is not acting
within the scope of his authority (/). A shopkeeper is
not responsible for injury due to the careless driving of
his shopman, for it is not within his duty to drive the
van {g). A tram conductor gave a passenger into
custody on a charge of passing bad money. Special
instructions had been issued to conductors not to give
into custody without the authority of the inspector
or time keeper for any cause other than assault. The
passenger brought an action against the company for
false imprisonment, but failed on the ground that the
conductor was acting beyond the scope of his
<authority (li). Again a tramway company was em-
powered to exclude the public, and anyone obstructing
their servants was liable to a fine. One of their
servants forcibly prevented from entering the tramcar
a person who w'as in consequence arrested. The
company was not liable, for the matter was not within
the scope of the conductor's authority (/).
The proprietor of a public house was held not liable
for the conduct of a person who whilst acting as manager
of the bar in his absence gave into custody a customer on
the charge of attempting to pass false money, the arrest
taking place after the customer had left the house, and
when his master's property was no longer in danger (A').
A travelling railway ticket examiner W' as acting within
the scope of his authority in giving into custody a
season ticket holder, for the passenger on bringing an
( /•) WeUh V. L. cl-N. W. R. Co. (1886), 34 W. R. 106; Cf. Beryhelm v.
S. E. R. Co. (1886), 17 Q. B. D. 215.
(r/) Martin v. Ward (1887), C. & S. Cas. 814.
('/() Charleston, v. London Tram. Co. (1888), 86 W. R. 367. Cf.
Fnrlonij v. South London Tram Co. (1885), 48 J. P. 322.
(/) Barry v. DnUin Tram. Co. (18!)0), 26 L. R. Ir. 150.
(k) Abraham.'< V. Deakin, [1891] 1 Q. B. 586 ; Cf. Sturm v. Jlin-shd-
vfoofZ (1891), 55 J. P. 341.
94 LIABILITY OF :MASTER TO THIRD PARTIES.
action for false imprisonment recovered 50^. from the
railway company (Z). And Messrs. Spiers and Pond
have been held responsible for the act of the manager
of one of theii' restaurants in giving into custody
persons acting in a riotous manner, for the manager
had authority to do this in virtue of his position, and
his employers were liable for the wrongful exercise of
it (m) . Between the rehearsal and a concert a musical
instrument was left by one of the performers in an
ante-room of the hall hired for the concert. During the
interval the instrument was moved by the hall-keeper
and mjured. The society ovraing the hall was held not
responsible, for it was not wnthin the scope of the hall-
keeper's employment to take charge of the instru-
ments («) . An accident was caused through a horse
being frightened by a band of the Salvation Army. An
action for damages was consequently brought against
the acknowledged head of that organization. General
Booth, with however little advantage, for the court
decided that there was not sufficient evidence to show
that the players of the band were acting under his
authority (o). In a recent case a policeman thinking
the driver of an omnibus drunk stopped him when a
quarter of a mile from the yard. The driver and
conductor then authorized a stranger to drive the
omnibus, and whilst he was so doing caused injury to
the plaintiff. It was decided on appeal, reversing the
decision of the Divisional Court, that the servants of the
company were not acting within the scope of their
authority in so appointing a driver. The facts in the
case did not support the contention that there was a
necessity for delegating someone to drive the omnibus.
(I) Mn/Lrn v. Metropolitan Rail. Co. (189-2), 8 T. L. R. 232; see also
Lour V. (I. N. R. Co. (1893), 62 L. J. Q. B. 524.
(m) A.slUon v. Siiier.s .i: Pond (1893), T. L. R. 606.
(n) Nenwilli v. Ore.r Darwen Indnst. Sor. (1894), G3 L. J. Q. B. 290.
(o) London Central Omnibua Co. v. Booth (1894), 63 L. J. Q. B. 244.
WHEN MASTER NOT LIABLE. 95-
liOrdUsJier, M.K., in his judgment, pointed out that the
doctrine of authority by necessity is confined to certain
well-known exceptional cases, as the master of a ship,
or the acceptor of a bill of exchange for honour of the
drawer (jp). A fortiori the master will not be liable if
the servant act maHciously without orders from his
master. A master, for example, was not responsible for
injm-y caused owing to his servant maliciously driving
his carriage against another person's chaise (q).
(b.) If the servant act illegally in doing tchat could
be done in a lawful manner, as by committing an
assault when trying to recover property or executing
the warrant for recovery of arrears by distress (r) .
(c.) If the third party ojnit to use ordinary care.
The law on this point was explained by Lord Wensley-
dale in Bridge v. Grand Junction Rail. Co. (s), which
was an action brought by a passenger of one train
against the company owning another Avhich had run
into colhsion with it. " The rule of law," he said, " is
laid down with perfect correctness in the case of
Butterfield v. Forrester [t), and that rule is that, although
there may have been negligence on the part of the
plaintiff, yet unless he might by the exercise of ordinary
care have avoided the consequences of the defendants'
neghgence, he is entitled to recover; if by ordinary
care he might have avoided them, he is the author of
his own wrong." And in another case («) it was
said, " The proper question for the jury to consider in
cases of this kind is whether the damage was occasioned
entirely by the neghgence or improper conduct of the
(p) Ginlliam v. Twist, [1895] 2 Q. B. 84 ; 59 J. P. 414.
(q) McManus v. Crickett (1800), 1 East. 106 ; but see Chandler v.
Broiic/hfon (1832), 1 C. & M. 29.
{r)^ Dyer v. Munday, [1895] 1 Q. B. 742 ; Rirhnrds v. W. Mid. Water
Co. (1885), 15 Q. B. D. 660 ; Wilwn v. /?aH/.m(1865), 34 L. J. Q. B. 62.
(.v) Bridge v. Grand Junction Rail. Co. (1838), 3 M. & W. 244.
\t) Butterfield v. Forrester (1859), 11 East. 60; see also Davis v.
Manv (1842), 10 M. & W. .540.
(m) Ttiffw. Warmau (1858), 27 L. J. C. P. 322 ; i^er WiCxHtman, J.
9(5 LIABILITY OF MASTER TO THIRD PARTIES.
defendant, or whether the plaintiff himself so far
contributed to the misfortune by his own negligence or
want of ordinary and common care and caution, that
but for such negligence or want of care and caution on
his part the misfortune w^ould not have happened. In
the first case the plaintiff would be entitled to recover,
in the latter not, because but for his own misconduct
the misfortune would not have happened."
(d.) If a servant commit a trespass without orders,
as, for example, when a servant drives his master's
carriage into a chaise and injures it {x). If, however,
the master were present at the time he would hardly be
absolved from responsibility though the servant acted
without orders from him (//) .
(e.) If the master has parted loitli the whole contrul
of the servant as in the case of contractors {z).
(f.) If the master is obliged by statute to employ a
particular servant. The best example of this is the
compulsory employment of p^^'^ots under the Merchant
Shipping Act, 1894 (a). It was formerly held (b) that
even if the pilot was not compulsory, yet if being taken
on board and in control of the ship, the master would
not be liable. This, however, in the light of more recent
decisions cannot now be held to be the law. The
important judgment of Sir J. Colville in T]ie Velasquez (c)
lays down emphatically that the pilot must be wholly
responsible. If it can be shown that any act of the
master or crew contributed to the accident liability will
ensue. " It has been established " he says " by a long
(.f) MvManus v. Criclcett (1800), 1 East. 106; Cf. Sharrod v.
L.dN. \V. R. Co. (1849), 4 Ex. 580; Boe v. Birkenhead Rail. Co.
(18rv2),21 L. J. Ex. 9.
(y) Chand/er v. nromjhton {1S;«), 1 C. & M. 29. (z) Soe pp. 82—84.
(a) ')() & 57 Viut. c. 60, a. 68:i.
{!>) Lncty v. Inuram (1840), 3 M. & W. 302.
(r) The Velasquez (1867), 36 L. J. Ad. 19; lIammoi)d v. /.V/flns- (1850),
7 Moore P. C. C. 160; The Lion (1869), 38 L. J. Ad. 57. ; the Earl of
Auckland (1861), 30 L. J. Ad. 124 ; Hanna (1867), 36 L. J. Ad. 1.
SUPERIOR PUBLIC OFFICERS. 97
course of decisions that to entitle the owner of a ship
which is under the charge of a hcensed pilot, to the
benefit of the provisions of the Act which exempts them
from liability when the collision has been occasioned
by the fault of the pilot, it lies upon them to prove that
it was caused solely by his fault."
The master is not however relieved from responsibility
if he is obliged to employ a member of a particular class,
as for instance where freemen or apprentices to freemen
of the Watermen and Lightermen's Co. must by
statute (cZ) be employed to navigate on the Thames.
In such a case the men employed are none the less the
servants of those hiring them (e).
(g.) Superior public officers are not liable for the acts
of their inferiors. A Postmaster-General, for instance,
is not responsible for loss of letters by postmen or
others under him (/). Similarly the captain of a sloop
of war was held not answerable for damage done by her
running down another vessel, the mischief appearing to
have been done dmnng the watch of the lieutenant who
was upon deck, and had the actual direction and
management of the steering and navigating of the sloop
at the time, and when the captain was not on deck nor
was called by his duty to be there {g) .
This principle does not apply to the private servants
of such officers (h).
(h.) A master is not liable for the tortious acts of a
servant lent to another person, if such acts are com-
mitted whilst in the service of that person (i).
{d) 22 & 23 Vict. c. 123.
(e) 3Iart{n v. Temper/ei/ (1843), 4 Q. B. 298.
(/) Lane v. Cotton. (1701), Lord Raymond, 646; Wliitfield v. Lord
Lt Deipencer (1778) Com^. 754.
{g) Nicholson v. Moiinsey and Si/tne^ (1812), 15 East. 384.
(h) Lord North's case (1858), Dyer 161.
(i) Ronrke v. White Moss Colliery Co. (1877), 46 L. J. C. P. 283 ;
see also Donovan v. Laing, [1893] 1 Q. B. 629 ; Johnson v. Lindsay,
[1891] A. C. 371 ; Cameron v. Nystroni, [1893] A. C. 308.
M. & S. • H
98 LIABILITY OF MASTER TO THIRD PARTIES.
(i.) Telegraph companies are not liable for loss
suffered through telegrams being wrongly sent, owing
to the negligence of their clerks (k) .
Who is the master. — There has been great difficulty
in some cases in deciding who is the master. This has
arisen especially with respect to the party responsible
for injury or damage due to the negligence of a coach-
man sent out by a job-master, with horses to draw the
hirer's carriage. In an old case four horses and
postillions were hired to draw a private carriage to
Windsor. On the way down they turned over a chaise
with the result that the occupant had his collar-bone
broken. An action brought to fix the responsibility on
the owner of the carriage was unsuccessful, and the
owner of the horses was held liable {D . But in another
case where the owner of a carriage hired of a stable-
keeper a pair of horses to draw it for a day, and the
owner of the horses provided a driver, through whose
negligent driving an injury was done to a horse belong-
ing to a third person, the court was equally divided in
opinion as to whether the owner of the carriage was or
was not hable for the injury {m). This question was,
however, settled in a case («) which has since been
regarded as the authority upon the subject. The facts
of this case were as follows : The owners of a carriage
were in the habit of hiring horses from the same person,
to draw it for a day on a drive, and the owner of the
horses provided a driver through whose neghgcnce an
injury was done to another person. The owners of the
carriage had always been driven by the same driver, he
being the only regular coachman in the employ of the
owner of the horses ; they had always paid him a fixed
(k) Dixon v. R(,ifpr\i Telegraph Co. (1877), 46 L. J. Q. B. 197 ;
IVm/ford V. U. K. Elect. Co. (18(59), 38 L.J.Q.B. 249 ; L.R.4 Q. B. 706.
(/■) Sanimefl v. Wrii/fil (18().l), 5 l-'.xj). 26:i ; see also Jhan v. Brmth-
waite (1803), 5 Exp. .36 ; Smith v. Lain-enre (1828), 2 x\l. & W. 1.
(m) Lauqhtr v. rointfr (1826), f) B. & C. .'547.
(71) Qnurman v. Burnett (1840;, 6 M. & W. 499.
WHO IS THE MASTER. 99
sum for each drive, and had provided him with a Hvery
which he left at their house at the end of each drive,
and the injury was occasioned by his leaving the horses
while so depositing the livery in their house ; and yet
as the driver was the servant of the owner of the horses,
with whom a contract was made by the owners of the
carriage, and that contract did not raise the relation of
master and servant at all between the parties thereto,
the owners of the carriage were held not liable for the
act of the driver. Lord Ahinger, C.B., on another
occasion (o) said it had always appeared to him that
the Court of King's Bench had pursued an erroneous
course in Laugher v. Pointer, where they allowed the
question then raised to be discussed as if it were a
question of law. In his opinion it was impossible to
lay down a rule of law on such a point. No satisfactory
line could be drawn at which, as a matter of law, the
general employer of a driver ceased to be responsible,
and the temporary one became so. Each case of this
class must depend upon its own circumstances, and the
jury, taking the circumstances of the case into con-
sideration, must undertake the task of deciding whether
at the time of the accident the driver was acting as the
servant of the jobber or of the hirer. These views
would appear to have been acted upon when the hirer
by his conduct has acknowledged himself liable. For
example, the defendant hired a carriage and four horses
with postillions to go to Epsom, and on the road over-
turned a gig and injured the plaintiff at a toll gate.
After the accident the defendant, who was on the
driver's box, offered money to the injured party and gave
him his card : and the owner of the gig afterwards
called upon the defendant who then offered an explanation.
It was held that the jury were warranted in inferring
(o) Brady v. G'^Ye*' (183.5), 1 Mood. & Rob. 1.
H-2
100 LIABILITY OF MASTER TO TIIIIID PARTIES.
that the postiUions had acted as they did with the
sanction of the defendant, and consequently that he
was hable for the injury done (p). It was said the
question was whether the evidence did not show that
the defendant had so conducted himself as to be liable
as a co-trespasser with the postillions whose misconduct
had given rise to the injury, either by the active part
he took, or from his tacit consent.
The decision in Quarman v. Burnett was followed in
the more recent and analagous case of Jones v. Corpora-
tion of Liverpool {q). Here a contractor supplied
horses and drivers to draw the watering carts belonging
to the Liverpool Corporation. The drivers were
employed and paid by the contractor and were not
under the control of the corporation except that their
inspector told them what streets to water. It was
held that the corporation was not liable for injuries
caused by one of the drivers.
Ratification. — If the master ratifies and adopts the
act of his servant even when done without any precedent
authority, whether it be for his own advantage or
otherwise, and founded on tort or on contract, the
master becomes liable to the same extent as if the act
had been done by his command (r). The act done
must be for and on behalf of the master (s).
Double liability. — A master may be liable to two
actions by the same plaintiff for the same accident, c.rj.,
in the county court for damage to a vehicle, and in the
High Court for personal injuries (t).
Master no longer liable if the servant has been
convicted and compensation paid by him {u).
{p) McLaiK/hliu v. Pri/or (1842), 4 M. & C. 48.
(q) Jones v." Corporatian of Lirtrpool (1885), 14 Q. B. D. 890.
(r) Wilson v. Tummon (184.5), (i .Scott, N. R. 904.
(«) Wilson V. Barker (1833), 4 B. & Ad. 616.
(t) Brumden v. Humphreys (1884), .53 L. J. Ex. 476.
\u) Wri(jht V. London General OmaUnis Co. (1877), 40 L. J. Q. B. 429 ;
L. R. 2 Q. B. 271.
( 101 )
CHAPTEE IX.
Liability of the Master to Thied Paeties foe
THE Contracts of his Servant.
The relationship of a master to his servant in regard
to contracts made by the latter, is a phase of that
wider relation of principal and agent, as expressed by
the maxim, Qui facit "per aUumJacit jper se, if, indeed,
the responsibility of a principal for his agent did not
originate in and grow out of the older relationship of
master and servant.
Authority of servant express or implied. — But a
servant as such, as a mere agent, has no authority
whatever to bind his master by his contracts; but a
servant may be invested by his master with such
authority either expressly or by implication, and whether
the authority have been antecedently given, or be
subsequently recognized by adoption of the contract,
the effect will be the same {x) .
Express authority may be given by deed, in w^riting
or by parole, and the liability of the master will be
hmited by the extent or scope of authority thus shown
to have been given. AVhen the authority is given in
writing, little doubt or difUculty can occur in determining
the master's liability ; it is w4ien given by word of
mouth that the uncertainty often occurs. When the
authority is only implied, the doubts or difhculties
naturally often become greater still, for its extent must
necessarily be a matter of inference, to be gathered from
the course of dealing adopted or sanctioned by the
master, and, consequently, the limit of his responsibility
{x) Rudnj V. Scarlett (1803), 5 Esp. 76.
102 LI.AJBILITY OF MASTER TO THIRD PARTIES.
will ill siuli case be equally uiulefmed and uncertain.
This nuplied authority is the more common and the
more mischievous in its effects, for it is frequently
unintentionally conferred, and its very existence, perhaps,
only discovered by the master through his being called
upon to answer for its abuse.
Scope of implied authority. — The scope of the
implied authority of the servant depends on the extent
of his employment, and on how far the master, by his
conduct — active or passive — holds him out as his agent.
Where a servant is in the habit of transacting any
particular branch of his master's business, he thereby
derives a general authority and credit from him in all
matters of a like nature ; nor can this general authority
be determined so as to affect third persons acting on the
faith of it, without notice to them of its determination.
Therefore, where a servant in the habit of transacting
affairs of that nature, was sent to cash a draft on a
banker, but instead of doing so, in order to save himself
trouble, got a third party to cash the draft, and after-
wards, before the draft was presented, the banker failed ;
it was held that the master was bound by such act of
his servant, and must bear the loss (y). Or take the
ordinary case of sending a^ servant to buy goods without
providing him beforehand with the money to pay for
them : under such circumstances, an implied authority
is necessarily given to the servant to pledge his master's
credit : and upon the strength of this authority, not
only will the master be liable for the goods so obtained,
notwithstanding his having afterwards sent the servant
with the money to pay for them, if, in fact, it is not
paid over to the tradesman, but also for any other goods
which may subsequently be obtained by such servant
upon his master's credit ; though he may have been
((/) Xickson V. BrohxH (1713), 10 Mod. 100.
SCOPE OF IMPLIED AUTHORITY. 103
sent with the money to pay for the same, and have
appropriated it, or may have surreptitiously obtained
the things for his own use. And a single instance of
recognition by the master of a contract made on his
behalf by his servant, has been considered sufficient
to raise the presumption of an implied authority (z).
And the liability of the master under these circum-
stances continues even after the discharge of the
servant, unless it can be shown that the tradesman was
aware at the time that the servant had no such
authority, or knew that he had been discharged from
his situation (a). If, however, the servant is always
provided with ready money beforehand, no such implica-
tion will arise, and the master will be under no liability
to pay for the goods ordered by the servant. This
point was raised in the case of Busby v. Scarlett (b),
where the master was in the habit of giving his coach-
man money to pay for hay and straw. The servant
appropriated the money given to his own use, and
bought the goods on credit, and charged the amount to
his master, who was quite unknown to the tradesman
supplying them. The tradesman sued the master for
the money, and at the trial. Lord EUenhorough said :
" It is material to see when the money was given. If
the servant was always in cash beforehand to pay for
the goods, the master is not liable, as he never authorized
him to pledge his credit ; but if the servant was not so
in cash, he gave him a right to take up the goods
on credit, and would be liable." And even where a
tradesman had supplied the defendant's family with
(z) Hazard v. Treadtoell(\122), 1 Stark. 506; Bolton v. Hillemden
(1697), 1 Ld. Raym. 224 ; Sir Boh. Wayland'.s case (1708), 3 Salk. 234,
Holt, C.J. ; Bu.^hi/ v. Scarlett {IS03), 5Esp. 76; 3ril/er v. Hamilton
(1872), 5 C. & K. 433 ; Su7n?7iers v. Solomaii (1857), 7 E. & B. 879 ; Toiiii
V. Crawford (1842), 9 -M. & W. 718.
(a) Monk v. Clayton, quoted in Nickson v. ^?-oAa?t (1713), lOMod. 110.
(6) Bwiby V. Scarlett (1803), 5 Esp. 76.
104 LIABILITY OF MASTER TO THIRD PARTIES.
bread, for Avhich weeklj^ bills were delivered to his
housekeeper, who had charged for the payment of the
same in her accounts, and the later bills had been
regularly paid and receipted, but the earlier had not,
the defendant was held liable, for in the absence of
proof of the money having been given to the housekeeper
to pay the later bills, the question of negligence on the
part of the baker in receipting the later and leaving the
earlier l)ills unpaid, could not be raised (c).
Private agreement between master and servant
does not affect former's liability. — The liability of the
master is not in the least diminished by any private
agreement between him and his servant, which is
unknown to the party deahng with the latter. This
point was raised in Precious v. Ahel (tZ), a case in which
a farrier brought an action for work and labour, and
the defence set up was that the defendant, by an agree-
ment with his groom, allowed him five guineas a year
to keep the horses properly shod, and furnish them with
proper medicines when necessary. Lord Kenyon said
this was no defence to the action, miless the plaintiff
knew of this agreement, and expressly trusted the
groom. That if a servant buys things which come to
his master's use, the master should take care to see
them paid for, for a tradesman has nothing to do with
any private agreement between the master and servant.
In another case, a coachman went in his master's livery,
and hired horses of a horse jobber, and they were sent
and used in his master's carriage. It was then said (e)
that if the coachman did not inform the plaintiff of the
agreement between him and his master, the master's
sending him forth into the world wearing his livery, to
hire horses which he (the master) afterwards used,
(r) Miller v. Hamilton (1832), 5 C. & P. 4.3.3.
(fZ) Preriom v. Ahel (1705), 1 Esp. .350.
(e) liimdl v. Sampayo (1824), 1 U. & P. 254, per Littledai^e, J.
seevant's warranty. 105
knowing of whom they were hired, and yet not sending
to ascertain if his credit had been pledged for them, an
imphed authority was given, and the master was bomid
to pay for the hire. The jury, however, came to the
conchision that the plaintiff did know of the agreement,
and so found a verdict for the defendant.
Liability of master for servant's warranty. — How
far a master is bound by a warranty given by his servant
when sent to sell something on his behalf depends on
the natm*e of the master's business, the place of sale,
and the scope of employment of the servant. If, for
example, a horse dealer's servant be sent into a market
to sell a horse, with express orders not to warrant him,
but the servant do notwithstanding warrant the horse,
the master will be bound by the warranty, because the
servant is acting within the general scope of his employ-
ment (/). And the responsibility would appear to be
the same if the master is not a dealer, if the horse is
sent to Tattersall's ig), or to a fair (li) for sale'. But the
servant of a private owner entrusted on one particular
occasion, not at a fair or other public mart, to sell and
deliver a horse, is not, therefore, by law authorized to
bind his master by a warranty ; but the buyer who
takes a warranty in such a case takes it at the risk of
being able to prove that the servant had his authority
to give it (i). A servant who delivers a horse, already
sold by his master, to the buyer, has no authority to
give a warranty binding on his master {Tx) . Or if, when
a servant is sent to receive payment for the article sold,
(/) Howard v. Sherrard (1867), 36 L. J. C. P. 42 ; Baldry v. Bates
(1885), 52 L. T. 620; Cf. Lord Kenyon in Ftnn v. Han-koii (1790),
3 T. R. 760.
(r/) Hell/ear V. Hawl-e (1803), 5 Esp. 72.
(h) Bvoot'^ V. //a.swa//(1883), 49 L. T. 669.
{i) Brady v. Todd (1861), 30 L. J. C. P. 223.
(A) Woodm V. Burford (1834), 2 Cr. & M. 391.
lOG LIABILITY OF MASTER TO THIRD TARTIES.
he consents to an alteration in the warranty, the master
\vill not be Hable for the altered warranty {l).
Examples of implied authority. — A tradesman is
bound by the contract of his foreman (m), a company
by the orders of their manager (71), or by the acts of
their managing director (0) . Directors by the contract
of their secretary (p). Shareholders in a mine by
the contract of the purser (g). A firm of traders may
be liable for the indorsement of a cheque by their
manager (/•)• ^f a book-keeper in a carrier's office
agrees to carry in a particular way or at certain rates,
his master will be bound by the agreement (.s). In a
case (t) of this kind, Lord Tenterden remarked : " If a
person goes to the office of a carrier, and asks what a
thing will be done for, and he is told by a clerk or
servant who is transacting the business there, that
it will be done for a certain sum, the master can
charge no more. It is said that this person had no
authority to make such a bargain; however, I am of
opinion that it signifies nothing in this case, whether
the servant did his duty, or made a mistake. . . If
men were not bound by such bargains as this, business
could not go on." But the implied authority of a
carrier's book-keeper does not extend to enable him to
bind his master by a promise to make compensation for
the loss of a parcel, unless the book-keeper can be
shown to be a general agent, and that the principal
ratifies the promise which he makes (u) .
(I) Strode v. Dyson (1804), 1 Smith, 400.
(m) Richardioii.v. Cartwri<ihl (1844), 1 C. & K. 328.
hi) Smith V. Hull ain.sH Co. (1852), 11 C. B. 847.
\o) Totterddlv. Fareham Brirkand TifeCo. (1866), 35 L. J. C. P. 278.
(p) Muddk/cv. Marshall (1864). 17 C. B. (n.s.) 829.
(7) (leake v. Jackson (1867), 136 L. J. C. P. 108.
(r) Charles v. BlackmU (1876), 4a L. J. C. P. 542.
(.s) L<:)iii V. //or»M1825), 1 C. & P. 610.
(0 WiiKjfidd V. Parkiwiton (1827), 2 C. & P. 599.
\u) Oiivt V. Eamen (1817), 2 Stark, 181.
EXAMPLES OF IMPLIED AUTnORITY. 107
A servant was sent to a salesman with a load of hay
to be disposed of on account of his employer, and the
salesman having already paid the price of the hay, sold
it, and told the servant to deliver it to the purchaser.
The servant was cheated out of the hay by some one
personating the real purchaser. The salesman then
brought an action against the master of the servant to
recover the price, and he was successful, it being held
that his conduct had not made the servant his agent,
and that the latter had all the time been in the employ-
ment of his master (x).
Master may be liable for one not his servant. — Under
certain conditions, a master may be liable for one not
actually his servant, but who from the circumstances of
the case might well be presumed by a stranger to be so.
And such decisions may be justified on the principle laid
down long ago by Chief Justice Holt, that " seeing
somebody must be the loser by the deceit, it is more
reasonable that he that employs and puts a trust and
confidence in the deceiver should be a loser than a
stranger (?/)." For example, it has been held that
payment made to a person found in a merchant's
counting-house, and appearing to be entrusted with the
conduct of the business, is good payment to the mer-
chant, though it turns out that the person was never
employed by him (z). Similarly, a person in an
attorney's office refusing a tender (a). Payment to a
sheriff's bailiff's assistant is good against the sheriff (h).
And a man was once held liable for a guarantee by his
son, aminor, who had, in three or four instances, signedfor
his father, and had accepted bills of exchange for him (c) .
(x) ainqull V. Glasscock (1831), 8 Bins- 86.
(y) Jferu v. Mcho/s {\H)l), 1 Salk. -iSO.
(2) Barrett v. Deere (1S2S), Mood. & M. 200.
(a) Wilmott V. Smith (1829), iMood. k M. 2:?8.
(b) Greqory v. Cotterell (1855), 5 E. & B. 571.
((•) Wcitkins V. Vincc (1818), 2 Stark. 3U8.
108 LIABILITY OF MASTER TO THIRD PARTIES.
When master not liable. — It may be advantageous
here to eudeavour to suniiuarize briefly the conditions
under which the master is absolved from responsibihty
for the contracts made by his servant.
1. When the servant acts beyond the limits of his
authoritij. — Whether that authority be express or
implied. Wliere a servant paid the butcher's bill every
week for a long period, and then, instead of paying for
the meat bought, took credit and pocketed the money,
the master was not liable {d) . Again, where the master
of a family was in the habit of paying ready money for
a given quantity of goods supplied by a tradesman, and
the servant clandestinely took in more, the master was
held not liable, for it was sufficient to put the tradesman
on his guard, and make him inquire of the master
whether the extra quantity was for his use {e) . A butler
ordered brandy in the name of his master, it was
delivered, but consumed by the butler, the master
was not privy to the order, delivery, or consumption,
and was accordingly freed from all liability by Lord
EllenhoroiKjh, who observed, that w^e must give up
housekeeping if such evidence as this were sufficient to
bind a master (/). A tailor received from a lady an
order for two suits of livery a year for her coachman.
At the request of the coachman, the tailor took back
one of the suits, and supplied in its place a suit of
ordinary clothes. The mistress refused to pay for the
latter, and the tailor failed in an action to recover their
value ig). If a servant, without his master's knowledge,
employ a tradesman his master has never employed
before, the master will not be liable. For example, a
servant having broken his master's carriage, employed a
(d) Stuhhinfi V. Hertz (1701), 1 Peake, 66.
(c) PKtrre v. Nogrrs (IH(HI). S Esp. 214.
(/) Maunder v. Conytrs (1817), 2 Stark. 281.
Ig) Ihmter v. Bowayer Countess of Berkeley (1836), 7 C. & P. 413.
WHEN MASTER NOT LIABLE. 109
coachmaker to mend it who had never been employed
by his master, who was totally ignorant of what had
happened. On the master refusing to pay for the
repairs, the coachmaker wished to keep the carriage as
a lien, but the law would not allow him to do so, and
he was compelled to return it to its rightful owner Qi).
If a man leaves his child with a servant, and gives that
servant money enough for the supply of necessaries to
the child, the servant is not a general agent to provide
such things on his master's credit {i).
The bailiff of a farm through whose hands all pay-
ments and receipts take place, has no implied authority
to pledge the credit of his master by drawing and
endorsing bills of exchange in the name of the latter (A;) ,
A railway station-master has no implied authority to
enter into a contract with a surgeon to attend a
passenger injured by an accident on the railway, and
the railway company are not therefore liable to the
surgeon for services rendered to such a passenger under
these circumstances {I). It has since been decided that
the general manager of a railway has such authority {m) .
A master is not liable if the seller to the servant
know^ing full well who is his master chooses to debit
the servant {n) .
How far master bound by statements of servant. — A
master is not bound by the statements of his servant,
unless they are made in the com'se of his master's
business, e.g., the declaration of a pawnbroker's shop-
man with regard to plate received otherwise than in
(/i) Iliscox V. Greenwood (1803). 4 Esp. 174.
{i) Atkynsv. PefHre(lSr)7), 26 L. J. C. P. 252; per CocKBURN, C.J.
{k) DavidHonv. Staii/ii/ (1S4I), 2 M. & (i. 721.
(I) Cox V. Midland Count ie-^ Hail. Co. (1849), 48 L. J. Ex. 65;
3 Exc. 268 ; C/. Hawtaym v. Bourne (1841), 7 M. & VV. 595.
(m) Walker v. G. W. R. Co. (1807), 36 L. J. Ex. 123; Lanyon y.
G. W. Bail. Co. (1873), 30 L. T. 173; but Cf. Gwilliam v. Twist, [1895J
2 Q. B. 84.
(h) Thomson v. Davenport (1829), 9 B. & C. 90 ; inr Littledale, J.
110 LIABILITY OF MASTER TO THIRD PARTIES.
connection with the pawnbroking business, were held
by the court not to be evidence against his master (o).
A letter written to the plaintiff's attorney a week
before the commencement of the action by the attorney
who afterwards acted for the defendant is not binding
on his client (p) .
2. A servant has no implied authority to hind his
master in matters collateral to a contract within the
scope of his employment. The following examples will
explain this statement. A payment made to a clerk or
apprentice in his master's counting-house, not in the
usual course of business, but on a collateral transaction,
is not a good payment to the master {q) .
If a servant sent to receive money take a bill instead,
and give a receipt, the master will not be bound by the
receipt unless the bill is paid {r). Or a clerk who takes
money over the counter will not bind his master if he
receive a cheque by post (.s) .
A traveller who takes orders in the country, and is
authorized to take payment for them, is not justified in
taking goods in place of money (0-
A man employed to take orders has not necessarily
implied authority to take payment for them {u).
If a servant employed to keep his master's shop, or
to sell for him, give away his master's goods, the latter
may maintain an action against the receiver (x).
A railwaj' company is not liable on a contract made
by their general manager regarding land (//) .
(o) Garth V Ilomird and F/e miiK/ (\H:i2), 8 Bing. 451; Cf. G. W,
Rail. Co. V. Willis (ISO.")), 34 L. J. C. P. 195 ; 18 C. 13. (n..s.) 748.
(p) Wa<i.slafv. »'i7.vo« (1832), 4 B. & Ad. 3;i9.
(q) Sanderson v. Hell (\H:U), 2 Cr. & M. 304.
(r) Ward v. Erans (]H)4), 2 Salk. 442.
(.v) Kai/e V. Bnf/ (1S,")()), 5 Kxc 2(3!).
(/) J/o'irurd v. Vhnpmaii (IcS31), 4 C. & V. 508.
(a) Puttock V. M'a;/- (1858), 31 L. T. 80.
(x) Noy's Max. 218, Jith ed.
(y) Wilson v. West Hartltpool Rail. Co. (1865), 34 L. .J. Ch. 241 ;
11 L. T. (.\.s.)327.
WHEN SEEVANT A SPECIAL AGENT. Ill
When servant a special agent. — Several of the pre-
ceding cases (z) illustrate the principle that if the master
gives his servant express authority, the latter becomes
a special agent, and the master's liability will be strictly
limited by that agency. Where the servant is a special
agent sent on some one particular errand, or to carry
out one particular transaction, it is incumbent on the
third party (who is aware that the servant is a special
agent) to inform himself of the extent of the servant's
authority (a).
3. Master not liable if Jiis servant jpZecZ^/e his credit
after dismissal if knowledge of the fact is brought home
to the third party.
Therefore, if a person who has dealt with a trades-
man on credit, afterwards resolve to discontinue buying
on credit, and to pay ready money on delivery for the
things bought, it is not sufficient to give notice of this
intention to the tradesman's servant, it must be given
to the tradesman himself (b) . Upon a similar principle,
where a servant is in the habit of receiving sums of
money for the use of his master, and the servant pays
these over to the master from time to time without any
written vouchers passing between them, the presump-
tion of law is that all sums so received by the servant
are regularly paid over to the master ; therefore, in an
action by the master against the servant for money had
and received, it is not enough for the master to prove
that sums have been received by the servant to his use ;
(:) Ward v. Evans (1704), 2 Salk. 442 ; Kai/e v. Brett (1850), 5 Exc.
2G9 ; and see also Waters v. Brot/dtn (1827), 1 Y. & J. 457 ; Thorold v.
Smith (1707), 11 Mod. 87. "Where a man has authority to receive
money, lie cannot receive anything else." Holt, C.J.
(a)" ILnktl V. Pap((\^l\), 40 L. J. Ex. 15 ; Jordan v. Xorton (1838),
4 M. & W. 155; Ntile v. Tarton (1827), 4 Bing. 149; Alexander v.
Mackenzie (1848), 6 C. B. 76G.
(h) Grat/and v. Freeman (1800), 3 Esp. 85 ; Cf. Summers v. Solomon
(1857), 7 E. & B. 879 ; 2U L. J. Q. B. 3Ul.
112 LIABILITY OF MASTER TO THIRD TARTIES.
but the onus lies upon him to prove by x^ositive evidence
that the servant has not duly accounted with him (c).
If a lon^f time has elapsed since the last order was
given by the servant, a presumption of discharge is
raised, which should put the tradesman on his
guard (d).
Death of the master revokes the authority of the
servant, and the acts of the latter are not binding on
the master's representatives (e) .
Ratification. — If the master ratifies a contract entered
into by his servant, he will be liable upon it just as if
he had previously authorized it : Omnis ratiliahitio
retrotraliitur et mandato ^priori eqidparatur (/). But
the servant at the time of making the contract must
have purported to act on his master's behalf {g).
Ratification by the master means the adoption of the
contract in its entirety; he cannot reject part and
adopt the rest Qi).
Mere user of the goods hy the master does not render
him liable, but it is strong pritiid facie evidence against
him, and the onus will be on him to prove either that
credit w^as given to the servant, or that the servant had
no authority to pledge his credit (i).
(c) Evans v. Birch (1811), 3 Camp. 10.
(d) SlareUy v. Uzzidli (1860), 1 F. & F. 284 ; v. ffarrixo
(1699), 12 Mod. 346.
(e) Blades v. Free (1829), 9 B. & C. 169.
(/) 8tory on Agency, 239 ; Bird v. Brown (1850), 4 Exc. 798.
(r/) Wilson v. Tummon (1843), 6 M. & G. 236.
(k) Bolton V. Lambert (1889), 58 L. J. Ch. 425; Cj. Ferguson v.
Taylor (1829), 9 B. & C. 59.
(i) Pearce v. Borjers (1800), 3 Esp. 214.
( 113 )
CHAPTEK X.
Liability of Master for Crimes of His Servant.
If a master command his servant, who is innocent of
its illegal nature, to do a criminal act, he will be liable
for it {k) . But if the servant also knows that the act
is a criminal one, they will both be liable (/). For
example, a servant knowingly received stolen goods for
his master who, though absent, knew they were stolen.
It was held that they could be jointly indicted for
receiving the goods (m) .
A master has also been convicted for stealing coal by
the hands of his servants (n) .
Libels in newspapers. — The master may be liable,
although the act done by the servant is unknown to
him, if it is of such a nature as to come within the
scope of his employment, for the authority of the
master will then be implied. This principle has been
several times illustrated by libels published in news-
papers. The celebrated letters of Junius were published
in a periodical called the " London Museum," and were
sold at the shop of a Mr. Almon by a lad in his employ-
ment, and the periodical was purported to be printed
for him. Mr. Almon was unaware of these libels com-
municated to the periodical, and only discovered it
after several copies had been sold, when he took
immediate means to stop the sale. Notwithstanding
these efforts, however, the unfortunate bookseller was
convicted (o).
(/:) R V, Higgins (1729), 2 Stra. 882.
(/) R. V. Williams (ISol), 1 C. & K. 589.
(m) Reg. v. Parr (1S41). 2 Moo. & R. 346.
(n) R. V. BhasdaU- tlS4S), 2 C. & K. 75ti.
(o) R. V. Almon (1770), 5 Burr. 2GSG.
M. & s. I
114 LIABILITY OF MASTER FOR CRIMES OF SERVANT.
A few years later, Mr. Walter, the proprietor of the
" Times," although living down in the country and taking
no active part in the conduct of the newspaper, was made
liable for libellous statements printed in it (p). The
state of the law being thus considered onerous, it was
amended by statute (7) in 1843, which made it " com-
petent to such a defendant to prove that the pubhcation
was made without his authority, consent or knowledge,
and that the said publication did not arise from want of
due care or caution on his part." And the proprietor
of a newspaper is not now held responsible for the acts
of his editor who has general authority to conduct the
journal according to his own discretion (r).
Quasi-criminal acts. — Not unfrequently the criminal
liability of the master for the acts of his servant exists
by statute. This hability is distinguishable from that
of ordinary ciime; it is more truthfully described as
penal, and might perhaps be termed quasi-criminal.
As Bayleij, B., observed in the case of the Att.-Gen. v.
Sicldon (s) : "I consider this as being not properly a
criminal proceeding, but a ci\al proceeding for the
pm-pose of recovering that which is a debt for the
Crown. It is a penal proceeding." This was a case
under the Revenue Laws, which best illustrate this land
of liability, and it dealt with the harbouring and con-
cealing smuggled goods by a trader, who was held
liable in penalties for the illegal act of his sei-vant in
procuring a forged permit. The servant did this upon
the exigency of the occasion, when the goods were
discovered, with a view to protect them. The servant's
{p) R. V. Walter (1800), .3 Esp. 21 ; 7?. v. Gutch (1829), Moo. & Mai.
433, Lord Tentkkden, C.J.
(7) 6 & 7 Vict. c. 96.
(r) Rej]. V. IloJhrook (1870), 48 L. J. Q. B. 11 ; 4 Q. B. D. 42; see
Cooptr V. Sladt (IS.IS), (i H. L. C. 793 ; 27 L. J. Q. B. 449.
(.s) Att.-Gen. v. Sidilon (1830), 1 Cio. J. 220; see also Anon. Dyer,
2386 ; Lane, v. Cotton (1701), 12 Mod. 473.
LICENSING LAWS. 115
act was one done in the conduct of his master's business,
though the master was himself absent at the time. The
learned Baron remarked that " If the servant adopts
means to save his master, who is carrjang on an illegal
trade, and can have no other object, prima facie this
act ought to be considered an act done by him in the
service of his master, and within the probable authority
which the master gives to his servant with reference to
articles of that description."
The Licensing Laws afford another example. By the
Licensing Act, 1872 {t), it is made an offence for any
licensed person to supply liquor to a constable on duty.
And it has been decided that if liquor is so served by a
servant of the pubhcan without the latter's knowledge,
the publican is liable {u). The same statute makes
gaming in Hcensed houses illegal, and from cases {x)
which have come before the courts the inference may
be drawn that actual knowledge on the part of the
publican is not essential to make him liable to the
penalty the law imposes; but he will be so liable if he
or even his servant connives at gambling going on. If
the servant is not in charge of the premises, the master
would appear not to be hable {y).
Bakers. — By statute {z), a baker is liable to a penalty
for adulterating his bread with alum ; and a baker has
been held indictable for the act of his servant in putting
alum into the bread {a).
(t) 3.) & .36 Vict. c. 94, s. 16.
(ti) Mull ins V. Colim-1 (1874), 4,S L. J. M. C. 110.
(a-) Besley v. Danes (1876), 45 L. J. M. C. 27; 10 Q. B. D. 84;
Hedgate v. Haynes (1876), 1 Q. B. D. 89 ; Ciuuly v. LeCocq (1884), 13
Q. B. D. 207.
(y) Somerset v. Hart (1884), 12 Q. B. D. 360 ; Bond v. Evam (1887),
21 Q. B. D. 249.
(2) 6 & 7 Will. 4, c. 37, amending 36 Geo. 3, c. 22, and 37 Geo. 3
e. 98.
\a) IL V. Dixon (1814), 3 M. & S. 11.
I 2
IIG LIABILITY OF MASTER FOR CRIMES OF SERVANT.
Food and Drugs Act. — Under the Food and Drugs
Act, 1875 {b), a master is liable for the acts of his
servant, though ignorant of them, and even when he
has given orders against them (c). But he will not
be so liable if the acts are outside the scope of the
servant's authority (cZ).
Other Acts. — The same principle applies under the
Pharmacy Act, 1867 (e), the Pawnhrohers Act, 1872 (/),
and the Contagious Diseases {Animals) Act, 1894 {g).
Under the last-mentioned Act, a master has been
convicted for sending by his servant diseased animals
for sale {h).
Nuisances. — A master is criminally liable for nuisances
committed by his servant. As was remarked long ago
by Chief Justice Holt : " If my servant throw dirt in
the highway I am indictable " {i). The directors of a
gas company have been held answerable for their
superintendent and engineer, who had a general
authority to manage the works, for turning foul refuse
into a stream, though they were ignorant of the act,
being a departure from the original and understood
method, which the directors had no reason to suppose
was discontinued. The chairman, vice-chairman,
superintendent, and engineer were all convicted {k).
The owner of a quarry was also held liable to be
indicted for a public nuisance caused by acts of his
(h) 3S & 39 Vict. c. O;}.
((•) Brown v. Foot (18!)2), (Jl L. J. M. C. 160.
(d) Newman v. Jont.s (188G), 17 <l ii. I>. 132; KearUy v. Tonge
(1891), GO L. J. M. C. 159.
(e) 31 & 32 Vict. c. 121, s. 17.
(/) .3.") & .30 Vict. c. 93, s. S.
((/) "i & r)8 Vict. c. 57 (Consolidating Act), repealing and amending
Aciis of 1878 and 18(58.
{h) Nichols V. Hall (1873), 42 L. J. M. C. 605; 28 L. T. 473; 21
W. R. 579.
(?) Turheville v. S/nmp (1098), 1 Rayni. 264.
(A-) /?«/. V. il/e(i/ry (1S34), 6 C. & 1'. 292 ; /.Vy. v. O. N. li. Co. (1846),
9 Q. B. 315.
NUISANCES. 117
workmen tlirowing slate and other refuse into a
navigable river, though done without his knowledge and
against his general orders (I).
With regard to smoke nuisance, a master has been
held liable under the Public Health Act, 1875 (m), for
his stoker's negligence in not seeing that the smoke of
his furnace was consumed (») .
(1) Beg. V. Stephen (1866), 1 Q. B. 702.
(m) 38 & 39 Vict. c. 55, s. 91, sub-s. (7).
(n) Niren v. Greaves (1890), 55 J. P. 548; but see Chishohn v.
Doulton (1889), 22 Q. B. D. 73G.
(118)
CHAPTER XI.
Liability of the Servant to Third Persons.
Liability of servant for torts. — A servant is liable
for misrcasancc, but not for nonfeasance, omission or
negligence in the performance of his duties. This was
laid down by Chief Justice Holt as far back as 1701, in
the case of Lane v. Cotton (o), when he said : "A servant
or deputy qiiatenus such cannot be charged for neglect,
but the principal only shall be charged for it ; but for a
misfeasance, an action will lie against a servant or
deputy, but not quatenus a deputy or servant, but as a
wrongdoer." This is simply in accordance with the
principle that all tort-feasors are principals, and the act
being done by command of his master will not avail to
relieve the servant of his liability. " For the warrant of
no man, not even of the King himself, can excuse the
doing of an illegal act, for although the commanders
are trespassers, so also are the persons who did the
fact"(i)).
A servant is liable for conversion, and that even if
done solely for the master's benefit (q). Thus, where a
servant received a bill of exchange from the holder,
knowing it to be in his hands for the purpose of getting
it discounted, and appropriated it to the payment of a
debt due from such holder to his master, the servant
was held liable to the owner of the bill for such
conversion (/•) . And similarly where a traveller received
(o) Lane v. Cotton (1701), 12 Mod. 488.
(p) Sands V. Child (169.3), .3 Levinz, 3.52 ; Merry treat her v. Nixon
(1799), 8 T. R. 186.
{q) Caret/ V. ]yeb.ster (\l\(j), 1 Stra. 480; Greemixiy v. Fl-iher {\%'M),
1 C. & P. 190.
(r) Crunch v. Wliite (1835), 1 Scott, 314 ; 1 Bing. N. C. 414.
FRAUD. 119
goods from a person who had committed an act of
bankruptcy, and sold them for the benefit of his
master (s). And if a servant is guilty of a conversion,
it is no answer that he acted under the authority of his
master, even though the servant act under an unavoid-
able ignorance and for his master's benefit (t). But a
servant will not be liable for intermeddling with
another's goods by his master's orders, if it does not
amount to a conversion, but only to a refusal to give up
the goods to their proper owner until his master has
been consulted (u).
A parcel was given to a waggoner for him to carry for
his own gain, and not for the profit of his master. The
waggoner, and not his master, was held liable for the
loss of the parcel (x) .
If a servant wantonly do an injury, though at the
time actually engaged in his master's service, he will be
liable. A coachman wilfully drove his master's carriage
against and injured a chaise belonging to another
person. The master was held not responsible, but the
servant liable (y).
Fraud. — If a servant knowingly commit a fraud,
although whilst on his master's business, or even
authorized by his master to commit it, he will be hable.
If the fraud is committed by his master's orders, both
master and servant will be hable. As Lord Westbunj
said in C alien v. Thompson {z) : "A servant who joins
with and assists his master in the commission of a
fraud, is civilly responsible for the consequences, though
his concurrence is unknown to the party injured, for all
(s) Perkins v. Smith (1752), Sayer, 40.
(t) Sfepheu.s v. El wall (1815), 4 M. & S. 259.
(u) Mires v.Solebay{H}7S),2^lod.2i2; Alexander v. Southei/ (IS21),
5 B. & Aid. 247 ; Lee v. Bayes (1856), IS C. B. 607.
(x) Butltr V. Badncj (1827), 2 C. & P. 613.
((/) McManus v. Crickctt QSOO), 1 East, 106.
(z) Cullen V. Thompson (1862), 6 L. T. (N.s.) 870.
120 LIABILITY OF SERVANT TO THIRD TERSONS.
directly concerned in the commission of fraud are
principals . . . lor the contract of service cannot
impose any obligation on the servant to commit or assist
in committing a fraud."
Public officials. — Although, as previously explained (a) ,
superior public officers are not liable for the acts of the
inferior officers under them, these latter are themselves
liable. For example, although, as decided in Lane v.
Cotton (Ji) , the Postmaster-General is not liable for letters
^vhicll may be stolen, yet deputy-postmasters have been
held liable (c).
SuhsidiarTj officials have in several instances been also
held liable, e.g., returning officers {d), overseers (e), and
customs collectors (/).
Liability of servant for contracts. — As ^Ye have pre-
viously seen, when a servant is acting within the scope
of his emplo3'ment, and with the authority, express or
implied, of his master, he is not liable for the contracts
on which he enters, but the responsibility rests upon
the master — respondeat superior.
If, however, the servant fraudulently represents
his authority with intention to deceive ; or has no
authority, and knows it, yet, nevertheless, makes the
contract professing to have such authority, in other
words, makes a statement he knows to be false; or
whilst bond fide believing that such authority is invested
in him, yet has, in fact, no such authority, in other
words stating as true what he did not know to be true,
omitting at the same time to give such information to
the other contracting j^arty as would enable him equally
(a) FtV/eChap. VIII., p. 97.
(h) Lane. v. Cotton (1701), 12 Mod. 488.
(r) Stork v. Harris (1771), 5 Burr. 2709; Barnes v. Foley (1768),
5 Burr, 2711.
[d] Ashhy V. ]yhite (1703), 1 Salk. 19; 1 Sm. L. C. 227.
(e) Ptrrinij v. JIarris (1836), 2 Moo. & Rob. T).
(/) Barry v. Amaud (1839), 10 A. & E. 646.
CONTRACTS. 121
with himself to judge as to the authority under whiclt
he proposed to act — in all these cases the servant will
himself be liable {g).
The servant may also be liable if he contract in his
own name, unless he add q^Hqv i^er pro., i.e., per procura-
tion, signifying that he is signing in reality on another's
behalf. In fact, to support an action against a servant
to recover back the money received by him as money
had and received by him to the use of the plaintiff, a
receipt signed by the servant " for " his master will not
be sufficient, such a receipt being only evidence of a
payment to his master by the hands of his servant {h) .
Therefore, where money was received by a clerk to an
attorney, who was authorized to receive it for his client,
the clerk signing the receipt for the attorney, it w^as held
that there w^as no privity between the clerk and the
client ; that the money was received by the clerk as the
agent of the attorney, to whom alone he was account-
able, and who was answerable on the other hand to his
cHent ; and that an action, therefore, would not lie
against the clerk (who did not account for the money
on his master becoming bankrupt) at the suit of the
client for money had and received to his use {i) .
Neither will an action lie against a servant at the suit
of a creditor for money placed in his hands by his master
for the purpose of being paid over to such creditor, but
withheld, as the money was only received in his capacity
of servant, and there was no act on his part of
appropriation of the money to the use of the creditor Qi) .
If a servant, having received money for his master,
has paid it over to his master, he is freed from liability,
however great a mistake may have been made in so
(g) Smout V. Ilhury (1842),. 12 L. J. Ex, 357 ; 10 M. & W. 1 ; per
Al.DERSON, B.
(h) Eddenx. Read (1813), 3 Camp. 339.
(i) Stephem v. Badcock (1832), 3 B. & Ad. 354.
(k) Howell V. Batt (1833), 2 Nev. & Man. 381.
122 LIABILITY OF SERVANT TO THIRD TERSONS.
paying the money to the servant in the first instance (l).
But if money be paid by mistake to a servant, and
placed by him to the account of his master, but not
paid over, the servant will be hable to the person so
paying it by mistake. The mere paying of such money
into account without any new credit being taken, fresh
bills accepted, or further sum advanced for the master
in consequence of it, is not equivalent to the payment
of it over (m) .
If money has come into the servant's hands through
some wrongful act on his part, he cannot divest himself
of liability by paying the money over to his master (w)-
And to make it a defence for a servant that he has paid
over the money, it is necessary that it should have been
paid to him expressly for the use of the person to whom
he has paid it over (o). If money is paid to a servant,
and he misapphes it, the party so paying has his
remedy against either the master or the servant at his
election {p).
If a servant is authorized to pledge his master's credit
for necessaries dm'ing the absence of the latter from
home, and whilst away the master dies unbeknown to
the servant, and whilst thus ignorant of his master's
death he continues to buy necessaries on his master's
credit, such servant is not liable for the goods thus
supplied. And the executors of the master cannot either
be made responsible for the goods supplied on credit
after his death (q) .
(I) Caty V. Weh.'^ter (1710), 1 Stra. 480.
(w) Biil/er V. IJanHton (1771), Cowp. 565.
(n) Milltr V. Ari.'i (1801), 3 Esp. 231. See Lord Kenyox's judg-
ment.
(o) Snowdon v. Davis (1808), 1 Taunt. 859.
(p) Cun/v. Wchster (171(3), 1 Stra. 480.
(q) Blacks v. Free (1829), 9 B. & C. ltJ7.
( 123 )
CHAPTER XII.
Ceiminal Liability of the Servant.
In relation to his master. — With regard to criminal
acts, a servant is in exactly the same position in relation
to strangers as any other individual ; but in relation to
his master there is this distinction, that the master,
by placing property in the custody or charge of his
servant, does not, as in other cases, thereby part v^ith
the legal, but only with the actual possession thereof ;
and therefore the wrongfully making away with any
part of such property by the servant will amount to a
larceny, whereas if done by a person not standing in
that relation, as, for example, an ordinary bailee, the
same act might only be a breach of trust.
Murder. — By the common law murder of a master
by his servant was formerly an aggravated form of that
crime, in fact was petit treason, but this is now no
longer the case (r) .
Burglary. — A servant may be guilty of burglary
although living in his master's house. A servant
opened the door of a room within the house with the
intention of committing a felony. King, C.J., ruled
that it was a burglary, and the servant was convicted
and transported (s) . A servant who opened the front
door and let a man in who stole the plate in a side-
board, the position of which was pointed out by him,
was held guilty of burglary by all the judges and was
executed {t) .
(r) 9 Geo. 4, c. 31 ; 24 & 25 Vict. c. 100, s. 8.
(.v) R. V. Gray (1722), 1 Stra. 485.
(0 CormvcUl's case (1731), 2 Stra. 881.
124 CRIMINAL LIABILITY OF THE SERVANT.
Larceny. — At common law larceny is the wrongful
taking and carrying away of the personal goods of any-
one from his actual or constructive possession, with a
felonious intent to convert them to the use of the offender,
without the consent of the owner. The possession is
constructive where the goods are placed by the owner
under the care of another, or where he has become
entitled to them by contract, but has not yet reduced
them into actual possession. There is also another
species of property in goods which the law recognizes,
so as to make the felonious taking of the same a larceny
from the possessor, viz., where they are in the posses-
sion of a person who has acquired an interest therein
by contract either by way of loan, pledge, hiring, or the
like. A distinction was very early taken between a
possession and a charge, the former, as when goods are
delivered to a stranger for a particular purpose, being
considered to invest such person, termed the bailee,
with a qualified property in those goods ; the latter, as
when goods are in the custody or under the care of
servants, being considered not even to invest the
servant with the possession, but to leave the entire
possession, as well as property, in the master. If the
servant, therefore, feloniously makes away with any of
tliem he would be guilty of larceny.
The following are a few examples of acts by servants
which have been held to be larceny : — A carter going
away with his master's cart (w) ; a servant entrusted
with money to get changed or deposited with a banker,
and applying it to his own use (x) ; the manager of a
])ranch bank after putting money received in the safe
appropriating it to his own use (y) ; a banker's clerk
taking notes from the till under pretence of paying a
(u) It. V. Itohinson (1755), 2 East P. C. 565.
(x) 1 Lead), 102 ; 2 Leach, 870, 943.
(y) Bey. v. iVnylU (1888), 27 L. J. M. C. 65.
LAECENY. 125
cheque from a third person, which cheque he obtained
by having entered in the books a fictitious balance in
favour of that person (z) ; a banker's clerk sent into the
money room to bring up a sum of cash, taking the
opportunity to secrete some for his own use {a) ; a
tradesman's porter sent with a parcel to deliver it to a
customer opened it and took out some of the contents,
which he sold, and pocketed the money (6) ; a clerk not
residing in the house received from his master a bill
of exchange in the usual course of business, with
directions to transmit it by post to a correspondent :
instead of so doing he obtained cash for it, which he
appropriated to his own use (c) ; and a clerk who
managed his employer's financial business took an
unindorsed bill, got it discounted, and absconded with
the money, was held guilty of larceny, notwithstanding
the objection that by the course of business he had a
right to get the money for the bill, and therefore could
not legally be indicted for stealing the bill itself (d).
In these cases the property was in the actual posses-
sion of the master at the time of the taking by the
servant, but if the possession by the master had been a
legal or constructive one only it would have been equally
larceny, e.g., a cornfactor having purchased a load of
oats on board a ship sent his servant with a barge to
receive part of the oats in bulk : the servant ordered
some of them to be put into sacks, which he afterwards
appropriated (e). And again, where property which the
master had bought was weighed out in the presence of
his clerk and delivered to his carter's servant to cart,
who allowed other persons to take away the cart and'
(z) E. V. Hammon (1S12), 4 Taunt. 304.
(a) R. V. Murray (1784), 1 Loach, 344.
(h) R. V. fi^^s•.s• (1782), 1 Leach, 251.
(r) R. y.Paradice (1766), 2 East P. C. 565.
{(/,) Chipchme's case (1795), 2 East P. C. 567.
(e) R. V. Spears (1798), 2 East P. C. 56
120 CRIMIX.VL LIABILITY OF THE SERVANT.
dispose of the property for their mutual benefit, it was
held that the carter's servant was not guilty of a mere
breach of trust, but that he, as well as the others, was
guilty of larceny (/).
It was not, however, larceny at common law if a
servant appropriated goods coming into his hands for
the use of his employer, of which the master had had
neither actual nor legal possession. Therefore a shop-
man who received money from a customer and secreted
it instead of putting it into the till (g), a banker's clerk
who appropriated money received at the counter instead
of putting it into the proper drawer (h), were both held
not guilty of larceny. But if the money had been put
into the till or drawer, the subsequent taking would
have been felonious. Also a servant sent to get change
for a note and then making off with the money was not
guilty of larceny at common law (i) . And a clerk sent
to pay for an advertisement for which he had received
51., paid 6s., and charged his master 21. 10s. 6d.,
pocketing the difference, was released after being
charged with embezzlement, after the case had been con-
sidered by twelve judges (k). And until a special Act (/)
was passed to meet such cases, a servant was liable to
be found guilty of larceny for taking the property of his
master though not for his own, but rather for his
master's advantage. For example, a servant who
clandestinely took his master's corn, though to give to
his master's horses, was convicted of larceny (m). By
the statute just mentioned this is no longer a felony, but
is punishable on summary conviction before two justices.
{/) /?. V. Hardinq (1807), Russ. & Ry. 125.
(</) R. V. BhU (1797), 2 Leach, 841.
(/() n. V. Bazdey (1799), 2 P^ast P. C. 571 ; 2 Leach, 835.
(/) R. V. Sulltm (1826), 1 Moo. C. C. 129.
[k) R. V. Murray (1830), 5 C. & P. 146 n.
(/) 26 & 27 Vict. c. 103, s. 1 [1863].
(m) R. V. Morfil (1816), R. & R. C. C. 307.
EMBEZZLEMENT. 127
Embezzlement — Larceny Act, 1861. — To prevent the
miscarriage of justice, such as arose in the cases just
referred to, more especially B. v. Bazeley (n), the
Embezzlement Act (o) was passed. This statute was
repealed by the Statute Law Kevision Act of 1861 {p),
and the law regarding larceny and embezzlement by
servants laid down in the Larceny Act, 1861(3-),
Section 57 of that statute enacts that " Whosoever
being a clerk or servant, or being employed for the
purpose or in the capacity of clerk or servant, shall
steal any chattel, money, or valuable security belonging
to or in the possession of or power of his master or
employer, 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
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, and if a male under the age of sixteen
years, with or without whipping." And by section 68,
" 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 valu-
able security, which shall be delivered to or received or
taken in possession by him for or in the name, or on
the account of his master or employer, or any part thereof,
shall be deemed to have feloniously stolen the same from
his master or employer, although such chattel, money,
or secm-ity was not received into the possession of such
master or employer otherwise than by the actual posses-
sion of his clerk, servant, or other person so employed,
and being convicted thereof shall be liable at the
(n) n. V. Bazeley (1799), 2 Leach, 835.
(o) 3!) Geo. 3, c. 85.
{/>) 24 & 25 Vict. 0. 95. •
iq) 2i & 25 Vict. c. 96, ro-enacting 14 & 15 Vict. c. 100, s. 13.
128 CEIMINAL LIABILITY OF THE SERVANT.
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 exceed-
ing two years with or without hard labour, and with or
without solitary confinement, and if a male under the
age of sixteen years, with or without whipping."
Definition of Embezzlement. — There are three con-
ditions, therefore, necessary to make the offence of
embezzlement (/•) : —
1. The offender must be a clerk or servant, or em-
ployed in the capacity of a clerk or servant.
2. He must receive or take into his possession some
chattel, money, or valuable security for or on
account of his master (.s) .
3. He must fraudulently embezzle the same.
By section 72 of the Larceny Act, a person indicted
for embezzlement is not to be acquitted if the offence
turn out to be larceny and vice versa. But if he being
indicted for stealing were convicted of larceny on
evidence showing him guilty of embezzlement he will
escape, though on the same evidence on the same indict-
ment he might have been convicted of embezzlement {t).
Section 78 enacts that clerks wilfully assisting factors
in obtaining illegally advances on the property of their
principals, are guilty of a misdemeanor, and being con-
victed thereof, shall be liable to the same punishment.
By Bussell Gurney's Act{ii), 18 & 19 Vict. c. 126 {x)
was extended to embezzlement by clerks or servants.
The persons intended to be reached by the Larceny
Act are those filling the ordinary situation of clerks or
(r) See Lord Ellenborocou's jutlgmcnt in R. v. Johnson (181.5),
3 M. & 8. 548.
(«) 7.V</. V. Thorpe (18,58), 27 L. J. M. C. 264.
U) h'('</. V. (/orlnU (18.57), 26 L. J. M. C. 49.
(«) 3l'&32 Vict. c. 116, R. 2.
(x) Repealed and replaced "by the Suniniary Jurisdiction Act, 1879
(42 & fi Vict. e. 49).
EMBEZZLEMENT. 129
servants, and having masters to whom they are account-
able for the discharge of the duties of their situation {y).
The article embezzled need not now, however, be re-
ceived by the servant in virtue of his employment, those
words having been designedly omitted from the Act of
1861. Therefore the absence of authority to receive
money or other valuables will not, as formerly, prevent
a conviction being obtained (z).
The Act includes female servants (a), apprentices (h),
and travellers (c) .
Neither the nature of the wages nor the duration of
the employment is material, but the relation of master
and servant must exist (d). Hence difficulties some-
times arise in deciding whether a person can really be
considered the servant of him by whom he is employed.
The following cases illustrate this point : —
A man hired by a market gardener to do a day's work,
who was requested by his employer to take some vege-
tables to market and sell them and bring back the
produce, w\as held to be a servant (e). A superintendent
of police appointed under statute (/) by a chief con-
stable is the servant of the chief constable, and may be
convicted of embezzlement (g) . But a person intrusted
with goods for sale and paid by a commission upon the
amount received, is not a clerk or servant within the
statute (h) . And a person employed by an overseer to
iy) Bayley, J., in Williams v. Stott (1833), 1 Cr. & M. G8.j.
(z) B. V. Hawtin (1836), 7 C. & P. 281 ; R. v. Mellish (ISOo), R. &
R. C. C. 80; 7?. v. Snowly (1830), 4 C. & P. 390.
(a) R. V. Smith (1823), R. & R. 267.
{h) R. V. Mellish (1805), R. & R. 80.
(c) R. V. Carr (1811), R. & R. 108.
(d) R. V. Aldlish (1805), R. & R. 80 ; R. v. Beechey (1817), R. & R.
319.
(e) R. V. Spencer (1815), R. & R. 299.
(/) 2 & 3 Vict. c. 93.
(g) Req. V. Baxter (1851), 5 Cox C. C. 302.
(h) Reg. v. Miller (1850), 4 Cox, 166 ; and seo R. v. Murphy, 4 Co.k,
101.
M. & S. K
130 CRIMINAL LIABILITY OF THE SERVANT.
collect the poor rate and keep the books has also been
held not to be a clerk or servant within the Act, and to
have been improperly convicted of embezzlement (i) .
The clerks or servants of corporations are within
the Act [j), and it is not requisite that a person
employed as the clerk of the corporation should have
been appointed under the common seal (k) .
A servant in the employment of two partners is the
servant of each ; and if he embezzle the private money
of one, he may be indicted as that partner's servant (1).
And a traveller employed by several houses upon com-
mission to collect debts was held to be the servant of
each {m) .
Since the money or other valuables must be received,
" for or on account of his master," money received from
the master himself, or constructively from the master
by the hands of another clerk {n), has been held not
embezzlement but larceny.
It is not necessary to support the char^^e of embezzle-
ment that the actual money received should be appro-
priated by the offender. For instance, after some
uncertainty it was decided by a majority of judges that
an indictment could be sustained against a clerk for
embezzlement of the difference between the sum actually
received by him and that entered in his book, when
the identical bank notes received by him had been
actually paid over to his employer upon that and other
accounts (o) .
It is an indictable offence to incite and solicit a
servant to rob his master, though the servant does not
(i) Eeq. V. Harris (lSn.3), 69 L. T. 2.') ; 57 J. P. 729.
(/) Williams v. Slot! (1S.3.S), 1 Cr. & M. G85.
(k) R. V. WttJIiniis (1S24), 1 C. k P. 457.
(I) R. V. Learh (1821), 3 Stark. 70.
(m) n. V. Cnrr (181 1), R. & R. 198.
{„] /,'. V. .l/»/-mv (ls:^0). R. & U. C. C. 276; 5 C. & P. 146.
(o) /.'. V. Hall (1821), .3 Stark. 67 ; R. v. Tyre.e. (1869), 38 L. J.
M. C. 58 ; 19 L. T. 657 ; 1 C. C. R. 177 ; 17 W. R. 334.
EMBEZZLEMENT. 131
Steal anything, and no act be done, except the inciting
and sohciting (|)).
A master has no right to open or search the property
of his servant. If he suspects his servant of being a
thief, and of having secreted the stolen article in his
box or other property, the proper course for him to
pursue is to apply for a search vv^arrant, or at least call
in a constable (q).
(p) R. V. Iliijqins (1801), 2 East, 5.
{q) Brown V. Chapman {ISi^), 6 C. B. 365; Daris v. Rtmell (1829),
5 Bins. 354.
( 132 )
CHAPTEE XIII.
Chaeactee.
General statement of the law. — A master is not
obliged to give his servant a character. If he does give
a character it is between master and master a privileged
communication unless there is express proof of malice.
To make a prima facie case of maHce the circum-
stances must be more than consistent with a malicious
purpose on the master's part, they must point in some
slight degree at least to malice, or the judge will not
allow the case to go to the jury, but will rule that it is
a privileged communication, and enter a non-suit ; but
if there is a^jriwa/acfe case of malice, it is for the jury
to decide whether the master was actuated by malice
or not.
To enable a servant to maintain an action he must
allege and prove either
(1.) Special damage, i.e., some definite injury result-
ing from what the master has said, or,
(2.) The words used must be actionable in them-
selves.
We may now consider the decisions which support
these propositions.
Master not bound to give a character. — In the
absence of an agreement a master is under no legal
obligation to give his servant a character, however
great the moral obligation may be to do so. This has
been always recognized since Lord Kenyons decision in
Carol V. Bird (/•), when he said, " By some old statutes
regulations were established regulating the characters
(r) Carol v. Bird (1800), 3 Esp. 202.
CHAEACTEE. 133
of labourers, but that in the case of domestic and
menial servants there was no law to compel the master
to give the servant a character; for, it might be a duty
which his feelings might prompt him to perform, but
there was no law to enforce the doing of it." The
reason for this rule is to be found in the consideration
that if a master were compelled to give a character, it
would necessarily follow that he must be held to the
proof of the character he gives. The burden then cast
on the master would often give rise either to much
litigation on the one hand or to the giving of false
characters on the other.
Character given a privileged communication unless
malicious. — The law, regarding malice or ill-will as the
only reason a master can have for giving his servant a
false character, has laid down that no action will lie
against a master for giving (in answer to inquiries on
the subject) an unfavourable, or even false character of
his servant, if done bond fide and without malice, for it
is a privileged communication. This is well illustrated
in an old case (s) tried before Lord Mansfield, where
A., a servant, brought an action against her former
mistress for saying to a lady who came to inquire for
her character, that she was saucy and impertinent and
often lay out of her bed at night, but was a clean girl,
and could do her work well. Tliough A. proved that
she was by this means prevented from getting a place,
yet she was unsuccessful. Lord Mansfield saying,
" This is not to be considered as an action in the
common way of defamation by words, but that the gist
of it must be malice, which is not implied from the
occasion of speaking, but should be directly proved.
That it was a confidential declaration and ought not to
have been disclosed." And two years after it was laid
(s) Edmondson v. Stevenson (1766), Bull. N. P. 8.
184 CHARACTER.
down in another case (t) that where a person intending
to hire a servant, appHes to the former master for his
character, the master (except express maHce is proved)
shall not be obliged to prove the truth of the character
he gives, for in such case the disclosure is not made
ofhcially, but in confidence, and the facts may happen
to rest only in the knowledge of the master and servant,
and the same judge said it was so settled, and that he had
frequently ruled it so at nisi prius. And again a few
years later it was decided that a servant cannot maintain
an action against his former master for words spoken, or
a letter written, in giving a character of the servant,
unless the servant prove the malice as well as the
falsehood of the charge, even though the master make
specific charges of fraud (ii). In this case the letter
was written to the plaintiff's brother-in-law in reply to
an application from him. The court held that an
action would not lie, and BuUer, J. added " This is an
exception to the general rule (in regard to libels) on
account of the occasion of writing the letter. Then it
is incumbent on the plaintiff to prove the falsehood
of it. And in actions of this kind, unless he can prove
the words to be malicious, as well n^ false, they are not
actionable. On this case, it evidently appears that the
defendant has been entrapped, because the letter was
written on the application of the plaintiff's brother-in-
law." In a similar case (x) it was held that where a
written character has been procured by means of a
letter, written ostensibly with a view to inquire the
servant's character, but in reality to entrap the master
into a libellous answer, which might be used as the founda-
tion of an action for libel, an action cannot be maintained.
(() Lowry v. Akenhead (1768), Bull. N. P. 8. See also Haryrave v.
Le Brtton, 4 Bur. 2425.
(k) Weadif.rdon v. Haiolcins (1786), 1 T. R. 110; Sirm v. /^iwr/er (1824),
1 C. & P. 279. [x) KiiKj V. Waring (1803), 5 Esp. 13.
MALICE. 135
A direct accusation of thieving in the presence of
other persons has been held a privileged communica-
tion. For instance, a servant had left his master's
house, having been dismissed on a charge of theft, and
was afterwards discovered by the master in communi-
cation with the other servants, whereupon the master
addressing his servants, said, "I have dismissed that
man for robbing me, do not speak to him any more in
public or private, or I shall think you as bad as he", (|/).
And again (a) , a master having refused to give his shop-
man a character was applied to by the brother of the
servant for his reason, when he said, " I believe he has
robbed me for years, and I can prove it by the circum-
stances under which he was discharged.',' That was
held a privileged communication, although the servant
had been dismissed upon a charge of one theft only.
When the question of malice may be submitted to
the jury. — Before the question of malice can be sub-
mitted to the jury the evidence must raise a probability
of malice and he more consistent luith its existence than
its non-existence (y). If therefore, the occasion upon
which the words are spoken is such as to repel the
presumption of malice the communication is prima
facie privileged, and it lies upon the plaintiff to show
by evidence that the defendant was influenced by
actual malice. If he fails to do so, the judge at the
trial ought not to leave the question to the jury, but to
direct a verdict for the defendant. In the words of
Denman, C.J., in Kelly v. Partington (b), "Where it
is clear that the words complained of are nothing more
than a communication from one master to another
informing him of the character of a servant, the case
(!/) Somernlle v. Ilaickins [ISol], 20 L. J. C. P. 133; IOC. B. 583;
15 Jur. 450.
(a) Tay/orv.I{airHn.'i(\So\),20L..l.Q.B. 313; 16Q.B. 308; 15 Jur. 746.
(6) Kelly v. Partington (1833), 4 B. & Ad. 700.
136 Cn.\EACTER.
certainly ought not to go to a jury. But where there
are other circumstances from which maHce may be
inferred, the question is for them to decide." In this
case a shopwoman was charged by her master of theft
to a person who inquired her character. The charge
was repeated to a relative of the discharged servant,
who called to ask for an explanation and to clear up
the accusation by reference to a wage book kept by the
master. The relative's explanations were met with a
contemptuous grin and a refusal to show the book.
The court decided that there was evidence of malice
and refused a non-suit.
Circumstances from which a jury might infer malice,
and lead them to give a verdict for the servant against
the master, are well illustrated by the case of Bogers v.
Clifton (c), where the master having refused a month's
wages in lieu of warning, turned his servant out of the
house, and then officiously stated his misconduct to a
former master in order to prevent him giving a second
character, and then himself, on being applied to, gave
the servant a bad character, the truth of which he was
unable to prove when challenged by the servant, who
brought evidence in support of his contention that no
such charges as those contained in the master's state-
ment were ever brought against him whilst in his
service. And again, where a master without being
applied to, in order to prevent the servant from
obtaining a situation, volunteered to give information
regarding his character, afterwards wrote a second
letter containing Hbellous reflections on the servant,
which he was imable to prove, the jury found for the
servant {d). An application was made for a new trial,
but the court unanimously refused to grant it. The
(r) Bogers v. Clifton (180.3) 3 B. & P. 587.
(d) PcUtison V. Jones (1828), 8 B. &C. 578 ; Fryer w Kinnerslci/ {18S4),
33 L. J. C. P. 98 ; 15 C. B. (n.s.) 422; 9 L. T. 415), 12 W. R. 155; 10 Jur.
(N.s.)441.
MAIilCE. 137
remarks of Bayleij, J. in his judgment so clearly explain
the law that they are worth quoting at some length : —
" Generally speaking, anything said or WTitten by a
master when he gives the character of a servant is a
privileged communication. If a servant therefore
charge a master with publishing a libel, it is competent
to the latter, to prove that the alleged libel was written
under such circumstances as to make it a privileged
communication, and thereby throw on the plaintiff the
necessity of showing that it does not come within that
protection which the law gives to a privileged communi-
cation. But if the supposed libel be not communicated
bond fide, it does not fall within the protection which
the law extends to privileged communications. Here
the second letter of the defendant was written in
answer to one calling upon him to give an account of
the plaintiff's conduct, but the defendant wrote his fkst
letter without being called upon to do so. I do not
mean to say that in order to make libellous matter
written by a master privileged, it is essential that the
party who makes the communication should be put in
action in consequence of a third party putting questions
to him. I am of opinion that he may, when he thinks
another is about to be taken into his service, one whom
he knows ought not to be taken, set himself in motion,
and do some act to induce that other to put questions
to and seek information from him. The answers to
such questions given bond fide, with the intention of
communicating such facts as the other party ought to
know, will, although they contain slanderous matter,
come within the scope of a privileged communication,
but in such a case it will be a question for a jury,
whether the defendant has acted bond fide, intending
honestly to discharge a duty ; or whether he acted
maliciously, intending to do an injury to the servant.
In forming their judgment, the jury were bound to take
138 CHARACTER,
into their consideration the fact of the defendant voUm-
tarily putting himself into motion, and thereby in effect
having by the first letter desired questions to be put to
him. These questions were put and gave occasion to the
second letter. The question for the jury to consider was
whether the defendant acted honestly and Jiojid fide in
making the representation contained in that letter.
The jury had that question submitted to their considera-
tion, and they were of opinion that the communication
was not made bond fide, but that it was made with the
intention to injure the plaintiff, and if it was made with
that intention, it was not a privileged communication,"
and Littledale, J. added, " Upon the question, whether
a master who has written a libel inquiring the character
of a servant has acted bond fide, or not, it may make a
very material difference, whether he volunteered to give
the character, or had been called upon to do so. At all
events when he volunteers to give the character
stronger evidence will be required that he acted bond
fide than in the case where he has given the character
after being required to do so."
In another case (e) a governess brought an action
against her late employer for giving a false character to
a lady who was about to engage her. The plaintiff
adduced evidence to contradict the statements made by
the defendant, who produced no evidence in support of
her account of the dismissal. Lord Denman left it to
the jury to say whether, considering the whole case, the
defendant had knowingly made false statements con-
cerning the plaintiff and therefore had been guilty of
malice. The jury found a verdict for the plaintiff, and
subsequently an application for a new trial was refused.
In a curious case (/) a rector issued a pastoral letter
•containing grave reflections on the character of a
(e) Fonntnin v. Boodle (1842), 3 Q. B. ,5 ; 2 G. & D. 4,5.5.
(/) Gilpin V, Fo^vler (1854), 23 L. J. Ex. 152 ; 9 Ex. 615 ; 18 Jur. 292.
SUMMABY. 139
schoolmaster he had discharged and urging parents in
the most solemn manner not to send their children to a
school he had set up. The court held that this letter
was not a privileged communication, and that the
circumstances were such that the question of malice
should be submitted to a jury.
Summary. — To sum up then, malice will be inferred
and the master will be responsible in an action of
damages for the same where the injurious statement
has been made under circumstances tending to show
that the master was actuated, not by an anxiety faith-
fully and truly to reply to the inquiries made by the
proposed new master, or to put him on his guard
against some evil disposed person, but by a desire to
injure the servant ; as if the master officiously state to
a former master any trivial misconduct of the servant
in order to prevent his giving a second character, and
on being himself applied to, give the servant a bad
character which is proved to be false ig) ; or if the
master, without being applied to, in order to prevent
the servant from obtaining a situation volunteer to give
an unfavourable character the truth of which he is
unable to prove (li) ; or where in answer to inquiries
the charges of misconduct have been coupled with
expressions of vindictiveness, and there is no proof of
the truth of the imputations (i) ; or when statements
are made regarding the character of the servant to a
person wishing to engage her are not only unsupported
by evidence but are also contrary to what is proved to
have actually occurred {k).
Communication of second-hand knowledge may be
priYileged. — A master may be justified in answer to
ig) Rogers v. Clir/on. (1803), 3 B. & P. 587.
(h) Pattitson v. Joues (18'28), 18 B. & C. 578.
{i) Kelly v. Partington (1833), 4 B. & Acl. 780.
(k) Fountain v. Boodle (1842), 3 Q. B. 5.
140 CHAllACTER.
inquiries regarding the character of his servant in
stating not only what he knows of his own personal
experience and observation, but also with the knowledge
of which have been communicated to him and which he
believes to be true, and in justice to the applicant ought
to be made known to him. This was decided in an
important case (l), which is worth some little attention,
for it shoivs lioio loide a privileged communication may
extend in matters of this kind, and lioio rigorous the
court is disposed to he in requiring express proof of
malice, and how little ready it is to infer malice if the
facts are capable of explanation on the assumption
of its absence. The facts of the case were as
follows : — The defendant's wife in answer to inquiries
respecting her servant's (the plaintiff) character wrote —
" Mrs. Affleck's compliments to Mrs. S., and is sorry
that in reply to her inquiries respecting E. Child,
nothing can in justice be said in her favour. She lived
with Mrs. A. but for a few weeks, in which time she
frequently conducted herself disgracefully ; and Mrs. A.
is concerned to add she has since her dismissal been
credibly informed she has been and is now a prostitute
at Bury." Mrs. Affleck afterwards went to persons
who had recommended the plaintiff to her, and made a
similar statement to them. The plaintiff having been
nonsuited by Lord Tenterden, he being of opinion that
the latter part of the letter was privileged, and that the
other communications being made to persons who had
recommended the plaintiff, were not evidence of malice,
and a new trial being moved for the court unanimously
refused it, two judges {Baylcy and Littledale, JJ.)
instead of regarding the latter part of the letter as
indicative of malice, going so far as to say that Mrs.
Affleck would not have done her duty had she withheld
the information. Parke, J., in his judgment, said
(0 Child V. AiJlcchs et Ux (1829), 9 B. & C. 403 ; 4 M. & Ry. 388.
SECOND-HAND DJFOBMATION. 141
" The rule laid down by Lord Mansfield in Edmondson
V. Stevenson (m), lias been followed ever since. It is
that in actions for defamation in giving a character of
a servant, the gist of it must be malice, which is not
implied from the occasion of speaking, but sJioidd be
directly proved. The question then is whether the
plaintiff in the case adduced evidence, which if laid
before a jury, could properly lead them to find express
malice. That does not appear upon the face of the
letter. Prima facie it is fair, and undoubtedly a person
asked as to the character of a servant may communicate
all that is stated in that letter. Independently of the
letter there was no evidence except of the two persons
who had recommended the plaintiff. The communica-
tion to them therefore was not officious, and Mrs.
Affleck was justified in making it. In Bogers v.
Clifton (») exadence of the good conduct of the servant
was given, and the communication also appeared to be
officious. Here the letter was undoubtedly ^riwa facie
privileged, the plaintiff, therefore, was bound to prove
express rnalice, in order to take away the privilege."
The fact of a master having given a sei"vant a good
character does not preclude the communication of infor-
mation adverse to the servant which comes to the
knowledge of the master snbseqiientlij. This is well
illustrated by the case of Gardners. Sladeand Wife (o).
The facts were as follows : — A domestic servant about
to enter the service of A., referred A. for her character
to the defendant, her former mistress, who, being
unwell at the time, her husband answered the inquiries
of A., and gave the plaintiff a good character, and, in
consequence, A. took the plaintiff into her service.
{m) Edmondaon v. Stevenson (1766), Bull. N. P. 8.
[n) Ko(jers v. Clifton (1803), 3 13. & P. o87.
(o) Gardner V. Slade and Wife (1849), 13 Q.B. 790, 18 L..J.Q.B. 334;
Cf. Harris v. Thompson (1853), 13 C. B. 333.
142 CHAEACTEB.
The defendant, on her recovery, wrote to A. on other
matters, and in her letter said she had lately been
imposed on in her kitchen. This letter occasioned
further inquiries to be made by A. of the defendant as
to the plaintiff's character, and the defendant in answer
to these inquiries spoke the words complained of, viz.,
that she suspected the plaintiff of dishonesty. It was
held that the defendant was bound to correct any error
as to the plaintiff's character into which she supposed
A. to have been led by the answer to her first inquiries ;
that the words were spoken under such circumstances
as prima facie to be privileged. It was also held that
the fact that the defendant alluded to the plaintiff and
induced further inquiries about her were not evidence
of malice.
A master having dismissed two servants for theft
told each of them that he was dismissed because with
the other he had robbed him. The master was held
not to have spoken maliciously (p).
Statements to third parties. — Words addressed to a
servant inipugiiiiig his character, although uttered in
the presence of a third person, may, nevertheless, be a
privileged connuunication. This is illustrated by the
case of Toogoodv. Spijriiuj (q), which also presents side
by side communications some of which were held to be
privileged and others not privileged. A tenant of a
farm, A., had some repairs done by C. at the instance
of B., the landlord's agent. The work was badly done,
and A. accused C. in the presence of a third j)arty, D.,
of drunkenness and dishonesty, and also complained to
B. These communications of A. were held to be
privileged. Afterwards A., in the absence of C, told
I), that he was certain C. had broken into his cellar.
This statement was, on the contrary, not privileged.
(p) Manhyv. frzV<(1886),2r)L.J.C.r.294; 18C.B.544;2Jiir.(N.s.)1004.
(q) Toogood v. Spyriiuj (1834), 1 C. M. & R. 193 ; 3 L. J. Ex. 347.
STATEMENTS BY THIRD rABTIES. 143
No fiction is maintainable for words spoken to a
jjoliceman on giving a servant in charge, or when pre-
ferring a complaint before a magistrate (r).
Statements by third parties regarding a servant's
character may be privileged, e.g., a tenant wrote to his
landlord making serious accusations against a man who
was applying to be made his gamekeeper : the letter
was privileged (.s). The mate of a ship wrote to a
friend reflecting on his captain's conduct. This friend,
notwithstanding the mate's request that he would not
do so, showed the letter to the owner of the ship and
the captain was in consequence dismissed. Thereupon
the captain brought an action against the friend of the
mate, who was unable to justify the statements con-
tained in the letter. The jury found for the defendant,
and on appeal the court was equally divided as to
whether it was a privileged communication. The
defendant here had no personal interest in the subject
matter of the libel, and therefore, did not come under
the rule laid down in the well-known case of Harrison
V. Busli (0- An elector wrote to Lord Palmerston, the
then Home Secretary, seriously impugning the conduct
of a local magistrate during the election. The magistrate
failed in an action for libel which he brought against the
elector because his letter, being written with a good
intent and in discharge of what he believed to be a public
duty, was held to be privileged. During the trial counsel
propounded a legal canon which was adopted by the
court through Lord Camphell, C.J., to the effect that
" a communication made hond fide on any subject
matter in which the party communicating it has an
interest, or in reference to which he has a duty, is
(»•) Johnson v. Erans (ISOO), 3 Esp. 32.
(.s) Cockayne v.'Hodcikinson (1833), 5 C. & P. 543. See also Coicles v.
Poff.s (1865) 34 L."J. Q. B. 247 ; 11 Jur. (n.s.) 946; 13 W. R. 858.
{t)HarriMny.Bush(lSo(i),25h.J.Q.B.2o;5E.&.B.3U;lJuv.(s.s.)84:Q.
144 CHAEACTER.
privileged, if made to a person having a corresponding
interest or duty, although it contains criminatory
matter, which without this privilege would be
slanderous and actionable."
A shipping insurance society wrote to the owner of
a vessel saying that if he gave the command to a
particular person, whom they beheved to be of drunken
habits, they should refuse to continue to insure the
vessel. This communication was held to be privileged.
The representation made by the insurance society was
clearly one made in the conduct of their oM'n affairs
and in matters in which their own interest was
concerned {it).
Nature of malicious statement. — Assuming then
that the master is animated by malice or ill-will in the
statements he makes regarding his servant's character,
we have next to consider what must be the natm-e of
the words used so as to found the basis of an action.
The words must either be actionable in themselves, or
if not so must have caused special damage.
Special damage, i.e., some actual definite injury to
the servant. The courts have not been too ready
to attribute the damage complained of to the words
spoken, and the special damage must be shown to be the
legal and natural consequence of the slander (x) . This
is often a matter of greater difficulty than might be
imagined, for there may be circmnstances coincident
with the words spoken which might account for the
damage suffered, and in such cases there has been a
tendency on the part of judges to refuse to assume that
the damage is the result of the slanderous statements.
A girl employed in straw bonnet making who was
(ii) Ilamon v. Falh (1879), L. R. 4 App. Cas. 247 ; P. C.
(x) Virarfi v. Wilcock (180G), S East 1 ; 2 Smith's L. C. 487 ; Kelly v.
Partinrjtm (1833), 4 J3. & Ad. 7U0.
SPECIAL da:\iage. 145
■dismissed by her employer as the result of reflections
made upon her character by the landlord of the house
in which she lodged, was successful in an action she
brought against her employer for special damage she
had suffered in consequence of the dismissal (?/).
It has been held that a servant has no right of action
against his master for endorsing a written character he
brought with him when he entered the service {z).
Though on the contrary a cabdriver may bring an
action against his master for endorsing his licence
under the statute 6 & 7 Vict. c. 86, s. 21 [a).
In a case (6) carried to the House of Lords, Lord
Wensleydale remarked: " To make the words actionable
by reason of special damage, the consequences must be
such as, taking human nature as it is, with its
infirmities, and having regard to the relationship of the
parties concerned, might fairly and reasonably have
been anticipated and feared would follow from speaking
the words, not what would reasonably follow, or we
think ought to follow. ... In the case of Vicars
V. Wilcocks (c) I must say that the rules laid down by
Lord Ellenhorough are too restricted. I cannot agree
that the special damage must be the natural and legal
consequence of the words, if true."
The words actionable in themselves. — If no special
damage can be shown the words must he actionable in
themselves. To be so they must impute some criminal
offence, some contagious disease, dishonesty, or immo-
rality, or make some charge affecting the servant in his
capacity of servant, i.e., connected with his occupation.
Calling a bailiff a cozening knave {d), accusing a ship-
[y) Knight v. Gihhs (1834), 1 A. & E. 4.3.
(z) Taylor v. Rowan (1835), 1 U. & R. 490; 7 C. & P. 70.
(o) Hurrell v. Ellis (184')), 2 C. B. 295.
(b) Lynch v. Kniijht (18()1), 9 Ho. L. C. 577.
(c) Vicars v. Wilcocks (1806), 8 East, 1; 2 Smith's L. C. 487,
(d) Seaman y. Biijtj (1638), Cro. Car. 480.
M. & s. L
14G CHARACTER.
master of being drunk when in charge of his ship (e),
saying that a gamekeeper killed foxes (/), are instances
of words which have been held jj^r se actionable.
Giving a false character. — If a master recommend
a servant to another employer by giving him a false
character, and that employer suffer damage in conse-
quence, he may recover his damage from the former
master (g), and this although the recommendation is
given without malice or from pecuniary interest (/?).
A schoolmaster who for the purpose of obtaining a
situation uttered a forged testimonial as to character,
knowingly and with intent to deceive, was con-
victed of a misdemeanor at common law (i). And a
policeman was found guilty of forgery at common law
for forging and uttering to the chief constable, who had
the power of appointment to the situation, letters con-
taining a false account of himself and recommending
himself as a person of upright character with a view to
getting the situation of police constable (k) .
In an action by a governess for breach of an agree-
ment in writing, in which she was described as " M. K.,
sj)inster," and by which the defendant undertook that
she should be employed for a term of three years, it was
pleaded that the plaintiff intending to induce the
defendant to enter into the contract, concealed from
him a fact material to her qualifications as such
governess, and material to be known by the defendant
in engaging her as such governess, viz., that she had
previously been married, and that the marriage had
been dissolved by decree of the Divorce Court. It was
{(■) Irwin V. Brandwood (1864), 33 L. -T. Ex. 257 ; 2 H. & C. 960.
( /■) Fonfi/er v. Newcomh (1867) 36 L. J. Ex. 169.
{<!) Wilkin v. Read (1854), 15 C. B. 192 ; 23 L. J. C. P. 193.
(/() Fodtr V. Charle.-i (18.30), 6 liing. 396 ; 7 Bing. 105 ; 4 M. & P. 741.
{i) Beq. V. Sharman (1854), 23 L. J. M. C. 51 ; 6 Cox. 212; 18 Jur. 157.
(k) Rei,. V. Moah (1858) 27 L. J. M. C. 204; 1 1). & B. 550; 4 Jur.
(N.s.)464.
SERVANTS CHAEACTERS ACT, 1792. 147
held that the plea was bad, as there was no allegation
of fraud, and the mere non-disclosure of a material
fact was, except in the case of policies of insurance, no
answer to an action upon a contract. And Blackbur?i, J.,
said : " If a servant turns out to be unfit for his duties
he may be discharged, but if he is able and willing to
perform his duties he may enforce the contract of
service, except where he has been guilty of moral fraud.
This is an attempt to apply the law of insurance to
that of master and servant, for which there is no
authority " (l).
Servants Characters Act, 1792. — The common law,
however, was long ago regarded as being very
inadequate to cope with the giving and using of false
characters for the purpose of deceiving third persons,
and in consequence, in 1792 (m), a statute was enacted
entitled, "An Act for preventing the counterfeiting of
certificates of the characters of servants." After
reciting " that many false and counterfeit characters of
servants have either been given personally or in writing,
by evil disposed persons, being, or pretending to be, the
master, mistress, retainer, or superintendent, of such
servants, or by persons, who have actually retained
such servants in their respective service, contrary to
truth and justice, and to the peace and security of His
Majesty's subjects ; and that the evil complained of is
not only difficult to be guarded against, but is also of
great magnitude and continually increasing, and no
sufficient remedy has hitherto been applied," it is
enacted : —
Section 1. If any person or persons shall falsely
personate any master or mistress, or the executor,
administrator, wife, relation, housekeeper, steward,
(I) FJrtrhcr v. Krell (1873), 42 L. J. Q. B. 55 ; 28 L. T. 105.
(m) 32 Geo. 3, c. 56.
L 2
1-18 CHARACTER.
agent or servant of any such master or mistress, and
shall cither personally or in writing give any false,
forged or counterfeit character to any person offering
himself or herself to be hired as a servant into the service
of any person or persons, then and in such case every
such person or persons so offending shall forfeit and
undergo the penalty or punishment hereinafter
mentioned.
Section 2. 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 what-
soever other than that for which or in which he, she or
they shall have hired or retained such servant in his,
her or their service or employment, or for the service
of any other person or persons, that then, and in either
of the said cases, such person or persons so offending
as aforesaid shall forfeit and undergo the penalty or
punishment hereinafter mentioned.
Section 3. 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 he 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 undergo the penalty or punishment herein-
after mentioned.
Section 4. If any person shall offer himself 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
counterfeit 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
SERVANTS CHARACTERS ACT, 1792. 149
certificate given to him or her by his or her last or
former master or mistress, or by any other person or
persons duly authorized 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.
Section 5. If any person or persons having before
been in service shall, w^hen offering to hire himself,
herself or themselves 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 punish-
ment hereinafter mentioned.
Section 6. If any person or persons shall be convicted
of any or either of the offence or offences aforesaid, by
his, her or their confession, or by the oath of one or
more credible witness or witnesses before two or more
justices of the peace for the county, riding, division,
city, liberty, town or place where the offence or offences
shall have been committed (which oath such justices
are hereby empowered and required to administer),
every such offender or offenders shall forfeit the sum of
20Z., one moiety whereof shall be paid to the person or
persons on whose information the party or parties
offending shall have been convicted, and the other
moiety thereof shall go and be applied to the use of the
poor of the parish wherein the offence shall have been
committed ; and if the party who shall have been so
convicted shall not immediately pay the said sum of
20Z. so forfeited, together with the costs and charges
attending such conviction, or shall not give notice of
appeal and enter into recognizance in the manner
hereinafter mentioned and in that behalf provided,
such justice shall and may commit every such offender
to the house of correction or some other prison of the
150 CHARACTER.
county, riding, di^dsion, city, liberty, town or place in
which he or she shall have been convicted, there to
remain and be kept to hard laboiu'.
Section 8. If any servant or servants who 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.
Section 10. If any person shall think himself or
herself aggrieved by anything done in pursuance of
this Act, such person may appeal to the justices of the
peace at the next general or quarter sessions of the
peace; and no conviction or order made concerning
any matters 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 removed by certiorari, or any
other writ or process whatsoever, into any of His
Majesty's com-ts of record at Westminster {n).
{n) Sections 7 and 9 are repealed, the former by 34 & 35 Vict,
c. 116 [S. L. R. 1871], tho latter by 47 & 48 Vict. c. 43.
( 151 )
CHATTER XIV.
Appeenticeship.
Nature of apprenticeship. — Apprenticeship (from
apprendre — to learn) is a contract somewhat different
from the ordinary contract of hiring and service, for by
it one person — the master — undertakes to teach, and
the other — the apprentice — undertakes to learn some
trade or profession, and to serve his master for a
certain time. It is of the essence of the contract that
the master shall instruct. The apprentice being usually
an infant, his parent or guardian is in most cases a
party to the contract as surety for his performing his
part of the agreement, and if he fail to do so they
may be sued by the master on the covenants. The
parent or guardian cannot, however, execute the agree-
ment on behalf of the infant (o). The apprentice must
himself assent to and execute the contract, except in
the case of parish apprentices {p) . The apprenticeship
must not be to the disadvantage of the infant
apprentice, and should it be so the courts will not
assist the master in compelHng his apprentice to
continue in the apprenticeship should he desire to
terminate it (q).
Originally it was necessary for the contract of
apprenticeship to be by indenture. Now, however, no
particular form of agreeement is required, and technical
words are not necessary. It is sufficient to show that
the intention was that the master should teach and
(0) R. V. Ariiesb)/ (1820) 3 B. & Aid. r)84.
{]>) 5 Eliz. c. 4. But see P. L. 0. July 24th, 1847, Art. 67.
(q) Meakin v. Moi-ris (1883), 12 Q. B. D. 352 ; 53 L. J. M. C. 72;
48 J. P. 344 ; 32 W. R. 661 ; Corn v. Matthews, [1893] 1 Q. B. 310.
152 ArPRENTICESniP.
the apprentice should learn (;•), and even a verbal
agreement may be binding (.s) .
Historicalr — Apprenticeship appears to have been
unknown to the ancients. The Koman law makes no
mention of it, and there is no equivalent word in Greek
or Latin. Apprenticeship arose in the Middle Ages in
most of the countries of Europe in connection with the
guilds and corporations which were then so generally
formed as a means — it has been urged by some — of
protection against the feudal lords, but more obviously
for maintaining the privileges of certain bodies of work-
men engaged in skilled industries, trades, and other
occupations, and for preventing the entry into such
industries and trades of any other than those who had
gone through a long term of training in them. The
term of such apprenticeship was usually seven years.
The word apprentice was originally more widely used
than in recent times, for it was applied to professions
as well as trades. Barristers, for example, when first
appointed by Edward I., were termed apprentici ad
legem ; and the Serjeants servientes ad legem, and the
seven years standing for the degree of master at the
Universities is attributed to a similar origin.
Apprenticeship is referred to as far back as 1388,
in a statute made at Cambridge in the reign of
Kichard II. (t) ; and in the next reign it was enacted
that no one should put his child apprentice unless he
had 20s. per annum in land or rent(M)- In the
reign of Elizabeth a very important Act was passed,
known as the Statute of Apprentices (x), which made a
seven years' apprenticeship compulsory for everyone
who exercised any trade or mystery. This Act
(r) I{. V. Laindon (1797), 8 T. R. 379; R. v. Rainham (1801), 1 East,
531.
(k) R. v. hihlman (1836), 4 A. & E. 937. (0 12 Ric 2, c. 4.
\ii) 7 Hun. 4, c. 87 (1405). {x) 5 Eli/.., c. 4.
HISTOEICAL APPRENTICESHIP. 153
remained in force for more than 250 years, and
undoubtedly exercised an enormous influence on the
extension and scope of many trades and industries.
By section 20, merchants were not to take as apprentices
anyone whose father had less than 40s. of freehold per
annum. In other trades the amount was SI. per
annum (sections 22, 25). Section 24 enacted that no
one was to engage in any art, mystery or manual
occupation now in use unless he had been an apprentice
thereto for seven years. Sections 21 and 26 restricted
the number of apprentices any one person might take.
Minors refusing to become apprentices might be
imprisoned until they complied (section 28). The
restriction on freedom of employment imposed by this
statute was never looked upon with favour by the
judges. In an old case (y), as far back as 1690, one of
the judges said " that no encouragement w^as ever given
to prosecution upon this statute, and that it would be
for the common good if it were repealed, for no greater
punishment can be to the seller than to expose goods
to sale ill-wrought, for by such means he will never sell
more." Lord Mansfield in Beynard v. Chase {z) was very
emphatic, laying down four propositions :- — (1) This is a
penal law; (2) it is a restraint of natural right; (3) it is
contrary to the general right given by the common law
of this kingdom ; (4) the policy upon which the Act was
made is from experience become doubtful. And Lord
Kenyon in a later case {a) is reported to have said,
"When the Act was made those who framed it might
find it beneficial, but the ink with which it was written
was scarce dry ere the inconvenience of it was perceived."
The courts soon ruled that the Act applied only to
industries and trades which were in existence in the
(y) DoLBEN, J., in Hohhs v. Youmj (1690), 3 Mod. 317.
(z) Beynard V. Chase (1756), 1 Eurr. Kep. 2.
(a) Smith V. Company of Armourerti (1793), Peake'a Cases, 14S.
154 APrEENTICESHIP.
country at the time it was passed. This ruling gave
rise to absurdities, which did not escape the notice of
the critics of the Act.
Towards the close of the last century the Act
encountered the strongest and most bitter criticism at
the hands of Adam Smith and the school of pohtical
economy he initiated. They were so impressed with
the obstruction caused by the Act to the free circula-
tion of labour from one employment to another even in
the same place, and the obstruction by the exclusive
privileges of corporations to its free movement from
one place to another, even in the same employment,
that they condemned in the strongest terms the system
of apprenticeship altogether. Adam Smith (b) con-
tended that trade was restrained directly by the
limitations imposed as to the number of apprentices,
and indirectly by the long term of apprenticeship, and
also by the increased expense of education. " It often
happens," he says, "that while high wages are given
to workmen in one manufacture, those in another are
obliged to content themselves with bare subsistence.
The one is in an advancing state, and has therefore a
continual demand for new hands ; the other is in a
declining state, and the superabundance of hands is
continually increasing. The two manufactures may
sometimes be in the same town, and sometimes in the
same neighbourhood, without being able to lend the
least assistance to one another. The Statute of
Apprentices may oppose it in the one case, and both
that and an exclusive corporation in the other. In
many manufactures, however, the operations are so
much alike that the workmen could easily change
trades with one another if those absurd laws did not
hinder them." And, again, he remarks, " The
(b) Wealth of Nations. Book 1, Chap. X, Part 2.
HISTORICAL APPRENTICESHIP. iUO
patrimony of a poor man lies in the strength and
dexterity of his hands, and to hinder him from emploj-ing
his strength and dexterity m what manner he thinks
fit without injury to his neighbour is a plain violation
of this most sacred property. It is a manifest encroach-
ment upon the just liberty both of the workman and
of those who might be disposed to employ him. As it
hinders the one from working at what he thinks proper,
so it hinders the others from employing those whom
they think proper. To judge whether he is fit to be
employed may surely be trusted to the discretion of the
employers whose interest it so much concerns. The
affected anxiety of the lawgiver lest they should employ
an improper person is evidently as impertinent as it is
oppressive."
It does not seem to have occurred to this distin-
guished critic that the general adoption of the
apprenticeship system by nearly all Em'opean countries
evidently satisfied some want of the time, and he
ignored the advantages to the production of skilled
labour of even a lengthy period of enforced, regular and
methodical training in early hfe. As was said in an old
case (c) not very long after the passing of the Act, " the
statute of 5 Eliz. c. 4 was not enacted only to the
intent that workmen should be skilful, but also that
youth should not be nourished in idleness, but brought
up and educated in lawful sciences and trades."
As the result of the criticism passed upon it, and of
the expansion of trade, the Act of Elizabeth was
repealed in 1814 (d) so far as it enacted that no person
should exercise any trade without having served a
seven years' apprenticeship. The City of London and
other corporations were, however, excepted, and it was
(c) Ipswich Tailors case (1615), 11 Co. 54 n.
(rf) 54 Geo. 3, c. 96.
156 APrRENTICESIIir.
not till the Municipal Corporations Act of 1835 {e)
that the latter were included in the repeal, the City of
London still remaining an exception. The Act of
Elizabeth was wholly repealed by the Cousinracy and
Protection of Property Act, 1875 (/).
Apprenticeship from being compulsory thus became
voluntary, and has steadily declined since. It is worth
noting, however, that, pari passu with the decline of
apprenticeship and the corporations associated with it,
other combinations of those engaged in skilled
industries, trades and laboiu' generally have arisen, and
grown to great proportions, as evidenced by the many
large and powerful trade unions now existing. It is
also to be remarked that in the learned professions the
same principle of requiring a definite training extending
over a lengthened period as a preliminary to entrance
into them, and the exclusion of those who do not
satisfy this requirement, has been made much more
rigorous, rather than diminished, as for example in law
and medicine, and that the tendency is more and more
in the same direction is seen in the gradual extension
of a similar exclusivencss to other professions.
Nevertheless apprenticeship still exists, and to a
greater extent than is often supposed. And it has been
urged by some of those best acquainted with, and most
successful in the building up of great industries, that
the solution of the problem of technical instruction,
which has of late been so much discussed, would be
much advanced by a wide extension of the apprentice-
ship system. As a peculiar and interesting phase of the
relation of master and servant, apprenticeship merits a
brief notice at least in this work.
Questions concerning apprenticeship were constantly
raised in settlement cases under the poor law, for by
(e) 5 & 6 Will. 4, c. 76.
(/) 38 &39 Vict. c. 86, f. 17.
PARTIES TO THE CONTRACT. 157
certain statutes (g) a settlement was gained in the place
where an apprenticeship had been served. And the
section in the Act of William and Mary to this effect
still remains unrepealed.
The parties to the contract. — These are the master
and the apprentice, and they alone are necessary ; but
where the apprentice is an infant the father or guardian
is usually also a party as surety for the good behaviour
of the apprentice, and may be sued by the master on
the covenants should the apprentice misconduct himself.
*' The very end of binding the father was to answer the
wrong which might be done by the son to his master ;
therefore the father must be obHged for his son's true
performance of the articles. It is a joint covenant
and this makes the covenant of the son
bind the father who covenanted for him as well as for
himself (/i)."
Any one capable of making a contract can by the
common law take an apprentice. Even an infant may
do so (i). The apprentice may be of any age over
seven years (/i;), except parish apprentices, who must
not be ijound till they have attained nine years of age (l).
An alien trader by an Act of Henry VIII. (m) was
incapacitated from taking apprentices, but this was
repealed during the present reign («) . The incapacity
of a married woman to take apprentices is no doubt
removed by the Married Women's Property Act, 1882 (o) .
An apprentice may be bound to a firm of partners, but
on the dissolution of the partnership he is no longer
{(j) 14 Car. 2, c, 12(1662) ; 3 W. & M. c. 11, s. 7.
(A) Whitley v. Loftu-'^ (1724), 8 Mod. 190.
(?) Hex V. S. Petrox, Dartmouth (1791), 4 T. R. 196.
{k) Req. V. Saltern (1874), 1 Bott. 613.
(/) 56 (Jeo. 3, c. 139, s. 7.
{m) 14 & 15 Hen. 8, c. 2.
(w) 19 & 20 Vict. c. 64.
(o) 45 & 46 Vict. c. 75, s. 7, sub-s. (2).
158 APrRENTICESinP.
bound to any of the partners (p) ; and where a firm of
four partners dissolved partnership, and the business
was so divided that two of them carried on the manu-
facturing part in one place and the other two the selling
part in another, it was held that neither of them was the
successor of the original firm and entitled to the services
of an apprentice who refused to continue to serve (q) .
A corporation may also take apprentices if it is in a
position to give them proper instruction (/•) . An infant
apprentice is liable to serve his master's executors after
his master's death, if it has been so agreed in the
indenture of apprenticeship, and the apprentice will not
escape conviction by the justices for absenting himself,
although legally advised that he may do so (s) .
The contract. — The contract of apprenticeship was
originally by indenture, though it may be noted that in
the Act of Elizabeth indenture is only specified in the
section referring to apprentices in husbandry {t) , but its
necessity was abolished in 1758 (ic) , and a later statute (x)
made any contract of apprenticeship valid if made by
agreement in writing, and by the Stamp Act, 1891 (y)
every writing relating to the service or tuition of any
apprentice, clerk or servant, placed with any master to
learn any profession, trade, or employment (except
articles of clerkship to a soHcitor, or law agent, or
writer to the signet), is to be deemed an instrument
of apprenticeship. No technical words are requisite,
the important point is the intention. " The party need
(p) Rexv. 8. Martins, Exeter (1835), 2 A. & PI 655 ; BvooUy. Dan-son
(1869), 33 J. P. 720. ^^ ^ t r^ t, .,
(7) Eaton v. [Vestern (1882), 9 Q. B. D. 6.%; 52 L. J. Q. B. 41;
47 L. T. 593; 47 J. P. 196. ^ ^ „_ „.
(r) fJnrnky Indust. Sac. v. Carson, [1890] 1 Q. B. lo ; C/.
3 & 4 Will. 4, c. 63, s. 2. , r,. ^,. „ tt
(.s) Cooper V. Simmons (1862), 31 L. J. M. C. 138 ; 5 L. T. a2 ; 7 H.
& N. 707 ; 10 W. R. 270 ; 8 Jur. (n.s.) 81.
(t) 5 Eliz. c. 4, s. 18. {u) 31 Geo. 2, c. 11, s 1.
\x) 54 Geo. 3, e. 96, s. 2. (y) 54 & 55 Vict. c. 39, s. 2o.
THE CONTRACT. 159
not be retained eo nomine as an apprentice," said Lord
Kenyon, in Bex v. Bainham (z), "it is enough if the
purpose of the contract be that one shall teach and the
other learn the trade. No technical words are necessary
to constitute the relation of master and apprentice ; nor
is it necessary that there should be any premium."
And again, in Bex v. Lamclon (a), it was laid down that
whether a contract is a contract of apprenticeship or of
hiring and service must depend on the intentions of
the parties, which is to be collected from the whole
of their agreement. A contract of apprenticeship may
be formed without using the word apprentice. Parol
evidence may be received to explain the written instru-
ment. And Grove, J., added " An apprentice is a person
who by contract is to be taught a trade, in contra-
distinction from a person w^ho engages to serve another
person generally." Even a verbal agreement may
constitute a valid contract of apprenticeship (6). The
consent of the apprentice is essential to the contract.
A father has at common law no authority to bind his
infant son without his assent (c). This assent is not
necessary in the case of parish apprentices (c7) . And
the apprentice must execute the agreement ; thus, for
instance, an indenture which was not executed by the
apprentice (an adult) , but by her father-in-law with her
consent, was held invalid {e). An infant apprentice
unable to write may execute through a third party (/).
Execution is necessary to enable either party to sue
on the covenants. But it is not essential that the
(z) Rex V. Bainham (1801), 1 East, 531.
(a) Bex V. Laindon (1797), 8 T. R. 379.
(/>) Btx V. hjhtman (1856), 4 A. & E. 937.
(<■) B. V. Arnt.^lnj (1820), 3 B. & Aid. 584. Hie Case of Chesterfidd
(1697), 2 Salk, 479.
((Z) 43 Eli:, c. 2, s. 3. Gf. S. Nkholas v. S. Botolph (1862),' 31 L. J.
M. C. 258.
(e) B. V. Bipon (1808), 9 East, 295.
(/) A'. V. LoiKjiior (1833), 4 B. & Ad. 647.
160 APPREXTICESHIP.
master sign a counterpart to the agreement, but if he
does it is evidence against him though the apprentice
has not executed it ig).
A contract of apprenticeship is not complete unless
the master undertakes to teach (li) and the apprentice
undertakes to serve as well as to learn. " There is
no contract for his serving his master," said Lord
Ellenhorough, in B. v. Cromford ii), " nothing to bind
the son to serve. . . . This was no apprenticeship."
Term. — There is no fixed term of apprenticeship.
Under the statute of Elizabeth {h) the indenture was
for seven years at least, and if for a shorter term was
voidable at the election of the apprentice (/) ; but though
voidable it was not void for being less than seven
years {m) . And a settlement was gained by serving an
apprenticeship for forty days («) , and the forty days need
not be consecutive (o) ; the settlement is gained where
he sleeps, not where he works {p) ; if two places have
been slept in a sufficient time the place at which the
last night of the apprenticeship was passed will become
the place of settlement {q).
Consideration. — The sum of money actually paid as
premium must be stated in the indenture or it will be
void, even though stamped (/•). Where, therefore, the
{i,) Biiriciiih V. Stihh.i (1793), 5 T. R. 465; Millcriihip v. Brookes
(18(50), 29 L.' J. Ex. 369.
(h) Lte-'i V. Whitcomb (1828), 5 Bing. 34.
{i) R. V. Cro;«/o>-cZ(1806),8East,24; The Case of Cheisterjitld{\mi),
2 Salk. 479.
(i) 8 Eliz. c. 4.
(/) Buriiiey v. Jennimjs (1806), 6 Esp. 8.
(m) S. Nicholas v. S. Ptt>.r (1737), 2 Butt. 493; Burr. S. C. 91; Oray
V. Coo/j.so?i(1812), 16East,13; liexv. Evtranl{\Tu), 1 Butt. 638; liexy.
Chalhery (1730), 1 Bott. 706.
(n) Bex V. Charle.s (1772), 2 Bott. 56.5.
(o) B. V. CV/-e;(ce.s/(/- (1724), 1 Stra. 579.
(p) S. Mary v. Radrliife (1717), 1 .Stra. 59.
(q) Beg. v Btirlon (1863), .32 L. J. it. C. 102.
(r) B. V. Baildon (1832), 3 B. & Ad, 427 ; R. v. Amersham (1836),
4 A. & E. 508.
COVENANTS. 161
amount stated in the indenture was 201., and the
defendant gave an I. 0. U. for 20^. in addition, the deed
was held void (s). But some further consideration
which does not directly benefit the master, as providing
clothes or other necessaries for the apprentice, has been
held not to invalidate the contract (t) . There need not
be any premium (u).
Stamp. — Any instrument of apprenticeship requires,
independently of the amount of premium paid, a 2s. 6d.
stamp, except —
(1.) Such an instrument relating to any poor child
apprenticed by or at the sole charge of any
parish or township, or by or at the sole charge
of any public charity, or pursuant to any Act
for the regulation of parish apprentices.
(2.) Instrument of apprenticeship in Ireland, where
the value of the premium or consideration does
not exceed 10/. (x).
The master pays the stamp duty. If unstamped the
indenture is void, and is useless as evidence, But it
may be stamped after execution on paying for the stamp
and a penalty of 10/. (//).
Covenants. — The covenants in an indenture of
apprenticeship are independent covenants, and conse-
quently acts of misconduct on the part of the apprentice
stated in the plea are not an answer to an action for
breach of covenant by the master to instruct and main-
tain the apprentice during the term agreed on by the
indentures (,?) .
A parent or guardian who is party to the contract as
(s) WestlaU v. Adams (1858), 27 L. J. C. P. 27.
(<) R. V. Xorthoram (17-40), 2 Stra. 1132; R. v. Levjhton (1792),
4 T. R. 732.
(«) R. V. Rninham (1801), 1 Enst,531.
{x) 54 & 55 Vict. c. .S9, Schedule 1.
(2/) 54 & 55 Vict. c. 39, s. 15.
\z) Winstone v. Linn (1823), 1 B. & C. 460.
M. & S. M
1G2 APrEENTICESHir.
surety for the good conduct of the apprentice may be
sued by the master on the covenants. But if an infant
vokmtarily bind himself, which he may do, neither at
common law nor by statute does the covenant or obliga-
tion for his apprenticeship bind him (a). An apprentice
who left his master, and with his approval entered the
King's service, does not thereby avoid his apprentice-
ship (6). The misconduct of the apprentice is usually
no ground for discharge unless there is a proviso to that
effect (c) . "Wliere, however, it was shown that the
apprentice was an habitual thief, it was held to be a
good defence on the master's part to an action for
breach of covenant to keep, teach, and maintain the
apprentice (d) . In a case where a master moved one
hundred miles from the place where the aj)prentice
(who did not reside with his master) was bound, it was
held that there was a breach of the agreement by the
master (e). By an apprentice deed between an infant,
his parent, and the plaintiff, it was agreed that an
infant should be taught stage dancing but should not
take any engagements elsewhere, but there was no
undertaking by the plaintiff to support the infant when
out of employment. It was held that it was a contract
unreasonable and unenforceable against either the infant
or her parent (/ ) .
An apprentice who was an infant at the time of the
deed, found by the jury to be a proper and necessary
one if he wished to learn the business, was held liable
to pay the balance of the premium three and a half
years after, on the ground that the liability of the infant
(a) Gylhert v. Fletcher (1629) Cro. Car. 170.
(h) Bex V. Hindrinyham (1796), 6 T. R. 557.
(c) Phillips V. Clifl (1850), 28 L. J. Ex. 15.3 ; 4 H. & N. 168 ;
5 Jur. (n.s. ) 74.
{d) Learoyd v. Broolc, [1891] 1 Q. B. 431.
(e) Eaton v. Western (1.SS2), 9 Q. B. I). 636; 52 L. J. Q. B. 41
47 L. T. 593 ; 47 J. I'. 190 ; 31 W. R. 313 ; lioyce v. Charlton,
8 Q. B. 1). 1 ; 45 L. T. 712; 46 J. P. 197 ; 30 W. R. 274, ovcnulcd.
( / ) Z>e Francesco v. Bamum (1890), 45 Ch. D. 430.
COVENANTS. 163
for necessary instruction duly provided stood upon the
same footintr as that for ordinary necessaries supphed to
him, and that consequently the fact that he had entered
into a covenant under seal for the payment of the
premium did not prevent him from being liable for the
amount claimed {g).
The contract must not he disadvantageous to the
apprentice if an infant. — This was clearly laid down in
the important case of Beg. v. Lord (li), where by a
contract an infant agreed to enter into the service of a
master for twelve years at certain weekly wages, and
to serve him at all times during that term, and to work
fifty-eight hours a week, contained a proviso that in
case the steam-engine should be stopped from accident
or any other cause, that the master might retain all
wages of the servant during that time. It was held
that the agreement was void against the infant, and that
a conviction for absenting himself from such service
could not be supported. This case was followed in a
later one (/) which turned upon an apprenticeship deed,
which contained a provision that the master should not
be liable to pay wages to the apprentice so long as his
business should be interrupted or impeded by or in
consequence of any turn-out, and that the apprentice
might during any such turn-out employ himself in any
other manner, or with any other person, for his own
benefit. The court decided that this provision was not
beneficial to the infant, and, therefore, the deed could
not be enforced against him. Meakin v. Morris was
followed and approved in a recent case (k), which con-
tained a similar provision with regard to a turn-out,
with the addition that the apprentice might continue in
(fj) Walter v. Everard, [1891] 2 Q. B. 369.
(/i) lie</. V. Lord(l&iS), 17 L. J. M. C. 181 ; 12 Q. B. 757; 12 Jur. 1001.
(/) Mecdin v. J\forn.'< (1SS4), 12 Q. B. D. 352; 53 L. J, M. C. 72;
48 J. P. 344; 32 W. R. 661.
(k) Com V. Matthews, [1893] 1 Q. B. 310.
104 APPRENTICESHIP.
any employment he engaged in dm-ing the lock-out for
such reasonable time thereafter as might be necessary
for him to determine such employment, but during such
other employment the master should not be bound to
teach or instruct him. The provision was held to be so
much to the detriment of the infant that the appren-
ticeship deed could not be enforced against him under
the Employers and Workmen Act, 1875 (I), and Lord
Esher, M.K., in his judgment, said : "It is impossible
to frame a deed, as between a master and an apprentice,
in which some of the stipulations are not in favour of
the one and some in favour of the other. But if we
find a stipulation in the deed which is of such a kind
that it makes the w^hole contract an unfair one, then
that makes the whole contract void. The stipulation
which is objected to must be so unfair that it makes
the whole contract as between the apprentice, or the
infant, and the master, an unfair one to the infant."
In De Francesco v. Barniun{m), an apprenticeship
deed between an infant, her parent, and a teacher of
dancing was held void by Fnj, L.J., in a long and
careful judgment, on the ground that its provisions
were unreasonable, and therefore unenforceable against
either the infant or her parent. They gave the master
the right to the services of the apprentice at any time,
but whilst preventing her from obtaining other employ-
ment the master was under no obligation to fmd
employment forthe apprentice. " Those are stipulations
of an extraordinary and an unusual character," said the
Lord Justice, " which throws or appear to throw an
inordinate power into the hands of the master without
any correlative obligation on his part."
(I) 38 & .39 Vict. c. 90.
(w) D», Fnuinsro v. Barniim (1890), 45 Ch. D. 430; Ct'. Leslie v.
Fit:pafrirh-{\H11), 3Q. B. T). 229 ; 47 L, .J. M. C. 22 : 37 L. t. 461 ; and
Fdloirs V. Wood (ISSS), r)9 L.'l'. 513, in neither of wliirli, however, was
the agreement an apprenticeship deed strictly speaking.
DISSOLUTION OF CONTRACT. 165
Dissolution of the contract. — As with other contracts,
the contract of apprenticeship is dissolved by effluxion
of time, when the indenture belongs to the apprentice
to whom it should be given («), or by mutucd consent, as
by cancelling the indenture (o) . Such mutual consent
is only possible with an apprentice over twenty-one
years of age. An infant apprentice has no such power.
An infant who had bound himself apprentice for seven
years, after serving three of them quarrelled with his
master, and the latter offered to sell him the remainder
of his time for sixpence : having received the money,
he went away and bound himself to another master;
but he was adjudged to have no such power to dissolve
the apprenticeship (jj) . This decision was based on the
general rule of law^ that an infant cannot do any act to
bind himself, unless it be manifestly for his benefit.
Binding himself an apprentice has been considered such
an act, and, therefore, it has been held that an infant is
competent to make such a contract. If then, it is for
the benefit of the infant to bind himself an apprentice,
it is impossible to say generally that it is for his benefit
to dissolve such a connexion ; such a position involves a
contradiction.
On coming of age the apprentice may terminate
the apprenticeship (q) . This is not affected by the
Employers and Workmen Act, 1875 (>•). But the deter-
mination must be made within reasonable time, and
it has been decided that eighteen months is not
reasonable (s.)
Gross misconduct, such as habitual thieving, may
(71) Beg. V. Hinckley (1863), 32 L. J. M. C. 158.
(0) R. V. Harburton (1786), 1 T. R. 139. See R. v. Wotton (1769),
1 Bott. 712; R. V. 6\ Luke'.-! (176.1), 1 Bott. 710.
(p) R. V. Wirjiton (1824), 3 B. & C. 484 ; 5 D. & R. 339. See judgment
of Abbott, C.J.
(7) Moore v. Smith (1875), 39 J. P. 772. Ex jMrte Dacii (1794),
5 T. R. 715. Cf. 5 Eliz. c. 4, s. 25.
(?-) 38 & 39 Vict. 0. 90.
(.v) Wray v. West (1866), 15 L. T. (x.s.) 180; 30 J. P. 726.
166 APPRENTICESHIP.
entitle the master to dissolve the contract (0- But at
common law the master has no right to put an end to
the contract in case of misconduct of the apprentice {ii) .
This is clearly evident from the fact that the Legislature
expressly gave this power to the master in the case of
parish apprentices upon his making complaint to two
justices {x) . Where, however, the contract contained a
proviso that the apprentice should obey all commands
and give his service entirely to the business during ofdce
hours, a master was held justified in discharging the
apprentice for misconducting himself and habitually
neglecting his duties (?/). Blackburn, J., in this case
observed, "I do not think it would be a fair construction
of this contract that a si?igle act of misconduct would be
such a breach as would justify this dismissal."
If an apprentice enlist without his master's consent
and thereby desert his work it is good ground for
terminating the contract (z) . And by the Volunteer
Begulations an apprentice cannot be enrolled without
his master's consent.
If an apprentice unlawfully absent himself from his
master's service the master may recover damages for
his absence, but only from the date of his departure
until the issue of the writ, and he is not entitled to any
prospective damages for the whole term of the appren-
ticeship [a) . But the mere act of an apprentice absenting
himself will not enable him to avoid the indentm^e (6) .
The death of apprentice or master puts an end to the
(/) Learoyd v. Brook, [1891] 1 Q. B. 431. But see Phillips v. Clift
{18o9), 28 L. ,J. Ex. 153 ; 4 H. & N. 168 ; f) Jur. (n.s.) 74.
(?0 Wimtone v. Linn (1823), 1 B. & C. 460 ; Philips v. Clift (1859),
28 L. J. Ex. 153 ; 4 H. & N. 168 ; 5 Jur. (x.s.) 74.
(x) 20 Geo. II., c. 17.
(y) West wick v. Theodor (1875), 44 L. J. Q. B. 120 ; 32 L. T. 696 ;
L. R. 10 Q. B. 224 ; 23 W. R. 620.
(z) Hvqhcs V. Hnmphrci/s (1827), 6 B. & C. 620.
(«) Lt'wi^ V. Pturhti/ (1862), 31 L. J. Ex. 496; 1 H. & C 518; 10
W. R. 797 ; but sec Maw v. Jones (1890), 25 Q. B. D. 107.
(?>) Gray v. Cookson (1812), 16 East, 13.
DISSOLUTION OF CONTRACT. 167
apprenticeship (c) , unless there be a provision in the
deed to the effect that the a^^prentice is bound to the
master's executors, in which case the apprentice is
obhged to continue with the executor (cZ) . If the master
die before the term of apprenticeship is completed no
part of the premium can be recovered from the master's
executors, according to the rule that where a special
sum is paid for a special consideration, and there is a
partial failure, a party cannot recover even part, the
consideration not being severable (e) . Similarly the
father of an articled clerk was unable to recover any of
the premium paid to a solicitor who died before the
term of the clerkship had expired (/). But if there is
a proviso that on certain conditions, as, for instance,
ill-health of the apprentice, a part of the premium shall
be returned, and those conditions are fully satisfied, the
father of the apprentice may recover from the master {g).
If, however, the apx^rentice is wholly incapacitated by
permanent illness from carrying out his part of the
contract, although there is no reference to such a con-
dition in the deed, he will be absolved from the contract
on the ground that there must be an implied condition
that the apprentice shall continue in a state of abihty to
perform his contract (li).
Dissolution of partnership, if the apprentice has been
bound to a firm of partners, dissolves the contract, even
though the apprentice continue for a time to serve
one of the partners after the partnership has been
((•) Baxter V. Bnrjhld [lI'Ti), 12 Stra. 1266.
[d) Cooper V. Simmon-'i (1862), 31 L. J. M. C. 138 ; 5 L. T. 712 ; 7
H. & N. 707 ; 10 W. R. 270 ; 8 Jur. (x.s.) 81. Sec L\ v. Peck (1698),
1 Salk. 65, Holt, C.J.
(e) Whincup v. Hughes (1871), 40 L. J. C. P. 104 ; L. R. 6 C. P. 78 ;
24 L. T. 76 ; 9 W. R. 183.
if) Ferris v. Can- (1885), 54 L. J. Ch. 478.
(ff) Hmnher v. Derhij (1867), 15 L. T. 538.
(h) Boost V. Firth (1869), 38 L. J. C. P. 1 ; L. R. 4 C. P. 1 ; 19
L. T. 264 ; 17 W. 29. Cf. Taylor v. Caldwell (1863), 32 L. J. Q. B. 64 ;
3 B. & S. 826.
1G8 APrRENTICESIIIP.
dissolved (i) . And if a business carried on by a number
of partners be divided so that neither of the succeeding
businesses is exactly the continuation of the original
one, the apprenticeship may be dissolved by the
apprentice, and similarly if a business is removed from
one place to another, the apprentice not residing with
the master (k) . These cases would appear to answer
in the negative the question raised, but not answered,
in the case of Lloyd v. Blackburn (l) , whether the
apprenticeship may still exist if on a dissolution of
partnership one partner agrees to resign the apprentice
to the other.
The hankruptcij of the master is a complete discharge
of the indenture of apprenticeship, if either the bankrupt
or apprentice gives notice in writing to the trustee
to that effect. And the trustee may treat the claim by
an apprentice for repayment of part of the premium as
preferential, and in determining the amount to be so
repaid he will take into account the amount paid by the
apprentice on his behalf, the time he has served, and
the other circumstances of the case. The trustee, if it
seems expedient to him, instead of so repaying part of
the premium, may, on the application of the apprentice
or any person acting on his behalf, transfer the indenture
of apprenticeship to some other person {m) .
Ill-treatment to afford ground for terminating the
agreement must be of a serious character, and such
that the apprentice has reasonable ground for fearing that
grievous bodily harm would be inllicted on him. Such
fear would justify the apprentice in leaving his master {n) .
It may here be mentioned that the marriage of an
{{) Brook V. Dawson (1869), 3.3 J. P. 72(;.
(V) Eaton V. Wc.ttrn (1882), 52 L. J. Q. B. 41 ; 9 Q. B. D. 636 ; 47
L. T. 593 ; 47 J. P. 196. „ „^ „„„
(/) L/oyd V. Blackburn (1842), 11 L. J. Kx. 210; 9 M. & W. 363;
1 Dowl. (N-.s.)647. ^, „
(7m) Bankruptcy Act (1883), 46 & 47 Vict. c. 52, s. 41. Cf. Ex parte
Sandl»/ (\l-ir,), lAtk. 149.
(n) 'jIaUiwdl V. Coumtll (1878), 38 L. T. 176.
RIGHTS AND DUTIES OF THE MASTER. 1G9
apprentice does not affect the contract, and is not a
good cause for his discharge, for the remedy is an action
upon the covenant (o) . And restraint of marriage being
illegal, the insertion in the indentm^e of a covenant
against marriage would be void (_p) .
Though a contract of apprenticeship be under seal,
it can be discharged by a parol agreement; the old
common law doctrine that a contract under seal could
not be discharged by parol having given way to the
equitable one that a parol discharge is a ground for
staying proceedings on the original deed {q) .
Eights and Duties of the Parties.
The master. — The master has aright to the exclusive
service of his apprentice, and a right of action against
those who entice him away, detain, or harbour him (;•) .
But an indictment does not lie for enticing away an
apprentice (s). The measure of damages for so enticing
aivay an apprentice is not to be ascertained by the
actual loss the master suffers at the time, but for the
injury done him by causing the apprentice to leave his
employment (t).
The master has no legal right to the custody of his
apprentice, and he is not entitled to sue out a habeas
corpus to bring him up. This was decided in a case (u)
where a master endeavoured to obtain a writ of habeas
corpus to bring up his apprentice, aged eighteen, who
had voluntarily entered into the sea-service. Lord
Kenyon quashed the writ of habeas corpus, and said,
" the apprentice who is of sufficient age to judge for
himself, should have applied for it if he had wished it,
(o) R. V. Tardebigq (1754), Stiyer, 100.
(p) Woodhouse v. Shapley (1742), 2 Atk. 53o.
((?) Nash V. ArmMronij (1861), 10 C. B. (n.s.) 259. Per Willis, J.
[r) Lightly v. Clouston (1808), 1 Taunt. 112.
(.s) Reg.x. Daniel (1705), 6 Mod. 182.
(0 Gunter v. A^tor (1819), 4 Moore, 12.
(«) R. V. Reynold-^ (1795), 6 T. R. 497.
170 APPRENTICESHIP.
the master had his remedy in action for seducing his
apprentice." And in another case (x), shortly after,
the same judge ruled that where an apprentice was
impressed into the sea-service, the master could not
sue out a habeas corpus to bring him up to be discharged,
though the apprentice himself could ; but further, that
a warrant could be issued to bring up the apprentice on
the application either of the master or the apprentice.
All the earnings of the apprentice by right belong to
his master {y). This will still be so if the apprentice,
with the consent of his master, serves another, unless it
is specially agreed otherwise. And it has been held
that an apprentice who had run away to sea could not
legally claim his wages while on board ship, because
such wages really belonged to his master {z) . A master
can only turn his apprentice away for misconduct, if it
is gross and habitual (a), but not if the misconduct is
slight or trivial (6) . If a master licence his apprentice
to leave him, he cannot after recall that licence (c).
The master may chastise his apprentice with modera-
tion (d), but if the chastisement be such as to cause
the apprentice to have reasonable ground for fearing
severe bodily harm, he may leave his master's service (e).
It is the duty of the master to teach his apprentice
his trade, and if he fail to do so, it will be good ground
for rescinding the contract (/). If the apprentice
reside with his master, it is the duty of the latter to
(a;) B. V. Edwards (1798), 7 T. R. 745.
(y) Barber v. Dennis (1704), 1 Salk. 68 ; G Mod. 69. ; lx\ v. St.
Nicho/as (1730), Burr. S. C. 91.
(z) Bright V. Lucas (1797), 2 Peake, 121.
(a) Learoyd v. Brook; [1891] 1 Q. B. 431.
(b) Wiruftone v. Linu. (1823), 1 B. & C. 460.
(c) Anon (1704), 6 Mod. 70. Per Lord Holt, C. J.
(d) (lylhert v. Fletcher (1629), Cro. Car. 179. Penn v. Ward (1835),
2 C M & R 338
(e') HalliweUy. Convsell {\9rS), 38 L. T. 176.
(/) Ellen V. Topp (1881), 20 L. J. Ex. 241 ; Lees v. Whitcomb (1828),
Bing. 34.
EIGHTS AND DUTIES OF THE APPRENTICE. 171
supply him with food and lodging, and medicine if he
fall ill, and if through neglect to do so, the health of
the apprentice is likely to be severely or permanently
injured, he renders himself liable to a penalty of 20^.,
or imprisonment for a term not exceeding six months,
with or without hard labour (^).
Whilst a master cannot assign his apprentice to
another person without his consent (Ji), yet if at any
time he has not in liis own business sufficient employ-
ment for him, he may place him in the service of
another engaged in a similar line of business. For this
Smith V, Francis (i) is an authority which decided that
when a person qualified to take apprentices, under the
Watermen and Lightermens Act, 1859 (k), has no
emplopnent for the time being for his apprentice, he
may find temporary employment for such apprentice,
with another person so qualified.
The apprentice. — The apprentice is entitled to be
instructed by his master in his trade, and if the master
fail to do so, the apprentice has a right of action
against him (/). The proper course for the apprentice
to pursue is to sue his master on the covenants. AMiere
a master undertook to teach the three trades of
auctioneer, appraiser and cornfactor in which he was
engaged, and afterwards, in consequence of giving up
that of cornfactor, was unable to continue giving
instruction in all three trades, it was held to be a
breach of the agreement, even although the consent of
the apprentice had been given, and that he served after
the business was given up, and the apprentice was
(y) 3S & 39 Vict. c. 86, s. 6. See R. v. 5'mitli (1837), 8 C. & P. 153.
(h) Coventry v. Woodhall (1616), Hob. Rep. 13-i ; Baxter v. Barjidd
(1747) 2 Stra. 1266.
[i) Smith V. Francis (1891), 55 J. P. 407.
(k) 22 & 23 Vict. c. 133, s. 66, Bye-law 35.
(I) Lees V. Whitcomh (1828), 5 Bing. 34.
172 APPRENTICESHIP.
justified in absenting himself (?7i)- The apprentice is
also entitled to be taught the ivhole of his trade. A
master, therefore, was unable to compel his apprentice
to continue in his service after the business had been
divided into two parts, manufacturing and selling,
carried on in different places (n). This case also
decided that an apprentice not residing with his
master, bound in one town, cannot be compelled to
serve in another a long distance off, to which his
master has removed his business. A master has no
right to send his apprentice out of the realm unless the
business is such as requires it, as a merchantman or
seaman (o). Any dispute arising with regard to the
master not teaching, or otherwise, may now be settled
before a court of summary jurisdiction, and the justices
have power to rescind an instrument of apprentice-
ship ij))- An apprentice at common law is entitled
prima facie to be taught by his master, and the
master s retirement from business is no answer to an
action by the apprentice for not doing so, and if a firm
of partners to whom the apprentice has been bound
dissolves partnership he may sue each of the partners
for breach {q).
If by the contract the master undertakes to pay
wages to his apprentice, the latter will be entitled to
them, though incapacitated temporarily from serving
through illness (/•)■
It is of course the first duty of the apprentice to
serve his master with diligence and respect, and to
obey his orders as far as they are connected with his
(m) ElJtn V. Topp (1851), 20 L. J. Ex. 241 ; 6 Ex. 424 ; 15 Jur. 451.
(n) Eatoa v. WeMern (1882), 9 Q. B. D. 6.36; 52 L. J. Q. B. 41;
47 L T 593 ; 47 J. P. 196 ; 31 W. R. 313; Royrt v. Charlton (1881),
8 Q. B. D. 1 ; 5 L. T. 712 ; 46 J. P. 197 ; 30 W. R. 274, overruled.
(o) Core)ifryv. Woodhall (1616), 1 Hob. Rup. 134.
(73) 38 & 39 Vict. c. 90, ss. 5, 6 (2).
(q) Courhman v. ^'///ar (1870), 22 L. T. 480.
(r) PaiWi V. Wood (1887), 51 J. P. 549.
EMPLOYERS AND WORKMEN ACT, 1875. 173
trade. His master may call on him to assist in
instructlnci apprentices less experienced than himself.
If an apprentice work overtime, he is not entitled to
extra wages unless there is a stipulation to that effect
in the contract.
An apprentice is not obliged to work on Sundays but
may be called upon to do so on Bank Holidays (s) .
Jurisdiction of the Court of Chancery. — The Court of
Chancery has no jurisdiction to interfere between
master and apprentice. It has refused to entertain an
ax^plication for cancellation of the indentures of appren-
ticeship and to direct the return of premium for refusal
to receive and instruct an apprentice it), holding that
such relief oould only be obtained by an action-at-law
for breach of the contract. It has refused to grant an
injunction to restrain an apprentice from taking
employment under any other master, in violation of
the terms of the contract {u). Chittij, J., deciding on
the authority of Gijlhert v. Fletcher {x), that inasmuch
as no action could be brought against an infant on a
covenant to serve, the negative clauses in the appren-
ticeship deed could not be enforced by injunction
because the right to an injunction depends on the legal
right to sue, and if there is no legal right to sue, which
appears to have been the undisputed law since Gylhert
V. Fletcher, there can be no right to an injunction.
Employers and Workmen Act, 1875. — By the Act of
Elizabeth, justices of the peace had power to settle
(.s) Phillipfi V. Turner (1837), 4 CI. & F. 2.S4.
(0 Wthh V. England (1861), 30 L. J. Ch. 222 ; 3 L. T. 574 ; 7 Jur. (x.s.)
153 ; 29 Beav. 44, where sec the remarks of Romilly, M.R.
((() De Francesco v. Barnmn (1889), 43 Ch. 1(55. Fellows w Wood
(1888), 59 L. T. 513, distinguished.
[x) (1629) Cro. Car. 179. "All the court resolved that though an infant
may hind himself apprentice, and if he continues apprentice for seven
yea'rs may have tiie benefit to use his trade, yet neither at the conunon
law nor by 5 Eliz. 4 shall the covenant or obligation of an infant for his
apprenticeship bind him."
174 APPRENTICESHIP.
disputes between masters and their apprentices, and to
discharge or punish apprentices (//). Under the
Employers and Workmen Act, 1875 (z) disputes
between an apprentice to whom this Act applies and
his master arising out of or incidental to their relation
as such may be heard and determined by a court of sum-
mary jurisdiction (section 5) . In any proceeding before
such a court of summary jurisdiction the court has the
same powers as if the dispute were between employer and
workman, and has power (l)to make an order directing
the apprentice to perform his duties under the appren-
ticeship, and (2) to rescind the instrument of
apprenticeship, and on doing so may, if it thinks it just
to do so, order the whole or any part of the premium
to be repaid. Should an apprentice not obey such an
order to perform his duties, the court may after one
month from the date of the order imprison him for not
more than fourteen days (section 6). By section 7
of the same Act, the court may make an order against
the surety of the apprentice, in addition to, or in substi-
tution for any order against the apprentice himself, to
pay damages for any breach of contract of apprentice-
ship. The court may also accept security from such
surety, or any other person willing, instead of or in
mitigation of any punishment which it is authorized to
inflict upon the apprentice. The term workmen is
defined by section 10 : and section 12 limits the appli-
cation of the Act to apprentices to the business of a
workman, as defined by the Act, upon whose binding
either no premium is paid, or the premium (if any)
does not exceed 251. and to parish apprentices.
Employers' Liability Act, 1880. — All apprentices,
therefore, for whom a larger premium than 251. has
been paid, do not come under the Act. As a corollary
(y) 5 Eliz. c. 4, s. 28. (~) 38 & 39 Vict. c. 90.
PARISH APPEENTICES. 175
to this all such apprentices are 'also exempted from the
Employers' Liability Act, 1880 {a) (for by section 8 of
that statute " workmen " has the meaning given to it
by the Employers and Workmen Act, 1875), and will not
therefore be entitled to any remedy under its provi-
sions for injury resulting from the master's negligence
(section 1).
Reformatory and Industrial Schools Acts. — By the
Beformatonj ScJiouls Act, 1866 (6) and the Industrial
Schools Act, 1866 (c) the managers may at any time
after an offender has been placed out on licence, if he
conducts himself well, bind him with his own consent
apprentice to any trade, calling, or service notwith-
standing his period of detention has not expired. And
by the Beformatonj and Industrial Schools Act,
1891 (d) similar powers are conferred, and in addition
the managers may dispose of the child or youthful
offender by emigration, and such apprenticing or
emigration shall be as vahd as if the managers were his
parents. Provided that where disposed of by emigration,
and in any case unless detained for twelve months, the
consent of the Secretary of State shall be required for
the exercise of such powers.
Paeish Apprentices.
The Act of Elizabeth.— That the Poor ReHef Act of
Elizabeth (c) was intended by its framers to prevent
and put an end to the pauper class rather than to
support it, is shown among other things by the power
it gave to churchwardens and overseers with the assent
of two justices to apprentice out pauper childi'en until
of full age. By this and subsequent statutes (/) all
(a) 43 & 44 Vict. c. 42.
{b) 29 & 30 Vict. c. 117, s. 19
(f) 29 & 30 Vict. c. 118, s. 28.
(d) 54 & 55 Vict. c. 23, s. 1,
(e) (IGOl), 43 Eli::, c. 2, s. 3.
U) 8 & 9 \Yill. 3, c. 30, s. 5 ; 20 Geo. 3, c. 36.
17G APPRENTICESHIP.
kinds of persons, even gentlemen of fortune and
clergpnen, were held compellable to receive such
apprentices (r/).
Settlement. — Inasmuch as a settlement was gained
after forty days apprenticeship, it became a cheap and
easy way by which the guardians disburdened them-
selves, and if the apprenticeship were in an adjoining
parish got rid of the pauper for ever. The system, it has
been said, was merely a parochial billet of youth to
compel the support of part of the poor in ease of the
parish funds (h). Compulsory apprenticeship was
abolished only during the present reign (i). These
statutes were not enacted with a view to settlement.
The statutes relating to settlement of an apprentice
were 14 Car. 2, c. 12, and 3 W. & M. c. 11. s. 7. The
apprenticeship of pauper children is not so common
now as it was formerly, due to the abolition of com-
pulsory apprenticeship and the introduction of
compulsory elementary education.
General Order of July 24th, 1847. — The guardians
still have the power of so binding poor children (k) and
the consent of two justices is no longer required {I).
The existing regulations are contained in the General
Poor Law Order of July 24th, 1847, Articles 52—74. By
these regulations no child under nine years of age, and
no child who cannot read and write his own name, can
be bound apprentice by the guardians. No child
can be bound to a person who is not a householder, or
assessed to the poor rate in his own name, no child
can be bound to a journeyman, or to a person not
(</) Heg. V. Goii/d (1705), 1 Salk. .380.
(h) Chitty's " Apjucnticus."
(0 7 & 8 Vict. 0. 101, s. 1.3.
(k) This power is not restricted to the children of those who arc
actually in receipt of relief as paupers.
(/.) 7 & 8 Vict. c. 101, s. 12.
PARISH APPRENTICES. 177
carrying on trade or business on his own account, or
who is under twenty-one years of age, or to a married
woman (in). No premium other than clothing shall be
given in case of apprentices over sixteen years of age.
The premium shall consist in part of clothes and in part
of money, one moiety of which shall be paid to the
master at the binding, and the residue at the end of
the first year.
The term of apprenticeship shall not exceed eight
years.
No child above fourteen years of age shall be bound
without his consent.
No child under the age of sixteen years shall be
bound without his father's consent.
The master's place of business must not be more
than thirty miles distant from the place in which the
child is residing at the time of the proposed binding.
In the case of a child under fourteen a medical
certificate is required that the child is physically suited
to the trade in question.
The duties of the master to his apprentice are set out
with great care and detail and with evident solicitude
for the child's future welfare in Article /'O, by which
the master is bound to teach the child the trade or
business set out in the indenture, and provide him with
food, clothes, lodgings, and medical attendance when
required. The indenture is to be executed in duplicate
and signed by the apprentice, one part to be kept by
the guardians, the other by the master. When the
apprentice is more than seventeen years of age he must
be paid wages by his master.
If the master does not observe the conditions of the
indentm^e, it may be determined by the guardians, and
(m) This may be doubted since the Married Women's Property Act,
1882.
M. & S. N
178 APrREXTicEsnir.
if he neglects the apprentice, or otherwise treats him
badly, the guardians may institute proceedings for the
offence (n).
Apprentices to the sea-service. — The guardians may
also apprentice children to the sea-service. Every such
apprenticesliip must be executed by the boy and the
person to whom he is bound in the presence of and
shall be attested by two justices who shall ascertain
that the boy has assented to be bound and has attained
the age of twelve years, and is of sufficient health and
strength, and that the person to whom the boy is bound
is a proper person for the purpose (o) .
Discharge and transference. — A parish apprentice
cannot be discharged if under age without the consent
of the parish authorities (p). An apprentice cannot be
put away, transferred, assigned, or discharged without
the consent of two justices (q). The master or some
person legally authorized by him must execute the
assignment (;•), and an entry of the assignment must
be made in the register of parish apprentices (s) .
Death of master. — Within three months after the
death of the master to whom not more than 51.
premium has been paid two justices may, on their
application, order the apprentice to serve the residue of
his term with the widow, son, daughter, executor, or
administrator of the master (t).
Insolvency of master. — If a master, to whom a
premium of not more than 5^. has been paid, become
(71) 24 & 2.") Vict. c. 100, R. 20.
(o) 8ee the Merchant Shij^ping Act, 1894 (57 & 58 Vict. c. CO),
ss. 106, 107.
ip) R. V. AvMret/ (1758), Burr. S.C. 441.
(7) 32 fico. 3, c."57, s. 7 ; 56 Geo. 3, c. 139, s. 9.
(r) R. V. Sprcyton, 3 B. & Ad. 818.
(h) 22 Geo. 3, c. 46, s. 5.
(0 32 Geo. 3, c. 57, ss. 2, 3, 4, 9.
PARISH APPRENTICES. 179
insolvent, or so reduced in circumstances as to be unable
to employ or maintain his apprentice, he may, on
application of the master be discharged by two
justices (//)•
Registration and visitation. — The overseers of the
poor or persons having like powers, must, under pain of
a penalty, keep a book for entering the name of every
apprentice bound by them, and each entry must be
signed by two justices. Such book may be inspected
by any person at all reasonable hours, and it is evidence
in all courts of law, in proof of existence of the
indentures (x). Young persons under sixteen years of
age who have been bound out as apprentices by the
guardians must be visited periodically by the relieving
officer ; and if bound out at a distance greater than five
miles, a written notice giving particulars of the binding
of ths apprentice shall be sent by the guardians binding
to the guardians or overseers of the union or parish
where the master resides (y).
(u) 32 Geo. 3, c. 57, ss. 8, 9.
(.v) 42 Geo. 3, c. 46. ss. 2, 3, 6.
(y) 14 & 15 Vict, c. 11, ss. 4, 5.
n2
APPENDIX OF STATUTES.
PAGE
9 ci- 10 Vict. c. 93 (Fated Accidents Act, 18i6) ISl
27 db 28 Vict. c. 95 (Fated Accidents Act, ISGi) 182
38 d' 39 Vict. c. 86 (Conspiracy and Protection Act, 1875) 183
38 cL- 39 Vict. c. 90 (Employers and Workmen Act, 1875)... 192
43 cO 44 Vict. c. 42 (Employers' Liability Act, 1880) 199
60 <£-• 61 Vict. c. 37 ( Worhnen's Compensation Act, 1897) 202
FATAL ACCIDENTS ACT, 1846 (Lord Campbell's Act).
(9 & 10 Vict. Cap. 93.)
An Act for Compensating the Families of Persons killed bij Accidents.
[26tli August, 1846.]
[Preamble.]
[1.] JVhen death is caused by negligence an action shall he main-
tainable.1 Whensoever the death of a person sliall be caused by-
wrongful act, neglect, or default, and the act, neglect, or default is
such as would (if death had not ensued) have entitled the party-
injured to maintain an action and recover damages in respect thereof,
then and in every such case the person who would have been liable
if death had not ensued shall be liable to an action for damages,
notwithstanding the death of the person injured, and although the
death shall have been caused under such circumstances as amount in
law to felony.
2. Action to he for the benefit of certain relations, and brought by
executor or administrator of deceased.'] Every sucli action shall be for
the benefit of the -n-ife, husband, parent, and child of the person
whose death shall have been so caused, and shall be brought by and
in the name of the executor or administi^ator of the person deceased ;
and in every such action the jury may give such damages as they
may think proportioned to the injurj' resulting from such death to
the parties respectively for whom and for whose benefit such action
shall be brought, and the amount so recovered, after deductius; the
182 FATAL ACCIDENTS ACT, 1864
costs not rccovorc'd from tlie defoiidaut, shall Ije divided amongst the
liefore-mentioned parties in such shares as the jury by their verdict
shall find and direct.
3. Action to be commenced vntliin year.'] Provided always, that
not more than one action shall lie for and in respect of the same
subject matter of comi)laint ; and that every such action shall be
commenced within twelve calendar months after the deatli of such
deceased person.
4. Plaintiff to deliver farticvlarf.'] In cvciy such action the
plaintiff on the record shall be lequircd, togttlur with the declara-
tion, to deliver to the defendant or his attorney a full particular of
the person or ]iersons for whom and on whose behalf sufli action
sliall be brouj^lit, and of the nature of the claim in respect of which
damages shall be sought to be recovered.
5. Construction of Act.] The following words and exj^ressions are
intended to liave the meanings hereby assigned to them respectively,
so far as such meanings are not excluded by the context or by the
nature of the suljject matter ; that is to say, Avords denoting the
singular number are to be understood to apply also to a plurality of
persons or things ; and words denoting the masculine gender are to
be understood to apply also to persons of the feminine gender ; and
the word " person " shall apply to bodies politic and corporate ; and
the Avord "j^arent" sliall include father and mother, and grand-
father and grandmother, and stepfatlier and stepmother ; and the
word "child" shall include son and daughter, and grandson and
granddaughter, and stepson and stepdaughter.
6. Act not to cqyphi to Scotland.] [This Act shall come into opera-
tion from and immediately after the passing thereof, and] (a) nothing
tlierein contained shall apply to that part of the United Kingdom
called Scotland.
FATAL ACCIDENTS ACT, 18G4.
(27 & 28 Vict. Cap. 95.)
An Act to amend the Act Ninth and Tenth Victoria, Chapter Ninety-
three, for Compensating the Families of Person.'^ hilkd hi/ Accident.
[29th July, 1864.]
[Preamble recites 9 & 10 Vict. c. 93.]
1. Action may be bronyht by the persons beneficially interested where
no executor, etc.] If and so olten as it shall happen at any time or
times hereafter in any of the cases intended and provided for by the
(«) Words in brackets repealed by 38 & 39 ^'ict. c. GG (S. L. R.)
(27 & 28 VICT. CAP. 96). 183.
said Act, that there shall be no executor or administrator of the
person deceased, or that there being such executor ov administrator,
no such action as in the said Act mentioned shall within six calendar
months after the death of such deceased person as therein mentioned
have been brouf^dit by and in the name of his or her executor or
administrator, then and in every such case such action may be
brought by and in the name or names of all or any of the persons
(if more than one) for whose benefit such action would have been,
if it had been brought by and in the name of such executor or
administrator ; and every action so to be brought shall be for the
benefit of the same person or persons, and shall be subject to the same
regulations and procedure, as nearly as may be, as if it were brought
by and in the name of such executor or administrator.
2. Payments into couH.] (Recital of 9 & 10 Vict. c. 93, s. 2). It
shall be sufficient, if the defendant is advised to pay money into
court, that lie jiay it as a compensation in one sum to all persons
entitled under the said Act for his wrongful act, neglect, or default,
without specifying the shares into which it is to be divided by the
jury ; and if the said sum be not accepted, and an issue is taken by
the plaintiff as to its sufficiency, and the jury sliall think the same
sufficient, the defendant shall be entitled to the verdict upon that
issue.
.3. Construction.] This Act and the said Act shall be read together
as one Act.
CONSPIRACY AND PROTECTION OF PROPERTY
ACT, 1875.
(38 & 39 Vict. Cap. 86.)
An Act for amending the Law relating to Conspiracy, and to the
Protection of Property, and for other purposes .
[13th August, 1875.]
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 follows :
1. Short Title.'] This Act may be cited as the Conspiracy and
Protection of Property Act, 1875.
2. Commencement of Act.] This Act shall come into operation on
the first day of September, one thousand eight hundred and seventy-
five.
Conspiracy and Protection of Property.
3. Amendment of law as to conspiracy in trade disputes.] An agree-
ment or combination by two or more persons to do, or procure to be
184 CONSPIRACY AND rROTECTIOX OF PEOrERTY ACT
done, any act in contenii)lation or furtlierance of a trade dispute
between employers and -workmen, shall not be indictable as a con-
spiracy if such act committed by one person would not be punishable
as a crime.
Nothing in this section shall exempt from punishment any persons
guilty of a conspiracy for which a punishment is awarded Ijy any Act
of Parliament.
Nothing in this section shall affect the law relating to riot,
unlaAvful assembly, breach of the peace, or sedition, cr any oflence
against the State or the Sovereign.
A crime for the purposes of this section means an offence punish-
able on indictment, or an offence Avhich is punishable on sumniars"
conviction, and for the commission of which the olfender is liable,
under the statute making the olfence punishable, to be imprisoned
either absolutely or at the discretion of the court as an alternative
for some other punishment.
Where a person is convicted of any such agreement or combination
as aforesaid to do or procure to be done an act which is punishable
only on summary conviction, and is sentenced to imprisonment,
the imprisonment shall not exceed three months, or such longer
time, it any, as may have been prescribed by the statute for the
punishment of the said act when committed by one person.
4, Breach of contract by persons em])loyed in supidy of gas or xcaterJ]
Where a person employed by a municipal authority or l)y any
company or contractor upon whom is imposed by Act of Parliament
the duty, or who have otherwise assumed the duty of supplying any
city, borough, town or place, or any part thereof, with gas or water,
wilfully and maliciously breaks a contract of service with that
authority or company or contractor, knowing or having reasonable
cause to believe that the probable consec|uences of his so doing,
either alone or in combination with others, will be to deprive the
inliabitants of that city, borough, town, place, or part, wholly or to a
great extent of their supply of gas or water, he shall on conviction
thereof by a court of sunnnary jurisdiction or on indictment as
hereinafter mentioned, be liable'either to pay a penalty not exceeding
twenty pounds, or to be imprisoned for a term not exceeding three
months, with or without hard labour.
Every such municipal authority, company, or contractor as is
mentioned in this section shall cause to be posted up at the gasworks
or waterworks, as the case maybe, belonging to such authority or
company or contractor, a printed copy of this section in some con-
spicuous place where the same may be conveniently read by the
persons employed, and as often as such copy becomes defaced,
obliterated, or destroyed, shall cause it to be renewed with all
reasonable despatch.
If any municipal authority or company or contractor make default
in complying with tlie provisions of this section in relation to such
notice as aforesaid, tliey or he shall incur on summary conviction a
penalty not exceeding five pounds for every day during which such
(38 & 39 VICT. CAP. 86.) 185
default continues, and every person who unlawfully injures, defaces,
or covers up any notice so posted up as aforesaid in pursuance of this
Act, shall be liable on summary conviction to a penalty not exceeding
forty shillings.
5. Breach of contract involving injunj to persons or fro-perty.']^
Where any person wilfully and maliciously breaks a contract of
service or "of hiving, knowing or having reasonable cause to believe
that the probable consequences of his so doing, either alone or in
combination with others, will be to endanger human life, or cause
serious bodily injury, or to expose valuable property, whether real or
persona], to destruction or serious injury, he shall on conviction
thereof by a court of summary jurisdiction, or on iudictment_ as
hereinafter mentioned, be liable either to pay a penalty not exceeding
twenty pounds, or to be imprisoned for a term not exceeding three
months, with or without hard labour.
Miscellaneous.
6. Penalty for neglect hy master to 2^')'ovide food, clothing, etc., for
servant or apprentice.'] AVhere a master, being legally liable to provide
for his servant or apprentice necessary food, clothing, medical aid, or
lodging, wilfully and without lawful excuse refuses or neglects to
provide the same, wliereby the health of the servant or apprentice is
or is likely to be seriously or permanently injured, he shall on sum-
mary conviction be liable either to pay a penalty not exceeding
twenty pounds, or to be imprisoned for a term not exceeding six
months, with or without hard labour.
7. Penalty for intimidation or annorjance hy violence or otlwioise.}
Every person wdio, with a view to compel any other person to
abstain from doing or to do any act wdiich such other person has a
legal right to do, or abstain from doing, wrongfully and without
legal authority, —
1. Uses violence to or intimidates such other person or his wife or
children, or injures his property ; or
2. Persistently follows such other person about from place to
place ; or
3. Hides any tools, clothes, or other property owned or used
by such other person, or deprives him of or hinders him in
the use thereof ; or
4. Watches or besets the house or other place where such other
person resides, or works, or carries on business, or happens to
be, or the approach to such house or place ; or
5. Follows such other person with two or more other persons in a
disorderly manner in or through any street or road,
shall, on conviction tliereof by a court of summary jurisdiction,
or on indictment as hereinafter mentioned, be liable either to
pay a penalty not exceeding twenty pounds, or to be imprisoned for
a term not exceeding three months, with or without hard labour.
Attending at or near the house or place where a person resides, or
works, or carries on business, or happens to be, or the approach to
18G CONSriRACY AND TROTECTION OF PROPERTY ACT
such liouso or place, in order merely to obtain or communicate
information, shall not be deemed a watching or besetting within
the moaning of this section.
8. Reduction of 'penaUies.'] Where in any Act relating to employers
or workmen a pecuniary penalty is imposed in respect of any
offoiice under such Act and no power is given 'to reduce such
penalty, the justices or court having jurisdiction in respect of such
oft'ence may, if they think it just so to do, impose by way of penalty
in respect of such offence any sum not less than one-fourth of the
penalty imposed by such Act.
Legal rroceedhujs .
9. Poii-er for offender under this Act to he tried on indictment
and not bij court of summanj juriadiction.] Where a person is accused
before a court of summary jurisdiction of any oflence made punish-
able by this Act, and for which a penalty amounting to twenty
]iounds, or imprisonment, is imposed, the accused may, on appearing
before the court of summary jurisdiction, declare that he objects
to being tried for such offence by a court of summary jurisdiction,
and thereupon the court of summary jurisdiction may deal with the
case in all respects as if the accused were charged with an indictable
oflence, and not an offence i)unishable on summary conviction,
and the offence may be prosecuted on indictment accordingly.
10. Proceedings before court of summary jurisdiction.] Every offence
under this Act which is made punishable on conviction by a court
of summary jurisdiction, or on summary conviction, and every
penalty under this Act recoverable on summary conviction, may be
jn'osecuted and recovered in manner provided by the Summary
Jurisdiction Act.
11. Regulations as to evidence.] Provided, that uikhi tlie hearing
and determining of any indictment or information under sections
lour, live, ami six of this Act, the respective ])arties to the contract
of service, their husbands or wives, shall be deemed and considered
as competent witnesses.
12. Appeal to quarter sessions.] In England or Ireland, if any
party feels aggrieveil by any conviction made by a court of summary
jurisdiction on determining any information under this Act, the
party so aggrieved may appeal therefrom, subject to the conditions
and regulations following :
(1.) The appeal .shall be made to some court of general or quarter
.sessions for the county.
(The remainder of this section was repealed by the Summary
Jurisdiction Act, 1884 (47 & 48 Vict. c. 43), so that now the pro-
cedure is regidated by tlie Summary Jurisdiction Acts (42 & 43 Vict.
c. 49), and (47 & 48 Vict. c. 43) ).
(38 & 39 VICT. CAP. 86). 187
Definitions.
13. General definitions : " The Summary Jurisdiction Ad."] In this
Act,—
The expression " the Summary Jurisdiction Act " means the Act
of the session of the eleventh and twelfth years of the reign of Her
present Majesty, chapter forty-tliree, intituled "An Act to facilitate
the performance of the duties of justices of the peace out of sessions
within England and Wales with respect to summary convictions and
orders," inclusive of any Acts amending the same ; and
The expression "court of summary jurisdiction" means—
(1.) As respects the city of London, the Lord Mayor or any
alderman of the said city sitting at the Mansion House
or Guildhall justice-room ; and
(2.) As respects 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, place, or
district for which a stipendiary magistrate is for the
time being acting, such stipendiary magistrate sitting at
a police court or other place appointed in that behalf ;
and
(4.) Elsewhere, any justice or justices of the peace to whom
jurisdiction is given by the Summary .Jurisdiction Act :
Provided that, as respects any case within the cognizance
of such justice or justices as last aforesaid, an information
under this Act shall be heard and determined by two or
.more justices of the peace in petty sessions sitting at some
place appointed for holding petty sessions.
Nothing in this section contained shall restrict the jurisdiction of
the Lord Mayor or any alderman of the city of London, or of any
metropolitan '^police or stipendiary magistrate, in respect of any act
or jurisdiction which may now be done or exercised by him out of
court.
14. Definitions of '^municipal authority" and '^public company."]
The expression " municipal authority " in this Act means any of the
following authorities, that is to say, the Metropolitan Board of
"Works, the Common Council of the city of Lonclon, the Commis-
sioners of Sewers of the city of London, the town council of any
borough for the time being, subject to the Act of the session of the
fifth and sixth years of "the reign of King William the Fourth,
chapter seventy-six, intituled " An Act to provide for the Regulation
of Municii)al Corporations in England and Wales," and any Act
amending the same, any commissioners, trustees, or other persons
invested by any local Act of Parliament with powers of improving,
cleansing, "lighting, or paving any town, and any local board.
Any municipal authority or company or contractor who has
obtained authority by or in pursuance of any general or local Act
of Parliament to'supjily the streets of any city, borough, town, or
188 CONSPIRACY AND PROTECTION OF PROPERTY ACT
place, or of any i^art thereof, with gas, or which is reciuireil by or in
pursuance of any general or local Act of Parliament to supply water
on cleinan<l to the inhabitants of any city, borough, town, or place,
or any part thereof, shall for the purposes of this Act be deemed to
be a municipal authority or comjiany or contractor upon whom is
imposed by Act of Parliament the duty of supplying such city,
borough, town, or place, or part thereof, with gas or water,
15. " Malicmidij " in this Act construed as in Malicious Injuries to
Propeiiy Act.] The word " maliciously " used in reference to any
offence under this Act shall be construed in the same manner as it
is rerpiired by the fifty-eighth section of the Act relating to malicious
injuries to property, that is to say, the Act of the session of the
twenty-fourth and twenty-fifth years of the reign of Her present
Majesty, chajiter ninety-seven, to be construed in reference to any
offence committed under such last-mentioned Act.
Saving Clause.
■ce.] Nothing
seamen or to ajjprentices to the sea service
16. Saving as to sea service.] Nothing in this Act shall apply to
he
Repeal.
17. Repeal of Acts.] On and after the commencement of this Act,
there shall be repealed : —
I. The Act of the session of the thirty-fourth and thirty-fifth years
of the reign of Her present Majesty, chajiter thirty-two,
intituled " An Act to amend the Criminal Law relating to
violence, tlueats, and molestation" ; and
IT. " The Master and Servant Act, 1867," and the enactments
specified in the First Schedule to that Act, with the excep-
tions following as to the enactments in such Schedule ;
(that is to say,)
(i.) Except so much of sections one and two of the Act
passed in the thirty-third year of the reign of
King George the Third, chajjter fifty-five, intituled
"An Act to authorize justices of the peace to
impose fines upon constables, overseers, and other
peace or jiarish officers for neglect of duty, and on
masters of apjtrentices for ill-usage of such their
apprentice ; and also to make provision for the
execution of warrants of distress granted by
magistrates," as relates to constaljles, overseers,
and other peace or parish officers ; and
(2.) Except so much of sections five and six of an Act
passed in the fifty-ninth year of the reign of King
George the Third, chapter ninety-two, intituled
" An Act to enable justices of the peace in Ireland
to act as such, in certain cases, out of the limits of
(38 & 39 VICT. CAP. 86). 189
the counties in whicli they actually are ; t(j make
provision for the execution of warrants of distress
granted by them ; and to authorize them to
impose fines upon constables and other officers
for neglect of duty, and on masters for ill-usage of
tlieir apprentices," as relates to constables and
other peace or parish officers ; and
(3.) Except the Act of the session of the fifth and sixth
years of the reign of Her present Majesty, chapter
seven, intituled "An Act to explain the Acts for
the better regulation of certain apprentices " ; and
(4.) Except sub-sections one, two, three, and five of
section sixteen of "The Summary Jurisdiction
(Ireland) Act, 1851," relating to certain disputes
between employers and the persons employed by
them ; and
III. Also there shall be repealed the following enactments making
breaches of contract criminal, and relating to the recovery
of Avageg by summary procedure ; (that is to say,)
(a.) An Act passed in the fifth year of the reign of
Queen Elizabeth, chapter four, and intituled "An
Act touching dy vers orders for artificers, labourers,
servantes of liusbandrye, and apprentices " ; and
(h.) So much of section two of an Act passed in the
twelfth year of King George the First, chapter
thirty-four, and intituled "An Act to prevent
unlawful combination of workmen erajjloyed in
the woollen manufactures, and for better payment
of their wages," as relates to departing from service
and quitting or returning work before it is finished ;
and
(c.) Section twenty of an Act passed in the fifth year of
King George the Third, chapter fifty-one, the title
of which begins with the words " An Act for
repealing several Laws relating to the manufacture
of woollen cloth in the county of York," and ends
with the words "for preserving the credit of the
said manufacture at the foreign market ; " and
('/.) 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 employed in the bone and threacl lace
manufactory ; " and
(e.) 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, intitled " An
Act for the more effectual prevention of frauds
and abuses committed by weavers, sewers, and
other persons employed in the linen, hempen.
190 CONSPIRACY AND rilOTECTION OF PKOrEIlTY ACT
union, cotton, silk, and woollen manufactures in
In-luml, and for the butter payment of their \va<ies
for one year, and from thence to the end of the
next session of Parliament ; " and
(/.) Section seventeen of an Act pas-ied in the session of
tlu- sixth and seventh years of Her present Majesty,
chapter forty, the title of which begins with the
words "An Act to amend the Laws," and ends
with the words "workmen engaged therein ;" and
(g.) Section seven of an Act passed in the session of the
eighth and ninth years of Her present Majesty,
cliapter one hundred and twenty-eight, and
intituled " An Act to make further ivgulalions
res]iecting the tickets of work to 1)e delivered to
silk weavers in certain cases."
Provided that, —
(1.) Any order for wages or further sum of compensation in
addition to wages made in pursuance of section sixteen
of "The Summary Jurisdiction (Ireland) Act, 1851,"
may be enforced in like manner as if it were an order
made by a court of summary jurisdiction in ])ursuance of
the Employers and Workmen Act, 1875, and not other-
wise ; and
(2.) The repeal enacted by this section shall not alfect —
(a.) Anything duly done or suffered, or any right or
liability acquired or incurred under any enactment
hereby repealed ; or
(//.) Any penalty', forfeiture, or punishment iucuvred in
respect of any offence committed against any
enactment hereby repealed ; or
(r.) Any investigation, legal i^roceeding, or remedy in
respect of any such right, liability, jtenalty,
forfeiture, or punishment as aforesaid ; and any
such investigation, leyal proceeding, and remedy
may lie carried on as if this Act had not passed.
Application of Act to Scotland.
18. Application to Scotland. Definitions.] This Act shall extend
to Scotland, with the modifications following ; that is to say, —
(1.) The exi)ression " municijial authority" means the town
council of any royal or parliamentary burgh, or the
commissioners of police of any Inirgh, town, or populous
place under the ]>rovisions of the General Police and
Improvement (Scotland) Act, 1862, or any local authority
under the provisions of the Public Health (Scotland) Act,
18G7 :
(2.) The expression "The Summary Jurisdiction Act " means the
Summary Procedure Act, 1864, and any Acts amending the
same :
(38 & 39 VICT. CAP. 86). 191
(.3.) The expression " tlie court of summary jurisdiction" means
the sherilf of the county or any one of liis substitutes.
19. [Recovery of penalties, etc., in Scotland.] In Scotland the
folio-wing provisions shall have elfect in regard to the prosecution of
offences, recovery of penalties, and making of orders under this Act :
(1.) Every offence under this Act shall be prosecuted, every
penalty recovered, and every order made at the instance of
tlie Lord Advocate, or of the Procurator Fiscal of the
sheriff court :
(2.) The proceedings may be on indictment in the Court of
Justiciary in Edinburgh or on circuit or in a sheriff court,
or may be taken sunnnarily in the sheriff court under the
provisions of the Summary Procedure Act, 1864 :
(.3.) Every person found liable on conviction to pay any penalty
under this Act shall be liable, in default of payment within
a time to be fixed in the conviction, to be imprisoned for a
term, to be also fixed therein, not exceeding two months, or
until such penalty shall be sooner paid, and the conviction
and warrant may be in the form of No. 3 of Scliedule 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
Consolidated Fund.
20. Appeal in Scotland, as jirescribed hy 20 Geo. 2, c. 43.] 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
Justiciarv, or a\ here there are no circuit courts to the High Court of
Justiciary at Edinljur^^h, in the manner j.rescribed by ami 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.
Application of Act to Ireland.
21. Application to Ireland.] This Act shall extend to Ireland,
with the moditications following ; that is to say,—
The expression "The Summary Jurisdiction Act "shall be con-
strued to mean, as regards the police district of Dublin
metropolis, the Act 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 Acts amending
the same :
The expression "court of summary juiisdiction" shall be con-
strued to moan any justice or justices of the peace, or other
192 EMPLOYERS AND WORIvMEN ACT, 1875
niaj:,'istrate to wliom jurisdiction is given by the Suraniary
Jurisdiction Act :
The court of summary jurisdiction, when hearing and determiuinf;
comidaints under this Act, sliall in the police district ol:
Duldin metropolis be constituted of one or more of Uie
divisional justices of the said district, and elsewhere in Ireland
of two or justices of the peace in petty sessions sitting at a
place appointed for holdin" petty sessions :
The expression " municipp.l autliority " shall be construed to mean
the town council of any borough for the time being, subject
to the Act of the session of the third and fourth years of the
reign of Her present ^Majesty, chapter one hundred and eight,
entitled "An Act for tlie Regulation of IMunicipal Corpora-
tions in Ireland," and any commissioners invested by any
general or local Act of Parliament, with power of improving,
cleansing, lighting, or paving any to^\^^ or township.
EMPLOYERS AND WORKMEN ACT, 1 875.
(.38 & 39 Vict. Cap. 90.)
An Act to enlarge the powers of County Courts in respect of disputes
betu'cen Employers and IForhnen, and to give other Courts a limited
civil jurisdiction in respect of such disputes.
[13th August, 1875.]
Be it enacted by the Queen's most excellent :\Iiijesty^ by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and l)y the authority
of the same, as follows :
Preliminanj.
1. Short Title.] This Act may be cited as the Employers and
Workmen Act, 1875.
2. Commencement of Act.] This Act, except so f;ir as it authorizes
any rules to be made or other thing to be done at any time after the
passing of this Act, shall come into operation on the first day of
September, one thousand eight hundred and seventy-live.
Part I.
Jurisdiction — Jurisdiction of County Court.
3. Power of county court as to ordering ofjMymcnt of money, set-off,
and rescission of contract and taking security.] In any proceeding
before a county court in relation to any dispute between an employer
(38 & 39 VICT. CAP. 90). 193
and a workman arising out of or incidental to their relation as such
(which dispute is hereinafter referred to as a dispute under this Act),
the court may, in addition to any jurisdiction it might have exercised
if this Act had not passed, exercise all or any of the following powers;
that is to say, —
(1.) It may adjust and set off the one against the other all such
claims on the part either of the employer or of the workman,
arising out of or incidental to the relation between them, as
the court may find to be subsisting, whether such claims are
liquidated or uuliquidated, and are for wages, damages, or
otherwise ; and,
(2.) If, having regard to all the circumstances of the case, it thinks
it just to do so, it may rescind any contract between the
employer and the workman upon such terms as to the
apportionment of wages or other sums due thereunder, and
as to tlie payment of wages or damages, or other sums due,
as it thinks just ; and,
(3.) Where the court might otherwise award damages for any
breach of contract it may, if the defendant be willing to
give security to the satisfaction of the court for the per-
formance by him of so much of his contract as remains
unperformed, with the consent of the plaintiff, accept such
security, and order performance of the contract accordingly,
in place either of the whole of the damages which would
otherwise have been awarded, or some part of such
damages.
The security shall be an undertaking by the defendant and one or
more surety or sureties that the defendant will perform his
contract, subject on non-performance to the payment of a
sum to be specified in the undertaking.
Any sum paid by a surety on behalf of a defendant in respect of
a security under this Act, together with all costs incurred
by such surety in respect of such security, shall be deemed
to be a debt due to him from the defendant ; and where
such security has been given in or under the direction of a
court of summary jurisdiction, that court may order pay-
ment to the surety of the sum which has so become due
to him from the defendant.
Court of Summary Jurisdiction.
4. Jurisdiction of justices in disputes beticeen emfloyers and toork-
men.] A dispute under this Act between 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 ci\-il jurisdiction, and in a proceeding in
relation to any sucli dispute the court may order payment of any
sr-u which it inay find to be due as wages, or damages, or otherwise,
and may exercise' all or any of the powers by this Act conferred ou
194 EMPLOYERS AND WORKMEN ACT, 1875
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 ckimed
exceeds ten pounds ; and
(2.) Shall not make an order for the payment of any sum exceeding
ten pounds, exclusive of the costs incurred in the case ;
and
(3.) Shall not require security to an amount exceeding ten pounds
from any defendant "or his surety or sureties.
5. Jurudidion of justices in disputes heticeen masters and apprentices.']
Any disput<3 between an a^jpientice to whom this Act applies ami
his master, arising out of, (jr incidental to their relation as sucli
(which dispute is hereinafter referred to as a dispute under this
Act), may be heard and determined by a court ot summary
jurisdiction.
6. Powers of justices in respect of apprentices.l In a proceeding
before a court of summary jurisdiction in relation to a dispute
under this Act between a master and 'an apprentice, the court
shall have the same powers as if the dispute were between an
employer and a workman, and the master were the employer and
the apprentice the M-orknian, 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 ap])rentice to perform his
duties under the apprenticeship ; and
(2.) If it rescinds the instrument of ai)prenticeship it may, if it
thinks it just so to do, order the whole or any part of the
piemium 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 alter the expiration of not less than one month from the
date of the order that the apprentice has lailed to comply there-
with, order him to be imprisoned lor a period not exceeding fourteen
days.
7. Order against surety of apprentice, and power to friend of apprentice
to (jive security^ In a proceeding before a court of summary jurisdic-
tion in relation to a dispute umler this Act between a master and an
apprentice, if there is any person liable, under the instrument of
apprenticeshi}), for the good conduct of the apprentice, that person
may, if the couit so direct, be summoned in like manner as if he
were the defendant in such proceeding to attend on the hearing of
the proceeding, and the c(jurt may, in addition to, or in substitution
for any order which the court is authorized to make against the
apprentice, order the person so summoned to pay damages for any
breach of the contract of appienticeshij) to an amount not exceeding
the limit (if any) to which he is liable under the instrument of
apprenticeship.
(38 & 39 VICT. CAP. 00). 195
The court may, if tlie person so summoned, or any other peison, is
willing to give security to the satisfaction of the court for llie
performance l)y the apprentice of his contract of apprenticeship,
accept such security instead of or in mitigation of any punishnieiit
which it is authorized to intlict upon the apprentice.
Part II.
Procedure.
8. Mode of giving security.] A person may give secuiity under
this Act in a county court or court of summary jurisdiction by an
oral or written acknowledgment in or under the direction of the
court of the undertaking or condition by whicli and the sum for
whicli he is bound, in such manner and form as may be prescribed
by any rule for the time l)eing in force, and in any case whei'e
security is so given, the court in or under the direction of which it
is given may order payment of any sum wdiich may become due in
pursuance of such security.
The Lord Chancellor may at any time after the passing of this
Act, and from time to time make, and wdien made rescind, alter,
and add to, rules with respect to giving security under this Act.
9. Summary 2^roccedings.] Any dispute or matter in respect of
which jurisdiction is given by this Act to a court of summary juris-
diction shall be deemed to be a matter on which that court has
authority by law to make an order on complaint in pursuance of the
Summary Jurisdiction Act, l)ut shall not be eemed to be a criminal
proceeding ; and all powers by this 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 Juris-
diction Act, except that a warrant shall not be issued under that Act
for api^rehending any person other than an apprentice for failing to
appear to answer a complaint in any proceeding under this Act, and
that an order made by a court of suTumary jurisdiction under this Act
for the payment of any money shall not be enforced by imprisonment
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 summary jurisdiction which might not be taken under au
execution issued by a county court.
A court of summary jurisdiction maj' direct any sum of money,
for the payment of which it makes an order under this Act, to be
paid by instalments, and may from time to time rescind or vary such
order.
Any sum payable by any person under the order of a court of
summary jurisdiction in pursuance^of this Ad, shall be deemed to be
a debt due from him in puisuance of a judgment of a competent
court within the meaning of the fifth section of the Debtors Act,
1869, and may be enforced accordingly ; and as regards any such
196 EMPLOYERS AND WORKMEN ACT, 1875
debt a court of sunimary jurisdiction shall be deemed to 1)e a court
within the meaning ol' 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 tlie costs of any proceedings in a court of
summary juristliction, with power to provide that the same shall not
exceed the costs which 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 juiisdiction 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 and MisccdUaieons.
Definitions.
10. Dtfmitions: ■" u-orhnan:" The Summary Jurisdiction Ad."] 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, servant in husbandry, journe^nnan, artificer, handicraftsman,
miner, or otherwise engaged in manual labour, whether under the age
of twenty-one years or aboAe that age, has entered into or works
under a contract with an employer, whether the contract be made
before or after the passing of this Act, be express or implied, oral or
in writing, and be a contract of service or a contract personally to
execute any work or labour.
The expression "the Summary Jurisdiction Act" means the Act of
the session of the eleventh and twelfth years of the reign of Her
present Majesty, chajiter forty-three, intituled " An Act to facilitate
the performance of the duties of justices of the peace out of sessions
within England and Wales with respect to summary convictions and
orders," inclusive of any Acts amending the same.
The expression "court of summary jurisdiction " means
(1.) As respects the City of London, the lord mayor or any
alderman of the said city sitting at the Mansion House or
Guildhall justice room ; and
(2.) As respects 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, liorough, place, or
district for which a stipendiary magistrate is for the time
being acting, such stipendiary magistrate sitting at a
])olice court or otlier place ai)|»ointed in that behalf ; and
(4.) Elsewhere any justice or justices of the peace to whom
jurisdiction is given by the Summary Jurisdiction Act :
(88 & 39 VICT. CAP. 90). 197
Provided 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 imprisonment made by two or more justices of
the peace in petty sessions sitting at some place appointed
for holding petty ses.sions.
Nothing in this section contained shall restrict the jurisdiction of
the lord mayor or any alderman of the City of London, or of any
metropolitan police or stipendiary magistrate in respect of any act or
jurisdiction which may now be done or exercised by him out of
court.
11. Set off ill case of factory ivorJcers.] In the case of a child,
young person, or woman subject to the ptrovisions of the 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 or leaving work,
except to the amount of the damage (if any) which the employer
may have sustained by reason of such absence or leaving work.
Ajiplication.
12. Application to apprentices.'] This Act, in so far as it relates to
apprentices, shall apply only to an apprentice to the business of a
workmen as defined liy this Act upon whose binding either no
premium is paid, or the premiun (if any) paid does not exceed
twenty-five pounds, and to an apprentice bound under the provisions
of the Acts relating to the relief of the poor.
Saving Clause.
13. Saving of special jurisdiction, and seamen.'] Nothing in this Act
shall take away or abridge any local or special jurisdiction touching
ai)i)rentices.
This Act shall not apply to seamen or to aj^prentices to the sea
service.
Part IV.
Application of Act to Scotland.
14. Application to Scotland. Definitions.] This Act shall extend to
Scotland, with the modifications following ; that is to say,
In this Act with respect to Scotland —
The expression " county court " means the ordinary sheriff
court of the county :
The expression " the coiut of summary .jurisdiction " means the
small debt court of the sheriff of the county :
The expression "sheriff" includes sherifi' substitute :
The expression " instrument of apprenticeship'' means indenture:
198 EMPLOYEES AND ^YOEKMEN ACT, 1875
Tlie expre>sion " iilainlill' " or " cdiiipliiiiKint " means i)nrsuer or
coniplaintT :
Tlie expression " defendant " includes defender or respondent :
The expression "the Suinniary Jurisdictiun Act" means the
Act of the seventh year of the rei<,'n of His Majesty
Kiii^' William the Fuui'th and the first year of the reign
of Her present Majesty, chapter forty-one, intitided "An
Act for the more effectual recovery of small del its in the
sheiitf courts, and for regulating the establishment of
circuit courts for the trial of small debt causes by the
sheriffs in Scotland," and the Acts amending the same :
The expression " surety " means cautioner.
This Act shall Ije read aiid construed as if for the expression " the
Lord Chancellor," wherever it occurs therein, the expression " the
Court of Session liy act of sederunt" were substituted.
All jurisdiction, powers, and authorities neces.sary for the purposes
of this Act are hereby conferred on sheriffs in their ordinary or
small debt courts, as the case may be, who shall have full power to
make any order on any summons, petition, complaint, or other
l)roceeding under this Act, that any county court or court of
summary jurisdiction is empowered to make on any complaint or
other proceeding under this Act.
Any decree or order pronounced or made by a sheriff under this
Act shall bj enforced in the same manner ami under the same
conditions in and under which a decree or order pronounced or
made by him in his ordinary or small debt court, as the case may
be, is enforced.
Part V.
Application of Act to Ireland.
15. Apilication to Ireland.] This Act shall extend to Ireland,
with the modilications following ; that is to say,
The expression " county court " shall be construed to mean civil
bill court :
The expression "Lord Chancellor" shall be construed to mean the
Lord ChancelLjr of Ireland :
The expression "the Summary Jurisdiction Act" shall be construed
to mean, as regiuds the police district of Dublin meliopolis,
the Acts regulating the powers and duties of justices of the
peace for such district, and elsewhere in Ireland, the Petty
Sessions (Ireland) Act, 1851, and any Acts amending the
same :
The expression '-court of summary jurisdiction" shall be con-
strued to mean any justice or justices of the peace or other
magistrate to whoni jurisdiction is given, by the Summary
Jurisdiction Act :
The court of summary jurisdiction, when hearing and determining
complaints under this Act, shall in the police district of
(38 & 39 VICT. CAP. 90). 199.
Duliliu metropolis be constituted of one or more of tlie
divisional justices of the said district, and elsewhere in
Ireland of two or more justices of the peace in petty sessions
sitting at a place ajjpointed for holding' petty sessions :
The expression "tifth section of the Debtors Act, 1869," shall be
construed to mean " sixth section of Debtors Act (Ireland),
1872."
EMPLOYERS' LIABILITY ACT, 1880.
(43 & 44 Vict. Cap. 42.)
An Act to extend and regulate the Liahilitij of Employers to make
Compensation for Personal Injuries suffered by JVorkmen in their
service. [7th September, 1880.]
Be it enacted by the Queen's most Excellent Majesty, by and witli
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, Amendment of lau\] Where after the commencement of this Act
personal injury is caused to a workman :
(1.) By reason of any defect in the condition of the ways, works,
machinery, or plant connected with or used in the business
of the enqjloyer ; or
(2.) By reason of the negligence of any person in the service of the
employer who has any superintendence entrusted to him
whilst in the exercise of such superintendence ; or
(3.) By reason of the negligence of any person in the service of the
employer to whose orders or directions the workman at the
time of the injury was bound to conform, and did conform,
where such injury resulted from his having so conformed ;
or
(4.) By reason of the act or omission of any person in the service
of the employer done or made in obedience to the rules or
bye-laws of the employer, or in obedience to particular
instructions given by any person delegated with the
authority of the employer in that behalf ; or
(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, locomotive engine, or train upon a railway,
tbe worknum, or in case the injury results in death, the legal personal
representatives of the workman, and any persons entitled in case of
death, shall have the same right of compensation and remedies
against the employer as if the workman had not been a workman of
nor in the service of the employer, nor engaged in his work.
200 EMrLOYERS' LIABILITY ACT, 1880
2. Exceptions to amendment of hiv.] A woikniaii sliall not be
entitled uiuler this Act to any riglit of couiiieuHatiun or remedy
against the enipluyer in any of the following cii.sef> ; that is to say,
(1.) Under sub-section one of section one, unless the defect therein
mentioned arose from, or had not lieen disc(jvered or
remedied owing to the negligence of the employer, or of
some person in the service of the employer, and entrusted
by him with the duty of seeing that the ways, works,
machinery, or plant were in proper condition.
(2.) Under sub-section four of section one, uidess the injury
resulted from some impropriety or defect in the rules, bye-
laws, or instructions therein mentioned ; i)rovided that
where a rule or bye-law has been approvetl or has been
accepted as a proper rule or bye-law by one of Her Majesty's
Principal Secretaries of State, or by the Board of Trade, or
any other dejiartment of the Government, under or by
virtue of any Act of Parliament, it shall not be deemed for
the purposes of this Act to be an improjier or defective rule
or bye-law.
(3.) In any case where the workman knew of the defect or negli-
gence which caused his injury, and failed witliin'a reasonable
time to give, or cause to be given, information thereof to
the employer or some person su])erior to himself in the
service of' the employer, unless he was aware that the
employer or such superior already knew of the said defect
or negligence.
3. Liviit of sum recoverable as coriipensation.] The amount of com-
pensation recoverable inider this Act shall not exceed such sum as
may be found to be ecjuivalent to the estimated earnings, during the
three years preceding 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.
4. Limit of time for recovery of comjyensation.] An action for the
recovery uncter this Act of compensation for an injury shall not be
maintainable unless notice that injury has been sustained is given
within six weeks, and the action is commenced within six months
from the occurrence of the accident causing the injury, or, in case of
death, within twelve months from the time of death : Provided
always, that in case of death the want of such notii^e shall be no bar
to the maintenance of such action if the judge shall be of oinnion
that there was reasonable excuse for such want of notice.
5. Money payable under penalty to be deducted from compensation
vmder Act.] 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 or part of apenalty which
may have been paid in pursuance of tuiy other Act of Parliament to
(43 & 44 VICT. CAP. 42). 201
sucli workman, representatives, or persons in respect of the same
cause of action ; and where an action lias been brought under this
Act by any workman, or the representatives of any workman, or any
persons cLiiming by, under, or through such workman, for compen-
sation 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, representatives, 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. Trial of actions.]— {\ .) Every action for recovery of compensation
under this Act shall be brought in a county court, but may, upon the
application of either plaintiff or defendant, be removed 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.
(2.) Upon the trial of any such action in a county court before the
judge without a jury, one or more assessors may be appointed for the
purpose of ascertaining the amount of compensation.
(3.) For the purpose of regulating the conditions and mode of
appointment and remuneration of such assessors, and all matters of
procedure relating to their duties, and also for the purpose of con-
solidating any actions under this Act in a county court, and otherwise
preventing multii)licity of such actions, rules and regulations may be
made, varied, and repealed from time to time in the same manner as
rules and regulations 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 luider this Act may be removed to the
Court of Session at the instance of either party, in the manner
provided bv and subject to the conditions prescribed by section nine
of the Shenff Courts (Scotland) Act, 1877 (40 & 41 Vict. c. .50).
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. Mode of serving notice of injury.] 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 whom it is to be
served.
The notice may also be served by post by a registered letter,
addressed to the person on whom it is'to be served at his last known
place of residence or place of business ; and, if served by post, shall
20'2 workmen's compensation act, 1897
l»e tleorafd to hive been served at the time -when a letter cont<aining
the same would he delivered in the ordinary course of post ; and, in
]iroving the service of such notice, it shall be sufficient to prove that
the notice vas properly addressed and registered.
Where the emph^yer is a body of persons corporate or unincorporate,
the notice shall be served l>y delivering the same at or by sending it
by post in a registered letter addressed to the office, or, if there be
moi'e than one olfice, any one of the offices of such body.
A notice under this section shall not be deemed invalid by reason
of any defect or inaccuracy therein, unless the judge who tries the
action arising fiom the injury mentioned in the notice shall be of
opinion that the defendant in the ac^ion is i)rejudiced in his defence
by such defect or inaccuracy, and that the defect or inaccuracy was
for the purpose of misleading.
8. Definitions.] For the purposes of this Act, unless the context
otherwisi requires —
The expression " person who has superintendence entrusted to
him," means a person -whose sole or ]n'incipal duty is that of
superintendence, and who is not ordinarily engaged in manual
labour :
The expression "employer" includes a body of persons corporate
or unincorporate :
The expression "workman" means a railway servant and any
])erson to whom the Employers and AVorkmen Act, 1875
(38 & 39 Vict. c. 90), ap])lies. '
9. Commencement of Act.] 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 commence-
ment of this Act.
10. Short title.] This Act may be cited as the Emiiloyers' Liabilitv
Act, 1880, and shall continue' in force till the thirty-first day of
Decendjer, one thous md eight hundred and eighty -seven, and to the
end of tlie then next session of Parliament, and no longer, unless
Parliament shall 'otherwise determine, and all actions commenced
under tliis Act before that period shall be continued as if the said
Act had not exi)ired.
WORKMEN'S COMPENSATION ACT, 1897.
(60 & 61 Vict. Cap. 37.)
An Act to amend the Laio xoith respect to Compensation to JVorhnenfor
accidental Injuries suffered in the course of their employment.
[6th August, 1897.]
Be it enacted by the Queen's most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Teni])oral, and
(60 & 61 VICT. CAP. 37). 203
Commons, in this present Parliament assembled, and hyt'ie authority
of the same, as follows : —
1. LiahiliUj of certain employers to n-orhnen for injuries.']— {\.) If in
any eniploynient to which this Act apjjlies personal injury by
accident arising out of and in the course of the employment is
caused to a workman, his employer shall, subject as herein-after
mentioned, be liable to pay compensation in accordance with the
First Schedule to this Act.
(2.) Provided that :—
(rt.) The employer shall not be liable under this Act in respect
of any injury which does not disable the workman for a
period of at least two weeks from earning full wages at
the work at which he was employed ;
{h.) When the injury was caused by the personal negligence or
wilful act of' the employer, or of some person for whose
act or default the employer is responsible, nothing in
this Act shall affect any civil liability of the employer,
but in that case the workman may, at his option, either
claim compensation under this Act, or take the same pro-
ceedings as were open to him before the commencement
of this Act ; but the employer shall not be liable to pay
compensation for injury to a workman by accident
arising out of and in the'course of the employment both
independently of and also under this Act, and shall not
be liable to any proceedings independently of this Act,
except in case of such personal negligence or wilful act
as aforesaid ;
(c.) If it is proved that the injury to a workman is attributable
to the serious and wilful misconduct of that workman,
any com])ensation claimed in respect of that injury shall
l)e disallowed.
(3.) If any question arises in any proceedings under this Act as
to the liability to pay compensation under this Act (including any
question as to whether the employment is one to which this Act
applies), or as to the amount or duration of compensation under
this Act, the question, if not settled by agreement, shall, subject to
the provisions of the First Schedule to this Act, be settled by
arbitration, in accordance with the Second Schedule to this
Act.
(4.) If, within the time herein-after in this Act limited for taking
proceedings, an action is brought to recover damages independently
of this Act for injury caused by any accident, and it is determined
in such action that the injury is one for which the employer is not
liable in such action, but that he would have been liable to pay
compensation under the provisions of this Act, the action shall be
dismissed ; but the court in which the actit)n is tried shall, if the
plaintiff shall so choose, proceed to assess such compensation, and
shall be at liberty to deduct from such compensation all the costs
204 workmen's compensation act, 1897
which, in its jiulgment, have been cait'^ed by the plaintiff bringing
the action instead of proceeding under this Act.
In any proceeding under this sub-section, wlien the court assesses
the compensation it shall give a certificate of the coiupensation it
has aAvarded and the directions it has given a.s to the deduction for
costs, and such certificate shall have the force and effect of an award
under this Act.
(5.) Notliing in this Act shall affect any proceeding for a fine
under the enactments relating to mines or factories, or the application
of any such tine, but if any such fine, or any part tliereof, has been
applied for the benefit of the person injured, the amount so applied
shall be taken into account in estimating the compensation under
this Act.
2. Time for talcinrj proceed.mgs.'] (1.) Proceedings for the recovery
under this Act of compensasation for an injury shall not be main-
tainable unless notice of the accident has been given as soon as
practicable after the happening thereof and before the workman has
voluntarilj- left the employment in which he was injured, and unless
the claim for compensation with respect to such accident has been
made within six months from the occurrence of the accident causing
the injury, or, in case of death, within six months from the time of
death. Provided always that the want of or any defect or inaccuracy
in such notice shall not be a bar to the maintenance of such pro-
ceedings, if it is found in the proceedings for settling the claim that
the employer is not prejudiced in his defence by the want, defect, or
inaccuiacy, or that such \\ant, defect or inaccuracy was occasioned by
mistake or other reasonable cause.
(2.) 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 emjiloyer, or, if there is more
than one employei', upon one of such employers.
(3.) The notice may be served by delivering the same to or at the
residence or place of business of the person on whom it is to be served.
(4.) 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, and if served by post shall be
deemed to have been served at the time when the letter containing
the same would liave been delivered in the ordinary course of post,
and in proving the service of such notice it shall be sulHcient to
prove that the notice was properly addressed and registered.
(5.) Where the employer is a body of persons corporate or
unincorporate, the notice "may also be served by delivering the same
at, or by sending it by post in a registered letter addressed to the
employer at, the office, or, if there be more than one office, any one
of the offices of such body.
3. Contracting ou<.]— (1.) If the Registrar of Friendly Societies,
after biking steps to ascertain the views of the employer and work-
men, certihes that any scheme of compensation, benefit, or insurance
(GO & 61 VICT. CAP. 37). 205
for the workmen ot an employer in any employment, whether or
not such scheme includes otiier employers and their workmen, is
on the whiile not less favourable to the general body of workmen
and their dependants than the provisions of this Act, the employer
may, until the certificate is revoked, contract with any of those
workmen that the provisions of the scheme shall be substituted for
the provisions of this Act, and thereupon the employer shall be
liable only in accordance with the scheme, but, save as aforesaid,
tliis Act shall apply notwithstanding any contract to the contrary
made after the commencement of this Act.
(2.) The registrar may give a certificate to expire at the end of a
limited period not less than five years.
(3.) Xo scheme shall be so certified which contains an obligation
ixjion the workmen to join the scheme as a condition of their hiring.
(4.) If complaint is made to the Registrar of Friendly Societies by
or on behalf of the workmen of any employer that the provisions of
any scheme are no longer on the whole so favourable to the general
body of workmen of such emj)loyer and their dependants as the
provisions of this Act, or that the provisions of such scheme are
being violated, or that the scheme is not being fairly administered, or
that satisffictory reasons exist for revoking the certificate, the
registrar shall examine into the complaint, and, if satisfied that good
cause exists for such complaint, shall, unless the cause of complaint
is removed, revoke the certificate.
(5.) When a certificate is revoked ot expires any moneys or
securities held for the purpose of the scheme shall be distributed as
may be arranged between the employer and workmen, or as may be
determined by the Registrar of Friendly Societies in the event of a
difference of opinion.
(6.) Whenever a scheme has been certified as aforesaid, it shall be
the duty of the employer to answer all such inquiries and to furnish
all such accounts in regard to the scheme as may be made or required
by the Registrar of Friendly Societies.
(7.) The Chief Registrar of Friendly Societies shall include in his
aimual report the particulars of the proceedings of the Registrar
under this Act.
4. Suh-contrading.'] Where, in an employment to which this Act
applies, the undertakers as hereinafter defined contract with any
person for the execution by or under such contractor of any work,
and the undertakers would, if such work were executed by workmen
immediately employed by them, be liable to jmy compensation under
this Act to those workmen in lesjtect of any accident arising out of
and in the course of their employment, the undertakers sliall be
liable to' pay to any workman employed in the execution of the work
any compensation which is payable to the workman (whether under
this Actor in respect of personalnegligence or wilful act independently
of this Act) by such contractor, or would be so payable if such
contractor were an employer to whom this Act applies.
Provided that the undertakers shall, be entitled to be indemnified
20G workmen's COMrEXSATION ACT, 1897
by any other pertiou who would have been liable independently of
this section.
This section shall not apply to any contract with any person for
the execution by or under such contractor of any work which is
merely ancillary or incidental to, and is no i)art ot, or process in, the
trade or business carried on by such undertakers respectively.
5. Compensation to workmen in case of hanJcniptcy of employer.'] —
(1.) Where any employer becomes liable under this Act to pay
compensation in respect of any accident, and is entitled to any sum
from insurers in respect of the amount due to a workman under
such liability, then in the event of the employer becoming bankrupt,
or making a composition or arrangement with his creditors, or if the
employer is a comiiany of the company having commenced to be
wound up, such workman shall have a tirst charge ui)on the sum
aforesai<l for the amount so due, and the judge of the county court
may direct the insurers to pay such sum into tlie Post Office Savings
Bank in the name of the regi;-trar of such court, and order the same
to be invested or applied in accordance witii the provisions of the
First Schedule hereto wilh reference to the investment in the Post
Office Savings Bank of any sum allotted as compensation, and those
provisions shall apply accordingly.
(2.) In the application of this section to Scotland, the words " have
a tirst charge upon" shall mean " be preferentially entitled to."
6. Recovery of damages from stranfjer.] Where the injury for which
compensation is payable under this Act w-as caused under circum-
stances creating a legal Iial:)ility in some person other than the
em])loyer to pay damages in respect thereof, the workman may,
at his option, proceed, either at law against tliat person to recover
damages, or against his employer for compensation under this Act,
but not against 1)0th, and if compensation be paiil under this Act, the
employer shall be entitled to be indemnified by the said other jjerson.
7. Application of Act and definitions.']— {\.) This Act shall apply
only to employment by the undertakers as hereinafter defined, on
or 'iw. or about a railway, factory, mine, quarry, or engineering work,
and to employment by the undertakers as hereinafter defined on in
or about any building which exceeds thirty feet in height, and is
either being constructed or repaireil by means of a scaffolding, or
being demolisheil, or on which machinery driven by steam, water,
or other mechanical power, is being used for the purpose of the
construction, repair, or deninlition thereof.
(2.) In this Act—
" Railway " means the railway of any railway company to
which the Regulation of Railways Act, 1873(a), applies, and
includes a light railway maile under the Light Railways
Act, 1896 {h) ; and "railway" and" railway company" have
the same meaning as in the said Acts of 1873 and 1896 :
(./) 30 i: 37 Vict. c. 48. (J) 59 & GO Vict. c. 48.
(GO & Gl VICT. CAP. 39). 207
Factory " has the same meaning as in the Factory ami
Workshop Acts, 1878 to 1891, and also includes any dock,
■\vhart', quay, warehouse, machinery, or plant, to which any
provision of the Factory Acts is api)lied by the Factory and
Workshop Act, 1895 ((.•), and every laundry worked by steam,,
water, or other mechanical power :
"Mine" means a mine to which the Coal Mines Eegulation
Act, 1887 ((?), or the Metalliferous Mines Regulation Act,
1872(e), applies :
" Quarry " means a quarry under the Quarries Act, 1894 (/) :
" Engineering work " means any work of construction or altera-
tion or rejjair of a railroad, harbdur, dock, canal, or sewer,,
and includes any otlier work for the construction, altei-ation,
or repair of which machinery driven by steam, water, or
other mechanical power is used :
"Undertakers" in the case of a railway means the railway
company ; in the case of a factory, quarry, or laundry
means the occupier thereof within the meaning of the
Factory and Workshop Acts, 1878 to 1895 ; in the case of
a mine means the owner thereof within the meaning of the
Coal Mines Eegulation Act, 1887, or the Metalliferous
Mines Regulation Act, 1872, as the case may be, and in the
case of an engineering work means the person undertaking
the construction, alteration, or repair ; and in the case of a
building means the persons undertaking the construction,
repair, or demolition :
" Employer " includes any body of persons corporate or
unincorporate and the legal personal representative of a
deceased employer :
" Workman " includes every person who is engaged in an
employment to which this Act applies, whether by way of
manual labour or otherwise, and whether his agreement
is one of service or apprenticeship or otherwise, and is
expressed or implied, is oral or in writing. Any reference
to a workman who has been injured shall, where the
workman is dead, include a reference to his legal personal
representative or to his dependants, or other person to
whom compensation is payable :
" Dependants " means —
(a) in England and Ireland, such members of the work-
man's family speciticd in the Fatal Accidents Act,
1846 (g), as were wholly or in part dependent upon the
earnings of the workman at the time of his death ; and
(b) in Scotland such of the persons entitled according to
the law of Scotland to sue the employer for damages-
(c) 58 & 59 Vict. c. 37.
(<?) 50 & 51 Vict. c. 58. (/") 57 & 58 Vict. c. 42.
(0 35 & 30 Vict. c. 77. C'/) 'J --^ 1^ Vict. c. 93.
208 workmen's compensation act, 1897
or solutlum in respect of the cleatli of tlie workman,
as were wholly or in part depemlent upon the
earning;? of the workman at the time of his death.
(3.) A workman employed in a factory which is a shipbuilding
yard sliall not be excluded from this Act by reason only that the
accident arose outside the yard in the course of his work upon a
vessel in any dock, river, or tidal water near the yard.
8. Application to worlcmen in employment of Crovm.'] — (1.) This Act
shall not apply to persons in the naval or militai-y serAnce of the
Crown, but otlierwi.*e shall apply to any employment l)y or under
the Crown to which this Act would apply if the cniployer were a
private person.
(2.) The Treasury may, by warrant laid before Parliament,
modify for the purposes of this Act their warrant madt- under section
one of the Superannuation Act, 1887 (/i), and notwithstandinj;; anything
in that Act, or any such warrant, may frame a sclieme with a view
to its being certified by the Registrar of Fi'iendly Societies under this
Act.
9. Provision as to existing contracts."] Any contract existing at the
commencement of this Act, whereby a workman relin(|uishes any
right to compensation from the employer for personal injury arising
out of and in the course of his employment, sliall not, for the pur-
poses of this Act, be deemed to continue after the time at which the
workman's contract of service Avould determine if notice of the
determination thereof were given at the commencement of this Act.
10. Commencement of Act and short title.]— (I.) This Act shall come
into operation on the first day of July one thousand eight hundred
and ninety-eight.
(2.) This Act may be cited as the Workmen's Compensation Act,
1897.
SCHEDULES.
FIRST SCHEDULE (i).
Scale and Conditions of Compensation.
Scale.
(1.) The amount of compensation under this Act shall be —
(a) where death results from the injury —
(i.) if the workman leaves any dependants wholly dependent
upon his earnings at the time of his death, a sum equal
to his earnings in the employment of the same
(A) .50 & '>l Vict. c. G7. (/■) Sections 1, 5.
(GO & Gl VICT. CAP. 37). 209
<3mployer during the three years next preceding the
injury, or the sum of one hundred and tifty pounds,
whiciiever of those sums is the larger, but not exceeding
in any case three liundred pounds, provided that the
amount of any weekly payments made under this Act
shall be deducted from such sum, and if the period of
the workman's employment by the said employer has
been less than the said three years, then the amount of
his earnings during the suid three years shall be deemed
to be 156 times his average weekly earnings during the
])eriod of his actual employment under the said
employer ;
(ii.) if the workman does not leave any such dependants, but
leaves any dependants in part dependent upon his
earnings at the time of his death, such sura, not
exceeding in any case the amount payable under the
foregoing provisions, as may be agreed upon, or, in
default of agreement, may be determined, on arbitra-
tion under this Act, to be reasonable and proportionate
to the injury to the said dejiendants ; and
(iii.) If he leaves no dependants, the reasonable expenses of
his medical attendance and burial, not exceeding ten
pounds ;
(b) where total or partial incapacity for work results from the
injury, a weekly payment during the incapacity after the
second week not exceeding fifty per cent, of his average
weekly earnings during the previous twelve months, if he
has been so long employed, but if not, then for any less
period during which he has been in the employment of
the same employer, such weekly payment not to exceed
one pound.
(2.) In fixing the amount of the weekly payment, retrard shall be
had to the ditl'erence between the amount of the average weekly
earnings of the workman before the accident and the average amount
which he is able to earn after the accident, and to any ])ayment not
being wages which he may receive from the employer in respect of
his injury during the period of his incapacity.
(3.) Where a workman has given notice of an accident, he shall,
if so recjuired l)y the employer, submit himself for examination by
a duly cpxalified medical practitioner provided and ]>aid by the
employer, and if he refuses to submit himself to such examination,
or in any way obstructs the same, his right to compensation, and
any proceeding under this Act in relation to compensation, shall be
suspended until such examination takes place.
(4.) The payment shall, in case of death, be made to the legal
personal representative of the workman, or, if he has no legal personal
representative, to or for the benefit of his dependants, or, if he leaves
no dependants, to the person to whom the expenses are due ; and if
made to the legal personal representative shall be paid l)y him to or
M. & S. P
210 workmen's compensation act, 1897
lor tlie benefit of the dfiieiuIanU or other person entitled thereto
unJcr this Act.
(5.) Any question as to who is a dei)endant, or as to the amount
Itayable to each depenchuit, shall, in default of agreement, be settled
by arbitration under this Act.
(6.) The sum allotted as comi^ensation to a dependant may be
invested or otherwise applied for the benefit of the person entitled
thereto, as agreed, or as ordered by the connnittee or other arbitrator.
(7.) Any sum which is agreed or is ordered by the committee or
arbitrator to be invested may be invested in whole or in part in the
Post Office Savings Bank by the registrar of the county court in his
name as registrar.
(8.) Any sum to be so invested may be invested in the purchase
of an annuity from the National Debt Commissioners through the
Post Ottice Savings Bank, or be accepted by the Postmaster-General
as a deposit in the name of the registrar as such, and the provisions
of any statute or regulations respecting the limits of deposits in
savings bank, and the declaration to be made by a depositor, shall
not apjdy to such sums.
(9.) No jiart of any money invested in the name of the registrar
of any county court in the Post Office Savings Bank under this Act
shall be ]iaid out, except upon a\ithority addressed to the Postmaster-
General by the Treasury or by the judge of the county court.
(10.) Any person deriving any benefit from any moneys invested
in a post oiiice savings bank under the provisions of this Act may,
nevertheless, open an account in a post office savings bank or in any
any other savings bank in his own name without l)eing liable to any
penalties imposed by any statute or regulations in respect of the
opening of accounts in two savings banks, or of two accounts in the
same savings bank.
(11.) Any woi'kman receiving weekly jiaynients under this Act
shall, if so refiuired by the employer, or by any person by whom the
employer is entitled under this Act to be indenniitied, from time to
time submit himself for examination by a duly qualified medical
practitioner provided and paid l)y the employer, or such other
person ; but if the workman objects to an examination by that
medical practitioner, or is dissatisfied by the ceitificate of such
practitioner upon his condition when communicated to him, he may
submit himself for examination to one of the medical practitioners
appointed for the purposes of this Act, as mentioned in the Second
Schedule tj this Act, and the certificate of that medical practitioner
as to the condition of the workman at the time of the examination
shall be given to the employer and workman, and shall be conclusive
evidence of that condition. If the workman refuses to submit him-
.self to such examination, or in any way olistructs the same, his right
to such weekly payments shall be susi)ended until such examination
has taken jJace.
(12.) Any weekly payment may be reviewed at the request either
of the employer or of the workman, and on such review may be
(60 & 61 YiCT. c.vp. 37). 211
ended, dimini.slied, or increased, subject to the maximum above
provided, and the amount of payment shall, in default of agreement,
be settled by arbitration under this Act.
(13.) Where any weekly payment has been continued for not less
than six months, the lialiility therefor may, on the application by
or on behalf of the employer, be redeemed by the payment of a lump
sunij^to be settled, in default of agreement, by arbitration under this
Act, and such lump sum may be ordered by the committee or arbi-
trator to be invested or otherwise applied as above mentioned.
(14.) A weekly payment, or a sum paid by way of redemption
thereof, shall not be capable of being assigned, charged, or attached,
and shall not pass to any other person by operation of law, nor shall
any claim be set oft' against the same.
(15.) Where a scheme certified under this Act provides for payment
of comjiensation by a friendly society, the provisions of the proviso
to the first sub- section of section eight, section sixteen, and section
forty-one of the Friendly Societies Act, 1896 (k), shall not apply to
such society in respect of such scheme.
(16.) In the application of this schedule to Scotland the exjjression
" registrar of the county court " means " sheriflp clerk of the county,"
and "judge of the county court " means " sheriff'."
(17.) In the application of this Act to Ireland the provisions of
the County Officers and Courts (Ireland) Act, 1877 (I), with respect to
money deposited in the Post Office Savings Bank under that Act
shall apply to money invested in the Post Office Savings Bank
under this Act.
SECOND SCHEDULE (m).
Arbitration.
The following provisions shall apply for settling any matter Mdiich
imder this Act is to be settled by arbitration : —
(1.) If any committee, representative of an employer and his work-
men exists with power to settle matters under this Act in the case of the
employer and workmen, the matter shall, unless either party objects,
by notice in writing sent to the other party before the committee
meet to consider the matter, be settled by the arbitration of such
committee, or be referred by them in their discretion to arbitration
as hereinafter provided.
(2.) If either party so objects, or there is no such committee, or the
committee so refers the matter or fails to settle the matter within
three months from the date of the claim, the matter shall be settled
by a single arbitrator agreed on by the parties, or in the absence of
agreement by the county court judge, according to the procedure
(/.) .^0 & fiO Vict. c. 2.->. (0 40 & 41 Vict. c. 5G. (w) Section 1.
F 2
212 workmen's compensation act, LS97
prescrilied by rules of court, or if in EiiL;lan(I the Lonl Chancellor
so authorizes, according to the like procedure, by a single arbitrator
apjiointed by such county court judge.
(3.) Any arbitrator appointed by the county court judge shall, for
the pur])()ses of this Act, have ail the ])0\vers of a county court
judge, and shall be paid out of moneys to Ite ])rovided by Parliament
in accordance with regulations to be made by the Treasury.
(4.) The Arbitration Act, 1889(«), shall not api)lyto any arbitration
under this Act ; but an arbitiator may, if he thinks fit, submit any
question of law for the decision ot the county court judge, and the
decision of the judge on any question of law, either on such
submission, or in any case where he himself settles the matter under
tliis Act, shall be linal, unless within the time and in accDrdance with
the conditions ])rescril)ed l)y rules of tlie Supreme (Jourt eitliei' party
appeals to the Court of Ai)peal ; ami the county court judge, or the
arl)itrator appointed l)y him shall, for the purpose of an arbitration
under this Act, have the same powers of procuring the attendance of
witnesses and the production of documents as if the claim for
compensation had been made by plaint in the county court.
(5.) Rules of court may make pro\ision for the appearance in any
arbitration under this Act of any p:\rty by some other person.
(6.) The costs of and incident to the arbitration and proceedings
connected therewith shall be in the discretion of the arbitrator. The
costs, wliether before an arliitrator or in the county court, shall not
exceed the limit prescribed by rules of court, antl shall be taxed in
manner prescribed by those rules.
(7.) In the case of the death or refusal or inability to act of an
arbitrator, a judge of the High Court at Chaudiers nuiy, on the
application of any party, appoint a new arliitrator.
(8.) Where the amount of compensation under this Act shall have
been ascertained, or any weekly payment varied, or any other matter
decideil, under this Act, either by a committee or by an arbitrator or
by agreement, a memorandum thereof shall Ite sent, in manner
prescribed by rules of court, by the said committee or arbitrator, or
by any party interested, to the registrar of the county court for the
district in wliicli any person entitled to such compensation resides,
who shall, subject to such rules, on being satisfied as to its genuineness,
record such memorandum in a special register without fee, and
thereupon the said memorandum shall for all purposes be enforceable
as a county court judgment. Provided that tlie county court judge
may at any time rectify such register.
(9.) Where any matter under this Act is to be done in a county
court, or by to or before the judge or registrar of a county court,
then, unless the contrary intention appear, the same shall, subject to
rules of court, be done in, or by to or before the judge or registrar
of, the county couit of the district in which all the parties concerned
(«) 52 & 53 Vict. c. 49.
(60 & 01 VICT. CAP. 37). 213
reside, or if they reside in different districts the district in whicli
tlie accident out of whicli the said matter arose occurred, without
prejudice to any transfei- in manner pruvided by rules of court.
(10.) The duty of a county court judge under this Act, or of an
arljitrator ap])ointed by hinV, shall, subject to rules of court, be part
of the duties of the county court, and tlie officers of the court sliall
act accordingly, and rules of court may be made both for any purpose
lor which tliis^ Act authorizes rules of court to be made, and also
generally for carrying into effect this Act so far as it affects the
county court, or an arbitrator appointed Ijy the judge of the county
cour^,"^ and proceedings in the county court or before any such
arliitrator, and such rules may, in England, be made by the five
judges of the county courts appointed for the making of rules under
section one hundred and sixty-tour of the County Courts Act, 1888(o),
and when allowed by the Lord Chancellor, as provided by that
section, shall have full effect without any further consent.
(11.) No court fee shall be payable by any party in respect of any
proceeding under this Act in thi county court prior to the award.
(12.) Anv sum awarded as compensation shall be paid on the
receipt of the person to whom it is payable under any agreement or
award, and his solicitor or ageut shall not be entitled to recover from
him, or to claim a lien on, or deduct any amount for costs from, the
said sum awarded, except such sum as may be awarded by the
arbitrator or county court judge, on an api)lication made by either
party to determine the amount of costs to be paid to the said solicitor
or agent, such sum to be awarded subject to taxation and to the scale
of costs prescribed by rules of court.
(13.) The Secretary of State may appoint legally qualified medical
practitioners for the purpose of this Act, and any conunittee,
arbitrator, or judge may, subject to regulations made by the Secretary
of State and the Treasury, appoint any such practitioner to report
on any matter ^s'hich seems material to any que-'tion arising in the
arbitration ; and the expense of any such medical practitioner shall,
subject to Treasury regulations, be })aid out of moneys to be provided
by Parliament.
(14.) In the a|iplication of this Schedule to Scotland —
{a,.} "Sheriff" shall be substituted for "county court judge,"
" sheriff court " for " county court," "action " for "plaint,"
" sheriff clerk " for " registrar of the county court," and
"act of sederunt" for •' rules of court : "
Q).) Any award or agreement as to comjiensation under this Act
may be competeutly recorded for execution in the books
of council and session or sheriff courc books, and shall
be enforceable in like manner as a recorded decree
arbitral :
(c.) Any application to the sheriff as arbitrator shall be heard,
tried, and determined summarily in the manner provided
00 51 & 52 Vict. c. id.
214 workmen's COMrEXSATION ACT, 1S97
bv the fifty-second section of the Sheriff Courts (Scotland)
Act, 1876 (p), save only that parties may be represented by
any person authorized in writinj,' to ajipear lur thcui ;uid
subject to the declaration that it shall be conii)t'tent to
either i»arty within the time and in accordance with the
conditions prescribed by act of sederunt to require the
sherilf to state a case on any question of law determined
by him, and his decision thereon in such case may be
submitted to either division of the Court of Session, who
may hear and determine the same tinally, ;xnd remit to
the sherill' with instruction as to the judgment to be
]ironounced.
(15.) Paragraphs four and seven of tliis schedule shall not apply to
Scotland.
(16.) In the application of this schedule to Ireland the expression
" county court judge " shall include the recorder of any city or
town.
(/;) 39 & 40 Vict. c. 70.
The Yearly . .
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COMI'HISINO
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By MuiR Mackenzie, Lushington, and Fox.
2. Yearly County Court Practice,
By Cx. I'iTT- Lewis, Q.C, Sir ('. Ai:n(ij.i> White, and A. Read.
3. Yearly Justices' Practice,
Being 5tone's Justices' Manual.
4. Yearly Digest of Reported Cases,
By Beal.
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INDEX.
Abbott, Chief Justice, 165.
Abinger, Lord,
on lialiility of master for injury to his servant, 66.
on common employment, 72, 73.
on doubtful cases of who is the master, 99.
Absenting Unlawfully, ground for dissolving apprenticeship, 166
Accidents,
to servants, 66.
caused by fellow servants, 72.
compensation for, 76, 78, 79.
master's liability for. Hee Master and Liability.
Action,
of master against servant, 50.
third parties, 61.
of servant against master, 27, 32.
third parties, 90.
Actor, injunction to restrain, 22.
Agent, distinguished from servant, 4.
Agreement,
to serve, not agreement to employ, 19.
between master and servant, 104.
Agricultural Labourers,
as servants, 2.
hiring of general, 17.
Alderson, Baron,
on restraint of trade, 30.
on reasons for dismissal, 43.
on common employment, 73.
on liability of servant for contracts, 121.
Alien Trades, and apprenticeship, 157.
Alvanley, Lord, on medical aid to servants, 57
Amphlett, Baron, 2.
Apprentices,
a class of servants, 2.
Statute of, 152.
marriage of, 168.
harbouring, 169.
INDEX.
AvrnKSTiCEH—continned.
habeas corpns to bring up, 1G9.
earnings of, 170,
misconduct of., 17(\
chaslisement of, 170.
must 1)6 tauglit by master, 170, 172.
resident with master, 171.
assignment of, 171.
may sue master on covenants, 172.
under firm of partners, 172.
■wages of, 172.
may be recjuired to instruct others, 173.
overtime l>y, 173.
AVdrkiiig on Sundays and llank Holidays, 173.
emigration of, 175.
parish, 175.
to the sea service, 178.
dischai'ge of, 178.
transference of, 178.
visitation of, 179.
registration of, 179.
Apprenticeship,
definition of, 151.
the contract of, 151.
by imlenturo, 158, 177.
verbal, 159.
technical words not necessary, 158.
suretj', 157.
assent of apprentice essential, 159.
teaching of its essence, IGO.
must not be disadvantageous to the infant apprentice, 1G3.
premium, 159, 100, 1G7.
covenants in, independent, 161.
stamp, 1(51.
term, IGo.
dissolution of, 105.
by parol, 169.
parties to the contract, 157.
rights and duties of the parties, 169.
histoiy of, 152.
City of London and, ir)5.
settlement gained liy, Kid.
umler Watermen and Li.;htermen's Act, 1859. ..171.
the Employers and Workmen's Act, 1875.. .174, 194, 195, 197.
Reformatory and Industnal Schools Acts, 175.
]);irish, 175.
under the pool' law of Elizabeth, 175.
compulsory, abolished, 170.
to sea .service, 178.
INDEX.
Assault,
by master in servant's defence, G3.
by servant in master's defence, 63.
Assignment, of apprentice, 171.
Author, 18,
Authority,
by necessity, 95.
express or implied, 101.
scope of implied, 102.
examples of implied, 106,
Bailee, distinguished from servant, 5.
Bailiff,
as tenant, 8.
no authority to pledge master's credit, 109
Bakers, laws regarding, 115.
Bank Holiday, working on, 173.
Bank Manager, 124.
Bankruptcy,
of master,
etlect on contract of hiring, 33.
apprenticeship, 168
of servant,
wages of, 31.
Act, 1883... 31, 34.
Bayley, Baron, 114.
Bayley, Mr. Justice, 129, 137, 140
Best, Chief Justice, 29, 35.
Blackburn, Mr. Justice,
on definition of master and servant, 1.
on giving a false character, 147.
on misconduct of apprentice, 166.
Blackstone,
on definition of master and servant, 1
on chastising servant, 50.
on maintenance, 61.
Book-keeper, 106.
Boots, 18.
BowEN, Mr. Justice, 5.
INDEX.
Bramtv-ell, Baron, 4, 43, 63.
Breakages, by servant, 19, 28.
Burglary, by servant, 123.
Burn's Justice of the Peace, 11.
Cab Driver,
servant of cab owner, 5.
action for endorsing licence, 145.
Cab Proprietor, 5.
Cairns, Lord, on liability of master for servant's injury, 67.
Campbell's Act, 63, 76, 181.
Campbell, Lord, 5, 7, 143.
Canon op a Cathedral, as tenant, 8.
Carelessness, master liable for, in case of injury to servant, 68.
Carter, 124.
Chairman of a Public Meeting, 2.
Chambre, Mr. Justice, 57.
Channell, Baron, 19.
Character,
law regarding, generally, 132.
master not obliged to give a, 132.
a privileged communication, 133.
false character must be malicious to support action, 133.
when question of malice may be submitted to jury, 135.
malice must be directly proved, 141.
action by shopwoman relative to, 137.
action by governess, relative to, 138.
acti(jn by sclioolmaster relative to, 138.
second-band knowledge may be privileged, 139.
adverse information may be given aftei- good character, 141.
statements to tliird parties when privileged, 142.
statements by third parties when privileged, 143.
malicious stateniL-nt regarding —
must be actional lie in themselves, 145.
or cause special damage, 144.
endorsing a written character, 145.
giving a false, 146.
by schoolmaster, 146.
by policeman, 146.
bv governess, 146.
Servants Characters Act, 1792... 147.
INDEX.
Chastisement,
of servant by master, 50.
of apprentice by master, 1 70.
Chelmsford, Lord, 75.
Chitty, Mr. Justice, 173.
Clerks,
as servants, 20.
to master of workhouse, 13.
embezzlement by, 128.
length of notice to, 16, 35.
dismissal of, 35, 40.
illness of, 44.
capacity and status of, 48.
must account for moneys received, 51.
in bank, 124, 125, 126."
larceny by, 124, 125.
Coal and Metalliferous Mines Regulation Acts, 71
CocKBURN, Chief Justice, 5, 6.
Cohabitation, of servant with master, 29
Coleridge, Mr. Justice, 62.
Coleridge, Lord Chief Justice, 9, 35.
collaborateur. see common employment.
Collateral, servant cannot bind master in matters, 110.
Colliers, as tenants, 8.
Colville, Sir J., 96.
Commercial Traveller, 18, 35.
Common Employment,
doctrine of, 72.
examples of, 77.
how affected by Employers' Liability Act, 78.
Common Law, liability of master for injury of servant, 66.
Compensation, for accidents, 76, 78, 79.
Conciliation Act, 1896. ..32.
Contractor,
distinguished from servant, 2.
superintendent to railway contractor, 39.
liability of, 82.
when not liable, 83.
INDEX.
Contract of Hirixg and Sehvick,
deHiiition ol", 14.
parties to, 1.
in writing, Statute of Fraud.-^, 14.
verbal, 15.
remedy for breach of, 20.
in restraint of trade, 29, 30.
illegal and immoral, 29.
servant absolved from, if additional risk, 31.
dissolution of, 33.
•wlien not binding tliougli in writing, 31.
consideration for, 23.
of api)renticesliip, 15.
injunction to enforce, does not lie, 20.
Corn Factor, 125.
Coming of Age, as ground for dissolving apprenticeship, 1G5.
Corporal Punishment. See Chastisement.
Consideration,
express or implied, 23.
legacy as, 23.
aderpiac}' of, 29.
on a qnantum meruit, 23.
good and bad in same contract, 29.
See Wages.
Conspiracy to interfere with contract of service, 22.
Conspiracy and Protection of Property Act, 1875... 15G, 183.
Contagious Diseases (Animals) Act, 1894. ..IIC.
Conversion, liability of servant for, 118.
Corporations,
as master, 12.
liability of, for their servants, 91.
appointment of servants by, under seal, 130.
Councils of Consideration Act, 1867... 32.
County Court,
recovery of wagi s in, 31.
jurisdiction of. See Employ'ers and Workmen's Act, 1875.
Court of Chancery, 51.
jurisdiction of, 173.
Covenants,
in apprenticeship independent, 161.
in apprenticeship must not be disadvantageous to infant, 162.
INDEX.
Cranworth, Lord, 74.
Cresswell, Mr. Justice, 51, 86.
Criminal Acts,
of servant, master civilly liable, 87.
liability of servant for, 123.
Customs and Inland Eevenue Act, 1869. ..22.
Customs Collectors, 120.
Damage, by servant, 51.
Damages,
when servant liable in, 50.
for enticing away apprentice, 169.
for seduction, 65.
Danger, orders accompanied by, 49.
Dangerous Machinery, 71.
Daughter, as servant of father, 63.
Death op Master,
determines contract of hiring, 33.
deterniines contract of apprenticeship, 178.
revokes servant's authority to pledge credit, 112.
Death op Servant, 33.
Definition,
of master and servant, 1.
of apprenticeship, 151.
of larceny, 124.
of embezzlement, 128.
Denman, Chief Justice, 35, 135, 138.
Different Kinds of Servants, 1.
Discharge, 38. See Dismissal.
Dismissal,
unjust dismissal of servant, 27.
on death of master, 33.
notice, 34.
by companies on going into li(j^uidation, 34.
of domestic servants, 34.
of clerks, commercial travellers, governesses, 35.
of editors and newspaper correspondents, 36.
INDEX.
Dismissal — continued.
of apprentices, 165 — 7.
without notice, 3G.
Avlien justitialile. See DISSOLUTION of Contbact.
reason for dismissal need not be known, 42.
for disobeying domestic regulations, 49.
Disobedience, dismissal for, 36.
Dissolution of Contract of ITirtng, 33.
by death of master or servant, 33.
by bankruptcy of master, 33.
by companies'^on going into liquidation, 34.
change of employers, 34.
change in tirni of partnei's, 34.
by notice in case ol domestic servants, 34.
other servants, 35.
by notice when justifiable, 36.
for wilful disobedience to lawful orders, 36.
grossly immoral conduct, 38.
incompetence, 39.
unskilfulness, 39.
negligence, 40.
permanent illness, 44.
District Delegate, of a trade union, 5.
Dolben, Mr. Justice, 153.
Domestic Servants,
distinguished from others, 1.
general hiring of, 15.
dismissal of, by notice, 34.
what length of notice re(iuirod, 34.
illness of, 29, 54.
not within Emplovers and "Workmen's Act, 1875. ..196.
not within Emph.\n-rs' Liability Act, 1890.. .199.
not wilhiii Wnrkmen's Cumi)ensation Act, 1897.. .202.
Driver, 0.
Drover, 5, 82.
Drunkenness, as a ground for dismissal, 38.
Duty, on male servant, 22.
Duties,
of servant, 45.
to obey lawful orders, 45.
to be I'easonable, 48.
to be diligent, 50.
INDEX.
Duties — continued.
of master —
to be careful, 51.
to protect young servants, 51.
to pay wages, 52.
to provide food if agreed on, 52.
how far to provide medical attendance, 54.
to indemnify servant for consequences of obeying lawful
orders, 59.
Earnings,
of servant, master entitled to, 49.
of apprentice, 170.
Editors,
nature of hiring, IS.
length of notice of dismissal, 36.
Effluxion of Time, dissolving contract of apprenticeship, 165.
Eldon, Lord, 54.
Ellenborough, Lord, 24, 47, 89, 103, 108, 160.
Embezzlement,
definition of, 128.
• as a ground for dismissal, 27, 39.
Act, 127.
Emigration, of apprentices, 175.
Employer's and Workmen Act, 1875... 192.
verbal contract imder, 15.
settling disputes regarding wages, 32, 193.
definition of workman, 79, 196.
regarding apprenticeship, 164, 165, 174, 194.
Employers' Liability Act, 1880.. .71, 78, 175, 199.
Engineer,
nature of hiring of, 17.
serving executors after death of master, 33.
Enlisting,
ground for dissolving apprenticeship, 166.
Enticing Away,
of servant, 61.
when action does not lie for, 62.
of apprentice, 169.
Erle, Chief Justice, 4, 8.
INDEX.
EsHER, Lord, M.R., 6, 11, 41, 95, 1G4.
Executors,
of master employing servant, 33.
apprentice, 167.
Factory and Workshops Acts, 71.
False Character, giving l)y servant, 46.
Farm Bailiff, 71.
Fellow Workmen, 72—76.
Fkmalf, Skuvaxt,
iiuuriage of does not dissolve contract of hiring, 11.
Food, when duty of master to supply, 52.
Food and Drugs Act, 1875... 11 6.
Foreman, 18.
Fraud,
by servant, master's liability for, 87.
liability of servant for, 119.
Frauds, Statute of, 14, 45.
Fry, Lord Justice, 76, 164.
<jAMBLING, as a ground for dismissal, 39, 41.
Gardener, a menial servant, 1.
Gas Companies — liability for nuisances, 116.
•Gaselee, Mr. Justice, 57.
General Hiring,
what it means, 15.
of domestic servants, 15.
of otlier servants, 16.
General Manager, 12.
0::neral Order, of July 24th, 1847. ..176.
Governess,
not a menial servant, 2.
en itled to three mouths notice, 35.
misconduct of, ])revious to service, 38.
action V)y, for giving false cliaracter, 138.
describing herself falsely, 146.
INDEX.
Government Servants, liability of, 97, 120
Governor of a Gaol, as tenant, 8.
Gross Misconduct,
as ground for dissolving apprenticesliij), 165.
Grossly Immoral Conduct, a ground for dismissal, 38
Grove, Mr. Justice, 5, 17, 159.
Guardians, their duties to parish apprentices, 176
Guilds, their relation to apprenticeship, 152.
Habeas Corpus, to bring up apprentice, 169.
Hackney Carriage Acts, 5.
Hampton Court, occupiers of as tenants, 8.
Harbouring an apprentice, 169.
Heath, Mr. Justice, 57.
Herschell, Lord,
on restraint of trade, 30.
on liability of master, 60.
on common employment, 76.
Hiring, contract of. See Contract.
Holroyd, Mr. Justice, 50.
Holt, Chief Justice, 107, 111, 116, 118
Horses, warranty for by servant, 105.
Hospital Surgeon, held a servant, 7.
Hotel Keeper, liable for his servants' negligence, 90.
Housekeeper, not a menial servant, 2.
Huntsman, a menial servant, 1.
Husbandry, servants in, 2.
Illegal, when contracts of hiring are, 29.
Illness as a ground for dismissal, 44.
Illtreatment as a ground for dissolving apprenticeship, 168
M. & S. Q
INDEX.
Immoral,
contracts of hiring not binding, 29.
conduct a ground for dismissal, 38.
Implied authority, 106.
Inciting servant to rob master indictable, 130.
Incompetence as ground for dismissal, 39.
Indecent Assault as ground for discharge, 38.
Indemnify,
duty of master to, a servant for consequences of obeying lawful
orders, 59.
Indenture, 151.
Indictment,
under revenue laws, 114.
licensing laws, 115.
Public Health Act, 1875.. .117.
Food and Drugs Act, 116.
Pharmacy Act, 116.
Pawnbrokers Act, 116.
Contagious Diseases (Animals) Act, 116.
of bakers, 115.
for nuisances, 116.
Infants,
as servants, 9.
as master, 9.
as apprentices, 163.
Injunction,
as a remedy for breach of contract of hiring, 20.
communicating trade secrets, 21.
against an actor, 22.
Injury,
of master by servant, 50.
of servant, liability of master for, 66.
Innkeepers, liability of, for their servants, 90.
Inventions by servants, 49.
Jessel, Sir George, M.R., 6.
Jobmaster, 3.
Junius, letters of, 113.
Justices,
jurisdiction of. See Employers and Workmen's Act, 1875.
INDEX.
Xenyon, Lord,
on the rights and duties of masters and servants, 45.
medical aid for servants, 54, 56, 57.
enticing away servants, 62.
seduction, 64.
private agreement between master and servant, 104.
master's liability for servant's warranty, 105.
servant obtaining money wrongfully, 122.
servant's character, 132.
Statute of Apprentices, 153.
contract of apprenticeship, 159.
habeas corpus to bring up apprentice, 169.
King, Chief Justice, 123.
Knowledge by servant of risk attending employment, 70.
Labourers, 2.
Land Tax Commissioners, 25.
Larceny,
definition of, 124.
by carter, 124.
bank manager, 124.
bank clerk, 125.
porter, 125.
stableman, 126.
Larceny Act, 1861. ..127, 128.
includes female servants, 129.
apprentices, 129.
travellers, 129.
clerks of corporations, 130.
superintendent of police, 129.
servant of two partners, 130.
Le Blanc, Mr. Justice, 56.
Legacy to servant by master, 23.
Liability,
of master for injury to servant, 66.
if negligent, 67.
if not supplying sound tackle, 67.
if not selecting servants carefully, 68.
if personally interfering, 69.
double, 100.
to third parties,
civilly for criminal acts of servant, 87
for torts of servant, 80, 84 — 87.
for contracts of servant, 101.
q2
INDEX.
liiAmi.iT^- -continued.
of master — continued.
nou-existeut, 111.
alter servant's dismissal, 111.
if contributory negligence by servant, 69.
if servant in cumniou employment, 72 — 76.
if servant act outside scope of his authority, 91, 108.
if servant act illegally, 95.
if master parted with whole control, 96.
if master obliged to employ servant by statute 96.
if superior public olhcer, 97.
in collateral matters, 110.
for warranty of servant, 105.
for one not his servant, 107.
of contractors for their servants, 82.
of corporations, 91.
of innkeepers, 90.
of lodging-house keepers, 91.
of proprietors of public conveyances, 89.
of railway companies, 90.
of superior public oilicers, 97.
of telei^raph companies, 98.
■ of tramway companies, 93.
of trustees, 91.
of master for crimes of servant, 1 13.
for libels by servant, 113, 114.
of servant for torts, 118.
for conversion, 118.
for contracts, 120.
lor crimes, 123.
Libels in newspapers, 113.
Licensing Act, 1872. ..115.
Licensing Laws, 115.
LiNDLEY, Mr. Justice, 89.
Littledale, Mr. Justice, 81, 104, 138, 140.
LiVEUY, servant not entitled to retain, 20.
Local Authouities as masters, 12.
Lodging-house Keepeus, liability of,7or thuir servants, 91.
London Vestries, 13.
Lord Campbell's Act, G3, 76.
Losses by Servant, 19, 28, 51.
INDEX.
Lunatics,
as servants, 11.
as masters, 11.
Lyndhurst, Lord, 60.
Machinery, dangerous, 71.
Maintenance, 61.
Male Servant, duty on, 22.
Malice,
in giving character, 1.35.
must be directly proved, 141.
Manager, of bank, 124.
Mansfield, Lord,
on medical attendance for servant, 55.
on defence of servant by master, 63.
on malice in giving a character, 133.
on the Statute of Ajipreutices, 153.
Manslaughter, when master may be charged with, 53.
Manual Labour,
as test of workmen under Employers and Workmen's Act, 1875,
79.
Manufacturer's Agent, 17.
Marriage, of female servant, 11.
Married Woman,
as servants, 9, 11.
as master, 9.
in apprenticeship, 157.
Property Act, 9, 157, 177.
Master,
definition of, 1.
death of, revokes authority in servant, 112.
who may be, 8.
infants as, 9.
married woman as, 9.
lunatics as, 11.
partners as, 11.
corporations as, 12.
not obliged to provide medical aid, 29, 54.
bankruptcy of, 33.
rights of, 45.
entitled to servant's earnings, 49.
may chastise young servants, 50.
rights of, against servant for injury, 50,
INDEX.
Master — continued.
duty of, to protect young servants, 54.
pay Wixges agreed on, 52.
provide food if so agreed, 52.
indemnify servant, 59.
legacy by, to servant, 23.
cannot recover from servant for illegal act, 60.
rights of, against tliird parties, 61.
may defend his servant from assault, 63.
has right of action for debauching his servant, 63.
lialjility of, for injury to servant, 66.
who is the, 98.
when master not liable, 91 — 98.
liability for torts of servant, 80.
crimes of servants, 113.
contracts of servant, 101.
not liable if servant act beyond authority, 108.
not bound by servant's statements outside scope of business, 109.
not liable for servant in collateral matters, 110.
not liable for servant after his dismissal, 111.
not entitled to open and search servant's property, 131.
not obliged to give a character, 132.
relation to apprentice. -See Apprenticeship or Apprentices.
of a ship, 5.
of a school, 41,
Master and Servant Act, 1867.. ,15.
Medical Attendance,
master not obliged to provide servant with, 29, 54.
poor law authorities bound to supply, 55.
Menial Servants, meaning of, 1.
Merchant Shipping Act, 1894.. .96.
Metropolitan Management Act, 1855. ..13.
Militia Sergeant, as servant, 7.
Misconduct of servant as ground for dismissal, 36, 38.
Month,
a month's notice, when required, 34.
wages in lieu of a month's notice, 35,
Municipal Corporations,
as master, 12.
Act, 1835... 156.
Murder,
when master may be charged with, 53,
by servant, 123.
INDEX.
Mutuality, in contract of hiring, 19.
Mutual Consent, dissolving con tract of apprenticeship, 165.
Name, liability of servant using his own, 121.
Naval, captain off duty not liable for lieutenant, 97.
Negligence,
as a ground for dismissal, 40.
to provide food by master, 53.
Newspaper,
correspondents, 36.
proprietor convicted for libel, 60.
editor, 18, 36, 60.
libel, 113, 114.
Notice to leave,
length of, for menial servants, 34.
clerks, 35.
editors, 36.
when not required, 36.
reasons for giving, 42.
Nuisances, 116.
Obedience, how far duty of servant to obey master, 59.
Obstructing highway, and liability of master, 82.
Offences, of servant against master, 123.
Officers, liability of superior public, for inferior, 97, 120.
Omnibus, liability of owner for driver of, 94.
O3INIS RATIEABITIO BETROTRAHITUR ET MAXDATO PRIORI EQUIP-
ARATUR, 112.
Opera Singer,
as servant, 2.
enticing away an, 62.
Order, general. Poor Law, of July 24th, 1847.. .176.
Orders,
of master must be reasonable, 46, 47.
what are reasonable, 46, 47.
accompanied by danger, 49.
domestic, 49.
INDEX.
Ostler, 18.
Overseers, 120.
Overtime, by apprentices, 173.
Palmerston, Lord, 143.
Parent, action by, for seduction of cliild, G.3.
Parish Apprentices,
Poor Law of Elizabeth, 175.
settlement gained by, 176.
general order, 1847, regarding, 176.
taken by married women, 177.
to sea service, 178.
discharge of, 178.
transference of, 178.
registration of, 179.
visitation of, 179.
Parke, Baron, 43.
Parke, Mr. Justice, 40, 140.
Parties,
to contract of hiring, 1.
to contract of apprenticeship, 157.
Partner,
distinguished from servant, 7.
as master, 11.
apprentices to, 157.
Partnership,
dissolution of, as ground foi' tLMiiiiuating api)rentic('sliip, 168.
Patent, servant's right to, 49.
Pawnbrokers Act, 1872.. .116
Penal Acts, 114.
Penalty. See Penal Acts.
Permanent,
employment, 19.
illness of apprentice, 167.
Per Procuration, 121.
Petit Treason, 123.
INDEX.
Pharmacy Act, 1867... 11 6.
Pilots, liability of employer for, 196.
Poor Law Authorities, bound to supply medical aid, 55.
Poor Law,
of Elizabeth, 175.
law of settlement, 156.
Porter, 125.
Postmaster-General, not responsible for his subordinates, 97, 120.
Preferential Payments Act, 1888... 34.
Premium,
of apprentice, 169.
return of part of, 167.
Prima Donna, a servant, 2.
Private Orders, to servant not binding on third parties, 104.
Privileged,
communications regarding character of servant, 1.33, etseq.
words spoken to policeman on giving servant in charge, 143.
magistrate in preferring comj)laint, 143.
when statements to third parties, 142.
by third parties, 143.
communication by shipping assurance society to owner of
vessel, 144.
Proprietors of Public Conveyances, liability of, 89.
Public Health Act, 1875. ..12.
Public Officers,
if superior, not responsible for subordinates, 97, 1 20.
Public Conveyances, 89.
Quantum meruit, when servant entitled to, 20, 23, 27.
Quarry, nuisance from, 116.
Quasi-Criminal Acts, 114.
Qui facit per alium, pacit per sk, 80, loi.
INDEX.
Railway Company,
liability of for acts of servants, 90.
station nmster, 92, 109.
general maua^'er, 109, 110.
ticket examiner, 93.
fellow servants under, 76.
volunteers aiding servants of, 78.
employers' liability and, 78.
Rate Collector, as servant, 12.
Ratification, by master of servant's acts, 100, 112.
Reasonable,
master's orders should be, 46.
servant should not be unreasonable, 48.
orders accompanied by danger, not, 49.
Reciprocal, rights and duties of master and servant are, 45.
Recovery of Wages, by servant, 31.
Reformatory and Industrial Schools Act, 1891. ..175.
Regulations, domestic, by master, 49.
Relations, as servants, 52.
Remedy, of servant for unjust dismissal, 27.
Removal, of business of master releasing apprentice, 168
RESPOyDJEAT SuPERIOIt, 120.
Restraint op Trade, 29, 30, 31.
Returning Officers, 120.
Revenue Laws, 114.
Rights,
of master, 45.
of servant, 45.
Robbery. See Larceny.
Romilly, Sir J., 173.
RooKE, Mr. Justice, 57.
Russell Gurney's Act, 128.
Sale, servant giving warranty at, 105.
INDEX.
Schoolmaster,
wrongly dismissed, 41.
giving false character, 146.
Sea Service, apprenticeship to, 178.
Seal, for hiring of corporation servants, 12.
Secrets, of trade, divulging of by clerks, 21.
Seduction,
action liy parent, 63.
by others, 65.
damages lor, 65.
must allege loss of service, 65.
Selling, on commission, 4.
Servant,
definition of, 1.
who may be, 8.
different kinds of, 1.
distinguished from contractor, 2.
distinguished from agent, 4.
distinguished from bailee, 5.
distinguished from partner, 6.
as tenant, 7.
duty on, 22.
may have two masters, 8.
infants as, 9.
married women as, 9.
breakages by, 19.
losses by, 19.
permanent employment of, 19.
general hiring of, 15.
yearly hiring of, 17.
when entitled to a quantum meruit, 20.
legacy to, by master, 23.
capacity of, 48.
status of, 48.
dismissal of. See Dismissal.
rights and duties of, 45.
illness of, 44.
inventions by, 49.
when liable in damages, 50.
injury oi master by, 50.
indemnification of by master, 59.
enticing away, 61.
may defend his master from assault, 63.
claim against master for injury. See Liability op Master.
torts of, when master liable for, 81.
criminal acts of, master civilly liable for, 87.
INDEX.
Servant — continiied.
fraud of, lialiility of master for, 87.
trespass by, 88.
mutinous acts of, 95.
of railway companies, 89.
of innkeepers, 90.
of lodging-house keepers, 90.
of corporation^!, 91.
authorit}' of to contract for master, 101.
.'Statements of, how far binding on master, 109.
when a special agent, 111.
liability of for torts, 118.
conversion, 118.
wantojr injury, 119.
fraud, 119.
crimes, 123.
to third parties, 118.
giiilty of murder, 123.
burglary, 123.
larceny, 124.
embezzlement, 127.
character of, 132.
Character Act, 1792, ,.147.
Settlement, law of, and apprenticeship, 156, 176.
Shipmaster, 5.
Skill,
servants professing, 39.
dismissal for want of, 39.
Smith, Adam, on apprenticeship, 154.
Smoke Nuisance, 117.
Soldier, apprentice enlisting as, 166.
Solicitor, as servant, 12.
Special Damage, from malicious statement in giving character, 144.
Specific Performance, not decreed in contracts of personal
service, 20.
Stamp Act, 1891... 158.
Stamps,
ref[uired on an instrument of apprenticeship, 161.
when required for servants, 22.
Starving servants, 53.
Statement of Servant, 158.
how far binding on master, 109.
INDEX.
Status of servants, 48.
Statute Law Revision Act, 1861... 127.
Statute of Frauds, 14, 45.
Statute of Limitations, applies to wages, 28.
Stealing. See Larceny, Embezzlement.
Stevedores, 3.
injury to, 68.
Steward, must account for moneys received, 51.
Sub-Contractor. See Contractor.
Sundays, working on, 173.
Superintendent of Police, a servant under Larceny Act, 129.
Superior Public Officers, not resijonsible for subordinates, 97, 120.
Surety, of parent for apprentice, 157.
Surgeon,
of hospital not a tenant, 7.
attending pauper, 55.
Surveyor of Highways, not liable, 157.
Tackle, master must supply sound, 67.
Tax, on servants. See Stamps.
Taunton, Mr. Justice, 58.
Telegraph Companies, liability of for their servants, 98.
Tenant, as servant, 7.
Tender Years, 53.
Tbnterden, Lord, 106, 140.
Term,
of hiring, 15.
of apj)renticeship, 160, 177.
Theft,
as a ground for dismissal, 39.
as ground or dissolving apprenticeshij), 166.
INDEX.
Thesiqer, Lord Justice, 10.
Third Parties,
masters' liability to, for torts of servants, 81.
TiNDAL, Chief Justice, 18, 42, 63.
Toll Collector, a servant, 7.
Torts,
of servant, master's liability for, 81.
servant's liability for, 118.
Trade, restraint of, 29, 30.
Trades Union Act, 1871. ..31.
Trading Companies, as master, 12.
THAinVAY,
liability of company for acts of servants, 93.
conductor not within Employers and Workmen Act, 1875,
70, 71.
Treason, murder formerly petit treason, 123.
Trespass, by servant at command of master, 88.
Trustees, liability of, 91.
Tutor,
discharge of, 41.
Unlawful, act by contractor, 83.
Unreasonable, serv'ant must not be, 48.
Unskilfulness, as a ground for dismissal, 39.
LTrban Authorities, as masters, 12.
User, does not alone render master liable, 112.
Verbal contract of hiring, 15.
Victuals. See Food.
Volenti non fit injuria, 70, 71.
Volunteers, 77.
INDEX.
Volunteer Kegulations, regarding apprentices, 166.
Wages,
as consideration, 23.
on a quantum meruit, 23.
when they cannot be claimed, 23.
extra wages for extra work, 25.
when absent from temporary illness, 26.
what wages payable if servant dismissed, 26.
receipts for, 27.
application of, when master responsible for, 27.
when servant bankrupt, 31.
when servant may recover though agreement not in writing, 31
recovery of, by servant, 31.
Statute of Limitations applies to, 28.
duty of master to pay, 52.
of apprentice, 172,
for overtime, 173.
Waggoner, liable for parcel carried for his own profit, 119.
Want of Skill, in servants, 39.
Wanton Injury, servant liable for, 119.
Warranty, master's liability for servant's, 105.
Warning. See Notice.
Watermen and Lightermen,
Act, 1859... 97.
company, freemen of, 97.
Wensleydale, Lord, 92, 95, 145.
Wesleyan Minister a servant, 7.
Westbury, Lord, 119.
Wife. See Married Woman.
Will, legacy to servants in, 23.
Willis, Mr. Justice, 87.
Winding Up, payment of wages on, 34.
Wightman, Mr. Justice, 95.
Work,
how far master obliged to find, 19.
remuneration for extra, 25.
Workman. See Employers and Workmen Act, 1875.
INDEX.
Workmen's Compensation Act, 1897. ..79, 202.
Words, actionable in themselves, 145.
Writing, when contract of hiring mu^t be in, 14, 45.
Wrongful Discharge. See Dismissal.
Wrongs. See Torts.
Yearly Hiring,
of agricultural labourer, 17.
of engineer, 17.
of manager of a shop, 17.
of manufacturer's agent, 17.
of author of magazine articles, 18.
of editors, 18.
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