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 tine Cornell University Library. 
 
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 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022346021 
 
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(JnrnpU ICaui ^rl^nnl ICibraty 
 
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 (53 & 54 Vict. c. 42). 
 By W. Addington Willis, LL.B. (Lend.), of the 
 Inner Temple, Barrister-at-Law. Price 2s. 8d., post 
 free. 
 
 " His labours will greatly help tlie students of this Act in 
 understanding and comprehending its provlsions."~./ws(ice of 
 the Peace. 
 
 " The author has added clear and copious npigs, and there 
 is a good index." — Law Times. 
 
 "A helpful text book, clear in its exposition and directions, 
 and admirably indexed." — North Eastern Daily Gazette. 
 
 Euegg's Employers' Liability Act. 
 
 The Employers' Liability Act, 1880 (42 & 43 Viet, 
 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 Tery excellent little treatise . . . contains abundant 
 evidence of care and labour." — JiL&tice of the Peace. 
 
% f ato 
 
 OF 
 
 MASTER AND SERVANT 
 
 WITH A CHAPTEE 
 
 APPRENTICESHIP. 
 
 EENEST ALBEET PA.EKYN, M.A., 
 
 Of the Inner Temple, Barrister-at-Laio. 
 
 BUTTEEWOETH & CO., 7, FLEET STEEET, B.C. 
 
 SHAW & SONS, 7 & 8, EETTEE LANE, E.C. 
 
 Xaw iprinters an5 ipublfsbeijs. 
 
 1897. 
 
LONDON : PRINTED BY SIIAWAND SONS, FETTEE LANE AND CRANE COURT, B.C. 
 
PREFACE, 
 
 "DECENT 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. , a 3 
 
Yl PEBPACE. 
 
 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 important. 
 
 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 Eeport 
 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, Temple, E.G., 
 Octoh&r, 1897. 
 
CONTENTS. 
 
 Preface 
 
 conteitts 
 
 Table of Statutes 
 Table or Cases ... 
 Addenda 
 
 PAGE 
 V 
 
 vii 
 
 ... viii 
 
 ix 
 
 ...xxxiv 
 
 Chap. 
 
 I. The Parties to tlie Contract ... ... ... l 
 
 n. The Contract of Hiring and Service 14 
 
 III. The Consideration — Wages 23 
 
 rV. Dissolution of the Contract — Discharge 33 
 
 V. The Eights 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 80 
 
 IX. Liability of the Master to Third Parties for the Contracts 
 
 of his Servant ... ... 101 
 
 X. Liability of the Master for Crimes of his Servant 113 
 
 XI. Liability of the Servant to Third Persons 118 
 
 XII. Criminal Liabilify of the Servant 123 
 
 XIIL Character 132 
 
 XIV. Apprenticeship ... ... .,, ... 151 
 
 Appendix OF Statutes .. 181 
 
 Index. 
 
 ai 
 
TABLE OF STATUTES. 
 
 PAGE 
 
 12 Rio. 2, 0. 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 
 
 21Jao. 1, i;. 16 28 
 
 14 Car. 2, c. 12 157 
 
 29 Car. 2, o. 3 14 
 
 3 W. &M. 0. 11 157 
 
 8&9W. 3, 0. 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, u. 56 147 
 
 32Geo. 3, o. 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 
 
 54Geo. 3,0.96 155,158 
 
 56 Geo. 3, c. 139 157, 178 
 
 9 Geo. 4, 0. 31 123 
 
 1 & 2 Will. 4, u. 22 5 
 
 3 & 4 Will. 4, u. 63 158 
 
 5 & 6 Will. 4, c. 76 156 
 
 6 & 7 Will. 4, c. 37 115 
 
 6&7 Vict. c. 86 5 
 
 6cfe7yiot. c. 96 114 
 
 7&8 Vict. c. 101 176 
 
 9 & 10 Vict. u. 93 63, 76, 181 
 
 14 & 15 Vict. u. 11 53, 179 
 
 14 & 15 Vict. c. 100 127 
 
 18 & 19 Vict. 120 13 
 
 19 & 20 Vict. 0. 64 157 
 
 22 & 23 Vict. .0. 123 71, 97 
 
 24 & 25 Vict. c. 95 53, 127 
 
 24 & 25 Vict. -c. 96 127 
 
 24 & 25 Vict. 0. 100... 53, 123, 178 
 
 26 & 27 Vict. c. 103 126 
 
 27 & 28 Vict. c. 95 182 
 
 29 & 30 Vict. u. 117 175 
 
 PAGE 
 
 29&30 Vict. c. 118 175 
 
 31 & 32 Vict. o. 116 128 
 
 31 & 32 Vict. c. 121 116 
 
 32 & 33 Vict. c. 14 22 
 
 33 & 34 Vict. c. 93 10 
 
 34 & 35 Vict. c. 31 31 
 
 34 & 35 Vict. c. 116 150 
 
 35 & 36 Vict. c. 77 71 
 
 35 & 36 Vict. 0. 93 116 
 
 35 & 36 Vict. u. 94 115 
 
 36 & 37 Vict. u. 66 20 
 
 37 & 38 Vict. c. 50 10 
 
 37 & 38 Vict. c. 62 9 
 
 38 & 39 Vict. c. 55 12,117 
 
 38 & 39 Vict. c. 63 116' 
 
 38 & 39 Vict. c. 86 ...53, 156, 171, 
 
 183 
 
 38 & 39 Vict. c. 90 ... 15, 32, 79, 
 
 164, 165, 172, 174, 175, 192 
 
 39 & 40 Vict. c. 16 22 
 
 41 & 42 Vict. c. 16 71 
 
 42 & 43 Viet. c. 49 128 
 
 43 & 44 Vict. V. 42 ... 71, 78, 175, 
 
 199 
 45 & 46 Vict. u. 75 9, 157, 177 
 
 45 & 46 Vict. c. 87 32 
 
 46 & 47 Vict. c. 52 31, 34 
 
 46 & 47 Vict. c. 53 71 
 
 47 & 48 Vict. c. 43 150 
 
 48 & 49 Vict. c. 69 52 
 
 50&51 Vict. u. 58 71 
 
 51 & 52 Vict. c. 62 34 
 
 51 & 52 Vict. c. 87 32 
 
 53 & 54 Vict. c. 39 6 
 
 54 & 55 Vict. c. 23 175 
 
 54 & 55 Vict. c. 39 ...22, 158, 161 
 54.&55 Vict. u. 75 71 
 
 55 & 56 Vict. u. 19 53 
 
 56&57 Vict. c. 60 96 
 
 57 & 58 Vict. c. 57 116 
 
 57 & 58 Vict. c. 60 ... 178 
 
 59 & 60 Vict. c. 30 32 
 
 60 & 61 Vict. 0. 37 79, 202 
 
TABLE OF CASES. 
 
 A. 
 
 Abrahams v. Deakin, [1891] 1 Q. B. 586 ... 
 Adamson v. Jarvis, 4 Bing. 66 ; 12 Moore, 241 
 Alexander v. Mackenzie, 6 C. B. 766 
 Alexander v. Southey, 5 B. & Aid. 247 ... 
 
 Alsop V. Yates, 27 L. J. Ex. 156 
 
 Amor V. Fearon, 9 A. & E. 548 ; 1 P. & D. 398 
 
 Andrews v. Askey, 8 C. & P. 7 
 
 Andrews v. Garstein, 31 L. J. 0. P. 15 ; 10 C. B. (N 
 7 Jur. (N.s.) 1124 ; 4 L. T. 580 ; 9 W. R. 782 
 
 Andrews v. Pugh, 24 L. J. Ch. 58 
 
 Anon i;. Harrison, 12 Mod. 346 
 
 Arding v. Lomax, 24 L. J. Ex. 80 
 
 Armstrong v. South London Tram. Co. , 64 L. T. 96 
 Arnold v. Poole, 4 M. & G. 860 ; 5 So. N. E. 741 ; 12 L. J. 
 
 7 Jur. 643 
 
 Ashby V. White, 1 Salk. 19 ; 1 Smith L. C. 227 
 Ashton V. Spiers & Pond (1893), T. L. R. 606 ... 
 Ashworth v. Stanwix, 30 L. J. Q. B. 183 ; 3 E. & 
 
 4L. T. 85; 7 Jur. (K.s.)467 
 
 Aspden v. Austin, 5 Q. B. 671 ; 13 L. J. Q. B. 155 
 
 Atkin V. Acton, 4 C. & P. 208 
 
 Atkins V. Pearce, 26 L. J. C. P. 252 ; 2 0. B. (n 
 
 3 Jur. (N.s.) 1180 
 
 Att.-Gen. v. Siddon, 1 Cro. J. 220 ; 1 Tyr. 41 ... 
 
 Auckland, The Earl of, 30 L. J. Ad. 124 
 
 Austin V. Bethnal Green, 43 L. J. C. P. 100 ; 29 L. 
 
 38 J. P. 248 ; L. R. 9 C. P. 91 ; 22 W. R. 406 , 
 
 ,) 444; 
 
 P. 97; 
 
 PAOB 
 
 93 
 
 59 
 
 11 
 
 119 
 
 70 
 40 
 65 
 
 38 
 
 6 
 
 112 
 
 40 
 
 31 
 
 12 
 
 120 
 
 94 
 
 ;. 701; 
 
 11,' 
 
 763; 
 
 T. 807; 
 
 19 
 
 38 
 
 109 
 
 114 
 
 96 
 
 13 
 
 B. 
 
 Baillie v. Kell, 4 Bing. N. C. 638 
 Baldry v. Bates, 52 L. T. 620 
 
 42 
 105 
 
TABLE OP CASES. 
 
 PAGE 
 
 Bamfield v. Massey, 1 Camp. 460 65 
 
 Banks ('. Crossfield, 44 L. J. M. C. 8 ; 32 L. T. 226 ; 10 Q. B. 97 ; 
 
 23W. R. 414 15 
 
 Barber i;. Dennia, 1 Salk. 68 ; 6 Mod. 69 170 
 
 Barrett V. Deere, Moo. & M. 200 107 
 
 Barry t). Arnaud, 10 A. & E. 646 120 
 
 Barry i). Dublin Tram. Co., 26 L. R. Ir. 150 93 
 
 BartonsMll i'. McGuire, 3 Macq. 309 75 
 
 BartonsMlI 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 ?;. Burfield, 2 Stra. 1266 167,171 
 
 Baxter v. Nurse, 6 M. & G. 938 ; 13 L. J. C. P. 82 18 
 
 Beckham u. Drake, 9 M. & W. 79 11 
 
 Bell V. Drummond, 1 Peake, 65 ... ... ... 25 
 
 Bedford 1). McKowl, 3 Esp. 119 65 
 
 Beeston v. CoUyer, 4Bing. 309 ; 12 Moore, 552 14, 16 
 
 Bennett ■». Alcot, 2 T. R. 166 64 
 
 Bergheim v. S. E. R. Co., 17 Q. B. D. 215 90, 93 
 
 Bertie t'. 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 ; 45L. J. Q. B. 209; 34 L. T. 246 ; 
 
 24W. R. 551 44 
 
 Beveridge v. Beveridge, L. R. 2 So. Ap. 183 ; 2 Paters. 1976... 12 
 
 Bird t'. McGahey, 2 C. & K. 707 24 
 
 Bird P. Randall, 3 Burr. 1345 27,62 
 
 Birkett D. Whitehaven, 28 L. J. Ex. 348 90 
 
 Bishop r. Letts, 1 F. & F. 401 22 
 
 Blades D. Tree, 9 B. & C. 169 112,122 
 
 Blake w. Lanyon, 6 T. R. 221 62 
 
 Bloxam iJ. Elsie, 1 C. & P. 558 50 
 
 Boastu.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 11. Lambert, 58 L. J. Ch. 425 112 
 
 Bond w. 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. Peate, 1 Q. B. D. 321 ; 45 L. J. Q. B. 446 84 
 
 Brace V. Calder, [1895] 2 Q. B. 253 .'' 34 
 
 Bracegirdle ^). Heald, 1 B. & Aid. 722 14,45 
 
 Brady 1J. 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 1). Hayward, Car. & M. 591 23 29 
 
TABLE OF CASES. 
 
 XI 
 
 PAGE 
 
 61 
 
 36 
 
 95 
 
 170 
 
 20 
 
 Breay v. Royal Nurses Association, 1 W. N. (1897) 63 
 
 Brennan v. Gilbart Smith, 8 T. L. R. 284 
 
 Bridge v. G. J. R. Co., 3 M. & N. 244 !. 
 
 Bright «;. Lucas, 2 Peake, 121 
 
 Britain v. Rossiter, 11 Q. B. D. 123 ; 48 L. J. Ex. 362 ; 
 
 40 L. T. 240 ; 27 W. R. 482 
 
 Britton v. G. W. Cott. Co., 7 Ex. 130; 41 L. J. Ex. 99; 
 
 27 L. T. 125 ; 20 W. R. 525 71 
 
 Brooks u. Dawson, 33 J. P. 720 158,168 
 
 Brooks ?>. Hassall, 49 L. T. 669 105 
 
 Brown jj. Chapman, 6 C. B. 365 131 
 
 Brown D. Copley, 7 M. & G. 566 86 
 
 Brown V. Croft, 6 C. & P. 46 27 
 
 Brown v. Foot, 61 L. J. M. C. 160 116 
 
 Brown t). Hall, 6 Q. B. D. 333 62 
 
 Brown?). Symons, 29 L. J. C. P. 251; 8 C. B. (n.s.) 208; 
 
 8 W. R. 460; 5 Jur. (N.s.) 1079 18 
 
 Bryant «. Plight, 5 M. & W. 114 24 
 
 Brydon v. Stewart. 2 Maoq. 30 ; 1 Paters. 447 67, 68 
 
 Brunsden ?'. Humphrey, 53 L. J. Ex. 476 100 
 
 Buckingham v. Surrey, 46 L. T. 685 ; 46 J. P. 774 17 
 
 BuUer v. Harrison, Cowp. 565 ... ... ... 122 
 
 Burgess v. Gray, 1 C. B. 578 ; 14 L. J. C. P. 184 84 
 
 Burleigh V. Stibbs, 5 T. R. 465 160 
 
 Burnley i;. Carson, [1891] 1 Q. B. 75 158 
 
 Burnley v. Jennings, 6 Bsp. 8 ... ... 160 
 
 Bush D. Steinman, 1 B. & P. 404 82 
 
 Butler I). Basing, 2 C. & P. 613 90,119 
 
 Butterfield V. Forrester, 11 Bast, 60 95 
 
 C. 
 
 CaUo V. Brouneker, 4 C. & P. 518 36, 37, 40 
 
 Cameron v. Nystrom, [1893] App. Cas. 308 77, 97 
 
 Carey i;. Webster, 1 Stra. 480 118,122 
 
 Carol i>. Bird, 3 Esp. 202 132 
 
 Carr «. Clarke, 2 Chit. Rep. 260 63 
 
 Carus w. Eastwood, 32 L. T. 8-55 15 
 
 Chamberlain V. Bennett, 8 T. L. R. 234 36 
 
 Chandler v. Broughton, 1 C. & M. 29 ; 3 Tyr. 220 ... 95, 96 
 Charles v. Blackwell, 45 L. J. C. P. 542 ; L. R. 2 C. P. 161 ... 106 
 Charleston v. London Tram. Co., 36 W. R. 367 93 
 
Xll TABLE OP CASES. 
 
 PAGE 
 
 Chesterfield's case, 2 Salk. 479 159,160 
 
 ■CUld V. Affleck et Ux., 9 B. & C. 403 ; 4 M. & Ry. 388 ... 140 
 
 Cherry v. Hemming, 4 Ex. 631 ; 19 L. J. Ex. 63 
 ^Chipchase's case, 2 East. P. C. 567 ; 2 Leach, 699 
 
 Chisholm v. Doulton, 22 Q. B. D. 736 
 
 Churchward v. Chambers, 2 F. & F. 229 
 
 Clark V. Bury St. Edmunds, 26 L. J. C. P. 12 ; 1 C. B. (n. s. ) 23 
 Cockayne v. Hodgkinson, 5 C. & P. 543 
 
 Collins V. Locke, L. B. 4 App. 674 ; 48 L. J. P. C. 68 ; 41 
 
 . 15 
 . 125 
 . 117 
 37,48 
 7 
 . 143 
 
 30 
 
 27 
 12 
 58 
 
 L. T. 292; 28 W. R. 189.. 
 Collins V. Price, 5 Bing. 132 
 <:!ontraot Co., Re, 8 Eq. 14 ... 
 Cooper V. PhiUips, 4 C. & P. 581 
 Cooper V. Simmons, 31 L. J. M. C. 138 ; 5 L. T. 712 ; 7 H. & 
 
 N. 707; low. R. 270; 8 Jur. (N.s.)81 158,167 
 
 Cooper V. Slade, 6 H. L. C. 793 ; 27 L. J. Q. B. 449 ; 4 Jur. 
 
 (N.s.)791 114 
 
 €orn 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 
 
 Coulbourn )'. Patmore, 1 C. M. & R. 73 60 
 
 Coup^ Co. ('. Maddick, [1891] 2 Q. B. 413 87 
 
 Coventry u. Woodhall, Hob. Rep. 134 171,172 
 
 Cowan i;. Milbourn, 36 L. J. Ex. 124 43 
 
 Cowles«.Potts,34L.J.Q.B.247; 1 1 Jur. (n. s. ) 946 ; 13W.R.858 143 
 Cox V. Midland Rail. Co., 48 L. J. Ex. 65 ; 3 Exo. 268 ... 109 
 
 Coxhead v. MuUis, 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 r. White, 1 Scott, 314; 1 Bing. N. C. 414 118 
 
 Crane v. Powell, 38 L. J. C. P. 43 ; 20 L. T. 703 ; L. R. 4 
 
 C. P. 123 ; 17 W. R. 161 15 
 
 Crocker n. Molyneux, 3 C. & P. 470 20 
 
 Croft w. Alison, 4 B. & Ad. 590 ..,' 81,86 
 
 Crofts V. Waterhouse, 3 Bing. 321 gg 
 
 Orowther v. Ramsbotham, 7 T. R. 754 42 
 
 Cuckson V. Stones, 28 L. J. Q. B. 24 ; IE. & B. 248 • 
 
 7 W. R. 134; 5 Jur. (N.s.)337 ' 26,44 
 
 Cullen V. Thompson, 6 L. T. (n.s.) 870; 9 Jur. (n.s.) 85- 
 
 4 Macq. 424; 2 Paters. 1143 ' jjg 
 
 Cundy V. Lecocq, 13 Q. B. D. 207 ; 53 L. J. M. C. 125 • 51 
 
 L. T. 265; 48 J. P. 599; 32 W. R. 769 ' ... II5 
 
 Cunningham v. Fonblanque, 6 C. & P. 44 ... on 
 
 Cussons V. Skinner, 11 M. & W. 171 ; 12 L. J. Ex. 347 37 42 
 
 'Cutter u. Powell, 6 T. R. 826 ' jg 
 
TABLE OF CASES. 
 
 XllI 
 
 D. 
 
 PAGE 
 Dalyell v. Tyrer, 28 L. J. Q. B. 52 ; E. B. & E. 899 ; 5 Jur. 
 
 (N.s.)335 3 
 
 Daiisey v. Eiohardaon, 3 E. & B. 144 ; 23 L. J. Q. B. 217 ... 9 
 Davey v. Shannon, 48 L. J. Ex. 459 ; 40 L. T. 628 ; 4 Ex. D. 81 ; 
 
 27W. R. 599 15 
 
 Davidson II. Stanley, 2 M. & G. 721 109 
 
 Davies i'. Davies, 9 0. & P. 89 52 
 
 Davies v. England, 33 L. J. Q. B. 321 ; 10 Jur (n.s.) 1235 ... 68 
 
 Davis, Ex parte, 5 T. R. 715 165 
 
 Davis w. Foreman, [1894] 3 Ch. 654 21 
 
 Davis t). Mann, 10 M. & W. 546 95 
 
 Davis V. Marshall, 4 L. T. (N.s.) 266; 9 W. R. 520 17 
 
 Davis ■«. Russell, 5 Bing. 354 131 
 
 Davison «. Reeves, 8 T. L. R. 391 33 
 
 Dean II. Braithwaite, 5 Esp. 36 98 
 
 Debenham v. Mellon, 5 Q. B. D. 394 ; 6 App. Cas. 24 ; 50 L, 
 
 Q. B. 155 ; 43 L. T. 673 ; 29 W. R. 141 ; 45 J. P. 252 
 De Francesco ?;. Barnum, 43 Ch. 165 
 
 De Erancesco v. Barnvim, 45 Ch. D. 430 
 
 De Eranceseo v. Barnum, 63 L. T. 514 ; 6 T. L. R. 486 
 
 Degg V. Midland Rail. Co., 26 L. J. Ex. 171 ; 1 H. & N. 773 ; 
 
 3 Jiu-. (]<f.s.)395 
 
 Ditcham v. Bond, 2 M. & S. 436 
 
 Dixon V. Eawcus, 30 L. J. Q. B. 137 
 
 Dixon V. Renter, 46 L. J. Q. B. 197 
 
 Dobson V. CoUis, 25 L. J. Ex. 267 ; 1 H. & N. 81 
 
 Dobson V. Jones, 13 L. J. C. P. 126 ; 5 M. & G. 112 ; 8 Sc. 
 
 N. B. 80 
 
 Donaldson v. Williams, 1 Or. & M. 345 ; 3 Tyr. 371 .. 
 
 Donovan ?;. Laing, [1893] 1 Q. B. 629 
 
 Down V. Pinto, 9 Ex. 327 ; 23 L. J. Ex. 103 
 
 Dunkley w. Ferris, 11 C. B. 457 
 
 Dunn V. Sayles, 5 Q. B. 685 ; 13 L. J. Q. B. 159 
 
 Dyer v. Munday, [1895] 1 Q. B. 742 
 
 Dynen v. Leach, 26 L. J. Ex. 221 
 
 Dyte V. St. Pancras, 27 L. T. 342 ; 36 J. P. 375 
 
 10 
 173 
 162, 164 
 62 
 
 78 
 63 
 59 
 98 
 15 
 
 7 
 11, 34 
 74,97 
 . 19 
 . ■ 87 
 . 19 
 88, 93 
 68, 70 
 . 12 
 
 E. 
 
 Eatoa V. Western, 9 Q. B. D. 636 ; 52 L. J. Q. B. 41 ; 47 L. T. 
 .593i.47J. P. 196 158,162,168,172 
 
XIV TABLE OP CASES. 
 
 PAGE 
 
 Edden «. Read. 3 Camp. 339 121 
 
 Edmondson B. Machell, 2 T. R. 4 65 
 
 Bdmondson v. Stevenson, Bull. N. P. 8 133, 141 
 
 Edwards v. Levy, 2 r. & F. 94 37 
 
 Blborough w. Ayres, L. R. 10 Eq. 367 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 
 EUis V. Sheffield Gas Co., 2 E. & D. 767 ; 23 L. J. Q. B. 45 ... 84 
 Emmens v. Elderton, 4 H. L. C. 624 ; 13 C. B. 495 ; 18;jur. 21 19 
 
 Engelhart v. Farrant, [1897] 1 Q. B. 240 85 
 
 Evans t;. 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 
 
 P. 
 
 Pairman v. Oakford, 29 L. J. Ex. 459 ; 5 H. & N. 635 ... 18 
 
 Parquhari'. Naish, 17 Ct. of Sess. Cas. 716 (So.) 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 
 
 Fawcettv. Cash, 5 B. & Ad. 904; 3 N. & M. 177 15,35 
 
 Fellows w. 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 D. Taylor, 9 B. & C. 59 112 
 
 Ferris i). Carr, 54 L. J. Ch. 478 [ 167 
 
 Pewings v. Tisdal, 1 Ex. 295 27 
 
 Filleul V. Armstrong, 7 A. & E. 557 ; 2 N. & P. 406 ; 1 Jur. 921 .. . 42 
 Fletcher v. Krell, 42 L. J. Q. B. 55 ; 28 L. T. 105 ... 38,'147 
 
 Flood J). 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 
 
 Pores «. Wilson, 1 Peake, 55 63 64 65 
 
 Forgan 1). Burke, 12 It. C. L. R. 495 .'.. ' 16 
 
 Fowler v. Lock, 41 L. J. C. P. 99 ; 43 L. J. C. P. 394 ; 31 
 
 L. T. 844; L. R. 10 C. P. 90 ; 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 g 
 
 Foreman v. Canterbury (Mayor of), 40 L. J. Q. B. 138 ... 83 
 
 Foster v. Charles, 6 Bing. 396 ; 7 Bing. 105 ; 4 M. & P. 741 .„ 146 
 
TABLE OF CASES. XV 
 
 PAGE 
 
 Foulger i>. Newcomb, 36 L. J. Ex. 169 146 
 
 Fountain v. Boodle, 3 Q. B. 5 ; 2 G. & D. 455 138, 139 
 
 Fryer v. Kinnersley, 33 L. J. C. P. 98 ; 15 0. 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. 
 
 GaUagher v. Piper, 33 L. J. C. P. 329 ; 16 C. B. (n.s.) 669 ... 77 
 Gambier v. Lydford, 3 E. &B. 346 ; 23 L. J.M.C. 69 ; 18 Jur. 352 8 
 
 Gandall V. Pontigny, 1 Stark. 198 27,35 
 
 Gardner v. Slade and wife, 13 Q. B. 796 ; 18 L. J. Q. B. 334 ; 
 
 13 Jur. 826 141 
 
 Garth t!. Howard, 8 Bing. 451 110 
 
 Geakes v. Jackson, 36 L. J. 0. P. 108 106 
 
 Gibson ?;. Carruthers, 8 M. & W. 343 31,34 
 
 Gilpin V. Fowler, 23 L. J. Ex. 152 ; 9 Ex. 615 ; 18 Jur. 292 ... 138 
 
 Gingell «. Glasscock, 8 Bing. 86 107 
 
 Girardy v. Richardson, 1 Esp. 13 ; 1 B. & P. 340 29 
 
 Gratland V. Freeman, 3 Esp. 85 Ill 
 
 Gray t). Cookson, 16 East, 13 160,166 
 
 Gray I). Pullen, 34 L. J. Q. B. 265 84 
 
 G. W. Rail. Co. v. WilHs, 34 L. J. C. P. 195 ; 18 C. B. (n.s.) 748 110 
 
 Greenway i). Fisher, 1 C. & P. 190 118 
 
 Gregory V. Cottrell, 5 E. & B. 571 107 
 
 Gregory t). 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. E. 797 79 
 
 Griffiths V. Gidlow, 27 L. J. Ex. 405 ; 3 H. & N. 648 .., ... 70 
 Griffiths V. London and St. Katherine Dock Co., 19 Q. B. D. 259 ; 
 
 53 L. J. Q. B. 504; 51 L. T. 533; 33 W. R. 35 68 
 
 Grimston !;. Cunningham, [1894] 1 Q. B. 125 22 
 
 Grinnell v. Wells, 7 M. & G. 1042; 14 L. J. C. P. 19; 
 
 8 Jur. 1101 ; 8 Sc. N. R. 741 63, 65 
 
 Grizzle ?;. Frost, 3 F. & F. 623 71 
 
 Grylls D. Davis, 2 B. & Ad. 516 59 
 
 Gunter D. Astor, 4 Moore, 12 169 
 
 Gwilliam v. Twist, [1895] 2 Q. B.|84; 64 L. J. Q. B. 474 ... 51, 
 
 95, 109 
 Gylbert v. Fletcher, Cro. Car. 179 162, 170, 173 
 
 Hall V. Hollander, 4B. & 0. 660 
 
 63 
 
XVI TABLE OP CASES. 
 
 PAGE 
 
 Halliwell i;. (Jounsell, 38 JL. T. 176 168,170 
 
 Hammond v. Rogers, 7 Moore P. C. C. 160 96 
 
 Hamon 1). Falle, L. R. 4 App. Gas. 247 144 
 
 Manila, The, 36 h. J. Ad. 1 96 
 
 Hargreave V. Le Breton, 4 Bur. 2425 ... ... ... ... 134 
 
 Harmer v. Cornelius, 28 L. J. C. P. 86 ; 5 C. B. (n.s.)236; 
 
 4 Jur. (n.s.) 1110 39 
 
 Harper v. Luftkin, 7 B. & C. 387 ; 1 M. & Ry. 166 64 
 
 Harrington o. Churchward, 29 L. Ch. 521 ; 6 Jur. (n.s.) 576; 
 
 8W. R. 302 e 
 
 Harris v. Carter, 3 E. & B. 559 ; 23 L. J. Q. B. 295 ; 18 
 
 Jur. 1014 25 
 
 Harris ti. Thompson, 13 C. B. 333 141 
 
 Harrison v. Bush, 25 L. J. Q. B. 25 ; 5 E. & B. 344; 1 
 
 Jur. (N.s.) 896 143 
 
 Hartley r. Cummings, 5 C. B. 247 ; 17 L. J. C. P. 84 19 
 
 Hawta3rne ti. Bourne, 7 M. & W. 595 109 
 
 Hazard «. Treadwell, 1 Stra. 506 103 
 
 Hedgley I). Holt, 4 C. & P. 104 28 
 
 Hedley v. Pinkney & Sons, [1894] App. Cas. 222 177 
 
 Helyear w. Hawke, 5 Esp. 72 105 
 
 Henkel D. Pape, 40 L. J. Ex. 15 Ill 
 
 Hern u. Nichols, 1 Salk. 285 87,107 
 
 Hilton V. Eckersley, 25 L. J. Q. B. 199 ; 6 E. & B. 47 ; 2 
 
 Jur. (N.s.) 587 30 
 
 Hiseox V. Greenwood, 4 Esp. 174 108 
 
 Hitchcock V. Coker, 6 A. & E. 438 ; 1 N. & P. 796 29 
 
 Hobbs t>. Young, 3 Mod. 317 153 
 
 Hoohster v. De la Tour, 2 E. & B. 678 ; 22 L. J. Q. B. 455 • 
 
 17 Jur. 972 ' 45 
 
 Hodaall i>. Stallybrass, 11 A. & E. 301 63 
 
 HodsoU V. Taylor, 43 L. J. Q. B. 14 ; L. R. 9 Q. B. 79 • 
 
 29 L. T. 53 ; 22 W. R. 89 65 
 
 Holcro£t V. Barber, 1 C. & K. 4 ''[ ig 
 
 Holder v. Soulby, 29 L. J; C. P. 246 ; 8 C. B. (n.s.) 254 ... 91 
 
 Hole V. Sittingbourne, 30 L. J. Ex. 81 ; 6 H. & N. 488 ... 84 
 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 ..' 70 
 
 Holmes v. N. E. R. Co., 40 L. J. Ex. 121 ; L. R. 6 Ex 123 • 
 
 24 L. T. 69 . ... . , ■ ' 78 
 
 Howard ?;. Chapman, 4 C. & P. 508 110 
 
 Howard w. Crowther, 8 M. & W. 601 ' "" 65 
 
 Howard v. Sherrard, 36 L. J. C. P. 42; L. R. 2 C. P. 150 ... 105 
 
 Howell V. B^tt, 2 Ifev. & M. 381 ; 5 B. & Ad. 354 ... ,.. 121 
 
TAB.LE OP CASES. Xvii 
 
 PAGE 
 
 Hughes V. Humphreys, 6 B. & 0. 620 ; 9 D. & R. 715 166 
 
 Humber D. Derby, 15 L. T. 538 " jgy 
 
 Hunt «. Colsons, 3 Mo. & So. 790 \[] 7 
 
 Hunt V. G. N. R. Co. (No. 1), [1891] 1 Q. B. 601 ; 60 L. J. Q. B. 216 79 
 
 Hunter v. Berkeley, 7 C. & P. 413 j08 
 
 Huntley ?;. Bedford Hotel Co. (1892), 56 J, P. 55 ... 90 
 
 Hurrell t). Ellis, 2 C. B. 295 '.' "' 145 
 
 Hussey t). Pacey, 1 Lev. 188 gO 
 
 Hutchinson v. Y. N. & B. Rail. Co., 19 L. J. Ex. 296 ; 
 
 5 Ex. 352 68^73 
 
 Huttman w. Boulnois, 2 C. & P. 510 _ 20 27 35 
 
 Huzzey V. Field, 2 C. M. & R. 432 ", .'.."' 81 
 
 Hyeman i!. Nye, 6 Q. B. D. 635 gg 
 
 lUidge «. 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 
 
 Inglis t!. East Indian Co., 18 L. T. 93 26 
 
 Ipswich Tailors case, 11 Co. 54 n ... I55 
 
 Irwin V. Brandwood, 33 L. J. Ex. 257 ; 2 H. & C. 960 ... 146 
 
 Irwin V. Dearman, 11 East, 23 ... ... ... ... ... 65 
 
 Jackson «. Tollett, 2 Stark. 38 89 
 
 Jacquot V. Bourra, 3 Jur. 776 ; 7 DowL 348 37 
 
 Jenkins u. Gould, 3 Russ. 385 51 
 
 Jewin 1). Busk, 5 Taunt. 302 25 
 
 Joel 4). Morison, 6 C. & P. 501 86 
 
 Johnson tJ. Evans, 3 Esp. 32 I43 
 
 Johnson v. Lindsay, [1891] App. Caa. 371 70, 76, 97 
 
 Jones, In re, Ex parte Lloyd (No. 2), [1891] 2 Q. B. 231 ... 31 
 
 Jones ?;. Brown, 1 Esp. 217 64 
 
 Jones D. 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 t>. Norton, 4 M. & W. 155 II 
 
 M. & s. 6 
 
XTUl TABLE OP CASES. 
 
 K. 
 
 PAGE 
 
 Kaye w. Brett, 5 Exoh. 269 110,111 
 
 Kearley ?). Tonge, 60 L. J. M. C. 159 116 
 
 Kelly (.. Partington, 4 B. & Ad. 700 135, 139, 140 
 
 Kemp V. Caddington School Board, 9 T. L. B. 301 39 
 
 Kennedy?). Brown etUx, 32 L. J. C. P. 137 ; 7 L. T. (n.s.)626; 
 
 11 W. R. 284; 13 C. B. (n.s.) 677 ; 9 Jur. (k.s.) 119 ... 8 
 
 Kent «. Shuokard, 2 B. & Ad. 803 90 
 
 King !.. London Improved Cab Co., 23 Q. B. D. 281 6 
 
 King V. Spnrr, 51 L. J. Q. B. 105; 8 Q. B. D. 104 
 
 45L. T. 709 5 
 
 King w. Waring, 5 Esp. 13 134 
 
 Knight w. Gibbs, 1 A. & E. 43 145 
 
 Lamb v. Attenborough, 31 L. J. Q. B. 41 ; 8 Jur. (n.s.) 280; 
 
 1 B. & S. 831 ; 10 W. R. 211 4 
 
 Lamb r. Bunoe, 4 M. & S. 275 55 
 
 Lambert u Northern, 18 -W. R. 180 
 
 Lane v. Cotton, Ld. Raym. 646; 12 Mod. 482 ... 97, 114, 118, 120 
 
 Langanw. G. W. Rail. Co., 30L. T. 173 109 
 
 Latter v. Braddell, 50 L. J. Q. B. 448 ; 44 L. T. 369 ; 
 
 45 J. P. 520 ; 29 W. R. 366 38 
 
 Laugher v. Pointer, 5 B. & C. 554 82, 98 
 
 La wler ?;. Linden, 10 Ir. Rep. C. L. 188 2 
 
 Learoyd 1: Brook, [1891] 1 Q. B. 431 162, 166, 170 
 
 Lees J'. Whitcomb, 5 Bing. 34 160,170,171 
 
 Leeivard v. Basilee, 1 Salk. 406 63 
 
 Leloir r. Bristow, 4 Camp. 134 19,28,51 
 
 Leroux v. Brown, 22 L. J. C. P. 1 ; 12 C. B. 801 ; 16 Jur. 1021 ... 14 
 
 Lesage i;. Coussmaker, 1 Esp. 188 .. ... 23 
 
 Leslie v. Kirkpatriok, 3 Q. B. D. 229 ; 47 L. J. M. C. 22 ; 
 
 67L. T. 461 164 
 
 Lewis V. Peaohey, 31 L. J. Ex. 496; 1 H. 
 
 low. R. 797 
 
 Lightly V. Clouston, 1 Taunt. 112 
 
 Lilley v. Elwin, 11 Q. B. 742; 17 L. J. 
 
 12 Jur. 623 
 
 Limland w. Stephens, 3 Esp. 269 
 
 Limpus V. L; G. Om. Co., 32 L. J. Ex. 34; 1 H. & C. 526 ... 86 
 
 & 
 
 C. 
 
 518 
 
 . 166 
 169 
 
 Q- 
 
 B. 
 
 132 
 
 
 17 
 
 ,26. 
 
 .27, 
 
 37,48 
 45 
 
TABLE OF CASES. XIX 
 
 PAGE 
 
 lAon, The, 3SIj. J.. Ad. 51 96 
 
 Lloyd V. Blackburn, 11 L. J. Ex. 210 ; 9 M. & W. 363 ; 
 
 X Dowl. (N.s.) 647 168 
 
 L. G. Om. Co. V. Booth, 63 L. J. Q. B. 244 94 
 
 liong ?•. Home, 1 C. & P. 610 106 
 
 iouis r. Smedley, 73 L. T. 226 21 
 
 Lowe V. G. N. Rail. Co., 62 L. J. Q. B. 524 94 
 
 Lowe t). Walter, 8 T. L. B. 358 36 
 
 Lowry V. Akenliead, Bull. N. P. 8 134 
 
 Lucas r. Mason, 44 L. J. Ex. 145; 33 L. T. 135; L. R. 
 
 10 Ex. 251 ; 23 W. R. 924 2 
 
 Lucey D. Ingram, 3 M. & W. 302 96 
 
 Ludlow u. Charlton, 6 M. & W. 815 2 
 
 Lumley v. Gye, 22 L. J. Q. B. 463; 2 E. & B. 216; 
 
 17Jur. 827 2,62 
 
 Lynch w. Knight, 9 H. L. C. 577 145 
 
 Lynch ?;. Nurdin, 1 Q. B. 29 71 
 
 Lyons v. Martin, 8 A. & E. 512 ; S^N. & P. 509 ... 88, 92 
 
 M. 
 
 McCaUum v. N. B. Rail. Co., 20^0t. Sess. Cas. 388 (Sc.) ... 77 
 
 Mackay ?;. Ford, 29 L. J. Ex. 404 35 
 
 McKenzie i;. Douglas, 6 Q. B. D. 145 ; 50 L. J. Q. B. 289 ... 89 
 M'Laughlin 3J. Pryor, 4 M. & G. 48; Car. & M. 354; 
 
 4Sc. N. R. 655 - ■- 10^ 
 
 McManus V. Crickett, 1 East, 106 95,96,119 
 
 Maddick V. Marshall, 17 C. B. (n.s.) 829 ; 16 C. B. (n.s.) 387... 106 
 
 Makepeace u. Jackson, 4 Taunt. 770 
 
 Mallan v. May, 11 M. & W. 653: 12 L. J. Ex. 376; 
 
 7Jur. 536 
 
 Manby v. Witt, 25 L. J. C. P. 294; 18 C. B. (n.s.) 544; 
 
 2Jur. (N.s.)1004 142 
 
 Mann «>. Ward, 8 T. L. R. 699 85 
 
 Mansfield ?). Scott, 1 CI. & F. 329 23 
 
 Manzoni v. Douglas, 6 Q. B. D. 145 ; 50 L. J. Q. B. 289 ... 89 
 
 Marshall v. York, N. & B. Rail. Co., 21 L. J. C. P. 34 ... 9© 
 Martin, v. Temperley, 4 Q. B. 298 ; 12 L. J. Q. B. 129 ; 
 
 3 G. & D. 447 ; 7 Jur. 150 81,97 
 
 Martin u. Ward, C. S. Cas. 814 93 
 
 Maunders. Conyers, 2 Stark. 281,., , 1"8 
 
 Maunder «. Venn, M. & M. 323 6* 
 
 Maw-K; Jones, 25 Q. B.D. 107 — ' lo" 
 
 50 
 30 
 
 42 
 
 85 
 
XX 
 
 TABLE OF CASES. 
 
 PAGfB 
 
 Mayhew D. 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. (N.s.)845 69 
 
 Mercer u. Whall, 5 Q. B. D. 447 ; 14 L. J. Q. B. 267 ; 
 
 9Jur. 576 43 
 
 Merryweather v. Moore, [1892] 2 Ch. 518 ; 61 L. J. Ch. 505 ... 21 
 
 Merryweather w. 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. (n.s.) 871 91 
 
 Michael V. Alestree, 2 Levlnz, 172 80 
 
 Mmer V. Aris, 3 Esp. 231 ; Selw. N". P. 103 122 
 
 Miller v. Hamilton, 5 C. & P. 433 103, 104 
 
 Millership y. Brookes, 29 L. J. Ex. 369 160 
 
 Milligan v. Wedge, 12 A. & E. 737 ; 1 Q. B. 714 83 
 
 Mires V. Solebay, 2 Mod. 242 119 
 
 Mitchell;. Reynolds, 1 Sm. L.C. 356; 10 Mod. 130; 1 P.Wm.181 30 
 
 Mitchell !'. Crassweller, 13 C. B. 237 86,92 
 
 Molton V. Camroiix, 18 L. J. Ex. 356 ; 4 Ex. 17 11 
 
 Monk I). Clayton, quoted in Nioksout;. Brohan, g.ri 103 
 
 Monkman w. Shepherdson, 11 A. & E. 411 23 
 
 Moore i;. Smith, 39 J. P. 772 165 
 
 13 Q. B. D. 832 ; 
 
 P. 503; 32W.B. 759 
 
 L. R. 5 Q. B. 480 ; 
 
 Morgan v. London General Omnibus Co, 
 
 53 L. J. Q. B. 352 ; 51 L. T. 213 ; 48 J. 
 Morison v. Thompson, 43 L. J. Q. B. 215 
 
 30 L. T. 869 ; 22 W. R. 859 
 
 Morley v. Gaisford, 2 H. Bl. 441 
 
 Motion V. Michand, 8 T. L. R. 253, 447 .. 
 
 Mulkenir. Metropolitan Bail. Co., 8 T. L. R. 232 
 
 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. (w.s.) 605 ; 19 C. B. (n.s.) 361 ...71, 77 
 
 Murray v. Currie, 40 L. J. C. P. 26 ; L. K. 6 C. P. 
 
 23 L. T. 557 ; 19 W. R. 104 
 
 Mytton V. Midland Rail. Co., 28 L. J. Ex. 385 
 
 79 
 
 49 
 
 88 
 
 4 
 
 94 
 
 24; 
 
 82 
 90 
 
 ■N. 
 
 Nash t). Armstrong,, 10 C. B. (n,s,) 259 
 
 .. 169 
 
TABLE OP CASES. xxi 
 
 PAGE 
 Neile 4). Turtoii, 4 Bing. 149 .„ m 
 
 Neuwith «. Over Darwen, 63L. J. Q. B. 290 ... ... ..'. 94 
 
 Newby V. Wiltshire (1785), 2 Esp. 739, quoted in 3 B. & P. 247 
 
 (1802) ; 4 Doug. 284 28,55 
 
 Newman 1;. Jones, 17 Q. B. D. 132 116 
 
 Niohol ?;. Martyn, 2 Esp. 732 „, \[[ '" 52 
 
 Nichols V. Hall, 42 L. J. M. C. 105 ; 23L. T. 473-21 W R 579- 
 
 8 0. P. 322 ' iiQ 
 
 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 4). Mounsey, 15 East 384 97 
 
 Nickson D. Brohan, 10 Mod. 109 51,102 103 
 
 NicoU V. Greaves, 33 L. J. 0. P. 259 ; 10 L. T. (n.s.) 531 ; ' 
 
 17 C. B. (K.s.) 27 ; 10 Jur. (n.s.) 919 ; 12 W. R. 961 ... 2 
 
 Niven t;. Greaves, 55 J. P. 548 II7 
 
 Nordenfelt i'. Maxim-Nordenfelt, [1894] A. 0. 535 30 
 
 North's case. Lord, Dyer, 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 1;. Ablett, 2 0. M. & R. 54 ,, ... 1 
 
 0. 
 
 O'Byrne?;. Bum, 16Ses. Ser. (Sc. Rep.) 1025 77 
 
 Oldfield V. Furness, Withey & Co., 9 T. L. R. 515 4 
 
 Olive I). Barnes, 2 Stark. 181 106 
 
 O'Niel D. 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. (McDowaU's case). In re, 55 L. J. Ch. 620 34 
 
 Ormond r. Holland, E. B. & E. 102 69 
 
 Ormond, Lady v. Hutchinson, 13 Ves. 53, 92 51 
 
 Osbom V. Gillett, 42 L. J. Ex. 53 ; L. R. 8 Ex. 88 ; 28 L.T. 197 ; 
 
 21 W. R. 409 63 
 
 Osbom V. 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 t). Bowen, 4 C. & P. 93 25 
 
 P. 
 
 Palmer t!. Wick Steam Co., [1894] A. C. 318 60 
 
 Parker v. Ibbotson, 27 L. J. C. P. 236; 4 C. B. (n.s.) 346 
 
 4 Jur. (N.s.)536 18,23 
 
XXi: TABLE OF CASES. 
 
 PAGE 
 
 Parsons ?;. London Caunty .Council, 9 T. L. R. 619 39" 
 
 Patten, v. Rea, 26 ,L. J. C. P. 235; 2 C. B. (n.s.) 606; 
 
 3 Jur. (N.s.)892 86. 
 
 Patten u Wood, 51 J. P. 549 172 
 
 Pattersons. Wallace,. 1 Macq. 748; 1 Paters. 389 68 
 
 Pattison v. Jones, 8 B. & C. 578 ; 3 M. & Ry. 101 ... 136, 139 
 Peachey v. Rowland, 22 L. J. C. P. 81 ; 13 C. B. 182 ; 17 Jur. 764 3 
 Peacock v. Peacock,. 2 Camp. 45 . . . ... ... ... ... 24 
 
 Pearce i;. Rogers, 3 Esp. 214 108,112 
 
 Pearse.?;. Foster, 17 Q. B. D. 536 ; 55 L. J. Q. B. 306... 39, 41 
 
 Pennv. Ward,.2C. M. &R. 338 HO 
 
 Perkins D. Smith, Sayer, 40 119' 
 
 Perring 7'. Harris, 2 Mo. & Rob. 5 12a 
 
 PeircZ, TAe, 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 w. Turner, 4 CI. & F. 234 173 
 
 Pickard v. Smith, 4L. T. (N.s.) 470 ; 10 C. B. (n.s.) 470 ... 84 
 
 Pilkington )•. Scott, ,15 M. & W. 637 ; 15 L. J. Ex. 329 ... 19 
 
 Plancli^.t). CaLburn,.8.Bing..l4 27 
 
 Playford r. United Kingdom Elect. Co., 4 Q. B. 706 ; 38 L. J. 
 
 Q. B. 249 98 
 
 Poplett ('. Stockdale, 2 C. & P. 198 29 
 
 Potter V. 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 7>. Plunkett, 33 L. T. HI 70 
 
 Poultohu. L.SS. W. R. Co.,36L. J. Q.B.294; 2 Q. B. 534; 
 
 17L. T. 11; 8B. &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. Moueitt, 11 C. B. (IT.s.) 508 36, 48 
 
 Priestley v. Fowler, 3 M. & W. 1 ; 1 Jur. 987 66, 72 
 
 Pritchard w. Hitchcock, 6 M. & G. 165 51 
 
 Puttock t>. Warr, 31 L. T. 86 110 
 
 Q- 
 
 Quarman v. Burnett, 6 M. & W. 499 ; 9 L. J. Ex. 308 ; 4 
 
 Jur. 969 „ _ 3, 9& 
 
TABLE OP CASES. xxi'i 
 
 E. 
 
 PAGE 
 
 Eaphael !•. Goodman, 8 A. & E. 565 87 
 
 Rapson (•. Cubitt, 9 M. & W. 760 83 
 
 Redhead v. Midland Rail. Co., 38 L. J. Q. B. 169 89 
 
 Read ?;. Dunsmore, 9 C. &.P. 594 38 
 
 Reddie r. Scott, 1 Peake, 316 65 
 
 Redgate v. Haynes, 1 Q. B. D. 89; 45 L. J. M. C. 65; 
 
 33 L. T. 779 ; 41J. P. 86 115 
 
 Reed f. Moore, 5 C. & P. 200 10 
 
 Reedie v. London and North Western Rail. Co., 4 Ex. 244; 
 
 20 L. J. Ex. 65 2, 83 
 
 Reid V. Explosives Co., 19 Q. B. D. 264 34 
 
 Reynard ('. Chase, 1 Burr. Rep. 2 153 
 
 Richards r. London, Brighton, and South Coast Rail. Co., 
 
 7C. B. 839 89 
 
 Richards v. West Middlesex Water Co. , 15 Q. B. D. 660, . . 88, 92, 95 
 
 Richardson D. Cartwright, 1 C. & K. 328 106 
 
 Ridgeway f. Hungerford, ,3 A. & E. 171 26,41,42 
 
 Riley ?;. Baxendale,. 30 L. J. Ex. 87 68 
 
 Rist V. Faux, 32 L. J. Q. B. 386 ; 4 B. & S. 409 ; 8 L. T. 737 ; 
 
 10 Jur. {N.s.)202; 11 W. R. 918 64 
 
 Rimellw. Sampays,.!. C. &P. 254 104 
 
 R. I. Almon, 5Burr. 2686 113 
 
 R. V. Amersham, 4. A. & E..508 ; 6 N. & M. 12 160 
 
 R. -v. Arkwright, 1 Web. P. C. 71 49 
 
 R. V. Aj-nesby, 3 B. & Aid. 584 151, 159 
 
 R. ?;. Austrey, Burr. S. C. 441 178 
 
 R. I'. Baildon, 3 B. & Ad. 427 160 
 
 R. r. Bardwell, 2 B. & C. 161 7 
 
 R. 1. Bass, 1 Leach, 251 125 
 
 R. 2). Batty, 2 Moo. C. C. 257 9 
 
 R. 1'. Baxter, 5 Cox C. 0. 302 129 
 
 R. V. Bazeley, 2 East P. C. ,571 ; 2 Leach, 835 126, 127 
 
 R. I?. Beachey, R. & R. 319 129 
 
 R. 1'. Bleasdale, 2 C. & K. 756 113 
 
 R. V. Bowers, 35 L. J. M. C. 206 ; 14 L. T. 671 ; 1 C. C. R. 41 ; 
 
 4 
 
 38 
 
 126 
 
 102 160 
 
 129, ISO 
 
 160 
 
 leo 
 
 12 Jur. (s.s.)550 ... 
 R. V. Brampton, Cald. 11 
 R. V. Bull, 2 Leach, 841 
 R. V. Burton, 32 L., J. M.C, 
 R. V. C^rr, R. & R. 198 
 R. V. Cbalbery, 1 Bott. 706 
 R. V. Qbarles, 2 Bott. 565, 
 
XXIV TABLE OF CASES. 
 
 PAGE 
 
 R. V. Cheshunt, 1 B. & Aid. 473 71 
 
 R. V. Cirencester, 1 Stra. 579 160 
 
 R. V. Cooke, 40 L. J. M. C. 68 ; 24 L. X. 108 ; 1 C. C. R. 295 ; 
 
 12 Cox, 10 5 
 
 R. iJ. Cromford, 8 East, 24 160 
 
 R. y. Daniel, 6 Mod. 182 169 
 
 R. <;. Dixon, 3 M. & S. 11 ; 4 Camp. 12 115 
 
 R. ?;. Dodderhill, 3 M. & S. 243. IT 
 
 R. u. Edwards, 7 T. R. 745 170 
 
 R. V. Bverard, 1 Bott. 638 160 
 
 R. u. Friend, Russ. & Ry. 22 52 
 
 R. 1!. Goodbody, 8 C. & P., 665 5 
 
 R. V. Gorbutt, 26 L. J. M. C. 49 ; 7 Cox;, 221 ; 3 Jur. (ir.s.) 371 ; 
 
 D. &B. 169 128 
 
 R. V. Gould, 1 Salk. 380 ... 176 
 
 R. V. Gray, 1 Stra. 485 123 
 
 R. u. Great Northern Rail. Co., 9 Q. B. 315 116 
 
 R. w. Gutch, Moo. & Mai. 433 114 
 
 R. u. Han, 3 Stark. 67 130 
 
 R. i). Hammon, 4 Taunt. 304 125 
 
 R. w. Harburton, 1 T. R. 139 165 
 
 R. w. Harding, Russ. & Ry. 125 126 
 
 R. V. Harris, 69 L. T. 25 ; 57 J. P. 729 130 
 
 R. ■!). Hawtin,.7 C. & P. 281 129 
 
 R. 1). Higgins, 2 East, 5 131 
 
 R. V. Higgins, 2 Stra. 882 ; 2 Ld. Raym. 1574 113 
 
 R. ■«. Hinckley, 32 L. J. M. C. 158 165 
 
 R. ■«. Hindringham, 6 T. R. 557 162 
 
 R. V. Holbrook, 4 Q. B. 42 : 48 L. J. Q. B. 11 ; 39 L. T. 536 ; 
 
 27W. R. 313 114 
 
 R. i;. Huntley, 3 C. & K. 142 50 
 
 R. V. Ightman, 4 A. & E. 937 ; 6 N. & M. 320 152, 159 
 
 R. «. Johnson, 3 M. & S. 548 128 
 
 R. «. Laindon, 8 T. R. 379 152,159 
 
 R. t/. Leach, 3 Stark. 70 11,130 
 
 R. «. Leggett, 8 C. & P. 191 50 
 
 R. «. Longnor, 4 B. & Ad. 647 159 
 
 R. V. Lord, 17 L. J. M. C. 181 ; 12 Q. B. 757 ; 12 Jur. 1001 ...9, 163 
 
 R. ... Lyth, 5 T. R. 327 17 
 
 R. V. Maodouald, 31 L. J. M. C. 67 ; 5 L. T. 330 ; 7 Jur. 
 
 (N.s.) 1127; 10 W. R. 21 • 6 
 
 R. i;. Medley, 6 C. & P. 292 116 
 
 R. V. Hellish, R. & R. C. C. 80 ''' 129 
 
 R. u. Miller, 4 Cox, 166 129 
 
TABLE OP CASES. 
 
 XXV 
 
 „ PAGE 
 
 R. I). Minster, 3 M. & S. 276 g 
 
 R. V. Moah, 27 L.J. M.C. 204 ; 1 D.&B. 550; 4 Jur. (n.s.) 464 146 
 
 R. i). Morfit, R. & R. C. C. 307 126 
 
 R. i;. Murphy, 4 Cox, 101 ." .' i29 
 
 R. V. Murray, 1 Leach, 344 125 
 
 R. V. Murray, 5 C. & P. 146 n. ; 1 Moo. C. C. 276 ... 126, 130 
 R. V. Negus, 42 L. J. M. C. 62 ; 2 C. C. R. 34 ; 28 L. T. 646 : 
 
 21 W. R. 687 1 4 
 
 R. «. Northoram, 2 Stra. 1132 161 
 
 R. «. Northwingfield, 1 B. & Ad. 912 29 
 
 R. 1). Parr, 2 Moo. & R. 346 113 
 
 R. 17. Peck, 1 Salk. 65 ... ... 167 
 
 R. u. Pendleton, 15 East, 449 17 
 
 R. t.. Polesworth, 2 B. & Aid. 483 37 
 
 R. u. Ponsonby, L. R. 3 Q. B. 14 8 
 
 R. ■;;; Rainham, 1 East, 531 152, 159, 161 
 
 R. V. Rasohen, 38 L. T. 38 ; 42 J. P. 264 44 
 
 R. i;. Reynolds, 6 T. R. 497 169 
 
 R. «. Ridley, 2 Camp. 650 52 
 
 R. i;. Ripon, 9 East, 295 159 
 
 R. t;. Robinson, 2 Bast P. C. 565 124 
 
 R. I). Rolvenden, 1 M. & Ry. 689 18 
 
 R. ■«. St. Luke's, 1 Bott. 710 165 
 
 R. D. St. Martin's, 8 B. & C. 674 18 
 
 R. V. St. Martin's, Exeter, 2 A. & E. 655 158 
 
 R. ■!;. St. Nicholas, Burr. S. C. 91 170 
 
 R. «. St. Petrox, 4 T. R. 196 157 
 
 R. D. Saltern, 1 Bott. 613 157 
 
 R. V. Sharman, 22 L. J. M. C. 51 ; 6 Cox, 212 ; 18-Jur. 157 ... 146 
 
 R. I/. Sloaneet Ux, 33Sess. Pap. (C. C. C.)482 53 
 
 R. V. C. J. Smith, 34 L. J. M. C. 155 ; 10 Cox C. C. 82 ... 53 
 
 R. ■!>. Smith, R. & R. 267 129 
 
 R. ?.. Snowley, 4 C. & P. 390 129 
 
 R. u. Spears, 2 East P. C. 56 ; 2 Leach, 826 125 
 
 R. ?;. Spencer, R. & R. 299 129 
 
 R. i;. Spreyton, 3 B. & Ad. 818 178 
 
 R. V. SpurreU, 35 L. J. M. C. 72 ; 13 L. T. 364 ; 1 Q. B. 72 ; 
 
 14 W. 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. SuUens, 1 Moo. C. C. 129 126 
 
 R. V. Tardebigg, Sayer, 100 ... 169 
 
 R. 0. Thorpe, 27 L. J. M. C. 264; 8 Cox, 267; 18 Jur. 
 
 (N.s.)466; D. &B. 62 128 
 
XXVI 
 
 TABLE OP CASES. 
 
 PAGE 
 
 R. V. Tyrie, 38 L. J. M. C. 58 ; 19 L. T. 657 ; 1 0. C. R. 177 ; 
 
 17 W. R. 334; 11 Cox, 24 130 
 
 R. V. Walker, L. R. 2 C. C. 37 ; 42 L. J. M. 0. 62 1 
 
 R. 1). Wallings, 1 C. & P. 457 130 
 
 R. 1). Walter, 3 Esp. 21 60,114 
 
 R. V. Warren, R. & R. C. C. R. 482 > 56 
 
 R. I'. Welford, Cald. 57 26,38. 
 
 R. V. Wigston, 3 B. & C. 484 ; 5 D. & R. 339 165 
 
 R. i\ Williams, 1 C. & K. 589 113 
 
 R. D. Worfield, 5 T., R. 506 15,27 
 
 R. t). Wortley, 21 L. J. M. C. 44 ; 15Jur.ll37; 2Den. C. 333... 22 
 
 R. w. Wotton, 1 Bott. 712, 165 
 
 R. V. Wright, 27 L. J. M. C. 65 ; 7 Cox, 413 ; D. & B. 431 ; 
 
 4 Jiir. (N.s.)313 124 
 
 Robb V. Green, [1895] 2 Q. B. 315 ; 64 L. J. Q. B. 593 ; 59 
 
 J. P. 695 21 
 
 Roberts v. Smith, 26 L. J. Ex. 319 ; 32 L. T. 320 69 
 
 Robertson V. Jenner, 15 L. T. 564 ... 18 
 
 Robinson v. Hindman, 3 Esp. 235 16, 27, 37, 49 
 
 Roe w. Birkenhead Rail. Co. 21 L. J. Ex. 9 ; 7 Ex. 36 96 
 
 Rogers ?). Clifton, 3 B. & C. 587 136, 139, 141 
 
 Ross V. Parkyns, 44 L. J. Ch. 610 ; 30 L. T. 331 ; 20 Eq. 331 ; 
 
 24W. R. 5 6 
 
 Rourke v. White Moss, 46 L. J. C. P. 283 ; 2 C. P. 
 
 36 L. T. 49 ; 25 W. R. 263 
 
 Royce v. Charlton, 8 Q. B. D. 1 ; 45 L. T. 712 ; 46 J. 
 
 30W. R. 274 
 
 Ruddiman v. Smith, 53 J. P. 528 ; 60 L. T. 708 
 
 Rusby i\ Scarlett, 5 Esp. 76 
 
 Russell's Patent, Re, 30 L. T. 178 ; 2 De G. & J. 130 
 Ryan v. Jenkinson, 25 L. J. Q. B. 11 
 
 205; 
 ... 97 
 
 197; 
 162, 172 
 ... 92 
 101, 103 
 ... 49 
 ... 35. 
 
 St. Mary V. Radcliffe, 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 v. Crompton, Cro. Eliz, 
 
 Sammell ?). Wright, 5 Esp. 263 
 
 Sanderson v. Bell, 2 Cr. & M. 304 
 
 Sandby,. Ex parte, 1 Atk. 149 
 
 777 
 
 1 Jur. 
 
 160 
 159. 
 160 
 
 3 
 
 51 
 
 98. 
 
 110 
 
 168 
 
TABLE OP CASES. xxvii 
 
 PAGE 
 
 Sands t). Child, 3 Levinz, 352 llg 
 
 Savage r. Waltliain, 11 Mod. 135 51 
 
 Saxton u. Hawkesworth, 26 L. T. 851 69 
 
 Scarman i'. Oastell, 1 Esp. 270 54 
 
 Schumann, Ex parte. Re Foster & Co., 19 L. R. Ir. 241 ... 34 
 
 Seaman V. Bigg, Cro. Car. 480 145 
 
 Searle v. 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 ?;. Ridley, 28 L. T. 411 40 
 
 Sellen v. 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 W. R. 261 70,71 
 
 Seymour v. Maddox, 20 L. J. Q. B. 326 ; 16 Q. B. 326 ; 
 
 15 Jur. 72 68 
 
 Sharrod u. L..&; N. W. Bail, Co., 4 Ex. 580 2, 96 
 
 Shaw I'. Chairritie, 3 ,C. & k. 21 39,50 
 
 Shepherd v. Conquest, 25 L. J. C. P. 127 ; 17 C. B. 427 ... 50 
 
 Simmons w. Willmott, 3 Esp. 91 54 
 
 Sims i'. Kinder, 1 C, & P. 279 ... , 134 
 
 Skipp V. East. Co. Rail. Co., 23 L. J. Ex. 23 ; 9 Ex. 223 ... 69 
 
 Sleath I'. Wilson, 9 C. & P. 612 86 
 
 Smart v. West Ham, 25 L. J. Ex. 210 ; 11 Ex. 867 13 
 
 Smith i;. Armoures, Peake's Cases, 148 153 
 
 Smith r. Baker, [1891] App. Cas. 325 70 
 
 Smith V. Cartwright, 6 Ex. 927 ; 20 L. J. Ex. 401 12 
 
 Smith f. Hull Glass Co., 11 C. B. 897; 21 L. J. C. P. 106; 
 
 16 Jur. 595 106 
 
 Smith I). Francis, 55 J. P. 407 171 
 
 Smith t). 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. 859; 10 
 
 Q. B. 422 ; 23 W. R. 715 8 
 
 Smout V. Ilbury, 10 M. & W. 1 ; 12 L. J. Ex. 357 121 
 
 Snowdon «;. Dairs, 1 Taunt. 359 122 
 
 Somerset v. Hart, 12 Q. B. D. 360; 53 L. J. M. C. 77; 
 
 48.J.P. 32 115 
 
 Somerville v. Hawkins, 20 L. J. C. P. 133 ; 10 C. B. 583 ; 
 
 15 Jur. 450 135 
 
 Southern V. How, Cro. Jac. 471 87 
 
 Spain a.AmQtt, 2 S.tark. 256 17, 26, .36, 47 
 
 Speck i>., Phillips, 5 M. &W. 279 38 
 
 Spencer 1). Scheerman, 23 L. T. 873 22 
 
XXVUl 
 
 TABLE OP CASES. 
 
 Spotswoode V. Barrow, 5 Ex. 110 ; 19 L. J. Ex. 226 
 " Star " Newspaper v. O'Connor, 9 T. L. R. 526 
 
 Staveley v. Uzzielli, 1 F. & F. 284 
 
 Stephens v. Badcock, 3 B. & Ad. 354 
 
 Stephens v. ElwaU, 4 M. & S. 259 
 
 Stevens v. Woodward, 6 Q. B. D. 318 ; 50 L. J. Q. B, 
 
 L. T. 153 ; 45 J. P. 603 ; 29 W. E. 506 ... 
 
 Stiflfw. Cassell, 8 Jur. (N.s.)348 
 
 Stock v. Harris, 5 Burr. 2709 
 
 Stocker v. Brocklebank, 20 L. J. Ch. 401 ; 15 Jur. 
 
 Mac. &G. 250 
 
 Stone V. Cartwright, 6 T. R. 441 
 
 Storey v. Ashtou, 4 Q. B. 476 ; 38 L. J. Q. B. 223 ; 
 
 S. 337; 17 W. R. 727 
 
 Strode v. Dyson, 1 Smith, 400 
 
 Stubbing v. Hertz, 1 Peaks, 66 ... 
 
 Sturm V. Hinshebrood, 55 J. P. 341 
 
 Summers v. Solomon, 7 E. & B. 879 ; 26 L. J. Q, 
 
 3 Jur. (N.s.)963 
 
 Swainson v. N. E. R. Co., 3 Ex. D. 341; 47 L. J. Q. 
 
 38 L. T. 201 ; 26 W. R. 413 
 
 PAGE 
 
 39,43 
 
 21 
 
 112 
 
 121 
 
 119 
 
 591; 3 
 
 231; 44 
 
 92 
 
 18 
 
 120 
 
 6 
 
 82 
 10 B. & 
 
 87, 92 
 
 106 
 
 108 
 
 93 
 
 B. 301; 
 
 103, 111 
 B. 372; 
 76 
 
 T. 
 
 Tarrant )'. Webb, 25 L. J. 0. 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 w. 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 v. 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. Rhymney Rail. Co., L. R. 6 Q. B. 266 ; 40 L. J. 
 
 Q. B. 89 ; 24 L. T. 145; 19 W. R. 477 90 
 
 Thomas t). Williams, 1 A. & E. 685 33 
 
 Thompson w. Davenport, 9 B. & C. 90 ... ., 109 
 
 Thorold D. Smith, 11 Mod. 87 Ill 
 
 Thrussell t). Handyside, 20 Q. B. D. 359 71 
 
TABLE OF CASES. xxix 
 
 PAGE 
 
 Tickell i;. Read, Lofift. 215 63 
 
 Tite's case, 30 L. J. M. 0. 142 ; 4 L. T. 259 ; L. & C. 29- 
 
 8 Cox, 458; 9 W. R. 554 ; 7 Jur. (n.s.) 556 9 
 
 Tobin D. Crawford, 9 M. & W. 718 103 
 
 Todd V. Kerrick, 22 L. J. Ex. 1 ; 8 Ex. 151 ; 17 Jur. 119 2, 16, 35 
 Toogood V. Spyring, 1 C. M. & R. 193 ; 3 L. J. Ex. 347 ... 142 
 
 TopUs V. Grane, 5 Bing. N. C. 636 59 
 
 Totterdell v. Pareham, 35 L. J. C. P. 278 106 
 
 Touch V. Strawbridge, 2 C. B. 803 ; 15 L. J. C. P. 170 . 15 
 
 Tufft). Warman, 27L. J. C. P. 322 „, 95 
 
 Turbeville v. Stamp, 1 Salk. 13 ; Ld. Raym. 264 ; 1 Comyn'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 v. 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. 
 
 Velcisquez, The, 36 I'. J. Ad. 19 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 1). Watkins, 7 C. & P. 308 65 
 
 Vicars v. Wilcock, 8 Bast, 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 w. Wilson, 4 B. & Ad. 339 110 
 
 Walker v. G. W. R. Co., 36 L. J. Ex. 123 ; L. R. 2 Exo. 228 109 
 
 Walker v. British Guar. Ass. 18 Q. B. 277 ; 21 L. J. Q. B. 257 42 
 Walsh V. WaUey, 43 L. J. Q. B. 102 ; L. R. 9 Q. B. 267 ; 38 
 
 J. P. 470 ; 22 W. R. 571 35 
 
 Walter t;. Everard, [1891] 2 Q. B. 369 163 
 
 Wanstall V. Pooley, 6 CI. & M. 910 n 87 
 
 Warburton 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 V. Byrne, 5 M. & W. 548 ; 3 Jur. 1175 30 
 
XXX TABLE OP CASES. 
 
 PAGE 
 
 Ward V. Evans, 2 Salk. 442 ; 6 Mod. 36 ; 2 Ld. Raym. 928. ..110, HI 
 Ward V. L. G. Om. Co., 42 L. J. C. P. 265 ; 28 L. T. 850 ... 86 
 
 Waters V. Brogden, 1 Y. & J. 457 Ill 
 
 Watkins ('. Vince, 2 Stark. 368 107 
 
 Watling «. Walters, 1 C. & P. 132 54 
 
 Watson w. Turner, Bull. N. P. 147 55 
 
 Wayland's(.SirRob.)case, 3Salk. 234 103 
 
 Weatherstoue w. Hawkins, 1 T. R. 110 134 
 
 Webb V. England, 30 L. J. Cli. 222 ; 3 L. T. 574 ; 7 Jur. 
 
 (N.s.) 153; 29Beav. 44 173 
 
 Welch?'. L. &N. W. R. Co.,34W. R. 166 90,93 
 
 Wennall w. Adney, 3 B. & P. 247 56 
 
 Westlake v. Adams, 27 L. J. C. P. 27; 5 C. P. (n.s.) 248 ; 
 
 4,Tur. (N.s.) 1021 161 
 
 Westwick v. Theodore, 10 Q. B. 224 ; 44 L. J. Q. B. 120 ; 
 
 32 L. T. 696 ; 23 W. R. 620 166 
 
 Whatman v. Pearson, L. R. 3 C. P. 422 86 
 
 Whincup 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. (n.s.) 227 ; 7 Jur. 
 
 (N.s.) 948 7 
 
 Whiteley v. Pepper, 46 L. J. Q. B. 436 ; 2 Q. B. D. 276 ; 36 
 
 L. T. 588 ; 25 W. R. 607 81 
 
 Whitfield ?;. Le Despenser, Cow-p. 754 97 
 
 Whitley V. Loftus, 8 Mod. 190 157 
 
 Whitwood )'. Hardman, [1891] 2 Ch. 416 ; 60 L. J. Ch. 428 ... 21 
 Wiggett V. Pox, 11 Ex. 832 ; 25 L. J.. Ex. 188; 2 Jur. (n.s.) 955 74 
 Wigmore )'. Jay, 19 L. J. Ex. 300 ; 5 Ex. 354; 14 Jur. 837 ... 73 
 Wilkin V. Reed, 15 C. B. 192 ; 23 L. J. C. P. 193 ; 18 Jur. 1081 146 
 
 Wilkins i). Wells, 2 C. & P. 231 23 
 
 Willett ?'. Green, 3 C. & K. 59 43 
 
 Williams v. Byrne, 7 A. & E. 177 ; 2 N. & P. 139 ; 1 Jur. 578 ...16, 35 
 
 Williams i-. Clough, 27 L. J. Ex. 825 ; 3 H. & N. 258 68 
 
 Williams v. Stott, 1 Or. & M. 685 ; 3 Tyr. 688 129, 130 
 
 Williamson v. Taylor, 5 Q. B. 175 ; 13 L. J. Q. B. 81 ... 19 
 
 Wilmott P. Smith, Mood. & Mai. 238 107 
 
 Wilson V. Barker, 4 B. & Ad. 616 100 
 
 Wilson V. Merry, L. R. 1 Sc. App. 326 ; 2 Paters. 1597 67, 77 
 
 Wilson V. Rankin, 34 L. J. Q. B. 62 88, 95 
 
 Wilson V. Tummon, 6 Sc. N. R. 904 ; 6 M. & G. 226 ; 12 L. J. 
 
 0. P. 307 ; 1 n. & L.' 513 100,112 
 
 Wilson V. W. Hartlepool, 34 L. J. Ch. 241 ; 11 L. T. (n.s.) 327 110 
 Wilson V. Zilluetta, 14 Q. B. 405 ; 19 L. J. Q. B. 49 ; 14 
 
 Jut. 366 22 
 
TABLE OP CASES. 
 
 XXXI 
 
 PAGE 
 
 Wing D. Mill, 1 B. & Aid. 104 , 55 
 
 Wingfield D. Packington, 2 C. & P. 599 106 
 
 Wiimell t). Adney, 3 B. & P. 247 28 
 
 Winstone v. Linn, 1 B. & C. 460 50, 161, 166, 170 
 
 Wood I). Fenwick, 10 M. & W. 195 9 
 
 Woodin V. Burford, 2 Cr. & M. 391 ; 4 Tyr. 264 105 
 
 Woodley v. Metropolitan Dist. Rail. Co., 2 Ex. D. 384; 46 
 
 L. J. Ex. 521 49,70 
 
 Woodhouse r. Shapley, 2 Atk. 535 169 
 
 Wray ;•. West, 15 L. T. (n.s.) 180; 30 J. P. 726 165 
 
 Wright r. 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; 33L. T. 830 78 
 
 Wright V. Mid. Rail. Co., 42 L.J. Ex. 89; 29 L. T. 436; 
 
 8 Ex. 137 ; 21 W. R. 460 90 
 
 Yarmouth v. Prance, 19 Q. B. D. 647 
 
 Yelland D. Vincent, 47 J. P. 230 
 
 Yotmg V. Leamington, 52 L. J. Q. B. 713 ; 49 L. T. 1... 
 
 70 
 22 
 12 
 
CORRIGENDA. 
 
 Page 5 (a), for 60 read 64. 
 
 Page 12 (a), for " Berridge" read Beveridge. 
 
 Page 15 {t), for " Ching " read Cherry. 
 
 Page 17 [i], for " 45 L. J." read 46 L. T. 
 
 Page 38 (c), for " 8 C. & P. 80 " read 18 C. B. 718. 
 
 Page 38 {h),for " Spark" read Speck. 
 
 Page 62 (y), for " L. T." read T. L. R. 
 
 Page 63 (e), for " 11 B. & E." read 11 A. & E. 
 /or" 1884 "reati 1834. 
 
 Page m(m)for " 38 L. J. Q. B." read 33 L. J. Q. B. 
 
 Page 84 (/), for " 53 " read 23. 
 
 Page 84 (»), for " 64 read 14. 
 
 for "6C. 'B." readlO. B. 
 
 Page 85 (h),for " 1 C. & P." read 5 C. & P. 
 
 Page 87 (z),for " B. & E." read A. & E. 
 
 Page 97 [h^for " 1858" read 1558. 
 
 Page 103 (2), for " Stark." read Stra. 
 
 /or "C. &K. "readC. & P. 
 
 Page 136, 10 lines from bottom of page, /or "therein" read those. 
 
CHAPTEE 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 BlacTcstone (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 (&). 
 "A servant 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 lOOZ., 
 with a house in his master's grounds, and who was 
 allowed to take apprentices at a premium, and had five 
 under-gardeners to assist him, was held to be a menial 
 servant (d) . In like manner, a huntsman, though hired 
 
 (a) Comm. I. 422. 
 
 (6) Sea. V. WcUker (1858), 27 L. J. M. C. 207. 
 
 (c) Blackburn, J., in Meg. v. Negm (1873), L. R., 2 C. C. 37; 
 42 L. J. M. 0. 62. 
 {d) Noiolan v. AUett (1835), 2 Cr. M. & R. 54. 
 
 M. & S. B 
 
2 PAETIBS TO THE CONTEACT. 
 
 at yearly wages (e) . On the other hand, a governess (/) 
 at a yearly salary, and the housekeeper ig) of a large 
 hotel are not menial servants. A prima donna giving 
 her exclusive service, and acting under directions, is to 
 be regarded as a servant Qi) . The chairman 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 course 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 knovwi and defined beforehand. The servant who 
 is to perform 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, workmen, and artizans. 
 
 Lastly, there is a class of servants quite sui generis, 
 that of apprentices,, which will be. separately treated of 
 hereafter (k). 
 
 Diffi-culties sometimes arise in distinguishing the 
 relationship of the servant to hia. 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 ovra judgment, and is. 
 not directed by him as to details.. An employer is 
 consequently not liable for the acts of the servant of a 
 contractor employed by him (Z). A contractor was 
 employed to fill in the earth over, a drain which was 
 
 (e) NicoU V. QreavRs (1864),, 33 L. J. C P. 259 ; 10 L. T. (sf.s.) 531. 
 (/) Todd V. Kerrich (1852.), 22. L. J. Ex. L 
 (gr) LawUry. Linden (1876), 10 Ir. Rep. C. L. 188. 
 (h) Lumley v. Gye (1853), 22 L. J. Q. B. 463. 
 (i) Lucas V. Mason (1875), 44 lu J. Ex. 145l 
 {k) Fide Chapter XIV. 
 
 (l) Mederv.L.&N'. W.R. (1849), 4Ex. 244 ; Cf.Sharrodv.L.<SsN. W.S. 
 (1849), 4 Ex. 580. 
 
SERVANT BISTrN-GiriSHED BBOlt CQHTRACTOE. 3 
 
 being made across a highway. The cantraetcxr's 
 servants did the work so carelessly that a person 
 driving along the road, sustained personal, injury. It 
 was held that t^ere 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 hable for injury arising from the 
 negligent manner in which the labourer had done his 
 work {ri) . A corporation is not the master of the servants 
 o£ a contractor who supphed horses and drivers for 
 their watering-carts (p) . 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 m,aster of a 
 <3river he lets out with horses to draw 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 hfting 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, shipowners, and 
 not the conlractoxs,, were liable Cr). 
 
 (m) Peadhey r. Rowland (1853),, 22 L. J. C. P., &1. 
 
 (w) Sadler V. Hemloch (1855)„24 L. J. Q. Bv 138. 
 
 (o) Jones V. Liverpool Oorparaiiom [1885), 14 Q. B. D. 899. 
 
 ip) JDalzell V. Tyrer (1858), 28 %. J. Q., B. 52:. 
 
 (g) Quarman v. Burnett (1840), 6 M. & W. 499 ;. 9 L. J. Ex., 308. 
 
 ir) Union Steamship Co. v. Claridge (1894),. 63 L.. J. P. C. Sfe. 
 
 B 2 
 
4 PARTIES TO THE CONTEACT. 
 
 The servant 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, hut a 
 master has not only that right, but also the right to say 
 how it is to be done " (f). A clerk to a wine merchant 
 authorized by his employer to sign delivery orders per 
 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 (m). 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 commission 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, (y). 
 
 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) Oldfield V. Furmss, Withey & Co. (1893), 9 T. L. R. 515. 
 
 (t) Bkamwell, B., in Reg. v. Walker (1858), 27 L. J. Q. B. 207. 
 
 (m) Larrib v. Atteriborough (1862), 31 L. J. Q B 41 
 
 (x) Reg. V. Bowers (1866), 35 L. J. M. C. 206 
 
 (y) Reg. v. Negus (1873), 42 L. J. M. C. 62. 
 
 (z) Motion V. Michaud (1892), 8 T. L. R. 253, 447. 
 
SERVANT DISTINGUISHED FBOM 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 (6) . 
 
 Servant distinguished from bailee. — A foreman who 
 obtaining fraudulently from the cashier more than was 
 sufficient 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. Tiord Campbell, G.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 Bowen, JJ., dissented from the sweeping 
 interpretation of the Hackney Carriage Acts by Lord 
 Campbell in Powles v. Hider. It is submitted that the 
 
 la) Owilliam v. Tioist, [1895] 2 Q. B. 84 ; 60 L. J. Q. B. 474. 
 6) Flood Y. Jackson, [1895] 2 Q. B. 21 ; 64 L. J. Q. B. 665. 
 
 (c) Sea. V. Cooke (1871), 40 L. J. M. C. 68. 
 
 (d) Bed. V. Goodhody (1838), 8 0. & P. 665. 
 
 (e) Fowler v. Locke (1872), 41 L. J. 0. P. 99 ; 43 L. J. C. P. 394 ; 
 Cf. CoCKBTTON, C. J., in Venables v. Smith, vide infra. 
 
 If) 1 & 2 Will. 4, c. 22, and 6 & 7 Vict. o. 86. 
 
 in) Powles V. Hider (1856), 25 L. J. Q. B. 331 ; Venables v. Smith 
 0877), 46 L. J. Q. B. 470. 
 
 (A) J^ing v. Spun- (1881), 51 L. J. Q. B. 105. 
 
t PAETTES TO THE COHTTEACT. 
 
 Acts referred 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 servant. The decisions in 
 Fowles V. Hider and Venables v. Smith were followed 
 and fully endorsed in the more recent case of Xing v. 
 London Improved Cab Co. (i), where Xiord Usher, M.E., 
 approved what Cockhurn, C.J., had said in Venables v. 
 Smith, 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 remimera- 
 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 Qc) . A manager of a 
 firmi who received forty per cent, on the profits (I) ; a 
 tailor who obtained orders for another, and was paid by 
 a share of the profits as a commission (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 (ra), were held to be servants, not 
 ■partners. The carrying on of an underwriting business 
 at a fixed salary and one-itfth of the profits, but also to 
 be liable to meet a share of unexpected claims, were 
 insufficient in the opinion of Jessel, M.B., to constitute 
 a partnership. "It is not a partnership at aU, but a 
 contract of hiring and service " (o) . 
 
 .(i) King v. London Improved Oah Co. <1889J, 'i3 Q. B. D. 281. 
 #) 53 & 54 Vict. e. 39, s. 1, bs. 3, 6, 
 (l) Stacker V. Brocldehanh (1851), 201.. 3". C!h. 401. 
 \m) Andrews v. PM^fA (1855), 24 L. J. Ch. 58. 
 '(re) Reu. -V. Macdenaid (1861), 31 L. J. M. C. 67 ; 5 L. T. 330. 
 (o) Boss V. Parhyns (1875), 44 L. J. Ch. 610 ; 30 L. T. 331 ; see also 
 Harringtonr. Churchward (1849), 29 L. J. Ch. 521; and Beg. v. Wmtley 
 
BEEVA2^:5e AS TENAKT. 7 
 
 Servant as tesant. — ^The occupation of a house a-s 
 apparent tenant (p), even when for the purpose of 
 carrying 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 51. per 
 annum because he occupied, rent free, a cottage 
 belonging to his master (r), a labourer who received 2s. 
 a week less wages for a similar reason (s), a shepherd 
 whose remuneration 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 hved 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 (^)„ A militia sergeant occupying 
 
 (1851), 21 ii. J. M. C. 44 ; Per Lord CAun-BBLL, " Inter se, the prisoner 
 and his master were not partners. There was no cmnmunity .of profit 
 and loss." 
 
 (v) White V. Bailei/ (1861), 30 L. J. C. P. 253. 
 
 (q) Beg. v. Spurr ell (1866), 35 L. J. M. 0. 72. 
 
 Ir) Bertie v. Beaumont (1812), 16 East. 33. 
 
 (s) B. Y. Cheshunt (1815), 1 B. & Aid. 473. 
 
 It) M. V. Bardwdl (1823), 2 B. & C. 161. 
 
 f«) Hunt V. Gols(m (1833), 3 Mo. & Sc. 790. 
 
 \x) Dobson V. Jmes (1844), 13 L. J. C. E. 126 ; 5 M. & G. 112. 
 
 iv) Ma/uhew v. SuttleiKSi), 24 L. J. Q. B. S4-; 4 E. & B. 347. 
 
 (2) Clark V. Bury St. Edrmmds (1856), 26 L. J. €. P. 12. 
 
8 PARTIES TO THE CONTRACT. 
 
 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 (&). 
 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 (d) . A bailiff in the receipt of weekly wages 
 provided with a house and pasturage for two cows by 
 his master. The house and pasturage were 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 age and sui 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 Kennedy v. Brown et TJx (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 the 
 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 two masters at the same time. 
 
 (a) Fox V. Dalby (1874), 44 L. J. 0. P. 42 ; L. R. 10 C. P. 285. 
 (6) Smith V. SeghiU (1875),44 L. J. M. C. 114; 32 L. T. 859. 
 
 (c) Gambier v. Lydford (1854), 2.'? L. J. M. C. 69 ; 3 E. & B. 346. 
 
 (d) Ford V. Harrington (1869), 39 L. J. C. P. 107 ; 21 L. T. 609. 
 
 (e) Heg. v. Minster (1814), 3 M. & S. 276. 
 
 (/) Heg. V. Ponsonhi/ {18il), L. R. 3 Q. B. 14. 
 
 (S) Kennedy v. Brown et Ux (1863), 32 L. J. 0. P. 137. 
 
INFANTS. — MARRIED WOMEN. 9 
 
 For example, a clerk who sells goods for several persons 
 may be the servant of each of them (^), 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 (l). 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 
 Act, 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) Ren. v. Sattv (1842), 2 Mood. C. C. 257. 
 
 (i) Tite's case (1861), 30 L. J. M. C. 142 ; 4 L. T. 259. 
 
 (h) Wood V. Fenwick (1842), 10 M. & W. 195. 
 
 (l) Reg. V. Lord (1848), 17 L. .J. M. C. 181; 12 Q. B. 757. 
 
 (m) Coxhead v. Midlis (1878), 47 L. J. C. P. 761 ; 39 L. T. 349. 
 
 (a) 37 & 38 Vict. c. 62. (o) 45 & 46 Vict. o. 75. 
 
10 PAETIES TO THE CONTEACT. 
 
 1874 {p) , a married woman is presnmedly free to enter 
 into a contract either as master or servant indepen- 
 dently of h^r husband. Section 1, sub-section (2) of 
 this statute enacts that '' A married woman shall he 
 capahle 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 otherwise, in all respects as il 
 she were a /sme 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 6 
 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 difficult 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 
 iusband, or the circumstance oi their living together (g) . 
 Any presumption arising in favour of the liabihty of 
 tire husband for such acts of his wife ' might eqnally 
 well arise in the care of a sister or hoiis&keeper (r) . 
 
 ip) 33 & 34 Vict. o. 93 ; 37 & 38 Vict. c. 50. 
 
 {q) Eeed v. Moore, 5 C. & P. 200. 
 
 (r) Debenham v. Mellon (1880), 5 Q. B. D. 394; 6 App. Oas. '24; 
 50 L. J. Q. B. 155. Thesigeb L.J. : "' The liability' rf a husband for 
 debts iBcnirred by his wife during cohabitation is based in the mainupon 
 the ordinary principles of agency. " 
 
■ LUNAmcS— PAETNEES. 11 
 
 If a female servant marry, the contract of service is 
 not dissolved, but she mnst 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 estabhshed by the cases 
 of Molton V. Gamroux it) and the Imperial Loan Co, v. 
 Stone (u). In the latter case the law was succinctly 
 stated by Xiord Esher, M.E., as follows: — "When 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 sajue when 
 he made it, unless he can prove further that the person 
 with wKom he contracted Jinew 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 ix) . Where 
 a servant received directly contrary orders from two 
 partners it was held he might obey either (y) . All 
 partners are hable for injury to a servant caused by >one 
 of them, if it occurs in a matter within the scope of iiie 
 common un-deartalring -of the partnership {z). The 
 
 >^s) -Bum's Justice of the Peace, " Sbrvaotb " 222 (30th ed.) 
 
 («) Molton Y. Camroiix (1848), 18 L. J. Ex. 356,; 4 Ex. 17. 
 
 («! Imperial Loan Co. v. Stome (1892), L. E. 1 Q. B. 399. 
 
 (v) Beckham v. Drake (1841), 9M..&W. ,79. 
 
 ix) S. V. Leech' (1%2\), 3 Stark. 70. 
 
 (y) Donaldson v. Williams (1853), 1 Or. & M. 345. 
 
 (z) Ashworth v. 'Sta/merix (1861}, -30 li. J. Q. B. 183. 
 
12 PARTIES TO THE CONTRACT. 
 
 general manager of a firm is not entitled to engage clerks 
 for Iqng 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 employ him as alleged {6) . 
 
 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 (g) . A rate collector not appointed under seal was 
 
 (a) Berridge v. Berridge, (1872), L. R. 2 So. Ap. 183. 
 
 (h) LucUoio V. Charlton (1840), 6 M. & W. 815 ; Arnold v. Poole 
 (1842), 4 M. & G. 860 ; Smith v. Gartwrigkt (1851), 6 Ex. 927 ; 20 L. J. 
 Ex. 401 ; Nicholson v. Bradfidd Union (1866), 35 L. J. 6. B. 176 ; 
 14 L. T. 830. 
 
 (c) Re Contract Co. (1869), 8 Eq. 14. See Companies Act, 1867 
 <30 & 31 Vict. c. 131), s. 37. 
 
 (d) EUy V. Positive, etc. Co. (1876), 45 L. J. Ex. 58 ; 34 L. T. 141. 
 
 (e) 38 & 39 Vict. c. 55, s. 174, sub-s. (1). 
 
 (/) Young v. Leamington Corporation (1882), 52 L. J. O. B. 713 : 
 49 L. T. 1. 
 
 (g) Dyte v. St..Pancras Guardians (1863), 27 L. T..342. 
 
CORPORATIONS. 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. West Ham Union (1856), 25 L. J. Ex. 210. 
 
 (i) Austin V. Bethnal Green (1874), 43 L. J. C. P. 100 ; 29 L. T. 807. 
 
 {k) 18 & 19 Vict. u. 120, s. 42 and Sch. (A). 
 
C 14 ) 
 
 CHAPTEE II. 
 
 The Contract' of Hieiwg and Skryicit. 
 
 Wheeetee. the relation of master; and servant exists 
 there must be a contract expressed or iniphed between 
 them, that tKe 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 (Z) . 
 
 Contract in writing. — Statute of Frauds. — If the 
 
 contract of service is not to be completed wdthin one 
 year it must, by the Statute of Frauds, be in 
 writing (to). 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 vsdll alone satisfy the terms of 
 the statute (n) . A writing on one side with acceptance 
 of it on the other is sufficient 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 (p) . The agreement need 
 not be in one writing, but may be contained in several 
 separate documents if they clearly show that they refer 
 
 (Z) Beeston v. CoUyer (1827), 4 Bing. 309. 
 
 (ot) 29 Car. II. c. 3, s. 4. 
 
 (m) BracegirdU v. Ilecdd (1818), 1 B. & Aid. 722. 
 
 (o) Smith V. male (1857), 26 L. J. C. P. 143. 
 
 ip) Ltroux V. Brown (1852), 22 L. J. C. P. 1. 
 
geneiiaij. hieing. 15 
 
 to each other {q) . The rules, of a workshop may form 
 part of the written contract between a workman and 
 his master (r). If the contract might be performed 
 within the year and there is no agreement to the 
 contrary it is not within the statute is), nor if it is per- 
 formed by one party within the year {t) ; but a contract, 
 which according to its terms is primd facie not to be 
 performed within a year, is not the less within the 
 statute because it is niade_ defeasible by a contingency 
 which raay 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 iy). 
 
 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 (z) . 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 with 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 payment of a month's 
 
 Iq] Crane v. PozoeU (1868), 38 L. J. C. P. 43 ; 20 L. T. 703 ; Jones v. 
 Victoria Qrawig Dock Co. (.1877), 46 L., J. Q. B. 219 ; 36 L. T. 347., 
 
 (r) Cams v. Eastwood (1875), 32 L. T. 855. 
 
 (s-\ Touch V. Strawbridge (1846), 2 0. R 80S ; 15 L. J. C. P. 170. 
 
 («j. China V. H&mming (1849), 4 Ex. 531 ;, 19 L. .J. Ex. 63. 
 
 W Davey v. Shannon (1879), 48 L. J. Ex. 459 ; 40 L. T. 628 ; Dohsan 
 Y. Gaais (1856), 25 L. J. Ex. 267. 
 
 Carl Banks.^. Crossloatd (1874),; 44 L. J. M. C. 8>; 32 L. T. 226. 
 
 (y) 38 & 39 Vict. c. 90, s. 10. 
 
 (z) R. V. Worfidd (1794), 5T.. R. 506'. 
 
 {m} Cviter v. Fxmdl (179&), 6 T. R. 826,-: Fawcm v. Cash (18M), 
 5 B. & Ad. 90*. 
 
16 CONTEACT OF HIEING AND SEEVICE. 
 
 wages from the day of dismissal (b) . This power has, 
 indeed, been so often exercised by the master and 
 acquiesced in by the servant, that it is a matter of daily 
 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. 
 
 With 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 end 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; probabiy 
 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 (c) . In any contract of hiring of a servant of this 
 
 (6) Robinson v. Hindman (1801), 3 Esp. 235. 
 
 (c) Beeston v. CoUyer (1827), 4 Bing. 309 ; Williams v. Byrne (1857), 
 7 A. & E. 177 ; Todd v. Kerrich (1852), 8 Ex. 181 ; 22 L. J. Ex. 1 : 
 Forgan v. Burke (1861), 12 Ir. C. L. R. 495. 
 
GENERAX HIEING. .17 
 
 deseription in which there are any conditions different 
 from those imphed in a general hiring, the agreement 
 shoTild be made in writing or nnder such circumstances 
 that proof of the conditions may be forthcoming if 
 reqxiired. 
 
 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 ig). 
 A hiring for clothes, meat and drink with no mention 
 of time is a yearly hiring Qi) . 
 
 An engineer was engaged at a salary of 500Z. 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 {i). The manager of 
 a shop who was paid his salary of 301. a year monthly 
 v?as held to be hired for a year (k) . In the case of a 
 manufacturer's agent, however, hired 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. Aniott i(1817), 2 Stark. 256 ; lAllei/ v. Mwin (1848), 
 11 Q. B. 742 ; 17 L. 3. Q. B. 132. 
 (e) R. V. Dodderhill (1814), 3M. & S. 243. 
 (/) R. V. Lyth (1793), 5 T. R. 327. 
 (a) R. V. Pendleton (1812), 15 East, 449. 
 (h) R. V. Worfield (1794), 5 T. R. 506. 
 
 (i) Buckingham v. Surrey Canal Co. (1882), 45 L. J. 885 ; 46 J. P. 774. 
 (k) Davis Y. Marshall (1861), 4 L. T. (jr.s.) 266. 
 
 M. & s. c 
 
18 CONTRACT OP HIBINa AND SERVICE. 
 
 dismissal (l). 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 (n). Whilst an ostler's has 
 been held to be a weekly hiring (o) ; that of a boots, 
 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 (g) . 
 
 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. Ibbeison (1858), 27 L. J. C. P. 236 ; 4 C. B. (n.s.) 346. 
 (m) Broum v. Symons (I860), 29 L. J. C. P. 251. 
 (n) Evam v. Roe, (1872), L. R. 7 C. P. 138 ; 26 L. T. 70; see also 
 Robertson v. Jenner (1867), 15 L. T. 514. 
 (o) R. V. Rolvenden (1815), 1 M. & Ry. 689. 
 (p) R. V. St. Martin's (1828), 8 B. & C. 674. 
 (?) StiffY. Cassell (1856), 2 Jur. (N.s.) 348. 
 {r) Baxter v. N'urse (1844), 6 M. & 6. 938. 
 (.s) Holcrofi V. Barber (1843), 1 C. & K. 4. 
 (t) Fairman v. Oakford (1860), 29 L. J. Ex. 459. 
 
PERMANENT EMPLOYMENT. 19 
 
 Channell, 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 serYe 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 (u) . 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 inipliedly 
 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). 
 
 {u) Williamson v. Taylor (1843), 5 Q. B. 175 ; 13 L. J. Q. B. 81 ; 
 A»pden v. Austin (1844), 5 Q. B. 671 ; 13 L. J. Q. B. 155; Dunn v. 
 SayUr (1844), 5 Q. B. 685 ; 13 L. J. Q. B. 159 ; Down v. Pinto (1854), 
 9 Ex. 327 ; 23 L. J. Ex. 103. 
 
 (k) Pilkington v. Scott (1846), 15 M. & W. 637 ; Hartley v. Cummings 
 (1847), 5 C. B. 247 ; 17 L. J. C. P. 84. 
 
 (y) Emmens v. Elderton (1853), 4 H. L. C. 624 ; Hartley y. Cummmgs 
 (1847), 5 C. B. 247 ; Pilkingtonv. Scott (1846), 15 M. & W. 637 ; Down v. 
 PiiUo (1854), 9 Ex. 327. 
 
 (z) Leloir v. Bristoio (1815), 4 Camp. 134. 
 
 c2 ' 
 
20 CONTHACT OF HIEmG AMD SBEVICB. 
 
 Or a sum of money may be deposited by the servant 
 with the master as a gnarantee fund, as is sometimes 
 done in hotels, to meet such losses. And as the master 
 will be 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 Beveral 
 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 
 
 (a) Huttman v. Boulnois (1826), 2 G. & P. 510. 
 (6) Crocker t. Molyneux (1828), 3 C. & P. 470. 
 
 (c) Bayley v. Eimmdl (1836), 1 M. & W. 506. 
 
 (d) Judicature Act, 1873, b. 25, sub-s. 7) ; JiriUdn v. Soseiter (1879), 
 11 Q. B. D. 123. 
 
BREACH QP THE COHTEACT. 21 
 
 provided there is at least air express negative piorpose, 
 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. 
 pubUshing or communicating the information thus 
 obtained (g) . This principle was stiU more emphatically 
 stated in a later case (h) 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) art 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" Newspaper Co. v. 0'<7oM?ior-(1893), 9 T. L. B. 526. 
 
 (/) WUtwood Ghemical Go. v. Hardman, [1891] 2 Ch. 416 ; 60 L^ J. 
 Ch. 428. See judgment of Lindlet, t. J. 
 
 (3) Merryweather Y. Jfooj-B, [1892J2Cla.. 518 ; 61 L. J. Cli. 505. 
 
 {h) Rohh Y. Green, [1895] 2 Q. B. 315 ; 64 L. J. Q. B. 593 ; 69 J. P. 695 ; 
 Louis Y. Smellie (1895), 73 L. T. 226. 
 
 [i] Davis v. Foreman, [1894] 3 Oh. 654. 
 
22.! CONTEACT OF HIEING 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 {j). 
 
 Conspiracy to interfere with contract of serYice. — It 
 was decided in a recent important case (k) that a com- 
 bination by two or more persons to induce others not to 
 eixiploy 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 (Z). Stokers on a 
 steamship (m), an overseer in a printing office (ra), are 
 artificers, and a man engaged to look after a glebe is a 
 labourer (o). By the Customs and Inland Revenue Act, 
 1869 {p), 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 is), have been held subject to duty. 
 
 (j) Grimston v. Cunningham, [1894] 1 Q. B. 125. 
 
 (k) Temperton v. MusseU, [1893] 1 Q. B. 715 ; 62 L. J. Q. B. 412. 
 
 [1) 54 & 55 Vict. c. 39, sohed. 1. 
 
 {m) Wilson v. Zulueta (1850), 14 Q. B. 405 ; 19 L. J. Q. B. 49. 
 
 (n) Bishop V. Letts (1858), 1 F. & F. 401. 
 
 (o) Reg. V. Worthy (1852), 21 L. J. M. C. 44 ; 11 ,Tur. 1137. 
 
 (p) 32 & 33 Vict. 0. 14, ». 19. 
 
 ig) 39 & 40 Vict. o. 16, s. 5. 
 
 (r) Spencer v. Schuman (1821), 28 L. T. 873. 
 
 (s) Yelland v. Vincent (1883), 47 J. P. 230. 
 
(23 ) 
 
 CHAPTEE III. 
 
 The Consideration — Wages. 
 
 Consideration — express or implied. — The contract of 
 hiring to be valid requires consideration which may be 
 express or imphed. To entitle a servant to v^rages 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 
 with a view to a legacy from the employer (f) , 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 (y), 
 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 he. for wages. Thus, for example, 
 a person who had performed work for a committee 
 
 (t) Le Sage v. GoussmaUr (1794), 1 Esp. 188. 
 (u) Wilkhis V. Wdls (1825), 2 C. & P. 231. 
 (v) Osbom V. Guy's Hospital (1726), 2 Stra. 728. 
 (w) Bradshaw v. Hayward (1842), Car. & M. 591. 
 (x) Monkmanv. Shepherdson {184Q), 11 A. &E. 411. 
 (V) Parker v. Ibhetson (1858), 27 L. J. C. P. 236. 
 z) Mansfeld v. Scott (1833), 1 CI. & F. 329. 
 
24 THE CONSIDEEATION — WAGES. 
 
 under a resolution " that any service to be rendered by 
 him should be taken into consideration, and such 
 remuneration should be made as should be deemed 
 right," was unable to recoYer anything, Lord Ellen- 
 borough 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 vnrote 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 bona, fide, ought 
 to have given (6) : 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 50Z. 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 (i). 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. Brewer (1813), I M. & S. 290. 
 (6) Bryant v. Flight (1839), 5 M. & W. 114. 
 
 (c) Bird V. McGahey (1849), 2 C. & K. 707. 
 
 (d) Peacock v. Peacock (1809), 2 Camp. 45. 
 
WAGiES. 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 amount of the wages or 
 remuneration, or the same cannot be proved, a promise 
 may be imphed on the part of the master to pay the. 
 servant so much as his services are worth, which if 
 disputed between them must be settled by a jury. 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 wages 
 without first applying to the third party to fix their 
 amount (/) . 
 
 Additional renumeration 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 at 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 (h) 
 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 of6.ce to which the deceased had been appointed, 
 it was observed that had the plaintiff's case rested 
 wholly on the fact of the new duty being imposed upon 
 him, he would not. have been entitled to any additional 
 salary on a quantum m.ermt ; it it did,, every porter in a 
 shop, or clerk in an of6.ce, would upon an increase in his 
 master's business be equally entitled to demand an 
 
 (e) lewry v. Bush (1814), 6 Tkunt. 302. 
 if) Owen V. Bowm (1829)*. 4 C. & P. 93. 
 {g) ETa/rris v. Carter (1854), 3 E. & B. 559. 
 (A) Bdl V. Drummond (17ai)« 1. Peaka, 63. 
 
26 THE CONSIDEEATION — 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 
 does 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 (k) . 
 
 What servant entitled to if dismissed. — Where 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 {1} ; and that even though the master may 
 have recovered damages against him for the same act of 
 misconduct (to) . But menial servants would appear to 
 
 (t) Cuchson V. Stones (185.3), 28 L. J. Q. B. 24. 
 
 (k) Inglis v. East India Co. (1851), 18 L. T. 93. 
 
 (I) Spain V. Amott (1817), 2 Stark. 256 ; R. v. Welford (1778), 
 Cald. 57; Turner v. Eobiiison (1833), 5 B. & Ad. 789; Bidgway v. 
 Hungerford Marlet Co. (1835), 3 A. & E. 171 ; Lilley v. Elwin (1848), 
 11 Q. B. 742. 
 
 (ot) Turner v. Sohinson, sti/pra. 
 
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 {n) 
 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 serYant 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 
 actually rendered (p) ; or he may regard the contract as 
 still existing and bring an action for damages (q) ; 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 (r) ; 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 
 
 (») Brown v. Croft fl828), 6 C. & P. 46. 
 
 (o) Bird V. Randall (1762), 3 Burr. 1345 ; Huttman v. Boulnois (1826),, 
 2 C. & P. 510. 
 
 (p) lAlley V. Mvnn (1848), 61 Q. B. 755 ; PlaticM v. Colhum (1831), 
 
 (q) Gandall v. Pordignay (1816), 1 Stark. 190 ; ColUmv. Price (1828), 
 6 Bing. 132. 
 
 (r) Fewings v. Tisdal (1847), 1 Ex. 295. 
 
 \s) Robin-son v. Hindman (1801), 3 Esp. 235. 
 
zS. THE CONSIDiBBATION — 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 (t) . The 
 Statute of Limitaiions {u) includes claims for wages,, so 
 that they are barred after six. years. When a servaait: 
 is under age the master may be considered to stand as 
 it were in loco parentis, and it wiU 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 &l., 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 
 payment valid. 
 
 Breakages and losses by servant. — If goods are lost 
 or broken by a servant the master cannot, in tlie 
 absence of express agreementj retain out of, or set 
 off against the servant's wages the value of the damage 
 he has suffered (y) . The master's only remedy is by 
 proceeding against the servant, or, by refusing to pay 
 the wages, enabling himself to set up a counter-claim 
 when the servant brings an action for their recovery. 
 
 ProYision of medical attendance for servant. — A 
 master is not bound to provide his servant with medical 
 attendance in case of illness or accident {z) ; but if a 
 
 [t] Sdlm V. Norman. (1829), 4 C. & P. 80. 
 {u) 21 Jac. I., 0. 16. 
 
 (?c) Hedgley y. Holt (1829), 4 C. & P. 104 
 {y) Ldoir v. Bristow (1815), 4 Camp. 134. 
 
 (z) Neiohy v. Wiltshire (1802),, 3 B. & P, 247 j Winndl v. Admy 
 (1802), 3 B. & P. 247. 
 
tLXEGAl CONTEACTS. 29 
 
 servant fall ill, and flae maBtex calls in his own medical 
 man to attend on himj the master will not be permitted 
 to deduct the amount of the doctor's bill from the 
 servant's wages Tinle-ss there is a special agreement 
 between them that he shonld 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 amount shall be (6), A verbal promise 
 to work without wages is not binding (c). 
 
 lUegal 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 
 ugainst 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 
 heen in law any contract between them (/). 
 
 Contracts in restraint of trade. — Any contract of 
 hiring which necessitated a general restraint of trade 
 would he void. Ever since the leading case of Mitchel v. 
 
 (a) Sdlen v. Norman (1820), 4 C. & P. 80. 
 Cb) mtchcocTc V. CoUr (1837), 6 A. & E. 438. 
 c Lambert v. NoHhern (1869), J8 W. E. 180. 
 \d) Poplett V. Stochdale (1825), 2 C. & P. 198. 
 (€) Gvrardy v. Richa/rdson (1798), 1 Esp. 131. „ , , 
 
 (/) E. Y. NoHhwingfldd (1831), 1 B. & Ad. 912; Bradshmv v. 
 Hayward (1842), Car. & M. 591. 
 
30 THJE CONSIBBEATION — WAGES. 
 
 Beynolds (g) , decided as long ago as 1711, it has always 
 been held that all contracts in general restraint of 
 trade are void, but that limited restraints, if for good 
 consideration, are legal (h) . 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 (i). This bond was held to be illegal at 
 common law, and in delivering the judgment of the 
 Court of Exchequer Chamber, Alderson, B., said, 
 " Primd 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 periods 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 bond of this sort between masters is 
 capable of being enforced at law, an agreement to the 
 same effect amongst workmen must be equally legal 
 and enforceable, and so we shall be giving legal 
 
 ig) Mitckel V. Reynolds, 1 Smith's L. C. 
 
 (h) Collins V. Locke (1879), L. R. 4 Ap. 674. See, however, the 
 important case of Nordenfddt v. Maxim-Nordenfeldt Co., [1894] 
 A. C. 535, and the judgment of Lord Heeschell. 
 
 (i) Hilton V. Edcersley (1856), 25 L. J. Q. B. 199 ; 6 E. & B. 47. See 
 also Ward v. Byrne (1839), 5 M. & W. 548 ; Median v. May (1843), 
 11 M. & W. 653. 
 
BANKBUPT 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 Union Act, 1871 (^), 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 agrepment or 
 trust. 
 
 Servant absolYed from serYioe 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 (Z) . 
 
 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 {m), and therefore no order can be made 
 under that section for payment of any part of such 
 wages to his trustee in bankruptcy {n) . 
 
 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 501. 
 
 Ik) 34 & 35 Vict. c. 31, s. 3. 
 (I) O'NeU V. Armstrong, [1895] 2 Q. B. 418. 
 (m) 46 & 47 Vict. c. 52. 
 
 in) In re Jones, Ex parte Lloyd (No. 2), [1891] 2 Q. B. 231; 
 af. GAsok V. Carndhers (1841), 8 M. & W. 343. ^ m «<, 
 
 (o) Armstrong v. South London Tramways Co. (1891), 64 L. T. 96. 
 
32 THE COKBIDEEATION— "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 20Z. 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 Workmen Act, 1875 (q), enabHng 
 a court of summary jurisdiction to settle disputes 
 regarding wages 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 & 52 Vict. e. 43, s. 116. 
 
 (q) 38 & 39 Vict. c. 90, s. 10. 
 
 (r) Conciliation Act, 1896 (59 & 60 Vict. c. 30). 
 
( 33 ) 
 
 CHAPTEE IV. 
 
 Dissolution op 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 m.aster 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 
 Farrow v. Wilson (s) clearly decides the matter. The 
 decision there was that a farm bailiff, who had been 
 hired 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 
 vnth the master and his executors, the latter vdll 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 600Z. {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. Wilson (1869), L. R. 4 0. P. 764 ; 38 L. J. C. P. 326. 
 (t) Davison v. Seeves (1892), 8 T. L. R. 391. 
 <m) Thomas v. Williams (1834), 1 A. & E. 685. 
 
 M. & 3. D 
 
34 DISSOLUTION OF THE CONTEACT — DISCHARGE. 
 
 Clerks and servants are entitled under the Preferential 
 Payments Act, 1888 ix), repeating and re-enacting 
 section 40, sub-section (1) (c) of the Bankruptcy Act, 
 1883 iy), to have four months' wages, if so much is due 
 to them, and not exceeding 501. Xiabourers and workmen 
 are entitled to two months' wages up to 251. 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 Coinpanies, going intoliquidation (a), or 
 tlie appointment of a receiver (b) operates to disciarge 
 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 
 property cannot insist upon the fulfilment of the 
 contract by the servant id) . 
 
 3. Change of the employers, as a change in the con- 
 stitution of a firm of partners. — rin the absence of an 
 express agreement to the contrary, 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 
 tihere 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 (/). 
 
 5. By notice. — (i.) In the case of domestic serYants, 
 
 a month's notice is requisite, or in lieu thereof a month's 
 
 (K) SI & 52 Viot. c. 62. [y) 46 & 47 Vict. o. 52. 
 
 (z) Ex parte Powis, Re Srown (1874); 43 L. J. Bk. 24 ; 29 L. T. 654. 
 (a) In re Oriented Bank Corporaiimi {MacBowall's case), (1886), 
 55 L. J. Ch. 620. 
 
 (6) Eeid v. Explosives Oo. (1887), 19 Q. B. D. 264. 
 
 (c) Ex parte Schmnann, Re Foster and Co. (1887), 19 L. E. Ir. 241. 
 
 (d) Gibson v. Oarruthers (1841), 8 M. & W. 343. 
 
 (e) Tasker v. Shepherd (1861), 30 L. J. Ex. 207-; Brace v. CaMer, 
 [1895] 2 Q. B. 253. 
 
 (/) Donaldson v. Williams (1833), 1 Cr. & M. 345. 
 
BY NOTICE. as 
 
 wages imist be paid. If snch a serrant leaTes his 
 situation without just cause, or is for some good reason 
 rightfully dismissed, he cannot recoYer any wages^ 
 which otherwise would be dxie since the date of the 
 last monthly 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 furtlier 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 (gr) . If, after proper notice, a servant refuses to 
 leave, the master is justified in employing a certain 
 amount of force to compel him to do so (h) . 
 
 (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 {i) ; but it has 
 never been clearly decided what the length of notice 
 must be, and the decisions on the point are anything 
 bnt 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 
 
 {q) Walsh V. Walhy (1874), 43 L. J, Q. B. 102 ; X. R. 9 Q. E. 267. 
 (h) Machay v. Ford (1860), 29 L. Ex. 404 ; Walsh v. WalLey, 
 
 (i) This is by no means certain. See Best, C. J., in Beeston v. Colly e 
 (1827), 4 Bing. 309; and Colbbidqe, J., in Eyam v. JenJdnson (1856), 
 25 L. J. Q. B. 11. But see Demlan, C.J.-,Tn:Fa,vDcett v. Gash (1834), 
 5B. &Ad. 904. ^.„. 
 
 (j) Gandall v. Pontignay (1816), 1 Stark. 198 ; Williams v. Byrne 
 (1837), 7 A. &.B. 177; E'littman v. Boulnois (1826), 2 0. & P. 815; 
 Todd V. Kerrich (1852), 22 L. J. Ex. 1; Boston -v. Collyer (1827), 
 4 Bing. 309 ; Pottte v. Sharp (1896), 65 L. J. Cii. 908 ; 75 L. T. 265. 
 
 D 2 
 
 :r 
 
36 DISSOLUTION OP THE CONTRACT. — DISCHAEGB. 
 
 been found by a jury to be entitled to six months' 
 notice (k) . Shortly after, the editor of a weekly news- 
 paper was held entitled to twelve months' notice (Q. 
 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 
 bo 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 (p). 
 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) Ghamberlain v. Bemiett (1892), 8 T. L. R. 234. 
 
 (I) Brennan v. Gilbart Smith (1892), 8 T. L. R. 284. 
 
 (m) Lmve v. Walter (1892), 8 T. L. R. 358. 
 
 (n) Gallo V. Brouncker (1831), 4 C. & P. 518. 
 
 (o) Price v. Mouatt (1862), 11 C. B. (n.s.) 508. 
 
 (p) Spain V. Amott (1817), 2 Stark. 256. 
 
 Iq) Turner v. Mason (1845), 14 M. & W. 112. 
 
"WILFUL DISOBEDIENCE. 37 
 
 find another situation, is not sufficient ground for 
 dismissal (r). 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 lavdiul (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 {z). A waggoner refusing to work without 
 extra beer (a), and a domestic servant for staying out 
 all night (&), were held justly dismissed. Eeceiving 
 
 (r) B. V. Polesworth (1811), 2 B. & Aid. 483. 
 (g) Jacquot V. Bourra (1839), 3 Jur. 776. 
 (t) Turner v. Mason (1845), 14 M. & W. 112. 
 ^ (u) Cadlo V. Brouncker (1831), 4 C. & P. 518. 
 (x) Churchward v. Chambers (1860), 2 F. & F. 229. 
 iy) Edwards v. Leary (1860), 2 F. & F. 94. 
 (2) Cussons V. Skinner (1843), 11 M. & W. 171. 
 (re) LiUey v. Mwin. [ISiS), 11 Q. B. 742 ; 12 Jur. 623. 
 (6) Eobiiison v. Hindman (1801), 3 Esp. 235. 
 
38 DISSOLUTION OF THE CONTEACT — ^DISCHARGE. 
 
 money contrary to an express agreement at the time 
 of hiring is a sufficient cause for dismissal (c) . 
 
 (b.) Grossly immoral conduct. — The following are 
 instances of immoral conduct which 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 (h) . 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 would appear, if the case of Fletcher v. 
 Krell (k) is to be relied on, that misconduct previous to 
 entering into service which requires residence in the 
 master's house vrill 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. 
 
 (c) Bray v. Chandler (1856), 8 C. & P. 80. 
 
 (d) R. V. Brampton (1777), Cald. IL 
 
 (e) Latter v. Braddell (1881), 50 L. J. Q. B. 448 ; 44 L. T. 369. 
 (/) Atkin V. Acton (1830), 4 C. & P. 208. 
 
 (g) R. V. Welford (1778), Cald. 57. 
 
 (h) Spark v. Phillips (1839), 5 M. & W. 279 ; Farquhar v. Naish 
 (1893), 17 C. of Sess. Cas. 716 (So.). 
 
 (i) Read v. Dunsmore (1840), 9 C. & P. 594. 
 
 {k) Fletcher v. Krell (1873), 42 L. J. Q. B. 55 ; Cf. Andreiusv. Qarstein 
 (1861), 31 L. J. 0. P. 15. 
 
INCOMPETENCE. 39 
 
 i'or noisy and turbulent conduct late at night,, a 
 servant may not only be dismissed, but may be given, 
 into custody ([). 
 
 Theft (?«■) or embezzlement (n) from his master' would, 
 of course, justify dismissal. But. where a school teacher 
 was dismissed a fortnight after being arrested oa a 
 criminal charge, it was held that proper notice had not 
 been given, and that an inj,unction was rightly applied 
 for immediately the letter of dismissal was received, 
 and 4:01. damages were awarded (b). 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 (g) . 
 
 (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 
 
 {ly Shaw V. Chairritie (1850}, 3 C. & K. 21. 
 
 (m) Cunningham v. Fonblanque (1833), 6 C. & P. 44. 
 
 (m) Spotmvoode v. Barrow(l»50), 5 Exo. 110 y 19 L. J. Ex. 226. 
 
 (o) Kemp V. Oaddington School Board (1893), 9 T. L. R. 301. 
 
 (p) Parsons v. London Gornity Council (1893)., 9. T. L. B. 619- 
 
 (3) Pearse v. Foster (1886), 17 Q. B- D. 536. 
 
 (»•) Harm^r v. Qctrndivs (lS58.)i, 28, L. J., C, P. 86. 
 
40 DISSOLUTION OP THE CONTEACT — DISCHAEGE. 
 
 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 for 
 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. Brouncher (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 (u) . 
 
 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) Searh v. Sidhy {1813), 28 L. T. 411. 
 [t) Callo V. Brouncker {1831), 4 C. & P. 518. 
 {u) Arding v. Lomax (1855), 24 L. J. Ex. 80. 
 (x) Turner Y. Robinson {1833), 5 B. & Ad. 789. 
 {y) Amor v. Fearm (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 (z). 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 v. Foster (a), when Lord Esher, M.E., 
 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) Ridgway v. Hungerford Market Co. (1835), 3 A. & B. 171. 
 {a) Pearoe v. Foster. (1886), 17 Q. B. D. 536 ; 55 L. J. Q. B. 306. 
 
42 DISSOLUTION OP THE, GQHTBACT — DISCHAEGB. 
 
 carrying on of. his school, and he was,, therefore, not 
 justified in terminating the engagement (6). 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 shovnng that there was, 
 just cause for the dismissal at the time. This was first 
 decided in the case of Bidgway v. Hungerford 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. Tindal,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. 
 Bamsbotham (/), 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. Skinner (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 aware of the misconduct which 
 
 (fe) Filleid V. Armstrong (1837), 7 A. & B. 557. 
 
 (c) Walker v. British Guarantee Assoc. (1852), 18 Q. B. 277 : 
 21 L. J. Q. B. 257. 
 
 (d) Bidgway v. Hungerford Market Co. (1835), 3 A. & E. 171. 
 
 (e) Baillie v. Kelt (1838), 4 Bing. K C. 638. 
 
 (/) Crowther v. Ba7nsbotham.{179^), 7 T. R. 754. 
 
 (g). Cussons v. SJcinner (1843), U M. &, W. 161 ; 12 L. J. Ex. 347. 
 
NB.ai/L&EMGB.. 43 
 
 would justify dismissal at tLe time he gaYe his servant 
 notice, the decisions are somewhat conflicting. In the 
 last-mentioned case, Parke,^., clearly laid it down that 
 scient&r 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 chents against his master, before he 
 dismissed him Qi).. In Spotswoade v. Barrow (i), a 
 case tried some time after those just mentioned, it 
 appears doubtful from the reports whether knowledge 
 at the time of disnaissal was considered essential. 
 Alderson, B,, is reported to have said: "All the defendants 
 undertake to prove is, that they had justifiable cause for 
 the dismissal." This case was referred to at some length 
 by Bramw&ll, B., in his judgment in Cowan v. Mil- 
 hourn (k), and makes it clearer that in the report, that 
 knowledge is not necessary. This is certainly the 
 decision, in a case (Q decided in the same year, in 
 •which it was laid down, that i£ 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. 
 And this was followed in a recent case of the dismissal 
 of a managing director of a company. Eeceiving a 
 commission from a shipbuilding company was held to 
 be a good ground for dismissal, although not discovered 
 
 [h] Mercer v. WTicUl (1845), 5 Q. B.447. 
 (i) Spotswoade v. Bwrrow fl850), 5 Ex. 110. 
 (k) Cowan v. MUboum (1867), 36 L. J. Ex. 124. 
 (I) WUlets V. Green (1850), 3 C. & K. 59. 
 
44 DISSOLUTION OF THE CONTEACT — DISCHARGE. 
 
 until after the dismissal had taken place. It was also 
 decided, that his salary being payable yearly, and he 
 being dismissed for misconduct, he was not entitled to 
 any part of the unpaid salary for the current year of 
 his service (n). 
 
 (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 de combat at the critical moment by 
 illness. This is what happened in the case of an opera 
 singer 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 (p) . But being prevented from attending merely 
 the rehearsals, is not sufficient ground for dismissal (g). 
 
 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 kept away 
 from business for more than a month (r) . 
 
 (m) Boston Deep Sea Fishery Co. v. Ansell (1888), 39 Ch. D. 339 ; 
 59 L. T. 345. 
 (o) Goohson v. Stones (1859), 28 L. J. Q. B. 25 ; 1 E. & B. 248. 
 (p) Poussard v. Spiers and Pond (1876), 1 Q. B. D. 414. 
 (5) Bettini v. Gye (1875), 1 Q. B. D. 183 ; 45 L. J. Q. B. 209. 
 (r) Reg. v. Muschen (1878), 38 L. T. 38 ; 42 J. P. 264. 
 
(45 ) 
 
 CHAPTEE V. 
 The Eights and Duties of Master and Sbbvant. 
 
 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. Eeciprocally 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 (f). 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 (u). 
 
 Bights 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 Limland v. Stephens (1801), 3 Esp. 269. 
 
 (t) BracegircUe v. Heald (1818), 1 B. & Aid. 722. 
 
 {u) Hochster v. De La Tour (1853), 2 E. & B. 678 ; 22 L. J. Q. B. 455. 
 
46 RIGHTS AND DUTIES UF 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 Tiniversally restrained, 
 either expressly or by imphcation, that the limited 
 right may be considered the rule, and the general right 
 the exception. It niay be expressly hmited by a 
 stipulation that the servant shall only be required to 
 render certain defined services, ox that certaan others 
 shall not be required of him^ or as is more commonly 
 the case it may be imphedly restrained by hiring the 
 servant to fill a ]DarticTilar capacity. 
 
 What orders are reasonable. — In order to ascertain 
 therefore whether a master is entitled to exact from 
 his servant 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 wonld seem to be open to endless 
 discussion, from the infinitely varied customs in 
 difi'erent families. But if the true construction of such 
 a contract on the part of th« servant be that the 
 
 {x) Turner v. Maami (1845), 14 M. & W. 112-, 14 L. J. Ex. 311. 
 
"WHAT OKDEES AEE ■EEASDNABIE . 47 
 
 seTvant engages to peTform fhe duties peculiarly in- 
 cident to that capacity, and in subordination thereto to 
 perform such other reasonable services as the master 
 may reqnire of him, and his time will allow, the 
 difficulty is greatly diminishied. 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 
 otlierwise there would be violation of the principle 
 beifore stated, that the master is entitled to require his 
 servant to work at all reasonahle hours, during the 
 continuance of the contract. The question whether 
 the service required comes vrithin the scope of those 
 contracted for would therefore uppear 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 tlie master's judgment as to 
 what are reasonable orders, was shown in the case of 
 Spain 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 raaster to take a horse to the 
 marsh, about a mile away, just as dinner was ready, and 
 upon his refusal to go "ontil 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 Ellenborough that by 
 persisting in his refusal to obey his roaster'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 
 Ttpon 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) Spam v. ArmttfilW), 2 Start, 25B. 
 
•48 EIGHTS AND DUTIES OF MASTEE AND SEETANT. 
 
 might be very inconvenient for the master to change 
 the hour 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, 
 unreasonable 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 {z). And the 
 refusal of the messman of a regiment to send up dinner 
 for half-an-hour was considered reasonable ground for 
 his dismissal (a). 
 
 Capacity and status of servant. — In determining 
 whether 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, 
 might be very unreasonable in that of one placed in a 
 position of responsibility and confidence, at a large 
 yearly salary, and of superior education. Wlaere 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. Elwin (1848), 11 Q. B. 742 ; 17 L. J. Q. B. 132. 
 (a) Churchward v. Chambers (1860), 2 ]?. & F. 229. 
 (6) Price. V. Mouatt (1862), 11 C. B. (n.s.) 508. 
 
INVENTIONS BY SERVANTS. 49 
 
 Orders accompanied by danger.— Orders involving 
 
 • 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 be 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 
 
 (r) Tiimr-rv. Mason (1845), 14 M. & W. 112; 14 L. J. Ex. .311. 
 Woodley v. Metropolitan District Rail. Co. (1877), 2 Ex. D. 384; 
 46 L. J. Ex. 521. 
 
 (d) Rohiiuon v. Hindman (1801), 3 Esp. 235. 
 
 (e) Morison v. Thompson (1874), 43 L. J. Q. B. 215. 
 
 (/) li. V. Arhwright (1785), 1 Web. P. C. 71 ; Re Russell's Patent 
 (1857), 30 L. T. 178 : 2 De (I. & J. 130. 
 
 M. & S, K 
 
50 BIGHTS AND DUTIES OP MASTER AND SERVANT. 
 
 belong to his master, and the master will be able to 
 register or patent them {g) . 
 
 May a master chastise his servant. — As regards the 
 right of the master to chastise his servant the old 
 authorities appear to recognize such a right, but it may 
 well be doubted whether such a right exists at the 
 present day. Whilst the infliction of corporal punish- 
 ment by the master may be permissible Qi) 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 Blackstone "good cause of departure"®. If death 
 followed 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 {I) . 
 
 If serYant 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 
 be 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 {m) . 
 
 If a servant knowingly make his master break his 
 covenant he is liable in damages {n) . 
 
 Duty of servant to be diligent. — It is the duty of a 
 
 (g) Makepeace v. Jackson (1813), 4 Taunt. 770; Bloxam v. Elxie 
 (1825), 1 C. & P. 558 ; Shepherd v. Conquest (1856), 25 L. J. C. P. 127 ; 
 Nottage v. Jackson (1883), 52 L. J. Q. B. 760 ; 11 Q. B. D. 627. 
 
 (h) Winstone v. Linn (1823), 1 B. & C. 460 ; Holroyd, J. 
 
 (i) 1 C. 427. 
 
 (k) Req. v. Leggett (1838), 8C. & P. 191. 
 
 (l) Reg. V. Huntley (1854), 3 C. & K. 142. 
 
 (m) Shaw v. Chairi'le (1850), 3 C. & K. 21. 
 
 (n) Hussy v. Pacy (1667), 1 Lev. 188. 
 
PEOTECTION OF YOUNG SEEVANTS. 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 {p). 
 
 Clerks and stewards must account for moneys 
 recelYed. — 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. Orompton (1601), Cro. Eliz. 777 ; Savage v. 
 Wcdtham (1708), 11 Mod. 135 ; Nichson v. Brohan (1713), 10 Mod. 109 ; 
 Pritchard v. Hitchcock (1843 , 6 M. & G. 165, Crbsswell, J. 
 
 {p) Leloirv. Bristow (1815), 4 Camp. 134. 
 
 (q) Jenkins v. Ooidd (1827), 3 Russ. 385. 
 
 (r) Ormond {Lady) v. HutcUnsm (1806), 13 Ves. 53, 92. 
 
52 EIGHTS 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 
 exphcit in this respect 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 faihng to do so, the servant 
 may recover against hirn 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 civil 
 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 (y), 
 
 is) 48 & 49 Vict. 0. 69, s. 12. 
 
 (t) See Chap. III. 
 
 (m) JDavies v. Davies (1839), 9 C. &P. 89. 
 
 (ce) R. v. Eidhy (1811), 2 Camp. 650. 
 
 (y) R. V. Friend (1802), Russ. & Ry. 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 (^) 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 samei, whereby the health of such servant 
 is, or is Hkely 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 circumstances where bodily 
 injury is inflicted on servants under sixteen years of 
 age, for which the party conunitting it is hable 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. C. J. Smith (c) when reviewed and the 
 conviction quashed by the Court 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 
 
 (z) Beg. V. Sloane, el Ux. (1851), 33 Sess. Pap. (0. 0. C.) 482. 
 
 (a) 14 & 15 Vict. c. 11, s. 1, repealed by 24 & 25 Vict. c. 95, s. 1, 
 amd re-enacted by 24 & 25 Vict. c. 100, s. 26, partly repealed by 
 S. L. R. Act, 1892 (55 & 56 Viot. o. 19 ) ; See also 38 & 39 Vict. c. 86, s. 6 
 (Conspiracy and Protection of Property Act, 1875). 
 
 (6) 24 & 25 Vict. c. 100, s. 73. 
 
 (c) Eeg. V. C. J. Smith (1865), 34 L. J. M. C. 155. See especially the 
 judgments of Bblb, C.J., and Blackbukn, J. 
 
54 RIC^HTS AND DUTIES OF MASTER AND SERVANT. 
 
 unable to take care of himself, 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 proYide 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 (e) at nisi prius for the recovery 
 of an apothecary's bill for medicine and attendance 
 provided to the servant of the defendant. Lord 
 Kenyan, C.J., said " he was of opinion that the master 
 was obliged 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 prius by Lord 
 Eldon, C.J. 
 
 (d) WatUng v. Walters (1823), 1 C. & P. 132. 
 (c) Scarman v. Castdl (1795), 1 Esp. 270. 
 (/) Simmons v. WUlmott (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 Authorities 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 supphed 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 him to 
 repay the parish for the cure of his servant ; the parish 
 is bound to take care of accidents" ig). 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 Qi). But a surgeon who attended 
 a pauper in a parish 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 {h), and conse- 
 quently the master of such a servant would not be liable 
 
 (g) Newhy v. Wiltshire (1785), 2 Esp. 739. 
 (h) Lamb v. Burne (1815), 4 M. & S. 275. 
 (i) Wing V. Mill (1817), 1 B. & A. 104. 
 ik) Watson v. Turner (1767), Bull. N. P. 147. 
 
56 EIGHTS AND DUTIES OP MASTEE AND SEEVANT. 
 
 unless he expressly desired a medical man to attend 
 him, or has so acted that it may be imphed he has 
 undertaken 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 (Q . 
 
 The decision of Lord Kenyan was overruled, the law 
 being laid dovra. both as regards theliability 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 nisi 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 
 Kenyan in the case of Scarmdn v. Gastell was not a 
 hasty opinion, but formed 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 Scarman v. Gastell 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) R. V. Wamn (1803), Russ. & Ry. C. C. R. 482. 
 (to) Wmnail v. Adne.y (1802), 3 B. & P. 247. 
 
MEDICAi ATTENDANCE. 57 
 
 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 Kenyan misled him when he adopted the 
 doctrine upon which he decided the case of Scarman v. 
 Castell. Probably at the moment it occurred to him, 
 that if the master was not bound to provide medical 
 assistance for his servant, the latter would be left 
 wholly destitute, but I am perfectly sure it is more for 
 the advantage of servants that the legal claim for such 
 assistance should be against the parish officers, rather 
 than against 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." Booke 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 obliged, 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." 
 
 "Where 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 bound 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 ©P MASTER AND SERVANT. 
 
 not think I should be authorized, in saying that they are 
 bound to do so" (n). 
 
 That a master may render himself liable to pay for 
 the medical aid given to his servant in consequence of 
 his acquiescence and knowledge implying a contract to 
 supply it, is shown by the case oi- 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. Berry 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 10s. 
 to pay for medicine. There was a further charge' in 
 the bill for attendance upon another servant, Ellen 
 Bead, who had hurt 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 their knowledge. It was held that the master, 
 the defendant, was liable in the case of Parry, but not 
 in that of Bead. Mr. Justice Taunton in his judgment 
 
 (re) Sellen v. Norman (1829), 4 C. & P. 80. 
 (o) Cooper V. Phillips (1831), 4 C. & P. 581. 
 
INDEMNITY. 59 
 
 observed in regard to the ease 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 (g) . 
 
 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) Adamson v. Jarvis (1827), 4 Bing. 66. 
 
 {q) Dixon v. Fawcus (1861), 30 L. J. Q. B. 137 ; Toplis v. Graw 
 <1839), 5 Bing. N. C. 636. 
 (r) Grylls v. Davis (1831), 2 B. & Ad. 516. 
 
60 EIGHTS AND DUTIES OF MASTEE AND SEEVANT. 
 
 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 thereby 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) Oolbourn v. Patmore (1834), 1 C. M. & R. 73 ; Of. B. v. Walter 
 (1799), 3 Esp. 21. But see the remarks of Lord Heeschell, C, iu 
 Palmer v. Wich Steamship Co., [1894] A. C. 318. 
 
(61) 
 
 CHAPTEE VI. 
 
 The Eights op the Mastee as a&ainst 
 Third Paeties. 
 
 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 
 servant be wiUing 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, p^r quod servitmm amisit. 
 Thus where an opera singer having contracted to sing 
 at a particular theatre during a certairi period was 
 
 it) Mborough v. Ayres (1870), L. R. 10 Eq. 367; Kussell on 
 Crimes, i. 480 ; Breay v. The Royal British Nurses Association (C. A.) 
 W. N. (1897), 63 ; Blackstonb, i. 428. 
 
 (u) Hawkins P. C. 400. 
 
62 BIGHTS OP MASTEE AS AGAINST THIED PAETIES. 
 
 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- 
 ful 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 
 engagement, he will render himself liable to an action 
 for damages at the suit of the master (y) . 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. — No 
 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 his failing to carry 
 out his part of the contract (a). 
 
 Again 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 (b). 
 
 {x) Lumley v. Gye (1853), 22 L. J. Q. B. 463. 
 
 ly) BlaJcev. Lanyon (1795), 6 T. R. 221; De Fraiice.sco v. Bamum 
 (1890), 63 L. T. 514 ; 6 L. T. R. 486. 
 
 {z) De Francesco v. Bamum, ubi supra ; Evans v. Walton (1867), 
 L. R. 2 C. P. 615 ; Broiim v. Hall (1881), 6 Q. B. D. 333. 
 
 (a) Bird v. Randall (1762), 3 Burr. 1345 ; 1 W. Bl. 372. 
 
 (6) i\ric/ioiv.ilfar«y?i(1799),2Esp.732. See Lord Kenyon's judgment. 
 
SEDUOTION. 63 
 
 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 vyrongdoer, and this although 
 the servant may have recovered damages for the same 
 assault, for the servant is thus compensated for 
 personal injury, whereas the master is remunerated for 
 the Iqss 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 ig) . 
 
 A servant may in like manner lawfully assault a 
 third person in defence of his master Qi) . 
 
 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 {h), or doing 
 some little household work on returning home at night 
 
 (c) Tickdl V. Read (1773), Lofft. 215. Lord Mansfield and note of 
 the learned reporter. 1 [d) Salk. 407. 
 
 (e) Ditcham v. Bmd (1884), 2 M. & S. 436 ; Hodl v. Hollaild&r (1825), 
 4 B. & C. 660 ; Hodscdl v. Stailyhrass (1840), 11 B. & E. 301 ; and see 
 the remarks of Tindal, C.J., in Grinnell v. Wells (1844), 7 M. & 
 G. 1042. (/) 9 & 10 Viet. u. 93. 
 
 (g) Osborn v. GUUtt (1873), 42 L. J. Ex. 53 (Bramwell, B., diss.) 
 
 (h) Leeward v. Basilee (1695), 1 Salk. 408. 
 
 (i) Fores v. Wilson (1791), 1 Peake, 55. 
 ^ (h) Carr v. aa/rke (1818), 2 Ohit. Rep. 260. 
 
64 EIGHTS OP MASTBE AS AGAINST THIEB PAETIBS. 
 
 after serving elsewhere all day {I), have 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 vdth 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 {n) 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 therefore ^rimd/acie 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 vsdll not lie (o). The daughter 
 need not be under age {p). 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 (r) . 
 
 (I) Rist V. Faux (1863), 32 L. J. Q. B. 386. 
 
 (m) Evoms v. Walton (1867), L. R. 2 C. P. 615 ; 36 L. J. C. P. 307. 
 
 (n) Terry v. Hutchinson (1868), L. R. 3 Q. B. 599 ; 37 L. J. Q. B. 257; 
 see also Maunder v. Venn (1829), M. & M. 323 : Jones v. Broum (1724), 
 1 Esp. 217. 
 
 (o) Ingerson v. Miller (1866), 47 Barb. 47 (Am. Cas.) 
 
 ip) Bennett v. Alcott (1787), 2 T. R. 166. 
 
 (g) Harper v. Lufkin (1827), 7 B. & C. 387. 
 
 (r) Fores v. Wilsmi (1791), 1 Peake, 77. See Lord EIenyon's judgment 
 
SEDXrOTION. 65 
 
 In awarding damages of this nature the chief con- 
 sideration placed before the jury is the injured feelings 
 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" is). An action may be brought not merely 
 by the parents, but also by any one in the relation of 
 master {f) , by a brother {u) , 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 (cZ) . 
 
 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. M'Kowl (1800), 3 Esp. 119. See also Grinndl v. Wdh 
 (1844), 7 M. & G. 1033 ; Andrews v. AsUy (1837), 8 C. & P. 7. 
 (t) Fores v. Wilson (1791), 1 Peake, 77. 
 [u] Howard v. Crowther (1841), 8M. & W. 601. 
 (x) Edmondson v. Machell (1787), 2 T. E. 4. 
 ly) Irwin v. Dearman (1809), 11 East, 23. 
 (z) Andrews v. Askey (1837), 8 C. & P. 7. 
 (a) HodsoU V. Taylor (1874), 43 L. J. Q. B. 14. 
 (6) Bamfield v. Massey (1808), 1 Camp. 460. 
 (c) Verrey v. WatUns (1836), 7 0. & P. 308. 
 id) Reddie v. Scott (1795), 1 Peake, 316. 
 
( 66 ) 
 
 CHAPTEE VII. 
 
 llaeilitt of the master for injury to his 
 Servant. 
 
 The common law principle. — ^By the common law 
 the relationship of master and servant does not impose 
 on the master a liability 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. Fowler (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 doubt 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) Priestley v. Fowler (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 emplo5anent, 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 (J), 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 coUaborateur 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 ig) . 
 
 Master liable if negligent. — A master therefore 
 becomes liable to his servant for injury if due to 
 the master's negligence. Such negligence may be 
 shown in several ways, as by — 
 
 1. Not supplying sound and suitable tackle. — It is 
 
 (/) WiUmi V. Merry (1868), L. K. 1 Sc. Ap. 326. 
 \g) Brydon v. Stewart (1885), 2 Macq. 30. 
 
68 LIABILITY OF MASTBE FOB INJURY TO HIS SERVANT. 
 
 incmnbent 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 Hability 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 vvdth an 
 unsound chain {!) ; injury caused by the falHng of a 
 defective door (m) . 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 under 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 impHes no 
 such undertaking on the part of the master (n) . 
 
 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) Patterson v. Wallace (1854), 1 Macq. 748. 
 
 («) Brydon v. Stewart (1855), 2 Macq. 30. 
 
 (Tc) Williams v. aough (1858), 27 L. J. Ex. 825. 
 
 (l) Murphy v. Phillips (1876), 35 L. T. 477. 
 
 (m) Griffiths v. London and St. Katherine's Dock Go. (1884), 
 19 Q. B. D. 259. See also Bynen v. Leach (1857), 26 L. J. Ex. 221 ; 
 Daries v. England (1864), 38 L. J. Q. B. 321. 
 
 (n) Kiley v. Baxendale (1861), 30 L. J. Ex. 87 ; Seymour v. Maddicks 
 (1851), 20 L. J. Q. B. 326. 
 
 (o) Hutchinson v. T. N. & B. Bail. Co. (1850), 19 L. J. Ex. 296 ; 
 Wigmorev. Jay (1850), 19 L. J, Ex. 300; Tarrant v. JfeSft (1856), 
 25 L. J. C. P. 261. 
 
MASTER WOBKING WITH SEEVANT. 69 
 
 the attention of his master to the fact, or he will be 
 unable 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 with him. 
 The only obligation upon him is to use proper diligence 
 and care in securing competent servants (g) . 
 
 3. Personally interferes or actually works with his 
 servant. — If the master personally interferes with or 
 directs the work he will be liable for injury occurring 
 to his servants 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 with his servant he 
 vnll be liable for injury occurring to the servant 
 through his (the master's) negligence. 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 vnU be unable to recover from 
 
 ip) SMpp V. Eastern Cowities Sail. Go. (1854), 23 L. J. Ex. 23 ; 
 9 Ex. 223 ; Saxton v. ffawkesworth (1872), 26 L. T. 851. 
 
 {q) Tarrant v. Webb (1856), 25 L. J. C. P. 261. 
 
 (r) Roberts v. Smith (1857), 26 L. J. Ex. 319 ; Ormond v. Holland 
 (1858), E. B. & E. 102. 
 
 («) Ashworth V. Btanidck (1861), 30 L. J. Q. B. 182; 4L. T. 85; 
 Mdlors r. Shaw (1861), 30 L. J. Q. B. 333. 
 
70 LIABILITY OP MASTER FOR INJURY TO HIS SERVANT. 
 
 his master for any injury arising therefrom. The 
 maxim Volenti non fit injuria applies. This is illus- 
 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 (m) 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 non fit 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 then have a right 
 of action against his master {z). 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 necessarily 
 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 
 
 (t) Griffiths Y. Gidlow (1858), 27 L. J. Ex. 405 ; 3 H. & N. 648. 
 
 (u) WoolUy V. Metrop. Mail. Co. (1877), 46 L. J. Ex. 521. 
 
 (a;) Senior v. Ward (1859), 28 L. J. Q. B. 139 ; 1 E. & E. 385. See 
 .also Alsop V. Yates (1858), 27 L. J. Ex. 156. 
 
 (y) Dynen v. Leach (1857), 26 L. J. Ex. 221 ; Pottsv. PlunJcett {1S59), 
 33 L. T. Ill ; Thomas v. Quartertnaine (1887), 18 Q. B. D. 685 ; 
 Yarmouth v. Prance (1887), 19 Q. B. D. 647. 
 
 (2) Bolmes v. Clarke (1862), 31 L. J. Ex. 356 ; 9 L. T. 178. 
 
 (a) Smith v. Baker (1891), App. Cases, 325. See also Johnson v. 
 Lindsay (1891), App. Cases, 371. 
 
CONTEIBUTOEY 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 one 
 of fact, and not of law. And this is so both at common 
 law and in cases arising under the Employers' Liability 
 Act, 1880 (6). 
 
 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 Eegulation 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),. 
 
 (6) 43 & 44 Vict. o. 42. 
 
 (c) Thrussdl v. Handydde (1888), 20 Q. B. D. 359. 
 
 (d) 41 & 42 Viet. c. 16 (1878) ; 46 & 47 Vict. o. 53 (1883) ; 54 & 55 
 Vict. 0. 75 (1891). 
 
 (e) 50 & 51 Vict. c. 58 (1887) ; 35 & 36 Vict. c. 77 (1872). 
 
 (/) Brittonv. Great Western Cotton Co. (1872), L. R. 7 Ex. 130; 
 ■Senior v. Ward (1859), 28 L. J. Q. B. 132. 
 
 (g) Grizzle v. Frost (1863), 3 T. & F. 623 ; though see contra Murphyr. 
 Smith (1865), 12 L. T. (N.s.) 605 ; also Lynch v. Nurdin (1841), 1 Q. B. 29. 
 
72 LIABILITY OP MASTEE FOE INJUEY TO HIS SERVANT. 
 
 2. The injury is caused by a fellow-serYant in 
 common employment. — This has been the law ever 
 since the case of Priestley v. Fowler Qi) was decided in 
 1837, where from the judgment of Lord Ahinger, C.B., 
 it has been assmned 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 aU the consequences 
 of negligence in a matter in which he is the 
 principal, is responsible for the negligence of all his 
 inferior agents. If the owner of the carriage is 
 therefore 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 neghgence of the coach- 
 maker, or for a defect in the harness arising from the 
 negligence of the harness-maker, or for drunkenness, 
 neglect or want of skiU 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 neghgence of the chambermaid, for putting him 
 into a damp bed ; for that of the upholsterer for sending 
 in a crazy bedstead, whereby he was made to fall 
 down while asleep and injure himself ; for the negh- 
 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 ; 
 
 (A) PrieatUy v. FowUr (1837), 3 M. & W. 1. 
 
INJURY BY FELLOW SEEVANT. 73 
 
 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 apphcation 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 hability the servant tried 
 to fix on his master for the accident which gave rise to 
 Friestley v. Fowler. This judgment of Lord Ahinger 
 is, however, of very great importance, for it no doubt 
 largely guided subsequent decisions, and made Priestley 
 V. Fowler the leading case on the subject. It was 
 followed in 1850 in Hutchinson v. The York, New- 
 castle and Berwick 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 
 travelling in one of their carriages in discharge of his 
 duty as their servant, the traia 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 traveJHng as a passenger for hire. The 
 reasons for this decision appear from the judgment of 
 the court delivered by Alder son, 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 feUow-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) HvicMnsan v. Yorh, N. and B. RaU. Co. (1850), 5 Ex. 343 j 
 19 L. J. Ex. 296. See also Wiffmore.Y. Jay (1850), 19 L. J. Ex. 300. 
 
74 LIABILITY OE' MASTER FOR INJURY TO HIS SERVANT. 
 
 servant when the servant injured was not at the time 
 of the injury acting in the service of his 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 Cramvorth, C, in the important 
 case of BartonshiU Coal Co. v. Beid (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. Fowler 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) Wigget v. Fox (1856), 11 Ex. 832 ; 25 L. J. Ex. 188. 
 
 ll) Donovan v. Laing, Wharton, dsc, Const. Synd., [1893] 1 Q. B. 629. 
 
 (m) BartonshUl Goal Co. v. Reid (1858), 3 Maoq. 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 coUaborateurs within the meaning of the 
 doctrine in question." 
 
 In another case {n) 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 hability attaches in that 
 case in the same manner as if the injured servant stood 
 in no such relation to him." There are numerous cases 
 
76 LIAEILITT OF MUSTEK I'OB ESTJURT TO HIS SERVANT. 
 
 which 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 by 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 liable 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 (g). 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 neghgence of one of the defendant's 
 workmen. The Court of Appeal {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. 
 
 (p) Vose V. Lancashire Rail. Go. (1858), 27 L. J. Ex. 249 ; 4 Jur. 
 (isr.s.)364. 
 
 iq) Warburton v. Great Western Mail. Go. (1867), 36 L. J. Ex. 9 : 
 15 L. T. 361. 
 
 (r) Swainson v. North-Eastem Rail. Go. (1878), 47 L. J. Q. B. 372. 
 
 (s) Johnson v. Lindsay, [1891] App. Cas. 371. 
 
VOIiTHSTTEEES, 77 
 
 of Appeal, holding that since the relation of master and 
 servant did not exist between the respondents and the 
 appellant, the doctrine of coUaborateur did not apply, 
 and the action was maintainable. The bearing of the 
 case of Wiggett t. 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 seyeral occasions since (t) . 
 
 If two vessels belonging to the same owner and same 
 line, frequenting the same river and port, come into 
 colhsion, 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 injury 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) . 
 
 Yolunteers. — ^If a person voluntarily assists a servant, 
 and whilst so doing is injured by the unauthorized 
 negligent 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 
 
 (<) Cameron v. Nystrom, [1893] App. Cas. 308 ; McOallum v. North 
 British IMail. Co. (1893), 20 Ct. of Sesa. Cas. 385 (So.); Hedley v. 
 Pinhru.y & Hons, [1894] App. Cas. 222. 
 
 (M) The Petrell,1893), 62 L. J. C. P. 92; P. 230. 
 
 tx) Wilson V. Merry (1868), L. R. 1 Sc. Ap. 326. 
 
 (V) Searle v. Lindsay (1862), 31 L. J. C. P. 106. 
 
 iz) Gallagher v. Piper (1864), 33 L. J. C. P. 329. 
 
 (a) O'Byme v. Bum (1854), 16 See. Ser. (Sc. Rep.) 1025. See also 
 Murphy v. Smith (1865), 12 L. T. 605 ; 19 C. B. [s.s.) 361 ; Feltham v. 
 Migland (1866), L. R. 2 Q. B. 33. 
 
7.8 LIABILITY OF MASTER FOE INJURY TO HIS SERVANT. 
 
 master (&) . In other words, a stranger by volunteering 
 his assistance cannot impose upon the master a greater 
 HabiHtythan 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 Employees' 
 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 Qi) . This Act does not, therefore, 
 finally dispose of the subject of common employment. 
 
 (6) Degg v. Midland Rail. Co. (1857), 26 L. J. Ex. 171. 
 
 (c) Potter V. Faulkner (1862), 31 L. J. Q. B. 30. 
 
 (d) Holmes v. North-Eastem Rail. Co. (1871), 40 L. J. Ex. 121 ; 
 Wright v. London and North- Western Rail. Co. (1875), 1 Q. B. D. 252. 
 
 (e) Batchelory. Fortescue (1883), 11 Q. B. D. 474. 
 
 (/) Vide Report of Select Committee of House oif Commons (1877) on 
 Employers' Liability. [g) 43 & 44 Vict. c. 42. 
 
 (h) 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), appHes, i.e., any labourer, 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 (1) 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' LiabiHty 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 repeahng it, will largely replace the Employers' 
 Liability Act. 
 
 The text of this new Act will he found in the Appendix. 
 
 (i) Griffith v. Earl Dudley (1882), 51 L. J. Q. B. 543. 
 {k) 38 & 39 Vtct. c. 90, s. 10. 
 
 (l) Morgan v. London General Omnibus Co. (1884), 13 Q. B. D. 832. 
 im) Bound v. Lawrence (1892), 61 L. J. M. C. 21 ; 56 J. P. 118. 
 {n) Hunt V. Great NortUm Rail. Co. (No. 1), [1891] 1 Q. B. 601 ;, 
 60 L. J. Q. B. 216. 
 
( 80 ) 
 
 CHAPTEE VIII. 
 
 Liability of the Master to Thied Parties foe 
 THE Touts 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 Boman Law of Qui facit per alium, facit per se. 
 But inasmuch as it is impossible in many instances for 
 a stranger to know 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 implicated 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 employment^ 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 
 by his servants in Lincoln's Inn Pields (o). A servant 
 having made a fire on his master's land, and neglecting 
 
 (o) Michael v. Akstree (1677), 2 Levinz. 172. 
 
TOETS 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 (g) . 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 {f) . 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 quahfied 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 hable. This was 
 clearly put by Littledale, J., in the case of Laugher v. 
 
 (») Turbevaiev. Stamp (1697), 1 Salk. 13. 
 Iq) Jone-i v. Ha/rt (1698), 2 Salk. 441. 
 (r) Bather v. Day (1863), 32 L. J. Ex. 171. 
 <«) Suzzey v. Field (1835), 2 C. M. & R. 432. 
 («) Whiteley v. Pepper (1877), 46 L. J. Q. B. 436. 
 («) Croft V. Alison (1821), 4 B. & Ad. 590. 
 (2!) Martin v. Temperley (1843), 4 Q. B. 298. 
 
82 LIABILITY OF MASTEE TO THIED PARTIES. 
 
 Fainter (y), when, he pointed out how the owner of a 
 ship is Hable for acts of the crew although appointed 
 by the master, the owner of a farm in hke manner for 
 the farm labourers hired by his baihff or hind, or a mine 
 owner {z) for the workmen 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 employing 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. Gurrie(Jb), "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 Srnithfield, and by the 
 
 (y) Laugher v. Pointer (1826), 5 B. & C. 554. 
 (a) Stone v. Gartwright (1795), 6 T. R. 411. 
 (a) Bush V. Steinman (1799), 1 B. & P. 404. 
 (6) Murray y. Ourrie (1871), 40 L. J. C. P. 26. 
 
WHEK COHTBACTQES KOT LIABMI. . 83 
 
 bye-laws a licence was necessary for such, employment. 
 The drover employed a boy to drive the buEock 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 
 employment, and was not the servant of the person, who 
 engaged him (c) . A. builder was not hable 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 {d) . Again,, a railway 
 company agreed with 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 witk a contractor, W., 
 for the laying of their main gas pipes in the streets of 
 Sheffield, though having no special power for that 
 purpose. The servants of W. left a heap of earth and 
 
 (c) MUligan v. Wedge (1840), 12 A.. & E. 737; 1 Q. B. 714. 
 
 (d) Sapson V. OuUtt (1842), 9 M. & W. 760. 
 
 (e) Reedie v. London and North-Western Sail. Co. (1849), 20 L. J. 
 Ex 65 ; 4 Ex. 244 ; see also Overton-^. Freeman (1852), 21 L. J. C. P. 52 ; 
 16 jur.'65 ; Foreman v. Mayor of Canterbury (1871), 40 L. J. Q, B. 138. 
 
84 LIABILITY OF MASTER TO THIRD PARTIES. 
 
 stones which had been thrown out of the trenches dug 
 for receiving the pipes in one of the streets. The 
 plaintiff, who in passing along, tumbled over it and was 
 injured, brought an action against the company and 
 was successful (/). 
 
 (b.) If the work to be 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) . 
 
 (o.) If the employer is under an obligation either by 
 statute, or by common law to do a thing efficiently. So 
 that where a railway company being empowered by an 
 Act of Parliament 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 (h) . 
 
 (d.) If the employer personally interferes with the 
 work. 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 
 
 (/) MUs V. Sheffield Gas Co. (1854), 53 L. J. Q. B. 45. 
 
 ig) Bower V. Peate (1876), 45 L. J. Q. B. 446; 1 Q. B. D. 321 ; see 
 also Ficlcard v. Smith (1861), 4 L. T. (n.s. ) 470 ; Tari-y v. Ashtoii (1876), 
 1 Q. B. D. 314. 
 
 (h) Hole V. Sittingbourne Hail. Co. (1861), 30 L. J. Ex. 81 ; see also 
 Gray v. Pullen (1865), 34 L. J. Q. B. 265. 
 
 (i) Burgess v. Gray (1845), 64 L. J. 0. P. 184 ; 6 C. B. 378. 
 
SEEVANTACTS CONTRABY TO OEDEES. 85 
 
 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 illustration of this. Here a master scavenger 
 was held liable for damages done by his horse and cart, 
 due to a passer-by bavin truck the horse whilst his 
 servant had left it unattended. And in a very recent 
 case {1} 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 
 
 (h) midge V. Goodwin (1S31), 1 C. & P. 190. 
 
 (l) Engelhart 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 drunk. 
 
86 LIABILITY 01' MASTER ID TSmi) EAETIES. 
 
 liable (m). An omnibus company is Tesponsible for 
 injuries arising from ibeir drivers acting recklessly zltoA 
 improperly, though in so doing they may be acting in 
 direct disobedience to the regulations of the company (n). 
 The principle on "which these decisions are based was 
 stated in the case of Fatten v. Bea (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 vfith 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 -w&j to dehver a parcel of bis 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 aJI these cases the master was 
 held hable. But the master was relieved of responsibihty 
 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 dehvering goods at Blackheath, 
 were ordered to bring back empty bottles to the of&ce at 
 the Minories, and on the way back after crossing 
 London Bridge, they went off in quite the opposite 
 
 (m) Croft V. Alison (1821), 4 B. & Ad. 590. 
 
 (re) LiTmpxis v. London General Omnibus Co. (1863), 32 L. J. Ex. 34 ; 
 Ward V. London General Omnibus Co. (1873), 42 L. J. C. P. 265. 
 
 (o) PaiUn v. Rea (1857), 26 L. J. C. P. 235. 
 
 (p) Jod V. Morison (1836), 6C. & P. 501. 
 
 iq) Sleath v. Wilson (1839), 9 C. & P. 612 ; see also the remarks of 
 Cbesswell, J., in Brawn v. Copley (1844), 7 M. & G. 566. 
 
 (r) Whatman v. Pearson (1858),, L. R. 3 C. P. 422. 
 
 (s) Mitchell v. Crasswdhr ,(1853), 13 C. B. 237. 
 
CEIMINAL ACTS OP SERYANT. 87 
 
 direction to tliat leading to the office, on some private 
 errand oi the clerk's, and whilst on this enterprise, ran 
 over a child (t). The distinction between this last case 
 and that of Jod v. Morison (p) is, to say the least of 
 it, a fine one. 
 
 A master as bailee for hire, is liable for the negUgence 
 of ids 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 
 accoxint, and whilst so doing caused the horses injury. 
 A master has even been held Uable for injury resulting 
 from the drunkenness of a servant not in his regular 
 employ, and engaged by his sister who was 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 (y). A sheriff has been held Hable 
 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 (6) ; 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 
 
 (t) Storey v. AsMon (1869), 38 L. J. Q. B. 223 ; 4 Q. B. 476. 
 
 (m) Goup4 Co. V. Maddick, [1891] 2 Q. B. 413. 
 
 {x) Wanstodl v. Poohy (1841), 6 CI. & Tin. 910 (»). 
 
 (y) Southern Y. Hem (l%l^),Cvo.3a,c.^1\.; Gf.JIern v. Mchols {1709), 
 1 Salk. 288. 
 
 {z) Ra/phad v. Goodman (1835), 8 B. & B. 565. 
 
 (a) Dunkley v. Ferris (1851), 11 C. B. 457. 
 
 (6) Smith V. Jforth Metropolitan Tramways Co. (1891), 55 J. P. 630 ; 
 7 T. L. B,. 459. 
 
 (c) Barwick v. English Joint Stock Bank (1867), 36 L. J. Ex. 147. 
 
8b 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 
 committed by his command {g), or if it be the necessary 
 consequence of something the master has ordered to be 
 done (h). 
 
 {d) Dyer v. Munday, [1895] 1 Q. B. 742. 
 
 (e) Wilson v. Ranldn (1865), 34 L. J. Q. B. 67. 
 
 (/) Richards v. West Middlesex Water Go. (1886), 15 Q. B. D. 660 ; 
 see also Povlton v. London and South-Westem Rail. Co. (1867), 36 L. J. 
 Q. B. 294. 
 
 (g) Morley v. Gaisford (1795), 2 H. Bl. 441. 
 
 (h) Gregory v. Piper (1829), 9 B. & C. 591 ; Lyons v. Martin (1838), 
 8 A. & E. 512. 
 
PROPRIETORS OF PUBLIC CONVEYANCE. 89 
 
 5. Liability of proprietors of public conveyances. — 
 
 The proprietors of public conveyances are 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 EHenborough, in Jackson v. Tollett {i), "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 {I) . 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) Mayhew v. Boyce (1816), 1 Stark. 423; Jachs<m\. Tolktt (1817), 
 2 Stark. 38 ; Hyeman v. Nye (1888), 6 Q. B. D. 635, Lindlby, J. 
 
 (k) Crofts V. Waterhouse (1825), 3 Biug. 321 ; Bedhead v. Midland 
 Mail. Co. (1869), 38 L. J. Q. B. 169 ; Cf. Manzoni v. Douglas (1880), 
 
 6 Q. B. D. 145. 
 
 (I) Richards v. London, Brighton, and South Coast Bail. Co. (1847), 
 
 7 C. B. Rep. 839. 
 
■90 LIABILITY OB" MASTER TO THIRD PARTIES. 
 
 within the scope of his employment in undertaking t"he 
 ■charge of it (m). 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 (w). 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 {p). 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 (g) . A carrier is not liable for the loss of 
 goods which have been entrusted to his servants to be 
 carried by them for their own private gain (r) . 
 
 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 {€} to 30Z. An innkeeper is 
 liable for larceny by his servant of a guest's property {u) . 
 
 Lodging-house keepers, on the other hand, are not 
 liable for thfe dishonesty of their servants, if there is no 
 
 (m) Bergheim v. South-Eastem Bail. Co. (1886), 17 Q. B. D. 215. 
 
 (m) Welch V. London and North- Western Rail. Co. { 1886), 34 W. R.. 166. 
 
 (o) Birkett v. Whitehaven Junction Rail. Co. (1859), 28 L. J. Ex. 348 ^ 
 Mytton V. Midland Rail. Co. (1859), 28 L. J. Ex. 385; Thomas v. 
 Rhynmey Rail. Co. (1871), 40 L. J. Q. B. 89. 
 
 (p) Wright v. Midland Rail. Go. (1873), 42 L. J. Ex. 89 ; 29 L. T. 436. 
 
 (?) Marshall^. York N. and B. Rail. Co. (1852), 21 L. J. C. P. 34. 
 
 (r) Butler v. Basing (1827), 2 C. & P. 613. 
 
 [s] Medawar t. Grand Hotd Co., [1891] 2 Q. B. 11 ; Huntly v. 
 Bedford Hotel Co. (1892), 56 J. P. 55. 
 
 {t) 26 & 27 Vict. 0. 41, s. 3. 
 
 (m) Kent V, Shuckard (1831), 2 B. & Ad. 803 ; Oppenheim v. White 
 Lion Hotel Co. (1871), 40 L. J. 0. P. 93. 
 
WHEN MASTEE 2gOT LIAIBLE. 91 
 
 misfeasance on their part {x). But it is aoubtful how 
 far a lodging house keeper is responsible for the negli- 
 gence of his servants. The court was equally divided 
 in the case of Dansey v. Bichardson (y), 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 (z) . 
 
 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 liable for the acts of his servants. 
 
 (a.) If servant act outside the scope of his authority, 
 and in so doing by his negHgence cause injury. It is 
 often a very nice question whether a servant is or is not 
 acting vTithin 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. Eacli case must be decided 
 
 {x) Solder v. Soidby (1860), 29 L. J. C. P. 246. 
 
 (y) Dansey v. EichiM-dsmi (1854), 23 iL. 3. Q. B. 21? ; 3 E. & B. 144. 
 
 (z) Mersey Docks and Harhowr BoairdY. Oihbs (1865), SSL. J. Ex. 225. 
 
92 LIABILITY OF MASTEE 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 (&) . 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) McKenzie v. McLeod (1834), 10 Bing. 385. 
 
 (6) Lyons v. Martin (1838), 8 A. & E. 512; Richards v. West 
 Middlesex Water Go. (1885), 15 Q. B. D. 660. 
 
 (c) Story V. Ashton (1869), L. R. 4 Q. B. 476 ; see also Mitchell v. 
 Grassweller (1853), 13 C. B. 237. 
 
 (d) Poidtonv. L. db S. W. B. Co. (1867), 36 L. J. Q. B. 294. 
 
 (e) Stevens v. Woodward (1881), 6 Q. B. D. 318 ; Cf. Ruddiman 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 ig). 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 Qi). 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 was in consequence arrested. The 
 company was not liable, for the matter was not within 
 the scope of the conductor's authority {i). 
 
 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 (k). 
 A travelling railway ticket examiner was acting within 
 the scope of his authority in giving into custody a 
 season ticket holder, for the passenger on bringing an 
 
 ( /) Wdsh V. L. & N. W. R. Co. (1886), 34 W. R. 166 ; Gf. Bergheim v. 
 S. E. JR. Co. (1886), 17 Q. B. D. 215. 
 
 (a) Martin v. Ward (1887), 0. & S. Gas. 814. 
 
 (A) Charleston v. London Tram. Co. (1888), 86 W. R. 367. Cf. 
 Furlong v. Soitth London Tram Go. (1885), 48 J. P. 322. 
 
 (i) Barry v. Dublin Tram. Co. (1890), 26 L. R. Ir. 150. 
 
 (k) Abrahams v. Leakin, [1891] 1 Q. B. 586 ; Cf. Sturm v. Hinshd- 
 wood (1891), 55 J. P. 341. 
 
94 LIABILITY OF MTASTEE TO THIRD PARTIES. 
 
 action for false imprisonment recovered SOL from the 
 railway company (Z). And Messrs. Spiers and Pond 
 have been held responsible for the act of the manager 
 of one of their 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 injured. The society owning the hall was held not 
 responsible, for it was not within the scope of the hall- 
 keeper's employment to take charge of the instru- 
 ments (n) . 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) Mullen V. Metropolitan Raa. Co. (1892), 8 T. L. B. 232 r see also 
 Lowe V. G. N. E. Co. (1893), 62 L. J. Q. B. 524. 
 (m) Ashton.v. Spiers ,i: Pond (1893), T. L. R. 606. 
 (») Neuwith v. Over Darwen Indmt. Soc. (1894), 63 L. J. Q, B. 290. 
 (o) London General Omnibus Co. v. Booth (1894), 63 L. J. Q. B. 244. 
 
WHEH MASTEH. HQT" LIABLE. 
 
 lioidEsler, W.B., in his jttdgmeirf, pointed out that the 
 doctrine of authority by necessity ia 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 {p). A fortiori, the master will not he hable if 
 the servant act maliciously without orders' from his 
 master. A. master, for example, was not responsible for 
 injury caused owing to his servant maliciously driving- 
 his carriage against another person's chaise (,g). 
 
 (b.) If the servant act illegally in doing what could 
 he 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 omit to use ordinary care. 
 The law on this point was explained by Lord Wensley- 
 dale in Bridge v. Grand Junction Hail. Co. (s), which 
 was an action brought by a passenger of one train 
 against the company owning another which had run 
 into collision with it. " The rule of law," he said, " is 
 laid down with perfect correctness in the case of 
 ButterfieldY. 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' 
 negligence, 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 (u) 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 negligence or improper conduct of the 
 
 (p) OwiUiam v. Tioist, [1895] 2 Q. B. 84 ; 59 J. P. 414. 
 
 (q) McManus v. Crichett (1800), 1 Bast. 106 ,' but see Chandler v. 
 Broughton (1832), 1 C. & M. 29. 
 
 (r) Dyer v. Munday, [1895] 1 Q. B. 742 ,- Mchards v. W. Mtd. Water 
 Co. (1885), 15 Q. B. D. 660; Wilson v. Hankin {1865), 34 L. J. Q. B. 62. 
 
 (s) Bridge v. Grand Junction Bail. Co. (1838), 3 M. & W. 244. 
 
 [t). Butterfield v. Forrester (1859), 11 Bast. 60; see also Davis, v.. 
 Mann (1842), 10 M. & W. 546. 
 
 (m) Tuffy. Warman (1858), 2Tt. J. C. R 322 ;^er Wightmaw, J. 
 
96 LIABILITY OP MASTEB TO ' THIRD PARTIES. 
 
 defendant, or whether the plaintiff himself so far 
 contrihuted 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 would 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 (y). 
 
 (e.) If the master has parted with the whole control 
 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 pilots 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. Golville in The 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 vsdll 
 ensue. " It has been established " he says " by a long 
 
 [x) McManus v. CricTcett (1800), 1 East. 106; Gf. Sharrod v. 
 L.&N. W.R. Go. (1849), 4 Ex. 580; Roe v. Birkenhead Rail. Go. 
 <1852), 21 L. J. Ex. 9. 
 
 (y) Ghandler v. Broughton (1832), 1 C. & M. 29. (z) See pp. 82—84. 
 
 (a) 56 & 57 Vict. u. 60, s. 633. 
 
 (6) Lucey v. Ingram (1840), 3 M. & W. 302. 
 
 (c) The Velasquez (1867), 36 L. J. Ad. \^ ; Hammond v. Rogers (1850), 
 7 Moore P. C. C. 160; The Lion (1869), 38 L. J. Ad. 57. ; The Earl of 
 Auddand (1861), 30 L. J. Ad. 124; Hanna (1867), 36 L. J. Ad. 1. 
 
StrPBEIOE FUBIilG OFPICEES. 91 
 
 cotirse of decisions that tO' entitle tke owner of a ghip 
 which is under the charge of a Hcensed pilots to the 
 benefit of the provisions of the Act which exempts them 
 from habihty when the colHsion. 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 (d) 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 no't 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 during 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 ig). 
 
 This principle does not apply to the private servants: 
 of such officers Qi). 
 
 (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 persom {i). 
 
 (d] 22 & 23 Vict. c. 123. 
 
 (■«) Martin v. Temperhi^ (1843), 4, Q., K 298. 
 
 (/); Lane v. Cotton (1701), Lord Raymond, 646; Whitfield v. Lord 
 Le Despencer (1778) Cowp. 754. 
 
 (g!)i Nicholson v. MouTiseyt emd Symes. (1812)^. la East., 384. 
 
 Ih) Lord North's ease (1858), Dyer 161. 
 
 (j> Mourlce. v. White Moss Colliery! Co. (1877), 46 L. J. C. F. 2S3^; 
 see also Donovan v. Laing-, [18931. I Q- B- 629 ; Johnson v. Lindsay, 
 [1891] A. C. 371 ; Cameron v. N%strom, [1893] A. C. 308. 
 
 M. k 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 (Z) . 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 liable for the injury (m) . This question was, 
 however, settled in a case (n) 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 negligence 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 
 
 (h) Dixon v. Renter's Telegraph Co. (1877), 46 L. J. Q. B. 197 ; 
 Playford-f. U. K. Elect. Co. (1869), 38 L. J.Q.B. 249 ; L.R.4 Q.B. 706. 
 
 (i) Sammell v. Wright (1805), 5 Exp. 263 ; see also Dean v. Braith- 
 waite (1803), 5 Exp. 36 ; Smith v. La-wrence (1828), 2 M. & W. 1. 
 
 (m) Laugher v. Pointer (1826), 5 B. & 0. 547. 
 
 (n) Quarman v. Burnett (1840), 6 M. & W. 499. 
 
WHO IS THE MASTEE. 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 Abinger, 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 postilhons 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. Giles (1835), 1 Mood. & Rob. 1. 
 
100 LIABILITY QP SCAflTEE TO THIED PARTIES. 
 
 that, the postilHona hasd 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 hable 
 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 Quannan v. Burnett was followed in 
 the more recent and analagous case of Jones v. Corpora- 
 tion of Liverpool (g). Here a contractor supphed 
 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. — k. master may be liable to two 
 actions by the same plaintiff for the same accident, e.g., 
 in the county court for damage to a vehicle, and in the 
 High Court for personsil injuries {t) . 
 
 Master no longer liable if the servant has been 
 convicted and compensation paid by him (tt) . 
 
 (p)i McLaughlin v. Pryor (1842), 4 M. & C. 48. 
 Cg) Jones v. Ocrrporatian of Liverpool (1885), 14 Q. B. D. 890. 
 M Wilson Y-. Twmmon (1845), 6 Scott, N. B. 904. 
 W WSsan V. Barfer (1833),, 4 B. & Ad. 616. 
 [t) Brunsden v. Humphreys (1884), 53 L. J. Ex. 476. 
 [u) Wright v. London Qeaeral Omnribus. Go. (1877), 46 L, J. Q. B. 429 ; 
 L. R. 2 Q. B. 271. 
 
< 101 ) 
 
 GHAPTEE IX, 
 
 Liability op the Master to Thied Parties fos 
 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 alium^facit per se, if, indeed, 
 the responsibihty of a principal for his agent did not 
 oxigiaate in and grow out of the older relationship of 
 master and servant. 
 
 Authority of senrant exprefis 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 vmting 
 or by parole, and the liability of the master will be 
 limited by the extent or scope of authority thus shown 
 to have been given. When the authority is given in 
 writing, little doubt or difficulty can occur in determining 
 the master's liability ; it is when given by word of 
 mouth that the uncertainty often occurs. When the 
 authority is only implied, the doubts or difficulties 
 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 responsibihty 
 (k) Buaiy v. Scarlett (ISOS), 5 Esp. 76. 
 
102 LIABILITY OP MASTEE TO THIBD PARTIES. 
 
 will in such case be equally undefined and uncertain. 
 This implied 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, 
 notvyithstanding 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 
 
 (2/) Nickson v. Brohan (1713), 10 Mod. 100. 
 
SCOPE OP IMPLIED AUTHOBITT. 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 habiHty of the master under these circum- 
 stances continues even after the discharge of the 
 servant, unless it can be shown that the tradesiaan 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 Bushy 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 Ellenhorough 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 Uable." And even where a 
 tradesman had supplied the defendant's family with 
 
 (z) Hazard v. Treadwdl{V122), 1 Stark. 506; Bolton v. HilUrsden 
 (1697), 1 Ld. Raym. 224; Sir Rob. Wayland's case (1708), 3 Salk. 234, 
 Holt, C.J. ; Rueby v. Sea/rlett (1803), 5 Esp. 76 ; Miller v. Hamilton 
 (1872), 5 C. & K. 433 ; Summers v. Soloman (1857), 7 E. & B. 879 ; Tohin 
 V. Crawford (1842), 9 M. & W. 718. 
 
 {a) Monk -v. Ctoyiora, quoted in iVJcfooJi v. 5rc>Aa» (1713), 10 Mod 110. 
 
 (6) Rusby V. Scarlett (1803), 5 Esp. 76. 
 
i'04 LIABILITY 05' MASTE;R TO THIED PARTIES. 
 
 bread, for which weeTdy Mils were d^liT^red to his 
 housekeeper, who ha^l charged for the payment of the 
 same m her acconnts, and the later bills had been 
 regularly paid and receipted, feat the earlier had not, 
 th:e defendant was held liable, for in the absence of 
 proof of the money liaving been giyeai to the housekeeper 
 to pay the later bills, the question of negligence on the 
 part of the baker in receipting the latei: and leaving the 
 earlier hills unpaid, could not be raised (e) . 
 
 Private agreement between master and serrant 
 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 dealing with the latter. This 
 point was raised in Precious v. A hel (d) , 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 Kenyan said 
 this was no defence to the action, unless 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 vdth 
 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 nsed in his master's carriage. It was then said (e) 
 feat if the coachman did not inform the plaintiff of the 
 agreem.ent between him and his master, the master's 
 sending him forth into the world wearing his hvery, to 
 hire horses which ie (the master) afterwards used, 
 
 ic) Millar Y. Hamilton (1832), 5 C. & P. 433. 
 
 (i) Precious v. AUl (1795), 1 Eep. 350. 
 
 (e) Rimdl v. Sampayo (1824), 1 -G. & P. 254, ptr LiTTiEasLE, J. 
 
SEEVANT'S 'WAEEjmTT. 105 
 
 kiaowing of whom they were hired, and yet not eending^ 
 to ascertain if his credit had "been pledged for them, an 
 implied authority was given, and the master was bound 
 to pay for the hire. The jury, however, came to the 
 conclusion that the plaintiff did know of the agreement, 
 and so found a verdict for the defendant. 
 
 Liability of master for serYant's warranty. — ^How 
 far a master is bound by a warranty given by his servant 
 when sent to sell something on liis behalf depends on 
 the nature of the master's business, the place of sale, 
 and the scope of employment of the servant. Ifj 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 Qi) 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 Qi). Or if, when 
 a servant is sent to receive payment for the article sold, 
 
 \f) Howard T. Sherrard (1867), 36 L. J. C. P. 42 j Btddrp v. Bates 
 (1885), 52 L. T, 620; Cf. Lord Kenyon in Fenn v. Samson (1790), 
 3 T. R. 760. 
 
 (a) Hdyearv. HawJee (1803), 5 Esp. 72. 
 
 <h) Brooks V. Hassall {18H3), 49 X. T. 669. 
 
 (i) Brady v. Todd (1861), 30 L. J. 0. P. 223. 
 
 (k) Woodin v. Bur/ord (1834), 2 Gr. & M. 391. 
 
106 LIABILITY OP MASTER TO THIRD PARTIES. 
 
 he consents to an alteration in the warranty, the master 
 will not be liable for the altered warranty (l) . 
 
 Examples of implied authority. — A tradesman is 
 bound by the contract of his foreman {)n), a company 
 by the orders of their manager (to), or by the acts of 
 their managing director (o) . Directors by the contract 
 of their secretary {p). Shareholders in a mine by 
 the contract of the purser {q) . A firm of traders may 
 be liable for the indorsement of a cheque by their 
 manager (r). If 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) Richardsonv. Cartwright (1844), 1 C. & K. 328. 
 
 'ra) Smith v. Mull Glass Co. (1852), 11 C. B. 847. 
 
 \o) Totterddlv. Fareham Brick and Tile Co. (1866), 35 L. J. C. P. 278 
 
 ip) Iladdickv. Marshall (1864). 17 C. B. (n.s.) 829. 
 
 Iq) Oeake v. Jackson (1867), 136 L. J. C. P. 108. 
 
 (r) Charles v. Blackwell (1876), 45 L. J. C. P. 542. 
 
 (s) Long v. iT'onie (1825), 1 C. & P. 610. 
 
 {t) WingMd v. Packington (1827), 2 C. & P. 599. 
 
 (u) Olive V. Eanies (1817), 2 Stark, 181. 
 
EXAMPLES OP IMPLIED AUTHOEITX. 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 (y)." For example, it has been held thai; 
 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 (&). 
 And a man. was once held liable for a guarantee by his 
 son, a minor, who had, in three or four instances, signed for 
 iis father, and had accepted bills of exchange for him (c) . 
 
 {x) Oingdl v. Glasscock (1831), 8 Bing. 86. 
 (y) Hern v. Nichols (1701), 1 Salk. 289. 
 {z) Barrett v. Deere (1828), Mood. & M. 200. 
 (a) Wilmott v. Smith (1829), Mood. & M. 238. 
 (6) Gregory v. Cotterell (1855), 5 E. & B. 571. 
 (c) Watkins v. Vince (1818), 2 Stark. 368. 
 
108 LIABILITY OF MASTER TO THIED PARTIES. 
 
 When master not liable. — It may be advantageous 
 here to endeavoxir to summarize briefly the conditioaB 
 under which the master is absolTed from responsibiEty 
 for the contracts made by his servant. 
 
 1. When the servant acts ieyond the Ivmits of his 
 authority. — Whether that authority be express or 
 implied. Where 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 
 Ellenborough, who observed, that we must give up 
 housekeeping if sucli 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 clotlies. The mistress refused to pay for the 
 latter, and the tailor failed in an action to recover their 
 value (g). If a servant, without his master's knowledge, 
 employ a tradesman his master has never employed 
 before, the master vsdll not be liable. For example, a 
 servant having broken his master's carriage, employed a 
 
 (d) Stubbing v. Hertz (1791'), 1 Peake, 66. 
 
 (e) Pearce v. Boyere (1800), 3 Esp. 214. 
 
 (/) Maunder v. C(myers (1817), 2 Staik. 281. 
 
 (g) Hunter v. Dowager Cmmtess of Jierkdey (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 aa 
 a lien, but the law would not allow him to do so, and 
 he was compelled to retinrn it to its rightful owner (h) . 
 If a man leaves his child with a servant, and gives that 
 servant money enough, for the supply of necessaries to 
 the child, th.e servant is not a general agent to provide 
 such things on his master's credit (i). 
 
 The baihff of a farm through whose hands all pay- 
 ments and receipts take place, has no impKed 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 imphed 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 ciccumstancea (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 
 knowing 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 course of his master's 
 business, e.g.^ the declaration of a pawnbroker's shop- 
 man with regard to plate received otherwise than in 
 
 Ih) Hiscox V. Greenwood (1803). 4 Eap. 174. 
 
 (i) Atkynsv. Pearce (1857), 26 L. J. C. P. 252; per CocKanBU, C.J. 
 
 Ik) Davidson V. Stanley (1841), 2 M. & G. 721. 
 
 {I) Cox V. Midland Counties Sail.. Co. (1849), 48 L. J. Ex. 65; 
 3 Exo 268 ; Cf. Hawtayne. v. Bourne (I84I), 7 M.. & W. 595. 
 
 Im) Walker v. G. W. R. Co. (1867), 36 L. J.. Ex. 123 j Lanyo«,.v. 
 G. W. Sail. Co. (1873), 30 L. T. 173; But Of. GwilUam v. Twist, [1895] 
 2 Q B 84. 
 
 (») Thomson v. Davenport (1829), 9 B. & C. 90 ; per Littlebalb, J. 
 
110 LIABILITY OF MASTEE TO THIRD PABTIES. 
 
 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 (g) . 
 
 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 it) . 
 
 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 railway company is not liable on a contract made 
 by their general manager regarding land {y) . 
 
 (o) Garth v Howard and Fleming (1832), 8 Bing. 451 ; Of. G. W. 
 Bail. Co. V. Willis (1865), 34 L. J. C. P. 195 ; 18 C. B. (n.s.) 748. 
 
 (p) Wagstaffv. Wilson (1832), 4 B. & Ad. 3.S9. 
 
 (e) Sanderson v. Bell (1834), 2 Cr. & M. 304. 
 
 (r) Ward v. Bvans (1704), 2 Salk. 442. 
 
 (,s) Kaye v. Brett (1850), 5 Exc. 269. 
 
 (t) Howard v. Chapman (1831), 4 C. & P. 508. 
 
 (u) Buttock V. Warr (1858), 31 L. T. 86. 
 
 {x) Noy's Max. 218, 9th ed. 
 
 (y) Wilson v. West Hartlepool Bail. Co. (1865), 34 L. J. Ch. 241 ; 
 11 L. T. (N.s.)327. 
 
WHEN SERVANT 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 YfiW 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 (vvho 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 his servant pledge 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 (6) . 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 ; 
 
 (z) Ward v. Evans (1704), 2 Salk. 442 ; Kaj/e v. Brett (1850), 5 Exc. 
 269 ; and see also Waters v. Brogden (1827), 1 Y. & J. 457 ; Thorold v. 
 Smith (1707), 11 Mod. 87. "Where a man has authority to receive 
 money, he cannot receive anything else." Holt, C.J. 
 
 (a) Henhd v. Pape (1871), 40 L. J. Ex. 15 ; Jordan v. Norton (1838), 
 4 M. & W. 155 ; Neile v. Turton (1827), 4 Bing. 149 ; Alexander v. 
 Mackenzie (1848), 6 C. B. 766. 
 
 (5) Qratland v. Freeman (1800), 3 Esp. 85 ; Cf. Summers v. Solomon 
 (1857), 7 E. & B. 879 ; 26 L. J. Q. B. 301. 
 
112 LIABILIT-? OP MASTBB fO THIED FAEIIBS. 
 
 but the onus lies irpon him to prove by positive evid'emce 
 that the servant has not duly aeco'vmted vsdth him (c). 
 
 If a long- time has elapsed since the last order waa 
 given by the servant, a presTimption of discharge ia 
 raised,, which should put the tradesman, on. hia 
 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 i Omnis tatihabitio 
 retrotrahitur et mandate priori equiparatur (/). But 
 the servant at the time of making the contract must 
 have purported to act on his, master's behalf (g). 
 Eatification by the master means the adoption of the 
 contract in its entirety;; he cannot reject part and! 
 adopt the rest (h) . 
 
 Mere user of the goods hy the master does not render 
 him liable, but it is sixong primd facie evidence against 
 him, and the onus will be on him to prove either that 
 credit was given to the servant, or that the servant had 
 no authority to pledge his credit (i) . 
 
 (c) Evcms V. Birch (18II), 3 Camp. 10. 
 
 {d) Staveley v. Uzzidli (1860), 1 F. & P. 284; v., Harrito 
 
 (1699), 12 Mod. 346. 
 
 (e) Blades v. Free (182&), 9 B. & C. 169. 
 
 (/)i Story on Agency, 239-; Bird v. Broion (1850), 4 Exo. 798. 
 
 (g) Wilson v. Tummon (1843), 6 M. & G. 236. 
 
 (h) Boltm V. Lambert (1889), 58 L. J. Ch. 425 ; Of. Ferguson v. 
 Taylm- (1829), 9 B. & C. 59. 
 
 (i) Pearee v. Rogers (1800), 3 Esp. 214. 
 
{113 ) 
 
 CHAPTEE X. 
 
 Liability of Masteb foe 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 (l). 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). 
 
 (i) E V. Higgins (1729), 2 Stra. 882. 
 {I) R. V. Williams (1851), 1 C. & K. 589. 
 (to) Beg. V. Parr (1841), 2 Moo. & R. 346. 
 (») S. V. Bleasdale (1848), 2 C. & K. 756. 
 (o) S. V. Almon (1770), 5 Burr. 2686. 
 
 M. & S. I 
 
114 LIABILITY OP MASTEE FOR CEIMH.S OP 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 (q) in 1843, which made it " com- 
 petent to such a defendant to prove that the publication 
 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 liabihty is distinguishable from that 
 of ordinary crime; it is more truthfully described as 
 penal, and might perhaps be termed quasi-criminaL 
 As Bayley, B., observed in the case of the Att.-Gen. v. 
 Siddon (s) : "I consider this as being not properly a 
 criminal proceeding, but a civil proceeding for the 
 purpose of recovering that which is a debt for the 
 Crown. It is a penal proceeding." This was a case 
 under the ReYenue Laws, which best illustrate this kind 
 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 servant 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 
 
 ip) E. V. Walter (1800), 3 Esp. 21 ; R. v. Gutch (1829), Moo. & Mai. 
 433, Lord Tentebdbn, C.J. 
 
 (g) 6 & 7 Vict. c. 96. 
 
 (r) Reg. v. Holhrooh (1879), 48 L. J. Q. B. 11 ; 4 Q. B. D. 42 ; see 
 Cooper V. Slade (1858), 6 H. L. C. 793 ; 27 L. J. Q. B. 449. 
 
 (s) Att.-Gen. v. Siddon (1830), 1 Cro. J. 220; see also Anon. Dyer, 
 2386; Lam 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 carrying 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 pubHcan 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 Uable to the 
 penalty the law imposes ; but he will be so Uable i£ 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) 35 & 36 Viot. c. 94, s. 16. , ^ ,, ^ „„ 
 
 {u) Mvllins V. Collms (1874), 43 L J M C. 110 ^„ . ^ ^ ., 
 
 (X) BesUy v. Davies (1876), 45 L. J. M 27 ; lO^Q. ^ ^ 84 ; 
 Me4<^e ^r.Mwane^ (1876), 1 Q.B. D. 89; Cundy v. UCocq, (1884), 13 
 O Ti D 207 
 
 (2/)' Somf-net t. SwH (1884), 12 Q. B. D. 360 ; Bond v. »ewm (1887), 
 
 21 O B D 249 
 ifi) 6 & 7 WiU. 4, c. 37, amending 36 Geo. 3, c. 22, and 37 Geo. 3 
 
 (a) R. V, Bixrni (1814), 3 M. & S. 11. 
 
116 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 (d). 
 
 Other Acts. — The same principle applies under the 
 Pharmacy Act, 1867 (e), the Pawnbrokers 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 (h). 
 The owner of a quarry was also held liable to be 
 indicted for a public nuisance caused by acts of his 
 
 (6) 38 & 39 Vict. c. 63. 
 
 (c) Brown v. Foot (1892), 61 L. J. M. C. 160. 
 
 (d) Newman v. Jones (1886), 17 Q. B. D. 132 ; Kearley v. Tonge. 
 (1891), 60 L. J. M. C. 159. 
 
 (e) 31 & 32 Vict. ^. 121, b. 17. 
 (/) 35 & 36 Vict. i;. 93, s. 8. 
 
 (g) 57 & 58 Vict. c. 57 (Consolidating Act), repealing and amending 
 Acts of 1878 and 1868. 
 
 (Ji) Nichols V. Hodl (1873), 42 L. J. M. C. 605; 28 L. T. 473; 21 
 W. R. 579. 
 
 (j) TurbevUle v. Stamp (1698), 1 Raym. 264. 
 
 (k) Reg. V. Medley (l^iZi), 6 C. & P. 292 ; Reg. v. G. N. R. Go. (1846), 
 9 Q. B. 315. 
 
NUISANCES. 117 
 
 workraen throwing slate and other refuse into a 
 navigable river, though done without his knowledge and 
 against his general orders (Z) . 
 
 With regard to smoke nuisance, a master has been 
 held hable under the Public Health Act, 1875 (m), for 
 his stoker's negligence in not seeing that the smoke of 
 his furnace was consumed {n). 
 
 (I) Reg. V. Stephen (1866), 1 Q. B. 702. 
 {m) 38 & 39 Vict. c. 55, s. 91, sub-s. (7). 
 
 (m) Niven v. Greaves (1890), 55 J. P. 548 ; but see Chisholm v. 
 Dmdton (1889), 22 Q. B. D. 736. 
 
( 118 > 
 
 CHAPTEE XI. 
 Liability of the Seevant to Third Peesqns. 
 
 Liability of servant for torts. — A servant is liable 
 for misfeasance, 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 ip), when he said : "A servant 
 or deputy quatenus 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"(^). 
 
 A servant is liable for conversion, and that even if 
 done solely for the master's benefit (g). 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 (r) . And similarly where a traveller received 
 
 (o) Lane v. Cotton (1701), 12 Mod. 488. 
 
 (p) Sands v. Child (1693), 3 Levinz, 352; Merryweaiher v. Nixon 
 (1799), 8 T. R. 186. 
 
 (e) Cany v. Webster (1716), 1 Stra. 480 ; Oreenway v. Fisher (1824), 
 1 C. & P. 190. 
 
 (r) Cranch v. White (1835), 1 Soott, 314 ; 1 Bing. N. C. 414. 
 
FEAUD. 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 vdll 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 liable. 
 If the fraud is committed by his master's orders, both 
 master and servant wiU be liable. As Lord Westbury 
 said in Gullen v. Thompson {s) : "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) Perldtis v. Smith (1752), Sayer, 40. 
 (t) Stephens v. Elwall (1815), 4 M. & S. 259., 
 
 (u) Mires v. Solebay (1678),2Mod. 242 ; Alexander v. Southey (1821), 
 .5 B. & Aid. 247 ; Lee v. Bayes (1856), 18 C. B. 607. 
 (x) Butler v. Basing (1827), 2 C. & P. §13. 
 ly) McManus v. Crichett (1800), 1 East, 106. 
 (z) Cidlen v. Thompson (1862), 6 L. T. (n.s.) 870. 
 
120 LIABILITY OF SEEVANT TO THIRD PEESONS. 
 
 directly concerned in the commission of fraud are 
 principals . . . for 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 (b) , the Postmaster-General is not liable for letters 
 which may be stolen, yet deputy-postmasters have been 
 held liable (c) . 
 
 Subsidiary 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 we have pre- 
 viously seen, when a servant is acting within the scope 
 of his employment, 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 party as would enable him equally 
 
 {a) Vide Chap. VIII., p. 97. 
 (6) Lane v. Cotton (1701), 12 Mod. 488. 
 
 (c) Sto(^h V. Harris (1771), 5 Burr. 2709 ; Bar7ies v. Foley (1768), 
 5 Burr, 2711. 
 
 id) Ashhy v. White (1703), LSalk. 19 ; 1 Sm. L. C. 227. 
 (e) Perring v. Harris (1836), 2 Moo. & Rob. 5. 
 (/) Barn/ v. Amaud (1839), 10 A. & E. 646. 
 
CONTEACTS. 121 
 
 with himself to judge as to the authority under which 
 he proposed to act — in all these cases the servant will 
 himself be liable ig). 
 
 The servant may also be Kable if he contract in his 
 own name, unless he add after ^er^ro., 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 Qi), 
 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 was held 
 that there was no privity between the clerk and the 
 chent ; 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 
 client ; 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 {h) . 
 
 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) Smovi v. Ebury (1842), 12 L. J. Ex, 357 ; 10 M. & W. 1 ; per- 
 Alderson, B. 
 (h) EddeuY. Read (1813), 3 Camp. 339. 
 \i) Stephens v. Badeock (1832), 3 B. & Ad. 354. 
 (h) Howell V. Bait (1833), 2 Nev. & Man. 381. 
 
122 LIABILITY OP SEEVANT TO THIED PBESONS. 
 
 paying the money to the servant in the first instance (Z). 
 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 liable to the person so 
 paying it by mistake. The mere paying of such money 
 into account without any new credit beiug taken, fresh 
 bills accepted, or further sum advanced for the raaster 
 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 misapplies 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 during 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) Cary v. Webster (1716), 1 Stra. 480. 
 (m) Buller v. Harrison (1771), Cowp. 565. 
 
 (n) Miller v. Aris C1801), 3 Esp. 231. See Lord Kenton's, judg- 
 ment. 
 
 (o) Snowdm v. Davis (1808), 1 Taimt. 859. 
 (p) Gary v. Webster (1716), 1 Stra. 480. 
 (q) Blades v. Free (1829), 9 B. & C. 167. 
 
( 123 ), 
 
 CHAPTEB Xn. 
 
 Criminal. Liability qe the Sekvaitt. 
 
 In relation to his master. — Witli 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, e. 31 r 24 & 2S Viot.. c. 100, s. 8. 
 (s) E. V. Gray (1722), 1 Stra. 485. 
 (t) Cormwall's cmt (1731). 2 Stra. 881., 
 
124 CBIMINAL LIABILITY OP 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 alsp 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 
 them 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 (u) ; 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 
 branch 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 
 
 (m) B. v. Robinson (1755), 2 East P. C. 565. 
 
 (x) 1 Leacli, 102 ; 2 Leach, 870, 943. 
 
 (y) Reg. v. Wright (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 comf actor 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 deUvered to his carter's servant to cart, 
 who allowed other persons to take away the cart and 
 
 (z) R. V. Hammm (1812), 4 Taunt. 304. 
 (a) R. V. Murray (1784), 1 Leach, 344. 
 (6) R. V. Bass (1782), 1 Leach, 251. 
 (c) R. V. Paradiee (1766), 2 East P. C. 565. 
 {d) Ohipchase's ease (1795), 2 East P. C. 567. 
 (e) R. V. Spears (1798), 2 East P. 0. 56 
 
126 CEIMINAIi LIABILITY -OF THE SERVANT. 
 
 dispose of the property for their nnitiial 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 nntil a special Act (t) 
 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. 
 
 (/) R. V. Harding (1807), Russ. & Ry. 125. 
 
 ig) B. V. £ull (1797), 2 Leaoh, 841. 
 
 (h) S. V. Bazeley (1799), 2 East P. C. 571 ; 2 Leach, 835. 
 
 (i) S. V. SuUens (1826), 1 Moo. C. C. 129. 
 
 (*) JR. V. Murray (1830), 5 C. & P. 146 n. 
 
 {I) 26 & 27 Vict. c. 103, s. 1 [1863]. 
 
 (m) i?. V. MorJU (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 Revision Act of 1861 {p) , 
 and the law regarding larceny and embezzlement by 
 servants laid down in the Larceny Act, 1861 (g). 
 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 hismaster or employer, or anypart thereof, 
 shall be deemed to have feloniously stolen the same from 
 his master or employer, although such chattel, money, 
 or security was not received into the possession of such 
 master or employer otherwise than by the actual posses- 
 sion of his clerk, servant, or other person so employed, 
 and being convicted thereof shall be liable at the 
 
 (ji) R. V. Bazdey (1799), 2 Leach, 835. 
 
 (o) 39 Geo. 3, c. 85. 
 
 (p) 24 & 25 Vict. ^^. 95. 
 
 \q) 24 & 25 Vict. c. 96, re-enaoting 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 (r) : — 
 
 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 versd. 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 Gur?iey's Act{u), 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 Ellenborough's judgment in R. v. Johnson (1815), 
 3 M. & S. 548. 
 
 (s) jReg. V. Thorpe (1858), 27 L. J. M. C. 264. 
 
 (0 Beg. V. Gorbitt (1857), 26 L. J. M. C. 49. 
 
 («) 31 & 32 Vict. c. 116, s. 2. 
 
 (x) Repealed and replaced by the Summary Jurisdiction Act, 1879 
 (42 & 43 Vict. c. 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 (6) , 
 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, was 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 Qb). And a person employed by an overseer to 
 
 (V) Baylby, J., in Williams v. Stott (1833), 1 Or. & M. 685. 
 (z) B. V. Hawtin (1836), 7 0. & P. 281 ; R. v. Mellish (1805), R. & 
 R. C. C. 80; R. v. Snowly (1830), 4 C. & P. 390. 
 (a) R. V. Smith (1823), R. & R. 267. 
 (&) R. V. Mellish (1805), R. & R. 80. 
 
 (c) iJ. V. Cttrj- (1811), R. & R. 198. r, ^ X 
 
 (d) R. V. Mdlish (1805), R. & R. 80; R. v. Beechey (1817), R. & R. 
 319. 
 
 (e) B. V. Spencer (1815), R. & R. 299. 
 (/) 2&3 Vict. 0. 93. 
 
 {g) Reg. v. Baxter (1851), 5 Ck)X C. C. 302. „ , . ^ 
 
 (h) Beg. v. Miller {1S50), 4 Cox, 166; and see B. v. Murphy, 4 Cox, 
 101. 
 
130 CEIMINAL LIABILITY OP 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 vdthin 
 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 (l).. 
 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 charge 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) Beg. v. Harris (1893), 69 L. T. 25 ; 57 J. P. 729. 
 ij) Williams v. Stott (1833), 1 Cr. & M. 685. 
 (k) R. V. WaUings (1824), 1 C. & P. 457. 
 {I) R. V. Leach (1821), 3 Stark. 70. 
 (m) R. V. Carr (1811), R. & R. 198. 
 
 (?i) R. V. Murray (1830), R. & M. 0. 0. 276 ; 5 C. & P. 146. 
 (o) R. V. Hall (1821), 3 Stark. 67 ; R. v. Tyree (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 (p) . 
 
 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 warrant, or at least call 
 in a constable (q) . 
 
 {p) S. V. Siggins (1801), 2 East, 5. 
 
 (q) Brown v. Chapman (1848), 6 0. B. 365 ; Davis v. Russell (1829), 
 5 Bing. 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 malice 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 aprimdfacie 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 Kenyan's decision in 
 Carol V. Bird (r), when he said, " By some old statutes 
 regulations were established regulating the characters 
 
 (r) Carol v. Bird (1800), 3 Bsp. 202. 
 
CHAEACTEE. 133 
 
 of labourers, but tbat 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 giye 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 prmleged 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. Though 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. 
 
134 CHABACTEB. 
 
 down in another case (t) that where a person intending 
 to hire a servant, appUes 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 
 officially, 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 nisiprius. 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 {u). 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 Buller, 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 as/afee, 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. 
 
 (t) Lowry v. Alcmhead (1768), Bull. N. P. 8. See also Hargrave v. 
 Le Breton, i Bur. 2425. 
 
 (m) Weatherstonv. HawTciTis (1786),1 T. R. 110; Sims v. Kinder {1824:), 
 1 C. & P. 279. {x) King 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", (y). 
 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 be more consistent with 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 primd 
 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 
 
 (y) Somermlle y. Hawkins (1851), 20 L. J. C. P. 133 ; 10 0. B. 583 ; 
 15Jur. 450. 
 (a) Taylorv.Hawkins(l851),20L.J.Q.B. 313; 16Q.B. 308; 15 Jur.74Qi 
 (t) Kelly V. Partington (1833), 4 B. & Ad. 700. 
 
136 CHAEACTEE. 
 
 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 raalice 
 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 Sogers 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 unable 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 
 
 (c) Sogers v. ai/tan (1803) 3 B. & P. 587. 
 
 {d) Pattison v. Janes (1828), 8 B. &C. 578 ; Fryerv. Kinnershy {ISM), 
 ■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. 
 
MALICE. 137 
 
 remarks of Bayley, J. in his judgment so clearly explain 
 the law that they are worth quoting at some length : — 
 " Generally speaking, anything said or written 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 
 bona 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 first 
 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 wiU 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 CHABACTEE. 
 
 into their consideration the fact of the defendant volun- 
 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 bond 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 vdth 
 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 bona 
 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) Fountain v. Boodle (1842), 3 Q. B. 5 ; 2 G. & D. 455. 
 
 (/•) GUpin V. Fowler (1854), 23 L. J. Ex. 152 ; 9 Ex. 615 ; 18 Jur. 292. 
 
SUMMAEY. 139 
 
 schoolmaster he had discharged and urging parents in 
 the most solemn manner not to send their children to a 
 school he had set np. 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 raaster 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 Qi) ; 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 {%) ; 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 
 privileged. — A master may be justified in answer to 
 
 (g) Rogers v. aifton (1803), 3 B. & P. 687. 
 (h) Pattison v. Jones (1828), 18 B. & C. 578. 
 (i) Kelly V. Partington (1833), 4 B. & Ad. 780. 
 (k) Fountain v. Boodle (1842), 3 Q. B. 5. 
 
140 CHARACTER. 
 
 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 (Z), which is worth some little attention, 
 for it shows how wide a privileged communication may 
 extend in matters of this hind, and how 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 plaintift) character wrote — 
 "Mrs. Affleck's compliments to Mrs. S., and is sorry 
 that in reply to her inquiries respecting B. 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 {Bayley 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. Farke, J., in his judgment, said 
 
 (I) Child V. Affleclcs et Ux (1829), 9 B. & C. 403 ; 4 M. & Ry. 388. 
 
SECOND-HAND INFOEMATION. 141 
 
 " The rule laid down by Lord Mansfield in Edmondsan 
 T. Stevenson (m), has 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 should he 
 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 Sogers v. 
 Clifton (n) evidence of the good conduct of the servant 
 was given, and the communication also appeared to be 
 officious. Here the letter was uniouhtedlj prima facie 
 privileged, the plaintiff, therefore, was bound to prove 
 express malice, in order to take away the privilege." 
 
 The fact of a master having given a servant a good 
 character does not preclude the communication of infor- 
 mation adverse to the servant which comes to the 
 knowledge of the master subsequently. This is well 
 illustrated by the case of Gardner v. Blade and 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) Edmumdsm v. Stevenson (1766), Bull. N. P. 8. 
 (n) Roqers v. Clifton (1803), 3 B. & P. 587. 
 
 (a) Gardners. Slade mid Wife (184% 13 Q.B, 796, 18 L. J.Q.B. 334; 
 €f. Sarris v. Thompson (1853), 13 O. B. 333. 
 
142 CHAEACTEE. 
 
 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 impugning his character, although uttered in 
 the presence of a third person, may, nevertheless, be a 
 privileged communication. This is illustrated by the 
 case of Toogoodv. Spyring (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 party, 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 
 
 D. that he was certain C. had broken into his cellar. 
 
 This statement was, on the contrary, not privileged. 
 
 (p) Manby-v. Wto(18S6),25 L.J. C.P. 294; 18 C.B. 544; 2 Jur. (N.a.)1004. 
 (q) Toogood v. Spyring (1834), 1 C. M. & B. 193 ; 3 L. J. Ex. 347. 
 
STATEMENTS BY THIRD PARTIES. 143 
 
 No action is maintainable for words spoken to a, 
 policeman on giving a servant in charge, or vfhen 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. Bush {t) . 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 pubHc 
 duty, was held to be privileged. During the trial counsel 
 propounded a legal canon which was adopted by the 
 court through Lord Campbell, G.J., to the effect that 
 " a communication made bond fide on any subject 
 matter in which the party communicating it has an 
 interest, or in reference to which he has a duty, is 
 
 {r) Johnson Y. Evans {ISOO), 3^5^.32^ 01/77 
 
 (s) Cockavne y.'jffodgkinson (1833), 5 C. & P. 543. See also Cowles v. 
 Fotts (1865) 34 L.' J. Q B. 247 ; 11 Jur. (n.s.) 946 ; 13 W. R. 858. 
 («) Barrisonv. £u.ih{lS56),25'L.J. Q.B. 25; 5E. &B. 344; IJur. (n.s.)846. 
 
144 CHARACTEE. 
 
 privileged, if made to a person having a corresponding 
 interest or duty, although it contains criminatory 
 matter, w^hich without this privilege v^ould 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 believed 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 own affairs 
 and in matters in which their own interest was 
 concerned (u). 
 
 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 nature 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 circumstances 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 
 
 (m) Hamon v. Falle (1879), L. R. 4 App. Cas. 247; P. C. 
 (x) Vicars v. Wilcoch (1806), 8 East 1 ; 2 Smith's L. C. 487 ; Kdlu v. 
 Partington (1833), 4 B. & Ad. 700. 
 
SPECIAL DAMAGE. 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 {y) . 
 
 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 Ellenborough 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 themselYes. — If no special 
 damage can be shown the words must be 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. 
 CaUing a bailiff a cozening knave (d), accusing a' ship- 
 
 (v) Knight v. Oibbs (1834), 1 A. & E. 43. 
 
 (z) Taylor v. Rowan (1835), 1 M. & R. 490; 7 C. & P. 70. 
 
 {a) Hurrdl v. Ellis (1845), 2 0. B. 295. 
 
 (6) Lynch v. Knight (1861), 9 Ho. L. 0. 577. , , ^ „ 
 
 (c) Vicars V. WUcochs (1806), 8 East, 1 ; 2 Smith's L. C. 487. 
 
 (d) Seaman v. Bigg (1638), Cro. Car. 480. 
 
146 CHAEACTEE. 
 
 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^er se actionable. 
 
 , GiYing 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 ig), and this although the recommendation is 
 given without malice or from pecuniary interest (Ji). 
 
 A schoolmaster who for the purpose of obtaining a 
 situation uttered a forged testimonial as to character, 
 knowingly and vnth intent to deceive, was con- 
 victed of a misdemeanor at common law {%). 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.,. 
 spinster," 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 
 
 (e) Irwin v. Brandwood (1864), 33 L. J. Ex. 257 ; 2 H. & C. 960. 
 ( /■) Foulger v. Newcomh (1867) 36 L. J. Ex. 169. 
 (<?) Wilkin V. Read (1854), 15 C. B. 192 ; 23 L. J. C. P. 193. 
 (A) Foster v. Charles (1830), 6 Bing. 396 ; 7 Bing. 105 ; 4 M. & P. 741. 
 (i) Reg. v. Sharman (1854), 23 L. J. M. C. 51 ; 6 Cox. 212; 18 Jur. 157. 
 m, Reg.. V. Moah (1858) 27 L. J. M, C. 204 ; 1 D. & B. 550 ; 4 Jur. 
 (N.s.)464. 
 
SERVANTS CHARACTEES 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 Blackburn, 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" (f). 
 
 Servants Characters Act, 1792. — The common law, 
 
 hovv^ever, 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, 
 
 (l) Fletcher v. Krell (1873), 42 L. J. Q. B. 65; 28 L, T. 105. 
 p?t) 32 Geo. 3, o. 56. 
 
 L 2 
 
148 CHARACTEE. 
 
 agent or servant of any such master or mistress, and 
 shall either personally or in writing give any false, 
 forged or comiterfeit 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 knov^ingly 
 and wilfully pretend or falsely assert in visiting 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 
 a,ny 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, when 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, division, city, liberty, town or place in 
 whicli he or she shall have been convicted, there to 
 remain and be kept to hard labour. 
 
 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 owq 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 courts of record at Westminster {n). 
 
 (n) Sections 7 and 9 are repealed, the former by 34 & 35 Vict, 
 c. 116 [S. L. R. 1871], the lattet by 47 & 48 Vict. c. 43. 
 
( 151) 
 
 CHAPTER XIV. 
 
 Apprenticeship. 
 
 Nature of apprenticeship. — Apprenticeship (from 
 apprevdre — 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 vdll 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 
 
 (6) JR. V. Arnesby (1820) 3 B. '& Aid. 584 
 (v) 5 EUz. c. 4. But see P. L. 0. July 24th, 1847, Art. 67. 
 (g) Mmkin v. Morris (1883), 12 Q. B. D. 352; 53 h. J. M. C. 72; 
 48 J. P. 344 ; 32 W. R. 661 ; Corn v. MattKms, [1893] 1 Q. B. 310. 
 
152 APPRENTICESHIP. 
 
 the apprentice should learn (r), and even a verbal 
 agreement may be binding (s) . 
 
 Historical. — Apprenticeship appears to have been 
 unknown to the ancients. The Boman 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 Eiirope 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 vyidely 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 
 Richard II. {t) ; and in the next reign it was enacted 
 that no one should put his child apprentice imless he 
 had 20s. per annum in land or rent(w). 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) E. V. Laindm (1797), 8 T. E. 379; E. v. Eainham (1801), 1 East, 
 531. 
 (s) E. V. Ightman (1836), 4 A. & E. 937. (0 12 Ric. 2, c. 4. 
 
 (m) 7 Hen. 4, u. 87 (1405). (a:) 5 Eliz., o. 4. 
 
HISTOBICAL 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 encouragenaent was 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 
 Kenyan 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) DoLBBN, J., in Hohhs v. Young (1690), 3 Mod. 317. 
 
 (z) Beynard v. Chase (1756), 1 Burr. Rep. 2. 
 
 {a) Smith v. Company of Armourers (1793), Peake's Cases, 148. 
 
154 APPEElvfTICESHIP. 
 
 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 political 
 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 (6) 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 
 
 (fc) Wealth of Nations. Book 1, Chap. X, part 2. 
 
HISTORICAL APPRENTICESHIP. 155 
 
 patrimony of a poor man lies in the strength and 
 dexterity of his hands, and to hinder him from employing 
 his strength and dexterity in what maimer 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 Hberty 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 impertiaent 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 European 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 life. 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 {cC) so far as it enacted that no 3)erson 
 should exercise any trade without having served a 
 seven years' apprenticeship. The City of Tjondon and 
 other corporations were, however, excepted, and it was 
 
 (c) Ipswich Tailors case (1615), 11 Co. 5i n. 
 {d) 54 Geo. 3, c. 96. . 
 
156' APPEENTICESHIP. 
 
 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 Conspiracy and 
 Protection of Property Act, 1875 (/). 
 
 Apprenticeship from being compulsory thus became 
 voluntary, and has steadily declined since. It is worth 
 noting, however, th.a,t, pari passu with the decline of 
 apprenticeship and the corporations associated with it,. 
 other combinations of those engaged in skilled 
 industries, trades and labour 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 exclusiveness 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, s. 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 
 aind 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 
 VTTong which might be done by the son to his master ; 
 therefore the father must be obliged 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 {h)." 
 
 Any one capable of making a contract can by the 
 ■common law take an apprentice. Even an infant may 
 do so {%). The apprentice may be of any age over 
 seven years {h) , except parish apprentices, who must 
 not be bound till they have attained nine years of age (Z) . 
 An alien trader by an Act of Henry VIII. (to) was 
 incapacitated from taking apprentices, but this was 
 repealed during the present reign {n) . 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 
 
 (a) 14 Car. 2, c, 12(1662) ; 3 W. & M. c. 11, s. 7. 
 
 (h) Whitley v. Lqftus (1724), 8 Mod. 190. 
 
 (i) Sex V. S. Fetrox, Dartmouth (1791), 4 T. E. 196. 
 
 {k) Reg. v. Saltern (1874), 1 Bott. 613. 
 
 {I) 56 Geo. 3, c. 139, s. 7. 
 
 (m) 14 & 15 Hen. 8, c. 2. 
 
 (n) 19 & 20 Vict. c. 64. 
 
 (o) 45 & 46 Vict. 0. 75, s. 7, sub-s. (2). 
 
158 APPEEHTICESHIP. 
 
 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 (r) . 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 (Q, but its 
 necessity was abolished in 1758 (u) , 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 solicitor, 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) BexY. S. Martins, Exeter (1835), 2A. &E. 655; BroohsY. Dawson 
 (1869), 33 J. P. 720. 
 
 (q) Eaton v. Western (1S82), 9 Q. B. D. 636; 52 L. J. Q. B. 41; 
 47 L. T. 593; 47 J. P. 196. 
 
 (r) Burnley Indust. Soc. v. Carson, [1890] 1 Q. B. 75 ; Cf. 
 3 & 4 Will. 4, 0. 63, s. 2. 
 
 (s) Cooper v. Simmons (1862), 31 L. J. M. C. 138 ; 5 L. T. 712 ; 7 H. 
 & N. 707 ; 10 W. R. 270 ; 8 Jur. (n.s.) 81. 
 
 («) 5 Eliz. 0. 4, a. 18. (u) 31 Geo. 2, o. 11, s. 1. 
 
 (x) 54 Geo. 3, c. 96, h. 2. (y) 54 & 55 Vict. o. 39, s. 25. 
 
THE CONTRACT. 159 
 
 not be retained eo nomine as an apprentice," said Lord 
 Kenyan, 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. Laindon (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 who engages to serve another 
 person generally." Even a verbal agreement may 
 constitute a vahd contract of apprenticeship (b) . 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 (d) . 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 vdth 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) Bex V. Rainham (1801), 1 East, 531. 
 {a) Rex V. Laindon (1797), 8 T. R. 379. 
 (h) Rex V. Ightman (1856), 4 A. & E. 937. 
 
 (c) R. V. Amesby (1820), 3 B. & Aid. 584. The Case of Chesterfield 
 (1697), 2 Salk, 479: 
 
 (d) 43 Eliz. c. 2, s. 3. Cf. S. Nicholas v. S. Botolph (1862), 31 L. J. 
 M. C. 258. 
 
 (e) E. V. Rvpcm (1808), 9 East, 295. 
 
 (/) R. V. longnor (1833), 4 B. & Ad. 647. 
 
160 APPRENTICESHIP. 
 
 master sign a counterpart to the agreement, but if he 
 •does it is evidence against him though the apprentice 
 has not executed it (g) . 
 
 A contract of apprenticeship is not complete unless 
 the master undertakes to teach Qi) 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 (i), " nothing to bind 
 the son to serve. . . . This vs^as no apprenticeship." 
 
 Term. — There is no fixed term of apprenticeship. 
 Under the statute of Elizabeth (k) the indenture was 
 for seven years at least, and if for a shorter term was 
 voidable at the election of the apprentice (Q ; 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 (n) , 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 (r). "Where, therefore, the 
 
 {g) Burleigh v. Stibbs (1793), 5 T. R. 465; MilUrsUp v. Brookes 
 (1860), 29 L. J. Ex. 369. 
 
 (Ji) Lees V. Whitcomb (1828), 5 Bing. 34. 
 
 (i) R. V. Cromford (1806), 8 East, 24 ; The Case of Chesterfield (1697), 
 2 Salk. 479. 
 
 (h) 8 Eliz. c. 4. 
 
 (I) Burnley v. Jennings (1806), 6 Esp. 8. 
 
 (m) 8. Nicholas v. S'. Peter (1737), 2 Bott. 493 ; Burr. S. C. 91 ; Gray 
 V. Ooohson (1812), 16 East, 13 ; Rex v. Everard (1777), 1 Bott. 638 ; Rex v. 
 Chalbery (1730), 1 Bott. 706. 
 
 (re) Rex V. Charles (1772), 2 Bott. 565. 
 
 (o) R. V. Cirencester (1724), 1 Stra. 579. 
 
 (p) S. Mary v. Radcliffe (1717), 1 Stra. 59. 
 
 (g) Reg. v BuHon (1863), 32 L. J. 11. C. 102. 
 
 (r) R. V. Baildon (1832), 3 B. & Ad. 427 ; R. v. Amersham (1836), 
 4 A. & E. 508. 
 
COVENANTS, 161 
 
 amount stated in the indenture was 20Z., and the 
 defendant gave an I. 0. U. for 20Z. 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 101. (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 101. (y) . 
 
 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- 
 lain the apprentice during the term agreed on by the 
 indentures (z) . 
 
 A parent or guardian who is party to the contract as 
 
 («) Westlake v. Adams (1858), 27 L. J. C. P. 27. 
 (t) R. V. Northoram (1740), 2 Stra. 1132 ; R. v. LeigUon (1792), 
 4 T. E. 732. 
 
 (j{) R. V. Rainham (1801), 1 East, 531. 
 
 (x) 54 & 55 Vict. c. 39, Schedule 1. 
 
 \y) 544 55 Vict. c. 39, s. 15. 
 
 (2) Wimtone v. Linn (1823), 1 B. & C. 460. 
 
162 APPBBNTICESHIP. 
 
 surety for the good conduct of the apprentice may be 
 sued by the master on the covenants. But if an infant 
 voluntarily 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 (b) . The misconduct of the apprentice is usually 
 no ground for discharge unless there is a proviso to that 
 effect (c) . Where, 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 apprentice 
 (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 vsdshed 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) Oylbert v. Fletcher (1629) Cro. Car. 179. 
 
 (b) Sex V. Hindringham (1796), 6 T. R. 557. 
 
 (c) Phillips V. Clift '(1850), 28 L. J. Ex. 153 ; 4 H. & N. 168 ; 
 5 Jur. (n.s.) 74. 
 
 {d) Learoyd v. Brooh, [1891] 1 Q. B. 431. 
 
 (e) Eaton v. Western (1882), 9 Q. B. D. 636 ; 52 L. J. Q. B. 41 
 47 L. T. 593 ; 47 J. P. 196 ; 31 W. R. 313 ; Royce v. Charlton, 
 8 Q. B. D. 1 ; 45 L. T. 712 ; 46 J. P. 197 ; 30 W, R. 274, overruled, 
 
 (r) De Francesco v. Bamum (1890), 45 Ch. D. 430. 
 
COVENANTS. 163 
 
 for necessary instruction duly provided stood upon the 
 same footing 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 ig) . 
 
 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 Qi), 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 {i) 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 
 
 (g) Walter v. Everard, [1891] 2 Q. B. 369. 
 
 (A) Seg. V. Lord (184:8), 17L. J. M. C. 181 ; 12 Q. B. 757; 12 Jur. 1001. 
 (i) Meakin v. Morris (1884), 12 Q. B. D. 352; 53 L. J. M. C. 72; 
 48 J. P. 344 ; 32 W. E. 661. 
 [k) Corn v. Matthews, [1893] 1 Q. B. 310. 
 
164 APPRENTICESHIP. 
 
 any employment he engaged in during the lock-out for 
 such reasonable time thereafter as might be necessary 
 for him to determine such emplo5Tnent, 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 (t), and Lord 
 Esher, M.E., 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 whole 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. Barnum{m), an apprenticeship 
 deed between an infant, her parent, and a teacher of 
 dancing was held void by F^-y, 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 find 
 employment for the 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." 
 
 [1) 38 & 39 Vict. c. 90. 
 
 (m) Be Francesco v. Barnum (1890), 45 Ch. D. 430 ; Cf. Leslie v. 
 Fitzpatrick (1877), 3 Q. B. D. 229 ; 47 L. J. M. 0. 22 ; 37 L. T. 461 ; and 
 Fellows V. Wood (1888), 59 L.T. 513, in neither of which, however, was 
 the agreement an apprenticeship deed strictly speaking. 
 
DISSOLUTION OP CONTRACT. 165 
 
 Dissolution oif the contract. — As with other contracts, 
 the contract of apprenticeship is dissolved by effluxion 
 of time, when the indenture belongs to the apprentice 
 to whona it should be given {n), or by mutual 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 {p) . 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 (g) . This is not affected by the 
 Employers and Workmen Act, 1875 (r) . 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 
 
 (ra) Reg. v. HinchUy (1863), 32 L. J. M. C. 158. 
 
 (o) R. V. Harburton (1786), 1 T. R. 139. See R. v. Wotton (1769), 
 1 Bott. 712; R. V. S. Luke's (1765), 1 Bott. 710. 
 
 {p) R. V. Wigston (1824), 3 B. & C. 484 ; 5 D. & R. 339. See judgment 
 of Abbott, C.J. 
 
 (q) Moore v. Smith (1875), 39 J. P. 772. Ex parte Daois (1794), 
 5 T. R. 716. Of. 5 Eliz. c. 4, s. 25. 
 
 {r) 38 & 39 Vict. c. 90. 
 
 (s) Wray v. West (1866), 15 L. T. (n.s.) 180 ; 30 J. P. 726. 
 
166 APPRENTICESHIP. 
 
 entitle the master to dissolve the contract if) . But at 
 common law the master has no right to put an end to 
 the contract in case of misconduct of the apprentice (u) . 
 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 office 
 hours, a master was held justified in discharging the 
 apprentice for misconducting himself and habitually 
 neglecting his duties (t/). Blackburn, J., in this case 
 observed, "I do not think it would be a fair construction 
 of this contract that a single 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 indenture (6) . 
 
 The death of apprentice or master puts an end to the 
 
 {i) Learoyd v. Brook, [1891] 1 Q. B. 431. But see Phillips v. Clift 
 (1859), 28 L. J. Ex. 153 ; 4 H. & N. 168 ; 5 Jur. (n.s.) 74. 
 
 [u] Winstone v. Linn (1823), 1 B. & C. 460 ; Philips v. Clift (1859), ' 
 28 L. J. Ex. 153 ; 4 H. & N. 168 ; 5 Jur. (N.s.) 74. 
 
 (£c) 20 Geo. II., c. 17. 
 
 (y) Westioick v. Theodor (1875), 44 L. J. Q. B. 120 ; 32 L. T. 696 ; 
 L. R. 10 Q. B. 224 ; 23 W. R. 620. 
 
 (z) Hughes v. Humphreys (1827), 6 B. & C. 620. 
 
 (a) Lewis v. Peachey (1862), 31 L. J. Ex. 496 ; 1 H. & 518 ; 10 
 W. B. 797 ; but see Maw v. Joiies (1890), 25 Q. B. D. 107. 
 
 (6) dray v. Coohson (1812), 16 East, 13. 
 
DISSOLUTION OP CONTEACT. 167 
 
 apprenticeship (c), unless there be a provision in the 
 Seed to the effect that the apprentice is bound to the 
 master's executors, in which case the apprentice is 
 obliged to continue with the executor (d) . 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 apprentice 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 ability to 
 perform his contract (h). 
 
 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 
 
 (c) Baxter v. BurfieU (1747), 12 Stra. 1266. 
 
 (d) Cooper v. Simmons (1862), 31 L. J. M. 0. 138; 5 L. T. 712; 7 
 H. & N. 707 ; 10 W. R. 270 ; 8 Jur. (if.s.) 81. See B. v. Peck (1698), 
 1 Salk. 65, Holt, C.J. 
 
 (e) Whineup v. Hughes (1871), 40 L. J. C. P. 104 ; L. R. 6 C. P. 78 ; 
 24 L. T. 76 ; 9 W. R. 183. 
 
 (f) Ferris v. Carr (1885), 54 L. J. Ch. 478. 
 ig) Humher v. Derby (1867), 15 L. T. 538. 
 
 (A) Boast V. mrth (1869), 38 L. J. 0. P. 1 ; L. R. 4 C. P. 1 ; 19 
 L. T. 264 ; 17 W. 29. Of. Taylor v. Caldwell (1863), 32 L. J. Q. B. 64 ; 
 'SB. &S. 826. 
 
168 APPEBNTICESHIP. 
 
 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 (I), whether the 
 apprenticeship may still exist if on a dissolution of 
 partnership one partner agrees to resign the apprentice 
 to the other. 
 
 The bankruptcy 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 inflicted on him. Such 
 fear would justify the apprentice in leaving his master {n) . 
 
 It may here be mentioned that the marriage of an 
 
 («■) BrooJc V. Dawson (1869), 33 J. P. 726. 
 
 (k) Baton v. Western (1882), 52 L. J. Q. B. 41 ; 9 Q. B. D. 636 ; 47 
 L. T. 593 ; 47 J. P. 196. 
 
 [1) Lloyd V. Blackburn (1842), 11 L. J. Ex. 210 ; 9 M. & W. 363 ; 
 1 Dowl. (N.s.)647. 
 
 (m) Bankruptcy Act (1883), 46 & 47 Vict. o. 52, s. 41. Of. Ex parte 
 Bandby (1745), 1 Atk. 149. 
 
 ()i) Halliwell v. Counsell (1878), 38 L. T. 176. 
 
EIGHTS AND DUTIES OF THE MASTER. 169 
 
 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 indenture 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 (g) . 
 
 Eights and Duties op the Parties. 
 
 The master. — The master has a right to the exclusive 
 service of his apprentice, and a right of action against 
 those who entice him away, detain, or harbour him (r). 
 But an indictment does not lie for enticing away an 
 apprentice (s) . The measure of damages for so enticing 
 away 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 
 Kenyan 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. Tardehigq (1754), Sayer, 100. 
 
 {p) Woodhouse v. Shapley (1742), 2 Atk. 535. 
 
 (q) Nash V. Armstrong (1861), 10 C. B. (n.s.) 259. Per Willis, J. 
 
 (»•) Lightly v. Clouston (1808), 1 Taunt. 112. 
 
 (s) Reg.Y. Daniel (1705), 6 Mod. 182. 
 
 (t) Gunter v. Astor (1819), 4 Moore, 12. 
 
 [u) R. V. Reynolds (1795), 6 T. R. 497. 
 
170 APPEENTICESHII". 
 
 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 hcence (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 
 
 {x) R. V. Edwards (1798), 7 T. R. 745. 
 
 (y) Barber v. Dennis (1704), 1 Sali. 68 ; 6 Mod. 69. ; S. v. St. 
 Nicholas (1736), Burr. S. C. 91. 
 
 (z) Bright^. Lucas (1797), 2 Peake, 121. 
 
 (a) Learoyd v. Broolc, [1891] 1 Q. B. 431. 
 
 (6) Wimtone v. Linn (1823), 1 B. & C. 460. 
 
 (c) Anon (1704), 6 Mod. 70. Per Lord Holt, C. J. 
 
 {d) Oylhert v. Fletcher (1629), Cro. Car. 179. Penn v. Ward (1835), 
 2 C. M. & R. 338. 
 
 (e) HaUiwell v. Counsdl (1878), 38 L. T. 176. 
 
 (/) Ellen V. Topp (1881), 20 L. J. Ex. 241 ; Lees v. Whitcomb (1828), 
 
 Bing. 34. 
 
EIGHTS AND DUTIES OF THE APPEENTICE. 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 hkely to be severely or permanently 
 injured, he renders himself liable to a penalty of 20L, 
 or imprisonment for a term not exceeding six months, 
 with or without hard labour (g) . 
 
 Whilst a master cannot assign his apprentice to 
 another person without his consent (h), yet if at any 
 time he has not in his 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 
 employment 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 {I) . The proper course for the apprentice 
 to pursue is to sue his master on the covenants. "Where 
 a master undertook to teach the three trades of 
 auctioneer, appraiser and comfactor in which he was 
 engaged, and afterwards, in consequence of giving up 
 that of comfactor, 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 appreiitice was 
 
 ig) 38 & 39 Vict. o. 86, a. 6. See B. v. -Smith (1837), 8 0. & P. 153. 
 (h) Coventry/ v. WoodhMl (1616), Hob. Rep. 134 ; Baxter v. Burfield 
 (174:7) 2 Stra. 1266. 
 
 (i) Smith V. Francis (1891), 66 J. P. 407. 
 (yfc) 22 & 23 Vict. 0. 133, s. 66, Bye-law 35. 
 (I) Lees V. WUtcomh (1828), 5 Bing. 34. 
 
172 APPRENTICESHIP. 
 
 justified in absenting himself (m). The apprentice is 
 also entitled to be taught the whole 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 ip). An apprentice at common law is entitled 
 primd 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 (g) . 
 
 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 (r) . 
 
 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) Ellen v. Topp (1851), 20 L. J. Ex. 241 ; 6 Ex. 424 ; 15 Jur. 451. 
 
 (11) Eaton V. Western (1882), 9 Q. B. D. 636 ; 52 L. J. Q. B. 41 ; 
 47 L. T. 593 ; 47 J. P. 196 ; 31 W. R. 313 ; Eoyce v. Charlton (1881), 
 8 Q. B. D. 1 ; 5 L. T. 712 ; 46 J. P. 197 ; 30 W. R. 274, overruled. 
 
 (o) Coventry v. Woodhall (1616), 1 Hob. Rep. 134. 
 
 (m) 38 & 39 Vict. c. 90, ss. 5, 6 (2). 
 
 (o) Couchman v. SUlar (1870), 22 L. T. 480. 
 
 (r) Patten v. Wood (1887), 51 J. P. 549. 
 
EMPLOYEES AND WORKMEN ACT, 1875. 173 
 
 trade. His master may call on him to assist in 
 instructing 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 obhged 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 
 application for cancellation of the indentures of appren- 
 ticeship and to direct the return of premium for refusal 
 to receive and instruct an apprentice {t), holding that 
 such relief could 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 coiitract {u). Chitty, J., deciding on 
 the authority of Gylhert 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 
 Tight to sue, and if there is no legal right to sue, which 
 appears to have been the undisputed law since Gylbert 
 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) Phillips V. Turner (1837), 4 CI. & F. 234. 
 
 {t) Webb V. £kgla-nd (1861), 30 L. J. Oh. 222 ; 3 L. T. 574 ; 7 Jur. (n.s.) 
 153 ; 29 Beav. 44, where see the remarks of Romilly, M.R. 
 
 (m) De Francesco v. Barnum (1889), 43 Ch. 165. Fellows v. Wood 
 (1888), 59 L. T. 513, distinguished. 
 
 (x) (1629)Cro. Car. 179. "All the court resolved that though an infant 
 may bind himself apprentice, and if he continues apprentice for seven 
 _years may have the benefit to use his trade, yet neitlier at the common 
 law nor by 5 Eliz. 4 shall the covenant or obligation of an infant for his 
 apprenticeship bind him." 
 
174 APPEENTICESHIP. 
 
 disputes between masters and their apprentices, and to 
 discharge or punish apprentices {y). 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 (1) 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 hmits 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 25Z. and to parish apprentices. 
 
 Employers' Liability Act, 1880. — All apprentices, 
 therefore, for whom a larger premium than 25^. has 
 been paid, do not come under the Act. As a corollary 
 
 (y) 5 Eliz. i;. 4, s. 28. (;) 38 & 39 Vict. c. 90. 
 
PARISH APPRENTICES. 175 
 
 to this all suet 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 neghgence 
 (section 1). 
 
 Eeformatory and Industrial Schools Acts. — By the 
 Beformatory Schools 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 Beformatory and Industrial Schools Act, 
 1891 (cZ) 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 valid 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. 
 
 Parish Apprentices. 
 The Act of Elizabeth.— That the Poor EeHef Act of 
 Elizabeth (e) 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 children until 
 of full age. By this and subsequent statutes (/) all 
 
 (a) 43 & 44 Vict. u. 42. 
 
 (6) 29 & 30 Viot. 0. 117, s. 19 
 
 (c) 29 & 30 Vict. 0. 118, s. 28. 
 
 (d) 54 & 55 Viot. c. 23, s. 1. 
 
 (e) (1601), 43Eliz. C.2, s. 3. 
 
 (/) 8 & 9 Will. 3, 0. 30, s, 5 ; 20 Geo. 3, c. 36. 
 
176 APPRENTICESHIP. 
 
 kinds of persons, even gentlemen of fortune and 
 clergymen, were held compellable to receive sucli 
 apprentices ig). 
 
 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 Qi). 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 2§th, 18$7. — The guardians 
 still have the power of so binding poor children (k) and 
 the consent of two justices is no longer required (Q. 
 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 
 
 (g) Reg. v. Goidd (1705), 1 Salk. 380. 
 (h) Chitty's "Apprentices." 
 (i) 7 & 8 Vict. c. 101, s. 13. 
 
 (Ic) This power is not restricted to the children of those who are 
 actually in receipt of relief aa paupers. 
 (Z) 7 & 8 Vict. c. 101, s. 12. 
 
PAEISH AEEEBNfELCJES. 177 
 
 earEying' an trade oe business ok bis- own, account,, or 
 wto is under- twenty-one; years, of age, or' to a married 
 woman (m). No premium other than clothing shall be 
 given, in case of. a-pprentiicee: ©.ver. siisteen years, of age. 
 The. premium shall conastinpartof clothes and in part 
 of: money, one moietj of which shall be paid, to the 
 master at the binding, and the residue at the end oi 
 the first year. 
 
 Th.e term of. apprenticeship shall no,t, exceed eight 
 
 No child abore fourteen years, of agp, shall be: bound 
 without his consent.. 
 
 No child under the age oi 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 cMId. under fourteen a medical 
 certificate is rec[uired 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 amd detail and with, evident sohcitude 
 for the child.' s future welfare in: ^r^c^e ZQ, by which 
 the master is. bound to^ teach the child the trade or 
 business, set: out' in the indenture^ and provide: him. with 
 food,, elottes, lodgings, and naexJieal attendance wken 
 required. The indenture is: to te executed, in duplicate 
 and signed by the appjentice,^ 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 
 indenture, it may be determanedi by the guardians, suad 
 
 (m) This may be doubted since the Married Women's ProgeEty Apt, 
 
 1882. ; 
 
 M. & s. 3sr 
 
178 APPRENTICESHIP. 
 
 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 
 apprenticeship 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 (r), 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). 
 
 InsolYency of master. — ^If a master, to whom a 
 premium of not more than 51. has been paid, become 
 
 («) 24 & 25 Vict. c. 100, a. 26. 
 
 (o) See the Merchant Shipping Act, 1894 (57 & 58 Vict. o. 60), 
 ss. 106, 107. 
 {p) R. V. Austrey (1758), Burr. S.O. 441. 
 (q) 32 Geo. 3, c. 57, s. 7 ; 56 Geo. 3, ^. 139, s. 9. 
 (r) E. V. Spreyton, 3 B. & Ad. 818. 
 (s) 22 Geo. 3, c. 46, s. 5. 
 («) 32 Geo. 3, u. 57, ss. 2, 3, 4, 9. 
 
PARISH APPEENTICES. 179 
 
 insolvent, or so reduced in circTimstances as to be unable 
 to employ or maintain bis apprentice, be may, on 
 application of tbe master be discbarged by two 
 justices {u). 
 
 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 the apprentice shall be sent by the guardians binding 
 to the guardians or overseers of the union or parish 
 where the master resides (y), 
 
 (m) 32 Geo. 3, c. 57, ss. 8, 9. 
 {x) 42 Geo. 3, c. 46. ss. 2, 3, 6. 
 (y) 14 & 15 Viot. c. 11, ss. 4, 5, 
 
 k2 
 
APPEJ^DIX OF STATUT^ES. 
 
 :PAGE 
 
 9 cfc 10 Vic.t. c. 93 (Fatal Accidents .Aci, 1846) 181 
 
 27 ct-.28 Vict. c. 95 {Fatal Aeoidents Ad, 18.64) 182 
 
 38 cfc 39 Vict. c. 86 (Goiispiracy and Protection Act, 1875) .168 
 
 38 & 39 Vict. c. 90 (Employers and Workmen Act, 1875)... 192 
 
 43 (fc 44 Vict. c. 42 (Employers' Liability. Act, .1880) ...... 199 
 
 60 (Ss 61 Fjci. c. 37 (Wiorhnen's .Compensation Act, 1897) 202 
 
 EATAL ACCIDENTS ACT, 1846 (Lord Campbell's Act). 
 (d & TO Vict. Cap. 93.) 
 
 An Act for Compensating the Families (ff Persons MUed iy Accidents. 
 
 [26t;ii August, 1846.] 
 .'['Pheamble.J 
 
 [IJ ^hen death is caused hy negligence an action shall Ee madn- 
 tainable.] Whensoever the death of a person shall 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 £ase the pejaon who wo.uId have been liable 
 if death had not ensued shall be liable to axi 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 le for the benefit of certain relations, and 'hrought hy 
 executor or administrator of deceased.'] Every such action shall be for 
 the benefit of the wife, husband, parent, and child of the person 
 whose .death shall have been so causetl, and shall be brought by and 
 in the name of the executor or administrator of the person deceased,; 
 and .in every such .action the jury may give such damages as tliey 
 may think proportioned to the injury resulting 'from such deatTi to 
 the parties respectively for whom and for whose benefit such action 
 shall be brought, 'and theamotint -so Teccyvered, after deducting the 
 
182 FATAL ACCIDENTS ACT, 1864 
 
 costs not recovered from the defendant, shall be divided amongst the 
 before-mentioned parties in such shares as the jury by their verdict 
 shall find and direct. 
 
 3. Action to he com/menced within year.] Provided always, that 
 not more than one action shall lie for and in respect of the same 
 subject matter of complaint ; and that every such action shall be 
 commenced within twelve calendar months after the death of such 
 deceased person. 
 
 4. Plaintiff to deliver particulars.'] In every such action the 
 plaintiff on the record shall be required, together with the declara- 
 tion, to deliver to the defendant or his attorney a full particular of 
 the person or persons for whom and on whose behalf such action 
 shall be brought, and of the nature of the claim in respect of which 
 damages shall be sought to be recovered. 
 
 5. Gonstruction of Act.] The following words and expressions are 
 intended to have the meanings hereby assigned to them respectively, 
 so far as such meanings are not excluded by the context or by the 
 nature of the subject matter ; that is to say, words 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 word "parent" shall include father and mother, and grand- 
 father and grandmother, and stepfather and stepmother ; and the 
 word " child " shall include son and daughter, and grandson and 
 granddaughter, and stepson and stepdaughter. 
 
 6. Act not to apply to Scotland.] [This Act shall come into opera- 
 tion from and immediately after the passing thereof, and] (a) nothing 
 therein contained shall apply to that part of the United Kingdom 
 called Scotland. 
 
 FATAL ACCIDENTS ACT, 1864. 
 
 (27 & 28 Vict. Cap. 95.) 
 
 An Act to amend the Act Ninth and Tenth Victoria, Chapter Ninety- 
 three, for Compensating the Families of Persons hilled by Accident. 
 
 [29th July, 1864.] 
 
 [Preamble recites 9 & 10 Viot. c. 93.] 
 
 1. Action may he brought hy the persons beneficially interested where 
 no executor, etc.] If and so often as it shall happen at any time or 
 times hereafter in any of the cases intended and provided for by the 
 
 (a) "Words in brackets repealed by 38 & 39 Vict. c. 66 (S. L. R.) 
 
(27 & 28 VICT. CAP. 96). 183. 
 
 said Act, that ttere shall be no executor or administrator of the 
 person deceased, or that there being such executor or 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 brought 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 court.] (Recital of 9 & 10 Vict. c. 93, s. 2). It 
 shall be sufficient, if the defendant is advised to pay money into 
 court, that he pay 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 
 jnry ; and if the said sum be not accepted, and an issue is taken by 
 the plaintiff as to its sufficiency, and the jury shall think the same 
 sufficient, the defendant shall be entitled to the verdict upon that 
 issue. 
 
 3. Gonstruction.] 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, a/ndfor other pv/rposes . 
 
 [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 
 
IBI CONSPIRAOTA'NBjEROTEDa'IDSr OP EROPERTT ACT 
 
 done, any act in 'contemiflsCliion or furtherance of a trade dispute 
 between employers and workmen, shall not be indiotsble as a 'con- 
 spiracy if such-act committed by one;person would not be punishable 
 as^a'crime. 
 
 Nothing in this section sha;]l' exempt from punishmertt any persons 
 guilty of a conspiracy for whicha punishment is awarded by any A.ct 
 of Parliament 
 
 Nothing in this section shall affect the law Telatiug to riot, 
 unlawful assembly, breach of the peace, or sedition, or any offence 
 against the State or the Sovereign. 
 
 A crime 'for the purposes of this section means an offence punish- 
 able on indictment, or an offence which is punishable on summary 
 conviction, and for the commission of which the offender is liable, 
 under the statute making the offence punishable, to be imprisoned 
 either absolutely or at the discretion of the court as an Eiltemativfi 
 for Bome other punishmertt. 
 
 Where a person is convicted o^ any such agreement or combination 
 as a!foresaid to do or procure to be done an adt 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. Brecwh gf contract iy persons employed in supply of gas. or water.'] 
 Where a person employed by a municipal authority or by 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 probablB conseqtiences of his so doing, 
 either alone or in combination with others, "vvill be to deprive the 
 inhabitants 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 summary jurisdiction or on indictment as 
 hereinafter mentioned, be liable either to pa,y 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 may be, 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 ca?ix;ompany .orcontractor make default 
 in complying with the provisions of this section in relation to such 
 notice as alforesaicl, theyor he shall incur on summary conviction a 
 penalty not exceeding five pounds.for' every day during which such 
 
(38 & 39 Ticir. cab. 86.) 183 
 
 default continues, and every person whoTmlawfully imjiures, defaces, 
 or icovers iip any notice so posted up as aforesaid in pursuajnroe of this 
 Act, shall be liable on summary conviction to apenaltynatieixceediaag 
 forty shillings. 
 
 5. Breach of contract involving injury to ^persons or property.} 
 Wbere any person wilfully and maliciously breaks a contract of 
 service or of hiring, loiowing or having reasonable cause to believe 
 tliat the probable consequences of his so doing, either alone or in. 
 combination with ofhers,, will be to endanger human life, or cause 
 serious bodily injury, or to expose valuable property, whether Teal or 
 persona], to destruction or serious injury, he shall on conviction 
 thereof 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. 
 
 Miscellaneous. 
 
 6. Penalty for neglect ly master to provide food, clothing, etc., for 
 servant or apprentice.} "Where amaster, being legally liable to provide 
 for his servant or apprentice necessary food, clothing, medical aid, or 
 lodging, wilfuUy and without lawful excuse refuses or Jiegleots to 
 provide the same, wherel)y the .he£dth of the servant or apprentice is 
 or isllkely to be seriously or permanently injured, lie shall on sum- 
 mary conviction be liable either to pay a .penalty not exceeding 
 twenty pounds, or to l>e imprisoned for a term not exceeding six 
 months, with or without hard labour. 
 
 7. Penalty for vatimidation or .annoyance hy miolenice or otkerwise.} 
 Every person who, with a view to compel any other person to 
 abstain from doing ox to do any act which such other person has a 
 legal right to do, or abstain inoni doing, wrongfully and without 
 legal authority, — 
 
 1. Uses violence to or intimidates such other person or his wife or 
 
 children, or inj;ures. his property ■; or 
 
 2. JPersietently follows such other person about from place to 
 
 place ; or 
 
 3. .Hides any tools, clothes, or j 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 iresides, or works, or carries on business, .or happenB to 
 be, or the approach to such house or place ; or 
 ■'5. Follows svich other person with two or more other persons in a 
 disorderly manner in or through any street or -road, 
 shall, on conviction thereof by a court of summaiy jurisdiction, 
 or on indictment as hereinafter mentioned, 'be liable either to 
 pa,y 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 thehonseor place where a person resides, or 
 works, or carries on business, or happens to -be, or fhe approach to 
 
186 CONSPIBACY AND PROTECTION OP PROPEETT ACT 
 
 such house or place, in order merely to obtain or communicate 
 information, shall not be deemed a watching or besetting within 
 the meaning of this section. 
 
 8. Reduction of penalties.'] Where in any Act relating to employers 
 or workmen a pecuniary penalty is imposed in respect of any 
 offence under such Act and no power is given [to reduce such 
 penalty, the justices or court having jurisdiction in respect of such 
 offence may, if they think it just so to do, impose by way of penalty 
 in respect of such offence any sum not less than one-fourth of the 
 penalty imposed by such Act. 
 
 Legal Proceedings . 
 
 9. Power for offender under this Act to he tried on indictment 
 and not by court of summary jurisdiction.] Where a person is accused 
 before a court of summary jurisdiction of any offence made punish- 
 able by this Act, and for which a penalty amounting to twenty 
 pounds, 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 
 offence, and not an offence punishable 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 
 prosecuted and recovered in manner provided by the Summary 
 Jurisdiction Act. 
 
 11. Regulations as to evidence.] Provided, that upon the hearing 
 and determining of any indictment or information under sections 
 four, five, and six of this Act, the respective parties 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 aggrieved 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 regulated by the 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 Act."] In this 
 Act, — 
 
 The expression " the Summary Jurisdiction Act " means the Act 
 of the session of the eleventh and twelfth years of the reign of Her 
 present Majesty, chapter forty-three, intituled "An Act to facilitate 
 the performance of the duties of justices of the peace out of sessions 
 within England and Wales with respect to summary convictions and 
 orders," inclusive of any Acts amending the same ; and 
 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 
 niore 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 London, 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 Municipal 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 supply the streets of any city, borough, town, or 
 
188 CONSPIEACy AND PROTECTION OF PEOPEETY ACT 
 
 place, or of any part thereof, witli gas, or wliioli is required by or in 
 pursuance of any general or local Act of Parliament to supply water 
 on demand to the inhahitanfe 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 company or conitractor upon w'hom is 
 imposed by Act of Parliament the duty of supplying sncli city, 
 borough, town, or place, or part thereof, -with gas or water. 
 
 15. " Maliciously " in this Act construed as in Malicious Injuries to 
 Property Acf] The word " maliciously " used in reference to any 
 offence under this Act shall be construed in the same manner as it 
 is required by the fifty-eighth section of the Act relating to malicious 
 injuries to property, that is to say, the Act of the session of the 
 twenty-fourth and twenty-fifth years of the reign of Her present 
 Majesty, chapter ninety-seven, to be construed in reference to any 
 offence committed under such last-mentioned Act. 
 
 Saving Clause. 
 
 16. Saving as to sea service.'] Nothing in this Act shall apply to 
 seamen or to apprentices to the sea service. 
 
 17. Repeal of Acts.] Ou 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, chapter thirty-two, 
 intituled " An Act to amend the Criminal Law relating to 
 violence, threats, and molestation " ; and 
 n. "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,) 
 
 (1.) Except so much of sections one and two of the Act 
 passed in the thirty-third year of the reign of 
 King George the Third, chapter fifty-five, intituled 
 " An Act to authorize justices of the peace to 
 impose fines upon constables, overseers, and other 
 peace or parish officers for neglect of duty, and on 
 .masters of apprentices for ill-usage of such their 
 apprentice ; and also to make provision for the 
 execution of warrants of distress granted by 
 magistrates," as relates to constables, overseers, 
 and other peace or parish officers ; and 
 (2.) Except so much of sections five and six of an Act 
 passed in the fifty-ninth year of tlie 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. GAP. 86). 189 
 
 tJae counties in wMdi. they actually are ; to make 
 provision for the execution of warrants of distress 
 granted by them; and to authorize them to 
 impose.- fines upon. constaMes and other officers 
 for neglect of duty, and on masters for ill-usage of 
 their apprentices,." as relates to constables and 
 other peace- or parish officers ;, and 
 
 (3.) Except the Act of the session of the fifth and sixth 
 years of the reign of Her present Majesty, chapter 
 seven^ intituled " An Act to explain the Acts for 
 th.e 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 wages 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 ton ching'dy vers orders for artificers, labourers, 
 servantes of husbandrye, and apprentices " ; and 
 
 (6.) SO' much of section two of an Act passed in the 
 twelfth year of King George the First, chapter 
 thirty-four, and. iiitituled "An Act to prevent 
 unlawful combination of workmen employed in 
 the WDoIlen manufactures, and for better payment 
 of their wages," as relates. to departing from service 
 and quittiiigor returning work.before it is finished ; 
 and 
 
 (a) 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 preservin.g the credit of the 
 said' manuf aotura at the foreign market ; " and 
 
 (d;}. An Act passed in the nineteenthyear of King George 
 the Thirds, chapter forty-nine, and intituled " An 
 Act to prevent abuses in the payment of wages to 
 persons employed in the bone and thread lace 
 manufactory;" amd 
 
 (a.); Sections eighteen and. twenty-three of an Act passed 
 in tihe srasion.of the third andi fourth years of Her 
 present Majesty, chapter ninety-one, intitled " An 
 Aet. fer the- more- effectual prevention of frauds 
 audi abuses eonmiittedi by weavers,, se-wers, and 
 other persons employed in the linen,, hempen, 
 
190 CONSPIRACY AND PROTECTION OF PROPERTY ACT 
 
 union, cotton, silk, and woollen manufactures in 
 Ireland, and for the better payment of their wages, 
 for one year, and from thence to the end of the 
 next session of Parliament ; " and 
 (/.) Section seventeen of an Act passed in the session of 
 the sixth and seventh years of Her present Majesty, 
 chapter forty, the title of "which begins with the 
 words "An Act to amend the Laws," and ends 
 with the words " workmen engaged therein ; " and 
 (g.) Section seven of an Act passed in the session of the 
 eighth and ninth years of Her present Majesty, 
 chapter one hundred and twenty-eight, and 
 intituled " An Act to make further regulations 
 respecting the tickets of work to be 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 pursuance of 
 the Employers and Workmen Act, 1875, and not other- 
 wise ; and 
 (2.) The repeal enacted by this section shall not affect — 
 
 (a.) Anything duly done or suffered, or any right or 
 liability acquired or incurred under any enactment 
 hereby repealed ; or 
 (6.) Any penalty, forfeiture, or punishment incurred in 
 respect of any oflfence committed against any 
 enactment hereby repealed ; or 
 (c.) Any investigation, legal proceeding, or remedy in 
 respect of any such right, liability, penalty, 
 forfeiture, or punishment as aforesaid ; and any 
 such investigation, legal proceeding, and remedy 
 may be carried on as if this Act had not passed. 
 
 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 expression "municipal authority" means the town 
 council of any royal or parliamentary burgh, or the 
 commissioners of police of any burgh, town, or populous 
 place under the provisions of the General Police and 
 Improvement (Scotland) Act, 1862, or any local authority 
 under the provisions of the Public Health (Scotland) Act, 
 1867: 
 
 (2.) The expression " The Summary Jurisdiction Act " means the 
 Summary Procedure Act, 1864, and any Acts amending the 
 
(38 & 39 VICT. CAP. 86). 191 
 
 (3.) The expression "the court of summary jurisdiction" means 
 the sheriff of the county or any one of his substitutes. 
 
 19. [Recovery of penalties, etc., in Scotland.] In Scotland the 
 following provisions shall have effect 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 
 the Lord Advocate, or of the Procurator Fiscal of the 
 sheriff court : 
 
 (2.) The proceedings may be on indictment in the Court of 
 Justiciary in Edinburgh or on circuit or in a sheriff court, 
 or may be taken summarily in the sheriff court under the 
 provisions of the Summary Procedure Act, 1864 : 
 
 (3.) Every person found liable on conviction to pay any penalty 
 under this Act shall be liable, in default of payment within 
 a time to be fixed in the conviction, to be imprisoned for a 
 term, to be also fixed therein, not exceeding two months, or 
 until such penalty shall be sooner paid, and the conviction 
 and warrant may be in the form of No. 3 of Schedule K. 
 of the Summary Procedure Act, 1864 : 
 
 (4.) In Scotland all penalties imposed in pursuance of this Act 
 shall be paid to the clerk of the court imposing them, and 
 shall by him be accounted for and paid to the Queen's 
 and Lord Treasurer's Remembrancer, and be carried to the 
 Consolidated Fund. 
 
 20. Appeal in Scotland, as prescribed by 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 
 Justiciary, or where there are no circuit courts to the High Court of 
 Jvisticiary at Edinburgh, in the manner prescribed by and under the 
 rules, limitations, conditions, and restrictions contained in the Act 
 passed in the twentieth year of the reign of His Majesty King 
 George the Second, chapter forty-three, in regard to appeals to 
 circuit courts in matters criminal, as the same may be altered or 
 amended by any Acts of Parliament for the time being in force. 
 
 Application of Act to Ireland. 
 
 21. Application to Ireland.] This Act shall extend to Ireland, 
 with the modifications 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 : . . i. . , , i, i 
 
 The expression " court of summary juiisdiction ' shall be con- 
 strued to mean any justice or justices of the peace, or other 
 
192 EMPLOYEES AMD WOSKMEW A.C.T, 1875 
 
 magistrate to. whom! juTisdiictioii is givear by thB Skanraairy 
 Jurisdiction Act r 
 
 The court of summary jurisdiction, when hearing and determining 
 complaints under this Act, shall in the police district ot 
 Dublin metropolis be constituted of one or more' of the 
 divisional' justices of the said district, and elfee where in Ireland 
 of two or justices of the peace in petty sessions sittiiig at a 
 place appointed for holding' petty sessions :- 
 
 The erpression " municipal aufliority" 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 yeais of the 
 reign of Her present Majesty, chapter one Mtndred and eight, 
 entitled' " An Act for- the Begul'atioa of Municipal Corpora- 
 tions in Ireland',"' and any conxmissioners invested by any 
 general' or I'ocaU Act of Parliament, with power- of '-improving, 
 cleansing^, lighting,- or paving any town or township: 
 
 EMPLOYEES ANT> WOKKIIEN' ACT, 1815. 
 
 (38&3gTiCT; Cap-. 90:) 
 
 Aki Act to enh/rgp the powers, of County Courts irv respect of disputes 
 between Employers and Workmen, and.to gwe. other Gaurts a limited 
 civil jurisdiction in respect of such disputes. 
 
 [13th August,, IBTSJ 
 
 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.Parliamentassembladjjand by theauthojsity 
 of the: same,, as. follows : 
 
 Prelianihary. 
 
 1. Short Kffe] This Act may be cited as the Employers and 
 Workmen Act, 1875. 
 
 2. Commencement of Act.] This Act, except so far 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-five. 
 
 Paht L 
 
 lurisdiclibn — Turisdicfion of County Court. 
 
 3. Power of co.unty court as to ordering of payment of money, set-off, 
 and rescission of contraot and taking' secwrity.l In any proceeding 
 'feefore a co-unty court in relation to any dispute between an employer 
 
(38 & 39 VICT. CAP. 90), 193 
 
 and a workinan 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 aU or any of the following powers j 
 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 he subsisting, whether such claims are 
 liquidated or unliquidated, 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 the payment of wages or damages, or other sums due, 
 as it thinks just ; and, 
 (3.) Where the court might otherwise award damages for any 
 breach of contract it may, if the defendant be willing to 
 give security to the 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 between employers and work- 
 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, shaU be 
 deemed to be a court of civil jurisdiction, and in a proceeding in 
 relation to any such dispute the court may order payment of any 
 sum which it may find to be due as wages, or damages, or otherwise, 
 and may exercise aU or any of the powers by this Act conferred on 
 
 . M. & s. 
 
194 EMPLOYEES 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 claimed 
 
 exceeds ten pounds ; and 
 (2.) Shall not make an order for the payment of any sum exceeding 
 ten pounds, exclusive of the costs incurred in the case ; 
 and 
 (3.) Shall not require security to an amount exceeding ten pounds 
 from any defendant or his surety or sureties. 
 
 5. Jurisdiction of justices in disputes between masters and apprentices.^ 
 Any dispute betvi^een an apprentice to whom this Act applies and 
 his master, arising out of, or incidental to their relation as such 
 (which dispute is hereinafter referred to as a dispute under this 
 Act), may be heard and determined by a court of summary 
 jurisdiction. 
 
 6. Powers of jiistices in respect of apprentices.^ 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 workrnan, and the msister were the employer and 
 the apprentice the workman, and the instrument of apprenticeship 
 a contract between an employer and a workman, and shall also have 
 the following powers : 
 
 (1.) It may make an order directing the apprentice to perform his 
 
 duties under the apprenticeship ; and 
 (2.) If it rescinds the instrument of apprenticeship it may, if it 
 thinks it just so to do, order the whole or any part of the 
 premium paid on the binding of the apprentice to be repaid. 
 Where an order is made directing an apprentice to perform his duties 
 uuder the apprenticeship, the court may, from time to time, if 
 satisfied after the expiration of not less than one month from the 
 date of the order that the apprentice has failed to comply there- 
 with, order him to be imprisoned for a period not exceeding fourteen 
 days. 
 
 7. Order against surety of apprentice, and power to friend of apprentice 
 to give security.'] In a proceeding before a court of summary jurisdic- 
 tion in relation to a dispute under this Act between a master and an 
 apprentice, if there is any person liable, under the instrument of 
 apprenticeship, for the good conduct of the apprentice, that person 
 may, if the court so direct, be summoned in like manner as if he 
 were the defendant in such proceeding to attend on the hearing of 
 the proceeding, and the court may, in addition to, or in 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 apprenticeship to an amount not exceeding 
 the limit (if any) to which he is liable under the instrument of 
 apprenticeship. 
 
(38 & 39 VICT. CAP. 90). 195 
 
 The court may, if the person so summonecl, or any other person, is 
 willing to give security to the satisfaction of the court fur ihe 
 performance by the apprentice of his contract of apprenticeship, 
 accept such security instead of or in mitigation of any punishment 
 which it is authorized to inflict upon the apprentice. 
 
 Part II. 
 Procedure. 
 
 8. Mode of giving security^ A person may give security 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 which and the sum for 
 which he is bound, in such manner and form as may be prescribed 
 by any rule for the time being in force, and in any case where 
 security is so given, the court in or under the direction of which it 
 is given may order payment of any sum which may become due in 
 pursuance of such security. 
 
 The Lord Chancellor may at any time after the passing of this 
 Act, and from time to time make, and when made rescind, alter, 
 and add to, rules with respect to giving security under this Act. 
 
 9. Summary proceedings.'] 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, but 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 apprehending 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 summary 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 an 
 execution issued by a county court. 
 
 A court of summary jurisdiction may direct any sum of money, 
 for the payment of which it makes an order under this Act, to be 
 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 Act, shall be deemed to be 
 a debt due from him in pursuance of a judgment of a competent 
 court within the meaning of the fifth section of the Debtors Act, 
 1869, and may be enforced accordingly ; and as regards any such 
 
 o2 
 
196 EMPLOYERS AND WORKMEN ACT, 1875 
 
 debt a court of summary jurisdiction shall be deemed to be a court 
 within tlie meaning of the said section. 
 
 The Lord Chancellor may at any time after the passing of this 
 Act, and from time to time make, and when made, rescind, alter, 
 and add to, rules for carrying into effect the jurisdiction by this Act 
 given to a court of summary jurisdiction, and in particular for the 
 purpose of regulating the costs of any proceedings in a court of 
 summary jurisdiction, 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 jurisdiction under the said fifth section of the Debtors 
 Act, 1869, shall be deemed to be prescribed rules within the meaning 
 of the said section. 
 
 Part III. 
 Definitions and Miscellaneous. 
 
 10. Definitions: " worhnian : " The Summary Jurisdiction Act."'] 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, journeyman, artificer, handicraftsman, 
 miner, or otherwise engaged in manual labour, whether under the age 
 of twenty-one years or above 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, chapter forty-three, intituled " An Act to facilitate 
 the performance of the duties of justices of the peace out of sessions 
 within England and Wales with respect to summary convictions and 
 orders," inclusive of any Acts amending the same. 
 
 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 : 
 
(38 & 39 VICT. CAP. 90). 197 
 
 Provided that, as respects any case witliiii tlie 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 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. 
 
 11. Set off in case of factory worJcers.} In the case of a child, 
 young person, or woman subject to the provisions 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. 
 
 Application. 
 
 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 by this Act upon whose binding either no 
 premium is paid, or the premiun (if an}') 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 
 apprentices. 
 
 This Act shall not apply to seamen or to apprentices to the sea 
 service. 
 
 Part IV. 
 Application of Act to Scotland. 
 
 14. Application to Scotland. Definitions.] This Act shall extend to 
 Scotland, with the moditications 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 court of summary jurisdiction " means the 
 
 small debt court of the sheriff of the county : 
 The expression " sheriff " includes sheriff substitute : _ 
 The expression " instrument of apprenticeship" means indenture: 
 
198 EMPLOYEES AND WORKMEN ACT, 1875 
 
 The expre?sion " plaintiff " or " complainant " means pursuer or 
 
 complainer : 
 The expression " defendant " includes defender or respondent ; 
 The expression " the Summary Jurisdiction Act " means the 
 Act of the seventh year of the reign of His Majesty 
 King William the Fourth and the first year of the reign 
 of Her present Majesty, chapter forty-one, intituled " An 
 Act for the more effectual recovery of small debts in the 
 sheriff 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 be read and construed as if for the expression " the 
 Lord Chancellor," wherever it occurs therein, the expression "the 
 Court of Session by act of sederunt" were substituted. 
 
 All jurisdiction, powers, and authorities necessary 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 
 proceeding 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 be enforced in the same manner and 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. 
 
 Paet V. 
 Application of Act to Ireland. 
 
 15. Application to Ireland.] This Act shall extend to Ireland, 
 with the modifications 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 Chancellor of Ireland r 
 
 The expression "the Summary Jurisdiction Act" shall be construed 
 to mean, as regards the police district of Dublin metropolis, 
 the Acts regulating the powers and duties of justices of the 
 peace for such district, and elsewhere in Ireland, the Petty 
 Sessions (Ireland) Act, 1851, and any 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 whom 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 
 
 Dublin metropolis be constituted of one or more of the 
 divisional justices of the said district, and elsewhere in 
 Ireland of two or more justices of the peace in petty sessions 
 sitting at a place appointed for holding petty sessions : , 
 The expression " fifth 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 Liability of Employers to make 
 Compensation for Personal Injuries suffered by Workmen in their 
 service. [7th September, 1880.] 
 
 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. Amendment of law."] 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 u.sed in the business 
 of the employer ; 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 
 instinictiijns ^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, 
 the workman, 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 employees' liability act, 1880 
 
 2. Exceptions to amendment of law.] A workman siaU not be 
 entitled under this Act to any right of compensation or remedy 
 against the employer in any of the following cases ; that is to say, 
 
 (1.) Under sub-section one of section one, unless the defect therein 
 mentioned arose from, or had not been discovered or 
 remedied owing to the negligence of the employer, or of 
 some person in the service of the employer, and entrusted 
 by him with the duty of seeing that the ways, works, 
 machinery, or plant were in proper condition. 
 
 (2.) Under sub-section four of section one, unless the injury 
 resulted from some impropriety or defect in the rules, bye- 
 laws, or instructions therein mentioned ; provided that 
 where a rule or bye-law has been approved or has been 
 accepted as a proper rule or bye-law by one of Her Majesty's 
 Principal Secretaries of State, or by the Board of Trade, or 
 any other department of the Government, under or by 
 virtue of any Act of Parliament, it shall not be deemed for 
 the purposes of this Act to be an improper or defective rule 
 or bye-law. 
 
 (3.) In any case where the workman knew of the defect or negli- 
 gence which caused his injury, and failed within'a reasonable 
 time to give, or cause to be given, information thereof to 
 the employer or some person superior to himself in the 
 service of the employer, unless he was aware that the 
 employer or such superior already knew of the said defect 
 or negligence. 
 
 3. Lindt of sum recoverable as compensation.'] The amount of com- 
 pensation recoverable under this Act shall not exceed such sum as 
 may be found to be equivalent 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 compensation.] An action for the 
 recovery under 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 notice shall be no bar 
 to the maintenance of such action if the judge shall be of opinion 
 that there was reasonable excuse for such want of notice. 
 
 5. Money payable under penalty to be deducted from compensation 
 under 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 a penalty which 
 may have been paid in pursuance of any other Act of Parliament to 
 
(43 & 44 VICT. CAP.. 42). 201 
 
 such workman, representatives, or persons in respect of tlie same 
 cause of action ; and where an action has been brought under this 
 Act by amy workman, or the representatives of any workman, or any 
 persons claiming 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.] — (1.) 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 remimeration 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 multiplicity 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 procedxire in 
 other actions in county courts. 
 
 "County court" shall, with respect to Scotland, mean the 
 " Sheriff's Court," and shall, with respect to Ireland, mean the " Civil 
 Bill Court." 
 
 In Scotland any action under this Act may be removed to the 
 Court of Session at the instance of either party, in the manner 
 provided bv and subject to the conditions prescribed by section nine 
 of the Sheriff 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 ofiiyury.] 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 
 
202 workmen's compensation act, 1897 
 
 be deemed to have been served at the time when a letter containing 
 the same would be delivered in the ordinary course of post ; and, in 
 proving the service of such notice, it shall be sufficient to prove that 
 the notice was properly addressed and registered. 
 
 Where the employer is a body of persons corporate or unincorporate, 
 the notice shall be served by delivering the same at or by sending it 
 by post in a registered letter addressed to the office, or, if there be 
 more than one office, any one of the offices of such body. 
 
 A notice under this section shall not be deemed invalid by reason 
 of any defect or inaccuracy therein, unless the judge who tries the 
 action arising from the injury mentioned in the notice shall be of 
 opinion that the defendant in the action is prejudiced in his defence 
 by such defect or inaccuracy, and that the defect or inaccuracy was 
 for the purpose of misleading. 
 
 8. Definitions.'] Fpr the purposes of this Act, unless the context 
 otherwiss requires— 
 
 The expression "person who has superintendence entrusted to 
 him," means a person whose sole or principal 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 
 person to whom the Employers and Workmen Act, 1875 
 (38 & 39 Vict. c. 90), applies. 
 
 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 Employers' Liability 
 Act, 1880, and shall continue in force till the thirty-first day of 
 December, one thoxisand eight hundred and eightv-seven, and to the 
 end of the then next session of Parliament, and no longer, unless 
 Parliament shall 'otherwise determine, and all actions commenced 
 under this Act before that period shall be continued as if the said 
 Act had not expired. 
 
 WORKMEN'S COMPENSATION ACT, 189V. 
 (60 & 61 Vict. Cap. 37.) 
 
 An Act to ofmend the Law with respect to Compensation io Wgrkmm,for 
 accidental Injuries suffered in the course of ibeSr 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 Temporal, and 
 
(60 & 61 VICT. CAP. 37). 203 
 
 Commons, in ttis present Parliament assembled, and by the authority 
 of the same, as follows : — 
 
 1. Liability of certain employers to workmen for injuries.] — (1.) If in 
 any employment to which this Act applies personal injury by 
 accident arising out of and in the course of the employment is 
 cavised to a workman, his employer shall, subject as herein-after 
 mentioned, be liable to pay compensation in accordance with the 
 I'irst Schedule to this Act. 
 (2.) Provided that :— 
 
 (a.) 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 ^ 
 (J.) 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 compensation claimed in respect of that injury shall 
 be 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 action 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 judgment, have been caused by the plaintiff bringing 
 the action instead of proceeding under this Act. 
 
 In any proceeding under this sub-section, when the court assesses 
 the compensation it shall give a certificate of the compensation it 
 has awarded and the directions it has given as to the deduction for 
 costs, and such certificate shall have the force and effect of an award 
 under this Act. 
 
 (5.) Nothing in this Act shall affect any proceeding for a fine 
 under the enactments relating to mines or factories, or the application 
 of any such fine, but if any such fine, or any part thereof, 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 taking proceedings.] (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 
 voluntarily 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 
 inaccuracy, or that such want, 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 employer, or, if there is more 
 than one employer, vipon 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, amd if served by post shall be 
 deemed .to have been served at the time when the letter containing 
 the same would have been delivered in the ordinary course of post, 
 and in proving the service of such notice it shall be sufiicient to 
 prove that the notice was properl}' 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 out.] — (1.) If the Eegistrar of Friendly Societies, 
 after taking steps to ascertain the views of the employer and work- 
 men, certifies that any scheme of compensation, benefit, or insurance 
 
(60 & 61 vioT. CAP. 37). 205 
 
 for the workmen oi an employer in any employment, whether or 
 not such scheme includes other employers and their workmen, is 
 on the whole 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, 
 this Act shall apply notwithstanding any contract to the contraiy 
 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.) No scheme shall be so certified which contains an obligation 
 upon 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 employer 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 satisfactory 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 or 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 
 hy the Registrar of Friendly Societies. 
 
 (7.) The Chief Registrar of Friendly Societies shall include in his 
 annual report the particulars of the proceedings of the Registrar 
 under this Act. 
 
 4. Sub-contracting.'] 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 pay compensation under 
 this Act to those workmen in respect of any accident arising out of 
 and in the course of their employment, the undertakers shaU 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 indejjendently 
 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 
 
206 workmen's compensation act, 1897 
 
 by any other person 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 part of, or process in, the 
 trade or business carried on by such undertakers respectively. 
 
 5. Compensation to workmen in ease of bankruptcy 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 company of the company having commenced to be 
 wound up, such workman shall have a lirst charge upon the sum 
 aforesaid for the amount so due, and the judge of the county court 
 may direct the insurers to pay such sum into the Post Oifice Savings 
 Bank in the name of the registrar of such court, and order the same 
 to be invested or applied in accordance with the provisions of the 
 First Schedule hereto with 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 first charge upon " shall mean " be preferentially entitled to.'' 
 
 6. Recovery of damages from stranger.] Where the injury for which 
 compensation is payable under this Act was caused under circum- 
 stances creating a legal liability in some person other than the 
 employer to pay damages in respect thereof, the workman may, 
 at his option, -proceed, either at law against that person to recover 
 damages, or against his employer for compensation under this Act, 
 but not against both, and if compensation be paid under this Act, the 
 employer shall be entitled to be indemnified by the said other person. 
 
 7. Application of Act and definitions.] — (1.) This Act shall apply 
 only to employment by the undertakers as hereinafter defined, on 
 or in or about a railway, factory, mine, quarry, or engineering work, 
 and to employment by the undertakers as hereinafter defined on in 
 or aboiTt any building which exceeds thirty feet in height, and is 
 either being constructed or repaired by means of a scaffolding, or 
 being demolished, or on which machinery driven by steam, water, 
 or other mechanical power, is being used for the purpose of the 
 construction, repair, or demolition 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 made under the Light Railway.^ 
 
 Act, 1896 (6) ; and "railway" and" railway company" have. 
 
 the same meaning as in the said Acts of 1873 and 1896 : 
 
 (a) 36 & 37 Vict. c. 48. (J) 59 & 60 Vict, c. 48. 
 
(60 & 61 VICT. CAP. 39). 207 
 
 Factory" has the same meaning as in the Factory and 
 Workshop Acts, 1878 to 1891, and also includes any dock, 
 wharf, quay, warehouse, machinery, or plant, to which any 
 provision of the Factory Acts is applied by the Factory and 
 Workshop Act, 1895 (c), 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 Kegulatiou Act, 
 1872(e), applies: 
 
 " Quarry " means a quarry under the Quarries Act, 1894 (/) : 
 
 " Engineering work " means any work of construction or altera- 
 tion or repair of a railroad, harbour, dock, canal, or sewer, 
 and includes any other work for the construction, alteration, 
 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 1 895 ; 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 
 imincorporate 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 specified 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. 
 
 Id) 50 & 51 Vict. c. 58. (/) 57 & 58 Vict. c. 42. 
 
 (e) 35 & 36 Vict. c. 77. (g) 9 & 10 Vict. c. 93. 
 
208 -workmen's compensation act, 1897 
 
 or solatium in respect of the death of the workman, 
 
 as were wholly or in part dependent upon the 
 
 earnings of the workman at the time of his death. 
 
 (3.) A workman employed in a factory which is a shipbuilding 
 
 yard shall not he 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 workmen in employment of Crown.] — (1.) This Act 
 shall not apply to persons in the naval or military service of the 
 Crown, but otherwise shall apply to any employment by or under 
 the Crown to which this Act would apply if the employer were a 
 private person. 
 
 (2.) The Treasury may, by warrant laid before Parliament, 
 modify for the purposes of this Act their warrant made under section 
 one of the Superannuation Act, 1887 (7i), and notwithstanding anything 
 in that Act, or any such warrant, may frame a scheme with a view 
 to its being certified by the Eegistrar of Friendly Societies under this 
 Act. 
 
 9. Provision as to existing contracts.] Any contract existing at the 
 commencement of this Act, whereby a workman relinquishes any 
 right to compensation from the employer for personal injury arising 
 out of and in the course of his employment, shall not, for the pur- 
 poses of this Act, be deemed to continue after the time at which the 
 workman's contract of service would determine if notice of the 
 determination thereof were given at the commencement of this Act. 
 
 10. Commencement of Act and short title.]— (1.) 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 whoUy dependent 
 upon his earnings at the time of his death, a sum equal 
 to his earnings in the employment of the same 
 
 (A) 50 & 51 Vict. c. 67. (j) Sections 1, 5. 
 
(60 & 61 VICT. CAP. 37). 209 
 
 •employer during the three years next preceding the 
 injury, or the sum of one hundred and fifty pounds, 
 whichever of those sums is the larger, but not exceeding 
 in any case three hundred pounds, provided that the 
 amount of any 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 said three years shall be deemed 
 to be 156 times his average weekly earnings during the 
 period 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 sum, not 
 exceeding in any case the amount jDayable 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 de23endants ; 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, regard shall be 
 had to the difference 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 i)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 required by the employer, submit himself for examination by 
 a duly qualified medical practitioner provided and paid by the 
 employer, and if he refuses to submit himself to such examination, 
 or in any way obstructs the same, his 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 by him to or 
 
 M. & s. P 
 
210 woekmsn's compensatiok act, 1897 
 
 foi the benefit of tlie depeadante or other person entitled thereto 
 uader this Act. 
 
 (5.) Any question as to who is a dependant, or as to the amount 
 payatjle to each dependant, shall, in default of agreement, be settled 
 by arbitration under this Act 
 
 (6.) The sum allotted as compensation to a dependant may be 
 inyested or otherwise applied for the benefit of the person entitled 
 thereto, as agreed, or as ordered by the committee 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 
 JPost 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 Office Savings Bank, or be accepted by the Postmaster-General 
 as a deposit in the name of the registrar as such, and the provisions 
 of any statute or regulations respecting the limits of deposits in 
 savings bank, and the declaration to be made by a depositor, shall 
 not apply to such sums. 
 
 (9.) No part of any money invested in the name of the registrar 
 of any county court in the Post Office Savings Bank under this Act 
 shall be paid out, except upon authority addressed to the Postmaster- 
 General iDy the Treasury or by the judge of the county court. 
 
 (10.) Any person deriving any benefit from any moneys invested 
 in a post office savings bank under the provisions of this Act may, 
 nevertheless, open an account in a post office sa^'ings bank or in any 
 any other savings bank in his own name without being liable to any 
 penalties imposed by any statute or regulations in respect of the 
 opening of accounts in two savings banks, or of two accounts in the 
 same savings bank. 
 
 (11.) Any workman receiving weekly payments under this Act 
 shsill, if so required by the employer, or by any person by whom the 
 employer is entitled under this Act to be indemnified, from time to 
 time submit himself for examination by a duly qualified medical 
 practitioner provided and paid by the employer, or such other 
 person ; but if the workman objects to an examination by that 
 medical practitioner, or is dissatisfied by the certificate 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 to 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 obstructs the same, his right 
 to such weekly payments shall be suspended until such exammation 
 has taken place. 
 
 (12.) Any weekly payment may be reviewed at the request either 
 of the employer or of the workman, and on siich review may be 
 
(60 & 61 VICT. CAP. 37). 211 
 
 ended, diminislied, 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 liability therefor may, on the application by 
 or on behalf of the employer, be redeemed by the payment of a lump 
 sum, 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 siim paid by way of redemption 
 thereof, shall not be capable of being assigned, charged, or attached, 
 and shall not pass to any other person by operation of law, nor shall 
 any claim be set off against the same. 
 
 (15.) Where a scheme certified under this Act provides for payment 
 of compensation by a friendly society, the provisions of the proviso 
 to the hrst 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 expression 
 " registrar of the county court " means " sheriff 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 (l), 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). 
 Akbiteation. 
 
 The following provisions shall apply for settling any matter which 
 under 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 belore 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 
 
 (70 59 & 60 Vict. c. 25. (0 iO & 41 Vict. c. 56. (m) Section 1, 
 
 p 2 
 
212 woekmen's compensation act, 1897 
 
 prescribed by rules of court, or if in England the Lord Chancellor 
 so authorizes, according to the like procedure, by a single arbitrator 
 appointed by such county court judge. 
 
 (3.) Any arbitrator appointed by the county court judge shall, for 
 the purposes of this Act, have all the powers of a county court 
 judge, and shall be paid out of moneys to be provided by Parliament 
 in accordance with regulations to be made by the Treasury. 
 
 (4.) The Arbitration Act, 1889(?i), shall not apply to any arbitration 
 imder this Act ; but an arbitrator may, if he thinks fit, submit any 
 question of law for the decision of the county court judge, and the 
 decision of the judge on any question of law, either on such 
 submission, or in anj' case where he himself settles the matter under 
 this Act, shall be final, unless within the time and in accordance with 
 the conditions prescribed by rules of the Supreme Court either party 
 appeals to the Court of Appeal ; and the county court judge, or the 
 arbitrator appointed by 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 provision for the appearance in any 
 arbitration under this Act of any party 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, whether before an arbitrator or in the county court, shall not 
 exceed the limit prescribed by rules of court, and shall be taxed in 
 manner prescribed by those rules. 
 
 (7.) In the case of the death or refusal or inability to act of an 
 arbitrator, a judge of the High Court at Chambers may, on the 
 application of any party, appoint a new arbitrator. 
 
 (8.) Where the amount of compensation under this Act shall have 
 been ascertained, or any weekly payment varied, or any other matter 
 decided, under this Act, either by a committee or by an arbitrator or 
 "by agreement, a memorandum thereof shall be 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 which any person entitled to such compensation resides, 
 who shall, sultject 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 the 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 couit, 
 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 court of the district in which all the parties concerned 
 
 (») 52 & 53 Vict. c. 49. 
 
(60 & 61 VICT. CAP. 37). 213 
 
 reside, or if they reside in different districts the district in which 
 the accident out of which the said matter arose occurred, without 
 prejudice to any transfer in manner provided hy rules of court. 
 
 (10.) The duty of a county court judge under this Act, or of an 
 arbitrator appointed by him, shall, subject to rules of court, be part 
 of the duties of the county court, and tiie officers of the court shall 
 act accordingly, and rules of court may be made both for any purpose 
 for which this 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 by the judge of the county 
 courts, and proceedings in the county court or before any such 
 arbitrator, 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-lour of the County Courts Act, 1888(o), 
 and when allowed by the Lord Chancellor, as provided by that 
 section, shall have full effect witliout any further consent. 
 
 (11.) No court fee shall be payable by any party in respect of any 
 proceeding under this Act in the county court prior to the award. 
 
 (12.) Any 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 agent 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 application 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 jpurpose of this Act, and any committee, 
 aibitrator, or judge may, subject to regulations made by the Secretary 
 of State and the Treasury, appoint any such practitioner to report 
 on any matter which seems material to any question arising in the 
 arbitration ; and the expense of any such medical practitioner shall, 
 subject to Treasury regulations, be paid out of moneys to be provided 
 by Parliament. 
 (14.) In the aiiplication 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 : " 
 (b.) Any award or agreement as to compensation under this Act 
 may be competently recorded for execution in the books 
 of council and session or sheriff court 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 
 
 (o) 51 & 52 Vict. c. 43. 
 
214 workmen's COMPENSATIOIT ACT, 1897 
 
 by the fifty-second section of the Sheriff Coitrts (Scotland) 
 Act, 1876 ( p), save only that parties may be represented by 
 any person authorized in writing to appear for them and 
 subject to the declaration that it shall be competent to 
 either party within the time and in accordance with the 
 conditions prescribed by act of sederunt to require the 
 sheriff to state a case on any question of law determined 
 by him, and his decision thereon in such case may be 
 submitted to either division of the Court of Session, who 
 may hear and determine the same finally, and remit to 
 the sheriff with instruction as to the judgment to be 
 pronounced. 
 (15.) Paragraphs four and seven of this 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. 
 
INDEX. 
 
 Abbott, Chief Justice, 165. 
 
 Abinger, Lord, 
 
 on liability of master for injury to his servant, 66. 
 
 on common employment, 72, T3. 
 
 on doubtful cases of who is the master, 99. 
 
 Absenting Unlawfully, ground for dissolving apprenticeship, 166 
 
 Accidents, 
 
 to servants, 66. r 
 
 caused by fellow servants, 72. 
 
 compensation for, 76, 78, 79. 
 
 master's liability for. See 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 enjploy, 19. 
 between maater and servant, 104. 
 
 Ageicultural Labourers, 
 as servants, 2. 
 hiring of general, 17. 
 
 Aldeeson, Baron, 
 
 on restraint of trade, 30. 
 
 on reasons for dismissal, 43. 
 
 on common employment, 73. 
 
 on liabiKty of servant for contracts, 121. 
 
 Alien Trades, and apprenticeship, 157, 
 
 Alvanley, Lord, on medical aid to servants, 57 
 
 Amphlett, Baron, 2. 
 
 Appeentices, 
 
 a class of servants, 2. 
 Statute of, 152. 
 marriage of, 168. 
 harbouring, 169. 
 
INDEX. 
 
 Apprentices— CO?? tinned. 
 
 habeas corpus to bring up, 169. 
 
 earnings of, 170, 
 
 misconduct of. 170. 
 
 chastisement of, 170. 
 
 must be taught 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 requiied to instruct others, 173. 
 
 overtime by, 173. 
 
 working on Sundays and Bank Holidays, 173. 
 
 emigration of, 175. 
 
 parish, 175. 
 
 to the sea service, 178. 
 
 discharge of, 178. 
 
 transference of, 178. 
 
 visitation of, 179. 
 
 registration of, 179. 
 
 Apprenticeship, 
 
 definition of, 151. 
 the contract of, 151. 
 
 by indenture, 158, 177. 
 
 verbal, 159. 
 
 technical words not necessary, 158. 
 
 surety, 157. 
 
 assent of apprentice essential, 159. 
 
 teaching of its essence, 160. 
 
 must not be disadvantageous to the infant apprentice, 163. 
 
 premium, 159, 160, 167. 
 
 covenants in, independent, 161. 
 
 stamp, 161. 
 
 term, 160. 
 
 dissolution of, 165. 
 by parol, 169. 
 parties to the contract, 157. 
 rights and duties of the parties, 169. 
 history of, 152. 
 City of London and, 155. 
 settlement gained by, 160. 
 
 tinder Watermen and Lightermen's Act, 1859... 171. 
 the Employers and Workmen's Act, 1875.. .174, 194, 195, 197. 
 Keformatory and Industrial Schools Acts, 175. 
 parish, 175. 
 
 under the poor law of Elizabeth, 175. 
 compulsory, abolished, 176. 
 to sea service, 178. 
 
INDEX. 
 
 Assault, 
 
 by master in servant's defence, 63. 
 by servant in master's defence, 63. 
 
 Assignment, of apprentice, 171. 
 
 Author, 18, 
 
 authobity, 
 
 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. 
 
 Bankeuptct, 
 of master, 
 
 effect 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. 
 
IISTDEX. 
 
 Bramwell, Baron, 4, 43, 63. 
 Breakages, by servant, 19, 28, 
 Burglary, by servant, 123. 
 Burn's Justice op 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 Cathedrai, as tenant, 8. 
 
 Carelessness, master liable for, in case of injury to servant, 68, 
 
 Garter, 124. 
 
 Chairman op a Public Meeting, 2. 
 
 Ohambre, Me. 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 actioUj 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. 
 
 action by schoolmaster relative to, 138. 
 
 second-hand knowledge may be privileged, 139. 
 
 adverse information may be -given after good character, 141. 
 
 statements to third parties when privileged, 142. 
 
 statements by third parties when privileged, 143. 
 
 malicious statement regarding — 
 
 must be actionable in themselves, 145, 
 
 or cause special damage, 144. 
 endorsing a written character, 145. 
 giving a false, 146. 
 
 by schoolmaster, 146. 
 
 by policeman, 146. 
 
 by governess, 146. 
 Servants Characters Act, 1792. ..147. 
 
INDEX. 
 
 Chastisement, 
 
 of servant by master, 50. 
 of apprentice by master, 170. 
 
 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. 
 , whem not liable, 83. 
 
INDEX. 
 
 Contract of Hieing and Service, 
 definition of, 14. 
 parties to, 1. 
 
 in writing, Statute of Frauds, 14. 
 verba], 1.5. 
 
 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. 
 
 •when not binding though in writing, 31. 
 consideration for, 23. 
 of apprenticeship, 15. 
 injunction to enforce, does not lie, 20, 
 
 Corn Factor, 125. 
 
 Coming of Age, as ground for dissolving apprenticeship, 165. 
 
 Corporal Punishment. See Chastisement. 
 
 Consideration, 
 
 express or implied, 23. 
 
 legacy as, 23. 
 
 adequacy of, 29. 
 
 on a quantum 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. ..156, 183. 
 
 Contagious Diseases (Animals) Act, 1894., .116. 
 
 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 wages in, 31. 
 
 jurisdiction of. See Employers 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. 
 
 Cbanwobth, Lord, 74. 
 
 Obesswell, Mb. Justice, 51, 86. 
 
 Criminal Acts, 
 
 of servant, master civilly liable, 87. 
 liability of servant for, 123. 
 
 Customs and Inland Revenue 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 of Master, 
 
 determines contract of hiring, 33. 
 determines 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 liquidation, 34. 
 
 of domestic servants, 34. 
 
 of clerks, commercial travellers, governesses, 35. 
 
 of editors and newspaper correspondents, 36. 
 
IKDEX. 
 
 Dismissal — continued. 
 
 of apprentices, 165 — 7. 
 ■without notice, 36. 
 
 when justifiable. See Dissolution of Conteact. 
 reason for dismissal need not be known, 42. 
 for disobeying domestic regulatioas, 49, 
 
 Disobedience, dismissal for,, 36. 
 
 DissoLQTioN op Contract op Hieing, 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 firm of partners, 34. 
 by notice in case of 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 required, 34. 
 
 illness of, 29, 54. 
 
 not within Employers and Workmen's Act, 1875... 196. 
 
 not within Employers' Liability Act, 1890... 199. 
 
 not within Workmen's Compensataon Act, 1897.. ,202. 
 
 Driver, 6. 
 
 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 reasonable, 48i 
 to be diligent, 50, 
 
IKDEX. 
 
 Duties — continued. 
 of master — 
 
 to be careful, 51. 
 to protect young servants, 51. 
 to pay wages, 52. 
 to provide food if agreed on, 52. 
 liow 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. 
 
 Kditors, 
 
 nature of hiring, 18. 
 
 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 under, 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. 
 
 Ekle, Chief Justice, 4, 8. 
 
INDEX. 
 
 EsHER, Lord, M.R., 6, 11, 41, 95, 164. 
 
 Executors, 
 
 of master employing servant, 33. 
 
 apprentice, 167. 
 
 Factory and Workshops Acts, 71. 
 
 Palsb Character, giving by servant, 46. 
 
 Farm Bailiff, 71. 
 
 Fellow Workmen, 72—76. 
 
 Female Servant, 
 
 marriage of does not dissolve contract of hiring, 11. 
 
 Food, wien duty of master to supply, 52. 
 
 Food and Drugs Act, 1875. ..116. 
 
 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. 
 
 Gambling, 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 other servants, 16. 
 
 Gejieral Manager, 12. 
 
 Gj;neral Order, of July 24th, 1847.. .176. 
 
 Governess, 
 
 not a menial servant, 2. 
 en itled to three months notice, 35. 
 niiscondvict of, previous to service, 38. 
 action by, for giving false character, 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 apprenticeship, 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, 16t> 
 M. & s. Q 
 
INDEX. 
 
 Immoral, 
 
 contracts of hiring not binding, 29. 
 conduct a ground for dismissal, 38. 
 
 Implied authority, 106. 
 
 INCITIN& 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. 
 
 Contngious 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. 
 
 Jessbl, Sir George, M.E., 6. 
 
 Jobmaster, 3. 
 
 Junius, letters of, 113. 
 
 Justices, 
 
 jurisdiction of. Sec Employers and Workmen's Act, 1875. 
 
INDEX. 
 
 Kenyon, 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, lz2. 
 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. 
 
 Labourees, 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. 
 
 Lb 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. 
 
 Liability — continued. 
 of master — continued. 
 
 non-existent, 111. 
 
 after servant's dismissal, 111. 
 if contributory negligence by servant, 69. 
 if servant in common employment, 72 — 76. 
 if servant act outside scope of his authority, 01, 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 officer, 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 officers, 97. 
 of telegraph companies, 98. 
 of tramway companies, 93. 
 of trustees, 91. 
 of master for crimes of servant, 113. 
 
 for libels by servant, 113, 114. 
 of servant for torts, 118. 
 
 for conversion, 118. 
 for contracts, 120. 
 for crimes, 123. 
 
 Libels in newspapers, 113. 
 
 Licensing Act, 1872. ..115. 
 
 Licensing Laws, 115. 
 
 LiNDLEY, Mr. Justice, 89. 
 
 LiTTLEDALE, Mr. Jdstice, 81, 104, 138, 140. 
 
 LivERT, servant not entitled to retain, 20. 
 
 Local Authorities as masters, 12. 
 
 Lodging-house Keepers, liability of,^for their servants, 91. 
 
 London Vestries, 13. 
 
 Lord Campbell's Act, 63, 76. 
 
 Losses by Servant, 19, 28, 51. 
 
INDEX. 
 
 Lunatics, 
 
 as servants, 11. 
 as masteis, 11. 
 
 Ltndhurst, Lord, 60. 
 
 Machinery, dangerous, 71. 
 
 Maintenance, 61. 
 
 Male Servant, duty on, 22. 
 
 Malice, 
 
 in giving character, 135. 
 
 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 Apprentices, 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, 64. 
 
 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 wages 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 third parties, 61. 
 may defend his servant from assault, 63. 
 has right of action for debauching his servant, 63. 
 liability 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 Appebntices. 
 of a ship, 5. 
 of a school, 41. 
 
 Master and Servant Act, 1867... 15. 
 
 Medical Attendance, 
 
 master not obliged to provide servant with, 29, 64. 
 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 contract 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 highwa}', 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. 
 
 Omnis batieabitio retbotbahitub et mandato pbiobi equip- 
 
 ABATUB, 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. 
 
INDEX. 
 
 Ostler, 18. 
 
 oveeseers, 120. 
 
 Overtime, by apprentices, 173. 
 
 Palmerston, Lord, 143. 
 
 Parent, action by, for seduction of child, 63. 
 
 Parish Appebntiobs, , 
 
 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. 
 
 Parkb, 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 for terminating apprenticeship, 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 Procueation, 121. 
 
 Petit Treason, 123. 
 
INDEX. 
 
 Pharmacy Act, 1867.. .116. 
 
 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, 133, et seq. 
 words spoken to policeman on giving servant in charge, 143. 
 
 magistrate in preferring complaint, 143. 
 when statements to third parties, 142. 
 by third parties, 143. 
 communication by shipping assurance society to owner of 
 vessel, 144. 
 
 Proprietors op Public Conveyances, liability of, 89. 
 
 Public Health Act, 1875. ..12. 
 
 Public Officers, 
 
 if superior, not responsible for subordinates, 97, 120. 
 
 Public Conveyances, 89. 
 
 Quantum meruit, when servant entitled to, 20, 23, 27. 
 
 ■Quarry, nuisance from, 116. 
 
 Quasi-Criminal Acts, 114. 
 
 ■^crr facit per alium, eacit\ per se, 80, 101. 
 
INDEX. 
 
 Eailway Company, 
 
 liability of for acts of servants, 90. 
 
 station master, 92, 109. 
 
 general manager, 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 sbould be, 46. 
 
 servant should not be unreasonable, 48. 
 
 orders accompanied by danger, not, 49. 
 
 Recipeocal, 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 
 
 Be.'^poxdhat SuPEBros, 120. 
 
 Restraint of Trade, 29, 30, 31. 
 
 Returning Officers, 120. 
 
 Revenue Laws, 114. 
 
 Rights, 
 
 of master, 45. 
 of servant, 45. 
 
 Robbery. See Larceny. 
 
 EoMiLLY, Sir J., 173. 
 
 RooKE, Mr. Justice, 57. 
 
 Russell Gueney's Act, 128. 
 
 Sale, servant giving warranty at, 105. 
 
INDEX. 
 
 Schoolmaster, 
 
 wrongly dismissed, 41. 
 giving false character, 146. 
 
 Sea Service, apprenticeship to, 1V8. 
 
 Seal, for hiring of corporation servants, 12. 
 
 Secrets, of trade, divulging of by clerks, 21. 
 
 Seduction, 
 
 action by parent, 63. 
 by others, 65. 
 damages for, 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 rtieruit, 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 of master bj', 50. 
 
 indemnification of by master, 59. 
 
 enticing away, 61. 
 
 may defend his master from assault, 63. 
 
 claim against master for injury. See Liability or Master. 
 
 torts of, when master liable for, 81. 
 
 criminal acts of, master civiUy liable for, 87. 
 
INDEX. 
 
 Servant — continued. 
 
 fraud of, liability of master for, 87. 
 
 trespass by, 88. 
 
 mutinous acts of, 95. 
 
 of railway companies, 89. 
 
 of innkeepers, 90. 
 
 of lodging-house keepers, 90. 
 
 of corporations, 91. 
 
 authority 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. 
 
 wanton injurv, 119. 
 
 fraud, 119. 
 
 crimes, 123. 
 
 to third parties, 118. 
 guilty 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, 
 
 required on an instrument of apprenticeship, 161. 
 when required for servants, 22. 
 
 Starving servants, 53. 
 
 Statement op Servant, 158. 
 
 how far binding on master, 109, 
 
INDEX. 
 
 Status of servants, 48. 
 
 Statute Law Eevision Act, 1861. ..127. 
 
 Statute op Frauds, 14, 45. 
 
 Statute op 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 op Police, a servant under Larceny Act, 129. 
 
 Superior Public Oppicers, not responsible for subordinates, 97, 120. 
 
 Surety, of parent for apprentice, 157. 
 
 Surgeon, 
 
 of hospital not a tenant, 7. 
 attending pauper, 55. 
 
 Surveyor op Highways, not liable, 157. 
 
 Tackle, master must supplj' 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. 
 
 Tenterden, Lord, 106, 140. 
 
 Term, 
 
 of hiring, 15. 
 
 of apprenticeship, 160, 177. 
 
 Theft, 
 
 as a ground for dismissal, 39. 
 
 as ground or dissolving apprenticeshiiJ, 166. 
 
INDEX. 
 
 Thesiger, Lobd Justice, 10. 
 
 Thied 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. 
 
 Tramway, 
 
 liability of company for acts of servants, 93. 
 conductor not within Employers and Workmen Act, 1875, 
 70, 71. 
 
 Treason, mnrder 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, servant must not be, 48. 
 Unskilfulness, as a ground for dismissal, 39. 
 Urban Authorities, as masters, 12. 
 User, does not alone render master liable, 112. 
 
 Verbal contract of hiring, 15. 
 Victuals. See Food. 
 Volenti nox fit injuris, 70, 71. 
 Volunteers, 77. ' 
 
INDEX. 
 
 Volunteer Regulations, 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 lor, 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 Injuey, servant liable for, 119. 
 
 Warranty, master's liability for servant's, 105. 
 
 Warning. See Notice. 
 
 Watermen and Lightermen, 
 Act, 1859.. .97. 
 companj', 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. 
 
 Wokkman. See Employers and Workmen Act, 1875. 
 
INDEX. 
 
 Wobkmen's Compensation Act, 1897. ..79, 202. 
 Words, actionable in themselves, 145. 
 Wetting, when contract of hiring must be in, 14, 45. 
 Weongful Discharge. See Dismissal. 
 Wrongs. See Torts. 
 
 Yearly Hieing, 
 
 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. 
 
 iONDOK : SHAW AND SONS, FETTER iANE AND CRANE COURT, B.C. 
 
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