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The law of master and servant. Part I.--Common law. Part II.-- Statute law online

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were less by i,'5 in the year on ac-
count of this circumstance.

R. V. Vheshunt (1818), 1 B. &
AM. 473. A labourer employed
by the Board of Ordnance. He
previously occupied a house at a
rent of ,£7. The house was pur-
chased by the Board. He con-
tinued to reside in part of the
house at a weekly rent of 2s.,.
which wa.s deducted from hi&
wages. No occupation as tenant.

A', v. llanlv'M (1823), 2 V,. & C.
Kil, and 2 1). & P. iM.C. 53. Pauper
hirt'd for a year as a shepherd. He
was to receive a house and a garden
rent free, 7.s. as Avages a week, and
the goings of thirty sheep with his-



IlIllIXG AND SERVICE AND SIMILAR CONTRACTS.



71



Tenant.
may be consitU'red as so niucli of
salary and eiuolumeut annexed to
the oliice/'

R V. Minder (1814), 3 M. &
S. 27(5. A master found his
bailiH', a servant in receipt of
■\veekl)' wages, a lioiise and pas-
turage for two cows on the master's
land, not connected with tlie ser-
vice or necessary for the convenient
performance of it ; tlie servant
had a distinct interest in the
pasturage of the two cows.

Doe dem. Nicholl v. McKaeg
(1830), 10 B. &C. 721. Defendant,
minister of a dissenting congrega-
tion. He was put in possession
of a chapel and dwelling-house
by lessors, in whom the legal
estate was vested in trust to per-
mit the chapel to be used for the
purpose of religious worship. Be-
ing a tenant at will after de-
mand for possession, he was not
entitled to a reasonable term for
the purpose of removing his goods.
'• If the tenant," Lord Tenterden
observed, " after the determination
of his tenancy in this case, by a
demand of possession, had entered
on the premises for the sole pur-
pose of removing his goods, and had
continued there no longer than
was necessary for that purpose,
and did not exclude the landlord,
perhaps he might not have Ijeen
a trespasser." See JJoe dem. Jones
V. Joneti (1830), 10 B. & C. 718, and
Lake v. Cnmijbell (1862), 5 L. T.
N. S. 582.

II. V. JFall Lynn (1838), 8 A. &
E. 379. R., a brewer, engaged L.,
as his clerk, at a yearly salary, ancl
agreed to permit him to occupy a
certain house as residence, free of
r^nt, rates, and taxes. Another
clerk was to be lodged in the
same house. L. ratealjle ; L. being
an " independent holder," and
having absolute dominion, and the
house not being the master's.

R. v. Binhopton (1839), 9 A. &
E. 824. Pauper resided in a



XoT Tknant.
master's flock for the niore con-
venient performance of the pauper's
duties ; did not occupy the house
and garden as tenant. ]>ayley, J.,
took occasion to say that li. v.
Minder was " open to much ob-
servation."

Hunt V. Cobon (1833), 3 Moore
& Scott, 790. Servant, employed
by Highgate Archway Comi>any ta
collect tolls. He lived in the toll-
house, and one shilling a week was
deducted from his wages by way of
rent. The company having con-
tracted to sell the land on which
the cottage stood, discharged the
plaintiff from their employment
and gave him notice to quit, to
which he assented. Held, not a
tenancy, and plaintiff could not
maintain trespass for pulling down
the toll-house. At Nisi Prius,
Tindal, C.J., ruled that there was
a tenancy, and the Court appears
to have assumed that there was a
tenancy before the determination
of service.

DobsoH V. Jones (1844), 5 M. & G.
112. Surgeon in Greenwich hos-
pital, who was re(|uired to occupy
rooms in the hospital ; not entitled
to vote as tenant. The Court
obserA-ed that " the relation of
landlord and tenant could not
be created by the appropria-
tion of a particular house to an
officer or servant as his resi-
dence where such appropriation
was made with a view not to the
remuneration of the occupier, but
to the interest of the employer,
and to tlie more effectual perform-
ance of the service requiied from
such officer or servant."

Mayht'W v. ^'u«<fc(1854),4 E. & B.
347 ; 23 L. J. Q. B. 372 ; Exch.
Chamber, 4 E. & B. 357. De-
fendant, who was in possession of
a certain messuage, where the sale
of beer was carried on by one George
Utting for defendant, agreed, in con-
sideration of a bondsman becoming
answerable for the amount of ^£50



72



THE LAW OF MASTER AND SERVANT.



Tenant.
cottage, rented Ity a millowner f^v
families einpltn'ecl in the mill.
Some of the chihlren of the fonner
worked in it. The a;j;reenieut was
that 2.-;. a-week shouhl be deducted
from the children's waives as rent.
The Y>auper worked as a hushand-
man. Held, that the relation
of landlord and tenant existed.
" There was," as Williams, J., ob-
served, "a renting by one who
was not servant."

B. V. I'onsonhii (1841), 3 Q. B.
14 ; G Jurist, 642. The occupiers of
apartments in Hampton Court, who
reside there with their families
and provide their own furniture,
rateable.

Huyhcs V. Chatham (184.3), 5
M. & G. 54 ; 1 Lutw. R. C. 51. A
master ropemaker occupied a house
in a Government dockyard. He
paid no rent for it, and held it as
part remuneration for his services.
No part of the house was used for
public purposes, and he had the
exclusive control of it. The
distinction to be deduced from
the settlement casus, Tindal, C. J.,
took to be this : — If a servant is
not permiitcd to occupy as a reward,
in the performance of his master's
contract to pay him, but re(|uired
to occupy in the performance of
his masters contract to seiTe his
master, his occupation is that of his
master. As nothing in the facts
of the case showed tliat the master
ro])emaker was required to occupy
the house for the performance of
his duties, or did occupy it in
order to perform them, or that the
occupation was conducive to that

f)urpose more than any other
louse, held that the claimant oc-
cupied the house as tenant within
2 Will. IV., c. 45, s. 27.

Gamhier v. Liiilfanl (1854), 3
E. & B. 34(;. The governor of a
prison rateable in respect of a
coach-h(juse and stabling within
the precincts of the prison to the
extent to which the occupation



Not Tenant.
in default of payment by the plain-
till", to let the pluintitf enter into
the premises and carry on therein
thetrade for thedeiV-ndant until the
agreement should be <letermined
by the notice mentioned in the
agreement. The plaiiititl' was to
carry on l)usiness " in the place
and stead in the same manner
and with the same privileges as
G. Utthig hath heretofoi'e done."
The agreenu-nt proceeded, "when-
ever either of the said parties hereto
shall be desirous of determi uing and
putting an end to this agreement,
he, the said F. Mayhew, shall and
will, on ri-'ceiving from the said G.
Suttle one month's ])revious notice
in writing of such desire, and with-
out being paid, or requiring to be
paid, any sum of money, <S:c., quit
and deliver up to him, the said G.
Suttle, the said trade or business,
and the full (juiet and peaceable
possession of all and every of the
said premises." Notwitlistanding
the provisions with respect to de-
termination by notice, the Court
thought that no tenancy had been
createtl, and that the occupation
was ancillary to the carrying on of
the trade for the defendant.

Clark V. Buni St. J^dmiinds
(1856), 1 C. B. N.'S. 23 ; 26 L. J.
C. P. 12. Keeper of the Guild-
hall at Bury St. Edmunds held
to occupy house attached to it as
servant because he was required
to reside there for the performance
of his duties.

R. y. Tiverton (1861), 30 L. J.
M. C. 79. A Wesleyau minister,
who lived in a house taken by the
stewardsof the circuit within which
he otliciated, paid the rates and
taxes ; but they were rejjaid by the
stewards. It appeared to be the
jiractice of the stewards to take
houses for the ministers. No settle-
nu-nt gained. According to t'roni))-
ton, J., the minister was very much
in the ]iosition of servant to the
stewards. This case appears pecu-



HIRING AND SERVICE AND SIMILAR CONTItACTS.



73



Tenant.
was in excess of wliat was neces-
sary for the ]K'rformance of his
duties. Outside tlie ]inson ]ire-
cincts were buildings occupied liy
the ofliceis of the i)rison. None
occupied iiioiY' than was necessary
for the discharge of their duties
and the acconimochition of their
families ; the dwellings were as-
signed to the dtticersLy the directors,
and tliey had no discretion as to
the houses and a]iartnients assigned
to them. Held, by Campbell, C. J.,
and Wighlman, J., that the resi-
dences outside the walls were rate-
able. Coleridge, J., dissented as to
the latter point. It is submitted that
the distinctidu taken between resi-
dences inside and those outside
2)rison walls is not warranted by
any of tlie previous decisions. See
(Jongreve v. Upton (18(54), 4 B. & S.
857 ; 33 L. J. M. C. 83.

Ford V. Harinijton (18(59), L. R.
5 C. P. 282. Canon of a cathedral
church and one of the chapter
occujned a house with which the
chapter could not interfere, and
which the canon repaired. Held,
that he occupied as canon and a
corporation sole and not as one of
the chapter, and that he could vote
in respect of it.

Smith V. Seqhill (1875), L. E.
10 Q. B. 422 ; 44 L. J. M. C. 114.
!S., a collier, resided in house be-
longing to his employers. He
paid no rent ; was not entitled to
notice to fiuit, and the occupation
would cease when S.'s service
closed. The house was one of
several which his employers filled
at their discretion. It was not
absolutely essential for workmen
to live in those houses, though
the owners preferred that the
workmen should live near their
work. An occupier within 32 &
33 Vict. c. 41, s. 19.



Not Tenant.
liar. (1) The minister does not
appear to have been reciuired to
reside in the house ; (2) it was not
the house of the stewards ; (3) he
actually paid the rent to the land-
lord. (See reuuxrks of Willes, J.,
in the following case.)

niiite V. Ikuik}! {im\), 10 C. B.
N. S. 227. riaintiff ap].ointed
librarian and storekeeper on these
i<ivn\s, inter (did : that the person
to be appointed should liave pre-
mises, rent and taxes free, in a
good situation ; that £35 per cent,
should be allowed to the store-
keeper on all biioks sold out of the
shop, but not on donations or sub-
scrijitions, he making such arrange-
ments with booksellers, agents of
the society, as the committees
should from time to time deter-
mine. To carry on a retail busi-
ness in other New Church works
and general literature for his own
benefit. The society had pur-
chased the lease, which was as-
signed to trustees for it. Held,
that no tenancy existed. In the
view of Willes, J., " no tenancy in
the premises even to the extent of a
tenancy at will ever did vest in the
l)laintitf." The agreement was one
of service, and it made no diti'er-
ence tliat as a part of the remunera-
tion he was to have lil lerty to carry
on his own reUiil business. " I
can quite conceive a case such as
this, where the representatives of a
society might go to a jierson having
already a shop where he was carry-
ing on business, and agree with
him to become their agent for the
sale of their particular publications,
and to pay him a certain salary for
his services, and in addition to pay
the rent and taxes of the premises,
and where a (luestion might arise
whether by this arrangement an
interest in the sho]) Aested in the
society. The proper answer in
such a case would seem to me
to be that it avouKI not."

R. v. SpurrcU (18G5), L. R.



74 IHK LAW OF MASTEli AND SERVANT.

Tenant. Not Tknant.

1 Q. B. r-2 ; 35 L. J. M. C. 74
A Imiliit' of a farmer who occupied
a cottage belonging to his master,
without jtaying rent, in part re-
muneration of his services, not a
" substantial householder" withiii
43 Eliz. c. 2, s. 1.

Fox V. JJalbij{l874), 10 L. R. C.P.
285. A sergeant of militia occupied
as such a house close to the pre-
mises in which the arms, &c., of
the corps were stored. The house
was assigned to him by the com-
manding olhcer as a place to live
in ; and if he left it without the
permission of his othcer, he
would be guilty of a breach of
discipline. He had '2s. 4(1. per week
deducted out of his pay, as occupier
of the house ; bi;t he would not
receive the 2s. 4d. extra if he re-
sided elsewhere. He could perform
the duties required of him equally
well if he were living elsewhere,
wdiich he might do witli his otiicer's
pernussion. Not tenant within
s. 3 of 30 & 31 Vict. c. 102.



HIRING AND SERVLCK AND SIMILAR CONTRACTS.



75



APPENDIX C.



Partner.

(h-ace V. Smith (1775), 2 \V. Bl.
9.98.

JFauoh V. Carver (1793), 2 H. BL
235. Two shipping agents agreed
to sliare in certain property, tlic
profits of thL'iv respective commis-
sions and discounts on tradesmen's
bills ; held liahle as partners to
those witli whom either contracted,
though the agreement jjrescribed
that neitlier .should be answerable
for the acts or losses of the other.

Dnj V. Bosicell (1808), 1 CamiJ.
329. Action by B. for work and
labour in regard to the repair of
a lighter. Ellenborough, C J.,
directed the jury, that if R., the
sole owner, and B., agreed that the
iiett profits glionld be cqu.aUi/ divided
ammiij them, they were partners in
the concern, so as to be liable to
tlurd parties ; but not so, if the
agreement were to give half the
gross earnings, that being only a
mode of paying wages of labour.

Eoyparte Hamper (1811), 17 Ves.
403.

Cheap V. Cramond (1821), 4B. &
Aid. 6(53. Merchants in London,
wlio became bankrupt, recom-
mended consignments of goods to
a house abroad. It was agreed
that all commissions on the sales
of goods recommended or " in-
liuenced " by the one house to the
other sliould be equally divided
without allowing a deduction for
expenses ; the bankrupts were
partners qiwacl hoc with the firm
abroad.

Heyhoe v. Burge (1850), 9 C. B.
431. A. and B. agreed "for
services performed," to give to C,
the defendants, one-fourth part of
the clear profits arising from a
contract for making a certain rail-
way ; C. liable as a partner to tlnrd
persons.



Not Partner.

Wilkimon v. Fraaier (1802), "4
Esp. 182. Action Ijy seaman for
wages; contended tliat lie was a
])artner on the ground that the
Ijroduce of the voyage was to be
tlivided in certain proportions ;
iu)t a partner.

Heaketh v. Blanchanl (1803),
4 East, 144. A. having neither
ready-money nor credit, proposes
to B., the plaintiff, tliat if he will
order along with A., certain goods
to be sliipped on ajoint adventure,
B. shall have half of any proht
for his trouble. B. ordered the
goods on their joint account and
afterwards paid for them ; no
partnei'ship between them, though
B. as a partner was liable to third
persons.

R. V. Hartleij (1807), R. & R. C. G.
139. Defendant employed to take
coals fromF.'s colliery and sell them ;
to be paid for the labour by allow-
ing him two-thirds of the difference
between the price at which he sold
them and the price charged at the
colliery ; a servant and not a
partner.

Mair v. Glennie (1815), 4 M.
& S. 240. Mair, owner of a ship,
bound on a voyage to Havannali,
with a cargo belonging to him.
Young, the master of the ship,
was party to an agreement witli
Llair that Young sliould have in
lieu of all wages, primage, itc,
one-fifth share of the profit or
loss of the intended voyage, and
was to follow Mair's instructions.

Geddesx. 7Fo//«c(;(1820),2 BUgh,
270. The deed of copartnery of
a certain company was subscribed
by Geddes, who was to have one-
seventeenth share without advanc-
ing any capital. Article 3 stated
that, " in the said capital stock the
partners shall be interested in the



76



THE LAW OF MASTER AMD SERVANT.



Partner.
Greenham v. Grati (1855), 4 Irish
C. L. E. 501. Agreement be-
tween ]il;uiititl" and ck't'endant to
carry on the Lusiiiess of cotton spin-
ners ut defendant'.^ mill. Plaintitt"
to have the full control and
management of mill, and to give
his whole time to it ; to direct all
departments ; to liave the exclu-
sive power of dismissing servants ;
to be paid for his management,
&c., £150, and to receive one-fifth
part of the nett profits. Plaintiff
and defendant partners.



Not Partner.
profits or loss in the following
proportions . . . the said John
Geddes, one seventeenth share."
By an agreement referred to in
the articles of copartnery, he
was to receive £100 besides his
seventeenth share of the ]>rotit or
loss. The House of Lords, looking
to the whole of the articles, and to
the conduct of the parties, decided
that as between him and them, he
was not a partner.

Smith V. Watson (1824), 2 B. &
C. 401. A., a merchant, bought
wlialebone through B., a broker.
It was agreed that, as remuneration
for his troulde, B. should receive
one-fourth of the profits arising
from the sale, and bear an eightlv
proportion of the losses. Although
B. might be liable^to third persons,
there was no partnership with A.

Pott v. Eyton (1846), 3 C. B. 32.
Eyton's name appeared over door
of shop kept by J ones, and he re-
ceived per-centage of ]irofits ; goods
purchased in Eyton's name ; no
evidence of credit given to Eyton ;
not a partner as to third persons.

Eauiiniion v. Clarice (1846), 15
M. & W. 292. Plaintiff sold to de-
fendant liis business as a surgeon
and apothecary. Plaintitt' agreed to
continue to reside at his place of
business and to carry on the jno-
fession as before for a year, and to
introduce defendant to his j)atients.
Defendant to allow plaintitt' during
the year a moiety of the clear
profits ; the deed ilid not create a
partnershij).

tSiockcr V. Jiroclcelhaiik (1851),
3 Mac. & (I. 250; 20 L. J. Ch.
N. S. 401. Agreement between
]ilaintitt' and defendant that the
]>hviiititt' would serve the said
"partners •"' as " manager," and that
tlie ]ilaiiititr should have the con-
duct and management of the busi-
ness, and should receive for his
services such a sum as would be
equal to £40 per cent. u\Hm the nett
profits ; no partnership existed.



HIRING AND SERVICE AND SIMILAR CONTRACTS. 77

Partner. Xot I'artner.

li. V. M'orth-,1 (1851), 21 L. J.
M. C 44. Deri-mlant entered into
an a,i,'reement "to take charge; of
tlie gli'be-laad of tlie Rev. .J. \',. 15.
Clarke ; his wile undertaking; tin;
dairy and ]>onltry, &c., at lox.
a - \veek, till JMicliaelmas, lsr)0, and
afterwards at a salary of 1,'2.'3 a
year and a third of the clear
annual jn-ofit, after all expenses
of rent, rates, labour, interest
on capital, &c., are paid, on a fair
valuati(jn made from Micliaelmas
to Michaelmas. Three months'
notice on either side to be given,
at the expiration of which time the
cottage to be vacated byWortley" ;
* defendant and his master not

partners inter se.

Andreu-s v. Purjh (1854), 24 L. J.
Ch. 58. Plaintiff employed the
defendant to obtain orders for
him, the plaintiff allowing to the
defendant a commission of 15 per
cent, on the gross amount of prohts.
The defendant carried on the busi-
ness with the plaintiff, but his
name was not joined with that
of tlie plaintiff ; no partnership
inter se.

Coxv.Hichnan (1860), 8 H. of L.
267. S. & S., having become em-
barrassed, assigned their property
to trustees, and empowered them
to carry on the business, and to di-
vide the income rateably among the
creditors. Held, no partnershij)
created so as to make creditors-
liable to third parties.

E. V. MacdonaUl (1861), ,31 L.
J. M. C. 67. Cashier and col-
lector of a firm, received in addition
to fixed salarj- a certain per-centage
on profits ; was not liable to losses,
and had no control over business ;:
a servant.

Boss V. Parhjiis (1875), L. P. 20
Eq. 331 ; 44 L. J. Ch. 610 ;
30 L. T. 331 ; 24 W. P. 5.
Agreement between plaintiff" and
defendant to carry on under-
■\vriting business in the name of
defendant ; all policies, losses, and



78 THE LAW OF MASTER AKD SERVANT.

Partner. Not Partner.

averages to T)e .signed uiid settled
by defendant, or Ijy tlie ]ilaintiir as
his agent. Plaintilt' to be ])aidor
allowed a salary or sum vi £\!'^0
per annum, ami one-filth of tlie
profits ; plaintitl to keep the books
of accounts, he obtaining such as-
sistance from time to time as he
may lind neces.sary, subject to the
approval of the defendant ; i)lain-
titf not to bear any loss; contract,
one of hiring and service and not
of ])artnership.

See also BuUen v. t<lai)-ji (18G5),
L. R. 1 C. P. 8(i ; and Molhn v.
Court of Wards (1872), L. E. 4
P. C. 419.



HIRING AND SERVICE AND SIMILAR CONTRACTS. 79



APPENDIX J).

In Roman law the hiring of land, and tlic law ot master ami servant
are alike treated under the head of locatio-rondactio. (Joulrattts for the
labour and services of freemen for reward i'ell under the subdivisions —
locatio-cumhtctio opcmrnm or (qKris. As the landlord was the locator of
a farm and the lessee the conductor, so the servant was the locator opera-
ram, mmX the master the conductor operarum. If a workman had to do
something in respect of goods or chattels supplied to him; «.//., if he
had to weave materials into cloth, he was called conductor opcris, and the
owner of the materials was locator operis.

This highly artificial classification is maintained in systems of law which
are closely connected witli the Civil Law ; see French Code Civil III.,
8, i., and Pothier, Louaijc, 393. This classification is pi'eserved in the
Scotch law ; and it seems to have led to the borrowing from the law of
huidlord and tenant of certain rules and applying them to the hiw of master
and servant. Probablj^ the doctrine of tacit relocation has been cari-ied to a
degree which would not have been done if Scotch judges had not had tlie
decisions in regard to landlord and tenant present to their minds. This
classification is to be found in some modern codes, — c.f/., it is found in the
Code of Louisiana ; see III., 9, i. — though the relation of master and
servant is also dealt with under head of " Persons," I., 6.

A large nunil ler of the present varieties of contracts of service are almost
unknown in a simple state of society. In early works, such as Viner's
•'Abridgment," almost the only contracts of work and laliour treated of
are contracts between master and servant. See Bacon's "Abridgment,"
V. 333, and Blackstone I., 14. In a more complicated society this form
of contract became less imjioTtant ; contracts for work and labour,
contracts of atfreightment, or contracts of agency take its i)lace. In one
of the most recent measures of codification, the " Indian Contract Act,"
the relation of master and servant is not dealt with sejjarately ; it is
regarded as a form of agency. In the (!ivil Code of the State of New
York, the relation is chiefly treated of under the head of " Employment,"
along with factors, brokers, earners, agents, &c.

No good seems to be gained by merging the contracts of hiring and
service in contracts of letting land. There are few ]n'operties of im-
jiortance common to the two contracts. Nor is it expedient to merge the
former in contracts of agency. Part of the law of master and ser\ant
relates to a certain status, and may be suitably dealt with along with
.such conditions as guardian and ward, parent and child, husband and
wife ; see Bentham's " Principles of the Civil Code," vol. i. 343. Tliis
part, which in early times was the most important, still survives.
Another part, which has assumed pre-eminence in modern time<, belongs
to the law of agency. In this book it has been found almost inipossit)le
to keep separate the contracts of hiring and service projierly so called
from certain contracts of work and labour. Several modern Acts of
Parliament— c.f/.. Employers' and Workmen Act, 1875, sect. 10, — make
no clear distinction between the two.



80 THE LAW OF MASTEH AND SERVANT.



APPENDIX E.

Possession by Servant.

The sul)joct of possession liy servants has been the cause of much
confusion and perpkwity in criminal hiw. It may be expedient to <jive
the outlines of the liistorv and g^rowth of the law. English lawyers had
given definitions of larceny which implied wrongful gaining jwssession
of chattels ; and the history of the matter is the history of a long
attempt to reconcile this with the necessities of society. Bracton's
definition (iii. c. 32), which is almost identical with that found in the
Institutes (iv. 1), makes the offence turn on the intent — rnnfractatio rei
aliewn fraudulentd, cum aniino ftirandi. But it came to be understood
that trc^pasif, or wrongful interference with possession, was essential to



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