John Macdonell.

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

. (page 15 of 77)
Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 15 of 77)
Font size
QR-code for this ebook

305 ; 26 L. J. Ex. Si, as to secretary accordance with the 91st section.



Agreements for tlio liire of labourers, artificers,
" manufacturers," menial servants, and sailors coasting
from port to port in the United Kingdom do not
require to he stamped (a).

Agreements, as a rule, require to he stamped ; and no
document, letter, or contract, can be admitted in evidence

(ffl) Agreoinciits with seamen mado
in forms sanctionetl by tlie l^ioard of
Trade are also exempt from stamp
duty, 17 & 18 Vict. c. 104, ss. 9.
149. E. V. St. PimVs, Bedfoid
(1795), 6 T. E. 452. (An apprentice
not within the exemption.) Dakm v.
JFatson (1841), 2 Cv. k Dix, 224.
(Quoted in Tilsley on the Stamp Acts,
p. 45 ; a clerk not within exception.)
JVilson V. Zulutta (1849), 14 i}. 15.
405 ; 19 L. J. Q. B. 49. (A stoker or
fireman on a steamship, who was bound
to obey tlie orders of the engineers,
held to be a labourer or artificer.) Jl.
V. Wortldi (1851), 21 L. .1. U. C. 44 ;
15 Jur. hs7 ; 2 Den. L\ ('. 33:3.
(Man employed to look after glebe
land, his wife undertaking the care of
the dairy and poultry ; a labourer. )
Bishop V. Letts (1858), 1 F. & F. 401.
(Overseer in a printing office an arti-
ficer.) I am not aware i f any decision
explaining what is meant by " liiie of
any manufacturer," nor do I know
what it means. There have been many
discussions as to whether a contraet
was for the sale of goods or for work or
labour. This (luestion has already
been considered with reference to the
Statute of Frauds. Here maj' be
also cited. Pinner v. Arnold (1835\

2 ('. I\l. A: IJ. 613. (Agreement
between ])laintiff, a ])ressniaker, and
defendant, copjierplate printers, to
make an eagle press ; the agreement
within the third exemption.) Hughes
V. Budd{\8A0), 8 Dowl. 478. (Agi-ee-
nient by jilaintiff to (piai n- a sufficient
([uaiitity of . - tone at ('. to complete a
dry wall : imt within the exemption,
and ]ilaiiititf unable to recover, though
the defendant had had the benefit of
the work.) Chanter v. Dickenson
(1843), 5M. & G. 253. (Memorandum
as follows: "Send me a licence to use
two of ( 'banter & Co. 's patent i'urnaces,
to be supplied to a singe ])late and
cloth boiler, for which I agree to pay
Mr. Chanter or his order as ag. , £25 as
a patent right, and which is to include
iron-works, fire-bricks, and labour ;
engineers' or furnace-builders' time to
suj)erintcnd or fix the above order, to
be paid 6.s. per day, &c. " ; not within
the exemption.) See also /'oi«/<o?i v.
Wilson (1S5S), 1 F. & F. 403. (A
contract for hire of a servant, &c.,
may be mixed up with a contract for
some other purpose, and in this case
it will be necessary to determine what
is the primarv object.) Smith v.
Cotor (1819), 2 B. & Aid. 778.



unless it be stamped. The schedule to the Stamp Act of
LS70, 33 & 34 Vict, c. 97, exempts: — (1.) Agreement or
memorauduni the matter whereof is not of the value of £5.
(2.) Agreement or memorandum for the hire of any labourer,
artificer, manufacturer, or menial servant. (3.) Agreement,
letter, or memorandum made for or relating to the sale of
au}^ goods, -wares, or merchandise. (4.) Agreement or memo-
randum made between the masters and mariners of any ship
or vessel for wages on any voyage coastwise from port to port
in the United Kingdom.

These exceptions are taken from the Stamp Act, the 55
Geo. III., c. 184, and the decisions upon that statute illus-
trate the later Act. The chief of them are stated below.

The Stamp Act (33 & 34 Vict. c. 97, s. 39) of 1870 states
that —

Every writing relatiiiL; to the service or tuition of any appren-
tice (/*}, clerk, or servant placed witli any master to learn any profession,

(/') As to -vvliat iU'C contracts of
a])prenticesliip, see cliap. III. The
followiur; arc some of the cliicf deci-
sions with resjtcct to duties ]iaYable
on indentures of apprenticeship : Ji.
V. Lcuih (1828), 8 B. & 0. 24 7. (An
indenture to two nia.sters to serve
them consecutively in two di.stinct
trades for })eriods of four and three
Years, reipiires only one stani]). )
J!. V. L/C (]8:n), 2 H. i<c Ad. 8(J7.
(Consideration for assignment of a
jiarish a)>]irentice need not be set out. )
J{. V. Church Jlulme (]Si\), 5 B. &
Ad. 1029 b. (An iudentine nnist W
stam])ed with the nd-vdlorcvt duty
within the time prescribed by 8 Ann,
c. 9, ss. 36, .'57, and 88.) Morris v.
Cox (1841), 2 M. i: (1. 6.09; 5 Jur.
367. (An assignment with new terms
inserted does not reipiire new

Co.NsiiiKit.vnoN — Valid.— 7l. v.
Waltoji (1790), 3 T. K. .515. (Aj)-
prentice to provide himself meat,
drink &c. ; the master covenanted to
makeweekly jmymentsto apjirentice ;
the justices not having found tiiat the
jmyments were not eipiivalcnt, no
additional duty payable, j /,'. v. St.

I'rtro.r (1791), 4 T. K. 196. (Pay-
nunt to master's mother not men-
tiimed in indenture.) 1!. y. Lcighton
(1792), 4 T. 1!. 732. (No duty pay-
able when meat, drink, lodging,
clothes and washing ]irovided for ap-
prentice .and no money given to
master.) Also R. v. I'urfsia (1776),
Bur. S. C. 834 ; /.'. v. Wantrnjc (1801),
1 East, 601. (No duty when master
stipulates for ])art of apprentice's
wages, all of which belong to the
master in the alwence of agreement.)
n. V. Jylishiiri/(lS3-2), 3 11 <t Ad. 569.
(Indenture not liable to duty when the
master covenanted to find t lie appren-
tice necessaries, and the t'atiier of the
apprentice agreed before the execu-
tion of the iiiilenture to liiid the ap-
lirenticc clothing and washing.) R.
V. liriiiffurd (1813), 1 M. & S. 151.
(No (id-valiircin duty i)ayable when no
])reniium payable, and tlie ajiprentice
covenanted to allow ins master 2.v. a
week, and the apprentice was to have
wages and to provide for himself) li.
v. Loir (1829), 3 C. & 1". 1)20. (Not
the exact sum originally agreed to bo
paid, but the sum actually jiaid,
in.serted in tlir indenture.) 7.'. v.



trade, or employment (excci)t articL's of clerksliip to attorneys and
others hereby specifically charged with duty), is to be deemed an instru-
ment of apprenticeship.

Section 40. The full sum of money, and the value of any nthcr matter
or thing, jjaid, given, or assigned, or secured to be paid, given, or assigned,
to or for the benefit of the master with or in respect of any apprentice,
clerkj'or servant (not being a person bound to serve in order to admission
in any court), is to be fully and truly set forth in an instrument of
apprenticeship : and if any such sum, or other matter or thing be paid,
given, ^assigned, or secured as aforesaid, and no such instrument be
made, or if any instrument be made and such sum, or the value of such
other matter or thing, be not set forth tluaein as aforesaid, the master,
and also the apprentice himself, if nf lull age, and any other person
being a party to the contract, or by whom any such sum, or other matter

Bourton (1829), 9 B. & C. 872 ; 4 M.
& R. 631. (LJndertakiiig given to
master by a married woman witliout
knowledge of her husband when
binding her son, that £10 should be
inserted in indentinv as premium ; a
private promise that the niastershould
receive more and a further [)a\ nieut ;
the indenture valid, there being no
valid contract to pay more than £10.)
R. V. Harrington (1836), 4 A. & E.
618 ; 6 N. cV M. 165. (Indenture not
void by tlie insertion of wrong date.)
Slwplicrdx. Hall (1812), 3 Can'ip. 180.
(£20 agreed ; £19 19s. 6^/., actually
])aid and inserted as consideration.)
Haakinsx. Cluttcrbuck [ISiS), 2 0. k
K. 811. (A sum of £99 lO.v. ]Kiiil, and
stated to be the consideration. Siuud-
taneously with indenture a written
agreement between master and appren-
tice's uncle that £150 more shoidd he
paid for the board of the apprentice,
'and £50 actually p.iid. Held cDUsi-
deration truly inserted.)

Not Valid. — Jl. v. Bnildun
(1832), 3 B. & Ad. 427. (Considera-
tion stated in indenture £4, private
promise by mother to pay, and actual
])ayment of £1 additional ; indenture
void.) jR. V. Ahicrsham (1836), 6
N. & M. 12 ; 4 A. & E. 508 ; 1 H. ^
W. 694. (Indenture stated consi-
deration of £10 to be paid by the
trustees of a charity. Previous to
the agreement a promise by the a])-
prentice's grandfather, who was no
party to the deed, to pay an addi-
tional £25 ; £15 actually pnid, ap-

parently without the knowledge of

Recoveky of Premii'.m.— .SM-cs
V. Tiritehen (1818), 8 Taunt. 492 ; 2
Moore, 538. (Plaintiff executed in-
denture of apprentice.sliip of her son,
and ])aid [)reniium. Indenture did not
state consideration, and was not
stamped. Held tliat the plaintilf
could not recover the consideration
paid, she having notice of the fraud
on the revenue. ) JFcstlalr. v. Adams
(1858), 5 C. B. N. S. 248 ; 27 L. J.
C. P. 271 ; 4 Jur. N. S. 1021. (Ac-
tion upon 1.0. U.; defendant on the
apprenticing of his son to plaintitf
by a charitable society agreed to
give to plaintitf, in addition to a
premium to be paid by the .society,
four I.O.U.'s for £5 each, payable at
intervals of a year. After the expira-
tion of term of apprenticesliip plaintitf
sued on the I.O.U.'s. Tlic action
maintainable, though indenture void.)
Maaa v. Lrnt (1830), 10 15. & L'. 877 ;
at N. P. (1828), 1 M. & M. 240.
(Action by indorsee of bill of ex-
change against acceptor. The bill was
given for premium £30, wluch the
latter agreed to pay as premium of
his son. After the apprentice had
served tive months it was discovered
the staTnp was insufhcicnt, and the
apprentice left his master's service.
Held no answer to action by payee
against acceptor.) See also Jackson
v. Waricick (1797), 7 T. R. 121 ;
Ma€leod v. Sinclair (1738), M. 585 ;
Donaldson v. FuHon, i£. 5S7.


or thill},', is jxiid, yiven, assigned, or secured, shall forfeit the sum of
twenty pounds, and the contract, and the instrument (if any) containing
the same, shall be null and void.

The same Act (Schedide of Duties) imposes a duty, where there
is no j)reiiiium or consideration, of 2s. Gd. "In any other case — for
every £'), and also for any fractional part of £5, of the amount or value
of the jiremium or consideration, o.s."


" (1.) 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 i)ublic charity, or pursuant to any Act for the regulation of parish

" (2.) Instrument of apprenticeship in Ireland, where the value of the
premium or consideration does not exceed £10."

See also 17 & 18 Vict., c. 104, s. 143, as to indentures of
apprenticeship to the sea service.

By the Customs and Revenue Act of 1869 (32 & 33 Vict.,
c. 14, s. 18), a duty of 15s. is payable " for every male

According to sect. 19, sub-sect. 3, " the term ' male servant ' means and
includes any male servant employed either wholly or partially in any of
the following capacities; that is to s^ny, mnitre d'hStel, house steward,
master of the horse, groom of the chambers, valet de chambre, butler,
imder butler, clerk of the kitchen, confectioner, cook, house porter,
footman, page, waiter, coachman, groom, postilion, stable-boy or helper
in the stables, gardener, under gardener, park-keeper, game-keeper, under
game-keeper, huntsman and whipper-in, or in any capacity involving the
duties of any of the above descriptions of servants, by whatever style the
person acting in such capacity may be called : (4.) Every person who
shall furnish any male servant on hire sliall, for ih'- purposes of this Act,
be deemed to be the employer of such servant : (o.) It shall not be neces-
sary for licences to be taken out in the following cases, viz. : — By any
officer in Her Majesty's army or navy for any servant, being a soldier in
the army or a person actually borne upon tlie books of a ship, and em-
ployed by such officer in accordance witli tlie regulations of Her
Majesty's service : By any licensed retailer of exciseable liquors or
licensed keeper of a refreshment house for any servant emidoyed by him
solely for the ])urposes of his business, such servant being the only male
servant employed l)y him : By any person who shall iiave made entry
of his ])reniises in accordance with section twenty-eight of this Act for
any servant employed by him at such premises in the course of his

STAMPS. 1-')

trade, other than a servant employed to drive a carriage with any liorse
let to hire for any period exceeding twenty-eight days ; provided that
such person shall have complied with all the provisions contained in the
said section : By any person duly licensed by ])roper authority to keep
or use any public stage or hackney carriage for any servant necessarily
employed l)y him to drive such stage or hackney carriage, or in the care
of such stage or hackney carriage, or of the horse or horses kept and used
by him to draw the same." The Act imposes a penalty of £20 for not
taking out a licence (sect. 27). Every person who shall furnish a servant
on hire is required to enter in a book the name of the servant and the
name and address of the person hiring such servant (sect. 29).

The Court of Exchequer, in Spencer v. Sheerman (d),
decided that hotel-keepers must take out licences for waiters
engaged only for two or three weeks. But the 36 & 37
Vict., c. 18, s. 4, annuls the effect of this, by enacting that it
shall not be necessary for a licence to be taken out under
82 & 33 Vict., c. 14, by any hotel-keeper, retailer of intoxi-
cating liquor, or refreshment-house keeper, for any servant
wholly employed by him for the purposes of his business.

(tZ) (1871) 23 L. T. 873. See also 39 Vict. c. 16, s. 5, as to " male servant."



Agreements of liiring and service require consi-
deration ill order tliat they may be enforced.

Mandate, that is, a gratuitous undertaking- to perform
services, is of much less consequence in Englisli law, than it
is in Roman law {a). The former has to do mainly with
promises to serve for some consideration. If A, promises to
serve B., and B. does or gives or promises nothing in return, no
action (unless in the case of contracts under seal) lies ; the
maxim t^.v rivdo pdcio -non orifui- actio applies (6). Con-
sideration embraces many things besides money. It will not
include the ties of relationship or friendship, or merely moral
duties. To support a promise it is, however, enough that there
should be, to quote the judgment of the Court in Currie v.
M'mi (f), " some right, interest, profit or benefit accruing to the
one party, or some forbearance, detriment, loss or responsibi-
lity, given, suffered, or undertaken by the other." The con-
sideration need not be such as in fairness would be adequate ;
that is a matter for the parties to the agreement. The
Courts will not, for example, inquire whether a servant's
wa^es are too low, or whether the agreement of hiring is too
much to the advantage of one of the parties {<!). The consi-

(a) Hiiiiti'v's RoniiUi Law, .'lOS. j^'ovi-niois, could recover no rcumiie-

(b) ]*roTnis(^ by directors to work ration from the company unless by
gratuitously not bindinf; ; Lanihrrtv. virtue of an express resolution under
Buenos Jyrcs C<>. (18G9), 18 W. R. seal.

180 In Dun.ston v. Ivipirinl Gas (c) (187")) L. 11. 10 Ex. 162 ; 44 L.

Light Co. (1831), 3 B. & Ad. 125, it .T. Ex. 99.

■wa-s held that directors of a company, {d) Ililrhcoch v. Cokcr (1837), 6 A.

not being servants, but managers or & E. 438.


deration cannot consist of byg'onc transactions, unless any-
thing was done at the request of the person making the
promise (c). A promise made in respect of a past matter may
be induced by gratitude for what has been done ; the trans-
action is not the less, in a legal point of view, purely

If the contract be within the Statute of Frauds, the con-
sideration must be stated in writing (ce).

In many contracts of service the consideration is not ex-
pressed. The parties have in their minds certain usages.
They do not state that which they assume need not be stated,
and they are content to take for granted many of the terms
of their agreement. Questions of difficulty frequently arise
as to whether there exists a contract the consideration of
which is implied or may be fairly inferred, or whether there
is a mere promise which is not binding owing to tlie absence
of consideration. In other words, is there mutuality ? A.,
for instance, agrees to serve B. for seven years. Does B.
thereby by implication agree to retain A. in his service
for the same period ? The current of the authorities is, as
will be seen from Appendix A., far from uniform ( /'), The
Courts will not allow an action where A. is not bound to serve,
and B. to retain him in service. No doubt, if A. enter upon his
duties, and perform certain work, the law will imply a promise
by B. to pay, and A. will be entitled to recover (g). But when
B. seeks to compel A. to fulfil an agreement to work, it must
be shown that there is an obligation on the part of B. to retain
him in service. Thus, in Dunn v. Sayles (h), the Court refused
to imply a covenant to retain the plaintiff in the service of

(e) Leake on Contracts, 19, and and anotlier makes a promise to sup-
authorities there cited. port it. See as to want of mutualitj'-,

(cf) Wain V. irarHcrs (1804), Mmior of Kiddcrmitisterv. Hardivid:

5 East 10. (18'73), L. K. 9 Ex. 13 ; Arnold v.

(/ ) Tliere is much ambiguity as to Mayor of Poole (1842), 4 M. & G. 896.

the meaning of mutuality : Cromp- See Appendix A, for chief decisions

ton, i., in Whittle v. FranJcland on this ([uestion.

(1862), 2 B. &, S. 55. Here it is (g) See Elsce v. Gaticard (1/93),

taken in the sense of mutual pro- 5 T. R. 143.

mises ; one party makes one promise, {h) (1844), 5 Q. B. 685.


the defendant for five years, when it was agreed by deed that
the plaintiff's son should continue with the defendant as an
assistant surgeon dentist for five years, and that the de-
fendant should pay weekly wages. This decision has been
much criticised ; and the tendency in recent cases has been to
imply a promise on the part of the master to retain " when-
ever there is something not expressed which it is clear to
all men of ordinary intelligence and knowledge of business
must either have been latent in, or palpably present to, the
minds of both parties when the contract was made" (i). Thus,
when A. agreed to serve B. for seven years on certain terms,
and B. to pay his wages so long as he was so employed, it was
held that B. was bound to employ A. for seven years (/.).

While the Courts will often presume a promise to hire or
retain in service, though it be not actually expressed, they
will sometimes imply a right to terminate a contract of hiring
or service, though no such right be expressed. Suppose that
it is agreed between A. and B, that for seven years, or so
long as A. shall continue to carry on business in Liverpool,
A. shall be the sole agent there for the sale of B.'s coals, and
that B. shall not employ any other agent there. Suppose
further, that it is a term of the agreement that if A. does
not sell a certain amount a year, or if B. cannot supply a
certain amount a year, either party may determine -the agree-
ment; and that B. sells the colliery at the end of four years.
Has B. been guilty of a breach of contract ? Such were the
chief facts in Rhodes v. Forwood (l). The House of Lords,
reversing the decision of the Exchequer Chamber and affirm-
ing that of the Court of Exchequer, held that no action
Avould lie against B. for breach of contract. The House of
Lords thought that there was no implied obligation on the
part of B. to carry on his business and not to sell it for seven
years. It would be different if the agreement were in

(i) Brett, J., in Thorn v. Mai/or of {k') Ilartlyv. Cummings. See Ap-

Lmdwi (1875), L. K. 10 Ex. 123 ; 44 iK-nUix.
L. J. Ex. 70. 'J) (1876), L. K. 1 Ap. 256.



effect, that the business should be carried on in order that
the profits might be remuneration for advantages ah-eady
received. In such circumstances, it would be obviously
unfair that one party should be able to cast off all obliga-
tions to the detriment of the other. Such was the case in
Mclntyi'e\. Belcher {ht). The plaintiff, a surgeon, sold his
business to the defendant. It was agreed that he should in-
troduce the defendant to his patients, and should receive for
the first four years one fourth part of the gross earnings. In
such a state of facts it was held that there was an implied
covenant on the part of the defendant to continue the prac-
tice {m).

(to) Tlie following are the cliief de-
cisions : Burton v. Great Northcni
By. Co. (1854), 9 Ex. 507. (By
agreement on 1st October, 1851,
plaintiff luulcrtook to provide all
waggons, horses, kc, necessary for
the cartage of all grain, &:c., between
Hatfield and Ware, that might be pre-
sented to him, at 5s. a ton. " It is
mutnally agreed that this agreement
shall continne in force for the period
of twelve months from the date
hereof." The company gave notice
that the arrangement would cease after
1st April, 1852. Held that the only
contract by defendants was to pay the
stipulated i)rice of such goods as might
be })reseiited.) London, Lcitli, and
Glasgow Shipping Co. v. Ferguson
(13th Nov., 1850), 13 D. 51 ; 23 Jur.
4. (An agent paid by the company by
a commission on profits not presumed
to be engaged from year to year ; tlie
company entitled to discontinue their
trade without giving any previous
notice or any compensation for the
loss of his situation.) Mclntyrc v.
Belcher (1863), U C. B. N. S. 651;
32 L. J. C. v. 254. (Agreement for
the sale of goodwill of practice of a
surgeon ; the purdiaser to have de-
livered up to him the, and to
have sold to him horse, drugs, kc,
for £17 5.s\ ; the vendors to pa)' rent
and taxes up to a certain date : the
purchaser to pay on condition of the
premises, in respect of each of the four
following years, if he should be living,

at end of each respective year, one-
fourth part of the receipts and earn-
ings. Held an im])lied covenant by
purchaser to do nothing to prevent
the receipt of earnings. " If I grant
a man all the apjdes growing ujion a
certain tree, and I cut down the
tree, I am guilty of a breach."
AVilles, ,T.) Stirling v. ifaitlan/l
(18(54), 5 ]'.. &S. 840. (An insurance
company covenanted for valuable con-
sideration with C. D., to appoint him
their agent in Glasgow, together with
A. B., and if A. B. .should be dis-
placed from the agency, to pay C. D.
a certain sum. The company, liaving
transferred their business to another
comjiany, were wound up and dis-
solved. The sole remuneration was
by commission. Held that the
plaintiff was "displaced" within the
meaning of the contract. " I look
on the law to l>e that, if a party enters
into an arrangement wliich can only
take effect by the continuance of
certain existing state of circum-
stances, there is an implied engage-
ment on his part that he .shall do
nothing of his own motion to put an
end to that state of circumstances,
under wliicli alone the arrangement
can be operative." Cockburn, C. .1.)
Ex parte Mnclurc (1870), L. K. 5 Ch.
Ap. 737 ; 39 L. J. Ch. 685. (A. en-
tenul into an agreement with an in-
surance com[)any to act as their agent
for live years, and to transact no other
insurance business without the con-


A similai' question arises as to whether there is an obliga-
tion on the part of the master to find work for his servant.
Where the contract of hiring merely contains an undertaking
to pay stipulated wages in proportion to the work done, there
is no implied obligation on the master's part to find work ;
though the disposition is to construe contracts of doubtful
significance as to this into an agreement on the master's part
to enable the servant to earn regular wages (p). On this
subject the words of Cockburn, C.J., in Churchwcuxl v.
Queen (q), are of value. "Where the act to be done by
the party binding himself can only be done upon something
of a corresponding character being done by the opposite
party, you would there imply a corresponding obligation to

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 15 of 77)