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

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112. 919 ; 33 L. J. C. P. 259 ; 12 W. R.

(r) Menial — Noidan v. Jhlctt 961 ; 10 L. T. K. S. 531. (A hunts-

(1835), 2 C. M. &, Iv. 54 ; 1 Gale, man a menial servant, thougli liired

72; 5 Tyr. 709. (A head gardener for a year.) Xor Menial — Toddx.

-with several under gardeners subject Kcrri'ch (1853), S P^x. 151 ; 17 Jur.


The question is one of extreme difficulty, especially when
the situation of the servant is of a novel kind. The cases
cited below show tliat living in the master's house is not a
decisive test. If the nature of the service bring a person
into close and frequent contact with his master, where, to
quote Erie, C.J., in Nicoll v. Greaves (s), " the service is of
such a domestic nature as to require the servant to be
frequently about his master's person, or as in the case of the
gardener about his grounds," the servant is generally con-
sidered a domestic or menial servant. Having regard, how-
ever, to the common use of the Avord " menial," and also to
the judgment of the Court in Todd v. Kerrich (t), only
servants holding an inferior situation in a household would
be regarded as menial servants.

No clear rule as to length of notice to be given to servants
other than menial or domestic servants exists. The custom
above stated does not apply to trade servants or servants
in husbandry (u), clerks (x), newspaper reporters (?/), or
governesses {<().

The question of duration of agreements is often one of con-
struction of the agreement of hiring. In an Irish case decided
in 18C1, where the agreement was, " I agree to serve Major
B. as steward from May 81st, 1858, for £80 per annum, &c.,
three months' notice required on each side," it was held that
tlie hiring was a yearly one, subject to be determined by
either party by giving three months' notice before the end of
the year (h). In Down v. Finto (c), the defendants, who had
established smelting works in Spain, offered to employ the
plaintiff as foreman, on the following terms : " I should require

lit); 22].. J. Ex. 1. (A ^'ovenicss (a) Lillaj \. Jilwin {IS4S), 11 Q.

iiif,'agi!(l at yt'iirly salary.) Tlic IJ. 742.

iiioiitli'.s waf(('s are for a calendar (.'■) JSccMnn v. Collycr (1827), 4

moiitli, and do not include board I'iiig- ^'''J ; JIuUman v. Boulnois

\vag(;.s. Hill, .!.. in Gordon v. Putter (1826), 2 0. & T. TilO.

(]8o9), 1 V. k V. ()44. As to ety- (//) WilliamH \. JhjrnciUZI),! X.

inoloiiy of "nionial," set; Nowlan v. k K. 177 ; 1 .hir. r>78.

./We/?, and Littn'''.s Oictionary, under (a) Twld y. Kerrich (1853), 8 Ex.

In-ad of Millie. ir>l.

(.v) Sec note (r). {'') Fon/an\. Ri(rkr,V2 Ir. C. L.495.

(0 See note (/•). • ; ('■) (1854), 9 Ex. 327.


you to cuter into an engagement to remain Avitli me for at
least three years, at my option. Salary, £2.')() per annum."
The Court thought that there was a yearly hiring, and
that " at my option," did not enable the plaintiff to ter-
minate the agreement at any time. " These words mean that
the defendants are to have the option of saying whether the
service shall continue for one, two, or three years."

In Broirn v. Sijrnons (d), there was an agreement to
employ the defendant as a commercial traveller at a yearly
salary, which was payable quarterly ; the agreement to " be
binding between the parties for twelve months certain from
the date hereof, and continue from time to time until
three months' notice in writing be given by either party to
determine the same." Transposing the words the Court read
the agreement as if it ran thus : " This agreement to continue
from time to time until three months' notice, &c., but to
be binding between the said parties for twelve months
certain." It was an agreement for twelve months certain
and no more. In Farher v. Ibbetson (e), there was an agree-
ment in writing to serve as agent or representative of a
manufacturer of woollen and mohair cloths, at a salary of
£150 a year, and a proviso that if at the end of the year
the plaintiff had done sufficient business the defendant
wo\ild make up his salary to £180. It Avas held that there
was nothing in the contract to exclude an usage to ter-
minate it by either party giving a month's notice.

This matter is often provided for by regulations of the
factory, mine, or workshop in which workmen are em-
ployed. When the contract is silent as to this point, the
period of notice or warning is to be governed by the usage or
the custom of the trade, profession, or business. Where
both custom and contract are silent as to this, it will be for a
jury to say what is reasonable in all the circumstances.

{d) (I860), 8 C. B. N. S. 208 ; 29 L. J. C. P. 236. On the other hand,
L. J. C. P. 251. see Pefn-y. StavcUy (1866), 15 L. T.

(c) (1858), 4 C. B. X. S. 346 ; 27 X. S. 275.



Thus in Jliscoxy.Batchellor(g), and Foxcdl v. International
Land Credit Co. (h), Byles, J., left it to the jury to say what
was reasonable notice in the case of an advertising agent
and a clerk.

In Creen v. Wright (/), the contract gave the defendants,
Avho were owners of a ship, power to dismiss a master abroad
Avithout notice. The Court refused to hold that a like right
existed when the master was in this country. "He was
entitled to some, and that is, to reasonable notice."

(g) (1867), 15 L. T. N. S. 543.

(h) (1867), 16 L. T. N. S. 637.

(0 (1876), L. 1!. 1 C. P. D. 591.
The Courts have sometimes refused
to follow the analogy of notices for the
expiration of tenancies, which must
be given so as to terminate at the end
of t h e current year. Thu s in Mi/an v.
Jenkinson (1855), 25 L. J. (J. B. H,
a schoolmaster was a|ipointcd, "at
the rate of £55 per annum." His
appointment was to be subject to
termination by three montlis' notice
from either partj'. The Court thought
that the notice need not be given so
as to terminate at the end of a current
year. In Berston. v. CuJbjer (1827),
4 Bing. 309, the Court refused to say
whctli'ir the rule as to notice in case
of tenancies was to be engrafted on
contiacts for the hire of servants.
In Kcin V. Hart (1868), 2 I. R. C. L.

138 ; 3 1. R. C. L. 388, the Court
had before it an agreement in which
the words were, "This agreement
shall stand good for tlie term of
six months, and six mouths' notice
from either side shall terminate the
agreement." The Judges thought
that the agreement was capable of
being terminated by a six months'
notice, expiring Jit any time after
first six months. The -same case
may be consulted as to what words
constitute a notice. See further as
to notice, Fawcdt v. Casli (1834), 5
P>. & Ad. 904 ; WilUams v. Bynir
(1837), 2K. & P. 139 ; 7 A. .t E. 177
(newspaper reporter) ; Brv.rliam v.
Wuf/staflc (1841), 5 Jur. 845 (chemist's
assistant) ; Turner v. Mason (1845),
14 U. k W. 112 ; Jfcfziicr v. BoUwi
(1854), 9 Ex. 518 (commercial


Yearly Hiring.

Bex V. HtochhriiUje (1773), Bur. S.
C. 759. Postilion .served lor a year ;
iiotliing said as to wages ; yearly-

Hex V. Macclesfield (1789), 3 T.
R, 76. S-rvaut hired for eleven
months at 10 guineas ; at the ex-
piration of the time told by his
master " You may as well stay on
an end in your place;" servant
assented ; second agreement a

KoT Yearly Hiring.

Bex V. l^'(//irt//( (17G9),Bur.S. C.
(!r)3. Glazier hired at the Avages of
(js. a week ; suuiiuer and winter.

]ux V. Neirtmi To)icii (IISS), '2,
T. K. 453. Oetler hired'" at 4.s-. 6d.
a week ; " wceklv hiring.

ii't.-c V. Udiham (1788), 2 T. R.
G22. Service for a year at so much
a week without fixing any time of
service ; no ycarlv hiring.

Jicx V. St. J'etcrs (17G3), Bur.



Yearly Hiring.

general liiriiig.

Rex V. i>caton (1784), Cald. 440.
Wages payable weekly ; i)roinise
to stay another year.

Rex V. Hirdbrooke (1791), 4 T.
R. 245. Labourer agrees to serve
farmer " at 3.s'. per week the year

Rex V. JLanprcston (1791), ") T.
R. 20"). Serve at so niueli a
week with liberty to irdvt on a
month's notice.

Rix V. L;ith (1793), 5 T. R. 327.
A husbandman served for a year ;
strong evidence of hiring for a year.

Rex V. Long WhaWm (1793), 5
T. R. 447. Service with the same
master for three years evidence of
hiring for a year, though servant
at first hired only for part of a vear.
See also Rex\. //n/f.s (1794), 5 T. R.
668; Rex v. JFor/a'W (1794), 5 T.
R. 506.

Rex V. Pendleton (1812), 15 East,
449. Hiring for a year presumed
from service for three years.

Rex V. Great Yarmouth (1816),

5 M. & S. 114. Hiring at weekly
wages, either ]>arty to be free to
part at a montli's notice ; held to
be a yearly hiring, though the case
stated that the servant let himself
by the week.

Beeston v. Colbjir {1827), 4 Bing.
309. Defendant entered jalaintiti's
service as clerk in 1793 ; was paid
quarterly in 1811 ; during last six
years the salary was paid montlilv.

Rex V. St. Martins (lS-28), \s
B. & C. 674. Yearly hiring of
a boots and tap-boy inferi-ed
from service for three years
and a quarter, and the fact that
the master had retained him after
the fortnight for which he had at
first invited him to stav.

Rex v. St. Andrew.'^ (1828), 8 B.

6 C. 679. Hiring at £1 a week
with a month's notice or a mouth's
wages ; vearlv hiring.

St if v. Cassell (1856), 2 .Jur. N.
S. 348. Contract by author to
write tales for a weekly publica-

NoT Yearly Hiring.
S. C. 513. Hiring at so much
and to part on a week's notice, not
a hiring for a year, tliougli servant
continued si.x years with lier

Rex V. I'ucJchrhurch (1804), 5
East, 382. Servant hired himself
in the first instance for eiglit weeks,
and afterwards to tlie same master
for less than a year at weekly
wages ; then entered into new
agreement witli same master at
weekly wages, nothing said as to
duration of service ; weeklvhiiing.

Rex V. Mitcham (1810), "12 East,
351. Hiring at so much a week
for as long time as master and
servant could agree ; a weekly

AV.r V. Jhdderhill (1814), 3 M. &
S. 243. Servant hiretl to serve for
weekly wages of -is. and board and
wasliing, excejit in the harvest
month, wlien wages to be 10s. (5d.
^ Rex V. St. Murij (1815), 4 M. &
S. 315. Hiring at so much a week
and 2 guineas for harvest ; not
yearly hiring.

Rex V. Rolvenden (1815), 1 M.
& R. 691. Ostler hired at so much
a week for the winter and so much
for the summer ; weeklv hiring.

Rex V Elsack (1785), 2 Bott, 203.
Maidservant hired "at Is. 4'1. a
week and board and lodging for
so long as they should want ; "
weekly hiring.

R. V. JFoodhursf, (1818), 1 B. &
Aid. 325. Agreement to serve from
Michaelmas to Michaelmas, and tci
make 70,000 bricks at a stipulated

Rexx. Christ's Parish (1824), 3B.
& C. 459. Boy entered service of
farmer for meat and clothes as
long as he had a mind to stop ;
hiring at will.

Re-c v. Warminster (1826), B.
& C. 77 ; 9 D. & R. 70. Hiring at
6s. a week for winter and 9s. a
week for summer, nothing being
said as to duration of service;

Rfx v. Ardinrjtcn (1834), 1 A. &



Yearly Hiring.
tioii, "extending over the period
of one year,'' to be paid i-'lO a week
for eacli niinilier; matter to be
supplied each week.

Turnrr v. Jt'ohinsuii (1S3;3), ."> B.
& Ad. 781). Foreman of silk manu-
facturers ; wages to be " at the
rate of £80* a year;" yearly

Faicait V. Cu^h (1834), f. P,. & Ad.
!)04. riaintitf entered the service
of defendant under the following
agreement : " Plaintiff engages to
pay defendant £12 lOs. per month
for the tirst year, and advance
£10 ])er annum until the salary
is £180, from the 5th of ]\Iarch,
1832 ; " contract for at least a

' Douii v. Pinto (1854), 9 Ex. 327.
See p. 170.

Brown v. Synions (I860), 8 C.
B. N. S. 208 ; 29 L. J. C. P. 251.
See p. 171.

J)avis v. Marshnll (1861), 4 L.
T. N. S. 216 ; 9 AV. R. 520.
Plaintiff, manager of a shop under
an agreement by wliich he was to
receive a salary of £30 payable
monthly ; hiring for a year.

Buchinyham v. The Sitrrcii and
Hants Canal Co. (1882), 46 L. T.
N. S. 885. Plaintiff appointed
engineer to defendants at a salary
of"£500 a year ; dismissed at a
three months' notice. A yearly
hiring ; plaintilf entitled to recover
salary for the unexpired portion of
the year.

Not Yk.vrly Hirixo.
E. 260. A. hired a sheplierd for a
term less than a year ending
Michaelmas, l!^25 ; he served for
a few days after Michaelmas under
no new agiei-nuMit ; master asked
him if he cliose to go on with him ;
wages to be the same ; A. con-
tinued in SL-rvice until Lady Day,
1826 ; no vearlv hiring.

Baxter v. X'nr.^c (1843), 1 C. &
K. 10 ; (1844) 6 M. & G. 938.
Action by editor of " Pcdytechnic
Review '' for wrongful dismissal ;
evidence that by general usage
editors, sub - editors, reporters,
and other peisons regularly em-
]il()ved on newspapers are em-
ployed for a year ; jury fouiul that
the' usage did not apply to the
" Polyte'chnic Review," which was
a new ]mblication ; application for
new trial refused.

Hokroft V. L''n-/)er(1843), 1 C.&
K. 4. Action fiu- wrongfully dis-
missing an editor ; evidence that
any person permanently employed
(not occasionally only), whether as
editor, sub-editor, or reporter, to
supply a particular department of
a news]>aper, is to be ])resruued to
be hired for a year ; the jury found
for the defendant.

ButterfieU v. Markr (1851), 3
C. & K. 163. Plaintiff, commission
agent, acting for defendants ; ]u-oof
that for more than a year he had
reiulered his accounts.

Blachrdl v. I'cnnant (1852), 9
Hare, 551. Servant paid weekly
wages though irregularly ; not
yearlv hiring.

Fairman v. Ouhford (1860), 5 H.
& N. 635 ; 29 L. J. Ex. 459.
Plaintilf, a clerk of ship broker,
Mi defendant's service, receiving a
month's wages instead of notice ;
8ubset|uently entered the de-
fendant's service at a yearly salary
of £250 ; nothing expressly said as
to notice <>r duration of service ;
plaintilf paid weekly. Judge left
It to the jury to say whether there
was a hiring for a year, telling



Yearly Hiring.
Lamfton v. Carldon (l.s73), '.) L.
R. Ex. 57 ; 43 L. J. E.\. 54 ; 29
L. T. (ioO. At^n'i'iueut Ijetwceu
plaintiU's and det'eutlaut ; latter en-
gaged at salary i)f i;2()0 a year
payable fortnightly ; the agree-
ment between the parties to be
ft)r twelve months certain, after
which time either jiarty to be at
liberty to terminate the agreement
by giving the other a three months'
notice ; and alter twelve months or
before any notice shall have ex-
pired, plaintiffs may do so on pay-
ment to defendant of £50. — Bram-
well, B., and Pigott, B. held that it
was an agreement to expire without
notice at end of twelve months,
and then to continue, if the parties
so pleased, until terminated by
three months' notice. Kelly, C.
B., thought the contract contem-
plated a continuance of service
beyond the three months.

Not Ykarly TIirinc;.
them, according to the report in
the Lav) Journal, that, except in
the case of menial servants, there
■was n(j inilexiljle rule that a general
hiring is for a year. The jury
fouml no contract for a year, and
the C(jurt refused to say that there
was misdirection, or that the
verdict was against the weight <>f

llohm-ti^nii V. .Tenner (1807), 15
L. T. N. 8. 514. Hiring at 2
guineas a week for a year is hiring
by the Aveek and not bv the vear.

A'm)*.s V. 7iV (1872), L. R. 7 C. P.
138. Plaintiff entered service of
defendants under a memorandum
which, ni?cr«ZiVf,said," April 13th,
1871. I hereby agreee to accept
the situation as foreman, &c., on
my receiving a salary of £2 per
week and house to live in from the
19th of April, 1871.'' Weekly
hiring, and no evidence of con-
versation at the time of signing
with a view to show yearly con-
tract intended, was admissible.

See Znrhor.^t v. Millincrnd- Dress
Associatwn, Times, Feb. 25, 1882.


master's duty to indemnify.

A MASTER is boiind to indemnify his servant for all
expenses or loss incurred or sustained, in obeying his
laAA'ful orders.

No express contract of indemnity is required; the law will
presume from the relation of master and servant — as in fact
from any other contract of agency — an obligation to hold the
latter harmless from the consequences of obedience to the
lawful orders of the former (a).

The first important exception to the rule is that a promise,
expressed or implied, to indemnify a servant against the con-
sequences of violation of a statute, or a felony or misde-
meanour, or a manifest civil wrong, is of no effect. Thus
a promise to indemnify a printer against the consequences of
publishing a libel (/>), or to indemnify a police constable for
suffering a prisoner to escape (c), or for an assault (cZ),

(a) Story on Agency, s. 339 ; bveacli of the law, the (h^feudant
Wharton on Agency, s. 340 ; Dif,'. promised to save the phiintili' harm-
Lib. 26, 18. Tothier (Mandat, less?" Tindal, C. J.) Colbuiii v.
Chap. IV., s. I., A. I.) says of Fatmore (1834), Cr. M. & K. 173.
" r/ol)ligation de rembourser le (Action by proprietor of a paper
mandatairc :"" Ponr qu'il y ait lien against an editor for pnblishing a
h cette obligation, il fant 1'^ que lo libel, for whicli jdaintilf was con-
niandataire ait dobourse quuhjiie victed and lined ; the judges indi-
cliose ; "2" qu'il I'ait debonrse ex catcd their opinion that a ]>roprietor
causa niandati ; 3° qu'il I'ait de- couKl not recover against tlie editor
bourse sans faute, inculpabilitei." tlie thmiages sustained by such con-

{b) Sliackcll V. Mosicr (183(5), 2 vietion.)
Bing. N. C. 634. ("The plaintilf, (c) Feathcrslonc v. Hutchinson,

at tlie request of the defendant, had Cro. Eliz. 199.

puldished the libel; that is, liad (d) AUcnv. Itcscons, 2 Lev. 174;

coMunitteil an indictable olfence. /^rt^/n-.w/'.f Case (20 James I. ), Winch

Wliat is that but saying tliat, in eon- 48, and Parchrothn- v. y/«.'(/(7/(1808),

sideration that tlu' plaintilf and de- 1 Camp. 344 ; said by Story (Agency,

I'endant had combined to commit a 339) to be overruled.

master's duty to indemnify. ]77

would be void. In all such cases the principle that there
is no contribution between tort-feasors or wrong-doers

Where, however, an act is not palpably illegal, and is done
honestly, in discharge of the directions of the master ; where
a servant does not know, and has no reasonable ground for
believing, that that which he did was wrongful ; where he had
a right to suppose that the orders which he obeyed were
lawfully given, the servant will be entitled to indemnity,
even though his acts have injured others. His duty is, in
general, to obey ; it would be wholly unreasonable to deprive
him of indemnity, where the orders are not on the face of
them unlawful. The principle that at law joint trespassers
cannot sue inter se for contribution, must in fairness be limited
to cases where the servant could know that he was doing
wrong. The older authorities may not support this view,
but many decisions, such as Adamson v. Jarvls (e), and
Humphry s v. Pratt (/), show that a principal who employs
another to do an act, apparently lawful, undertakes to indem-
nify him against all the consequences. " The rule that
wrong- doers cannot have redress or contribution against
each other," says Best, C. J. in the former case(^), "is
confined to cases where the person seeking redress must
be presumed to have known that he was doing an unlawful

No distinction between 'inalLim in se and inaluin pro-
hibitum exists in this point of view. A servant can no

(e) (1827) 4 Biiig. 66. Plaintiff, undertakes to indemnify liim for all

an auctioneer, sold cattle wliicli were sucli acts as would be lawful if the

not the propertj' of the defendant, in employer had the authority he pre-

whose possession they were, and who tends to have."

employed him ; owner recovered (/) (1331), .5 Bli. N. S. 1.54 ; 2

judgment against the plaintiff for Dow&Clark, 238. Plaintiff, a sheriff,

selling the cattle : held that the seized cattle under a Ji. fa,, given by

plaintilf was entitled to be indemni- defendant ; owner recovered damages

tied by the defendant. Best, C.J., plaintilf : held tlie plaintiff

stated the rule thus : " Every man was entitled to indemnity from the

who employs another to do an act defendant. See /'^(wr v. iZocy (1871),

which the employer appears to have 19 W. R. 916.

right to authorise him to do, (y) p. 73.


more recover indemnity for contravening a statute than com-
mittinir a crime at Common Law : it is clear that a servant
could not recover expenses incurred in smuggling goods m
pursuance of the orders of his master, any more than he could
recover the expenses of carrying out a conspiracy to effect a

No right to indemnity will exist in respect of losses or
expenses caused by the servant's failure to comply with orders
or by reason of his exceeding them.

A servant can, of course, claim indemnity only for the
losses which are directly due to the execution of his employer's
orders. As to this point, in the Civil Law, nice distinctions
are drawn (h). It is enough for our purpose to say that
indemnity cannot be legally claimed for merely collateral
losses (i).

In a subsequent chapter, in dealing with the duties of a
master to his servant, it will be pointed out that the latter
is entitled to indemnity for losses due to the Avant of skill
or negligence on the part of the former.

It has been said that " as to servants doing an act in
obedience to the master's orders, knowing the act to be un-
lawful, the rule, as to parties in pari delicto does not apply
with that strictness that is given to it in cases where the party
is not in any measure subject to the control of the other (A;)."
The authorities for this statement are Smith v. Cuf (I),
Atkinson v. Denhy (m), and the class of cases, in which
embarrassed debtors, who have paid sums of money to parti-
cular creditors, in order to procure their assent to composi-
tions, have been allowed to recover what they have so paid.
Particular expressions used by Ellenborough, C. J. and
Cockburn, C. J. in these cases, are wide enough to warrant
the statement which we have quoted. When servants

(h) Pothier, Chap. III., sec. 2. (0 (1817), 6 M. & S. 160.

(i) Dip. L. XVII. tit. 1, 1. 26 s. 6. (VI) (1S62), 7 U. k N. 9'M ; 8 Jur.

(k) Wood, Master aiul Servant, ]>. N. S. 1012 ; 31 L. J. Ex. 362.

master's duty to indemnify. 17!)

execute illegal orders through fear of dismissal, there is, to
quote the language of the former, " Oppression on the one
side, and obedience on the other." No decision, however.
has gone so far as to say that a servant may claim indemnity
for the consequences of obeying illegal orders through fear of
losing- his place.



master's duty to provide sustenance.

It is the duty of a master to provide his (domestic)
servants with wholesome and sufficient food and suit-
able lodging.

We read in Fitzherbert that the " keeping from the servant
meat or drink is a good cause for his departure from his
service " (a). At Common Law a master is not bound to
furnish medical aid or medicine to his servant (/>). He is not
even liable upon an implied contract or otherwise if a doctor
or surgeon be called in to attend a servant who is injured
in the course of his employment. But slight evidence of
assent — for example, iuterfercnce on the part of the master,
or the fact that he called in his own doctor — will suffice to
fix him with liabilit}' (c), and he will not be permitted to de-
duct the charge from the servant's wages. The position of
an apprentice is different ; in sickness he is entitled to
proper medical attendance and medicine (</).

Failure or neglect to provide nourishment to a servant or
apprentice was in certain cases at Common Law an indictable
offence. Thus in II. v. Gould (e), a master to whom a poor

(rr) 163 K. mcstic servant to reside out of liis

{/>) Nr.Kby v. WULsliirr (HSf)), 4 house on paying board wages ; not

Doug. 284 ; ^//<:j?!sv. //«.Hwr// (1802), so a female domestic servant.

'2 East, r)Or> ; Wcnnall v. Advry Graham v. Tliom-non (li<22), 1 i^. 287.

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 20 of 77)