John Macdonell.

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

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years he was to be entitled to the expenses of the
return of himself and his family. He was dismissed with-
out notice or receiving a year's salary. The jury gave him a

(c) (1849) 2 H. of L. at p. 606 ; McUis (1824), 2 liiiig. 229.

Smith V. Thompson (1849), 8 C. H. (d) Burton v. Finkcrton (1867). 2

44 ; (clerk liiieil for two years ; wioiif^- L. K. Ex. 340; 36 L. J. E.\. 137;

fully (lisiiii.s.sed after about one 17 L. T. N. S. 1;".. Ross v. Pender,

(luartor'.s service ; jury awarded one .Tan. 1874, 1 K. 3.12 (loss of gratui-

year's salary ; Court refused to disturl) ties not to bo considered in estinuU-

the verdict) ; Goodman v. I'ococh ing damages).
(1850), 15 (j. B. 570 ; Richardson v.


year's salary from the date of dismissal and Iiis own expenses
in returninjr to Enflfland. The Court refused to add to the
damages the expenses incurred in the return of his family or
the amount of his salary to the end of the third year (e).

Though it is the duty of a servant who is discharged to
seek employment, it appears that the onus rests with the
person who denies his right to receive his wages in full to
show that he could have obtained employment (/).

When it is said that a servant should diligently look for
employment, it is not meant that a clerk should be ready to
become a ploughman or a navvy, or that a farm bailiff sliould
be ready to undertake the work of a ploughman. This is
illustrated by a Scotch case, Ross v. Pender (y). The plaintiff,
Avho had been employed as head gamekeeper, Avas dismissed,
but he was offered the same wages and the post of assistant
gamekeeper. The Court held that he was not bound to
accept the subordinate situation. " I think," said the Lord
President, "it is sufficient for the disposal of the defence to
show how the employment offered him if he would return
was wholly different from his former one as head keeper."

A servant wlio is improperly dismissed, or Avliom the
master refuses to take into his service, may at once sue
for damages. He may also in the former case recover
the value of services actually performed.

In other words, the servant may treat the contract as at an
end and rescinded, and sue on a qiianiiiin rneruit for his

(e) French v. Brookes (1830), 6 prospective reimincration in wiuiling

Bing. 354 ; 4 M. & P. 11 ; Noblr v. up of oompaiiios. YcUaiul's f'asc

Allies Manufadurinrj Co., 112 Mass. (1876), I>. K. 4 Etj. 3.'>() ; Clark's Case

492. (Plaintiff, who had come from (1869), L. E. 7 Eq. 5.50 ; 38 L..T. Ch.

the Sandwich Ishinds to Massachus- 562 ; 20 L. T. N. S. 774 ; Ex parte

setts, could not recover in an action Machirt (1870), L. P. 5 Ch. 737 ; 39

for refusal to receive hira into service, L. J. Ch. 685 ; 23 L. T. N. S. 685 ;

damages for loss of time or expenses Ex parte Logan (1870), L. R. 9 Eq.

in journey.) 149; Dm n and Gillin-i's Cn,ic {IS7 2),

(/) Costigan v. Mohawk Hail Road 41 L. .1. Ch. 476 ; 26 L. T. N. S. 467 ;

Co., 2Denio, 609. ShirrcfFs Case {1S7 2). L. R. 14 Eq.

{g) (1874) 1 R. 352. See as to 417 ; 42 L. J. Ch. 5 ; 20 ^Y. R. 966.


services, or he may treat the contract as still in existence and
sue on a breach of it. In the notes to Gutter v. Powell (h)
another remedy is stated ; " the servant," it is said, " may
wait for the termination of the period for which he was
hired, and may then sue for his whole wages, in indebitatus
(issumjjsit, relying on the doctrine of constructive service."
This phrase is borrowed from decisions in settlement cases,"
and the doctrine was first suggested by Lord Ellenborough
in the case of Gandcll v. Pontigny {[), an action for wages
for the whole quarter by a servant wrongfully discharged
before the end of the quarter. Lord Ellenborough suggested
that the plaintiff might be entitled to recover on the ground
that as he was "willing to serve for residue in contem-
plation of law, he may be considered to have served the
whole." This was followed in Smith v. Kingsford (k) and
Collins V. Price (/). But since the case of Archard v.
Hornor (m), decided in 1828, by Lord Tenterden, this
doctrine has been questioned. In SmitJi v. Hayivard{n)
the Court of Queen's Bench declared their preference for the
law as laid down in Archard v. Hornor, and the same view
was expressed in Fewings v. Tisdal (o). No doubt a servant
who has been improperly dismissed is not bound to sue at
once ; he may sue at the end of the term ; but the sum which
he will recover will be calculated not on the basis of fictitious
service, but the actual damages which he has sustained.
Now that it is suflficient for a plaintiff to state in his
statement of claim the facts upon which he relies, these
decisions arc \iiiimportant {j)).

A servant Avho has been improperly dismissed need not

(7i) Smith's L. C. vol. ii. ]>. 3S, much as woiihl compensate liim for

5th ed. the loss of the opportunity of earn-

{i) (1816) 4 Camp. 37;'). ing £50.")

lie) (1836) 3 Scott, 279. McKeaiiv. (/) (1828) r> Bing. 132.

(Joir/cy (1863), 7 L. T. N. S. 82S. (,/») (182_8) 3 C. k P. 340.

(I'laiiitilf engaged as commission (/() (1837) 7 A. k K. 544.

agi'iit, at salary of £')0 a year; en- {<>) (1847) 1 Ex. 295.

gagcment to be terminated "at end of (p) Sec liarvslrj/ v. Tn>//or(1867)

any year on giving three months' 32 .1. P. 229, as to efl'eet of olitaining

notioe ; not entitled to receive tin; damages for improper dismissal,
whole year's salary ; "entitled to so


wait until the expiration of the tcrni for which he engaged to
serve before bringing his action. So also if his master has
refused without proper reason to receive him into his service,
he may at once institute an action. This was decided in
Hochster v. De La Tour [q), the facts of which were as
follows : A coiuier was engaged in April of l.So2 to go on a
tour of three months, which were to commence on the first
of June, 1852. On the 11th of May of that year the
defendant wrote to say that he had changed his mind, and
that he did not require the courier's services. He refused to
make compensation. The courier began an action on the 22nd
of May, 1852. The declaration averred that from the time of
making the agreement until the time when the defendant re-
fused to perform his promise and exonerated the plaintiff from
performance, the plaintiff was ready and willing to perform the
ao-reement. Breach that the defendant before the said 1st of
June wrongfully refused to engage the plaintiff or perform his
promise, and then wrongfully exonerated the plaintiff from
the performance of the agreement, to the damage of the plain-
tiff. The plaintiff between the commencement of the action
and the 1st of June obtained another engagement on equally
good terms, but not beginning until the 4th of July. On a
motion in arrest of judgment. Lord Campbell said, " The man
who wrongfully renounces a contract into which he has delibe-
rately entered cannot justly complain if he is immediately
sued for a compensation in damages by the man whom he has
injured ; and it seems reasonable to allow an option to the
injured party, either to sue immediately, or to wait till the
time when the act was to be done, still holding it as prospec-
tively binding for the exercise of this option, which may be
advantageous to the innocent party, and cannot be prejudicial
to the wrong-doer. An argument against the action before
the 1st of June is urged from the difficulty of calculating the
damages ; but this argument is equally strong against an

(q) (1853) 2 E. k B. 678 ; Danube S. 152 ; (1863) 13 C. B. N. S. 825.
Ilij. Co. V. Xerws (1861), 11 C. B. N.


action before the 1st of September, when the three months
would expire. In either case, the jury in assessing the
damages would be justified in looking to all that had
happened, or was likely to happen, to increase or mitigate the
loss of the plaintiff down to the day of trial ()•)."

(r) In spite of a common opinion cuncd in goinf^ to his master's house

to the contrary, it does not appear to before being engaged, or returning

be the case that, in tlie absence of from it after being dismissed, Burn's

any stipulation on the subject, a Justice, 5tli cd., 225, and also Head

servant is entitled to expenses in- v. Dunsmoix (1840), 9 C. & P. 588.



A CONTRACT of hiring and service will not be spccifi-
cally enforced. A master or servant claiming redress
for the breach of such a contract will be left to sue
for damages.

In contracts of hiring and service the parties bargain for
the personal qualities of each other. One servant is not as
suitable as another, any more than one piece of land is as
good as another; and at first blush it might seem that the
reasons Avhich have induced Courts of Equity to decree
specific performance of contracts relating to land would
equally apply to contracts relating to services. In point of
fact, Courts of Equity did at one time act upon this view, and
the books contain more than one instance in which masters
were ordered to retain in their service persons whom they
had impropei'ly dismissed (a). This is, however, no longer
done ; Courts refuse to interfere in order to prevent a master
discharging a servant; if improperly dismissed, the latter
must seek his remedy in an action for breach of contract. It
is thought inadvisable to force upon a master a servant whom
he does not like, and with whom he must be brought into
close proximity. " We are asked," said Lord Justice Knight
Bruce in Johnson v. Shreiusbary & Birmingham Bail. Co. (b)
— which was a case in which the plaintiffs had contracted for

(a) Ball V. Coggs (1710), 1 Bro. (6) Seenote(c), and Selborne, L.C.,

Par. C. 140 ; Ea^t India Co. v. Vin- in Wolverhampton and W. Ry. Co.

cent(niQ), 2 Atk. 82. See Camp- v. London and N . JF. Ry. Co., L. R.

bell's edition of Fraser, Master and 16 Eq. 439 ; 43 L. J. C. 133.
ervant, 102.



a specific sum to work the defendants' line and to keep the
rolling stock in repair — " to compel one person to employ
aarainst his will another as his confidential servant for duties
with respect to the due performance of which the utmost
confidence is required. Let him be one of the best and most
competent persons that ever lived, still if the two do not
agree, and good persons do not always agree, enormous
mischief may be "done." Another reason against inter-
fering, mentioned in the above case, is that there could
be no " mutuality." A Court could compel a master to
retain in his employment a certain servant : it could not
compel the latter to perform faithfully his part of the contract,
and to work diligently and skilfully (c). The difficulty of
securing real performance of such a contract is too great.
Hence, if the substance of an agreement be an agreement for
personal service, even though it be connected with other
matters, the Court will not decree specific performance (d).

(c) Ficlrrlmi v. Bishop of Ely
(1843), 2 Y. & C. C. C. 249. (A bill
praying that the jilaintiff might he
(juieted in the ottlce of receiver-
general to the defendant, and that the
defendant might he restrained Ironi
preventing the plaintiff exercising
the duties of the oflice, dismissed.)
Slacker v. BrorJcclbank (IS.'il), 3
Mac. & G. 250 ; 20 L. J. Ch. 401.
(Plaintiff, manager of the business of
the defendants, dismissed by them
for negligence ; reversing an order
by Ixird Cranworth, V.C, l^ord
Chancellor Truro refused to restrain
the defendants from excluding ])lain-
tifi" from the exercise of liis duties as
manager.) Johnson v. HhreKsburij
tb JJirmivrffunn Jly. Co. (1853), 3 Do
G. M. & G. 914 ;'22 L. J. ("h. 921.
(Agreement that jilaintilfs shuuld run
and work all the trains of the com-
pany, and provide foreman, me-
chanics, &c. ; Lord Ju.stices Knight
Bruce and Turner refused to restrain
the defendants from discharging
plaintiffs. ) mhb v. Enqlavd (1 8(i0),
29 Heav. 44 ; 30 L. J. Ch. 222.
(Apprentice dismissed by master ;
Master of the Rolls refused to

cancel articles of apprenticeship,
or to order a return of a portion
of the i>remium.) Cliapliny. London
tO North- Western lly. Co. (1862), 5
L. T. N. S. 601. (Agreement by
which the ])laintiti's should collect,
and deliver goods at certain stations
of the defendants : "Wood, Y.C.,
refused to restrain the defend-
ants from terminating the arrange-
ment.) Ocjdcn V. Fossick [l^^Z), 32
L. J. Ch. 73. (The Lord Justices
refused to enforce an agreement
whereby the defendant agreed to
grant the plaintiff a lease of a certain
wharf, and plaintiff agreed to tinploy
defendant as manager of the wliarf.)
i'etow Bri(jhto)i ,\UckJirhl, tix:, lly. Co.
(1863), 32 L. J. Ch. 077. aiflisw.
j/cr,7(cc(1863), 13h'.Cli. 48. (Plain-
tiff engaged to take management
of baths ; no sjiecific ]ierformance).
Mair V. Himalaya 2'ea Company
(1865), L. K. 1 Eq. 411.

(d) Oqdrn v. Fossick, see n. (c).
While V. lioby (1877), 37 L. T.
N. S. 052 : 26 Nv. IL 133. See re-
marks of .lessel, M.It., in Figby v.
6'<;vi»(c//(]SS(>), L. K. 14 Ch. \). at p.


What Courts have refused to tlo directly, they may hy
injunction effect indirectly. If a contract of service contains
a positive agreement to do something, and a negative
agreement not to do another, or if such a negative
agreement can be implied, they will restrain the breach of
the negative agreement even though they arc unable to
enforce the affirmative. This is a comparatively new branch
of Jurisprudence. For a time the Courts occasionally
refused to interfere by injunction in aid of the negative part
of an agreement when they could not enforce the positive
part (e). Since the decision of Lord St. Leonards in Luonley
V. Wagner (/), in 1852, they have acted differently. There
the defendant, a singer, agreed to sing during a certain
period at the plaintiff"'s theatre. She also engaged not to
sing at any other theatre or any concert without the
plaintiff's written authority. Lord St. Leonards held that,
though unable to compel the defendant to perform her agree-
ment, he could and ought to restrain her from singing else-
where than at the plaintiff"s theatre. It is apparently un-
necessary that the contract should contain an express negative
stijudation, if it be clear that the parties intended that the
services should be exclusively given to one person (g).

Courts will also interfere to restrain by injunction persons

(e) Koable v. Kean (1829), 6 Dilloit (1857), 3 Jur. X. S. 432;

Sim. 333 : Kimberlci/ v. Jrnnings 5 "W. K. 867 ; Fechtcr v. Mont-

(1836), 6 Sim. 340. ' gomeni (1863), 33 Beav. 22. Sec

(/) 1 D. G. M. & G. 604 : Willis also JDc Mattos v. Gibson (1859), 4

V. VMlcU (1851), 13 Beav. 117 D. G. & .J. 276, and Brett v. Ea^it

(injunction restraining; trustees of India <!: London AShijjpinrj Co., 2 H.

a grammar scliool from removing k M. (1864), 404. (Agreement by

master) ; and Daugars v. Ricaz which plaintiif was to he sole broker

(1860), 29 L. J. Ch. 685 (injunction of defendants, and by wliicli liis name

restraining the elders and deacons was to appear in all advertisements

of a French Protestant churcli from of company ; the defendants had

hindering the plaintiff, the pastor of ceased to employ the plaintiff as

tlie eluirch, in the exercise of his broker ; Court refused to compel the

duties), are cases in which the power defendants to issue advertisements

of dismissal was in question. Many with the plaintiff's name as broker

of the cases relate to actors who when they could not be compelled to

played at one theatre when under employ him as such.)
an engagement to play at another ; (</) As to this, see remarks of

e. g. Montague v. Flockton (1873), Lord Blackburn in Doltaiii v. All-

L. K. 16 Eq. 189 ; JVchitcr v. man (1878), L. K. 3 Ap. 730.


who havu contracted not to practise professions or carry on
trades or businesses within certain limits. The limitations
must, however, as has been already stated, be reasonable, and
the contract must not be in restraint of trade (h).

Under the Employers and Workmen Act, sec. 6, a Court
of Summary Jurisdiction " may make an order directing the
apprentice to perform his duties under the appren-
ticeship " (i).

(/() Chapter XII., and Howard v. men, see 43 & 44 Vict. c. 16, s. 10.
Woodward (1865), 34 L. J. Ch. 46. Tart II., Chapter XIV.
(i) 38 & 39 Vict. c. 90 ; as to sea-



A WORKMAN lias a lien upou all materials which,
have been delivered to him to be mended, repaired,
or improved, or made up, and upon which he has
expended labour or money.

This refers to a special lien, and not to a general lien for a
balance of account which is established by express con-
tracts, or custom, and which is possessed by carriers, for
example, or wharfingers (a).

A special lien is created when labour has been expended
upou any object. A shipwright repairs a ship put into his
possession; he has a lien for his remuneration (6). An
article is delivered to a workman ; he expends no labour upon
it ; he cannot set up a lien (c). It was for a time supposed
that, if the price of a Avorkman's services were fixed, no right
of lien existed (d). But since the case of Chase v. West-
niore (e), the contrary doctrine has been recognised. An

{a) As to proof of general lien, Liens, p. IL

see Rushforth v. Hadjicld (1S06), [b) Franklin v. Hosier (1821), 4

7 East, 224. As to lien of a purser B. & Aid. 34L

for wages, see PriHcc Gcor(/(; (1837), 3 (c) Cha2mmn v. Allen, Croke,

Hag. o76. In the United States liens Car. L 271 (no lieu on cattle taken

have been much extended beyond in to feed).

Common Law liens, by statutes. "The [d) Whitaker on Lien, p. 47.

first attempt to create a mechanic's (e) (1816), 5 M. & S. 180. (Wheat

lien arose from a desire to imjirove sent in different parcels at different

as speedily as possible the city of times to be ground ; the price fixed

Washington, as the seat of the per- ui)on for grinding, 15s. a load ; the

manent Government of the United miller had a lien for the whole.)
States. '" Phillips on I^Iechanics'


ao^ieement to do work may be of such a character as to cx-
elude a lieu ; but the mere circumstaucc that a particular
price for work to be doue is fixed is not conclusive (/ ). A
lien may be excluded by the fact that credit is given (^).

The justification of this right is the fact that value has
been imparted, or labour expended upon a certain article. It
has been held that a livery- stable keeper has not a lien for the
keep of a horse delivered to him in the way of his trade ( (/«/),
and that an agister of cattle has no lien in the absence of an
express agreement (It). On the other hand, a trainer, it is
said, has a lien on a horse delivered to him to train ; the
horse has received additional value (/)• Obviously such a
distinction is in many cases difficult to apply. Wliat, for
instance, is the position of an analytical chemist, who has
assayed ore, or a jeweller who has at the request of a
customer ascertained the specific gravity of a jewel ? Is it to
be said that he has no lien unless what he has done
has made the ore or the precious stone more valuable
than it was ? There are expressions in the authorities which
seem to show that no lien would exist unless that were so.
But it seems probable that the Courts would favour the exist-
ence of a lien wherever labour and skill had been bestowed,
and that it would be sufficient for a workman to prove that
he had done that wliicli he was engaged to do.

(/) Hiitlon V. Bra(j(/ (181*)), 7 a ilrcd "with and in respeoi of"

Taunt. 14 25. which ho has done business for thi-

((j) Raitt V. MitchcU (ISlf)), 4 ownci, unless he has cxpondod labour

Camp. 14(J. oil the deed.)

((,q) Jad.soii v. EthcrUhjc (18.33), 1 (i) Jacobs v. Latour (1828), 2 M.

C & M 743 & I'- -^01 ; 5 Bing. 130 ; Scarfe v.

Ih) Jackson V. Cummins (1839), Monjan (1838), 4 M. & W. 270 ; 1

.') M. & W. 342 ; 3 .lur. 436 ; see also H. & H. 292 ; 2 Jur. 569. (Mare

Steoflman v. Hockhtj (1846), 15 M. .sent to be covered by .stallion belong-

k W. 553; 10 Jur. 819 ; 15 L. .). Ex. \\\<A to the plaintifl" ; the plaiiitiirhad

332. (A conveyancer has no lien on a lien on the mare.)

LIEN. 203

A servant has no lien upon tlie property of his
master which he has as a servant got into his

This proposition is intended to give the effect of li. v,
Sankey {I) and Newington Board v. Eldrkhje {iii). In the
former the town clerk of Ludlow claimed a lien on papers
of the corporation on which he had worked as attorney or
solicitor. His cJaim was sustained ; but lie had no right to
retain muniments with respect to which he had done no
work, and which he held as town clerk and as servant of
the corporation.

In the latter case, a solicitor, who was clerk to a local
board, sought to retain papers and books belonging to it.
Bacon, V.C, ordered him to dehver them up. But the Court
of Appea], thinking that the question of lien involved the
very question to be tried in the action, varied the order, and
directed the papers to be delivered only upon payment of the
sum claimed by the plaintiff into Court.

If a workman is supplied with the raw materials by his
master, and works them up upon the premises of the latter, he
has no lien ; he never had possession {n). For the same
reason when a servant gets into his hands as clerk, footman,
butler, &c., any articles, he has no lien. The servant's posses-
sion is in these cases his master's, and no lien attaches in
favour of the former.

Lien is a personal right (o) and cannot be transfeiTed (p).

It is intended to protect a workman's right to remunera-

(Z) (1836), 5 A. & E. 423. (p) SehvjTi's Nisi Prius, 13tli c-.l.,

(m) (1879), L. E. 12 Cli. D. 349. p. 1320. No lien will be aiquind

(?t) Franklin v. Hosier (1821), 4 by wrongfully obtaining ]-,ossc.-sion :

B. & Aid 341. Lcm-pricre v. Paskij (1788), 2 T. K.

(o) l)ullcr, J., in Dmibi(j7iy v. 485. (Goods delivered to a person

Duval (1794), 5 T. R. 604, and wrongfully claiming them; he may

Thames Iron Works Co. v. Patent not detain them against owner uiiiil

Derrick Co. (1860), 1 J. & H. 93 ; the latter repays fieight, which the

29 L. J. Ch. 714 ; 6 Jur. N. S. 1013 ; former has paid.)

Story on Bailments, s. 440.


tion, and the actual expenses of a bailee cannot be in-
cluded (q).

A lien may be lost by giving up possession of a chattel.
For reasons which are not altogether satisfactory, it has been
laid down that a person loses a lien if he claims a right to
detain a chattel upon any other ground than that of the
existence of a lien, or if he claims more than is actually
due {}'). It is submitted, however, that this view is not
correct. The question is one of intention. In the words of
Parke, B. (s), it is incumbent to show that the person entitled
to the lien has agreed to ^Yaive it, or has agreed to waive
the necessity of the tender of the less sum due.

The right of lien cannot be greater than the right of the
person at whose instance and request the labour was ex-
pended (t).

A seaman has a lien for his wages on the ship upon which
he has served. It extends to the whole of the ship, and not
merely as a ship, but to every plank {it). It affects even a
6onrt/?V/f purchaser of the vessel without notice ; and it takes
priority over all other liens upon the ship (./;). If the value of
the ship is insufficient to pay the wages, seamen may require
the freight to be paid into the Admiralty Court to meet the
deficiency. Any agreement by which a seaman agrees to
forego this lien is void (y). By the 17 & 18 Vict, c. 104, s.
11)1, the master has the same lien in respect of his wages as
ordinary seaman,

(7) ii07nes V. Url/ish J-J,iipur (u) Ncptvnc (1824), 1 Hagg. 238 ;

,S'A<>7^tn^ Co. (1860), 8 H. of L. 338. Mudonna d'Idra (1811), 1 Dod.

(/•) Buardman v. Sill (1809), 1 37.
Camp. 410; Kniiiht v. Harrison (.c) Tlic Sudncy Covc{,\?^\^),2\)odi.

\18'23), cited ill Scnrfc v. Monjan 500; T/w Batavia (1822), 2 Dod.

0838)! 4 iM. & W. at p. 279. " 500; Tlic Margaret (1862), 3 Hag.

(h) Hairfe v. Morqan, at p. 279. 238.

{t) Turner v. i,f«s (1855), 20 licav. (y) 17 k 18 Wet. c. 104, s. 182.




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