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

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had to consider the same point. Eelying mainly npon a dictum in
Viner's Abridgment, title Removal, p. 459, which does not bear out Lord
Mansfield's statement, they ruled that a master was entitled to turn away
a maidservant Avho was with child. " Sliall the master," asked Lord
Mansfield, "he bound to keep her in his house? To do so would be
contra honos mores, and in a family where there are young persons both
scandalous and dangerous." This decision was put by Willes, J., on
the ground that the justices had no jurisdiction in case of domestic
servants. See Rex v. Welford, Cald. 56. To show how the law was
understooil till some time after Rex v. Brampton, I may refer to Mr.
Bird's book on the " Law of Master and Servant," the first edition of
Avhich was publislied in the end of last century. In the third edition,
published in 1801, he cites at p. 3 Rexv. Brampton, to show that notwith-
standing the statute of Elizabeth, if a servant be guilty of incontinence
or other moral offence whilst in his master's service, the master may
discharge him without application to a justice. But Mr. Bird adds,
'' neither for rudeness or other misbehaviour of servant, can the master
discharge him, before the end of his term, nor can the servant leave his
master on account of ill-treatment by the master or mistress ; but in
these and like cases, application must be made to a justice for a discharge
as directed by tlie statute of Elizabeth." See remarks of Lord Kenyon
in Rex v. Hulcot (1796), 6 T. R. 587, and Bex v. Sutton (1794), 5
T. R. 659.

Sections 5, 6 and 9 of the statute of Elizabeth are mentioned by
Mr. Crabb in his Digest of Statutes as being in force in 1844 ; they
do not seem to have been repealed until 1875. See Chitty's General
Practice (edition of 1837), p. 76. I do not find any clear assertion
of the principle, now universally admitted, that a master may
for disobedience, &c., discharge any servant, until 1817, when Lord
EUenborough at Nisi Prius, in Spain v. Arnott, 2 Starkie, 25G, — a case
of a servant in husbandly— said, " He (the master) might have obtained
relief by applying to a magistrate ; but he was not bound to pureue that
coui-se ; the relation between master and servant, and the laws by which
that relation is regulated existed long before the statute." These words
seem directly contrary to the express terms of the 5th section. (2) At


coiuinou law a ])ci'soti is not entitled to treat a contract as at an end for
every breach, but only when there is a breach wliich j,'oes to the root of
the matter and which cannot be properly compensated for : Simps(m
V. Crijipin (1873), L. K. 8 Q B. 14. When a singer wlio had engaged
with defendant to sing for fifteen weeks, and who had agreed that
he would be ready for rehearsals six days before the engagement
commenced, failed to attend tliese rehearsals, it was held that the
defendant was not entitled to refuse to take the plaintifl' into his service :
Bettini v. Gye (1876), L. R. 1 Q. B. D. 183.

No doulit failure or refusal on a single occasion to do Avhat one was
bound to do under a contract of personal service — as in Poussnrd v.
Spiers (1876), L. R. 1 Q. B. D. 410, which was a case of failure on the
part of a leading singer to join in the opening performance of a new
opera — might go to the root of the contract and justify recision. But
apart from the decisions Avhich are quoted in the text, it might not have
occurred to anyone that refusal by a maidservant to answer a bell, or by
a clerk to fetch a book on a single occasion, would justify instant
dismissal and forfeiture of wages : Gould v. JJ'chh (1855), 4 E. & B. 933.


There is an absence of authority in English law as to the place
at which a servant is boimd to serve, p. 184. The point has been
much discussed in the Scotch Courts, and the following is said to be
the rule on the subject : — " It seems to be the general opinion of
lawyers, that all domestic servants, secretaries, and other servants
similarly circumstanced whose duties have rehititju solely to the master's
presence are bound to attend his movements, and cannot object to go
with him from country to town, from town to country. But this under
the following conditions : No servant is bound to go out of the British
Isles to a foreign country, seeing that there he is without the protection
of British law, and in circumstances, it may be, far dillerent from those
under which he would have lived in his own country. Nay, some
lawyers think, that no servant hired in Scotland is bound to go to
either England or Ireland." " In the case of servants whose Avork has
reference to a ^'^"ce, not to the master's person, such as overseers,
ploughmen, or workmen at manufactories, the master cannot remove the
servant to any other farm or manufactury at any distance inconvenient
to the servant. The place where the master has his work at the time of
the engagement would be held the place where (in the absence of
express stipulation) it is implied that the servant was to labour ; and,


having once entered to his service, he cannot be removed to any place
which may occasion him trouble or expense." Campbell'.s edition of
Fraser's Law of Master and Servant, pp. 83 and 352.

The above distinction between servants whose work has reference to
a place, and those whose work has reference to a master's person,
seems to be recognised in all systems of jurisprudence ; Savigny,
Obligationenrecht, I. 49 ; Levi, Delia Locazione ; ylmhyrson v. Moon
(1837), 1(5 S. 412.

It was decided in Coventry v. Woodhall, Hob. 134, that "i^'enerally no
man can force his apprentice to go out of the kingdom, unless it be so
expressly agreed, or that the nature of his apprenticehood doth import
it, as if he be bound apprentice to a merchant adventurer or a .sailor, or
th.e like."




Masters may recover damages against j^crsons
wlio ^^Tongfully deprive them of the services of their

The rights of masters and servants arise out of contract.
It might therefore be supposed that they would consist
merely of rights in 'personam and not of rights ad rem.
This, however, is not entirely the case. The relation is, in
some respects, status. The master's rights to the labour of
his servants are regai'ded as rights ad rem ; they are some-
what of the nature of property (a).

Such a right of action as that which is above stated
existed from early times. According to Bracton (b), the
master might bring an action for insult and disgrace in-
flicted upon his servant, apparently though he had not
lost service (c). Actual bodily injury was not necessary to
sustain such an action : mere intimidation or menaces
were enough, as appears by 40 Ed. III. and 20 Hen. VII.,
p. 5 (d).

The rul.e clearly recognised nowadays is, that the master
may recover damages from persons who have wrongfully

(n) Inlrodiu'tioii, note (rt). 3,4. It may he noted that iicconling

(li) Hracton, 115 and 155. Sec to I'nlton, the master's remedy for

lJi;(elow on Torts, p. 224. menaces to his servant extended to a

(c) The rule was different in I'rit- "servant, tenant, or any other person
ton'.s time. Nicholl's Britton, i. by wliom he liveth or receivetli
p. 131. benefit."

(d) Sec also Pulton d'' Pace Ilejis,


injured liis servauts, provided a loss of service is thereby
caused (e).

Thus actions have been brought by masters against persons
for negligently driving over a servant (/), administering
injurious drugs to him {(j), or for injuries from the bite of a
dog (h). Common instances of such actions are those which
are brought against persons who knowingly entice away or
procure the departure of servants (i). To sustain such an
action, it is not necessary to prove any binding contract of
services (/) ; it will be enough for the plaintiff to show that
he was actually receiving the benefit of certain services at
the time at which the injury of which he complains was
committed, and that the dcfendc'nt was aware of this fact.
In Liimleij v. Gye {m), it was held that an action might
be brought by one theatre manager against another for
procuring a prima donna to break her engagement to sing
at the theatre of the former. In short, the action lies when
the relation of master and servant does not in the strictest
sense exist.

The Courts have extended the action for loss of service to
the case of children who are injured, a child being con-
structively in the service of its parent. There must, how-
ever, be some foundation for the theory. A father will not

(f) 'Would an action lie for inducing 15 W. K, 1062 ; 17 L. T. X. S. i)2 ;

a master to discharge workmen i Luinlcy v. Gijc (1853), 2 E. & B.

(/) Martinez v. (Jerber (1841), 3 216 ; 22 L. .T. (>. B. 463 ; 17 Jur. 827 ;

M. & G. 88. Bourn v. Hall (1881), L. R. 6 Q. B.

((/) Bacon's Abridgment, -Master 333. Trespass will lie for enticing

and Servant, 0. away a journeyman, Ilarl v. E/driJ'ji:

(h) Eodsoll V. Stallchrasa (1840), (1774), Cowp. 54, although only hired

11 A. & E. 301. by the piece and not for any certain

(t) The Scotch courts have held time. Tres^iass will not lie for

that a master is entitletl to damages inducing a servant to leave at the

liom one who induces a servant to expiration of the period for which

reveal the secrets of his master's trade. he was engaged, althougli he had

Fraser, 314. See as to the above no intention at the time of leaving,

class of actions Hall v. Hollander Nichol v. Martin (1799), 2 E.sp.

(1825), 4 B. & C. 660 ; Lewis v. 734. As to evidence of enticing

Foijij {112,2), 2 Str. 944 ; Furcs v. away, Kcane v. BoycottXH^b), 2 H.

Wilson (1791), Peake, 78. B. 512.

(I) Evans v. Walton (1867), L. R. (ra) Sec note [1).
2 V: V. 615 ; 36 L. J. C. V. 307 ;


be able to recover damages if his child be incapable by
reason of youth, as in Hall v. Hollander (n), of rendering

This remedy has been used by a sort of fiction for the
purpose of jDunishing seducers of women. The action is
based u23on loss of service, and is said to be maintainable
only when the relation of master and servant exists ( o).
But in order to extend the remedy, the Courts have been
inclined to find that relation, when in point of fact it does
not exist. Proofs of trivial acts have been accepted as evi-
dence of service. It is enough that there is a service at will.
The fact that a daughter, as in Bist v. Faux (q), assisted in
household work after coming home in the evening from the
fields where she worked for hire, has been held sufficient.
The length to which the Courts have gone is seen by Evans
V. Walton (r), which was an action for enticing away the
plaintiff's daughter. She resided Avith her father and
assisted him in his business as a licensed victualler, but she
was free to leave at any time. Having quitted home with
her mother's consent, she was seduced. The Court thought
that, as she had been induced to quit a continuing service,
an action was maintainable.

On the other hand, no action will lie for enticing away
an apprentice if there exist no valid contract of appren-
ticeship. In a case in Avhich an indenture was void by
rea.son of the 8th of Ann. c. 9, sec. 35 & 39, for not truly and
fully setting forth the consideration or premium paid, the

(n) (1825), 4 B. & C. 660. confinement she was in service of

(u) Fines V. JVi/smi (1791), I'eakc anotlicr eniiiloyer, and afterwards re-

N. P. 77 ; 7'hoiii2}son V. lioss ilSbd), tnnied home to her mother ; no action

5 H. u N. 16. because no eviiU-nce of service at the

(y) (1863), 4 B. & S. 409 ; but see time of sechiction ; and by Kelly,

Dca7i. V. Feci (1804), 5 East, 45 ; C. B., Jlartin, Hraniwell, BB., he-

and IIcd(/cii V. 7'i'(!<i (1872), L. B. confinement did not take place

7 Ex. 'i8a (jilaintiirs daughter, a wliilc daughter in plaintifi's .service).

govcrnes.s, seduced while on a three But see long v. Ktvj/Uliy (1877), 11

(lays' visit witli hei employer's per- Ir. C. L. 2'21, Joseph v. Carvand^-r

mission at her mothers homo; she (1834), and lioscoe on Evidence, 13th

gave Kome assistance in household cd. 878.

work during her visit ; at time of her (r) See uote (0-


Court of Common Pleas held that a count for enticing away
could not be sustained (s).

Au action will lie, not only against one who wrongfully
seduces or entices away a servant, but against one who
knowingly harbours or employs the servant of another (^).
But there is an important distinction between the two kinds
of action. The action for enticing away or seduction may
be maintained, as has been stated, when no binding contract
of service exists, when service ex gratia or de facto is sus-
pended in consequence of the persuasion or procurement of
the defendant. The action for harbouring or taking into
service the servant of another will, for obvious reasons, not
be sustainable unless there has been a binding contract ;
the contract may be voidable, but it must not be void.
Accordingly, when A. took into his service C, who had been
working for B. under a contract void by reason of the Statute
of Frauds, and refused to discharge C. after receiving notice
from A., it was held that no action lay against A. («,). To
sustain either an action for enticing away or harbouring, it
is neces.sary tiiat there should be notice of the existence of
the contract of service {x).

If the injuries wrongfully inflicted up>on a servant
cause his immediate death, the master has no right of

The reason of this qualification is very obscure. It was
quaintly said by Tarfield, J., in Higgins v. Butcher (y), " That
the servant dying of the extremity of a battery, it is now

(s) Cox V. Munc'i/ (1S59), (5 C. B. (.r) Faircet v. Bcavrcs i\&7\), 2

N. S. 375. Lev. 63 ; Fosscl v. Brccr (lii71), 3

(t) Bloke V. Lanyon (1795), 6 T. K. Keb. 59 ; Fores v. Wilson (17^1),

221 ; Ashcroft v. Bcrllcs [ll'i^), 6 T. Peake, 77. (No notice necessary iu

li. 652. case of action of seduction. )

(u) Syh-cs V. Dixon (1S39), 9 A. & (y) (lG06),Yelv. 90. Notice does not

E. 693; 1 W. W. & H. 120 \J'il!:i)igton seeui to have been re(juired when the

V. Scott (1816), 15 M. & W. Gr>7. Statute of Labourers was in force.


become an offence to the Crown, being converted into a
felony, and that drowns the particular offence and private
wrong offered to the master before, and his action is thereby
lost." There are several objections to this explanation, which
was a dictum not essential to the decision of the case. One
of these is the fact that White v. Spettigue {yy), followed in this
respect by Osborne v. Gillett (z), has decided that the rule as
to a right of action being suspended in case of felony applies
only between tlie person injured and the criminal ; it does
not affect a third party, such as the master. According to
another explanation, "The master's riglit to his servant's
services is instantly abrogated, and, in the eye of the law, no
damage is sustained by him because no right " (a). This
reason explains nothing. Does not a right of action accrue
to the master between the moment when the injury was
inflicted or the wrong done, and the moment when death
took place ? And, if it does accrue, what becomes of it ?
Probably the rule originated in a mistake as to the meaning
of the maxim Actio ■pei'sonalismorltur cum persona. The
existence of the rule has been disputed by some American
Courts (c). Whatever be its origin, it is in force. It was
stated in Higgins v. Butcher, it was affirmed by Lord Ellen-
borough at nisi prills in Baler y. Bolton {<!), decided in 1808.
It has found its Avay into text books (c), and it was recog-
nised by the Court of Exchequer (Bramwell, B., dissenting)
in 1873 in Osborne v. Gillett.

When tlic injury to ti servant i.s the result of u
breach of contract to which the master is not a party,
no action can be brought by him.

Thus, when a servant was hurt while on a railway journey,

(yi/) (184.5), 13 JI. k W. 603. (r) The whole subject is discussecl

(I) (1873), L. li. 8 Ex. 88. in Ex part, ■ Ball (1879), L. R. 10 Cli.

(a) Even in Osborne, v. Gilhlt the D. (;G7, :ni(l in Mr. Justice Wntkin
rule seems to liave been niisundcr- 'Willianis' learned judgment in Mid-

stood land Jiisurancr Co. v. SdiUIi (15^82),

(c) Wood, 438. L. R. ey. 15. D.e.'il.

((/) (1808), 1 Camp. 493.



it was held tliat the master, not being privy to the contract,
could not sue for loss of service (/). But where a servant
had been injured by a collision caused by the negligence
of another company than that with which the contract of
carriage was made, the master recovered damages for loss of
service (g).

{/■) AUon V. Mkllund Ry. Co. much criticised. Sec J i/ics v. Union

(1865), 19 0. B. N. S. '213 ; 34 L. J. Ji;/. Cu. (1875), 19 Am. Kep. 426.

C. P. 292 ; 13 W. E. 918 ; 12 L. T. (rj) Berrington v. Great Eastern

N. S. 703. This decision has been Ry. Co. (1879), 4 C. P. D. 163.


The following are tlie chief cases as to uctions of seduction : —

Bennett v. Allcott (1787), 2 T. R.
166 (person seduced of full age) ;
Edniomhon v. Machell (1T87), 2
T. R. 4 ; Fon^s v. JFilson (1791),
Peake, 77 (servant not rclaU'd to
her master) ; Mann v. Barrett
(1806), 6 Esi5. 32 (plaintiff's
daughter lived with her brother,
but went every day to her
father's house to do all the house-
hold work) ; Speiglit v. Oliveira
(1819), 2 Stark, 493 ; Manvell v.
Thompson (1826), 2 C. & P. 303
(plaintili's niece entitled on com-
ing of age to ,£500; occasionally
assisted in the household work) ;
Harper v. Luffldn (1827), 7 B. & C.
387 (married Avoman living with
her lather and acting as servant) ;
Maunder v. Venn (1829), M. & M.
323 (no proof of acts of service, but
father had right to daughter's ser-
vices. Little(lale, J.). Hollo^eay v.
Ahell (1836), 7 C. & P. 528 (A. occu-
pied two farms seven miles apart ;
A. resided at one, and his son. and
daughter at another ; the daughter
acted as mistress at the latter farm-

No Action.
Suterthicaite v. Duerst (1785), 5
East, 47n ; Eeddie v. ticoult (1795),
Peake, 316 (plaintilf jierndtted
a man whom he knew to be
married to visit his daughter as
suit(ir) ; Bean v. Peel (1804), 5
East, 45 (plaintiff's daughter in
service of another at time of se-
duction, and did not intend to
return to plaintiff's house) ; Carr
V. Clarke (1818), 2 Chit. 261 (no
action when daughter not in
father's service, but he receives
part of her Avages) ; Harris v.
Butler (1837), 2 M. & W. 539
(plaintitt's daughter apprenticed
to defendant's wife) ; Blayviire v.
Haley (1840), 6 ^I. & AV'. 55 (ac-
tion does not lie where daughter
in domestic service of another,
though she was there with the in-
tention on her and her father's
part to return, on c[uitting her i)re-
sent situation, to her father's house
if she got no other situation) ;
Grmneli v. Wells {\M4), 7 M. & _G.
1033 (some proof of loss of service
neces.<ary) ; Buyer v. Grimvood



house ; tlie daughter seduced ; ac-
tion hiy. Littk'dale, J.) ; Griffiths
V. Tatiicn (1854), 15 C. B, :U4
(A. agric'd with B. that B.'s
dau^Ljhter, -who was then residiii<,'
with him, sliould. enter A.'s service
to assist him in business during
the temporary absence of A.'s wife ;
action lay at suit of B. for seduc-
tion by A. during that period) ;
Hist V. Fcmr (1863), 32 L. J. Q. B.
380 (plaintiff's daughter after day's
work as servant in husbandry per-
formed sei'vices for her father) ;
Ogden v. Lancashire (1866), 15 W.
K. 158 (plaintiff's daughter lived
with her father ; worked during
day at defendant's mill ; did wasli-
ing and other domestic duties for
plaintiff) ; I'crry v. Hutchinson,
L. K. (1868), 3 Q. B. 599 ; 37 L.
J. Q. B. 257 (plaintiff's daughter
having left her situation was
seduced on lier way home to her
father's house).

Long V. Keiijhtley (1877), 11 Jr.
C. L. 221. (P'laintitt's daughter,
twenty-four years of age, seduced
in the liousc, and while ,in the ser-
vice, of plaintiff, her mother.) In
accordance witli a previous ar-
rangement, slie left the day after-
wards for America ; finding herself
pregnant, she went to her sister's
house, and r(!sided there until
after her confinement ; subse-
([uently she returned to the plain-
tiff's house. Eviflence to go to
jury of loss of service.)

No Action.
(1847), 1 Ex. 61 (some proof of loss
of services necessary) ; Davies v.
llllHinn.^ (1847), 1(» Q. B. 725
(plaintiff 's daughter when seduced
not in plaintiff's service) ; Thom-p-
son V. Jiuss (1858), 5 H. & N. 16 ;
29 L. J. Ex. 1 ; 1 L. T. N. S. 43
(no action where daughter does
not reside in house, though, wdth
permission of her master, slie has
lieen in tlie habit of assisting her
mother in her bu.siness) ; Munley
V. Field (1859), 7 C. B. N. S. 96
(plaintiff's daughter had a house
of her own) ; Hedges v. Tagg, L.
K. 7 Ex. 283 ; 41 L. J. Ex. 169.
See page 230.

The action may be brought by-
master {Fores V. "jrHso^i), brother,
aunt, EdmondsoH v. Machell, 2
T. li. 4, or by a person who has
adopted a friend's daughter, Irivin
V. JJcarman, 11 East, 23.


(By Death).

Contracts of liiriug and service are terminated by
the death of the master or the servant.

The general rule is that executors or administrators
are hable upon the contracts of the deceased, though
they are not named («). It is, however, an imphed
condition in contracts of service, requiring personal skill
or taste, that they are terminated by death (6). " Where
personal considerations," says the Court in Farroiv v.
Wihun (h), " are the foundation of the contract, as in cases
of principal and agent, and master and servant, the death of
either of the parties puts an end to the relation ; and, in
respect of service after death, the contract is dissolved, unless
there be a stipulation, express or implied, to the contrary."
" All contracts for personal service," said Pollock, C. B., in
Hall V. Wrigld (c)— and the dictum is (Quoted with approval
by Kelly, C. B., in Robinson v. Davison (d) — "which can be

(ft) Tarke, B., in Saboni v. Kir/:- after the master's death. ) Barker v.

man (1836), 1 M. & W. 423 ; Farkcr (1786), 1 T. R. 287. But see

Willes, J., in Farroiv v. JFilson. Stuhbs v. Holywell Fiy. Co., L. R. 2

See ne.xt note. E.x. 311 ; 36 L. J. Ex. 166. Marriage

(h) (1869), L. R. 4 C. V. 744 ; does not operate as a dissolution of

38 L. J. C. P. 326. (Farm bailiff contract. Chitty's General Practice,

engaged at weekly wages ; service to vol. i. 770 ; Burn's Justice, 222.
be determinable' by six months' (c) (1859), E. B. & E. 746,793;

notice, or payment of six months' 29 L. J. Q. B. 43.
wages. Administratrix not bound {d) (1871), 6 L. R. Ex. 269 ; 40

to continue the bailiff in her employ- L. J. Ex. 172; 24 L. T. 755; 19

ment, or to pay him six months' wages \V. R. 1836. See Blackburn, J., in


jDerformed only during the lifetime of the party contracting,
are subject to the implied condition that he shall he alive to
perform them." Hence a contract of apprenticeship (e) has
been held to be determined by the death of one of the parties.
No doubt such a contract may be drawn so as to prevent
this taking place. In Cooper v. Simmonds (/), a lad was
bound to a tradesman and " his executors " carrying on
the same business in the same town. Notwithstanding the
death of the master the apprentice was bound to serve his
widow, the executrix, while she continued the same business.
The chief difficulty is with respect to the servants of
partners. The death of a partner dissolves a partnership in
the absence of an agreement to the contrary (g) ; and if the
rule be, as is sometimes alleged, that the dissolution of
partnership terminates all contracts of hiring and service (h),
the death of one partner would bring this about. This view
is supported by Tasker v, Shepherd (i). The plaintiff was
employed as agent by a firm composed of two partners. The
Court held that the death of one of them terminated the re-
lation of agency. But this view was questioned by Martin, B.,

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 25 of 77)