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Vose i\ Lancasliire & Yorkshire

Rail. Co., 332, 663
Vrede, The, 1.j3



W.

Wadling v. Oliphant, 239, 24o

Wadsworth v. Gye, 243

Wain v. Warlters, 127

Waite V. North Eastern R v. Co., 329

Waldie v. Duke of Roxln'irghe, 282,

299
Waldo V. Martin, 134
AValker v. British Guarantee Asso-
ciation, 210

— r. Great Western Rail. Co.,

2.51

— r. Hull, 243

— V. Nicholson, 90

— V. South Eastern Rail. Co.,

297

— v. Southwestern Rail. Co.,

258, 287
Waller v. South Eastern Rail. Co.,

331
Walley v. Holt, 659
Wallis V. Day, 31
Walsby v. Anley, 599, 600
Walsh V. Southworth, 243



Co.,



AValsh r. Walh-y, 220, ()3K
Walter, Kr parte, 162, 166
Walters, Kr parti', 239
Waltham r. Miilgar, 293
Wannel's Case, 13
A\'anstall v. Pooler, 272
Warburton v. (Jreat Western Rail.
Co., 312, 333
— c. Hevworth, 638
Ward r. Byrne, 135, 136

— r. ( ieneral Oinnibus Co., 29s

— V. ^lacauley, 55

Warden, &c., of Weavers r. Brown,

14
Wardleworth ;•. Walker, 329
Warner v. Erie Rail. Co., 324

— r. Smith, 339
Warren r. Wildee, 305
Watt'rs r. Brogden, 250
Watling r. Oa'stler, 335
Watson V. Christie, 33
Waugh v. Carver, 67, 75

— " V. Mollis, 132
Way r. Great Eastern Rail.

278
"Weatherston v. Hawkins, 1 88
Weaver v. Floyd, 368
"W^ebb V. East, 187

— V. England, 184, 198

— r. Rennie, 335
Webster r. Dillon, 199
Weems v. Mathieson, 319
Weir V. Bell, 259
Wennall r. Adney, 180
Western Bank of Scotland

260, 290
Westlake v. Adams, 1 23
Westmoreland, The, 551, 560
Westwickr. Theodor, 183, 223
Whartman v. Pearson, 297
Wheatley r. Patrick, 272
Whincup V. Hughes, 184
White V. Bavlev, 73

— r. Boby,'l98

— r. Cuyler, 95

— r. France, 661

— V. Spettigue, 232

— r. Wilson, 111
Whitehead v. Holdswortli, 4u3
Whiteley v. Arniitage, (;36

— V. Pei)per. 279
Whitely v. Adams, 186
Whitfield v. Lord Le Desponscr,

290



Addi



XXXll



TARLK OF CASKS.



Whittield v. South Eastern Rail.

Co., 260, 2HI
Whittaker c. r.almfortli, (KM
Whittle V. Fniiikhnia, 127, 141
Whvnipri- i: Hainhi-y, 'rlO
Wirks, /;.'• jiarh; 103
Wi - ett t: Fox, 48, 308, 312, 313,

331
Wi-more v. Jav, 303, 320, 331
Wiikiu V. Eei(l, UiO .
Wilkins I'. Wells, 112
Wilkinson v. Frasier, 75
Willets c. Given, 219
AViUett r. Boole, 41, 636
Willetts r. I3uttaln Eail. Co., 329
AVilliani r. Jones, 287, 297
Williams c. r>yine, 170, 172

— V. Ciiamhers, 239

— r. (/lough, 320, 335

— r. Wheeler, 107
Williamson r. Barton, 249

— V. Taylor, 139

Willis, Doe dem. V. Birchmore, 63

— r. ChiUle, 199

— r. Thorp, 384, 638
Wilmott V. Smith, 252
AVilsun r. Barker, 289

— r. Cdokson, 371

— V. GlasLjow Tramway Cu.,

148,632

— r. Merry, 272, 304, 316,321,

333, 663
_ r. Peto, 256, 272

— f. Simson, 150, 339

— V. Tummon, 289

— ,-. Zulueta, 121
Winne r. Bamptun, 113
Winsmore r. (Ireenbank, 24
Winstone i\ Linn, 32, 222
Wintun r. Wilkes, 90
Winyard r. Ti)o-i>oil, xxxiv
Wise V. Wils.-n, 212, 222, 223
Wolfe V. Matthews, (;04

— V. Mersereau, 300



Wdltou /•. Cavin, .339
Wolverham]ilon it W. Bail. Co.

•/•. London & North Western

Rail. C..., 197
Wood V. Bowton, 600

— r. Fenwick, 89

— V. Finnis, 291
Woo<lin V. Burfonl, 250
Woodh'V r. ^Metropolitan District

Bail. "Co., 205, 32(i, 66i)
Woodness v. Gartness IMineral Co.,

313
Woolley V. Idle, 14
Worthington r. Sudlow, 141
Wray r. West, 90
Wright v. London General (~)mni-
hus Co., 657

— V. London & North AVestern

Rail Co., 315,333

— r. Boxburgh, 256

— r. Wileox,"300

Wyllie T. Caledonian Rail. Co.,

315
Wynne v. Forrester, 427



Yarborough r. Bank of England,

260
Yeatman r. Yeatman, 9()
Yelland's Case, 161, 166. 193
Yewens r. Noakes, 34, 37
Young r. Corporation of Ltaniing-

ton, 118



Z.



Zouch r. Parsons, 88
Zurhorst r. Millinery & Die s Asso-
ciation, 175



ADDENDA.



Page 164. By Apportionment Act, 1870, 33 v<c 34 Vict. c. 3'., s. 2, salaries are

made apportionable.

„ 183. To autiiorities in note (d) add Eaton v. Western.

„ 184, Eaton v. Western is reported in L. II., 9 Q. B. D. p. 63G. Speaking of

lioi/ccv. Charlton, Jessel, M.R., says: "I think that case was not

rightly decided, and we decide the present case on tlie first point

with the understanding that in effect it oveiTules Royce v. Charlton. ''

Sir James Hannen observed : "There is a broad distinction between

this case and that of an apprenticQ taken into the house. In the

latter case, I am inclined to think that the master would be entitled

to take the apprentice witli him if he removed to another place, and

that it would be beyond the power of the apprentice to refuse to go."

The case also decides that there was no breach of tlie covenant to sei^e

the firm, inasmuch as the firm was split up into two firms, one

carrying on the manufacturing part of the business at Derby, and the

other the repairing and agency part of the business in London. "The

apprentice looked to the advantage of being educated in a fimi

, carrying on the business in its entirety, and he is entitled to see the

business of buying and selling as well as the mere manufacturing.''

,, 193. See Breen v. Cooper (1869), 3 Ir. C. L. 62, as to special damage for

dismissal.
„ 198. See 3Ia>j v. Thomson, L. E. 20 Ch. D. 705 ; 47 L. T., X. S. 295 as to

specific performance of contract for sale of medical practice.
„ 223. In note {d} for " is not," read "is not often.''

,, 227. Coventry v. Windal (1615), Brown. 67. A man cannot compel an

apprentice (to a surgeon) to go beyond seas except he go with liim,

"but clearly he migjit send his apprentice to Chester, or any other

part of England."

„ 231. See Gunter v. Astor (1S19), 4 Moore 12, as to damages for enticing

away servant.
,, 482. As to the meaning of " employed," see i?crtt/o/? v. Pairot (1871), L.K. 6
Q. B. 718, where it was held that the respondent had committed the
offence of employing a child within sections 6 & 7 of 30 &; 31 Vict,
c. 146, though the respondent had no interest in the proceeds of
the sale of the child's work, and though the materials were supplied
by the child's mother.



XXXIV ADDENDA.

Page 545. Saunders v. Crowfui-d, has been overruled by JFini/ard v. Tooyood,
W. K, Dec. 23, 1882, i-. 187; Times, Dec. 20,1882; Solicitor's
Journal, Dec. 23, 1882.

,, 604. McGlJin v. Ptdmcr's Hhiphullding Co. is reported in 47 L. T. N. S.
346, where Field, J., says the " defect" must be "something in the
l)ermaneut condition " of the way.

,, GC6. Bunker v. Midland Jiad. Co., Law Times, Dec. 16, 1882 ; Solicitors'
Journal, Dec. 16, 1882 (plaintiff, a van guard, ordered by foreman to
drive a van to D. market, and injured in so doing ; phiintitf could not
recover damages, inasmuch as the order was not, by tlie defendants'
rule?, one to which he was l)ound to conform).

,, 670. Mundaij v. Thames Iron Works Co. is reported in 47 L. T., N. S.
351. "The liability of employers is considerably increased, and if the
Legislature had intended that workmen should have a double remedy,
I think we should have found something in the Act to indicate it."
— Manisty, J,



THE LAW OF

MASTEE AND SEEVANT.



INTRODUCTION.



The relation of Master and Servant is created by
contract. Their duties to, and rights against, each
other arise out of contracts, express or imphed. The
only exceptions are duties and rights created by
statute (a).

This is a statement of the law of Master and Servant as it
is and as it has long been ; and abundance of authority in
support of these propositions will be found in this book.
But labourers and workmen were not always free to make
contracts with their masters. Services were not performed
and exacted in virtue of any agreement. Traces of serfage
are said to be still found in the law of Master and Servant.
It may be well to preface the description of the law as it is
with a short history of its growth.

Serfage or villenage is an early English institution ;
even slavery once existed in this country. The ceorl of
early times — who corresponded to the liten, leten, lazzen,
aldien, aldionen of old German society — was not exactly a

(a) See Austin's Jurisprudence, Master and Servant. Out of the re-
voi. L, p. 396, and vol. ii., p. 970, as latiou grow not only rights t?i ^;c? -
to certain peculiarities of the Law of sonam, but rights in ran.

B



2 THE LAW OF MASTER AND SERVANT.

slave. Nor was ho in all respects a freeman ; he had some
of the qualities of both (h). His condition varied at diffe'rent
times ; but it seems to have been always better than that of
the slave or even of the villain as described by Bracton.
His social rank was not fixed. He might purchase his
freedom (c). He might acquire property and become a
thane. He might possess slaves of his own, and he had rights
over the common land of the township (d). Sometimes, at all
events, he had the choice of a master ; and the vxhrgdd or
blood money to be paid by one who killed him, did not
differ very much from the fine paid by the slayer of a free-
man (e). " The ceorl," says Mr. Freeman, " like the ancient
Greek citizen, though he might be looked down upon by an
aristocratic class, was actually a privileged person as com-
pared with a large number of human beings in his own
city or district" (f). But the theows, who were the other
branch of the servile class before the Conquest, were really
slaves. They were fixed to the soil, so that when it was
sold they were sold also (g). They might be beaten and
imprisoned by their masters ; they were freely bought
and sold ; they had no wehvgeld, at all events none
payable in the event of their being slain by their own
masters (/t), whose property they were ; wu-ongs done to a
iheoiu were wrongs done to his owner. Though the sale of
slaves abroad was prohibited, the prohibition was habitually



{b) Waitz's Vcrfassungsgr.ichifhtc, obscure, and f^roat diircronces bi'-

vol. i., p. 176. As to the hit and tweeu the autliorities exist. See

ceorl, see Green's History of the Eng- Stuljbs' Constitutional History, vol.

lish People, vol. i. 11. i. 78 ; Lappenberg, ii. 320 ;_ Gierke's

(c) Thorpe's Dijiloniatarium Angli- Ocnoxsrnsdiaflsrccht ; Waifz^s J'crfaa-

ciim, xviii. ; Stulibs' Constitutional suiigsiicsrhirhtc, vol. i. 17C ; Von

History, vol. i. 79. Keniblu thinks >,\Mnuv,Oixchiclttc dcr Fronhofc, \.V1.

that even the slaves could redeem Compare with the distinction between

themselves in later periods. The vcorh and thcoics the account of

Saxons in England, vol. i. 212. certain slaves given by Tacitus in lys

{(l) Stubbs, vol. i. 81, 1.'5."), 1G2, ii. Germania, c. 24 ami 25.

453. The rrorZ seems generally to have (h) There is a dillerence of opinion

possessed land. on this point : Lappenbcrg, ii. 321 ;

(c) Stubbs, vol. i. 161. Cobb on Slavery, cxxiii. ; and Kem-

(/) Norman Conquest, i. 88. ble, i. 20<J.

((/) The subject is exceedingly



INTRODUCTION. 3

broken. The Cliurch manumitted many slaves, and strove to
improve the lot of others ; and evidence exists of the frequency
with which wcaltiiy landowners freed their bondmen pro
salute aiiimarum. Such laws as Alfred's, which declared
that, if any one should in future buy a Christian slave, the
time of his servitude should be limited to six years, may have
diminished the number of slaves in England (i). But the
institution itself survived ; and the laws of ^thelstan and
Edmund bearing upon slavery are singularly harsh and
cruel. Before and, indeed, after the Conquest, English slaves
were much in demand in Ireland. Bristol was a f^ivourite
mart to which Danes, and especially Irish, resorted in
order to purchase young Englishmen and Englishwomen (k).
Famine often drove freemen to sell themselves and their
children into captivity ; they " sold their heads for meat in
the evil days " (l). Men became slaves because they had com-
mitted gi-ave crimes, and were unable to pay the luehrgeld due
to those whom they had wronged. Slavery was sometimes the
penalty paid by fugitives who availed themselves of the right
of asylum ; and the never-ending succession of wars between
Danes, Mercians, and West Saxons, helped to recruit the
servile class. According to Domesday Book there were about
25,000 servi or theoics, and 108,000 villani or ceorls at the
time when the Survey was made {rti).

In Domesday many varieties of bondmen (n) are mentioned ;

(0 Steveuson's preface to Chron.icon total poi)ul;itiou before the Conquest

Monastcrii de Ahinrjdon, 2, li. and Ixi. at 2,000,000.

(i) Seyer'sMemoires of Bristol, vol. (/() Mention is made among other

i. 319._ Eden in his Historj- of the classes of TiUani intcjH and rillani

Poor, i. 10, mentions a law jiassed in diuiidil. Sir Henry Ellis's intro-

1102, prohibiting the sale of men in duction to Domesday. Tiie latter

market, " Avhieh hitherto hath been ]ihrase is sometimes translated vil-

the common custom in England." See lains in gross— a tenn whicli does

the laws of AVilliam the Conqueror in not, so faras I know, occur in Uraeton,

Thorpe's Collection. Fleta, I'.ritton, or t!io Mirror. The

{I) Homo xiii. annorum sesc distinction clearly drawn in Little-

2}otcst scrvum. faccrc. Theod. Peenit. ton between villains in gross and

xix._ s. 2S, quoted in Stevenson's villains regardant, does not seem to

preface, li. See also Kemble, vol. i. have l)een closely adhered to in

197 ; Stubbs, vol. i. 78. practice See Pjoldon IJook, Surtees

{ill) Turner, iii., 256, estimates the Society, Appendix, Ix.x. and Stubb.s,

B 2



4 thp: law of master and servant.

for example, sei'vi, cotaril (o), horclarii, villani, &c. Some of
these names disappear soon after the Conquest (p), and others
take their place. The exact nature of the changes after that
event in the lot of the servile and semi-servile classes is very-
obscure. The writers who composed treatises on English law
in the reigns of Henry III. and Edward I. throw scanty light
upon the history of villenage during the previous century.
It is often impossible to say whether they describe society as
it then was, or whether they are drawing upon their know-
ledge of the Civil Law, and attempting to mould facts to
suit their own theories. Servus, vlllanus, nativus, and
rusticus arc often used loosely and apparently indifferently
to denote the English serf. Early text-writers, echoing the
language of the Institutes, emphatically state that among
those not free there is no distinction of condition (q). Fleta
and Bracton ignore most of the varieties of serfage mentioned
in Domesday ; they confound villenage with slavery ; and
they copy the commonplaces of Roman jurists as to the
nature and origin of the latter. The probability is that even
before the Conquest the lot of the ceorls had deteriorated ;
that after the Conquest, in consequence of contact and fami-
liarity with serfage as it existed on the Continent, the two
great divisions of men not free were brought nearer to each
other; that the lot of the theow was improved, while that of the
ceorl was lowered ; and that, while slavery tended to disappear,
serfage became harsher than it had been (7-). The remarks



vol. iii. 604. Sec Chroniccnide3IeIsa, one of these names. Domesday Book

vol. iii., l.xi. forcaseof a«ffYti-«.s-beiiig of S. Paul's, xxvi. Von Maurer

gi-antc(l witliout laud ; also Whitaker's {Geschichtn dcr Fronhofe, ii. 3), notices

History of Whalley, i. 175. a similar change in the dc-sciiptiou of

(o) As to tliis turm, see the intro- the .servile classes in (ierniauy.
duction to Jlistoria ct Cnrtularinm (7) JJracton, Lib. L, c. (3 ; Cowell'.s

(if Gloucester, vol. iii. c. 7, and also Institutions, 9. As to tlie su])posed

Hale's Introduction to Register of relation of tlie viVani to the Komau

AVorcester Priory, xlvi. colon i, see Savigny's Kssay, Turner,

{'jj) It is pointed out by Dean vol. ii., and Piiclita's/;M/i7«<iV?icM, ii.

Hale that while the Exche<|uer Sur- s. 214. In the laws of Ina the ex-

vey of lOSfcl mentions four classes of pressions riUnnus and colonus aro

tenants of the manors of S. Paul's, used as interchangeable, s. 19.
the Domesday of 1222 preserves only (/) See Dialog, de Scacc. as to



INTRODUCTION. O

of Glanville (Chief Justiciary in 1180) with respect to vil-
lenage are singularly meagre. So far as they differ from the
accounts of later writers, they show the lut of the villain to a
disadvantage. Glanville mentions few modes of emancipa-
tion. According to him, even the lords could not invest their
villains with complete freedom (s); though emancipated, a
serf might be objected to as a \vitness. In Glanville's time
the rule was recognised that, if a fugitive villain lived away
from his lord and master for a year and a day in a privileged
town, and were received into a guild as a citizen, he was
freed (t). The status of children was governed by the rule
of the Civil Law, according to which the status of the mother
determined that of the child. The son of a freeman and a
bondwoman became a villain. If a freeman married a bondwo-
man, he lost his privileges and remained, so loog as the union
lasted, in the position of a villain {u). Bracton, who "wrote
about 1259, describes villenage at considerable length, and
paints the legal condition of the serf as miserable. He was
liable to uncertain burthens ; he did not know in the evening
what he should have to do in the morning ; the lord might
seize even the imj)lements of husbandry (x) ; and whatever



power of distrainiug on goods of body. Cobb on Slavery, cxxvi. , and

villains for debts due from the mas- Kemble, i. 218.

ters. Stubbs' Select CJiarters, 160. {t) A similar provision is found in

Freeman's Norman Conquest, vol. v. the laws of "William the Conqueror ;

p. 476, and Stubbs, vol. i. 428. Dean see, however, Mr. Stubbs' preface to

Hale in his Introduction to St. Hoveden's Chronicles, 2, xxxviii. where

Paul's Domesday, p. xxxi., adduces grounds for doubting the genuineness

reasons, by comparing the A'a'(;i:Yw?i«cs of tlie ])rovision are shown. Von

singular um jjcrsoyiarum (placed in jMaurer {Stddtvcr/assioig, i. 132, and

order of time between the laws of 395) shows that the rule existed in

Cnut and Edward the Confessor) many German cities. It is curious to

with the Exchequer Domesday and find this provision in force in towns

the records of the manors of St. so remote as Berne and Kewcastle-

Paul's, for thinking that the relations npon-Tyne.

between the owners of the soil and (u) In the laws of Henry II., we

manorial tenants remained almost read Semper a patrc non a matre

unchanged for centuries. gencrationis orclo tcxitur. Cowell,

(s) Lib. 5,c.5. "Theelfect of manu- who wrote in the reign of James I.,

mission was simply to relieve the says, Ilodie tamcn soboles qiuc 2}^i'

slave from the bondage of the master. liberum ex nativa in matrimonio

It did not place him upon the foot- suscitatur libera est.

ing of a free citizen." To be made {x) Compare Magna Charta, art. 9.

free needed the act of the whole In the Mirror, ii. 28, which is usually



6 THE LAW OF MASTER AND SERVANT.

he earned became the property of the master. In Bracton's
treatise, however, signs are not wanting that the actual lot of
the villain was better than the theory of the law would
imply. The subject of donations to serfs, the circumstances
in which lords lost their rights, and many possible modes of
emancipation arc discussed ; and the fact that the life and
limbs of the serf were under royal protection is recognised.
In the treatise by Britton, who wrote about the end of the
thirteenth or beginning of the fourteenth century, other
traces of improvement are visible. The " exception of vil-
lenage " holds good only between the lord and villain, and
that, too, only when the former has been in recent possession
of the latter. " Whoever," says Britton, " kills his villain
shall bear the same judgment as if he had killed a free-
man (y)." The rule of descent is not identical with that of
the Roman law ; a child is free or not according to the con-
dition of the father (s). The fact that Britton mentions
many more modes of emancipation than Glanville is not
without significance. Whatever may have been the lot of
villains immediately after the Conquest, the harsh theory of
the law soon ceased to correspond with their actual condition.
It no doubt varied in each manor; it would greatly depend
on the seneschal, the bailiff, and the pra^positus who directed
the labours of the servile tenants. The obligation to give
tJiCic et thai, auxilium et onerchet, et in ohitw melius catalhnii
might be made an instrument of oppression. But Avhen
we read of villains in the fourteenth century employing
labourers of their own (a), and when we are told of a serf
Avho made a grant of a considerable area of land [b), we see
how far removed a bondman might be from his condition
as described by Bracton. If the services exacted were hard,
they had become for the most part fixed. They were generally



assigned to tlu; rcij,'n of Edward II., (a) lioiul's Introduction to Chroni-

the distinction b(^t\VL'iii slaves and con dr Mclsn, .'j L. ii.

villains is clearly drawn. {b) Sec Pearson's England, vol. i.

(?/) 1. c. a2. 595.

(r) Ibid.



INTRODUCTION. 7

commutable for money payments ; and often they Avcre but
equal to a moderate fixed rent. If the villains were subject to
many restrictions, so were free labourers and craftsmen of the
towns, who must obey the ordinances of their guilds, and Avho
Avere by no means at liberty to practise their trades as they
thought fit. " Anything like the extreme theory of villenage,"
says Professor Rogers, "was, I am convinced, extinct before
the close of the thirteenth century " (c).

Why villenage disappeared so quickly, and, on the whole,
so silently as it did is an historical problem which is but
partly solved. Economical and political causes exercised
much influence. Services were loosely exacted when they
were worth little, and payment in money was preferred
by nobles who lived at court, or were engaged in wars in
France or elsewhere ((7). In the years of confusion and
turmoil due to the Wars of the Roses, a multitude of villains
escaped from thraldom, and others were emancipated in order
that they might become soldiers. The law itself in many
ways favoured liberty. The cases in the Year Books show
that the number of runaways was great, and that lords
might easily lose their rights by inadvertence. It was not
necessary that they should formally manumit their serfs by
putting into their hands swords and lances, the weapons of
freemen, or enfranchise them by deed ; the Courts were



(c) History of Prices, vol. i. 70. tury they threatened a social revolu-

01' course sales of laud -with the tiou." See also Mr. Toulmiu Smith's

villaius appended took place subse- English Guilds, p. llJO ; and as to

(pieut to this. In his preface to the the part ■which villains took in local

Hoveden Chronicles, vol. ii., xl., aifairs the remarks of the same author

Professor Stubbs draws attention to in his work on the Parish, 47J. The

the common exaggerations with jury which made the assessment for

respect to the lot of the villains, and the property tax imposed in 1198,

remarks that their condition "up to might be partly composed of villains,

the reign of Edward 111. was one as There must, however, have been a

full of immunity as of service." "I gi-eat difference in the lot of bondmen

believe that as the knowledge of the in ditferent manors. Those in Dur-

civil and continental systems in- ham seem to have given Iwlf the year

creased among our lawyers, the hard- to the service of the Bishop. Boldou

ships of villenage increased too, and Book, Surtees Society, Appendix,

the definiteness of the theorj' ; until Ixxi.
afterthe troubles of thefourteenthcen- {d) History of Prices, vol. i. SI.



8 THE LAW OF MASTER AND SERVANT.

ingenious in findinfj constructive manumissions. From
early times there existed the important rule, which has already
been mentioned, that if a villain escaped to a privileged city
or royal demesne and dwelt there without let or hindrance
for a year and a day, he could not be seized by his master (e).
If a bondman served seven years as an apprentice, the fact
was proof of his freedom ; the lord's writ de nativo
hahendo — the writ which commanded the sheriff to seize
a fuffitive villain — was barred. If a serf were enfeoffed
of any tenement ; if he were acknowledged by liis lord in a
Court of record to be free ; if he could prove that his master



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