John Macdonell.

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

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obsciue. It was on a motion to arrest judgment, and it is uncertain
whether the negligence was in over-loading a van or in not providing a
proi)er van. The tluty of the defendants as alleged in the declaration was
" to use due and proper care that the said van should be in a proper state
of rejjair, that it should not be overloaded, and that the plaintiti' should be
safely carried thereby." Tlie judgment can scarcely be said to lay down
any J, clear rule of law. It contains loose expressions and analogies,
which are not strictly accurate. It seems to show that the dilference
between the obligations of one who employs a contractor and a nuister
who employs a servant was not present to the Court. "Lord Abinger,"
says Lord Justice Brett, in his evidence before the Select Committee on
Employer's Liability, " wlio had been one of the greatest advocates ever
known at the bar, had an advocate's talent, which mainly consists in the
invention of analogies, and there never was a more perfect master of that
ai'tthan Lord Abinger, and he took it with him to the bench ; and 1 think
it may be suggested that the law, as to the non-liability of masters witli
regard to fellow-servants, arose j'rincipally from tlie ingenuity of Lord
Abinger in suggesting analogies in the case of I'ricdky v. Fowler,
where tlie Court stated the huv thus : ' Where several persons are em-
jdoyed in the conduct of one common enterprise or undertaking, and
tlie safety of each depends much on the care ami skill with which each
other shall ])eiform liis approjiriate duty, each is an observer of the
conduct of others, and can give notice of any misconduct, incapacity, or



(q) Lynch v. Nardin (1841), 1 Q. yciirs of ai^c, got upon cart in play,

I'>. 29, where tlie question wlicther a iiml iinotlior child led the liorse ;

child cwild be guilty of conlrilmtuiy jiluintill injnied ; defendant liable

negligence was decided to be a ijues- though jilaiiitilf a tres])asser, and

tioii of fiict for the jury. (Defeiidiint hud contributed to mischief.) See re-

left liis horse and cart in street iiii- iiKuks in Lyyo v. Ncwbvld (185-1),

attended ; ])l;uiititr, a child of .seven 9 Kx. 302.



WASTEll's LIABILITY T(J SERVANTS. 331

neglect of iluty, and leave the service if the common emjiloyiT will tioI
take such precautions and employ such agents as the safety of the wliole
party may require. By these means the safety of each will he made
more eli'ectually secured than could be done by a resort to the common
emi)loyer for an indemnity in case of loss by the negligence of eacli
othei'.'" The doctrine was clearly laid down in America, in 1842, in
Fancell v. Jloxton <lj ]Vurcester Cor., 4 Met. 49. The first English case
in which it is distinctly stated was Hutrhinsou v. I'or/j, Xcvcdxfle, and
Berwick Jhj. Co., 19 L. J. Ex. 29(5 ; 5 Ex. 343, decided in May, iy.")0.
The doctrine was also aflirmed in IVicjmore v. Jay (22 May, 1850),
19 L. J. Ex. 300 ; 5 Ex. 354 ; Seymour v. Maddox (1851), 20 L. J.
Q. B. 327 ; 16 Q. B. 32(3 ; and SJnjjp v. Eadern By. Co. (1851), 9 Ex.
223 ; 23 L. J. Ex. 23.

The doctrine has never been a]>plied except to acts of negligence, and
the like. It is clear that it lias no application to risks which are not
incidental to the service. See Mansfidd v. IJuddeley, 34 L. T. 096.



APPENDIX B.

Tli6 Jolloinwj are the chief cases as to Common Employmeaf : —
Fellow Servants.

Hutchinson v. York and NeiLxastle By. Co. (1850), 5 Ex. 353. (Servant
of defendants and engine-driver of train in which he was riding in dis-
charge of his dutv.)

Wigviore v. Jaii (1850), 5 Ex. 343 ; 19 L. J. Ex. 300. (See p. 303.)

Wiggett v. i'oa:\l856), Ex. 832. (See p. 308.)

Degg v. Midland By. Co. (1857) ; 1 H. & N. 773 ; 26 L. J. Ex. 171.
(See p. 314).

Senior v. JFard (1859), 1 E. & E. 385. (Pitman and lianksiuan of a
colliery.)

Searle v. Lindsay (1861), 31 L. J. C. P. 106 ; 11 C. B. N. S. 429 ;
10 VV. E. 89. (See p. 305.)

Potter V. Faulkner (1861), 1 B. & S. 800 ; 8 Jur. X. S. 259 ; 31 L. J.
Q. B. 30 ; 10 W. R. 93. (See p. 314.)

IFaller v. South-Eastern By. Co. (1863), 32 L. J. Ex. 205 ; 9 Jur. X. S.
501 ; 2 H. & C. 102 ; 8 L. T. 325 ; 11 W. R. 731. (Railway guard and
ganger of plate-layers. )

Gallagher v. Piper (1864), 16 C. B. X. S. 669 ; 33 L. J. C. P. 329.
(See p. 304.)

Lovegrove v. London, Brighton and. South-Coast By. Co. (1864), 16 C. B.
X. S. 669 ; 33 L. J. C. P. 329. (Plaintiff, a laboiu'er, in the service of
defendants, employed in filling trucks with ballast ; injured by the
negligence of another servant in i)lacing insecurely temporary rails.)



332 THE LAW OF MASTER AND SEllVANT.

Morqan v. Vale of Neath By. Co. (1864), L. E. 1 (,). B. 149 ; 35 L. J.
Q. B. 23 ; 13 L. T. N. S. 564 ; 14 W. R. 144 ; a 13. & S. 570 ; 10 Jur.
N. S. 1074 ; 33 L. J. Q. B. 2()0. (Sec p. 306.)

Hall V. Johnso7i (1865), 3 H. & C. 589 ; 34 L. J. Ex. 222 ; 13 W. R.
411 ; 11 L. T. N. S. 779. (See. p. 306.)

Miirphy v. Smith (1865), 12 L. T. N. S. 605. (Plaintift', a boy of
tender years, and a person Avho managed the works in the absence of the
manager.)

Feltham v. England (1866), L. B. 2 Q. B. 33 ; 36 L. J. Q. B. 14 ;
7 B. & S. 676 ; 15 W. B. 151. (Pluintitf, a workman, in the employ-
ment of maker of locomotive engines, and foreman of the workshop, his
snperior, fellow servants ; plaintiti' injured by the giving way of piers
supporting a tramway and ti'avelling-crane ; defendant not liable, there
being no evidence of personal negligence.)

Timncii V. Midland Ry. Co. (1866), L. R. 1 C. P. 291. (See p. 306.)

Mumiii V. Currie (1870), L. R. 6 C. P. 24. (See p. 308.)

Howell's V. Landore Siemens Steel Co. (1874), L. R. 10 Q. B. 62.
(See p. 306.)

Lovell V. Hovell (1876), L. E. 1 C. P. D. 161 ; 45 L. J. C. P. 387.
(Plaintiff, a licensed waterman and lighterman employed by defendant,
a warehouse- keeper, at weekly wages, to moor and unmoor barges ; he
was in the habit of passing through the warehouse on the way to manager's
office to receive orders or when sent for ; being sent for, he was on his
way to the ofhce, and he was knocked down by a sack of grain through
the negligence of defendant's servants in hoisting goods.)

Eourb^ r. White Moss Co. (1876), L. R. 1 C. P. D. 556 ; 2C. P. D. 205.
(See p. 309.)

Cumcayv. Belfast Ry. Co.' (1877), 11 Ir. C. L. 345. (General traffic
manager and milesman. Exchetpier Chamber affirming decision of
Common Pleas.)

Charles v. raijlor (1878), L. R. 3 C. P. D. 492 ; 38 L. T. 773 ; 27 W.
R. 32. (Plaintilf, hired by A. to assist in unloading a barge at the
wharf of defendants, who were brewers. Plaintilf and A., with other
men, formed a gang, which Avas paid by defendants at \s. 9d. a ton ; the
money to be paid to one of the men and distributed among the others.
Defendants alone might dismiss plaintiff. A servant of the defendants
engaged in moving barrels negligently let one of them slip, and plaintitt'
was injured. A. held to be a foreman and not a contractor, and plaintilf
and A. fellow-ser\-ants.)

Not Fellow Servants.

Vose v. Lancashire and Yorkshire Ry. Co. (1858), 2 H. & N. 728, N. S,
364 ; 27 L. J. Ex. 249. (Plaintiff, reju-esentative of deceased in service
of East Laneashire Ry. Co., while at work in a station in the joint occu-
pation of that company and the defendant company, killed by an engine
belonging to the latter, which was Ix-ing shunted. The persons
employed in shunting joint servants of the two com])anies, but the
engine-ilriver and the persons employed in the same way as the deceased
were separate servants. The accident occasioned by defects in the rules
of the station.)

y\hrahmn. v. Reynolds (1860), 5 II. & N. 143; 6 Jur. N. S. 53 ; 8 W.
R. 181. (See p. 311.)

Fletcher v. Peto (1862), 3 F. & F. 368. (PlaintilT engaged by wharlinger



master's liability to servants. 333

to laiul bai^s of guano and cany tlicni to warehouse to be piled tliere by
day-labourers; plaintilV injured by the fall of some of the bags, which
had been negligently piled. The jury held that the plaintiff was
engaged in separate work from that of defendant's men.)

Cleveland v. Siners (1864), 16 (J. B. N. S. ;3S)9. (A mere passer by being
asked by a workman to give information as to mode of making a hole
in a gas pipe ; not a volunteer assistant, withiTi Degg v. Midland Ry. Go.)

WarlmrUm v. Great Western Ry. Go. (IHfiO), L. II. 2 Ex.30 ; 30 L. J.
Ex. 9 ; 4 H. & C. 695 ; L") W. R. 108. (Plaintiff, a porter in the service
of the London and North- Western Ry. Co., at their Manchester station,
which was used by the defendants' Company, injured by the negligence
of an engine-driver in the service of the defendants' company ; the
defendants' servants, when within the station were suliject to the rules
of the London and North- Western Ry. Co. Defendants liable.)

Smith V. Steele (1875), 32 L. T. N. S. 195 ; 44 L. J. Q. B. 60. (Pilot
engaged by defendants under the compulsory clause of Merchant Ship-
ping Act. 1854, and shipowner's servants.)

Turner v. Great Eastern Ry. Co. (1875), 33 L. T. 431. (See ]). 313.)

Wright v. London and North- Western Ry. Go. (1876), 45 L. .1. q. B.
570 ; L. R. 10 Q. B. 298 ; L. R. 1 Q. B. D. 252. (See p. 315.)

Swaimon v. North-Eastern Ry. Co. (1878), L. R. 3 Ex. 1). 341 ; 47
L. J. Q. B. 372. (See p. 312.)



SCOTCH CASES.
Fellow Servants.



Reid V. Bartonshill Coal Co. (1858), 20 D. 13 ; 3 Maeq. 266 ; Pater-son,
App. L, 785. (See p. 306.)

Wilson V. Merry (1868), L. R. 1 S. & D. App. 326. (Miner and general
manager of mine fellow- servants, though latter had been guilty of negli-
gence before the former entered the service of the plaintiff.)

Macfarlane v. Caledonian Ry. Go. (6 Dec. 1867), 6 :^Iacq. 102. (A rail-
way labourer and an inspector.)

Leddy v. Gibson (Jan. 1, 1873), 11 M. 304. (Sailor and captain of a
merchant vessel.)

Not Fellow Servants.

Clark V. McLaren (Nov. 2, 1871), 10 M. 31. (Plaintiff employed in a
chemical work ; engaged by master to move under the managei- of the
chemical department a roof which had been injured ; plaintiff' hurt by
the falling in of roof. Held that the doctrine of common employment
did not apply, as neither workman nor manager engaged in his proper
work.)

Adams v. Glasgoxo and South-Wcstern Ry. Co. (Dec. 7, 1875), 3 E. 215.
(A., employed as fireman by the Caledonian Ry. Co., killed on line of
defendants^ over which the Caledonian Ry. Co. had running powers, by
the negligence of a clerk in the service of defendants.)



334 THK LAW OF MASTER AND SERVANT.

AMERICAN CAS?]S.
Fellow Servants.

Ilard V. J'ermoiit (Antral I'lj. Co., 32 Vt. 473. (Mrcliaiiics in inachine
shop of (lefendiints, and servants in charge of the train.s.)

Shernum v. Eocheater I'lf. Co., 17 N. Y. 153. (A brakesman of a train
and engineer or conductor who has directed it to he run at an unsafe
speed.)

Crilmau v. Fasten) Ri/. Co., 92 ilass. 233. (Carpenter em])loyed
by defenchints ; part of liis duty to travel to and from his place of work
on defendants' line. Felh)w-servant of pointsman.)

Johnson v. Boston, 118 Mass. 114. (See p. 48.)

Holder v. Fitchburg Railroad, 129 Mass. 268. (A brakesman of a
train and workmen employed in widening the railway.)



The following are some of the chief decisions relative to the duty of
masters in regard to viachinery and plant : —

Master Not Liable.

Seymour v. Maddox (1851), 20 L. J. Q. B. 327 ; 16 Q. B. 326. (See
p. 303.)

SJcijyp V. Eastern Counties liij. Co. (1853), 9 Ex. 223 ; 23 L. J. Ex. 23.
(Plaintiff employed to attacli carriages to locomotive ; defendants did
not employ a sutticient number of men ; but i:)laintiff had worked
several months without anv comphunt.)

Ihjnen v. Leach (1857), 26 L. J. Ex. 221. (Defendant, from motives of
economy, substituted for tlie usual and safest mode of lifting sugar
moulds a clip. The deceased, a labourer in the employment of defen-
dant, fastened the clip, whicli slipped, so that a mould fell, and kiUed
the deceased. No case to go to the jury ; tlie labourer having known
all the circumstances, and liaving voluntarily used the macliinery.)

Ormond v. Holland (1858), K. B. & K 102. (I)elen(hants, builders,
and plaintiff in their em])loyment as bricklayer ; plaintiff injured by
the breaking of a round in a ladder. " There being no evidence of
personal negligence, either by interference in the working oi' in hirinf^
the servants, or in choosing the implements." Defendants not liable.)

Alsop V. Yates (1858), 27 L. J. Ex. D. 156. (Defendants set up a
hoarding which projected too far into the street ; a lieavy machine was
put between the hoarding and building ; a ladder upon which jdaintiff
was, near it ; ])laintiif had complaine<l of the ]iosition, and the defendant
had said that it was dangerous and would be altered. A cart ran against
the hoarding, and the machine fell upon the plaintiff, and knocked him
down. Defendant not liable because, inter alia, the plaintiff continued
working with full knowledge.)

CriJJiths v. Cidloir (1858), 27 D. J. Ex. 404. (See p. 325.)

Smior v. JFard (1859), 1 K. & E. 385. (See p. 329.)

Riltij V. Baxendale (1861), 6 H. & N. 445 ; 30 L. J. Ex. 87 ; 9 W. R.



master's liability '10 SERVANTS. 335

347. (Declaration by adiuiuistralrix that J. li. Avas servant of tlie
cU'fendants on tlie tenn.s that tliey wonld take due and onlinaiy cai-c not
to expose the said J. I{. to extraoidinary risk and ihinf,'er in the course of
his eni))lovment ; yet the defemhmt did not take due and ordinary care
not to expose, &c. No such contract couhl be implied from ordinary
contract of service.) rott:^ v. Vnrt of (kiiide Rij. Co., 2 L. T. N. S. 282.

(hjden V. Jiuniviens (18(i3), li F. & F. 751. (Workmen emph)yed in
shoreing up arch, and injured l)y falling in of it ; defendants, not having
knowledge or reasonabli; means of knowledge of the danger, not
liable.) See also rnrmat v. Jl^ehb (1856), 5 L. J. C. P. 51.

Brown v. Accriwjtoii Cotton, Co. (1805), 3 H. & C. 511 ; 34 L. J. Ex.
208 ; 13 L. T. N. S. 94. (Defendants erected a mill by contracts made
with ditferent persons; appointed clerk of works to superintend build-
ing ; plaintill', employed l)y clerk of works, injured l)y fall of floor.
Defenckuits not liable, there being no evidence of personal negligence on
the part of dofen(hints or personal interference.)

Haxton V. Hav-kworth (1872), 26 L. T. 851. (See p. 317.)

Alien V. ThQ New Gas Co. (1876), L. l\. 1 Ex. D. 251 ; 45 L. J. Ex.
668 ; 34 L. T. 541. (See p. 322.)

Maddich v. (f. N. Ry. Co. (1877), W. N., p. 251.

Liable.

Roberts v. Smith (1857), 2 H. & N. 213 ; 3 Jur. N. S. 469 ; 26 L. J.
Ex. 319. (Plaintiff, a bricklayer, in tlie employment of defendants,
injured by the fall of a scaffold ; the materials for tlie scaffold were
defective ; one of the labourers engaged in constructing the scaffold
having tried the logs, one of the defendants said, " They will do very
well ;"don't break any more. " A new trial, on the ground of evidence
of personal interference and negligence by master). See also JVehb
V. Rennie (1865), 4 F. & F. 608.

Williams v. Clough (1858), 3 H. & N. 258. (Defendant ordered
plaintiff to use a ladder, which he knew to be unsound ; plaintiff
injured ; defendant liable.)

Caswell v. JForth (1856), 5 E. & B. 849. (See p. 479.)
Doel V. Sheppard (1856), 5 E. & B. 856. (See p. 479.)
Murphii V. Phillips (1876), 35 L. T. 477 ; 24 W. R. 647. (See p. 320.)
Holmes v. Worthiwjton (1861), 3 F. & F. 533. (See p. 327.)
Davies v. Enqland (1864), 33 L. J. Q. B. 321. (See p. 321.)
Holmes v. Clarke (1862), 31 L. J. Ex. 356. (See p. 327.)
Watlinc] v. Oastler (1871), L. \l. 6 Ex. 73 ; 40 L. J. Ex. 43 ; 23 L. T.
815 ; 19 W. R. 388. (Declaration by plaintiff as administratrix of G.
W. for that it was necessary for G. AV. in the course of his employment
to get into a certain machine which was constructed defectively and in
an unsafe manner, as the defendants well knew. While G. W. was so
employed the machine was suddenly put in motion, and G. W. injured.
Not necessary to aver that G. W. was ignorant of the defective([state of
machine.)

Britton v. Great Western Cotton Co. (1872), L. R. 7 Ex. 130. (See
p. 327.)



336 THE LAW OF MASTER AND SERVANT.

AMERICAN CASES.

Liable.

Huddledone v. Lnicell Machine S/w^), 10(5 Mass. 282. (Plaintiff em-
ployed as a watcliiuan in machine shuj) (if defendants. A portion of the
floor over -which he had to jiass in the discharge of his duty was in a state
of decay ; the defendant knew or might have known of the dangerous
condition of the lloor ; Court refused to say he was guilty of negligence ;
a question for the jury whether plaintiff was negligent in remaining
with his knowledge that the floor was decayed.)

Byan v. Fouier, 24 N. Y. 410. (Plaintiff', a girl of fourteen, employed
by defendant in his mill ; over the water wheel was a privy, supported
hj wooden scantling. The timber had become somewhat rotten ; and
there was evidence that some repairs oi'dered by defendant had weakened
the sujiport ; plaintiff injured. Defendant liable.)

Laning v. N. Y. Central Ibj. Co., 49 N. Y. 521. (Defendant retained
in his service a foreman, who was drunk and who had employed an un-
skilled workman to superintend scaffold, liable for injuries caused
by its defects.)

Not Liable.

Faidhier v. Eric Railroad Co., 49 Barb. N. Y. 324. (Plaintiff, a servant
of defendants, injured ))y the breaking down of a l^ridge due to dry-rot
in its timbers ; no personal negligence. Defendants not liable.)



PAET II.

STATUTE LAW,



CHAPTER I.

SUNDAY OBSERVANCE.

The 29 Charles II. c. 7 (1070) (an Act for the better
observation of the Lord's Day, commonly called Sunday), is
the only statute on this subject to which it is necessary to
refer. Section 1 declares : —

" That no tradesman, artificer, workman, laLourer, or other person
whatsoever, shall do or exercise any worldly labour, business, or work
of their ordinary callings upon the Lord's Day, or any part tliereof
(works of necessity and charity only excepted) ; and that every
person being of the age of fourteen years or upwards offending in the
premises, shall for every such offence forfeit the sum of five shillings ;
and that no person or persons whatsoever shall publicly cry, show
forth, or expose to sale any wares, merchandises, fruits, herbs, goods or
chattels whatsoever upon the Lord's Day, or any part thereof, iipon j^ain
that every person so offending shall forfeit the same goods so cried or
showed forth or exposed to sale."

The penalties under this Act are rarely applied (c). But
it is occasionally essential to know whether contracts made
on Sunday are illegal. The Courts have attached important
limitations to the scope of the statute. The words
" other person whatsoever" have not been read literally.
Thus in Sandhnaii v. Breach (h), it was held that they did

{a) See 34 k 35 Vict. c. 87, con- (b) (1827), 7 B. &;C. 96,9 D. & R. 976

tinued by 42 & 43 Vict. c. 67, re- (The Act does not includecontracts to

stricting proceedings under 29 Chas, carry passengers by coach on aSuiiday ;

II. c. 7. consequently action lies against owner



338 THE LAW OF MASTKU AND SERVANT.

not includo the owner and driver of a stage-coacli, on the
general principle of construction, that where general words
follow particular words they are to be read as applicable to
persons or tilings rjusdmi (jcnrrit!. When an attempt was
made to bring within the Act farmers who employ labourers
on a Sunday, the Court of Queen's Bench (c) decided that a
farmer who employed labourers to cart hay, although he
himself worked, was not liable to the penalties of the Act.
The strange result follows, that an agricultural labourer who
works on Sunday may be punished, while the farmer who
employed him, and who perhaps took part in the work, cannot
be punished.

The Courts have also limited the application of the statute
to cases in which contracts are made " in the course of the
ordinary calling." This was the construction adopted in
Brv/nj V. Defonfaine (d). There the question was, whether
a sale of a horse on a Sunday, not in the course of the ordi-
nary calling of the vendor, Avas void so as to disable him from
recovering the price. The Court decided that it was not
void. Though questioned by Park, J., in Smith v. Sj)arr(nv (e),
this construction of the statute is now settled. Accordingly,
a contract of hiring for a year made between a farmer and a
labourer is not affected by the statute, hiring not being, it
was said, one of those things which the ordinary duties of a
farmer require him to perform (/'). Such also was the view
of the Court of Exchequer with respect to an agreement by
an attorney, whereby he agreed to become personally liable
in respect of a debt owing by a client (//). On the other

of staj3;e-coach for refusing to take also Triqqs v. Lester (1866), L. R.

l>laintiiras a passenger on Sunday). 1 Q. V>. 259; 14 W. E. 279; 13 L. T.

See, on the other hand. Ex 2>nrtc N. S. 701.

Middhton (1824), 3 15. & C. 164, (r) (1827), 4 liing. 84 ; 2 C. ct P.

41). & I\. 824, wlicre a driver of at«?i 544 ; 12 Moore, 266 (action will not

■was held to be under .3 Car. I. c. 4. lie upon a contract made and com-

(c) R. V. Silvester (18«;4), 33 L. J. plcted on a Sunday).
]SI. C. 79; 10 Jur. N. S.; 12 ^V. IJ. (f) Jhw v. U'/iitnash (1827), 7 15.

375 ; !) L. T. N. S. 682 ; 4 B. & S. & C. r,'.m ; 1 M. .'t R. 4.'')2.
!t27 ; "other persons then must mean ((/) Poitr v. DiiJcen (1834), 1 C. lil.

otlier persons not quite a tradesman, k W. 422; 5 Tyrw. 116; Norton v.

labourer, &c.," 15lackbnrn, J. PoimU (1842), 4 M. & G. 42 (the

{d) (1808), 1 Taunt. 131. See giving by one tradesman to another



SUXDAY OnSEUVAXCE.



330



liaud, a horscJealercauiiot maiutain an action upon a contract,
even if made privately, for the sale and warranty of a horse,
provided it were entered into on a Sunday (It).

Only one penalty can be incurred in the course of a
day (?■).

In some American cases it has been held that if a master
forces a servant to labour on a Sunday it is a good cause for
leaving the service (k). This would appear to be the case
here also. In a Scotch case (0, the House of Lords laid it
down that an apprentice to a barber, who was bound not to
absent himself from his master's business on holidays or week-
days, late hours or early, without leave, and who went away
on Sundays without leave, and without shaving his master's
customers, could not be lawfully required to attend his
master's shop on Sundays ; the ground of the decision was
that shaving was not a work of necessity or mercy.



tradesman of a guarantee for the
faithful services of a traveller is not
an act clone in his ordinary calling^.
(h) Fcnncll v. Pddler (1826), 5 13.
& C. 406 ; 8 D. & K. 204. See also
as to "ordinary calling," IVollon v.
(?rtiv'?i(1850), 16 Q. B. 48 (enlist-
ment of a soldier by a recruiting
officer not within the Act, and not
invalid by reason of taking place on a
Sunday) ; Scarfc v. Morgan (1838),
4 M. & W. 270 (sending a mare to a
i'armer to be covered by a stallion not
within farmer's ordinary calling) ;
Bloxsomc V. Williams (1824), 3 B. &
C. 232 ; 5 D. & 11. 82 (A. not know-
ing that V>. was a horse-dealer, made
a verbal bargain with him on a
Sunday for purchase of a horse ;
assuming the contract to be void,
the purchaser was ignorant of the
fact that the vendor was e.xercising
his ordinary calling on the Sunday,



the former was therefore entitled to
the price for breach of



Burden (1770), 2



recover
warranty).

(i) Crcppi-
Cowp. 640.

(Jc) Coin V. St. German Brown,
Penn. 24, and Wariier v. Smith, 8
Con. 14.

(I) Phillips V. Lines (1837),
4 C. & F. 234. See, however, JFil-
son V. Simson (Sc), 11 July, 1844,
where the Court of Session held that
a fanner was justified in dismissing
without notice a farm labourer, who,
when requested by the farmer to
remain at home to attend the
cattle, which were ill, in order that
the other servants might go to
church, refused so to do. For a
review of the English and American
cases, see Benjamin on Sale, 2nd
edition, 442. See also the Factory
Act of 1878, sec. 21 and 51.



z 2



CHAPTER II.

THE EMBEZZLEMENT ACTS,

In consequence of defects in the Common Law witli res-
pect to larceny or embezzlement by servants, the Legislature
passed, especially before the introduction of the factory sys-
tem, a number of Acts for the purpose of preventing the
embezzlement of materials and tools, and the selling and



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