John Macdonell.

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

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as compared with the weight of the materials received, and it shall be
proveil upon the hearing of the case that such materials were knowingly
and fraudulently delivered to tlie i)arty charged whilst in a damp state,
so that the apparent weight thereof was thereby increased, it shall be
lawful for such justices or court to award to the defendant such further
sura of money not exceeding twenty pounds as to such justices or court
shall seem tit, to be paid liy such prosecutor as a compensation for the
injury done ; and in default of payment such costs and allowiuices and
compensations maybe levied bydistress and saleof the prosecutor's goods."
Section 22. "That where any person shall be charged on oath witli
any otience punishable under this Act, one justice may receive the original
information and summon the person charged to appear before any two
justices of the peace at a time and jilace to be named in such summons,
and if he shall not appear accordingly, then the justices there present
may either proceed to hear and determine the case ex parte, or any of
such justices may issue a warrant for apprehending such person, and
bringing him to answer the said charge before any two or more justices,



358 THE LAW OF MASTER AND SERVANT.

(ir the justice liefore wlimn the chai'ge shall lie made may, if he shall so
think tit, issue such warrant in the lirst instance without any previous
summons, and commit the jjerson so charged to i)rison, in order that lie
may be brought forward lor trial (unless he enter into such bail as may
be required by such justice for his appearance at such time and place as
shall be appointed) ; and the justices before ■whom the person charged
shall appear or be brought shall proceed to hear and determine the case ;
and after adjudication all and every the subsequent ])roceedings to
enforce obedience thereto, whether respecting the penalty, forfeiture,
distress, imprisonment, costs, or other matter or tiling relating thereto,
may be enforced V)y any one of the said justices "(h).



24 & 2.-) VICT. c. OG (18G1).

An Act to consolidate and amend the statute lam of E)i(jland and Ireland
relating to larcentj and other similar offences.

As to Larceny from Mines.

Section 38. ""Whosoever shall steal, or sever with intent to steal,
the ore of any metal, or any lapis calaminaris, manganese or mundick, or
an\- wad, black cawke, oi' black lead, or any coal or cannel coal, from any
mine, bed, or vein thereof respectively, shall be guilty of felony, and
lieing Convicted tliereof, shall lie lialde, at the discretion of the Court,
to be imprisoned for any term not exceeding two years, with or without
hard lab<jur, and with or withf)ut solitary continement" (o).

Section 39. " AVhosoever being employed in or about any mine, shall
take, remove, or conceal any ore of any metal, or any lapis cahiminaris,
manganese, mundick or other mineral found or being in such mine, with
intent to defraud any projjrietor of oi- any adventurer in such mine, or
any workman or miner cmj)loyed therein, shall be guilty of felony, and
being convicted thereof shall be liable, at the discretion of the Court, to
be im])ri8oned for any term not exceeding two years, with or without
hard labour, and with or without solitary confinement."

As to Larceny in Mam factories.

Section 62. " Whosoever shall steal to the value of ten shillings, any
woollen, linen, hempen, or c(jttoii yarn, or any goods or article of silk,
woollen, linen, cotton, alpaca, or mohaii', or of any one or more of those
materials mi.xed with each other, or mixed with any other material,
whilst laid, placed, or exposed, during any stage, })rocess, or ju-ogress of

(/i) Sec Statute Law Kcvisioii Act, (o) li^.r v. irM (1835), 1 Moore

1S74(N(). 2), and :J8 & :J9 Vict. c. 86, CA\i:i\. See 39 & 40 Geo. III. c. 77,
s. 17. .s. 4.



TlIJi; KJI13EZZLEMENT A(;TS. 3.">iJ

luanufacture Qy) in any LuildinL,', field, or otlier place, sliall be guilty of
felony, and being convicted thereof shall be liable, at the discreti(jn of
the Court, to be kept in penal servitude for any term not exceeding
fourteen years, and not less than three years, — or to be imprisoned for
any term not exceeding two years, with or without hard labour, and
with or without solitary confinement."

As to Larcenii or Emhezdement hj Clerks, Servants, or Persons, in the Puhlic

Service.

Section G7. " Whosoever, being a clerk or servant ((/), or being em])loyed
for the purpose or in the capacity of a clerk or servant, shall steal any
chattel, money, or valuable security belonging to ov in the jDossession or
])Ower of his master or employer shall be guilty of felony, and bein"-
convicted thereof shall be liable, at the discretion of the Court, to be
kept in penal servitude for any term not exceeding fourteen years, and
not less than three years, or to be imprisoned lor any term not exceeding
two years, with or without hard lab(jur, and with or without solitary
confinement, and, if a male under the age of sixteen years, with or
without whipping."

Section G8. "Whosoever, being a clerk or servant, or being employed
for the purpose or in the capacity of a clerk or servant, shall fraudulently
embezzle any chattel, money or valuable security, which shall be deli-
vered to or received or taken in possession by him for or in the name or
on the account of his master or employer, or any part thereof, shall be
deemed to have feloniously stolen the same from his master or employer,
although such chattel, money, or security was not received into the po.s-
session of such master or employer otherwise than by the actual posses-
sion of his clerk, servant, or other person so employed, and being con-
victed thereof shall Ije liable, at the discretion of the Court, to be kept in
penal servitude for any term not exceeding fourteen years and not less
than three years, — or to be imprisoned for any term not exceeding two
yeai-s, with or Avithoiit hard labour, and with or without solitary confine-
ment, and, if a male under the age of sixteen years, with or without
whipping."



24 & 25 VICT. c. 97 (18G1).

An Act to consolidate and amend the statute laiv of England and Ireland
relating to malicious injuries to 'property.

Section 14. " Whosoever shall unlawfully and maliciously cut, break,
or destroy, or damage with intent to destroy or to render useless, any

{p) B. V. Woodhcad (1836), 1 M. k (q) See Part I., Chapter III.

R. 549.



3C0 THE LAW OF MASTER AND SERVANT.

gooils or article of silk, Avoollcn, linon, cotton, hair, luoliair or alpaca, or
of any one or more of those materials mixed with each other or mixed
with any other material, or any framework knitted piece, stocking, hose
or lace, being in the loom or frame, or on any machine or engine, or on
the rack or tenters, or in any stage, process or progress of manufacture,
or shall unlawfully and maliciously cut, break, or destroy, or damage
with intent to destroy or to render useless, any warj) or shute of silk,
woollen, linen, cotton, hair, mohair, or alpaca, or of any one or moi'e of
those materials mixed with each other or mixed with any other material,
or shall unlawfully and maliciously cut, break, or destroy, or damage with
intent to destroy or render useless, any loom, frame, machine, engine, rack,
tackle, tool or implement, whether fixed or moveable, prepared for or
employed in carding, spinning, throwing, weaving, fulling, shearing, or
otherAvise manufacturing or preparing any such goods or ai-ticles, or shall
by force enter into any house, shop, building, or place, with intent to
commit any of the offences in this section mentioned, shall be guilty of
felony, and being convicted thereof shall be liable, at the discretion of the
Court, to be kept in penal servitude for life or for any time not less than
three years, — or to be imprisoned iov any term not exceeding two years,
with or without hard laljour, and with or without solitary confinement,
and, if a male under the age of sixteen years, with or without Avliipping."
Section 15. " Whosoever shall unlawfully and maliciously cut, break,
or destroy, or damage with intent to destroy (r) or to render useless, any
machine or engine, whether fixed or moveable, used or intended to be
used for sowing, reaping, mowing, threshing, ploughing or draining, or
for performing any other agricultural operation, or any machine or
engine, or any toed or implement, whether iixed or moveable, prepannl
for or employed in any manufacture whatsoever (except the manufacture
of silk, woollen, linen, cotton, hair, mohair or alpaca goods, or goods of
any one or more of those materials mixed with each other or mixed with
any other material, or any framework knitted piece, stocking, hose or
lace), shall be guilty of felony, and being convicted thereof shall be
liable, at the discretion of the Court, to be kept in penal servitude for
any term not exceeding seven years, and not less than three years, — or to
be imprisoned for any term not exceeding two years, with or without
hard labour, and with or without solitary coniincnicnt, antl, if a male
under the age of sixteen years, with or without wliiitjiing."

('/•) Ji. V. InsJicr (1865), L. K. 1 C. C. 7.



THE KMBE/.ZLKMKNl' ACTS. 3G1



26 &-27 VICT. C. 103 (l«G3j.

An Act to amend the law in certain cases of luiaa^j^jro^jriation by servants ut
the lyropertij of tJieir 'iiianters.

" Wliereus the olfcuce ol' taking coin or other I'ood Ly a servant i'roni
the possession of his master, contrary to his orders, lor the purpo.-e of
yiving the same or of having the .same given to the horses or other
iUiiuuds of such master, is by law a felony (a) ; Anil whereas it is
desirable to alter the law in this respect : " Ue it enacted as follows :—

1. If any servant shall, contrary to the orders of his master, take from
his possession any corn, pulse, roots, or other food, for the purpose of
giving the same or of having the same given .to any horse or other
animal belonging to or in possession of his master, the servant so oifeiid-
iug shall not by reason thereof be deemed guilty of or be proceeded
against for felony, but shall, on conviction of such offence before two
justices of the peace, at their discretion, either be imprisoned with or
without hard lab(»ur, for any term not exceeding three months, or else
shall forfeit and pay such penalty as shall appear to them to be meet, not
exceeding the sum of live pounds, and if such penalty shall not be paid,
either immediately after the conviction, or within such period as the said
justices shall at the time of the conviction appoint, the servant so offend-
ing shall be imprisoned, with or without hard laboiu", for any term not
exceeding three months, unless such penalty be sooner paid ; provided
always, that if upon the hearing of the charge the said justices shall be
of opinion that the same is too tritiiiig, or that there are circumstances
in the case which render it inexpedient to inflict any punishment, they
shall have power to dismiss the charge, without proceeding to a convic-
tion : provided also, that if upon the trial of aiiy servant for feloniously
taking from his master any corn, pulse, roots, or other food consumable
by horses or other animals, such servant shall allege that he took the
same under such circumstances as would constitute an ott'euce punishable
under this Act, and thereof shall .satisfy the jury charged with liis
trial, then it shall be lawful for^such jury to leturn a verdict accordingly ;
and thereupon the Court before which such trial sliall take [dace .shall
proceed to award such punishment against such servant as may be
awarded by two justices of the peace on the conviction of any person
under the provisions of this Act : provided also, that in case of non-pay-
ment of any penalty to be imposed by the Court on such servant, he
shall be imprisoned, with or without hard labom-, for any term not ex-
ceeding three months, as the Court shall order, unless such penalty shall
be sooner paid.

(s) This Act was passed in consequence of the decision in R. v. Privett (1846),
1 Den. C. C. 193.



3G2 THE LAW OF MASTER AKD SEUVAKT.

Section 2 enacts power to aiipeal against convirlion.

Section 3 enacts that no certiorari shall lie.

Section 4 enacts that summary proceedings may be taken under 11 &
12 Vict. c. 43, except in London and the Metrojjolitan i)olice district.

Section 5 enacts that the Act shall e.xtend to England <inly.

Section 6. This Act shall commence and take ellect from the 1st day
of September, 18C3.



CHAPTER III.

servants' characters.

?y> GEORCJE III. c. :>(; (ITDi).

An Act for freventiiKj the anuiterfeiting of certificate.'; of the characters of

servants (a).

"Whkreas many false and counterfeit cliaiacters of servaiitri have either
been given personally, or in writing, by evil disposed persons being, or
pretending to be, the master, mistress, retainer or superintendent of such
servants, or by persons who have actually retained such servants in their
respective service, contrary to truth and justice, and to the -peace and
security of his Majesty's subjects: And whereas the evil herein com-
plained (if is not only tlitticult to be guarded against, but is also of great
magnitude, and continually increasing, and no sufficient remedy has
hitiierto been applied. Be it therefore enacted by the King's most
excellent majesty, by and with the advice and consent of the Lords
spiritual and temporal, and Conmions, in this present Parliament assem-
bled, and by the authority of the same, that from and after the first day
of July, one thousand seven hundred and ninety-two, if any person or
persons shall falsely ])ersonate any master or mistress, or the executor,
administrator, wife, relation, housekeeper, steward, agent, or servant of any
such master or mistress, and shall, either personally or in writing, give any
false, forged or counterfeited cliaracter to any peison offering him or her-
self to be hired as a servant into the service of any person or persons,
then, and in such case, every such person or persons so offending shall
forfeit and undergo the penalty or punishment hereinafter mentioned
and in that behalf pi-ovided.

2. And be it further enacted by the authorit)- aforesaid, that from and
after the said first day of July, one thousand seven hundred and ninety-
two, if any person or persons shall knowingly and wilfully pretend, or
falsely assert in writing, that any servant has been hired or retained for
any period of time whatsoever, or in any station or capacity whatsoever,
other than that for which or in which he, she, or they shall have hired
or retained such servant in his, her, or their service or employment, or

(a) See as to servants' characters, Part I., Chapter XVllI.



364 THE LAW OF JIASTER AND SEKVANT.

fur the soi'vice of any other person or persons, lliat then, and in cither of
tlie said cases, such person or jieisons so oH'endinj^ as aforesaid shall for-
feit and uudern'o the penalty or punishment liereinafter mentioned and
in that behalf piovided.

3. And he it further enacted by the authority aforesaid, that from and
after the said first day of July one thousand seven hundred and ninety-
two, if any person or persons shall knowingly and wilfully pretend or
falsely assert in writing, that any servant was discharged or left his, her,
or their service at any other time than that at which lie or she was
discharged or actually left such service, or that any such servant had not
been hired or employed in any previous service, contrary to truth, that
then, and in either of the said cases, such person or persons shall forfeit
and imdergo the penalty or punishment hereinafter mentioned and in
that behalf provided.

4. And be it further enacted by the authority aforesaid, that from an d
after the said lii'st day of July one thousand seven hundred and ninety-
two, if any person shall otter liimself or herself as a servant, asserting
or pretending that he or she hath served in any service in which such
servant shall not actually have served, or with a false, forged, or coun-
terfeit certificate of his or her character, or shall in anywise add to or
alter, efface, or erase any word, date, matter, or thing contained in or
referred to in any certificate given to him or her by his or her last
or former actual master or mistress, or by any other person or persons
duly authorised by such master or mistress to give the same, that then,
and in either of the said cases, such person or persons shall forfeit and
undergo the penalty or punishment hereinafter mentioned and in that
behalf pro%'ided.

."). And be it further enacted by the authority aforesaid, that from and
after the said first day of July one thousand seven hundred and ninety-
two, if any person or persons, having before been in service, shall, when
oil'ering to hire himself, herself, or themsehes as a servant or servants
in any service whatsoever, falsely and wilfully pretend not to have been
hired or retained in any previous service as a servant, that then and in
such case such person or persons shall forfeit and undergo the penalty
or punishment hereinafter mentioned and in that behalf provided.

6. And be it further enacted by the authority aforesaid, that from and
after the said first day of July one thousand seven hundred and ninety-
two, if any person oi' persons shall be convicted of any or either of the
ofh'nce or oflences aforesaid, by his, her, or their confession, or by the
oath of one or more credible witness or witnesses, before two or more
justices of the peace for the county, riding, division, city, liberty, town,
or ]dace, where the offence or offences shall have been committed (which
oath such justices are hereby empowered and required to administer),
every such offender or offenders shall forfeit the sum of twenty pounds,
one moiety whereof shall be paid to the person or persons on whose
iniormation the jiarty or parties offending shall have been convicted,



servants' characters. ^(jo

and the other moiety thereof shall -^d and be applied foi- the use of tlie
poor of the parish whei'ein the offence shall have been committed ; and
if the party who shall have been so ctmvicted shall not immediately ])ay
the said sum of twenty pounds so forfeited, together with the sum of
ten shillings for the costs and cliarges attending such comdction, or shall
not give notice of appeal, and enter into recognizance in the mannei-
liereinafter mentioneil and in that behalf provided, sucli justices shall
and may commit every such oii'ender to tlie house of correction or some
other prison of tlie county, riding, division, city, liberty, town, or place,
in wliich lie or she sliall liuve been convicted, there to remain and be
kept to hard labour, without bail or mainprize, for any time not ex-
ceeding three nronths, nor less than one month, or until he or she pay the
said sura so forfeited, together with such costs and charges as aforesaid.

7. [Repealed by Statute Lav) Revision Act, 1871.]

8. Provided always, and be it further enacted by the authority afore-
said, that if any servant or servants, wlio shall have been guilty of any of
the offences aforesaid, shall, before any information has been given or lodged
against him, her, or them, for such offence, discover and inform against
any person or persons concerned with him, her, or them in any offence
against this Act, so as such offender or offenders be convicted of such
offence in manner aforesaid, every such servant or servants so discovering
and informing, shall thereupon be discharged and indemnified of, from,
and against all penalties and punishments to which, at the time of such
information given, he, she, or they might be liable by this Act, for or by
reason of such his, her, or their own offence or offences.

9. [Form of conviction, see 11 tt- 12 Vict. c. 43, s. 17, and schedule.']

10. Provided always, and be it further enacted, that if any person
shall think himself or herself aggrieved by anytliing done in pursuance
of this Act, such person may appeal to the justices of the peace at the
next general or quarter sessions of the peace to be held for the county
or place wherein the cause of complaint shall have arisen, such appellant
entering into recognizance with two sufficient sureties, in the sum of
twenty pounds each, conditioned to try such appeal, and al)ide the order
of, and to pay such costs as shall be awarded by, such justices at such
general or ([uarter sessions, upf)n due proof of such notice being given
as aforesaid, and of the entering into such recognizance ; whicli said
justices shall hear and finally determine the causes and matters of such
appeal in a summaiy way, and award such costs to the parties appealing
or appealed against as they the said justices shall think proper, and the
determination of such general or quarter sessions shall be final, binding,
and conclusive to all intents and purposes ; and no conviction or order
made concerning any mattei's aforesaid, or any other proceedings to be
had, touching the conviction or convictions of any offender or offenders
against this Act, shall be quashed for want of form, or be remo\-ed by
certiorari or any other writ or process whatsoe: er into any of his
Majesty's courts of record at Westminster.



CHAPTER IV.

THE TRUCK ACT.

Enactments intended to stop frauds and abuses arising
■out of the practice of paying workmen and labourers in goods
of a poor quality, or of making unreasonable and excessive
deductions from wages, are very ancient. As long ago as 14G4
Parliament interfered (4 Ed. IV. c. 1, repealed by 1 & 2 Will.
III. c. 36) with a view to protect labourers against being
compelled to take a great part of their wages in "pins,
girdles, and other unprofitable wares." Parliament declared
that masters " shall pay to the carders, spinners, and all such
others labourers, in any part of the said trade, lawful money
for all their lawful wages, and payments of the same."

In loGo the 8 Eliz. c. 7, s. G was passed for the benefit of
the "sheermen, frizers, and cottoners" of Shrewsbury, to pro-
hibit payment in wares. The 1 Anne, c. 18 (made per-
petual by 9 Anne, c. 30 ; see also 10 Anne, c. IG, s. G) was also
passed in order to prevent " the oppression of the labourers and
workmen employed in the woollen, linen, fustian, cotton, and
iron manufacture." It declared that payments should be by
lawful coin, and not by cloth, victuals, or commodities. As
the manufactures of England extended, the evils of the truck
system spread ; and the Legislature interfered from time to
time, now in one trade and now in another, with a view to
ensure payment of wages in casli.

Acts dealing with this subject were passed in 1714 (1 Geo.
I. s. 2, c. 15), in 172r, (12 Geo. I. c. 34, ss. 3, 4, & 8), in
1740 (13 Goo. II. c. 8, .s. G), in l7r)G (29 Geo. II. c. 33), in



THE TRUCK ACT.



367



1779 (19 Geo. III. c. 49), in 1817(57 Geo. III. c. 115, and
c. 122), and 1818 (58 Geo. III. c. 51).

The former Acts on the subject were repealed by 1 & 2 Will.
IV., c. 36. In 1831 the present Truck Act was passed. It
consolidated the whole law. It applies only to the trades
mentioned in Section 19. Domestic servants and servants in
husbandry are excluded from the Act (sec. 20).



1 & 2 WM. IV. c. 37.

[loth October, 1831.]

An Act to prohibit the payment, in certain trader, of wages in goods,
or otherwise than in the current coin of the realm.

Whereas it is necessary to prohibit tlie pa^aneiit, in certain trades, of
wa<,^es in goods, or otherwise than in the current coin of the realm ; be
it therefore unacted by the King's most excellent Majesty, by and with the
advice and consent of the Lords spiritual and temijoral, and Commons,
in this present Parliament assembled, and by the authority of the
same, that in all contracts hereafter to be made for the hiring of any
artificer («) in any of the trades hereinafter enumerated, or for the per-



(«) For definitions see ss. 19 & 25.
For many years after the passing of
the Truck Act doubts ])revailed as to
the class of "artificers" to whom it
applied. The Courts decided that it
did not apply to persons who did not
contract to work personally, and who
were not paid by wages in the ordinary
way. \\\ Slermanx. Barrcff, {186i),
2 H. & f;. 034 ; 33 L. J. N. S. Ex.
153, Pollock, C.B., thus defined the
class of persons within the Act :
" Where persons are employed to do
certain work, and are to receive
wages for their labour, the contract
being merely for the labour, in my
jiidgment that is within the Truck



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 38 of 77)