John Macdonell.

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

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Act. But if the contract is not for the
labour, but for tlio result or etfcct of
the labour, as, for instance, a con-
tract for the removal of a quantity of
clay, that is not within the Act,
because there the contract is not for the
labour, btit for that which the labour
is to accomplish." See also Parke, B.,
in Jiilei/ v. Warden (1848), 2 Ex. 59 ;
18 L. J. N. S. Ex. 120 ; and Bram-



well, B., in Archer v. James (1862),
2 B. & S. 95 ; 31 L. J. Q. B. 153.
The following are the chief cases
relative to "artificers" : —

Not Within the Act.
EiUy V. Warden. (1848), 2 Ex. 59 ;
18 L. J. N. S. Ex. 20. (Plaintiff'
had engaged to make a cutting on a
projected railway at so much a cubic
yard. He hired eight or nine men
to work with him. Not an ' ' artificer,"
because he had not contracted to
work personally for wages. The Act
must be taken ' ' as applicable to those
persons only who strictly contract as
labourers, that is, to such as enter
into a contract to employ their per-
sonal services, and to receive pay-
ment for that service in wages : "
Parke, B. Sharman v. Sanders
(1853), 22 L. J. N. S. C. P. 86; 13
C. B. 166 ; 3 C. & K. 298. (Plaintiff
employed to load and mdoad, and
burn iron-stone for defendants at
a certain price per ton, paj'able at
the end of each month, the defen-



308



THE LAW OF MASTER AND SERVANT.



fonnance by any artificer of any labour in any of tlie said trades, the
waj^es of sucli artificisr shall be made ])ayable in tlie current coin of
this realm only, and not otlierwise ; and that if in any such contract the
wlinle or any part of sucli waives shall be luade ])ayable in any manner
otlier than in the current coin aforesaid, such contract shall be and is
hereby declare<l illegal, null, and void.

2. And be it further enacted, that if in any contract hereafter to be
made between any artificer in any of the trades hereinafter enumerated
and his employer, any provision shall be made directly or indirectlv



(lants findin.fj the carts and horses.
The plaintiff employed men to do
the work, but from time to time
]iersonally assisted in it ; not within
the Act.) Inr/ramv. Batiirs {1857),
7 E. & B. lis ; 26 L. J. Q. B.
82 & 319. (Plaintiff engaged to make
as many bricks as defendant required
in defendant's brick-field at so much
a thousand, the plaintiff finding all
thelabour, defendant all tlie materials.
Plaintiff, assisted by others, made
bricks, and worked personally ; held
by Campbell, C.J., and Coleridge, J.,
not within the Act, on the ground
that there was no contract to do
the work personally, Erie, J., dis-
senting.. Affirmed by Exche([uer
Chamber, which expressed approval
of Jiilei/ v. JFardcn, and Shnrmaii
V. Sanders.) Slceman v. Barrett,
(1864), 2 H. k C. 934; 33 b. .1.
Ex. 153. (Butty colliers working
in partnership under a verbal con-
tract ; paid generally by the day, but
sometimes by the ton or yard ; tliey
worked like ordinary workmen, and
were not allowed to leave tlie work
or underlet, but were allowed to em-
ploy men to work under them ; not
within the Act.) Pillar v. Lhinvl
Coal On. (1869), L. 1!. 4 C. P.
752 ; 38 L. J. C. P. 294. (Plaintiff,
a tinman, employeil by defendants to
work, either at piece work' or by day
at fixed prices, out of materials sup-
plied by the (Infcndants at varying
prices ; plaintiff within tlie Act as
ijcing required to give personal ser-
vice, and not a tradesman. ) rhih'ps
V. Mchmes (1874), 2 R. 224.
(A foreman at a slate quarry, who
wa.9 bound to assist workmen when
operations were "falling back," or
"in need of being pushed forward,"'
not an artificer.)



Within the Act.
Weaver v. I7oi/d (18.^.2), 21 L. J.
N. S. Q. B. 151. (A collier, entitled
to employ men to assist him, en-
gaged to get coal or iron-stone
from a mine, and to be paid at a
certain rate per ton. It appeared
that the collier was bound to give
]iersonal service ; within the Act.)
Bown-s V. Lovel-in (1856), 6 E & B.
584 ; 25 L. J. N. S. Q. B. 371.
(Butty colliers, who employed other
men, and who were ]iaid so much a
ton on a yard of coal, but who liad
to work personally, and were treated
as workmen, within the Act. Erie, J. ,
gave a wide meaning to the Act : "I
shoidd not assert that, where a miner
has contracted to do artificer's work at
wages to be regulated by the piece,
he is necessarily out of the protec-
tion of the Act, unless it is expressly
stipulated tliat he nnist work him-
self." Millard V. KiUy (1858), 32 L.
T. O. S. 123. (Labourer engaged in
carrying iron between certain iron
works and the boats in a canal.)
Lawrence v. Todd (1863), 14 C. B.
N. S. 554 ; 32 L. J. M. C. 238. (T.,
with six others, iigreedto complete an
iron vessel, and they were exclusively
to serve appellant. They were at
liberty to employ other workmen of
inferior .skill, who, as well as them-
selves, were to be subject to the
regulations of the appellant's yard.
Tliey were to be ]iaid at the rate of
£5 ])er ton ; held that T. and his
rcllow-workmen were artificers or
handicraftsmen within 4 Geo. IV. c.
34, s. 3.) Moorhouse. v. Lex (1864),
4 F. & F. 354. (A framework
knitter an artificer within the Truck
Act. )



THE TRUCK ACT. 300

respecting the place where, or the manner in which, or the person or
])ersons with whom, the whole or any part of the wages due or to^becouie
due to any such artificer shall be laid out or expended, such contract shall
be and is hereby declared illegal, null, and void.

3. And be it further enacted, that the entire amount of the wages
earned by or payable to any artificer in any of the trades hereinafter
enumerated, in respect of any labour by him done in any such trade,
shall be actiially paid to such artificer in the current coin of this realm,
and not otherwise ; and every payment made to any such artificer by his
employer, of or in respect of any such wages, l)y the delivering to him
of goods or otherwise than in the current coin aforesaid, except as here-
inafter mentioned, shall be and is hereby declared illegal, null, and void.

4. And be it further enacted, that every artificer in any of the trades
hereinafter enumerated sliall be entitled to recover from his employer in
any such trade, in the manner by law provided for the recovery of ser-
vants' wages, or by any other lawful ways and means, the whole or so
much of the wages earned by such artificer in such trade as shall not
have been actually paid to him by such his em])h)yer in the current coin
of this realm.

5. And be it further enacted, that in any action, suit, or other pro-
ceeding to be hereafter brought or commenced by any such ai-tificer a.s
aforesaid, against his employer, for the recovery of any sum of money
due to any such artificer as the wages of his labour in any of the trades
hereinafter enumerated, the defendant shall not be allowed to make any
set-off, nor to claim any reduction of the plaintiff's demand, by reason or
in respect of any gcjods, wares, or merchandise had or received by the
plaintiff as or on account r>f his wages or in reward for his labour, or by
reason or in respect of any goods, wares, or merchandise sold, delivered,
or supplied to such artificer at any shop or warehouse kept by or belong-
ing to such employer, or in the profits of which such em])loyer sliall have
any share or interest (b).

(3. And be it further enacted, that no employer of any artificer in any
of the trades hereinafter enumerated shall have or be entitled to main-
tain any suit or action in any Court of law or equity against any such
artificer, for or in respect of any goods, wares, or merchandise sold,
delivered, or supplied to any such artificer by any such employer, whilst

{b) Lair v. Praft (1843), 1 L. T. 0. you mean to get?" and gave them

S. 623. (One of the defendants, the diflerence in money. In an

partner in a manufacturing firm, action for wages, to whicli payment

kept a shop, at which his men waspleaded,Cresswell, J., directed the

were accustomed to get goods on jury that tliis mode of payment was

credit. On the pay-day, once a week, vaUd. f^^ut ipiery.) Jt would appear

the men who dealt at 'the shop (the that a payment in cash, but on con-

plamtitf being one of them) got from dition that the money lie spent in the

the shop tickets showing their debt, employer's shop, is within the Act.

and carried them to the pay clerk, who Olding v. Smith (\ii)2), 16 Jar. 497
asked them, " llow much of that do



370 THE LAW OF MASTER AKD SERVANT.

in his employment, ns or on account of liis wai^'cs or reward for his labmir,
or for or in respect of any goods, wares, or merchandise sold, delivered,
or supplied to such artificer at any shop or warehouse kept hy or belong-
ing to such employer, or in the profits of which such employer shall have
any share or interest.

7. And be it further enacted, that if any such artificer as aforesaid, or
his wife or widow, or if any child of any such artificer, not being of the
full age of twenty-one years, shall become chargeable to any parish or
])lace, and if within the space of three calendar months next before the
time when any such charge shall be incurred such artificer shall have
earned or have become entitled to receive any wages for any labour by
him done in any of the said trades, which wages shall not have been paid
to such artificer in the current coin of this realm, it shall be lawful for
the overseers or overseer of the poor in such parish or place to recover
from the employer of such artificer in whose service such labour was
done, the full amount of wages so unpaid, and to proceed for the recovery
thereof by all such ways and means as such artificer himself might have
]»roceeded for that purpose ; and the amount of the wages which may be
so recovered shall l)e a^jplied in reimbursing such parish or place all
costs and charges incurred in respect of the person or persons to become
chargeable, and the surplus shall be applied and paid over to such person
or persons.

8. Provided always, and be it further enacted, that nothing herein
contained shall be construed to prevent or to render invalid any contract
for the payment, or any actual payment, to any such artificer as aforesaid,
of the whole or any ])art of liis wages, either in the notes of the governor
and company of the Bank of England, or in tlic notes of any ])erson or
persons carrying on the business of a banker, and duly licensed to issue
such notes in pursuance of the laws relating to his Majesty's revenue of
stamps, or in drafts or or<lers for the payment of money to the bearer on
demand, drawn upon any person or persons carrying on the business of
a banker, being duly licensed as aforesaid, within fifteen miles of the
place where such drafts or orders shall be so jiaid, if such artificer shall
be freely consenting to receive such drafts or orders as aforesaid, but all
payments so made with such consent as aforesaid, in any such notes,
drafts, or orders as aforesaid, shall for the purposes of this Act be as valid
and effectual as if such jiaynu'nts had been made in the ctirrent coin of
the realm.

9. And be it further cnacte(l, that any employer of any artificer in any
of the trades hereinafter enumerated, who shall, by himself or by the
agency of any other person or persons, directly or indirectly enter into
any contract or make any payment hereby declared illegal (c), shall for

(c) Athcr smith y. Drury (1858), 1 her a "shop note," to take to a clerk.

E. & E. 46 ; 28 L. J. M. 0. 5. The clerk refused money but gave

(An employer, the defendant, refused lier lui order for a .shop, Avhic.h he

money to a workman's wife, but gava mentioned. The justices found that



THK TRUCK ACT. 371

the first offence forfeit a sum not exceeding ten pounds nor leas than five
pounds, and for the second offence any sum not exceeding twenty pounds
nor less tliau ten jiouuds, and in case of a third offence, any such em])loyer
sliall be and be deeni«d guilty of a misdemeanor, and, being thereof
convicted, shall be punished by line only, at the discretion of the Court, so
that the fines shall not in any case exceed the sum of one hundred pounds.
10. And be, it further enacted, that all offences committed against
this Act, and not hereinbefore declared a nusdemeanor, shall be enquired
of and determined, and that all fines and penalties for such offences shall
be sued for and recovered by any person or persons who shall sue for
the same, before any two justices oi the peace having jurisdiction within
the county, riding, city, or place in which the offence shall have been
committed, and that the amount of the fines, penalties, and other punish-
ments to be inflicted upon any such offenders sliall, within the limits
hereinbefore prescribed, be in the discretion of such justices, or in cases
of nusdemeanor, of the Court before which the offence may be tried ;
and in case of a second offence against this Act, it shall be sufficient
evidence of the previous conviction and offence, if a certificate signed
by the clerk of the peace or other officer having the custody of the
record of such previous conviction, shall be produced before the said
justices enquiring of such second offence, in which certificate shall be
stated in a compendious form the general nature of the offence for which
such previous convicti(jn was had, and the date of such i)revious con-
victiim ; and so in like manner, upon the trial of any indictment or
information for any such misdemeanor as aforesaid, it shall be sufficient
evidence of such second conviction for a like oftence, if a certificate
thereof, signed by the clerk of the peace or other officer having the
custody of the record of such second conviction, in such form as afore-
said, be produced to the Court and jury : provided always, that no
person shall be punished as for a second offence under this Act, unless

the defendant knew and intended when he likod, and the takinj^ of the

when he gave the first note, tliat she goods was wholly optional. Held (by

was to get goods and not money. Williams, Willes, Keating, JJ.) that

Held (by Campbell, C. J., Wight- an offence had been committed, and

man, firle, Hill, J J.) that giving of that subsequent payment did not

the note was an offence against the purge the offence. Smith v. JVaJfon

Act, and was complete at the giving (1877), L. \l. 3 C. P. D. 109 ; 47 L.

of the first note. Wilson v. Cookson J. M. C. 45 ; 37 L. T. 437. (An arti-

(1863), 32 L. J. M. C. 177. It is ficer within the Truck Act in the era-

not necessary that the payment otiier ployment of the respondent wove a

than in coin should be in pursuance of piece of cotton cloth which was de-

a contract ; and if a workman of his fective ; the respondent delivered to

o^vn accord receives goods, and the him the piece of damaged cloth in-

master deducts the price, it is an stead of a part of the wages which

offence under sects. 3 and 9. Fisher v. were due to the appellant ; an offence

Jones (1863), 32 L. J. M. C. 177. within the Act. "The respondent

Appellant worked for the respondent has deducted the whole value (of the

and dealt at Ids shop. The amounts cloth), and throughout the transac-

of the purchases were deducted from tion the damaged piece is treated as

appellant's pay, but he had Ids wages part of the cost." Grove, J.)

B B 2



37'2 THE LAW OF PIASTER AND SERVANT.

ten days at the least shall have intervened between the conviction of
such person for the first and the conviction by such jjerson of the second
ofl'ence, but each separate offence committed liy any such person before
the expiration of the said term of ten days shall be punisluible by a
separate penalty, as tliouj^h the same were a first ofienee ; and that no
person sliall be punished as for a third offence under this Act, unless
ten days at the least shall have intervened between the ciaiviction of
such person for the second and the conviction by such person of the
third offence ; but each separate offence committed by any sucli person
before the erxpiration of the said term of ten days shall be punishable by
a separate penalty, as though the same wei'C a second offence ; and that
the fourth or any subsequent ofl'ence which may be committed by any
such person against this Act sliall be enquiied of, tried, and jmnislied in
the maimer hereinbefore juovided in respect of any third ofl'ence ; and
that if the person or persons preferring any such information rdiall not
be able or shall not see fit to produce evidence of any such previous
conviction or convictions as aforesaid, any such oft'ender as aforesaid
shall be punished for each separate offence by him committed against
the provisions of this Act by an equal number of distinct and separate
penalties, as though each of such offences were a first or second
offence, as the case may be ; and that no person shall he proceeded
against or punished as for a second or as for a third offence at the
distance of more tliaii two years from the commission of the next
preceding ofl'ence.

11. And be it further enacted, that it sliall be lawful for anyone
justice of the peace, in all cases where any information or complaint
shall be made as aforesaid, and he is hereby authorised and required, at
the request in writing of any of tlie parties to the said complaint, and
on the oath of the informer or complainant, or of the person informed
or complained against, that he believes that the attendance of any person
or persons as a witness or witnesses will be material to the Iiearing of
such iiif(H'mation, to issue his summons to any such person or pers(ms,
witness or witnesses, to appear and give evidence on oath before himself
and such other justice or justices as shall hear and determine such
information or complaint, tlie time and place of hearing and determining
the same being specified in the said summons ; and if any person or
persons so summoned shall not appear liefore the said last-mentioned
justices at the time or place so .sjiecified in the said summons, and shall
not offer any reasonable excuse for the default, to tlie satisfaction of the
said last-mentioned justices, or appearing according to the directions of
the said summons .shall not submit to be examined as a witness or
Avitnesses, then and in every sudi case it shall be lawful for such last-
mentioned justices, and they are liereby authorised (proof on oath, in
the case of any person not appearing according to such summons,
having been first made before such last-mentioned justices of the due
service of such summons on every such jierson, by delivering the same



THE 'IIIUCK ACT. 373

to him or to lier, or by li-aving the saiiic at the usual place of al)i"le of
such 2)C'rson, twenty-four hours at the least befoi'C the time appointed
for such person to appear before such last-mentioned justices), Ijy
warrant under the hands and seals of such last-mentioned justices to
commit such person or persons so making default in appearing, or
appearing and refusing to give evidence, to some prison within the
jurisdiction of the said justices, there to remain without bail or main-
prize for any time not exceeding fourteen days, or until such person or
persons shall submit to be examined and give evidence.

12. And be it further enacted, that all justices of the peace shall and
are hereby empowered, on the conviction of any person or i)ersons for
any offence against this Act, in default of payment of any penalty or
forfeiture, together with the reasonable costs and charges attending such
conviction, to cause the same to be levied by distress and sale of the
goods and chattels of the offender or offenders, by wammt or warrants
under the hands and seals of such justices, together with the reasonable
costs of such distress and sale, and in case it shall appear to the satis-
faction of such justices, either by the confession of the offender or
offenders or by the oath of one or more credil)le witness or witnesses,
that he, she, or they hath not or have not goods and chattels within the
jurisdiction of such justices sufficient whereon to levy all such penalties
and forfeitiu'es, costs and charges, such justices may, without issuing any
warrant of distress, commit the offender or offenders to the common
gaol for three calendar months (unless the same be sooner paid), in such
manner as if a warrant of distress had been issued, and a return of
nulla bona made thereon.

13. And be it further enacted, that no person shall be liable to be
convicted of any offence against this Act committed by his or her co-
partner in trade, and without his or her knowledge, privity, or consent ;
l)ut it shall be lawful, when any penalty, or any sum f(3r wages, or any
other sum, is ordered to be paid, under the authority of tlus Act, and
the person or persons ordered to pay the same shall neglect or refuse to
do so, to levy the same by distress and sale of any goods belonging to
any copartnership concern or business in the carrying on of which such
charges may have become due or such offence may have been com-
mitted ; and in all proceedings under this Act to recover any sum due
for wages it shall be lawful in all cases of co-partnership for the justices,
at the hearing of any complaint for the non-payment thereof, to make an
order upon any one or more co-partners for the payuicnt of the sum
appearing to be due ; and in such case the service of a copy of any sum-
mons or other process, or of any order, upon one or more of such co-
partners, shall be deemed to be a sufficient service upon all.

14. And it is declared and enacted, that iu all cases it shall be deemed
and taken to be sufficient service of any smiunons to be issued against
any offender or offenders by any justice or justices of the peace, under
the authority of this Act, if a duplicate or true copy of the same be left



374 THE LAW OF MASTER AND SERVANT.

at or ujxin the place iised or occupied by such oftender or oflfendei-s for
currying on his, her, or their trade or business, or at the phice of resi-
dence of any such offender or otfenders, beijit,' at or upon any such jjhice
as aforesaid, the same beinj,' directed to such oti'eiider or offenders by his,
her, or their right or assumed name or names.

15. And be it further enacted, that the justices before -w^hom any
person shall be convicted of any offence against this Act, or by whom
any person shall be committed to the common gaol, in defaidt of a suffi-
cient distress, or for not appearing as a witness, or not submitting to be
examined, shall cause all such convictions, and the summonses for the
attendance of witnesses, and the warrants or orders for such commit-
ments, and the warrant or order for any such distre.ss, to be drawn up in
the form or to the effect set forth in the schedule to this Act annexed,
with such additions or variations as may be necessary for adapting the
same to the particular circumstances of the case.

16. And be it further enacted, that the justices before whom any con-
viction shall be had under this Act shall cause the same to be returned
to the next general or qiiarter sessions of the peace holdenfor the county
or i)lace wherein the offence shall have been committed, and the same
shall then and there be delivered to the clerk of the peace, or other
person acting as such, to be by him filed among the records of the said
Court ; and such clerk of the peace, or other person acting as such, is
hereby ix'ipured, on the tender and payment to him of the sum of one
shilling, to grant to any persim or persons, on demand, a copy of any
such conviction, with a certificate thereupon indorsed or thereunto
annexed, that the same is a ti-ue and acciu'ate copy of the original con-
viction returned to such general or quarter sessions as aforesaid.

17. And be it further enacted, that no conviction, order, or adjudica-
tion ma<le by any justice of the peace under the provisions of this Act
sliall be ([uashed for want of form, nor be removed by certiorari or othei'-
wise into any of his Majesty's superior Courts of record ; and no warrant
of distress, or of commitment in default of sutiicient distress, shall be
held void by reason of any defect therein, provided it be therein alleged
that the party has been convicted, and there be a good and valid con-
viction to sustain the sanre.

18. And be it further enacted, that out of any penalty or forfeiture
incurred by any offence committed against this Act, it shall be lawful
for the Court or justices imposing the same to award any sum to the
informer, not exceeding in any case the sum of twenty pounds ; and the
rest of any such ])ecuniary penalty or forfi'iture shall go to the treasurer



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 39 of 77)