John Macdonell.

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

. (page 40 of 77)
Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 40 of 77)
Font size
QR-code for this ebook


of the county in which the oU'ence shall be committed, in aid of the rates
of such county : provided always, that every proceeding whatsoever for
any offence against this Act shall be commenced within three calendar
months after such offence shall have been committed.

19. And be it further enacted, that nothing herein contained shall
extend to any artificer, workman, or labtjurer, or other person engaged



THE TUUCK ACT. 375

ov employed in any manufacture, trade, or occupat-ion, excepting only
artificers, workmen, labourers, and (jtlier persons employed in the
several manufactures, trades, and occupations following ; (that is to
Kuy), in or about the making, casting, converting, or manufacturing of
iron or steel, or any parts, branches, or processes thereof ; or in or about
the working or getting of any mines of coal, ironstone, limestone, salt
rock ; or in or about the wen-king or getting of stone, slate or clay ; or
in the making or preparing of suit, bricks, tiles, or quarries ; or in or
about the making or manufacturing of any kinds of nails, chains, rivets,
anvils, vices, spades, shovels, screws, keys, locks, bolts, hinges, or any
other articles or liardwares made of iron or steel, or of ir<jn and steel
combined, or of any plated articles of cutlery, or of any goods or wares
made of brass, tin, lead, pewter, or other metal, or of any japanned
goods or wares whatsoever ; or in or about the making, spinning,
throwing, twisting, doubling, winding, weaving, combing, knitting,
bleaching, dyeing, printing, or (jtherwise preparing of any kinds of
woollen, worsted, yarn, stuff, jersey, linen, fustian, cloth, serge, cotton,
leather, fur, hemp, tlax, mohair, or silk manufactures whatsoever, or in
or about any manufactures whatsoever made of the said last-mentioned
materials, whether the same be (;r be not mixed one with another ; or in
or about the making or otherwise preparing, ornamenting, or finishing
of any glass, porcelain, china, or earthenware whatsoever, or any parts,
branches, or processes thereof, or any materials used in any of such last-
mentioned trades or enij)loyments ; or in oi' about the making or pre-
paring of bone, thread, silk or cotton lace, or of lace made of any mixed
materials.

20. And be it furcher enacted, tliat nothing herein contained sliall
extend to any domestic servant oi' servant in husbandry.

21. And be it further enacted, that no justice of the peace, being a
person also engaged in any of the trades or occupations enumerated in
this Act, or the father, son, or brother of any such person, shall act as a
justice of the peace imder this Act.

22. And be it further enacted, that in all cities, boroughs, or corporate
towns, where the magistrates for the time being are disqualified by the
foregoing clause from admiiustering this Act, then and in every such
case, and so often as the same shall happen, it shall be lawful for the
magistrates of the county in which the offence nuiy be committed (and
not disqualitied as aforesaid) to administer, and they are hereby
authorised and empowered to hear, examine, and determine, any olfences
committed against this Act, in any such cities, boroughs, or corporate
towns ; and it shall be lawful for the complainant to remove the cases
of information or complaint from the said cities, boroughs, or corporate
towns to any other Court of session or petty session not exceeding twelve
miles from the place where the offence shall have been committed ; any
law, charter, usage, or custom to the contrary notwithstanding.

23. And be it further enacted and declared, that nothing herein con-



376



THE LAW OF MASTER AND SERVANT.



tjiined shall extend or be construed to extend to i)revent any employer
of any artificer, or agent of any such employer, Irom supplying or con-
tracting to supply to any such artificer any medicine or medical atten-
dance, or any fuel, or any materials, tools, or imijlements to he by such
artificer employed in his trade or occupation, if such artificers be em-
ployed in mining, or any hay, corn, or other provender to be consiuned
by any liorse or otlier beast of burden employed by any such artific'er in
his trade and occupation ; nor from demising to any artificer, -workman,
or labourer employed in any of the trades or occupations enumerated in
this Act the whole or any part of any tenement at any rent (d) to be
thereon reserved ; nor from supplying or contracting to supply to any
such artificer any victuals dressed or prejjared under the roof of any such
employer, and there consumed by such artificer ; nor from making or
contracting to make any stoppage or deduction from the wages (e) of any



(d) Chawncr v. Cunuitinf/s (1846),
8 Q. B. 311 ; 15 L. J. (,>. 15. 161.
(Plaintiff and defendant in the glove
trade ; plaintiff a framework knitter,
and defendant a middleman, who pro-
vided frames at an agreed gross i)rice
]ier dozen frames. Defendant in set-
tling with the plaintiff dedneted out of
the gi'ossprice per dozen certain charges
which were aecording to the custom of
the trade : 1, a frame lent of If. 6(1.
a week per frame used by plaintiffs
in his work ; 2, Is. 6(/. a week for the
use of defendant's premises to work
in, standing room, defendant's super-
intendence of work, sorting the goods
when made, and redelivering them to
the master manufacturer ; 3, 7d. a
week for a boy for winding the yarn,
and for wear and tear of machinery ;
4, 1(/. ]ier shilling on the net earnings
above 14i\ jkt week as eompensation
to defendant for sums paid by him to
the master manufacturer. No written
contract. Held that plaintifl' was an
" artificer " and defendant an " eni-
]doyer " within the Act ; that the
above deductions, being according to
tlie custojn of the trade and not colour-
able, were not payments of wages
within .see. 3, but customary modes of
caleulating the amount of the wages,
and not ](rohibited by sees. 1 — 3 ; that
frame rents are not " rents " within
sec. 23 ; that no contract in wiiting
wasreipiired to make the.se deductions
legal. These deductions came before
the Exchequer Chamber in Arcltrr v.
Jtnncs (1862), 2 15. & S. 61 ; 31 L. -1.



Q. B. 1.^3; 1 L. T. K S. 26.
(The decision in Cltavacr v. (Jvm-
viiiiijs was revi*ewed in the Exchetpier
Chamber. Three judges (Williams,
AVdles, and Keating, JJ.) held that
the deductions were illegal, and de-
livered a joint judgment to the efleet
that the benefits represented by the
deductions — viz., the rent of frame
and machine, fire, light, &c. — were
given for work done, and that these
deductions were contrivances by
means of which the master made the
interest of i>art of his caj)ital a first
charge upon the laboiu' of his work-
men. Byles, J., Bramwell, B., and
Pollock, C.B., delivered separate judg-
ments confirming the decision below,
and in confi)rmity with Chaimrr v.
Cwnuninijs. To meet this the 37 &■
38 Viet. c. 48 (Hosiery Manufacture
Wages Act) was ])assed).

(c) Cutts V. IVard (1867), L. \\. 2
Q. B. 357 ; 36 L. .1. Q. B. 161.
(Plaintilf signed rules of the colliery,
which authorisctl the deduction from
wages of rent of house, and chai-ges
for tools, materials, and medical
attendance generally, without specifi-
cation of jiarticulars. Held that de-
ductions tor rent and club for ]iro-
viding medicines were legal, that parol
evidence of them ndght be given, and
that it was not necessary to siiecify
the amounts to be deducted under
each head on the written contract ;
but that tlic deduction ibr wood to be
used in projijiing the roof was illegal.
" What the Legislature contemplated



THE TRUCK ACT. 377

such artificer, for or in rcspt'ct of any such rent ; or for or in respect of
any such nietUcine or medical attendance ; or for or in respect of such
fuel, materials, tools, implements, hay, corn, or provender, or of any
such victuals dressed and prepared under the roof of any such employer ;
or for or in respect of any money advanced to such artificer fur any such
])urpose as aforesaid : i)rovided always, that such stoppage or deduction
shall not exceed the real and true value of such fuel, materials, tools,
implements, hay, corn, and provender, and shall not he in any case made
from the wages of such artificer, unless the agreement or contract for
such stoppage or deduction sliall he in writing, and signed liy such
artificer.

24. And be it further enacted and declared, that nothing herein con-
tained shall extend or be construed to extend to prevent any such
employer from advancing to any such artificer any money to be by him
contributed to any friendly society or bank for savings duly established
according to law, nor from advancing to any such artificer any money
for his relief in sicl<ness, or for the education of any child or children of
such artificer, nor from deducting or contracting to deduct any sum or
sums of money from the wages of such artificer for the education of
any such child or children of such artificer, and unless the agreement or
contract for such deduction shall be in wiiting, and signed by such
artificer.

25. Antl be it further enacted and declared, that in the meaning and
for the purposes of this Act all workmen, labourers, and other persons
in any manner engaged in the performance of any work, employment,
or operation, of what nature soever, in or about the several trades and
occupations aforesaid, shall be and be deemed " artificers ;" and that
within the meaning and for the purposes aforesaid all masters, bailiffs,
foremen, managers, clerks, and other persons engaged in the hiring,
employment, or superintendence of the labour of any such artificers,
shall be and be deemed to be "employers;" and that within the
meaning and for the purposes of this Act any money or other thing
had or contracted to be paid, delivered, or given as a recompense, reward,
or remuneration for any labour done or to be done, whether within a
certain time or to a certain amount, or for a time or an amount uncer-
tain, shall be deemed and taken to be the " wages" of such laljour ; and

was a sale out and out, and not a con- Held that tlie giving of the cliequcs

tract for hiring materials." Pillar was a mere subterfuge to enable the

V. Llynvi Coal Co. (1869), L. R. 4 defendants to pay the plaiutilf part of

C. P. 752 ; 28 L. J. C. P. 294. (Plaintiff his wages in goods ; that occasional

was paid' partly in small cheques, deductions in respect of coals and

which he could not cash except at de- materials formed no jiart of system

fendantb' shoi), and then only by tak- of payment, and could not be re-

ing 16s. in the pound in goods. The covered ; and that the "artificer" was

defendants deducted, without any entitled to recover the whole of the

written contract, sums for coals, deductions for doctor's funds and

medical assistance and schooling. schooling.)



378 THE LAW OF MASTER AND SERVANT.

that ■within the mcaniii;^ and for the purposes aforesaid any agreement,
understanding, device, contrivance, collusion, or arrangement what-
soever on the subject of wages, whether written or oral, whether direct
or indirect, to which the employer and artificer are parties or are
assenting, or by which they are mutually bound to each other, or
whereby either of them sliall have endeavoured to impose an obligation
on the other of them, A\a\\ be and be deemed a " contract."

26. And be it furtlier enacted, that this Act shall not commence or
take effect till the expiration of three calendar months next after the
day of passing the same.

27. And be it further enacted, that the provisions of this Act shall
extend over the whole of that part of the United Kingdom of Great
Britain and Ireland called Great Britain.



SCHEDULE referred to in the foregoing Act.

Furm of Conviction.

) BE it remembered that on this day of

to wit. \ in the year of our Lord at

in the county of A. B. is duly convicted before us,

C. D. and J. G., two of his Majesty's justices of the peace for the

of for that the said A. B. [specify the offence, and

the time and place u'hen and u-here committed], whereby the said A. B.
has forfeited the sum of this being adjudged to be the first

[or second] offence [a.s the cane iiiay be] against the i:)rovisions of an Act
to prohibit the payment of wages in goods, besides tlie cost of this
conviction, which we assess at the sum of [here state to whom

and in what proiwrtions the penalty and costs are to be paid] pursuant to
the statute in that case provided.
Given imder our hands and seals,

Siuninoiis to Witness.

I "WHEREAS infoimation upon oath liath been made before
to wit. ) iiie^ A, ]j_ Esfjuire, one of his Majesty's justices of the peace
for the county aforesaid, tluit C. D. of lias been guilty of an

offence against the laws pruliibiting the i)ayment of wages in goods, and
tliat you are a material witness to be examined on the hearing and
determination of such information : These are therefore to require you
to appear personally before me, and such other justice or justices as
shall hear and determine such information, at in the county

aforesaid, on the day of at t lie hour of of

the same day, there to be examined touching the matters alleged in sucli
information. As witness my hand,



THE TUUCK ACT. 379



Warrant of Commitment of a JFitness.

) To tlie constable or other proper officer and to the keeper or
to wit. ] ^raoler of

Whereas C. D. hath been duly sumiiionfd to appear and give evidence
,before us, A. O. and G. F., two of his Majesty's justices of the peace for
the county [or riding, city, division, or place] of on this

day of being the time and place appointed for

hearing and detenuiniug the complaint made on the oath of
before us, against A. B., of having [statiwj the offence as laid in the infor-
ination] contrary to the laws now in force for prohibiting the payment
of wages in goods : And whereas the said C. D. hath not appeared
before us at the time and place aforesaid specified for that purpose, or
ottered any reasonable excuse for his default [or ] : And

whereas the said C. D. having appeared before us at the time and place
aforesaid specified for that purpose, hath not submitted to be examined
as a witness and give his evidence before us touching the matter of the
said complaint, but hath refused so to do [or ] ; Therefore

we the said justices do hereby, in pursuance of the statute made, dc.
[setting forth the title of tliis Act] commit the said C. D. to the [describing
the 23mo»] there to remain, without bail or mauiprize, for his contempt
aforesaid, for the space of three calendar months, or until he shall
submit himself to be examined and give liis evidence touching the
matter of the said complaint, or shall otherwise be discharged by due
course of law. And you [the constable or ])eace officer to whom the warrant
is directed^ are hereby authorized and required to take into j^our custody
the body of the said C. D., and him safely to convey to the said prison,
and him there to deliver to the gaoler or keeper thereof, who is hereby
authorized and required to receive into his custody the body of the said
C. D., and him safely to retain and keep, pursuant to this commitment.
Given under our hands and seals, this day of in the year

of our Lord

Warrant to iJistrainfor Forfeiture.

) To the constable [headborough] or [tithiugraan of
to wit. )

"Whereas A. B. of is this day convicted before us, C. D.

and J. G., two of his Majesty's justices of the peace in and for the said
county, upon oath of H. K., a credible witness, for that the said A. B.
did [here set^ forth the offence], contrary to the statute in that case made
and provided, by reason whereof the said A. B. hath forfeited the sum of
to be distributed as herein is mentioned, besides the sum of
for costs, both of which he hath refused to pay ; These are
therefore, in his Majesty's name, to command you to levy the said sum
of and also the sum of for costs, by distress of



380 THE LAW OF MASTER AND SERVANT.

the floods and chattels of liiin the said A. B. ; and if within the space of
days next after such distress by you taken, the said sums,
together ^vith the reasonabk- charjj;es of takin- and keeping tlie same,
shall not he paid, that then you do sell the said goods and chattels so by
you distrained, and out of the nu)ney arising by such sale that yuu do
retain the said costs, and also the said forfeiture or sum of and

thereout pay to L. M., who hatli informed and prosecuted in this casej
the sum of being his adjudged portion of such forfeiture, the

residue whereof is to go to the treasurer of the said county of ,

in aid of the rates thereof ; and that you do return the overplus, on
demand, to him the said A. B. (the reasonable charges of takhig, keeping,
and selling the said distress being first deducted) ; and if sutticient
distress cannot be found of the goods and chattels of the said A. B.
Avhereon to levy the said sum of , that then you certify the

same to us, together with this warrant.
Given under our hands and seals.



Commitment fur Want of Distress.

To the [constable] of in the said county, and

to wit. ^ to the keeper of the common gaol [or the house of

correction] at in the said county.

Whereas A. B. of in the said county was on the

day of convicted before us, C. D. and J. G., two of his

Majesty's justices of the peace in and for the said county, upon the oath
of H. K., a credible witness, for that he the said A. B. [here set forth the
ofence], contrary to the statute made in the year of the reign

of his Majesty Kin.n AVilliam the Fourth, by reason whereof the said
A. B. hath forfeited the sum of besides the sum of

for costs : and whereas on the day of in the year

aforesaid we did issue our warrant to the [constable] of to levy

the said sum of and costs, by distress and sale of the goods

and chattels of him the said A. B., and to distribute the same according
to the directions of the said statute : And whereas it duly appears to us,
upcjn the oath of the said [constable], that the said [constable] hath used
his best endeavours to levy the said sum on the goods and chattels of
the said A. }i. as aforesaid, but that no sutlicient distress can be had
whereon to levy the same [or by confession of the said A. B., or l)y the
oath of a credible witness, that the said A. B. hath not goods and chattels
within our jurisdiction wluTcon to levy the said forfeiture and costs];
These are therefore to command you the said [constable] of
aforesaid to apprehend the said A. B., and him safely to convey to the
common gaol [or house of correction] at in the said county,

and there t(j deliver him 1o the keeper thereof, together with this
precept, and we do also ( .imiiKiiid you the said keei)er to receive and



THE TRUCK ACT. 381

keep in your custody the said A. B. for tlie space of three iiiionths, unless
the said suiu and costs shall be sooner paid ; and for so doinj^ this shall
he your sufficient warrant. Given under our hands and seals,



8 & !) VICT. C. 128 (1845).

An Act to make farther regulations respedincj the tickets of work to he
delivered to silk weavers in certain cases.

Section 1 cites 5 George IV., c. 96, and enacts that, " When any
manufacturer of silk goods or of goods made of silk mixed with other
materials, or the agent of any such manufacturer, gives out to a weaver
of such goods a piece of warp to be woven, such manufacturer or agent
shall at the same time deliver to such weaver (unless both parties shall
by writing under their respective hands agree to dispense therewith)
a printed ftr written ticket, signed by such manufacturer or agent, con-
taining the following particulars of the agreement between such manu-
facturer or agent and such weaver ; (that is to say,) the count or
richness of the warp or cane : The number of shoots or picks re(|uired
in each inch ; The number of threads of weft to be used in each shoot ;
The name of the manufacturer, or the style of the firm under which
he carries on business : The weaver's name, with the date of the
engagement ; And the price in sterling money agreed on for executing
each yard imperial standard measure of thirty-six inches of such work
in a workmanlike manner : And such manufacturer or agent delivering
such ticket shall make or cause to be made, and shall preserve imtil
the work contracted to be done shall have been completed or paid for,
a duplicate of such note or ticket.

2. That in the event. of any dispute between the manufacturer or his
agent and the workmen, such ticket and the said duplicate thereof shall
be required to be produced, and shall, together or either of them, be
evidence of all things mentioned therein, or respecting the same.

3. Provided always, that where the subject of dispute relates to
the alleged improper or imperfect execution of any work delivered
to any manufacturer or his agent, such piece of work shall be produced,
in order to adjudication, or if not produced shall be deemed and taken to
have been suthciently and properly executed.

4. That if any of the parties to the said complaint shall make oath
before any justice, ha\-ing cognizance of such complaint^ that he or she
believes that the attendance of any person as a witness will be material
to the hearing of such complaint, such justice may summon such person,
having been paid or tendered a reasonable sum for his expenses, to ap-
pear and give evidence on oath before him at the time and place set
forth in the said summons ; and if any person so summoned shall not



382 THE LAW OF JIASTEU AND SERVANT.

appear at the time and itlace set fovtli in tlie said snmnions, and shall
not make excuse for the default to the satisfaction of such justice, and if
the due service of the summons be proved, or if sucli person appearin;^
aceordini,^ to the summons shall not submit to be examined as a witness,
then sucli justice may adjudge such person so making default in appear-
ing or refusing to give evidence to pay such penalty, not exceeding five
pounds, as such justice shall think tit, and the party so adjudged to pay
such penalty shall pay the same accordingly.

5. Tliat every summons reipiired by this Act shall be served by
delivering the same to the person sununoned, or by leaving the same at
his or her usual place of abode, twenty-four hours at least before the
time appointed by the summons for such person to appear.

6. That if any such penalty or costs so adjudged by any justice to be
paid is not paid immediately upon adjudication, such justice may issue
his warrant to distrain and sell the goods and chattels of the person so
adjudged to pay the same for the amount thereof, ^dth costs ; and the
proceeds of such distress, after paying the penalty and costs, and the
costs of such distress and sale, shall be paid over to the person convicted ;
and the said penalty shall be paid over to the sheriff or other proper
officer of the county, city, borough, or place in which such conviction
shall take i)lace, for her majesty's use, and shall be returned to the court
of quarter sessions, under the provisions of an Act passed in the third
year of the reign of King George the Fourth, intituled " An Act for the
more speedy Return and Levying of Fines, Penalties, and Forfeitures,
and Recognizances estreated."

7. (Recovery of wages and sums due for work — Repealed by 38 & 39
Vict. c. 86, s. 17, post.)

8. That no order or conviction or proceeding touching the same re-
spectively, shall be quashed for want of form, or be removed by cer-
tiorari or otherwise into any of Her Majesty's superior courts of
record ; and that when any distress shall have been made for levying
any money by virtue of this Act the distress itself shall not be deemed
unlawful, nor the party making the same a trespasser, on account of any
defect or want of form in the summons, warrant, conviction, warrant of
distress, or other proceedings in relation thereto, nor shall the party
distraining be deemed a tresi)asser from the beginning, on account of
any irr(;gularity afterwards committed by him, but the person aggrieved
by such irregularity may recover I'ull satisfaction for sitecial damage (if
any) by action on the case.



THE HOSIERY MANUFACTURP] (WAGES) ACT, 1874. 383



37 & 38 VICT. c. 48 (1871).

An Act to pro villi for tJie jmijmoit of ivages without utoppa/jes in the Jt,osier>j

manufacture.

Whereas a custom has prevailed among the employers of artificers in
the hosiery manufacture of lettinif out fi'ames and machinery to tlie
artificers employed by them, and it is desirable to i)rohibit sucli letliiiLj
of frames and mac;liinery, and the stoppa^^e of waj^'es for frame rents and



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 40 of 77)