John Macdonell.

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

. (page 55 of 77)
Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 55 of 77)
Font size
QR-code for this ebook


by him to have any other person Avhom he charges as the actual offender
brought Tjefore the court at the time ai)})ointe(l for hearing the cliarge ;
and if, after the commission of the offence has been proved, the occui>ier
of the factory or Avorksho]) ])roves to the satisfaction of the court that he
had used due diligence to enforce the execution of the Act, and tliat the
said other ])erson had committed the ottence in ([uestion Avithout his
knoAA'ledge, consent, w conniA-ance, the said other person shall be
summarily convicted of such oUeuci', ami the occupier shall be exempt
from any fine.

When it is made to appeal' to the satisfaction nf an inspector at the
time of discovei-ing the otlence, that the occupier of the factory or
Avorkshop had used all due diligciu'e to enforce the execution of this
Act, and also by Avhat i)erson such offence had been committed, and
also that it had been committed Avithout the knowledge, consent, or

{z) Sec. 23. {(i) Sec. 81.



THE FACTOKY ACT. 517

connivance of the occiii)ier and in eontiaventimi of his onlcr.s, tlieii tlie
inspector shall proceed against the per.suii wlioui he helievess to Le the
actual olfendcr in the first instance, without first proceeding against the
occupier of the factory or -workshop.

88. A person shall not he lialile in respect uf a repetition of the same
kind of ulfence fioni day to day to any lai'ger amount of tines than the
highest fine fixed by this Act for the olfence, except—

(a.) Avhere the repetition of the offence occurs after an information

has been laid for the previous olfence ; or
(h.) where the otfence is one of employing two or more children,

young persons, or women contrary to the provisions of this

Act.

(5.) Li(jal I'roceediiicis.

89. All olfences under this Act shall he prosecuted, and all fines
under this Act shall be recovered, on summary conviction before a
court of summary jurisdiction in manner i)rovided by the Sunmiary
Jurisdiction Acts (h).

A summary order may be made for the purposes of this Act by a
court of sunmiary jurisdiction in manner provided by the Summary
Jurisdiction Acts.

All fines imposed in pursuance of this Act shall, save as otherwise
expressly provided by this Act, be paid into the Exchecpier.

The court of summary jurisdiction, when hearing and determining a
case arising under this Act, sliall be constituted either of two or more
justices of the peace sitting at some court or public ])laci' at mIucIi
justices are for the time being accustomed to assemble for tlie purpose
of holding petty sessions or of some magistrate or officer sitting alone or
with others at some court or other place a^jpointed for the public
administration of justice, and for the time being empowered by law to do
alone any act authorised to be done by more than one justice of the peace.

"Where a proceeding is taken before a court of summary jurisdiction
with respect to an offence against this Act alleged to be comnutted in or
with reference to a factory or workshop, the occupier of that factory or
workshop, and the father, son, or brother of such occupier, shall not be
cpialified to act as a member of such court.

90. If any person feels aggrieved by a conviction or order made by a
court of summary jurisdiction on determining an information or complaint
nnder this Act, he may appeal (c) therefrom ; subject, in England, to
the condition.s and regulations following :

(1.) The appeal shall be made to the next practicable court of
general or quarter sessions having jurisdiction in the county

{b) 11 & 12 Yict. c. 43, and Sum- (c) Sec. 91, sub-s. G, and ss. 31

mary Jiu'isdictiou Act of 1879 (42 & and 32 of Summary Jurisdiction Act
43 Vict. c. 49). of 1879.



518 THE LAW or MASTER AND SERVANT.

or place in wliicli the decision of the court was given, holJen
not less than twenty-one clays after the day on which !?iich
decision was given ; and

(2.) Tlie appellant shall, within ten days after the day on which
the decision of the court was given, serve notice on the oilier
party and on the clerk of the conrt of smnniary jurisdiction
of his intention to appeal, and of tlie general grounds of such
appeal ; and

(3.) The appellant shall, within three days after such notice is
served, enter into a recognizance before a court of summary
jurisdiction, with or without a surety or sureties as the court
may direct, conditioned to appear at the said sessions and to
try such ajjpeal, and to abide the judgment of the court
thereon, and to pay such costs as may be awarded by the
court, or the appellant may, if the court of summary juris-
diction thinks it expedient, instead of entering into a
recognizance give such other security by de])osit of money
with the clerk of the court of simimarv jurisdiction or
otherwise as the court deem sufficient ; and

(4.) Where the appellant is in custody a court of summary juris-
diction may, if they think fit, on the appellant entering into
such lecognizance or giving such other security as aforesaid,
release him from custody ; and

(5.) The court of appeal may adjourn the hearing of tlie appeal,
and upon tlie hearing thei'eof may contirm, reverse, or modify
the decision of the court of summary jirrisdiction, or remit
the matter to the court of summary jurisdiction with the
opinion of the court of appeal thereon, or make such other
order in the matter as the court thinks just ; and

(6.) The court of appeal may also make such order as to costs to be
paid by either ])arly as the court thinks just ; and

(7.) "Whene^-er a decision is reversed by the court of appeal the
clerk of the jjeace shall indorse on the conviction or order
appealed against a memorandum that the same has been
quashed, and whenever any cojjy or certificate of such con-
viction or order is made, a copy of such memorandum shall
be added thereto, ;ind shall be sufficient evidence that the
conviction or oi'der has been quashed, in every case Avhere
such copy (U" certificate would be sufficient evidence of such
convicti(m or order ; and

(8.) Eveiy notice in writing reipiired l)y this .sectit)n to l)e given by
an a])])ellant may be signed by him or by his agent on his
behalf, and may be transmitted in a registered letter by the
jjost in the ordinary way, and shall be deemed to liave been
Herved at the time when it W(nild be delivered in the ordinary
course of ])ost.



THE FACTORY ACT. 519

91. The following provisions hIkiII luive eflVct -with respect to .suiii-
iiiary proceedings lor otlences and tines under this Act :

(1.) The information shall be laid within two months, or, where
the offence is punishable at discretion Ijy imprisonment, or is
11 breach of the provisions of this Act with respect to holidays,
within three months after the commission of the offence :

(2.) The description of an offence in the words of this Act, or in
similar words, shall be sufficient in law :

(3.) Any exception, exemption, proviso, excuse, or (qualification,
whether it does or not accompany the description of the
offence in this Act, may be proved by the defendant, but
need not be specified or negatived in the information, and it
so specified or negatived, no proof in relation to the matters
so specified or negatived shall be re(|uired on the part of the
informant :

(4.) It shall be sufficient to allege that a factory or workshop is a
factory or workshop within the meaning of this Act, without
more :

(o.) It shall be sufKcient to state the name of the ostensible occupier
of the factory or workshop or the title of the firm by which
he occupier employing persons in the factory or workshop is
usually known :

(6.) A conviction or order made in any matter arising under this
Act, either originally or on appeal, shall not be quashed for
Avant of form, and a conviction or order made by a court of
summary jurisdiction against which a person is authorised
by this Act to aj)peal shall not be removed by certiorari or
otherwise, either at the instance of the Crown or of any
private person, into a superior court, except for the purpose
of the hearing and determination of a special case.

92. If a person is found in a factory, except at meal times, or while all
the machinery of the factory is stopped, or for the sole purpose of bring-
ing food to the persons employed in the factory between the hours of
four and five o'clock in the afternoon, such person shall, until the con-
trary is proved, be deemed for the purposes of this Act to have been
then employed in the factory :

Provided that yards, playgrounds, and places open to the public view,
schoolrooms, waiting rooms, and other rooms belonging to the factory in
which no machinery is used or manufacturing process carried on, shall not
be taken to be any part of the factory within the meaning of this enact-
ment ; and this enactment shall not apply to a factory or workshop to
which the provisions of this Act with respect to the atlixing of notices
do not apply (d).

Where a child or young person is, in the opinion of the court, ap-

{d) Sec. 61.



520



THE LAW OF MASTER AND SERVANT.



paivntly of tla- a^o allogcil In- the iiil'drinant, it .-liall lie dU the delen-
daut to pi'Dve that the ehihl or youni; person is not of that age.

A dechiration in writing by a certifying surgeon lor the district that
he has ])ersonally examined a person employed in a factory or worksho]i
in that district, and helie\-es liim to he under the age set forth in the
declaration, shall be admissible in e\i(k'nce of the age of that person.

A cojiyof a conviction for an offence against this Act pni'porting to he
certified under the hand of the clerk of the peace having the custody of
such conviction to he a true copy shall he ieceival)le as evidence, and
every such clerk of the peace shall, upon the Avritten request of an in-
spector and payment of a fee of one shilling, deliver to him a copy of
the conviction so certified.



PART IV.

Definitions, Savings, Aitlication to Scotland and Ireland,
AND Repeal.

(1.) Definitions.

93. The expression " textile factory " in this Act means —
any premises wherein or within the close or curtilage of which steam,
water, or other mechanical power is nsed to move or work any
machinery employed in preparing, manufacturing, or finishing (e),



(c) As to "finishing" and "inci-
dent," see W/ii/mper v. Harney
(1865), 18 C. B. N. S. 243 ; 34 L. J.
JI. C. 113. (Weaving or plaiting of
cotton tliread by steam, or other me-
chanical ]io\ver, into a covering for
strips of iron, to be used in making
crinoline skirts, a process incidental
to the manul'acture of a cotton fabric,
within 7 Vict. c. 15, s. 73.)

Ifardmsllc v. Junes (1862), 3 15. k
S. 153 ; 32 L. .T. M. C. 49. (S. B., ein-
]iloyed ill "skut(;hing" — that is, tlie
tiist jirocess of finishing goods, wliicli
liave been printed — in a room where
no persons were employed in ]iriiiting
figures. Ihit this room liad direit
communication witli the print works,
in whicli all the inoccssos of printing
were carried on : held that S. B. was
employed in a ]irint work. The
Court did not decide whether skutch-
iiig was an "incident to printing
Jirocess.") Tuvlor v. J/ickrs (1862),
12 C. B. JJ. S.'l52 ; L. J. M. C. 242.
(Api)ellant, occiijiier of premises in
wliicli steam jiower was used to drive
machinery employed in manufactur-



ing webbing, of -which men's braces
and horses' girths were made. The
premises formed a square ; on the
left were the buildings in which
.steam power was used ; on the
right the nianufiicture of braces and
girths was carried on. II., a child,
was em]ilo3'cd in boring holes in
pieces of leatlier to l>e attaclicd to the
webbing. No part of the webbing
was jilaced in his hands, and no ma-
chinery was in the room in which ho
was employed : held eni])loyment in
a factory within 7 & 8 Vict. c. 15.)
Jfoif/e V. Onnii (1862), 12 V. B. N.
S. 124. (Child employed by calico
]n-inters; bleaching, dyeing, and
linishing or stilfeiiiiig were jierformed
at one mill belonging to appel-
lants, printing at another. These
jilaecs were seven miles apart :
held that a child emjiloyed at tlie
foinier was em]il()yed in "an inci-
dental " printing process within 8
k. 9 Vict. e. 21', and tliat tiie place
where lie was eniiiloyed formed a
jiart of "the establi.slimi'nt wlicre the
chief process of printing was carried



THE FACTORY ACT. 521

or in any ])rocc'S3 incident to tlu' niamil'acture of, cotton, wool, hair,
silk,lla.\, hemp, jute, tow, china-^a-ass, cocoa-nut fibre, or otlier like
material, either separately or mixed together, or mixed Avith any
other material, or any fabric made thereof :

Provided that print works, bleaching and dyeing works, lace
warehouses, paper mills, Max scutch mills, roiie works, and hat
works shall not be deemed to be textile factories.
The expression " non-textile factory " in this Act means —

(1.) any works, warehouses, furnaces, mills, foundries, or places

named in Part One of the Fourth Schedule to this Act,
(2.) also any premises or places named in Part Two of the said
schedule wherein or within the close or curtilage or precincts
of which, steam, water, or other mechanical power is used in
aid of the manufacturing process carried on there,
(3.) also any premises wherein, or within the close or curtilage or
precincts of which, any manual labour is exercised by way of
trade or for jmri^oses of gain in or incidental U> the following
purposes, or any of them ; that is to say,

(((.) in or incidental to the making of any article or of part

of any article, or
(h.) in or incidental to thealteiing, repairing, ornamenting,

or finishing of any article, or
(('.) in or incidental to the adapting for sale of any article,
and wherein, or within the close or curtilage or precincts of
which steam, water, or other mechanical power is used in aid
of the manufacturing jjrocess carried on there.
The expression " factory " in this Act means textile factory and non-
textile factory, or either of such descriptions of factories.
The expression " workshop " in this Act means —

(1.) any premises or places named in Part Two of the Fourth
Schedule to this Act, which are nut a factory within the
meaning of this Act,

on.") Hovjnrth v. Coles (1862), 12 then on to spools : held that the

C B. N. S. 139. (A child wliose latter premises were a factory within

sole business Avas "raising," or 3 & 4 Will. IV., c. 103; and that

finishing fustians at works where no the winding was a process incidental

bleaching or dyeing was done, not to the manufacture of thread.) (Jules

within tlie Bleaching and Dj'eing v. Dickinson (1864), 1(3 C. B. N. S.

Works Act, 23 & 24 Vict. c. 78.) 604 ; 33 L. J. M. C. 235. (Respondents

Finishing, ins. 7, " evidently means owned a paper mill at Manchester,

finishing as incidental to the opera- and another in Herts ; the former

tions of bleaching or dyeing." used for sorting, cleaning, and work-

IByles, J. Haydoiiw Taylur{\S6'd), ing up rags, and reducing them "to

33 L. J. M. d 30. rXhread manu- half stuff." Atthelatter this "stuff"

i'actured in hanks at respondent's was converted into paper : held, on

manufactory at Mansfield. These the authority of IIoijlc v. Oram, that

hanks were sent to his manufactory the two were parts of one factory and

at Leicester, to be wound by machinery that the latter was exempted from the

moved by steam on to cops, and operation of the 7 & 8 Vict. c. 15.)



522 THE LAW OF MASTER AND SERVANT.

(2.) also any premises, room, or place not being a factory within the
meaning of this Act, in which premises, room, or place, or
vithiii the close or curtilage or precincts of which premises,
any manual labour is exercised l)y way of trade or for
purposes of gain in or incidental to the following jourposes or
any of them ; that is to say,

(((.) in or incidental to the making e)f any article or of part

of any article, or
(b.) in or incidental to the altering, repairing, ornamenting,

or finishing of any article, or
(c.) in or incidental to the adapting for sale of any article,
and to which or over which premises, room, or place the
employer of the persons working therein has the right of
access or control.
A part of a factory or workshop may fur the purposes of this Act be
taken to be a separate factory or workshop ; and a place solely used as a
dwelling shall not be deemed to foi-m part of the factory or workshop for
the pitrposes of this Act.

Where a place situate within the close, curtilage, or i)recincts forming
a factory or workshop is solely used ior some purpose other than the
manufacturing process or handicraft carried on in the factoiy or work-
shop, such i^lace shall not be deemed to form part of that factoiy or
workshop for the purposes of this Act, but shall, if otherwise it would
be a factory or workshop, be deemed to be a separate factory or work-
shop, and be regulated accordingly.

Any premises or place shall not be excluded from the definition of a
factory or workshop by reason only that such premises or place are or is
in the open aii(/).

This Act shall not apply to such workshops, other than bakehouses, as
are conducted on the system of not employing any child, young person,
or woman therein, but save as aforesaid applies to all I'actories and work-
shops as before defined, inclusive of factories and workshops belonging
to the Crown ; provided that in case of any jniblic emergency a Secretary
of State may e.\emi)t a factory or workshop belonging to the CroAni from
this Act to the extent and during the period named l)y him.

The exercise by any child or young person in any recognised eflicient
school during a portion of the school hours of any manual labour for the
purpose of instructing such child or young person in any art or handi-
craft, shall not be deemed to be an exercise of manual labour for the
purpose of gain within the meaning of this Act.

94. A child, young person, or woman who works in a factory or work-
shop, whether for wages or not, eillu-r in a manufacturing process or



if) Intendna to obviate the (lecisiou gmvcy. L-i'. (1874), L. R. 9 Q. B.
\\\'Knitv. Asllr.if {\^m),\.. W. 5 g. 363; 4.". L. J. J\I. C. 10r>. See
J}. 19 ; 39 L. J. M. C. 3 ; and Itcd- note (a.)



THE FACTORY ACT. 523

liaiulicraft, or in ck-aniiig any i)ait of tlic facton' or workshop used for
any manufacturing jwocess or handicraft, or in cleaning or oiling any
part of the machinery, or in any other kind of work whatsoever incidental
to or connected with the manufacturing process or handicraft, or con-
nected with the article made or otherwise the subject of the manfactur-
ing process or handicraft therein, shall, save as is otherwise provided
by this Act, be deemed to be emjiloyed therein within the meaning of
this Act.

For the purposes of this Act an apprentice shall Ije deemed to work
for hire.

95. The expression " ceitified efficient school" in this Act means a
public elementary school within the meaning of the Elementary Educa-
tion Acts, 1870 and 1873, and any workhouse school in England
certified to be efficient by the Local Government Board, and also any
elementary school which is not conducted for private profit and is open
at all reasonable times to the inspection of Her Majesty's inspectors of
schools, and re(iuires the like attendance from its scholars as is requu-ed
in a public elementary school, and keeps such registers of those attend-
ances as may be for the time being re(pured by the Education Depart-
ment, and is certified by the Education Department to be an " efficient
school;" and the expression "recognised efficient school" means a
certified efficient school as above defined, and also any school which the
Education Department have not refused to take into consideration under
the Elementary Education Act, 1870, as a school giving efficient
elementary education to and suitable for the children of a school district,
and which is recognised for the time being by an inspector under this
Act as giving efficient elementary education, and the inspector shall
immediately report to the Education Department every school so
recognised by him.

96. In this Act, unless tlu' context otherwise re(|uires, —

The expression " child " means a person under the age of fourteen

years :
The expression " young person " means a person of the age of fourteen

years and under the age of eighteen years :
The expression "woman" means a woman of eighteen years of age

and upwards :
The expression " parent "(;/) moans a jiarcnt or guardian (jf, or person

having the legal custody of, or the control over, or having direct

benefit from the wages, of a child or young person :
The expression "Treasury" means the Commissioners of Her

Majesty's Treasury :
The expression " Secretary of State " means one of Her Majesty's

Principal Secretaries of State :

(g) See s. 3 of Education Act of IS 70.



524 TIIK LAW OF MASTER AND SERVANT.

The expression " Ediu-ation Departiueiit '' means the Lords of the
Comuiittoe of the Privy Council on Education :

Tlie expression " sanitary authority " means anurl)an or rural sanitary
authority within the meaning of the Puhlic Healtli Act, 1875, and
any tH)mmissions, board, or vestry in the metropolis having the like
powers as such urban sanitary authority :

The expression " person " includes u body of persons corporate or un-
incorporate :

The expression "weelc" means the period between midniglit on
Saturday night and midnight on the succeeding Saturday night :

The expression " night "' means the period between nine o'llock in the
evening and six o'clock in the succeeding morning :

The expression " jtrescribed " means prescribed for the time being by [a
Secretary of State :

The exi>ression " Summary Jurisdiction Acts " means the Act of the
session of the eleventh and twelfth years of the reign of Her present
Majesty, chapter forty-three, intituled "An Act to facilitate the
performance of the duties of justices of the peace out of sessions
M'ithin England and Wales with respect to sunnnarj^ convictions
and orders," and any Acts amending the same :

The expression "court of summary jurisdiction " means any justice or
justices of the peace, metroj^olitan police magistrate, stipendiary or
other magistrate, or olticer, by whatever name called, to whom
jurisdiction is given by the Summary Jurisdiction Acts or any Acts
therein referred to :

The expression "mill-gearing" comprehends every shaft, whetlier
upright, obliipie, or horizontal, and every wheel, drum, or jiulley by
which the motion of the first moving power is communicated to any
machine appertaining to a manufacturing process.

Tlie factories and workshops named in the Fourth Schedule to this Act
are in this Act referied to liv the names therein assigned to them.



Special Exemption of certain Trades.

97. The exercise in a private house or private room by the family
dwelling therein, or Ity any of them, of manual labour by Avay of trade
or foi' tlie purposes of gain in or incidental to any of the handicrafts
specified in the Fifth Scliedule to this Act, sliall not of itself constitute
such house or room a workshop within tlie meaning of this Act.

When it is proved to the satisfaction of a Secretary of State that by
reason of the light character of the liandicraft carried on in any private
house or private room by the family dwelling therein, or by any of them,
it is exjiedient to extend this section 1(j that handicraft, he may by order
extend the same.

The order shall Ijc made in manner jnovided by Part Two of this



TIIK FACTOKY ACT. OZO

Act, ami tliat part sliall aj)])!}' so far as ciicumstances admit as if tlie
order Avere an order extending an exception.

98. The exercise in a private house or private room l)y tlic family
dwelling therein, or by any of them, of manual labour for the purposes
of gain in or incidental to some of the purposes in this Act in that behalf
mentioned, shall not of itself constitute such house (jr room a workshop
where the labour is exercised at irregular intervals, and does not furnish
the whole or principal means of living to such family.

{■2.) S'lvings.

99. Where in a factory the owner or hirer of a machine or implement
moved l)y steam, water, or other mechanical power, in or about or in
connection with which machine or implement children, young persons,
or women are employed, is some person other than the occupier of the
factory, and such children, young persons, or women are in the emi^loy-
ment and pay of the owner or hirer of such machine or implement, in
any such case such owner or hirer shall, as far as respects any offence



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 55 of 77)