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

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Troplong's I^ouage, ii. 288. M. Lau-
i"ent takes up the same position. So
i'ar, however, as his remarks do not
relate to cases in which there is no
consideration for tlie promise to ser\c
for life, they would be fatal to all
contracts of hiring and service, what-
ever might be their duration. In
Allen V. S/wne, JMorrison's Dictionary
of Decisions, 23, 9454, a contract to
serve three terms of nineteen years
was "reduced," as being in restraint
of trade. As to other Scotch deci-
sions, Campbell's edition of Fraser on
Master and Servant, 3, 4.



(;)() (1837), 2 i\I. & Vr. 273. In
Viner's Abridg., blaster and Servant,
N. 5, XV. 323, it is stated that a
contract to serve for life nnist be liy
deed. The reference given is 2 H. f.
14, p. 15. The action, however, ia
this case was not l)y the master
against the servant upon a contract
to serve for life, lait an action of
simple debt against executors by a
servant to recover arrears of wnges
for ser\ices actirally j'crformed. Such
an action was not then maintainable.
3 iV; 4 Will. lY. c. 42, s. 14. The
case, too, turned on the Statute of
Labourers. See also I31ackstone,i. 424;
Chitty on Contracts, 10th ed., 532.

(/(.) Clarke v. (,'apc (1596), 5 IJe-
ports, 129. It turns on the doctrine
of Magna Charta, c. 9, Xullus liber
Jiiimii imprisonctur ; Foster v. Jacksov,
(no date; but in time of Charles II.),
Hob. 61. See the protest of Ellen-
borough, C.J., in Ile.e V. Stowmarket
(1808), 9 East, 211, against the idea
that a parish apprentice could Ije
transferred as if a parish slave.



32



THE LAW OF MASTER AND SERVANT.



validity of an agreement by certain workmen or masters to
work or not according to the decision of a majority (o). It is
said, however, that there is one distinct exception to the prin-
ciple that purely servile incidents cannot be attached to a con-
tract of hiring ; a master may, it is said, chastise a hired ser-
vant (p). Notwithstanding fJicto to be found to this effect,
it is improbable that such a right would be admitted in modern
times. The authorities in favour of it are old. Some of
them referred to the relation of lord and villain ; such
a right does not flow from the contract of hiring and
service as now understood ; usage is wholly against the
existence of so dangerous a power ; and there are dicta — in
Wlnstone v. Linn {q), for example — against it. On the
other hand, a master may chastise his apprentice for neg-
ligence or disobedience, provided it be done moderately (r).
The apprentice is placed with the master to be instructed ;



(o) Eilton V. Eclerslcij (1856), 6
E. & B. 47.

ip) Bacon's Aliridgement, Master
and Servant, N. Probably the law
upon this subject has changed. It is
clear that Hale (History of Pleas of
the Crown, 453) and Hawkins (Pleas
of the Crown, i. 85) understood that
such a power existed. See also
Foster's Criminal Law, 262, and 3
Salk. 47. Such, too, seems to have
been Holt, C.J.'s, niling in Kcat's
Case, whicli was a case of master and
servant. Skinner (1097), 668. Black-
stone, i. 0. 14, ouly goes so far as to
say that "if the master or master's
wffc beat any other servant of full
(ujc, it is good cause of departure.
In an anonymous case of tlie 2J<lh
and 29th Charles 11., it was held a
good answer to an action for assault
and battery of one servant by another
that the latter was ordered to bring
the jilaintilf from a conventicle. The
Chief .Justice and Scroggs, J., were
of o]iinion that "a man may as well
sentl for his servant from a conven-
ticle as an alehouse, aiul niay keej)
liim from going to eitlier of those
]»laces." in a learned nnonymnns
work i)ublished in 1767, cntitkd



" Laws conceming ]\Iastcrs and Ser-
vants," p. 126, the existence of tlie
right of correcting servants is recog-
nised ; and the same is true of Bird's
Law of ]\Iaster and Servant (1801),
p. 5. On the oUier hand, there is a
passage in Fitzherbcrt, F. N. B., 168,
to the elfect that battery by the
master is a good cause of departure.
See also Hawkins, i. 483. Kent in
his Commentaries, ii. 261, says the
right of chastising "may safely be
confined to api)rentices and menial
servants while under age, for then
the master is to be considered in loco
2mrc7itis." lu liajiiui v. Hutdhii
(1852), 3 C. .V: K. 142, it was ruled
by Piatt, 15., that one servant, even
an u]i])er servant, had no right to
chastise another servant. See also
Lattery. Braddvll (1880), 50 L.T. 166
and 448 ; 43 L. T. 369 ; 29 W. 1{.
239.

(q) Holroyd, .7., 0823), 1 P.. & C.
469.

(/•) Chitty's Gen. Prac. vol.i. 70a;
Giilbrrt v. Fletcher, Croke (4 Ch. L),
7i9; Pcnn\. Ward {l^'il,), 2 C. M.
& 1{. 338 ; Combes' Case (1613), 9 liep.
76a.



MASTER AND SERVANT AND MASTER AND SLAVE. 33

and as he cannot be dismissed for misconduct, wliich may be
done in the case of a servant, and as the master stands
ill loco iiarentls, it is deemed expedient to permit him
to chastise an apprentice. Another exception exists in tlie
case of a master of a ship. Having autliority to do what is
necessary for the safety of the ship and those on board, he
may imprison a seaman or inflict reasonable and moderate
chastisement for disobedience to hxwful commands, insubor-
dination or mutinous, riotous or insolent conduct (s). The
power may be exercised not merely when the ship is at sea
and beyond the reach of assistance {t). No particular mode
or instrument of punishment is prescribed ; it will depend
on the circumstances of the case and the gravity of the
offence how the culprit should be punished. But the punish-
ment must be applied with due moderation, and should a
captain inflict upon a seaman immoderate and unreasonable
punishment, he will become a trespasser (it), and will be
liable to an action. Due inquiry should be made before
punishment is inflicted («). It is the duty of the master
to cause a clear statement of all offences committed, the
inquiry and the punishments' inflicted, to be inserted in the
official log.

(.v) Elwdesx. Zcr/c7i(1819), 2 Stark. (1S37), 3 Hag. 346, as to use of force

516 ; Agincourt (1824), 1 Hag. 271, to prevent iimtiny.
273 ; Loivthcr CastU (1824), 384 ; («) Watson v. Christie (1800), 2 B.

Hamutford v. Hunn (1825), 2 C. i: k P. 224 ; Maelachlau's Law of

V. 148, wliicli shows that the verdict Merchant Shipping, 3rd ed. , 205.

of a court martial would not be con- As to punishments of seamen for

elusive evidence of the truth of a offences against discipline at sea, 17

master's charges against a seaman. & 18 Vict. c. 104, s. 243; Part II.

{t) Lamb v. Burnett, 1 Cr. & J. Chapter IX.
(1831), 291, (action for assaulting (,»•) 17 & 18 Vict. c. 104, s. 244.

seamen on board ship at anchor As to duty of instituting inquirj-,

within two miles of Macao, and within Murray v. Moutrie, 6 C. & P. 471.

bail of several vessels ; held that the See as to punishments of sailors,

mutinous conduct of the plaintiff sec. 149 of tlie ilerchant Sliipping

was a good justification). Bayley, J., Act of 1854, Part II. Chapter IX. ; the

rises language which seems to imply Regulations as to misconduct sanc-

that this power exists anywhere ; but tioned by the Board of Trade, July,

query if the vessel was in the Thames 1869; Boyd's Merchant Shipping

or in anv Englisb port. Enchantress Acts, 138 ; and Maude and Pollock's

(1825), i Hag. Ad., 395. The Lima Merchant Shipping, 4th cd., 126.



CHAPTER II.



Definitions of IVIaster and Servant.

A SERVANT is one who for consideration agrees to
work subject to the orders of another (a).

Few judicial definitions of a servant arc to be found in
the reports. Judges have generally acted in regard to this



(a) The difficulty of dcfniing the
relation of master and servant will
be best appreciated by considering
some of the attempts to do so. ' ' A
person who contracts with anotlier to
do certain work for him is the ser-
vant of that other until the work is
finished, and no other person can
emidoy such servant to the prejudice
of the first master ; " Blake v. Lan-
yo,i (179.')), 6 T. II. 222 ; cited with
approbation by Cronipton in Liihtky
V. Gyc ; 2 E. & B. 226. Terhaps
these words, which would include
contractors, were not intended as a
complete definition. "The test is
very mmdi this, viz., whether the
person charged is under the control,
and bound to obey the orders of his
master;" JMaokburn, J., in Queen
V. iXecjiis (1873), L. R. 2 C. C. 37,
with reference to "clerk or servant"
in 24 k 25 Vict. c. 9G, s. 68. "A
servant is a person subject to the
comm.and of his master as to the
manner in which he .shall do his
work ;" I'raniwell, L. .1., in Yeiccns
V. Aoakcs (18S0), L. 1!. 6 Q. 15. D.
.'532. " A clerk or servant is a person
l)ound eitlier by an express contract
of service or by conduct implying
such a contract to obey the orders
and submit to the control of liis
master in the transaction of tlic busi-
ness which it is his duty as .sucli clerk



or servant to transact ; " Stephen's
Digest of Criminal Law, 220. In a
work on the Law of i\Iaster and Ser-
vant, published in 1767, I find the
following delinition : "A servant
seems to be such an one as, by
agreement and retainer, oweth duty
and service to another, who, there-
fore, is called his master. "A
servant is one who is employed to
render personal servii-e to his em-
ployer, otherwise than in the
pursuit of an independent calling,
and who in such service remains en-
tirely under the control and direc-
tion of the latter, who is called his
master;" New York Code, s. 1034.
" In .strictness, a servant is one who,
for a valuable consideration, en-
gages in the service of another, and
undertakes to observe his direc-
tions in some lawful business ; "
Cooley on Torts, 531, "A person
who ultroneously agrees to give his
services to another for a detorminatc
time, and an ascertained hire, and
wlio may get rid of the eontract by
paying damages ; " Fraser on the
Law of Master and Servant, 3. "A
person wlio hires liis services ultro-
neously to another, for a certain ]mce
in mone}', and who may get rid of
the contract l)y iiaying damages ; "
Fraser, Personal and Diniiotic I'ela-
tions (ed. 1846), ii. 367. " Volun-



DEFINTTIONS OF MASTER AND SERVANT. 35

matter on the principle omn'is defmitio in le<je iicriciilosa est.
Though important consequences, civil and criminal, hang



tary (as opposed to 'necessary')
servants are those who enter into
service without (.oinpulsioii, liy au
agreement or contract, for a iletermi-
iiate time ; " Erskine, 1, title 7, (J2.
"A master is one who has legal
authority over another ; and the per-
son over wliom sucli authority may
be riglitfullj' exercised is his servant "
(Schouler on Domestic Relations,
599), wliich would e([ually ap^jly to
the relations of niuster and ser-
vant and master and slave. " A
master is one who, by law, has a
right to personal authority over an-
other ; and such person, over wliom
such authority may be rightly exer-
cised, is servant : " Reeve's Domes-
tic Relations, ^^99. This is open
to the same objections as the last.
In Gibbon's Law of Contracts of work
and service it is said that the relation
of master and servant is a contract
"wlierebj' one man lets his personal
services to another, eitlier for a par-
ticular purpose or generally, and by
which the servant is bound to do as
jnuch as he himself can towards the
])erformance of the work for whicli he
is engaged " — a definition whicli seems
to include some unnecessary ele-
ments. "Shortly,'" says Lord Jus-
tice Bramwell, ' ' the relation of
master and servant exists where
tlie master can not only order the
work, but how it shall be done.
AVhen the person to do the work
may do it as he pleases, then such
])erson is not a servant ; " Lr.tfcr to
Sir Henry Jackson. l)r. Johnson's
definition is "one that attends
another, and acts at his command "
— which is most applicable to menial
servants. Austin makes the relation
turn on the fact that either of the
jiarties to the relation " incurs oltliga-
tions and acquires rights of which
the objects are not determinable
individually, though their kinds may
be fixed " (Jurisprudence ii. 97(3).
In other words, the relation of master
and servant is a certain status, a
view which, though true of domestic
servants, &c., does not hold good of



a servant employed to do one act, or
a similar set of acts repeatedly ; see,
too. It. V. Spencer, R. k R. 299.
" He is to be deemed tlie master who
has the supreme choice, control, and
direction of the servant, and whose
will the servaTit represents, not
merely in the ultimate result of his
work, but in all its details ;" Shear-
man & Redfield on Negligence, s. 73.
" In its legal acceptation it (servant)
includes any one who is bound to
perform services, on the authority
and for the 1)enefit of another, his
master, whether these services are
rendered gratuitously or for a stii)U-
lated- consideration ; " Sconce's Law
of ]\Laster and Servant, quoted in
Currie's Indian Criminal Code, 354.
See Hobbes's definition, English
"Works, ii. 109.

In conse(|uence, no doulit, of the
ambiguity of the phrase " master and
servant," modern Acts have made
use of such terms as " employers and
workmen" (see sec. 10 of 38 & 39
"\'ict. c. 90), or have defined what
they meant bv contracts of service
(see 30 & 31 Vict. c. 141).

As to the meaning of "servants"
in wills, see Townahcnd v. IVindliam
(170tJ), 2 Vern. 546. "Stewards of
Courts, and such who are not oldiged
to spend their whole time with their
master, but also may serve anj^ other
master " not within bequest to "such
of my servants as shall be living
with meat the time of my death. "
SJrrrh V. T/ioringfiiii (17.'; 4), 2 Ves. Sen.
500 (l)equest to "the three servants
that shall live with me at the time
of my death ; " testatrix had three
at time of death ; all included).
C7(lh-ot V. Bromlr,, (1806), 12 Ves.
114 (bequest to "all my other ser-
vants who shall be living with me at
the time of my decease,'" did not
include a coachman provided with
carriage and horses by a job-master,
though returned by testator as his
coachman under Acts ira]>osing duty
on male servants^ Herbert v. llriil
(ISl(i), 16 Ves. 4S1 (legacy to plain-
tiff "if in his service" at time of



36



LAW OF MASTER AN'D SERVANT.



upon the distinction between servant and contractor, servant
and bailee, servant and a<ient, servant and partner, Courtn
have, as a rule, abstained from defining the relation of
master and servant. They have been content to deal with
each case as it arose. For hundreds of years the word or
similar terms have been used in statutes. Difficidties arose
as to its meaning in one of the first Acts in which it appears,
the 25 Edw. III. s. 1 (6). Similar difficulties still frequently



testator's death ; ]iarol evidence to
show that plaintiff, though sent
from the testator's liouse hefore his
d^'ath, was considered hy him to be
iu his service ; hckl entitled). Howard
V. WUson (1832), 4 Hagg. Ecc. 107
(a coachman, who was originally
hired by, and had lived for live years
witli, the testatrix, and who remained
with her, though she changeil her
job-men, entitled, under "each of
my servants living with me at the
time of my death ; " the job-
masters paid him wages, and found
him in livery). Booth v. Dean (1833),
1 Jly. & K. 5G0 (under bequest to
' ' each of my servants one year's
wages over and above what may be
due to them at time of my decease,"
only "family servants, usually hired
by the year," and not a gardener
or' cow-bov at weekly wages).
ParTcr.r v. Marchant (1842), 1 Y &. C.
2I>0 (a person in the testator's scrnce
at time of date of codicil, but who
quitted it before his decease, entitled,
under bequest, "to the otlier ser-
vants"). nUlinrf V. EUia-. (1845), 9
Jur. 936 (a farm baililf who had lived
with testator twenty-eight years, who
had £350 a-year, and wIki was entitled
to take pu])ils in agriculture, enti-
tled under "one year's wages to each
of my servants in my service at my
death who shall have lived witli me
five vears or upwards "). Oqle v.
Morij'fui (1852), 1 D. M. & G. 359
(liead gardener, living in one of tes-
tator's cottages, and not fed by him,
not "a .servant in my dnme.'stic estab-
lishment "). Blackimll v. Pennant
(1852), 9 Hare, 551 (bequest of a.
year's wages to "servants living with
mo at tlie time of my dcccasr;, and
who .shall then have lived in my



service for three years," included
servants living in a dilferent house
from that in which testator lived ;
excluded servants not hired by the
yeai'). Thrupp v. CoUdt (1858), 26
r>eav. 147, 5 Jiu-. X. S. Ill (under
bequest to "servants in his (testator's)
service at the time of his decease,"'
two outdoor servants continuouslj'
employed at weekly wages, entitled ;
not so a boy employed at weekly wages
in carrying letters a few months in
tlie year, whilst the testator was
at his country residence, though the
boy was so employed at testator's
death). Armstrong v. Clavcring
(1859), 27 Beav. 226 (a land agent
and house steward, residing out of
the house, entitled under a bequest
to " all my servants and day labour-
ers who .shall be in my service at the
time of my death"). Darlow v.
Edwards (1862), 1 H. & C. 547 ; 32
L. J. Ex. 51 ; (5 L. T., X. S., 905
(a servant who had been wrongfuUj'
dismissed two days before the testa-
tor's death, not entitled under beipiest
of an annuity, "jTovided she shall
1)0 in my service at the time of ni}'
decease "). Ih' Hartley's Trust, "NV.
N., May 4, 1878 (legacy to M. B.,
provided she ri'inaincd in testatrix'.*;
service till her death ; testatrix i-e-
moved to lunatic asylum : M. U.
dismissed with wages in lieu of notice ;
order in lunacy directing .sale of ])ro-
pcrty of testatrix ; M. IJ. not entitled
to legacy). See .Tarman on Wills,
M\\ ed., vol i., ]>. 32.'j ; Williams on
Kxecutor.s, ii. 1152 ; lledlield on
AVills, vol. i. , sec. 53.

(/') An embroiderer a servant
or labourer within the statute, 47
Ed. III., f. 22; a collector of rents
not within it. 19 Hen. YI., f. 53.



DEFINITIONS OF MASTER AND SERVANT. 37

arise as to wlio is a servant within the meaning of the many
Acts in which the word occurs. Yet the Legislature has
rarely attempted to define it. The above definition is not
offered as perfect. The term is, in fact, used loosely and in
different senses, No definition which would include all its
significations in statutes, in settlement cases, in actions for
seduction or for enticing away, and in wills, is possible. The
word has not been employed in the same sense at different
periods of history. It has been extended to relations to
which it was not once applicable.

Originally the term indicated a sort of status. A servant
was generally a member of his master's household. He was
in a sense under his master's 'potestas. He is mentioned in
the same context as the wife or son or daughter of the house.
The relation is often described as one of allegiance (c). The
statute of treason, 25 Edward III. s. 5, which enumerates
various forms of treason, and which adds " there is another
manner of treason (petit treason), that is to say, when a
servant slayeth his master, or a wife her husband, or when a
man, secular or religious, slayeth his prelate, to whom he
oweth faith and obedience," presupposed that master and
servant stood to each other in a degree of intimacy which is not
now implied. Even at the same date the use of the term has
varied according to the subject matter. In actions for seduc-
tion, a person who does any trifling act of service is regarded
as a servant (cZ). Mere casual temporary employment for a
particular purpose will not suffice to make a person a servant
within the meaning of some statutes (e). In the case of
others this is enough (/). Servant is used, for example, in
one sense in the Carriers Act (11 Geo. I. and 4 Will. lY.
c. 68, s, 8) {g), and in another in the Larceny Act (24 & 25



See as to the difficulties whicli arose cd., 453; see, however, li. v. Huglics

as to what servants could be luuiislicd (1832), 1 Jlood. C. I'., 370.

for pettj' treason, 1 Hale 1'. of C, (f) It is often used as a sjTionyra

3 80. for domestic servant, Ycucns v. Noakcs

(c) Bacon's Ahridg. V. 333. (ISSO), L. K., 6 Q. B., 538.

{d) See Chapter XXIII. [(j) See p. 49.

(e) Koscoe, Criminal Evidence, 9th



88



LAW OF MASTER AND SERVANT.



Vict. c. 96, s. CJS) (//,). The above definition is offered only
us explanatory of a usual acceptation. No Avord in legal lite-
rature is more common or more ambiu-uous than " servant."



(h) The following are some of the
respect to " servant " and " clerk."

Skrvant —

JiexY. Squire (1818), E. & 1!. 349,
(overseers of a township employed
prisoner as their accountant and trea-
surer ; received and paid all money
receivable or payable on their ac-
count ; servant or clerk ■within 39
Geo. III. c. 85).

J!r.r V. Jlwjhcs (1832), 1 M. C.
C, 370, (prisoner employed as thiver
to drive a cow and calf and to ]mu^
back tlie price. He Avas employed
to receive in one instance only ;
witliin 7 &; 8 Geo. TV. c. 29, s. 47).

7.Vr/. V. Tongue (1860), 30 L. J., M.
C. 49, (prisoner secretary to a money
club ; his duty to summon meetings
and to make out the promissory notes
on demand and to countersign all
chef[ues upon the treasurer ; he re-
ceived a salary).

Ilej. V. Maedoiiald (1S61\ 31 L. J.,
M. C, 67, .'i L. T., N.' S., 330,
(prisoner a cashier and collector of a
firm ; he received in lieu of increase of
salary percentage of protits ; no con-
trol over business).

Jifrj. v. Proud (IS61), 31 L. ,T., M. C.
N. S. 71, (paid secretary of a friendly
society, whose duties were to attend
meetings of lodge, write minutes of
proceedings, keej) correct accounts of
receipts and exjifuditures, i:c. He
was a-membcr of the society).

Jieg. V. Ti/e (1861), L. & C. 29,
30 L. J., M. C. 142, 14 L. T., N. S.,
259 (prisoner a commercial traveller
emphiyed by jirosecutors ; paid by
commission ; at liberty to receive
orders from others).

Jif'j. v. i/«.f</e(1863), 32 L. .1., M.
C. 63 (secretary of a Ijenelit society, who
liad according to the rules, notliing
to do witli the receipt of money paid
olf by trustees, but who was in the
habit of receiving such money ; licld
tliat he migiit }je convicted of em-
be/zlement under 7^8 Geo. IV. c.
29, 8. 47).

Jieg. V. Dij:ou (1868), 11 Co.v, C. C.



chief decisions under the statutes with

Not Seiiv.\nt —

Jicx V. JJurtun (1829), 1 M. V. C.
237, (i)risoner a clerk of chaplain who
collected tlie sacrament money from
the communicants, is not the servant
of the incumbcTit, churchwardens, or
poor of township within 7 iV: 8 Geo.
IV., c. 29, s. 47).

Jleg. v. JFa/ker (1858), 27 L. J.,
M. C. 207 ; 1 Dears. & l)ell, C. ('. 6U0,
(prisoner kcjit a refreshment room ;
employed by prosecutors to get orders
for manure ; ])aid by commission ;
no detinitii time to be spent in col-
lecting orders ; with a view to obtain
the security of guarantee society,
prosecutors paid a salary of £1 a
year). "

Jleq. V. J/(/?/ (1861), 30 L. J., M.
C. 8i ; 3 L. t., N. S. 680, (defen-
dant employed to obtain orders foi'
iron at a certain commission. ItwaS'
his duty to account immediately to
the [>rosecuturs for any mone}" he
received).

Jiecj. V. 2,Vc?t (1863), 33 L. J., M. C.
59; 9 L. T., N. S. 452, (prisoiu-r a
member of a committee formed of
uiembers of two Iriendly societies for
the purpose of conducting a railway
excursion ; defemhint and others
nominated to sell tickets ; received
no lemuneration ; he did not pay
over proceeds of tickets to person
a[i])ointed to receive the money).

J!eg. V. (timer (1864), L. & G. 466 ;
33 L. J., M. G. 169 : 10 L. T., N. S.
582 (under-bailitl' of County Court,
not seivant of higli bailitf, though
apj)ointeil liy him ; servant of the
Court).

Reij. v. 5oM.c/-.'((1866), L. I?., 1 C. C.
41 ; 35 L. .!., M. G. 206 ; 14 L. T.,
N. S. 671, (prisoner first employed as
agent or traveller for tlic sale of coals,
at a salary of one guinea a week and
].s\ a tun commission to cnllect debts.
Snbse(|uently on his going into tl:o
retail trade salary stopped, and only
paiil by commission).



DEFINITIONS OF MASTER AND SERVANT.



39



Many contracts relating to work, labour, and services
do not establish the relation of master and servant. Bail-



178, (prisoner engaged by U. at
weekly wages to manage a shop. U.
luiving assigned all his estate and



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 6 of 77)