John Macdonell.

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

. (page 61 of 77)
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the case may he], having refused or delayed to act in the above-mentioned
reference, and [or only, as the case may he],

are [or is] by me duly nominated referees [or referee], together witli tlie
above-named [or ], to settle the matters in difference

between the above-named and ; and the said or

together with the said [or the said or

, as the case may he], are directed to meet at the place above
mentioned, en the day of in the year of our

Lord at of the clock in the forenoon [or afternoon, as

the case rnaij he'].

A. B.

And the persons so appointed as aforesaid shall hear and examine tlie
]arties and their witnesses, and determine such dispute within two days
after such nomination, exclusive of Sundays ; and the determination of
such arbitrators shall be final and conclusive.

6. And be it further enacted, That in all cases where complaints are
made respecting bad warps or utensils by workmen, the ]ilace of
meeting of the referees shall be at or as near as may be to the place
■where the -work shall be carrying on ; and in all other cases at or as
near as may be to the place or places where the work has been given
out.

7. (If any person so complaining shall not attend, or send some person
on his or her behalf, the justice of the peace shall thereupon nominate a
person for him out of such persons so proposed as aforesaid).

8. And be it further enacted. That the said arbitrators and referees
shall meet at the time and place fixed by the justice of the peace by
•whom such referees were appointed, and shall, by inspection of the
work in regard to which the dispute may have arisen, by hearing and
examining the parties, or any other persons on their behalf, or that
attend to give evidence respecting the matters in dispute, upon oath
(which the said arbitrators and referees are hereby empowered to
administer), or otherwise, or by otherwise ascertaining the true state of
the case, in such manner as to such arbitrators and referees shall appear
necessary, proceed to determine the matter or matters in dispute
referred to them ; and the award to be made by such arbitrators and
referees shall be final and conclusive between the parties, without being
subject to review or challenge by any court or authority whatsoever.



576 TUE LAW OF MASTER AND SERVANT.

9. It shall lie lawful for any arbitrator or arbitrators, referee or
referees, and he or they are hereby authorised and re(inired, at thu
request in writing of any of the parties to issue his or tlieir summons to
any witness or Avitnesses to appear and give evidence before such ar1)i-
trator or arbitrators, referee or referees, &c. If any person so summoned to
appear as a witness as aforesaid shall not appear, &c., it shall be lawful for
any one or more of His ]\Iajesty's justices of the peace, &c., and they are
hereby authorised, &c., by warrant under the hands of any such justice or
justices to commit any such person so making default in appearing, or
appearing and refusing to give evidence, to some prison within the
jurisdiction of any such justice or justices, there to remain, without l)ail
or mainprize, for any time not exceeding two calendar inonths, nor less
than seven days, &c.

10. And be it further enacted, That in case such arbitrators and
referees so appointed cannot agree upon and decide such matter or
matters in dispute so referred as aforesaid, or shall not make and sign
their award within three days after the date of the order of such justice,
certifying their appointment, then the said arbitrators and referees shall
without delay go before tlie justice by whom they were appointed ; and,
in case of his absence or indisi)Osition, before any other of His ]\Iajesty's
justices of the peace acting in and for the county, stewartry, riding,
division, baronry, city, burgh, town, liberty, or place, and residing
nearest to the place where the meeting to settle such dispute shall have
taken place, and shall state to such justice or justices who may be
present the points in difference between them the said arbitrators and
referees, which points in difference the said justice or justices shall and
is and are hereby authorised and required to hear and determine upon
the statement of tlu^ arbitrators and referees ; and tlie said justice or
justices is and are hereby directed and required to settle and determine
the matter in dispute with all possiljle dispatch, and in all cases within
the space of two days after the expiration of the time hereby allowed to
the arbitrators and referees to make and sign their award ; and the
determination of such justice or justices shall be final and conclusive
between the parties so differing as aforesaid, without being subject
to review or challenge by any court whatsoever.

11. And be it further enacted, That if either arbitrator or referee shall
neglect or refuse to go before such justice of tlie peace in the manner
herein directed, it shall and may be lawful for such justice, after sum-
moning the arbitrators to attend him, to determine the matter or matters
in dispute, upon the statement and representation of either of the arbi-
trators who shall come before him.

12. Provided always, and be it further enacted, That no justice of the
peace, being also a master manufacturer or agent, shall act as such justice
under this Act.

13. Provided always, and be it further enacted, That as well in all
such cases of dispute as aforesaid as in all other cases, if the i)artics



ACTS RELATING TO ARBITRATION. 577

mutually agree that tlie matter in dispute sliall be arbitrated and
determined in a ditlerent mode to the one hereby prescribed, such
agreement shall be valid, and the award and determination thereon fuial
and conclusive between the parties and the same proceedings of distress,
sale, and imprisonment, as hereafter mentioned, shall be had towards en-
forcing such award, (by application to any justice of the peace of the
county, stewartry, riding, division, barony, city, town, burgh, or jjlace
■within which the parties shall reside), as are by this Act prescribed for
enforcing awards made under and by virtue of its provisions.

14. Provided always, and be it further enacted, That where any work
shall have been delivered to any workman by the agent or servant of
any master or masters, to be when finished delivered to such agent or
servant ; and also where two or more pei'sons shall carry on the business
of such manufacture as partners, in every sucli case respectively the like
proceedings shall and may be had and made against such agent, servant,
or any partner, and shall be as effectual as if the same had been had and
made against the principal, or all the partners ; and all the said persons
respectively shall obey the awai'd made thereiipon, and all such order or
orders as shall be made by tlie said justice or justices in or respecting
the matters in dispute, and shall be subject to the same proceedings and
consequences for refusing or delaying to abide by or perform the same,
as if the proceedings had been liad against tlie principal, or against all
the partners,

15. And be it further enacted. That it shall be lawful in all cases for
any master or workman, by writing under his hand, to authorize any
person to act for him in submitting to arbitration and attending arljitra-
tors or justices touching the matter of any arbitration.

16. Provided a master or masters shall become or be bankrupt, or any
assignment of his or their estate or effects shall have been made under
the said bankruptcy, or otherwise by deed or in law, the factor or trustee
upon, or the assignee or assignees of such estate or effects shall be liable
to the proceedings authorized liy this Act against the master or masters,
as fully as the master or masters was or were before the bankruptcy or
assignment, &c.

17. Where any married woman or infant under the age of twenty-
one years shall have cause of complaint in any of the cases provided for
by this Act, &c., such complaint may be lodged, and all further proceed-
ings thereupon had, by and in the name of the husband of such married
woman, and of the father, or, if dead, of the mother, or if on the death
of both parents, of any of the kindred of any such infant, or of the
surety or sureties in any indenture of apprenticeship of any such infant,
being an apprentice, or of any person nominated by such infant, if he
or she shall not have parent, kindred, or surety, &c.

18. And be it further enacted. That with every piece of work given
out by the manufacturer to a workman to be done, there shall (if both
parties are agreed) be delivere'l a note or ticket, in such form as the said



678 THE LAW OF MASTER AND SERVANT.

parties shall mutually agree upon ; and wliicli said note or ticket, in the
event of dispute between the manufacturer and workman, shall he
evidence of all matters and things mentioned therein or respecting the
same.

19. And he it further enacted, That a duplicate of every such note or
ticket shall be made and kept by the master or agent delivering the
same, which duplicate shall be evidence of all the matters and things
therein contained, in case the workman shall not produce to the arbitra-
tors, or the said justice, as the case may be, the said note or ticket so
delivered to him with the said work.

20. And be it further enacted, That it shall not be allowable to any
manufacturer, who shall have received into his possession any article
without objection made within twenty-four hours, by himself or his
clerk or foreman, afterwards to make any complaint on account of worlc
so received.

21. ProWded always, and be it further enacted. That if the parties by
and between whom the said reference shall take place as aforesaid, shall
think it expedient, or be desirous to extend the time hereby limited for
the making the award or umpirage, it shall and may be lawful for them
to extend the same accordingly by endorsement, according to the form
ia the schedule hereunto annexed, on the back of the orderof the justice
of peace, certifying the appointment of the referees, to be signed by both
of them in the presence of one or more credible witness or witnesses.

22. And be it further enacted. That the award or umpirage to be made
upon any reference demanded under this Act shall and may be drawn
nn and written at the foot or upon the back of the said order, certifying
the appointment of the referees, according to the form in the schedule
hereunto annexed.

23. And be it further enacted, That upon fulfilment of the award or
umpirage, the same shall be acknowledged by the party in whose behalf
the same was" made, by an acknowledgment at the foot of the said
award, in the form of the schedule hereunto annexed, which, with the
award, shall thereupon be delivered to the party fulfilling tlie same.

24. And be it further enacted. That if any party shall refuse or delay
to fulfil an award under this Act, for the space or term of two days after
the same shall have been reduced into writing, it shall be lawful for any
Buch justice as aforesaid, on the application of the party aggrieved, and
he is hereby refpiired by warrant under his hand according to the form
of the schedule hereunto annexed, or in some other form to the like
effect, to cause the sum and sums of money directed to be paid by any
such award to be levied by distress and sale of any goods and chattels of
the person or persons liable to pay the same, together with all costs and
charges attending such distress and sale, such sale to t;ike place within
sucli time, not exceeding five days, as the said justice shall think projier ;
and the overplus, if any, to arise by such sale, to be rendered to the
owners of the goods and chattels distrained ; and in case it shall ajipear



ACTS RELATING TO ARBITIIATION. 579

liy any return to sucli warrant tliat no sullicient distress can he readily-
had, wliich ret\irn may he in the form contained in the schedule here-
unto annexed, or in some other form to the like effect, it shall he lawful
for any such justice as aforesaid, and he is hcrehy required hy wan-ant
under his haud accordiui; to tlie form of the schedule hereunto annexed,
or in some other form to the like effect, to commit the person or persons
so liahle as aforesaid to the common gaol, or some house of correction
within his or their jurisdiction, there to remain without hail for any
term not exceeding three months.

25. " And whereas cases may occur where the recovery of such sum or
sums of money hy distress and sale of goods and chattels of the defaulter
may a])pcar to the justice or justices of the ])oace hy whom the warrant
is to he issued to he attended with conse(iuences ruinous or in an especial
manner injurious to the defaulter and his family ;" to prevent which
consequences, he it further enacted, That the said justice or justices, in
all such cases, shall withhold such warrant, and commit the defaulter to
the common gaol or some house of correction within his or their juris-
diction, there to remain without hail for any time not exceeding three
months ; such commitnu-nt to he in the form or to the effect of the form
in the schedule to this Act annexed.

26. And he it further enacted, that where any person shall he com-
mitted to prison for refusing or delaying to fulfil an award as afore-
said, and such person shall, at any time during the period of his or her
imprisonment, pay to the governor or keeper of the prison the full
amount of the sum awarded, with all reasonable exjjenses incurred
through such refusal or delay, it shall be lawful for such governor or
keeper of such prison, and he is hereby required forthwith to discharge
.such person from his custody.

27. And be it further enacted, That the justice or justices by whom any
person or persons shall be committed to prison for not appearing as a
witness, or not submitting to be examined, shall cause the warrant or
order for such commitment to be drawn up in the form or to the effect
set forth in the schedule to this Act.

28. And be it further enacted. That no appeal or certiorari shall lie
against any proceedings under this Act.

29. And be it further enacted. That no proceedings nndi-r this Act
shall be invalid for want of form.

30. (e) And be it further enacted, That tlie following and no higher
fees shall be allowed to be taken for any proceeding under tliis Act ;
(that is to say,) To the clerk of the justice or justices : for each summons,
two pence ; for every oath or affirmation, three pence ; for drawing and
entering the order, four pence ; for every warrant, six pence.

To the constable or other peace officer :^For service of summons or
order, fourpence ; for executing warrant of distress and .sale of goods,

(0 Sec 40 & 41 Vict. c. 43.



580 THE LAW OF MASTER AND SERVANT.

one sliilliug ; for aistody of goods diRtraine<l, per diem, three pence ; for
every mile ho shall travel, three pence ; for every caption, six pence.
And a table of fees, signed by the clerk to such justice or justices, shall
he hung up in every ])lace where any general or (piarter sessions, or petty
or other sessions of the peace shall he held.

31. And he it further enacted. That all costs, time, and expenses
attending the application to justices, to he made under this Act, and of
the arbitration pursuant thereon, shall be settled by the arbitrators or
arbitrator by -whom such dispute shall be settled ; and where the same
shall he determined by any justice of the peace, pursuant to this Act,
then the costs, time, and expenses aforesaid shall be settled by such
justice ; and -where the arbitrators appointed as aforesaid cannot agree as
to the costs, time, and expenses to be allowed, the same shall be settled
by the justice or justices of the peace by whom the said arbitrators were
named, and in case of his absence or indisposition, by any justice of the
peace for the same county, stewartry, riding, division, barony, city, burgh,
liberty, town, or place nearest to the place at which the arbitrators met
to settle the dispute : Provided always, that no master manufacturer,
his foreman or agent, shall in any case be allowed for costs, time or
expenses, by the said justice or justices, unless it shall appear to him or
them that the proceedings of the workmen were vexatious and
oppressive.

32. Provided always, and be it enacted, That every agreement, sub-
mission, award, ticket, matter, or thing, under and by virtue of this Act,
or relating to any other mode of arbitration as aforesaid, shall and may
be drawn up and written iipon unstamped paper.

33. (Actions to be brought within six calendar months.)

34. (In any action for anything done under this Act, the general issue
may be pleaded.)

3"). (Xotliing in this Act shall extend or be construed to extend to
repeal, abridge, annul, or make void any statute not repealed by this Act.)



SCHEDULE.

f'orm of the Award to ha written at the foot or upon the hack of the order oj
the justices of peace certifjivfj the reference.

We and \innne and descrihe the referees], the referees

apiK)inted to settle the matters in dispute between the parties within
named [or, one of the referees so appointed ; or, the

other referee appointed having failed to attend ; or, tlie justice, us the

case may he], do hereby adjudge and determine that [here set forth the
determination ; to wliich the referee or referees or justice, as the case may Je,
shall snhscrihe their names.]



ACTS RELATING TO AllIilTUATlON. 081

Form of Kiidursciatnt, cxtendiny the time limited for makiiuj the airard.
We, ;vnd , ixirties to tlie vitliiu rererciicf, do liereby

{igree to extend the same to the day of inclusive.

Witness our hands this day of . A. B.

Witness, C. D.

Form of Acknowlcdijmcnt oj fidfdment oftheAtcard to beicritten at the foot

or OH the back thereof.

I, , do hereby acknowledge that the above award hath been

i'lilhlled by , who is hereby discharged of the same.

Witness my htmd this day of

Witness, A. 1>

Form of the Oath to be administered hy the arbitrators or justice to the

2)artics and witnesses under this Act.

The evidence that you shall give before us, the arbitrators appointed

by and [tlie 2}arties'] to determine the matters in dilfer-

ence between them, under and by virtue of an Act passed in the fifth year

of the reign of King George the Fourth, intituled An Act [state the title

of this Act], shall be the truth, the whole truth, and nothing but the

truth.

So help you GOD.

Form of Comniitment of a i)erson summoned as a witness before the

Arbitrators.
Whereas proof on oath hath been made before me, one of his
majesty's justices of the peace for the county [or riding, stewartry,
division, city, burgh, liberty, town, or place] of on this

Jay of that hath been duly summoned, and iiath

neglected to appear and give evidence before and , the

arbitrators appointed by and between and , to deter-

mine the matters in dispute between them at in tlie county [or

riding, stewartry, division, city, burgh, Kberty, town, or jjlace] of
on the day of under and by virtue of an Act made in

the fifth year of the reign of his present majesty, intituled An Act [liere
set forth the title of this Act], and the said being required by me,

the said justice, to give evidence before the said arbitrators, and still
refusing so to do, therefore I, the said justice, do hereby, in pursuance of
the said Act, commit the said to the [describing the p-ison and the

house of correction] there to remain without bail or mainprize for liis [or
her] offence aforesaid, until he [or she] shall submit himself [or herself]
to be examined, and give his [or her] evidence before the said arbitrators,
touching the matters referred to them as aforesaid, or shall otherwise be
discharged by due course of law : And you the [constable or other peace
officer or officers to whom the warrant is directed] are hereby authorized



582 THE LAW OF MASTER AND SERV^VJNT.

imd rt'cjuircil to take into yoitr custody the body of the said and

liini [(,;• lier] safely to convey to the said prison [or house of correction]
and him [or her] there to deliver to the gaoler [or keeper] thereof, who is
liex-eby authorized and required to receive into his custody the body of
the Siiid , and him [or her] safely to detain and keep, pursuant

to this coniniitnient. CJiven under my hand, this day of

in the year of our Lord

[This commitment to be directed to the proper peace officer, and the
gaoler [or keeper] of the prison [or House of Correction].]

Form of JFarrant of Distress.
To the Constable of

Whereas , of , under an award made by on

the day of in the year of our Lord , pursuant to

an Act passed in the fifth year of the reign of his jiresent Majesty,
intituled an Act [state the title of this Act], is liable to pay to , of

, the sum of , and also the sum of , and the

said having refused or neglected to pay the same for the space of

two days and upwards subsequent to the making such award, these are
therefore to command you to levy the said sum of by distress

and sale of the goods and chattels of the said , and I do hereby

order and direct the goods and chattels so to be distrained to be
sold and disjjosed of within days, unless the said sum

of , for which such distress shall be made, together with the

reasonable charges of taking and keeping such distress, shall be sooner
paid ; and you are also hereby commanded to certify to me what you
shall do by virtue of this my warrant.

Given under my hand and seal at the day of

Form of the ConstahWs lleturn to the IVarrant of Distress.

I, , constable of , do hereby certify to , justice of

the peace of , that I have made diligent search for, but do not

know of, nor can find any goods and chattels of by distress and

sale whereof I may levy the sum of , jiursnant to his wariant

for that purpose.

Dated the day of , in the year of our Lord

Given under my hand this day of , in the year of our

Lord



Form of Commitment therenj)on to tlie House of Correction.

anie ) To the Constable of ,

!<?/.] J the House of Correction at



[Here name ) To the Constable of , and also to the Keejier of

the county.l ) the House



on

the day of in the year of our Lord , pursuant



ACTS UKLATING TO AIllUTliATION. 583

to an xYct ixxssod in the fifth yi^ar of the reiyn of hi.s present Majesty,
intituled An Act [state the tltk of this Act], became liable to pay
to the sum of and also the sum of for cost.-i,

time, and expenses, making together the sum of , and having

refused or neglected to pay the same for the space of two days and
upwards subsetj^uent to the making of such award, my warrant was,
according to the provisions of the said Act, duly maile and issued for
the levying the said sum of by distress and sale of the goods

and chattels of the said : and whereas it appears by the return

of , constable of , dated the day of ,

that he hath made diligent search for, but dotli not know of, nor can
find any goods and chattels of the said , by distress and sale

whereof the said sum of may be levied pursuant to my said

warrant : these are therefore to command you, the said constable
of , to apprehend the said , and convey him to the said

house of correction at aforesaid, and deliver him there to the

keeper of the said house of correction ; and these are also to command
you, the keeper of the said house of correction to receive him the
said into the said house of correction, and there keep him,

without bail or niainprize for the space of months, unless the

said sum of so ordered to be paid as aforesaid, shall be sooner

satisfied, with all reasonable expenses.

Given under mv hand and seal, at , the day of



Form of Commitmoit ichere the warrant of distress is u-itliheld.

[Here name } To the Constable of and also to the Keeper of

the county.] ( the House of Correction at

Whereas of , under an award made by on

the day in the year of our Lord , pursuant to

an Act ijassed in the fifth year of the reign of his present Majesty,
intituled an Act [state the title of this Act], became liable to pay
to the sum of and also the sum of for costs,

time, and expenses, making together the sum of , which he has

refused or neglected to pay for the space of two days and upwards
subsetiuent to the making of such award : and whereas it appears to me
that the recovery of such sum and wan-ant of distress and sale of the
goods and chattels of the said will be attended with consequences

ruinous or in an especial manner injurious to the defaulter [and his
family, if any], and I have therefore determined to withhold such



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 61 of 77)