John Macdonell.

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

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damaging materials.)

L'^pon a complaint under 20 Geo.
II., c. 19, by an artificer for wages
due by his employer, the justices
were at liberty to take into account
the ((uality of the work, and to make,
a deduction from the wages for bad
workmanship. Sliarp v. JIainsworth
(1862), 32 L. J. M. C. 33.

{d) Under this .section the Scotch
Courts have held that it is compe-
tent to disregard arbitration clau.ses
in contracts of service. Wi/stin v.
Glasgow Tranucaijs Co. (1878), 5 K.
981 ; (j'/d.'iguw Tramicdi/ Co. v.
Dfm2>snii (1877), 3 Coup. 440 ;
but see London I'mimrai/s Co. v.
Bailcij (1877), L. li. 3 Q. B. D.
127.



EMI'LOVKUS AND AVOUKIMEN ACT. G33

The security shall be an umluitakiiij,' by tlie defendant and f)ne or
more surety or sureties tliat tlie defendant will jiL-rl'nrni liis
contract, subject on non-perl'orniance to tlie payment of a
sum to be specified in the undiutaking.

Any sum paid by a surety on behalf of a defendant in respect of a
security under this Act, together with all costs incurred Ijy
such surety in respect of such security, shall be deemed to
be a debt due to him from the defendant ; and Avhere such
security has been given in or under the direction of a court
of summary jurisdiction, that court may order payment to
the surety of the sum which has so become due to hiiu
from the defendant.

Court of Suinmarii JtiriaUctioi.

4. A dispiite under this Act lietween an employer and a workman
may be heard and determined by a court of summary jurisdiction, and
such court, for the purposes of this Act, shall be deemed to be a court
of civil jurisdiction, and in a proceeding in relation to any such dispute
the court may order payment of any sum which it may find to be due
as wages, or ilamages, or otherwise, and may exercise all or any of the
powers by this Act conferred on a county court : provided that in
any proceeding in relation to any such dispute the court of summary
jurisdiction —

(1.) Shall not exercise any jurisdiction where the amount claimed
exceeds ten pounds ; and

(2.) Shall not make an order for the payment of any sum ex-
ceeding ten pounds, exclusive of the costs incurred in the
case ; and

(3.) Shall not require security to an amount exceeding ten pounds
from any defendant or his surety or sureties.

5. Any dispute between an apprentice to whom this Act applies and
his master, arising out of or incidental to their relation as such (e) (which
dispute is hereinafter referred to as a dispute under this Act), may be
heard and determined Ijy a court of summary jurisdiction.

G. In a proceeding before a court of summary jurisdiction in relation
to a dispute under this Act between a master and an apprentice, the court
shall have the same powers as if the dis^jute were between an employer
and a workman, and the master were the employer and the apprentice
the workman, and the instrument of apprenticeship a contract between
an employer and a workman, and shall also have the following powers :
(1.) It may make an order directing the apprentice to perform his
duties under the apprenticeship ; and,

(c) Under i Geo. IV. c. 34, s. 2, master and apprentice had ceased ;
magistrates had jurisdiction, thougli Ji. v. Frond (1867), L. R. 1 0. C. K.
summons taken out after relation of 71 ; 3t3 L. J. M. C. tJ2.



684 THE LAW OF MASTER AND SERVANT.

(2.) If it rescinds the instruiiient of apprenticeship it may, if it

thinks it is just so to do, order the whoh^ or any part of

tlie premium paid on the binding of the apprentice to be

repaid.

"Where an order is made directing an apprentice to perform his duties

under the apprenticeship, the court may, from time to time, if satisfied

after the exjnration of not less than one month from the date of the

order tliat the apprentice has failed to comply therewith, order him to

be imprisoned for a period not exceeding fourteen days.

7. In a proceeding before a court of summary jurisdiction in relation
to a dispute under this Act between a master and an apprentice, if there
is any person liable, under the instrument of apprenticeship, for the
good conduct of the apprentice, that person may, if the court so direct,
be summoned in like manner as if he were the defendant in such pro-
ceeding to attend on the hearing of the proceeding, and the court may,
in addition to or in substitution for any order which the court is autho-
rised to make against the apprentice, order the person so summoned
to pay damages for any breach of the contract of apprenticeship to an
amount not exceeding the limit (if any) to which he is liable under the
instrument of apprenticeship.

Tlie court may, if the person so summoned, or any other person, is
willing to give security to the satisfaction of the court for the perform-
ance by the apprentice of his contract of apprenticeship, accept such
security instead of or in mitigation of any punishment which it is
authorised to inflict upon the apprentice.

Part II.

Procedure.

8. A person may give security under this Act in a county court or
court of summary jurisdiction by an oral or written acknowledgment in
orunder the direction of the court of the undertaking or condition by
which and the sum for which he is bound, in such manner and form as
may lie prescribed l)y any rule for the time being in iV)rce, and in any
case Avhere security is so given, tlie court in or under the direction of which
it is given may order payment of any sum A\hicli may become due in
pursuance of such security.

The liord Chancellor may at any time after the passing of this Act,
and from time to time make, and Avhen made, rescind, alter, and add to
rules with respect to giving security under this Act.

9. Any dispute or matter in respect of which jurisdiction is given by
this Act to a court of summary jurisdiction shall be deemed to be a
matter on which that court has authority by law to make an order on
complaint in pursuance of tlie Summary Jurisdiction Act (/), but shall

(/■) 11 ^ 12 Vict. c. 43, and 42 L 43 Vict. c. 4i>.



E:\irLOYERS AND AVOKKMEN ACT. (3*^")

not be deemecl to be a criminal proceeding ; and all powers by tliis Act
conferred on a court of summary jurisdiction shall be deemed to be in
addition to and not in derogation of any powers conferred on it by the
Summary Jurisdiction Act, except that a warrant shall not be issued
under that Act for apprehending any person other than an apiirentice
for failing to appear to answer a complaint in any proceeding under tins
Act, and tliat an order made by a court of summary jurisdiction under
this Act for the payment of any money shall not l)e enforced by imprison-
ment except in the manner and under the conditions by this Act provided ;
and no goods or chattels shall be taken under a distress ordered by a
court of sunmiary jurisdiction which might not be taken under an
execution issued by a county court.

A court of summary jurisdiction may direct any sum of money,
for the payment of which it makes an order under this Act, to be ])aid by
instalments, and may from time to time I'escind or vary such order.

Anj' sum payable by any j)erson nnder the order of a court of
summary jurisdiction in pursuance of this Act, shall be deemed to
be a del)t due from him in pursuance of a judgment of a competent
court within the meaning of the fifth section of the Debtors Act,
1869, and may be enforced accordingly [g) ; and as regards any such
debt a court of summary jurisdiction shall be deemed to be a court
within the meaning of the said section.

The Lord Chancellor may at any time after the passing of this Act,
and from time to time make, and when made, rescind, alter, and add to,
rules for carrying into effect the jurisdiction by this Act given to a court
of summary jurisdiction, and in particular for the purpose of regulating
the costs of anj- proceedings in a court of summary jurisdiction, with
power to 2irovide that the same shall not exceed the costs whicli would
in a similar case be incurred in a county court, and any rules so made,
in so far as they relate to the exercise of jurisdiction under the said fifth
section of the Debtors Act, 1869, shall be deemed to be prescribed rules
within the meaning of the said section.

Part III.

Definitions foul Miscellaneous.

Definitions.
10. In this Act—

The expression " workman " does not include a domestic or menial
servant, but save as aforesaid, means any person who, being a labourer,

(g) In Cutler V. Turner (^187 i), u. for breach of contract of service,

R. 9 Q. B. 502 ; 43 L. J. M. C. though the appelhint had been

124 ; 30 L. T. 706 ; 22 W. R. 840, previously ordered to fulfil the same

the Court held there was a right contract, and to be imiirisoned for

under the repealed blaster and ISer- not doing so. See Evans v. Wills

vaut Act, 1867 (30 &31 Vict. c. 141), (1876), 45 L. J. C. T. 420.
to recover a sum as compensation



636



THE LXIY OF MASTER AND SERVANT.



Servant iu husbandry, journeyman, artilicer, handicraftsman, miner, or
otherwise eni^^ai^'ed in manual Ldjour, whether under tlie a.Lje of twenty-
one years or above that age, has entered into or works under a contract
■vvitli an employer, wlietlier the contract be made before or after the glass-
ing of this Act, be express or implied, oral or in writing {h), and l)e a con-
tract of service or a contract pei-sonally to execute any work or labour (i).



(h) This does away with the effect
oi £a)ik-s V. Crosslands (1874), 10 L.
R. Q. B. 97 ; U L. J. M. C. 8 ; 32
L. T. N. S. 226 ; 23 W. R. 414. But
the section does not atlect the Statute
of Frauds.

Under the Master and Servant Act
of 1867, it was held that a married
woman could not enter into a con-
tract within the meaning of the Act ;
Tomkinsoii v. West (1875), 32 L. T. N.
S. 462. But see the MarriedAVomeu's
Property Act of 1882, sec. 1 (2).

(0 See Grainger v. Ayiislcy
note («), wliere Lindley, J., observes :
"What the exact meaning of the
distinction between ' contract of ser-
vice ' and ' contract personally to exe-
cute any work or labour ' may be is
not quite easy to see. The words
may refer to a contract to serve,
say for a month, as distinguished
from a ' contract ' to execute any
work or labour, say to dig a drain.
That may or may not be the dis-
tinction. ' Manual labour ' is the key-
note to it, and, if so, the ajipellants
are within it." Lopes, J., observed,
in the same case : "I should say
that a contract of service is when a
man is employed, say, as farm
labourer, for three months or one
year, and that the other words,
' contract personally to execute any
work or labour,' apply to ca.ses where
a man is employed to do any
specific work or labour." Assist-
ance in construing this section
may be obtained from the chief
decisions under the repealed Act 4
George IV., c. 34, which applied to
any servant in husliandry, or "any
artificer, calico printer, handicrafts-
man, nnner, collier, keidman, pit-
man, glassman, ])otter, labourer, or
other person." It did not contain
the words contract " juTsoiially to
execute any work or labour," or tliiir
equivalent ; and the Courts reipunKl
proof of service, or of a contract to
serve. AVrrnix tiik Statutk (4



Geo. IV. c. 34). Ex 2)arte Ormcrod
(1844), 13 L. J. N. S. M. C. 73 ;
1 D. & L. 82.5. (A designer who
contracted to serve a calico printer
for a term of years, and Avliose duty
it was to draw patterns, to be after-
wards engraved on copper rollers,
" an artificer.") In re Bailey (1854),
3 E. & B. 607 ; 23 L. J. N. S.
]\I. C. 161. (Contract to serve as
a collier until a month's notice on
either side ; wages to be Lv. \Qd.
per ton of coals, paid monthly ;
evidence of obligation to serve per-
sonally.) Exitarlc Gordon (1855), 25
L. J. N. S. M. C. 12 ; 3 W. R. 568.
(A journeyman tailor working with
others for a master tailor on the
premises of the latter ; paid at a certain
price per garment. The contract did
not extend beyond the job, but,
while executing it, the former was
bound to work exclusively for his
employer.) Wilhtt v. Boo'.c (1860),
30 L. J. N. S. M. C. 6 ; 6 H. & N.
26. (B., a potter, engaged "W. to
work for liim as a biscuit oveu-
])lacer, at daily wages for a year. By
another agreement of the same date,
B. en,t,'aged IJ. to work for liim by
liieee-work, ibr the same time,
us biscuit oven- fireman. R. paid W.
his wages out of the amount earned
by R. for piece-work. A con-
tract of master and servant subsisted
between \\. and "\V., notwithstanding
the fact that payments of wages were
nuide to W. bv K.) Laurence v. 2'odd
(1803), 14 C. B. N. S. 554 ; 32 L. J.
M. C. 238. (T., with six other
artisans, agreed under a written con-
tract to complete an iron ship ; they
were to work exclusively for the ap-
pellant, but were at liberty to employ
skilh'd and unskilled workmen to
assist them.) W/iifeley v. Armitage
(1864), 13 W. K. 144. (A .stulf-
linisher of Italian goods, who worked
manually for weekly wages and a com-
mission, but whodiiected other work-
men.) Not within tiu; Act. —



EMPLOYERS AND AVORKMEN ACT. 037

The expression "the Smnmary Jurisdiction Act" means the A(;t of
the session of the eleventh and twell'tli years of the reign of her present
Majesty, cliapter forty-three, intituh-d " An Act to facilitate the per-
formance of the duties of justices of the ]ieace out of sessions within
England and Wales with respect to summary convictions and orders,"
inclusive of any Acts amending tlie same.

The expression " court of summary jurisdiction" means —

(1.) As respects the city of London, the Lord Mayor or any alder-
man of the said city sitting at the Mansion House or Guildhall
justice room ; and
(2.) As respects any police court division in the metropolitan police
district, any metropolitan police magistrate sitting at the
police court for that division ; and
(3.) As respects any city, town, liberty, borough, ]>lace, or district
for which a stipendiary magistrate is for the time being
acting, such stipendiary magistrate sitting at a police court or
other place appointed in that behalf ; and
(4.) Elsewhere any justice or justices of the peace to whom jurisdic-
tion is given bj^ the Summary Jurisdiction Act : ])rovided
that, as respects any case within the cognizance of such
justice or justices as last aforesaid, a complaint under this
Act shall be heard and determined and an order for im-
prisonment made l>y two or more justices of the peace in
petty sessions sitting at some place appointed for hoLling
petty sessions.
Nothing in this section contained shall restrict the jurisdiction of the
Lord Mayor or any alderman of the city of London, or of any metro-
politan police or stipendary magistrate in respect of any act or jurisdiction
which may now be done or exercised by him out of court.

Hardy v. nylc (1829\ 9 11 & C. 603. though hired for less time than a
(^Contract to weave certain pieces of year), or between masters and mis-
silk goods.) Lancaster v. Greaves tre.sses and artificers, handicrafts-
(1829), 9 B. &C. 628. (A. contracted men, miners, colHers, keelmcn, i)it-
to build a wall for a certain price, and men, glassmen, potters, and other
within a certain time.) E.c parte John- labourers emjiloyed for any certain
s<o?i(;(1839), 7 Dow. 702. (A contract time or in anv other manner), it
to "print certain pieces of woollen was held that a labourer employed to
cotton goods.") JJavics v. Berwick "dig and stcan a well" for cattle
(1861), 3 E. & E. 549 ; 30 L. J. M. C. who'was to be paid by the foot, and who
8-t. (A person engaged in keeping the em]iloyed another to assist him, was
accounts of a farm, setting the men within' the Act. Loirthcr v. Radnor
to work, and lending a helping hand (1806), 8 East, 113. So in Brarawcll
when wanted, &c., not a "servant in v. Pennick (1827). 7 V>. k C. 536, a
husbandry," or "other person."') person emploved by an attorney' to
Under the repealed 20 Geo. II. c. 19 keep possession of goods seized uiidcr
(which gave jurisdiction to justices afi.fa. In E.c parte Htiqhr.s ClShi'^
in disputes between masters and mis- 23 L. J. N. S. ]M. C. 138, a dairv-
tresses, and servants in husbandry, maid at a farm, who had also to keep
who shall be hired for one year or house and cook for men-servants was
longer (extended by 31 Geo. 11. c. held to be within the Act. '
11, s. 3, to all servants in husbandry.



638



THE LAW OF MASTER AND SERVANT.



11. Ill tlie case of a cliiM, youni,' iici'sf)ii, or woman subject to the
provisions of tlie Factory Acts, 1833 to 1874 (/.-), any forfeiture on the
ground of absence or leaving work shall not be deducted from or set off
against a claim for wages or other sum due for work done before such
absence (ir leaving work, excejjt to the auKJunt of tlie damage (if any)
which tile em])l()yer may have sustained by reason of such absence or
leaving work (/).

A2)plication.

12. This Act in so far as it relates to apprentices shall apply only to an
apprentice to the business of a workman as defined by this Act ui^on
whose binding either no premium is paid, or the premium (if any) paid



■ {k) These Acts are repealed.

(I) See as to forfeiture of wages the
following cases : Wahh v. JVttlh'tj
mid another (IS7 4), L. R. 9 Q. B. 367;
43 L. J. Q. B. 102. (Plaintiff, a
weaver, and weekly servant, whose
wages depended upon the number of
pieces which he wove. The wages were
ascertained at noon on Thursday, and
paid next Saturday. The rules under
which he worked reipiired fourteen
days' notice before leaving ; and
persons leaving without notice were
to forfeit wages due. I5s. were ascer-
tained as due on Thursday, April 2.')tli,
1872, at noon ; the plaiutilV woiked
on tlie 26th, and earned 7.s., and
then left without notice. Held that
thei)laintiirhad forfeited thel.o.s'. aiul
7.S-. JFillis V. Thorp (1875), L. K.
10 Q. B. 383 ; 41 L. J. q. B. 137.
(See Hosiery Manufacture (Wages)
Act, 1874, and p. 384.) Sit tinders v.
jniifllc (lS7tJ), 33 L. T. N. S. 816 ;
24 W. It. 406. (Plaintiff hired by
the week ; his wages 7d. an hour,
pavalile every Saturday at noon. The
full week consisted of fifty-four and a
lialf hours, ending at 5.30 p.m. on
Friday. Overtime i)aid at the same
rate. Engagement determinal)l(' by a
week's notice on either side. Plaiutilf
left without notice on Friday at noon
before the week had ended. He had
worked fifty-sevi'U hours, including
overtime, since the previous Friday.
Held that the plaintilf coidd not
recover wages for current week on tlie
ground that he was engaged by the
week, though his wages were coni-
imted by the hour.) Sec also lUillini
V. Thovqjson, L. K. 4 Q. B. 367 ;
Grc'jsony. JVntsoa (1876), 34 L. T. N.



S. 143. (A factory winder, paid on
Saturday for the sets which she
had wound off ilmiiig the preceding
week, ending Wednesday night,
absented herself from work on
Saturday and Monday, after work-
ing Thursday and Friday, and doing
work to the value of '3s. 7d., and did
not return. By one of the rules of
the factory, fourteen days' notice was
recjuired, and all persons leaving
without notice were to forfeit tJie
whole of the wages to which they
would otherwise be entitled. The
County Court Jiulge assessed the
damages at 3s., and found that the
hiring was a weekly hiring ; held
that there were no wages or sum due,
the hiring being weekly, and the
servant having left without notice.)
Warhurlon v. Ilniivorth (1880), L.
11. 6 (,). B. D. 1 ; 50 L. J. Q. B. 137.
(A factory weaver, paid by the piece,
all work being booked u]) at three
o'clock on Wednesday afternoon in
each week, and paid tor on Saturday.
The cuts which she l.ad completed
were, in accordance with the practice
of the factoi-y, booked on Wednesday ;
the value of the cuts, 13.s'. iiK She
returned to her work on Wednesday
for a iiuarter of an horir, and then
left without giving notice. B}' the
lulcs of the factory, fourteen days'
notice was necessary, on pain of
forfeiture of wages. The justices
found that the hiring was weekly,
liut the Court of A})peal was of
o]iini(in that there was not a weekly
liiring; that a sum became <lueas each
](i('ce was finislicd ; and that, as there
was no damage, the appellant was eu-
titlcil to recover in a claim for wages.)



EMPLOYERS AND WORKMKN ACT. 039

does not excceil twonty-fivt- imuhkIs, and to an ajiiirentiro ])ound under the
provisions of the Acts relating to tlie relief of the po(jr.

Savincj Clause.

13. Nothing,' in this Act shall take away or abridge any local or special
jurisdiction touching apprentices.

This Act shall not apply to seamen or to apprentices to the sea
service.

[Section 14 extends the Act to Scothuid.]

[Section 15 extends the Act to Ireland.]



RULES OF 1877 UNDER " THE EMPLOYERS AND WORK-
MEN ACT, 1875."

The rules made under the powers contained in " The Employers and
Workmen Act, 1875," and which are now in use in courts of summary
jurisdiction in England, shall, on and from the 1st day of November
1877, cease to be used, and fi'om such day there shall be used in lieu
thereof, the following rules : —

1. A person desirous to enter an action in a court of summary juris-
diction in England under " The Employers and Workmen Actj 1875,"
shall deliver to the clerk of the court particulars in writing of his cause
of action, and the clerk of the court shall enter in a book to be kept for
this purpose in his office a plaint in writing, stating the names, addresses
and descriptions of the parties, and the substance of the action intended'
to be brought ; and thereupon a summons to appear to the plaint shall
be issued according to the form in the schedule, and a co]iy thereof be
served in the manner hereinafter provided, not less than four clear days
before the return-day of the summons ; and no misnomer or inaccurate
description of any person or place in any such plaint or sunnnons shall
vitiate the same, so that the person or place be therein described so as to
be commonly known.

2. The particulars shall lie annexed to and be deen;ed part of the
summons.

3. Such summons may issue in any district in whicli the defendiuit
or one of the defendants dwelt or carried on his business or was em-
ployed at the time the cause of action arose, or in which he or one of
them happens to be at the time of the entiy of the plaint.

4. Service of a summons to appear \o a plaint may be made by
serving a copy of the same personally upon the defendant, or by leavin'^
sucli copy with some person, apparently sixteen years old, at the house
or place of dwelling or place of business or of employment of the defen-



640 THE LAW OF MASTER AND SERVANT.

dant, or of one of the defendants, or at the oliice of his or their employer
for the time being.

JFitnesses.

5. Summonses to ^vitnesses shall be granted to t'ither party on ajtpli-
cation and payment of the fees for the issuing and service of the same,
and of the proper amount of conduct money.

Ilearintj.

6. A defendant shall not, except by leave of the court, on such terms
as to it may seem fit, be permitted to set up against the claims of the
plaintiff any set-off or counter-claim, unless he shall have served, or
cause to be served, by registered post letter or otherwise, two clear days
at least before the return day, a notice directed to the plaintiff at his
address as mentioned in the summons, stating his intention to rely iipon
such set-off or counter-claim as a defence to the action, and setting forth
the particulars of such set-oft' or counter-claim.

7. Where service of any notice is made hy post, it shall, unless the
contrary be i)roved, be deemed to have been made on the day upon
•whicli the letter Avould have been delivered in the ordinary course of
l)Ost.

8. If upon the return-day of any summons, or at any continuation or
adjournment of the court, the jjlaintift" shall not appear, the cause may
be struck out, and the court may award to the defi-ndaut, by way of costs
and satisfaction for his attendance, such sum as it in its discretion shall
think fit ; but the plaintiff may bring a fresh action in respect of the
same cause of complaint.

9. If on the day named in the summons, or at any continuation or ad-
journment of the court, the defendant shall not appear, or sufficiently
excuse his absence, or shall neglect to answer when called in court, the
court, upon due proof of service of the summons, may either adjourn the
cause from time to time or hear it ex 'parte, and the judgment thereujion
shall be as A'alid as if botli parties had attended ; provided that the
court in any such case, at the same or any subse([uent court, may set



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