John Macdonell.

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

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aside any judgment so given in the al)sence of the defendant, and the
execution thereupon, and may grant a new trial upon sucli terms, if any,
as it may tliink tit (///).

10. Every undertaking by way of security under the said Act may be
given to the court, or to such person as the cmirt may direct, in A\Titing
or orally ; and upon the ju-oduction of the written undertaking, or of any
note made by the clerk of the court where the undertaking was given
orally, the court may siunmon any person liable to the court or to any
surety for any sum which has become forfeited, and may make such
order therein as to the court may seem iit.

(h!) Sec 20 & 21 A'ict. c. 13.



EMPLOYERS AND WoUKMEN ACT. 041



Enfinrlii'i Judgment.

11. Any sum ailjiulL^ed Ly tin-, court to be paul under the said Act,
and any instalment or part tliereot' which has become due, and any sum
ordered by the court to be ])aid in respect of the forfeiture of any sum
under any security given under the said Act, may be recovered by
distress-warrant in tlie form in the sche<lule issued by any justice or
magistrate acting in and for tlie district for which the court was held ;
provided always, that the person liable for the payment of any such
sum shall liave been at some time served with the order of the court in
the same manner as a summons to appear to a plaint is hereby directed
to be served.

12. When an order has been made directing an apprentice to perform
his duties umler his apprenticeship, and he shall have failed to comply
therewith, no order of commitment shall be made on account of his
having so failed until he shall have been pei'sonally served with a
judgment summons.

Judgment Summons.

13. No order of commitment under " The Debtors Act, 1869," shall
be made unless a summons to appear and be examined on oath, herein-
after called a judgment-summons, shall have been personally served
upon the judgment-debtor.

14. A judgment-summons may issue although no distress-warrant has
been applied fur, and its service where made out of the district may be
proved by affidavit.

15. Every judgment-summons may be according to the form in the
schedule, and shall be served not less than two clear days before the day
on which the judgment-debtor or apprentice is required to appear,
except the judgment-debtor or apprentice is stated to be about to remove
or to be keeping out of the way to avoid service.

16. The hearing of a judgment-summons may be adjourned from time
to time.

17. Any witness may be summoned to prove the means of the judg-
ment-debtor, in the same manner as witnesses are summoned to give
evidence upon the hearing of a jdaint.

18. An order of commitment made under "The Debtors Act, 1869,"
may be according to the foini in the schedule, and shall, on whatever
day it may be issued, bear date on the day on which the order for
commitment was made, and shall continue in force for one year from
such date and no longer.

19. When an order of commitment for non-payment of money is
issued, the defendant may, at any time Viefore his body is delivered into
the custody of the gaoler, pay to the officer Imlding such order the amount
indorsed thereon as that on the iiavment of which he mav be dischariied •



C42 THE LAW OF MASTER AND SERVANT.

and on receiving sucli amount tlie oliiei'i' shall tliscliarge the defendant,
and shall forthwith pay over the amount to the elerk of the court.

20. The sum indorsed on the order of commitment as that upon
])ayment of ■which th<^irisoner may be discharged maj- be paid to the
clerk of the court from -which the commitment order was issued, or to
the gaoler in whose custody the prisoner is. AVhere it is paid to tlie
clerk he shall sign and seal a cei-tificate of such* payment, and upon
receiving such certificate by post or otherwise, the gaoler in whose
custody the prisoner shall then be shall forthwith discharge such
j)risoner. And where it is paid to the gaoler, he shall, upon payment
to him of such amount, together with costs sutticient to pay for trans-
mitting by post-office order or otherwise such amount to the court under
the order of which the prisoner was committed, sign a certificate of such
pay:uent, and discharge the prisoner, and forthwith transmit the sum so
received to the clerk of the court.

21. A certificate of payment by the jnisoner shall be according to the
form in the schedule.

22. All costs incurred by the plaintiff in endeavouring to enforce
an order shall be deemed to be due in pursuance of such order under
section 5 of " The Debtors Act, 18G!)," unless the court shall otherwise
order,

Sercice of Process.

23. Service of any summons, order, or process imder the Act or these
rules may be made by any officer duly authorised to serve summonses
■within the district in which the summons, order, or process is to be
served, and may be proved by affidavit, or by oath riva voce.

Costs.

24. The costs to be paid in the first instance by every person seeking
the assistance of the court shall be those contained in the schedule
annexed hereto.

25. The court may, in its discretion, allow any party, in lespect of
any expense he may have incurred in the employment of a solicitor,
any sum not exceeding ten shillings where the sum fdaimed exceeds
forty shillings, and not exceeding fifteen shillings where it exceeds five
pounds.

Fonns.

2('>. The forms given in the schedule shall be used, with such variations
;is may be necessary to meet the ciicumstances of each court.

29//t AtKjnst, 1877.

CAIRNS, C.



E3IPL0YEKS AND WORKMEN ACT. 643



SCHEDULE.



1.

Summons to Appear.

Emploijers and Worhiacii Ad, 1875.

In the [coimtij of . Fettij Sc.t>;ions (listrict of .]

Between A. B., Plaintiff,

[A ddress, description,']

and

C. ])., Defendant,

[Address, description.]

You are hereby summoned to appear on the day of

18 , at tlie hour of in the noon, at , before

[tu-o of such justices of the peace for the above- county as might there he\ to

answer the plaintiff, to a chxini, the particulars of -which are hereunto

annexed.

Given unde^my hand and seal this day of 18 .

J. 8. (L.S.)

To the defendant herein

Note.— (This, and all other summonses issucxl under the Employers
and AVorkmen Act, 1875, may be signed by the clerk to the justices,
where such justices shall, by a f^^eneral direction, authorise their clerks
to sign them in lieu of one of themselves). ■



2.

Summons to Witness.

Employers and IVorlcmcn Act, 1875.

In the \_connt\i of . Petty Sessions District of .]

Between A. B., Plaintiff,
and
C. D., Defendant.
You are herebj' required to attend at on , the

day of ,187 , at the hour of in the noon, to

give evidence in the above cause on behalf of the [plaintilf or defendant,
as the case may be].

Given under my hand and seal this day of 187 .

J. S. (L.8.)
to



644 THE LAW OF MASTER AND SERVANT.

3.

JODliMENT FOR PLAINTIFF.

Einployers and IJ'orknu'n Act, 1875.

Ill the [cotnidi of . Peffn Sessions District of

Between A. B., Plaintiff,
and
C. D., Defendant.
It is tins day adjudged that the plaintill" do recover against the
defendant tlie sum of £ for deht [or damages], and £ for

costs, amounting togetlier to the sum of £

And it is orth'red that the defendant do pay the same to the plaintiff
on or before the day of [or by instalments of for

every days ; the first instalment to be paid on or before the

day of 18 ] ; find if the same be not paid as ordered it

is hereby further ordered that the same be levied by distress and sale of
the goods and chattels of the said defendant.

Given under our hands and seals this day of

£ s. d.

Amount of debts or damages

Costs : — £ s. d.

Summons

Witnesses .....

This order



Total



Signatures of tivo of the Justices} J. S. (l.s.)
by whom order made. ) J. S. (L.s.)



Judgment for Defendant.

Employers and IForhnen Act, 1875.

In the [county rf , Petty Sessions District of ]

Between A. B., Plaintiff,
and
C. D., Defendant.
Upon hearing this cause this day, it is adjudged that judgment be
entered for the defendant, anil that the plaintiff do pay the sum of
£ for the defendant's costs on or before the day of

; and if the same be not paid as ordered it is hereby further



EMPLOYERS AND WORKMEN ACT. 645

ordered that the same be levied by distress and sale of tlie j,'oods and
chattels of the said plaintili".
Given iiiidi-r our hands and seals this day of , 187 .

HicjnutHrcs of tiro of the Justiroi ) J. S. (l.s.)
hy ii'hom order mcule. j J. S. (l.s.)



JroGJiENT Summons.

Employers and JVorkmen Act, 1875, and The Debtors Act, 1869.

In the [county of . Petty Sessions District of .]

Between A. B., Plaint itf,
[Address, description,]
and
C. D., Defendant,
[.4 ddi-ess, description.]
Whereas the plaintiff [or defendant] obtained an order against you the
above-named defendant [or plaintiff"] in this eourt on the day

of , 187 , for the payment of pounds, shillings,

and pence [or that you {liere set out the order made, in tlie case of

an apprentice, upon him to jierform Jiis dnties)] :
And whereas you have made default therein :

You are therefore hei-eljy summoned to appeal' ])ersonally in this
court at [place u-here court holden] on , the day of ,

18 , at the hour of in the noon * to be examined on

oath by the court toviching the means you have or have had since the
date of the order to satisfy the sum payable in pursuance of the said
order ; and also * to show cause why you should not be committed to
prison foi- such default.

Given under my hand and seal this day of , 187 .

J. S. (L.S.)

£ s. d.

■^Amount of order, and costs

Costs of distress against the goods, if any



£



Deduct



Paid into court

Instalments which were not re-
quired to have been paid be-
fore the date of the summons



646 THE LAW OF MASTER AND SERVANT.



Sum payable

Costs of this summons

Amount upon the payment of whirh no further
proceedings will l)e had until default in paynu-nt
of next instalment

Tliei)arts v:ithin asterids to he omitted where siivimoits issued against jin
a^yprentice under section (5 of Envployers and JVorhnm Act, 1875.



Order of Commitmen't.

Employers and IVorhmen Act, 1875, and The Debtors Act, 186!).

In the [county of . Petty Sessions District of .]

Between A. B., Plaintiff,
and
C. D., Defendant.
To the constable of and all other peace oflicers of the county,

and to the governor or keeper of the ['prison of the countij to vhich debtors
arc committed}.

Wliereas the plaintiff [or defendant] olitained an order against the
defendant [or plaintiff] in this court on the day of ,

18 , for the payment of £ [or, in the case of an apprentice, that

he should, &c.] :

And whereas the defendant had made default therein :
And whereas a summons was, at the instance of the jjlaintiff [irr
defendant] duly issued out of this court, by which tlie defendant [or
plaintiff] was required to appear personally at this court on the
day of , 187 ,* to be examined on oath touchin,^' the means he

had then or has had since the date of the order to satisfy the sum then
due and payable in pursuance of the order, and * to show cause why he
should not be committed to prison for such default :

And whereas, at the hearing of the said sunniions, the defendant
[or plaintiff] appeared [nr the summons was proved to have been per-
sonally and duly served] and * it has now been proved to the satisfac-
tion of the court that the defendant [or idaintiff] now lias [or has had]
since the date of the order the means to pay the sum then due and
payable in pursuance of the order, and has refused [or neglected] [or then
refused or neglected] to pay the same, and the defendant [or plaintiff] *
has shown no cause why he should not be committed to prison :

Now, therefore, it is ordered that, for such default as aforesaid, the
defendant [or plaintiff] shall be committed to prison for days^

* unless he shall sooner ])ay the sum stated below as that upon the
payment ol which he is to be discharged.*



EMPLOYERS AND WOKKMKN ACT. ()i7

These are, llicrefoiv, tn re([uin- you, tlie .said con.stal;le ami peace
officers, to take tlie tlefeiidaiit [or plaiutili'j and to deliver liim to the
<,'Overnor or keeper of tlie [prison (f/o;Y'sr( iW], and you the said j,'overnor
or keejK'r to receive the defendant [or jilaintiff] and liim safely keep in
the said prison for days from the arrest under this order, or until

he shall be sooner discharged by due course of law.

Given under oar hands and seals this [insert date of order of commitmintt]
day of ,18.

Signatures of two of the Justices bij u-ho7n ) J. S. {L.fi.)
order of committal is made. J J. S. (l.s.)

£ s. d.
*Total sum payable at the time of hearing of the

judgment-summons

Hearing of summons, cost of this order, and mileage

Total sum upon payment of which the j)risoner will

be discharged prior to conveyance to prison
If conveyed to jirison the conveyance thereto

* The parts withia astcrisLs to he omitted icliere order made binder section G
of Emiiloyers and Workmen Act, \^lf>.



7.

Certificate for the Discharge of a Prisoner from Custody.

Employers and JForkmen Act, 1875, and the Debtors Act, 18G9.

In the [county of . Petty Sessions District of ].

Between A. B., Plaintiff,
and
C. D., Defendant.

I hereby certify that the defendant [or plaintiff] who was committed
to your custody by virtue of an order of commitment under the seals of
two justices of this court, bearing date the day of ,

187 , has paid and satisfied the sum of money for the non-payment
whereof he was so committed, together with all costs due and payable
by him in respect thereof ; and that the defendant [or plaintitf] may, in
respect of such order, be f(jrthwith discharged out of your custody.

Dated this day of , 187 .

Clerk of the Court
To the Governor or Keeper of



648 THE LAW OF MASTER AKD SEllV.\2s'T.



Distress Warrant.

Employeri; and Worhnitn Act, 187').

\\\ Wm [county of . I'ettij Sessions District nf ].

Between A. B., PlaintilJ",
and
C. D., Defendant.

"Whereas at a court liolden at on the thiy of

IS , it was ordered by the conrt that Jud^'ment should be entered for
tlie plaintiff [or defendant], and that the plaintiff [or defendant] should,
pay to the defendant [or plaintiff] the sum of £ for debt [or daina<^es]
and costs [or the defendant's costs of action] on or before the day

of , [or by instalments of for every days, the first

instalment being ordered to be paid on or before the day of

18 ]; and that if the same were not paid as ordered, it was further
ordered that the same should be levied by distress and sale of the goods
and chattels of the said defendant [or plaintiff ] :

And whereas default has been made in payment according to the said
order : These are therefore to command you forthwith to levy the sum
of £ , being the amount due to the plaintifi" [or defendant] under the
said order, by distress of the goods and chattels of the plaintiff (except-
ing the wearing apparel and bedding of him or his family, and the tools
and implements of his trade, if any, to the value of five pounds), together
with the reasonable charges for taking and keeping the said distress ;
and that you do pay wliat you shall have so levied to the clerk of this
court.

Given inider my hand and seal this day of 187 .

J.S. (L.S.)

To the Constable of ,

and all other Peace Officers
in the county.

Notice. — Tlie goods and chattels are not to be sold imtil after tlie end
of five clear days next following the day on which they were .-eized,
unless they be of a perishable nature, or at tlie recpiestof the said defen-
dant [o?- plaintifi'] (7i)-

(?t) Sec Siniiniiiiy .IiiiisdiL-tioii Act of 1879, ss. 21 k 43.



EMPLOYERS AND WORKMEN ACT. (Hi)

9.

Undertakixcj in AVriting by Defendant to Perform Contra<jt.

Employers and Workmen Ad, 1875.

liii\\Q[coaiit]i of . Petty Sessions District of ].

Betwoun A. Vj., Plaiiititt',
and
C. D., Defendant.
Whereas it has been found Ly this court on the day dl' ,

187 , tliat the defendant had broken the contract for the breacli of which
he was summoned :

And whereas the court wouM have awarded to the phuntilf the muu
of £ by way of damages suffered l>y him in conse([Uence of such

breach, and would have ordered him to have paid such sum, but that
the defendant was willing to give security for the iierformance by him
of so much of the contract as remains unperformed :

Now therefore I the undersigned defendant, and we the undersigned
sureties [or the undersigned surety], do undertake that the said defen-
dant will perform so much of the said contract as remains unperfonued,
that is to say [here set out so much of the contract as remains to he 2>er-
formed] :

And I the said defendant, and we [or I] the said sureties [or surety]
hereby severally acknowledge ourselves bound to forfeit to A. B., the
plaintift", the sum of luninds and shillings, in case the said

defendant fails to j)erform what he has hereby undertaken to perform.
(Signed, icJterc not taJccn orally) C. D., Defendant.

E. F., I ^.

^ jjjburetus.

Taken before me this day of , IS .

J. S. (i..s.)
Note. — This undertakintj may he rjivcn orally, and inoved hy tlic 2>rodnc-
tion of a note of the same made at the time hy the clerk of the court.

10.

Order on an Apprentice to perform his Duties.

Employers and Workmen Act, 1875.

In the [county of . Petty Sessions District of ].

Between A. B., Plaintitf,

and

C. D., Defendant.

It is ordered that the defendant do forthwith perfomi the duties he
has contracted to perform under his apprenticeship to the plaintiff.
Given under our hands and seals this day of 18 .

Siynatures of two of the jmticcs ) J. S. (l-S.)
hy ichom order made. ) J. S. (l.s.)



650 THE LAW OF MASTER AND SERVANT.

11.

Ohdku Rescinding a Contkact of Apprenticeship.

Ill tllO [roirnt>i nf . I'vUtj ,SV.SSiO,/s District of ].

BetwiL'ii A. i>., Plaiiitiir,
and
('. D., Defendant.
It is adjudged that the [nr tins, iclioi order endorsed on deed of ay-
jn-enticeshij)] instrument of apprenticeshi}) made between the idaintilf and
defendant be rescinded, and that the plaintiff [or defendant] do jjay to
M. K. of the t^um of pounds, beini,' the whole [or a

part] of the piemiuiu paid by the said M. N. on the binding of the
defendant [or idaintiif] a.s ai)iiientice to the plaintiff [or defendant].
Given under our hands and seals this day of 18 .

Siynatures of tiro ofthejustires J J. S. (l.S.)



/*// 'ichoiii or



12.



5 oj the justices i J. ►>. (L.S.;
der made. ) J. S. (l.S.)



Order where Security given eor Performance of Contract by
AN Apprentice.

Emjjloyers and, IJ'orhiwn Act, 1S75.

In the [county of . Fetti/ Sessions JHstrict of ].

Between A. B., Plaintitf,
and
C. D., Defendant,
and
E. F., bondsman under the contract of a2)]treiiticeship
of the Defendant.

Whereas on the day of 18 it was ordered that the

defendant should forthwith perforin the duties he had contracted to
perfonii under his contract of apj)reiiticeship to the plaintiff :

And whereas it hath been made to ap])ear to the satisfaction of the
court on the oath of the plaintiff [and of (!. H. of ] that the de-

fendant has failed to comjily with the itMiuiivniciits nf the said order :

And wliereas by the said failure the delemhint hath rendered himself
liable to be CDiiimitled :

And whereas E. V. [or R. S. of ] is willing to give security

to the amount of pounds for the due performance by the defen-

dant of his duties under his said contract of api)renticeship :

Now, therefore, the court doth direct such security to be forthwith
given, and doth order that if payment of the said sum be not made on
the defendant failing to perform his contract such sum may be levied by



EMPLOYERS AND WORKMRK ACT. 651

distress of the goods and chattels of the said E. F. [or K. S.j, or an apjdi-

cation l)e made to this court for comniitnient of the said E. F. [or R. S.]
according to the provisions of this Act.

Given under our hands and seals this day of IH .

Signatures of tu-o of the just ices M- >'^- (i-.s.)

hy lohom order made. ) J. S. (l.s.)



13.

Security in Writixo for Performanck of Contract isy an
Apprentice.

Eiuployers and ll'orhnen Act, 1875.

In the [county (f . Petty Sessions District of ].

Between A. B., Plaintiff,
and
C. ])., Defendant,
and
E. F., bondsman under the contract of a] •prenticuship
of the Defendant.

Whereas (jn the day of 18 it was ordt-red that tlie

defendant should forthwith perform the duties he had contracted t(; per-
form under his contract of apprenticeship to the plaintilf :

And whereas it was made to appear to the satisfaction of the court
that the defendant had failed to comply with the requirements of the
said order :

Anil whereas by the said failure the defendant hath lendcred himself
liable to be committed :

And whereas I, E. F. [or E. 8. of ] am ^villing to and do

hereby give security to the amount of pounds fur the due per-

formance by the defendant of his duties under the said contract of ap-
prenticeship, and do hereby acknowledge myself bound to forfeit to the
said plaintilf the above sum in case the said defendant do fail to perform
the duties that have been ordered to be performed hy the court.

(Signed) E. F. or E. S.

Signed before me this day of 187 .

J. S. (L.S.)

Note. — llie security nnty be given orally, and])rond by tlie irroduction of
a note of the same made at tlie time by the cleric of the court.



Go2 THE LAW OF JfASTER AND SEKVANT.

14.

[Summons to a Bondsman for an Apprentice.

Employers and Worhnen Act, 1875.

In i\\v [county of . Petty Sessionti JJistrict oj ].

Between A. B., Plaintiff,
anil
C. D. Defendant.
To E. F. of
Take notice that you are hereby summoned to attend at on

tlie day of 18 , at o'clock in the noon,

to show cause Avhy tlie court should not, in addition to or in substitu-
tion for any order to be made against the said defendant, order you to
pay the amount of any damages wliich it may find that the plaintifl" has
suffered in consec^uenoe of the Ijreach of the cuntract of apprenticeship
made between you and the plaintiff and the defe)idant.

Given under my hand and seal this day of 18 .

J. .S. (l.s.)



15.

Order on a Bondsman for an Apprentice to pay Damages.

Employers and IForhnen Act, 1875.

■♦

In the [county of . Pdty Sesaions District of ].

Between A. B., Plaintiff,
and
C. D., Defendant,
and
E. F., bondsman under llic contract of apjn'enti^ieship
of the Defendant.

It is adjudged that the said bondsman do ])ay to tlie plaintiff, on or
Ijefore the day of 18 ? tlie sum of pounds for

damages suffered by liim in consequence of the breach of the contract of
apprenticeship made between tlie plaintiff, defendant, and the said
bondsman ; and if tlie same be not jiaid as ordered, it is hereby further
ordered that the same be levied by distress and sale of the goods and
chattels of the said bondsman.

Given under our hands and seals this day of IS .

liiijnaturcs of Uco of the justices \ J. S. (j...s.)

hy u-hom order made. \ J. S. (i-.s.)



EMPLOYERS AND WORKMEN ACT.



653



IG.

Plaint and Minutk Book.
]'Jm}ib>!ii'r.'i ami Workmen Art, 1875.





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COSTS.

For entry of every plaint, including summons tliereon

For order in writing on a plaint

For every undertaking givt-n by way of security

For judgment-sumiuoii?;, including liearing .

For warrant of distress or order of commitment

For summons to witness ....

N.B, — Where the sum claimed exceeds IL, or the sum in respect of
the non-payment of which the summons for or order of commitment or
warrimt of distress issues exceeds 11. , an additional fee of one shilling on
each fee shall be taken.



s.

1


d.



2





2





1





2





1






For mileage in serving or executing process,

and for cost of conveying to prison .
For affidavit and postage . . . .

29th Awitist, 1877.



Such reasonable cost
as may be allowed
by the Court.

CAIRNS, C.



CHAPTER XV.

THE employers' LIABILITY ACT.

The Employers' Liability Act Avas passed to undo the effect
of certain decisions noticed in Chapter XXIX., Part I. A
series of cases beginning witli Priestley v. Foivlev (a), had laid
it down that a master is not responsible to servants for the



Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 68 of 77)