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her employment (c^). The proprietor of a cab and horse
who entrusts them to a driver for the da}^ to be used at
the driver's discretion, the latter paying a fixed sum for the
cab, and all that he makes above that sum being his perqui-
site, does not stand in the relation of master to the driver ;

(c7) Chayitcr XXYII. It is difficult scrvanls in not " Inaciiig" the sewer.

to reconcile those expressions with Hold on the iiuthority of lVi(igdt v.

the remarks of Tarkc, B., in Qnar- Fox, 11 Ex. 83'2, lunl Kimball v.

onan v. Bwiiett. Compare Swfiin.ioii Oushvinn, 3 IMass. 194, that the

V. NorfA EastcrH Rail. Co. (1878) plaintiff could not recover, he heing

L. W. 3 Ex. D. 341 ; 47 L. J. Ex. a fellow-servant of the servants of

372 • 38 L. T. 201 ; 26 W. R. 413. the defendants.) See also Stevens v.

InVccordanco with Ronrkc v. White Jrmsfrong, 6 N. Y. 435. (Defendant

^fos.1 Co. is Johnson v. Boston (187r>), sent his servant to V>.'s store to get a

118, Mass. 114. (Plaintiff, in tlic em- hox which he had bought of P. Uy

i)loynicnt of T., whocinphiycd a lart,'c ]KTniission of P. the servant went to

nuiiihcr of workmen in drillin<< ami a Inf't for the hox, and lowered it

hlastin;: rocks. Plaintiff was sent by down. Throuj,di the ne<,di<,'ence of

T. to (iTill and blast rocks in a sewer the servant the box fell, and injured

which the defendants were construct- the ]ilaintiff. The Court lield that

ing ; the whole work was uiuha- the while so engaged the servant was the

general supervision of the defendants' servant of P.) But (|uery.
sut.erintendentofsi-wers and foreman; ('■) LumJqi \. G.i/r- (1853), 2 E. &

T. paid his m<>n $2-25 a-day, and had B. 21(i ; 22 L. J. (,>. 15.463. Com-

110 ])0wcr to dismiss them or give pare the remarks of Eord Westbury

orders; the defendants iMiilT. $2.45 in A'no.r v. Oijr, L. li. .'">, E. & I.

each <lay for eaeli of his men when A]i. ()75, as to a similar ambiguity in

em])loyed ; the ]ilaintiff was injnrocl "trustee."
by the negligence of the defendants'


the relation is rather that of bailor and bailee. But, looking
to the provisions of G & 7 Vict. c. 8G, ss. 10, 23, 24, 27, and 28,
the Queen's Bench Division have held that "as regards mis-
chief done by the driver, who is selected by the proprietor,
the rektion of master and servant so far exists as to render
the proprietor responsible for the acts of the driver " {/). A
railway company employed under a subcontract Messrs.
Chaplin and Home to carry goods for them. A bale delivered
to the railway company to be carried by them was stolen by
Johnson, one of Messrs. Chaplin and Home's servants. The
question arose whether he was a servant of the railway com-
pany within the 8th section of the Carriers Act, 11 Geo. IV.
& 1 "Will. IV. c. 68, wdiich says that " nothing in the Act
contained shall be deemed to protect any mail contractor,
stage coach proprietor, or other conmion carrier for hire, from
liability to answer for loss or injury whatsoever arising from
the felonious acts of any coachman, guard, book-keeper,
porter, or other servant in his employ." It cannot be
doubted that Johnson was not for all purposes the servant
of the railway company. Yet the Court of Exchequer
decided that Johnson was a "servant " within the meaning
oftheSth section. "I think," said Rolfe, B., " that a very
large construction ought to be given to these words ; they
must be taken to mean book-keepers, porters, or other per-
sons actually employed to do what the carrier has undertaken
to do " (g). A man who employs contractors is, as a rule,
not responsible for the acts of them or their servants ; but
it will be seen in a subsequent chapter that liability will be
incurred, and they will be treated as his servants if he
interfere with and direct them (A). To take another example

(/) Po)clcs V. Hidrr (1856), 6 E. In reference to the same word in the

k B. 207 ; Fcnablcs v. Smith (1877), 8th sect, of the Enilway k Canal

L. K. 2 Q. B. D. 279 ; and remarks Traffic Act of 1854, Lord Blackburn

of Grove, J., in Skcl v. Lester (1877), said in Doolan v. Midland Hail. Co.

L. R. 3 C. P. D. 126. The subject (1877). L. R. 2 H. of L. 1810, the

has been lately reviewed in King y. word "embraces sei-vants as well as

Spurr. wSee Chapter III. agents."

((/) Machu V. London ,i- S. JF. 7?. (h) Chapter XXYIII.
Co. (1848), 2 Ex. 415 ; 17 L. J. Ex.


of the same difficulty, a person may not have been properly
appointed a servant of a banking or other company, and he
could not fairly contend, as a regularly appointed servant
could, that he was entitled to a certain notice before being
discharged ; but if he were suffered to act as cashier,
manager, or otherwise, the company would not be permitted
to disclaim responsibility for his acts (i).

Subsequently it will be pointed out that for some purposes
a volunteer is treated as a servant (j). In the chapters re-
lating to masters' liabilities for the acts of servants, it will be
seen that those who de facto perform work for another, though
not under any agreement, will be treated as servants {k).
This has long been recognised. " A wife, a friend, a rela-
tion, that use to transact business for a man," says Blackstone,
" are quoad hoc his servants " (k). In other words, though the
relation of master and servant does not strictly exist, they
may bind him as his agents.

Often the difficulty in ascertaining whether a person is a
servant or not is one of fact.

Services are frequently rendered under circumstances which
leave it uncertain whether they are done in virtue of an
implied contract or out of affection and gratitude. A person
goes to stay with a relative and does work for him. A boy
is taken into a household out of charity and assists his
benefactor. A person does work for another, who has pro-
mised or is expected to leave him a legacy (/). It is not
easy to say in such cases whether or not there was an implied
contract of hiring and service. It matters not that no words
on the subject passed ; if the understanding be that one is to
do work for another and subject to his orders, the relation of
master and servant will exist. Often it is not easy to know

(i) Bank of United States v. Dan- liagc injured by dofcndant's tcaiu ; at

dridge, 2 Wlieatoii, 64. Sco also time of injury the team driven not

H. V.' Bcacall (1824), 1 C. & P. by servant of defendant, but by ])er-

457 ; Jle County j4.mirance Co. (1870), son to wliom defendatit had intrusted

L. K. 5 Ch. 288 ; and liiice on the reins ; defendant liable).
Ultra Vires, fi44. (/-O t"om. 1, 418.

(;■) Chapter XXVII. ; Booth v.Mistn- (I) See Chapter XIII.

(1835), 7 C. & r. CG (plaintiff's car-


whether the parties meant or understood what they did not
in fact express, or expressed what the}'- did not really mean.
In the man}'' cases which have arisen with respect to persons
alleged to be clerks or servants within the meaning of 24 Sc
25 Vict, c. 96, s. GS, the difficulty has been chiefly one of fact ;
the jury have been asked to say, from tlie whole circumstances
connected with the employment, whether the prisoner was a

So many are the acceptations of the word " servant," that no
definition which will include all uses of it is possible. How it
is employed in any statute can be known only by studying the
language and object of the enactment. Take, for example, the
phrase "servant and other person" in the 82 & 83 Vict. c. 14, s.
11. Tenements occupied as a house for the purposes of trade
only, or as a warehouse for the sole purpose of lodging goods,
wares, or merchandise therein, or as a shop or counting-house,
or being used as a shop or counting-house, are exempted from
inhabited house duties, " although a servant or other person
may dwell in such tenement, or part of a tenement, for the
protection thereof" Every species of servant does not
come within this exception. The object of the Legislature
in creating it must be considered. It was not intended
that under this section a counting-house or warehouse
should be used also as a dwelling-house. The respondent
in Yeiuens v, I^ocd-es (m) claimed exemption in respect
of premises used for the purpose of his trade. A clerk
in his employment at a salary of ,£loO a year lived on
the premises in order to take care of them ; he and his
wife, children, and servant occupied five rooms. The Court
of Appeal thought that the clerk, though a servant, did not
come within the Act, " It appears to me," said Lord Justice
Thesiger, "that the Legislature, in using the term 'servant,'
is using that term in the ordinary and popular sense of it ;
that is to say, not in the sense in which any clerk or manager
is called the servant of his employer, or in the sense in wliich
the judges might be said to be the servants of the Crown,

(m) (18S0) L. E. Q. B. D. 530,


but in the sense of tlie ordinary menial or domestic servant."
Yet even in this case, Lord Justice Thesiger added, if the
Commissioners had foimd as a fact that the clerk was a
servant or other person within the Act, the Court would not
have been justified in interfering with their decision. On
the other hand, in Rolfe v. ////f?e ()?), decided subsequently,
the Court thought that the Income Tax Commissioners were
justified in finding that a cashier with a salary of £200 a year,
who occupied a sitting-room and bedroom on the top storey
of the respondent's warehouses and counting-houses, and who-
slept on the premises solely as caretaker and for their pro-
tection, was "a servant or other person" within 41 Vict. c. 15,
s. 13, part 2.

(») (1881) L. i;. G Q. P.. D. 673.



The relation of master and servant may be still further
c^xplained by distinguishing it from other legal relations
which it approaches, and with which it is often confounded.

Servant and A<jcnt.

A servant is for certain pvirposes, and in certain circum-
-stances, hereafter stated, the agent of his master {a). He is
authorised to pledge the credit of his master in many cases,
and we shall find, so far as torts are concerned, that he is
treated as the agent of the master, even for acts which the
latter has prohibited, and that the master is held respon-
sible for the acts of his servant in the course of his employ-
ment. Sometimes the terms agent and servant are used,
especially in the Courts of the United States, as if inter-
changeable (6). It is, however, frequently necessary to
distinguish them. " A principal has the right," said Bram-
well, B., in 11 v. Walker (c), " to direct what the agent has
to do ; a master has not only that right, but also the right to
say how it is to be done." The question most frequently
arises with reference to the meaning of " clerk or servant
in the G8th sect, of the 2U\i & Soth Vict., c. 90. The Courts
have looked not so much to the form of remuneration as to
the (juestion whether the alleged " clerk or servant " was free

{a) Chapter XXVI. indeed, one is usually quite as exact

(b) "The two terms, ' master and as the other ; " Schouler on Domestic

servant,' and 'principal and agent,' Relation, 612. He speaks of the term

;ire frequently interchange J, as " servant " as oflensive, p. 600.

though identical in meaning, and, (c) (1858) '27 L. J. M. C. 207.


to carry out the object of the employment in tlie manner which
seemed good to him. In M. v. ]3oirers{d) the prisoner, who
was employed to collect orders for coals, was at liberty to get
orders, and receive the money as he " thought fit." Erie,
C.J., said "A person who is employed to get orders and
receive money, but who is at liberty to get those orders and
receive that money where and when he thinks proper, is not
a clerk or servant within the meaning of the statute. The
construction of the documents decides this case. Under the
first agi-eement the prisoner was a servant ; but under the
second he was at liberty to dispose of his time in the way he
thought best, and to get or abstain from getting orders on
any particular day as he might choose ; and this state of
things is inconsistent with the relation of master and

It is essential that the subject-matter and scope of each
Act in which " servant " or " agent " is found should be care-
fully considered in order to determine whether the former is
convertible with or included under the latter. The facts in
Lamb v. Aftenborough (e) showed that a clerk of a wine
merchant was authorised by his master to sign delivery
orders in his master's name, and to receive dock Avarrants in
his own, and that he was also authorised to pledge the
Avarrants for the purposes of his master's business. In many
respects obviously this servant was the agent of his master ;
but the Court of Queen's Bench decided that he was not
an agent within the Factors' Acts, 6 Geo. IV., c. J)4«, and
o & 6 Vict., c. .39, and that his master was entitled to
recover dock warrants which ho had fraudulently pledged
with a pawnbroker as security for money lent to him(/).

(d) (1866) 1 L. K. C. C. 41 ; 35 ((■) (1862) 1 15. k S. 831.

L. J. M. (J. 206; see E. v. Netjits (/) See ilistiuctious between ser-

(1873), L. R 2 C. C. 34 ; 42 L. J. vjint and agent stated in Wharton on

JI. C. 62, and tlic cases mentioned Agency, s. 20. Some of them ai)pear

in note (A) of preceding eliaiiter. laneil'ul.


Servant and Bailee.

In its widest acceptation bailment includes contracts of
hiring and service (g) ; and sometimes a bailee is loosely-
spoken of as a servant. Thus in Ward v. Macauley (li) it is
said " the carrier is considered in law as the servant of the
owner, and the possession of the servant is the possession of
the master." The two relations, however, are distinct, and it
is frequently highly important, especially in questions of
criminal law, to distinguish them. In its more limited
signification bailment is, as defined by Justice Story, "a
delivery of a thing in trust for some special object or
purpose, and upon a contract, express or implied, to conform
to the object or purpose of the trust " (i). One technical
distinction leading to important practical results must be
recognised. At common laAV a bailee, unlike a servant, was
understood to have possession of property in his charge, and
the consequence was that a bailee could not be guilty of lar-
ceny, inasmuch as there could not be a conversion, or in other
words a wrongful change of possession {/■). This has now been
altered by 24 & 25 Vict. c. 96, s. 3, which states that "who-
soever, being a bailee of any chattel, money, or valuable
security, shall fraudulently take or convert the same to his
own use or the use of any person other than the owner
thereof, although he shall not break bulk or otherwise
determine the bailment, shall be guilty of larceny {I), and
may be convicted thereof upon an indictment for larceny ;
but this section shall not extend to any offence punishable on
summary conviction." Where a drover who was employed on

(17) Storj' on Bailment, s. 423. still material ; for although in all

{h) (1791) 4 T. R. 489. such cases as the preceding one {R.

(i) Story, s. 2. v. IL'ij, 1 Den. C. C. 602 ; 2 C. &

(^•) Roscoe, Criminal Eviilouro, 9tli K. 983) tlie drover would now be

Ed. 651. The rule did not apply to pos- punishable under the 24 & 25 Yict.

session acquired by trespass or fraud ; c. 96, s. 3, yet he would only be

M. V. Rilnj (1853), 22 L. J. M. C. 48. punishable as for a simple larceny,

{I) It is pointed out in Piusscll on whereas a servant is much more

Crimes (ii. 317), that "tlie distinc- severely punishable under s. 67."

tion between a servant and bailee is


a single occasion to take pigs to L., and deliver tlieni to G., and
to bring back whatever money he received from G., the drover
being paid by the day, but at liberty to drive the cattle of
any other person, he was held not to be a servant, but a bailee,
and consequently incapable of committing larceny, unless
he had intended at the time of receiving the pigs to appro-
priate them to his own use (79i). The distinction also meets
one in considering the responsibility of a master for the negli-
gence or tortious acts of a servant. Thus, in Foiuler v. Loch {n),
the question arose whether a cabdriver was a servant or a
bailee in these circumstances : he received from a cab pro-
prietor a cab and horse on condition that at the end of the
day he should hand over 18.s'., he retaining for himself the
balance of the day's earnings ; the horse's food to be supplied
by the owner ; and the owner to have no control over the
driver after he left the yard. The horse which the cab
pi'oprietor gave was fresh from the country ; it had never
before been harnessed to a cab ; and it ran away and injured
the driver. The jury found that the horse was not reason-
ably fit to be driven in a cab, Byles, J., and Grove, J., were
of opinion that the relation between tlic master and servant
was that of bailor and bailee, and that the driver might
recover in an action against the proprietor. Willes, J., on
the other hand, thought that the relation was that of master
and servant, or that of co-adventurers, and that in the
absence of proof of personal negligence or misconduct on tlie
part of the former, the latter could not recover. It has been
laid down that, so far as the public are concerned, a cab-
driver paid in the manner above stated is to be regarded as
a servant, and that the cab proprietor will be answerable for
his negligence to third persons who are injured by the
latter. In two cases cited below (o), this conclusion was

(///) A'. V. (I(ii)tlhiiilij (1S.'5S), 8 ('. ^ tliiilthc owner liail iioriglit to control

V. fiGo ; 11. V. L'uokc (1871), L. \l. 1 tlie driver.

C. C. 295. (o) Puirh-H V. Hidcr (1856), 6 K. &

(?^) (1872), L. R. 7 C. P. 272; B. 2U7 ; 2.") L. .1. Q. B. 331 ; TcHaWrs

41 L. J. C. P. 99; 20 L. T. ■17(i : v. Undtk (1877), L. R. 2 .Q. B. D.
20 W. ]{. 072. U will be ob.servi.'d


deduced from the language of the Metropolitan Hackney
Carriage Acts (1 & 2 Will. IV. c. 22, and 6 & 7 Vict. c. 86).
But in Khuj v. Spurr {p), Grove, J., and Bowcn, J., declined
to hold, in accordance with certain dicta of Lord Campbell in
Poiules V. Hider, that these Acts necessarily created in all
cases the relation of master and servant between the owner
of the cab and the driver. " There is a great difterence,"
said Grove, J., " between this and the case where a man
hires only the cab and provides the horses himself. The
difficulty is really not in the facts of Poides v. Hider, but in
the language used by the judges."

Sale and Contracts of t'iervice.

The points of resemblance between sale and certain con-
tracts of work or labour or hiring and service are consider-
able. They attracted the attention of the Roman jurists,
and several passages in Gaius, the Institutes, and the Digest
deal with them. In the Institutes the following case is put
to clear up the difficult}^ which arises when materials as well
as labour are supplied by the artificer : " Suppose Titius
agrees with a goldsmith that the latter shall make with his
own gold rings of a specified weight and size for ten aurei, is
the contract one of sale or hire ? Cassius says that there is
a contract of sale of the materials and of hiring of the work ;
but it has been decided that it is only a case of sale. If
Titius had given his own gold, and a price had been fixed for
the work, of course the contract must have been locatio
condiict'io " {q). The test, in short, was. Who furnished the
material ? If the workman did so, then the contract was one
of sale ; if not the workman, the contract was one of hiring
and service. This test, however, did not apply to cases in
which the cmj^loyer furnished one and the workman another

279 ; 46 L. J. Q. B. 470 ; 36 L. T. {q) iii. lit. 24, s. 4 ; Gains, iii., 146;

509 ; 25 W. R. 584. Ditr. 19, 2, 2 ; Vangerow, Lrhrbnch

(p) (1881) L. R. 8 Q. B. D, 104 ; dcr randrktrn, s. 632 ; Lauicnt, 26tk

51 L. J. Q. B. 105 J 45 L, T. 7tJ9. vol., p. 7 ; Pothier, Louage, 1 c. 1.


part of the material ; there the rule was accessorium sequihcr
principale (r). Nor was the test strictly applied in other
cases ; e.g., an architect, who agreed to erect a building, and
find the materials, was said to have entered into a contract of
hiring and letting, because he did not sell the soil on which
the house stood, and to which it was an accessory (.s).

The question possesses importance in English law for
several reasons. The l7th sect, of the Statute of Frauds
states that " no contract for the sale of any goods, wares,
or merchandises, for the price of £10 sterling, or up-
wards, shall be allowed to be good except the buyer shall
accept part of the goods so sold, and actually receive the
same, or give something in earnest to bind the bargain, or in
part payment, or that some note or memorandum in writing
of the said bargain be made and signed by the parties to be
charged by such contract, or their agents thereunto lawfully
authorised." Doubts having arisen in consequence of a series
of decisions, beginning with Toiuers v. Osborne (t) in 1724, as to
whether this section extended to executory contracts— that
is, contracts for future and not immediate delivery of goods —
the Legislature passed the 9 Geo. IV. c. 14 (Lord Tenterden's
Act) which stated (sect. 7) that the provisions of the I7th
sect. " shall extend to all contracts for the sale of goods of
the value of £10 sterling and upwards, notwithstanding the
goods may be intended to be delivered at some future time,
or may not at the time of such contract be actually made,
procured, or provided, or fit or ready for delivery, or some
act may be requisite for the making or completing thereof,
or rendering the same fit for delivery." In consequence of
these enactments, it is often necessary to ascertain whether
a contract is for the sale of goods or for work and labour.
The question has been the subject of much controversy.
In Atkinson v. Bell (u), it was held that a contract for the
manufacture and delivery of a machine was within the

(r) Story on Bailment, 24 7, Domat, (/) 1 Str. 506.

l,tit. 4, s:?. («) (1828) 8 15. & C. 277.

{s) Doiiiat, tit. 4, s. 7.


statute. In Clay v. Yates (x) — an action by a printer who
bad verbally agreed with the defenJaut to find paper for
and print oOO copies of a treatise called " Military Tactics '*
at so much a sheet, and who declined to print the introduc-
tion, which he discovered contained libellous matter — the
question arose, whether the contract was [a contract for sale
of goods within the 17th sect, of the Statute of Frauds, as
extended by the 9 Geo. IV. c. 14, s. 7. The Court was of
opinion that it was not within the statute. In his judg-
ment, Pollock, C.B., observed, that in his view " the true
criterion is, whether work is the essence of the contract, or
whether it is the materials supplied. My impression is, that
in the case of a work of art, whether in gold, silver, marble,
or plaster, where the application of skill and labour is of the
highest description, and the material is of no importance as
compared with the labour, the price may be recovered as
work, labour, and materials." This test has not been
adhered to. In Lee v. Grifin (jj), which was an action by
a dentist to recover the price of two sets of teeth, this test
was rejected ; the correctness of the decision in Atkinson
V. Bell was affirmed ; and the true criterion was thus
stated by Blackburn, J. : " If the contract be such that,
when carried out, it woidd result in the sale of a chattel, the
party cannot sue for work and labour ; but, if the result
of the contract is that the party has done work and labour
Avhich ends in nothing that can become tho subject of a
sale, the party cannot sue for goods sold and delivered."
This criterion would place among contracts for work and
labour such contracts as those brought before the Court in
Clark V. Mmnfovd {z) (a farrier employed professionall}^ and
supplying medicine), and in Grafton v. Arinitage («) (a
machinist employed by an inventor to make experiments, the

Online LibraryJohn MacdonellThe law of master and servant. Part I.--Common law. Part II.-- Statute law → online text (page 8 of 77)