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former furnishing the materials), and contracts for making
chattels and fixing them to the freehold (6).

{x) (1856) 1 H. & N. 73. C. P. 20.

\y) (1861) 1 B. & S. 272. {h) In Benjamin on Sale, 2nd e.l.,

{z) (1811) 3 C;imp. 37. p. Si, the rule is thus stated : "If

(a) (1845) 2 C. B. 336 ; 15 L. J. the contract is intended to result in



60 THE LAW OF MASTER AND SERVANT.



Servant and Contractor.

The distinction between servant and contractor is, in
theory, clear. It is recognised in Rapsoii v. Cahitt (c),
Reedie v. London cC- ]\\ W. R. Co. (d), Overton v. Free-
man{e), Peacliey v. Roidand (/), and many other cases, and
important consequences hang upon it. Speaking generally, it
may be said that if a person who is employed to execute work
exercises an independent employment, and is not subject to
control — if, e.g., a tradesman is called in by a householder to
<lo a certain job in the way which seems best to the former —
he is a contractor not a servant. Probably the distinction
cannot be put more clearly than it was by Lord Justice
Brett in explaining the law to the Select Committee on
Employers' Liability. " If you were to contract with a
person that he and his servants should do all your work in
the way you should direct his servants to do it, they are
your servants ; that is only a different mode of paying them ;
but if you contract that he and his servants should do the
work in the way he thinks best, then he is a contractor" (jj).
Clear though the distinction appears, it is often, in practice,
drawn with difficulty. The two relations approximate. In
<)ur complicated modern society, it may not be ,' easy to
<letermine whether a person is a contractor or servant ; and
one who is the former will be treated for certain purposes as
if he were the latter in the event of his being controlled and
directed by the former (/<.).



transferring for a jiricc from 13. to A. Bankrupt Ijaws, p. S.

a chattel in which A. had no jire- (r) (1842) 9 i\l. .1 W. 710 ; C Jur.

vious ])ropcrt}', it is a contract for (jO(5.

the sale of a chattel." A .similar {il) (1849) 4 E.k. 244.

question arose as to the words " living {i) (1852) 11 C. 15. 867; 16 Jur.

by buying ami .selling" in 21 James 1. 21 L. J. C. P. 52 ; 3 C. & K. 4i).

c. 19, s. 2, ami 6 Geo. IV. c. 16, s. 2. (/) {18.'>3) 13 ('. B. 182.

Under the.se statutes the Courts held (;/) 1877, vol. x. ]). 123.

tliat a man who sold stones from a (li) W(n)d (AFaster & .Servant, p.

(juarry on his own estate, or bought 601) thus ilistingui.shes the two rehi-

a coal mine, and worked it, and sold lions : " Wlien a ]ierson lets out

the coals, did not come within the work to another to bi; dune by him,

above words ; Montagu and Gregg's such per.son to Jurnish tlie labour,



HIRING AND SKRVICE AND SIMILAR CONTRACTS. Gl



Servant and Aiyprentice.

Tl)(! distinction between servant and apprentice is of less
importance than it was before the repeal of the 5 Eliz. c. 4,
s. 5, when apprenticeship was compulsory. That statute
made it wrongful for "any person or persons, other than
such as now do lawfully use or exercise any art, mystery, or
manual occupation, to set up, occupy, use, or exercise any
craft, mystery, or occupation now used or occupied within
the realm of England or "Wales, except he shall have been
brought up therein seven years at the least as an appren-
tice, in manner and form abovesaid." This was extended
to other trades than those mentioned in the Act ; and the
law remained so until 1S14 (j). It is still, however, occa-
sionally necessary — for example, with reference to stamps —
to determine whether a contract is one of apprenticeship or
hiring and service, the rights and duties under the two con-
tracts not being in all respects the same {h). In some of the
early settlement cases in which the question was considered
whether a person had obtained a settlement by contract of
service for a year — for example, in R. v. Boltun {I) — it was
laid down that a contract of apprenticeship did not exist
unless the word apprentice was used ; but at all events,
since R. v. Mounisorrcl {in) this has not been held essen-
tial. " No technical words," said Lord Kenyon in Rex w
Rainham {n), "are necessary to constitute the relation of



and the oontractee reservinpf no con- Sadler r. Henloch (IS'lo), 4 E. & ]>.

trol over the work or workmen, the 570, and Sproul v. llemmimju-ay, 1-i

relation of contractor and eontractee Pick. 1.

exists, and not that of master and (() 54 Geo. III. c. 96. Sec remarks^
servant." (Action against secretary oi ieaacl, '^\.\{.,\xy Re Camden Chari-
of Commissioners to improve Wicklow tks, L. R. 18 Cli. 1)., \>. 325.
harbonr, for placing certain piles not (ic) See with respect to stamps,
lighted ; defence that the defendants Chapter XI. For ])nrpcses of em-
had committed the execution of the hezzlenicnt Acts an ap])rentice is a
work to a certain contractor ; held servant ; It. v. J/ellish (1805), Russ,
a f'ood defence.) dilbcrt v. Jfalpin, k Ky. 80.
Z^\v. .Tur. N. S. 300. Tlie difficulty (/) (1783) Cald. 360.
of distinguishing the two will he best (w) (1814) 2 M. & S. 460.
appreciated by referring to two cases ; (») (ISOl) 1 East, 531.



62 THE LAW OF MASTER AND SERVANT.

master and apprentice." The words " teach " or " instruct," or
the like, need not be employed. The Court will judge from
the wliole contract whether the substantial and principal
object of the contract be to hire and serve, or to teach and
learn ; in other words, to create the relation of master and
servant, or that of master and pupil (o). The payment of a
premium is strong evidence of apprenticeship, but it is not
decisive ; nor will the absence of a premium be proof that the
contract is one of hiring and service (p). " Where teaching
on the part of the master," said Taunton, J., in R. v. Credl-
ton iq), " or learning on the part of the pauper is not the
primary, but only the secondary, object of tlie parties, that
will not prevent (where work is to be done for the master)
the contract being considered one of hiring and service " (r).



Servant and Tenant.

The same person may be at once the servant and the tenant
of another; there is no incompatibility between the rela-
tions (s). But in law, the possession of the servant is that of
the master ; and from this principle follow important conse-
quences with respect to the occupation of premises by ser-
vants.

(1.) As regards menial or domestic servants, or officials
occupying premises belonging to their masters or employers.
The cases which arc cited below show that when a servant or
an official occupies a house, or room, or land for the purpose
of his service, and for the more convenient discharge of his
duties, the relation of landlord and tenant is not created ;
the servant or official has no estate or interest in the pre-
mises or land (t) ; and he did not ac(|uire a settlement by

(o) Jt V. Kinr/s Lijnn (1826), ]'.. (.v) Cockburn, C.J., in A', v. Sptir-

&C 97 J -^ ^ .^.^j, (iser,)^ L. i{. 1 Q H, 72; 35

(») Bayley, J., in 7?. v. Ki,Hj\s J.. J. M. C. 74. As to steward

r jf ' l.cing k'ssce of employer, Hdscij v.

(7)*(1831) 2 B. k A. 493. llhoa,h, (1824), 2 S. & S. 49.

(r) Sec Api-cudix A to this {!) R. w. South Newton {imO\ 10

chapter. 1^- ^ <-'• ^38.



HIRING AND SERVICE AND SIMILAR CONTRACTS. G3

such occupation. " If the occupation of the servant be neces-
sary to the service,"^said Cockburn, C.J., in R. v. Spurrell (w),
" then I think his occupation is the occupation of the master,
although the remuneration which the servant receives is the
less on account of his having the advantage of premises, or a
house for the purpose of his habitation. On the other hand,
if the occupation be not necessary to the service, then the
fact that the advantage of the occupation is part of the
remuneration of the service -vvill not render that occupation
less an occupation qua tenant than it would have been if
the man had paid rent." Hence it has been held that a
servant who was wrongfully dismissed, and whose chattels
had been removed to a place where he might have taken
them but did not, cannot recover damages for injury to his
goods by the weather {x). The relation of master and servant
having been broken, though wrongfully, the former had a
right to remove the furniture. It may be added, that a
servant residing in premises assigned to him for residence by
his master, cannot dispute the title ; and that havino- got in
as a licensee, he must first give up possession if he intends to
do so {y).

When a servant is allowed to remain in a house or room
long after the termination of the relation of master and
servant is at an end, it may be a question whether a tenancy
is not formed. But no tenancy, not even a tenancy at will,
is to be presumed from the mere circumstance that a
servant does in fact remain in possession for a short time
after the termination of the service. Probably the rule is
accurately stated in Kerrcdus v. State of Nevj York (z), in
which, in answer to a contention that immediately upon the
termination of service a tenancy at will arose, the Court
said, "In order to have that effect, the occupancy must be
sufficiently long to warrant an inference of consent to a
different holding. Any considerable delay would be suffi-

{u) See note (s). (y) Doc dem. Willis v. Birchmorc

(x) Lake y. Camphell (1S62), 5 (1839), 9 A. & E. 662;/)oc dem. /c/(?^-

L. T. N. S. 582 ; ])oe dem. Nichvll son v. Baytup (1835), 3 A. & E 188

V. McKcKg (1830), 10 B. & C. 721. [z] 15 Sickle, 225.



64 THE LAW OF MASTER AND SERVANT.

cicnt, but I can see no principle which would change the
occupant eo instante from a mere licensee to a tenant."

(2.) Officers or servants of Government claiming to be
exempted from the payment of rates. Pei'sons who occupy
property belonging to the Crown merely as servants of the
Crown, and solely for the purposes of their duties, are exempt.
But if the occupation be more than what is reasonably
required for the performance of their duties, they are liable
to be rated in respect of the excess («).

(3.) As regards the right to vote, the rule is thus stated in
"Rogers on Election Law " (?>) : ''Where residence in an
official or other house is necessary or conducive to the efficient
performance of the duty or service required, and is either
expressly or impliedly made a part of such duty or service,
there the relation of landlord and tenant is not created. But
where, without any obligation to reside in a particular dwell-
ing, an officer or servant chooses to occupy a house which is
provided for hira, the circumstance that he receives less
salary or wages in consideration of the benefit he derives from
occupying a house convenient for the discharge of his duty
or service, or that he would have an allowance for rent or
lodging-money if he did not occupy it, will not prevent him
from occupying as tenant " {c).

(4.) Very much the same question has arisen in regard to
burglary : it being requisite to state, in an indictment
for that crime, who is the owner of the premises which have
been broken into. It lias been held that if a public servant
or other person reside in royal palaces or apartments which
belong to the Crown, the apartments cannot properly be
described as his ; they are the property of the Crown.
Thus, when three persons were indicted for breaking into the
lodgings of Sir Henry Hungate at Whitehall, and there
stealing certain goods, the judges thought that the indictment
must be laid f(n- breaking into the king's mansion called

(a) EarlofJUilev. OrlndaU (VSn), 3 Q. I'.. 1 I. AjiiMiiaix B.
1 T. l:. 338. II. V. Mathevs (1777), {!>) VM\\ oil. j). :A.

C.iM. 1 ; I'uTtland v. St. Mnr<jnrcl, {r.) Smith v. Scghill (1875), L. K.

CaUl. 3 n.; /■'. v. J'onsonhy (181-2), 10 (^ 15. 422.



HIKING AND SEUVICE AND SIMILAR CONTUACTS. G5

Whitehall ((?). So, too, in the case of the Invalid Office at
Chelsea. It was a Government office, the upper part of
which was occupied Ly William Bunhury, the rent and
taxes of the whole house being paid by the Government. It
was described in an indictment as Banbury's dwelling-house.
This was held to be a misdescription (e). The general rule
seems to be, that premises occupied by servants of a public
company must be described as the company's premises.
Thus a house belonging to a company in which S. and
many other persons as officers of the company had separate
rooms, was held to be not properly described as his mansion-
house (/). A house which is detached from a workhouse,
and is occupied by the governor, must not be described as his
dwelling-house {g). Of course, a servant may be a tenant,
and the house which he occupies may be properly described as
his when he actually pays rent, and when his master could
distrain, as in R. v. Jaw is (It). So, too, when a toll-keeper was
employed by the lessee of the tolls to be taken at the gates,
and when the house was unconnected with any premises of
the lessee, who had no interest in it (/) ; or when a gardener
lived in a cottage quite apart from his master's house, and
kept the key of it (h).



Servants or Partners.

Clerks, salesmen, travellers, sailors, and, in fact, servants of all
sorts, are often employed on the terms that they share in the
profits of a business. Seamen and fishermen are occasion-
ally paid in whole or in part for their services by a propor-
tion of the profits of the adventure, voyage, or season. Are

{d) 1 Hale's P. of C, 522. Marge.lts (1801), 2 r.eacli, 930, and R.

(e) It. V. Peyton (1784), 1 Leach, v. Wilt (1829), 1 Mood. C. C. 248.

324. {h) (1824), 1 Mood. C. C. 7.

(/) E. V. Hawkins, Foster, 38. {i) II. v. Camfwld (1824), 1 Mood.

{(j) It. V. Wilson (1806), R. & E. C. C. 42.

115. So, too, in the case of a stew- {k) E. v. Rccs (1836), 7 C. k P. 568.

aid of a chib ; E. v. Ashley (1843), See Appendix B.
1 (_\ & K. 198 ; see, however, E. v.



66 THE LAW OF MASTER AND SERVANT.

those who are tlius remunerated partners ? The question
may arise between persons sharing in the profits ; aiul in
this case the rule is clear, that the whole scope, purport
and intention of the agreement must be looked at, in order
to determine whether a partnership is constituted. The
mere circumstance that the parties to an agreement state
therein that it is not to constitute a partnership, or that they
insert a reference to the 28 & 29 Vict., c. 86, will not prevent
the creation of a partnership if the elements of partnership
are to be found in the agreement. In Ex iiarte Delhasse (l), a
person who advanced ;£ 10,000 had a right to a specified per-
centage of profits, subject to liability to share in losses. He
had also a right to have accounts furnished to him. Though
it was expressly stated that the sum was advanced by way
of loan, under the fiirst section of the 28 & 29 Vict., c. 86,
the Court held that a partnership existed. Nor will it suffice
to prevent the creation of a partnership that tlie parties
intended that all the incidents of a partnership should, in fact,
€xist, but did not suppose that a partnership would, in law,
be the result. In Paiusey v. Armstrong, where there was an
agreement that the plaintiff should share the profits and loss,
Mr. Justice Kay observed, with reference to the plaintiff's con-
tention, that it was not intended that he and the defendant
should be partners : " I confess, in my opinion, the agreement
to share profit and loss is quite conclusive of the relation
between two persons who do so agree, and it is not possible
for one of them afterwards to say, ' I was not a partner,' any
more than it would be possible for a man and a woman who
had gone through the formal ceremony of marriage before a
Eecistrar, and had satisfied all the conditions of the law for
making a valid marriage, to say that they were not man and
wife, because at the same time one had said to the other,
' Now, mind, we are not man and wife.' Or, to put another
illustration, suppose a man allowed his friend to invest
i;iO,000 consols in his name, and said, ' I will hold the consols

(Z) (1878), L. R. 7 C'li. D. 511 ; 47 L. J. 15ktcy. Ci.



HIRING AND SERVICE AND SnilLAR CON'J'HACTS. G7

and pay the dividends to A. B. during his life, and then to
C. D., and afterwards to anybody whom you by will shall
appoint : but, mind, I am not to be considered a trustee ; '
the stipulation that he was not to be a trustee would not
prevent his being a trustee. The truth is, that there are
certain legal relations which are entered into by agreeing to
certain conditions, and when those conditions are agreed to
it is quite idle for people to superadd, or to attempt to
superadd, a stipulation that the necessary legal consequences
of those conditions shall not follow from the arranfje-
ment " (m). The question may also arise between persons who
share in the profits of a business and third parties. It is clear
that the intention of the framers of an agreement not to
incur liability to third parties may not prevent them being sub-
jected to such liability. The criterion is sometimes expressed
thus : " every man who has a share of the profits of a trade
ought also to bear his share of the loss " (n) ; "he who takes a
moiety of all the profits indefinitely, shall, by operation of
law, be made liable to losses if losses arise " (o) ; anyone
who "has a specific interest in the profits themselves, as
profits " (j)), and not merely a right to be paid a sum equal
to the profits, or who " stipulates for a share in the nett
profits of a concern, and has a right to an account of the nett
profits as a partner" (r/), is liable to third persons. Subtle
and unsubstantial distinctions were established. Thus, it was
held that the receipt of a salary which fluctuated according to
the profits of the master's bushiess, did not make a partner-
ship ; but if there was a stipuhxtion for a proportion of the
profits as profits a partnership was created. The avowed
reason for these distinctions was the theory that he who took
a part of the nett profits withdrew a portion of the creditors'
funds, — a reason which is not in accordance with the fact,

{m) (1881), L. II. 18 Ch. D. 698, Bl. 235, 247.

704 ; see also the case of Kai/lor.y. {])) E.r parte Hamper (1811), 17

Farrcr, mentioned at p. 705. Yes. 403. 404.

{n) Grace v. Smith (1775), 2 "\V. (q) Ifri/hoc v. Surge (1850), 9 C. B.

Bl. 998, 1000. 431, 444.

(o) Waugh v. Carver (1793), 2 H.

F 2



68 THE LAW OF MASTER AND SERVANT.

and Avhicli is all the more unsatisfactory because iiett profits
do not exist until debts are paid, and because sharing in
gross profits was held not to make one a partner (r). The
real reason for these subtleties was generally a desire to
shield arrangements from the operation of the Usury Acts.
Since the decision of the House of Lords in Cox v. Hick-
mania), these refinements have lost their importance. A
participation in profits is not a perfect test of partnership,
though it is, as Lord Cranworth observed in the leading case,
" cogent and often conclusive " evidence. The real ground
of liability is that a relationship of principal and agent
exists ; a person is liable to third parties because a trade
or business has been carried on by persons acting on his
behalf.

The 28 & 29 Vict., c. 86, enacts :—

Sect. 1. The advance of money l)y way of loan to a person engaged or
about to engage in any trade or nndt'itaking upon a contract in writing
with such person that the lender shall receive a rate of interest varying
with the profits, or shall receive a share of the profits arising from
carrying on such trade (jr undertaking, shall not, of itself, constitute the
lencler a partner with the person or the jiersons carrying on such trade
or undertaking, or render him responsible as such {t).

Sect. 2. No contract for the remuneration of a servant or agent of any
person engaged in any trade or i;ndertaking by a share of the profits of
such trade or undertaking shall, of itself, render such .servant or agent
responsible as a partner therein, nor give him the rights of a partner.

(/•) Hcylwc V. Burgc (1850), 9 C. B. J. C. P. 125.
440. (/) Poolnjv. Driver (1876), L. R.

{s) (1860), 8 II. L. C. 268 ; 30 L. 5 Ch. D. 458 ; 46 L. J. Ch. 466.



UlIUNG AND SERVICE AND SIMILAR CONTRACTS. 69



APrEXDIX A.

Servant. Apprentice.

R. V. Little Bolton (1783), CalJ. R v.Hujhnnm (1785), Cald. 491 ;

367 ; R V. Ecdedon (1802), 2 East, R v. Laindon (1799), 8 T. 11. 379
298;i?.v.S7m(MUl811), UEast, (use of ^vord " apprentice " not
541 ; R. V. Burhach (1813), 1 M. necessary) ; R. v. Ranham (1801),
&S. 370; i.'. V. /;i"«iH7/i(/v(183()), 1 East, 531; 7£. v. MountsorreU
5A. &E. 676; A'. v.'Northownui (1814), 2 M. & S. 459. Agree-
(1846), 9 Q. B. 24. ment by a father with R. that R.

shoukl take the son of the former
for six years to teacli him the trade
of a frame-work knitter. A con-
tract of apprenticesliip, distinguish-
ing the case from R. v. Little
Bolton, inasmuch as the .son in
the lormer was entitled to none of
the earnings. " Tlie wliole con-
tract with the father was hottomed
and had for its object tlie instruc-
tion of the son and nothing else."
R. V. Bilborouqh (1817), 1 B. &
ALL 115 ; R. V. Kidu-elly (1824),
4 D. & R. 309 ; R. v. Kincfs Lynn
(1826), 6 B. & C. 97 ; R. v. Comhe
(1828), 8 B. & C. 82 ; R. v. TiV'
ton (1829), 9 B. & C. 888; R.
V. Edingak (18.30), 19 B. & C.
739 ; R. V. Knutsford (1831), 1 B.
& Ad. 726 ; R. v. Grediton (1831),
2 B. & Ad. 493 ; R. v. Newton
(1834), 1 A. & E. 238; R. v.
IFishford (1835), 4 A. & E. 216 ;
R. V. Ljhthum (1836), 4 A. & E. 936.
When the contract was not under
seal and was not projierly stamped,
but the manifest object was to
teach, the Courts held that there
was a defective contract of ap-
prentice.ship.



70



THE LAW OF MASTER AND SERVANT.



APPENDIX B.



Texaxt.

lHyre v, Smallpar/e (17nO), 2
Bur. lOGO. Plaintiff, coutiollur of
Chelsea Coll eL;i', and residing; in the
controller's apartments, which he
occupied in virtue of his office. See
also reference to the St. Ikirtlwlo-
mew Case, p. 1061.

B. V. Mathnr.<, (1777) Cald. 1.
Keeper of a lodge in Windsor I'ark,
and two acres of land, appointed
by the ranger, rateable as ranger.
" When a servant," said Mans-
field, C. J., " occupies a house and
two acres of land, whether he pays
for them by a rent or by service
it can make no difference as to his
being rated, he is equally liable."
This test is not now employed.

Bute V. Gnndall (1786), 1 T. R.
338. The ranger of Eichmond
Park, rateable as beneficial occupier
of certain enclosed lands yielding
profit to him.

A'. V. Mdkrulge (1787), 1 T. \\.
598. Person employed as herd by
several persons having a light of
common andiicrmitted by them to
occupy a tenement (jf i,'10 a-year
as a reward for his services ; settle-
ment by occupation.

R. V. Tcrvi^tt (1803), 3 East,
506. A commanding otiicer having
certain apartments allotted to him
and his family in barracks for liis
resilience, held to be rateable to
the jxKjr. The ground of decision
as jjut in Lord EUenborough's
judgment, is that the oHiccr, un-
like a private soldier, Avho had
no accommodation beyond what
was rer|uired for sleeping, eating,
and the like, " Inul a tlegree of
personal benefit, and accommo-
dation from the property en-
joyed by him, ultra tlie mt^re
public use of the thing; and which
excess of personal benefit and ac-
commodation ultra the public luse



Not Tenant.

R. v. Bt. Luke's Hospital (1760),
2 Bur. 1053; 1 W. B. 249.
Servants of this charity not rate-
able because not occupying distinct
apartments.

M. V. Field (1794), 5 T. P. 587.
Person emplo^'ed at annual wages
as superintendent of a philanthropic
society with no distinct apart-
ments in the house except a bed-
room ; not occupier of the house.
The question before the Court was
whether she was the occupier of
the whole, but the reasoning was
opposed to her being the occupier
of any part.

li. V. Tijnemoufh (IP'IO), 12 East,
46. The occupation of a lighthouse
by a servant placed there to look
after the light in consideration of
a salary, is the occujiation of his
master, Avho is rateable.

Jiertie v. Ilcaumnnt (1812), Id
East, 33. A servant from week
to week put by his master into pos-
session of a cottage divided into
two parts, one occupied by the
servant, the other occupied by
JNIrs. i)., who paid rent. The
servant paid no rent, but his wages



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