Page images

three years and to teach him, and the agreement concluded, "provided always that he (the apprentice) obeys all commands and gives his services entirely to the business during office hours,” misconduct on the part of the apprentice was held a good answer to an action for dismissing the apprentice (d). The master's usual remedy is to apply under the Employers and Workmen Act, 1875, to have the instrument of apprenticeship rescinded, or to sue the parent or other surety on the covenant-a liability which continues after the apprentice has attained his majority (e).

There is an absence of authority in English law as to the place at which a servant is bound to serve (f). The point has been discussed in the Scotch Courts, and the following is said to be the rule on the subject:-" It seems to be the general opinion of lawyers that all domestic servants, secretaries, and other servants similarly circumstanced whose duties have relation solely to the master's presence are bound to attend his movements, and cannot object to go with him from country to town, from town to country. But this under the following conditions: No servant is bound to go out of the British Isles to a foreign country, seeing that there he is without the protection of British law, and in circumstances, it may be, far different from those under which he would have lived in his own country" (g). "In the case of servants whose work has reference to a place, not to the master's person, such as overseers, ploughmen, or workmen at manufactories, the master cannot remove the servant to any other farm or manufactory at any distance inconvenient to the servant (). The place where the master has his work at the time of the engagement would be held the place where (in the absence of express stipulation) it is implied that the servant was to labour; and, having once entered to his service, he cannot be removed to any place which may occasion him trouble or expense" (g). To entitle the servant to refuse to serve, the inconvenience must be real: that is a question of degree, and turns on the facts of each case.

(d) Westwick v. Theodor (1875), L. R. 10 Q. B. 224: Maw v. Jones (1890), 25 Q. B. D. 107. It is a good plea to an action for not teaching an apprentice, that the conduct of the apprentice was such as to prevent it: Raymond v. Minton (1866), L. R. 1 Ex. 244; Learoyd v. Brook, [1891] 1 Q. B. 431.

As to damages for breach of covenant in an indenture of apprenticeship: Lewis

[blocks in formation]

The above distinction between servants whose work has reference to a place, and those whose work has reference to a master's person, seems to be recognised in most systems of jurisprudence (¿); and, it is submitted, is sound (k).

It was decided in Coventry v. Woodhall (1) that "generally no man can force his apprentice to go out of the kingdom, unless it be so expressly agreed, or that the nature of his apprenticehood doth import it, as if he be bound apprentice to a merchant adventurer or a sailor, or the like."

(i) Savigny, Obligationenrecht, I. 49; Levi, Della Locazione.

(k) See n. (u), p. 161, supra.
(1) (1616), Hob. 134.


1. The rules stated in the text as to the circumstances in which servants may be dismissed have been recognised for many years. It was, however, long supposed that a master had no right to dismiss a servant for disobedience or misconduct. In 19 Hen. VI. 30, cited in Brookes' Abridgment, title "Labourers," 27, it is said, "It seems the master cannot discharge his servant within the time, &c., unless he agree to it, no more than a servant can depart without the agreement of his master." See, however, Fitzherbert, 168. In Dalton's Justice, edition of 1697, p. 128, the same view is stated,- "The master cannot discharge his servant, during his term, without the agreement of the servant. And now by the statute 5 Eliz. 4, it must be for some reasonable cause to be allowed by one justice of the peace at least; otherwise the master shall forfeit forty shillings. Tamen quare. For where the departure or putting away of the servant is by the joint consent of the master and of the servant, such putting away or departure, seemeth not to be within the statute of 5 Eliz., neither is the allowance of the justice of the peace requisite or needful therein." "If a servant shall refuse to do his service, that is a departure in law, although he stay still with his master. If the master shall detain from his servant his wages, meat or drink, this is a good cause of departure: But yet this cause is now by the statute of 5 Eliz. to be allowed of by the justices of peace, before the servant may lawfully or safely depart. So if the master shall license his servant to depart, or if the master, or wife of the master shall beat the servant; these were good causes for the servant to depart, before the statute 5 Eliz. 4. But now the allowance of the justice of the peace is requisite as aforesaid." The fifth section of 5 Eliz. c. 4, stated that no person which shall retain any servant shall put away his or her said servant unless it be for some reasonable and sufficient cause or matter to be allowed before two justices, or one at the least within the said county, &c." Some editors of the statute read differently the section which I have quoted; for "to" they read "or," as if resort to the justices were an alternate remedy. But the generally accepted reading, borne out by the statute itself, is that which I have given. The question was considered by the judges in 1633, and their answer is clear:-"If a woman being with child," say the judges in their resolution, "procure herself to be retained with a master who knoweth nothing thereof, this is a good cause to discharge her from her service. And if she be gotten with child during her service, it is all one. But the master in neither case must turn away such a servant of his own

authority. But if her term be ended, or she lawfully discharged, the master is not bound to provide for her," &c. Dalton's Justice, p. 165.

The law was so understood in 1773. Lord Mansfield in Temple v. Prescott, Cald. 14, n.—an action by a wet nurse who was discharged by her mistress -ruled that frequent acts of insolence to her mistress and fits of passion did not warrant her discharge. No person," he said, can be judge in his own cause; and this first principle could not be meant to be overturned by any law or usage whatsoever." He refused to receive evidence of usage, now well recognised, to dismiss domestic servants on payment of a month's wages. See also Rex v. Tardebigg, Sayer, 100 (1753). In 1777 Lord Mansfield and Willes, J., in Rex v. Brampton, Cald. 11, had to consider the same point. Relying mainly upon a dictum in Viner's Abridgment, title Removal, p. 459, which does not bear out Lord Mansfield's statement, they ruled that a master was entitled to turn away a maidservant who was with child. "Shall the master," asked Lord Mansfield, “be bound to keep her in his house? To do so would be contra bonos mores, and in a family where there are young persons both scandalous and dangerous." This decision was put by Willes, J., on the ground that the justices had no jurisdiction in case of domestic servants. See Rex v. Welford, Cald. 56. To show how the law was understood till some time after Rex v. Brampton, I may refer to Mr. Bird's book on the "Law of Master and Servant," the first edition of which was published in the end of last century. In the third edition, published in 1801, he cites at p. 3 Rex v. Brampton, to show that notwithstanding the statute of Elizabeth, if a servant be guilty of incontinence or other moral offence whilst in his master's service, the master may discharge him without application to a justice. But Mr. Bird adds, neither for rudeness or other misbehaviour of servant, can the master discharge him, before the end of his term, nor can the servant leave his master on account of ill-treatment by the master or mistress; but in these and like cases, application must be made to a justice for a discharge as directed by the statute of Elizabeth." See remarks of Lord Kenyon in Rex v. Hulcot (1796), 6 T. R. 587, and Rex v. Sutton (1794), 5 T. R. 659.


Sections 5, 6 and 9 of the statute of Elizabeth are mentioned by Mr. Crabb in his Digest of Statutes as being in force in 1844; they do not seem to have been repealed until 1875. See Chitty's General Practice (edition of 1837), p. 76. I do not find any clear assertion of the principle, now universally admitted, that a master may for disobedience, &c., discharge any servant, until 1817, when Lord Ellenborough at Nisi Prius, in Spain v. Arnott, 2 Starkie, 256-a case of a servant in husbandry-said, "He (the master) might have obtained relief by applying to a magistrate; but he was not bound to pursue that course; the relation between master and servant, and the laws by which that relation is regulated existed long before the statute." These words seem directly contrary to the express terms of the 5th section.

[ocr errors]

2. At common law a person is not entitled to treat a contract as at an end for every breach, but only when there is a breach which goes to the root of the matter and which cannot be properly compensated for: Simpson v. Crippin (1873), L. R. 8 Q. B. 14. When a singer who had engaged with defendant to sing for fifteen weeks, and who had agreed that he would be ready for rehearsals six days before the engagement commenced, failed to attend these rehearsals, it was held that the defendant was not entitled to refuse to take the plaintiff into his service: Bettini v. Gye (1876), 1 Q. B. D. 183.

No doubt failure or refusal on a single occasion to do what one was bound to do under a contract of personal service-as in Poussard v. Spiers (1876), 1 Q. B. D. 410, which was a case of failure on the part of a leading singer to join in the opening performance of a new opera-might go to the root of the contract and justify rescission. But apart from the decisions which are quoted in the text, it might not have occurred to anyone that refusal by a maidservant to answer a bell, or by a clerk to fetch a book on a single occasion, would justify instant dismissal and forfeiture of wages: Gould v. Webb (1855), 4 E. & B. 933.



MASTERS may recover damages against persons who wrongfully deprive them of the services of their servants or apprentices and both parties have a cause of action against third persons for "maliciously procuring a breach of the contract of employment."


The rights of masters and servants arise out of contract. might therefore be supposed that they would consist merely of rights in personam and not of rights ad rem. This, however, is not entirely the case. The relation is, in some respects, status. The master's rights to the labour of his servants are regarded as rights ad rem; they are somewhat of the nature of property.

Such a right of action as that which is above stated existed from early times. According to Bracton (a), the master might bring an action for insult and disgrace inflicted upon his servant, apparently though he had not lost service (b). Actual bodily injury was not necessary to sustain such an action; mere intimidation or menaces were enough, as appears by 20 Hen. VII. f. 5 (c).

The rule clearly recognised nowadays is, that the master may recover damages from persons who have wrongfully injured his servants, provided a loss of service is thereby caused.

Thus actions have been brought by masters against persons for negligently driving over a servant (d), administering injurious drugs to him (e), or for injuries from the bite of a dog (ƒ).

[merged small][merged small][ocr errors][merged small]

Common instances of such actions are those which are brought against persons who knowingly entice away or procure the departure of servants (g). To sustain such an action, it is not necessary to prove any binding contract of service (h); it will be enough for the plaintiff to show that he was actually receiving the benefit of certain services at the time at which the injury of which he complains was committed, and that the defendant was aware of this fact. In Lumley v. Gye (i), it was held that an action might be brought by one theatre manager against another for procuring a prima donna to break her engagement to sing at the theatre of the former. In short, the action lies when the relation of master and servant does not in the strictest sense exist.

The cause of action known as "maliciously procuring breach of contract" has been lately much considered. It has long existed in English law, and many instances of it are to be found in the Year Books and the early reports (). Such actions were, at first, always raised in connection with contracts of service, strictly so called (7). In 1853 the case of Lumley v. Gye (m) extended the action to the case of a contract of exclusive employment between a singer and the lessee of a theatre; the principle of the decision being that "the procurement of the violation of the right is a cause of action" (n). Bowen v. Hall (0), in which the contract

(g) See Hall v. Hollander (1825), 4 B. & C. 660; Lewis v. Fogg (1732), 2 Str. 944; Fores v. Wilson (1791), Peake, 78. The Scotch Courts have held that a master is entitled to damages from one who induces a servant to reveal the secrets of his master's trade: Fraser, 314.

(h) Evans v. Walton (1867), L. R. 2 C. P. 615; Lumley v. Gye (1853), 2 E. & B. 216; Bowen v. Hall (1881), L. R. 6 Q. B. 333. Trespass will lie for enticing away a journeyman: Hart v. Eldridge (1774), Cowp. 54; although only hired by the piece and not for any certain time. Trespass will not lie for inducing a servant to leave at the expiration of the period for which he was engaged, although he had no intention at the time of leaving: Nichol v. Martin (1799), 2 Esp. 734. As to evidence of enticing away, Keane v. Boycott (1795). 2 H. B. 512.


(i) See note (h); De Francesco Barnum (1891), 63 L. T. (N. S) 514 (Action for continuing to employ after notice.)

(b) Y. B. Mich. xi. Hen. IV. f. 23, A, pl. 46. See the judgment of Coleridge,

J., in Lumley v. Gye (1853), 2 E. & B. 216, 255 et seq., and the cases there quoted.

() Excluding for the moment cases of the disturbance of rights by means of breaches of contract. The cases cited by Crompton, J., in Lumley v. Gye, l. c. at p. 228, are only used to rebut the suggestion that the cause of action was limited to cases of menial service. Perhaps Shepherd v. Wakeman (1 Sid. 79) is an exception, though it may be considered a case of defamation, the loss of marriage being evidence of special damage. See the argument of Willes in Lumley v. Gye, l. c. at p. 221, and the opinion of Cave, J., in Allen v. Flood, [1898] A. C. 1, at p. 35. Winsmore V. Greenbank (Willes, 577) really turns on the rights of property in a wife available against the world.

(m) (1853), 2 E. & B. 216.

(n) Per Erle, J., l. c. at p. 232. And see the judgment of Lord Herschell in Allen v. Flood, [1898] A. C. at p. 121 et seq., and of Lord Macnaghten, ibid., p. 154, and the opinion of Wright, J., ibid., p. 62.


(0) (1881), 6 Q. B. D. 333,

« EelmineJätka »