Page 90, n. (g). Add:-Waiters employed for purposes of trade are not within the Act: Whiteley v. Burns, [1908] 1 K. B. 705.

,, 390, notes on s. 13. Add :-Sub-s. (1).-Where two seams constitute a "mine," the miners working in one seam cannot appoint a checkweigher in respect of the mineral gotten from that seam: Thorpe v. Davies, [1968] 2 K. B. 750.

,, 585, after s. 13, sub-s. (5), add :-This certificate is conclusive as to the validity of the proceedings under which the rules or any alterations in the rules have been passed: Osborne v. Amalgamated Society of Railway Servants of England, Ireland, Scotland and Wales (1908), 24 Times L. R. 827. ,, 608, at end of second paragraph, add :-See Conway v. Wade (1908), 24 Times L. R. 874.

,, 646, line 6, after "sue" add note:-But such a deduction is now prohibited by the Fatal Accidents (Damages) Act, 1908 (8 Edw. 7, c. 7).

,, 649, last line, after 24 Times L. R. 711, add:-[1908] 2 K. B. 802; Dewhurst v. Mather, [1908]

2 K. B. 754.

653, at end of first paragraph, add :—Rowland v. Wright (1908), 24 Times L. R. 852.

653, after line 25, add :—See McDonald v. Owners of Steamship “Banana” (1908), 24 Times L. R. 887. ,, 654, at end of third paragraph, add :-See Fitzgerald v. W. G. Clarke & Son, [1908] 2 K. B. 796. 655, at end of second paragraph, add:-See also Broderick v. London County Council (1908), 24 Times L. R. 822-an unsuccessful claim in respect of enteritis contracted by inhaling gas while working in sewers; Ismay, Imrie & Co. v. Williamson (1908), 24 Times L. R. 881 (H. L.)-heat-stroke in a stoke-hole held to be an "accident."

661, notes on s. 1, sub-s. (2) (b). Add :—A claim for compensation, subsequently withdrawn, is no bar to an action for damages: Rouse v. Dixon, [1904] 2 K. B. 628. See Cribb v. Kynoch, [1908] 2 K. B. 551. · 662, at end of first paragraph, add:-A workman gave the notice and made the claim within the time required by s. 2, sub-s. (1). He took no further proceedings under the Act. Thirteen months after the accident he brough: an unsuccessful action for damages. Subsequently he applied for compensation under the Act: Held, that the application could not be entertained: Cribb v. Kynoch, [1908] 2 K. B. 551.

667, notes on s. 6, sub-s. (1). Add:-For the meaning of this sub-section, see Page v. Burtwell, [1908] 2 K. B. 758.

,, 667, at end of third paragraph of notes on s. 6, add :—Sed quære, having regard to the meaning given to "recover" in lage v. Burtwell, [1908] 2 K. B. 758.

,, 671, notes on s. 8. Add-As to the burden of proof under sub-ss. (1) and (2), see Haylett v. Vigor (1908), 24 Times L. R. 885-a case of "lead poisoning or its sequela."

THE LAW OF

MASTER AND SERVANT.

CHAPTER I.

VARIETIES OF LABOUR AND CONTRACTS RELATING THERETO.

THE varieties and forms of labour may be classified according to the purpose or object in view.

Political economists, in classifying such forms, have had chiefly in view the laws regulating wages. The older writers on political economy, dividing society into capitalists and labourers, included under the latter all classes of workers. Later writers, of the defects of this classification, have sub-divided "labourers" into various groups, such as the following:

Statisticians in classifying the forms of labour have had in view, as a rule, the requirements of a census. They have generally divided such forms into occupations relating to production of raw materials, transformation and completion of raw materials, public services, and the liberal professions. For example, the chief

M.

B

groups in the classification proposed by Dr. Josef Körösi are:Agriculture, mining, industry or manufacturing, transport or carriage, commerce, defence (army and navy), public service, servants of all sorts, day labourers, persons living on their own means, non-effectives and apprentices, the dangerous classes, &c. Some of these divisions (which are sub divided into many groups) are of no legal significance. Others correspond to legal divisions; such is the tendency to legislate for special trades and occupations, that some divisions adopted for statistical purposes have become of legal importance (a).

Labour may be classed along with commodities generally. It is usual and correct to speak of a labourer being hired; his labour may also be described as purchased. Such has been hitherto the view of many economists, who have spoken of labour as a commodity, and have sought to approximate the sale of labour to that of commodities or goods (b). Lately, however, both economists and legislators have been disposed to view labour apart from commodities. To treat labour and commodities alike was a feature of Roman law. The bulk of the work performed in modern times by labourers and artisans in ancient Rome fell to slaves, who were often let out by their masters. The opera or fructus of the slave were viewed in much the same light as the produce of machines, tools, &c. which had been let out to hire. Labour by freedmen was common; it was often an implied term of emancipation that the freed slave should perform certain services for his former master. In the Digest (c), under the rubric De operis libertorum, are references to some of the problems which now occupy our Courts. But for the most part Roman lawyers dealt with questions as to work and labour which have become of little importance. The texts as to the rights and duties of masters, as to wages and hours of work, are few, brief, and imperfect.

In Roman law the hiring of land and the law of master and servant were alike treated under the head of locatio-conductio (d). Contracts for the labour and services of freemen for reward fell

under the sub-divisions locatio-conductio operarum or operis. As the landlord was the locator of a farm, and the lessee the conductor, so the servant was the locator operarum, and the master the conductor operarum. If a workman had to do something in respect of goods or chattels supplied to him, e.g., if he had to weave materials into cloth, he was called conductor operis, and the owner of the materials was locator operis. It was an artificial division. As M. Renouard remarks:-"L'artifice du langage peut réunir les deux louages en une même phrase, mais ne saurait créer entre eux une réelle et parfaite assimilation."

Another peculiarity of Roman law originating in the prevalence of slave labour, was the distinction between operæ illiberales and operæ liberales; the former being, the latter not being, the subjectmatter of a contract locatio-conductio operarum. According to Roman law the contract of work and labour was treated as locatioconductio or mandatum according as the service was menial, mechanical or intellectual, remunerated or gratuitous.

Traces of the Roman law are to be found in the provisions of some modern codes as to mandate. According to Roman law, as was natural in a society in which the bulk of manual work was done by slaves, and only a few professions were open to free men, mandate was presumed to be gratuitous. According to the facts of modern life, such a contract is, as a rule, for remuneration. Some modern codes which bear the impress of Roman law state as the rule what is the exception, and proceed to deal as exceptional with what is in fact usual, e.g., the Swiss Code des Obligations. (Title XIV. 392.)

The Roman law of work and labour was evolved from locatioconductio; and the efforts of legislators and judges in countries where Roman law prevailed was to adapt the principles of locatioconductio to new circumstances. The English law of work and labour has been evolved from the law of master and domestic servant; and a large part of this volume describes the efforts of the Courts to adapt that law to new relations differing in important respects from the relation of master and servant.

Some deviations from a strictly logical classification may be noted :

(1) The separation of contracts of work and labour from other contracts theoretically of the same class. In theory the contract of a carrier by land and sea, and of a

railway company, is a contract of work and labour. But from early times the duties of a carrier have been so peculiar that they have been treated separately from the contract of work and labour.

(2) The contract of agency is akin to that of work and labour. In early English common law they were not very distinctly separated; the phrase principal and agent is of comparatively modern use. But it has been found expedient to separate work and labour from agency.

(3) There has been an extension of the idea of master and servant to many relations really different from that of master and servant. It has become necessary to consider the obligations of employers to persons who are not, in a strict sense, servants; by a sort of fiction these relations have been treated as examples of master and servant.

The following are the chief classes of contracts dealt with in this volume:

(I.) Contracts of master and servant strictly so called; A. being paid by B., and bound to obey his orders as to the manner of doing work. (See p. 7.)

as

(II.) Contracts for exclusive personal service, but without control. A. contracts to do work for B. and for no other person, but is free to do the work in the manner he pleases (e). This second class of contracts is described in certain Acts of Parliament "contracts of service or contracts personally to execute any work" (f). Probably in this category should be placed contracts such as that which came before the Court in Stuart v. Evans (g). A., a slater, employed by B., the defendant, to slate houses for him; A., who provided his own tools, was paid by the piece; B. provided slates, poles and scaffolding. The Court held that A. was a "workman" within the meaning of sect. 8 of the Employers' Liability Act, 1880.

(III.) Contracts with a particular workman for himself and on behalf of others.

Such contracts are common in many industries, e.g., employers let outlying parts of mines to "butty-masters or "workingcontractors," to pay the hewers

(e) See contract in Bowen v. Hall (1881), 6 Q. B. D. 333.

by the hour and the piece; or

(f) Employers and Workmen Act, 1875, s. 10; see 4 Geo. IV. c. 34, s. 3. (g) (1883), 49 L. T. 138.