66

a right would not now be admitted. The authorities in favour of the doctrine are old. Some of them referred to the relation of lord and villein; such a right does not flow from the contract of hiring and service as now understood; modern usage is wholly against the existence of so dangerous a power; and there are dicta -in Winstone v. Linn (r), for example-against it. It may be taken to be law that the beating of a servant would be good ground for departure and for an action for assault. The dicta to the contrary are to be ranked with "such quaint and "absurd dicta as are to be found in the books as to the right of a "husband over his wife in respect of personal chastisement, not now capable of being cited as authorities in a court of justice in "this or any civilized country" (s). On the other hand, a master may chastise his apprentice for negligence or disobedience, provided it be done moderately (). The apprentice is placed with the master to be instructed; and as he cannot be dismissed for misconduct, which may be done in the case of a servant, and as the master stands in loco parentis, it is deemed expedient to permit him to chastise an apprentice; or, to use a common phrase, the authority of the parent is delegated to the master. That authority being itself delegated, the master may not delegate it to anyone else (u). It would appear from an old authority (a) that a master may not use violence in order to force an apprentice or servant to return to

either of those places." In a learned anonymous work published in 1767, entitled Laws concerning Masters and Servants," p. 126, the existence of the right of correcting servants is recognised; and the same is true of Bird's Law of Master and Servant (1801), p. 5. On the other hand, there is a passage in Fitzherbert, De N. B. 168, to the effect that battery by the master is a good cause of departure. See also Hawkins, P. C. i. 483. Kent in his Commentaries, ii. 261, says the right of chastising "may safely be confined to apprentices and menial servants while under age, for then the master is to be considered in loco parentis." In Reg. v. Huntley (1852), 3 C. & K. 142, it was ruled by Platt, B., that one servant, even an upper servant, had no right to chastise another servant. See also Latter v. Braddell (1880), 50 L. J. Q. B. 448.

(r) Holroyd, J. (1823), 1 B. & C. 469. The tendency of modern legislation on the subject may be collected from such statutes as 24 & 25 Vict. c. 100, s. 26, and 38 & 39 Vict. c. 86, s. 6.

(s) Reg. v. Jackson, [1891] 1 Q. B.

671, per Halsbury, C., at p. 679. A great master of the common law, charging a grand jury at Calcutta as to what in his view was, in 1785, the English law, said: "A master may legally correct his servant with moderation, and with a view to his amendment; nor, if the servant thus corrected should die by some misfortune unforeseen and unlikely to happen, would the master be guilty of any crime; but if the correction be immoderate, excessive, unreasonable, cruel, the party may, if he live, have reparation in damages; or, if he die, the master will be guilty of manslaughter or murder according to the circumstances: " Sir William Jones's Works, 7, 9.

(t) Chitty's Gen. Prac. vol. i. 70a; Gilbert v. Fletcher, Cro. Car. 179; Penn v. Ward (1835), 2 C. M. & R. 338; Combes's Case (1613), 5 Rep. Pt. 9, 76a; Walter v. Everard, [1891] 2 Q. B. at p. 376.

(u) Combes's Case, 5 Rep. Pt. 9, 75b. And see Cleary v. Booth, [1893] 1 Q. B. 465 (authority to chastise a schoolboy).

(r) Dalton, c. 121, p. 283. See Austin on Apprentices, p. 67.

his service. Reasonable apprehension of grievous bodily harm at the hands of his master will justify an apprentice in leaving his service (y). Another exception is said to exist in the case of a master of a ship; though a master being himself a servant, this is no exception to the rule that the master may not chastise his servant. Having authority to do what is necessary for the safety of the ship and those on board, he may imprison a seaman or inflict reasonable and moderate chastisement for disobedience to lawful commands, insubordination or mutinous, riotous or insolent conduct (z). The power may be exercised not merely when the ship is at sea and beyond the reach of assistance (a). No particular mode or instrument of punishment is prescribed; it will depend on the circumstances of the case and the gravity of the offence how the culprit should be punished. But the punishment must be applied with due moderation; and should a captain inflict upon a seaman immoderate and unreasonable punishment, he will become a trespasser (b), and will be liable to an action. Due inquiry should be made before punishment is inflicted (c). It is the duty of the master to cause a clear statement of all offences committed, the inquiry and the punishments inflicted, to be inserted in the official log.

(y) Halliwell v. Counsell (1878), 38 L. T. (N. S.) 176.

(z) Rhodes v. Leach (1819), 2 Stark. 516; Agincourt (1824), 1 Hag. 271, 273; Lowther Castle (1824), ibid. 384; Hannaford v. Hunn (1825), 2 C. & P. 148, which shows that the verdict of a court martial would not be conclusive evidence of the truth of a master's charges against a seaman.

(a) Lamb v. Burnett (1831), 1 Cr. & J. 291 (action for assaulting seamen on board ship at anchor within two miles of Macao, and within hail of several vessels; held that the mutinous conduct of the plaintiff was a good justification). Bayley, J., uses language which seems to imply that this power exists anywhere; but query if the vessel was in the Thames or in any English port,

within waters in which the ordinary criminal law prevailed. It is submitted that the exceptional remedy exists only where the necessity exists. Enchantress (1825), 1 Hag. Ad. 395. The Lima (1837), 3 Hag. 346, as to use of force to prevent mutiny.

(b) Watson v. Christie (1800), 2 B. & P. 224; Maclachlan's Law of Merchant Shipping, 4th ed. p. 209. As to punishments of seamen for offences against discipline at sea, 57 & 58 Vict. c. 60,

8. 225.

(c) 57 & 58 Vict. c. 60, s. 228. As to duty of instituting inquiry, Murray v. Moutrie (1834), 6 C. & P. 471. See as to punishments of sailors, sects. 114 and 376-384 of the Merchant Shipping Act,

1894.

CHAPTER IV.

HIRING AND SERVICE AND SIMILAR CONTRACTS.

THE relation of master and servant may be further explained by distinguishing it from other legal relations which it approaches, and with which it is often confounded.

Servant and Agent.

A servant is for certain purposes, and in certain circumstances, hereafter stated, the agent of his master (a). He is authorised, in many cases, to pledge the credit of his master, 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 responsible for the acts of his servant done in the course of his employment. Sometimes the terms agent and servant are used, especially in the Courts of the United States, as if interchangeable (b). It is, however, for certain purposes, necessary to distinguish them. "A principal has the right," said Bramwell, B., in R. 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 68th section of 24 & 25 Vict. c. 96. The Courts have looked not so much to the form of remuneration, whether by "commission" or "wages," as to the question whether the alleged "clerk or servant" was free to carry out the object of the employment in the manner which seemed good to him. In R. v. Bowers (d) the prisoner, who was

employed to collect orders for coals, was at and receive the money as he "thought fit."

liberty to get orders Erle, 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 agreement 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 servant.

It is essential that the subject-matter and scope of each Act in which "servant" or "agent" is found should be carefully considered in order to determine whether the former is convertible with or included under the latter. The facts in Lamb v. Attenborough (e) showed that a clerk of a wine merchant was authorized by his master to sign delivery orders in his master's name, and to receive dock warrants in his own, and that he was also authorized to pledge the warrants 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 former Factors Acts (6 Geo. IV. c. 94, and 5 & 6 Vict. c. 39), and that his master was entitled to recover dock warrants which he had fraudulently pledged with a pawnbroker as security for money lent to him (f).

Servant and Bailee.

Sometimes a bailee is loosely spoken of as a servant. Thus in Ward v. Macauley (g) 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 Story, J., " 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" (h). One technical distinction leading to important practical

(e) (1862), 1 B. & S. 831; see Hastings v. Pearson, [1893] 1 Q. B. 62.

(f) See distinctions between servant and agent stated in Wharton on Agency, 8. 20. Some of them appear fanciful,

M.

(g) (1791), 4 T. R. 489. And see per Grose, J., in Gordon v. Harper (1796), 7 T. R. at p. 12.

(h) Story on Bailment, s. 2.

D

results must be recognised. At common law a bailee, unlike a servant, is understood to have possession of property in his charge. One consequence is that a bailee, while not liable to an action for trover or trespass, can himself sue in trespass (?), while a servant, as such, cannot (k). Another consequence was that a bailee could not be guilty of larceny, inasmuch as there could not be a conversion, or in other words a wrongful change of possession (1). This has now been altered by 24 & 25 Vict. c. 96, s. 3, which enacts :

Whosoever, 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 (m), 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 was employed on a single occasion to take pigs to L., and deliver them to G., and to bring back whatever money he received from G., the drover being paid by the day, but being 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 appropriate them to his own use (»).

The question of possession arises as to chattels found by a servant. In the case of a servant, as in the case of other persons, the test is:-Had the finder a reasonable belief that the owner could be found? As to this, the place, time, and general circumstances of the finding are material; and in drawing conclusions from such evidence certain presumptions must be regarded. A water company brought an action in detinue to recover possession of two gold rings, which the defendant had found in the mud at the bottom of a pool. The plaintiffs were the owners in fee simple of the land covered by the pool, and had

(i) Gordon v. Harper (1796), 7 T. R. 9; Tancred v. Allgood (1859), 4 H. & N. 438; Mears v. L. & S. W. Rail. Co. (1862), 11 C. B. N. S. 850. Semble, he can also sue in trover by virtue of his special property and his right to possession combined: see Fowler v. Down (1797), 1 B. & P., per Eyre, C. J., at P. 47.

(k) But see Moore v. Robinson (1831), B. & Ad. 817. See Pollock & Wright on Possession (1888 edit.), p. 59.

(1) Roscoe, Criminal Evidence (13th edit.), 533. The rule did not apply to possession acquired by trespass or fraud:

R. v. Riley (1853), 22 L. J. M. C. 48.

(m) It is pointed out in Russell on Crimes (6th edit.), ii. 326, that "the distinction between a servant and bailee is still material; for although in all such cases as the preceding one (R. v. Hey, 1 Den. C. C. 602) the drover would now be punishable under the 24 & 25 Vict. c. 96, s. 3, yet he would only be punishable as for a simple larceny, whereas a servant is much more severely punishable under sect. 67."

(n) R. v. Goodbody (1838), 8 C. & P. 665; R. v. Hey (1849), 1 Den. C. C. R. 602; R. v. Cooke (1871), 1 C. C. R. 295.