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a gang of plate-layers or rivetters is engaged through their "first-hand" to complete a job in building an iron vessel (h). The distinction between such cases as Brown v. Butterley Coal Co. (i) and Ruth v. Surrey Commercial Dock Co. (j) on the one hand, and Marrow v. Flimby (k) on the other, is sometimes very fine. In Brown v. Butterley Coal Co. (i), the plaintiff, a miner, was held to be a servant of the defendants, though he had been employed by one of the "butty-men." The chief evidence of the contract of service with the company was the fact that the defendants had drawn up certain rules, which all persons at work in the mines were bound to obey. In Marrow v. Flimby (1) a man who had entered into a contract to sink a shaft in a coalmine was held not to be a "workman" who had "entered into or worked under a contract with the defendant company; and it was also held that the control given by the Coal Mines Regulation Act, 1887, and by the special rules of the mine, to the manager over all persons in the mine did not make the sinker and his men "workmen "workmen " of the defendant company within sect. 10 of the Employers and Workmen Act, 1875.

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In the notes to that statute (m) are collected the chief cases in which the Courts have had to consider the distinction between a sub-contractor and a workman, which may be very faint, especially if the latter is paid by the piece or employs others under him to assist him. In some employments the line of distinction is almost invisible. To constitute a "workman," there must be some control over the mode of doing the work, and not merely a contract for the result.

(IV.) Contracts to perform a certain work; no control being exercised by the employer. This is the locatio-conductio operis faciendi of Roman law, and the werkvertrag of the German Code. (Articles 631-651.) Of this contract many examples are mentioned in this book.

(V) A further division may be noted-that of "undertaker " (entrepreneur, unternehmer), and employer or master.

This term has of late come into general use in political economy,

(h) In Nordhoff's "Modern California" (p. 143), is an example of this form of contract. The employer deals directly only with the foreman: "I tell him only what I want done, and settle with him alone. I complain to him and hold him alone accountable."

(i) (1885), 53 L. T. 964. (j) (1891), 8 Times L. R. 116. (k) [1898] 2 Q. B. 588. See Fitzpatrick v. Evans, [1902] 1 K. B. 505. (7) [1898] 2 Q. B. 588. See Fitzpatrick v. Evans, [1902] 1 K. B. 505. (m) Pt. ii. p. 618, infra.

and is to some extent used in law, to describe capitalists who receive remuneration for their personal services (n).

(VI.) Contracts of apprenticeship (0).

(VII.) Collective contracts; a phrase recently introduced to designate contracts which are now very common in many trades, and in which the terms as to wages and employment generally are the same for a number of persons (p).

(n) See Workmen's Compensation Act, 1897, s. 7 (2). The term "undertaker" does not appear in the Workmen's Compensation Act, 1906; though "work undertaken by the principal" is a phrase

used in sect. 4, sub-sect. (1).

(0) See p. 40, infra.

(p) Lotmar, Der Arbeitsvertrag, I., p. 756; Industrial Democracy, by Sidney and Beatrice Webb, I., p. 173.



A SERVANT is one who for consideration agrees to work subject to the orders of another (a).


Few judicial definitions of a servant are to be found in the reports. Judges have generally acted in regard to this matter on

(a) The difficulty of defining the relation of master and servant will be best appreciated by considering some of the attempts to do so. "A person who contracts with another to do certain work for him is the servant of that other until the work is finished, and no other person can employ such servant to the prejudice of the first master:" Blake v. Lanyon (1795), 6 T. R. 222; cited with approbation by Crompton, J., in Lumley v. Gye, 2 E. & B. at p. 226. Perhaps these words, which would include contractors, were not intended as a complete definition. The test is very much this, viz., whether the person charged is under the control, and bound to obey the orders of his master: Blackburn. J., in Queen v. Negus (1873). 2 C. C. R. 37, with reference to "clerk or servant "' in 24 & 25 Vict. c. 96, s. 68. "A servant is a person subject to the command of his master as to the manner in which he shall do his work:" Bramwell, L. J., in Yewens v. Noakes (1880), 6 Q. B. D. 532. "A clerk or servant is a person bound either by an express contract of service or by conduct implying such a contract to obey the orders and submit to the control of his master in the transaction of the business which it is his duty as such clerk or servant to transact: Stephen's Digest of Criminal Law, 220. In a work on the Law of Master and Servant, published in 1767, I find the following definition: "A servant seems to be such an one as, by agreement and retainer,


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oweth duty and service to another, who, therefore, is called his master." servant is one who is employed to render personal service to his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, who is called his master: " New York Code, 8. 1034. "In strictness a servant is one who, for a valuable consideration, engages in the service of another, and undertakes to observe his directions in some lawful business:" Cooley on Torts, 531. "A person who ultroneously agrees to give his services to another for a determinate time, and an ascertained hire. and who may get rid of the contract by paying damages:" Fraser on the Law of Master and Servant. "A person who hires his services ultroneously to another, for a certain price in money, and who may get rid of the contract by paying damages:" Fraser, Personal and Domestic Relations (ed. 1846), ii. 367. "Voluntary (as opposed to 'necessary') servants are those who enter into service without compulsion, by an agreement or contract, for a determinate time:" Erskine, 1, title 7, 62. "A master is one who has legal authority over another; and the person over whom such authority may be rightfully exercised is his servant" (Schouler on Domestic Relations, 599), which would equally apply to the relations of master and servant and master and slave. "A master is one who, by law, has a right to personal


the principle omnis definitio in lege periculosa est. Though important consequences, civil and criminal, hang upon the distinction between


authority over another; and such person, over whom such authority may be rightly exercised, is servant: Reeve's Domestic Relations, 399. This is open to the same objection as the last. 46 Shortly," says Lord Justice Bramwell, the relation of master and servant exists where the master can not only order the work, but how it shall be done. When the person to do the work may do it as he pleases, then such person is not a servant: Letter to Sir Henry Jackson. "A servant is one who voluntarily agrees, whether for wages or not, to subject himself at all times during the period of service to the lawful orders and directions of another in respect of work to be done: " Eversley on Domestic Relations, 907. "The relation of master and servant exists only between persons of whom one has the order and control of the work done by the other: " Pollock on Torts (6th ed.), 78. Dr. Johnson's definition is "one that attends another, and acts at his command "-a definition of medial servants. Austin makes the relation turn on the fact that either of the parties to the relation incurs obligations and acquires rights of which the objects are not determinable individually, though their kinds may be fixed: Jurisprudence ii. 976. In other words, the relation of master and servant is a certain status, a view which, though true of domestic servants, &c., does not hold good of one employed to do one act, or a similar set of acts repeatedly. See, too, R. v. Spencer (1815), R. & R. 299. "He is to be deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents, not merely in the ultimate result of his work, but in all its details:" Shearman & Redfield on Negligence, 8. 73. "In its legal acceptation it (servant) includes any one who is bound to perform services, on the authority and for the benefit of another, his master, whether these services are rendered gratuitously or for a stipulated consideration:" Sconce's Law of Master and Servant, quoted in Currie's Indian Criminal Code, 354. See Hobbes's definition, English Works, ii. 109.

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As to the meaning of "servant' in Wills, see Jones v. Henley (1685), 2 Rep. Ch. 162 (legacy "to all my servants. Only those entitled who, being menial servants, were in testator's service be


fore the making of the will and remained in his service till his death). Townshend v. Windham (1706), 2 Vern. 546.


Stewards of Courts, and such who are not obliged to spend their whole time with their master, but may also serve any other master not within bequest to "such of my servants as shall be living with me at the time of my death; cf. Armstrong v. Clavering, infra, in this note. Sleech v. Thorington (1754), 2 Ves. Sen. 560 (bequest to "the three servants that shall live with me at the time of my death;" testatrix had three at time of death; all included). Chilcot v. Bromley (1806), 12 Ves. 114 (bequest to "all my other servants who shall be living with me at the time of my decease" did not include a coachman provided with carriage and horses by a job-master, though returned by testator as his coachman under Acts imposing duty on male servants). Herbert v. Reid (1810), 16 Ves. 481 (legacy to plaintiff if in his service" at time of testator's death; parol evidence to show that plaintiff, though sent from the testator's house before his death, was considered by him to be in his service; held entitled). Howard v. Wilson (1832), 4 Hagg. Ecc. 107 (a coachman, who was originally hired by, and had lived for five years with, the testatrix, and who remained with her, though she changed her job-men, entitled, under "each of my servants living with me at the time of my death"; the job-masters paid him wages, and found him in livery). Booth v. Dean (1833), 1 My. & K. 560 (under bequest to "each of my servants one year's wages over and above what may be due to them at time of my decease," only "family servants, usually hired by the year," and not a gardener or cow-boy at weekly wages). See Breslin v. Waldron (1855), 4 Ir. Ch. 333. Parker v. Marchant (1842), 1 Y. & C. 290 (a person in the testator's service at time of date of codicil, but who quitted it before his decease, entitled, under bequest "to the other servants"). Bulling v. Ellice (1845), 9 Jur. 936 (a farm bailiff who had lived with testator twenty-eight years, who had 3507. a year, and who was entitled to take pupils in agriculture, entitled under "one year's wages to each of my servants in my service at my death who shall have lived with me five years or upwards"). Ogle v. Morgan (1852), 1 D. M. & G. 359 (head gardener, living in one of testator's cottages, and not

servant and contractor, servant and bailee, servant and agent, servant and partner, Courts have, as a rule, abstained from defining the relation of master and servant. They have been content to deal with each case as it arose. For hundreds of years the word or similar terms have been used in statutes. Difficulties arose as to its meaning in one of the first Acts in which it appears, the 25 Edw. III. st. 2, s. 1 (b). Similar difficulties still frequently arise as to who is a servant within the meaning of the many Acts in which the word occurs. In consequence, no doubt, of this ambiguity, some modern statutes (c) use and define such terms as "employer" and "workman." The above definition is not offered as perfect. The term is, in fact, used loosely and in different senses. No definition

fed by him, not "a servant in my domestic establishment "). Blackwell v. Pennant (1852), 9 Hare, 551 (bequest of a year's wages to "servants living with me at the time of my decease, and who shall then have lived in my service for three years," included servants living in a different house from that in which testator lived; excluded servants not hired by the year). Thrupp v. Collett (1858), 26 Beav. 147 (under bequest to "servants in his (testator's) service at the time of his decease,' two outdoor servants continuously employed at weekly wages, entitled; not SO a boy employed at weekly wages in carrying letters a few months in the year, whilst the testator was at his country residence, though the boy was so employed at testator's death). Armstrong v. Clavering (1859), 27 Beav. 226 (a land agent and house steward, residing out of the house, entitled under a bequest to "all my servants and day labourers who shall be in my service at the time of my death"). Re Serres's Estate, Venes v. Marriott (1862), 31 L. J. Ch. 519 (legacy to claimant "in case she shall be in my service at my decease ; testator removed to lunatic asylum; claimant voluntarily quitted the house receiving wages for one year; testator died within that year; claimant not entitled to legacy). Darlow v. Edwards (1862), 1 H. & C. 547 (a servant who had been wrongfully dismissed two days before the testator's death, not entitled under bequest of an annuity, “provided she shall be in my service at the time of my decease"). Re Hartley's Trust, (1878) W. N. 104 (legacy to M. B., provided she remained in testatrix's service till her death: testatrix removed to lunatic asylum; M. B. dismissed with wages in lieu of notice; order in lunacy


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directing sale of property of testatrix; M. B. not entitled to legacy). In re Benyon, Benyon v. Grieve (1884), 32 W. R. 871 (to each of my servants who shall at my death have been in my service twelve calendar months or longer, one year's wages, . . . and to my gardener, P. G., 3007. in addition." P. G. left service three years before testator's death; not entitled to (one year's wages or) 3007.). In re Marcus, Marcus v. Marcus (1887), 56 L. J. Ch. 830 ("my office and warehouse employés such as clerks and workmen, shall have to receive six months' full salary." This means employés in testator's service at the time of his death). Re Drax, Savile v. Yeatman (1887), 57 L. T. 475 (legacies to each of my household servants": held, a coachman living in a cottage adjoining the pleasure grounds and two grooms occupying rooms over the stables close to the house not included). In re Sharland, Kemp v. Rozey, [1896] Ch. 517 (bequest to each man who shall have been in my employ over ten years." D., who had been in testator's service fifteen years, but was not in it at the date of the will, or at the time of the death, held entitled). See Jarman on Wills (5th ed.), vol. i. p. 305; Williams on Executors (9th ed.), vol. ii. p. 1007; Redfield on Wills, vol. i. sec. 53.


(b) An embroiderer a servant or labourer within the statute, 47 Edw. III. f. 22; a collector of rents not within it, 19 Hen. VI. f. 53. See as to the difficulties which arose as to what servants could be punished for petty treason, 1 Hale P. of C 380.

(c) See Employers and Workmen Act, 1875, s. 10; Employers' Liability Act, 1880; Truck Act, 1887; Workmen's Compensation Act, 1906; Trade Disputes Act, 1906.

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