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It is impossible to state all the duties of masters and servants. They vary with the nature of the employment; they are regulated partly by usage; they are also laid down in a multitude of Acts of Parliament. A few of the principal duties of masters at Common Law may be here stated. They correspond to rights belonging to their servants. They are implied conditions in all contracts of hiring and service, and unless the contrary be stipulated, they are part alike of written and verbal contracts.

It is the duty of a master to pay to his servant the wages or salary agreed upon. No presumption that wages or salary is payable arises from the mere fact that services are performed or work is done for another.

It is not certain that the second of these propositions expresses correctly the purport of the authorities. They are not quite consistent. Thus, in Viner's Abridgement (a), it is said that "every such retainer (as a servant) will be presumed to be in consideration of wages unless the contrary appears.” It has been said, too, that when a man bestows his labour for another, he has a right to recover compensation for that labour (6). On the other hand, there are autho

(a) Vol. v. p. 362, citing Pinchon's (6) Poucher v. Norman (1825), 3 Case, 9 Reports, 86b (which seems B. & C. 744 (action by certificated scarcely in point). See Le Blanc J., conveyancer for work done) : “ The in R. v. Shinfield (1811), 14 East, general rule," said the Court, “is, 547.

that any man who bestows his labour

rities which go to show—and this seems the true view—that service, however long continued, creates no claim for remuneration without a bargain for it, either expressed, or implied from circumstances showing an understanding on both sides that there should be payment (c). It is highly doubtful whether there exists any presumption on the subject; if it exist, it is not irrebuttable, and it appears to be only the conclusion to which general usage and knowledge of the world warraut juries in arriving.

Service is usually performed in the expectation of receiving wages, and in most cases it would be correct, looking to usage, to say that there was an implied promise to pay them. But one may serve another out of gratitude or affection; one may intrude one's services upon another, or render them without his privity or assent. It is not uncommon for persons to work for years in the mere hope that they will be remembered by a testator in his will. A person, too, may serve for a time on the understanding that he is on probation, and that nothing is to be paid to him in the meantime. In every contract of hiring and service are presumed a request and promise to pay; but in a multitude of cases there is, in fact,


for another has a right of action to Courts against inferring a promise to recover compensation for the labour. pay from the mere fact that services There are two exceptions to that are rendered, is shown by Lamburn rule, viz., physicians and barristers." v. Cruden (1841), 2 M. & G. 253 ;

(e) Martin, B., in Reeve v. Reeve 2 Scott, N. R. 533. (Servant engaged (1858), 1 F. & F. 280, and Foord v. at a yearly salary payable quarterly ; Morley (1859), 1 F. & F. 496 ; see also about a month after the termination of Higgins v. Hopkins, note (d). Slaves one of the years of his service, he who came to this country, and who tendered his resignation ; after another bronght actions in the time of Lord month the resignation was accepted ; Mansfield and Lord Kenyon against nothing was said as to the remuneratheir masters for remuneration, were tion for the time which had elapsed always nonsuited in the absence of since the termination of the last proof of a special agreement to pay, year's service. Held that “no new Rex v. Thames Ditton (1785), 4 contract arises by implication of law Doug. 300 ; Alfred v. St. James upon a simple dissolution of a special (1799), 3 Esp.3. In the latter contract of hiring and service, in case a promise to pay wages was

respect of services performed under proved, and it might be inferred such special contract previously to that, previous to the promise, no re- its being dissolved.") See, on the muneration was intended. See as to other han Baylcyv, Rimmell (1836), the contrary doctrine in the American 1 M. & W. 506. Courts, Wood, 107. The bias of our

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neither request nor promise. Often the parties never give a thought to their legal position until their relation is ended by a quarrel or death. The question is one of fact: was there an agreement or distinct understanding that the person who does the work should be remunerated ? Obviously this can be determined only by considering the whole circumstances, the situation and relationship and condition of the parties; and the character and value of the services performed. When people do work for another with his knowledge—say, labour in his fields, or paint his house-they, as a rule, expect

, to be paid for it; the law will infer a promise to pay for such work (cd). But this is not inevitable; and the true view seems to be, that if a person “ does work on the order of another, under such circumstances, that it must be presumed that he looks to be paid as a matter of right by him, then a contract would be implied with that person" (e). This rule may not be of much assistance in determining cases as they arise; it is difficult to state any clearer rule as to the circumstances in which the law will raise an implied promise

to pay.

Work done for Relatives and Friends. Frequently, when work is done for relatives or friends, it is hard to say whether wages or remuneration is due. The difficulty is one not of law, but of fact, which it is for a jury, on a review of the whole circumstances, to settle. In several American cases, attempts are made to lay down rules of law as to the circumstances in which it is proper, and as to the relatives for whom it is right to presume that services are or are not rendered for hire. “In all cases,” says Mr. Wood, in his “Law of Master and Servant," summarising several decisions

(d) Higgins v. Hopkins (1848), 3 Ex. 166.

(e) The words of Pollock, C. B., in Taylor v. Laird (1856), 25 L. J. Ex. 329, may be quoted : “ One cleans another's shoes; what can the other

do but put thein on! Is that evi.
dence of a contract to pay for
cleaning?" See Bradshaw v. Hay.
ward (1842), Car. & M. 591 ; Slokov.
Pitminster (1726), 2 Bott. 183 ; R. v.
IV cyhill (1759), 2 Bott. 185.

"where compensation is claimed for services rendered for near relatives, as a father, brother, grandfather, &c., the law will not imply a promise, and no recovery can be had unless an express contract, or circumstances equivalent thereto, is shown” (f). “Where the parties stand to each other in the relation of members of the same family, as brothers, father and son, or father and daughter; or, if inmates of the same family, though only remotely related, there is prima fucie no implied promise to pay for labour done” (g). All attempts to lay down any rule based upon relationship are, it is submitted, futile. A son renders services to his father; a sister acts as housekeeper to a bachelor brother; a daughter remains in her father's house after coming of age, and does household work; a granddaughter goes to reside with her grandfather (h); it is impossible in such cases to determine solely from the relationship of the parties whether there is a right to payment. An endless variety of circumstances may affect the answer to the question whether there is a contract. Probably no clearer principle can be stated than that which is laid down in Davies v. Davies (i). The plaintiff and his

(f) P. 115.

(9) Ditto, p. 121. At what degree of relationship does the presumption hegin or end? Does it" extend to work done by a niece for an aunt or uncle? After much vacillation on the subject, the Scotch Courts have, according to Lord Fraser (Treatise of Master and Servant, 2nd ed., p. 21), finally adopted the view that, "when there is a clear proof of service rendered, and no wages paid, wages are due, unless it be made out that there was an agreement that the services should be gratuitous."

(h) Ridgway v. English, 22 N. J. 409 ; Davis v. Goodenow, 27 Vt. 715; Robinson v. Cushman, 2 Denio, 149.

(i) (1839) 9 C. & P. 87. The following are some decisions to the same effect : Jewry v. Busk (1814), 5 Taunt. 302. (Defendant promised to make to the plaintiff, a glazier, if he

would take care of plaintiff's house, open the windows, air it, and show it to persons who applied to see it, a handsome present, and subsequently gave him £2. Mansfield, C. J., thought there was no evidence of a contract, and that the plaintift trusted to defendant's generosity. The jury, however, gave a verdict for the plaintiff ; and the Court thought that there was evidence of a contract to do the work for a reasonable recompense). R. v. Sow (1817), 1 B. & Ald. 178. (An illegitimate child, hired for a year by the wife of the reputed father at 50s. wages, continued for three years to do work, but, after the first year, not paid wages ; held that the sessions were warranted in finding that, after the first year, she was living as a child with her father, and not as a servant with her master. See remarks of Bayley, J.) Bradshaw v. Hayward (1842), Car. & M. 591.


wife, who boarded and lodged in the house of the defendant the brother of the plaintiff, and assisted him in his business sued for reward for their services. The defendant pleaded a set off for board and lodging. In leaving the question to the jury, Mr. Justice Williams said, “Neither the services on the one hand, nor the board and lodging on the other, can be charged for, unless the jury are satisfied that there was a contract.” Such a contract must, it is submitted, be proved, in the ordinary way.

Work done by Persons of Skill in the Exercise of their

Profession. English law knows almost nothing of the difference between liberal and illiberal professions, which plays so important a part in Roman law. In the latter the liberalia studia included the professions of rhetoricians, grammarians, geometers, secretaries, librarians, schoolmasters (k); for their services no remuneration was presumed. With the exception of the service of barristers, already referred to, no such distinction exists in English law. Perhaps, indeed, a difference of fact may exist between certain kinds of skilled and unskilled labour. The latter may more often be given gratuitously. In the great inajority of instances, a person who does work and employs professional skill for the benefit of another, will be entitled to reasonable remuneration, even if there


(Action for wages by female servant against defendant, an innkeeper ; Cresswell, J., told the jury that the question was whether there was a contract of hiring or not, and allowed the defendant's counsel to examine as to whether plaintiff was not defendant's mistress, with a view to show that there was no contract of service.) Foord v. Morley (1859), 1 F. & F. 496. (Plaintiff lived with defendant as a housekeeper ; nothing said as to wages; but plaintiff received board and lodging, and

was at liberty to keep fowls, &c. Plaintiff left defendant, but returned, and nothing was said as to wages ; ruled by Martin, B., that it was for the plaintiff to establish that there was an understanding or contract as to whether she should be paid wages. See also R. v. St. Mary, 2 Boll. 275 ; R. v. Stokesley (1796), 6 T. R. 757 ; R. v. Longchatton (1793), 5 T. R. 447. As to board, Nichols v. Coolahan, 10 Met. Mass. 449.

(k) Dig. 50, 13, 1.

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