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Page 164. By Apportionment Act, 1870, 33 & 34 Vict. c. 35, s. 2, salaries are
183. To authorities in note (d) add Eaton v. Western.
184. Eaton v. Western is reported in L. R., 9 Q. B. D. p. 636. Speaking of Royce v. Charlton, Jessel, M.R., says: "I think that case was not rightly decided, and we decide the present case on the first point with the understanding that in effect it overrules Royce v. Charlton." Sir James Hannen observed: "There is a broad distinction between this case and that of an apprentice taken into the house. In the latter case, I am inclined to think that the master would be entitled to take the apprentice with him if he removed to another place, and that it would be beyond the power of the apprentice to refuse to go. The case also decides that there was no breach of the covenant to serve the firm, inasmuch as the firm was split up into two firms, one carrying on the manufacturing part of the business at Derby, and the other the repairing and agency part of the business in London. "The apprentice looked to the advantage of being educated in a firm carrying on the business in its entirety, and he is entitled to see the business of buying and selling as well as the mere manufacturing." 193. See Breen v. Cooper (1869), 3 Ir. C. L. 62, as to special damage for dismissal.
198. See May v. Thomson, L. R. 20 Ch. D. 705; 47 L. T., N. S. 295 as to specific performance of contract for sale of medical practice.
223. In note (d) for "is not," read "is not often."
227. Coventry v. Windal (1615), Brown. 67. A man cannot compel an apprentice (to a surgeon) to go beyond seas except he go with him, "but clearly he might send his apprentice to Chester, or any other part of England."
231. See Gunter v. Astor (1819), 4 Moore 12, as to damages for enticing away servant.
482. As to the meaning of "employed," see Beadon v. Parrot (1871), L. R. 6 Q. B. 718, where it was held that the respondent had committed the offence of employing a child within sections 6 & 7 of 30 & 31 Vict. c. 146, though the respondent had no interest in the proceeds of the sale of the child's work, and though the materials were supplied by the child's mother.
Page 545. Saunders v. Crowford, has been overruled by Winyard v. Toogood, W. N., Dec. 23, 1882, p. 187; Times, Dec. 20, 1882; Solicitor's Journal, Dec. 23, 1882.
664. McGiffin v. Palmer's Shipbuilding Co. is reported in 47 L. T. N. S. 346, where Field, J., says the "defect" must be "something in the permanent condition" of the way.
666. Bunker v. Midland Rail. Co., Law Times, Dec. 16, 1882; Solicitors' Journal, Dec. 16, 1882 (plaintiff, a van guard, ordered by foreman to drive a van to B. market, and injured in so doing; plaintiff could not recover damages, inasmuch as the order was not, by the defendants' rules, one to which he was bound to conform).
670. Munday v. Thames Iron Works Co. is reported in 47 L. T., N. S. 351. "The liability of employers is considerably increased, and if the Legislature had intended that workmen should have a double remedy, I think we should have found something in the Act to indicate it." -Manisty, J,
THE LAW OF
THE relation of Master and Servant is created by contract. Their duties to, and rights against, each other arise out of contracts, express or implied. The only exceptions are duties and rights created by statute (a).
This is a statement of the law of Master and Servant as it is and as it has long been; and abundance of authority in support of these propositions will be found in this book. But labourers and workmen were not always free to make contracts with their masters. Services were not performed and exacted in virtue of any agreement. Traces of serfage are said to be still found in the law of Master and Servant. It may be well to preface the description of the law as it is with a short history of its growth.
Serfage or villenage is an early English institution; even slavery once existed in this country. The ceorl of early times-who corresponded to the liten, leten, lazzen, aldien, aldionen of old German society-was not exactly a
(a) See Austin's Jurisprudence, vol. i., p. 396, and vol. ii., p. 970, as to certain peculiarities of the Law of
Master and Servant. Out of the relation grow not only rights in personam, but rights in rem.
slave. Nor was he in all respects a freeman; he had some of the qualities of both (b). His condition varied at different times; but it seems to have been always better than that of the slave or even of the villain as described by Bracton. His social rank was not fixed. He might purchase his freedom (c). He might acquire property and become a thane. He might possess slaves of his own, and he had rights over the common land of the township (d). Sometimes, at all events, he had the choice of a master; and the wehrgeld or blood money to be paid by one who killed him, did not differ very much from the fine paid by the slayer of a freeman (e). "The ceorl," says Mr. Freeman, "like the ancient Greek citizen, though he might be looked down upon by an aristocratic class, was actually a privileged person as compared with a large number of human beings in his own city or district" (f). But the theows, who were the other branch of the servile class before the Conquest, were really slaves. They were fixed to the soil, so that when it was sold they were sold also (g). They might be beaten and imprisoned by their masters; they were freely bought and sold; they had no wehrgeld, at all events none payable in the event of their being slain by their own masters (h), whose property they were; wrongs done to a theow were wrongs done to his owner. Though the sale of slaves abroad was prohibited, the prohibition was habitually
(b) Waitz's Verfassungsgeschichte, vol. i., p. 176. As to the lat and ceorl, see Green's History of the English People, vol. i. 11.
(c) Thorpe's Diplomatarium Anglicum, xviii.; Stubbs' Constitutional History, vol. i. 79. Kemble thinks that even the slaves could redeem themselves in later periods. The Saxons in England, vol. i. 212.
(d) Stubbs, vol. i. 81, 155, 162, ii. 453. The ceorl seems generally to have possessed land.
(e) Stubbs, vol. i. 161.
(f) Norman Conquest, i. 88.
obscure, and great differences between the authorities exist. See Stubbs' Constitutional History, vol. i. 78; Lappenberg, ii. 320; Gierke's Genossenschaftsrecht; Waitz's Verfas sungsgeschichte, vol. i. 176; Von Maurer, Geschichte der Fronhöfe, i. 12. Compare with the distinction between ceorls and theows the account of certain slaves given by Tacitus in his Germania, c. 24 and 25.
(h) There is a difference of opinion on this point: Lappenberg, ii. 321; Cobb on Slavery, cxxiii. ; and Kemble, i. 209.
broken. The Church manumitted many slaves, and strove to improve the lot of others; and evidence exists of the frequency with which wealthy landowners freed their bondmen pro salute animarum. Such laws as Elfred's, which declared that, if any one should in future buy a Christian slave, the time of his servitude should be limited to six years, may have diminished the number of slaves in England (i). But the institution itself survived; and the laws of Ethelstan and Edmund bearing upon slavery are singularly harsh and cruel. Before and, indeed, after the Conquest, English slaves were much in demand in Ireland. Bristol was a favourite mart to which Danes, and especially Irish, resorted in order to purchase young Englishmen and English women (k). Famine often drove freemen to sell themselves and their children into captivity; they "sold their heads for meat in the evil days" (l). Men became slaves because they had committed grave crimes, and were unable to pay the wehrgeld due to those whom they had wronged. Slavery was sometimes the penalty paid by fugitives who availed themselves of the right of asylum; and the never-ending succession of wars between Danes, Mercians, and West Saxons, helped to recruit the servile class. According to Domesday Book there were about 25,000 servi or theows, and 108,000 villani or ceorls at the time when the Survey was made (m).
In Domesday many varieties of bondmen (n) are mentioned;
(i) Stevenson's preface to Chronicon Monasterii de Abingdon, 2, li. and lxi. (k) Seyer's Memoires of Bristol, vol. i. 319. Eden in his History of the Poor, i. 10, mentions a law passed in 1102, prohibiting the sale of men in market, which hitherto hath been the common custom in England." See the laws of William the Conqueror in Thorpe's Collection.
(1) Homo xiii. annorum sese potest servum facere, Theod. Pœnit. xix. s. 29, quoted in Stevenson's preface, li. See also Kemble, vol. i. 197; Stubbs, vol. i. 78.
(m) Turner, iii., 256, estimates the
total population before the Conquest at 2,000,000.
(n) Mention is made among other classes of villani integri and villani dimidii. Sir Henry Ellis's introduction to Domesday. The latter phrase is sometimes translated villains in gross-a term which does not, so far as I know, occur in Bracton, Fleta, Britton, or the Mirror. distinction clearly drawn in Littleton between villains in gross and villains regardant, does not seem to have been closely adhered to in practice. See Boldon Book, Surtees Society, Appendix, lxx. and Stubbs,