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validity of an agreement by certain workmen or masters to work or not according to the decision of a majority (o). It is said, however, that there is one distinct exception to the principle that purely servile incidents cannot be attached to a contract of hiring; a master may, it is said, chastise a hired servant (p). Notwithstanding dictu to be found to this effect, it is improbable that such a right would be admitted in modern times. The authorities in favour of it are old. Some of them referred to the relation of lord and villain ; such a right does not flow from the contract of hiring and service as now understood; usage is wholly against the existence of so dangerous a power; and there are dicta—in Winstone v. Linn (7), for example-against it. On the other hand, a master may chastise his apprentice for negligence or disobedience, provided it be done moderately (r). The apprentice is placed with the master to be instructed;


(0) Hilton v. Eckersley (1856), 6 “ Laws concerning Masters and SerE. & B. 47.

vants,” p. 126, the existence of the (P) Bacon's Abridgement, Master right of correcting servants is recogand Servant, N. Probably the law nised ; and the same is true of Bird's upon this subject has changed. It is Law of Master and Servant (1801), clear that Hale (History of Pleas of p. 5. On the other hand, there is a the Crown, 453) and Hawkins (Pleas passage in Fitzherbert, F. N. B., 168, of the Crown, i. 85) understood that to the effect that battery by the such a power existed. See also master is a good cause of departure. Foster's Criminal Law, 262, and 3 See also Hawkins, i. 483. Kent in Salk. 47. Such, too, seems to have his Commentaries, ii. 261, says the been Holt, C.J.'s, ruling in Keat's right of chastising “may safely be Case, which was a case of master and confined to apprentices and menial servant. Skinner (1697), 668. Black- servants while under age, for then stone, i. c. 14, only goes so far as to the master is to be considered in loco say that “if the master or master's parentis." In Regina v. Huntley wife beat any other servant of full (1852), 3 C. & K. 142, it was ruled age, it is good cause of departure. by Platt, B., that one servant, even In an anonymous case of the 28th an upper servant, had no right to and 29th Charles II., it was held a chastise another servant. See also good answer to an action for assault Latter v. Braddell (1880), 50 L.T. 166 and battery of one servant by another and 448 ; 43 L. T. 369 ; 29 W. R. that the latter was ordered to bring 239. the plaintiff from a conventicle. The (9) Holroyd, J., (1823), 1 B. & C. Chief Justice and Scroggs, J., were 469. of opinion that “a man may as well (7) Chitty's Gen. Prac, vol.i. 70a ; send for his servant from a conven- Gylbert v. Fletcher, Croke (4 Ch. I.), ticle as an alehouse, and may keep 719; Penn v. Ward (1835), 2 C. M. him from going to either of those & R. 338; Combes' Case (1613), 9 Rep. places." In a learned anonymous

76a. work published in 1767, entitled

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. Another exception exists in the case of a master of a ship. 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 (s). The power may be exercised not merely when the ship is at sea and beyond the reach of assistance (t). 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 (u), and will be liable to an action. Due inquiry should be made before punishment is inflicted (x). 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

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() Rhodes v. Leach (1819), 2 Stark. (1837), 3 Hag. 346, as to use of force 516 ; Agincourt (1821), 1 Hag. 271, to prevent mutiny. 273; Louther Castlc (1824), 384 ; (u) Watson v. Christie (1800), 2 B. Hannaford v. Hunn (1825), 2 C. & & P. 224 ; Maclachlan's Law of P. 148, which shows that the verdict Merchant Shipping, 3rd ed., 205. of a court martial would not be con- As to punishments of seamen for clusive evidence of the truth of a offences against discipline at sea, 17 master's charges against a seaman. & 18 Vict. c. 104, s. 243 ; Part II.

(1) Lamh v. Burnett, 1 Cr. & J. Chapter IX. (1831), 291, (action for assaulting (C) 17 & 18 Vict. c. 104, s. 244. seamen on board ship at anchor As to duty of instituting inquiry, within two miles of Macao, and within Murray v. Moutrie, 6 C. & P. 471. hail of several vessels ; held that the See as to punishments of sailors, mutinous conduct of the plaintiff sec. 149 of the Merchant Shipping was a good justification). Bayley, J., Act of 1854, Part II. Chapter IX.; the uses language which seems to imply Regulations as to misconduct sanc. that this power exists anywhere ; but tioned by the Board of Trade, July, query if the vessel was in the Thames 1869 ; Boyd's Merchant Shipping or in any English port.

Enchantress Acts, 138; and Maude and Pollock's (1825), i Hag. Ad., 395. The Lima Merchant Shipping, 4th ed., 126.


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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 the principle omnis definitio in lege periculosa est. Though important consequences, civil and criminal, hang upon the distinction between 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. s. 1 (b). Similar difficulties still frequently


(a) The difficulty of defining the relation of master and servant will be best appreciated by considering some of the attempts to do so. 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. Lan. yon (1795), 6 T. R. 222 ; cited with approbation by Crompton in Lumley v. Gye ; 2. E. & B. 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 inaster ;' Blackburn, J., in Qucen v. Negus (1873), L. R. 2 C. C. 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), L. R. 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, oweth duty and service to another, who, therefore, is called his master. “A 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, s. 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, 3. “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. “Volun



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tary (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 inay 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. master is one who, by law, has a right to persoual authority over an. other; and such person, over whom such authority may be rightly exer. cised, is servant ; Reeve's Domes. tic Relations, 399. This is open to the same objections as the last. In Gibbon's Law of Contracts of work and service it is said that the relation of master and servant is a contract "whereby one man lets his personal services to another, either for a particular purpose or generally, and by which the servant is bound to do as much as he himself can towards the performance of the work for which he is engaged "-a definition which seems to include some unnecessary ele. ments. “Shortly,” says Lord Jus. tice 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. Dr. Johnson's definition is “one that attends another, and acts at his command —which is most applicable to menial 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

a servant employed to do one act, or a similar set of acts repeatedly; see, too, R. V. Spencer, 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 ou Negligence, s. 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.

In consequence, no doubt, of the ambiguity of the phrase "master and servant,” modern Acts have made use of such terms as "employers and workmen (see sec. 10 of 38 & 39 Vict. c. 90), or have defined what they meant by contracts of service (see 30 & 31 Vict. c. 141).

As to the meaning of " servants" in wills, see Townshend v. Windham (1706), 2 Vern. 546. " Stewards of Courts, and such who are not oblige to spend their whole time with their master, but also may serve any other master” not within bequest to "such of my servants as shall be living with me at the time of my death. 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

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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, thougli she change 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

cow-boy at weekly wages). Parker v. Varchant (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”). Billing v. Ellice (1845), 9 Jur. 936 (a farm bailiff who had lived with testator twenty-eight years, who had £350 2-year, and who was entitled to take pupils in agriculture, entitled under one year's wages to each of iny servants in my service at my death who shall have lived with me five years or upwards”).

Oyle v. Morgan (1852), 1 D. M. & G. 359 (head gardener, living in one of testator's cottages, and not fed by him, not "a servant in my domestic estabTishment”). 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, 5 Jur. N. S. 111 (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 Clarering (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”). Darlow y. Edwards (1862), H. & C. 547 ; 32 L. J. Ex. 51 ; 6 L. T., N. S., 905 (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"). R. Hartley's Trust, W. N., May 4, 1878 (legacy to M. B., provided she remained in testatrix's service till her death; testatrix removeal to lunatic asylum: M. B. dismissed with wages in lieu of notice; order in lunacy directing sale of property of testatrix; M. B. not entiiled to legacy). See Jarman on Wills, 4th ed., vol i., p. 325 ; Williams on Executors, ii. 1152; Redfield on Wills, vol. i., sec. 53.

(6) An embroiderer servant or labourer within the statute, 47 Ed. III., f. 22; a collector of rents not within it, 19 Hen. VI., f. 53.


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