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arise as to who is a servant within the meaning of the many Acts in which the word occurs. Yet the Legislature has rarely attempted to define it. The above definition is not offered as perfect. The term is, in fact, used loosely and in different senses. No definition which would include all its significations in statutes, in settlement cases, in actions for seduction or for enticing away, and in wills, is possible. The word has not been employed in the same sense at different periods of history. It has been extended to relations to which it was not once applicable.
Originally the term indicated a sort of status. A servant was generally a member of his master's household. He was in a sense under his master's potestas. He is mentioned in the same context as the wife or son or daughter of the house. The relation is often described as one of allegiance (c). The statute of treason, 25 Edward III. s. 5, which enumerates various forms of treason, and which adds "there is another manner of treason (petit treason), that is to say, when a
a servant slayeth his master, or a wife her husband, or when a man, secular or religious, slayeth his prelate, to whom he oweth faith and obedience,” presupposed that master and servant stood to each other in a degree of intimacy which is not now implied. Even at the same date the use of the term has varied according to the subject matter. In actions for seduction, a person who does any trifling act of service is regarded as a servant (d). Mere casual temporary employment for a particular purpose will not suffice to make a person a servant within the meaning of some statutes (e). In the case of others this is enough (f). Servant is used, for example, in one sense in the Carriers Act (11 Geo. I. and 4 Will. IV. e. 68, s. 8) (g), and in another in the Larceny Act (24 & 25
See as to the difficulties which arose
(c) Bacon's Abridg. V. 333.
ed., 453; see, however, R. v. Hughes (1832), 1 Mood. C. C., 370.
(1) It is often used as a synonym for domestic servant, Yewens v. Noakes (1880), L. R., 6 Q. B., 538.
(g) See p. 49.
Vict. c. 96, s. 68) (h). The above definition is offered only as explanatory of a usual acceptation. No word in legal literature is more common or more ambiguous than “servant.”
(h) The following are some of the chief decisions under the statutes with respect to servant and “clerk. SERVANT
Nor SERVANTRex v. Squirc (1818), R. & R. 349, Rex v. Burton (1829), 1 M. C. C. (overseers of a township employed 237, (prisoner a clerk of chaplain who prisoner as their accountant and trea- collected the sacrament money from surer ; received and paid all money the communicants, is not the servant receivable or payable on their ac- of the incumbent, churchwardens, or count; servant or clerk within 39 poor of township within 7 & 8 Geo. Geo. III. c. 85).
IV., c. 29, s. 47). Rex v. Hughes (1832), 1 M. C. Reg. v. Walker (1858), 27 L. J., C., 370, (prisoner employed as driver M. C. 207 ; 1 Dears. & Bell, C. C. 600, to drive a cow and calf and to bring (prisoner kept a refreshment room ; back the price. He was employed employed by prosecutors to get orders to receive in one instance only ; for manure; paid by commission ; within 7 & 8 Geo. IV. c. 29, s. 47). no definite time to be spent in col
Reg. v. Tongue (1860), 30 L. J., M. lecting orders; with a view to obtain C. 49, (prisoner secretary to a money the security of guarantee society, club ; his duty to summon meetings prosecutors paid a salary of £1 a and to make out the promissory notes year). on demand and to countersign all Reg. v. May (1861), 30 L. J., M. cheques upon the treasurer ; he re- C. 81; 3 L. T., N. S. 680, (defenceived a salary)
dant employed to obtain orders for Reg. v. Macdonald (1861), 31 L. J., iron at a certain commission.
It was M. C., 67, 5 L. T., N. S., 330, his duty to account immediately to (prisoner a cashier and collector of a the prosecutors for any money he firm; he received in lieu of increase of received). salary percentage of profits ; no con- Reg. v. Bren (1863), 33 L. J., M. C. trol over business).
59 ; 9 L. T., N. S. 452, (prisoner a Reg. v. Proud (1861), 31 L. J., M.C. member of a committee formed of N. S. 71, (paid secretary of a friendly members of two friendly societies for society, whose duties were to attend the purpose of conducting a railway meetings of lodge, write minutes of excursion ; defendant and others proceedings, keep correct accounts of nominated to sell tickets ; received receipts and expenditures, &c. He no remuneration ; he did not pay was a member of the society).
over proceeds of tickets to person Reg. v. Tite (1861), L. & C. 29, appointed to receive the money). 30 L. J., M. C. 142, 14 L. T., N. S., Reg. v. Glover (1864), L. & C. 466 ; 259 (prisoner a commercial traveller 33 L. J., M. C. 169; 10 L. T., N. S. employed by prosecutors ; paid by 582 (under-bailiff of County Court, commission ; at liberty to receive not servant of high bailiff, though orders from others).
appointed by him ; servant of the Reg. v. Hastie (1863), 32 L. J., M. Court). C. 63 (secretary of a benefit society, who Reg. v. Bowers (1806), L. R., 1 C. C. had according to the rules, nothing 41 ; 35 L. J., M. C. 206 ; 14 L. T., to do with the receipt of money paid N. S. 671, (prisoner first employed as off by trustees, but who was in the agent or traveller for the sale of coals habit of receiving such money ; held at a salary of one guinea a week and that he might be convicted of em- 1s. a ton commission to collect debts. bezzlement under 7 & 8 Geo. IV. c. Subsequently on his going into the 29, s. 47).
retail trade salary stopped, and only Reg. v. Diron (1868), 11 Cox, C. C. paid by commission).
Many contracts relating to work, labour, and services do not establish the relation of master and servant. Bail
178, (prisoner engaged by U. at Reg. v. Mayle (1868), 11 Cox, C. C. weekly wages to manage a shop. U. 150, (M. employed as “ London having assigned all his estate and agent ;” po salary; perfectly optional effects to R., a notice was served on whether he obtained orders or not; prisoner to act as agent of R. in the not bound to collect on any particumanagement of the shop. For four
lar day). teen days R. received the money from Reg. v. Marshall (1870), 21 L. T. U., who continued to pay prisoner his 796 ; 11 Cox, C. C. 490 (prisoner wages during the whole period. Sub- employed by coal merchant; to receive sequently R. reconveyed the estate 1s. 4d. per ton as procuration fee, and and effects to U. But the deed was 4 per cent. for collecting, &c. ; no not registered until after the em- salary; at liberty to go where he bezzlement charged against the pri- pleased for orders). Prisoner servant of U.).
Reg. v. Negus (1873), L. R. 2 C. Reg. v. Carpenter (1869), L. R. 1 C. 34 ; 42 L. J., M. C. 62; 28 L. T. C. c. 29; 35 L. J., M. C. 169 ; 14 646 ; 21 W. R. 687 (prisoner emL. T. N. S. 572; 14 W. R. 773 (pri. ployed to solicit orders where he soner, who was elected assistant over- pleased ; and to be paid by commisseer by the inhabitants in vestry, sion ; received no salary; not to hire and subsequently appointed to that himself to others than prosecutor), office by warrant of two justices, and C. C. R. who performed the duties of overseer, Reg. v. James Hall (1875), 31 L. T. well described in an indictment for 883; 13 Cox, 49, (an accountant and embezzlement as the servant of the debt collector employed by prosecu. vestry, on the authority of Reg. v. tors to collect certain specified debts Jatis, 7 A. & E. 461).
according to his discretion ; to be Peg. v. Redford (1869), 11 Cox, C. paid by percentage ; jury found he C. 367; 21 L. T., N. S. 509 (secretary was employed as a clerk; Court for of building society who was also one Crown Cases Reserved, held finding of the trustees, servant of the trus- was wrong). tees).
Reg. v. Turner (1870), 11 Cox, C. C. 551 ; 22 L. T., N. S. 278, (prisoner employed to act as the traveller of R. E., and "diligently employ himself in going from town to town . . and soliciting orders ;" R. E. had full control over his time and services. Prisoner agreed to act as traveller ; at liberty to take orders for others, but not without prosecu. tor's written permission; to be paid by commission).
Reg. v. Bailey (1871), 24 L. T., N. S. 477 : 12 Cox, C. C. 56, (A. employed as traveller to collect money due on execution of orders, and to pay over the money every evening of the day or on the following day; he might get orders when and where he pleased, but to be exclusively in the employment of prosecutors, and to give his whole time), C. C. R.
ment, contracts of affreightments, contracts between principals and brokers or factors, clients and solicitors, differ in important respects from a contract of hiring and service. A. contracts with B. to build a wall of a specified length and height for a certain sum; A. is to be free to provide the necessary labour and materials in any manner he chooses ; B. bargains for the result of A.'s labour and skill. Though a contract for work and services, this is different from an agreement by A. to build a wall for B., subject to his directions, and to labour exclusively for him during certain hours. In English law the former is a contract of work and labour, the latter, one of hiring and service. An artist receives a commission to paint a portrait ; a journeyman painter is employed to paint coaches under the supervision of a foreman; a commissionaire is employed to go on a special errand ; a lad is hired to carry the messages of an establishment; a carrier agrees to take a parcel from one place to another; it is a man's duty to carry the goods of a certain firm and subject to their directions—these are so many instances of contracts of work and service, and contracts of master and servant. A railway company entered into a contract for the building of cars
Reg. v. Foulkes (1875), 2 L. R., C. C. 150 ; 44 L. J., M. C. 65 ; 32 L. T. 407 ; 23 W. R. 699 (prisoner assisted his father as clerk to a local board, and in his father's absence acted for him as clerk to the board ; but received no salary and was not appointed as clerk by the board. The prisoner managed for his father the raising of a loan for the board ; evidence that prisoner was a clerk or servant), C. C. R.
“It is a question for a jury, whether a person accused of embezzlement is a clerk or servant or not,” says Mr. Justice Stephen with reference to 24 & 25 Vict. c. 96, s. 68, and citing R. v. Negus, L. R. 2 C. C. 34 ; R. v. Tite, L. & C. 33 ; R. v. May, L. & C. 13, Digest 220. The question who is a servant, is not in regard to civil liability entirely one for the jury ; and in some of the above cases convictions were quashed when persons not legally servants were found to be such by juries, e.g., R. v. Hall, 13 Cox, C. C. 49. In some instances the question is one entirely for the judge, R. v. Bowers, L. R. 1 C. C. 41.
See 31 & 32 Vict. c. 116, as to larceny by joint owners.
with a certain patent improvement. The contractor had no licence to use the patent which had to be employed if the improvement were made. No action, it was held, lay against the railway company for infringing the patent, because the contractor carried on an independent business, had workshops of his own, and made the cars as he saw fit (i). Had he been subject to the directions of the company, they would have been liable for the violation of the patent, because the relation of master and servant would have then existed.
Some common tests of the existence of this relationship are not perfect. Two persons are not always respectively master and servant, because the one can discharge the other (Z). The hand which pays wages is not necessarily the master's (1). A person may be entitled to exercise control over others who work, and yet they may be not his servants, but the servants of a contractor (m). A. may be bound to give service exclusively to B., and yet he may not be for all purposes B.'s servant (n). The person who appoints or engages a servant is not necessarily the master. Though the crew of a ship are generally engaged by the captain, not the owner, they are the servants of the latter. The relation may exist between two persons, both of whom perform manual work (); and a man may be the servant of another,
(i) See Penton v. City of London Steam Packet Co. (1838), 8 A. & E. 835 ;
Recdie V. London & North Western R. Co. (1849), 4 Ex. 244.
(1) Reddie v. London & North Western R. Co.
(1) Willett v. Boole (1860), 6 H. & N. 26. The person who appoints is not necessarily master ; R. v. Callahan, 8 C. & P. (1837) 154 (Cal. lahan appointed by vestrymen of the parish ; rightly described as servant of committee of management); R. V. Jenson (1835), 1 Mood. 434 (clerk elected by managers of savings' bank; rightly described as clerk to the
trustees). See also Stone v. Cartwright (1795), 6 T. R. 411; R. v. Hoseason, (1811), 14 East, 605. See Bogg v. Pearse, (1851), 10 C. B. 534, as to public officers appointed under Acts of Parliament and to be paid out of rates.
(mn) Allen v. Hayward (1845), 7 Q. B. 960 ; 10 Jur. 92; 15 L. J. Q. B. 99. But see remarks of Denman, C. J., at p. 975.
(n) Bowen v. Hall (1881), L. R. 6 Q. B. D. 333.
(0) Ashworth v. Stanwix (1861), 3 E. & E. 701 ; Mellors v. Shaw (1861), 1 B. & S. 437.