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but in the sense of the ordinary menial or domestic servant." Yet even in this case, Lord Justice Thesiger added, if the Commissioners had found as a fact that the clerk was a servant or other person within the Act, the Court would not have been justified in interfering with their decision. On the other hand, in Rolfe v. Hyde (n), decided subsequently, the Court thought that the Income Tax Commissioners were justified in finding that a cashier with a salary of £200 a year, who occupied a sitting-room and bedroom on the top storey of the respondent's warehouses and counting-houses, and who slept on the premises solely as caretaker and for their protection, was "a serv
a servant or other person ” within 41 Vict. c. 15, s. 13, part 2.
(n) (1881) L. R. 6 Q. B. D. 673.
HIRING AND SERVICE AND SIMILAR CONTRACTS.
The relation of master and servant may be still further explained by distinguishing it from other legal relations which it approaches, and with which it is often confounded.
Servant and Agent. A servant is for certain purposes, and in certain circumstances, hereafter stated, the agent of his master (a). He is authorised to pledge the credit of his master in inany cases, and we shall find, so far as torts are concerned, that he is treated as the agent of the master, even for acts which the latter has prohibited, and that the master is held responsible for the acts of his servant in the course of his employment. Sometimes the terms agent and servant are used, especially in the Courts of the United States, as if interchangeable (6). It is, however, frequently necessary to distinguish them. “A principal has the right,” said Bramwell, B., in R. v. Walker (c), “ to direct what the agent has to do; a master has not only that right, but also the right to say how it is to be done.” The question most frequently arises with reference to the meaning of “clerk or servant in the 68th sect. of the 24th & 25th Vict., c. 96. The Courts have looked not so much to the form of remuneration as to the question whether the alleged clerk or servant " was free
(a) Chapter XXVI.
(6) “The two terins, master and servant,' and 'principal and agent,'
frequently, interchanged, though identical in meaning, and,
indeed, one is usually quite as exact
servant as offensive, p. 600.
to carry out the object of the employment in the manner which seemed good to him. In R. v. Bowers (d) the prisoner, who was employed to collect orders for coals, was at liberty to get orders, and receive the money as he “tbought fit.” Erle, C.J., said “A person who is employed to get orders and receive money, but who is at liberty to get those orders and receive that money where and when he thinks proper, is not a clerk or servant within the meaning of the statute. The construction of the documents decides this case. Under the first agreement the prisoner was a servant; but under the second he was at liberty to dispose of his time in the way he thought best, and to get or abstain from getting orders on any particular day as he might choose ; and this state of things is inconsistent with the relation of master and servant."
It is essential that the subject-matter and scope of each Act in which “servant” or “agent ” is found should be carefully considered in order to determine whether the former is convertible with or included under the latter. The facts in Lamb v. Attenborough (e) showed that a clerk of a wine merchant was authorised by his master to sign delivery orders in his master's name, and to receive dock warrants in his own, and that he was also authorised to pledge the warrants for the purposes of his master's business. In many respects obviously this servant was the agent of his master ; but the Court of Queen's Bench decided that he was not an agent within the Factors' Acts, 6 Geo. IV., c. 94, and 5 & 6 Vict., c. 39, and that his master was entitled to recover dock warrants which he bad fraudulently pledged with a pawnbroker as security for money lent to him (f).
(d) (1866) 1 L. R. C. C. 41 ; 35 L. J. M. Č. 206 ; see R. v. Negus (1873), L. R 2 C. C. 34 ; 42 L. J. M. C. 62, and the cases mentioned in note (h) of preceding chapter.
(e) (1862) 1 B. & S. 831,
if ) See distinctions between servant and agent stated in Wharton on Agency, s. 20.
Some of them appear fanciful.
Servant and Bailee. In its widest acceptation bailment includes contracts of hiring and service (g); and sometimes a bailee is loosely spoken of as a servant. Thus in Ward v. Macauley (h) it is said “the carrier is considered in law as the servant of the owner, and the possession of the servant is the possession of the master.” The two relations, however, are distinct, and it is frequently highly important, especially in questions of criminal law, to distinguish them. In its more limited signification bailment is, as defined by Justice Story, “a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust” (i). One technical distinction leading to important practical results must be recognised. At common law a bailee, unlike a servant, was understood to have possession of property in his charge, and the consequence was that a bailee could not be guilty of larceny, inasmuch as there could not be a conversion, or in other words a wrongful change of possession (k). This has now been altered by 24 & 25 Vict. c. 96, s. 3, which states that “whosoever, being a bailee of any chattel, money, or valuable security, shall fraudulently take or convert the same to his own use or the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny (l), and may be convicted thereof upon an indictment for larceny; but this section shall not extend to any offence punishable on summary conviction.” Where a drover who was employed on
(9) Story on Bailment, s. 423.
(k) Roscoe, Criminal Evidence, 9th Ed. 651. The rule did not apply to possession acquired by trespass or fraud ; R. v. Riley (1853), 22 L. J. M. C. 48.
(1) It is pointed out in Russell on Crimes (ii. 317), that “the distinction between a servant and bailee is
still material; for although in all such cases as the preceding one (R. v. Hey, 1 Den. C. C. 602 ; 2 C. & K. 983) the drover would now be punishable under the 24 & 25 Vict. č. 96, s. 3, yet he would only be punishable as for simple larceny, whereas a servant is much more severely punishable under s. 67.”
a single occasion to take pigs to L., and deliver them to G., and to bring back whatever money he received from G., the drover being paid by the day, but at liberty to drive the cattle of any other person, he was held not to be a servant, but a bailee, and consequently incapable of committing larceny, unless he had intended at the time of receiving the pigs to appropriate them to his own use (m). The distinction also meets one in considering the responsibility of a master for the negligence or tortious acts of a servant. Thus, in Fowler v. Lock (n), the question arose whether a cabdriver was a servant or a bailee in these circumstances : he received from a cab proprietor a cab and horse on condition that at the end of the day he should hand over 188., he retaining for himself the balance of the day's earnings; the horse's food to be supplied by the owner; and the owner to have no control over the driver after he left the yard. The horse which the cab proprietor gave was fresh from the country; it had never before been harnessed to a cab; and it ran away and injured the driver. The jury found that the horse was not reasonably fit to be driven in a cab. Byles, J., and Grove, J., were of opinion that the relation between the master and servant was that of bailor and bailee, and that the driver night recover in an action against the proprietor. Willes, J., on the other hand, thought that the relation was that of master and servant, or that of co-adventurers, and that in the absence of proof of personal negligence or misconduct on the part of the former, the latter could not recover. It has been laid down that, so far as the public are concerned, a cabdriver paid in the manner above stated is to be regarded as a servant, and that the cab proprietor will be answerable for his negligence to third persons who are injured by the latter. In two cases cited below (0), this conclusion was
(m) R. v. Goodbody (1838), 8 C. & P. 665; R. v. Cooke (1871), L. R. 1 C. C. 295.
(n) (1872), L. R. 7 C. P. 272 ; 41 L. J. C. P. 99 ; 26 L. T. 476 ; 20 W. R. 672. It will be observed
that the owner had no right to control the driver.
(0) Poules v. Hider (1856), 6 E. & B. 207; 25 L. J. Q. B. 331 ; Venables v. Smith (1877), L R. 2 Q. B. D.