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deduced from the language of the Metropolitan Hackney Carriage Acts (1 & 2 Will. IV. c. 22, and 6 & 7 Vict. c. 86). But in King v. Spurr (P), Grove, J., and Bowen, J., declined to hold, in accordance with certain dicta of Lord Campbell in Powles v. Hider, that these Acts necessarily created in all cases the relation of master and servant between the owner of the cab and the driver. “There is a great difference,' " said Grove, J., “between this and the case where a man hires only the cab and provides the horses himself. The difficulty is really not in the facts of Powles v. Hider, but in the language used by the judges.”

Sale and Contracts of Service. The points of resemblance between sale and certain contracts of work or labour or hiring and service are considerable. They attracted the attention of the Roman jurists, and several passages in Gaius, the Institutes, and the Digest deal with them. In the Institutes the following case is put to clear up the difficulty which arises when materials as well as labour are supplied by the artificer: “Suppose Titius agrees with a goldsmith that the latter shall make with his own gold rings of a specified weight and size for ten aurei, is the contract one of sale or hire ? Cassius says that there is a contract of sale of the materials and of hiring of the work ; but it has been decided that it is only a case of sale. If Titius had given his own gold, and a price had been fixed for the work, of course the contract must have been locatio conductio(q). The test, in short, was, Who furnished the material ? If the workman did so, then the contract was one of sale; if not the workman, the contract was one of hiring and service. This test, however, did not apply to cases in which the employer furnished one and the workman another

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part of the material; there the rule was accessorium sequitur principale (7). Nor was the test strictly applied in other cases; e.g., an architect, who agreed to erect a building, and find the materials, was said to have entered into a contract of hiring and letting, because he did not sell the soil on which the house stood, and to which it was an accessory (s).

The question possesses importance in English law for several reasons. The 17th sect. of the Statute of Frauds states that “no contract for the sale of any goods, wares, or merchandises, for the price of £10 sterling, or upwards, shall be allowed to be good except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised.” Doubts having arisen in consequence of a series of decisions, beginning with Towers v. Osborne (t) in 1724, as to whether this section extended to executory contracts-that is, contracts for future and not immediate delivery of goodsthe Legislature passed the 9 Geo. IV. c. 14 (Lord Tenterden's Act) which stated (sect. 7) that the provisions of the 17th sect. “shall extend to all contracts for the sale of goods of the value of £10 sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.” In consequence of these enactments, it is often necessary to ascertain whether a contract is for the sale of goods or for work and labour. The question has been the subject of much controversy. In Atkinson v. Bell (u), it was held that a contract for the manufacture and delivery of a machine was within the

(r) Story on Bailment, 247, Domat, 1, tit. 4, s. 7.

(s) Domat, tit. 4, 8. 7.

(t) 1 Str. 506.
(u) (1828) 8 B. & C. 277.


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statute. In Clay v. Yates (x)—an action by a printer who bad verbally agreed with the defendant to find paper for and print 500 copies of a treatise called “Military Tactics" at so much a sheet, and who declined to print the introduction, which he discovered contained libellous matter—the. question arose, whetber the contract was a contract for sale of goods within the 17th sect. of the Statute of Frauds, as extended by the 9 Geo. IV. c. 14, s. 7. The Court was of

. opinion that it was not within the statute. In his judgment, Pollock, C.B., observed, that in his view “the true criterion is, whether work is the essence of the contract, or whether it is the materials supplied. My impression is, that in the case of a work of art, whether in gold, silver, marble, or plaster, where the application of skill and labour is of the highest description, and the material is of no importance as compared with the labour, the price may be recovered as work, labour, and materials." This test has not been adhered to. In Lee v. Griffin (y), which was an action by a dentist to recover the price of two sets of teeth, this test was rejected; the correctness of the decision in Atkinson v. Bell was affirmed; and the true criterion was thus stated by Blackburn, J.: “If the contract be such that,

, when carried out, it would result in the sale of a chattel, the party cannot sue for work and labour ; but, if the result of the contract is that the party has done work and labour which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered.” This criterion would place among contracts for work and labour such contracts as those brought before the Court in Clark v. Mumford (?) (a farrier employed professionally and supplying medicine), and in Grafton v. Armitage (a) (a machinist employed by an inventor to make experiments, the former furnishing the materials), and contracts for making chattels and fixing them to the freehold (b).

(2) (1856) 1 H. & N. 73.
(y) (1861) 1 B. & S. 272.
(z) (1811) 3 Camp. 37.
(a) (1845) 2 C. B. 336 ; 15 L. J.

C. P. 20.

(6) In Benjamin on Sale, 2nd ed., p. 84, the rule is thus stated : “If the contract is intended to result in

Servant and Contractor.

The distinction between servant and contractor is, in theory, clear. It is recognised in Rapson v. Cubitt (c), Reedie v. London & N. W. R. Co. (d), Overton v. Freeman(e), Peachey v. Rowland (f), and many other cases, and important consequences hang upon it. Speaking generally, it may be said that if a person who is employed to execute work exercises an independent employment, and is not subject to control—if, e.g., a tradesman is called in by a householder to do a certain job in the way which seems best to the formerhe is a contractor not a servant. Probably the distinction cannot be put more clearly than it was by Lord Justice Brett in explaining the law to the Select Committee on Employers' Liability. “If you were to contract with a person that he and his servants should do all your work in the way you should direct his servants to do it, they are your servants; that is only a different mode of paying them; but if you contract that he and his servants should do the work in the way he thinks best, then he is a contractor" (9). Clear though the distinction appears, it is often, in practice, drawn with difficulty. The two relations approximate. In our complicated modern society, it may not be (easy to determine whether a person is a contractor or servant; and one who is the former will be treated for certain purposes as if he were the latter in the event of his being controlled and directed by the former (h).

transferring for a price from B. to A. a chattel in which A. had no previous property, it is a contract for the sale of a chattel.” A similar question arose as to the words “living by buying and selling" in 21 James I. c. 19, s. 2, and 6 Geo. IV. c. 16, s. 2. Under these statutes the Courts held that a man who sold stones from a quarry on his own estate, or bought a coal mine, and worked it, and sold the coals, did not come within the above words ; Montagu and Gregg's

Bankrupt Laws, p. 8.

(c) (1842) 9 M. & W. 710 ; 6 Jur. 606.

(d) (1849) 4 Ex. 244.

(C) (1852) 11 C. B. 867 ; 16 Jur. 21 L. J. C. P. 52 ; 3 C. & K. 49.

(f) (1853) 13 C. B. 182.
(9) 1877, vol. x. p. 123.

(h) Wood (Master & Servant, p. 601) thus distinguishes the two rela. tions : “When a person lets out work to another to be done by him, such person to furnish the labour,


Servant and Apprentice. The distinction between servant and apprentice is of less importance than it was before the repeal of the 5 Eliz. c. 4, s. 5, when apprenticeship was compulsory. That statute made it wrongful for “any person or persons, other than such as now do lawfully use or exercise any art, mystery, or manual occupation, to set up, occupy, use, or exercise any craft, mystery, or occupation now used or occupied within the realm of England or Wales, except he shall have been brought up therein seven years at the least as an apprentice, in manner and form abovesaid.” This was extended to other trades than those mentioned in the Act; and the law remained so until 1814 (i). It is still, however, occasionally necessary-for example, with reference to stampsto determine whether a contract is one of apprenticeship or hiring and service, the rights and duties under the two contracts not being in all respects the same (k). In some of the early settlement cases in which the question was considered whether a person had obtained a settlement by contract of service for a year—for example, in R. v. Bolton (1)—it was laid down that a contract of apprenticeship did not exist unless the word apprentice was used; but at all events, since R. v. Mountsorrel (m) this bas not been held essential. “No technical words," said Lord Kenyon in Rex v. Rainham (n), “are necessary to constitute the relation of

and the contractee reserving no con. trol over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant." (Action against secretary of Commissioners to improve Wicklow harbour, for placing certain piles not lighted ; defence that the defendants had committed the execution of the work to a certain contractor ; held a good defence.) Gilbert v. Halpin, 3 Ir. Jur. N. S. 300. The difficulty of distinguishing the two will be best appreciated by referring to two cases ;

Sadler v. Henlock (1855), 4 E. & B. 570, and Sproul v. Hemmingway, 14 Pick. 1.

(i) 54 Geo. III. c. 96. See remarks of Jessel, M.R., in Re Camden Chari. tics, L. R. 18 Ch. 1)., p. 325.

(k) See with respect to stamps, Chapter XI. For purposes of embezzlement Acts an apprentice is a servant ; R. v. Vellish (1805), Russ. & Ry. 80.

(?) (1783) Cald. 369.
(m) (1814) 2 M. & S. 460.
(n) (1801) 1 East, 531.

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