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validity of an agreement by certain workmen or masters to work or not according to the decision of a majority (0). 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 (9), 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 E. & B. 47.

(P) Bacon's Abridgement, Master and Servant, N. Probably the law upon this subject has changed. It is clear that Hale (History of Pleas of the Crown, 453) and Hawkins (Pleas of the Crown, i. 85) understood that such a power existed. See also Foster's Crimipal Law, 262, and 3 Salk. 47. Such, too, seems to have been Holt, C.J.'s, ruling in Keat's Case, which was a case of master and servant. Skinner (1697), 668. Blackstone, i. c. 14, only goes so far as to say that “if the master or master's wife beat any other servant of full age, it is good cause of departure. In an anonymous case of the 28th and 29th Charles II., it was held a good answer to an action for assault and battery of one servant by another that the latter was ordered to bring the plaintiff from a conventicle. The Chief Justice and Scroggs, J., were of opinion that “a man may as well send for his servant from a conventicle as an alehouse, and may keep him from going to either of those places.

In a learned anonymous work published in 1767, entitled

"Laws concerning Masters and Servants,” p. 126, the existence of the right of correcting servants is recognised ; and the same is true of Bird's Law of Master and Servant (1801), p. 5. On the other hand, there is a passage in Fitzherbert, F. N. B., 168, to the effect that battery by the master is a good cause of departure. See also Hawkins, i. 483. Kent in his Commentaries, ii. 261, says the right of chastising “may safely be confined to apprentices and menial servants while under age, for then the master is to be considered in loco parentis."

In Regina v. Huntley (1852), 3 C. & K. 142, it was ruled by Platt, B., that one servant, even an upper servant, had no right to chastise another servant. See also Latter v. Braddell (1880), 50 L.T. 166 and 448; 43 L. T. 369 ; 29 W. R. 239.

(9) Holroyd, J., (1823), 1 B. & C. 469.

(r) Chitty's Gen. Prac, vol. i. 70a ; Gylbert v. Fletcher, Croke (4 Ch. I.), 719; Penn v. Ward (1835), 2 C. M. & R. 338; Combes' Case (1613), 9 Rep. 76a.

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 (8). 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 official log.

(s) Rhodes v. Leoch (1819), 2 Stark. 516, Agincourt (1824), 1 Hag. 271, 273; Locther Castle (1824), 384 ; Hannaford v. Hunn (1825), 2 C. & P. 148, which shows that the verdict of a court martial would not be conclusive evidence of the truth of a master's charges against a seaman.

(6) Lamb v. Burnett, 1 Cr. & J. (1831), 291, (action for assaulting seamen on board ship at anchor within two miles of Macao, and within hail of several vessels; held that the mutinous conduct of the plaintiff was a good justification). Bayley, J., uses language which seems to imply that this power exists anywhere ; but query if the vessel was in the Thames or in any English port. Enchantress (1825), i Hag. Ad., 395. The Lima

(1837), 3 Hag. 346, as to use of force to prevent mutiny.

(u) Watson v. Christie (1800), 2 B. & P. 224 ; Maclachlan's Law of Merchant Shipping, 3rd ed., 205. As to punishments of seamen for offences against discipline at sea, 17 & 18 Vict. c. 104, s. 243 ; Part Iļ. Chapter IX.

(c) 17 & 18 Vict. c. 104, s. 244. As to duty of instituting inquiry, Murray v. Moutrie, 6 C. & P. 471. See as to punishments of sailors, sec. 149 of the Merchant Shipping Act of 1854, Part II. Chapter IX.; the Regulations as to inisconduct sanctioned by the Board of Trade, July, 1869; Boyd's Merchant Shipping Acts, 138 ; and Maude and Pollock's Merchant Shipping, 4th ed., 126.

D

CHAPTER II.

DEFINITIONS OF MASTER AND SERVANT.

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

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(a) The difficulty of defining the or servant to transact ;" Stephen's relation of master and servant will Digest of Criminal Law, 220. * In a be best appreciated by considering work on the Law of Master and Ser. some of the attempts to do so. ‘A vant, published in 1767, I find the person who contracts with another to following definition: “A servant do certain work for him is the ser

to be such an one as, by vant of that other until the work is agreement and retainer, oweth duty finished, and no other person can and service to another, who, there. employ such servant to the prejudice fore, is called his master. of the first master;" Blake v. Lan. servant is one who is employed to yon (1795), 6 T. R. 222; cited with render personal service to his emapprobation by Crompton in Lumley ployer, otherwise than in the v. Gye; 2 E. & B. 226. Perhaps pursuit of an independent calling, these words, which would include and who in such service remains encontractors, were not intended as a tirely under the control and direccomplete definition. “The test is tion of the latter, who is called his very much this, viz., whether the master ; " New York Code, s. 1034. person charged is under the control, “In strictness, a servant is one who, and bound to obey the orders of his for a valuable consideration, eninaster;" Blackburn, J., in Queen gages in the service of another, and v. Negus (1873), L. R. 2 C. C. 37, undertakes to observe his direcwith reference to “clerk or servant tions in some lawful business ; in 24 & 25 Vict. c. 96, s. 68. “A Cooley on Torts, 531. “A person servant is a person subject to the who ultroneously agrees to give his command of his master as to the services to another for a determinate manner in which he shall do his time, and an ascertained hire, and work ;" Bramwell, L. J., in Yewens who may get rid of the contract by v. Noakes (1880), L. R. 6 Q. B. D. paying damages ; ” Fraser on the 532. “A clerk or servant is a person Law of Master and Servant, 3. “A bound either by an express contract person who hires his services ultroof service or by conduct implying neously to another, for a certain price such a contract to obey the orders in money, and who may get rid of and submit to the control of his the contract by paying damages ;” master in the transaction of the busi- Fraser, Personal and Domestic Relaness which it is his duty as such clerk tions (ed. 1846), ii. 367. “Volun

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(6). Similar difficulties still frequently

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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 may be rightfully exercised is his servant (Schouleron Domestic Relations, 599), which would equally apply to the relations of master and ser. vant 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 exercised, 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 Justice Bramwell, is 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 obliged 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 service for three years," included show that plaintiff, though sent servants living in a different house from the testator's house before his from that in which testator lived ; death, was considered by him to be excluded servants not hired by the in his service; held entitled). Howard year). Thrupp v. Collett (1858), 26 v. Wilson (1832), 4 Hagg. Ecc. 107 Beav. 147, 5 Jur. N. S. 111 (under (a coachman, who was originally bequest to "servants in his (testator's) hired by, and had lived for five years service at the time of his decease,' with, the testatrix, and who remained two outdoor servants continuously with her, though she changed her employed at weekly wages, entitled ; job-men, entitled, under

“ each of not so a boy employed at weekly wages my servants living with me at the in carrying letters a few months in time of my death ; the job

the year, whilst the testator was masters paid him wages, and found at his country residence, though the him in livery). Booth v. Dean (1833), boy was so employed at testator's 1 My. & K. 560 (under bequest to death). Armstrong v. Clavering

each of my servants one year's (1859), 27 Beav. 226 (a land agent wages over and above what may be and house steward, residing out of due to them at time of my decease,” the house, entitled under a bequest only “family servants, usually hired to "all my servants and day labourby the year,” and not a gardener ers who shall be in my service at the or cow-boy at weekly wages). time of my death "). Darlow y. Parker v. Marchant (1842), 1 Y &.C. Edwards (1862), 1 H. & C. 547 ; 32 290 (a person in the testator's service L. J. Ex. 51 ; 6 L. T., N. S., 905 at time of date of codicil, but who (a servant who had been wrongfully quitted it before his decease, entitled, dismissed two days before the testaunder bequest, “to the other ser- tor's death, not entitled under bequest vants”). Billing v. Ellice (1845), 9 of an annuity, “provided she shall Jur. 936 (a farm bailiff who had lived be in my service at the time of my with testator twenty-eight years, who decease"). Re Hartley's Trust, W. had £350 a-year, and who was entitled N., May 4, 1878 (legacy to M. B., to take pupils in agriculture, enti- provided she remained in testatrix's tled under is

one year's wages to each service till her death; testatrix reof my servants in my service at my moved to lunatic asylum ; M. B. death who shall have lived with me dismissed with wages in lieu of notice; five years or upwards "). Ogle v. order in lunacy directing sale of proMorgan (1852), D. M. & G. 359 perty of testatrix; M. B. not entitled (head gardener, living in one of tes- to legacy). See Jarman on Wills, tator's cottages, and not fed by him, 4th ed., vol i., p. 325 ; Williams on not “a servant in my domestic estab- Executors, ii. 1152; Redfield on tishment"). Blackwell v. Pennant Wills, vol. i., sec. 53. (1852), 9 Hare, 551 (bequest of a (6) An embroiderer servant year's wages to “servants living with or labourer within the statute, 47 me at the time of my decease, and Ed. III., f. 22; a collector of rents who shall then have lived in my not within it, 19 Hen. VI., f. 53.

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