employed by A. to sell goods for him was convicted of embezzlement, though at the same time he was employed by other persons in other business; and in Regina v. Carr (b) it was also held that a traveller employed by several houses might be properly convicted of embezzlement.

Nothwithstanding the decision in Quarman v. Burnett above mentioned, the Courts have in several instances held -and the tendency appears to be to hold-that a servant of A. who goes to work with B., is, in certain circumstances, to be regarded as the servant of B., so far, at least, as the liability of B. to third persons or fellow servants is concerned, He may remain the general servant of A.; but for some purposes he is also the servant of B. This is best illustrated by Rourke v. White Moss Company (c). The defendants, who were the owners of a colliery, had begun to sink a shaft, and had employed workmen, and among others the plaintiff. They entered into a contract for the completion of the work with one, Roger Whittle. He was to find and provide all labour necessary for the sinking, and the company were to provide and place at the disposal of Whittle the necessary engine power, ropes, and hoppets, with two engineers to work the engine, one for the day, and one for the night, such engineers, engine, and hoppets being under the control of the contractor. Ellis Lawrence, one of the two engineers, was in charge of the engine on the 27th of October, 1874. He was paid by the company. By the negligence of Lawrence, the plaintiff, who was one of the men employed by Whittle, was injured. The Court of Common Pleas and the Court of Appeal were of opinion that the defendants were not liable. The grounds on which the decision was placed will be stated fully subsequently. Here, however, may be quoted remarks made by Cockburn, C.J.: "It appears to me that the defendants put the engine and this man Lawrence at Whittle's disposal just as much as if they had lent both to him. But when one person lends his servant to another for

(b) (1811) R. & R. 198.

(c) (1876) L. R. 1 C. P. D. 556; 2 C. P. D. 205; see also Self v.

London & Brighton Rail. Co. (1880). 42 L. T. 173.

a particular employment, the servant for anything done in that particular employment must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the man who lent him. Looking at the present case, I think we must arrive at the conclusion that Lawrence was practically in Whittle's service at the time he was guilty of the negligence complained of: and this being so, it follows that Lawrence became the fellow-servant of the plaintiff" (d).

One may be for some purposes a servant, and for others not. A prima donna, engaged to sing so many nights, would not be for all purposes a servant; obviously she would not, for example, be a servant within the meaning of the 24 & 25 Vict. c. 96, s. 68; nor would she be bound to sing as the manager chose to direct. Yet she is so far regarded as a servant, that an action will lie for enticing her away from her employment (e). The proprietor of a cab and horse who entrusts them to a driver for the day, to be used at the driver's discretion, the latter paying a fixed sum for the cab, and all that he makes above that sum being his perquisite, does not stand in the relation of master to the driver;

(d) Chapter XXVII. It is difficult to reconcile these expressions with the remarks of Parke, B., in Quar man v. Burnett. Compare Swainson v. North Eastern Rail. Co. (1878) L. R. 3 Ex. D. 341; 47 L. J. Ex. 372; 38 L. T. 201; 26 W. R. 413. In accordance with Rourke v. White Moss Co. is Johnson v. Boston (1875), 118, Mass. 114. (Plaintiff, in the employment of T., who employed a large number of workmen in drilling and blasting rocks. Plaintiff was sent by T. to drill and blast rocks in a sewer which the defendants were constructing; the whole work was under the general supervision of the defendants' superintendent of sewers and foreman; T. paid his men $2.25 a-day, and had no power to dismiss them or give orders; the defendants paid T. $2.45 each day for each of his men when employed; the plaintiff was injured by the negligence of the defendants'

servants in not "bracing" the sewer. Held on the authority of Wiggett v. Fox, 11 Ex. 832, and Kimball v. Cushman, 3 Mass. 194, that the plaintiff could not recover, he being a fellow-servant of the servants of the defendants.) See also Stevens v. Armstrong, 6 N. Y. 435. (Defendant sent his servant to B.'s store to get a box which he had bought of P. By permission of P. the servant went to a loft for the box, and lowered it down. Through the negligence of the servant the box fell, and injured the plaintiff. The Court held that while so engaged the servant was the servant of P.) But query.

(e) Lumley v. Gye (1853), 2 E. & B. 216; 22 L. J. Q. B. 463. Compare the remarks of Lord Westbury in Knox v. Gye, L. R. 5, E. & I. Ap. 675, as to a similar ambiguity in trustee."

66

the relation is rather that of bailor and bailee. But, looking to the provisions of 6 & 7 Vict. c. 86, ss. 10, 23, 24, 27, and 28, the Queen's Bench Division have held that "as regards mischief done by the driver, who is selected by the proprietor, the relation of master and servant so far exists as to render the proprietor responsible for the acts of the driver" (f). A railway company employed under a subcontract Messrs. Chaplin and Horne to carry goods for them. A bale delivered to the railway company to be carried by them was stolen by Johnson, one of Messrs. Chaplin and Horne's servants. The question arose whether he was a servant of the railway company within the 8th section of the Carriers Act, 11 Geo. IV. & 1 Will. IV. c. 68, which says that "nothing in the Act contained shall be deemed to protect any mail contractor, stage coach proprietor, or other common carrier for hire, from liability to answer for loss or injury whatsoever arising from the felonious acts of any coachman, guard, book-keeper, porter, or other servant in his employ." It cannot be doubted that Johnson was not for all purposes the servant of the railway company. Yet the Court of Exchequer decided that Johnson was a "servant" within the meaning of the 8th section. I think," said Rolfe, B., "that a very large construction ought to be given to these words; they must be taken to mean book-keepers, porters, or other persons actually employed to do what the carrier has undertaken to do" (g). A man who employs contractors is, as a rule, not responsible for the acts of them or their servants; but it will be seen in a subsequent chapter that liability will be incurred, and they will be treated as his servants if he interfere with and direct them (h). To take another example

(f) Powles v. Hider (1856), 6 E. & B. 207; Venables v. Smith (1877), L. R. 2 Q. B. D. 279; and remarks of Grove, J., in Steel v. Lester (1877), L. R. 3 C. P. D. 126. The subject has been lately reviewed in King v. Spurr. See Chapter III.

(g) Machu v. London & S. W. R. Co. (1848), 2 Ex. 415; 17 L. J. Ex.

In reference to the same word in the 8th sect. of the Railway & Canal Traffic Act of 1854, Lord Blackburn said in Doolan v. Midland Rail. Co. (1877), L. R. 2 H. of L. 1810, the word" embraces servants as well as agents."

(h) Chapter XXVIII.

E

of the same difficulty, a person may not have been properly appointed a servant of a banking or other company, and he could not fairly contend, as a regularly appointed servant could, that he was entitled to a certain notice before being discharged; but if he were suffered to act as cashier, manager, or otherwise, the company would not be permitted to disclaim responsibility for his acts (i).

Subsequently it will be pointed out that for some purposes a volunteer is treated as a servant (j). In the chapters relating to masters' liabilities for the acts of servants, it will be seen that those who de facto perform work for another, though not under any agreement, will be treated as servants (k). This has long been recognised. "A wife, a friend, a relation, that use to transact business for a man," says Blackstone, are quoad hoc his servants" (k). In other words, though the relation of master and servant does not strictly exist, they may bind him as his agents.

Often the difficulty in ascertaining whether a person is a servant or not is one of fact.

Services are frequently rendered under circumstances which leave it uncertain whether they are done in virtue of an implied contract or out of affection and gratitude. A person goes to stay with a relative and does work for him. A boy is taken into a household out of charity and assists his benefactor. A person does work for another, who has promised or is expected to leave him a legacy (1). It is not easy to say in such cases whether or not there was an implied contract of hiring and service. It matters not that no words on the subject passed; if the understanding be that one is to do work for another and subject to his orders, the relation of master and servant will exist. Often it is not easy to know

(i) Bank of United States v. Dandridge, 2 Wheaton, 64. See also R. v. Beacall (1824), 1 C. & P. 457; Re County Assurance Co. (1870), L. R. 5 Ch. 288; and Brice on Ultra Vires, 644.

(j) Chapter XXVII.; Booth v. Mister (1835), 7 C. & P. 66 (plaintiff's car

riage injured by defendant's team; at
time of injury the team driven not
by servant of defendant, but by per-
son to whom defendant had intrusted
the reins; defendant liable).

(k) Com. 1, 418.
(1) See Chapter XIII.

whether the parties meant or understood what they did not in fact express, or expressed what they did not really mean. In the many cases which have arisen with respect to persons alleged to be clerks or servants within the meaning of 24 & 25 Vict. c. 96, s. 68, the difficulty has been chiefly one of fact; the jury have been asked to say, from the whole circumstances connected with the employment, whether the prisoner was a

servant.

So many are the acceptations of the word "servant," that no definition which will include all uses of it is possible. How it is employed in any statute can be known only by studying the language and object of the enactment. Take, for example, the phrase "servant and other person" in the 32 & 33 Vict. c. 14, s. 11. Tenements occupied as a house for the purposes of trade only, or as a warehouse for the sole purpose of lodging goods, wares, or merchandise therein, or as a shop or counting-house, or being used as a shop or counting-house, are exempted from inhabited house duties, "although a servant or other person may dwell in such tenement, or part of a tenement, for the protection thereof." Every species of servant does not come within this exception. The object of the Legislature in creating it must be considered. It was not intended that under this section a counting-house or warehouse should be used also as a dwelling-house. The respondent in Yewens v. Noakes (m) claimed exemption in respect of premises used for the purpose of his trade. A clerk in his employment at a salary of £150 a year lived on the premises in order to take care of them; he and his wife, children, and servant occupied five rooms. The Court of Appeal thought that the clerk, though a servant, did not come within the Act. "It appears to me," said Lord Justice Thesiger, "that the Legislature, in using the term 'servant,' is using that term in the ordinary and popular sense of it; that is to say, not in the sense in which any clerk or manager is called the servant of his employer, or in the sense in which the judges might be said to be the servants of the Crown,

(m) (1880) L. R. 6 Q. B. D. 530.