CH. XIX. s. 8. of Co. Ct. and of J. P.'s. of Wages and Rating) Act, 1880, 43 & 44 Vict. c. 16 (r), repealing sect. 13 of the Employers and Workmen Act, 1875, and itself expressly saved from repeal by the Consolidating Merchant Shipping Act, 1894, gives to the County Court, by sect. 3, juris- Jurisdiction diction to set off for damages and wages, to rescind the contract on terms, or in lieu of damages for breach of contract to order the contract to be performed by accepting security. Further, by sect. 7 a Court of summary jurisdiction is empowered to decide "disputes" (s) between employers and workmen or apprentices (t), as to wages and damages up to 10l.-a limited jurisdiction which 107. limit. in the case of a continuous breach of contract is exhausted by a single judgment (u). The Hosiery Manufacture Wages Act, 1874, 37 & 38 Vict. Hosiery. c. 48, forbids the stoppage or a deduction from wages for frame rents and charges except for bad or disputed workmanship, but this does not apply to fines (x). By the Truck Acts of 1830, 1887, and 1896, 1 & 2 Will. 4, c. 37, 50 & 51 Vict. c. 46, and 59 & 60 Vict. c. 44, the payment of wages otherwise than in coin is prohibited in the case of "workmen," defined by sect. 2 of the Act of 1887, as those to whom sect. 10 of the Employers and Workmen Act, 1875, see p. 498, sup. and n. (q), applies; excepting, however, by sect. 4 of the Act of 1831, servants in husbandry. The Acts of 1831 and 1887 did not render deductions for fines illegal (y); but the Act of 1896, by sect. 1, prohibits the contracting for deductions for fines except by published and specific contract, and unless the fine is both in respect of some act or omission likely to cause damage to the employer or interruption to his business, and fair and reasonable in amount having regard to all the circumstances of the case; or payments to a sick and accident club (z), but will apply to the giving the workman cloth damaged by him in lieu of wages (a). Truck Acts. Payment of wages in coin. wages in The Payment of Wages in Public Houses Prohibition Act, Payment of 1883, 46 & 47 Vict. c. 31, and the Coal Mines Regulation Act, public-houses. 1887, 50 & 51 Vict. c. 58, s. 11, forbid the payment of wages in public-houses, &c. The Wages Attachment Abolition Act, 1870, Attachment. (r) See also as to employment on fishing boats, Merchant Shipping Act, 1894, 57 & 58 Vict. c. 60, Part. IV. (8) Absence of workman without notice is a dispute; Clemson v. Hubbard (1876), 1 Ex. D. 179; and the jurisdiction is concurrent with, and not excluded by, the County Court; Hindley v. Haslam (1878), 3 Q. B. D. 481. () As to contracts by infants, see Evans v. Ware, [1892] 3 Ch. 502, and other cases ante, Ch. VII., sect. 4. (u) James v. Evans, [1897] 2 Q. B. 180. (x) Willis v. Thorp (1875), L. R., 10 (y) Chawner v. Cummings (1846), 8 (a) Smith v. Walton (1877), 3 C. P. D. CH. XIX. s. 8. 33 & 34 Vict. c. 30, forbids the "attachment" of the wages of Contracts of a servant, labourer, or workman, but this will not apply to a Employment (Servants). secretary of a company at 2001. a year (b). Master not mon law to servant for injuries sustained in his employ. At common law, the master was not, in general, liable in liable at com- damages to his servant, for an injury sustained by the latter, whilst employed and acting in his master's business (c), even where such injury was caused by the negligence of a fellowservant (d); though it was the master's duty to be careful that his servant was not induced to work under a notion that tackle or machinery was staunch and secure, when in fact the master knew or ought to have known that it was not; and if, from any negligence in this respect, damage arose, the master was responsible (e). And so, the master might be responsible, if he was guilty of negligence in employing an incompetent person, by whose act the mischief was caused (ƒ). Employers' Liability Act, 1880. 66 But principally on the ground of the extended meaning given by the judicial decisions to the term "fellow-servant" (g), the law of this subject has been materially amended by the Employers' Liability Act, 1880, 43 & 44 Vict. c. 42 (a temporary Act, lastly continued by the Expiring Laws Continuance Act, 1904, until Dec. 31, 1905), whereby the kinds of employment which are to be considered common" within the rule that one fellow-servant cannot recover from a master for the negligence of another are "Contracting greatly lessened in number. But an employer can contract himself out of the effect of the Employers' Liability Act by contract with his workman, and such a contract will bind the widow of the workman, and bar his claim under Lord Campbell's Act (h), and may bind an infant, if for his benefit (i). out" of the Act. Workmen's Act, 1897. In respect of specially dangerous employments the law has Compensation been still further and more definitely amended by the Workmen's Compensation Act, 1897, 60 & 61 Vict. c. 37. That Act, by sect. 7, applies only to employments Application. "On or in or about a railway, factory, mine, quarry or engineering work, or on, in or about any building which exceeds 30 feet in height, and is either being constructed or repaired by means of a scaffolding, or being demolished, or on which machinery driven by steam, water, or other mechanical power, is being used for the purpose of the construction, repair or demolition thereof.” (b) Gordon v. Jennings (1882), 9 (c) Hutchinson v. York, Newcastle and (e) Per Lord Cranworth, Paterson v. (f) Wiggett v. Fox (1856), 11 Exch. 832, 839. (g) See Priestley v. Fowler (1837), 3 M. & W. 1; Wilson v. Merry (1868), L. R., 1 Sc. & D. App. 326. The owner of a ship is still not liable for injury to a seaman caused by the master's negligence; Hedley v. Pinkney & Sons' Steamship Co., [1894] A. C. 222. (h)_Griffiths v. Earl of Dudley (1882), 9 Q. B. D. 357. (i) See p. 149, ante. In respect of these employments the Act, subject to two restrictions, fixes with liability to pay compensation to a workman personally injured, or to the "dependants" of a workman killed by accident arising out of and in the course of the employment. The restrictions are, that the employer is not liable for injury, (1) not disabling the workman for at least two weeks from earning full wages, or (2) attributable to the serious and wilful misconduct of the workman. There are also limitations to the amount of compensation payable. CH. XIX, s. 8. Contracts of Employment (Servants). labourers. The Workmen's Compensation Act, 1900, 63 & 64 Vict. c. 22, Agricultural extends the application of the Act of 1897 to the employment of workmen in "agriculture" by any employer "who habitually employs one or more workman in such employment," and defines the expression "agriculture "as including "horticulture, forestry and the use of land for any purpose of husbandry, inclusive of Gardeners, the breeding or keeping of live stock, poultry, or bees, and the &c. growth of fruit and vegetables." To come within this Act, the employment need not be for profit to the employer; "where any workman is employed by the same employer mainly in agricultural, but partly or occasionally in other work," the Act applies Part employ"also to the employment of the workman in such other work; and though the Act of 1900 is by sect. 2 to be read as one with the Act of 1897, it is not, as is that Act, confined to accidents occurring on or about the premises of the employer (k). ment. Questions under the Acts of 1897 or 1900 are decided by Arbitration. arbitration or County Courts with appeal on points of law direct to the Court of Appeal (1), as provided by County Court and Supreme Court Rules (1). (b) General Incidents of Hiring. sumed to be for wages. "It is clearly agreed, that if a person retain a servant, and Hiring preagree to pay him so much by the day, month, or year, the servant may have an action against the master on the contract, or against his executors; and that every such retainer will be presumed to be in consideration of wages, unless the contrary appear" (m). A promise by a servant to obey the lawful and reasonable Promise imorders of his master, within the scope of the services contracted plied, to obey for, is implied by law (n). (k) Smithers v. Wallis, [1903] 1 K. B. 200, C. A. (1) For further information as to the elaborate provisions of the Act of 1897, and the copious litigation to which it has led, the reader is referred to the very numerous special treatises upon the subject. See also Lely and Aggs's Agricultural Holdings, Ch. VII., and Chitty's Statutes, vol. xiv., tit. "Workmen's (m) Bac. Abr. Master and Servant, orders. CH. XIX. s. 8. Contracts of Employment (Serrants). Contract to employ, not implied from contract to serve. Contract for life valid. Domestic service- wages." Governess. Wages on dismissal-not board wages, Custom for notice in first fortnight. But where A. covenants with B., to serve him in a certain capacity for a definite time, the Court will not, from this circumstance merely, imply a covenant on the part of B. to retain A. in his employment until the expiration of that time (p). A contract by a party to remain in the service of his employer during the life of either, is valid, and is not illegal, as in restraint of trade (q), but such contract must be by deed (r). In the case of a domestic or menial servant, a general hiring— that is, a hiring without any engagement as to the duration of the service will be construed to be a hiring for a year; the service to be determinable by a month's notice (commonly called "warning") or by payment of a month's wages (with nothing additional for loss of board (s) and lodging) on the part of the employer, and by a month's notice on the part of the servant (t). A governess is not within this rule (u), but a head gardener is (x), and so is a huntsman (y), and a servant in husbandry (2). And the rule is the same, although the servant be hired under a written contract, provided it contain no evidence of an intention by the parties to exclude such rule (a). Accordingly, if a master turn away his domestic servant without such previous notice, without any fault or misconduct on the part of the servant, he is entitled to a month's wages, although there was no express contract to that effect (b); but not to board wages (c), the payment of the ordinary wages, coupled with the termination of the duty to serve, being considered sufficient compensation for the dismissal. But the month's wages are payable in such a case, not for the bygone services, but for the improper dismissal of the servant; and, therefore, they cannot be recovered upon a claim for work and labour (d). A custom in domestic service that either party may determine it at the end of the first month by notice given at any time during (1845), 14 M. & W. 112; per Cur., The (p) Aspdin v. Austin (1844), 5 Q. B. (a) Wallis v. Day (1837), 2 M. & W. 273. By the French law, "On ne peut engager ses services qu'à temps, ou pour une enterprise déterminée;" upon which Rogron observes, "On n'a pas dû permettre à un homme, de s'engager à servir toute sa vie une autre personne. Une pareille stipulation serait nulle; car elle est contraire à la liberté individuelle.” (r) Vin. Abr. 323, Master and Servant, (s) Gordon v. Potter (1859), 1 F. & F. (1834), 5 B. & Ad. 904; per Channell, J., in Moult v. Halliday, [1898] 1 Q. B. at p. 130. (u) Todd v. Kerrich (1852), 8 Ex. 151. (x) Nowlan v. Ablett (1835), 2 Cr., M. & R. 54; Johnson v. Blenkensopp (1841), 5 Jur. 870. (y) Nichol v. Greaves (1864), 17 C. B., N. S. 27. (z) Lilley v. Elwin (1848), 11 Q. B. 742. (a) Johnson v. Blenkensopp (1841), 5 Jur. 870. (b) Robinson v. Hindman (1800), 3 Esp. 235. (c) Gordon v. Potter (1859), 1 F. & F. 644, per Hill, J. (d) Fewings v. Tisdal (1847), 1 Exch. 295. the first fortnight, is, though not judicially noticeable, both reasonable and provable as a fact, so that if it be proved as a fact, but not otherwise, a Court must give effect to it. This was held on dismissing an appeal from the Westminster County Court, the judge of which had held the custom not only unproved in fact, but unreasonable, in the important case of Moult v. Halliday (e), in which an upper housemaid, after quitting upon such notice, unsuccessfully sued for a month's wages. In Moult v. Halliday also, the Court held that an alleged custom that on quitting at the end of the first month by notice in the first fortnight, the servant was entitled to have the character he came with handed over to him for transmission to his next employer, was an unreasonable custom, and this dictum, which is founded on the rule that there is no obligation upon a master or mistress to give a servant a character, would seem to have a general application. CH. XIX, s. 8. Contracts of Employment (Servants). Moult v. Custom to "hand on " character on quitting in first month. No obligation on any master to give any servant a It was ruled by Lord Kenyon, C.J., in Carroll v. Bird, that in the case of domestic and menial servants there is no law to compel the master to give the servant a character, though "by some old statutes, regulations were established respecting the characters of labourers (ƒ); and this ruling has not only never been Bird. questioned, but has always been assumed to be of universal application (g). In Ireland, by 2 Geo. 1, c. 17 Ir., the law is otherwise. character. Carroll v. A general hiring, if unexplained, will be taken to have been a General hiring for a year (h); but there is no inflexible rule of law, that hiring. a general hiring is a hiring for a year; and the question must, therefore, be considered in connection with the circumstances of each particular case (i). Thus, the fact of the servant's wages having been paid at shorter intervals than a year, may rebut the presumption of a yearly hiring (k). trade. So, if there be a usage in the particular trade, as to the time or Usage of manner of putting an end to a general hiring, such usage will be taken, in the absence of evidence to the contrary, to form part of the contract between the parties (1). (e) Moult v. Halliday, [1898] 1 Q. B. 125, per Hawkins and Channell, JJ. (f) Carroll v. Bird (1800), 3 Esp. 201. (y) See e.g., Handley v. Moffatt (1873), 21 W. R. 231, where it was held that the servant's remedy for denial of a character was enforceable on the Irish statute of 1715 only, which is to be found in the Irish Statutes Revised up to 1800, at p. 401. For offence by giving false character see the Servants' Characters Act, 1792, 32 Geo. 3, c. 56; Chit. Stat., tit. "Master and Servant." (h) Per Parke, B., Bayley v. Rimmell (1836), 1 M. & W. 506. (i) Baxter v. Nurse (1844), 6 M. & G. 935; and see Down v. Pinto (1854), 9 Exch. 327. (k) Per Cresswell, J., Baxter v. Nurse (1844), 6 M. & G. 935, 941. (1) Metzner v. Bolton (1854), 9 Exch. 518. In Powell on Printers, &c., at p. 57, it is stated that a reporter is entitled to one month's notice, a sub-editor to three, and “ an editor (according to status)" to three or six. |