CHAPTER VII.

HIRING AND SERVICE.

SECTION I.

CONTRACT OF HIRE AND SERVICE.

BRITISH LAWS.

tract.

Contract

need not be in writing.

A CONTRACT of hiring and service exists where there is an Definition and requisites express mutual engagement binding the parties one to employ of the conand remunerate and the other to serve for some determinate term. When it is optional for either party to carry out the arrangement, there is no contract for hiring and service (a). A contract for hiring and service need not be in writing unless it be for more than one year, and if in writing it need not be stamped, except in the case of apprenticeships. In the absence of a contract in writing, a hiring may be presumed from the fact of the service, so as to entitle the servant to claim customary and reasonable wages (b); but without an express or implied contract to pay wages, no action can be maintained for them (c). So the master is not bound to pay increased wages for increased labour unless he has engaged to do so (d).

In a covenant of hiring and service for a limited term, it is an implied agreement that the service shall continue for the term so limited, and the employer is not at liberty to dismiss his servant at pleasure. And where by such a covenant the servant becomes bound to serve, he is entitled to his remuneration, though he may never be called upon or required to do any work (e).

(a) Williamson v. Taylor, 5 Q. B. 175; Dunn v. Sayle, 5 Q. B. 685.

(b) Phillips v. Jones, 1 A. & E. 333.

(c) Foord v. Morl, Fost. & F. 496; Rex v. Thames Ditton, 4 Doug. 300.

(d) Bell v. Drummond, Peake, 45; Harris v. Watson, Peake, 76.

(e) Emmens v. Siderton, 13 C. B. ; Reg. v. Welch, 2 E. & B. 362; Pilkington v. Scott, 16 M. & W. 600.

Implied dura tion of it.

Hiring by the year, month, or week.

When wages are not settled remuneration is implied.

Payment of wages in kind prohibited.

Master not liable for ordinary injuries sustained by the workman.

The hiring may be by the year, by the month, or by the week. A hiring of a permanent nature upon annual wages is a yearly hiring, and does not expire till the termination of the year (a). A hiring at so many shillings a month or week's wages is a hiring by the month or by the week, unless there be other circumstances to show a different agreement between the parties (b).

If the amount of wages has not been settled, there is an implied promise of a customary and reasonable rate of remuneration. If it be left with the employed to determine whether or any and what wages should be paid for service rendered, no action could be maintained (c).

In contracts of hiring made with artificers, workmen, labourers, and other persons engaged or employed in mining, quarries, hardware, glass, porcelain, or in cotton, silk, and other manufactures, &c., the wages must be paid in the current coin of the realm, and not otherwise. An artificer or workman may recover his wages from his employer if not paid in the current coin, and in an action brought by a labourer for his wages no set-off is allowed for goods supplied to him by the employer, whilst the employer would have no action against his artificer or workman for goods supplied to him on account of wages (d).

The master is not responsible for injuries sustained by the servant whilst labouring in his service, although he is bound to provide for the safety of his servant in the exercise of his employment to the best of his judgment and information (e); nor is the master bound for surgical attendance to such & servant if he becomes injured whilst discharging his duties. When, however, by the negligence of the master an injury is caused to a servant in the course of his employment, the master is liable (f). The servant must undertake what he is ordered by the master to perform in the ordinary discharge of his duties, though he

(a) Fawcett v. Cash, 5 B. & Ad.

908.

(b) Rex v. Pricklechurch, 5 East, 382; Rex v. Dodderhill, 3 M. & S. 243; Rex v. Lambeth, 3 M. & S. 315.

(c) Taylor v. Brewer, 1 M. & S. 290; Moffat v. Dickson, 13 C. B.

575; Moffat v. Lawrie, 15 C. B. 583. (d) 1 & 2 W. 4, c. 37.

(e) Priestley v. Fowler, 5 M. & W. 5; Paterson v. Wallace, 23 L. J. Q. B. 249.

(f) Ashworth v. Stanwix, 30 L. J. G. B. 183; Riley v. Baxendale, 30 L. J. Ex. 87.

may decline any service from which he may easily apprehend injury to himself.

servants.

It is the duty of the servant to serve his master faithfully, Duties of diligently, and honestly, to oe obedient, and careful, and to fulfi' his duties with due skill and knowledge (a). If he disobeys of absents himself from his work, or is otherwise guilty of misconduct or disobedience, or of moral turpitude, he may be dismissed before the expiration of his term of service (b).

In case of dismissal, the servant is entitled only to the wages which have accrued during the period of actual service, but in case of a wrongful dismissal he might even recover the wages which he has been prevented from earning (c).

Rights of dismissal.

servants on

The bankruptcy of the master does no ipso facto operate as Bankruptcy a dissolution of a contract of hiring and service.

does not dissolve the contract.

SECTION II.

COMBINATION LAWS.

BRITISH LAWS.

TORY OBSER

Considerable attention has of late been bestowed on the INTRODUCsubject of wages, and on the right of workmen to combine VATIONS. among themselves and to strike or abandon their labour in case of dispute with their masters. In olden times the State misapprehending altogether the nature of wages, and the laws by which they are regulated, felt itself at liberty to fix the rates of wages by statute. It is easy to conceive how futile must every such attempt prove; but at last with a better knowledge of economical laws it was altogether abandoned. Of a similar character were our combination laws, which continued for much longer time to fill up the pages of our statute book. By a statute of Henry VI., any combination amongst workmen was made a capital offence. It was enacted by Edward VI. that if any artificer did conspire that they shall not do their work but at a certain price, or shall not take upon them to finish that which another has begun, or shall do but a certain work, at

(a) Horton v. M'Murtry, 29 L. J. Ex. 260.

(b) Turner v. Robinson, 6 C. & P. 15; Callo v. Brounceker, 4 C. & P.

513; Trotman v. Dunn, 4 Camp. 211.

(c) Smith v. Hayward, 7 A. & E. 544; Wilkinson v. Gaston, 15 L. J. C. B. 137.

or intimida

tion.

Preventing

a journeyman

certain times, every person so conspiring shall forfeit for the first offence 107., or be imprisoned for twenty days; for the second 201., or be pilloried; and for the third 40%., or be pilloried, or lose an ear, and become infamous.

Considerable change has, however, been made on this subject also, and the statute now in force (a) repealed all the laws against the combination of workmen, and simply provided against using

Using threats threats or intimidation. The principal provisions of this statute are as follows:-If any person shall by violence to the person or property, or by threats, or by intimidation, or by molesting, or in any way obstructing another, force or endeavour to force any journeyman, manufacturer, workman, or other person hired or employed in any manufacture, trade, or business, to depart from his hiring, employment, or work, or to return his work before the same shall be finished; or prevent or endeavour to prevent any from working. journeyman, &c., not being hired or employed, from hiring himself to, or from accepting work or employment from any person or persons; or if any person shall use or employ violence to the person or property of another, or threats or intimidation, or shall molest or in any way obstruct another for the purpose of forcing or inducing such person to belong to any club or association, or not having contributed, or having refused to contribute to any common fund, or to pay any fine or penalty, or on account of his not belonging to any particular club or association, or not having contributed, or having refused to contribute to any fund, or to pay any fine or penalty, or on account of his not having complied, or of his refusing to comply with rules, orders, resolutions, or regulations made to obtain an advance or to reduce the rate of wages, or to lessen or alter the hours of working, or to decrease or alter the quantity of work, or to regulate the mode of carrying on any manufacture, trade, or business, or the management thereof; or if any person shall by violence to the person or property of another, or by threats or intimidation, or by molesting, or in any way obstructing another, force or endeavour to force any manufacturer or person carrying on any trade or business, or to limit the number of his apprentices, or the number or description of his journeymen, workmen, or servants; every person so offending, or aiding,

Using violence to the person and property of another.

(a) 6 Geo. 4, c. 95.

abetting, or assisting therein, being convicted thereof in manner hereinafter mentioned, shall be imprisoned only, or shall and may be imprisoned, and kept to hard labour, for any time not exceeding three calendar months.

amongst

lawful.

This Act does not extend to subject any persons to punish- Consultation ment who meet together for the sole purpose of consulting upon workmen and determining the rate of wages or prices, which the persons present at such meeting, or any of them, shall require or demand for his or their work in any manufacture, trade, or business, or who shall enter into any agreement, verbal or written, amongst themselves for the purpose of fixing the rate of wages or prices which the parties entering into such agreement, or any of them, shall require or demand for his or their work, or the hours of time for which he or they will work in any manufacture, trade, or business; and persons so meeting for the purposes aforesaid, or entering into any such agreement as aforesaid, shall not be liable to any prosecution or penalty for so doing, any law or statute to the contrary notwithstanding.

amongst

lawful.

Nor does this Act extend to subject any persons to punish- Agreement ment who shall meet together for the sole purpose of consulting employers upon and determining the rate of wages or prices which the persons present at such meeting, or any of them, shall pay to his or their journeymen or workmen for their work, or the hours of time of working in any manufacture, trade, or business, or who shall enter into any agreement, verbal or written, among themselves for the purpose of fixing the rate of wages or prices which the parties entering into such agreement, or any of them shall pay to his or their journeymen, workmen, or servants, for their work or the hours of time of working in any manufacture, trade, or business; and that persons so meeting for the purpose aforesaid, or entering into any such agreement as aforesaid, shall not be liable to any prosecution or penalty for so doing, any law or statute to the contrary notwithstanding.

By the other sections of the statute, one justice of the peace is empowered to exercise the summary jurisdiction given by the Act, and other provisions are made as to witnesses, &c.

Under this statute it is now lawful for any class of men to combine together for any purpose whatever. A hundred bricklayers, or a hundred tailors, may combine not to work for less than a certain remuneration, or not to work more than a certain

VOL. I.