MEANING OF TERMS.-The words "Master" and "Servant" have never received a judicial construction sufficiently wide to cover all the senses in which they are used. The following definitions have been suggested. “A 'servant' is a person who voluntarily agrees, whether for wages or not, to subject himself at all times during the period of service to the lawful orders and directions of another in respect of certain work to be done. A 'master' is the person who is legally entitled to give such orders and have them obeyed" (Eversley, Domestic Relations, 2nd ed. p. 821). "A servant is a person bound either by an express contract of service or by conduct implying such a contract, to obey the orders and submit to the control of his master in the transaction of the business which it is his duty as such servant to transact" (Stephen, Digest of the Criminal Law, 5th ed. p. 271). The different constructions put upon the word "servant" in the following statutes will be found in the references given. The Carriers Act 1830, 11 Geo. IV. and 1 Will. IV. c. 68 (Machu v. L. & S.-W. R. Co., 1848, 2 Ex. 415; Stephens v. L. & S.-W. R. Co., 1886, 18 Q.B.D. 121). The Railway and Canal Traffic Act 1854, 17 & 18 Vict. c. 31 (Doolan v. Directors of M. R. Co., 1877, 2 App. Cas. 792). Customs and Inland Revenue Acts (Yewens v. Noakes, 1880, 6 Q.B.D. 530; Rolfe v. Hyde, 1881, ibid. 673; Weguellin v. Wayall, 1885, 14 Q.B.D. 838; London Library v. Carter, 1890, 62 L.T. 466). By the Customs and Inland Revenue Act 1881 (44 & 45 Vict. c. 12, s. 24) the term "servant" used in the Customs and Inland Revenue Act 1878, s. 13 (2) “shall be deemed to mean and include only a menial or domestic servant employed by the occupier." The Larceny Act 1861, 24 & 25 Vict. c. 96, s. 68 (R. v. Tite, 1861, L. & C. 29; R. v. M'Donald, 1861, ibid. 85; R. v. Bowers, 1866, L.R. 1 C.C.R. 41; R. v. Tyree, 1869, ibid. 177; R. v. Negus, 1873, L.R. 2 C.C.R. 34; R. v. Foulkes, 1875, ibid. 150; R. v. Harris, 1893, 17 Cox C.C. 656; R. v. Stuart [1894], 1 Q.B. 310).

The relation between a master and his servant is based on contract. The Legislature has by a series of enactments imposed certain conditions. and liabilities on this contractual relationship. In an article such as the present it is impossible to deal with all these statutes, but the substance of the most important is dealt with throughout the article.

CLASSES OF SERVANTS.-Servants may be either (1) menial; (2) workmen not in domestic employment; and (3) apprentices. This last class

is not here dealt with. The distinction between menial and other servants is important in cases of legacies to servants, and also as affecting the master's right to terminate the contract, for which see infra. Menial servants include domestic servants such as indoor servants doing household acts under the control of the master. The term has also been held to include a head gardener (Nowlan v. Abbott, 1835, 2 C.M. & R. 54; Johnson v. Blenkensopp, 1841, 5 Jur. 870); a huntsman (Nicoll v. Graves, 1864, 33 L.J.C.P. 259), and a potman (Pearce v. Lansdowne, 1893, 62 L.J.Q.B. 441). A farm bailiff (Reg. v. Wortly, 1851, 21 LJ.M.C. 44; Louth v. Drummond, 1849, cited Smith, Master and Servant, p. 67); a governess (Todd v. Kellage, 1852, 22 L.J.Ex. 1); the housekeeper of a hotel (Lawler v. Linden, 1876, Ir. Rep. 10 C.L. 188), and a steward (Forgan v. Burke, 1861, 12 Ir. C.L. Rep. 495), have been held not to be menials.

PARTIES TO THE CONTRACT.-As stated above the contract of service is part of the ordinary law of contract, and any person capable of contracting can enter into a contract of service. It may be well to notice here that an infant is bound by a contract which, taken as a whole, is beneficial to himself. For instances of such contracts see Wood v. Fenwick, 1842, 10 Mee. & W. 195; Leslie v. Fitzpatrick, 1877, 3 Q.B.D. 229; Walter v. Everard [1891], 2 Q.B. 369; Evans v. Ware [1892], 3 Ch. 502; Clements v. L. & N.-W. Ry. [1894], 2 Q.B. 482; Green v. Thompson [1899], 2 Q.B. 1. Where, however, the contract is to the detriment of or is unfair to the infant, it is voidable on his part. Examples of such contracts will be found in R. v. Lord, 1848, 12 Q.B. 757; Meakin v. Morris, 1884, 12 Q.B.D. 352; De Francesco v. Barnum, 1890, 45 Ch.D. 430; Corn v. Matthews [1893], 1 Q.B. 310; Flower v. L. & N.-W. Ry. [1894], 2 Q.B. 65. A stipulation for the payment of penalties by an infant vitiates the whole contract. partner of a firm has an implied authority to bind the firm in contracts made for the hire of servants for the partnership business (Beckham v. Drake, 1841, 9 Mee. & W. 79).

A

THE CONTRACT.—The contract of service may be verbal or written, or may be implied from the conduct of the parties. It must be borne in mind, however, that by section 4 of the Statute of Frauds no action shall be brought to charge any person upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement or some memorandum or note thereof shall be in writing, signed by the party to be charged or some other person therunto by him lawfully authorised. The statute does not apply to contracts which may be performed within a year, unless it appears by the whole tenor of the agreement that it is to be performed after the year (Peter v. Compton, Skinn. 353, and the notes to that case, 1 Smith's L.C., 11th ed. p. 316). The statute, moreover, does not apply to cases where all that is to be done by one party can be done within the year (Donnellan v. Read, 1832, 3 B. & Ad. 899, and 1 Smith's L.C., 11th ed. pp. 318 et seq.).

Corporations, whether trading or not, must as a rule contract under seal. Trivial contracts of everyday occurrence have, however, been held not to come under this rule. Under this rule and exception a distinction has been made between salaried officers and inferior servants. The former, such as a rate collector (Smart v. West Ham Union, 1855-6, 10 Ex. 867; 11 Ex. 867) and a medical officer (Dyke v. St. Pancras Guardians, 1863, 27 L.T. 342), must have a contract under seal in order to have a binding contract with their corporations, enabling them to sue for their salaries. In Austin v. Guardians of St. Matthew, Bethnal Green, 1874, L.R. 9 C.P. 91, a clerk to the master of a workhouse, employed to keep the books at a

salary of £52 a year with board and lodging, was held to be within the rule and not the exception. Inferior servants are, however, within the exception, and their agreements may be verbal or in writing not under seal (Mayor of Ludlow v. Charlton, 1840, 6 Mer. & W. at p. 822; Smith v. Cartwright, 1851, 6 Ex. 927. Contracts by trading companies within the ordinary course of their business need not be under seal (South of Ireland Colliery Co. v. Waddle, 1869, L.R. 4 C.P. 616). Contracts of companies registered under the Companies Acts are regulated by Companies Act 1867 (30 & 31 Vict. c. 131), sec. 37. For contracts by Urban Sanitary Authorities, see Public Health Act 1875, 38 & 39 Vict. c. 55, s. 174 (1), and Young v. Mayor of Leamington, 1883, 8 App. Cas. 517. As to special forms of agreements between the master of a ship and the crew, see the Merchant Shipping Act 1894 (57 & 58 Vict. c. 60), ss. 113 et seq.

STAMPS. By the Stamp Act 1891 (54 & 55 Vict. c. 39), schedule 1, an agreement or memorandum for the hire of any labourer, artificer, manufacturer, or menial servant, and an agreement or memorandum made between the master and mariners of any ship or vessel for wages on any voyage conditions from port to port in the United Kingdom, are exempt from stamp duty. A fireman and stoker on board a steamship has been held to be a labourer or artificer (Wilson v. Zulueta, 1849, 19 L.J.Q.B. 49). A bailiff engaged at 15s. a week for about six months, and after that period at a salary of £25 a year with a third share in the profits, has been held to be a labourer (R. v. Wortley, 1887, 21 L.J.M.C. 44). For further definitions of an artificer see Highmore's Stamp Laws, 2nd ed. pp. 85, 86. For the definition of a menial see cases ante.

An agreement with a clerk must be stamped (Dakin v. Watson, 1841, 2 Cr. and Dix. 224), and also with a person who contracts to do work on a large scale and employs labourers under him, even though he from time to time personally does some work (Sharman v. Saunders, 1853, 13 C.B. 166).

CONSIDERATION.-In common with all contracts not under seal, an agreement of hiring is void unless supported by consideration. Such consideration in the vast majority of cases takes the form of wages or salary, the amount of which is, as a rule, expressly specified in the agreement. When the agreement is silent on the subject of remuneration a presumption, which, however, can be rebutted, arises that the master has agreed to remunerate the servant, who can recover on a quantum meruit. This applies to cases where there is an agreement to pay some remuneration, the amount being left undecided (Peacock v. Peacock, 1809, 2 Camp. 45; Bryant v. Flight, 1839, 5 Mee. & W. 114. Bird v. M'Gaheg, 1849, 2 Car. & Kir. 707). In Taylor v. Brewer, 1813, 1 M. & S. 290, the plaintiff, who worked for a committee who had passed a resolution "that any work done by him should be taken into consideration and such remuneration be made as should be deemed right," failed to recover anything as it was held that the whole question whether he should have any remuneration at all rested with his employers. Cases have arisen where the amount of remuneration has been left to a third party. In such cases nothing can be recovered unless an application be made to that third party (Owen v. Bowen, 1829, 4 Car. & P. 93; London Tramways Co. v. Bailey, 1877, 3 Q.B.D., 217). A promise to pay a sum of money at a future date will support a contract of service, and may be recovered by the servant only if such payment be by way of payment for services and is not a gift or gratuity. In the same way a definite promise to leave a servant a legacy in consideration of services rendered will support an action against the master's executors. The mere expectation of a legacy

is not sufficient (Loffus v. Maw, 1862, 3 Giff. 592; Maddison v. Alderson, 1883, 8 App. Cas. 467).

The following rules which apply to all cases of contracts may be noted here. Provided there is some consideration, the Court will not interfere to fix what the amount of consideration should be and so make bargains for the parties (Bolton v. Madden, 1873, L.R. 9 Q.B. 55), unless the inadequacy of consideration "is such as shocks the conscience and amounts in itself to conclusive and decisive evidence of fraud" (Coles v. Trecothick, 1804, 9 Ves. 234, at p. 246). A contract made for immoral or illegal consideration is void, as also are contracts made in general, though not partial, restraint of trade (see Maxim-Nordenfeldt, etc., Co. v. Maxim [1894], App. Cas. 535; Dubowski v. Goldstein [1896], 1 Q.B. 478).

PERFORMANCE OF THE CONTRACT BY THE PARTIES AND THEIR RIGHTS AND DUTIES INTER SE.-Both parties are bound to perform the contract of service and both are liable to an action for damages for any breach thereof. An action will lie against a servant who does not enter into the service of his master with whom he has contracted at the time specified, or who leaves his master's service before the expiration of the time for which he has agreed to serve (Bird v. Randall, 1762, 3 Burr. 1345). Illness, whether permanent or temporary, or any other act of God, is, however, an answer to an action by the master (Boast v. Firth, 1868, L.R. 4 C.P. 1; Robinson v. Davison, 1871, L.R. 6 Ex. 269). The servant must obey all legitimate orders and be honest and diligent in the exercise of his master's work, and must not use to his master's detriment, even after he has left his service, information received while in the service (Robb v. Green [1895], 2 Q.B. 1, 315). Any bribe taken or secret profit made by a servant while doing his master's work belongs to the master and may be recovered by him from the servant (Boston Deep Sea Fishing and Ice Co. v. Ansell, 1888, 39 Ch.D. 339); and an agreement by a third party to pay a servant any such bribe or profit is void and cannot be sued on by the servant (Harrington v. Victoria Graving Dock Co., 1878, 3 Q.B.D. 549). A servant is liable to an action by his master for gross negligence in the care of property entrusted to him by his master, but is not liable for loss due to accident or force majeur (Savage v. Walthew, 1707, 11 Mod. 135; Walker v. British Guarantee Association, 1852, 18 Q.B. Rep. 277). A servant is also liable for fraud or misfeasance in the exercise of his duty to his master (Hussy v. Pacy, 1666, 1 Lev. 188; Lewson v. Kirk, 1610, Cro. Jac. 265). A servant must always account to his master for money received on his master's account, and must hand over any balance found due to the master. Except where the master's title has accrued tortiously or fraudulently, the servant is estopped from setting up a jus tertii or title of a third party as a defence to an action by the master for money due. As a general rule he is liable to account only to his master.

A master who has agreed to take a servant into his employ and does not do so is liable to an action for breach of the contract (Clark v. Allatt, 1847, 4 C.B. 335; Bracegirdle v. Heald, 1818, 1 B. & Ald. 722; Blogg v. Kent, 1830, 6 Bing. 614), and the servant may bring his action as soon as the master's conduct or statements entitle the servant to conclude that he does not intend to fulfil the contract, without waiting for the date on which the service was to commence to arrive (Hochster v. De la Tour, 1853, 2 E. & B. 678; Rhymney Ry. Co. v. Brecon and Merthyr Tydvil Ry. Co., 1900, 83 L.T. 111). The master must not discharge the servant during the time for which he has contracted to employ him except for good cause. A servant who has been wrongfully dismissed has a right of action against his master.

In the absence of any agreement to the contrary a master is bound to supply his domestic servants with food and lodging. A master's liability, to feed his servants, other than domestics, arises from the contract between the parties. Neglect to perform this duty, where it exists, is a misdemeanour (24 & 25 Vict. c. 100, s. 26; 38 & 39 Vict. c. 86, s. 6). An apprentice can moreover claim medical attendance, but a servant can not (R. v. Smith, 1837, 8 C. & P. 153; Wennall v. Adney, 1802, 3 B. & P. 247). Whether or not a master who has agreed to supply his servants with food is bound to supply physic has not been decided.

The servant has a right of indemnity against his master for the consequences of lawful acts done in his master's service, and also for unlawful acts, which are mala prohibita and not mala in se, which he performs, not knowing that he is doing wrong. For mala in se he has no indemnity. Nor is a master liable for the consequences of acts done by his servant in breach of his orders (Southern v. How, 1618, Cro. Jac. 471; Bunker v. M. Ry. Co., 1883, 47 L.T. 476; Vickery v. G. E. R., 1898, 79 L.T. 121). In some cases, however, the master is liable to pay compensation under the Workmen's Compensation Act, sec. 1, to his servants for injuries arising from acts done in contravention of his orders (infra, p. 32).

LIABILITY TO THIRD PERSONS FOR ACTS OF SERVANTS.-Contract.-A master can only be made liable to third persons for contracts which the servant has entered into while acting within the general scope of his authority, this being part of the ordinary law of agency. A master becomes liable for contracts entered into by his servant (1) when he has expressly authorised the servant to enter into the contract; (2) where the work to be done by the servant is such that a power to enter into contracts on behalf of his master is necessary to the proper fulfilment of his duties; (3) where by his conduct the master has led others to believe that the servant had authority; (4) where he ratifies contracts entered into by the servant. (See further, article "PRINCIPAL AND AGENT.")

Liability of Master for Criminal Acts of Servant. The general rule of law is that a principal is not criminally liable for the acts of his agent (R. v. Stephens, 1866, L.Q. 1 Q.B. 710). Where, however, a master gives express or implied authority to his servant to commit an unlawful act, or orders him to do such an act, both are liable (R. v. Parr, 1841, 2 Moo. & R. 346). Again, a master is liable to be indicted for a nuisance caused by his servants. Some statutes impose on the master a liability for the acts of his servants, e.g. the Bread Act 1836, the Pharmacy Act 1867, the Pawnbrokers Act 1872, and the Licensing Acts 1872-1902.

Liability of Master to Third Persons for Torts of Servants.-A master is liable to third persons for the acts of his servant so long as the servant is acting within the scope of his master's authority (Barwick v. English Joint Stock Bank, 1867, L.R. 2 Ex. 259; Houldsworth v. City of Glasgow Bank, 1880, 5 App. Cas. 317). This liability includes all wrongful acts and negligence, misfeasances, non-feasances, and malfeasances. The master's knowledge, order, or authority are immaterial, and he is liable even if he has expressly ordered the servant not to do the act (Limpus v. L. G. O. Co., 1862, 1 H. & C. 526; Ward v. L. G. O. Co., 1873, 42 L.J.C. P. 265; Black v. Christchurch Finance Co. [1894], App. Cas. 48). On the same principle a railway company is liable for passengers' luggage lost by their porters (Richards v. L. B. & S. C. Ry., 1847, 7 C.B. 839; Bergheim v. S.-E. Ry. Co., 1878, 3 C.P.D. 221; Bunch v. G. W. Ry. Co., 1888, 13 App. Cas. 31; Patscheider v. G. W. Ry., 1878, 3 Ex.D. 153), provided the luggage is entrusted to them as servants of the company and in the performance of their ordinary duties,