arise as to who is a servant within the meaning of the many Acts in which the word occurs. Yet the Legislature has rarely attempted to define it. The above definition is not offered as perfect. The term is, in fact, used loosely and in different senses. No definition which would include all its significations in statutes, in settlement cases, in actions for seduction or for enticing away, and in wills, is possible. The word has not been employed in the same sense at different periods of history. It has been extended to relations to which it was not once applicable. Originally the term indicated a sort of status. A servant was generally a member of his master's household. He was in a sense under his master's potestas. He is mentioned in the same context as the wife or son or daughter of the house. The relation is often described as one of allegiance (c). The statute of treason, 25 Edward III. s. 5, which enumerates various forms of treason, and which adds "there is another manner of treason (petit treason), that is to say, when a servant slayeth his master, or a wife her husband, or when a man, secular or religious, slayeth his prelate, to whom he oweth faith and obedience," presupposed that master and servant stood to each other in a degree of intimacy which is not now implied. Even at the same date the use of the term has varied according to the subject matter. In actions for seduction, a person who does any trifling act of service is regarded as a servant (d). Mere casual temporary employment for a particular purpose will not suffice to make a person a servant within the meaning of some statutes (e). In the case of others this is enough (f). Servant is used, for example, in one sense in the Carriers Act (11 Geo. I. and 4 Will. IV. c. 68, s. 8) (g), and in another in the Larceny Act (24 & 25 See as to the difficulties which arose as to what servants could be punished for petty treason, 1 Hale P. of C., 380. (c) Bacon's Abridg. V. 333. (d) See Chapter XXIII. (e) Roscoe, Criminal Evidence, 9th ed., 453; see, however, R. v. Hughes (1832), 1 Mood. C. C., 370. (f) It is often used as a synonym for domestic servant, Yewens v. Noakes (1880), L. R., 6 Q. B., 538. (g) See p. 49. Vict. c. 96, s. 68) (h). The above definition is offered only as explanatory of a usual acceptation. No word in legal literature is more common or more ambiguous than "servant.” (h) The following are some of the chief decisions under the statutes with respect to "servant" and "clerk." SERVANT Rex v. Squire (1818), R. & R. 349, (overseers of a township employed prisoner as their accountant and treasurer; received and paid all money receivable or payable on their account; servant or clerk within 39 Geo. III. c. 85). Rex v. Hughes (1832), 1 M. C. C., 370, (prisoner employed as driver to drive a cow and calf and to bring back the price. He was employed to receive in one instance only; within 7 & 8 Geo. IV. c. 29, s. 47). Reg. v. Tongue (1860), 30 L. J., M. C. 49, (prisoner secretary to a money club; his duty to summon meetings and to make out the promissory notes on demand and to countersign all cheques upon the treasurer; he received a salary). Reg. v. Macdonald (1861), 31 L. J., M. C., 67, 5 L. T., N. S., 330, (prisoner a cashier and collector of a firm; he received in lieu of increase of salary percentage of profits; no control over business). Reg. v. Proud (1861), 31 L. J., M. C. N. S. 71, (paid secretary of a friendly society, whose duties were to attend meetings of lodge, write minutes of proceedings, keep correct accounts of receipts and expenditures, &c. He was a member of the society). Reg. v. Tite (1861), L. & C. 29, 30 L. J., M. C. 142, 14 L. T., N. S., 259 (prisoner a commercial traveller employed by prosecutors; paid by commission; at liberty to receive orders from others). Reg. v. Hastie (1863), 32 L. J., M. C. 63 (secretary of a benefit society, who had according to the rules, nothing to do with the receipt of money paid off by trustees, but who was in the habit of receiving such money; held that he might be convicted of embezzlement under 7 & 8 Geo. IV. c. 29, s. 47). Reg. v. Dixon (1868), 11 Cox, C. C. NOT SERVANT Rex v. Burton (1829), 1 M. C. C. 237, (prisoner a clerk of chaplain who collected the sacrament money from the communicants, is not the servant of the incumbent, churchwardens, or poor of township within 7 & 8 Geo. IV., c. 29, s. 47). Reg. v. Walker (1858), 27 L. J., M. C. 207; 1 Dears. & Bell, C. C. 600, (prisoner kept a refreshment room; employed by prosecutors to get orders for manure; paid by commission; no definite time to be spent in collecting orders; with a view to obtain the security of guarantee society, prosecutors paid a salary of £1 a year). Reg. v. May (1861), 30 L. J., M. C. 81; 3 L. T., N. S. 680, (defendant employed to obtain orders for iron at a certain commission. It was his duty to account immediately to the prosecutors for any money he received). Reg. v. Bren (1863), 33 L. J., M. C. 59; 9 L. T., N. S. 452, (prisoner a member of a committee formed of members of two friendly societies for the purpose of conducting a railway excursion; defendant and others nominated to sell tickets; received no remuneration; he did not pay over proceeds of tickets to person appointed to receive the money). Reg. v. Glover (1864), L. & C. 466; 33 L. J., M. C. 169; 10 L. T., N. S. 582 (under-bailiff of County Court, not servant of high bailiff, though appointed by him; servant of the Court). Reg. v. Bowers (1866), L. R., 1 C. C. 41; 35 L. J., M. C. 206; 14 L. T., N. S. 671, (prisoner first employed as agent or traveller for the sale of coals at a salary of one guinea a week and 1s. a ton commission to collect debts. Subsequently on his going into the retail trade salary stopped, and only paid by commission). Many contracts relating to work, labour, and services do not establish the relation of master and servant. Bail 178, (prisoner engaged by U. at weekly wages to manage a shop. U. having assigned all his estate and effects to R., a notice was served on prisoner to act as agent of R. in the management of the shop. For fourteen days R. received the money from U., who continued to pay prisoner his wages during the whole period. Subsequently R. reconveyed the estate and effects to U. But the deed was not registered until after the embezzlement charged against the prisoner. Prisoner servant of U.). Reg. v. Carpenter (1869), L. R. 1 C. C. 29; 35 L. J., M. C. 169; 14 L. T. N. S. 572; 14 W. R. 773 (prisoner, who was elected assistant overseer by the inhabitants in vestry, and subsequently appointed to that office by warrant of two justices, and who performed the duties of overseer, well described in an indictment for embezzlement as the servant of the vestry, on the authority of Reg. v. Watts, 7 A. & E. 461). Reg. v. Redford (1869), 11 Cox, C. C. 367; 21 L. T., N. S. 509 (secretary of building society who was also one of the trustees, servant of the trustees). Reg. v. Turner (1870), 11 Cox, C. C. 551; 22 L. T., N. S. 278, (prisoner employed to act as the traveller of R. E., and " diligently employ himself in going from town to town.. and soliciting orders;" R. E. had full control over his time and services. Prisoner agreed to act as traveller; at liberty to take orders for others, but not without prosecutor's written permission; to be paid by commission). Reg. v. Bailey (1871), 24 L. T., N. S. 477: 12 Cox, C. C. 56, (A. employed as traveller to collect money due on execution of orders, and to pay over the money every evening of the day or on the following day; he might get orders when and where he pleased, but to be exclusively in the employment of prosecutors, and to give his whole time), C. C. R. Reg. v. Mayle (1868), 11 Cox, C. C. 150, (M. employed as "London agent;" no salary; perfectly optional whether he obtained orders or not; not bound to collect on any particular day). Reg. v. Marshall (1870), 21 L. T. 796; 11 Cox, C. C. 490 (prisoner employed by coal merchant; to receive 1s. 4d. per ton as procuration fee, and 4 per cent. for collecting, &c.; no salary; at liberty to go where he pleased for orders). Reg. v. Negus (1873), L. R. 2 C. C. 34; 42 L. J., M. C. 62; 28 L. T. 646; 21 W. R. 687 (prisoner employed to solicit orders where he pleased; and to be paid by commission; received no salary; not to hire himself to others than prosecutor), C. C. R. Reg. v. James Hall (1875), 31 L. T. 883; 13 Cox, 49, (an accountant and debt collector employed by prosecutors to collect certain specified debts according to his discretion; to be paid by percentage; jury found he was employed as a clerk; Court for Crown Cases Reserved, held finding was wrong). ment, contracts of affreightments, contracts between principals and brokers or factors, clients and solicitors, differ in important respects from a contract of hiring and service. A. contracts with B. to build a wall of a specified length and height for a certain sum; A. is to be free to provide the necessary labour and materials in any manner he chooses; B. bargains for the result of A.'s labour and skill. Though a contract for work and services, this is different from an agreement by A. to build a wall for B., subject to his directions, and to labour exclusively for him during certain hours. In English law the former is a contract of work and labour, the latter, one of hiring and service. An artist receives a commission to paint a portrait; a journeyman painter is employed to paint coaches under the supervision of a foreman; a commissionaire is employed to go on a special errand; a lad is hired to carry the messages of an establishment; a carrier agrees to take a parcel from one place to another; it is a man's duty to carry the goods of a certain firm and subject to their directions these are so many instances of contracts of work and service, and contracts of master and servant. A railway company entered into a contract for the building of cars Reg. v. Foulkes (1875), 2 L. R., C. C. 150; 44 L. J., M. C. 65; 32 L. T. 407; 23 W. R. 699 (prisoner assisted his father as clerk to a local board, and in his father's absence acted for him as clerk to the board; but received no salary and was not appointed as clerk by the board. The prisoner managed for his father the raising of a loan for the board; evidence that prisoner was a clerk or servant), C. C. R. "It is a question for a jury, whether a person accused of embezzlement is a clerk or servant or not," says Mr. Justice Stephen with reference to 24 & 25 Vict. c. 96, s. 68, and citing R. v. Negus, L. R. 2 C. C. 34; R. v. Tite, L. & C. 33; R. v. May, L. & C. 13, Digest 220. The question who is a servant, is not in regard to civil liability entirely one for the jury; and in some of the above cases convictions were quashed when persons not legally servants were found to be such by juries, e.g., R. v. Hall, 13 Cox, C. C. 49. In some instances the question is one entirely for the judge, R. v. Bowers, L. R. 1 C. C. 41. See 31 & 32 Vict. c. 116, as to larceny by joint owners. with a certain patent improvement. The contractor had no licence to use the patent which had to be employed if the improvement were made. No action, it was held, lay against the railway company for infringing the patent, because the contractor carried on an independent business, had workshops of his own, and made the cars as he saw fit (i). Had he been subject to the directions of the company, they would have been liable for the violation of the patent, because the relation of master and servant would have then existed. Some common tests of the existence of this relationship are not perfect. Two persons are not always respectively master and servant, because the one can discharge the other (k). The hand which pays wages is not necessarily the master's (). A person may be entitled to exercise control over others who work, and yet they may be not his servants, but the servants of a contractor (m). A. may be bound to give service exclusively to B., and yet he may not be for all purposes B.'s servant (n). The person who appoints or engages a servant is not necessarily the master. Though the crew of a ship are generally engaged by the captain, not the owner, they are the servants of the latter. The relation may exist between two persons, both of whom perform manual work (0); and a man may be the servant of another, (i) See Fenton v. City of London Steam Packet Co. (1838), 8 A. & E. $35; Recdie V. London & North Western R. Co. (1849), 4 Ex. 244. (k) Reedie v. London & North Western R. Co. (1) Willett v. Boole (1860), 6 H. & N. 26. The person who appoints is not necessarily master; R. v. Callahan, 8 C. & P. (1837) 154 (Callahan appointed by vestrymen of the parish; rightly described as servant of committee of management); R. V. Jenson (1835), 1 Mood. 434 (clerk elected by managers of savings' bank; rightly described as clerk to the |