Master and Servant Act, 1867, for its fulfilment by C, although the service under it had not been actually commenced.

Quære-whether the effect of the Master and Servant Act, 1867, is that, to be within such jurisdiction, the contract must be in writing, as required by 4 Geo. 4. c. 34. s. 3, when the service has not been commenced.

It is no objection to an information and complaint laid under the Master and Servant Act, 1867, that the complainant claimed therein the fulfilment of the contract of service instead of claiming only compensation for its breach, or claiming in the alternative such compensation or fulfilment.

CASE stated by Justices, pursuant to 20 & 21 Vict. c. 43, from which it appeared that the appellant, who is a journeyman stonemason, was summoned before the Justices for the borough of Sheffield, under the Master and Servant Act, 1867, on the information and complaint of the respondent, a master builder. The offence charged was, "that he, Owen Crane (hereinafter called the said employed), being the servant of James Powell, of Brook Hill, in the said borough, builder (hereinafter called the said. employer), in his trade or business of a stonemason, under a certain contract of service for a period now unexpired, did unlawfully neglect and refuse to enter into and commence his said service according to the said contract. And the said employer declared, by his said information and complaint, that he claimed that the said contract should be fulfilled by the said employed."

On the hearing, before the Justices, the respondent proved that in the month of April last he was the contractor for building a house at Endcliffe, in Sheffield, and that in the early part of that month there was a strike amongst the masons in his employ on such building, and he put himself in communication with Colonel Maude, the Secretary of the Free Labour Registration Society in London, to obtain more men. The following letters and application passed between the respondent and Colonel Maude :

"Brook Hill, Sheffield, April 16, 1868. "Colonel Maude,

"Dear Sir,-Have you any masons that you could recommend to me that are in want of employment? I could find work

for ten or twelve good masons that can work Yorkshire stone, for twelve months. If you can I shall take it as a great favour, if they are good steady men. The men I had struck this morning because I let some wall stones to be worked by the piece. This I cannot submit to, as I should for* every man to be at liberty to work as he think fit to agree to with his employer. The wages that I should pay to good men would be 7d. per hour. If you have any men, or know of any, I shall be glad to hear from you as early as possible. Waiting your reply. (Signed) "James Powell, Builder." "The Free Labour Registration Society, Head Office, 9, Victoria Chambers, Westminster.

"Dear Sir,-In reply to your note, I beg to state that we can supply you with plenty of non-union masons, good steady men, at a few hours' notice. I enclose you a form of application, which please fill in with the requisite particulars, and send to us by return of post.

(Signed) "J. C. Maude, Colonel,
"Hon. Sec., &c.

"Mr. James Powell."

"Brook Hill, Sheffield, April 18, 1868. "Dear Sir, I am in receipt of your note of yesterday. I return you one of the forms filled up and signed. The work I want the men to do is cleansed moulded work. I hope that the men you send will be good, steady men, as I do not like any drunkards. Will you please to write and say by what train they will come by, and the date, and I will meet them, so that they will not be lost or make any mistake.

(Signed) "James Powell." The following is the form referred to in the last letter:

"To be filled up by employers requiring hands from the Free Labour Registration Society.

"Dated the 18th day of April, 1868. Number of hands re- ... Twelve masons. quired. Nature of employment. 7d. per hour. Piece-work or otherwise; 328. 4d. per week.

...

...

Wages. Probable duration of... Until Christmas, employment. longer. Price of lodgings in... About 38. per week. neighbourhood. Whether in consequence of a strike or not.

or

Strike on account of letting to men some work by the piece.

Sic in the original.

"I hereby agree to conform to the rules of the Free Labour Registration Society. "Signature of the employer,

"James Powell. "Address of employer, Brookhill, Sheffield." It was also proved before the Magistrates that, on the 22nd of April, 1868, the appellants went to Colonel Maude's office, and the two letters from respondent and the above form were then read to him and other men. The appellant then stated he was not a member of any trades union, and he signed an agreement of which the following is a copy:

"Free Labour Society.

"We, the undersigned members of the above society, having accepted employment in Sheffield, do agree that one half-day's wages (and 9d. for a card of membership), being the fee to the said society for obtaining us the employment, shall be deducted by instalments from our wages during the ensuing four weeks; and we do also agree that we will not quit the service of our employer without just or reasonable cause, or unless by mutual agreement, before the expiration of the current year. London 22nd April, 1868."

Then followed the names and signatures of a number of men, including those of the appellant.

It appeared also from the case that this agreement was sealed with Colonel Maude's seal for the purpose of identification, and that, on the 22nd of April, 1868, the railway fares of the appellant and seven other men from London to Sheffield, 13s. 6d. each, were paid by Colonel Maude's clerk, as agent to the respondent, who met the train at Sheffield, and went with the appellant and the other men to the place of work at Endcliffe, where each man left his tools in the tool-house there, and promised to commence work next morning, and the respondent having been asked by the appellant for some money on account, gave the appellant 16s. for himself and the seven other men. On the following morning the appellant and the other men went to

Endcliffe and took away their tools from the tool-house, and when asked by the respondent why they were doing so, they said that they had been at the club-house the night before, and were told that the respondent was getting the stonework done contrary to the rules. The appellant and the seven others then finally left Endcliffe without having commenced their work, and without repaying the respondent either the railway fare or the money he had advanced. No evidence was offered by the appellant's attorney, but he contended, inter alia, that the respondent ought, under the provisions of the Master and Servant Act, 1867, by and in the information and complaint laid by him under section 4, to have set forth the amount of compensation claimed for breach of contract, and not claimed the fulfilment of the contract; and further, that, under the 3rd section of that act, the respondent was bound to prove a contract of service within the meaning of some enactment described in the first schedule to that act, which it was submitted he had not done.

The Justices overruled all the objections, and were of opinion that, by section 4, the complainant was not bound to claim any amount of compensation for breach of the contract, but was at liberty to seek the alternative remedy provided by section 9. of having the contract fulfilled. They were also of opinion that, by the oral and documentary evidence above set forth, the respondent had proved a contract of service between the appellant and himself for the period between the 23rd of April last and the expiration of the then current year; that such contract was in writing and signed by the contracting parties; and that the appellant had not entered or commenced his service according to his contract; that such contract was within the meaning of 20 Geo. 2, described in the Schedule to the Master and Servant Act, 1867, and that, therefore, as to the contract in this case, the latter applied as provided by the 3rd section. The Justices therefore made the following order: "That the said employed shall fulfil the contract forth with, and that the said employed shall forthwith find good and sufficient security by recognizance himself in the sum of 20%. and two sureties in the sum of 107. for the due fulfilment of the said contract; and if upon a copy of a minute of this order being served

upon the said employed he shall neglect or refuse to comply with the same, in that case we adjudge the said employed for such his disobedience to be imprisoned in the house of correction at Wakefield, in the West Riding of Yorkshire, for the space of one month, unless he shall sooner find such security as aforesaid."

The question for the Court was whether, regard being had to the evidence as presented to the Justices, and to the said objections taken by the appellants' attorney, and the said views and opinions of the Justices thereon as above stated, the order was or not a valid and effectual order within the provisions of the Master and Servant Act, 1867.

Crompton, for the appellant.-The first point is, that the information was bad, as the employer should, under section 4. of 30 & 31 Vict. c. 141. (the Master and Servant Act, 1867), have claimed compensation for the non-performance of the contract, and not have insisted on the fulfilment of the contract. The 4th section states that the party aggrieved is to "lay an information or complaint in writing before a Justice," &c., "setting forth the grounds of complaint, and the amount of compensation, damage or other remedy claimed for the breach or non-performance of such contract;" and upon such information the Justice is to issue a summons "setting out the grounds of complaint and the amount claimed for compensation," &c., as set forth in the information. The 9th section empowers the Justices on the hearing of the complaint, amongst other things, to direct the fulfilment of the contract, but that is a matter entirely in the discretion of the Justices and for their determination, and not one which the employer can insist on. He ought only to have asked in the alternative either for its fulfilment or for compensation for its breach.

[BRETT, J.-Still it was in the discretion of the Justices to have granted, or not, what was asked for. WILLES, J.-It is clearly no good objection at any stage.]

Then, it is submitted, that the order is bad, as the Justices had no power under section 9. to adjudge imprisonment until there hud been a disobedience of their order.

[WILLES, J.-We have no power to quash this order. All that we have to do is to see whether the Justices were wrong in point of law in their decision on the

points which were taken before them. The respondent will have to consider whether he can act on this order, but we ought not to pronounce any opinion upon it.]

Then the only other point, and which, indeed, is the important one, is, whether the contract of service in this case is within the act at all. The 20 Geo. 2. c. 19, within the meaning of which the Justices said the contract was, does not apply to a case where the service has not commenced; and the 4 Geo. 4. c. 34. s. 3, which relates to the case of a person not entering into his service, only applies to contracts which are in writing and signed; and in the present case there was no contract in writing. All the terms of the contract are contained in the correspondence between the respondent and Col. Maude, and are not in the document which was signed by the appellant, nor is there in such document any such reference to those letters as would be necessary to make it a good contract within the meaning of the Statute of Frauds-Boydell v. Drummond (1). There the proposals for printing an edition of Shakspeare were contained in a prospectus, and the defendant signed a book entitled "Shakspeare Subscribers their Signatures," and the Court held that, as the prospectus contained no reference to the book which the defendant had signed, nor the book in the prospectus, the two could not be coupled together; and the Court also held that such connexion could not be introduced by parol evidence, but must, in order to satisfy the statute, appear upon the face of the documents themselves.

[WILLES, J.-The document signed by the appellant speaks of "our employer." You may prove by parol who was the employer there referred to, and that earmarks the contract.]

It is submitted that that would be carrying the principle of connecting documents so as to satisfy the Statute of Frauds further than has been hitherto done. Besides, this statute of 4 Geo. 4. c. 34. is a penal statute, and the protection afforded by section 3, that such contract should be in writing, would be lost if what took place in the present case should be held to be a contract sufficient to satisfy that statute. That 3rd section says 'signed," and that it is submitted must mean signed by both (1) 11 East, 142.

contracting parties. Therefore, unless what was signed by the appellant can be joined. with what was signed by the respondent, so as to form together a contract signed by both, the act has not been complied with.

[BRETT, J.-Does the Master and Servant Act, 1867, mean anything more than that, to come within that act, there must be a contract between persons such as those who are described in the various statutes mentioned in the first schedule?]

It is submitted that it does not apply to any parol contract where the service has not been entered into. It is true that by the definition clause (section 1.) the words "contract of service" are "to include any contract, whether in writing or by parol," but that, as appears by the 3rd section, is not to alter the necessity for the contract being in writing when it is required to be so by 4 Geo. 4. c. 34. s. 3, and the terms of the definition clause as to contract by parol are satisfied by the case in which the 20 Geo. 2. c. 19, applies.

Hannay, for the respondent.-No doubt there is some inconsistency between the definition clause and the 3rd section of 30 & 31 Vict. c. 141, but it is submitted that it is not necessary that the contract should be in writing to satisfy that statute, and that this is manifest from the 4th section, which must include a contract by parol as well as in writing. The true meaning of the 3rd section is, only to confine the operation of the act to the same class of cases as would have come within the statutes mentioned in the first schedule, and therefore to exclude the case of domestic servants. However, it is submitted that the contract here was in writing. There must be parol evidence to identify parties. So here, parol evidence is admissible t identify the "employment" and the "employer" referred to in the document signed by the appellant, and that necessarily connects it with the one signed by the respondent. In Macdonald v. Longbottom (2) parol evidence was allowed to shew what the parties meant by the term "your wool" in a written contract. It is submitted that what the appellant signed, taken with the letters and form sent by the respondent, and which were read to the appellant, formed a good contract in writing.

(2) 1 El. & El. 978; s. c. 28 Law J. Rep. (N.s.) Q.B. 293.

Crompton replied.

WILLES, J.-In this case it is unnecessary to give any opinion on the objection that has been taken to that part of the order which adjudges that if the appellant neglects or refuses to return to his work he shall be imprisoned for a month. The Justices can of course only adjudge the appellant to be imprisoned under the authority of an act of parliament, whose provisions they must follow; and it will be for the respondent to consider whether he can enforce that part of the order without bringing the appellant before the Justices again on a fresh summons after he has failed to return to his work. The only question before us, however, is, whether or not the order made by the Justices in this case is or is not a valid and effectual order within the provisions of the Master and Servant Act, 1867; that refers to the decretal part, if one may so call it, of the order, viz., that the appellant should fulfil his contract, and the remainder may be considered as surplusage for this purpose. All the objections raised by the appellant have been sufficiently disposed of in the course of the argument except one, viz., that the contract was not such as to be within the jurisdiction of the Magistrates, because the late act only applies to parol contracts when the service has been actually commenced, in other words, that section 3. of the act of 1867 ought to be so read that the law introduced by 20 Geo. 2. c. 19, and 4 Geo. 4. c. 34, should be considered to be still existing for the purpose of defining what cases are within the act. Whether the effect of the late statute is, that all contracts of such a character that they would fall within any of the former acts, whether by parol or not, and whether the service has been commenced or not, are within the jurisdiction of the Magistrates, or whether 4 Geo. 4. c. 34. is still to be looked at, and the contract must necessarily be in writing when the service has not been commenced, it is unnecessary to pronounce an opinion, because I think that in this case there was a contract in writing which would have given jurisdiction to the Magistrates under the act of 4 Geo. 4. c. 34. In so deciding, I do not intend to throw any doubt upon the cases which shew that where it is necessary to connect the document which has been

signed with that containing the terms of the contract, the reference of one to the other must appear on the face of the document signed. It was so decided in Boydell v. Drummond (3), which has ever since been acted on by the profession; but I think that in this case there is upon the face of the agreement signed by the appellant, a reference to the document signed by the master, of abundant distinctness to enable me to say that that, and no other, is the document referred to in it.

In Boydell v. Drummond (1), the plaintiff being about to publish an edition of Shakspeare, prepared a prospectus containing the terms of subscription, which lay on his counter, and a book headed their Signa"Shakspeare Subscribers, their Signatures," which was signed by the defendant. It was held that, as the book did not refer to the prospectus, the two could not be connected so as to constitute a written agreement signed by the defendant. The distinction between that case and the present will be quite clear when the documents are compared, and the more as the history of the documents must, of course, be taken into account. From the first letter in this case it appears that the respondent applied to a society called the "Free Labour Registration Society" to procure him some workmen ; the secretary to the society wrote in answer, inclosing a blank form, which shewed under various heads the details of the employment; that was filled up and signed by the respondent; the form was headed "To be filled up by employers requiring hands from the Free Labour Registration Society," and it was signed, "Signature of employer, J. Powell," "Address of employer, Brook Hill, Sheffield." That being so, the document was brought to the knowledge of the appellant; and the question is, whether it was assented to by a writing referring to it and signed by the appellant. Now the document signed by the appellant states that he had accepted employment at Sheffield, the place where, as appears by the other document, the respondent lives, and it contains the expression "being the fee to the said society for obtaining us the said employment," and "we do also agree that we will not quit the service of our employer," referring especially to some employment found for the appellant (3) 11 East, 142.

by the society. Upon inquiring what was the employment procured for the appellant by the society, which we are thus led to do by the document itself, it appears to have been in writing and contained in the form filled up and signed by the respondent; a complete contract in writing, signed by the two parties, is therefore obtained. Acting, then, upon the plain intention of the statute, and seeing it has been substantially, and I think literally complied with, though that is of less importance, we must affirm so much of the order as we are at present concerned with, and, as the objection is not one going to the merits, with costs.

KEATING, J. Concurred.

BRETT, J.-The only objection on which it remains for us to give judgment is, whether the contract was within the late statute (30 & 31 Vict. c. 141). It is said that the contract would not have been within 4 Geo. 4. c. 34, or any of the other acts mentioned in the first schedule to the new statute, because it was not in writing and the service had not been commenced. That raises two questions-first, whether there was a contract in writing; secondly, whether, if not, it was necessary that there should be such to bring the case within the late statute. Now, I must say that I have very considerable doubts whether in order to bring the case within the statute the contract need be such as would have given jurisdiction to the Magistrates under 4 Geo. 4. c. 34, or one of the other statutes mentioned in the schedule above referred to; but it is unnecessary, and therefore unsafe, to decide that point, because I agree that this contract was in writing. To make it so the documents, no doubt, must refer to one another; but there is a reference in the document of the 22nd of April to employment obtained for the appellant by the Free Labour Registration Society, and as soon as evidence is given to shew what that employment was, it appears at once that it was contained in a written document signed by the other party. I think, therefore, the two documents may be taken together and form a written contract signed by both parties.

Appeal dismissed with costs.

Attorneys-Purkis & Perry, agents for J. W. H. Sugg, Sheffield, for appellant; W. Pitman, agent for Chambers & Son, Sheffield, for respondent.