John Macdonell.

The law of master and servant. Part I.--Common law. Part II.-- Statute law online

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28 L. J. C. V. 85. (A seeiie-jiainter nelins (1858), 28 L. J. Q. B. 85 ;

disiiii.ssed for ineonnieteiico.) Slater Shirlls v. Jilackbumc (1789), 1 H.

V. Laker (1767), 2 Wils. 359 ; Scare ]^. 158.



DUTIES OF SERVANTS. iil 5

better what was undertaken is no proof that tliere was a
Avant of care or skill warranting dismissal, or an action for
negligence, or a deduction in remuneration (v). The degree
of diligence required will vary according to the delicacy and
importance of the occupation (s).

A servant may be dismissed if from sickness or
other cause he becomes for a considerable time or
permanently unable to perform his duties. But if the
servant be not dismissed, sickness will be no defence
to an action for wages.

This principle, which is only a particular application of
the former principle, was affirmed in Cucksun v. Stones (t).
The plaintiff had agreed to serve the defendant as a brewer
for ten years, at £2 lO^. a week. The plaintiff was taken
ill in Christmas of 1857, and was unable to attend to his work
until July of 1858. He then tendered his services, and was
again employed about the brewery. In an action for wages
for the thirteen weeks during which he had been absent,
it was admitted that the contract had not been rescinded.
The defendant set up the defence that the plaintiff was not
ready or willing and able to render the agreed service.
The plaintiff demurred ; and the Court gave judgment for the
defendant on the demurrer. But on a motion to set aside

(r) Tindal, C.J., iu Lanphkr v. (1876), L. R. 1 Q. B. D. 414. The

Phipos (1838), 8 C. & P. 475, 479 ; law is thus stated by Mr. Bell in his

Jlich V. Fiayont (1862), 3 F. & Principles. Sickness, or inevitable

F. 35. accident, "will excuse non-perlbrni-

(*•) Dig. 19, 2 ; 13, 5 ; Story on ance for a short time ; but if the

Bailments, s. 432 ; Pothier, Louage, inability should continue long, and a

c. II. s. 4, a. 1 ; see also Cockburn, substitute shouUl be re([uired, the

C.J., Reasons for Dissent in regard master will be discharged from his

to Alabama Award, Supplement to counter obligation to pay wages," sec.

London Gazette, 1872, 4139; Hinshaio 177, 6th ed. Sickness or incaiiacity

V. Adam (1870), 8 M. 933. to serve on the part of an apprentice,

(t) (1858) 1 E. & E. 248 ; 28 L. however, apparently, does not dis-

J. Q. B. 25. Campbell, C.J., ob- charge his master from the covenaut

serves : "He (the servant) could to provide for and maintain him ; he

not be considered incompetent by takes the apprentice for better or

illness of a temporary nature." See worse. Addison on Contracts, 696,

Blackburn, J., in Poussard v. Spiers, li. v. Hales Given (1717), 1 Str. 99.



21G THE LAW OF MASTKR AND SEKVAKT.

the verdict obtained by the plaintiff, the Court refused to
enter judgment for the defendant. " Looking to the nature
of the contract sued upon in this action," said Campbell C.J.,
we think that want of ability to serve for a week would not
of necessity be an answer to a claim for a week's wages, if in
truth the plaintiff was ready and willing to serve had he been
able to do so and was only prevented from serving during
the week by the visitation of God, the contract to serve
never having been determined." " If the plaintiff," added
Lord Campbell, " from unskilfulness, had been wholly incom-
petent to brew, or, by the visitation of God, he had become,
from paralysis or any other bodily illness, permanently incom-
petent to act in the capacity of brewer for the defendant, we
think that the defendant might have determined the con-
tract. . . . The contract being in force, we think that
here there was no suspension of the weekly payments by
reason of the plaintiff's illness and inability to work."

While permanent inability or incompetence owing to sick-
ness would, as the above case shows, warrant dismissal, it
would be a good defence in an action for non-performance of
service. This was decided in Boast v. Firth (u), which
was an action by a master for breach of an apprenticeship
deed. The defendant, the father of the apprentice, pleaded
that his son was prevented by the act of God, to wit, by
permanent illness, happening and arising after the making of
the indenture, from remaining with or serving the plaintiff.
This was considered a good plea, it being in the contem-
])lation of parties to all contracts for personal services that
the parties to them should be in a position to perform them.

The right of a servant to wages tluriug temporary sickness
is not quite clear. Some writers have drawn a distinction
between illness caused by the servant's own fault and that
for which he is not to blame (x). But the authorities, on the

(a) (1868) L. K. 4 ('. P. 1 ; Comt of Ccmmion Pleas ; 35 L. J.

TuTjlor V. Caldircll (18(J3), 3 15. k S. C. 1'. 29.'") ; 30 L. .F. C. P. 331.
826, 839; A]ijdel»j v. Mci/rrs (1866 (a) See Caiii]ili(irs edition oi'Fraser

& 1867), L. K. 1 C. P. 61.'".; L. \L on Waster ami Si ivant, \k 14U.
2 C. P. 651, reversing dccisiou of



DUTIES OF SEUVANTS. 217

whole, show that if" the contract of service remains in force
a servant, even if ill, will be entitled to his wages. In
Guckson v. Stones the Court observed : " It is allowed that
under this contract, there could be no deduction from the
weekly sum in respect of his having been disabled by illness
from working for one day of the week ; and, while the con-
tract remained in force, we see no difference between his
being so disabled for a day, or a week, or a month" (,y).



It is for the Coiu't to say whether the facts alleged
against a servant constitute a reason for dismissal ; it
is for the jury to say whether the alleged facts exist.

The practice as to this has been by no means uniform. In
some instances the question has been left mainly to the
jury. Thus in Ridgiuay v. TJte Hiingerford Market Com-
pany (z), the jury were asked to decide whether entering a
protest on the margin of a minute-book was a good ground
for dismissal. In Amor v. Fearou (a), Denman, C.J., told
the jury that if a servant claimed a right to overhaul his
master's accounts, that would justify putting an end to the
relation of master and servant. But he left it to the jury to
say whether there was a reasonable ground for dismissal. It
was objected that he ought to have decided this question
himself. But the Court decided that there was no mis-
direction. See also Head v. Dimsmore (h) ; Mercer v.

(ij) II. V. Islip {7 Geo. I.) Str. 42-2; held that absence in order to cure

Hex V. Sudhrook (1803), 1 Smith, a hurt received by a servant in Ins

55 ; Hex V. Wintcrsct (1783), Cakl. master's service, or from in.sanity,

298 ; Ex parte. Harris (1845), 1 De does not by itself determine the rela-

Gex, 165; Garry. HadsiU, 39 J. P. tion of master and servant. See also

246 ; K. V. Raschcn. (1878), 38 L. T. as to insanity being ground of dis-

38 ; 42 J. r. 38 (no answer to an charge, Jl. v. llulcvtl (1796), 6 T. K.

action for wages that jilaintitf was ill 583.

and unable to work owing to his own (~) See note (a).

misconduct) ; llohinson v. Davison (a) See note {d).

(1871), L. li. 6 Ex. 269. In Rex v. {l>) (1840), 9 C. & P. 5
Sutton (1794), 5 T. R. 657, it was



2 IS THE LAW OF MASTER AND SEKVANT.

W/iall (c) ; and Horton v. McMurtrij (d). The authorities
and tlie present practice are in favour of the statement given
above.



It is not necessary tliat a servant should be dis-
missed by his master for a valid reason ; it is sufhcient
if a valid reason in fact exists, even if the master be
not aware of it at the time of dismissal.

There has been much discussion as to the limits of this
rule, and considerable reluctance to adopt it. It Avas first
laid down in Bidgivaij v. The Hungevford Market Com-
2)any{e). It was followed in Baillie v. Kell (f). In this
case it was supported by the analogy of justifications in actions
of trespass and wrongful distress. A defendant may justify
breaking and entering plaintiff's close under any sufficient
legal process open to him at the time, and a person who is
sued for distraining wrongfully may set up in justification
any legal cause, even although in fact he distrained for
another (^). So it was said that it mattered not what ground
for dismissal the master alleged, it was enough that he had
some good ground. At all events, the servant suffered no
wrong. The rule was qualified thus in Cnssons v. Skiimer{/i),
by Baron Parke : where there has been " disobedience or
an act of misconduct by a servant, known to the master at
the time he discharges him, although he does not insist on
that as the precise ground of the discharge, he may after-
wards, by showing the fact existed, and tliat lie knew it,
justify such discharge. "

(o) Si'i- (184."^) 5 <.ii. 15.447. tlie jiistiruatioii. liut. no such liiiiitii-

((/) See especially leniailcs of tion appears in tlie judgniciits.

Pollock, C.B., at p. 265, 29 L. J. Kx. (/) (1838) 4 15iii<;. :N. (538.

265, Price V. MoHatt (1862), 11 C. 13. (;/) L'mirthcr v. j;<i)nsbottoin (1798),

508 ; East Anglian Ily. Co. v. Lytlujoi; 7 T. K. 654 ; Grcnvillc v. Colhyc of

(1851\ 2 L. M. & P. '221 I'hysicinns (12 W. III.), 12 l\o(\. 386.

(c) See above. T)ie homl note to {h) (1843)11 j\I. >'(: W. 161, 172;

the i-ei)ort of tins case limits tlie doe- Smilli v. Allni (1861'"), 3 F. k F.

trine to cases in which the master had l.'J7, the luiill^ in which scem.s

no knowled w of the facts constituting doubtful.



DUTIES OF SERVANTS. 219

Tlie introduction of this qualification was not necessary
for the decision of tlie case, and it is to be observed that the
Court quote as their authority Ridc/icay v. The HuiKjerford
Market Company, where no such hmitation is mentioned.
In Spotswooil V. Barroiv (i) the Court of Exchequer followed
Rklgivay v. TJie Hiingerford Marl-et Comjxniy. The plaintiff,
a traveller, was discharged by the defendants, his employers.
They pleaded as a defence the fact that he had refused to
obey lawful orders, and that he had misappropriated money
paid to him by their customers. The misappropriation was
proved at the trial ; and the judge left it to the jury to say
whetlier or not the defendants discharged the jolaiutiff for
that cause. This was held to be a misdirection ; the moti\'es
or intentions of the defendauts being immaterial, if their
conduct was in fact justified.

The fact of knowledge, however, may be sometimes mate-
rial. According to one case, if it be alleged in the pleadings
that the master have knowledge of certain facts, and that
they were the reasons of dismissal, it may be incumbent on
him to prove such knowledge {h). It might also be material
in regard to the question of condonation (/).



When a servant is discharged for a valid reason
before the expii-atiou of the time for which he was
engaged, he cannot recover the vahie of services which
he has rendered imder the contract.

This follows from the nature of indivisible contracts. Of
course a servant does not forfeit wages which are due but
not paid. The doctrine was above enunciated by Lord
EUenborough, who in a case at Nisi Prius in 1817 — an

(0 (1850) 5 Ex. 110 ; see Alder- (/) The rule lias not been followed

son, B., in Willets v. 6^'ccti (1850), in America. Query — would a servant

3 C. & K. 59. be able to set up, as ground of depar-

(/»■) Mrrcr V. Whall (1845), 5 ture from .service, a fact which he

Q. B. 447, 466, by Denman, C.J. did not know at the time ?



220 THK LAW OF MASTER AND SERVANT.

action by a farm servant who had Leon dismissed for dis-
obedience {ui) — said : "If the contract be for a year's service,
the year must be completed before the servant is entitled to
be paid." The rule does not seem to have been clearly
settled in 1833, as appears from the remarks of Denman,
O.J., in Turner v. Robinson (n). But it was laid down in
liiihjway V. Jliingerford Market Coitii)any{o), and Lille ij\.
Ehoin{'p)\ and, however harsh the rule may seem, it is
nndisputed. The same principle was recognised in the
Court of Admiralty with respect to forfeiture of wages by
desertion. It has, however, been modified by 17 & 18 Vict,
c. 104, s. 243 (f/).



A master is entitled to all the earnings of liis ap-
prentice. He is entitled to the earnings of his
servant acqnired Avhile he is acting as servant.

There is no doubt as to the master's right to the earnings
of his apprentice. It is affirmed in several cases, iione of
which have been overruled, that a master may sue for Avhat
his apprentice has earned, even when serving with some other
person. In Barber v. DeiLius (r), the apprentice of the widow
of a waterman was impressed, and put on board a Queen's
ship, where he earned two tickets ; they came into ihe
hands of the defendant. It was held that trover for
the tickets lay. The same principles appear to extend to

(r/i) Spain v. ArnoU, 2 Stark. 256. was held entitled to his wages uj) to

\n) (1833) 6 C. & P. 15. the time of lieiiig lett behind. See also

(o) (1835)3 A. &E. 171. Taijlorx. Laird (185(j), 1 11. & N.

(p) (1848) 11 Q. 15. 742 ; Searlc v. 2(iG ; 25 L. ,1. E.k. 329. As to eases

/i'/'//c?/0873), 28 I>. T. 411. Of course in which the contract of hiring cx-

Jtiic forfeiture will not allect wages grossly provides for forfeiture of

wiuch have already accrued due. In wages, .see Taijlor v. Carr (18(31), 30

JUMun V. Tho-mpnun (1869), L. II. 4 L. J. M. V. 201, and IFalsh v.

C. P. 330, a mate, engaged at £5 10,v. JFalleij (1874), L. 11. 9 Q. B. 367.

]ier month, under articles sanctioned (7) lilaclaehlan on Law of Merchant

by the Hoard of Trader, who was lel't Sliipliing, 3r(l ed. 240.

behind through his own fault at one (r) (US3) 6 Mod. 69; Jnon. 12

of tiic ports at which the ship sto]>ped, ^lod. 415.



DIRTIES OF SKRVANTS. 221

servants. "They apply," said Cock])iirn, C.J., in Morlson v.
Tltohi'pson (s'), "to all cases of employment as servants or
agents, the profits accpiired by the servant or agent in the
course of, or in connection Avilh, his services or agency be-
longing to the master or principal"; in other words, if
the servant receives such earnings or profits he will be treated
as the agent of his master, and an action will lie at the
instance of the latter (t). No doubt a master, as between
himself and his servant, is entitled to all which the ser-
vant earns as his servant ; but as against third persons
the master would seem to have a right to his servant's
earnings only when he acted as his master's agent. If he
hires a servant to design or invent, the inventions belonof
to the master. Such was the case in Makepeo.cc v. Jackson (u),
in which a calico printer was held entitled to a book in which
his colour-man entered the recipes of processes, although
the book contained processes invented by the latter.
Should a master discover some valuable invention, and a
workman whom he employs make a discovery subordinate
and accessory to it, "such improvements," it has been said,
"are the property of the inventor of the original improved
principle, and may be embodied in his patent ; and, if so

(*•) (1874) L. l\. 9 Q. B. 480 ; 43 turnod on ui^a.ge) ; Emlcs v. Vandeput

L. J. (,). B. 215 ; 30 L. T. 869 ; 22 (1785), (25 Geo. 3), 5 East, 39n. (but

AV. 11. 859. The judgment of the aeo Foster v. ,yfrivarf); Briqiif v. Lucas

Court is that of Cockburn, C.J. ; (1796), 2 I'eake, 12 (indi'iitup'd np-

BLickburn, J. ; and Archibahl, J. prentice who had deserted from Ids

See alao Tho)iq)Soiiv. Ilavclock {1S08), master's service cannot maintain

1 Camp. 527. action for Avages) ; Li(jfdly\. Clousfon

(t) This ease does not, howevei-, it (1808) (the master of apprentice wlio

is submitted, overrule Treswell v. has been seduced from his work

Middlrfon, Crok. ,Tac. 653 ; 2 Koll. may maintain action of indebitatus

269. (Judgment for plaintiff, inaction assiim])sit against the ])erson who

for debt against defendant who had has seduced hiin) ; Foster v. Stewart

retained his servant to make chairs (1814), 3 M. & S. 191 (plaintiff's

for five days. Judgment reversed ; apprentice deserted from plaintiff's

debt did not lie because it may be ship; went on board defendant's ship;

the master never consented to the defendant persuaded him to remain :

retainer, and the servant never in- held iilaintitf could waive tort and

tended to contract for his master.) bring action of assiimimt against

Carson v. If'attsilTM), 3 Doug. 350 defendant).

(prize-money gained by ap])rentice ((/) (1813) 4 Taunt. 770. Here,

serving on board ship-of-war does not howevei-, the action was in trover for

belong to master of apprentice. This the book.



222 THE LAW OF MASTER AND SERVANT.

embodied, the patent is not avoided by evidence that tlie
agent or servant made the suggestions of that subordinate
improvement of the primary and improved principle" (x).
But if an invention be discovered by a servant, the master,
not being the first and true inventor, cannot get a patent (y).
Accordingly Arkwright failed to obtain a ])atent for a certain
roller -when it Avas proved that he had been told of it by one
Kay, whom he had had in his service and whom he em-
ployed in making models (z).



An apprentice cannot be dismissed by his master
for misconduct unless there be a stipulation to that
effect in the indenture of apprenticeship).

Thus, in an action against a master for refusing to instruct
and maintain an apprentice, in which the former set up as a
defence disobedience of orders and other acts of misconduct,
the Court drew a distinction between the relation of master
and servant and that of master and apprentice, and held that
the latter contract could not be dissolved for acts of miscon-
duct (ct). " The master," Best, C. J., observed, " has at common
law a complete remedy, if the apprentice misconducts himself,
by an action for a breach of the covenants. The provisions
contained in the statute relative to parish apprentices show
that, at common law, the master could not determine the
contract, if the apprentice misconducted himself" (/>). So, in
Phillip'^ V. Cliff {(■), it was held to be no answer to an

(r) Erie, .1., ill .41101 v. Jiairson [a) Wiiidiuic v. /,//(?/. (IS'CS), 1 H.

(184o), 1 C. 15. 55], r.t57. r.ut tlic c^ C. 400, 47(1 ; 2 1). & K. 46.-. ; Wise

above does not seem to he a priiicijdc v. Wilsuii (1845), 1 C. & K., Deii-

oflaw p. 576, and .see Z?;o.m//( V. £/Arc man, C.J., at p. 669.

(1825), 1 C. & P. 558; Hollo v. (6) 20 (ieo. II., c. 17.

Thompson (1857), 10 D. 094. (c) (1859) 4 H. k N. 168 ; 28 L.

{y) Rrx\. Arkirriijld (1785), cited .T. E.\. 153. Sec also Addams v.

in ///// V. TAr-z/vw""! 8 Taunt. 395. Cartrr (1862), t! L. T. N. S. 130 ;

[z] Cuitis, Patent Law, 101 ; and Mcrcrr v. W/xill {IS45), 5 Q. B. 447.

.scci.'c Ruancirs Pu'rul, 2 De U. & J. In Cox v. Malhvirs (1861), 2 V. k

130 F. 397, Byles, ■!., ruled that a



DUTIES OF SERVANTS. 223

action against the master who liad turned away his appren-
tice, that he conducted himself in so dishonest a manner that
it became unsafe for the defendant to keep him in his service.
The covenants in the indenture were independent; the master
might have chastised his apprentice ; he could not dismiss
him. But a power to dismiss may be provided by the terms
of the deed. Thus, where a master agreed to take plaintiff's
son as an apprentice for three years and to teach him, and the
agreement concluded, " provided always tliat he (the appren-
tice) obeys all commands and gives his services entirely to
the business during office hours," misconduct on the part of
the apprentice was held a good answer to an action for dis-
missing the apprentice (d).

jeweller would not 1io liomiil to retain shaken, and in these days, when

an habitual thief as apprentice. In an a])prentice is rarely sent to prison,

JFise V. Wilson (1845). 1 C. & K. it woidd Le, perhajis, more correct

662, Deninnn, C.J., ruhnl that a to say, that the misconduct whicli

doctor might dismiss a " ])upil and would entitle a master to dismiss a

assistant " if he endangered his servant M'ill not entitle him to dis-

master's practiie ])y carelessness. On mi.ss an a])prentioe. It is a good plea

the other hand, probably, an appren- to an action for not teaching an

tice, having reasonable grounds for ajiprentice, that the conduct of tlie

fearing grievous bodily harm, may apprentice was such as to prevent it.

leave the service of his master ; //«///- Rayment v. Mintvii (1866), L. K. 1

well V. Counsell (1878), 38 L. T. 176. Ex. 244 ; 35 L. J. Ex. 3.
56 Geo. III., c. 139. As to damages for breach of

{d) Wcstwick V. Thcodor (1875), covenant in an indenture of aiipron-

L. R. 10 Q. B. 224 ; 44 L. J. Q. B. ticcsliip, Lnds v. Prwlinj (1862), 1

110. The rule stated in the text H. k. C. 518 ; 31 L. J. Ex. 496.
appears to have been somewhat



224' THK LAW OF MASTER AND SKRVANT.



APPENDIX A.

1. The villus stated in the text as to the cii'Liuiistaiues in which

servants may be dismissed have been reco^uniscd for many years. It

was, however, long supposed that a master had no right to dismiss a

servant for disol)edience or misconduct. In 19 Hen. XL, 30, cited in

Brookes' Abridgment, title " Labourers," 27, it is said, " It seems the

master cannot discharge his servant Avithin the time, &c., unless he

agree to it, no more than a servant can depart without the agreement of

his master." See, however, Fitzherbeit, 168. In Dalton's Justice, edition

of 1697, p. 128, the same view is stated,—" The master cannot discharge

his servant, during his'term, without the agreement of the servant. And

now by the statute 5 Eliz. 4, it must be for some reasonal)le cause

to be allowed by one justice of the peace at least ; otherwise the

master shall forfeit forty shillings. Tamen qncere. For where the

departure or putting away of the servant is by the joint consent

of the master and of the servant, such putting away or departure,

seemeth not to l^e Avithin the statute of 5 Eliz., neither is the allowance

of the justice of the peace refiuisite or needful therein." " If a servant

shall refuse to do his service, that is a departure in law, although he

stay still with his master. If the master shall detain from his servant

liis wages, meat or drink, this is a good cause of departure : But yet

this cause is now by the statute of 5 Eliz. to be alloAved of by the

justices of peace, before the servant may lawfully or safely depart. So

if the master shall license his servant to depart, or if the master, or wife

of tlie master shall beat the servant ; these were good causes for the servant

to depart, before the statute 5 Eliz. 4. But now the allowance of the

justice of the peace is reipiisite as aforesaid." The fifth section of

5 Eliz. c. 4, stated " that no person which shall retain any servant shall

put away his or lier said servant unless it be for some reasonable and

sufficient cause or matter to be allowed l)efore two justices, or one at

the least within the said county, &c." Some editors of the statute

read differently fbe section which I have (piotcd ; for "to" they read

"or," as if resort to the justices were an alternate remedy. But

the "enerally accepted reading, l)orne out by the statute itself, is that

which I have given. The question was considered by the judges in

1«:33, and their answer is clear :— " If a Avoman lieing Avith child," say

the judges in their resolution, " i)rocure lierself to be retained Avith a

master Avho knoweth nothing thereof, this is a good cause to discharge

her from her service. And if she be gotten Avitli child during her

service, it is all one. But the master in neither case must turn away

such a servant of his own authority. But if lier term be ended, or she



DUTIES OF SERVANTS. 225

lawfully discharged, the master is not bound to provide for her," &c.
Dalton's Justice, p. 1()5.

Tlie law was so understood in 1773. Lord Mansfield in Temple v.
Prescott, Cald. 14, n. — an action l)y a wet nurse who was discharged by her
mistress — ruled that frequent acts of insolence to her mistress and fits of
passion did not warrant her discharge. "No person," he said, " can be
judge in his own cause ; and this first principle could not be meant to be
overturned by any law or usage whatsoever." He refused to receive
evidence of usage, now Avell recognised, to dismiss domestic servants on
payment of a month's wages. See also Hex v. Turdehriijg, Sayer, 100
(1753). In 1777 Lord Mansfield and Willes, J., in Rex v. Brampton,



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