during the year appear with child, the master may turn her away. (q) So if a servant repeatedly sleep out at night without And it has been decided in the House of Lords leave. (r) pleted before the servant is entitled to be paid. If the plaintiff persisted in refusing to obey his master's orders, I think he was warranted in turning him away. He (the master) might have obtained relief by applying to a magistrate, but he was not bound to pursue that course; the relation between master and servant, and the laws by which that relation is regulated, existed long before the statute cited. There is no contract between the parties, except that which the law makes for them, and it may be hard upon the servant; but it would be exceedingly inconvenient if the servant were to be permitted to set himself up to controul his master in his domestic regulations, such as the time of dinner. After a refusal on the part of the servant to perform his work, the master is not bound to keep him on as a burdensome and useless servant to the end of the year. In the present instance, it might be very inconvenient for the master to change the hour of dinner: the question really comes to this, whether the master or the servant is to have the superior authority?" A juror was afterwards withdrawn by con sent. Being absent when wanted; sleeping from home at night without his master's leave, &c. is sufficient cause for dismissal; and the servant will only be entitled to such wages as are due at the time of his discharge; Robinson v. Hindman, 3 Esp. R. 235. Where a clerk and traveller, hired by the year, assaulted his employer's maidservant, with intent to take liberties with her against her consent, it was held to be a good cause of immediate dismissal; Atkin v. Acton, 4 Car. & P. 208; and it seems also from that case, that a servant dismissed for such or the like cause, is not entitled to proportionate wages, even for the time he has actually served. Id. (q) Rex v Brampton, Cald. 11, 14; 5 Burn's J. 361, 362, note (a). In the case of Rex v. Brampton, Cald. 11, the principal question was, whether a maid-servant hired for a year could be discharged by her master three weeks before the end of the year, (she being with child), by his own authority, without the intervention of a magistrate, so as to prevent her gaining a settlement? By Lord Mansfield, C. J. "The question is, has the master done right or wrong in discharging the servant for this cause? I think he has done no wrong. Shall the master be bound to keep her in his house? To do so would be contra bonos mores; and in a family, where there are young persons, both scandalous and dangerous." Willes, J. said, that "this case differs from those of Rex v. Richmond, Burr. S. C. 740, and Rer v. Islip, 1 Stra. 423, where the cause of the discharge of the servant by the master was not reasonable. Here, if the master had daughters, it would not be fit that be should keep such a servant, though I think he could not avail himself of the authority of a magistrate, the jurisdiction of justices being confined to cases in busbandry." Upon this case, it has been observed by Mr. Caldecott, that all that seems established by this case, is, that a master may, without the intervention of a magistrate, dismiss his servant for moral turpitude, even though it be not such for which the servant may be prosecuted at common law. Whether he may or may not, for any other species of misconduct or general misbehaviour, though there are authorities to show that he cannot, seems, from this case, not to be fully and absolutely settled. By the general practice throughout the kingdom, and particularly in large towns, this power, however warranted, is exercised by masters; certainly, this question has not of late years been brought before the court for argument, except in the case of Burrow v. Sayer, T. R. 27 G. 2. But at the sittings at Westminster, 1773, it arose before Lord Mansfield. A wetnurse, retained for the year, was discharged by her mistress, who tendered her in proportion to the time she had served : this was refused, and the action brought for the whole year. It was proved on behalf of the defendant, that the plaintiff had been frequently insolent to her mistress, the defendant's wife, and was subject to violent fits of passion, in which she had several times frightened, and once awakened her mistress, while sleeping, before her recovery. It was also proved, that these fits of passion must be injurious to her milk: and it was insisted, that all these circumstances amounted to reasonable cause, and even created a necessity of discharging the plaintiff. But per Lord Mansfield: "No person can be judge in his own cause, and this first principle could never be meant to be overturned by any law or usage whatsoever." though it was stated as the general usage or practice in London, Westminster, and the environs, to dismiss servants with a month's wages, it was disregarded by the court, and the servant had a verdict for the whole year; Temple v. Prescott." But see the cases in the prior notes, which appear to contradict the doctrines advanced by Lord Mansfield. And (r) Robinson v. Hindman, 3 Esp. R. 235. II. RELATIVE, &c. 5. Master and (reversing the judgment of the Court of Session in Scotland) CHAP. 11. that a mistress was entitled immediately to dismiss her principal gardener, whose service was to have continued until a subsequent time, on account of his having been absent from his ser- servant. vice for four days without leave. (s) The general rule seems to be, that a master may dismiss even a yearly servant before the expiration of the year, if guilty of moral misconduct, pecuniary or otherwise, or wilful disobedience or habitual negligence. (t) A gamekeeper or bailiff guilty of misconduct, may be discharged without previous warning, and he cannot afterwards legally retain possession of a house incident to his service. (u) Other applicable cases, in which a master might discharge a servant, will be found collected, when we presently consider the misconduct for which a clerk may be discharged. (x) But the misconduct of the servant, to entitle a master immediately to discharge him, must be actual disobedience, or such improper conduct as affects the due controul over his domestic establishment, and therefore previous immorality, as having had an illegitimate child antecedent to the commencement of the service, would be no adequate ground of discharge, (y) though his debauching his female servant during the service would be otherwise. And the discharge of the servant on account of misconduct should be immediate or on repetition, for otherwise the master is to be considered as having waived the right to an immediate discharge, and could not by after-thought assign the antecedent imputation as an excuse for suddenly turning him away, without fresh cause. (z) A servant marrying is no ground of discharge, and he must serve out the time; (a) nor is sickness an adequate reason for turning away a servant before the expiration of the time of service, or even for abatement of wages, (b) though the master is not legally bound to provide medicine or medical advice; (c) but if he interfere, a contract may be inferred, so as to subject him to liability to the medical attendant, and in that case the (3) Crauford v. Reid, 1 Shaw's Rep. 124. (t) Culto v. Brouncker, 4 Car. & P. 518. (u) Moore's Rep. 8, 9; Littleton's Rep. 139; 16 East, 33. (1) Post. (y) Rer v. Westmeon, Cald. 129. (:) Semble, see Winstone v. Linn, 1 Bar. & C. 460, and 2 D. & R. 465, S. C. (a) Com. Dig. Justice, Peace, B. b. 3; Dalt. c. 58. (b) Dalt. c. 58; 2 H. Bla. 606; Rex v. Winter, Cald. 298; Rex v. Sudbrooke, 1 Smith's R. 59. (c) Wennall v. Adney, 3 Bos. & Pul. 247; Sellen v. Norman, 4 C. & P. 80; Watling v. Walters, 1 C. & P. 132; Newly v. Wiltshire, 2 Esp. R. 739. CHAP. II. II. RELATIVE, &c. 5. Master and servant. Giving charac ters. master could not deduct the amount of his payments from the wages.(d) Insanity of the servant would not, in strictness of law, determine the contract of hiring. (e) But it might be an adequate ground for a magistrate discharging a servant in husbandry;(ƒ) or if the servant thereby became dangerous to go at large, proceedings might be had under the statute against lunacy, which would at least relieve the family from all present danger.(g) In the case of a domestic servant hired in the general way, it appears to have been considered that he is entitled to his wages up to the time he actually serves, though he die or do not continue in the service the whole year, either from misconduct or otherwise, (h) but not to any wages after the time of such discharge; though in case of felony or embezzlement, or other gross misconduct by a clerk, he forfeits an arrear of unpaid salary; (i) and a master cannot, without express stipulation, deduct from the wages the value of articles broken or lost by the servant's want of care, however gross.(k) In many cases therefore it is expedient, and the practice in hiring waiters at inns and taverns is for the servant to make a deposit, or expressly to provide against such loss, for though a cross action for gross want of care would unquestionably be sustainable, (k) yet it would scarcely ever be advisable to sue a servant on such a claim. In general, in cases of domestic servants, regular payment of the wages will be presumed, after a lapse of time subsequent to leaving his service, and without claim, it not being usual to allow such claims to go long unsatisfied, or to take receipt for the payment. (7) A gamekeeper, guilty of disobedience, may be discharged forthwith without any previous notice,(m) and his residence in a house by permission of the lord of a manor, is lawful only whilst he is gamekeeper (n) It is not legally compulsory on a master or mistress to give a discharged servant any character, and no action is sustainable for the refusal; (0) but if a character be given, it must accord II. RELATIVE, &c. ter and servant, with the truth, for if a false good character be given, and the CHAP. II. servant afterwards rob his new master, the person who gave such false character is liable to an action, and to compensate 5. Master and for the entire loss, (p) and he is liable to punishment in certain servant. cases of false character, under the statute 32 Geo. 3, c. 56.(q) On the other hand, if a bad character of a servant be untruly and maliciously given, the party giving it will be liable to an action for defamation, (r) though until the untruth of a character and express malice have been proved, the communication is presumed to have been privileged, and no action is tenable. (s) In general there is a reciprocal right in every description of Defence of masmaster and servant to defend each other even with force. (t) &c. If a servant be killed, though the master sustain a loss of service, the civil remedy is merged in the felony.(u) But if a person be strictly a servant, (and not a mere performer at a theatre, (x)) the employer may sue for his battery and consequent loss of service, or for a menace per quod the servant could not finish his work; so he may sue for abducting or harbouring his servant after request; (y) but after recovering against the servant of a penalty or damages for absenting himself, an action cannot also be sustained against a third person for harbouring him. (2) If several conspire to injure a person in his trade, by enticing away a servant or journeyman, they may be indicted or sued for the conspiracy; (a) an action on the case is also the common remedy for debauching a servant per quod servitium amisit, (b) or trespass lies if the seduction were accompanied with an illegal entry into the master's house. (c) It is incumbent on every master in prudence, before he hires Liability of a servant or clerk, well to ascertain his character for care and master, &c. good conduct, for a master is in general liable civilly, and sometimes criminally, for torts committed by his servant in the course of or under colour of his employ. Thus a baker is indictable for the sale of bread in which his servant had improperly mixed alum, (d) and for a nuisance committed by his servant, as by throwing dirt into the highway; (e) so the proprietor CHAP. II. of a newspaper is liable, criminally as well as civilly, for the II. RELATIVE, publication of a libel, though he has nothing to do with the publication, and the whole is conducted by his servants. (ƒ) &c. 5. Master and servant. Masters and clerks. But a master is not liable for the wilful misfeazance of his servant, losing sight of his master's employ, as for wilfully driving his master's carriage against that of another, (g) though if the same act had been done negligently or merely injudiciously, the master would have been liable; (h) and where a person, only occasionally employed by the defendant as his servant, having been sent by him on his business, took the horse of another person, in whose service he also worked, and in going, rode over the plaintiff, it was left to the jury whether he acted under implied authority of the defendant, and they having found in the affirmative, the court refused to grant a new trial. (i) But where a postchaise is hired, the postmaster, and not the hirer, is in general liable for any damage. (k) Clerks are only a superior description of servants, whose duties are limited to the particular trade or employment to serve in which they are hired. In hiring these, it is particularly expedient to specify the terms in an express written contract, and to add, "that in all respects not particularly specified, the clerk shall perform the like duties, and observe the same conduct as all faithful and well conducted clerks in a similar station ought to observe." It has been held that a clerk of this nature, hired generally at specified yearly wages, is to be considered as hired for an entire year, and that the service cannot be put an end to before the end of an entire year, unless upon some adequate ground of misconduct on the part of either party. (1) The doctrine of a month's wages or a month's warning does not apply to a clerk. (m) In case the service should continue beyond a year, yet the intendment would be in favour of another year's service; but it is not settled that with analogy to tenancies of real property, half a year's or three months', or any specific notice of the determination of the service at the end of a year, is necessary, (") probably a quarter's notice would be held sufficient; and in a late case, it seems to have been considered, that (f) Rex v. Walter, 3 Esp. R. 21; Rex v. Alexander, M. & M. C. C. (g) M Mans v. Cricket, 1 East, 106. (h) Croft v. Alison, 4 B. & Ald. 590; and Bowcher v. Moidstram, 1 Taunt. 568. (i) Goodmen v. Kenwell, 1 M. & P. 241; 3 Car. & P. 167, S. C. (k) Smith v. Laurence, 2 M. & R. 1; and see 5 B. & C. 547. |