v. Atkinson, 8 Phil. (Penn.) 375; Cannon v. Stuart, 3 Houst. (Del.)

223.

It is held that the government may dissolve the relation of master and apprentice existing by force of municipal regulations, and the obligation of service resulting from indentures executed under or sanctioned by local law. And the relation is dissolved by the acceptance of the apprentice into the military service of the government, although his enlistment was his voluntary act, not compelled by the government, and without the consent of the master; and the wages due the former for his services in the army, as well as bounty money, belong to him, to the exclusion of any claim thereto by the latter. Johnson v. Dodd, 56 N. Y. (9 Sick. 76. See, also, Kelly v. Sprout, 97 Mass. 169.

The master will be discharged from the obligations of the indentures in a proper case, upon application to a court of competent jurisdiction. Thus, a court may discharge an apprentice for misconduct of a serious character, and such as amounts to a breach of the covenant to faithfully serve. See Sheppherd v. Maidstone, 10 Mod. 144; Mercer v. Whall, 5 Q. B. 447. Where there are equitable but not legal grounds for relief, or a court of law can furnish no equitable relief, resort may be had to a court of equity, particularly where there is fraud. Hatcher v. Cutts, 42 Ga. 616; Webb v. England, 29 Beav. 44; Cuff v. Brown, 5 Price, 297. Where a statute prescribes the mode for discharge, that remedy must be pursued. See Moody v. Benson, 4 Harr. (Del.) 115.

§ 9. Servant does not occupy as tenant. Where the occupation of a house by a servant is connected with the service, or is required by the employer for the necessary or better performance of the service, the occupation is as servant, not as tenant, and the possession is that of the master. Bertie v. Beaumont, 16 East, 34; Reg. v. Spurrell, L. R., 1 Q. B. 72; Kerrains v. People, 60 N. Y. (15 Sick.) 221; S. C., 19 Am. Rep. 158. In such case, the servant acquires no estate in the premises by the performance of his duties, even though he be permitted to use the premises for carrying on an independent business of his own. White v. Bayley, 10 C. B. (N. S.) 227. The termination of his service is also the termination of his right to the premises, and if he fails to peaceably surrender the house which he occupied as a servant, the master may forcibly eject him therefrom. Champion v. Hartshorne, 9 Conn. 564; De Briar v. Minturn, 1 Cal. 450; Rex v. Tynemouth, 12 East, 46; Haywood v. Miller, 3 Hill, 90. It is, however, held that one of two partners, joint tenants, may authorize a servant to remain in the house where the business is carried on, although the other has given him notice to go. Donaldson v. Williams, 1 Cr. & M. 345.

ARTICLE II.

OF THE MUTUAL DUTIES AND OBLIGATIONS OF MASTER AND SERVANT.

Section 1. Of the master's discipline. An apprenticeship is an important trust, and includes a due attention to the principles of moral rectitude and proper habits of industry. If the master designedly corrupts and poisons the mind of the apprentice by the infusion of immoral principles, - if he compels him to work on Sunday, or if he withholds from him the means of public worship and religious instruction, this will constitute sufficient ground for discharging the apprentice from the covenants in the indenture. Commonwealth v. St. German, 1 Brown (Penn.), 24; Warner v. Smith, 8 Conn. 14. A master has a right to use moderate corporal correction, in case of an offending apprentice. Commonwealth v. Baird, 1 Ashm. (Penn.) 267. But this right is denied as it respects ordinary hired servants. Id.; 2 Kent's Com. 261; 1 Broom & Had. Com. (Wait's ed.) 336. The only civil remedies a master has for idleness, disobedience, or other dereliction of duty or breach of contract on the part of a servant, are, either to bring an action against him, or to discharge him from service. Smith's Mast. & Serv. 69. And see ante, Vol. 3, 600, title Hire of Services, § 13.

§ 2. Of supplying necessaries to servants. The master of an apprentice is bound to supply him with necessaries, both in sickness and in health. King v. Hales Owen, 11 Mod. 278. The master is bound, from the very nature of the relation between master and apprentice, to pay for medical attendance on the apprentice (Id.; Reg. v. Smith, 8 Car. & P. 153); and the father of the apprentice is only bound where the medical services have been rendered at his instance. Easley v. Craddock, 4 Rand. (Va.) 423. See Percival v. Nevill, 1 Nott & McC. (S. C.) 452; Dunbar v. Williams, 10 Johns. 249. But it may now be regarded as the settled doctrine that a master is not bound to provide medical assistance for an ordinary hired servant, unless he stipulates for it in the contract of hiring. Wennall v. Adney, 3 B. & P. 247; Sellen v. Norman, 4 Carr. & P. 80; Clark v. Waterman, 7 Vt. 76; Sweet Water Manuf. Co. v. Glover, 29 Ga. 399.

§ 3. Employment by master. Where the contract of hiring merely contains an undertaking on the part of the master to pay stipulated wages in proportion to the work done by the servant, there is no implied obligation on the part of the master to find work. Lees v. Whit comb, 5 Bing. 34; Sykes v. Dixon, 9 Ad. & El. 693; Williamson v. Taylor, 5 Q. B. 175. Still, if the contract of hiring is capable of such

a construction, the courts are disposed to imply an agreement on the part of the master to find work, if that is necessary to enable the servant to earn wages. See Hartley v. Cummings, 5 C. B. 247; Pilkington v. Scott, 15 Mees. & W. 657.

And where a person employs another for a definite period, he is bound to provide him with work for the whole period, and he is not at liberty to make a deduction from the wages of the servant for time that he was not at work, when the failure results from his neglect or refusal to provide work. Cook v. Sherwood, 11 W. Cook v. Sherwood, 11 W. R. 595; Whittle v. Frankland, 2 Best & Sm. 49; Bromley v. School District, 47 Vt. 381. The master may discontinue the business if he chooses, but he cannot deprive the servant of his full compensation for the term through such discontinuance, or from other like cause. Elderton v. Emmons, 6 C. B. 160; Nations v. Cudd, 22 Tex. 550.

§ 4. Indemnity to servant. The law implies a contract on the part of the master to indemnify his servant from the consequences of his doing, in obedience to his master's orders, any act pursuant to orders which he was bound to abey, or which might have been either lawful or unlawful, but which the servant was induced by the conduct of his master to believe was lawful. The rule that there can be no contribution between wrong-doers has no application in such cases. Collins v. Evans, 5 Q. B. 830; Smith's Mast. & Serv. 121. And see Atkins v. Johnson, 43 Vt. 78; S. C., 5 Am. Rep. 260. But a master is not bound to indemnify his servant from the consequences of an act which is malum in se, or which the servant knows to be unlawful, although done by him in obedience to his master's orders, the servant not being bound to obey the orders of the master in such a case. Southern v. How, Cro. Jac. 471; Davis v. Arledge, 3 Hill (S. C.), 170. See, also, Duvergier v. Fellows, 10 B. & C. 826; Ives v. Jones, 3 Ired. (N. C.) 538; Horton v. Riley, 11 Mees. & W. 492; Atkinson v. Denby, 7 H. & N. 935.

For a

§ 5. Action against master for breach of contract. breach of the contract of hiring by the master the servant has two remedies, both at common law. First, he may treat the contract as a continuing one, and sue in damages for the breach thereof; or, second, he may treat the contract as rescinded, and immediately sue on the quantum meruit for the work actually performed. Planche v. Colburn, 8 Bing. 14; Lilley v. Elwin, 11 Q. B. 755; Moody v. Leverich, 4 Daly (N. Y.), 401; S. C., 14 Abb. (N. S.) 145. See ante, Vol. 3, 579, 610, title Hire of Services, §§ 15, 16.

§ 6. Wages, how to be paid. See title Hire of Services, §§ 2, 18. Unless the circumstances under which services of any sort have VOL. IV.-51

been rendered are such as to afford evidence of a contract, either express or implied, on the part of the person served to pay for them, he is not bound to do so, and no wages can be recovered by the servant for such services. Davies v. Davies, 9 Carr. & P. 87; Alfred v. Fitzjames, 3 Esp. 3; Reeve v. Reeve, 1 F. & F. 280; Munger v. Munger, 33 N. H. 581; Amey's Appeal, 49 Penn. St. 126. And the mere existence of a valid contract of hiring and service does not necessarily imply a contract to pay wages. Thus, board, lodging and clothes, together with the opportunity of learning the master's business, or the latter consideration alone, might be a sufficient compensation, especially in the case of the young. Rex v. Shinfield, 14 East, 541; Stone v. Dennison, 13 Pick. 1; Meredith v. Crawford, 34 Ind. 399.

Where a stipulated remuneration has been agreed upon, a servant has no claim of additional remuneration on the mere ground of his performance of additional services. In order to sustain such a claim, he must prove some contract, either express or implied, on the part of the master, to pay him an increased salary for his additional services. Bell v. Drummond, Peake, 45. See ante, Vol. 3, 603, title Hire of Services, § 14.

§ 7. Apportionment, when made. As to the apportionment of an apprentice fee, see Vol. I, 181; see ante, Vol. 3, 605, 610, title Hire of Services, §§ 15, 18.

§ 8. Of performance by servant. See ante, Vol. 3, 605, title Hire of Services, § 15.

§ 9. Of giving servant a character. In the absence of a speci fic agreement to that effect, there is no legal obligation binding a person who has retained another as a servant to give that person any character at all on dismissal, and no action will lie against him for refusing so to do. Carrol v. Bird, 3 Esp. 201. And, where a master does give a discharged servant a character, what he says or writes upon the subject is, in general, looked upon as a privileged communication, and no action can be maintained by the servant against him on account of it, if done bona fide, and without any malicious feeling on his part against the servant. In order to support an action it must be proved that the character given was false, and also that it was maliciously given. Fountain v. Boodle, 3 Q. B. 12; Hodgson v. Scarlett, 1 B. & Ald. 240.

If a servant obtains a place upon the strength of a character given by the master, and the latter afterward discovers circumstances which induce him to believe that the character was undeserved, he is morally bound to inform the new master of those circumstances, and the com

munication made concerning them is privileged. Gardner v. Slade, 13 Q. B. 796. So, if a servant, when he is taken into a service, brings a written character, and is afterward discharged for ill behavior, it would seem that the master does no wrong if, before he returns the character to the servant, he writes upon it that the person was afterward in his service, and dismissed for ill behavior. Taylor v. Rowan, M. & Rob. 490; S. C., 7 Car. & P. 70. See Rogers v. MacNamara, 14 C. B. 27; Hurrell v. Ellis, 2 id. 295.

§ 10. Of fidelity to master. There are many duties which are implied by law from the relationship of master and servant, which are binding upon all servants. Thus, every servant is bound to obey all the lawful orders of his master, and to be honest and diligent in his master's business. See ante, Vol. 3, 600, title Hire of Services, § 13. So, every servant is bound to take due and proper care of his master's property intrusted to him, and, if he be guilty of gross negligence, whereby the property is injured, he will be liable therefor to an action, but he is not obliged to preserve his master's property in every event. Nickson v. Brohan, 10 Mod. 109; Savage v. Walthew, 11 id. 135. A servant is likewise liable to an action at the suit of his master for fraud or misfeasance. Hussy v. Pacy, 1 Lev. 188. So, where a third person has brought an action and recovered damages against the master for injuries sustained in consequence of the servant's negligence or misconduct, the servant is liable to an action at the suit of his master to indemnify the latter. Pritchard v. Hitchcock, 6 Man. & Gr. 165; Green v. New River Co., 4 Term R. 589; Zulkee v. Wing, 20 Wis. 408. But see Colburn v. Patmore, 1 Cr. M. & R. 73.

A servant may justify a battery in the necessary defense of his master. 1 Broom & Had. Comm. (Wait's ed.) 340. And it is held that, where goods are wrongfully in the possession of another, a servant of the owner of the goods may justify an assault to repossess his master of them, no unnecessary violence being used. Blades v. Higgs, 10 C. B. (N. S.) 713.

It has, however, been questioned, whether the master can justify a battery in defense of his servant, and in one case it was adjudged that he could not. Leewerd v. Basilee, 1 Salk. 407; S. C., 1 Ld. Raym. 62. But the weight of authority is on the side that he may. & Had. Comm. (Wait's ed.) 340; 2 Kent's Com. 261. title Assault and Battery.

See 1 Broom Ante, Vol. 1,