the servant was—as there is with regard to domestic servants, who are generally considered entitled to wages for the time they serve, although they do not continue in the service during the whole year-the servant would probably be held entitled to recover wages for the period of actual service."* The executors or administrators of their deceased master are the persons to whom servants must look after his death for the payment of wages earned during his life. As to the payment of the servant's wages in case of his master's bankruptcy, see ante, page 16. If a servant dies between two of the usual days on which his wages are payable, his representatives can recover nothing for the period which has elapsed since the last pay day, unless there be a custom to the contrary in the particular occupation in which the servant was engaged. Such a custom exists in the case of domestic * Smith's Law of Master and Servant, p. 126. The result of the law thus laid down is that, except in the case of domestic servants, and others to whom the same custom applies, a servant (using that word in the largest sense) would not, on the death of the master or employer, be able to recover any wages or salary for the time that may have elapsed since the last usual day of payment. For instance, supposing the engagement was a yearly one, but the salary was pay. able quarterly, then the servant could recover from the executors so much salary as might be due up to the last pay-day; but he could recover nothing for the broken time between then and the day of the master's or employer's death. The right of domestic servants to recover a pro rata portion of their wages, calculated up to the day of the master's death, is, we believe, beyond question, notwithstanding the somewhat hesitating language of the learned author we have quoted. servants, whose legal representatives can therefore claim their wages down to the day of their death. A master whose servant leaves him and goes into the army or navy must, under the Mutiny Act, pay him his wages up to the time of his leaving the service. But, as a general rule, when a servant whose wages are due periodically refuses to perform his part of the contract, and serve his master in the manner contracted for, or so conducts himself that the master is justified in discharging him without notice, he is not entitled to any wages for that portion of time during which he has served since the last periodical payment of wages. This rule is of universal application, whether wages are payable weekly, monthly, quarterly, or even yearly; and it extends to all classes of servants, although (as we have already mentioned) it is sometimes thought that domestic servants constitute an exception.* A servant can recover in the county court any wages not exceeding £50 that may be due to him; but if he claims more than £20, his master may cause the action to be removed into one of the superior courts; † that is to say, he may cause the action in the county court to be stayed, leaving the servant to bring another in a superior court. * See further on this point, ante, p. 26. + In order to do this, he must give security, to be approved by the registrar of the county court, for the amount claimed, and the costs of trial in one of the superior courts of common law, not exceeding in the whole the sum of £150. This rule is, of course, not confined to actions between masters and servants. It applies to all actions or contracts. Under the 33 & 34 Vict., c. 30, s. 1, the judges of the county courts are prevented from "attaching" the wages of "any servant, labourer, or workman," to answer a judgment. That is to say, supposing a judgment be obtained against such a person, they cannot require the master to pay a certain proportion of his wages to the judgment creditor, handing over only the balance to the servant. CHAPTER VI. THE DISCHARGE OF SERVANTS. Grounds on which Master may dismiss Servant.-Disobedience. -Misconduct.-Negligence. - Incompetence.-Permanent Disability.— Master need not assign Cause for Dismissal.—Claim to Wages in Case of Dismissal.-Damages. WHEN We speak of the right of the master to discharge a servant, we mean the right of the former to discharge the latter without waiting for the expiration of the term contemplated in the contract of hiring, or without giving the notice stipulated for in that contract, or required by some custom either of a general nature, or one applicable only to the particular trade or occupation, or in the particular locality. When the master possesses this right of instantly discharging his servant, he may, if the latter refuses to quit his premises, eject him by force. We do not, however, recommend him to act personally in the matter. It is much the better course to invoke the assistance and intervention of a police-constable. "It is," says Mr. Manley Smith, in his able work on this subject," difficult to lay down any general rule as to what causes will justify the discharge of a ser vant which shall comprise and be applicable to all cases; since whether or not a servant in any particular case was rightfully discharged must, of course, often depend upon the nature of the services which he was engaged to perform, and the nature of his engagement. It is conceived, however, that, according to the decisions on the subject, the discharge of a servant may be justified for the following causes :-- "1. Wilful disobedience of any lawful order of his master. 2. Gross moral misconduct, whether pecuniary or otherwise. 3. Habitual negligence in business, or conduct calculated seriously to injure his master's business. 4. Incompetence, or permanent disability from illness." It will be convenient to deal separately with the cases which fall under each of these rules : 1. Wilful disobedience of any lawful order of the master. If a servant be ordered by his master to go and do a particular thing which the master has a right to command, then if the servant refuses or wilfully omits to do what he is told, he may be immediately dismissed. Also if general directions are given to a servant for the performance of his duties, as if he is ordered always to do a particular thing in a particular way, then if he repeatedly disobeys or fails to obey those orders he may be dismissed. But a mere occasional, casual, and negligent failure of duty in respect to a general order will not justify the immediate dismissal of a ser * See, as to what a master may lawfully command or require, Chapter III., ante, p. 39. |