whole, show that if the contract of service remains in force a servant, even if ill, will be entitled to his wages. In Cuckson 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 contract 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 Court 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 Ridgway v. The Hungerford Market Company (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. Fearon (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 misdirection. See also Read v. Dunsmore (b); Mercer v. (y) R. v. Islip (7 Geo. I.) Str. 422; Rex v. Sudbrook (1803), 1 Smith, 55; Rex v. Winterset (1783), Cald. 298; Ex parte Harris (1845), 1 De Gex, 165; Carr v. Hadsill, 39 J. P. 246; K. v. Raschen (1878), 38 L. T. 38; 42 J. P. 38 (no answer to an action for wages that plaintiff was ill and unable to work owing to his own misconduct); Robinson v. Davison (1871), L. R. 6 Ex. 269. In Rex v. Sutton (1794), 5 T. R. 657, it was held that absence in order to cure (z) See note (a). Whall (c); and Horton v. McMurtry (d). The authorities and the present practice are in favour of the statement given above. It is not necessary that a servant should be dismissed by his master for a valid reason; it is sufficient 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 was first laid down in Ridgway v. The Hungerford Market Company (e). It was followed in Baillie v. Kell (ƒ). 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 (g). 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 Cussons v. Skinner (h), 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 afterwards, by showing the fact existed, and that he knew it, justify such discharge." (c) See (1845) 5 Q. B. 447. (d) See especially remarks of Pollock, C. B., at p. 265, 29 L. J. Ex. 265, Price v. Mowatt (1862), 11 C. B. 508; East Anglian Ry. Co. v. Lythgoe (1851), 2 L. M. & P. 221 (e) See above. The head note to the report of this case limits the doctrine to cases in which the master had no knowledge of the facts constituting the justification. But no such limitation appears in the judgments. (f) (1838) 4 Bing. N. 638. (g) Crowther v. Ramsbottom (1798), 7 T. R. 654; Grenville v. College of Physicians (12 W. III.), 12 Mod. 386. (h) (1843) 11 M. & W. 161, 172; Smith v. Allen (1862), 3 F. & F. 157, the ruling in which seems doubtful. The introduction of this qualification was not necessary for the decision of the case, and it is to be observed that the Court quote as their authority Ridgway v. The Hungerford Market Company, where no such limitation is mentioned. In Spotswood v. Barrow (i) the Court of Exchequer followed Ridgway v. The Hungerford Market Company. 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 whether or not the defendants discharged the plaintiff for that cause. This was held to be a misdirection; the motives or intentions of the defendants being immaterial, if their conduct was in fact justified. The fact of knowledge, however, may be sometimes material. 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 (k). It might also be material in regard to the question of condonation (1). When a servant is discharged for a valid reason before the expiration of the time for which he was engaged, he cannot recover the value of services which he has rendered under the contract. Of This follows from the nature of indivisible contracts. course a servant does not forfeit wages which are due but not paid. The doctrine was above enunciated by Lord Ellenborough, who in a case at Nisi Prius in 1817-an (i) (1850) 5 Ex. 110; see Alderson, B., in Willets v. Green (1850), 3 C. & K. 59. (k) Mercer v. Whall (1845), 5 Q. B. 447, 466, by Denman, C.J. (1) The rule has not been followed in America. Query-would a servant be able to set up, as ground of depar ture from service, a fact which he did not know at the time? action by a farm servant who had been dismissed for disobedience (m)—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, C.J., in Turner v. Robinson (n). But it was laid down in Ridgway v. Hungerford Market Company (0), and Lilley v. Elwin (p); and, however harsh the rule may seem, it is undisputed. 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 (q). A master is entitled to all the earnings of his apprentice. He is entitled to the earnings of his servant acquired while 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, none of which have been overruled, that a master may sue for what his apprentice has earned, even when serving with some other person. In Barber v. Dennis (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 the hands of the defendant. the tickets lay. The same It was held that trover for was held entitled to his wages up to (r) (1783) 6 Mod. 69; Anon. 12 Mod. 415. servants. They apply," said Cockburn, C.J., in Morison v. Thompson (s), "to all cases of employment as servants or agents, the profits acquired by the servant or agent in the course of, or in connection with, his services or agency belonging 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 servant 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 belong to the master. Such was the case in Makepeace 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 (8) (1874) L. R. 9 Q. B. 480; 43 L. J. Q. B. 215; 30 L. T. 869; 22 W. R. 859. The judgment of the Court is that of Cockburn, C.J.; Blackburn, J.; and Archibald, J. See also Thompson v. Havelock (1808), 1 Camp. 527. (t) This case does not, however, it is submitted, overrule Treswell v. Middleton, Crok. Jac. 653; 2 Roll. 269. (Judgment for plaintiff, in action for debt against defendant who had retained his servant to make chairs for five days. Judgment reversed; debt did not lie because it may be the master never consented to the retainer, and the servant never intended to contract for his master.) Carson v. Watts (1784), 3 Doug. 350 (prize-money gained by apprentice serving on board ship-of-war does not belong to master of apprentice. This turned on usage); Eades v. Vandeput (1785), (25 Geo. 3), 5 East, 39n. (but see Foster v. Stewart); Bright v. Lucas (1796), 2 Peake, 12 (indentured apprentice who had deserted from his master's service cannot maintain action for wages); Lightly v. Clouston (1808) (the master of apprentice who has been seduced from his work may maintain action of indebitatus assumpsit against the person who has seduced him); Foster v. Stewart (1814), 3 M. & S. 191 (plaintiff's apprentice deserted from plaintiff's ship; went on board defendant's ship; defendant persuaded him to remain : held plaintiff could waive tort and bring action of assumpsit against defendant). (u) (1813) 4 Taunt. 770. Here, however, the action was in trover for the book. |