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embodied, the patent is not avoided by evidence that the 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 patent for a certain roller when it was proved that he had been told of it by one Kay, whom he had had in his service and whom he employed in making models (~).
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 misconduct (a). “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” (6). So, in Phillips v. Clift (c), it was held to be no answer to an
(2) Erle, J., in Allen v. Raucson (1845), 1 C. B. 551, 567. But the above does not seem to be a principle of law, p. 576, and see Bloxam v. Elsce (1825), 1 C. & P. 558 ; Rollo v. Thompson (1857), 19 D. 994.
(y) Rex v. Arkwright (1785), cited in Hill v. Thompson, 8 Taunt. 395.
(z) Curtis, Patent Law, 101 ; and see Re Russell's Pa'ont, 2 De G. & J. 130.
(a) Winstone v. Linn (1823), 1 B. & C. 460, 470 ; 2 D. & R. 465; Wise v. Wilson (1845), 1 C. & K., Denman, C.J., at p. 669.
(6) 20 Geo. II., c. 17.
(c) (1859) 4 H. & N. 168 ; 28 L. J. Ex. 153. See also Addams V. Carter (1862), 6 L. T. N. S. 130; Mercer v. Whall (1845), 5 Q. B. 447. In Cox v. Mathews (1861), 2 F. & F. 397, Byles, J., ruled that a
action against the master who had turned away his apprentice, 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 that he (the apprentice) 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 dismissing the apprentice (d).
jeweller would not be bound to retain an habitual thief as apprentice. In Wise v. Wilson (1845), 1 C. & K. 662, Denman, C.J., ruled that a doctor might dismiss a “pupil and assistant if he endangered his master's practice by carelessness. On the other hand, probably, an apprentice, having reasonable grounds for fearing grievous bodily harm, may leave the service of his master; Halli. well v. Counsell (1878), 38 L. T. 176. 56 Geo. III., c. 139.
(d) Westwick v. Theodor (1875), L. R. 10 Q. B. 224 ; 44 L. J. Q. B. 110. The rule stated in the text appears to have been somewhat
shaken, and in these days, when an apprentice is rarely sent to prison, it would be, perhaps, more correct to say, that the misconduct which wouli entitle a master to dismiss a servant will not entitle him to dismiss an apprentice. It is a good plea to an action for not teaching an apprentice, that the conduct of the apprentice was such as to prevent it. Rayment v. Minton (1866), L. R. 1 Ex. 244 ; 35 L. J. Ex. 3.
As to damages for breach of covenant in an indenture of apprenticeship, Lewis v. Peachey (1862), 1 H. & C. 518 ; 31 L. J. Ex. 496.
1. The rules stated in the text as to the circumstances in which servants may be dismissed have been recognised for many years. It was, however, long supposed that a master had no right to dismiss a servant for disobedience or misconduct. In 19 Hen. VI., 30, cited in Brookes' Abridgment, title “Labourers,” 27, it is said, " It seems the master cannot discharge his servant within the time, &c., unless he agree to it, no more than a servant can depart without the agreement of his master.” See, er, Fitzherbert, 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 reasonable cause to be allowed by one justice of the peace at least ; otherwise the master shall forfeit forty shillings. Tamen quære. 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 be within the statute of 5 Eliz., neither is the allowance of the justice of the peace requisite 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 his 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 allowed 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 the 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 requisite as aforesaid." The fifth section of 5 Eliz. C. 4, stated " that no person which shall retain any servant shall put away his or her said servant unless it be for some reasonable and sufficient cause or matter to be allowed before two justices, or one at the least within the said county, &c.” Some editors of the statute read differently the section which I have quoted; for “to” they read “or," as if resort to the justices were an alternate remedy. But the generally accepted reading, borne out by the statute itself, is that which I have given. The question was considered by the judges in 1633, and their answer is clear :-“If a woman being with child,” say the judges in their resolution, procure herself to be retained with a master who knoweth nothing thereof, this is a good cause to discharge her from her service. And if she be gotten with 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 her term be ended, or she
lawfully discharged, the master is not bound to provide for her," &c. Dalton's Justice, p. 165.
The law was so understood in 1773. Lord Mansfield in Temple v. Prescott, Cald. 14, n.—an action by 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, “
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 well recognised, to dismiss domestic servants on payment of a month's wages. See also Rex v. Tardebrigg, Sayer, 100 (1753). In 1777 Lord Mansfield and Willes, J., in Rex v. Brampton, had to consider the same point. Relying mainly upon a dictum in Viner's Abridgment, title Reinoval, p. 459, which does not bear out Lord Mansfield's statement, they ruled that a master was entitled to turn away a maidservant who was with child. “Shall the master," asked Lord Vansfield, “ 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." This decision was put by Willes, J., on the ground that the justices had no jurisdiction in case of domestic servants. See Rex v. Welford, Cald. 56. To show how the law was understood till some time after Rex v. Brampton, I may refer to Mr. Bird's book on the “Law of Master and Servant," the first edition of which was published in the end of last century. In the third edition, published in 1801, he cites at p. 3 Rex v. Brampton, to show that notwithstanding the statute of Elizabeth, if a servant be guilty of incontinence or other moral offence whilst in his master's service, the master may discharge him without application to a justice. But Mr. Bird adds, “neither for rudeness or other misbehaviour of servant, can the master discharge him, before the end of his term, nor can the servant leave his master on account of ill-treatment by the master or mistress ; but in
; these and like cases, application must be made to a justice for a discharge as directed by the statute of Elizabeth.” See remarks of Lord Kenyon in Rex v. Hulcot (1796), 6 T. R. 587, and Rex v. Sutton (1794), 5 T. R. 659.
Sections 5, 6 and 9 of the statute of Elizabeth are mentioned by Mr. Crabb in his Digest of Statutes as being in force in 184+; they do not seem to have been repealed until 1875. See Chitty's General Practice (edition of 1837), p. 76. I do not find any clear assertion of the principle, now universally admitted, that
a master may for disobedience, &c., discharge any servant, until 1817, when Lord Ellenborough at Nisi Prius, in Spain v. Arnott, 2 Starkie, 256,—a case of a servant in husbandry-said, “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.” These words seem directly contrary to the express terms of the 5th section. (2) At
common law a person is not entitled to treat a contract as at an end for every breach, but only when there is a breach which goes to the root of the matter and which cannot be properly compensated for : Simpson v. Crippin (1873), L. R. 8 Q B. 14. When a singer who had engaged with defendant to sing for fifteen weeks, and who had agreed that he would be ready for rehearsals six days before the engagement commenced, failed to attend these rehearsals, it was held that the defendant was not entitled to refuse to take the plaintiff into his service: Bettini v. Gye (1876), L. R. 1 Q. B. D. 183.
No doubt failure or refusal on a single occasion to do what one was bound to do under a contract of personal service-as in Poussard v. Spiers (1876), L. R. 1 Q. B. D. 410, which was a case of failure on the part of a leading singer to join in the opening performance of a new opera-might go to the root of the contract and justify recision. But apart from the decisions which are quoted in the text, it might not have occurred to anyone that refusal by a maidservant to answer a bell, or by a clerk to fetch a book on a single occasion, would justify instant dismissal and forfeiture of wages : Gould v. Webb (1855), 4 E. & B. 933.
There is an absence of authority in English law as to the place at which a servant is bound to serve, p. 184. The point has been much discussed in the Scotch Courts, and the following is said to be the rule on the subject :-“It seems to be the general opinion of lawyers, that all domestic servants, secretaries, and other servants similarly circumstanced whose duties have relation solely to the master's presence are bound to attend his movements, and cannot object to go with him from country to town, from town to country. But this under the following conditions : No servant is bound to go out of the British Isles to a foreign country, seeing that there he is without the protection of British law, and in circumstances, it may be, far different from those under which he would have lived in his own country. Nay, some lawyers think, that no servant hired in Scotland is bound to go to either England or Ireland.” “In the case of servants whose work has reference to a place, not to the master's person, such as overseers, ploughmen, or workmen at manufactories, the master cannot remove the servant to any other farm or manufactory at any distance inconvenient to the servant. The place where the master has his work at the time of the engagement would be held the place where (in the absence of express stipulation) it is implied that the servant was to labour ; and,