discharge at any moment for misconduct or disobedience of lawful orders; and in such case he is not entitled to a month's wages(7), nor can he claim payment for the time during which he may have actually served, if thus dismissed before the period for which he was originally hired(s), and at a time when no wages were actually due(†).(128)

Although the servant has no right to a character(u),(129) yet, if the master assume to give the character of a servant, he must give it bona fide; for he who gives a false character, charging the servant with faults without just cause, and with a malicious design to injure him, is liable to an action(x); proof of malice is, however, necessary to support such action, though where the character given

(r) Turner v. Mason, 14 M. & W. 112; Robinson v. Hindman, 3 Esp. 235.

(8) Turner v. Robinson, 5 B. & Ad. 789; Spain v. Arnott, 2 Stark. N. P. C. 256.

(t) If wages have become due, but have been left unpaid, a subsequent dismissal for mis

conduct is no answer to a claim for them. See Taylor v. Laird, 1 H. & N. 266.

(u) Carrol v. Bird, 3 Esp. 201. (x) Rogers v. Clifton, 3 B. & P. 587; Pattison v. Jones, 8 B. & C. 578.

(128) There are several grounds upon which a servant may be discharged by his master. Intoxication to such an extent that a servant is thereby unfitted for the discharge of his duties, is a good ground for his dismissal by his master. Gonsolis v. Gearhart, 31 Miss. 585; Huntingdon v. Claflin, 38 N. Y. (11 Tiff.) 182; 6 Trans. App. 168; 10 Bosw. 262.

If the person employed is entirely incompetent to perform in a proper manner the work he undertakes to do, he may be discharged. Horton v. McMurtry, 5 Hurlst. & Norm. 667. The refusal of a servant to execute the lawful commands of his master is a sufficient ground for his dismissal. Spain v. Arnott, 2 Stark. 256; Lilley v. Elwin, 11 Q. B. 742; 17 L. J. Q. B. 132.

But under an ordinary contract of hiring by the day, the laborer is not bound to do more than a day's work for the purpose of completing a particular piece of work upon which he may be employed. Wyngert v. Norton, 4 Mich. 286.

If the hiring is for a definite period, and the master discharges the servant before the expiration of the term, and without a legal excuse or cause, he will be liable for the resulting damages. Costigan v. Hudson River R. R. Co., 2 Denio, 609; Cox v. Adams, 1 Nott. & McCord, 284; Sherman v. Champlain Transp. Co., 31 Vt. 162; Stewart v. Walker, 14 Penn. St. 293; Miller v. Goddard, 34 Me. 102.

Generally, the measure of damages is the amount which was to have been paid, if the services had been rendered, subject to a deduction for such amount as the servant has earned elsewhere in the mean time. Ib.

So on the other hand, if the servant leaves his master before the expiration of the time agreed upon, he will forfeit his right to any compensation for the services previously rendered. Lantry v. Parks, 8 Cow. 63; Galvin v. Prentice, 45 N. Y. (6 Hand) 162; Coe v. Smith, 1 Carter (Ind.), 267; Hawkins v. Gilbert, 19 Ala. 54; Swanzy v. Moore, 22 Ill. 63; Rice v. Dwight Manuf'g Co., 2 Cush. 80.

Where the party contracting to serve is an infant, and he leaves the service before the expiration of the time agreed upon, an exception to the general rule is recognized, because he is not bound by his contract, and may, therefore, recover for his services, without deducting any thing for the damages occasioned by his leaving the service. Derocher v. Continental Mills, 58 Me. 217; 4 Am. Rep. 286; Lufkin v. Mayall, 25 N. H. 82; Thomas v. Dike, 11 Vt. 273; Vent v. Osgood, 19 Pick. 572; Whitmarsh v. Hall, 3 Denio, 375.

(129) A master is under no obligation to give a servant a testimonial of character. And if he states or writes to a third person what he thinks or knows of the servant, no action will lie, even though the statements are not true, unless it is shown that the false statement was made with malice. Fowles v. Bowen, 30 N. Y. (3 Tiff.) 20; Ormsby v. Douglass, 37 N. Y. (10 Tiff.) 477; 5 Trans. App. 100; Easley v. Moss, 9 Ala. 266; White v. Nicholls, 3 How. (U. 8.) 266.

is false, slight circumstances may suffice as evidence of it(y). It is clear however that the master owes a duty to a person about to engage a late servant, which

compels him to make full and true, if he make any, answer *to an [ *510] inquiry as to character(); consequently, where there is no proof of malice, such communication is privileged (a).

2. An apprentice (from apprendre, to learn,) is usually bound for a term of years, by deed indented, or indenture, to serve his master, and to be maintained and instructed by him.(130) This is usually done to a person in trade, in order that the apprentice may learn a business; and

Apprentices.

(y) Kelly v. Partington, 4 B. & Ad. 700; Fountain v. Boodle, 3 Q. B. 5.

(z) Child v. Affleck, 9 B. & C. 403; Gardner v. Slade, 13 Q. B. 796.

(a) Child v. Affleck, 9 B. & C. 403; Edmondson v. Stephenson, Bull. N. P. 8; Weatherston v. Hawkins, 1 T. R. 110; Taylor v. Hawkins, 16 Q. B. 308.

(130) In the United States contracts of apprenticeship are neither so frequent nor so important as in England. The contract is in writing, and usually under seal; and it is construed like any other writing, by the ordinary rules of law relating to contracts. As the apprentice is a minor, the contract is not only executed by the minor, but by his father or guardian, who covenants as to the service; while the master covenants to teach, to supply necessaries, and to pay or compensate in the manner agreed upon.

In New York an infant is not bound by the indenture of apprenticeship, unless he signs it; and if it is informal or defective, no one but the infant can take advantage of it, if executed by the father or guardian. McDowles, in matter of, 8 Johns. 328; Fowler v. Hollenbeck, 9 Barb. 309; Doane v. Covel, 56 Me. 527; Page v. Marsh, 36 N. H. 305. At common law the parent might bind the infant an apprentice, and the statute merely controls and limits the authority by requiring the infant to be a party to the deed. Ib.; People ex rel. Barbour v. Gates, 43 N. Y. (4 Hand) 40. And if the father is dead, or not capable of giving a legal consent, the mother may do so. Ib.

The father of an illegitimate child cannot authorize it to be bound out, against the wishes of the mother, if she is able to support it. Timmins v. Lacy, 30 Tex. 115.

Where a minor apprentice becomes entitled to bounty money by reason of his enlistment as a soldier, such money belongs to himself, and not to his master. Kelly v. Sprout, 97 Mass. 169; United States v. Bainbridge, 1 Mason, 84.

Where the contract provided that the parents of the apprentice were to have a specified sum for clothing for the minor, and were to board him at a specified price during his apprenticeship, where all the parties resided in the same place, it was held that it was a breach of the contract for the master to remove into another state so that the boy could not reside at home. Walters v. Morrow, 1 Houston (Del.), 527. Ordinarily the master cannot remove from the state where the apprentice was bound, and take the latter with him, unless the indentures provide for this, or the nature of the service requires it, as in the case of a seafaring life. Commonwealth v. Edwards, 6 Binn. 202; Coffin v. Bassett, 2 Pick. 357; Vickere v. Pierce, 12 Me. 315; Randall v. Rutch, 12 Pick. 107.

An omission to specify the trade or employment which the apprentice is to learn does not render the indentures void. Fowles v. Hollenbeck, 9 Barb. 309.

The contract of apprenticeship is one of personal trust, and is not assignable, so as to bind the apprentice. Tucker v. Magee, 18 Ala. 99; Hall v. Gardner, 1 Mass. 172; Stringfield v. Heiskell, 2 Yerg. 546; Stewart v. Rickets, 2 Hum. 151; Hudnut v. Bullock, 3 Marsh. 300; Martin v. Rice, 2 Browne, 191; Futrill v. Vaun, 8 Md. 402. Yet the master may bind himself to a third person that the apprentice will serve him. Guilderland v. Knox, 5 Cow. 363. And a change of residence and a service by the apprentice will, after the legal time, gain him a settlement in the town where he may reside. Guilderland v. Knox, 5 Cow. 363. A master has a right to use moderate correction in case of an offending apprentice. Com monwealth v. Baird, 1 Ashm. 267.

But the apprentice is not bound to remain with the master after cruel and inhuman treatment. McGrath v. Herndon, 2 Monr. 82; S. C. again, 4 id. 480, 481. See Miller v. Stewart, 12 La. An. 170.

sometimes a large sum is given with him, as a premium for instruction. Though an apprentice is generally bound by his father or friend, yet the binding is not valid, unless he personally execute the indenture(b), though the contract of apprenticeship may be entered into by an infant, as the law considers it to be for his benefit(c). To the above rule as to consent there is an exception in the case of a child whose parents are unable to maintain him(d); for such a child may be apprenticed without his own consent(e), by the overseers(f) in a parish not included in a union, and by the guardians(g) of the poor in one which is so included; in the former case the consent of two justices being necessary (h), though not so in the latter(i). The justices were formerly sole judges of the persons to whom parish apprentices should be bound, and these persons were obliged to receive them(k), but it *has since been enacted that no one [*511] can be compelled to take an apprentice against his will(). The contract of apprenticeship may (provided the indentures be cancelled (m)), be determined by consent of the parties to it, though if the apprentice be an infant at the time, it is necessary that the determination be for his benefit(n). Such a contract is also determined by the bankruptcy of the master(o), or his death(p) (unless there be a covenant for continuing the service with his executors (q)); or by the death of the apprentice. Justices of the peace, moreover, and courts of quarter sessions, who have under various statutes(r) jurisdiction in cases of apprenticeship, may order the discharge of an apprentice, and a return of part of the premium paid on his being apprenticed.

3. Labourers constitute a third class of servants; they are generally hired by the day or the week, and do not live intra mænia, as part of the family. Concerning labourers, various statutes have made regulations(s).

Labourers.

(b) R. v. Cromford, 8 East, 25; R. v. Arnesby, 3 B. & Ald. 584.

(c) Newbury v. St. Mary's, Reading, Foley, P. L. 154; R. v. Arundel, 5 M. & S. 257. (d) 43 Eliz. c. 2, ss. 1, 5.

(e) No child can be apprenticed without his consent to a chimney-sweeper, 4 & 5 Will. 4, c. 35; or to the sea service, 17 & 18 Vict. c. 104, ss. 141-145.

(f) 56 Geo. 3, c. 139, s. 1.

(g) 7 & 8 Vict. c. 101, s. 12.

(h) R. v. Bloomsbury, 4 E. & B. 520.

(1) Except in the case of an apprentice to the sea service. 17 & 18 Vict. c. 104, s. 142; 43 Eliz. c. 2, ss. 1, 5.

(k) 8 & 9 Will. 3, c. 30, s. 5; Anon. Salk. 67; Minchamp's Case, Salk. 491.

(7 & 8 Vict. c. 101, s. 13.
(m) R. v. Bow, 4 M. & S. 383.

(n) R. v. Weddington, Burr. S. C. 766; R. v. Spawnton, ib. 801.

(0) 12 & 13 Vict. c. 106, s. 170.

(p) Baxter v. Burfield, 2 Str. 1266.

(q) Cooper v. Simmons, 7 H. & N. 707.

(r) See 20 Geo. 2, c. 19, s. 3, et seq.; 6 Geo. 3, c. 25, ss. 1-3; 32 Geo. 3, c. 57; 33 Geo. 3, c. 55, s. 1; 4 Geo. 4, c. 29; c. 34, ss. 1, 2; 5 & 6 Vict. c. 7.

(8) By various provisions of the statute 5 Eliz. c. 4, all single men between twelve

Where an apprentice is employed by a third person without the knowledge or consent of the master, the master is entitled to all the apprentice's earnings, whether such third person did or did not know that he was an apprentice. Hiatt v. Gülmer, 6 Ired. 450; Hays v. Borders, 1 Gilm. 46; McKay v. Bryson, 5 Ired. 216; James v. Le Roy, 6 Johns. 274; Munsey v. Goodwin, 3 N. H. 272; Bowes v. Tibbets, 7 Greenl. 457; Conant v. Raymond, 2 Aik. 246; Stout v. Woody, 63 N. C. 37.

But in an action for enticing an apprentice away from his master, or for harboring him, a knowledge of the apprenticeship by the defendant must be shown, to authorize a recovery. Stuart v. Simpson, 1 Wend. 376; Caughey v. Smith, 47 N. Y. (2 Sick.) 244; Butterfield v. Ashley, 6 Cush. 249; 2 Gray, 254; Ferguson v. Tucker, 2 Har. & Gill. 182. It must be shown that an actual state of service was then existing, and that the solicitation of the defendant was the cause of such leaving of the master's service. Ib.

Stewards, factors, bailiffs, &c.

4. Within a fourth class of servants, though acting in a superior capacity, may be included a steward, a factor, *and a bailiff; each of whom the law sometimes considers as a servant, pro tempore, with [ *512] regard to such of his acts as affect his master's or employer's property. A steward, factor or bailiff is however generally looked on rather as being the agent than the servant of his master or employer, for upon the relation of principal and agent are founded all the mutual rights, duties, and liabilities of these parties().

Other servants.

Besides these four sorts of servants, may be mentioned (5) clerks and shopmen, who, however confidentially they may be employed, are servants in the eye of the law; (6), merchant seamen, the law relating to whose contracts, hiring, service, and remuneration has been consolidated by the statute 17 & 18 Vict. c. 104, ss. 109-290, amended by 25 & 26 Vict. c. 63, ss. 5-24; also (7) persons working in mills and factories, or mines(u) and collieries, concerning whom the legislature has made various provisions, prohibiting the employment of females, and regulating that of boys, in the latter(x); and regulating that of women and children in the former(y).

II. We have next to consider the manner in which this relation of master and servant affects either party to it. And, first, by apprenticeship under II. The incidents indentures, a person gains a settlement in that parish wherein he of service. last served forty days(2). Formerly a person having served seven years as apprentice to any trade had an exclusive right to *exercise that trade in any part of England (a). This law as regards the exclu[*513] sive part of it, was by turns looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times: which occasioned many resolutions in the courts of law concerning it; however, these resolutions in general rather confined than extended the restriction. No trades were held to be within the statute, but such as were in being at the making of it(b): for trading in a country village, apprenticeships were said to be not requisite(c); and following the trade seven years, without any effectual prosecution (either as a master or a servant), was held sufficient without an actual apprenticeship(d).

years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, were compellable by two justices to go out to service in husbandry or certain specific trades, for the promotion of honest industry: and no master could put away his servant, or servant leave his master, after being so retained, either before or at the end of his term, without a quarter's warning, unless upon reasonable cause to be allowed by a justice of the peace, though they might part by consent, or make a special bargain. However repugnant this old statute may be to modern notions, and however obsolete its provisions may have become, portions of it seem never to have been repealed. Stamp, Index to Stats., 3rd ed. p. 399.

See, also, stat. 1 Jac. 1, c. 6.

(t) There are various statutes regulating the employment and duties of factors and brokers, among which may be mentioned 6 Ann. c. 16; 57 Geo. 3, c. lx; 4 Geo. 4, c. 83:

6 Geo. 4, c. 94; 3 & 4 Will. 4, c. 52, s. 144; 5
& 6 Vict. c. 39; 24 & 25 Vict. c. 96, ss. 78, 79.
(u) See stat. 23 & 24 Vict. c. 151; Wilson v.
Merry, L. R. 1 Sc. App. 326.
(x) 5 & 6 Vict. c. 99.

(y) 3 & 4 Will. 4, c. 103; 4 & 5 Will. 4, c. 1; 7 & 8 Vict. c. 15; 8 & 9 Vict. c. 29; 10 & 11 Vict. cc. 29, 70; 13 & 14 Vict. c. 54; 16 & 17 Vict. c. 104; 19 & 20 Vict. c. 38; 23 & 24 Vict. c. 78; 24 & 25 Vict. c. 117; 26 & 27 Vict. c. 38; 27 & 28 Vict. cc. 48, 98; 30 & 31 Vict. c. 103. The employment of women and children in workshops is now regulated by 30 & 31 Vict. c. 146.

(2) Ante, p. 438.

(a) Stat. 5 Eliz. c. 4, s. 24.

(b) R. v. Slaughter, Ld. Raym. 514; Pride v. Stubbs, 2 Camp. 397.

(c) Anon, 1 Ventr. 51; R. v. French, 2 Keb. 583.

(d) Wallen v. Holton, 1 W. Bl. 233; Smith v. Armourers' Co., Peake, N. P. C. 148.

At last the restrictions thus imposed on trade were repealed by 54 Geo. 3, c. 96; and afterwards by sect. 14 of the Municipal Corporation Reform Act (5 & 6 Wm. 4, c. 76), exclusive rights of trading in boroughs, &c. were also abolished. But these acts do not extend to the city of London, where several customs and bye-laws, excluding other than freemen from trading within the city, still exist.

A master may by law correct his apprentice for negligence or other misbehaviour(e), provided it be done with moderation(f): though if a master or master's wife beats any other servant of full age, it is a good cause of departure(g).*

A master is obliged to find medical attendance for his apprentice(h), though not for his menial servant(i);(131) yet *if the servant fall ill it is [ *514] neither a cause for turning him away, nor for abating his wages(k); and if he is attended by a surgeon with the authority, express or implied, of his master, the master may be liable to pay for this attendance(l), and cannot call on the servant to repay him(m). And it has been enacted that, if any master who is legally liable to provide food, clothing, or lodging for an apprentice or servant, shall wilfully refuse or neglect to do so, or shall maliciously do anything to endanger the life, or permanently injure the health of such apprentice or servant, he will be guilty of a misdemeanour punishable by imprisonment or penal servitude(n).

It is now settled that, in general, a servant takes his employment with its ordinary risks(0), and cannot claim compensation for any accident that befalls him whilst engaged in it: unless such accident is caused by the master's negli

(e) Gylbert v. Fletcher, Cro. Car. 179; and per Holroyd, J., Winstone v. Lynn, 1 B. & C. 460, 469; 1 Hawk. P. C. 483; Lamb. Eiren. 120.

(f) R. v. Keller, 2 Show. 289.

(g) F. N. B. 168; Bro. Abr. tit. Labourers, 51.

(h) R. v. Smith, 8 C. & P. 153.

(i) Wennall v. Adney, 3 B. & P. 247; Cooper

v. Phillips, 4 C. & P. 581; Newby v. Wiltshire, 2 Esp. 739.

(k) Dalt. Just. c. 58; Sellen v. Norman, 4 C. & P. 80. See Cuckson v. Stones, 1 E. & E. 248. (1) Cooper v. Phillips, 4 C. & P. 581. (m) Sellen v. Norman, 4 C. & P. 80. (n) 24 & 25 Vict. c. 100, s. 26. (0) Priestly v. Fowler, 3 M. & W. 1.

(131) In case of the sickness of an apprentice, his master is bound to provide proper medicine and attendance, at his own expense. Easley v. Craddock, 4 Rand. 423.

But it has been held that the master of an apprentice is not liable, without special contract, for medicine administered to, and attendance on, his apprentice, where the master did not send for the physician, and where the services were not rendered under his roof. Percival v. Nevill, 1 Nott & McCord, 452. So it has been held that no action lies by a phy. sician against a master for medicine and attendance on a slave of his, without his knowledge or request, in a case not requiring instant and immediate assistance. Dunbar v. Williams, 10 Johns. 249. Where the indentures provide that the master shall furnish medical attendance, as they usually do, very few questions will be likely to arise.

In contracts for performing personal service, for a specified time, it will be a sufficient excuse for a non-performance that the party engaging to do the work was prevented by sickness from doing so, and he may recover upon a quantum meruit. Wolfe v. Howes, 20 N. Y. (6 Smith) 197; Coe v. Smith, 4 Ind. 79; Allen v. McKibbin, 5 Mich. 449; Patrick v. Putnam, 27 Vt. 759; Thomas v. Woodruff, 2 Speers (So. Car.), 148; Seaver v. Morse, 20 Me. 619. But the compensation of an agent or servant, employed under a special contract, where the complete performance is prevented by his sickness and death, is not confined to a quantum meruit, but is to to be measured by the contract. Clark v. Gilbert, 26 N. Y. (12 Smith) 279.

* See ante, note 130.