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Menial

servant, master, service, liable, wages, agreement, months, servants and notice

MENIAL SERVANT.—The derivation of the word menial has been frequently attempted in the course of judicial proceeding,s, but with never a very satisfactory result. A general definition of the terin "menial servant" is perhaps more easily arrived at, but an exact definition would seem to be almost impossible. On the one hand the courts have held that a huntsman, a head-gardener, and a general handy-man partly paid by perquisites, are all menial servants ; but, on the other hand, neither a governess enaaged at a yearly salary, nor the housekeeper of a large hotel, has been consitrered to be a servant of that class. It is fairly certain, however, that the term domestic servant, as generally applied and accepted, is practically interchangeable with the term menial servant. And that this should be so would naturally follow from the definition of Chief-Justice Erle, in Nicoll v. Greaves, that a menial servant is a subordinate domestic servant (not always, though generally, an indoor servant) whose service brings hhn into close proximity to his master, and thus renders it to the interest of both ma.ster and servant that the contmct of service should be determinable before the end of the year of service. Whether a person is a menial servant may be a question of fact for a jury to determine. Apart from express agreement between the parties to the contrary, the contract between a master and a menial servant is a contract to serve for a year, the service to be determined by a mouth's warning or by the payment of a month's wage; subject to the implied condition, that the servant will continue to obey all lawful orders of the master. In view of the fact that the above-mentioned head-gardener and handy-man were held to be menial servants, it will be useful to note the particular terms of their respective services. This will show how near a menial servant, strictly so-called, may approach in his actual position that of a servant who is not menial. The head-gardener was engaged on an agreement that he should have yearly wages, and a house to live in rent free. Several inferior gardeners were subject to his directions, and the house he lived in was not under the roof or a part of the master's dwelling-house. And yet (Nowlan v. Ablett) he was as much liable to be discharged on a month's notice as a kitchen-maid would be. The handy-man (Johnson v. Bknkinsopp) was even engaged with a written agreement that he was " to have es. a week, three bowls of wheat, to set potatoes for his family's use, to have a cow kept, house and firing, to keep the gardens and pleasure grounds in clean and good order, to assist in the stables, and when required, at hay and corn harvest, and to make himself generally useful." That

agreement was held to contain nothing which showed an intention of the parties to exclude the general rule. In the case of Moult v. Halliday a mistress endeavoured, but failed, to prove a custom that gave a right to either the master or servant to determine the service at the end of the first calendar month, by notice given at or before the expiration of the first fort night. On this point, however, reference may be usefully made to the case of George v. Davies (Law Times, 29 April 1911). But a servant can be dis missed summarily when guilty of serious misconduct. When givino. a month's wages in lieu of the month's notice it is not necessary to give giving wages (Gordon v. Potter). An agreement for the service of a menial servant does not require a stamp. If it is desired to make the servant liable for breakages or articles lost there should be an express stipulation to that effect at the time of the engagement ; otherwise, according to Le Lob- v. Bristow, a negligent or careless servant will not be liable to his master therefor. And a master is liable for wages during a temporary illness of the servant (Cuckson v. Stones), unless the contract of service has been put an end to, or modified in that respect, by mutual consent. But he is not liable for medical attendance upon his servant unless he has rendered himself so liable by sending for the doctor upon his own responsibility or by personally agreeing with the doctor to pay him. This is the law according to Dennall v. Adney, so that a servant must have recourse to the parish doctor if he cannot afford to pay for other and his master declines to come to his assistance (Simmons V. Wilmot). A master can maintain an action for damages against any one who has seduced his servant, provided the seduction and birth have both occurred during the term of the service. Persons who are strictly menial or domestic servants do not come within the scope of the EMPLOYERS' LIABILITY, but do come within the protection of the WORKMEN'S COMPENSATION Act. Consequently a master has the protection of the common law doctrine of COMMON EMPLOYMENT (q.v.) in the event of such a servant sustaining an injury during the course of his employment, and claiming under the Employers' Liability Act. When clothes or livery are supplied to a servant as part of his wages they become his property, as a rule, as soon as they arc worn out and the master has substituted new ; but if the servant is engaged upon such terms as 1'50 a year and a suit of clothes, for example, the clothes become his property only at the expiration of the year (Crocker v.:Ifolineaux). See MASTER AND SERVANT ; CHARACTER,