The master has the right to say not only what his servant shall do, but also the way in which the work shall be done. There are different kinds of servants. There are, for instance, domestic or menial servants; servants who are not menial, such as clerks, typists, shopmen and girls, actresses, and others; those engaged in husbandry and manufactures, such as labourers, workmen, and artisans; and, lastly, apprentices.
The governess who lives in the house, and is often treated worse than a servant, is not a menial servant; neither is a tutor or the housekeeper of a large hotel. Head-gardeners and huntsmen have been held to be menial servants. A contractor is not a servant, because his employer allows him to use his own judgment and does not direct him as to details; the contractor, therefore, and not the employer, is responsible for the acts of those acting under his orders. A corporation is not the master of the servants of a contractor. The servant of a foreman is the servant of the foreman's employer. Although a principal has the right to direct what the agent has to do, a person selling goods or obtaining orders on commission will generally be regarded as an agent and not as a clerk or servant.
A servant cannot be the partner of his master. A manager of a firm who received forty per cent. on the profits, and a cashier who received, in addition to a fixed salary, a percentage on the profits, but had no control over the management of the business, were held to be servants, not partners.
The occupation of a house as apparent tenant, even for the purpose of carrying on business, does not necessarily alter the position of master and servant, or take away from the former his power of dismissing the latter. A servant who occupied a cottage rent free belonging to his master, and from whose wages an annual deduction was made in consequence, a shepherd receiving a weekly remuneration and a free cottage, and a labourer who received 2S. a week less wages on account of living rent free, have all been held not to be tenants.
The governor of a gaol residing outside the prison, the canon of a cathedral occupying a house which he himself repaired and with which the chapter could not interfere, and the occupiers of Hampton Court, provided they are rateable, have all been held to be tenants.
Every person of full age may enter into a contract either as master or servant. To this rule appears to be only one exception - viz., the relation between a barrister and his client. There is no record of a barrister suing his client for fees unpaid, or a litigant his counsel for breach of a contract to appear for him.
There is nothing to prevent a servant from having two or more masters at the same time. A servant employed by a firm is equally the servant of each partner in the firm. A barrister's clerk has frequently half a dozen masters to serve, and is the servant of them all; and a commercial traveller who obtains orders for different firms is the servant of each of them. Where a servant of a firm receives directly contrary orders from two partners, he may obey either. A partner has implied authority to engage a servant on behalf of the firm.
These include infants, married women, and lunatics. An infant - i.e., a person under twenty-one - may be either a master or a servant, but the contract of hiring and service is voidable by him unless it can be shown to be for his benefit.
Before the Married Women's Property Act a married woman was incapable of entering into a contract of hiring or service either as mistress or servant, but now she may enter into such a contract independently of her husband. How far the act of a wife who has engaged servants is binding upon the husband depends upon their relations, and whether she could be said to be acting as his agent and with his assent in hiring domestics for the household. A female servant who marries must serve out her time, as her contract of service is not dissolved by her marriage; as a matter of practice, servants usually give notice to their employers of their intending marriage, and arrange to leave accordingly.
A contract of a lunatic is binding, unless the other party was aware of the unsoundness of mind of the lunatic at the time when the contract was made.
All the higher class servants hired by a corporation must be appointed under seal, but the hiring of an inferior servant may be by parol. The appointment of a medical officer by guardians must be under seal; and so must the appointment of clerk to the master of a workhouse and a rate collector.
With regard to agricultural labourers, a general hiring is a hiring for a year, and a servant dismissed with good cause before the end of the year cannot recover any wages. A hiring for clothes, meat, and drink, with no mention of time, is a yearly hiring. If he served for a year it is strong presumptive evidence that he served under a yearly hiring. In the case of an agricultural labourer hired at so much a week with board and lodging it was held to be a weekly hiring.