mind that the old Acts did not apply to bonâ fide disputes. They were penal Acts, and when the decision was against the servant he was criminally convicted. But the new Act appears to apply to cases where the party acts without legal right, but in perfect good faith. The new jurisdiction seems to extend to disputes where employer and employed have acted bona fide and in the assertion of supposed rights, as well as to cases of wilful breach. Servants are now placed in the same position as masters were formerly. They might under the old Acts get a justice's order for wages, though the master may have refused payment in the honest belief that he had a right to do so, while the master could get no relief from the magistrates unless the absence was wilful, and not under an honest belief of a right. This is now remedied. But the justices ought not to impose a fine when the defendant has acted bona fide.*

If either party be guilty of such misconduct towards the other as to amount to a breach of the contract of hiring and service, the other is at liberty to rescind or put an end to it. This doctrine is clearly stated by Mr. Justice Blackburn in the case of Unwin v. Clarke (4 Cox's M. C. p. 132), and is as follows:-"All the cases upon the subject show that where there is a breach of contract, accompanied by the intention of not proceeding under it, one of the parties may elect whether to treat it as a breach or repudiate the contract ; but this is at the option of the party who is not the

* See Davis's "Master and Servant Act," p. 49.

'wrong-doer." But it seems he must put an end to it within a reasonable time after the misconduct, and not waive his right to do so by any delay. As to what will amount to sufficient misconduct to justify such a course, no general and certain rule can be laid down. All servants (of whom we assume colliers to be one class), impliedly, if not expressly, contract to obey all the lawful and reasonable orders of their master, within the scope of the services agreed for. Habitual neglect or express refusal to obey such orders, or unlawful absence from work, whenever the rules as to attendance are clear and never waived without express leave, would, no doubt, justify a master in discharging a collier without the stipulated notice, although slight irregularities might not warrant such dismissal. Wilful acts involving danger to his fellow-workmen, or to the colliery, and forbidden by the established rules, would also, it is submitted, justify the master in rescinding the contract with a collier guilty of them. On the other hand, it would probably be held that wilful neglect on the part of the employer to provide for the safety of his colliers would justify the latter in rescinding the contract. For example, if the ventilation of the pit were so neglected that the air became unwholesome and dangerous to health, or if the machinery at the pit's mouth were allowed to fall into such disrepair that the apprehension of danger to life were well founded, it is submitted that the collier might legally refuse to work.

Neglect to pay.-So, if at the regular pay-day the master neglects or refuses upon application to pay the collier his wages actually earned and confessedly due,

the latter would probably be justified in rescinding the contract and ceasing to work. He gives his labour in consideration of cash payments at certain known intervals. The master has no right to turn the collier into a creditor, and at the same time hold him to all the consequences and liabilities of his contract. Nor can

he expect that the collier, who lives upon his earnings, should obtain credit with his tradesmen in order to maintain himself whilst his earned wages remain unpaid. But if the collier has previously waived irregularities in payment, or if he works at all after nonpayment on a particular pay-day, he cannot rescind the contract until another pay-day, and another act of neglect or refusal to pay him has taken place.

The custom which enables a master to discharge a domestic servant at any time on payment of a month's wages in lieu of a month's notice, does not extend beyond that class of servants.

Wrongful Dismissal.—A collier, or other servant of the same class, who is wrongly dismissed, may proceed under the Master and Servants Act, or sue in the county court. Assuming that his dismissal is unjust, he has the choice of two courses. He may

treat the contract of hiring and service as still alive and continuing, and seek compensation for the breach of it, though no wages were due to him at time of the wrongful discharge; and if wages were then due, he may also recover them under the 20 Geo. II. cap. 19, or by action. Secondly, he may rescind the contract. The master having by the discharge refused to perform his part of the contract, the servant has a right to annul or rescind it, and to sue upon what is called

a quantum meruit for the actual value of the services rendered down to the time of the discharge. In that case the amount recovered would generally be the *proper proportion of wages earned.

Effect of Misconduct on the Claim of Wages.-If the discharge of such servant be in consequence of his own misconduct and breach of duty under the contract, he will not be entitled to any wages not actually due and payable before the dismissal. His loyal and faithful service is a condition precedent to his title to them, and that condition has not been fulfilled. And when notice is given, the collier is bound to remain in his employer's service until the expiration of such notice. A desertion from the service prior to such expiration will be followed by a forfeiture of all wages not actually due, but current at the time of desertion. It has been contended that this rule only applies to cases of service where the wages are not regulated by the amount of work done (as in the case of colliers), but are computed according to time, as when the hiring is for a year or a month, at yearly or monthly wages. But the judge of the county court of Glamorganshire has justly remarked that there is nothing inconsistent with a contract for piece-work that the workman should engage to serve his employer for a given time, or for an indefinite time, subject to a month's notice. And if it were made an essential part of the contract that the collier should serve for the stipulated time, then the continuance in the service for that time appears to be a condition precedent to the right to recover the wages, just as much where the wages are computed by the ton or piece as

where they are computed by the year or month. And this view seems to be sanctioned by Pilkington v. Scott, 15 Meeson & Welsby, 657. And further, as the continuing to serve for the appointed time may be contracted for in express terms, and so be made a condition precedent to the recovery of wages, so it may be implied from the fact of the contract being only determinable by a month's notice that the collier must continue to offer himself for work, and that the master should continue to find him work to the best of his ability, and according to custom, until the expiration of a notice. A collier cannot refuse to perform his side of the agreement, and at the same time seek compensation for non-performance on the other. If he abandons the special contract he retains no right to sue upon it, nor can he take advantage of his own wrong, and treating the contract as rescinded, sue upon the quantum meruit.* In fact, the payment of wages by the ton is merely a mode of reckoning, the amount not becoming due and payable until the arrival of the customary "pay."

Redress for Injuries under the Master and Servants Act.-Under the former Acts the collier had an advantage over his employer; that is, he could obtain orders for payment of whatever might be due to him, though the master might have refused payment honestly believing he had a right to do so; whereas the master had no remedy against the collier unless the act complained of was a wilful and guilty act. If the collier acted bona fide under a fair and reasonable

* Judgment of Judge Falconer.