(m) Atkin v. Acton, 4 C. & P. 206; Ridgway v. Hungerford Market Co. 3 A. & E. 171; Turner v. Robinsons, 6 Car. & P. 15; s. c. 2 Nev. & M. 829. See also Spotswood v. Barrow, 5 Exch. 110; and Lush v. Russell, 5 id. 203.

(n) Thomas v. Williams, 1 A. & E. 689; Hill p. Green, 4 Pick. 114. Whether the contract has been rescinded is a question for the jury. Lamburn v. Cruden, 2 Man. & G. 253. In this case a servant was engaged at a yearly salary, payable quarterly. A month after the termination of one of the years of the service the servant tendered his resignation. After another month the resignation was accepted, nothing being said about remuneration for the time elapsed since the termination of the last years services. It was held, that the law implied no engagement to pay for the services performed since the last quarter; but that, under the circumstances of this case, it ought to have been left to the jury to say whether the parties had come to an agreement that those services should be pail for.

(o) Patterson v. Gage, 23 Vt. 558; Pritchard v. Martin, 27 Mo. 305. And where the contract was dissolved by authority of the State (the employee being sent away under a statute as a witness in a criminal case), it was held, that the hirer was bound to pay, and only to pay, pro rata wages for the time in which the servant was actually in his employ. Melville v. De Wolf, 30 E. L. & E. 323; 8. c. 4 E. & B. 844.

(p) Ridgway v. Hungerford Market Co. 3 A. & E. 171; Cussons v. Skinner, 11 M. & W. 161; Baillie v. Kell, 4 Bing. N. C. 638. See also Mercer v. Whall, 5 Q. B. 457, Lord Denman.

(q) Spotswood v. Barrow, 5 Exch. 110; Willets v. Green, 3 Car. & E. 59.

(r) This point was decided in the case of Mockman v. Shepherdson, 3 Per. & D. 182. But it is to be observed that in that case there was an express agreement between the parties, that if the servant should get drunk any time during the service, he should forfeit all his wages up to that time. The case of Seaver v. Morse, 20 Vt. 620, is an authority for holding, that a forfeiture of wages, incurred by a failure to perform an entire contract, is waived by a subsequent promise of the employer to pay such wages, although the promise is made without any new consideration. See also, ante, p. • 36, note (g).

recover for the whole in an action, not for work and labor, but for preventing him from doing his work. (s)

If the servant hired for a certain time, reserves the right of leaving earlier, or at his own pleasure, for some specified cause, he cannot leave except for that cause: thus, if he reserves the right to leave "if dissatisfied," he cannot leave to attend to other business, or for any other reason whatsoever, unless he is "dissatisfied," and allege this as the cause of his leaving, (t)

It would seem from the decisions that a master is not bound to provide medical attendance or medicines for his farm servant, or his house servant, in case of illness; even if this be caused by an accident occurring while he was in the discharge of his duty. (u) But it is also held, that if he does send for a physician he is not only liable himself, but cannot deduct the charge from the wages of the servant without an express agreement to that effect. (v) The master is bound to take

(s) The earlier cases seem to have allowed a recovery in such case, on a common count for work and labor done. Gan-dall v. Pontigny, 4 Camp. 375; Eardly v. Price, 5 B. & P. 333 ; Smith v. Kingsford, 3 Scott, 279; Collins v. Price, 2 Mo. & P. 233. But the more recent authorities have established the better principle, that the balance due for work actually performed, at the time of such wrongful dismissal, may be recovered on the common counts, while there must be a special count for the amount of the month's wages which has not been earned; or, to speak more correctly, for the recovery of damages for the wrongful dismissal, a month's wages being the measure of damages for such breach of contract. See Archard v. Hornor, 3 C & P. 349; Few-ings v. Tisdal, 1 Exch. 295; Broxham v. Wagstaffe, 5 Jur. 845; Smith v. Hayward, 7 A. & E. 544; Hull v. Heightman, 2 East, 145. See Lilley v. Elwin, 11Q.B. 755. In such case the wages due at the time of dismissal cannot be recovered under such special count; there must be a count for work and labor done; and these may be joined in the same declaration. Hartley v. Harmon, 11 A. & E. 798. But see Goodman v. Pocock, 15 Q. B. 576. See also, ante, p. *34, note (d).

(t) Monell v. Burns, 4 Denio, 121; Lantry v. Parks, 8 Cowen, 63.

(u) The contrary opinion was once declared by Lord Kenyon, in Scarman v. Castell, 1 Esp. 270, but this doctrine has long since been overruled. See Sellen v. Norman, 4 C. & P. 80; Cooper v. Phillips, id. 581. In Dunbar v. Williams, 10

Johns. 249, it is said, that no action lies by a physician for medicine administered to, and attendance on, a slave, without the knowledge or request of the master, in a case not requiring instant and immediate assistance. But it seems, that if medical or other assistance be rendered to a slave, in case of such pressing necessity as not to admit a previous application to the master, the person rendering such assistance would be entitled to recover a compensation from the master on the implied assumpsit, arising from the legal obligation of the master to make the requisite provision for his slave. And in England a master is liable to provide medical attendance for his apprentice. Regina v. Smith, 8 C. & P. 153. {v) Sellen v. Norman, 4 C. & P. 80; Emmons v. Lord, 18 Me. 351. It would seem that he cannot deduct the servant's wages during the time he was sick and unable to work. Story on Cont. § 962, j, k, and cases cited. In Nichols v. Coola-nan, 10 Met. 449, a contract was made by N. & C. that N. should have eleven dollars per month and board, so long as he should work for C, C. informing N. that he (C.) might not have two days' work for him. N. worked for C. several months, and brought an action for his wages, and annexed to his writ a bill of particulars, in which he charged the price agreed on per month, and gave C. credit for a certain sum on account of three weeks' sickness of N., during which time he was unable to work. C. filed in set-off an account against N. for board during his sickness; it was held, that the contract was a hiring by the proper care of his servant, and not expose him to danger, (w) 1 but it has been held that he is not responsible for an accident happening in the course of his service, unless the master knew that it exposed the servant to peculiar danger, and the servant did not. (x)