THE LEGAL STATUS OF SERVANT-GIRLS. 813 



the rule operates as a punishment to persons wantonly guilty of the 

 breach, and tends to preserve the contract inviolable. In the other 

 case, its exception is calculated to protect the right of the unfortunate 

 and honest man who is providentially and without fault on his part 

 prevented from a full performance."* In general, the contract is 

 subject to the implied condition of health and strength, and sickness 

 will excuse a servant from liability, and justify her in rescinding the 



agreement.f 



Such are some of the rules regarding the rights to wages of ser- 

 vants who are hired for a specific time. With those who are not 

 hired for any particular time, as is the case with the majority of 

 domestic servants, the case is different. The servant is considered as 

 hired with reference to the general understanding that she shall be 

 entitled to her wages for the time she serves, and either party, in the 

 absence of any agreement to the contrary, may determine the service 

 at any time. J The question most likely to arise on such termination 

 is whether any notice must be given by the party terminating the 

 service. In England, a month's notice is customary, and, if it is the 

 hirer who ends the hiring, he can give a month's wages instead of the 

 notice. If the dismissal is for misconduct, however, the servant is not 

 entitled to the month's wages.* The English rule has not been incor- 

 porated in the law of this country. As was stated by Chancellor 

 Kent, there is no distinction between menial and other servants. 

 Whether notice is to be given depends upon the contract between the 

 parties, or, if that is silent on the subject, it depends upon the custom 

 of the particular place. Where there is an express contract upon the 

 subject, it is binding, and must be observed, except in case of the dis- 

 obedience of the servant, or under some other such circumstances. If 

 the parties have not seen fit to take the subject of notice into consid- 

 eration, no notice is required unless a well-established custom to give 

 notice exists. || 



Before closing the discussion of the right to wages, mention should 

 be made of an exception to the rule that the servant who performs 

 faithfully her contract without breach is entitled to wages. The 

 exception is that of persons whom the law deems unable to contract. 

 Take the case of a married woman, for example. Where the common 

 law still controls the relation of husband and wife, all wages the wife 

 eai*ns belong absolutely to him, and any promise made to pay her is 

 considered as a promise made to him. And the common-law rule 

 prevails except where it has been modified or changed by statute. In 

 New York State, before 18G0, a married woman who contracted for 

 her personal services with the knowledge and consent of her husband, 

 and was promised by the party hiring what her services were reason- 

 ably worth, acquired no title to her earnings in her own right. A It 



* 20 N. Y., 197. f 2 Story on Contr., 1,303. % Shars. Black., 426, r>. 



* Cooky's Black., p. 129, n. 1 Shars. Black., 420, n. A 42 Barb., G6. 



