124,"the court of Kings Bench held such a plea, an issuable plea and could be pleaded after default upon leave granted to plead on usual terms."

See also Beatty Adm'r v. Van Ness, 2 Cranch

Circt. 67.

I am occupyng too much space, but the confident assertions and criticising character of "Doubter's" card seems to call for this reply, as certainly no court in the exercise of a fair discretion could have done otherwise, in passing on the motion, than was done by Judge Baxter in this instance.

wages then due. The damages in such a case are liquidated.

In Fewings v. Tisdal, Exch. 295, where the hiring was for a month's wages, it was held that a special contract of hiring was constituted, and that the plaintiff, having been paid up to the moment of dismissal, could not recove any more on a common indebitatus count for work and labor. And where a seaman was engaged for a voyage and was wrongfully dismissed by his employer, it was held that he had a right of action against his employer in the nature of a tort for such wrongful dismissal. Hulle v. Heightman, 2 East, 145

WRONGFUL DISMISSAL OF SERVANTS—THEIR DUTY -ACTION-DEFENCE-EVIDENCE.

There is much confusion in both the English and American cases, in regard to the nature of the action that a servant may bring against his master after he has been wrongfully dismissed. In several cases courts have recognized the fiction of a " constructive" service, while in a greater number such fiction is repudiated; and again other courts have proceeded with no very clearly defined notion of the kind of action they were trying. In the early case of Gandell v. Pontigny, 4 Campb. 735; 8. c. 1 Stark. N. P. 157, (a nisi prius case), the doctrine of constructive service was recognized and acted upon. It was there held that a servant wrongfully discharged may wait until the termination of the period for which he was hired, and then sue in indebitatus assumpsit for the entire wages he would have earned had he not Been dismissed. To the same effect are Collins. Price, 5 Bing. 132 (1828) and Pagani

บ.

Godalfi, 2Car. & P. 370 (1826). Gandell v. Pontigny, however, was overruled in Archard v. Hornor, 8 Car. &. P. 349, and this last case was approved in Smith v. Hayward, 7 Ad. & E. 544 (1837). Hartley v. Harman, 11 Ad. & E. 798 was a case where a contract, at the rate of so much per annum, had been entered into, the engagement, by its terms, to be terminated by a month's notice on either side. The servant, having been wrongfully dismissed, brought suit against the master, and in special ial count it was alleged that a month's notice was not given. The action was not for a wrongful dismissal, there was no question of service rendered for any broken period; the contract was completely executed so far as it regarded the service rendered. It was held that the servant could not recover on the special count for his actual service, but that he could have a common count, as on a fully executed contract, and that he might set himself right in a second action. It will be seen that this action was brought only for a month's

Several cases have arisen in the English courts where an action of indebitatus assumpsit was allowed. In some of these cases it was expressly decided that such an action lay, and in others the question was not raised. In 1850, in Goodman v. Pocock, 69 Eng. Com. L. 576, it was held that under an indebitutus count, the servant, having been wrongfully dismissed before the end of the period for which he was employed, could not recover his wages up to such termination, or for a constructive service, but only in respect to his service up to the time of his dismissal. In Smith v. Kingsford, 3 Scott, 279 (1836), it was held that indebitatus assumpsit would lie to recover wages earned or due before the dismissal of the servant. Fawcett v. Cash, 5 Barn. & Adol. 904 (1834), was assumpsit, where the servant recovered for his wages as agreed upon, but which accrued after his discharge. No question was raised upon the pleadings. Callo v. Brouncker, 4 Car. & P. 518 (1830), was similar; likewise Robinson v. Hindman, 3 Esp. 235 (1801), and William v. Byrne, 7 Ad. & E. 177 (1837). In Hartley v. Harman, 11 Ad. & E. 798 (1840), it was held that assumpsit would not lie for damages for a wrongful discharge, but only for wages earned before dismissal. It was said that the plaintiff could have declared in a special count for the worth of the wages, and in a common count for the damages by an unlawful discharge. The declaration had a common count for damages, and that he could bring another action for the damages due down to the time of dismissal, See Frazer v. Bunn, 8 Car, & P. 704. In Hercum v. Sterrick, 10 Mes. & W. 553 (1842), it was held that the servant could recover for wages due before discharge under a common count. Exactly the contrary was held in Fewings v. Tisdal 1 Exch, 295 (1847), and in Keys v. Harwood, 2 C. B. 905; 15 L. J. (C. P.) 207.

The case of Goodman v. Pocock, 69 Eng. Com. L. 576, was an action of indebitatus as sumpsit, brought by a clerk wrongfully discharged in the middle of a quarter, for his services during the broken quarter. It appeared that he had formerly brought an action för

Wis. 355; Booge v. Pacfic R. Co., 33 Mo. 212; Davis v. Ayres, Ala. 292; Martin v. Everett, 11 Ala. 375; Bradshaw v. Branan, 5 Rich. 465; Jones v. Jones, 2 Swan, 605; Congregation v. Peres, 2 Coldw. 620; Colburn v. Woodworth, 31 Barb. 381; Cox v. Adams, 1 Nott & M. 284; Davis v. Crawford, 2 Const. (S. C.) 401; Mclure v. Pyatt, 4 McCord, 26; Rye v. Stubbs, 1 Hill (S. C.), 384; Hamlin v. Race, 78 Ill. 422; 8. c. 3 Cent. L. J. 558; Kirk v. Hartman, 63 Pa. St. 97.

Several courts of final resort have either directly or indirectly repudiated this doctrine of constructive services, Ricks v. Gates, 5 Ind. 115; Weed v. Burt, 78 N. Y. 191; s. c. 7 Daly 267; Madden v. Porterfield, 8 Jones L. 166; Sherman v. Champlain Transp. Co., 31 Vt. 162; Willoughby v. Thomas, 24 Gratt. 521; Heim v. Wolf, 1 E. D. Smith, 70; Moody v. Leverick, 14 Abb. Pr (N. s.) 145; Rogers v. Parkham, 8 Ga. 190; Britt v. Hays, 21 Ga. 157; McDaniel v. Parks, 19 Ark. 671; Bromley v. School District, 47 Vt. 381; Cook v. Sherwood, 11 W. R. 595.

In a case in the Supreme Court of the United States, Judge Washington in substance said, that where there is a special agreement open and subsisting at the time the cause of action arises, a general indebitatus assumpsit cannot be maintained; but if the agreement has been wholly performed, or if the further execution of it has been prevented by the act of the defendant, or by consent of the parties; or if the contract has been performed in respect to any one distinct subject in it, the plaintiff may recover upon a general indebitatus assumpsit, Perkins v. Hart, 11 Wheat. 237. It is very clear that the learned judge understood that if a servant was wrongfully dismissed no action of indebitatus assumpsit would lie, except for those services performed, Alego v. Alego, 10 Serg. & R. 235; Donaldson v. Fuller, 3 Serg. & R 505. And where an instalment of the wages falls due, the servant may bring an action at once for such instalment; and as each successive instalments fall due, a like action may be brought for each one, Hartley v. Harman, 11 Ad. & E. 798; Davis v. Preston 6 Ala. 83; Colburn v. Woodworth, 31 Barb. 381; Heim v. Wolf, 1 E. D. Smith, 70; Moody v. Leverick, Abb. Pr. (N. 8.) 145; Weed v. Burt, 7 Daly 267; 8. c. 78 N. Y. 191; dirtum in Thompson v. Wood, 1 Hilt. 93; Armfield v. Nash, 31 Miss. 361; Huntington v. Ogdensburgh, etc., R. Co., 7 Ám. Law Reg. 143; 8. c. 33 How. Pr. 416; Hamlin v. Race, 78 Ill. 422; 8. c. 3 Cent. L. J. 558. This was the judgment of the court in Cook v. Whorwood, 2 Saund 337, where it was held that several actions on an award to pay several sums at different times might be brought by the plaintiff, as each several sum fell due. If the action is brought before

the time the instalment was to fall due, or before the time for the termination of the contract, it cannot be maintained, Bradshaw v. Branan, 5 Rich. 465; Hassell v. Nutt, 14 Texas, 260. But it seems that these cases are nat in harmony with those cases which hold that assumpsit will not lie for wages that would have been earned after the discharge, had not the servant been dissmissed; nor are they in harmony with those cases, wherein suit has been brought after the time for the termination of the contract for services, which hold that no evidence can be given of the amount the master agreed to pay the servant. For how can it be said that the servant is entitled to recover each instalment as it falls due, when the contract has been broken and no longer exists, so that a suit can be maintained thereon, based upon the promise, implied or otherwise, contained in such broken contract?

Those cases which hold that the jury may take into consideration the probability of the servant's obtaining other like employment, in estimating his damages, are more in harmony with those cases which deny the doctrine of constructive service.

In Goodman v. Pocock, it is said that the servant cannot bring an action of indebitatus assumpsit and have also a special count on the broken contract. If he does he can only take the verdict on one count. If he take it on the special count, judgment rendered thereon will be a bar to another action, even for those services rendered. But this case is at variance with a large class of cases which hold that the declaration may contain two counts, one in assumpist, and the other a special count for damages, Madden v. Porterfield, 8 Jones L. 166; Ricks v. Yates, 5 Jnd. 115; Colburn v. Woodworth, 31 Barb. 381;. Hartley v. Harman, 11 Ad. & E. 798; French v. Brookes, 6 Bing. 354,

Whether the contract is one in which payment is to be made in instalments, is to be ascertained as in any other contract. If the servant's wages are payable monthly, a separate action may be brought as each month's wages fall due, and a prior judgment will not bar a subsequent action, Huntington v. Ogdensburgh, etc., R. Co., 7 Am. L. Reg. 143; 8. c. 33 How. Pr. 416; Armfield v. Nash, 31 Miss. 361; Heim v. Wolf, 1 E. D. Smith, 70. And the plaintiff recovers only the amount that was due at the time the suit was brought, although at the time of the trial all the instalments were due, Hamlin v. Race, 78 Ill. 422; 8. c. 3 Cent. L. J. 558; Toles v. Hazen, 57 How. Pr. 516. Contra, up to the time of the trial, Maguire v, Woodside, 2 Hilt. 59; Fowler v. Armour, 24 Ala. 194.

If the master refuses to have anything further to do with the servant, and turn him

away, such action would amount to an actual breach of the contract, and all the cases hold that a right of action in favor of the servant accrues at once. But if the master merely refuses to furnish the servant employment, such refusal does not amount to a breach of the contract, Cook v. Sherwood, 11 W. R. 595. This last case was decided after Emmens v. Elderton, 4 H. L. C. 645, where Mr. Justice Crompton said: "If there is a contract to keep in employment, it seems necessarily to follow that a dismissal from the employment is a breach of it;" but this does not go the length of saying that a mere refusal to, furnish work amounts to a dismissal. And Mr. Justice Talford in the same case, 4 H. L. C. 650, commenting upon Aspdin v. Austin, 5 Q. B. 671, and Dunn v. Sayles, 5 Q. B. 685, says that they establish the rule that if the servant is" able and willing to render service he is entitled to demand his wages; but that he cannot insist on being able to earn them." Such is the correct view of this question, Rhodes v. Forwcod, 15 Moak, 124; L. R. 1 H. L. 256. Why should the servant be allowed to insist upon actual employment if the master chooses to pay him the stipulated amount when he performs no service? The servant is not injured by the master's action, Emmens v. Elderton, 4 H. L. 644. Were it the case of an apprentice at some trade, who expected to receive actual benefit by such employment in the way of skill to be acquired thereby, and such expectation was a part of the consideration, or so understood by the master and servant, then a very different case would be presented, and no doubt a refusal to furnish employment would be a breach of the contract. Where the master put the servant in custody, upon a charge of larceny, and afterwards procured his release, it was held not a breach of the contract; Smith v. Kingsford, 3 Scott, 279, or, merely shutting up the warehouse in which the servant worked, is not, Cook v. Sherwood, 11 W. R. 595.

So, where the plaintiff was hired to teach school for a district for a term of six months; and after he had taught three months most of the patrons became dissatisfied, and only two or three pupils remained; the stove legs and and pipes were carried away from the schoolhouse, and the plaintiff had to close his school, but was requested by the prudential committee to hold himself in readiness to go on with the school the remainder of the term, which he did; and no effort was made to put the school-house in a condition for school to continue; the court treated the contract as unbroken, and an action of assumpsit was held to be maintainable. Bromley v. School District, 47 Vt. 381. This was practically holding that the district was not bound to furnish actual employment. No precise form of words is nec

essary, on the master's part, to reject the servant's services; a denial of the obligation of the contract after it is created is equivalent to a respect to allow him to enter upon or continue the service, Howard v. Daly, 61 N. Y. 368. An employment for no definite time is a hiring at the will of both parties, and the servant may be discharged without notice, Kirk v. Hartman. 63 Pa. St. 97.

:

He cannot recover wages upon a rescinded illegal contract, Peck v. Burr, 6 Seld. 294. If the master notifies the servant before the time for the commencement of the services as agreed upon, that he will not provide him with employment, and that he rescind the contract, this dispenses with an actual tender upon the part of the servant of his services; Howard v. Daly, 61 N. Y. 362; Walis v. War ren, 4 Exch. 361; Levy v. Hubert, 7 Taunt. 314 Carpenter v. Holcomb, 105 Mass. 284, but if he receives no notice he must make a tender of his services, or show a willingness to perform them; Howard v. Daly, 61 N. Y. 362; Moody v. Leverick, 14 Abb. Pr. (N. s.) 145. A tender and offer to perform is equivalent to a performance so far as the measure of damages is affected. Walworth v. Pool; 4 Eng. (Ark.) 394; Whittaker v. Sandifer, 1 Duv. 261. And if the servant engage in other employment after his discharge, or other breach of the contract, or do any other act incompatible with his return, he is not bound to return to his master, even though solicited by him. Saunders v. Anderson, 2 Hill (S. C.), 486; Howard v. Daly, 61 N. Y. 362. It would be otherwise were he free to return, for in such case there must be a readiness to perform; yet a refusal to return could not effect the recovery of the damages accrued in the past, but only those that might accrue in the future, Sherman v. Champlain Transp. Co, 31 Vt. 162. If an action for breach of the contract had been brought, and judgment rendered for the damages actually sustained, a request, after bringing the suit, by the master, that the servant return, and a refusal could have no effect upon either the master or servant, even though he were free to return, because such (as will be hereafter seen) judginent is a complete bar to any second action. It would be different were such action brought for the wages actually earned, or for the amount of an instalment.

In Planche v. Colburn, 8 Bing 14, the defendant engaged the plaintiff to write a treatise for periodical publication. The plaintiff commenced the treatise, but before he had completed it, the defendant abandoned such publication; it was held that the plaintif might sue for compensation without tendering or delivering the book. It does not appear from this case, as reported, whether the suit was for wages then due, or for damages on

account of the breach of the contract. The case is very unsatisfactorily reported. See Goodman v. Pocock, 69 Eng. Com. L. 581. And, under a contract "to devote my time and best energies from daylight in the morning until nine o'clock in the evening to A., for the term of one year," for a stipulated sum by the day, with a provision that the wages shall continue the same until the expiration of the term, in case of the previous death of A., the performance of reasonable service after the death of A. within the term, upon the request of his executor, is a condition precedent to the right to recover wages after such request, Burdett v. Yale, 6 Allen, 125.

As soon as the contract is broken, and the servant discharged, it is his duty to seek other like employment. Emmens v. Elderton, 4 H. L. 644; Beckham v. Drake, 2 H. L. 607; s. c. 4 C. B. 479, note; 6 C. B. 160 17 L. J. (N. s.) C. P. 307; Howard v. Daly, 61 N. Y. 370; Dillon v. Anderson, 43 N. Y. 231; Hamilton v. McPherson, 28 N. Y. 76; Chamberlin v. Morgan, 68 Pa. St. 168; King v. Steiren, 44 Pa. St. 99; Whitaker v. Sandifer, 1 Duv. 261; Ricks v. Yates, 5 Ind. 115; Sherman v. Transportation Co., 31 V. 162. Ín Sherman v. Comstock, 21 Wend. 462, it is said that the law abhors an idle man, and will not lend its hand to enable a servant to eat the bread of idleness; idleness itself is a breach of moral obligation. See Walworth v. Pool, 4 Eng. (Ark.) 394 where this case is quoted from and approved. In Beckman v. Drake, 2 H. L. 606, it is held he is bound to use "diligence;" and in Emmens v. Elderton, 4 H. L. 645, the words "due dili gence," are used, and the former case cited to sustain the point made. In Howard v. Daly, 61 N. Y. 370, it is said that the servant must "use reasonable care in entering into employment," which is equivalent to due diligence. Such, undoubtedly, is the law. The servant is not bound to use extraordinary diligence to procure another place, nor to procure one equally or more remunerative than the one from which he was wrongfully dismissed. If employment of less value is offered to him in the same vicinity, and one of greater value in a distant community, he may accept the former, although the acceptance of the latter would reduce the amount of the damages he would be entitled to recover; for he is not bound to seek other employment at a distance and among strangers, Hamilton v. McPherson, 28 N. Y. 72; Gillis v. Space, 63 Barb. 177.

In ascertaining what is due diligence, the kind of the employment, the time of the discharge and the custom of the trade or country must be considered: Thus, where the plaint iff was employed as an actress on the 20th of April, the services to commence about September 15th, and to terminate on July 1st, of

the next year; and in the latter part of September she was told that her services were not desired (she never having entered upon them), it was said that if other like-employment had been offered her in that city (New York), it would have been her duty to have accepted it; but having made some effort and having failed, under the known usage in that business of forming companies of actors at certain seasons of the year, and the slight success of making an engagement after September 15th, she was justified in waiting to the close of the theatrical season, Howard v. Daly, 61 N. Y. 371. So of an overseer turned off at a season of the year when he could not get other employment, Meade v. Rutledge, 11 Texas 44; Byrd v. Boyd, 4 McCord, 246; see Chamberlin v. Morgan, 68 Pa. St. 168; King v. Steiren 44 Pa. St. 99. It must be like employment, or of the same kind, Howard v. Daly, 61 N. Y. 370; Beckham v. Drake, 2 H. L. C. 606. It is said he is only required to seek "employment of the same general nature and description with that which the contract between the parties contemplated," Costigan v. Mohawk, etc., R. Co., 2 Denio, 609; Walworth v. Pool, 4 Eng. (Ark.) 394. Thus an actress need not seek service as a clerk, or a railroad superintendent as a farmer, or an overseer as a common day laborer, or a foreman in a type foundry as an ordimary hand in another foundry, Beckham v. Drake, 2 H. L. 607; Gillis v, Space, 63 Barb. 177.

If an offer of employment is made to be performed at a distance from where the servant had contracted to labor, he is not bound to accept it. He is not bound to go beyond the vicinity of the place where he was at work. If it is services to be performed in the same region, then he must accept it; otherwise not, Walworth v. Pool, 4 Eng. (Ark.) 394; and Costigan v. Mohawk, etc., R. Co., 2 Denio 606; the actress was not bound to leave New York City to find employment; nor a school teacher to go to a distant town, Gillis v. Space 63 Barb. 177; Shannon v. Comstock, 21 Wend. 457; Heckscher v. McCrea 24 Wend. 304; thus, where a teacher was engaged to teach a winter school, it was intimated that she would not be compelled to teach a summer school at a much lower rate of wages and of a primary grade, Gillis v. Space, 63 Barb. 177. If a former action has been brought for damages, on account of a breach of the contract, it will be a bar to a second action, although if it had not been brought at so early a date a greater sum for damages could have been recovered at the time such second action is brought, Goodman v. Pocock, 15 Ad. & E. 576; Ricks v. Yates, 5 Ind. 115; Madden v. Porterfield, 8 Jones L. 166; Booge v. Pacific R. Co., 33 Mo. 212; Dunn v. Murray, 9 Barn.