plied power of defeasance, although he does not reside within the walls of the master's house. Thus where a head gardener was hired for a year at £100 wages, to superintend hothouses, pineries, &c., and a house was assigned him within his master's grounds, and he had the privilege of taking in apprentices for a year at £15 premium, and had five under-gardeners to assist him, and after serving for several years he received a month's warning, which expired in the middle of the current year, whereupon the gardener claimed an entire year's wages, it was held that he was a menial servant, and, as such, only entitled by custom to "a month's warning, or a month's wages." (m)

When a power of defeasance is vested in the parties either by custom or special agreement, or the contract is made defeasible upon the happening of a given event, the hiring is nevertheless a yearly hiring,(») so that if the power of defeasance is not exercised, and the contract is permitted to run. on, and the service to continue for a year, there is a year's hiring and service, which will gain a settlement under the poor laws.(o) "It is a yearly hiring notwithstanding the power of determining it, if that power is not exercised before the expiration of the year. The contingency not having happened and the contract not having been defeated during the year it enures after the year's service as a yearly hiring."(p)

Indefeasible yearly hirings.—When the employment of a servant is of a permanent nature, and annual wages are reserved, the hiring is in all cases a yearly hiring;(7) and when the servant is not a household or domestic servant, the hiring cannot be put an end to by either party without the consent of the other, before the termination of the current year. A hiring of a servant in husbandry, for exampe, is an indefeasible yearly hiring, (r) analogous to a yearly tenancy. At the end of each year a new contract arises to serve for the year commencing, which will continue as long as the parties may please, and can only be terminated at the end of the current year,(s) unless the servant is guilty of misconduct. A general hiring of a clerk, foreman, journeyman, or traveller, at annual wages, "with board in the house,"

(m) Nowlan v. Ablett, 2 C. M. & R. 57. (n) Rex v. Atherton, Burr. 203, No. 71. Rex v. Birdbrooke, 4 T. R. 246. Bayley, J., 1 B & Ad. 341. Rex v. Farleigh Wallop, 1 B. & Ad. 340, 342. Rex v. New Windsor, Burr. 22, No. 7.

(o) Ld. Kenyon, 4 T. R. 246.5 ib. 207, 208. Rex v. Gt. Yarmouth, 5 M. & S. 114. Rex v. Northwold, 2 D. & R. 792. Ante, 659.

(p) Rex v. Sandhurst, 7 B. & C. 562; 1 M. & R 101, s. c. Rex v. Byker, 3 D. & R. 336; 2 B. & C. 119, s. c. per Bayley, J. Rex v. Lid

ney, Burr. s. c. 1.

(9) 3 T. R. 76; 5 T. R. 506. As to exceptive hirings, see Reg. v. Holbeck, 4 Ad. & E. N. s. 590. Ib. 597.

(r) Rex v. Lyth, 5 T. & R. 327. Abbott, C. J., 6 D. & R. 101; 4 B & C 86. Rex v. Elslack, 2 B. Mott, 231, pl. 298. (8) Bell v. Chaytor, 1 C. & K. 162. v. Collyer, 12 Moore, 552; 2 C. & P. Williams' v. Byrne, 2 N. & P. 139. Murray, 9 B. & C. 780.

Beeston 208, s. c. Dunn v

is also a yearly hiring, which can only be put an end to by consent, or at the expiration of the current year; (t) and so also is a general hiring of postilions and ostlers, upon the terms that they are to receive board and lodging in the house, and the vails or perquisites of the stables in lieu of wages; (u) also a general hiring of a warehouseman, "the employer engaging to pay 127. 10s. per month for the first year, and advance 107. per annum until the salary should be 1807. ;"(x) also a general hiring of editors, sub-editors, reporters, and other persons regularly employed upon old standing and permanently established newspapers and periodicals.(y)

A RESERVATION of quarterly, monthly, or weekly WAGES is not inconsistent with a yearly hiring. "Whether the wages be to be paid by the week or the year cannot make any alteration in the duration of the service if the contract were for a year ;"(z) but if there has been no continued service for a lengthened period, and there is nothing in the nature of the employment, and no particular custom or usage leading necessarily to the conclusion that the hiring was for a year, the payment of weekly or monthly wages raises a presumption in favour of a weekly or monthly hiring. (a)

HIRING by the MONTH.-A journeyman miller was hired "at 88. a month wages, with liberty to depart at a month's wages or a month's warning," and the hiring was held to be a hiring by the month. (b) But when the wages are reserved weekly with a proviso for a month's warning, the presumption is in favour of a conditional and defeasible yearly hiring.

HIRING by the WEEK.-If there be any thing in the contract to show that the hiring was intended to be for a year, then a reservation of weekly wages will not control that hiring. But if the payment of weekly wages be the only circumstance from which the duration of the contract is to be collected, it must be taken to be only a weekly hiring." (c) The following hirings have been held to be hirings for a week, and so on from week to week. A hiring of a maid servant at 1s. 4d. a week, and board and lodg

(t) 3 Burr. 823; 12 Moore, 552. Turner v. Robinson, 5 B. & Ad. 789; 2 N. & M. 829, s. c. ; 6 C. & P. 15, s. c. Aikin v. Acton, 4 C. & P. 208.

(u) 3 Burr. 759, C. 236; 2 Bott. 294; Burr. 823, No. 257; 2 Bott. 299, c. 296; Cald. 443; 2 Bott. 230, pl. 297. Rex v. St. Martin's, Leicester, 8 B. & C. 674.

(x) Fawcett v. Cash, 5 B. & Ad. 908; 3 N. & M. 180, s. c.

(y) Holcroft v. Barber, 1 Car. & Kirw. 4. Baxter v. Nurse, ib. 10.

(2) Kenyon, C. J., 4. T. R. 246. Beeston v.

Collyer, 12 Moore, 552. Rex v. Hales, 5 T. R. 668. Callo v. Brouncker, 4 C. & P. 518. Rez V. Seaton, Cald. 440.

(a) Rex Pucklechurch, 5 East, 384. Bayley v. Rimmell, 1 M. & W. 507. Baxter v. Nurse, 7 Sc. N.R. 801, 6 M. & Gr. 935, s. c. (b) Rex v. Clare, Burr. 819, No. 255; 2 Bott. 229, pl. 295.

(e) Ellenborough, C. J. 3 M. S. 245; Burr. 280, No. 98: 5 East, 384; 2 East, 425; 12 East, 352. Ashurst, J., 2 T. R. 455, 622. Buller, J., 5 ib. 208. Baxter v. Nurse, 7 Sc. N. R. 801; 6 M. & Gr. 935, s. c.

ing for as long time as they wanted a servant." (d) A hiring of an assistant plumber and glazier at 6s. a week wages, board, lodging, and washing, summer and winter." (e) A hiring of a gardener at 6s. a week for the winter and 9s. a week for the summer;" (f) and a hiring of a hostler at 2s. a week in the summer, and 1s. 6d. a week in the winter. "The mere arrangement," observes Bayley, J., "that the wages shall be at one rate in the summer and at another in the winter does not show that the parties contemplated a service to endure through the summer and winter, and therefore that they intended a hiring for a year; but shows only that they intended that if the servant, being hired at weekly wages, should remain till the summer, he should then have so much per week. The true meaning of such an arrangement is merely this: that the servant's wages as a weekly servant are to be regulated by the seasons." (g)

66

A hiring of a servant in husbandry" at 4s. weekly wages, board, washing, and lodging, except in the harvest month, when the wages are to be increased to 10s. 6d. a week, and then again reduced to 4s.," and a hiring of a servant at 8s. per week, and two guineas for the harvest, to do anything the gardener shonld set him about," were also respectively held to be weekly hirings, although, as it was contended in the last case, the agree ment for a gross sum to be paid for the harvest, imported an agreement for service for a consolidated period inconsistent with a mere weekly hiring. (h) But if terms are introduced inconsistent with the notion of a weekly hiring, the reservation of weekly wages will be regarded merely as a mode of payment and not as an indication of the duration of the contract. Thus the presumption of a weekly hiring resulting from a reservation of weekly wages is rebutted by a stipulation for a fortnight or a month's notice to quit. (i)

Service at will.-A boy was employed to work "for meat, drink, and clothes, as long as he had a mind to stop," and served for two years upon these terms, and the service was held to be a mere service at will.(k) So where an assistant workman was "to come and go as he liked," and an ostler and his master were "to be at liberty to separate when they pleased," the service was held to be a service at will.(7) In these cases

(d) Rex v. Elstack, 2 Bott. 231, pl. 298.

(e) Rex v. Dedham, Burr. 653, 2 Bott. 227, pl. 293.

(f) Rex v. Warminster, 9 D. & R. 70. (g) Rex v. Rolvenden, 1 M. & R. 691. (h) R. v. Dodderhill, 3 M. & S. 243. R. v. Lambeth, 4 ib. 315.

(i) R. v. Hampreston, 5. T. R. 208. R. v.

St. Andrew, Pershore, 8 B. & C. 679. R. v.
Birdbrooke, 4 T. R. 246. R. v. Gt. Yarmouth, 5
M. & S. 117.

(k) R. v. Christ's Parish, York, 3 B. & C. 459; 5 D. & R. 314.

(1) R. v. Gt. Bowden, 7 B. & C. 249; 1 M. & R. 13, Mag. Cas. 42. R. v. Elstack, 2 Bott. 231, c. 298.

there is in truth no contract of hiring at all. (m) The transaction amounts merely to an authority to serve upon certain terms. If the work is actually performed and accepted, the law raises an implied promise of remuneration from the employer to the workman, but the former is not bound to provide the work, nor is the latter bound to execute it.

GENERAL DUTIES, OBLIGATIONS, and LIABILITIES of the MASTER and

SERVANT.

Liabilities of the MASTER.-It is the first duty of the master after the contract of hiring and service has been entered into, to take the servant into his employ and enable him to earn the hire or reward agreed to be paid, and if he neglects so to do he renders himself liable forthwith to an action for a breach of contract.

Payment of wages.-If the contract of hiring and service leaves the amount of salary to be fixed by a third party, an application by the clerk or servant to such third party to fix the salary, is a condition precedent to the liability of the employer.(n) If a household servant, hired for a year or any aliquot portion of a year, is hurt or disabled, or falls sick whilst doing his master's business, the master is not entitled to make any deduction from the agreed wages for the time that the servant was incapacitated for the performance of his ordinary work. (0) And if after having taken the servant into his service, he improperly dismisses him, or prevents him by a continued system of persecution from continuing in the service, he is liable for a year's, a month's, or a week's wages, according as the hiring may have been by the year, month, or week. (p) The servant has his choice of divers remedies: first he may bring an action for the wrongful dismissal, declaring specially upon the contract, and so recover the damages he has sustained. This remedy he may pursue immediately.(q) Secondly, if he waits until the expiration of the term for which he was hired, he may then sue for a year's, a month's, or a week's wages, according as the hiring may have been by the year, month, or week. In declaring, in the last case, upon the contract, he may aver that he has performed his own part of it, his readiness to serve being considered

(m) R. v. St. Matthew's, Ipswich, 3 T. R. 449. (n) Owen v. Bowen, 4 C. & P. 93.

(o) Rex v. Wintersett, Cald. 300. Rex v. Sudbrooke, 1 Smith, 59. Chandler v. Grieves, 2 H. Bl. 606, n.

(p) So, by the French law, Si c'est par le fait du maitre qui est le conducteur de ces services,

qu'il ne les lui rend pas, le maitre doit payer au serviteur l'année entiere de ces services; et il peut meme etre condamné aux dommages et intérêts du domestique. Pothier, Louage, No. 173, 174.

(q) Pagani v. Gandolfi, 2 C.& P. 370; Duna v. Murray, 9 B. & C. 780.

equivalent to actual service.(r) And, lastly, he may, after the term of service has expired, sue for his wages in indebitatus assumpsit, relying on the doctrine of constructive service. (s)

When the contract is for a year's service at wages, payable yearly, the contract is entire and indivisible, and the servant or workman cannot recover from the employer wages pro ratâ, (t) unless the contract has been rescinded or abandoned, or has been put an end to by the exercise of a power of defeasance vested in the parties; (u) so that if the servant dies in the middle of the year, his personal representatives will not be entitled to recover a proportionate part of the salary in respect of the time he actually served; (x) and if he is himself guilty of such misconduct as entitles the master to dissolve the contract and dismiss him from his service, (post, 746, 747,) he will lose all right to wages in respect of the portion of the year he has actually served. (y) But if the contract is put an end to by virtue of a power of defeasance vested in either of the parties by custom or by agreement, or if the contract has been abandoned by mutual consent, the wages are apportionable, and the servant must be paid pro ratâ up to the time of his departure. (2)

The bankruptcy of the master does not operate ipso facto as a dissolution of a contract of hiring and service, and a certificate under a commission of bankruptcy discharges the master only from such wages as were provable under the commission. (a)

If the amount of wages to be paid has not been settled and agreed upon by the contract, there is an implied promise on the part of the employer to pay wages according to the customary and reasonable rate of remuneration. Against the claim for wages, the master cannot set off the value of goods lost or broken by the gross negligence of the servant, unless there is an express agreement to that effect. But the master must bring

(r) Gandell v. Pontigny, 4 Campb. 375. Collins v. Price, 1 M. & P. 239; 8 Bing. 14, s. c. And see ante, 205.

(s) See the notes to Cutter v. Powell, 2 Smith's leadg. cas. 20, 21. Smith v. Kingsford, 3 Sc. 279. Smith v. Hayward, 7 Ad. & E. 544; 2 N. & P. 432, s. c. Robinson v. Hindman, 3 Esp.

234.

(t) Car riens est due tanque le fin de l'an, quod nota, et le contract est entier, et ne poet ester sever. Bro. Abr. fol. 57, (LABORER,) pl. 48; ib. fol. 170, pl. 31; Vin. Abr. (APPORTIONMENT) 8 & 9.

(u) Ellenborough, C. J., Spain v. Arnott, 2 Stark. N. P. C. 256. Huttman v. Boulnois, 2 C. & P. 512. Atkin v. Acton, 4 C. & P. 208. Giraud v. Richmond, 15 Law J., N. S.,

(C. P.) 180; Bro. Abr. (APPORTIONMENT) 26, pl. 13.

(x) Countess of Plymouth v. Throgmorton, Salk. 65; 3 Mod. 153, s. c.; 6 T. R. 326.

(y) Turner v. Robinson, 5 B. & Ad. 789; 2 N. & M. 829, s. c. Ridgway v. Hungerford Market Company, 3 Ad. & E. 171; 4 N. & M. 797, s. c.; Pothier, Louage, No. 174.

(z) Lamburn v. Cruden, 2 Sc. N. R. 534; 2 M. & Gr. 252. Bayley v. Rimmell, 1 M. & W. 506. Phillips v. Jones, 1 Ad. & E. 333; ante, 213-216.

(a) Thomas v. Williams, 1 Ad. & E. 685; and see 5 & 6 Vict., c. 122, ss. 28, 29, as to the payment of clerks' and servants' wages in cases of bankruptcy.