brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised." "No action shall be brought," are the words of the statute, which, apparently, does not make a verbal contract absolutely void, but prevents an action being brought upon it (d). It has, however, been held that an agreement of hiring and service not to be performed within a year, and not committed to writing, could not be enforced by criminal process under the repealed Master and Servant Act, 1867 (e). The Statute of of Frauds, it may be added, only applies to contracts which on the face of them show that they cannot be performed within a year. It does not extend to cases in which it is improbable that the contract will be completed within that time, or in which the performance of the contract has, in point of fact, taken more than a year, if it might be performed within the year, and there be no stipulation to the contrary(ƒ). An agreement for a longer term than a year, but liable to be determined on a contingency which may happen within the year, is within the statute, and must be in writing; for example, an agreement to let and hire a carriage for five years, but liable by custom to be determined at any time on payment of a year's hire (g).

(d) Leroux v. Brown (1852), 12 C. B. 801; 22 L. J. C. P. 1. But see Willes, J., in Williams v. Wheeler (1860), 8 C. B. N. S. 316.

(e) Banks v. Crossland (1874), L. R. 10 Q. B. 97; 44 L. J. M. C. 8; 32 L. T. 226; 23 W. R. 414. Lush, J. based his decision on the fact that under the 4 Geo. IV. c. 34, s. 3, a contract of service, in order to be enforced must be in writing, or the servant must have entered into service, and that the Act of 1867 extended only to cases within the old Acts. On the other hand, the Scotch Courts decided that under the above Act a complaint against a servant for failure to enter upon a contract of service might be entertained, although the contract was not in writing. Kershaw v. Mitchell & Co., March 16,

1872, 2 Coup. 206.

(f) Souch v. Strawbridge (1846), 2 C. B. 808 (contract for the maintenance of a child "so long as the defendant shall think proper "); Smith v. Neale (1857), 2 C. B. N. S. 67; 26 L. J. C. P. 143.

(g) Birch v. Liverpool (1829), 9 B. & C. 392; 4 M. & R. 380; Davey v. Shannon (1879), L. R. 4 Ex. D. 81; 48 L. J. 459; 40 L. T. 628; 27 W. R. 599, (engagement for three years by a foreman tailor on the terms that if the defendant left plaintiff's employment he should not engage in the service of any one carrying, or himself carry, on business of tailor, &c., within five miles of D.; within the statute); Cherry v. Heming (1849), 4 Ex. 631; 19 L. J. Ex. 63.

The manner in which the Courts have construed the 4th section will be understood from the following illustrations :

A. verbally agreed on the 27th of May with B. to take B. into his service as groom and gardener for a year, to commence on the 30th of June next. No action could be brought (h).

A. delivered to B. on the 20th of July a memorandum in writing which was unsigned, and which contained proposal, and terms as to B. entering A.'s service for a year. B. entered A.'s service on the 24th of July next, and was discharged before the end of the year. No action lay for not continuing B. in A.'s service (i).

Verbal agreement on the 2nd of October, 1854, between A. and B. that A. should employ B. as a traveller, until the 1st of September, 1855, and for a year thereafter, unless the employment were determined by three months' notice. An action for wrongful dismissal did not lie (k).

Plaintiff agreed on Sunday the 23rd of March to serve defendant for a year, commencing next day. On Monday plaintiff entered defendant's service, received £20 on account, and gave a receipt-" On account of my salary for assistance in keeping books from Lady-day, for twelve months." A jury might infer a fresh substituted contract on the 24th for a year's service (l).

Plaintiff entered the service of defendant under a written agreement, dated April 13th, 1871, by which he agreed to accept "the situation as foreman of the works of the defendant, &c.," on his receiving "a salary of two pounds per week and house to live in from 19th April, 1871." A weekly hiring; and evidence of a conversation at the time of signing the contract with a view to show that a hiring for a year was intended, not admissible (m).

The agreement need not be in one writing; it may be contained in several documents which refer to each other, and which do not require verbal evidence to show that they in fact refer to each other (n). Thus, when A., a master builder, filled in, signed, and sent to the Secretary of the Free Labour Registration Society a form containing parti

culars as to the kind of employment and terms offered by him at S., and when B., having heard the form read over to him, signed an agreement headed "Free Labour Society," by which he stated that he had accepted employment at S., and that he would not quit the service of his employer without just cause, it was held that the documents sufficiently referred to each other, and constituted a contract in writing signed by both parties (o). The signature may be on one part of the memorandum or agreement; the terms of the employment may be on another; and the signature need not have been put to attest or verify the contract. A draft agreement between plaintiffs and a company was prepared; a minute of a resolution to engross, sign, seal, and execute the agreement was entered in the company's books; and at the next board meeting the chairman signed the minute thus: "Read and confirmed; Claud Hamilton." Held that, though the signature might have been intended merely to be in compliance with the requirements of the Companies Act, 1862, s. 67, it satisfied the Statute of Frauds (p).

The fact that an agreement otherwise within the statute has been partially performed, does not take it out of the statute (q). But when work has been done-whether it was

(0) Crane v. Powell (1868), L. R. 4 C. P. 123. A clause in articles of association that Mr. W. E. "shall be solicitor of the company, &c.,' does not create a contract between the plaintiff and the company. It is res inter alios acta, of which the former cannot take advantage. Eley v. Positive Government Security Life Assurance Co. (1876), L. R. 1 Ex. D. 20, and 88; 45 L. J. Ex. 58, and 451; 33 L. T. 743; 34 L. T. 190; 24 W. R. 252 and 338. As to evidence of appointment of officer, Browning v. Great Central Mining Co. (1860), 5 H. & N. 856; 29 L. J. Ex. 399.

(p) Jones v. Victoria Graving Dock Co. (1877), L. R. 2 Q. B. D. 314; 46 L. J. Q. B. 219: 36 L. T. 347; 25 W. R. 501; Ridgway v. Wharton

(1857), 6 H. of L. 238; 27 L. J. Ch. 46; Johnson v. Appleby, see note (c).

(q) Boydell v. Drummond (1809), 11 East, 142. The equitable doctrine of part performance is applicable only to sale of land, not to contracts of service. Britain v. Rossiter (1879), 48 L. J. Q. B. 362; 40 L. T. 240; 27 W. R. 482. (Agreement verbally on Saturday to serve for a year; employment to commence next Monday; plaintiff served for part of a year and then was dismissed; held that the contract was within sec. 4 of the Statute of Frauds, and that the case was not taken out of the Statute by part performance.) Here all wages due up to dismissal were paid. See Wood's Master and Servant, pp. 357 -374.

done within a year or not-and an action is brought on an express or implied agreement to pay for the worth of the work actually done, the absence of writing is no defence to the action (r).

The statute was intended to exclude the mistakes and conflicts of evidence which arise when there is no complete written record of a contract. The object of the statute would be defeated, the evils which it was designed to avert would be introduced, if it were permissible to vary, add to or subtract from the written words by verbal testimony, and if one of the parties might say, "This was qualified by an arrangement made at the time;" or "our meaning was not completely expressed by the written agreement, and was so and so." In Giraud v. Richmond (s), the written agreement between a master and his clerk stated that the latter should receive a certain annual salary, increasing each year; the clerk sought to show that it was agreed that the salary should be paid quarterly; the Court would not receive evidence with this view, nor would it infer such an agreement from the fact that the salary had been paid quarterly. The consideration for the promise must be stated; if the agreement merely mentions the promise on the part of one person, without stating the consideratione.g., if it merely says, "A. B. hereby promises to be groom to C. B. for two years," it will not be enforced against A. B. (t).

The above principles must be taken with some reservations. Men rarely commit to writing all that they intend and agree to; they do not write out what may be taken for granted; cela va sans dire holds as to many things which good sense would imply. The law recognises this fact, and if a jury are of opinion that a contract was made with reference to a particular custom, it will be regarded as part of the contract. Whether such a custom exists, and whether the contract was intended to embody it, is a question of fact for the jury (u).

A term in the contract may be the rules of the establishment or workshop in which a workman is engaged (x), Knowledge of such rules by the servant must be shown; e.g., by proving that the rules were stuck up in a prominent place in the workshop, and that the workman could read.

It will be seen hereafter that a contract of hiring and service is prima facie a contract for a year (y).

Contracts of Seamen.

Agreements with seamen have been the subject of the special attention of the Legislature. By section 149 of the Merchant Shipping Act of 1854, they must be in writing, except in case of ships of less than eighty tons register tonnage, exclusively employed in the coasting trade of the United Kingdom. The Merchant Shipping Acts contain many regulations with respect to the form of and particulars in agreements with seamen. They are mainly comprised in sections 146—167 of the Merchant Shipping Act of 1854 (17 & 18 Vict., c. 104), sections 7 and 8 of Act of 1873 (36 & 37 Vict., c 85), and section 26, subsection 5 of Act of 1876 (39 & 40 Vict., c. 80). These agreements are exempt from the Stamp Act (Merchant Shipping Act, 1854, section 9, and 33 & 34 Vict., c. 97, s. 3).

Under the 2 Geo. II., c. 36, which required all agreements for wages between captains and their crews to be in writing, it was decided in White v. Wilson (z), that a contract which did not mention, besides the money wages, the fact that a sailor was to get "the average price of a negro slave" was void. It seems probable that an agreement not in writing would now be binding (a).

Stoke upon Trent (1843), 5 Q. B. 303, as to custom as to holidays; Grant v. Maddox (1846), 15 M. & W. 737 as to usage as to payment in theatrical profession.

(x) Carus v. Eastwood (1875), 32 L. T. 855.

(y) Chapter XIV.

(z) (1800), 2 B. & P. 116. See also Elsworth v. Wollmore (1803), 5 Esp.

84.

(a) Pollock and Bruce's Edition of Maude and Pollock on Shipping, vol. I., 196.