that he should have yearly wages and a house to live in rent free, several inferior gardeners were subject to his directions, and the house he lived in was not under the roof, or a part of the master's dwelling-house, still the jury found him to be a menial servant, and the court held that the verdict was right, and that he was consequently liable to be discharged on a month's notice (q). It has been held that if a master turn away his domestic servant without such previous notice, and there were no fault or misconduct in the servant to warrant it, he is entitled to a month's wages, although no express contract to that effect were made (r). This doctrine may perhaps be supported on the ground that a master and servant contracting for the hire of the latter may be presumed to make the agreement subject to the terms and custom which are almost universally adopted on these occasions (s). In all probability, the general engagement of a clerk would be deemed to be a yearly hiring, except in cases in which there prevailed a custom in the particular business in reference to which he was retained, to discharge clerks so employed, without warning, or on giving any particular notice. In Beeston v. Collyer (t), it appeared that the plaintiff commenced his service in March, and served the defendant, an army agent, for many years, in the capacity of his clerk. In 1811 the plaintiff's salary was paid quarterly; for the last six years before 1826, it was paid monthly. The defendant having dismissed the plaintiff in December, 1826, without assigning any reason, it was held that there was an implied yearly hiring, and that the defendant was bound to pay the salary until March. Best, C. J., observed, "If a master hire a servant without mention of time, that is a general hiring for a year; and if the parties go on four, five or six years, a jury would be warranted in presuming a contract for a year, in the first instance, and so on, for each succeeding year, (q) Nowlan v. Ablett, 2 C., M. & R. 54; 1 Gale, 72, S. C. (r) Robinson v. Hindman, 3 Esp. 235; and per Cur. in Beeston v. Collyer, suprà; sed vide 1 Bla. C. 425. But the reason assigned by the learned commentator for his opinion seems not to apply to the case of domestic servants; see per Abbott, C. J., Hutt PP man v. Boulnois, 2 C. & P. 511, 512. (s) See per Lawrence, J., Cutter v. Powell, 6 T. R. 326; and ante, 21; Fawcett v. Cash, 5 B. & Ad. 904; 3 Nev. & M. 177; Nowlan v. Ablett, 2 C., M. & R. 54. (t) Ante, 576, note (m); and see Huttman v. Boulnois, 2 C. & P. 510; 4 C. & P. 408. as long as it should please the parties: such a contract being implied from the circumstances, and not expressed, a writing is not necessary to authenticate it. It is not necessary for us now to decide whether six months, three months, or any notice be requisite to put an end to such a contract; because, under the circumstances of the present case, after the parties had consented to remain in the relation of employer and servant from 1811 to 1826, we must imply an engagement to serve by the year, unless reasons are given for putting an end to the contract." And Mr. Justice Gaselee said, "There can be no doubt that a general hiring is a hiring for a year. In domestic service, there is a common understanding that such a contract may be dissolved on reasonable notice, as a month's warning, or a month's wages. There does not appear to be any such practice with respect to servants in husbandry (u); and we have no evidence what is the custom with clerks. We must, therefore, decide this case according to the general rule, and hold a contract between the parties to be a hiring for a year." In Fawcett v. Cash (x), the plaintiff, on the 5th of March, A. D. 1832, entered as warehouseman into the service of the defendant, the latter engaging to pay him at the rate of 127. 10s. per month for the first year, and to advance 107. per annum until the salary was 1807.; and it was held that this was at all events a hiring for one year at least. And a contract to serve as reporter to a newspaper for one whole year from a certain day, and so from year to year to the end of each year commenced, so long as the parties shall respectively please, is yearly service so long as it lasts, and cannot be terminated except at the end of any current year (y). So where an appointment of a clerk to a public company was by a resolution, which stated the salary to be 2007. per annum, but stated nothing as to the period of payment, and the clerk acted as such, and was paid several sums of 501. each at periods just after the usual quarter days of the year; it was held that proof of these facts warranted a declaration in an action for sa (u) Servants in husbandry are frequently hired by the year from Michaelmas, and this is an entire hiring; Spain v. Arnott, 2 Stark. R. 257. It seems that a general hiring of a husbandry servant is a yearly hiring; see Huttman v. Boulnois, 2 C. & P. 511. (x) Fawcett v. Cash, 5 B. & Ad. 904. (y) Williams v. Byrne, 2 Nev. & P. 139; S. C. nom. Williams v. Bird, 1 Jur. 578. lary, which alleged the contract to be at a salary of 2007. per annum, payable quarterly (z). The presumption that a general hiring is a hiring for a year may be rebutted by evidence, showing that such was not the intention of the parties (a). There was formerly a doubt whether or not a contract by a party to remain in the service of his employer during the life of the former was valid; it would seem that such a contract is not illegal if under seal, although but slight damages would probably be given for violating so improvident a bargain (b). If a servant misconduct himself, as by wilfully disobeying orders, repeatedly sleeping out at night without leave, &c., he may be discharged (without warning) before the expiration of the period for which he was hired, and is not entitled to any wages from the day he is so discharged, if they had not then accrued due (c). And where the payment is to be quarterly, or yearly, or at fixed periods, and the servant improperly leave his master (d); or is guilty of misconduct during the currency of such quarter; it seems that he is not entitled to wages for any part of such quarter, &c., even to the day he quits, as there can be no apportionment of an entire sum under such circumstances (e). But (z) Ridgway v. Hungerford Market Company, 3 Ad. & E. 171; 4 Nev. & M. 797; 1 Harr. & W. 244, S. C. (a) Bayley v. Bramley, 1 M. & W. 506. (b) See 1 Bla. C. 424, and note (3) of Mr. Christian; Wallis v. Day, 2 M. & W. 273, 281; 15 Vin. Abr. 323. By the French Law, “On ne peut engager ses services qu'à temps, ou pour une entreprise déterminée;" upon which Rogron observes, "On n'a pas dû permettre à un homme de s'engager à servir toute sa vie une autre personne. Une pareille stipulation serait nulle; car elle est contraire à la liberté individuelle." gardener absent himself for four days (d) Huttman v. Boulnois, 2 C. & P. 510. (c) Robinson v. Hindman, 3 Esp. 235; Spain v. Arnott, 2 Stark. R. 256; Gandell v. Pontigny, 4 Camp. 375; 1 Stark. R. 198, S. C.; Atkin v. Acton, 4 C. & P. 208. In the latter case, the plaintiff, a clerk, assaulted his employer's maid servant, with intent to commit a rape; this was held to be a good ground for discharging him. In Crawford v. Reid, 1 Show. Parl. C. 124, it was held that if a principal principal (e) See Atkin v. Acton, 4 C. & P. 208, 209; Ridgway v. Hungerford Market Company, 4 Nev. & M. 797; 3 Ad. & E. 171; 1 Harr. & Wol. 244; Turner v. Robinson, 2 Nev. & M. 829; 6 C. & P. 15; 5 B. & Ad. 789, S. C.; post, Index, Apportionment; and ante, $30. 580 where the contract in such a case is dissolved by mutual consent before the period at which the wages become due, even after the issuing of a commission of bankruptcy, the servant may recover his wages pro ratú, without any express contract to that effect (f). In order to justify the immediate discharge of a yearly servant there must be proved against him moral misconduct, pecuniary or otherwise, wilful disobedience, or habitual neglect (g). The fact of a servant's inducing his master's apprentice to run away (h), or of a clerk's having made fraudulent entries in his account books (i), have been held justifiable causes for an immediate dismissal by the master. So if a person hired on an annual service as clerk, to conduct an establishment for his master, set up a claim to be a partner, although in a respectful manner and bona fide, it is sufficient cause for the master to dismiss him without notice (k). And if the acting manager of a theatre conduct himself in such an improper manner as to make it injurious to the interests of the theatre to keep him, the lessee or proprietor may lawfully dismiss him (7). Where a justifiable cause of dismissal exists, it is sufficient to prevent the servant's recovering wages, though the servant might not in fact have been dismissed upon that ground; and it is not necessary that the cause relied on in answer to an action for wages should have been stated at the time of dismissal (m). Where wages are payable quarterly, or at other stated intervals, and the servant is tortiously dismissed (n) in the middle of the quarter, &c., he cannot, at all events before the expiration of the quarter, &c., recover his wages under an indebitatus count for work and labour (o); and it should seem that where the ac (f) Thomas v. Williams, 1 Ad. & E. 685; 3 Nev. & Man. 545, S. C. (g) Callo v. Brouncker, 4 C. & P. 518. This was the case of a courier, or valet, who had driven the plaintiff's family to an hotel, where he had been desired not to stop, and been occasionally sulky and negligent, and once insolent in his manner. (h) Turner v. Robinson, 6 C. & P. 15; 5 B. & Ad. 789; 2 Nev. & M. 829, S. C. (i) Baillie v. Kell, 6 Scott, 379; 4 Bing. N. C. 638. (k) Amor v. Fearon, 1 P. & Dav. 398; 9 Ad. & E. 548, S. C. (1) Lacy v. Osbaldiston, 8 Car. & P. 80. (0) Smith v. Hayward, 2 N. & P. 432; 7 Ad. & E. 544, S. C.; see also Gundell v. Pontigny, 1 Stark. 198; 4 Camp. 375, S. C.; recognized in Collins v. Price, 2 M. & P. 233; 5 Bing. 132, S. C.; see Archard v. Hornor, 3 C. & P. 349; see the precedent, 2 Chitty, Pl. 6th ed. 205. Trover by a servant for his livery, Crooker v. Molyneux, 3 C. & P. 470; Hulle v, Heightman, 2 East, 145. And as to the claim of the personal representa five of the servant upon the death of tion is commenced after the expiration of the quarter the declaration should be special for wrongfully preventing the servant from completing his term of service; he should not sue for work done, but for being prevented doing it (p). And where a performer is to be paid not merely for the nights on which he performs but for those on which he does not perform, he should declare for an arrear of wages, not for work and labour (q). It seems that a master is not bound to provide medical attendance or medicines for his servant in husbandry (r), or even his menial servant (s) in case of illness, even though such illness arise from an accident which occurred whilst the servant was performing the duties of his situation: though a master is bound to provide medical assistance for his apprentice (t). And if a master send for a medical practitioner for his servant, whilst under his roof, the master is liable; and he cannot deduct the expense from the servant's wages, unless it were specially so agreed (u). Where a domestic servant has left his master for a considerable period, it seems that it will in general be presumed that his wages have been paid, where there is no admission that they are in arrear, or any circumstance to rebut the presumption (x). The same presumption arises in the case of workmen or labourers on proof that it was customary for the employer to pay his men weekly, &c. (y). If the servant were under age, the master cannot deduct from or set off against the wages, advances or payments made by him to or for the servant, for articles not being necessaries for the latter (z). XIII. SHERIFFS, AND OTHER MINISTERIAL OFFICERS. By the common law, a sheriff is bound to execute all the king's writs without fee or reward (a); and for performing his official |