Firstly. The Requisites of a Contract of Hiring and Service. By common law might be either by deed or parol. WHEN WRITING NECESSARY-STATUTE OF FRAUDS. By the common law, a servant might be hired either by deed or by a parol (a) contract, but when hired or retained by deed, could only be discharged by an equally formal instrument (b); when hired by parol, he might Statute of also be discharged by parol (c). Since the passing of Since the the Statute of Frauds, however, it has become necessary Frauds, in many cases, that contracts of hiring should be in writing newriting. cessary in some cases. By the fourth section of that statute (d), it is enacted, The Statute "That no action shall be brought (e) upon any agree- of Frauds. ment that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.” tute. In this enactment, the word "performed," means a Construccomplete, and not a mere inchoate or partial perform- tion of staance; and, therefore, where an agreement distinctly shews upon the face of it, that the parties contemplated its performance to extend over a greater space of time than one year, it is within the statute; but, where the contract is such that the whole may be performed within a year, and there is no stipulation to the contrary, the statute does not apply (ƒ). Accordingly, where (g) the defendant verbally agreed, Bracegirdle on the 27th of May, to take the plaintiff into his service v. Heald. as groom and gardener, for a year, to commence on the 30th of June following, but afterwards refused to receive him; it was held, that the plaintiff could not sustain any action for such breach of contract as there was no written agreement; Lord Ellenborough, C. J., saying, "if we were to hold that a case which extended one minute beyond the time pointed out by the statute did not fall within its prohibition, I do not see where we should stop; for, in 67, 69. (c) Dalt. Just. cap. 58; Reg. v. Daniel, 6 Mod. 182. (d) 29 Car. 2, c. 3. The corresponding Irish act is 7 Wm. 3, c. 12. (e) The case of Carrington v. Roots, 2 M. & W. 248, decided that not only can no action be brought upon an agreement within this section, if it be not reduced into wri ting, but that the contract is, for all purposes, void. See Reade v. Lamb, 2 L. M. & P. (f) Per Tindal, C. J.; Souch v. Strawbridge, 2 C. B. 815; Boydell v. Drummond, 11 East, 142. The cases on this subject will be found collected in 1 Smith's L. C., note to Peter v. Compton; and see Cherry v. Heming, 4 Exc. 631; S. C. 19 Law J., N. S., Exc. 63. (g) Bracegirdle v. Heald, 1 B & Ald. 722. Snelling v. Lord Huntingfield. Giraud v. Defeasible contract within the statute. point of reason, an excess of twenty years will equally not be within the act." So where (h) the defendant, on the 20th of July, proposed to hire the plaintiff as bailiff for one year, to commence on the 24th of July; and the defendant at that time wrote a memorandum, (but which was signed by neither of the parties), which was delivered to the plaintiff, and by him taken away, stating the terms on which the plaintiff was to serve; and the plaintiff entered the defendant's service on the 24th, but before the expiration of the year the defendant, being displeased with the plaintiff, gave him a month's warning to quit his service; and the plaintiff left before the expiration of the year It was held, that he could not maintain an action against the defendant for not continuing the plaintiff for the year as there was no agreement in writing, in conformity with the Statute of Frauds. And where (i) the plaintiff entered into the service of the defendant under the following agreement :-"I agree to receive you as clerk or bookkeeper in my establishment, in consideration of your paying me a premium of 300l., and to pay you a salary at the following rates, viz. : for the first year 70l.; for the second 901.; for the third 110.; for the fourth 130.; and 150l. for the fifth and following years that you may remain in my employment; and I also agree in case of the death of either of us to return 150l." It was held, that the agreement was one that by the Statute of Frauds was required to be in writing; and that, there being a precise stipulation for yearly payments, evidence was not admissible to shew a verbal agreement for quarterly payments. The mere circumstance that a contract is defeasible, and may be put an end to within the year, does not take it out of the operation of the Statute of Frauds, if by its terms it is to continue for more than a year in case Contract for it is not put an end to (k). But a contract to serve for an indefinite an indefinite period, subject to be put an end to at any time, upon a reasonable notice, is not within the statute, though it may extend beyond the year (1). A contingency time not within it. (h) Snelling v. Lord Hun- (k) Birch v. Earl of Liver pool, 9 B. & C. 392; and see Roberts v. Tucker, 3 Exc. 632. (1) Per Tindal, C. J., in Souch v. Strawbridge, 2 C. B. 815. to contract is not within the statute, nor any case that depends upon a contingency (m). The words of the statute," not to Statute does be performed," mean, not to be performed on one side or not apply the other (n). Where, therefore, the contract has been completely completely performed on one side, the statute does not executed on apply (o). This position, however, is not quite beyond dispute (p). It seems clear, however, that the consi- But does, if deration, when entire, cannot be split: where, therefore, pletely exeany part of it is not executed, the statute has been cuted on held to apply (q). one side. not com one side. an implied But the statute does not apply where an agreement Statute does for a yearly hiring is merely implied from circum- not apply to stances (r). And it would seem to be the better hiring; opinion that it does not apply where the agreement is by deed (s), as the object of the statute would be satisfied or a hiring when the terms of the agreement were reduced into wri- by deed; ting and authenticated by a seal or mark. Nor does the statute, or the decisions upon it, affect the question of or affect what is a sufficient hiring to confer a settlement by service tlement by under it (t). And the absence of an agreement in com- hiring and (m) Per Denison, J., in Fenton v. Emblers, 3 Burr. 1278. (n) Donellan v. Read, 3 B. & Ad. 899. (0) Cherry v. Heming, 4 Exc. 631; 19 Law J., N. S., Exc. 63, S. C.; and see Souch v. Strawbride, ubi supra. (p) 1 Byth. Conv. (3rd ed.) 310, 311; 1 Smith's L. C. 143, note to Peter v. Compton; and see Taylor on Evid. 757; the judgment of Tindal, C. J., in Cocking v. Ward, 1 C. B. 868; and the judgment of Coltman, J., in Souch v. Strawbridge, 2 C. B. 816. It is to be observed, that in Cocking v. Ward the surrender by the plaintiff, which formed part of the consideration for the defendant's promise, had not been made in writing, and therefore the consideration was not entirely executed. A similar observation applies to Buttermere v. Hayes, 5 M. & W. 546 (see (q) Cocking v. Ward, 1 C. (r) Beeston v. Collyer, 4 (s) Cherry v. Heming, 4 (t) See per Bayley, J., in cases of set service; wages for services to amount or action for pliance with the Statute of Frauds would not defeat an action for wages in respect of services actually perperformed, formed; though the amount which a plaintiff in such except as a case could recover would depend upon what his services were worth, irrespectively of any agreement. And in the case of a dispute between master and cases under servant within the meaning of the statute 4 Geo. 4, c. 34, the absence of a contract in writing would not take the case out of the jurisdiction of a magistrate where the service had been entered into (u). of wages. Nor certain 4 Geo. 4, C. 34. Formal agreement not necessary. Mere ac knowledg. ment sufficient, if Where an agreement in writing is necessary under the terms of the Statute of Frauds, it is not necessary that there should be a formal agreement signed by the party to be charged: any acknowledgment in writing that he had entered into such an agreement would be a sufficient memorandum within the statute (v), if made before made before action brought. An acknowledgment made afterwards would not do (w). But it has been held, that the mere nomination to the bishop of the diocese of the plaintiff, as the defendant's curate is not a sufficient acknowledgment (x). action. Agreement may be collected And it matters not from how many different papers the agreement be collected, provided they are connected in sense (y); for the writing is merely evidence of the rous papers. contract which is made before any signature thereof by the parties (z). from nume What is required to be in writing in cases within Statute of Frauds. Considera tion must appear. The statute enacts, that "the agreement, or some memorandum or note thereof," shall be in writing, &c. This word "agreement includes the consideration upon which the agreement of the party to be charged is founded, as well as his promise (a). In every written contract of hiring and service, there (u) See sect. 3, and Reg. v. Lord, 12 Q. B. 762. (v) Roberts v. Tucker, 3 Exc. 632, 641; Longfellow v. Williams, Peake's Add. Cas. 225. (w) Bill v. Bament, 9 M. & W. 36. (x) Roberts v. Tucker, ubi supra. (y) Boydell v. Drummond, 11 East, 152; 1 Smith's L. C., note to Birkmyr v. Darnell; sec per Maule, J., in Weedon v. Woodbridge, 13 Q. B. 475. (z) Laythoarp v. Bryant, 2 Bing. N. C. 744. (a) The cases are all collected in 1 Smith's L. C. 133, note to Birkmyr v. Darnell ; see Wain v. Warlters, 5 East, 10, and Saunders v. Wakefield, 4 B. & A. 596, which are usually cited in support of this proposition. The point, however, was, in effect, decided previously in Rann v. Hughes, 7 T. R. 350; but that case, |