to a fellow workman by employing a dangerous explosive, it was held that the negligence of the superintendent was the negligence of the employer. (cg) An employee injured by negligence of a fellow employee, claimed that this person was notoriously negligent and incompetent; but, as it appeared that having this knowledge he continued in this employment, it was held that he took the risk on himself, and the employer was not liable. (ch) (x)

The master is under no legal obligation to give a testimo* 44 nial * of character to his servant. If he does, it will be presumed that he speaks the truth, or what he believes to be true; and therefore if he says what injures the standing and prospects of the servant, and this turns out not to be true, the master is nevertheless not liable, unless the servant can prove that the falsity was uttered in malice. (d) Such is the English rule; but it may be supposed that in this country, if the master is proved to have said what is untrue, he would be responsible for any injury arising therefrom to the servant; at least unless he could satisfy the jury that he spoke from sufficient cause, and not from malice.

In order to constitute a contract of hiring and service, there must be a mutual engagement, on the one part to serve, and on the other to employ and pay. (e) (y) But these engagements cannot always be implied one from the other, or measured one by the other. If a servant agrees to serve for a term of two years, and the master only agrees to pay so much weekly, the master is under no obligation to keep or employ him during the two years, but only to pay so much while he does employ him. (ƒ)

(cg) Lalor v. C. B. &c. R. Co., 52 Ill. 401; Spelman v. Fisher Iron Co., 56 Barb. 151; Louisville, &c. R. R. Co. v. Filbern, 6 Bush, 574.

(ch) Davis v. Detroit, &c. R. R. Co., 20 Mich. 105.

(d) Rogers v. Clifton, 3 B. & P. 591; Edmonson v. Stephenson, Bull N. P. 8; Weatherston v. Hawkins, 1 T. R. 110.

(e) See Sykes v. Dixon, 9 A. & E. 693, where B. contracted in writing to work for the plaintiff in his trade, and for no other person, during twelve months, and on from twelve months to twelve

80

months, until B. should give notice of quitting. Held, that such agreement was invalid under the Statute of Frauds for want of mutuality.

(ƒ) In Williamson v. Taylor, 5 Q. B. 175, by an agreement between the defendant and plaintiff, the defendant, being the owner of a colliery, retained and hired the plaintiff to hew, work, &c., at the colliery, for wages at certain rates in proportion to the work done, payable once a fort night; and the plaintiff agreed to continue the defendant's servant during all times the pit should be laid off work, and,

him or to give him work, it does not necessarily imply that the master is bound to supply the servant with any particular work during the agreed time of the relationship. Whitwood Chemical Co. v. Hardman, [1891] 2 Ch. 416, 419; Turner v. Sawdon & Co., [1901] 2 K. B. 653.

But where the contracts are mutual, and cover the same ground, for both parties, then the master has at once a right

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to require the servant to enter upon the discharge of his duty during the term, and the servant has a right to require the master to employ him during the whole of the term.

Like other agreements, a contract for labor and service, if not to be performed within a year, is within the Statute of Frauds, and if by parol, is wholly void. (g) And if the contract of service is begun within a year from the making of it, but by the terms of the agreement is not to be completed within that time, it is within the statute and void. (h) It must be certain, however, from the terms of the contract, or be necessarily implied therefrom, that the contract cannot be performed within a year, or it will not be void. (i)1 (x) This subject will be, however, * concon- * 46 Sayles, 5 Q. B. 685; Pilkington v. Scott, 15 M. & W. 657; Elderton v. Emmens, 6 C. B. 160; Rust v. Nottidge, 16 E. L. & E. 170, s. c. 1 E. & B. 99; Regina v. Welch, 20 E. L. & E. 82, s. c. 2 E. & B. 357.

when required (except when prevented by unavoidable cause), to do a full day's work on every working day. Held, that the defendant was not obliged by this contract to employ the plaintiff at reasonable times for a reasonable number of working days during the term. In Aspdin v. Austin, 5 Q. B. 671, by an agreement between the plaintiff and defendant, the plaintiff agreed to manufacture cement for the defendant, and the defendant, on condition of the plaintiff's performing such engagement, promised to pay him £4 weekly during the two years following the date of the agreement, and £5 weekly during the year next following, and also to receive him into partnership as a manufacturer of cement at the expiration of three years; and the plaintiff engaged to instruct the defendant in the art of manu

facturing cement. Each party bound himself in a penal sum to fulfil the agreement. The defendant afterwards covenanted by deed for the performance of the agreement on his part. Held, that the stipulations in the agreement did not raise an implied covenant that the defendant should employ the plaintiff in the business for three or two years, though the defendant was bound by the express words to pay the plaintiff the stipulated wages during those periods respectively, if the plaintiff performed, or was ready to perform, the condition precedent on his part. See Dunn v.

(g) Bracegirdle v. Heald, 1 B. & Ald. 722. In this case the contract was by parol on the 27th of May, for a year's service from the 30th of June following, and was held void. See also Snelling v. Lord Huntingfield, 1 C. M. & R. 20; Hinckley v. Southgate, 11 Vt. 458; Tuttle v. Swett, 31 Me. 555; Oddy v. James, 48 N. Y. 685; Sutcliffe v. Atlantic Mills, 13 R. I. 480.

(h) Id.; and see Pitcher v. Wilson, 5 Mo. 46; Drummond v. Burrell, 13 Wend. 307; Squire v. Whipple, 1 Vt. 69; Birch ». Earl of Liverpool, 9 B. & C. 392.

(i) A parol agreement to labor for a company "for the term of five years, or so long as A. shall continue to be agent of the company," is not void under the statute, as it might have been completed within a year, although in some contingencies it might extend beyond a year. Roberts v. Rockbottom Company, 7 Met. 47. This construction of the statute is supported also by the cases of Kent v. Kent, 18 Pick. 569; Peters v. Westborough, 19 Pick. 364; Wells v. Horton, 4 Bing. 40. In Broadwell v. Getman, 2 Denio, 87, it was held, that a parol agreement which is not wholly to be performed within one year, is void, though some of the stipulations

1 It was said in Cawthorne v. Cordrey, 13 C. B. N. s. 406, that a contract to serve for one year, to begin the day after the contract was entered into, was not within the

(x) A hiring contract for a year from the next day after its date is "not to be performed within a year," under the Statute of Frauds. Dollar v. Parkington, 84

L. T. 470. The written memorandum required by that.statute must show when the service is to begin. In re Alexander's Timber Co., 70 L. J. Ch. 767.

sidered more fully in the second part of this work, in the chapter upon the Statute of Frauds.

A nice distinction is taken in some cases between the presumptions which arise where service is rendered to a stranger, and where it is rendered to near relations. In general, wherever service is rendered and received, a contract of hiring, or an obligation to pay will be presumed. (j) But it is said not to be so

Statute of Frauds on the ground that the law excluded fractions of a day from the computation. This dictum was followed by a decision in Dickson v. Frisbee, 52 Ala. In Britain v. Rossiter, 11 Q. B. D. 123, the court held that such a contract made Saturday for a year beginning the following Monday was within the statute, and in referring to the dictum in Cawthorne v. Cordrey, Brett, L. J., said: "This view was founded upon a fiction, namely, that the law does not take notice of part of a day. I am not prepared to say, that under like circumstances one might not follow that dictum and carry it to the length of a decision." In Billington v. Cahill, 51 Hun, 132, the dictum in Cawthorne v. Cordrey was disapproved and a decision made at variance with it, Martin, J., saying, "It is not apparent to us how it can be fairly held that a contract for a full year's service can be performed within one year from the making thereof, when it was made on a day previous to the commencement of the year.” — W.

where the service is rendered to the parent or uncle, or other near relative of the party, on the ground, that the law regards such services as acts of gratuitous kindness and affection. We find American authorities which recognize this distinction, and particularly where it grows out of the relation of parent * and * 47 child. (k) But if a destitute person is received from charity,

1 It is now well settled that services to one's family give rise to no inference that payment was to be made for them, and there can be no recovery on an implied contract. It has been so held where a daughter after becoming of age continued to do work in

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provided with necessaries and set to work, he is under no 48 obligation to remain, nor has he any claim for wages, unless there be some express agreement, or one may be implied from the peculiar circumstances of the case.

A person who seduces a servant away from the service of his master or employer, is liable in an action for damages. Although this principle has been less positively settled by adjudication in this country than in England, we have no doubt of it as a rule of law. (1) (x)

that a legacy left by a debtor to his creditor, which in amount is equal to or greater than the debt, shall be presumed to be in satisfaction of it.

(7) Lumley v. Gye, 20 E. L. & E. 168; s. c. 2 E. & B. 216; Keane v. Boycott, 2 H. Bl. 511; Hart v. Aldridge, Cowp. 54; Bowen v. Hall, 6 Q. B. D. 333; Jones v. Blocker, 43 Ga. 331; Dickson v. Dickson, 33 La. An. 1261; Bixby v. Dunlap, 50 N. H. 256; Haskins v. Royster, 70 N. C. 601. See also Peters v. Lord, 18 Conn.

337; Haight v. Badgeley, 15 Barb. 499; Walker v. Cronin, 107 Mass. 555; Jones v. Stanley, 76 N. C. 355. This doctrine was held at nisi prius by Morton, J., in an interesting case in Massachusetts, a few years since. So one is liable for continuing to employ the servant of another, after notice, although the defendant did not himself procure the servant to leave his former master, or know when he employed him that he was the servant of another. Blake v. Lanyon, 6 T. R. 221. Although

her father's or mother's family. McGarvy v. Roods, 73 Iowa, 363; Smith v. Smith's Adm., 30 N. J. Eq. 564; Harshberger's Adm. v. Alger, 31 Gratt. 52. Or a son for his father, Zimmerman v. Zimmerman, 129 Pa. 229. Ör a grandson for his grandfather, Moyer's Appeal, 112 Pa. 290. Or a son-in-law for his father or mother in law, Coe v. Wager, 42 Mich. 49; Bonney v. Haydock, 40 N. J. Eq. 513; Sawyer v. Hebard's Est., 58 Vt. 375. Or a niece for her uncle, Wall's Appeal, 111 Pa. 460. The rule is based not simply on the relationship between the parties, but on the fact that the claimant while rendering the services was a member of the family of the person to whom services were rendered, and it has been accordingly held that except by express contract stepchildren cannot recover for services rendered to a stepfather who had taken them into his family, Gerdes v. Weiser, 54 Iowa, 591, 593; Brown's Appeal, 112 Penn. St. 18. Nor a girl taken from a charitable institution for services rendered to one who had taken her into his family and boarded, clothed, and educated her, Wright v. McLarinan, 92 Ind. 103. Nor a father for services rendered a son in whose family he was living, Bostwick v. Bostwick's Est., 71 Wis. 273. Nevertheless the question is always a question of fact, and all the circumstances of each case may be looked at in order to find the intention of the parties. In Curry v. Curry, 114 Penn. St. 367, 371, it was said: "In all cases except that of parent and child there must be evidence beyond the relationship, that the creation of no debt was intended. Where the parties are brother and sister, the sister claiming compensation for her services, the burden of showing family relationship or other cause, to exclude the implication of his promise to pay for the services, is upon the brother. Because of the fact that they are brother and sister less evidence besides would be required to establish that they lived together as a family, than if they were strangers. If he shows that they so lived, the jury ought not to find an implied promise." If there is an express contract, of course, in any case an action upon it may be maintained. Price v. Jones, 105 Ind. 543; Collier v. French, 64 Iowa, 577; Chadwick v. Devore, 69 Iowa, 637; Howard v. Rynearson, 50 Mich. 307. But to prove an express contract to pay for services rendered by a son to a father, such as filial duty and common humanity required, loose declarations of gratitude and of an intention to compensate are insufficient. Zimmerman v. Zimmerman, 129 Pa. 229. See also as to the necessity of clear and convincing evidence in such cases, Burgess v. Burgess, 109 Penn. St. 312; Geary v. Geary, 67 Wis. 248; Bostwick v. Bostwick's Est., 71 Wis. 273. W.

(x) Inducing workmen, customers, or unless justified, to be an actionable wrong, subscribers to break their contract appears, whether the inducement be by false slan