stood by the parties to be an incident of the contract, the notice must, if given at all, be given so as to mature at the close of the current year.

Thus the effect of a clause requiring three months' notice on each side to determine a contract which, from its other provisions, appears to be for a year certain, is that the three months' notice must be given so as to mature at the end of the year. (a)

So a plea based on the theory that a notice is reasonable which determines the service before the end of a current year is no answer to a declaration which alleges the contract to be for one year from a certain date, and so on from year to year, to the end of each year commenced while the plaintiff should be so employed, reckoning each year to commence at the day named. (b)

(a) Forgan v. Burke (1861), 12 Ir. C.L. 495.

(b) In Williams v. Byrne (1837), 7 A. & E., 177. This case was evidently not present to the mind of Lord Coleridge when, in Lowe v. Walter (1892) 8 Times L.R. 358, he remarked (p. 359), that, as to the contention that the notice must expire at the end of the current year, no doubt that right existed, and there were very good reasons for it, as to yearly tenants of land; but that he was not aware that the same law existed as to servants. (See also p. 361). The Irish case last cited was called to his attention by counsel, but declared, without any reasons being assigned, not to be in point.

Other cases bearing upon the rule laid down in the text are the following: Davis v. Marshall (1861), 9 W.R. 520; 4 L.T.N.S. 216, where a verdict was allowed to stand by which a clerk was permitted to recover, on the ground that he had been dismissed without notice, an amount exceeding the wages for the residue of the year.

Foxall v. International, etc., Co. (1867), 16 L.T.N.S. 637. Byles, J., in the course of his charge to the jury said: Take the case of a clerk, a clerk in some very responsible position, who is employed at a salary of, say, £2,000 a year, is he to be dismissed, without any custom or agreement. at a quarter's notice? I do not decide it as a question of law; but I express an opinion of fact that the clerk could not be dismissed at such a notice; he would be entitled to his salary up to the end of the year."

Buckingham v. Surrey, etc., Canal Co. (1882) 46 L. T. N. S. 885. There the plaintiff was appointed consulting engineer to the defendant company under a resolution to the following effect : "Resolved that Mr. J. B. be appointed engineer to the company at a salary of £500 per annum." The Court held that, as no evidence was offered on behalf of the defendant of any custom to determine such a contract by notice, the trial judge was bound to direct the jury that the hiring was for a year certain. A motion for a new trial was therefore denied.

The more general principle that a hiring for a specific period is terminable only at the end of that period, is assumed to be the true one by Holroyd, J., in Rex v. Great Yarmouth (1816), 5 M. & S. 114 (p. 119), where the hiring was a monthly one.

12. Under what circumstances the inference that the notice must expire at the end of the current year is rebutted—(a) Generally— As already remarked (sec. 2, ante), the scope of an inquiry into the duration of a general hiring is not the same as the scope of an inquiry into the rights of the parties to terminate the relation. It is obvious, however, that the same evidence which goes to show that such a hiring was not for a year tends to establish the conclusion that the notice by which it is terminated need not mature at the end of the current year. In other words, once it is shown that the contract is only binding for some fraction of a year, the duty of the parties in regard to notice is defined by considering what shall be deemed reasonable notice, or what notice they are entitled to by virtue of a custom in the business. It will be unnecessary, therefore, in the present connection, to discuss at any length the cases in which the right to terminate by notice a hiring indefinite as to time is deduced from considerations identical with those which are deemed to rebut the presumption that the hiring was yearly.

Where a clerk hired at an annual salary accepts, on quitting the service, a month's salary in lieu of notice, and subsequently takes service again under the same employer on terms which such employer testifies to have been the same except as to salary, the jury is warranted in finding that the hiring is determinable at a month's notice. (a)

(b) Custom as a circumstance tending to rebut the inference.That the existence of a custom with reference to which the employer and employed may be presumed to have contracted will furnish a sufficient ground for a reading into a contract of general hiring an implied stipulation that either party may terminate it by notice is obvious upon general principles. (b)

(a) Fairman v. Oakford (1860), 5 H. & N. 635.

(b) See generally the opinion of Grove, J., in Buckingham v. Surrey, etc., Canal Co. (1882) 46 L.T. N.S. 885. When, however, the hiring is expressly for a term "certain a custom of the trade for a master or a servant to determine it at any time without notice is inadmissible to control the contract, etc: Peters v. Stavely (1866), 15 L.T. N.S. 275.

One eminent judge has gone to the length of declaring that the absence of evidence of a right under custom to terminate a hiring by notice maturing at some other time than the end of the year is, without more, sufficient to require the conclusion that the hiring was for a year certain. (a) But this is clearly putting the case too strongly, for the presumption of a yearly hiring is, as we have seen above, rebuttable by other evidence besides that of a custom. Such

a doctrine can be true, to the extent here declared, only in regard to employments to which, for some reason, the presumption of a yearly hiring does not apply. An example of such a case is furnished by Holcroft v. Barber (b) where Wightman, J., in an action for wrongful dismissal brought by one who alleged himself to be the editor of a newspaper, ruled that he might introduce testimony going to show that there was a custom for editors to be engaged for a year, unless there was an express stipulation to the contrary. But the jury found for the defendant on the ground that the plaintiff was not an editor. See, however, as to this case, sec. 4, ante.

Evidence of custom will not avail to disturb the general presumption that the hiring is for a year certain, unless it relates to "a general custom, of some reasonable antiquity, uniform, and sufficiently notorious and well understood that people would make their contracts on the supposition that it exists." (c)

The effect of a custom that a general hiring of a clerk in a given city, although it is a yearly hiring, may be terminated by a month's notice, is not overcome by a provision in the contract that the employers will make the clerk a donation at the end of the year, if he has done sufficient business to justify them in doing so. Such a provision clearly has no bearing upon the extent of the master's right to dismiss the servant. (d)

(a) Rule so laid down by Littledale, J., in Fawcett v. Cash (1834), 5 B. & Ad. 904.
(b) (1843), 1 C. & K. 4.

(c) Foxall v. International, etc., Co. (1867), 16 L.T.N.S. 637, per Byles, J.
(d) Parker v. Ibbetson (1858), 4 C.B.N.S. 346.

The result of connecting the general principle as to the effect of a custom with the rule of pleading that the proof of a contract subject to a certain qualification does not support a count which does not state such a qualification is that an indefinite hiring which by the custom of the business, is terminable by a three months' notice, cannot be declared upon as a contract to continue the servant in the employment for an entire year. (a)

Whether the existence of a custom fixing the period of notice has been established is a question for the jury (b), subject, of course, to the power of the court to declare the testimony offered to be insufficient to support the conclusion that there is such a custom. (c) Hence where the question is whether the editor of a new periodical can be dismissed before the end of the current year, and the evidence of the plaintiff's witnesses goes only to the extent of showing that usage had made such a hiring annual in the case of estab lished periodicals, it is properly left to the jury to say whether such a usage is applicable to a periodical like that for the management of which the editor was hired. In Baxter v. Nurse, (d) Cresswell J., in commenting on a contention of the plaintiff that by usage, a contract for the employment of an editor was a contract for a year, said:

"It cannot be contended that this was not a question for the jury. And it was certainly a fair observation by counsel, that all the instances that were proved had reference to the old and established works. In cases where a general rule with regard to questions of hiring has been established, it has been in conformity with some established usage to be gathered from evidence. That it is not a fixed rule, is clearly shown from the course taken at trials where the question as to the nature of a hiring arises-where evidence is always given by persons in the particular trade, or under circumstances similar to

(a) Metzner v. Bolton (1854), 9 Exch. 518. [The trial judge had ruled that the power to determine the contract, as it came by way of defeasance need not be noticed by the plaintiff]. See the remarks of Martin B. on this case in Wheeler v. Bavidge (1854), 9 Exch. 668.

(b) Foxall v. International, etc., Co (1867), 16 L. T. N. S 637. Parker v. Ibbetson (1858) 4 C.B.N.S. 346; Lowe v. Walter (1892) 8 Times L.R. 358.

(c) In Naylor v. Yearsley (1860) 2 F. & F. 41, the plaintiff called a witness to prove that it was customary to employ agents to canvas for advertisements, to be paid by a percentage on the advertisements received whenever they were actually inserted, and that it was considered that they were entitled to a month's notice; but Wightman, J., held such evidence not sufficient.

(d) (1844) 6 M. & G. 934.

those of the parties in the case; and then the jury are told that, unless there is something to distinguish the case before them from the usage that has been proved, the parties must be considered as dealing with reference to such usage. But the finding by the jury in such a case, in conformity with such general usage, cannot be considered as a rule of law."

But, as a custom, when proved, becomes part and parcel of a contract, and the question whether the terms of a written agreement may admit or must necessarily exclude a custom is one of law for the court, a jury exceeds its powers in finding that a custom which allows dismissal at six months' notice is excluded by a special provision in such an agreement which is not inconsistent with the application of that custom. (a)

-(c) Custom in the case of domestic servants.-The general principle as to the effect of a custom in qualifying the primâ facie meaning of a contract of general hiring is most frequently illustrated in the cases which apply the familiar rule that menial or domestic servants are subject to discharge at a month's notice, or upon payment of a month's wages.

"In the case of domestic servants the rule is well established that the contract may be determined by a month's notice or a month's wages." (b)

"The contract between the master and a domestic servant is a contract to serve for a year, the service to be determined by a month's warning, or by payment of a month's wages; subject to the implied condition that the servant will obey all lawful orders of the master." (c)

The presumption of the existence of a custom enabling the employer to terminate the service by a month's notice, does not arise except in the case of servants of this class. (d)

(a) Parker v. Ibbetson (1858), 4 C.B. N.S. 346.

(b) Fawcett v. Cash (1834) 5 B. & Ad. 904; 3 N. & M. 177, per Littledale, J. (c) Turner v. Mason (1845) 14 M. & W. 112, per Parke, B. To the same effect see the following cases: Foxall v. International, etc., Co. (1867) 16 L.T.N.S. 637 Smith v. Kingsford (1836) 3 Scott, 279; Fewings v. Tisdall (1847), 1 Exch. 295; Archard v. Horner (1828) 3 C. & P. 349. If a month's wages are paid the servant is entitled only to the money due for a calendar month, not to board wages: Gordon v. Potter (1859), 1 F. & F. 644.

(d) Broxham v. Wagstaffe (1741), 5 Jur. 845, per Parke, B. In Williams v. Byrne (1837), 7 A. & E. 177, Littledale, J., doubted whether, even in the case of a menial servant, it could, as matter of law, be implied that there was a power to determine the service at any time on a month's notice. In Beeston v. Collyer (1827), 4 Bing. 309, the judges were much influenced by the consideration that the position of the plaintiff was such as to exempt it from the operation of the rule applicable to domestic servants: " Persons in the position of the plaintiff (a clerk to an army agent) must be supposed to possess superior acquirements, and are entitled to more respect than to be turned off without any reason being assigned." (Park, J.) "It would indeed be extraordinary if a party in his station of life could be turned off at a moment's notice, like a cook or scullion." (Best, C.J.).