DISMISSAL OF SEIIVAXT. 203 



service wliicli requires the exercise of such skill, there is an implie;! 

 warranty on his part that he jwssesses the sJcill reqtmite to jjeiform the 

 task, and if he does not his employer may dismiss him before the expira- 

 tion of the period for which he was engaged, without incurring responsi- 

 bility) remarked m reference to Sjmiti v. Arnoft, " It appears to us that 

 there is no material difference between a servant who will not and a 

 servant who cannot perform the duty for which he was hired." FarkeJ. 

 laid down, in CalJoiv v. Brounclcer, that to justify a masfe?^ in dis^rmshuj 

 a yearly servant before the expiration of the year, there must be on tlie 

 part of the servant either moral misconduct, pecuniary or otherwise, 

 wilful disobedience, or habitual negligence ; aud^xr Lord Kenyan C.J., 

 in Robinson v. Hindman, that a servant being frequently absent when 

 his master wanted him, and often sleeping out at night, would warrant 

 an instant dismissal. Where, as in Specie v. Phillips, the defendant's 

 counsel offered to prove that the defendant had discharged the plaintiff 

 for drunkenness, it was decided by the Court of Exchequer that the 

 defendant could not give evidence, in mitigation of damages, of circum- 

 stances which if pleaded would have been a bar to the action, more 

 especially where money is paid into Court. 



Where an action was brought for a wrongful dismissal of a servant, 

 who was hired under a written agreement at a yearly salary, and a 

 custom to terminate the agreement at a month's notice was pleaded, 

 the jury found that the custom existed but did not apply to the special 

 terms of the contract (or, as Byles J. observed, " in effect found a 

 limited custom "), and it was held by the Court of Common Pleas that 

 it was for the Court to look at the contract, and to see if the custom as 

 found was excluded by it [ParJcer v. Ibbetsoyi). By the agreement here 

 the plaintiff was to serve the defendant as agent at a yearly salary, with 

 a proviso that the defendant would at the end of the year, if he found 

 the plaintiff' had done sufficient business, give him £30 more ; and the 

 Court considered that there was nothing in this agreement inconsistent 

 with a custom in the trade, to terminate the service by either party 

 giving the other a month's notice. And sembleper Willes J. : "A stipula- 

 tion for a do?iation to the servant at the end of the year, under certain 

 circumstances, contained in a written agreement for a yearly hiring, does 

 not exclude either party from setting up a custom to terminate the 

 agreement at a month's notice" (ib.) (27 L. J. C. P. 236). 



A contract for service for more tluin a year, but subject to determination 

 within the j^ear on a given event, is within the 4th section of the Statute 

 of Frauds, and must therefore be in writiny {Dobson v. Collis). The 

 Court thought that Birch v. Earl of Liverpool which is an authority to 

 show that a contract, which by its general terms is not to be performed 



