the trial it was objected that the plaintiff could not recover for several different reasons; first, that the defendants stood as indorsers of the bill, and that as indorsers they had a right to insist on proof of the notice of non-payment, both by the drawer and acceptor. On the other hand it was urged, and, as we think, justly, that this was a general guarantee for payment of a bill; not, as usual, a guarantee that the acceptor should pay, but a contract that either the one or the other should pay; and the consequence is, that if the guarantee paid the bill, he would have a right to come both on the drawer and acceptor for re-payment; and though want of notice would not discharge the acceptor, yet the guarantee, as the holder, had a right to insist on due notice being given to himself of non-payment by the acceptor; and that as to the drawers he had right to insist on notice being given to them of the same fact, for that otherwise he might pay it in his own wrong if they were discharged."

But in the case of Holbrow v. Wilkins, (b) where the plaintiffs sold goods to C. and P., and took their acceptance for the amount, half of which was guaranteed by the defendant. Before the bill became due C. and P. became insolvent, of which the defendant was then informed, and also that the plaintiffs looked to him for the sum which he had guaranteed: the Court of King's Bench determined, that, under these circumstances, it was unnecessary for the plaintiffs to present the bill when due, or give the defendant notice of the non-payment of it. Abbott Ch. J. said, "This case differs very materially from that of Philips v. Astling : the insolvency there did not happen until after the bill became due: but in the present case, the defendant had notice long prior to the bill becoming due that C. and P. were insolvent, and that the plaintiffs would look to him for payment."

(b) 1 Barn. & Cres. 10.

CHAPTER III.

OF CONTRACTS FOR SERVICES AND WORKS: AND OF THE STATUTE OF FRAUDS RELATING TO AN UNDERTAKING WHICH CANNOT BE PERFORMED WITHIN A YEAR.

IF

F a person is employed to do or transact any business or employment for another, and it is expressly agreed between the parties that it shall be completed for a particular sum of money; and the work is finished accordingly, an action of indebitatus assumpsit will lie for the money so agreed to be given: but if no express agreement be entered into, as to the sum to be paid, the law will imply that the employer undertook or assumed to pay the person employed so much as his labour reasonably deserved; and upon this implied promise an action of assumpsit on a quantum meruit will lie. So, where a person is employed to do or perform some particular work, or professional business for hire, the law implies, that the person so engaged not only undertakes to do the work, &c. but also to use all due diligence, skill, and attention in the execution thereof; so that if he either refuses to do or complete the work, or does it in an unskilful and improper manner, he will be liable to an action of assumpsit, at the suit of the employer, for the amount of the damages which he may sustain in consequence thereof. And, when one man engages either to serve or employ another for hire, but afterwards refuses so to do, he is liable to the same kind of action.

But where an agreement is made for any work or service, and it is either expressly agreed, or by necessary implication understood, that the party shall have more than a year to perform it, such agreement must be reduced into writing; for by the last branch of the 4th clause of the statute it is enacted, "That no action shall be brought to charge any person upon any agreement 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 thereunto by him lawfully authorised."

Now upon this clause of the statute it has been holden, that if no time be stipulated for the performance of the agreement, and it is capable of being performed within a year from the making thereof, it is not within the statute, though it be not actually performed till after that period. Thus, where a parol promise was made to pay so much money upon the return of such a ship, which ship happened not to return within two years' time after the making of the promise: It was made a question before all the judges whether this promise was void by the statute of frauds. They were of opinion that it was a good promise, and not within the fourth clause of the statute, for that by possibility the ship might have returned within a year; and though by accident it happened not to have returned so soon, yet, they said, that clause of the statute extends only to such promises, where, by the express appointment of the party, the thing is not to be performed within a year. (a)

So, in the case of Peter v. Compton, (b) which was an action upon a parol agreement, by which the defendant promised, in consideration of one guinea, to give the plaintiff so many on the day of his marriage.— And the question upon the trial, before Holt Ch. J., was whether such agreement ought to be in writing, for the marriage did not happen within a year the Chief Justice advised with all the judges, and by the great opinion (for there was a diversity of opinion, and his own was é contra) where the agreement is to be performed upon a contingency, and it does not appear in the agreement, that it is to be performed after the year, there a note in writing is not necessary, for the contingency might happen within the year; but where it appears by the whole tenor of the agreement, that it is to be performed after the year, there a note is necessary; otherwise not.

So, in the case of Fenton v. Emblers, executor of May, (c) where the promise was stated in the declaration thus: "That William May, the defendant's testator, in consideration that the said Sarah (the plaintiff) would be and become the housekeeper and servant of the said William, and take upon herself the care and management of his family, &c., and perform the same as long as it should please the said William and Sarah, undertook and promised to pay wages to the said Sarah, at and after the rate of 61. for one year; and also by his last will and testament, to give and bequeath to the said Sarah a legacy or annuity of 161. by the year, to be paid to her yearly, &c.; and that the said Sarah, confiding in the said promise, entered into the said testator's service, and became his housekeeper, &c. and continued so for three years and 59 days; but that the said William had not per

(a) Anonymous Case, 1 Salk. 280.

(6) Skin. 355. Holt. 326. S. C. See also Comb. 463. Skin. 326. S. P.

(c) 3 Bur. 1278. 1 Bl. Rep. 353. S. C.

formed his said agreement, and did not leave her such legacy or annuity, &c. And it appeared upon the evidence that there was such an agreement between the said William May and the plaintiff, but that it was by parol, and not in writing. It appeared also, that the plaintiff did enter into the testator's service, and continued in such service till his decease; but that the testator did not give her by his last will or otherwise, the said annuity of 161. per annum, or any other annuity. An objection was taken upon the fourth section of the statute of frauds, that the agreement was not to be performed within the year. But Dennison Just., and the rest of the Court, were of opinion, "that the statute of frauds plainly means an agreement not to be performed within the space of a year, and expressly and specifically so agreed. That a contingency was not within it; nor any case that depended upon a contingency; and that it did not extend to cases where the thing only might be performed within the year."

An agreement, however, which is in all events to remain unperformed for more than a year, is within the statute; and no parol evidence can be given to connect the signature of a subscription to a literary work with the prospectus, so as to take the case out of the statute. Thus, in the case of Boydell v. Drummond, (d) which was an action for not accepting certain numbers of a series of large prints from Shakspeare's plays, which had been published by the plaintiff and his late partner Alderman Boydell. At the trial, it appeared, that the first prospectus of the work was published in 1786, and a second prospectus in 1787. On the 1st of May 1789, the Shakspeare gallery was opened in Pall Mall, with an exhibition of 34 large pictures then finished; and in March 1790, an additional number were exhibited, amounting in all to 56; and also specimens of the prints in a state nearly ready for publication. In April 1790, the defendant became a subscriber to the large prints (a splendid edition of the letter-press of the plays, and a series of small prints to bind up with it, forming a distinct part of the proposed plan of publication). The defendant's subscription was No. 1103, the whole number of subscribers at the close having been 1384. At the time of his subscription, the defendant paid his two guineas in advance, and had a receipt given him for the same. The delivery of the first number was made in June 1791, when it was delivered to the defendant's order, who thereupon paid the third guinea, and two more in advance for the next number. The second number was delivered to the defendant on the 29th of March 1792, was advertised as before, and the defendant also sent for that, and paid his three guineas, two of them in advance for the third number as before. These numbers were delivered out at the gallery in Pall Mall, being the place where the defendant had subscribed. Others were delivered

(d) 11 East Rep. 142.

out to other subscribers at Messrs. Boydell's shop in the city. After this time, at least one number was delivered to the subscribers in general in every year, sometimes two, and in two instances three within a year, until the whole were completed; but the defendant never sent for any more of the numbers, though he never gave notice of his intention to discontinue taking them in. Nor did the plaintiff ever make any particular demand on the defendant to take the remaining numbers and pay for them till 1807, after the whole work was completed and published; but the rest of the numbers as they came out were regularly laid by for him according to the order of time of his subscription. The last number was published in 1803, and the number of prints finally delivered to the subscribers, who sent for them, was 12 more than the stipulated number. One of the conditions of the prospectus was, " that one number at least should be published annually; and the proprietors were confident they should be enabled to produce two numbers within the course of every year." Printed copies of the two prospectuses were lying about the shop for public inspection at the time of the defendant's subscription, and the general practice was to deliver them to subscribers at the time of their subscription. But the book in which he subscribed his name had only for its title" Shakspeare subscribers, their signatures," without any reference to either prospectus in the terms of it. After the whole work was completed and published, an application was made to the defendant in August 1806, and again in March 1807, to take and pay for the remaining numbers of his subscription; to which latter, he returned an answer in writing, dated 1st of April 1807, in which he stated, that he ceased taking in the numbers of the Boydell Shakspeare many years ago, in consequence of the engagement not being fulfilled on the part of the proprietors; and not having been applied to from that time till very lately, he did not consider himself called upon to complete the set. The receipt for the defendant's subscription was in this form: "Received from J. Drummond Esquire one guinea, as the second subscription to the first number of the Shakspeare with large plates; and at the same time received two guineas as the first subscription to the second number, agreeably to the original proposals. (Signed for the plaintiffs.)" The Court, after argument, were of opinion that this case was within the statute. And Lord Ellenborough Ch. J. said, "We are all clearly of opinion that this was not a contract which was to be performed within a year, and ought therefore to have been evidenced by writing signed, as required by the statute of frauds. The whole scope of the undertaking shows that it was not to be performed within a year; and if, contrary to all physical probability, it could have been performed within that time, yet the whole work could not have been obtruded upon the subscribers at once, so as to have entitled the publishers to demand payment of the whole subscription from them within the year. It has been argued that