4 Esp. 47. It certainly is not in the power of arbitrators to fix the amount of what shall be paid to them without any control over it; that would be making them judges in their own cause. Fitzgerald v. Graves &c. 5 Taunt. 342, 1 Eng. Com. Law Rep. 128. If they award a particular sum to themselves for making the award, the court may properly enquire what is a reasonable sum to be paid them, and direct what they had awarded themselves to be reduced accordingly. Miller v. Robe &c. 3 Taunt. 460. This and other cases recognize that an arbitrator may demand a reasonable compensation for his trouble. If no directions are given respecting the costs of the award, they are to be paid by both parties equally. Grove v. Cox, 1 Taunt. 165. When it appears that the amount is reasonable, and that the whole of it has been paid by one party, he has been allowed to call on the other party for contribution. Hicks v. Richardson, 1 Bos. & Pul. 93; Swinford v. Burn, 1 Gow. 7, 5 Eng. Com. Law Rep. 440.

In none of the preceding cases was the action brought by the arbitrator; but it is admitted that such action may be maintained where there is an express promise. Hardres v. Prowd, Styles 465. An order of reference named two arbitrators and gave them power to nominate an umpire; which they did. The defendants had notice thereof and promised all three to pay them their fair and reasonable costs in consideration of their taking upon them the burden of the referThe three then agreed to act jointly; and the defendants promised them jointly to pay them costs. In an action brought by the arbitrators and umpire jointly, they recovered on this as a joint contract; the declaration averring a joint performance of the promise and an award by all that they should pay to all. Hoggins v. Gordon &c. 3 Adol. & El. N. S. 466, 43 Eng. Com. Law Rep. 466.

ence.

2. Where a servant contracts for a certain term, before the end of which he quits service, whether he has a right to compensation.

The English rule that a general hiring is a hiring for a year, is not confined to servants in husbandry, but extends also to domestic and other servants. Abbott, C. J., 2 C. & P. 510.

In New York the general practice in hiring labourers or artizans, is to hire them for 6 or 12 months, at so much per month; the farmer hires a man for 6 or 12 months, at monthly wages, and he takes his chance of the good with the bad months; the labour being worth to him more in summer than

in winter.

If the farmer has hired in the autumn, for 12 months, at monthly wages, Spencer, J. would not let the labourer quit his employ on the first of May, and sue for his wages and recover them; leaving the farmer the resort of a suit for damages. 12 Johns. 167. An action was brought by a party who had contracted to work 8 months, for which the defendant was to pay him $ 104, or $13 per month. This was treated as an entire contract of hiring for 8 months, and the action-brought before the expiration of the 8 monthswas deemed premature. Reab v. Moor, 19 Johns. 341. When the agreement was to work for the defendant one year, at $10 per month, and the servant worked 10 months, and then left the defendant's employment, saying he would work no more-there being a wanton desertion of the defendant's service without his fault-the servant could maintain no action, notwithstanding a subsequent offer by him to return. Lantry v. Parks, 8 Cow. 63.

Where the parties intended that one should serve the other for 10 months, and be paid 3 cents for each run of yarn spun by him as he was a noviciate in spinning, and would be more profitable to his employers in the latter part of his termit was considered that the contract was entire, and he could not sue until the 103 months had elapsed. McMillan v. Vanderlip, 12 Johns. 167. Spencer, J. adverted in this case to 1 Roll. Abr. 29, 1, 36, as a very bald case, and pronounced the case decided by Hale at Norfolk in 1662, (1 Com. Dig. Action, F.) a very unreasonable decision. The principle of McMillan v. Vanderlip was affirmed in Thorpe v. White &c. 13 Johns. 53.

3. Rule in England where the master dismisses for misconduct. Remedy of a clerk, servant or agent wrongfully dismissed.

In England, if a party hired for a certain time so conduct himself that he cannot give the consideration for his salary. the master is justified in dismissing him for misconduct, and in that case he cannot recover pro rata-he forfeits the current salary, even for the time during which he has served. Spain v. Arnott, 2 Stark. 256, 3 Eng. Com. Law Rep. 339: Pagani v. Gandolfi, 2 C. & P. 370; 12 Eng. Com. Law Rep. 177; Turner v. Robinson, 5 Barn. & Adol. 789, 27 Eng. Com. Law Rep.; Ridgway v. Hungerford Market, 4 Nev. & Man. 797, 3 Adol. & El. 171, 30 Eng. Com. Law Rep. 59; Arling v. Lomax, 28 Eng. Law & Eq. 543. The implied agreement is that if there be any moral misconduct, either

pecuniary or otherwise, wilful disobedience, or habitual neglect, the master shall be at liberty to part with the servant. Callo v. Brouncker, 4 C. & P. 518, 19 Eng. Com. Law Rep. 505. If there were disobedience or misconduct by the servant, known to the master at the time he discharges him, although he does not then insist on it as the precise ground of the discharge, he may afterwards justify such discharge by shewing that the fact existed and he knew it. S. C. It may be proper, or at least advisable, to shew that he knew the fact at the time the discharge took place. Cassons v. Skinner, 11 M. & W. 172, 3. But the master's motive is immaterial, if the law justified him in doing what he has done. Spotswood v. Barrow &c. 5 W. H. & G. 110.

In his note to Cutter v. Powell, 2 Smith's L. C. 20, Mr. Smith states as the result of the authorities, "that a clerk, servant or agent, wrongfully dismissed, has his election of three remedies, viz: that "1. he may bring a special action for his master's breach of contract in dismissing him, and this remedy he may pursue immediately;" "2. he may wait till the termination of the period for which he was hired, and may then perhaps sue for his whole wages in indebitatus assumpsit, relying on the doctrine of constructive service, Gandell v. Portigny, 4 Camp. 375;" "3. he may treat the contract as rescinded, and may immediately sue on a quantum meruit for the work he actually performed, Planché v. Colburn, 8 Bingh. 14."

Mr. Smith has very properly expressed himself with hesitation as to the second of the above propositions; it is at least a doubtful point. 15 Adol. & El. N. S. 582. 15 Adol. & El. N. S. 582. Erle, J. thinks the servant cannot wait till the expiration of the period for which he was hired and then sue for his whole wages on the ground of a constructive service after dismissal. Id. 583. He may treat the contract as subsisting, sue on it, and recover damages for the breach of it; or he may treat it as rescinded, bring indebitatus assumpsit, and recover pro rata on a quantum meruit. But he cannot do both. When he has sued specially on the contract, and recovered damages for the wrongful dismissal, he cannot afterwards maintain an action on the quantum meruit for his actual service, treating it as a rescinded contract: the jury in assessing damages for the wrongful dismissal must take into the account the plaintiff's salary up to the time of the dismissal. Goodman v. Pocock, 15 Adol. & El. N. S. 576, 69 Eng. Com. Law Rep. 576.

4. Action by a seaman for wages; or by a ship-owner for freight.

Seamen are said to have a three-fold remedy for their wages, to wit; against the ship, the owners and the master. But the master is chargeable only on his special contract in hiring the seamen; the action against him arises solely from the obligation which he contracts by such hiring. The action against the owners arises from the implied contract which they are supposed to have made through their agent, the master. 1 Com. on Contr. 493, Pothier, Louage des Matelots, n. 226; Wysham v. Rossen, 11 Johns. 72.

The principle of McMillan v. Vanderlip, cited ante, p. 404, has been acted on in respect to seamen. The act of congress for the government of seamen in the merchants' service, enacts "that as soon as the voyage is ended, and the cargo or ballast be fully discharged at the last port of delivery, every seaman or mariner shall be entitled to the wages which shall be then due, according to his contract," &c. From this, as well as the reason and propriety of the thing, it is considered that the contract with a seaman continues in force until the cargo is finally discharged; and if he leaves the ship without justifiable cause, before that is accomplished, he can recover no part of his wages. S. C.; Webb v. Duckingfield, 13 Johns. 390.

There are reciprocal duties between masters and servants : from the servant is due obedience and respect; from the master, protection and good treatment. Voluntary desertion is a forfeiture of wages; but if the captain conducts himself in such a way as puts the sailor into that situation that he cannot, without danger to his personal safety, continue in the service, he is justified in providing for that safety; and his leaving the ship under such circumstances, will be no bar to an action for the services that he has rendered. Limland v. Stephens, 3 Esp. 269; Rice v. The Polly &c. 2 Pet. Adm. Dec. 420; Ward v. Ames, 9 Johns. 138. A replication alleging that the plaintiff was punished with great, unreasonable, and unnecessary cruelty, and that he left the ship in order to escape a repetition thereof, has been deemed an answer to a plea of desertion in the sense in which it is used in the stat. 7 & 8 Vict., c. 112, § 9. Prince Edward v. Trevellick, 28 Eng. Law & Eq. 205.

A seaman disabled in the course of his duty, is entitled to wages for the whole voyage, though he had not performed the whole. Chandler v. Grieves, 2 H. Bl. 606, note. The

vessel may be captured in the course of the voyage, yet if she be afterwards retaken and carried into her port of destination and there discharges her cargo, the ship-owner will be entitled to freight and a seaman to wages, unless it be shewn that his conduct amounted to desertion of the vessel and consequent forfeiture of wages. Bergstrom v. Mills, 3 Esp. 36; Brooks v. Dorr &c. 2 Mass. 39.

The supreme court of Massachusetts was not entirely accurate when it said that "upon the capture of a ship, the relation between the owners and the master and crew ceases." Lemon v. Walker &c. 9 Mass. 404. Admitting that capture, followed up by condemnation, would extinguish such contract, still such effect cannot be attributed to a capture, when there has been a re-capture or restitution. The Saratoga, 2 Gall. 176. The mariner has a right to remain by the ship and wait the event; if the ship be restored, he is entitled to his wages if she proceed and earn a freight, S. C. 177; Emerson v. Howland &c. 1 Mason 50; Willard &c. v. Dorr, 3 Id. 165; Spafford v. Dodge &c. 14 Mass. 78; but not otherwise, Murray &c. v. Kellogg, 9 Johns. 227.

The owners recover no freight nor the mariners wages when, without fraud or improper conduct in the master or owners, the voyage is lost, by the fact of the condemnation of the vessel, Icard v. Goold, 11 Johns. 279; or by the fact that the further prosecution of the voyage has, when the vessel is restored, become illegal because of the existence of war, The Saratoga, 2 Gall. 180.

To make it the interest of the sailors not to desert the ship in case of danger, but to endeavour to preserve it, so that the voyage may be performed, the right to wages, like that to freight, depends on such performance. 1 Sid. 179; 3 Esp. 137; Dunnett v. Tomhagen, 3 Johns. 154.

When a ship is driven on shore, it is the duty of the master either to repair his ship or to procure another, and having performed his voyage, he is then entitled to his freight but he is not entitled to the whole freight unless he perform the whole voyage, except in cases where the owner of the goods prevents him; nor is he entitled pro rata, unless under a new agreement. Lawrence, J. in Cook v. Jennings, 7 T. R. 381. Here by the original agreement, the defendant only engaged to pay in the event of the ship's arrival at Liverpool; this event not having happened, the plaintiff failed in his action on that agreement.

Many cases have been decided on this principle—the principle that when parties have entered into a special contract by which freight is made payable in one event only, that of a