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SMITH

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tea-spoons belonging to the defendant were missed, and, in KINGSFORD. Consequence of what had occurred on the previous evening, the plaintiff was suspected of having stolen them or been accessory to the theft, and was taken before a magistrate, who remanded her for a further examination. After being detained in the house of correction for five days, the plaintiff was (on the 20th January) again brought up and discharged. The plaintiff on the 22nd demanded of the defendant 21. 2s. for two months' wages, and 11. 18. in lieu of a month's warning: the defendant tendered the 21. 2s., but refused to accede to the latter demand; whereupon the plaintiff brought this action. The plaintiff's clothes were taken away by her on the 22nd January.

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On the part of the defendant it was contended that she was under the circumstances justified in dismissing the plaintiff without warning; and that the common count for work and labour was insufficient to cover the plaintiff's claim for the period during which no service had been performed: Archard v. Horner (1), where it was ruled by Lord TENTERDEN, that, if the contract between master and servant be the usual one for a year, determinable at a month, the servant, if turned away improperly, cannot recover on a count stating the contract to have been for an entire year; and that he cannot, on the common count for wages, recover for any further period than that during which he had served.

A verdict having been found for the defendant on the issue on the second plea, and for the plaintiff on the first and third, damages 17. 18.,

C. Jones, on a former day in this Term (pursuant to leave), obtained a rule nisi that the general verdict might be entered for the defendant, or that a new trial might be had.

Byles shewed cause:

It stands admitted upon the record that the plaintiff entered the defendant's service under a yearly hiring; and it appeared from the evidence that the service commenced on the 19th November, 1835, and was not finally interrupted until the (1) 3 C. & P. 439.

SMITH ፖ.

22nd January, 1836-for, the placing her in custody under a charge that was afterwards abandoned, was not a dissolution of KINGSFORD. the contract of hiring. Although, therefore, it is true, that, where the plaintiff claims a compensation for constructive work and labour only, the common count is inapplicable, but, there being no actual service, the declaration must be special: yet here, inasmuch as there has been an actual service for three or four days of the third month, the whole may be recovered under the common count. If it were otherwise, a servant who is absent for a short period on account of sickness, or having a holiday, would be disabled from recovering wages on the common count, by reason of this partial interruption of the actual service. In Gandall v. Pontigny (1), A., being employed by B. as a clerk at a salary of 2001. per annum, payable quarterly, was discharged in the middle of a quarter, and paid proportionably; and Lord ELLENBOROUGH held that he was entitled to recover his salary for the remainder of the quarter under the general count for work and labour. That case was recognised and acted upon by this Court in *Collins v. Price (2). There, the plaintiff kept a day school at which the defendant's daughter was the only boarder. At the end of the first quarter the plaintiff's charge for schooling was sent to the defendant and discharged. Four days after the commencement of the second quarter, the child was taken ill and sent home, and did not return to school again. It was held that the defendant was liable for the whole quarter, although there was no express contract for a quarter's notice previously to the removal of the child. And PARK, J., commenting upon Gandall v. Pontigny, says: "It was contended for the defendant that the plaintiff was not entitled to recover on the general count for work and labour, since none had been performed subsequently to the period of the discharge, and that, up to that time, the plaintiff had been paid, and the case of Hulle v. Heightman (3), was cited, and it was urged that the plaintiff ought to have declared specially on the contract: but Lord

(1) 1 Stark. 198; 4 Camp. 375.

(2) 30 R. R. 542 (5 Bing. 132; 2 Moore & Payne, 233). And see Beeston v. Collyer, 29 R. R. 576

(4 Bing. 309; 12 Moore, 552; 2
C. & P. 607).

(3) 2 East, 145.

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SMITH

v.

ELLENBOROUGH said, 'If he has done work for any part of the KINGSFORD. quarter, it is done for the whole. This is an objection of a strict nature, and since no dissolution of the contract has been proved, the plaintiff is entitled to recover for the remainder of the quarter.' That appears to us to be expressly applicable to this case."

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C. Jones, in support of his rule:

After the 15th January there was no service either actual or constructive: the placing the plaintiff in custody on a charge of stealing was the strongest possible mode of putting an end to the relation of mistress and servant. The cases cited on the other side suppose the absence of misconduct in the servant, and no reasonable ground of dismissal.

(BOSANQUET, J.: The finding of the jury in this case negatives the *charge of misconduct: the dissolution of the contract must be assented to by both parties.)

The conduct of the plaintiff sufficiently shews her assent to the determination of the contract: she was discharged from custody on the 20th January, and did not return to the defendant's house until the 22nd. Archard v. Horner is a distinct authority to shew that the form of declaring adopted in this case is improper.

TINDAL, Ch. J.:

It appears to me that the mere causing the plaintiff to be sent to prison upon a charge that was subsequently abandoned, was not a dissolution of the contract of hiring. However little in degree the relation of mistress and servant between these parties may have been, still I think the plaintiff entitled to recover for the month.

PARK, J., concurred.

BOSANQUET, J.:

I am also of opinion that the contract in this case was not put an end to until the third month's service had been entered upon. The sending the plaintiff to prison was no more a putting an end to the contract than locking her up in a room of the house would have been. Rule discharged.

INDEX.

-

ACCUMULATION Thellusson Act - Portions-Limitation for
benefit of grandchildren-Period in excess of twenty-one years.
Shaw v. Rhodes

ANNUITY. See Limitations, Statute of, 4.

APOTHECARY. See Medical Practitioner.

161

ARBITRATION-1. Award, action to set aside-Statement of fact
by arbitrator-Grounds of decision. Lancaster v. Hemington

354

2. Finality-Arbitrator "having heard the proofs and
allegations of the parties touching the matters in difference between
them," awards "concerning the same" that defendant pay named
sum in full of all demands. Day v. Bonnin

4.

. 614

3.
Building contract-Award to be on alleged
defects in building and claims for extra work-Award of gross sum
to builder-No decision on alleged defects. In re Rider and Fisher 836
Some issues to be entered for plaintiff and others
for defendant-Costs-Intention of arbitrator. Allenby v. Proudlock 348
Uncertainty-Verdict directed for plaintiff-Sum
for which verdict to be entered not named. Mortin v. Burge

5.

. 533
6.
Umpire, choice of by tossing up-Subsequent acquies-
cence of parties. In re Jamieson and Binns

. 527

7.- Pleading Necessity of pleading that matter was one
in difference and within arbitrator's authority. Pascoe v. Pascoe 847

AUCTIONEER-Agency of Whether an auctioneer be the agent
of both purchaser and seller depends upon the facts of the particular
Bartlett v. Purnell
484

case.

BANKRUPTCY-1. Mutual credit-Set-off-Surplus produced by
sale of securities, whether bank can set off against promissory notes
discounted for debtor. Young v. The Bank of Bengal
8

2. Property of bankrupt-Reputed ownership-Ship being
built to order-Payment of instalments due in course of construction.
Clarke v. Spence

3. Protected payment - Giving cash for bank post bill
Notice of bankruptcy. Willis v. Bank of England.

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395

282

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4. Payment by certificated bankrupt under protest-
Recovery back of money paid. See Money Paid, 2,

BANKRUPTCY-5. “ Becoming insolvent." See Contract.

-

BILL OF EXCHANGE AND PROMISSORY NOTE-1. Accom-
modation bill Action by indorsee Plea of indorsement after
maturity-Onus of proof. Lewis v. Parker

-

493

2. Indorsement-Bill to order-Transfer by delivery without
indorsement. Cunliffe v. Whitehead .

3.

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808
Indorsee for value-Fraud of indorser-Good faith of
507

indorsee-Negligence. Goodman v. Harvey

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4. Foreign bill-Notice of dishonour-Notice that bill has
been protested-Copy of protest. Ibid.

5. Promissory note-Joint and several notes-Arrangement
with one of three joint makers-Erasure of name from note. Nicholson
v. Revill

6.

460

Note containing pledge of collateral security-Stamp
duty. Wise v. Charlton

7.

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480

Note stolen and payment obtained by payee's clerk-
Forged indorsement-Delay in notice to maker-Trover. Johnson v.
Windle

8. Cheque-Conditional payment. See Payment.

617

BOND-Corrupt bargain-Apothecary-Apprenticeship-Attempt
to evade full service as required by Act. Prole v. Wiggins

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621

CANAL-Statutory authority to borrow money-Mortgage of canal
and dues-Non-payment of interest-Action of covenant. Pontet v.
Basingstoke Canal Co.

706

CERTIORARI-1. As affecting Crown-Statutory restraint-Rule
that statute taking away certioruri does not bind the Crown unless
named, whether limited to cases where the Crown has an actual
interest, or extending to all prosecutions in name of the King.
R. v. Boultbee
. 412

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2. Indictment, removal of Certiorari obtained by one of
several defendants, whether removing indictment as to all. R. v.
Borall
420

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CHARITABLE TRUST-1. Gift over to "such charitable or other
purposes as testator's trustees should think fit-Indefinite trust-
Uncertainty. Ellis v. Selby

188

2. Intention to purchase presentation to Christ's Hospital-
Impossibility of carrying out intention-Insufficiency of residuary
estate-Cy près. Cherry v. Mott

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156
3. India, gifts to charities in-Observations on the proper
mode of dealing with gifts to foreign charities. Mayor of Lyons v.
East India Co.

CHEQUE-Payment by. See Payment.

27

COMPANY-Railway Company-Contract by promoters-With-
drawal of opposition to Bill by road trustees in consideration of
stipulations in agreement-Injunction. Edwards v. Grand Junction
Ry. Co.

265

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