SMITH 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. [ *282 ] 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 (3) 2 East, 145. [ *283 ] 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." [ *284 ] 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 ANNUITY. See Limitations, Statute of, 4. APOTHECARY. See Medical Practitioner. 161 ARBITRATION-1. Award, action to set aside-Statement of fact 354 2. Finality-Arbitrator "having heard the proofs and 4. . 614 3. 5. . 533 . 527 7.- Pleading Necessity of pleading that matter was one AUCTIONEER-Agency of Whether an auctioneer be the agent case. BANKRUPTCY-1. Mutual credit-Set-off-Surplus produced by 2. Property of bankrupt-Reputed ownership-Ship being 3. Protected payment - Giving cash for bank post bill 395 282 - 4. Payment by certificated bankrupt under protest- BANKRUPTCY-5. “ Becoming insolvent." See Contract. - BILL OF EXCHANGE AND PROMISSORY NOTE-1. Accom- - 493 2. Indorsement-Bill to order-Transfer by delivery without 3. 808 indorsee-Negligence. Goodman v. Harvey 4. Foreign bill-Notice of dishonour-Notice that bill has 5. Promissory note-Joint and several notes-Arrangement 6. 460 Note containing pledge of collateral security-Stamp 7. 480 Note stolen and payment obtained by payee's clerk- 8. Cheque-Conditional payment. See Payment. 617 BOND-Corrupt bargain-Apothecary-Apprenticeship-Attempt 621 CANAL-Statutory authority to borrow money-Mortgage of canal 706 CERTIORARI-1. As affecting Crown-Statutory restraint-Rule 2. Indictment, removal of Certiorari obtained by one of CHARITABLE TRUST-1. Gift over to "such charitable or other 188 2. Intention to purchase presentation to Christ's Hospital- 156 CHEQUE-Payment by. See Payment. 27 COMPANY-Railway Company-Contract by promoters-With- 265 |