5TH JUNE, 1862.

SHERIFF COURT, GLASGOW. (MR SHERIFF BELL.)

BUTLER & SMITH V. MOLYNEUX.

Process Evidence

-

- Productions.

pursuer's possession prior to raising an action, but not produced before the closing of the record (see Borthwick, 6th Dec., 1861), refused to be received afterwards. Process-Evidence-Parole proof-Oath of reference.An account sued for was found to be prescribed, and proof of the resting owing restricted to the writ or oath of the debtor. Hell, that as a reference to oath implied a judicial contract, and might exclude review; and as it was now competent to examine a party in a cause as a witness, it was not necessary to give in a minute of reference, and that the party should be examined as a witness. SEE Supra, page 23.

The pursuers now moved that they should be allowed to lodge in process four letters addressed by the defender to the pursuers. This motion was opposed by the defender on the ground that these letters had all along been in the pursuers' possession.

Parties' procurators having been heard for and against the motion, the Sheriff-Substitute pronounced the following Interlocutor:

Having heard parties' procurators on a motion for the pursuers that they be allowed to put into process four letters received by them from the defender previous to the institution of this action, and which have ever since been in their custody, for reasons stated in the annexed Note, refuses the

said motion.

NOTE. The letters which the pursuers wish now to be allowed to put into process are with the view of proving scripto the resting owing of the debt sued for. The pursuers were certiorated by the minute of defence both that the resting owing was denied, and that the defender pleaded prescription. After this minute had been lodged, both parties were allowed, of mutual consent, by the Interlocutor of 29th October last, six days to make productions, and the pursuers did make certain productions accordingly with a view to establish their claim, but withheld the letters now in question. By the 51st sec. of the Act of Sederunt of 11th June, 1839, it is made imperative on parties to produce with their pleadings, before the record is closed, "all writings in their custody or within their power not already produced on which they mean to found." And by the 56th sec. it is enacted that when the record has been closed "no new productions within the power of the party shall be allowed or received under the exception of res noviter veniens ad notitiam." It has been the invariable practice in this Court to give effect to these enactments, and to refuse to receive, unless of consent after the record has been closed, productions directly bearing on the grounds of action which have all along been in said parties' power. But it was argued for the pursuers that this practice should now be altered in virtue of the recent decision of the Court of Session in the case of Borthwick, 6th December, 1861. The Sheriff-Substitute has carefully considered that case, and finds nothing in it subversive of, or contrary to, the foresaid established practice. No doubt the Court there allowed certain documents recovered in modum probationis in the course of a proof on commission to be received into process. But the ground on which this was allowed by a majority of the Judges was, as the rubric bears, that the documents had not been, previous to the closing of the record, in the power of the party in the sense of the judicature act and relative Act of Sederunt. It is true that several of the Judges were of opinion that these acts, which contain enactments similar to the Sheriff Court Act of Sederunt, did not mean to exclude

Thereafter the pursuers further moved that they shoul be allowed to examine the defender as a witness in causa

to which motion the defender objected, and, after hearing, the Sheriff-Substitute pronounced the followin Interlocutor:

Having considered the motion made by the pursuers to allowed to examine the defender as a witness in causa, wi the defender's objections to said motion, Finds that, by t Sheriff-Depute's Interlocutor of 3d February last, the plea prescription was sustained, and the pursuers were restricted a proof of the resting owing of the account libelled only by writ or oath of the defender: Finds that all parole proof w thus excluded, and the defender is not bound to undergo s examination merely as a witness or otherwise than ur a reference to his oath, which implies a contract that his de sition shall be final as to the facts of the case: Finds that i 1839, that "in all cases where the oath of the party is provided by the 84th sec. of the Act of Sederunt, 11th J quired, the party by whom the reference or deference is m must either subscribe, along with his procurator, the paper which the requisition is made, or sign a separate writing that effect, to be produced along with the paper, or judici adhere to the reference in presence of the Sheriff:" Finds t the pursuers, not having complied with these provisions, not entitled to examine the defender in the manner propo and refuses the said motion.

Against both these Interlocutors the pursuer appeal and, after a hearing, the Sheriff (Sir Archibald Alis pronounced the following judgment:—

Having heard parties' procurators under the appeal for pursuers upon the Interlocutor of 17th April last, fia that the pursuers are not entitled to examine the defende a witness, in respect they had not lodged a minute of ence referring the causes to his oath: Finds that, under Act 1579, the pursuer of an action for payment of a prese account may still prove his case after the three years elapsed, but that he can only do so by "the writ or the debtor:" Finds that before the Evidence Act was pass was not competent to examine a party to a cause as a wi in causa at all, and therefore it was necessary, by the A Sederunt, 11th July, 1839, that where the oath of a was required, the party referring should lodge a minu reference, signed by him, referring the matter to hi ponent's oath: Finds that it is now competent, unde Evidence Act, to examine a defender on oath as a witne causa at the pursuer's instance, as allowed by the Act Finds that it is thus competent, in such a case as the pr for the pursuers to examine the defender as a witness izt without lodging a minute of reference of the whole ca his oath, although they must prove their case by the dere writ or oath, seeing, as has been already decided, 120 proof is competent: Finds that it is restricted to the fina regular review of the decision, pronounced in the c the Supreme Court, under an advocation thereof, t pursuers should be allowed to prove their case by the der's writ or oath as a witness in causa, without being to lodge a minute of reference, seeing if a reference cause is only made under a minute, and sustained

Court, it becomes a judicial contract to abide by what is sworn to in the oath, and it may be doubtful how far the Supreme Court could review the previous Interlocutors in the cause, or whether parole proof could thereafter be allowed, even although the higher Court should deem it competent, and, at all events, the pursuers have a right to avoid such doubtful questions: Therefore alters the Interlocutor of 17th April last, complained of, and finds it competent for the pursters to prove the resting owing of the account by the writ or oath of the defender as a witness, but by that mode and by that witness only without lodging a minute of reference of the cause to his oath, and remits to the Sheriff-Substitute to fix a diet for taking such proof accordingly, and do thereafter as to him shall seem just; and upon the appeal for the purFuers against the Interlocutor of 10th April last, refusing the pursuers' motion to be allowed still to lodge in process the four letters addressed to them by the defender, prior to the Institution of the action, and which have been all along in the pursuers' possession, adheres to the said Interlocutor for the reasons stated by the Sheriff-Substitute, as also those in the following Note, and dismisses the appeal.

NOTE-The present decision relates only to the mode of taking the defender's oath. The pursuers must equally, in the mode now allowed by the Sheriff, as under a regular minute of reference, prove their entire case in the absence of write by the defender's oath, that is the constitution as well as the rating owing of the account. On the other point of the pursuers' motion still to be allowed to produce the letters, the Sheriff is of the opinion that under the decision in the case of Borthwick, 6th December, 1861, production of documents within the power of a pursuer are competent though not produced before the record is closed, if they go to elide a defence, not to support the action; but no documents can be more justly held to be in support of an action than letters, which, being the defender's writ, and relating to the subject matter of the action, are founded on as implying an admission of the debt against which prescription was pleaded. Act. W. P. ALLARDICE.

Alt. ALEX. WATT.

5TH JUNE, 1862. COMMISSARIAT OF FORFARSHIRE. (MR J. GUTHRIE SMITH, Commissary-Depute.) Mrs KIRKALDY, or GRANT, and WILLIAM KIRKALDY, Competing.

Succesion-Next-of-Kin-Executor-Dunlop's Act18th Vict., c. 23.-A next-of-kin is entitled to the office of executor in preference to the father of a predeceasing daughter, who takes one-half of the succerisa under Dunlop's Act.

Is this case the administration of the estate of a Mrs Middleton, who died intestate, was claimed by her sister, Mr Kirkaldy or Grant, and also by Mr William Kirkady. Mr Kirkaldy contended that the proper person be appointed executor was the party having the beneficial interest, and, as he took one-half of the estate der 18th Vict., c. 23, he ought to be preferred to his ghter, the other claimant.

The Commissary-Depute issued the following Intertor, to which, on appeal, the Commissary, Mr Maitad Heriot, adhered:

The Commissary Depute, having heard parties' procurators, the two petitions: Finds that the petitioner, Mrs Pit Kirkaldy or Grant, is legally entitled to the office Castor, to the exclusion of the petitioner, William KirkTherefore decerns her executrix dative, qua next-of-kin, deceased Mrs Janet Kirkaldy or Middleton, and disthe petition of the said William Kirkaldy: Finds both entitled to their expenses out of the estate, subject to , and decerns.

NOTE.-This competition raises, for the first time, the important question whether a father, who comes in for one-half of the estate of a predeceasing son or daughter, in preference to brothers and sisters under 18th Vict., c. 23, sec. 3, has right to the office of executor exclusive of, or at all events along with, the next-of-kin. Mr Kirkaldy reads the statute thus:-"Where any person dying intestate shall predecease his father, without having lawful issue, his father shall have right to one-half of his moveable estate, (and the administration of the whole of it,) in preference to any brothers, or sisters, or their descendants." This is evidently too violent a rendering of the Act of Parliament. The next-of-kin have been entitled to the office of executor from the earliest times. In the Regiam Majestatem, 2, c. 38, it is said, "Gif he quha makes the testament nominates na man, the nearest of his kin in consanguinitie may offer themselves executors." The instructions to the Commissaries, ANNO 1666, are, "That if there be no nomination of the testament made by the defunct, the Commissaries must confirm the nearest of kin;" and, finally, the Act in question, after establishing the right of representation in moveables in sec. 3, declares "That the surviving next-of-kin of the intestate claiming the office of executor shall have exclusive right thereto in preference to the children or other descendants of any predeceasing next-ofkin; but that such children or descendants shall be entitled to confirmation when no next-of-kin shall compete for the office." Therefore, so far from giving any countenance to the notion that it was meant to deprive the next-of-kin of the right of administration, competent to them under the old law, the statute expressly confirms it. But then it was said that the right of the next-of-kin was not a right of blood, but a right arising from their having in the general case the beneficial interest in the estate to be administered, and cessante ratione cessat lex-a principle given full effect to in 1755, when the Court, in Lord Crawford's case (M. 3818), preferred to the office of executor a general disponee, although not named executor by the defunct. Mr Erskine says that this case was so decided "because those to whom the deceased has given the only substantial interest in the succession ought also to have the right of administering it," (Inst. 3, 9, 32;) that is to say, the fact referred to may be accounted as a nomination of executors by implication. The case, therefore, only proves that the right of the next-of-kin can never be defeated, save by a testamentary writing of the defunct, containing either an appointment of executors expressly (as in Peacock v. Glasgow, 2 S., 639), or by the implication arising from their being constituted universal disponees, universal legatories, or residuary legatees of the deceased. In the presence of this fact, and the well-established principle that an Act of Parliament does not alter the common law further than its words expressly father to one-half of the estate, left by a predeceasing son, redeclare, it is in vain to contend that the bare admission of a peats all the old law relative to administration by the next-ofkin. If the father is entitled to the office under s. 3, so also is the mother under s. 4. But the mother is not one of the next-of-kin at all; consequently, under s. 1, which declares "that the children or descendants of the predeceasing next-ofkin shall be entitled to confirmation when no next-of-kin shall compete for the office," she would be excluded by a niece or nephew of the deceased. Now as the right of a niece or nephew is secondary to that of a brother or sister, multo and if the mother, so also the father; for as to both the magis, is a brother or sister entitled to exclude the mother, phraseology of sec. 3 and sec. 4 is exactly the same? It was also argued that as the Act makes no reference to the widow's half, a case might occur in which the next-of-kin would take nothing; for if the intestate left a widow, and predeceased his father, the two would divide the succession between them to the exclusion of the brothers and sisters, or their descendants. It rather appears, however, that this is not a right interpretation of the statute. The relict's share is not a right of succession at all, but vests in her as the surviving member of the partnership in the commumio bonorum constituted by the marriage. On this principle the jus relictae does not need confirmation. The Act seems only to deal with that part of the succession of the defunct requiring to be diverted into such channels as are appointed for it ex lege, that is to say, succession of property so-called, and exclusive of both the jus relictae and the children's legitim. The moveable estate spoken of in the Act means the whole free moveable estate on which the deceased might have tested (s. 9). This, however is of

MARY PURDIE AND ALEXANDER PURDIE, her Administrator-in-Law, v. William Kelly.

Damages-Personal Injuries-7th and 8th Vict., cap. 15; 19th and 20th Vict., cap. 58.-Circumstances in which damages awarded to a mill-worker for injuries caused by the machinery being unboxed.

THE pursuer, a minor, with consent of her father as her administrator-in-law, sued the defender, a mill-owner at Barrhead, for £300 sterling, as damages and solatium sustained by the pursuer through the fault, negligence, and carelessness of the defender, or others for whom he was responsible, in so far as being in the defender's employment, working at a self-acting spinning machine in motion, her right hand was caught by the wheels or gearing, and her fingers so crushed that they had to be amputated, and her hand much bruised and injured, which injuries had been occasioned in consequence of the gearing of the headstock of the acting mule not having a cover or guard, and being improperly constructed and unfenced, and the passage between the machine and others being narrow, and insufficient, and dangerous, in violation of the Factory Acts.

The record was made up by condescendence and

defences.

The defence was that the accident was caused by the pursuer's own fault or negligence, in having recklessly or carelessly thrust her hand into the machinery, not while she was at work, but when amusing herself.

The record was then closed, and a proof before answer was allowed to both parties. Proof having been led, and parties' procurators heard, the Sheriff Substitute pronounced the following Interlocutor:

Having considered the closed record, proof, productions, and whole process, and heard parties' procurators thereon: Finds that on and for sometime prior to the 21st January, 1860, the pursuer, Mary Purdie, then a child of thirteen years of age, was employed by the defender as rove-piecer at a selfacting spinning machine, within his cotton mill at Fereneze, Barrhead: Finds that in accordance with the usual practice in the said cotton mill, the pursuer had occasion, in pursuing her work as a rove-piecer, to go by a narrow passage, known as "the centre back pass," past the back of the head stock of the said spinning machine, and certain wheels at the back of said head stock, in order to put in the rove: Finds that two of said wheels are toothed, and revolve upon each other with an inward motion: Finds that on the said 21st January, 1860, when the occurrence libelled is said to have taken place, the said wheels were unfenced, and without shield or guard of any kind, and that in consequence they were dangerous to the said pursuer, as the rove-piecer employed at the said machine: Finds

that upon that day the pursuer was in the said centre back pass, in the usual course of her employment, and that when she was so there, her right hand was caught in the said wheels and the first three fingers thereof so crushed and mangled thereby down to the knucle joints that they had to be ampu tated, her little finger being from the said cause partially injured, and part of the bone of the top joint thereof taken off Finds that the same day, or very soon afterwards, the said wheels and all similar wheels in the said cotton mill wer fenced or "boxed in" and that for some time prior to the abov accident, the guards or boxes for these wheels had been lying in the mill unused: Finds, that in not having fenced or boxe in the said two wheels, the defender failed in exercising du care and caution for the protection of the said pursuer as rove-piecer in his said mill; and failed to comply with the re quirements of the Factory Act, 7 and 8 Vic. chap. 15, sec. 21 which requires such wheels to be securely fenced: Finds, the in consequence of the defender's said failure to fence or box i said wheels, the pursuer has suffered great injury and damag Finds, in point of law, that the defender's said failure,

averred on record, and established in evidence, is relevant, an sufficient to infer culpable negligence, or fault on his part, and therefore, finds that the defender is liable in reparation to th pursuer, Mary Purdie, and to her father, Alexander Purdi as her administrator-in-law, and joint pursuer of this actio assesses the damages at £40 sterling, and decerns theref against the defender: Finds the defender liable in expense allows an account to be given in, and remits the same whe lodged to the auditor of Court to tax and report.

NOTE. The long period which has intervened between t date of the occurrence, in respect of which the pursuers clai damages, and the raising of the present action, is certain lost, owing to the disappearance of valuable witnesses, but t most unfortunate; for not only has important testimony be evidence adduced is less pointed and satisfactory than co have been desired. There are circumstances of real evider female pursuer was a child of 13 years of age at the period in the case, however, which so far diminish its obscurity. T question, and was employed as rove-piecer at a self-acting sp ning machine in the defender's work. The "centre back pa which she wrought and the similar machine which stood n or way between the back of the head stock of the machine it, and the frame of which was then standing, though machine itself was not as yet set agoing, was very narrow, exceeding at the back of the head stock of her machine had little room; and in so passing, or in standing at the b inches in breadth; consequently, the rove-piecer in passi of the head stock, she was in close proximity to two toot wheels revolving on each other, these being parts of the and being the wheels by which confessedly she lost her fing chine driven by steam-power at which the pursuer wroug

For these wheels, shields or boxed-in covers were provi and as the wheels themselves were undoubtedly capable effecting serious mischief, they were exactly such as the i guarded, as being parts of the machinery "near which cl tory Act of 7 and 8 Vic., cap. 15, sec 21, requires to b ren or young persons were liable to pass or be employ From the afternoon of the day on which the child was 1 these and all similar wheels in the defender's works have t boxed in; but unfortunately, though the covers or boxes v lying under a window-sole in the factory, ready for use, at time, they were not put on until she had been injured. defender was desirous to make it appear that the machin question had only been started for a few days, and that delay in putting on the covers arose simply from a reason wish to see that the wheels wrought well before they finally covered in, but not only was there little force in thi it appears the covers lift off and on at pleasure, but it is pr by the pay-sheet put in by the cashier of the defender tha machine had been going at least thirty-two days, i.e. n five weeks at the date of the accident, the pursuer ha earned wages in rove-piecing at self-actors on that numb days prior to the accident, and never having been so empl at any machine except that in question; nor is it said tha operations were going on during or after that period v the boxing-in of the wheels would have interfered with. defender next maintains two very inconsistent propositic 1st, that the wheels were not dangerous, and that the e back pass" was perfectly safe; and 2d, that the rove-pi were strictly prohibited from going through the centre pass. Viewing the evidence as a whole, the Sheriff-Subs

is satisfied that the wheels were dangerous, especially in the case of a child worker, and unless such had been the case he would ask why covers had been provided for all such wheels in the self-acting machines. That the juvenile rove-piecers would be near them, and would be likely sometimes to pass them is clear enough, and even if a general order was issued against passing the head stocks in which they were placed, in dealing with children, the wheels should have been guarded. But what is the amount of the evidence as to the prohibitions against the rove-piecers passing these head stocks? It is said to have proceeded from Mr M Murtrie, the spinning master in the defender's work, and he says that he warned all the rovepecers, and the female pursuer amongst them, and that he trusted to the "guider" or "minder" of each machine to force his orders. But the prohibition, if ever announced, was a perfect mockery; the inveterate practice of the mill was ir the rove-piecer, in roving, to pass the head stock. Mr Murtrie admits he saw them do it without checking them, and he cannot specify the name of any rove-piecer who obeyed arders, by taking a different course, instead of passing the ad stocks. (Proof, pp. 16, 17, 18.) It may be added that the different practical operatives from other works, ad1200d as witnesses, hinc inde, assume that the rove piecer

wyd have occasion to pass the head stock.

If this is so, can be little room for doubt that the wheels should have been covered. It is said, however, that the female pursuer not engaged in rove-piecing when she was hurt, but that We amusing herself she recklessly put her hand into the wheels which crushed it. The pursuer says that she had put ve for her brother, Alexander Purdie, and for Mrs Caldthe two piecers at her machine, and that when doing so, Leader Wason, the guider or minder, called to her suddenly put in rove for him, he taking charge of the upper portion bth sides of the mules next the head stock, and that in Laste to do so she ran up to the centre back pass, and in g the head stock there her hand was caught in the and hurt. Alexander Purdie, her brother, corrobothese statements in all their essentials, deponing that he ari Wason give her the order; that she ran to fulfil it, and almost immediately thereafter he heard her cry of pain, she was caught in the wheels. Most unfortunately Wason, 1 has since enlisted as a soldier, has left the country, and La evidence cannot be got. Mrs Caldwell, the other piecer the machine, is relied on by the defender to contradict this buitive testimony. She says that the child did not fill up refer her that morning, and that she had no work to do. on being pressed, she admitted that she did not know ether she might not have to put on rove for her brother verander. She adds that she was standing near Wason, that she would have heard him order the pursuer to put rwe if he had done so, while she depones she heard no order given. But this, after all, is negative evidence net positive. And not only is such evidence of little , especially after the lapse of nearly two years from the rence in question, and in relation to a matter so little arkable in itself as readily to escape observation. But it be observed further, that persons in Mrs Caldwell's posiare generally singularly unobservant, and their percepof things not immediately connected with themselves at and dull to a degree almost incredible to better educated e. This is illustrated by what she says about rove-piecers wg the head stocks in the mill; for she asserts that when de machines in the flat were in motion, she never saw repiecers passing the head stocks even after they were red, and that it was the practice for them to go up the pass" when roving. Now, this is inconsistent with the e strain of the evidence, and even with the evidence of Wertrie, the spinning master, whose statements are quite stent with it. The same remarks apply to the evidence Mary Muirhead, (proof, page 33,) who is equally far wrong practice. Indeed, one can scarcely get rid of a suspicion fir testimony is characterised by a certain partisanship half of their master, the defender. These remarks, if freaded, would seem to reduce to little importance the y told by Mrs Caldwell and Mary Muirhead that the was playing about shortly before the accident, and ramming up to them with her hands black with grease, that the grease must have been off the machinery, as it the only place where such grease existed about the place. Sex, so one else in that busy flat saw the pursuer playing s, and dirt and grease might surely be found on a rove

piecer's hands though she had not been touching the dangerous wheels in question; and although she had been playing herself some little time before the accident, this does not contradict the evidence of Alexander Purdie, that she was afterwards roving for him, and called by Wason to put in roves for him, near the head stocks, whereby she came in contact with the wheels. On the whole, it is thought that the pursuer was in the flat, in attendance on her work, and that there is nothing to show she was doing anything else except her work when she was caught and hurt. It is not pretended that there was anything implying discharge of the pursuer's claim of damages, if she was ever entitled to demand them. But the medical attendance afforded her, and the consideration shown by the defender in giving her employment for a long time subsequent to the accident, must form grounds for abating the damages allowed; and as the girl's appearance and health indicate that she may still earn a livelihood, though by more limited means, and under less favourable conditions than before the accident, the Sheriff-Substitute thinks £40 a reasonable amount to decern for.

This Interlocutor was appealed, and having heard parties' procurators, the Sheriff (Mr Patrick Fraser) pronounced the following judgment:

The Sheriff having heard parties' procurators on the defender's appeal, and considered the appeal for the pursuer, made avizandum, and thereafter considered the proof, productions, and whole process, dismisses the appeal, adheres to the Interlocutor appealed against, Finds no additional expenses due to or by either party, and decerns.

NOTE.-The defender contended that the summons was irrelevant, and even though relevant, that it was not supported by the evidence. The Sheriff is of opinion that he is wrong in both of these contentions. The condescendence avers that the pursuer was in the employment of the defender as a rove-piecer in his cotton mill, and that while in the course of said employment she received the injury of which she complains "in consequence of the fault, negligence, and carelessness of the defender," as set forth in the record. This is a relevant statement to go to proof. The proof establishes that certain wheels at the back of the head stock were intended to be covered or fenced, and were not so, and that in consequence of this the pursuer's fingers were caught by the wheels and were crushed and mangled. That these wheels were dangerous, and ought to have been fenced, there can be really no doubt, when the proof is fairly considered; but perhaps the best proof that they were dangerous, is the fact that the pursuer was injured by them. Now, at common law, and independently altogether of the Factory Act, "when a master employs his servant in a work of danger, he is bound to exercise due care in order to have his tackle and machinery in a safe and proper condition so as to protect the servant against unnecessary risks." (Lord Chancellor in Bartonshill Coal Co. v. Reid, 3, M'Queen, p. 288.) No doubt the Factory Acts add additional force to this common law obligation by the imposition of penalties, and the Sheriff concurs with the SheriffSubstitute in holding that the 21st sec. of the 7th Vict., cap. 15, as explained by the 4th sec. of the Amendment Act 19th and 20th Vict., cap. 38, is applicable to the wheels in question. But it was said that even assuming that the defender here was bound to guard this machinery, he is not liable in damages to the pursuer, because she had no right to be near the machinery at the time when the accident happened, and was amusing herself, and the witnesses Ann Campbell or Caldwell, John M'Murtrie, and Mary Muirhead, gave some countenance to this by their evidence. But Ann Caldwell's evidence is contradicted upon other points by the evidence of several rove-piecers as to whether they passed the head-stock, and as to whether they were told not to pass it. And so likewise the evidence of John M'Murtrie and Mary Muirhead is not consistent with that given by several witnesses. The Sheriff cannot, therefore, hold it to be proved that the pursuer, by her own carelessness, brought down the calamity upon herself. There is one feature of the case which calls for some notice. The accident took place in January, 1860. The pursuer, in consequence of it, was off work for nearly three months, during which time the defender paid her her wages, as if she had been working, and then she returned to the defender's service and continued in it for nearly a year without