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No. 20, NEW SERIES.-Vol. I.
No. 959, OLD SERIES.-Vol. XIX.

MAY 26, 1855.


CARE of CHAMBERS.-The Widow of the Policeman

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No. 20, Vol. I., New SERIES.



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CONTENTS. Leading Article


COURT OF QUEEN's Bench. Notes of the Week.

203 By G. J. P. SMITH and W. B. BRETT, Barristers at Law. Review...


Moore and Kettle o. Woolsey and King.-(Life policy First Report of the County Courts Commission. 204

- Suicide--Assignment of interest--Legality of Bills in Progress.


468 London Gazettes.,


Reg. v. The Registrar of the Pharmaceutical Society of NAMES OF THE CASES REPORTED.

Great Britain.-(Mandamus- Pharmaceutical So. COURT OF CHANCERY.

ciety-Registrar-Member of society-Qualification—15 & 16 Vict. c. 56, 8. 5)...

470 By T. EDWARDS, Barrister at Law.

Mayer 0. Burgess.-(County court-Appeal--Juris. Simpson o, Sadd.-(Lessor and Lessee-Agreement

diction-Cause of action under 201.)....

473 Specific performance-Waiver of right to call for title)

Greaves v. Humphreys.-(Action on joint retainer

457 Lash v. Miller.-(Practice-Revivor-Bankruptcy of

Judgment by default against one-Separate re

tainer - Amendment Common-law Procedure defendant)...

Act, 15 & 16 Vict. c. 76, s. 37)


Reg. 0. The Inhabitants of Epsom.-(Settlement-
By G. Y. Robson, Barrister at Law.

Apprenticeship to chimney-sweeper-Consent of Beaumont v. The Marquis of Salisbury.-(Deed

justices--28 Geo. 3, c. 48)....

474 Construction Limitation to trustees and their heirs to support contingent remainders-Right to

BAIL COURT. cut timber)


By G. FRANCIS, Barrister at Law. Jebb v. Jugwell.-(Will-Construction-Power-Ap- Chambers v. Wiles.-(Costs- Payment into courtpointment)

460 County Court Act, 13 & 14 Vict, c. 61, s. 11).... 475 VICE-CHANCELLOR KINDERSLEY'S COURT.

Hesketh o. Flemming.-(Writ of summons-CommonBy C. MARETT, Barrister at Law,

law Procedure Act, 1852, sects. 2, 17, 18, and 21 Potter o. Richards.-(Condition-Restriction-Mar

-Defendant residing abroad-Practice)

475 riage)...

462 Reg. o. The Justices of Great Yarmouth.--(Manda. VICE-CHANCELLOR STUART'S COURT.

mus-Costs of shewing cause).

476 By T. F. MORSE, Barrister at Law..

COURT OF COMMON Pleas. In re The Joint-stock Companies Winding-up Acts,

By W. PATERSON and W. Mills, Barristers at Law. and in re The London and Birmingham Extension, Chilton o. Carrington.-(Common-law Procedure Act, &c. Railway Company, ex parte Gay.-(Railway

1854-Detinue -Order for delivery of a chattel) · 477 company-Contributory-Liability for debts and

CROWN CASES RESERVED. costs-Winding-up Act, 1848,(11 & 12 Vict. c. 45), 88. 58, 83).....


By G. FRANCIS, Barrister at Law. Crompton v. Huber.-(Assignment of legacy- Trustee

Reg. o. Archer.—(False pretences, credit to person and cestui que trust-Assignment of debt--Practice) 465

making Statement of purpose-Existing fact) .. 479 VICE-CHANCELLOR Wood's Court.

By MATTHEW B. Begbie, Barrister at Law.

By J. P. Deane, D. C. L. Manser v. Dix.-(Production of documents --Privi. The Temiscouata.-(Damage-Amount of bail-Costs leged communications)..




simply to pay a given sum for services at the end of a

certain term, is most important in its consequences. LONDON, MAY 26, 1855.

In the former case the person employed has an imme

diate remedy, the moment he is dismissed without law. The opinions of the majority of the judges, and the ful cause, for a breach of the contract to employ, and judgment of the House of Lords, in Emmens v. Elder- will recover compensation in damages for such breach, ton, (4 H. L. C. 624), confirming the judgment of the which may be less than the stipulated wages payable Court of Exchequer Chamber in Elderton v. Emmens, at the end of the term, if it happens that he has the (6 C. B. 160), notwithstanding the cases of Aspdin v. opportunity of employing his time beneficially in anAustin (5 Q. B. 671) and Dunn v. Sayles, (Id. 685), other way, and the employer is not then bound to pay may be considered as having finally settled, that an the whole sum agreed upon. But if the agreement be agreement between A. and B., that A. will serve B. that the person employed is to be paid a certain sum for a term, and in consideration thereof B. will pay a for his services at a certain time, provided he serves or salary for such service, will, in the absence of any is ready to serve, there being no contract to employ stipulation clearly indicating a contrary intention, raise during the term, he can only maintain an action, after an implied contract on the part of B. that he will that time has arrived, for non-payment, and then is allow A. to continue in the service until the end of entitled to recover the full amount, though his loss the term, in order that the stipulated reward may be may be much less. And convenience is decidedly in earned, and not a mere agreement to pay the salary at favour of construing such agreements to be contracts the end of the term. B. is not bound to find actual to employ, as well as for the payment of wages. work or employment for A., but he is bound to allow The question in the construction of these, as in all the relation of master and servant, or employer and other contracts, is, what was the intention of the conemployed, to continue during the term, subject, of tracting parties; but the decision in Emmens v. Eldercourse, to his right to dismiss A, for misconduct. And ton shews that the strong leaning of the judges is, on the distinction between an agreement to employ or to grounds of policy and convenience, to hold all contracts engage the services of a person in the sense before for service on the one part, and for the payment of mentioned, for a given term, and then to pay for such wages on the other, for a specified time, to be contracts services at the end of the term, and an agreement on the part of the employer to maintain the relation of employer and employed during the term, (though he diately. (Pagani v. Gandolphi, 2 Car. & P. 370). Seis not bound to supply work), and not merely to pay condly, he may treat the contract as rescinded, and the wages, unless there be some stipulation in the con- may immediately sue on a quantum meruit for the work tract, or circumstance connected therewith, clearly and actually performed; (Planché v. Colburn, 8 Bing. 14); distinctly shewing a contrary intention on the part of but in that case, as he sues on an implied contract the contracting parties. Elderton v. Emmens was an arising out of actual services, he can only recover for action by an attorney against a company on an agree- the time he has actually served. (And see Fewings v. ment between them, which, stripped of the difficulties Tisdal, 1 Exch. 295; 11 Jur. 977, accordante). Thirdly, which arose from the form of the pleadings, was, in he may wait until the termination of the period for substance," that froin a certain day the plaintiff

, as which he was hired, and may then, perhaps, sue for attorney of the company, should receive a salary of his whole wages in indebitatus assumpsit, relying on 1001. a year in lieu of rendering an annual bill for the doctrine of constructive service. (Gandell v. Pongeneral business transacted by him for the company, tigny, 4 Camp. 375; Collins v. Price, 5 Bing. 132 ; and should, for such salary, advise and act for the vide tamen the observations of the judges in Smith v. company on all occasions and in all matters connected Hayward, 7 Ad. & El. 544). As observed by Crompwith the company, (the prosecuting &c. of suits, and ton, J., (4 H. L. C. 646), “ It is since the case some other matters, for which he was to be paid the of Fewings v. Tisdal, that this last remedy cannot be regular charges, excepted); and that, in consideration maintained in the shape of indebitatus assumpsit, for that the plaintiff would advise and act for the company the simple reason that the allegation of the defendant in the manner and on the terms aforesaid, the company being indebted for work done is untrue. But the promised to pay him the salary of 1001. a year;" and question is still left undecided, how far a special acthe plaintiff alleged, as a breach of this agreement, that tion of debt, averring a contract to pay, a continuing before the expiration of one year the company wrong- readiness to serve, and a dismissal from service on the fully dismissed him from their employment, and re- part of the master, might not be maintained.” And fused to employ him as such attorney of the company, in p. 644 the learned judge, commenting on the inand to pay him the said salary. The Court of Exche- conveniences of allowing such an action, says, “It quer Chamber, and afterwards the House of Lords, would be much to be lamented if a servant or held, that the “refusal to employ,” as here alleged, in agent who was dismissed should be able to say, the breach, must be taken to mean, not a refusal to I could easily get another situation as good, or find actual work for the plaintiff, but, after verdict at better, but I will not do so, and instead of claiming least, in the sense which would support the declaration, the real damage I have sustained by the inconvenience viz. & refusal to allow the plaintiff to continue in their and temporary loss of situation, I will bring an action service as their attorney-a refusal to continue the re- for every instalment of salary till the contemplated lation of employer and employed; and that the agree- period has elapsed.” And Parke, B., in the judgment ment shewed a contract by the company, not merely in the Exchequer Chamber, (6 C. B. 187), said, “ If it to pay the plaintiff his salary at the end of the year, be held that such a contract as this is for service and but to continue him in their service as their attorney pay respectively, and that although the employer has for one year at least, though they were not bound to determined the relation by an illegal dismissal, the find work for him; and that therefore he was entitled employed may entitle himself to the wages for the to sue the company immediately on his dismissal for whole time by being ready to serve, a doctrine would the damages he thereby sustained, and was not bound to be sanctioned that would be of pernicious consequence, wait until the end of the year, and then sue for his year's as in the case of a business being discontinued, or a salary ;-and the majority of the judges commented dismissal for misconduct without legal proof.” (And strongly on the great inconvenience that would arise see the observations of Erle, J., in Beckham v. Drake, from a contrary construction of the contract; for if the 2 H. L. C. 606). only remedy was by action for the salary, the party em- There are two cases (Aspdin v. Austin, 5 Q. B. 671, ployed could enter into no inconsistent employment, and Dunn v. Sayles, Id. 685) cited in Emmens v. Elbut must remain idle during the term; for if he acted derton which were questioned“, but not distinctly overotherwise he could recover nothing, because he would the principle of that decision. Parke, B., indeed, in

ruled. It is, however, difficult to reconcile them with not have continued ready to serve until the salary be delivering the judgment of the Court of Error, (6 C. B. came due. Indeed, it is still an open question whether 187), and in his opinion before the House of Lords, (4 a person who has engaged to serve for a certain time H. L.C: 669, 670), held that Aspdin v. Austin and Dunn at certain wages, and who is wrongfully turned away before the Court: the former on the ground, that if

v. Sayles were clearly distinguishable from the case then by his master before that time has expired, is at liberty the Court had there held that the defendant had conto elect to treat the dismissal as no dismissal at all, tracted to continue to employ the plaintiff for the term and to demand at the expiration of the term for which of three years, the defendant would have been obliged, he was hired the whole of his stipulated wages, on the at however great a loss, to continue his business for ground that his readiness to serve is equivalent in law that time; and the latter upon a similar ground, and to actual service. Mr. Smith, in his notes to Cutter v.

also that in the indenture sued upon in that case the Powell, (2 Smith’s L. C. 19, 20), states the result of tion the agreement of both parties, were wanting. It

words “it is agreed,” which would make the stipulathe authorities to be, that a clerk, agent, or servant is at least questionable whether the distinctions taken has his election of three remedies: First, he may bring by the learned baron are satisfactory. In Aspdin v. a special action for his master's breach of contract in dismissing him, and this remedy he may pursue imme- * See the opinions of Erle and Crompton, JJ.

Austin, by an agreement between the plaintiff and the implied contract to carry on the business, he must be defendant, the plaintiff agreed to manufacture for the presumed to be also cognisant of the consequences of a defendant cement of a certain quality; and the de- breach of his covenants. Now, as between the confendant, on condition of the plaintiff performing such tracting parties in an agreement for the plaintiff to engagement, promised to pay him 4l. weekly during serve and the defendant to employ and pay wages, the first two years following the date of the agreement, whether the plaintiff sued for a breach of the contract and bl. weekly during the third year, and also to take to employ, or on the implied covenant to carry on the him into partnership as a manufacturer of cement at business, the damage sustained by the plaintiff would the end of the term; and the breach assigned was, that be precisely the same, the only loss sustained by the the defendant refused to permit the plaintiff to continue plaintiff by the abandonment of the business being in the service of the defendant during the three years. the loss of his employment. As, therefore, in such an The Court held that the agreement did not raise an agreement, the injury to the defendant, in case of a implied promise that the defendant would continue the breach of the supposed implied covenant to carry on plaintiff in his service during the three years, or any part the business, would not exceed the injury which he thereof; though the defendant was bound by the express would sustain from the breach of the covenant to emwords to pay the plaintiff the stipulated wages during ploy, there does not appear to be any sufficient reason that period, if the plaintiff served, or was ready to for saying that the circumstance, that an implied coveserve, according to his contract. And Lord Denman, nant to carry on the business arises, negatives an intenin delivering the judgment of the Court, said, “The tion to enter into a contract to continue the plaintiff in breach here assigned by the plaintiff assumes that the defendant's service, any more than the implication the defendant, at however great loss to himself, was of a contract simply to employ would do. For a breach bound to continue his business for three years; but of either of these covenants, all that the plaintiff could the defendant has not covenanted to do so; he has obtain would be damages for his dismissal; and whecovenanted only to pay weekly sums for three years to ther that dismissal was caused by the defendant giving the plaintiff on condition of his performing what on up his business, or by any other cause, the damages his part he has made a condition precedent; and the would be the same; and these damages, in the great plaintiff will be entitled to recover those sums, whether majority of cases at least, must be less than the salary, he performs that or not, so long as he is ready, and which, according to the doctrine laid down in Aspdin willing, and offers to perform it, and is prevented only v. Austin, the plaintiff might sue for from time to time by the defendant from doing it. This, then, is the safe until the end of the term. The inconvenience and rule for determining the rights of these parties between hardship to the master is increased instead of dimi. each other, and no injustice follows to the plaintiff. If nished by compelling him, in the event of his giving he should assign a breach in the non-payment of the up his business, to pay his workmen the full amount weekly sums, it would be no answer for the defendant of salary for the period of their engagements, instead to o say that he had discontinued the business and dis of the smaller amount, which in most cases would missed the plaintiff; the reply would be, that he might compensate them for the loss sustained by their disindeed, if he pleased, do both, but that he was still missal. The inconvenience to the public, and to the bound to make the payment which he had expressly servant himself, arising out of such a doctrine, has covenanted to make." It is submitted, that it is been already pointed out in the passages cited from the scarcely correct to say that the breach in this case judgment of the Exchequer Chamber in Elderton v. assumed that by the agreement the defendant bound or Emmens, and the observations of Erle and Crompton, obliged himself to carry on his business for three years; JJ., in the House of Lords. Dunn v. Sayles was de for if the defendant at any time abandoned his business, cided upon precisely the same ground as Aspdin ! he would not be liable to be sued by the plaintiff in Austin, and for the same reasons as those above urged it terms for such abandonment; the only effect of such a is submitted that it must be considered as substantially course would be to render him liable to an action by overruled by, and not distinguishable from, Emmens T. the plaintiff for refusing to continue him in the service, Elderton. With respect to the other ground on which and the measure of damages which the plaintiff would this case was distinguished by Parke, B., viz. the omisrecover would be the loss which he sustained by his sion of the words “it is agreed,” it must be remarked, dismissal. It is true, that if the defendant ceased to that in Emmens v. Elderton those words were no doubt carry on the business he could not perform his contract most important, for the agreement was simply that the to employ the plaintiff in that business; but, as ob- plaintiff should receive and accept a salary of 1001. & served by Lord Denman, (6 Q. B. 683), “it would be year; and without the words, “it is agreed between the an extension of the principle of Sampson v. Easterby, plaintiff and the defendant that" &c., there would have (6 Bing. 644), Saltoun y, Houston, (1 Bing. 433), and been no covenant by the defendant even to pay the other cases cited in the argument, to hold, that where salary, from which alone the covenant to continue the parties have expressly covenanted to perform certain plaintiff in the service, so as to enable him to earn the aets, they must be held to have impliedly.covenanted salary, could be implied; but in Dunn v. Sayles there for every act convenient or even necessary for the per- was an express covenant by the defendant to pay the fect performance of their express covenants.” And the plaintiff wages, and it is from the covenant to pay wages covenant by the defendant to carry on the business for services, that, according to Emmens v. Elderton, the would seem to be in its nature more extensive than a implied covenant by the employer to continue the emmere covenant to employ the plaintiff in the business, ployed in the service arises. Parke, B., in his opinion though as between the plaintiff and the defendant the in the House of Lords, (4 H. L. C. 667), himself says, damages arising from a breach of either covenant would "I think that there is clearly implied, on the part of be the same. But even assuming that if the Court had the person who contracts to pay a salary for services construed the agreement as amounting to a covenant for å term, & contract to permit those services to be to employ, such a construction must necessarily have performed, in order that the stipulated reward may be raised an implied contract to continue the business, it earned, besides an agreement to pay the salary at the is difficult to see how that could afford any ground for end of the term.” In Sykes v. Dixon, (9 Ad. & El. presuming an intention on the part of the defendant to 693), there being only an agreement by A. to serve B. covenant only for the payment of wages, and not to for twelve months, without any contract by B. to ememploy; for if the defendant must be taken to have ploy A., the Court held the agreement void for want of known that the effect of covenanting to employ in the mutuality; but in that case there was no contract by B. particular business for three years would be to raise an to pay wages for the service, from which a covenant to employ could be implied. The recent case of Reg. V. Mr. Malins said his hon. friend (Mr. L. King) proWelch (22 L. J., M. C., 145) decides that where, in a posed to abolish the customs of London and York, contract to serve for a term, the wages to be paid to which established a different distribution of the estates the servant for such service are not a fixed sum, but of freemen of the city of London and persons residing are to be measured by the amount of work done, the in the city of York from that which applied in other fact that the wages are so made dependent on the work parts of the kingdom. He (Mr. Malins) agreed in the done raises an implied obligation on the part of the desirability of abolishing customs that interfered with employer to find a reasonable quantity of work for the the general law of the land; and he thought that that servant, for otherwise the employer would be under no part of the bill which related to advancements made to obligation to pay the servant any wages. (And see a child by a father, and advancements made by a moPilkington v. Scott, 15 M. & W. 657).

ther, was also unobjectionable. He was not disposed to

dissent from the principle of the bill, but he considered NOTES OF THE WEEK.

that some of its details, affecting the rights of heirs-at

law, were open to objection. INSOLVENT DEBTORS COURT.-May 18.

Mr. L. King expressed his readiness to accede to any

suggestions of the hon. and learned gentleman, with the [Before Mr. Commissioner MURPHY.]

view of amending the clauses to which he had referred. In re HORATIO CLAGETT.

He thought the abolition of the existing customs would A rule in this case was argued some time sincé, calling place heirs-at-law in a much more favourable position upon the assignees, under a petition in this court of than they held at present. 1836, to shew cause why they should not execute a re- Mr. Napier considered that it was advisable, whenassignment to the insolvent of his estate, and why the ever it could be done, to have uniformity of legislation warrant of attorney executed by him at his discharge for the United Kingdom, and asked whether it was should not be cancelled, or satisfaction entered up on intended that the bill should extend to Ireland ? the judgment obtained upon that warrant of attorney. Sir F. Thesiger suggested that some inconvenience The insolvent petitioned in the year 1836, and was would be occasioned if the bill came into operation imdischarged upon executing the usual documents. Since mediately upon its passing. He thought its operation then he was made a bankrupt, and obtained his certifi- should be delayed for, say a period of three months, in cate; whereupon the present application was made, order that persons who had made dispositions of their under the 62nd section of the 7 Geo. 4, c. 57, it being property depending on the existing local customs might contended that the certificate granted under the 200th be enabled, if they thought fit, to alter the distribution section of the Bankrupt-law Consolidation Act was a of their estates. full discharge of prior existing claims.

Mr. M. Chambers observed that this bill was most Sargood, in support of the rule.

admirably drawn, presenting a view of the state of the Nichols and Reed, contra.

law which was at once intelligible, not only to lawyers, Mr. Commissioner MURPHY to-day gave his judg- but also to persons who were not lawyers, and he would ment, after consulting the other members of the Court, recommend it as a model to all parties who were conwhose opinion, he said, fully coincided with his own. cerned in the preparation of parliamentary bills. He was of opinion that the meaning of the word “dis- The clause was then agreed to, as were the other charge,” in the 12 & 13 Vict. c. 106, s. 200, was merely clauses of the bill, with some amendments. to relieve the bankrupt from all process in respect of

On the motion of Sir F. Thesiger, the debts, but not to extinguish the debts themselves. A clause was added to the effect that the bill shall Upon a careful comparison of the various clauses of the not come into operation till the 1st November, 1855. Bankrupt Act and of the 7 Geo. 4, c. 57, he arrived at

GRAND JURIES. the conelusion that the debts were not discharged and satisfied by the certificate in bankruptcy, and for that facilitate the despatch of business before grand juries in

Mr. Bowyer moved for leave to bring in a bill to reason the rule must be discharged.

England and Wales. He observed that the present HOUSE OF LORDS.-May 18.

practice was to swear witnesses, who had to give eviSTATUTE-LAW COMMISSION.

dence before grand juries, in open court, and the conseThe Lord Chancellor, in laying upon the table of the quence was, that these witnesses had to make their way House a copy of the minutes of the proceedings of the through a crowd to the public crier, by whom the oath Statute-law Consolidation Board, said he thought a was administered, and back again through the crowd to copy ought to be laid before their lordships, inasmuch the grand jury room. Thus a great deal of time was as one had been moved for in another place. He de- wasted, the grand jury was kept waiting, and the oath fended the commissioners from the charge of inactivity, was administered in a very irreverent manner. for which he said there was no foundation, the work medy this evil he proposed to give power to the foreman of consolidation requiring great consideration, and occu- of the grand jury, or to any magistrate upon it, to pying a considerable time.

administer the oath to witnesses. HOUSE OF COMMONS.-May 17.

After a short conversation upon the question whether PERSONAL ESTATES OF INTESTATES BILL.

the introduction of this bill should be postponed until The House went into committee on this bill.

the result of the select committee upon the Public ProOn clause 1 being read,

secutors Bill was ascertained, leave was given to bring

in the bill. Mr. Henley asked if the bill had the approval of the Government? It would completely alter the distribu

May 18. tion of the personal property of intestates, and he

TYRONE ASSIZES. bardly thought it safe to proceed with a measure of so Mr. M.Mahon asked the Chief Secretary for Ireland sweeping a character unless it had received the sanction whether his attention had been called to the trial at the and approval of the law officers of the Crown.

last Tyrone Assizes of two sets of defendants belonging Mr. Collier agreed in the two principal objects of the to opposing religious and political parties, for mutual bill, which were to equalise the distribution of the assaults on each other, at the same time and place, and personal estates of intestates throughout the kingdom, to the course pursued by the public prosecutor emand to place the children of a mother dying intestate ployed by the Crown-namely, that though distinct on the same footing as the children of a father dying and cross indictments were preferred by the one party, intestate.

against the other, he put both sets of defendants on trial

To re

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