traversing the return, which is given by the second section of the preceding statute, is given in the room of an action for a false return; and as in such action it cannot be said that the damages are collateral, so neither can it be said that they are collateral in a proceeding under the statute, for they are consequent or dependent upon the issue, and the jury are to inquire of the damages as parcel of the charge; and consequently, if in a proceeding under the statute, the jury omit to find damages and costs for the plaintiff, whether the verdict be general or special, this defect cannot be supplied by a writ of inquiryh: but in such case the party may bring an action for a false return, for the act does not take away the party's right to bring such action, but only provides that in case damages are recovered by virtue of that act, against the persons making the return, they shall not be liable to be sued in any other action for making such return. Where issue is joined upon the traverse of the return, and the prosecutor does not proceed to trial according to the practice of the court, judgment as in case of a nonsuit may be givenk. Since the preceding statute, a mandamus, in cases to which the statute applies, is in the nature of an action, pleadings therein being admitted, and it seems that in such cases a writ of error lies upon the judgment; but upon the award of a peremptory mandamus, in a case to which the stat. of Ann does not apply, a writ of error will not liem. It appears from the wording of the statute, that there are many cases to which it does not extend; therefore in all those cases the proceedings must have been according to the course of the common law". But now by stat. 1 W. 4. c. 21, [30th March, 1831,] s. 2, after reciting that the provisions contained in the 9th Ann, c. 20, had been found useful and convenient, and that the same ought to be extended to the proceedings on other such writs, it is enacted, that the several enactments contained in the said statute relating to the return to writs of mandamus and the proceedings on such returns, and to the recovery of damages and costs, shall be and are extended and made applicable to all other writs of mandamus and the proceedings thereon, except so far only as the same may be altered by this act. These alterations are as follow: The 4th section reciting, that writs of mandamus, other than such as relate to the offices and franchises provided for by the 9th of Ann, are sometimes issued to officers and other persons, commanding them to h Kynaston v. Mayor of Shrewsbury, T. 9 & 10 G. 2. MS. and Str. 1052. S. C. i Bull. N. P. 203. See Str. 1053. k Wigan v. Holmes, Say. R. 110. R. v. Mayor of Stafford, 4 T. R. 689. 11 P. Wms. 351. Str. 1052. m Dean of Dublin v. the King, in error D. P. 21st April, 1724. 1 DIO. P. C. 73. Tomlins' ed. n Bull. N. P. 204. admit to offices, or to perform other matters, in respect whereof the persons to whom such writs are directed claim no right or interest, or whose functions are merely ministerial in relation to such offices or matters; and that it may be proper such officers and persons should, in certain cases, be protected against the payment of damages or costs, to which they might otherwise become liable, enacts, that the court, if it shall see fit, may make rules and orders, calling not only on the person to whom such writ may be required to issue, but also every other person having or claiming any right or interest in or to the matter of such writ, to shew cause against the issuing of such writ and payment of costs of the application; and upon the appearance of such other person, or in default after service, to exercise all such powers and authorities, and make all such rules and orders, applicable to the case as are or may be given or mentioned by or in any act passed during this session, for giving relief against adverse claims made upon persons having no interest in the subject of such claims, [see the provisions of 1 & 2 W. 4. c. 58.] provided, that the return and issues in fact or in law, shall be made and joined in the name of the person to whom the writ is directed; but the court may direct the same to be made and joined on the behalf of such other person as may be mentioned in such rules, and in that case such other person shall be permitted to frame the return, and to conduct the subsequent proceedings at his own expense; and in such case, if any judgment shall be given for or against the party suing such writ, such judgment shall be given against or for the person on whose behalf the return shall be expressed to be made, and who shall have the like remedy for recovery of costs and enforcing judgment, as the person to whom the writ shall have been directed, might and would otherwise have had. The proceedings are, by the 5th section, not to abate by the death, resignation, or removal from office, of the person making the return under the authority of this act, and peremptory writ may be directed to the successor. The 6th section is general, and enacts, that in all cases of application for any writ of mandamus, the costs of such application, whether the writ be granted or refused, and also the costs of writ, issued and obeyed, shall be in the discretion of the court, who is to order by whom, and to whom, the same shall be paid. In a case where the proceedings had commenced before this act came into force, the court refused the application for costs. 0 Under this statute, the costs may be obtained by a distinct motion after issuing of the writ. o R. v. Wix, 2 B. & Ad. 203. p R. v. Kirke, 5 B. & Ad. 1089. CHAP. XXIX. MASTER AND SERVANT. I. Of Actions by Servants against their Masters, for the Recovery of their Wages. II. Of the Liability of the Master in respect of a Contract made by the Servant. III. Of the Liability of the Master in respect of a tortious Act done by the Servant. IV. Of Actions brought by Masters for enticing away Apprentices and Servants, and for Injuries done to their Servant; and herein of the Action for SeductionWitness-Damages. I. Of Actions by Servants against their Masters, for the Recovery of their Wages. IF a person retain a servant under an agreement to pay him so much by the day, month, or year, in consideration of the service to be performed, the servant having fulfilled his part of the contract, may maintain an action against the master, or, in case of his death, against his personal representative, for a breach of the contract on the part of the master. The form of action will depend upon the nature of the contract; if the contract be by deed, an action of debt or covenant must be brought (1); if by parol, (i. e. in writing, but not a specialty, or verbal,) an action of debt or assumpsit. If a servant be hired in the general way, without men (1) If a feme covert, without any authority from her husband, contract with a servant by deed, the servant having performed the service stipulated, may maintain an action of assumpsit. White v. Cuyler, 6 T. R. 176. tioning the time, that is a general hiring, and in point of lawa a hiring for a year, and the servant is considered to be hired with reference to the general understanding upon the subject, viz. that he shall be entitled to his wages for the time he shall serve, though he do not continue in the service during the whole year; and if he die before the end of the year, his personal representatives will be entitled to a proportionable part of the wages due to him at the time of his death. So where the agreement was for a yearly salaryd, and the party was dismissed before the end of the year. In a casee where the plaintiff, commencing his service in March, 1793, served the defendant, an army agent, in the capacity of his clerk for several years, until December 23, 1826, at which time the defendant, without assigning any reason, dismissed the plaintiff, who was willing to have continued: it appeared that, in one year, the salary had been paid quarterly, but for the last six years, before 1826, it was paid monthly: it was holden, that there was an implied yearly hiring, and that defendant was bound to pay the salary up to the end of the year, and that a contract in writing was not necessary. A commission of bankrupt does not operatef as a dissolution of the contract of hiring between the bankrupt and his clerk. In the case of domestic servants, the rule is well established that the contract may be determined by a month's notice or a month's wages. A master may discharge his servant at a moment's warning for misconducth, e. g. for being absent when wanted, sleeping from home at night without his master's leave, &c., and in such case the servant will only be entitled to such wages as are due at the time of his discharge. But if the servant has not been guilty of misconduct, and the master discharges him without warning, the servant in that case will be entitled to a month's wages beyond the wages due for the period of actual service. Where a servant under a general hiring at the rate of so much per annum, is dismissed for misconduct, he cannot recoverk any of the salary of the current year, even for the time during which he has a Fawcett v. Cash, 5 B. & Ad. 904. g Per Littledale, J. Fawcett v. Cash, 5 3 Nev. & Man. 177. b Admitted in Cutter v. Powell, 6 T. R. 320. See also Huttman v. Boulnois, 2 C. and P. 510. c See the case of Worth v. Viner, in d Pagani v. Gandolfi, 2 C. and P. 370. B. & Ad. 908. 3 Nev. & M. 177. See h Robinson v. Hindman, B. R. London i Per Kenyon, C. J. in Robinson v. Hindman, ub. sup. k Turnerv. Robinson, 5 B. & Ad. 789. 2 Nev. & M. 829. served. Nor is it necessary that a master, having a good cause of dismissal, should either state it to the servant or act - upon it; it is sufficient if the cause exist, and the servant is not entitled to object that it is not the cause for which he was dismissed1. A servant who comes over from the West Indies where he has been a slave, and who continues in the service of his master, in England, without any agreement for wages, is not entitled to any wages, unless there has been an express promise on the part of the master. II. Of the Liability of the Master in respect of Contracts made by the Servant. A CONTRACT made by a servant acting under the expressn authority of the master, is binding on the master. And the same rule holds, where the servant acts under an implied authority. The defendanto, who was a dealer in iron, sent a waterman to the plaintiff for iron on trust, and paid for it afterwards. He sent the same waterman a second time, with ready money, who received the goods, but did not pay for them. Pratt, C. J. ruled, that the sending the waterman on trust the first time, and the defendant paying for the goods, was giving the waterman a credit so as to make the defendant liable upon the second contract. In an action by a publican, for beer sold, it appeared that the defendant had dealt with the plaintiff on credit, and paid him several sums for beer; at length the defendant gave notice to plaintiff's servant who brought the beer, that he would pay for the beer as it came in. The defence to the present action was, that the defendant had paid the servant. Lord Eldon, C. J. thought the defendant was liable; for, as the change in the usual mode of dealing had been suggested by the defendant himself, and as he had personal dealings with the master, in a particular mode, notice to the servant alone of a change in that mode would not be sufficient; the defendant must shew 1 Ridgway v. Hungerford Market Company, 3 Ad. & Ell. 171. 4 Nev. and M. 797. m Alfred v. M. of Fitzjames, 3 Esp. N. P. C. 3. n F. N. B. 120. G. o Hazard v. Treadwell, Str. 505. |