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fendant, that this comparison could not be instituted in respect of a document not produced in Court; and

WILDE, B., so held.

It was then proposed to prove a custom in the trade for a three months' notice in such cases, and also that the hirer should be liable for injuries to the horses; the injury in this case having arisen through a collision.

WILDE, B., admitted the evidence, and left it to the jury, telling them that, apart from such custom, the hirer was only bound to use reasonable care to employ a competent coachman (a).

The jury negatived the alleged custom, and found that the defendant had used reasonable care to employ a proper coachman, and that the collision had not occurred through the neglect of the defendant's coachman.

Verdict for the defendant.

(a) Vide Holmes v. Onion, 2 C. B., N. S. 690.

1862.

ARBON

บ.

FUSSELL.

Judges' Chambers, coram Keating J.

MASON v. WYTHE, SUED AS CLERK TO THE Mid

LEVEL COMMISSIONERS.

SUMMONS on the part of the plaintiff for interrogatories

against the nominal defendant.

The action was for negligence of the commissioners in

regard to the breaking down of a dam.

Trinity Term.

Interrogatories

allowed against

the defendant

in an action against the clerk to commissioners, for

After declaration and before plea the present summons negligence by was taken out.

The interrogatories, of course, were pointed to the question of negligence on the part of the commissioners.

Greening, for the defendant, showed cause.-The nominal defendant is not the proper party to interrogate, he can have no knowledge of the matter.

Keane, for the plaintiff, in support of the summons.-If

VOL. III.

M

F.F.

the commissioners.

1862.

MASON

v.

WYTHE.

the defendant has no information, he can say so; if he has, he ought to give it.

KEATING, J., was of that opinion, and allowed the interrogatories.

Order made (a).

(a) Vide M'Ewen v. Rolt, 28 L. J., Exch. 380, where interrogatories were allowed against a public officer.

Coram Blackburn, J.

Trinity Term.

BLYTH v. L'ESTRANGE.

Interrogatories SUMMONS on the part of the plaintiff for leave to de

not allowed on

the part of the liver interrogatories to the defendant.

plaintiff in an action of ejectment on a forfeiture.

The action was ejectment against a copyhold tenant a forfeiture; and

upon

Keane, for the defendant, showed cause on that ground, contending that no discovery was allowed in equity for the purpose of aiding a forfeiture, and that in the Courts of Common Law it had never been decided that in such a case interrogatories were allowable under the Common Law Procedure Act, 1854, s. 50 (a).

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Greening, contrà.-There is no such distinction or limitation in the Act; and though the word "discovery" is used, that must mean discovery" in respect to the procedure to which the section relates. Forfeiture, after all, is only a breach of contract, and interrogatories are allowable in cases of tort.

BLACKBURN, J.-There is a great deal in that, no doubt; but, as the word "discovery" is used, I cannot disregard the decisions of Courts of Equity on the subject. But I will consult my brother Judges on the point.

Next day,

The learned Judge said he was still of the same opinon, and would not allow the interrogatories. Even if allowed,

(a) In Horton v. Bott, 26 L. J., Ex. 267, it was held, that interro

gatories are not allowable against the defendant in ejectment.

the objection would clearly arise on the answers; and I do not think I should put the defendant to answer in such

a case.

Therefore

No order.

1862.

BLYTH

v.

L'ESTRANGE.

Coram Byles, J.

HUNT AND OTHERS v. ALLGOOD (a).

SUMMONS on the part of the defendant, calling on the plaintiffs to show cause why the plaintiffs should not deliver their case on appeal within ten days, or why the defendant should not be allowed to sign judgment.

Notice

After Trinity Term.

On a special appeal from a rule to enter

case by way of

the verdict for the defendant,

the defendant

upon to take any step to

wards settling or advancing the case; but if the plaintiff does not do so

The action was ejectment for charity lands, tried at the is not called Spring Assizes, 1861, verdict for the plaintiffs, subject to leave to move to enter it for the defendant, on which, in June, 1861, a rule so to enter it was made absolute. of appeal was given immediately, but nothing had done, and in June, 1862, the present summons had taken out on the part of the defendant.

been

been

with due

promptitude,

The

the Court will

compel him to

Keane, on the part of the plaintiffs, showed cause. do so under pain of final defendant has misconceived his course, which, according judgment for

to the practice, would be to state the case himself, and if the plaintiff refused to settle it, to get it settled by the Judge.

D. Brown, for the defendant, in support of the summons.-That practice does not apply in such a case as the present, where there has been a judgment.

BYLES, J.-I think that is so, and that the proper course has been taken by the defendant. The practice referred to applies where there has not been a judgment or decision of any Court. But here there has been a judgment primâ facie final, and which stands until reversed. The defendant is not to be called upon to do anything to disturb it, and is entitled to rest upon it, and the other party, who seeks to set it aside, must take the active steps for that (a) Reported ex relatione D. D. Keane, Esq.

the defendant.

156

1862.

HUNT

and Others

v.

ALLGOOD.

CASES AT THE JUDGES' CHAMBERS.

purpose, and must do it with all due promptitude. Here there has been obvious delay, and therefore I shall make the order; but as the Long Vacation is approaching, I will extend the time.

Order made, but allowing the plaintiffs until the 1st of October to deliver the case.

Trinity Term. In an action for wrongful dismissal, on a contract to pay salary, and also to give a share of the profits

during a cer

contract con

Coram Crompton, J.

SMITH v. ALLEN.

SUMMONS on the part of the defendant to refer the action to arbitration, under the Common Law Procedure Act, 1854, s. 11.

The action was covenant, on articles of employment at a certain salary, and with a certain share of the profits, tain time, the during a term of seven years, the breach being a wrongful dismissal before the end of the second year, whereby the plaintiff lost the salary and also his share of the profits. Before pleading, this summons was taken out.

taining a clause for re

ference to arbi

tration of disputes relating

to the construction of

The deed contained a clause that any dispute on the the deed, or as construction of the stipulations, or respecting the accounts, transactions and profits of the business, should be referred to arbitration.

to the accounts,

the contest being as to the right to dismiss for alleged neglect of duty: Held, that the action was not referable to

arbitration under C. L. P. Act, 1854, s. 11.

the

The plaintiff had been paid his share of the profits for
year in which he was dismissed.

Gibbons, for the defendant, in support of the summons.
Gates, for the plaintiff, contrà.

CROMPTON, J., said there did not appear to be any dispute respecting the construction of the deed, or as to the accounts, but the matter in controversy was, the right to dismiss the plaintiff, grounded on alleged misconduct; therefore the case did not come within the arbitration clause, and he could not make the order.

(a) M. Chambers moved the full Court but took nothing, and the

No order (a).

case went to trial. Vide post; et vide ante, p. 116.

Court of Queen's Bench, Guildhall, coram Cockburn, C. J.

SMITH v. ALLEN.

1862.

London Sittings.

Trinity Term.

dismissal from

an employmissal being for the jury justified; it is not only whether matter of

ment, the dis

DECLARATION, that on the 21st August, 1859, by deed In an action entered into by the defendant with the plaintiff, the defend- for a wrongful ant, in consideration of the covenants therein contained, covenanted to employ him as superintendent of his chemical manufactures for the term of seven years, and during the time pay him a certain salary, and also one-third of the profits. Breach, that the defendant, on the 24th August, 1861, wrongfully dismissed the plaintiff, whereby he lost salary and his share of the profits during five years,

residue of the said term.

fact existed his valid grounds

which would be

the

Plea: that by the deed the plaintiff was to devote his (entire) time and attention to the superintendence of the business (a), but that he did not do so, and that he habitually neglected it and absented himself (b); and further, that he was guilty of moral misconduct (c) and wilful disobedience (d) of the lawful commands of the defendant, in this, that he dishonestly and unlawfully abstracted from the defendant's counting-house a book of the defendant's; and when required by the defendant to return it refused so to do, and denied that he had taken it (d). For which said several causes respectively (e) the defendant dismissed him, as he lawfully might, &c. Issue.

(a) This would be implied, as to which and as to what justifies dismissal, vide Horton v. M'Murtoy, 29 L. J., Exch. 262; et vide Edwards v. Levy, 2 Fost. & Fin. 94.

(b) Habitual neglect or any one wilful act of misconduct will justify dismissal.

(c) This, per se, would be nothing, as too general; Burgess v. Beau

VOL. III.

N

mont, 7 M. & G. 962; and there-
fore it is to be construed with what
follows after the words "in this
that."

(d) This, of course, on any single
instance of felony or even dis-
honesty, would of itself justify dis-
missal.

(e) That is, for any one or either of them; any one being sufficient,

F.F.

of dismissal;

but whether

the dismissal were bonâ fide

and really on such grounds.

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