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feudant, 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.

Judges' Chambers, coram Keating J.

MASON v. WYTHE, Sded As Clerk To The Mid-
Level Commissioners.

rj Trinity Term.

OUMMONS on the part of the plaintiff for interrogatories interrogatories

against the nominal defendant. ^TeKT

The action was for negligence of the commissioners in '" an action

, against the

regard to the breaking down of a dam. clerk to com

After declaration and before plea the present summons nCgiigence by was taken out. *e commis


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


1862. the defendant has no information, he can say so; if he „' has, he ought to give it.

Mason ' D b

Wythe Keating, J., was of that opinion, and allowed the in


Order made (a).

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

Coram Blackburn, J.

Trinity Term.

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

not allowed on .

the part of the liver interrogatories to the defendant

action of eject- The act'on was ejectment against a copyhold tenant

mentonafor- upon a forfeiture; and

feiture. *

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 (hat 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).

Greening, contra.—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,

(«) In Horton v. Bolt, 26 L. J., gatories arc not allowable against Ex. 267, it was held, that interro- the defendant in ejectment.

the objection would clearly arise on the answers; and I 1862. do not think I should put the defendant to answer in such v^v-^/


a case. Therefore e.

No order. L'lstranoe.

Coram Byles, J.


Trinity Term.

©UMMONS on the part of the defendant, calling on the On a special

t'iisc hv wnv of

plaintiffs to show cause why the plaintiffs should not de- appeal from a liver their case on appeal within ten days, or why the de- [h^verdicTfor fendant should not be allowed to sign judgment. t,lc defendant,

°. J ° the defendant

The action was ejectment for charity lands, tried at the is not called Spring Assizes, 1861, verdict for the plaintiffs, subject to "nywep toleave to move to enter it for the defendant, on which, in wards settling

or advancing

June, 1861, a rule so to enter it was made absolute. Notice thecase;but

.... i • i i i if the plaintiff

oi appeal was given immediately, but nothing had been does not do so done, and in June, 1862, the present summons had been w,!omp|^udei taken out on the part of the defendant. the c°u"wiU

1 compel him to

Keane, on the part of the plaintiffs, showed cause.—The d°.soder.

'r' pain of nnal

defendant has misconceived his course, which, according judgment for

■ • i.i i i • „ , ._ the defendant

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 ■prima 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.



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 certain time, the contract containing a clause for reference to arbitration of disputes relating to the construction of the deed, or as 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.ll.

Coram Crompton, J.


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, 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.

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

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

Gibbons, for the defendant, in support of the summons.

Gates, for the plaintiff, control.

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.

No order (a).

(a) M. Chambers moved the full case went to trial. Vide poll; et Court but took nothing, and the vide ante, p. 116.

Court of Queen's Bench, Guildhall, coram Cockburn, C. J. 1862.

SMITH V. ALLEN. London Sitting,.

•p. Trinity Term.

-DECLARATION, that on the 21st August, 1859, by deed in an action entered into by the defendant with the plaintiff, the defend- aumS'frSi

ant, in consideration of the covenants therein contained, co- an employment, the dis

venanted to employ him as superintendent of his chemical missal being manufactures for the term of seven years,and during the time for the jury pay him a certain salary, and also one-third of the profits. "her°matter of

Breach, that the defendant, on the 24th August, 1861, fact existed , ' ,. . , , ,'. ._ , , °' 'which would be

wrongfully dismissed the plaintiff, whereby he lost his valid grounds

salary and his share of the profits during five years, the but whether'

residue of the said term. the *»"«»»}

were bona fide

Plea: that by the deed the plaintiff was to devote his and really on (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 (i); 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 mont, 7 M. & G. 962; and there

whicli and as to what justifies dis- fore it is to be construed with what

missal, vide Horton v. M'Murtoy, follows after the words "in thit

29 L. J., Exch. 202; ft vide Ed- that."

teards T. Levy, 2 Fost. & Fin. 91. (d) This, of course, on any single

(6) Habitual neglect or any one instance of felony or eren dis

v:Uful act of misconduct will justify honesty, would of itself justify dis

dismissal. missal.

(c) This, per te, would be nothing, (f) That is, for any one or either

as too general; Burgeas v. Beau- of thrin; any one being sufficient,


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