a peremptory mandamus, in a case to which the statute of Anne does not apply, a writ of error was held not to lie (p). 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 (q). But by 1 Will. IV. c. 21, [30th March, 1831,] s. 3, 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 (r). 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 Anne, are sometimes issued to officers and other persons, commanding them to 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 show 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 (s): 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 (t); and in such case, 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 are to order by whom, and to whom, the same shall be paid (u). The rule acted on by the court under this section is, that, where an application for a mandamus is made and opposed, the unsuccessful party pays costs, except under very peculiar circumstances (v). In a case where the proceedings had commenced before this act came into force, the court refused the application for costs (x). Under this statute, the costs may be obtained by a distinct motion after issuing of the writ (y). The stats. 9 Ann. c. 20, and 1 W. IV. c. 21, gave no power to a prosecutor to demur to the return, so that the decision of the court as to the validity of the return might be reviewed by a writ of error; to remedy which the 6 & 7 Vict. c. 67 was passed, whereby it is enacted, that in all cases in which the person prosecuting any writ of mandamus shall wish or intend to object to the validity of any return already made or hereafter to be made to the same, he shall do so by way of demurrer to the same, in such manner as is now used in personal actions: and thereupon the writ and return and demurrer shall be entered upon record; and such further proceedings shall be thereupon had as upon a demurrer to pleadings in personal actions; and the court shall thereupon adjudge either that the return is valid in law, or that it is not valid in law; or that the writ of mandamus is not valid in law: and if they adjudge that the writ is valid in law, but that the return thereto is not valid in law, then and in every such case they shall also by their said judgment award that a peremptory mandamus shall issue in that behalf; and thereupon such peremptory writ of mandamus may be sued out and issued accordingly, at any time after four days from the signing of the said judgment: and it shall be lawful for the said courts respectively, and they are hereby required, in and by (u) See Reg. v. Fall, 1 G. & D. 117; 1 Q. B. 636; Reg. v. Kelk, 1 G. & D. 127; 1 Q. B. 660; Reg. v. Corporation of Newbury, I Q. B. 751; 1 G. & D. 388; and sec Emery v. Corporation of Malmesbury, 3 Q. B. 577; R. v. Justices of Surrey, 9 Q. (v) R. v. Justices of Surrey, 14 Q. B. 684. (x) R. v. Wix, 2 B. & Ad. 203. their said judgment to award costs to be paid to the party in whose favour they shall thereby decide by the other party or parties. By sect. 2,-Whenever any such judgment as is hereinbefore mentioned shall be given, or whenever issue in fact or in law shall be joined upon any pleadings in pursuance of the said recited acts or either of them, and judgment shall be given thereon by any of the courts aforesaid, it shall be lawful for any party to the record in any of such cases who shall think himself aggrieved by such judgment to sue out and prosecute a writ of error, for the purpose of reversing the same, in such manner and to such court or courts as a party to any personal action in the said court may now sue out and prosecute a writ of error upon the judgment in such action; and such and the like proceedings shall thereupon be had and taken, and such costs awarded, as in ordinary cases of writs of error upon judgments of the said courts respectively in personal actions: and if the judgment of such court be reversed by the said court of error, the said court of error shall thereupon by their judgment not only reverse the same, but shall also in addition thereto give the same judgment which the court whose judgment is so reversed ought to have given in that behalf; and if by their said judgment they shall award that a peremptory writ of mandamus shall issue, the same shall and may accordingly be issued by the proper officer in the office from which such writs issue, as the case may be, upon production to him of an office copy of the said judgment of the same court of error; which shall be his authority and warrant for so doing provided always, that bail in error to the amount of fifty pounds, or such other sum as may by any rule of practice be appointed as hereinafter provided, shall be duly put in within four days after the allowance of the said writ of error; and the same shall afterwards be duly perfected according to the practice of the court wherein the said original judgment was given, otherwise the plaintiff in error shall be deemed to have abandoned his writ of error, and the same shall not be further prosecuted. And by sect. 3,-No action, suit or other proceeding shall be commenced or prosecuted against any person for anything done in obedience to any peremptory writ of mandamus issued by any court having authority to issue writs of mandamus. On motion for a mandamus to justices, however, the court will not, where they doubt whether the writ ought or ought not to be granted, direct it to issue merely in order that the justice may make a return, and obtain the protection of this section. And where a mandamus is directed to justices, they ought not to make a return merely to gain the protection of the statute, instead of obeying the writ (2). (z) R. v. Lord Dartmouth, 5 Q. B. 878. CHAPTER XXVIII. MASTER AND SERVANT. I. Of Actions by Servants against their Masters for the II. Of the Liability of the Master in respect of Contracts .. PAGE 1112 .. 1116 1119 III. Of the Liability of the Master in respect of a Tortious IV. Of Actions brought by Masters for enticing away Ap- Of the Action for Seduction Pleadings Evidence Damages 1124 1125 1126 1126 1127 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; 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 mentioning the time, that is in general a hiring for a year; but this is not an inflexible rule of law, but must be considered in connection with the special circumstances of the case (a). If a clerk or servant, engaged at a fixed salary, payable quarterly or yearly, resign his employment in the middle of a quarter, he is not upon that agreement entitled to a proportionate part of his salary. But where there has been no misconduct on either side, (a) Fawcett v. Cash, 5 B. & Ad. 904; Baxter v. Nurse, 7 Scott, N. R. 801; Down v. Pinto, 9 Exch. 327; S. C. 23 L. it may be left as a question for the jury whether the facts of the case raise a presumption that, at the time of the resignation, there was a new agreement that a payment for the broken quarter should be made (b). If the hiring be general, but the remuneration so much a month, an action accrues at the end of each month to recover the month's wages (c). 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 held, 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 (d). A clerk, whose salary was paid quarterly, dismissed in a broken quarter, brought an action for an improper dismissal, and recovered damages which did not include the services rendered by him during the broken quarter. He afterwards brought an action on the common counts for such services. It was held, that these could not be recovered in this form of action, as by bringing the first action he had treated the contract as still open, and could not afterwards treat it as rescinded, but that in the first action the jury ought to have been directed to take the fact of his actual service during the broken quarter into consideration in estimating the damages in the first action (e). Where the contract was to serve as reporter to a newspaper for one whole year from a certain day, and so from year to year to the end of each year commenced, so long as the parties should respectively please; it was held, that this contract could only be terminated at the end of a current year (f). But if there be a recognized usage in any particular as to the duration of the hiring, or the amount of notice required to determine it, that usage will be taken as tacitly annexed to the contract between the parties, unless excluded by the terms (g); and whether such custom is excluded by the terms of the contract is a question of law for the court (h). A commission of bankrupt does not operate as a dissolution of the contract of hiring between the bankrupt and his clerk (i). If a partnership be dissolved and another formed, and a servant of the old partnership enters into an agreement to serve the new, this operates (b) Lamburn v. Cruden, 2 M. & Gr. 253; 2 Scott, N. R. 533. See Huttman v. Boulnois, 2 C. & P. 512; Bayley v. Rimmell, 1 M. & W. 506. (c) Taylor v. Laird, 1 H. & N. 266; S. C. 25 L. J., Exch. 329. (d) Beeston v. Collyer, 4 Bingh. 309. S. C. 19 L. J., Q. B. 410. (f) Williams v. Bryne, 7 A. & E. 177. (g) Metzner v. Bolton, 9 Exch. 518; S. C. 23 L. J., Exch. 130. (h) Parker v. Ibbetson, 27 L. J., C. P. 236. (i) Thomas v. Williams, 1 A. & E. 685. |