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 (r); but upon the award of a peremptory mandamus, in a case to which the stat. of Anne does not apply, a writ of error was holden not to lie (s). 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 (t). But now, by stat. 1 Will. IV. 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 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, [see the provisions of 1 & 2 Will. IV. 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

(r) 1 P. Wms. 351; Str. 1052; R. v. Manchester and Leeds Railway, 3 Q. B. 528; 1 G. & D. 338.

(8) Dean of Dublin v. The King, in

error, D. P., 21st April, 1724, 1 Bro. P. C. 73, Tomlins' ed.

(t) Bull. N. P. 204.

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 are to order by whom, and to whom, the same shall be paid (u). In a case where the proceedings had commenced before this act came into force, the court refused the application (x) for costs. Under this statute, the costs may be obtained (y) by a distinct motion after issuing of the writ.

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 stat. 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 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

(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, 1 Q. B. 751; 1 G. & D. 388;

and see Emery v. Corporation of Malmes-
bury, 3 Q. B. 577.

(x) R. v. Wix, 2 B. & Ad. 203.
(y) R. v. Kirke, 5 B. & Ad. 1089.

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.

CHAPTER XXIX.

MASTER AND SERVANT.

I. Of Actions by Servants against their Masters, for the Recovery of their Wages, p. 1101.

II. Of the Liability of the Master in respect of Contracts made by the Servant, p. 1104.

III. Of the Liability of the Master in respect of a tortious Act done by the Servant, p. 1106.

IV. Of Actions brought by Masters for enticing away Apprentices and Servants, and for Injuries done to their Servants,

p. 1111; and herein of the Action for Seduction, p. 1112; Witness, p. 1114; Damages, p. 1115.

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 mentioning the

(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.

time, that is a general hiring, and, in point of law (a), a hiring for a year.

If a clerk or servant (b), engaged at a fixed salary, payable quarterly or yearly, resign his employment in the middle of a quarter, he is not entitled to a proportionate part of his salary. But where there has been no misconduct on either side, 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 an understanding that a payment pro ratâ should be made.

In a case (c) 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. So 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 holden, that this contract could only be terminated at the end of a current year (d). A commission of bankrupt does not operate (e) 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 (ƒ). A master may discharge his servant at a moment's warning for misconduct (g), e. g., for being absent when wanted, sleeping from home at night without his master's leave; or in the case of a mercantile clerk (h), for asserting that he is a partner in the business, &c. 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 (i). Where a servant under a general hiring at the rate of so much per annum, is dismissed for misconduct, he cannot recover (k) any of the salary of the current year, even for the time

(a) Fawcett v. Cash, 5 B. & Ad. 904; 3 Nev. & Man. 177; see Baxter v. Nurse, 7 Scott, N. R. 801.

(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) Beeston v. Collyer, 4 Bingh. 309; 12 Moore, 552.

(d) Williams v. Byrne, 2 Nev. & P. 139; 7 A. & E. 177.

(e) Thomas v. Williams, 1 A. & E.

685; 3 Nev. & Man. 545.

(f) Per Littledale, J., Fawcett v. Cash, 5 B. & Ad. 908; 3 Nev. & M. 177. See Nowlan v. Ablett, 2 Cr. M. & R. 54.

(g) Robinson v. Hindman, B. R. London Sittings after M. T. 41 Geo. III., Kenyon, C. J., 3 Esp., N. P. C. 235. (h) Amor v. Fearon, 9 A. & E. 548. (i) Per Kenyon, C. J., in Robinson v. Hindman, ubi sup.

(k) Turner v. Robinson, 5 B. & Ad. 789; 2 Nev. & M. 829.