Master and Servant - 4 Geo. 4. c. 34. 8. 3.-Second Imprisonment of Workman for Renewed Breach of the same Contract of Service-Rescission of Contract.

Under 4 Geo. 4. c. 34. s. 3. (which enables Magistrates to punish with imprisonment certain classes of workmen who are guilty of breaches of their contracts of service, or to abate the whole or part of their wages, or to discharge them from their employment) a workman may be convicted a second time for persisting, on his return from imprisonment, in absenting himself from the service of his employer, as the contract is not rescinded by the mere fact of imprisonment. And although the offender bona fide believes that a conviction will dissolve his contract, and opinions of Judges can be cited in support of such a belief, this is no lawful excuse, but only matter for the discretion of the Magistrates in imposing punishment.

[For the report of the above case, see 35 Law J. Rep. (N.s.) M.C. p. 193.]

BAIL COURT. 1866. May 7.

WATTS v. THE JUSTICES OF
KENT.

PEARCH v. THE JUSTICES OF
KENTA

Friendly Society - Rules-Reference of Disputes to Justices-Case stated-21 & 22 Vict. c. 101. s. 5.-20 & 21 Vict. c. 43. 3.2.

Where by the rules of a friendly society disputes between the society and a member are to be referred to Justices pursuant to the 21 & 22 Vict. c. 101. s. 5, such Justices may be compelled to state and sign a case for the opinion of the superior Court, under the 20 & 21 Vict. c. 43.

Where the secretary of such a society is summoned as such secretary before Justices to answer a complaint against the society,

and an order is thereupon made against the society, the society is substantially the appellant for the purpose of procuring a case to be stated under the 20 & 21 Vict. c. 43; and therefore when, after the application for the case, the secretary has resigned his post and given the Justice notice of withdrawal of the application, the society may nevertheless continue the proceedings, and obtain a rule ordering the case to be stated, in case of a refusal by the Justices.

[For the report of the above case, see 35 Law J. Rep. (N.S.) M.C. p. 190.]

1866. May 8.

THE WEARDALE DISTRICT HIGH

WAY BOARD, appellants, v. THE

TRUSTEES OF THE ALSTON

TURNPIKE TRUST, respondents. Turnpike-Deficiency of Trust FundHighway Rates-4 & 5 Vict. c. 59. s. 1.

By a local act regulating certain turnpikeroads the monies coming to the hands of the trustees were to be expended in defraying the expenses of management, not exceeding in any one year 300l., and next in maintaining and repairing the roads, but so that the amount expended for these purposes should not exceed 1,600l. in any one year, and then in paying off the debt owing by the trustees.

The revenue of the trustees exceeded 1,900l., and therefore there was a surplus over and above the amount authorized to be expended in the management, maintenance and repairs, 1,900l. was sufficient to defray all such expenses. The trustees, wishing to pay off their debt, obtained an order under 4 & 5 Vict. c. 59. s. 1. for payment of a portion of the highway rates towards the expense of repairing the turnpike-roads: - Held, distinguishing The Queen v. White, that as the revenue exceeded 1,900l., there was no power to make such order.

[For the report of the above case, see 35 Law J. Rep. (N.S.) M.C. p. 173.]

1866.

May 9, 10, 23.

NICHOLSON V. THE GUAR-
DIANS OF THE BRADFIELD
UNION.

Corporation-Contract not under SealOffer to return Goods before Action brought.

The guardians of the B. union accepted a tender by the plaintiff for the supply of Ruabon and Aberdare coal for the use of the workhouse. The coal was from time to time accepted by the guardians from the plaintiff, of which that which purported to be Aberdare was, and that which purported to be Ruabon was only in part, according to the contract. The guardians, after consuming a part of each sort of coal, discovered an inferiority in the Ruabon coal, and required the plaintiff to take back the unconsumed portion of the Aberdare coal which was according to contract as well as the Ruabon which was not, and offered before action to return it to him:-Held, that the fact that the contract was not under the seal of the guardians was no defence to an action for the price of the Aberdare coal.

The case was argued on the 9th and 10th of May by

J. J. Powell and Henry James, for the plaintiff; they referred to the following cases: Clarke v. the Guardians of the Cuckfield Union (1), Haigh v. the Guardians of the North Brierley Union (2), The London Dock Company v. Sinnott (3), Henderson v. the Royal Mail Steam Navigation Company (4), Sanders v. the St. Neots Union (5), Paine v. the Guardians of the Strand Union (6), Smart v. the Guardians of West Ham Union (7), De Grave v. the Mayor, &c. of Monmouth (8).

Harington (Griffits with him), for the defendants, cited, Beverley v. the Lincoln Gas Company (9), Lamprell v. the Billericay Union (10), The Mayor, &c. of Ludlow v.

89.

(6) Ibid. 326; s.c. 15 Law J. Rep. (N.S.) M.С.

(7) 11 Exch. Rep. 687; s.c. 25 Law J. Rep. (N.8.) Exch. 110.

(8) 4 Car. & P. 111.

(9) 6 Ad. & E. 829; s.c. 7 Law J. Rep. (N.S.) Q.B. 113.

(10) 3 Exch. Rep. 283; s.c. 18 Law J. Rep. (N.S.) Exch. 282.

Charlton (11), The East London Waterworks Company v. Bailey (12), Arnold v. the Mayor, &c. of Poole (13), Diggle v. the London and Blackwall Railway Company (14).

Cur, adv. vult.

The judgment of the Court was delivered, on the 23rd of May, by

BLACKBURN, J.- This was a case argued at the sittings after last term, before my Brother Lush and myself. The facts were, that the guardians of the Bradfield Union had advertised for tenders for the supply of Ruabon and Aberdare coals, for the use of the workhouse. The plaintiff, amongst others, sent in his tender for 70 tons Ruabon coals at 21s. 9d., and 60 tons of Aberdare coals at 22s. 3d. per ton; and on the 21st of June, 1864, by a resolution of the board of guardians made at a board meeting duly held, his tender was accepted, and on the 22nd of June the clerk of the guardians wrote to inform the plaintiff of this, and requested him to call with his sureties and execute the formal contract. This contract was in the form of a deed purporting to be made between the plaintiff of the one part and the guardians of the poor of the Bradfield Union of the other. The plaintiff attended and executed the deed, but not having brought his sureties with him, the execution by the guardians was postponed till he had procured them. He did afterwards procure his sureties to execute the bond, but, first, on account of some informality, and afterwards in consequence of some dispute, the seal of the guardians was never in fact affixed to the contract. Both parties, however, acted in the interval as if the contract had been formally executed. The plaintiff sent to the workhouse in pursuance of orders properly given to him four parcels of coals, for the price of which he brought this action. Two of these parcels, delivered on the 28th and 30th of June, amounting together to 21 tons, were ordered and supplied

(11) 6 Mee. & W. 815; s. c. 10 Law J. Rep. (N.S.) Exch. 75. (12) 4 Bing. 283; s.c. 5 Law J. Rep. C.P. 175. (13) 4 Man. & G.860; s. c. 12 Law J. Rep. (N.S.) C.P. 97.

(14) 5 Exch. Rep. 442; s.c. 19 Law J. Rep. (N.S.) Exch 308.

NEW SERIES, 35.-Q.B.

as Aberdare coals. The price of these at the contract price amounts to 231. 7s., and in fact they were such coals as by the contract ought to have been supplied as Aberdare coals. Two other parcels were sent in as Ruabon coals, one lot of 15 tons 9 cwt., on the 1st of July, which really were Ruabon coals, such as by the contract ought to have been supplied as Ruabon coals, and another lot of 7 tons 8 cwt., on the 2nd of July, which were not in fact Ruabon coals at all, and not such as to satisfy the contract. The two parcels delivered as Ruabon coals were shot into the same heap, so that, in consequence of the plaintiff's fault, the coal of the 1st of July, which was according to contract, and that of the 2nd of July, which was not, got mixed together.

On the 2nd of August the plaintiff sent in his account for the whole of these coals, amounting to 481. 4s. 3d., being the amount he would have been entitled to under the contract if the coals had all been according to contract. About 6 tons of the Aberdare coals were used in the workhouse, and about 6 tons of the coal, delivered in July, which consisted partly of Ruabon coal and partly of inferior coal mixed with it, were consumed in the workhouse before the inferiority of the last lot was fully brought to the notice of the board of guardians. On the 17th of August, the clerk of the guardians, by their authority, wrote to the plaintiff, requiring him to take back the whole of the coals, making no distinction between the Aberdare coals supplied in June, which were in fact according to the contract, and the Ruabon coals supplied in July, which were not in fact according to the contract. The plaintiff refused to take back any, and brought his action for the whole sum of 48l. 4s. 3d.

It is clear that the plaintiff cannot be in a better position than if the contract had been executed by the defendants. By the terms of the contract the guardians were to be at liberty, in case the articles delivered were not of the quality and sort contracted for, to return the same at the expense of the contractor, or give notice for the same to be sent for and fetched away; and to obtain a supply elsewhere and charge the contractor with the extra cost of this supply. It is clear, therefore, that the defendants

2 A

had a right to require the plaintiff to take away so much of the coals remaining as were not according to contract; and we think that as the two parcels sent in in July were mixed together, so that the heap was partly Ruabon and partly not, the whole of these coals must be considered as not according to the contract, though had they been kept separate, one parcel would have been according to contract. The plaintiff cannot therefore, in any view, recover for the price of so much of these latter coals as were not consumed; and the defendants are also entitled to charge him with the extra cost of the supply of coal in their place'; and the six tons of this inferior mixture which were actually used cannot be charged for at the full contract price. The plaintiff, therefore, cannot recover for the whole sum he claims.

But the defendants had no right under the contract to require the plaintiff to remove the portion of the Aberdare coals, which in August still remained unconsumed, those coals having been delivered in June, and being in all respects according to the contract. There is indeed a term in the contract that a proper bill of parcels shall be delivered with each lot of goods sent in, or the guardians may reject them; and it appears that the bills of parcels for the Aberdare coal were not sent in till some time after the delivery; but, though this would have entitled the defendants to refuse to receive the goods so sent in, and, probably to send back the whole if inadvertently taken in, provided they did so promptly, it did not authorize them to return a part of the goods so sent in, especially after such a lapse of time. The plaintiff, therefore, if the contract had been sealed with the seal of the corporation, would have been entitled to recover, but not the whole of his demand. At the time of the argument the amount of the deductions were calculated, and it appeared he would be entitled to 26l. 10s.

There remains, therefore, only the question, whether the fact that the defendants are a corporation and that the contract was not under their seal makes any difference as to the whole or part of this demand. Mr. Harington argued that the price of those coals which still remained unconsumed, and which the corporation were

ready and willing and offered before action to return, stood on a different footing from the price of the portion consumed, and that, as to those at least, the plaintiff could not recover; but we think that there is no such distinction. We think that if the defendants are bound to pay for any of the coals as goods sold and delivered, their liability was fixed as soon as the coals, being according to contract, were received, so that there remained nothing to be done but to pay for them; and that this liability could not be got rid of by any subsequent offer to return the coals which the plaintiff was not bound under the contract to accept, and which, if he had at that time accepted, would by no means have put him in the same position as if the goods had never been kept by the defendants. We think, therefore, that the only question is, whether the absence of a sealed contract does, under such circumstances, prevent the plaintiff from recovering.

It is not necessary to express any opinion as to what might have been the case if the plaintiff had been suing on this contract for a refusal to accept the coals, or any other breach of the contract, whilst still executory, or how far the principle of The London Dock Company v. Sinnott (3) would then have applied to such a contract. The goods in the present case have actually been supplied to and accepted by the corporation; they were such as must necessarily be from time to time supplied for the very purposes for which the body was incorporated; and they were supplied under a contract, in fact, made by and with the managing body of the corporation. If the defendants had been an unincorporated body, nothing would have remained but the duty to pay for them. We think that the body corporate cannot, under such circumstances, escape from fulfilling that duty, merely because the contract was not under seal. The case of Clarke v. the Cuckfield Union (1) is in its facts undistinguishable from the present We are aware that very high authorities have questioned the soundness of that decision, and, as pointed out in the judgment in that case, there are prior decisions in the Court of Exchequer which it is difficult to reconcile with it. We think, however, that, as far as it extends to such a case as the present at least, the case was rightly decided. There may be cases in which the circumstances are different from those in Clarke v. the Cuckfield Union (1) and the present case, and which would still be governed by the principles laid down in the decisions in the Exchequer. Those we leave to be decided when they arise; but so far as these prior decisions are inconsistent with the decision in Clarke v. the Cuckfield Union (1), we prefer to follow that authority, which we think founded on justice and convenience. We therefore give judgment for the plaintiff for 26l. 10s. Judgment for the plaintiff.

Reward Apprehension of OffenderInformation leading to.

The defendant's shop having been broken into and watches and other property having been stolen, he offered a reward to be given "to any person who will give such information as shall lead to the apprehension and conviction of the thief or thieves." Shortly afterwards R. brought one of the watches to the plaintiff, who gave information to the defendant, in consequence of which R. was apprehended with another of the watches in his possession. While in custody, he told the police where the thieves might be found, and they were taken at that place with some of the stolen property upon them, and were subsequently convicted of the burglary. In an action to recover the amount of the reward, Held, by Mellor, J. and Shee, J. (Blackburn, J. dubitante), that the information given by the plaintiff was not so remote that the question ought not to be left to the jury to say whether he did give such information as led to the apprehension and conviction of the thieves.

In this case the declaration was framed upon a handbill issued by the defendant, offering a reward in the terms hereinafter set out. It alleged that the plaintiff gave such

information as led to the apprehension and conviction of the thieves, and such information as led to the recovery of part of the property, but that the defendant had not paid him the reward.

The declaration also contained counts for work and services rendered, and upon an account stated.

The defendant pleaded, that the plaintiff did not give such information as led to the apprehension and conviction of the thieves.

He also pleaded payment into court of 117. in respect of such information given by the plaintiff as led to the recovery of part of the stolen property.

To the residue of the declaration, he pleaded never indebted.

At the trial, which took place before Blackburn, J., at Guildhall, at the Sittings after Michaelmas Term, 1865, it appeared that the shop of the defendant, a watchmaker, on Cornhill, had been broken open upon or about the 4th of February, and that a number of watches and other goods were stolen. The defendant issued a handbill, the material part of which was as follows:

"A reward of 250l. will be given to any person who will give such information as shall lead to the apprehension and conviction of the thief or thieves, and a further reward of 750l. will be paid for such information as shall lead to the recovery of the property, or in proportion to any part thereof recovered."

The plaintiff worked as a jeweller, and on the 14th of February one Roberts brought a watch to his shop and asked him to alter it. The plaintiff consented to do so, but went to the defendant and told him that the watch was one of those which had been stolen, and that Roberts was coming to his shop again in the afternoon. The police were sent there, and Roberts was taken into custody, having another of the stolen watches upon him. He was kept in prison, and was visited by some female friends. On the 17th of February he gave information to the police that the thieves were to be found at a particular eel-pie shop, which he named, and there they were found, and were ultimately tried and convicted. There was some doubt as to whether Roberts knew of the house where the thieves were at the time of his being appre