I contend that on the authority of Hamillon v. Watson, 12 Cl. & Fin. 109, there must be a fraudulent concealment in order to release the surety. I have also leave to move to enter the verdict, if there was no evidence to go to the jury, and I submit there was no evidence of any fraud. [WILLIAMS, J.—If the Judge had said, "these facts constitute fraud," he would have been right.] [KEATING, J.-If Thacker had been guilty of embezzlement, would not you have been bound to tell it] I should not concede it; but it would be difficult to argue, and is a very different case from the pre sent one. WILLIAMS, J.-We are all agreed that there was no misdirection, but some of us doubt if there was any evidence to go to the jury. If there was, the direction was right. It is no misdirection not to ask whether there is fraud, if the jury are told that certain facts would constitute fraud. 15 APRIL, 1863. Rule nisi to enter the verdict. O'Malley, Q.C., and Sir G. Honyman, showed cause, citing The 57th sect. of the General Turnpike Act (3 Geo. 4, c. 126), which provides that every agreement for taking the tolls shall be signed by the proposed lessee, and by North British Insurance Company v. Lloyd, 10 two sureties on his part, does not prevent the trustees of Ex. 523; Railton v. Mathews and Others, 10 Cl. & Fin. 934; and contending that any one would suppose from the document that Thacker was strictly acting up to the recited agreement, instead of which he had been allowed to get considerably in arrear. Collier, Q.C., supported the rule, and urged, that the only argument against the plaintiffs was their not having communicated the fact of Thacker owing them 1,270. It was said they knew he had received the money, but it appeared they did not. All they knew was, that his bills were not paid at maturity. [ERLE, C.J.—But it was admitted all through the case, that he was so indebted that his masters were dissatisfied with him; they knew he was a defaulter.] All they knew was, that he had not paid the bills. The difference is, one was a mere debt, the other would be very nearly embezzlement. the road from treating such an agreement us valid, if they choose to do so, though it has been signed by the lessee only without sureties. This was an action for the rent of tolls by the plaintiff, as clerk to the commissioners of a turnpikeroad, against the defendant as lessee of the tolls. In accordance with the 55th sect. of the General Turnpike Act (3 Geo. 4, c. 126), the tolls were put up to auction, and the defendant was the highest bidder. By the 57th sect. of the same Act, an agreement is to be afterwards signed by the clerk to the trustees, and also the lessee, with two sureties on his behalf; and such agreement is to be as valid as if it were a deed. The following agreement was drawn up and signed by the plaintiff and defendant, but it was not signed by any sureties for the latter : "I, the undersigned John Stanford, of Tewkesbury, in the county of Gloucester, toll-gate keeper, do Their act was a mere non-communication; they hereby agree to take the tolls of the Wootton and were never asked. Courteenhall gates, at the sum of 4117., and I do 1 are at his option, and he may enforce them or not as he thinks proper. hereby agree, on my part, to fulfil the conditions for letting the tolls, and do hereby propose Joseph Dickins, of Northampton, fishmonger, and William WILLES, BYLES, and KEATING, JJ. concurred, Whitbread, of Courteenhall, toll-gate toll collector, as my sureties, dated this 3rd day of October, 1861. BYLES, J., observing that there was, in effect, a "Deposit 341. 5s. "John Stanford, lease of the tolls, and that the defendant had actually "A. B. Markham, Clerk to paid a month's rent by paying the deposit. Trustees." Then follow the conditions of sale, the only one material to this case being the third, in these words :"One month's rent in advance to be immediately paid down as a deposit by the person taking the said tolls, which is to be forfeited if such taker shall refuse or neglect to execute the usual articles of agreement, with two sufficient sureties to be approved by the trustees prior to the 1st day of November at the office of Mr. A. B. Markham, attorney, at Northampton, or shall refuse or neglect to enter on the said tolls, or having executed such agreement with sureties, and having entered on the said tolls, shall not in all things fulfil and perform the covenants conditions and agreements to be contained in such agreement." The deposit was paid, but the defendant refused to execute a lease when called on to do so, and refused to have anything further to do with the tolls. The action came on for trial at the Northampton Assizes, before Pollock, C. B., who nonsuited the plaintiff, saying, the action ought to have been against the defendant for refusing to execute the lease, for that, though he had forfeited his deposit, the agreement was not a valid one for the purpose of letting the tolls under the 57th sect., as it had not been signed by the two sureties. His Lordship, however, gave the plaintiff leave to move to set aside the nonsuit and enter a verdict, in pursuance of which a rule nisi was obtained by Field in Michaelmas term; against which, Beasley now showed cause, citing, Bell v. Nixon, 9 Bing. 393; and Oldroyd v. Crampton, 4 Bing. N. C. 24. Field supported the rule, and cited, Shepherd v. Thompson, 21 L. J. Q. B. 263. He was then stopped by the Court, and Markham, on the same side, was not called on. ERLE, C.J.-It seems to me that the declaration is abundantly proved. By the conditions of sale the highest bidder is to be the termor of the tolls. The 57th sect. provides that all agreements signed by the trustees, or their clerk, shall be valid, though not by deed. The defendant was the highest bidder, and in his agreement promised to perform all the conditions ; but it appears that the sureties did not sign. It is admitted on the part of the defendant, that the agreement would have been perfectly valid if it had been signed by them. Can it be said to be void because the trustees did not insist on a clause introduced for their benefit? All terms for the benefit of a lessor C. P. 17 APRIL, 1863. Rule absolute. COOK v. SHERWOOD. Salary-Wrongful Dismissal. A master paying a clerk his salary two days before the end of the quarter, and telling him that the business is disposed of, does not necessarily amount to a dismissal, and therefore his service and salary may continue during the next quarter. This was an action for a quarter's salary, from Michaelmas to Christmas, 1862, tried before Cockburn, C.J., at Hertford. It appeared that the defendant was a manufacturer of plated goods, living in Birmingham, and the plaintiff was in his employ, keeping The In a warehouse in London. Plaintiff had received his salary for several quarters, but on the 27th September, 1862, the defendant, finding his business did not answer, assigned it away, and told the plaintiff of that fact, paying him his salary up to the 29th. plaintiff was not dismissed in any other way; but, on going to resume his employment, he found the shutters up, and brokers in possession of the premises. October the plaintiff went down to the defendant's warehouse in Birmingham, to ask for employment, and was informed that his services were no longer required. The defendant's counsel objected that the action was misconceived, and that if it lay at all, it was for a wrongful dismissal. The Lord Chief Justice offered to amend, but it was objected that the contract was not one which could be performed within a year, and was not in writing, as required by the Statute of Frauds. His Lordship then left it to the jury whether, in point of fact, there was not a continuing service; whereupon they found a verdict for the plaintiff, the defendant having leave to move to enter a non-suit. Watkin Williams moved accordingly, contending that the plaintiff was actually dismissed on the 27th September, and that it was useless to amend the declaration, there being no contract in writing between the plaintiff and defendant; the original contract having been between the defendant's father (who had given up his business to his son) and the plaintiff. [WILLES, J.-Is there not evidence for the jury of a yearly hiring with the defendant, from which the plaintiff is entitled to be paid on being dismissed ?] It is submitted that there is not. ERLE, C.J.-We refuse a rule to enter a non-suit. The plaintiff was actually in the employ of the defen dant several quarters, and indebitatus assumpsit lies for his salary. He found the doors closed, but no notice had been given to him. There was certainly service | up to the interview in October, and the question of entering a verdict for a smaller sum is not reserved to us. The rest of the COURT (Willes, Byles, and Keating, JJ.) concurred. Rule refused. DOLMAN v. TELT. [BYLES, J.-You contend that Hudson's authority to receive was contingent on his holding the cheque.] Of course, when the defendant paid the money, he never obtained possession of the cheque. The Judge left the question of the attorney's letter, being a revocation, to the jury. I contend that it was a revocation in point of law. PER CURIAM.-We will speak to Cockburn, C.J. 18 APRIL, 1863. THE COURT (Erle, C.J., Willes, Byles, and Keating, JJ.) were unanimously of opinion there should be C. P. 16, 18 APRIL, 1863. Cheque-Revocation of Authority. A cheque was drawn by T in D's favour. D authorised T to pay the amount to H. The cheque not being paid, D's attorney wrote a letter to T, threatening an action; and afterwards T paid the amount to H.:Held, that the letter did not in law amount to a revocation of H's authority to receive; but that it was a question of fact to be left to the jury. Action on a cheque for 497., drawn by the defendant in favour of the plaintiff. The plea was payment. The action was tried before Cockburn, C.J., and a verdict found for the plaintiff. It was admitted on both sides that the defendant had paid the money to one Hudson; and the only point in dispute was, whether payment to Hudson amounted to a payment to the plaintiff. The plaintiff (a female) was admitted to be on the most intimate terms with Hudson, and was introduced by him to the defendant for the purpose of borrowing money of him. The defendant agreed to advance her 1217. on the security of a bill of sale on her furniture. He gave her 727. in cash and this cheque. When the cheque was given the plaintiff told him it would be all the same whether he paid it to her or to Hudson, and very shortly gave Hudson 177. on account. Afterwards, not being satisfied with his security, or from some other reason, he stopped the cheque at his banker's, and, consequently, it was not paid when presented. he The plaintiff's attorney then wrote to the defendant, threatening an action if the money was not paid. The next day the defendant's attorney called on the plaintiff's attorney, and requested that the writ might not be issued, as an appointment had been made for paying the money. This was found not correct; but it appeared that soon afterwards the money was paid to Hudson, who absconded with it. The plaintiff had possession of the cheque all the time. Prentice moved for a new trial, on the grounds of misdirection, and that the verdict was against the evidence. He contended that the letter demanding payment was a revocation in law of Hudson's authority to receive the money, and that the jury should have been so directed. 1 The words, "It is agreed the lessee shall not underlet without the lessor's consent in writing," do not, per se, enable the landlord to maintain ejectment if the tenant underlets. This was an action tried before Byles, J., on the last day of Hilary Term, and was brought against the defendant for falsely representing to the plaintiff that he had authority to let certain premises. It seems the defendant held the premises under an agreement containing the following words, "It is agreed the said Coffin shall not underlet without the consent of (the lessor), in writing." The plaintiff entered into the possession of the premises, and the defendant's landlord brought ejectment against him. The plaintiff suffered judgment by default, and brought this action. The learned Judge directed a nonsuit to be entered, ruling that the plaintiff was not necessarily turned out of the premises, and that he might have defended the action successfully, as the words in the agreement were not sufficient to create a forfeiture of the lease, but merely gave the landlord a right of action for the breach of agreement. Eyre Lloyd moved to enter the verdict for the plaintiff, citing Doe d. Henniker v. Watt, 8 B. & C. 308. THE COURT (Erle, C.J., Willes and Keating, JJ.) were unanimously of opinion there should be indebted. The point turned on the admissibility of the following document, which was tendered in evidence :-"I, James and Thirza Davies, have this day borrowed of Coney, 300l. at 4 per hundred, payable yearly." This was objected to, on the ground that it was either a promissory note or an agreement, and required a stamp accordingly. The learned Judge received the document, and a verdict was found for the plaintiff, leave being reserved to the defendant to move to enter the verdict for him if the document was inadmissible, the plaintiff having leave to stamp it, if the Court should be of opinion that it ought to be stamped, and that it was an agreement. ERLE, C.J.-The question in this case was, who was the owner of the green lane, the plaintiff owning the field on one side of it and the defendant that on the other. The jury found that each was en. titled to half the road ad filam viæ. The defendant complains of misdirection, because it was not left to the jury to decide whether the soil of the road did not belong to the owner of Coptner's Close. I am of opinion that there was no evidence whatever, and no presumption as to his having the ownership of the soil; he had merely a private right of way over it. The rest of the COURT (Willes, Byles, and Keating, Rule refused. Cole moved accordingly, and said he felt bound to JJ.) concurred. mention Melanotte v. Teasdale, 13 M. & W. 216, where it was held that no stamp, either as a promissory note or agreement, was requisite for a document in the following terms :-"1839, November 11, I. O. U. 457. 13s., which I borrowed of Mrs. M. and to pay her 5 per cent. till paid, R. T." But he contended this case was distinguishable. WILLES, J.-The Judge, by the Common Law Procedure Act, has no power to reserve such a point, unless he decides against the admissibility of the unstamped document. PER CURIAM (Erle, C.J., Willes, and Keating, JJ.). Rule refused. 66 This was an action of trespass, tried before Crompton, J., at Hereford, under the following circumstances:There was a green lane, leading to a field called Coptner's Close," over which the owner of Coptner's Close had a right of way for the passage of carts, horses, &c. The field, on one side of the lane, belonged to the plaintiff, and that, on the other, to the defendant; and the defendant obstructed the lane by digging a trench across it. The plaintiff brought this action, and the Judge asked the jury whether, in the absence of evidence to the contrary, they would not believe that half the lane belonged to the plaintiff, and half to the defendant. The jury found that it did, and, therefore, gave their verdict for the plaintiff. Piggott, Serjt., inoved for a new trial, on the ground of misdirection, because the learned Judge had refused to ask the jury, whether the soil of the lane did not belong to the owner of Coptner's Close. He cited, Grose v. West and Others, 7 Taunt. 39. Bill of Exchange-Presentment-Notice of Dishonour. A subsequent promise to pay made by the drawer of a bill of exchange to the indorsee will (at any rate after verdict) be held a waiver of the want of presentment, and notice of dishonour. Action by indorsee against the drawer of a bill of exchange tried before the Secondary. The pleas denied presentment and notice of dishonour. The defendant made the bill payable at his own house. The plaintiff discounted it, and when it became due, called and told the defendant's wife that he had called about the bill, but said no more. He afterwards met the defendant, who promised to pay. A verdict was found for the plaintiff. Littler, for the defendant, moved to set it aside, contending that the plaintiff could not recover on these pleadings, and that if he relied on the subsequent promise as a waiver, he should have replied it specially, and not have taken issue on the pleas. He cited Trespass-Board of Works-Demolition of a House. The 76th sect. of the Metropolis Local Management Act (18 & 19 Vict. c. 120) gives a local board summary powers in certain cases to pull down buildings, respecting the erection of which due notice has not been given Held, nevertheless, that they are not entitled to exercise these powers without first hearing what the owner has to allege in his defence. This action was brought for pulling down a partlybuilt house. It was tried before Willes, J., on 27th November, 1862, and a verdict was found for the plaintiff. It appeared that the plaintiff and his father (who was also a builder) had been for some time on bad terms with the defendants, and never could satisfy them as to the notices which ought to be given under the Metropolis Local Management Act, 18 & 19 Vict. c. 120. The 76th sect. of this Act requires that "before beginning to lay or dig out the foundation of any new house or building within any parish or district, or to rebuild any house or building therein, and also before making any drain for the purpose of draining directly or indirectly into any sewer under the jurisdiction of the vestry or board of or for any such parish or district, seven days' notice in writing shall be given to the vestry or board by the person intending to build or rebuild such house or building or to make such drain, and every such foundation shall be laid at such level as will permit the drainage of such house or building in compliance with this Act, and as the vestry or board shall order. And the vestry or district board shall make their order in relation to the matters aforesaid, and cause the same to be notified to the person from whom such notice was received within seven days after the receipt of such notice; and in default of such notice, or if such house, building, or drain, or branches thereto, or other connected works and apparatus and water-supply be begun, erected, made or provided in any respect contrary to any order of the vestry or board, made and notified as aforesaid, or the provisions of this Act, it shall be lawful for the vestry or board to cause such house or building to be demolished or altered, and to cause such drain or branches thereto and other connected works and apparatus and water-supply to be relaid, amended, or remade, or, in the event of omission, added as the case may require; and to recover the expenses thereof from the owner thereof in the manner hereinafter provided." There appeared some doubt whether a proper notice had ever been given in this case, the plaintiff alleging that he had sent one, and the defendants denying that they had ever received it; but it was allowed on both sides that instead of waiting seven days, the plaintiff commenced digging the foundations of his house within five days from the time at which he alleged he had sent his notice to the defendants. He proceeded without interruption till the house had been built as far as the second story, when on the night of the 30th of July last the defendants sent their surveyor and contractor, with about thirty men, and by torch-light demolished the house, and afterwards went before a magistrate and compelled the plaintiff to pay the expense of so doing. For this alleged trespass the action was brought. George Denman, Q. C., showed cause, contending that the 76th sect., which was a most arbitrary one, did not set aside the Common Law of the land, viz., that no one should be judged without being heard, and that the defendants, whether acting judicially or ministerially, should have summoned the plaintiff before they proceeded to pull down his house. He cited Dr. Bentley's Case, 1 Strange, 557; Painter v. Liverpool Oil Gas Company, 3 A. & E. Capel v. Child, 2 C. & J. 558; Rex v. Beren and Another, 6 T. R. 198; Tinkler v. Wandsworth Board of Works, 27 L. J. Poplar Board of Works v. Knight, 28 L. J. M. C. Clothier v. Webster, 31 L. J. C. P. 316. Bovill, Q. C., and B. C. Robinson, supported the under the 76th sect., and that the powers therein rule, and contended that the defendants were justified given, though arbitrary, were necessary, as they could not ascertain whether the house had been properly built or not without pulling it down. They referred to some remarks of Parke, B., in ERLE, C.J.—I am of opinion this rule must be discharged. The defence put forward by the defendants is based on the 76th sect. The plaintiff contends that the powers there granted are subject to the qualification repeatedly recognised, that no man is to be. deprived of his property without an opportunity of being heard. This qualification must be taken as |