thority; and, if he had, the defendant's attempt at overreaching would justify the plaintiff in repudiating the contract.

This letter was addressed to the defendant, and returned to the plaintiff with the post-office mark, "refused."

Taddy, Serjt., submitted, that this letter could not be evidence against the defendant, as it had not reached him.

TINDAL, C. J. You cannot get rid of the effect of a notice by refusing to take it in.

The hair was not sent back till a day or two after the action was commenced, and, when it arrived at Horncastle, the defendant refused to take it in, and it

remained at the wharf.

Taddy, Serjt., for the defendant. The plaintiff has ratified the conduct of Sudbury, and meant to take advantage if he could of any higher price that the article might fetch. Why did he not return it sooner? He is concluded, as he did not send it back till after the action was brought.

Spankie, Serjt., in reply. The plaintiff only kept the horse-hair long enough. to see whether it was worth accepting, and this does not bind him to an acceptance of it. Sudbury, the traveller, had no knowledge of the value of horse-hair. There was no offer of sale on the plaintiff's *part to Buckingham; he [*512 was only taking the benefit of his judgment. The plaintiff only kept it a week or ten days, for, on the 28th of October, the defendant writes acknowledging that he had received an intimation from the plaintiff on the subject, and the horse-hair only arrived on the 14th. The bargain was negligently made, without authority, by a person ignorant of the nature of the article, and that gives the plaintiff a reasonable time to see if the horse-hair could be turned to account. According to the first arrangement, the hair was to be sent to Gardners for sale, and not to the plaintiff. It is also an attempt at imposition on the part of the defendant, as the horse-hair sent was not of the value of Gardners' prices.

TINDAL, C. J. The only question in this case is, whether the contract made by Sudbury, to take horse-hair as payment instead of money, has ever been rati. fied by Howard, the plaintiff; because, undoubtedly the situation of Sudbury, who was merely a traveller, authorized to take orders, could not, in itself, give him the power to make such a contract. Therefore, we must look at the conduct of the plaintiff afterwards. The first arrangement was very different in its circumstances from the last; because, according to that, the hair was not to be sent for the plaintiff to sell, but to Gardners, who were to pay the plaintiff the proceeds in money. Undoubtedly Sudbury did take upon him to receive the horsehair in satisfaction of the debt, at the current prices mentioned in Gardners' letter. In point of law, as far as we have any evidence, there was not any prior authority. Sudbury himself says he never did anything of the kind before. It is for you to say whether the plaintiff was dealing with the horse-hair as his own, or whether he was only trying to ascertain its value. For he had a right, when an article came, which was fastened in bags, and in which he was not a dealer, before he adopted the act of his agent, to see what the real value of the commodity was, provided he did not keep it an *unreasonable time. It is for you to say, whether the acts of the plaintiff were those of a man dealing with the article as if it was his own or not. That is the only question in the cause. Verdict for the defendant. Spankie, Serjt., and Tomlinson, for the plaintiff. Taddy, Serjt., for the defendant.

[Attorneys-Amory & Co., and Norris, A. & A.]

[*513

Vide Doctor and Student, p. 286; Paley on the Law of Principal and Agent, pp. 220 and 221; and Ward v. Evans, 2 L. Raym. 930; and 2 Salk. 142.

COURT OF KING'S BENCH.

ADJOURNED SITTINGS IN LONDON, AFTER TRINITY TERM, 1830.

BEFORE LORD TENTERDEN, C. J.

GOOD v. CHEESMAN. (a) July 10.

A tradesman holding a situation in a public office, being indebted to several persons, they met together, and signed an agreement, in which they stated, that he, being unable to make immediate payment, they agreed to accept payment by his covenanting and agreeing to pay to a trustee of their nomination, one third of his annual income, and executing a power of attorney as a collateral security. The debtor did not sign the agreement, but attended the meeting, and expressed his willingness to comply with its terms. Before anything had been done in execution of the agreement, one of the creditors, who had signed it, brought an action against the defendant for his original debt:-Held, that he could not recover. ASSUMPSIT on two bills of exchange, given for the price of goods sold and delivered. The plaintiff was a maltster, who had supplied goods to the defendant, who was a measurer in the Dock-yard, at Portsmouth, and also was *514] in business as a brewer, at Portsea.

The usual formal proof having been given on the part of the plaintiff; on the part of the defendant, a person named Rogers was called, who stated that he was a creditor of the defendant; that he attended a meeting on the 31st October, 1829, at which two other creditors and the plaintiff Good were likewise present, and that they all signed an agreement in these words :

"Whereas William Cheesman, of Portsea, brewer, is indebted to us, for goods sold and delivered; and, being unable to make an immediate payment thereof, we have agreed to accept payment of the same, by his covenanting and agreeing to pay to a trustee of our nomination, one-third of his annual income, and executing a warrant of attorney, as a collateral security, until payment thereof. As witness our hands this 31st of November, 1829."

This agreement was not signed by the defendant, but the witness stated that he was present at the meeting, and expressed his willingness to act upon the agreement. The witness added, that the defendant's salary, as Measurer, was 1807. a year; and it was arranged at the meeting, that if a creditor named Gloge, who did not attend it, should come into the arrangement for giving time, then an additional sum of 201. a year was to be taken from the salary, and added to the third, which was to be paid to the trustee. He further stated that he was willing that the agreement should be carried into execution; but, on his crossexamination, he admitted that he had not received any money in pursuance of it, because there was a running account between him and the defendant.

The defendant's attorney was also called as a witness on his behalf, and stated, that he attended the meeting, considering himself particularly as acting for the defendant, but that he acted for the other parties also; that the *plaintiff *515] caled at his office, about three weeks after the meeting, and requested a sight of the agreement, and being told by the witness that he could not lay his hand on it at the moment, said "I shall not fulfil the agreement, I shall be satisfied with nothing less than 10s. in the pound;" adding, that he would ruin the defendant if he did not get that, though it should cost him 2007. On his cross-examination he said, that Gloge put an execution into the defendant's house, about the beginning of the year 1830, on a judgment several years old; and that the execution was two or three months after the commencement of the present action.

On the part of the plaintiff, in reply, a letter was put in, written by the defendant to him, requesting him, if he saw Woolrich (who was one of the creditors

(a) Omitted, ante.

that attended the meeting), to tell him to come to him, and also to come himself, as some objection had been made to the agreement on the part of Gloge.

Scotland, for the defendant, contended, that, on the facts proved, although the agreement did not convey the property, yet, as the other creditors considered themselves bound by it, that was a sufficient consideration. It would be a fraud on the other creditors, who were induced to join in the agreement by the plaintiff's signing it, if he could now obtain an advantage over them by succeeding in this action. And, with respect to the letter put in for the plaintiff, in reply, it was clearly applicable only to the arrangement respecting Gloge's claim, which constituted a separate agreement.

Follett, for the plaintiff. Such an agreement as that relied on is no answer, unless something has been done upon it. It is neither accord nor satisfaction of the debt, and the cases are express, that, if the agreement is not under seal, it is no answer unless something is done upon it. *Fitch v. Sutton, 5 East, [*516 230, Steinman v. Magnus, 11 East, 390. In one of these cases, the acts done were relied on as satisfaction. But here there is nothing to bind the defendHe might have refused to comply. It is only an agreement by the creditors, that they will take their debts in this way, if certain things are done, which the defendant is not bound to do. The letter of the defendant shows that there was an objection by Gloge, and the matter was not settled. It may be assumed, that the defendant considered the agreement at an end, on account of Gloge's objection.

ant.

Lord TENTERDEN, C. J. (in summing up), said-The only question of fact is, whether this agreement was to stand, if Gloge did not come into the arrangement. If you think the agreement was to stand for one-third of the salary, if Gloge did not come in, and that, if he did, 207. was to be added; then I should recommend you to find your verdict for the defendant; and the plaintiff shall have leave to move to have a verdict entered for him, if, on consideration, the Court shall think that the agreement is not an answer to the action. The only doubt I feel with reference to the decided cases arises from the circumstance that the defendant in this case was not to do the previous acts. If it had been for the defendant to name the trustee, then I should have thought that the agreement was no answer, unless it had been shown that that had been done. But the defendant in this case could not do it, as the trustee was to be a person nominated by the creditors. Verdict for the defendant, with leave, &c.

Follett, for the plaintiff.
Scotland, for the defendant.

[Attorneys-T. Minchin, and Conry.]

*IN the ensuing Michaelmas Term, Follett obtained a rule nisi, pursuant to the leave given at the trial; which rule came on to be argued in Easter Term, 1831.

[*517

Scotland showed cause against it, and contended, that the agreement was binding on the plaintiff, as, through his concurrence in it, the interests of third parties, viz. the three other creditors who signed the agreement, were affected. If this sort of transaction fell within the principle of accord and satisfaction (which seemed very doubtful, it being rather in the nature of a release or discharge of the original contract, by substituting a new agreement, on which each of the parties to it had a remedy by action, and might recover damages for a breach of it), no doubt there must be a new executed consideration, amounting to satisfaction, moving from the defendant. But, in this case, it was sufficient to maintain the agreement, that the other creditors had been induced by the plaintiff's joining in the agreement to relinquish each of them a certain portion of his rights. He cited Boothbey v. Sowden, 3 Camp. 175, Cockshott v. Bennett, 2 T. R. 763, Steinman v. Magnus, 11 East, 390, Cranley v. Hilary, 2 M. & S.

120, Tatlock v. Smith, 6 Bing. 339, S. C. 3 M. & P. 676, (a) Butler v. Rhodes, 1 Esp. 236, and Wood v. Roberts, 2 Stark. 417. Follett was heard on the other side.

The Court were of opinion, that the Nisi Prius ruling was correct; and the rule for setting aside the verdict, which had been found for the defendant, was therefore

(a) Cited ante, p. 300, in Garrard v. Woolner, which see.

Discharged.

*518]

*SECOND SITTING AT WESTMINSTER, IN HILARY TERM,

To justify a master in dismissing a yearly servant before the expiration of the year, there must be, on the part of the servant, either moral misconduct, pecuniary or otherwise, wilful disobedience, or habitual neglect.

THE first count of the declaration stated, that the defendant was indebted to the plaintiff in 2007., for wages or salary as a hired servant. The second count stated that, in consideration that the plaintiff, at the special instance and request of the defendant, would enter into and continue in her service as a hired servant and courier, for the space of one whole year, to travel with her during that period from Great Britain to divers foreign parts and places, she undertook to maintain and continue him in her service as her hired servant and courier, for and during the said space of one whole year, provided he behaved and conducted himself properly as such courier and servant, and to pay him wages at the rate of 107. a month. It then averred, that the plaintiff entered into the service of the defendant, and travelled with her to Florence, and continued there for four months, during all which time he, to the best of his ability and power, performed the duties and offices of a courier and true and faithful servant to her, and at all times during the continuance of the said space of one whole year was ready and willing to have stayed and continued in her service, and to have performed his duties; yet the defendant not regarding her promise, &c., before the expiration of the said period, to wit, &c., wrongfully and improperly, and without any reasonable or justifiable cause, discharged him from her service at Florence, and thenceforth wholly refused to maintain or continue him in her *519] service, or to pay him, for the residue of the year, any *wages whatever, by means whereof he not only lost wages to the amount of 801., but was forced to maintain himself at his own costs, and to lay out large sums as travelling expenses, in returning from Florence to Great Britain. There were other common counts; and the plea was the general issue.

On the part of the plaintiff, the hiring for a year, from the 1st of August, 1827, at 107. a month, was proved; and it appeared that he went as courier with the defendant, who was a widow lady, and her family, to the Continent, and in the month of December, 1827, when they were at Florence, he was dismissed from the service.

On the part of the defendant it was proved, that, on getting into the carriage at the stage before Padua, the defendant desired the plaintiff not to stop at a particular hotel, where they had been before, but to drive to another; but that he, notwithstanding, did stop at that hotel; and, when remonstrated with, said he had not been told; and, at the second hotel appeared to be very sulky; and

also that he had neglected to come on two or three occasions when he had been rung for, and was insolent in his manner at Florence.

Sir J. Scarlett, for the defendant, contended that this was such improper conduct as justified the defendant in dismissing the plaintiff.

Cumpbell, for the plaintiff, argued that there must be gross misconduct to produce a dissolution of the contract, and that no such conduct had been proved against the plaintiff.

Mr. Justice J. PARKE told the Jury, that there was a contract for a year, with an implied agreement, that, if there was any moral misconduct, either pecuniary or otherwise, wilful disobedience, or habitual neglect, the defendant *should be at liberty to part with the plaintiff. His Lordship added, that, in his opinion, no such conduct had been proved, and that the [*520 plaintiff was entitled to his wages for the year. (a)

Verdict for the plaintiff. Damages-677. 10s., afterwards reduced by consent on motion.

Campbell, and Watson, for the plaintiff.

Sir J. Scarlett, and Long, for the defendant.

[Attorneys-G. Smith, and Vizard & Co.]

(a) 157. had been received on account, and 621. 10s. was paid into Court.

SITTINGS AT WESTMINSTER, AFTER HILARY TERM, 1831. BEFORE LORD TENTERDEN, C. J.

SANDYS, and Others, Gents., v. HORNBY, Gent. Feb. 1.

An agent to a country attorney need not deliver a bill under the stat. 3 Jac. 1, c. 7. s. 1, if the charges be for agency in causes in which the defendant was the attorney and in which the plaintiff acted as his agent.

ASSUMPSIT for an agency bill. It appeared that the defendant was an attorney, and that the plaintiffs were his town agents; and that the business done was the conducting of causes in which the defendant was the attorney, and in which the plaintiffs acted as his agents. There was evidence that the business had been done, but there was no proof of the delivery of any bill.

R. V. Richards, for the defendant, relied on the stat. 3 *Jac. 1, c. 7, seet. 1, and the case of Heming and Another v. Wilton, ante, p. 318. [*521 Lord TENTERDEN, C. J. I am of opinion that the stat. 3 Jac. 1, c. 7, s. 1, does not apply to agency bills, as the words "masters or clients," in that statute, (a) are quite inapplicable to agents. Verdict for the plaintiffs.

This case had stood over from the third Sittings in Hilary Term, with judg· ment of the Term, if the Lord Chief Justice should think proper."

R. V. Richards asked that there might not be judgment of the Term, to give him an opportunity of moving for a new trial; but

Lord TENTERDEN, C. J., would not grant the application, and there was, therefore, Judgment of Hilary Term.

Smirke, for the plaintiffs.

R. V. Richards, for the defendant.

[Attorneys-Sandys & Sons, and Hall.]

(a) See sect. 1 of this stat, set forth ante, p. 318. n. (a).