servant of the company, to do his duty. His duty was, "to look well to the accounts:" and it would be his

interest to do his duty. Whether there had been any suspicion that he had been remiss, I know not: but, an exhortation to a man to do his duty, cannot be an offence, whoever may give it. For these reasons, I do not think

that the company has

made out a legal justification for

dismissing the defendant without notice; and the set-off

must be allowed.

1851.

THE EAST ANGLIAN RAILWAYS Co.

v.

LYTHGOE.

The question for the opinion of the court, is, whether Question. the set-off was properly allowed.

Wheeler, for the appellants. The dismissal of the defendant by the company, was, under the circumstances, justifiable; and, even if it were not, his claim for salary is not properly the subject of a set-off.

1. The decision of the judge was clearly wrong upon the first point. [Maule, J. Does this case involve anything more than a question of fact? A quantity of evidence is set out, and a speech of the judge. But I doubt whether we can take notice of any thing more than "judgment for the defendant:" we cannot take notice of any bad reasons assigned by the judge. The right of appeal is given by the statute (a) in certain cases only,

(a) The appeal is given by the 13 & 14 Vict. c. 61. s. 14., which enacts, "that, if either party in any cause of the amount to which jurisdiction is given to the county-courts by this act, shall be dissatisfied with the determination or direction of the said court in point of law, or upon the admission or rejection of any evidence, such party may appeal from the same to any of the superior courts of common law at Westminster, two or more of

the puisne judges whereof shall
sit out of term as a court of
appeal for that purpose; provided
that such party shall, within ten
days after such determination or
direction, give notice of such
appeal to the other party or his
attorney, and also give security,
to be approved by the clerk of
the court, for the costs of the
appeal, whatever be the event of
the appeal, and for the amount of
the judgment, if he be the defend-
ant and the appeal be dismissed;

THE EAST ANGLIAN RAILWAYS Co.

v.

LYTHGOE.

viz. where a party is dissatisfied with the determination or direction of the court in point of law, or upon the admission or rejection of evidence.] The case finds certain facts, and it is for the court to say whether or not they amount to misconduct such as to justify the defendant's dismissal. [Maule, J. No fact is found: there is a statement of evidence.] The judge has found that which amounts to moral misconduct: and it is submitted that the evidence shews that the company were justified in discharging the defendant from their employ. It shews that he disclosed information which he could only possess by virtue of his employment. [Williams, J. How would you have framed a special plea justifying the dismissal?] By shewing that the clerk had been guilty of improper conduct, to the prejudice of his employers. [Maule, J. Upon a replication de injuriâ to such a plea, how would the matter be tried?] By a jury. [Maule, J. Who has found it here?] The judge. [Maule, J. No: he has refused to find misconduct. How can we review that? Williams, J. If the judge was performing the functions of a jury, there is an end of the case.] In Fillieul v. Armstrong (a), where the jury came to a similar conclusion, upon a plea justifying the dismissal of a school-master, the court gave judgment for the defendant non obstante veredicto. [Maule, J. There, the

provided, nevertheless, that such security, so far as regards the amount of the judgment, shall not be required in any case where the judge of the county-court shall have ordered the party appealing to pay the amount of such judgment into the hands of the clerk of the county-court in which such action shall have been tried, and the same shall have been paid accordingly; and the

said court of appeal may either order a new trial on such terms as it thinks fit, or may order judgment to be entered for either party, as the case may be, and may make such order with respect to the costs of the said appeal as such court may think proper; and such order shall be final."

(a) 7 Ad. & E. 557., 2 N & P. 406.

court held the plea bad, inasmuch as it neither shewed that the contract was put an end to, nor that the defendant had a right to dissolve it.] In Amor v. Fearon (a), it was held, that, if a clerk, retained at a salary to manage a mercantile business, declares that he is a partner, and will transact the business as such, the employer may immediately dismiss him,-although the clerk has not committed any other misconduct, or refused in terms to go on as clerk. [Williams, J. A rule for a new trial was asked for there, on the ground that the lord chief justice left to the jury that which he ought to have decided himself, viz. whether certain conduct was a reasonable cause of dismissal: but the court refused it.] The legal inference to be drawn from the facts, is for the jury. [Maule, J. I think, if county-court suitors mean to avail themselves of the power of appeal, they must take care to keep the law and the fact separate, by having juries. "Admission or rejection of evidence" must, I think, mean, admission to the jury.] It means the admission or the refusal to admit evidence to that tribunal which is to pronounce upon its value. Here, the judge improperly withholds the first letter from that tribunal. He dismisses it from his mind. That amounts to a rejec

The statement of the

tion of evidence. [Maule, J.
judge amounts to this, I admitted the letter: but I
afterwards dismissed it from my mind, because I inferred
that the defendant never sent it. In his capacity of judge,
he receives the evidence: in his capacity of juror, he
declines to give effect to it. He stands somewhat in the
situation of an arbitrator.] The writing of the letter
was an act which was injurious to the defendant's em-
ployers. [Williams, J. Suppose the defendant had
burnt the letter the instant he wrote it?] The act of
writing it shews a state of mind inconsistent with his

(a) 9 Ad. & E. 548., 1 P. & D. 398.

1851.

THE EAST

ANGLIAN RAILWAYS Co.

v,

LYTHGOE,

1851.

THE EAST ANGLIAN RAILWAYS Co.

v.

LYTHGOE.

duty to his employers. The materials for decision were not before the judge at the time he came to pronounce his judgment. [Maule, J. You cannot tie up the judgment to the reasons that are given for it.] At all events, there ought to be a new trial.

2. As to the set-off, the law is thus laid down in the notes to Cutter v. Powell (a), in 2 Smith's Leading Cases, p. 20.:-"Perhaps the result of the authorities. on this subject may be, that a clerk, servant, or agent wrongfully dismissed, has his election of three remedies, viz. that, 1. He may bring a special action for his master's breach of contract in dismissing him, and this remedy he may pursue immediately: Pagani v. Gandolfi (b): 2. He may wait till the termination of the period for which he was hired, and may then, perhaps, sue for his whole wages, in indebitatus assumpsit, relying on the doctrine of constructive service: Gandell v. Pontigny (c): and see Collins v. Price (d) and Smith v. Kingsford (e): vide tamen the observations of the judges in Smith v. Hayward (f): 3. He may treat the contract as rescinded, and may immediately sue, on a quantum meruit, for the work he actually performed: Planché v. Colburn (g): but, in that case, as he sues on an implied contract arising out of actual services, he can only recover for the time that he actually served." [Maule, J. That is, where the clerk or servant has been wrongfully dismissed. Here, the defendant was not wrongfully dismissed. The set-off was an agreed sum: the case so finds.] In Howlet v. Strickland (h), Ashhurst, J., says: "Debts, to be set off, must be such as an indebitatus assumpsit will lie for:" and Fewings v. Tisdal (i) shews

that such an action would not lie here. [Maule, J. Possibly not: but the 35l. might have been recovered under a special count. Williams, J. In Duckworth v. Alison (a), by articles of agreement for altering and repairing a warehouse for a fixed price, it was stipulated, that, in the event of the work not being completed in three months, the builder should forfeit and pay to the person with whom he contracted to do the work, 51. weekly and every week, such penalty to be deducted. from the amount which might remain due on the completion of the work: and it was held, in an action brought for extra work, that the employer was entitled, after having paid the contract price, to set off the penalty against the extra work; and that he had a double remedy, either to deduct, or to recover it.] That case underwent no discussion. [Williams, J. Fletcher v. Dyche (b) is a still stronger case: it was there held, that, if two persons agree to perform certain work in a limited time, or to pay a stipulated weekly sum for such time afterwards as it should remain unfinished, and a bond is prepared in the name of both, but is executed by one only, with condition for the due performance of the work, or the payment of the weekly sum, and the work is not finished in the time,-such weekly payments are not by way of penalty, but in the nature of liquidated damages, and may be set off by the obligee in an action brought against him by the obligor who executed.] There, debt would have lain. [Maule, J. Would not debt lie here for an agreed sum? By the terms of the contract, the company had a right to dismiss the defendant at their pleasure, subject to the payment of a certain ascertained amount.]

Worledge, contrà, was stopped by the court.

1851.

THE EAST ANGLIAN RAILWAYS Co.

v.

LYTHGOE.