Lush v Russell
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1850 |
| Date | 08 May 1850 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 1369
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 7 D & L 228, 19 L J Ex 56 Considered, Reindel v Schell, 1858, 4 C B (N S) 97 See further, 5 Ex 203
lush v russell Dec 10, 1849 -A declaration stated an agreement whereby the defendant agreed to employ the plamtitt as a journeyman baker, for four years, and to pay hrm certain weekly wages, and also certain additional sums in the three last years of the term Breaches, that the defendant, before the expiration of the teim, wrongfully dischaiged the plaintiff fiom his employ that the defendant did not pay the plaintiff the weekly wages, fot the iemaindei of the teim that the defendant did not pay the plamtrff the additional sums which he would have been entitled to if he had continued in the employ of the defendant General demurier to the two last bleaches, and jomdei therein -Held, that the pioper course wjia to have applied to a Judge to strike out those breaches, and that, upon this record, they could not be treated as surplusage [S. C 7 D & L 228 , 19 L J Ex 56 Considered, Rcuulel v Scliell, 1838, 4 C B (N S ) 97 See furthet, 5 Ex 20d ] Assumpsit The declaration, after reciting that the defendant, befoze and at the trme of the making of the promise, &c , was about to commence and carry on the trade and business of a baker in the city of Bristol, and the plamtitt then was and still is a journeyman baker, stated, that hcretofoie, to wit, on &c , it was mutually agreed by and between the defendant and the plaintiff, that the plamtitt should forthwith enter into the employ of the defendant, and should continue in hib employ, in the capacity of Journeyman baker, for the term of four years, &c (The declaration, which set out the agreement verbatim, heie stated numeious stipulations on the part of the plamtift a& to faithful service, &c , immaterial to the present question ) And the defendant, in consideration of the faithful services of the plaintiff, to be done and performed as was thereinbefore expressed, did theieby agree with the plaintiff, that he the defendant would receive the plaintiff into his service and employment, and continue him in service 1370 LUSH V. RUSSELL 4 EX 638 [038] or employ for the term of four years, and also, that the defendant would, during the said term, duly pay unto the plaintiff the weekly wages 01 sum of 11 Is and three quarterns and a half of bread per week, and would pay the plaintiff, in addition to the sqid weekly wages, during the second year of the said teim, 151, and during the third and fourth years of the said teim, the yearly sum of 201 And it was mutually agteed between the paities thereto, that if the defendant should, at any time during the said term of foui years, cease to cany on the business of a bakei in the city of Bristol, the agreement should he void The declaration then stated mutual piomises, and averred that the defendant, on &c, and fioni thence hitheito, commenced and cjnied on, and still carries on, the business of a baker in the city of Bristol, that the plaintiff entered into his employ in the capacity aforesaid, and continued in such employ for part of the said term of foui years, to wit, until &c Breaches Yet the defendant did not nor would, although the defendant hath never, dm ing the said paitof the said teim, during which the plaintiff so remained and continued in the defendant's service as afoiesaid, cease to carry on the business of a baker, but dining such last-mentioned time cained on, and still does cairy on, the same in the city of Bristol, continue the plaintiff m his the defendant's employ for the said tetm of font years, but, on the contrary theieof, during the said term of four years, and before the exipiration thereof, to wit, on &c, refused to suffer the plaintiff to continue in his the defendant's employ foi the temainder of the said term of four years, and then wrongfully dismissed and discharged the plaintiff therefrom, without any reasonable 01 probable cause whatever And the plaintiff further in fact says, that the defendant difl not nor would pay to the plaintiff the said weekly wages, 01 sum of 11 la, or any part thereof, and the thiee quai terns and a half of bread per week, or any part theieof, for the remainder of the said teim, or any pait theieof [639] And did not nor would pay to the plaintiff, in addition to the said weekly wages, the said sums of money, to wit, the said Bums of 151, 201, and 201, so agreed to be paid to the plaintiff in the second, third, and fourth yeais respectively of the said teim, and to which the plaintiff would have been entitled had he continued in the said employ of the defendant during the said full term of four yeais, 01 any or either of them, or any pait of such sums respectively, but hath wholly neglected and refused so to do , by means of which said premises the plaintiff hath lost and been deprived of all wages, pionts, &c General demurrei to the second and third breaches Jonrdei therein Bovill in support of the demurrer The second breach is bad, foi the weekly wages therein claimed never became due, inasmuch as the plaintiff did not continue in the defendant's service The third breach is also bad, on similar giounds The Court called on Montague Smith, contra It is conceded that both these breaches are bad, but, the. first breach being good, the second and third may be treated as surplusage [Pirke, B The plaintiff should have applied to a Judge to strike out the demunei , but not having done so, the question is, in what mode are we to give judgment'] The Court may give judgment for the plaintiff, on the ground that the two latter breaches aia meie surplusage, and that the declaration is otherwise sufficient m law By the 4 Anne, c, 16, the Court are to give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any defect m the dcdlaration, unless there be a special demurrer shewing the defect Bovill in reply The two allegations are distinct breaches The test is the agicement, by which the defendant undertook to do three things, namely, continue the [640] plaintiff in his service for four years, pay him the weekly wages, and also pay the additional sums in the subsequent yeais The plaintiff alleges that the defendant did not perform the two latter stipulations, and a distinct issue in law is laised upon those bieachea They can no...
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De Villiers v Administrator, OFS
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