secondly, that the information was bad for proceeding in the name of "Thomas Bolland and his partners," and not in the name of the Company; thirdly, that there were no wages due at the time the alleged offence was committed, and therefore no wages could be abated; fourthly, that there was a bonâ fide dispute as to the amount that should be paid for certain work required to be done under the contract, and, the contract not providing for any such dispute or difference, the justices had no jurisdiction under the statute, and the appellant was not guilty of misconduct and misdemeanour, and did not unlawfully absent himself from his service, and such dispute or difference constituted a lawful excuse, and was a reasonable cause for such absenting.

The justices however were of opinion, first, that, by reasonable implication, the agreement bound the master to find work and pay wages, and was a valid agreement; secondly, that under the 11 & 12 Vict. c. 43. s. 1., the objection to the information could not be allowed, and they were of opinion that the variance, if any, between the information and the evidence adduced in support of it, had not in any way deceived or misled the appellant ; thirdly, they were also of opinion that the statute authorized them to convict the appellant, and commit him to prison, although there were no wages due or becoming due to him which they could abate; fourthly, they were also of opinion, from the evidence before them, that there was no dispute or difference as to the amount to be paid for work under the said contract which amounted to a lawful excuse or justification for the appellant refusing to work under the contract, or for absenting himself from the service before the term of his contract was completed, and that the appellant was

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aware that he had no lawful excuse for absenting himself.

Whereupon the opinion of this Court was asked whether or not the justices were correct in their determination.

The conviction was founded on the 4 G. 4. c. 34. s. 3., which enacts, "If any servant in husbandry or any artificer, calico-printer, handicraftsman, miner, collier, keelman, pitman, glassman, potter, labourer, or other person, shall contract with any person or persons whatsoever, to serve him, her or them for any time or times whatsoever, or in any other manner, and shall not enter into or commence his or her service according to his or her contract (such contract being in writing and signed by the contracting parties), or having entered into such service shall absent himself or herself from his or her service before the term of his or her contract, whether such contract shall be in writing or not in writing, shall be completed, or neglect to fulfil the same, or be guilty of any other misconduct or misdemeanor in the execution thereof, or otherwise respecting the same, then and in every such case it shall and may be lawful for any justice of the peace of the county or place where such servant in husbandry, &c. shall have so contracted, or be employed or be found, and such justice is hereby authorized and empowered, upon complaint thereof made upon oath to him by the person or persons, or any of them, with whom such servant in husbandry, &c. shall have so contracted, or by his, her or their steward, manager or agent, which oath such justice is hereby empowered to administer, to issue his warrant for the apprehending every such servant in husbandry, &c., and to examine into the nature of the complaint; and if it

shall appear to such justice that any such servant in husbandry, &c., shall not have fulfilled such contract, or hath been guilty of any other misconduct or misdemeanor as aforesaid, it shall and may be lawful for such justice to commit every such person to the house of correction, there to remain and be held to hard labour for a reasonable time, not exceeding three months, and to abate a proportionable part of his or her wages, for and during such period as he or she shall be so confined in the house of correction, or in lieu thereof, to punish the offender by abating the whole or any part of his or her wages, or to discharge such servant in husbandry, &c. from his or her contract, service, or employment, which discharge shall be given under the hand and seal of such justice gratis."

Quain for the respondent.-The first and main question is whether this contract is bad for want of mutuality, on the ground that it fixes no rate of wages, and does not bind the employer to supply the workman with work. But the agreement is a mutual one, binding on both sides; for it expressly stipulates that the workman is to serve the master, and it further stipulates that the master shall not discharge him without giving twenty-eight days' notice. [Crompton J. I never could understand that mutuality doctrine. Take the case of a contract of guarantee; the only question there is, was there any consideration to support the contract? If so, it is synallagmatic.] In Regina v. Welch (a), which strongly resembles the present case, Lord Campbell says, "The necessity of giving notice clearly shews that there is some obligation on the employer. What was (a) 2 E. & B. 357, 362.

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that? To find reasonable employment according to the state of the trade. That is not an unilateral agreement, but a mutual agreement, with something to be done on each side. This view does not conflict with the authorities. On the contrary, it agrees with Pilkington v. Scott (a), a case directly in point." As to no rate of wages being fixed in the agreement, the law clearly is, that in such cases a reasonable rate of wages is to be intended. Valpy v. Gibson (b) shews that a contract of sale may be complete and binding, though silent as to the price, for such silence is equivalent to a stipulation for a reasonable price. [Crompton J. In the time of Tindal C. J., the Court of Common Pleas considered that point in a case arising under the Statute of Frauds (c).]

Secondly, as to the objection of variance. It is doubtful if the matter here insisted on as a variance is one in reality. But, supposing it is, the difficulty is got over by stat. 11 & 12 Vict. c. 43., relative to informations before justices of the peace, the 1st section of which contains this proviso, "Provided also that no objection shall be taken or allowed to any information, complaint, or summons, for any alleged defect therein in substance or in form, or for any variance between such information, complaint, or summons and the evidence adduced on the part of the informant or complainant at the hearing of such information or complaint as hereinafter mentioned; but if any such variance shall appear to the justice or justices present and acting at such hearing to be such that the party so summoned and appearing has been thereby deceived or misled, it shall be lawful for such justice or

(a) 15 M. & W. 657.

(b) 4 C. B. 837. (c) The learned Judge probably means Hoadly v. M'Laine, 10 Bing. 482.

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justices, upon such terms as he or they shall think fit, to adjourn the hearing of the cause to some future day." Here the justices find that the party was not misled. FRANKLAND. [Crompton J. That is a healing act.]

Mellish, for the appellant. -The first point in this case is of great importance, seeing that contracts in the present form are very prevalent. Such contracts are. in restraint of trade; and are most unjust towards the ignorant men called upon to sign them, who are liable to be proceeded against penally for any infraction on their part, while no obligation is imposed on the employer. In the first place, this contract neither specifies the kind of work nor the rate of wages. The contract may mean that the workman is to be provided with piece-work; and if so, what would be the case supposing, by a rise of water, the colliery were stopped for a month. [Crompton J. The usage of the trade would probably determine how the workmen should be employed during that time.] No custom of trade has been found in this case. In Sykes v. Dixon (a), where a man contracted in writing to work for another in his trade, and for no other person during twelve months, and so on from twelve months to twelve months, until he should give notice of his intention to quit the service, it was held invalid under the Statute of Frauds for want of mutuality. [Crompton J. That is a good deal shaken by Pilkington v. Scott (b).] In that case the parties had provided both for the cessation of the work and the mode of calculating the amount of wages, and the judgment proceeded rather on the question of the contract not being in unlawful restraint of trade. (b) 15 M. & W. 657.

(a) 9 A. & E. 693.

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