Cresswell and Wightman, in support of the rule. It is only contended that the Court have a discretion, and may, if justice require it. re-open a rule decided in the bail court. Here, there is ground for the exercise of that discretion, since the Judge, who pronounced his judgment, expressed a wish to have it reviewed. In The King v. the Sheriff of Devon, the Judge who had decided the case in the bail court, refused to sanction the application to the full court. De Rutzen v. Lloyd (3) shews that this Court can re-open one of its own rules.

LORD DENMAN, C.J.-The bail court is this court for all purposes. No doubt this Court can alter a rule which it has pronounced in certain cases, as where there has been any misconception of the terms of it. But that is different from the present case. Where a Judge in the bail court has pronounced a judgment, he cannot, even by intimating his own wish to have it re-argued, give any jurisdiction to this Court to re-open it after the term in which it has been pronounced.

PATTESON, J.-It is quite necessary that we should give this decision. The statute (1 Will. 4. c. 70. s. 1,) authorizes a Judge, sitting apart, to make rules and orders in causes depending in the court to which he belongs, in the same manner and with the same force and validity as may be done by the Court sitting in banc : and it is for the benefit of all parties that we should treat all decisions there as made in this court, and that there should be no pretence for coming here to have the judgment, which has been pronounced there, reviewed. As to the distinction attempted to be made between the present case and the one which has been cited, it ought not to prevail. We must not decide the case upon the importunity to which a Judge may give way, but the simpler we draw the rule the better.

WILLIAMS, J. and COLERIDGE, J. concurred.

Rule discharged.

(3) 5 Ad. & El. 456; s. c. 5 Law J. Rep. (N.s.) K.B. 202.

Assumpsit.

The declaration was on a bill of exchange, dated Dec. 10, 1836, drawn by one John Smith upon John Smith the younger, payable three months after date, to his own order, indorsed by him to the defendant, and by him to one Joshua King, who indorsed it to William Dakin, who indorsed it to William Hadley, who indorsed it to the plaintiff.

Pleas-Denying all the indorsements, the due presentment, and notice of dishonour, and alleging want of consideration.

At the trial, before Lord Denman, C.J., at the sittings after last term, in Middlesex, the bill when produced purported to have been drawn on December 10, 1836, but appeared to have been altered from December 15. It was contended on the part of the defendant, that it was incumbent upon the plaintiff to explain this alteration; his Lordship, however, decided otherwise, and the plaintiff recovered a verdict.

On a former day in this term,

Jervis moved for a rule for a new trial, on this ground. No doubt, where the bill is not required to be produced, the defendant cannot call upon the plaintiff to explain the alteration; but the case is different where the production of the bill becomes necessary. Then the Judge is bound, seeing that there has been an alteration, to require the party producing it to explain the alteration. That was the case here. plaintiff could not prove the indorsements without the production of the bill-Henman v. Dickenson (1).

The

Cur. adv. vult.

On this day, the judgment of the Court was delivered by

(1) 5 Bing. 183; s. c. 7 Law J. Rep. C.P. 68.

LORD DENMAN, C.J.-This rule has been moved for on the ground, that the plaintiff was bound to account for the alteration on the bill. We think, that upon these pleadings he was not bound to do so. The only questions raised by this record, are as to the indorsements, the presentment, the notice of dishonour, and the consideration. The bill is, therefore, admitted, and that admission appearing on the record, it was not incumbent upon the party producing it to give any explanation of the alteration. Therefore, the rule must be

Assumpsit. The first count was on an agreement by the defendant to employ the plaintiff in his service for a year, at a yearly salary, and the alleged breach was the dismissing him before the expiration of the year. The second count was for work and labour generally.

Pleas-To the first count, non assumpsit, and that the defendant did not dismiss the plaintiff wrongfully; to the second count, payment of 4l. into court, and no damages ultra.

At the trial, before Gaselee, J., at the Buckinghamshire Spring Assizes, 1836, it appeared, that the plaintiff came into the defendant's service on the 1st of June 1836, on a contract for a yearly hiring; but as the jury found that it was a part of the contract, that it might be determined at three

(2) In Cock v. Coxwell, 2 Cr. M. & R. 291, s. c. 4 Law J. Rep. (N.S.) Exch. 307, it was held, that under a plea by the acceptor, denying his acceptance, an alteration of the bill might be given in evidence.

months' notice, and, therefore, the first count was not proved, the verdict was taken for the defendant thereon. On the 1st of September, the plaintiff received a quarter's salary; on the 19th, the defendant dismissed him; and on the 21st, this action was commenced. The plaintiff then sought to recover the whole quarter's salary, on the general count for work and labour; but it was answered, that he had only a right to be paid for the service which he had actually rendered, and that that was covered by the money paid into court. The learned Judge was of that opinion, and directed a verdict to be entered for the defendant on all counts; but gave the plaintiff leave to move to enter a verdict for him, on the second count, if the Court should be of opinion, that he was entitled to recover. In the ensuing term,―

R. V. Richards obtained a rule nisi accordingly; against which, cause was shewn by

Kelly. The first count was not proved, and is, therefore, out of the question. Then the second count is applicable to the service, after the expiration of the first quarter, and is met by the payment into court. It is contended, that where a servant is dismissed in the middle of a quarter, he may maintain an action for work and labour generally; and Gandell v. Pontigny (1) was cited, where Lord Ellenborough says, "If he has done work for any part of the quarter, it is done for the whole." But the law cannot be as it is contended. The count is for work performed, and how can that be proved by evidence, that the party merely worked for a part of the time, and was willing to work the rest? The decision of Lord Tenterden, in Archard v. Hornor (2), is contrary to the ruling of Lord Ellenborough, and is more consistent with principle. The point also was raised in Ridgeway v. the Hungerford Market Company (3), but not decided. Assuming, however, that an action for work and labour may be maintained for the quarter's salary, it cannot be brought before the quarter has expired, as in the present case. Non constat, that the plaintiff might not go into the ser

(1) 1 Stark. N.P.C. 198; s. c. 4 Campb. 375. (2) 3 Car. & Pay. 349.

(3) 3 Ad. & El. 171 ; s. c. 4 Law J. Rep. (N.S.) K.B. 157.

vice after his dismissal, or refuse to go, after a request from his master. How can the action be maintained prospectively?

Gunning, in support of the rule, relied upon Gandell v. Pontigny and Collins v. Price (4), which cases were not brought before Lord Tenterden, when he decided Archard v. Hornor. In Pagani v. Gandolfi (5), an action was brought by a servant against his master, for dismissing him from his service before the period of his service had expired, and the objection was taken that it was brought too soon; but Best, C. J. said, "I think he was not bound to Iwait till the end of the year, if you dismissed him previously."

LORD DENMAN, C. J. The rule was granted in order that the case of Gandell v. Pontigny might be questioned, the doubt being whether an action for work and labour would lie in such a case as the present, and, without that authority, the Court would not have granted the rule. Lord Tenterden has taken a different view from what is there expressed, and his authority is opposed to that of Lord Ellenborough. If I were bound to choose between the two, I should say, that the later case is founded

upon the better reason. There is a great difference between the pleas in actions on the special agreement, and for work and labour. In the latter, the defendant must say, that the work was never done; in the former, that he had good cause for dismissing him. The express point, however, does not arise, because the plaintiff has brought his action before the end of the quarter, for which he claims to be paid, at a time after which he might have returned into the service from which he had been dismissed. For the work which he actually performed, he has been paid.

PATTESON, J.-If I were obliged to make any choice between the two decisions, I should have no hesitation in adhering to Archard v. Hornor. The case of the schoolmaster has nothing to do with the present. That turned upon the terms of the special agreement, though if it were a new case, I have some little doubt whether the decision would be the same. However,

(4) 5 Bing. 132; s. c. 6 Law J. Rep. C.P. 244. (5) 2 Car. & Pay. 370.

here the action is brought on the 22nd of September, and money has been paid into court to meet the actual services, so that it is an action on an executed promise, founded upon a prospective consideration.

How

WILLIAMS, J. This is an action for work and labour done and performed. can it be maintained by a prospective anticipation of what may or may not be done by the party? Supposing, however, that it was a case where an action was maintainable before the time for completing the service had arrived, I should have no difficulty in saying, that the later authority is the better one.

COLERIDGE, J.-The plea to the second count is, that sufficient money is paid into court to satisfy the work done. Now, assuming that Gandell v. Pontigny is good law, the proposition is this, that if a man be ready and willing to continue his work, it is the same as though he had actually done it. But supposing it to be so, the servant could not maintain his action for the work until the quarter had expired, during which he was to perform it. Therefore, without touching that authority, though I am far from agreeing with it, this rule must be

Evidence-Declaration-Highway.

On an indictment against the owner of land, for obstructing a highway, where the question was, whether it was a public or private way, a witness stated that a former occupier of the land, over which it ran, had planted a willow tree, and was asked what he had said when he so planted it, and replied that he said he planted it to mark out the boundary of the way as he knew it when a boy :- Held, that this declaration was not admissible either by way of reputation, or as accompanying an act, or as made against the interest of the party making it, since he could not bind the interest of his landlord.

Indictment against the defendant for obstructing a public highway in the parish of Brandon, in the county of Suffolk, by building a wall across it.

Plea-Not guilty.

At the trial, before Gaselee, J., at the Suffolk Lent Assizes, 1836, the question in dispute was, whether there was any public road at all. Among other evidence, a witness was called, who stated, that about forty years ago, one Rampling, now dead, was the occupier of the meadows over which the road was alleged to run; that he had purchased a willow, and had planted it in a certain spot. He was then asked what he had heard Rampling say, at the time he was so planting it; and stated that Rampling said, that he was planting the tree to mark the spot where he knew when he was a boy the boundary of the road to have been. Rampling was only the tenant of the land, and the defendant was the owner in fee. It was objected that this declaration was not admissible in evidence; but the learned Judge admitted it, and the verdict passed for the Crown. In the ensuing term, a rule nisi was obtained by

Storks, Serj., to set aside this verdict, and for a new trial, against which, cause was now shewn by

Andrews and Byles.-This declaration was properly admitted on three grounds; first, it was a declaration accompanying an act done, and therefore admissible as part of the res gesta. The planting of the willow by the tenant of the land, was a fact, which the prosecutor was at liberty to give in evidence, and if so, he surely may shew what was the object of the party in planting this willow. Secondly, it was evidence as reputation. Rampling was dead at the time of the trial, and the declaration amounts to this, that when he was a boy, the spot in question was the boundary of the road.

[COLERIDGE, J.-There was no conversation at the time, as to the boundary of road. How does it appear that he meant the public highway?]

That is for the jury to determine. [COLERIDGE, J.-The admissibility of the evidence cannot be made to depend upon the verdict of the jury.]

Then, thirdly, this was a declaration against the interest of the party making it. It is now contended, that there was no way over these meadows, of which Rampling was the tenant; it was therefore clearly con

trary to his interest, to allow that there was any right of way there. He thus diminished his own enjoyment. It is objected, that being only a tenant, he could not affect his landlord's right. But in Daniel v. North (1), Le Blanc, J. says, "It is true that presumptions are sometimes made against the owners of land during the possession, and by the acquiescence of their tenants, as in the instances alluded to, of rights of way and of common, but that happens, because the tenant suffers an immediate and palpable injury to his own possession, and therefore is presumed to be upon the alert to guard the rights of his landlord as well as his own, and to make common cause with him; but the same cannot be said of lights put out by the neighbours of the tenant, in which he may probably take no concern, as he may have no immediate interest at stake."

Kelly, in support of the rule, was stopped by the Court.

LORD DENMAN, C.J.-The question on the trial was, whether there was a public way or not. The counsel for the prosecution called a witness, who stated,-[His Lordship here repeated the evidence,] observing, that the deceased did not call it a public or a private road. His statement was calculated to produce a great effect. But the question is, whether it was receivable in evidence. It is said, that it was a declaration accompanying an act. Now, I cannot conceive that every declaration accompanying an act, is to be admitted in evidence, because the act itself may be. Such a doctrine would enable persons to dispose entirely of the rights of others. The statement that he planted it with a particular object, is not material; neither. is the fact of the planting the willow by a private individual, except as accompanied by the circumstance that the public have always since kept within the line marked out by it. The motives of the party planting it could not be given in evidence. Then is it a declaration against his interest? To hold that it was so, we must get rid of the decision in Daniel v. North, where it was held that the submission of the tenant

(1) 11 East, 375.

to the inconvenience could not bind his landlord. It is said, that he has the same interest as his landlord,-but is it so? In many instances, the tenant may have an interest contrary to that of his landlord. That case, however, decides that this declaration was not admissible against the landlord. Then, as to the ground of reputation, it was not admissible in that point of view. All hearsay evidence must be received with great caution, and it is a general principle, that it is only admissible as evidence of matters of public reputation, and not of particular facts. Now, I cannot see what this is, except evidence of a particular fact. What is meant by the declaration, when he was a boy, he had known that spot to be the boundary? He does. not refer to the opinion of old persons who were dead, but he merely speaks of his own knowledge of that fact. It was therefore hearsay evidence as to a particular fact, and was not receivable. The verdict must be set aside.

PATTESON, J.-First, as to the reception of this evidence, on the ground of reputation. In considering that point, we must look to the issue which is to be tried: and in this case it was, whether a road admitted as to its line, was a public or private road. In questions of boundary, the declarations of deceased persons are admissible; but I have never heard that reputation, as to its boundary, could be let in to prove, whether a road was a public or private road. It has nothing to do with that issue. I also agree with my, Lord, that this appears to be reputation of a particular fact. Then we come to the second proposition, that it is a declaration accompanying an act done. Now, it is quite equivocal, whether the party meant to say that this was a public or a private way; but supposing the former, what signifies it with what view he planted the willow? That object cannot shew the character of the road, whether public or private. The mere fact of his planting the tree, would be irrelevant of itself. It only becomes important, by its being shewn that the public had passed by the side of that tree. Then as to its being against his interest: he was only the occupier of the land, and we are bound to hold that the declaration of the tenant cannot affect

the landlord's interest. If not, we should overturn Daniel v. North, and Wood v. Veal (2). There, it was held, that a long acquiescence by a tenant could not bind his landlord; and if not, how can his mere declaration?

WILLIAMS, J.-No doubt, where the question has been, whether a way be public or private, evidence of reputation is admissible of its being a public way;—but here the evidence is of a particular fact. In Ireland v. Powell (3), Chambre, J. allowed witnesses to state the reputation as to the boundary of a town, but refused evidence of houses having stood on a particular spot. The declaration was not therefore admissible on the ground of reputation. Then, as to its being a declaration accompanying an act, there does not appear to have been any connexion between that act and the conversation;-the boundary of the way had nothing to do with planting of the As to its being against his interest, he was only the occupier, and could not affect his landlord.

tree.

COLERIDGE, J.-I will add one word on the point, as to whether this evidence was receivable as reputation. No rule is more universal than that reputation must be confined to general matters, and that it is not admissible of a particular fact. Now we must sever the conversation from the act. Then the question is, what did the party say about the planting of that tree? and the answer is, he said he planted it for the purpose of pointing out the boundary. Can a witness be asked, have you heard old persons, now dead, say why a particular stone or post was put down on a common? I apprehend not. Neither can a witness state that he had heard that certain facts took place on a particular spot. Here, the question in substance is, have you heard why the willow tree was planted? It has reference to a particular transaction, and the evidence was not receivable.

Rule for a new trial absolute.

(2) 5 B. & Ald. 454. (3) Peake, Evid. 13, 5th edit. Antrobus, 2 Ad. & El. 795; s. c. (N.S.) K.B. 91.

See The King v. 4 Law J. Rep.