had against the estate for the repairs, could only be legally recovered by means of a claim fyled under the Act. The Court dismissed the answers in law, and maintained the sufficiency of the pleas. (17 J., p. 167 ; 2 R. C., p. 482) J. C. BUREAU, for plaintiff.

DE BELLEFEUILLE & TURGEON, for defendant.

INSCRIPTION.-PROCEDURE.

COURT OF REVIEW, Montreal, 30th September, 1872.

Coram MACKAY, J., TORRANCE, J., BEAUDRY, J.

ALLAIRE US MORTIMER.

Held:-That eight days' notice must be given to the opposite party of an inscription for proof and hearing on the merits at the same time, and that a simple receipt of copy on such an inscription for the 27th · and dated the 21st, is not a waiver of the right to object thereafter to the shortness of the notice.

This was a review of a judgment rendered by the Superior Court, at Montreal, in favor of plaintiff. The case had been inscribed for enquête and final hearing on the merits at the same time, and no special application was made to reject the inscription, on the ground of short notice. The defendant inscribed in review, and urged that the judgment was bad, inasmuch as the inscription on its face contained a receipt of a copy dated the 21st, for proof and hearing on the 27th of February, 1872. And the Court sustained the point raised, but without costs in Review, deciding that the words: "Received copy 21th February, 1872" are not equivalent to the words and do not amount to "Received notice," and, in doing so, reversed the judgment complained of, set aside the inscription and all the proceedings had in the case subsequently to the 21st of February, and ordered that the parties should be placed in the state they were in on that day. The following are the reasons assigned in the judgment: "La Cour, considérant que l'avis du 15 février, filé le 21 février, pour enquête et audition sur les mérites de la cause, le 27 février 1872, n'était pas suffisant; le Code de Procédure exigeant avis au moins 8 jours avant celui fixé pour l'enquête dans une telle cause; Considérant que le défaut de tel avis, par l'espace de 8 jours, n'est pas couvert par le reçu daté du 21 février, écrit par le conseil du défendeur, sur la face de l'inscription." &c. Judgment of Superior Court reversed. (17 J., p. 168; 2 R. C., 475)

JETTE & ARCHAMBAULT, for plaintiff.

RITCHIE, MORRIS & ROSE, for defendant.

RECUSATION OF AN ASSIGNEE.-INSOLVENT ACT OF 1869.

SUPERIOR COURT, Montreal, 14th March, 1873.

Coram JOHNSON, J.

In the matter of RICHARD WORTHINGTON, an Insolvent, and THE MECHANICS BANK, Claimant, and GEORGE BALL et al., Contesting.

Held:-That, on a petition by the claimant, alleging facts which he claims to be legal grounds of recusation of the assignee, and claiming to be allowed to recuse the assignee, the judge will order the assignee to suspend all further proceedings, and order proof of the facts alleged in the petition.

PER CURIAM: A petition has been presented to me, on behalf of the claimant, recusing the assignee, who, by law, has to hear and determine the contestation pending in this case, and asking for an order to him to suspend further proceedings, as official assignee, upon the contestation in question, until the matters alleged are substantiated or otherwise. This application is resisted by the assignee, and by the party. contesting; and they contend that an assignee cannot be recused, and that the insolvent statutes have regulated the cases in which his functions can be superseded by order of the Court. Sec. 137 of the Act of 1869 provides for certain cases of disqualification in a judge sitting in insolvency, and also for the case of assignees being so disqualified. The language of the Act as respects the assignee is as follows: "And if the assignee to any estate be a claimant thereon as a creditor, or be collocated for any charges or remuneration, or be the agent, attorney or representative of any claimant thereon, he shall not hear, award or determine upon any contestation of his own claim or collocation, or of the claim of the person represented by him, or of any dividend thereon, or upon any contestation or issue raised by him, or by the person represented by him; but in such case such contestation shall be decided by the judge, subject to appeal, as herein before provided." By sec. 9 of 34 Vic., c. 25, it is enacted that relationship by marriage, or within the degree of first cousin, to any of the parties before him, shall disqualify the assignee in the same manner as he is disqualified for the causes mentioned in the 137th section of the Act of 1869. The petition before me sets out that, in the contestation of the claims of the Bank, the assignee has acted with. partiality, as if he were the agent or solicitor of the contesting parties; that he expressed a decided opinion that he

had formed upon one considerable part of the contestation, respecting 46 cases of books, an opinion which he stated he had formed on private information received by him. It further alleges that the assignee has been illegally employed, by the contestants and their agents, to collect information for the purpose of contesting the claim of the Bank, and, without the authority of the inspector of the insolvent's estate. There are more ample allegations still, tending to show gross partiality, which it is not now necessary to refer to. The assignee has fyled his declaration, denying the truth of the contents of the petition, and the suggestion now before me is whether I am to order a suspension of proceedings, and proof of petition. The present application is apparently not based on the 137th section, as it does not ask simply, as provided by that section, that the hearing of the contestation be transferred from the assignee to the judge; but only asks now that the petitioners may be allowed to prove their allegations, and to recuse the assignee, and that, upon proof, he may be recused and declared incompetent to act further in the matter. It is argued that there is no such thing provided for in the law as the recusation properly so called of an assignee; but I hold that I am bound, under the supervisory discretion vested in the Judges of this Court, over their officers, of whom the assignee in this case is clearly one, to deal with facts and remedies, and not merely with names and forms. It is not my duty to seek texts of statutes directly authorizing, strictly and technically, the recusation of an assignee to an insolvent estate. There is, indeed, I believe, no such direct authority, in the case of an assignee eo nomine; though the proceeding is substantially had every day, in the case of experts; and, even in the case of commissioners of expropriation, it has been adopted. But it would rather be the duty of a Court of Justice, in such a case, to make sure of the existence of some plain legal provision, abrogating the natural right of every man, to have his case determined by those who have no direct interest in deciding against him. The assignee in this case is exercising, within certain and narrow limits suited to his office, the functions of a judge. One of the parties before him says, you are acting with partiality, and as the agent of another party contesting my right. I do not want to be judged by you. I have good reasons. I will prove them, if I am allowed. Under these circumstances, it is my duty to turn to the written law of the land, and to the plain principles and practice of the administration of justice. I find the first words of the written expression of the law in the Code of Procedure, Art. 176, to be: "Any judge may be recused." It is true I do not find

the word 'assignee,' any more than I do that of expert, or commissioner for expropriation, or commissioner for the trial of small causes, or justice of the peace; but I will not violate a sacred principle, inseparable from the due administration of justice. for the mere omission of a name. I rather hold that the words 'any judge' include all those who exercise, even within certain limits, judicial functions, and I, therefore, order the proceedings on this constestation to be suspended, until this petition has been disposed of upon proof. It is not necessary to observe that the declaration of the assignee would be conclusive, unless the contrary were proved by the petitioner, and that this proof must by law be made in writing; but, as all the facts referred to in the petition, are facts depending upon written memoranda said to be in possession of the assignee, and, upon the books and proceedings also in his custody, the verification of the facts cannot cause any serious delay. As to whether the recusation was necessary at all, I give no opinion; the matter, if it could have been brought before the Court, by simple petition, would probably have been disposed of quite as satisfactorily; but the preliminary step of a recusation having been taken, I consider it my duty to the party applying, as well as to the assignee, to order proof. Proof on petition ordered. (17 J., p. 169; 3 R. C., p. 90; 4 R. L., p. 680)

E. BARNARD, for claimant.

A. & W. ROBERTSON, for the assignee.
BETHUNE & BETHUNE, for contestants.

CERTIORARI.

SUPERIOR COURT, Montreal, 31st October, 1872.

Coram TORRANCE, J.

Ex parte ROULEAU for certiorari.

H-That a conviction before a J. P., for having disturbed the public peace, by gravely insulting a party, and by committing an assault on him, and by crying out and threatening to beat him, is bad and will be quashed.

This was a certiorari, praying that a conviction of the petitioner, before a Justice of the Peace, on a charge of having disturbed the public peace, by gravely insulting one Brunet, and by committing an assault upon him, and by crying out, and threatening to beat him, be quashed as illegal.

TOME XXIII.

10

The Court granted the motion to quash the conviction, assigning as a reason that the conviction does not appear to be warranted by any law or statute in such case provided." Certiorari maintained. (17 J., p. 172; 4 R. L., p. 680) McCoy and LEFEBVRE, for applicant.

BÉLANGER, DESNOYERS and OUIMET, for complainant and

J. P.

MAITRES ET SERVITEURS.—PREUVE.

COUR DE CIRCUIT, Montréal, 30 novembre 1872.

CYR vs CADIEUX.

Coram TORRANCE, J.

Jugé :-Dans une action pour salaire, par un domestique, que la Cour peut prendre la déclaration du maître, et se déterminer par les circons

tances.

Le demandeur réclame du défendeur la somme de $38.10, pour 2 mois de salaire, comme domestique ou employé de ferme. Entr'autres choses, le défendeur allègue, par un plaidoyer spécial, un engagement verbal, pour une année, au prix de $185, qu'il offre de prouver par son serment, et prétend que le demandeur ayant, sans raison valable, malgré les protestations réitérées du défendeur, abandonné le service de ce dernier, avant l'expiration de son engagement, son action doit être déboutée. Il n'y a aucun doute que, d'après la loi et la jurisprudence établie, le serviteur qui déserte le service de son maître avant l'expiration de son engagement, ne peut être reçu à réclamer le salaire qui pourrait lui être dû, pour le temps qu'il a fait; car le maître ne peut être tenu de payer le salaire de son employé qu'en autant que ce dernier a rempli, de son côté, ses obligations. Mais le demandeur prétend que, d'après l'engagement verbal allégué par le demandeur, il avait été expressément convenu qu'il pourrait abandonner le service du défendeur quand bon lui semblerait, et que, dans ce cas, ce dernier serait tenu de lui payer le temps qu'il aurait fait. Le défendeur, admis (en vertu de l'article 1669 du Code Civil), à prouver, par son serment, l'engagement allégué par son plaidoyer, nie formellement les avancés du demandeur. Le défendeur a aussi produit des témoins qui tendaient à prouver des aveux de la part du demandeur que l'engagement était tel qu'allégué par le défendeur. De son côté, ce dernier fait entendre quatre témoins, son père et trois