1900. court in which it is filed, and all proceedings may be taken Judgment. and had as on any other judgment of such Court, but DUBUC, J. there is nothing in the statute stating that the judgment

so removed shall cease absolutely for all purposes to be a judgment of the Court where it was originally rendered, and that it creates new rights from the date of its removal. On the contrary, section 194 of the Act states that there is still power in the Judge of the County Court out of which the transcript issued to set aside any judgment so obtained in any other Court, and all proceedings had thereunder or to stay proceedings thereunder in like manner as if the judgment had not been transferred.

The authorities seem to be clear enough on that point, and show that, when a judgment is transferred from an inferior to a superior court, it is so removed for the purpose only of facilitating the execution thereof. In Simon v. The Count De Wints, 8 Dowl. 646, Coleridge, J., referring to 1 & 2 Vic., c. 110, s. 22, said: "I think it must be taken that into all irregularities in the course of the proceedings the Court below is the proper and exclusive tribunal of inquiry. Where there is error in the judgment itself, a direct recourse may be had in the regular way to the superior court, but when the judgment alone is removed into the superior court under this section, it is removed for the purpose of execution only; and that we have nothing to do with it but to enforce it." That case is quoted approvingly in Williams v. Bolland, 1 C. P. D. 227, where Brett, J., says: "When a judgment is removed from an inferior to a superior court under this statute (1 & 2 Vic., c. 110, s. 22), it is only for the purpose of enabling the superior court to execute the judg

ment."

In Jones v. Paxton, 19 A. R. 163, Osler, J. A., speaking of a Division Court judgment removed by transcript into a foreign Division Court, says, at p. 165: "Such transcript does not make the judgment a judgment of the

foreign court. It is simply a proceeding auxiliary to the judgment for the purpose of obtaining execution.”

There is no doubt that when a judgment is removed by transcript from one County Court to another or to the Court of Queen's Bench, the judgment becomes a judgment of the court to which it is so transferred, and proceedings may be had in the latter court to enforce the judgment, such as execution, garnishing order, etc., but if such transfer had the effect of creating new rights and of making the same a new judgment altogether as of the date. of the transfer, the consequence would be that the judg ment, by being transferred from one County Court to another, might be kept alive for an unlimited period of time, without the judgment debtor being made aware of it,which would allow the judgment creditor to elude and defeat the provisions of section 24 of the Real Property Limitation Act. Another consequence might be that a bad judgment, a judgment, for instance, signed by default without proper service on the defendant, might become a good judgment by transcript into another court, and be kept alive for a very long time without the defendant even knowing that there was such a judgment entered against him in the original court. I cannot conceive that such was the object of the Legislature or that such effect was intended when section 193 of the County Courts Act was enacted.

In my opinion, the removal of a County Court judg ment into another County Court or into this Court makes it a judgment of the new court for the purpose of execution only, and has not the effect of stopping the operation of the Statute of Limitations on the original judgment.

I think the appeal should be dismissed with costs.
RICHARDS, J., concurred.

Appeal dismissed with costs.

1900. Judgment.

DUBUC, J.

1900.

Statement.

KNOX V. MUNRO.

Before BAIN, J.

Contract-Leaving service before expiration of term-Hiring and service-Quantum meruit.

The plaintiff's claim was for four months' wages. He swore that
the hiring was by the month at $17 per month, but defendant
stated that the hiring was for a definite period of eight months
for $130, no time having been fixed for payment, and his ac-
count was corroborated by a witness who was present when the
bargain was made.

Plaintiff left the service of defendant after four months without
his consent and without any valid reason or excuse.
Held, following Smith v. Hughes (1871), L. R. 6 Q. B. 597, that
the plaintiff was bound by his bargain, even if he had misunder-
stood the legal effect of it, and could not recover anything for
his services without fully completing his contract.

Cutter v. Powell, (1795) 2 Smith's L. C. 1, and Britain v. Rossiter,
(1879) 11 Q. B. D. 123, followed.

ARGUED: 7th February, 1900.
DECIDED: 23rd February, 1900.

APPEAL from the decision of Prendergast, County Court Judge. Plaintiff sued to recover for wages, when a verdict was entered for plaintiff. Defendant appealed. The facts are set out fully in the judgment.

G. H. West, for defendant, referred to Addison on Contracts, 844; Smith's Mercantile Law, 522; Smith on Master and Servant, 81; Britain v. Rossiter, 11 Q. B. D. 123; Fewings v. Tisdal, 1 Ex. 295.

J. D. Cameron, for plaintiff, referred to Robinson v. Taylor, 10 M. R. 33; Malcolmson v. Hamilton Prov. Loan Society, 10 A. R. 610.

BAIN, J.-The dispute there is between the parties in this action is as to the terms on which the plaintiff was hired by the defendant to work for him. The plaintiff

1900.

says that he was hired by the month at $17 per month. The defendant, however, says that the hiring was for a Judgment. definite period of eight months for $130; and as the emBAIN, J. ployment agent, who brought the parties together, and in whose presence the bargain was made, corroborates the defendant's statement, the weight of evidence, as far as the notes of the evidence show, is decidedly in favor of the defendant.

A written judgment was not delivered in the case, but since the argument on the appeal, the learned County Court Judge has been kind enough to furnish me with a memorandum of his reasons for the judgment, and I find that he entered the judgment he did, not because, in the conflict of evidence there was, he believed the plaintiff's evidence and disbelieved that of the defendant and of the employment agent, but because he thought that the minds of the parties did not meet as to the term or duration of the intended contract, and that, as the plaintiff had worked four full months, he should be allowed for this work on a quantum meruit at the rate approximately of $130 for eight months.

Now, it may be that the plaintiff misunderstood the legal effect of the contract he made, but it must be held, I think, that he engaged for eight months for $130. The evidence shows clearly that the defendant made him a plain and definite offer to hire him for that term and for that amount, and he gave the defendant to understand that he accepted the offer that was made, and he cannot be allowed now to say that his intention was not such as he made it to appear.

In Smith v. Hughes, L. R. 6 Q. B. 597, Blackburn, J., said: "If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party, upon that belief, enters into the

1900.

contract with him, the man thus conducting himself Judgment. would be equally bound as if he had intended to agree to BAIN, J. the other party's terms."

As no time was specified for the payment of the $130, under the special agreement, they would not become payable until the plaintiff had performed the work which was the consideration for the payment. Having left before the end of the eight months, he cannot, of course, be entitled to the $130; and as he left without any valid reason or excuse, it seems clear that he is not entitled to recover any portion of the $130 as wages for the part of the time that he worked. Cutter v. Powell, 2 Smith's L. C., 1; Spain v. Arnott, 2 Stark, 256; Huttman v. Boulnois, 2 C. & P. 512; Turner v. Robinson, 5 B. & Ad. 789; Lilley v. Elwin, 11 Q. B. 742.

Then, when he quit work, the special agreement was still subsisting; and it is a proposition of law that cannot be disputed, that no new contract can be implied from acts done under an express contract which still subsists: Cutter v. Powell, supra; Britain v. Rossiter, 11 Q. B. D. 123. He is not, therefore, entitled to recover anything on a quantum meruit for the work he actually did.

I think the appeal should be allowed with costs, and that the verdict entered for the plaintiff should be set aside and a verdict entered for the defendant with costs.

Appeal allowed.