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1862.

CHAUVIN

V.

ALEXANDER.

creditors, whereas in insolvency the court is put in motion by the party's own act. The practice at Chambers is to refuse to discharge a party under these circumstances. The privilege is that of the Court, not of the party. [He cited Magnay v. Burt (a), and the cases there cited; and Ex parte Cobbett (b).

J. O. Griffits, who appeared to support the rule, was not called on.

COCKBURN C. J. We all think that a man who petitions the Insolvent Debtors Court for relief is in the same position as a person attending any other Court of justice. Whatever may be the practice at chambers on the subject before us, the question has never yet presented itself to a full Court, and we have no doubt that, on principle, the privilege should be allowed.

CROMPTON J. The Insolvent Debtors Court is equivalent to a Court of justice within the rule of law, which exempts from arrest every witness attending it, eundo, morando, et redeundo. It is no answer to say that the Insolvent Debtors Court has refused to give the party a protection against his creditors; their having refused to do so does not make him a general outlaw. It would be very dangerous to interfere with the principle I have stated, and, as to the alleged practice at Judges' chambers, I never heard of it.

MELLOR J. Concurred.

(a) 5 Q. B. 381.

Rule absolute

(b) 7 E. & B. 955.

1862.

WHITTLE, appellant, FRANKLAND, respondent. Saturday,

1. A workman entered into an agreement with a coal company to serve them as a collier, in consideration of wages to be paid to him fortnightly; and the Company, in consideration of such service, agreed that he should not be discharged without twenty-eight days' notice in writing, unless in the case of misconduct: held, that this contract necessarily implied an obligation on the part of the master to find work for the servant, and to pay him wages every fortnight; and, consequently, was not bad for want of mutuality.

2. An information under the 4 G. 4. c. 34. s. 3. described the defendant as having contracted to serve "T. B. and his partners." At the hearing it appeared that the contract of service was between the defendant and T. B., on behalf of himself and his partners, constituting The R. M. & H. Coal Company (Limited):" held that this variance, if it were one, was cured by the 11 & 12 Vict. c. 43. s. 1.

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THIS was a case stated under the 20 & 21 Vict. c. 43.

by justices in petty sessions at Rotheram, in the

West Riding of the county of York.

The following information was laid by R. J. Frankland, the respondent, agent to Thomas Bolland and his partners, against John Whittle, the appellant.

"Information and complaint of R. J. Frankland, of Masborough, in the West Riding of the county of York, agent to Thomas Bolland and his partners, of Masborough, in the said West Riding, coalowners, taken &c., that John Whittle, of Attercliffe, in the said West Riding, miner, on the 1st December, 1860, at the Holmes Colliery, in the said West Riding, did contract with the said Thomas Bolland and others to serve the said Thomas Bolland and his partners in the capacity and employment of a miner until he should have given or received from the said Thomas Bolland and his partners one month's notice to leave his said service, and until such notice should have fully B. & S.

VOL. II.

E

January 25th.

Master and

servant.

Agreement.

4 G. 4. c. 34.
s. 3.
Information.
Variance.
11 & 12 Vict.

c. 43. s 1.

1862.

WHITTLE

V.

FRANKLAND.

expired, at and for certain wages; and the said John Whittle did afterwards duly enter into his said service, according to the said contract; and the said John Whittle afterwards, and before the term of his said contract was completed, to wit, on the 13th February, 1861, at the Holmes Colliery, in the said West Riding, was, in the execution of the said contract, and otherwise respecting the same, guilty of a certain misconduct and misdemeanour, in this, to wit, that he did then and there, and before the term of his said contract was completed, unlawfully absent himself from his said service without leave or lawful excuse, contrary to the form of the statute, &c."

The justices convicted the appellant of the said offence, and adjudged him to be committed for one month's imprisonment, with hard labour.

At the hearing of the information it was proved by the respondent that the appellant had entered into the following agreement with Thomas Bolland, on behalf of himself and partners, constituting The Rotherham, Masborough and Holmes Coal Company (Limited).

"Memorandum of agreement, made the 1st day of December, 1860, between John Whittle, of Attercliffe, in the county of York, collier (hereinafter called 'the workman'), of the one part, and Thomas Bolland, of Kirby Fleetham Hall, in the said county of York, on behalf of himself and his partners, constituting The Rotherham, Masborough and Holmes Coal Company (Limited), carrying on business at Brinsworth and Kimberworth, in the said county, as colliery proprietors, of the other part; whereby the said workman, in consideration of wages to be paid to him fortnightly by the said Rotherham, Masborough and Holmes Coal Company

1862.

51

WHITTLE

V.

(Limited), doth contract and agree with the said Company to work for and serve the said Company faithfully, diligently, and exclusively, as their servant, in the capa- FRANKLAND. city of a collier, at their collieries in the townships of Brinsworth and Kimberworth, in the West Riding of the county of York, from the date hereof until the expiration of one of such notices as are hereinafter mentioned, or until the said workman shall be dismissed by the said Company or their agents for misconduct; and to obey the lawful commands of the said Company and of their agents, and also to conform to the rules, regulations, and by-laws of the said Company, copies of which have been delivered to the said workman on the signing hereof, as he doth hereby acknowledge, at all times during such service; and that the said workman will not absent himself from the employ of the said Company at any time during his service, without the consent of the said Company or their agents first had and obtained; and also that the said workman will not quit or leave the service of the said Company without giving to them, or their principal agent or cashier, twentyeight days' notice in writing of his intention to do so, or until the month to be named in such notice shall have expired; and further, that he will carefully preserve all such working tools and implements as he may be entrusted with by the said Company or their agents, and also leave his colliery working in proper workmanlike order at the determination of this contract; and, lastly, that it shall be lawful for the said Company or their agents to stop and deduct from any wages which may be due to the said workman, such sum or sums of money as may, according to the provisions of the statute in that behalf, be due to the said Company from the

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It was also proved on behalf of the respondent that the appellant entered into the service under the said contract; and afterwards, and while it was subsisting, that is, on the day named in the information, had wilfully absented himself from the service without leave or lawful exeuse. It was also proved that all wages then due to the appellant for all work done by him had been paid to him, and that he was paid by piecework, and not by time. Evidence was also given on behalf of the appellant that there had been a dispute about

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It was contended on behalf of the appellant, first, that the servent did not bind the master to find work or per maps and was therefore bad for want of mutuality;

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