Gilbert v. Gilman

W. J. C. J.-I certainly for one do not see my way to entertain this appeal, especially when we take it in connection with the decision of this court in the Bank of Toronto v. Le Curd and Les Marguilliers, 4-c., and also the late decision in the Privy Council, in Allan v. Pratt (2).

The statute enacts " no appeal shall lie wherein the matter in controversy does not amount to the sum of value of two thousand dollars."

In this court when the question first arose we held that the matter claimed in the declaration was to govern as being the amount in controversy, but a late decision of the Privy Council has determined that the matter in controversy is the amount of the judgment. In this case it is not claimed that either the amount claimed by the declaration or adjudged by the judgment amounts to the sum of two thousand dollars. Then to make it appealable the appllant must be prepared to show that it " relates to a fee of office,"-which it is not,-" duty, rent, revenue or sum of money payable GILRT to Her Majesty "-which it is not,-or "to any title to lands or tenements ",-which it is not,-or "annual rents " that is annual rents out of lands or tenements- RitchieC.J. which it is not,-or " such like matters or things where the rights in future might be bound."

I have no doubt that the words "such like matters or things" are governed by the preceding words. If ever the doctrine noscitur a sociis is applicable it is in this case-and under these circumstances I cannot see how we can get the matter within the above named exceptions the section, or within the portion of the section which declares that to make the case appealable the matter in controversy must amount to two thousand dollars. As to the argument of inconvenience all I can say is that the legislature has not given the right of appeal in the present case. If hereafter a case should arise in connection with this transaction in which the amount in controversy is two thousand dollars and it is determined in a manner hostile to the present appellant, then such a case would be appealable to this court, not because it affects any future rights, but because the amount in controversy was sufficient, and this court would not be bound in that matter by any decision of the court below, inasmuch as that court is not a superior tribunal to this court.

Under these circumstances I cannot escape the conclusion that this is not an appealable case and therefore the appeal must be quashed with costs.

J.-The jurisdiction to entertain this appeal must depend altogether on sec. 29, sub-sec. b. of the Supreme and Exchequer Courts Act. It is said that future rights will be bound by the judgment appealed if it is allowed to stand unreversed. It is plain however that this is not enough, for not only must future rights be bound by the judgment in order that an appeal may be admitted when the amount in controversy is less than $2000, but further the future rights to be so bound s must relate to some or one of the matters or things specified in the sub-section in question, viz: to a fee of office, duty, rent, revenue or sum of money payable to Her Majesty, or to some title to lands or tenements, or to some like matters and things where the same consequence will follow, viz: when future rights will be bound. Now it is manifest that in the present case, even if future rights will be bound by the judgment under appeal, such future rights will have no relation whatever to any of the matters or things enumerated in this sub-section in question.

It therefore follows that the case does not come within the only exception to the first part of section 29 to which jurisdiction to entertain it has been ascribed, and the appeal must therefore be quashed. J.-I do not dissent. I have given my reasons at length in the cases of Joyce v. Hart (t), Bank of Tronto v. Le Curd et les Marguilliers, 8c. de la Paroisse de la Nativi and in Reburn v. Corporation of Ste. Anne (3) as to my interpretation of this section 29 giving a right of appeal in cases coming from the Province of Quebec.

In my opinion the case of Allan v. Pratt (4) decided by the Privy Council is not applicable to the present case.

J.-I need only add that we are asked to read this section as if it read-" Or in any matters or things where the rights in future might be bound." But the words the legislature has used are " such like matters," thereby qualifying them to such matters or things as are precedently mentioned.

Now what would be the result if we were to adopt the constrution contended for? Take an extreme case.

Suppose J. a man owed $1,900 payable by instalments, and the action was taken only when all the instalments were due, the case would not be appealable, but if after default of the first instalment, could it be said he had a right to appeal because the decision on that instalment would affect the decision as to future instalments?

Certainly not.

But putting aside the consideration of " rights in future," I am clearly of opinion that this case is not appealable and this conclusion is in affirmance of the decision of this court in the case of the Bank of Toronto v. Le Curd les Marguilliers, As to Allan v. Pratt, (2) I do not think this case comes up under the part of the section of the act to which that decision is applicable. I suppose, however, that we are bound by that decision and the members of the bar from the Province of Quebec, will no doubt understand that the decision of this court in Joyce v. Hart has been overruled.

If the amount claimed in the action been for more than $2,000 while the judgment was recovered for less than that amount, the limitation of the appealable amount would have applied, because the matter in controversy which, as explained in Allan v. Pratt means the matter in controversy upon the appeal, would have been only the smaller sum.

Here, however, the claim is only for the balance of $1,339.36.

There may be actions for sums under the minimum appealable amount where the judgment will be conclusive of the right to much larger sums, as e. g., an action to recover one instalment upon an obligation to pay a large sum by small instalments, or an action by a legatee claiming the income of a fund where the present right to the income and the ultimate right to the fund itself depend on the validity of the will. In such cases, when the whole amount involved in the decision exceeds $2,000 it is not to be supposed that the parties are precluded from appealing merely because the money immediately payable, and the payment of which is sought to be enforced, is under that sum. But the right to appeal in such cases arises, or rather the limitation is excluded, not because future rights are involved, but because the matter in controversy is the whole fund or the whole obligation and amounts to the sum or value of $2,000.

Greenshields