American Securities Corp. Ltd. v. Woldson

provincial application is per se of such general importance as to warrant the granting of special leave to appeal to this court. Were the present motion to be granted, it would serve as a precedent for the asking of special leave to appeal in every case in which a question of the interpretation of a provincial municipal Act might arise. We think it was not the purpose of Parliament in providing for special leave to appeal to this court that every case of this type might be brought before it.

We would, accordingly, on this ground refuse the motion with costs.

Leave to appeal refused. AMERICAN SECURITIES CORPORATION, LIMITED v. WOLDSON

APPEAL by the plaintiff from the decision of the Court of Appeal for British Columbia (1), affirming the judgment of McDonald J.-Appeal dismissed for want of jurisdiction.

The appellant assigned to the Royal Trust Company, inter alia, future instalments of moneys which might become payable to the appellant under a designated option to the Granby Consolidated Mining, Smelting and Power Company, to purchase mining property. The assignment was to secure the payment of a bond issue.

A bank in Seattle was by deed nominated to keep a record of the bonds which might be registered there and to retire them out of the moneys which should be paid into it from time to time by the payee of the instalments, the Granby Company. Matters went on smoothly for a time until the bank at the request or instigation of the appellant, diverted some of the said moneys to a purpose not authorized by the deed. On discovering this act the respondent, a holder of more than one-fourth of the said bonds, made a demand upon the trustee that it should notify the Granby Company of the assignment and require payment of the instalments in future to itself.

The order granted by the trial judge was held by the

Court of Appeal to have been within his discretion and, therefore, one which should not be interfered with, since it was not based on an error in principle or made in the absence of materials affording ground for the exercise of the discretion.

J.-We think the appeal should be dismissed for want of jurisdiction. Section 39 of the Supreme Court Act limits the right of appeal to cases in which the amount or value of the matter in controversy exceeds the sum of

$2,000. The question of the jurisdiction to entertain this appeal came before us on a motion to quash, and for the purpose of enabling the parties to provide further material, and in order that the court might be more fully informed as to the precise facts, the disposition of the motion was deferred until the hearing of the appeal.

It is now suggested by Mr. Griffin that there should be an adjournment to enable him to file an affidavit. I think, in the circumstances, that this is an indulgence which cannot be allowed. On the facts before us there is really nothing to show what (if any) pecuniary value attaches to that control of which the appellants have been deprived by the order of which they now complain. It seems to be precisely one of those cases which the statute provides for by giving an appeal only upon condition that special leave shall be obtained.

'

However we think it right to say-after consultation with my colleagues-that, having had an opportunity to consider the questions at issue since the close of Mr.

Griffin's argument, we are all quite clearly of the opinion that the appeal could not succeed on the merits. We think it right to say that, in the circumstances.

S.C.R.

We think that the appeal should be dismissed on the. point of jurisdiction, because we are quite clear, on the material before us, that there is no jurisdiction. We are equally clear, if we did not deal with the appeal on that ground, that we should be obliged to dismiss it on themerits.

CHARLES DONOHUE ......... ERNEST LEFAIVRE ......... p NEUVILLE BELLEAU

APPLICATION for special leave to appeal under section, 74 (3) of the Bankruptcy Act from a judgment of the- Court of King's Bench, appeal side, province of Quebec.. Application granted.

St. Laurent K.C. for the application.

Boisvert contra.

J.-One of the questions of public interest which, the appellant contends, is involved in this appeal is: Whether the law of the province of Quebec which declares (with certain exceptions not material here) that no trans-fer of shares in a company shall have any effect until it is registered in the transfer register of the company (art. 6003 of Companies Act) is applicable in bankruptcy proceedings so as to deprive a creditor, who, for valuable consideration, holds an unregistered transfer of shares, of the benefit of J. that security.

If this question is involved in the appeal, leave to appeal, in my opinion, should be granted.

The court, however, from which leave to appeal is sought did not base its judgment upon that point. By a majority of three to two the court held that at the time the transfer in question was taken (six years before the debtor became a bankrupt) the debtor was in insolvent circumstances, and was so to the knowledge of the creditor Donohue, who held the unregistered transfer.

The debtor's insolvency, and

Donohue's knowledge thereof are questions of fact, and if the finding of fact be upheld the question of law above mentioned would not come before this court for determination.

The trial judge held that the assignments appeared to have been made in good faith for adequate valuable consideration, and that they were not void under any of the sections of the Bankruptcy Act. He also held that Donohue had not abandoned his rights in the Russian bonds under the terms of the writing of December 29, 1920; that the assignment of the shares in the Montcalm Land Company was valid as between the parties without registration, and that even if it were true that Belleau (debtor) was not solvent when the assignments were made, his insolvency was not notorious nor known to Donohue and that the transactions between them appeared to be transactions in the ordinary course of business which created no assumption of guilty knowledge by Donohue.

With the trial judge's finding that Donohue had no knowledge of the debtor's insolvency, two judges of the

Court of King's Bench agreed. The other three were of opinion that the circumstances raised a presumption of such knowledge on the part of Donohue.

Where a trial judge who has seen and heard both the debtor and the creditor finds as a fact that the creditor at the time of the transfer had no knowledge of the debtor's insolvency, the circumstances, to justify a presumption of

S.C.R.