Judgment of the Court
appellant's action contains only the following conclusions:- A A The action was dismissed by the Superior Court on the ground, amongst others, that the conservatory attachment is a provisional remedy and only a proceeding accessory to a principal demand based on a debt which is exigible, and that such a proceeding cannot be taken out by itself without a claim, which is made the object of the principal demand. That judgment was affirmed by the majority of the judges of the Court of King's Bench (Appeal Side), mainly on that ground.
The appellant now brings the case to this Court without special leave from the Court of King's Bench (Appeal Side).
It is apparent that, on the fAce of the conclusions, there is no amount or value in controversy in the appeal in accordance with the requirement of section 39 of the Supreme Court Act, and, therefore, there exists no foundation for the jurisdiction of this Court as of right. The appellant accompanied his inscription in appeal with an affidavit to the effect that the moveables, on which the conservatory attachment was intended to be executed, were of a value of at least $2,500; but the moveables themselves, or their value, are not in controversy in this appeal.
The only matter in controversy is whether the Courts below rightly decided that the appellant's proceedings could not be maintained in view of the fact that they were not accompanied with a principal demand for a pecuniary condemnation, or, in other words, that a conservatory attachment is only an accessory procedure, which cannot be taken out alone and without an accompanying principal demand.
Such right is not appreciable in money
(Gatineau Power Company v. Cross) (1).
Mr. Geoffrion, for the appellant, pointed to the fact that the respondent, whose effects had been seized, had the effects restored to him by giving the seizing officer, who was bound to accept them,. good and sufficient sureties, who justify under oath to the amount indorsed upon the writ, with interest and costs, that he would satisfy the judgment that may be rendered; and that the sureties so given swore to an individual amount of $2,500, or a total of $5,000. This was done under article 938 of the Code of
Civil Procedure; and he claimed that the sureties so given took the place of the effects that had been seized and that, accordingly, they fixed -the amount or value in controversy in the appeal. We cannot accede to this ingenious argument. The total amount for which security was given is no more at stake in the present litigation than the goods themselves which it replaced in the eyes of the law.
The question at issue still remains whether the appellant was entitled to bring out a conservatory attachment without any principal demand and whether the two Courts below were right in holding that he was not. There is no amount or value in this matter and, as the appellant did not obtain, from the highest court of final resort having jurisdiction in the province of Quebec, a special leave to appeal from the judgment, the reversal of which he is now seeking, he has not succeeded in convincing us that we had jurisdiction to hear the appeal.
Statutes and regulations cited
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Supreme Court Act