ORMISTON BROWN et al., 6s-qualit
R
(DEFENDANTS)
................
ON APPEAL FROM THE COURT OF QUEEN'S BENCH FOR LOWER CANADA (APPEAL SIDE).
Sir W. J. C.J.-In this case I am obliged to follow the judgment I delivered in the case of Gilbert v. Gilman where the same argument was urged be- [VOL. XX. fore us in support of the jurisdiction.
In this case the only amount claimed is $1,000, a sum not sufficient to give this court jurisdiction. If hereafter a case should arise on other calls on this subscription, in which the amount in controversy is two thousand dollars, and the judgment is against the appellant, then as this court would have jurisdiction, lie could come before this court, and we should not be bound by the decision of an inferior tribunal.
As in this case it does not appear that the objection to the jurisdiction was taken in the respondent's factum, or by motion, the appeal will be quashed but' without costs.
J.-I agree that the appeal should be quashed.
This case comes under the provision of the statute which requires that the amount in controversy on an appeal to this court should be $2,000.
Here the amount in controversy is only $1,000 and this is ascertained by the conclusion of the declaration.
The plaintiff does not claim and could not get judgment for more than
$1,00, and all the defendant is defending himself against is this claim of $1,000. Then does this case involve the question of future rights, so as to give appellant a right of appeal ? For the reasons stated in
Gilbert v. Gilman (1) 1 am of opinion that it does not.
The exceptions in the statute are of certain specified future rights mentioned in sub-sec. of sec. 29 the Supreme and Exchequer Courts Act, and do not include such claims as are contended to be future rights in this case, as future liability for calls on shares.
The appeal should be quashed without costs.
J.-I agree.
J.-With great deference, this case is appealable.
The amount in controversy although but one call of the $10,000 alleged to have been subscribed, is in my opinion nothing less than the whole amount of stock in respect of which the call sued for is made. The defence is, and the judgment has held, that no subscription for stock ever was made which imposed any liability whatever upon the person who subscribed his name for the stock, whom the defendant represents. That judgment in my opinion can be relied upon as resjudicata to the effect that no liability in respect the $10,000 ever accrued and would be a complete answer to any action for any future call.
The case in my opinion quite distinguishable from every case in which this court has held that no appeal lay.
PATTERSON J.-I do not dissent from the majority the court. When there is a debt asserted for say 000 payable by instalments of $1,000 each-debitum in presenti, solvendum infuturo-and an action to recover one instalment is defended on grounds that involve the liability for the whole debt, the amount in controversy in the action, and on an appeal would be, in my opinion, the $10,000 and not merely the $1,000 instalment. The judgment in the action would be conclusive of the liability in any action for other instalments. On the same principle I should hold that in an action by a joint stock company for calls amounting to less than $2,000 upon stock subscribed exceeding that amount the full amount of the subscription, and not merely that of the particular calls, would be in controversy upon a defence going to the whole liability, such.for example, as that the subscription had been procured by fraud.
But the present claim is by the liquidator of a company which is being wound up, and it does not appear that as between him and the defendant there is any claim beyond the amount sought to be recovered in this action notwithstanding that the defendant might have been liable to the companv, if it had maintained itself as a going concern, for the amount of $10,000 for which his name appears in the stock book. I am, therefore, not prepared to say that the matter in controversy in this appeal amounts to the sum or value of $2,000.
Appeal quashed without costs.
Solicitors for appellants:
Carter & Goldstein.