Judgment of the Court
J. :-This case is before the court on a motion by the respondent to quash the appeal taken by Kinghorn from a judgment of the Court of Appeal, in Montreal, dismissing his, Kinghorn's, contestation of an opposition afin de conserver for $24,000 filed by the respondent on the proceeds of a sale upon the execution by Kinghorn against Hall & Co., of a judgment by him obtained against the said Hall & Co., for $1,129, the judgment now appealed from, having maintained the said opposition for $24,000, and ordered that the respondent be collocated au marc la livre. The proceeds of the sale amount to $930.
I am of opinion that this appeal must be quashed, according to the well settled jurisprudence on this point, viz., T that it is the interest of the party appealing from a judgment that has to be taken into consideration, to determine whether the case is appealable or not. Here the appellant's judgment is for $1,129, and to that amount and that amount alone, is he pecuniarily interested in the present case The case of Gendron v. McDougall (1) is clearly in point. In that case, Gendron had obtained a judgment against one Ogden for $231, and in execution thereof seized an immovable worth $2,000- McDougall filed an opposition afin de distraire claiming the land so seized as his property.
Gendron contested that opposition.
The Court of Queen's Bench dismissed his contestation and maintained McDougall's opposition.
Gendron then appealed to the Supreme Court, but, though the question at issue on McDougall's opposition was one of title to a piece of land, and that piece of land was worth $2,000, this Court quashed Gendron's appeal, on the ground that his pecuniary interest on his appeal was limited to $231, the amount of his judgment. That case, which is binding upon us, seems conclusive upon the question. The appellant invoked in support of his right to appeal the case Mac Farlane v. Leclaire but as I view that case it does not help him.
The facts of that case were as follows:
Leclaire brought an action in the Superior Court against one Delesderniers for X417.0.8, Canadian currency, with a saisie-arre't or attachment before judgment in the hands of MacFarlane.
MacFarlane upon the saisie-arrdt denied that he had any goods, effects, of Delesderniers' in his possession, but that the property alleged to be the property of Delesderniers had been purchased by him for from one Pr6vost and were his property.
Leclaire, the plaintiff, Tas~ereau contested this declaration and alleged that the sale invoked by MacFarlane was null and made in fraud of Delesderniers' creditors. The Superior Court dismissed the contestation on the declaration of the tiers-saisi, on the ground that as Pr6vost was not a party to the proceedings, the court could not declare the transfer of the property to the tiers-saisi, MacFarlane, by Provost, to be fraudulent; the Court of Queen's Bench on appeal reversed the judgment of the Superior Court, maintained the contestation by Leclaire of MacFarlane's declaration and declared the goods in MacFarlane's hands to have been those of Delesderniers.
The appellant, MacFarlane, being dissatisfied, applied for and leave was granted by the Court of Queen's Bench to appeal to the Privy Council. Leclaire thenapplied by petition to the Privy Council to have the leave rescinded on the ground that the matter in dispute did not exceed the sum or value of £500 sterling, the amount fixed by 34 III., c. sec. 30, and therefore that the judgment of the Court of Queen's Bench was final.
But the Privy Council dismissed that petition, and held that MacFarlane's pecuniary interest on the appeal being over £500 sterling, the case was appealable under the statute. Now it is evident that in that case all of MacFarlane's goods, amounting in value to £1,600, were put in jeopardy by the judgment maintaining the contestation of his declaration, as every article of it might have been sold to satisfy Leclaire's writ of execution.
And MacFarlane, in that case, stood in the position that Larne, the respondent occupies in the present case, whilst Leclaire occupied a position analogous to the position Kinghorn, the present appellant occupies here.
And their Lordships in the Privy Council clearly intimate, though of course without determining it, that, had the judgment in the case of MacFarlane v. Leclaire been against Leclaire, he, Leclaire might not have had a right of appeal, because in such a case, Leclaire's pecuniary interest on the appeal would not have amounted to £500 sterling.
In a case of Gugy v. Gugy, as long ago as 1851 (2) under an analagous statute,
Sir James Stuart laid down the rule that on a judgment dismissing an opposition for £10,000 filed by a defendant against an execution for £200 being the balance of a judgment against him for £900 the case was not appealable to the Privy Council.
The case of L'Espirance v. Allard, in a foot note to that case of Gugy v. Gugy is in the same sense.
I refer also to Bourget v. Blanchard and in appeal and for the facts of the case See also Champoux v. Lapierre (6); Martin v. Mills ; Russell v. Graveley
The statute 54 & 55 Vic. does not affect this case. This is not a case where the amount demanded and the amount granted, are different.
Appeal quashed with costs.