Taylor v. Cummings

action upon him. His having alleged a defence does not disentitle the appellant from invoking the nullity of the judgment, as he does in his opposition.

I repeat it, the appellant is not, and never has been in default. Taschereau The judgment against him is not only voidable, but T e it is void as an absolute nullity.

J.-We are of opinion that this appeal should be dismissed, not only for the reasons stated by the learned judges below, but because in our view the action itself was baseless except in so far as it sought to set aside the deed in question and thereby render the property covered by it available for execution garnishment at the instance of judgment creditors. The claim of the plaintiff for an account against William Cummings & Son and the People's Bank, with a view of making them pay over to the creditors the moneys received by them under the deed on account of the assignor's indebtedness to them, is absolutely untenable under English law, in an action to declare a deed void under the statute of Elizabeth. No decree has ever yet been made ordering restitution of property parted with by the assignor of the deed persons claiming under him. That statute avoids the deed, nothing more-it leaves the creditor defeated or delayed to his ordinary remedies, execution, garnishment.

No English case has been shown where, in a suit of this kind, a personal liability for property disposed of has been chst upon persons taking under the deed, and the reason is obvious.

A creditor, as such, has no claim either at law or in equity to his debtor's property.

He must first obtain his judgment and charge it by way of execution.

In this view we must express our dissent from the decision of the Supreme Court of Nova Scotia in Cox v. Worrall it being understood, however, that we are not dealing with a case where persons deliberately combine and conspire to dispose of property in fraud of creditors, but only with a case where a deed is sought to be set aside and the assignee and creditors o have, in the meantime, in good faith, acted under it. The appeal should be dismissed with costs.

APPEAL from the judgment of the Court of Queen's Bench for Lower Canada (appeal side), affirming thejudgment of the Superior Court, District of Montreal, which dismissed the petition of the appellants praying that three special assessment rolls, in connection with the widening of a portion of Stanley street in the city of Montreal, should be set aside and annulled.

After having heard counsel on behalf of the parties, the court reserved judgment, and on a subsequent day dismissed the appeal and affirmed the judgment in the court below with costs.