Hyde v. Lindsay

of the amount of sales made by them of Hatfield's goods, less certain allowed charges, and that West and

A a his wife, for all their services rendered to Hatfield, should receive nothing whatever but one-half of the net profits arising from the business, and that Hatfield Gynn4e J. should have the right of determining that agreement at his pleasure at any moment.

. Upon such a contract it is impossible for us to hold that the goods placed by Hatfield in the hands of West and his wife, or of West, under the agreement, became the property of West, and therefore liable to the executions in the sheriff's hands against his goods, or that

Hatfield ever lost his property in the goods, except as to the goods sold by West and his wife, under the agreement, as to which there is no question here.

The appeal must be dismissed with costs.

J.-Motion for leave to put in security for costs. The respondent opposes the application on the ground, 1st. That the appellant has made an application to the Court of Appeal in Ontario for special leave to appeal under section 1 of 60 & 61 Vict. ch. 34, which application has been refused.

2nd. That the case is for less than $1000, and not appealable under that section, sub-secs. a, b, c, d. The appellant's answer is that this statute has no application, because the case was pending before it was passed.

The dates are: Writ issued April 10th, 1897 ; trial, 25th June, 1897; judgment reserved and rendered August 3rd, 1897; judgment in Court of Appeal, May 10th, 1898. The statute in question, 60 & 61 Vict. ch. 34, was sanctioned on the 29th June, 1897.

We have to hold under the decisions of this court that the case is appealable, and that the statute does not apply to cases then pending (on June 29th, 1897), though the judgment of the Court of Appeal has been rendered since.

If we were not fettered by authority, I, personally, would hold that the statute applies to all cases in which the judgment of the Court of Appeal has been given since it was sanctioned, but I am not at liberty to give effect to my individual opinion. In IUurtubise v. Desmarleau and Couture v. Bouchard the judgments of the Quebec Court of Review appealed from were given, or held to have been given, on the very same day that the Act giving the right to appeal from that court was sanctioned.

The appeals were quashed. The decisions on those cases, however, do not directly apply here, though it might perhaps be said that it was assumed in both that if the judgments appealed from had been rendered after the passing the statute, they would have been appealable.

Strong J. (now Chief Justice) gave his opinion that even in that case the judgments would not have been appealable. However, the subsequent decisions of the court on the matter leave no room for doubt.

In the case of Williams v. Irvine the action had been instituted in 1890, tried in June, 1891, and judgment reserved, subsequently given on the 17th November, 1891. Judgment in Review appealed from 29th February, 1.892.

The statute giving an appeal from the Court of Review had been sanctioned on September 30th, 1891.

The appeal was quashed, because when the action was instituted there was then no right of appeal from the Court of Review. In Mitchell v. Trenholme the action was for $5,000; the judgment in first instance given on the 27th September, 1890, granted $300 to plaintiff. The Court of Appeal confirmed that 'judgment on the

28th February, The statute which enacted that when the right to appeal is dependent upon the amount in dispute, the amount demanded is thereby meant, was passed on the 30th September, 1891.

The appeal was quashed, as when the action was instituted it was the amount granted that governed, and as the amount granted by the judgment appealed from was under $2,000 the case was not appealable.

In Cowen v. Evans the judgment in the Superior Court, disa missing an action for $3,050, had been rendered on the . 5th December, 1891.

The judgment of the Court of Appeal on 28th February, 1893, had reversed the er judgment of the Superior Court, and granted $880 to plaintiff. The defendant's appeal to this court was quashed, because the statute passed on September 30th, 1891, giving the right to appeal in cases where the amount granted was less than $2,000, if the amount demanded had been $2,000 or over, did not apply to cases pending en deliber4 before the Superior Court on that day. The words en ddlibr6 in the report of that case seem to have crept in by error, for, on the same day, in Mills v. Linoges (2), the appeal was quashed in a similar case, where the judgment of the Superior Court had been given in April, 1891, five months before the statute, though the judgment appealed from had been rendered over twelve months later.

A similar case, The Montreal Street Railway Carridre is noted as a foot note, at page 335. Here, upon this application, we have the converse of these cases.

There, it was a statute giving the right appeal that was held not to apply to cases pending before the statute, though the judgments appealed from had been rendered since the statute had been enacted.

Here we have the question presented under a statute taking away the right of appeal in cases where it existed previously.

But I cannot see that it alters the result. If the statute in the former cases does not apply to pending cases, I do not see upon what principle we could hold that the statute in the present case does apply to pending cases.