Schlomann v. Dowker et al.

testations of the appellants to the plaintiffs' demand for a judicial abandonment for the benefit of creditors. The plaintiffs were unsecured creditors, for $687.04, of a commercial firm doing business at Montreal under the style of "The Lynn Shoe Co.", alleged to be composed of. John G. Lynn and the two appellants, and, upon the said firm ceasing to meet liabilities, the plaintiffs made a -demand for a judicial abandonment for the benefit of creditors generally upon the members the said firm. The appellants filed separate contestations of the demand denying that they were partners, and on the trial of the issues joined the Superior Court maintained both contestations and dismissed the demand as unfounded in respect of the contestants. On appeals taken by the plaintiffs these judgments were reversed by the Court of Queen's Bench, and the demand for abandonment declared well founded inasmuch as it had been established by evidence that the contestants were partners in the firm.

The appellants then respectively filed judicial abandonments in each of which it was declared that exception was taken to the judgments rendered by the Court of Queen's Bench, in appeal, that an appeal therefrom to the Supreme Court of Canada was intended to be taken, recourse for which was reserved, but that the abandonments were consented to under such reserves, " in order to avoid a writ of capias," and other " penalties, trouble and costs."

A curator was at once appointed to the abandonment who proceeded to the distribution of the estate according to law, and subsequently, the appellants filed bonds for security the appeals to the Supreme Court of Canada.

Belcourt Q.C. contra.

The recourse for the appeal was specially reserved in each case, and in each the effect of the declaration of the existence of a partnership by the judgments appealed from will be to hold the appellants liable for many thousands of dollars of debt over and above the amount of $11,375.90 realised from the abandoned estate. There never has been any acquiescement so far as this liability is concerned, and the consent to abandon was made under stress.

(Oral).-Assuming that we have jurisdiction in this case (but without actually deciding that question), there cannot be any doubt that there has been acquiescement by the appellants in the judgments sought to be appealed from, for they have voluntarily made the abandonment and executed the orders made against them, thus leaving the matter in a position where it is impossible they can get relief against their own deliberate and voluntary acts.

This is not exactly a case such as we have hitherto considered as a proper one for a motion to quash, but we are of opinion that in future this proceeding should be adopted in cases like the present, as it has the advantage of avoiding costs.

The coart disposes of this appeal on the grounds alone that the appellants have acquiesced in the judgment of the Court of Queen's Bench and abandoned their estate in conformity therewith and that there is now left nothing but a question of costs in respect of

. which the court always declines to entertain jurisdiction, though not incompetent to do so.

The appeal is quashed with costs of the motion to the respondent.

J.-I agree with His Lordship the Chief Justice, and I think that in cases like the present where the appeal can only involve a question of costs the procedure of moving, when possible, to quash the appeal should in future be followed.

GWYNNE J.-On the understanding that there is no res judicata in this case as to the question of partnership, I concur in this judgment.

J.-I am not quite sure that the abandonment was not made under stress and on account what might be pressure. I enter a doubtful assent. J.-I agree with His Lordship the Chief Justice.

MARIE A. B. CHEVREFILS (CoN-R

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APPEAL from the judgment of the Court of Queen's Bench for Lower Canada, appeal side, reversing the judgment of the Court of Review at Montreal and restoring the judgment of the Superior Court for the district of Arthabasca, which had dismissed the appellant's petition for the cancellation of the respondent's appointment as tutrix to her minor children. Under the provisions of the Civil Code relating to the appointment of tutors to minor children, a family council was convened which elected male relatives as tutor and sub-tutor to the minor children of the late L. M. A. Noel, deceased, and formally excluded the widow from the tutorship of her children, issue of her marriage with the deceased.

On the report of the tutelle proceedings being presented for homologation, the Prothonotary of the Superior Court, District of Arthabasca, ignored the advice of the family council and assuming to act in conformity with the third sub- :-Sir section of article 282 of the Civil Code, named the widow as tutrix in place of the male relative recommended for the office by the family council. The appellant then petitioned the Superior Court for the cancellation of this nomination, and, after hearing the issues joined upon the contestation by the respondent, Choquette J. dismissed the petition with costs. This judgment was reversed by the Court of Review at Montreal, and the respondent dismissed from office, but on her appeal to the Court of Queen's Bench, the judgment now appealed from was rendered reversing the judgment of the Court of Review and restoring that of the trial court in her favour.

Fitzpatrick Q.C. contra.

J.-This is an appeal from a judgment of the Court of Queen's Bench dismissing a petition of the appellant to set aside the appointment of the respondent as tutrix to her children. We have no jurisdiction in the matter.

There is no pecuniary amount in dispute, and the matter in controversy does not

An affidavit is filed that the estate left by these children's father is worth over $2,000.

But that cannot give us jurisdiction.

No part of the estate is in controversy in the case. The appellant, to support his right to appeal, relies upon the words of the statute, sec. 29,

But the case of O'Dell v. Gregory is a binding authority that these words are not applicable to this case.

J. In the case of Mitchell v. Mitchell relied upon by the appellant, upon an action to remove an executor this court entertained the appeal, and the case might perhaps not be easily distinguished from this one. However, the court does not appear there to have passed upon the question of jurisdiction. The appeal being dismissed, it was unnecessary to determine that point, as is often done in such a case.

Bain v. Anderson

The motion to quash is granted with costs.

Appeal quashed with costs.