J.
T1.
DEFENDANTS; SCOTT & SON .
. ...........
J. W. SCOTT & SON (DEFENDANTS)
RESPONDENTS. APPEAL FROM THE OF APPEAL FOR ONTARIO. Appeal
Amount in controversy
Creditor's action
Transfer cheque-Preference.
An action was brought by creditors, on behalf of themselves and all other creditors, of an insolvent to set aside the transfer a cheque for made the insolvent to & Son as being a preference and therefore void.
At the trial the action was dismissed and this judgment was affirmed by the Divisional Court Ont. L.R. and the Court of Appeal Ont. L.R. 232).
On appeal to the Supreme Court of Canada: Held, Girouard J. dissenting, that the only matter in controversy was the property in the sum represented the cheque and such sum being more than the appeal would lie.
APPEAL from a decision of the Court of Appeal for Ontario(1) affirming the judgment of a divisional court(2) which maintained the judgment at the trial dismissing plaintiffs' action.
*PRESENT:-Fitzpatrick C.J. and Girouard, Davies, Idington and Duff JJ.
(1) Ont. L.R. 232; sub the judgment of the majority.
concurred in the judgment of the Chief Justice.
J.-This is a motion by the respondents for an order quashing the appeal herein.
The action was brought by the appellant on behalf of themselves and all other creditors of defendant McGillivray to have it declared that the transfer by McGillivray to the respondent Scott of a certain cheque was as against the creditors of McGillivray preferential and void and to recover for purposes of distribution amongst the creditors of defendant McGillivray the proceeds of the said cheque.
The action was tried before the Hon. Chief Justice Falconbridge on the 7th November, 1905, and dismissed.
An appeal was taken to the Divisional
Court of the High Court of Justice for Ontario and by that court dismissed. The later appeal from such dismissal was taken to the Court of Appeal for Ontario and also dismissed. It is from this dismissal by the Court of Appeal that the plaintiff, now appellant here, proposes an appeal to this court. The questions raised on this motion are whether or not such an appeal will lie as of right.
It is said and not denied that the judgment got by the appellant against the debtor McGillivray was for a sum exceeding $1,000, but since the recovery of that judgment, $100 has been paid thereon reducinrg the amount now due below the sum $1,000.
It is shewn that the cheque in question was for an amount exceeding $1,000.
It appears that McGillivray's total liabilities are much in excess of the sum of $1,000.
The question raised is shortly, whether or not the amount of the judgment against the debtor or the amount of the security sought to be recovered and made applicable to pay said judgment debt, and all other debts of the said McGillivray, is to be looked at as the test of the amount of the matter in controversy in appeal within the "Supreme Court Act,"
R.S.C. [1906] ch. 139, section 48, sub-section (c).
It seems difficult if not impossible to reconcile all the decisions upon the jurisdiction of this court.
It is exceedingly desirable that any decision in regard thereto should proceed upon the broad ground of whether or not the particular case for sonsideration comes within the purview of the Act conferring jurisdiction rather than by refining upon the possible J. meanings that may be attributable to a few words, .in the Act to be considered.
The words, when isolated, may be susceptible of many diverse meanings.
Some of these meanings may be found quite inapt when viewed in light of the general scope and purpose of the Act in which they are found.
In the judgment of this court in the case of Cotl v. The James Richardson Co. (1), at p. 49, the following language was used:
If we apply this broad ground of the purview the Act and this language to the consideration of the questions raised by this motion, can there be any doubt that the principles upon which the decision in Cot6 v. The James Richardson Co.(1) proceeded and that decision, must lead to holding that the Court has jurisdiction to hear the appeal now presented. In substance Cot6 v. The James Richarson Co. (1) was only what in Ontario would be called an interpleader.
The creditor there, if successful ultimately, would have had to share the fruits of his victory with other creditors.
The claimant of the goods in that case had suceeeded in the court below.
The creditor, contesting that, came here with a judgment insufficient in amount, if that amount were to govern the right of appeal, so as to give it as of J. right.
We held the value of the goods attached, which
-all hung upon the same title, must decide the matter in controversy.
It was more difficult to reach that conclusion in a case like that coming from Quebec, than it would have been in an interpleader case coming from Ontario.
The provisions of the Act relative to the appeals from Quebec rendered it so, and the many decisions
(hard to reconcile) upon those provisions, rendered it still more so.
What we have here in question is the title of the respondent as against creditors to a cheque which was liable to seizure to satisfy the claims of creditors
,of the payee, if respondent's title was void as against them.
Had the cheque been seized by the sheriff, as the wood in Cold v. The James Richardson Co. (1) by the bailiff, the cases could not have been by any possibility distinguished, so as to enable us to refuse to hear the appeal of the creditor.
The procedure by which the attack on the title is made certainly cannot in reason and justice make
-any difference.
But when we consider what the nature of the action here in question is, and the judgment we would be bound to render if the appeal should succeed, can there be any doubt in the matter?
The appellant sues on behalf of himself and all creditors, and if he succeed in his proposed appeal, the judgment here must be that the respondent account for the fil amount of the cheque to answer the claims of the creditors.
These claims it appears as stated above exceed in the aggregate the amount in controversy necessary to give jurisdiction.
It is no answer to this to say that the appellant may as dominus litis drop his appeal for any reason he see fit, as he could have dropped his action for any reason he might have seen fit.
Even in this light of the amount involved the appellant suing so as to represent an aggregate sum, over $1,000, has much to support him.
I would prefer, however, to test and to rest the right of appeal upon the value of the property in question.
It will, if adhered to, work out much more satisfactorily than the test suggested by respondent as a test of jurisdiction in a large class of cases possible to arise in Ontario and those provinces and territories which have the same system of law and have adopted the same sort of legislation as Ontario, for the realization of the rights of creditors in many ways as against those seeking to defeat creditors or the majority of creditors.
It would seem anomalous to have appellant deprived of right of appeal in this case and right of appeal allowed an assignee representing all creditors. though the security in question were the same. In this connection the Act respecting assignments. and preferences by insolvent persons R.S.O., 1897, ch.
147, must be borne in mind.
The mode of attacking an alleged fraudulent as- . signment adopted in this case is not perhaps so usual as that of a creditor who cannot after an assignment under said Act, persuade his fellow creditors to venture to make the attack, but is given, no matter how small his claim, the right under conditions to attack in the name of the assignee what may be fraudulent on a large scale when that is tested by the value of the property in question.
It seems to me that the decision in Cot v. The
James Richardson Co.(1) should not be lightly frittered away.
The case of The Canadian Breweries Co. v.
Gari6py (2) was clearly distinguished and though in view of the ultimate results which the appellant sought there to reach might seem in reason and justice a proper case to be placed on the same footing as CotM v. The James Richardson Co. (1) it would have been legislating rather than adjudicating to have so applied the latter.
The status of an appellant in relation to any possible right to be acquired over a thing by pursuing it in litigation as a means of testing the amount in controversy, is not only in principle distinguishable but by a long line of authorities in this court, distinguished from the test afforded by the possible fruits he may hope to reach by such pursuit.
The motion should be dismissed with costs.
DUFF J. concurred with the Chief Justice.
Motion dismissed with costs. &