Turgeon v. St. Charles

Ps-QUALITP

APPELLANT; - (CONTESTANT)

....................

March 28, *Oct. FRANQOIS-XAVIER ST. CHARLES

(PETITIONER) .......................

E.P.E. APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

cause, matter or judicial proceeding originating on petition to a judge in chambers, in virtue of articles 875 and 876 of the Que- Code of Civil Procedure, is appealable to the Supreme Court of Canada where the subject of the controversy amounts to the sum or value of two thousand dollars.

It is inconsistent with the policy of the "Quebec Licence Law" (R.S.Q., 1909); that the ownership of a licence to sell intoxicating liquors should be vested in one person while the licence is held in the name of another.

An agreement having that effect is void inasmuch as it establishes conditions contrary to the policy of the statute. Judgment appealed from (Q.R. 22 K.B. reversed, Brodeur J. dissenting.

APPEAL from the judgment of the Court of King's Bench, appeal side(1), affirming the judgment of Mr. Justice Greenshields, in Superior Court chambers, in the District of Montreal, by which the respondent's petition was granted with costs.

*PRESET:-Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin and Brodeur JJ.

(1) K.B.

SUPREME OF [VOL. XLVIll. The proceedings were commenced by petition to a judge in chambers by the respondent whereby, on his own behalf as well as in his capacity of testamentary executor of the late Ferdinand Paquette, deceased, he claimed the property, goodwill and accessories of a restaurant, including the licence to sell spirituous liquors in connection therewith, whereof the respondent, as curator of the insolvent estate of Joseph Goderre, had taken possession by virtue of a judicial abandonment. These proceedings were instituted under the provisions of articles 875 and 876 of the Quebec Code of Civil Procedure. The prayer of the petition was granted by Greenshields J. and his decision in favour of the petitioner was affirmed by the judgment now appealed from.

On the argument the court raised the question of its jurisdiction 'to hear and determine the appeal, which depended on whether or not the originating petition was or was not a proceeding in a superior court within the provisions of sections 36, 37 and 46 of the "Supreme Court Act," R.S.C., 1906, ch. 139. The material circumstances of the case are stated in the judgments now reported.

(oral).-This appeal must be allowed with costs, reserving to the respondent his right to rank on the estate as a privileged creditor with respect to the amount paid by him in order to obtain -the transfer and renewal of the licence in question.

J.-I concur in the opinion stated by my brother Anglin.

J.-The appellant is curator of the estate of one Goderre who had been a hotelkeeper in Montreal for some years and up to the time of his judicial abandonment, on the 21st -of March, 1910, of his property as an insolvent.

As such he held at that date a licence to sell intoxicating liquors.

This licence had been issued to him under the provisions of the "Quebec Licence Act," on the first of May, 1909, for one year.

The appellant applied for and got the consent of the Licence Commissioners pursuant to the provisions of the said Act to the transfer to him, as curator, of said licence, and later procured from them, on the first of May following, a renewal of said licence for the next ensuing year from said date.

The appellant, as such curator, having taken possession of the business premises and stock-in-trade of the insolvent, was duly proceeding to sell same with said licence by public auction to be held on the 31st May, 1910, when the respondent, on the 26th May, 1910, applied by petition addressed to have the said curator ordered to turn over to him the said licence and certain stock-in-trade relating to said business.

The prayer of the petition was granted by Mr. Justice Greenshields and his order has been upheld by the court of appeal. The appellant seeks a reversal of said judgment.

The petition is founded upon articles 875 and 876 Jof the Code of Civil Procedure.

During the argument a question was raised as to whether an appeal would lie to this court from such a judgment.

Section 46 of the "Supreme Court Act," defining the grounds of appeal from the court of final resort in the Province of Quebec, seems comprehensive enough to include the subject-matter in controversy herein which is admitted to be above two thousand dollars in value.

It is urged that -the proceeding in question was not one taken in the Superior Court, but was a mere chamber motion and, hence, non-appealable.

The distinction between a judge in chambers and his sitting as a court is, for many purposes, quite valid.

The Code of Civil Procedure (in like manner as procedural legislation does in other provinces on the like subject) declares, by article 24, that the court has the same powers as a judge over matters assigned to the latter by article 71; that the judge can adjourn an application brought 'before him into the court or vice versd, and, by 'article 72, that a decision of a judge in chambers shall have the same effect as judgments of the court 'and be subject to appeal 'and other remedies -as against judgments.

Article 876 is as follows:- It would seem as if this remedy had been provided as a specific mode of trial and adjudication relative to the title to property which had passed into the curator's hands and to which a third party might have made a claim. Its peculiar terms may have a bearing (which I pass for the present) upon the merits of this appeal.

The question of our jurisdiction, it is to be observed, does not, having regard to the terms of the

"Supreme Court Act," necessarily turn upon the form but upon the substance of the question of whether or not the proceeding has been had in a superior court.

I think our jurisdiction to hear this appeal is quite as well founded as it was in the case of The North

British Canadian Investment Co. v. The Trtstees of St.

John School District (1), where the question was the right of appeal when an officer under the "Land Titles

Act" of the North-West Territories had been directed by a judge to make an entry affecting a title; or the case of The City of Halifax v. Reeves(2), when the proceeding was begun and founded upon a petition to a judge in chambers.

As to the merits of the appeal there is nothing, so far as I can see, to be gained by going into many of the questions argued before us. It must be determined by the question of whether or not, having regard to the provisions of the "Quebec Licence Act" (which alone creates thereby such rights of property or otherwise as any one can have in, to or over such licences)

the respondent has any such right of property in the licence as to entitle him to the order made directing the curator to transfer -it to him.

Not even the court can have any power or authority directing its curator or any one else to meddle with such a transfer unless given by said Act the power to do so.

In 1906, the hotel business in question with the then stock-in-trade, the goodwill, the lease and licence had been transferred by one Thibault to the respondent and a partner named Paquette, since dead but whom he represents, and by them re-transferred to the said Goderre under an instrument which contained what was expressed to be a suspensive condition and is claimed now to 'have been so effectively such that the respondent and Paquette could, and he now, personally and as representative, can claim that, by reason of default in the terms of the payment of the price of that sale to Goderre, the said licence has reverted to him by reason of the terms of the condition or became -his because the said Goderre had so covenanted.

It may be observed just here that by reason of the licence only having a yearly existence it is rather difficult to define in legal terms just what the claim is. I, therefore, 'try to put it thus alternatively, and express something that we are expected to grasp, however elusive it becomes once it is touched or some one tries to touch it.

Having regard to the purview of the "Liquor Licence Act" and the provisions thereof specially applicable to 'the curator of an insolvent estate, I do not think such a contention as is thus set up is maintainable.

Article 923 of the said Act is as follows

It would puzzle one to frame language more destructive than this of such a claim as respondent sets Idintn up. If words mean anything these must mean that the licenbe was personal and remained valid only so long as the person named continued to be the occupant of the premises and the owner of the business there carried on. The moment he ceased to carry on the business that moment the licence lapsed save in so far as preserved the licence, and then only in and for the interests of those named in regard to any preservation of it.

There is not a sentence or semblance of a provision in the Act making any preservation of such licence subserve the purposes of any such bargain as the respondent relies upon.

Indeed, there are provisions distinctly anticipating the lapsing of licences not specifically preserved by the terms of the Act and dealing with the accrual of benefit the public interests or policy may be expected to derive therefrom.

This, I most respectfully submit, ends or ought to have ended any pretension on the part of the respondent to invoke the powers of the court or any judge thereof acting under article 876 which primd facie enables only a dealing with property seizable by the sheriff and claimable by some party having a title thereto or right therein of some kind. No court or judge can re-create that which has perished, still less make a valid order which in effect contravenes the plain duty the law in question provides for the doing Of, by an officer whose peculiar duty it is to serve the interest of the general creditors.

Idington J.

But that is not all; for article 953, sub-section (b), which is specifically directed to cover the cases of transfers referred to in above article 923, provides for a special transfer fee of $75, when it is granted in consequence of a voluntary or judicial abandonment in a case of bond insolvency, and, by sub-sections 3 and 4, in the case of the death of a licensee or of a voluntary or judicial abandonment of property on his part, as follows:- S. Save in the case of an abandonment of property or of the death of the licensee, no transfer of a licence shall be made until after the expiration of forty days from the date upon which the licence was delivered by the collector of provincial revenue. 4. In the case of the death of a licensee or of a voluntary judicial abandonment of property on his part, a delay of thirty days is granted to his heirs or representatives, or to the provisional guardian or the curator of his estate,* during which delay the licence continues in force, in order to give them an opportunity to apply for a transfer.

And by sub-section 5 of article 953 the transferee of a licence approved of and duly certified as provided therein is to enjoy the rights which accrued to the original licensee.

3ut in the case of the death of a licensee, or of a judicial abandonment on his part, the municipal council shall give the preference to the purchaser of the stock-in-trade of the licensee's estate and shall transfer the licence to him or to the person recommended him provided such purchaser or such person so recommended of good character and repute for the same premises or for other premises should the landlord of the deceased or transferror refuse to accept such transferee as his tenant.

How can respondent claim to have fallen within the first part of this sub-section or to defeat the second part just quoted ?

Then article 922 expressly declares such

There are other provisions indicating, as in article laington 924, the qualifications and formalities to be observed to get or hold a licence; and, as in article 940, respecting preference for a particular place; and, as in article 954, giving three months from date of abandonment "failing which the licence is of no avail"; and, in article 1082, when not a bond fide case of insolvency the general policy of the Act and the purpose of protecting creditors of an insolvent licensee.

But nothing is to be found to preserve the rights of persons whose whole scheme was part of a system of trafficking in licences for the direct and incidental profits of such traffic and but a palpable evasion of the said policy of the legislature and its purpose in this enactment to protect creditors of an insolvent.

How, for example, when the lease of the premises was got by Goderre for a new term of five years and this lease has thus got beyond respondent's control, can he claim a transfer without the premises it applies to ? True, the landlord may be got to consent, may be pacified or he may have assented to all this, though it does not appear in evidence. But the possibilities are such as to be quite unworkable -unless we adopt the theory that a licence once granted is a thing to be bargained about and handed round from hand to hand, just as a horse or other chattel, all of which is not what the Act contemplates.

There are also provisions to meet the case of coinpanies getting and dealing with licences through their employee or nominee.

These provisions of business convenience, in such cases safeguarded against abuse, shew it never was intended such a bargain or consent as respondent relies upon should be held valid.

If it had been the law before that such rights could exist or be created, then there was no need for such a special enactment relative to companies.

It was because substitutes or nominees of the capitalist or liquor dealer behind the scene would not be tolerated that this special enactment was made to provide for. Such rights as any one can have in regard to a licence must rest upon the Act and respondent is not one of any such class as the Act gives a right to.

The attempt elaborated in respondent's factum to make out of the several exceptions the Act provides for a rule of law that, hence, the licence is a piece of property, just as any other, is a curiosity in the way of legal argument deserving of notice, but, I respectfully submit, no more need be said than state it. The licence is annual and only good for the year. Some sort of consideration is given relative to parties who may have been for several years holders of a licence for the same place, but that does not help respondent. Moreover, his whole arrangement was such a conflict with the policy of the Act as, in my opinion, to render the whole security illegal. The stock-intrade claimed was of so little value as to render this branch of the dealing of small consequence herein. No separate claim was urged here on that head. We have pressed upon us the jurisprudence of Quebec on the subject, but the Act, in its main features, is so like what prevails elsewhere we cannot assent thereto and apply other principles of construction elsewhere even if we could find such jurisprudence had been older than shewn herein.

The appeal should be allowed with costs throughout and the petition be dismissed with costs. Of course, respondent is entitled to be recouped his advances to keel) the licence alive since the insolvency. DUFF J.-I concur in the result.

J.-I am unable to accede to the suggestion that there should be read into section 37(a) of the "Supreme Court Act" words which would restrict its application to cases originating in the Circuit Court or in some other court. That provision dispenses, in cases of the classes therein specified, with the usual requirement that, in order to be appealable to this court the proceeding must originate in a Superior Court.

'he word "court" is not mentioned in clause (a) ; it does occur in clauses(b) and (d). We have before us the judgment of the highest court of final resort in the Province of Quebec rendered in a judicial proceeding in which the matter in controversy exceeds the value of $2,000.

This case, therefore, in my opinion, fulfils the conditions upon which a right of appeal is conferred by section 37.

Thibault, the original owner of the business and licence in question, on the 14th of December, 1906, executed a contract of sale to Messrs. St. Charles and Paquette of his business, stock-in-trade, licence, etc. A special term of the contract was that Thibault would transfer the licence to his vendee's nominee. Pursuant to that undertaking he transferred the licence to one Goderre, who subsequently became insolvent and made an abandonment under which the appellant, Turgeon, became curator of his estate. The Licence Commissioners approved of the transfer from Thibault to Goderre and the latter thus became the holder of TUBEoN the licence of which several renewals were subse- CA.

quently issued to him. Concurrently with the transaction between Thibault and St. Charles and Paquette and -the transfer of the licence to Goderre an agreement was made with Goderre by St. Charles and Paquette whereby they sold to him the business, stockin-trade, licence, etc., subject to a suspensive condition in the following terms:- F

Faute par monsieur Goderre d'observer toutes les conditions qu'il a ci-dessus assum6es, ou faute par lui payer, trente jours 6ech6ance, un seul des versements qu'il s'est ei-dessus engag6 payer, messieurs St. Oharles et F. Paquette auront le droit de reprendre possession imm6diate du dit fonds de commerce restaurant licencid, avee accessoires, tel que ci-haut defini, comprenant la licence pour la vente des liqueurs spiritueuses attachde au dit fonds de commerce et les renouvellements de cette licence, avee le droit d'avoir telle licence transport6e au nom de toute persozte d6sign6e par eux, et sans etre tenus de donner aucun avis A fin A monsieur Goderre, ni d'user d'aucun procC6 judiciaire, ni donner sucune indemnit4 1t Monsieur Goderre, les sommes d'argent jusqu'alors pay~es par dernier devant demeurer la proprie-te de messieurs Paquette et St. Charles et de Monsieur Thibault, A titre de dommages4nt6rots liquides, 4tant sp6eialement convenu que le pr4sent contrat est fait sujet a la condition suspensive que tout ce que ced6 et transporto ici demeure et demeurera la propriet4 de messieurs St. Charles et Paquette jusqu'I qu'ils aient 6t intfgralement payes du prix qui forme la consideration du present contrat, contrat n'tant qu'une promesse de vente et les parties 6tant d'accord pour convenir que Particle du code civil la Province Quebec n'aura pas lieu de s'appliquer ici.

In my view under these documents St. Charles and Paquette never became owners of the licence in question. They certainly were not at any time the holders of it.

Assuming that a licence under the "Quebec Licence Law" is property (I rather think it is not), I am of the opinion that the licence in question and all right of property in it passed directly from Thibault to Goderre.

If so, no property in the licence passed from St. Charles and Paquette to Goderre under the contract between them; and, since the suspensive clause in that contract in terms purports to affect only what passed or was transferred by it, the licence would not be subject to that clause. Neither could it "remain" (demeure) the property of

St. Charles and Paquette.

But if this be too narrow a view to take of the purpose and effect of the two documents of the 14th of

December, 1906, and if under the Thibault sale St.

Charles and Paquette acquired some right of property in the licence as well as in the other subjects of sale, then, if the agreement between Goderre and St.

Charles and Paquette should be construed solely according to what appears to be the expressed intent of the parties and without regard to the nature of any of its subject-matters or any incidents attached to them by law, it would, if valid, probably have the effect of confining the right of Goderre to a mere contingent or precarious right of possession of the several subjects with which it purports to deal including the licence the entire right of property in them remaining in St. Charles and Paquette pending fulfilment of the suspensive condition as to payment.

A study of the provisions of the "Quebec Licence

Law," however particularly article 923 has satisfied me that any property which may exist in a licence in that province is and must remain vested in the holder of the licence, upon whom it confers a personal right or privilege so long as he holds it and is the occupant of the premises and owner of the business in respect of which it issues. Having regard to this essential characteristic of a licence it is inconsistent with the letter and the spirit of the "Quebec Licence Law"

that there should be vested in one person the property in a licence held by another under -a right intended to be more than merely temporary.

The statute (art. J. 953 (4) ) specially provides for a short delay in the case of the death of, or voluntary or judicial abandonment of his property by the licensee. Unless, perhaps, pending the carrying out of 'an assignment intended to become effective practically at once, the law contemplates that the holder of a licence shall be its real owner. If, therefore, upon the only possible construction of the agreement in question, it involves Goderre holding for a term of years a licence of which during the entire period the ownership should be in St. Charles and Paquette, it would, in my opinion, be void as providing for a condition of things entirely contrary to the policy of the licence law. But, ut res magi8 valeat, I would be inclined to treat the agreement, at all events so far as the licence is concerned, as intended to provide not that the property in it while it was held by Goderre should be vested in St. Charles and Paquette, but that the latter -should have a right at any time, on default in payment by Goderre according to the terms of his contract, to retake (reprendre) the licence by employing such means for that purpose as the law provides. I see no difficulty in a construction which involves personal obligation on the part of Goderre, on his making default in payment, to execute, on the demand of St. Charles and Paquette, a formal assignment of the licence, or any other documents requisite and proper to enable the latter to secure a 'transfer of it to themselves or to their nominee. But I cannot, consistently with' the provisions of the licence law, as I appreciate them, admit its validity if the agreement be susceptible only of a construction which involves St. Charles and

Paquette having a right of property or a jus in re the licence itself while it was held by Goderre. I do not wish to be understood as questioning the assignability of a licence or the right of a transferee who can obtain the approval of the commissioners to become its holder. That question is not before us.

The agreement under consideration is not a transaction of that kind. On the contrary, if it necessarily means what the respondent contends, it provides that a licence which was and was to remain the property of Messrs. St. Charles and Paquette, should, nevertheless, be held during its original term and renewals by

Goderre. Such a contract is, in my opinion, not possible under the "Quebec Licence Law."

Whether St. Charles and Paquette never had any right of property in the licence by virtue of their agreement with Thibault, or whether under their transaction with Goderre he became the owner of it subject to a contractual obligation, on his making default in payment, to re-transfer it to them or to their nominee, the licence was not at the time of Goderre's insolvency the property of St. Charles and

Paquette and it is not now their property which a judge might, upon petition, order the curator to transfer or deliver to them under article 876 of the

Code of Civil Procedure.

That is, as I understand his petition, the remedy which the petitioner sought and the jurisdiction to which he appealed.

But if he be entitled to take advantage of what is, perhaps, the broader provision of article 875 of the Code of Civil Procedure, which his counsel invoked at bar, I am still of opinion that he cannot succeed in this proceeding. I am unable to distinguish, on principle, between the property of an insolvent debtor subject to an executory contract, which J creates a merely personal obligation to transfer it but does not confer on the obligee a jus in re, and other property of the debtor which passes under his abandonment to his curator for the benefit of his creditors. As against them (art. 1981 C.C.) I know of no ground upon which the obligee under such a personal contract' can enforce "specific performance" (l'eo~cution) (art. 1065 C.C.) of the obligation by the curator. In this case there appear to be other difficulties in the way of adjudging an execution of the obligation which it is not necessary to discuss.

I am, for these reasons, of opinion that, as to the liquor licence in question, which was the only matter seriously discussed at bar, this appeal should be allowed with costs in this court and in the Court of King's Bench, and the petition should be dismissed. J. (dissident). - L'Intim6 St. Charles 6tait, en 1906, propri6taire -avec un noman6 Paquette d'une licence pour la vente de liqueurs spiritueuses dans la cit6 de Montr6al. Le 14 d6cembre de cette mAme ann6e (1906) ils ont fait un contrat avec un nomm6 Goderre par lequel is lui promettaient de lui transporter un fonds de commerce auquel 6tait attach6 cette licence, qu'il leur aurait pay6 un certain montant comme prix de vente, lequel prix de vente 6tait stipul6 payable par versements.

La clause spbciale suivante 4tait incorpor6e dans l'acte:eh6ance, un seul versements qu'il s'est ci-dessus engage de payer,

'Messieurs St. Charles et F. Paquette auront le droit reprendre possession immedi-ite du dit fonds de commerce restaurant licenci6, avec accessoires, tel que ci-haut d6fini, comprenant la licence pour la vente des liqueurs spiritueuses attache au dit fonds commerce et les renouvellements de cette licence transportee an nom de toute personne Brodeur J. par eux, et sans tre tenus de donner aueun avis & cette fin

IMonsieur Goderre, ni d'user d'aucun proced6 judiciaire, ni donner aucune indemnit6 A Monsieur Goderre, les sommes d'argent jusque I& payees par dernier devant demeurer la propri~t6 de Messieurs

Paquette et Saint-Charles, et Monsieur Thibault, a titre dommages-intdrats liquid6s, 6tant specialement convenu que le pr6sent contrat est fait sujet la condition suspensive que tout ce que cede et transportd ici demeure et demeurera la propri6t6 de messieurs

St. Charles et Paquette jusqu' ce qu'ils aient t6 integralement payds du prix qui forme la consid6ration du pr6sent contrat. contrat n'tant qu'une promesse vente et les parties 6tant d'accord pour convenir que Iarticle du code civil la Province de n'aura pas lieu de s'appliquer ici.

En vertu de cet acte Goderre a pris possession du fonds de commerce, la exploit6 et a obtenu sa licence des autoritbs provinciales. Cette licence a 6t renonvel6e pendant un certain nombre d'ann6es.

Le 21me jour de mars, 1910, Goderre a fait cession de ses biens et Pappelant a 6th nomm6 curateur. En cette qualit6 il a pris possession du restaurant y compris la licence qu'il s'est fait transporter.

La licence a 6t6 renouvel6e pour l'ann6e fiscale 1910-11 et le paiement pour ce renouvellement a 6t6 fait par lintim6. Au mois de mai, 1910, le curateur a annonc6 en vente la licence en question.

Alors l'intim6 (taut person nellement qu'en sa qualit6 d'ex6cuteur testamentaire de Paquette) a pr6sent6 une requ~te au juge, conform6ment aux dispositions de larticle 876 C.P.C. et a demand6 A ce qu'il soit enjoint au curateur de ne pas proc6der A la vente de la licence et a ce qu'il soit tenu de signer tous les documents n6cessaires aux fins de la remettre en la possession de lintim6.

Cette requbte a 6t6 contest6e par le curateur dans l'intkr~t des cr6anciers de Goderre, pr6tendant que cette licence nappaRtient pas h lintim6 mais doit Atre J vendue pour les b6n6fice et avantage des cr6anciers en g6nbral.

La question est done de savoir si lintim6 en vertu de son contrat avec Goderre peut rbclamer la proprit6 de cette licence.

L'appelant pr6tend que St. Charles pent avoir une cr6ance contre la faillite et peut avoir droit h des dommages mais que cette r6clamation et ces dommages doivent 6tre pay6s "au marc la livre." St. Charles r6pond qu'il est propri6taire de la licence attachke an fonds de commerce, sauf n6cessairement faire approuver son transfert par les autorit6s chargbes d'administrer la loi, mais qu'il n'en a pas moins un droit de propriWt6 qui comporte avec lui tons les avantages qui en d6coulent, et notalmment celui de pouvoir revendiquer la jouissance exclusive de ce droit & Pencontre des cr6anciers.

Cette cause est de la plus grande importance vu qu'il y a un trbs grand nombre de personnes qui poss6dent dans des licences et des fonds de commerce de restaurants des int6r~ts analogues a ceux en question dans cette cause-ci.

La question de savoir si ces contrats 6taient valides est venu d6ja a diff6rentes reprises devant les tribunaux de la province et notamment dans une cause de Canadian Breweries Co. Gari6py (1). Cette d6cision de la cour d'appel a 6t suivie par Phonorable juge Tellier dans une cause non rapport6e, 1908, cour sup6rieure, Montr6al, de Gari6py v. Chartrand dans une cause de Labelle et Turgeon jug6e le 4 octobre, 1910, par 1'honorable juge Fortin.

Nous pouvons dire par cons6quent que la jurisprudence de la province a reconnu la validit6 de ces transactions et si le 14gislateur n'a pas jug6 h propos d'intervenir pour modifier la loi depuis, c'est qu'il est satisfait que cette interpr6tation est correcte et que le systeme ne doit pas Atre chang6.

La question s'est pr6sentke en France de savoir si les brevets d'imprimerie, qui 6taient alors absolument personnels et ne pouvaient 4tre exploit6s que par ceux qui en avaient regu l'autorisation du gouvernement,

6taient susceptibles de faire lobjet d'un contrat et d'engendrer des obligations; et il a 6t6 d6cid4 dans une cause rapport6e dans Dalloz, 1833-2-50, qu'un brevft d'imprimerie, qui est incessible et personnel, ayant Lt vendu & une personne avec tout le mathriel, cette personne-14k ne serait pas venue h demander la rescision du contrat parce que le gouvernement aurait refus6 de confirmer le transfert.

Il est de principe 416mentaire que les biens se divisent en biens incorporels et corporels. (Art. 374 0.0.)

Le droit du porteur d'une licence est un bien incorporel et il est susceptible d'4tre transf6r6, vendu on alibn6, et entre les parties la vente est parfaite (art.

1472 0.0.).

Dans le contrat que nous avons h examiner Goderre, insolvable, pouvait bien 6tre le porteur de la licence aux yeux de lautorit6 publique. Aux yeux des commissaires, il P'6tait virtuellement; mais dans ses relations avec St. Charles, lintimb, il est r6gi par son contrat de 1906.

Or, en vertu de ce contrat, St.

Charles 6tait le v6ritable propri6taire de la licence.

On a pr6tendu que la licence future ne pouvait pas Atre susceptible d'4tre la propri6t6 de F'intim6. L'art. C.C. d6clare cependant que les choses futures peuvent tre l'objet d'une obligation; et h lart. 1488 au titre de "La Vente" il est d6clar6 que la vente est valide si le vendeur devient eisuite propri6taire de la chose. La licence future peut done faire P'objet d'une obligation et elle pouvait faire 6galement Fobjet d'un contrat de vente.

Dans ces circonstances je considbre que le contrat fait par Goderre, d'une part, et par St. Charles et Paquette, d'autre part, est un contrat parfaitement valide; que ce contrat fait la loi des parties; et, par cons6quent, Flintim6 6tait avant la faillite propri6taire de la licence en question. II peut done en revendiquer la propri6t6 h lencontre des cr6anciers de Goderre; et le jugement de la cour d'appel, qui a reconnu sa pr6tention, doit tre confirm&.

La question s'est pr6sent6e de savoir ci cette cour avait juridiction pour entendre le prbsent appel. Pour les raisons donu6es sur ce point par mon confrbre Anglin je suis d'opinion que nous avons juridiction. Cette cause a d'ailleurs origin6 devant la cour sup& rieure et je crois que les articles 36 et 37 de "1'Acte de la Cour Supr~me," interpr6t6s lun par 'autre, nous m~nent h la conclusion que la pr6sente cause a origin6 en cour sup6rieure et est, par cons6quent, susceptible d'6tre port6e ici, vu que le montant en litige exchde $2,000.

Il y eut un temps dans Qu6bec ot on faisait une grande diff6rence entre la juridiction du juge en chambre et de la cour elle-m6me. Mais par des amendements faits an Code, il a 6t6 d6clar6 que les d6cisions rendues par le juge en chambre ont la m6me force et le m~me effet que si elles 4taient rendues par la cour elle-mme (art. 72 C.P.C.).

A tout &v6nement, en admettant que le tribunal de premi~re instance dans le cas actuel ne serait pas la cour sup(rieure, alors il ne pent pas y avoir de doute que sous la section 37 de l'acte de la cour suprCne nous aurions juridiction.

Appeal allowed with

Raymond.

Gouin, Lemieum,

Murphy, Berard & Perrault.