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Seizure by Garnishment in the Hands of Joint Registrars for
the Debt of One of Them Character of Such Office Impracticability of Such Procedure When There is no Legal Personality Separate from Those of the Individuals.
Another case decided by the Court of Appeal at the same sitting involved a nice point of procedure. In Dechène v. Angers and Fauteux et al., garnishees, plaintiff served upon the garnishees, Fauteux and Angers, a writ of seizure by garnishment to recover a debt owed to plaintiff by the latter. By their declaration in the garnishee proceedings, the garnishees declared that they occupied jointly the office of registrar; that no salary is attached to the office, their remuneration being derived from fees paid by those who present documents for registration, and that as between themselves, they divided the net proceeds of these fees equally; and that from the time of the service of the writ (April 9th) till the date of the declaration (May 17th), each had thus received $387.47. There was no contestation of this declaration, the matter being brought before the Court by appellant's motion, asking that the garnishee (not saying which), be condemned to pay plaintiff the sum of $387.47; that the emolument to which defendant is entitled be declared seizable in the proportion fixed by law (599 C.P.); that the garnishee be condemned to pay the seizable portion of his salary, and to make every month a new declaration; and that the seizure be declared valid. This motion was served upon defendant, but not upon the garnishees as such. The motion came, in the first instance, before Sir François Lemieux, C.J., who quashed the seizure, declaring that the fees and emoluments of defendant as registrar were unseizable.
The Court of Appeal dismissed the appeal from this decision, chiefly on the ground that there was nothing which could be seized by garnishee proceedings. The two joint registrars do not form a moral person, nor are they partners, nor employees the one of the other. It is conceivable that in certain circumstances one of them might become the debtor of the other by retaining the other's share of the fees paid in; but the declaration does not disclose any such situation and it was not contested. Hence, as the proceedings on their face do not show the existence of any moral person who owes anything to the defendant, nor any debt due by Fauteux, one of the garnishees, to the defendant (the other garnishee) the attachment by garnishment according to the expression of Lafontaine, C.J., “a frappé dans le vide.” There was therefore no need to go into the question of the seizability of defendant's remuneration as registrar.
Sale of Trees at so Much Each--Passing of Property-Pledge
under Bank Act-Bulk Sale-Right of Pledgee to Oppose Judgment Ordering Sale of Article Pledged.
The March number of the Revue Légale contains the report of an instructive case involving several points of practical interest: Mathieu v. Martin et al., Girouard et al., tiers-saisis (garnishees) and the Bank of Hochelaga opposant (29 R.L.n.s. 111). By three rather badly worded contracts, plaintiffs sold defendants a certain lot of trees at so much apiece, one half of the price to be paid when the trees were delivered at the mill and the balance when the wood, after having been sawn up, had been loaded on the cars at periods stipulated in the contracts. On arrival at the mill, the logs into which the trees had been cut, were taken over by defendants' employees.
Defendants not having paid, suit was entered and judgment rendered against them. Plaintiffs then had a writ of seizure by garnishment served upon Girouard, in answer to which Girouard declared that he had in his possession all the wood sold by plaintiffs to defendants. Judgment followed, ordering the garnishee to hand over to the bailiff charged with the writ of execution, that it might be sold in satisfaction of plaintiff judgment. The Bank of Hochelaga then put in an opposition to the judgment ordering the wood to be handed over to bailiff-on the ground that in March, 1920, the said wood had been assigned to it by the Martin McPeak Lumber Co., Ltd., to whom defendants (doing business under the name of Canada Lumber and Raw Material Co.) had previously sold it, as security for an advance made to the said company under the Bank Act.
The contestation of this opposition raised the following points :
1. The defendant did not own the wood and so could not sell it to Martin McPeak Lumber Co., Ltd. This ground was based on the argument that the property could not pass under the contract until the wood was sawn up and put on the cars.
Rinfret, J., disposes of this by pointing out that the property passed at least as soon as the logs were delivered at the mill, since at that time the exact quantity was fixed, after inspection by defendant's préposés, and the price ascertained. The stipu
lation as to loading in cars at stated periods must be taken as affecting not the date of delivery, but the date of payment of balance of price.
2. The sale by defendants to the Martin McPeak Lumber Co., Ltd., was null as being a bulk sale not accompanied by thu affidavit required by 1569a et seg. C.C.
The answer to this is that the failure to comply with the provisions regulating bulk sales does not result in absolute nullity, but makes the sale annullable only (Ramsay v. Turcotte, 14 Q.P.R. 123; Montreal Abbatoirs v. Picotte, 52 S. C. 373; Benoit v. Dieulefet, 57 S.C. 35+). These provisions are in effect an extension of 1032 et seq. C.C., which gives creditors the power to impeach contracts made in fraud of their rights. The learned Judge, moreover, inclines to the view that the Bulk Sales Act (as Arts. 1569a et seq., may be called), does not apply to a sale where the consideration or part thereof is the obligation undertaken by the purchaser to assume all debts of the vendorparticularly where, as in the present case, the sale was that of a partnership business to a limited company formed for the express purpose of taking it over. The position of the creditors cannot be prejudiced by such a transaction, since its only effect as regards them is to give them an additional debtor.
3. The plaintiff alternatively attacks the validity of the assignment to the bank on three grounds :
(a) The wood assigned was declared “ free of all mortgages,
privileges or charges whatsoever.” As to this the Judge points out that even if the vendor's privilege had still existed (which was not the case), such inaccuracy in what was a warranty to the bank could not be a ground of nullity as against the bank when raised by a third
party. (b) The advance to the lumber company was not contempor
aneous with the promise to assign but subsequent thereto. The Judge held on this point that under the proper interpretation of section 90 of the Bank Act the promise may be made either at the same time as or prior to the advance, quoting Clarkson v. Dominion Bank (46
D.L.R. 281). (c) The wood was not sufficiently identified and described
in the assignment, the pretention being that the description should be as detailed and precise as in a case of sale of real property. As the Judge points out, such a detailed description is frequently impossible in the cir
cumstances which section 90 is intended to provide for, and is not required (Imperial Paper Mills, Ltd. v. Quebec Bank, 13 D.L.R. 702 and 110 T.L.R. 91).
4. Finally, there is the pretention that even if the foregoing grounds fail and the assignment is valid, the bank is not entitled to prevent the sale, but only to be paid by privilege out of the proceeds thereof.
This ground also fails because the bank is not merely a privileged creditor in the ordinary sense of the expression. It is clear from the sections of the Bank Act (86-90), that the bank holding an assignment is a pledgee with special rights, and this is recognized by our own Civil Code (Art. 1971); and as a pledgee the bank has a right to oppose the execution (646 C.P.).
0. S. T.
SUPREME COURT OF ALBERTA.
Jurisdiction for Divorce-Effect of Decree of Judicial Separa
tion on Domicil of Wife.
In Cook v. Cook, (1923) 1 W.W.R. 929, a wife obtained a decree of judicial separation from her husband in the Alberta Supreme Court. The husband's domicil of origin was Ontario, and it was not proved that he had ever acquired a domicil of choice. The wife had been resident in Alberta for over four years, and service of process was made on the husband in Alberta. Having thus obtained a decree of judicial separation, the wife now brings an action for divorce. Held,—action dismissed for want of jurisdiction.
Several “hard” cases, similar to the above, have been before the Alberta Court during the last few years. Thus, in Coleman v. Coleman, (1919) 3 W.W.R. 490, the wife had been deserted in Alberta, and while the husband had apparently abandoned his Alberta domicil of choice, there was no evidence that he had acquired a domicil anywhere else. Under these circumstances, the Court fell back on the domicil of origin, which in this case, fortunately for the wife, happened to be Alberta, and granted the divorce. In McCormack v. McCormack, (1920) 2 W.W.R. 714, however, , where the facts were somewhat similar, except that the husband's domicil of origin was Scotland, the court declined to take jurisdiction and practically referred the wife to Scotland, if she desired the divorce to which she was obviously entitled on the substantive case she presented. Swift v. Swift, (1920), 3 W.W.R. 874, was, if anything, a stronger case. The husband's domicil of origin was foreign, the parties had been married and had resided for two years in Alberta, when the husband deserted the wife. She continued to life in Alberta for six years, while he lived in Winnipeg, at the end of which time she brought her action. As no proof was given that he had ever acquired, or that he then had a domicil in Alberta, the Court was forced, with very great regret, to refuse to take jurisdiction, and to grant the divorce to which she was “in all conscience entitled.”
The hardship in these cases is obvious. As Mr. Justice Stuart said in the McCormack case
“Here we have a woman married to a Canadian soldier in England, who, upon demobilization, precedes her to Alberta, we have her detained by the necessities of transport in England, then following her husband across an ocean and a continent expecting to live with him as his wife, coming into a community where she was an utter stranger to find him living in adultery with another woman, and forced by her lonely condition to live with them ... and then deserted by him. We have him going back across a continent to eastern Canada in company with the other woman and living with her there. It is certainly cold comfort to her to be told that she should go to Scotland or England for relief and adduce at enormous expense before the courts there the evidence of her husband's wrongdoing. To tell her this is comparable only to the famous lecture by Mr. Justice Maule wherein before 1857 he informed one accused before him of bigamy what course he (or was it she?) should have taken in order to be relieved of the first marriage tie.”
The hardship arises from the orthodox rule that only the court of the husband's domicil has jurisdiction to grant a divorce, and it raises the question asked by Mr. Justice Stuart in this case:
“Why should not this court also be privileged to develop the law according to the principles of natural justice and to lay down a rule to fit the justice of the case as well as the courts of England, where the facts present very special circumstances of injury and wrong?”