BC Sessional Papers

IN THE SUPREME COURT OF BRITISH COLUMBIA. British Columbia. Legislative Assembly 1894

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 57 Vict.
Davies v. McMillan.
1221
IN THE SUPREME COURT OF BRITISH COLUMBIA,
(On Appeal to the Divisional Court.)
Between
THE BANK OF BRITISH COLUMBIA,
AND
ATWELL KING & CO.,
And Between
JOSHUA DAVIES,
AND
THE  BANK OF BRITISH COLUMBIA,
Plaintiffs,
Defendants;
Claimant,
Respondent.
Upon hearing Mr. J. P. Walls, of Counsel for the Sheriff of Vancouver Island, and upon
reading the affidavit of the said Sheriff, filed this day, and the affidavit of John Mount Langley,
filed this day, and upon hearing Mr. Harry Dallas Helmcken, of Counsel for the Plaintiff, and
Mr. Charles Wilson, of Counsel for the Claimant, it is ordered that upon payment of the sum
of $650 into Court by the said Claimant, or upon his giving security to the satisfaction of one
of the Judges of the Supreme Court for the payment of the same amount by the Claimant, to
abide by any order to be made herein, the Sheriff of Vancouver Island do withdraw from the
possession of the goods seized herein.
And it is further ordered that in the meantime, and until such payment made or security
given, the said Sheriff continue in possession of the goods and the Claimant pay possession
money from the time he so contiuues unless the Claimant desires the goods to be sold by the
Sheriff, in which case the Sheriff is to sell the goods and to pay the proceeds of the sale, after
deducting the expenses thereof and the possession money, from this date into Court in the
cause to abide further order herein.
And it is further ordered that the parties proceed to a trial of an issue in the Supreme
Court of British Columbia, in which the Claimant shall be Plaintiff, and the Execution
Creditor shall be Defendant, and that the question to be tried shall be whether at the time of
the seizure by the Sheriff, the property seized was the property of the Claimant as against the
Execution Creditor.
And it is further ordered that this issue be prepared and delivered by the Plaintiff therein,
within ten days from this date, aud returned by the Defendant therein within three days after
delivery, and be tried at Victoria.
And it is further ordered that all proceedings in the suit of Joshua Davies against the
said Sheriff be stayed in the meantime, aud until further order.
And it is ordered that the question of costs, and all further questions, be reserved until
after the trial of the said issue, and that no action shall be brought against the Sheriff for the
seizure of the said goods.
Aud it is further ordered that nothing in this Order is to interfere with the authorization
of the said Atwell King to carry on the retail business on those premises in the usual manner
as hitherto.
Dated the 14th day of January, 1888.
(Signed)        MATT.  B, BEGBIE, C. .1. 1222 Davies v. McMillan. 1694
IN THE SUPREME COURT OF BRITISH COLUMBIA.
Between
JOSHUA DAVIES, Plaintiff,
AND
JAMES ELIPHALET McMILLAN, Defendant.
Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland,
Queen, Defender of the Faith.
To James Elipiialet McMillan.
We command you that within eight days after the service of this writ on you, inclusive of
the day of such service, you cause an appearance to be entered for you in an action at the suit
of Joshua Davies.
And take notice that in default of your so doing the plaintiff" may proceed therein and
judgment may be given in your absence.
Witness, Sir Matthew Baillie Begbie, Knight, Chief Justice, the 11th day of January,
1888. [l.s.]
The defendant may appear hereto by entering an appearance, either personally or by
solicitor, at the office of the Registrar of the Court at Victoria.
This Writ was issued by Charles Wilson, Broughton Street, Victoria, Solicitor for the
said plaintiff.
Indorsement.
The plaintiff's claim is for wrongfully seizing the plaintiff's goods; and the plaintiff
claims $8,000.
Affidavit.
1. James Eliphalet McMillan, of Victoria, British Columbia, Sheriff of Vancouver
Island, make oath and say as follows:—
1 Under and by virtue of a writ of fi. fa., which appeared to me to have been regularly
issued out of this Honourable Court in this action, directed to me, commanding me that I
should levy of the goods and chattels of the above-named defendant $530 and $16.50 for taxed
costs, and also interest on the said sum at the rate of 6 per centum per annum, from the th
day of January, 1888, which the above-named plaintiff' had recovered against the said
defendants in this Honourable Court, and indorsed to levy the whole, besides $3.50 for costs of
said writ, and Sheriff's poundage, officers' fees, and all other legal incidental expenses. I did
on the day of January, instant, take possession of certain goods and chattels in the store
of the above-named defendant, situate on Government Street, Victoria, and the said goods and
chattels still remain in my possession as Sheriff.
2. On the 11th day of January, instant, I was served with a writ of summons issued out
of this Honourable Court, a copy whereof is hereunto annexed and marked " A."
3. This application for an interpleader order is made to this Honourable Court solely on
my own behalf as Sheriff and for my own indemnity only, and I do not collude in any manner
with the said Joshua Davies, or the said plaintiff or defendant.
Sworn at Victoria this 14th clay of January,]
1888, before me. [j. E. McMILLAN.
Geo. Jay, Jr.,
Commissioner to administer Oaths in the Supreme Court of B. C. 57 Vict. Davies v. McMillan. 1223
IN THE SUPREME COURT OF BRITISH COLUMBIA.
Appeal from the County  Court of Victoria, holden at   Victoria.
Between
TURNER, BEETON & CO., Plaintiffs,
AND
AT WELL KING & CO., Defendants,
And Between
JOSHUA DAVIES, Claimant,
AND
TURNER, BEETON & CO., Respondents.
The 21st day of March, 1888.
Upon motion by way of appeal from the County Court of Victoria, holden at Victoria,
from the judgment of the Honourable Sir Matthew Baillie Begbie, Knight, Chief Justice,
sitting and acting as County Court Judge, and dated 16th day of February, 1888, whereby it
was adjudged and declared that, touching the claim of the said Joshua Davies to certain goods
taken in execution in this action, he the said Joshua Davies had no right of property in the said
goods taken in execution in this action, as against the said plaintiffs, Turner, Beeton & Co.; and it
was further adjudged that the said Joshua Davies do pay the costs of the said Turner, Beeton
& Co., of procuring and trying this interpleader issue, to be taxed by the Registrar, together
with the taxed costs of the Sheriff, to be retained by him out of the amount levied, but without
prejudice to the right of the said Turner, Beeton & Co. against the said Joshua Davies
for the amount so retained. And upon the case being called on for hearing on the 13th day
of March, 1888, and upon hearing Mr. Theodore Davie, Q.C., and Mr. 0. Wilson, of counsel
forthe said Joshua Davies, and Mr. S. Perry Mills, of counsel for Turner, Beeton & Co., and
what was alleged by counsel, this Court did order that the appeal should be adjourned for
argument until Tuesday, the 14th March, 1888, at 11 o'clock, and this matter coming on for
further argument on the said 14th day of March, 1888, in the presence of counsel aforesaid,
this Court did order that this matter should stand for judgment, and this matter standing for
judgment this day in the presence of counsel aforesaid, this Court doth order and declare that
the judgment of the said Honourable Sir Matthew Baillie Begbie, Knight, sitting and acting
as County Court Judge as aforesaid, be affirmed, and the appeal herein be and the same is
hereby dismissed out of this Honourable Court, with costs of and incidental to this appeal to
be taxed and paid by the said Joshua Davies to the said Turner, Beeton & Co., or their
solicitor, forthwith after the taxation thereof. And this Court doth order and adjudge the
same accordingly.
By the Court,
JAMES C. PREVOST. 1224
Davies v. McMillan.
1894
IN THE SUPREME COURT OF BRITISH COLUMBIA.
(On Appeal to the Divisional Court.)
Between
And Between
THE BANK OF BRITISH COLUMBIA,
AND
ATWELL KING & CO.,
JOSHUA DAVIES,
Plaintiff's,
Defendants,
Claimant,
THE BANK OF BRITISH COLUMBIA,
Respondents.
Friday, the 23rd day of March, A.D. 1888.
Upon hearing Mr. Helmcken, on behalf of the Bank of British Columbia, in support of an
application to show cause why the order made herein and dated the 14th day of January,
A.D. 1888, should not be rescinded, and the claimant be barred from prosecuting his claim, and
that ho do pay the costs of and occasioned by the said order, or for such other and further
relief as the nature of the case may require, upon hearing Mr. Wilson, on behalf of the above-
named claimant, and Mr. Walls, for the Sheriff of Vancouver Island, it is ordered that the said
application be dismissed with costs, to be taxed and paid by the Bank of British Columbia to
the claimant and the said Sheriff, and it is further ordered that in lieu of taxation the Sheriff's
costs are hereby fixed at the sum of $5.
(Signed)        MATT. B. BEGBIE, C. J.
IN THE SUPREME COURT OF BRITISH COLUMIUA.
 o	
(On Appeal to the Divisional Court.)
Between
And Between
THE BANK OF BRITISH COLUMBIA,
AND
ATWELL KING & CO.,
JOSHUA DAVIES,
AND
THE BANK OF BRITISH COLUMBIA,
Plaintiffs.
Defendants,
Claimant,
Respondents.
Take notice that the Bank of British Columbia appeals from the Order of the Honourable
the Chief Justice made herein and dated the 23rd day of March instant, dismissing their
application to rescind the order made herein and dated the 14th day of January, A.D. 1888,
and to bar the claimant.
And further take notice that the Divisional Court will be moved on Wednesday, the 28th
instant, at the hour of 12 o'clock noon, or as soon thereafter as counsel can be heard, or
whenever the said Court shall sit, by Mr. Drake, Q.C., of counsel for the said Bank, for an order
on their behalf that the said order of the 23rd day of March,  instant,   may  be  set aside,  and 57 Vict. Davies v. McMillan. 1225
that the said order of the 14th day of January, A. D. 1888, may be rescinded, and that the
claimant barred, and that he do pay the costs of and occasioned by the said orders and of
this appeal to be taxed, or for such further and other relief as the nature of the case may
require.
Dated this 26th day of March, A D. 1888.
Yours, &c,
ROBERT EDWIN JACKSON,
Solicitor for Bank of British Columbia.
To Chas. Wilson,
Solicitor for Claimant.
And to J. P. Walls, Esq.,
Solicitor for Sheriff of Vancouver Island.
EXHIBIT 1.
IN THE DIVISIONAL COURT.
Present:—The Honourable Mr. Justice Crease, and the Honourable Mr. Justice Walkem.
Between
THE BANK OF BRITISH COLUMBIA, Plaintiffs,
AND
ATWELL KING & CO., Defendants,
And between
JOSHUA DAVIES, (Claimant) Plaintiff,
and
THE BANK OF BRITISH COLUMBIA, Respondents.
Monday, the 16th day of April, A. D. 1888.
Upon motion by way of appeal this day mtde into this Court by Mr. Drake, Q. O, of
counsel for the above named, the Bank of British Columbia, from the order of the Honourable
the Chief Justice, dated the 23rd day of March, A. D. 1888, dismissing the application of the
said Bank to rescind the order made herein by the said Chief Justice on the 14th day of
January, A. D. 1888, ordering, inter alia, the Claimant and the said Bank to proceed to the
trial of an interpleader issue, and upon hearing Mr. Wilson, of counsel for the above named
Claimant, and upon reading the orders of the 14th day of January, A. D. 1888, and the said
order of the 23rd day of March, A. D. 1888, and the judgment of the Honourable the Chief
Justice pronounced in an interpleader issue wherein the above named Claimant was plaintiff
and Turner, Beeton & Co. were defendants, on the 11th day of February, A. D. 1888. This
Court doth order :—
1. That the said order of the 14th day of January, A. D. 1888, and of the 23rd dav of
March, A. D. 1888, be rescinded.
2. This Court doth further order that the said Claimant be, and he is hereby forever
barred from prosecuting his claim mentioned and referred to in the affidavit of James Eliphalet
McMillan used in support of the application for the order of the 14th day of January, A. D.
1888, and sworn the same day against the Bank of British Columbia.
3. This Court doth further order that the claimant bring no action against the said
James Eliphalet McMillan, Sheriff for Vancouver Island, for anything done by him under and
by virtue of the writ of fieri facias issued in this action, and dated the 6th day of January,
A.D. 1888. Nor for any moneys paid by the claimant to the said order of the 14th day of
January, A.D. 1888.
4. This Court doth further order that each party bear his own costs of and occasioned by
the said, orders and of and consequent upon this appeal.
And this Court doth order and adjudge the same accordingly.
By the Divisional Court,
James C. Prevost, R. 1226 Davies v. McMillan. i894
IN THE SUPREME COURT OF BRITISH COLUMBIA.
IN THE MATTER OF JOSHUA DAVIES, PETITIONER, AND TURNER, BEETON
& COMPANY., AND THE BANK OF BRITISH COLUMBIA, JUDGMENT
CREDITORS OF ATWELL KING.
JUDGMENT.
Befobe Hon. J. H. Gray, J. November 20th, 1888.
This is a most unusual proceeding. It is an application for leave to prosecute a bill of
review of suits, one in the County Court and one in the Supreme Court, adjudicated upon in
different stages by four Judges of the Supreme Court sitting in original and appellate jurisdiction. It involves novel points of law, and, as affecting not only the particular litigants but
the business public in general, demands serious consideration.
The petitioner says he has suffered a great wrong. That the proceedings in the Courts
have done him great injustice—so much so as to necessitate recourse to the unusual remedy
he now asks the Court to grant.
The first question then is : Has any such wrong been done to the petitioner in the
proceedings and adjudication above referred to as to necessitate the application of an exceptional remedy 1
Secondly :  Is the exceptional remedy now asked for the proper one ?
Petitioner asks that he may point out the errors in law which he alleges are to be found
on the face of these proceedings and adjudications, and, having obtained a hearing thereon,
take such steps by appeal or otherwise as will remedy the injustice he has suffered. The facts
of the case as set forth in the petition, briefly stated, so far as to bring out the law points
only, are :—
1. That on 2nd January, 1888, the petitioner bought from one At well King, a trader in
Victoria—his stock-in-trade for $8,000, and on the same day took a bill of sale and possession
thereof—and retained in his service as shopman the said Atwell King, at a fixed salary.
2. That the sum of $8,000 was on the same day paid and satisfied to one E. M. Johnson,
the said Atwell King's agent, in his presence and by his direction.
3. The said assignment or bill of sale was registered on the 4th January.
4. That on 5th January, 1888, Turner, Beeton & Co. recovered a judgment against said
Atwell King in the County Court, under a short service summons, for $337.20 and costs
(Sec. 53, Co. Ct. Jurisdiction Act, 1888.) By an amending Act passed in 1887, No. 35, the
judgment so recovered is to be taken to be brought for and to enure to the benefit of all the
creditors of the party summoned.
5. On this judgment so obtained Turner, Baeton & Co. on the same day issued an execution, and the Sheriff seized the goods which had been sold to the petitioner, and were then in
his possession, of which the petitioner gave notice to the Sheriff and claimed the goods.
6. On the following day, the 6th of January, the petitioner paid to the Sheriff $395, the
amount of said judgment and costs, in accordance with the provisions of the interpleader
sections of the Co. Ct. Act, 1885 (sections 29 and 30); and on the 18th January an interpleader
summons was issued in the suit of Turner, Beeton & Co. against King to try the right of
property in the goods so seized.
7. On the 2nd February the trial came on before the Chief Justice, acting as a County
Court Judge, and a jury, the contention being: That the assignment or bill of sale to the
petitioner was void under 43 Vic. (1880), ch. 10, entitled "An Act respecting the fraudulent
preference of creditors by persons in insolvent circumstances." 57 Vict. Davies v. McMillan. 1227
On the trial answers were given by the jury to some questions submitted to them by the
learned Judge, and on the 16th February the learned Judge gave judgment against the
petitioner, and declared the bill of sale invalid.
8. From this judgment the petitioner appealed under the 173rd sec. of the County Court
Act to the Court of Appeal created by that Statute for hearing appeals from the County
Court, the decision of such Appellate Court to be final. That Court dismissed the petitioner's
appeal and confirmed the judgment of the Court below.
So far, therefore, all matters between Turner, Beeton & Co. and the petitioner arising
out of the sale by Atwell King to the petitioner of the goods seized were closed, res adjudicata.
The material advantages were with Turner, Beeton & Co., and whatever might be their
position with reference to the other creditors of Atwell King under the Act of 1887, No. 35,
so far as the petitioner was concerned the final action of the Appellate Court (right or wrong),
and the payment of the execution, put an end to his contest with them. So strong was my
view as to this point that, as the presiding Judge, I offered at once to dismiss the petition as
against Turner, Beeton & Co., with costs, but their counsel declined to accept the offer for fear
of some future contingent possibility as to costs in some possible future suits or proceedings
that might or might not in some unforseen way arise, any order in reference to which I
declined to make, noither having the power to make such an order, or the persons or facts
before me to justify such an interference with the future. It is enough to settle present
disputes.    The first branch of the case is, therefore, disposed of.
The second is of a far different character, involving different considerations and different
legal points.
1st. On the 6th January, 1888, the Bank of British Columbia recovered judgment in the
Supreme Court of British Columbia against the said Atwell King for $530 debt and $16.50
costs, issued execution thereon, and the Sheriff again seized thereunder the goods purchased by
the petitioner as aforesaid ; on the 11th petitioner gave formal notice to the Sheriff and put
in his claim; on the 13th he commenced an action against the Sheriff for wrongfully seizing
his goods, and on the same day the Sheriff took out an interpleader summons in the Supreme
Court, and on the 14th January the Chief Justice made an order directing the petitioner and
the Bank of British Columbia to proceed to the trial of an interpleader issue to decide the
property in the said goods. Issue was joined. On the 24th February petitioner complied
with the Chief Justice's order, gave the security, and paid the Sheriff the possession money.
2nd. On the 28th February a summons was taken out before the Chief Justice to fix the
day of trial of the interpleader issue between the petitioner and the Bank, the hearing of
which application by consent was transferred to Mr. Justice Walkem, who directed the
application to stand until the Bank of British Columbia could apply to a Judge in Chambers
to rescind the order of the 14th January directing the petitioner and the Bank of B. C. to
proceed to interpleader issue to decide the property of the said goods.
3rd. On the 23rd March, 1888, accordingly the Bank applied to the Chief Justice to
rescind his order of the 14th January as last aforesaid—on the ground that the judgment in
the interpleader issue between Turner, Beeton & Co. and the petitioner had decided that the
petitioner had no right of property in the goods as against the creditors of the said Atwell
King. The Chief Justice refused to rescind his order—on the ground that the judgment in
Turner, Beeton & Co.'s case was res inter alios acta—and if allowed to operate as an estoppel
against petitioner must also so operate against the Bank, that such a construction of the Act
would open the door to great frauds, and confer unlimited jurisdiction on the County Court.
4. From this decision of the Chief Justice the Bank appealed to the Divisional Court,
and on the 16th April, 1888, the said Court delivered the following judgment:—
"In the Supreme Court of British Columbia.
'In the Divisional Court. Present: The Hon. Mr. Justice Crease and the Hon. Mr. Justice
Walkem. Between the Bank of British Columbia, plaintiffs, and Atwell King & Co.,
defendants; and between Joshua Davies (claimant), plaintiff, and the Bank of British
Columbia, respondents.
"Monday, the 16th day of April, A.D. 1888.
" Upon motion by way of appeal this day made unto this Court by Mr. Drake, Q. C, of
counsel for the above named the Bank of British Columbia, from the order of the Honourable
the Chief Justice, dated the 23rd day of March, A.D. 1888, dismissing the application of the
said Bank to rescind the order made herein by the said Chief Justice on the 14th day of 1228 Davies v. McMillan. 1894
January, A.D. 1888, ordering inter alia the claimant and the said Bank to proceed to the trial
of an interpleader issue, and upon hearing Mr. Wilson, of counsel for the above-named claimant,
and upon reading the orders of the 14th day of January, A.D. 1888, and the said orders of the
23rd day of March, A.D. 1888, and the judgment of the Honourable the Chief Justice
pronounced in an interpleader issue wherein the above-named claimant was plaintiff, and
Turner, Beeton & Co. were defendants, on the 16th day of February, A.D. 1888, this Court
doth order :
"1. That the said orders of the 14th day of January, A.D. 1888, and the 23rd day of
March, A.D., 1888, be rescinded.
" 2. This Court doth further order that the said claimant be and he is hereby forever
barred from prosecuting his claim mentioned and referred to in the affidavit of James Eliphalet
McMillan, used in support of the application for the order of the 14th day of January, A.D.
1888, and sworn the same day against the Bank of British Columbia.
" 3. This Court doth further order that the claimant bring no action against the said James
Eliphalet McMillan, Sheriff for Vancouver Island, for anything done by him under and by
virtue of the writ of fierifacias issued in this action and dated the 6 th day of February, A.D.
1888, nor for any moneys paid by the claimant to the said Sheriff under and by virtue of the
said order of the 14th clay of January, A.D. 1888.
" 4. This Court doth further order that each party bear his own costs of and occasioned
by the said orders, and of and consequent upon this appeal.
"And this Court doth order and adjudge the same accordingly by the Divisional Court.
[l.s ] "James C. Prevost, K."
Stamps, $1.00.
5. It is to error in law appearing on the face of this judgment and order that the present
application is to be confined.    It will be noticed—
1st. That these proceedings before the Divisional Court are in the suits of the Bank of
British Columbia against Atwell King—and the petitioner as claimant against the Bank of
British Columbia as defendant.
2nd. That the judgment rescinds the orders of the Chief Justice of the 14th January for
the interpleader issue in the Bank's suit as to the claim of property by the petitioner, and his
further order of the 23rd of March refusing to rescind said order of the 14th January.
3rd. It orders that the said petitioner be forever barred from prosecuting against the
Bank of British Columbia' his claim to the goods referred to in the application of the 14th
January.
4th. It further orders that the petitioner shall bring no action against the Sheriff for
anything done by him under the execution issued in the Bank's suit on the 6th of January,
nor for any moneys paid by the petitioner as claimant to the Sheriff under the Chief Justice's
order of the 14th January.
It will be observed from the recital that this order of the Divisional Court is based upon
reading the Chief Justice's order of 23rd March, dismissing the application to rescind his order
of 14th January, on reading his said order of the 14th Janutry, and the judgment of the
Chief Justice delivered in the County Court in the interpleader suit between the petitioner as
claimant, and Turner, Beeton & Co. as defendants.
6. The errors in law in this order of the Divisional Court are alleged to be :—
1st. That the orders of the 14th January and the 23rd March made by the Chief Justice
were good in law, and the rescinding those orders by the Divisional Court was not warranted
by the judgment in Turner, Beeton & Co.'s case referred to in the Divisional Court's orders.
2nd. That the order restraining the plaintiff forever from prosecuting his claim against
the Bank was on a matter in no way before the Divisional Court on appeal.
3rd. That the order that the petitioner should bring no action against the Sheriff for
anything done by the Sheriff under the execution issued by the Bank, or for moneys paid to
him by the petitioner under the Chief Justice's order of the 14th January, was on a matter in
no way before that Court.
4th. That the said order was inconsistent with the express provisions of the Interpleader
Act, and an exercise of original and not of appellate jurisdiction, and was not warranted by
Rule 405 of the Supreme Court, being neither such an order as ought to have been made by
the Chief Justice when directing the interpleader issue, or such as the case required. 57 Vict. Davies v. McMillan. 1229
5th. That it directly interfered with an existing suit, namely : That of the petitioner
against the Sheriff, which was in no way whatever before the Divisional Court, in which no
defence had been put in, no issue joined, and no application to the Divisional Court made.
The judgment in the case of the petitioner against Turner, Beeton & Co. in the interpleader suit, the authority on which the Divisional Court relies, could not possibly be
binding on others than the parties to the suit. It was the judgment of an inferior Court of
limited jurisdiction, not of concurrent jurisdiction, beyond $1,000. It was not a judgment in
rem. It barely operated on one-twenty-fourth part of the subject matter in dispute—$337 out
of $8,000. The Act under which that judgment was obtained declared that the amount
recovered was to be aud enure for all the creditors of the party summoned. What was to
become of the difference between the $337 and the $8,000? It cannot be said—because the
petitioner failed in that suit—which from certain circumstances became final as between
himself and Turner, Beeton & Co., that, therefore, he could not defend against any other
person who might try to get the balance of the $8,000 or the property for which the $8,000
was paid by the petitioner. If the petitioner was estopped by the judgment in that case, the
Bank and other creditors of King, the parties on the other side for whose benefit by statute
the Turner, Beeton judgment was to enure, must equally be estopped, and the consequence
wauld be that a statute intended to prevent fraudulent transfers of property by insolvent
debtors could be made the greatest instrument of fraud.
The learned Chief Justice considered that, as between the Bank and Davies, what had
taken place between Turner, Beeton and Davies was res inter alios acta, and not binding on
the Bank or Davies as between them.
A distinction as to res inter alios acta is well recognized as to where a judgment is offered
in evidence to establish the mere fact, that a verdict was given or a judgment pronounced
between the same parties, and where it is offered between other parties, as a means of proving
some fact, which is found by the verdict, or upon the supposed existence of which the judgment
can alone be supported. In the latter case the evidence will not in general be admissable to
conclude third parties. In the present case the judgment is used by the Divisional Court not
for the purpose of proving a judgment, but for the purpose of proving the fact that the transfer
of the property was a fraud. It is not clear upon what principle it got before the Divisional
Court. Their sitting was not on appeal from that judgment; it was not a trial of the merits
between the Bank and Davies, but simply to consider whether an order made by the Chief
Justice that an enquiry should be held whether certain property the Bank had seized under an
execution against Atwell King could be claimed by Davies—a statutory right and authority,
1st, for the claimant; 2nd, for the Judge who orders the enquiry—and as it so happened, the
Judge who in this case know more than any other person whether, as between the Bank and
Davies, enquiry into such claim should take place, and who had ordered it. Moreover, it is to
be observed that at that time it was impossible to say, as between the Bank and Davies, what
facts or points might be raised on the pleadings in that case to test the validity of the Turner,
Beeton judgment, or its effect upon other parties, or upon the balance of the money, exceeding
$7,500.'
In testing the Bank's right to seize that property under execution, the point might have
been raised that the Bank had no right because, as one of the creditors of King, it was
estopped by the judgment of Turner, Beeton & Co., who, by statute, were made trustees for
King's creditors, and their judgment had been paid—for if Davies was estopped so was the
Bank and the other creditors, the cestui que trusts, and therefore the Bank could not under
their execution seize the goods a second time—a proposition most gratifying to Mr. Atwell
King, who thus would pay his $8,000 debts by $337, or perhaps what would have suited
King as well, Davies' property, for which he had paid, would, under this Divisional Court
decision, be liable to seizure under executions from any number of King's creditors in
suits against King himself, in not one of which could Davies intervene, while King himself
or his appointees held and appropriated the consideration money which Davies had
paid. Well did the Chief Justice say such a construction would open the door to fraud. It
it is not necessary here to say whether such points could be well taken or not. Evidently
these and other considerations induced the Chief Justice to consider that the rule res inter
alios acta applied, and to refuse to rescind his order, allowing the parties to establish their
rights in the ordinary way. Moreover, as justly observed by the Chief Justice, the statutory
jurisdiction of the County Court, which is limited to $1,000, might thus indirectly be increased
by many thousands, as in this very case it is contended that it covers the right to $8,000, less 1230 Davies v. McMillan. 1894
$337. But how can the judgment of an inferior Court of limited jurisdiction stay the action
of the Supreme Court in a suit in the Supreme Court between other parties than those in the
County Court on a question exceeding the jurisdiction of the latter by $8,000 to $1,000. A
Court cannot do indirectly what it cannot do directly. As authority, it can have no weight
whatever, further than respect for the reasons on which that judgment was founded, may
influence the decision of the Supreme Court. Whether the judgment in the Turner, Beeton
case was founded on such good reasons as to justify a similar conclusion in the Supreme Court
in a similar case may be examined hereafter, but so far as the present point goes it appears,
with all deference to the Divisional Court, that the reasons of the Chief Justice for refusing
to rescind his order of 14th January were sound, and in that respect the error charged as
appearing in the rescinding order of the Divisional Court must be considered well taken.
When the other two parts of the Divisional Court order are examined it is difficult to
reconcile some conflicting points. The order appealed from was a refusal of the Chief Justice
to rescind his order in the suit of the Bank of B. C. directing the trial of an interpleader issue
to decide the right of property in the goods.
His order directing that issue was made on the application of the Sheriff, and contained
the preliminary provision for the Sheriff's security and protection in carrying out that order
required by and in accordance with the practice of the Courts in such cases. If the order
was carried out the Sheriff had his protection under the order and the security paid in, if it
was not carried out he incurred no risk under the interpleader issue, and had his full authority
and protection under the execution to hold the goods and sell. Except by the interpleader
issue there was nothing exceptional in the case. Why the Divisional Court should protect
the Sheriff any more than in hundreds of ordinary sales under executions does not appear;
but the extraordinary part is, that the Chief Justice's order did protect him for any exceptional
risk he ran ; that order is rescinded by the Divisional Court, the risk is not run, but the
protection thrown around the Sheriff by the Divisional Court is more than he could legally
have demanded if he had incurred the risk many times over. Not only so, but it goes further.
It forever bars the petitioner from prosecuting his claim against the Bank, and further orders
that he shall bring no action against the Sheriff for anything done under the execution,
nor for any moneys paid by the petitioner to the Sheriff under the Chief Justice's order of
the 14th January—thus practically deciding the merits and results of the main action brought
by the petitioner against the Sheriff which had never been heard, and in which the Sheriff
had not even put in a defence—and where the application before the Divisional Court was
simply on an interlocutory proceeding in another suit. Thus in an action in the Supreme
Court in which the petitioner alleged that the Sheriff had seized nearly $8,000 worth of
petitioner's property under an execution from the Bank of British Columbia, the Divisional
Court orders him to stop all proceedings in his suit against the Sheriff, because in the County
Court somebody else had got the better of him to the extent of $337 in a matter alleged to be
the same, or arising out of the same transaction.
By the 2nd section of the Act constituting the Divisional Court (chap. 5, 1855), the
Divisional Court has all the powers and authorities before held and exercised by the Full
Court in interlocutory matters, and its judgment shall be deemed a judgment of the Full Court,
and shall be executed and carried out as such. A diligent search into the proceedings of the
Full Court has disclosed no instance in which that Court ever decided upon the merits of a
case unheard, or before a defence was put in, and made a final and absolute order barring
further proceedings, because in another and inferior Court, in another case between other
parties, a judgment had been rendered which, as between those parties in that inferior Court,
had been made final.
But, as the Divisional Court has on the face of its decision incorporated the Turner-
Beeton judgment with that order, it becomes necessary to examine it. It was, as must be
well understood, a judgment on an interpleader issue in the County Court, in which the
petitioner Davies was plaintiff and Turner, Beeton & Co. defendants. The latter had, under
a judgment against Atwell King, seized goods which petitioner claimed as sold to him by
King; a jury was summoned and sworn to try the issue—they brought in no verdict—they
answered certain questions submitted by the Chief Justice, who, acting as a County Court
Judge, was trying the case.
The learned Judge considered these answers, and himself decided in favour of Turner,
Beeton cfc Co., that the claimant (the petitioner) had no property in the goods as against the
creditors of the said Atwell King. 57 "Vict:. Davies v. McMillan. 1231
It is submitted :—
1st. That according to the law and practice in British Columbia, a judgment so arrived
at is not valid : that where on the application of either plaintiff or defendant (sec. 79, County
Court Act), a jury has been summoned and sworn to try the issue, the duty of the jury is not
completed, or the rule ordering a jury filled, until a verdict has been returned or the jury
discharged according to law ; that the conclusions of a Judge as to the meaning and effect of
certain answers to questions put by the Judge, is not a verdict or equivalent to a verdict, and
that on the point raised in the present suit between the Bank and the petitioner, as to the
right of property in the goods seized by the Bank under execution and claimed by the
petitioner, there has been no valid adjudication whatever.
2nd. That the answers to the questions put by the Judge to the jury are inconsistent
with each other, without the rider attached, and cannot possibly sustain his conclusion, and,
with the rider attached, directly negative it.
3rd. That the confirmation of that judgment by the Appellate Court, however conclusive
it may be between the parties to that suit, has no binding power or authority in any other suit
between other parties.
The first point has been twice decided in the Supreme Court of British Columbia on
argument before the Full Court in banc, on appeals taken in two cases, namely, Fan v. Fan,
J uly 24th, 1885, and in Wraight v. Young, 20th August, 1885, in which cases the principle was
distinctly laid down that in cases where juries are summoned and sworn the parties are entitled
to have a verdict, and the Judge cannot assume that power to himself (vide Hunt v. Chambers,
20 Chancery Division, 370).
In the Turner, Beeton case, in which the petitioner was the contending party, he was
entitled to have had from the jury a distinct general verdict covering all the ingredients of
the case, not merely answers to the few ingredients the Judge might point out in certain
questions, and among those ingredients under the concluding clause of the 2nd section of the
Act (c. 10, 1880) respecting fraudulent preference of creditors, namely : " Nothing herein
contained shall invalidate or make void any bona fide sale of goods in the ordinary course of
trade or calling to innocent purchasers," was the direct point, whether, under that clause, the
petitioner's purchase was not a bona fide one, in the ordinary course of trade, and whether he
was not innocent of any collusion with King to defraud his creditors. The petitioner was
entitled to have had on that point the distinct verdict of the jury. Clear-headed, practical
business men, sitting as a jury, may come to the most correct conclusion on the whole case,
and yet be unable to stand a catechism of questions as to how in their several minds each
point was determined so as to make all agree. The right to have the jury's direct verdict, is
one of the most sacred rights the law gives a litigant. The answers given by the jury to the
questions submitted by the Judge are an illustration. Taken from the records of the County
Court, produced in Court and examined by myself, they are as follows :—
1. Was the purchase by Davies bona fide and for his own benefit ?    Ans.—Yes.
2. Was the payment by Mr. Davies bona fide, i. e., Was the money paid by him to E. M.
Johnson as agent for King simply ?    Ans.—No.
Or 3. Did Davies pay it to him in order to enable him to prefer Green and Strouss to the
creditors ?    Ans. —Yes.
4. Was King at the time insolvent, i. e., without the command of money to meet demands
then actually due from him ?    Ans.—Yes.
5. Did King intend to give a preference to Green and Strouss over and before his other
creditors ?    Ans.—Yes.
6. If so, did Davies know it?    Ans.—No.
7. Did Strouss and Green intend to obtain a preference?    Ans.—Yes.
We answer the 3rd question in the affirmative because we say that Davies did not on the
2nd January know that there were any other creditors.
The 1st, the 3rd with its rider, and the 6th are consistent and clearly in favour of the
petitioner, as bearing on the concluding passage of the 2nd section of the Act above referred
to. The 2nd, both question and answer, except as qualified by the rider to the 3rd, is confusing and inexplicable, and the 4th, 5th, and 7th, if the answers to the 1st, 3rd, and 6th be
correct, have no bearing on the petitioner Davies, because his innocence as a purchaser is found
by the 1st, 3rd with the rider, and the 6th. Upon these answers, which upon any other construction are inconsistent, the learned Judge bases his judgment against the petitioner and in
favour of Turner, Beeton & Co,, contrary to what appears to have been the idea of the jury. 1232 Davies v. McMillan. 1894
All this difficulty would have been avoided if the jury had simply brought in, or been instructed
to bring in, a plain verdict.
Even in cases where the Judge having all the materials before him may supplement the
finding of the jury, and, by drawing his own conclusions from the evidence before him, assume
as a fact proved that which the jury have not found, and thus render complete that which the
jury left incomplete; yet it seems to me clear law that his conclusion on facts not pronounced
upon by the jury, should be consistent with the conclusions of the jury on the facts on which
they have pronounced. In this case, his conclusions are clearly inconsistent with the answers
of the jury to the 1st, 3rd and 6th questions with the rider, as applied to the concluding
passage of the 2nd section of the Act referred to ; otherwise, what did the jury mean by
saying the purchase by Davies was bona fide, and for his own benefit 1 It cannot be bona fide
if intended to cheat some one else, or prefer some one contrary to law.
On the authority of this judgment, incorporated in their own order, the Divisional Court
say the petitioner shall not in the suit of the bank put in any claim to the property which the
bank had seized, which the learned Chief Justice, who had tried the Turner, Beeton cause,
had given him leave to do ; and who; after consideration, on a distinct application on behalf
of the bank, had refused to withdraw the permission so given—not only so, but in the bank's
case, in which the point had not been raised at all on appeal—absolutely forever bar the
petitioner from prosecuting his claim against the bank, or proceeding against the Sheriff for
anything he had done, or for the moneys paid to him by the petitioner, under the Chief
Justice's order.
With all deference to the high authority of that Divisional Court, it does seem to me
that the petitioner shows good cause to ask to have its proceedings reviewed.
From this Divisional Court order leave to appeal to the Supreme Court of Canada was
refused by one of the Judges of that Divisional Court, on the ground that it was not a
judgment of the Court of final resort in the Province, though the Act of the Province creating
it said its judgment should be final.
The next phase of this most extraordinary of extraordinary cases takes place in England.
The petitioner applied to the Privy Council for leave to appeal, and pending a long and
attentive hearing by the Court, suddenly an order in council made some few months before—
which had escaped the notice of both Court and counsel—was unearthed, which, dated the 12th
July, 1887 ! required that leave to appeal must be applied for to the Court appealed from
within 14 days after its decision, and which order in council was first published in British
Columbia about the time that the Divisional Court made its order, but had not come to the
notice of the bench or the bar in the Province. A more extraordinary combination of
untoward circumstances never, perhaps, before occurred to any one person arising out of one
transaction in any legal proceedings. The counsel for the petitioner calls it "The Comedy of
Errors."
The counsel for Turner, Beeton & Co., and the counsel for the Bank of British Columbia,
and the Sheriff, raise many technical objections to the mode of remedy asked for, even so far
as to say no error whatever appears on the face of the judgment—that the reasons for the
judgment constitute no part of the judgment—which is embraced in the simple words, "let
judgment be entered for the plaintiff or defendant," as the case may be,'and outside of those
words you cannot look. It would be a melancholy waste of time, of labour, and of learning,
and a mockery of justice, if such a limitation could exist.
The petitioner has exhausted every ordinary mode by which, in this country or in England,
he could obtain a hearing, and he now asks that ho may, through the exceptional process of a
bill of review, have the opportunity of being heard, and his case adjudicated upon in some such
way that appeal may be taken to the highest Courts of the Dominion or the Empire, if he is
advised so to do.
The points raised affect the interests of every business man in the country. I decide
none : but the facts, the judgments, the orders, the proceedings, the Statutes, the practice, the
argument before me, show most decidedly a wonderful difference of legal opinion in the application of law to the property and persons of litigants before the Courts.
I have been reminded two or three times during the argument that the four other Judges
of this Court have agreed upon the question. That, of course, necessitates the most careful
consideration on my part, but, fortunately, our Courts are so constituted that difference of
opinion on the Bench creates no embarrassment or ill-feeling; each Judge believing that it is
his duty to decide according to the best of his knowledge and his conscientious conviction. 57 Vict. Davies v. McMillan. 1233
Briefly summing up, it is claimed that the petitioner paid $8,000 for the goods, $395 to
the sheriff under the execution in Turner, Beeton & Co.'s case, and other sums of money under
order of the Court in the suit of the Bank of British Columbia. That the goods themselves
have been sold under the orders of the Court and the amount of $6,233.96 paid therein, the
amount of the bank's judgment being first deducted. That through erroneous decisions of the
Courts of this Province he had been deprived of his money, his goods, and right of action for
redress in this Province; and was deprived of his remedy, by appeal to the Privy Council in
England, by circumstances which could not have been foreseen or guarded against by ordinary
prudence.
That throughout, his conduct and actions have been bona fide and in accordance with law,
aud he asks that by means of a bill of review, he may have a hearing of his case, so that an
adjudication thereon may be had, and that he may be enabled, if advised so to do, to carry his
appeal to the highest Court of the Dominion or of the Empire.
It will be observed the granting this application concludes no party; each or any
defendant may raise his objection or state his defence as he may be best advised. The only
point I am asked to decide is, whether the petitioner has shown sufficient legal reasons to claim
this opportunity and this unusual remedy.
As far as I am able I have given this case the most careful consideration, and on every
principle of law, on every principle of justice, on every principle that divides right from
wrong, I think that the petitioner should have this opportunity and this remedy as against the
Bank of British Columbia.
The application therefore will be dismissed so far as it affects Turner, Beeton & Co., but
without costs, they having declined the offer made them shortly after the opening of the case,
and continued opposing the application to its close.
As affects the Bank of British Columbia, the application is granted with costs to be costs
in the cause.
Let the order be drawn up accordingly.
The order of Judge Gray to bring a bill of review was afterwards set aside by the Full
Court.
Joshua Davies brought an action against the Sheriff to recover damages for wrongfully
seizing and selling the goods, and by his amended statement of claim, dated 29th October,
1890, claimed $15,000 damages. The case was tried before the Chief Justice and a special
jury on the 19th January, 1891, and a verdict returned in favour of Davies for $9,161.
Judgment on the verdict was given by the Chief Justice for the amount thereof, and the
following were
BEASONS FOR JUDGMENT.
The following are the reasons of the learned Chief Justice :—
The parties not having been able to come to terms, I have now to give judgment.
The findings of the jury place the plaintiff in a very different position from that in which
he was placed by the verdict of the jury on the interpleader issue in 1888, although the first
question now left to the jury is not answered at all. The main issue being as to whether the
sale by King to the plaintiff was affected by the Statute, c. 10, and that Statute expressly
excepting from its operation all sales made in the ordinary course of business, the first question
I wrote down was " whether the sale (i. e., by King) was in the ordinary course of business ?"
To this the jury say neither yes nor no; but they say the purchase was made by the plaintiff
in the usual course of business, which is wholly beside the matter, and merely ignores the
question. The Statute, therefore, is not inapplicable on this ground. But there is, I think,
in other answers, sufficient to show that the Statute docs not apply ; so that the bill of sale to
plaintiff is valid, and the goods when seized by the Sheriff were the plaintiff's goods.
The plaintiff is entitled to have judgment according to the verdict, unless it be utterly
without evidence, or utterly contrary to the evidence, such as no man could reasonably
arrive at. 1234 Davies v. McMillan. 1894
Now, the jury find that the vendor was solvent at the time of the sale, i. e. "generally"
solvent, but that the sale itself at an undervalue made him generally insolvent. I conceive
that that is not such an assignment as is struck at by the Statute. And it seems probable
that if King had assigned for the benefit of his creditors they would all have been paid in full;
and that is what I take the jury to mean. Then there is surely considerable evidence to
justify the finding that the Sheriff exceeded his duty, the fact being that on a writ endorsed
for $350.00, he seized the whole stock of goods, valued at $12,000.00 or $14,000.00, and which
actually fetched, under all disadvantages, $8,000 or $9,000; the goods being easily divisible,
so that he could have seized a reasonable amount. Then, further, when that writ was wholly
paid off, he retained possession of the whole stock under colour of another writ for $530, in
favour of the Bank of B. C, and when this was also fully paid and satisfied he still retained
possession of the whole stock in expectation of other writs on other judgments (which indeed
soon afterwards came in, but were not lodged when the Bank's writ was satisfied) and held on
for four months keeping the stock in the expensive store, and a man in possession ; and after
all this, the Sheriff then sold in a manner that the jury found, and I do not disagree with
them, and not at all calculated to realize the best results.
Under these circumstances I must give judgment for the amount at which the jury
estimate the damage, viz., $9,161.00. As to what they add, " the money in Court to form
part of this amount," it is wholly beyond their power to dispose of that money, and no effect
can be given to that part of this verdict; although I quite agree that that would be a very
proper application of the money in Court, if possible, as indeed I clearly stated to counsel
when they moved for judgment; but I suppose they found some difficulty in the way. Costs
will follow the result.
The defendant appealed to the Supreme Court of  British  Columbia,  and  the  following
judgments were delivered reversing the judgment of the Chief Justice :—
FULL COURT.
Between
JOSHUA DAVIES,
Plaintiff,
AND
JAMES ELIPHALET McMILLAN,
Defendant.
Before Justices Crease, McCreight, Walkem and Drake.
August 26 th, 1891.
JUDGMENT.
McCreight, J.—This is an appeal from the judgment of the Chief Justice which he
delivered upon the findings of the jury before whom the case was tried, and there was also an
argument upon a motion for a new trial, which I shall deal with presently. Paragraphs 36
and 37 of the Statement of Defence assert that the proceedings and judgment on the interpleader issue between Davies, and Turner, Beeton & Co. is conclusive against Davies' right
to the goods for all purposes and between all parties, but I think this proposition cannot be
maintained. It is to be remembered that the interpleader issue was only for the purpose of
informing the conscience of the Court as to whether in the case of Turner & Co. v. King the
goods were available to satisfy the execution creditors and could have no ulterior operation.
If conclusive against Davies for all purposes and between all parties it would also have been
equally conclusive in his favour against all creditors if the decision had been for him; but this
as a proposition obviously could not be maintained. The decision was not in rem. Order 57,
rule 4 (14), English, (see Cababe on Interpleader, p. 49 ; and 2 Arch. Pr. p. 1,300, 14th
ed.) for the consolidation of interpleader orders would have been wholly useless if such a
doctrine was correct,    Outram v.   Morewood, 3   East,   and  the  notes   to  the   Duchess  of 57 Vict. Davies v. McMillan. 1235
Kingston's case, 2 Sm. L. Ca., may be referred to as showing the conditions of a plea in bar
and the operation of res judicata. Lastly, the very recent case of McNair & Co. v. Adenshaw
P. & C. Co. (1891) at 2 Q. B. 505, 507 0. A., shows that " the decision of a Judge on an interpleader issue is not a final judgment, but it is a decision in a proceeding, which is in the
nature of an interlocutory proceeding " (referring to McAndrew v. Barker, 7 Ch. D., p. 701).
But then it was contended that the Divisional Court order of the 16th day of April, A. D.
1888, operated as a stay of proceedings. Now it seems too late to insist on this as a stay of
proceedings after verdict and judgment. But I think it could not have, at any time, been
successfully invoked, and indeed the proceedings before the Chief Justice and the Divisional
Court show as much ; for at the end of last year he refused to stay proceedings in the action,
and the Divisional Court, though divided, affirmed his judgment or order. I may observe,
that perusal of the order of the 16th April, 1888, coupled with the orders of the 14th January
and 23rd March preceding, seem to show that the object of the order of the 16th April was
mainly to keep alive the protection afforded to the Sheriff by the order of the 14th January,
whilst rescinding in other respects that order as well as the order of the Chief Justice, of the
23rd March, refusing to rescind his previous order. If the order of the 16th April was meant
to protect the Sheriff in omnibus, it is, I think, ultra vires, and as such, an appeal from it
would have been and was unnecessary—see per Jessel, M. R., Cape Breton Co. v. Fenn, 17 Chan.
D., 202 C. A. This view may work a hardship on the Sheriff, but if the findings of the jury in
this case are to prevail then the goods must be taken to have been the goods of Davies, as from
the date of his purchase for all purposes, and at all events such protection could at best extend
only to sales made under the writ of the 6th January, at suit of Bank of British Columbia
for $546.50. The trespasses complained of in the present action seem to consist mainly of
sales made by the Sheriff during the month of April and for the purpose of course of satisfying
other executions, amounting to a large sum and affecting goods worth $7,000 or $8,000 at the .
least, and there is no averment in the statement of defence that the trespasses set out in the
statement of claim are covered by the order of the 16th April, nor could any such statement
have been proved.
I think sec. 90 of the County Court Act, Consolidated Statutes, cannot help the Sheriff
for the above reasons, if the finding of the jury is to stand, and I think the Act is concerned
only with the case in hand, that is, Turner v. King, for $337. If it had been meant to give all
the jurisdiction of a Superior Court very different language would have been employed.
I think no case of election can be made out on the part of Davies to take the proceeds of
the Sheriff's sale merely by reason of Davies applying to have the money paid out of Court to
him, inasmuch as such application was not made till the 12th December, 1888, and the Writ
of Trespass, &c, had already issued during the previous month of November, as well as for
other reasons. (See the Judgment, Clough v. London and North Western Railway Co., L. R.,
7 Ex., in the Exchequer Chamber.)
With respect to the argument on the rule for a new trial, some of it was applicable as
much to an appeal against the judgment of the Chief Justice upon the verdict or findings of
the jury as to the rule, but it will be convenient to deal with it as it was addressed to us.
Now, it does not seem to me that the findings of the jury ; firstly, that Davies did not
intend that any particular creditor should be preferred; and secondly, that he bought out
and out for himself, are exhaustive and conclusive in favour of Davies—and that it has been
settled by a line of cases, including Tuer v. Harrison, 14 C. P. Ontario, and up to Burns v.
Mackay, 10 Ontario Reports, 167 (affirmed on Appeal, see 18 Appeal Ont., per Osier, J., p.
164) that a concurrence of wrong intent on the part of the purchaser as well as the seller, is
necessary in order that the deed should be held void. The imperfect answer of the jury to the
question "Was the sale made in the ordinary course of business?" seems, to me, not very
material in this view. A sale not made in the ordinary course of business, is not necessarily
made with intent to prefer or fraudulent, though of course suspicious. I do not wonder at
the jury finding in favour of Davies, or at least their finding may be easily explained by the
circumstance that Davies paid $8,000, and that the goods when sold under apparently a
careful, if not skilful, sale by the Sheriff, realized only $6,894 net; as to this, see Baxter v.
Pritchard, 1 Adolphus & Ellis, and the question put by Littledale, J., in that case.
Mr. Richards, for the defendant, I believe, admitted he could find no English or Ontario
case, or in the Supreme Court of Canada, to the effect that sales not made in the ordinary
course of business are necessarily fraudulent, under this Act, or void.
Mr. Richards argued there was misdirection in the charge of the Chief Justice in assuming 1236 Davies v. McMillan. 1894
that legal insolvency, as well as commercial insolvency, was necessary to make the Act apply ;
but assuming this to be so, this is not material if the purchaser satisfies the provisions of the
Act, or rather has so acted as to exempt himself from its operation, and I think the two
findings of the jury to which I have referred go that length.
Mr. Richards argued that judgment should not have been given by the Chief Justice for
the sum of $9,061, as that amount was only given on the footing that the Sheriff was to have
the sum of $6,894, which he paid into Court, but I think that cases cited by Mr. Wilson go
far to answer that objection, i, e,, Mears v. Griffin, 1 Man. <fc Gr. ; Sheridan v. Pigeon, 10
Ontario Rep., 632 and 637 ; and Bicknell v. Smith, 62 PennsyL, p. 45 ; but I think that the
objection admits of a further answer, namely, that the recommendation of the jury was little
more than a statement of the law. It is held in Richmond v. White, 12 Chan. D., 0. A.,
that a party paying money into Court under an order loses none of his rights to the fund—see
especially per Cotton, L. J. Therefore the question must be determined, as if that amount
were still in the Sheriff's hands. Now, if that were so under the old system of pleading (and
the new would not substantially differ) the plaintiff would sue the Sheriff for the proceeds of
the sale, as for money had and received, and would join a count in trover or trespass for the
goods. If successful, he would take his verdict no doubt for the larger sum, that is, the
damages, and upon payment of that amount the defendant would be entitled to the proceeds
or the goods if they continued in specie. This seems to be amply proved by Buckland v.
Johnson, 23 L. J., C. P., per Jervis, C. J., qualified by Brinsmeed v. Harrison, L. R., 6 C. P.,
showing that the property did not vest in the trespasser till he had paid the damages, but did
thereupon. Whence it should seem that if the verdict and judgment stand and the Sheriff
pays .the damages, he will be entitled to the money in Court, the result of the litigation being
that whilst Davies is entitled to damages, the Sheriff is or will be entitled to the goods or the
proceeds. Of course, this assumes that Davies owns the goods under the Bill of Sale of
January, 1888, and it is just possible, though not probable, that in a suit on behalf of the
creditors, this position might be successfully controverted, but even if such action was brought
on behalf of the creditors, on the principle that he who seeks equity must do it, the plaintiff
would have to pay Davies the sum he had paid, of $8,000, and of course this would not be
done merely for the purpose of obtaining the proceeds in Court, namely $6,894. An action
by one creditor alone on his own account, would probably under all the circumstances be
stayed, and an action on behalf of all directed, which, no doubt, in view of the preliminary
payment or offer to be made, would be dropped.
Of course, before so large a sum as $6,894 was paid out, due precautions would be taken
by the Court, but it does seem to me that it may be looked upon as a kind of salvage to the
Sheriff if the verdict stands. As to which, however, I am by no means sure that my learned
brothers entertain the same views as I do. I cannot say the verdict is such as reasonable
men could not have arrived at, and I have to bear in mind that the finding of fraud, or its
absence, is especially within the province of the jury.
The charge to the jury of the learned Chief Justice (see p. 118, Appeal Book) criticises
the sale and transaction with some severity, and judging from the evidence, as against some
of the parties, I cannot say that it is unmerited ; but the validity of the transaction, according
to the authorities to which 1 have referred, seems to depend, as far as Davies is concerned,
upon his own bona fides. But the evidence (see p. 22, etc., Appeal Book,) shows Davies had
the sale under consideration on Saturday, the 31st December. That about noon on the 2nd
January (see question 16) he asked his legal adviser to prepare a bill of sale. His bona fides
further appears from questions and answers 47, 48 and 70, as to what King told him of his
solvency, and see further questions 13, 96, 103 and 104, and lastly 124, showing that King
was present when E. M. Johnson received the money for him. The jury, as it seems to me,
were fully entitled to infer bona fides from his evidence. It is impugned by no one, except
partially lay King, but even he admits, question 1,024, that Davies called round on the morning
of the 31st December and looked at the stock. The questions and answers, where he may be
considered as impugning the conduct of Davies, appear to questions 1,032, 1,039, 1,122, 1,168
and 1,170, but we should remember the circumstances under which he gave evidence. He
seems to have felt much the questionable position in which he was placed, by omitting to
follow Mr. Mills' advice as to making an assignment, and would naturally feel disposed to lay
blame on every one concerned in the transaction, whether innocent or not. I only mention
this as showing that the findings of the jury were such as reasonable men might well have
returned, especially having regard to the payment by Davies of $8,000, and I will only add 57 Vict. Davies v. McMillan. 1237
that the charge as to the proviso in the Act as to sales in the ordinary course of business (see
p. 119 of Appeal Book), differs from the interpretation placed on that proviso by the Court of
Common Pleas in Ontario, in Tuer v. Harrison, 14 C. P., at p. 456.
I think the judgment of the  Chief Justice should be affirmed, and that the order nisi
for a new trial should be discharged.
JUDGMENT.
Crease, J. :—
In this appeal from the judgment of the learned Chief Justice, the Judges in Appeal have
conferred long and carefully. Although not fortunate enough to come to an unanimous
decision, my learned brother Mr. Justice Walkem and myself concur in the opinion which our
learned brother Mr. Justice Drake has expressed in his written judgment which I have read,
and in the reasons, as well as the conclusions, of which I concur. There is nothing which I
can usefully add to it, except to note, what I did not see recorded, that the decision of the
Divisional Court delivered on 16th April, 1888, on an appeal from a decision of the learned
Chief Justice in the case of the Bank of B. C. v. Atwell King, and between Joshua Davies v.
Bank of British Columbia, was based on the principle which had been always acted upon in
the Courts of British Columbia, that when a deed of assignment is avoided under such
circumstances as were proved in this case it is set aside once and for all against all creditors ;
and in giving that decision the construction was put upon the several portions of section 90 of
the "County Court Act " as is adopted by a majority of the Judges in the present appeal. I
consider and adjudge that the appeal in the present case should be allowed, and the action
dismissed, with the costs of this Court and of the Court below, but that there should be no
costs of the motion for a new trial made at the same time.
HENRY P. PELLEW CREASE, J.
JUDGMENT.
Drake, J. :—
The facts show that Atwell King sold out his stock in trade, consisting of toys and fancy
goods, to the plaintiff for $8,000, of which sum $1,500 only was paid to the vendor, the
remainder of the purchase money was in the shape of a promissory note for $6,500 made by
the plaintiff to a Mr. Baker, and indorsed by him, and also by E. M. Johnson, and apparently
discounted at the bank, and the proceeds paid to Garesche, Green & Co. and Strouss, the two
chief creditors of King, and which payments discharged their claims in full.
It is alleged that Johnson and Strouss together obtained the plaintiff as purchaser of the
goods without communicating to him why or wherefore King desired to sell. Johnson
arranged the price and received the money and distributed it as to $1,450 to King and the
remainder to these two creditors.
The whole surroundings of this transaction are suspicious. Johnson says he was acting
as King's agent, but he certainly was not acting in his interest, and admits he was acting for
Garesche, Green & Co. and Strouss, in order to obtain payment of their debts.
The transaction was completed late at night, apparently in a considerable hurry, Johnson
apparently being afraid that on a calm consideration King would execute an assignment for
the benefit of his creditors. The plaintiff purchased the goods after a most cursory and
casual inspection, not lasting ten minutes and no questions asked, no invoices produced, and
no books examined. The rooms in which the greater part of the goods were stored were never
entered. The price offered being between 50 and 60 per cent, of the alleged value. A bill of
sale was prepared by Mr. Wilson, as solicitor for Davies, and executed in the evening by
King, Strouss and Davies being present. The whole evidence shows that inducements were
held out to King not to make an assignment for creditors, but to complete this transaction by
which he would get $1,500 and these special creditors would be preferred, whereas if he made
an assignment for creditors he would only receive $500 under the Homestead Act.
King at this time was greatly involved, and a great deal of discussion has taken place as
to whether he was in insolvent circumstances at the time of the act, and did the plaintiff 1238 Davies v. McMillan. 1894
know it, the jury having found that King was commercially insolvent, but not generally. In
my opinion if a person is commercially insolvent (if that means he cannot meet his trade bills
as they become due), he is in insolvent circumstances, and all the facts in this case support
that view. King was refused bank accommodation ; he owed $12,000, and all he had to meet
his liabilities was his stock of goods and some book debts of little value ; his household furniture belonged to his wife, and was not, therefore, an available asset. The value of his goods
would be what they would realize at a forced sale, and that has been ascertained to be under
$8,000.
Under the Statute in Ontario, which is almost identical with the one on our Statute
Book, the Courts in Ontario have, after a considerable difference in opinion, finally decided
that there must be knowledge of the insolvency, both as regards the debtor and as regards the
person in whose favour an assignment is made. The fact that an insolvent trader makes an
assignment in favour of a creditor not knowing of the insolvency is no reason for setting the
deed aside. Although these decisions are not binding on us, yet they are entitled to great
weight, and should not be lightly discarded.
(See Johnson v. Hope, 17 O. A. 10; Gibbons v. McDonald, 19 O. B. 292.)
But the present case is different from all those which were cited. This is not the case of
a creditor preferred by his debtor, but of a sale made to a stranger for the purpose of preferring
certain special creditors; an indirect way of trying to avoid the Act. The Act says that nothing
in the second section contained shall invalidate or make void any bona fide sale of goods in the
ordinary course of business to innocent purchasers. This was not a bona fide sale in the
ordinary course of business ; the ordinary course of business was not to sell out a retail
dealer's entire stock and fixtures in one lump. Therefore this sale not being in the ordinary
course of business is not invalidated by the Act. On this point the jury did not make any
answer to the question submitted to them, " was the sale of the 2nd January, 1888, made in
the ordinary course of business ?" Their answer was "Yes, as far as Davies was concerned."
That is no answer to the question. The insolvent circumstances of the debtor were known
and believed in by Strouss and Garesche, Green & Co., so much so that they commenced legal
proceedings for the recovery of their debts. There was material knowledge of this fact in
both debtor and creditor. Can then the intervention of a third person in the position of Mr.
Davies prevent the operation of the Act and render valid this bill of sale? I think not;
there is such a thing as being wilfully blind and deaf, and it appears to me that the present
plaintiff was both. He made no enquiries of King ; he never even mentioned the price or asked
whether King was willing to sell, or if Johnson was authorized to sell for him. He never
paid over the purchase money to King, but to Johnson, his alleged agent ; although King was
there, and Strouss was there, he carefully abstained from obtaining any information on the
subject. I therefore think that the deed thus obtained was and is void as against the other
creditors of King, but the case does not rest here. The assignment to the plaintiff was made
on the 2nd January, and the plaintiff entered into possession of the goods; on the 5th January
a judgment was obtained by Turner, Beeton & Co. in the County Court under section 90 of
the County Court Act, and a warrant of execution was placed in the defendant's hands, who
levied on the goods, whereupon the plaintiff gave notice of claim. Before proceeding to
discuss the proceedings which subsequently took place on this interpleader it will be as well to
dispose of the contention which was prominently urged, that proceedings taken under section
90 of the County Court Act enure for the benefit of all creditors. The section says " that
any judgment that may be recovered and any execution shall enure for the benefit of the
creditors of the parties summoned." This means that the party obtaining the judgment and
the fruits thereof shall divide the amount recovered amongst all the other creditors. The
latter part of the section " that such and the like proceedings may be taken, thereon as upon
a creditor's suit" is difficult to give effect to, because a decree in a creditor's suit is in its
nature a judgment for all the creditors, and such a decree is only known in an administration
action, and the course of proceeding after such a decree is clearly laid down, but here no
procedure is given. This section does not give to the judgment that may be obtained the
same effect as an administration decree, if it did and made the assets of the debtor divisible in
equal shares amongst his creditors the Act would be trenching on bankruptcy and insolvency,
a subject not within the scope of Provincial legislation, but it may have this effect, that a
judgment thus obtained enures to the benefit of all creditors, and in setting aside the deed of
assignment the deed was set aside once and for all for the benefit of all creditors. Beverting to
the incidents of the proceedings, the defendant on receiving notice of claim by the plaintiff in 57 Vict. Davies v. McMillan. 1239
Turner's  case interpleaded, and  an  issue  was  directed, and on the 2nd February, 1888, the
issue came on for trial before the Chief Justice sitting as a County Court Judge and a jury.
The questions then submitted to the jury were :—
1. Q.—Was the purchase by Davies bona fide and for his own benefit ?    Ans.—Yes.
2. Q.—Was the payment by Davies bona fide; i. e., was the money paid by him to E. M.
Johnson as agent for King simply 1    Ans.—No.
3. Q.—Did Davies pay it to him in order to enable him to prefer Green and Strouss to
the creditors ?    Ans.—Yes.
4. Q.—Was King at the time insolvent; i. e., without the command of money to meet
demands then actually clue from him?    Ans.—Yes.
5. Q.—Did King intend to give a preference to Green and Strouss over and above his
other creditors?    Ans.—Yes.
6. Q.—If so, did Davies know it ?    Ans.—No.
7. Q.—Did Strouss and Green intend to obtain a preference 1    Ans.—Yes.
These questions show that the facts submitted to the Jury in the first trial are identical
with those of the present action. On these findings the learned Chief Justice gave judgment
against the present plaintiff, the claimant in the interpleader, and declared the bill of sale
invalid against creditors.
The plaintiff appealed from that judgment to the Supreme Court, and that Court
dismissed his appeal and confirmed the judgment of the Chief Justice.
This judgment then finally declared the invalidity of the deed of assignment from King
to Davies as against creditors.
Before this decision was arrived at, namely, on the 6th of January, 1888, the defendant
again seized, under a writ oi fieri facias issued by the Supreme Court in an action wherein the
Bank of British Columbia were plaintiff's and King defendant, and in this case the present
plaintiff gave notice of claim, and on 11th of January, 1888, commenced an action against the
defendant, the writs being indorsed, for wrongfully seizing the plaintiff's goods, and claimed
$8,000. The defendant thereupon interpleaded, and the Chief Justice, on the 14th January,
made an order directing the trial of an interpleader issue; in the meantime, before the day
fixed for the trial of this interpleader, the above mentioned judgment of the Chief Justice was
rendered in the interpleader action wherein the plaintiff was claimant against Turner, Beeton
& Co., whereupon the Bank of British Columbia applied to the Chief Justice to rescind his
order directing an interpleader issue on the ground that the same facts would be in issue as
was decided in the Turner, Beeton & Co. case. The Chief Justice refused the application,
whereupon the Bank appealed to the Divisional Court, and on the 16th of April that Court
rescinded the interpleader order and further ordered that the claimant, the present plaintiff, be
forever barred from prosecuting his claim mentioned and referred to in the affidavit of the
defendant of the 14th January, 1888, which sets out the writs of summons. And it was
further ordered that the present plaintiff bring no action against the defendant for anything
done by him under the writ oi fieri facias dated 6th of January, 1888, nor for any moneys
paid to the defendant by virtue of the order of the 14th January, 1888.
The present action is identical with the one thus barred by this order, except that the
damages are claimed at $15,000 in lieu of $8,000.
On the 16th of January the defendant made a further seizure under a writ of fieri facias
issued out of the Supreme Court at the suit of J. A Skinner & Co., and from that time forth
a large number of writs were placed in his hands, and he sold the goods thus seized by him ;
he paid the Bank's execution, and before any other payments could be made the plaintiff, in
May, 1888, obtained an order directing the Sheriff to pay the amount of his sales into Court.
This order was made on the ground that the plaintiff was a creditor of King. The affidavit
on which the order was made is, however, missing. The plaintiff subsequently commenced and
abandoned two other actions against the defendant, and on the 22nd of November this action
was commenced asking for damages against the defendant as well as the Bank of British
Columbia. Subsequently the action against the bank was abandoned, and the plaintiff
proceeded against the present plaintiff alone.
The defendant has by his pleadings raised the issue of res judicata ; whether or not the
judgment of the Divisional Court of the 16th April, 1888, was right, it is too late now to set
it aside even if this Court had the power, which by Statute it expressly has not. By that
judgment the plaintiff is barred from prosecuting his claim against the defendant. That claim
is shown by the writ of the 11th January, 1888, being for damages for wrongfully seizing the 1240 Davies v. McMillan. 1894
plaintiff's goods. What is this action but an action for damages for wrongfully seizing the
plaintiff's goods? In my opinion, therefore, the plaintiff has no right of action against the
defendant on the present pleadings.
It was argued that the judgment of the Chief Justice in the interpleader action of
Davies v. Turner was not a bar as res judicata, as that decision was not between the same
parties, although under the authority of Kinnersley v. Cope, 2 Doug. 517, that judgment
might be given in evidence although nominally between different parties, yet substantially
between the same; and Story, Equity Pleadings, 8 Edn., sec. 7836, lays it down that it is not
indispensable to render a former decree conclusive against a party that he should have been
named in a former proceeding; it will be sufficient that it embrace his interest in the subject
matter in such a form as to have admitted of his contesting the same question which is now
presented.
I think the effect of the Chief Justice's judgment is a protection to the Sheriff on two
grounds, first, as being res judicata, and, second, that the judgment, as I have already pointed
out, enures to the benefit of all King's creditors, under section 90 of the County Court Act.
The case of Richel v. Magrath, 14 App. C. 665, is in point. The plaintiff in that case
had brought an action against the Bishop of Oxford and others, and his action was dismissed.
Magrath having been appointed to the living which was the subject of not being able to obtain
possession, commenced an action against Richel, who thereupon set up as a defence the same
facts which he set up in his claim against the Bishop. The Lord Chancellor in giving judgment
said it would be a scandal to the administration of justice if the same question having been
disposed of in one case, the litigant was to be permitted by changing the form of proceedings
to set up the same case again. It must be in the jurisdiction of the Court of Justice to
prevent a relitigation of the same questions which the Couri, has decided in a separate action.
The principle here enunciated is repeated in re May, 28 Chan. Div. 518, by the Master
of the Bolls, and is further illustrated in Bank of Hindustan & Alison's case, 9 Chan. App. 7.
Alison was a shareholder in the Imperial Bank, which bank transferred its business to the
Bank of Hindustan. Alison, after the amalgamation paid calls on his shares, but subsequently
refused to pay any further calls, relying on the decision of Vice-Chancellor Giffard, in 6 Eq.
9, that the agreement between the two banks was void. The Bank of Hindustan sued Alison
for the amount due, and a verdict was found for the Bank, subject to a special case, and the
Court of Common Pleas held that the amalgamation of the banks having been declared void,
they gave judgment for Alison, and at p. 25 of 7 Chan., Sir J. Mellish says it is clear that the
judgment of the Court of Common Law is not only conclusive with reference to the actual
matter decided, but it is conclusive with reference to the grounds of decision provided, that
from the judgment itself the actual grounds of decision can be clearly discovered. And
Justice Willes, in Langmead v. Maple, 18 C.B., N.S., 255, says the conditions for exclusion of
jurisdiction on the ground of res judicata are, that the same identical matter shall have come
already in question in a Court of competent jurisdiction that the matter shall have been
controverted and finally decided.
These cases seem to govern the present case, and, in fact, if the decision of the Chief
Justice has been in favour of the deed it would have equally bound the Sheriff and could have
been pleaded by Davies in any subsequent seizure of goods.
On the second point, the case of Jenkyn v Vaughan, 3 Drury 419, appears applicable.
The Vice-Chancellor says it is not in dispute that a subsequent creditor is entitled to
participate if the instrument (i. e., a deed which would be void under the statute 7 Elizabeth)
is set aside by any creditor, and in the case of re Madden, 27 Ch. D. 529, decree (in an action
to set aside a deed as fraudulent under Elizabeth), was that the conveyance was void as
against the plaintiff and all other creditors. The principle of these cases appears to be that a
deed of assignment which has the effect of defeating or delaying creditors when set aside, is
set aside for the benefit of all creditors, and any other construction would lead to a multiplicity
of suits, which is contrary to the policy of our laws. This deed, therefore, having been set
aside in favour of Turner is set aside in favour of all King's creditors.
I don't think it is necessary to discuss the question of election raised by the defendant's
counsel, as there is no sufficient evidence of an election here, contrary to the cause of action
specified in the writ.
There is still another ground which I think entitles the defendant to succeed.
The plaintiff' by his pleadings has laid his damages as arising from a seizure by the
defendant of his goods on the 6th January, 1888. The defendant was protected by the order
of the 16th April from all actions by the plaintiff in respect of anything done under the writ 57 Vict. Davies v. McMillan. 1241
oi fieri facias issued in the Bank of British Columbia action. This was the only writ under
which the defendant was in possession until the 16th January, 1S88, and as he sold goods to
pay the Bank of British Columbia debt, his protection extends to everything done by him in
realizing this judgment.
This fact does not appear to have been brought to the attention of the jury, and the
damages appear to have been assessed generally for everything done by the Sheriff on and
after the 6th January.
This point, however, is comparatively of small importance in the view I take of the
other grounds. I think the appeal should be allowed, and the action dismissed with costs of
this Court and the Court below, and as with the present appeal an action for a new trial on
behalf of the defendant was made, I think there should be no costs of that motion.
Here Davies set up his claim against the Sheriff. Turner was substituted for the Sheriff,
and if Davies could renew his action against the Sheriff he could renew his action against
Turner. Davies failed ; he then commenced another action on the same state of facts against
the Sheriff, and the Court barred him from further proceeding. He abandoned that action
and commenced the present one on the same facts. In my opinion it would be a scandal to
allow this action to proceed. There must be some finality to litigation and to allow an
unsuccessful litigant to bring action after action for the same subject matter, varying the
nominal defendants and the damages, would render the administration of justice a delusion
and a snare.
The judgment of the learned Chief Justice must therefore be reversed.
Contemporaneously with the present appeal an application on behalf of the defendant
for a new trial was made and argued. Taking the view I do of the law as applicable to the
case a new: trial will be unnecessary.
Walkem, J.:—I have read the Judgment of my brother Drake, and I concur in that and
in the reasons upon which it is founded.
The plaintiff Davies appealed to the Supreme Court, of Canada, with the  result  that  the
judgment of the Full Court was reversed, and the judgment of the Chief Justice restored.
The following was the judgment of the Court:—
SUPREME COURT OF CANADA.
Davies v. McMillan.
Gwynne, J.:—
This appeal must, in my opinion, be decided solely upon the contention insisted upon by
the defendant, that the decision in the interpleader issue in the County Court case of Turner,
Beeton k Co. v. King, constitutes a complete bar to the present action. Whatever collusion
there may have been between King's creditors, Garesche, Green & Co., and Strouss & Co.,
and King himself, to procure King for their benefit to make the sale which he did to Davies,
of which the other creditors of King might have had reason to complain, Davies does not
appear to have been a party to any such collusion. He appears to have acted solely in his
own interest and as a bona fide purchaser for value. The amount paid by him for the
stock of goods purchased appears to have been the fair cash value at the time, and the
evidence failed to establish either that Davies knew of King's circumstances as being
insolvent, or that his intention in making the sale was either to defraud his creditors or any
of them, or to give some or one a preference over others, even if that knowledge could
prejudice Davies' rights as a purchaser, and the jury have found that Davies in making the
purchase had no intent that any creditor of King's should be preferred. In short, the only
conclusion which the evidence in the case and the finding of the jury warrant is that the
purchase made by him was in perfect good faith for valuable consideration actually paid by
him and without any fraudulent intent being entertained by him. Such a transaction cannot
in my opinion be held to be fraudulent and void without imputing to the Statute relied upon 1242 Davies v. McMillan. 1894
an intent in the interest of the creditors of a vendor to make the Courts of Justice parties to
the committal of fraud upon innocent purchasers for value ; and no such construction can be
put upon the Statute Accordingly, the learned Chief Justice of British Columbia who tried
the case rendered judgment for the plaintiff upon the answers of the jury to the questions
submitted to them ; and that such judgment is that which was warranted by the answers
of the jury to the questions submitted to them, upon their finding as to which, the right of
the plaintiff to recover in the action depended (assuming the action not to have been barred
by the judgment on the interpleader issue in the County Court case of Turner, Beeton & Co. v.
King) cannot in my opinion admit of a doubt. Then as to the effect of the judgment on the
interpleader issue in the said County Court case, I concur in the judgment of Mr. Justice
McCreight in the Supreme Court of British Columbia, namely, that such judgment cannot
operate as a bar to the present action. To hold that such judgment, from which there is no
appeal to this Court, as there is from a judgment on an interpleader issue in an action
commenced in a superior court, would so operate, would give to a judgment of an inferior
court of limited jurisdiction the effect of being conclusive in an action in the Supreme Court
of British Columbia, and in this court of appeal, in respect of a cause of action wholly beyond
the jurisdiction of the County Court to entertain.
The action is one of trespass brought against the defendant for breaking and entering
the plaintiff's shop, and continuing therein for a long space of time, to wit, for four months,
and taking and selling the plaintiff's goods and chattels therein to the plaintiff's damage of
$15,000.
The facts of the case appear to be that on the 5th January, 1888, the defendant as
Sheriff entered the plaintiff's shop and made a seizure and levy on goods therein to the
amount of $370, to satisfy an execution issued out of the County Court of Victoria, in British
Columbia, at the suit of a firm of Turner, Beeton & Co. against one Atwell King, and placed
in the hands of the Sheriff to be executed. On the 6th January, 1888, the plaintiff gave
notice to the defendant that he claimed to be the owner of the goods so seized, and paid to
the defendant $395 as security for the said judgment debt, interest and all costs in case the
plaintiff should fail to establish his ownership of the said goods ; and thereupon the defendant
then withdrew from the possession of the goods seized under the said writ of execution. On the
same 6th day of January, 1888, the defendant as such Sheriff made another seizure of goods
in the said shop to the value of $550, to satisfy an execution issued out of the Supreme Court
of British Columbia at the suit of the Bank of British Columbia against the said Atwell King.
These seizures were made upon the contention that the goods so seized were the goods of King,
the defendant in said actions.
The plaintiff having given notice to the defendant that he claimed that the goods so
seized under the said execution at the suit of the Bank v. King were the goods of the plaintiff,
the defendant upon the 14th January, 1888, obtained an order of the said Supreme Court in
the suit of the Bank of British Columbia v. King, which order is not produced, but whereby
it appears, by a bond by way of security given in pursuance thereof, to have been ordered that
on payment of $550 into Court by the said plaintiff, or upon his giving security to the satisfaction of one of the Judges of the said Court for the payment of the same amount by the
plaintiff, according to the direction of any rule or order to be made in the said cause, and upon
payment to the defendant of possession' money and expenses from the said 6th January, the
said defendant should withdraw from the possession of the goods and chattels seized by him
under the said writ of execution, and that unless such payment should be made, or such
security be given, the said defendant should proceed to sell the said goods and chattels so
seized, and pay the proceeds of such sale, after deducting the expenses and possession money
from the date of the said order, into Court in the said cause to abide further order, and that
the parties should proceed to the trial of an issue in which the said Davies should be plaintiff
and the Bank of British Columbia the defendant; and that the question to be tried should be
whether at the time of such seizure the said goods and chattels seized were, or any part was,
the property of the plaintiff. Subsequently (the terms of the said order having been complied
with by the plaintiff upon his part) the defendant, in compliance with the said order upon his
part, abandoned possession of the said goods seized under the said writ of execution at the
suit of the Bank of British Columbia v. King.
By a record of the proceedings of the County Court in the case of Turner, Beeton &
Co. v. King it appears that on the 18th January, 1888, an interpleader order issued in that
case which is not produced to us, but which appears to have been to the like effect as the 57 Vict. Davies V. McMillan. 1243
above order issued in the case at the suit of the Bank of British Columbia v. King, whereby
it was ordered that the parties, Davies, and Turner, Beeton & Co. should proceed to the trial
of an issue, in which Davies should be made plaintiff, and the said Turner, Beeton & Co.
should be made defendants, and that the question to be tried should be whether at the time
of the seizure of the goods and chattels seized by the Sheriff under the writ of execution at
the suit of Turner, Beeton & Co. v. King, the same, or any of them, was the property of Davies.
This latter issue appears by the record of the proceedings in the said County Court to have
been tried on the 2nd February, and judgment to have been rendered thereon upon the 16th
day of February, 1888. Now, upon the 17th and 21st of January, and upon the 3rd and 10th
of February, the 3rd of March, and the 7th, 10th, 12th, Nth, and 23rd of April, 1888,
respectively, the said Sheriff made several other levies upon and seizures of the goods and
chattels in the same shop of the plaintiff, to the amount of about $8,000, under divers
executions against the said King placed in the Sheriff's hands to be executed, and upon the
10th, 11th, 12th, 25th, 26th, and 27th days of April he proceeded to sell and sold the same.
It is for these seizures and sales so made upon and subsequently to the 17th day of January,
1888, that the present action is brought.
Now, in order to set up the judgment of the County Court upon the interpleader issue in
the County Court case of Turner, Beeton & Co. v. King as a bar to the present action, the
matter so relied upon as a bar must be specially pleaded by way of estoppel, as in Fletters v.
Allfroy, L. B. 10 C. P. 29, and as the judgment upon that issue could not upon its face show
any ground of estoppel of the present action, it would be necessary that the plea should contain
suitable averments of what was the precise matter in contestation in such interpleader issue
and of what is the precise matter in contestation in the present action, so as to raise for
adjudication the question of estoppel relied upon by the defendant. Thus it was not only
necessary to set out what was the issue directed to be tried, namely, whether the goods and
chattels seized by the Sheriff under execution at the suit of Turner, Beeton & Co. v. King
were, or any of them was, the property of Davies, but also the particular matter of fact upon
which that question of title depended, namely, whether the deed of conveyance by which the
goods and chattels so seized had been conveyed by King to Davies was or was not fraudulent
as against the creditors of King, and the finding of the jury upon the trial of such issue. And
since at the trial thereof the jury rendered no verdict against Davies upon such issue, but merely
answered certain questions submitted to them by the Judge who tried the issue, who, upon
the answers of the jury to such questions, afterwards rendered judgment, it would have been
necessary to set out in the plea of estoppel the questions submitted and the answers of the
jury thereto and the judgment of the Judge thereon ; and if it should then appear that such
answers of the jury did not warrant a judgment to the effect that the said conveyance by King
to Davies was fraudulent and void as against the creditors of King, and that by reason thereof
the goods and chattels so seized were not the property of Davies, but that, notwithstanding
the Judge who tried the issue upon such answers of the jury rendered a judgment to that effect
against Davies upon such issue, the plea of that judgment by way of estoppel to the present
action would be bad in substance and could constitute no bar whatever to the present action.
Now we have before us, though not in the form of such a plea by way of estoppel, what were
the questions which were submitted to the jury upon the trial of said interpleader issue and
the answers of the jury, whereby it appears that such answers did not warrant a judgment
against Davies in the interpleader issue to the effect that he had no property in the goods and
chattels there in question by reason of the conveyance whereby the said goods and chattels
were transferred and conveyed by King to Davies, having been fraudulent and void as against
the creditors of King. The jury found, as a matter of fact, in answer to the only questions
submitted to them upon which the title of Davies to the goods in question mainly depended,
that Davies had purchased them from King for his own benefit, and that he had no knowledge
of King having had any intention to apply the purchase money paid by Davies for the goods
and chattels so purchased by him to some of his (King's) creditors in preference of others.
Another of the questions submitted to the jury appears open to the question whether it
was relevant to the issue being tried but to which I make reference by reason of the answer
of the jury thereto, which was really favourable rather than otherwise to the title of Davies.
The jury were asked to say whether Davies paid King the purchase money of the goods
purchased by him in order to enable King to prefer two of his creditors named Green and
Strouss in preference to his other creditors ? To which the jury answered " Yes," adding that
they so answered the question in the affirmative because they said Davies did not then know
that King had any other creditors. 1244 Davies v. McMillan. i894
Upon these answers the learned Chief Justice of British Columbia rendered judgment
against Davies in the interpleader issue in the County Court case, which judgment was
maintained by the Supreme Court of British Columbia acting as a Court of Appeal from
judgments rendered in the County Court. The learned Chief Justice, who also tried the
present action, and not, as I think, without reason, expressed a doubt of the correctness of his
former judgment, and being of opinion that the judgment rendered in the interpleader issue
was not a bar to the present action, rendered judgment for the plaintiff with $9,151 damages.
This judgment a majority of the Supreme Court of British Columbia has set aside and
rendered judgment for the defendant, upon the ground that the judgment in the interpleader
issue in the County Court is a conclusive bar to the present action.
The judgment in that interpleader issue, if it had been appealable to this Court, would
not, in my opinion, have been maintained. Not having been so appealable, the judgment of
the Supreme Court of British Columbia was conclusive in the matter of that issue, but for the
reasons already given it cannot operate as a bar to the present action. It was also suggested,
but scarcely argued, that by reason of the order made in the case of the Bank of British
Columbia v. King for the trial of the interpleader issue ordered in that case, the present action
cannot be maintained, but that order, rightly or wrongly, was rescinded by the Supreme
Court of British Columbia without any trial of the issue thereby ordered, and therefore the
order in the rescinding order that (notwithstanding that the interpleader issue between Davies
and the Bank never was tried) no action should be brought by Davies against the Sheriff in
respect of the seizure made by the Sheriff under the execution at the suit of the Bank v. King
was ultra vires, and that order can have no operation as a bar to the presint action.
It was in like manner suggested that the action of Turner <fc Beeton v. King in the County
Court was brought under the provisions of a Statute of the Legislature of British Columbia,
viz.: Ch. 7 of the Statutes of 1885, sec. 53, as amended by Statutes of 1887, ch. 9, which
enacted that by leave of the Court, upon affidavit, or other proof satisfactory to any
County Court Judge that a party about to be summoned was about to abscond or defraud any
of his creditors, a summons might be made returnable in such time from the service thereof as
such Judge might direct, and that such summons might also issue when the party has
absconded, and that whenever a summons should issue under the section that the suit should
be deemed and taken to be brought on behalf of all the creditors of the party summoned, and
that any execution, or process in the nature of an execution, should enure to the benefit of all
the creditors of the party so summoned, and that such and the like proceedings might be had
and taken thereon as upon a creditor's suit brought in the Supreme Court of British Columbia;
and it was further suggested that under the provisions of this Statute the interpleader issue in
the County Court and the judgment therein operated and enured ':to the benefit of all the
creditors of King and constituted a bar to the present action ; but what the Statute says is
that the suit in the County Court and any execution issued therein should so operate and
enure, not that an incidental proceeding at the suit of a stranger such as an interpleader issue,
or ordered to be tried in respect of a matter within the limited jurisdiction of the County
Court, should operate and enure to the benefit of all the creditors of the defendant in the
County Court case, so as to determine the title to the property claimed adversely to them to
an amount of thousands or of hundreds of thousands of dollars in excess of the jurisdiction of
the County Court.    The Statute is susceptible of no such construction.
Upon the whole, I am of opinion, for the reasons already given, that the appeal must be
allowed with costs, and that the judgment rendered in favour of the plaintiff by the learned
Chief Justice who tried the case must be restored with costs.
VICTORIA, B.C.:
Printeil by Richard Woi.kendkn, Printer to the Queen's Most Excellent Majesty.

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