^>,.<* Velure, X^., \ ,1 [ M \ •: : 3 32X 1 t53 r r% ' IN THE SUPREME COURT OF CANADA APPEAL nO|l THE SOPUME COUI(T OF THE JIOI(TH.WEST TERRiTOIllES. GEO. EMERSON AND J. H. ASHDOWN, (DEFENDANTS,) APPELLANTS. AND JAMES BANNERMAN, (Plaintiff,) Respondent. - I CASE. E. P. DAVIS, advocate for appellants. SMITH & WEST, advo«:ates for respondent. I 1890. printed by the- tribune power press. CALGARY, N. W. T. i'^V 1^^ '%'' •' W'^r- %: •V 4^: f 1 1 *-v ^ "^^ ^H'm -HH 1' '^•J*. ^i J ■i^'Hx, 'J:SS. jfy '2.^ 5" 1*' ■K' ..iTt^i -tJ?-}', V -f^ -i*'^ .- v:i %?^a A,*| ' " ■) u >.'- 6i^'\5^* ^ ^taiv '^v^ ^<' ' •> n£* '!rr,t-- ^if ' i/' i^' "I^C-i t-i?3!i,i^fc&..i.<.. ^•v*^ • 1 1 - >. i.i ■ '! I' V ! 4m IN THE SUPREME COURT OF CANADA APPEAL FROM TlfE SUPREME COUHT OF THE ^OHTH-WEST TERRITOI{IES. GEO. EMERSON and J. H. ASHDOVVN, (Defendants,) Appellants. — AND — JAMES BANNERMAN, (Plaintiff,) Respondent. CASE. E. P. DAVIS. advocate for appellants. SMITH & WEST, advocates for respondent. i8yo. PRINTED BY THE TRIBUNE POWER PRESS. CALGARY, N. \V. T. INDEX Title Page l'A(iIi. Interpleader Issue 2 Notes of Evidence '3 Exhibit "A" (Bill of S.ie) 3 Exhibit " B " (Xote) 6 Exhibit " C " (Account) 9 Judgment of Rouleau, J 9 Notice of Appeal to Rcgina lO Judgment of McGuire, J I .? Judgment of VVetmorc, J. '3 Notice of Appeal to Ottawa i; Order re Securit\' 20 20 199441 IN 11 IK SU I-KIMK COURT UV niK NORIII-WKST 1 KKKl I ORIKS. ioRTHl!l^NAl.HKKTAjri)I(IAl l>lSTRiri KKi \vi:r.N : Jami;s M.\nm.km\->< l'l;iiniiir AND 111 ,,,1- of Novcmbc, 1889 that the 1 Jur>'. ■rhoreforc lot the same be tried accord. n^dy. , ' ,,._, ,,. .,,. ,., . Xovemher. . SS. .y Mess..rs Smith . West, of the T... . Cal..arv. in the District of Alberta. Advocates for the IMa.ntdf. NO IKS OF KVH)KN( K. Mr. West for I'Ul. and Mr. McCarthy, Counsel. .Mr. Davis for Defendant. I.I.AIMII !• . I.AIMN IM'KK A iUI.I. ol sALK. ,. ., . , . It is inv si-nuilure at foot of Bill "f -^^ile, 24th A. C. Sparrow, being on Oath .state,-, : It .s m> .... . ^-:^'^:^:tr::rsScr^::=j:::^u.:^-ed.r .,.. He sci/C(.l llic sliuU of oal^ iiiciilioiicil in llic liill ot S.tlc. ll w;is an absolute IJill ol Sale aiul a * truthful (locuiiiciU. 'Ilicrc was nut a word .'■aitl about a rcpa\ mcnt to Mr. I^anncrman, the I'lff. Was not to ]jay an) interest on that monc). It was an actual purtliase and payment. Banner- man s,'a\e me a note at three montlis for $400.00, payable at my c>wn order. Discounted the note at I.t- [eune i\; .Smith's Hank'. (Jot the cash on it. Was indebted to Banncrman. Mrs. .Sparrow was. 1 believe the account was in Mrs. S])arro\\ 's name. It was $136.00. I'aid that account to l^annerman and s])cnt tlie balance. The stack of oats was mine. There was no a.L;n'cment that Banncrman was to pay me anytliinj^ back. T. B. I.affcrty did the conveyancinfj. liannernian saw l.affert_\', I was jjrcscnt. (The followini^ evidence taken under objection.) ^0 'I'old i.afferty 1 hail sold a stack of outs to Banncrman and to draw a Bill of Sale. The Bill of Sale was drawn accordinijly under instructions. Hatl to thresh it and deliver it to Baimerman. Had no interest in it \vhats()ever after the Bill of Sale. Banncrman was to i)a)- the note when it became due. We considereil tliat there w as \0X) bushels of oats in the stack, at 40 cents a bushel. Ihcre was no otlier agreement in it. Banncrman took liis chances about the locxi bus. of ^aain. Told Banncrman I wanted some money, that I wanteil to use it before I threshed the oats and that I w.iukl sell him the said stack of oats for 1000 bushels of oats. He knew the amw endorsed said note. Copy of .same nilowcd to be fyled. No ( ioss-)v\aniinalion. iw JaMHS Ban.\KKM.\N, recalled : The note i)roiluced is the iiulc 1 ga. c and wiiicli I signed. Had an ace. against A C. Sparrow and entered at page 32, in 1886, until November o( same 30 year, showing a balance of $7.17 still due. It was never paid. (Objccteil to as irrelevant.) Had an ace. against Harriet S])arrow which commences on folio 28, on 3rd January. 1887. There is a balance entered on folio 179, which was brought forward in Ledger B. The ace. in Ledger A, the account is entered in the name of Mrs. Sparrow. It k nwnences in Oct. 29th 1886. The balance was carried in Ledger B. The account in Ledger A was the last account charged against .\. ('. Sjiarrow. The amt. $i3''>.oo, was the sum due by Mrs. Sparrow at that time. \. Itlx : Ihe ailvance of $400.00 which the consideration for the Bill of Sale was made under the condition that the $136.00 should be paid. 40 'I'his closes the I'lti 's case. The Defendant declares he has no evidence to adduce. LXHlUir -A. of our Lord c'.nc thousand ci,ht hundred and ei.htv n.ne, , - < .. of tl,c lJi«trict of Alberta, in the Northwest Territor.es of Bktween Animus ( . Sparrow . of the Ui. Canada, Famier. of the first part. • ,ur. -,;,! District of Alberta. Merchant, AND James Bannerman. of the Town of Calgary, n, the .aul D.str.ct c>f the second part. • 1 'r f the Personal Property hereinafter W,n:.<.:AS .l,c sai.l party of the ^'f l'»" '^ r^;^!"^ ,„„ed with the .«>id party o( the ^(•t»if> s^id Agreement, and in so. .,.,s iNMKNTtKU ^^•' '•'■■'^^^? "^^ ' H^ m^oy of C Had,, paid by the ,aid ...sidcratio,, of the s,„n of four hundred doiar. oi^ a» fu mo„o,^^^^^^ ^^^ ^^^.^^^ ,,a„v of the »co„,l part K. the sa,d l»rty of ''>' "' ' 3'^j„,j), ,„, the said party of the first LftlK... .■re.e„t,, (the '^'^ -^'^"['l^^^fZ^U and by these Presents „OTU :::^::a:::::i:^' :x;^::;::-- s^d .rty of the se^nd part, .. .^.c... adniinislralors and assii^ns - n • tint is to say : C)ne stack X,,, -.nosK, the^aid Personal l'ro,K.ty Jf*;Vb„!°hr-id'stael< being , tow situate,! „f oats in the straw and eon.ainin« ^^^\^::^^:^to„,. Ran«e one, .est of the 5th ..„, he south «es. ..uarter of ^ec ;on 0^^^^^^ ^„^; ,„„ ,„„„ „„p of oats taUen o„ prinJpal meridian, m said Uistmi said C^iiaitcT Section. ■ .1 u th.- Slid ttats and deliver the the same, and ever>- part thereof : f. in.l 4'verv of them and •ro H.V,.: .., .u „o,.„ the s ^^"':^Z:-^^^'^^^^^ "' *= »^>' ""'^ ,„ every part. hereof,, itl- the "W'- '"»"";■ '•',-^' „ J ^nd to the use of the said party of the 20 ccutors and adiniiiistiaU)rs, in iiianncr follow in-^, that is lu say : TllAl luj, liic said ynvly ol the first part, is now rightful!}- and absolutely possesseti of and entitled to the said hereby assif^iied property and e\ er_\- of them, and cvcr\- part thereof : And that tlie saiii partv of tlie first part, now has in himself yooti right to assign tiie same imto the said part}- of the second part, his executors, administrators and assigns, in manner aforesaid, and according to the true intent and meaning of these Presents : Anij that the said party hereto, of the second part, his executors, administrators and assigns, shall and ma\- from time to time, and at all times herr.after. peaceably and quietly have, IkjUI, possess and enjoy the said hereby assigned propert)' and exerj" of them, and every part thereof, to and for his own use 10 and benefit, without any manner of hindrance, interruption, molestation, claim or demand what- soever of, from or by him, the said party of the first part, or any person or persons whomsoever; And that free and clear, and freely and absoIuteU" released and discharged, or otherwise, at the cost of the said partj' of the first part, effectually indemnified from and against all former and other bargains, sales, gifts, grants, titles, charges and incumbrances whatsoever : And. moreover, that lie, the said party of the first pari, and all persons rightfully claiming, or to claim an)- estate, right, title or interest of, in. or to the said hereby assigned propertj- and every of them, and e\er\- part thereof, shall and will from time to time, and at all times hereafter, upon ever}' reasonable request of the said party of the second part, his executors, administrators or assigns, but at the cost and charges of the said party of the second part, make, do and execute, 20 or cause or procure to be made, done and executed, all such further acts, deeds and assurances for the more effectuall)- assigning and assurinj^ the said hereby assigned property unto the saiti party of the second part, his executors, administrators and assigns, in manner aforesaid, and according to the true intent and rneaning of these Presents, as by the said party of the second part, his executors, administrators or assigns, or his counsel shall be reasonably advised or required. In Witness Whekkof, the said parties to these Presents have hereunto set their hands aud seals, the day and year first above written. SIGNED, SEALED AND DELIVERED IN TIIK I'KKsKNCi: fi 30 [.Sd.J .M Ni.oi.i.; [Sd.] A. C. Sl>.\RRO\v. BKi»I.. J lUl er, or itc, CCS aiil iiid ond \ or inds KAul f tin- lown i)t Calti'U). hundred dollars and net for ^.^^ 1^" ^ ,j^^^,, ^f the said barsa.nor. ^..ods mentioned thcreui a^^a.n.t the cred.t 10 SWORN before .ue at Calu'ar)- "> ihe Distriet of Alberta, this 24th da>- of September, A. !)• '^^^ .\ Comniissioner. [Sgd.l JAMI'^^ HANNEKMAN. CANADA NOKTH-WKST TEKKnOKlES I ic) \vn , Michac, Nico.1. of the Town of Cnlgary, m U„ Distnc, of Albca, G^ntlcnan. make oa.h and say '■ , h . XnLHis C Sparrow, o.ie of the parties the u , _ ^^^ subscribed as a r:is-: s„"^:o *o i,. -- -r „:x..^ "^e .. ae,.o„c„f ., a„a « 20 at Calgary, n\ SWOKN before me the Distriet of Alberta, this 24th aay <.f September, in the year oi our Lord 1SS9. [SgA.\ M- ^iCOLU •-^^'•> ■'" 'It- ;::;i;oner^rtaUin, Affidavits. in ith ilcd am IS a that KX 11115 11' ••»■■ 1 > 7 3 o r.M.CAKV, Sept. 24th. 1««9 *'*''° . »^ n-,v to the order of A. C. Sparrow. Three months after da^ I Fom.se UJ^^o^^ Four hundred 11 Dollars Value Received. , at the Bank of Lc Jeune, Smith & T, N. C. [S^d.] JANU^S HANNKKMAN. 10 I'ay Ix Jeune, Smith & <-'.. order [Sgd.J A. C. Sparrow. EXHllUT •'('." Calgary. Alberta. March 0th. .Syo. 20 MRS. A. C Sl-AKKOW. , ^ ,s NK K M .\ N. Uouuin OK jAMi-^ ^'^ Wholesale ar.d Retail Dealer u. Terms Strictly Cash. i88y. June 1 l"o I5al. on act. 1 ••2 lbs. carrots I-'olio 133. 30 I 6 July 2 12 •• 13 " 26 Aug. 17 " 17 " 20 " 24 " 24 •• 30 ,4 lbs. H. Hacon 1 Sack Hungarian 1 ilo do Oatmeal ■ • • i^ Sack Hungarian I 270 lbs. Shorts . . 2 Sacks . ■ ■ • 1 Sack Hungarian 100 lbs. Chopfeed I Sack . i;5 lbs. Chopfeed $ 17S 20 120 2 40 iS 2 50 3 ^0 3 75 I 00 I yo 3 75 12 4 05 10 20 365 2 2 00 10 2 3 50 IW, . I 33- 10 10 " .1" ■• 2 S:u k^ ■ • ■ • •• 14 " 14 ;; Clic'iuic . . ■• 1 Siick lUmnariaii Flour •• _>73 lbs. Shorts '■ 14 ■' 4 4 •• 2 SiicUs ■ • ■ Clicque to retire Note . Dis. on Notes .... " :J4 " Note ;, nios. J uno 1 By Note ;, inos. ■ ■ ■• Sci)t. 4 " 4 ■• (It) ■ • • Cheiiiic • ■• • •' 34 Sept. _'4 Kill 00 $ 73(> 00 20 30 JlDlj.Ml'.N 1. .'"■'''■ 1 ...... inst A C Sparrow, the Judgment Under and by virtue of several --^^Vthc^WliS^ Alberta Judicial District seized, ^-:':rtr=tt;:;:a^^^^^^ ;;:■ ;;^l:;e;:n:i by vn-tue or -erta. UiH .. S..^ U. saKl A. ^^^^^^^P^^ ^ ^ ^,^ , ^^ JucUhc .Mth.n.y »f Sq.tombci. .8S9 '"';.; ,fs„.^, ,889, and a.i interpleader "Ue ::';,. ,h; 'cur. »Mcl>«.-.™.» ;;;*;^ 1' J,,! ,.»;.;«,, W- w,„c„ ,„.erpleader «™e ,,„ trial ,.urs>,a„. t„ tl.e saal orje, ";•» J'/^'; » „,„ ,„,,, Ccors-e Eurcrson »"'' 3- H- A* ,h„ sai.1 James l.an„er,„a„ "-,■"- ^.';^*,„ ,,,„,. „, >vi. :-.l.a. .l.e sa.d stack of ^ram , '"■"■' ---rT/^rl^idPcs -;;:™.n as"a.:i,.st tlte said Geor«e K,„ers„„ a„d ,. A. . . , ' t ,. .,lil.h the IMaintifi claniis „ „„„„.„... U. tlte Uere„da„.s tltat .Ik ,«1U,1 .» e ->;• ;;;;;," 1„, ,,, , .He r^,r:i::t:.:;::ds-tl.c;ed s-..erer.sed. ordinance So. S. ^^ ,.„ 0,e --- -— t "^ ■' "h^ I?:::^;.;:;^';.::^ -I-O^j^ precedents. . , ,..,... cited lns„„„.,r,,.r.l.c..clendan,s-c.„«cnt Is tl», ,.M,„,n. s. The prnicipal case citcd ni . "i i II 10 |{i)\d cl al, I J U. C. C. 1'. 334. A j,M-cat stress lias bcL-ii placed on the <)])ini()n (A t'liicf Justice Draper, in liis Jud^'mciit, that the affidavit of tlie bar^rainee does not state that the sale is bona fide and for fTood ccjiisidcration, but that the " Hill of Sale was excvuteil in [;ood faith and for go(xl consideraticjii." It seems to me that the Jud^iient would ha\e been different, it the afli- da\it had contained onh' the followinij uonls " that the sale is in i;ooil faith ami for i;oo(l con- sideration," instead of saving that the Hill of Sale was executed in good faith and for gooti con- :.ideration. The learned Judge considered the words used in the affithu it a departure froin thos< words in the Statute, which are the ver\- substance of the affidax it. The same principal was followed in Houlton vs. .Smith, 17 U. ('. Q. H. 400: Harding \s. Kiiowlson, 1; l'. ('. O. H. 564 ; Olmstead vs. Smith, 15 U. C". O. H. 421 ; Scjuairvs. l'"ortuiie, iS L'. C. (J. H. 547. Hi:t I think the cases which have the, most analogv with this present case are those ot Fraser vs. Hk., of Toronto, ly L'. C". R. 385. " Creiiitors " was held sufticient without adding " or either of them," on the maximum that " omne magiuis continet in se minus." In Taylor v.s. Anslie, 19 C. P. 84, it was decided that the words '• creditors of the said Mortgagors" include the creditors " of any or either of them," on the same maximum tint "omne magnus continet in se minus." Are the words used in this af(ida\ it suffKient in substance lo meet the tact that they include the enactment of the Ordinance, to wit : Sect. 5 of Chap 47, of the Re\ isetl Ordinance. In other wonls, do the words " the creditors " incliKle the words "am- creditors" or "either ot them." 20 Hasing m\sell on the ma.ximum which 1 have alreail\ c|uoled and on the case oi ''"arliiiger ,s. McDonald, 45 U. C. Q. H. -U I cannot come to an\- otlu'r conclusion than that the affi- da\it is sufficient and that the obji:ction is not well take n. The second objection taken by the DefeiulaiUs is that there is ik^ Hill ol Sale pro\en at all and consequently the I'laintilf has not established his claim to the property in question. I am of opinit)n that untler our Ordinance no attesting witness is re(|uireil to pr(j\e a Hill of Sale, it onl) sa>'s that such ccjinevance sl\all be accoiunanieil b\- an affidavit of a witness thereto of the due execution thereof and an afl'iilav it of the barginee, etc. i'.esides it is an instrument ujuler seal and the signatures of the parties thcmsehe II ow I an I h: i\e anv < loub P lo th js are su 0111 to bv the mse Ives before this Court. e due exi'cution o th 30 The thiiil ar.d lasi objection is that the Hill of .Sale, rww if pro\cn, is \oiil as against the Defendants, under C'hapter 49 of the Re\ i.^ed Ordiii Ordinances giws a ver\- important exception to the ; es. .Stvt. J ofC'hap. 49of the Revised jcner.il rule as pro viiled b\ .Sect, i of the same C'haptt I tl mil' this ca>e comes fider the exception. There was a bona tide sale of Is and pa\-ment made of the same the I'laintilf The I'laintit'f at the tinu' w as not ere litor of .\. C". .Sparrf^w, except for a small amount of about $7.(.k), w hii h .\. ('. ,Si)anow still owes him. I'lie credit, since 1 8S6, was gi\en to Mis. .Sparrow, and the account was charged to liei'. 1 am of oiiinion, besides, tliat H.mnerman was in good taith when he bought the slack of grain from .\. C". .Sparrow, and did not do so lo enable .Sparrow to dcliaud his creditors. .\nd Han- 12 cjW ace. unt ..t $7.00 which he h.ul .^ui char^iiv.' Spain.NV wllh his fal54ii.y. ijlh l-"cb.. iS'A .•CHAS. n. KOl'l-KAU: ^ NOril U 01^ Al'l'KAl- , ,^„„,cl, w the lcarncJJ"JK<^ »'""''"'"' ■ ,: .,,„„ ,hc .M J.M«,„e„t i. c,.,„v»,, ;;■ •™;;;; ;;,: ,.„,, ,. ,,,.,1,.. O. Derc„,.an,. ,Mulcr Chapter 47 ^'' ^h.. WcM>cu ^ ^^ ^^^^^ ■1 uiilntSalc was voul, as a^aui-^i u. ]UMscaC)nhna.KC-,Ml tl,c No. th-W cM , , . nuich =>s Ihc lcarr>ed Jud|;c shuukl luuu ^. ■nuU.hcsaKlJua.n>c„Mscon...y U. --'-; ,^^^^ ;,,,,,,c there was no evidence ■ 1 (■ t it its next session, to be ,.,K.aa.r*..-.v..h.s-..u,>-...M.ch,A.i.,.*^.. K, I'. Davis, Dcfts'. Alive. lo Mi;ssKs. SMllH & VVl.ST. I'llT's Adves. ve ts, the IKC ) be crsc 13 JlJDGMKXr OF MctiUIKr., J. Kmkkson et al. iJefeiulaiils i Appcllaiilsi, AM> BaNNKKMAN, I'lailUiff ( l. This is an appeal from a Judgment of Rouleau, J., in an interpleader action tried by him without a Jury. One Angus C. Sparrow had, prior to some time in 1886. been in some business in Calgarj-, and becoming financially involved and unable to paj' his debts in full, lie. in or about that year, gave up his business, the nature of which does not appear. He had been a customer of the 10 Respondent, who was a merchant at Calgary, but on Sparrow " giving up his business in town " the Respondent, who says he heard that Mrs. Sparrow was now carrying on the business, decided that he would make a " change," and, thereafter, gave credit, not to Angus C. Sparrow but to Mrs. Sparrow, his wife. This credit was for goods got sometimes by Angus C. Sparrow, sometimes by Mrs. Sparrow and sometimes by " Mooney," whether a servant or not does not appear. On 24th September, 1889, the account of Bannerman against Mrs. Sparrow as appeared from his books, amounted to $136. On that day A. C. Sparrow called at Bannerman's store and asked him to " advance " him $300 on a stack of oat.s. This Bannerman refused to do unless he would Way the account of Mrs. Sparrow. He said " he required that amount " ($300), and that if Bannerman would advance $400 he would pay the ^136, Mrs. Sparrow's account. 20 Bannerman agreed to this, gave his note for $400 and took a Bill of Sale of the stack of oats, which was duly registered. Subsequent to this the stack of oats was seized by the Sheriff under executions in favor of the Appellants, respectively. The interpleader issue was to try the right of Bannerman to the stack under the Bill of Sale. Ihe Ai)pcllanls raiscti their objections to that instrument. 1. That it was void under Revised Ordinances, (.haj). 47, Sec. 5, Ixjcause the affidavit of bona fides used the words "creditors" instead of " any creditors," as employed in Sec. 5. 2. Ihat the Bill of Sale was not proven bccavi.se there \s as a subscribing witness who was not called or his absence accounted for, ami that the only evidence of it was taken subject to objection. 30 3. Thai it wa:; \oid iiiuler Chap. 4<;. R. < ). l'l»e learned Judge found against the .Appellants on all tliese points I'hey now appeal on the same grounds. As to the first objection I agree with the trial Judge that the words " the creditors" being used instead of " anj- creditVias." is not fatal. It was strongly urged that the Legislature, in altering the words " the creilitors " (used in the Ordinances of 1881) to "any creditors," e\ idenced an intention to change the int'nnint;; of the sentence as well as its ))hrasi - I4 i)l(>j4\ , iiiul lliiil \\\: imiu, llieicforc, lake ii tliai. iii the view uf tlic Lc^'islalurc, tlicrc is a iiialeriiil tlitTeii;iicc between the mcanini( of the two wonts "any " arnl "the," as used here. But, as laid (low II In- llageit)', C J., in Mulsons Hank \>. Halter, i6. Out. App. Repts., " It is a well known prineipal in eonstruin^r statutes not tu ini|iuti- tothc Legislature the intention of altering exist- in;4 laws unless the lan;^aiat;(: usfd adniii* ^if no other reasonable interpretatioti." I submit, moreover, that a chan^'e in the lanj^ii^e isoni}' prinui facie evidence of such intent, and that this ma>' he rebuttttd b\- \ari( that even if we were of opinion that there is some substantial and material difference, are \vc to set up our opinion in opposition to the manifest intention of the Legisla' uc ? If they say that " the creditors " means " any creditors," are we to sa>- it does not ? te>- .say that " the cretlilcirs " is sufficient, arc we to say it is not ? The Legislature has not sc fit to prescribe a " fonn " of such affidavit but only describes what the aflida\it shall assert. I J. , it given a certain form of words to be employed, the argument that no departure from the exact w(jrd> is |x;nni-s;ible would be stronger, but even then the Lcgisla- tiMC has taken the i>recaution to provide that " slight deviations therefrom, not affecting the sub- stance or calculatetl to mislead, sha'l not vitiate them " f Interpretation Ord., .S. 8, sub-.S. 32). ^ , Hut is there, apart fn>m the argument that the Legislature has treated tin expressions as synonymous, any ground for h . that if language other than that prescribed is used the '5 person usiny it does so :it his peril, and that it is not so much a question as to the extent of the departure from the prescribed ianguaf^e as a question whether it ojjcns the door to a deponent being therebj' enabled to take such affidavit under a state of facts which would prevent him from taking it if the prescribed language had been used ; that it is not a cjucstion would he not have taken the affidavit in either form ? but, " is it noi poisib/c that he might not have done so ?' It was argued that " the creditors " means "all the creditors," and that a deponent not over scrupulous but anxious only to avoid a prosecution for perjury- -might so construe it, ami if he knew the intention was to defraud only sotiic and not a// the creditor^, might swear to an affi- davit containing "the creditors," when he would not do soif '• any creditors " had been used It 10 the answer " )cs," to this question, would be fatal to tiic affidavit, then Mason vs. Thomas, 2.5, U. C. R. 307, was wrongly decided. There the Statue required that the deponent should swear that the instrument was not intended to enable him to hold "the goods mentioned therein, &i..' but the affidavit, instead of " goods," used the words " estate and effects." How this expression includes more than "goods," — Drai)cr, C. J., in giving judgment, said "I'he words used arc the most comprehensive, and when realty and debts and choses in action are assigned as well .xs goods and chattels, they seem to us to comply with and fulfill the objects of the Legislature." Now. as as it would seem, this instrument in that case assigneil really, debts and choses as well as goods. It might be argued that a deponent, knowing that the intention was to jjnjtect only the " goods," could not have taken an affidavit denying an intention to protect •" goods," but he might have 20 fclt able to deny an intention to protect the " estate and effects," i. e., lands, debts and cho.ses in action, and goods, all taken together, since, by hypothesis, the fraudulent intent exi.sted only as to the goods; so that by departing from the language of this Statute he enabled himself to make an affidavit which he would not otherwise have dared to make. This is llie line of argument taken iiere. It is said " the creditors " means or maj- mean " ail the creditors," anil when the intent was to defraud onl_\- soiiir, a barginee might stretch his conscience enough to deiu an intent to defraud "////the creditors." As I ha\(; said, the same reasoning apjilied in Mason \s. Thomas, would, if adopted, have brought about an opposite decision. I am not prepared, how- ever, to say that Mason vs Thomas was wrongly decided. In Farlingcr \s. McDonald, 45 L'. C. Q. B. 238, the affidavit u.sed the words •' him, * * the said mortgagor," instead of" them, 30 * * * the said mortgagors. A hypercrite might contend that the deponent might possibly have a secret reservation in his mind enabling him to swear that tiic intent was not to defraud the creditors of " him, • * the said mortgagor," whereas, he might not have been willing to say the same as to the " creditors of them, * • * the said mortgagors." Manifestly, " the creditors of A " may be persons quite different from the creditors of A and B." But will it be said that this case, too, was wrongly decided ? In Fra.scr vs. The Bank of Toronto, 19 U. C. R. 381, it was concluded that the Legislature might have thought that the words " the creditors of the said mortgagors " would include the creditors of any or either of them. In Mathers vs. L>neh, 28 U. C. R. 363, the words the " liability of the mortgagor," were u.sed instead of "for the mortgagor." Taken strictly, the former jjhrase meant the liability, not of the deponent for 4o the mortgagor but the liability of another man, viz., the mortgagor himself Was there not then ». possibility of a ilishonest dejionent pervaricating? Yet here, Wilson, J., said "The desire, no doubt, is to sustain the mortgage if it can be reasonably done, but this cannot be done * * in case there shouid be an irreconciliable and material difference between the two expres- sions, we think this ei]uivalent language ma\ be leceixed instead of the plainer language of the Statute. l„vcT of Haa.n ^ H.r ca ^.mis^inU llUlti'li.l! 10 jl„. j„,\s(--i- i>t bi 111,, . , ,:;;'-'■ ^ -"-"■■" ■"■■■ 20 A >.=">■ -^'-^ ' '^ . u.stc fov such subvleties. I ,.. ,ot think wo sh..v.Ul .uoKl ^^ ^^^^^^^^^^ ^^^^^.^. ,.,,,, .„ As to the third ,vou,ul .1 ■ P - .,,. rhcrc wa. c >d.n ^^ ^^^ ^^^^ ^,^,, l,,,,.n.an was not a cr^UM "^ ^ .^^^^.^ ,,,.,e that^^c ha^^^^^^,^ .^s mentioned ' sonabU come to that conclus^a I ^^^^^^^^^ .,,.^, ,, naunc of t . ^^^.^ ^.^^^ ,„ :.., .na his books su^nxnteah^nt ^^^^^ ^^^^^ ^^^ ^^^^^^^ ^^^^ Iv the support of hu.- i, ,,, .ccounts ana the ;- J^^ ^^^ ,,,, ,,,,e principally ->! l^^J^.,,, had. in effect sa.d : X (• Sparrow to pay i-o. them sm ^^. ,,,,„, „,encement of the ace j, .^^ryinu "• iu and his family,- -but ----;; ., ,,,„,ess, I understand M-J^ ^^ ^^^^^^^ ,. ,,.,;. cd on the evidence, at the conclusion they did come i J, divisible mto :;;;faJurymi.htra.Vh-comtoU^^^ ^^V ^ S:^:X'--^^-^<- n<,t ordinarily '--■''^V V trmsactions between t^ ^,„a ,, creditor (o. uvo P-ts,-the first ^oahn, w . h.-- ^^^^^^^^^^,..,,, be,...n ^ - ;^,,.,,^ ., .-hich l^as the ,., defeat. &c.. creditors he scxo ^^^^ ,, , ,,e, r ^^^ ^^^ ^^^^ ^,^^,_ part of Uannerman. s,, that Ill cs he lOt jar- ncd y ill nim- aicl : n "" \. c. cpar- \ibcr- l have cc tn> a\ will e into intent Lor (fJi' Was the App- lot con- on the 1,1 part 17 applies oiil) to Ininsactions between the debtor and oiu' oi iiioie (rcditnis, and as HaniKiiMaii has been found not to have been a creditor, then tlie second part does no appi>' to inni. I lie learned Jud^'e lias furtlier found as a fact, that the sale was bona fulc ami made in the ordinary cJHirse of trade or callinj;. to an innocent purchaser. There was evidence on which he niiLjht sn find. I'he appeal will be ilisniissed with costs, to be paid In the Appellant to the Respondent. jrntiMi'A I ()!• w i: iwiokK, j. I a^ree that there was evidence in this case which uonid u an ant the trial J inline in Inuliiit^ that Hannerman was not a creditor of A. ('. Sparrow, and I ha\e nothing' to adil to the Jud^f- 10 incnt of in_\- brother McGuire. as respects that point. 20 It was concctled b)- the learned counsel for the Api)e!!aiil that it was necessarv tor him, in order to establish that the Hill of Sale was void as ajrainsi the 1 defendants, under Chapter 49 of the Revised Ordinances, to prove that Hannerman was a creilitoi of A. ('. S|)arrow. As to the l)()int that the Bill of Sale was not dul)' prosed, because the subscribint; witness to it was not called, I have alwaj s understood the terms "attesting.; witness" and " subsLribinj; witness" to be synonymous, as Burns, J., in Armstrong vs. Ausmaii, 1 1 I,'. C. K. 505, slates them to be. The document in question in that case was a chattel mortija^e. The lanj^ua^e of the Ontario Act requiring the convejance to be accompanied b_\- an affidavit " of a witness thereto," is the same as the lanyuaye of our Ordinance. In that case there was no subscribing witness to the niort- L^a^e. The majority of the Court held that it was not neces.sar)- that tin: jicrson maUin^f tlu' affidavit should be a subscribing witness ; it would be sutricient if it were matle bv a ])ersoii who witnessed the e.vocution, althoui^h he diil not subscribe to it. If that is j^ckx! i.sw, attest- ation is not requisite to the validit)' of a Hill (jf Sale e.vecuted uiuler the ()rdin;ii!i c, ui d, tnere- fore, it was not necessar) to cai. the subscribing.; w itness to ])ro\e the Hill of .S.ile hi duestioii in this case ; it could be proved aliunuile. I think U) laj- down a rule contraiv l'. this decision woulil, in many cases, be creative of great difficulty and incoiueiiience in pi o\ iiu' instruments of this nature, and I am, therefore, prepared to follow that ca.-c. I ha\e great doubts, however, as to the v aliditv of the affidax it of /'-'Wrr //r/(.v. made by the I'laintiff This question turns upon the language of Section 5 of (li.ipier 47 of the Re\ i.sed 30 Ordinances, which provides that the coiueyance shall be accoiripanieil b) •• an affidavit of the "bargainee « • • that the sale is « * * n V. ('. ( '. I'. 7S, docs not. to niv mmd, bear om that proposition We nnist bear in nnnd v. hat the Courts ni th(jsc la.sesh.ul before them ; the affidavits then in |)raclice ft)llowed the words of the .\ct, a id in view of that fact thev- held that the Lei^islature ( not the ('oiirt) iissnined \\\A\ the m.ixim ui iild. under the circumst;mces. be ajjplied in cases arising under that Act. included " any." 19 They did not pretend to lay ilovvn the general rule that the word "the" However, with all this, there is the fact that this same Chapter 47, of the Revised Ordin- ances, in Sections 3 and 4, providing for cases of mortgages of chattels, and that it is provided therein that an affidavit shall be made by the mortgagee negativing the fact tha". the sale is made to hold the goods against creditors, and in both sections the words " the creditors " are used. If the change from " the " to " any " was made in Section 5 of Ordinance No. 7, of 1887, with the deliberate intention of narrowing the chances for perpetrating frauds, it is difficult to understand why the change should not have been made in Sections 3 and 4. Sections corre- IQ spending to 3 and 4 were in Ordinance No. 5, of 1881, and were carried forward to No. 7, of 1887. without any change in this respect. The bare fact that the latter Statute uses language varying from that of a former Statute on the same subject, may not always indicate a change of intention on the part of the Legislature. See cases collected by Maxwell on Statutes {2nd cd.j p. 391. I have ins|>ccted the cases there cited and they bear out the doctrine thc>' were cited in support of I must confess, how- ever, that in all these cases something appears to have been omitted ni the later Statute which was in the older enactment, and it seems to have been held that the prior enactments w oulil have been open to the same construction, if the words in cjuestioii had been omincd. 1 cannot fimi a case just like this, where the language of the t)liler enactment was struck 20 out and something else substituted. However, in view of the facts that " the creditors " were the words used in the ( )rilinaiu e of 1881. both in the Sections relating to mortgages and the one relating to absolute assigiunents, that the same words are carried forward in the Ordinance of 1887, and in the Reviscil Ordin- ances so far as mortgages are concerned, that those are the words used in similar enactments in other Provinces of Canada — at any rate in Ontario and Manitoba, and especially in view of the fact that my learned brethren have unanimously arrived at the conclusion that there was no intention on the part of the Legislature to make a change, I have, with very great hesitation, arrived at the conclusion that the reason why the change was made in Section 5 of Ordinance No. 7, of 1887, was that the person who copied this Ordinance committed a clerical error which 30 was not detected and it has been since carried forward without being detected, and the Legis- lature, therefore, had no intention to make any change. 1 think I can fmd authoritj for arriving at this conclusion, in the remarks of C. J. Kelly at the end of his judgment in The Queen vs. kuttle, L. R. 1. ('. C. R. 251. 1, therefore, but as stated before, with \cry great hesitation, concur that the appeal should be dismissed 30 IN THE SUPREME COU JRT OF THE NORTHWEST TERRITORIES. UETWEEN : jAMiiS BaNXICRMAN. Plaintiff (Rcspoiient). \NH GKOKOK EMKKSON and Jamks H. Ash>,OWN, Defendants (Appellants). „„l I, .. H Ashdown, the above namc-.: was dismissed. lo Mr.ssKS. SMiiii & Wkst, Aches for IM ff. i:. V Davis. Deft's Adve. ,N TM..: SU>M GUOKUK EMP,KSON a,ul Jam.s U, As.uxnvN, Defendant, (..X,,.Uan.»> Defendants have °-,"=*4;f:, J^.^.h" said appeal be staved, that all proceedings other than leiaun^ DATED this 25th day of July. A. D. 1890- |Sn,i I Ch.xs. B. Rori.KAi:, ^ J. S. C. the the rity