1900. was, appointed temporary receiver of all the property, Statement. things in action and effects, real and personal, of the cor

peration, with the usual powers and duties enjoyed and exercised by receivers according to the practice of that Court and of the statutes in such cases made and provided; but before entering upon the office the receiver was to furnish certain security,which was given on the same 14th April. The order further provided that, upon the giving of the security, the receiver should take possession of and sequestrate the property, things in action and effects, real and personal, of the corporation, and take and hold all property held by or in possession of the corporation; that the receiver should forthwith proceed and recover, by process of law or otherwise, and subject to such directions as the Court might from time to time give in the premises, any sum or sums which might be due to the corporation if the person so indebted were not wholly insolvent; that all money of the corporation be immediately deposited by the receiver in a certain bank to his credit, but subject to the further order of the Court, and not to be delivered over by the bank except in pursuance of the order of the Court; that no application should be made to any Court, nor should any action of the Court be asked or suffered by the receiver, relative to or in any way connected with the duties of the receiver, or the funds or assets of the corporation or their transfer, sale or delivery, unless due notice of such application be first given to the AttorneyGeneral, as required by law; and that all creditors of the corporation be, and they thereby were, enjoined and restrained from bringing action or actions against the corporation for the recovery of a sum of money, and from taking any further proceedings in any action or actions theretofore commenced.

On the 5th May, 1898, in the same cause or matter, the Supreme Court of New York pronounced a judgment, by

1900.

which it was "adjudged and decreed" that the corporation be, and the same was thereby, dissolved, and its cor- Statement. porate rights, privileges and franchises forfeited; that the corporation, its trustees, directors, managers and other officers, servants and agents be, and each of them thereby was, enjoined and restrained from exercising the corporate powers of the corporation, or collecting or receiving debts due to it or its other assets; that Richardson be appointed permanent receiver of its property, etc., with authority, inter alia, to collect debts owing to the corporation; that the moneys of the corporation be deposited as before; that creditors be enjoined and restrained from proceeding against the corporation; and that, after payment of expenses, etc., the receiver make a distribution of the property of the corporation, under the direction of the Court, as prescribed by law.

Both of these actions were begun and the attaching orders were issued after the making of the order of the 14th April and before the final judgment dissolving the corporation.

The trial Judge was of opinion that the corporation had not assets in Manitoba, within the meaning of Rule 196, and that the Court had no jurisdiction to entertain the actions. He therefore dismissed same, and plaintiffs appealed to the Full Court.

W. E. Perdue for plaintiffs. The first action was commenced on 22nd April, 1898; an attaching order was issued and served the same day. The second action was commenced on 25th April; an attaching order was issued on 25th April and served on 26th April. Proceedings were taken in the State of New York to appoint a receiver and wind up the plaintiff company. An interim order was made on 14th April, 1898. It restrained defendant from collecting debts and appointed a receiver to collect A final decree was made on 5th May, 1898. The

same.

1900.

plaintiffs reside at Boston, Mass. Plaintiffs show there Argument. were assets of defendants in Manitoba sufficient to give jurisdiction to this Court. Attaching orders were put in and the person on whom they were served showed that he owed defendants about $7,000. "Assets" in Rule 196 (h) is a very wide term. It has been held to include good will" of business: Rolt v. Bulmer, W. N. 1878, p. 119; Reynolds v. Bullock, Id. 122. It also includes a trade mark: Hall v. Barrows, 4 D. J. & S. 150. The situs of the garnishees' debt is in Manitoba: Dicey on Conflict of Laws, 533, 711; In re Queensland Mercantile Co., [1891] 1 Ch. 536. The contract between plaintiffs and defendants was made at Boston. The replevin action in New York is no answer to the action here. A suit pending in a foreign country is no defence: Direct U. S. Cable Co. v. Dominion Telegraph Co., 8 A.R. 416; Scott v. Seymour, 1 H. & C. 234. The action of replevin in New York was commenced after this action. The evidence is not clear that the defendant company was formed exclusively under the law of New York. The evidence does not show the jurisdiction of the New York court to dissolve defendant company. There was no such dissolution as would preclude an action here. The receiver would be obliged to sue the garnishee here in the name of the company. The New York decree would not transfer land, and proceedings in respect of land must be in the company's name. The decree did not absolutely dissolve the company for all purposes. The company cannot set up its own dissolution, it appears here by counsel. The plaintiffs' proceedings in these actions were commenced while the company was in existence: Taylor v. Columbian Insurance Co., 96 Mass. 353; Folger v. Columbian Insurance Co., 99 Mass. 267. The Court should look at the proceedings in the New York court. It is alleged on information and belief only that certain circumstances existed. The petition was served on the company and no

1900.

appearance or defence was put in: Thompson on Corporations, vol. 5, §§ 6692-6704: Denike v. N.Y. Lime Co., Argument. 80 N.Y. 599. It should have been shown for the defence that the court in New York had jurisdiction to pronounce the decree. The proceeding was not equivalent to bankruptcy, nor even to our winding-up proceedings. There are great exceptions from equality of distribution. There is no modern case following the case of Sill v. Worswick, 1 H. Bl. 690: contra, there are Levasseur v. Mason, [1891] 2 Q. B. 73; Gibbs v. La Société Industrielle, 25 Q. B. D. 399; Ellis v. McHenry, L. R. 6 C. P. 228. The company's rights were not divested by the receiving orders: Gibbs v. La Société Industrielle was approved in New Zealand Loan Co. v. Morrison, [1898] A. C. 349; In re Doetsch, [1896] 2 Ch. 836. The receivership order was of no force outside the State of New York: Willitts v. Waite, 25 N. Y. 577. The receiving order effected no transfer of property, and could only affect property in New York. The plaintiffs' garnishing orders were issued and served before the final decree of the New York court was made and while the monies in the hands of the garnishee were still attachable.

A. Haggart, Q. C., for defendant. This Court has no jurisdiction to maintain the action. The bankruptcy abroad transfers to the representative of the creditors all property of the bankrupt here: Dicey on Domicile, 277, 280; Dicey on Conflict of Laws, 444; Robson on Bankruptcy, 487; Story on Conflict of Laws, §§403, 409; Solomons v. Ross, 1 H. Bl. 131, n; Jolliet v. Deponthieu, 1 H. Bl. 132; Re Blithman, 35 Beav. 219; Long v. Girdwood, 150 Pa. St. 415. As the company could not deal with the debt due by the garnishee, it could not be attached here: Hancock v. Smith, 41 Ch. D. 456; In re Gen. Horticultural Co., 32 Ch. D. 512; Bertrand v. Heaman, 11 M. R. 208; Campbell v. Gemmell, 6 M. R. 355;

1900. Stobart v. Axford, 9 M. R. 18; Badeley v. Consolidated Argument. Bank, 38 Ch. D. 238. A corporation differs from an individual. It is created by the laws of a State and may be put an end to by them. This defendant was a legal entity, created, continued in existence, and put an end to by the laws of New York. That State was its domicile. It had no greater powers away from its domicile. When it died at home its existence ceased abroad. Parties dealing with it away from its domicile are taken to have submitted themselves to the laws which created and controlled it at its home. The laws under which it was dissolved and wound up were practically a part of its charter. This is not an ordinary case of bankruptcy, and the cases cite l do not apply. They are cases of individuals, where under the bankrupt laws or insolvency the property was taken from the person and made a trust fund for the creditcrs, but the personal obligations remained until the debt was extinguished, but here extinction is incident to the bankruptcy. The cases show that this distinction is observed in the winding-up and dissolution of foreign corporations: Dicey on Conflict of Laws, 469; Can. Southern Ry. v. Gebhard, 109 U. S. R. 539; Amer. Nat. Bank v. Nat. Benefit Co. 70 Fed. R. 420; Relfe v. Rundle, 103 U. S. R. 222. This suit is abated. What is an action? Here there are not the elements necessary to constitute an action. Under the Queen's Bench Act, 1895, plaintiffs would have to revive: Rules 10-12. The Court must be informed in some way that there are proper parties before it. The commissions executed at the home of the defendants and where the transactions took place prove that the defendants are dead. And there has been no revivor. The averment in the statement of claim that the defendants are a corporation has been disproved. Any judgment given against them by this Court would be a nullity. And this is a proper matter of defence which may be urged under our statute: Nat. Bank v. Colby, 88