Page images
PDF
EPUB

1900.

As to effect of appointment of a receiver: Willcock v. Terrell, 3 Ex. D. 323. As to appointing receiver in trust Argument. cases: Bryant v. Bull, 10 Ch. D. 153; McNicholl v. Parnell, 35 W. R. 773; Mullane v. Ahern, 28 L. R. Ir. 105; Re McNulty, 31 L. R. Ir. 391. As to Rule 742. The question is whether it means "equitable execution" by debtor or against debtor. The latter is a reasonable advar ce of law-to give attachment where could have got receiver. Former would give a right to receiver against property which could not formerly be realized upon.

H. M. Howell, Q. C., in reply. Conditions as to proofs are conditions precedent to liability: Guerin v. Manchester Fire Assurance Co., 29 S. C. R. 141; Commercial Urion Assurance Co. v. Margeson, 29 S. C. R. 601. There is no debt or liability. There is not a conditional liability. As to "accruing due": McKindsey v. Armstrong, 10 A.R. 17: Hardy v. Fothergill, 13 A.C. 351. Rule 742 applies only to a receiver appointed to receive a debt by way of equitable execution. The variations are not made in the manner required by statute and the policies. must be understood to have only statutory conditions.

KILLAM, C. J.—By Rule 182 of The Queen's Bench Act, 1895, any corporation or partnership company, domestic or foreign, and whether its head office is within or without Manitoba, transacting any business in the Province through a branch or agency situated here, is declared to be, in respect of matters arising within the Province, within the jurisdiction of our Courts in all attaching or garnishing orders.

The onus was on the applicants to show that the garnishees were not within the jurisdiction under this rule, and it appears to me that they have failed to do so.

In the case of two of the companies the applicants have wholly failed to show that there was no attachable

1900. debt, obligation or liability from them or either of them to Judgment. the defendant. They have pointed. to a certain contract KILLAM,C.J. between one of these companies and the defendant and

seek really to have it declared that there was no attachable liability under that contract, but I know of no prac tice warranting such an order. It is a very common practice to set aside a garnishee attaching order when it is shown that there is nothing to attach, for then the order should not have been made. But otherwise declarations or decisions as to particular liabilities should be had, I think, when there is an attempt to enforce the order, or some controversy as to who should receive the payments, or some other proceeding as to those liabilities.

But as to the other company, the Phoenix Insurance Co., of Hartford, there is an affidavit of a party showing that he is the general agent of the company in Manitoba, and which is accepted by the plaintiffs' counsel as sufficiently showing that the only debt, obligation or liability owing, payable or accruing due from the company to the present defendant was under a certain policy of insurance issued by the company and in respect of a certain loss by fire.

The policy provided that, in consideration of the stipulations therein named and of a certain monetary premium, the company did insure this defendant for a certain term against all direct loss or damage by fire, to an amount not exceeding $1,000, to certain described goods, and the company thereby agreed to indemnify and make good to the assured all such direct loss or damage not exceeding the amount specified, etc. Incorporated in the policy were the statutory conditions given by the Act 51 Vic., c. 26 (M. 1888), with some variations not material to the present case. These conditions provided, inter alia, that proof of loss must be made by the assured or, in certain cases, by his agent. These proofs were to consist of a certain statutory declaration, a particular account of the

1900

loss, and, if required, some other evidence. The loss was not to be payable until thirty days after the completion Judgment. of the proofs of loss. And there was a condition that the KILLAM, C.J. company, instead of making payment, might repair, rebuild or replace within a reasonable time the property damaged or lost (the word "destroyed " being substituted for "lost" by a variation), giving notice of intention to do this within fifteen (changed by a variation to thirty) days after the receipt of the proof required.

The insured property was damaged or destroyed by fire before the making of the attaching order. The proofs of loss were not furnished until after the service of the order. The question is whether, under these circumstances, there was an attachable debt, obligation or liability of the company to this defendant.

By The Common Law Procedure Act, 1854, s. 51, "debts owing or accruing" could be attached. The decisions were that this applied only to liabilities which were strictly debts certainly payable either at once or at a future date. In Jones v. Thompson, E. B. & E. 63, Crompton, J., said that he had refused to make orders attaching rent before it was due or instalments of an annuity not yet due.

In Dresser v. Johns, 6 C. B. N. S. 429, it was held that moneys payable under a policy of marine insurance were not attachable until judgment recovered therefor, as the liability was unliquidated. And in Johnson v. Diamond, 11 Ex. 73, money payable under a bond of indemnity against costs was not considered attachable as not constituting a debt.

In Hall v. Pritchett, 3 Q.B.D. 215, it was held that, under the County Court rules authorizing the attachment of debts "due, owing or accruing," the salary payable quarterly to an officer was not attachable until he had completed the term of service entitling him to payment of an instalment.

1900.

Under The Judicature Act it was still "debts owing Judgment. or accruing" that could be attached, and the same interKILLAM.C.J. pretation was given to the expression, except that purely equitable debts were considered to be included: Chatterton v. Watney, 16 Ch. D. 378; Richardson v. Elmit, 2 Q. B. D. 9; Howell v. Metropolitan Dist. Ry. Co., 19 Ch. D. 508. In the latter case notice to treat for land had been given by a railway company and the amount to be paid had been fixed by verdict and judgment; but Chitty, J., held that the claim was not owing so as to be attachable until conveyance executed. He considered that the provisions of the rules, as to payment or execution being a discharge, were inapplicable to a conditional debt.

In Ontario, in The Central Bank v. Ellis, 20 A.R. 364, the Court of Appeal considered that unearned salary was not attachable, although the rules authorized the attachment of debts and claims which might be made available by equitable execution, as well as debts owing or accruing.

But in The Canada Cotton Co.v. Parmalee, 13 P.R. 308, the Common Pleas Division appears to have considered that a sum for which an insurance company was liable under a fire policy was attachable, though the amount had not been settled and ascertained, as being a claim that might be made available under equitable execution. The report does not show whether the conditions as to proofs and otherwise had been satisfied.

In the legislation of this Province the attachment of "debts, obligations and liabilities" was long since authorized: 38 Vic., c. 5, s. 42; C. S. M., c. 37, s. 44; 48 Vic., c. 17, s. 53; R. S. M., c. 64, s. 8.

In the Revised Statutes the language was "debts, obligations or liabilities due, owing, payable or accruing due." In the earlier Acts it seems to have been practically the same. In Gerrie v. Rutherford, 3 M. R. 291, an unliquidated claim against a railway company for personal injuries to a passenger was held to be attachable

1900.

under this legislation. In Shorey v. Baker, 1 M. R. 282, the question was raised whether a claim against an insur- Judgment. ance company under a fire policy was attachable before KILLAM, C.J. the proofs of loss were furnished, but the report does not show that it was decided.

Under The Queen's Bench Act, 1895, Rule 741 originally followed the language of the Ontario rule authorizing the attachment of "debts owing or accruing," as well as "claims and demands arising out of trust or contract, where such claims and demands could be made available under equitable execution.”

But in 1897, by 60 Vic., c. 4, this rule was repealed and two new ones substituted. The new Rule 741 authorized the attachment of "debts, obligations and liabilities owing, payable or accruing due." And the new Rule 742 gave in a way a definition of the words "debts, obligations and liabilities." They are not to comprise any obligation or liability not arising out of trust or contract, unless judgment has been recovered thereon. But they are to include, though not so as to restrict farther than as aforesaid the general sense of the words, "all claims and demands . . . where such claims and demands could be made available under equitable execution."

Now, while the words "obligations and liabilities" are very wide, it is clear from the nature and course of this legislation and from the accompanying provisions for working it out, that only a pecuniary liability can be attached. This consideration excludes any liability or obligation arising from a mere contractual relation under which the garnishee has bound himself to do any other act than the payment of money, unless and until he has made such a breach that a money demand has arisen against him.

[ocr errors]

And the words "debts, obligations and liabilities further limited by the words "owing, payable or accruing due."

« PreviousContinue »