REPORTS OF CASES

DECIDED IN

The Court of Queen's Bench for Manitoba.

CLOUTIER V. GEORGESON.

Before KILLAM, C.J., DUBUC and BAIN, JJ.

Exemptions-Assignment for creditors-Selection of exemptions by assignee when assignor neglects to make choice Assignments Act, R.S.M., c. 7, s. 3-Executions Act, R.S.M., c. 53, s. 43.

When a debtor merchant makes an assignment in the form prescribed by the Assignments Act, R. S. M., c. 7, of all his stockin-trade and personal property, etc., liable to seizure under execution to a trustee for creditors, the assignee has a right to select such articles as would be exempt under The Executions Act, R. S. M., c. 53, s. 43, in the absence of a selection by the debtor; and, if he appropriates and sells only a portion of the property coming under the head of any class of the statutory exemptions and leaves to the debtor a sufficient quantity of the same kind of property to reach the prescribed value, he will not be liable to an action for the value or the proceeds of the portion sold.

ARGUED 12th February, 1900.

DECIDED: 10th March, 1900.

THE plaintiff carried on business in Winnipeg as a re Statement. tail dealer in clothing, boots and shoes, etc. He occupied a shop as tenant. He made an assignment to the defendant in trust for the benefit of his creditors generally. This assignment purported to transfer all the plaintiff's real estate to the extent to which the same might be seized or sold under execution or registered certificate of judg

1900. ment, and all his goods, wares, merchandise, stock in Statement. trade and shop fixtures, and all his other personal estate and effects to the extent only to which the same might be made liable under an execution or judgment. This instrument conferred on the assignee an express power of sale. With the consent and assistance of the plaintiff. the defendant entered upon the premises and made an inventory and valuation of the stock in trade and other goods found there. In that inventory were included, with the knowledge and consent of the plaintiff, a quantity of shelving, drawers and counters, valued at about $700; a staircase, valued at $100, and some small machines for fixing or repairing boots or shoes, a safe, and some tables, chairs, showcases and other shop furniture, valued at $510.10, which the plaintiff claimed to have been necessaries used by him in his business.

The defendant put up for sale by auction all the goods shown in the inventory, and they were knocked down at 60c. on the dollar of the valuations. After this had been done, but before the sale had been completed, the plaintiff's solicitors notified the defendant, in writing, that the plaintiff claimed the "fixtures" in the shop as not being liable to execution. About the same time the landlord claimed the shelving, drawers and counters. In closing the sale, these articles and the staircase were excluded, but the sale of the remaining property was carried out and the proceeds were received by the defendant, who ap peared to have left the shelving, drawers, counters and staircase upon the premises where he found them. The defendant was not shown to have interfered with them, except by including them in the inventory and putting them up for sale and knocking them down in one parcel with the other goods.

A considerable time after the completion of the sale and receipt of the proceeds, the plaintiff claimed that the goods mentioned as valued at $510.10 were exempt from

seizure under execution and did not pass by the assign- 1900. ment, and this action was brought to recover their value.

The cause was tried before Richards, J., who found that the plaintiff had waived his right to claim these goods as exemptions, and also that the defendant was led by the plaintiff or his solicitors into setting aside the shelving, etc., as the exemptions claimed, and judgment was entered for the defendant.

Against this decision plaintiff appealed to the Full Court.

H. M. Howell, Q. C., and T. G. Mathers for plaintiff. The plaintiff claims for the taking of goods not transferred by the assignment. There are two questions. (1) Were the goods exempt so as not to pass? (2) Was there an election binding plaintiff? The grant in the assignment was of everything that might be seized or sold under execution or certificate of judgment. The goods claimed were exempt under R. S. M., c. 53, s. 43, s-s. (f.) "Occupation" has evidently a wide meaning. The statute was amended by 57 Vic., c. 12, s. 2. This avoids agreements to waive exemptions. The plaintiff claimed the shelving first as fixtures, and on that ground it was exempt. Plaintiff was willing to accept what was realized; this right was not waived. The assignment to defendant is dated 11th April. Defendant authorized Bertrand to act for him, and he employed Newton, for all of whose acts defendant is liable. The goods did not pass, as the sheriff would have had no right to seize. In Illinois the cases turn on the words of the statute requiring a debtor to select. Cole v. Green, 20 Ill. 104; Wells v. Lilly, 86 Ill. 317; Figueira v. Pyatt, 88 Ill. 404. The bailiff must leave sufficient and the debtor is not bound to select. Copp v. Williams, 135 Mass. 401. No waiver could make the property pass. Pickard v. Sears, 6 A. & E. 469; Gregg v. Wells, 10 A. & E. 96. No estoppel is pleaded. Defendant has not shown he has parted with the money. As

Statement.