North-West Territories. SUPREME COURT. NORTHERN ALBERTA JUDICIAL DISTRICT. PACIFIC INVESTMENT COMPANY v. SWANN. Interim injunction-Equitable execution in England and in N.W.T.—Execution before judgment-Court not empowered to extend statutory remedies -Receiver-Discretion-New modes of enforcing payments. The assets of a ranch company were, in a suit of Barter v Swann, placed in hands of a receiver for the purpose of winding up the company and dividing proceeds of assets between Barter and defendant herein. The receiver, being about to sell the assets for the purpose as alleged of paying the defendant his share of the proceeds to enable him to defeat his creditors, including the plaintiff, an injunction was granted by Rouleau J, restraining defendant from receiving any such proceeds until after the trial of this action. Held, 1. That no injunction could be granted until after judgment obtained. 2. The right of a creditor to have a receiver is distinct from his right to attach debts due to the debtor, and is a means of enabling the judgment creditor to realize on the debtor's property unattainable by ordinary execution. The attachment of debts is an ordinary mode of execution and the extension of that by giving the right to a creditor before judgment does not authorize an extension in such a case to other remedies. 3. That the fact of a judge granting an injunction when no jurisdiction to do so does not prevent another judge from setting aside his order. Order made dissolving the injunction. [REGINA, Jan. 15, Scott, J. This was an application to dissolve an interim injunction granted ex parte to the plaintiff until trial. The plaintiffs were a company incorporated and doing business in Utah, U.S. They sued the defendant on an English judgment for $12,000 on calls alleged to be due on stock in their company. The defence consisted mainly in putting plaintiffs to the proof of their claim. The defendant's only assets it appears from affidavit were his interest in the Quorn Ranch Co., the assets of which had been vested in two receivers, of whom defendant was one by a decree in an action brought by one Barter against defendant. By the decree the amount realized on the assets was to be divided equally between Barter and the defendant. It was alleged on affidavit filed in the present action that the receivers were about secretly to dispose of the assets, and pay over to the defendant his share to enable him to defeat his creditors, the plaintiff in particular. The plaintiff's advocates, though they had at various times advised the receivers, had been purposely kept in ignorance of the contemplated sale. The plaintiffs thereupon applied for and obtained ex parte an interim injunction until trial, restraining the receivers in Barter v. Swann from paying over any money to the defendant. The defendant moved to dissolve the injunction on the ground that it was issued improvidently, contrary to law and equity, and not just or convenient. James Muir, Q.C., for defendant. This is an attempt to procure equitable execution prior to judgment. The courts will not in respect of a simple contract restrain a defendant from disposing of his assets, or appoint a receiver or grant an injunction in order to hold moneys or goods to enable plaintiff to retain assets out of which to make his judgment if subsequently recovered. The provision for garnishment or attachment before judgment was a purely statutory remedy. To extend these provisions as asked by plaintiff would be practically legislation by the Court. There are no authorities for granting injunction or receiver under similar circumstances. C. C. McCaul, Q.C., for plaintiffs, admitted that defendant's grounds were sound in English law, but our law differs from that in England. The Court will grant equitable relief by way of receiver where money cannot be reached by ordinary garnishee process. In England money cannot be garnished or property attached prior to judgment. In the N.W.T. a simple contract creditor has the right at law to garnish moneys prior to judgment in liquidated demands (J.O. 368) or to attach personal property where the debtor has attempted to sell or dispose of same intending to defraud his creditors generally or plaintiff in particular (J.O. 394). If the plaintiffs were able to show that moneys were already in the the receivers' hands payable to Swann, they would be able to garnish the receivers and attach the moneys in their hands. It is only because the assets are in the hands of the receivers and not in the defendant's hands that plaintiffs cannot avail themselves of s. 394, and attach the goods themselves. The plaintiff therefore asks the Court to extend the equitable principle underlying the doctrine of equitable execution (subsequent to judgment) in England to an analagous state of facts arising in this country before judgment. SCOTT, J. If the plaintiffs had recovered judgment against the defendant in this action I think it will be conceded that upon disclosing these facts he would be entitled to this injunction, but there does not appear to be any authority which goes the length of holding that he is entitled to any such remedy before obtaining judgment. It is, however, contended on behalf of the plaintiff that the principle upon which in England such relief is granted after judgment applies with equal force here, to cases where such relief is applied for before judgment, and the ground for such contention is the fact that by the law of England, no provision is made for the attachment by a creditor before judgment of a debt due to the debtor, that here debts may be attached by the creditor before he obtains judgment, and his remedies are thus extended beyond those possessed by him in England, and that, as the courts in England have interfered to protect him in the remedies possessed by him there, the court here should interfere to protect him in the more extensive remedies possessed by him here. In this case, by reason of the fact that no moneys payable to the defendant have yet reached the hands of the receivers there is no debt which can be attached. What the plaintiff obtains in effect by this injunction is that the defendant's interest in the proceeds of the property in hands of the receivers is bound until such times as there shall be moneys of the defendant in the hands of the receivers which can be attached, or until the plaintiff obtains judgment, and is thereby placed in a position to apply for a receiver of the defendant's interest in the proceeds. I think it will be conceded that he is not entitled to an injunction to obtain the first object alone. Then is he entitled to obtain the second object? I think not In my view the right of a creditor to have a receiver appointed by way of equitable execution is something distinct and apart from his right to attach debts due to the debtor. They are different modes of execution. It is true that the former remedy appears to have arisen from the fact that the debtor may be entitled to a fund or property which cannot be reached by ordinary execution, but they are distinct remedies. This is shown by the provision in Ontario respecting attachment of debts, which enacts that any claim or demand arising out of trust or contract which can be made available under equitable execution may be attached. It may be that if such a provision had been in force here the plaintiff would have been entitled to the injunction as granted if it were necessary to protect him. (The learned Judge then referred to Annual Practice, 1895, p. 924: Wills v. Luff, 38 Ch. D. 197; Re Shepherd, 43 Ch. D. 131.) I think a reasonable deduction from the authorities is that it is a means of enabling the judgment creditor to realize upon the property of the debtor which cannot be reached by the ordinary modes of execution. The attachment of debt is one of those ordinary modes of execution and the extension of that remedy does not, in my view, imply the extension of any other remedy. If it implied, for instance, the like extension of the remedy of equitable execution, I see no reason why it should not also imply the like extension of the ordinary remedy by execution against lands or goods. A number of authorities were cited on the argument to show that the Courts would not at the instance of a creditor interfere to prevent a debtor disposing of his estate even if it were shown that the creditor was thereby being defrauded, and it was conceded by the plaintiff's counsel that such was the case, but, if the plaintiff is right in his contention, I see no reason why a creditor in such case would not be as much entitled to the interference of the Court in his behalf as the plaintiff is in the present case. It was also contended that my brother Rouleau having exercised discretion in granting the injunction I should not interfere with his exercising of it. I admit that the contention is sound, if the granting of the injunction was a matter within his discretion, but I do not think it was. Although s.-s. 8 of s. 25 of the Judicature Act of 1893 provides that an injunction may be granted in all cases in which it shall appear to the court to be just or convenient, yet it was held in Harris v. Beauchamp Brothers (1894) 1 Q.B. p. 801, that those words do not refer to an arbitrary or unfettered discretion on the court, and do not authorize the court to invent new modes of enforcing payments in substitution for the ordinary modes. In my opinion the granting of the injunction was not within the discretion of my brother Rouleau. It was also contended on behalf of the plaintiff that the court would not permit its officers, viz., the receivers, to deal with the defendant's property in a way in which the defendant himself would be prevented from dealing with it, viz., by attachment under section 394 of the C. J. Ordinance. I think a reasonable answer to that contention would be that the injunction does not in any way prevent them from dealing with the property. All that it seems to prevent is the payment over to him of his share of the proceeds, and that could not be prevented by attachment under s. 394. Even if it were conceded that the plaintiff were entitled to the injunction granted I think it could not reasonably be contended that he was entitled to an injunction restraining the receivers from selling the property. That would interfere with Mrs. Barter's rights under the decree in Barter v. Swann. For the reasons I have stated, I am of the opinion that the injunction should be dissolved, and being of that opinion it is unnecessary for me to dispose of the other objections raised by the defendant. Defendant is entitled to the costs of this application. As the question involved is an important one, plaintiff may desire to appeal from the order dissolving the injunction. Should he do so the parties may not be in the same position when the appeal is disposed of as they are now. If it is eventually found that the defendant is now entitled to receive and dispose of his interest under the decree he should not be deprived of that right until such time as he may lose it; on the other hand if it is found that he is not so entitled his being permitted to receive or dispose of it would be an injury to the plaintiff. It was suggested on the argument that I might by my order provide against both of these contingencies, but upon considering the matter I cannot devise any order which will leave the parties in the same relative position upon the determination of the appeal as they are now. Richardson, Rouleau, Wetmore, McGuire, JJ.] [March 4, 5, 1897. REGINA V. PAH-CAH-PAH-NE-CAPI, alias CHARCOAL. Crown case reserved—Admissibility of evidence of admission by accused upon trial for murder. Held, per WETMORE, J., that the only evidence against the accused was admission made by him to James Wilson, an Indian agent, in words, “I also killed a boy up the river;" that Mr. Wilson stated he was instructed to act as legal adviser to Indians under his jurisdiction, and as a rule told them he was legal adviser to help them, and that he was not prepared to say he did not hold out any threat or inducement to prisoner to make the statement; that Mr. Wilson was a person in authority to carry out the Indian Act, and a J.P., (53 Vict., c. 29, s. 9;) and it was difficult to conceive a case in which more strongly to insist upon the rules as to non-admissibility of confessions to a person in authority without sufficient previous warning than in the case of Indians. It lay on the crown to prove no inducement or threat, and this was not shown satisfactorily by the evidence of James Wilson or his interpreter, though the latter said "I can remember any statement he (prisoner) made was voluntary; since it was not shown the interpreter knew what in law a voluntary statement was, or what in law an "inducement" amounted to, that it was not necessary to con sider whether the communication was privileged at common law or under N.W.T. Act, 869. Regina v. Fennell, 7 Q.B.D. 147, Regina v. Romp, 17 O.R. 567, and Regina v. Thompson, 5 Reports, Q.B.D. 393 cited in support. Held further, that the conviction should be quashed, and the prisoner discharged as to this offence. RICHARDSON, ROULEAU and MCGUIRE, JJ. concurred. Rimmer, for accused and Department of Indian Affairs. Johnstone, for Attorney-General of Canada. Book Reviews. American Negligence Reports (Current Series). New York, 1897: Remick & Schilling. Canadian agents: Canada Law Journal Co. com This is a new publication, issued first in monthly numbers, and afterwards in permanent form to include all the current state and federal decisions, beginning January, 1897, relating to the subject of "Negligence." monthly numbers are advance sheets only, not intended for binding, and for which no extra charge is made. The first permanent volume is now plete, including notes of English cases, and annotations, and is supplied, binding and expressage included, for $5.50. One of the current numbers gives a full report of the decision of the Supreme Court of Pennsylvania in Donahue v. Kelly, in which the principle laid down in the famous "Squib" case, 2 W. Bl. 892, 1 Smith's Leading Cases, 9th ed., 737, was extended so as to absolve from liability a person who picked up a flaming gasoline lamp for the purpose of throwing it into the street, but before he could reach the door the flames burned him, and he threw it instinctively towards the door, causing thereby an explosion which injured the plaintiff. The series will be found of inestimable value by lawyers conducting cases which come under this branch of the law. INTERNATIONAL ARBITRATION. The time has not yet arrived when men have beaten their swords into plowshares and their spears into pruning hooks. But at least there are many who think with General Sherman that "war is hell," and who are endeavouring to impress this fact upon the thoughtless and the jingoes who rave so loudly about the glory of the shambles that they cannot hear the shrieks of the tortured, or the heart-broken wails of the widow and the orphan. Amongst those who are doing a good work in this connection is the editor of The Pen or Sword, 686 Madison street, Chicago, a paper which has just been started in the interest of peace and international arbitration. We are not surprised to |