BREWERS' AND MALTSTERS' ASSOCIATION OF ONTARIO v. ATT. GEN. OF ONTARIO.

The present appeal relates only to the answers given to the first two questions submitted.

The enactment, the validity of which is in question, requires every brewer and distiller to obtain a licence to sell wholesale within the province. The licence fee is imposed in order to the raising of a revenue for provincial purposes." It is a uniform fee of 100 dollars in all cases.

The determination of the appeal depends on what is the true meaning and effect of sub-section 2 and sub-section 9 of section 92 of the British North America Act. The judgment appealed from can only be supported by establishing either that the fee imposed is "direct taxation" within the meaning of sub-section 2, or that the licence is comprised within the term "other licences" in sub-section 9.

The question what is "direct taxation" within the meaning of sub-section 2 does not come now before this Board for consideration for the first time. In the case of the Bank of Toronto v. Lambe 3 it was necessary to put a construction on those words. The Legislature of Quebec had imposed a tax on every bank carrying on business within the province. This tax was a sum varying with the paid-up capital, with an additional sum for each office or place of business. The question at once arose, was this "direct taxation"? It was contended that the tax was not direct, but indirect. All the arguments in favour of the view that the taxation was indirect, which have been forcibly put before your Lordships by the learned counsel for the appellants in the present case, were then pressed upon this Board in vain. The legislation impeached was held valid on the ground that the tax imposed was direct taxation in the province within the meaning of sub-section 2.

Their Lordships are quite unable to discover any substantial distinction between the case of the Bank of Toronto v. Lambe3 and the present case. So far as there is any difference it does not seem to them to be favourable to this appeal.

Their Lordships pointed out that the question was not what was direct or indirect taxation according to the classification of political economists, but in what sense the words were employed by the

Legislature in the British North America Act. At the same time they took the definition of John Stuart Mill as seeming to them to embody with sufficient accuracy the common understanding of the most obvious indicia of direct and indirect taxation, which were likely to have been present to the minds of those who passed the Federation Act.

The definition referred to is in the following terms: "A direct tax is one which is demanded from the very person who it is intended or desired should pay it. Indirect taxes are those which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of another; such as the excise or customs."

In the present case, as in Lambe's Case,3 their Lordships think the tax is demanded from the very person whom the Legislature intended or desired should pay it. They do not think there was either an expectation or intention that he should indemnify himself at the expense of some other person. No such transfer of the burden would in ordinary course take place or can have been contemplated as the natural result of the legislation in the case of a tax like the present one, a uniform fee trifling in amount imposed alike upon all brewers and distillers without any relation to the quantity of goods which they sell. It cannot have been intended by the imposition of such a burden to tax the customer or consumer. It is of course possible that in individual instances the person on whom the tax is imposed may be able to shift the burden to some other shoulders. But this may happen in the case of every direct tax.

It was argued that the provincial Legislature might, if the judgment of the Court below were upheld, impose a tax of such an amount and so graduated that it must necessarily fall upon the consumer or customer, and that they might thus seek to raise a revenue by indirect taxation in spite of the restriction of their powers to the imposition of direct taxation. Such a case is conceivable. But if the Legislature were thus, under the guise of direct taxation, to seek to impose indirect taxation, nothing that their Lordships have decided or said in the present case would

BREWERS' AND MALTSTERS' ASSOCIATION OF ONTARIO v. Att.-Gen. oF ONTARIO.

fetter any tribunal that might have to deal with such a case if it should ever arise.

The view which their Lordships have expressed is sufficient to dispose of this appeal. But their Lordships were not satisfied by the argument of the learned counsel for the appellants that the licence which the enactment renders necessary is not a licence within the meaning of subsection 9 of section 92. They do not doubt that general words may be restrained to things of the same kind as those particularised, but they are unable to see what is the genus which would include "shop, saloon, tavern," and "auctioneer licences, and which would exclude brewers' and distillers' licences.

Their Lordships will humbly advise her Majesty that the appeal should be dismissed. The appellants must pay the costs of the appeal.

Solicitors S. V. Blake, for appellants; Fresh-
fields & Williams, for respondent.
[Reported by J. Eyre Thompson, Esq.,
Barrister-at-Law.

1896. July 23. Nov. 21.

EDISON GENERAL ELECTRIC CO.

(appellants) v. WESTMINSTER

AND VANCOUVER TRAMWAY

CO. AND OTHERS (respon-
dents).*

British Columbia-Insolvency of Debtor
-Undue Preference-Pressure-Collusion
-Consolidated Statutes of British Co-
lumbia, c. 51, s. 1.

Where a statute enacts that in case any person in insolvent circumstances voluntarily or by collusion with a creditor gives a confession of judgment, cognovit actionem, or warrant of attorney to confess judgment, with intent to defraud or delay his creditors or to give undue preference to a particular creditor, pressure by such creditor is no answer to a case which alleges collusion. "Collusion" in such an enactment means agreement or acting in concert.

Martin v. McAlpine (8 Ontario App. 675) approved.

*Coram, Lord Hobhouse, Lord Macnaghten, Lord Davey, and Sir Richard Couch.

Appeal from the Supreme Court of British Columbia. The facts sufficiently appear in the judgment.

E. Blake, Q.C. (of the Canadian Bar), and J. D. Crawford, for the appellants.

C. Robinson, Q.C. (of the Canadian Bar), and R. M. Bray, for the respondents.

SIR RICHARD COUCH delivered the judgment of their Lordships:

The suit in this case was brought by the appellants in the Supreme Court of British Columbia against the respondents to have a judgment obtained by the Bank of British Columbia against the Westminster and Vancouver Tramway Co. declared null and void, and the executions issued thereon and the certificates thereof, registered as a charge against the lands of the tramway company, set aside and cancelled.

It was dismissed with costs by the Judge of the Supreme Court before whom it was heard, and on appeal by the plaintiffs to the Full Court the appeal was dismissed with costs. At the hearing of that appeal, and also of the present appeal, the Bank of British Columbia alone appeared and defended the appeal.

The suit was founded upon section 1 of c. 51 of the Consolidated Statutes of British Columbia, which is as follows:

"In case any person, being at the time in insolvent circumstances, or unable to pay his debts in full, or knowing himself to be on the eve of insolvency, voluntarily or by collusion with a creditor or creditors gives a confession of judgment, cognovit actionem, or warrant of attorney to confess judgment, with intent in giving such confession, cognovit actionem, or warrant of attorney to confess judgment, to defeat or delay his creditors wholly or in part, or with intent thereby to give one or more of the creditors of any such person a preference over his other creditors, or over any one or more of such creditors, every such confession, cognovit actionem, or warrant of attorney to confess judgment shall be deemed and taken to be null and void as against the creditors of the party giving the same, and shall be invalid and ineffectual to support any judgment or writ of execution."

It was not disputed that the tramway

EDISON GENERAL ELECTRIC Co. v. WESTMINSTER AND VANCOUVER TRAMWAY CO.

company was insolvent on December 29, 1893, and that the appellants and the bank were its principal creditors. On that day the appellants obtained a judgment against the tramway company for $18,470.12 and costs. On January 13, 1894, a summons was taken out by the tramway company to set aside this judgment with a stay of proceed ings till January 24, 1894, the return day of the summons. On January 17, 1894, the bank issued a writ of summons against the tramway company for $261,217.67 and costs. On January 24 the tramway company entered an appearance, and before the hearing of the summons to set aside the appellants' judgment on the application of the solicitors of the bank with the written consent of the tramway company's solicitor, judgment was given by the Judge sitting in chambers for the bank for $261,217.67 debt and costs. Afterwards on the same day the summons to set aside the appellants' judgment came on for hearing in Court before the same Judge, and on the 27th he gave judgment dismissing it with costs. On January 31 a writ of fieri facias on the appellants' judgment was issued to the sheriff and a return made of nulla bona.

The material facts with regard to the validity of the judgment for the bank are to be found in the evidence of the defendant Oppenheimer, the president of the tramway company; of Mr. William Murray, the manager of the bank; and Mr. E. Å. Jenns, the solicitor for the tramway company. In his evidence Mr. Jenns said that he was solicitor for the tramway company from the middle of 1893 to the then present date; that he first heard of the judgment for the appellants having been signed on January 5, 1894; that about January 20 he had a conversation with Mr. Davis (the senior partner of the firm who were solicitors for the bank), and spoke to him about the company having decided to allow the bank to take judgment. Mr. Davis said he would prefer to wait and take judgment by default. Mr. Jenns thought he first heard on the 24th that the judgment was to be by consent, and even on the 24th he understood that the arrangement was that the bank was not to sign judgment in the event of "the Edison judgment"

being set aside. It had been arranged by
him with Mr. Davis on the instructions
he got from the company that he was
to consent to judgment. His instructions
were to consent to judgment. As their
Lordships are satisfied that there was
pressure by the bank, it is not necessary
to refer to his evidence on that matter, or
to his evidence about the summons to set
aside the appellants' judgment. It was
not proved that the bank or their solicitors
in any way caused the summons to be
issued. Mr. Murray, the manager of the
bank at Vancouver, in his evidence said
that on hearing of the appellants' judg-
ment he asked Mr. Davis's advice on the
subject, and then sent for Mr. Oppen-
heimer and told him that they would
have to get in ahead of the Edison
judgment-that they must have the first
judgment. The arrangements were left
with the solicitors. Mr. Oppenheimer said
that, having received from Mr. Murray
and Mr. Ward (the superintendent of the
Vancouver branch of the bank) the inti-
mation that the bank insisted upon having
judgment prior to the Edison company,
he gave instructions to the solicitor to
give the bank first judgment. He was
cross-examined at some length as to the
reasons for taking out the summons to
set aside the judgment. It is not neces-
sary, as before observed, to refer to this
part of his evidence. Mr.
Oppenheimer
was also asked as to the reason for giving
the bank the first judgment, and his
evidence as to this may be summed up in
one of his answers; he said that the con-
trolling reason was to give the company
time to make financial arrangements.
It is apparent to their Lordships on the
evidence that the bank did not intend
immediately to enforce the judgment.
The object both of the bank and the
company was to protect the latter against
the claim of the appellants, so that an
attempt might be made to reconstruct
the company
and raise money to meet its
liabilities. Mr. Ward, in his evidence,
said that the object of the bank in trying
to obtain priority for their judgment was
that they should be able to protect the
company so as, if possible, to carry it on.

If the appellants' case had only been that there was a fraudulent preference of

EDISON GENERAL ELECTRIC Co. v. WESTMINSTER AND VANCOUVER TRAMWAY Co.

the bank, the pressure by the bank might have been an answer to it; but their Lordships do not see how pressure alone can be an answer to a case which alleges collusion. The statute is in the alternative. The confession of judgment may be given either voluntarily or by collusion with a creditor. In either case, if there is the intent to defeat or delay creditors, or to give a preference over other creditors, the confession is made null and void

against creditors. In Gill v. Continental
Gas Co.[1872] Lord Bramwell said that the
word "collusion" only signified agreement.
In their Lordships' opinion "collusion
in this section means agreement or acting
in concert. It is plain from the evidence
that there was an agreement between the
tramway company and the bank, the effect
of which was that the bank should have a
judgment, and that their judgment should
have priority to the appellants' judgment,
the object being, as Mr. Ward said, that
the bank should be in a position to protect
the
company, if possible, so as to carry it
The case comes within the provision
in the section. It has been argued for
the respondents that the confession must
be fraudulently given. The section does.
not use that word, but the giving a
judgment by confession by a person in
insolvent circumstances, voluntarily or by
collusion with a creditor, with intent
to defeat or delay his creditors, or to give
a preference to one of them over the
others, is treated by the statute as a
fraudulent act. Their Lordships approve
of the decision of the Court of Appeal for
Ontario in Martin v. McAlpine [1883].2

on.

Their Lordships are of opinion that the statute makes the bank's judgment null and void as against the creditors of the tramway company. They will therefore humbly advise her Majesty to reverse the decree and order of the Supreme Court on the trial and on the appeal, and to declare the judgment of the bank against the tramway company to be null and void, and to order the executions issued thereon and the certificates thereof registered as a charge against the lands of the company to be set aside and cancelled, with costs of the suit, including costs of the appeal to (1) 41 L. J. Ex. 176; L. R. 7 Ex. 332. (2) 8 Ontario App. 675.

the Supreme Court, but with liberty for the appellants to apply to the Supreme Court for any consequential relief for the purpose of enforcing their judgment. The respondents, the Bank of British Columbia, must pay the costs of this appeal.

Solicitors-J. Cornelius Wheeler, for appellants;
Freshfields & Williams, for respondents.

1896. July 15. Dec. 16.

[Reported by J. Eyre Thompson, Esq., Barrister-at-Law.

Patent Assignee of Patent-Prolongation-Patents &c. Act, 1883 (46 & 47 Vict. c. 57), 88. 25-46.

The assignee of a patent who has not assisted the patentee with funds to enable him to bring out his invention, although the assignee's right to apply for a prolongation is confirmed by the Patents Act, 1883, ss. 25-46, does not occupy the position of an inventor who has been inadequately remunerated, and is not entitled to the same indulgence, notwithstanding that the purchase of the patent may have proved

unremunerative.

This was a petition by Dr. John Hopkinson, F.R.S., and the Westinghouse Electric Company for the prolongation of letters patent granted in July, 1882, in respect of an apparatus for distributing electricity.

Moulton, Q.C., Roger Wallace, Q.C., and A. J. Walter, for the petitioners; Cripps, Q.C., and J. C. Graham, for the Corporations of Edinburgh, Aberdeen, and Belfast; Bousfield, Q.C., and C. E. E. Jenkins, for the Corporations of Glasgow, Hull, Bradford, and Dundee, and the National Electric Supply Company of Preston; Terrell, Q.C., and C. Fleetwood

* Coram, Lord Hobhouse, Lord Macnaghten, Lord Davey, and Sir Richard Couch.