[DIVISIONAL COURT.] MULLIN V. PROVINCIAL CONSTRUCTION Co. Divisional Court-Appeal-Right of Judge to Sit on Appeal from Himself— By sec. 70 (2) of the Ontario Judicature Act, R.S.O. 1897, ch. 51, a Judge is disabled from sitting as a member of the Divisional Court hearing an appeal from a judgment or order made by himself, and he has therefore no jurisdiction, after the setting down of an appeal from his judgment, to make an order that execution shall not be stayed. In an action for goods sold and delivered the defendant counterclaimed for trespass. The plaintiff recovered judgment at the trial of his claim, and the trial of the counterclaim was adjourned. The defendant appealed to the Divisional Court, on the ground that the amount for which the plaintiff had recovered judgment should be reduced by $214.50 as damages for breach of warranty: Held, that the trial Judge had no jurisdiction to make an order on application to him under Con. Rule 827 (2) that execution should not be stayed, notwithstanding that an appeal to this Court had been set down; but that as the order was a proper one on the merits, execution should not be stayed save as to the $214.50, as the counterclaim was not one which should have been joined with the action, and it was not shewn that if a verdict were obtained on the counterclaim, there would be any danger of the amount not being recoverable from the plaintiff; and that, as to the $214.50, it was proper to stay execution, notwithstanding affidavits on behalf of the plaintiff of his belief that the defendant's appeal was merely for delay, and as to his uncertainty in respect to the defendant's financial ability to pay the claim, there being no suggestion or evidence that by staying the execution to this extent the plaintiff would probably lose his claim. THIS was a motion by the plaintiff, under Consolidated Rule 827 (2), for an order that execution should not be stayed in this action, notwithstanding a pending appeal to a Divisional Court, and was made before RIDDELL, J., in Chambers, on December 20th, 1907. The circumstances are set out in the judgment. J. H. Denton, for the plaintiff. H. D. Gamble, for the defendant. December 21. RIDDELL, J.:-This was an action tried before me at the non-jury sittings, at Toronto. The plaintiff claimed the price of a quantity of sand delivered from his pit and received by the defendants. The defendants say that the sand delivered was inferior to what the plaintiff had represented it would be, and also counterclaimed: "That . the plaintiff entered the 16-VOL. XVI, O.L.B. D. C. 1907 Dec. 21. D. C. 1907 MULLIN บ. PROVINCIAL Riddell, J. office of the defendants At the trial I found the facts against the defendants in the claim, and directed judgment to be entered for the plaintiff upon his claim for $738.75. The defendants were not ready to go on with the trial of their counterclaim by reason of the absence of a material witness, and I gave them the option of withdrawing the counterclaim and bringing a new action, or of adjourning the trial of the counterclaim. They accepted the latter alternative. The counterclaim has not yet been tried, neither party being at fault respecting the delay. I refused to stay the issue of the judgment until the trial of the counterclaim. Upon the same day judgment was entered and execution issued and placed in the hands of the sheriff of Toronto. The defendants served notice of motion to the Divisional Court, claiming $214.50 for damages for breach of the plaintiff of his contract as to the quality of the sand; and thereupon applied for a fiat on December 12th. A fiat was granted to set down the appeal and (no doubt per incuriam) also to stay the execution. Consolidated Rule 828 provides that upon an appellant becoming entitled by setting down an appeal to the Divisional Court to a stay of execution, a fiat may issue staying the execution in the hands of the sheriff. This fiat cannot, however, issue under this Rule unless and until the appellant has become entitled to a stay, which at the time of the application he was not. The appeal is set down. A motion is now made by the plaintiff, under Rule 827 (2)* for an order that the execution shall not be stayed, notwithstanding the setting down of the appeal. This motion is in no way an appeal * Rule 827 (1): Unless ordered by the Court appealed to or a Judge thereof, the execution of the judgment or order appealed from shall, in the case of a motion or an appeal to a Divisional Court, upon the motion or appeal being set down for argument be stayed pending the motion or appeal, except in the following cases : (a). . (2) Upon special application, the Court appealed to or a Judge thereof may order that execution shall not be stayed, in whole or in part, except on such terms as may seem just. from the fiat, but is a motion rendered necessary, as it is contended, by the stay automatically effected by the setting down of the appeal. It is objected that I am not "a Judge" of "the Court appealed to," it being contended that the appeal is to a Divisional Court, and that under sec. 70 (2) of the Ontario Judicature Act, R.S.O. 1897, ch. 51,* I am precluded from sitting in a Divisional Court upon this appeal. I have had the opportunity of consulting with a number of my brethren, and I think that the objection is without foundation. Section 68 of the Act provides that the King's Bench, Chancery, Common Pleas and Exchequer divisions shall not sit as such divisions; and there shall be no Divisional Courts of any of these divisions; but the Divisional Courts shall be Divisional Courts of the High Court. An appeal is taken to "a Divisional Court of the High Court or to the Court of Appeal": Rules 782, 783; and where to a Divisional Court it is really to the High Court. Where Rule 827 (1) or (2) speaks of "the Court appealed to," the distinction is indicated between the Court of Appeal and the High Court, not between certain members of the High Court and other members of the same Court. The objection is overruled. In my judgment, motions of this kind are generally best made before the Judge who tried the action and who should be most conversant with the facts. As to that, however, much may be said on both sides. On the merits, I should not think of staying the execution until the trial of the counterclaim, even if it be seriously intended to proceed with a claim that cannot be expected to result in a substantial verdict. The counterclaim is in my view, in any event, one which should not have been joined with the action. Many cases are cited in Holmested & Langton's Judicature Act, pp. 459-461, where just such counterclaims were held not such as could be conveniently tried in the action. There is no suggestion that the plaintiff is not a man of substance, or that if a verdict were obtained upon the counterclaim there would be any danger of its not being paid. As to the claim, it will be noticed that the sole ground of appeal is that the defendants should have been allowed damages (which they fix at $214.50) for breach of warranty. There is no appeal * Sec. 70 (2): No Judge shall sit as a Judge on the hearing of an appeal from any judgment or order made by himself; but subject to this provision every Judge of the High Court shall be qualified and empowered to sit in any of such Divisional Courts. D. C. 1907 MULLIN V. PROVINCIAL CONSTRUC TION CO. Riddell, J. .D. C. 1907 MULLIN v. PROVINCIAL Riddell, J. against the remainder ($738.75 minus $214.50), $524.25, and no ground is alleged why this should not be paid. The execution should not be stayed as respects this sum, namely, $524.25. In respect of the $214.50, it must be kept in mind that "the CONSTRUC- general rule and the right of the appellant is that, save in the TION CO. excepted cases, proceedings below are stayed upon the appeal being perfected A proper case must be made out for allowing the respondent to enforce what has not yet become a final judgment, the appeal being a step in the cause": Centaur Cycle v. Hill (1902), 4 O.L.R. 92, at p. 95. All that is shewn here is the belief by the plaintiff that the defendants have no defence to the action, and that their present appeal is merely for the purpose of delay, added to the affidavit of the plaintiff's solicitor that the plaintiff has expressed considerable anxiety as to the financial ability of the defendants to pay the claim, and the solicitor's own belief that the defendants' appeal is to delay the plaintiff and obtain more time to raise the money. There is no suggestion that by staying the execution the plaintiff will probably lose his claim, and no facts are set out from which such an inference can be drawn. On the present material I do not think that the motion can succeed to the full extent, but I reserve leave to the plaintiff to move again in case facts come to his notice indicating danger to his claim. As to the costs to which the plaintiff is entitled under the judgment, I understand that the execution does not cover them; so that there will be a sum against which to draw for costs which may be awarded to the defendants by an Appellate Court. The order will be that the stay effected by the setting down of the appeal be removed to the amount of $524.25, unless the defendants pay that sum to the plaintiff's solicitor upon the judgment on or before December 26th, 1907. Costs of this motion-if the pending appeal be proceeded withto the plaintiff in the appeal-if the appeal be not proceeded withto the plaintiff in any event. The principle upon which I proceed is that as the plaintiff has succeeded in part he should not pay costs in any event; and if the appeal is simply for time or if it turn out to be ineffectual, the plaintiff should be paid his costs. The defendants appealed, and the appeal was argued on January 21st, 1908, before BOYD, C., and ANGLIN and MABEE, JJ. D. C. 1907 MULLIN V. CONSTRUC TION CO. H. D. Gamble, K.C., for the defendants, contended that the learned Judge should not have sat on the motion to set aside the stay of execution in this case: Ontario Judicature Act, R.S.O. 1907, ch. 51, sec. 70, sub-sec. 2; that sec. 68 had changed the practice as it PROVINCIAL previously existed in the Act of 1895, 58 Vict. ch. 12, sec. 63 (0.); that sec. 68 means that all Judges may sit, except the Judge appealed from; and that on the merits the motion should not succeed. He also referred to Centaur Cycle Co. v. Hill, 4 O.L.R. 92; Confederation Life Association v. Labatt (1899), 35 C.L.J. 443; Rice v. Rice (1899), ibid. 535; Wintemute v. Brotherhood of Railway Trainmen (1899), 19 P.R. 6. J. H. Denton, for the plaintiff, contended that there were only two Courts, the High Court of Justice and the Court of Appeal; that properly speaking there is no such Court as a Divisional Court, the appeal is to the High Court, and as the Judge of the High Court the Judge below was entitled to sit: Regina v. Bunting (1884), 70.R. 118; Centaur Cycle Co. v. Hill, at p. 94; that on the merits the execution should not be stayed. PER CURIAM:-The learned Judge had no jurisdiction to make the order in question, which must be set aside. As, however, the order made was a proper one on the merits and a new order must be made to the same effect, there will be no costs. A. H. F. L. [DIVISIONAL COURT.] THE A. R. WILLIAMS MACHINERY CO., LIMITED, V. THE Company Right to Guarantee Debt of Another—Ultra Vires. It is ultra vires of a tug company, incorporated for the purpose of carrying on a general carrying, towing, wrecking, and salvage business in all its branches, to guarantee payment by the owner of a tug employed by the company of a boiler purchased by him to operate the tug. THIS was an appeal from the refusal of his Honour Judge Barrett, Judge of the eighth division court in the county of Bruce, to enter judgment for the plaintiff in this action as against the de D. C. 1908 Jan. 31. |