Davis,
J.:—The
appellant
is
a
suppliant
by
petition
of
right
whose
claim
against
the
Crown
was
dismissed
by
a
judgment
of
the
President
of
the
Exchequer
Court
of
Canada,
ante,
p.
366,
from
which
judgment
this
appeal
was
taken.
The
claim
of
the
suppliant
is
to
recover
from
the
Crown
the
sum
of
$1,417,958.62
paid
by
Hiram
Walker
&
Sons
Ltd.
(hereinafter
for
convenience
referred
to
as
the
Walker
Co.)
to
the
Crown
in
respect
of
excise
duties
and
sales
taxes
on
liquor
manufactured
by
the
Walker
Co.
and
alleged
by
the
suppliant
to
have
been
purchased
by
it
from
the
Walker
Co.
at
prices
that
included
the
excise
duties
and
sales
taxes.
The
claim
put
forward
by
the
suppliant
is
that
it
resold
and
exported
this
liquor
to
purchasers
in
the
United
States
and
that
by
reason
of
such
export,
the
duties
and
taxes
collected
by
the
Crown
were
not
payable
and
that
the
Crown
is
liable
to
repay
to
the
suppliant
the
moneys
paid
together
with
interest.
The
sum
of
$1,417,958.62
is
made
up
of
$1,296,557.01
in
respect
of
excise
duties
and
$121,401.61
in
respect
of
sales
taxes.
The
transactions
in
question
were
said
to
have
taken
place
between
January
31st,
1924,
and
January
25th,
1926.
The
suppliant
was
a
Dominion
company
having
its
office
at
Montreal.
Although
it
had
a
distillery
licence
it
did
nothing
in
the
way
of
carrying
on
a
distillery
business
other
than
the
blending
of
some
Scotch
whiskies
in
relatively
small
quantities.
Commencing
in
January,
1924,
orders
for
liquor
were
furnished
in
the
name
of
the
suppliant
to
the
Walker
Co.
In
the
early
part
of
1924
the
liquor
was
transferred
from
the
Walker
Distillery
in
Walkerville
to
a
nearby
warehouse
from
which
it
was
distributed
in
accordance
with
instructions
given
by
one
Cooper,
who
appears
to
have
been
active
in
the
business
of
the
suppliant
company.
The
orders,
invoices
and
other
documents
that
were
made
out
at
the
time
gave
the
transactions
the
appearance
of
sales
by
the
Walker
Co.
to
the
suppliant
and
of
resales
by
the
suppliant
to
either
W.
Kemp
or
G.
Scherer.
On
or
about
April
26th,
1924,
the
excise
officer
in
charge
of
the
Walker
Distillery
was
instructed
to
refuse
the
delivery
or
the
issue
of
permits
for
the
removal
of
duty
paid
spirits
from
the
Walker
Distillery
to
the
suppliant
unless
the
goods
were
shipped
to
the
suppliant’s
licensed
premises
in
Montreal.
Thereafter
the
liquor
was
shipped
from
the
Walker
Distillery
to
Montreal
where
it
was
at
once
reshipped
(often
without
unloading)
to
Sandwich
or
one
of
the
border
points
on
the
Detroit
river,
where
it
appears
to
have
gone
into
Cooper’s
possession
and
thence
was
resold
and
distributed
by
him.
It
is
claimed
by
the
suppliant
that
all
the
liquor
was
exported
from
the
border
points
in
and
about
Walkerville
to
the
United
States
but
this
claim
was
strenuously
challenged
by
the
Crown.
Under
the
Excise
Act
the
liquor
could
not
be
removed
from
the
Walker
Distillery
until
the
excise
duties
had
been
paid
or
secured
by
bond.
In
the
case
of
each
of
the
transactions
in
question
the
Walker
Co.
made
a
requisition
to
the
excise
officer
for
a
permit
to
remove
the
liquor
"‘duty
paid,”
paid
the
duties
and
obtained
a
permit
for
removal.
Pursuant
to
the
regulations
respecting
sales
tax,
the
Walker
Co.
paid
before
the
end
of
each
month
the
sales
tax
due
in
respect
of
transactions
of
the
previous
month,
in
accordance
with
returns
made
by
it
to
the
Department
of
National
Revenue
showing
the
sales
for
the
month
and
the
taxes
payable
thereon.
No
suggestion
was
made
at
any
time
that
the
moneys
were
paid
under
protest
or
subject
to
any
reservation
either
on
behalf
of
the
Walker
Co.
or
the
suppliant.
By
agreement
dated
May
26th,
1926,
thé
suppliant
sold
its
business
as
a
going
concern
to
a
company
known
as
Dominion
Distillers
Ltd.
The
sale
and
transfer
included
all
debts
due
to
the
suppliant
in
connection
with
the
business.
In
1927
Dominion
Distillers
Ltd.
sold
its
assets
to
Dominion
Distillers
Consolidated
Ltd.
In
1930
Dominion
Distillers
Ltd.
and
Dominion
Distillers
Consolidated
Ltd.
went
into
liquidation.
The
suppliant
had
ceased.
doing
business
sometime
in
1925
or
1926
and
no
meetings
of
its
directors
or
shareholders
were
held
from
March
9th,
1926,
until
February
16th,
1935.
In
these
circumstances
the
respondent
launched
a
motion
before
the
trial
for
an
order
dismissing
the
action
and
directing
that
the
respondent’s
costs
be
paid
by
the
solicitor
for
the
suppliant
upon
the
grounds
that
the
action
was
brought
without
authority
and
that
the
company
had
before
the
commencement
of
the
action
sold
and
transferred
all
its
assets.
The
motion
was
adjourned
to
the
trial
and
the
respondent
gave
a
supplementary
notice
that
on
the
return
of
the
motion
it
would
rely
upon
the
additional
ground
that
if
there
was
any
such
corporation
as
the
suppliant
it
had
ceased
to
exist
and
its
charter
had
become
forfeited
by
reason
of
non-user
under
the
provisions
of
The
Compames
Act,
R.S.C.
1927,
c.
27,
sec.
29,
and
amending
Acts.
On
the
second
day
of
the
trial
this
motion
was
argued
before
the
learned
Judge
as
well
as
a
motion
to
dismiss
on
the
ground
that
the
suppliant’s
cause
of
action,
if
any,
was
barred
by
the
Statute
of
Limitations.
The
learned
Judge,
however,
decided
that
the
trial
should
proceed
to
the
end
and
adjourned
the
motions
to
the
conclusion
of
the
trial.
Judgment
was
reserved
at
the
trial
and
was
pronounced
on
June
12th,
1937,
dismissing
the
petition
with
costs.
The
learned
Judge
felt
bound
by
the
Carling
case
([1931]
A.C.
435)
to
hold
that
in
the
main
the
liquor
was
exported.
He
thought
the
proof
of
export
in
the
case
(upon
this
point,
since
the
appeal
fails
on
other
grounds,
it
is
unnecessary
to
pronounce
a
decision)
was
equally
strong
as
in
the
Carling
case.
He
was
of
opinion,
however,
that
the
claim
to
recover
in
respect
of
sales
taxes
was
barred
by
see.
117
of
the
Special
War
Revenue
Act
(enacted
by
21-22
George
V,
c.
54,
sec.
21,
and
amended
by
23-24
George
V,
e.
50,
sec.
24)
because
it
did
not
appear
that
any
application
in
writing
had
been
made
for
a
refund
within
two
years
from
the
time
when
such
refund
first
became
payable.
His
judgment
was
also
based
on
the
conclusion
that
the
suppliant
company
had
ceased
to
exist
by
reason
of
the
forfeiture
of
its
charter
for
non-user
and
that
the
petition
was,
therefore,
unauthorized
and
a
nullity.
The
learned
Judge
also
held
that
the
Ontario
Limitations
Act,
R.S.O.
1927,
c.
106,
sec.
48,
was
applicable
and
that
the
cause
of
action
was
barred
because
the
petition
was
laid
more
than
six
years
after
the
cause
of
action
arose.
In
the
first
place
it
is
to
be
observed
that
all
the
moneys
paid,
either
as
excise
duty
or
as
sales
taxes,
on
the
liquor
in
question
were
paid
by
the
Walker
Co.
to
the
Crown,
neither
by
compulsion
nor
under
protest,
and
now
form
part
of
the
Consolidated
Revenue
Fund
of
Canada,
and
that
the
Walker
Co.
is
not
a
party
to
this
action
to
recover
back
these
moneys.
We
should
find
it
difficult
to
decide,
if
it
were
necessary
to
do
so,
that
some
one
other
than
the
manufacturer
or
producer,
upon
whom
the
duties
and
taxes
were
imposed
and
by
whom
they
were
actually
paid
to
the
Crown,
could
recover
the
payments
from
the
Crown.
But
assuming
that
the
suppliant,
as
the
purchaser
of
the
liquor,
whose
purchase
moneys
included
these
outlays
by
its
vendor,
could
recover
in
its
own
name
and
on
its
own
behalf,
the
difficulties
in
its
way
appear
to
be
insurmountable.
We
shall
assume,
further,
in
the
suppliant’s
favour,
without
expressing
any
opinion
upon
the
point,
that
the
suppliant
‘s
charter
had
not
become
forfeited
for
non-user
and
that
it
was
an
existing
corporation
entitled
to
maintain
the
action.
It
1s,
moreover,
unnecessary
to
express
any
opinion
upon
the
contention
of
the
Crown
that
at
the
date
of
the
petition
of
right
the
suppliant
had
no
longer
any
interest
in
the
claim
upon
which
it
sues
by
virtue
of
the
fact
that
the
claim
had
been
transferred
to
the
Dominion
Distillers
Consolidated
Ltd.
through
the
Dominion
Distillers
Ltd.
We
have
arrived
at
our
conclusion
without
taking
into
account
the
difficulties
which
might
be
raised
by
these
questions.
Two
or
three
dates
are
of
importance
in
the
consideration
of
the
appeal.
The
date
of
the
filing
of
the
petition
of
right
was
December
14th,
1934;
the
transactions
in
liquor
in
respect
of
which
the
Walker
Co.
paid
excise
duty
and
sales
taxes
were,
as
already
stated,
between
January
31st,
1924,
and
January
25th,
1926.
As
to
the
claim
for
$1,296,557.01
in
respect
of
the
payment
of
excise
duties.
These
duties
were
paid
by
the
Walker
Co.
voluntarily
in
the
ordinary
course
of
business
before
removal
of
the
liquor.
Liability
for
payment
during
the
period
in
question
was
imposed
by
the
Excise
Act,
R.S.C.
1906,
e.
51—(prior
to
1921
the
statute
was
called
The
Inland
Revenue
Act,
11-12
George
V,
c.
26,
sec.
2).
Under
sec.
174
the
duties
could
not
be
refunded
on
export
unless
when
specially
permitted
by
some
regulation
made
by
the
Governor
in
Council.
No
such
regulation
was
made.
Under
The
Consolidated
Revenue
and
Audit
Act,
1931
(21-22
George
V,
c.
27,
sec.
33),
the
Governor
in
Council,
whenever
he
deems
it
right
and
conducive
to
the
public
good,
may
remit
any
duty
or
toll
payable
to
His
Majesty,
imposed
or
authorized
to
be
imposed
by
any
Act
of
the
Parliament
of
Canada.
Remit,
by
the
context,
involves
"‘the
refund
of
any
sum
of
money
paid
to
the
Minister
for’’
any
duty
imposed
or
authorized
to
be
imposed
by
any
Act
of
the
Parliament
of
Canada.
No
such
order
in
council
was
ever
passed.
Treated
as
an
action
for
moneys
had
and
received,
the
claim
was
clearly
barred
at
the
end
of
six
years
by
virtue
of
the
combined
effect
of
sec.
32
of
the
Exchequer
Court
Act,
R.S.C.
1927,
c,
34,
and
sec.
48
of
the
Ontario
Limitations
Act,
R.S.O.
1927,
c.
106.
The
claim
cannot
be
treated
as
a
specialty
debt
for
which
the
prescriptive
period
is
20
years.
As
to
the
claim
for
$121,401.61
in
respect
of
the
payment
of
sales
tax.
The
following
provision
was
added
to
the
Specral
War
Revenue
Act
in
1931
(21-22
George
V,
c.
54
sec.
21)
:
"117.
No
refund
or
deduction
from
any
of
the
taxes
imposed
by
this
Act
shall
be
paid
unless
application
for
the
same
is
made
by
the
person
entitled
thereto
within
two
years
of
the
time
when
any
such
refund
or
deduction
first
became
payable
under
this
Act
or
under
any
regulations
made
thereunder.
‘
‘
The
above
section
was
repealed
in
1933
(23-24
George
V,
c.
50,
sec.
24)
and
the
following
substituted:
"117.(1)
No
refund
or
deduction
from
any
of
the
taxes
imposed
by
this
Act
shall
be
paid
unless
application
in
writing
for
the
same
is
made
by
the
person
entitled
thereto
within
two
years
of
the
time
when
any
such
refund
or
deduction
first
became
payable
under
this
Act
or
under
any
regualtions
made
thereunder.
"‘(2)
If
any
person,
whether
by
mistake
of
law
or
fact,
has
paid
or
overpaid
to
His
Majesty,
any
moneys
which
have
been
taken
to
account,
as
taxes
imposed
by
this
Act,
such
moneys
shall
not
be
refunded
unless
application
has
been
made
in
writing
within
two
years
after
such
moneys
were
paid
or
overpaid.
‘
‘
No
application
was
made
for
a
refund
within
the
time
prescribed
by
the
statute.
Moreover,
the
suppliant
did
not
invoke
the
statutory
right
to
a
refund;
the
claim
was
not
put
upon
that
basis.
Treated
as
an
action
for
moneys
had
and
received,
this
part
of
the
applicant’s
claim
also
fails,
being
barred
by
the
six-
year
limitation
above
mentioned.
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