Malzard v. Hart, (1897) 27 SCR 510

Supreme Court of Canada

Malzard v. Hart (1897) 27 SCR 510

Date: 1897-06-06

Fannie M. Malzard (Plaintiff)

Appellant

And

Reuben I. Hart (Defendant)

Respondent

1897: May 6; 1897: June 6.

Present:—Taschereau, Gwynne, Sedgewick, King and Girouard JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Appeal—Evidence taken by commission—Reversal on questions of fact.

Where the witnesses have not been heard in the presence of the judge but their depositions were taken before a commissioner, a court of appeal may deal with the evidence more fully than if the trial judge had heard it or there had been a finding of fact by a jury and may reverse the finding of the trial court if such evidence warrants it.

APPEAL from the judgment of the Supreme Court of Nova Scotia, in banc, affirming the verdict of His Lordship the Chief Justice upon the interpleader issue and the order thereon made against the plaintiff with costs.

The interpleader issue was to try the right to property seized under execution on a judgment by the respondent against Francis L. Malzard. The goods in

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question are claimed by F. L. Malzard's wife, a married woman doing business in her own name under the provisions of sections 52 and 53 of the Married Woman's Property Act[1].

All the witnesses in the case were examined before a commissioner, and the evidence so taken submitted to the trial judge, who gave judgment for the respondent, and the full court affirmed his judgment in appeal, without costs.

Cohan for the appellant. All the evidence was taken before a commissioner, and the trial judge did not see the witnesses, consequently this court cannot be embarrassed by the findings. North British & Mercantile Ins. Co. v. Tourville[2]. He based his decision upon Adams v. Archibald and Slaughenwhite v. Archibald, and erred in supposing that these decisions had any bearing on the case. Neither of these cases control here. In Slaughenwhite v. Archibald, the court set aside the decision of the trial judge, holding that property acquired by a married woman on her own credit, was property acquired otherwise than from her own husband. That case has not the slightest application here. In Adams v. Archibald it was held that the facts disclosed a fraudulent design to cover up the husband's property. Nothing of the kind appears here. The appellant carried on the business with her own moneys and credit, as her own separate business, on premises owned by her in her own right, and paid for by money belonging to her. The property seized was purchased in connection with this business. She cannot be divested of her property on account of mere conjectures and loose or indeterminate evidence. Fraud will never be imputed when the circumstances and facts may be consistent with honesty and purity of intention. Bump, Fraudulent Conveyances (4 ed.)

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p. 593. Re Dearmer[3]; Ashworth v. Outram[4]; Eddowes v. Argentine Loan & Mercantile Agency Co.[5].

The provisions of ch. 94 R. S. N. S. (5th ser.) requiring the husband's written authority to carry on a separate business and registration are based on the Married Woman's Property Act of Massachusetts, ch. 198 of the Acts of 1862[6]. Neither the English Act nor the Ontario Act have such provisions. The following authorities, under the Massachusetts statute, are referred to:—Chapman v. Briggs[7]; Snow v. Sheldon[8]; Long v. Drew[9]; Feran v. Rudolphsen[10]; Bancroft v. Curtis[11]; Chapin v. Kingsbury[12]; O'Neil v. Wolffsohn[13]; Lockwood v. Corey[14]. The proper certificates and consent are filed in this case, and the burden is on the person seeking to show that the business is not that of the wife, to show clearly that it is the business of her husband—which is not shown here. Lush, "Married Women," (2 ed.) pp. 170, 171, 302, 323, 391

Borden Q.C. for the respondent. This appeal should be dismissed because the question is solely one of fact, and a court of appeal will not disturb the findings of the trial judge. Revised Statutes, Nova Scotia, (5th ser.) ch. 104, s. 20, s.s. 4. Gray v. Turnbull[15]; Arpin v. The Queen[16]; Bowker v. Laumeister[17]; Bickford v. Hawkins[18]; Warner v. Murray[19]; Allan v. Quebec Warehouse Co.[20]; Owners "P. Caland" v. Glamorgan S. S. Co.[21].

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The evidence is also clear that the business of appellant's husband, Francis L. Malzard, was carried on continuously after his assignment, first in the name of his assignee, and afterwards in the appellant's own name, and consequently this business must be considered to be his, and the property seized subject to execution for his debts. Meakin v. Samson[22]; Harrison v. Douglas[23]; Crowe v. Adams[24]; Levine v. Claflin[25]; Campbell v. Cole[26]; Murray v. McCallum[27].

The judgment of the court was delivered by:

SEDGEWICK J.—We are all of opinion that this appeal should be allowed.

The evidence was taken, not before the trial judge but by a commission, and we are therefore at liberty to deal with it with less reserve than if the judge had heard it or there had been a finding of fact by a jury. After a careful perusal of the record I have failed to find any evidence upon which the judgment in question can be supported. Primâ facie the goods seized were the property of the appellant—they were purchased for her, in her name, and were then ostensibly in her possession. All the provisions of the statute authorizing her to carry on business in her own name and for her own benefit, were complied with. None of the husband's money or property went into the business. The fact of her carrying on business in her own name was public and notorious, and there was no evidence, nothing but suspicion or surmise, to support the contention that the business was the husband's, not her's. The facts being as stated there was a strong burden upon the creditors attacking the appellant's

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position, to prove the contrary. In this we think they have signally and conspicuously failed, and therefore that the judgment should be reversed.

The appeal will be allowed with costs and there will be judgment for the plaintiff (appellant) with costs, including the costs of the argument before the court in banc.

Appeal allowed with costs.

Solicitor for the appellant: W. A. Henry.

Solicitor for the respondent: A. A. Mackay.