Supreme Court
of Canada
Geall v. Dominion
Creosoting Co., (1918) 57 S.C.R. 226
Date: 1918-10-21
Grace S. Geall and
George W. Adams (Plaintiffs) Appellants;
and
The Dominion
Creosoting Company and The British Columbia Electric Railway Company (Defendants)
Respondents.
Joseph A. Salter (Plaintiff)
Appellant;
and
The Dominion
Creosoting Company and The British Columbia Electric Railway Company (Defendants)
Respondents.
1918: October 21.
Present: Anglin J. in Chambers.
On Appeal from
the Court of Appeal for British Columbia.
Procedure—Stay of Proceedings—Filing of bonds—Recovery upon them—Anterior execution against judgment
debtors.
Pursuant to the
terms of an order for a stay of proceedings under the judgments of the Supreme
Court, the respondents filed bonds, whose condition was that the obligation
should be void if special leave to appeal to the Privy Council should not be
granted and the respondents should pay such damages and costs as has been
awarded. The appellants made application for delivery out of the bonds,
alleging and establishing by affidavits that leave to appeal had been refused
and that the debt and costs were unpaid.
Held, that it was not incumbent upon the
appellants to shew that they had exhausted their remedies against the
respondents by execution before taking any step towards recovery upon the
bonds.
MOTION before a
Judge in Chambers for delivery out of bonds, to put the same in suit, securing
payment of the debt and costs as awarded by the judgments of the Supreme Court,
these bonds having been filed as a term of obtaining a stay of proceedings to
permit of applica-
[Page 227]
tions for siopecial
leave to appeal being made to the Judicial Committee of the Privy Council.
The material facts
of the case are stated in the judgment now reported.
Harold Fisher for the motion.
Alex. Hill
contra.
ANGLIN J.—As a term of obtaining a stay of proceedings under the
judgments of this court in these cases to permit of applications for special
leave to appeal being made to the Judicial Committee the defendants filed bonds
securing payment of the debts and costs.
The condition of
each of the bonds so filed is that if special leave to appeal should not be
granted and the defendants should pay such damages and costs as had been
awarded the obligation should be void, otherwise it should remain in full force
and effect.
The plaintiffs now apply on notice for
delivery out of these bonds to put the same in suit. They allege and establish
by affidavits that special leave to appeal to the Privy Council has been
applied for and refused and that the debts and costs acknowledged by the bonds
to have been awarded to the plaintiffs remain unpaid. In opposing the
application counsel for the defendants contends that it is incumbent upon the
applicants to shew that they have exhausted their remedies against the
defendants by execution before taking any step towards recovery upon the bonds.
With that contention I am unable to agree. The condition upon which the
obligation under the bonds was to be avoided has not been fulfilled. The
default necessary to establish the liability of the surety, according to its
terms, has been proved, subject, of course, to any other defences that may be
open.
[Page 228]
Daniels Chan.
Practice, 6 ed., p. 1931, 8 ed., p. 1624 and note (t). To require the judgment
creditors to issue executions and obtain returns of nulla bona as a
condition of permitting them to put the bonds in suit might involve the
incurring of needless expense and entail prejudicial delay. Any possible
interest of the surety can be fully protected by the exercise of the discretion
of the court which may try any actions upon the bonds over the costs thereof.
The motion should be granted and the costs of it, so far as I have power so to
direct, should be costs in the actions which it is proposed to bring.
Motion granted.
Email this Content