Beauvais v. Genge, (1916) 53 SCR 353

Supreme Court of Canada

Beauvais v. Genge, (1916) 53 S.C.R. 353

Date: 1916-05-02

Joseph P. Beauvais, and others

(Defendants) Appellants;

and

Thomas Genge (Plaintiff) Respondent.

1916: February 25; 1916 May 2.

Present: Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.

ON APPEAL FROM THE COURT OF REVIEW, AT MONTREAL.

Appeal—Jurisdiction—Court of Review—Arts. 68 and 69 C.P.Q.—"Supreme Court Act," R.S.C. 1906, c. 139, s. 40.

By article 69 of the Quebec Code of Civil Procedure and the third clause of article 68, as amended by 8 Edw. VII., chap. 75, an appeal lies to the Judicial Committee of the Privy Council, in certain cases, from judgments of the Court of Review, where the amount or value of the thing demanded exceeds $5,000. Section 40 of the "Supreme Court Act," R.S.C, 1906, chap. 139, provides for appeals from the Court of Review to the Supreme Court of Canada, in cases which are not appealable to the Court of King's Bench, but are appealable to the Privy Council.

Held, Anglin J. dissenting, that the words "the thing demanded" in the third clause of article 68 of the Code of Civil Procedure refer to the demande in the action, and not to the amount recovered by the judgment, if they are different; consequently, an appeal lies, in such cases, from the judgments of the Court of Review to the Supreme Court of Canada where the amount or value claimed in the declaration exceeds five thousand dollars. Allan v. Pratt (13 App. Cas. 780); Dufresne v. Guevremont (26 Can. S.C.R. 216); and Citizens Light and Power Co. v. Parent (27 Can. S.C.R. 316) discussed; Town of Outremont v. Joyce (43 Can. S.C. R. 611) and Dominion Salvage and Wrecking Co. v. Brown (20 Can. S.C.R. 203) referred to.

MOTION to quash an appeal from the judgment of the Court of Review, sitting at Montreal, affirming the judgment of Martineau J., in the Superior Court, District of Montreal, by which the plaintiff's action was maintained with costs.

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The plaintiff, by his declaration, prayed that the defendants should be condemned to pay him the sum of $5,017.20, for damages claimed under several specified items which, however, when correctly added together, did not amount to $5,000, and, by the judgment in the Superior Court, he was awarded $2,303. The Court of Review, by the judgment appealed from, confirmed this award. In the circumstances, the respondent moved to quash the appeal to the Supreme Court of Canada on the ground that the true amount of the demande was less than $5,000; that the controversy on the appeal involved merely the amount of the condemnation ($2,303), and that, under the 40th section of the "Supreme Court Act," no appeal could lie.

Louis Coté supported the motion.

A. Lemieux K.C. contra.

The Chief Justice.—This is a motion to quash an appeal for want of jurisdiction. The facts, as disclosed by the material filed, appear to be that an action was brought by respondent Genge to recover from the defendant (as stated in his declaration) the sum of $5,017.20. Certain affidavits are filed shewing that the particulars attached to the claim had been incorrectly added up, and that, in fact, the only amount, even on the plaintiff's shewing, was $4,978.20.

In my view, the question of jurisdiction must be concluded by the prayer of the plaintiff in his declaration, where he says:—

Wherefore the plaintiff prays that the defendants may be jointly and severally condemned and adjudged to pay to the plaintiff the sum of $5,017.20, with interest from that date, etc.

This appeal is taken from the judgment of the Superior Court of the Province of Quebec, sitting in

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review, which confirmed the judgment of the Superior Court awarding damages in favour of plaintiff for the sum of $2,303.00. The jurisdiction of this Court depends upon the interpretation to be given to section 40 of the "Supreme Court Act" which reads as follows:—

In the Province of Quebec an appeal shall lie to the Supreme Court from any judgment of the Superior Court in Review where that court confirms the judgment of the court of first instance, and its judgment is not appealable to the Court of King's Bench, but is appealable to His Majesty in Council.

This section of the statute had its origin in 54 & 55 Vict., ch. 25, sec. 3, and was passed to meet certain decisions of this court in which it had been held that no appeal lay from the Court of Review of Quebec, but only from the Court of King's Bench.

To determine our jurisdiction it is also necessary to consider the provision for appeal to His Majesty in Council from the Court of Review in the Province of Quebec.

Article 68 (3) of the Code of Civil Procedure provides as follows:—

An appeal lies to His Majesty in His Privy Council from final judgments rendered in appeal by the Court of King's Bench:

(1) In all cases where the matter in dispute relates to any fee of office, rent, revenue or any sum of money payable to His Majesty;

(2) In cases concerning titles to lands or tenements, annual rents or other matters in which the rights in future of the parties may be affected;

(3) In every other case where the amount or value of the thing" demanded exceeds five thousand dollars.

Article 69 provides as follows:—

Causes adjudicated upon in review, which are susceptible of appeal to His Majesty in His Privy Council, but the appeal whereof to the Court of King's Bench is taken away by arts. 43 and 44, may, nevertheless, be appealed to His Majesty.

The present case is one in which an appeal to the Court of King's Bench is taken away by articles 43 and 44. We have, therefore, simply to determine

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whether this appeal is in a case where the amount or value of the thing demanded exceeds $5,000.

Previous to 8 Edw. VII., ch. 75, article 68 (3) of the Code of Civil Procedure read as follows:—

In all other cases where the matter n dispute exceeds the sum or value of five hundred pounds sterling.

The question came up for determination under this sub-section of the article as to the interpretation to be placed upon the words "matter in dispute," and the history of the decisions is somewhat curious.

Previous to the case of Allan v. Pratt[1], it had been held in this court and in the courts of Quebec that this language must be interpreted in the light of a provision of the Consolidated Statutes of Lower Canada, which provided as follows:—

Whenever the jurisdiction of the court or the right to appeal from any judgment of any court is dependent upon the amount in dispute, such amount shall be understood to be that demanded and not that recovered, if they are different;

but in Allan v. Pratt1, it was held that, in determining the right of appeal, the judgment is to be looked at as it affects the interests of the party who is prejudiced by it, and who seeks to relieve himself from it by appeal, and, therefore, it is not the amount claimed by the declaration, but the amount actually in controversy which determines the right to appeal.

Subsequent to this decision, this Court, in Dufresne v. Guévremont[2] and Citizens Light and Power Co. v. Parent[3], refused to follow Allan v. Pratt1. All these earlier decisions, however, have no application to the present case. They were predicated upon the fact that the language of the Code was "the matter

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in dispute exceeds, etc.," but now by the amendment, 8 Edw. VII., ch. 75, the matter is made clear, and it is "the amount or value of the thing demanded" which governs. The jurisprudence, both in this court and in the Province of Quebec, can now be made harmonious and uniform.

In the present case, therefore, the amount demanded in the declaration being over $5,000, although the judgment is only for the sum of $2,303, this court has jurisdiction to hear the appeal.

It has been decided here that the amount "demanded" is the amount claimed in the conclusion of the declaration. See Town of Outremont v. Joyce[4]; Dominion Salvage and Wrecking Co. v. Brown[5].

If I were free to deal with this motion without reference to our previous decisions, I would unhesitatingly come to the same conclusion on the literal construction of articles 68 and 69 of the Quebec Code of Procedure.

The general principle applicable to appeals in the French system of procedure is thus expressed in Dalloz, Repertoire Pratique vo. "Appel," No. 50:—

Pour determiner si une affaire excède ou non le taux du dernier ressort il faut se référer en principe au chiffre de la demande exprimée dans les conclusions.

And Rousseau, Lainé, vo. "Appel," No. 64:—

En principe, et cela ne se conteste plus aujourd'hui, c'est la somme demandée et non le somme adjugée que détermine le premier ou dernier ressort.

And at No. 73 the same author says:—

On ne peut prendre pour base du dernier ressort que la somme réclamée. Elle seule fait l'objet de la contestation.

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Fuzier-Herman, vo. "Appel," No. 182:—

Le taux de l'appel se calcuie sur la demande en instance et non sur la condamnation.

As I read articles 68 and 69 of the Quebec Code of Civil Procedure, an appeal is allowed to His Majesty in His Privy Council from final judgments rendered in appeal by the Court of King's Bench or the Court of Review: (1) In every, case where the amount or value of the thing demanded exceeds $5,000; (2) in cases where the matter in dispute relates to any fee of office, etc.; (3) in cases concerning titles to lands or tenements, etc.

In (1) the right to appeal depends upon the amount demanded in the case in which judgment is rendered. In (2) and (3) appeals are allowed where the matter in dispute relates to titles to lands, etc., fees of office, etc., irrespective of the amount demanded.

In (2) and (3) the matter in dispute must of necessity relate to the matter in dispute in the case. The judgment is appealable clearly because the matter in dispute in the case relates to titles to lands, etc., fees of office, etc. Why should the same interpretation not apply to (1)?

It is said that the word "demanded" does not mean "demanded in the action" or "demanded by the declaration." With all deference, I submit that, when the appeal is contingent upon the amount demanded, articles 68 and 69 fix the appealable limit by reference to the amount demanded in the "case" or "cause." Article 69 refers to "causes" adjudicated upon in review which (causes) are susceptible of appeal to His Majesty in His Privy Council, and article 68 (3), omitting the unnecessary words, provides in every other "case" where the amount demanded exceeds $5,000. This must surely mean the amount demanded

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in the "case" or "cause." The word "case" is synonymous with "cause," "suit" or "action." Those words are used as convertible terms all through the Quebec Code of Procedure, v.g., articles 44 and 51, which deal with appeals to the Court of King's Bench and the Court of Review.

It is all made abundantly clear when we consider the French version of article 68. The language is:—

Il y a appel à Sa Majesté en son conseil privé de tout jugement final rendu par la cour du banc du roi:

(1) Dans tous les cas où la matière en litige se rapporte à quelque honoraire d'office, etc.;

(2) Lorsqu'il s'agit de droits immobiliers, rentes, etc.;

(3) Dans toute autre cause où le mordant ou la valeur de la chose réclamée excede la somme ou la valeur de cinq mille piastres;

What is the grammatical construction of this last sentence (3), if not "Dans toute autre cause dans laquelle"; "où"—adverbe de lieu—remplace "lequel" précédé d'une proposition.

The language is not perhaps very aptly chosen, but the meaning is clear.

Reference to the Code will shew that the jurisdiction of the different courts in the province is regulated by the amount demanded in the action. For instance, article 52 provides for an appeal in suits in which the sum claimed or value of the thing demanded is less than $500. It is not the amount of the judgment that regulates the appeal, but the appeal is from the final judgment in all suits or actions which are appealable. The action must involve an appealable claim, whatever may be the amount of the judgment.

As to the meaning of the word "demand," I again submit that it has, in the Quebec Code, a well-settled meaning when used in the connection in which we find it in article 68(3), and connotes

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the claim of redress which the plaintiff makes against the defendant for or by reason of the facts which constitute the cause of action.

By the writ the defendant is summoned to appear and to answer to

the demand of the plaintiff contained in the annexed declaration.

Reference to the notes of Sewell C.J., in Pacquet v. Gaspard[6], in 1817, shews that the Code in article 68(3) uses language which had previously acquired a technical meaning.

Let me also refer at random to some of the articles of the Quebec Code of Civil Procedure where the word is used, for instance, under the captions:—

Jurisdiction, articles 54 and 59(2); Joinder of Issue, article 214; Incidental Proceedings, article 215; Confession of Judgment, article 527; Filing of Exhibits, articles 155, 157 and 174(5); Object of the Demand, article 124.

The motion should be dismissed with costs.

Davies J.—The only doubt which has been raised in my mind as to the proper disposition to be made of this motion to quash this appeal arises out of the decision of the Privy Council in the case of Allan v. Pratt[7]

As, however, was pointed out by Taschereau J., who delivered the judgment of this court in Dufresne v. Guévremont[8], the attention of the Judicial Committee does not appear to have been drawn in that case to article 2311, R.S.Q., which provides that

Whenever the right to appeal is dependent upon the amount in dispute, such amount shall be understood to be that demanded and not that recovered, if they are different.

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I agree with the construction placed upon this article of the Code by this court in the case last cited, and I cannot but conclude that, had the attention of the Privy Council been called to this article of the Code, their decision in Allan v. Pratt[9] would have been different.

I would, therefore, reading the article of the Code and the decision of this court above cited, in conjunction with section 46, sub-section 2, of the "Supreme Court Act," affirm our jurisdiction and dismiss the motion.

Idington J.—I think, if for no other reason than out of consideration due to the probable reliance placed by those, including the Legislature of Quebec, concerned in such questions as involved herein, upon the decisions of this court in the cases of Dufresne v. Guévremont[10] and Citizens' Light and Power Co. v. Parent[11], we should feel bound thereby and dismiss this motion to quash with costs.

Duff J. agreed that the motion to quash the appeal should be dismissed with costs.

Anglin J. (dissenting).—The respondent (plaintiff) moves to quash an appeal by the defendants to this court from the judgment of the Court of Review, affirming, on an appeal by the defendants the judgment at the trial for $2,303, on the grounds that the amount demanded by the plaintiff's declaration was less than $5,000 and that the sum "demanded" is that now in dispute, viz., the amount of the judgment in the trial court, against which the plaintiff did not appeal.

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By the conclusion of his declaration the plaintiff demanded $5,017.20 as damages for loss sustained by him through a fire, for which he asserts defendants were responsible. He now alleges that it is apparent on the face of an itemized statement of damages, filed with his declaration, that the sum of $5,017.20 was inserted in the conclusion of the latter as the result of mistake in computation or clerical error, and that the true amount sought to be recovered has always been $4,874.20. But at the trial he made no modification or reduction in the amount of his demand as stated in the conclusion to his declaration and he has not seen fit then or since to ask any amendment to correct this alleged error. For the purpose of this motion, the amount demanded in the action must, I think, be taken to be that stated in the conclusion of the declaration.

There remains the more important and difficult question whether the right of appeal is governed by the amount so demanded or by the amount of the judgment recovered, which alone is now in controversy, the plaintiff not attempting to appeal against it, and his claim for any larger sum being concluded against him by his failure to appeal from the judgment at the trial.

The Court of Review not being "the highest court of final resort" ("Supreme Court Act," sec. 36) in the Province of Quebec, the right of appeal from it to this court depends upon section 40 of the "Supreme Court Act":—

40. In the Province of Quebec an appeal shall lie to the Supreme Court from any judgment of the Superior Court in Review where that court confirms the judgment of the court of first instance, and its judgment is not appealable to the Court of King's Bench, but is appealable to His Majesty in Council.

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Under this provision, assuming that the decision is not appealable to the Court of King's Bench (arts. 43 and 44 C.P.Q.), which is conceded, in order to establish a right of appeal from it to this court the only other condition prescribed is that it should be appealable to the Privy Council. Upon this question section 46(2) of the "Supreme Court Act," which deals with appeals to this court from the court of last resort in the Province of Quebec, has no bearing.

By art. 69 (formerly 1178(a)) of the Quebec Code of Civil Procedure, it is enacted that:

Cases adjudicated upon in review, which are susceptible of appeal to His Majesty in his Privy Council, but the appeal whereof to the Court of King's Bench is taken away by articles 43 and 44; may, nevertheless, be appealed to His Majesty.

Since 1908, by art. 68 C.P.Q., a right of appeal to His Majesty in Council is conferred

(3) in every other case where the amount or value of the thing demanded exceeds five thousand dollars.

Article 68 C.P.Q. (formerly 1178 C.P.Q.), as it stood prior to 1908, by clause 3 conferred a right of appeal to the Privy Council

in all other cases wherein the matter in dispute exceeds the sum or value of £500 sterling.

Article 2311 of the R.S.Q., 1888, was as follows:—

Whenever the right to appeal is dependent upon the amount in dispute, such amount shall be understood to be that demanded and not that recovered, if they are different.

In the Consolidated Statutes of Lower Canada (1860), ch. 77 (the Act respecting the Court of Queen's Bench), which, by section 52 (afterwards article 1178 C.P.Q.), prescribed the conditions of the right of appeal to the Privy Council, this provision (first enacted by 12 Vict., ch. 38, sec. 82), appeared as section 25, in the following terms:—

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Whenever the jurisdiction of the court, or the right to appeal from the judgment of any court, is dependent upon the amount in dispute, such amount should be understood to be that demanded and not that recovered, if they are different.

The same provision is also found in section 2 of chapter 82 of the same Consolidated Statutes, which has general application to the administration of justice.

2. Whenever the jurisdiction of any court, or the right to appeal from any judgment of any court, is dependent upon the amount in dispute, such amount shall be understood to be that demanded, and not that recovered, if they be different; * * *

In Dufresne v. GuévremonV[12], in 1896, it was unanimously held by this court that article 2311 of the Revised Statutes of Quebec of 1888, applied to appeals to the Privy. Council. The same view had been taken by Dorion C.J. in Grand Trunk Railway Co. v. Godbout[13], in 1877, in regard to section 25 of chapter 77 of the Consolidated Statutes of Lower Canada, and whatever might be thought had the provision been found only in that chapter ("The Queen's Bench Act"), its presence in chapter 82 of the Consolidated Statutes would seem to put it beyond doubt that this view is correct, although Gwynne J. expressed the contrary opinion in. Citizens' Light and Power Co. v. Parent[14]. In the revision of 1888 the portion of section 2 of chapter 82, C.S.L.C., above quoted, was dropped (vol. II., app. C, p. cxix.), no doubt because, in view of what Dorion C.J. had said as to the scope of section 25 of chapter 77 in Grand Trunk Railway Co. v. Godbout13 and in Stanton v. The Home Ins. Co.[15], in 1879, it was thought unnecessary to duplicate the latter provision. With the law in this

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state, the Privy Council, in Allan v. Pratt[16], in 1888, held that

The measure of value for determining a defendant's right of appeal is the amount which the plaintiff recovered; when this falls short of the appealable amount, the court below cannot give leave to appeal;

and on that ground the Judicial Committee dismissed the appeal in that case, where, upon a claim for $5,000, the recovery had been $1,100, notwithstanding that leave to appeal had been granted by the Court of King's Bench. The Board followed its prior decision in Macfarlane v. Leclaire[17], in which the basis of the right of appeal to the Privy Council had been held to be not the amount demanded in the action (in that case £417 0s. 8d.), but the extent to which the judgment affected the interest of the party prejudiced by it and seeking to relieve himself from it by appeal.

In Richer v. Voyer[18] the plaintiff's claim was for $2,061.67 with interest. By the judgment, interest and costs being added to capital, he recovered a sum in excess of £500 sterling. The Court of King's Bench refused to allow an appeal to the Privy Council on the ground that the amount demanded in the action was less than £500 sterling, although it had apparently taken the contrary view in Bellerose v. Hart[19]. The Privy Council, however, granted a petition for leave to appeal to it. The ground upon which it did so does not appear in any report of the case that I have been able to find. But in Stanton v. Home Ins, Co.[20] Dorion C.J. says that leave was granted on the ground that, by adding interest and costs (which were included in the judgment), the amount in dispute was over £500 sterling. He adds that, in his opinion, that was contrary

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to the course of decisions in this country and to the statute (C.S.L.C., ch. 75, sec. 25). See, too, Beullac, Code of Civil Procedure, p. 84, No. 24.

In Quebec Fire Assurance Co. v. Anderson[21], in 1860, the Privy Council granted leave to appeal on an allegation that, with interest and costs added to the principal sum recovered on an insurance policy, a sum amounting to £635 currency, which exceeded £500 sterling, was in issue. But, upon the respondent shewing an error in this calculation, the leave was discharged[22]. In this case the petition for leave expressly stated that

By the Lower Canada Act, 12 Vict. eh. 38, sec. 82, the right of appeal depended upon the amount demanded and not the amount recovered.

The whole report shews that leave was granted, not as an exercise of the royal prerogative, but because, in the opinion of the Board, appealability de plano depended on the amount involved in the appeal.

In Boswell v. Kilborn[23], in 1859, the claim was for £600 currency (less than £500 sterling), and the Court of Queen's Bench refused leave to appeal to the Privy Council on that ground. But the Judicial Committee granted leave to appeal

first, because by the law of Canada interest ran with the judgment, which would bring the subject-matter within the appealable value.

No direct allusion is made in the Macfarlane Case[24] or in Allan v. Pratt[25] either to section 25 of chapter 77 or to section 2 of chapter 82 of the Consolidated Statutes of Lower Canada, 1860, and we are asked to assume that in both these cases this statutory provision

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escaped the notice of the Judicial Committee itself as well as that of counsel. In view of the decisions in Dufresne v. Guévremont[26], Grand Trunk Railway Co. v. Godbout[27], and Stanton v. Home Ins. Co.[28], we can scarcely suppose that it was regarded as wholly inapplicable to appeals to the Privy Council. In Stanton v. The Home Ins. Co.28 Dorion C.J., in delivering judgment in the Court of Queen's Bench, referring to Richer v. Voyer[29], said that in that case

The attention of the Privy Council perhaps had not been drawn to the statute (C.S.L.C., c. 77, s. 25), and it might be well that it should be put before them on the next occasion.

How this statute could have escaped attention in Richer v. Voyer29 it is difficult to conceive, since in that case leave to appeal to the Privy Council had been refused by the Court of King's Bench on the ground that the amount demanded by the declaration and not that recovered determined the right of appeal. The same observation may be made upon Boswell v. Kilborn[30]. In Quebec Fire Ins. Co. v. Anderson[31] the statute 12 Vict., ch. 38, sec. 82 (re-enacted by C.S.L.C. (1860), ch. 77, sec. 25, and ch. 82, sec. 2) was expressly brought to their Lordships' attention; and, having regard to what was said by Dorion C.J. in Stanton v. Home Ins. Co.28, it is scarcely credible that if the statute had escaped attention in Richer v. Voyer29, in Boswell v. Kilborn30, and also in Macfarlane v. Leclaire[32], it was again entirely overlooked in Allan v. Pratt[33].

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Although Taschereau J. made that assumption in Dufresne v. Guévremont[34] (wrongly, Gwynne J. suggests, in Citizens' Light and Power Co. v. Parent[35]), the Quebec Court of Appeal, in Glengoil S.S. Co. v. Pilkington[36], in 1897, with the judgment in Dufresne v. Guévremont34 before it, and with article 2311, R.S.Q., 1888, in mind, holding itself bound by the decisions of the Privy Council in Macfarlane v. Leclaire[37] and in Allan v. Pratt[38], refused to allow an appeal to the Privy Council because the amount of the judgment was less than £500 sterling, although the plaintiff's demand in his declaration exceeded that amount. The Court evidently thought that it should not assume that two statutory provisions, one of them at least (sec. 2 of ch. 82, C.S.L.C.) unquestionably bearing upon this much debated question, had been entirely overlooked on each occasion when that question was before the Judicial Committee. If those statutory provisions were brought to the attention of the Board, as they undoubtedly were in the Anderson Case[39], and as I think we should assume they were in the other cases, unless they were deemed wholly irrelevant, which we cannot assume in view of the decisions to the contrary here and in Quebec and of what took place in Anderson's Case39 and in Richer v. Voyer[40], its decisions must mean that, notwithstanding the declaration of the provincial legislature (which.it was competent to make), Cuvillier v.Aylwin[41] that the amount in dispute

shall be understood to be that demanded and not that recovered, if they are different,

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the right to appeal de plano to the Privy Council shall, in the case of an appeal by a defendant, be determined by the amount recovered, because the amount demanded may, and should be, held to mean that demanded on the appeal, i.e., the amount or value of the matter in controversy in the appeal, and in such a case the only relief sought is from a condemnation for the amount of the judgment. On an appeal by a plaintiff, on the other hand, from a judgment of dismissal, the whole sum claimed in the declaration may be demanded on the appeal, and, unless the claim is modified, is in fact the amount in dispute. Where a plaintiff merely seeks to increase the amount of a judgment in his favour, the case may be different. A similar view of the construction of the like provision of the "Supreme Court Act" (sub-section 4 of section 29 of chapter 135, R.S.C., 1886, added by 54 & 55 Vict., ch. 25, sec. 3; now sub-section 2 of section 46) was unanimously taken by this court in Beauchemin v. Armstrong[42], in 1904, where an appeal by a defendant against a judgment for $631 of costs in an action in which the original claim was for $2,217 was quashed on the ground that "the interest of the party appealing was less than $2,000," the court expressly following Allan v. Pratt[43] and Monnette v. Lefebvre[44], in 1889. This judgment was delivered by Taschereau C.J., who had delivered the judgment of the court in Dufresne v. Guévremont[45] and of the majority in Citizens' Light Co. v. Parent[46].

In Dufresne v. Fee[47] the same learned Chief

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Justice would distinguish Beauchemin v. Armstrong[48] on the ground that

it was not a case where there was à difference between the amount demanded and that recovered.

The decision in Allan v. Pratt[49] would also appear to have been followed by this Court in Kennedy v. Gallagher[50], decided on October 6th, 1908. The claim in that case was for $10,400; the recovery, $1,800. The defendants appealed from the judgment of the Court of Review. Their appeal was quashed. Mr. Cameron suggests a possibility that the case may have proceeded on another ground.

It seems difficult to escape the conclusion that in the foregoing cases (with the exception of Dufresne v. Guévremont[51], in which, although the question as to the right of appeal was the same as that in Richer v. Voyer[52], the allowance of an appeal by the Privy Council in that case was apparently not brought to the attention of the court, Citizens' Light and Power Co. v. Parent[53], which followed Dufresne v. Guévremont51 and Dufresne v. Fee[54]), the word "demanded" in article 2311 of the Revised Statutes of Quebec, 1888 (sec. 25 of ch. 27 and sec. 2 of ch. 82 in the C.S.L.C., 1860), was construed as meaning "demanded or in controversy on the appeal." In Came v. Consolidated Car Heating Co.[55], in 1901, the Court of King's Bench again recognized the rule that the quantum of the interest of the appellant determines the value of the matter in dispute for purposes of the appeal to the Privy Council. In this case leave to appeal was afterwards granted by

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the Privy Council apparently on the ground that the value of the rights in dispute, apart from the claim for damages, exceeded £500 sterling. (Note, p. 258.)

The rule in Allan v. Pratt[56] was also accepted by the Court of Review in Marchand v. Molleur[57], in 1893.

With the law in this state, the Quebec Legislature by 8 Edw. VII., ch. 75, substituted for clause 3 of article 68, C.P.Q., which had formerly read as follows:—

(3) In all other cases wherein a matter in dispute exceeds the sum or value of £500 sterling

the following:—

(3) In all other cases where the amount or value of the thing demanded exceeds the value of $5,000.

In the revision of the Quebec statutes in 1909 article 2311 of the R.S.Q., 1888, is not found, having been repealed by ch. 37 of the statutes of 1908.

The question now presented is whether, as a result of the substitution in clause 3 of article 68, C.P.Q., of the words "the amount or value of the thing demanded" for "the matter in dispute," appealability to the Privy Council no longer depends upon the amount of the interest of the appellant, but is to be determined, alike in the case of plaintiff and defendant, solely by the amount claimed in the declaration, regardless of the value of the matter in controversy on the appeal—with the result that in ah action in which $5,001 has been claimed, the defendant would be entitled to appeal de plano to the Privy Council, although judgment had been recovered for some very trifling sum and the plaintiff had acquiesced therein.

In the only reported case since 1908 that I have

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found, although in his reasons for judgment Jetté C.J. says: "The sum demanded by the action determines the jurisdiction * * *," in the formal judgment the refusal of leave is based upon the fact that "the amount in controversy does not exceed $5,000." Contrary to the view of the Privy Council, in Richer v. Voyer[58] and Quebec Fire Ins. Co. v. Anderson[59], in 1860, the court refused to take costs into account in considering the amount in controversy for purposes of appeal. The judgment also rests, however, on the ground that the proceeding had been taken under the "Winding-up Act," and that it does not authorize an appeal to the Privy Council: Lapierre v. La Banque de St. Jean[60], in 1910.

But if the proper inference from the earlier cases is that, for purposes of appeal to the Privy Council, the word "demanded" in section 25 of chapter 77 and section 2 of chapter 82 of the Consolidated Statutes of Lower Canada, 1860 (R.S.Q., 1888, art. 2311) had been construed to mean "demanded or in controversy on the appeal," so that under that provision the value of the interest of the appellant determined the right to appeal, the same construction should be put upon the word "demanded" in the new clause 3 of article 68 C.P.Q., there being nothing in the context to forbid it. Greaves v. Tofield[61]; Avery v. Wood[62]; Jay v. Johnstone[63]; Joyce v. Hart[64]; Casgrain v. Atlantic and North-West Railway Co.[65]. If by the change made in 1908 the legislature meant to enact that the right of appeal should for the future depend upon the amount claimed in the declaration, in view of the existing

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jurisprudence we should have expected to find it make use of some unmistakable phrase to express that intention, such as "demanded in the action," or "demanded by the declaration," instead of the bare and equivocal word "demanded," shorn even of the words which formerly accompanied it, "and not that recovered, if they be different," which were at least indicative, one would have thought, of an intention to use "demanded" in the sense of "demanded in the action or by the declaration," but were apparently deemed insufficient to warrant giving that construction to it in view of the unsatisfactory basis of appeal to the Privy Council which would result.

Having regard to the reasons assigned by the Judicial Committee in Macfarlane v. Leclaire[66] and Allan v. Pratt[67] for holding that the right of appeal to the Privy Council should depend upon the amount of the appellant's interest, I would not be prepared to give to the word "demanded" in clause 3 of article 68 C.P.Q. the meaning "demanded in the action," even if I were satisfied that the predecessors of article 2311 of the Revised Statutes of Quebec, 1888, had been entirely overlooked in those cases or had been deemed inapplicable, because, to do so, would overturn well-settled jurisprudence with revolutionary consequences, and because that is not the only meaning of which "demanded" is reasonably susceptible.

In Macfarlane v. Leclaire66 the statute 34 Geo. III, ch. 6, sec. 30, upon which the right of appeal depended, declared final the judgment of the Court of Appeals

in all cases where the matter in dispute shall not exceed £500 sterling : but in cases exceeding that sum or value * * * an appeal shall lie to His Majesty in his Privy Council though the immediate sum or value appealed for be less than £500 sterling *.**.

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Nevertheless their Lordships said :—

In determining the question of the value of the matter in dispute upon which the right to appeal depends, their Lordships consider the correct course to adopt is to look at the judgment as it affects the interests of the parties who are prejudiced by it, and who seek to relieve themselves from it by an appeal. If their liability upon the judgment is of an amount sufficient to entitle them to appeal, they cannot be deprived of their right because the matter in dispute happens not to be of equal value to both parties and, therefore, if the judgment had been in their favour, their adversary might possibly have had no power to question it by an appeal.

The right of appeal was maintained, although the original claim had been only for £417 0s. 8d. currency, because "the effect of the judgment was to place in jeopardy" goods for which £1,642 currency had been paid, "and it is the immediate effect of the judgment which must be regarded."

The principle of this decision, their Lordships held, governed Allan v. Pratt[68].

If (as I think they should) the decisions of the Judicial Committee above mentioned should be taken to have put upon the word "demanded" used in the sections of the Consolidated Statutes to which I have referred the meaning "demanded or in controversy in the appeal," as was understood by the Court of King's Bench in Glengoil S. S. Co. v. Pilkington[69], and apparently also by our own court in Beauchemin v. Armstrong[70], and Kennedy v. Gallagher[71], a contrary intention not being clearly apparent, the legislature should be deemed to have used the same word in a subsequent statute dealing with such appeals with the meaning thus attached to it.

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I am, for these reasons, of the opinion that unless the interest of the appellant—the amount demanded or in controversy in the appeal—exceeds $5,000, no right of appeal to the Privy Council is conferred by articles 69 and 68 (3), C.P.Q., and that the respondent's motion to quash should therefore be granted.

Motion dismissed with costs.