Pratte
J.
(Lacombe,
J.
concurring)
[Translation]:—I
concur
in
most
of
the
opinions
expressed
by
Marceau,
J.
in
his
reasons.
However,
I
cannot
conclude
as
he
does
that
the
Trial
Division
lacked
jurisdiction
to
rule
on
any
of
the
arguments
raised
by
Her
Majesty
in
her
written
objection
to
the
statement
by
the
garnishees
(the
appellants).
The
latter
argued
that
the
lack
of
jurisdiction
by
the
Trial
Division
in
the
case
at
bar
results
because
Her
Majesty's
objection
raises
arguments
which
should
be
decided
by
applying
the
law
of
Quebec
rather
than
federal
law.
Marceau,
J.
dismisses
this
argument,
and
I
entirely
agree
with
him.
Parliament's
right
under
section
101
of
the
Constitution
Act,
1867
to
create
"additional
courts
for
the
better
administration
of
the
laws
of
Canada"
necessarily
implies
a
right
to
give
those
courts
the
power
to
ensure
that
their
judgments
are
executed;
similarly,
Parliament’s
power
over
taxation
undoubtedly
includes
that
of
ensuring
that
taxes
are
collected
by
a
provision
such
as
section
223
of
the
Income
Tax
Act
(R.S.C.
1952,
c.
148,
amended
by
S.C.
1970-71-72,
c.
63).
The
power
which
the
court
has
to
enforce
its
judgments
(and
orders
and
certificates,
which
the
law
treats
like
judgments)
would
be
illusory
if
it
did
not
carry
with
it
a
power
to
resolve
problems
raised
by
such
enforcement,
whether
those
problems
are
governed
by
federal
or
by
provincial
law.
Thus,
a
court
which
has
the
jurisdiction
to
order
that
the
property
of
a
debtor
be
garnished
must
necessarily
have
that
of
ruling
on
any
objections
put
forward
by
third
parties
claiming
to
own
the
garnished
property.
Similarly,
the
power
to
garnish
debts
owed
to
a
debtor
in
my
opinion
necessarily
implies
the
power
to
rule
on
the
existence
of
the
debts
garnished.
Accordingly
I
believe
that
in
the
case
of
a
garnishment
of
debt
the
court
has
the
power,
if
the
garnisher
objects
to
the
negative
declaration
of
the
garnishee,
to
rule
on
the
existence
of
the
debt
garnished.
That
is
not
to
say
that
the
court
can
rule
on
all
arguments
which
a
garnisher
may
think
it
proper
to
make
against
a
garnishee.
The
court's
jurisdiction
in
the
matter
is
merely
the
corollary
of
its
power
to
garnish
debts
owed
to
a
debtor
against
whom
it
has
rendered
judgment:
it
follows
that
in
the
case
of
an
objection
to
a
negative
declaration
the
only
arguments
which
the
Court
can
decide
are
those
which
seek
to
establish
that,
at
the
time
of
the
garnishment,
the
judgment
debtor
had
a
claim
against
the
garnishee
which
had
the
necessary
characteristics
for
it
to
be
garnished.
Any
other
argument
which
a
garnisher
seeks
to
make
against
a
garnishee
would
not
be
within
the
court's
jurisdiction.
For
example,
if
the
garnisher
sought
only
to
establish
that
the
judgment
debtor
could
claim
damages
from
the
garnishee
in
the
garnishment,
the
court
would
lack
jurisdiction
because
this
would
not
be
a
sufficiently
certain
and
liquid
debt
for
it
to
be
garnished.
The
garnisher
would
then
be
altering
the
purpose
of
the
garnishment
by
using
it
simply
to
bring
an
action
by
the
judgment
debtor.
On
all
these
points
I
feel
that
I
agree
with
Marceau,
J.
It
is
in
applying
the
principles
involved
that
we
part
company.
I
do
not
have
to
summarize
here
the
facts
out
of
which
the
case
arose.
Marceau,
J.
has
done
so.
I
would
add
only
one
thing
to
his
account,
and
it
is
that
immediately
after
the
debtor
company
declared
a
dividend
and
resolved
that
this
dividend
would
be
paid
by
transferring
to
its
shareholders
the
debt
of
$125,000
owed
to
it
by
the
garnishees,
the
notes
recording
that
debt
were
replaced
by
new
notes
signed
by
the
garnishees
in
favour
of
the
company's
three
shareholders.
That
being
said,
I
turn
to
the
objection
made
by
Her
Majesty
to
the
negative
declarations
of
the
garnishees.
In
that
objection
Her
Majesty
raises
a
principal
argument
and
alternative
arguments.
The
principal
argument
is
that:
The
assignment
of
debts
and/or
novation
and/or
remission
of
debts
resulting
from
the
meeting
of
January
5,
1981
and
the
replacement
of
promissory
notes
.
.
.
is
null
and
void
with
respect
to
creditors
of
the
judgment
debtor
in
general
and
the
judgment
creditor
in
particular,
in
that:
(a)
it
has
the
effect
of
injuring
the
said
creditors
since
the
debt(s)
represented
by
the
notes
filed
jointly
as
No.
CS-3
were
the
only
tangible
asset
of
the
judgment
debtor
.
.
.
(b)
it
was
made
by
the
judgment
debtor
with
the
intent
of
defrauding
its
creditors,
in
particular
the
judgment
creditor;
(c)
the
judgment
debtor
was
insolvent
on
January
5,
1981;
and
(d)
the
garnishees
knew
of
the
judgment
debtor's
insolvency
and
that
it
was
unable
to
pay
its
creditors,
in
particular
the
judgment
creditor
.
.
.
Her
Majesty's
first
argument
therefore
is
that:
1.
before
January
5,
1981
the
garnishees
owed
$125,000
to
the
debtor
company
and
this
debt
was
recorded
in
three
notes
signed
by
the
garnishees
to
the
order
of
the
debtor
company,
and
2.
this
debt
of
the
garnishees
to
the
debtor
company
still
existed
at
the
time
of
the
garnishment,
because
the
agreement
by
which
the
parties
terminated
it
was
fraudulent
and
cannot
therefore
be
set
up
against
Her
Majesty.
In
my
view
the
sole
purpose
of
the
argument
is
to
establish
that
the
garnished
debt
(which
as
it
was
recorded
in
notes
was
sufficiently
certain
and
liquid
to
be
garnished)
still
existed
at
the
time
of
the
garnishment,
at
least
so
far
as
Her
Majesty
was
concerned.
It
is
thus
an
argument
which
could
be
raised
within
the
limits
of
the
garnishment
proceedings,
and
on
which
the
Trial
Division
has
jurisdiction
to
rule.
The
alternative
arguments
raised
by
the
respondent
concern
only
one
of
the
four
garnishees,
namely
Rolland
Grandbois,
who
was
both
a
shareholder
and
a
director
of
the
debtor
company.
They
are
set
out
in
paragraph
17
of
the
objection:
17.
Alternatively,
and
without
prejudice
to
all
the
foregoing:
(a)
the
said
Rolland
Grandbois,
as
director
of
the
debtor
company,
is
jointly
liable
for
payment
of
the
sum
of
$125,000
on
account
of
his
having
authorized
payment
of
the
dividend
before
the
debts
of
the
debtor
company
had
been
paid,
contrary
to
the
common
law
applicable
to
companies;
(b)
as
the
said
Rolland
Grandbois
received
an
illegal
dividend
as
a
director
which
made
the
debtor
company
insolvent
while
the
debt
owed
by
the
said
company
to
the
judgment
creditor
remained
unpaid,
he
is
jointly
liable
to
repay
the
said
dividend;
(c)
the
said
Rolland
Grandbois,
as
a
director
of
the
debtor
company,
is
jointly
liable
to
pay
the
sum
of
$125,000
on
account
of
his
having
declared
a
dividend
and
caused
it
to
be
paid
when
he
knew
that
the
debtor
company
was
insolvent
pursuant
to
ss
94
and
187
of
the
Companies
Act,
RSQ
1977,
c
C-38.
In
short,
Her
Majesty
is
alleging
in
this
paragraph
that
the
debtor
company
has
a
claim
against
Rolland
Grandbois,
first,
because
he
received
an
illegally
declared
dividend,
and
second,
because
he
participated
in
the
declaring
of
that
dividend.
In
my
view,
these
are
arguments
which
go
beyond
the
limits
of
garnishment,
and
for
this
reason
the
Trial
Division
lacked
jurisdiction
to
decide
them.
I
am
of
the
same
opinion
on
this
point
as
Marceau,
J.
I
think
it
is
clear
that
these
claims,
which
according
to
the
objection
the
debtor
company
was
entitled
to
make
against
Rolland
Grandbois,
were
not
sufficiently
certain
to
be
the
subject
of
a
garnishment.
For
these
reasons
I
would
allow
the
appeal,
set
aside
the
subject
judgment
and,
rendering
the
judgment
which
should
have
been
rendered,
would
find
that
the
Trial
Division
lacked
the
power
to
rule
on
the
alternative
arguments
made
in
paragraph
17
of
the
respondent's
objection.
I
would
not
award
any
costs
at
trial
or
on
appeal.
Marceau,
J.
(dissenting
in
part):—To
determine
the
true
significance
and
at
the
same
time,
I
think,
the
practical
importance
of
the
question
of
jurisdiction
raised
by
this
appeal,
its
procedural
and
factual
context
has
to
be
clearly
understood.
The
case
arises
in
the
course
of
execution
proceedings
against
a
Quebec
company
to
recover
a
tax
debt
resulting
from
an
assessment
made
by
the
Minister
of
National
Revenue,
and
contained
in
a
certificate
which,
having
been
duly
registered,
acquired
the
executory
force
of
a
judgment
(section
223
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148,
as
amended
by
S.C.
1970-71-
72,
c.
63).
A
provision
order
of
garnishment
was
made
against
the
appellants
pursuant
to
Rule
2300
of
the
General
Rules
and
Orders
of
this
Court.
The
appellants
appeared
within
the
time
specified
and
each
of
them
filed
a
sworn
declaration
in
writing
that
he
owed
the
judgment
debtor
nothing.
The
judgment
creditor,
Her
Majesty
the
Queen,
through
her
counsel
obtained
leave
to
object
to
the
four
negative
declarations
in
writing.
The
question
of
jurisdiction
arises
in
connection
with
this
objection.
The
appellants
argued
that
the
Court
has
no
jurisdiction
to
give
effect
to
it.
The
question
naturally
turns
on
the
facts
alleged
in
the
objection
and
the
conclusions
sought,
and
these
require
closer
examination.
The
facts
alleged
in
the
objection
are
straightforward,
or
at
least,
what
is
necessary
for
our
purposes
can
be
briefly
stated.
Late
in
fiscal
year
1980
the
judgment
debtor,
a
company
incorporated
pursuant
to
Part
I
of
the
Quebec
Companies
Act,
was
insolvent.
It
had
debts,
including
that
of
the
judgment
creditor
for
$159,426.21,
which
far
exceeded
its
assets.
Moreover,
its
only
real
asset
was
a
debt
of
$125,000
recorded
in
promissory
notes
signed
by
a
partnership
made
up
of
the
four
garnishees.
At
the
time
the
company
was
managed
by
three
directors,
including
Rolland
Grandbois,
one
of
the
members
of
the
debtor
partnership,
and
his
brother
Lucien,
while
its
shares
were
divided
between
three
shareholders,
the
two
brothers
and
one
Charchuck.
In
these
circumstances
the
directors
of
the
judgment
debtor
on
January
5,
1981
unanimously
adopted
an
initial
resolution
declaring
a
$268.50
dividend
for
each
ordinary
share
of
the
company,
and
immediately
afterwards
a
second
resolution
to
the
effect
that
the
debt
that
had
just
been
created
would
be
paid
from
the
money
owed
to
the
company
by
the
partnership.
A
few
months
later,
on
the
basis
of
these
resolutions,
the
garnishee
Rolland
Grandbois
was
paid
the
sum
of
$78,370
by
the
partnership.
That
I
think
fully
summarizes
the
relevant
facts,
though
simply
in
factual
terms
and
without
any
legal
characterization.
As
regards
the
conclusions
of
the
objection,
which
set
out
the
remedies
sought,
I
think
one
must
go
to
the
text
and
reproduce
them
in
extenso.
They
are
as
follows:
FOR
THESE
REASONS,
MAY
IT
PLEASE
THIS
HONOURABLE
COURT
TO:
(a)
allow
this
application;
(b)
dismiss
the
negative
declarations,
except
as
to
the
admissions
contained
therein
approved
by
the
judgment
creditor,
filed
in
this
case
by
the
garnishees
Charles
Guilbault
Inc,
Umberto
Bonapace,
Les
Entreprises
du
Nord-Ouest
Inc
and
Rolland
Grandbois
in
his
capacity
as
an
individual
partner
in
the
partnership
"L'édifice
Centre-Ville
Enrg”;
(c)
declare
to
be
illegal,
fraudulent
and
absolutely
null
and
void
against
the
creditor
of
the
judgment
debtor
in
general,
and
against
the
judgment
creditor
in
particular,
the
assignment
and/or
novation
and/or
remission
of
debt
made
by
the
partnership
“L'edifice
Centre-Ville
Enrg”
and
the
directors
and
shareholders
of
the
judgment
debtor,
by
which
the
promissory
notes
filed
jointly
as
No
CS-3
were
replaced
by
notes
filed
as
No
CS-5;
(d)
declare
that
Charles
Guilbault
Inc
and
Rolland
Grandbois,
in
his
personal
capacity,
Umberto
Bonapace
and
Les
Entreprises
du
Nord-Ouest
Inc,
doing
or
having
done
business
together
under
the
registered
trade
name
of
“L’édifice
Centre-Ville
Enrg”,
owe
the
judgment
debtor
the
sum
of
$125,000,
and
that
the
partners
Charles
Guilbault
Inc,
Umberto
Bonapace,
Rolland
Grandbois
and
Les
Entreprises
du
Nord-Ouest
Inc
are
jointly
liable
to
the
debtor
company
for
payment
of
the
said
sum;
(e)
alternatively
and
without
prejudice
to
paragraph
(d)
above,
find
that
Rolland
Grandbois
as
a
director
of
the
judgment
debtor
is
jointly
liable
for
payment
of
the
said
sum
of
$125,000
to
the
judgment
creditor;
(f)
find
that
the
garnishment
made
by
the
judgment
creditor
herein
on
all
the
garnishees
is
good
and
valid
for
all
legal
purposes;
(g)
direct
the
garnishees
to
jointly
and
severally
pay
the
judgment
creditor
the
sum
of
$125,000
with
interest
at
the
legal
rate
from
the
date
of
service
of
the
provisional
order
of
garnishment.
THE
WHOLE
WITH
COSTS
against
the
garnishees
jointly
and
severally.
That
is
the
substance
of
these
proceedings
objecting
to
their
negative
declarations,
which
the
appellants
are
asking
the
Court
to
strike
on
the
ground
that
it
has
no
jurisdiction
to
dispose
of
them.
In
their
submission,
the
trial
judge
misunderstood
their
argument,
and
they
have
made
it
again
in
support
of
their
appeal.
What
they
are
saying
is
essentially
as
follows.
First,
the
appellants
take
care
to
point
out
that,
contrary
to
what
the
trial
judge
believed,
they
are
not
challenging
the
validity
of
the
garnishment.
Did
they
not
act
promptly
to
give
effect
to
the
Court's
order
and
appear
and
file
their
declaration
as
they
were
required
to
do?
What
they
are
challenging
is
the
right
of
the
Federal
Court
to
rule
on
the
questions
raised
by
the
objection
as
submitted.
Why?
—
because
it
is
an
objection,
they
say,
which
is
not
in
any
way
within
the
scope
of
section
222
of
the
Income
Tax
Act
and
has
nothing
to
do
with
the
debt
being
recovered.
These
three
remedies
which
the
respondent
is
seeking
are
completely
outside
the
federal
purview.
Is
not
the
first
remedy
in
fact
that
of
the
“Paulian
action”
in
Articles
1032
et
seq
of
the
Civil
Code,
which
allows
“any
contract
to
be
avoided
if
there
is
evidence
of
fraud
and
insolvency
.
.
.
(so
that)
once
the
transaction
has
been
avoided,
and
the
assets
returned
to
the
estate
of
the
debtor,
the
creditor
(may)
attempt
to
have
the
judgment
executed
.
.
.”
(pp.
22
and
23
of
the
appellants’
submission)?
The
second
remedy
is
that
specifically
created
by
section
94
of
the
Quebec
Companies
Act
(RSQ
c
C-38),
which
holds
the
director
of
a
company
declaring
an
illegal
dividend
personally
liable;
while
the
third
is
the
general
common
law
remedy
created
by
Article
1053
of
the
Quebec
Civil
Code
in
favour
of
the
victim
of
an
offence
or
a
quasi-offence.
The
appellants
then
conclude:
as
the
Federal
Court's
jurisdiction
cannot
go
beyond
giving
effect
to
statutes
of
the
Parliament
of
Canada
(as
the
Supreme
Court
held
in
McNamara
Construction
v.
The
Queen,
[1977]
2
S.C.R.
654;
75
D.L.R.
(3d)
273
and
Quebec
North
Shore
Paper
v.
Canadian
Pacific
Ltd,
[1977]
2
S.C.R.
1054;
[1978]
C.T.C.
628),
it
cannot
grant
any
of
the
remedies
sought.
Only
the
Superior
Court
of
the
province
can
grant
the
remedies
which
the
respondent
is
claiming
to
exercise.
Some
of
the
propositions
put
forward
by
the
appellants
in
this
argument
are
somewhat
gratuitous
and
others
are
clearly
without
foundation.
Nowhere
in
her
objection
does
the
respondent
refer
to
any
specific
provision
of
Quebec
law:
as
we
have
seen
she
sets
out
the
facts,
speaks
of
fraud
and
draws
a
number
of
conclusions.
Identifying
the
legal
basis
of
the
respondent's
applications
at
once
with
such
precision
is
to
say
the
least
premature.
Moreover,
in
my
opinion
the
appellants
attach
to
Articles
1032
et
seq
of
the
Civil
Code
a
consequence
which
they
do
not
have.
The
Paulian
action
contained
in
these
provisions
does
not
make
the
disputed
contract
void
as
such
and
lead
to
the
property
involved
in
the
action
being
returned
to
the
estate
of
the
debtor.
It
leads
only
to
what
commentators
have
long
called
“unop-
posability",
that
is
a
kind
of
setting
aside
of
the
contract
with
regard
to
the
suing
creditor
or
creditors
only,
the
contract
continuing
to
be
valid
for
the
contracting
parties
and
third
parties.
(See
as
to
this:
H.
Mazeaud,
L.
Mazeaud
and
J.
Mazeaud,
Leçons
de
droit
civil,
t
2,
vol
1,
6th
ed,
1978,
pp
1021
et
seq,
in
particular
pp
1035
et
seq;
J.
L.
Baudoin,
Les
Obligations,
2d
ed,
1983,
pp
335
et
seq,
No
593
et
seq;
M.
Tancelin,
Des
Obligations,
1983,
p
344,
No
671
et
seq.)
In
my
view,
however,
the
major
objection
to
the
appellants’
argument
is
that
it
interprets
the
judgments
of
the
Supreme
Court
in
MacNamara
Construction
and
Quebec
North
Shore
as
denying
this
Court
any
jurisdiction
to
resolve
a
question
of
provincial
law,
regardless
of
how
and
in
what
context
the
question
arises.
If
the
Court
thus
had
to
withdraw
immediately
a
question
of
provincial
law
came
before
it
in
connection
with
the
disposition
of
an
action
in
the
Court,
not
many
actions
could
be
taken
to
their
conclusion.
It
is
actions
based
on
a
cause
independent
of
federal
law
which
the
Court
cannot
hear
and
dispose
of,
and
in
fact,
to
be
precise,
completely
independent
(see
for
the
case
of
a
cause
of
action
based
on
both
federal
and
provincial
law,
Bensol
Customs
Brokers
Limited
v.
Air
Canada,
[1979]
2
F.C.
575;
99
D.L.R.
(3d)
623;
The
Queen
v.
Montreal
Urban
Community
Transit
Commission,
[1980]
2
F.C.
151;
112
D.L.R.
(3d)
266).
The
Court's
power
to
rule
on
a
point
of
provincial
law
which
arises
incidentally
in
the
course
of
exercising
its
proper
jurisdiction
is
not
in
any
doubt.
It
is
clear
that
the
power
conferred
on
the
Court
to
dispose
of
an
action
is
not
limited
to
that
of
ruling
on
the
existence
of
the
right
claimed,
but
carried
with
it
that
of
ensuring
by
legal
means
that
the
judgment
is
enforced.
Otherwise
its
function
would
be
a
purely
academic
one.
The
power
of
jurisdiction
implies
the
complementary
one
of
compulsory
execution,
a
power
of
execution
which,
be
it
said
in
passing,
is
necessarily
the
same
whatever
the
source
of
the
power
of
jurisdiction,
that
is,
whatever
the
Act
of
the
Parliament
of
Canada
on
which
the
judgment
is
based.
Just
as
the
Court
has
the
power
to
rule
on
a
question
of
provincial
law
which
arises
incidentally
in
the
course
of
exercising
its
jurisdictional
power,
so
it
has
the
power
to
dispose
of
a
question
of
provincial
law
which
arises
in
exercising
its
power
of
execution.
Accordingly,
it
cannot
be
concluded
merely
from
the
fact
that
in
the
case
at
bar
the
objection
made
by
the
respondent
to
negative
declarations
raises
questions
of
provincial
law
that
the
Court
does
not
have
jurisdiction
to
determine
their
legitimacy.
The
fact
remains
however
that,
even
though
what
the
appellants
said
in
support
of
their
argument
cannot
be
accepted,
the
argument
itself
may
still
have
some
basis.
The
power
of
the
Court
to
consider
the
respondent's
objection
depends
on
one
essential
condition,
namely
that
the
proceeding
is
merely
a
phase
of
compulsory
execution,
and
to
determine
whether
this
condition
is
met
it
must
first
be
asked
what
is
involved
in
compulsory
execution
of
a
judgment
which
orders
a
party
to
pay
a
sum
of
money,
as
is
the
case
here.
The
natural
sequel
to
a
judgment
ordering
the
payment
of
money
is
obviously
seizure
of
the
assets
of
the
debtor,
so
as
to
obtain
the
necessary
money
to
satisfy
the
judgment.
This
seizure,
justified
by
the
creditor's
general
lien
on
the
debtor's
property,
operates
with
respect
to
personal
property
by
their
seizure
and
sale
and
with
respect
to
debts
due
and
payable
by
garnishment
requiring
that
they
be
paid.
It
seems
clear
that
any
incident
directly
connected
with
this
compulsory
execution
must
necessarily
be
regarded
as
forming
part
of
the
execution
proceedings,
whatever
their
nature
and
legal
basis.
This
applies
equally
to
objection
to
the
seizure
of
personal
property
by
a
third
party
claiming
to
have
some
right
over
it
and
to
the
garnishee's
refusal
to
recognize
his
debt
and
obligation
to
pay
as
indicated
in
his
negative
declaration.
Such
objection
or
refusal
will
necessarily
require
some
assessment
of
its
validity,
that
is
a
decision
as
to
whether
the
legal
cause
put
forward
in
support
of
it
is
valid,
in
the
sense
of
not
a
sham,
and
whether
it
can
be
set
up
against
the
claims
of
the
garnisher.
In
my
opinion,
a
finding
by
a
court
that
the
contract
on
which
the
third
party
relies
to
challenge
the
legitimacy
of
the
seizure,
or
to
argue
that
it
has
nothing
to
pay,
is
a
sham,
or,
though
real,
cannot
be
set
up
against
the
garnisher
—
which
as
I
mentioned
is
the
purpose
of
the
Paulian
action
—
is
still
a
decision
directly
connected
with
compulsory
execution
of
the
judgment.
(See,
for
a
case
of
an
objection
in
the
nature
of
a
Paulian
action
against
an
objection
to
seizure,
Her
Majesty
the
Queen
and
Gallagher
Leblanc
Ltée
and
Suzanne
Gallagher,
judgment
on
which
is
dated
July
2,
1980,
not
reported,
Court
No
T-3600-78.)
However,
that
undoubtedly
is
the
furthest
limit
of
the
proper
field
of
compulsory
execution.
In
light
of
the
foregoing,
therefore,
the
question
is
whether
the
respondent's
objection
in
the
case
at
bar
is
in
fact
still
within
the
limits
of
compul-
sory
execution.
It
can
readily
be
seen
from
examining
the
conclusions
of
the
action
that
it
is
not.
The
respondent
does
speak
of
a
"fraudulent
transaction”,
but
the
Court
must
look
at
exactly
what
is
involved.
The
respondent
does
not
dispute
that
the
garnishees
did
actually
pay
their
debt
to
the
shareholders:
what
she
is
asking
if
I
understand
correctly
is
that
the
declaration
of
a
dividend
be
ruled
illegal
and
be
voided,
thus
making
it
clear
that
the
debt
to
the
shareholders
was
only
apparent,
which
would
establish
that
the
transfer
of
payment
was
a
purely
gratuitous
act
towards
them.
Even
that
is
not
all,
for
even
if
the
transfer
of
payment
and
the
payment
were
gratuitous,
it
does
not
follow
that
the
garnishees
should
pay
again
as
if
they
had
not
made
the
payment.
The
payment
is
a
matter
of
fact
and
it
extinguished
the
debt.
For
the
garnishees
to
be
required
to
pay
again,
there
would
have
to
be
a
debt
equivalent
to
that
extinguished,
but
based
on
some
other
cause
that
the
one
giving
rise
to
the
initial
debt.
I
suppose
it
is
quite
possible
for
the
Court
to
have
the
legal
power
to
give
effect
to
this
group
of
claims
on
proof
of
fraud,
provided
that
all
the
parties
concerned
are
in
court,
the
shareholders
as
well
as
the
members
of
the
partnership,
and
possibly
the
other
creditors
as
well,
and
their
position
could
then
be
determined,
each
in
respect
of
the
others,
that
is,
who
owes
who
and
on
what
basis;
but
I
think
it
is
clear
that
the
focus
of
such
a
group
of
claims
is
no
longer
simply
distraint
on
the
assets
of
the
debtor
and
is
completely
outside
the
scope
of
execution
proceedings.
The
respondent
is
not
seeking
to
realize
a
debt
of
the
judgment
debtor,
she
is
seeking
to
exercise
an
action
which
belongs
only
to
her.
In
my
opinion,
this
Court
does
not
have
jurisdiction
to
entertain
it.
The
appeal
should
accordingly
be
allowed
and
the
appellants’
application
asking
the
Court
to
dismiss
the
objection
to
their
negative
declarations
should
be
allowed.
Appeal
allowed.
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