1891 GRIFFITHS v. The trustee for the creditors brought an action to have the conveyances set aside. On the trial, after the evidence on both sides was concluded, plaintiff's counsel asked the judge to instruct the Boscowitz. jury as to what, on the evidence of this case, might constitute fraud under the Statute of Elizabeth, and he also asked that an account should be taken of the dealings between W. and B. The judge refused. The jury stated that they were unable to deal with the accounts but found that there was no fraud in the transaction between W. and B. Held, that the refusal of the judge to charge the jury as requested, amounted to a misdirection, and there should be a new trial; that the case could not be properly decided without taking the accounts, and that it could be more properly dealt with as an equity case. Quære, per Patterson, J.-Whether an assignee for the benefit of creditors was entitled to maintain the action if there was no provision in the statute relating to assignments for the benefit of creditors, entitling him so to do. APPEAL from a decision of the Supreme Court of British Columbia discharging an order nisi obtained by the plaintiff to set aside the judgment in favour of the defendant. The facts of this case were as follows:-One, James D. Warren, being indebted to the respondent Boscowitz in a large sum of money, from time to time gave mortgages to the latter as security for his indebtedness. The property so mortgaged was sold by Boscowitz and the proceeds applied upon his claim. Other property of the debtor was also conveyed to Boscowitz on account of the indebtedness. Subsequently to these transactions the debtor made an assignment for the benefit of his creditors to the appellants, and an action was instituted by them against Boscowitz, alleging that no consideration passed from Boscowitz to Warren for the mortgages and conveyances made to him, but the object of the transactions was to husband the property of the debtor for the debtor's benefit and to defeat, delay and defraud his creditors in the recovery of their just claims. In their declaration, the appellants claimed an account of the dealings between Warren and Boscowitz; payment to the plaintiffs of the amount found due by Boscowitz to Warren, and to set aside the conveyance and transfers; or 1891 in the alternative, to have Boscowitz declared trustee of the GRIFFITHS property for the benefit of the creditors of Warren. Prior to the trial an order was obtained for the taking of the accounts, but before this was completed the action came on for trial before the Chief Justice, Sir Matthew Begbie, and a jury. On the trial, after the evidence on both sides was concluded, counsel for the plaintiff asked the judge to direct the jury with respect to what would constitute fraud under the Statute of Elizabeth, but the request was refused. It was upon this refusal that the complaint of misdirection or improper non-direction was mainly based. The conversation between counsel and the trial judge is set out with particularity in the judgment of Patterson, J. S. H. Blake, Q.C., appeared for the appellants. SIR W. J. RITCHIE C.J.-I think this case was not properly left to the jury, and that there has been a mistrial. as to the Statute of Elizabeth was not properly The law explained to the jury, nor their attention called to the several facts brought out in evidence which should have been left to them as matters for their consideration to enable them to determine whether or not there had been an indebtedness, and whether or not the mortgages were given honestly and bonâ fide. I think the attention of the jury should have been called to the facts which Mr. Taylor indicated that he wished the judge to submit to them, though I do not think it was necessary for the counsel to do that, but the judge should have made up his mind as to the main facts which the jury should take into their consideration. Under the circumstances there must be a new trial. As to taking the accounts I think that is a matter for the court below. I do not wish to dictate to the court as to whether it should treat the case as an equity or a jury บ. BOSCOWITZ. 1891 case, though I think the ends of justice would be better GRIFFITHS served by treating it as an equity case. บ. BoscoWITZ. Ritchie C.J. I think the verdict should be set aside and the case go down for a new trial, so that the jury may decide on the law and facts proper to be submitted to them. STRONG J., concurred in the reasons for judgment of the Chief Justice. FOURNIER J., concurred. GWYNNE J., was of opinion that the verdict should be set aside and the case dealt with as an equity case. PATTERSON J.-I agree with, or rather I do not dissent from, the conclusion that the case should be sent back, but I must state, with respect to some of the grounds taken, that my views are not, perhaps, so decided as those of my brother judges. I suppose that the taking of the accounts referred was in order to ascertain whether or not there was a balance due to Boscowitz at the time these mortgages were given, but I am not satisfied that that was the purpose or the object for which the question was discussed at the trial. When the counsel tendered the copy of an order postponing the trial, the Chief Justice asked: of it. What is your object in putting it in? I don't see the object Mr. Taylor. Simply this, my lord. It will shew that when Mr. Boscowitz found that the accounts were being taken and shewed a balance the wrong way he wanted this trial pushed before we had the accounts finished. There was an order postponing this trial, and when he found the balance was on the wrong side he forced on the trial. I wanted the accounts taken before this action was tried so that we would have the accounts settled by the referee and I tender that order for the purpose of shewing that the accounts were tendered. I think the matter there discussed was with reference to the ultimate balance and not the accounts due in 1884, and the taking of these accounts should not, I think, affect our decision as to a new trial. 1891 GRIFFITHS v. But when we look at the issue which attacks the transac- BoscowITZ. tion as being against the Statute of Elizabeth, I think the Patterson J objection was properly taken by Mr. Taylor, though I am not sure that he is not to blame for not taking it more expressly. The Chief Justice says: You want me to define fraud? Mr. Taylor.-No; I want you to put this proposition: That, under the Statute of Elizabeth, there are two requisites; there must be good consideration, and there must be bona fides. Not as to the question of consideration, of which apparently there was enough, but as to the question whether this could be held to be bonâ fide. If Mr. Boscowitz took this property to cover it and keep off the balance of Warren's creditors, so that he and Warren should pay them when they got ready, that would be a sufficient benefit to Boscowitz to do away with the bona fides under that statute. Chief Justice.—I shall decline to do anything of the sort; the law always refuses to define fraud, and very properly. As soon as I define fraud, some man hears my definition, does something, and when brought here says, "I have not committed fraud; I have your definition." He is not asked to put the question of consideration to the jury. It seems to me that the counsel must then have had in his mind the proposition of Giffard L.J., in Alton v. Harrison (a). The question intended to be put seems to have been whether the property was not conveyed so as to keep off Warren's creditors and so be an advantage to Warren. It would have been more satisfactory if counsel had asked the judge more specifically to leave to the jury the question "Was it done to hinder, defeat or delay creditors?" Perhaps it comes to the same thing, but the judge does not seem so to have apprehended it or left it to the jury. He speaks as if it was fraud generally that was spoken of, not fraud with reference to the statute. In that view I think the verdict should be set aside and the case sent back and, as the Chief Justice has said, left to the (a) 4 Ch. App. 622. 1891 court to deal with as regards the form of action, as it shall GRIFFITHS think proper. v. Patterson J. Boscowirz. With regard to parties I am not prepared to say that these parties are entitled to maintain the action. The Ontario cases have not decided that an assignee for the benefit of creditors has a right to attack a deed of this kind except under statute. If there is a statute in British Columbia authorizing it the assignee can act. Then the question. whether the plaintiffs are creditors or not is attacked by the pleadings. I suppose both these questions are still open to the defendants and can be raised on another trial. The appeal is allowed with costs, verdict and judgment of the court below set aside and a new trial ordered. Appeal allowed with costs. Solicitors for appellants: Eberts & Taylor. |