v. BOSSOM. 1878 is clear that before trial and judgment he had a disWALLACE charge which he could have made available, had he taken the proper steps at the proper time; not having done so, he has allowed the opportunity to pass and a judgment to be entered against him and execution issued thereon, with which the Court had, in my opinion, no right to interfere. Formerly, relief against a judgment could only be had through the instrumentality of the writ of audita querela, but now this writ has fallen into disuse, the Courts under their equitable jurisdiction, give in a summary manner the same relief as under the audita querela. In Comyn's Digest (1) it is said :— Where the party had time to take advantage of the matter which discharges him and neglects it, he cannot afterwards be helped by an audita querela. And in Bacon's Abridgment (2) it is said :— An audita querela is a writ to be delivered against an unjust judg ment or execution by setting them aside for some injustice of the party that obtained them, which could not be pleaded in Bar to the action, for if it could be pleaded it was the party's own fault, and, therefore, he should not be released, that proceedings may not be endless. And 2 Sand, R. 147, note 1, is to the same effect. The general rule of law, as was laid by Channell, B., in Staffordshire Building Co. v. Emmott (3), and adopted and relied upon by the Court in Rossi v. Bailey (4), is that the party who might have pleaded and prevented a judgment, and did not, is estopped from afterwards raising that defence. But the Court in Nova Scotia says that "Sections 94, 98 and 100 of the Insolvent Act of 1869, read in connection with section 101, necessitates such a judgment." I have read those sections and can come to no such conclusion. No doubt the legislature might have interfered with the general rule (1) At audita querela C. (2) At audita querela 510. (3) L. R. 2 Ex. 208. v. Bossom. of law and the doctrine of estoppel, but there is noth- 1878 ing in the sections referred to, or in any other part of the WALLACE Act, that I can discover, shewing any such intention on the part of the legislature, and section 104 exhibits a contrary intention, as it provides how the discharge is to be proved when the Defendant seeks its protection; it enacts that : Until the Court or Judge, as the case may be, has confirmed such discharge, the burden of proof of the discharge being completely effected under the provisions of this Act shall be upon the insolvent, but the confirmation thereof, if not reversed in appeal, shall render the discharge thereby confirmed final and conclusive, and an authentic copy of the judgment confirming the same shall be sufficient evidence, as well of such discharge as the confirmation thereof. The plea relied on the discharge without confirmation; the obvious inference from the Court giving judgment on the trial in favor of the Plaintiff must be, that he neither made good the proof, the burden of which the law cast on him, nor did he allege and prove by the means pointed out in the Act, the confirmation thereof; and there certainly was ample time between the 19th November, 1873, the day on which the Court confirmed the deed and discharge, and the trial, on the 29th January, 1874, to plead the confirmation. The Defendant having then had a full opportunity of pleading and proving his ground of defence, which sets up the deed of composition, and also, of pleading and proving its confirmation, of all which he neglected to avail himself, though present at the trial by his Attorney and defending the action, and so not having relied on and taken advantage of his discharge and its confirmation, as he might, and should have done, and having thus missed the opportunity afforded him, and allowed a judgment to pass against him, and nothing having since occurred to interfere with the judgment, and Plaintiff's rights under it, he is now concluded, and the Plaintiff is entitled to 1878 the fruits of the adjudication in his favor, and the judg WALLACE ment of the Court staying or setting aside either the judgment or execution must be reversed with costs. v. Bossom. STRONG, J., gave an oral judgment dissenting, on the ground that the order appealed from was not a final judgment within the meaning of the 17th section of the Supreme and Exchequer Court Act. RITCHIE, J. What my learned brother has said has not raised any doubt in my mind; it was not raised by the parties in the Court, it was not argued before us, no one appearing on behalf of Respondent. I fully agree with my learned brother, that it is quite proper for a matter affecting jurisdiction to be raised by the Court, but, if so, I should have thought it just and right before determining that this appeal would not lie to allow the Appellant an opportunity to argue the question. This is the first I have heard of it. I do not at all agree as to the construction of the words "final judgment," because, I think, whatever argument might be plausibly drawn from the term "final judgment," is entirely negatived by the statute itself, and by the interpretation clause which has given a statutory definition to the term "final judgment." The clause says : The word "judgment," when used with reference to the Court appealed from, includes any judgment, rule, order, decision, decree, decretal order, or sentence thereof; and, when used with reference to the Supreme Court, it includes any judgment or order of that Court. It strikes me at the first blush of the case, that it would be a most dreadful conclusion to arrive at, if a Court could give judgment in favor of a party, and could next day wipe it out, and by a final order of that kind deprive him of the fruits of his judgment and such final order not be open to an appeal. I think the order comes within the express wording of the statute which I have read. If I had any doubt raised in my mind by the very plausible argument of my learned brother, I should have thought it right to this Appellant, at any rate, to have stayed my hand in giving judgment against him, and to have given him an opportunity to have been heard before the Court. As at present advised, I think my original judgment was the correct one. TASCHEREAU and FOURNIER, J.J., concurred with RITCHIE, J. HENRY, J. : I entirely agree with the judgment given by brother Ritchie. I considered the case very fully, and having seen his judgment some time ago, considered it necessary to do little more than concur in it. As to the question of jurisdiction I am satisfied. It has not come before me for the first time now, because I have had occasion to consider the effect of the statute giving jurisdiction to this Court in some other cases some time ago. Supposing the judgment were for £5,000, and the party came and were told by the Court below that he has a good judgment, but the Court interferes by some assumed power to prevent his having the benefit of that judgment. To all intents and purposes, as far as the party is concerned, it is a final judgment. By such a decision his regular judgment is virtually set aside, and I consider it therefore to be a final judgment. We are not to suppose that the Court below will hereafter alter its dicision. They have virtually decided that the judgment shall not have any effect, and I think it is as much as if the Court had passed an order directly to avoid the judgment altogether, because if the power of the Court is taken away by its own act to award future process to recover the amount of the judgment, it is as waste 1878 WALLACE v. Bossom. 1878 บ. Bo-soM. paper. I think, therefore, an appeal from the decision WALLACE of a Court which vacates the judgment is virtually an appeal from a final judgment, and, therefore, in respect to the definition clause referred to by my brother Ritchie, and regarding it as a final judgment, I think we must consider it one of the final judgments referred to in the Act. I think we have the jurisdiction; and if I had any doubt about it, and felt that the decision of the Court was likely to go against the Appellant, I should consider it but right, before delivering the judg ment of the Court, to hear him upon the point. It was not raised, but, I take it, when a party does not come here to argue his case, or take the exception, he admits the right of the Court. It is true that we cannot usurp jurisdiction, and even in an undefended case, if we felt we had not jurisdiction, it would be our duty to say so. I have no doubt on this point, and, therefore, concur with the judgment, that the judgment of the Court below should be reversed, and the appeal allowed with costs. Appeal allowed with costs. Solicitor for Appellant: James McDonald. |