VOL. VII.] EXCHEQUER COURT REPORTS. 287 IN THE MATTER OF THE PETITION OF RIGHT OF 1902 Jan. 15. JAMES ROSS AND WILLIAM McKENZIE SUPPLIANTS ; AND HIS MAJESTY THE KING RESPONDENT. Customs duties—Importation of steel rails—Return of duties paid under protest—Interest—Law of Province of Quebec. The suppliants had imported at different times during the years 1892-1893 large quantities of steel rails into the port of Montreal to be used by them as contractors for the construction of the Montreal Street Railway. The Customs authorities claimed that the rails were subject to duty, and refused to allow them to be taken out of bond until duties, amounting in the agregate to the sum. of $53,213.54, were paid. The suppliants paid the same under pro.., test. After the decision by the Judicial Committee of the Privy Council of the case of The Toronto Railway Company v. Thé Queen ([ 1896] A. C. 551), and some time in the year 1897 the Customs authorities returned. the ' amount of the said duties to the suppliants. The suppliants claimed that they were,entitled to interest. on the same during the time it was in the hands of the Crown, • and they filed their Petition of Right therefor. Held, that as the duties were paid at the port of Montreal, the casé had to be determined by the law of, the Province of Quebec. 2. That on the particular question as to interest at issue in this case the law of the Province of Quebec is the same as the laws of the other Provinces of the Dominion. 3. That as the moneys wrongfully collected for duties were repaid to the suppliants before the action was brought there was no debt on which to allow interest from the commencement of the suit. If at the time of the commencement of the action the Crown was not liable for the interest claimed it could not be made liable ,by . the institution or commencement of an action. Laine v. The Queen (5 Ex. C.-R. -128), and Henderson v. The Queen (6 Ex. C. R, 39) distinguished. Algoma Central Railway Co. v. The King (ante p. 2$9 ) referred to , 193
288 EXCHEQUER COURT REPORTS. [VOL. VII. 1902 PETITION OF RIGHT for interest upon moneys Ross wrongfully exacted for customs duties at the port of THE KING. Montreal, P.Q., and subsequently returned to the sup- Argument p l l iants. ofCouneel. The facts of the case are stated in the reasons for judgment. June 17th, 1901. The case was heard at Ottawa. I. F. Hellmuth for the suppliants : We submit that under the decisions of the Supreme Court of Canada and the Privy Council we are entitled to interest. In The Queen v. Henderson (1) the Supreme Court decided that interest was recoverable against the Crown without contract therefor, and their lordships of the Privy Council in The Toronto Railway Company y. The Queen (2) decided also interest should be allowed to the suppliants, who demanded it in the petition. I do not think that the case of Page v. Newman (3) enunciates a rule at all applicable to this case, because interest was there sought to be obtained in respect of a debt secured by a written instrument. (See the opinion of this case expressed by Lords Herschell and Watson in London, Chatham & Dover Railway Co. y. South Eastern Railway Co. (4). Page y. Newman is only authority for the proposition that where no interest is provided for upon a written instrument you cannot get interest in such a case by way of damages. In the case of The Caledonian Railway Co. V. Carmichael (5) Lord Westbury held that where money has been wrongfully withheld, interest is recoverable. (He also cited Webster v. British Empire Life Ins. Co. (6) ; Marsh y. Jones (7) ; In re Metropolitan Coal Con- (l) 28 S. C. R. 425. (4) [1893] A. C. 440, 441. (2) Unreported, quoad this ques- (5) L. R. 2 H. L. Sc.'Ap. 56. tion. (6) 15 Ch. p. 169. (3) 9 B. & C. 378. (7) 40 Ch. D. 563.
VOL. VILI EXCHEQUER COURT REPORTS: 289 • sumers Co:: ex parte Wainright (1). In re Gosman (2) ; 1902 Attorney-General v. Partington (3) ; Rodger Y. Le Ross Comptoir D'escompte de Paris (4) ; Bower v. Mitford T KING. (5) ; Turner v. Maule (6). Argwnen We submit that the Crown is in the same position of counsel. as the subject in respect of liability to pay interest on money wrongfully withheld. A. Saunders followed for the suppliants, citing Mayne on Damages (7) ; Grand Trunk Railway Co. v. The Queen (8). E. L. Newcombe K. C., for the respondent, relied upon the cases of The London, Dover & Chatham Railway Co. v. The South Eastern Railway Co. (9) and In re Gosman (10) as to interest. Upon the question of the non-liability of the Crown to pay damages for the with— holding of moneys or property from the subject, he cited Julien y. The Queen (11) ; Tobin y. The Queen (12), and Rishton r. Grissell (13). THE JUDGE OFF THE EXCHEQUER COURT nove (Janu-ary 16th, 1902) delivered judgment. For the reasons stated in the case of The Algoma Central Railway Co.-v. The King (14), which without repeating " them, I desire to' make, in part, my reasons for the judgment about to be given, I am of opinion that the Crown is not liable for the interest, claimed : in the petition of right filed in this case. As the duties on which interest is claimed were paid at the port of Montreal, it is 'contended, and I think rightly, that the case is to be determined by the. (1) 59 L. J. Ch. 281. (7) 6th ed. 165. (2) 17 Ch. D. 772 ; 29 W. R. 14 (8) 2 Ex. C. R. 132: and 793 ; 45 L. T: N. S. 267., (9) [1893] A.. C. 429. (3) L. R. 4 H. L. 100. (10) 17 Ch. D. 772. (4) L. R. 3 P. C: 465. (11) 5 Ex. C. R. 238. (5) 3 L. T. N. S. 575., (12).16 C. B. N. S. 353., (6) 18 L. J. Ch. N. S. 454. ., (13) L. R. 10 Eq. 393. (14) Ante p. 239.
290 EXCHEQUER COURT REPORTS. [VOL. VII. 1902 law of the Province of Quebec, but on the particular Ross question at issue the law of that province is, I think, t,. THE KING. the same as the law of the other provinces of the Dominion. sea.on. for Judgment. In the case of St. Louis y. The Queen (1) the suppliant was allowed interest on his claim from the commencement of his action. In accordance with the rule adopted in that case interest was allowed in the case of Lainé v. The Queen (2), and in Henderson v. The Queen (3). The latter case was brought to recover the value of goods sold and delivered, and on appeal to the Supreme Court it was held by the majority of the court that the plaintiffs were entitled to interest from the commencement of the action on .the amount they recovered (4). By Article 1067 of the Civil Code of Lower Canada a debtor is put in default by the commencement of a suit, or by a demand in writing, and by Article 1077 damages to consist of interest may be allowed from the time of the debtor's default. By the 9th Article of the Code it is provided, in accordance with a well settled rule that no Act of the legislature affects the rights or prerogatives of the Crown unless they are included therein by special enactment. By the 6th Article of the Code the law of Lower Canada is to be applied whenever the question involved relates, among other things, to public policy and the rights of the Crown, and in all cases specially provided for by the Code. In the case of The Exchange Banc of Canada v. The Queen (5), it was held that the Crown is bound by the two Codes of- Lower Canada. The proposition is stated in general terms and without any qualification, but it is probable that it should be read subject to the question then under consider- (1) 25 S. C. R. 665. (3) 6 Ex. C. R. 39. (2) 5 Ex. C. R. 128. (4) 28 S. C. R. 425. (5) 11 App. Cas. 164.
VOL. VII.] ËXCHEQUER COURT REPORTS. 291 ation as a decision that in respect of the subject of 1902 priorities, which it is said is exhaustively dealt with Rs by the Codes: the Crown is bound by them, and that in TaBgi. 4. regard to other provisions of the Codes the question as 8eaaons to whether the Crown is bound is not concluded. 4. for e.. But that is a matter that heed not now be considered ; for Henderson's case is an authority binding on this court that the Crown is, to the extent at least to which that case goes, bound by Articles 1067 and 1077. of the Civil Code. In the present case, however, the moneys wrongfully collected for duties were repaid to the suppliants before the action was brought, and there is no debt on which to allow interest from the commencement of the suit. If at the time of the commencement of the action the Crown was not, as I think it was not, liable for the interest now claimed, it could hot be made liable by the institution or comniencement of an action. The judgment is that the suppliants are .not entitled to any portion of the relief sought by the petition, which is dismissed with costs. Judgment accordingly. • Solicitors for suppliants : Kingsmill, Hellmuth, Saunders 4 Torrance. Solicitor for respondent : P. L. Newcombe.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.