writs of execution issued thereon, ought to be deemed and taken to be null and void as against the plaintiff.

December 1, 1882. Gibbons shewed cause, citing Heaman v. Seale, 29 Grant 278; Davis v. Wickson, 1 O. R. 369; Brayley v. Ellis, 1 O. R. 119: Martin v. McAlpine, 2

C. L. T. 352.

MacKelcan, Q. C., contra, cited R. S. O. ch. 118, sec. 1; Arch. Pr., 12th ed., 943; Sharpe v. Thomas, 6 Bing. 416; Maxwell on Statutes, 56; Doe v. Carter, 8 T. R. 300.

December 30, 1882. ARMOUR, J.-Neither by the common law nor by 13 Eliz. ch. 5, was it illegal or fraudulent for a debtor to prefer one creditor to another (see Holbird v. Anderson, 5 T. R. 235), so that if the defendants' judgment is to be deemed and taken to be null and void, as against the other creditors of O'Connor, it must be so deemed and taken by force of the statute R. S. O., ch. 118.

This statute first became law in 1858, and was enacted at the instance of the mercantile community to remedy, to some extent, the want of a bankrupt law, by preventing insolvent debtors from prefering one creditor to another, and by compelling, so far as possible, by its provisions, an equal distribution of their estates among all their creditors.

Section 1 of that Act, the only one with which we are concerned in determining the question now before us, provides that, "In case any person, being at the time in insolvent circumstances, or unable to pay his debts in full, or knowing himself to be on the eve of insolvency, voluntarily or by collusion with a creditor or creditors, gives a confession of judgment, cognovit actionem or warrant of attorney to confess judgment, with intent, in giving such confession, cognovit actionem or warrant of attorney to confess judgment, to defeat or delay his creditors, in whole or in part, or with intent thereby to give one or more of the creditors of any such person a preference over his other creditors, or over any one or more of such creditors, every such confession, cognovit actionem or warrant of attorney to confess judgment, shall be deemed and taken to be null 79-VOL. I O. R.

and void as against the creditors of the party giving the same, and shall be invalid and ineffectual to support any judgment or writ of execution."

In Young v. Christie, 7 Grant 312, the debtor, Christie, having been sued by Young, his creditor, and having been also sued by McMullen, another creditor, defended Young's suit, and allowed McMullen to take judgment by default, and it was held that such conduct of the debtor was not within the words or the equity of this section, the Chancellor remarking that he had "great difficulty in holding any judgment recovered in the ordinary course of law to be within the equity of the statute."

In McKenna v. Smith, 10 Grant 40, the debtor, Smith, having been sued by his creditor, McKenna, and by another creditor, Ilutty, defended McKenna's suit, in order to enable Hutty to get the first judgment, and allowed Hutty to take judgment by default. The Court followed Young v. Christie. The Chancellor said: "The statute meant to prevent fraudulent preferences and transfers of property, but it certainly has not furnished any machinery, nor indeed given any power, by which its apparent objects can be thoroughly effected. While the Act endeavours to prevent the debtor himself, when in insolvent circumstances, from helping a particular creditor, by any act of his own to a portion of his property, it leaves it open to any such creditor by active proceedings on his part, the debtor being passive, to sweep away the whole estate from all the other creditors, however large and honest and old their claims may be."

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In Labatt v. Bixel, 28 Grant 593, the debtor, Bixel, having been sued by Labatt, his creditor, and also by his son, another creditor, defended Labatt's suit, and merely put in an appearance to his son's suit, and by so doing enabled his son to obtain judgment against him sooner than he could otherwise have done, and before Labatt. The Court said: "The statute avoids a judgment the recovery of which is facilitated by the debtor, in order to its gaining priority, but not all such judgments. There are

several ways in which the recovery of judgment may be facilitated-by confession, cognovit actionem, or warrant of attorney; that is a class; by abstaining from making any defence in the one suit;-by entering appearance and making no further defence. Only the first class in terms is prohibited by the statute. It might have been reasonable to prohibit the others also, or to have made a general provision against a debtor prefering a creditor where two suits are pending against him. The statute did remedy an evil. It might have gone further in the same direction, but did not. If the Courts go further in the same direction where the Legislature has stopped, what would it be but legislation?"

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In King v. Duncan, 29 Grant 113, Proudfoot, V. C., held that "Under the decisions there would seem to be no violation of the statute in a debtor not taking advantage of a credit not having expired, or in his not insisting upon a merger of the debt, if there were any such merger, for the statute only avoids a confession of judgment, a cognovit actionem, or a warrant of attorney to confess judgment."

In Heaman v. Seale, 29 Grant 278, the plaintiff commenced an action in the Queen's Bench against one Cooper on the 21st January, 1881. Cooper entered an appearance, and afterwards filed pleas, so that the plaintiffs were unable to recover judgment until the 28th March. Meantime Seale & Childs commenced an action against Cooper in the County Court on the 16th February; on the 19th Cooper entered an appearance in person; on the same day the declaration was filed; on the 21st Cooper pleaded to the action, and on the same day signed a relictâ verificatione, and judgment was signed and execution issued thereProudfoot, V. C., said: " After perusing the judgments in Young v. Christie, Labatt v. Bixell, and Mackedie v. Watt, I must hold that the judgment attacked does not offend against the provisions of the statute. * * A relictâ verificatione is neither a confession, nor a cognovit, nor warrant of attorney, and is therefore not prohibited by the statute."

on.

In Davis v. Wickson, 1 O. R. 369, on November 4, 1881, Wickson commenced an action in the Common Pleas against Foster; on the same day appearance was entered, a statement of claim delivered, and a statement of defence delivered, and an order made in Chambers, by consent, striking out the defence, and allowing judgement to be entered, which was done, and writs placed in the sheriff's hands. On November 9, 1881, Davis commenced an action in the County Court against Foster, and on November 22nd following entered judgment by default of appearance, and on the 29th placed writs in the sheriff's hands. Boyd, C., said: "It becomes unnecessary to express any opinion upon the validity of the judgment recovered by Wickson against Foster. For the purpose of costs I have somewhat considered the question, and after reading the cases of Holbird v. Anderson, 5 T. R. 235 (which would now be a case unquestionably of improper preference); Feehan v. Lee, 10 C. P. 385, and Labatt v. Bixel, 28 Grant 593, I do not think that the plaintiff could at any time have successfully attacked this prior judgment. See, also, Heaman v. Seale, 2 C. L. T. 44, to which my brother Proudfoot referred me after I had arrived at the same result."

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Judicial decisions have thus, as has been seen, limited the words of the Act, "confession of judgment," "cognovit actionem," and "warrant of attorney to confess judgment," strictly to the instruments technically known as such at the time of the passing of the Act; and, according to them, what O'Connor did, consenting to an order that his defence should be struck out and judgment forthwith signed against him, was not within the Act; because, by so doing, he was not giving a confession of judgment, cognovit actionem, or warrant of attorney to confess judgment, technically so called. See, also, McKenzie v. Major, 23 C. P. 261.

The order nisi must therefore be discharged, with costs. Speaking for myself alone, had the matter been res integra, I would have held that, where a defendant, being a debtor in the circumstances and with the intent in the

Act mentioned, had actively interfered to enable a plaintiff, his creditor, to recover a judgment against him sooner than he could have recovered it by due course of law and without such interference, such defendant was giving a confession of judgment within the very words of the Act, and certainly within its spirit, and was doing the very mischief aimed at by the Act; and I would not have thought that, in so construing the Act, I was legislating, but only making "such construction as should suppress the mischief and advance the remedy, and should suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and should add force and life to the cure and remedy according to the true intent of the makers of the Act, pro bono publico."

I refer to Heydon's Case, 3 Rep. 7b; Doe Mitchinson v. Carter, 8 T. R. 300; Sharpe v. Thomas, 6 Bing. 416; Wilson v. Wilson, 2 P. R. 374.

HAGARTY, C. J., and CAMERON, J., concurred.

Judgment accordingly.