unpaid purchase-money. There are therefore two questions. for determination. App. Div. 1919 C.P.R. Co. V. Canadian Wheat et al I think the respondent was right in adding the appellant as a party to the proceedings at the time the defendant was served with the order nisi. Counsel for appellant in his fac- Growing Co. tum alleges he was quite willing to have the lienholder's rights determined in the present action when the motion was before the Master, but that counsel for the plaintiff would not consent to this. The respondent's counsel in his factum alleges "the appellants however refused the opportunity given them by the Master of establishing their lien by way of defence to the present action or by bringing an action as provided by the Act." It looks a good deal like a sparring match between counsel. I am of opinion that as soon as the appellant was served with the order nisi it was entitled to move to be added as a party to the proceedings for the purpose of establishing its rights under its lien. It did not do so, but it appeared on the motion to foreclose the Canadian Wheat Growing Company, Limited, and it still should have been allowed to be added as a party to the proceedings for the purpose of establishing its lien. Even on this motion the respondent did not make its motion specific as it only called upon those claiming through or under the defendant, the Canadian Wheat Growing Company, Limited. Under sec. 11 of the Act, the lienholder might have a direct claim against the plaintiff as owner if the latter had notice and had not disclaimed. This would hardly be a claim. through or under the defaulting purchaser. Under both secs. 9 and 11 in my view the onus is upon the lienholder to establish his priority if any. Under a provision similar to sec. 9 this view was taken by the British Columbia and Saskatchewan Courts following Ontario decisions: Great West Permanent Loan Company v. National Mortgage Co. [1919] 1 W.W.R. 788; Independent Lumber Co. v. Boez, 4 Sask. L.R. 103, 16 W.L.R. 316; Kennedy v. Haddow, 19 O.R. 240. Simmons, J. App. Div. 1919 C.P.R. Co. V. Canadian Wheat et al The parties are properly before the Court under Rule 47 and I can see no valid reason for relegating them to a separate action. Since the onus is on the appellant it should be given a reaGrowing Co. sonable time to present its claim to which the plaintiff may make answer according to the practice of the Court unless the parties agree to an issue containing the allegations upon which each party relies. Simmons, J. I would therefore vary the order appealed from by giving the lienholder appellant leave to file and serve its claim in regard to its lien. I concur with Beck, J. as to costs and to postponement of the question of priority. MCCARTHY, J. concurred with Simmons, J. Appeal allowed, costs to abide result of issue of enquiry. G. A. Walker, K.C., solicitor for plaintiff, respondent. Lougheed, Bennett & Co., solicitors for defendants, appel lants. 1919 May 2 [APPELLATE DIVISION] RISLER (Plaintiff) Respondent v. Alberta NewSPAPERS LIMITED (Defendant) Appellant GARNET (Plaintiff) Respondent v. ALBERTA NEWSPAPERS LIMITED (Defendant) Appellant Companies-Winding-up Act, R.S.C., 1906, Ch. 144, SS. 22, 23-Action Begun Before Winding-Up Order-Leave to Proceed to Judgment and Execution-Plaintiff's Aim to Render Directors Liable Under Companies Ordinance, C.O., Ch. 61-Sheriff's Return to Writ of ExecutionRestrictions on and Sufficiency of. Statutes - Interpretation - Canadian Statute Taken From Notwithstanding the making of a winding-up order under the Winding- sought is to enable the plaintiff to obtain the sheriff's return prescribed by The Companies Ordinance (Alta.) as a prerequisite to an action against the directors. (In re Exhall Coal Mining Co., 4 DeG. J. & S. 377, and subsequent cases followed). The sheriff should not be permitted to levy under the writ of execution but should be restricted to making the return required to satisfy The Companies Ordinance; the return is sufficient for that purpose if it states that because of the winding-up order the writ cannot be satisfied. App. Div. 1919 Risler Alberta Newspapers Ltd. Garnet T. Alberta Newspapers Ltd. Where a Canadian statute is taken from an English statute it must be interpreted in the light of the English decisions recognized as binding at the time of its adoption, especially if they are still so recognized. Appeals by defendant from orders of L. F. Clarry, Esq. Harvey, C.J. K.C., Master in Chambers at Calgary, referred to the Appel late Division of the Supreme Court by Hyndman, J. Appeals dismissed with costs. The appeal was heard by HARVEY, C.J., BECK, SIMMONS and MCCARTHY, JJ. A. Macleod Sinclair, K.C., for defendant, appellant. May 2, 1919. Cur. adv. vult. RISLER V. ALBERTA NEWSPAPERS LIMITED HARVEY, C.J.-The Dominion Winding-up Act, R.S.C., 1906, ch. 144, appears to have been first enacted in 1882. Sec. 23 of the present Act is in the exact words of the original sec. 21. The words are to all intents the same as those of the English Act which were given an interpretation in 1864 in In re Exhall Coal Mining Co., 4 De. G.J. & S. 377 (46 E.R. 964). That interpretation was one which practically added words of limitation to the section and held that an execution, etc., though declared by the section to be void, was not void if issued by leave of the Court and that such leave could be granted. I concur entirely with the view expressed by Lindley and Bowen, L.JJ. that the construction is a forced one, but upon the principle which this Court has followed frequently I think we are bound to adopt the construction given to the section by the English Courts 18 years before it was adopted by our Parliament especially as that construction has been uniformly placed on it ever since both in England and Canada. 30-A.L.R. App. Div. 1919 Risler V. Alberta Newspapers Ltd. Harvey, C.J. The question becomes then only one of discretion. Inasmuch as by virtue of the provisions of our Companies Ordinance, C.O., 1915, ch. 61, a remedy is given to the plaintiffs against the directors which can only be applied in a certain way which involves the need of a judgment and execution against the company with a return by the sheriff, which remedy will be lost unless the action, which cannot be begun against the directors until after the sheriff's return, be begun within a year after the director has ceased to be such, I think the discretion should be exercised by permitting the proceedings to be taken but simply so far as is necessary to accomplish the purpose indicated. In other words, the sheriff should not be permitted to levy under the writ of execution but only to make the return to satisfy The Companies Ordinance. I would therefore dismiss the appeal with costs. BECK, J.-This is an appeal from an order of Mr. Clarry, K.C., Master in Chambers at Calgary, referred to this Court by Mr. Justice Hyndman. An action was begun by the plaintiff against the defendant company for wages alleged to be due on August 31, 1918. Judgment was entered in default on January 18, 1919. On February 6, 1919, an order was made winding up the defendant company. On a date subsequent to the issue of the winding-up order the judgment entered by the plaintiffs against the defendant company was set aside by order of Mr. Justice Stuart. By the terms of the order of the Master in Chambers, leave was given to the plaintiffs to proceed with their action against the defendant company notwithstanding the issue of the winding-up order. The appellant submits that the Master erred in granting this order. In substance the appellant's argument is that this is not a case in which the Court ought to give leave to proceed even to judgment under sec. 22 of The Winding-up Act, R.S.C., 1906, ch. 144, especially in view of the principles laid down in the English cases, and of the fact that the admitted purpose of recovering judgment in the action is to look ultimately to the directors, inasmuch as that purpose cannot be achieved, *See [1919] W.W.R. 740. because, as he contends, an execution issued on the judgment would be absolutely void under sec. 23 and leave to proceed upon it cannot be given under sec. 22-notwithstanding English decisions to that effect-and therefore the directors cannot be reached under sec. 54 of The Companies Ordinance, ch. 20 of 1901; and in the result no good purpose would be achieved by granting the leave which the plaintiff asks and costs would be thrown away. The two sections of the Dominion Winding-up Act chiefly in question are 22 and 23. "22. After the winding-up order is made, no suit, action or other proceeding shall be proceeded with or commenced against the company, except with the leave of the court and subject to such terms as the court imposes. "23. Every attachment, sequestration, distress or execution put in force against the estate or effects of the company after the making of the winding-up order shall be void." Cassels, J. had to consider these two sections in Richelieu & Ontario Nav. Co. v. Steamship "Imperial" (1909) 12 Exch. C.R. 243. I interpret these sections as he did. Practically similar provisions are to be found in secs. 87 and 163 of the English Companies Act, 1862 (25-26 Vict., ch. 89). This Act became the Companies (Consolidation) Act, 1908, and sec. 87 of the earlier Act became sec. 142 of the Act of 1908 and sec. 163 became sec. 211. Buckley in his work on Companies says (8th ed., at p. 274; 9th ed., p. 329): "By s. 163 [now 211-our sec. 23], where a company is being wound up by, or subject to the supervision of, the Court, any attachment, sequestration, distress or execution put in force against the estate or effects of the company after the commencement of the winding-up shall be void to all intents. "But it was decided in 1864 (In re Exhall Mining Co., 4 De G. J. & S. 377) that that section [163 (211-23)] is to be read with and is controlled by the 85th and 87th [140 and 142-22] and that their joint effect is to put the creditor who desires to proceed to execution after the winding-up order to App. Div. 1919 Risler V. Alberta Newspapers Ltd. Beck, J. |