Cummings v. Taylor

Cummings v. Taylor

Although the assignment was declared void as against the creditors under 13 Eliz. c.5, the plaintiffs (judgment creditors) had no legal or equitable interest in the assigned debts without having taken statutory steps to make those debts exigible; therefore they were not entitled to an account or appointment of a receiver against the appellants for moneys received under the assignment, and the decretal orders for account and receiver could not be sustained though the declaration that the assignment was void stands.

Citation
(1898) 28 SCR 337
Parties
Appellant (preferred Creditor): William Cummings & Sons; Respondents (judgment Creditors): Robert Taylor and Bauld Gibson & Co.; Assignor (debtor): Neil McKinnon; Assignee (trustee Under Assignment): Selden W. Cummings; Preferred Creditor (payee): The Peoples' Bank of Halifax
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
6 May 1898
Procedural Posture
Appeal (assignment for Benefit of Creditors) / On Appeal to the Supreme Court of Canada (final Decision)
Outcome
Appeal allowed with costs; declaration that the assignment was void affirmed but orders for account and appointment of receiver set aside and amended in favor of appellants.
Legal Topics
Assignment for Benefit of Creditors, Preferential Payment to Creditors, Statute of Elizabeth (13 Eliz. C.5), Execution and Levy of Personal Property, Account and Appointment of Receiver
Source Language
English
Contract Insolvency Equity Property Fraudulent Conveyance Assignment for Benefit of Creditors Preferential Payment to Creditors Statute of Elizabeth (13 Eliz. C.5) +2 more

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Parties

William Cummings & Sons

Appellant (preferred Creditor)

Robert Taylor and Bauld Gibson & Co.

Respondents (judgment Creditors)

Neil McKinnon

Assignor (debtor)

Selden W. Cummings

Assignee (trustee Under Assignment)

The Peoples' Bank of Halifax

Preferred Creditor (payee)

Procedural Posture

Appeal (assignment for Benefit of Creditors) / On Appeal to the Supreme Court of Canada (final Decision)

Legal Issues

  1. 1 Whether the deed of assignment was void as against creditors under 13 Eliz. c.5
  2. 2 Whether judgment creditors could follow and obtain an account of moneys received by preferred creditors/assignee under a voidable assignment
  3. 3 Whether appellants as creditors and parties to the assignment could retain moneys or book debts received

Ratio Decidendi

Although the assignment was declared void as against the creditors under 13 Eliz. c.5, the plaintiffs (judgment creditors) had no legal or equitable interest in the assigned debts without having taken statutory steps to make those debts exigible; therefore they were not entitled to an account or appointment of a receiver against the appellants for moneys received under the assignment, and the decretal orders for account and receiver could not be sustained though the declaration that the assignment was void stands.

Court Disposition

Appeal allowed with costs; declaration that the assignment was void affirmed but orders for account and appointment of receiver set aside and amended in favor of appellants.

Orders

  • Appeal allowed with costs to the appellants.
  • Declaration that the deed of assignment was fraudulent and void as against the creditors is affirmed.