Smith v. McLean

Smith v. McLean

The affidavit satisfied the statutory requirement because it referred to the bill of sale which itself stated the grantor's occupation, thereby identifying the deponent with the grantor; moreover, the onus is on the challenger to prove, by direct evidence, that the grantor had an occupation which was not stated.

Citation
(1892) 21 SCR 355
Parties
Plaintiff/appellant: A. & W. Smith & Co.; Defendant/respondent: George W. McLean
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
10 October 1892
Procedural Posture
Civil Appeal (bill of Sale Dispute) / Appeal to the Supreme Court of Canada From the Supreme Court of Nova Scotia
Outcome
Appeal allowed; judgment of the Supreme Court of Nova Scotia reversed; judgment of trial court in favour of plaintiffs restored.
Legal Topics
Bills of Sale, Affidavit of Bona Fides, Statutory Interpretation, Burden of Proof
Source Language
English
Commercial Law Property Law Secured Transactions Evidence Bills of Sale Affidavit of Bona Fides Statutory Interpretation Burden of Proof

Case Brief

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Parties

A. & W. Smith & Co.

Plaintiff/appellant

George W. McLean

Defendant/respondent

Procedural Posture

Civil Appeal (bill of Sale Dispute) / Appeal to the Supreme Court of Canada From the Supreme Court of Nova Scotia

Legal Issues

  1. 1 Whether an affidavit accompanying a bill of sale complies with statutory form when it omits the deponent's occupation but refers to the bill of sale where the occupation appears
  2. 2 Whether the onus lies on the party attacking the validity of a bill of sale to prove that the grantor had an occupation not stated in the affidavit
  3. 3 Whether the statutory requirement to follow a prescribed form must be strictly literal or may be satisfied 'as nearly as may be'

Ratio Decidendi

The affidavit satisfied the statutory requirement because it referred to the bill of sale which itself stated the grantor's occupation, thereby identifying the deponent with the grantor; moreover, the onus is on the challenger to prove, by direct evidence, that the grantor had an occupation which was not stated.

Court Disposition

Appeal allowed; judgment of the Supreme Court of Nova Scotia reversed; judgment of trial court in favour of plaintiffs restored.

Orders

  • Appeal allowed with costs.
  • Judgment of the Supreme Court of Nova Scotia reversed.