Benallack v. Bank of British North America

Benallack v. Bank of British North America

Section 2 of ch.38 removes the doctrine of pressure but does not dispense with the need for knowledge and concurrence of fraudulent intent by both assignor and assignee; because the bank lacked such knowledge or concurrence the assignments and mortgage were not void as preferential, so the appeal fails.

Citation
(1905) 36 SCR 120
Parties
Plaintiff Appellant: Howard Benallack; Plaintiff Appellant: Edward Lafrance; Defendant Respondent: Bank of British North America; Defendant Respondent: Edward O. Finlaison; Defendant Respondent: Charles Bossuyt
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
2 May 1905
Procedural Posture
Civil Appeal (preferential Assignments) / Supreme Court Judgment on Appeal From Territorial Court of the Yukon
Outcome
Appeal dismissed with costs; judgment of Territorial Court affirmed.
Legal Topics
Preferential Assignment, Fraudulent Preference, Pressure Doctrine, Knowledge and Intent, Usury/interest Recovery
Source Language
English
Property Law Insolvency Law Banking Law Preferential Assignment Fraudulent Preference Pressure Doctrine Knowledge and Intent Usury/interest Recovery

Case Brief

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Parties

Howard Benallack

Plaintiff Appellant

Edward Lafrance

Plaintiff Appellant

Bank of British North America

Defendant Respondent

Edward O. Finlaison

Defendant Respondent

Charles Bossuyt

Defendant Respondent

Procedural Posture

Civil Appeal (preferential Assignments) / Supreme Court Judgment on Appeal From Territorial Court of the Yukon

Legal Issues

  1. 1 Whether assignments and mortgages given by an insolvent debtor are void as preferential under Yukon Consolidated Ordinances ch.38 ss.1-2
  2. 2 Whether sec.2 of ch.38 eliminates the doctrine of pressure and/or the requirement of assignee's knowledge and concurrence of intent
  3. 3 Whether the bank had knowledge of debtor's insolvency or concurred in intent to obtain unlawful preference

Ratio Decidendi

Section 2 of ch.38 removes the doctrine of pressure but does not dispense with the need for knowledge and concurrence of fraudulent intent by both assignor and assignee; because the bank lacked such knowledge or concurrence the assignments and mortgage were not void as preferential, so the appeal fails.

Court Disposition

Appeal dismissed with costs; judgment of Territorial Court affirmed.

Orders

  • Appeal dismissed with costs
  • Judgment of the Territorial Court of the Yukon affirmed (plaintiffs' action dismissed)