McLean v. Hannon

McLean v. Hannon

The trial judge erred by requiring the sheriff to produce the judgment as a prerequisite to defending on the plea of no property/no possession; the proper approach was to leave to the jury the determination whether the plaintiff had established title or a right of possession, and because that issue was withdrawn from the jury the judge misdirected them; appeal allowed.

Citation
(1879) 3 SCR 706
Parties
Appellant (high Sheriff of Cumberland, N.s.): Roderick McLean; Respondent (plaintiff): Michael Hannon
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
4 June 1879
Procedural Posture
Action of Trover (conversion) / Appeal to Supreme Court of Canada From Supreme Court of Nova Scotia
Outcome
Appeal allowed with costs
Legal Topics
Trover, Conversion, Execution by Sheriff, Burden of Proof, Right of Possession, Misdirection of Jury
Source Language
English
Contract Property Civil Procedure Trover Conversion Execution by Sheriff Burden of Proof Right of Possession +1 more

Case Brief

Summary, issues, holding and outcome

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Parties

Roderick McLean

Appellant (high Sheriff of Cumberland, N.s.)

Michael Hannon

Respondent (plaintiff)

Procedural Posture

Action of Trover (conversion) / Appeal to Supreme Court of Canada From Supreme Court of Nova Scotia

Legal Issues

  1. 1 Whether the sheriff was required to produce the judgment on which the execution issued to justify seizure when a third party claims title
  2. 2 Whether the plaintiff proved title or a right of possession sufficient to maintain trover against the sheriff
  3. 3 Whether the trial judge misdirected the jury by removing the issue of title from their consideration

Ratio Decidendi

The trial judge erred by requiring the sheriff to produce the judgment as a prerequisite to defending on the plea of no property/no possession; the proper approach was to leave to the jury the determination whether the plaintiff had established title or a right of possession, and because that issue was withdrawn from the jury the judge misdirected them; appeal allowed.

Court Disposition

Appeal allowed with costs

Orders

  • Appeal allowed with costs
  • Verdict for plaintiff set aside