Mylius v. Jackson

Mylius v. Jackson

The plea denying that the defendant entered into partnership (including 'or at any other time') was a sufficient traverse, placing the burden on the plaintiff to prove the partnership; the plaintiff failed to prove the partnership and accordingly the appeal is allowed and the action dismissed with costs. An...

Source-derived case information.

Citation
(1894) 23 SCR 485
Parties
Plaintiff / Respondent: Margaret Jackson; Defendant / Appellant: Celia Mylius; Defendant: A. J. Jackson
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
21 May 1894
Procedural Posture
Action (partnership Claim) / Appeal to the Supreme Court of Canada From the Supreme Court of British Columbia
Outcome
Appeal allowed; judgment of the court below reversed; action dismissed with costs.
Legal Topics
Sufficiency of Traverse, Negative Pregnant, Proof of Partnership, Admissions in Pleadings, Timing of Objections
Source Language
english
Partnership Pleadings Civil Procedure Appeal Sufficiency of Traverse Negative Pregnant Proof of Partnership Admissions in Pleadings +1 more

Source-derived case record

Summary, issues, holding and outcome

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Parties

Margaret Jackson

Plaintiff / Respondent

Celia Mylius

Defendant / Appellant

A. J. Jackson

Defendant

Procedural Posture

Action (partnership Claim) / Appeal to the Supreme Court of Canada From the Supreme Court of British Columbia

Legal Issues

  1. 1 Whether the defendant's denial that she entered into partnership was a sufficient traverse to put the plaintiff to proof
  2. 2 Whether an objection to the insufficiency of a traverse can be first raised on appeal after a trial where the issue was treated as having been joined
  3. 3 Whether the alleged partnership was proved

Ratio Decidendi

The plea denying that the defendant entered into partnership (including 'or at any other time') was a sufficient traverse, placing the burden on the plaintiff to prove the partnership; the plaintiff failed to prove the partnership and accordingly the appeal is allowed and the action dismissed with costs. An objection to the sufficiency of the traverse cannot be raised for the first time on appeal when the trial proceeded on the assumption the traverse was sufficient.

Court Disposition

Appeal allowed; judgment of the court below reversed; action dismissed with costs.

Orders

  • Appeal allowed
  • Judgment of the court below reversed