Morse v. Phinney

Morse v. Phinney

The omission of the county in the jurat to the affidavit accompanying the chattel mortgage was a substantive non‑compliance with R.S.N.S., c.92, s.4; that defect was not cured by the saving provision and therefore the affidavit (and the chattel mortgage) was void as against the execution creditor; Archibald v....

Source-derived case information.

Citation
(1894) 22 SCR 563
Parties
Appellant (defendant): J. Avard Morse; Respondent (plaintiff): Inglis Phinney
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
20 February 1894
Procedural Posture
Civil Appeal / Appeal to Supreme Court of Canada From Supreme Court of Nova Scotia
Outcome
Appeal allowed; judgment of the Supreme Court of Nova Scotia reversed; trial judgment dismissing the action restored.
Legal Topics
Affidavit of Bona Fides, Jurat Form and County Requirement, Section 11 Deviation/saving Provision, Validity of Chattel Mortgage
Source Language
english
Priorities and Hypothecs Chattel Mortgage Law Statutory Interpretation Evidence (jurat) Affidavit of Bona Fides Jurat Form and County Requirement Section 11 Deviation/saving Provision Validity of Chattel Mortgage

Source-derived case record

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Parties

J. Avard Morse

Appellant (defendant)

Inglis Phinney

Respondent (plaintiff)

Procedural Posture

Civil Appeal / Appeal to Supreme Court of Canada From Supreme Court of Nova Scotia

Legal Issues

  1. 1 Whether omission of the county in the jurat to the affidavit accompanying a chattel mortgage invalidates the affidavit and renders the mortgage void
  2. 2 Whether the statutory saving provision for slight deviations (section 11) cures the jurat defect
  3. 3 Whether Archibald v. Hubley controls or is distinguishable from Smith v. McLean

Ratio Decidendi

The omission of the county in the jurat to the affidavit accompanying the chattel mortgage was a substantive non‑compliance with R.S.N.S., c.92, s.4; that defect was not cured by the saving provision and therefore the affidavit (and the chattel mortgage) was void as against the execution creditor; Archibald v. Hubley was followed and the Supreme Court of Nova Scotia decision was reversed.

Court Disposition

Appeal allowed; judgment of the Supreme Court of Nova Scotia reversed; trial judgment dismissing the action restored.

Orders

  • Appeal allowed with costs.
  • Judgment of the Supreme Court of Nova Scotia reversed and trial judgment restored.