McLean v. Garland

McLean v. Garland

Majority: The deed's expressed consideration was distribution among all creditors; the assignee is not confined to the schedule where an omission was accidental and extrinsic evidence shows no intent to prefer; therefore the assignment was valid under R.S.O. c.118 s.2 and the omitted creditor is entitled to his...

Source-derived case information.

Citation
(1885) 13 SCR 366
Parties
Appellant: Daniel McLean; Respondent: Nicholas Garland
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
23 June 1885
Procedural Posture
Appeal (assignment for Benefit of Creditors) / Hearing and Judgment at Supreme Court of Canada on Appeal From Court of Appeal for Ontario
Outcome
Appeal allowed with costs; judgment of the Court of Appeal for Ontario and Common Pleas reversed
Legal Topics
Assignment for Benefit of Creditors, Preference Between Creditors, Schedule of Creditors, Rectification of Deeds, Priority of Creditors, Admissibility of Extrinsic Evidence, R.s.o. C.118 S.2 Interpretation
Source Language
english
Insolvency Property Law Equity Civil Procedure Statutory Interpretation Assignment for Benefit of Creditors Preference Between Creditors Schedule of Creditors +4 more

Source-derived case record

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Parties

Daniel McLean

Appellant

Nicholas Garland

Respondent

Procedural Posture

Appeal (assignment for Benefit of Creditors) / Hearing and Judgment at Supreme Court of Canada on Appeal From Court of Appeal for Ontario

Legal Issues

  1. 1 Whether an assignee is confined to distributing assets only to creditors named in the schedule annexed to an assignment deed
  2. 2 Whether an assignment is void under R.S.O. c.118 s.2 as showing an intent to prefer when a creditor is omitted from the schedule
  3. 3 Whether extrinsic evidence may be admitted to rebut a presumption of intent to prefer

Ratio Decidendi

Majority: The deed's expressed consideration was distribution among all creditors; the assignee is not confined to the schedule where an omission was accidental and extrinsic evidence shows no intent to prefer; therefore the assignment was valid under R.S.O. c.118 s.2 and the omitted creditor is entitled to his ratable share. Appeal allowed.

Court Disposition

Appeal allowed with costs; judgment of the Court of Appeal for Ontario and Common Pleas reversed

Orders

  • Appeal allowed with costs here and in the Courts below
  • Assignment held valid; assignee required to distribute ratably among all creditors including the inadvertently omitted creditor