Clergue v. Humphrey

Clergue v. Humphrey

Appeal dismissed: a plaintiff in an action on a foreign judgment may plead the original consideration; where a promoter obtained a loan for a company not yet in existence the promoter was personally the principal debtor and therefore primarily liable on the note; the defendant's statute of limitations defence failed because the action was not barred under the applicable commencement rules.

Citation
(1900) 31 SCR 66
Parties
Defendant Appellant: Francis H. Clergue; Plaintiff Respondent (executor of David Bugbee, Deceased): Samuel F. Humphrey; Plaintiff Respondent (executor of David Bugbee, Deceased): William S. Adams
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
13 November 1900
Procedural Posture
Appeal Action on Foreign Judgment With Claim on Original Consideration / Supreme Court of Canada on Appeal From the Court of Appeal for Ontario
Outcome
Appeal dismissed with costs; judgment for plaintiffs on the promissory note affirmed.
Legal Topics
Enforcement of Foreign Judgments, Original Consideration, Promoter Personal Liability, Statute of Limitations, Guarantor Vs Principal Liability
Source Language
English
Civil Procedure Conflict of Laws Commercial Law Agency and Promoter Liability Enforcement of Foreign Judgments Original Consideration Promoter Personal Liability Statute of Limitations +1 more

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Parties

Francis H. Clergue

Defendant Appellant

Samuel F. Humphrey

Plaintiff Respondent (executor of David Bugbee, Deceased)

William S. Adams

Plaintiff Respondent (executor of David Bugbee, Deceased)

Procedural Posture

Appeal Action on Foreign Judgment With Claim on Original Consideration / Supreme Court of Canada on Appeal From the Court of Appeal for Ontario

Legal Issues

  1. 1 Whether a plaintiff in an action on a foreign judgment may include a count on the original consideration notwithstanding the Judicature Act
  2. 2 Whether the promoter who obtained a loan for a company not yet in existence was a mere guarantor or the principal debtor
  3. 3 Whether the limitation period was attracted by date of issue of the writ or date of filing the statement of claim

Ratio Decidendi

Appeal dismissed: a plaintiff in an action on a foreign judgment may plead the original consideration; where a promoter obtained a loan for a company not yet in existence the promoter was personally the principal debtor and therefore primarily liable on the note; the defendant's statute of limitations defence failed because the action was not barred under the applicable commencement rules.

Court Disposition

Appeal dismissed with costs; judgment for plaintiffs on the promissory note affirmed.

Orders

  • Appeal dismissed with costs.
  • Judgment in favour of plaintiffs on the promissory note upheld.