Jones v. Kinney

Jones v. Kinney

Majority held that the mortgagor's promise to give security "in case anything should happen" meant in contemplation of insolvency, the mortgage was executed when insolvency was imminent and within thirty days before writ of attachment so it was void under s.133 of the Insolvent Act of 1875; the Merchant Shipping Act...

Source-derived case information.

Citation
(1885) 11 SCR 708
Parties
Appellant: Thomas Culter Jones; Appellant: Ambrose Snow; Appellant: Thomas B. Flint; Respondent (assignee): Joseph R. Kinney
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
12 May 1885
Procedural Posture
Appeal From Supreme Court of Nova Scotia (insolvency/mortgage) / Final Judgment on Appeal to the Supreme Court of Canada
Outcome
Appeal dismissed (majority); mortgage set aside
Legal Topics
Fraudulent Preference, Mortgage of Ship Shares, Assignee Rights, Prior Agreement to Secure Advances, Statutory Construction, Conflict Between Imperial and Colonial Statutes
Source Language
english
Bankruptcy and Insolvency Maritime/shipping Law Equity Fraudulent Preference Mortgage of Ship Shares Assignee Rights Prior Agreement to Secure Advances Statutory Construction +1 more

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Parties

Thomas Culter Jones

Appellant

Ambrose Snow

Appellant

Thomas B. Flint

Appellant

Joseph R. Kinney

Respondent (assignee)

Procedural Posture

Appeal From Supreme Court of Nova Scotia (insolvency/mortgage) / Final Judgment on Appeal to the Supreme Court of Canada

Legal Issues

  1. 1 Whether the mortgage was made in contemplation of insolvency and therefore void under s.133 of the Insolvent Act of 1875
  2. 2 Whether a prior agreement to give security could validate a transfer made in contemplation of insolvency
  3. 3 Whether the Merchant Shipping Act prevents an assignee under the Insolvent Act from impeaching a registered ship mortgage

Ratio Decidendi

Majority held that the mortgagor's promise to give security "in case anything should happen" meant in contemplation of insolvency, the mortgage was executed when insolvency was imminent and within thirty days before writ of attachment so it was void under s.133 of the Insolvent Act of 1875; the Merchant Shipping Act did not prevent the assignee from impeaching such a transfer; appeal dismissed and mortgage set aside.

Court Disposition

Appeal dismissed (majority); mortgage set aside

Orders

  • Appeal dismissed with costs
  • Decree in favour of plaintiff assignee; mortgage set aside and registry cancelled