Smith v. McLean, (1892) 21 SCR 355

Supreme Court of Canada

Smith v. McLean (1892) 21 SCR 355

Date: 1892-10-10

A. & W. Smith & Co. (Plaintiffs)

Appellants

And

George W. McLean (Defendant)

Respondent

1892: May 11 12; 1892: Oct. 10.

Present:—Strong, Taschereau, Gwynne and Patterson JJ.

(Sir W. J. Ritchie C.J. was present at the argument but died before judgment was delivered.)

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

Bill of sale—Affidavit of bona fides—Adherence to statutory form—Description of grantor—R. S. N. S. 5th ser., c. 92, ss. 4 and 11.

The act in force in Nova Scotia relating to bills of sale (R. S. N. S. 5th ser. c. 92) requires by section 4 that every such instrument shall be accompanied by an affidavit by the grantor, and section 11 provides that the affidavit shall be, as nearly as may be, in the form given in schedules to the act. The form prescribed begins as follows: I, A. B., of.................., in the County of............ (occupation) make oath and say. An affidavit accompanying a bill of sale having omitted to state the occupation of the grantor:

Held, per Strong, Gwynne and Patterson JJ. that as the affidavit referred in terms to the instrument itself, in which the occupation of the deponent was stated, the statute was complied with.

Per Taschereau J. The onus was upon the persons attacking the bill of sale to prove, by direct evidence, that the grantor had an occupation which they had failed to do.

The judgment of the Supreme Court of Nova Scotia was reversed.

Appeal from a decision of the Supreme Court of Nova Scotia reversing the judgment of the trial judge in favour of the plaintiffs.

The plaintiffs are merchants of the city of Halifax who took a bill of sale from one Cunningham, of Sable Island, Lunenburg Co., as security for a debt. The statute governing bills of sale, R. S. N. S. 5th ser. ch. 92, provides that such an instrument must be accompanied by an affidavit "as nearly as may be" in the form given in a schedule. The affidavit in this case conformed to the statute in every respect save one,

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namely, that the occupation of the deponent was not given, the form in the schedule being "I, A. B., of ................, in the County of............... (occupation) make oath and say," etc. W. C. Silver & Co., of Halifax, judgment creditors of Cunningham, seized under execution goods covered by the bill of sale and the same were replevied by the plaintiffs. On the trial of the action of replevin judgment was given for plaintiffs, the trial judge holding that if the mortgagor had an occupation it was sufficiently stated in the bill of sale itself to which reference was made in the affidavit. The full court reversed this decision holding that the statute had not been complied with and that the affidavit was bad on the authority of Archibald v. Hubley[1]. The plaintiffs appealed.

Whitman for the appellants. The onus is on the parties attacking the bill of sale to show that the mortgagor had an occupation. Sutton v. Bath[2].

The evidence shows that he had no occupation, Trousdale v. Sheppard[3]; Ex parte Chapman[4]; Smith v. Cheese[5].

The object of requiring a description is to identify the party and he is sufficiently identified in this bill of sale. See Ex parte Wolfe[6].

This act has been construed to mean that the occupation is only to be stated when there is one; Cunningham v. Morse[7]; and it has been amended subject to such construction thus showing the intention of the legislature to approve of it. Windham v. Chetwynd[8]

Silver for the respondent cited the following cases on the contention that the statute must be strictly

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complied with. Pickard v. Bretz[9]; Castle v. Downton[10]; Allen v. Thompson[11]; In re Lowenthal[12].

As to burden of proof the learned counsel argued that Sutton v. Bath[13] and similar cases cited only put the onus on the attacking party when he claimed that a wrong description had been given but not when none was given.

STRONG and GWYNNE JJ. concurred in the judgment of Mr. Justice Patterson.

TASCHEREAU J.—I am of opinion, first, that the onus to allege and prove that the grantor of the bill of sale had an occupation was upon the defendant, now respondent; and secondly, that of such a fact direct evidence was required and not mere inferences from documents in the record.

I would allow the appeal.

PATTERSON J.—We may assume for the purpose of this case that the word "occupation," which appears in parenthesis or between brackets in the blank left in the form of affidavit given by the schedule of the statute, is meant to show that the deponent's occupation is to be stated in the affidavit, perhaps with some idea of identifying him with the grantor of the instrument to which the affidavit relates; but the facts of this case make it unnecessary at present to consider what would be the effect on the validity of the instrument of the grantor having no occupation, or of the omission to state his occupation, the blank being left unfilled, or, as might easily happen, some other equally apt description of the deponent being substituted. It

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is, I think, correctly remarked by Mr. Justice Graham in the court below that it appears from the deed executed by the grantor that he had an occupation and was a trader. That is a reasonable inference of fact from the deed which the plaintiff claims under, and which in this particular is legitimate evidence against the plaintiff. But whatever the deed shows respecting the grantor the affidavit also shows respecting the deponent who swears that he is the same person as the grantor. By this reference to the deed the occupation is shown and the statute satisfied.

On this short ground I think the appeal should be allowed.

Appeal allowed with costs.

Solicitor for appellants: Alfred Whitman.

Solicitor for respondent: Alfred E. Silver.