Springer v. Exchange Bank of Canada/Barnes v. Exchange Bank of Canada

Sir W. J. RITCHIE C.J.-The breach of duty complained of has no connection with the dealing of the bank with the stocks taken in payment of debts with a view to saving themselves from loss, but the breach of duty complained of is based upon the alleged misapplication of the money of the bank placed in charge, and under the control, of Murray the cashier.

I think there is clear proof, in this case, that Murray drew cheques for his private purposes and thereby appropriated the funds of the bank to his own use to an amount greater than the penalties of the two bonds, and such appropriation was in no way authorized sanctioned by the directors.

I therefore agree with the learned Chief Justice, that the defaults of the Ritchie C.J.cashier are sufficiently proved, and that no legal grounds have been shown to exonerate the sureties; and therefore the appeal should be dismissed.

J.-I am of opinion that this appeal should be dismissed for the reasons given by the court below. FOURNIER J concurred.

HENRY J.-I entertained some doubts on the argument, and still have doubt on the matter, but under all the circumstances of the case I am inclined to agree with the rest of the court that the sureties are not relieved from liability and that the appeal should be dismissed.

J.-Coucurred.

J.-It is unnecessary for us to express an opinion whether or not, assuming that the evidence Mr. Murray could be implicitly relied upon, his sureties would be released from all liability under their bonds, for I entirely concur in the opinion of the Chief Justice of the Court of Appeal for Ontario that little weight can be attached to that evidence, and apart from it there can be no doubt of the liability of the sureties. If Mr. Murray's statements are indeed true, it is unfortunate for himself and for his sureties that he should not have procured at least some evidence corroborative of his own evidence of the irregular and in some res- SUPRElfE COURT OF CANADA.

pects illegal transactions which he accuses himself as having been engaged in at the instance of the directors of the bank whose trusted cashier he was, so as to bring home against the instigators of these transac- ~CANADA. tions a conviction of the truth of the charges which, " after having deserted his post and absconded from the country, he now makes against them.

As to the point raised by the defendant Barnes that the death of his testator terminated his contract suretyship it is also unnecessary to express an opinion for two reasons, namely, 1st.

No such point is raised upon the pleadings, on the contrary, in the only answer of the defendant Barnes which is in the case laid before us he speaks of himself as the person who and not his testator had become Murray's security, and

2nd. Because by the evidence of the inspector (which is not disputed) it appears that Mr. Murray at the time of G-eorge Barties's death which now appears to have been on the 30th June, 1877, was a defaulter to an amount'in excess of the amount recoverable under the bond; for these reasons, I am of opinion that the appeals in both cases should be dismissed with costs.

Appeal dismissed with costs.

YOL. XIV.]

*March 5.

(PLAINTIFFS) .....................

' Nov.

Dec.20. JOHN HOWE AND OTHERS (DEFEN- R

DANTS)... .............

ON APPEAL FROM THE EQUITY COURT OF NEW BRUNSWICK.

Appeal-Direct from Equity Court-U. S. C. ch. 135 s. 26-Special circumstances- Practice-Judgment of Privy Council-Re-payment of costs.

An appeal came before the Supreme Court, by consent, from the decision of the Judge in Equity of New Brunswick, without an intermediate appeal to the Supreme Court of the province, and, after argument, was dismissed (1).

The judgment of the Supreme Court was subsequently reversed by the Privy Council and the case sent back to the Judge in Equity to make a decree. The plaintiffs being dissatisfied with the decree pronounced by the Judge in Equity applied for leave to appeal direct under R. S. C. ch. 135 a. 26 therefrom.

, that under the circumstances of the case such leave should be granted.

Where a judgment of the Supreme Court of Canada has been reversed by the krivy Council the proper manner of enforcing the judgment of the Privy Council is to be obtain an order making it a rule of the Supreme Court of Canada.

Where such judgment of the Privy Council was made a rule of court the court ordered the re-payment by one of the parties of costs received pursuant to the judgment so reversed.

PRESENT-Strong, Fournier, Henry, Taschereau and Gwynne JJ. (1) 9 Can. S. C. R. 617.