Regarding our joint note in the Bank of Hamilton, will you please see the bank and ask a little more time in order that we may collect from our outstanding accounts, and again, "I trust in a short time to be able to remit you $2,000 to $3,000 to pay on account of our note in Hamilton Bank." On the 3rd January, 1884, in a letter of that date to Henshaw, the defendant, among other things, thus refers to the contents of the above letter of the 22nd December: I wrote the president as to the payment out of the account of Pacific Railway Salvage account as proposed in his letter of 22nd December, 1883, and $1,000 out of Typo. account, then I think I can get them to give us time until calls come in from other parties. But to keep faith with the bank to whom I shewed Mr. Herriman's letter of 22nd December, this must be done. I understand Pacific account is paid. This $2,000 should be remitted, send me marked cheque without fail and see my letters to president are answered. Now, up to this time, it is perfectly plain that the defendant regarded, and dealt with, the note as a good note, the property in which was in the bank, to whom the defendant was liable as a joint and several maker, and that he negotiated with the bank to procure it, and did procure it, to abstain from sueing upon the note for several months, for it was not put in suit until the 14th February, 1884; and all this took place at a time when, as the defendant now asserts, the bank, if it had carried into execution its original threat of suit, could have readily realized payment out of the assets of the company. Then in June, 1884, in order to prevent the Bank of Halifax obtaining satisfaction of a claim they had against the "Relief," which was libelled in the ViceAdmiralty Court at Halifax, the defendant intervened and claimed under the mortgage executed in favour of himself and his co-makers of the promissory note of the 13th October, and succeeded in such intervention and claim. In the course of the proceedings in the Vice-Admiralty Court he made the affidavit, referred to by Chief Justices Hagarty and Galt in the courts below, which states the circumstances attending the making of the note and the position in relation and the fact of its being negotiated with and 1888 HARVEY บ. BANK OF HAMILTON. Gwynne J. 1888 HARVEY v. discounted by the Bank of Hamilton, to whom the defendant was liable as a joint and several maker substantially as I have above stated the facts to be. I omit all mention BANK OF HAMILTON. of the contents of the assignment of the mortgage itself to the bank, because that assignment was executed by the Gwynne J. mortgagees and accepted by the bank without prejudice to the rights of either of the parties to such assignment. Upon the above state of facts of the case, there can be no doubt that the defendant's co-makers acted in the negotiation of the note to the bank, and in the receipt and disposition of the proceeds arising from the discount of it, by and with the authority and concurrence of the defendant, and that he therefore is as responsible for their acts to the same extent as if he had himself personally procured the bank to discount the note, and had himself received the proceeds and had applied them as they were applied in the interest of the company, of which the makers of the note were the directors, agents and managers. The case, therefore, is simply one in which, as the note cannot be declared upon in an action at the suit of the bank as a negotiable instrument and by the lex mercatoria transferable by endorsement, equitable relief is sought as upon a promissory note intended by the makers to have been made as a negotiable note, but which by mere inadvertence and mistake was not expressed to be payable to the order of the payees, and was issued by the makers as negotiable, and was disposed of as such by them with the payees' endorsement thereon to the plaintiffs, who, without having observed the defect in the note, discounted it as a negotiable promissory note and paid the proceeds into the hands of the makers who had the disposition thereof. Under such circumstances I can entertain no doubt that a court administering equity must grant the relief sought and will not permit the defendant to say that a note so issued and negotiated was not negotiable. The case of Graham v. Johnson (a) has been relied upon as an authority in favour of the defendant's contention that he (a) L.R. 8 Eq. 36. 1888 HARVEY v. HAMILTON. can dispute all liability to the plaintiffs, but the circumstances of that case are very distinguishable from the present. The bond, which was the instrument upon the faith BANK OF of which the monies were advanced by the assignee, was never intended to be a negotiable instrument, nor was it dealt Gwynne J. with by any of the parties as if it was. Nor were the monies advanced upon it by the assignee negotiated for by the obligor with the assignee, nor were the monies which the assignee advanced upon the bond paid by him into the hands of the obligor for the purpose of reaching through him the assignor and obligee; as the monies in the present case were paid by the bank into the hands of the makers of the note, which they discounted with the plaintiffs as a negotiable instrument. The appeal must, in my opinion, be dismissed with costs. Appeal dismissed with costs. Solicitors for the appellants: Crerar & Muir. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Life insurance-Policy-Memo. on margin-Want of countersigna- A policy of life insurance sued on had in the margin the following Agent." This memo, was not filled up, and the policy was not, in fact, countersigned by the agent. The case was first tried before McDonald C.J., without a jury, and a judgment entered in favour of the plaintiff was affirmed by the Supreme Court of Nova Scotia, but on appeal to the Supreme Court of Canada the judgment was set aside and a new trial ordered (10 Can. S.C.R. 92). The second trial was before McDonald C.J., and a jury, when a judgment was entered in favour of the plaintiff on the findings of the jury. Upon appeal to the Supreme Court of Nova Scotia this judgment was affirmed, but a further appeal to the Supreme Court of Canada was allowed, and a new trial ordered (13 Can. S.C.R. 218). The third trial was before Townshend J., and a jury, and a judgment was again given for the plaintiff upon the findings of the jury. This judgment was affirmed by the Supreme Court of Nova Scotia, and on appeal to the Supreme Court of Canada. Held, Gwynne J. dissenting., that the judgment of the Supreme Court of Nova Scotia should be affirmed and the appeal dismissed with costs. Held, per Strong J., that nothing but strictly legal evidence having been submitted to the jury, and the whole question being one of fact, the third verdict in favour of the plaintiff should be sustained. *PRESENT:-Sir W. J. Ritchie C.J., and Strong, Fournier, Taschereau and Gwynne JJ. Held, per Gwynne J., that evidence by a witness of an admission 1888 of a deceased agent of the company that he had received a CONFEDERApremium upon the policy in question, when the agent had in TION LIFE his evidence at the first trial denied that he had received the ASSOCIATION บ. said premium, and the witness at the same trial had not con- OF CANADA tradicted him, could not be received in evidence as an admission O'DONNELL. of the defendants, and had no binding effect upon them. APPEAL from a judgment of the Supreme Court of Nova Scotia affirming a judgment of the trial judge in favour of the plaintiff. This was an action brought to recover $3,000 payable on a policy of life insurance made by the Confederation Life Association, bearing date the 1st day of October, 1872, in favour of William Alphonsus O'Donnell. The policy recited the payment of the premium, $48.06. On the margin of the policy there was printed the memorandum: "This policy is not valid unless countersigned by agent Countersigned this day of at Agent." The memorandum was not filled up, and the policy was not countersigned by the agent. The case was first tried before McDonald C.J., in the month of November, 1879, when he gave judgment against the defendants for $3,000. The trial judge in his reasons for judgment said: The evidence shews that the parents of the assured, three days after his death, found the policy in his chest of drawers. It is dated the 1st October, 1872, and the father says that he saw it in the hands of the deceased on the 29th day of November following. He says that at that date he counted the premium money into the hands of his son, who, he says, went to the office of Allison, the agent of the defendant company, and on his return shewed the policy to the witness. After the death of the son the father called upon the agent, who after putting off payment of the claim for several weeks, at last refused to pay at all. The witness says that Allison never told him that the policy was only given to his son to read, which he ought to have told him at once if that were the fact. Allison in his evidence does not contradict this fact, and therefore it may be assumed that the refusal to pay the claim was not then put upon that ground although the plaintiff was not told by Allison |