1889 DANKS v. PARK. nent evidence to fix him with liability to persons who had made sales to the firm believing from his conduct that he was still a member of it, but nothing of the kind is pretended here, all that Gardner or the plaintiff had information of was gleamed from the report of a mercantile agency. I do not think it necessary, under these circumstances, to deal with the other questions argued as to the plaintiff being a holder for value, although the case of Misa v. Currie (e) would seem fully to support the plaintiff's contention. For the reasons stated I think we ought to dismiss the appeal. HAGARTY C.J.A., and PATTERSON J. A., delivered no written judgments, but concurred. Osler J.A.:-I think the appeal should be dismissed and the judgment below affirmed-on the ground that the note in question, which was fraudulently obtained from Dunham by Isaacs, was made after the partnership between Dunham and the defendant Park had been dissolved, and therefore at a time when Dunham had no authority to make it. The plaintiff had never dealt with the firm of J. E. Dunham & Co., they had no knowledge of the firm or of Park being a member of it, and their title to the note must depend upon Dunham's authority to bind Park by what he did. He had none, and therefore their claim fails. It seems unnecessary to determine the other objection to their title, viz.: That the evidence shews that the real makers of the note were the Montreal firm of J. E. Dunham & Co. I need only say that I have formed no opinion adverse to the view of the court below, and of Wilson, C.J., in Standard Bank v. Dunham (f), on that point. George C. Gibbons and David Mills appeared for the appellant. J. K. Kerr and Patterson appeared for the respondent. The only reasons for judgment in the Supreme Court of Canada were those of GWYNNE J.-The only question before us in this case is as to the liability of the defendant Park. The question is simply one of fact, and I entirely concur in the conclusion which the learned judge, who tried the case, arrived at upon the facts. The defendant J. E. Dunham carried on business in the city of Montreal as a dealer and importer in dye stuffs and chemicals under the name of J. E. Dunham & Co. In this company the defendant had no interest whatever, nor was he in any way connected with it. While carrying on this business at Montreal the defendant Dunham entered into partnership with Park for the purpose of carrying on the same business at Toronto under the name of J. E. Dunham & Co. While both of these firms were carrying on business separately and distinctly at Montreal and Toronto respectively, one Isaacs, by means of most unquestionable fraud practised upon the defendant Dunham, procured him to make the promissory note sued upon in the present action, together with several others payable to Isaacs under the name and style of L. Isaacs & Co. The transaction in respect of which these notes were made, was wholly with Dunham as representing the Montreal firm, the Toronto firm, in which alone the defendant Park was concerned, had no interest in the transaction; it was not a dealing in a matter of the business of the Toronto firm at all, The whole transaction was a fraud, but it was one between Isaacs and the defendant Dunham, as representing the Montreal firm. Isaacs may be presumed to have intended to Ihave affected Park by the fraud he was practising, but it was with Dunham as representing the Montreal, and not the Toronto, firm that he was dealing, and it was as representing the Montreal and not the Toronto firm that the defendant Dunham signed the notes in the name of J. E. Dun ham & Co. Isaacs passed off the note sued upon to one 1889 DANKS v. PARK. Gwynne J. Guerin under such circumstances that, if it was necessary to decide the point, I should have no difficulty in holding that Guerin had notice that the note was obtained by Isaacs by fraud. Isaacs then absconded and Guerin passed over the note to the plaintiff under somewhat equivocal circumstances also, but whether under circumstances which would make the plaintiff a holder for value, it is also unnecessary to decide, for the fact upon which the case turns, as found 1889 DANKS v. РАВК. Gwynne J. by the learned judge who tried the case, in whose finding as I have said, I entirely concur, is that the note was made by the Montreal, and not the Toronto, firm, and, therefore, the defendant Park can be no more affected by it than if he was sued upon a note made by another person of his own christian and surname. The plaintiff, therefore, whether he acquired the note for value given to Guerin or not cannot recover upon it against the defendant Park, and the appeal must be dismissed with costs. Appeal dismissed with costs. Solicitors for appellants: Gibbons, Macnab & Mulkern. Solicitors for respondent: Kerr, Macdonald, Davidson & Patterson. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Winding-up Act-Appointment of liquidators-Right to appoint another bank-Discretion of Judge. The Winding-up Act provides that the shareholders and creditors of a company in liquidation shall severally meet and nominate persons who are to be appointed liquidators, and the judge having the appointment shall choose the liquidators from among such nominees. In the case of the Bank of Liverpool the judge appointed liquidators from among the nominees of the creditors, one of them being the defendant bank. Held, affirming the judgment of the court below, that there is nothing in the Act requiring both creditors and shareholders to be represented on the board of liquidators; that a bank may be appointed liquidator; and that if any appeal lies from the decision of the judge in exercising his judgment as to the appointment, such discretion was wisely exercised in this case. APPEAL from a decision of the Supreme Court of Nova Scotia (a) affirming the judgment of Townshend J., appointing liquidators of the insolvent Bank of Liverpool. The Bank of Liverpool had been placed in insolvency under the provisions of the Insolvent Act of 1875, and amending Acts, and the Bank of Nova Scotia was the assignee. In 1884 the Bank of Nova Scotia filed a petition, praying that the said Bank of Liverpool be wound-up. *XVIII. Can. S.C.R. 707. **PRESENT:-Sir W. J. Ritchie C.J., and Strong, Fournier, Gwynne and Patterson JJ. (a) 22 N.S. Rep. 97. 14-SUP. CT. CAS. 1890 FORSYTH BANK OF After hearing arguments for and against the petition the This order was set aside on appeal to the Supreme Court of Canada (Mott v. Bank of Nova Scotia, re Bank of Liverpool) (b) upon the ground that secs. 99-103 of 45 Vict. ch. 23, as amended by 47 Vict. ch. 39, which require that a meeting of shareholders should be called, had not been complied with. Section 99 provides as follows: In the case of a bank the application for a winding-up order must be made by a creditor for the sum of not less than $1,000, and the court must, before making the order, direct a meeting of the shareholders of the bank, and a meeting of the creditors of the bank to be summoned, held and conducted as the court directs, for the purpose of ascertaining their respective wishes as to the appointment of liquidators. After the judgment of the Supreme Court of Canada, Townshend J., called a meeting of the creditors and shareholders when the creditors recommended as liquidators the Bank of Nova Scotia, John M. Smith and George Thomson, the last two having no interest in the insolvent bank, but the Bank of Nova Scotia was the principal creditor. The shareholders recommended H. F. Worrell, Alexander Forsyth and J. Newton Freeman, all three being shareholders or contributories of the insolvent bank. The creditors objected to the three persons nominated by the shareholders on the ground that they were contributories and had an interest directly opposed to the purpose of the liquidation proceedings, and further alleged that some of the parties nominated by the shareholders had been actively carrying on litigation to prevent the affairs of the bank being settled. The contributories strenuously opposed the appointment of the Bank of Nova Scotia, their opposition being chiefly based on what they claimed had been the past illegal, oppressive and hostile conduct of the Bank of Nova Scotia and its officers in all the proceedings which had taken place in regard to the insolvent bank. The contributaries further alleged that (b) 14 Can. S.C.R. 650. |