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O^ -^ ■ ■«-!.■ <1 ..:r/3 o H ^ •"s'-» 'B, 2 ■••>iE ►?•• i «— -.re ^ -Sj S3 -.•!«■ _ - ^in -sr'-fic ■** OD 02 ■ -re ■ f5 ■ P • r^~-V ». Si- O p.. '■'2 ''^ S.. "^ - s £!:■ »— .> "-.: o ■-.; "J— I ' s""'"'' ' ■2 -.-ss ;■ ■*> ■ ps-sf- rt 2 o s eg B 2 r i w o B C? o B GC B -,—:.:© ^^ ?a-o: .o '-"Sij-P, ■ M;- .-Hi ''B-^2£--:r^5' ■B r^' O-.B "B ■ B'-* P -5 ■-B--cr rRlSAT WESTERN RAILWAY COMPANY v<. THE COMMERCIAL BANK. I Vankoughnet, C. — The facts in this case, so far as they are of any importance, are suflSciently set fortli in the judgment delivered by my brother Hagarty in the court below, and I need now mention only such of them as will render plain the reasons for the decision at which we have arrived. The appellants were incorporated as a company to construct and maintain a railway in Canada. The third section of the act 16 Victoria, chapter 3, relating to the company, after reciting "for the avoid- ance of doubt," declares and enacts, " that the company have had and shall have power and authority to borrow money from time to time for making and completing, maintaining ai.! working, the railway as they might or may think advisable, and to pledge the lands, tolls, revenues, and other property of the company, for the due payment thereof, and might and may make the bonds or debentures issued by the company for securing the payment of any sums so borrowed, or to be bor- rowed convertible into stock of the company on the terms and conditions expressed or to be expressed in such bonds or debentures, or in the bv-laws of the com- pany, and might and may insert in any bonds or debentures issued, or to be issued by them, such terms and conditions of any kind whatsoever as they might or may think most for the advantage of the said company." This, with the limitation prescribed by the 4th section of 22 Victoria, chapter 116, is the only provision of law which I can find that authorises the Great Western Railway Company to borrow money ; and, as will be seen from it, such borrowing is for the purposes proper of the company. The company conceiving that the Detroit and Milwaukie Railway running through the State of Michigan, and separated by the Detroit River from the extreme western terminus of the Great Western Railway would be an important feeder to it, and a most important connection in its business with the Western States, resolved upon advan- cing money for the completion of that line of road and its effective working ; and, accordingly, at a general meeting of the proprietors of the Great Western Rail- way Company, held in London, England, on the 1st of October, 1857, and at a meeting held at the company's office in Hamilton, Canada, on the 2nd of November, 1857, it was resolved, " That the directors be autho- rised to advance to the Detroit and Milwaukie Railway Company, such an amount not exceeding £150,000 sterling as may be necessary to ensure the completion of the railway across Michigan in connection with the Great Western Railway of Canada ; such advance being made as a temporary loan, and on sufficient security ; the expenditure of the same being subject to the control of the Great Western Railway Company." That the Great Western Railway Company had, at the time of the passing of this resolution, no right or power to appropriate their funds to such a loan or to borrow money to effect it, I think, no one will dispute. They were not empoVfered by the legislature to appropriate any portion of their capital and stock, or funds to sus- tain a railway or any enterprise in a foreign country or beyond the limits of their own road ; and, for the purposes of their railway only, were they authorised to borrow at all. I think also it cannot be doubted that any one contracting with them to advance money to the Detroit and Milwaukie Railway on the strength of such a resolution, or of any guarantee or contract that might have been made under it, could never have held the Great Western Railvyay Company responsible for such advance if made. Were the subject otherwise bpen to doubt, I think the statute 22 Victoria, chapter 116, section 11, removes it : for there, all parties, as also the legislature, seem to have considered that an act of parliament was required to legalise the advance which had been made under the resolution referred to. That section is in the following words : " And whereas the Great Western Railway Company, in order to form connections with railways in the United States of America, has to lay down its rails out of the province of Canada., and to provide facilities at stations and otherwise, for consolidating its traffic ; therefore the Great Western Railway Company shall have full power and authority to use its funds, by way of loan or other- wise, in providing proper connections, and in promoting its traffic with railways in the United States of North America, provided that no such expenditure shall be incurred unless sanctioned by a vote to that end of two thirds of the shareholders voting in person or by proxy at a general meeting of the shareholders specially called for that purpose ; provided always, that the power hereby granted shall not be construed so as to prevent any other railway company from using its funds in pro- viding the same connections, and promoting its traffic with railways in the said United States ; and provided also, that whenever any other railway company shall desire to make such connections, the said Great Western Railway Company shall be bound to assent to the same on equitable and reasonable terms ; and provided further, that the loan of seven hundred and fifty thousand dol- lars already made by the said Company to the Detroit and Milwaukie Railway Company is hereby declared to be lawful." It will be observed that while authority is thus given to lend money, no authority is given to borrow money for the purpose of lending or otherwise, and this is a most important distinction in my view. It is one thing to authorise a company to lend out of its own funds, but it is quite another thing to enable it to go beyond these and the amount of its authorised capital stock, and 6 incumber the undertaking with a load of deht which may utterly paralyse it and render it worthless to the stockholders and useless to the public, whose interests in such enterprises have a large part in legislative consideration. There are certain trading concerns, incorporated or not incorporated, the nature of whose business assumes, nay even requires, that they shall become borrowers or holders of moneys from others, at interest, or not, as may be agreed upon : and in such cases authority in them to that end is implied. But when a company is authorised to raise among subscribers to its stock a certain sum of money and therewith to build a road, I am not aware of, nor have we been referred to, any authority which decides that they need not by such subscription to stock procure the necessary funds, but that, without any legislative sanction therefor, they may borrow money for the purpose. If then the company could not without express au«^hority, borrow money to build it's own road, could it borrow money to build a road for some one else ? The statement of the proposition carries with it the answer. While we must, I think, treat the first loan of £150,000 sterling, to be the loan of $750,000 referred to in the statute of 22 Victoria, and ratified by it, it would not necessarily follow that the borrowing of it from the respondents was thereby justified. We cannot assume that the legislature knew how the loan had been effected, or that it had been obtained otherwise than out of the surplus funds of the company. It has been argued that the powers to borrow given to the company by the statute of 16 Victoria, enable the company to borrow money with which to make the loans authorised by the 11th section of 22 Victoria, chapter 116. In my own opinion this is not so, though 1 believe some of the members of the court take the contrary view. I think the company were authorised to use only its own funds for these loans, and could not create such funds by borrowing them. But, however this may be, we think the fair way to deal with the loans authorised under the resolution of the company already mentioned, and also under the resolution in England, of the 7th of October, 1858, by the proprietors there, confirmed by the resolution in Canada of the 2nd of November, 1858, to the effect " That the directors be authorised to advance to the Detroit and Milwaukie Railway Company a further sum of money not exceeding ,£100,000 sterling, to be expended by and under the control of the Great Western Railway Board of Direc- tors," is to assume that the company had in England properly provided or arranged for the funds, by an increase of share capital or otherwise, to meet those loans, and that the money was available there for that purpose. There is nothing to the contrary shewn, and I think we cannot infer that they contemplated or were doing any thing illegal in furnishing or procuring the money. I think also we should assume that these reso- lutions were regularly passed, and by proper authority : their legality has not been questioned before us. Adopting then this position, we must, I think, hold that the directors of the company as the authorised agents of the shareholders were to arrange how this money so agreed to be loaned was to bo advanced from time to time, as well in regard to amounts and times of advance, as to the method by which the money was to be procured from England to be made available in Canada, and in the locality where its expenditure was to take place. The body of shareholders could not discharge this ministerial duty, though it required the exercise of some judgment. The directors themselves, numerous as they were, could not collectively receive or disburse the money ; and hence it became necessary for them to select sub-agents through whose hands the money should pass, and who should be authorised to receive it. They did select for this purpose, Mr. Brydges, the managing director of the company, and 8 Mr. Reynolds^ who had charge in Canada of its finances. These gentlemen, for we may take it that they were acting in concert throughout, in the month of December, 1857, proposed to Mr. jBoss, cashier of the bank of the respondents, to advance to the Detroit and Milwaukio Railway Company sufficient money for their requirements, and exhibited to him the resolution of the Great Western Railway proprietory, sanctioning the loan of £150,000 sterling. What passed at this interview, at which Mr. ReynoldSf but not Mr. Bridges personally, was present, is narrated by the parties thereat in statements most opposing. This much, however, we can arrive at, that the final arrangement between the parties was that an account was to be opened in the name of the Detroit and Mil- waukie Railway Company, with the term " account Great Western Railway Company " superadded, and that any balances overdue on the account after crediting traffic receipts of the Detroit and Milwaukie road paid in were to be covered by bills of exchange on England, at least to the extent of the £150,000 sterling. An account in accordance with this arrangement was opened by the bank, and the moneys paid out upon it from time to time were so paid upon cheques, by or on behalf of the Detroit and Milwaukie Railway Company, and not the Great Western Railway Company. It is admitted, if not proved otherwise, that the bank had notice of the two resolutions of the Great Western Railway Company for the loans to the Detroit and Milwaukie Railway company, and on the strength of the first resolution the original arrangement was made. We are of opinion that the bank are entitled to recover {he amount of the loans authorised by these two resolutions, but no more. I do not think that the proprietors in England, nor perhaps the directors there or here contemplated the effecting" any loan in Canada to meet these amounts. Indeed we proceed on the assumption that they did not ; and that they had, or had arranged to have, the money in 9 hand in England. The evident intention was, that when there wete no surplus funds of the Great Western Railway Company, in Canada, which could be applied upon the loan authorised, bills should be drawn upon the company at home to procure the required amount. But, as I have already said, we must treat the directors as having authority to arrange the mode in which this should be done, and as having power to authorise, and as having authorised, Messrs. Brydges and Reynolds^ as their agents, to act here for them to that extent. These gentlemen then seem to have procured immediately from the respondents, and afterwards from time to time, as was required, money to satisfy these loans, upon the understanding and promise that any balance due to the bank after crediting moneys deposited on account should be re-paid or re-placed by exchange on England. Messrs. Brydges and Reynolds, we think, had received authority to draw bills of exchange to the amount of these loans, and might have done so, and sold them to the bank. Instead, however, of taking this course, they procured the money from the bank on the faith of this exchange being given. They in fact sold the bills with the promise to deliver them, and the bank advanced the money in anticipation of receiving them, and we think that that promise and that anticipation should be fulfilled ; and that for so much of the <£250,000 sterling named in the resolutions referred to as has not been re-paid to the bank, they, the respondents, should have a verdict, the jury having found upon evidence properly submitted to them, that the credit for the moneys so advanced was given to the Great Western Railway Company, and not to the Detroit and Milwaukie Railway Company, not- withstanding the form of account adopted. I cannot, however, part from this branch of the case without stating that I have had great difficulty in concurring in the right of the bank to receive any thing more than the $750,000 of loan made legal by legislation, and I 10 have still doubt as to whether the authority given by the statute of 22 Victoria authorised any such further loan. It gives the company power to lay down rails out of tlic province, and to provide facilities at stations, and otherwise, for consolidating its traffic; but I think it is open to very grave doubt whether they have authority to make loans to independent companies to complete their lino of road. If they have, I see nothing to prevent them extending aid for constructing a rail- way to the Pacific, whose traffic might pass over their road, and bo thus of great advantage to them; and so to any other roads, even to the building of them when it could bo shewn that their existence would be of benefit to the business of the Great Western Railway Company. I do not think that the sanction of the previous loan implies, and it certainly does not confer any authority to make another such loan, but if any thing t.;3 contrary. The legislature simply confirms what had been done, but it docs not say "go and do likewise," though I admit it is difficult to put any limitation on the loan of funds which the act permits ; but considering how foreign such application of the funds is to their use or destination, as contemplated by the charter of the company, I think this provision of law should receive as strict and limited a construction as is consistent with its terms. I do not see on what ground the sums advanced by the respondents, for the Detroit and Milwaukie Railway Com- pany, beyond the £250,000 sterling, can be recovered. The respondents had not only notice that the moneys they were advancing were to be expended for or by the Detroit and Milwaukie Railway Company, but they actually paid those moneys to the latter company, on cheques drawn on its behalf, as expressed on the face of them. They were bound to take notice of the act of parliament which gave the Great VVostern Railway Company authority to expend its funds out of the 11 province for the purposes referred to in the section of the ttct already quoted, and which provided tluit such expenditure could not be legally incurred unless sanc- tioned by a vote of two-thirds of the ahnreholdcrs; they knew that the shareholders had already passed two resolutions, limiting the amount of tlie loan which should be made by the one company to the other, and they did not know, and could not know, of any authority justifying a further advance, for none such existed. What right, then, had they dealing alone with two officers of the company, without ascertaining their authority, to charge or seek to charge their principals with such advances made for such a purpose ? Ordinarily agreements by corporations should be under their respective seals; exceptions being admitted in regard to such transactions in the course of their every . day business as would render such a formality incon- venient and an obstruction. But can it be said that a transaction of such magiiitiulc as took place here be- tween the two or three corporations involved in it would fall within any such exception ? When a party, dealing with a corporation or rather with the officers of a cor- poration in the irregular manner in which the respon- dents here dealt, seek to charge that corporation with responsibility for the acts of those officers, I think the corporation may fairly be allowed to say, shew by what authority those officers used our name and pledged our credit ; have you any resolution by us authorising it, or even any instrument under our seal, authenticated in the usual way by our representative for that purpose, sanctioning such dealing? This is not the case of a party contracting with a corporation in a matter within the scope of its objects and powers where every thing appears to be regularly and formally done, but there happens to be a non-compliance with some regu- lation, rule, or provision which has been established for the governance of the corporation or of its officers, and of i 12 which tho party so contracting had no notice. Here wafl '^ most irregular course of dealing on the part of the bank, aim in a transaction not in, but out of the ordinary course of business of tlio Great Western Railway Com- pany, and one of a most special character, and only to be permliUMl or justified under and in compliance with a particular provisi( n for that purpose made by legis- lative enactment, which tlie Bank were bound to know. It is not the case of the Great Western Railway Com- pany over-drawing its own account which may have fluctuated from week to week or day to day, and sud- denly stopping it with a balance against them. Disguibo the matter as either party may, the advance in this suiQ was not for the purposes proper of the Great Western Railway Company, but to or for the Detroit and Mil- waukie Railway Company ; and is not therefore the case of a mere overdrawn account, but the case of a loan directly and deliberately made, if not to, at least for, the last named company, to bo covered by deposits or ex- change. The truth. I think, is that both Mr. Ross the President of the Bunk, and Brydgea and Reynoldi in- dulged in the hope that the receipts of the Detroit and Milwaukie Railway would, with the £250,000 sterling loan, cover all the advances which the Bank would from time to time make, and that in this faith the account was carried on. Disappointed in this, the Bank seek to enforce payment of the moneys they have lost from the company ; and the officers of each corporation tro Ibrnd giving most contradictory sLutements of wh'^f; o; . > betwc' .? them, influenced doubtless by the vic^kb which they re- spectively took at the time they embarked in the trans- action, but which they, it seems, did not make sufficiently dear the one to the other. It is said, however, that the '. ■'•cat "Western Railway Company have got the benefit of ttiib money., and that it was advanced at all events with the knowledge of the directors, and that the share= holders subsequently ratified its expenditure. I think U 18 'i none of these jjositions sustained. The money was not expended on the road of the Great Western Railuiy Company, or o any of thoir works or property, and it cannot therefore be snid that the company by such ex- penditure havt iiO much more property. It was loaned to a company in whose welfare the^^ doubtless j'ad or thought they had an interest, as they had in all roads which could in any way be brought into connection with their own, or lead traffic to it, hut this was not an using and enjoyment by them of money expended on their own property. Thero is no evidence to shew that the directors ever knew of the state or even of the existence of the account opened with or on behalf of the Detroit and Milwaukie Railway Company. (>n the contrary, those of them who were examined a?' witnesses had never heard of it ; and the account beiis;!; kept separate from the Great Western Railway Corajany's account proper, which was alone from time to t me submitted to the Directors, the Bank enabled the oTicers of that company with whom they dealt to keep the directors in ignorance of these advances. The proprietors never sanctioned the advances which were made, ai d for aught that appears never knew of them till th.s suit was instituted ; and it does S'3em a monstrous proposition that the superintendent of a railway or any other company, whose business is not the borrowing or lending Df money, can involve the shareholders in any amount o ' liability which he in his recklessness may chose thus to in ur. The shareholders expressly limited the amount for w. ich they were willing and intended to be liable, and the board in England again and again forbado Mr. Brydges and Mr. Reynolds going beyond it. Every precaution to prevent any excess was taken, and yet in the face of all this wo are asked to make the corporation responsible not merely for the unauthoris d but for the forbidden acts of their a. iiu ivpwi.v v& iiiii;; vtxxwbvio xu. Ulionci 1to the latter company, and was the account of the Commercial Bank opened and con- ducted by them in pursuance of such authority ? 3rd. Had the Commercial Bank notice at any time while the account was going on that Messrs. Brydgea and Reynolds had exceeded their authority, or that more than the two loans, amounting to ^£250,000 sterling, had been expended ? 4th. Suppose the original credit was given by the bank to the Great Western Company on the opening of the account, was there any understood limitation between the parties as to the question of liability at the time the letter of the 16th of December, 1858, was given, either to the extent of the second loan of X100,000 sterling or otherwise, or was the account continued after that period in the same manner as before by the parties. 5th. Did the Great Western Company by its dealings with the Detroit and Milwaukie Company reap the benefit of the expenditure made by the Commercial Bank on the Detroit and Milwaukie account. The jury gave answers in writing to these queries. To the 1st. That the credit was given to the defendants. 2nd. That Brydges and Reynolds had authority to open the account with plaintifl's, and that the account was 17 opened and conducted by them in pursuance of that authority. 3rd. That the bank had no notice that Messrs. BrydgeB and Reynolds exceeded their authority. 4th. That there was no limitation as to amount at the time the letter of the 16th of December, 1858, was given, and the account was continued in the same manner as before the date of that letter. 6th. That the Great Western Company by its dealings with the Detroit and Milwaukie Company did reap the benefit of the expenditure made by plaintiffs on the Detroit and Milwaukie account. On the finding of the jury in favour of the 'plaintiffs of the several points submitted to them, a verdict was entered in their favour subject to be entered for such amount as shall be ascertained upon a reference, as agreed on. The agreement as to such reference is endorsed on the record, as follows : " It is agreed by the counsel for the parties in this cause that the amount for which a verdict shall be entered, if the plaintiffs shall be entitled to a verdict, shall be ascertained by a referee, to be chosen by the parties respectively, in term or otherwiae, and if the parties cannot agree upon a person for that purpose, then it is agreed between the parties that I shall nominate the referee as upon a compulsory reference. The referee to have power at the request of either party to report upon the different classes of the account, such as amounts paid upon coupons, upon cheques, upon promissory notes or other- wise, and to draw up a statement of facts upon each, for the opinion of the court." In Easter Term last, a rule nisi was obtained calling upon the plaintiffs to shew cause why the verdict should C ii' 18 not be 8ct aside and a nonsuit entered pursuant to leave reserved at the trial on various grounds, (a) The judgment of the court was delivered Mr. Justice Hagarty^ Mr. Justice Burns, and McLean^ C. J., after mature consideration, concurring therein. This appeal is against that judgment, and the reasons for appeal and the respondents' reasons against the appeal are fully set out in the appeal book from p. 11 to p. 24, inclusive. It appeared in evidence at the trial, and I believe is undisputed, that in August, 1857, an account was opened by the plaintiffs with the Great Western Railway Com- pany, under the sanction of the Canada board of directors, and this seemed to have been done in con- sequence* of the Bank of Upper Canada, with which the Great Western account had been previously kept, refusing or declining to make further advances until the amount of overdrafts were arranged. This was done through the plaintiffs, who assumed on behalf of the defendants the whole amount of such overdrafts. In the month of December, 1857, the plaintiffs were informed through their agent at Hamilton, that the financial director of the defendants wished to make an arrange- ment for drawing moneys voted by the shareholders in England for the Detroit and Milwaukie Railway Com- pany, in order that that company by the completion of its road should be brought into connection with the Great Western Railway Company. In consequence of that communication, the plaintiffs' cashier came up from Kingston to Toronto, where by appointment he met the financial director of the railway, Mr. Reynolds, and the agent of the bank at Hamilton. The cashier of the bank and the agent at Hamilton give testimony as to what the arrangement was with respect to the account (a) See report of the case, 22 U. 0. Q. B. B. 236. 10 for the Detroit and Milwaukie Railway'Company, iil which they perfectly agree, but Mr. Reynoldi gives a totally diflferent version of the transaction, and states positively that the name of the Great Western Eailway was not mentioned in connection with the arrangement respecting the moneys to bo advanced for the completion of the Detroit and Milwaukie Railway from the loans made for that purpose by the shareholders in England. In the statement of Mr. Reynolda as to what took place at the meeting between him and Mr. Ross at Toronto, he says, (p. 67,) that at that meeting he saw Mr. Ross^ and took with him a statement and the resolutions of the Great Western board relative to the loans which Mr. Brydges and himself were instructed to employ in the completion and equipment of the Detroit and Milwaukie road. Mr. Reynolds may have inadvertently referred to both loans and the resolutions by which the London board decided upon their being made, but at the time of the meeting, 29th December, 1857, only one of the loans, for £150,000, had in fact been made ; that loan was under a resolution of the English board of the 8th of October, 1857, assented to at Hamilion by the Canadian board on the 2nd of November, 1857, and at the meeting at Toronto of the 29th of December, it could not possibly have been known that a further loan for a similar purpose would be made to the Detroit and Mil- waukie Railway Company to be expended by the same persons, the agents and servants of the Great Western Railway Company. When the loan of £150,000 was made, and Messrs. Brydges and Reynolds appointed as agents for expend- ing it, some mode must have been contemplated for transferring the amount to Canada, where the agents lived, who were entrusted with the expenditure, and it is not unreasonable to suppose that the agents were instructed to draw for the amount, as required, by bills 20 bf exchange. That they had authority to ^r&vf, is evident from the minutes of the English board, of the 18th May, 1858, (appendix, page 30,) at which it is stated that "a letter was written by the board to Mr. Pollard^ manager London Joint Stock Bank, advising him of the maturity on the 20th May, instant, of the draft of Messrs. Bridges and Reynolds on Detroit and Milwaukie loan account, accepted by the board for the sum of £6,000," requesting him to enter the same to the debit of the company. Again in the minutes of the same board on the 12th April, 1 859, is a simH'ir minute in reference to a draft of Messrs. Brydges and Reynolds^ for £20,000, accepted by the resolution of the board, and falling due on the 17th April. The board, by accepting the drafts of their agents, must be supposed to have given them, as individuals, a right to control the moneys which they wore authorised to expend, and if the plaintiffs, knowing them to have such authority, advanced from time to time, on their request, moneys to be expended in carrying out the view: of the board in making loans, I cannot think that the plaintiffs, as bankers, were bound to ask what particular work, or for what particular object the amount was to be applied. That a large amount was advanced by the plaintiffs for an object in which the defendants were deeply inter- ested, is manifest, and if the defendants' agents have exceeded their authority, the plaintiffs having no notice of that fact, ought not to lose the amount of their advances. The defendants were extremely anxious to have the Detroit and Milwaukie Railway completed, under a conviction that it would form a most valuable connection with the Great Western, and when they agreed to make the first loan of £150,000 sterling, it was under the impression that that would be sufficient. Subsequently a further loan of £100,000 was sanctioned, for the purpose of equipping the road, and providing stations. If, then, any portion of the latter loan was 21 in fact expended in completing the road, such expendi- ture might be considered as contrary to the intention of the shareholders and ultra vires, but the plaintiffs could not, in advancing the moneys, be considered as parties to the misapplication of the money, and on that account not entitled to recover. The jury have found, upon the trial, that Messrs. Bridges and Reynolds had authority from the Great Western Company to make financial arrangements for the Detroit and Milwaukie Company, to the extent of £250,000 sterling, agreed to be loaned by the former to the latter company, and that the account with the plain- tiffs was opened and conducted by them in pursuance thereof. There was abundance of evidence before them on that point, and I think the finding is correct. In August, 1857, the company's account was trans- ferred from the Bank of Upper Canada to the Com- mercial Bank, and when, in December following, the intelligence was received of the Great Western Road, in London, making the loan of .£150,000, it was quite natural that Messrs. Brydgea and Reynolds should avail themselves of the company's bankers, for the pur- pose of getting the money to be expended by them. On the 29th December, the interview between Mr. Ross, the cashier of the bank, and Mr. Reynolds, took place, when the arrangement was effected respecting which the witnesses differ so very materially. Judging from the testimony, I cannot but think the testimony of Messrs. Ross and Park entitled to prevail. Certainly it would be extraordinary if Mr. Ross, on the very first occasion of his meeting Mr. Reynolds, and without consulting with the directors of his bank, and with the knowledge that .£150,000 sterling was awaiting the drafts of Messrs. Brydges and Reynolds, to be expended by them, should, nevertheless, consent to advance on the credit of the 122 Detroit and Milwaukie Company any amount which Brydges and Reynolds might require. It is much more reasonahle to suppose that Mr. Ross should decline such a responsibility, and that he should make the proposition to place any amount of advances to the debit of the Great Western Company. There can be no doubt that the plaintiffs were entitled to a verdict for something, and that the application for a new trial was properly refused. The means of ascertaining how much the verdict should be for, was agreed upon between the parties, and is yet open ; if the referee has included any objectionable items in his report, the court may refer the matter back to him with their opinion, and he will, no doubt, correct any error he may have made. 1 should be exceedingly averse to sending the case again to a jury; the interests of both parties seem to forbid it. I do not see any sufficient grounds for the appeal, and therefore I am of opinion that it must be dismissed with costs. Wliilo I am obliged to come to this conclu- sion, I must acknowledge that the intimation given by both parties that the case will be still further appealed, aifords me much satisfaction. The amount in dispute is very large, and the law, as to the liability of corpora- tions, unsettled, and a decision from the highest court of appeal will go far to establish the law in such cases. Hagarty, J. — I was not present at the argument, and therefore give no judgment ; but I think it right to add to the judgment just delivered, that in the elaborate argument of the appellants in the Queen's Bench no dis- tinction whatever was pressed on the court between the liability for the unpaid portions of the two loans and the residue of the claim. Nor, as far as the papers shew, was any such point made at the trial. mi j-ue voluminous grounas ot nonsuit or l. , trial do not suggest it. It is clear there could not have been a non- me the sbit ed 4 18 Buit, and as to setting aside the verdict the plaintiffs vrero, it seems, entitled to recover about <£100,C ; so that in accordance with the views of the Court ot Appeal, the judgment of the Queen's Bench was technically correct in discharging the appellants'j^rule. The difficulty is created by the fact of the verdict being for a nominal sum, with a consent endorsed on the record that the amount for which the verdict should be entered was to be fixed by an arbitrator: '* The referee to have power to report upon the different classes of the account such as amounts paid upon coupons, upon cheques, upon promissory notes or otherwise, and to draw up a statement of facts upon each for the opinion of the court." m1 In the view of the Court of Appeal the plaintiff can- not recover beyond the unpaid portions of the two loans, and unless some new facts can be given in evidence, if a new trial take place the judge must so charge the jury. If the referee find the facts as he is impowered to do, the court can apply the law now declared to these facts, and so a new trial be needless ; or perhaps if an award be made it could be referred back to the referee with a direction to find in accordance with the view of the law now declared. On hearing the judgment of the courf, the counsel for the plaintiffs urged that there should be no new trial, but that the referee already named, guided by the opinions expressed by the court, should fix the amount due to the plaintiffs, as both parties had at the trial by counsel withdrawn the question of amount from the consideration of the judge and jury, and had consented to a verdict I I '-•^ Si for one shilling, subject to be increased by the award of an arbitrator, who it is admitted was appointed. The court on consideration ruled that if the plaintiffs desired a new trial it should be granted to them without costs. That if the defendants (the appellants here) desired a new trial it should be granted to them on pay- ment of costs ; but that if both parties consented, the case should be remitted to the arbitrator to ascertain the amount due to the plaintiffs (the respondents here) in accordance with the opinion of this court. That each party should elect and give notice to the other before the first day of April next, whether or not ;hey would agree to the further reference ; that the party giving such notitce should be bound thereby, and that if the appellants, tho defendants below, did not give such notice before that day then a new trial to be ordered with costs to be paid by the appellants, tho defendants in tho court below. COMMERCIAL BANK V, QREAI Wl m, w. «•. d of 1 tifis m lOUt fl sre) 9 ajr- ■ lase S the n in n nch H ore 9 uld a The Commercial Bank of Canada v. The Gblat Western Railway Company. Hagarty, J. — It may be convenient to notice in the fhlt place the resolutions of the court of proprietors of the Great Western Railway Company authorising the lending of money to the Detroit and Milwaukee Railway Company. The first is of the London date, 8th October, 1857, and Hamilton date of 2nd November, 1857, and sanctions an " advance to the Detroit and Milwaukee Company of such an amount, not exceeding £150,000 sterling, as may be neces- sary to ensure the completion of the railway across Michi- gan, in connection with the Great Western Railway Company of Canada ; such advance being made as a temporary loan, and on sufficient security, the expenditure of the same being subject to the control of the Great Western Railway Com- pany." The second resolution, dated, respectively, London, 7th October, 1858, and Hamilton, 2nd November, 1858, autho- rises the board " to advance to the Detroit and Milwaukee Company a further sum of money, not exceeding £100,000 sterling, to be expended by and under the control of the Great Western Railway Board of Directors." The statute 22 Vic, ch. 116, sec. 11, allows the Great Western Railway " to use its funds, by way of loan or other- wise, in providing proper connections, and in promoting its traffic with railways in the United States," when sanctioned by two thirds of the shareholders, &c.; and enacts "that the loan of seven hundred and fifty thousand dollars already made by the said company to the Detroit and Milwaukie Railway Company is hereby declared to be lawful." A large portion of the argument for the defendants was directed against the legality of an employment of the means of the Great Western Railway Company in making or com- pleting this foreign road ; — and it was contended that in any event the defendants had no power to borrow money from third parties to effoct sueh a purpose, and that the present plaintiffs, when they advanced the sums now sought to be recovered, had full notice of the alleged illegal destina- tion of the money. 9 i queen's DEJTCn, MICHAELRTAS term, 20 VIC, 1862. l\ I think it well to dispose of this branch of the case first. From August or September, ISf)?, down to the occurrence of the present difficulty, the plaintiffs had been the bankers of the defendants, and when the Detroit and Milwaukee account was first opened the resolution for the jG150,000 was known to the plaintiffs. The clause already cited of the act passed on the IGth of August, 1858, removed all questions of the legality of the first advance, and I presume is declaratory in its nature. It also prospectively gives full power to the Great Western Railway Company " to use its funds, by way of loan or other- wise, in providing proper connections, and in promoting its traffic with railways in the United States." On the face of the second resolution, passed shortly after this statute, there is nothing to shew the special purpose of the X100,000 advance to the Detroit and Milwaukee Com- pany. It is simply spoken of as " a further sum of money, to bo expended by and under the control of the Great Wes- tern Uailway Board of Directors." The bankers of the Great Western Railway Company may bo assumed to know that the legislature had expressly sanc- tioned averylargeloan tothe foreign rail way: that it had been really intended to be used, and was used, not merely in mak- ing connections and promoting traffic, but in constructing and equipping the line itself : that the road required further aid, and that parliament allowed such aid for certain speci- fied purposes : that the Great Western Railway Company had determined on a further advance of a lesser sum than that first loaned ; and that the lenders were to have the actual expenditure of the money. Such money might very well be applied strictly within the words of the statute, though it may be safely assumed, from looking over the items of ac- count, that large portions at least were applied in the gen- eral construction and equipment account, and in payment of debts due by the Detroit and Milwaukee Company. Among the exhibits in evidence I find a copy of a resolution of the English board of the 12th of October, 1858, stating mac lue second loan of .£100,000 was granted specifically to provide rolling stock and station accommodation to the line of rail- way opened by the aid of the former grant. There seems to be COMMERCIAL BANK V, aREAX WE8Tiih:{ H. W. CO. 8 no ovuleiico of thia resolution, passotl five days aftor tlio vot- ing of the socontl loan, boin;^ ma f n i\-..- -1 f?flfa V-.--1 JJecemoer looo, wiien me piamtitts uad pomteclly obtained from Brydges and Reynolds the admission of the Great Western Railway Company's liability. 20 queen's bench, MIOHAELMAS term, 26 VIC, 1862. I may instance such letters as that of Sorley, the bank accountant, addressed to the Vice-President of the Detroit and Milwaukee Company, (Reynolds), asking him for a cer- tificate ** of the balance duo this bank by your company on account as on the 10th instant." This is on the 14th of Octo- ber, 1859. Again, the letter of Mr. Park of the 10th of November, 1859, referring to the $200,000, " special loan by this bank to the Detroit and Milwaukee Railway Com- pany," and asking for renewals of the notes given therefor, " the bonds of the Great Western Railway for an equal amount being still held by us as collateral until the bill or bills are paid;" and a similar letter of the 15th of the same • month. Something was said, and more was hinted, as to par- ties connected with the bank having had dealings, either per- sonally or for others, in the Detroit and Milwaukee Com- pany's securities, which were in the market at very heavy discount ; and possibly this may account for some of the very lively interest evinced by some of the writers of the letters in evidence, as to the standing, credit, and prospects of this company. I attach much higher importance to the communications between the parties at or about the time when the account was first opened, and while the origin and true bearing of the agreement were most fresh in the recollection of all parties. The dealing commenced about the 29th of December, 1857, and depends, firstly, on the verbal testimony already noticed. Within a few days of this, Messrs. Brydges and Reynolds went to New York, to arrange with certain creditors of the Detroit and Milwaukee Company there. On their return they write a letter to Mr. Ross, dated January 11th 1858, signed by them as managing and financial directors of the Great Western Railway, asking the bank to guarantee certain bills, which they say they had given to Rayner & Clarke, for a claim on the Detroit and Milwaukee Company, which they had settled, they say, " by giving our acceptance of Mr. Trow- bridge's drafts on this company," (the Great Western Rail- way,) setting out the amounts, " each being dated from "^i COMMERCIAL BkHK V. GREAT WESTERN R. W. CO. 21 Detroit, 8th December, 1857, signed by C. C. Trow- bridge, treasurer of the Detroit and Milwaukee Company, and accepted by us as managing and financial directors, respectively, of the Great Western of Canada Company." I quote this as illustrating the then understanding of the parties, and suggestive of the question whether the bank, having paid the bills at maturity, would on this letter have naturally looked to the Great Western Railway Company for repayment, or to the Detroit and Milwaukee Company, or to Messrs. Reynold" and Brydges personally ? Shortly after, o ihe 30th of March, 1858, the letter of Brydges and Reynolds is written to Ross, requesting the credit of $100,000, if required, " on our joint Detroit and Milwaukee account here," stating that " the balance against the Great Western Company is now so much reduced, (and will continue steadily to decrease,) that we imagine you will have no objection to the arrangement here proposed. * * We desire to adhere as nearly as we can, in draw- ing on our English colleagues, to the amount set down in the schedule we prepared for the gradual completion of the works on the Detroit and Milwaukee line ; and this proposed credit would enable us to do so without the necessity of postponing claims which could, if promptly settled, be much more satisfactorily arranged ;" and they ask this to be submitted to the bank board. On the 1st of April, 1858, two days after, Mr. Hoss answers this favourably, " under the impression that any amount on the Detroit and Milwaukee account not covered by bill at the end of each month, will be (practically) neutralised by a corresponding reduction of general account, under the limit of £50,000, * * that on the 1st of December next the Detroit and Milwaukee account shall be covered in full by exchange or cash. * * We assume that the aggregate amount of the Detroit and Milwaukee account uncovered at each month's end, and of the general account, will not exceed $200,000 ; but in case of emergency we shall not mind an excess of $25 to $40,000 for a thort time." This is addressed to Brydges and Reynolds, directors of the Great Western Railway. The latter answer this letter on the 14th of April, agreeing to the conditions, except as to 22 queen's bench, MICHAELMAS term, 26 VIC, 1862. ■W- the Ist of December limit : " We have every expectation that within six months from this date the Great Western account will be in a condition not to require the open credit which it at present enjoys, and if this expecta- tion should be realized we presume there would be no objection on the part of the bank to carry the Detroit and I ilwaukee credit on to the 31st of March next." This correspondence, so shortly following the opening of the account, and before any difficulty seems to have been anticipated, is valuable for ascertaining what the parties themselves seemed to understand of their respective positions. It certainly is not without great weight towards supporting the plaintiflfs' view, that they and Messrs. Brydges and Reynolds then considered that the dealing was directly between the Commercial Bank and the Great Western Rail- way Company. At a much later date, on the 25th and 28th of May, 1859, we find letters and statements written by Messrs. Brydges and Reynolds to the bank, which are impor- tant as shewing the manner in which the accounts of the two companies are referred to, the liabilities and the net receipts of each, excusing the not giving of sterling exchange, and in the last letter enclosing the notes of the Detroit and Milwaukee Company for large amounts, and Great Western Railway bonds, to be used by Ross in New York as collateral security in endeavouring to raise money on the Detroit and Milwaukee notes. The bank were to get the proceeds of the notes to provide funds in lieu of the sterling exchange which Messrs. Brydges and Reynolds could not then provide. It is necessary here to notice the argument that Messrs. Brydges and Reynolds personally were those to whom the plaintiffs gave credit when the account was first opened. I hardly understand the evidence of these gentlemen as leading to that conclusion. Mr. Reynolds says (at page 73) "We opened an account in our joint names as individuals:" and in answer to the question. Was '<■. not for the Great Western Railway ? " It was in pursuance of the instructions to expend the money." * * '• It was an interim arrangement for the purpose of aiding us in carrying out the instructions COMMERCIAL BANK V. GREAT WESTERN R. W. CO. 23 ;ion ,•/■■ em ■- 1; the 3ta- Mk no S md Jb on account of the Detroit and Milwaukee Railway Company. * * We opened the account and made the arrangements with Mr. Ross purely on our own responsibility : we had no instructions whatever to do so for the Great Western Rail- way Company. To the question, " But was it your own transaction, your own speculation ?" Answer^ " Certainly not." To the question, "Was it the Great Western Rail- way's business ?" Answer, " It was the Great Western Rail- way's business to find the money, but it was our business to spend it." Mr. Brydges, after denying any authority from the Great Western Railway shareholders to incur liability on their ac- count, (at page 86,) to the question, "How did you look upon the matter yourself — that you were opening an account on behalf of the Great Western, the Detroit and Mil- waukee Company, or yourselves ?" Ansioers, " Certainly not the Great Western.'' On this answer of Mr. Brydges, this question suggests itself to me : — Could he carry out his instructions to draw the amount of the loans from England except by exchange, which he must negotiate with parties here, receiving from them the cash proceeds ? His directors do not argue that they could repudiate his exchange on them drawn with their sanction. I hardly see, if so, how the cash so given or advanced by bankers discounting the drafts to the company's officers can be looked upon as lent to those officers on their personal credit. It would more naturally seem to be advanced on the credit of the bills being duly honoured by the drawees. I do not think that on the evidence it can fairly be con- sidered that the credit was given to these gentlemen indi- vidually, whatever might be their personal liability (as Mr. Reynolds suggests) if their acts had been repudiated by their principals. The jury, on this question being left to them, negatived, as I think justly, such a conclusion. It is almost impossible to comment in full on all the evi- dence and documents submitted. I must content myself with noticing what seem to me to be the prominent features of the case. 24 queen's bench, MICHAELMAS term, 26 VIC, 1862. I will now examine the objections taken to the admission of evidence :■ — First, in allowing the minutes of the plaintiffs* board of directors to be read on the application of Brydges and Rey- nolds for the $100,000 credit. This minute is of the san 3 date, the Ist of April, 1858, with the plaintiffs' letter in reply to the ap{)lication already noticed. The only material difference between the minute and the letter is, that the former speaks of the " application from the Great Western Railway for a credit of $100,000 on their Detroit and Mil- waukee account as considered by the board ; and again " the understanding being that the aggregate amount of the ac- counts of the Great Western Railway Company will not exceed ^50,000 to £60,000 Cy." It appears to me that this minute was properly received in evidence as part of the transaction, and that the tendency of modern decisions is clearly in favour of admitting proof of all things done by parties at the time of entering into a con- tract, to prove their respective understandings of it. The case in the Exchequer of Milne v. Leisler, (5 L. T. Rep. N. S. 802,) strongly illustrates this. The point was this : — ^A applies to B. to purchase goods, representing, as B. contends, that he was buying on account of G. and M. : A. swears that he bought on his own account, and that he intended to ship through G. and M., and would probably pay by their acceptance. The day after the bargain B. writes to his Liverpool agents to enquire as to the standing of G. and M., and stating that A. was making a large pur- chase of goods for them. This letter was held to be pro- perly receivable as part of the res gestos, and the decision has I think a strong bearing on this and also onHhe second and fifth objections urged by defendants. This fifth objection points to the allowance of the docu- ment called a bank statement, sent by the plaintiffs' Hamilton agent to the Head ofiice at Kingston, shewing how the account was kept. I see no valid objection to this. I feel more doubt on the second obiection. to the admis- sion of the evidence of the bank directors of what their cashier, Ross, had reported to them as to what had taken OOMMSROIAL BANK V. GREAT WESTERN R. W. CO. 25 lOQ place between him and Reynolds in Toronto when the ar- rangement was made for opening the account. In the case last sited Pollock, 0. B., says " It is certain that a mere statement, as when a person returns, for in- stance, from the Exchange to his counting-house, and says, * I have sold such and such things,' that would not be evi- dence of the fact." But in the present case we have to consider the position of the parties. A very serious contract is under discussion between Reynolds and the cashier, Ross. The latter was not dealing for himself, but, as all parties well knew, as the agent of a corporate body, with a board of directors who could either sanction or repudiate his acts, and to whom he would have to report his proceedings Tor approval. On looking back to the evidence, it may be truly said that it amounts to very little, and can hardly have weighed seriously with the jury. Three directors were examined. Dr. Robertson's evi- dence is quite unimportant: he says nothing on the dis- puted point. Mr. Strange's testimony merely amounts to this, that, as he supposed, the directors sanctioned a loan to the Great Western Railway Company. Mr. A. J. Mac- donell's evidence seems alono open to the objections urged. He states, in substance, that Mr. Ross usually reports all important matters to the board for approval, and that on his return from Toronto, after the interview, he reported that credit was to be given to the Great Western Railway Com- pany; and that the board would never have consented to giving a credit to the Detroit and Milwaukee Company, and that he never heard that such a thing had been asked. But, on further examination, Mr. Macdonell evident*^' could not remember any distinct report made to the board, or discus- sion of the matter on Ross's return, and the impression left on my mind from perusing his answer is, that it is uncertain whether he heard this from Ross in the form of a report to the board, or on one of the occasions of which he speaks : — Sometimes (page 57) I am not present at the board meet- but I have conversations with Mr. Ross on the affairs of the bank almost daily ;'' and to the question, on cross- 4 u H. queen's bench, MICHAELMAS TERM, 26 VIO., 13C2. examination, " Have you any very distinct recollection of this matter being discussed when Mr. Ross returned ?" he replies ^* There were so many things submitted that I cannot remember it very distinctly." I think this evidence cannot be upheld except on the principle of a report or return made by an officer or cashier of a public company in the course of his duty to his supe- riors, with whom lay the power of approval or disapproval of his acts. Mr. Macdonell's evidence very faintly, if at all, places it in this light. I presume he and his co-directors could be properly examined to prove that they as directors never sanctioned or heard of any proposition to lend money to the Detroit and Milwaukee Company, or to any other but the Great Western Railway Company, and it is a ste»^ very slightly in advance of this to state that from their cashier's report to them they understood the matter in that light. If at the time of the negotiation between Ross and Rey- nolds it was an understanding of the parties that the pro- posed credit (to whomsoever given) should be referred to the Commercial Bank board, it will naturally seem that Ross's carrying out such understanding would be fairly considered as part of the res gestes. In Ross's evidence, on cross-examination, (page 38), he is isked thus : ^' ^t seems to have been understood between these gentlemen that a reference of these matters to the board was necessary before any definite arrangement could be made. You could not of yourself grant a credit to Messrs. Brydges and Reynolds witbjut a reference to your board?" Answer— ^^ I was in the habit of referring matters of son- sequence to the board, for the sake of advising with the direc- tors upon them.'* Again, at page 39, " Did you lay the schedule before the board ?" Answer — " Not that I remember. * * I explained the matter to the board, and in the minutes of the 31st of December there is an allusion to it. * * j told Mr. Reynolds I had no doubt that the arrangement would be carried out." It would thus appear that Ross would be by all parties naturally intended to report all this to his board for approval, COMMERCIAL BANK V. GREAT WESTERN R. W. 00. 27 to complete the transaction, and therefore I have come to the conclusion — not however without some hesitation — that as part of the res gestce, as " a declaration accompanying an act," his report to his directors was admissible. See Starkie on Evidence 52-8. I desire to adopt the most liberal construction of the rules of evidence. Infinite mischief has been done for generations by errors on the opposite side. I think that as the law is now administered we are safe in adopting the less stringent rule. I repeat however that I attach but slight importance to the evidence now objected to, and can hardly believe that its re- ception in any way whatever influenced the result. The third objection to evidence is as to receiving the copies of the proceedings of the Great Western Railway London Board, without its appearing that such documents were in fact copies of the original proceedings : " the only evidence of there being copies, or that there ever were such documents, being that of defendants' secretary, that said copies were sent to this country by the ofiicers of the company in Eng- land as such copies, but whether they were copies or not he did not know." I think the objection stated in the rule gives its own answer in the words above quoted. The secretary of the directors here proves the official receipt of such documents by the Canadian board, to be treated by them as official and authoritative. I should be sorry that such a mode of proof could be found to be objectionable. The last objection to evidence requiring r'>tice is number 4, as to ihe admissibility of what was called the " Red Book," oi' charges against and answers by the directors of the Great Western Railway. In my view of the case I attach little or no importance whatever to this book or its contents. On the ividence of Messrs. Muir and Stephens (at pages 47 and 48,) it is shewn that these red books were sent out by the English Board to the Canadian Board. Mr. Stephens, the defendants' secre- tary, says they were circulated here when received among the shareholders as the report of the company, and he points to minutes of the Board here bearing on the subject of this 28 QUBEN'S bench, MIOHABLMAS term, 26 yiO.) 1862. report. I think it was fairly receivable in evidence, as a document adopted and circulated bj the defendants' board here. I therefore think that there is no ground for a new trial for the reception of improper evidence. I have already stated my views as to the various legal exceptions taken against the maintenance of the action, and I think they apply to nearly all the voluminous objections in the rule to shew cause. Before summing up my views I should perhaps notice the objection to one of the questions submitted to the jury : namely, as to the Great Western Company ** reaping the benefit" of the expenditure of the plaintiffs' money on the Detroit and Milwaukee line. It is said that such a question was too vague and general. If the question were proper in any shape, it is not easy to see how it could be framed in a less objectionable form. The decision at which I have arrived does not depend upon the finding of the jury on that point, and would be the same had such a question been omitted from those submitted to them. It is needless to premise, that in a matter so complicated as this has become, in the dealings between these companies, and in the rather unsettled state of the law for many years past as to the rights and powers of corporations to contract otherwise than under seal, an opinion formed on the points submitted for our judgment can hardly be delivered without some hesitation. On the best consideration that I have been able to give to the case, I have arrived at the following conclusions : — That the first loan of .£150,000, sterling, to the Detroit and Milwaukee Company, was sanctioned by the subsequent aC. of parliament, and declared in express terms to be valid : — That as to the second loan, of X100,000, sterling, there was nothing on the face of the resolution to shew that it was to be expended in a manner contrary to law : — That on the faith of these resolutions, and of the arrange- ments made by the two managing directors of defendants, . 1^ '^WW COMMERCIAL BANK V. GREAT WESTERN K. W. 00. 29 a rd en ey to k ♦■i?1 the Commercial Bank agreed to open the account, which they call " The Detroit and Milwaukee Railway account, Great Western Railway : — that thoy, then and previously being the general bankers of the Great Western Railway, continued to advance large moneys on this account ; and the mode by which they were to be repaid such advances was by paying into them all the traffic receipts of the Detroit and Milwaukee Company, and covering the deficiency from time to time by drafts, in sterling exchange, drawn by the Great Western Railway officers here on the then English Board : — That of the two loans, of X250,000, they in fact have only received about $700,000, leaving about X100,000 sterling thereof which never reached them : — That the advances continued to be made for over two years, till a very large balance remains due to the plaintiflfs : — That it was a question of fact to be decided by a jury, and not a legal matter for the court, as to whom and on whose credit the bank really advanced its money — whether to the Detroit and Milwaukee Company, to Messrs. Brydges and Reynolds individually, or to the Great Western Railway Company : — That there was evidence to go to the jury on this point, although the common seal of the Great Western Railway Company was not used to sanction the acts of its officers or directors, or to shew the assent of the corporation to the liability : — That for the reasons previously given there is no objec- tions to the bankers recovering the balance due on the ground that such an expenditure was beyond the statutable powers of their customers as a chartered company : — That there is no ground for nonsuit or for new trial for misdirection or admission of improper evidence : — that the questions submitted to the jury by the learned judge were substantially calculated to aid the jury in determining the issue joined, and are not open to serious objection. And as to the merits, I see no safe ground on which the court can determine that the jury found for the plaintiffs, either without sufficient evidence or against the weight of evidence. 80 queen's bench, MIOnAELMAS TERM, 26 VIO., 1802. Aa 1 understand, the question of amount was agreed to be settled by a referee, who could state a case, if required, to the court. I do not feel it necessary to do more than express my view of the principles by which I consider the case to be governed. It is satisfactory to feel that in a case of this magnitude ^he opinion of a Court of Error can bo taken on the serious questions involved. MoLban, J. — concurred, and said that he had been desired by Mr. Justice Burnt to state that he also fully agreed in the judgment just delivered. Bule discharged. THE SYSTEM OF LANDED CREDIT OE LA BANaUE DE CREDIT FONCIER ' r