sent shape, if the solicitor of Thomas had not so advised. But for his suggestion Thomas would have retired the note, and taken the mortgage to himself. His account is, that Thomas spoke to him about an advance being made to Titterington to pay the note, and that he told him not to advance the money himself, but if he could get any other person to do so to get the advance in that way. This was not denied by Thomas, who admitted indeed that he acted upon the advice of the solicitor. The instructions to prepare the mortgage were given by Thomas, and John was not even informed that such a proceeding was in contemplation until the previous evening. There is not the least reason to suppose that Patrick ever heard of it until after it was consummated. Again, the mortgage was retained by the solicitor of Thomas, and afterwards handed to him, and not to John.

We think that the learned Vice-Chancellor gave too little weight to the circumstance that the defendants were brothers, who were seeking to establish this admittedly suspicious defence by their own statements, uncorroborated by other testimony, either oral or written.

The rule laid down in Merchants' Bank v. Clarke, 18 Gr. 594, even if not of universal application, is in general a safe and judicious one to be observed. Indeed, we venture to think that this very case indicates its soundness and propriety, for it seems to us that public policy required that a structure which bore so suspicious an appearance of fraudulent origin, should be supported by some better and further evidence than that of the suspected parties. We are also unable to concur in the view that the plaintiff is to suffer from the non-production of Patrick. In our opinion the defendants did not shift the onus by their own statements, and they required all the help that Patrick could give.

When the evidence in proof of the alleged debt is examined it appears to us to completely fail. There is no reason to doubt that originally there was no intention of setting up that Patrick had any interest in the money. If

there had been, the mortgage would have been made to him and John jointly, and even the confidence which these brothers repose in each other would not have led to his money being thus invested without his leave. The introduction of Patrick's name bears every appearance of an afterthought, originated when it became plain that no stretching of figures could make John appear a creditor for the requisite amount. Upon his own evidence, and giving him the full benefit of every statement, he could not make up a daim of $500.

Thomas has no book which contains any entries of transactions between him and his brothers, and although John produced a book upon his examination before the assignee in insolvency, Thomas knew nothing of its existence or contents. The original statement made by John was, that it contained entries relating to their dealings, but that these had been torn out,-when he could not tell, but the entries amounted to about $450. At the trial the same book is produced, and it is said then to have contained items relating to the alleged debt, but amounting to a much smaller sum. It is also charged that these entries were manifestly made at the same time, but the book through some mistake was not before us upon the

argument, and we are bound to disregard this charge. Thomas speaks of a sum of $3,500, which he received from the Dominion Government as compensation for certain land which belonged to him and John jointly, and in this way he attempts to make up the claim of $2,000, but it seems to be quite clear that this money was not received until some time after the transaction in question. Further analysis of the evidence only confirms the opinion that the defence wholly failed, and we cannot but think that the learned Judge would have been of the same opinion, if he had not taken so favorable a view of the defendants' position with respect to the burden of proof.

In dealing with this appeal we are not embarrased with various considerations which might have arisen, if the learned Judge had, upon hearing the defendants, formed

an unhesitating opinion upon their testimony, while recognizing the burden of proof which they ought to sustain.

In our opinion the appeal should be allowed, with costs; and the usual decree made in the Court below with costs.

BLAKE, V. C.—I concur in the judgment of the Chief Justice of this Court. As the learned Judge who tried the cause was not satisfied with the evidence, and came to the conclusion at which he arrived "after a great deal of hesitation," I do not think we are precluded from finding for the plaintiff, as we would be had the evidence been entirely satisfactory to the mind of the Judge in the Court below as to the bona fides of the transaction. I have only to add that I think it a circumstance of suspicion that they should have so ostentatiously paraded the second mortgage, but when it came to the reality of the transaction. nothing was advanced, except on the mortgage that was to be made the means of retiring the note which was troubling the endorser. I believe this was a part of the general scheme which was to aid in cloaking that which, with all the care used, is, to my mind, a very apparent fraud.

PATTERSON and MORRISON, JJ.A., concurred.

Appeal allowed.

CROSS V. CURRIE ET AL.

Promissory note-Accommodation endorser-Innocent holder.

B. endorsed a promissory note made by C. for the purpose of retiring another similar note which he had previously endorsed for C.'s accommodation, and gave it to C. Instead of retiring this note, however, C. handed it to the plaintiff in payment of a debt, who took it in good faith, but made no inquiry respecting C.'s title to the note or his authority so to deal with it.

Held, affirming the judgment of the Queen's Bench, 43 U. C. R. 599, that the plaintiff was entitled to recover against B.

APPEAL from the judgment of the Court of Queen's Bench, making absolute a rule nisi to enter a verdict for the plaintiff.

This was an action on a promissory note made by Currie, payable to the order of defendant Brown, and indorsed by Brown. It was endorsed by Brown and entrusted by him to Currie, for the purpose of being used by Currie to retire another note which Brown had endorsed for Currie's accommodation. While it was still in Currie's possession, Currie was pressed by the plaintiff for a debt due to him, and handed him this note, which the plaintiff received on account of his debt, making no inquiry respecting Currie's title to the note, or his authority so to deal with it. Court of Queen's Bench held that the plaintiff was entitled to recover against Brown. The case is reported in 43 U. C. R. 599, where the pleadings and facts are fully stated. The defendant Brown appealed.

The case was argued on the 2nd of March, 1879 (a).

The

Bethune, Q. C., and Ewart, for the appellants. The appellant never endorsed or delivered the promissory note sued on to the plaintiff, and never authorized any other person to do so: Foster v. MacKinnon, L. R. 4 C. P. 704; Austin v. Farmer, 30 U. C. R. 10; Bell v. Lord Ingestre, 12 Q. B. 317; Denton v. Peters, L. R. 5 Q. B. 475. The note was delivered to Currie, the maker, for a specified

(a) Present.- Moss, C.J. A., PATTERSON and MORRISON, JJ. A., and BLAKE, V.C.

purpose, and he had no authority to use the note for any other purpose. It cannot be contended that the respondent was an innocent holder of the note for value as the evidence shews that he knew that this note was made by Brown for Currie's accommodation, and he is bound by all the equities existing between Currie and the appellant. They cited Ianson v. Paxton, 22 C. P. 505; Hogg v. Skeen, 18 C. B. N. S. 426; Young v. Austen, L. R. 4 C. P. 553; Halcrow v. Kelly, 28 C. P. 551; Blake v. Walsh, 29 U. C. R. 541; Marston v. Allen, 8 M. & W. 494; Adams v. Jones, 12 A. & E. 455; Lloyd v. Howard, 15 Q. B. 995; Bank of Montreal v. Reynolds, 25 U. C. R. 352; Atterbury v. Wallis, 8 DeG. M. & G. 454; v. Coddington, 5 Johns. 54.

Miller, Q. C., for the respondent. The appellant is a legal practioner, and must be presumed to have known the law. Being aware that Currie was financially weak, and that it was rumoured that he was committing frauds, he was guilty of negligence in not limiting the endorsement by making it payable to "The Canadian Bank of Commerce or order." As was admitted on the argument in the Court of Queen's Bench, the respondent is a holder for value before maturity. No notice of any equity attaching to the endorsement was given, nor was there any proof of negligence on his part, and as the note was taken by him in accordance with the prevailing practice with banks and persons when accommodation endorsements are given, negligence should not be inferred. The appellant, by his conduct, clearly constituted Currie his agent to transfer the note, and is bound by his act and transfer. To hold that this instrument can be controlled by such an agreement as is set up here, would be most. injurious to the banking business of the country. He cited Baxendale v. Bennett, L. R. 3 Q. B. D. 525.

January 26th, 1880. Moss, C. J. A.-After much fluctuation of opinion, and with some slight residuum of doubt, I concur in the judgment of the Court of Queen's Bench.