J. C. 1867 THE BANK OF V. the individuals, but also with the trading corporations of the place in which he was placed as Manager, and to deal in that way with the trading corporations, even although he himself might hold shares in any one of them. And if that be the true view of the position and authority of Bradshaw, it cannot, their LordBRADSHAW. ships think, be denied that the advance made to the Telegraph Company upon the account that I have described, was entirely a legitimate act in the course of the ordinary business of the Bank. Their Lordships, therefore, preserving entirely intact the general rule as to the conduct and duty of Agents, are not prepared to hold that Bradshaw exceeded his power or authority in dealing with the Telegraph Company in the way that has been described. The next and the largest question in the case is with reference to the dealings in the account of Mr. Wilson. The first of those dealings in respect of which the judgment of the Court below has been impugned, is as to the drafts which have been called in course of the argument the Lindsay drafts. Those drafts were two in number; they were drafts drawn by Wilson upon his Agent, Lindsay; Wilson trading at Quebec,―his Agent, Lindsay, at Montreal; and were drafts in respect of real transactions, for Lindsay was receiving, from time to time, moneys of Wilson which it was the object of Wilson to have the benefit of at Quebec; they were discounted by Bradshaw, as the Manager of the Bank, and discounted for Wilson. At the time of the discount of these drafts the evidence shews that Wilson enjoyed unblemished and undiminished credit in the mercantile community of Quebec, and that he was a person who had been, and who continued to be, in a very extensive business. Now it was stated on behalf of the Appellants, very fairly, in their argument, that so far as vicissitudes of trade were concerned, and so far even as any error of judgment might be imputed to Bradshaw, they did not desire upon those grounds to challenge his acts and conduct. But it was said that these drafts upon Lindsay were drafts which in some way had been used or had been intended to facilitate the purchase of a ship called the Princess Royal; that in that ship Wilson and Bradshaw, the Respondent, were jointly interested; and that, therefore, in discounting these drafts Bradshaw, the Respondent, was virtually providing, by means of the funds of his J. C. 1867 THE BANK OF UPPER CANADA v. employers, facilities for his own speculation in conjunction with Wilson. This must depend upon the evidence in the case, and their Lordships can find no evidence whatever in any way connecting these drafts with the Princess Royal, her purchase, or her employment, except the statement occurring in the evidence of Wilson himself, where he says, with regard to these two drafts on BRADSHAW. Lindsay, that they have been drawn to facilitate the payment of the Princess Royal, and of another boat to which he refers. There is not in the facts, which are otherwise proved, as to the payments for the Princess Royal, anything which supports, and there is much which is at variance with, this statement of Wilson; and their Lordships, with regard to the testimony of Wilson, are obliged to assent to the view taken by both branches of the Court in the Colony, that upon any question in this case depending upon the unsupported testimony of Wilson, that testimony cannot be relied upon. Their Lordships also are obliged to observe that it having been in the power of the Appellants to examine Bradshaw while he was yet alive, and Bradshaw having been, as was stated to us, called upon a subpoena, but not examined, their Lordships would be slow upon any charge against the conduct of Bradshaw's depending upon the unsupported testimony of one witness, to hold that charge proved in a case where no opportunity had been given to Bradshaw, the Respondent, to explain or to deny the charge. Their Lordships, therefore,—the evidence failing entirely to connect the drafts of Lindsay with any dealings in which Bradshaw was personally interested,-are of opinion that the discount of those drafts was merely an ordinary banking transaction in the course of the business of which Bradshaw was Manager, and that no claim can be made against him in respect of that discount. The next point urged on behalf of the Appellants was a claim in respect of a draft for £1,100, the draft which has been termed in argument the Wenham draft, the proceeds of which upon discount were carried to the account of Wilson, and were applied by Wilson in part payment of the price of the Princess Royal, in which, as has been already stated, Wilson and Bradshaw had some joint interest. Now, if it were shewn that Bradshaw was aware of the purpose for which this draft was drawn and discounted, and if, further, any loss VOL. I. 3 2 R J. C. 1867 THE BANK OF V. had accrued to the Bank in respect of the discount of this draft, their Lordships can see that a claim might have been made against Bradshaw in respect of that loss. But their Lordships find that on the one hand no evidence has been given that Bradshaw was aware CANADA of the purpose for which this draft was to be applied, and on the BRADSHAW. other hand (and this alone would be sufficient for the opinion which their Lordships have formed) the sum credited to Wilson on account in respect of this draft was almost immediately, or very shortly afterwards, paid and satisfied by the ordinary appropriation of the payments in upon the other side of the account of Wilson and the Bank. No loss, therefore, can be said to have accrued to the Bank in respect of this sum. The next item referred to by the Appellants is the McDonald and Logan notes and cheque of the 23rd of July, the 1st of August, and the 9th of June, 1855, respectively. Here again, so far as these notes and cheque were discounted and cashed upon the faith of the names upon them, their Lordships are of opinion that the transaction was one of an ordinary and proper character; Wilson being, as has been already stated, in large business and full credit; McDonald and Logan being also in credit and business at that time. And the observations which have been made with reference to the Lindsay drafts apply also to the paper of McDonald and Logan. If it were shewn that there was any connection between the discount of this paper and any transaction in which Bradshaw was personally interested, and loss had accrued, a claim might have been made against Bradshaw; but no evidence has been adduced which satisfies their Lordships, or raises in their Lordships' minds any suspicion, that the discount of this paper was connected with any such transaction. The argument, in point of fact as to these items at last resolved itself into this, that there must be a presumption that Bradshaw, the Manager of the Bank, was in some manner in the power of Wilson, from the circumstance that a notarial letter addressed to him by Wilson, subsequent to the date of these drafts, insisting that Bradshaw was still under liability to him in respect to joint transactions, must be accepted as proof of the statements in that letter. Their Lordships are of opinion that to draw such a presumption from such a letter would be much too violent; and the more so, because no evidence has been adduced to shew that, in point of fact, the statements in that letter were not repudiated, or were not objected to, on the part of Bradshaw. J. C. 1867 THE BANK OF UPPER CANADA V. The last and remaining item is in respect of the sum appearing to the debit of Wilson upon the statement of his account with the Bank at the close of the management of Bradshaw. That BRADSHAW, account was overdrawn. It had become overdrawn by reason of an advance of £500 by Bradshaw to Wilson. The circumstances under which that advance took place are fully detailed in the evidence of Mr. Ross, the legal adviser at that time of the Bank. Mr. Ross states that certain security was, under his advice, taken at that time from Wilson to the Bank; that one of the terms of the arrangement with reference to the security was that the Respondent should, on the part of the Bank, advance the sum of £500. Mr. Ross states that he was of opinion that that was a wise and judicious arrangement; that it was made under his sanction; and that he approved of it at the time the arrangement was made. There is no suggestion that at that time Bradshaw had any personal interest in any dealings with which Wilson was concerned. Their Lordships see no reason to think that this was otherwise than a prudent and legitimate advance made by Bradshaw for the benefit of Wilson. Upon the whole, their Lordships think that the case of the Appellants has entirely failed, and they will humbly recommend Her Majesty to dismiss the appeal with costs. Solicitors for the Appellants: Roberts & Simpson. VOL. I. 3 2S J. C.* 1867 July 4. THE OWNERS OF THE STEAMSHIP “VELASQUEZ” APPELLANTS; AND GEORGE ROWLAND BRIGGS AND OTHERS, OWNERS OF THE "STAR OF CEYLON" THE "VELASQUEZ.” RESPONDENTS. ON APPEAL FROM THE HIGH COURT OF ADMIRALTY. Shipping-Sailing Rules-Collision between Steamer and Sailing Vessel-Compulsory Pilotage-Joint negligence of Pilot and Master and crew-Look-out -Damages-Liability of owners. A Steamer was sighted by a sailing vessel at a sufficient distance to have avoided a collision. The Steamer took no steps until the vessels were very near each other, when she starboarded her helm, and the sailing vessel ported her helm to avoid a collision, which, notwithstanding, took place : Held, that the Steamer was alone to blame, as it was the duty of a Steamer to keep out of the way of the sailing vessel, provided she could do it, either by starboarding or porting her helm, and that, on the other hand, it was the duty of the sailing vessel to keep her course, and that she could only be excused from deviating from it by shewing that it was necessary to do so in order to avoid immediate danger. To entitle the owners of a ship under the compulsory charge of a licensed Pilot to the benefit of the provisions of a Statute which exempts them from liability, when a collision has occurred by the fault of the Pilot, it lies on them to prove that it was occasioned solely by the Pilot. If the Master and crew have contributed to the accident, by not keeping a sufficient look-out, so as to give the Pilot the earliest possible information of an approaching vessel, although the Pilot is also to blame, the owners are not exempted from liability for the damage. A CAUSE of collision. The facts and evidence are so fully stated in the judgment of their Lordships as to render any statement here unnecessary. The Judge of the Court below (The Right Hon. Dr. Lushington) held the Velasquez alone to blame. Hence the appeal. The case was argued by Mr. Brett, Q.C., and Mr. Clarkson, for the Appellants, and Dr. Deane, Q.C., and Mr. J. P. Murphy, for the Respondents. * Present :-SIR WILLIAM ERLE, SIR JAMES WILLIAM COLVILE, SIR EDWARD VAUGHAN WILLIAMS, and SIR RICHARD TORIN KINDERSLEY. |