From  the  judgment  of  the  Court  of  Comlnbn/  Pleas  the    respondent
appeaited'to  the  Court'Of  Appeairfor  OntariopWhicfralloWed.  thesaid  appeal  V
with  costs,  and  directed  that  the  rule  nisi  in  the  CourtofGoiiiiSQOn  -Pleas


314
New  Trial — Continued.
should  be  discharged  with  costs,  on  the  ground  that  the  question  as  to
whether  the  note  in  question  was  a  composition  note  or  not  wag  immaterial,
and  that  there  was  no  evidence  proper  to  leave  to  the  jury  on  behalf  of  the
defendants,  and  the  defence  set  up  was  not  maintainable  in  law  upon  the
undisputed  facts  in  evidence.
On  appeal  to  the  Supreme  Court  of  Canada,  Held,  Eitohie  C.J.  doubt-
ing, and  Gwynne  J.  dissenting,  that  the  judgment  of  the  Court  of  Appeal
should  be  aiffirmed ;  that  the  deposit  in  the  defendants'  bank  was  for  the
specific  purpose  of  meeting  the  notes  due  that  day,  and  the  manager  was  not
authorized  to  apply  the  money  to  take  up  the  note  in  question,  and  there  was
no  ratification  by  plaintiff  of  his  act.  The  whole  case  being  before  the  court
on  undoubted  evidence  it  was  unnecessary  to  refer  it  to  another  jury.
Per  Gwynne  J The  case  having  been   tried  only  upon  a  question

wholly  irrelevant,  as  to  whether  the  note  in  question  was  a  composition  note  or
not,  and  nothing  else  having  been  submitted  to  the  jury,  the  verdict  was
the  result  of  a  defective  proceeding,  and  there  was  a  total  miscarriage  which
could  only  be  rectified  by  a  new  trial.
