stances, it is impossible to say that $1,500 is more than a fair compensation for the injury sustained by the plaintiff. On the contrary, I think it falls short of adequate compensation, and I cannot assume that the jury would have given less had they believed that fellow townsmen would sustain the loss.

I discover nothing, therefore, in the findings of the jury or in the assessment of damages to indicate that the admission of evidence that the defendants were protected by insurance affected in the slightest degree the verdict of the jury: McCreesh v. McGeough (1873), I.R. 7 C.L. 236, 240.

Towards the conclusion of his charge, the learned Judge very pointedly and emphatically told the jury that the evidence that the defendants were insured should "form no element whatever in the decision." He further urged them "to dispose of the questions without in any way considering whether there is any insurance company behind the defence or not."

We are now asked to assume that the jury disobeyed these instructions, and allowed themselves to be influenced by this evidence, which they were expressly told to disregard; that, notwithstanding the learned Judge's directions, because an insurance company might have to pay it, they were induced to give a verdict different from that which they ought to have rendered and would have given if they had not been informed that the defendants had an indemnity.

In the absence of any indication of impropriety in the verdict itself, I must decline to ascribe to the jury such injustice, such a yielding to unfair considerations and improper motives, as a judgment in favour of the defendants, necessarily based upon an opinion that there had been a substantial wrong or miscarriage at the trial, would imply. I find nothing in the present case to justify such an opinion. On the contrary, everything here tends to the conclusion that the verdict is just and fair. In these circumstances I cannot think that the defendants are entitled to new trial because they may have lost some benefit of such adventitious circumstances as their local importance and influence, to which the jury could only give consideration and effect if prepared to disregard their oaths and to award to the plaintiff less than fair compensation. The object of the Judicature Rule is, as put by Holmes, L.J., in Tait v. Beggs, "to prevent one of the

D. C.

1908

LOUGHEAD

บ. COLLING

WOOD SHIPBUILDING Co.

Anglin, J.

D. C.

1908

LOUGHEAD

v.

COLLINGWOOD SHIPBUILDING CO. Anglin, J.

greatest hardships in legal proceedings-an unnecessary second trial." To quote the language of Walker, L.J., "it would be unjust to both parties to have another trial, and when I come to that conclusion, it is just the case for the application of the general order, and serves its object."

But, while I am satisfied that the present appeal should not succeed for the reasons which I have indicated, it appears to me to call for this observation. Where, in cases not within sec. 102 of the Judicature Act, counsel has improperly taken a position apt to unfairly prejudice the interests of the party to whom he is opposed, and especially where, notwithstanding objection, he deliberately persists in such a course, if the trial Judge should summarily dismiss the jury and try out the case himself, his action would, in my opinion, be not only warranted but most commendable.

G. G.

1907

Dec. 16.

{[TEETZEL, J.]

BECHTEL V. ZINKANN.

Trusts and Trustees Shares in Company-Trustee for Several Beneficiaries-
Right of One Beneficiary to Apportionment.

Where a trustee held a number of shares in the capital stock of a company in trust for several persons, each of whom was entitled to a certain proportion of the face value of the same, but no provision was made for sale or division of the stock, and no time was fixed during which the trustee was to hold, and one of the cestuis que trust brought an action to compel the trustee to transfer to him a portion of the shares equivalent to his interest, but the other cestuis que trust were not made parties to the action and objected to the transfer being made:

Held, that, independently of the question of the interests of the unrepresented cestuis que trust, the trustee could not be compelled to discharge his trust piecemeal.

THIS was an action tried before TEETZEL, J., at the Berlin non-jury sittings, on 5th November, 1907.

A. Millar, K.C., for the plaintiff.

Dunbar, for the defendant.

The learned Judge reserved his decision, and subsequently delivered the following judgment, in which the facts are fully set forth.

December 16. TEETZEL, J.:-The defendant is trustee for plaintiff and six others (one of them being himself) of fifteen shares of the two hundred shares of the capital stock of the Silver Spring Creamery Co. These shares were issued in part payment of the purchase money for the assets of another company, in which the cestuis que trust held stock amounting in all to $1,060. The plaintiff's holding amounted to $430, so that his interest in the fifteen shares is a trifle over six shares.

The action is to compel the defendant to transfer to the plaintiff six shares, damages for refusal, and an account of moneys received by the defendant as such trustee for the plaintiff's use and not paid over.

For the defendant it was contended that one of several cestuis que trust could not compel a trustee to be relieved of his trust in piecemeal or to apportion a part of the trust property and transfer it to the plaintiff.

Smith and Snow v. Snow (1818), 3 Mad. 10, is authority for the proposition that where the trust fund is a certain ascertained sum of money of which the plaintiff is entitled to an aliquot part, he may maintain an action against the trustee to recover his aliquot share without making the other beneficiaries parties.

I am unable to apply the principle of that decision to the present case, because, while it is plain that where the subject of the trust is an ascertained sum of money, the payment to one of the cestuis que trust of his share could not affect the rights of the others or the values of their shares, it does not follow that where the subject of the trust is stock, the rights and interests of the others interested may not be affected by transferring a portion to one of the beneficiaries.

The defendant, as holder of the fifteen shares, has a voting power in respect of them, and circumstances might easily arise where he would hold the balance of power between rival factions, and thus be able to control the election of the directors and the business policy of the company, while he might not be able to do so without the six shares. Then there is the fact that four of the cestuis que trust would, upon a sub-division of the shares, be entitled to less than one share each, which would leave them without a voice in the affairs of the company, for there is no provision in law for a holder of less than one share being entitled to

Teetzel, J.

1907 BECHTEL

v.

ZINKANN.

Teetzel, J.

1908

BECHTEL

v.

ZINKANN.

vote at meetings of the company. Under the trust arrangement each beneficiary has an interest in the franchise that may be exercised by the trustee with reference to the fifteen shares, and no order should be made in their absence which might in any way impair or prejudice the value of their holdings.

Evidence was given at the trial that all the other cestuis que trust object to the transfer being made to the plaintiff.

Independently of the question of the interests of the unrepresented cestuis que trust, I am of the opinion that, under the circumstances of this trust, the defendant cannot be compelled to discharge his trust in detail. The defendant is simply a trustee for convenience, holding the shares in trust for the plaintiff and others, no provision being made for sale or division, and no time being fixed during which he is to hold. As stakeholder of the property, he must hold the scales evenly, and see that the rights of the several parties are mutually respected: Underhill on Trusts, 6th ed., p. 296.

In Goodson v. Ellisson (1826), 3 Russ., at p. 594, Lord Chancellor Eldon expressed the view that a trustee could not be called on from time to time to divest himself of different parcels of the trust estate so as to involve himself as a party to a conveyance to many different persons, and he puts this question:

"Has not a trustee a right to say, 'If you mean to divest me of my trust, divest me of it altogether, and then make your conveyances as you think proper?' I have been accustomed to think that a trustee has a right to be delivered from his trust if the cestuis que trust call for a conveyance."

This case is cited in Godefroi on Trusts, 3rd ed., p. 583, as an authority for the proposition that a trustee cannot be required to convey the estate piecemeal at various times: see also Lewin on Trusts, 11th ed., p. 860.

The action must be dismissed with costs.

G. G.

[IN THE COURT OF APPEAL.]

MONTGOMERY V. RYAN.

RYAN V. BANK OF MONTREAL AND MONTGOMERY.

Banks and Banking-Overdrawn Customer's Account-Promissory Notes-
Collateral Securities-Transfer to Third Person-Inspection of Customer's
Account Bank Act, 1890, sec. 46-Interest-Compounding.

R., having had an account with a bank for many years previous to the 16th
July, 1906, was on that day indebted to the bank in a large sum for moneys
advanced, for which the bank held securities pledged to them by R. and
a promissory note made by R., payable on demand, for a sum larger than
the amount then due. M. had been negotiating with the bank for an
assignment of the debt due by R., and had been permitted by the bank
to see the entries in their books relating to that debt, and, on the day
mentioned, the bank assigned to M. the sum due and all the securities
held by them, covenanting that the sum named was due and to produce
and exhibit their books of account and other evidence of indebtedness,
etc. The pledged securities were handed over to M., and afterwards the
demand note, upon which he sued R., who brought a cross-action against
the bank and M. for an account and damages and other relief:—
Held, that the bank were not prohibited by sec. 46 of the Bank Act, 1890,
from allowing M., for the purposes mentioned, to inspect the account of
R. with the bank; that the agreement was not invalid; that M. was en-
titled to succeed in his action upon the note; and that R.'s action failed.
Held, also, MEREDITH, J.A., dissenting, that the bank were not entitled to
charge R. compound interest; but where the bank had made a discount
or an advance for a specified time and had reserved the interest in advance,
this should be allowed; in other cases, where there had been an over-
draft, and payments had been made, interest should be reckoned up to
the date of each payment, and the sum paid applied to the discharge of
the interest in the first place, and any surplus to the discharge of so much
of the principal.

Judgment of CLUTE, J., reversed.

THE action of MONTGOMERY v. RYAN was brought to recover $12,789.24 and interest at 6 per cent. from the 16th July, 1906, upon a demand note dated the 16th November, 1905, for $17,240, with interest at 6 per cent. until paid, made by Peter Ryan (the defendant) to the Bank of Montreal, and transferred to Montgomery, the plaintiff, by the Bank of Montreal, with certain collaterals pledged by Ryan to secure his account with the Bank of Montreal.

Ryan, by his defence, denied indebtedness, and alleged that the note had been paid by collections made by the bank, of which only partial credits had been given; that the bank held as collateral a claim against the Ashcroft Water Electric and Improvement Company (hereafter referred to as the Ashcroft Company), upon which the bank recovered judgment for $3,325.60 and costs of

C. A.

1907

March 25.

1908

Jan. 22.