Judicial Comity

Cooper v. Molsons Bank, 1896 CanLII 22 (SCC), 26 SCR 611

[Page 620]

fore is that they have been and are making profit of this money belonging to the appellants, for which they render no account to the appellants and give them no credit by way of interest or otherwise, whilst at the same time they are seeking to charge the appellants with interest on the judgments which they have recovered.

As regards the point of estoppel, I am of opinion that it constitutes no answer to the counter claim of the appellants. Under the system of pleading introduced by the Judicature Act, it has been decided that res judicata as a defence, or as a reply to a counter claim, must be specially pleaded. This was decided by the English Court of Appeal in the case of Edevain v. Cohen[22].

This consideration alone is sufficient to dispose of the question of estoppel, and upon it I am of opinion that we ought to decide this point against the respondents, for, having regard to the way in which the appellants were forced into the trial of the issues, which involved no question of fact but a mere question of law, no amendment ought to be permitted. Further, I agree with the view of Mr. Justice Maclennan that the question litigated in this action, brought to recover on notes which were not even due when the issue was directed, cannot be considered as the same identical question as that involved in the issues, although it may depend on the same principle of law, and might therefore, according to the established rules of judicial comity, be binding upon inferior tribunals and courts of co-ordinate jurisdiction, though not res judicata binding on appellate jurisdictions. I consider, therefore, that the whole question as to the rights of the appellants and the obligations of the respondents as to the application of this money in the hands of the latter, derived from the collaterals, is at large.