IMAGE EVALUATION TEST TARGET (MT-3) si.. ■.-i * I.I l»V/ , lU ^^ *"" lU 1)4 140 li£ 1.25 i 1.4 I 1.6 Photographic Corporation > 39 WnT MAIN STtllT WIMTM.N.Y. USM 4S03 <>"^ ^<^^ cihM/icmh Microfiche Series. CIHIVI/ICMH Collection de microfiches^ Canadian Inatltuta for Historical ly^lcroraproductiona / Inatitut Canadian da microraproductiont liistoriquas ■ - ^ ^\ ' • 5 p ^ Tachnicai and Bibliographic No / *#' IK kffui iMi snntni Mvn ittntiii. ■■! JOHN G. McKENZIE, et al., \ {Garnishees below,)' ' , Appellaiits ; AND ' DUNCAN MoFARLANE, {PMndff contesHtig Oarnisltet'a declaration below,) ' Resfomdeht. 'i^3?j?iiaafflS's mm. This Cause has been before Ihis Cburt on an appeal by McFarlane from a judgment rendered on the 88nd May, 1866, dismissing his contestation and moyens of contestation to the declaration of the now Appellants as tiers saisia. The original action was brought ■ by McFaflane against William H. Delisle, on a promissory note dated Hth October, 1853. Judgment was rendered in favor of McFarlane, on the 23rd October, 1854, and in December following a writ of aaWe arret was issued, returnable on the 19th, to attach the goods, monies, credits and effects of the Defendant in the hands of J6hnG. McKenrie, merchant, William Wbiteford, merchant, and John Lovell, prmter, as tiers saiais. Each of the tiers sains appeared and made a separate dedaral ion to the effect that he had nothing in his hands. i McFarlane contested the several declarations of the garnishees by one contestattgn, in which is in effect alledgeAIhe Defendant's insolvency ; that about the 22nd Septem- ber 1854, the garnishees, contriving with the Defendant, fraudnlenUy, and with a view to defeat Plaintiff's recourse, to force the Plaintiff to grant a discharge to Delisle, bad tftken all the effects of the Defendant into their own hands, and had realized the sajme to their own use jointly and severally ; and with a like fraudulent intent and concert, had caused a notarial transfer of ftil the said property to be made by Defendant to John G. MoKenzie and William Whiteford. That MoKenzie and Whiteford sold all the property, estate, and effects of the Defendant, of the value of £6000, to Johp Lovell, for the sum of £2263 168. lOd., ackno\frledged in the deed of sale ; that the garnishees contrived to delay the Plaintiff's judgment and were liable to the Plaintiff for the full value of the property so fraudnlently taken and sold. Conclusion, that theattftchment be declared good and valid, and the several declait- tions false and fraudulent; that the garnishees be jointly and severally condemned to account for the said several sums of money ; that the assignment and sale be'declared fraudulent and the ^garnishees jointly and severally condemned as personal debtors oi the Plaintiff for his debt, interest, and costs: ' ■ The garnishees severally answered the moyens of contestation by an answer m law, and a hearing was had on that fyled by Whiteford, one of the Garnishees and Respondent in the appeal above alluded to, which answer was based on two grounds. 1 That the Respondent was summoned to appear and answer for Himself person- ally and individually, and did so ; that be was not by law bound to answer a .jpntesta- tion of the declaration of other garnishees, and the Plaintiff should have contested the Reapondent's declaration aeparalely, and the contestaUon as made, was illegal and ^ "*^. That It appeared frj.m the conteslatlon, that it waa fyled aftet t^ eiplHag of the delay alk>w«d by the Rnlea of Pnetic^ ^^ ?*'• T^e judgipent then appealed £rotn ^wmiw|^,^t|ie contestation of MipFarlane. The ground assan^d^n th^ (^butt 1belo\vf, as wepju>i^ (ujj^ wa? t^tit eac^ cc^station shonld have been separate, and^ tender separate issuesfthe rights of each of the tiers acAtit being distinct ; and that whatever might be the nature of the allegations of contestation, eateh tien taiti had rig|)t to jji^ve his case kept clear of every other contestation, as well after, as before bis deciaraiion; afid that 'aniy otlfer practice' 'must lead to the greatest confusion. The court of appeal, as will be seen from the judgment copied in the appendix, held )he allegations of the ooute8tatioosufficient,andthat clear allegations of fraud and collu- sion as wi^ll on the part of the Garnishees, as of the Defendant t^ made out in proof )varranted a joint and several condemnation against the garnishees. After the rendering of the judgment in appeal, the case went to enquftte in the Superior Court, and the. Judgment now appealed from condemned the Appellants, McKenzie : and Whit^fpr(], jojptly and severally, as mentioned in the Judgment copied in the Appendix : — , - Three witnesses were examined in support of the contestation, Gaclt, Baxtbr and Walker, three of the Defendants creditors. None of them proves any fact or cir- cumstance indicative of the fraud or collusion alleged. Gault says, that in March, 1854, Delisle stopped payment, and that his firm took their old debt, some £66, in goods, Delisle offering to pay his Creditors in goods, or to pay in cash by instalments with delay. That his firm ranked for their new debt of about £40 under the deed of assignment. In his examination in chief he mentions that in.Af^rcb, 18^4, the witness "observed to Delisle that he had a large stock of goods, " which, he represented as amounting to X&QQO, and frpm appearfuioes, I judged that "his estitnate xvas not oiit of the way." Croi^s-examined he s^ys, " I did not examine the state of his ayP||||pp^ at e^it.b|e; q| M^ " I'ailuies so as tube able to si^y what his estate was worth." Queslion. — " Do you know, any circumstance whatever, to leai^ you to suppose that " there, was any fraud on the part of any of the Garnishees in this cause? < ^^fccrsr.— '".No r'do not. I cannot pretend to tyre^j; to the value of the stock. I " only state \vhat Q^lisle mentioned to me." Baxter says, he also took goods for his account saveVCfiO pr £70. Hea^dsthat " D^Usje ofibredj[09ds to those who were w^ing to accept them. 1 siiw his stock at 'Vth^t tinie, (iUtjp'cA,. 1854,} which to me, appeared large f(Hr bia business." His (yrcMS-exantination was as follows : — " The defendant stoppc|d payment in ' March, 1854. He thi^n went on with .tbe^ business.fQr six liiqntbs. 1 was not acni^i- " t^r at the tine of his secopd stoppage." ■ ,fii^«(ton.— "Do you know any circqmittance whatever, to lead yon to suppose that " (here was any (raud on the part of the, Qarnisbeea ?" ,(l»Mtr?r.—", No,, nothing whiHever," ..WAifKKB sUte»,,that i'n,4C7r(A,. J954, he thpught the stock so good from its app«»f> 4nce that he wo^ld get 30s., in the £, and that, he noderstood, and Lelieved it l|p| worth that sum. When Cross-examined, he states be does not know wiiat the stp«k was in Septjomber, 1854, when, the assignment was made, adding, '^ The estate was getting wprse and " worse, and I believed it was for the beufsfit of tbe estate that this aafignment should ♦♦ be made, and I became a party to it, and I tpok Mr. WhlWford's word, as tp how the " ciftnte was going, he being a large onditor." Question. — " Have you a knowledge of any fiitcl or ciroumstanoe to shew tbat,a|iy of "the assignees or Garnishees act<;d fraudulently, or so as to duninish the, fund for the *' Ueiwfit of tbe cre4itors ? If so, state the same. Antwer.—^* No. I consider whatever was dw»e by the assignees, was done for.tj^ *< bene^ of the estate." With such evidence alone to support the extraordinary allegations of fraud )Mid collu- sion on the part of, the Garnishees, it was wtwily unnecessary for the appellants to enter into evjklence. They did examine five witnesses. From their evidence it would appear 1 that about a year previous to the assignment, lieiisie seiiiea wnn some oi nis ci^uors . by giving them stock In trade for the amount of their debts; and with <^heri, by getting • . _ ;■'■ ' ' " "■:■ . ' % . ■ - - ■ ■ ■ - . . ■ - ■■...: .',■■-■■ - ,"■'.-■■■■■ ■, i \ ''■■'■ -■J'.- ■''-■".■.■ "^^ ;/ !" - "'1 — ■ ■;■ \'--; ■■ ^■■^^v■^ ■■^' ■■■^i'-_ ,*• -'■ :»"';■ ■■ "/• "; "'■ ■■■ . '■.... il * delay and agreeing to pay 20s. in the £ by installmenU of ta. 6d., each payable every three months. Two of these only were paid, the stock was becoming in a , worse .posi- tion, an^ as a last resort, the assignment, characterized by the Respondent as fraudulent and ooHutive, was made, with the consent of all the creditors, exowt the Respondent* 'Tbia stock which Was left was but the refuse of a fancy dry goods i^k, with but few, . staples ill iU yto comniission or remuneration of any kind was paid to Messrs. McKenzie and Whiteford the assignees. The witnesses for the Plaintiff agree with' those of th,e Appellant, that the best P988ib'le arrangement for the. creditors w^s made. S*fi*lHsa;^8, "'witness examined Dellsle's stock, considers the sale by Delisle's " assigiiees As the best thing that could be d'one for his creditors." titftqtrHODjr j/ay» the same thing, andi adc(s "that he knows nothing to induce " hith t6 biBlieVe that the! assignees did not act ili good faith. Witness was in gottt any One e)w. He Wa» With diffionlty persuaded to buy, and I have reason ^llo believe ho lost eotisiderably by the transaction. I wanted Mr. HeKenzie as the «* largest creditor to buy it, but he said he would not give 88. iil the £ for it, and I " decidedly would not like to have done it either. I have seen stocks sold from Os. 8d. " to Si. in tbe £. I have had mudlr experience of bankrupt stockp, but never knew ' »• a worse *ne than the one in question. This stock was sold to Lovell at 10s. in the '• £, (*ll round) afid was considered by all the creditors as Well as ourselves dq excellent M'fli^le. We had a great deal of trouble in the (natter and charged no comniissiun. ••Tbe creditors generally expressed thonis^lves (atisfied." It will be Been from the inscription (No. 56 of record) that the caae was inscribed " for hearing on the merits for the 23rd December, 1868." It was argued and taken en Miheri. On the 28th February, 1859, the Honorable Judge who heard the case rendered judgment in favor of the now appellants, and the contestation of MoFar- lane was dismissed with costs, on the ground that the contestant had failed to establish his contestation, or that any fraud or collusion had taken place. On the 3rd March a writ of appeal, returnable on the 18th March was taken by MoFarlane and served upon the now appellant's counsel in the^juual way, with the names of two sureties, and with notice of security for the 7th Mar6)i. This security was not put in. The case was taken back by the Judge, aud on the 31st March another contradictory Judgment, being that now appealed from, was rendered. This Judgment, and it is submitted, ought not to be maintained for the following amongst other reasons. 1. The cpntestant entirely failed to prove the allegations of his contestation. It will be seen on examination that the contestation rested on the following allega- tions : That the Qamishees " contriving and intending to injure, wrong, and defraud the " PUintiff, and to defeat his recourse and legal remedy against the Defendant, and to " deprive him, the Plaintiff of his juat share and proportion of the defendant's goods, " property and effects, and with a view, unjustly and illegally, to force and coerce the " Plaintiff into granting a discharge in full, without any adequate consideration, which " the Plaintiff was not and it not bound to do, — had all the said estate, stock in trade, " merchandize, fixtures, monies, notes, securities, policies of insurance, debts, assets " and effects, without any estimate or proper valuation thereof, taken into their owto " hands, custody, possession and control, and assumed to be the owners and proprietors " thereof, and converted and appropriated tke tame for their own,iue and profit jointly and " teverally, ^d they then and there held, and have ever since continued to hold, and " do now hold the whole of the said stock in trade, goods, merchandize, fixtures, monies, '* notes, securities, policies of insurances, debts, assets and efiects in their own hands, " power, custody, and control." - ■ Next, that " with a view to< frustrate Plaintiflb remedy, the Garnishees, contriving " with the defendant caused, and pretended to cause a certain pretended deed of assign- " ment to be made," and had sold the estate and effects to Lovell for ;£2263 168. lOd., which sum it is alleged " the said John Gordon McKenzie, and William Whiteford at " the time of the issuing and service of the taitie arret in this cause had and still have " in their power, custody, and possession, as well as a further sum of £iZ5 which they " had previously got from the defendant, but subsequent to his insolvency, under -pretence " that they were thereto entitled as a payment o/eo much in the pound of their respeoMve claims " and as creditors of the Defendant." Next, that the stock in trade, &c,, was of the value of six thousand pounds cur- rency, and was fraudulently sold ; that the Gvnishees were liable not only "for the "said sum of .£2263 16s. lOd. currency, the alleged price of the said stock in trade, " goods, merchandize, fixtures, monies, notes, &c., and the said sum of j£425 currency, " making together ^£2688 16s. lOd. currency, but for the sum of ^£6000 currency, the " actual value of the said stock in trade, goods," &c. ' Next, that '* with a view to carry out their purposes as aforesaid, and to frustrate " and defeat the Plaintiff in seeking his lawful recourse against the Defendant, they, " the said John Gordon McKenzie, William Whiteford, and John Lovell, in concert with " the Defendant, caused the Plaintiffs demand to be disputed, frustrated, and delayed, " although they had no just cause for so doing, until they succeeded in making the "appropriation of property above alluded to, which they could not have done had the^ " not so disputed, frustrated, and delayed the Plaintiffs remedy." , Next, that the declarations of the Garnishees " were, arid each of them is false " and untrue, and the said Garnishees at the time of the service upon them respective- " ly of the writ of attachment in this cause, were jointly and severally indebted, and " had,andheld in their hands, custody, power, and possession, monies, property, goods, " merchandize, 8ecurities,-debta, credits, assets, and effects, o/and belonging to the De/hn- " dani of the value, and to ^he amount of Six Thousand Four ^Hundred and Twenty- ■ t " Five Fovuda, Cf\fereaQj, an^upwi^r^; asftbove moi^ partieularly speoified, wbicb thev " hoi anjuBtly and wrongfuUy Uktin jftnd appropriated in manner aforeaaid, and tm " which they are accountable in this cause." The ooacluaions folio wing such allegatibns of fraud were, that the seizure be deelared valid, and that the declarations " may be declared false and fraudulent,, and " %e overruled and deelared null, and of no efikct, and that the ^bove-mentioned p^e- " tended deeds of- sale and assignment may be declat^d null and void, ^andi^ of ". up efieot 08 regards tlie, l^ud' HaintifiT" ; and that the GhMmishees be jointly and seve- • rally condemn^ to account for the sums (rf ^£3668 16s. lOd., and the stock, &o,, " the ^ " whole thereof amounting to ^6423," and that they bejoiiitly and severally declared liable for the same, and " be jointly and severally condemned and declared the persona], " debtors of th^aid Plaintififa for the amount of hir s^d' debt, interest and costs, vid '« subsequent cmts." " . These allegations plainly rendered proof of fr&ud and coUusiou necessary, or that thf Garnishees had property or effects of Jthe Del^dant in their hands. No such proof was made } the fraud was alleged only, and manifestly^the allegation could not be taken aa equivalent to proof of fraud, or so as to aitifb the onus upon the Qarnishees. ') Itis submitted tbat it appears from the record,Hhat the good &ith of the Garnishees is esta- '^ blisbed, and proof made that the assignment and sal6 were in the best of faith, and were bene^oial to the creditors. ' -^ The only ground ufpn which a joint and several condemnation could be given — there being no joint and several contract — was not nuide out, namely, fraud and col- lusion. '*" : - 8. Thejudgment treats the Gamisheea as if the proceedings taken, were by action to^ account for monies belonging to Plaintiff, or an action to be allowed the advantage of the asaigqmenti. The cdhtestation is not equivalent to such an action; nor to an action to set aside and annul the assignment on the grounds of fraud. To enable the Court legally to set aside the nssignmcnti all the parties to it must be before the Court. Here none of the creditors, parties to the deed, were setved either with the writ or contestation. The Defendant, Delisle, was not eveli served with the rule or vriti^ the' contestaticin, although his fraud and complicity with the Garniihees, is alleged as the ground of the contestation ; nor was any appearance fyled on his behalf. J 3. The grounds taken in the special answers, aUbough held by the Court of Appeal not to be sufficient to dismiss the contestation on demwrrer, ought to h&ve been maintained on the merits, That there being no proof of fraud, there cpuld be no joint and fteveral liability against the Garnishees ;■ that under the deed- of assignment, the Ghunishees, Whiteford and McKenzie, did not become the personal debtors of the Defendant, but were simply Assignees, Trustees, or Mandataires, acting for him and - for the creditoTB, and were bound to carry out the assignment in, good faith, according to its terms. It will be seen ttiat the Garnishees take the groundH;hat the seizure (umie arrtl) in their hands as actually made, called simply for a declaration oA oath as * to what each of tto ^ j OT JtJiees, individually and personally, owed or^had iif his hands belonging to the TM HjP n nt. This declaration was made in conformity with truth and the facts of the lamf The assignment was carried out in good faith, and by reason thereof the Gamisbees, Whiteford and MfsKenzie, did not become at wiy time person- ally the debtors of, or liable to the Defendant ; that, as McKenzie seta up in his answer, "even if the said party now pleading had been bound to answer on oath, and fyle bis , " declaration iu obedience to the said writ in his said quality of Assignee, l^rustee, " Agent, Attorney or Mandataire, yet that the declaration made by him was never- " tbetess true, and well founded in fact ; • • • • and the said party now plying " cannot by law be made responsible for the said alleged acts, frauds^ or omissions of " the said William Whiteford, John Lovell, and William H. Delisle, or any of them ;'^ " • • • nor can he, the party now pleading, be condemned, jointly and eieverally, " with the said parties, or either of them." It will be seen that the answer of McKenzie & Lovell to the contestatiou of ^ Plaintiff did not allude to a note given by Lovell, as part of the consideration of the sal^. "A y ... ■ ^w-.- •«• .% \ /^ .4\ jMi 6 ,. -jf*. ' • " • y f ' ■ , ^ >r ' In point of iaot, Whitefdird'a» acting aatignee, alone had teteived tbit note, tod he alleged in his assignees tnat if be delivered to the Plaintiff if so ordered by the Cowl, and prays, fnr: ther that the part^ pleading by reason of Ms good faith be not in any everit condirmfied toiobsts; , .'>*'■ It will be seen that even if this: note were to be tre^d as proof of .the falsity of the d&claration of Whlleford on oath, and as being the property of^thb Defendant, yet the judgment rendered does not order iA« mtte tb ]fe delivered qp^by Whileford, who alone refers to it, and Whose admission on the record, in hirown separate and di8tinc» answer conld not bind McKenzier The judgment condemns MoKenzie & Whrteford^ jotly and severally to pay. an indefinite afnonnt within fifteen days, in defaalt of which' a joint and general condemnation is rendered against ihenr for £211 7s. Id,, interest »nd costs. * ' ' y 4. Assuming for the sake of argament that the taine arrUHn the bands of the gu- ' ' nibhees as taken, was net taken against each garnishee as an individual, aqd" that it was . r . not legally answered by them in their individual and peisonalcharaotef^ssnming also, that there was falsity in thei# declaration on oath, and that the note was the defendants property, '' assuming also, that the admission By a'pkading of one gamishe6 could bind the other, that other being simply co-assignee or joint mandataiie, and that it was $ompetent fdr .the Plaintiff to produce against the ganiishe^ as sammonfed, the assignment and sale ' ' to which^they were parties in their capacity, notwithstanding these assumptions mention- ed, the judgment, it is respectfully submitted, should qply ha»« ordered the note or security to be realized, or ii most handed over to the Plaintiff, unless indeed the fraiid alleged, had been out in proof. " ' ' ' , 5. The fact of the assignees taking; a note for a part of the stoek sold, eannbt be held to subject tfiism to pay the note tbemdelves, unless some negligence or fraud |s she^n, •' stlill'lessooght ittoBUbj^t themtothepa)/in«n{ of dowbU the amount of the note. Even a paid agent may take a note for a debt due to his principal, luless direct inftmotioihs were given to the contrary. If tbe fact of WhiteforS^ as assignee, holding a note of LovMb payable to Lovdfi order, constituted Whiteford & McKeiisie, jointly and severally the personal debtors of the De/endant to the extent of the note, the judgment should in no case have gone furtber than a condemnation for that sum. J ' , 6. The judgment as rendered is vague and uncertain. It condemns the garnishees ' McKabzIb fc Whiteibrd ** to account bii4 P^^X their saiddividend or rateable proportion up6n the estfllte of the Defendant, and 5f the consideration of the said deed," without mentioning what is that proportion or dividend. It also arbitrarily fixes a sum t6'''be paid, and conden^ns them to the penalty of ' pfiying the wjiole debt^ unless this undefined dividend ia paid and aoooiinted for. ' In* cases of- eompUibki, where the precise amount due the Plt^inHfT is nqt ascertained, through Defendant'' $ default ; e valued, — the Court may ordenan indefinite sum to be paid by way of penalty, or even the Plaintiff's whole debt to be paid. Here tbe note ' might be delivered dp, or the Garnishees .ccmdemned to guarantee its payment, or even to pay it Wiliin the fifkeea days ; but this is ve^ Sifferent ftom the judgment rendered, which declares they actbd in good faith, and yet condemns them jointly and severally to pay ^e wbt>le of Plaintiff's debt and costs, and the unaiceHained subsequent costs, as well as tbe costs of contestation. • " The Qther*ireditors of Deliele had a right for themselves to consent to th4 assign- ment, and to ratify tbe sale to Lovell, giving Delisle a discharge for their own. debter. N •>> ■i I n :rr^ '■i In doing, so thiy viol^ied no Iaw ; and the GamislMes, aamming theta to hive sAted in. good fidth, an not imbjeet to penonal eandemntition fin the anumnt of the Reaponde^t's debt. ^ , MeFulane was not bound to consent to the assignment, and give Deiisle a dis- ohaige ia full. He^had bis-option to treat the%ssignment as a^adnlent one, and seiiv the Btook,even before judgment, and tlmspiiBvenV the assignment beii^canied out; iahb ^ had a right to bring his aotimi to^iet the 'benefit of the assigiunent inesf^tive of the diachuge in full, at an aotIon.'ito aet aside tha virholc assignment as concertedand firandu- ., leatf.and to render the^paity oi Rarties guilty of the fraud, respo^mble for 4heir fri^ndu- Int acu to the extent of. his itebt. ' . * > . This he hnd'not done and it is submitted that the judgment, ^slnow ^ndered and afi^aled fioip, oagh't to be' reversed. ' . * .' . , '^ A." k W. ROBERTSON, ^ Attorneys for AfpeUatU. Mbntieal, Sept^ 1st, (859: ' ,' V ■ ^ * >♦ »- • J S ^ .cT- /■ J ^ ■J V >'■ ■ ■ '-•- - "■"' ■ Tt. "■' ■^ • ^' • '^ ■ ,r -J » ; ,- "^ ♦*iV •- ' ■■ ■ ■' . f ■ \. * s . ■ V ■ '. • * c ..^y n,! : ' <^ ^" ^^■^^ ^^^^ ■ " . » ' ■ rr ■ t / -» 1 » , ' , ( -t • ' . •■ ' ■ ■ F .: i< . ■ • , V* ^ , f . ■■.■■;, - ?'■■" ■ ' ^ ■' :''" *"";■■ --i /'■■■ !V..-,;,.: -\v.- ■- ■ ■ <> , ■ ?•..... ^ ;; ,, :.; .i.^ lO -a-r 9 :::■- ..;i:I :;;::?N,- f.; ■!/'■. ■■'■:';-i. 1 ...»-■■'"-'■; ' ,. ■ ■ :';■■■■, . , * . 1 • - ■ .' '..^ . 0- ■ ■•■■■ . ■ I .'.M ■ .i, ■ " ' ' ■ ■■ ■'' « . i -' >',,': ' . ■■' /. ''■•^'l'' .. ,^.., ,:,;..,• - -•..■ - v*V ."4 t 1 ■;;:i I • 1 ( I 4 f i i I I t I I I ( c 1 c I f I I I t t I t t \ ■-^v- *-4' * ■■ *,. ''\ APPENDIX. . <; Copy ofJwdgmaU a* rtndeni on the 9lit March, 1859. thundsy, the31>tdayofMarohU869. < , , . , PuMKirr :— The Qonorable Mr. Jiutioe Badolbt. " the Court haVing hterdiliiBj^m, by their respective CoudmI, upon the merits of th<6 contestation raised by' the sidd Plaintiff to the declaration of the several (Mrt taitit in this cause, and upon the merits of the <2emaiid!e en toine arre(,-^having examinecl'' the proctndinga, proof of record, and deliberated :— Considering that the said parties contesting the declaration of the tinv Mm*, by them ' severally filed in this cause, have not Mtablished the material averments of the said contestation V and considering tl^at that the said tien taUii, John Qbrdon Hc&eiisie and William Whiteford, became in good faith, under and by virtue of the deed of assignment to them made by th^ defend- ant, as in his said contestation alleged, the assignees of' the estate of the Defendant— to wit, of his stock in trade, debts, and effects— Mid trustees of hk said estate for tlie benefit of his creditors, with power to realize, the said estate for the best advantage of the said creditors; and did in like good fiuth, and for the like advantage of the said' creditors, as such assignees and trustees, realize the said esta^ by selling the same to John Lovell, another of the said tier$ muU, by deed of sale^to him, by them made, as in the said contestation stated, for the consideration in the said deed of sale set forth. And considering that na fraud or collusion hath been established against the said tier* ' laisU, or either of them, as alleged in the said contestation, by reason of the said assign- . ment and sale severally made as oforesaid,— doth dismiss the contestation as regards the * said tien $amt John l4gM, but without costs. And considering that in and by the ' said deeds of assignmeflQRd sale, the saidJohn Gordon McKenziei and William White- ford, assignees and trusses aforesaid, became entitled to- receive and received the said consideration-money of the said sale, for the benefit of the Defendant's creditors, and ^ among others' o^ the contesting parties, and as such have thereby to account and pay'j to the said pontesting party their dividend or rateable proportion of the said consi- deration as and upon the amount of their claim against the said estate, notwithstanding , the clause in the said deed of assignment contained, limiting such dividend or propor- tion to the creditors consenting to Defendant's disAarge by virtue lof the said deed of ' asseignment; which said limitation is by this Court declared to be ineffetfual with reference to the claim of the said contesting parties .— ifoth maintain tfefl*ild contea- tation in respect of the said dividend and proportion, and doth condeinn the said »Wy and leverally, dit- traitt to Heasieurs Gross it Bancroft, Attornies of the said contesting parties and Phantifi, par riprUe d'inUamce." (Signed) HONK, COFFIN A PAPINEAU, P. S. 0. xislh-. : ■* n No. 8. 0>py ^JMd|^M«ia wuknd in appeal in UcfkHUvti ApptUtM vt. Whitefoud Rupmidm. 18 March, 18^-'' > ^^^ v,;.. .,.^ „ ■' .; .-.,...-.' ... .. ■> lo. Conridtfrnnt qu'«n vertu du brrfd« •iMe arrAt tfihan^-ik la MM)n«tfl>da D«man- d«ir, troii «er8»ai8|,«ip|i|jfe.d^||,s^j^.,|p4||,^ d^, I'inrtance ooiini 01 ■v'.'i.'H.-. 1 ra vTSi ,<«. ^i^tef n eonteMition de* d^aivtioiui des tieni i^yibBt k DrandaB ^^ '*?S!W**^P*'^"9^S**i«^^ par an teutei ;B«m«.Mk aipfiaa^l iW^'W* ■■f y>5^i_ tion d*UMlane«, aVoo di^pemi^ el ordonne qu^ iSiix^va la dite cou^ de |^i«m|j^^p«^wMiZi paH^ outw i: l*lttttnictk>i>' du prao^ et l Vwi^Mon ot au jugement f\x, mi^tf dp la)^" teltation mue ebtre lea putioa, de miftmo. qoe at i(a dite ttwxm «i 4rolt eu ucepdoii. il eat drfen ^„^ ._^.. _ .„ ^.„ ^„„. ,„ ,^^ ,„ ^ ^ Et la coMr auV moiSon SJdl^. fcroail ct fiSuieroft, a^teTeT'A[532tri««ri diatnujtion doa iVaia aur oet mmI."' 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