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T t( T P o fi O b( xy si oi fii si OI T\ sh Tl w M di er ba ri{ re< 10X 14X 18X 22X 26X SOX 1 1 y Wk 16X 20X 24X 28X 32X The copy filmed hare has been reproduced thanks to the generosity of: Library Division Provincial Archives of British Columbia The images appearing here are the best qu;l L^:' IN THE SUPREME OOURT OF THE NORTH-WEST TERRITORIES Apiital from the Supremt Court of tl|e North-Wost Territories, |lortlierr| ^Iberta Judioial District. CHARLES WILLIAM MARTIN, (Defendant.) Appellant. AND JAMES STEWART MOORE, (Plaintiff.) Raspondent. APPEAL BOOK. LOUGH EED. MCCARTHY & BECK, ADVOCATES FOR APPELLANT. T. B. LAFFERTY. ADVOCATE FOR RESPONDENT 1890 : TRIBUNR BOOK AND JOB HRINT, CALOARY. I :l .1 II 1 ■ .<,. <, *i- KS.^wSK'ijJijW^ l-'j ■'' ,',1 '.-■•.■ ^ iV-J- J '>A; ■"WfS*-!;'/ i?it).'^'4^' IN THE SUPREME COURT OF. ..THE NORTH-WEST TERRITORIES -.i.-.m Appeal from the Supreme Court of tl\e North-West Territories, Jlortheri) /^Iberta Judicial District. CHARLES WILLIAM MARTIN, (Defendant.) Appellant AND JAMES STEWART MOORE, (Plaintiff.) Respondent. APPEAL BOOK. LOUGHEED, MCCARTHY & BECK, ADVOCATES FOR AIM'ELLANT. T B. LAFFERTY. ADVOCATK FOR RESPONDKNT 1890 : TRIIIUNR nUOK AND (OH PRINT, CALGARY X3GMI 199437 INDEX. page Notice of Motion. 3 Writ of Summons 5 Statement of Claim. 6 Affidavit of T. B. Laffer ty. 7 Order for Service out of the Jurisdiction. 8 Affidavit of Defendant (i) 9 Exhibit " A." — 12 a II g " 15 u II Q" 19 ■ II " D " .... 21 " " D." Continued .... 22 " E." 23 II II p " 25 " G." 26 « II j^ " 26 II 11 J " . ... 27 11 11 J " 27 Affidavit of P. McCarthy. 28 " J. J. Barter 29 " J ' ougheed. 30 Affidavit of I dant. (2) 3> Examination 0; i.^FENDANT. 33 Affidavit of Plaintiff, (i) — 42 Exhibit "A." thereto. 45 II iig " 11 47 It itr* " 11 48 Enclosures therein referred to — page 48 and 49 Examination of Plaintiff. 50 Exhibit " D." thereto. 56 <( ^^X^ " *i 57 Affidavit of Plaintiff. (2) 59 Judgment 60 Order Dismissing Motion, ... 61 Notice of Appeal. .... 62 II >;^i^' IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES NORTH- ERN ALBERTA JUDICIAI DISTRICT. BETWEEN: James Stewart Mdork, Plaintiff. AM) Charles William Martin, Defendant. TAKE NOTICE that motion will be made before the Honorable Charles B. Rouleau, a Judge of this Court, at his chambers in the Court House, in the town of Calgary, on the i6tli day of April, instant, at the hour of lo o'clock in the forenoon or so soon thereafter as the 10 motion can be made for an order setting aside the Writ of Summons issued herein and all sub- sequent proceedings thereon on the grounds, (i) Because the said writ although served out olj the jurisdiction was issued without the leave of the Judge of this Court first had and obtained.] (2) Because the writ although served out of the jurisdiction is irregular in form (a) in not stat- ing the proper time within which the same is returnable, (b) not being issued as a concurrent| writ, or otherwise, for service out of the jurisdiction and (c) is otherwise irregular in not con-; forming to the Judicature Ordinance of 1886 and amendments thereto. Or for an order setting aside the order herein dated the 18th day of January 1889, allowj ing service of the said writ to be made out of the jurisdiction and the service made thereunderj on the following grounds, ( 1 ) on the grounds aforesaid, (2) because the affidavit and otherj 20 material on which the said order issued is insufficient in that the same does not set forth fact;] and circumstances sufficiently to enable the Judge to determine whether or not the said orde! should have been made, (3) because the said affidavit is not candid and is misleading, (4) bcj cause the said affidavit and said other material do not bring this case within any of the pro! visions of the law authorizing the Judge to allow service to be made out of the jurisdiction, (5] because this case is not in truth and in fact within any such provisions, (6) and because in vie\j of all the circumstances of the case the Judge in the exercise of his discretion ought not aiiij had he been more fullv informed would not have made the said order. AND TAKE NOTICE that in support of .said application will be read the affidavit the defendant and the several exhibits therein referred to, the affidavits of J. A. Loughee 30 John J, Barter and Peter McCarthv and the exhibits therein referred to, all this day filed, tl S NORTH- B. Rouleau, a y, on the i6tli ereafter as the 1 and all sub- served out of and obtained. i) in not Stat- a concurrent r in not con- ry 1889, allow- dc thereunder lavit and other set forth facts ; the said orde! leading, (4) be ly of the pro urisdiction, (5 lecause in vie^ ought not atli the affidavit I. A. Loughec is dav filed, tl affidavit err. B. Uffcrty o„ which said order i,s„ad a„d the said order and the other pleadings and proceedings herein. Dated at Calgary this 12th da>' of April, 1889. To T. B. LaFKEKTY, Plaintiff's Advocate. LouGHEEu, McCarthy & Beck, Defendant's Advocates. This notice is giver by Messrs. Lougheed, McCarthy & Beck, of the town of Calgary, in the District of Alberta, Advocates for the above named Defendant. pleading^ ECK, Advocates. Calgary, in | ■ ' WRIT OF SUMMONS. CANADA: In the Supreme Court of the Northwest Territories, Northern Alberta Judicial District. DETWEEN: James Stewart Moore, Plaintift'. AND Charle.s William Martin. Defendant. VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, &c.,&rc.,&c. XQ To THE ABOVE NAMED DEFENDANT: You are notified that the plaintiff has entered an action against you, in the above named Court, for the recovery of the claim or demand, a statement of which is filed in Court and an- nexed to this summons. And you are commanded that if you dispute the said claim, cither in whole or part, you do within ten days from the date of the service of this writ on you, exclusive of the day of sucl service, cause to be entered for you, in the office of the clerk of this Court, an appearance to gether with a statement of the grounds on which such dispute is based. And take notice that in default of your so doing, the plaintiff may proceed in his saii action, and Judgment may be given in your absence and without further notice to you. * 20 Issued at Calgary, in the Northwest Territories of Canada, the 26th day of December A. D. 1888. [L. S.] [Sgd.J H. A. L. DUNDAS, Clerk of Cour Uberta Judicial Ireland, Queen, \c above namcil I Court and an jle or part, >-ol the day of sucl \ appearance to :eed in his san to you. y of Uecembci UN DAS, Clerk of Cour: i i! 1 i 1 ;! \ $ SI ATEMEM Ot CLAIM. The Plaintiff resides near the town of Calgary in the Northern Alberta Judicial District. The Defendant resides at Sheep Creek, in the said Judicial District. 1 The I'laintiffs claim is against the Defendant as maker of two promissory notes for ^-2500 each dated June 9th 1888, payable to the Plaintiff three and six months after date, respectively with interest at five per cent, per annum until paid. PARTICULARS. Principal of Notes ;6"5000, or * 24-333-33 Interest at 5% to date ^'^ 1^ Total amount due on notes. . 24.999.99 -' rhc Plaintiff also claims from the Defendant the sum of ^5000, or $24,333.33. being balancc'duc from the Defendant to the Plaintiff for goods sold and delivered by the Plaintiff to the Defendant on or about the 20th day of November, 1886, also $666.66 interest on $24.33333 from the 9th day of June, 1888 as agreed between Plaintiff and Defendant which together amounted to $24,999.99- 3 The Plaintiff also claims from the Defendant the sum of $48,666.66 for goods sold and delivered by the Plaintiff to the Defendant on or about the 20th day of November, 188^ also $1333.33 interest on $48,666.66 from the 9th day of June, 1888 as agreed between Plamtiff and Defendant, which, together amount to the sum of $49.999-99- 20 The Plaintiff also claims interest at 5 per cent, per annum until payment, and his costs of suit. Delivered this 26th day of December, 1888 by Thomas B. Lafferty, of Stephen Avenue, in the town of Calgary, Northwest Territories of Canada, Advocate for the Plaintiff icial District. ory ' notes for ths after date, 53-33 56.66 ?9-99 • 333-33. being lie Plaintiff to on $24,333-33 vhich together for goods sold ivember, 1886, ween Plaintiff „ « and his costs phen Avenue, iff. AFFIDAVIT OF T B. LAFFERi Y. 1. I am Advocate herein for the above named Plaintiff. 2. That a writ of summons was issued herein on the 26th day of December. 1887- 3. That I am informed and believe that the Plaintiff has a good cause of action herein 4. That the above named Defendant is at Quorndon, Loughborough. Leicestcrsh, England, and is a British Subject. c That the defendant, as I am informed and believe, docs not intend to return to tl Northwest Territories until the month o. May next. 6 That the debt for which this action is brought was contracted in the above Judici 10 District, and that unless the Plaintiff is allowed to serve the Defendant out of the junsd.ctii of the above Court and proceed with his said action that he the Plaintiff will be greatly pr judiced in his just rights, SWORN before me at Calgary in the District of Alberta, this i8th day of January, 1889. [Sgd.] E. P. Davis. A Commissioner, &c., in and for the Northwest Territories. [Sgd.] T. B. Lafferty. iber. 1887. )f action herein [h, Leicestershire to return to i\ He above Judici )f the jurisdictic 'ill be greatly pr :rty. "1 ORDER. Upon hearing counsel for the Plaintiff; and upon reading the affidavit of Thomas B^ ] Lafferty, Plaintiff's Advocate, filed the ,8th day of January, 1889, and upon readmg the wnt of - summons and the statement of claim annexed thereto; It is ordered that the Plaintiff be at liberty to serve the writ of summons herein upon j the above named Defendant out of the jurisdiction of the above Court. | And it is further ordered that the time for appearance to the said writ be within 60 days after the service thereof; instead of 10 days as mentioned in said writ, and that the costs of th.s ^ application be costs in the cause. 10 Dated at Chambers the l8th day of January. A. D. 1889. [Sgd.] CHAS. B. ROULEAU, Judge of the Supreme Court of the Northwest Territories, | of Thomas B. ling the writ of A )ns herein upon within 60 days he costs of this . ourt of the west Territories. AFFIDAVIT OF C. W. MARTIN. I Charles William Martin of Quorn Place, Quorndon, in the County of Leicester, Ranch- man, make oath and say:— 1. I am the Defendant in this action: On or about the ist November, 1886, the Plain- tiff and I were carr>ing on business in partnership as Ranchemen, and the Plaintiff asked me li buy out his . hare in the business as he had need for the monej' to pa>- off mort^a^es on hi* estate in Antrim, in the Kingdom of Ireland, of which County he had just been High Sheriff. 2. Accordingly an agreement for dissolution of partnership was drawn up, a copj- which is now produced to me and marked "A. " •o 3. Both parties were sincerely anxious to meet the wishes of the other in a fricndl} manner, the Plaintiff agreeing to assist me this deponent in every way in the formation of tin Quorn Ranche Companj'. Limited, hereinafter referred to as "the said Company." 4. This agreement for disscjlution of partnership (with the avowed intention of avoidin.^ any unknown complications and delays which might arise under international or intercolonmij lawsj was expressly stated to be, and was intended to be, construed as a purel>- English agrcil ment between two English subjects, each ha\ ing their residence and the bulk of their propert in Great Britain or Ireland. 5. It was further expressly stipulated and agreed that the formal completion of the sa; | agreement for dissolution of partnership should be effected in England between me this d J 20 ponent and a dul)' aulhorizcJ ;igciit of the plair.tiff who h.id executed a power of Att(jrne\- | favor of his agent, Stewart, inu'cr which it was intended the plaintiff should carry out tl | dissolution. o. In further compliance with this arrangement the business was forthwith put into t' hands of my Solicitors, Messrs. Berridge & Miles, of Leicester, and into the hands of Mes- Crookshank & Leech of Coleraine in the Kingdom of Ireland, the Plaintiffs Solicitors, but owr to legal difficulties raised by the Plaintiff's .idviscrs and the insufficiency of the Power of } torney executed by him as aforesaid, the completion of the business was postponed at l written request of the Plaintiff until a personal interview between me this deponent and i Plaintiff could take |)lace at Calgary. JO 7- Accordingly an interview was effected between the Plaintiff and me this deponent or about the month of July, 1887, and the Plaintiff then and there admitted ihat I had suffer considerable loss and inconvenience in the prolitable formation of the said Company owini; the unconfirmed condition of my agreement for dissolution of partnership with the Plaintiff Leicester, Ranch-'l r, 1886, the Plain iiintiff asked me t( mort^'a^cs on his en High Sheriff. iw n up. a copy o: (ther in a friend!)' J formation of tin lanv." :ention of avoid in lid or intercolonial ely English agrci^ k of their propert iplction of the sai i ctwcen me this i lowcr of Attorney ^ should carry out t! thwith put into tl the hands of Mes-: Solicitors, but own )f the Power of ^ was postponed at t s deponent and t nie this tleponenl ■ il that I had suffer Company owing with the Plaintiff. 8. Furthermore the value of (jur late jjartuership assets liail in the meaiuiiiie greatl) depreciated and the Plaintiff admitted that such loss ought to fall equally upon the shoulders of himself and me this deponent. 9. Acctirdin^dy a modification (jf our original agreement for dissolution was then agreed upon and c'ntered into and such modification is mainly set forth in the documents and letters signed b\- me this ileponent and the IMaintiff respectively, copies whereof are now produced to me and marked "H." "C." "D." "K." "F." "(i." and "H." res]3ectively. 10. L'ndcr these fresli arrangemeiils time was to be allowed to me this deponent for the fulfilment of my [larl of the contract so long as the Plaintiff was satisfied that the value of the 10 propert_\- was increased and not diminished by the formation of the said Company and this understanding was in existence between the Plaintiff and me this deponent up to the month of December iS.S.S or thereabouts. 1 I. At tlie time I this deponent tendered to the Plaintiff Mortgage Debentures (in the said Company) for the amount of his claim against me which were further secured by Chattel Mortgage duly registered at Calgary by the Plaintiff whc is duly appointed as agent by the said Companj- for that purpose, and acted him.self und .icli authority in registration of the said Chattel Mortgage and such registration by the Plain, it' has been since confirmed by the said Company in general meeting. , 12. In or about the montii of December last, the Plaintiff cabled to the Solicitors of the 20 said Company asking them at what date registration of assignment of shares in his favour had been maile and the said Solicitors cabled repl\- that no assignment had been registered but that shares had been deposited to the extent of ^"5000. und that the amounts could be increased if ilcsired — copies of the said cables resjjectixely are now shewn to me and marked "I." and "J." respectivel\\ I j. On the 15th February 18S9 the v\rit in this action was serveil on me this deponent at Quorntlon, Leicestershire, Kngland. 14. I am willing to discharge m\- obligations to the Plaintiff through his dul)- appointed i agent in F^ngland whenever they have been established and I am called upon to do so by an I English tribunal, but I protest against the Jurisdiction of the Court in Alberta, a District in ] 30 which I do not reside as stateil in the proceedings herein and in which I own no property apart j from shares in a Joint Stock Compan\'. I 15. Under the circumstances above deposed I am advised and believe that no contract^ was made between me and the Plaintiff nor has any cause of action arisen within the juris- (.liction of this Honorable Court; there has been no sale and delivery of goods as alleged by the Plaintiff in the second and third paragraghs of his statement of claim and the sum sued for in this action and the agreed interest in the said statement of claim referred to are due (if at all" .f under an agreement for dissolution of partnership and are payable solely under that agreement, aj I ntime grcatl) e shoulders of 5 then agreed ts and letters produced to t lonent for the : value of the ipany and this the month of ntures (in the red by Chattel agent by the istration of the firmed bv the f « solicitors of the his favour had stered but that be increased if ed "1." and "J." this deponent dul\- appointed o do so by an a, a District in ) property apart 4 hat no contract within the juris- | .s alleged by the | um sued for in | ire due (if at all 'f that agreement, | 1 1 the terms of which can only be enforced by a suit for specific performance issuing out of soim Court of competent jurisdiction in the county in which the agreement was virtually made. SWORN at Leicester in the County of Leicester, in England, this 23rd day of March 1 889., before me, [Sgd.] Edmund Button, Notary Public, Leicester. [Sgd.] Ch.xkles Wm. Martin. jing out of sonic- ally niade. \RTIN. 13 I-.XHIBIT 'A." MKMORANDUM OF AGREEMENT made November 20th, 1886. BETWEEN: e'HARl.KS Wll.l.IAM MaKIIN AND JAMl'-S SrHWAKT MoOKK. VVHEREHV it is ai^reeci that tlie saiil James Stewart Moore being unable to come to terms with his partner, tlic said Charles William Martin, offers either to sell to the said Charles Wm. Martin all share and interest in the Sheep Creek Ranche Co., or to purchase the said Charles Wm. Martin's share at his option. AND it is hereby agreed and declared between them that whichsoever course the .said 'O Charles Wm. Martin ma)- elect to take shall be hereon recorded in writing and shall be bind- ing on both parties. And shall take effect as on November l.st 1886, being the end of the said Company's financial year. Ami the party going out of the concern shall have no further claims or liabilities in connection therewith. AND thai the valuation hereto amie.\ed which has been made by agreement between the said two parties shall be taken to correctly .set forth their respective shares. And that thr values therein assigned to each shall be signed by both parties. And shall not hereafter be subject either to correction or ameiulment. AND 11 IS I'TIRTHER ACREED that the manner of payment shall be as follows;- ihat ^o days shall be allowed for the part\- having payment t November 18S; J Vendor shall bi- as hereinbefore :: of the Sheep 'idends declared tved on all obli- u-usn^mm 13 ALSO that in the event of any part of the payments due being in arrear the other paiu is entitled to claim as security his personal bond made in Great Britain either by himself or hi Attorney, which bond would then include in its scope as security all property which the saii party owns in Great Britain. And the registration of the lien on the Ranche be demanded 1 desired, as provided as collateral security and as relating to property in Canada. AND IT IS FURTHER AGREED between the parties hereto that the>- will faitl fully perform their respective parts of this agreement and will duly make all the payments an execute all necessar\' documents, releases, receipts, bonds and indentures and carry out th . spirit of this agreement which the)' have this day as partners drawn up for their mutual pi- 10 tection. SIGNED this 20th day of November, 1887, in the presence of CHARLES L. Douf.LAS, Cow- Boy, Sheep Creek Ranche, Alberta. Chakles Wm. Martin. James Stewart Moore [n pursuance of the comlitions laid down in the annexed agreement the two pail have dicidcd and agreed that the vendor is James Stewart Moore and the purchaser is Char •> William Martin and that the purchase money is $44,500.00, forty-four thou.sand five hundi dollars, and after careful consideration of the terms of this agreement tlesire to record that t partnership was amicably dissolved b}- mutual consent, solcl_\- because Charles Wm. Mar; 20 refused to consent to a scheme proposed by James S. Moore for reducing the extent and scd . of the business, which scheme Charles W. Martin considered fatal to the interests of the cona and opposed to recognised cannons of sound ranching; that thi-^ course was taken with nii regret by both parties, and the hope is entertained that the jiarty bought out may see his \\ to re-enter the business as owner of a smaller share, that Mr. Robert Crookshank, New K Colcraine, and Edward Miles, Solicitor, I'riar Lane, Leicester, be instructed to draw ii[ proper deed embodying the spirit of this agreement, bearing in mind the relation of the par*' thereto, and how they do not stand related to each other nor ilo the>- desire to be treated m the stringency of ordinary debtor and creilitor, satisfied as they are, of the bona fides ■ familiar as they are with the jjosition and responsibilities of each other. 30 MEMORANDUM IN ELUCIDATION of page 2. This agreement t(j be executed by the parties or their lawful attorneys in England registered as an English Deed between two British subjects as soon as possible after read their hands. On due execution of agreement the purchaser is to give the vender his note of hand one-half of the purchase money at j am! 6 months. AND also as collateral security to give a lien or mortgage on one-half of the prop of the Sheep Creek Ranche Co. wnich will then be surrendered to him absolutely by bearing same date. ;ar the other p;in\ by himself or lii rty which the sai( ; be demanded la. It they will faith ;hc payments an and carry out tl- r their mutual pn Martin. IT Mooiu:. :nt the two partij lurchaser is Char; jusaiul five htindi to record that t rharles Wm. Mar: e extent and set crests of the com\ 'as taken with nn It ma\' sec his w ^kshank, New K Licted to draw u| lation of the y)ar: to be treated w )f the bona fides J ■ L-ys in Eiitjlund ossible after read his note of haiu -half of the pro]! im absolutely by > H The portion iK)t cxccediiij^one-liair of the wliulo purcliasc iiToiie) to can) interest at 5% per anuum and to be paid off by instalments of not less than ;£'iooo at a time at the con- venience of the purchaser. The usual provisions to be inserted for 12 months notice to call in the mone\-, if ,iot all repaid during the first >ear, with the usual remedies for summary treat- ment in the event of the interest beinjj in arrear, or the purchaser depreciating the security by selling off bn-cding stock, etc. And this after careful consideration is considered by the two parties to be the true meaning and intent of page J. C. VV. Martin having announced to J. S. Moore that he is depending on the sale of ^.'3CXX) Mid. Ry. I'refcrence Stock to meet his first bill and believing that the books of that 10 compaii)- are closed about that date for declaring the half yearly dividend, J. S. Moore desires his agent to arrange that ('. W. Martin shall not be forceil to sell those particular shares prema- turely to meet this bill but shall be allowed, say a week, after receiving the dividend due to sell those shares and remit the cash to J. S. Moore's agent in Ireland, as such action would be considered by both parties as against the spirit of this agreement. AND IT IS FURTHKR AtiRKED that if J. S. Moore does not elect to carry out a propos;d now made to him for re-in\esting some part of the purchase money in the business, and if such money should remain on security of the Ranche, J. S. Moore will not arbitrously foreclose but will meet Charles Martin's convenience for re-payment, but that should Charles Martin give him any trouble about the punctuality of the payments of interest or should he sell 20 off any iiuantit\' of breeding cattle or do any action calculated seriously to depreciate the value of the security he shall then be entitled to do so. IT IS FURTHER understootl that 50. or 60. thousand dollars worth of stock is to be considered adeiiuate for the collateral security required. AND that C. W. Martin is not to be considered to have depreciated the security in ami wa>- if he should mortgage to the full value in addition to this, the whole of the freehold and leasehold land, houses and buildings. THAT as this dissolution by arrangement was made in the interests of both parties it agreed that all the costs shall be equally divided. ALSO in the event of the second bill becoming due in June or July 1887 and C. v| 30 Martin having a balance to his credit at the Imperial Bank at Calgary, such sum to be paid 1 cheque in dollars tlirect to Moore at Calgary. I'he property may be described as all tho.se lands in Alberta leased to C. W. Martin Moore and Martin, formerly Wilson and Stimson, and all stock branded with the -egistcrj brand of the Sheep Creek Ranche Co. and all buildings, dead stock, horses. &c. I'he above arrangements agreed to. C. W. Martin. J AS. St. Moore. ^■^ t(i cMty interest at 3 at a time at the con- ,nths notice to call in IS for summary treat- ating the security b>- considered by the two cpending on the sale of hat the books of that 1,J. S. Moore desires his irticular shares prema- ;he dividend due to sell as such action would be lot elect to carry out ;i money in the business, | ;oore will not arbitrously | but that should Charles | interest or should he sel! :j r to depreciate the valut ,| rs worth of stock is to be iated the security m an; ^ lole of the freehold aiic terests of both parties it or July 18S7 '^"d ^ ^^ i ' such sum to be paid I I r>' I leased to C. W. Martin ^ branded with the -egistcn -^ horses, &c. IE. itniw MM ill! 15 EXHIBIT "B." THIS INDENTURE made the 20th day of September, 1887. BETWEEN: Jamks Stewart Moore, of Bally-divitty, in the County of Antrim, Esquire, ( one part and Charles William Martin, of Quorn Place, Loughborough, in the County < Leicester, Esquire, of the other part: WHEREAS the said Charles Wil'iam Martin and James Stewart Moore have for som years been carrying on in partnership the business or occupation of cattle ranching on tli Sheep Creek Ranche at Alberta, in Canada, under the name and style of " The Sheep Crcc 10 Ranche Company" but the said partnership is not regulated by any articles or agreement 1 writing. AND WHEREAS a statement and account of the partnership assets or estate incliu; ing all the property estate or interest of the said partners in the said ranche ;uid in all horsi and in all live or de' way now or mav' at any time effect the >.i 30 James Stewart Moore or his estate or effects and paying to the said James Stewart Moore t said sum of $44,500. and interest thereon at 5% per annum from the first day of January iS.^ AND WHEREAS il was agreed that the said Charles William Martin should pay t: said sum of $44,500. to the said James Stewart Moore in the following manner; — the sum $1 1,125. being one-fourth of the .said sum of $44,500. to be secured by a three months bill note in favor of the said James Stewart Moore to run from the date of this Indenture and a furth I ntrim, Esquire, in the Couiitv )ic have for som >e ranching on tli rhe Sheep Crcc ;s or agreement i or estate incliu: ;uid in all horst : in trade, moncv eferred to as " tl partnership \vc: ies hereto and tl .1 debts and liabii \alued at the su: [oore should reti: accept the sum or estate and th ' i or occupation : in the partnersli to the said Charl :1 liabilities of ti iuch of the same me effect the sa Stewart Moore t! ' of January 1^!^ tin should pay t: nner : — the sum ;hree months bill enture and a furth i6 sum of $1 1,125. '" ^^ secured by ;i six jnoiiths bill or note in favor of the saitl Jamos Stewart Moore, also to run from the date of this Indenture together with interest on both the said sums or on so much thereof as should for the time being remain owing, at the rate of 5% per annum, to be computed from the ist day of January 1887 and that the said Charles William Martin should pay to the said James Stewart Moore a further sum of $22,250. (being the remainder of the .sum of $44,500. after such pajments as aforesaid) by instalments, none of which except the last thereof should be less than X'looo, such instalments to be paid by the said Charles William Martin at such times as might suit his convenience together with interest thereon or on su much thereof as should for the time being remain owing and unpaid after the rate of 5% per ■'~> annum to be computed from the ist day of January 1887 and that if the whole of the said sum of $44,500. and interest thereon should not be paid within 12 months from the date jf these presents the said James Stewart Moore should be at liberty to give to the said Charles William Martin 12 months notice in writing calling in the said sum or sums as might be then due. AND WHEREAS it has also been agreed that the necessary steps .shall be forthwith taken (1) for vesting the interest of the said James Stewart Moore in the partnership assets or estate in the said Charles William Martin and (2) for effecting the security affected or pur- ported so to be by an indenture already engrossed antl bearing even date with and intended to be executed immediately after these presents and made between the said Charles William Martin of the one patt and the said James Stewart Moore of the other part, whereby the said -O sum of $44,500. and interest are secured in manner therein mentioned. AND WHliREAS in pursuance and part performance of the said agreement the said Charles William Martin has on or before the date of these presents given to the said James Stewart Moore 2 bills for $1 1,125. t-'-'ich, payable at three and six months respectively from the date of this Indenture and bearing interest as aforesaid. NOW THIS INDENTURE WITNESSETH that in pursuance and part performance of the said agreement in this behalf it is hereby agreed and tleclared that the said partnershij) shall be determined and stand dissolved as from the 1st day of Nov. 1886, and that the same shall henceforth be carried on bv the said Charles William Martin as aforesaid. .\NDTHIS INDENTURE ALSO WITNESSETH that in pursuance and for tlu JO performance of the said agreement and in consideration of the premises he the .said Jarno .Stewart Moore conveys, grants, assigns, releases and transfers unto the said Charles William Martin, his heirs, executors, administrators and assigns all the part share or interest of the said James Stewart Moore of and in all those lands in the province of Alberta, in the Dominion oi Canada, leased to the said Charles William Martin or the sard Charles William Martin and James Stewart Moore or formerly to Wilson and Stimson, and all other lands formcrlj' part ol the ranche belonging to the partnership and of and in all horses and cattle and of and in al! live or dead stock of all descriptions thereon and the goodwill thereof and all the stock in trade moneys, contracts, profits, effects, propert)-, matters and things of the said partnership and al the estate, right, title, interest, claim and demand whatsoever of the said James Stewart Moori 40 in, to and upon the said premises and every part thereof. ■1 James Slcw.ut 1 the said sums 5^ per annum, William Martin e remainder of hich except the Charles William ;hereon or on so e rate of 5% per of the said sum ;hc date jf these "harles William then due. ill be forthwith lership assets or affected or pur- md intended to Charles William hereby the said reement the said ■ o the said James :tively from tliej part performance said partnership nd that the same ince and for the le the said Jame> Charles William erest of the said the Dominion of iam Martin and formerly part ol and of and in all he stock in trade, rtnership and al! 5 Stewart Moore! TO H.W'l': AM) ro HOLD, KKCKIXT': AM; lAKl". the saiil premises luiv conveyed ur assij^ned unto the said Cliarles William Martin, his b.eirs, executors, atiministrati or assigns accordin^^ to tiie nature and tenure thereof for all the estate and interest of the s, James Stewart Mooie therein ff)r his absolute use and benefit and for the consiileration ainr saiil and for the more effectually enabling; tiie said Charles William Martin, iiis execuu administrators ami assij^ns to receive ami recover the said several credits and effects of the '• partnership, he, the said James Stewart Moore, herebv irrevocably api)oinls the said C'h,i> William Martin, his executors or administrators, his lawful attornev and attorneys in the iiai of the said James Stewart Moore, either jointly with the said C"harles William Martin or otl.i lo \vise but for the exclusive benefit and at the costs and risks of tlie said Charles William Mart his executors or administrators, to ilemaiul, sue for, ci.ll in ar.d reteive In m all j cim whom it may concern all and sinijular, the debts, monevs and effects of the said partners! and to j;ive effectual receipts and discharj;es for the same rcs]jective!y and to use all si, remedies or prcjceedings for the recovery and ^ettin^ in the said credits and effects resia tivcly as may be ileemed expedient and generally to tlo whatsoever shall be rcqusile for t;i\; to the said Charles William Martin, his executors or ailministr.aors, the full beneilt of the u veyancc or assignment hereby made. And the saitl James Stewart Moore doth hereby himself, his heirs, executors and administrators, covenant with the said Charles William Mai; his heirs, executcjrs, atlminislrators and assigns respectivelv that he the said James Stew 20 Moore lias not at any time heretofore contracted an_v debt or obligation whith can or i: charge or effect the said Charles William Martin, his executors or administrators or : jKntnership assets or estate or any part thereof nor received, nor discharged any of the cro of the said partnership, except as ajipears by the booUs of the sjime. nor done anv act when the share and premises hereby conveyed or assigncti or any part thereof ma_\- be charga: encumbered in anv manner howsoever. AND that he the said James Stewart Moore, his c.xccuturs or .ulministraturs ami persons having (jr lawfully or eciuitable claiming anv estate or interest in the said preni through him, them <;r anv of them will at all times hereafter on the reijuest and at the cost- the said Charles William Martin, h.is executors, administrators or assigns, make, do and exec 30 ever)- such further assurance, act or thing whatsoever, for the more elfectually vesting; premises herebv- conveved ()r assigned and everv part thereof ami enabling him and them receive the same as shall br. reasonablv requiied and that he the said James Stewart M^' his executors or administrators w ill not at any time hereafter receive, compound or discha any of the goods, credits or effects, the share whereof is intended to be hereby conveyeil assigned and will not relea.sc, disavow (jr becomo non-suit in any action or proceeding vvh mav- be brought b)- the said Charles Willian' M,i.ilin, his executors or administrators by \ 1; of the said power or ilo au)- other act (jr thing in derogation of the assigmnent hcreb)- matk the powers or authorities herebv given. .* •« AND in furthjr pursuance and performance of the hereinbeftjre recited agreement 40 in consideration of the premises he the said Charles William Martin doth ||>ei'<-"by for him- his heirs, executors or administrators covenant with the said James Stewart Moore, his lu executors, administratcjrs or assigns respectivelv- that he the said Charles WillianJ Martin, heirs, executoi-s or ailministrators will pay and ilischargc or procure the payment and discli., ol all the debts and liabilities of the said partnership in.;lu(ling the rents and covenants t' n id premises lun tors, ;ulministr;i; ntercst of the s. consideration ;ilnr artin, his execuli I effects of tlie n, l> the said Ch.ii )rncys in the n;u ni Martin or oil les William Mint e fr( m idl j eix he said partneisl and to use all si, and effects resin rcqusite for i^iv; II benellt of the u lore doth hereby -les William Miu saitl James Stew - which can or ii ministr.itors oi 1 any of the cm. ;ie any act when if ma\- be char^ci ilministrators ami II the said preiii and at the cost- lakc, do antl exct fectually \ estiuL; 4 him and them mes Stewart M' ipound or disch.. hercb\- conve>cil or proceeding wl inistrators by \ i: lent hcrebj- maik cited agreement th l^ereby for him trt Moore, his Ik William Martin, yment and discli. s and covenants i' paid, observed and pcrroniicd rcsi)cctIvoly ri respect ol surh of tlie said premises as may be nf leasehold leiuire ami will at ;dl times hereafter effectually keep indemnified the said James Stewart Moore, his heirs, execiitiors or admini^trators and his and their estate and effects a;4ainst all .u-tions, proceed ins^^s, costs and lianiaLa-s, exiKMises, claims and demands in respect thereof and also aj^^ainst all costs, dama.i;es and expenses by reason of aii}- action or proceediiis^ which may be broui^ht or instituted b\- the said Charles William Martir, his executors or administrators in the name or names of the saiil James Stewart Moore, his executors or adminis- lratt)rs by \ irture of the power or authorit)' hereinbefore contained or of an)- act, matter nr ihiu'' in relalioii thereto. lO A\U THIS IXDl'lMLKl'; l..\S 11. \' WnNI'.SSi'yin that in further pursuance am! performance of the hereinbefore recited aL;rcement and in consideration of the premises tlu' said James Stewart Moore hcrebj- releases and discharij^es the said Charles William Martin, lii- heirs, executors, administrators and assij^ns and the said Charles William Martin hereby releases and tlischar^es the saitl James Stewart Moore and his heirs, executors, administrator- ;iih1 assigns (but subject and without prejuilict to the covenants contained in these presents aiu! to the pro\ isions of the hereinbefore mentioned indenture bearinjj; e\en date lierewith) from al! a^'tions, i)r()cecdini;s, claims and demands which they the saiil releasin^r parties or either oi them or his executors or administrators now has or hereafter have aj^qun ;t the other of then: or his executors or administrators b\' reason of the abo\e mentioned partnership or any otlur 20 matter relatiiit; thereto, IN Wl TNI'.SS This draft for tlissohition of partnership reviseil aiul corrected b\' James Stewart Mooic '\ and v."harles William Martin, and accep-'ed subject to completion of annexed memorandum v agreement f(jr security for unpaitl balance. September joth, 1887, ('i!ARi,i:.s William Maktin. Ja.s. Stkwakt Moore. s iis in<'\y bo m \ the said James state and effects iiands in respect r or procecdinj^ his executors or utors or admin is- ' act, matter 'ing (jn in partnership t! business or occupation of cattle ranching on the Sheep Creek Ranche, at Alberta, in Canac 10 under the name or style of " The Sheep Creek Ranche Compan)-," but the said partnership w not regulated by any articles of agreement in writing. AND WHEREAS a statement and account of the partnership assets '>r cst?t.- ■i<^'.\- all the property estate or interest of the said partners in the said ranche and in all hi.,.sc.-* .t in all live or dead stock of all descriptions thereon and all the slock in trade, moneys, credits a; effects of the said partnership, all of which are hereinafter referred to as " the partnership asst or estate" and also all the debts and liabilities of the said partnership were on the 20th da\ November, one thousand eight hundred and eighty-six, stated and agreed upon between i parties hereto and the respective shares of the said partners after taking into consideration t said debts and liabilities, were ascertained, and the share of the said James Stewart Moore w 20 valued at the sum of fortj-four thou.sand five hundred dollars. AND WHEREAS it has been agreed that thj said James Stewart Moore should ret from the said partnership as and from the First day of November, one thousand eight hundr and eighty-six, wpon the terms and subject to ♦^'le - mditions, agreements and stipulations a ^ tained and set forth in a certain indenture of dis.solution of ,)artnership bearing date the 2( day of September, 1887, and made between the same parties as the said parties hereto. J| AND WHEREAS in pursuance and part performance of the said agreement in : -^ .said indenture of the 20th da>' of September, 1887, set forth ami contained the said Char W William Martin has on or before the date of these presents given to the said James Stcv -^ Moo cwo bills for $1 1,125. each, payable at three and six months respectively from the d '^ JO "f the said indenture and bearing interest as therein' providetl. J[ AND ir 'urther pursuance and performance jf the .said agreement in the said indent set forth and contained the said James Stewart Moore has conveyed and assigned all his sh and interest in the partnership assets and estate to the said Charles William Martin. eight hundred ai le County of Ia in the County in partnership ti ilberta, in Canat id partnership w or cst?t:: ■>«"'» I in all hu.:so^' u moneys, credits a: ; partnership asst an the 20th dav upon between t o consideration t Stewart Moore w Vlonre should ret «ind eight hundr id stipulations ct aring date the 2C | ■ties hereto. d agreement in ncd the said Chafl| said James Stew ively from the d 11 the said indent isigned all his sh n Martin, AND WHKREAS the said Charles VVilHam Martin is possessed of one hundred and ninet)- shares of one hundred pounds each in a compan>- called The Quorn Ranche Company, Limited, which is a company duly incorporated under the Companies Acts, 1862 to 1886, and he has agreed with the said James Stewart Moore to charge fifty such shares as hereinafter set forth, as securit)- with the payment of the sum of five thousand pounds, ;^5000., to the said James Stewart Moore as in the said indenture of the 20th September, 1887, is provided and contained. NOW THIS INDKNTL'RK WITNKSSK'IH that in pursuance of the said agreement the said Charles William Martin hereby charges ail those, his fifty shares of one hundred 10 pounds each, of and in the undertaking called The Quorn Ranche Company, Limited, num- bered in the books of tho said Company from i to 50 inclusive and now registered in the books of the said Company in the name of the said Charles William Martin with the repayment tr, the said James Stewart Moore, his executors, administrators or assigns, of the sum of ^5000. and interest at the times ami in manner specified and contained in the said indenture of the 20th da>- of September, 1887. AND THIS INDEN'l J .LSO WITNKSSETH that in further pursuance and performance of tlic said agreemc , nd in consideration of the premises, the said Charles William Martin doth hereby, for himself, his heirs, executors and administrators, covenant with the said James Stewart Moore, that he, the said Charles William Martin, has not at any time 20 heretofore contracted any debts or obligation which can or may charge or effect the said James Stewart Moore, his executors or ailministrators 01 the said shares or any part thereof, or done any act whereb)' the shares hereby charged or any part therccjf may be charged or encumbered in anj' manner howsoever, and that he. the said Charles William Martin, his executors and administrators ami all persons having or lawfully or equitably claiming any estate or interest in the said premises, will, at all times hereafter, at the reijuest of the said James Stewart Moore, his heirs, executors, administrators and assigns, and at the costs of the said Charles William Martin, his heirs, executors, administrators and assigns, make, do and execute every such further assurance, act or thing whatsoever, for the more efec tually carrying out the intention of these presents and effecting the security hereby intendetl to be effected, as shall be reasonabl) 30 required, and that he, the said Charles William Martin, will not do or suffer anything whereby the said shares hereby charged, or any of them my be encumbered or alienated or otherwise prejudicially affected, IN WITNESS: AS WITNESS the hands of the said parties, the ilays and year first above written. WITNESS : 1". Ei.oKKNCK Martin, Quorn I'lace, Loughborough. Charles William Martin. WITNESS T. H. Lafkeria, of Calgary, N. W, T., Canada. jAMEb Stewart Moore. c hundred ainl iche Company, 2 to 1886, and hereinafter set X)0., to the said is provided and said a C. W. M. J, S. M. September 20, '87, Quorn Place, Loughborough. Memo of agreement securing Moore for unpaid balance. Martin concedes that Moore is entitled to a lein on ;^ 10,000 worth of live stock, as p; vided in agreement of Nov. 20, 1886. 10 Moore concedes that he would insist on no security that would hamper Martin in dealings with his company, provided that he produces one, which would be equally valuable. If Martin cannot produce a security which is equally valuable in the estimation of J Moore and his legal adviser (calling in the arbitration of some eminent counsel, if necessary. The security laid down by original agreement for dissolution of partnership, da November 20, 1687, stands in the event of any dispute arising between James Stewart Mi and Charles William Martin as to what security the said James Stewart Moore is entitled under the original agreement, dated November 20, 1886. The same shall be referred to ar tration in the manner prescribed by the Common Law Procedure Act. ao C. W. Martin. J AS. Stewart Moore. :** ship, Sept. 20, 18S N. M. 3. M. 1 )f live stock, as p: mper Martin in equally valuable ; estimation of J isel, if necessary. r partnership, da mes Stewart Mi Moore is entitled be referred to a: u shifted from the shoulders of one person to those of seven persons, whom I know to be at ' equally solvent.' " I have th ^^fore to ask you to put yourself at once into communication with the Solic of the Company, and after having taken counsel's opinion (if necessary), to inform mc manner that I can confidently act upon without further delay or correspondence. 1. Is the Company properly formed and registered with due regard to all the requircir of the law ? :;. Is counsel of opinion that the memorandum of association referred to gives ' . 30 first charge on the porperty on the Company and a remedy against the individuals composi: in case of default ? 3. In the event of mj' ha\ing, hereafter, to sue for the recovery of either princip interest, what would be the proceedure ? Whether, '■''» ily 30th, 1887. )letion of the com- until I could disc i have taken tiiii. jrmed to carry (ii. templatcd by liii: igly in certain cla rests. :ept 50 fully pan nstead of the sea 3y. On my objcc: J le called my atteir 1 and assures ine;^ t my case, and tlif. ty proposed to be personal bond o\ ;| il first charge on ,'ith personal liabi! | 1 know to be at tion with the Solic y), to inform mc ndence. to all the requireit referred to gives r| dividuals composi! i of either princip «4 (A) To obtain a judgment decree in the Local Court of Calgary and have the sloe seized and sold by the Sheriff, (B) Or to sue the seven persons individually constituting the Company, in England. Please understand that Mr. Martin is ready with one half of the purchase money. Th; I am quite satisfied with value and bona fide nature of the business and the solvency of tl company who are all known to me personally, and in which Company I may not improbab: hereafter, acquire an interest in myself Yours very truly, [Sgd] James S. Moore. lo ("• W. Martin. J. S. MOOKE. d have the stoc 1 in England. e money. Th;. solvency of tl; y not improbab; 3. Moore. ! , I > 2i EXHIBIT "F September 19, 1887 J. S. MookL's proposals 1. J. S. Moore to sign deed of dissolution of partnership and assit;nment of sliaa Sheep Creek Cattle Ranch Company. 2. C. W. Martin to pay cash or give bills for one half the amount of the purcb.se m. mentioned in aforesaid deetl. 3. C. W. Martin to sign mortgage of a share in the Sheep Creek Cattle Ranch Camp;i securing to J. S. Moore the remaining half of the purchase moncv, 10 (A) Reference to J. J. Barter, as being a shareholder in said Company, being first sir, out from the copy of mortgage, supplied by Messrs. Crookshank & Lc'ch. (B) And the following agreement to be appended to vhc said mortgage, vi/. ; That as Mr. C. W. Martin has formeil or is about to form a ('ompan\-, to be called Quorn Ranch Company, with the object of carrv-ing on the business of horse and cattle i;i' ing, at Sheep Creek, Alberta, in Northwest of Canada, if it be founil that the circumstance Martin's having given a mores,, gc to J. S. Moore, of a share in the Sheep Creek Cattle K. Company, does in any way impede C. W. Martin in the formation of or in his dealings witli said Quorn Ranch Compan)', J. S. Moore hereby agrees to surrender to C. W. Martin, at an\; within 12 months of the signature of this agreement, th.e above mortgage ot a .'hare in the .S' 20 Creek Cattle Ranch Compan>', contlitionall)' that J. S. Moore, on surrender of the saiil 11 gage to C. W. Martin, receives in lieu of it a first charge or mortgage on the property dI Quorn Ranch Compan\-, whicli .-.hall afforu to J. S. Moore a security eciually good to the oiu is called on to surrentlcr. If M^» nat have taken p ; I. S. Moore and ( hat C. \V. Marlin nd the remainder tuted securi'.y a\ suits the convcii'i < as is privately w - W.M. Martin ill 26 EXHIBIT "G. Sheep Creek Ranch, Sept. 20th, 1887. Dkar Moork, With reference to the first four lines of pa^^e 4 of draft for agreement of dissolution < partnership, now about to be si' convenience, so long as the interest is duly paid. '° Yours truly, • Charles Wm. Martin, KXH'HI T "H. Sheep Creek Ranch, Sept. 20th, 1887. Dkar Martin, I have much pleasure in conceding to the rctjue-st in )'our letter of Sept. 20th, 1887, reference to the re-pa)"nent of balance due to me. Vours truly, J AS. Stkvvart Moorf,. 1'. S. — I ha\er further to note that if you will gi\e bills as provided, the agreement I 30 di.ssoluion of partnership, notwithstanding that two bills of ;t'2,ooo each is accepted between us a fair equivalent J AS, Stkwart Moork. 20th, 1887. it of dissolution conflicts with tl. :en advantage of; at in considcratii pay the balance M. Martin, :. 20th, 1887. Sept. 20th, 1887, M- when I api)lied to him ai;ain for such inspection he informed me the plaintiff li taken the one he, the saiil Advocate, hati away from hin) ami he could not show the same tor 3. That I have searched in the office of the ("lerk of this Court to ascertain if leave w ^O given or order made herein by the Honorable Jutl,i(e for the issue of the writ in this action service out of the jurisdiction, and could not find that any such leave was given or order ma and 1 verily believe none such was given or made. 4. \o ajjpearance has been entered in this action. SWORN before me at Calgary, in the District of Alberta, this 12th day of April, A. U. 1889, [Sgd.] J. C. F. HovvN. A Notat)' Public in and for the Northwest Territories [Sgd.] P. McCarthv. "«1 ta, Advocate, ma- iral Rank of Canad the firm of LalTir notes made b\ !: le as they were i informed me that: lade payable at a I have conic into t ;;lieve the prom issr ide payable at a is action for an he said he had or :xt day and on i me the plaintilT 1: show the same to ;: icertain if leave » it in this action dvcn or order \m RTHV. iiTilirlMii imii iiiiiiiiiiiriiii I 'n ihmji ! !■ iQ AFFIDAVIT OF J. J. BARTER. I, John Joseph Barter, of Sheep Creek, in the District of Alberta, make oath and sa 1. I am well acquainted with the above named defendant and have been so acquaint: with him for six years. 2. The said defendant is not now and never was, during said six years, a resident the Northwest Territories of Canada, but has always resided in England. 3. The said defendant has for a few years visited the said District of Alberta, in r summer time for a few months, but such visits were only temporary, and not for the purpose making the said Territories his home, and he would each year return to his permanent hor 10 in England, where his family remained during such visits of the defendant . i* I SWORN before me at the town of Calgary in the District of Alberta, this loth day of April, 1889. [Sgd.] J. P. J. JEPHSON, A Notary Public in and for the N. W. T [Sgd.] J. J. Barter. ike oath ami sa m so acquaint: irs, a resident )f Alberta, in "or the purpose i permanent hor R. Id AFFIDAVIT OF J. A. LOUGHEED. I, James Alkxandkr LoL'tiHIilil), of the town of Calgary, in the District of Alberta Advocate, make oath and sa)-: — 1. 1 am one of the Advocates for the defendant in this action, and my partner, Pete McCarthy, and I have for nearly two >ears been the Solicitors for the defendant at the town Calgar)-, and as such solicitors have, during that time, had much correspondence with the fir of Berridge & Miles, Solicitors, Leicester. England, who were then acting as solicitors forth defendant, in our said co.rcspondencc. i 2. That on the 8th day of April instant, ni)- partner and I received a letter from the sat | lO Berridge & Miles, and along with the said letter was enclosed the copy of writ, statement claim and order now shewn to me and market! as exhibits" A.,"" B."and " C," and the said Be 'M ridge & Miles in said letter stated that said exhibits hatl been served on the defendant o.i tl; |" I 5th day of Februarj' last. J. That along with said letter was also enclosed the affidavit of the defendant, now she to me and marked exhibit " D.," and from the facts aforesaid, I verily believe the said exhib: are the copies of the writ, statement of claim and order iii this action, served on the defcniJa: in England, 15th day of Februa.y last. 4. Since receiving such leUciS aiul papers as aforesaiil, I have been makinj enquiii; from various pcisons who would be likely to have a knowledge of the facis as to the p.omisst 20 notes sued on, and I have been informed b\- one F. G. Smith, banker, of Calgary, that he li seen at lea.st one of the promissoij- notes which had been given by the defendant to the plaiiit and which I believe was one of the notes sued on, and the said Smilh informed me that thesa note which he had seen he believed and understood was drawn and dated in England antl v not made payable at any particular place, and I have been also so informed by A. D. Brai; waite. Esquire, of Calgary, that he had .seen the said notes and that they were drawn and ma as aforesaid, and from these facts and from the papers and documents received along witli i said letter, I verily believe the promissory notes, sued on herein, were made and dated England, anu were not made payable at any particular place. SWORN before me, at the town of J9 Calgary, in the District of Alberta, this 18th day of April, 1889. [Sgd.] James A. Lougheed. [Sgd.] John C. F. Bown. A. Notary Public in and for the Northwest Territories. )istrict of Alberta my partner, Pete lant at the town • Icnce with the fir;^ IS solicitors for th letter from the sa: fvvrit, statCiTicnt ," aiid the said Be- le defendant oii tl ^fendant, now she vc the said exhib :d on the defendar 111 making enqun; as to the p.omissr Calijary, that he ,1 >Klant to the plai.n Tied me that the s,^ in England and v :d by A. D. Bnii 'ere drawn and ma sived along witli ; made and dated OUGHEED. 31 AFFIDAVIT OF DEFENDANT. . I I, Charlks William Maktix, late of Quorn I'lace, Quormlon, in the Count} Leicester, Rapchman, but now of Barrow House. Barrow upon Soar, in the said Countv. n oath and say as follows : 1. I have read copy deposition of the plaintiff, upon his examination herein, taken 24th day of " prii, 1889, the l6th day of Ma\-, 1889, and the 1 8th day of May, 1889, respucti 2. I have also read copy affidavit of the plaintiff, sworn in these proceedings, on tiic; day of April, 1889, 3. I crave lea\c to refer to the affidavit sworn b\- nie in these proceedinj;s, on the ; 10 day of March, 1889, and to repeat herein the statements therein, to which I depose in thi^ ;^ affidavit. 4. The statements to which I deposed in m\- affidasit, sworn on the 23rd day of Mf. 1889, are not challenged but are confirmed by the statements made by the plaintiff in hisc.v nation and affidavit, above referred to. 5. It is true that my Solicitors objected to the Power of Attorney orij^inally given b plaintiff to his agent, — this objection was admitted to be valid by the plainaff, who subscque executed another Power of Attorney. This second Power of Attorney was not acted up England, .solely because a fresh agreement was entered into between the plaintiff and mc deponent, which superceded the previous agreement. 20 6. No unneces.sary delays were caused by me with reference to the completioin first agreement in England. I was always ready and willing to complete it, but the plaintr appointed two agents in England to complete the agreement on his behalf, one to sign aiK other to advise, but the signer could not sign and the adviser would not advise. 7. With regard to the second agreement entered into between mc and the plaintiti, that it was an agreement with regard to which the cause of action (if any) did not arise v the jurisdiction of this Honorable Court and that all the plaintiff can be legally entitled a decree for specific performance of the true and equitable intent of the said agreement, 1: county where the agreement was entered into, and where the breach of it (if any, which I ti admit) has occurred. 30 8. The two notes of hand, referred to in the plaintiffs affidavit, were made by ml deponent, in England, and were deliverv'd and appropriated through the post to the plaint- England, and the plaintiff has adopted this view by presenting one of the notes for paymt : England. ?t 1, in the Count} le said Count)', n ion herein, taken ay, 1 889, rcspecti occcdings, on the: )ceedinj;s, on the : .1 I depose in the he 23rd day of M; i plaintiff in hiscx originally ^ivcii b inviff, who subscqut vas no^ acted up e plaintiff and mc • the completion < ; it, but the plaiiiti: ilf, one to sign aiK advise. ; and the plaintiff. ny) did not arise w be legally entitled ; said agreement, i- t (if any, which 1 <^ were made by nv e post to the plain'' | the notes for pa>nit 9. With rci;;ird to the boiul, I positively sa>, that it is untrue that when I saw the phiin tiff 1 refused to put dates in, as reciuested by him ; on the eontniry, I told the p'airiiff lliat iu nii^ht till in the dates as he liked, and I further sav that if in any po'nt wh.-tew;, iMiy.iiin. remains to be ilone in order to comply si)ecifieally with the terms of tlie a^ "cement entered in; between me and the plaintiff, 1 am ready and willinij; to ilo what he may reasonably retjuirc^ me, to perfect the same, and if there be an\' impeifeciion in the said hum] (which I iln iv admit) it arises under the mutual consent of the pliiutiff and mc, this deponent, or by m; mutual mistake, which I am ready to rectif\-. 10. No rec|uest has ever been maile to me to do anythiui; further, with retjard to thehon It) nor has it ever been su^i^esteil to mv_ that it was iinalid ; on the contrary, it was di .liiu! accepted by the plaintiff, am! the statement that he considers it in\ did, is an afterthought, ai has beer, made to assist the plaintiff in his attempt to prosecute these proceedings ni tl; Honorable COurt. 11. In conclusion, 1 say that it was. all throutjh, distinctly understood between me iir the planitiff that our aLjreement was to Iu- |)erformed in l*',n^land, and the plaintiff has by 1 conduct and in his examination and afTulavit, fullv admitteil that he was aware of this uiidi stamlin^;, and it is misleadin^f this Honorable Court for the plaintiff to assert ihat this is mca a case of goods sold and delivered within the jurisdiction of the Court, when the plaintiff is hi aware that the whole of his agreement with me was to enable and to assist mc in formini; i 20 Quoin Ranch Company, Limited, under well ilefmed arrangements, to which the pl.iiii; assented, -xnd whereby he will eventuallj- receive the money which he is entitled to rcccivi; England, with remunerative rates of interest. SWORN at Leicester, in the County of Leicester, in Kngland, this jjth day of June, 1889. Heft.re me [Sgd.J KU.ML'NI) IJUTTD.N, Notary Public, Leicester. [Sgd.] Cmarlks Wm. Martin. 1 I saw the plain 2 plairdff that ht latevcr, aMy'.liiii;: merit entered in; ;onably recjuirci (which 1 dii 11' (oncnt, or b\ m; -ey;ard to thclxm , it was di .timt afterthought, ai roceedings iii t!. ] between me ;ir |)hiintifr has b\ : ,vare of this umk ihat this is nica the phiintiff is «i ne in forminL; t vhich the plaint itled to receive Martin. ■HI 3.3 EXAMINATION OF C. W. MARTIN, THE DEFENDANT. The examination of Charles William Martin, above named defentiant, ta'cn bctor the iMulcisiyncd l'..\aniincr this roth day of August 1889, pursuant to the order ot Mr. J Rouleau, herein, dated the 26th day of July, A. D. 1889. C11AK1.es WlM.IA.M Martin, sworn and examined by Mr. Davis: — I am the defendant in this action. In the 4th clause of my affidavit sworn oi March, '89, I mention that the agreement of the 20th November, '86, was to be a purely Iv, agreement. This statement is based on the fact that it was agreed upon between iny-M Mr. Moore b,)th verbally and in writing. The writing showing this is contained in the ,., 10 mont itself The comersalion between myself and Mr. Moore in which this was vc agreed, took place both before and after the signing of the agreement of 20th Novcnibr The.sc conversations took place at various places, principady at the Sheep Creek Ranch, known as the Quorn Ranche. The purport of the;*e conversations is set out in my atTic filed in this case, to which I ha\e nothing to add. With time and reference, I have nn I could, if necessary, amplify tlie statements there made, as to the conversations referred; Q. Can you, at the present time, give the conversations \ou refer to any more fiilK set out in your affidavits, filed herein ? A No. Q. Is it correct, that a formal agreement was to be entered into m iCngland, betwa ^ 20 and Mr. Moore or his agents, carrying out full) the arrangement made between you at • % Creek ? A. Vcs. Q. Was this done ? A. Ves. y. What agreement contains the full agreement jou refer to ? A. The Intlenturc of the 20th September, 188;, and a further agreement, dated the May, 1888. ^' Q. Was this agreement of the 20th September, 1887, ever executed by yourself . in. if Moore ? if I ANT. ant, ta'-c!i bcln order ot Mr i davit sworn (ni :o be a purcl_\- 1; m between i7i\ ■m. nlained in the ,. ich this was vcr 20th Novcnibi.- :p Creek Rami' out in my aiTu: L'nce, I have im sations referred : to any more fulh lui^land, betua Detwecn vou at ■ eement, dated iht ed by yourself am Ow'2 A. It was siyiied by both ot us. Q. Was the agreement of the 20th September, 1887, signed and accepted, subject to coir pleCioii of a certain memorandum for security of unpaid balance of purchase money, mentioin. in said agreement ? A. Vcs. Q. Is that the signature of this agreement, mentioned above ? A, Vcs. Q. Was tliat inemorandum for security of uni)aid balance ever completed ? A. Ves. 10 (J. Is exhibit " I) " tiie memorandum ynu refer to? A. Yes. Q. Did you produce to Mr. Moore a security ecjually valuable in the estimation of 1 and his legal adviser (calling the arbitration of some eminent counsel, if necessary), to a lien ;6 10000 worth of live stock, as provided in the agreement of November 20th, 1886 ? A. As regards Moore. — Yes, — as provided by Indenture of the lyth dtay of May, iSSS Q. What about Moore's legal adviser? Did you prcKJuce secuiity satisfactory to him- A. M\' answer to that is, that I dealt with the principal, and not with the repuili.i' agent. Q. Did >oii or did you not produce security satisfactory to Moore's legal adviser? A. I have already answered that (|uestion. Q. What do \'ou mean bv repudiated ? A. I mean that I dealt directl) with the principal and not with the agent, at the roj. of the principal, both written and verbal. y. Where is the written request ? A. To the best of my knowledge and belief, in tijc hands of my solicitors. 20 1, subject to Loii loney, mentions ted 2 estimation ot I :cssary), to a Ucii \, 1886? Jay of May. iS^^ tisfactory to him' with the rcpuilw legal adviser ? e agent, at the ice,. f^m ilicitors. 1 T, 33 0, I 1 what writini^s was it contained ? A. In a letter from Moore to Martin. Q. Of about what date? A. Sometime in the year 1887, previous to the month of Jul)'. Q. What are the lethal difficulties referred to by you in clause 6 or your affiiiav:; 23rd March. 1889? A. Cannot say, not hcuv^ a la\\\er. They are contained and fully set forth in a mjIl nous correspondence between the solicitors of Mr. Moore and myself. My solicitor iiitor mc that the nature of these difficulties was that they were truinjied up by Moore's solici: 10 intentionall)', to ilelay completion of proccctlings. Q. Were these difficulties with reference to the securitv- to be i,nven by you to Mooa A. In part. Q. The security offered b)- you was unsatisfactor)- to .Moore's solicitors ? A. Hearing; in mind m>' rej)!}- to the last question but <»ne and the security bcini; > factory to Moore, I was not at the pains to iinestiijate this matter personally. Q. Did you understand from your solicitor that the security offered by >- previous replies, that this formeil part of the frm J[ objections taken by Moore's solicitors. 20 Q' When and where diil the jjlaiiitiff mal' that two persons, discussing confnK matters, would do so in the presence and heariii;^' of other parties. Q. What was the ^ist of the conversation, in that respect, as nearly as you can renin A. The tenor of the convcrsasions was the notorious w inter losses cf 'H6 and '87. Iff' n V vour uffidavi; et forth in a vok: y solicitor inter: IV Moore's solici: bv vou to M<»»K tors ? ; security beini; ^^i .lly. offcroil by y" d part of the fii\' cd in clause S, "t discussing; coiiluK ly as you can renuir IS cf 'S6 and '^7 given ? 10 36 Q. Is that all ycju can rcniL-nibcr of the conversation mentioned in said clause 8 ? A. I consider that covers what \'ou call the ^ist of the conNcrsation. Q. (ii\ e the words of that conversation as nearl>' as \ou can. A. That is impossible, after an interval of more than two years. y. Can \oii jfi\e no further account of this conversation than what you have aiiuai, A. I can onl>- tax m\- memory with the results, not with the minutie of the convers;iti' CJ. l.ast question repeated. .\. Nil — not off-haml. (J. Uo \()U mean ofl-haiul at present ? .\. \cs. 30 Q. Did \ou teiuler the plaintiff mort^'at^e ilebentures in the Ouorn Ranche Company the full amount of the planliff's claim against you, as stated in clause 11 of your affidavit 23rd March, '89? A. \'es, for the only claim 1 was atUiscd Moore had ajfainst me, namely, ;65000. y. llail he MO further claim aL^amst \ou than ^5000, at that time? .\. None, absolutely none. (J. What was the purchase price that you were to \y,iy Mr. Moore for his intere.st in SIk Creek Kanche Companj- ? .\. $44,500. (J. W'h.it do you mean then by s,i\ i'i|4 that at the time you tendered these deoeniui the only claim he had a}fainst \du was /,5ooo? A. I mean that /,"50oo was all the money then due to Moore, for principal and intcn the remainder beinj,' provided for b)' security, repa>able at my convenience, under ; Indenture, dated Kjlh Ma)', 18S8, or as further effected by correspondence between Moore .1: myself, dated Sejjtember 20lh, '87, and marked " (i " and " 11 " in the exhibits to my afliilin I 1,'ave two promissor)' notes to |)laintifr I clause 8 ? you have aliLiu Df the conversatb Umchc Compans i of your affidavit mely. ^jcxx). his interest in SIki cd these dcbenuir )rincipal and inlcn ^| inenience, under '. ; between Moore a hibits to my afluU^ '^^ m 37 Q. Were tliese notes for the ^5000 mentioned b\- \ou as due Moore, or for the hil;, which \'ou sa)- was not due ? A. Obviously for that half which might be due. Q. And it was for the same ^5000 for which \ou tendered the mortgage debenture^- A. Yes, Q. Those promissor)- notes were, 1 belic\e. for ^'2500 each ? A. Ves, at 3 and 6 months. Q. They are unpaid, 1 believe ? A Yes Q. For what reason have jou not paid them ? A. Because Iwasadxised that to tlo sowmild be compromising to me, in view action pending for ^' 10,000, which I claim is not il;. y. Were these notes not long overdue before this action was instituted ? A. The dates speak for themselves. y. Was an action i)eiKlini,' when these notes fell due ? A. No. The first note was iluc September 12th, '88, and the second Uecember 1:: and the writ was issued in Calgar\-, on the 26th December, 1888. y. 'i'he fear of compromising a pending suit coukl not have been )'our reason! paying these notes prior to December 26th, 1888 ? 2Q •■^- 't \\as the reason for not paj'ing subsc(iuentl\- to that date. 1 had other iwi- not paying previous to that date. O. What were the reasons for not paying prior to that date ? .\. Because I required the money foi other purposes, and Moore, in accordanciMi true spirit of our agreement, did not press me to do so. Q. What documents c(jntain the linal and binding agreement in this matter yourself and the plaintiff? i" s: :, or for the ImIs yage debenture- If to me, in vil\\ ituted ? cond Uecembei- i:. been your reason t I had other rca- ore, in accordance w ait in this niauei- Ix A I am advised tliat ail th" documents set turtii as exhibits to my aHidavit wduUi h, to be read together, before a Court of Eciuit\- could authoritivel>' determine the true natiia the agreement existing between us. Q. What is the property which was sold to sou b\- the plaintiff? A. All his interest in the Sheep Creek Ra,;che. y. That propert>- I believe >-ou have since sold to the Ouorn Ranche Companj' ? I A. More accuratelx-, that properly is now represented b>- a part of my share capita! that Comijany. ^ y. What do \()u mean b_\- that ? ^ lo A. I mean I never soUI ; it represents part of my interest in the Company ; my shart the Quorn Ranche Company consists in the whole of the old Sheep Creek Ranche Coinpa with additions. Q. Who owns that propert\- at the present time ? A. The Ouorn Ranche Company. Q. And for this propcrtv sou ha\e receivetl from the Quorn Ranch Company a ccr number of shares in thjit Comi)an_\- ? A. Ves. Q. Have you ever ])aiil tiie plaintiff anythinj^ on account of the purchase price ul propcrt)-, or interest thereon ? 20 A. No. but I have several times offered to do so, which has been declined, y. When did you (jffer to do so ? A. I have offered him the interest di.e, cash on account antl debentures, which v equivalent to cash for the full amount. y. When and where did \ou of.er liiri .my interest, and how much ? -M * -9b5 A. On August 20th or 21st, 1889; all interest due, in Calgary, without prcjudic ■■ pending suits. y. At an\- other tiine.^ S^ik itilidavit would hi c the true natua c Ccjinpaii) ? my share capitii! iinpany ; my sliar. k Ranche Cuinpi :h Company a ccr: purchase price cc lined. ebcnturcs, whicli h? y, without prcjiuli' 39 A. No interest was clue previous to coininencenieiit ot this -^uit. Q. Dill you ever a^'rce, prior t(j commcncenieiit of this suit, tn pa\- ■.•uy interest ])ri-\i(tus to the commencement of this suit ? A. No; all interest up to Jaiuiar> ist, iSS(j. was iiuluiied, 1)\- a.^reoni'iu, in the iuinj) sum of /'lo.ooo, and fix e per cent interest, i)n the sum of /' 10,000. wasdue. I)\ as^reement, on January ist, it<8y. Q. Where is that agreenic-iit contained / A. That aj^reemrnt was a \erl);done, l)Ut was also contamed in ,1 corre^ptmdi'ncc betwein myself and A^)ore, wlien I sent him the bills, which correspmulence ,> \\\ the h.mds I'f my solici- 10 tor in ICn^dand. O. \\'he>e did this verbal conversation about intcrc-it taivi |)la(c, .iiid when ? A. I cannot An the tiate more closcl\- titan -hortiv aUci ni\ .ini\al in Cd^ai), m the year i8iS8, when the matters dealt with m the liidiiilmi- of M.iy \<,\h. iSSS, were discussed between us. This w,is at Cal};ar_\-, ir in the iieii^liborhood, pos^iblv at Moore's house 'I'here was no one else present. vj. Where liid \-ou malou speak .jf •• A I su-^e.sted mleresi and ,ash nr. sum UK-ntioned on a. count, without prejuilite. and was to.d that the imiposition thus informaily maue. could not be entertamed y. I)<. \ou mean by saxn.K the m-MtKage debentures you tcudcre.l were the s.unc as cash that the)' could be readib iurned mto cash at par:* li-\ lolis f luin|) L'lit, on iCtWCC'Il • sdlici- in I lie ■iCllSSCll al iii\ 1H88, Lc, ami .n>\\. 4'-' \ I Mic.in tlut I h.ul M.cl. cunrulfiKc iii Mr. Mn.,rc's l..)al a.iiR-i.M, U> tl.c spirit of the a^Trrniuu cx.siu.t; bflucc, us. that I umuI.mt.I him .Incunimts which umil.l have cMahlc-.l him. had he th.m-ht fit. l.v this time. withn...t n-.tire. t.. have put the sheriK iut.. the (Ju-ni Kaiiche. to sell out sn much ..fthe /.Thd.OOO imu tluTe.-i'. as unuUl have sat isCini his claim for /,5000. interest ai).l c.ts ; an.! tliis he clearlv uiuierstoo.l and distiuclly refused. I kn<.\v he understood this, because he was tlu' spec.allv app.-mted a^^eiit of tile (oinpaiiv for their due rei^istralion as chattel inorl;,'a:,,'e, in accordance viitli llie i.iv of the couiUr\ . () Didvoii voui^lf att(iiii>t tn ,.isli tluM' verv .leheiuures at the Imperial Maiik. in ' 'aI'M'*v , vv itlioul -vuccess ? ID A N. {.). Did vou attempt to net;h proceed- ovii tn the plaintiff - w riNt;'ss ur.ii sr> h > .\.\^\\ r.u. i in ma it i < 'i < ' 'i N"-! i . \^ ikI'^i i i \ ani (_). Are the debentures uiitier discussion now. tlie ones \ou spi.iK of leiiderinj; to the |)Iaiiitiff, in your alVidav it of .March j 5, "S^ ? A Ves. O Ki icrrinj,' to the 6th para;..;iapli of \ om iflidav it >>f the j;th lune, |SS(>. how do vou know the " .idv iser would not .idvixe," ami what do \ou mean b)' il ' .•\. I know ( rookslianlv would imt ,isM>t Mcioninanv wa\tiii'- Moore, has since doiu, and adv iM'd him not to dn mi. bd.iuse M Mne sfut me a letter from Crookshank to him, .Moore, sa\ iii); mi ,ind •^o mail) wonU, and in ordi" !>• show me th.it it was not his fault that tlie deeds were not . (impletireted and iie};otialed m I'.nniand, ami in actordaiH. wiili the l.iw of that couiilrv, to avoid complualioiis wliicli iiii^'lil arise from lite dif <0 feieiit pia( ti< e of l,iw m ( .inaila. (J Is .t true th.it llu pl.iintill reijiuslid vou to fill m tin d.ites, wliul< wert left blank, in llie biiiid i{i\cii by )(h tin \<>ii cnt, I'dtn WilS and voir at (.(I it her il III dif- k. Ill 41 A. Yes, he first called my attention to these blanks, and suggested remedying the incom- plete appearance of the document. Q. Did you ever do so ? \ Not with m\- own hand, but I told him he might put in anything he liki-d, as I con- sidered it quite immaterial, the nature of the bond being dcfiiictl b\' signed ilocumenls and its perir.d regulated by two letters, marked "G" and "I'," in the exhibits to the ..ist anui..\ t, which constitute a supplementary ageemtnt made for th.il purpose. y. What are the signed documents, referred to in \n these ddcuments, but know that some such exist, showing that this bond was as loli.iteral seturitj- U> the shares de|M)sited, and was probably given spijntaneous!)- b)- me to Moore, after the signature of the irulenture of May 19th, 1888, as additional security, and the documents recortling the transaction, are in the hands of my English Solicitor, and will probablj- be found to be of the nature of a written re(|uest from Moore and a written consent from me. [Sgil.J ( ii.vui.i.s U.\i. Martin. [Sgd.] JoirN K. CosTKi.vN, Examiner. icom- 1 ron- iiid its llU.N t. letters ,t some lu! was ay 19th, is of m> est from 42 .\1 me a^Min-l tlie abo^c ilcfemlanl for the recovery of $44,500.00 tot^ether with interest lliereon at llic rate of five i)er rent per aiuiuni, from the 1st day of January. 18S7, beinj; the ai,'reed price of m\ interest in tlie Sluei) (reek Ranche, which 'o interest I sold and delivered to the defendant, at Sheei) (reek, in the District of Alberta, on the 20 day of Novemlx.T, 1S.S6 ; .\dM>cate. <> That the statement in • laiisr «, of s.nd iiffidavit, tli.n (Ik- loss therein ni'-ntioned should tall e«|ually up<.ii me and the deleiulant IS mrorrect, and as a matter of f;ict, the valuation of my interest in said ranche pro|)erty was never varied from the sum at whw h it was fixed be- tween me and the defendant, in our agreement of NoMiiiber _'oth, iHSd, id wit $44,500. of bove y c.f ; I St •hich II the Is in stock itock, , •• on nt at said ; said iibovc ui the : said ^iiorn iwiicd I'd to upon dmuld ion uf kI be- i V i!1 10. As t(. clauses y ami lo, in saui alTulavit, I state that the (.iil>- variations to our aj;rce- mcnt of November 20th. 1886. were as to time of payment ami the nature of the security to be given for unpaiil balance of purchase mone)-. not coveretl by notes. 11. Said variations were made ni conformity with offers, conta'ned in a letter from defendant to me, ilated jolh March, 18S8, which letter is now shown ti> me and marked exhibit " A," which variation consisted in my extending the time for pajinent of fust-half of said pur- chase mf)nc>-, and in m\' accepting the personal bond of the defendant for ^5000, ant! 50 shares of Ziioo each in the (Juorn Ranche Compan\', as securit)- for the last half 12. Said otters were accepted by me in a letter mailed b) me to defeiulant, in which 10 I enclosed signed agreement of Max- 19th, 1H88, marked as exhibit "C" to said aflulavit of defendant, and which is referred to as mortgage, in said letter of defendant, tm the 4th page thereof % 13. The said letter and agreement were sent bv me, direct to defendant, and not through the hands of my brother, as suggested in said letter from delcmlant 14. In due course I received Iron the deteiulani two promissor)- notes, mentioned iti his said letter, also bond now shown to me i.nd marked as exhibit " U " 15. As to paragraph 1 1, 'if said allidavit, I sav that it is imorreci, inasmucit as the morl- tgage debentures, therein referred to, were not ottered to me b\ defendant for the amount of my whole claim, but only for one-half of same, in lieu of defendant's promissoiy notes, which 20 were then o.crdue i(>. As to the I ;th paragraph, ot detendant's saiil atVidavii, I sa\ that at the date lil my said agreement with defendant, of November joth, 1886, 1 turned over to the ilefcndant all my said interest in the said Sheep Creek Uanche and the stoi k lx:longing to the same, and have never lad any possessicjii of uv control over same since said date, in an> matter whatever, but since said date delendant has had absolute |)ossession and control of saiil pro|)erty, until he transferred same to the Quorn Ranche ( ompaiiy Limiteilj, which he did some time prior to December 1 jth, 1 888 17. On Dect lier 1 jtli, 1888. the said yiioni Ranch i ompaii) . gave a hill of Sale, b) wa\- of mortgage to delendant, as Trustee, on jooo head of cattle bramled " / " on right rib, and 30 louo head oi horses branded — i \|^- on right shoulder, all of whiih saui cattle (except increase; and part of saiil horses were, from the _>oth da\ of November, 188O, the |)roperty c)f the Sheep (reek Ranche Companv, and I'ormcd .1 large part <.f the pro|)eit\ m which I trans- ferred my interest, as aforesaiil, to the ilefendant, on said julh No\ ember. 1 8. I have searched and found the said chattel mortgage ilul) tiled with the clerk of the Calgar)- Registration District 19. The agreement of September .'8tli, 1887, marked as exhibit " B " to said affidavit of defendant, was to have been signed by me on the fulfilment of the terms of a ccrtaim memoran- dum, referred to and marked as exhibit "D" in said affidavit of defendant, but the terms of said memorandum were not fulfiled b)- defendant, and the said agreement was, therefore, never signed by me. 20. The paper writing now sho\s n to me, and marked as exhibit " C," was signed and delivered tcj me bj- the defendant, personal!)-, at Sheep Creek aforesaid, in or about the month of September, 1887. SWORN before me, at Calgary, in the 10 District of Alberta, this 23rd day of April, 1889. [Sgd.] John C. F. Mown. A Commissioner, &c [Sgd] Jamfs Stewart Moore. it ol aran- 'said lever and onth IMAGE EVALUATION TEST TARGET (MT-S) ^ £< // 1.0 I.I UiJM. tlS. •u Kii |2.2 Ska *- !S Hi u 20 1.8 1.25 1.4 ^ .^ 6" - ► /J 71 / 4^ />y s Photographic Sciences Corporation 33 WBST V.AIN STREf'T WWiTI* » ,Y !45I0 (716} 372-4S03 v iV ^ s? \ \ >* ^ >« \ ^. '^ • ? 9.r ^^ . 4" 4^ l/.x 45 m EXHIBIT "A," REFERRED TO IN I'LAINTIFFS AFFIDAVIT. Ouorn, March 30, 1888. Dear Mooru, There is no difference of opinion between us as to the nature of our agreement. " Sept, 30, 1887," " If Martin cannot produce a securit\- which is equal!)- valuable in the estimation of Moore, his Legal Adviser (calling in the arbitration of some eminent counsel, if necessary). The original securit) —stands." (Here tollows the usual arbitration clause.) Now read enclosed letters. (Enclosure " A."') 10 This means there may be no disagreement between Moore & Martin, but we will make such difficulty and you may go on (to arbitration or elsewhere). Here I stopped it There have been enough lawvers' costs ahead)' An arbitra- tion would tahe another three months and cost ^'loo. I shall not go back on one single point in our agreement, but as you know, my part of Moore it Martin has not turned out for me as I had a right to expect, and I think you ought to consider this, not as affecting principals, but ways and means. I. Your brother, the 3rd partner, failed us and left us short of capital at starting. ^. You sprung upon me unexpectctll)' In' \'(>ur wish U) go out of the business, untl i ilid not insist on the 6 months notice, to which I was entitled. 20 i- Within that six months, as you know, we lost .'5 per cent, saj' ^."5000), and the [)ricc of beef fell 20 per cent. 4. The difficulties anil dela\s h.a\e been m.nle, not b\- mc, but b\- _\i)ur advisors. In spite of all this I say "have patience with me and 1 will pay thee all." \'ou will get^"lo,000 for the ;{,'50OO you invested 4 j-ears ago, with interium interest at 3 jjcr cent. 1 cabled )esterdaj' that I thought 1 c(juld'promise \-ou ^"5000 this year and ^5000 ne.\t. And as I have cotne in for an extra £ locx) per an. of income, you are probabl) as safe of xour 5 per cent, .'s ) ou were before. The whole t|uestion is therefore narrowed down to " what security ought Moore to ask and Martin to give for the ;6"s,ooo temporarilj' left on mortgage at 5 i)er cent, interest." The original idea was a lien on 1000 cattle ; this, however, is now open to objections on 30 both sides. Now that a compan)- is registered, it is (mic thing for them lo sanction the L* in the nscl, if .' usual make rbitra )art of ^'ht t(» I Cli( [Jrue spile Ji- the ■ tliiit or an fuiv. u ask IS on 1 llie f 46 deposit of their Scrip, which the\- reserve the ri>;ht to redeem at par, whenever necessarj-, but (luite another thiny to give an outsider the right (without notice) of seizing, say all their thoroughbred bulls, at bulling time. There is no real objection to depositing scrip, it is done every day with English Hankers. The real lawj-ers objection is " That presumsdlj- all companies are swindles, and that ;^ioo scrip docs not represent /,"icx)0 worth of stock and buildings, &c. " This, you know, is not the case here. Your real security (which the>- cannot understand) is this, viz. : That you know the business to be genuine, and that your i,'ioo investment in it became i,"200 in 4 years. There- fore, if )'ou had to destrain cjii m\' /"looo, on Ma>- hrst, ne.\t \ear (i. e., two years after registra- 10 tion of Comi)any), that each share would be worth 1 50 bj- increase. And it is not likely that any one would let you have 7.500 for 5000, or sacrifice /'3500 cai)ital, sooner than pay 250 interest. If you rcall\- want anything further, in addition to the 5000 on Canadian property, I will, whenever you ask me, give j-ou also mj- luiglish bond for another ^,'5000, so you can have it both way.s. And I will further jiromise you, between man and man, (without prejudice and without lawyers) that if anything occurs in the course of the next 12 months, to depreciate the value of the concern, such as une.vijccted losses, improper sales, mismanagement or revolutioni I will, on demand, give \(HI whatever further security you may demand, that is reasonable and in my power to do. 20 A further consignment of breeding horses (of a better classj was voted at our last general meeting, I wanted them this May but my friends wished it to stand over till ne.\t May, to see the results of this foaling season. This again will add some 20 per cent, to the value of the £ 100 share. If this is satisfactory to you (as I hope it is;, all )ou will have to do is sign enclosed mortgage, which will close the business, then [jost it bj- return mail to (say) your brother Harry (whom I can trust and will do as >-ol t.jll hini; and tell him to post enclosed sealed packet to me, whenever he has receiveil from mc 1 Counterpart (or copy) of an agreemeiu for dissolution of partnership. 2. {"wo notes of hand. C. W. Martin to J. S. Moore, for ^"2500 each, at 3 and 6 months, 30 respectively, from dale of liis gi\ ing me your agreement. ,5. C. W. Martin's boml for ^'5000 (?) 4. 50 ^loo shares in the Uuorn Ranch Co., luunbered Nos. 1 to 50 inclusive. I have only to add if luiglish make difficulties out of our simple and straightforward business, Canadian Lawyers would make aiuun'ties, -md we are well quit of both. Sincerely yours, [Sgtl.] Cii,\i' seal; D ed this seventeenth day of May, in the year one thousand eight hundred and eighty-eight. day uf- WHEREAS by an Indenture dated the 10 one thousand eight hundred and eighty-eight, and made between the said Charles William Martin of the one part and the said James Stewart Moore of the other part ; certain shares and hereditaments therein particularlj- described ha\c been assigned and charged by the said Charles William Martin to and in favour of the said James Stewart Moore by way of mortgage to secure the payment on the day of to the said James Stewart Moore, of the sum of five thousand pounds with interest for the same at the rate of five pounds per centum per annum. AND WHEREAS the .said Charles William Martin by way of further securing the payment of the said sum of five thousantl pounds has agreed with the said James Stewart Moore to execute the above written bond. 20 NOW THE CONDITION OF THE ABOVE WRITTEN BOND is such that if the above bounden Charles William Martin shall pay to the said James Stewart Moore the sum of five thousand pounds on the day of with interest thereon after the rate of five pounds per centum, per annum, then the above written bond shall be void, otherwi.se the same shall remain in full force and virtue. 30 SIGNED, SEALED .and DELI VEt - ED by the before named CHARLES William Martin in the presence of Edward Miles, Solicitor, Leicester. [Sgd.J Charles Wm. Martin. [seal] lUiam :ester, ivitty, )unds, seal; eight illiam s and t said -tgagc- t(j same ig the tewart if the um of nterest 1 shall seal 48 EXHIBIT "C." REFERRED TO IN PLAINTIFF'S AFFIDAVIT. Moore to receive from C. VV. Martin on or before Nov. ist, 1887, cheque for ;^350 on a/c of interest due Jan'y. ist, 1888, on purchase money of Ranch $44,500. AGREED TO. [Sgd.] Ch.\rles Wm. Martin. [Sgd.] J.x.MKs Stkwart Moore. -ENCLOSURES REFERRED TO IN PLAINTIFF'S AFFIDAVIT. Berridge & Miles, Solicitors. 10 Leicester, 30TH Jan'y. 1888. Dear Martin : RE MOORE. On the other side I forward copy of a letter which has come from Messrs. Crookshank & Leech. This puts it beyond all doubt that they (i. e. Crookshank & Leech) make the difficulty. There is no dispute with Moore, that I '', and remit them to me. The bills were bills to me. The first bill was to be for one fourth purchase money, and the second bill was also to be for one fourth the purchase money. I kept a cojjy of the Agreement, made at Sheep Creek. Exhibit " A "—that was filed with defendant's affidavit — is a copy, unless there are some clerical errors, made in copying. (Mr. Davis, for Plaintiff, agrees to produce the original.) It is the agreement referred to in clause 10, of my affidavit, sworn herein, 23rd of April, '89. It was signed on the day of its date, about 20th November, '86. There were certain conditions annexed tcj this Agreement, and which conditions were also signed b\- both ])arties. I had left a general Power of Attorney with my agent, and I had thought that 30 that Power of Attorney would be sufficient to enable him to carry out this Agreement, but Mr. Martin's Solicitors objected t(j that Power of Attorney, as insufficient, and I sent Mr. Stewart a special Power enabling him to deal with that matter. I have not a copy of that special Power of Attorney. My agent there diil not get the two bills he was to have received. He did not get anything of any kind. Me never, to my knowledge, signed any final Agreement, as my agent under that Power of Attorne>-. He never got any notes or securities, so he never signed any Agreement. There was nothing agreed upon between my and Martin's Solicitors in Eng- land. I was notified by my Solicitors that they could not agree with Mr. Martin's Solicitors, as to this agreement. They notified me that Mr. Martin's Solicitors wanted to substitute a differ- ent security from that agreed upon, and they would not accept it without my sanction. I sup- 30 po.se my agent there would have signed an agreement there, if the Solicitors of both parties had .51 agreed upon the terms of one. i do not sec vvh>- he should not have done so. I presume that if the Solicitors had agreed upon the terms, he would have got the notes and securit>- and signed the Agreement. I do not think he would have signed without getting the notes and security, as that would have been signing away my property, without getting any equivalent. Q. Was the sole reason for your agent not signing an Agreement in England, what you gave us, namely, that he never got the notes and securities and so he never signed the Agree- ment ? Mr. Davis objects to the question on the ground that the question ."mplies that onl>- one reason was given, namely, not having received the notes and securities, for not signing the 10 Agreement, which he claims to be incorrect. On advice of Coun.sel, Mr. Moore refuses to answer the question. Q. Give me the reasons why your agent in Great Britain did not execute the Agreement, as he had power to ilo ? A. I don't know that I can as I never saw my agent or had any conversation with him about it. I had a letter from him. He acted upon his judgment for my interests. Q. Do you know of an>' reason why your agent did not sign the agreement, as he hatl power to do, other than the reasons that he did not get the notes and securities ? Mr. Davis objects to the question on the ground that it implies that he knows that not giving the notes and securities was the reason for not signing, which is incorrect, according to 20 his last answer. u ' On advice of Coun.sel, witness refuses to answer. Witness ilesircs u> state that in answer to the question " Give me the reasons wh)' your agent in tireat Britain did not execute the Agreement, as he had power to do ? " that he does not remember the contents of the letter or letters received from his agent, mentioned in his answer to the question. I do not know where that letter is. 1 believe 1 received several letters on the subject, I am not certain whether I have any of those letters now, as I have not searchetl. Q. Having now refreshed your inemor)' from a letter, are you able to say why you believe your agent tlid not sign the Agreement ? A. Mr. Crookshank wrote Mr. Mai tin's Solicitors, on 5th April, '87, enclosing the special 30 Power of Attorney I had sent. He had got no answer from them at the date of the letter I now look at, dated 20th .April, '87, and written by Charles Stewart to me. Adjourned sine die to be taken up on one daj's notice, after examination lasting two hours. that gned ty. as yoii Brec- on ly - the nciit. I him ; liail t not njr to iswer e tlic cr or ;t, I ■ voii peciul [ now two lO 20 52 Ma>- 1 6th, 'S9. Exaniiiialion continued in presence ot Messrs. Davis and Latlert>- tur Plaintiff, and Mr. McCarthy for Defendant, at 2 p. m. I have not been able to find an>- letters bearing on the question why the Agreement was not signed in England, except those already mentioned. I learned that the reason why the Agreement was not signed in England was because Mr. Martin wished to substitute a different security than that agreed upon, I learned this partly from Mr. Crookshank, and partly from Mr. Martin himself Negotiations were carried on between me and Mr. Martin, for substituting some other security for that agreed upon in .Agreement, Exhibit " A," mentioned. Q. Do the bond and the two notes show the variation ? A. Mr. Martin first propo.sed to give bills for one half and Mortgage for other half, on the stock of which we were joint owners before the sale took place. Then he proposed, owing to his dealings with the Ranche Co., and finding it inconvenient to give Mortgnge on stock, to substitute some other securit>'. 1 agreed to this, pro\ided I got as good securit)- as that origi- nally provided. Einally he offered, by letter, to give me short dated bills for one half the money, 50 shares in the Quorn Ranch Co., and his bond for ;65000, as security for the other half. I ha\e not a cojjy of letter mentioned in paragraph 12 of my affidavit. I received bond, marked l-:xhibit " B " in my affidavit, early in June, '88. I al.so received promissory notes, viz., the ones sued on. 1 then retained them one being sent to ICngland when due. I never re- turned them to Martin. This note was returned to me from England. It was returneil to me as ni)- propert)'. I never discounted it. The notes provided for the first half of the purcha.se money, and the bond and the shares were for security for the other half I sent the note to England to be presented for payment. The notes are as follows : Ouorn Place, Eoughborough, June 9th, 1888. „' I hree months alter date 1 promise to jjay to James Stewart Moore, or order, two w'J^ thousand five hundred pounds, together with interest thereon, after the rate of £$ pc centum, o I per annum, for value received, ff [SgJ] Cii.\Ki.i:.s VV'M. Martin. pB CJuorn Place, Loughborough, June 9, 1888. .^O CA^ £2 -,00 o7 !^ix months after date I promise to pay to James Stewart Moore, or order, two 3 ui thousand five hundred pounds, together with interest thereon, after the rate of £s per centum, 2; I per annum, lor value received. p. [Sgd.] CiiAKi.Ks VVm. Martin. and are now produced and marked as Exhibits " ii " and "C." I presume that the shares mentioned in Exhibit " B," to my .said affidavit, arc those of the Quorn Ranch Co., but do not know. I sent a cable to Messrs Berridge & Miles. I got an answer. Exhibit "J," to defendant's affidavit, is substantially the correct answer I received. 1 n ■ sent no answer to that cable. Martin at that time promised to send out the share certificates, but did not do so. Q. When you received this bond of Martin's Exhibit " B " to your affidavit, and the notes produced, did you receive those as the obligations Martin was to give you in payment o' your sale to him ? A. Of course I thought the notes would be paid when they became due. I noticed the dates had been left out of the bond, and considering it as an o\crsight I called his attention to it, and he refused to put the dates in, I did not hand back the bond and notes because 1 did no think to do so, or did not think there was any object in doing so, as he was all the time lO saying he was just on the point of paying. Q. Then do you or do you not look to Martin as liable on this bond ? A. I am not competent to decide a legal point. I should like to make him liable, if I could, Q. Do you intend to hold him liable upon that bond, ifyou can do so ? Upon ad\ice of Counsel, witness declines to answer, Q. Are >'ou willing to surrender that bond to Mr. Martin or to his dul>- authorized agent to receive the same ? This question is objected to by Mr. Davis. A. I would do so or not, as I may be ad\ i.sed by m\' legal adviser. 20 Q. VVhy did you send that note for pavnient to ICngland, as mentioned ? A. I thought Mr, Martin was in Kngland at the time and I wished to remind him of his obligations. g. According to your preliminary Agreement, Exhibit " A", the tinal Agreement with Martin was to have been signed in England by Martin and your agent, was it not ? Mr, Davis objects, on the ground that, being an agreement in writing, it speaks for itself. Acting on advice of Council, witness refuses to answer. y. The notes or bills for the fn'st halt were to have been delivered to >-our agent in England, were they not ? if I 54 A. There was nothing more than what was in the various written agreements, and there- fore, on advice of Counsel, I decline to answer. I never recei\ cd any promissory notes or bills of exchange, except those produced, from Mr. Martin on account of this purchase. Q. Were your negotiations with Martin contained finally in the Agreement, dated 19th May, 1888? .\. That is a copy of the Agreement he sent me along with the letter that has been filed. The letter stated that if I accepted that ])roposal, I should sign the Agreement and return it, which I accordingly did, upon receiving a cable that he had mailed bond and notes. And I '^ subsequently received the bond and notes. The notes produced on this examination are the notes sued on, which represent about one half of the purchase money. The other half is secured, I suppose, by the bond and shares. Saturday, May 18th, 1889. Kxaminiition contiiuicvl in presence of Mr. Davis for Plaititiff, and Mr. McCarthy for Defendant. To Mr. Davis : — I recei\ed the cablegram about the shares above referred to, from Ber- ridge i^ Miles, about the 1 ith Januar_\', i8iS9. Q. When speaking, in your examination, why Stewart, your agent, did not sign the for- mal Agreement, you say : — " I do not think he would have signed without getting the notes and 20 security, as that would have been signing away my property, without getting any equivalent." What do )()u mean by that? A. I shouUl perhaps not have used the word pn^pcrty. I suppose he would not have signed any document, unless the conditions with Martin were carried out. It was certainly agreed and understood that after the date the Agreement of 20th November, '86, the property had passed to Martin, lie immediately, after that date, proceeded to exercise ail the rights of ownership. I exercised no controlcrship over that property, what- ever, after 20th November, '86. and in SeptembLM" '87, he made changes in the Ranch, by putting up a variety of buildings, viz. : stables, sheds, &c. I was not consulted at all, nor did I have anything to do at ail with the erection ofthe.se buildings. Between the 20th November, '86, 30 September, '87, Martin made all the arrangement as to the management of the place. Imme- diately after 20th November, '86, he employed John Barter as manager of the place. I was not consulted at ail, in reference to that arrangement by Martin. John Barter was, previous to Novem- ber '86, the manager for Moore and Martin. His .Agreement with Moore and Martin, as manager, expired sometime in October, '86. Moore and Martin never made any new arrangement with Barter, as manager. Between 20th November, '86, and the following summer, Martin sold of the stock, alleged b)- me to have been transferred to Martin, he sold by his agent. Barter, to my " 55 . knowlcdj^e, i stallion to Billj' Sharpies. That stallion was part of the property turned over b)- me to Martin, on 20th November, '86. In summer of '87, Martin delivered to me memo, marked as Exhibit " C " in my affidavit, fdcd herein, shewing that the stock was delivered to him, being a memo promising to pay ^^350 on account of interest on purchase money of Ranch, to me. There was no subseciuent arrangement whereby Martin and I agreed to do away with this ;^350 to be paid as such interest. This memo was given about 13th September, '87, or some time later, at least he agreed to give it then and gave it to me befc^re he left for Knglaml that \-ear. He left that year for Kngland, in October. I undcr.stood that £SS0 ^^'i^ to oe paid me at Calgar)-. I understood it was to be sent to me by check, at Calgar\-. It was to be sent to 'O nic personal!)'. Martin knew I was going to remain living here. The Agreement of May '88, was signed by me conditionally, i. e., to come into force upon m\- receiving the four things mentioned in Martin's letter of March, '88, viz. : I. Counterpart or copy of an Agreement for dissolution of partnership. 3. Two notes of hand, C. VV. Martin to J. S, Moore, for £^3500 each, at 3 and 6 months, respectively from date of his giving me Martin's Agreement. 3. C, VV. Martin's bond for ^'5000. 4. ^"lOO shares in the Quorn Ranche Co., No.s. 1 tu 50, inclusi\e. He did not .send all these things. He never sent a valid bond. He never sent the shares. After receiving this bond I asked him to make it a proper bond, by filling in dates, He did 20 not do .so. He promised las' time on December 13th last, to send the certificates of shares. He has not done so, so far as I am advised. The bond, in its present shape, is no use to me. I am willing to give it up. Q. The last words in your examination in chief, are " the other half " (of the purchase money) " is secured, I suppose, by the bond and shares. What do you mean b)- that ? A. 1 mean they were to have been, under our agreement, secured by the bond and shares. As a matter of fact they have never been secured b)- them, as the)- never have been received. To Mr. McCarthy : — Exhibit " C," contains the whole of the writing on the paper of which the exhibit formed the whole or part, unless the paper now shewn to me, and marked as JO Exhibit " D," was torn off the same. 1 received said Exhibit " C," either at Sheep Creek, or from Martin by letter. Martin said he would send me a check for the money mentioned in said Exhibit "C." He did not say where that cheque would be paid. He would send me a cheque for it, was all he said. =;6 To Mr. Davis :— The letter now shown to me and marked as Exhibit " E," is in the handwritin-; of and signed by the defendant, Martin, and was written to me by him, from the Quorn Ranch, Alberta, and he remained here for about two months after the day of the date of said letter. [Sgd.] James Stewart Moore. [Sgd.] John C. F. Bown, Examiner. EXHIBIT "D." IN PLAINTIFF'S DEPOSITIONS. There is a further sum of $490, which Moore thinks Martin has got and which Martin thinks he has not got. If Martin obtains it, he is of opinion that a clause in original agreement IC Nov. 20, '86, give Moore a claim on him for this sum, in addition to principal and interest as above stated. [Signed.] CHARLES Wm. MartIN. ■lA 5T EXHIBIT "E." IN PLAINTIFF'S DEI'OSriTONS. You will see Barber has not refused to advance on m>' securitj' it is merch' a question of interest. (i.e. rate of discount. ) Thk Ranih, rt'KSDAV Oct. 14, '8S Mv Dkar Mookl. Your messenger has just arrived and is refreshing himself and his horse. 10 Your letter hits the nail on the head, with the exceptioi * one or two details, which I now correct. I can get m)- cheque for ^'e.ooo honoured by the Imperial Bank, if necessary, within six days. I can place an absolute security for the money I owe you, in your hands at 6 hours notice. Furthermore if you ask me to do so, I consider I am bound to. I knew nothing about my 1st bill and its recovery until I got your letter to-day. Barber spoke to me about it last Sunday, when he was out here, I told him that when you got it, I was prepared to meet it with a check. I further heard from my wife that she had a personal interview and also letters from the representative of the Bank of Montreal, in England, and had referred them to Miles who j 20 was in Switzerland for his holidaj-s. A fellow came from somewhere, down to Quorn and dunned her. Now, I think this incident with my Bankers in England and Calgary was un- necessary, and not tending in an>' \va>- to strengthen my credit. I believe I shall be able to! see you and settle our business within 7 days. (Read enclosed to Barber before sticking up! and posting,) it will explain itself, and from Gordon Cummings, he wants to put ^5,000 intoj the Ranch. 1 am obliged by >our offer to extend the time of my bill for 3 months. It is just wha^ I should have expected from you, but I assure you I have not the least idea it is neces.sary, anc would have asked >ou for it if I thought it had been. I did not know where the note was o^ v\ hat had been done about it in England. 30 Of course next mail ma>' bring word that my wife's money is all right, (last advices looked healthy, the opposing counsel asking for further delays and an interview with our man! but you are wrong in supposing I am relying on this to fulfil my obligations to you. I havj 14, '«S whicli I y, within Ts notice. ng about it it last •t it with ters from liles who ! uorn and was un- e able to] icking up] ,,ooo into! just whatj sary, anc e was it advice!! our man| I hav< SB provided other means — write to me by the Thursday's, mail to Okotoks — and say exactly when you must have money — and how much and I will be there — only don't make me make financial sacrifices unnecessarily, that is all I ask. Please send in these letters to the post as soon as you can, one of them is most impor- tant. We are all worn out fightinjj fires — and the night chills have given Baker and me Mon- tana fever. I am dazed with opium and quinine, but I think you will umlerstand me^ — anyhow 1 will see you are not left, or even inconvenienced. Yrs. [Signed.] C. VV. Maktin. y exactly ne make >t impor- me Mon- — anyhow 19 AFFIDAVIT OF J. S. MOORE. I. James Stewart Moore, of the District of Alberta, the above named plaintiff, make oath and say : — 1. That the dates which appear in pencil in the Bond, filed as an exhibit to my affidavit, herein, were pencilled in by me, before I spoke to the defendant about same, and were the dates which I thought should have been filled in, before Bond was executed by defendant. 2. When I received said Bond from defendant none of the said dates, which now appear in pencil, were filled in. SWORN before me, at Calgary, in the 10 District of Alberta, this 27th day of September, 1 889. [Sgd.] Edwin R. Rogers, Clerk of the Court. [Sgd.] James Stewart Moore. iff, make affidavit, were the nt. V appear E. # JUDGMENT Motion to set aside writ and order for service and all proceedings thereon : This action was instituted on two notes as well as for goods sold and delivered in the N. W. T. The material produced shows that the cause of action arose in the N. W. T., and Sec, 28, of Civil Justice, ord. of 1886, gives me the power to grant an order for service out of jurisdiction, under the conditions therein specified. According to the Civ. Just. Ord. of 1 886, there is no necessity of applying to a Judge for an order for the issuing of a writ to be served out of juris- diction, and moreover, if it were the law, I would consider that my order has the effect of 10 amending the writ : therefore, the application is dismissed with costs, and deft, to have ten days to file his defence, if le sees fit, after which period, no such defence being filed, plfT. be at liberty to final judgment against the defendant. [Sgd.] Chas. B. Rouleau. in the lec, 28, liction, is no " juris- fect of n days liberty 61 ORDER DISMISSING MOTION TO SET ASIDE WRIT, &c. Upon reading the defendant's notice of Motion, herein, dated the I2th day of April, A.D. 1889, and upon reading the affidavits, depositions and other material, fyled by both parties hereto, herein, and upon hearing Counsel for both parties, aforesaid ; I do order that the said motion be and the same hereby is dismissed, the defendant to have fifteen days from the date of this order, to fyle his defence, if he sees fit so to do, after which period, if no defence is fyled, the Plaintiff to have liberty to enter final Judgment against the defendant, for the amount of his claim, and costs. And I do further order that all costs of and incidental to the said motion, be costs in the cause to the Plaintiff, in any event. to Dated at Chambers, this 25th day of November, A. D. 1889. [Sgd.] Chas. B. Rouleau, J. S. C. ■<* y of April, A.D. by both parties he defendant to so to do, after idgment against that all costs of I'cnt. S, C. (5a NOTICE or Al'PEAL TAKE NOTICE that the defendant appeals from the order of The Honorable Mr. Justice Rouleau, made in this cause, dated the 25th day of November, A. D. 1 889, and that at the sittings of this Honorable Court, in banc, to be held at Regina, at 10 o'clock in the forenoon, on the 2nd day of June, A. U. 1890, or so soon thereafter as the said Court shall sit in banc, and as Counsel can be heard, a motion will be made on behalf of the defendant, to the Court in banc, by way of appeal from the said order, and re-hearing of the matters in question in the appli- cation in chambers, wherein the said order was made, for an order setting aside or modifying the said order, and setting aside the writ of summons herein, and all subsequent proceedings, on the 10 ground that the learned Judge ought to have made an order setting aside the said writ and all subsequent proceedings, because (1) the said writ, being intended for service out of the jurisdic lion, and having been actually served out of the jurisdiction, and the defendant, at the time of the issue thereof, being known by the plaintiff to be out of the jurisdiction, ought not to have issued, without leave of a Judge or the Court, and was irreguiarl)- issued, without such leave ; (2) The said writ, having been issued and served under the circumstances aforesaid, is irregular in form as a writ for service out of the jurisdiction, (a) in not stating the proper time in which the same was returnable, (b) in not being issued as a concurrent writ, or otherwise, for service out of jurisdiction, and (c) is otherwise irregular in not conforming to the Judicature Ordinance oC 1886, and amenilments thereto. 20 And for an order setting aside or modifying the said order and setting aside the order made herein, dated the 18th tla_\' of January, i88y, authorizing service of the .said writ to be made out of the jurisdiction of this Court, and the service of the said writ made thereunder, and all subsequent proceedings, on the ground that the learned Judge ought to have made an order setting aside the said order for service, and the said service and all subsequent proceedings ; (i) for the reasons set forth as above, as objections to the said writ and the issue thereof; (2) because the affidavit and other mateiial, on which the said order issued, was insufficient, in that the same does not set forth facts and circum.stances sufficiently to enable the Judge to determine whether or not the said order shouki have been made ; (3) because the said affidavit is not can- did, and is misleading ; (4) because the said affidavit and the said other material do not bring 30 the present case within an)- of the provisions of the law authorizing the Judge to allow service of a writ out of the jurisdiction ; (5) because this case is not, in truth and in fact, within any such provisions ; (6) because in view of all the circumstances of the case, the Judge, in the exer- cise of his discretion, ought not, and had he been more fully informed, would not, have made the said order ; and (7) because this Court has no jurisdiction, or no jurisdiction which the Court will exercise, over the causes of acti(jn, sought to be enforced herein. Or for an order modifying the said order, by the insertion therein of a provision making it a term or condition of the said order, that the plaintiff should be bound, and undertake to prove at the trial of this action, that the alleged causes of action, set up in the statement of claim, arose within the jurisdiction of this Court, or are otherwise such that this Court has, properly, jurisdiction in respect thereof, which it will exercise on the grounds, or in view of the facts that the defendant did not reside or carry on business within the jurisdiction of this Court, at the time this action was brought, and that the defendant was served with the writ of summons herein, out of the jurisdiction. Dated this 30th day of November, A. D. 1889. LouGHEED, McCarthy & Beck, Advocates for the Defendant. 10 To T. B. Lafferty, Esquire. Advocate for the Plaintiff. .tement of Zourt has, 'iew of the this Court, r summons Defendant.