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 APPEAL FROM THE COURT OF CHANCERY. 
 
 Between 
 
 SANDFORD FLEMING, 
 
 (Plaintiff-) Respondent; 
 
 AND 
 
 JOHN M McNABB and ALEXANDER McNABB, 
 
 (Defendants) Appellants. 
 
 APPEAL BOOK. 
 
 ROBINSON. O'BRIEN & SCOTT, 
 
 Agents for O'CONNOR & O'CONNOR, 
 
 Appellants Solicitors. 
 
 DENNISTOUN BROS. & HALL, 
 
 Respomisnts Solicitors. 
 
 :-»?*<.;', 
 
 TORONTO: 
 DUDLEY & BURNS, PRINTERS, ii COLBORNE STREET. 
 
 1881. 
 
 ,#l 
 
F?5 
 
 -a,s.r. 
 
 ^O^^ 
 
INDEX, 
 
 Statement of Case .... 
 Pleadings 
 
 Bill of Cumplaint .... 
 
 Answer of John M. McNabh . . 
 
 Answer of Alexander McNabb 
 
 Joiniier .... .... 
 
 Evidence 
 
 Alexander McNabb 
 
 John M. McNalil) .... 
 
 Henry llarraer 
 
 James G. Cooper 
 
 Robert Fleming .... 
 
 Richard Skill 
 
 Defence: 
 
 John M. McNabb, recalled 
 
 Alexander McNabb, recalled 
 
 James T. Connaway 
 
 Robert Fleming, recalled 
 Rebuttal : 
 
 Henry Harmer, recalled 
 
 Exhibits 
 
 Judgment 
 
 Decree .... .... 
 
 Reasons of Appeal 
 
 Reasons Against Appeal 
 
 PAGE. 
 
 4 
 
 7 
 7 
 U 
 
 9 
 16 
 19 
 26 
 28 
 32 
 
 33 
 34 
 35 
 37 
 
 38 
 39 
 54 
 57 
 58 
 60 
 

 ' 
 
 „ V ^' ' Vi. :;„v;:;Trt"7,.T7i'ff,n5:;'!ffffm«si 
 
IN THE COURT OF APPEAL. 
 
 Between 
 
 SANDFORD FLEMING, 
 
 (Plaintijf) Respondent ; 
 
 AilD 
 
 JOHN M. McNABB and ALEXANDER McNABB, 
 
 (Defendants) Appellants. 
 
 Tliis is ail a|)pi!al tVoin the juilginont of the Court of Chancery, setting aside the sale for 
 taxes of certain laiida in the Bill of Complaint mentioneil, and ordering the deed thereof to be 
 delivered up to i)e cancelled. 
 
:i,-ii'i'r:Uir:j; ",:r:'T':-Tre fc- 
 
 ^ 
 
BILL OF COMPLAINT. 
 
 Filed 1884?./^^^^^^^--^-^' — 
 
 ^n (!I^hancevi|. 
 
 Betwkkn 
 
 SANDFORD FLEMING. 
 
 Plaintiff ; 
 
 AND 
 
 JOHN M. MoNABB, and ALEXANDER McNABB, 
 
 Defendants. 
 
 TuWN OF PETKllBtJKOUGH. 
 
 To the Honourahle the Judges of the Court of Chancer 1/. 
 
 Tlie Bill of Cuiiiplaiiit of SiiiKlfonl Fleming, of tlie City of Ottawa, in the County of 
 Carleton, Civil Engineer, sliowotli as follows: — 
 
 1. Tiiat your complainant being the owner of a certain parcel of land immediately adjoin- 
 ing the town plot of the village of Southampton, in the County of Bruce on the South, containing 
 four hundred acres more or less, and being lots numbers fifty -seven, fifty-eight, fifty-nine, and sixty, 
 in the Lake Range of the Township of Sangeen, in the said County of Bruce, in the year one 
 thousaml eight hundreil and seventy-Hv.j, leased the same to one Henry ILarmer, of the said 
 vilhi've of Southampton, for a term of five years, at a certain rental, and by the Indenture of 
 Lease the said Harmer covenanted to pay the taxes on the said land, and after the execution of 
 same, entered upon said land, and worked same as a farmer. 
 
 2. That prior to the leasing oi the said lands as aforesaid, the defendant, Alexander 
 McNabb, who resides within said village of Soutliampton, acted as your complainant's agent to 
 look after the said land, was assessed for said land, as such agent, and paid the taxes on tlie same 
 for some years prior to said year one thousand eight hundred and seventy-six, for, and on behalf 
 of your complainant. 
 
 10 
 
 20 
 
! ■ i 
 
 1 
 
 ai 
 
 L. 
 
3. That after the leasing to tlie said Ilariiier, aa aforesaid, the said defendant, Alexandsr 
 McNabli, still continued to act as agent for your coinpl.iinant, and was considered and treated 
 by your coniplainant and iiis representatives visiting the said land as agent to look after the 
 said land, and was consulted in reference to the same, on your complainant's behalf, up to, and 
 since the sale of the said land for taxes, hereinafter montione<l. 
 
 4. That it was understood that when the said lease was >t ade, that the said Harmer was to 
 have himself assessed as occupant of the said land, as your complainant's tenant, and become 
 responsible ami liable to the Township of Saugecn tlieiefor, and in pursuance of this under- 
 standing the said Harmer applied, as your corn|)laiiiant has lately been informed by him, to the 
 Assessor for the said Township, and to the Municipal Couneil of said Township, to have his 10 
 name entered on the Assessment Roil as such tenant, but the said Assessor and the said Council 
 neglected or refused, as your complainant has lately discovered, to do so, and the said lands have 
 wrongly been assessed as non-resident, although occupied and worked by the said Harmer as a 
 farm. 
 
 5. That your complainant relying on the fact that said Harmer was occupying the said land 
 and trusting to the said Defendant, Alexander McNabb, who also undertook to see that his 
 interest and ownership of tlie saitl lands weie protected, and believing that the said lands had 
 been assessed to him as owner in the year one thousand eight hundred and seventy-four, and 
 would continue to be so assessed, as your complainant alleges it should have been, the Assessor 
 for the said Township, well knowing that he was the owner thereof, neglected to see that the 20 
 taxes were paid on the same, and the said lands were therefore, on tiie seventeenth day of Ueceai- 
 ber, one tbcMisand eight hundred and sevent^'-eight, sold by the Tieasurer of the County of Bruce 
 for arrears of taxes, ami were bid in by William A. McLean, as agent for and under the instruc- 
 tions of the said Alexander McNabb, who was then still acting as youi complainant's agent and 
 was intervening with said sale on your complainant's behalf. 
 
 0. That the said land is very valuable, being wortii from eight thousand dollars to ten 
 thousand dolUr.ii, and the arrears of taxes for which it was sold only amounted to al>out two 
 hundred and twenty dollars, and a very small portion of said laud would have been sufficient to 
 have paid the said arrears of taxes ; and your complainant alli'ges that the said Treasurer should 
 have sold only such smaller portion, and not the whole of said land, and cou .1 have done so at 30 
 said sale, and that the bidders at said sale would have paid the .said ari(!ars of taxes on said land 
 for a smaller ])ortion thereof, if they had not considered and believed that the same was being 
 bou'i'ht in on behalf of i;he said defendant, Alexander McNabb, as your complainant's agent. 
 
 GJ. That the riamtitt" sol 1 and conveyed a part of the said lands to the Wellington, Grey & 
 Bruce Railway in one thousand eight hundred and seventy -six, and they and their lessees, the 
 Great Western Railway, have been in occupation and possession of the said lands so sold to them 
 ever since ; nevertheless the officers of the said municipality assumed to convey the part of the said 
 lands belonging to the said railway by the same conveyance by which they assumed to convey the 
 part of the said lands belonging to your complainant after the aforesaid sale for taxes. 
 
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7. Your complainant allcg(!s, and the fact is, that the amount chargt'd as arrears of taxes for 
 wliich said land was sold, was in excess of tlio amount properly due, and tiiat the sah) was, for 
 that and otlier reasons, illegally and improperly ma<l(!. 
 
 8. There was sufHcietit distress on Uk; saiil lamls durinj^ the term (or which said arrears 
 of taxes are charged for whicli the saicJ lands were sold to satisfy all taxes properly eiiargi-ahlo 
 against the same during that time, and this the ilefetidants and the Collector for the saiil Town- 
 Bhip of Saugeeu well knew and were well awaro that the said land was, during all that time, 
 occupied by the said Uarmer as aforesaid. 
 
 9. That sultsefpiently to said sale, the sai<l defendant, Alexander McNahb, conceiving the 
 idea of keejiing the said land for his own use, entered into an agreement with the said defendant, 10 
 John M. McNahh, wlio is his son, liy which it was arranged tliat the tax deed of the said land 
 should he Uiken out in the name of the said Jolin M. MeNahh, although the purchase was made 
 on behalf of, and the arrears of taxes were paid by, the said defendant, Alexander McNabb, as 
 aforesaid, and the said deed was accordingly issued to the said defendant, John M. McNabb; but 
 your cornj)lainant chargtis H.at he did not pay the suid arrears of taxes and gave no consideration 
 therefor, and th(! arrangement betwi;en the said defendants was n)a<le solely for the purpose of 
 endeavouring to prevent your com[)lainant from recovering the said lauds. 
 
 9J. Since, the filing of this IVill the defendants have b(;gun to cut and remove timber from 
 the said land belonging to the plaintitf, and thereby to depreciate and damage the same, and will 
 continue to do so unless restrained. 20 
 
 Your complainant therefore prays — 
 
 1. That the said sale may be declared ill(!gal and void, and that 
 the said deed to the said dc^fiMidant, John M. McNabb, be delivereil up 
 to be cancelled ; or if the sale should be upheld, that the said John M. 
 McNabb may bo declared to be a trustee of the said lands for the 
 plaintifr,ai;Kl he be ordered to convey the said lands to yourcom[)lainant. 
 
 2. That the defendants, their servants and agents, may be re- 
 strained from cutting and removing any trees or timVjer from the lands 
 in (piestion herein, and may account in value of same alrendy i ut and 
 removed. 30 
 
 3. That your complainant may be paid the costs of this suit. 
 
 4. That such further and other order may be made 
 Lordships may seem meet. 
 
 to your 
 
^j7^ 
 
 ir<r^ 
 
 ANSWER OF DEFENDANT, JOHN M. McNABB. 
 
 The answer of the above-named defendant, John M. McNabb, to the Bill of Complaint of the 
 above-named plaintiff. 
 
 In answrer to the said Bill, I, the said dafendant, John M. McNabb, say as follows : — 
 
 1. I am the son of the defendant, Alexander McNabb, and acting for him, I procured the 
 deed from the Warden and Treasurer of the County of Bruce, conveying the lands in question 
 herein to me to be executed. 
 
 2. The said deed was niado to me only as trustee for my co-defendant, and I now hold 
 the said lands solely as trustee, for the jenefit of ray co-defendant. 
 
 3. I deny that the said deed was taken in my name instead of in the name of my co- 10 
 defendant, for the jiurpose of endeavouring to ])revent the plaintiff from recovering the said 
 lands, as alleged in the ninth paragraph of said Bill, or for any improper purpose whatever. 
 
 4. I am informed, and believe, and charge that the defendant, Alexander McNabb, was not 
 the agent for the jlaintiff, and had not charge of the said land for him, as alleged in the Bill, or 
 otherwise. 
 
 5. I believe and charge that the proceedings connected with the .said sale were lawful and 
 regular, and that the said sale and conveyance made to me are good and valid. 
 
 6. And 1 pray to be hence dismissed with my costs. 
 
 ^^tTI^L 
 
 ANSWER OF DEFENDANT, ALEXANDER McNABB. 20 
 
 The answer of the above-named defendant, Alexander McNabb, to the Bill of Complaint of 
 the above-named plaintiffs. 
 
 In answer to the said Bill, I, the said defendant, Alexander McNabb, say as follows : — 
 
 1. I deny the allegations contained in the second and third paragraphs of said Bill, and I 
 deny that I ever undertook to see that the plaintiff's interest and owiieiship of the said lands 
 were protected as alleged in the fifth patagraph of said Bill. 
 
 2. I admit that the said lands were sold by the Treasurer of the Countj of Bruce for arrears 
 of taxes, on the seventeenth day of December, one thousand eight hundred and seventy-eight, and 
 were purchased for me by William A. McLean, in the said Bill mentioned ; and I duly paid 
 therefor the sum of two hundred and nineteen dollars and fifty-five cents; but I say I was notnQ 
 present at such sale. 
 
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8 
 
 3. On the eighteenth day of December, one thousand eight hundred and seventy-nine, the 
 Baid lands not having been redeemed, the same were, at my request, conveyed by the Warden 
 and Treasurer of said County of Bruce, to my co-defendant, who is my son, but such conveyance 
 was only made to him as a Trustee for me, and he now holds the said lands for my benefit. 
 
 4. The said conveyance was duly registered in the proper Registry Office on the sixth day 
 of January, one thousand eight hundred and eighty. 
 
 5. I deny that said deed was taken in the name of my co-defendant for the purpose of 
 endeavouring to prevent the plaintiff from recovering the said lands, as alleged in the ninth 
 paragraph of said Bill, or for any improper purpose. 
 
 6. I am ignorant of, and deny that there has been anything irregular or improper in the 1® 
 proceedings for the assessment and sale of said lands. 
 
 7. I pray to be hence dismissed with my costs of suit. 
 
 JOINDER. 
 
 The Plaintiff joins issue on the answers of the Defendants. 
 
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EVIDENCE. 
 
 Counsel for plaintiff, J. A. Boyd, Q.C., ami E. H. D. Hall. 
 
 Coiuiscl for defonilants, T Ferguson, Q.C., and H. P. O'Connor. 
 
 Plaintiff puts iu hi.s patent " A,'' 24th March, 74, and also patent, 8th October, 74, "B." 
 
 ALEXANDER McNABB, Ikjendant, sworn fur Plaintiff, testified as follows : 
 
 By Mr. Boyd 
 
 Q. — How long have you owned this land ; these four lots ? A. — Since the time I was Crown 
 Lands' Agent ; I was appointed in '51 ; lots along lake shore ; I don't know them as a block of 
 land, but I know them passing along the lake shore. 
 
 Q. — And you have known Sandford Fluniii g in connection with them as the owner ? A. — 1 10 
 kniiw he had two lots — David, his brother, had two, and that David assigned his right to 
 Sandford ; I heard so. 
 
 Q. — Had you anything to do with paying the taxes at any time on these lots for Fleming ? 
 A. — I wish to explain the evid«!nce I gave before ; tliat is, a matter I have cleared up a little, 
 which is fresh in my memory. 
 
 Q. — Had you anything to do with paying tuxes on any of these lots for Mr. Fleming ? 
 A. — I think I mu.st have paid it some time or other for hiui ; it is so many years ago, that I 
 can't lecollect now. 
 
 Q. — In '74 you paid taxes foi" him ? A. — Yes ; when I was examined before the Master 
 I said I had no recollection of the transacticm ; there was a Tieasurer's receipt, and I could not 20 
 account for it ; and, after going home, I looked up the letters, and I found the way it was paid ; it 
 was a letti/T- fi-uin Mr. Hall, of Peterboro, asking me if I would pay the taxes on these lots and 
 draw upon him for thi- amount. It enclose 1 a letter — Mr. Hall's letter enclosed a letter from 
 Sandford Fleming, asking Mr. Hall to pay the taxes or .settle the taxes, and Hall's letter was 
 asking me if I would settle and draw upon him for the amount ; I believe the taxes were in 
 arrear at that time. 
 
 Q. — Did you get these notices befoie paying the taxes at this time ? A. — I think these 
 must have been enclosed to me by Mr. Hall They are filled up by the Township Clerk ; they 
 are the Township Clerk's writing at the head in both; his name is John Eastwood; he is now 
 dead ; 1 recognize that as hi.s writing (to the notices). 30 
 
 Q. — These, you t!)ink, were sent to you by Mr. Hall ? A. — I think so. 
 
 Q. — Don't you think you got them and sent them to Hall originally ? A. — No, becau.se the 
 letter fiom Fleming to Hall says the}' had been lying en his desk for some time. 
 
 Q. — I see the notices " C " and " D " are made out to Mr. David Fleming, Mr. Alex. 
 McNabb, agent ; you are that person, Alex. McNabb ? A. — Yes; but the man had no authority 
 to put my name. 
 
 Q. — Did you get this receipt for payment of taxes, " E " ? A. — I never saw this before ; it 
 was presented to me at the examination ; it didn't coma to me direct; it was given by Mr. Sproat, 
 the land agent. 
 
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 Q. — Dill you not see it and send it down ? A. — N(j ; there was a letter enclosed, aai near as 
 I recollect, when writinjj Mr. Sproat, (jnclosiiig a letter of Mr. Hall, asking for a rocfipt; it may 
 have cwiiii! to ino direct, hut 1 know I got a letter from Sproat in answer to mine, intimating he 
 had cashed my draft on Mr. Hall and paid the taxes. 
 
 Q. — You have no distinct recollection about this at all ? A. — Till I saw it before me there. 
 
 Q. — It may have come to you, and it may not have come to yon ? A — I think not. 
 
 Q. — You paid the money for wliich "E" is a reci'ipt ? A. — I drew upon Hall. 
 
 Q. — Y'our memory is defective, is it not ? A. — It i.s. 
 
 Q. — That is your signature to " F " ? A. — Yes, 
 
 Q. — Now, on reading that letter, have you any doubt " E " is the receipt which is referred to lo 
 in that letter — Ti-easurer's receipt for S-U.SS? A. — No. 
 
 Q. — Did you interest youiself in recommending tenants to Fleming for these lands < 
 A — Many years ago I might have done so ; yes. 
 
 Q. — I mean about year '7i ? A. — I don't think .so; not so late as that ; it is very hard to 
 recollect. 
 
 Q. — Now, on reading your letter of S jutluimpton, 5th .March, '71', <lo you doubt that 3'ou 
 interested yourself at that time ^ A. — I should think not. 
 
 Q. — You had forgotten that ? A. — Yes. 
 
 Q. — It has left your memory ? A. — Yes. 
 
 Q. — No doubt there was such a person as McNablt — not a fiction ? A. — Oh no. 20 
 
 Q. — Had Fleming any other lots here than tliese fcjur ? A. — Not that I know of. 
 
 Q. — Why did you speak of them as farm lands'? A. — Because they were next the town I 
 suppose ; but thi^y weren't part of village lots. 
 
 Q. — Crops were raised on them? A. — Yes; a large clearing; I couldn't .say how much 
 clearing ; Fleming made some improvements. 
 
 Q. — Recollect anything about circumstance that hay wis cut and rem )ved ofi' the farm lands 
 by Connaway and a man named Wetherall ? Do you rentember any thing aliout the details of 
 that ? A.— No. 
 
 Q. — Did you afterwards collect the money from Mr. Connaway, for Mr. Fleming, for that hay ? 
 A. — There was something, but I can't really recollect. ,30 
 
 Q. — That is your signature to "G"? Yes; letter. Hth August, '74 ; John Eastwood, of 
 Port Elgin, was the Clerk of Townsliip, not Assessor; I think it is with reference m enabling to 
 settle up some money with the bank. 
 
 Q. — Reference was made to you for reason that you iiad knowledge of it, and Eastwood for 
 same reason, that he knew it ? A. — Yes. 
 
 Q. — Reference was made to Harmer ? A. Yes ; I seen him working there. 
 
 Q. — You knew he was a tenant of Fleming's ? A. — Yes. 
 
 Q. — Did you know Harmer yourself ? A. — Very well. 
 
 Q. — That is reason they should write to John Eastwood ? A. — Yes. 
 
 Q. — Why write John Eastwood ? A. — Because he was in a position to be able to find a 40 
 purchaser; he was a man well known. 
 
 Q. — " H " is another letter regarding the same thing ? A. — Yes ; 19th June. 
 
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 Q. — In 741 you jint value of those lots at JSO an aero, are tliey wortli as mucli now ? A. — 
 No; lamls aro ilopreciating a good deal ; it is vory hard to say wlwit tliuy aio woitli now. 
 
 Q. — You waiitud SIOOO tor half i* A. — Yos, at that tinio ; i)ut land has dupreciated Hince. 
 Q — Were they worth $8000 in 75 I A.— *20 an acn; 
 Q._Worth that at leawt ? A.— Yes. 
 
 Q. — You wore proparotl in fact to accept ten acres each and pay tlm taxos, were you not ? A. 
 —Yos. 
 
 Q. — And you instructed your aj,'i'nt who purchaseil to <;o down as low as 10 acres in onlei' 
 to pay the taxes ? A. — Yes, in event of" conipetitiuii. 
 
 Q. — You were willinLj to pay the taxe.4 for 10 acres on each lot ? A — Yes. 
 Q. — What year did Haruier ifo on there ? A. — I couldn't tell you. '0 
 
 Q. — You said in 71' you tlioiij,'ht he was theni f A. — 1 never had any conversation with the 
 man on the suhject till last sunitner 
 Q. — You knew him 1 A. — Yes. 
 
 Q. — And knew he was on the lot? A. — Ytvs ; I saw him working on it. 
 Q. — When you speak in one of your letters of sending one of tho a.ssessiiient notices, do you 
 not refer to these •' V, " and " D." A.— Yes. 
 
 Q— Here is another letter speaking of sending as.sessment iiotici'S ; that is your writing and 
 your signature ? A. — Yes; to K. 4th April, 74. 
 
 Q. — How much clearing was there on these lots? A. — Considerable clearing. 
 Q. — How many acres, speaking roughly' ! A. — 1 couldn't say. 20 
 
 Q, — S(mie bu'lding on them ? A. — I was never on the? farm properly speaking till last sum- 
 mer, and the tenant then had a lean-to to shelter some grain iie was then cutting. 
 Q. — Who was that tenant ? A. — Harmer. 
 
 Q. — You took an ejectment suit against him ? A. — Ye-s : my son did. 
 
 Q. — You are awai'e Harmer had a harn which was liurnt on the place ! A. — I never was 
 on the [)lace. 
 
 Q. — Had you not heard that? A. — I heard that there had been a building burnt, but I 
 did'nt know what it was, whether a huusf or barn, or what it was. 
 Q. — When did fire take place ( A. — I don't know. 
 
 Q. — Was fire before or since sale i A — ^Before. *' 
 
 Letter " L " here put in, 3rd April, '74. 
 
 Q. — Were Parker and Davis adjoining proprietors ? A. — Yes ; they were in the town proper 
 of Southampton. 
 
 Q. — This property is cpiite close to Southam|)ton ? A. — Only a road allowance between. 
 Q. — Was that the arrangement you proposed making with tenants who took the land, that 
 they were to pay taxes ? A. — I suppo:;e so. 
 
 Q. — That was the usual way ? A. — It is the usual way ; it is the way I do myself. 
 Q. — You know the Great Western run through all the lots, don't they ? A. — Yes ; they run 
 through three lots, and just corners one of them — 57. 
 
 Q. — They have taken a piece of that one too? A. — A very .small piece, and they run^Q 
 through the other three. 
 
HI 
 
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 111! i!:!: 
 
 Mil; tii:- 
 
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12 
 
 Another letter (reading it to witness). 
 
 Q. — Tliiit is your Kiynature I HtippoHu ? A — Yos ; to " M," I2tli Fobniary, 74. 
 
 Q. -It mint Imvo lioen in Fohniary '71' tlio C()iii|>aiiy wero |Mittiiig their road through thoro 
 apparently. A. — Yes. 
 
 Q. — I see a great many references in youi' letters to Mr. Sproat, is he a relative of yours f 
 A. — Yes; 1 think he was .)ho fit' the first tiirectors: beforo the company joineil th(! Great West- 
 ern, one of the old Wellington, (Jrcy and Bruce direetors. 
 
 Q. — The Wellington, Grey and liiuce took the road and th(! Gi(!at Wistern leased from 
 them ? A.— Yes. 
 
 Q. — This roa('. cuts up tl-.reo lots pretty hadly I should .judge from your letter ? A. — Yos, l^ 
 
 Q. — Do you recognize this map " N," as the lie of the lots and the way the railway cuts 
 them ? A. — Yes. 
 
 Q, — Where is tht; ch'aring ? A. — There is e,ood improvement on ')7; and 1 saw the clearing 
 where they ran through M) and .')9. 
 
 Q. — How many years has Harmer heen th»;re / A. — 1 don't know, I never saw the lease. 
 
 Q. — You know of his heing there in '"4 ? A. — Yes. 
 
 Q. — Ife was tlnuv and you had to eject him after your ta.x' sale ? A. — Yts. 
 
 Q. — You knew he had a lease .' A. — I heard so. 
 
 Q. — You heard of it before the sale ? A. — Yes. 
 
 Q, — Who is " Wetherald." A. — A baker in Soiitlampton at tht; time. 20 
 
 Q. — Reinend.)er Hull condng to see yon utter the tax sah; and before you had got yoiu' tax 
 deed. A. — Yes ; he wius driven u|) to fmnt of house i)y Mr. llurmer. 
 
 Q. — Hall is a relative of Fleming's.' A. — Yes. 
 
 Q. — He was acting for him in the matter ? A. — Yes. 
 
 Q. — He was sheriff of Peterboro wasn't he; that is Mr, Hall ? A. — At onetime. 
 
 Q. — Anil was he then acting in Fleming's interest in coming to si.'e yt>u ? I understood he 
 came to see ine not about the 'und. 
 
 Q. — Was he acting in Fleming's interest at the time he came to .see you ? A, — 1 understooil 
 
 HO. 
 
 Q. — Had he any talk with you about the land? A. — Nothing more than he .said ho'^^ 
 had made .some arrangement with Mr. Harmer about building a barn. 
 
 Q. — Did he ask you anything about Harmer.^ A. — No. 
 
 Q. — What further occurred between you / A. — I tell you what he eume to see me about 
 was a matter connected with a former loan that I had. 
 
 Q. — What was the conversation about this land ( A.- — Nothing .-tbout the land. 
 
 Q, — Excepting he told you he had made a fresh arrangenient with Harmer about building a 
 new barn ? A. — Yes. 
 
 Q. — The barn had been burnt down at that time ? A. — ^'es. 1 remember that I considered 
 Harmer was doing very well, judging from the improven.e'its he had made on the lot. 
 
 Q. — You thought Harmer was doing very well, and was a good tenant ? A. — Yes, ^0 
 
 Q. — And you told that to Mr. Hall too ? A. — Yes. 
 
 Q. — But you didn't tell Mr. Hall that the land had been sold for taxes ? A. — No. 
 
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 ;: II !Mi. 
 
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 Mi¥ 
 
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 ^if 
 
■»1|V»W.WI|^1|SIPI|PI^P 
 
 13 
 
 Q. — Why? A. — I don't see wh}' I should have told liiin. 
 
 Q. — Why didn't you tell him ? A. — Becau-.e I considered that it ivas a matter of my own ; 
 that it was my son's, because it was them altogetlier that boiiglit it, in one sense, as I explained 
 before that the money was not uiy own. 
 
 Q. — You didn't tell him at ail events ? A. — I didn't 
 
 Q, — You know he would have paid the taxes at once, if he liad kiKnvn there woukl be a 
 Hale? He wouldn't have let this $8,000 property' be sacrificed for l#200 ? A, — I presume not, 
 
 Q — You were afraid you might be redeemed if you told ? A. — Yes. 
 
 Q. — You knew that Haruier who was with him, was the man wlioshoidd have paid the taxe.s ; 
 being tenant it was his business to pay the taxes ? A. — I may have supp >sed so ; but I couldn't 
 say so witliout seeing the lease. 
 
 Q. — It was your belief tliat Harmer was the man to pay the taxes ? A. — Yes. '•' 
 
 Q — Ifc was your belief then tiiat Harmer siiimld have ])aid tlie taxes ? A. — I don't know 
 that I did, he told me afterwards tluit. lie hiuln't to pay the taxes. 
 
 Q. — What was your ludii'f at th...c time.^ A. — I supposed that was the way h( held it. 
 
 Q. — It was your belief and opinion tlien that Haimer was the person to pi.y the taxes ? 
 A. — I supposed that was the way he held it. 
 
 Q. — And yet you told Hall, Harmer was doing very well, and a very good ten i -./? A. — 1 
 don't know as I used the word ''good tenant." 1 just .said one word, that he was ioing well ; 
 meaning from that, that he was making good improvements. 
 
 Q. — You knew Harmer was a tenant tiiere. and you knew his barn had been burnt down ? 
 A.-N0. 20 
 
 Q. — They were telling you he had made arrangen<ents to build a new barn ? A. — He told 
 me he had made .some arrangement with him to build a new barn ? 
 
 Q. — You knew the i)arn had been burnt down ? A. — V'es. I don't know about that barn 
 being burnt ; I can't say ; I never .saw that bain. 
 
 Q. — Without knowing the barn was burnt down ; you merely knew they were going to 
 build a fresh barn ? A. — A new barn. 
 
 Q. — Had you not heard the other barn was burnt down ? A. — I have no recollecticm of that 
 barn burning down until very lately. 
 
 Q. — You reconnnended Harmer then as a good tenant ? A. — No, I did not. I merely said 
 that he was doing well ; ihat is judging from the improvements he was making on the front of 
 the lot ; passing by there fiequently. 
 
 Q. — But he was doing very ill in not paying the taxes ? A. — I don't kiu)w who was to pay 
 the taxes ; I wouldn't .say positively he was to pay tiio taxes ; because he told me afterwards he 
 wasn't to pay the taxes. 
 
 By Coukt. 
 
 Q. — You understood at that time that Harmer was to pay taxes, and that it was a term of 
 his holding that he was to pay them ? A. — I never saw the lease, so I don't know ; but I suppose 
 that would be the way he held the land. 
 
 Q, — What time was that you saw Hall up there? A. — Sometime in '78 ; in September ^q 
 sometime. 
 
 30 
 

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 m 
 
 iiiii, 
 
 liii; 
 
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 ill; 
 
u 
 
 Q. — Harmer was there at the time witli Mr. Hall ? A. — Yes he was driving him. 
 
 Q. — You knew the barn of course was to provide for that years' crops I sujipose ? A. — I 
 suppose so ; I don't know what barn they niaile. 
 
 Q. — What croj)8 did Harmer |)ro<luee on tliat place besides hay ? A. — Wlien I saw it, he 
 had wheat ; that was last summer ; I didn't see him in '79. 
 
 Q. — Did you know anything about this land b<'ing assessed as icsilent land before '74 ? 
 A. — I know it now from having got a ceitificate from the clerk; but I didn't know it then; I 
 have found out since. 
 
 Q. — When did you know tliat it was assessed as resident laml ? A. — When 1 got a certi- 
 ficate from the clerk. 10 
 
 Q. — Was that before or after the sale ? A. — Lately. 
 
 Q. — You say it was well known in tlie neigbbourhodd that Harmer was occupying the land ; 
 that is the ftict is it not ? A. — It was well known in our village. 
 
 Q. — That is the neighbourhood of the place ? A. — Yes. 
 
 Q. — The land was known as " Burnt Cormrs " or Fleming's land ? A. — Yes. 
 
 Q. — Why calle<l " Burnt Corners ? " A.— The land was very low and swampy; and in early 
 days of settlement it took fire and burnt all around there : it was cedar. 
 
 Q. — Wliat is assessor's name ? A. — William Murker. 
 
 Q. — He is dead, I believe? A. — Yes. 
 
 Q. — You knew Mr. Hall was the person to i)ay the taxes, did you txjt ? A. — No, only from 20 
 what Harmer told me last summer. 
 
 Lease put in admitted " O " dated 2nd Ajiril, '75, Fleming to Harmer. 
 
 Q. — Now did Hall tell you lie was arranging for a fresh lea.se with Harmer ? A. — He didn't 
 speak about a fresh lease, only he said about a barn. 
 
 Q. — When examined before, you spoke about this, " he told me he had given Harmer a fresh 
 lease ; " you had forgotten that? I had forgotten that, yes. 
 
 Q. — And that Haimci- was to put up a new barn to costS200 ? A. — Yes. 
 
 Q. — You told him Harmer was getting along well ? A.— As they were going away ; driving 
 away, I just made the remark, tliat he had done well, judging from the improvements he had made. 
 
 Q. — But did you tell him that? A. — I told bim that. 30 
 
 Q. — That you judged Harmer was getting along well because of tlie improvements ? A. — 
 No. 
 
 Q. — You said simply that Harmer was getting aU)ng well ? A — Yes. 
 
 Q. — And your reason for saying that was judging from improvements you had seen ? A. — 
 Judging from improvements I had seen on the road. 
 
 Q. — Cunningham, I understand, has left your farm and is living in the village ? Remem- 
 ber Cunningham being there ? A. — Yes ; Cunningham was brought up by Fleming and placed 
 upon the land. 
 
 Q. — Did Cunningham commence to improve and clear as early as 62 ? A. — I suppose so. 
 They were brought up there shortly after they got the land. 40 
 
 Q — Did you conclude this matter and make an arrangement with Mr. Smith ? A. — I can't 
 remember from 'G6. 
 
I . r 
 
 
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 I 
 
 
 
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15 
 
 Q. — As I judge from this " Q," improvements were going on, clearing up and so on durinif 
 all these years ? A. — Yes. 
 
 Q. — You can't give me any estimate of the aggregate of the clearing ? A. — No, I never was 
 on the place 
 
 Q. — Remember getting a letter from Mr. Hall ? A. — Yoa. 
 
 Q. — And was this " R," the answer you sent ? A. — Yes ; 10th July, '80. 
 
 Q— You rather repudiated the idea then that you were the owner — it was your son ? A. — 
 He came out to my son. 
 
 Q. — But now you have everything t(j say in the matter, haven't you ? A. — No. 
 
 Q. — Your son is trustee for you isn't he ? A. — No. 
 
 Q. — He holds for you ? A. — He holds the land in his own name. 10 
 
 Q. — But we started this case with the idea that your son had no interest in this land — that 
 it was you had all the leal intensL ? A. — I iound it was going to be business I couldn't attend 
 to, and I gave it and allowed the tax deed to i.ssne to hi 
 
 m. 
 
 Q. — This " S " is the letter, and I suppose your son consulted you before writing, did he ? 
 A.— Yes. 
 
 By Couht — You knew the answer your son was giving ? A. — Ye . 
 
 By Mr. Ferguson : 
 
 Q. — You said in a way that you paid tlie taxes for '7n, and you mentioned to my learned _- 
 friend that you got a letter from Mr Hall, is that " T," the letter ? A. — Tliis is the letter. 
 
 Q.— And is that the enclosure " N " ? A— Yes. 
 
 Q. — Do you know what that " enclosed " was in the letter Fleming to Hall, or did anything 
 come in Hall's letter besides that ? A. — Unless it was little slips giving the amount of the taxes 
 to pay. 
 
 Q. — These have been already put in ? A. — I think so. 
 
 Q. — You tohl my learned friend you i)aid the taxes in '75, pursuant to tiie little slipt and 
 those letters that I have now put in ? A. — Yes. 
 
 Q. — Did you actually pay the money yourself, ot how was it done 1 A. — Doue by draft 
 through Mr. Sproat on Walkerton. My draft on Mr. Hall. I drew ou Hall through the Bank 30 
 agent Mr. Sproat here, and I think I received a reply fi'om Sproat saying it was all right and 
 honored. 
 
 Q. — Is that " V" what you received iVom Sproat / A. — Yes. 
 
 Q. — Now after that transaction of '75, had you any communication with Mr. Hall or Mr* 
 Fleming about this land for a long series of years ? A. — No; not that I am aware of; there 
 might have been some correspondence with David Fleming about two of the lands, but I can't 
 recollect it. 
 
 Q. — Is that the Mr. Fleming with whom you had such large transactions — endorsements ? 
 A.— Yes. 
 
 Q. — Do you remember seeing that " W" ? A. — Yes ; ' ^his is a letter 1 received from Mr. 
 Hall, dated 8th Julv, '80. *^ 
 
! 
 
 I 
 
 t ; 
 ( 
 
 
 'l! 
 
 I '■ i 
 
 :i!i \m 
 
IG 
 
 Q. — Do you kijow letter " X " ? A. — Yes ; it was handed to me by younrj Mr. Fleming — a 
 sou of Sandford Fleming, dated 17th June, '.SO. 
 
 Q. — It was delivered to you b}' whom ? A. — By young Mr. Fleming. 
 
 Q. — Is he P^ank Fleming ? A. — I can't say. 
 
 Q —Whose is this letter " Y " ? A.— Mr. Sandford Fleming's, dated 2lst October, '74. 
 
 Q. — You wrote a letter to David Flen)ing in ivgard to tiie transaction, di<ln't you ? A. — Yes. 
 
 Q. — And it is mentioned in tliat letter of Mr. Sandford Fleming's ? A. — Yes. 
 
 Q. — Now fnmi the time you received tl)is lettfr — last letter — did you do any business of 
 any kind for Mr. Sandford Fleming, or look after any property for him ? A. — No. 
 
 Q, — You weren't, as I understand, persc/ii.Jly present at tiie sale of these lands for taxes ? lO 
 A.— No. 
 
 Q. — I understand Mr. Maclean made the purchase for you ? A. — I wrote him asking him to 
 buy them for me. 
 
 Q. — Did you give any instructions to Mr. Maclean that were in writing ? A. — A letter to 
 him; it is usual either to buy a whole or portion. 
 
 Q. — You weren't at the sale yourself? A. — I wasn't at the sale. 
 
 By Mr. Boyd : 
 
 Q. — I think you told me you instructed Mr. Maclean that j'ou were willing to take 10 acroa 
 of each lot ; he bid down to 10 acres, and to pay the ta.\es for that } A. — Yes. 
 
 Q. — You didn't e.xpect any such good luck as to get the whole lands ? A. — We didn't. 
 
 Q, — What trees have you been cutting on this 400 acres ; you have been cutting some, I 
 understand ? A. — No, I have not. 
 
 Q. — Some persons with your authority ? A. — My son gave permission to a man to go and 
 cut some ties. 
 
 Q. — Know how much has been cut t A. — I couldn't say. 
 
 Q. — But some timber has been cut ? A. — Yes. 
 
 Q. — Over 200 ties cut ? A. — I can't say. 
 
 Q. — Character of the timber ? A. — Cedar. 
 
 Q. — Your instructions to Maclean were to buy these lands; it was this land you were want- 
 ing him to buy ? A. — Yes. „a 
 
 By Mr. Ferguson : 
 
 Q. — Are these the instructions, " Z," you gave to Mr. Maclean ; these are the very papers, 
 are they ? A. — Yes. 
 
 By Mr. Boyd : 
 
 Q. — Why didn't you wish to be known in thio matter — " I don't want to be known " ? 
 A. — I don't suppose that if it were known the parties would have communicated it to me ; I don't 
 know any reason for it. 
 
 Q. — You can't imagine any reason why you didn't want to be known ? A. — No, 1 can't. 
 
 John M. McNabb, sworn for Plaintiff, testified as follows : 
 
p 11* 
 
 :ili iiiii 
 
17 
 
 By Mn. Boyd. 
 
 Q — Thi! tax deed was taken out in your name, I believe ? A. — It was. 
 
 Q. — It i.s in your name still ? A. — Yes. 
 
 Q — Since then you have commenced an action to eject Haituer ? A. — I did after I had ha<l 
 the deed. 
 
 Q. — Did you eject him ? A. — I did. 
 
 Q. — What cro|)s did Harmer raise there to your iinowledge ? A. — I wuh never on the land 
 but twice ; lie raised hay, some oats and wheat, and vvliat I saw on the road wtus potatoes too. 
 
 Q. — Al)()iit how much was cleared on the land ? A. — I couldn't say. 
 
 Q, — It was well known that Harmer was ill possession, occui)ati(m of the land ? A. — Around 
 Southampton it was. 
 
 Q. — It was well known ? A — Yes. 
 
 Q. — You knew at all events he had been growing ci'ops on the land for the last five yeai-s ? 
 A.— Yes. 
 
 Q. — That he was there as tenant of Mr. Fleming ? A. — I understood so. 
 
 Q. — Did you hear of the barn being burnt ? A. — I have no recollection of the barn being 
 burnt, I know nothing about that. 
 
 Q. — Why wasn't the land assessed to Harmer as the occupant ? Did you make any inquiries 
 about that ? A. — Aftei I had got the Deeil I had a conversation witli Harmer, and he told me 
 he had not to pay the taxes. 
 
 Q — Did you make any inquiries why the land was not as.ses.sed to Harniur ? Did you know 20 
 for instance up t ■ '74, including 74, the land had been as,sess(3d as resident ? A. — 1 didn't know ; 
 since then I have found out. 
 
 Q, — Tnat the land n\) to '74 inclusive was a-sscssed as resident land ? A. — Yes, 
 
 Q. — I)i I yuu make any inquiries to find out why it was not asses.sed as resident while Harmer 
 was there ? A. — Since 1 got the Deed I have, but not before. 
 
 Q. — But you knew Harmer was oci:apying it before you got the Deed ? A. — To the best of 
 my knowledge, yes I did. 
 
 Q. — Did you s|)eak to the assessor or collector ab(mt it ? A. — I spoke to the assessor. 
 
 Q. — You knew Harmer was there growing cops ? He told you so di<l he not ? A. — He told 
 me it was non-resident and he had notldng to do with it. " 
 
 Q. — Did you not know Harmer was there and growing crops ? A. — Nobody told me. 
 
 Q. — The evidence here is that a man told you that thostuli" Hirmer would grow on the place 
 would be taken off" before collector would come round ? A. — It was in reference to what was in 
 the ground. 
 
 Q. — It is your evidence I am reading from, that you were told the asses.sor said the stuff 
 Harmer would grow on the jrround would be taken off bePjie the colloctor would come around ? 
 So that the a.s8e.ssor knew Harmer was growing stutf there ? A. — Yes. 
 
 Q. — Who is present assessor } A. — Trapple. 
 
 Q. — When appointed ? A. — 1 couldn't tell you ? 
 
 Q. — Was it before the sale ? A. — Since the sale. ^ 
 
 Q. — Who was the assessor before Trapple ? A. — Murker I understand. 
 
MM' M 
 
 
18 
 
 Q. — Where did Trappio live ? A. — Township of Saiigeon. 
 
 Q. — And Murker lived ? A — At Saujjeeii. 
 
 Q. — When did Murker die ? A. — I couldn't tell you ; I only undorHtood within a short time 
 that ho was dead. 
 
 Q. — And you understood as I see tVoui your evidence, that the reason that Hanner was not 
 assessed, was that the crops would he taken oH" befoie the collector would couiearoun<l ? A. — Yes. 
 
 By Court. 
 
 Q. — That is yon understood lately ? A. — Lately. 
 
 Q. — Which assessor was that ? A. — Tiapple. 
 
 Q. — You knew Harnierhad crops of hay on this land ? A. — I tlid from passing it. 
 
 Q. — And that he stored it U]) on the land and kept it there? A. — [ don't know where he 
 kept it. 
 
 Q. — You know that he had a place to keep and stow hay ( A. — I saw it when I went in 
 last suninier. 
 
 Q. — You knew he had cattle on the land ? A. — Mertily from hearsay. 
 
 Q. — You knew the Great Western ran through his land ? A. — Yes. 
 
 Q. — How much land is taken up by the Great Western ? A. — I couldn't say. 
 
 Q — About how much ; .seven or eight acres? A. — I should judge about five. 
 
 Q. — These lots are all fenced ? A. — All the 400 acres are enclosed by a fence. 
 
 Q. — Not all around it ? A. — In front they are. 
 
 Q — Do you not know that they are fenced all around it; or do you know? A. — I do 
 not know. 
 
 10 
 
 20 
 
 By Court. 
 
 Q. — Would they be fenced on lake side ? A. — No, there is a fence along the front, and on the 
 sides, and along the railway track. 
 
 Q. — Except along lake shore, isn't the whole block 400 acres enchwed by a fence ? A. — I 
 couldn't say, because I was only twice in my life over the place. 
 
 Q. — Along all the boundary that you have there is a fence i With the exception of the lake 
 shore, I should say so. 
 
 Q. — The railway part is fenced from the other / A. — Yes. 
 
 Q. — When was that fence put there ; at the time the railway took it ? A. — I should say so, 
 in '73. 
 
 Q. — When did the railway take |)Ossession ? A. — The railway commenced runnitig in '72, 
 and I should judge it was bought about that time; the fall of '72. 
 
 By Mr. Ferguson. 
 
 30 
 
 Q. — Had you ever any conversation with Harmer as to who was to pay the taxes ? 
 A. — After the sale. 
 
i 
 
 T ^< . ■> 
 
10 
 
 HENKY HARMER. Rworn for Plaintiff, tostlfio.1 a« follows : 
 
 By Mk. Bovi). 
 
 Q. — You weio the tenant of this Innd I Ih-IIuvi; ? A. — Yes. 
 
 Q. — 1)1(1 you take it first wlicn tliiH liaso was niadi- ? A. — YeH, I took it tin* fii«t year. 
 Q. — In 75 ? A. — I wnH kei-pinj^ hioic at tho tiuit'. 
 Q. — Your tiist taking of it was in 7.') was it < A. — Yoh, 
 
 Q. — Did you occupy it from that time on until tliis action of cjt'ctinont wuh brought agaiiiHt 
 you ? A. — Yi'H. 
 
 Q. — And that was lnought \<y Mr John JlcNalili alttr the Tax Deed? A. — Yes; eighteen 
 months or more afterwards. 
 
 Q. — What clearings was there on the place ? A. — Ahout sevent^-tive acres. 
 Q. — Was then; a part of that on each lot < A. — Yes, some clearance on each lot. 
 Q. — What crops did yon raise tliere fioni that year ? A. — Sonidiines I had nine or eight 
 acres of wheat ; ten or twelve acres of oats, and two or tiiree rows of potat(jes, and sometimes a 
 lot of hay. 
 
 Q. — Every year you had crops ? A — Every year except the first yc-ar. I didn't get mnch 
 the first year. I couldn't get on to the place. 
 
 tj. — But '7<i, '77 and iH you had those crojjs you speak of? A. — Yes. 
 
 Q. — Had buildings I supjuise ? A. — No buildings when I took it except some log shanty 
 down in the bush, and a .stable ; and then I took and built u barn about GO feet long and 30 feet 
 wide — a post barn — fiame barn. 20 
 
 Q. — What became of that barn ? A. — It got on fire ami wa.s burnt down. 
 Q. — When ? A. — About the third year that I was on it. 1 have had two threshings since 
 that barn was burnt. 
 
 Q. — Some time in 7H it was burnt ? A. — Yes. 
 
 Q. — The same year that the tax sale took place, and the tax sale took place in 78, Decem- 
 ber ? A. — I have had two threshings since. 
 
 Q. — It would be in '78 then ? A. — Yes ; I guess that would be the time. 
 Q. — Did you do the fencing, or was the fence there before ? A. — I fenceil the lot. 
 Q. — What land is taken up by the track there > A. — A little over half a mile, and 100 
 feet wide. 
 
 Q. — You don't know the acreage ? A. — No. 
 
 Q — It is j)lain im the land, however, that the track is there and fenced oft"? A. — Yea, it is 
 fenced off. 
 
 Q. — And a part of each lot is taken a.s we have heard ? A. — It goes through three lots, but 
 only goes on the corner of one lot ; it goes through four Iota. 
 Q.- -On which lot was your barn ? A. — Lot 59. 
 
 Q. — Was it towards the Goderich lot or towards the other end of the lot ? A. — Nearly half 
 way down. 
 
 Q. — Where was the clearing — about the centre of the lot ? A. — Yes, and in '67 aa marked, 
 and then I have got some clearing too on Lot 60. 40 
 
 Q. — McNabbs knew too, didn't they ? A. — Yes, often talked to me. 
 
 30 
 
ii mm 
 
 I HI i^m. 
 
20 
 
 Q. — Tliey knew you were living on this place, occui>ying it ? A. — Well, I wasn't occupy- 
 ing it. 
 
 Q. — You lived on another place ? A. — Soutliampton. 
 
 Q. — But you were tanning tliis^ every year ? A. — Yes. 
 
 Q. — Had you cattle on it } A. — Yes. 
 
 Q. — Did you keep cattle during the winter } A. — 1 ke])t them all the winter ; 1 had two 
 horses all the time, and a paif ot bnlloeks I gave §7o fur — they were on all the time. 
 
 Q. — Summer and winter you had cattle on ? A. — Most all the time — I kept pigs up there 
 — pigs and stutt' up there all the winter ; but the place got burnt down and I didn't keep tlie 
 biggest part till afterwards. 10 
 
 Q. — Did you keep hay there all the time ? A. — All the time ; I never took a stack away 
 only just as 1 wanted to use it. 
 
 Q. — That was nttt wild hay, but hay you grew from the crop ? A. — Good timothy hay. 
 
 (^. — Were you there when Hall came up to see Mr. McNabb, between the time of the sale 
 and the deed '. A. — Yes, he came to my place and I drove liim up to this farm and showed him 
 out, and then he wanted to go art>nnd and see Mr. MuNabb, and I drove hi.. uul. 
 
 Q. — Did you kujw the land had been sold foi- taxes ? A. — No, or I wounl have told hirn 
 about it. 
 
 Q. — You drove Hall up to McNabb's place ? A. — Yes, and he went in and sat there some 
 little time, and he came out, and we were there together talking, and Hall aske'l liim how I 
 was getting along, and he ,sai<l I was getting along first-rate ; and lie siid h^ was going to driw 
 out a fresh lease or something for me, because I had been telling him my lease was not di'awn 
 out right. I only got $05 fur clearings. I was telling him about this, and he said that would 
 not be so any more, and he would draw a fresh lease. 
 
 Q. — What other talk was there between Hall and McNalil) ? A. — Just talk about like that 
 but I cannot remember the words. 
 
 Q. — Was anything said about a barn ? A. — Yes, I was to have S200 to build a barn, be- 
 cause I got mine burnt down. 
 
 Q. — That was spoken of then ? A — Yes. 
 
 Q. — What did MeNal)b say when he asked how you were getting along } A. — He said I was 
 getting along first-j-ate. 
 
 Q. — You didn't know anything, or suspect anything about the land being sold to McNabb 
 for taxes ? A. — No, not the least in the world. Never knew nothing until Mr. Fleming 
 came up. 
 
 Q. — Did you take steps to let it be known that you were occupying the land, to the Council 
 or any one else ? A. — I went down to Saugeen Council and wanted then, to open this read 
 down south, and they would do nothing for me. 
 
 Q. — To the lake shore ? A. — This roail allowance between Lot GO and the Government 
 Reserve. I wanted it opened down to the burnt corner on 60. 
 
 Q. — Was that in 75 ? A. — No, I think in 70. I think Connaway wrote them two or 
 three times and they would not do it ; and he wrote me a letter, and I took it down and told 
 them I wanted the part opened up from the track down to the Goderich Road. I think it was 
 the Town Clerk ; I didn't know the man, and he asked me whether I wa.s assessed on it yet» 
 
 20 
 
 30 
 
t : ■! 
 
 i ' 
 
 !!5..t; 
 
 ■i m. 
 
 
 
 :i 'iifei;: 
 
 Ml.- 1) iiC':' 
 
 
 ,|i i| Wi 
 
 I 
 
 
10 
 
 21 
 
 and I says no, I am not assessed on it, and I says I have got to pay the taxes if you assess me 
 on it, but 1 will get the money hack. It was before the Reeve and all the Council. They were 
 sitting; I went to them there ; Mr. Connaway gave me a letter to take down, stating I would do 
 half the road if I could get the Township to do half. I wanted them to lay out statute labour 
 and Reeve was willing, bu - Council would do nothing for me, 
 
 [This evidence taken .subject to objeetion.] 
 
 Q — But your .saying to Township Clerk and his asking you if you liad been assessed yet? 
 Was that in pre.senee of Council ? A. — Yes; tliey were all sitting around a little tal)le together. 
 
 By Mr. Fkuguson. 
 
 Q. — Was it within hearing of Council ? A. — Yes. 
 
 Bv Mr. Bo yd. 
 
 Q. — The Township Clerk askeil if you had been assessed yet for the land ? A. — When I 
 told him I had leased the land for five yeais, he asked me then whether I had been a,ssessed for 
 it, and I sa^'s no, I have not lieen assessed, and I told I was to pay taxes, and if they assessed 
 me for it I would get my in<mey back by taking receipt for taxes. 
 
 [This evidence taken subject to objection] 
 
 I just went down to tell them I had taken the place, and I wanted them to let me hiy out 
 statute labor ; the Council would not, but the Reeve .said he didn't see why a mrtn couldn't get 20 
 statute labor allowed on it. 
 
 Q. — You knew you couldn't do statute labor there in shape of work unless you were assessed ? 
 A. — No, certaiidy ; I wanted them t) do that ; J didn't know what the}' were going to as.se.ss me 
 afterwards. 
 
 Q. — You wished to be in a position there for the purpose of having statute labor done by 
 you on this piece of road ? A. — Ye.s, that is what I went for, and mostly to get the road opened. 
 
 Q — And the Town.ship Clerk asked you if you had been assessed yet .'' A. — Yes, and I told 
 him I hadn't. 
 
 Q. — You told him what ariaugement you had made about this lease ? A. — Yes, I told them 
 everything, the particular, because 1 had got the lease in my pocket. 
 
 Q. — Do you know of timber being cut on that land by McNabbs or by some person ? 
 A. — Yes: some men cutting ties around there, taking thera out, and I thought my lease, on run- 
 ning out I would look after the place myself 
 
 Q. — When was it you saw them cutting theie ? A — Last winter ; all ahmg the winter. 
 
 Q. — You mean winter of '81 ? A. — Yes. 
 
 Q. — Until when were they going on cutting ? A. — I .see some teams fetching timber out 
 here the other day again : two loads away last week ; the McNabbs ; I was down there, and saw 
 them and plenty of other people. 
 
 Q. — How many trees were cut by them ? A. — I counted 207 ties ; 1 didn't know who 
 ordered them to go on there to cut it, and he said ho had only cut 206, and 1 said I counted 207, 40 
 and he said — well, Mr. McNabb, he said, had given him leave. 
 
 30 
 
22 
 
 Q — When was this ? A. — In winter, before Christmas. T think. 
 
 Q. — Cedar ties, are they ? A. — Cedar ties. 
 
 Q. — How many lies would come out of a tree? A, — Sometimes two, three or four ; larger 
 trees go four very often. 
 
 Q. — There must lie at least 50 to 100 trees cut then ? A. — Yes, quite that. 
 
 Q, — Have any other varieties of trees been cut exce{)t cedars ? A. — Those on the waggon 
 with him were either balsam or tamarack ; I wasn't near enough to them. 
 
 Q. — To what extent has the lot been damaged by this cutting ? A. — I could not say ; there 
 have been people cutting about a good deal. 
 
 Q. — And there is danger of tire too on account of the cutting ? A. — Where people have been 10 
 cutting trees down and leaving chips; that is how people are burnt out ; the tire canie through 
 inv bush and took the barn, and across the railway and took the fences down. 
 
 Q, — Would you say in figures to what extent the farm has been damageil ? A, — I wouldn't 
 like to s&y. 
 
 By Mr. Ferguson : 
 
 Q. — Have any trees been cut down l)y either of the Mr. McNabb's since 2nd March last? 
 A. — I don't know whether it was John Donald. 
 
 Q. — Has timber been cut down ? A. — Yes. 
 
 Q. — Wasn't it you cut down this ? A. — No ; I cut some hemlock down to make a barn. 
 
 Q. — Was there a .seizure of timber you cut ? A. — There has been some firewood; two or9Q 
 three cords. 
 
 Q. — Are you prepar-ed to swear that either of the McNabbs cut any tr-ees down since the 
 2nd March ? A.— No. 
 
 Q. — Who did ? A. — John Donald — another man, a brickmaker tiiere. 
 
 Q. — Has the cutting been done since the 2nd of March ? A. — Last Friday I was down 
 there arrd saw them on the waggorr. 
 
 Q. — Felling trees ? A. — They wer-e on the waggon in the farm. 
 
 Q. — Some timber of yours was seized and hauled away ? A. — Only some little firewood — 
 two or three cords. 
 
 Q. — Aside from timber of yours that had been seized, did you see any timber hauled away 1 
 A.— No. ' 80 
 
 Q. — Did you see any tr-ee actirally felled down orr the premises since 2rrd March last ? A. 
 
 I saw them orr the waggorr, 
 
 Q.— Did you see arrybody chop down any fr-ee ? A.— I met men corning out of the wood 
 bush. 
 
 Q.— Did you see arrybody choj) down any tree ? A.— I didrr't ; but I met them corning out 
 of the bush with timber on the waggon. 
 
 Q. — And the men you met? A. — A marr nanred Saxsby and John Donald, and Saxsby's 
 brother was with the team ; they had their axes (m their shoulders; Saxsby was driving the 
 team ; I met the tearrr and I rrret them with their axes afterwards in the bush. 
 
 Q. — On these lots ? A. — Yes ; and it was either balsam or tamarack. 
 
 Q. — Was it large or small tinrber ? A — Eight or nine inches. 
 
"TWfTiTtfflr^ 
 
 >n 
 
 (Hi :! 
 
23 
 
 Q. — Were they long or short ? A. — No. 
 
 Q. — What did they appear to be intended for/ A. — I suppose for buildinf;^ somethinii;. 
 
 Q. — Were the poles like scaffolding poles ? A. — Heavier than scaflolding poles — some of 
 them were about the size of scaffolding ])oles and some bigger. 
 
 Q, — I understand from what you told Mr. Boyd you never lived on the lot at all, you merely 
 fanned a portion. A. — I never slept on it ; we used to be there every day ; I had a kind of a 
 shanty \ip there, and I had a big furnace. 
 
 Q. — You went there and did work ? A. — I boiled stuff there for pigs, and fed the pigs all 
 the winter ; I never slept there. 
 
 Q. — Where did you live ? A. — Southampton. 
 
 Q. — It was in another municipality wasn't it ? A. — Yes ; in corporation of Southampton. 
 
 Q. — You lived a mile and a half from this land ? A. — Where we used to get on at the rail- '*' 
 way it is a mile and a half. 
 
 Q. — It was in another inuiiicipalit}', Southampton ? A. — Yes. 
 
 Q. — This land is in Sangeeti ? A. — Yes. 
 
 Q. — You told Mr. B lyd that up to a certain time you kept pigs on the [dace, until the time 
 the barn was burnt ? A. — Yes. 
 
 Q. — When was tin; barn burnt ? A. — It must be in '57 or '08 — I have had two crops off 
 since the barn was built. 
 
 Q._You know it was not '57 ? A— It must be '.57 or '77— '77. 
 
 Q. — Can. you tell, by jogging your memory, what year the barn was burnt? A. — I don't 
 remember the date, and I don't want to tell no story about the thing about '77 or something like 
 that, '77 or '78 ; I don't know which it was ; I would't swear to that. 
 
 By Mr. Boyd. 
 
 Q. — Did you get last year's crop ? A. — Yes. 
 
 Q. — The year before ? A. — Yes ; I got four crops off it. 
 
 By Mu. Ferguson : 
 
 Q. — Can you fix the 3'ear on which you say you gave notice to the Council ? A. — Nearly a 
 year after I took it, because tliey had been writing backwards and forwards trying to get them 
 to open that road. 
 
 Q.— You took it in '75 ? A.— Yes. ^^ 
 
 Q. — You wanted a road pretty soon after that ? A. — I wanteil it right away, but I couldn't 
 get it. 
 
 Q. — Soon after taking it, you .spoke to the Council in the way you have stated ? A. — Mr. 
 Connaway wrote. 
 
 Q. — In "75 you took steps ? A. — Yes. 
 
 Q. — And you told Mr. Boyd you were talking to the Council ? A. — Yes. 
 
 Q. — How long after you got your lease was that ? A. — Nearly twelve months ; I havn't got 
 the letter with me or I would .show it to you. 
 
 Q. — Did you know the Assessor ? A. — Yes ; what they said was Assessor, a man named 
 Wallace, but I never spoke to hira ; I never knew him till now, lately — not before ; since the ^q 
 place has been sold I knew him. 
 
 20 
 
n 
 
 24 
 
 Q. — You rontod a barn in Soiitliainpton from ono Connaway ? A. — Yes. 
 
 Q__Tlic stuff" yon raised on tliis place you liauled directly to that barn? A. — Yes, fetched 
 it down ; wanted it to feed the cattle. 
 
 Q. — How many acres of wheat did you ever raise on the bind? A. — As hirjh as nine one 
 year, and eight, and ho on, and seven. 
 
 Q. — Have you had a croji in the place every year since you got it? A. — The first year I 
 didn't make niucli ; 1 couldn't get into it; I liad a crop every year afterwards; the second jear 
 that I put in crop, 1 put in $oO worth of wheat into the field, sowed it, and I got off S4l worth. 
 
 By Mil. Boyd: j^j 
 
 O. — Had you a crop there in '75 ? A. — Yes ; only a few potatoes, carrots, and such things ' 
 no grain nuuh, only Hungarian grass. 
 
 Q. — You bad that cropped ? A. — Yes, and cairots and potatoes. 
 
 Q. — There was some hou^c on it, then ? A. — Put part of the barn up tbat year, to put my 
 hay in; I bad about twenty acres of liay mowed tlie first year. 
 
 Q._That was all the first year ? A.— Yes. 
 
 Q. — How near is tlie nearest point of tbis farm to the nearest point of S()Uthami)ton, where 
 you lived ? A. — The nearest point would lie down to lake short'; about a mile, I should think, it 
 is from where we lived. We couldn't get up to the farm if we went tbat way ; it adjoins the 
 corporation. 
 
 Q. — And that is between the 400 acies and the village ? A. — Yes. 
 
 Q. — How far is the village fiom this road ? A. — I should think not more than a mile from 
 the land up to tlie village. 
 
 Q. — Is it the village where you lived ? A. — Right on High Street, right in the village. 
 
 Q.— Is that where \ou were living in '7^i ? A. — Yes; we lived there ever since. 
 
 Q. — Was tbat an incorporated village then ? A. — Yes 
 
 Q. — Have you any idea of where the boundaries of these four lots are ? A. — Yes, every ten 
 chains. 
 
 Q. — Is there some cli;aring (»n each of the four lots ? A. — Yes. 
 
 Q. — You mean to say you bad a crop growing on each one of the four lots ? A. — Yes, on 
 every lot. 
 
 Q. — Which lot was the barn upon ? A. — 59. 
 
 Q. — How much clearing do you say there was altogether? A. — I guess about seventy- 
 five acres. 
 
 Q. — Was there about an equal ann)unt of dealing on each of the four lots ; or had one more 
 than the others? A. — The two smallest numbers had the bicrjirest clearinsr. 
 
 Q. — How wide are the lots in front ? A — Ten chains. 
 
 Q. — Did they clear any all the way across four lots ? A. — Yes, right across the four lots. 
 
 Q. — Did the lailway pass through the clearing? A. — Clearing up against the gates. 
 
 Q. — One of the witnesses marked clearing on each side of the railway ? A. — Yes. 
 
 Q. — Are the clearings on the different lots all connected so as to form one clearing ? A. — Up 
 against the gates where clearing is, it is all pastured land. 
 
 Q. — Do you say there is clearing on 58 ? A. — Yes. 
 
 20 
 
 30 
 
H: 
 
25 
 
 Q.— McNabb didn't ,say tliorc wa.i ? A.— The barn was on 58—59 ham is on. 
 
 Q. — Do you Hay there is a clearing ou 58 ? A. — Yes, and 57 too. 
 
 Q.— Both the otliers ? A.— Yes. 
 
 Q.— Is the cl.'ariiig all one clearing ? A.— Yes, one clearing e.xcopt eight acres the fire haa 
 been all through, and the trees are lying in all shapes and forms, (referring to right hand side of 
 the map.) 
 
 Q. — Is there fencing ? A. — Yes. • 
 
 Q. — There is actually cleared land fenced in on each one of these lots ? A. There are two 
 
 fields fenced ott"; one field the clearance goes down thus over two lots all into one. There is no 
 fence between. 
 
 Q. — Is there no field that extends over three of the lots ? A.— No, I don't think there is. 
 
 Q.— Is there one clearing extending over three of the lots f A.— There is a kind ..fa gully, 10 
 and that is where the fence is. 
 
 Q- — Any bush laiul between the two pieces ? A. — No, it was not bush. 
 
 Q. — The clearing extends over three of the lots, and then another piece, eight acres from the 
 other lot; is that the way of it ? A.— Yes ; it comes over three, it comes right up to the other 
 fence. 
 
 Q.— Is tliere one clearing extending over the whole four lots ? A. — There is clearance like 
 — only one is pasture and the other ploughed. 
 
 Q.— Does the otl.er clearing, exeept the eight acres, extend over the whole four lots? 
 A. — Yes, if you call pasture clearance. 
 
 Q.— Is the pasture fenced in ? A.— Fenced in all aiound outside. 
 
 Q.— Is the timber cut off it ? A.— It was burnt down before I went there. 
 
 Q.— Has it been cleared ? A.— Tiiis lot had been partly cleared ; I finished all of it up my. 
 self; some of it was cleared before I went there. 
 
 Q.— You know what is meant by clearing land for [)urposes of agriculture? A. — Yes; 
 before I took the place the man had 1-t acres to clear. 
 
 Q. — So, in the year 77, or '7(J, or '78, was there a clearing extending over the whole four lots ? 
 A.— Yes. 
 
 Q.— Was there any ploughing done upon the whole of the four h)ts, on each one ? A.— Yes; 
 on the four lots. 
 
 Q. — Was there grain rai.sed on each one of the four lots ? A. Yes. 
 
 Q.— Is the pastured land cleared land? A.— A good deal of it is cleared; I have been 30 
 clearing it. 
 
 Q.— Leave the eight acres altogether ; is there one clearing extending over the whole four 
 lots ? A.— Yes. 
 
 Q — Did you ever tell McNabb that you had paid taxes on these lot.- ? A.— No. 
 
 Q.— Did you ever tell anybody ? A. — No. 
 
 Q.— Nor Hall/| ? A.— No ; I didn't know nothing about the taxes, whether they were pay- 
 ing them ; I wondered they didn't a.sse.ss me ; I can't make it out how it was they didn't as,ses8 
 me in it; that was the way it wa.s. 
 
 Q —You never served any wiitten notice on anybody with regard to your not being assessed ? 
 A. — I took this letter down, stating I had leased the jjlace for five 3 ars. 
 
 Q.— What letter ? A.— I went to the Council, as I told you, and took a letter down from 40 
 Mr. Connaway, and I told them I hadn't been assessed for it. 
 

S6 
 
 JAMKS G. COOFKR, hworn for plaiiitiH", to.stifi.'il its follDWH:— 
 By Mk Ham.. 
 
 Q. — You arc Treamirnr ofC'oiinty of Rnicu ? A. — I am, 
 
 Q. — You proilucf llu' liook.H showing tiixts uiiixiid fur 7.'), TO, niid 77 ? A. — I do. 
 
 Q_ — I lu'licvt' tlifio wns II iiiiHtiiki' in tlio niiniiint cani(.<l forward mi onu of thiiso lots? 
 A. — A iiiistakt' of 10 cviitH on one lot ; Lot 57, 10 cents too niucli. Tlit' uiiionnt eanicd forward 
 in 7(1 WHS $27.r)'). Tliu amount was 1J47.M when I sold, in place of !?iO 2.'} The arn'arH of taxes 
 were for the yeais 'lH, 7(1, uid 77. Tiie years '7'i and 7(5 won; carried forward to a new honk, 
 an<l the extension was made $i7'>ii n|>on one lot, it hein;^ 10 cents too nnicli that is on lot r>7 ; 10 
 it was a clerical error. 
 
 Q. — It was Kohl for 10 cents too much ? A. — Sohl f<jr 10 cents too niucli. 
 
 Q. — Did you j^ive separate tax certilieates ? A. — Se|iara(e tax ceitilicates on each lot. 
 
 Q. — Weie they endnaced i:i one lot i A. — One deed lor tlie four lots. 
 
 Q.— Was the eonsiih ration on that Deed of Sale 10 Cents too much ? It was one conHidcra- 
 tion. was it, or wer(^ four considerations in that Deed? A. — i can't rememher ; oi cuuise tlio 
 total sum would lie at all events 10 cents tco niutli. It was !?2in.4.'), ami it should have lieen 
 $219.35. 
 
 Tile tax certilieates produced hy this witne.ss here |)\it in; of the foui lots; I don't know 
 whether tliey lue patented or not fiiim the Department. Tin- returns to me from the Munici- 
 palities do not show me whetlier they art' patentrd or imt. 
 
 Q. — You {{ot from the Crown that iid'oimation I A. — Ye.s. -^ 
 
 Q. — I suppose you got that at every sale ? A. — Yes. 
 
 Q. — Have you the non-resident asso.ssmi'iit roll for these years ? A. — No, I havt; the non. 
 resident collector's for '75, '7ti, and '77. 
 
 Q. — Coulil yon say whether the whole four lots were «ssessed^75, 7G and 77 ? A.— They arc 
 returnetl as tht' Non-resident Collector's Roll. Thesi- pr.o(hieed are the Noii-re.sident Collector's 
 Rolls — returns to me of the taxes ayainst these lots. They are tlu! Non-resident Collector's Rolls. 
 The non-resident assessment remains with the Clerk. 
 
 Q. — You know John Eastwooil's signature? A. — I do. 
 
 Q. — That is it to these ? A. — Yes, proving signatuie to the Collector's Roll. 
 
 Q. — He is now dead ? A. — Yes. There is one certilicate by E istwooii and one by Fleming. , 
 The '77 one is M.'. Fleming's. 
 
 Q. — In those collector's rolls, the diH'erent school sectioiis are mentioned ? A. — Yes. 
 
 Q. — Do you know whether these school sections ai'e the whole that were assessable in these 
 lots? A. — Of course I can't tell ; it wouhl be unrea.sonable to supjHise otherwise, but I know 
 nothing about it. 
 
 Q. — All the school taxes were paid by this sale of those lots f A. — Yes, undoubtedly. 
 
 Q. — Have you any books .showing when the lots connneiiced to be assessed ; the entry from 
 the beginning ? A. — The onl}' returns I have, when lands are returned as mm-resident the taxes 
 are uncollectable. I have got nothing of the assessment ; sim|)ly that the taxes are on non- 
 resident lands. Those I have here on cny books are aa far back as '71. I don't know how much 
 further back. 
 
 Q. — Under .section 109 of the Act, Clerk of the Municipality is required to furnish a list and 
 
 30 
 
'!i^ 
 
 t-: 
 
27 
 
 keep tlie list so furnished by tlie Treasurer, on file in his office. Now did you furnish a list to 
 him of lands liable to be sold ? A. — Yes ; furnished to the Clerk in 78. 
 
 Q. — That you didn't <^oi back again ? A. — That he keeps of course. Ho makes his returns 
 from that after the asses.sor repoits. 
 
 Q. — Did you know these lands ? A. — No. 
 
 Q. — Did you know their value ? A. — I did not know anything further than such informa- 
 tion I might have by looking at as.sessnient rolls returns to me. 
 
 Q. — Did you conduct the sale in this case ? How was it sold, in the whole lot .' A. — Yes, 
 because no one would take anything less than the whole. No (me would bid to take a smaller 
 portion of the lot. 
 
 Q. — How many were there at the sale ? A. — I can't remember what number were there. 
 There must have been a number. There were quite a number of purchasers at all events at the ^^ 
 sale. Theie are always iiiore judders than purchasers. 
 
 Q. — Nut a great many^at the .sale? A. — Quite a considerable number; I can tell exact 
 number in a few minutes. There were a large number ottered for .sale, but a large part of them 
 remained unsold. 
 
 By Mil. Ferguson. 
 
 Q. — What was the reason so far as you know, that the lands that were offered for sale, 
 remained unsold ? A. — Because no person wouM purchase them at the prices tiiat were against 
 them. 
 
 Q. —There was a consideralile number of purchasers there ? A. — Yes. 20 
 
 Q. — A crowd of people ? A. — I don't know that there was a particular crowd ; there were 
 fifteen or twenty absolute purchasers, at all events, at that sale. 
 
 Q. — Were there more bidders than pureha.st;rs ? A. — Yes, there are alwa^'s ; I feel confident 
 there woidd be twenty -five or thirty people, or more; at most of our sales there ai'c a consider- 
 able number. 
 
 Q. — Was this sale so far as you know, fairly conducted ? This land sale ? A. — So far as I 
 had anything to do with it, or so far as I know, it certainly was. 
 
 Q. — You ar- the one who actually made the sale, 1 believe ? A. — Yes. 
 
 Q: — You have been at other land sales of the county, befoie, I suppose? A. — Not except 
 our own land sales in tlie county ; I have been at every sale in the county. 20 
 
 Q. — Was the .sale conduct eil in the usual way ? A. — Yes. 
 
 Q. — As far as you were concerned, and as far as you know, it was faiily, openly and properly 
 conducteil ? A. — In every way. 
 
 Q. — Do you know these papers shown ? A. — I do, on account of the purchase and receipt 
 for mone}' ; just same as certificates. It is properly a leceipt pending the issue of the certificates ; 
 it was given iunnediately after the sale. 
 
 Q. — Then the purcha.ser got his certificate ? A. — Yes. 
 
 Q. — Then he waited a year and got his deed.? A. — Precisely; the deed put in and pur- 
 porting to be such, is the deed I gave ; and the Wariant (purpoiting to be such) is that under 
 which sale took j)lace ; Robert Baird's, the then Warden of the county, name is to the warrant ; 
 and George Gimld's County Clerk and the Seals of the County of Bruce, and attached to it is a 
 Schedule of the lands to be sold, and the amount against them. 
 
: . : i ^M 
 
 I.M! ■■ 
 ii| ■ 
 
 I ilH'll'''^^^ 
 
 lUi. 
 
 1 
 
28 
 
 Q. — Tliis Schedule contains the lamls in the various townships in the county ? A. — It does 
 and there is also an entire list of lands advertiseil for sale for taxes in the year 78. 
 
 Q, — It is your |troperty, I siipi)ase ? A. — Yes. 
 
 Q. — 'The lands had to be advertised according to Statute ? A. — Yes. 
 
 Q. — There were advertisements? A. — Yes; I adverti.sod in the "Gazette" and the h)cal 
 papers. 
 
 Q. — You know what advei tiseinents are necessary ? A. — Yes ; they were properly advertiseil. 
 
 Q.— Do you keep and preserve those ? A. — Yes. 
 
 Q. — You said you hadn't the assessment rolls ? A. — They ought to remain with Township 
 Clerk ; copies of them are furni.->hed to the County Clerk. ly 
 
 Q — They don't come to your hands at all ? A. — No ; not the assessments, 
 
 Q. — How dill you soil these four lots? A. — Each lot was ottered for sale separately, as on 
 the list, in the ordinary way, offering it for sale and inquiring who would take the lot, and then 
 who would take less than the lot. 
 
 Q. — Each one was taken out separately and oflered for sale ? A. — Ye,s. 
 
 Q. — And the Mr. Maclean mentioned in certificate became ))urchaser in each case ? A. — Yes. 
 
 Q. — In which one was the mistake of 10 cents made ? A. — In ')7. 
 
 Q. — The sale was held on the (iaj' appointed in advertiseineni ? A. — Yes, 
 
 Q. — And at the place appointed ? A. — Yes. 
 
 By jIr. Bo VI) : 
 
 Q. — You have a ma]i showing acreage yn\i put in lots in return from Crown Lands ? A. — I 
 couldn't say now whether I iiave taken this from that or the leturns to me ; I have a map from 
 the Crown in the office ; they correspond with the returns on the map.- (Witness here produces 
 Saugeen map from his office.) I have had it a number of years ; I could not say where I got it ; 
 I eiti.er had this one or another ; I have had a map of Township of Saugeen in the office for 
 eight or nine years last at all events. 
 
 Q— Either this one or a similar one to this? A. — Yes; this (one produced) is a copy of 
 the map taken from the Registry Office. 
 
 Q. — Which is returned from the Crown Lands Department ? A. — Yes. 
 
 By Mr. B'ergitson. 
 
 Q. — It is just a blank copy ? A. — Yes. 
 
 Q. — The assessments on acreage aren't every year the same > A. 
 
 SO 
 
 -No. 
 
 paid. 
 
 The book was here put in by Mr. Bo\ d, showing for the three years how the taxes have been 
 
 Wednesday, 9 a.m, 
 ROBERT FLEMING, duly sworn for plaintiff, testified as follows .— 
 
 By Mr. Boyd. 
 
 Q.— You're Clerk of Saugeen Townslr'n ? A.— Ye.s, and have been since July '77— 1st 
 July. W. K Eastwood was my predecessor; he died shortly after that; he succeeded his 
 
111" I 
 
 mi- 
 
 : i-l 
 
 ! i 
 
 i !- 
 
29 
 
 father, Jolin Eastwood ; and John is dead also. John was Clerk for a considerable number of 
 years. 
 
 Q. — You prepared statement and abstract of assessments on those lots for Mr. McNabb, which 
 he has given me ; is this " J. 2," it ? A. — Yes, from G2 down to 78. It is all correct. 
 
 Q — It contains correctly an abstract of the assessment on those lots, from 62 to 78, during 
 those years ? A. — Yes; I i)roduce non-resident assessment roll for year '75, from wliicli it appears 
 lots 57, 58, 59, and GO are assessed separately, 57, 87 acies, 58, 100 acres, 59, 100 acres, 60, 
 101 acres. I produce ntm-resident assessment roll for 1876 ; lot 57 a.s.sessed 87 acres; 58, 105 
 acres; 59, 104 acres ; 60, 103 acres. Year 1877, 57, 89 ac/es ; 58, 105 acres ; 59, 104 acres , 60, 
 103 acres. I produce also resident roll for 1877, for the Great We-itern. For the year 1877, 
 iion-iesident, 57, 89 acres ; 58, 105 acres ; 59, 104 acri.-s ; 60, 103 acres. 
 
 Q. Takiii"' the last year for which sale took place for taxes for 1877 for example, W(; find ,/» 
 
 that portions of these lots were a-^sessed on resident r'oll to the Great Western Railway 57, Lake 
 Range, 57iV',T acres; .58, Laki^ Range, 58ili acius ; 59, 9 SVo acres; 60, 2v'„"u acres. Those were 
 a.sses,sed as your book shows, to Gri'ai Western Railway ? A. — Yes. 
 
 Q. Samuel Barker, the Solicitor, was tlie person to whom notice was sent? A. — Yes. 
 
 Q. — Are those taxes paid ? A. — Yes. 
 
 Q.— Paid by Great Western / A. — Yes ; I iiave the Collector's roll with me. 
 
 Q. — You know that they are paid ? A. — Yes, always paid. 
 
 Q — Always paid by the Great Western ? A. — Yes. 
 
 Q._Does that include a portion of the statute labour and school tax ? A.— -The Collector-'s 
 roll shows that. I have Collector's roll for 1S77 ; it is curtailed into different school sections. 
 
 Q.— What was the wiiole amount [taiil on these four? A— $3^5^ amount paid by the 20 
 Great Western for 1877 ; that §38.42 includes statute labour. 
 
 Q.— That includes township statute lab,)ur, jjchool rate, township rates, and all the rest? 
 A. — Yes, 839.35 was paid in 1876 by Great Wester-n and the different school i-ate.s. 
 
 Q.— I'l the year 1877 you have the lots distinguished, and those lots are identified as 
 parts the Great Westtu-n are paying taxes for ? A. — Yes. 
 
 Q. — Are they distinguished in 1876 in the Collector's roll ? A. — No. 
 
 Q.— But ail the lands owned by the Great Western are included in one a.s.sessrnent .' A. — In 
 one assessment, 146 acres. 
 
 Q. — You know tiiat these were | of that <!omposed of part of that 146 acres ? A. — Cer- 
 tainly ; I didn't make this document out. 
 
 Q.— But you know the Great Western ri-turn included those.? A.— Yes ; the $39.35 for 
 1876 taxes are taxes paid on the whole 146 acres ; $35.32 for 1877 ; it is the full assessment orr 
 the railway lands. 
 
 Q.— Is there no means of ascei-taining the proportiim of taxes applicable to that particular 
 
 property ? A. — It would take a little time. 
 
 Q.— You think this S38.52 includes the taxes on all the Great Western lands in that muni- 
 cipality ? A. — In the Township of Saugeen it is divided into .school .sections so that the money 
 could be placed to the credit of each school 8(!Ction; that is the only rea.son it is divided. 
 
 Q. — As these were taxes on resident lands imposed on these particular parts owned by the 
 Great Western, and paid by them for that year ? A. — Yes, and the school tax belonging to that 4C 
 division. 
 
 30 
 
lilli ijl;^ 
 
 . ...j.i 
 
 
 i 
 
 \<)]f 
 
 ■ 
 i 
 
 11 Ij 
 
 
30 
 
 10 
 
 Q, — And the statute labour tax ? A. — Yes. 
 
 Q. — So all the lands are classed en bloc there ? A. — En bloc 146 acres. 
 
 Q. — Was that paid by the Great Western ? A. — Yes. 
 
 Q. — And in 1873 ? A. — 14!4 acres, amount of tax $('1.34, paid by Great Western. 
 
 Q, — And that included a portion of those same Iand>* ? A. — Yes. 
 
 Q. — And those were paid by Great Western in i-cspect of parts of those lands as well as the 
 other parts of lots that they owned ? A. — Certaiidy. 
 
 Q. — Their road ran through that municipality ? A. — Yes. 
 
 Q. — In the non-resident roll you see that the whole of these lots are assessed as non-resident ? 
 A.— Yes. 
 
 Q. — And the other roll — part of it is assessed as resident anil part by Great Western ? A. — 
 Exactly. 
 
 Q. — Did you get a list of lands liable to be sold for taxes for year 1878 ? A. — Yes ; from 
 Treasurer, " K. 2," list. 
 
 Q. — Now a copy of that was sent to the collector or a.ssessor ? A. — I hantied him a copy, 
 and when he handed back the roll, he had mislaid or lost the copy I gave him, and I got this 
 certificate from him, the certificate which he returned (certificate put in.) 
 
 Q. — This man Min-ker, Junr., is dead I believe. A. — He died September, 79. He gave me 
 a .solenm affirmation that that was correct, but I didn't witness it. Couldn't enter no names if 
 they hadn't. 
 
 Q. — There was no oath taken ? A. — No; it was only an affirmation that that was a true 
 statement ; there was no occasion for it when theie was none of the lots become occupied ; the 20 
 form I gave him had a schedule to notify him if they were occupied or not; to certify they 
 weren't occupied. He assessed these lots as non-resident in '78. 
 
 Q.— You know Muiker's signatuie ? A.— Yes ; that is his to assessor's statement or return 
 put in. 
 
 Q.— Wallis was collector for years '75, '76, '77 ? A. — Yes, John Waliis. 
 
 Q.— You know his signature ? A. — Yes ; and that is his as collector — to his statement put 
 in — no doubt of it. 
 
 Q.— Is that Mr. Wallis' writing on the notice to the Great Western ot an assessment ? A.— 
 Yes. 
 
 Q.— John Eastwood is dead ? A.— Yes ; I know his signature ; '77 is the time when part of 30 
 each lot was defined on the assessment roll. Acreage in '75 was 393 in the four lots ; acreage in 
 76 — this is our resident roll — 401 acres ; 8 acres over-assessed. It includes the railway tracts and 
 all the 401 acres ; the same in '77 ; the acreage is correct in '75. 
 
 By Mr. Furguson : 
 
 Q-— In '75 what was 67 assessed at ? A.— 87 acres ; and there were a trifle over that in the 
 lot. 
 
 Q- — There are 89 ? No ; 401 acres altogether on the map ; but there is a mere corner taken 
 off the railway. 
 
 Q. — Have you any book to show what the 87 acres were assessed at ? A. —$870 • $10 an 
 acre ; these four lots were all assessed at $10 an acre. 
 
1 
 
 ' m 
 
 ^Ji 
 
81 
 
 Q. — What wan 58 assessed at ? A. — 103 acres ; 59, 102 acres ; 60, 101 acres ; 400 acres in 
 the four lots : 393 assessed, leaving 7 acres for the railway ; 303 is the correct acreage, indepen- 
 dent of Great Western track ; except about 7-lOtIia of an acre ; 89 acres in 57 altogether ; 103 
 acres in 5<S ; 104 acres in 59 ; 103 acres in CO altogether. 
 
 Q. — Now in '75 two acres were sulttracted from these lots for railway lots. A. — Yes ; there 
 is a fiaetioii. 
 
 Q. — In '77 I understand you there was a sef)arate assessment for the railway for their frac- 
 tional part of these lots > A. — Yes ; 7, 3-lOth acres on the 400 acre.s. 
 
 Q. — Then in '70 how was it ? A. — Great Western were assessed for their track all the way 
 down, and the non-resident lots were asse.ssed 401 acres, being 7 acres too much. 
 
 Q. — In each of the three years the lots were assessed in different ways as regards the railway 
 land ? A— Yes. 10 
 
 Q. — How wore they assessed in '77 ? A. — 401 acies ; 7 acres too mucli ; and tlie Great Wes- 
 tern were a,ssessed for their track not defining what lots. 
 
 To Court — I mean by the track all that they occupied. 
 
 Q. — What you mean is that in '7G, township as.ses.sed railway on their line of road from one 
 end of townsiiip to the other, where it crosses the township ? A. — Yes. 
 
 Q. — That is as a block of land ? A. — Ye.s. 
 
 Q. — So four rods wide or whatever it was the lailway company were a88es.sed for that lot 
 through the township. A. — Gross, sn many acren. 
 
 Q. — Was the acreage put down in '70 and '77, the nunibar of acres assessed as non-resident 
 lands, on each of these lot* ? A. — Yes. 
 
 Q. — Were they the .same as in '75? A. — No; they were correct in '75, so they were over 20 
 asse.ssed 8 acres, or between 7 and 8 in '70 and '77 on nonresident land. 
 
 Q. — It is this way that in '75 the land ior the line of railway Wiis subtracted in each of the 
 lots, with some fractional errors, and in '76 and '77 the railway land was not subtracted from the 
 acreage ? A. — Exactly ; In '77 the railway was assessed separately for each lot, and kept correct 
 since that. 
 
 Q. — Do you know Harmei', who was tenant of this land ? A. — Yes. 
 
 Q. — Remember any t)Ccasion when he was speaking to you as Clerk of Council in regard to 
 opening up a road and being asse.ssed for the land ? A. — Yes ; he presented a petition at Council 
 Board on 30th November, '78. 
 
 Q. — Know Mr. Connaway ? A. — Ves ; I don't think that is his writing on the petition. 
 
 Q. — Did Hanner say anything to you about it before Council ? A. — I think I did ask bim» 
 he wanted South-street opened up in Southampton corporation. 
 
 Q. — Harmer was there in '78, at Council Board, with this petition, and he was wanting a 
 road o])ened up ? A. — Yes. 
 
 Q. — He was only before the Board once ? ' A. — To the best of my knowledge, but I was only 
 Clerk from '77. 
 
 Q. — You have no hesitation in saying the date, looking at that petition ? A. — And the 
 minutes of the Council. 
 
 Q. — Was this entered in minutes of Council ? A. — Yes. 
 
 Q. — There is an entry of this in 78 ? A. — Yes. ^ 
 
 Q. — You have minutes of '76 here ? A. — I have read minutes over, but could find no place 
 
 30 
 
^M 
 
 lii'tl 
 1 1 ' 
 
32 
 
 where Hariner appeared before the Council ; I Iiavn't read them over so carefully as I would 
 swear to ; I read them over yesterday when he was giving his evidence, 
 
 Q. — And you didn't find anj' entry of his having been there, before the Council ? A. — Not 
 in 70. 
 
 Q. — You, of course, wouldn't know anything about '76 but what the minutes show you ? 
 A. — Nothing more, 
 
 Q. — Statfineiit given by you of aj-sessment and put in by Mr. Boyd — the one that you cor- 
 rected, when waa that given to defendant ; on day it bears date ? A. — It was posted on that 
 date or the following morning. 
 
 Q.— You told Mr. Boyd Mr. Murker made a solemn affirmation before you in regard to this 10 
 certificate ? A. — Yes. 
 
 Q. — Was that reduced to writing ? A. — No. 
 
 Q. — I suppo.se you mean he uftii uied .' A. — Solenmly affirmed. 
 
 Q. — Did you administer the affirmation to him ? A. — Not in that way — holding up right 
 hand. 
 
 Q. — 1 want to know what you mean ? A. — He solemnly affirmed that that was a true and 
 correct statement. 
 
 Newspaper put in, " M. 2." 
 
 Q. — Ts that the correct advertisement of thiiJ sale ? A. — The very identical. 
 
 RICHARD SKILL, sworn for plaintiff, testified as follows; 
 By Mr. Boyd : 
 
 20 
 
 Q. — You're Clerk in office of Solicitor of the Great Western ? A. — I am, and have been for 
 nine years in May 27th. 
 
 Q. — Did you have the getting up of the returns and statements to make to the municipal 
 officers ? A, — Ever since '73 ; returns for '72 were sent i' efons I went to the office. 
 
 Q. — Since '73 you have made uj) statement to send to the Mimicipalities showing the lands 
 the Great Western owned ? A, — Yes ; and in '73 we sent a statement — the statement put in — 
 and the statement put in is correct statement for '73. 
 
 Q. — In this particular municipality, wliat was quantity of land the Great Western occupied __ 
 on Lot 57 ? A.— 10-lOOths 58, 2 30-10()ths 59, 2 3t>-I()0ths 60, the same. 
 
 Q. — That is shown on this return you made in '73 ? A. — To Township Clerk John Eastwood. 
 
 Q. — And the taxes for that year were paid } A, — Yes ; the fii-st thing after our notice goes 
 in, under 26 of present Statute, the Assessor .sends notice of assessment ; he is bound by our 
 statement of lots with regard to acres, but he isn't bound by the value ; they vary a great deal in 
 value ; we take good care, they don't alter acreage much. 
 
 Q. — What is total acreage in '78 .' A. — 152 23-lOOths in the whole Township ; it is set out 
 in that statement of lands (N. 2.) 
 
 Q. — Is this correct copy (O. 2) ? A. — It is correct copy of return to Town.ship by me. 
 
 Signatures cf Eastwood and Wallis, County officials, admitted to the documents. 
 
 Q. — They make same number of acres ? A. — Same number. 
 
 Q. — But don't give details as you had given them the previous year ; you simply give the ' 
 aggregate amount in '74 ? A. — No ; '74 we give aggregate amount, not the details. 
 
!= f 
 
33 
 
 Q. — But tlx! uggri^gato amount was tlio sauio as in previous year ? A. — Same aa in tiio pre- 
 vious year. 
 
 Q. — And tliu taxes on that wore paid hy your Company ? A. — Yes, they wore paid. 
 
 Q. — Now, 75 ; is this " P. 2 " a correct copy you made from your records ? A. — That is a 
 correct copy. 
 
 Q. — This sliows the same aggrofjato acreage as tl.o previous year ? A. — Except Port El<'in 
 whicli had lieen incorporated in '74 ; the same (piantity for tliose particular lots ; they have 
 never heen altered ; 1+4, 7l-l()0 wius correct (pianity 
 
 Q. — On which you were assessed and paitl your taxes ? A. — Yes. 
 
 Q. — This, I sec partieidaiises the school sectioi\s 1 , 2, 5 and G and Statute Labour ? A. — Yea. 
 
 Q. — Tlierefore they must have ascertained the localities of the landa to apportion the school 
 moneys ? A. — They're the lists ; it wasn't necessary to give them a secon I copy until there was ^^ 
 an alteration.. 
 
 Q. —Ill 70 you make a slight change in the acreage, is this a correct copy (Q, 2) ? A. — Yes 
 
 Q. — Change |)ro(luced l>y two acres us yon have marked ? A. — As stated in return. 
 
 Q. — 77 is that " 11 2 " a correct copy < A. — Yes, I made that myself; it is correct. 
 
 Q. — Then you give a statement hero that acreage ha.s decrea.sed to llGiVo ? A. — That is on 
 the whole township; but not on those |)articular lots the change was: the a-ssessors for Town- 
 ship of Saugeen, had been asse.ssing us 23,Vo acres in Government Reserve; the other side of 
 South Street which our engineer had placed on the plan in Township of Saugeen, and if you refer 
 to the book of the right of way, it is registered as in Township of Saugeen ; but it was in. June 
 '70 when we went into the question ; there was a change of Solicitors on the Wellington, Grey 20 
 and Bruce. 
 
 Q. — You found these lands were in another municipality ? A. — In village ot Southampton, 
 and we had been as.se.s,sed for them twice. 
 
 Q. — But there was no change in the acreage of these four lots ? A. — No. 
 
 Q — The taxes for all the.sc years were paid Iiy the Company ? A. — They were paid ; and I 
 produce receipts and also checjue of the Great Western, and collect(jr's receipt on the back for 
 the taxes. 
 
 Q. — That map we put in yesterday from your office was a correct one ? A. — Yes. 
 
 Mr. Boyd puts \n " S," " T," " U," copies of assessment notices .sent by Municipality to Great 
 Western for three years. 80 
 
 By Mr. Ferguson. 
 
 Q. — Is it a conveyance of the lands across the whole four lots ? A. — Yes. 
 Q. — Does it show acreage ? A. — Yes, on the plan it just shows how the lots are cut 
 Plaintiff closes here ; defendant opens by calling 
 John McNabb, (recalled). 
 
 By Mr. O'Connor. 
 
 Q. — Harmer stated yesterday that lately you had been cutting some timber on these lots ? 
 A. — After I had received notice not to cut timber, I stopped cutting, myself, but I found out 
 Harmer's son was cutting wood, and I stopped him, and I went down myself and gave notice to 
 
 40 
 
t 
 
34 
 
 the men I found chopping, to desist ; one man was splitting rails and the others chopping wood, 
 and I stopped the men ; however before I could g«t the wood seized, they had it taken away, aa I 
 understami over fifty cords, and sold it in the village of Southampton, the Haruiers. 
 
 Q. — Did you seize the wood and pievent them taking any more of it ? A. — I prevented 
 
 them taking any more of it. 
 
 Q Do you mean to say that is all you ever done in the way of cutting and removing timber 
 
 since you were given instructions not to cut ? A. — Yes. 
 
 Q. — Did you engage any person to do it in any way ? A. — Not at all. 
 
 Q. Did you know anything about any pei-son doing it on your behalf? A. — I have allowed 
 
 some parties to teke away fallen timber to buin for bricks ; since that I have allowed them to 
 take it off the front ; there wasn't any value in it ; I didn't take it myself. 
 
 Q — What they took was of no value ? A. — No ; the fire had run over it for years, for the 
 last fifteen or twenty years. 
 
 By Mr. Boyd. 
 
 Q — If it was of no value they would not have taken it .' A. — Merely for this that they 
 weren't paying anything for it ; it might as well have been taken away as to be burnt up; I say 
 that I did take cordwood that I seized ; there was value in that. 
 
 Mr. Ferguson here puts in a certified copy of the warrant. 
 
 20 
 
 Alexandkr McNabb, re-called. 
 By Mr. Ferguson. 
 
 Q. — You told me yesterday you hadn't since the payment by you, or the manner in which 
 you paid the taxes in 1875, done any business for Mr. Fleming ? A. — Not that I recollect. 
 
 Q. — Were you present in 1875 when a lease to Harmer was made ? A. — I think not. 
 
 Q. — Did you act in any way for, or as agent of Mr. Fleming, in making that lease? A. — I 
 think not. 
 
 Q. — Now, since the time of the letter received from him of October, 1874, (long letter) have 
 you been agent for Mr. Fleming at all ? A. — No. 
 
 By Mr. Boyd. 80 
 
 Q. You knew Mr. Hall was acting for Mr. Fleming, you told me so yesterday ? A. — I 
 
 understood so. 
 
 Q So then, you did act for Mr. Fleming after this long letter was written ? A. — No. 
 
 Q. In the payment of these taxes, for one thing f A. — It was Mr. Hall wrote me. 
 
 Q. But you knew he was acting for Mr. Fleming ? A. — I heard Mr. Hall was his agent 
 
 It was not for Mr. Fleming at all that I was acting, but Ha,ll simply wrote me asking me if I 
 would draw on him for the amount. 
 
 Q. When you say you were not agent you mean you weren't appointed in writing ? 
 
 A. — No, nor any other way that I am aware of. 
 
 Q. — That is what you mean by being an agent. " My opinion of an agent is this, that ha 
 
I, 
 
 
i: 
 
 86 
 
 should he regularly appointed an agent by writing." You said that when you were examined ? 
 A.— Yes. 
 
 Q — So you aie speaking in that way when you speak of your not being an agent ? 
 A.— Yes. 
 
 Q. — You are aware there is a travailed road along the Lake front of this lot ? A. — Not the 
 Lake Shore, or what is called Goderich Road. 
 
 Q. — Along the front crossing these lots or front there is a travelled road ? A. — Not on the 
 Lake Shore. 
 
 Q. — Used before gravelled road was opened ? A. — No ; it was just a track on beach. 
 
 Q. — There is a track that people used to travel ? A. — For foot-[)assengcrs. 
 
 Q. — And waggons also? A. — No, not used by waggons; it has not been used by waggons ,q 
 along the Lake Shore 
 
 Bv Mr. Feuguson. 
 
 Q. — When you answeied nie that you weren't agent, did you mean only that you weren't 
 appointed in writing, or were you appointed agent at all ? A. — I considered I never was agent at all. 
 
 Q. — Did you do anything at all for Mr. Fleming after 1874 down to present time, barring 
 that receipt ? No, not that I am aware of at all ; I have no recollection of doing anything at all 
 since then. 
 
 Q. — Then were yon his agent ajipointed in writing or any other way during that 
 time? A — No; liad any other person written to me in the same manner to have done that 
 favour for them, draw upon them for the amount believing them to be good, I would have done ^ 
 same for anybody, not for Mr. Hall alone, but for any one that would have asked me. 
 
 By Mr. Boyd. 
 
 Q. — You are aware that you were assessed as agent of this land in 1872 ? A. — I am not 
 aware at all ; Mr. Fleming is a.sse.ssor, and Mr. McNabb is agent ; I saw that on the roll, and I 
 drew attention to it. 
 
 Q. — Can you explain at all how it is the assessment is made on this land is as resident land 
 down to 1874', and from 1875 downwards it is as.ses.sed as non-resident ? A. — No, I can't. 
 
 By Mr. Ferguson. . 30 
 
 Q. — Were you ever consulted, or did you authorize your name in any way to be put on the 
 assessment roll as agent ? A. — No. 
 
 Q. — When did you first know that your name was on the roll as agent ? A. — Twenty-eighth 
 February last. 
 
 JAMES T. CONNAWAY, sworn for defendant, testified as follows : 
 
 By Mr. O'Connor: 
 
 Q. — You are witness to lease — Hall and Sandford Fleming to Harmer / A. — Yea ; that is 
 my signature as witness. 
 
 Q. — And Mr. Hall's and Mr, Harmer's signatures are opposite these seals ? A. — Yes. *• 
 
 Q. — Did you take any part in having this lease entered into ? A.— Mr. Fleming happened 
 
i; 
 
.1 
 
 36 
 
 to be in Southampton at the particular time, ami ho asked rae if I could reccmnicnd a suitable 
 tenant, and I told him it would require considerable time to think the matter over, and I looked 
 around and couldn't get a suitable man, and finally I pitched on to Harmer ; he was a tenant of 
 mine, and I recommundud him to Mr. Fleming, and that was the understanding entered into, and 
 be got the lease with my recitmmendation ; at least I think so. 
 
 Q. — Do you say Mr. Fleming asked you to look out for a tenant for him ? A — Ye.s. 
 
 Q. — Had McNalib, as far as you know, any thing whatever to do with this leasing to Har- 
 mer. A. — Not that I am aware of; I never had any reason to suppose he was interested in the 
 matter one way (»r the other. 
 
 Q. — As agent in any way ? A. — No ; I never knew any thing of the kind. 10 
 
 Q. — You have lived in Southampton a long time ? A. — Lived about 30 j'ears. 
 
 Q. — Small place ? A. — Not very large yet. 
 
 Q. — You know Mr. McNabh well ? I knew him when he first came, and was Crown Lands 
 agent, and I never heard anything of the kind that he was an agent. 
 
 By Mu. Buyu : 
 
 Q. — Which Mr. Fleming was it asked you ? A. — David. 
 
 Q. — You had no communication with Sanford ? A. — Not that I am aware of, never. 
 
 Q. — Know this road MoNabb speaks about along lake .shore ? A. — No ; I don't know any- 
 thing about that road ; there is a street they call South Street. 
 
 Q. — Tiie road along the front of the lot I mean ? A. — Yes ; gravel road. 
 
 Q. — Along the lake front ? A. — I don't know anything about that at all. "" 
 
 Q. — Were you at the sale ? A. — Yes 
 
 Q.— The tax sale ? A.— Yes. 
 
 Q. — Why is it a smaller portion of the lots was not taken for the taxes ? A. — I don't know ; 
 I can give you the reason I didn't buy them ; I knew they belonged to Mr. Fleming, and I took 
 it for granted if I bought them tliey would be redeemed, and of course I wanted to invest in land 
 that would not be redeemed. 
 
 Q. — It was well known the land belonged to Mr. Fleming ? A. — So far as I was concerned 
 it was well known to me. 
 
 Q. — And to others ? A. — I don't know about that ; I can't speak for others. 
 
 Q. — Are you the man who took away hay from the land. A. — Yes. 
 
 Q.— Did Mr. McNabb follow ? A.— Yes. 
 
 Q, — You have become reconciled to him since then .' Were you pleased that he should fol- 
 low you and get $20 out of you for the hay ? A. — Yes ; specific agreement ; I promised to pay 
 him $20 for the hay. 
 
 Q. — To pay whom ? A. — Mr. McNabb I suppose. 
 
 Q, — You took the hay without paying for it ? A. — He didn't press the matter ; I was to get 
 enough for $20. 
 
 Q. — You took the hay without paying for \tf A. — I did pay for it. 
 
 Q._Who? Mr. McNabb ? A.— Yes. 
 
 Q. — You didn't go on without the understanding that you were to pay for it ? A. — No. 
 
 Q. — You didn't take it as a trespasser or spoiler at all ? No ; it is not likely. 
 
 30 
 
11 
 
87 
 
 Q. — Yiiu took it by arrangement witli Mr. McNabb? A. — Yes; but that was a long time 
 previous to execution of lease. 
 
 Q. — You maJe an anangeinent with Mr. McNabb as representing the owner of the land ? 
 A. — As owner of the land ; I gave $20 for tlie hay. 
 
 Q. — Did you make the arrangement for taking the hay before you took it witli Mr. McNabb 
 as owner of the land ? A. — Well, I can't say. 
 
 Q. — Did you ? A. — I knew the land belonged to Mr. Fleming, 
 
 Q. — Did you ? A. — I can't say. 
 
 Q. — You didn't take tlie hay as a trespasser, but you made an arrangement with McNabb as 
 representing the owtier of tiie land? A. — I took it for granted he had authority to do so. 
 
 Q. — Did you make an arrangement witli McNabb for the hay before you took it, representing 
 the owner of the land .' A. — I knew perfectly well the land belonged to Mr. Fleming. 1" 
 
 A. — If you .say you don't know what " repic.senting " means I'll explain ? A. — I know per- 
 fectly well what it means ; 1 took it for grantt<l he liad authority to sell the hay. 
 
 Q. — And you made the ariangement with him as representing Mr. Fleming ? A. — I suppose 
 it was so. 
 
 By Mr. O'Connor : 
 
 Q. — How long ago was this ? A. — Several j'ears previous to execution of lea,se ; but with 
 respect to exact date I can't remember. 
 
 Q. — Would it be ten years before that ? A. — I don't know ; I can't say ; I suppose it would 
 be 8 to 10 years ; but it was several years before execution of lease. 20 
 
 By Mr. Boyd: 
 
 Q. — Wasn't this hay business in year '74 ? You have undertaken to swear it was several 
 years before the lease. A.— I think it was ; that doesn't state the exact period. 
 
 Q, — I want you to state the exact period ? A. — I can't do it. 
 
 Q. — I want you to tell me whether it was not in '74 ? A. — I can't tell you. 
 
 Q.. — I read you now letter June '74, wiitten by McNabb, in which he says, " I have since 
 been looking for Connaway and only this eve caught him at home, and I presented your order 
 which he said was correct," etc., etc. ; that was '74 ; have you any doubt it was in '74 ? A. — 
 According to that statement it would be '74. 30 
 
 By Mr. Ferguson : 
 
 Q. — Know how long it was after you got the hay before you paid for it ? A. — A very short 
 time. 
 
 ROBERT FLEMING, recalled. By Mr. Ferguson : 
 
 Q. — How far have 3'ou searched minutes of Council ? A. — From beginning of April, '75, till 
 April 3rd, '77. 
 
 Q. — And have you found any record of any application made by Harmer ? A. — There is no 
 application made by Harmer, but there are two letters from Southampton Council about opening 44 
 up some road. 
 
 ^ 
 
il 
 
 38 
 
 Q. — There is no record cf Harrner at all ? A. — No record of Harmer ; I think Hariner has 
 been applying to Southampton Towii8lii|) ; this land is included in Town Plot, Southampton ; 
 Saugcon waiitd Southampton to pay half expenses of opening road up — Mr. O'Connor puts in 
 petiti(m '7S to the Corporation Council — I have suarclied records of Council from 75 down to 2nd 
 July, 77, when I was appointed Clerk, and since that time the only application was the ono of 78 
 
 Defence closes. 
 Plaintiff recalls MR. HAllMER. 
 By Mr. Boyd : 
 
 Q. — You know about the road Mr. NcNabh spoke of, along the lake front of the.<}e lots ? 
 A. — There in a road along there. 10 
 
 Q.^-How long lias it been travelled ? A. — Before I came ther'?, and I have been there 10 
 years. 
 
 Q. — Has it been travelled over since ? A. — People go up and down. 
 
 Q. — Is it used for waggoii.s and horses ? A. — Yes. 
 
 Q. — As well as for passengers ? A. — Yes. 
 
 By Mr. Ferguson : 
 
 Q. — Mean to say waggons were driven along that road on lake shore ? A. — It is not on the 
 lake shore, it is inside the lake ; it is sandy. 
 
 Q. — Then Mr. McNabb i-j nearer when he says it is not a waggon road ? A. — An old 
 tiuvelled road ; we don't make it a practice, only sometimes ; people go down that way ; you 2q 
 can't go down a week but what we .see waggon tracks. 
 
 Q. — Sometimes people go through it with waggons ? A. — For a near cut. 
 
 By Mb. Boyd : 
 
 Q. — Does it go as near lake shoie as not to go on bank ? A. — Sometimes 50 or 60 feet from 
 the banks ; sometimes further, and sometimes no further. 
 
 By Mr. Ferguson : 
 
 Q. — Is it improved, graded, or anything done on it ? A. — No ; culverts made across it like, 
 over the stream. 
 
 Q. — Occasionally a waggon goes through ? A. — Oh yes, often. 
 
. 
 
1! 
 
 EXHIBITS FILKD AT TRIAL. 
 
 EXHIBIT ' A." 
 
 Crown Patent to Samltbrd Floniing, dated '^4tli March, 1H74, all tliat parcel or tract of land, 
 situate, lyinjj, and beiny in tlio Townslup of Sangeen, in the County of Bruce, 104 acro.s, being 
 lots 57 and 58, in tiie lake range of tlio saitl Township of Sauyeen ; reserving the road allowance 
 along'the banks of Lake Huron, ami fiee access to the shore thereof.for all vessels, boats and personn. 
 
 EXHIBIT " B." 
 
 Crown Patent to Sandford Fleming, dated 8th October, 1874, all those parcels or tracts of 
 land, 207 acres, being lots 59 and 00 lake range, Saugeeii ; leserving the road allowance, along 
 the top of the bank of Lake Huron, and free access to the shore theieof, for all vessels, boats and 10 
 persons. 
 
 EXHIBIT "C." 
 
 No. 415. Mr. Sandford Fleming, Mr. Alex. McNabb, agent; amount of your assessment, $16.48. 
 
 ToWN.SHiP OF Saugeen, 17th December, 1874, 
 
 Sir, — Take notice that your taxes for the year 1874, are as undermentioned, and if you 
 neglect to pay the same foi* fouiteen tiays, after this my demand for the same. I shall be obliged 
 to levy the same by the distress and sale of your goods and chattels. 
 
 (Signed,) JOHN WALLACE, 
 
 Collector, Dumblavx P. 0, 
 
 The rates are as follows : County Rate, 8J mills on the dollar, $14.00 S14 06 20 
 
 2 School Rates, 3 mills on the dollar, S4.94 ; Statute Labour, unperformed, 5 days, $5.00 9 94 
 
 Arrears of taxes on occupied lands, nill Total $24 00 
 
 Received Payment, Collector. 
 
 The following Endorsement is on tliis Exhibit. The taxes mentioned in this notice, are on 
 the undermentioned property, lying in the Town<hip of Saugeen, Lots 57, 58, Con. L. R. 
 
 11^ 11 
 
 "I 
 
1! 
 
 \ 
 
1' 
 
 iO 
 B^XHIIUT "D." 
 
 No. 409. Mr. David Floininf,', A. McNiihb, ayciit, uinount of your anmssinont, S17 ')!). 
 
 'I'OWNSHU' OK Hauokkn, Ducviiilmr 17tli, 1«7+. 
 
 SiK,— Take notice that your taxcH for tlio year 1,S7K i'" ii« undcnniMKioiKvl. aivl if you 
 ncglt'ct to pay tlio samu lor fourtouii days afli-r this my dounml for tliu auw), I shall oo ohligud to 
 Jovy thu saiuo Ity tho distrost, aud saio of your j^oods aud chattels. 
 
 (Siijnod,) JOHN WALIACH:. 
 
 Volkcior Dam-lilam! P. 0. 
 
 The Rates are as follows : Comity lUte «! inill-< on tho Dollar, Sl4.!).')i Sl> 9i>i 10 
 
 2 School Rates, 3 mills on the Dollar, !j.").27i '. i^'iitute Labour, unperfornied, .") days, ig.yOO 10 27i 
 
 Arrears of Taxes on occupied lands nill Total 825 23 
 
 Received Payment, Collector. 
 
 p:nd()rHed on this K.\Iiihit is the follo.viny: The taxes mentioned in this notice are on tho 
 undcrmcntioiieil property, lyiny in the Township of Sau.i,'een, Lots .V.), GO, Con. L. R. 
 
 EXHIBIT " K." 
 
 No. 1-tO. $54.08, Taxes. Original for party paying taxes, County of Bruce. 
 
 TuicAsi'UKii's Officb, VVAi.RtUToN, 2Uth May, 1875. 
 Received from A. McNal)l), Esq , agent for D. Flomitig, Esq., the sum of S.j4.08, being Taxes 
 due on the following lands lor the period named: 20 
 
 Lot 57, Lake Range, Township of Saugeen, lS7i ^^12 31 
 
 ,. 58, ,. n .. .. 1402 
 
 ,1 59, M " .. " 13 '-^'^ 
 
 n GO, -< " " " ^^ ^' .». . „„ 
 
 $54 08 
 
 Signed in Triplicate, 
 
 (Signed,) JAMES G. COOPER, 
 
 Treasurer County of Bruce. 
 
 EXHIBIT " F." 
 
 Southampton, 22nd May, 1875. 30 
 
 Deau Sir,— I duly received yours of the 11th inst, enclosing Collector's notice for taxes on 
 
 lots 57 to 60, lake range, Saugeen. I now enclose Treasurei's receipt for $54.88, for which I hava 
 
 drawn upon you through the Merchant's Bank, Walkerton, including commi.saion and postage, 
 
 say $55. Taxes, $54.88 ; bank and stamp, 5Gc. ; postage, 6c S55 50 
 
 Yours, truly, 
 
 (Signed.) A. McNABB. 
 
 James Hall, Esq., M. P., Peterboro'. Receipt for Saugeen taxes. 
 

 41 
 
 EXHIBIT " G." 
 
 Southampton, lltli August, 1875. 
 
 My Deah Sir,— I duly received yours of the 22iid ult. ; since then I saw Sproat and read 
 
 him your letter to shew the blatne of delay was his, not your brother's. I tru.st the affair is, ere 
 
 this, closed up. I return vvr brother's letter, 1 suppose l)y this liuio he has leturned to Ottawa. 
 
 I received Inst night the '.'i.closed $20 from Conway, which I hasten to forward. When the 
 
 Saugeen lauds are placed in Blaikie & Alexander's liands for sale, I tliink it would be well that 
 
 reference be made to John Ea.stwood, Port Elgin, av.d also to me; to the former, B. &, A. sliould 
 
 write, stating terms and conditions of payment, and should he find a purchaser, promise a certain 
 
 sum, say $50. All well; with kind legards to Mrs. Fleming. ,„ 
 
 I remain, yours truly, 
 
 (Signed,) A. McNABB. 
 
 D. Fleming, Esq., Toronto. 
 
 EXHIBIT "H." 
 
 Southampton, 19th June, 1874. 
 
 My Deau Sir, — I have to ajiolngise for not sooner replying to yours of Srd inst. I have 
 since been looking after Mr. Conway, and only this evening caught him at home. I presented 
 your order, .vhich he said was correct, but was oul of funds and unable to pay, but jjromised to 
 pay .soon. I shall keep at him. With regard to value of farm lots, I have consulted parties tvlio 
 I consider good authority, and they agree that ?;l() an acre is their value, that is $(5,000 for the 20 
 200 acres. Mr Ellis sold his lot, No. 51, this week for §25 an acre — a poor hou.se, <food barn 
 shed, &c. ; about 40 acres cleared. There is a large portion of the lot below the bank on the lake 
 shore very poor land. Your lots are lietter !aii<l and better situatii.n. Farm lands are in great 
 demand, and the crops are very promising. I tiiink if you make it known you wish to sell, pur- 
 chasers will be found. I am very anxious to know if Mr. Sproat has carried out his promise aa 
 regaids the payment of the 8,S,000 to the Bank to meet your discharge. Mr Austin, the En<'ineer. 
 is here to-night, inspecting the works, with the view, I suppose, of giving the contractors an 
 estimate. Yours truly, 
 
 (Signed,) A. McNABB. 
 
 D. Fleming, E.sq , Toronto. 30 
 
 Abbie has returned home, in prospect of employment on the Pacific Railway. I had hoped 
 Homething would have ca-st up ; it seems th.ere is no opening. 
 
 EXHIBIT "J." 
 
 Southampton, 5th March, 1874. 
 
 My Dear Sir, — Since writing the other day I have ascertained that the hay was cut and 
 removed off your farm lots by Mr. Conway and a man named Weatherald, a baker here, said to 
 be under your authority. I can make au arrangement with a respectable pei"son here to take 
 
I 
 
 « 
 
I 
 
 42 
 
 charge of the land and to pay taxes, &c., for tl)e current year and during time of lease. I will see 
 the conditions are carried out. I don't know how last year's taxes stand. I sent tiie Asses.sor'8 
 schedules last and former year to Sproat. I would write to him for information, but he would 
 not reply ; perhaps you had better drop him a line. I hope you will allow tlie persoti I have in 
 view to have a lease of the lots. Nothing new. Every a|)pf;arance of early opening of navi- 
 gation. Our harbor works are making poor progress. Our kind regards to Mrs. Fleming* 
 
 Yours trul}', 
 
 (Signed,) A. McNABB. 
 
 D. Flemino, Esq., Toronto. 
 
 EXHIBIT " K." 
 
 10 
 
 Southampton, 4th April, 1874. 
 
 My Dear Sir, — I send assessment schedule for 1873 and '74 ; please notice memo, on the 
 back of the latter, arrears of taxes not paid. You need not be ■ urprised at the Goderich contract 
 bein" given to Moore & Co., when you hear that McLay, the Registrar, is connected witli them — 
 reward for election services. Excuse haste. 
 
 Yours truly, 
 
 (Signed). , 
 
 A. McNABB. 
 
 D. Fleming, Esq., Toronto. 
 
 EXHIBIT "L." 
 
 Southampton, 30th April, 1874. 20 
 
 My Dear Sir, — Mr. Tully, who I expected would have leased your farm lots, has backed 
 out ; it will require a large expenditure to fence the clearing and open up a road up the boundary 
 to the Goderich Road. Parker and Diivios will not allow the old road through their land to be 
 travelled. To-day a man named Sibbard, employed as trackman on the Railway, called to 
 enquire about the land. He will take it for (10) ten years for the taxes and statute labour. 
 Please let me know what answer I shall give him. We noticed your name in the Olobe lately 
 in connection with the Toronto Water Works ; did you receive the appointment referred to. 
 Wo are all well. With kind regards to Mrs. Fleming. 
 
 Yours truly, 
 
 David Fleming, Esq., Toronto, 
 
 (Signed), 
 
 A. McNABB. 
 
 30 
 
 EXHIBIT " M." 
 
 Southampton, 12th Feb., 187 <•, 
 My Dear Sir, — I am reminded by your postal card I shoul'l have written some time since 
 about the laud taken for right of way, but I put off, expecting every day to hear some news 
 
n: 
 
 I; 
 
 43 
 
 either from Walktsrtoii, or Goderich, but have hoard nothing. In con<equence of the three lots 
 being so cut up, I considered the County should pay at the rate of 8>0 pt3r acre ; the line entera 
 at the corner between 57 and 58, making three gores, and passes through your clearing. I think 
 if Sproat insists ths' Company will pay above price. I have not hoanl who has got the Goderich 
 contract, have you. Tom is pushing on the work here all his own way; no one to oversee; 
 there will be a great saving of iron and stone. All well. With kind regards to Mrs. Fleming, 
 
 Yours truly, 
 
 (Signed), A. McNABB. 
 
 D. Fleming, Esq. ,Toronto. 
 
 10 
 
 EXHIBIT " N." 
 Plan of railway over lots in question. 
 
 EXHIBIT " O." 
 
 Lease of Lots 57, 5S, 59 and GO, Lake range, Saugeen, 400 acres less the road used by 
 W. G. and B. Railway, Sandford Fleming, by liis agent, James Hall, to Henry Harmer, five years 
 from Ist May, lcS75, $65 a year, payable on 1st November, and taxes. It is mutually agreed 
 between the |)arties, tliat a receipt for taxes paid on said lands, shall be considered as cash in 
 payment of rent. 
 
 (Signed), JAMES HALL, and HENRY HARMER. 
 
 \\ 
 
 EXHIBIT " P." 
 
 SouTHAMPi'ON, fOth March, 1862. 
 
 My Deak Sir, — Yours of the 12th inst., inclosing transfer from your brother Henry, came 
 to hand some days ago, for which pleas • accept many tiianks. Cuiniingham, I understand has 
 left your farm, and is living in this village; he removed to avoid payment of the taxes. I am 
 at a loss to know how the Department could have told you anything about the improvements on 
 your lots, as I never reported them. I think the clearing is large ; it will be a pity to allow theq/v 
 property to go to ruin. 
 
 Yours truly, 
 
 (Signed), A. McNABB. 
 
 S. Fleming, Toronto. 
 
 EXHIBIT " Q." 
 
 Southampton, 18th Dec, 186G. 
 My Dear Sir, — Mr. Smith, who leased your farm lots, gave them up last summer, and I 
 prevailed upon a very good man to take an assignment of the lease, but ho finds the taxes so 
 
I 
 
I[ 
 
 44 
 
 high, caiisoJ to some extent by tlic gravel road expemliture, tliat lie called to-day to give them 
 
 up. Talking the matter over, I think he will take them for a term ofyeai'S (say five), and will 
 
 clear up aliout ten acres ot" old ^lasliiiig, and straighten up the rnhhish. Slioiili] yon agree to 
 
 this, he will pay up this year's taxes, $39, road work, $G St-'). Let mo hear from you in reply, 
 
 soon as possible, :io that I may if possilile secure tiie payment of tlie taxes. I attended lastspring j,;. 
 
 and snuinier meetings at Fergus and Mount I'^lrest, to advance the Guelph and Sangeen Railroad, 
 
 but all ended in talk among the pulilic men that appeared to take intert^st in the matti'r. I 
 
 traced a large amount of di.shone.sty, hence the failure. We are all well, and unite in kind 
 
 regards. 
 
 Youi-s truly, 
 
 (Signed), A. McNABB. ^^ 
 
 Sandford Fleming, Esq. 
 
 EXHIBIT "R." 
 
 8ouTHAMi'To\, 10th July, 1880. 
 Dear Sir, — I am in rec(ii)t of your letter of .Stli inst., relative to certain lots formerly owned 
 by Mr. Fleming. In reply, I beg to inform you that the tax deed is held by my .son. As [ have 
 no say in the matter, I have handed him your letter ; he writes to y(tu b}' this post. Yours truly, 
 
 (Signed,) A. McNABB. 
 
 James Hall, Esquire, Walkerton. 
 
 EXHIBIT 20 
 
 SoUTHAMl'TON, 10th July, 1.S80. 
 
 Dear Sir, — My fathei has just handed me your letter of Sth inst., respecting lands in 
 
 Saugeen for which 1 hold a tax deed. You ask how Mr. Fleming may get liack the lan-l. 1 may 
 
 state that I consider the block worth eight thousand dollars (."jpS.OOO), but am prepared to accept 
 
 half of that sum, .say four thousand (??l.,OtiO), payal)le in full, or cash two thousand dollars (8:2,000) 
 
 and a mortgage on the land for tiie balance, payable in five (.')) yeara, with interest at eight (S) 
 
 per cent. Youra tiuly, 
 
 (Signed,) JOHN M. McNABB. 
 
 James Hall, Esq, Walkerton. 
 
 EXHIBIT "T." 30 
 
 Peterboro, 11th May, 1875. 
 My Dear Sir, — Would you have the kindness to settle the taxes on Mr. Fleming's lots, iu 
 Saugeen, and draw on me at sight for the amount through any of the bank.s here ; we have four 
 of them — the Bank of Montreal, Toi-onto, Ontaiio, and Conmierce. I only received from Mr. 
 Fleming the enclosed last night, and don't know what may be the amount due now ; but what- 
 ever it is, your draft for the amount will be duly houoreil, and I will consider it a great favour. 
 I am, dear Sic, yours truly. 
 
 (Signed,) JAMES HALL. 
 
I 
 
45 
 
 EXHIBIT " U." 
 
 Ottawa, 8th May, '7'). 
 
 Dkar Mr. Hall, — The onclosfil has licm lying on my table for a gitod longtime; I wish 
 cr\ much you woukl attend to it. I liave patent for botii lots. I have been extremely busy, 
 and am still, getting the surveying parties away. All well. Yours truly, 
 
 (.Signed.) SANDFORD FLEMING. 
 
 EXHIBIT " V.' 
 
 VValkkuton, 2.5th May, '7o. 
 
 Dear Sib, — Your favor of the 22nd ir.st. has this day had attention, and I enclose receipt in 
 
 yoiM- letter to Hall. Draft amount to S-^') 50. All well here except Adam, who is now, I am IQ 
 
 happy to say, rapidly recovering from measles. Eliza has been a little poorly for a couple of days. 
 
 I am, yours truly, 
 
 (Signed,) A. SPROAT. 
 
 A. McNahb, Esq. 
 
 EXHIBIT "W." 
 
 VValkkuton. Sth July, '80. 
 
 Dear Sir, — You may supi>ose I was surprisiiil when informed by Frank Fleming that Mr. 
 Fleming's land had been sold for taxes, tliat y«<u were the purchaser, and that the time for 
 redemption was passed, as tlu* lots have been under ni}' care, leased tor Harmer, who engaged to 
 pay taxes, and assured me that it had been done, I was the more surprised. As I should not 20 
 have trusted to Harmer, but seen the receipts, as I am altogether and only to blame in this mat- 
 ter, I woukl like to know how you feel in the matter, and how Mr. Fleming may get his land 
 again. I intended to see you ere this, and hope to have the pleasure next week. Please let me 
 hear from you in the meantime, and oblige yours truly, 
 
 (Signed,) JAMES HALL. 
 
 EXHIBIT " X." 
 
 ;^ CoLLlNOWOOD, 17th June, 1880. 
 
 My Dear Sir, — My son goes by the steamer to-night to Owen Sound, and thence to Saugeen, 
 to inspect my land, and empiire about taxes being pai.i. If he be at a loss where to enquire, 
 perhaps you will kindly inform him. With kind regards, yours faithfully, 
 
 (Signed,) SANDFORD FLEMING. ^ 
 
 A. McNABB, Esq. 
 
I[ 
 
 4G 
 
 KXHIMIT " Y." 
 
 Ottawa, 21st October, is?-*. 
 
 My I^KAn Mil. McNaiim, - (hi receipt (ifydur letter of tlie Cth 1 «ent it to my hiullu-i' Davi.l, 
 in orliM' to ascertain from liim if 3'oii Iwul Rti\ claim, le;^al, e(iiiital)le or moral, on me in eoniiuc- 
 tioti with the unfortunate affair to wliicli yon allii<l(>. As far as I can nnderstaml tlie matter it 
 is tliis : You anil my lirotln-: lunl ilt-aliiij^s toj^ctlier, and your Hon-in-lasv, Mr Sjiroat, was in somo 
 way mixetl u|> in tliem. The relations of flii! si'Vi lal parties do not however appear to huve been 
 veiy wi'll delined, at least so far as I Iiave yet learned. Amon;^st otiier matters my brutlier wan 
 induced to ^o into ijaitnersliip witli one Hall. Voii were instrumental in part, it not wliolly, in 
 brin^iny about tlie partner-ilii|) You involved yourself to a considerable e.\tent tinanei dly in iq 
 cunnection with it tiall turned out a bad |)artnei-. tlie work in which they were i-hi^a;.;ed in 
 turned out disastrously. You lost a coUHideiablc sum of money, my brother lost everytidny ha 
 hail, and the way of livinj^r which he previously enjoyed ; all his property having been made over 
 to the bank, and he left dependent to a ceriain e.xlent on me foi' the means of living, a«id wholly 
 dependant when out of a situation. The liank wished to convert the |)roperty obtained from my 
 broi.lu'r into money. 1 was applied to and named the full amount 1 would give for it. and in thi.s 
 way ni}' brother's property has pa.sst'd into my liandH, and my brother has olitained a discharge 
 from the Bank. But he has been left entiiely penniless by the transaction. This in lirief is a 
 history of the matter, as far as 1 know it. But I do not see how in any way 1 am bound to Ixjar 
 the losses you have sustaineil. Neither you nor my brother asked or obtained any advice from on 
 me, before you led into the birsiness. 1 knew nothing of it until all tlio mischief wa.s done. My 
 brother had claims on nie oidy as a brother, and only an said <lid I come to advance money on 
 property I did not want, so as to get for him an honorable disehaige from the Bank, and only a.s 
 such have I for the last year been advancing him the means of sustenance. You will surely see 
 on reflection, that 1 cannot in any way be expected to pay your losses. If the law of honor or 
 any other law, hold me liable for all lo,sses sustained by third parties, in connection with every 
 one of my relations, with or without my knowledge, you will admit that my re-sponsibilities 
 
 would be indeeil more than any man would care about. 
 
 Yours very truly, 
 
 (Signed,) SANDKORU FLEMING. 30 
 
 EXHIBIT "Z." 
 
 SouTHAMiTON, 13th Dec,, 1878. 
 
 Dear Willik, — Many thanks for you kindly consenting to attend the tax sale. I enclose a 
 li.st of tlie lots we wish you to purcha.se and draft to pay the Treasurer, should the L. Range lots 
 in Saugeen lie not redeemed bid down to (10) ten acres in each lot, they front on and are posted 
 on the lake shore I want to get the 10 acres taken off the rear. Be careful not to take the front. 
 Buy all in your own name. I don't want to be known, so please buy in your own name. Keep 
 the list strictly private. You can return any draft not required. • 
 
 Youi's sincerely, 
 
 (Signed,) A. McNABB. 4Q 
 
IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 /. 
 
 {■/ 
 
 
 
 ^s. 
 
 I'^y 
 
 Zc 
 
 ^ 
 
 1.0 
 
 1.25 
 
 Hi m 
 
 2.2 
 
 I.I f.*^ 1^ 
 
 U_ il.6 
 
 V] 
 
 VQ 
 
 -i^ 
 
 
 CM ^ 
 
 %' 
 
 V 
 
 /A 
 
47 
 
 EXHIBIT « A 2." 
 
 Tax lots to be purchased : 
 
 Eklerslie, No. 33, U Con. 100 acres, bid down to 50 acres $21 08 
 
 Saugeen, 12, 14 " 100 " " " 50 
 
 57, L. R'ge 81) " " "10 
 
 58, 100 " " " 10 
 
 59, 100 " " " 10 
 
 60, 100 " " " 10 
 
 $292 81 
 Crown Lands draft. . . .!j)101 52 
 
 " 71 25 
 
 Ontario Bank 72 00 
 
 Merchants Bank 49 00. — $293 77. The above draft should be cashed at par. 
 
 52 
 
 28 
 
 48 
 
 80 
 
 57 22 
 
 5G 
 
 90 
 
 56 
 
 53 
 
 10 
 
 EXHIBIT " B 2." 
 
 Treasurer's certificate of tax sale. County of Bruce, to W. A. McLean, of Lot GO, Lake Range, 
 Saugeen Township, 103 acres, for $5().53, datutl 17th December, 1878. Assignment endorsed on 
 back of same — W. A. McLean to John M. McNabb. 
 
 EXHIBIT " C 2." 
 
 Treasurer's certificate of tax sale. County of Bruce to W. A. McLean, ol Lot 59, Lake Range, 20 
 Saugeen Township, 104 acres, for $56 99. Dated I7tii December, 1878. Assignment endorsed 
 on back of same — W. A. McLean to John M. McNabb. 
 
 EXHIBIT " D 2." 
 
 Treasurer's certificate of tax sale, County of Bruce to W. A. McLean, of Lot 58, Lake Range, 
 L igeen Township, 105 acres, for $57.20. Dated I7th December, 1878. Assignment endorsed 
 on back of same — W. A. McLean to John M. McNabb. 
 
 EXHIBIT " E. 2." 
 
 Treasurer's certificate of tax sale, County of Bruce, to W. A McLean, of lot 57, lake range, 
 Saugeen Townshij), 89 acres, for $48.80. Dated, 17th December, 1878. Assigned, endorsed on back 
 of same. W. A .McLean to John M. McNabb. 80 
 
f 
 
I 
 
 48 
 
 EXHIBIT " F. 2." 
 
 Treasueeu's Office, County of Bruce. 
 
 No. 15. $219.45, ac. Tax sale purchases; Walkerton, 18th December, 1878 ; received from 
 Mr. W. A. McLeati; the sum of $2iy.4.") ac. tax sale, purchases. Certilicates will issue 
 as soon as convenient, provided any balance found due be [)aid at notification. 
 
 (Signed,) JAMES G. COOPER, 
 
 Treasurer County of Bruce. 
 
 EXHIBIT " G 2." 
 W. A. McLEAN, to County of Bruce, tax purcliases. 
 
 Township of Sauijeeu, lake range, loi i57 •*'*^ ^'0 
 
 n 58 ^7 22 
 
 M 59 ^0 90 
 
 H GO •'>G 53 
 
 Walkerton, 17th December, 1878. 
 
 10 
 
 !19 45 
 
 EXHIBIT H. 2. 
 
 To all whom these Presents shall come. 
 
 We, Robkrt Baird, of the Town of Kincardine, Esquire, Warden, and James Graham 
 Cooper, of the Town of Walkerton, Esquire, Treasurer of the County of Bruce, send greeting. 
 
 Whereas, by virtue of & warrant under the hand of the Warden, and Seal of .said County, 20 
 bearing date the twenty-fifth day of July, one thousand eight hundred' and seventy eight, com- 
 manding the Treasurer of said County to levy upon the land hereinafter mentioned, for the 
 arrears of taxes due thereon, with his costs, the Treasurer of said County did on the seventeenth 
 day of December one thousand eight hundred and seventy-eight, sell by public auction to William 
 A. McLean, of the Town of Walkerton, in the County of Bruce, Attorney-at-Law, those certain 
 parcels or tracts of land and premises hereinafter mentioned, at and for the price or sum of two 
 hundred and nineteen dollars and forty-five cents, of lawful money of Canada, on account of the 
 arrears of taxes alleged to be due thereon up to the thirty-first day of December, one thousand 
 eight hundred and seventy-seven, together with costs. 
 
 Now Know Ye that we, the said Robert Baird and James Graham Cooper, as War- ^^ 
 den and Treasurer of the said County, in pursuance of such sale and " The As.sessment Act," and 
 for the consideration aforesaid, do hereby grant, bargain and sell unto John M. McNabb, of the 
 Village of Southampton, in the County of Bruce, Gentleman, A.ssignee of the aforesaid William A. 
 

 1 
 
 ^■A 
 
I 
 
 51 
 
 EXHIBIT " M 2." 
 
 Copy of Koportcr newspaper, published at Kiiicanlino, County of Bruce, dated 17ch October, 
 1878, showing advortisement of County Troasiiitin saii! of lands for taxes for lS7iS, to be held 
 on 17th December, 1878, in which lots 57, 58, 59, and (30, Lake Range, were included. 
 
 EXHIBIT " N 2." 
 
 Copies of notices sent by collector of Saugeen Township to Great Western Railway Com- 
 pany for the year 1873, referring to lots in qutstioii : 
 
 List of lands given in detail including acreage : — 
 
 , ro Lake Range, Saugeen, Lot 57 0-40 
 
 f-S " " " " 58 2-30 
 
 g 13 '• " " " 59 2-30 
 
 H S; " '• " " (jO, 2-30 
 
 10 
 
 EXHIBIT "O 2." 
 
 Copies of Assessment Notices sent by Assessor of Saugeen to Great Western Railway for 
 1874: 
 
 144 tVo acres in Saugeen Township, assessed SI 106 95 
 
 7.52 " " Port Elgin, " 75 05 
 
 $1182 00 
 
 1875 
 
 EXHIBIT " P 2." 20 
 
 Copies of Assessment Notices sent by Assessor of Saugeen to Great Western Railway for 
 
 144. 71, acres in Saugeen Township, as.sessed at $110(5 95 
 
 EXHIBIT " Q 2.,' 
 
 Copies of Assessment notices sent by Assessor of Saugeen to Great Western Railway for 1876, 
 146.71 acres in Saugeen Township, assessed at $2000. The extra 2 acres were purchased from 
 Thomas Turners, Lot 27, Con. 4, Saugeen. 
 
][ 
 
 52 
 EXHIBIT " R 2," 
 
 Copios of notice sent by Collector of Saugeen T<jwn.ship to Great Western Railway for the 
 year 1877 : 
 
 IIG, 4G acres, assessed at $1500 00 
 
 List of Lands given in detail, including Acres. 
 
 Lot 57, Lake Range, Saugeen ^^ 
 
 u gg << << " 2 30 
 
 « KQ <• « " 2 30 
 
 u gQ <• <• " 2 30 
 
 EXHIBIT "S2." 10 
 
 Copy of Assessment Notice, (W. Murker, jinir.,) Assessor, Saugeen Township sent to W. 
 G. & B Railroad, 144 acres, assessed at $2,604. 
 
 EXHIBIT " T 2." 
 
 Letter from John Wallace, collector of taxos for year 1S75, Saugeen Township, to G.W.Railroad, 
 claiming for taxes on assessment of $2,G()4 — S41.*}2. 
 
 EXHIBIT " U 2." 
 
 Letter from John Wallace, Collector, Saugeen Township, for year 1876, claiming for taxes 
 on $2,604— S39.35. 
 
 EXHIBIT "V2." 
 
 Copy of Assessment Schedule (W. Murker, jr.) Assessor, Saugeen Township, for 1876, sent to 20 
 G. W. Railroad, 146 71 acres assessed at S2,(i44. 
 
 EXHIBIT "W2." 
 
 Letter from John Wallace, Collector, Saugeen Township, dated 26th March, 1877, claiming 
 from G. W. Railroad on assessment of $2,035 — $38.22. 
 
I 
 
 m 
 
 |i| 
 
1' 
 
 49 
 
 McLean, his heirs and assigns, f ,1 those certain parcels or tracts of land and premises containing 
 four hundred and one acres, be the same more or less, being composed of Lots numbers Fifty- 
 fieven, Fifty-eight, Fifty-nine and Sixty, in the Lake Range, in the Township of Saugeen, and 
 County of Bruce. 
 
 Ln WiTNKss WliKHEOF we, the said Warden and Treasurer of the said County, liavc liere- 
 unto set our hands and affixed the Seal of the said County, this Twentieth day of December, one 
 thousand eight liundred and seventy-nine, and the Clerk of the County Council hath counter- 
 
 signed. 
 
 [L.S] 
 
 Sgd 
 
 ROBT. BAIRD, 
 
 Warden. 
 
 10 
 
 Sgd 
 
 JAMES G. COOPER, 
 
 Treasurer. 
 Countersigned 
 
 Sgd GEO. GOULD. 
 
 On tlie above deed tliero is endorsed the following certificate : 
 
 I certify that the within instrument is duly entered and registered in tlie Registry Ofiicc for 
 the County of Bruce in Book B, for Township of Saugeen, at 2 o'clock p.m., of the Gth 
 January, A. D., 18S0. 
 
 No. 2223 (Sy<l.) CHARLES ASTLEY, 
 
 Depy. Regr. 20 
 
 EXTRACT " J. 2." 
 
 Abstract of assessment of lots ."i7, 58, 59 and (iO, Lake Range, Township of Saugeen. 
 
 Assessed Value 
 Assessed to David Fleming 200 Acres §1330 00 
 
 Alcxaii.Ur Fh niing 200 „ 1300 00 
 
 David Fleming 200 „ 1100 00 
 
 Alexander Fleming 200 „ 1130 00 
 
 Elias Smith, D. Fleming, owner 200 „ 1100 00 
 
 A. Fleming, owner 200 „ 1130 00 
 
 Elias Smith 400 ., 2280 00 30 
 
 Elias Smith, 400 acres, real, $1,850, personal, $3.00 2150 CO 
 II Hiram Parker, tenant, 400 Acres 2150 00 
 
 II Hiram Parker, Fleming, Toronto, owner 400 n 2150 00 
 — . Fleming, Toronto, 400 i. 2150 00 
 
 M H. Parker, tenant, J. Fleming, owner, 400 n 2150 00 
 
 1862 
 
 Lotf 
 
 J r?d and 00 
 
 II 
 
 
 57 and 58 
 
 1803 
 
 
 59 and 60 
 
 II 
 
 
 57 and 58 
 
 18G4 
 
 
 59 and 00 
 
 II 
 
 
 57 and 58 
 
 18G5 
 
 
 57, 58, 59, 60 
 
 186(i 
 
 
 57, 58, 59, 60 
 
 1867 
 
 
 57, 58, 59, 60 
 
 1868 
 
 
 57, 58, 59, 60 
 
 1869 
 
 
 57, 58, 59, 60 
 
 1870 
 
 
 57, 58, 59. 60 
 

 ' 
 
 ^ 
 
I 
 
 " 
 
 400 
 
 It 
 
 21 (iO 00 
 
 400 
 
 II 
 
 210.') 00 
 
 3!)2 
 
 i( 
 
 .•}i:io 00 
 
 207 
 
 It 
 
 17.')0 00 
 
 Idi 
 
 It 
 
 l(i»-« 00 
 
 803 
 
 II 
 
 :i<):u> 00 
 
 401 
 
 11 
 
 4411 00 
 
 401 
 
 II 
 
 4411 00 
 
 302 
 
 It 
 
 4:{21 00 
 
 50 
 
 1871 M 57, •')«, ')!), 0OAwat'8sed to David Flcminj,', owner, 
 
 1872 M '}7. 58, 59, (50 .. D. Flomiiig, owner, A. McNabb, agent, 400 
 
 1873 M 57. oH. 59, CO 
 
 1874 .. 59, ("0 M M I, ., 
 II M 57, 08 II SaiKllunl Fleming' 
 
 1875 .. 57, 58, 5!»,G0 Assessed on N(>ii-He.sidont ll(»ll 
 1870 M 57, 58, 59, GO n it m 
 
 1877 M 57, 58, 59, 00 ,. n m 
 
 1878 .1 57, 58, 59, (jO n ti •' 
 
 Great Wesitern Railway Company assessed for j'„ nciea for tiack through eaid lots in 1877 
 and 1878, in previous years tlie company were assessed for track, througii township on lots 
 mentioned. l*^ 
 
 I, Robert Barrio Fleming, Cicrk of the Township of Sangeen, do hereby certify, that the 
 above is a correct return of the assessments of lots No. 57, 58, 59 and (iO, Lake Range, Town.ship 
 of Saugecn foi the years 1802 to 1878, both years inclusive, and that the said lots wore liable to 
 be sold for taxes in the years 1808, 1871, 1874 and 1878, as returned by the County Treasurer, 
 Township of Saugeen, 28th February, 1881. 
 
 (Signe.i,) ROBT. B. FLEMING, 
 
 Cierk, To'wnshrp of Sauyecn. 
 
 EXHIBIT '■ K. 2." 
 
 20 
 
 List of lands in the municipality of Saugecn, for which a Warrant for Sale was issued 25th 
 July, A. D. 1878. Concession or Street Lots or Parts of Lot«i 
 
 Lake Range, 57, 58, 59, 60, 
 
 xiv. 12. 
 
 Dated, at VValkcrton, the 30th day of January, A. D. 1878. 
 
 (Signed,) JAMES G. COOPER, 
 
 TreaHurer, County of Bruce. 
 
 EXHIBIT "L. 2." 
 
 Lands liable to be sold for taxes in the Tovnship of Saugeen, for the year 1878, are lots 57, 
 58, 59 and GO, Lake Range, and lot 12, Con. 14. I do hereby certify that I have examined all the 30 
 lots in the list named, and to the best of my knowledge believe none of the said lots have become 
 
 occupied. 
 
 (Signed,) W. MURKER, Jr. 
 
 Assessor. 
 
I 
 
 li I 
 
 iff! 
 
! 
 
 08 
 
 EX [I I HIT "X 2." 
 
 CopyofAMsoHHinont Notice for 1877. IVoin W. Murker, jun., Assessor. Snugcon TownHliip, 
 sent to 0. W. Ilailniail, Hliowing 115.70 acres assesHt'd afc S2.()35. 
 
 EX 111 HIT "Y2." 
 
 CcrtiHcatc) from Treasiirci-, County of Hnice, (iate.l 27th April, 1881, that " A"— (Z2)— i.s a 
 correct copy of Waidcii'^ wanai.t lor year 1878, to .sell lau.i.s in arrears for taxes; an.l that 
 " 13"— (A3)— is a correct eoi)y of so much of the list of lands referred to in said warrant, as relates 
 to Sau^'cen TowiiHliip, 
 
 KXniHIT "Z 2." 
 
 "A"— Copy of warrant from II. Haird, Warden of Bruce, to County Treas.n-er, to sell lands 10 
 in arrears for taxes, dated 25th July, 1878, 
 
 EX HI HIT "A3." 
 
 " B "—Copy ..f list of land in Sau<,'een Township, referred to Warden's warrant to be sold 
 for arrears of taxes in 1878 : — 
 
 Lot 57, Lalv(f Range. Saugeen «4(j 3.«} 
 
 " ««. " " "^""^"^.^^!''!"^!y!^^!!*:^.' 545i> 
 
 " ^!>. " " 5423 
 
 '■ «<>. " " 5388 
 
 " 12. Con. XIV. ■• 4j) H3 
 
 EXIIIHIT "H3." 
 
 Kxtract from Ontario Cazette, and Hruce Reporter advertisement of lands for arrears of 
 taxes in Saugeen Township for the >ear 1878 ; 
 
 SO 
 
 Lake Range 
 If « 
 
 I.ol. 
 
 57 
 
 58 , 
 
 ACK'S. 
 
 . 89 . 
 . 105 . 
 
 Taxis. 
 
 . *4() 33 . 
 . 54 55 , 
 
 Costs. 
 
 . $2 47 . 
 . 2 (17 . 
 
 Tolnl. 
 . !848 80 
 
 . 57 22 
 
 Keninrks. 
 Patented 
 
 II 
 
 II II 
 
 59 . 
 
 . 104 .. 
 
 . 54 23 . 
 
 . 2 G7 . 
 
 . 50 90 
 
 •• 
 
 •1 11 
 XIV. 
 
 GO . 
 12 . 
 
 . 103 . 
 . 100 . 
 
 . 53 88 . 
 . 49 73 . 
 
 . 2 05 . 
 . 2 55 . 
 
 . 50 23 
 . 52 28 
 
 II 
 If 
 
r 
 
 I 
 
l: 
 
 54 
 
 EXHIBIT " C 3." 
 
 Southampton, 30th Nov., 1878. 
 To the Corporation of the Township of Saugeen: 
 
 Gentlemen,— I wish to (haw your attention to the disadvantages I have had to contend 
 with during the last 5 years in conseciuence of having, I may say. no road to the land which I 
 have lea,sed from Mr. Fleming. The farm is composed of 4 lots, and h.as paid taxes for over 25 
 years, during the past time has never got one cent of .statute', labour expended on South Stieet, 
 the road I hive got to travel to get to the land which I am cultivating ; sucli being the case I 
 trust you w:!' .rive my case a favouraltle consideratit)M and grant a reasonable sum to be expended 
 on said street. 
 
 I am Gentlemen, your obedient .servant, 
 
 (Signed,) HENRY HARMER, 
 
 No. of Lot 57, 58, 59, GO. 
 
 10 
 
 JUDGMENT. 
 
 THE HON. THE CHANCELLOR, J. G. SPRAGGE. 
 
 The case has been very fully and abl}- argued, and i)robably before the final disposition of 
 the case, I may desire to examine further into the case of Ley v. Wriglit, though perhaps tliere 
 is sufficient for its disposal imlepenileiitly of that. I see no reason to alter the view that I 
 expres.sed at tlie conimencement of the (;ase. Dr. Story sa3's tliat Courts of Equitv do not inter- 
 fere merely on the giound that a transaction is against good morals, or sucli as a man of honour 20 
 would not enter into. 
 
 If Courts of P]quity do interfere in cases of that kind, this would be a v-iry plaiti and 
 palpable case for interfering. I don't know that any case has ever been before me in which 
 there has been a more flagiant <lelerietiou from what I should call fair and hone.st 
 dealing between men. This man, Alexander McNabb, had for years at all events befoi'e, 
 putting out of the question the agency to the extent that has been contended for by the 
 plaintifi', he had iieen acting for the plaintifi, and had been in communication with him. 
 There had been intercourse between them in letters. There had been acts done in relation to this 
 same property by AIexan<ler McNabb, from time to time. Then this land as to which he acted 
 as agent to a certain extent, is ottered for sale, and Alexander McNabb stealthily gets some person 30 
 to bid for him. He had a right to do that of cour.se, if he chose. He got Mr. Maclean innocently 
 to bid for him, giving him very strict directions that on no account his name should be disclosed, 
 that it should be kept secret who it was was the person really bidding, and when he comes to 
 
T«?S|™?Snr 
 
 I 
 
l; 
 
 55 
 
 givo evidence, lie says he can't cnnceive any reason why he should have done this. Why, tiie 
 reason is pi! 1 pal lie. After vs hat had occurred, and his relations with the owner of the land, it 
 was palpable that ho should try to preserve from the knowledge ol" any person, especially from 
 the owner of the land, the fact that ho behind his back was purchasing this land But that is 
 not all, nor is it the extreme length to which he afterwards went, f(ir in the summer after he had 
 made those |)arties, an agent of the owner of the land comes to him, is driven to his place by the 
 person who was then tenant, and who was ignorant also of the sale. The sale had then ta!\en 
 place. 
 
 The agent informs Mr. McNabb that he is about to enter into a new arrangement, that he is 
 going to give McNabb a new lease, that a barn is to be built which will cost $2o9 ; informs him 
 of all this, and forms his p'-ans for the futuie, and McNal)b merely makes observation not 
 that he was not a good tenant but that ho was a very good man. What tlie distinction is be- 
 tween his being a very gooil man when tlio fact of the agency was talked over, and his bein^f a 
 very good tenant, I confess I cannot understand ; there is no distinction. It is a mere quil.Lle. 
 At that time he was the purciiaser. It was ripening into a title wliich it would be expected to 
 be impossible to bo controverted, and in due time ho obtains his deed. Well, with regard to that, 
 one hardly likes, unless it is noces-ary, to designate in such terms as such conduct deserves, wliat 
 the real characUir of it is. It was stealthy : it was a mean concealment of a fact : it does appear 
 to me certainly as base an act almost between parties in sucli a relation as has ever come under 
 my notice. It is urged however and I threw it out myself at the first, that what must b,' jud'A'd20 
 here is not the morality and honor of the tran;action, as put by Di'. Story in his conunentaries, 
 but whether there was a legal duty due from McNabb to the other i>arty : and there I tliink ex- 
 ists the difficulty. There had been an agency in paying tlie taxes previously to that, but they 
 were oidy isolated tiansaetions : as taxes had once or twice become due, they ha i been paid 
 through tiic agency of McNabb ; MeNabb knew theiefore that it was the intention of the party 
 to pay from time to time, though the amount was considerable, and ho did it I'.serely actin" as an 
 asrent from time to time. 
 
 I don't think therefore any duty was thrown upon him to continue to pay the taxes at that 
 time. Mr. Ferguson argues, and I tiiink riglitly, that the business agency for paying taxes, if it 
 ever existed, had cea.sed at that time. 1 doubt if it ever existed at all ; I am inclined to think it 30 
 hadn't; but at all events that it wasn't existing at that time — nay, not oidy had he discontinued 
 requesting McNabb to pay and to draw upon him lor it, and in that way sending the money, but 
 he had appointed some other ))erson, Mr. Hall, to act as his agent in lieu of McNabb : so that I 
 BU|)po.se upon that point an}' judgment must be for defendant. 
 
 Then when we come to the legal points of the ca.se, I at present cannot sec how this case is 
 distinguishable from " Ley v. Wi'ight," Ijut before that there is a great deal in the observation 
 addressed to me by Mr. Boyd, as to taxes for '75 : for though there was a deduction on that ac- 
 count, on some account or other, that is to say, that the acreage of the lots assessed was far less 
 than the full acreage of the lots, a deduction might have been made in respect of this highway 
 which was running along tiear the lake. I am inclined to tliink it is not necessary to consider ^a 
 that j)oint however, because I think " Ley v. Wright," so far as I have seen it at present — I will 
 look at it aagin more particularly — is not distinguishable from this case. I put it to Mr. Fer- 
 
 ^ 
 

5G 
 
 guson whether, if the taxes had been fully paid for 76 and 77, ami only in aiiear for 7o, \]vy 
 could have sold as if no taxes had been paid for 75, 76 and 77. I put that as an oxtiomu case 
 to test his argument, and he said it would, but that appears to mo to run counter to the old rule 
 which 1 held in "Austin v. Harrington," that the land could only be sold for what was actually 
 due. If, therefore, they sold when 2-3rdsof the taxes out of the three years had been paid, tliey 
 would surely como within the mischief of that rule. 
 
 Again the case of Yokehain v. Hall, is a good deal to the same point, because, here it was htdJ 
 that the assessment must be in such a shape that a party could be able to redeem for what wa3 
 really due on the lots to be assessed .separately. Well, here the party couldn't redeem, witliout 
 paying three times as much as was really due on the case to which I referred. 10 
 
 That however is a question merely of agreement, and so it was in Ley v. Wright. If it 
 comes to be so insignitiear t and unsubstantial, as to the ten acres that were spoken of, why tliat 
 might admit of different elements ol consideration, but where it is s;imething really substantial, 
 then, I fancy we must try it by a stricter rule. Here, according to tiie assessment, and acconiing 
 to all the papers produced for two or three year.s, leaving the case of 75 for the present out of the 
 que.stion ; for two of these years the taxes were a.ssessed on some .seven acres, between seven and 
 eight acres against the owner of the land : There were taxes to the extent of seven or eight 
 acres against him ; taxes for that seven or eight acres being paid by another person to whom ho 
 had sold. In that case of course, tiiey levieil taxes which had been already paid : to what extent 
 exactly, I do not know, but it would certainly be to an extent that the law would call a substan- 20 
 tial extent, and if it is so upon that point, that would be sufficient for setting it aside. It would 
 be an erroneous levy of taxes for more tiian was due, when in fact, a portion of it had not only 
 been assessed elsewhere, but it had been actually paid elsewhere. 
 
 With regard to the assessment of this land erronef)usly as non resident land, when in fact it 
 was resided upon and was occupied. I suppose that point must be considered as settled, in a case 
 which was followed by me in Silverthm-ne v. Campbell. It was not originally hold by me to that 
 effect, but followed another case to that ettect. If it be right as to the assessment with respect 
 to the Great Western Railway's land, which appears at present time to bo the turning point in 
 the case, and at all events the principal point. Then of course the Plaintiff must succeed altogether. 
 
 I will look it'to the case further, but unless I change my opinion, it is that this case falls 30 
 within Ley v. Wright, and decree will be for plaintiff, and with costs I needn't say ; and I miglit 
 add, that if I had found against plaintiff I would have dismissed bill without costs on account of 
 the unrighteous conduct of defendant. 
 
 It is hardly necessary to add anything more to what I have said already with regard to 
 Mr. McNabb himself, but I cannot help .saying that throughout it is lamentable that a man should 
 have been guilty of such conduct as here shown. When he is written to, he replie •; that he was 
 not purchaser but his son, when his son was only his agent to purchase, when it was just as 
 much his, and under his control, as if his own name had appeared. 
 
•r 
 
 57 
 
 Continuation of judgment as reserved. 
 21st May, 1881. 
 
 At the hearing of this case I gave jurlgment upon tho question of agency against the conten- 
 tion of plaintiff. At the same time I stj^ted my impro.s4)n to he upon tiie cpiestion of assessment 
 the case was governed by the case of Ley v. Wright, 27 C. P. 522. [ ha\e since examined that 
 case more fully, and the result has :)een to confirm the impression which I then entertained. 
 
 The decree will therefore be for the plaintiff with costs : the defendants might strictly set off 
 against the costs only the taxes |)aid by them which are properly referable to the land owned 
 by the jjlaintiff, as distingiiisiied from that owned by the Great Western Railway Company. Tliat 
 would be the exact sum to be given by the plaintiff to the defendants, and for the exces.s. the 10 
 defendants would proi)erly have their remedy, over against the municipality, but the plaintiff has 
 not made the municipality a party defendant, for the purpose of that remedy ovee ; and there- 
 fore the proper decree will be that the taxes paid by the defendants, and the costs payable by them 
 to the plaintiff be set, the one against the other; the difference to be i)aid by the 
 plaintifi' or the defendants, according to which of the two amounts may exceed the other. 
 
 DECREE. 
 
 IN CHANCERY. 
 Between SANDFORD FLEMING, Plaintiff, 
 
 AND 
 
 JOHN M. McNABB and ALEXANDER McNABB, Defendants, ^q 
 
 Spiugoe, C. J. O. 
 
 Satuuday, the 21st day of May, A. D. 1881. 
 
 This cause coming on for the examination of witnesses and hearing before this Court at 
 Walkerton, on the 2Cth and 27th days of April last past, before the Honorable John Godfrey 
 Spragge, silting as Chancellor, in presence of Counsel for all parties. Upon opening of the n^atter, 
 upon hearing read the pleadings and proceedings had and taken hei-ein, and upon hearing the 
 evidence adduced and what was alleged by Counsel aforesaid, this Court was pleased to direct 
 that this cause should stand over for judgment and the same coming on this present day for 
 judgment — 
 
58 
 
 1. This Court doth declare that tho allojjod sale for taxes of the lands and premises in 
 question iierein in tho pleadings inctntioned was illegal and void, and that the ileed to the 
 defendant John McNabb ouyht to bo delivered up and cancelled, and doth order an<l decree the 
 same accordingly. 
 
 2. And this ('ourt doth further order and decree that it bo referred to the Master of this 
 Court ut Peterborough to take an account of tho value of the timber and other trees, if any, cut 
 or removed by the defendai.ts or either of them, or by tluir C(jnst'nt or direction, or with the 
 consent or direction of either of them, from off the said lands and premises, and the daiiiages, if 
 any, sustained by the plaintiff by reason thereof and to take an account of the amounts, if any, 
 properly expended by the defendants in payment of the taxes upon the said lands and premises 
 and to tax to the plaintiff his costs of this suit. 
 
 3. And this (.'ourt doth further order and decree that the said Master do set off pro tanto 
 the amount, if any, which he may find tliat the defendants liave projierly expended for taxes as 
 aforesaid against the amounts which he may allow the plaintiff for timber, if any, cut and 
 removed from off the said lands and premises, and for damages, if any, and for the said costs and do 
 certify the balance payable by the plaintiff or the defendants as tho case may be. 
 
 4. And this Court doth further order and decree that the party by whom the said Master 
 shall find a balance payable do pay the same to the party to whom it may be found payable 20 
 forthwith after the said Master shall have made his report. 
 
 REASONS OF APPEAL. 
 
 This is an appeal from the Judgment of the Court of Chancery, setting aside a sale for taxes. 
 
 The land sold consists of lots fifty -seven (57), fifty-eight (.581, fifty-nine (59), and sixty (60) 
 in the Lake Range of the Township of Saugeen. 
 
 Lot fifty-seven (57) contains about eighty -nine (89) acres ; lot fifty-eight (58), about one 
 hundred andfive (105) acres; lot fifty-nine (59), about one hundred and four (104) acres, and lot 
 sixty (CO) about one hundred and three (103) acres. 
 
 The sale took place on the 17th December, 1878. The lots were sold separately for the taxes 
 of the years 1875, 1870 and 1877, and sepaiate certificates given for each lot. On the 20th 
 December, 1879, they were conveyed by the Treasurer in one deed. 
 
 30 
 
50 
 
 It vvaM (illcf,'L'(l in tlu- hill, and at tlic licarini^, nn<l atteniplcd to ho pn)vc<l, that tlic (ItfciKlnnt 
 acted as a^'iiit fur tlic plainlifr in tlir caso of tlii'sc; lands, and so was pivfliidid from |inrcLasinj{ 
 at llio sale, hut upon tlie «-viduncu thu learned Cliancollor at tliu hearing decided, npun lliis ground, 
 in favor of tlie defendant. 
 
 The sale, however, was lield void, and set aside upon tlio ground that certain portions of the 
 lots occupied by \V'ellinj,'ton. Grey and Bruce Railway Company liail licen a.^ses-cd ;uid conveyed 
 with tlie remainder of tho lots iielonging to the plaintiff, and .so tho aH^e8^nlent and sale wero 
 void as to the wliole 
 
 The railway was laid out through these lots long biffore, and at the time when the assess- 
 ment in (juestion was made it occupied -iO-lOOths of an acre of Lot .")7, and 2 ;!()-lO()lhs of each of 
 the other three lots. Thi.s portion was fenctd off from the rest of the lots, and had for each of 10 
 the years in (picstioii liicii asses.sed to and tho taxes thereon paid by the Railway Company. 
 
 In ISTS, the firi-t of these years, each of the four lots was assessed ') tho plaintiff a.s con- 
 taining two acres less than its actual <|uantity, and the land occupied by tho railway wa.s therefore 
 not assvssed to him in that year. 
 
 The whole sum for which the four lots were sold was 8219.00, but this included tho costs of 
 sale, and interest added in each year, making about §K).00. Tho actual taxes assessed therefor • 
 was about S^17t).()0, being about So cents an ncre for the two years during which the railway land 
 can be .said to have bt.en included. The excess of tiie a.sse.ssment, therefore, if ai y, would be on 
 lot ")7 about l.*) cents, and on each of tiie other three lots about 80 cents or $2.oij in all. If the 
 railway land was included in the year LST') also, the excess of as.sessnient would be on lot .57 20 
 al)OUt 2."} cents, and cm the otiier lots about .S-'i.-tO. 
 
 The dofendauts submit that tlio Judicinent of the Court appealed from is wrong, an<l should 
 be reversed for the following, among other reasons : 
 
 1. The excess, if any, is too small to form a sufficient ground for se'ting aside the sale. In 
 Ley V. Wriglit, 27 C P., .522, by which it is said this case is governed, tho land improperly inclu- 
 ded was about one half of the land sold, ami the sum assessed was nearly doubled by tho excess, 
 
 2. The land was jiroperly assessed in 1875, and the taxes for tliat year \V(.'re three years in 
 arrears. The sale therefor was valid, and the irregularity, if any, is cured by the Statute. 
 
 3. The evidence shews that the assessor did at first assess the railway land to the Railway 
 Company ; the assessment of the plaintiff's land therefore was not intended to include, and did 30 
 not include the land occupied by the railway, and neither the plaintiff's assessmeut, nor the value 
 
 of the land assessed to him, nor the amount charged to him, has been in any way affected by the 
 alleged irregularities. 
 
 The defects, if any, in t!ie assessment and sale, have been cured by the Statutes in that behalf. 
 
 The appellant refers to McKay v. Crysler, 3 Sup. Ct. Rep., 430 ; Hamilton v. Eggleton, 22 
 C. P.. 536 ; ibllverthorne v. Campbell, 24- Grant, 17 ; R S. O. Cli., 180, sees. 127 to 10!) ; Cotter 
 V. Sutherland, 18 C. P., 357 ; Edinburgh Life Assurance Co. v. Ferguson, 32 U. C. R., 253. 
 
60 
 
 REASONS AGAINST APPEAL- 
 
 In addition to the facts stated in the Appellants' Reasons of Appeal, the Respondent states. 
 
 1. That the description in the Patent of lots 57 and 58, is as follows : " All that parcel or 
 tract of land, situate, lying and being in the Township of Saugeen, etc., containing by admeasure- 
 ment, 19-1 acies, be the same more or less, etc., being composed of h)t.s 57 and 58 in the lake range 
 of the said Town.ship of Saugeen, reserving the road allowance along the bank of Lake Huron, etc 
 
 And that the description in the Patent of lots 59 and 60 is as follows: "All those certain 
 parcels or tracts of land, situate, lying, and being in the Township of Saugeen, etc., containing by 
 admeasurement, 207 acre.s, he the same more or less, etc., being composed of lot.s, numbers 59 and 
 60, in the lake range of the aforesaid Township of Saugeen, reserving the road allowance along lo 
 the top of the bank of Lake Huron, etc. 
 
 2. That tl e said road Jiilowance ran across the lake front of all of said lots, taking from each 
 about an equal quantity ut land, and was a travelled road. 
 
 3. That prior to the year 1873, these lots were assessed a.s containing in all 400 acres, in the 
 year 1873, they were assessed together, as containing 392 acres, and in the year 1874-, lots 57 and 
 58 were a,ssessed togetiier, as containing 194 acres, and lots 59 and 60 were assessed together as 
 containing 207 acres, after that date each lot was assessed separately. 
 
 4. That the said luts had been assessed as resident lands from the year 1862 to the year 1874 
 both inclusive, and wi.re first assessed as non-resident in the year 1875. 
 
 5. That the quantity of land assessed to the Great Western Railway, in the Township of on 
 Saugeen, for the ye^-s 1873, 1874 and 1875 was the same, viz : 144.71 acres, and this quantity in 
 each year included the 730 acres out of these lots occupied by said Railway. 
 
 The plaintiff subuiits that the judgment is right and should be sustained, and the said tax 
 .sale declared invalid, for the following among other leasons. 
 
 1. The amount fi»r wiiich the land was sold wa.s more than was properly due, because: (a) 
 Lots 57 and 58 being patented as one lot, should have been soas.sessed, in which case the statute 
 labour tax woultl have been less (6) The amount charged against lot 57, was in fact more than 
 the proper amount of the taxes chargeable against same. Irwin v. Harington, 12 Gr. 179 ; Bhuq .V tt^/f 
 V. Merriman, 2 Greenleaf, 375. (c) The whole of said lots were a.ssessed as non-resident for the 
 three years in dispute, and the full taxes returned against them, notwithstanding that a portion 
 of each lot was used as a public road, and another portion was occupied by, and assessed to the ^^ 
 

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61 
 
 Great Western Railway, wliich for said years paid, taxes thereon. Doe d. Upper v. Edwards, 5 
 U. C. Q. B. 594 ; Yorkiiam v. Hall, 15 Grant, 335 ; Edinburgh Life Ins. Co. v. Ferguson, 32 U. C. 
 Q. B. 253. 
 
 2. The said lots were actually occupied, to the knowledge of the assessor during said years, 
 and should have been so assessed. Street v. Fagul, 32 U. C. Q. B. 119 ; Allen v. Fisher, 13 U. C. 
 O. P. at p. 71 ; Fenton v. McMain, 41 Q. B. 239. 
 
 3. There was sufficient distress during all said years on the said lots, to satisfy the taxes 
 chaiged against same, and such taxi;s should have been so collected. Street v. Fogui, 32 U. C. Q. B. 
 119 ; Allen v. Fisher, 13 U. C. C. P. at p. 71. 
 
 4. The ussessor's certificate tliat should be attached to the list of lands in arrear for taxes for 10 
 three years pursuant to section 110 (^f The Assessment Act was not in proper form, nor was it 
 properly veiihed ; and it was the duty of the assessor to have returned these lots as occupied, 
 
 in wluch case they would not iiavu been sold, sees. 109, 111 and 130, Assessment Act ; Nickery v. 
 Ferguson, 3G W. 230. 
 
 5. The land assumed to l>e soM and conveyed to the defendant John M. McNabb by the tax 
 deed in question, comprised the whole of the acreage contained in each h)t, and the said deed pur- 
 ported to convey to him 401 acres for tlie one consideration of S219.4.5, thus including the land of 
 the Great Western Railway and the road allowance. Ley v. Wriglit, 27 U.C.C.P., Blackwell on 
 Tax Titles, p. 19-''. 
 
 6. The said sale, if upheld, will convey to the said defendant the land occupied by the said 20 
 railway on which there has never been at>y taxes in ariear, and the sale as far as such land is 
 concerned is void, and if void as to part of the land it is void a? to the whole. Ley v. Wright ; 
 Hamilton v Eggleson, 22 U. C. C. P. 53G ; McKay v. Crysler, 3 Supreme Court R. 437. 
 
 7. The County Treasurer should not have sold the whole of said lots which were worth 
 $8000 to $10,000 for tliese taxes amounting to $219,45, but should have sold only a portion, the 
 defemlant, Alexander McNabb, having instructed his agent to pay the taxes for 10 acres out of 
 each lot— he could have done this. Sec. 137 Assessment Act. 
 
 8. The .sale in question is invalid as, owing to the fiduciary relationship that existed between 
 the respondent and the appidlant Alexander McNabb, the latter could not become puichaser of 
 the premises in question except for the benefit of the respondent. 30 
 
 9. For the.se reasons, and those assigned in the judgment in the Court below, the respondent 
 submits that this appeal should be dismissed. 
 
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