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 32X 
 
 1 2 3 
 
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 6 
 
^ 
 
 IN THE SUPREME COURT 
 
 OF THE 
 
 NORTH-WEST TERRITORIES, 
 
 BETWEEN 
 
 GEO. H. SEXSMITH, Plaintiff, (Respondent) 
 
 AND 
 
 THOMAS MURPHY. Defendant 
 
 AND 
 
 W. J. O. BOURCHIER, Assignee of the Estate of A. J. Ross, 
 Defendant, (Appellant.) 
 
 J. B. SMITH, Q.C., 
 advocate for appellant. 
 
 COSTIGAN & BOWN. 
 advocates for respondent. 
 
 I89I 
 
 printed by the tribune power press. 
 CALGARY, N.W.T. 
 
f^m^mmmmm 
 

 199438 
 
IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES. 
 
 IN THE MATTER OF AN APPEAL TO THE SUPREME COURT OF THE 
 NORTH-WEST TERRITORIES IN BANC. 
 
 BETWEEN: 
 
 GKORf:K Skxsmith. Plaintiff, (Respondent.) 
 AND 
 
 Thomas MUKPHY and A. J. Ross, (Appellant) Defendants. 
 
 Upon the application of the above named Appellant and upon reading the affidavit of 
 James Bruce Smith this day filed ; 
 
 10 I do order that the above named Appellant do have until the end of the nth day of May, 
 
 1 89 1, to file the appeal books herein. 
 
 And I do further orde ''• the said appeal be prosecuted in the name of W. J. O. 
 Bourchier. Assignee of the es » A. J. Ross. Appellant, instead of said A. J. Ross 
 
 Dated at Chambers this 24th day of .April, A. D. 1891. 
 
 CHAS. B. ROULEAU. J.S.C. 
 
 IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES, 
 NORTHERN ALBERTA JUDICIAL DISTRICT. 
 
 BETWEEN 
 
 ao 
 
 Geor(;e H. Skxsmith, Plaintiff, 
 
 AND 
 IHOMAS MURPHV and A. J Ross, Defendants. 
 STATEMENT OF CLAIM 
 
 I. The defendant Murphy unlawfully detains from the plaintiff the plaintiffs goods and 
 chattels, that isto say :— One bay gelding with black points about 15^ hands high, four years 
 old, branded ^ on the nigh shoulder (the top portion of the brand being indistinct) and 8 o" 
 
 mM 
 
HE 
 
 ^m 
 
 ivit of 
 
 f May, 
 
 JO. 
 
 s and 
 years 
 
 8 on 
 
i 
 
 the nigh hip, and one iron grey gelding four years old, about 15 hands high, iiranded 
 on the nigh shoulder and having a white star on forehead and two white hind feet. 
 
 2. In the alternative the plaintiff says that he has suffered damagir by the tlofi-ndants refus- 
 ing after demand to deliver up to him the goods and chattels mentinnc«l in thf ist paragraph. 
 
 3. And the defendant Ross after demand refused to deliver to the plaintiff the s.iiij {^.ir^iis 
 and chattels and has sold them to the defendant Murphy anil converted the proceeds of the s;i!e 
 to his own use. 
 
 The plaintiff claims : — 
 
 (l.) The return of the said goods or their value ami $100 damages joi tiieir detention. 
 '0 (2.) $3CX) for their conversion. 
 
 Delivered this 15th day of August, 1890 by Messrs. Costij^aii 6< Bown, of Stephen Avenue, 
 in the Town of Calgary, in the Judicial District of Northern Alberta, .Advocates for the 
 Plaintiff 
 
 STATEMENT OF DEFKNTE. 
 Defence ok the Defendant Alexander J. Koss. 
 
 1. The defendant Ross says that the plaintiff was not at the time of the replevin of the said 
 horses or at any other time, the owner of the .said horses ;nul that the said plaintiff never had 
 any interest whatever in the said horses. 
 
 2. The defendant Ross denies that he at any time refused to citriivc-r the said horses to the 
 20 plaintiff. 
 
 3. The defendant Ross further .says that noilcmand whatevir was made upon him the said 
 defendant Ross by the said plaintiff or by any other person acting for him, for the delivery of 
 the said horses before action brought. 
 
 4. The defendant Ross claims the said horses as his properi) suhject to the terms of a lien 
 aote given to him by the co-defendant Murphy, dated the 17th da\- .t July, A.D. 1890. 
 
 Delivered this 2nd day of September, A.D. 1890 by Lafieity vH: N(.I;in, of the town of Cal- 
 gary, District of Alberta, Advocates for the said defendant, Alexander J. Ross. 
 
 REPLY. 
 
 The plaintiff as to the defence of the defendant A. J. Ko.ss says that : He joins issue. 
 
 30 Delivered the 17th day of September, 1890, by Messrs. Costigan ami How ii, of Stephen 
 
 Avenue, in the Town of Calgary, in the Judicial District of Northern Alberta, A« 
 the plaintiff. 
 
 :ates 
 
IN THE SUFREMP: COURT OF THE NORTH-WEST TERRITORIES, 
 JUDICIAL DISTRICT OF NORTHERN ALBERTA. 
 
 BETWEEN 
 
 Gkokge H. Skxsmum, I'laintilT, 
 
 ANU 
 IHO.MAS Ml.KI'HV and A. J. Ross, Defendants. 
 
 10 
 
 Mr. Custij^aii lur the IMaintiff. 
 
 Mr. Cave for Defendant Murphy. 
 
 Mr. Xol.in for Defendant Ross. » 
 
 Mr. Costitjan .'Vctioii of Replevin fonpair of hor.se.s and calLs witnesses. 
 
 (JKOKC.K H. Si:.\SMHH sworn. 1 am the IMaintiff. I reside at Calgary. 1 am builder' 
 carpenter and joiner. I Unow tiic defemlant, Aie.xander J Ross. I know the horses described 
 in the statement of claim. Tiicy are my property. About the last of May or first of June, 1890 
 sometime Mr. Ross came to me in the shop where I was working and I was making some work 
 in the shop, and we 'j^>>t talking about carpenter work, and he said he had a house he had got up 
 the Summer before out on liis ranche. He said it was too small and he wanted to put an addi- 
 tion to it. He asked nic what kind I thought could be built to it to make it have the best ap- 
 pearance. I told him I could not tell without I was to see the building that was up. He .said 
 I had better come out witli him and see the building. I went out with him and told him what 
 
 20 I thouglU would be the best tor him to do, and drew a kind of a pencil sketch of the ground of 
 it, and told him what I thf)Ugh-t it would be, and he agreed to have it done that way, so he asked 
 nie what it would cost ; I told him in the neighborhood of $200. He then wanted a stable built; 
 lluM) he said to nie, 1 has e a lot of horses but no money, and unless you take your pa,v in horses 
 1 cmiHit bnikl ; so I told him I vvi>idd take horses if 1 got liorses to suit me. He said I hati 
 belter tome with him and see the horses and pick out w hat I wanted. I told him there was no 
 nee<.l ol that, I would take the horses for the work. He said no, he would have nothing at all to 
 do with it without I would tu) and pick the hor.ses and buy them out and cnit, and then there 
 w»)uld be no trouble afterwards about them ; sn I went up with him next e.cning to his ranche, 
 about tj miles from Cal^Miy. He had tlie horses put in the (orral. 1 went with him and looked 
 
 3^ al the horses, and .saw he had onlv two horse-. I woidd have at all out of the ])iic. They were 
 this te im in question, two geldings. I asked him what he wanted for that team ; he said that 
 team was worth $2/^ or .f.^To I sa\s, that decides it .Mr. Ross, and I turned rounti to walk 
 away. 1 said I can't gi\e that for them. He savs, hold on. come back ; what will you give for 
 them ? What tlo yuu think they are worth .^ 1 tnld him the way I was doing his work I wanted 
 to build a house up there that would be an advertisement for me. 1 could give $250 f<»r them 
 on the contract ; so he kind of hesitated a little while and then said, "Well, it's a go." He .says 
 what will the buildings cost n)e r Then I says they will cost $.?6o : he said, 1 thought you said 
 you w<iid(l li\ up tlie stable for $41) ; I saiti that was only one storey high and the other half 
 storey is worth $20 ; that is the work ; he was furnishing the material. He said, all right, its ;. 
 
 4o go ; he says, there .ire the horses, take them ; I said, what do you mean by a go .' you mean 
 
II ES, 
 
 am builder* 
 ies described 
 >f June, 1890 
 g some work 
 e had got up 
 put an addi- 
 
 the best ap- 
 ip. He said 
 »ld him what 
 he {{round of 
 '. so he asked 
 
 stable built; 
 [)ay in horses 
 ic said I liad 
 there was no 
 hing at all to 
 ul then there 
 o his ranche, 
 n and looked 
 They were 
 
 he said that 
 imd to walk 
 
 you f^ive for 
 ork 1 wanted 
 250 for them 
 ;to." He says 
 ii,dit \on sai«! 
 the other half 
 ;dl righi, its ;. 
 
 ? von mean 
 
 
the horses are mine as payment on the contract ? He said yes, there they are, take them. I said 
 yes, I will take them, Mr. Ross ; so we stood talking a little while, while I was to commence the 
 work in payment for the horses fight away ; I told him as I was to commence the work right 
 away I had not time to bother with the horses, I had not time if I commenced right off to bother 
 with them, and no place in town to keep them, and I asked him if he would let them run on his 
 ranche there, so that they would be handy for me to train them in the evening after I quit work; 
 he said to me they had been in harness but were not broke. I asked him if he would let them 
 run there on the ranche ; he said, yes ; that is, you take the same chances as my own if any- 
 thing happens to them ; I will not be responsible for them, they will be at your own risk ; I 
 
 10 said no, I do not want you to be responsible for them, any further than to tell me if they get 
 out of the enclosure, break out ; he said he would let me know if they got out and he came and 
 let me know ; he said the horses had got out of the field ; that was the first time they got out ; 
 he said that they got out twice but he said he got them in all right ; that time he said all the 
 horses was out. After that awhile he came down again and Eshelman was standing at the bark 
 of his warehou.se where he had his implements and I was .standing talking to Eshelman ; R p>s 
 came down from his ranche in the morning and came up where we were standing, and .said, 
 well, all the horses are out again ; I asked him if mine were out along with the rest : he .says, 
 yes, yours and all are gone out ; I said well, I had better get ready and go up and get them in; 
 he says, well you had better wait until to-morrow morning when I come down, as I have .sent 
 
 SO out to get mine in ; he says, yours will very likely come in with them ; they will not separate ; 
 he says if they don't come in I will let you know in the murning when I come down, and they 
 will not be far away ; and he came down ne.xt morning, came to the shop and told me they 
 had come in with his all right. The ne.xt part was .Skerving from Chatham was here and he 
 went up with Mr. Ross, .stopped there all night. In the morning Ross had the horses corralled 
 and I asked him to corral mine with his to .>;hew to .Sher\ ing so he could see nhat sort of a 
 choice I had made in buying. All this time I had been working steadj' at my part of the con- 
 tract. I was working in the shop making sashes, floors and frames and cornices lo have it all 
 ready to go up. He said he would have them all cnrralleii ; he got them in the corral ant! 1 
 and Ross and Skerving went to the corral and I was poi'iting out the leain I had bought ; we 
 
 3*> were just a step in front of Ro.ss. When we came up to the corral I jjointed those two horses 
 out to Skerving and I said there is the horses Mr. Ross sold me for doing his work. Ross heard 
 me ; he was right there ; I think Ross pointed them out too, these same horses ; Skerving made 
 answer and said thej' were a pretty nice looking team but 1 had paid a good price for them ; he 
 asked if they were mine now ; I .said yes, I said as I had no place in town to keep them Mr. 
 Ross was good enough to allow them to run there until I gf)t ready to use them. Ross sai«j| 
 nothing to contradict this ; he admitted that I purchascJ the horses when Skerving .said I had 
 paid a big price for them ; Ross said, you don't know the price of horses here ; if you knew the 
 price you would not think it a high price : he has got a good team. Skerving said, I am going 
 to the Lakes. I asked Ross for a buckboard ; he says, well, these hor.ses are too wild ; I don't 
 
 40 want to let my rig behind them. He said, of course \ou can take the hor.ses, I have nothing to 
 do with them, but I don't want my rig broke up. So 1 left them there, said no more, and 
 Skerving and I went up to the lakes on foot. The next morning, when Ross came into town 
 he asked me what I was mad at, I did'nt stop at his place. I told him I was not mad. I knew 
 if he stopped he would not get back to town that night, and we wanted to get back that night. 
 He said he thought 1 had got mad because he had not let me have the buckboard. We had no 
 further conversation about the horses until I missed them out of the field. I wanted to go up 
 
them. I said 
 immence the 
 e work rijjht 
 off to bother 
 n run on his 
 I quit work; 
 II Id let them 
 own if any- 
 3wn risk ; I 
 s if they get 
 ic came and 
 ey ^ot out ; 
 said all the 
 at the bark 
 man ; R»s 
 , and sail!, 
 t : he says, 
 fet them in; 
 I have sent 
 >t separate ; 
 n, and they 
 d mc they 
 icre and he 
 es corralled 
 t sort of a 
 of the con- 
 ) have it all 
 rral and i 
 lought ; we 
 two horses 
 Ross hcar<l 
 -vin^ made 
 r them ; he 
 them Mr. 
 Ross sai«j| 
 said 1 had 
 .1 knew the 
 ' am going 
 I; I don't 
 nothing to 
 more, and 
 into town 
 1 I knew 
 that night. 
 V'e had no 
 to go up 
 
H 
 
 to measure the cornice of the old building. 1 was getting out new cornice for the gable buIHing. 
 I spoke to Ross about it. He said well, you can go up with me to-night we generally went up at 7 
 o'clock, so I went up to his place in town at 6.30 and he was gone. He sent three men the same way 
 . when I was to go with him he went without me. He knew on those occasions I was expecting to go 
 with him. I then said to him, if I could not go with him I would have to hire a rig as I wanted to 
 get the measure of the cornices. S:> he says come and go with me to-night ; so I went up early 
 that night to his place in town abcut half-past five and sat there until he went and I went with 
 him. This was somewhere in July, about the first. Could not say it was in July. The horses 
 were selected about the 16th June, and it was about a month after that I went up with Ross on 
 
 10 this occasion. The nc.\t morning after Ross had got his breakfast he went out to get his horse 
 to come back to townj and [ went out with him. When we went to where the horses were I 
 could not see my horses in tlie gang of horses, and I says Mr. Ro.ss my horses are not here 
 where arc thej- ? Have they got out ? I .says ; he said no, he had them out haying ; out hay- 
 ing, I said, what business h:ivc >'ou to put them out haying ? He says that won't hurt them, I 
 had no f)thcr team to cut hay with and that will not do them any harm. I told him he had no 
 ri}jht to touch them, to do anything witli them at all, so that was all that passed then. We came 
 into town aiul on the w;i\' in I said to him, Mr. Ross there is something very strange about 
 those b i-ses, your action with thcin. 1 was told by the young man that stopped at your place 
 that you had sold them. Ross said, what in hell does he know about it? I did not do any such 
 
 20 thing ; I have them out hayin■.,^ So we came into town and I went and saw my lawyer about 
 it. -Alter this Ross came into the shop ^o .see me and says, what fuss are you kicking up now? 
 I told him 1 was not kicking up anv fuss, if there was any fuss it was him kicked it up, and he 
 said to mc it will always be disputing until this work is finished, and unless you will sign a 
 writin;4 and take another team and be satisfied with it, I will stop the work. I says you will not 
 stop the work. I will go on and finish my contract ; It will only take two weeks to finish it if 
 you get the stuff on the grour 1 ; he said* he would stop the work if I would not sign the writing 
 and agree to take another team. 1 told him I would not do any such thing. I would stand by 
 my first contract, and the team I first got from him ; it was mine and I would have it. He says 
 if you i)!it it in haw it will be five years in Law and \ou will make nothing out of it, because, 
 
 30 he says, there was nobody by when we made the bargain ; you will get up, you will swear to 
 your contract ; I will get up and I wili swear right contrary, and what are you going to do. 
 Well, I .says, we will have to leave it to the justice of the Court. Then he .said, well you look 
 for justice here you don't get much. Yuu get into Court, you get sworn out of it. I told him I 
 would have to run my chances. I would sign no writing or make no new contract. I would 
 carry out the contract as it was. The horses were mine. He said I might as well give it up, I 
 never would set my ens on them again. I said to him. if I don't I cannot get them, of course, 
 but 1 said mind y«u, Mr. Ross, I am sure to find them if start to look after them. So he turned 
 around and went out of the shop. When I was done with all the work I had done in the shop 
 I went to him and asked him to take the stuff up on the ground, so that I could go on with my 
 
 4o contract ; he was to do that by the bargain. He said he could not do it, he had no team to take 
 it up. So 1 went up and sa'v my law}'er. In consequence of what my lawyer told me I took a- 
 witness and went and asked him again to take the lumber out (paper shown him.) I received 
 that paper in the Post Office directed to me (put in no objection, marked "A.") I found the 
 horses back in the mission back of Calgary in a little log stable in the possession of the defen- 
 daut Murphy ; I asked Murphy for them ; I demanded him to give them up and he said he 
 would not ; he said he could have no action against Ross if he gave them up. I told him he might 
 
 
 Ilii 
 
e buIHirtg. 
 snt up at 7 
 ; same way 
 cting to go 
 
 wanted to 
 It up early 
 went with 
 Phe horses 
 h Ross on 
 t his horse 
 es were I 
 
 not here 
 
 out hay- 
 
 •t them, I 
 
 he had no 
 
 We came 
 nge about 
 your place 
 ) any such 
 ^yer about 
 I up now ? 
 jp, and he 
 ill sign a 
 >u will not 
 finish it if 
 he writing 
 I stand by 
 , He says 
 , because, 
 1 swear to 
 iig to do. 
 you look 
 old him I 
 I would 
 /e it up, I 
 of course, 
 he turned 
 
 the shop 
 I with my 
 m to take 
 : I took a • 
 
 received 
 ound the 
 he defen- 
 : said he 
 
 he might 
 
'jam 
 
 i. 
 
 n> 
 
 10 
 
 .8 
 
 better give them up and not get into cost about them, for he would get into cost, for they were 
 my horses ; no one was present at that time ; afterwards I met him in the street, talking with 
 Charles Jackson, and I demanded them again. We came over about the same words ; he saiiJ 
 he would not give them up. He said he had bought them and had given a lien note on them 
 for payment. I told him I would replevy them. He said, of course you can take them then. 
 He says, this is no surprise, I expected you would be after them every day from what Mr. Ross 
 told me, but Mr. Ross told me he thought he would suit you with another team. Jackson was 
 present at this time. I explained that after that this demand was made three days after they 
 were replevied. This was on Saturday and on Tuesday they were replevied and returned to 
 me and I kept them in a pasture. 
 
 Xm. by Mr. Nol.VN. — I am a carpenter. ! have got a carpenter's shop in town. I work 
 in it pretty much every day. I d.'H some work for Major Walker last week. About the horses 
 Mr. Ross came into me in the shop about the building ; this was the first of it. I don't know 
 but what I did tell Ross before this that I wanted to get some horses, and I went out with Ri»s 
 to his ratiche. All the conversation did not take place then about my telling him he had on.y 
 two horses that I would take and my offering $250 all took place at the ranche at the time we 
 made the contract. I can't tell the exact date or the day of the week. I don't know what 
 night in the week it was. I went out with Ross to see the horses ; I don't ••':nember ; I don't 
 think it was a Saturday night ; it could not be ; we should not corrall horses on Sunday. It 
 
 20 was not Sunday when F made the bargain. I would not buy horses Sunday and for that reason 
 I know it was not Saturday night I drove out with Ross. I think I swore I purchased a pair of 
 pair of horses about the 16th June. It may have been a day earlier or a day or two later. If 
 the l6th was Monday, a day earjier would be Sunday, but I know it was not Sunday I pur- 
 chased the horse. The agreement between Ross and I was he did give tne the team of horses, 
 the transaction was he delivered me absolutch' a team of horses and I was to go on and make arlili- 
 tion to his buildings at a future date I commenced right away. I made out a bill of the lumber and 
 he went and got it. Whatever date the bargain was made this was the terms of it. I got deli- 
 very of the horses ; he said there they are, take them ; They were in the corral. There were 14 
 or 15 horses besides in the corral. I don't think there were 20. I would not think from the 
 
 30 number in the corral there were. I did not halter them at that time or rope them at that time. 
 I did not have my hand on either of them at that time. Nothing is wanting to shew the bar- 
 gain between us. No money pas.sed at the time. No one present at that time only Ross and 
 1 ; vhc bo\- who corralled the horses was in the far end of the corral. He could not hear what 
 we said, he was too far away. I say that positively he could not hear ; neither of us talked very • 
 loud. I don't think he could have heard ; I could not hear that distance. On this day this 
 contract was made. I became the absolute owner of that team of horses. I was to begin work 
 right away, and that was somewhere about the i6th Juue. I was to put an addition to the house 
 that was then 16x24, o"e storey high, a partition across the centre of it, dividing it into two 
 rooms. I was to put 2 bay windows in the part that was up. 1 was to side the 
 
 4o old building up ; it had been boarded up before. I was to tar paper and side it. 
 1 was to stud the lower part of the old building so as to receive lathing. The studding was in 
 4 feet apart and I was to put studding in between. 1 was to change the stairway ; it ran from 
 the front. I was to change them so as to run the other way. I was to put a verandah 16x5 
 across the end of the addition I was to put up. I was to build a stable 24x30 a storey and a 
 half high. He was to find materials and board me while I was doing the work. I had nothing 
 
 ^1 
 
 \ 1 
 
or they were 
 talking with 
 rds ; he saitl 
 lote on them 
 them then, 
 iiat Mr. Ross 
 Jack-son was 
 ys after they 
 returned to 
 
 jvn. I work 
 ut the horses 
 
 don't know 
 ut with Rii>s 
 
 he had on,y 
 
 the time we 
 t know what 
 ber ; I don't 
 Sunday, [t 
 r that reason 
 sed a pair of 
 wo later. If 
 nday I pur- 
 im of horses, 
 :1 make addi- 
 e lumber and 
 I got de!i- 
 here were 14 
 ik from the 
 at that time, 
 hew the bar- 
 ily Ross and 
 it hear what 
 » talked very 1 
 his day this 
 .) begin work 
 
 to the house 
 : it into two 
 
 to side the 
 uid side it. 
 Iding was in 
 ; it ran from 
 randah 16x5 
 itorey and a 
 
 had nothinti 
 
 
tu du with anything but carpenter wurk; I was not to gu to work on that immediately. I was 
 to go to work at shop and make the doors and sashes and frames and he was to take them out 
 as soon as I was ready and they were all made. These horses were replevied about 15th August 
 I guess. On that date I iiad done all that is done now ; I calculate $200 worth. I have done 
 nothing ol'thi-; contract at the ranche. WlLitcver I have done in this contract I did at my own 
 workshop. I made all the doors and sasiies and frames ; by frames I mean frames of ofjcnings ; 
 the verandah pari and cornice and brackets are all made. Also the brackets that are outside 
 for the bay window ; also the cornices and carvings ; there is a balcony on top of one of the 
 i)a>' windows, and the turned railing is all made read)' to set up, and the cornice 1 got out for 
 
 XO the old biiiiding bcin.LC next the roaii. The front board is all carved and cut and ready to put 
 in. I told him I woiikl not make niiicli out of the contract. I did this work myself. All I got 
 from the mill was the turning, and he got the lumber dressed by the plainer. I had to dress it 
 afterwanls. Ross knew this and was in and out two or three times a week when I was working. 
 I was to do a good jwb. nothing was mentioned about approval. I told him I could do him a 
 good job ; I slunved Ross the work and he was well satisfied. The day the work was stopped 
 I asked him if it suitcnl him. and he saitl yes, he had no fault to find with it. I remember all 
 that took place between Ross and I about the $275 and $260 Ross did not tell me that when 
 the work was ilonc if he had not hor.ses to suit me he would give me cash. The horses were 
 mj- propertj- after that date .md when Skerving came up from Chatham I took him to the lakes 
 
 20 to see the country. The lakes are on the ne.vt .section to Ross ; Ross .says his place is 9 miles 
 from Calgary and wo went a mile further. Ihe hor.ses were my property. Skerving and I 
 went out on foot If it is 21 miles from here there and back we went it on foot. I did not take 
 mv team because the\ were at the ranche and Ross would not let me have the buckboard, 
 because the\' were too wild. It is pretty hard work to get a buckboard in town only when I 
 hire a livery rig. Ross did not refuse to let me ta);e the horses away. I asked him to let me 
 ha\e his horse to ride up and get my horses. He .said he would but he would 
 not let me take the rig with my horses. Ross did not on that occasion refu.se to give me 
 tile buckboard. I swear that Ross did not tell me that he had sold the team when I asked for 
 them where tlicy were. Ross never toid me before I brought this action that he had .sold the 
 
 30 hor.ses to .\Iurph\. Ross never i.^ld me to my knowl-^dge before this action was brought that 
 he had sold the horses. I don't remember that he dii., I don't think he did. Ross handed me 
 over a team of horses on my imdertaking I would do certain work. Mrs. Ross was not present 
 during the conversation between myself and Ross in which this contract was settled. It took 
 place at his ranclie. We went out the night before and returned the next morning. I think I 
 did not remain there a whole day. I have been there a whole day at other times and remained 
 over Tuesday. I don't know the tlay I made the estimate for the lumber. I made it out when 
 1 returned from th(; ranche immediately after returning the day we made the contract for the 
 horses. Mrs. Ross was not jiresent the time the bargain was made. I am confident of that be- 
 cause it (?) was not at thi; corral. She was at the ranche. We left her there when we went out 
 
 4o to the corral. The contract was not discussed in the hou.se, nothing more than what the build- 
 ings were to bp like. I told Mr. R<)ss what the buildings would cost. Mrs. Ross 
 was not present. This took place at the corral. 1 did not give any figures at 
 the house. According to my contract the j)ortion of work done was worth $200. 
 I conkl not tell how many days 1 was working at it. 1 commenced to make out the bill 
 immediatel)'. Went to the factorj- for the stuff and commenced working at it, in two or three 
 days after and continued until I asked him to take up the .stuff. Mr Ross stopped me from 
 
 r i 
 
i\y. I was 
 <e them out 
 ;th August 
 [ have done 
 
 at my own 
 f openings ; 
 are outside 
 one of the 
 
 got out for 
 sady to put 
 ". All I got 
 I to dress it 
 as working. 
 I do him a 
 ^as stopped 
 nember all 
 
 that when 
 lorses were 
 o the lakes 
 J is 9 miles 
 'ing and I 
 id not take 
 buckboard, 
 ly when I 
 
 to let me 
 
 he would 
 
 give me 
 
 1 asked for 
 id sold the 
 ought that 
 [landed me 
 lot present 
 
 It took 
 
 I think I 
 
 1 remained 
 
 t out when 
 
 ct for the 
 
 of that be- 
 
 e went out 
 
 the build- 
 
 Mrs. Ross 
 
 figures at 
 
 )rth $200. 
 
 It the bill 
 
 'o or three 
 
 me from 
 
i^- 
 
 BB 
 
 10 
 
 doiny any new work after I had replevied the horses. It was not estimated that the work in the 
 shop would take two weeks. I told him that the work at the ranche wuuUi take two weeks. 
 Ross was to .supply the lumber. There was no lumber on the ^jround when he stopped the work. 
 He told me to go to the mill and get the lumber I worked on. I have no real estate in this 
 town. I have the personal estate that is in my shop, about $800. I don't know whether I have 
 any more property that is exempt from seizure. It would not be cxeinpt in Ontario. I have 
 my tools. I understand that I did get possession of the horses. If Ro.ss said that I was not to 
 get the horses until the work is done he is mistaken as to the bar;»ain. I do ii;)t bel'e.e Mr. 
 Ross will say it. I cannot tell how much work I had done when Sker\ ing c.imc up. I had 
 10 some of the sashes and doors and I think three or four frames made. No time was specified 
 when the contract would be filled more than I was to get it ilonc that fall. 
 
 Ex. bV Mr. Cavk. — I did not try either of the horses before I bfuight them. I have driven 
 them since the Sheriff has handed them over I have found them middling quiet. 
 
 Re.-Kx BV Mr. Costic.AN.— When I came back from the ranche Ross told me to make i ;> 
 the bill of lumber I made up the bill and he took it ; that was the day I came back from the 
 ranche ; he took the bill and went to the Kau Claire. This was the day I made the bargain. 
 I made up the bill ne.xt day. He took the bill and went to Kau Claire. He got into town from 
 the ranche that day somewhere about 10 or 11 o'clock in the morning. The stores were open 
 in town that day I never haltered or roped the horses in Ross' premises. I never did until 
 20 they were replevied. The doors and sashes are in my shop, still on iny han Is. The rough 
 lumber for working with was to be left at the station up the railroad, about 9 miles up west, 
 of Ross, and Ro.ss asked me if I could let him have the team to draw the lumber up with his 
 team. I told him I did not know, I did not like to let everyone ilrive them if tin \ were as wild 
 as he stated, but I said if he got a good man to dri\e them I would not see him stuckion the 
 lumber, that I would drive them myself before I saw him stuck on the lumber 
 
 Mk. COSTKIAN tenders the evidence of A. H. Skerving under commi-ssion. No objection. 
 A. H. Skkkvin(; Dkposition Ri ad. 
 
 Evidence 0/ A . H. Skerving taken at Chatham under coininission dated 14th October, it^o 
 before W. E. McKeongh, Commissioner. 
 
 30 1 Q. What is your name, place of residence and occupation ? ' 
 
 A. Archibald Hugh Skirving, Chatham, Ont., Policeman. 
 
 2 Q. Do you know George H. Sexsmith, the plaintiff in this action ? where does he live, and 
 what is his trade or occupation ? 
 
 A. I know George H. Sexsmith. He lives at Calgary, Alberta. His trade, Carpenter 
 
 3 Q. Do you know A. J. Ross, one of the defendants in this action, where does he live and 
 what is his trade or occupation ? 
 
 A. Yes, I know A. J. Ross and he lives at Calgary, Alberta. His trade is a photographer 
 
 4 Q. When and where did you last see these parties? 
 A. I last saw these parties in June last at Calgary. 
 
 40 5 Q- Do you know whether the defendant Ross sold the plaintiff Sexsmith a pair of horses? 
 If so how do vou know it ? 
 
 .MM 
 
vork in the 
 :\vo weeks. 
 i the work, 
 ite in thi.s 
 :her I have 
 ). I have 
 was not to 
 ij:=c.c Mr. 
 ip. I liacl 
 s s|)cc;ficil 
 
 avc driven 
 
 o make i:;) 
 k from the 
 e barjrain. 
 town from 
 were open 
 did until 
 The rouf{h 
 ' up west, 
 ip with his 
 }re as wild 
 jckion the 
 
 obiccticm. 
 
 ohr, Jtt^o 
 
 e Hve, and 
 
 penter. 
 e live and 
 
 tographer. 
 
 of horses ? 
 
U! 
 
 Ml 
 
 - II 
 
 A. 1 know that he a|rrcci] to let George Scxsmith have a pair of horses for building an 
 addition to his (defciulants) ranch near Calgary. I understood it from Sexsmith and then from 
 Ross. 
 
 6 Q. Dill you ever have any conversation with the defendant Ross in the presence of the 
 plaintiff Scxsmith or in his absence in connection with a pair of horses and in connection with 
 which Scxsmitii's name was mentioned ? If so when and where ? what was said as near as you 
 can remember ? 
 
 A. On the morning of J5th June Ross hati all his horses in the corral and I and Scxsmith 
 and himself were pn.'seiit l<K)!<in.:f over the fence ; I asked Scxsmith which were histwohorses in 
 10 the presence of Ross. ScNsmilh pointed me out two which he said were hi.s. Ross did not say 
 an) thing that they were not his The one was a bay horse, the other was a dark horse ; I 
 think it was a d;irk iron grey horse. I had another conversation with Ross afterwards on the 
 following Saturday. Scxsmith was not |)re.sent Ross says you are pretty fellows not to call at 
 mj- place yesterday. We hail been near his place on Friday, looking at some land. He said 
 " Mrs. Ross saw you aiul fully exjjcctcil that you would call " and he .says " I guess Sexsmith 
 is mad because I would not let him have my buckboard yesterday to drive one of his horses " 
 he says "the horses have not been broken and would sma.sh the rig all to piecas." I said "No, 
 I do not think (icorge was mad, that we were in a hurry and we knew if we stopped at his 
 place wc wouUI have hail to stop an hour or two. 
 20 7 Q. If an)' conversation took place can you describe the horses spokeit of, if so do so ? 
 
 A. One was a b.iy horse and the other a dark horse, and I think iron grey. I think they 
 were the two best horses in the bunch. 
 
 8 Q. Do you know of any other matter, thing or circumstance touching the matters in ques- 
 tion in this action that would establish the fact of a sale of a pair of horses by the defendant 
 Ross to the plaintiff .Scxsmith ? 
 
 A. I only besides the above know what Sexsmith told me. 
 
 9 Q. At the time you asked Sexsmith which were his two horses, was Ross close enough to 
 hear? 
 
 A. Yes. 
 30 lO Q. Uid he also hear Sexsmith's answer and see him point ? 
 A. Yes, I should judge so. We were all together. 
 
 1 1 Q. How cU.se were you together ? 
 A. Four or five feet apart. 
 
 12 Q. Then what one said could easily be heard by the others? 
 A. Yes. 
 
 1 3 Q. Do you know from Ro.ss why the horses were left on the ranch ? 
 A. I know from Sexsmith. 
 
 Cross-examined hy Mr. M.artin— 
 
 14 Q. Could you tell whether thf;se were mares or horses ? 
 
 4o A. No. I was'nt close enough to tell. ~ 
 
 1 5 Q. Ross never pointed out the horses ? 
 A. No. I think it was Scxsmith. 
 
 16 Q. You never heard from Ross that these particular horses were Sexsmith's? 
 
 A. No, he did not describe them but I always understood that the two horses pointed out 
 to me by Sexsmith were the ones sold him by Ross. 
 
 iili 
 
r building an 
 »nd then from 
 
 Bsence of the 
 nncction with 
 IS near as you 
 
 ind Scxsmith 
 « two horses in 
 >s did not say 
 ark horse ; I 
 'Wards on the 
 not to call at 
 nd. He said 
 ess Sexsmith 
 f his horses " 
 I said " No, 
 jpped at his 
 
 do so ? 
 think they 
 
 ters in ques- 
 he defendant 
 
 se enough to 
 
 pointed out 
 
1 1^ 
 
 ( I i 
 
 13 , ' . 
 
 17 Q. How did you understand that ? * 
 A. Because in conversation with him Ross never said they were not his. 
 
 18 Q. How near were you to the horses. 
 
 A. About 30 or 40 feet, there were a number together. 
 
 19 Q. How many ? 
 
 A. I should judge about 20 or 25. 
 
 20 Q. V^'ere these horses making a noise ? 
 A. No. 
 
 21 Q. Whose possession were the horses in at the time \ou saw them ? 
 
 10 A. I do not know ; but the corral beiongcil to Ross and the horses were in the corral. 
 
 22 Q. Uo you know if Sexsmith had other horses ? 
 
 A. I don't know whether he had other horses but these two. 
 
 23 Q. How do you know he had these two ? 
 
 A. I asked Sexsmith which were his two horses in the presence of Ross, and he (Sexsmith) 
 pointed them out to me, and Ross did not say they were not his. 
 
 24 Q. You stated that Sexsmith was to build something, what was it ? 
 A. He was to build an addition to Ross's ranch. 
 
 25 Q. What was he to receive for doing so ? 
 A. He was to get these two horses. 
 
 20 26 Q. Was it on the completion of this addition that he was to receive po.ssession of the.se 
 horses. 
 
 A. I don't know. 
 
 27 Q. Do you know if that building (being the addition) was ever completed? 
 A. I don't know. 
 
 28 Q. Is Sexsmith any relation to ycni '1 
 A. None whatever. 
 
 29 Q. How did it come that )-ou were together". 
 
 A. I knew him in Chatham and when I arrived in Calgary I hunted him up and renewed 
 our acquaintance. 
 30 30 Q- If you had seen these .same horses that Sexsmith had pointed out on the following day 
 in some other place, could you have identified them ? 
 
 A. I don't know that I could, as I <li<l not take very particular notice of private marks. 
 
 31 Q. Did you always understand that this building was only in contemplation ? 
 A. I understood that it was to be commenced at once. 
 
 32 Q. Do you know anything about the size of the building, the material it was to be con 
 structed of or the time in which it was to be completed ? 
 
 A. I do not. 
 
 Signed, A. H. Skirving. 
 Signed, V\'. E. McKt:oi:c.H, 
 40 Commissioner. 
 
 Charles Jackson sworn. — '. live about two miles west of Calgary. I know the plaintiff 
 Sexsmith and the Defendant Rcss and Murphy. 1 was present when Sexsmith and Murphy 
 had a conversation about a pair of horses in Calgary on Main Street. Murph)- and I were 
 talking together. Sexsmith approached him and told him he had a team of horses of his and 
 that be wanted them without any further trouble. Murphy said he would not have them until 
 
 tM 
 
the corral. 
 
 1 iic (Scxsinitli) 
 
 eshion of these 
 
 ip and renewed 
 
 e following day 
 
 vatc marks. 
 1? 
 
 vas to be con 
 
 w the plaintiff 
 I and Murphy 
 I}' and I were 
 ir.scs of his and 
 ave them until 
 
\\ 
 
 I I 
 
 ■'il! 
 
 i ! 
 
 m 
 
 
 '0 
 
 \\ a§ 
 
 ^ '1 Hiif 
 
 13 
 
 he could sec Ross. In the meantime Ross was away. He .«aid I expected there would be 
 trouble about the team when I {jot them. Murphy said this. As I understood the team had 
 been .sold to .Sexsmith when he yot them, or words to that effect. He said Ross said when he 
 sold him that tcpin he thoujjht he could suit Sexsmith with another team, and asked Sexsmith 
 if Ro.ss could not suit him with another team. Sexsmith wanted the team he bargained for. He 
 was ^oiiig to him then and he had no other horses than those that he wanted. That was about 
 ail. 
 
 Xm. liV Mr. Noi,.\.\. — Mr. Sexsmith is merely an acquaintance of mine. He never lived 
 with mr. nor 1 in his house. 1 have part of a place rented and he had part of another adjoining. 
 
 10 ihis lasted three or fimr montiis. It was under the same roof but a partition between. He was 
 not a iKuticular friend of mine more than an} one else. I was intimate enough to become one 
 nf the sureties on the Rci)!eun iiond. As a rule 1 never .see a man stuck if I see he is a respon- 
 sible i)arty. .So far as 1 have heartl and know, I believe Sexsmith to be a responsible party. 
 He has not proved an\ thintj differei't. 1 have had a little dealing with him. I believe him to 
 be an honest man. A gnat many men's word is worth more than their money. I think I knew 
 the da\ before he was going to rci^lev)- the horses. The day before they were replevied. Sex- 
 snnih i'l'i the lior^cs out lo i^i.-lure after thcv were replevied with a man named Frank Westa- 
 w;i\ . .Not with nie. I dro\e them once after they were replevied. They are not in my posses- 
 sion now. I came to drive ihcm becau.se m}' hor.se got away from me and there was a Sunday 
 
 :0 .Si:h;);): picnic on the liow and Sexsmith offered to drive me. He said he would dfive me with 
 his te.ini and it hajjpeiicd that morning he would not go and left the team with me. I have not 
 seen iIk; liorscs fro iacnti\' since tlrjy were replevied. I .saw them Thur.sd.iy, Friday and Satur- 
 da\- after thev w(?re reple\ ied. ll'iey have not done any work. I know they have been at pas- 
 tisic 1 liavc not seen tiic hurscs. li is not likely that they would be worked while at pasture. 
 1 know .Sc.<sinith h.is not worked them. I don't know if VVestaway has. 
 
 Mr. ("ii.si ic.v.N asks the (lefendant Ross to produce a lien note, which, he docs produce, 
 marked as 'lix. IJ.) ideiitined. Plaintiff's ca.se closed. 
 
 MH: C>)srir,.\\ applies to amend the 5lh paragraph of the Statement of Claim, by sub.stitut- 
 ing for it as follows : ".And the defendant Ro.ss wrongly converted the .said goods and chattels 
 30 to his owr. use. ' No cjbjection. .Allowed. 
 
 .Mr. Ni)1..\N on behalf of Ross applies to amend the Defence of Ross by pleading a denial 
 of the conversion as alleged in the 3rd paragraph as amended and by pleading that the Statute 
 
 of I'rauds has not been complied with. 
 
 Mr. Cos ru;.\N -No objection to the first, as to the .second he objects. I will allow the 
 amendment. 
 
 ^Iliii 
 
 Mr.N\)I,.\n su'>mits plaintiff has not succeeded. (i)Where there is a contract for the sale of 
 horses when the vali.e of ^ 10 between two parties, that contract must be in writing unless 
 there is immediate deliver)', part payment or part [)erformance of the contract. 
 
 li H 
 
 There was nn delivery and no possession changed. 
 40 1 decline to stop the case at this point. 
 
 A a 
 
here would be 
 the team had 
 > said when he 
 sked Sexsmith 
 gained for. He 
 rhat was about 
 
 [e never lived 
 ther adjoining, 
 ween. He was 
 to become one 
 he is a respon- 
 (onsible party, 
 beheve him to 
 
 think I knew 
 alevied. Sex- 
 Frank Westa- 
 
 in my posses - 
 was a Sunday 
 drive me with 
 le. I have not 
 ay and Satur- 
 e been at pas- 
 lile at pasture. 
 
 does produce, 
 
 , by substitut- 
 s and chattels 
 
 iding a denial 
 at the Statute 
 
 ill allow the 
 
 for the sale of 
 kfriting unless 
 
il 
 
 I P ii 
 
 14 
 
 Mr. Nolan calls witnesses for the ilefeiiic. 
 
 Al.liXANDEK J Ross swom. I am one of the defendants in ihis action. I was added as 
 a party after the original writ in this action was issued. I carry on business in Cal<jar}' as a 
 photographer. I also rent a ranche about five miles west from town. I am in the habit of buy- 
 ing and .selling horses. I know the jilaintiff Se.xsmith. There was some conversation between 
 Se.\smith and I as to a team of iior.ses On about the first week in June Mr. Se.xsniith came 
 to me. 1 was putting an agricultural implement in one cm\ of the building where he was living 
 and residing, and asked me if I hail any carpenter's work to do. That he was going to take up 
 land and he wished to tlo so somewhere hand)- antl wished to get a horse or a team of horses or 
 
 10 mare.s. He^)referred mares. He .says you have a lot of Imrses. 1 said yes. He .saitl if you 
 want any work done I would like to do it and take pa\- in that way, as I am not very bu.sy at 
 present and would like to do the work for you because if I go on a ranche and do some work it 
 will help mc to get work from other men in the same wa>-. Well I said I did not know of a.'>- 
 I wanted done at present but 1 would think over it ami let him know later. He came to nie 11 
 a short time again and talked about the same thing over again. I told him at present I h..>i 
 nothing I w;is very particular about having dc^ne, but I might possibly let him do some work 
 on my ranche, providing it woul" not cost too much and we could come to an understanding 
 about it, the price and how it was to be done. If he came out .-^omc night with me 1 would 
 drive him out. He could see the buikiing and give me an idea of what it woukl cost and the 
 
 20 probable cost of the lumber it would take to do this work. VV'c scttleil that he would come out 
 some Saturday night and stay over Sunday. I drove him about I think tlu- 14th June, Saturday 
 night, anj'how he stayed Saturthu- night. Sunday he looked round the building, came in and 
 sat down and said it is not going to cost much to ilo the work here, all that you w.mt done. 
 We h.id been talking before we went out to look around the hf)use. I explained to liim further 
 what I WDuld like to have done and the wav I wanted In h.'.ve the house fixe;l. We talked it 
 over, my wife was there, she made sexerai sugg( stions about how she woidd liki- to lia\e it ar- 
 ranged. Mr. Sexsmith sat down and figured right then and there what he would do the W(irk 
 for and the probable cost of the lumber, he said he would do the work and the hou.-;e for $i'00 
 and the lumber would cost from $180 to roo, perhaps a little more and perhaixs a little less. I 
 
 30 told him I wanted a stable built as well ami to figme on a stable ;U);)Ut 22x28 or 24x30. I was 
 not particular which. He figured out that and said the uorlc he would do lor about $40. I'heii 
 he kept figuring and making a kind of rough sketch of what was going to be done until about 
 noon. -After that tlic man I had working for me rounded up the horses and put them in the 
 c inal ami we went down and looked ;it the horses. I did not round them u; particularly for 
 Sexsmith to look at the horses, but I told him he might as well go down and look up the horses 
 and sjc if there was anything there that suited him. I told him I could not give him mares and 
 if there nas anything there that suited him and we could agree ;ibout the price of the horses we 
 could settle about his going on with the work. He went down. There were some 20 hoises in 
 the corral and he Irioked them over ami commenteti on this one and that one and finallj' select- 
 
 4o ed this big team and said that was the best team in the corral. He liked them best of any. He 
 stayed there awhile. I was waiting for another man to come ; he did not come. We walked 
 ab nit to the house, we had some more conversation in the house about the matter, mj' wife 
 s iggested she thought this thing was going to cost too much. I had better consider the matter, 
 bj sure of what the hnnber and everything was going to cost. Then Mr. Sexsmith asked me 
 what I valued these horses at. 1 toUI him ! valued them at $300. Well, he said he thought 
 
'as added as 
 Jal<jar)' as a 
 habit of buy- 
 tion between 
 <siiiith came 
 he was living 
 ig to take up 
 1 of horses or 
 : saiil if you 
 very busj' at 
 some work it 
 know of a.')' 
 aine to iiiu ;.i 
 resent I h..J 
 lo some work 
 iiderstandiii^' 
 me I would 
 cost and the 
 uld conie out 
 ine, Saturilay 
 , came in and 
 I want done. 
 
 him further 
 /Ve taikctl it 
 to have it ar- 
 
 1 do tlic work 
 ousc for $:.'00 
 
 little less. I 
 ?4;<30. I was 
 ut $40. Then 
 ie until about 
 It them in the 
 articularly for 
 up the horses 
 im marcs and 
 the horses we 
 e 20 hotscs in 
 finallj' select- 
 >t of any. He 
 We walketl 
 tter, my wife 
 ler the matter, 
 ith askeil me 
 J he thoujfht 
 
 .'i 
 
'5 
 
 that was altogether t«K) much. 1 said I did not think so. 1 could sell that team for $3CX>. 1 
 says I let you put your price on your work, now what would you consider my team worth ? 
 putting your price on it. He .said I would consider they are not worth any more than $250 ; 
 then I said that was $50 less than their value. I .said if he liked to take that team on the con- 
 tract at $275 he could have them and nobody could have them any less. I told him I knew I 
 could sell the team at $300. I said he could not buy a team like that for $250. He repeated 
 a conversation he had with a man at the mill one day. He did not say it was a team, he said 
 it was a bigger horse and did not know it was a better horse and the man said he sold horses 
 like that for $125 each. I said that was a good man to buy horses from, he was either a fool or 
 
 10 he did not have any more horses like that to .sell. He said he did not know whether the man 
 had horses to sell or not but that is what he told him. Then he said he did not think he could 
 give $275 for these iKjrses, he thought it was a little too much. I said I was not anxious to 
 have the work done anyway, and it did not make any tlificrencc to me if he wanted to go with 
 the contract at these figures he gave me, he could go on with it and finish it and if I had horses 
 to suit him when the contract was finished I could give him horses, or if not I would pay him 
 in cash. If that did not suit him he need not bother any further about the work. He went on 
 figuring again and he figured the stable to cost $60 instead of $40. That is his work. Well, I 
 s.i)'s how is it the first time you figured at $40 and now it is $()0. He says, well first time I 
 made a little mistake ami I figured it larger this time. Well I repeated if he wanted to go on 
 
 20 with the contract and take horses when the contract was finished, if I had horses to suit him 
 and if I had not to take the cash, and if he did not want to do the work on those conditions I 
 did not want it done at all. He was perfectly satisfied to do it but he was very anxious to get 
 the work to do. It was settled there that he could do it on the.se conditions. I was to furnish 
 all the lumber anrl hardware and he was to do the work. Mj- wife came in and asked him when 
 the work was going to be commenced and how soon he was going to finish it as we were only 
 going to be living there for the summer ; she wanted it for the sum- 
 mer and not for the fall. If it was not going to be done for 
 the summer it might just as well wait for next spring. Mr Scxsmith was to make the doors, 
 sashes and windows, and he said he would be ready to come out and work on the building in 
 
 30 two weeks. I s.iid I don't think \-ou can make all those iloors and sashes in two weeks or any- 
 thing like it, and you hatl better get the doors and sashes at the factory, as you can get them 
 chca[)er there than you can make them and so much ([uicker He .says Oh, I can make them 
 quick enough for that and 1 can make them so much better He said all the doors and sashes 
 generally u.sed in this country were made at the factory aiul I thought they were good enough. 
 He says thej- won't cost an\- more than if made at the factory. I can make them '4S cheap as 
 \-ou can get them at the factory and a good deal better I said all right if you think so, go 
 aheaii, all I want is to get them done quickly. That is about all I remember that happened on 
 that da>". That was Sunday. We drove in Monday morning, got in here about 9 o'clock, a 
 few minutes after 9 o'clock. Coming in on the road I told him to get out the esti mate 'of the 
 
 40 lumber as quick as he could and get it at the factory. Previous to this we had a talk about 
 gcttii .c lumber I said I would get from Walker at the Kau Claire which ever would fur- 
 nish it the cheapest. He said he could furni.sh the estimate of the lumber that day but he did 
 not do it for several days after that. Finally he got the estimate of the lumber ready and 
 sHowl; 1 me what it would cost. I told him to t ike it down to Walker and see what he would 
 furnish it for I also got an estimate from the Eau Claire mill of what they would furnish the 
 lumber for He had both of them with him. I did not on that occasion nor on any other occa- 
 
 I 
 
 riffi 
 
 :i 
 
It 
 
 sion sell the team of horses to Sexsmith. I remember when Skcrvinjj went there I drove him 
 and Skerving out. Mrs. Ro.ss was pre.sent during most of the conversation with the plaintiff on 
 the Sunday and while he was figuring ; she heard the terms and heard the whole bargain. I ili<l 
 not or the plaintiff point out the two horses to Skerving and say they were his horses. I saw 
 him point out the horses but he is altogether mistaken as to where they were po'ntel out ; the 
 horses were up around the house. I had rock salt out and the horses were lickin ,' t'le silt on 
 the hill around the house and they walked around an 1 were looking at the n. I tol 1 the man 
 that was working for me to drive them up. They were seen down at the bisc of the hill. Mr. 
 Skerving said when all the horses came up he would like to see a horse broke, he had heard so 
 
 10 much about horse breaking in this country. I told the youn^ fellow to catch a small colt and 
 ride him so that this min would sec a horse bre:i!<in.j. In the msantimo Sexsmith and S!<erving 
 were walking along pointing to this one and that one and I was no' piyin^ aiy atteitio-i to 
 what they were saying. They were not referring to me in the conversation at all. I did not 
 hear Sexsmith tell Skerving those two horses were his. Sexsmith asked me for the bay hor^e 
 the next day after he and Skerving were looking at the horses. They stayed that niglit at m • 
 place. I lent them a horse and rig to look up land. It was not one of these horses. Scxsmitli 
 did not on a subsequent occasion ask me for a buckboanl. He asked me for a horse. This was 
 the day after they were at my place. They stayed one night and all the next day loDking up 
 land and they found when they came in that the land they had selected was taken up and 
 
 20 wanted to go back and look for another place. Sexmith came to me in the afternoon of the day 
 after they came in and said I would like to get that bay horse. He never said it w.is his horse, 
 but wanted the loan of it. I refused to loan it to him. I told him he coultl get a rig at the 
 livery .stable for $2 or $3, and I considered I had given them the team for one day and I had 
 done all I had a right to. They walked out the next day and footed it and walke I passed my 
 place. They were .so mad they would not go in to get their dinner Both stopped at my corral 
 talking to my hired man long enough to get their dinner and also stopped at a neighbours so it 
 could not be for time. I met Skerving after that in the afternoon of the next day and I says 
 were you folks mad about anything? Did'nt we treat you right and well enou.fh when you 
 were at my place the other day. My wife asked me did I do anything to insult you [leople 
 
 30 when you did not come near the house He said oh no, >'ou used us very well, better thin we 
 expected to be. There was no conversation whatever about a backboard. He says I think 
 George is pretty tired to-day. That ended up the conversation between him and I. I claim 
 these two horses now as my property. I sold the horses to Murphy. I got that lien note for 
 them so that my ownership is subject to the terms of that lien note. I never asked permission 
 from Sexsmith to use these horses. I never parted with the possession of these horses until I 
 sold them to Murphy. I never said to him on that Sunday, there are the horses, take them. I 
 never said anything of this kind at any time. The words " it's a go " is an exprcssio:i I never 
 made use of I did not tell Sexsmith the horses were out haying. He came out with me one 
 evening, said he wanted to take some measurement for something '>r other aS )at the biiidiii.js. 
 
 40 He stayed all night and got up early in the m>rning. I don't kn o.v where he wis. We had 
 our breakfast an 1 the man had my horses all hitched up. I said did you get the measure you 
 wanted, if you did we will pull out. I went to get the team. He said I got the measure all 
 right. We got into the rig and, driving into town, somewhere on the 
 road he says " I did not see the big team in the field." I says 
 " Did'nt you." He says " no ;" after a while he says you never told me that 
 they were sold. I says did he. Yes, he says! He says are the>- sold. I .«aid ves. He says 
 
tf 
 
 { 
 
 where arc they now. 1 said they arc out haying. He said I thought 1 was to have that team. 
 I said I thought so too if you were to pay me for them, but you could not give $275 for them 
 and another man could give $300. There was no understanding that you were to have the 
 team at your figures. If I had'nt a team to suit you when your work is done I will pay you in 
 cash. I got $40 or $50 more out of that team than will pay you. He says "that is all right " 
 then the cash will suit me just as well because I can get a better team for that money " and he 
 repeated the storey about the man at the mill again. I never accepted any work that he had 
 done at his shop. He asked 'me to approve of some such he did. This was after Costigan came 
 and spoke to me on the street. 1 just simply turned round and said I would not look at it or 
 >0 ha\ e anything to do with it. I had not at any other time accepted or approved of the work 
 that was done. I never to my knowleiige saw him at work on my stuff for me or that he stated 
 to be my work. He pointed to a pile of sashes one day and said that is mine. I never men- 
 tioned Se.N'sniilhV. name to Murphy in any way whatever until after the Replevin. 
 
 Xm. »y Mk. Costic.w. — I never .sold these horses to Sexsmith or any other horses. I 
 never said I ditl. I have as gooil a memory as the average. I have a -^ood memory. If I say 
 ainlhing that is not true my memory is not to blame. I never said to anyone that I had sold 
 a jiarticnhr pair of horses to Se.xsmith. I know Mr. E.shelman. 1 think his name is Jacob. 
 I don't know his name. I heard his wife call him Jikc. J. F. Eshelman is the name I know 
 him b\'. He was working for me a long time. I never told him I had sold these horses to 
 
 20 Sexsmith. I do not remember meeting E.shelman in my shop one morning and .speaking to him 
 about my bargain with Scx.smith. I may have spoken to him about the bargain. I it ay have told 
 him I made a deal with Sexsmith. Very likely I did. I remember the time Sexsmith aud 1 
 went to the ranche atul we looked at the horses. I don't remember meeting Eshelman after I 
 came back." I will swear positively I did not tell Eshelman after I came back — I have sold 
 that big team to Sexsmith. If it would seemthat I did he is lying under a mistake. I did not tell 
 anything of the kind. I never iii my life referred to these horses as Sexsmith's horse.s. I know 
 Charles Jackson. 1 know where his place i.s. I remember going to his place with a man na med 
 White. I took White out to see .some rake Jackson had to sell. I met Jackson there that day. 
 I did not then refer to these horses to Jackson as Sexsmith's horses. Positive of that nor to 
 
 30 either of the horses as Sexsmith's. Question — Did you not state to Jackson on this occasion 
 words to this effect : Sexsmith wanted to loan my buckboard to hitch up his horses. I refused 
 to let him have the buckboard as I was afraid they might smash it or damage it. An.swer — 
 I positively say I never .said anthing of the kind to Charley Jackson or his brother. 
 
 Atljour iinc:it until to-morrow morning at 10 o'clock, Wednesday, 26 November, 1890. 
 Alexander J. Ross X. Xm. continued. 
 
 
 40 
 
 It is not true that on the occasion of my returning from the ranche where I had the conver- 
 sation with the plaintiff about the horses in my place of business in Calgary, Eshelman being 
 engaged there sorting the mail, I told him I had sold these horses to Sexsmith. I did not tell 
 him so that day or any other day. I will swear I am not mistaken about that. I did not say 
 to Charles Jackson or his brother that Sexsmith wanted my buckboard to put one of his horses 
 in, but I would not let him have it as I was afraid he would break it. Charles Jackson's brother 
 is hamed Thomas. Charles and Thomas Jackson and White were together at Jackson's place. 
 That's the only time I was ever there. I am not mi.staken about having said this. If I had said 
 
r i 
 
 it I would have remembered it. Sexsmith's name was never mentioned while I was there. 
 (Paper shewn him ) This is the lien note I received from Murphy. Mr. Costi<;an offers this 
 note in evidence (read B). When Skerviny was out there the hor.scs were knockin^j about my 
 door, They were not in the corral. Se.xsmith is mistaken, that was the evenintj, not the morn- 
 ing at all. I am just as sure about that as about its belnjj Suntlay. Me is mistaken when he 
 .says that we were lookin^j over the fence. I heard Skcrviny's evidence read. Hcismistakcnwhen 
 hesays I asktd Sexsmith which were his two horses in the proente of Ross. If he saj slhatw.'is 
 asked in the corral he is mistaken. I did not see him point out the horses to Skervin^. If I 
 had seen him do so I would not have contradicted him simi)h- because I would have thou^dU 
 
 10 he was blowing to his friends, i drove Sexsmith and Skerving out and they drove in with a 
 horse and rig belonging to me. 1 was dealing in Winnipeg in land. I was in the boom. I left 
 there, came here, went into photographing business, also ranching, selling pianos inul agricul- 
 tural implements, been in that business. Last year Mrs. Ross was living at the ranchi.'. As a 
 rule I went out every night. Went out Saturday nights and as a rule stayed until Mond.iy 
 morning. There was nothing said about the.se particular horses in Mrs. Ro.ss' presence to Sc.s- 
 smith except that he would have them at my price. There was less said in her presence lli;in 
 anything else. Sexsmith asked the price of the horses in Mrs Ro.ss' presence. 1 told him that 
 I wanted $300 for them. He wanted them for less. Mrs. Ro.ss laughed. He .said he did not 
 think that they were worth that. I don't remember but I think he .saiii so in Mrs. Ross' prcs- 
 
 30 ence what he thought the horses were worth. I think he did. That is all I remember that took 
 place about the horses in Mrs. Ross' presence. The whole matter was tliscussed in her presence. 
 The price of the horses was not discussed in her presence until after we came back from the 
 corral and then there was very littla. Mrs. Ross has been living in town lately. This conver- 
 sation in presence of Mrs. Ross took place on a Sundaj-. Did not go out to tlio corral at all on 
 Monday morningbeforeweleftfortown. Arrived in town that Monday morning a few minutes after 
 nine. I remember the time because that is the time I usually get in. I left that ranche that 
 morning a few minutes before eight. Cannot state how many minutes. Takes from an hour 
 to an hour and a half to drive in ; it took me quite a little over an hour that day, just an hour 
 and fifteen minutes. 1 generally get up in the morning about 6 a.m. or half-past six. 
 
 30 Ex. HY Mk. Cavk. — When these horses were taken from Murphj- by the Sheriff the)- were 
 
 in Murphy's possession by my consent and by arrangement between Murphy and me. 
 
 40 
 
 Mary Ross sworn. I am the wife of the defendant i<os'\ I have met the plaintiff I 
 remember his going with Ross to the ranche last summer. That was his first visit to the ranche. 
 I was stopping out there, he arrived in the evening. I think very nearl}' or about dark. The 
 first time I am not pf)sitive whether it was on Saturday evening or not. I think it was. He 
 remained over Sunday two or three times. I remember the following day his having a conver- 
 sation with Ross in my presence. That conversation was on Sunday. He came out specially 
 10 looi- at the place and talk about improvements, and he figured and finally said he would do 
 so much work for a certain price. There was considerable talk over what would be done and 
 the price I remember distinctly because I was referred to every now and again about the plans 
 of the hou.se. There was considerable talk about prices and .so on, but finally the price was 
 decided to be $260 for a certain amount of work. Other prices had been mentioned but that 
 was the final and the pay was to be either in money or horses. How the horse question came 
 up, we were afraid perhaps we would not have the cash to spare to pa> straight cash and when 
 
v> 
 
 ^ 
 
 
 
 mKiK^m^rrrvm 
 
19 
 
 the work would be done and he had agreed to take horses if it was not convenient for us to pay 
 the money. We had talked that way. He had looked at a bunch or band of horses and pre- 
 ferred the look of two of them, but there was nothing .said that he should positively get those 
 two horses. Mr Ross had named a price for these horses. I heard Ross mention a price to 
 Seismith It was $300. I don't remember Sexsmith saying anything but there was positively 
 nothing decided about Sexsmith getting these two horses. I did not hear Sexsmith .say he 
 would accept the offer of $300. I did not hear him .say anything at all. I did not see Mr. 
 Ross draw a pencil sketch of the improvements, but I saw Mr- Sexsmith draw a. sketch, because 
 he referred to me and asked me if we would have such and such things. I did not say anything 
 10 about agreeing to $200 for the improvements. I did not agree at all. Sexsmith went out at 
 the ranche several times on Saturday night. Ross came out in the evenings during the work 
 but Sunda_\- was tlu; onlj- day time he was at home. 
 
 Xm. \i\ Mr. Costic.an. — The>' left the ranche that morning pretty early. 1 cannot say 
 the time. Mr. Ross generally left between 7 and 8 o'clock. Don't remember the time he left 
 this particular morning. He u.sually got up six or half-past six. Generally six o'clock. They 
 were in and out the house this Sundaj". Really I did not observe them together. They may 
 have been. I don't think they were out of the house together Monday morning. They may 
 have been but I don't think so. They were not that I know of I v/on't swear they were not. 
 They may have been. I hardly think it. I did not see them. I do not know for sure. They 
 20 were both out of the house at the same time. I don't think they were. My reason for saying 
 that is my husband is always in a hurry going to town. Sexsmith I think was up earlier than 
 my husband. I said nothing when the price of $260 was mentioned for the improvements. I 
 raised no objection. 
 
 Rk-X HY Mr. N()I..\N.— I don't know of my own knowledge that Mr. Ross was out of the 
 house at all before going to town that morning, we had i^ man stopping there at the time. I 
 think his name was Morgan. Mr. Ross sometimes hitched the horse himself I do not know 
 he did it this particular morning. 
 
 Ca.se closed for defendant Ross. 
 
 Mr. Cave fov defendant Murphy reads Judge Rouleau's order and asks me to decide the 
 30 question between all parties and calls, 
 
 40 
 
 Thomas MurI'MV sworn. — I am one of th<; Defendants. I live on the mission. I am a 
 contractor at teaming or whatever I can get to do. I heard the evidence of Jackson and Sex- 
 smith. I heard their account of meeting me when they demanded the horses from me. I heard 
 them state that I said I ■J.]\..iy.. expected tioublt in connection with these horses as Mr. Ross 
 told me he had ;.uid these horses to Sexsmith. That is proving I never said any such words or 
 anything to that effect. Ross never mentior.ed the name of Sexsmith to me before the Sherifif 
 took the hor.ses. Question — How came you by these horses ? Answer — I bought them fron* 
 Mr. Ross on 17th July. Mr Costigan objects to any evidence of .sale to the witness, claiminj 
 that he has not in his Defence set up property in himself but by par. 4 set up merely an agree- 
 ment to purchase. I rule the evidence admissible under the 2nd paragraph of his Defence, also 
 under the 3rd par 
 
 ^ ik 
 
|! 
 
 f' 
 
 % 
 
 e- 
 
 so 
 

 20 
 
 I give security for these horses. 
 
 To Mk. COSTKJAN — It was given by a lien note. 
 
 By Mr. Cave — (paper shown him.) That is the .securit)-. Tliese horses ivere taken from 
 me by the Sheriff, they were at that time in my hands by consent of Ross. At the time the 
 horses were taken from me I was using them. It was a matter of inconvenience to me their 
 being taken. 1 had a contract to supply hay to the railroad at the time to Mr. Strevel and 
 Mr. Laidlaw. I had two contracts besides some sub contracts under those who I was .supply- 
 ing a load to now and again. 
 
 At the time the horses were taken from me by the Sheriff I had the team in daily use in 
 
 10 my business. These horses would be worth in business such as mine about $3 a day for work 
 
 of that kind. For my business it would be worth my while to pay $3 a day for a team of horses. 
 
 Xm. by Mr. Costu;ax. — I never paid the $300 for this team. They were replevy 1 aw.iy 
 from me. I had not a chance to pay for them. I don't know of any horses hired for less tha;i 
 $3 unless for a certain length of time or when a person was using a whole lot of hor.se.s. Horses 
 with a driver are employed on construction for $2.50 a day as long as the work lasts. 
 
 Xm. by Mr. Nolan. — I never heard Sexsmith's name mentioned by Ross in connection 
 
 with these horses. I first heard of Sexsmith having any claim on the horses, was coming to 
 
 demand the team. I did not know anything about Sexsmith or who he was. The horses were 
 
 replevied on 12th August (to Judge.) I got the horses on 17th Jul)-. Ca.se closed for defend- 
 
 20 ant Murphy. 
 
 Mr. Costigan asks to call witnes.ses to contradict Ro.ss. To call Kshelman. Charles 
 Jackson and Thomas Jackson as to the particular conversation he cross-examined Ro.ss about. 
 
 Mr. Nolan says no objection to Kshelman and Thomas Jnckson. but objects to Charles 
 Jackson, as he has been sworn before. I allow it. 
 
 Jacob B E.SHEL>L\N sworn. — I live in Calgar)-. I am a married man. i know the defen- 
 dant, Alexr ider J. Ros.s. I was in his employ for some time here in Calgary. I remember his 
 being in conversation with me in respect to a pair of horses and Sexsmith. It took place in 
 Mr. Ross' studio, I had just returned from the post office in the morning and was reading mv 
 correspondence when Mr Ross came in and stated that he had sold the big team. When I 
 30 asked him to whom, he lid to the old man, meaning of course Mr Sexsmith speaking of Se.x- 
 smith in that way. I know the team he referred to and knew it at that time. I know them be- 
 cause I h::.. seen them frequently. It must have been sometime the beginning of June last or 
 the end of May. I am not very sure. It was not July anyway, I am sure of that. No chance 
 of my being mistaken. I would not be sure he mentioned the price. He said Sexsmith was 
 doing work for him. He was to finish a building for him and put an addition to it and the 
 horses were to be in payment of the work. 
 
 Xm. by Mr. Nolan.— I remember this all along. It was not at all neces.sary to remind 
 me of it. No person reminded me of it recently. I perfectly recollect all that was said. Ccr- 
 taiinlj' there was a conversation about it between Mr Sexsmith and myself I did not go to 
 
I 
 
Sexsmith nor he to me. We happened to meet, Sexsmith suggested it first. I could not state 
 howlongagothiswas; itwas .somewhereafterthearrangementwasmade It was more than a month 
 ago, it s not after I left Ross' employment. Ross said he sold the big team to the old man. 
 He mentioned a name. He mentioned Sexsmith's name. F think he said. I think I said in 
 my direct examination he mentioned Sexsmith. I said speaking of Sexsmith in that way. I 
 know who he meant. I think I have reason to think that by the old man he meant Sexsmith. 
 I am prepared to swear he mentioned S<xsmith's name. He did. His name occurred in that 
 conversation. I say he spoke of the old man meaning Sexsmith because afterwards he spoke 
 of Sexsmith Ross said Sexsmith was doing work for him. It is not as I understand it that 
 
 10 the horses were to go in payment of the work. If I swore that Ross told me that, I was mis- 
 taken. I understand the horses were sold and the work was to be done in payment of the 
 horses. Ross described the team as a gray and bay. He mentioned them as a gray and bay. 
 I think he had another gray and bay in his possession. I know he had but this was the big 
 team. I am sure Ross did not refer to another ; '^av and bay. I know exactly what he referred 
 to. I think that was the only match big team Lc led at the time. I don't know what 
 
 teams, he may have had other big horses. He c; the team the big team. They were 
 
 matched in size and weight and he hitched them and drove them together. He may have had 
 smaller match teams. I am not quite friendly with Ro.ss at present. I was at the time and up 
 to a short time ago. I was in Ross' employment. You may call it he discharged me, I am not 
 
 20 in his omployment now. I caused a writ to be issued again.st Ross recently and there is at pre- 
 sent a case pending in this Court in which I am plaintifTand Ro.ss defendant. This would be 
 somewhere at)out the beginning of June or end of May. I would not say it was earlier than 
 th.it. I am not positive as to the time. 
 
 Xm. HY Mr. CosTKiAN. — ! claim Ro.ss owes me for certain monies or commission for wages 
 and I have brought an action to recover it. 
 
 Chaklk.s Jackson recalled. — I remember Ross going to my place in the country with one 
 White. Mr Ross, my brother and myself were r^-'ient when something was said about a horse, 
 and buckboard and Mr Sexsmith. How the conversation happened to take place was this. 
 In consequence of something I had heard I asked Ross why he did not let .Sexsmith have a 
 30 horse a d ride out to his place. He said he offered him a horse and he would not take it. He 
 said he wanted to drive his team or one of his horses, I forget which in one of his rigs, and he 
 would not let him have one, the team had run away and broken one rig and that was quite 
 enough, or words to that effect. My brother heard this conversation. We were walking toge- 
 ther from my house to his. 
 
 40 
 
 Xm bv Mr. \oi.AN. — I don't think I am interested in the plaintiff succeeding in this case 
 any more than I went his bond as stated before. I am not altogether aware if Sexsmith does 
 not succeed I will have to pay a portion of the money in the bond. I understand it was to see 
 that he would have the team here when the suit would come off. I did not think the bfjnd read 
 I would be liable for damages. I am not sure I read the bond. I could not say for certain that 
 was in it. I did not understand it in that way. This conversation took place coming from my 
 place to my brother's. 
 
 .Re-Xm. bv Mr. Costigan.— The other bondsman is Mr Walker 
 
2i 
 
 Xm. by Mr. Nolan.— White was driving the team when this conversation occurred. He 
 had a pretty wild team and he was driving it. He was not near enough to hear when this con- 
 versation was going on. 
 
 Thomas Jackson sworn.— I know defendant Ross. I remember his being at my brother's 
 place with a man named White. I recollect a conversation about a pair of horses and Scxsmith. 
 Ross was talking about Sexsmith going out to look for land— the day before he went out walk- 
 ing. He said he wanted to bring down his horses and put them in one of his rigs and he said 
 he was afraid to let him have the rig for fear he would smash it. Fe said he 
 had smashed one on him already He said his horses Sexsmith's. His 
 
 10 rig, Ross'. 
 
 Xm. by Mr. Nolan. — I could not state what date this wa.s. It was about haying time as 
 near as I can remember, if I remember right. Ross said Sexsmith went out the day before. I 
 do remember right. Ross said he went out walking looking for land the day before. If I re- 
 member right it was not my brother introduced the conversation about Sexsmith going o-.it 
 walking, it was Ross himself I don't think my brother asked Ross why he would not lend 
 Sexsmith the horse. I was there. I don't think my brother asked him why he did not let Sex- 
 smith have the horse. Ross was talking about his going out to look for land and what a fool 
 he was for walking. This conversation took place up at our place, not in the hou.se outside. I have a 
 horse and my brother. We were walking from my place over to his. Sexsmith is not a partic- 
 20 ular friend of mine, nothing more than an acquaintance. He has not been living in the same 
 house with me. My brother and I are working together. I am aware my brother has become 
 security for Sexsmith in a way for the horses. I do not understand the particulars of it. I do 
 not suppose I will have to contribute my share to my brother if he has to pay a portion of that 
 bond. I was not asked to go into it. 
 
 RECESS. 
 
 ft 
 
 M. . Nolan addresses the Court for Ross. 
 
 No evidence that the two horses replevied are the same two horses. 
 
 The person replevying should be entitled to the immediate possession. 
 
 The only evidence of sale to plaintiff is plaintiff. 
 
 Not probable that Defendant handed over the team before the work was done on his simple 
 30 assurance he would do work for him. 
 
 No evidence of any former transaction between them. 
 
 Renews his objection that the sale is void under Statute of Fraud*. Is it likely the defen- 
 dant would hand him the horses before the work was done. 
 
 As to contract being on Sunday, he intimates he may apply to amend the pleading. I state 
 I will hesitate to allow such an amendment. 
 
 As to Eshelman's evidence he says the conversation took place ist of June or last of May. 
 Sale was the 15th of June. Eshelman is prejudiced. Ross says it was two weeks after he re- 
 fused horses to Sexsmith he was at Jackson's ranche. Jackson is one of the sureties. 
 
 Mr. Cave address the C:ourt for Defendant Murphy. 
 40 Claims a return of the horses and damages for their detention by reason of the replevin. • 
 
 Mk. Costigan addresses Court for plaintiff. - 
 
Ross has not contradicted the facts that he tried to get Sexsmith to sign a paper to take 
 some other pair of horses. 
 
 That he told Scxsmijh he would go into the box and swear aga<nst him. 
 
 Mr. Nolan says he denied the whole conversation. 
 
 He did not deny telling Sexsmith twice that the horses had got out. He did not deny he 
 asked for his team of horses to haul the lumber. That he went out 3 times to place when the 
 plaintiff wanted to go out to measure the cornices. Sexsmith swore that Ross stated he would 
 allow the horses to remain at Plaintiff's risk. Sexsmith swears the delivery was made at the 
 corral in the morning before they came to town. Mrs. Ross knew nothing about that. If I 
 XO believe the evidence of Skerving, Ross ha;; sworn to what he knows to be untrue. 
 
 Ross was the first person who nientioned about Thomas Jack.son and then the brother was 
 sent for.. He was not a witness at first. Ross' man was there and would have known these men 
 were at the corral. 
 
 Thursday. J/th November 1890. 
 
 Mr. Gkorge H. Skxs.miih, 
 C.vr.(;.\RV. 
 
 EXHIBIT A. 
 
 CAL<iARY, Alberta, 27TH August, 1890. 
 
 Sir, — We are instrutied by Mr. Alexander J. Rosj, Photographer, Calgary, to notify you 
 20 to do no work whatever for him till you are further notified. Mr. Ross will not be responsible 
 
 for any work you may do after receipt of this notice. 
 
 Yours etc., 
 (Signed) I.akkertv & Nolan, 
 
 Advocates for A. J. Ross. 
 
 30 r 
 o 
 
 4o *^ 
 
 •»« OB 
 UJ 
 
 EXHIBIT B. 
 Calgakv, Alberta, July 17th, 1890. 
 
 B.R. No. 
 
 On or before the first day of 18 for value received, I 
 
 l)romisc to pa\ to A. J. Ross, or f)rdcr, the sum of $300.00 DOLLARS, 
 
 at their office in Calgary, X.W.T., with interest at 7 per cent, per annum till due, and one 
 per cent, per month after due till paid. Given for one bay horse, branded IR on left 
 shoulder ; one dark grey horse, branded IR on left shoulder ; t+iree mules branded ; one 
 Rainsay wagon ; two .sets double harness. 
 
 Aiul til i-onsideration o( valite rt-ct^ivcil iiiul tlu- :ic«-i)iiKul:itioii nhtiiined, 1 hereby (us to the debt .ind Uahility hcrehv created) 
 waive, reiiniuK-e and tsivt- up all rijflit to exemption troin sei/.tire atui sale tiiider execution of any land, ^oods or chattels that would 
 i>ther\vise b** exempt. 
 
 The title and ownershiii of the ^nod.s for which this Note is xivi-n, shall remain, at my own risk, in A. ). Ross, until this Note 
 or any renewal or renewals thereof is fullv paid; and if default in payment is made, or should I sell or dispose of or attempt to sell the 
 under mentioned land which 1 own. or if for any rea-^on A.J. Uoss, should consi<ler this Note, or any renewal or renewals thereof, 
 JMsecurc, thev have full power power to declare the same due and payadle, even before maturity of 'the same, and also take posscft- 
 lm>n of the said );oods and hold the same until this Note, or any renewal or renewals thereof arc paid, or sell them at public or private 
 sale, the pr(K*ec<ls thereof to be applied on the amount unpaid after deductinur all expenses connected with such taking possession and 
 sale, and takinj; and sale of said ^oods shall not be a release of my liability ftir the balance of said price. 
 
 The land above referred to is Sec. No Tp. No Rg. No No. acres 
 
 Calgary Post Office. • _ 
 
 Agent. • (Sgd.) Thomas MurphY. 
 
 (Sgd.) A. M. Hamilton, Witness. 
 

 
 
 9i 
 
JUDGMENT 
 
 I find that the property in question was sold absolutely by the defendant Ross to the 
 plaintiff and that it was agreed between Ross and the plaintiff that from the time of such sale 
 that the horses should be kept in Ross' premises and that such possession by Ross should be as 
 bailee for the plaintifT, that is, 1 accept the plaintiff's version of the transaction and I hold that 
 this is a sufficient acceptance and receipt under the Statnte of Frauds. 
 
 1 find for the plaintiff on all the issues and order. 
 
 Judgment for the plaintiff for $2 damages and costs against both defendants. 
 
 As between the defendant Murphy and the defendant Ross I find that the defendant Mur- 
 10 phy is entitled to indemnity as against the defendant Ross and I do order that judgment be 
 entered in favor of the defendant Murphy against the defendant Ross for $500 and his costs of 
 defending this action, including a Counsel Fee of $30 but no execution to be issued on such 
 judgment without leave of a Judge obtained by application at Chambers. If the defendant Ross 
 on or before the 2nd January next retire the lien note given by Murphy to him now in the Im- 
 perial Bank, and give the said note up to Murphy to be cancelled and pay the amount t>f tl o 
 judgment and costs awarded to the plaintiff and the co.sts awarded to the defendant Murphy, 
 he may apply to the Judge in Chambers to have ntisfaction of the judgment entered at his 
 cost. If he fail in any of these conditions the "efendant Murphy may apply to the Judge in 
 Chambers to have execution i.ssued on his judgment against Ross for such amount as the Judge 
 20 may on hearing the parties determine to be sufficient to keep him Murphy indemnified and 
 harmless Nothing in this order as between the defendants to affect the plaintiff in any way. 
 
 Correct. K. L. VVktmork. J. S. C. 
 
 IN THE SUPREME COURT OF THE NORiH-WEST TERRITORIES. 
 JUDICIAL DISTRICT OF NORTHERN ALBERTA. 
 
 BETWEEN 
 
 Georue H. Sexsmith, Plaintiff, 
 
 AND 
 
 Thomas Mlrphv and A. j. Rcss, Defendants. 
 
 TAKE NOTICE that 'he defendant A. J. Ross appeals from the verdict agairst him in 
 
 30 this action, and against the judgment of the Honorable Mr. Justice Wetmore, given cr entered 
 
 thereon on the Twenty -seventh day of November, A. D. 1890, .so far as the same concerns him; 
 
 AND TAKE NOTICE that at the Sittings of the Supreme Court of the North-West 
 Territories in Banc, to be held at Regina at 10 o'clock in the forenoon on the 1st day of June, 
 A. D. 1891, or so soon thereafter as Connsel can be heard, a motion will be made on behalf of 
 the said defendant A. J. Ross to the Courtin Banc for an order that the said finding, verdict 
 and judgiYient, obtained against the said defendant in this action, be set aside and a new trial 
 had between the parties, on the ground of the discovery of fresh evidence on behalf of the said 
 
25 ■ • 
 
 defendant since the trial of this actfon, as disclosed in the affidavits of the said defendant, 
 Gc^-fje White, Herbert Morgan and Edward McArthur, this day filed ; or for an order reducing 
 the dama({cs awarded against the said defendant, on the ground that the same are excessive ; 
 
 AND TAKE NOTICE that upon such motion the Court will be moved to grant an order 
 allowing the said defendant to read such affidavits, and the said defendant hereby gives notice 
 of his intention to read such affidavits. 
 
 DATED AT CALCiARV this loth day of December, 1890. 
 
 To the above nannui P/aintiff ntui .l/essn. Costiffan & Howh, his Advocates. 
 
 James Bruck Smith, 
 I© • Advocate for A. J. Ross. 
 
 BETWEEN 
 
 Georck H. Sexsmith, Plaintiff, 
 
 AND 
 
 TriOMAS MURI'HY and A. J Ross, Defendants. 
 
 I, Alexander J. Ross, of the town of Calgary, in the North- West Territories of Canada, 
 Photographer, one of the above named defendants, make oath and say : — 
 
 1. This action was tried on the Twenty-fifth and Twenty-sixth days of November last past 
 at the town of Calgary before the Honorable Mr. Justice Wetmore, and th(, said Judge on the 
 Twenty-seventh day of November aforesaid directed judgment for the plaintiff to be entered 
 
 20 against me. 
 
 2. At the trial of the said action Mary M. Ross and 1, this deponent, were the only wit- 
 nesses examined on my behalf. 
 
 3. That Herbert Morgan, Edward McArthur and George White, all of the District of 
 Alberta, were necessary and material witnesses on my behalf in this action, as shown by their 
 several affidavits made herein. 
 
 4. That I was not aware that the said White, Morgan and McArthur, or any of them, were 
 material witnesses in my behalf in the said action, or were in possession of any knowledge 
 whatever relating to any of the matters in question in this action, until after the trial of the said 
 fiction as aforesaid. 
 
 30 5. I verily believe that if the said plaintiff is allowed to retain possession of said horses, in 
 
 question herein, I will not be able to recover the price thereof from him. 
 
 . 
 
n 
 
26 
 
 6. The said Morgan White and McArthur, were mentioned during the course of the said 
 trial by the plaintifif and several witnesses on his behalf, which mention was the first intimation 
 of any kind I had that they knew or could know of anything in connection with the matters at 
 issue. 
 
 7. After the said trial I took steps at once to send for White to High River, about forty- 
 five miles fiom Calgary, and obtained leave to see Morgan at the North- West Mounted Police 
 Barracks at Calgary, and sent nine miles into the country for McArthur, and ascertained from 
 them that they knew the matters contained in their several affidavits filed on this motion, which 
 contiadict a good deal of the material evidence given against me at said trial. 
 
 *® 8. The said Morgan, White and McArthur reside in the District of Alberta, and had I 
 
 known the nature of the evidence for the plaintiff, and that they could have given any evidence 
 respecting the matters at issue, I would have had them, the said Morgan, White and McArthur 
 at the said trial, but I had no 'dea whatever that they knew the facts contained in their sever i I 
 affidavits anH :i a new trial is granted I can and will subpoena them for the trial and obtain 
 their attendance thereat. 
 
 9. The plaintiff is, as I am informed and verily believe, entirely worthless, and if my horses 
 ;. » left in his posse.ssion pending a new trial or pending this appeal, I may be without any re- 
 course either to recover them or their value. 
 
 10. This application for a new trial is made bona fide and not for any purpo.se of delay. 
 
 iry, in the-v 
 , this 9th 
 
 (Sd.) A. J. RO.SS. 
 
 20 Sworn before me at Calgary, in the 
 North-West Territories 
 day of December, A.D. 1890. 
 (Sd.) W. L. Bernard, 
 
 A Notary Public in and for the North-West Territories. 
 
 
 1t^ 
 
 IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES. 
 NORTHERN ALBERTA JUDICIAL DISTRICT. 
 
 BETWEEN : 
 
 GeoRGK SkX.SMITH. Plaintiff, 
 
 AND 
 
 30 . Thomas Murphy and A. J. Ross Defendants. 
 
 1, Edward McArthur, of the town of Calgary, in the North-West Territories, rancher, make 
 oath and say : . 
 
37 
 
 1. I am the Mr. Mc Arthur referred to in the evidence of the above named plaintiff given 
 on the trial of this action at the last Sittings of this Court at Calgary before the Honorable Mr, 
 Justice Wetmore. * 
 
 2. I was staying at the house of the defendant Ross on his ranche near Calgary at the 
 time the defendant Ross drove the plaintiff out to said ranche to take the measurements re- 
 ferred to in the said plaintiffs evidence. 
 
 3. At the said time the plaintiff asked me " where that grey horse and bay horse of Ross' 
 were," and I said I did not know the horses, and did not know where they were, but I further 
 told him that one Frank Hamilton had been there and drove away four or five head of Ross' 
 
 10 horses into Calgary. 
 
 4. I never told the said plaintiff that the horses in question herein were sold by the defen- 
 dant Ross to the defendant Murphy, or to any other person, and the said plaintiff never intima- 
 ted to me in any way whatever that he the said plaintiff had purchased or agreed to purchase 
 anv horses from the defendant Ross. 
 
 SWOKN before me at Calgary, in thei 
 District of Alberta, this 5th day of j 
 December A. D. 1890. 
 
 W. L. Bkknard, 
 
 .'\ Notary Public in and for the North-West Territories. 
 
 (Sd.) E. McArthur. 
 
 , 
 
 ao IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES. 
 
 NORTHERN ALBERTA JUDICIAL DISTRICT. 
 
 BETWEEN : 
 
 « (iKOKCit: Sex.smitii, Plaintiff, 
 
 .AND 
 
 Thomas ML:kl>HV and A. J. Ross, Defendants. 
 
 I, George E. White, of High River, in the District of Alberta, rancher, make oath and say: 
 
 1. I am the Mr. White referred to by Charles Jack.son and Thomas Jackson for the plain- 
 tiff at the trial of this action before Mr Justice Wetmore at the last Sittings of this Court at 
 Calgary, as being present at a conversation between Jacksons aforesaid and the defendant Ross 
 
 30 about the team of horses in question in this action and remember said conversation. 
 
 « 
 
 2. I drove on that occasion with said Ross to Jackson's place and was presc" throughout 
 the entire conversation between .said Jacksons and Ross and near enough to her . all that was 
 said. 
 
 m 
 
' 
 
 -lirf^t'T. ':■ 
 
28 
 
 3- During such time Sexsmith's name was not mentioned nor was anything said about his 
 being at Ross not letting him have a buckboard to hitch his team in, meaning the team in ques- 
 tion in this action which he now claims to have purchased from Ross. 
 
 4. I remained in their presence till Thomas Jackson went back to where he was working 
 and Charles Jackson, Ross and myself all left the place together for Calgary. 
 
 5. I am sure I would have heard such conversation if it had taken place but did not know 
 of the trial or tell Ross anything about what I knew until to-day. 
 
 6. The conversation was about some cattle and some old machinery that Jacksons vvere 
 wanting to sell, and Ross and I went there to see about buying a horse-rake from them and 
 
 10 had no occasion to introduce either Sexsmith's name or business. 
 
 Sworn before me at Calgary, in the \ 
 District of Alberta, this 2nd day of 
 December, A. D. 1890. 
 (Sd.) John C. F. Bovvn, 
 
 A Notary Public in and for the North- West Territories. 
 
 (Sd.) Geo. E. White. 
 
 IN THE SUPREME COURT OF THE NORTH-WEST TERRITORIES, 
 JUDICIAL DISTRICT OF NORTHERN ALBERTA. 
 
 BETWEEN 
 
 Geokc.I'. H. Skxsmitu, Plaintiff, 
 
 ao . Axi> 
 
 Tno.MAS MURPHV and .\. J. Ross, Defendants. 
 
 I, Herbert Morgan, of the town of Calgary, in the District of Alberta, raiiche hand, make 
 oath and say : — 
 
 1. I was working as a ranche hand for the defendant Ross at his ranche near Calgary dur- 
 ing the month of June last past, and was present at the said ranche on the evening, referred to 
 in the evidence adduced on the trial of this action at the last Sittings of this Court, when the 
 said defendant Ross drove the plaintiiif and one Skerving from Calgary to .said ranche. 
 
 2. The said defendant's band of horses referred to at the said trial s-erc not, nor were any 
 of them, in a corral during the said evening, or at any time during the following day, but the 
 
 30 said horses, including the team in question in this action, were running at large in a field on the 
 said defendant's ranche. 
 
29 
 
 * I 
 
 . ( 
 
 I. 
 
 3. On the morning next following the said evening referred to the said defendant Ross 
 drove away from his said ranchc to Calgary immediately after breakfast, leaving the plaintiff 
 and the said Skerving at his, the said defendant's house, and I swear positively that the said 
 plaintiff, the defendant Ross and the said Skerving were not at the corral on the defendant 
 Ross' ranche, together during any time of the said morning. 
 
 4. In the forenoon of the same day, soon after the said Ross drove away as aforesaid, the 
 said plaintiff and Skerving drove away from the said ranche with a horse and backboard 
 belonging to the said Ross, to look at some land, as I was informed by them and believed, and 
 returning to the said ranchc in the afternoon of the same day, when I accompanied them to 
 
 10 Calgary, where they remained, and I then with said horse and buckboard returned to said ranche. 
 
 5. Two days subsetjucnt to the said day last above referred to, the said plaintiff and Skerv- 
 ing walked through the said Ross' pasture on said ranche, and on their way back to Calgary 
 and in the absence of the said Ross, stopped at the corral where I had placed the said Ross' 
 band of horses for breeding purposes ; this is the only time the plaintiff and Skerving were at 
 the said corral when Ross' horses were enclosed therein. 
 
 6. On two occasions the plaintiff came out to the said Ross' ranche, coming each time on a 
 Saturday evening and remaining over the next following Sunday ; on the first occasion the 
 plaintiff told me he was buying a bay horse and a grey horse, and on the second occasion he 
 told me he came to buy the ranche and all the horses belonging to Ross. 
 
 ao 7. The said defendant never told me that the plaintiff owned any horses, nor that he, Ross, 
 
 had sold or agreed to .sell him any horses. 
 
 (Sd.) Herbert Morgan. 
 
 Sworn before me at Calgary, in thel 
 North-West Territories of Canada, 
 this 6th day of December, A.D. 1890 j" 
 (Sd.) Geo. Murdock. | 
 
 A Justice of the Peace in and for the Norrh-West Territories. 
 
 / y 
 
 1^ i 
 
 ■. t 
 
Ross 
 
 lintiff 
 
 said 
 
 idant 
 
 I, the 
 board 
 1, and 
 :m to 
 inche. 
 
 Jkerv- 
 
 ilgary 
 
 Ross' 
 
 ere at 
 
 e on a 
 •n the 
 on he 
 
 , Ross, 
 
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