■<^. IMAGE EVALUATION TEST TARGET (MT-3) V. ^If^ Lcr 1.0 I.I bi|j£ |Z5 |jo "^^ ^^H L° 12.0 u L25 milU 116 6" fliotDgraphic Sciences Corporation 23 WIST MAIN STtiET WIUTU.N.Y. 145M (71b) 172-4303 %^ ^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques vV Technical and Bibliographic Notaa/Notas tachniquaa at bibliographiquaa Tha Inatituta haa attamptad to obtain tha baat original copy availabia for filming. Faaturaa of thia copy which may ba bibllographically uniqua, which may altar any of tha imagaa in tha raproduction, or which may aignificantly changa tha uaual mathod of filming, ara chackad baiow. D D D D Coloured covers/ Couverture de couleur I I Covers damaged/ Couverture endommagte Covers restored and/or laminated/ Couverture restaurte et/ou peiliculAe Cover title missing/ Le titre de couverture manque I I Coloured maps/ Cartes gtographiques en couieur □ Coloured inic (i.e. other than blue or black)/ Encre de couleur (i.e. autre que blaua ou noirei I I Coloured plates and/or iiluatrationa/ Planches et/ou illustrations en couleur Bound with other material/ RaliA avac d'autres documents irTj Tight binding may cause shadowa or diatortio.'i \/!^ along interior margin/ La re liure serr^e peut causer de I'ombre ou de la diatortion la long de la marge intirieure Blank laavaa added during reatoration may appear within the text. Whenever poaaible, theae have been omitted from filming/ II se peut que certaines pagaa blanchaa aJoutAaa lore d'une restauration apparaiaaant dana la taxte, mais, lorsque ceia 4tait poaaible. cea pagaa n'ont pea At* film^as. Additional commanta:/ Commentairas supplAmentaires: L'Institut a microfllmA la maillaur axemplaira qu'il lui a 4t4 possible de se procurer. Les dAtails de cat axemplaira qui aont paut-Atra uniquaa du point da vue bibliographiqua. qui peuvent modifier une image rrorodulta. ou qui peuvent exiger une modification dans la mAthoda normale de filmage aont indiquto ci-daaaous. lEI Coloured pagaa/ Pagaa da couleur □ Pagaa damaged/ Pagaa endommagAes □ Pages restored and/or laminated/ Pages restauriea et/ou pelllcuMes Pages discoloured, stained or foxed/ Pages dAcolortes, tachetAes ou piquAes j I Pages detached/ D Pages dAtachies Showthroughy Tranaparance Quality of prir Qualit* InAgala de I'lmpreasion inciudea aupplamentary matarii Comprend du matArial suppMmentaire Only edition available/ Seule Mition diaponibla I'vTI Showthrough/ j I Quality of print varies/ I I includes supplementary material/ I — I Only edition available/ Pages wholly or partially obscured by errata alipa, tissuea, etc., have been refilmed to ensure the best possible image/ Les pagaa totalament ou partiallement obscurcies par un feuillet d'errata, une pelure. etc.. ont M filmtes i nouveau da fa^on A obtanir la mailleure Image possible. Til to T^ po of fill Oi bfl th Si( oti fir Sl( or Th sh Til wl Ml dlf en be rig re< mi This item is filmed at tha reduction ratio checked below/ Ce document eat film* au taux de rMuetion indiquA ci-deaaoua. 10X 14X ItX 22X nx 30X n 32X V^ 12X 16X 20X a4X 2SX Th« copy filmad h«r« hM b««n r«produc«d thanks to tho gonorosity of: Library of the Public Archivot of Canada L'axamplaira filmA fut raiiroduit grica A la gAnAroait* da: la bibliothique das Archivaa publiquas du Canada Tha imagas appaaring hara ara tha baat quality possibia conaidaring tha condition and lagibliity of tha original copy and In kaaplng with tha filming contract spaclficationa. Original coplaa in printad papar covara ara filmad baglnning with tha front covar and anding on tha last paga with a printad or illuatratad impraa- slon, or tha back covar whan appropriata. All othar original coplaa ara filmad baglnning on tha first paga with a printad or Illuatratad Impras- sion, and anding on tha last paga w'th a printad or iiiustratad Imprasslon. Tha last racordad frama on aach microficha shall contain tha symbol ->^> (moaning "CON- TINUED"), or tha symbol V (moaning "END"), whichavar cpplias. Laa imagaa suivantas ont 6t6 reproduitas avac la plus grand soin, compte tanu da la condition at da la nattat* da l'axamplaira film*, at en conformity avac las conditions du contrat da filmaga. Las axamplairas orlginaux dont la couvartura en papier est ImprimAa sont filmte en commen^ant par la premier plat at en terminant soit par la darnlAre page qui comporte une empreinte d'impression ou d'illustration, soit par le second plat, salon le cas. Tous las autres exemplaires orlginaux sont filmte en commenpant par la premiere page qui comporte une empreinte d'impression ou d'illustration at en terminant par la darnlAre page qui comporte une telle empreinte. Un des symboles suivants apparaftra sur la darniAra image de cheque microfiche, seion ie caa: le symbols — »• signifie "A SUIVRE", le symbols ▼ signifie "FIN". Maps, plates, charts, ate, may be filmed at different reduction ratios. Those too large to be entirely Included In one exposure are filmed beginning In the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Lea cartaa, planches, tableaux, etc., peuvent Atre fllmte A dar taux de reduction diff Arents. Lorsque la document est trop grand pour Atre rep/oduit en un seui ciicht, il est film* i partir da I'angia auptriaur gauche, de gauche A droite, et de haut an bas, en prenant ie nombre d'images nAcessaira. Las diagrammes suivants illustrent la mAthoda. 1 2 3 1 2 3 4 5 6 ^fii (•'hiinrevii. i ALKXAMH;!! MTLI'NAdllAN i-s. ISAAC IIIM'IIANAN. /■/• i/. ri.AIN'IMl^I^S IMiJ- ANswTJj <)i' i>pj-^i:ni )\N'r- ISAAC r.l'CII.WAN —•*- I'OKONTO . <*^ '"^f^-^.r'i -V}^ §n Aimm^. of Novem- ,bf;r,1858. Ijletween Alexander McClenaohan, who /sues on behalf of himself and all otiier the Sharehold- Er» IN THE Niagara and Detroit Rivers Railway Company, except such of the Defen- dants hereinafter named as are such Share- hplders, Platntiffsy AND Billlfiied 29th Isaac Buchanan and John Mercer, Thomas G. RiDOUT, Charlks Baby, Gkorge Gott, Henry H. Cunningham, John Ferris, John B. AsKiN, James Cuthbertson, and Paul J. Salter and James B. Wilson, George Mac- 91&TH, John Smith, Thomas Rae, Joseph Berthblot, Andrew Thompson and John H. CoRNKLL, and Geomge Southwick, £. P. Stephens, E. S. Warren, -Duncan Stewart, Josiah Strong and Henry McKenna and Colin Munhoe, The Honorable Michael H. Foley, Walker Powell, D. B. I^RESBY, John McKay, David Christie, and John G. Kolfage, and The Niagara and De- TuoiT Rivers Railway Company, Defendants. CJlTY qW TCAONTO, i To \ the Honorable William Hume Blake, Chancellor of Upper Canada. The Bill of Complaint of Alexander McCi.enaohan, of the Town of Woodstock, in the County of Oxford, Gentleman, who sues on behalf of himself and all pther the Shareholders in The Niagara and Detroit illiyers Railway Company, except such of the Defen- dants hereinafter named, as are such Shareholders, ^IfEWSTH AS FOLLOWS : — . ,1. By a certain Act of the Parliament of Canada, passed in the sixteennh year of ller Maji'sty's Reign, intituled 1 ■■ ' ■ • ■■" ■ . ■ • ■ " An Act to amend and extend the Charter of the Wood- stock and Lake Erie Railway and Harbour Company/' the said Company were incorporated and had given to them powers to construct a Railway on and over any part of the country lying between the Town of Woodstock and the Harbours ol Port Dover and Port Burwell, inclusive, on Lake Erie. 2. By an Act passed in the sixteenth year of Her MajvJsty's Reign, intituled " An Act to amend and extend the Charter of the Woodstock and Lake Eric Railway and Harbour Company," the said Company were authorized to extend their Railway from Port Dover or from Simcoe, or from any part between those places to Dunnville, in the County of Haldimand. 3. By a certain other Act of the Parliament of Canada, passed in the eighteenth year of Her Majesty's Peign, and intituled " An Act to amend the Charter of the Woodstock and Lake Erie Railway and Harbour Company,' power was conferred on the said Company upon certain proscribed terms being complied with to extend their Rail- way from Dunnville, in the County of Haldimand, to, at or near the Suspension Bridge across the Niagara River, in the Township of Stamford, in the County of Welland ; and also to extend their Railway from Otterville, in the County of Oxford, or from Port Dover, in the County of Norfolk, or from any point between the two last named places to St. Thomas in the County of Elgin ; and by the same Act power was also given to the said Company by resolution to be adopted at a Special General Meeting of Shareholders, to amalgamate and unite with any other Railway Company. 4. By a certain other Act passed in the eighteenth year of Her Majesty's Reign, and intituled an " Act to incorporate the Amhertsburg and St. Thomas Railway Company," the said last mentioned Company was incor- porated and authority was thereby given to it, to construct a Railway from the Town of Amnertsborg to the Town of St Thomas ; and power was also thereby conferred on the said last mentioned Company, to amalgamate with any Kaihvay Company cast of St. Thomas, terminating i ind ive. either at the Mngaia River or at any port on Lake Ontario, ur at either of them. 5. One William Wallace having in the month ot June, one thousand eight hundred and fifry-six, subscribed for stock in the said Amhertsburg and St. Thomas Railway Company, to the amount and value of fifty thousand pounds ; and having subsequently duly assigned and trans- ferred to the said Isaac Buchanan, the whole of such stock ; he the said Isaac Buchanan, after the said transfer of the said stock to him, and whilst he was the holder thereof, and sometime in the month of July, one thousand eight hundred and fifty-six duly paid into and deposited in the Bank of Upper Canada the sum of fifty thousand pound.^ to the credit of the said Amhertsburg and St. Thomas Railway Company, as and by way of deposit of ten per centum on the amount of such five hundred thousand pounds of Stock, pursuant to the provisions of the said Act of Incorporation of the said Amhertsburg and St. Thomas Railway Company. 6. Your Complainant became in the month of Novem- ber, one thousand eight hundred and fifty seven, the holder of ten Shares of twenty-five pounds each, in the Capital Stock of the said Amhertsburg and St. Thomas Railway Company, upon which there had been paid up, pursuant to the said Act of Incorporation, a deposit of ten per centum, and your Complainant was the holder of the said Shares at the date of the amalgamation between the said Wood- stock and Lake Erie Railway and Harbour Company, and the said Amhertsburg and St. Thomas Railway Company hereinafter mentioned. 7. Upon the twenty- first day of November, one thousand eight hundred and fifty-seven, the Defendant, John Mercer, was the President, and the Defendants Thomas G. Ridoiit, Charles Baby, George Gott, Henry H. Cunningham, John Ferris, JohnB. Askin, James Cuthbertson, and Paul J. Salter, were the Directors of the said Amhertsburg and St. Thomas Railway Company, duly constituted and elected pursuant to the said Act of Incorporation of the said last mentioned Company. 8. Upon the said twenty-first day of November, one thousand eight hundred and fifty seven, there w-.s standing to the credit of the said Amhertsburg dtid St. ThohifiM itiiilw^ay Cumpuny, in the Bank of Upper Canada, liHnoiiktfst other monies, the s\xm of fifty-thbusand pouhdo being the said deposit of ten per cent., which had been as t^foremiid paid up by the said Defendant, Isaac Buchanan, on ihe said five hundred thousand pounds of Stock, so held by him as aforesaid. 9. On the said twenty-fiirst day of November, one thoti- sand eight hundred and fifty-seven, at a meeting of the stiid Directors of the said Amhertsburg and St. Thomas Uailway Company, duly convened, and dt which Were present all ol the said Defendants, the then President {ihd Directors of the said last mentioned Company, a resolu- tion was unaiiimously passed at the instncie of the said Defendant, Isaac Buehanan, by which the said Bodrd of Directors determined and resolved that the sukn of fifty thousand pounds then standing to the credit, and being l»art of the funds of the said last mentioned Company as ^foresaid, should without any consideration whatever therefor, and by way of bonus or gift merely, be j}Aid to the said Isaac i^uchanan, and the President arid ^e the said resolution, and authorized in manner afoi^sa'id the payment of said money to the said Buchanan, by so doing committed a Breach of Trust and duty as dUch Dir- ectors, and the said Isaac Buchanan (who had full notice T Am- daid aAd n the for of all the cltrcumstances aforenaid attending the passing of the said resolution, and who well knew that the said Dir- ectors were acting wrongfully in passing the said resolu- tion and in causing and authorizing (he said fifty thousand pounds to be paid to him,) as your Complainant expressly chafes, concurred and participated in such Breach tf Trnst, and having alone reaped all the fruits thereof, is liable to make good the same. 12. Resolutions having been passed at special meetiil^fs of the Shareholders of the ftaid Woodstock and Lake V,t\c Railway snd Harbour Company, and the said Amherstbnrg and St. Thomas Railway Company, authorizing the amal- gamation of the said two Companies, iii pursuance of the powers conferred upon them by the said Act of Parlia- ment; such amalgamatioti was, by indenture, beaHng dale the eleventh day of February, one thousand eight hundi^d fifty-eight, and made between the said Wo«*d- stock and Lake Erie Railway and Harbour Company of the first part, and the Amherstburg and St. Thomas Railway C<>mpany of the second part, carried into eHif»ct, aJid the said two Companies were united and amalgamated thereby itetb btiie Coinpany, under the name of the Great South Western Railway Coinpany. IS. By the said indenture the following petfibns were appointed to be Directors of the said amalgatnated Com- pany, that is to say the said Defendants, John M^ircer, James O. Wilson, George Macbeth, Paul Saulter, John Ferris, John Smith, Thomas Rae, Joseph Berthelot, An- drew Thompson, Joseph Mercer, John H. Gohiell and Cliaries Baby, and your Complainant, a majority of whom were declared to be a quorum, and the said indenture (to which the Plaintiffs crave leave to refer, as the same is wet fbrth in the Schedule, to the Act of Parliament next herein after mentioned), also contained in pursuance of the hereita- before mentioned Acts 6f Parliament, many provisions as to the election of the Directors of the said amalgamated Company. 14. By a certain other Act of Parliament passed in the year one thousand eight hundred and fifty-eight, aiid intit- uled *^ An Act to amend the Charter of the amalgamaited Company, heretofore intituled the Great South Western I 6 llnilwny C'nmnany, und toclmngt' its name to the * Niagara und Detroit Kivers RaiUvay Company/" the said deed of aiiialgamatiun [except as in the said Act provided] wa^ confirmed, and the name and style of the said amalga- . muted Company was changed to the said *^ Niagara und Detroit Riven Railway Company." 15. It was further pro 'idea in and by the said last men- tioned Act, that an Election of Directors should take place at noon, in the Town Hall, in the Town of St. Thomas, in the County of Elgin, on the second Tuesday after the passing of the said Act, and that the Directors then elected sdould hold office until the next annual Elec- tion of Directors thereafter, to be held on the first Tuesday in June, in the following year, as by the said Act to which your Complainant craves leave to refer, will fully appear. 16 Upon the said amalgamEition taking place, your Com • plainant became thereupon, and by the effect thereof, and of the said several Acts uf Parliament passed prior thereto, a Shareholder in respect of this said ten Shares in the said Company thereby created, and upon the said last men- tioned Act of Parliament of one thousand eight hundred and fifly-«ight, being passed, your Complainant became a Shareholder in respect of the same ten shares in the said Ckimpany thereby created, the said Defendants, the 'Niag- ara and Detroit Rivers Railway Company, and your Com- plainant, still is such Shareholder. 17. Upon the twenty-fourth day of August, one thousand eight hundred and fiity-eiffht, being the second Tuesday after the passins; of the said Act of one thousand eight hundred and fitty-cight, a General Meeting of the Stock- holders of the said amalgamated Company was, in accor- dance with the said last mentioned Act, held at noon of that day, in the Town Hall of St. Thomas, in the said County of Elgin, and the persons then present being Stockholders in the said Company proceedea to the Elec- tion of Directors, when a riot and disturbance took place in the said Town Hall, in which the said Stockholders, or persons claiming to be such, were assembled, and after much confusion, noise and violence, the said persons split and divided into two contending parties, each of which assumed to ^be the majority of Shareholders in the said Company and each of which proceeded on such aofiuinp- tion to elect Directora, when one of the said contending parties assumed to elect Directors of the said Company certain of tbe Defendants hereto named, viz: the Haid Defendants, George Southwick, E. P. Stevens, E. S. Warren, Duncan Stewart, Charles Hahy, Joseph Mercer, Josiah Strong, John Ferris, Henry McKenna, Alex- ander McClenaghan, Paul Salter, John Mercer, and Jamett Cuthbertson. And the said other party assumed to elect as Directors of the said Company certain others of the said Defendants hereto, viz : the said Defendants, George Mac- Ijeth, Colin Munro, the Honoural)le Michael H. Foley, James G. Wilson, Walker Powell, Andrew Thompson, John H. Cornell, John Smith, D. H. Presby, John McKay, David Christie, 'fhomas Uae and John G. Kolfage. 18. Each of the said several bodien of Directors claim to be the legally constituted governing Vody of the said Niagara and Detroit Rivers Railway Coin^uny, and insist upon the rights and powers appertaining to such bodies, and to control the affairs of the said Tomppny, and n suit is now depending in this HonourabI Jourt, inMi'.ated by, Ml) firstly mentioned set of Directors or per onu claiming to be Directors in the niine of the said ];i8t mentioned Company, against the secondly mentioned class or set of persons claiming to be Directors, for the purpose of having the questions of the rightd of the said contending parties declared and determined by the decree of this Honourable Court. 19. The Shareholders of the said Company, other than the defendants and your Complainant, are very numerous, and are unknown to your Complainant, and it is not in the power of your Complainant to ascertain the names of such Shareholders so as to make them parties by name to this suit, and by reason of their number ( such Shareholders being more than forty in number, it -would be very inconvenient so to do.) 20. Owing to great uncertainty and confusion of the affairs of the said Company in consequence of the said contest between the said several bodies respectively claiming to be Boards of Directors, there are no recognized legal guardians of the rights and interests of the said ev ■■<■ s f f > I i '. 8 Company to sue in respect of the said Breach of Trust, for the recovery of the said trust monies so wroogfuUv appro- griated by the said illegal payment to the said Isaac luohanai. . 21. The said Isaac Buchanan, being a person Ifu-gely engaged in commercial transactions, and bein^ a^Bo involved in great pecuiiiary difficulty, arising out ot many Kailway Hpeculations, in which he has been engaged, your Complainant is apprehen!«ive that the said sum of^fiy tb'msand pounds will be lost to the said Company, to ^he great prejudice of the Sbareholdera thereof, unless the said l^uohanan is forthwith ordered to pay the same into this Honourable Court, to abide the onler of this Honourable Court. Your Complaintant therefore prays that the pftyment of the said sum of fifty thousaod pounds to the said Defendant, Isaac Buchanan, may be declared by the Decree of this Honourable Court to have been a Breach ofTvuston the part of the Direotors authorizing the the same, andthat the said Defendant, Isaac Buchanan, may be ordered and decreed to repay and make good the same \o the said Defeodants, the J^is^gfMti antd Detroit Aivers Railway Company, or tt^at the sj^f4 Directors, who authorized the paymept of the si^me Ho the said 'Isaac Buchanan, may be ordered to repay aQd make good the same in inanaQr {|fores(|jid} AP^ thfit.tl|e s{|id Isaac Buchanan, or the ^s^\^l Dif^otprs, may be (Hdered to pay the said sum of fifty thousand poUpds into Court, to the credit of thif cause, to abide tbe order qf'thisiHonourabie Couft. And that for the purposes aforesaid, all proper direction may be given, and accounts ta^ep, and fpat your Complainant may have such furt|)er apd oth^r fvellefras to your Honour may seem meet. ^nd your Complainant will ever pray, £^c. R-M 9 THE ANSWER Of Isaac Buchanan, one of the defendants to the Bill oi complaint of Alexander McClenaghan, the above named Plaintiff, (sworn on 10th, and filed on lith January, 1859.) in answer to the said Bill, I, the said Isaac Buchanan, say as follows : — 1. That by the Act in the said Bill of Complaint men- tioned to have been passed in the Eighteenlh year of Her Majesty's Reign intituled an " Act to incorporate the Ara- herstburg and St. Thomas Railway Company, it was among other things provided lliat the defendants, George Southwick, George Macbeth, and John G. Kolfage, together with one John M'Leod, one Edwin Larwill, one Elthan Paul, and one Arthur Rankin, hereinafter called the Pro- visional Directors, or a majority of them should cause Books of Subscription to be opened in the towns of Am- herstburg, Windsor, Chatham, and St. Thomas, for thirty days, and afterwards in such other places as they should from time to lime appoint, until the meeting of shareholders thereinafter provided, for receiving of bubscriptioiis of per- sons willing to become subscribers to the undertaking by the said Act authorized, and for that ].urpose that it should be their duty, and they were thereby required to give public notice in one or more newspapers published in the said towns, as they or a majority of them might think proper, of the time and places ii* which such Books would be opened and ready for receiving subscriptions, as aforesaid, and the persons authorized by them to leceive such sub- scriptions, and the bank or banks into which the ten pounds per cent thereon by the said Act required to be paid, should be paid, and the time by the Act limited for such payment, and that every person whose name should be written in such Books as a subscriber to the said undertaking and who should have paid within ten davs after the closing of the said Books into such incorporated Bank, or any ot its branches or agencies, ten per centum on the amount of stock 8o subscribed for to the credit of the said Company, should thereby become a member of the said Company ; 2 10 and further, that so soon as five hundred thoustind pounds of the capital stock of the said Company should have been subscribed, and the ten per centum should be paid thereon, as aforesaid, a general meeting of the shaiehofders should be held at the town of Amherstburg, or St. I'homas, or some intermediate place, for the purpose of putting the said Act into effect, which meeting should be called by the seven persons hereinbefore named, and called the Provis- ional Directors, or a majority of them ; thirty days public notice thereof being given by advertisement, as in the said Act mentioned ; at whieh said general meeting the share- holders having paid ten per cent on their stock, subscribed as ai'.iresaid, should choose nine Directors of the said Company, and having the qualification in the said Act mentioned. And by the said Act it was further provided that no shareholder should be eligible to be elected a Director unless he should be a bona fide stockholder in the said Company to the amount of two hundred and fifty pounds, and unless he sheuld have paid up all calls (m such stock ; and by the said act the said Company were empowered to amalgamate with any Railway Company, to the east of St. Thomas, either to the Niagara River, 'or to any port on Lake Ontario, or to both of them. 2. That in pursuance of the provisions of the said Act, the said Provisional Directors caused four several Books for subscription of stock to be opened, as required by the Act, and in the month of September, in the year of our Lord one thousand eight hundred and fifty-five, caused an advertisement to be published, as required by the Act, whereby (hey limited a day in the month of December then next for closing the said Sirbscription Books, and whereby they required the ten per cent deposit required by the said Act, to be paid into the Bank of Upper Canada, its branches or agencies. 3. That afterwards, the said Provisional Directors, by advertisements published in the manner as required by the Act, enlarged, and from time to time extended the period for closing the eaid Subscription Books, but never did alter, by any public advertisement, the Bank into which the said deposits were to be paid. •1. That one of the Books so opened for the receiving of t I II subscriptions of stock was delivered to the defendant, John G. KoUage. 5. That the said Arthur Rankin, one of the said Provis- ional Directors, and being then a Member of the Provincial Parliament, applied to the Legislature in the Session held in the nine eenth and twentieth years of Her Majesty's Reign, for an Act to amend the said Act incorporating the said Amherstburgh and St. Tliomas Railway Company, and thereupon an Act was passed intituled *' An Act to amend and extead the Charter of the Amherstburgh and St. Thomas Railway Company," and such Act received the Royal Assent on the first day of July, in the year of our Lord <»ie thousand eight hundred and fifty>six. 6. That as I verily believe the object of the said Arthnr Rankin, in procuring the passing of the said last mentioned Act, was with the view of obtaining the control of the said Company for his own personal and pecuniary gain, and that with that view he had many interviews with one Samuel Zimmerinan, since deceased, a man of large cap- ital, and by occupation a contractor for the construction of Railways and other public works, during the progress of the said last mentioned Act through the Legislature ; and that finally on the third day of July, in the year of our Lord one thousand eight hundred and fifty-six, immediately after the passing of the said last mentioned Act, the said Arthur Rankin, in pursuance of verbal arrangements pre- viously made with the said Samuel Zimmerman, entered into an agreement in writing with the said Samuel Zim- mermam, whereby it wae among other things agreed that the said Arthur Rankin should use his influence to endeav- our to procure for the said Samuel Zimmerman, a favour- able contract for the building of the Railway of the said Amherstburgh and St. Thomas Railway Company from Amherstburgh to St. Thomas, and that he, the said Arthur Rankin, should participate therein with the said Samusl Zimmerman, with a privilege reserved to the said Samuel Zimmerman, at any time within twelve months, of purchas- ing the interest of tL i said Arthur Rankin in such contract at and for the sum of twenty-five thousand pounds, and that the said Arthur Rankin should use his influence as a ProvJsia 13 e Board of as to secure era m igno- jand procured further subscriptions to be made in the [name of six other persons, friends of the said Samuel Zim- [merman, as subscribers for stock in the said Company, to jan amount in the aggregate which together with the amount so subscribed for by the said Arthur Rani^in and his friends, amounted to a sum a little in excess of the said [sum of two hundred and fifty thousand pounds in the said Act passed in the session held in the nineteenth and twentieth years of Her Majesty's Reign mentioned. 9. That, thereupon the said Arthur Rankin, without having explained to the said Provisional Directors present at such meeting, the circumstance of his having maoe such agreement as aforesaid with the said Samuel Zimmerman, procured the said Provisional Directors to order the closing oif and to close, all the said books so as aforesaid opened for the subscription of stock in the said Company. 10. That, several months prior to the said month of July in the year of our Lord one thousand eight hundred and fifty-six, the Directors of the Great Western Railway Company, as well those residing in Canada as others of them residing in England, had observed the importance and advantage it would be to the shareholders in the Great Western Railway Company to subscribe for and acquire the Stocks, as well of the said Amherstburgh and St. Thomas Railway Company as of a certain other Company called the Woodstock and Lake Erie Railway and Har- bour Company, for the purpose of constructing, in the interest of the shareholders of the said Great Western Rail- way Company, the Railways by the said Amherstburgh and St. Thomas Railway Company, and the said Wood- stock and Lake Erie Railway Company authorized to be constructed. 11. That as one of the chief of the original promoters of the said Great Western Railway Company, which I was, I entertained, and was known to entertain the view, that it would be for the public interests, and for the interest of the stockholders in both works, that the said Great Western Railway and the Railways authorized to be constructed by the said Amherstburgh and St. Thomas Railway Company, and the said Woodstock and Lake Erie Railway Company should be conducted and owned by one and the same body 14 of Shareholders, and the subject had for many months prior to the said mocth of July become a subject of deep interest and consideration, upon the part of the Canadian Directors of the Great Western Railway Company, and of the Directors of the same Company residing in England, and of all per- sons interested in the success of the latter Company, and had been the subject of frequent conversations between the Directors of the said Great Western Railway Company in this country and myself. 12. That during several months prior to the said month of July a continued correspondence had been carried on between the Directors of the said Groat Western Railway Company residing in Canada, and the Directorts of the same Company residing in England, upon the last mentioned subject, and such correspondence had so far progressed that in or about the month of June in the said year of our Lord one thousand eight imndred and fifty-six, it appeared by such correspondence from time to time communicated to me by the Vice President of the said Great Western Rail- way Company, who was the organ of the said Company, through whom such correspondence was carried on, that the English Directors of the said C'tmpany coincided in the said opinion, that it would be of :he utmost importance and value, that the said Railways authorized to be con- structed by the said Amherstburgh and St. Thomas Rail- way Company, and the said Woodstock and Lake Erie Railway Company, should be constructed by and for the benefit of the Shareholders in the Great Western Railway Company, and they expressed themselves desirous of efiect- ing such object. 13. That the majority of the Directors of the said Great Western Railway Company, both those residing in Eng- land and in this country, and all such Directors then in this country, concurred m this view, with the exception only that th j managing Director of the said Company was of opinion, that the contemplated benefit, should be ofiered to the said Shareholders, in the said Great Western Rail- way Company, through the said Samuel Zimmerman. 14. That after the passing of the said Act, which teceived the Royal assent on the said first day of July, in the year of our Lord one thousand eight hundred and nfty UJii puppnp'^iv^i^^ 111 iKwwiiDijpr^nnffiiij,^ 15 ix, and after the closing of the said Stock Books in the ud Amheratbnrgh and St. Thomas Railway Company, on said fifth day of July, and after that the design of the lid Arthur Rankin in procuring such Books to be closed, lely, to aid in carrying into effect his agreement with le said Zimmerman, had become known or suspected, and lortly before the fifteenth day ol the said month of July, at the request of the Vice President and other Directors ' the said Great Western Railway Company, and for the snefit of the Shareholders in the said Great Western Rail- ray Company, and because the said Company could not IS a Company interfere in the matter, came into communi- cation with John McLeod, one of the said Provisional Jirectors, and with one Theodore J. Park, who had ssppctively subscribed their names for Stock in the said )ook, so as aforesaid delivered to the said John G. Kolfage, who, as the said Vice President informed me, pro- Ifessed to have authority from William Wallace to dispose }f twenty thousand Shares of Stock in the said Company, lUeged to have been subscribed for by the said William 'Wallace, for the purchase of such twenty thousand Etres so alleged to have been subscribed for by the said William Wallace. 15. That I did thereupon come into communication with Ithe said John McLeod and Theodore J. Park, who then }ged that they were authorised by the said William Wallace to dispose of the said amount of Stock so subscribed r, by and in the the name of the said William Wallace, to tinch person or persons as would be willing to advance the leposit thereon required by the Act incorporating the Company, and as they, the said John McLeod and Theodore J. Park might think best for the interest and success of the said Amherstburg and St. Thomas Railway. 16. I say that I had thereupon interviews with the Vice 'resident of the said Great Western Railway Company aiid others of the Directors of that Company who were acting concert for the purpose of endeavoring to procure the said Amhertsburg and St. Thomas Railway to be con- structed by the Shareholders of the said Great Western lilway Company ; and eventually arranged and agreed Jlween us, that, in the event of my becoming, and for the il liH wmm 1 1 ! I ^4 f I « 5! "i r i 16 purpose of enabling me to Income, on behalf of the Share- holders in the Great Western Railway Company, possessed of the said amount of Stock so alleged to have been subscribed by and in the name of the said William Wallace, the Vice President of the said Great Western Railway Company, acting upon the views expressed and concurred in by and between the majority of the Directors of the said Great Western Railway Com- pany, as well those residing in £ngland us in this country, should provide that a sufficient sum of the funds of the said Great Western Railway Company standing to the credit of the said Company in England, and unpro- ductive there, should be transferred to this country and be lodged in the Bank of Upper Canada, being the Bankers of the said Great Western Railway Company, to the credit of the said Great Western Railway Company, upon the understanding that such sum should not be drawn by the said Great Western Railway Company out of the said Bank of Upper Canada, until the object of securing the Stock in the said Amherstburg and St. Thomas Railway Company being taken by the Shareholders of the said Great Western Railway Company should be attained ; and that upon the faith of such arrangement, the said Bank of Upper Canada, as the Bankers of the said Great Western Railway Company, should open an account with the Amherstburgh and St. Thomas Railway Company, and should credit that Company with the amount of fiifty thousand pounds, being the ten per cent deposit required upon the said Stock so alleged to have been subscribed by the said William Wallace ; and should open in like manner an account with me debiting me with the amount of such fifty thousand pounds deposit ; and that the said Bank of Upper Canada should in like manner credit the said Amerstburgh and St. Thomas Railway Company with the deposits required to be paid upon Stock subscribed for in the said last mentioned Company, by persons acting in concert with me, and whose deposit should be arranged for with the said Bank of Upper Canada through me, and through the debit account so to be opened in the books of the said Bank of Upper Canada in my name as aforesaid ; and thereupon the negotiations between me, on behalf of 17 the Shareholders in the said Great Western Railway Company, and the said John McLeod and Theodore J. Park, fur the purchasing the Stock so alleged to have been subscribed lor by the said William Wallace, were on or about the fifteenth day of the said month of July finally concluded, and the same as concluded were contained in the documents following, that is to say, a letter addressed and signed by the said John McLeod and Theodore J. Park, and delivered to me, and in the articles of agreement and indenture hereinafter mentioned. 17. That the said letter so addrested to me was in the figures, or, to the purport and effect following, that is to say :— " Mr. Isaac Buchanan, " Dkar Sir, — As agents for Mr. Wm. Wallace, who has left entirely in our hands the disposal of his interest in his subscription of five hundred thousand pounds in the stock of the Amherstburgh and St. Thomas Railway Company, we undertake that if you will give him the loan of the ten per cent, deposit necessary to said stock, or pay the amount to any party or parties who may have lent him said amount, we will guarantee to you the repayment of the said advance, which will amount to fifty thousand pounds. It is, however, understood, and we hereby guarantee, that ' e will transfer the said stock of five hundred thousand pounds to your name, or any other or others you may appoint, thus cancelling his debt of fifty thousond pounds to you. We hereby also guarantee to you that Mr. Wm. Wallace will join us as parties to an agreement this day gone into be- tween you and certain of the original subscribers to the Stock of the Amherstburgh and St. Thomas Railway Com- pany, and be guided entirely by you in the selection of Directors of the said Company. " We are, dear Sir, (Signed) "JOHN McCLEOD, « THEODORE J. PARK " 18. That the said agreement referred to in the said letter is in the words and figures, or to the purport and effect following, that is to say : h't IS *^ It is agreed between Theodore J. Park, John McLeocJ, and others who may hereafter sign this agreement, repre- senting original Stock taken by such persons in the Am- herstburgh and St. Thomas Railway Company, of the one part, and Isaac Buchanan of the other part, in consideration of shares in the Amherstburgh and St. Thomas Railway Company subscribed for, by and in the name of William Wallace, amounting to five hundred thousand pounds being assigned by the said William Wallace to the said Isaac Buchanan, he the said Isaac Buchanan agrees to use the power which the assignment of the said shares shall vest in him to procure a terminus of the said Railway at Amherst- burgh as well as at Windsor, and will make an understand- ing with the parties to whom he shall transfer such shares that they shall carry the said Road to Amherstburgh. [*' And the said Theodore Park and John McLeod agree with the said Isaac Buchanan, that in the event of the said Isaac Buchanan, being unable to eflect such an arrangement whereby the said Railway shall nave a terminus at Amherstburgh, tbev, the said Theodore Park and John McLeod, will with- in sixty days after receiving from the said Isaac Buchanan a written notice of his failure to effect such arrangement, procure to be re- funded to him all moneys advanced by him on account of such shares, and procure him to be released from all obligation and liability in respect thereof.] And it is further agreed be- tween all the parties signing, or who shall sign this agree- ment, that on the said Isaac Buchanan advancing or lending to subscribers to the stock of the said Company, the means of paying the deposit thereon to entitle them to vote, every co-operation will be afforded by such persons, in satisfying the capitalists whom Mr. Buchanan expects to interest in the immediate construction of the Amherstburgh and St. Thomas Railway, especially that the Directors who shall be appointed at the first election of Directors of the said Company upon the votes given in respect of such stock, shall from time to time, when required, retire from the Board of Directors to make room for other gentlemen in I ^ S £.S "^ S B O ® 3 Iff 19 England or elsewhere, who may be wished by the Share* holders to be procured by Mr. liuchanan, to be Directors of the said Company." 19. That the said agreement was signed by the said Theodore J. Park, John McLeod, William Wallace and myself. 20. That the said Indenture was in the words and figures, and to the purport and eflect following, that is to say :— " This Indenture, made the fifteenth day of July, in the year of our Lord one thousand eight bunded and fifty-six, between William Walluoe, Esquire, of Fort Erie in the township of Bertie, of the first part, and Isaac Buchanan of the city of Hamilton, llsquire, of the second part. Whereas the said Willian Wallace is an original sub- scriber for shares in the Books of Stock of the Amherts- burg and St. Thomas Railway Company, to the amount of five hundred thousand pounds of lawful money of Can- ada, being twenty thousand shares in the capital Stock of the said Company ; and whereas the said Isaac Buchanan has advanced and paid to the said William Wallace the sum of fifty thousand pounds for the purpose of paying to, and to the name and credit of the said Company a sum of ten pounds per centum upon the said Stock, payable under the Act incorporating the said Company, which said advance has been made by the said Isaac Buchanan upon an agreement made with the said William Wallace, that he, the said William Wallace, shall as soon after the first election of Directors of the said Company as possible, assign and transfer in tho Books of the &aid Company the said twenty thousand shares unto and into the name of the said Isaac Buchanan, or unto or into the name or names of such other person or persons as he shall appoint, and that he, the said William Wallace shall, in the meantime, hold the said twenty thousand shares as a Trustee for, and for the use and benefit of the said Isaac Buchanan, his Exec- utors, Administrators and Assigns. Now this Indenture witnesseth, that in consideration of the said sum of fifty thousand pounds so advanced and paid by the said Isaac Buchanan to the said William Wallace, he, the said William Wallace doth hereby for himself, his Executors and Admin- 1 1 > 80 istraturs covenant with the ijiaid haac Buchanan, hiH Executors, Adiuinistrutors and Assigns, that he, the said William Wallace, hiH Executors or Administrators, shall and will, as soon us posf^ible after the first election of Dir- ectors of the suid Company, assign and transfer in the books of the said Company the said twenty thousand shares in the capital stock ot the suid Company, unto and into the name or names of the said Isaac Buchanan, his Executors, Administrators or Assigns, or unto and into the name or names of such other person or persons as he or they shall direct and appoint. And that in the meantime, the said William Wallace, his Executors or Administrators shall and will hold the said twenty thousand shares as a Trustee or Trustees, for, and for the sole use and benefit of the said Isaac Buchanan, his Executors, Administrators, or Assigns, and that the said Isaac Buchanan, bis Exec- utors, Administrators or Assigns shall receive to his and their own sole use and benefit, all the scrip certificates to be issued for or in respect of the said twenty thousand shares ; and further, that the said William Wallace shall and will, at the first election to be held for electing Direc- tors in the said Company, vote in respect of the said twenty thousand shares for such persons to be Directors of the said Company as the said Isaac Buchanan, his Execu- tors, Administrators or Assigns shall name or direct, or that the said William Wallace, his Executors or Adminis- trators, shall and will exooute and deliver a legal proxy to the said Isaac Buchnnan or to such other person or per- son as he, the said Isaac Buchanan, shall name and appoint, empowering the said Isaac Buchanan, or such other person to vote at the said first election of Directors in respect of the said twenty thousand shares in the name of the said William Wallace, his Executors or Administrators. And the said Isaac Buchanan, for himself, his Executor", Administrators and Assigns, covenants with the said Wil- liam Wallace, his Executors and Administrators, that he, the said Isaac Buchanan, his Executors, Administrators and Assigns, shall and will accept the transfer of the said twenty thousand Shares, and indenmify and save harmless the said William Wallace, his Executors and Administra- 91 lors, from the payment of nil calls to be made in respi'ct of the Hnid twenty thousand Sliares." That the said Indenture was executed by the said Wil- liam Wallace and me. 21. That the sa d sum of fifty thousand pounds in the sa'd Indenture mentioned to have been advanced by me to the said William Wallace, was the same sum of fifty thousand pounds procured to be entered in the Books of the Bank of Upper Canada to the credit of the said Am- hertsburgh ana St. Thomas Railway Company, through the medium of the debit of ^fty thousand pounds chnrged lo me in an account opened for the purpose with the said Bank of Upper Canada, under nnd in pursuance of the arrangement in that behalf made with me by the Vice President and others the Directors of the said Great Wes- tern Railway Company as herein set forth. 22. That the said agreements herein before set forth were entered into by me at the direction and request of the said V f -President and Directors of the said Great Wes- tern K way Company, and the said several documents were prepared by the Solicitor of the said Great W estern Railway Company, by the like direction. 23. That thereupon on the same fifteenth day of July in the year of our Lord one thousand eight hundred and fifty- six, the Vice-President of the said Great Western Railway Company delivered to the said Bank of Upper Canada Bills drawn by him with the sanction of the Directors of the said Company in this country, upon fimds of the said Great Western Railway Company lying unproductive in England, to the amount of foity thousand pounds sterling, for the purpose of having the proceeds thereof lodgec? with the said Bank of Upper Canada, lo the credit of the said Great Western Railway Company ,'upon the understanding land terms in that behalf hereinbefore mentioned, and for [the purpose aforesaid. 24. That upon the said Bills being so delivered to the [said Bank, and upon the faith that they would be honoured ?on maturity, the said Bank opened two accounts, the one such accounts being with the said Amherstburg and ^t. Thomas Railway Company, whereby the said Bank mmss .1 . 1 1 ■ fj: . 1 1 ' ■ 1 il 'i 82 credited such Company as and for deposits upon shares in the said Company, subscribed by the said William Wallace, under the said agreement made with me and the said Theodore J. Park and John McLeod, the sum of fifty thousand pounds, or thereabouts, and the other of such accounts debiting me with the like sum. 25. Tiiat I entered into the said arrangements, whereby I became debited with such amount in the Books of the said Bank, at the request of the said Vice-President and Directors of the said Great Western Railway Company, and solely for the benefit of the said Great Western Railway Company, and their shareholders, and not for any personal object of my own, and I did so upon the faith and belief that the said arrangement would have been carried out by the said Great Western Railway Company and their shareholders, which faith and belief I hesitated not to enter- tain, as the object desired to be attained was unquestionably for the benefit of the shareholders in the said Cc^jT-y, and because the said Company and their shareholders had on two previous occasions made use of me for similar pur- poses, the one of such occasions being in the year one thou- sand eight hundred and fifty-three, when they procured me to subscribe in my own name for stock in the si^id Great Western Railway Company, to the amount cf two hundred and fifty thousand ^^ounds, to prevent such stock falling into the hands of person^ tiesirous of acquiring it for purposes ad- verse to the interest of the said Company ; ana the other of such occasions being in the year one thousaud eight hundred and fifty-two, when they, in like manner, procured me and other shareholders in the said Great Western Railway Com- pany, to sucscribe for the whole of the stock of a certain Railway Company, called the Hamilton and Toronto Rail- way Company. 26. That the Provisional Directors hereinbefore named, and mentioned in the Act incorporating the said Arnhcrst- burgh and St. Thomas Railway Company, assuming to act under the powers conferred upon them by the said Act, appointed the seventh day of August in the year of our Lord one thousand eight hundred and fifty-^^ix, at the hour of twelve o'clock noon, or thereabouts, at the town of Amherstburgh, as the time and place for the first election 23 of Directors of the said Company, to take place under the provisions of the said Act, at which time and place a meet- ing of persons professing to be Shareholders in the said Company, and to meet in pursuance of the said appoint- ment of the said Provisional Directors, was he d in the Town Hall in Amherstburgh aforesaid, when William Duff, James Dunbar, John Ridsdale, John G. Kolfage, Peter Menzies, J. Berthelot, and the hereinbefore mentioned Theodore J. Park, John McLeod, and William Wallace, were elected directors of the said Company. 27. That the said Directors were elected by means of the votes of the said William Wallace, upon the said twenty thousand shares of Stock, the deposit of ten pounds per cent, upon which had been so as aforesaid credited to the said Company, in the books uf the said Bank of Upper Canada, and by means of the votes in respect of one hun- dred and fifty shares, subscribed by and in the names of the said other persons elected as Directors, the deposit upon the greater part of which one hundred and fifty shares had be'>n paid by me to the credit of the said Company, in the Hooks of the said Bank upon the same understanding and agreement, that in so doing, I was acting on behalf of and for the benefit of the said Great Western Railway Company and their Shareholders. 28. That on the same seventh day of August, and at the same time, and at the said town of Amherstburgh, at a tavem called Horseman's Inn, the said Arthur Rankin, George Southwick, George Macbeth and Edwin Larwill, claiming to act as the majority of the said Provisional Directors, held another meeting professed to be held in pursuance of the said appointment made by thes aid Pro- visional Directors, for the election of the first Directors of the said Cotnpany, which meeting was attended by the I said Samuel Zimmerman and his said friends, who had so I as aforesaid, subscribed their names for Stock in the Books of the said Company, on the previous fifth day of July, that before proceeding to such election of Direct?^?, the said lArthur Rankin, George Southwick, George Macbeth and jEdwin Larwill, claiming to be entitled to act as a majority jof the said provisional Directors, did, as I am informed and "elieve by resolution, declare that the said Stock alleged to I I il< 24 have been subscribed for by the said William Wallace, in the said book delivered to the said John G. Kolfage, wats not, and did not form, any part of the subscribed capital of the said Company, and that the same should not be recog- nized as Stock at the election of Directors then about to take place, and they disavowed the said credit opened at ihe said Hank of Upper Canada, in respect thereof. 29. That thereupon, the parties present at such meeting, claiming to be Sliareholdcrs in the said Company, and meeting as such, proceed to elect Arthur Rankin, George Macbeth, the said John McLeod, hereinbefore named, George Southwick, Roswell Benedict, Gilbert McMicking, James Zimmerman, Joseph Augustus Woodruff, and John William Dunklee, which said five last mentioned per sons were the nominees of the said Samuel Zimmeraian, whom upon such election, they declared to be Directors ol the said Amherstburgh and St. Thomas Railway Company. 80. That the said George Southwick, though one of the persons named as a Provisional Director in the said Am- herstburgh and St Tiiomas Railway Company, never had, as I am informed and believe, becon ; M ! I r' f!i 28 Amhertsburgh and St. Thomas Railway Company, and of the Woodstock and Lake Erie Railway Company, con- trolled by me, in pursuance of the arrangement by which I became possessed of the control over such Stock, and for this purpose I was furnished by the Directors of the said Great Western Railway Company with a power of attorney under the seal of the said Company. 43. That I accordingly did proceed to England for the purpose aforesaid. 44. That Alexander McClenaghan, the Plaintiff in thiit suit, during all the time during which the proceedings here- inbefore mentioned were going on, although not a Share- liolder, and not claiming or pretending to be a Shareholder in the said Amhertsburgh and St. Thomas Railway Com- pany, was aware of all of such proceedings, and was con- tinually publishing divers articles 'in a certain newspaper, edited and published by him for the purpose of being, and, which accordingly were directly, forwarded to the Share- boJders of the said Great Western Railway Company in England, wherein he alleged and insisted that the said Stock so as aforesaid alleged to have been subscribed by the said William Wallace, was fraudulently so subscribed, and that his said alleged subscription was fraudulent and void, and that the amount, so alleged to have been sub- scribed by him, formed no part of the Stock of the said Company, and consequently, that the said Board of Direc- tors of which the said John McLeod was President, was not a legal Board, and had in fact no legal existence, and that I had no control, in fact, over, or interest in any part of ■the Stock of the said Company, and that, on the contrary, the Board over which the said Arthur Rankin presided, was the only legal Board, and that the Stock subscribed for by the said Samuel Zimmermcm and his friends, was the only legal Stock upon and by virtue of which the said Company was legally constituted. 45. That the said articles so published by the above Plaintiff were, as I verily believe, published by the direction and at the instance of the said Arthur Rankin, and others acting with him, whose paid agent for that purpose, as I verily believe the said above Plaintiff was, and he received large sums of money therefor. ■'- T-'*-^ ■■■' ^ id he received 29 46. That I found it impossible upon my arrival in Eng- land, to overcome the evil effects the said publications had created, and in consequence I failed in procuring the Share- holders of the said Great Western Railway Company to take (he said Stocks in the said Amhertsbnrgh and St. Thomas Railway Company, and the said Woodstock and Lake Erie Railway Company. 47. Thai the said Samuel Zimmerman likewise, in con- sequence of my claim to the control of the Stock of the said Company adversely to him, failed in procuring capitalists in England to embark in the said undertaking as controlled by him. 48. That by reason of the said Shareholders having repu- diated the acts which I had done solely for their benefit, and by reason that my connections in business, and my partners apprehended that under the circumstances herein- before mentioned, i might in law be personally held res- ponsible for the said amount of Stock, in the event of its appearing that the subscription of the said Wallace was good in law, I was compelled to leave the Mercantile firm of which I was a memb 49. That I never did doubt, nor had 1 any sufficient rea- son to doubt the validity of the said subscription for Stock by the said William Wallace, until I was in England in ihi month of September in the said year of our Lord, one thousand eight hundred and fifty-six, when on the eigh- teenth day of that month, shortly before my return to Can- ada, the said William Wallace, for the first time, informed me that the subscription had been made by him in pencil in the Books of the said Company in the month of May, one thousand eight hundred and fifty-six, before the pass- ing of the said Act, which received the Royal assent on the first day of July, one thousand eight hundred and fifty- six, and that the pencil subscription had been written over with ink after the closing of the Books of the said Com- pany on the fifth day of July, one thousand eight hundred and fifty-six. 50. That notwithstanding these irregularities and doubts as to the said subscription, which were then for the first time communicated to me, and notu'ithstanding that I never anticipated or intended assuming any personal responsir ■i ? --»*■♦ I '! 90 bility in the matter^ 1 and my partners in business became and were apprehensive that the debit and credit accounts which I had obtained to be opened with, the said Bank of Upper Canada in respect of the said Stock, might make me responsible in respect of such Stock. 51. That accordingly I entered into a treaty in England with the said Samuel Z'.mmerman and one George Wythes, who was acting with the said Samuel Zimmerman, lor the transfer to them of all Stock controlled and possessed, or supposed to be possessed by me in the said Amherslburgh and St. Thomas Railway Company, and in the said Wood- stock and Lake Erie Railway Company, and thereupon an agreement to that effect was entered into by and be- tween the said Samuel Zimmerman and George Wythes and me, one indispensible term and condition of which agreement and of the projected transfer consequent thereon, was that I should be relieved from all liability in respect of the said debit account opened against me m the Books of the Bank of Upper Canada, and from all demands of the said Amherstburgh and St. Thomas Railway Company and the Shareholders thereof against me in respect of the said Stock. 52. That I and the said Samuel Zimmerman returned to Canada in the month of October, one thousand eight hundred and fifty-six, for the purpose ol carrying into effect the said agreement. 53. That various difficulties impeded the completion of such agreement, among others of which difficulties were certain claims of certain Municipalities, against the said Woodstock and LaKe Erie Railway Company, whose con- currence in the proposed arrangement was necessary, and whose interests I felt myself bound in honour to protect. 54. That for the protection of my interests, under the circumstances, upon my return from England I applied to the said Amhersburgh and St. Thomas Railway Company, and to the Board thereof, of which the said John McLeod was President, for the passage of a Bye Law to give full effect to the agreement hereinbefore mentioned to have been entered into between me and the said John McLeod, Theodore J. Park, and William Wallace, upon my arranging jlo have the said credit in favour of the said Company opened I :' I 31 at the said Bank of Upper Canada ; and thereupon at a meet- ing of the said Board, of which the said John McLeod was President, held on the tenth day of the said month of Octo- ber, the proceedings following were had in the premises, which proceedings were recorded in the minutes of the said Company, in these words, that is to say : " The President " having explained the circumstances which have led to "the impossibility of making immediate arrangements "under which the work could be at once proceeded with, " suggested that it is the duty of the Board to pass a Bye- " Law to relieve Mr. Isaac Buchanan, as far as in their " power lies, from being injured in his private business "and credit, by his requiring, for some time longer, to " continue his responsibilities connected with the Company, " he having, without any view on his part to personal ad- " vantage, furnished the means to its organization, on the " single understanding that the direction would he handed "over to the capitalists whom he should induce to build "the Road, or to his nominees, Ihe following By-Law, to be "known as By-Law A., was then proposed by John "McLeod, Esquire, President, seconded by Theodore " Park, Esq., and carried unanimously : 'Be it enacted " ' that until Mr. Isaac Buchanan arranges with capitalists "'to undertake the construction of the Railway, under the " ' Charter of the Amherstburgh and St. Thomas Railway " ' Company, and have his nominees for that purpose intro- " ' duced to this Board, there shall no farther calls be " ' made on the shares, nor any contract entered into, nor " ' any cheque drawn on the Bank of Upper Canada, " ' unless, he approves of the same by his signature, this " ' By-Law being declared to be irrevocable without the " ' consent of the said Isaac Buchanan, as embodying the "'former understanding, now made a formal agreement, " ' dated the tenth day of October, in the year of our Lord " 'one thousand eight hundred and fifty-six.' " 55. That the said By-law having in due form of law been passed and approved, the President of the said Com- pany was duly authorized and required to set and affix thereto the seal of the said Company. 56. That in the month of November one thousand 'light hundred and fifty-six, the said Arthur Rankin and the \\:m 32 other persons acting with him, who, other than the said John McLeod, were elected, or who claimed to have becw elected Directors of the said Company, at the said meeting held at Horseman's Inn in the town of Amherstburgh, filed a Bill m this Honourable Court in the name of the Am- herstburgh and St. Thorny Railway Company, as plain- tiffs against the said Williaih Wallace and tne said persons who, other than the said John McLeod, were elected or claimed to have been elected Directors of the said Com- pany at the said meeting, held on the seventh day of August, one thousand eight hundred and fifty-six, at the Town Hall of the said town of Amherstburgh, and againsf me as Defendants to the said Bill, whereby, after stating certain rnetteis in connection with the alleged subscription of the said William Wallace, for and by reason of which It was urged and insisted that the said alleged subscription of five hundred thousand pounds was fraudulent and void, it was prayed to the effect that it might be declared in accordance with the terms of the said Resolutions of the said meeting of the Shareholders in the interest of the said Rankin, by the decree of the said Court of Chancery in the said cause, that the said alleged subscription of the said William Wallace was fraudulent and void, and that the election of Directors held by virtue of and under such alleged Stock, was void and of none effect, and that in effect the said amount of Stock alleged to have been sub- scribed for by the said William Wallace was not part of the subscribed capital of the said Amherstburgh and St. Thomas Railway Company, and that the said William Wallace never had been a Shareholder in the said Com- pany. 57. That having ascertained it to be the fact, that the Directors of the said Company elected at the said meeting, held at the Town Hall in the town of Amherstburgh, con- templated entering into a contract for the construction of the Amherstburgh and St. Thomas Railway, and contem- plated using for that purpose, the credit procured as afore- said by me, to be opened with the said Company in the books of the Bank of Upper Canada, and contemplated further effecting an immediate amalgamation with the said Woodstock and Lake Erie Railway Company, which last S3 I meotioned Company was heavily Involved in liabilities which they were unable to meet, all which designs and intentions of the said Directors of the Amhcrstburgh and St. Thomas Railway Company, were in direct violation ol the terms upon which I embarked in the said undertaking, and upon wnich I obtained the said credit account to be opened with the said Company, in the books cf the said Bank, and with the provisions of the said By-law, passed for my protection, I, in the month of December, one thousand erght hundred and fifty six, filed ray Bill in this honourable Court, against the said Directors and the said Amherst- burgh and St. Thomas Railway Company, whereby I fayed to the effect that the said Ey-law of the said Am- eistburg and St. Thomas Railway Company, passed and adopted on the said tenth day of October, in the year of our Lord one thousand eight hundred and fifty six, might be declared to be a valid and subsisting By-law, and bind- ing upon the said Directors of the said Company, and that the said Directors might be restrained by the order and injunction of this Court, from making calls on the Stock subscribed for by me, and from entering into any contracts or agreements, and from drawing any cheques on the said Bank of Upper Canada, without my assent in writing, and that in case this Court should decide in the suit instituted by the said Arthur Rankin and others, in the name of the said Amherstburgh and St. Thomas Railway Company, for the purpose of having the said subscription for Stock, by the said William Wallace declared to be void, then that I might be paid the said money so procured by me to be entered in the books of the said Bank of Upper Canada, to the credit of the said Company, as the deposit upon the said Stock so subscribed for by the said William Wallace, and fur further relief. 58. That I obtained in the said suit an injunction under the seal of this Honorable Court in accordance with the prayer of ray said Bill, which injunction was duly served upon the defendants to my said Bill, and never lias been set aside or altered. 59. That for the purpose of reconciling the conflicting inter- ests of the several persons claiming to be Shareholders in the said Amherstburgh and St. Thomas llailwny ( om- 5 i Id 1 I ^1 5 94 pany and of putting an end to the litigation in respect thereof and oiterminatrn^ the difficulties arising from there being two bodies claiming to h» the said Company, and from there being two Boards both claiming to be Directors a( the said Company and from the oirrumstance of there being two alleged capital Stocks of the said Company, ne- gotiations were carried on between the said two Boards, and between the said Samuel Zimmerman, and the several persons claiming to be Shareholders in the said tinctly understood ^' and agreed that if the said thirty thousand pounds is not " paid within the thirty days, Mr. Buchanan is to have the " option of being replaced in his present position." 64. That the saia agreement was, on the said twenty- ninth day of August, in the year of our Lord, cme thou- sand eight hundred and fifty-seven, signed by the said Arthur Rankin and by me. 65. That thereupon the said Arthur Rankin proceeded to complete his arrangements with the said James Morton, for the purpose of putting the said James Morton in the place and stead of the said Samuel Zimmerman, and to terminate thereby all the existing difficulties and litigation. 66. That thereupon the said James Morton addressed to me a letter of the date of the ninth of September, one thou- sand eight hundred and fifty-seven, in the wonis and to the effect following, that is to say : — " Dear Sih, — If you will agree to extend the time for carrying out your Railway agreement with Mr. Rankin of the 29th ultimo, as expressed in agreement between him and you of that date, and also in your letter to him of same date, until 9th October, so as to enable me to have the privilege of the presence and advice of the Honourable John A. Macdonald, I will see that the conditions bind- ^i wMnmm 87 ing on Mr. Rankin will be car ied out, should the matter in question meet his, the Attorney General's, approval. " I am Dear Sir, " Yours truly, (Sig-ned) "JAMES MORTON." 67. That on the same niri vh day of September, I addressed and sent to the said James Morton in reply to his said let- ter to me, a letter in ihe words and to the p irport and effect following, that is to say : — " In consideration of your hav- ing agreed to become security for the performance of Mr. Rankin's agreement with me, so expressed in the above fetter, I hereby extend the time for carrying out the agree- ment between him and me referred to, as desired by you." 68. That the said James Morton having consulted upon the matter with the said Honourable John A. Macdonald, he, the said John A. Macdonald, on or about the eighth day of the said month of October, appended to the said agreement a memorandum to the effect following, that is to say : — That be, the said John A. Macdonald, did not think that the said James Morton could safely have any- thing to do with the enterprise, unless subscribed shares should be transferred to parties named by Morton, and unless new Boards of Direction should be legally organ- ized, but, that if this should be done, he thought that Mr. Morton might confirm the agreement and apply himself to the organization of the Amalgamated Companies and the construction of the Road. 69. That thereupon, the said Arthur Rankin continued his negotiations with the said James Morton, and finally, in the latter end of the said month of October, came to a definite arrangement upon the subject with the said James Morton, whereby it was among other things provided, that he, the said Arthur Rankin, should transfer to the said James Morton all the Stock subscribed for by him^ the said Arthur Rankin, in the said Amhertsburgh and St. Thomas Railway Company, and that he should procure, in like maimer, transfers to be executed by the executors of the said Samuel Zimmerman deceased, and by the friends of the said Samuel Zimmerman, who had subscribed lor ^ \'\ si 'ii .■; V.i f,l ; II 38 Stock in the said Company, in the manner hereinbefore mentioned, transfenring to the said James Morton all the Stock by them respectively subscribed for in the said Com- pany, and that in like manner, I should transfer to the said James Morton all the Stock held by me in the said Amhertsburgh and St. Thomas Railway Company, and in the said Woodstock and Lake Erie Railway Company, and that I should jrocure my nominees, who were sub- scribers for Stock in the said Amhertsburgh and St. Thomas Railway Company, in like manner to transfer to the said James Morton the Slock in the said Company subscribed for by them respectively, so as to center in the said James Morton the whole of the respective amounts of Stock sub- scribed for by the said respective parties, represented by the said two several Boards of Directors of the said Am- hertsburgh and St. Thomas Railway Company, with the exception of the Stock held by George McJBeth, who was coH)perating with the said Morton ; and that, thereupon, the said James Morton should transfer to a sufficient num- ber of persons agreed upon, by and between the said Ar- thur Rankin and James Morton, to constitute a new Board sufficient amounts of Stock in the said Amhertsburgh and St. Thomas Railway Company, to qualify them to be Dir- ectors of the said Company, and that the said Company so re-organized, should relieve me from all liability in respect of the said debit account opened against me in the said Bank of Upper Canada, and from all liability in respect of the Stock in the said respective Companies, held or claimed to have been held by me, and that in like manner, the Hoard of the said Woodstock and Lake Erie Railv/ay Company should be remodelled, and that, thereupon, the said Amherstburgh and St. Thomas Railway Company, so re-organized, ufter 1 should be so relieved, as aforesaid, should be amalgamated with the said Woodstock and Lake Erie Railway Company. 70. That in accordance with such arrangement, made and entered into between the said Arthur Rankin, and the said James Morton, he, the said Arthur Rankin and the executors of the said Samuel Zimmerman, and the several persons who had subscribed their namas for shares in the said Amherstburgh and St. Thomas Railway Company, 39 and who had been acting in concert with the said Arthur Rankin and the said Samuel Zimmerman, did assign and transfer to the said James Morton the respective amounts of stock subscribed for by them in the books of the said Amherstburgh and St. Thomas Railway Company, and at a meeting specially convened of the shareholders in the said Company on the twenty-first day of November, one thousand eight hundred and fifty-seven,, for the purpose of completing the arrangement made between the said Arthur Rankin and James Morton, and for re-organizing the said Company, I assigned and transferred ail stock held or claimed to be held by me in the said Amerstburgh and St. Thomas Railway Company to the said James Morton ; and the other Directors of the said Amerstburgh and St. Thomas Railway Company whowere acting with me, also severally and separately resigned their respective seats at the said Board, and assigned and transferred to the said James Mor- ton the stock subscribed for by them in the said Company, and in the place of the said Directors from time to time on the said twenty-first day of November resigning their seats, and transferring their stock, as aforesaid, the said James Morton from time to time, at the request, instance, and nomiuLtion of the said Arthur Rankin, assigned and trans- ferred to the defendants, John Mercer, Charles Baby, George Gott, Heni'y H. Cunningham, John Ferris, John B. Askin, James Cuthbertson, and Paul J. Salter, respectively suffic- ient stock in the said Amherstburgh and St. Thomas Rail- way Company, to qualify them to be elected Directors, and they were, on the same twenty-first day of November, elected accordingly Directors of the said Company, and thereupon, on the same day, the defendant, John Mercer, was elected President of the said Company, and the said respective persons last named were so made shareholders in the said Company, and Directors thereof, for the express purpose of carrying out the said arrangement made between the said Arthur Rankin and James Morton, and of reliev- ing me from all liability in respect of the said stock held or claimed to have been held by me, and from all liability in respect of the said debit account opened against me in the said Bank of Upper Canada, and for the purpose of effect- ng an amalgamation with the said Woodstock and Lake 40 nit i > J-i Erie Railway Company, which eoold not be ef]fer;ted unless upon the basis of my being wholly relieved from sach liability. 71. That on or about the twenty-fourth day of the said month of November, I assigned and transferred in like man- ner and for the like purpose, to the said James Morton ali stock held by me in the said Woodstock and Lake Erie Railway Company, the Board of which last mentioned Company was also remodelled at the instance of and to meet the views of the said Arthur Rankin and James Mor- ton, and I ceased to be a shareholder in the said respective Companies. 7S. That as I am infoimed vd believe the whole course of the proceedings of the said Amherstburgh and St. Thomas Railway Company upon the said twenty-first day of November, had previously been arranged and devised by and between the said Arthur Rankin and James Morton, under the advice of counsel, and the object of the said pro- ceedings was by removal of the conflicting interests and causes for the then pending suits in this Honorable Court, to reoi^nize the said Amherstburgh and St. Thomas Rail- way Company, and to enable it when so reorganized by settlement with me as aforesaid, to proceed with the con- struction of the through line authorized to be constructed by the said Amherstburgh and St. Thomas Railway, and and the said Woodstock and Lake Erie Railway Compa- nies, when those Companies should be amalgamated. 73. That at the time of the said John Mercer as Presi- dent of the said Amherrtburgh and St. Thomas Railway Company signing the cheque, whereby my liability at the said Bank of Upper Canada in respect of the said Stock was wiped out and cancelled, the whole number of actual bona fide Shareholders in the said Amherstbu^h and St. Thomas Railway Company did not exceed, as I verily be- lieve, the number of eleven, and they all concurred and still do concur in the said cheque being given, and approved of the same having been given, and there is not, as I verily belie\nts sltoiild at no one time excee I iive per cent,, nor slioold more than ^ li^t ^onrahlp Crnirt, npnn ♦Vin — ''°li5titjr ftf Rlirb ""V>""';piir^,^ jg a jiecessary preliminary to the; granting any part of the relief by the said plaintiflPs Bill prayed, and the decision of this honourable Court, a s to who were bona fidt SharelK)lderB in the said Amheratburgh aiil^St. Tho mas KaiJway Compa n yi ^'"^ ^"^ a a— t mrh urn hfvnn .f d* Sll ttTeholders in t he_8aia_ Kiagara and Detroit Rivers Rai| wgy CompSg v, IS also essential before the relief prayed for by the «aid plamtiffs Bill could properly be granted, and I submit that for those purposes, the plaintiff's Bill 's not properly framed but that all persons claiming to have been Shareholders in the said Amherstburgh and St. Thomas Railway Company, includ- ing the said James Morton, and the said Arthur Rankin, should under the circumstances lierein appearing, be made, parties defendants to the said plaintiffs Bill, if it should appear that the said plaintiff has any interest, qualifying him to file any Bill, as plaintiff, in respect of the mattera in his said Bill alleged. 108. I submit that if the action of the said Amherstburgh and St. Thomas Railway Company in procuring, as herein appears, the cancellation of my said debit account in the said Bank of Upper Canada, can be now disturbed at all, and I sub- mit that it cannot now be disturbed, the Shareholders in tiie said Niagara and Detroit Rivers Railway Company, which Company was constituted upon the basis of my said debit having been cancelled, are competent to determine all matters connected with the cancellation of my said debit account in the Books of the said Bank of Upper Canada, and to determine what is most for tlie interoHt of tlie Company, in respect of the distribution anil appropriutit)n of tlie Capital stock of the said Company, and tliatthe alleged confusitm and uncertainty of the affairs of the said Company in con8e(iucnce of the contest in the said Bill alleged to exist botwee.i the several bodies thcreri alleged to claim to be Ww said Roard of Directors of the said Company, affords no suffieii'iit liTonnds for divesting the bona 52 fide Shareholders in the said Company of tlieir jurisdiction and right to regulate the appropriation of the Capital stock of the said Company, in such manner as may most conduce to the welfare of the said Company. 104. That I am informed and believe,that in a contract which has been entered into by the said Niagara and Detroit Rivera Eailway Company, with the said James Morton, for the constrtiction of the Railway of the said Company, he the said James Morton hath consented and agreed to accept and retain, in part payment of his said contract, the said sum of five hundred thousand pounds of paid up Stock in the said Company, which I belicv? is the same stock so transferred to ? by me, or stock substituted therefor, and that thereby tht .,aid Con>- pany have provided that they shall have, and will have, the full benefit of the whole of the said sum of five hundred thousand pounds, and that the said Company has obtained due security for the performance of the said contract. ■ 105. That I verily believe one of the objects of the plaintiff \ in filing his said Bill, is, in collusion with the said Arthur Rankin, to procure the control of the said Company for the per- sons claiming to be Directors of the said Company, under the votes given in respect of the said eight millions of dollars, who, as I am informed and believe, have already given or agreed in the event of their succeeding through the medium of the above plaintiff's Bill, and of the said Bill filed in the name of the said Niagara and Detroit Rivers Railway Company, aa plaintiffs in acquiring control of th3 said Company, to give to the said Arthur Rankin a contract for the construction of the Railway of tha said Corapanyj to the great damage, wrong and prejudice of the bona fide shareholders in the said Com^ ptMiy,andI further say that up to the present time, the said plains- tiff hath persisted in treating the said Wallace stock as illegal stock, upon which no sum by way of deposit was ever paid. 106. That imvsmuch as under the circumstances herein ap^ ]){}aring I cannot now be restored to the position which I held, e said Arthur Rankin claims, as I am informed and believe he does claim, an interest in the fltock in the said Company, which is held by tl»e said Morton by virtue of some agreement in that behalf between them, he, the said Arthur Rankin, and the said James Morton are neces- sary parties to this suit, and also that they should be decreed to indemnify me against the said plaintiff's demand, in case this Honourable Court should be of opinion that any decree can properly be made against me in respect of the fifty tliousand pounds in the plaintiff's Bill mentioned. 110. And I submit that under the circumstances herein appearing the said Niagara and Detroit Rivers Railway Com- pany, inasmuch as the said Company has been constituted upon the basis of ray responsibilsty in respect of the said deposit account having been effectually cancelled, should indem- nify me against the Plaintiff's demand, in case this Honour- able Court should be of opinion that any decree can properly be made against me in respect of the said fifty thousand pounds in the Plaintiff's Bill mentioned. Ill And I submit that if it shall appear that the said Plain- tiff is a Shareholeer in the said Niagara and Detroit River Hallway Company, that he as such Shareholder in a Company 54 constituted upon the basis of m^ having been effectually relieved from all such responsibility, is a party who should contribute to indemnify me against all claims in respect of the said fifty thousand pounds, and that for this reason it is not competent for the Plaintiff to file his Bill in this Honour- able Court against me, praying the relief thereby prayed against me. 112. And I further submit and insist that inasmuch as all of the persons claiming to be Stockholders in the Amherst* burgh and St. Thomas Railway Company, nn the twenty-first day of November, one thousand eight hundred and fifty-seven> concurred and acquiesced in the said arrangement, by which the debit account m the said Bank of Upper Canada, was dis* charged by the said cheque, and still do concur therein, the said Plaintiff cannot sue in their behalf as well as upon his own, and that this suit is therefor improperly constituted, and the said Stockholders should be expressly named and made parties to this suit. 113. And,I furtiier submit that inasmuch as such Shareholders claim also to be Shareholders in the Niagara and Detroit Rivers Railway Company, the said Plaintiff cannot represent them in this suit. 114. And I also submit, that if it shall appeav that under any circumstances the said plaintiff Was a Shareholder in the 8aid Amherstburgh and St. Thomas Railway Company, as al* leged in the said Bill, then that the said plaintiff, having con- curred and acquiesced in the arrangement aforesaid, such ac- quiescence is an effectual bar to thit-. suit ; and further, that the said plaintiff having full notice and knowledge of all the said transactions of the said twenty first day of November, eighteen hundred and fifty seven, his delay and laches in filing the said Bill, is a further bar to any relief sought thereby. 115. And I further submit, that none of the Shareholders of the Niagara and Detroit Rivers Railway Company, as such, have any such equity as the said plaintiff alleges in his isaid Bill, and I also claim the benefit of this objection the same as if I had formally demurred to the said Bill. 116. And I further say, that I Jim a largo credi tor of the said Niagara and Detroit Rivers Railway Company, under and by virtue of certain Ronf^a nf t,h» WnnrlHtonk t yirl Tiiikn E rin Railway Company, and that except the municipalities who made advances to the said last ''mentioned Railway Com* pany, I am tiie only creditor to any lart^e amount. 56 lould It of lit is liom> »yed And under all and every, the ciroumatancea aforesaid, I claim to be hence dismissed with my costs in this behalf wrong- fully sucttained. (Signed) ISAAC BUCHANAN. (Signed) JOHN W. GWYNNE, Q. C,