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Les diagrammes suivants illustrent la mAthode. errata I to t a pelure, on A n 32X 1 2 3 1 2 3 4 5 6 .A w ^?^--^;^t;l;^^__^^^. ^Vvuc- /^^t^f'-'i^ r In the Supreme Court of Canada. eN w^m^h mm THE sap^EME ceui^iF m b^jfi^ji ceiiajaBm. BEJFWEEJV ^ THE BANK OF BRITISH NORTH AMERICA, (De/mdunta) AMD Appellania, SAMUEL WALKER, (Plaintif) C-^ii.SE:. Respondent. EDWIN JOHNSON, Victoria, B. C, Appellants' Solicitor. PINHEY k CHRISTIE, Oitawa Agents. VICTORIA, B. C: J. E. McMillan, book and job printer, port street. 1882'. l^' 7 ^ / /fA/U'ffK^ ettants, AND SAMUEL WALKER, (Plaintiff) HespintdeuL 0-A.SB EDWIN JOHNSON, Victohia, B. C, Appellants' Solicitor. PINHEY & CHRISTIE, Ottawa Agents . VICTORIA, B. C: J. E. McMillan, book and job pbintek, fobt street. 1882. ^-.«-«»,-a-e-' 3/ ^ Y ^ / / / / / / / / PL Ol E 1 N DEX. Pleadinqb : • Decluration, ... Pleas, - - - - • Replication, Demurrers, - . - - Joinder in Demurrer, OllDER TO CHANGE VeNUE AND A8 TO EVIDENCE, Evidence for Plaintiff : Edwin Leigh, Charles T. Dupont, Samuel Walker, - Matthew Pinkerton, - - Edward C. Neuf elder, Charles Wilson, George Byrnes, . - - Joseph C. Devlin, William Pollard, - Evidence fob Defendants : Robert. Bums, Douglas R. Wilson, Andrew B. Ritchie, William Pollard, - Evidence Rejected, - - - documentaby evidence, - Judge's Chaboe to the Jury, Vebdict, - - - - - Argument and Judqjcent on Demubbebs, Motion fob Judgment, Judgment of Begbie, C. J., thebeon. Judgment, as entered up, on Demubbebs, Judgment-Order on Verdict, Order staying Proceedings on Terms, - Page. 3 . 8 IS . 19 18 . 18 18 • 14 U • 16 17 . 17 18 - 18 18 ■ 18 19 ■ 20 21 - 21 22 . 46 49 - 49 49 - 49 53 • . 53 M • • 54 199460 IN THE SUPREME COURT OF CANADA. Hetwkkn the hank OK lUUTlSH NOUri, AMKIUCA ( Ihfemlanti,) km' HAMIIEL VVALKEH ( Plain f if ) Afififihififit lieitfunnlent ThiH is an Appeal from tin- Jiulgtuctits of tli*> Siiprinu Court of MiitiHii ('nliiiiii)iit, nvt>r- ruling the tlemurrcrs to etirtiiin counts of tiic di'i'laintioii, iind oidfiiii},' llmt tiu* I'laintiir (rn- Hpoii(lent) recover against the Dt-ft-nilants (appellantH) I'l.OIMI with costs. FIiBADZNGS. 10 I. DECLARATION. The I'.Mh (lay (.f Jul.v A I) IHHO IIICHFIELD) SAMUEL W.VIjKEU !•}• Chahi.ks Emwahd 1'o<»i,k.v liis Attorney hmcs tlio V Bank of liritish North Ain(*rica who have heon summoned to answer the saiil To Wrr : ) Hanniel Walker l)V virtue of a Writ issued on the l/ith (hiy of Juno in the year of Our fjord 1H8() out of tliis Honcuahh' Court. I. For tliut the DefeiKhmts falsely and maliciously and without roa.sonable or probable (lanse on the IHth day of April IH7!) caused and procured a Writ of Atta(rhment under the rnsohent Act of 1875 and Amending .Vets to be issued against the estate and effects of the IMaintitF who was then a Trader Saloon-keeper and Miner residing and irarrying on business in ('ariboo and *20 in manner aforesaid (taused and procured tin; said Writ to be served upon the I'laintitF to be publisluHl and the I'laintitl's real and personal property goods and (ifftu'ts to b(! taken from him and iifter the issue of the said Writ aid witliin tive (hiys from the service thereof the 1'laintifl' duly presented a petition to the Judgti ..e.thorized to net in the jtremistis hereinafter called the ('ouuty Court Judge praying that the said Writ and the attachment nnide thereunder might be set aside and such proceedings were tlienuipon had that afterwards the said ('ounly Court Judge dismissed the said Petition with (!osts and dire(!ted the proceedings in Insolvency to go on That tliereupon the Plaintiff (hily appealed from such decision to tlie Supreme (-ourt and such proceedings were thereupon had that afterwards on the 27th (hiy of February A 1) IHHO the said Supreme Court ordered that the said decision be set aside and condemned the Defen(hints in 3() the costs of appeal and the proceedings on the said Writ were thereupon then ended and deter- mined aiiii by reason of the premises the Plaintiff was put to inconvenience and anxiety and in- curred great pain and distress of body and mind was prevented from transacting his business col- lecting his debts and lost many of his debts by reason of being so deprived as aforesaid for a long time of the opportunity of collecting the same and was injured in his credit and iiis busi- ness became and was destroyed and he incurred great expense in taking and defending the sev- eral legal proceedings hereinbefore mentioned and in re-possessing himself of his estate and in journeying from Cariboo to Victoria and back for the furtherance of his interests in the premi- I I i ( 868 and in attending to the said l»;<;al procoodings and liis {)ro])orty while ont of tlie Plnintiff'H possession became damaged and deteriorated in value and the Plaintiff has been otherwise greatly injured. 2. And the PlaintifT also sues the Defendants for that the Defendants falsely and mnlicioua- ly and without reasonable or probable cause on the eighteenth day of April 1879 caused and procured a Writ of Attachment under the Insolvent Act of 1875 and Amending Acts to be is- sued against the estate and effects of the Plaintiff who was then a Trader Saloon-keeper and Miner residing and carrying on business in Cariboo and in manner aforesaid caused and procur- ed the said Writ to be served upon the Plaintiff to bo published and the Plaintiff's real and per- sonal property estate goods and effects to be tiken from him aijcl after the issue of the said 10 Writ and within five days from the service thereof th(! IM.iintiff duly presented a Petition to tlie Judge authorized to act in the premises hereinafter (tailed tlie Clounty Court Judge praying that the said Writ and the attachment made thereunder niiglit l)e set aside and such proceedings were thereupon had that afterwarils the said County ('ourt Judge dismissed the said Petition with costs and directed the proceedings of Insolvency to go on That thereupon the Plaintiff duly a|)pealed from such decision to tlie Suprem * (!oiirt an I such proceedings were thereupon had that afterwards on the twenty-seventh day of E'ebruary A I) 1880 the said Suj)reme C wiiich Writ was duly served upon the Plaintiff and wh 'leby the Plaintiff's real and personal pro[)erty goonrt Judgo to decline to hear or adjudicate upon the said Petition That afterwards the Plaintiff ol)taint>d a siininions from one of the Judges of the Supremo Court calliiif^ upon the said County Court Judge and upon the Defendants to show cause why the said County ('ourt Judge should not }»roeeed to hear and adjudicate upon the said petition and on the return of tho said Summons to Wit on tho eighth day of Sejjtember A D 1879 the Defendants maliciously and witiiout any reaaoinvblo fvr probable cause opposed the applii-ation and thereupon the said Supreme Court Jutlge on the said eighth day of Sejitember 187!) ordered the said (^ounty ('ourt Judge to proceed to hear and adjudicate upon the said Petition And thereupon tlie l)«»fendants maliciously and without rea- sonable or probable cause a])pealed from such last mentioned order to the Supnuno C'ourt but 10 the said Court on the twenty-fifth day of Septt'mber 1879 confirmed the said last mentioned or- der and dismissed the said Appeal That afterwards in pursuance of the said last mentioned order the said Petition came before tlie said County Court Judge for hearing and the Defend- ants again inaliciouslv and without reasonable or probal)le cause appeared upon the hearing of and opposed the said Petition and c.iused and procured the said County (/ourt Judge on tho Hist day of October 1879 to dismiss tho si\id Petition with coats and to direct the proceedings in Insolvency to go on That tliereupon tlie Plaintift' duly appealed from the said last mention- ed ilecisioii to tli" Supreme Court and upon the hearing of th«^ said Appeal tht; Defendants again maliciously and without reasonable or probable cause appeared antl opposed the said Appeal but the said Supreme Court on the 27tli day of February A D 1880 set aside tho said decision 20 of the said County Court Judge of the 31st day of October 1879 and tho proceedings upon the said Writ were thereupon then ended and determined and by reason of the promises the Plain- tilf was put to inconvenience and anxiety and incurred great pain and distress of body and mind was prevented from transacting liis business collecting his debts and lost many of his d(d)ts by reason of b.'ing so ile|)rived as afi)n Suprenie Court but the said Court on the twen- ty-fifth day of September 1879 confirmed the said List mentioiied orih'r and disniiss»'d the said Appeal That afterwards in |)ursuance of the said last mentioned order the naid Petition ciimo betore the said County Court .Iudt];e for iu^arinj^ and the nefi-ndants again malieiously and with- out reasonalilo or probable cause a])])eared upon tlif licai iut; of and opjioscd the said I'l^titioii and eaused and procured tim said County Court .Jud<^o on the thirty-first day of t)ctober 1879 to dismiss the said Petitio > with costs and to direct the proceedings in Ins )lveiiey to go on That thereupon the Plaintitl" duly appealed from tiie said last mentioned decision to the Sup- reme Court and on the hearing of the said Appeal the Defendants again maliciously and without 10 any reasonable or probable cause appeared and opi)osed the said Appeal but the said Supremt* Court on the twenty-seventh day of February 18H0 set aside the said decision of the said Coun- ty Court Judge of the said 31st day of October 1879 and thereupon the Plaintiff ap)>lied to the said County Court Judge in pursuance of the said Petition to set aside and annul the said Writ and the attachment made thereunder and the Dfifcnulants again maliciously and without any reasonable or probable cause ajjpeared befon; the said ('ounty Court Judge and opposed such application but the said Comity Court Judge after hearing the na'u\ applicition made an order setting aside and annulling the said Writ and Attachment and thereupon the Defendants mali- ciously and without reasonable or probable cause appealed from the said last mentioned order of the 8th day of May 1880 to the Supreme Court and on tiie 'iGth day of May 1880 caused the 20 Appeal to be set down for hearing on the 14th day of Juno 1880 That on the said 14th day of June 1880 it was considered by the Supreme Court that the Defendants had not proceeded with their said Appeal according to the law or the rules of practice and on the application of the Plaintifif the said Supremti Court ordered that the record (if any) be returned to the officer en- titled to the custody thereof and co-idemned the Defendants to pay the Plaintiff the costs by him incurred in the matter of the said Appeal and the proceedings on the said Writ were there- upon then ended and determined and by reason of the premises the Plaintiff was put to incon- venience and anxiety and incurred great pain and distress of body and mind was prevented from transacting his business collecting his debts and lost many of his ilebts by reason of being so df-nrived as aforesaid f r a long time of the opportunity of collecting the same and was injured 30 in uis credit and his business became and was destroyed and he incurred great expense in tak- ing and defending the several legal proceedings hereinbefore mentioned and in re-possessing himself of his estate and in journeying from (Cariboo to Victoria and back for the furtherance of his interests in the premises and in attending to the said legal proceedings and his property while out of the Plaintiff's possession became damaged and deteriorated in value and the Plain- tiff has been otherwise greatly injured. 5. And the .intiff also sues the Defendants for that after the issuing of the Writ of At- tachment as in the third Count mentioned the Defendants maliciously and without any reason- able or probable cause caused advised and procured divers alleged creditors of the Plaintifi to prove their alleged claims against the Plaintiff and caused advised and procured such creditors 40 to support the Writ of Attachment and the sud Writ was determined as in the third Count mentioned and by reason of the premises the said Writ of Attachment remained in force for a longer time th in otherwise it would and the Plaintiff was put to inconvenience and anxiety and incurred great pain and distress of body ansaid for a long time of the opportunity of collecting the same and was injured in his credit and his business became and was destroyed during the time the Plaintiff was so dispossessed and deprived of the said houses mines goods chattels and 30 the same became greatly deteriorated in value and the Plaintiff incurred great expense in re- possessing himself of the said houses mines and books of account goods and chattels and was otherwise much injured. 8. And the Plaintiff also sues the Defendants for that the Defendants with force and arms broke and entered the Plaintiff's houses and mines at Cariboo disposses.sed the Plaintiff' thereof respectively and remained therein and in possession thereof respectively for a long time to wit eighteen calendar months and also seized and took and for the time aforesaid detained and dis- possessed the Plaintiff of all his books of accounts goods chattels and effects consisting princi- l)ally of merchandise and furniture whereby the Plaintiff for and during all that time lost and was deprived of the use of the said houses mines goods chattels and effects and thereby the 40 same became and were greatly damaged lessened in value and spoiled and divers of the Plain- tiff's book debts were lost. And the Plaintiff claims Thirty Thousand Dollars. 8 II. PLEAS. Till) -nth (liiv i)f July A 1) 1880. 1. Tho Defoiuliints bv .Vloxiindor Rofki' Rohortson tlwir Attorney Hiiy tlmt they ttn> not tfuilty. 2. And for a second Pl«'ii the Def«'iidiints us to so mncli of tho first Count as iillcf»t>s tlmt lifter the issiio of tlui siiid Writiiiul witiiin Hvt* days from tin- stuvirc tlu'rcof ilic IMaintilV duly presuntod a petition to the Judge autliorizeil to act in the said |>reinistlea the Defendants as to so much of the second Count as alleges that after the issue of the said Writ and within five days from the service thereof the Plaintifi" duly presented a petition to the Judge authoviztid to act in the saij^premises thereinafter called tho 1 County Court Judge praying that the said Writ and the ,\td^fcient made thereundtir might bo set aside and such proceedings were thereupon had thaMBtorwards the said County Court Judge dismissed the said petition with costs and directed wBrproceedings in Insolvency to go on the Defendants say that they deny the same respectively as alleged. 6. And for a sixth plea the Defendants as to so much of the second (iount as alleged that thereupon the Plaintiff duly appealed from such decision to the Supreme Court and that such proceedings were thereupon had that aftfsrwards on the 27th dny of February A D 1880 the 30 said Supreme Court ordered that the said decision be set aside and a tli(> Ocfciidnnts as to so iiuudi of tho said second Count as alleges that tho proct'cdiiigs on the said Writ of Attaehincnt \\»'ni thereupon then ended and detor- nunod tho Defendants say that the proceedings on the said Writ of Attaehnieut were not thore- upon then ended and determined as alleged. * 10. And for a tenth plea the Defendants as to so much of the thin! (\nint as alleges that !i Writ of Attachment on (he IHtii day of Ajiril A D 1S7'.> was sued out under the Insolvent Acts by the Defendants against tiie estate and efVeets of the IMaintirt' and which Writ was duly served upon tho PlaintitF and whereby tho Plaint'fV's real and personal ijroporty goods and efTects were seized and taken from him the Defendants say that they tleny tho same respectively as 10 alleged. 11. .\nd for an eleventh plea the Defendants as to so much of the third Count as alleges that the Plaintiff' after the issue of tho said Writ and within fivt* days from the service thereof duly presented a petition to the Judge duly authorised in that behalf thereinafter called tho C^ounty Court Judge praying that the said Writ and the Attachment made thereunder might be set aside tho Defendants say that they deny the same respectively as alleged. 12. And for a twelfth plea the Defendants as to so much of the third Count as alleges that the said petition came* on for hearing before tlui said County (^ourt Judge on the fifteenth day of May A D 187'.( and the Defendants m diciously and wi hout reasonable or probable cause ap- peared before tho said County Court Judge and opposed the said petition and caused and jiro- '20 cured the said ('ounty ('ourt Judge to decline to hear or adjudicate upon the said petition the Defendants say that they deny the same respectively as al'eged. \ii. And for a thirteenth plea the Defendants as to so much of tho third Count as alleges that afterwards the Plaintiff obtained a summons from one of the Judges of the Supreme Court calling upon the said County (!ourt Judge and upon the Doiondants to show cause why the said County Court Judge should not proceed to hear and adjudicKto on the said j)etition and on the return of the said summons to wit on the eighth of September 1879 the Defendants maliciously and without any reasonable or probable cause oppo.sed tho said application ami thereupon tho said Supreme Court Judge on the said eighth day of September A D 1879 ordered the said County Court Judge to proceed to hear and adjudicate upon the said petition tho Defendants 30 say that they deny the same respectively as alleged. 14. And for a fourteenth plea the Defendants as to so much of tho third Count s alleges that the Defendants maliciously and without reasonable or probable cause appealed ,iom such Ittst-mentioued order to the Supreme Court but tho said Court on the twenty-fifth day of Sep- tember 1879 confirmed the said last-mentioned order and dismissed the said Appeal the Defendants say that they deny the same respectively as alleged. 15. And for a fifteenth plea the Defendants as to so much of the third Count as alleges that afterwards in pursuance of the last-mentioned order the said petition came before tho said County Court Judge for hearing and the Defendants again maliciously and without reasonable or probable cause appeared upon the hearing of and opposed tho said petition and caused and 40 procured the said County Court Judge on the thirty-first day of October 1879 to dismiss the said petition with costs and to direct the proceedings in Insolvency to go on the Defendants say that they deny the same respectively as alleged. 16. And for a sixteenth plea the Defendants as to so much of the third Count as alleges that thereupon the Plaintiflf duly appealed from the said lust-mentioned decision to the Supreme 10 Court ftnd upon tli(« lic.irinj^ i)f the siiiil Appciil tlit» DffcinliiilH n^niii nnilicioiisly iiinl witlioiit roaHoniihln or probiiM*' «'imih(> up|i(>arii| miil oppdscil ihc saiil Appeal Iml llic said Supifiiic Court on the twciitv-iiiiitli day of rilmiaiv A D ISSO sit asiilr tin- saul .Iffision nf tlii' said County Ct)urt .ludnc of t\w tliirty-tirst day of Ootohor A I) IH7!» tin- D.-foiidants nay tliut Jh»>y dony tho nnmo roHpoctivcly uh alU-f^cd. 17. And for a scvcntccntli plea tlic Di'ftMiduntH as to so nuicli of tlit- tliird Count us alli'm-s thiit till! procfcdin^'s upon the saiil Writ wen* tluMfupon cndod and dcttMniincd lln> |)«'fi'ndantH say tliat tho procccdinf^'s upon tin- said Writ wrn' not tlicn'upon tlirn I'lidcil and drtirinincd as alK-(.;('il. IH. And for an oij^ntoontli plea tin- Defendants as to so niueli of the fourth (-ouiit as al- Id logos that a Writ of Atlaclunent o- the eij^liteenlli (hiy of April 1S7'.» was sued out under tho luHolvont Acts by tho Defendants against tho twtate and etfects of the I'laintiH' and tliut the said Writ was dulv served upon the IMaintilT and that thereby the I'laintitVs real and personal pro- perty goods and etVeets were sei/.ed and taken from him the Defendants say that they ih'iiy tho same rospectivtrly as alleged. l!>. And for a nineteenth |)le.i the Defeii hints as tight ho sot aside the Defendants say that they deny the same respectively as alleged. 20 '20. And for a twentieth plea the Defendants as to so much of the fourth Count as alleges that tlu> said petition came on for hearing before tho said County Court Judge on the fifteenth day of .May A D lS7i) and that the Defendants maliciously and without reasonable or ])robablo cauae appeared beforo tho .said County ('ourt Judge and opposed tho said petition and caused and procured tin* said County Court Judge to det^liiu' to hear or adjudicate upon tlu! saiil poti- ti(«i tho l>efondaiits say that they dtwiy tho same respoetivoly as alleged. 21. .Vnd for a twenty-Hrst plea thc! Diifiuidants as to so much of tln^ fourth Count as allogoH that afterwards tho Plaintiff obtained a summons from one of tin* Judges of tho Supromt* Court calling on the said County Court Judge and upim tho Defon(hints to show cau.so why tho said County C'ourt Judge should not proceed to hoar and adjudicate on tho said petition and on tho ItO return of the; said summons the Defendants maliciously and without any reasonable! or probable cause opposed the ajjplication and thereupon the said Supremo Court Judge on the said eighth day of September A I) 187!) ordered tho said County Court Judge to proceed to hear and adju- dicate upon the said petition the Defendants say that they deny the same respectively as al- leged. 22. And for a twenty-second plea the Defendants as to so much of the fourth Count as al- leg<'s that thertiupon tin; Defendants maliciously and without any reasonabh^ or probable cause appealed from such last-mentioned order to the Supremo ( Jourt but the said (.'ourt on the twenty- fifth day of Septetnber A D 1879 confirmed tho said last-mentioned order and dismissed the said Appeal the Defendants say that they deny the same respectively us alleged. 40 23. And for a twenty-third plea the Defendants as to so much of the fourth Count as alleges that afterwards in pursuance of the said last-mentioned order the said petition carao before tho said County (^ourt Judge for hearing and tho Defendants again maliciously and without reason- able or probable cause appeared upon the bearing of and opposed the said petition and caused and procured the said County Court Judge on the thirty-first day of October A D 1879 to dis- mmmmmmmmmm miss tlio said petition with costs and to direct the proceedings in Insolvency to go on the De- fendants say that they deny the same respectively as alleged. 24. And for a twenty-fourth plea the Defendants as to s(i much of the fourth (,\)unt as al- leges that thereupon the riaintiiV duly aitpcalcd from the s.'iid last-mentioned decision to the Supreme Court and on the hearing of the said Appeal the* Defendants again maliciously and without any reasonable or probable cause apju-ared and opposed the said Ajipeal but the said Supreme Court on the twenty-seventh day of February A D I8S0 set asid(^ the said decision of the said County Court Judge of the said thuty-tirst day of October .\ D IS7!) the Defendants say that they deny the same resj^ectively as alleged. 25. And for a twimty-tifth ulea the Defend.ints as to so much of the fourth Count as alleges 10 that thereupv)n the PlaiutitV ap[)lied to tli" said Coun'v Court Judge in |)ursuance of the said petition to set aside and annul the said \\ lit and tiie Attachment thereundei and the Defend- ants again maliciously and without any reasonable or probable cause appeared before the said Countj Court Judg'.! and oj)posed such application but the said County C )urt Judge after hear- ing the said a[)plication made an order setting asiile and aniuiUing the .said Writ and Attach- ment the Defendants say that they deny -the same respectively as alleged. 26. And for a twenty-sixth jilea the Defendants as to so much of the fourth Count as alleges that thereu]ion the Defeutlants maliciously and without any reasonable or probable cause ap- pealed from the said last-mentioiu'd order of the eighth day of ^lay A I) 18S() to the Supreme ('ourt and on the twenty-sixth day of May A D ISSd cau.sed the .Vppeal to be set down for 20 hearing on the fourteenth day of June A 1) 1.S80 and that on the said fourteenth day of Juno .\ D 1880 it was considered by the said Supreme Court that the Defendants had not proceeded with their said Appeal according to the law or the rules of ])ractice and that on the a])plicati()n of the Plaintiti' the said .Sni)remo Ccnirt ordered that tlu^ record (if any) be returned to the olli- cer entitled to the custody thereof and condemned the Defendants to pay tlie PlaintifF the costs by him incurred in the m.itter of the said Afjpeal the; Defendants .say that they deny the same respectively as alle-ed. 27. And for i twenty-.se veil fh plea the Defendants as to so much of the fourth Count as al- leges that the inoceediugs ou the said Writ werr's estate and of Samuel Walker'H estate I produce the Defendants" ])ro()f against Neufelder's estattv that is the only sworn statement (No. 12.) I also produce the Defendants' proof against Walker's estate (No. '2.'?) also the Writ of Attachment (No. 18.) I telegraphed to J.V. Devlin to take pos.session of Walker's estate. 1 gave the copy telegram to Mr. Divie (IMaintilY's Counsel.) Samuei, Walkeu sworn : I am Plaintill". I keep a trading [)laco and saloon at Harkerville. 1 have been in business there since 18(19. In Decemlpin- 1878 I had dealings with V. Neufelder. I gave him a note for 10 $1250 dated 7th D.'ceniber 1878. [Produced No. :i] I believe he jjut it in the liark at Har- kerville. Mr. Ritchie was managing there. The note fell due on 10th March 1870. Ritchie asked me to pay it about the time it was dnr.. Ho had spoken to me about it before. I took him u]) to Neufeldei's store and showed him that ther(^ was !?1,100 against the note. Ritchio examined the .account added up both sides and deducted one from the other. Before this he knew nothing about the account from me. At that time I and Mouat we'o in charge of Neu- felder's store. Edward ('. Neufelder was at Victoria. One morning Ritchie showed me a tele- gram from Mr. Dupont. He came in with Devlin and wanted to take posstission of Neufelder's .store. I refused to give up possession u[)on that document hut ottered to let him stay to look on and see that nothing was removed and he did stay. I think about the time the note wasdue20 I told him to tirt^ away ami get it. I was sei'ved with a Wi'it of .\ttachment on 'h'd May 1870. (Jeorge Byrnes took ])ossession on that day of all my goods in the store. I considennl tiie value of the goods was .'i^2,()(l(). He also took i)ossession of my l)ooks notes the building and tv/ery- thing. I stopped in my bedroom in one wing until the water droves me out. I presented a petition to .ludge Ball on 7th May [Copy j)roduced No. 20.] It came on for hearing on the l.lth May. The County Court .Judges did not gnint mv jjetition. H(^ would not lu^ar the case bo- cause the amount vv;is over ^~M). Bevlin .said he apjieired for the Bank. [Objciction by De- fendants' counsel — no authority.] ^owed Pinkerton a little over $100. ! went and borrowed $200 more telling him f would giv( him security. I gave iiim a mortgage with a limit of $1,.')0(I to cover further advances. The rest of the money was to l)e advanced as I icciuiriMl it. [Copy pi'o-IJO duced No. In,] After the mortgage was registered he i)aut mt; $100 more. That was a few u 'M. t O-tober further proceedings took i)lace l)efore Judge Ball. Mr. Johnson appeared for the Bank to sustain the Writ. They sustained the Writ on the Neufelder note the Beedy note and the Enterprise not»!S. Burns' proof on thv Beedy note I believe was read. I objected to it being $525. I gave Beedy a note for $525. I did not ow(! him that sum. The note fell due and was renewed. 1 then owed him $409. 1 was getting goods frouj him. The note was in the Raidi. I paid some of it $2.5v}.25 before the Insolvency procecsdings. 1 saw Beedy about it and said money was scarce. Beedy said he had given goods to the Bank amounting to $2,200 >s security for what he owed 40 the Bank, lieedy died on 22nd January 188i». [Note produced No 4.] Be! ween me and Beedy there was only $11(5 due on the note by me at the time of the application to Captain Ball in October 1870. Judge ]5all onlered th > proceedings to go on and 1 appealed. Mr. McCreight and Mr. Robert.son appeared on behalf of the Bank on tiu! appt^al. 1 v.as present. After that there was another hearing before the County Court Judge on the 8t]i May 188(1 when the Insol- vency proceedings were .innulled and the Bank again appealed. I have lost my time from the ;}rd May 1879 to 17th June 1S>,0 when the goods were returned to me. My business was worth about 13,000 a year. When the good.s wore returned they were damaged and some were not returned. 15 I made a note of what was dainagpil ami lost. It aiiu)uiit«'il to .*48r). Tlic Imilding was pullod to pieces in raising it. There was a fr.'slu-t. The bnilding was h-ft till the tailings erusheil it. The floors were ripj)e(l up and one wing was sawed off and left. I estimate the damage to the building at 17.50. It would eost !?1, ()()() to restore it. I have heon at great expense coming ilown here — have been absent Mixen inontlis. My expenses were $1(H) a trip eaeh way. I was Jiere about (\h months. 1 have ineurred expenses in upsetting the proceedings. My board in Victeria cost Die about ^7 a wee}:. I left my boy up there and a man to take care of him. 1 have incuired liabilities to about !?],()()() for litigation. I lost on my book accounts. Some have left and others are not now able to pay. 1 t>stimatr that at about ^1,000 too. Cross-examined — I have been in busint^ss since 18(17. I kept my own books but not all th(>lO time. I don't understand book-keeping very well. I don't know what capital I had when I commenced business possibly I had none. For some }ears before 1H7!) the times were not as good as they had been. The time for collecting debts is from the middle of .fuly to .January. I have brought my books but kept no account of profit and loss. My estimate of !?.'{, 000 a year is made up from my day-book which shows my ,0()0 and the cash .sah()lt iil<>i\>,' witli the inort- gago. 1 took no inoiiioriiiiduiii of tlic it;,'rt't'ii>cMt lictwcfii iiic iiiid Mattlicw I'lnkciton. I |in'- parod the niortga^o from memory. I kept my own liooks. IsaaoH kept tliem part of the time. Ho is not here. When I was made insolvent my good hook del)ts were ahout $r),(l(MI. Mr PoUard wrote to my (h'htors Init they would not pay him. I liave siin-e colh'iti-d ronsideriihh>. Th((n* was ^"270 and interest due on the Heedy note. It fell due on \Uv 7th l-'elirunry ll^7'.» and was dishonored. My note to tho Enterprise Co. was also dishonored. The Neufeldtr note was not met. The notes were in tlm Hunk. I havf often given notes without knowing whether 1 was liable. I accepted the Enteri>rise not»'s under misrepresentation. l{iteliie got nw to sign a letter 1 did not understand. On '2'2nd March lH7!t I asked for time. I was afraid of a law- 10 suit. I don't nmiemher when I lirst disputed the Enterprise C'o.'s claim — it was when they sued mo. I don't remember telling Kitehie I would pay tln^ Neiifelder note. I never oll'ered to give him st^curity. He proposed Joiinson and Isaacs as s.'curity. It is so long ago 1 cannot remember. I have made no settlement with the Enterprise Co. but was told they wouM relea.se me. Charles Wilson drew my petition. I n^ad it. I claimeil damages because tlie Hank had done wrong. I never offered to the Hank anything personally to settle. It was about 1st March 1H7!) that I had the conversation with Uitchie. I have an inventory of the goods in my store. Cannot say how much 1 have collected. I think tlicfre was $400 collected. Re-examined — In 1871 I owed about !?'2,()0(). Lindsay was assignee. He had about $4,000 assets. I have since paid §1,000 of those debts. I had an agreement in writing with tho En- '20 terjirise Co. [produced No. 1.] Ihey sued nic but have not got judgment. Ilitchie told nu) at one time that Noufelder had discounteil the not*;. He* was continually bothering me about it and iinally I told him to go and do his best. In 1878 I had about $5,000 from the Enterprise ('o. It all went into my business (U* as much as I thought convenient. Per Cur. -In July and the Fall the rush of water brings down a large rpiantity of tailings from the mines. Matthew PiNKEUTON, sworn: I have known Samuel Walker about nine years and have had dealings with him about seven years. In the Spring of 187!) about 1st March there was $100 odd due from him for cash. He proposed to get more money and give security on his store. He said he wanteil part to pay TO some debts and the other to get goods from below. .Vbout the time of the agn^ement I lent him $200. Afterwards I lent him $!()(». Ho had not much time to get more money before 1 got a telegram from Uitchie from Lytton telling me not to meddle with the Walker estate as a Writ of Attachment had issued. That was some time in April. Walker never asked mo for any more money. 1 got the bill of sale and got it recordeil the day the Bank closed — the last of March. I recollect the affidavit was made by Isaacs on the same day. This was some time before I got the telegram. I hardly know how to describe John Pinkerton's debt. Ho owed Walker $300 odd. Walker made some remark to let it stand and a day or two afterwards we got the t(degram. I never said there was $1,500 due on tho mortgage. There was no fraud to ray knowledge. 40 Cross-examined. — The bill of siile did not include all Walker's property. It left out the book debts. He had two or three horses. It was some few days after the mortgage was re- corded that I told Walker to charge John's account to me . Walker never said he did charge it. I think I swore that Walker's evidence was correct^ I squared up with Walker a few months before the mortgage. The first money I afterwards paid hira was the $200 and after that $100 outside his house. That is all I gave hira. After that I told him to charge John's account to me. That must have been between 31st March and the middle of April. Ke owed me $400 '-^' ^/^ 17 wlieu wt) stiimrod olT. llt> iu'vit was out tpf iiiv dtlit ItctwiMMi tlir Mnl .unl i»'itli ..f Nov, ImTS. EdWAIIDC. NKl'lFXltKU, HWOlU: I wnH a piirtiiiT in the rirni of F. Ncufrlilir A- Co. I ariiv.'.l at ('iiril)oo iiltont nt-crmlior 1878. Aftcnvmd.H IJitcliic l)roii>^lit llir note to iin> for .•lulorsciiirnt. I .-iit sure wlmtiier I told Ritchie of it. When I left Markerville I left Mouat ami Walker in charKo. A Writ of Atta( h- nioiit was issued ahout 17th March IH7!» a} two securities returned. The Walker m)te is not among them. Their aniondod claim is now in my hands [Produced No. 17. ] 1 mado a composition with my cn-di- tors. It is dated Kith April 1S7!I. It was confirmed on that day. The notes produced ar«' the composition not(!s(No. Ki.) They have been paid I got possession of Walker's note from the manager of the Hank on the K'tth May 1S7'.), Mr. ititcdiie had made entries in my b(H)ks with- out luy authority. The Enterprise Co. had claims against my late father. Cross-examined. — My father I think deposited Walker's note as collateral with other col- lateral securities. Nothing that T know was said at tlu^ time alxnit its being of no value. The '20 deed of composition was confirmed on the 10 .\.pril 1871). I'or some time after that date there was a dispute. The assignee was asked to viz. on Friday the 'J'iud day of August 1879 at 12 o'clock noon and on that day and hour the examination was held by me at the residence of the witness J. C. Beedy. The persons present at such exajiiination were Charles Wilson Samuel Walker and Mrs. Beedy wife of tlie witness. 10 JosUH Crosby Beedy's evidence taken under commission as stated by tlie last preceding witness was then tendered by the PlaintitT's coun.sel. (>l)jecfed liy Defendants' counsel: the County Court Judge had no power to issue such a commission; the examination was conducted ex parte; the Defendants had no opportunity of cross-examining; leading questions were put. Evidence rejected by the Court. Joseph C. Devlin (evidence taken under a commission and read): I took possession of Mr. Samuel Walker's premises in Barkerville on or about 12th May 1879 under authority from Mr. C. T. Dupont of Victoria the Official Assignee. I received possession of the jiremises from Mr. Byrnes and on the 17th June 1880 or tluTcabonts delivered up possession to Mr. Charles Wilson agent for Mr. Walker. The estate was not in my posses- 20 sion the whole of that time between 12tli May 1879 and I7th June 1880 as I notified Mr. Du- pont to appoint another deputy as I did not wish to act. While the estate was in my posses- sion I done (did) all I c(mld for th(^ preservation of the property. I believe Mr. Wilson's esti- mation of the loss in value of goods and merchandise to be correct viz. $225. Wiixi.^M PoLLAUT) svVorn; I am a barris'er and ecri tary of the Enter})rise Co. I had a conversation with the repre- sentatives of the Bank of liritisli North America. It was not in con.secpience of anything they told nie that a claim was put in against Walker but because he was an insolvent. I made two affidavits — 1 don't know the dates. I proved the company's debt in the ordinary way. The direct and indirect liabilities were put in. I cannot now recollect but the indirect liabilities 30 were abou $40,01)0 the amount for which Walker was liable to V)o assessed. There was eighty cents hare outstanding and Jiot paid. 1 was not at that time aware that Walker disputed the claim. Subsequently the Co. sued him and he defended on the ground that he ^as not liable under tliJ agreement. The ^o^discontinued the ad.'on and jiaid the costs. [iCieJ^ei5dat(iid/ under tlu agreement. The Co_disc 4th October 1879 addressed tciOtobe bertson /%r* *liere produced.] I wrotoSliSt^let- ( ^ y^ # ter at the request of Mr. Kobertson after having spokv'n to him about it. Cross-examined.— The actions against Walker wore discontinued because the Co. did not think him worth sueing. They afterwards proved in insolvency. The Co. never informed W alker they w«>re ready to exchange releases wiiu fiire" . EVIDENCE FOR THE DEFENCE. 40 Rohert Burns sworn: I am manager of the Bank of British North America at Victoria. I was so on 4th March 1879. I did not then know Samuel Walker the Plaintiff. I think instructions were given to the Bank's Solicitors on 14th April 1879 against Walker. The instructions were given upon ^g*fW ^^li''Piflff^'S)l'?^l!BIB^W'*^ • <1hv oft Tha : ■■ •:■ ., .;■ time ' ^ Defe of A] Ame chie durii Staul r, 19 tho advice of the Bank's Solicitors. T rocoivod a tologram from ^[l■. Hitcliic. I artt'd oii tliin. Ritchie was then agent of the liank at !5arlu*rville. I leccivcd the trligrani on tlic Sth April 1879. It was to tho eliVet that Walkor had transferred his building and all chattels therein to Pinkerton. I took Mr. Johnson's advice and acted npon it. 1 instrncted that proceedings should be taken for tluMssue of a Writ of Attachment against Walker. This was about 1 Kli April 1879. 1 recollect my atlidivit. It was prej»ared by the Hank's Solicitors. 1 ncollecl the meeting of Neufelder's creditors on KUh April but cannot say if it was l)ef(Me or after mak- ing my affidavit. I objected to the pro])()sed endorser of the composition notes. I signed the deed and acce])ted the comj)osition and surrendered Walker's note- about lOth May. My reason was that from what I hoard from Ritchie as to tho value of Walker's estate I then thought that 10 estate was only a tritle and that it was better to surremler the note and rank on Neufelder's es- tate instead taking fifty cents in tin- dollar. At the time I gave instructions for the Writ of Attachment I held the Beedy note. It was over due and partly unpaid. This was part sc'curi- ty fct Beedy's overdraft and is still partly unpaid. The Bank still hold it as a security against Beedy 's overdraft. [Note produced No. l.] There is about §282 due by Walker to the Bank on it. I had no direct authority from Beedy to sue so as to charge him with costs. 1 applied to him '"^r permission simply to prevent a question of cos s afterwards. From the issue of tho Writ of Attachment the }?ank have never initiated any proceedings against Walk'nt any other telegram. I don't know if 1 valued the Walker note when I proved our claim a.'j;.un.-'i Neufeldei's estate. It is valued but not spccificiilly. The amemhid claim as of 16th ■'. ;ri! 18/9 was made out after tli;it date. I could not at that date say the note was value- less as I ti;' .1 thought it valuable. On lOth April I valued Walker's note. On Kith May as G* ] )th X} v\ I put no value on it. I gave it up because Walker's estate was being frittered away. X ;'nve ;t vip to E. ('. Neufelder. I knew Walker was taking steps to set aside the in- solvencN. «" ,. Enterprise Co. were in onr debt in October 1879 in $9,01)0 or $10,000 and wo 30 had the power to wind them uj). I did not reidise the bill of sale except what Beedy gave me. I don't know if any cancellation took place. I did not keep the little debt ($314) on foot to keep a claim against Walker. I a|)plied moneys .sent by Beedy to other large debts due by him to the Bank. I sup|)ose w(f appealed from Mr. Justice Gray's order. I think we did so. I had no discussion as to obtaining attid.ivits from the Enterprise Co. On referring to my afTi- davit of 9th October 1879 I don't know why T did not state that some of the note had been paid off It was a clerical error. •■ - -{amined. — I first handed in the amended claim against Neufelder's estate on 10th May. That w. s when it took effect. Mr. Ritchie took the bill of sale from Beedy. Douglas R. Wilson (evidence taken under a commission and read) : 40 I know the Plaintiff. I have known him since aV)out tho end of the year 1878. At that time ho was a trader ;md kejjt a general store at Barkerville British Columbia. I know the Defendants. I resided at Barkerville from about the middle of October 1878 to the beginning of April 1879. I was during that period a clerk in the agency of the Bank of tho British North America. All the banking business at the said agency was conducted by Mr. Andrew B. Rit- chie and myself and I had a personal knowledge of all business transactions at the said agency during the time aforesaid when I was clerk there. "When there I knew Josiah C. Beedy of Stanley British Columbia. He had business transactions with the Defendants keeping his ao Imnk account at the agcMioy iiforosaid ami selling gold-dust to the said H:mk and from timt> to time purchasing drafts tlieroat. During tlio timo T was cli rl»iu tlm said hanking otVu-o agi-ncy the said J. C. Beody did from time to time overdraw his account at the said Hank halving a considerable balance often duo from him to the Hank. 1 saw the promissory note now pro- duced and shown to me marked A [No. 4] at tlie banking otlice aforesaid in tiie month of l)e- comlier 1878 and from a number "P. (i,"on the said note I shonhl judge and I believe that 1 first saw it Ciirly in that month. I do not rennunber exactly wliether I ever saw the said note in the possession of the said J ('. Beody. I am not certain wlietiier he cami^ to the said Bank and delivered it per.sonally or whether he sent it to the s.ud l{ank by letter. I saw the saiil note in the possession of the Defe. hints or in otiier words the Bank of Briti.sh North America in the 10 month of December 187S n.\d Aw said Bank was the liolder and owner of the said note up to the time I left BarkerviHe in April lS7i*. At tht^ time the Bank received the said note there was a considerable sum of money due from the said Beedy to tlit^ Bank he having overdrawn his current account. The s ud note was given by him to the Bank as collateral security for payment of such overdraft or indebtedness. I am positive that said noti! was given to the Bank for that i)urpose alone and for no other. Andrew B. Kircnin sworn: I went up to Cariljoo in Sejitember 1877 and was manager of the Bank agency there. I know the Plaintiff'. There w(n-e two drafts of the Enterprise* t'o. drawn on Mr. Walker in Jan- uary 1870. One was cashed by the Bank inVietoria the otluM' sent for collection on account of '20 the Co. The drafts were payable on (hnnand. Walker was at Stanley when they arri* od. When I saw him we had some convers ition and at his reipn'st the drafts wen; hehl ov(M' till the lilth February wIkmi he proposed to give tiirei; nott^s payable at dift'erent tinu's in lieu of the drafts. I then wrote the letter produced [No. ] and read it to him. He said that was exactly what he wanted and he signed the letter and the three notes. When the lirst note fell due — 15 March — he would not pay it and said the Com])any had not accejjted his letbsr. I knew the firm of F. Meufelder iV Co. It consisted of V. Neufelder and E. C. Neufelder. They had an account at the Bank. I gave them an overdrr.ft ag.iinst collateral securities. About 9th December 1878 F. Neufelder was going ilown to Victoria. He gave me Walker's note for IJl.'ioO as col- lateral security for his firm's overdraft. He omitted to endorse it and subscscjuently Mr. E. C 30 Neufel'h'r endorsed it for the firm. 1 received it as a hima Julc note for face; value. The agency was to close on 80th March. Some time before that I had a conversation with E. C. Noufehhu- in Walker's presence. I asked Neufelder if he could pay up his overdraft. He said he could not. His overdraft was then about $4,U(/0 or 15,000. I furnishcid F. Neufelder k Co. with lists of their securities from time to time and always included Walker's note. About 1st March 1870 T had a conversation with Walk(^r. He said I had a note of his for SI, 250 but that he did not ow(> so much. This was in Neufelder's office. He showcvl me an entry in Neufelder's books crediting him with $500. I said I had nothing to do with that. Ho said ho would pay the note wheji due or at least before the agency closed. He offered George Isaacs and A. Johnson as security. I objected to Johnson. Afterwards I suggested Mason and others and 40 he said he would look round. A few days afterwards he said ho could not find security. I asked for security. He said he would not give me security and if I went after him he luld make me suffer as he had done with others. I searched from time to time to see if there were any transfer^ and at the beginning of April found that he had made a bill of sale to Pinkerton. I then telegraphed to the manager at Victoria. I had another note of Walker's held as collat- eral security for J. C. Beedy's overdraft. Walker promised to pay it and did pay two instal- ments. In a conversation on the 18th April he said his only chance was to get the money from Matthew Pinkerton. I left Barkerville on 19th April. I had arrangements with Beedy for an overdraft. About 20th Marcli I took a bill of sale from him as additional collateral security. 'H 31 . It wfts not worth anything. He was in poaspssion am' soiling the goods. 1 kiiow Walker all the time. Ho did a small bnsiness. Ho dealt with Boody and Noufolder and paitl pretty well. I considered him honest. I think •*.■{,()(>(> a year aitogotln^r above his ineomo. I can say he was insolvent on *J'2nd March l^i7!(. His hook debts wore not realisable. There was tlie Hoody note the Nenfelder note the Enterprise note and a note to Houseman overdue and unpaid. Neufeldei it Co.'s overdraft was never less than Walker's note. CrosH-exaniined.— [Copy bill of sale. Beedy to Hitchie, produced No. 11.] 1 took the bill of sale for .*'2,000 but could not realise half that sum. Boedy's overdraft at Barkei ville at that time was $'2,243. I recioived the bill of sale as a temporary security. I was a|)pointed Heputy Official Assignee under Neufelder's insolvency. I had instructions from ('. T. Dupont the Oth- 10 cial Assignee to send down the ai;counts. 1 made the entry in Neufelder's book but ruled it out at Walkers suggestion and initialed it myself. Ho said it was not the thing. When I left Barkerville I left Ross some bills to collect. 1 don't know if he had a proxy from the Bank. I don't know anything about the creditors' lueeting. The endorsement on the Beedy note is my hand-writing. I wrote it after lieedy signed it. I afterwards endorsed it to the Hudson's Bay Co. for collection on account of the Bank. I had authority to take it back. On 23rd June I telegraphed for it to Beedy. Re-examined. — It is customary to endorse notes for collection. Banks do. it. The Bank could sue on that note. I never took possession under the bill of sale. Botidy gave it to mo as a temporary security. On 23rd December Beedy had about $1,800 overdrawn. The over- 20 draft hivs not been wiped off. There is still ^13 due on it. , William Pollauu sworn : I am Secretary of the Enterprise Co. The Company sued Wallter in .lune 1H79. In the first instance we got judgment in those suits by default. Walker got leave to defend about a week after we signed judgment. I think about the end of June. We discontinued the actions in January following in consequence of receiving notice to proceed. I produce the books of the Company. On the 1st October 1879 the Directors passed a resolution directing the Secre- tary to take proceedings in insolvency against Walker if the proceedings at the suit of the Bank should fall through. Cross-examined. — The affidavit made by me in re Walker was brought to me and I swore 30 it. I did not draAv it. I did not wish to give my services for nothing. We were not parties to the record. I asked Mr. Robertson to draw it up himself and said if it was correct I would swear it. I told him I would do nothing about it without referring it to the Directors. My first letter to the Bank's Solicitors was written at their solicitation. I have spoken to Mr. Burns about the case but don't recollect what those conversations were. Re-examined. — James Burns was made Trade Assignee and employed me to collect Wal- ker's book debts. I received seven or eight replies. I produce the list of book debts. It has about $(),000 on it. I only got about %'i. Per Cur. — I cannot say whether it was before or after^st October 1879 that I saw Mr. Robertson about Walker's business. 40 Documentary evidence on both sides was then put in. Certified copies under the hand and seal of the Registrar of the County Court at Richfield of the Judge's notes and orders of the 31st October 7th November and 6th December 1879 in the matter of Samuel Walker an Insolvent were tandered on behalf of the Defendants but rejected by the Court. ^mm m 33 A bill of complaint filed Iflth Juuo 187!) and order dated 2Hth September lvS79 in the Supreme Court of British Columbia between Samuel Walker Plaintiflf and Charles T. Oupont and the Bank of British North America Defendants were also tendered on behalf of the Defen- dants but rejected by the Court as irrelevant. The cancellation of the bill of sale from J. C. Beedy to the Defendants was put in. DOCUMENTARY EVIDENCE. No. 1. — A(frpemei)f hetween Phtintlff ami fhe Enterprise Co, Agreement made this twenty-fourth day of Auf^ust A D 1878 between Samuel Walker of Barkerville Free Miner of the one part and the Enterprise Gold and Silver Mining Company Limited of the other part Witnessetli that for the considtn-ation hereinafter set forth the said 10 Samuel Walker agrees to sell transfer and convey free from incumbrances unto the said Company All that quartz mine or location situate on Island Mountain in the District of Cariboo known as the Walker Company or location. In consideration whereof the said Company shall pay the said Samuel Walker the sum of five thousand dollars ($5,000) in cash on the execution of the said transfer and shall also deliver to the said Samuel Walker certificates of such a inimber of shares of the Company as shall be equal to one fifth of the whole number of shares in the Com- pany. To effectuate such purpose the Company shall increase their capital stock. The shares so to be delivered to the said Samuel Walker shall not be subject to assess- ments in respect of the expenses incurred in procuring a mill and in its simple erection but otherwise they shall be on the same footing with other issued shares. This agreement is sub- 20 ject to ratification of the Company in general meeting. If it should not be duly ratified within one month from the date hereof then it shall be null and void and Samuel Walker shall be en- titled to be paid by the Company the costs of the labor expended in developing the location from the date of the proposal to purchase (say the 20th day of July 1878) up to the date hereof amounting approximately to % and also the costs of the labor that may with the consent of the agent of the Company in Barkerville be expended in further development within one month from the date hereof. It is lastly agreed and expressly declared that Mr. Felix Nenfel- der executes this agreement as to each and every part of it on behalf of and subject to the rati- fication of the Company and that he shall not in any event be iiidividuully or personally re- sponsible. As witness the hands and seals of the said Samuel Walker and Felix Neufolder 30 hereto set and aflSxed the day and year first above written. Signed sealed and delivered by j Samuel Walker and Felix Neufelder in the presence of G. C. Tunstall. I SAMUEL WALKER, F. NEUFELDER, Chairman Enterprise G. k S. M. Co. Limited. No. 2. — Letter from F. Neufelder to Defendants' Manager. Bakkebville, B. C, October 12th, 1878. My dear Mr. Cran, — Mr. Ritchie tells me that my overdraft here is not agreeable to you below. Allow me to tell you that I prefer being a little short here for a while than below, as I do not owe anyone but in your Bank and I deposit all my receipts and notes with you. 40 The latter amount is considerable more than my overdraft and are all good as Mr. Ritchie will tell you, also interest bearing. I also have remitted to my house considerable amount of H U vc et be I II A ( wai for fill; ""« in I "Ci Noti hum (Itiin the 81 per n J 23 vonchors ftgiiinst tho Eiitcrprisf. Evcrvtiiing will conn* riglit hIioiIIv luTf. Mr. I{ii)tti is liii enerf^t'tic suporiiitomlont. You kimw I Imd a liig striit,'^,'li' ami outlays to inako wliicli will s articles of value wliidi I ronliso by (legvcM-s. I therefore wisii you would not sav aMytliiug against my overdraft here. r prefer getting aceomodtition from your Bank hero, than to get money outside. With best regards, I remain yours truly, K. Nkitklih-.u. No. 3. — Promlssari/ Nntr, Plaintiff' to F. Nrn/'thlrr ,[■ ('i>., with /'/-o/csV. l,250.f)fi 38.75 Haukkuvim.i:, !?. I' , Deeendter 7th, 1H7S. lU 1.2HU.41 Ninety days after date T promise to ])ay to the order of F. Neufelder iV ('o., twelve hundred and fifty IKUKKI dollars at one jier cent, per month. Value rec(>ived. (Signed) S.\MUKI- Wai.kku. Endorsed — Pay Hank of British North America or onler. • F. Neufeldeu »t Co. Protest and notice thereof | waived. F. N. ct Co. ) On this day the fifth day of April in the year 1H7'.) at tiu^ re(pie.st of A. B. Uitchi(\ .Vgent'iO for the Bank of British North America, Barkerville, I, George Bynnfs, I'ublic Notary by law- ful authority admitted and sworn dwelling in Barkerville, British Columbia, exhibited the origin d promissory note whereof is a eopy on the preceding written to Samuel Walker, Travler, in Barkerville aforesaid, the maker of same and denninded payment thereof. He answered, " (^mnot satisfy it at present and have various reasons for not paying it." Whereof 1, the said Notary, at the request aforesaid did and do by these jjresents against the said nniker for twelve hundred and fifty GG-lOO dollars princi|)al and tliirty-eigiit 7.')-l(K) dollars interest and all costs damages and interest suffered and tf) be suffered by want of payment of said note and interest. Thus protestt'd in the presence of Uobert Heal, Miner, of Barkerville aforesaid as W^itness. Which I attest. 30 [I- «•] (Signed) (iEOIUi •.NES, Notary Public, 11 No. 4. — PromiHsonj Note — Plaintiff" to J. C. lieedy, Bai!KEUVili.e, December 7th, 1878. 530 Sixty days after date I promise to pay to the order of J. C. Beedy the sum of five hundred and twenty-five dollars for value received at the rate of one per cent. ])er month interest. (Signed) Samuel Walker. Endorsed— 40 Feb. 6, 1879— By Cash 1230 (Signed) A. B. R. March 18, " — Bv Cash $ 23 77 (Signed) A. B. R. Pay Bank of B. N. America or order. (Signed) J. C. Beedy. Pay Hudson's Bay Co. or order for collection account B.B.N. A. (Signed) A^fDBEW B. Ritchie, Agent. j rtT ^.^^■.^■.'^ . w -g«? j ' " • • - " ' ."■in.'.ww'iftaiwi^w i wtii M No. 5. Lettvr, I'laiiitlff' fi> /)t''ni(f(tiit»' Ai/ciif. IUukhivk.m-, ITith Fcl>i.miv. 1H7'.». The Af^ciit, Hank of Hiitish Noifli ,\iiH«ricii, hinkt'rvill»«. Dkau Hill, - I{t<>,'iinliiin tliesi> two dnifts of tlio EntfipiisK (ioM mul Silver Mining; Co. nicli ( £ ^'''^ for !?itm.2(> imd ('xcliiiiij,'!' voii lioM ii;,'aiiiHt iiic, I imi •.villiii^ to ^,'ivn you my iiot«>s oiic-thinl piiyaMo one luoiitli from moiitiis. The Enterprise IV. are th>e mr lietwecn .'<70(i and ^H(M( and if tln-re aie tf> lie further as- HesHinentH tliis !?70() ^HIM) must go against these asses^UK'nts. If th(! KnterpriHo Co. are agreeable to accept these terms which are the liest I can at pre 10 H«nt ofllor, F bind myself to abide by this letter. I am, dear Sirs, yours truly, Hami;ki, WAi.Ki'.n. 1*. S.- I herewith hand you my notes to the Knterpiise (lold and Sdver Mining Co, as on other su\o and will thank you to be good enough to hand them to the Co. if the}' agree to ao ••ept my offer. S.VMUKI. WaLKEU. No. (5. — Tjfitter- F. Nrii/rli/rr (!'• (D. in Dr/'i'iiihinis' AijeiU, nAiiKKiivii.LK, 2Hth February, IHTO. The .Vgent, Hank of Hritish North .\merica, Harkerville. ' '20 Dkau Siu, — In our absence from narkerville we hereby give you full power to renew any notes you may hold in security of our overdraft made payable in Victoria or Harkorvillo as you deem best and we hereby waive protest on all bills past duo or that may be past due in your hands. We also hereby authorise Mr. \. B. Kitchie agent here of your Hank to endorsp any rouew- hIs for our account binding ourselves by such t!nth)rsement as fully as if (h>ne by ourselves. (Signed) F. Neufeldeu & Co. No. 7. — Teleijram, Pla'uiUff to Secretary Enterprise Co. lUUTISH COLUMBIA TELEGRAPH. Baiikehville, Marcli 3, 1879. 30 Received at Victoria, Mandi 5th, 3:20 p.m. To D. Gutmann,— Telegraph what directors intend doing. Inform them that it will be ira- I pt)ssil)le for me to pay next twenty cent assessment. What's to bo done with machinery and Ijorsi's y S(mietliing should be decided on at once to stop expenses. (Signed), Samuel Walker. E ^SX, No. 8. — Letter Secretary Enterpruie Co. to Plaintiff , Office of the Enteiipuise Gold and Silver Mining Coy. Limited. ' ^ Victoria, B. C, March Gth, 1879. Samuel Walker Esq. Barkerville B. C. Deak Sik, — Our directors have passed a resolution authorizing the president to accept the 40 lis 'A I I i 25 drafts in tlie liands of the B. 13. N. A. ami I am requesteil to inforiii you tliatyou must retire the three notes when due. Yours &c. Wm. Pollauu, SeiTt'tary. No. 9. — Letter, Plaintiff to Directors Enterprise Co. IJaukf.uvii.le, March '22inl, 1879. To Directors Enterprise G. to get money iiere at the present \ time. Some time ago I had made arrangements to get tlie money hut owing to Mr. NtHifeldcr's 10 death I cannot get the money now as the party witii whom J had made arrangements is afraid that I am going to lie mined by tiie Enterprise Coy. Now tlie only way I can see of avoiding ruination is by renewing thes«i notes say one hundred days as by that tim(( money will be com- ing out of the mines. If you cannot do this thou the only tiling for me to do is to have yon place to my credit the amount standing to ray credit in the Coy books am luiiting to about tVii) dol- lars and also 118 dollars due William Mervyn as I have authority to act for him and in fact 1 have paid him the amount. Ro'^ort Heal 1 also paid and C. Culv«'rwell and M. Quinii. I am sup- plying them with provisions on act. of m )n )y dui thoin by the Eutjrprise Co. up to the pres- ent time, Quinn about 75 dollars and Culverwell about 40 dollars. Heal I paid $32, and have to pay him for 15 days work, breaking I'oad and hauling hay. If these amounts are allowed on '20 assessments it will reduce mine a little, then soil all my shares or give them away and I will pay the balance as soon as possible as I cannot ])ay more than is now duo There is no use in levy- ing any more assessments while these are unpaid unless you dispose of my shares first, stib I tirmly believe the mine is good if properly worked with machinery capable of catching the tine gold but it will not do to run it out in tailings. My belief is that if the company could by any means push the work ahead they would not be losers as they are now. Mr. E. Neufelder hinul Capt Jack Crawford to look after the horses and after Mr. E. Neufeldor left iiere I told Capt. Jack that 1 would take the horses up here where I could attend to them myself as we could not afford to pay anv longer as I thought we might find plenty to pay after what had occurred at Victoria. He said he would stay at the mill till the horse finished eating a part of a bale of hav .'K) that he had left so he has stayed there ever since and is saying that he will charge the comp. for all his time but I took the horses away at the time I told him I would but he does not seem to want to recognize any person in connection with the company but the man that hired him. Let me know how many shar.'S are standing in ray name and in whoso jiossession they are if you can find out. I let Mr. Neufelder have them when he went dov/r to Victoria and I sent to him to sell some of them and I do not know whether he did so or not however the secretary can tell whether they have been transferred or not and send me the numbers of the original issue to me for at present I am not sure whether 1 have any shares or not and ii is very likely some of them were disposed of if not transferred. I also .send you the company books and papers as Mr. E. Neufelder telegraphed me to do. They go by B. X. weight 33 lbs. !<• Yours truly, (Signed) 8 Walber. ESIL e S!L No. 10. — Bill of Sale, Plaintiff (n Pinkerton, with Affidavit of Execution. This Indenture made the "22^1 day of March, A. D., 1879, between Samuel Walker of the Town of Barkerville, British Columbia. Merchant of the first part and Mathow Pinkerton of the ■■ ■;irtL rijiM«mi'-"ftH same pl.ii'o Minor of tlit; stH-o.i 1 part witiiosHotli timt for mul in ooiisiiK'nitiou of tlu> sum of fif- toen luiiulroil duUiiVH iidviiuctHl mul K'ut by tlio party of tho second part to tlio party of tlio first |)art (the receipt whereof ho dotli lieroby acknowledge). He the said party of the first part dotli by these presents gnuit assij^'n and convey unto tlie said party of (lie second part All that messuage or building kiunvn as Walker's store situate in the town of IJarkerville aforesaiil now in tho occupation of the said party of the first part with tho buililings and appurtenances there- unto belonging and also all and singular the goods and other chattels and eH'ects now being in or al»out tilt; said messuage or premises known as Walker's store situate in Barkervillt> afore- said and the estatt; and interest of him the saiil party of tho first part therein respectively To have -uid to hold tho said Walker's ston! goods chattels and etlocts and all and singular other 10 till! i)remises with tlu' appurtenaiires unto the said party of the second part his executors ad- ministrators and assigns subje(!t n(;vertlii>less to tho provis) liereinafter contained Provided always and it is hereby agrei-d and declared that in case tno said party of tlu* first part shall on tli(! 1st day of November next pay to the party of the second part his executors administrators or assigns tlit! snm of fift.'on hundred dollars together with intinvst for the sann^ after the rate of two por cent [ler month, then and in such case the said party of the second part shall at the cost of the said party of the first part reassign the said messuage goods chattels and premises and do all acts and things necossavy for tho purpose of causing satisfaction to bo entered as re- ipiired by law Provided also and it is hereby declared and agr(>ed that in case default shall be made in payment of tho said sum ov the interest thereof it shall la; lawful for the said party of 20 tho second part, his executors administrators or assigns or his or their agents to seize or take ])osses8ion of the said messuage goods chattels and ]n< niises or any part thereof and imniodi- ately upon being in possession or at any tinu; th oaft(;i without further notice; to sell and dis- pose of tho same or any part thereof by public auction or by private contract and to do and ex-, ocute all contracts and assurances thereof he may think proper And it is hereby declared that tho receipt in writing of the said i)arty of tho second part shall (;tr(;ctually discharge purchasers or persons taking the same from responsii)ility in respect of monies therein exjiressed to bt» re- cjivel And it'is hereby further agreed and declared that tho said party of the st;cond part shall receive and take tho monies to bo derived from any sale or sales and stand ])ossessed tlu'reof upon trust in the first place to pay all costs and expenses of such sales and in the next place to !J0 retain tho said sum of fifteen hundred dollars and the interest thereon or so much thereof as shall then remain duo and lastly pay the surplus (if any) to the said party of the first part his executors administrators or assigns And the said party of tho first part doth lH;reliy covemuit and agree with the said party of tho second part That he will pay tho said sum of lifteon hun- dred dollars at tho time horoboforo appointed and that in the meantimo and so long as any part thereof shall remain unpaid he will pay interest for tho same after the rate of two per cent, per month. In witness whereof the said parties thereto have hereunto set their hands and seals tho day and year first before written. Signed, sealed and delivei-ed in j presence of (signed) George Isaac, j (Signed) Samuei, Wat.keu. 40 . " M.\TTUEW Pl.NKKUTON. fFnoM A.] BILLS OF SALE ORDINANCE, 1870. I George Isaac, of Barkerville, make Oath and say as follows : — 1. — That the paper writing hereunto annexed, and marked A, is a True Bill of Sale, and of ■ll M|l | -^,^iMuir i «W f V ! ^ mm 27 every Schoiluleor Inventory tliereto iinnoxed, or therein referred to and of every iittostiition of the ixecutiou tliereof, us niailc. ;iiul };iveii, iind t'Xt'cntctl by Suiniiel Walker. '^ — Tliat tlie liill of Sale wa.s luaile and given by the said Samuel Walker, on the twenty Meoond tlay of March, in the year of Our Lord One thousand eight hundred and seventy nine. 3. — Tiiatl was present and did see the said Samuel Walker in the said Bill of Sale men- tioned, and whose name is signed then-to, sign and excoute tlu^ same on the said 'i'Jnd day of March, in the year aforesaid. 4. — That the said Samuel Walk(T at the time of the making and giving the said Hill of Sale, resided and still resides at Barkerville, B. C, and then was and still is a Trader or Mer- chant. 10 o. — That the name Georgo Isaac set and subscribed as the witness attesting the due exi>eu- tion thereof is of the propter iiandwriting of mo this deponent, and tliat I reside at Barkerville jind am a miner. (Signed) Geohok Isaao. Subscribed to, and S^voni l)efor(; me, this thirty first day of March, .\.. I). 1S7!(. (Signed) Jno. Bowhon. DiHt. Keg. No II.— Hill of Sale Dcedij to DefendmUs' Aijcut. Known Am. Mf.n by these Presents that I, J. C. l^eedy merchant Van Winkle, Cariboo Dis- trict, livitish Columbia, of the first part and Andnnv liinney Ritchie Agent fv)r the Bank of *2(t British North America, Jiarkerville, of the second jjurt. Witne.sseth that the said party ofthe first part for and in consideration of Two Thousand Dollars of moni!y {)aid him by the said ])arty of tlui sei-on 1 |)art at or Ix'fcre the stealing and delivery of these presents (the receipt whereof is hereby acknovvhulged) and have l)argained, sold and delivered and by these, i)resents do hereby bargain, sell and deliver unto the said i)ar- ty of the second part 5000 lbs iion and steel @ 15c per lb, !^0 kegs nails ((i\ '2(lc per lb, 15 k«igs sugar, 25 boxes candles anil 1000 lbs rice to have and to hold tlu> said goods unto th(! said ])ar- ty of the second part his heirs executors administrators and assigns to his and tlu^r own picjier use and benefit forever, anil I tlit; said party of the first pait for myself, my heirs, executors ad- ministrators and assigns will warr.iut and defenil the said bargained goods unto the said parly HO of the second part, his heirs executors administrators and assigns from and against all persons whomsoever. in witnesi whereof the said parties to these presents have hereunto set their hands and af- fixed their .seals this '23rd day of March A. D. 1879 at Vjm Winkle aforesaid. Signed, sealed and delivered in pre- ( (Signed) J. C. Bkeoy. sence of (signe(') K. Hough, witness. f . " Anjjkkw B. limiiiE. Agent Bank B. N. A. Barkerville. •' BILLS OF SALE AMENDxMENT ACT, 1873." Form A. 40 To THE Registrah-General. — Take notice, that a Bill of Sale, bearing date the twenty-fifth day of March, A. D. 1870, made between J. C. Beedy and A. B. Ritchie, Agent Bank B.N. A., in consideration of the sum of ??"2,0((0, has been satisfied, and satisfaction thereof was duly tm- tered by me, on the seventh day of October, A. D. 1870. (Signed) Jno. Bowron, District Registrar. No. 1'2. — AJfitlavit of R. Burns in re Neufelder, with m count annexed. INSOLVENT ACT OF 1875 AND AMENDING ACTS. In the matter of E. C. Neufelder, an Insolvent, Bank of British North America, Claimant. I, Robert Burns, of Victoria, being duly sworn in Victoria, depose and say : 50 1. I am the duly authorised agent of the claimant in this behalf and have a personal know- ledge of the matter liereinafter ileposetl to. 2. The Insolvent is indebted to the Claimant in the sum of forty-one thousand eight hun- n i ju l Hjimij^ iw as 28 3. I, the Claimant li.jkl tlio tollowing (a-s per annoxed shoot marko.l "A" ami '•W') .ui.l no other aecnnty for tlu, claim valued at twenty-five thou.san.l and lifty-six dollars CH-IOO. .Sworn before me at Victoria, this, u |>,.„_ 3lst day of ^^arch, 1879. ) "• ^'^"^^*'- c r. DupoNT, r Official Assignee. ' SCHEDUDE "A." NA.ME S. M. Ntlson Notiiriiils Mniy Hodjits Xotnrialg Mary IlodKiB. Ndtiiiiivls Miiiy Hixlges Niitariuls Mnry lliiilgcs "Do. A. Davidson. Notiiriiils A. Diividson. Do. Ddk 187.». Feb. 24 Feb. March March April Marcli 21 8 24 OvKiintiK Intkhkwt. Ukiiatk or Intkkebt :) 00 3 00 i 20 Deduct rebate of Interest. April May Marcli March April May April May .■Vpril May .\pril S. Clay (#538.23) Notarinis (}. Montobio Notarials . , G. Montobio Do ;; Chrts. JIcDonongh Do. ... .... Do. ;,..;' Berling & CrosHninn Do. do '....'..'. JoHpph Oosnell I. llngazzoni Fell * Co ['['\ C. Carpenter, endorsed by A. Mayer A . 11. Green \ J. Eugelbardt R. Ferguson, endorsed by J. Morrison ....... Nass River Fishing Co A. Rome it Co. 'April Enterprise Gold and Silver Mining Co. ... January Do. do. do .. Do. do. do. I " Do. do. do. ! '• }^° ''o- 'lo. '.'.'. February Do. do do. . . ,. ' 30 7 50 I'J 28! jMay Add Interest Pro. Note, Seoiu-ed by W. R. goods valued at $2,000' * for one case mdst, 10 pkgs 40 bxs tobacco, 11 bxs tobacco 200 lbs. each March Interest Overdraft. Secured by notes and W, R. valued at I JJ5,231,64 21 87 21 64 17 'J4 36 36 6 77 12 18 116 76 20 33 1 66 5 00 6 80 70 1 70 15 80 7 50 50 1 87 8 80 7 91 2 80 5 80 5 80 2 12 1 63 1 25 2 70 4 04 8 75 14 46 7 23 15 59 2 35 93 60 195 23 \ ... Over draft at B Amount. 500 5 500 601) 5 500 GOO 600 100 5 100 100 3025 8 36 313 23) 5 ) 400 ( .5 \ 600 335 3U0 600 300 139 80 245 00 188 50 324 418 20 750 1145 86 417 70 709 36 4 70 1010 1015 1015 2537 50 507 50 1015 Total 3616 64 Vai.uk, 904 16 paid 23 10 14787 47 6100 20 33 6120 33 12491 63 arkerville . 12080 80 4012 10 ^looi 4n 250S6 68 S 10764 78 13308 72 2000 5231 64 3012 16 25056 08 mmi mim mmmmmiiimm It 2\) SCHEDULE " H. • Bills hoKl 118 Collatcnil Socurity o. i ii. F. NenfeUler it Co. NAME. t)VS. Intirrht. Amodmt. 5(M) 405 82 400 11 40 600 600 100 5t!r. 33 350 350 400 30t) 300 208 57 220 07 300 100 100 28 123 15 12 85 ToTAt-. Vkhvt. RraATR op Intkkkst 20u. 8. M. Nelaon 1 Do. i Do. IntereHt nod ooHtR Mary Hodges Do. August Dftvidsou l«7i). March April January .\pril May Jane May Februarv April WTfty 4* 44 June February March January May April 26 20 25 1 23 7 3 20 13 6 1 17 30 30 13 15 5 9 24 6 costs 40 11 40 6 or, @25c. 1377 22 276 44 H isoo' 10 NO 325 2 70 @90c. J. EiiBolhiirdt CliHH. McDonoHub Do. Do, 3 38 li (U 2 70 (1 40 Do. 10 Do. Do. R. A. Nirumo. .... , Do G. Moiitol)io, biilnnce P. McTiernan Do Interest and costs 7 70 2 2i' 5 costs •i 2(! 12 85 7 48 1 H7 1 68 3340 26 i 3006 23 17(M) 5306 67 75 03 75 o:i WnrehoHso receipt for goods valued at .... W. R. 50 bxs tobacco, 4 bxs mdse, 1 bdl mdse. . Deduct rebate • • $5231 64 No. 13. — Aftulavit of Edwin Jolnison. INSOLVENT ACT 1875 AND AMENDING ACTS. • The Bank of British North America, riaintitls, va. Bamiiel Walker, Defendant. I, Edwin Johnson, of the City of Victoria, Barrister at law being duly sworn depose and say: 1. I have this day searched at tlie office of the Registrar General of Titles and found deposited there a duplicate duly certified of an indenture or bill of sale dated tl»o twenty second day of March 1879 expressed to be made between Samuel Walker of the town of Barkorville, British Columbia a merchant being the above named defendant of the first part and Matthew Pinkcirton of the second part and purporting to grant assign and convey all that messuage or building known as Walker's store situate in the town of Barkerville aforesunl then in th(! oc('a[)ation of the said Samuel VValker and also all and singular the goods and other chatte's and cft'octs then being in or about the said messuage or premises from the defendant to the said Matthew Pin- kertonhis executors administrators and assigns. *, ■li Mil <«M 30 noLus n^L^;'/'" r';^ '^'''f"''' '•"^'''^"'•^ ""'' '' tho affidavit ana certificate thereto noxeci 18 now procluctxl and shown to me marked A. an< Sworn before mo this 15th day of Auril i /»*;„«•, i \ 1879 J. Koland Hett. Notary Pubfic ^ f («'Bno»l) Endorsed. -Filed this sixteenth day of April 1879. (Signed,) H. M. Ball, C. C. J Edwin Johnson. Uichfield 26 April 1879. (Signed,) J.L., R. C. C. No. U.— Affidavit of R. liurm in re Walker. INSOLVENT ACT OF 1875 AND AMENDING ACTS. 10 Canada. ) Province of British Columbia, f The Bank of British North America of Victoria, Bankers, PlaintiflB, vs. Samuel Walker, of Barkerville, Merchant, Defendant. bein^ dnKrl^^'T '^ "'' ^i''^ °^ ^'"*'"' ^" *'^' ^'°'"''^" °^ ^""^'^ ^^''^'"^i" «'"'k Manager being duly sworn depose and say : *=■ 1. lam the agent of the Plaintiflfs in this cause duly authorized for the purposes thereof 2. The defendant 13 indebted to the plaintiffs in the sum of $1304.86 currency for princiml money and in erest thereon due to the plaintiffs as endorsees and holders of a promissory note 20 made by the defendant for the payment of $1250.66 with interest at one per cent per Zth to he order of F. Neufelder & Co at a day now past and by the said F. Neufelde and Co en- dorsed to the plaintiffs and the plaintiffs hold no security for the said debt. 3- To the best of my knowledge and belief the Defendant is Insolvent within the meaning of the Insolvent Act of 1875 and Amending Acts and has rendered himself liable to have his es ^.te placed m liquidation under the said acts and my reasons for so believing are as follows- The said promissory note fell due on the tenth day of March last past and has not been paid and was protested for non-payment and I am informed and believe that on or about the twenty sec- ond day o March last being unable to meet his liabilities in full he assigned and conveyed the whole or the main part of his stock in trade to one Matthew Pinkerton without the consent of 30 his creditors and without satisfying their claims. 4^ I do not act in this n-aiter in collusion with the defendant nor to procure him any un- due advantage again^.l his creditors. ^ Sworn before mc this sixteenth day of ) April 1879. (Signed) W. Pollard, I Commissioner and Notwy Public of B. C. ) Endorsed.— Filed this 16th day of April 1879. (Signed) H.M. Ball, C.C.J. Received at Richfield 26 April 1879. (Signed,) J. L., R. C. C. And I have signed, R. Burns 40 mBBBBBBmrnmrnM f«lcl, Pute _ ' llie > .sevc iiiitl 1 [)Ollt solvt at '; nam' stH'or K'ttoi tecnt a wri tho f( ciuiit cicut prv i tho s I agr(3e and a undei and c , 1 of F. vidua tliree .- such Robe dition afores istratr held I leased 1 i1'>'\C3/^' JJip86 (whici came Acts) „;-^/:i- , :■ joint c ditors ceased ' positic follow) ents b one ha cents i one ha to eacl No. 15 — Deeil , botwoon Edwar I Collins N«'u- ft'lilcr of tlif city of Victoria incrchuiit licrt'iiiuftcr ^ullcd tlic insolvent of flic tirst part, IJolicrt I'atcrson Kitlict of the said city administrator of the personal estate (»f Felix Neiifeider late of the said city intM'cdnint deceased hereinaft r called the administrator of the second pa f^ranted by the Suprenit^ Court to the said administrator And whereas a writ of attachment under the Insolvent Act of lH7o and Amending; Acts was issued on or about the fourteenth day of March, 1H79 against the Insolvent, .Vnd Whereas the joint estate is insulH- cientto pay in full tins joint debts and the separate estate of the said Felix Neufehler is insutK- cient to pay in full his separate debts and the separate estate of the Insolvent is insufVicient to pjiy in l' 11 his separate debts And whereas the jointcreditors of the said F. Nenfelder iV- Co. and the M'i)arate creditors of the said Felix Nenfelder and the separate creditorsof the Insolvent liave'Jd agreed with the said Insolvent and with the said administrator for a composition discharge release and assignment upon the termsand in manner henunafter mentioned and as to the said Insolvent under the provisions of the Insolvent Act of 1875 and Amending Acts And whereas the terms and conditions aforesaid are as follows: That the Insolvent shall pay fifty cents on the dollar on legitimate claims against the estate of F. Nenfelder i'«i»w«i*'<^'"™^^^^ ^^^^^^^^^^^^^^^^^^^^^^^^ tf^ :}2 Lipsett such notes to bear sumo ilates witli these presents iiml to bu iiuule payable iicconling to the times of the siiid respective composition pnyniMuts And in considonition of snch payments and delivery of the said notes and of the premises all and every of the said creditors do and each of thtim doth release and discharge the said Edward C'ollins Nenfelder and the saiil ailministra- tor and each of them from all their (the creditors) respective demands and claims against tlm said Edward Collins Nenfelder and the said administrator and each of them and the said joint and separate estate respectively And the said creditors do hereby direct and anthoriz(> the as- signee of the estate of the said Insolvent and also the administrator of the estat*; of the sanl Fe- lix Nenfelder deceased to deliver up grant and convey to the said Insolvent the estate and eft'ects of the said Insolvent the estate and effects of Felix Nenfelder deceased and the estate and efVectsK^ of the late firm of F. Nenfelder it Co. upon this deed being executed by a nnijority in number of the creditors of the late firm of F. Nenfelder &, Co. and of the Insolvent who have [)rt)ved claims to the amount of one hundred dollars and upwards and who represent at least throe fourths in value of all the claims of one hundred dollars and upwurd:' whir-h have been so jiroved And it is declared and agreed that this deed of composition and discharge is made in pursuance of the Insolvent Act of 1875 and may be confirmed thereunder and also that the same shall be in- effectual unless and unless the same shall be executed by the aforesaid proportions in number and value of the said creditors Provided always that in ascertaining the amount of composition payable to any creditor by virtue of these presents the value of any security he may hold shall he deducted from his debt under and in accordance with section 8-4 of the Insolvency Act of '20 1875. In witness whereof the said parties have hereunto set their hands and seals. Signed sealed and delivered by each party hereto in the presence of the witness whose name is sot opposite to each signature repectively. Witness to Signature of E. C. Nenfelder. Wm. Gregory. J.C. Smith. J. 0. Smith. J. C. Smith. J. McB. Smith. J. McB. Smith. A. E. B. Davie. K .Magurl. H, H Williams. Williams. E. C. Neufeldeb. WkLCH, KlTOET it Co., ( R. P. KiTHET, ] pro Andrew Welch, 1\. P. RiTHET. C. Strouss &. Co., I Laumeister, -s per C. Strouss, ( Under Attorney. RoiiERT Mag on;,, I H. M. Ball. < By his attorney in fact ( A. E. B. Davie. {Levi, Strouss & Co. byM. W.T. Drake, their attorney. (L. S. E. WERTnK>friu, by M. W. Tyrwhitt Drake, [L. 8.] [L. S.] [L. S.] [L. S.] [L. S.] [L. S.] [L S.] [L. H.] 30 [L. S.] 40 T. H. Williams. T. H. Williams. B. P. Griffin. R. Byrn. ( his attorney. iG. MoNTonio. Drake it Jackson, his attorney. ( Henry Christie, '( by Drake it Jackson. Rickman & Ofner. Turner, Beeton & Co. [L. S.] [L. S.] [L.S.] [L. 8.] [L. S.] 50 ftiM^ ^^f t mi if i mg^^ I( tify: Isl Iiis cre( tliree-f( the afo 2 thirty t 3 which I 4 $100 an charge i 5 consent 38 Witness. A. McParland. Thos. Earle. C. F. Todd. J. H. Nicholson. T. Lubbe. T. Lubbe. T. Lubbe. T. Lubbe. T. Lubbe. J. Cran. R. Hall, Jr. John Grant. Alexr. Munroe. Gr, Gowdy. A. Bossi. Edw. Tynon. A. Crosson. John Johnston. John Johnston. D. M. Eberts. i Names of parties. I Haus Bros. { by their attorney. (Thos. Earle. Amos C. Yousian. J. H. Todd. S. J. Pitts. Steitz Bros. WhiNSTON & LUUBE, I A. C. Deitz & Co. I per G. W. H. Whoaton. j M. Climan & Co. by G. W. H. Whoaton. A. CASA.\rAYOU tt Co. (K. Burns for Bank of ( British North America. ( Pro Findlay Durham Si I Matthew T. Johnston. Damd Leneven. ( Hudson Bay Co. h^«i'Wm.( Charles. Richard Carr. Grancini Bossi. Andrew Ro.me & Co. j RURBER Co. Ip- P- JauKss Crosson. j P. pro Frankenhaet tt ( ( M. W. Waitt. M. W. Waht & Co. C. M. Beak. L. S. L. 8. L. 8. [L. 8.J [L. 8.] [L. 8.] [I.. 8. I [L. S.] [L. S.J [l.. S.] [E. S.] Brodie, [L. H.] [L. S.] [L. 8.] [L. 8.] [E. 8.] [L. 8.] [L.S.] ;o. [L. 8.J [L. S.] [E. 8.] 10 20 :m) INSOLVENT ACT OF 1875 AND AMENDING ACTS. In the matter of E. C. Neufelder an Insolvent. ^.^^ I Charles Thomas Dupont Assignee .f the estate of E. C. Neufelder Insolvent hereby cer- .isoi:^itrr;:::^;::^^^^^^ - 70-. ;-"--.•.. Uiiae-tourths in ,„1„„ „f „u IW claim, of SloZ 1 , '""''" '""' "■'"' »?'•««»' «.e .fo™,„ia iu»o,™„.to,,,p,t::rL'ro:::;i:':rt:,:;;t '™ """ ""'°'^ -' thirty tJ'"' "'° '"'"' "»'"'""■ -' '■!'"".» of «,K)«ud „p,v.„l, „„i„„ „„,„ „ „„,„,,.„ which >I^:il':Xti7m.m n""" "' *'"" """ "'"'•"'» "«""■»' "■" »'"-"■• '"»i'™' '" charge „, ,L „f„,,: -'a hi^itrti't;;":!™:"""'"' *" "■" '■"""^'' ""»"-»" "■• ■•■- PIPMItflSiS!J!!i«SBJim.iBiJlffl".M J- i J. u G That at the tir.st iiiei'ting of orotlitors of the iiforesaul Insolvent hclil at my otlit'c on tlio 2r(l diiy of April 1879 the Insolvont nuulo un otlor of composition a copy of which is annex- ed hereto . Tlie following resolution was moved by II. Bnrns Esij. representing the IJunk of liritish North America and seconded by Mr. Rome of the tirni of Andrew Uome i\i Co. and carried: That tlu! ort'er of composition made by tli(> Insolvent be accepted, and that a committee to con- sist of Mr. Todd, Mr. Johnston, Mr. MtiB. Smith, Mr. Earle, and Air. Carr be a)>pointed to (Ex- amine into condition of estate and report at the next meeting of crcnlitors and tiiai this meetiiig be adjourned to tiie Uth day of April next. 7tli That on the 9th Ajiril an adjourned meeting of the creditors of the aforesaid 10 lnsolv(iut was Jiold at my ottice when the committee appointed at meeting of 'Jiid .\pril rt^port- ed in writing recommending the acceptance of otter of con;position made by Insolvent. Hth. That a special meeting of the creditors of the aforesaid Insolvent was called pursu- ant to See '1'.) and 50 of tint In>i- (hit.. I nromiso t.. n.,v LVi . , , Vktokia, April IC, is?!). Eiidor.sed.~-li. Lipsett. .'J!2,()70.G4-1()() l^aid, Sept. IS, 187'). E. C;. N(;i'KWj)K]i. Three liionth.s id'ter d.ite I i)r.)mise"tn\...w"li , , . ^'*^™"IA, April U\, ISV!). seventy 04-l()„ dollars, .t i.udc'iS cJS.-; ."^iX r. 'V^^''^ l^"^^""' ^-> t'^^^-'^ -' ' ■^•■v-ii.i, i>. I ., > aiu,> received Endorsed.-K. Lipsett. p,;,,^ ^„^,, ,, j^^,, E. C. Nk.kkldkk. !j!2,07().()4-100. [Duo 19th Oct.] <-.. I i>'iiu i;;ui yjQt \r Six months after dute I Dromi^e M ,.,.,. , 'J , Vicroiiu, Apiil 10, It "" '■>■ <«-'"» doll,.,,, ,, ii::u] ■iUf;s,^;; : vc";;; ''n''r i-'T""' '"" '," " 11, » lUKJuii, i>. o., Vjiiiio received. Endorsed.— R. r,in.o«ff E. (! TSTmrr.B, , 1879. iiHiuid luid orsed.— K. Lip.sett. Amended Claim Bank of liritislA^orth I,f '"'"^"^ '■^"''". oi 131 UI.SJ1 JVoiti America MRain.st Estate F. N : If^th April, 1879. E. C. Neufelpek. oiifolder &('o., u.h at 20 NAME. S. M. Nelson Man- Itodges Do. Do. Do. Do. ■\. Oavidson. Do. Pp. DUK. OVKRDDK IHkUATK Of! ' Intkrkst. I Intki'.kst. ' '"^""UNT. I Costs. S. (Jlay .; _ 'i. Moiitobio Do. Do. ■■'.'.'.'.'.'.'..'.'" Cha.s. .McDonoiigh ......... Herliiif; cfe Ciossinau R. FoiKuson. endorsed J.' Morrison' NasH liiver Fishing Oo .V. K. (iieen J. EngellinnU . . Enterprise (Jold and' Silver MiuiuK Co Do. ,)o. ,io. ^°- <1'> do. g°- 'lo- do. g"- ufoUl(>r \- Co., nt 16th April, IH7!). NAME. Dcr OvKiiDuie Intkukst. Kkbatk ok Intrbch'i Amocmt. Costs. Total. \alvb. 8. M. Nelson 1879. Feb. March April Feb. March April Muy March April May April Junuary Februory 24 8 24 8 17 24 5 4 i 19 28 27 14 11 1 6 19 18 21 8 9 20 30 2 6 3 00 1 20 600 niK> 5(M) 000 0(HI GOO KM) 100 100 3000 313 23 300 GOO 335 ;ti)o 19 80 il7 70 7(19 ,'16 'ir,U (10 1142 80 1010 1015 1015 2637 50 507 .00 1015 5 5 5 5 5 5 5 35 5 5 1 50 11 50 318 87 3620 64 12163 18 6439 20 12030 8(i 3929 70 38195 64 Mnrv HoilHeH i'eo 5 00 6 80 Do. ^ ............... ....... Do Do Do 3 00 30 A. Davidson. 70 1 70 Do Do. .• f Add Overdue Interest luid costs ond deduct rebote. 8. Clay Q. Moutobio $7 50 $15 80 50 1 87 H 80 7 91 5 80 2 12 7 23 15 69 8 75 14 40 H25 00 Do. Do Chfts. McDonongh Uerliug & Crossnmu R. Ferguson, endorsed J. \ lorrison NaHs liiver Fishing Co. ' 21 87 21 04 17 94 36 36 6 77 12 18 A . K. Green J. Kngelhardt Enterprise Gold and Silver Do. do. Mining Co do. .. do. do. do. do. . . . Do. do. Do. do. Do. do. Do. do Declaring claim ■ March 4 73 03 121( 7 96 01(K> 11841 63 lie 76 ll(Mi8 ."id Pro. Note 20 33 ■ ■ ■ • 2100 Overdraft 195 23 4407 IK Overdraft at Barkerville . « 3229 70 ] 21030 50 No. IS.— Hrit o/' Altarhment. INSOLVENCY ACT OF 1875. Canada. | Province of British Columbia. ) Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland Queen Defender of the Faith. To the Official Assignee of British Columbia Greeting : We Command you at the instance of the Bank of British North America to attach th e es- tate and effects, moneys and securities for money, vouchers and all the <}ffice and business pa- pers and documents of every kind and nature whatsoever of and belonging to Samuel WulkorlO if the same shall be found in British Columbia and the same so attached safely to hold kcc]) and detain in your charge and custody until the attachment thereof, which shall be so made un- der and by virtue of this Writ shall be determined in due conise of law. We Command you also to summon the said Samuel Walker to be and appear before us in our County Court of Britisli Columbia holden at Richfield on the fifteenth day of May A. I). 1870, to show cause if aiiy he hath why his estate should not be placed in liipiidation under tint In- solvency Act of 187o, and further to do and receive what in our said Court before us in this behalf shall l»e considered and in what manner you shall have executed this Writ then and there certify unto us with your doings thereon and every of them and have you then and there also this Writ. In Witness whereof we have caused the seal of our said Court to be hereunto atH.xtMJ at New20 Westminster this 18th day of April in the year of our Lord one thousand eight hundred and se- vent\-nine in the forty second year of our reign. (L. S.) ' (Signed,) H. M. Ball, County Court Judge. c Xo. l\)—hlt,r, I'Inintiff t» t'nltrftrUe Cn. Haukkiivii.i.I', April l!Uli. To |)ir«'ctnrM KiifcrpriHc (}. A- S. M. Co. HlKH, — MiPit'iHoii in liert* iitid Iiuh Horvcil lut! with tlu' ciulosdil notice I Imvc told liiin tliiit I woiilil return tim nmcliinory ns Hoon iih tlio hokIh witi' piiHsiihln At prcst'iit it in inipoHHihlo to n^tiirii it iiH tli«UMct'k IniHcnt n ad iiistivcnd pliwcs Tlu' snow in off inMoinc places and tliii'o feet deep ill sonic parts The weather is (diilly and snow not ^'(»iii^? us fast as I expected It will lie a hoii\y job to ^et it up tlio inountaiii to |{. ('. location. I have instructed Mr H ('. Nciifehh^r to see you and iiiako arrangoinont with you as to tinui for paying my arrears as Mr. I'oihird wrote int* you were willing to give iiie on fourtli asscssmiMit. I want you to t^ive mo suHicient time to U) »!oliect my outstanding (h^lits wliich cannot be done before August' or Sc|iteniber .\s tlie matter now stands I am like a man with his hands tied and cannot do anything as I am afraid of being sued and seized at any moment conse(jueiitly I cannot pusii ahead as usual. Under thesecirciini- stances the matter must lie settled at once oim and let me know whether I am to have time or not. I Hont note to Mr. Neufelder to til! if In* can make arrangements with you do your I) st liy me and start the mill and miii ■ again if possible and we cau all come out right, luit if you should stirt be sure you get a man that can save tho gold. There is twenty tons of ore at the mill loft by lliotti besides the tailings ought to be run through again and try un I get the gold that was run out. Hy tho timo this was dono ^ o could havt) more rock on hand as I got a small pros- poct in sorao rock close tr tho mill last week I think it is a continu ition of tho Walker lodge It 21) will cost the company very little if they want it. Yours truly, S. W.\i.Ki:u. No. 20.— Petition of Plniutlf. IN THE COrXTY COURT OF BRITISH COLUMBIA, CARIBOO DISTRICT. Insolvent Act of IHTf). . The Bank of British North America. Plaintiff, vs. Against Samuel Walker Defendant. This the petition of tho defendant humbly sheweth: •{<• That a writ of aitachinent has issued from tho County Court in New Westminster and his goods seized his house of business closed by authority of such Writ. That the said Writ has not been issued in conformity with tho Act. That the writ should issue from tho Court having Jurisdiction in tho district in which the trader resides and be directed to tho Official Assignee of such district. That in the di.strict in which the petitioner resides there is both a Court and a resident Offi- cial Assignee. That the petitioner is not indebted to tho plaintif! at whose instance the writ was issued . That the petitioner has a good defence upon tho merits of tho claim tho plaiiitifl' makes against him. »•» That the petitioner has a set off against the claim the plaintiff makes against him. That the plaintiff's claim is not provable in Insolvency. That the property in the claim made by the plaintiff against the petitioner is not legally vest- ed in the plaintiff. That the petitioner in giving a mortgage for money due and owing and for future advances for the purpose of carrying on his business has committed no act of bankru|)tcy. That the mortgage given is not in delay or obstruction of his creditors. :J)tftMipj|!lipipi^ipinifiii,utiijj,i^nMuiHi ■ 89 That tlio plaintiffs shnnl-i i ■mod b„.,, „„J p„r»e b, the „,„„„„, X fpLtaiS """ "'" """«'""" I'- ™ t (>in|m- 8ami Ki. Wai.kkij, E-.^H ^o. 23.~A(fi"-'-! '""1 "'-ty 17- Beedyandindorltotehla^^ '' ''' -' ^-'-.t in f.v-. -f one ' ■ 3. The claimants hold no security for the said claim. Sworn before me at the City of Victoria m the Provmce of British Columbia, this 24th ) day of June A.D. 1879. )■ Chas E. Pooley, Commissioner .fee. ' for taking affidavits. 10 •( <'.20 And 1 have signed, K. Burns. "i^o. 2i.~ Affidavit of Plainti//. IN THE SUPREME COU'iT IN CHANCERY. Between 0-^muel Walker, Plaintiff. 30 and. The Bank of British North America, and Charles Thomas Dupont, Defendants. I Samuel Walker of Barkerville, British Columbia hotel keeper make oath an.l say • 1. The Ba„k of British North America have procured .he Beedy note for the pnroose „f o3 \^„f f *"7;^- - ^t -«f ;-t -e in Insolvency. The balance'is about 2^, ,i ...^ !' T ^^'r ^Tv *''y T^'^ ^""^ "^^^ """'^ ''"'' fi'^*^ the proof after the institution of this .nit and as I verdy beheve or the purpose of bolstering up the Insolvency proce.d.ngH. 40 3. My shares .n the Enterprise Company have been .sses.sed with all the other assess ments except the first, whereas my agreenaent with the Company was that m h w : " t o mmmm tmriamimmim , 41 l)o fro*' from a.sHi'HSMifnls so f.ii us tlif prociirinjj; iiinl fii'dion of tin- luill wi-if roni'iTnoil iiol- witlisUimliiin wliit'h agrorment ray sh.iros lmv«> bo8 incurriHl in llio pro- curing and erection of the mill besides nil which I hi»vt5 tiohum imninst the I'onipuny for nhoiit $8(h) as mentioned in a ]>revions atKd.ivit .ind I hiiveu p)oddefenee on the merits totlie Knti r- })rise notes ;is I liuvc receisi'd no eonsivlmilion for them iind tliev hue luen delivered to tin' Comjmny by the IJank coutrurv to uiy instructions as uppturs by my letttr to the Ihuik of ITi February 1S70. I. 1 have b(>en refnseii by the ConiUy Court Jud;^'«^ at Uieiitiekl on my duly present<'d p»'ti- tion to set aside tiie [nsolvenoy prooeediuj^s presented to him lil)erty to contest sich prol•eedin^^s and to disprove my Insolvency tho Judge slatibg on tiio hearing of the appliealion that lie had III no jnrisdictiori the anM'iinf in di.tpnt'" being beyond $.")0(). 0. 1 was not Insolvent at the tinio of t!te writ of attaohmeut Imt ui eonseipienee of its be- ing enforced my busine.sHas a store-keeper has been destroyed and I have been greatly thimti^;- ed and even now if the lusolveuoy proceedings wen^ set a->i Ir' leoulil in ashoit time i t all my ind(d)to(bie8s. (>. My store has not been properly attended to sinc«' the Insohcney. It hns ix-.n in a j^icat meaauro destroyed by negligent measures for its preservation und will recpiire great expense to (it it for habitation. 7. My busiiuris has been eloseil \vh(>n its confiimain'e wcaM havt^ beiH'titted my evrditors and myself. 'id 8. There has been no mooting of ray creditors called nntd Jately when the was convened bv permission of tlie (^)aniy Court Judge without notic" to mc of the application. it. - There is a resident Ofticial .\.-tsignec at Barkcrx illc Mr. (ieorge Hyrnes yet tlu' ollicer in- trusted with the carriage of the Insolvency resides at Victoria and therefore I liave no fairop- |)orlnnity of communicating with or serving process upon him excej)t at a great expense. K*. The mortgage upon which the writ of attichment was founded was given /«mi((//V/c nnd not for the purpose of hindering or defrauding my creditors. The n)ortgagee agreed to advannt me ^1500 and did advance me for tlie purpose of carrying on my business over ?7t)() (seven hun- dred dollars) and would have advanced me the balance had not the Insolvency supervened. Sworn before me at Richfield the "ititli dav j| of July A. D. 1S79. Before me, > Geouoe Bvunes, a Commissioner itc. I (Signed,) :k) S\Ml r-,T. W.\I,KKI( No. 'lo.—On/fr Xisi. • IN THE SUPREME COl'KT OF BRITISH COLUMBIA. In the macter of Samuel Walker an Insolvent. Upon reailing the affidavits of Samuel Walker above named severally sworn on the 'JHth .lay of June 1S79 and tiled on the 14th July following and on the 2()th day of July IH79 and lihd this l-ith dav of August 187;) .\.nd upon, hearin;.; .Mr. .V E. H Davio of (]ounscl for the sjiid Sauiui.'l Walker I do Older that the Honorable HeiTry Maynard Ball one of the Judges of the County Court of British Columbia his Attorney or Argent Charles Thomas I)u|)ont Othcial Assigne« •" In- 10 sc'lvencv tor British t^ihunbia hiri Attorney or Agent ami the B.iiik of British North America th nr Attorney or Agent do attend at my Chiimbcrs-- at tlic Court House James Bay Victoria on Monday the eighth day of September A. I). 1879 at the hour of 12 no(>n to show caus 'J<> Muniliitofi/ (h'llrr. IN TiiKsri'iM-MKcoriiroriiKrnsn colimi'.! \ Tn the miitU'r of Sii!iUK*l Walkt-r lui Insolv»>iit niiil (if it Snnm>f CoutiHul f«>i- tin' Mmik of Hntisli North Am<>ri<'n Mr. Klliott of ('(MuiM«'l for the Honoriibit* Henry Miijnjinl ll,ill, C'vaiity Court .Imlm' Mr W •.Ikom (l- ('. mill Mr. WiW K. li. I).i\ if of ('DuuHel for tlll^ IiiHolvcnt luul no oiii> iiinxMriim for lln' Of- liciiU A.ssi)^ii<'<' ami upon roailiii^ \\w sovcral jillulnvitsof the lu.solvcnt .-.worn nsiici'tivfly tlii-'iStli the I tth duy of .Vu^MLst lS7:f mul tho 8tli tUiy of Hoptonilter l.S7'J tlul<> iinidiivitK (>'■ 'tuy Ciirh'ton IMiiiin-.'y ami .Kllicrt H. Wiilker .«worn respectively on llie 'JCitli ilay of ■Aw^^nsf 1S7;> and filed on the Sth day of Sejit(>inher 1H7'.> the alVnlavit of Charles Wilson sworn ifs- pectively on tho'itith day of August lS7l( an.l tiled on theHth li'.y of Septiuuher IS7'.( the alVida- vit of Joseph Cannell swonion the lilHIi day of .Vugust 1M7'.I and tiltMl th(> Sth dav of Sepleniher lH7'.t the atrnlavit of Charles Wilson sworn on the'JOth d.iy of Kn^vA lS7;t and tiled the sth day of Se|)t» niher 1H71> the afliila\it of Ili'nry Maynard Hall sworn on tli" 2tith day of Au}.;nst ls7'.> and tiled on tho Hth day of September 1S71) a oortitied eopy of tlio minutes of the C«)unty Court Jud^e of the pro('eedinj;s hefori' him on the I'lth day of May lS7i)and tiie petition of the Insol- vent tiled in the County Court at lliehfield on (ho Tth da\ of May IHT'J I do order that th" said the Honorable^ HtMiry Miiyuard Hall one of the County C()ur Jud}.?esof British Columbia do pro-'i'l coed to hear and adjudicate upon the said petition of tht> said Sainut*! Walker and I further or- der that the said Samuel Walkt^r's costs of this application be tax<>d by the pro|)er otVicer and lie paid by the Bank of Hritish North America. Dated the 15th day of September A. D. 18751. (L. S.) ' (Signed, ) .1. II. (iiuv, J. No. 27.—A(fl,/('v!( of li. liiirn^. THE INSOLVENT ACT 1875 AND THE AMENDINd ACTS. In the County Court of Hritish Columbia. In the matter of Samuel Walker an Insolvent. The Bank of British North America, PlaintiU's, and • Samuel Walker, Defendant. :«) 1, Robert Burns of the city of Yictoria in the Provinc(i of British Columbia Manager of the Bank of British North America at Victoria aforesaid mak<; oath and say: 1.-— That as manager of the Bank of British North \merica I now hold as a collateral secur- ity for the overdrawn account of one Josiali Crosby Beedy with the said Bank a eertaiji promis- sorv note dated the sevcMitli day of December A.D. 1878 for five hun'vi_-»w.a. t«y*i T^!P?PI!PiRippiWBBWiWpWPiP^ siiid nmik ill Victoriii siiu-t- Jiiiitnirv last he lias always iiii-nlu>iif siiid noto hh (I|i<< of tlio collattTiil srcnritit'rt lii>lil \>y liim foitln' KViiilraft of tin* saitl .losiali Croshy Mt'cilv After the writ of attacliim-nt was issiii-d against tin' saiii liisolviMit I olitaiiu'tl tli<> ('oii>M>nt of till' saitlJosiiih Crosby Hoi'dy to prove the siiiil note against the esUt<> of the said liiHolvent I was advised l)y flie solicitors to the said Hank that it was donlitfiil whether as the holder of of a collatt'ral security I could cliar^,'!' the expense of provin^^ it or other expenses connected with enforcini^ payment of it against the person who had deposited siu-h collateral security without HfHt having ohtaiiied his consent to such expenses heiiig incurrtMl and it was simply ami solely in order to obviate' any such tpiestion that I obtained such consent. Sworn before me at Victoria Hritish Columbia j this '.tth day of Octobci A.D. \Sl\K (Sd.') J. Holand H.tt, \ A commissioin'r in S. ('., }{. ('. (Signed,) 10 It ISCKNH. No. 2H.— T)ro Nodres nj A/>j>tiil hi/ Pluliifif'/'. IN THE COUNTY COURT OF HKITISII COLUMI'.IA H()!d)KN AT IMCIII" ILLD. l.NsoLVEM A("r OF lh,6 and Amjadinu A(Ts. In tlio inattor of Samuel Walker an Insolvent and in liie m itter of the hearing of the peti- tion of the said Samuel Walker to st^t asid(> a writ of attaclinicnt. Take notice that Samuel Walktu- the above named Insolvent 1 icing dissatisfied with the de- termination of the Hon. Henry Mayiuud Hall one of the Judges of the said court upon the *Jl( hearing of the said ])etiiio'i in jioint of law and upon the admission of certain (nidence and the rejection of certain other evideni'c doth intend to n[)peal against the same to the Supreme Court of British (Jolumbia And further take notice that the following are the grounds of sn
  • lder on the date of his deed of compo- sition and discharge. That the court is in error in deciding that the ilatt> when Neuf(*lder c^ame into enjoyment of his estate after litigation with the olticial assignee and on the order of the court is the datt^ 'lH when the property in the note aforesaid reverted to him. That if the court be in error as before stated the claim of the petitioning creditor is not pio- vable ill Insolvency for the nsasons set forth in the petition of the Insolvent and further that if an account be taken between NeufoMer and the Insolvent the amount will be reduced below the amount on which a writ of attachment should issue. That the court is in error in admitting tlio claims of the Enterprise Oold »t Silver Mining Company Limited and that the objection taken to the a,dtnission of these claims are good. That the claim of the )>otitioning creditor on a note made by the InsolvtMit in favour of J b. iieedv should not be admitted as no notice had been given of the intention to bring forward this claim cons queutly no opportunity given to produce evidence with nsfenuKH) thereby. 10 That such claims and debts as were before the court on the fifteenth day of May are all that should have been admitted to a hearing particularly as no notic s li.vd been given to the In- solvent of the intention of the petitioning creditor to bring forward other claims than the one on which tlie writ was sued out. That the section of the Act under which the hearing was had gives the court no power to deal with any claim but the one on which the writ was sued out. ,,^, _:,.JII « u Tliiit tilt' liiMilvoiitH ii'tti'i'rt In till- Kiit«'r|)riHi> (Jnld itiiil Silver .Milling ('<)iii|iiiiiy li| slmulil not h« riviMvtHi im «wi(|«"nc»» without nil th«» tr .iiiHiu'tioiis liftwooii lli«» liiHolvciit iiixl tin- Kiit«'r|trisf (ioM itinl Silvtr Miniiin ('miipiiiiv un' lir«>iit'lit l>««fon< tli«' Coiirt I'll it tint (J.mrt H 111 I'rr »r ii I vi I1114 tli if th>' tn irt^,' i< > ^^|*■ '> '>>' tli ' lusolviMit to Mat- tlit'W I'iiikortoii is au Act <>f IuhoIvoih-v within tiu' nK'iiiiiii^ of th«' Act. To til.' Hon. H.M. Hall, (Sit-n..!.) Sami 1.1. W ai.kkii. Coniitv t oiiit .linlm«. I l>v his Aj;<'iit, Ah'I to Jiiinrs liiiiilsav, Khi| , i ('liiirl«>H NS jlsnr Ittgislmr ton tv I'oint IN riiE coiixTV coriir (-r nnmsH coi.rMiuA holdkn at hk hfikd in 1 Inhoi.vknt An l.sT;") anh Amkniuno Acts. In till' III ittcr of S.iiun )1 V'.iiknr an iinoivitnl mi I botwoim iln! Iliiik of Briti-il) North Aiii- eric'ii pliiintirt's iind Sanun'l Wiilkt'r lU-ffmlant. Take notic" that the IiiH()lv»>iit int«Muls to u]>p*>al to thf Hon J. H. (Iniv oim> of tlu) Jmlgos of the Supronu) Court of Uritish ('olmiil)ia from tht! dotnsion of th Uiditicld. i (Signed,) Davik \ Pooi,ky, S.tlicitoiH to thtt IiiHolvfiii. 2l( * No. 2!). -OnU'r on A^n>fal. INTHl-: SUPHH.ME COUItT OF nUITISH COLUMBIA. Between Samuel Walker, Aiiiu'lhint. and The Hunk of British North America, lU)^iponduntH. In re the Insolvont Act of 187") and Amen. ling Acts. Friday the 27th .lay of Fohruary A. D. IHHO. Upon reading tin; alfidavits of the above n \mo 1 Ai)|)eliant and of Charles Wilson filed herein on the fifth day of February 18HI) and the several docum.Mits returned to this Honorable.'^O Court by the Registrar of the County Court of British Columbia holden at Richfield and u])()n hearing Mr. Alexander E. B. Davie and Mr. Theodore Davie of counsel for the Appellimt and Mr. Mcv'reight Q.C. and Mr. Robertson (^. V. of Counsel for the Respondents, It is onlere.l that the order oi' Judgment of the Honorable Henry Muynard Ball the Judge of tho said Coun- ty Court made on the 31at day of October 1879 in a cause wherein the above named Respond- ents were plaintifts and the above named Appellant was Defendant and whereby it was ordered that the Petition of Appellant to set aside the Writ of Attji'lim.'nt issued against him at tins suit of the Respondents be dismisse.l with costs and that tho pioceedings in Insolvency must go on, be and same is hereby set aside. And it is further ordered that the costs of the Appellant of •»Z^ ♦' .0- IMAGE EVALUATION TEST TARGET (MT-3) /. O Yj I 1.0 I.I 1.25 JfrilM 12.5 ."' 132 m 1.8 14 I 1.6 V, i9 /}. /, .> x"^. -% o 7 ///. Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. M580 (716) 872-4503 Q'.r i/x f<' \\ I; 45 iind f(>iiHiH|iient upon thin Appeal he tiixed bv the Ht'giMtrtii iinil when ho t«Xfd b»> piiidbv tlu' respondents to the Appelhint's Solicitors, Messrs. Diivie \ Pooley. (L. 8.) (Sigiioii,) By the Court, Jamkk C. Puf.vost, [{. No. 30. — Coitntjf Coiir' (h-tfer. IN THE COUNTY COURT OF BRITISH COLUMBIA HOLDEN AT KH'HFIELD. Insolvent Act 1875 and Amendino A(n'H. liotween The Bunk of British North America, Phiintiffs, and Samuel Walker, Defendant. 10 Upon reading the judgments and order of the Su|)reme (^ourt of British Columbia dati-d Fel>ruary the 27th A. D. IHHO in an appeal from an order of this Court in Insolvi^ncy dated the 'Mnt day of Octol)er A.D. 1879 wherein the above named defendant was the appellant and the al)ove named plaintiffs were the respondents and upon nMiding theatfidavitof Mr. A. E. B. Davie of the tirm of Davie and Pooley Victoria solicitors to the above named defendant and n|>on hearing Mr. Charles Wilson .\gent for the above named (h>-fendant and Mr. D. M. Ebertsconii sel for the above named plaintiffs I do order that the writ of attaehmont issmdoui of the Countv Court of British Columbia holilen at New Westminster dated the iMth day of April .\.D. IHT'.I bo and the same is hereby set aside and annulled And it is further ordered that the plaintiff do pav the defendant's costs in this motion. '20 8th May ll-i8(), I (Signed,) H. M. Balk, Uichrteld. ( (L. S.) C. C. JuiuJK. No. 31. — Notice of Apfteal fiy DefemlaiitH. INSOLVENT ACT OF 1875 AND AMENDING ACTS. In tuk County Couut of BaiTish CoLiTMnu Holden at Richkield. The Bank of British North America, Plaintills, vs. Samuel Walker, Defendant. Take notice that the said plaintiffs intend to appeal to the Hon. H. P. P. Creaseone of the Judges of the Supreme Court of British Columbia against the decision of the Hon. H. M. Ball 30 ('ouity Court Judge at Richfield given on the 8*h day of May 1880 setting aside the writ of at- tachment herein, on the following amongst other grounds. 1. That the only petition presented by the defendant against the writ of attachment in this case was heard and finally disposed of by this court on the 30th and 31st Octo' jr lust. The Judgment then jn-onounced by this Court dismissing the petition was final and conclusive under Sect 18 of the Insolvent Act of 1875 subject only to an appeal as provided in Sect. 128 of the said Act. That appeal had been taken and was heard and the Judges havi^ merely set aside the order dismissing the petition. The petition is not reinstated. The Judges of the Supreme ('ourt had no power to remit the case or to order it to be reheard. '4 \\-:'$. i htti Co of ab< um isb of ati( hil del prt ap] led hir « Be ha uo eff . hai be noi 4<5 2. The (-ounty Court Judge having once heanl the petition is functus officio, he has ex- hausted all the authority the statute gives under sect. 18, and his authority is goue. 3. The application to set asitlo writ was by way of motion and a Judge of the County Court cannot on motion set aside a writ us the statute only allows it to be done on petition. Dated 8th May 1880. (Signed,) A. 11l^•t of British Columbia holden at Richfield in a cause of Insolvency in the said Court wherein ilif above named Appellants were the plaintiflfs and the aliove named liespondent was defendunl and whereby it was ordered that the Writ of attachment issued out of the County Court of Brit- ish Columbia holden at New Westminster dated the 18th day of April A. D. 1879 (at tlm suit 20 of the above named appellants against the above named respondent) be set aside and annulled and upon reading the affidavit of the above named respondent filed herein this day and the ex- hibits thereto attached and upon hearing Mr. Alex. E. B. Davie of counsel for the said res|>on- dent and no one appearing for the appelLmts It is considered that the appellants have not proceeded with their appeal according to the law or rules of practice and This Court on the application of the respondent dothorderth.it the record (if any) be returned to the officer entit- led to the custotly thereof ann<'e of in- terest, is a main fact on which the present i)laintiff relies as a proof in the first place to sho.v: 1st. Want of probable or reasonal>le cause; as to which, every court has decided against tlie Bank, (except the County Court on one occasion, actually without any evidence at all) The only ground alleged by the Bunk's Counsel in justification of this litigation was that Walker always insisted that it was wanton and unreasonable, and always asked (and got) his costs in every court to which the Bank dragged him. 1 think that the jury may also be safely of opinion with the Plaintiff and with every court before which the matter has been brought. The Bank's claim to be a creditor lies wholly on the Neufelder note; which, it seems clear, ought by s 60 of the3(> Act 1875 to have been restored to Neufelder and to have been Neufelder's property on the 16th April. Tlie Beedy note so far as the Bank's claim against the present plaintiff is concerned, was completely satisfied, by the Bill of S ih* to tlie extent of 120 )l), and other money payments extin- guishing Beedy's overdraft towanls the end of March and beginning of April; at all events, long before the month of October 1876. It was attempted to coiitradict that Bill of Sale by the present recollections of a witness as to what was intended to be thereby effected. This of course is absurd. The Bill of Sale is an absolute Bill of Sale, and cannot now be deemed a condi- tional Bill of Sale because the Agent who abstained from ent«ring into possession of the pur- cha.se 1 goods is now under the impression that it was intended to be anything else; at least this cannot be contended as against third parties; viz. not ag-iinst Walker. The Bank's debt agninst4 ) Beedy has clearly been extinguished by that Bill of Sale to the extent of |2'X)0. If by their own neglect in not taking the iron and other assets into their own possession they have enabled Beedy to waste these goods, they cannot charge Walker on that account, and pretend to hold Walker's note as security against the consequences of their own heedlessness. The Writ of at- tachment depends therefore on the Neufelder note alone : (which as above pointed out became Neufelder's property after the 16th April.) The Plaintff relies on this persistence by the Bank in unsucoossfal litigition to show sec- ondly the motive of the Bank; that they we^e actuated by malice. Malice does not mean the hatred and ill will such as is included in a charge of murder. In murder, the desire is to kdl. t*) iJ(' 4» Here, it Ih enough if tliertt he a deHire to iiij(ir«M)r to ruin tiiDiiicinlly; ii spirit of oltNtiimtM liti- giouantiss, a reHoliite (littenninntion to lijive their own way rij^lit or wron^; uml not to be heitton regardleHM of the opinion of Cuiirt after (^ourt, or of the loss and anxiety occasionetl to the plain- tilT, — litigation without any interest in tlie pursuer, witliout any possihle lienetlt to Regained or loss to bo avoided by him; over l>earing, self wiUed —and now only jiistitied liy the Hank's oooiisel on the ground that they had a riglit to keep tht plaiiititf in a Rtati« of helplessnesH 1 st lie might urge his claims of damiges agiinst them for tlieao unfounded proceedings -appeirs to mo to be a spirit of miliue within the meaning of the Pi.iintitT's eane. Then too tiie County Oourt Judg* ha-i buen in f i;t cjuiti miHlt> I. On tlith May he de- clined to hear Walker's petition because the debt, the foundation of tli > Writ of Vttai-hinent, 10 was sworn to be above $5(K). It now turns out that the debt ha- than he hiiiH ''f does . Mr. Pollard was not cieai whether the conversations with tiie Hank agent were befor>) or after the resolutio i of the Enterprise C^ompany. This is a pity, for it would b.t interestiii..^ to know whether the conversations took place in consequence of the resolution, or whether the resolution was passed as the result of the private conversation between tlie Agents of tht* Hank and of this deeply indebted company. .\nd Mr. Pollard would not swear that the latter was not the real chronological sequence. If you think that the Bank had a reasonable cause, or wa:4 actuated by no malice, no ill will, mi launching or in continuing this litigation, then give ver- M diet for the Defendant. Buc if you liud the three ingredients, (,iud I direct you that the Insol- vency proceedings are now utterly terminated for the purpose of this action) then as to damages. The $30, OCX) claimed in the pleadings is a limit, not a guide. There are several items of damage insisted on . 1st. Good will and stoppage of business. Now there is evidence that PlaintiiF was in difficulties in 1879 — 3 overdue notes in February and March 1879 — and his business was small; still it was a going concern and he swore that $18,001) was the amount turned over in the previous year. Even Mr. Ritchie said the plaintiff was making a living; and a living in Cariboo costs something. Then you h ive evidence of $484 damage to stock, goods, &c., which had been seized in May 1879, and which was deficient and damaged when it was re-delivered to him on 17 June 188!); and damage to house and store which he lays at $1000. That last item I think 40 calculated on a wrong principle. Plaintiff's witnesses say it would take that sum to put it in its former condition. But you must give him compensation for his loss; what he has lost is the measure of damage, not what it would cost him e.g. to shovel out all the year's ttiilings, and re- place the house in statu quo. Then on all this litigation the Plaintiff has received only taxed costs; there are extra costs and expenses far beyond mere taxed costs party and party of 12 months' litigation. He says at least $1000, but that is a mere guess perhaps. Then loss of time, and pain and anxiety of mind by reason of wanton litigation. f « ■'J -I The jury will iisseHH i1iimAgi>8 for injury before iin«l since 16th Mrty 1879. I added at the request of Mr. Johnson, "That if the defendant in mistake only 'in point of Law* that is not actionable." Verdict.— No damages up to 16th May, 1875; since 16th May I5()00. Verdict of 6 out of 8. 10. 15 P.M. Mr. Johnson, Counsel for the defenihintx, took excntilion t<} tlie whole of the Judge's charge; and on his application leave was reserved to the defendants to move as they might bt< advised. Verdict:— No duniages up to Ifith May 1879; since 16th May |.5(MM). The Demurrers were argued on behalf of the defendants on the '27th of June 1881 before the Chief Justice of British Columbia and Mr.Justice (Vease. I'laintiflTs Counm«l were not called 10 upon. The judgment of the Court was delivered by — Beobie, C. J., who said: The demurrers are overruled. It is not necessary to give any reasons. Plaintiffs Counsel then moved for judgment, and defendants' Counsel argued that the ver- tlict was a verdict for the defendants on the first, second, seventh, and eighth counts and should be entered accordingly, and that judgment shojld be etifered for the defendants on all the is- sues. Beobie, C. J.— The plaintifT can take judgment for ir)00(), with costs. The verdict of the jury was given in this case on the 3rd Juno in these wonls: "We find a verdict for the plaintiff and award him no damages before the 16th May 1879 subsequent t<» 20 that date we award him 15000." This wa.s the verdict of 6 out 8 special jury men, they having rjtired for four hours. The plaintiff now moves for judgment on this verdict: and so does the defendant, as to the first part of their finding (viz ) up to 16tli May. The facts of the case have up to this last trial been so completely misconceived that I shall, in giving 4M^ leasons, state also my view of the facts. The plaintiff sues the defendant, the Bank B. N. A., for malicious proceedings in insolven- cy against him instituted and persistingly prosecute 1 under the following circumstances. Neu- felder & Co. were in and previous to the fall of 1878 traders in the Cariboo, and customers of the Bank, where their account was overdrawn. Being pressed togive security for this overdraft, Neufelder & Co. applied to the plaintiff, with whom they had business relations. The plaintiff liO was also a trader in the Cariboo, but not a customer of the Bank B. N. A. Neufelder represent- J!Lt> »wv>.<^!t^LvMu6< ed to the plaintiff the demands of the Bank for security, and begged him to give his note at .'{ J im.<*'*m.to A'^-^y months for $1250.56 alleging that amount to be due to himself f''Om the plaintiff on the accountsX *»<^-* ^ *w«.*^#»/^«,- betw een them. The plaintiff accordingly gave his note at 3 months for that amount, dated 10th -4^^*. Decemf)er ISVS : due therefore on 13 March, 1879. Walker trusted entirely to Neufeldcir's repre- sentation of th e stiite of accounts betw een th em, and knew that Neufelder intended to deposit i t with tfie BanFas collateral security . This was accordingly done, Neufelder endorsing it to the Bank, but obtaining no new advance upon it. The note was not met by Walker at m iturity. It ia now admitted that the note was given by mistake : that there was on the 10 December 1878 no such sum as f 1250 due to Neufelder from the plain' iff. In the events which happ'^nod it be- 40 came quite immaterial to consider the effect of this as between Walker and the Bank. |A>i<««#ff« Vt um/WcjC. .v,^. Neufelder & Co. became Insolvent in March 1879; and the Bank sent in their claim against the estate for the amount of the overdraft. In that statement they set out Walker's overdue note A/^.e0..rrifu * »;■• m tor II'25t> itH II coiliitt'ml HtttMiritv. On tho ItUli April lH7i>, ii (l to ut ii laootiii^of NtMifoliior's crtulihtrs, but oliju('t«ti| to by tiio Hiihk, who dill not tiiiitlly ac(;itri ut Hiirkurvillo. 'I'lm Bunk ttgnnt tln'ro Hiiilunvoroil to soixn. I think on tho 'ilrtt A p ril, on it toli'urt n. Tim writ w.ih rtitrvod on llui lira M.iy. The phiintitT iinniodiittuly lippliod to tlio (J. ('. ^id<{M ut Uiitiitii«ld to mtt listdc tlio writ: but on th hiid ninntly Coun- ty (-ourt juriHdiction mid thu iiinount rluiniod wttn lur^m thu t iIH County Court limit vi/. fAIH). 10 Tliti pliiintilf thua iippliod to Mr. JuHtico Or.ty to (virntct tl< it notion: Tho Hunk opport(>d by uouuHul, but in vuiii. Thu Hank tli«n uppcultul to tlit« f i CouiV who on liiu 'iHih Supt. IH7*.t up- hold th« order of Mr. Ju.stit!6(Jrii> itnd roinitttn! tho lu.ittor b'i;k t > ilm C-ounty ('ouil Judgo to hour lind il' *•" .ino. It hud boon oxpros.sly |H>inN)d out by M Justioo Gray thut iit that h«*iir- iug boforo thu County Court Judgo tho iiluintitF world h" .< tiglit to impugn, if ho cimld, tho affiil lit of dobt II.H woll lis the othur |>Jirticul °.rH on wliioli tlio writ wiis foundod. Whon tin' pliiintitT oniluiivo rod to ipiuHh the writ, this ulHduvit oould noc do found: being mislitiil . The County Court Juilge liowever, who liiid seen the iitRdiivit (which indeed ii|'[>oiirs to be ipiite in uoinraon form) docidod to uphold tho Insolvency: without, of course, iiiiy possil>ility of iiearing the pliiintitTs argument — ho could otfor none — ho had never seen tho affidavit, and knew noth- '20 ingof its contents. Tho plaintiff brought this douision before tho Supreme ('ourt sitting as a Full Court on tho '24th Feb. IH80 — (there were some other proceedings o i the 7th Nov. and tlth Dec. 1879) — who held that the County Court Judge had erred in upholding the sutKcioncy of a document merely from his own recollection of it, and without hearing the arguments against it: ami that, the statute having given an alleged Insolvent the viglit to impugn the alK>lavit, it' li • could, he was entitled to see it, or to have at least ovid nee of its contents, if secondary evi- dence were admissible: and further that the onus was not on him, but on the Bank, to show the contents of the affidavit: and with those declarations remitted the matter to tint (bounty Court Judge. The Bank appealed that decision to the Frivy Council, on tho IHth June IHmO, unsuccessfully. The matter then came to bo heard before the ('ouiity Court Judge: and the B.mk 'X) b eing still unable to produce the affidavit, (or make out a cast) for secondary ovideii(V) , I sup pose for none seems to have been offered) the County Court Judge annulled the Insolvency (Htli May 1880). This order was not only opposed by the Bank before the County Court Judge, but it was appealed by them to the Supremo Court again unsuccessfully: and it was not until July 1880 after his dwelling, his books, und his goods hud been for 14 months in the possession of tht) assignee, that Walker was at last enabled to regain possession of his business. .\s soon as the affidavit of the 16th April is produced, . r examination, as it was for the first time at tlitf trial of this action, the whole case of the Bank falls to the ground. The plaintiff never at. any time has been indebted to the Bank in any sum whate.er: the writ was therefore entirely un- sustainable from the very first, apart from other circumstances which I think show that it 40 ought never to have issued : and clearly, since the 16th May 1879 the Bank must have known perfectly that they had utterly abandoned all claim ligainst Walker yet thoy have endeavor- ed to sustain the writ on 10 or 12 different applications, culminating with their attempt before the Judicif)! Committee. ^;- I apprehend nothing can be clearer than that the Bank had even on the 16th April when^'**'*'^-^***^ '.- the affidavit, the sole foundation gf the writ of attachment, no provable debt against Walker, ZtU^^Z^^, /-€bi^. ine amaavit, uie Huie louuuuuuu ui lue wriii ui aiuiciiuieiiii, uu pruvuuie ueui uguiusi. «TuiKur, t *> although they had their banker's.on the note, which it was very probable might ripen into a' - " r J^c^ 'r. ^^. debt. All the interest they had in that note for 11250.56 was as a secur'ty, to make gootl any q24 ^ deficiency in Neufelder's overdraft. If that were satisfied, nothing would ever come to them 51 /A., from that note. And even if Neufelder mhnitted the ovenlmft iind tliut it was not satistieil, the Blink woulil hiive no claim on the money represented l)v th»^ note until t'ley had established the amount of ovenlraft aj^^ainst Walktr. He was not hound by any wfjrood account between Neufelder and the Bank. So far was there from being, on the KJfii .\pril, any provalih- debt from Walker to the Bank, that even the cloud blow away: The Bank were fully satistieti with- out having recource to this collateral security. Neufelder , it was as yet a potential liability only. Even if on the / AAA.. IGth April the Bank, as holders, had sued and recovered on the note, the money recovered / ' ^' would have been by no means "justly and truly" their own, but would have bet'n a])plicable in Q- ' of the ways above mentioned. The ]?ank however may inna fi<^e, though erroneously, have conceived that Walker was on that l()th April 1878 indebted to them, and that they had a right to get in the money by any method t'uey though tmost eftectual. But on the Ifith May the liank manager himself iiad join- ed the majority of Neufelder's creditors already referred to, had si^^iied the ileed of comj)o- '2f) sition and discharge for the full amount of Neufelder's overdraft, and had handed over the note in question to Mr. Neufelder. And in his afKdavit of the 24th July (I think) i\\v Bank mana- ager swears that ho had abandoned all claim against Walker as a collateral delil)erately, and had accepted in lieu of such collateral security the composition ])ayment of HOcIs in the !?1. it is difficult to conceive how ot any moment after handing back the note, he could have had a boun /'ii/e belief in Walker's indebtedness to the Bank : or wiiat possible advantagt* h«< propos- ed to himself or to the Bank in all the reiterated litigation which has been indicated. On the other hand it was clear that this litigation, and the continuance of the official assigne(> in pos- session, was evidently iujuvious to Walker. The bank had ceased to hav«( the smallest inter- est in the Insolvency. And those reduplicated appeals, always u';:,, ccessful, must hav(* Imm'ii .'{(• deliberate. When a man deliberately |)ersists in a series of actions which cannot do himself any good aud which must injure another, and to which he is calhsd by no duty, oath of office, or the like, thnt seems to me to be legal malice. A large piViL A the litigation in 1879 ami 1880, while the Bank was endeavoring to support the Insolvency, •,rii8, I think, entirely directed to a false issue, (viz) the Bank endeavored with much pains to how that Walker was in fact unablato meet his just debts. This of course drove Walker to collec! evidence to disprove the allegation. It Wi>s urged, j)robably with fatal efl'ccit before the Coiuif.y Court Judge. In the Supreme Court we found it impossibh! to exclude it from the argument, though of course we excluded all consideration of it from our judgnionts. The writ of attachment depended wholly on the debt stated in the affidavit. It matt<^rci'n tlicni, wliich note lie had endorsed to tiie Bank, not for any new advance, but nit>rely as a eoUateral Heeurity for the existing overdraft. This note was also overdue and unpaid, on the same ground as the former (viz) want of consideration: sicce recognized as just. Rut it appeared tliat the Bank had taken from Beedy an absolute bill of sale of all liis stock at fixed prices, the amount of which togetlier with some subsequent payments on ac<'ount would complet*)ly satisfy Hetdly's overilraft so that Walker, being merely liable to the Bank as a guarantor, owed them nothing on the Beedy note (which as between Beedy and Walker lias since been treated as 8atisfi«ul). The defendants attempted to argue that the bill of sale in question had been only intended as alO security, and not as an absolute sale. It may be that Beedy could set up that case as between himself and the Bank : I do not think the Bank could do so ua ag.iinst Beedy: it is quite im- possible that the Bank could do so, as against Walker. The bill of .sale, he is entitled to insist, being absolute, operated to extinguish Beeily's debt pro taiifo, Tiie nature and (iflVn't of this bill of sale seems never to have been observed until the late trial, though the Bank must have been fully aware of it. And no exi)lanation whatever is given, nor |)erhap8 can be given, why the Bunk endeavored to satisfy Beedy s supposed overdraft out of Walker's guarantee rather than out of Beedy's own goods which they held, they say, as security; and which were ample; and to the benefit of which Walker would be entitled. Then another and a very large claim against Walker was made on behalf of the Enterprise 20 Company for an alleged arrear of calls on shares held by him: a claim not resisted by the pe- titioning creditor in the Insolvency. It was alleged by the plaintiff that this claim made in the Insolvency, where Walker's hands would be in a great measure tied, had been instigated by the Bank in order to bear out the theory of Walker's general inability to meet demands on him The evidence did not demonstrate this: but it did prove relations between the Ba k and the Company which were by no means free from doubt. Walker however obtained leave to oppose this claim : and the Company thereupon immediately withdrew it, and paid all his <'ost8. Tlml 6 -2.^/ -^"^^ '^^ claim was clearly quite unfounded. These are all the claims attempted against him. In facti it appears highly pro^Ble, what Walker has all along contended, that he was in a perfectly sol- vent condition on the I6th April 1879. And it is a very r«ia,sonablo inference to draw that the 150 initial proceedings in Insolvency were proraj)t«d by the same spirit as the subsequent Bt<>|)s. And even without that inference at all, the common sense observations of Lord (Jockburn in Fit/. John vs. Mackinder (9 C. B N. 8. 531; S. C. 30 L. J. 254) are in point. "A prosecution " though in the outset not malicious, as having been undertaken on the order of a Judge, or if " spontaneously undertaken, as having been commenced in a liona fidr belief in the guilt of the " accused, may nevertheless become malicious in any of the stages through which it may have " to pass if the prosecutor, having acquired positive knowledgts of the innocence of the accus- *'ed, perseveres maU> animn in prosecuting "'ith the intention of procuring prr ne/ns the con- " viction of the accused.'' It is scarcely possible to listen with patience to the suggesti(Ui that the Bank after surrendering Walker's note on the 16th of May had not "positive knowledge " 40 that their interest was at an end: that they were not actuated nixilo aiiimo: that they have not shown the clearest intention of procuring per /'as ant nefan, the adjmlication of the Insolvent. 80*^0 in Edwards vs. Midland Railway Co. 6, Q. B. D. 287: " legal malice will be implied from " an action without just cause or excuse." And in the same sense as the present case is John- son va. Emerfc. . (6L. R. Exch. 329) which rose, like this, outof unfounded proceedings in bank- ruptcy taken by a banker. And it is quite settled that a corporation, though from one jicint of viev; it cannot be guilty of malice (whicli is an affection of the soul, and corporations have no souls) may yet be answerable in damages for the acts of its officers, if they show legal malice. The power of the Judge to deal with the verdict is now much greater than formerly. But 53 I feel sure that I am in eflfect carrying out the verdict in the aease iutended by the jury when I disregard the defendants' argument found on no damages being given up to the 16th May, and now give judgment for the plaintiff for the sum of $5000, the amount found by the jury, and costs. (On Settlino the Case for Appeal, 27 July 1882.) P. 8. Since delivering the above judgment there have been several cases decided in Eng- land which support it. According to Ex parte Young in re Kitchin (Court of Apyieal, June 1881) a judgment against a principal debtor is not binding on his surety, so as to be a provable debt against the latter — with very strong expressions by Ijord Justice James, This was said to be a case of the first improssions in England. Times 13 May. Millissich vs. Lloyds (C. A. 12 MaylO 1881) shows the view taken by the Court of pertinacious and unfounded litigation. Green )i8. Chatham Ac, Railway Co., (Q. B. D. 5 Dec. 1881) is nearly on all fours with the present case: except that here no objection is raised to the amount of damages, which indeed are very mod- erate, supposing the defendant to be in the wrong. Fitz John vs Mackinder (cited in the pres- ent case) is cited approvingly on the same point (viz. that a prosecution at first innocent may subsequently become malicious) by Mr. Justice North in Vaughan vs. Smith (26 Nov. 1881). The principles on which the Court will deal with verdicts alleged to be illogical are laid down very much as I have treated this verdict in Smitherraan va. South Eastern R'y Co. (15 June, 1882, Court of Appeal.) The power of the Court to deal with a verdict in such way as they think just is also shown in Harris va. Truman, (C. A., April, 1882), where the jury having20 found an issue one way, the Judge gave judgment against that finding, and the Court of Appeal by a majority supported the judgment: but it was never suggested that the Judge was bound by the verdict. JUDGMENT-ORDER ON DEMURRERS. IN THE SUPREME COURT OF BRITISH COLUMBIA. Between Samuel Walker, Plaintiff, and The Bank of British North America, Defendants. The 27th day of June A. D. 1881. The issues of law in this action upon the several demurrers of the Defendants to certain 30 counts of the declaration having been this day argued before the Full Court in the presence of Counsel for the Plaintiff and the Defendants, This Court doth order and adjudge that the said several demurrers be over-ruled. L. 8. Edwin Leigh, Dept. Registrar. V. I. Dist. JUDGMENT ORDER ON VERDICT. IN THE SUPREME COURT OF BRITISH COLUMBIA. Between Samuel Walker, Plaintiff, and 40 The Bank of British North America, Defendants. Monday the 27th day of June A.D. 1881. This cause having come on for trial on the second and third days of June 1881 before the 54 Honorable Sir Mtittliew Biiillie Begbie Knight Chief JuHtif.e of British Columbia jind a H|HHiaI jury and the said jury found a verdict for the Phiintiff for the sum of Five thousand dollarH, And this cause now standing for judgment and upon motion by Mr. Drake of Counsel for the Plaintiff that judgment bo rendered for ihe Plaintiff for the sura of !j!5()()() and his costs of suit and upon hearing Mr. Johnson of Counsel for the Defendants I do order that the Plaintiff re- cover against the Defendants the sum of Five thousand dollars together with his costs of suit to be tttxed . L. »■ "Matt. B. Beobie, C. J. ORDER STAYING PROCEEDINGS, Ac. IN THE SUPREME COURT OF BRITISH COLUMBIA. Between Samuel Walker, Plaintiff, and The Bank of British North America, Defendants . Upon motion thia day made by Counsel for the Defendants for a stay of execution pend- ing appeal from the judgment of the Full Court rendered herein on the 27th day of June 1881 and upon reading the aflSdavit of Edwin Johnson filed to-day and upon hearing Counsel for the plaintiff I do order that upon the defendants paying to the Plaintiff the sum of one thous- and dollars being a portion of the moneys recovered by the judgment in the action and also his costs of suit to be taxed execution on the said last mentioned judgment be stayed un- til the further order of this Court or a Judge thereof. Ajid by consent I do further order that the defendants be at liberty within four days after the next sitting of the said Full Court to move such Court for a rehearing of the argument on the demurrers delivered in this action which came on to be heard on the 27th day of June last and at the same time to move the said Full Court for a new trial or to enter up judgment for the defendants upon one or more of the counts of the declaration in the said action or other- wise as they m/.y be advised. Dated the 11th day of July A.D. 1881. Matt. B. Begbie, C. J. Afi a^ t <). &tUj.-*ujUc ^ V ■4o u*j /ku /r -I \ d , ^"''J^' L/Li/ rA^^. (SJe4,-iL^ -^^^' ^^ "^ Qji^cA CfftCC^M*^ ''^/■C, <^TclA. t. (tJU Mi/ UAc/' M ^*UL^U'H'n /^ eiii Sd' r/ (/ft Ami, /WW U^u*^'-^ /f//////^. c ^ /iC^nt . ^« J3- JieuLMu. CiCjCU<^